Volume 66 — Alabama Reports

Tried before Hon. James Q. Smith. This action was brought by Dillard & Jones, merchants in Montgomery, suing as late partners, against Dixon H. Lewis and his wife; was founded .on an account for goods sold and delivered by plaintiffs to defendants during the years 1872 and 1873, amounting to $513.79 : and was commenced on the 19th April, 1876.

John Moore. The indictment in this case charged the defendant with carrying a pistol concealed about his person, and was found at the May term of tbe court, 1881.

Tried before the Hon. John A. Minnis. This action was brought by J. H. Maury & Co., suing as partners, against Allen, Bethune & Co., warehousemen in the city of Montgomery, to recover damages for the alleged conversion by the defendants of nine(?) bales, of cotton, the property of plaintiffs; and was commenced on the 14th January, 1879.

Heard before the Hon. H. Au.still. The bill in this case was filed on the 3d September, 1878, by Mrs. Yirginia D. Powell, a married woman, who was a daughter of .William T. Judkins,… Held: “that said defendant did not pay to complainant the full value of her distributive share, and that she should not be held to the compromiseand he therefore rendered a decree in her favor, setting aside the assignment. The defendant appeals from this decree, and here assigns it as error.

Heard before tbe Hon. H. Austill. The original bill in this case was filed on tbe 23d September, 1879, by Winnie Cross, the wife of David A. Cross, against John H. Stewart; and sought the specific performance of a contract for the purchase and sale of a small lot or parcel of land near the city of Montgomery, particularly described in a written contract, a copy of wbicb was made an exhibit to tbe bill.

Tried before the Hon. John A. Minnis. Tbe transcript in this case contains only the bill of exceptions reserved by tbe plaintiff on the trial, and the verdict and judgment.

Heard before the Hon. Charles Turner. The original bill in this case was filed on the 14th November, 1859, by Lazarus B. Parker, as the executor of the last will and testament of William Nunn, deceased, against the widow and children of said testator, as heirs and distributees of his estate, and legatees and devisees under his will; and sought the instructions of the court in the administration and settlement of the estate.

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

Erom the Gounty Court of Madison. Tried before the Hon. William Richardson. Held: that when the witness answered that he did not know the general reputation of the defendant in his neighborhood, such answer showed that be was not qualified to testify as to defendant’s character.

<p>Appeal from the Circuit Court of Madison.</p> <p>Tried before the Hon. Louis Wyeth.</p>

Tried before the Hon. Louis Wyeth. This action was brought by tbe appellants,-suing as part-, ners, against Miles C. Wade and’J. Paul Jones, as sureties on an appeal bond, executed by tbem jointly with tbeir principal, Charles T. Jones, since deceased; and was commenced in a justice’s court, on tbe 26th August, 1879.

. The record does not show the name of the chancellor. The bill in this case was filed on the 5th December, 1879, by Darwin & Pulley, merchants and partners in trade, against the personal representative and children of Benjamin L, Harden, deceased, the children being also devisees under the will of his deceased wife, Mrs., Anne E. Harden and Mrs-. Mary B. Miller was also joined as a defendant..

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 15th July, 1875, by Addison G. Smith, as. the executor of the last will and testament of Joseph A. Smith, against the widow and children of Robert Johnson, deceased; and the widow having died pending the suit, it was revived against A. W. Cockrell, as her special administrator ad litem.

Tried before the Hon. W. B. Wood. This action was brought by Stephen Simpson against the Memphis & Charleston Bailroad Company, a domestic corporation, and was commenced on the 22d August, 1877.

<p> Contest as to Bight of Homestead Exemption. </p> <p>1. Notice of corded.— When a claim to a homestead exemption in lands is filed by a debtor’s widow, duly verified by affidavit, and is afterwards contested by a judgment creditor, she is entitled to notice of such contest, asa matter of constitutional right, as well as by force of the statute (Code, § 2836), which applies to all contests as to claims of exemption, whether of real or personal property; and a judgment rendered on such contest, without notice to her, will be reversed at her instance.</p>

Tried before the Hon. Louis Wyeth. This action was brought by Henry Bunn and John P. Timberlake, against Walter Bosser and William Washington ; was commenced on the 15th April, 1875 ; and was founded on an injunction bond executed by the.defendants (jointly with W. A. Austin, since deceased), the condition of' which was in these words : “ Whereas the said Walter Eosser has filed his bill of complaint in the said Cliancery Court of Jackson eountj', and has obtained thereon an…

From the Circuit Court of Madison. Tried before the Hon. William Richardson.

Tried before the Hon. Louis Wyeth. This action was brought by Thomas Graham (and revived in the name of his administrator, on his death pending the suit), against Joshua H. Beadle; and was commenced on the 15th January, 1866.

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 5th April, 1881, by Joshua H. Beadle, against the personal representative of Thomas Graham, deceased; and sought to enjoin the collection of a judgment, which said administrator had obtained against the complainant, in the Circuit Court of Madison, and which was affirmed by this court on appeal, a few days before the bill was filed, as shown by the report of the case, ante, pp. 99-101.

Tried before the Hon. W B. Wood. This action was brought by Thomas and C. B. Wilhite, against Thomas Ryan, to recover certain mill machinery, particularly described, with damages for its detention ; and was commenced on the 16th November, 1874. The cause was tried on issue joined on the plea of nondetinet; and there was a verdict and judgment for the defendant, under the charges of the court.

