Volume 63 — Alabama Reports

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

From tbe Circuit Court of Talladega. Tried before tbe Hon. Louis Wyeth.

From the City Court of Montgomery. Tried before the Hon. John A. Muráis.

<p>From the Circuit Court of Covington.</p> <p>Tried before the Hon. John K. Henry.</p>

Ebom the Circuit Court of Hale. Tried before the Hon. Geo. H. Craig. The indictment in this case contained two counts.

From the Circuit Court of Washington. Tried before the Hon. H. T. Toulmin. The indictment in this case, containing only one count, charged that “Douglas Jones, alias Dug Jones, whose true Christian name is to this grand jury unknown, carried a pistol concealed about his person,” &c. After conviction, the defendant moved in arrest of judgment, on account of the insufficiency of the indictment; which motion the court overruled, and the defendant excepted.

<p> Indictment for Murder. </p> <p>1. Special tains of court; validity of indictment and trial at. — Under the statute (Code, §§ 652-3), a circuit judge has power to convene a special term of the court, in any county in his circuit, whenover, in his opinion, a special term is necessary; the jurisdiction and authority of the court at a special term, convened in pursuance of the statute, are as plenary as at a regular term ; an indictment, found by a grand jury organized at such special term, is valid, and a trial and conviction under it are neither illegal nor irregular.</p> <p>2. Statutes in Code, not originally conforming to constitutional rides as to rereising and amending laws. — The Code of 1876, purporting to embrace all public statutes, of a general and permanent nature, of force at the time of its adoption, was enacted in conformity to the provisions of the constitution; and any statute therein included, though not originally conforming to the rules prescribed by the constitution as to revising and amending laws, became valid from the day the Code went into operation.</p> <p>3. Objections to array 0/ grand jury. — The statutory provisions regulating the drawing and summoning of persons to serve as grand jurors, are expressly declared to be directory. (Code, § 4759); and any departure from them, which works no injury to the accused, is no ground of objection to the whole array.</p> <p>4. Competency of petit juroi; as affected by opinion as to guilt or innocence of accused. — Under the statute (Code, §§ 4881-82), as at common law, it is good ground of challenge for cause, that the proposed juror has a fixed opinion as to the guilt or innocence of the accused, which would bias his verdict. But, at common law, this might be made a collateral issue, and proved or disproved by other evidence than the oath of the person proposed as a juror; while the statute submits the inquiry to the sworn conscience of the juror himself, and from his testimony alone the court must determine whether he is competent. Yet, if a person having a disqualifying opinion as to the guilt of the accused should procure acceptance as a juror, whether through design or ignorance on his part, a verdict of guilty, in which he participated, would be set aside by the court, on motion for a new trial, supported by proper evidence.</p> <p>5. Same. — The “fixed opinion as to the guilt or innocence of the defendant, which would bias his verdict,” and render the person incompetent as a juror, must be such as would prevent him from rendering a verdict in accordance with the evidence as disclosed on the trial, and the law as pronounced by the court: an opinion founded merely on rumor, or formed on the hypothesis of the truth of the facts which he has hoard, and without the hearing of other facts which may contradict them, or lessen their weight, does not disqualify him.</p> <p>6. Same. — A person who says that, “from what he had heard, he had an opinion that the prisoner had killed some one, but none whether the killing was justifiable or not,” is not incompetent as a juror ; nor a person who says that he “can’t help believing what he has heard.”</p> <p>7. Same; examination of proposed juror. — After the court has examined a proposed juror, it is not error to refuse to allow the prisoner’s counsel to examine him, for the purpose of ascertaining whether he is not subject to challenge for cause.</p> <p>8. Standard medical treatises as evidence__The principle is settled by former decisions of this court, that standard medical books, in connection with proper explanation, when necessary, of the terms used, may be read to the jury as evidence in a criminal case.</p>

<p> Indictment /or Carrying Concealed Weapons, </p> <p>1. Evidence showing threatened or apprehended attack. — Under an indictment for carrying concealed weapons (Code, § 4109), the defendant having proved, to establish the defense of a threatened or apprehended attack, that he had been forcibly seized by night, a few months before the time specified by the witness for the prosecution, by a party of armed men, some of whom resided in Alabama, and others in Georgia, and carried off to a distant place, where he was set at liberty after some judicial proceeding before a magistrate; and that the persons-engaged in this attack, whose names were mentioned, and who resided near him, had declared that “ they intended to take him and carry him off again, and that they would as soon shoot him as to shoot a hog,” which threats were communicated to him ; it is permissible for him to further prove “that said parties were prowling through the country, armed, and without any employment, sometimes for a while in Georgia, dodging in and out of Alabama. ”</p> <p>2. Exceptions to charges given or refused. — Exceptions to the rulings of the court below, in the matter of charges given or refused, will not be considered by this court, when the error complained of “was not so specified as to call the attention of the judge and the adverse counsel to the particular matter supposed to be injurious to the party excepting. ”</p>

From tbe Circuit Court of Hale. Tried before tbe Hon. Geo. H. Craig. Tbe prisoner in tbis case was indicted 'for an assault on Enoch Jemison witb a knife, with intent to murder bim. No objection was raised to tbe indictment, so far as tbe record discloses, either by plea in abatement, demurrer, or motion in arrest of judgment; and tbe trial was bad on issue joined on tbe plea of not guilty.

From tbe City Court of Selma. Tried, before tbe Hon. Jona. Haralson. Tbe prisoner in this case was indicted and convicted of burglary, in breaking and entering tbe corn-crib of N. Wood-ruff and B. B. Peeples. T]je Case' is brought up on bill of exceptions reserved during tbe trial. All tbe material facts are stated in tbe opinion of tbe court. cited McCall v. The State, 4 Ala. 643 ; 2 Wharton’s Amer. Cr. Law, §§ 1550-51; 2 East’s Crown Law, 490; 1 Hale’s P. C. (ed. 1847) 555.

Erom the Circuit Court of Butler. Tried before the Hon. John K. Henry.

