Volume 69 — Alabama Reports

Tried before ITon. Leroy P. Pox. At the Spring Term, 1881, of said court, Philip Ellerson, the defendant, was indicted, tried and convicted, under section 4353 of the Code of 1876, for selling or removing personal property, on which one Ulysses Lewis is alleged to have had a lien or claim, the indictment following the form prescribed by the Code, and alleging the value of the property to be twenty dollars. , The defendant demurred to the indictment, and his ■demurrer having…

Tried before Hon. John P. Hubbard. At the Spring Term, 1882, of said court, Bill Creen, the appellee, was indicted and tried for the murder of John Tanner, and was convicted of murder in the second degree.

Tried before Hon. John Moore. At tbe Spring Term, 18*1, of said court, tbe grand jury returned an indictment against tbe appellant, containing two counts, charging in tbe one, that be “ did sell vinous or spirituous liquors without a license and contrary to law,” and in the other, that be “did sell, give away or otherwise dispose of vinous, spirituous or malt liquors or intoxicating bitters or beverages within five miles of Rehoboth church, in Crenshaw county.” The defendant…

Tried before Hon Price Williams, Jr. In the matter of the final settlement of the accounts of Edward T. Toomer and John C. Chamberlain, as the executors of the last will and testament of B. C. Gallup, deceased. The facts are stated in the opinion. cited 43 Md. R. 307; 78 Penn. St. 40 ; 50 Miss. 15; 13 New ITamp. 521; Code of 1876, § 2216. cited 2 Jarman on Wills, 690; Continental Life Ins.

Tried before Hon. II. T. Toulmin. In this cause the appellants sued out an attachment against 'Hiram W. Yan Hagen, on 2d May, 1879, which was levied by ■ service of a writ of garnishment on the Alabama G-old Life Insurance Company, a corporation, as debtor to the said Yan Hagen.

Heard before Hon. IT. Austill. Tbe bill in this case was filed by Heyer Bros., “ on behalf of themselves and such other creditors standing in the same position. as complainants,” against Ernest Bromberg and Charles LBromberg, late partners trading under the firm name of Bromberg Bros., and against Frederick Bromberg, seeking, in one aspect of the bill, to have set aside as fraudulent and void a bill, of sale of a stock of goods made by Bromberg Bros, to Frederick Bromberg,…

(Name of the'presiding judge not disclosed by the record.) Charles Corege died iu Mobile, in this State, in October, 1880, leaving two children, both of whom were then under twelve years of age, and whom their mother, the wife of Corege, had abandoned in their lifetime. The proceedings in this cause originated in an application made by Joseph Desribes, the appellant, to the Probate Court of Mobile County, to be appointed the guardian of said children.

<p> Motion to amend Bill of Exceptions. </p> <p>1. Bill of exceptions ; when can not be altered or modified. — A bill of exceptions having been signed by the presiding judge, becomes a part of the record in the cause to which it appertains, .and can not subsequently be changed by oral evidence, unless the proposed change or modification is made prior to adjournment, while the matter is in fieri, or within the time agreed on by counsel in writing, authorizing such bill to be signed, pursuant to § 3113 of the Code of 1876.</p> <p>2. Bill of exceptions ; proper practice in obtaining. — The proper practice for a party desiring a' true bill of exceptions to pursue, is for him to prepare a correct bill, in which the point or decision sought to be reviewed and the facts of the case are truly stated, and to tender it, within the proper time, to the presiding judge for his signature, requesting him to sign or refuse to sign it as prepared. If he fail or refuse, an application can then be made to this court to establish the bill of exceptions upon such evidence as may be deemed satisfactory.</p>

Heard before Hon. Jno. A. Foster. The bill in this cause was filed by Eliza A. May against W. W. Wilkinson, to enforce a vendor’s lien on land for an unpaid balance of purchase money.

