Volume 68 — Alabama Reports

' Heard before Hon..Charles Tubner. The appellee, claiming to own four hundred of the first mortgage bonds of the Selma, Marion and Memphis Railroad Company, filed this bill in his own behalf, and in… Held: were not made parties defendant, and that hence the suit should be abated. These were substantially the facts in the case, as there does not appear to have been any discrepancy between the allegations of the bill and answer and the evidence adduced in their support.

Heard before T. W. Sprott, Register in Chancery; (the Probate Judge being incompetent to try the cause.) This was a motion made by Elijah A. Steele and S. S. Ring to quash executions issued out of the Probate Court of Perry county in favor of H. C. Graves and others. These executions were issued against W. B. Modawell, E. A. Steele, Robert L. Steele, S. S. Ring, John Moore, and J. B. Cocke.

This was a motion made by R. L. Steele, tbe appellant, to quash certain executions issued out of the Probate Court of Perry County. On July 15, 1865, said Steele became one of the sureties on the bond of W. B. Modawell as administrator of the estate of R. H. Hudson. On May 30tb, 1868, Steele was adjudicated a voluntary bankrupt by the United States District Court for tbe Southern District of Alabama, and on July 27,1869, received bis discharge.

Tried before the Hon. H. D. Clayton. Eobert Cherry was indicted at the Spring term, 1880, of the Circuit Court of Pike county, for selling or giving liquor to Daniel Allen, a minor.

<p>Appeal from Madison County Court.</p> <p>Heard before Hon. War. Richaedson.</p> <p>The facts appear in the opinion.</p>

Heard before Hon. Charles Turher. This was a bill in equity filed October 25,1876, by Samuel O. Young against John C. and Eobert E. Young, as executors of the last will of Samuel Young, deceased, and against them individually, and also against Jos. H. Bonner and Thos. G. Jenkins, as sureties on the bond of J. C. and R. E. Young, as executors.

Tried before Hon. H. D. Claytoh. Appellant was indicted at the Spring Term, 1881, of the Bullock Circuit Court, for carrying a pistol concealed about bis person. The act for which be was indicted was done before the enactment of the statute of February 19th, 1881, and the indictment was found under section 4109 of the Code of 1876.

Tried before the Hon. Geoiige H. Craig-. The facts are sufficiently stated in the opinion of the court. Held: that -the bringing of the action was a greater offense than the imprisonment of the plaintiff, for it was a bold attempt, both against the government and justice in general.

Tried before Hon. Jm Hahalson. This was a statutory real action brought March 4, 1879, by Sallie A. Jones, against Frank G. Ellis, to recover certain lands which were described in the complaint. The New Orleans and Selma Railroad and Immigration Association was, on motion, permitted to come in and defend, as landlord, the possession of its tenant, Ellis.

Tried before Hon. Jsro. Habalson. were indicted for burglary and grand larceny at tbe January Term, 1880, of the City Court of Selma. At the same term a nolle prosequi was entered as to tbe defendant Hattrick. Isaiah Lumpkin moved to quasb tbe indictment, on tbe around that the grand jury, by whom it was found, was not sworn according to law.

Tried before Hon. Geo. H. Cbaig. was indicted at tlie Fall Term, 1879, of the Circuit Court of Dallas county, under the second section of the act of February 1, 1879, to prevent, in certain cases, the sale, exchange and transportation of cotton, in the counties of Montgomery, Dallas, &o. The indictment charged that the defendant “did, after sundown, and before sunrise of the succeeding day, transport or remove in Dallas county, cotton in the seed.” The defendant demurred to…

Tried before Hon. H. D. Clayton. This suit was commenced by an attachment for rent which was issued December 29th, 1879, against James R. Hill, at the instance of George Y. Culver. The attachment was issued on the ground that the defendant had removed from the premises, rented by him from the plaintiff, part of the crop grown thereon, without paying the balance claimed to be due as rent. After the plaintiffs complaint was filed, the defendant pleaded : 1.

Heard before Hon. A. W. Dillakd. This was a bill in equity filed by Geo. W. Cox and others, against the Tuscaloosa Manufacturing Company, its treasurer, B. Friedman, and others. The averments of the bill are clearly summarized in the opinion of the court, and hence need not be stated here. An injunction was granted, on the filing of the bill, and the respondents moved, in vacation, for its dissolution.

Heard before Hon. Charles Turner. This was a bill in equity filed September 6, 1879, by S. T. Morgan as administrator de bonis non of the estate of Daniel D. Morgan and others, against Dula C. Morgan, the widow of J. G. Morgan, deceased. Tbe averments of the bill, tbe demurrer thereto, tbe pleas of tbe defendant, and also the demurrers to them, are sufficiently stated in the opinion of the court.

Tried before Hon. George H. Craig. The first count of tbe indictment in this case, which was found at the Spring Term, 1880, of the Circuit Court of Perry, charged that “George Washington wilfully set fire to, 'or burned, a cotton house, which, with the cotton therein contained, was of the value of five hundred dollars, tbe property of Porter King.” Tbe second count charged that “George Washington wilfully set fire to or burned a cotton bouse, the property of Porter King.”…

Tried before Hon. JOHN K. HeNRY. This was an action of trover brought by Amanda M. Beeves, the appellee, against W. H. Linam, the appellant, to recover a horse which was the corpus of her statutory separate estate, and which her husband bad mortgaged to appellant to secure the payment of a bale of cotton.

Tried before Hon. Jon. HaRáLson. This was an indictment for murder.

Tried before Hon. H. D. Clayton. Appellant was indicted for burglary, in breaking into a gin-house, wherein there was seed cotton kept for use, with intent to steal.

Geo. H. Oeaig. This action was brought by Elias B. Thompson, as the administrator with the will annexed of David Lee, deceased, against William T. Downey, to recover the possession of a tract of laud particularly described in the complaint; and was commenced on the 29th July, 1874. It was admitted that David Lee, the plaintiff’s testator, was seized and possessed of the lands now sued for, at the time of his death; and that he died some time during the year 1863.

