Volume 67 — Alabama Reports

Action on Promissory Note — Plea non est factum. Appeal from the Circuit Court of Mobile County. Tried before Hon. H. T. Toulmin. Held: and that the plaintiff had no knowledge at the time that said note was made without the consent of Murphy, that then the plaintiff would be a bona fide purchaser. “5.

Action on the case to Recover Damages for Personal Injury. Appeal from Mobile Circuit Court. Tried before Hon. H. T. Toulmin. This action was brought by William Harris, by Drs. Sherrard and Heustis as next friends, against the Bay Shore Railroad Company, to recover damages for a personal injury caused by the alleged negligence of the defendant.

Rill in Equity to Enforce Vendor’s lien on lands. Appeal from Mobile Chancery Court. Heard before Hou. H. Austill. This was á bill filed by Russell and wife, against John Craft and Hugh Elliott, and sought to enforce a vendor’s lieu on a lot of land in the city of Mobile.

Action by Employee against Bailway Company for Damages for Personal injury, Appeal from tbe City Court of Mobile. Tried before Hon. O’. J. Semmes.

Action on Charter Party. Appeal from the Circuit Court of Mobile. Tried before Hon. H. T. Toulmin. Black, who was tbe owner of tbe steamboat “ Peerless,” chartered her to Finnegan. Tbe material clauses of tbe charter party are quoted in tbe opinion.

Bill in Equity by Telegraph Qompany to Enjoin another Telegraph Company from impeding or 'obstructing the Construction of its Lines. Appeal from Mobile Chancery Court. Heard before Hon. H. Austill. This was a bill filed by the American Union Telegraph Company against the Western Union Telegraph Company.

Bill in Equity, to- Cancel Conveyance as Mortgage of Wifers Statutory Estate. Appeal from the Chancery Court of Mobile-. Heard before the Hon. H. Austill.

Tried before Hon. O. J. Semmes. Charles Hild was indicted for burglary in breaking and entering the dwelling house of Y. S. Davis, with intent to steal. Hild was a farm laborer employed by Davis, and lived in the same house with him. Davis went to Mobile, leaving Hild in charge of the premises, and on his return found that his room had been entered, and various articles of clothing had been stolen. The defendant was absent, but confessed that he had taken the articles.

Petition by Administrator to Sell Lands to Pay Debts, Appeal from the Probate Court of Mobile county. Heard before Hon. Price Williams. Appellee Graves filed his petition in the Probate Court of Mobile, praying for letters of administration on the estate of Clara E. Lott, who was the wife of the appellant Lott.

. Tried before Hon. H. T. Toulmin. No statement of facts is necessary. — As this cause was submitted to the court without the intervention of a jury this court will not revise the action of the Circuit Court in its decision of the facts. — 18 Ala. 566.

Bill in Equity to Declare Transfer of Stock void, and for an Account. Appeal from Mobile Chancery Court. Heard' before Hon. H. Austill. This bill was filed on the 21§£-'dayof November, 18777 against the Mobile Fire Deparenent Insurance Company and Owen McMahon, by E. MNJnderhill, appellant, as receiver of the assets of the estate^of Edward McDermott, deceased.

Bill in Equity by Cestui que trust to compel trustee to account Appeal from tbe Chancery Court of Mobile. Heard before Hon. H. Austill. This was a bill filed by John D. Haynie, as administrator of the estate of Mrs. Winifred Haynie, against her surviving husband, Isaac Donovan. It is averred in the bill, that before the marriage of Mr. and Airs. Donovan, they entered into a-marriage contract, a copy of which is attached as an exhibit to the bill.

Indictment for Murder. Appeal from Crenshaw Circuit Court. Tried before Hon. J. K. Henry. At the Spring term, 1879, of the Circuit Court of Crenshaw county, James Thomas Marler, and Andrew Napoleon (alias “Bose”) Bedman, were indicted for tbe murder of William B. Colquitt.

Indictment for Murder. Appe\l from Talladega Circuit Court. Tried before Hon. L. E. Box. Thomas Ingram, the appellant, was- indicted at the spring term, 1877, of the Circuit Court of Talladega county, for the murder of Jack Coleman.

Indictment for Peddling Sewing ''Machines without License. Whit of Error to Jefferson Circuit Court. Tried before 3Ion. W. S. Mudd. Appellant was indicted at the fall term, 1879,'of ilie Circuit Court of Jefferson county.

Indictment against Saloon Keeper for Permitting Minor to Play on Billiard Table Connected with Saloon. Appeal from Pike Circuit Court. Tried before Hou. H. D. Clayton.

<p> Proceedings for Bastardy; Plea, Statute of Limitations of One Year-. </p> <p>Appeal from Dallas Circuit Court.</p> <p>Tried before Hon. G. H. Craig.</p> <p>The facts appear sufficiently from tbe opinion.</p>

Indictment for Bigamy, or Polygamy. Appeal from Wilcox Circuit Court. Tried before Hon. John Moore. Serena Jones was indicted for bigamy, or “polygamy,” at tbe Fall term, 1880, of the Circuit Court of Wilcox county.

Indictment for Carrying Concealed Weapons. Appeal from Etowah Circuit Court. Tried before Hon. L. E. Box. Henry Street was indicted, at the fall term, 1879, of the Circuit Court of Etowah county, for “ carrying a pistol concealed about bis person.” One West testified, on tbe trial, that he and three or four neighbors went to defendant’s house, and started to go thence to the river .to bathe.

<p> Indictment for-an Affray. </p> <p>Appeal from Cherokee Circuit Court.</p> <p>Tried before Hon. L. F. Box.</p> <p>The facts need not be stated.</p>

Action for Goods, Wares and Merchandise sold and Delivered. Appeal from Mobile Circuit Court. Tried before Hon. H. T. Toulmin. The facts are sufficiently stated in tbe opinion of the court.