Tried before the Hon. John A. Minnis. The indictment in this case contained but a single count, which'charged that Scott Smith and Edward Watts, “by rude and indecent behavior, or by profane or obscene language, willfully disturbed females, members of the society called ‘ Daughters and Sons of St. Luke of the ancient, grand, united order of St, Paul,’ at the Fair grounds in or near the city of Montgomery, met for the purpose of instruction, amusement, or recreation; against'…

Tried before the Hon. Geo. H. Craig. The indictment in this case was found at a regular term of the late Court of Quarter Sessions of said county, and the cause was transferred, on the abolition of that court, into the Circuit Court. The opinion states the facts shown by the record, as to the organization of the grand jury by which the indictment was found. There was a demurrer to the indictment, but the record does not show the action of the court upon it.

From the Circuit Court of Crenshaw. Tried before the Hon. John K. Henry.

From the City Court of Montgomery. Tried before the Hon. John A. Minnis. The prisoner in this case was indicted for an assault on Spencer Brooks, with the intent to murder him, and went to trial on the plea of not guilty.

From the City Court of Montgomery. Tried before the Hon. John A. Minnis.

<p>Erom the City Court of Mobile.</p> <p>Tried before the Hon. O. J. Semmes.</p> <p>cited 1 Greenl. Ev. §§ 51, 52, 218; The State v. Parke, 48 Ala. 266; Insurance Go. v. Moseley, 8 Wallace, 897 ; Rauoson v. Haigh, 2 Bing. 99 ; Rex v. King, Euss. & By. 331; State v. Gilliam, 50 Ala. 145; Miller v. The State, 54 Ala. 155; Burrill on Cir. Ev. 476-7 ; Liles v. The State, 30 Ala. 24.</p>

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

From tbe Circuit Court of Lee. Tried before tbe Hon. James E. Cobb. The indictment in this case charged, .that tbe defendant, “ Zack, alias Zackariab Haley, did falsely and maliciously-speak of and concerning Emma Matthews, in tbe presence of Bobert Goins, charging her witb a want of chastity, in substance as follows : that he, tbe said Zack Haley, bad bad sexnal intercourse witb said Emma Matthews twice ; against the peace, ¿so.

<p>From the Circuit Court of Greene, on appeal from County Court.</p> <p>Tried, before the Hon. L. R. Smith. ■</p>

From the Circuit Court of Cherokee. Tried before the Hon. John Henderson. The defendant in this case was indicted for carrying concealed weapons, and was tried on issue joined on the plea of not guilty.

From tbe Circuit Court of Shelby. Tried before the Hon. John Henderson. This prosecution was commenced before a justice of the peace, and was removed into the Circuit Court by appeal on the part of the defendant. The warrant of arrest, issued by the justice, charged the defendant with “ the offense of failing to work the road; ” and the offense was thus described in the affidavit, on which the warrant was founded.

From the Circuit Court of Tuskaloosa. Tried before the Hon. ¥i. S. Mudd. ' The prisoner in this case, who was a freedman, was indicted for the murder of Tom Isham, who was also a freedman; and on his trial he reserved the following bill of exceptions, on which the case is brought to this court, to-wit: “ The State introduced several witnesses, whose testimony tended to prove that, on the night of the 2d April, 1878, in the county of Tuskaloosa, Tom Isham, a colored man, was…

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

From the City Court of Montgomery. Tried before the Hon. John A. Minnis. The defendant in this case was indicted for carrying concealed weapons.

From the Circuit Court of Talladega. , Tried before the Hon. Jqhn Henderson.

From the Circuit Court of Perry. Tried before tbe Hon. Geo. H. Craig. The indictment in this case charged, in the first count, that the defendant, William Ashworth, “ unlawfully or wantonly killed an ox, of the value of twenty-five dollars, tbe personal property of James Cook;” and in the second, that he “did unlawfully or wantonly kill, disable, disfigure, destroy, or injure an ox,” &e., the property of said'Caok.

<p>Indictment for Murder.</p> <p>1. Organization of grand jury. — The statute provides that eighteen persons, neither more nor less, shall be drawn and summoned as grand jurors (Code, § 4738); and further (6 4753), that the grand jury, when organized', shall consist of not less than fifteen; and when, of the persons regularly drawn and summoned, fifteen appear, and are ready and capable to discharge the duties of grand jurors, the grand jury should be organized with them only (§ 4754), and the court has no power to add to the number.</p> <p>2. Same; objection to indictment, on account of defects in. — An indictment, returned by a body organized by the court without authority oí law as a grand jury, will not support a judgment of conviction.</p>

From the Circuit Court of Lee. Tried before the Hon. James E. Cobb.

<p> Indictment for Carrying Concealed Weapons. </p> <p>1. Declarations not to be garbled. — To make out a threatened or apprehended attack, as a defense to a prosecution for carrying concealed weapons (Code, § 4109), the defendant offered in evidence a letter written by the prosecutor to the chief of police, in which the writer slated “that he did not wish to violate the law, nor to be arrested for violating the law, but that he understood the defendant had made threats against him, and was therefore carrying a pistol concealed about his person.” Reid, that the contents of the letter could not be garbled by the defendant, but must be taken altogether as written ; and that the court properly refused a charge, requested by him, to the effect “that what was said in the letter about any threats made by him could not be considered by the jury as evidence.”</p> <p>2. Threatened or apprehended attack; relevancy of evidence as to. — To make out the defense of a threatened or apprehended attack, within the statutory exception, the motive (or purpose) of carrying the weapon must be defense against violence, threatened or apprehended. If offense instead of defense— a meditated attack on another, and not an apprehended attack by him — be the real motive, the party is guilty of violating the statute ; and as bearing on this question, the conduct and declarations of the accused and the prosecutor, during a'n altercation and subsequent rencontre between them, out of which the prosecution arose, are relevant and competent evidence.</p> <p>3. General objection to evidence. — A general objection and motion to exclude a mass of evidence, some of which is legal and admissible, may be overruled entirely.</p> <p>4. Threatened or apprehended altaelc. — To establish the defense of a threatened attack, the threat must be real, and not simply apparent, or simulated ; but, to make out an apprehended attack, it is seffieient to show facts which may convince the jury that he had good reason to apprehend an attack — as reports of threats, believed to be true, though not true in fact; hostile demonstrations ; preparations for attack, real or apparent, and the entire conduct of the parties.</p> <p>5. Charge as to amount of fine to be assessed by jury. — In a prosecution for carrying concealed weapons, the court may properly instruct the jury, that, if they find the defendant guilty, they should assess such fine, within the limits fixed by law, as they may deem necessary to suppress the evil practice of carrying concealed weapons.</p>