Heard before Hon. Jno. Á. Foster. The bill in this cause was filed by William P. Yanderveer against Robert Y. Ware individually and as the executor of the last will and testament of Robert J. Ware, deceased, and against the widow and children of the testator, for the purpose oí subjecting lands devised by the testator to the defendants, and the rents and profits thereof, to the satisfaction of a judgment which the complainant had paid as the surety of the said Robert Y. Ware…

Heard before Hon John A. Foster. The bill in this cause was filed by Lise Dorrance, L. Brewer •& Co., and others, creditors of Marsena A. Parker, against the said Parker, and John C. Chamberlain, individually, and as trustee of Carrie M. Parker and John B. Chamberlain, for the purpose of having a sale and transfer of goods, wares and merchandise and dioses in action made by Parker to John C. Chamberlain, as such trustee, declared fraudulent and Amid, and for a discovery of…

Heard before Hon. Jno. A. Foster. The bill in this cause was filed by Mary Lehman and her husband, Abraham Lehman, against Moritz Levy, for the purpose of having a deed, absolute on its face, declared a mortgage securing two notes made by them to Levy, each for $200.00, and for a redemption of the real estate conveyed by the deed.

Heard before Hon. H. Austill. ■ The bill of exchange secured by the. mortgage, for the foreclosure of which this suit was brought, was, at the time it was •drawn… Held: that the bill of exchange secured by the mortgage was founded on a gambling consideration, and was void. He, therefore, caused a decree to be entered dismissing the bill; and this decree is here assigned as error. The purpose of the bill and the case made by the record are sufficiently stated in the opinion.

Tried before Hon. John P. Hubbard. The appellants, on 20th September, 1880, brought this suit against the appellees.

Tried before Hon. H. T. Toulmin. This was a petition by A. &' B. Moog against M. P. Levy & Co. for a supersedeas, seeking to quash an execution issued against the petitioners as sureties, and one Theodore Weis, as principal, on a forthcoming bond, which had been executed by them under the provisions of section .2836 of the Code, and which had been returned forfeited by the sheriff. The material facts are stated in the opinion.

Heard before Hon. John A. Foster. On the 24th April, 1866, James D. McCall, being indebted to Georgia A. Reese, a minor, executed and delivered to her guardian, as… Held: if said decree had not been carried into execution. — 2 Dan. Ch. PI. & Pr. p. 1580. (2). A bill of review is revisory and corrective in its nature and effects; and there are many points of analogy between such a bill and an appeal. — Lube’s Eq. PI. by Wheeler, pp. 177, 178-9, 180-1; and note (1) on p. 177.

.Appeal from Montgomery Chancery Court. Heard before Hon. H. Austill. The facts touching the points decided by the court are sufficiently stated in the opinion. (No briefs came to the hands of the reporter.)

Clair Circuit” Court. Tried before Hon. Leroy E. Box. The appellee having obtained a judgment against Wesley Daffron, the husband of the appellant, before a justice of the peace, caused an execution to be issued thereon, which was levied on a “ yoke of oxen,” as the property of the defendant in execution.

Heard before John M. McKleroy, Esquire, acting as Special Chancellor.

Heard before Hon. Jno. A. Foster. The bill in this cause was filed by the appellee, a married woman, by her next friend, against the appellant, her husband, for the purpose of obtaining a divorce from the bonds of matrimony under section 2687 of the Code of 1876. The facts are sufficiently stated in the opinion. (No briefs came to the hands of the reporter.)

Heard before Hon. II. Austill. Tire bill in this cause was filed on 6th December, 1870, by Mary E. Winter, a married woman, by her next friend, against Merrick & Sons and the Montgomery Cas Light Company, a body corporate, and sought, by an equitable attachment, to condemn a debt due from said corporation to Merrick & Sons, to the satisfaction of an alleged -equitable demand which was held by complainant against Merrick & Sons.

Tried before Hon. L. F. Box. This was a suit by Bolivar H. Cooke against Oliver 1. Hall, Alexander H. Mackey and Luther C. Hall, on an account for goods, wares and merchandise sold and delivered to the defendants by the plaintiff, and was tried on the plea of the general issue. On the trial the depositions of the plaintiff and another witness examined on his behalf, taken upon interrogatories, were offered in evidence by the plaintiff.