Statutory Heal Action. Appeal from Barbour Circuit Court. Tried before Hon. H. D. Clayton. This was a statutory real action, brought October 14,1878, by Nancy P. Colbert and Mary C. Allen, against Warren J. Clark. The plaintiffs claimed as the heirs at law of Avery Nolen, who died intestate in 1875. The substance of the evidence is set out in .the opinion of the court.

Trover. Appeal from Talladega Circuit Court. Tried before Hon. John Henderson. On December 7th, 1874, appellee P. A. Stamps bought a tract of land lying in Talladega county, at sheriff’s sale, and soon afterwards went into possession of it. At the time of the sale there was a lot of bricks on the land, and also five thousand rails, which were the property of L. Dickinson, who owned the land until it was sold by the sheriff.

Statutory Beal Action. Appeal from Randolph Circuit Court. Tried before Hon. John Henderson. This was a statutory real action brought on January 28, 1876, by H. R. Jackson and Mary A. Jackson, as administrator and administratrix of the estate of Win. Jackson, deceased, against John R. Scott and J. Hawkins. On the trial, the plaintiffs put in evidence a mortgage made March 18, 1871, by Benj. East and wife, conveying certain lands to Wm.

Bill in Equity to enjoin action of Forcible Entry and Unlawful Detainer, and to remove Cloud from Title. Appeal from DeKalb Chancery Court. ■ Heard before Hon. H. O. Speake.

Indictment for Unlawfully and Wantonly Killing an Animal. Appeal from Bullock Circuit Court Tried before Hon. H. D. Clayton. Platt Thompson occupied lands on which there was a corn crop growing in a field through which ran a road. The road began on, and ran through, the lands of Joseph Howard, w'ho resided on and cultivated land adjoining Thompson’s, and entered the premises of the latter through a gate, which formed part of the partition fenee between the two neighbors.

<p>Detinue for a “ Track Scale ” by Vendor after conditional sale.</p> <p>Appeal from Shelby Circuit Court.</p> <p>Tried before Hon. W. L. Whitlock.</p> <p>This was au action of detinue brought by Fairbanks, Morse & Co., against the Eureka Company, to recover a thirty ton “ Track Scale.” On the trial, it was shown that one C. O, Godfrey sent the following order to the plaintiffs on the day of its date, viz: “Town of Helena, County of Shelby,'State of Alabama. Messrs. Fairbanks, Morse & Co. — Please send me from Nashville one thirty ton track scale, thirty-three feet platform, marked to O. Ó. Godfrey, Helena, for which I agree to pay seven hundred and fifty dollars, as follows : One-third cash when built, balance in four and six months : and it is agreed, that you do not part with nor relinquish your claim on or title to said scale until it is fully paid for ; and in default of the payment for the scales as agreed, you or your agent may, without process of law, take possession of and remove said scale, and collect reasonable charges for the use of the same. Scale warranted durable and accurate. To be built by Fairbanks, Morse & Co. about as soon as-ready.- If the purchaser-delays having the scale built thirty days after the time set for delivering, then this order shall become due and payable the same as if the scale had been built at the time stated. O. O. Godfrey.”</p> <p>On December 17th, 1874, this contract was filed in the office of the judge of probate of Shelby county for record, and was duly recorded there. The scale was sent by plaintiffs toGodfrey, and was received and used by him for weighing coal. One-third of the purchase-money — $250—was paid in cash. At the time of the trial, the scale was in possession of the Eureka Company, and was worth about $500. The evidence for the defendant showed that on April 28th, 1875, said Godfrey, who had possession of the scale and was using it, sold it to the defendants for value, and conveyed it to them in writing; that defendant was a bona fide purchaser of the scale and had no actual notice of the written contract between plaintiffs and Godfrey, which is set out above, nor of any claim to the scale by any person other than said Godfrey that defendant received possession of the scale on April 28th, 1876, and had used it since that time ; that it had no notice that the paper set out above had been recorded or had been filed for record. The court charged the jury that the mere fact that the contract between Godfrey and the plaintiffs was recorded in the office of the judge of probate of Shelby county would not be notice to the defendant of plaintiff’s claim to the scale. The court further charged the jury, “ that if the jury believe, from the evidence, that the only notice which defendant had of the claim, title or lien of the plaintiffs to the scale when defendant bought of Godfrey, was the mere fact that said writing was recorded as aforesaid, a-nd that the defendant was at the time of the purchase without any actual notice of plaintiffs claim or title to the scale, and that defendant purchased said scale in good faith from said Godfrey, and paid him at the time an adequate and valuable consideration therefor, while said Godfrey had the actual use and 'possession of said scale; and if defendant has shown these facts to the satisfaction of the jury, they will find the issue in favor of the defendant; “ and if the jury are satisfied that the foregoing is all of the evidence, and that all the facts as stated above are true, in that event, they will find for the defendant.” The plaintiffs excepted to these charges. There was a verdict for the defendants, and the plaintiffs appealed to this court, and assign the charges of the court as error.</p>

Action against Railroad Company to Recover Damages for Personal Injury, Appeal from Jefferson Circuit Court. Tried before Hon. W. S. Mudd. On November 1st, 1878, Perry Gothard, driving his wagon along the most frequented street in the city of Birmingham, Ala., where the municipal ordinances prohibit tbe running of trains at a rate of speed greater than six miles per hour, came to a place where four railroad tracks which ran parallel to each other crossed tbe highway.

Statutory Real Action. Appeal from Calhoun Circuit Court. Tried before Hon. W. L. Whitlock. This was a statutory real action in the nature of ejectment, brought by C. W. Brewton as administrator de bonis non of the estate of Mrs. E. A. Browning, deceased, against'Mrs. Susan C. Watson, Robert Adams, and Clark A. Ledbetter, to recover a tract of land in Calhoun county, Alabama.

Bill in Equity to Establish and Enforce, Implied Trust. Appeal from Mobile Chancery Court. Heard before Hon. John A. Foster. ' This was a bill filed by Louisa Yniestra, on' January 15, 1880, against Robert Tarleton and others, who were the heirs and devisees of Geo. W. Tarleton, deceased.