This was a petition, as the bill of exceptions states, “by W. B. Larkin and.

Heard before the Hon. H. C. Speaks. The bill in this case was filed on the 18th September, 1867, by Joseph C. Baker, as the administrator of the estate of John J. McMahon,deceased, against William S. Bankhead, William A. McDonald, and John A. Gilchrist; and sought to enforce a vendor’s lien on land, for the unpaid purchase-money.

Tried before the Hon. H. C. Sreare. This case originated in a petition, duly verified by affidavit, filed by W. M. Grider, and addressed to the presiding judge of the circuit, asking a mandamus to Hon. John B. Tally, the probate judge of said county, commanding and requiring him to issue a license to the petitioner for retailing spirituous liquors, at Bellefonte in said county, for and daring the year 1881.

This was a petition, as the bill of exceptions states, “ by W. B. Larkin and John Y. Gross, to Complete a minute-entry and decree of an annual settlement of their administration of the estate of Edward H. Dillard, deceased, alleged to have been made on the 15th July, 1861.” The petition was filed on the 21st December, 1876, and was verified by affidavit; and notice having been given to the heirs and distributees of said Dillard’s estate, they appeared, and filed a joint and…

Tried before the Hon. Louis Wyeth. This action was commenced by an attachment, sued out before a justice of the peace, on the 2d January, 1877, by A. J. Hannah, against Johnston & Seats as partners, or against certain crops of corn, fodder, millet, &c., raised on a plantation belonging to them, for wages claimed to be due to the plaintiff as the superintendent of said plantation during the year 1876.

Tried before the Hon. Louis Wyeth. This action was brought by John T. Gilbreath, against Kobert A. Jones and Mrs. Delia Jones, to recover damages for the alleged conversion by them, “ on or about the 20th day of June, 1868, of the following chattels, to-wit: two framed buildings or houses, known as ‘Federal Hospital Buildings,’ and one post and plank fence, the property of plaintiffand was commenced on the 3d March, 1874.” At the March term, 1875, the death of Mrs. Delia…

Application by petition, on behalf of Richard Shandies, for a writ of mandamus, directed to Hon. H. C. Speake, presiding judge of the eighth judicial circuit, on the facts statedin the opinion of the court. cited Code, § 4968; High’s Extra. Leg. Remedies, 4, 16, 17, 32 ; Queen v. B. & G. Railroad Co., 2 Ad. & El. (N. S.) 47 ; Wright v. Johnson, 5 Ark. 687; Ex parte Mahone, 30 Ala. 49; Ex parte Pearson, 59 Ala. 644 ; Kirby v. The State, 62 Ala. 56,

Tried before the Hon. W. B. Wood. This action was brought by Adam C. Shroeder against Colbert county, as a corporation, to recover damages for injuries sustained by his wife and son from the falling of a public bridge; and was commenced on the 19th February, 1878.

Tried before the Hon. W. B. Wood. This action was brought by Benton Sanders, as the administrator of the estate of Robert C. David, deceased, against Mrs. Sarah David, who was the widow of said Robert C., to recover certain bonds particularly described in the affidavit and complaint; and was commenced on the 29th July, 1873.

Heard hefore the Hon. E. H. Foster,' as special chancellor, selected by the parties on account of the incompetency of Chancellor H- C. Speake.

Heard before the Hon. H. C. Speake. The original bill in this case was filed on the 9th November, i875, by John A. Brown, against Lafayette Derrick and Francis D. Stephens; and sought the specific performance of a contract between complainant and said Stephens, for the sale and purchase of a tract of land, or the exchange of one tract for another.

Tried before the Hon. Louis Wyeth. This action was brought by Edmund-A. Wood, against the appellant, a domestic corporation, and was commenced before a justice of the peace, on the 12th July, 1876.

Tried before the Hon. W. B. Wood. This was a proceeding by certiorari and supersedeas, at the instance of the appellants, to quash a summary execution issued against them and their sureties, on a bond which had been by the sheriff returned forfeited as a replevy bond. On the bearing, the court dismissed the certiorari and supersedeas, on motion of the plaintiff in execution; and its judgment is now assigned as error.

Louis Wyeth, the presiding judge of the fifth judicial circuit. This proceeding was commenced by a petition, in the name of the State of Alabama, on the relation of Elijah Bi. Inglis, verified by affidavit, and filed in the office of the clerk of said Circuit Court.

Tried before the Hon. ~W. B. Wood. This case originated in a petition filed on the 5th March, 1879, duly verified by affidavit, by W. P. Jack and John F. Jack, asking a mandamus against Hon. James E. Moore, the probate judge of said county, commanding and requiring him to draw his warrant on the county treasurer, in favor of the petitioners, for the payment of a claim which had been allowed by the Commissioners Court of the county.

Tried before the Hon. Louis Wyeth. This action was brought by William Williams individually, and William Williams and William E. Williams as executors of the last will and testament of James Williams, deceased, against William O. Glover; and was commenced on the 18th September, 1876.

Tried before the Hon. W. B. Wood. This action was brought by Charles W. Baisler, against the corporate authorities of the town of Athens ; and was commenced before a justice of the peace, on the 11th March, 1880.