Tried before lion. James E. Cobb. This action was brought by A. M. Hundley against W. P. Yonge and his wife to enforce a mechanic’s lien for work and labor done by the plaintiff in building a mill on the lands of Mi’S. Yonge. A demurrer to the complaint having been sustained by the court, the plaintiff filed an amended complaint, to which the defendants interposed a demurrer, which was also sustained by the court.

<p>1. Appeal from interlocutory rulings of circuit court; can not. be taken without consent of opposite party.- — Section 3917 of the Code of 187C authorizes appeals from the interlocutory rulings of the circuit court therein enumerated, to be prosecuted only on the condition precedent that “the consent of the opposite party, or 'his attorney is obtained to its being taken.” An appeal taken from such rulings without the consent of the opposite party or his attorney, must be dismissed .for want of jurisdiction in this court.</p>

Heard before Hon. N. S. Graham. The bill in this cause „ was filed by the appellant against-George W. Smith, George M. Gamble and another, the appellees, for the purpose of enforcing a vendor’s lien on certain lands, which Gamble sold to Smith for ten bales of cotton, for the delivery of which he took Smith’s two written obligations,, one for the delivery of five bales on 25th December, 1869, and the other for the delivery of five bales on 25th December, 1870.

Tried before Hon. James E. Cobb. This action was brought by the appellees against the appellant, and was founded on a promissory note, executed by the latter to the former.

Heard before Hon. Jno. A. Foster. The facts are stated in the opinion. (1.) It was legal for Moog to compromise his civil liability as surety for Hubbard, provided he was not intentionally instrumental in stopping the proceedings set on foot by the bank, and provided such stoppage formed no part of the compromise.

Tried before lion. John P. Hubbard. This action was commenced on the 1st of January, 1881, and was brought by A. F. Childers against J. M. Ford and the City of Greenville, under the statute, to enforce an alleged lien on a certain building in said city, for the construction of which, and for the materials to be used therein, the city had contracted with Ford, for the value of materials which the plaintiff had furnished Ford to be used, and which had been used, in the…

Tried' before Hon. W. L. Whitlock. This was an action of assumpsit by Asa Weems, tlie appellee, against Joel Weems, the appellant. The complaint contains three counts, one on an account stated, one *bn an account for money had and received, and one for goods and chattels sold. The case made by the record is stated in the opinion of the ■court.

Tried before Hon. H. D. Clayton. This was an action by James F. Letcher, the appellee, against The Central Railroad and Banking Company of Georgia and The Georgia Railroad and Banking Company, corporations owning and operating a railroad in this State, the appellants, for the purpose of recovering damages for personal injuries sustained by the appellee in jumping from the train of the appellants-while it was in motion.

Tried before Hon. H. T. Toulmin. This suit was brought by the Schomacker Manufacturing Company, a corporation existing under the laws of the State of Pennsylvania, and having its principal place of business in the city of Philadelphia, against Joel II. Snow, for the purpose of -recovering the price of two pianos manufactured by the plaintiff and by it sold to the defendant. The pleadings and facts are sufficiently stated in the opinion.

Tried before Hon. John P. Hubbard. This was an action of unlawful detainer, commenced before a justice of the peace by Abram N. Glenn against Wilson Beck. The complaint was filed and notice issued on 7th January, 1880, the notice requiring the defendant to appear on 13th of same month. On that day, the parties appearing, the cause was continued, on plaintiff’s motion, until 21st January, and it was then again continued until the day following, when the cause, was tried.