Detinue to recover Steam Mill and Machinery by Material-man Appeal from the Circuit Court of Mobile. Tried before Hon. H. T. Toulmin. This was an action of detinue brought by Porter & Co. against Miles, to recover a steam saw mill and machinery. The defendant pleaded “ non detinet.” On the trial, it appeared that Bickford erected a steam saw mill at the mouth of “ Dog river,”' near Mobile, and bought various articles of Porter & Co. to be used about the mill.

Action on Common Counts, with a Count on a Special Contract. Appeal from Mobile Circuit Court. Tried before Hon. H. T. Toulmin. This was an action brought by John Egger against the Mobile Life Insurance Company. The complaint contained the common counts, and a special count on a contract between plaintiff and defendant, the terms of which are given below. The defendant pleaded “in short by consent” — 1. The general issue; 2. Payment; 3. Set-off.

Detinue for a Setving Machine. Appeal from the Circuit Court of Calhoun. Tried before Hon. W. L. Whitlock. On January 22d, 1873, Sumner, the appellant, delivered a sewing machine to J. W, Smith, taking from him four promissory notes, payable at four, eight, twelve and eighteen months after date.

Bill in Equity to Charge Debts of Testator on Property De~ vised to his Wife. Appeal from Mobile Chancery Court. Heard before tbe Hon. H. Austill. Reuben Whatley, being indebted to Edward A. Lewis in tbe sum of $606, executed his promissory note for that amount on tbe 12th of August,. 1865. Tbe note was payable to Lewis, and became due twelve months after date.

Bill by Executors for Construction of Will and to charge Testators' Debts on Beal Estate Devised. Appeal from the Chancery Court of Mobile. Heard before Hon. H. Austill. Tbis was a bill filed by appellants as executors of the will of D. O. Grady, deceased. The provisions of the will, so far as / it is necessary to set them out, are as follows, viz “ 3.

Action on Judgment recovered in suit against the Mobile dc Montgomery Railroad Company. Appeal from the City Court of Mobile, Tried before Hon. O. J. Semmes. This was an action brought by J. K. Yeates against the Mobile and Montgomery Railway Company.

Bid in Equity to Compel Transfer of Stock, and for an Accounts Appeal from Mobile Chancery Court. Heard before-Hon. H. Austill. The Tuscaloosa Scientific and Art Association, a corporation under the laws of Alabama, became indebted to Walsh, Smith & Co., for $53,992.30.

Bill in Equity for Settlement and Division of Decedent's Estate. Appeal from the Chancery Court of Mobile. Heard before Hon. H. Austill. H. H. Slatter died intestate, in Mobile, in September, 1853, leaving four heirs at law, viz : Shadrach and Hope H. Slatter, Emma C. Kelly, (the appellee), and Ann P. Holly; Mrs. Holly died afterwards leaving two children, Anna G. Turner andjHenry Holly, who are the appellants in this case.

Action for Money had and Deceived. Appeal from Mobile Circuit Court. Tried before Hon. H. T. Toulmin. John Martin, a citizen of Louisiana, and domiciled there, died on July 21, 1875, at Bladen Springs, Alabama. He left no children, and his next of kin were bis sisters, viz ; Mrs. M. A. King, the appellant, and Mrs. Robinson, who resided in Ohio, and- his neices, Almira' and Josephine Martin, and a brother, who reside in Mobile, Alabama.

Indictment for Burglary. Appeal from the City Court of Mobile, Tried before Hon. O. J. Semmes. Appellant was indicted for burglary, at the November term, 1880, of the City Court of Mobile.

Bill in Equity to Cancel Conveyance as Fraudulent. Appeal from Clay Chancery Court. Heard before Hon. N. Smith Graham. This was a bill filed by Annie M. Grigg, against Owen Swindal and others.

Action for Money had and Received; Plea, nonassumpsit. Appeal from’ Mobile Circuit Court. Tried before Hon. H. T. Toulmin. The facts are stated in the opinion of the court. — If the defendant had reason to suspect that the money belonged to plaintiff, (appellant), he may recover it. — Ely v. Norton, 2 Abb. Ct. App. 19 ; Burn-ham v. Holt, 14 N. H. 367.

Bill of Review for Error apparent on the Record. Appeal from Mobile Chancery Court, Heard before Hon. H. Austell. All the facts which are necessary to be set out are stated in the opinion of the court. — It affirmatively appeared from the bill in the original suit, that the claim asserted therein was barred by the statute of non-claim, not havingbeen presented to the administrator, or filed in the probate court within eighteen months after the grant of letters.

Statutory Iieal Action, Appeal from Baldwin Circuit Court. Tried before Hon. H. T. Toulmin. This was a statutory real action, in tbe nature of an action of ejectment, brought by Rene Louis, Máxime Adrien, and Marie Octave Lalouette, and Gabrielle Morin, wife of Edward Morin, and Ann Delphine Ohaudon, wife of Claude Felix Chaudon, as the heirs of Antoine P. Lalouette, deceased, against Wm.

Statutory Real Action. Appeal from Talladega Circuit Court. Tried before Hon. John Henderson. This was a statutory real action, brought on tbe 9tb of February, 1872, by Thomas MoElderry against McMin Jones. On tbe trial, tbe plaintiff read in evidence three promissory notes, for one thousand dollars each, made by tbe defendant on January 21, 1859, and payable to the plaintiff,, in one, two, and three years after date.

Action by Employee against Railroad Company for ¡damages for Personal Injury. Appeal from the Circuit Court of Mobile. Tried before Hon. H. T. Toulmin. On the night of March lhth, 1876, at about ten minutes after 12 o’clock an irregular train, running from Montgomery to Mobile, over the defendant’s railroad, collided at Greenville with the regular train running north.