Tried before the Hon. W. B. Wood. This action was brought by George D. Mingea, as the administrator of the estate of William Talmadge, deceased, against Mrs. Amelia Talmadge, the widow of said decedent, to recover a tract of land particularly described in the complaint, containing about twenty acres, with damages for its detention ; and was commenced on the 20th February, 1879.

Application by petition, verified by affidavit, on tbe part of John W. Jones, for a mandamus to the Circuit Court of Morgan county, Hon. H. C. Speake presiding, to compel that court to proceed witb tbe trial and hearing of a certain cause therein pending, wherein the petitioner is plaintiff, and one Jacob T. Cantwell is defendant.

<p>Action on Promissory Note, by Payees against Makers.</p> <p>1. Rescission of contract, on account of fraud or misrepresentation; waiver. When a promissory note is given in consideration of the transfer of an account against a third person, which is falsely represented to be a statutory lien on his house, for materials furnished and used in its construction, the contract is not void on account of the fraud or misrepresentation, but voidable at the election of the party defrauded, seasonably expressed; and if, on the discovery of the fraud, he does not offer to restore the account, but retains it, and attempts to collect it by suit, he can not set up the fraud to defeat a subsequent action on the note.</p> <p>2. Statutory lien of mechanics and builders. — Under the law approved April 1Í), 1873, amendatory of §$ 3101-04 of the Kevised Code, a statutory lien Was declared in favor of “mechanics and builders,” on buildings erected by them, and on the lot or parcel of land on which such buildings were erected, “for the price agreed upon, or compensation to be paid, and materials used in the construction thereof” (Sess. Acts 1872-3, pp. 117-19); but no Hen was given to a person who only sold materials to be used in the construction of a house, and which were so used.</p> <p>3. When misrepresentation is fraud, or ground of rescission. — A misrepresentation of a material fact or thing directly relating to the subject-matter of a contract, upon which the opposite party reiies, and has a right to rely, inducing him to enter into the contract, is, in law, a fraud, though innocently made, and gives him a right to rescind the contract; but a misrepresentation of a matter of mere judgment, or the expression of an opinion in reference to a matter equally open to the inquiry of both parties, is not a fraud; and when the parties are dealing at arm’s length — when no relation of trust or confidence exists between them — when one has not full knowledge, and does not know the other to be ignorant — a misrepresentation as to a matter of law is not, of itself, a fraud, and does not furnish a ground of avoiding the contract</p>

Aríeal from the Circuit Court of Marshall. Tried before the Hon. John Henderson. This action was brought by William McKee, against William M. Griffin, Wash. W. Griffin, and David O. Jordan, sureties on the official bond of Walter P. McEarlane as register in chancery of the 32d district; and was commenced on the 8th July, 1871.

In the matter of the settlement of the accounts of Alexarn der M. Hannah, deceased, as guardian of Mary S. Hannah, also deceased; the citation being sued out by Peter M. Ehodes, as the administrator of the estate of the ward, against E. T. Simpson, as administrator of the estate of the guardian.

Heard before the Hon. H. C. Speake. The original bill in this case was filed on the 11th February, 1874, by Mrs. Henry E. Crutcher, the wife of Andrew B. Crutcher, suing by her nest friend, against her said husband, who was a son of Reuben W. Crutcher, deceased, and against the other children of said decedent, together with Morris K. Taylor as his administrator, and William Jones; and sought to establish a lien in the complainant’s favor on certain lands, which were in the…

H. C. Speake. The bill in this case was filed on the 27th July, 1878, by William T. Collier and his wife, Margaret F. Collier, against Lewis M. Falk; and sought to enjoin the collection of a judgment which the defendant had obtained against the complainants, in the Circuit Court of said county, on the 26th April, 1876, and to set aside the award on which said judgment was founded.

Tried before the Hon. John Henderson. This action was brought by Thomas O. Barclay, against William G. and James P. Smith, to recover a tract of land particularly described in the complaint, with damages for its detention ; and was commenced on the 13th June, 1877.

Heard before the Hon. H. C. Speake. The bill in this case was filed on the 26th September, 1876, by William C. Clark and others, children and heirs at law of Isaac Clark, deceased, against John Snodgrass, James M. Gullatt, and others; and sought to enforce an alleged trust or equity in a tract of land, of which said Snodgrass was in possession, or to have him declared a trustee of the legal title for the benefit of the complainants, and an account of tbe rents and profits of…

Tried before the Hon. Louis Wyeth. This action was brought by Samuel E. Ryan, against Ezekiel Coucb, late sheriff of said county, and the sureties on his official bond; and was commenced on the 27th April, 1878. The official bond of said Couch, which was set out in the complaint, was dated the 10th November, 1874, and was conditioned as prescribed by the statute (Code, § 163).

Tried before the Hon. Louis Wyeth. This action was brought by George W. Beid, against the appellant, a domestic corporation, to recover damages for killing a cow; aud was commenced before a justice of the peace, on the 5th August, 1878.

Heard before the Hon. N. S. Graham:. The bill in this case was filed on the 18th September, 1879, by Mrs. Mary Bradford, the widow of Daniel… Held: that the widow was entitled to recover, and that the executor was the only party chargeable. — Beeson v. MoNabb, 2 Barr, 422. When a sale has been made under a bill to marshal assets, the widow may come in before a distribution of the fund, and claim the value of her dower out of the proceeds of sale. — Tennant v. Stoney, 1 Rich.