Tried before the Hon. John A. Minnis. The indictment in this case charged that the defendant, Levi Graves, with .others, “ broke into and entered a railroad ear, upon or connected with the Western Railroad of Alabama, in which car goods, merchandise, or meat, of the value of fifty dollars, was kept for use, deposit, or transportation, with intent to steal; against the peace,” &o. There was a motion in arrest of judgment, on account of the insufficiency of the indictment, in…

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

Erom the Circuit Court of Dallas. Tried before the Hon. Geo. H. Craig.

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

From the City Court of Montgomery. Tried before the Hon. John A. Minnis. The defendant in this case was indicted for burglary, in breaking and entering “the law-office of Sayre & Graves” in the city of Montgomery, with the intent to steal. The indictment also contained a count for the larceny of a pocketbook, the property of P. T. Sayre, containing bank bills, particularly described, of the aggregate value of forty dollars; but a demurrer was sustained to this count.

Eeom the Circuit Court of Perry. Tried before the Hon. Geo. H. Craig.

From the City Court of Montgomery. Tried before the Hon. John A. Minnis. The defendant in this case was arrested under a warrant, issued by a justice of the peace, charging him with the offense of petit larceny; and on his trial before the justice, on the 14th January, 1880, he was convicted, and sentenced to hard labor for the county for the term of six months.

<p> Indictment for Burglary. </p> <p>1. Quashing indictment, that mother may be preferred. — When the record shows an irregularity in the organization of' the grand jury, for which a judgment of conviction would be reversed on error or appeal, although the defect is not discovered until after the trial has commenced, the court may quash the in dictment (Code, § 4819), and order the case to be brought before another grand jury.</p> <p>2. Jeopardy. — A defendant, in a criminal case, is never in jeopardy, when the indictment against him is so invalid that a judgment upon it would be annulled on appeal, no matter what may be the stage of the prosecution when, for that reason, it is quashed.</p> <p>3. Limitation of prosecution; when statute is suspended. — When an indictment is quashed, on account of a defect in the organization of the grand jury, and another indictment is preferred, “the time which elapsed between the finding of the first and the subsequent indictment must be deducted from the time limited by law for the prosecution of the offense,” (Code, § 4820). The expressions used in the case of Finley v. The State (61 Ala. 201), as to the utter invalidity of an indictment found by a body of men not legally organized as a grand jury, are not to be construed as meaning" that such an indictment would not suspend the running oi the statute of limitations as above provided.</p>

From Madison County Court. Tried before the Hon. William Richardson. This was a prosecution for unlawfully or wantonly killing-a cow, the property of Mrs. Mattie McMullen, and was commenced and tried in the County Court. On all the evidence adduced, which is set out in the bill of exceptions, “ the court found the defendant guilty, and fined him ten dollars;” to which judgment and decision the defendant duly excepted-It is unnecessary to state the evidence.

Tried before the Hon. Geo. H. Craig. The record in this case shows that, on the 17th January, 1877, a warrant of arrest was issued by a justice of the peace against Henry Johnson, founded on an affidavit charging him with the offense of trespass after warning, and commanding that he be brought before the justice on the 21th day of that month, to answer the offense.

Prom the Circuit Court of Chambers» Tried before the Hon. Jambs E. Cobb.

From the Circuit Court of Tuskaloosa. Tried before the Hon. Wm. S. Mudd.

<p> Indictment for Arson. </p> <p>1. Discredited witness ; weight of testimony of. — There is no maxim of the law of evidence which requires greater caution in its application, than that which affirms that a witness, intentionally giving false testimony as to any material fact, is to be wholly discredited by the jury ; and this court “follows the authorities which hold that it is not a rule of law, affecting the competency, operating a disqualification of the witness, to be given in charge to the jury as imperatively binding them, but is to be applied by them, according to their sound judgment, for the ascertainment, and not for the exclusion of truth.”</p> <p>2. Arson; constituents of offense. — Setting fire to a store-house, with the intent that the fire should be communicated to, and should burn, a dwelling-house situated near by, is, in law, deemed the burning of the latter.</p>

From the Circuit Court of Russell. Tried before the Hon. Wi. S. Mudd. The indictment in this case charged the defendant, Marion McNeezer, with the murder of Charles Yo.ung, by cutting him with a knife; and on the trial, issue being joined on the plea of not guilty, he was convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentary for the term of ten years.

From the Circuit Court of Bussell. Tried before the Hon. James E. Cobb. The indictment in this case was found in October, 1879, and charged that the defendants, Scott Armor and Ivey Doles, “ unlawfully and with malice aforethought killed Susan Calhoun, by cuting her with a knife.” The defendants each pleaded not guilty, and were jointly tried.

From the Circuit Court of Wilcox. Tried before tbe Hon. John K. Henry. The indictment in this case was found in May, 1879, and charged that the defendant, “ not having first procured a license as a retailer from a-proper legal authority, did sell vinous or spirituous liquors, which was drunk on or about the premises.” The defendant pleaded not guilty, and issue was joined on that plea.

From the Circuit Court of Sumter., Tried before the Horn-Wm. S. Mudd¡ The prisoner in this case was indicted in Octobei*, 1879, for the murder of John W. Pierce in 1868. He pleaded not guilty to the indictment, and was tried on that plea; was found guilty of murder in the first degree, and sentenced to the penitentiary for life.

From the Circuit Court of Bandolph. Tried before the Hon. John Henderson. The prisoner in this case was indicted for the murder of Luke Hodnett, by striking him with a gun.