Trover before Justice of Peace ; Plea, want of Jurisdiction. Appeal from the Circuit Court of Etowah. Tried before Hon. W. L. Whitlock. The facts are stated in the opinion of the court. — The motion to dismiss, for want of jurisdiction in the justice’s court, was properly overruled. — Const. Ala. Art. YÍ, § 26.

Action on Written Contract; Plea, Set-off. Appeal from DeKalb Circuit Court. Tried before Hon. Lewis Wyeth. The material facts of the case are given in the opinion of the court, and it is only necessary to set out bere a part of the pleadings, and the charges of the court. The defendant filed ten pleas. The substance of the 3d, 8th, 9th, and 10th pleas are given in the opinion.

<p> Action for Penalty for Violation of Municipal Ordinance. </p> <p>Appeal from the City Court of Mobile.</p> <p>Tried before Hon. O. J. Semmes.</p> <p>The facts are sufficiently stated in the opinion.</p>

Statutory Beal Action. Appeal from Talladega Circuit Court. Tried before Hon. John Henderson. This was a statutory real action, brought by Summer A. Potts, I. Hudson, E. G. Hudson, and W. E. Hudson, against B. W. and T. H. Coleman, and E. A. Butt. The suit was commenced on May 1st, 1872.

Action for Breach of Im/plied Covenant in Lease. Appeal from Shelby Circuit Court. Tried before Hon. 'John Henderson. This was a suit brought by H. C. Reynolds against E. R. King to recover damages for the breach of a contract of letting. The facts are stated in the opinion of the court. There was a verdict for the defendant.

Bill in Equity to establish and enforce Resulting Trust. This was a bill in equity, filed on' the 14th of December, 1874, by Yirgil E., Lamartine W., and Caledonia J. Parker, against Naomi C. Jones, as administratrix of tbe estate of John W. Jones, dec’d, and Wm. A Jones, and others, as the heirs of John W. Jones.

Statutory Claim Suit. Appeal from Barbour Circuit Court. Tried before Hon. H. D. Clayton. On the 17th of December, 1878, George W. Stovall procured an attachment to be issued against W. F. Shannon and A. Bethune. The attachment was issued on the ground that Shannon & Bethune, being indebted to said Stovall for rent and advances, had removed part of the crops grown on the rented premises without the consent of the landlord, Stovall, and without paying the rent.

Trover against Commission Merchants, with Counts for damages for violating instructions in selling cotton. Appeal from Selma City Court. Tried before Hon. John Haralson. This was an action, brought by R. W. Atkinson, against W, B. Shields, as surviving partner of the firm of Williams & Shields. The ‘material facts of the case are statsfi in the opinion of the court. There was a judgment for the plaintiff, and its rendition is the error assigned.'

Motion to Re-tax Oosts in Action of Trover. Appeal from Cherokee Circuit Court. Tried before Hón. John Henderson.

Bill in Equity for Belief against Judgment at Law. Appeal from Talladega Chancery Court. Tried before Hon. N. S. Graham. This was a bill in equity, aud sought to perpetually enjoin a judgment at law, in favor of Norman et al. against Burns. The respondents answered denying the material allegations of the bill, and they also interposed a demurrer ou the ground: 1. That the bill failed to show any facts which entitled the complainant to the relief sought thereby. 2.

Appbal from Perry Circuit'Court. Tried before Hon. G. H. Craig. This was a motion made by W. M. Brooks against J. E. Warwick, sheriff of Talladega county, and the sureties on his official bond, for a summary judgment for the failure to return an execution.

Action on Promissory Note; Plea, non est factum. Appeal from Talladega Circuit Court. Tried before Hon. W. H. Smith. This action was brought November 7, 1865, by David McCullough, against tbe Talladega Insurance Company. The suit was founded on a promissory note, which is set out in full in the opinion of the court. The defendant pleaded, “ in short by consent,” 1, tbe general issue ; 2, non est factum. The case was tried on these pleas.

Action on Promissory Note ; plea, statute of non-claim. Appeal from Barbour Circuit Court. Tried before James M. Bueord, Esq., an attorney of the court, sitting and presiding in the case by consent of tbe parties, the presiding judge of tbe court being tbe party defendant.

Petition in Probate Court by Heirs to compel Administrators to malee Final Settlement. Appeal from Henry Probate Court, Heard before Hon. J. W. Poster, Register in Chancery, the Probate Judge being disqualified to try the case.

<p>1. Misjoinder of defendants to bill; for whom available. — Obe who is improperly joined as a defendant to a bill in equity, may take advantage of the misjoinder, but if he fails to appear and object, a demurrer on that ground, by his co-defendants, will not be sustained.</p> <p>3.. Multifarious ; what averments do not render bill multifarious. — In determining whether or not'a bill is multifarious, its object, averments, and prayer, mast all be considered ; and if it has a siugle object, to which alone the-prayer is directed, it is not rendered multifarious by avermeuts that are impertinent, or which merely seek to negative an anticipated defense.</p> <p>3. Contract;. test of right to enforce when impeached as illegal. — When the plaintiff requires the aid of an illegal transaction to support his contract, which is impeached as illegal, it is incapable of enforcement, but if he have rights originating in a transaction not offensive to law, and a right of recovery independent of an illegal transaction, although he may have participated in it, such transaction can not be employed to defeat his suit.</p> <p>4 Contract; this test of right to enforce applied, in this case. — A vendor' of lands who retained the legal title, but who afterwards voluntarily executed a deed to his vendee, to enable the latter to consummate a contract for the manufacture of iron for the Confederate States, during the war, has a right, springing out of the original contract of sale,- to enforce his lien on the lauds for the purchase-money.</p> <p>5. Statutes of limitation ; their operation and effect. — Statutes of limitation do not annul contracts, or extinguish debts, they only bar such- remedies as are-specified in them ; and where there are several remedies, to which a person-seeking to enforce a contract, or collect- a debt, may resort, the statute may bar one remedy, without affecting the right to resort to another.</p> <p>6. Liens; operation of statutes of limitition on. — AH liens for the payment of’ debts are in the nature of collateral securities, and may be given without affecting the right of the debtor to rely on the statutes of limitation, as a bar to an action in which a persbnal judgment would be reiidered against him, on the debt, operating on all his property.</p> <p>7. Same ; same. — The corresponding principle, that liens are preserved, although the remedy on the debt may be barred by the statute of limitations, prevails both in courts of law, and in courts of equity.</p> <p>8. Vendor's lien ; may be enforced., although remedy on purchase-money, note barred. — A vendor of land, whether he retains or has parted with the legal title, may enforce his equitable lien for the unpaid purchase-money, although an action on the note or debt is barred by the statutes of limitation,</p> <p>9. Same: how far vendee is protected on bill to enforce. — When the vendee, in good faith, and without notice of the vendor’s lien, has entered into possession of the land, and made valuable improvements thereon, he will be allowed compensation for them, and for partial payments made before notice, and the laud will be charged with the lien for the balance of the purchase-money, after deducting such payments, and the value of such improvements.</p> <p>10. Same; this rule applied to fads of this case. — A corporation, having purchased land in good faith, and entered into possession, without notice of the vendor’s lien for unpaid purchase-money, and having agreed to pay for it in the shares of its capital stock, will be allowed compensation for valuable improvements, although it has not delivered the stock nor received a deed, but will be compelled to answer to the vendor, for so much of the stock as will correspond to the extent of his lien on the land.</p>