Tried before the Hon. Louis Wyeth. This action was brought by James R. Spragins, against Hampton Connally, to recover a mule, which was described in the original summons as “ a certain Made, one-eyed, horse mule, named Joe ”; and was commenced before a justice of the peace, on the loth November, 1875.

Tried before the Hon. Louis Wyeth. This action was brought by Hereford & Timberlake, suing as partners, against James L. Ridley and Fannie J. Ridley, his wife; and was commenced on the 20th April, 1877.

. In the matter of the estate of Richard W. Anderson, deceased, on the application of Mrs. Isabella M. Bradley for an order requiring the administrator de bonis non, H. L. Olay, to execute a conveyance of certain lands, which had been sold by the administrator in chief, under an order of said court, and of -which the petitioner claimed to have since become the purchaser.

Tried before the Hon. Louis Wyeth. This action was brought by Lucinda Daily against George J. Daily, as the administrator of the estate of George Daily, deceased ; and was commenced before a justice of the peace, on the 16th March, 1878.

Tried before the Hon. Louis Wyeth. This action was brought by Albert E. Murray, against Joseph C. Bradley and bis wife, Mrs. Isabella M. Bradleyand was commenced on the 25th February, 1879. The cause of action was an account for goods sold and delivered during the years 1874 to 1878, inclusive, amounting in the aggregate to $304.70, with several credits indorsed, which left a balance of $206.65, with interest thereon amounting to $256.80.

Tried before the Hon. Louis Wyeth. This action was brought by William P. Newman, against Bichard Lanier, tenant in possession, to recover a certain tract’ of land particularly described in the complaint, with damages during its detention ; and was commenced on the 28th October, 1876.

From the Circuit Court of Colbert. Tried before the Hon. W. B. Wood. The indictment in this case charged that the defendant, William Ray, “ with intent to steal, broke into and entered the store-house of William Warren,” in which dry goods were kept for use, deposit, and sale. Having pleaded not guilty, issue was joined on that plea.

In the matter of the final settlement of the accounts of Newton Radford, deceased, as guardian of William T. Morris, by Joseph A. brown, as administrator of said Radford. William T. Morris, the infant, was the only child of William Morris, whose widow married said Radford when the infant was only two or three years old ; and letters of guardianship were thereupon issued to said Radford on the 21st November, 1857.

Tried before the Hon. Louis Wyeth. This action was brought by John S. Hale, as the administrator de bonis non, with the will annexed of Edward Thompson, deceased, against Andrew C. Prey and W. H. Jervis, to recover a tract of land particularly described in the complaint, with damages during its detention ; and was commenced on the 12th September, 1879. i The defendants pleaded not guilty, and the cause was tried on issue joined on that plea.

Heard before the Hon. H. C. Speake. The bill in this case was filed on the 5th July, 1879, by Henry Baker, against Columbus S. Boone, Thomas Sawyers, John Gamble, and Daniel Sandlin ; and sought the specific performance of a contract, by which the complainant purchased a tract of land from said Boone, a divestiture of the legal title out of the other defendants, who claimed under said Boone, and the recovery of the possession, which had been taken from the complainant by…

Heard before the Hon. H. C. Speake. The bill in this case was filed on the 19th September, 1879, by Lewis B. Thornton, as the administrator de' bonis non of the insolvent estate of Thomas E. Winston, deceased, against James E. Moore; and sought to remove the settlement of said insolvent estate into equity, and to establish an equitable defense against a claim held by said James E. Moore, who had purchased the claim from one A. W. Ligón, as administrator of the estate of…

Tried before the Hon. W. B. Woos. This action was brought by Robert M. Pullen, against Rufus S. Jones, to recover certain personal property, described as “ one steam-engine, boiler and fixtures, one grist-mill and fixtures, one saw-mill and fixtures, one bolting-cloth and. smutter attached to said mill, and one log-wagon,” with damages for its detention ; and was commenced on the 10th October, 1877.

Heard before tbe Hon. H. C. Speake. The bill in this case was filed on the 8th February, 1870, by Whitmell R. Rewsom, as the executor of tbe last will and testament of Whitmell Rutland, deceased, against Lewis B. Tbornton, as the administrator of tbe estate of Eliza W. Johnson, deceased; and sought to enjoin proceedings in the-Probate Court, instituted by said Thornton, as administrator, to recover a pecuniary legacy bequeathed to his intestate by the will of said Rutland.

Heard before the Hon. H. C. Speake. ' The bill in this case was filed on the 9th February, 1878, by Leroy W. McCravey, as the… Held: the statute declares, “ vests in the husband as trustee,” and he “ has the right kr manage and control the same and the further provision which expressly charges it with debts contracted for necessaries, and provides a special remedy for the enforcement of such debts, does not deprive the property of the characteristics of a trust…

Heard before the Hon. H. O. Speake. The original bill in this ease was filed on the 15th May, 1876, by the administrator and heirs at law of John W. Parks, deceased, against William D. Parks individually, and as administrator of the estate of Hugh L. Parks, deceased, and against Sallie Parks, an infant, as sole heir and distributee of the estate of said Hugh L. Parks ; and sought to have a certain deed, absolute on its face, declared a mortgage, and for an account and…

Tried before the Hon. Louis Wyeth. This action was brought by Samuel. F. Ryan, against Columbus Kilpatrick and Arthur C. Beard, to recover the possession of a tract of land, which was described in the amended complaint as the “ north-west part (B) of fractional section seventeen (17), township seven (7), range four (4), east, containing seventy-nine (79) acres, more or less,” with damages during its detention; and was commenced on the 18th December, 1876.