From the County Court of Madison. Tried before the Hon. William Richardson. This case originated in the Circuit Court, where the indictment was found, and was transferred to the County Court, as a cause undisposed of at the end of the term, under the provisions of the act to regulate the trial of misdemeanors in said county, approved February 9, 1877. — Sess. Acts 1876-7, p. 149.

Application by petition for the writ of habeas corpus, to procure tbe discharge of Samuel Brown from custody and imprisonment by the jailor of Jackson county, under a mittimus, or order of commitment, issued and signed by W. L. Kirkpatrick, a justice of tbe peace of said county.

From the City Court of Mobile. Tried before the Hon. O. J. Semmes.

From the Circuit Court of Pike. Tried before the Hon. H. D. Clayton. The indictment in this case charged that the defendant, -King Henderson, “ upon the public highway, near the premises of James Blackman, and in the presence of Ruthy B. Blackman, a female, did make use of abusive, insulting, or vulgar language, to-wit,” specifying the words.

Tried before the Hon. John Henderson. The record in this case shows that, on a preliminary examination before a justice of the peace of said county of Cullman, Josiah Evans, charged with burglary, was committed to the custody of the jailor; the order of commitment directing the jailor to “detain him until he is legally discharged.” There being no jail in said county, the prisoner was committed to the custody of the sheriff of Blount county; and that officer admitted him to…

Tried before tbe Hon. H. T. Toulmin. The record in tbis case shows that, in October, 1873, an indictment was found in said court against John Little, for the murder of Zedo Shanklin; that at the April term, 1875, the defendant never having been arrested, an order was entered on the minutes, granting permission- to the solicitor to withdraw and file the indictment, with leave to have it reinstated ; that at the April term, 1877, in open- court, by an order duly entered on the…

From the Circuit Court of Bullock. Tried before the Hon. H. D. Clayton. The defendant in this case was indicted, jointly with one James Williams, for breaking into and entering the dwelling-house of Spelmau L. Latham, with intent to steal. The defendant, being on trial alone, pleaded not guilty; and issue was joined on that plea.

Tried before the Hon. Geo. H. Craig. The record in this case shows that, in April, 1878, an indictment for perjury was found in ' said court against Isaac Peck; and that, at the same term of the court, he was admitted to bail in the sum of one hundred and fifty dollars, with W. W. Powers and others as his sureties, conditioned for his appearance at the next term of the court, and from term to term thereafter until discharged by law.

This was a motion by John Mayfield, to establish a bill of exceptions, which he claimed to have reserved during his trial at a late term of the Circuit Court of Lauderdale, Hon. W. B. Wood presiding, and which the presiding judge refused to examine or sign, on objection by the solicitor, because it was not presented for his signature before the adjournment of the court, and the solicitor had not consented in writing that it might be signed after the adjournment.

Tried before tbe Hon. Jona. Haralson. This action was brought by H. H. Stewart against Noadiah Woodruff, to recover damages for an alleged false arrest and imprisonment, and was commenced on tbe 14th February, 1877.

<p> Garnishment on Judgment. </p> <p>1. Garnishment of debt due for taxes. — On grounds of public policy, a judgment creditor of a municipal corporation can not, by process of garnishment, reach and subject funds accruing to it by taxation, either while in the course of collection by suit, or after they have been paid into its treasury. (Overruling Smoot v. Hart, 33 Ala. 69).</p>

.Tried before the Hon. H. 3). Clayton. This action was brought by John T. Copeland against the appellant, as a common carrier, to recover $1200 “as damages for the failure to deliver certain goods, to-wit, one bale of bedding, received by the said railroad company as a common carrier, at Troy, Alabama, on the 20th November, 1877, to be delivered to the plaintiff at Texarkana, Texas, for a reward; which said railroad company failed to do.” The only plea was the general issue,…

<p>Appeal from the Circuit Court of Macon.</p> <p>Tried before the Hon. James E. Cobb.</p>

Tried before the Hon. H. T. Toulmdj. This action was brought by Ira W. Porter & Co., the appellees, to recover a lot in the city of Mobile, particularly described in the complaint; and was commenced on tbe 1st February, 1879. Tbe summons and complaint were served on W. L. Eggleston, tenant in possession; and John Welch was admitted to defend as landlord.

The petitioner in this case was indicted, jointly with a negro woman, for the murder of an infant child a few days old, which had been killed and buried, and of which the woman was supposed to be the mother.

Tried before the Hon. John A. Minnis. This was a statutory contest as to the right to a homestead exemption in certain lands in said county of Montgomery, on which an execution had been levied in favor of Edward Blum against Henry C. Carter. The plaintiff’s judgment against said Carter, on which the execution issued, was rendered on the 7th November, 1872; and it was founded on a promissory note, dated tbe 10th February, 1870, aud payable at a date not shown by the record.

<p> Bill in Equity to Enforce Vendor’s Lien on Land. </p> <p>1. Service of process on infants.- — When infants are joined with their father, as defendants to a bill in chancery, the rule of practice (No. 23) requires that the service of process shall be made upon their father, for them, whether they be under or over fourteen years of age; and the service of process upon them personally, being unauthorized, is not sufficient to bring them into court.</p> <p>2. Appointment of guardian ad litem for infant. — Until infants are properly brought into court, by the service of process according to the rules of practice, the appointment of a guardian ad litem for them is irregular, unauthorized, and not sufficient to support a decree against them.</p> <p>3. Attorney; appointment of, and appearance by.- — An infant can not appoint an attorney; hence, when an infant defendant to a bill has not been properly brought in as a party, pleadings signed by an attorney, though purporting to act as “solicitor for all the defendants,” do not bring the infant into court, nor amount to an appearance by him.</p>

Tried before tbe Hon. J. Q. Smith. This was a statutory trial of the right of property in twenty-five boxes of tobacco, between J. M. Peters & Brother, of Virginia, as plaintiffs, and J. Loeb & Brother, of Montgomery, as claimants.