<p> Rill in Equity l)y Judgment Co-editor to Redeem. </p> <p>1. Decrees against non-resident defer dants; when not absolute. — A decree in equity against a non-resident defendant, without personal service, who •does not appear, is not absolute under the statute (Code of 1876, § 3830), until eighteen months from the rendition thereof; and within that period, the chancellor has the power, and it is his duty, on the filing of a petition by such defendant showing sufficient cause therefor, to open the decree, and hear the cause upon the merits.</p> <p>2. Same ; when notice of the petition essential. — Where a non-resident defendant files Ms petition to open a decree rendered against him after such decree has been executed, and all proceedings in the cause have been terminated, and the parties have been dismissed the court, notice of the petition must be given to the parties having rights and interests, which would be affected-by setting aside the decree and reopening the litigation, although the statute is süent as to such notice.</p> <p>3. Same; not set aside as matter of absolute right and of course. — Under the present statute, a decree against a non-resident defendant, without personal service, should not be opened as a matter of absolute right and of course, on the presentation of a petition, but only upon sufficient •cause shown. It should he shown that because the party had not actual notice of the suit and the opportunity to defend, an unjust decree had been pronounced against him; and if this is not shown, hut it is apparent froni the averments of the petition, that the decree is right and just in itself, and such an one as the court, on another hearing, would be bound to render, the decree should not be opened or set aside.</p> <p>4. Bill to redeem by judgment creditor; offer to redeem, to whom made. While the statute requires that redemption" of lands sold under a power contained in a mortgage, must be made from the purchaser or those claiming under him; yet, if the purchaser subsequently alienates the lands purchased, the mortgagor or judgment creditor seeking to redeem, must have notice, or information of facts sufficient to put him on inquiry, that the purchaser has divested himself of tire title, and who has succeeded to it, before he can be required to make the offer and tender to the alienee of the purchaser. In the absence of such notice or information, it is to-the purchaser only he can apply for redemption, and an offer to redeem and tender made to him are sufficient.</p> <p>5. Registration of deed; effect of as notice. — The registration of a deed operates as notice only of rights or claims derived from the grantor by whom the deed is executed, and not as notice of claims or rights derived from others not parties to the deed.</p> <p>6. Same. — Where a purchaser of lands at a sale under a power contained in a mortgage subsequently sold the lands, but did not execute to-his vendee any deed thereto, the latter taking a conveyance directly from the mortgagor, the registration of such conveyance does not operate as constructive notice to judgment creditors seeking to redeem the lands, of such vendee’s claim or title to the lands, and to him they are not required to apply for redemption in the absence of actual notice.</p> <p>7. Offer to redeem ; absence from the State of party to whom it should be made, dispenses with necessity therefor. — The absence of the party to whom an offer to redeem and tender should be made, dispenses with the necessity of such offer and tender before filing the bill. In such case, the statute is complied -with, -if the offer and tender are made in the bill, filed within two years.</p> <p>8. Redemption of lands; what liens or claims the party seeking, must satisfy. — While a judgment creditor, seeking to redem lands sold under a power contained in a mortgage, is bound to satisfy every lien or incumbrance or claim for which the purchaser would be entitled to hqld the lands as security, or to which a-court of equity would subject them; this embraces only liens, legal or equitable, and claims capable of enforcement, and not secret trusts, void under the statute of frauds.</p> <p>9. Deposit of tiñe deeds to lands as security, void under statute of frauds. The doctrine of tire English Court of Chancery, that a deposit of the title-deeds to lands for the security of a debt is an equitable mortgage, is in violation of the statute of frauds and can not be maintained in this State..</p>

Tried, before Hon. F. M. Walker. The petition in this cause was filed by John Bhodes, the appellee, for the purpose of establishing a record of the proceedings, orders and decrees had and entered in said court relating to the sale of lands belonging to the estate of John McBryde, deceased, by William A. Northcutt, his administrator, to Joseph Lundy and John 'G-.

Tried before Hon. W. L. Whitlock. This was an action brought by James M. Sheid, the appellee, against William Dothard and G. C. Ellis, the appellants, and was founded on a bond executed for the purpose of obtaining an attachment, which was sued out of said court by Dothard against the appellee.

Tried before Hon. John P. Hubbard. This suit was brought by W. ~W. Ringstaff against John W. Hicks, for the recovery of a tract of land described in the complaint by its survey numbers, and as being in the county of Montgomery, and State of Alabama. Before the trial, W. K. Chambers and Robert L. Knight, on their own motion, were made parties defendant, as landlords.