Heard before the Hon. H. C. Speake. The bill in this case was filed on the 30th April, 1870, by Milton C. Baldridge, as trustee for Mrs. Eliza M. Neely and her children, against David J. Cannon, his predecessor in the trust, Jonathan M. Cunningham, and Mrs. Sarah A. E. Williams.

Heard before the Hon. H. C. Speake. The bill in this case was filed on the 29th March, 1876, by John B. Harrison, against John S. Jenkins and others, children and heirs at law of Thomas B. Jenkins, deceased; and sought the specific performance of a contract entered into by and between complainant and said decedent, or other relief appropriate to the facts staged, as hereinafter more particularly shown.

Heard before tbe Hon. H. O. Speake. The original bill in this ease was filed on the 28th Februars, 1874, by the assignee in bankruptcy of Zebulon P. Davis (the present appellant being the successor of tbe original assignee),, against the said bankrupt, and against his wife (Mrs. Williametta Davis), bis son (George L. Davis), and several other persons (alleged debtors of said bankrupt); and sought to set aside, on the ground of fraud, certain transactions between said…

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 11th May, 1874, by Joseph W. Jenkins, as a creditor of William Lockard, deceased, against D. L. Kirkland, as administrator of the insolvent estate of said Lockard, and against Dora E. Lockard and others, children and voluntary grantees of said decedent; and sought to set aside, on the ground of fraud; certain conveyances of property made by said decedent to said several grantees, and to subject the…

Tried before the Hon. Luther E. Smith. This was a statutory proceeding by notice and motion, at the suit of Clifford P. Cohen, for a summary judgment against Andrew Henry, as county treasurer of said county, and the sureties on bis official bond, on account of his refusal to pay a warrant held by the plaintiff, in the order of its registration after presentment.

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 21st September, 1870, by John T. Lang and Robert Lang, as joint executors of the last will and testament of their deceased father, William Lang, against the widow, children and grandchildren of said testator, who were legatees and devisees under his will; and asked the instructions of the court in the discharge of their official duties in the management of the estate, alleged to be complicated by the…

Tried before the Hon. Luther R. Smith. This action was brought by Smith Brothers, suing as partners, against William H. Evington, to recover damages for the alleged conversion of five bales of cotton ; and was commenced on the 3d April, 1879. The cause was tried on issue joined, but the record does not show what pleas were filed.

H. T. Toulmin. This action was brought by E. S. Perryman & Co., wholesale merchants in the city of Mobile, suing as partners, against Charles C. McCall, as guarantor for one j. R. Burns, to recover a balance of $565.95 due from said Burns for goods sold and delivered to bim by plaintiffs, at different times, during the year 1880, on the faith, as they alleged, of defendant’s written guaranty.

Tried before the Hon. Luther E. Smith. This action was brought by Ascher Morris, against Lienkauf & Strauss as partners, Morris Mayer, and Leonard Newhouse, and was commenced on the 11th April, 1879.

Tried before the Hon. Luther R. Smith. This action was brought by David H. Trott, against David L. Kirkland, to recover an undivided half interest in certain town lots in Livingston, with damages during their detention ; and was commenced on the Bd July, 1875. The defendant pleaded, “ that at commencement of said suit, and for a long time prior thereto, he was not in possession of the premises sued for ;” and issue was joined on that plea.

<p> Action by County, on Official Bond of Tax-Collector. </p> <p>1. Settlement of tax-collector’s accounts with Commissioners Court; conclusiveness of. — A settlement of the accounts of a tax-collector with the Commissioners Court of the county, and a discharge or receipt in accordance with the settlement, are prima facie correct, and impose the onus of proof on the party who afterwards disputes its correctness ; but it is not conclusive.</p> <p>3. Specific objection to evidence. — An objection to evidence, on a single specified ground, is a waiver of all other grounds of objection.'</p> <p>3. Exception to charges given. — An exception in these words, “To the 1st, 2d and 3d charges, fabove given by the court, the defendants then and there ex? cepted,” is a general exception to all the charges, and not a specific exception to each charge separately ; and if any one of the charges is correct, or is too favorable to the party excepting, the exception can not prevail.</p> <p>4. Exception to refusal of charges asked. — An exception in these words, “Defendants asked the following charges in writing, which were refused, and defendants then and there excepted,” is a general exception .to the refusal of all the charges collectively, and not to the refusal of each charge separately ; and if any one of the charges asserts an incorrect legal principle, the exception can not avail.</p>

Tried before the Hon. Luther B. Smith. This action was brought by Thomas T. Tyree, against William F. Parham, as the executor of the last will and testament of Francis Parham, deceased, and was commenced on the 10th September, 1875.