Trial of the Bight of Property. Appeal from Cherokee Circuit Court. Tried before Hon. W. L. Whitlock. On the 19th of July, 1875, Stocks & Bro., through John T. Stocks, a member of the firm, took out an attachment against H. D. Cothran, Thomas McCulloch, Robert Marshall, and W. S. McElwain, on the ground that they were non-residents of the State of Alabama. This attachment was levied on one hundred tons of pig iron, at the Cornwall Furnace, in Cherokee county.

Action for Breach of written Oontract to collect Note Delivered as Oollateral Security. Appeal from Etowah Chancery Court. Tried before Hob. N. S. Graham. This was an action brought by W. T. Shook against Jos. G. Blount and Samuel Henry, and was founded on the following contract: “Gadsden, Ala., Sept. 1871.

Petition by Executor, in Probate Court, to have Homestead Set Apart for Minor Heirs. Appeal from Coosa Probate Court. Heard before Hon. John S. Bentley. On October 5th, 1877, Elmore Garrett, as executor of the last will of William Garrett, deceased, filed his petition in the Probat.e Court of Coosa county, where the administration of the estate of said William Garrett was pending, praying that a homestead, and other exemptions, be set apart to his minor heirs.

Bill in Equity to Enforce Vendor’s Lien on Land,. Appeal from Pike Chancery Court. Heard before Hon. H. Atjstill. This was a bill in chancery, filed on the 17th day of April, 1880, by Glenn Park and others, as the heirs at law of E. H. Park, deceased, against Henry C. Wiley to enforce a vendor’s lien on certain lands therein described.

Bill in Equity for Settlement of Trust, and Distribution of Funds. Appeal from Mobile Chancery Court, Heard before kon. John A. Foster. This was a bill filed July 13, 1880, by J. H. Hastie and W, H. Silver, as executors of tbe will of J. H. Hastie, Sr., against Clara Aiken, as administratrix of the estate of Alma Aiken, deceased.

Bill in Equity for Discovery and General Belief. Appeal from Talladega Chancery Court. Heard before Hon. N. S. Graham. This was a bill filed on the 20th of September, 1875, by Marcus H. Cruikshank, as administrator cle bonis non, with the will annexed, of the estate of Thomas Merritt, deceased, against William C. Luttrell. Thomas Merritt died in Green county, Georgia, leaving a will, of which he appointed bis son, Benjamin Merritt, the executor.

Bill in Equity by Tenant in Common, against Co-tenant, to enforce Lien on common property for over-payment of purchase-money. Appeal from Mobile Chancery Court. Heard before Hon. H. Austill. This was a bill in Chancery, filed on the 20th day of August, 1877, by Jas.E. Smart against Bobert E. Newbold.

Motion to Amend Judgment Nunc Pro Tunc. Appeal from Shelby Circuit Court. Tried before Hon. J. E. Cobb.

Tried of the Right of Property. Appeal from Cherokee Circuit Court. Tried before Hod. W. L. Whitlock. This was a suit commenced by an attachment, which was issued on the 19th of July, 1877, at the instance of John T. Stocks, and against H. D. Cothran, Robert Marshall, Thomas McCullough, and W. S. McElwain.

Action for Violation of Municipal Ordinance, Appeal from Selma City Court. Tried before Hon. John Harralson.

Bill to Redeem Lands Bold under Deed of Trust. Appeal from Cherokee Chancery Court. Heard before Hon. H. C. Speake. This was a bill in equity, filed on the 27tb of February, 1880, by Henry Young, against John T., and Wm. H. Stocks, and Wm. McFlratk.

Attachment for Rent, Plea, Former Recovery. Appeal from Talladega Circuit Court. Tried before Hon. John Henderson. Ichabod Moberly obtained an attachment against Solomon Peek from the clerk of the Circuit Court of Talladega county. The attachment was issued for rent of land, the affidavit stating that S. Peek had removed part of the crops grown on the rented premises without the consent of Moberly, the landlord. The defendant pleaded; 1. The general issue. 2.

Tried before Hon. N. S. Graham. • On August 3, 1880, Hon. N. S. Graham, Chancellor of the Eastern Chancery Division of the State of Alabama, rendered a decree in term time, in a cause pending in the Chancery-Court of Etowah county in favor of W. J. Sibert, as administrator of the estates of O. W. Ward, and Sarah A. Ward, against C. B. Maddox, W. P. Prickett, et al. The bill was filed to enforce an equitable lien on land.