Heard before the Hon. Chaeles TukheR. The original bill in this case .was filed on the 16th November, 1868, by Mrs. Mary M. Walker, as the widow of Thomas Walker, deceased, and sought an assignment of dower in -certain lands, of which her said husband was alleged to have been seized and possessed during their coverture, and an account of the rents and profits since his death; and the •complainant having died pending the suit, it was revived in the name of John P. Tillman,…

The appellant in this case, Andrew S. Steele, filed his petition in said court on the 1st day of March, 1881, seeking to set aside, vacate and annul an execution issued by said court, a sale of his lands under said execution, and a sheriff’s deed to Henry A. Tutwiler, as the purchaser at the sale.

H. D. Olaíton. This action was brought by William C. Oates, against Britton Searcey, to recover tbe possession of a tract of land particularly described in the complaintand was commenced on the 13th February, 1877.

AppeaE from the Chancery Court of Greene. Heard before the Hon. A. W. Dillard.

<p>Appeal from the Chancery Court of Hale.</p> <p>Heard before the Hon. Charles Turner.</p>

In the matter of the application of Jesse Folmar, for authority to construct a mill-dam across “ King’s Mill creek,” a non-navigable water-course in said county, for the use of a mill to be erected “on the east side of said water-course,” on lands belonging to the petitioner, which were described as the “west half of the north-easi; quarter of section 83, township 9, range 19.” The petition was filed on the 23d February, 1880, and was contested by George S. Folmar, on whose…

Tried before the Hon; Geo. H. Ciíaig. This action was brought by P. A. Tutwiler, against Thomas T. Munford and P. J. Knox, to recover the possession of a tract of land' particularly described ; and was commenced on the 21st February, 1880. The cause was tried on issue joined on the plea of not guilty, and the defendants’ possession was admitted.

Tried before tbe Eton. H. D. Clayton. This action was brought by Marilda J. Bowdin and W. J. Parish, against “ S. A. & D. Williams,” and was commenced on the 13th March, 1876.

Tried before the Hon. Luthee R. Smith. This action was brought by William O. Winston, against Orrin R. Joiner, to recover damages for trespasses committed by defendant’s cattle on plaintiff’s lands, situated in “Lacey’s Beat” in said county; and was commenced before a justice of the peace, on the 1st August, 1874.

In the matter of the estate of Robert Carlisle, deceased, on the statement of the accounts of Moody H. May as administrator.

Tried before the Hon. Geo. H. Craig. This action was brought by the appellants, suing individually, against John J. Godwin, and was commenced on the 18th May, 1879. A general charge in favor of the defendant, given ¿on his request, and the refusal of a general charge in favor of the plaintiffs, requested by them, are the only matters assigned as error. All the material facts are stated in the opinion of the court.

In tké matter of the estate of Mrs. Keziah Ford, deceased,, on final settlement of the accounts and vouchers of James G. Ford as administrator. The decedent died in November,, 1876, and letters oí administration on her estate were duly granted, o'n the 9th February, 1877, to said James G. Ford, wbo was ber son. In May, 1879, tbe administrator filed bis accounts and vouchers for a final settlement, and the 9th June was appointed as tbe day for the settlement.

Tried before the Hon. John Moose. . This action was brought by Melvin Harris, against Andrew Dargan, and was commenced before a justice of the peace on the 2d January, 1880.

Tried before the Hon. JoNA. Haealson. This action was brought by Harriet S. Perkins, against the city of Selma, as a municipal corporation, to recover damages for personal injuries sustained by the plaintiff by falling into a ditch while crossing the street at the intersection of Selma and Lauderdale streets, on or about the 4th December, 1877 ; and was commenced on the 4th May, 1878.

Heard before the Hon. Charles TurNER. The original bill in this case was filed on the 11th August, 1877, by John Reid, jr., as the surviving partner of John Reid & Co., against the executor of the last will and testament of Alfred Battle, deceased, and against William A, Battle and his wife, and their three daughters ; and sought to set aside a deed of gift, by which said Alfred Battle had conveyed a large tract of land to Mrs. Battle and her daughters, appointing her…

Tried, before tbe Hon. Alpheus Bakes. This action was bought by A. E. Payne, against M. M. Berringer, and was commenced on the 16th May, 1878. Tbe complaint was in case, claiming $200 as damages, on account of tbe defendant’s alleged false representations as to the amount due ou a promissory note, which he had transferred and assigned to the plaintiff in part payment for a horse.

From the Circuit Court of Monroe. Tried before tbe Hon. H. T. Toulmin. The defendant in this case, Charles Roberts, was indicted in October, 1879, for the murder of Duncan Rankin, by shooting him with a gun.

Tried before the Hon. John 3L Henby. This action was brought by B. W. Atkinson, against D. P. Jones, to recover “ one mouse-colored mule, named John, of the value of $60, with the value of the hire or use thereof during the detention, from the 1st January, 1879;” and was commenced on the 19th May, 1879. The defendant pleaded non detinet, in short by consent; and the trial was had on issue joined on that plea.

Heard, before the Hon. N. B. GRAHAM. The original bill in this case was filed on the 6th November, 1878, by Early & Lane, a mercantile partnership doing business in the city of New York, and several other mercantile partnership of that city, against Hastings E. Owens, his wife, Mary E. Owens, and others ; and sought to set aside a deed by which said H. E. Owens conveyed certain lands and personal property to Jesse A. Corbitt, in trust for his wife, Mrg.

Tried before the Hon. H. D. ClaytoN. This action was brought by Matthew Lassiter, against Phil. McKay and James T. Kendall, as joint makers of a promissory note for $256, payable to the plaintiff or bearer ; and was commenced on the 11th October, 1878. Both of the defendants were served with process, but neither appeared or pleaded, so far as the record shows.

Tried before the Hon. John Henderson. This action was brought by B. B. Lewis and Henry B>. Lyman, as executors of the last will and testament of Edward Davis, deceased, against Abner J. Wells and others, to recover the possession of a tract of land particularly described in the complaint; and was commenced on the 1st March, 1870.