Tried before tbe Hon. Geo. H. Craig. This action was brought by Geo. Eiser, William A. Welch, A. D. Bell, M. L. Wilson, and Martha Pope, against William J. Evans and several other persons, who were his tenants, to recover a certain tract of land in said county, with damages for its detention; and was commenced on the Bd February, 1874. The lands had belonged to George 0.

Tried before the Hon. H. D. Clayton. This action was brought by Rabun S. Stow against Newell M. Thornton, tenant in possession, to recover the possession of a house and lot in the town of Lawrenceville in said county, containing about two acres, together with damages for its detention; and was commenced on the 8th February, 1878.

Louis Wyeth. This action was brought by Albert G. Henry, against John H. Neely; was commenced on the 4th August, 1879, and was founded on a promissory note, signed by the defendant, of which the following is a copy: “ $134.34. Guntersville, Ala., January 1st, 1877.

Tried before the Hon. Vi. L. Whitlock. This action was brought by Mrs. Sarah McLendon against the appellant, a corporation chartered under the laws of Alabama, to recover damages on account of personal injuries sustained by her while crossing a bridge on the public road between Calera and Elyton, at a place where the track of the railroad crossed the public road; the injury being caused by the horse, which the plaintiff was riding, falling through the rotten planks of the…

<p> Trespass for Injuries to Land by Milt-Dam. </p> <p>1. Opinion of witness ; when not admissible. — In an action of trespass, to re-' cover damages for injuries caused by the erection of a mill-dam, whereby a stream was diverted from its natural channel, and overflowed plaintiff’s land, a witness can not be allowed to state that, in Ms opinion, plaintiff’s land was not injured by the diversion and overflow.</p>

Tried before the Hon. Louis Wyeth. The record in this case shows that, on fh© 1 st February, J875, an action was instituted in said court by Henry B. Campbell, against William J. Haralson and Terrence Reynolds, “partners under the name and style pf W- J. Haralson & Co.”, founded on a “due-bill executed by them on the 8th day of January, 1874, and payable to plaintiff”; that judgment was rendered in this action, op the 24th September, 1877, in favor of the plaintiff, for…

Tried before the Hon. John K. Henry. cited Rottenbury v. Pipes, 53 Ala. 450; MeOuan v. Tanner, 54 Ala. 85; Alabama Conference v. Vaughan, 54 Ala. 445,; 7 U. S. Digest, 267, 277, and cases there cited; Thompson on Homesteads and Exemptions, § 943, and authorities there referred to. cited Leslie v. Tucker, 57 Ala. 483 ; Tlx parte Beavis, 50 Ala. 210; York v. York, 38 Illinois, 522; Hastings v. Myers, 21 Mo. 519; Taylor v. Taylor, 53 Ala. 135; Thompson on Homesteads and…

Tried before tbe Hon. John Henderson. This action was brought by Daniel C. Pearce, against Benjamin A. Clements, to recover a certain tract of land, with damages for its detention. The record does not show when the action was commenced.

Tried before the Hon. James E, Cobb. This action was brought by the administrators of the estate of Bennett Davis, deceased, against Mrs. Eliza T. Davis, his surviving widow, to recover certain articles of household and kitchen furniture, and other things particularly enumerated in the complaint; and was commenced on the 26th May, 1877. The defendant pleaded “the general issue, in short by consent”; and issue was joined on that plea.

Tried before the Hon. John K. Henry. This action was brought by Earley, Spear & Co., suing as a partnership, against James M. Whitehead, to recover “ten acres of land in the city of Greenville, known as the homestead of John M. Sutherlin, and lately occupied by him;” and was commenced on the 7th March, 1876. J. M. Sutherlin, “ on his own motion, was admitted to defend as the warrantor of said Whitehead,” and pleaded not guilty; and issue was joined on this plea.

Tried before the Hon. H. D. Clayton. This,action was brought by Thomas G. Blackman, against John W. Dowling; was commenced on the 20th August, 1874r and was founded on a written contract, or promissory note, signed by the defendant, of which the following is a copy : “Ozark, Ala., Dec. 29th, 1869.

From the Circuit Court of Talladega. Tried before the Hon. John Henderson. The prisoner in this case, George Boswell, was indicted for the murder of Eliza Embry, by stabbing her with a knife; was tried on issue joined on the plea of not guilty; found guilty of murder in the first degree, and sentenced to be hanged.

Heard before the Hon. N. S. Graham. The' bill in this case was filed on the 6th July, 1877, by Joseph G. Blount, against John W. Hurt; and sought to foreclose a mortgage on a tract of land, which was thus described in the bill: “a mortgage on one thousand and twenty acres of land, more or less, described as follows: section twenty-four (24), township fourteen (14), and range twenty-eight (28); also, the north half of section twenty-five (25), township fourteen (14), range…

<p> Action against Husband and Wife, for Price of Necessaries. </p> <p>1. Sufficiency of verdict. — In an action against husband and wife, seeking to charge the wife’s property, particularly described, and alleged to belong to her statutory separate estate, with the price of necessary family supplies sold and delivered (Code, § 2711); a verdict, finding the issue in favor of the plaintiffs, assessing their damages at a specified sum, and further finding “the following separata estate to belong to’’ the wife, is sufficient to support a judgment for plaintiffs, although it does not, in words, find that the property belongs to the statutory separate estate of the wife.</p>

Court of Kandolph. Heard before the Hon. B. B. McCraw. The bill in this case was filed on the 20th April, 1872, by Mrs. Lucy L. Dupree, since deceased, against William E. Gilbert and his wife, Mrs. Frances G. Gilbert; and sought to enforce and foreclose a mortgage on a tract of land, which the defendants had executed to the complainant, to secure the payment of a promissory note for $600, which they had borrowed from her.

<p>Appeal from the Circuit Court of Randolph.</p> <p>Tried before the Hon. John Henderson.</p>

Heard before 'the Hon. N. S. Graham. The bill in this case was filed on the 2d January, 1877, by James C. Freeman, as trustee for several minor children, who were joined with him as complainants in the bill, against John W. Hurt and others; and sought, among other things, the foreclosure of a mortgage given by said Hurt to Freeman, as trustee, to secure the payment of a note for money loaned.