BUI in Equity for Specific Performance of Mining Contract, and to Enjoin Violations of it. Appeal from Talladega Chancery Court. Heard before Hon. N. Smith Graham. This was a bill in chancery, filed May 31st, 1880, by the Alabama Iron Company against Henry Heine and George W. Chambers.

Bill in Equity by Married Woman, who had been Believed of Disabilities of Coverture, to set aside Transfer of Insurance Policy made by her in Payment of Husband’s Debt. Appeal from Mobile Chancery Courtij Heard, before Hon. H. Austill. This was a bill in equity, filed by Annie D. Holt, wife of Geo. W. Holt, against G. W. Agnew, Duncan T. Parker, and W. A. Smith.

<p>1. Duplicity in a complaint not ground of demurrer. — Duplicity in a complaint could only be reached, at common law, by special demurrers, and since the abolition of such demurrers, is not a ground of demurrer.</p> <p>2. Vendee of land under parol coniraet; when cannot resist action for purchase-money. — When the vendee of lands, or of an interest therein under a parol contract, takes possession under it, and his vendor is able and willing to protect him in the quiet enjoyment, he cannot successfully resist an action for the purchase-money.</p> <p>3. Error is not presumed, hut must he shown. —When the bill of exceptions does not set out all the evidence, this court will presume that the proof justified the rulings of the court below, unless the presumption is repelled by the record.</p>

Attachment for Rent and Advances, instituted before Justice of the Peace. Appeal from the City Court of Selma. Tried before Hon. John Henderson.

Pill in Equity, by Assignees, for Directions as to Execution of Trusts. Appeal from Mobile Chancery Court. Heard before Hon. H. Austill.

Assumpsit for Goods Sold and Delivered, and on AceovnS Stated. Appeal from Etowah- Circuit Court. Tried before Hon. W. L. Whitlock.

Bill in Equity to Enjoin Action of Ejectment, Appeal from Talladega Chancery Court. Heard before Hon. N. S. Graham. On the 4th day of March, 1871, W. A. Morris filed this bill against Sarah B. Ferguson and others, to enjoin an action of ejectment instituted by them, as the heirs at law of Jos. W. Ferguson, deceased, for the recovery of certain lands described in the bill. About the first of October, 1860, Jos.

Bill in Equity by Simple Contract Creditors to reach Property Fraudulently Conveyed by Debtors. Appeal from Dallas Chancery Court. Heard before Hon. Charles Turner.

Bill in Equity for Settlement of Guardian's Account. Appeal from Perry Chancery Court. Heard before Hon. Anthony Dillard. The bill in this case was filed on 22d December, 1875, by John Lee, Edgar Lee and Mary Lee, the latter two being infants and suing by their next friend, the said John Lee, against their guardian, JohnH.

<p>1. Security created by surety; when enures to creditor. —A security or trust created by the principal debtor for the benefit of his surety, and not limited in terms to the mere personal protection of the latter, is a security or trust for the payment oPthe debt, and enures to the benefit of the common creditor,</p> <p>2. Same ; same.— But, to have this effect, the trust or security must confer on the surety a clear right to appropriate it to the payment of the common debt, and the right to retain it until the debt be paid.</p>

BUI in Equity to Enjoin the Collection of Municipal Tax and Vacate Levy and Assesment. Appeal from the City Court of Selma. Tried before W. C. Ward, Esq., as special Chancellor.

Action on Promissory Note ; Plea, Statute of Limitations and of Non-claim. Appeal from Shelby Circuit Court. Heard before Hon. J. E. Cobb. This was an action brought on the 27th of May, 1872, by J. L. Elliott and G. W..-Bilberry, as administrators of the estate of Bennett Davis, deceased, against B. P. Allen, as administrator of the estate of R. J. Allen, deceased. The suit was founded on the following note, viz: “April 18, 1861. $900.

Tried before Hon. W. L. Whitlock. There was a motion entered on November 3, 1879, in tbe Circuit Court of Etowah county, by Amanda Humphries, S. L. Glass, Mary P., S. L., A. J., and Wm. G. Heald, against W. H. Lovins and the sureties on bis official bond, as late sheriff of Etowah county, for a summary judgment, for failing to pay over tbe sum of nine hundred dollars alleged to have been collected by him on an execution, issued in favor of the. movants against E. I. Holcombe.

Statutory Real Action. Appeal from Cleburne Circuit Court. Heard before Hon. John Henderson. On December 20, 1875, John T. Casey and Tt, T. Acker, as administrators of the estate of Thomas White, deceased, brought this action against Thomas Morgan and Looney Sanford, to recover a tract of land in Cherokee county, Alabama. The defendants pleaded — 1. Ne unques administrator : 2. Not guilty ; 3. Statute of limitations of ten years ; 4.

Bill in Equity by Mortgagee to Prevent Removal of the Mortt gaged Property out of the State.

Bill in Equity by Judgment Creditor to have Mortgage Declared General Assignment. Appeal from Pike Chancery Court. Heard before Hon. H. Austell. This was a bill in chancery, filed November 27, 1877, by Arnold Teal against Jas. S. Shirley and Fox Henderson.

Bill in Equity for Settlement of Partnership Accounts. Appeal from Mobile Chancery Court. Heard before Hon. H. Austill.

Bill in Equity by Creditor to set aside Deed as Fraudulent. Appeal from Pike Chancery Court. Heard before Hon. H. Austill. This was a bill in chancery, filed by A. Lemon, against Marcus, James, and W. M. Pyron.

Action 07i Promissot'y Note. Appeal from Talladega Circuit Court. Tried before Hon. John Henderson.

Contested Application for Letters of Administration. Appeal from Etowah Probate Court; Heard before Hon. L. E. Hamlin. On December 1st, 1880, John D. Chandler filed bis petition in the Probate Court of Etowah county, praying that letters of administration de bonis non be granted to A. P. Thompson, as sheriff of said county, and ex-officio administrator.