<p> Action on Promissory Notes, by Assignee against Mahers. </p> <p>1. Discontinuance as to one of several defendants. — In an action ex contractu against two or more defendants, one of whom pleads non est factum, or other matter of discharge personal to himself, the plaintiff may enter a discontinuance as to him, without affecting his right to proceed to judgment against the others.</p> <p>2. Promissory note; presentment or demand of payment.— When a negotiable promissory note is made payable at a particular place, the primary duty of the maker is to make payment at the time and place appointed, though the note may have been transferred or assigned by the payee; and the failure or laches of the holder in making presentment, or demanding payment, does not relieve the maker from liability, unless continued until a recovery is barred by the statute of limitations.</p> <p>3. Accommodation paper ; notice of non-payment to maker. — When a negotiable promissory note is made for the accommodation of the payee, without any consideration moving from him to the maker, if that fact casts on the holder the duty of giving notice of non-payment to the maker, it must be shown that he knew the lact at the time of the maturity of the note.</p> <p>i. Presentment for payment; token necessary, and effect of failure.— When a negotiable promissory note is made payable at a particular place, presentment at that place, on the day of maturity, is not necessary to fix the liability of the maker; but, if he was there in readiness to pay, or had deposited funds there to meet it, and loss ensued to him from the failure to present it, this might be matter of defense.</p> <p>5. Liability of maker of accommodation paper. — When a negotiable note is made for the accommodation of the payee, and is left with him, to be used in the general transaction of his business, it has no vitality while it remains in his possession; but, when negotiated by him, it stands on an equality with other commercial paper, and the maker is bound primarily and unconditionally for its payment.</p> <p>O. Same. — If such note was not made for any special purpose, and there was uo restriction on its use by the payee, the title and rights of the holder, as against the maker, would not be affected by the fact that he acquired it from the payee after maturity, and with knowledge of the relation existing between the payee and the maker.</p> <p>7. Negotiable paper ; transfer as collateral security. — The rule has been long settled here — “so long that it can not be departed from without disturbing transactions it may have influenced” — that a bolder of negotiable paper as collateral security for a pre-existing debt is not a bona fide holder for value, nor entitled to protection against equities and defenses existing between prior parties, of which he had no notice.</p> <p>8. Same; rights of holder. — The holder of negotiable paper, acquiring it before maturity, in the ordinary course of business, is presumed to have acquired it for a valuable consideration; but, when illegality, want or failure of consideration, or bad faith in giving it circulation is shown, the holder must prove that he acquired it before maturity, and for a valuable consideration — that is, by the payment of money, or other thing of value, or by the postponement or surrender of some legal right, or by changing his position income respect for the worse.</p> <p>9. Charge to jury on part of evidence. — When the evidence presents the case in two different aspects, the court may, without error or impropriety, instruct the jury as to the law applicable to one of those aspects, or under odg hypothesis, without noticing the other; and if injury is apprehended from such instructions, the party may guard against it by requesting additional or explanatory instructions.</p>

Tried before the Hon. Luther B. Smith. This aetiou .was brought by Hobart C. Lugger and Mrs. Alice Y. Sprague, against Henry A. Tayloe, to recover tbe possession of a tract of land particularly… Held: at its December term, 1877, that said probate decree was void, because rendered without notice to the administratrix, and that the bill was without equity, since the complainants had á legal title, and an adequate remedy at law. — Dagger v. Tayloe, 60 Ala. 504-19.

Tried before the Hon. Luther E. Smith. This case originated in a petition filed by the appellee, Gilbert L. Siddons, praying for a writ of prohibition from the Circuit Court, to quash and prevent proceedings under an execution, issued by a justice of the peace, in favor of W. T. Atkins, and against said Siddons.

In the matter of the estate of Thomas Drew, deceased, on the application of William Edmonds, the administrator, for an order to sell his interest in certain lands for the payment of his debts, on the ground that the personal assets were insufficient for that purpose.

Tried before the Hon. Wit. S. Mudd. The prisoner in this case, Ben. Perkins, a freedman, was indicted, jointly with Csesar Clanton, another freedman, for the murder of Gilbert Roberts.

From the Circuit Court of Macon. Tried before the Hon. Jambs É. Cobb. The prisoner in this case, Sol. Leonard, was indicted for the murder of Charles Taylor; was duly arraigned, and pleaded not guilty to the indictment; was tried on issue joined on that plea, found guilty of murder in the first degree, and sentenced to imprisonment in the penitentiary for life.

From the Circuit Court of Macon. Tried before the Hon. Jambs E. Cobb. The prosecution in this case was commenced on the 26th June, 1880, by an affidavit made and subscribed by Nat.

Eeom the Circuit Court of- Macon. Tried before the Hon. James E. Cobb.

'Appeal from the Circuit Court of Chambers. Tried before the Hon. James E. Cobb. This action was brought by the appellants, a mercantile partnership, suing as partners and individually, against the partners composing the firm of Gamble & Son, and was commenced by an original attachment, sued out before the clerk of said court, on the 19th December, 1878.

Tried before the Hon. James E. Cobb. This action was brought by J. C. Huss against the appellees, two corporations chartered by the State of Georgia, and alleged to be operating the “ Western Bailroad of Alabama,” to recover damages for injuries to a mare, which was killed by the negligence of the defendant’s servants; and was commenced, according to the date of the summons, on the 9th April, 1878.