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 14th March, 1878, by Daniel Bowlett, against Thomas McKenna and his wife, Mrs. Martha B. W. McKenna; and sought to subject a house and lot in Eufaula, alleged to belong to Mrs. McKenna,-to the payment of a promissory note for $854.37, executed by said McKenna and wife, dated the 30th December, 1875, and payable one day after date, to the order of Bowlett & Labatut, a mercantile partnership of which…

Tried before Hon. H. D. Clayton. The appellant in this ease, ~W. E. Meredith, obtained a judgment in the Circuit Court of Pike, on the 11th day of April, 1878, against John Holmes and others, for $350 damages, besides costs. An alias execution, issued on this judgment, was levied by the sheriff, on the 30th January, 1879, on a tract of land containing one hundred and sixty acres, as the property of said John Holmes, and which he claimed as his homestead.

Tried before the Hon. H. D. Clayton. Tbe appellants in this case obtained a judgment in said Circuit Court, on the 9fch March, 1876, against Henry Weeh-sler, for $881.25, besides costs; and an execution issued on this judgment was levied by the sheriff, on tbe 29tb March, 1876, on a stock of goods, consisting of hardware, dry-goods, groceries, &e., in the possession of M. W. Kelly.

<p>Appeal from the Circuit Court of Bulloch.</p> <p>Tried before the Hon. H. D. Clayton.</p>

The record does not show the name of the presiding chancellor. This was a motion by Alfred Holly, the appellant, to se& aside a sale of lands uncler execution, issued on a decree rendered against him by said court, in favor of Alfred Teel, as the administrator of the estate of Bennett B. Bass, deceased. The bill in that cause was filed by said administrator, on the 16th March, 1877, against said Holly and one John Earner; and sought to enforce a vendor’s lien on lands.

<p>Appeal from the Chancery Court of Hale.</p> <p>Heard before the Hon. Chaeles Turreb.</p>

Tried before tbe Hon. Luther R. Smith. This action was brought by Mary Rice, a freed-woman, against Benjamin E. Richardson, as the administrator of the estate of Boykin Rice, deceased; and was commenced on the 17th August, 1878.

Heard before the Hon. Chakles Tubheb. The opinion of the court in this case states all the material facts. The chancellor overruled a demurrer to the bill for want of equity, on the ground that tbe court had no jurisdiction of the case; but, on final bearing, on pleadings and proof, he dismissed the bill; and his decree dismissing it is now assigned as error.

Tried before the Hon. JoNA. Haealson. This action was brought by J. O. Childers, against the partners composing the late firm of Bowen & Walthall; and was commenced on the 5th April, 1877.

Heard before the Hon. Charles Turner. The bill in this case was filed by the personal representatives and heirs at law of Mrs. Sarah Bryan, deceased, against Malone & Eoote, commission-merchants doing business in the city of Mobile, and against the heirs and distributees, of the estate of Joseph H. Bryan, deceasedand sought an injunction of a sale under a mortgage executed by Mrs.. Bryan to said- Malone & Eoote, an account and redemption, and the cancellation of the mortgage.

Heard before Hon. A. W. Dillard. 'On the 3d June, 1871, the Agricultural and Mechanical Association of West Alabama was organized as a corporation under the general laws of this State, by the adoption of a constitution and election of officers, the incorporators having previously filed their declaration in writing with the judge of probate of Greene county, as required by the statute.

<p> Bill in Equity to remove Administration of an Insolvent Estate from the Probate Court, and to have Lands sold which had been set apart to the Widow as a Homestead Exemption. </p> <p>1. Homestead exemption in favor of widow as against purchaser of lands, with warranty, evicted, under paramount title; by what law governed. — A purchaser of lands, with full covenants of warranty, who is afterwards evicted by a title paramount and outstanding at the time the covenant of warranty was entered into, is regarded as a creditor of the vendor from the date of the execution of the deed, and not from the date of the eviction; and hence, the widow of the deceased vendor is not entitled to a homestead exemption as against the purchaser’s claim for damages for the breach of the warranty, under a statute enacted after the exocution of the deed, although of force at the time of eviction.</p> <p>2. Lands belonging to a decedent’s estate; relation of personal representative and creditors in administration of. — In the administration of landed assets, the personal representative represents the creditors, and antagonizes the heirs; but when the widow is the personal representative, her interests become antagonistic to those of the creditors^ whenever she asserts a claim to the realty, or any part of it in her own right; and in such case she can not represent their adversary rights,</p> <p>3. Homestead exemption in favor of the widow ; when not binding on creditors. — Where the widow was allotted a homestead exemption in the lands of her deceased husband, after Ms estate had been declared insolvent, on an ex parte proceeding before the judge of probate, without notice to any one, such allotment does not rise to the dignity of a judicial determination against the rights of creditors; nor does it preclude them from showing that, as against their claims, she was not entitled to the exemption.</p> <p>4. Decree discharging personal representative on final settlement; its effect. — As against the administrator of an insolvent estate, who has made final settlement and distribution of all the assets in his hands among the creditors, the decree on such settlement discharging him from further liability, is conclusive; but when a creditor seeks, by bill, in equity, to subject lands belonging to the estate, and in which the executrix of the deceased debtor claimed and was allowed a homestead exemption as his widow, after the estate had been declared insolvent oh her report, a decree discharging a subsequent administrator on final settlement made by him, does not preclude the creditor from asserting his claim against tire lands so allowed to her as exempt, although he may have been a party to the settlement made by the administrator.</p> <p>5. Insolvent estate; when administration may be removed into the chancery court. — The administration of an insolvent estate may be removed into the chancery court, on a bill filed by a creditor, showing that a homestead exemption had been allotted to the widow on ex parte proceedings instituted by her while she was executrix, without notice to the creditors, and that she was not entitled to such exemption as against his demand, and seeking to have the lands so allotted sold for the payment of debts. While such allotment was irregular and hot binding on the creditors, it was calculated to engender distrust or doubt of the title, and to hinder a fair-sale if the. property, unless the invalidity of the allotment was first declared, and the property ordered to he sold free of incumbrance ; and this the chancery court has the power to do, while the probate court could' only order a sale, and leave, the question of title to be afterwards determined.</p> <p>6. Same. — The principle is recognized that the settlement of an. insolvent estate should not be removed into the chancery court without special reasons.</p>

Tried before Hon. H. D. ClavtoN. This was a real action in the nature of ejectment, brought by the appellee against the appellants, and was commenced on 9th March, 1878.