Heard before the Hon. N. S. Graham. The bill in this case was filed, on the 6th July, 1874, by E. B. Stoddard, a merchant doing business in Charleston, South… Held: that the defendants were severally estopped from setting up these defenses; and he therefore rendered a decree for the complainant, ordering a sale of the mortgaged lands. From this decree Thurman only appeals, and he assigns it as error, so far as it subjects the lands claimed by him to sale under the mortgage.

Tried before the Hon. O. J. Semmes. This action was brought by R. W. Geiger & Co. against James Hussey, and was commenced on the 6th February, 1878.

<p>Motion against Sheriff for Failure to Return Execution,</p> <p>1. Return day of execution, under general law, and special statute in Mobile, Under the general statutes of the State, the ’return term of an execution is the term next after its date, except when it is issued less than fifteen days before the commencement oí that term (Code, §3191), and the sheriff is required to make return o,f the writ three days before the first day of the term; but, under the special statute regulating the practice in the Circuit Court of Mobile, approved February 28th, 1870, which is still of foi-ce in this particular, an exe. cution is returnable on the first Monday in the month next after the expiration of five months from the day it is issued.</p>

Tried before the Hon. W. L. Whitlock. This action was brought by N. B. Leath, against George Agnew; was commenced on the 9th August, 1873, and was founded on a replevin bond, signed by said Agnew as surety for William Johns, in an attachment suit instituted against him by said Leath, the plaintiff in this suit.

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 23d December, 1875, by John -W. Heacock and D. B. Biser, as executors of the last wifi and testament of George Biser, deceased, against William E. Barnett; and sought to enforce a vendor’s equitable lien for the unpaid purchase-money of a tract of land, of which said Barnett was in possession, and which he had bought from one James S. Bowdon, giving his three notes for the purchase-money, each for…

Application by petition, verified by affidavit, for a writ of prohibition, or other appropriate remedial writ, to the Circuit Court of Mobile, Hon. H. T. Toulmin presiding, to restrain any further proceedings in a certain cause or suit, therein lately instituted by the American Union Telegraph Company, a corporation chartered under the laws of Louisiana, to procure by the judgment of the court an easement for the erection of its poles and wires over and along the line of the…

Tried before the Hon. Wm. S. Mud:d. This action was brought by Rumsey & Co., against the mayor and aldermen of the city of Birmingham, to recover the sum of $1619.75, the agreed price of a fire-engine, hose carriage, On these facts, and others stated in the bili of exceptions, the court gave the following charges to the jury, which were in writing: “1.

Heard before the Hon. H. Austell. The bill in this case was filed on the 30th August, 1877, by Antonio Philippe, as the executor of the last will and testament of Charles P. Antomarchi, deceased, against Thomas S. Bussell; and sought, to recover from the defendant contribution for the cost of erecting a party-wall between two adjacent lots and houses, owned by the complainant .and defendant respectively, or compensation for the use by the defendant, in the erection of his…

Tried before the Hon. John K. Henry. This action was brought by Louisa Stringer, against Philemon B. Waters, and was commenced on the 7th April, 1877.

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 8th December, 1869, by the administrator de bonis non of the estate of J ohn W. Gordon, deceased, against Mrs. Jane W. Gordon, the widow of said decedent, John W. R. Gordon, the only child of said John W. and Jane W. Gordon, and several other persons.

Tried before the Hon. Luther R. Smith. This action was brought by Henry A. Tutwiler, against A. S. Steele, John J. Steele, and Robert Harkness; was commenced on the 31st August, 1877, and was founded on a penal bond executed by the defendants, which was in the following form: “ Know all men by these presents, that we, Andrew S. Steele as principal, and John J. Steele and Robert Harkness as sureties, are held and firmly bound unto H. A. Tutwiler, in the sum of one thousand…

■ Heard before the Hon. H. Austell. The bill in this case was filed on the 12th October, 1877, by Elode Bercy and others, infants suing by their next friend, against Edward Bercy (their father), Giovanni Lavretta, and Henry Molloy; and sought to annul and set aside, so far as the rights of the complainants were affected, a deed of conveyance for a lot or parcel of land in the city of Mobile, executed by their father and mother to said Molloy and one Horgan, who afterwards…

Application by petition by Thomas Branch & Co. and others, for a writ of prohibition, or other remedial writ, directed to Hon. Charles Turner, chancellor of the Middle Chancery Division, to restrain the confirmation by bim, in vacation, of a report of sale made by the register in chancery at Selma, under a decree foreclosing a mortgage. cited Cullum v. Casey & Co., 1 Ala. 351; Byrd v. McDaniel, 26 Ala. 582; Qarlick v. Dunn, 42 Ala. 404; Wightman v. Karsner, 20 Ala. 446 >…

Heard before the Hon. H. Austill. The bill in this case was filed on the 16th March, 1877, by James Tell, as the administrator of the estate of Bennett B. Bass, deceased, against John Earner and Alfred Holly; and sought to subject a certain tract of land, in the possession of said Holly, to the payment of the purchase-money due to the estate of Bass.

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 2d July, 1879, by Nelson A. Crawford, on behalf of himself and the other creditors of Patrick, Irwin & Co., against Robert M. Campbell; and sought an account and settlement of an assignment executed by said Patrick, Irwin & Co. to said Campbell, as trustee, for the benefit of their creditors.

Tried before the Hon. H. D. Clapton. This action was brought by John Cunningham, against Copeland & Brantley as partners, to recover damages for the breach of an attachment bond, which the said Copeland & Brantley had executed in an attachment suit instituted by them against said Cunningham.

Heard before the Hon. Charles Turner. This case was before the court at two former terms, and may be found reported in 54 Ala. 646, where all tbe material facts of the case, as then presented, are stated. The opinion delivered by this court on the first appeal, at June term, 1871, seems never to have been reported. The record on the present appeal contains only the proceedings had in the cause since the last reversal.