Tried before John Elliott, Esq., Special Judge. * This was a suit on the official bond of Elisha B. Lott, as tax collector of Mobile county, brought by the State of Alabama, against him, and Nelson W. Perry and others, his sureties on said bond, and was commenced on the 28th October, 1880. On 15th June, 1881, a demurrer to the complaint as originally filed, having been sustained, the plaintiff filed an amended complaint.

Heard before Hon. H. O. Speake. • This was a bill by the appellee, against the appellant, to enforce a vendor’s lien on certain lands for unpaid balance of purchase-money. On the hearing, a decree was rendered granting relief, and ordering a reference to the register to ascertain ■and report the balance due on such purchase-money.

<p> Action on Promissory Note. </p> <p>1. Evidence ; admissibility of. — In a suit at law on a promissory note, in which the consideration is stated, it is admissible to show by parol evidence a valuable consideration for the note, differing from that expressed therein.</p>

Tried before Hon. H. L). Clayton. At the Fall Term, 1880, of the Circuit Court of Covington County, Ann Spicer, the appellant, .and another were jointly indicted for the murder of her infant child, and on their application for a change of venue, the case was removed to the Circuit Court of Coffee County, where the defendants were tried, and the appellant was convicted of murder in the first degree, and sentenced to the penitentiary for life.

Application to tliis court for a writ of mcmdamus, to compel ILon. Held: that the failure to file the transcript for two terms after the change of venue was ordered, did not work a discontinuance of the cause. There can be no substantial reason for a different rule in a civil case.

Tried before lion. II. I). Clayton. This suit was commenced by attachment against C. S. Yarbrough & Co., a partnership, by its firm name, without stating in the affidavit, bond, writ or complaint the names of the individuals composing the firm.

Tried before Hon. John P. Hubbard. This was an action of amj/m/psit for money had and received; was brought by J. W. and B. W. Walker, the appellees, against A. Gy Tuttle, the appellant; was commenced before a justice of the peace on the 10th of January, 1881, and was taken by appeal from the judgment of the justice, to the Circuit Court, where the cause was tried de novo.

<p> BUI in Equity to enforce Vendor's Lien. </p> <p>1. Vendor’s lieu; when not retained. — At. a sale made by an executor ■of the lands belonging to his testator’s estate, for division, under a private act of the legislature, five of the legatees under the testator’s will became jointly the purchasers of a part of the lands, at a price Agreed on, payable partin cash, and balance in one and two years. They arranged the cash payment by giving the executor their several receipts in part payment of their respective legacies, and for the deferred payments they executed joint notes. Under the act the sale was reported to, and confirmed by the Chancery Court of Montgomery county. After the maturity of the notes, the purchasers having failed to pay the same, a -compromise was made between the executor and all the legatees, by which their several shares under the will were fixed at $3,000.00, and tire purchasers receipted the executor in full for their several shares, and in addition thereto, agreed to pay him, each the sum of $500.00 in settlement of their notes. Bach of the purchasers paid the executor $500.00 as agreed on, except one, a married woman; and the executor, relying on the promise of her husband, that the $500.00 to be paid by her, would be shortly paid; reported to the court that all the purchase-money for the lands had been paid; and the court thereupon ordered him to execute a deed, conveying to the purchasers the lands purchased by them, which he did. Afterwards the five purchasers divided the lands purchased by them among themselves, each being'allolted a part thereof. The $500.00 not having been paid, and the executor having, on a settlement with the estate accounted for that sum, as assets thereof collected by him, filed a bill in his individual capacity, claiming a vendor’s lien on the part of the lands allotted to the purchaser who owed him that sum for the payment thereof, and seeking to enforce the same. Held, that the facts of the case and the conduct of the complainant repel all implication, that a vendor’s lien was retained by him for the payment of said sum.</p>

Tried before lion. John P.. Hubbard. This was a motion for a summary judgment against James A. Thompson, the sheriff of said county, and the sureties on his official bond, the appellants, and was commenced by the appellee before a justice of the peace, before whom he obtained a judgment. The cause was then taken by appeal to the Circuit Court, where it was tried de novo, the trial resulting in a verdiet and judgment for the appellee.