Heard before Hon. A. W. Dillard. On the 17th September, 1877, George W. Parham,'as the administrator of the estate of John P. Parham, deceased, filed the bill in this cause against Moody H. May Jr., as the administrator, with the will annexed of Moody H. May Sr., deceased, and Eliza May and others, infants, and devisees under said will, for the purpose of subjecting lands devised to said infant defendants, and which had passed into their possession, to the payment of a…

Appeal- from Macon Chancery Court. Heard before Hon. N. S. Geaham.

<p> Assumpsit against Bank by Depositor for Deposit. </p> <p>1. When charge is properly refused. — A charge which withdraws material evidence from the consideration of the jury, or requires explanatory charges to prevent it from being misleading, is properly refused, notwithstanding it may assert a correct legal proposition.</p> <p>2. Chech on a bank by one depositor to another; what constitutes a payment. — Where it is shown to he out of a bank’s course of business to receive for collection checks drawn on it by its depositors, and a check on it, drawn by one of its depositors in favor of another, i s presented by the latter, and the amount thereof is credited on his pass-book as a deposit, and the check is placed on the file of paid and canceled checks, and af-terwards the amount of the check is also entered to his credit, and charged against the drawer, on the books of the bank; these facts constitute a payment of the check, and the amount of it can not be withheld by the bank on discovering that the check was an unauthorized •over-draft, and the drawer was insolvent.</p> <p>3. Same. — A charge is erroneous and properly refused, which affirms, as matter of law, that, if the drawer and payee of a check are customers ■of the bank on which it is drawn, the presentation of the check by the payee to the bank, and the noting br entry of it by the bank on his pass-book as a deposit, do not operate as a payment of the check; and that, if within a reasonable time the bank ascertains that the cheek is an unauthorized over-draft, and offers to return it, there is no liability to the depositor,</p> <p>4. Same. — In such case no presumption arises that the bank received the check merely for collection and in the capacity of agent for the holder; but a presumption of payment of the check does aiige and the onus of overcoming that presumption rests upon the hank; anait can only foe removed by evidence that such was-not the intention of the parties, derived from the course of businsss with the depositor, or from contemporaneous acts or declarations.</p> <p>5. Over-draft on bank; when a fraud. — JÍ a holder of a check, with full knowledge that the dra-wer is without funds in hank to meet it, and has no just reason to believe that the check will be honored in the absence of funds, he is wanting in good faith, if lie demands and receives payment, especially if it is known to him, that the drawer is insolvent, and the bank is ignorant of the insolvency.</p> <p>6. Same; scienter must be clearly proved. — In such case, fraud being imputed to the holder of the check, knowledge of the want of funds must foe clearly traced to him. It can not he inferred from the relations existing between him and the drawer, hov/ever intimate, unless connected with inculpatory facts or circumstances.</p> <p>7- Laches net mistakes. — Laches are not mistakes, nor can they he confounded.</p>

Tried before Hon. Wm. S. Mudd. This was an action on the case, brought by Thomas A. Anderson and others against Matthew Hughes, to recover damages resulting from the overflow of their lands, caused by ditches cut and opened by the defendant on lands owned by him, and adjacent to the lands of the plaintiffs, and was commenced on 9th September, 1876.

Tried before Hod. Luther R, Smith. This was an action in the nature of ejectment, brought by John H. Lee and others, the appellees, against the appellant for the recovery of a tract of land situate in Choctaw county, and'which bad been sold for taxes and purchased by the appellant;. and was commenced on 1st October, 1879.

Tried before Hon. John II. Henry. This was a proceeding instituted by the appellant against tbe appellee, as sheriff of Wilcox county, fora summary judgment for failing to make the money on an execution, under the provisions of section 3358 of the Code of 1876. The cause was submitted to, and tried by the Circuit Court on an agreement of the parties, and an agreed state of facts.

Tried before Hon. H. D. Clayton. This was a motion by the appellant for a summary judgment under the statute against the appellee, an attorney at law, for moneys collected by him as such attorney for and on account of the appellant.

Tried before Hon. H. D. Clayton. Dennis Danzey and others, the' appellants, were indicted for an assault with intent to murder. As shown by the judgment entry, they were first tried on the plea of not guilty “of an assault with intent to murder,” and the jury returned a verdict finding them “not guilty of an assault with intent to murder.” Thereupon they “pleaded the further plea of former conviction,” which issue was tried, and they were convicted of an assault and battery.

LutheR R. Smith, Judge of Seventh Judicial Circuit, on habeas corpus by a father for the custody of his children, who had been apprenticed by the judge of probate.

APPLICATION to this court for a writ of habeas corpus, the same haying been denied by Hon, N. S,. GRAHAM. Held: that a fine of $3000.00 imposed for a contempt in violating an injunction was not affected by the discharge of the defendant under the bankrupt law. — People v. Spalding, 10 Paige, 287; affirmed in 7 Hill, 302.

<p> Action on Witness Certificate. </p> <p>1. Witness certificate a came of action. — -A witness certificate signed and issued by the clerk o£ the circuit court, being an act done in the performance of an official duty imposed by statute, is a prima facie cause of action in favor of the witness against the party to whom he has rendered the service of attendance upon the court; and the witness can maintain an action thereon immediately after it is signed and issued.</p> <p>2. Same; will sustain judgment by default without jury. — Such certificate is an instrument of writing ascertaining the plaintiff's demand, and will support a judgment by default without the intervention oí a jury.</p> <p>3. Appeal from justice’s court; cause tried de novo. — On appeal to the circuit court from a judgment rendered by a justice of the peace, the cause being triable de novo, the judgment of the circuit court should not be one of affirmance, or of reversal of that rendered by the justice of the peace; but it should be a new, independent judgment founded on the merits of the case as disclosed in that court.</p> <p>4. Same; procedendo to justice; when shouldn ot be awarded. — On appeal from a judgment rendered before a justice of the peace, the cause no longer remaining before him, and it not being contemplated that through him the judgment of the circuit court should be made effectual, it is error for the circuit court to award a procedendo to the justice, unless there exist peculiar circumstances, — “ such as were found in Derrett v. Alexander, 25 Ala. 265.”</p> <p>5 Judgment of affirmance on appeal from justice of the peace and award of procedendo; when corrected in this court. — A judgment of affirmance and the award of a procedendo by the circuit court, on appeal from a judgment rendered before a justice of the peace, in favor of the plaintiff, where it is shown that he was entitled to a judgment, is amere error of form, without injury to the defendant; and hence, on appeal by the latter, such judgment will be corrected, and, as corrected, affirmed in this court.</p>

Tried before Hon. Lutheb B. Smith. This suit was commenced by attachment by the appellee against the appellants, they beingnonrresidents of the State, and was levied by service of a writ of garnishment on W. W. Dugger, as their debtor. The complaint, as originally filed, contained only the common counts, one declaring on an account stated, one on account for goods, wares and merchandise sold, and another on account for money loaned and advanced.