Bill of Interpleader. Appeal from Mobile Chancery Court. Heard before Hon. H. Austill. Tbis was a bill of interpleader, filed by the Alabama Gold Life Insurance Company against Mary Carnes Conley, Mary Conley Woodruff, and George Woodruff. On the 22d of February Patrick C. Conley insured bis life in the Alabama Gold Life Insurance Company for $2,000, in favor of Ms wife, Mary Conley. At the time of the death of Mrs. Conley, this policy was in full force.

Trover. Appeal from Talladega Circuit Court. Tried before Hon John Henderson. This was an action of trover, brought January 28, 1876, by S. O. Kelly against Andrew J. Street, for the conversion by tbe latter of six mules, three wagons, &o. The plaintiff testified that be sold tbe property in controversy to Robbs Bros, on November 14, 1874, and took from them a mortgage, or lien to secure tbe unpaid purchase-money.

Bill in Equity by Purchaser, against Heirs and Administrator of Deceased Vendor, for Specific Performance. Appeal from tbe Chancery Court of Macon. Heard before the Hon. R. F. Ligón, as special Chancellor, selected by the parties on account of the disqualification of the Hon. N. S. Graham.

Action to recover Statutory Penalty for Failure to Enter Satisfaction of Mortgage on Records. Appeal from the Circuit Court of Macon. Tried before tbe Hon. James E. Cobb. This action was brought to recover the statutory penalty of $200, for the failure of the defendants, Swanson & Brother, sued as a partnership, to enter satisfaction of a mortgage, on request, and was commenced on the 7th August, 1875.

Trover for Conversion of Horse. Appeal from tbe Circuit Court of Lee. Tried before the Hon. James E. Cobb. Tbe action in this case was commenced on tbe 12th of September, 1878, and was brought by Mary S. Willis as plaintiff. The complaint, as copied in the transcript, was against Forney Benfro as sole defendant, and claimed “ of the defendants $500, as damages for the conversion by them, on the 28th November, 1875,” of a bay mare, the property of tbe plaintiff.

Bill in Equity for Account, and Cancellation of Mortgage. Appeal from the Chancery Court of Lowndes. Heard before the Hon. John A. Foster.

Ejectment by Mortgages. 4. Payment of mortgage debt, as defense to action by mortgagee. —TJuder a mortgage of chattels, payment of the mortgage debt, before action brought, will defeat a recovery ; but, in reference to mortgages of real estate, this court has adopted a different rule, and holds the mortgagee en itled to recover at law, as against the mortgagor and those claiming under him, whenever the mortgage is silent as to his right to take possession, or when-the period…

Bill in Equity to Enjoin Use of Party-wall, without Contribution r Appeal from the Chancery Court of Montgomery. Heard before the Hon. H. Austill.

Trover, Appeal from Talladega Circuit Court. Tried before Hon. W. L. Whitlock. On January 25, 1876, E. B. Nelson brought this action against Andrew J. Street, claiming ten thousand dollars as damages for the conversion by tlie latter of certain mules, wagons, etc., and also 4,000 cords of wood and 50,000 bushels of coal.

Creditors’ Bill in Equity to set aside Fraudulent Conveyance by Deceased Debtor, and for settlement of Insolvent Estate. Appeal from the Chancery Court of Butler. Heard before Hon. H. Austill.

Contest of Creditor's Claim Against Insolvent Estate. Appeal from the Probate Court of Macon county. . Heard before the Register in Chancery, on account of the disqualification of the probate judge.

Trover. Appeal from Montgomery Circuit Court. Tried before Hon. J. Q. Smith. This was an action of trover brought on October 1st, 1879, by Trank H. Elmore against J. Simon & Bro., and was commenced before John B. Fuller, Esq., a justice of the peace of Montgomery county. The complaint, which was in tbe form prescribed by the Code for actions of trover, claimed damages for the conversion of a bale of cotton, on which tbe plaintiff held a mortgage.

Bill in Equity by Junior Mortgagee for Account, and for Marshalling Securities. Appeal from Montgomery Chancery Court. Heard before Hon. H. Austill. This was a bill in equity filed on November 28, 1877, by Rebecca A. Turner against W. R. Flinn, Henry Jones, James W. Hardie and Julius T. daze.

Action to Recover Damages for Injuries, Resulting in Death of Person Walldng on Railroad. Appeal from the City Court of Montgomery. Heard, before the Hon. John A. Minnis. This was an action brought by James W. Cook^as administrator of the estate of Jacob Gunter, deceased, against the Central Bailroad and Banking Company of Georgia and the Georgia Bailroad and Banking Company, to recover damages for injuries inflicted on said Jacob Gunter, from which he died.

Bill in Equity to set aside Chancery Decree, for Fraud. Appeal from the Chancery Court of Lee. Heard before Hon. N. S. Graham. Held: or claimed to hold, against McCauley. The bill in this case alleged these facts, and purported to make a copy of the deed on exhibit, marked “Exhibit F.”; but the’ exhibit is not set out in the transcript, nor is it included with the other exhibits in the note of submission.

Bill in Equity to establish Equitable Set- Off against Judgment. Appeal from the Chancery Court of Montgomery. Heard before Hon. H. Austill.

Action on Sheriff’s Bond for Damages for Failing to Return Execution. Appeal from Etowah Circuit Court. Tried before Hon. W. L. Whitlock. This action was brought by G. J. Marcum against Thomas J. Burgess, and the sureties on his official bond as sheriff of Etowah county.

Homestead Exemption. Appeal from Henry Circuit Court. Heard before Hon. H. D. Clayton. It appears from the record, that on March 9tb, 1876, Lehman, Durr & Co. recovered a judgment against Henry Wechsler, in the Circuit Court of HeDry county, upon which execution was issued and a levy made by the sheriff upon a stock of goods owned by the defendant.