Tried before the Hon. John A. Minnis. This action was brought by Vm. D. Graves, against Louis Goetter, David Weil, and Louis Shulman, who are described in the summons, but not in the complaint, as “late partners doing business in the name of Shulman, Goetter & Wail;” and was commenced on the 3d July, 1878. The summons and complaint were served on Goetter and Weil, and returned not found as to Shulman; but the action -was treated as a suit against the partnership.

Louis Wzeth. This action was brought by Thomas Lile, against J ames L. Martin, to recover the possession of a certain tract of land in said county, together with damages for its detention; and was commenced on the 1st August, 1877.

Tried before the Hon. John H Henry. This action was brought by J. E. Fore, against B. L. Hibbard, to recover “three walnut show-cases, one walnut office-chair, one soda-fount, and syrup bottles and glasses belonging thereto,” and numerous other articles, together with damages for their detention; and was commenced on the 20th December, 1875.

Heard before tbe Hon. H. C. Speake. Tbe bill in this case was filed on tbe 6tb May, 1878, by Jackson Phillips, against tbe widow (personally and as administratrix) and children of William M. Ash, deceased ; and sought to subject a tract of land, which had belonged to said William M. Ash in his life-time, and on which an attachment had been levied at the suit of the complainant, to the satisfaction of the judgment in the attachment case, which had been rendered against the…

Heard before the Hon. H. C. Speake. The bill in this case was filed on the 20th May, 1879, by James T. Neville, as the personal representative of Worley White, deceased, against the Life Association of America, a corporation chartered under the laws of Missouri; and sought to enjoin a sale of lands under a power contained in a mortgage, and to have the mortgage cancelled and annulled, on the ground that the defendant was only a surety on the note which it was given to…

Tried before the Hon. Geo. H. Craig. This action was brought in the name of the State, on tbe relation of N. W. Woodruff, against Eobert J. Davidson, to test bis right to hold the office of mayor of the city of Selma ; and was commenced on the 29th September, 1879.

Heard before the Hon. H. C. Speaxe. These two cases were argued and submitted togother, and present precisely the same questions. The bills were filed by the same parties, and on the same day; and they are almost identical in language, except in the statement of names, amounts, &c., connected with the two judgments against which relief was sought.

<p> Bill in Equity to set aside Probate of Will. </p> <p>1. When remainder is vested. — Under a devise of lands to a married woman for life, “and after her death to her children then living,” the children take a vested remainder, as distinguished from one that is contingent.</p> <p>2. Competency of devisees and legatees as attesting witnesses to will, underact •of 1806, and Code of 1852. — The act of 1806, relating to the attestation of wills, and devises or bequests to subscribing witnesses thereto (Clay’s Digest, 596, §§ T-8), was a substantial re-enactment of the English statutes (29 Car. 2, and 25 Geo. 2); and the latter statute, declaring a legatee or devisee competent as an attesting witness, but avoiding his legaoy or devise, was carried into the Code of 1852 (§ 1608).</p> <p>3. Same; under act of February 14, 1867, and Revised Code. — This section of the Code of 1852 (§ 1608) was expressly repealed by the act approved February 14, 1867 (Sess. Acts 1866-7, p. 455), and was therefore omitted from the Revised Code of 1867. But this repeal and omission did not revive the common-law rule as to the competency of legatees and devisees as attesting witnesses to wills: it was the effect and result of the general statute, of which the repealing section was a part, and which was intended as a revision of the whole subject of the competency of witnesses as aifected by interest or 'connection with the suit or proceeding.</p> <p>4. Competency of witnesses as affected by interest:; exception as to suits by or against executors or administrator's. — The great purpose of the said act of February 14, 1867 (Rev. Code, § 2704), was to enlarge the competency of witnesses, by removing interest or connection with the cause as a disqualification; and the only exception or exclusion made by the statute was as to transactions with, or statements by any deceased person, whose estate was interested in the result of the suit; the reason of the exclusion being, that there should not be admissibility, where there can not be mutuality. The present statute (Code; § 3058) is a continuation of the same policy.</p> <p>5. Application for probate of will; nature of proceeding. — An application for the probate of a will, in the Probate Court, is a proceeding in ran, the purpose of which is to establish the status of the estate; and it does not assume the form or character of a suit inter partes, until the heirs or distributees intervene as parties.</p> <p>6. Contest of probate of will in equity. — If the application for probate is not contested in the Probate Court, but the heirs or distributees afterwards seek to set aside the probate by bill in equity (Code, § 2336), which is a statutory substitute for probate in solemn form, the character of the proceeding is not changed so far as the estate is concerned, though it is an adversary suit between the parties claiming under and against the will.</p> <p>7. Competency of legatee or devisee as attesting witness to will —It results from the principles above stated, that under the Code of 1867 (§ 2704), and under the present Code (§ 3058), a legatee or devisee may be an attesting witness to the will, and may testify to its execution in any suitor proceeding in which it may be involved.</p>

Heard before the Hon. H. Austill. The original bill in this case was filed on the 10th August, 1871, by John Gr. Parham and Beverly Blunt, partners doing business under the firm name of Parham & Blunt, against .the administrator, widow, and children of Harry W. Adams, deceased; and sought to foreclose a mortgage on a tract of land, executed by said Adams in his life-time.

Tried before the Hon. Louis Wyeth. This action was brought by Henry F. Temple and Joseph F. Shipp, as partners under the firm name of “Southern Pump and Pipe Company,” against Benjamin F. Bynum, to recover a mule, together with damages for its detention; and was commenced on the 8th January, 1877.

Heard before the Hon. Charles Turner. The bill in this case was filed on the 6th August, 1875, by Noadiah Woodruff, as the assignee of Oscar F.… Held: that the agreement created a partnership between Couch and Harrell, and that the complainant was entitled to an account of the partnership transactions; and he therefore ordered a reference to the register, as master, “ to take and state an account of said partnership transactions between said parties, under the contract of…

Heard before the Hon. H. C. Speake. The bill in this case was filed on the 20th June, 1879, by Mrs. Mary C. Struve, the wife of William F. Struve, against Mrs. Jane H. Childs; and sought to enjoin the defendant from selling a house and lot in Huntsville, which was particularly described, under a power contained in a mortgage executed to her by John M. Crowder and William P. Newman, who afterwards sold and conveyed the property, subject _ to the mortgage, to the complainant.