George H. CRAIG, This was a statutory action in tbe nature of quo warranto, brought by Noadiab Woodruff in the name of the State, the appellee, against B-obert J. Davidson, the appellant, for the purpose of trying tbe right to tbe office of Mayor of the City of Selma, to which, as tbe complaint alleged, the appellee bad been regularly and duly elected, but which the appellant had intruded into and usurped, and then unlawfully held and exercised.

Tried before Hon. John Moore. The appellant was indicted for gaming by a grand jury organized at the November Term, 1879, of a court established by an aet of the General Assembly, entitled, “ An act to confer jurisdiction upon the probate judge of Perry county, concurrent with the Circuit Court, with authority to hold court at Uniontown, Alabama,” approved February 3,1879 (Pamph. Acts, 1878-9 p. 231).

<p>Action on Bond executed by Keeper of a Ferry, under the Statute.</p> <p>1. Claim, for damages against keeper of a ferry and, sureties on his bond-, passes to an assignee in bankruptcy. — A claim for damages resulting- from negligence in the conduct of a ferry, against the keeper of the ferry and sureties.on a bond executed by him under the statute (Code of 1876, §1680), is a provable debt against the estate of a bankrupt, and constitutes a part of the assets of the bankrupt’s estate, which vest in the as-signee.</p> <p>2. _ Same; may be claimed and allowed to the bankrupt as exempt. — Such a claim may be claimed and allowed as an exemption to the bankrupt, under the statute of this State, exempting a thousand dollars worth of personal property.</p> <p>3. Exemption in favor of bankrupt; claim of, must be allowedby assignee to revest property in bankrupt. — Merely claiming an exemption in personal property, with a selection of the articles claimed, by the bankrupt, is not sufficient to- revest property in the bankrupt, or to fix its status as never having passed out of him. To accomplish this, the claim must be allowed, or acquiesced in by the assignee.</p>

Tried before the Hon. J. B. FeagiN. In the matter of the final settlement of the account of Fleming Law, as the administrator of N. O. Glover, deceased, and distribution of the assets in his hands belonging to said estate among the intestate’s heirs and distributees.

Tried before Hon. H. W. Oaeeey. In the matter of the final settlement and distribution of the estate of J onathon Mealing, deceased, by J oseph L. Hin-son, the administrator de bonis non, with the will annexed.

Heard before Hon. Charles Turner. In March, 1872, Adam C. Baird, Mrs. M. A. Biyfche, wife of William Blythe, and S-.

Tried before Hon. H. D. Clayton. This was an action of trover, brought by the appellee against the appellant for the recovery of damages for the alleged conversion of two bales of cotton.

Circuit Court. Tried before Hon. Wm. S. Mudd. This action was brought by the appellants against David M. Scott and John W. McConnell, “late copartners in trade, under the firm name and style of D. M. Scott & Co.,” and was commenced on the 9th April, 1877. The cause of action declared on is “ a certain order or draft, dated and drawn December 30th, 1876, by D. M. Scott, Agt. on, and accepted by said defendants, D. M. Scott & Co. on the same day, and payable to Messrs.

Tried before Hon. John Henderson. This was a statutory real action in the nature of ejectment brought by John T. Glenn against A. T. Wilson and L. M. Wilson for the recovery of a quarter section of land, and was commenced on the 25th October, 1876. The defendants pleaded hot guilty, and upon the issue thus made the cause was tried.

Heard before Hon. A. W. Dillaito. The bill in this cause was filed on 25th of March, 1880, by Rufus 3L Thompson and Jerome C. Thompson, judgment creditors of Marcus Parker, against him and Sarah E. Parker, his wife, and Samuel H. Sprott, as trustee under two deeds executed by Marcus Parker to him for the benefit of Sarah E. Parker, bearing date, and averred in the bill to have been executed, one on the 7th of February, 1868, and the other on the 5th of March, 1869, for the…

<p>Appeal from Perry Chancery Court.</p> <p>Heard before Hon. Charles Turner:</p> <p>The facts are stated in the opinion.</p>

Heard before Hon. CHARLES TuuneR. The bill in this cause was filed, October 80th, 1879, by Sarah S. Robbins and others, the appellants, against W. H. Webb, the appellee ; and its material averments may be summarized as follows: In February, 1859, Robert H. Gregg was seized and possessed of a tract of land lying on the Alabama river, in Wilcox county, on which he had a public landing, known as the “Lower Peach Tree Landing,” and ■was engaged in the warehouse business,…

Tried before Hon. John K. Heney. This suit was commenced by attachment on 24th September, 1878, and was brought by Dabney Palmer, as the administrator of the estate of E. M. Pinch, deceased, the appellant, against the appellees, for the recovery of rents of laud owned by bis intestate, under a contract made with the appellees during the intestate’s lifetime, but which became doe and payable after his death.