Tried before Iíoír. James Q. Smith. This was an action for libel brought by Alex. Mohr, the appellant, who is described in the summons and the complaint as “ doing business under the firm name and style of Alex. Mohr, Agent,” against Leopold Lemle, the appellee ; and was commenced on the 22d April, 1878.

This was ah application to this court for a writ of mandamus by Ruth Sayre and others, petitioners, to compel the Circuit •Court of Montgomery county to reinstate on the docket of said •court a cause which had been pending in said court, but which had, on motion, been stricken therefrom, and in which the petitioners were plaintiffs. The facts are stated in the opinion.

Tried before Hon. John Henderson. The facts are sufficiently stated in the opinion. (The record does not disclose the name of appellee’s counsel..

Heard before Hon. John A. Foster. This was a bill in equity filed by the appellee, an attorney, seeking to establish and enforce a lien on land of his client for services rendered by him as solicitor, in successfully prosecuting-a suit in said Chancery Court, which resulted in a decree divesting the title to the land out of the respondent in that suit, and vesting it in his client.

<p> Attachment. </p> <p>1. Section 3606 of the Code construed. — Section 3606 of the Code of 1876 requiring- suits before justices of the peace to be brought in the .precinct of the defendant’s permanent residence, or in the precinct in which the debt was created, or in which the cause of action arose, is confined in its operation to suits commenced by summons, and has no reference to suits by attachment of goods, which are in their nature proceedings in revi.</p>

Heard before Hon. Jno. A. Foster. ■ The bill in this case was filed on November 23d, 1881, by L. Brewer & Co., Haralson & Co., Wollner, Iiirshberg & Co., T. Prudhomme and others, creditors of Garland M. Dees, against him, and A. O. Danner, George W. Robinson and Benjamin F. McMillan, partners trading -under the firm name of A. C. Danner & Oo., for the purpose of having a certain mortgage and deed executed by Dees to Danner & Oo. declared a general assignment.

. Tried Before Hon. John P. Hubbard. The indictment in this case charges, in substance, that the defendant entered into the dwelling house of Robert Bryant, or upon tiie cui’tilage thereof, or upon the public highway near thereto, and in the presence of Jane Bryant, a female, made use of abusive, insulting or vulgar language.

Appear from Mobile Circuit Court. The name of the presiding judge is not disclosed by the record.

Tried before Hon. IT. T. Toulmin. This was a contest of a claim of exemption lodged by-Theodore Weis with the sheriff of Monroe county, whereby he-claimed as exempt to him from levy and sale certain personal! property on which said sheriff had levied an attachment issued! out of the Circuit Court of Mobile county, on 27th December,., 1878, at the suit of M. P. Levy & Co., and against the said, Weis.

Tried before Hon. IT. T. Toulmin. This was a statutory real action in the nature of ejectment; was brought by the State, for the use of township eighteen, range three, west, against Mrs. Martha E. Conner, for the recovery of a quarter section of land situated in section sixteen of .said township and range, and was commenced on the 13th of September, 1880.

Appeal» from Russell Circuit Court. Tried before lion. il. D. Clayton. At tbe fall term, 1881, of said court, tbe appellant was indicted for tbe larceny of “six hundred and seventy-five pounds of seed cotton, of tbe value of twenty dollars, the personal property of John T). McMakinand at tbe same term be was tried and convicted therefor.

Tried before Hon. T. M. Arrington. At the February Term, 1881, of said court, the defendant was indicted for carrying a pistol concealed about his person. 'The evidence introduced on behalf of the State tended to show that the defendant, on or about the 4th day of November, 1880, did carry a pistol concealed about his person.

Appear from Lee Chancery Court. Heard before Hon. N. S. Graham.