Tried before the Hon. John K. Henry. This action was brought by Joseph N. Miller, as administrator de bonis non of the estate of Elizabeth E. Irby, deceased, against Lucy T. Irby, as the administratrix de bonis non of the estate of Christopher P. Irby, deceased; and was commenced on the 18th May, 1876.

Heard before tbe Hon. A. W. Dillard. The bill in tbis case was filed on the 22d March, 1876, by tbe “Citizens Mutual Insurance Company,” a corporation chartered under the laws of this State, and located in the city of Mobile; and sought to reform and foreclose a mortgage executed to said company, or to its secretary for its benefit, by the partners composing the firm of G. A. Brown & Sons.

Appeal, from the Circuit Court of Madison. Tried before the Hon. Louis Wyeth. This case was before this court at its December term, 1877, and may be found reported in 60 Ala. 568-71. The action was brought by James Hickman, against John D. Weeden, as the executor of the last will and testament of William Acklen, deceased; and was commenced on the 4th April, 1874.

Tried before tbe Hon. Luther R. Smith. This action was brought by Mrs. AnnM. Womack, against William P. Bird, to recover damages for the wrongful taking of “ twelve bales of lint cotton, averaging 500 lbs. per bale, five hundred bushels of corn, two hundred and fifty bushels of cotton-seed, and twenty-two thousand pounds of unginned cotton, or cotton in the seedand was commenced on tbe 1st April, 1869.

Tried before the Hon. H. D. Clayton. This action was brought by Frank P. Glover, against James McGilvray, to recover a mule, together with damages for its detention; and was commenced on the 6th January, 1879.

Tried before tbe Hon. J. Q. Smith, Tbis was a statutory proceeding, by notice and motion, for a summary judgment against John B. King, and tbe sureties on bis official bond as tax-collector of Sanford (now Lamar) county; and was instituted by Willis Brewer, as State Auditor, on tbe ldtb September, 1877.

Tried before the Hon. H. X>. Clayton. This action was brought by Lehman, Durr & Co., of Montgomery, against E. B. Young & Son, of Eufaula, to recover the sum of $2,409.60, for money paid by plaintiffs, on the 1st December, 1875, under the following circumstances: The plaintiffs were and are cotton factors and general commission-merchants, doing business in the city of Montgomery ; and the defendants were and are brokers, doing business in Eufaula.

Tried before tbe Hon. Louis Wyeth. This action was brought by the partners composing the late firm of A. G. Henry & Co., a mercantile partnership doing business at Guntersville, in Marshall county, against the Northern Bank of Alabama, a corporation chartered under the laws of this State prior to 1860, and located at Huntsville, in Madison county; and was commenced on the 10th April, 1868.

Tried before the Hon. John A. Minnis. This action was brought by Homer Blackman, against Lehman, Durr & Co., to recover damages for the alleged conversion by the defendants of one hundred and eighty bonds, issued by the corporate authorities of the city of Troy, in aid of the Mobile and Girard Railroad.

Tried before tbe Hou. H. D. Clayton. This was a petition by F. M. Cordaman, to supersede and quash an execution issued against Mm, M. A. Wood, and David Barr, in favor of J. B. Knox and G. Y. Malone, as surviving partners of the late firm of Knox, Malone & Knox.

Heard before the Hon. A. W. Dillard. The original bill in this case was filed on the 16th May, 1872, by Frank N. Kitchell, as the administrator de bonis non of the estate of James M. Eembert, deceased, against David Brooks Jackson and Lucius Kelly; and sought to set aside, as fraudulent and void, a conveyance executed by said Jackson to said Kelly, a eopy of which was made an exbibit totbe bill, and which was in the following words : “This indenture, made and entered into…

Tried before the Hon. Louis Wyeth. This action was brought by Marie M. A. Calhoun, against Algernon S. Fletcher, to recover damages for a trespass on a house and city lot in Huntsville, alleged to have been committed by the defendant on or about the 1st April, 1872; and was commenced on the 21st of July,, 1875. The defendant pleaded not guilty, and issue was joined on that plea.

Heard before the Hon. Charles Turner. The original bill in this case was filed on the 19th July, 1877, by the appellant, a domestic corporation, located and doing business in Mobile, against the Selma Savings Bank, also a domestic corporation, located and doing business in Selma; and sought to compel the defendant to transfer on its books two certificates of stock, of which the complainant claimed to be the owner and holder for valuable consideration, and which the…

Tried before the Hon. Geo. H. Craig. . . This action was brought by James E. Webb, as tbe administrator of tbe estate of Lucy Sheppard, deceased, against William H. Drake, John R. Webster, and James W. McCrary; was commenced on tbe 27th.

Tried before the Hon. Louis Wyeth. This action was brought by the appellant, “ a body corporate under a charter from the.States of Tennessee, Mississippi, and Alabama,” against Moses Maples and Prank E. Cotten; was commenced on the 5th February, 1872, and was founded on a penal bond executed by the defendants as sureties, together with Samuel E. Kennamore, their principal, since deceased; which bond was dated the 4th May, 1868, and was conditioned for the faithful discharge…

Tried before the Hon. J. McOaleb Wiley. This case was decided at the June term, 1874, but has never been reported. None of the papers have come to the hands of the present reporter, except an official copy of the opinion, which is here published by the order of the court.

Heard before tbe Hon. Charles Turner. Tbe original bill in this case was filed on tbe 29th October, 1870, by tbe Wetumpka Wbarf Company, a… Held: that the bond given to Howell Rose, and the several bonds held by Smith, were valid and binding on the city of Wetumpka, and could not be avoided on the grounds set up in the answer of the corporate authorities; that the deed of trust to •Neal and others was void, for want of authority in the mayor .and aldermen to execute it, and…