Heard before Thos. W. Coleman, Esquire, special chancellor. The bill in this cause was filed on 26th March, 1874, by William O. Winston, as the administrator of the estate of Turner Reavis,■ deceased, against Susan L. Lee and her husband, to foreclose a mortgage executed by the defendants on 12th October, 1866, to Rsavis & McOonnico, partners engaged in the practice of the law, conveying lands belonging to Mrs. Lee’s statutory separate estate, to secure two notes signed by…

Tried before Hon. P. GS-. Wood. To the statement of facts contained in the' opinion it may be added, that it was shown on tbe trial of tbe petition in the court below, that tbe petitioner bad no knowledge or information of tbe existence of tbe policy of insurance, which is set up as a defense to tbe petition, until after ber husband’s death, when the policy and tbe receipts of tbe insurance company for the annual premiums thereon were found among his papers; that sbe never…

Tried before Hon. Geo. H. Craig. This was an action of assumpsit, brought by James McIntyre, the appellee, against Alexander M. Steed and John L. Seay, the appellants, for work and labor done by the appellee at tiie instance and request of the appellants. On the trial it was disclosed, that the appellee was employed jointly by the aopellants, and E. A. Crandall and Samuel M. McOollough.

Tried before Hon. Geo. H. Cbaig. The appellee brought this action against the appellant, to recover damages for the alleged conversion of certain lumber which was used in the construction of three houses on certain lands belonging to a decedent’s estate, on which the appellant was, and had been for several years “ the manager and copartner in planting.” The complaint contains three counts, two in trover and- one in case.

In tbe matter of the insolvent estate of Turner Eeavis, deceased, on the trial of a contest as to the validity of a claim filed agamst said estate, in the name of “ J. A. Mooring, trustee.” The record does not show when said Reavis died, nor when his estate was declared insolvent. The claim was filed on the 17th March, 1874, and was thus described in its entry on the book of claims in the office of the probate judge : “Date — January 13, 14, 15,1868.

Heard before the Hon. CHARLES Turner. The bill in this case was filed on the 1st December,. 1873, by Joel W. Jones individually, and as one of the executors of the last will and testament of John A. Winston, deceased, and his co-executors, E. W. Pettus and William O. Winston, against N. B. Glover; and sought to set aside on the ground of fraud, and as a cloud on the title asserted by the complainants, a conveyance under which the defendant claimed and held possession of a…

Heard before the Hon. A. W. Hillard. This.was a bill of review for error apparent, filed by leave of the court, on the 12th June, 1878, by William G. Jones and William H. Hunn, who, as trustee in a deed of trust for the benefit of creditors executed by one James Crawford, were defendants in the cause in which the decree was rendered now sought to be reviewed and set aside.

From the Circuit Court of Perry. Tried before the Hon. George H. Craig.

Tried before the Hon. Ltjthee B, Smith. This action was brought by Mrs. Ann M. Jeffries, the wife of Walter B. Jeffries, against D. J. Castleman, to recover the sum of $701. lS^'due by account,” as the complaint alleged, “for money had'and received by Jeffries & Castleman (a firm composed of A. S. Jeffries and the said D. J. Castleman), belonging to the corpus of the statutory separate estate of the said Ann M. Jeffries, and received by the said Jeffries & Castleman on the…

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 18th March, 1879, by Jonathan Bliss (suing for the use of E. P. Snedecor) and others, against Zoromba W. Woodruff and others, for the final settlement of a trust; said Woodruff being the trustee, and the complainants, with some of the defendants, being the parties beneficially interested.

Heard before the Hon. N. S. GeahaM. The bill in this case was filed on the 27th July, 1877, by John F. Yarbrough, the superintendent of the public schools of Lee county, against the rival claimants of certain school moneys in his hands, amounting to $540; asking that they be compelled to interplead, asserting their respective rights, and that the court decide who was entitled to the money.

Heard before the Hon. H. Austill. The bill in this case was filed on the 15th January, 1877, by Warren & Burch as partners, doing business in Montgomery as merchants under that name, against Thomas Jones and his wife, Mrs. Hattie B. Jones ; and sought to subject to the satisfaction of a judgment, which, the com plain ants had recovered against said Thomas Jones, a tract of laud which he had conveyed to and for the-benefit of his wife, and to set aside the conveyances as…

Tried before the Hon. Luther R. Smith. This action was brought by Willis Gr. Clark, against the partners composing the firm of S. T. Taylor & Co., and was commenced on the 26th March, 1878. The action was founded on an account for goods sold and delivered to the defendants, daring the years 1876 and 1877, by the firm of W. F. Wins-lett & Co., which was composed of the plaintiff and said W. F. • Winslett; and the plaintiff sued as tbe successor and assignee of the partnership.

Heard before the Hon. N. S. Graham. The original bill in this case was filed 3d‘December, 1877, by George E. Seaman and W. T. & S. H. McWilliams (partners), as creditors at large of A. J. Nolen, on behalf of themselves and all other creditors who might come in, make themselves parties and contribute to the cost of the suit, against the said A. J. Nolen, Mrs. Mary E. Nolen, bis wife, A. J. Thomas, and R. C. Sandlin ; and sought to set aside, on the ground of fraud, a…

EeoM the Circuit Court of Dallas. Tried before the Hon. Geo. H. Chato.

FROM tbe Circuit Court of Madison. Tried before the Hon. Henry C. Speake. The indictment in this case charged that the defendant, Oliver Cross, “unlawfully and with malice aforethought killed David Fearn, by shooting him with a gun.” The defendant pleaded not guilty, and issue was joined on that plea. The bill of exceptions purports to set out all the evidence adduced on the trial, but it is not necessary to state it at length.

Ebom tbe Circuit Court of Dallas. Tried before the Hon. John Moobe.

EkoM the Circuit Court of Russell. Tried before the Hon. H. D. Clayton.

Fbom the Circuit Court of Bussell. Tried before the Hou. H. D. Clayton.

From the Circuit Court of Limestone. Tried before the Hon. H. C. Speaee. Tbe prisoner in this case, Daniel Eeynolds, was indicted for tlie murder of Charles Bobinson, “ by shooting him with a pistol;” was duly arraigned at the May term, 1881, of said Circuit Court, and tried on issue joined on the plea of not guilty; was convicted of manslaughter, and sentenced to im- . prisonment in the penitentiary for the term of five years.

From the County Court of Madison. Tried before the Hon. William; RichakdsoN. The indictment in this ease charged, in the general form prescribed by the statute (Code, p. 994, No. 27), that the defendant played at a game of cards at one of the prohibited places.