<p> Bill of lieview. </p> <p>Appeal from Dallas. Chancery Court.</p> <p>Heard before Hon. Charles Turner.</p> <p>The facts are stated in the opinion.</p>

Bill in Equity to Cancel the Deed of a Married Woman to her Statutory Separate Estate, to compel the Conveyance to the Wife of Lands Bought with Money, a part of her Statutory Separate Estate, and to have an Account talcen of Bents and Profits of the Lands while out of her Possession. Appeal from Chancéry Court of Marengo. Heard before Hon. Charles Turner. The original bill in this cause was filed July 3, 1875, by Arabella Prince, through her next friend, Oliver P. Boddie.

Action on Official Bond of Sheriff. Appeal from tbe Circuit Court of Pike. Tried before tbe Hon. H. D. Clayton. Appellees, George T. Malone and O. J. Knox, as surviving partners of the firm of Knox, Malone & Knox, brought this action against appellant in August, 1830, for five hundred dollars, with interest from the 1st of November, 1876, for damages for the breach of appellant’s bond as sheriff of Pike county. The sureties on this bond were not joined as parties defendant.

Homestead Exemption, and Redemption of Land held under a Mortgage. Appeal from Dallas Chancery Court. Heard before Hon. Charles Turner. In December, 1874, the appellee in this cause obtained a judgment in an attachment suit brought in the Circuit Court of Dallas county against the appellant, L. H. Montgomery. The judgment condemned the interest of Waugh in the land, the subject of this suit in Chancery.

Action on aPromissory Note. Appeal from Selma City Court. Heard before Hon. Jonathan Haralson. Miller, the appellant in this cause; was the administrator of the estate of Elizabeth H. Mitchell.

Bill in Equity to enforce Vendor’s Lien on Land. Appeal from the Chancery Court of Chambers. Heard before the Hon. N. S. Graham.

Bill in Equity to Enjoin the Erection of a Dam. Appeal from the Chancery Court of Pike. Heard before Hon. H. Austill. The opinion sufficiently states the facts. — The complainant had a right to maintain a bill in equity for an injunction. — See Wood’s Law of Nuisances, page 835, § 783, page 711, § 698, note 2, citing Mills v. Hall, 9 Wend.

<p>1. Municipal corporalion ; who cannot bind. — Neither the agents, officers, nor city council of a municipal corporation can bind the corporation by any contract which is beyond the scope of its powers, or entirely foreign to the purposes of the corporation, or which (not being in terms authorized), is against public policy,</p> <p>2. Same; when bound by Us agents or officers. — A municipal corporation is bound only when its agents or officers, by whom it can alone act, if it acts at all, keep within the limits of the chartered authority of the corporation.</p> <p>3. Same; contracts of; when ultra vires. — All contracts of municipal corporations, which are not necessary and proper in order to carry into effect the powers expressed m their charters, and which are not germane to the governmental purposes for which such corporations may have been organized, are ultra vires.</p> <p>4. Same; charter of; in case of doubt, how construed. — In case of any doubt or ambiguity arising out of terms used in the charters of municipalities and counties, which are invested with civil policies, and political functions, the charters are strictly construed against the existence of such doubted power, and are resolved by construction in favor of the public.</p> <p>5. Charier of the city of JHufaula; section 24 of, construed. — The charter of the city of Eufaula, entitled “An Act to establish a new charter for the city of Eufaula,” approved February 28, 1870, (Session Acts 1869-70, pp. 186, 194), conferred “full power and authority upon the city council to purchase and provide for the payment” of “all such real estate and personal property as may be required for the use, convenience, and improvement of the city,” &c. Acting under this power, the city council of Eufaula purchased a tract of land located within the corporate limits of the city, for the benefit of the S. E. Ala. A. & M. Ass., and as a place for holding “ their annual fairs,” and the association was given “the exclusive use of the premises.” The consideration paid was $10.000 of the bonds of the city, running twenty years and bearing interest from date with coupons attached. Held, that the action of the city council in making the purchase of the land for the particular purpose for which it was bought, was ultra vires.</p> <p>6. Same ; purchase of property in aid of private enterprise, not permitted.— Under such a power in a charter it is not contemplated, nor permissible, that such property shall be acquired in aid of any private enterprise not of a public character, however laudable may be its purpose, or however useful may be its encouragement.</p> <p>7. Municipal corporation; right of to contract, how limited. — The right of a municipal corporation to contract must be limited by the right to tax, and if in the given case no tax can lawfully be levied to pay the debt, the coniraet itself is void for want of authority to make it.</p> <p>8. Estoppel; when does not apply to municipal corporation. — When a municipal corporation makes a contract which is ultra vires, tho fact that interest has been paid on tbe debt created by such contract, either by the corporation itself, or by the beneficiary of the contract, with the concurrence of the corporation, does not affect the case, and cannot work an estoppel.</p> <p>9. MU to enforce vendor’s lien; when can not he retained after failure of Us specific end. — Where the case made out by a bill is that of a vendor’s lien, and the prayer of the bill is for the enforcement of the lien and a money decree for any balance due, it cannot, when i t fails as to this specific end, be retained as a bill for rescission and cancellation.</p> <p>(Note. — No briefs have come into the bands of tbe Reporter.)'</p>

Bill in Equity to Enforce, Mechanic's Lien. Appeal from Barbour Chancery Court. Heard before Hon. Neil S. Graham. In 1873 Kehoe & Ramsey contracted, in writing, with William P. Copeland to build the brick work of a warehouse in Eufaula. The work was completed by Kehoe & Ramsey, and approved by Copeland, but the latter failed to pay the entire amount due on the work.

<p> Bill in Equity to Establish a Resulting Trust in Land. </p> <p>Appeal from Wilcox Chancery Court.</p> <p>Heard before Hon. Charles Turner.</p> <p>The facts appear in the opinion.</p>

Petition for Sale of Lands for Partition. Appeal from the Probate Court of Cherokee. Heard before Hou. James H. Leath.