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 17th April, 1877, by the appellants, a mercantile partnership doing business in Columbus, Georgia, against William Dawson and his wife, Barbara Dawson; and sought to foreclose a mortgage on a tract of land, with other property, executed by the defendants to the complainants.

Tried before the Hon. James E. Cobb. This action was brought by Lee county, suing as a corporation, against John F. Lewis and the sureties on his official bond as county treasurer of said county; and was commenced on the 6th September, 1875.

Tried before the Hon. James E. Cobb. This action was brought by A. J. Smith against E. M. Dunbar, and was commenced before a justice of the peace, on the 16th January, 1878.

<p> Indictment for Illegal Sale of Spirituous Liquors. </p> <p>■1. Misnomer; idem sonans. — The doctrine of idem sonans applies to the two names Louis and Lewis, and the difference between them is not sufficient to support a plea in abatement for a misnomer.</p> <p>2. Selling spirituous liquors in violation of special laic ; sufficiency of indictment. Where a special local statute prohibited the sale of spirituous liquors within 'three miles of “a Methodist church in Macon county, known by the name of White church,” and the indictment charged that the defendant sold such liquors within three miles of “White church in Macon county, in violation of a special act,” which is set out at length; held, that the description of the church was sufficient to identify it, and to show a violation of the statute.</p> <p>3. iams. — An averment, in such indictment, that the defendant “did sell or give away spirituous, vinous or malt liqnors, in violation,” &c., is sufficient, without any averment as to the quantity so sold or given away.</p> <p>i. Same; description of statute. — In an indictment for the violation of a special statute, it may be described as “an act of the legislature of Alabama,” although the “General Assembly” is the technical designation of the legislative body.</p> <p>5. _ Tide and subject-matter of special law, under constitutional provisions.- — A special statute, which prohibits the sale of spirituous liquors within a specified distance from two churches, situated in different counties, is_ not violative of the constitutional provision (Art. 4, § 2) which declares, “Each law shall contain but one subject.’’</p>

This was an application by Peter Mitchell, guardian of Martha E. Dabney and others, minors, for tbe substitution of an alleged lost decree, said to bave been rendered by said court, on the 23d February, 1867, on final settlement of Ms accounts and vouchers as such guardian. Tbe petition was filed on the 1st May; 1877, and set out wbat purported to be a copy, and was alleged to be a substantial copy, of the decree said to have been lost or destroyed.

Tried, before tbe Hon. James Q. Smith. This action was brought by John A. Logan, against John Edwards; was commenced on the 2d January, 1879, and was founded on the defendant’s promissory note for $125, dated the 4th September, 1877, and payable on or before the 1st March, 1878, with interest from date, to “L. E. Parsons, jr., or bearer, for value réceived of him in professional services rendered.” The note was attested by said Logan, the plaintiff, and the complaint alleged…

The record does not show the name of the presiding judge. This action was brought by T. F. McBurney, against Isaac Heyman, A. H. Chilton, P. W. Lanier,-Neri Tucker, and J. C. Meadors, and was commenced before a justice of the peace, on the 19th July, 1876. The justice rendered judgment for the defendants, and the plaintiff removed the cause, by appeal, into the Circuit Court. ‘The record does not show that any complaint was there filed, or statement of the cause of action.

Tried before the Hod. James E. Cobb. This was a statutory claim suit, between R. D. Smith, plaintiff in attachment, aud James H. Wright, as claimant. The attachment was sued out against the estate of John P. Wright, who was the father of the claimant, aud was levied, on the 19th December, 1877, “ on one two-horse wagon aud harness, one black horse,” and other personal property, found in the possession of said John P. Wright.

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 22d January, 1878, by John J. Wynn, against George W. Rosette and Charles B. Taliaferro ; and sought to enforce an alleged vendor’s lien on land for the unpaid purchase-money.

Tried before the Hon. James T. Norman, an attorney of the court, selected by the parties on account of the disqualification of the presiding judge, who had been of counsel in the case. This action was brought by W. E. Poster, as the administrator de bonis non of the estate of J. C. Henderson, deceased, against J. A. Grimmet, T. S. Grimmet, H. O. Grimmet, G. W. Campbell, and T. B. Dryer ; and was commenced on the 6th August, 1879.

Heard before the Hou. Charles Turner. Tbe bill in this case was filed on tbe 29tb March, 1878, by David E. Avant, against the administrator and heirs at law of Jephtha Yarborough, deceased; and sought to establish and enforce a partition of a tract of land, as agreed on by parol between complainant and said Yarborough, in his lifetime, and to enjoin a judgment at law, which the said Yarborough had afterwards recovered for a part of the lands which Ihe complainant held under…

Heard before the Hon. N. S. Graham. The bill in this ease was filed on the 27th August, 1879, by William L. Tillman, against Shird Wilkerson and his wife ; and sought to foreclose a mortgage on a tract of land, with other property, executed to the complainant by the said defendants, a copy of which was made an exhibit to the bill.

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 18th June, 1878, by Jacob Broda, against Moses Greenwald; and sought a restatement of the accounts of a late partnership existing between the parties, and an injunction of a judgment at law which the defendant had obtained against the complainant, for a balance ascertained to be due on a settlement of their accounts as stated by one Gassenheimer.