<p> Indictment for Gaming. </p> <p>1. Criminal jurisdiction of justice of the peace in Madison, and proceedings before him. — By special statute (Sess. Acts 1876-7, p. 197), justices of the peace in Madison, and other counties named, are clothed with original jurisdiction, concurrent with the Circuit Court, of all misdemeanors committed in the county; hut all proceedings under the statute, in the exercise of this enlarged jurisdiction, are required to conform to and be governed by the general statutory provisions regulating criminal proceedings before justices of the peace, as embodied in the Code; and the initiatory step in the proceedings, by which the jurisdiction is called into exercise, is a complaint on oath, charging a person named with the commission of a specified offense.</p> <p>2. Same ; judgment by confession without complaint, not bar to prosecution. — A judgment rendered by a justice of the peace, clothed by special statute with original jurisdiction of all misdemeanors committed in the county,- on the voluntary appearance and confession of a person against whom no charge or complaint has been made, is a nullity, and is no bar to a subsequent prosecution by indictment for the same offense.</p>

FROM the Circuit Court of Chilton. Tried before the Hon. James E. Cobb.

Ebom the Circuit Court of Monroe. Tried before the Hon. H. T. Toulmin.

Feom; the County Court of Madison. Tried before the Hon. William Richardson.

FROM the County Court of Madison. Tried before the Hon. William.

Fkom the Circuit Court of Marshall. Tried before the Hon. Leroy F. Box. The indictment in this case was found at the October term of said court, 1881, and charged the defendant with carrying concealed weapons.

<p> Indictment for Assault. </p> <p>1. Former acquittal, or conviction; how pleaded. — A former acquittal or conviction must be specially pleaded, and the record of it is not admissible under the plea of not guilty.</p>

Fkom the Circuit Court of Chilton. Tried before the Hon. James E. Cobb. The indictment in this case charged that the defendant, Alex.

Fbom the Circuit Court of Wilcox. Tried before tbe Hon. JOHN Moose.

From the Circuit Court of Chilton. , Tried before the Hon. James E. Cobb. The bill of exceptions in this case states that, after the evidence was closed, the defendant asked the court, in writing, to charge the jury, “that unless they find from the evidence, beyond a reasonable doubt, that the defendant used the exact words charged in the indictment, they must find the defendant not guilty.” The court refused this charge, and the defendant excepted to its refusal.

Tried before Hon. H. D. Clayton. R. T. Higgius, “as receiver of S. A. & D, Williams,”'the appellee, having obtained a judgment against Thomas D. Hendricks and P. ft.

Tried before Hon. John P. Hubbard. This was an action of trover brought by tbe appellee against the appellants for the conversion of one bale of cotton. On the trial the appellee proved, and offered in evidence a mortgage executed by one Adams, on lOtb January, 1880, conveying “ my entire crop of corn cotton seed fodder peas potatoes and cane that I may make the present year on my place,” without tbe use of any marks of punctuation.

Tried before Hon. O. J. Semhes. At the February Term, 1882, of said court, the grand jury returned an indictment against the defendant, charging, that, before the finding thereof, she, “ on her examination as a witness duly sworn on the trial of one Harmon Rainey in the City Court of Mobile, of said county, under an indictment for carrying a concealed weapon, to-wit: a pistol, which said court had authority to administer such oath, falsely swore that she did not say on the…

Tried before Hon. James E. Cobb. This was an action on the case, brought by the appellant against the appellees, for the purpose of recovering damages for the alleged conversion by the appellees of one bale of cotton, a part of a crop on which the appellant had a lien for advances, of which lien the appellees are charged with notice. The appellees pleaded not guilty, and on this plea the cause was tried.

<p> Indictment for Retailing laithout a License. </p> <p>1. Retailinc) liquors; when license not required under local statute. — ■ Section 9 of the act incorporating the town of Springville in St. Clair county (Pamph. Acts, 1872-3, p. 376,), prohibits the sale of spirituous, vinous or malt liquors within the corporate limits of the town, hut contains a proviso that the section shall not be construed so as to prevent any practising physician or druggist selling such liquors for medical or sacramental purposes. Held, that practising physicians and druggists selling such liquors in said town, in good faith for the purposes' specified in the proviso, are not required to take out license therefor under the general law.</p>

Tried before Hon. John P. Hubbard. This was an action of unlawful detainer brought by Mary W. Thompson, the appellee, a married woman, against A. L. C. Hurst, the appellant, for the recovery of the possession of certain lands described in the complaint. The cause was brought to the Circuit Court by appeal from the judgment of a justice of the peace, and was there tried de novo.

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

Tried before Hon. H. D. Clayton. On the 13tb. of August, 1880, J. E. Eousseau, the appellee, commenced suit in said court against Samuel Shiver as the executor of the last will and testament of Jacob Shiver, deceased, the appellant, on a judgment alleged to have been recovered against bim as such executor at the spring term, 1866, of said court; and the minute entry of the judgment is set out in the complaint, in which it is ordered, that the judgment be certified to the…

Tried before Hon. T. M. ArriNGTON. At the February Term, 188 L, of said court, tbe appellant was indicted for burglary, and at a subsequent- term be was tried and convicted.

Tried before Hon. James E. Cobb. At the Spring Term, 1882, of said court, the appellants, Charles Griffin and Robert Young, were indicted for the murder of William McOau, and at the same term they were tried, convicted of murder in the first degree, and, in accord-anee with the verdict of the jury, were sentenced to suffer death.