Tried before' Hon. James E. Cobb. The indictment in this case charged that the defendant “ did sell vinous or spirituous liquors without a license and contrary to law.” The evidence on the trial disclosed that under and in pursuance of an act of the General Assembly, authorizing elections to be held in the county of Randolph and other counties therein named, for the purpose of prohibiting the sale or other ■disposition of vinous or spirituous liquors within certain limits in…

Tried before Hon John MoOre. At the fall term, 1881, of said court, the appellant was indicted for the larceny of a part of an outstanding crop of corn, alleged in one count to be the property of John Streety, and in another, to be the property of John Miller.

Tried before lion. T. M. Arrington. At the February Term, 1881, of said court, the defendant was indicted for an assault upon one Lorenzo Phillips, with the intent to murder or maim him; and the cause was tried on the jilea of not guilty. On the trial, the State examined said Phillips as a witness, who testified that “within twelve months before the indictment was found, and in Montgomery county, he was clerking in a store, when defendant came in and asked for his account.

Tried before ILon. Wm. E. Clarke. At tlie Fall Term, 1881, of said court, an indictment was found against the appellants which, after the caption, is in these words: “ The grand jury of said county charge, that before the finding of this indictment, Tony Pace, a negro, or the-descendant of a negro to the third generation inclusive, a man, and Mary Ann Cox, a white woman, did live together in a state of adultery or fornication, against the peace and dignity of the State of…

Tried before lion. T. M. Arrington. The defendant was indicted, tried and convicted for carrying a pistol concealed about his person.

Clair Circuit Court. Tried before Hon. L. E. Box. . The indictment in this cause charged that the defendant “ did sell intoxicating bitters to a person in quantities less than •forty gallons, within one mile of the court house, in the town •of Asimile, in the county of St. Clair, contrary to an act of the General Assembly of the State of Alabama, approved February 1st, 1871, and against the peace,” etc. The defendant ■demurred to the indictment, and his demurrer having been…

Tried before lion. O. J. Semmes. The defendant was convicted.under the second count in an indictment coAtanining three. That count charges, that with intent to defraud, he did falsely pretend to Edwin B. Qnattlebaum, that he resided in Mobile, on Chestnut street, between Cleveland and Morton streets, and by reason of such false pretense obtained from the said Edwin B. Quattlebaum, one sewing machine of the value of sixty dollars.

Tried before Hon. O. J. Semmtcs. The appellant was indicted for manslaughter. Evidence was introduced on the trial tending to show, that Jim Bradford, tlie deceased, a few minutes before lie was killed by the appellant, had used insulting and abusive language to the appellant’s mother in his presence. Evidence was also offered tending to show that the defendant acted in self-defense.

Tried before Hon. James E. Cobb. At the fall term, 1881, of said court, Henry Harman was indicted for carrying a pistol concealed about his person; and at a subsequent term he was tried and convicted thereof. The evidence was uncontroverted that he carried the pistol concealed about his person, as charged, but it was shown that, at the time, he was within the curtilage of his place of abode.

Tried before lion. T. M. Arrington. At the February term, 1882, of said court, an indictment in the form prescribed by the Code was found against the appellants and another, charging them with robbery. The appellants demurred to the indictment, and their demurrer having been overruled, they were tried on the plea of not guilty. The indictment and the points made by the demurrer are sufficiently set forth in the opinion.

Tried before lion. Ii. D. Clayton. This was a prosecution for an assault and battery commenced' against the appellant in the County Court of said county, and resulting in the defendant’s conviction in that court, was by Trim taken, by appeal, to thé Circuit Court, where, upon a trial Nad do novo, the defendant was again convicted.

Ai’peal from Russell Circuit Court. Tried before Hon. H. D. Clayton. At tbe fall term, 1881, of said court, John Redd, the appellant, was indicted and tried for the* murder of one Lucy Lee, and was convicted of murder in the first degree, and in accordance with the verdict of the jury, he was sentenced to be hanged.