Tried before the Hon. John Henderson. H. C. Tompkins, Attorney-General, for the appellant. — Sec-4 tions 3059-60 of the Bevised Code, under which this proceeding was instituted, was, by some oversight, omitted from the Code of 1876; and the only question presented by the record is, whether they were thereby repealed. The Code of 1876 was presented to the General Assembly at the session of 1876-7, and was adopted by the act- approved February 2d, 1877. — See Code, pi 3.

Tried before' the Hon. James E. Cobb. This action was brought by Mrs. B. D. Smith, against John P. Wright; was founded on the defendant’s promissory note for $150, dated the 5th January, 1877, and payable ten months after date; and was commenced by original attachment, issued on the 15th December, 1877, by the clerk of the Circuit Court of said county of Macon, on an affidavit made and subscribed by the plaintiff, on the 14th December, 1877, before the clerk of the Circuit…

<p> jBill in Equity for Cancellation of Mortgage; Cross-Bill for Foreclosure. </p> <p>1. Equitable estate of wife ; how created. — The mere interposition of a trustee, in a conveyance for the benefit of a married woman, does not create in her an equitable estate, as distinguished from one that is statutory, unless there are words showing an intention to exclude the marital rights of the husband.</p> <p>• 2. Mortgage of wife’s statutory estate. — Under repeated decisions of this court, a mortgage executed by husband and wife, on lands belonging to the wife’s statutory estate, as security for the debt of her husband, or a third person, is void.</p> <p>3. Parties to bill for foreclosure. — When a mortgage, and the note secured by it, are delivered up and cancelled, and a new note and mortgage are executed in their stead, but to a different person, the first mortgagee is not a necessary party to a bill to foreclose the second mortgage.</p>

Tried before the Hon. James E. Cobb. This action was brought by John L. Bobinson, against Mrs. Drusilla A. Bullock’; was commenced on the 23d October, 1868, and sought to recover damages for the defendant’s alleged breach of a written contract, which was in the following words: “Memorandum of agreement, made and entered into this, the 13th day of November, A. H. 1865, between John L. Bobinson of the one part, and Mrs. H. A. Bullock of the other part, w.itnesseth, that for…

This was a motion to quash an execution, which had been issued on a decree rendered by said Probate Court, the register in chancery presiding, pro hac vice, in the place of the probate judge, in favor of W. E. Foster, as administrator de bonis non of the estate of John C. Henderson, deceased, against Lemuel Henderson, the administrator in chief, on final settlement of his accounts. The decree was rendered on the 18th June, 1877.

Heard before tbe Hon. N. S. Graham. The bill in this case was filed on the 12th February, 1877, by William Blackman, against Mrs. Martha B. Houston, the widow of Edwin A. Houston, deceased, and Jacob… Held: and accepted a new title-bond from her, conditioned to make title on the payment of a new note which he gave her for the estimated balance due on his former notes, which were surrendered and cancelled.

Heard, before the Hon. N. S. Graham. The original bill in this case was filed on the 1st May, 1877, by Fletcher M. Jackson, against the widow and children of his deceased guardian, Samuel W. Harris; and sought to subject a tract of land particularly described, and alleged to have been conveyed by said Harris, by deed of gift, dated the 22d February, 1875, to his wife and children, to the satisfaction of a decree for $2,258.79, rendered against said Harris, on.final…

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

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

Heard before the Hon. N. S. Graham. The original bill in this case was filed on the 15th January, 1878, by • Joseph B. McDonald and George W. Gunn, against Thomas J. Worrell and his wife, Mrs. Cynthia A. Worrell; and sought the foreclosure of a mortgage on a tract of land, executed by the defendants to the complainants jointly, a copy of which was made an exhibit to the bill.

Tried before the Hon. James E. Cobb. This action was brought by Thomas E. Davis, against the “Western Railroad Company,” and was commenced before a justice of the peace, on the 20fcb November, 1876.

Tried before the Hon. James E. Cobb. This action was brought by tbe “ Pacific Guauo Company,” a corporation chartered by tbe Commonwealth of Massachusetts, against James M. Mullen ; was commenced on tbe 15th April, 1876 ; and was founded on the defendant’s promissory note for $363, dated the 17th April, 1875, and payable on the 1st November, 1875, to W. H. Young, of which the plaintiff claimed to be the owner and holder.

Heard before the Hon. N. S. Graham. Tbe original bill in tbis case was filed on tbe 17th Eebru-1 ary, 1877, by John H. Oarriger, a citizen of Tennessee, against Nathan Crown; and sought to establish and enforce a vendor’s lien on land for the unpaid purchase-money, as evidenced by the defendant’s two promissory notes, which were made exhibits to the bill ; each of said notes being for $500, dated the 10th November, 1874, and payable on the 25th December, 1875, and 1876,…

Tried before the Hon. John Henderson. This was a summary proceeding, by notice and motion, in the name of Chilton county, against James A. Dudley and the sureties on his official bond as tax-collector of said county, for his “failure to pay into the county treasury, within the time prescribed by law, the sum of, to-wit, $1,099.50, being part of the amount of the county tax for said county collected by him while tax-collector as aforesaid, and due and payable by him, as such…

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 80th June, 1875, by Jesse L. Adams, against Zachariah Eogers and his wife, Mrs; Jane A. Eogers ; and sought to foreclose a mortgage on a house and lot in Tuskegee.