<p>Appeal from Crenshaw Circuit Court.</p> <p>Tried before Hon. James E. Cobb.</p> <p>At the Spring term, 1879, of said court the appellant and one Bose Bedman were jointly indicted for the murder of William B. Colquitt. At a subsequent term of tbe court a severance was granted the State, Bedman having been pronounced insane by a jury empannelled under the order of tbe court, to try that issue; and the appellant was tried alone, was convicted of murder in the first degree, and was sentenced to the penitentiary for life. On an appeal to this court, that sentence was reversed and the cause remanded. Marler v. The State, 67 Ala. 55. After the cause was remanded, a second trial was had, and he was again convicted of murder in the first degree and sentenced to suffer the same punishment. On this trial, as shown by the bill of exceptions, tbe State examined Bose Bedman as a witness’ Before he commenced testifying the court, in the hearing of the jury, stated to him, that he could testify or not, as he chose, that to testify would not be any advantage to him, when he was put on his trial in the future ; that the solicitor had stated to the court, that he would not use the testimony given by him on the present trial against him ; thal the rule was, tbat, when a witness testified after being cautioned that lie could do so or not, and his .testimony could be used against him as a confession ; tbat tbe judge then presiding would not preside at Ms trial, and tbe court could not say, whether the announcement made by tbe solicitor would be regarded by the judge before whorn be was tried, but presumed that it would. Tbe appellant “ objected to the court stating to tbe witness what is above set forth as to what the court that tried him would probably do, aud that the solicitor had given his assurance ” that he would not use the witness’ testimony against him, and reserved an exception thereto. The witness then testified, that on the night of the 16th of August, 1876, he killed the deceased, and that he was hired to do so by the appellant; that the appellant told witness that he would tell his sister to leave the door and window of her room open on that night, so that witness, after he had killed the deceased, could go to appellant’s sister, and she could assist him by giving him rations, until appellant could get back from his uncle’s, whither he said he would go, so that he could prove himself innocent, in the event he was charged with the crime ; and that when he returned he would furnish witness with.what provisions he needed until witness could leave the country. The witness further testified, that after he killed the deceased, he went directly to the house of the appellant’s sister, and found the door and window of her room open. The appellant moved to exclude so much of the witness’ testimony as related to what the witness did after the killing, but the court overruled bis motion and he excepted. On cross-examination this witness' was asked by appellant, whether he was not making his arrangements to leave the country under a suspicion of sheep-stealing, at the time the deceased, was killed, but on objection made by the State, the court refused to allow the witness to answer the question, and the appellant excepted. The State also examined as witnesses the appellant’s sister, Catherine, and Mrs. Marler, his mother, both of whom testified, against the appellant’s objection, that Bose Bedman came to Catherine’s room on the night the deceased was killed, and told them that he had killed him ; and the appellant separately excepted.</p> <p>The father of Bose Bedman was also examined on behalf of the State, who testified, that a few months before the deceased was killed, the appellant told him, that he was tired of his wile, that she had not treated him right, and he was going to get a divorce from her, and he wanted witness to give him his daughter ; that witness told him no man in his condition could get his daughter. After showing on cross-examination of this witness, that the appellant had never “courted” his daughter, and “never said anything to him afterwards about it,” the appellant moved to exclude from the jury all of said witness’ testimony, but the court overruled the motion and the appellant excepted. One Gilchrist; was also examined on behalf of the State, who testified, that, shortly before the deceased was killed, he heard the appellant say, -that the deceased was trying to attend to his business, and that if he did not quit it, he would make him; and that on another occasion appellant came to witness’ house and said he was going to try and get a divorce from his wife, and wanted his advice about it; that he told appellant to let the matter alone, that his wife was a good woman, to which the appellant replied, that she had not done right; that witness again told him to let the matter alone, that appellant “ would fool along until they got him in jail,” to which he replied “ who, they wouldn’t, bub that he would get some of them in jail.” The appellant moved to exclude the testimony of this witness “ as to all of the latter conversation ” with him, but the court overruled his motion, and he excepted.</p> <p>The State proved and offered to read in evidence a bill filed in the Chancery Court of Coffee county by the appellant against his wife, seeking a divorce, and the wife’s answer, and a set of interrogatories filed by the wife to the deceased in that cause, and also the decree of that court dismissing appellant’s bill. The bill, answer and interrogatories were filed before the deceased was killed, but the decree was rendered afterwards. These papers were offered in connection with an agreement of counsel executed several terms prior to* the trial, that the papers should “ be used as evidence on the trial” of this cause “ the same as a certified transcript could be used in this ease; ” and also for the sole purpose of showing that said suit was pending at the time the deceased was killed, and that the deceased ivas a witness for the wife of appellant. The appellant separately objected to the introduction of these papers, but the court overruled his objections, and allowed the State to read the papers in evidence, and he separately excepted. It was also shown by the State, that a commission had been issued on the interrogatories to the' deceased in the divoree case, and had been placed in the hands of a commissioner, who had agreed with the appellant upon the time and place of taking the deceased’s deposition, the time agreed on being the week following the.night the homicide was committed.</p> <p>Other evidence was introduced, and other exceptions reserved by the appellant to the rulings of the court on the admissibility of evidence, and to the refusal of- the court to give to the jury charges requested by him; but as they were not passed on by this court, it is unnecessary to state them. In this court the appellant insisted that, the grand jury which returned the indictment was illegally organized; but the point made by him is sufficiently stated in the opinion.</p>

Heard before Hon. Jhq. A. EosteR. The bill in this cause was filed on July 18, 1879, by Mrs. Hattie L. Sampey against her husband, George G. Sampey, and J. W. Sampey and Thomas W. Sims, and its material averments may be stated as follows :.

Heard before Hon. Jno. A. Fostee. The bill in this cause was filed on 20tb September, 1880, by Emma C. Lipscomb against Benjamin DeLemos, seeking dower in certain lands, as the widow of Natban L. Lipscomb, who died in May, 1879.

This was a petition to this court for a writ of mandamus by Mary H. Dillard, as tbe executrix of the last will and testament of P. W. Dillard, deceased, seeking to compel Hon. H. D. Clayton, as Judge of tbe Third Judicial Circuit, to strike from the docket of tbe Circuit Court of Lee county, a cause which bad been brought to that court, wherein the petitioner, as such executrix, was plaintiff, and one Gatsy Nice was defendant.

Heard before Jm. A. EosteR. In 1865, Monroe P. Watts, James A. Branch and J. H. Bostwick formed a partnership; and, as partners, engaged in a general commission business in the city of Mobile, in this State, until the 17th March, 1866, when the partnership was dissolved, by mutual consent; and . by mutual agreement, Monroe P. Watts was alone authorized to close and wind up the unsettled business of the firm.

Tried before Hon. Leroy E. Box. This was an action of trespass quare clausum fregit brought by the appellee against the appellant; was commenced on 4th February, 1874, and w,as tried on the 21st January, 1881.