Tried before Hon. John P. Hubbard. The petition in this-cause was filed in the name of the State of Alabama, by W. J. O’Bannon, E. T. Brewton and others,, citizens and legal voters of Escambia County, against N. R. Leigh, John Rupert and James H. Green, the probate judge,, cleric of the circuit court, and sheriff of said county, alleging that under and in pursuance of an act of the General Assembly,, approved February 18, 1881, and the order of the sheriff of said county…

Fleard before Hon. H. O. Speake. The original bill in this cause was filed on the 12th of May, 1868, by Morris K. Taylor, as the administrator de bonis' non of the estate of Byrd Brandon, deceased, and John D. Brandon, Lucy A. Houghton, and Eliza B. Seelye, heirs and legatees of Byrd Brandon, against Caroline Eobinson as the administratrix of William Eobinson, deceased, for the purpose stated in the opinion.

Heard before Hon. H. Austill. The original.bill in this cause was filed by Kate W. Sistrunk, formerly Kate Molton Ware, daughter of Robert Y. Ware, and grand-daughter of Robert J. Ware, deceased, a married woman, by her next friend and husband, Walter Sistrunk, against Asenath A. Ware and others, for the purpose of charging certain real estate devised to Asenath A. Ware, by the will of Robert J. Ware, deceased, with the payment, of a legacy bequeathed by the will to Mrs.…

Tried before ITbn. Leroy F. Box. This was an action brought by the appellee against the appellant, for damages resulting from the killing of a horse by the locomotive of appellant, and was commenced in said court on the 29tli of September, 18S0. The cause was tried on the pleas of the general issue and of the statute of limitation of six months.

Tried before Hon. Leroy F. Box. This was an attachment by W. H. Busbin, landlord, the appellant, against Jarret Ware and Charley Dickson, tenants, the appellees, and was sued out on the 25th September, 1880, for the purpose of enforcing his statutory lien for rent and advances.

<p>Appeal from Hale Probate Court.</p> <p>Tried before Hon. James M. Hobson.</p> <p>The facts are stated in the opinion.</p> <p>(No briefs came to the hands of the reporter.)</p>

Tried before Hon. J. A. Minnis. This was an action of detinue, brought, under the Code, by John A. Hill against James B. Townsend and John Wl Eu-banks, to recover a steam saw and grist mill and other personal property, and was commenced on the 20th of April, 1880. The defendants pleaded the general issue, and upon an issue thus añade the cause was tried, aaid resulted in a verdict and judgment for the defendants.

Tried before Hon. W. H. Gasque. John Cook, the appellant,-and Joachim B. Cook and Alexander Cook, the appellees, were duly appointed tlie execntorsof the last will and testament of John Cook, Sr., deceased, on. the 23d of December, 1878, by the Probate Court of Baldwin county, in this State.

Tried berore lion. John P. Hubbard. This was a statutory real action in the nature of ejectment brought by B. F. Pugh and others, the appellants, against David Youngblood, M. T. Youngblood and J. E. H. Rushing, the appellees, and was commenced on the 5th day of May, 1881.

Tried before lion. John P. Hubbard. Under the provisions of an act entitled “An act to amend section 15M of the Code of Alabama, so far as the same relates to the counties of Pike, Butler and Coffee,” approved March 1st, 1881 (Pamph Acts, 1880-1$ p. 182), no license must be granted to sell vinous, spirituous or malt liquors in the counties of Pike, Butler and Coffee, unless the applicant obtain the recommendation of a majority of both the householders and freeholders of the…

Tried before Hon. Leroy E. Box. This was an action brought by the appellant against the appellee, and was commenced on 18th June, 1880. The original complaint contained three'counts, one in trover, and the other two in case.

Heard before Hon. H. Austill. The bill in this cause was filed on tlie 7th of August, 1880, by The President, Directors and Company of the Bank of Mobile, a corporation under the laws of this State, against the Mobile and Ohio Railroad Company, a corporation created by and existing under the laws of Alabama, Mississippi and other States, and the town of Starkville, located in, and a municipal corporation under the laws of, the State of Mississippi; and the case made thereby…

Tried before ílon. O. J. Semmbs. The petition in this cause was filed on the 26th October, 1881, and, on the 28th day of the same month, an alternative writ of mandamus was issued in accordance with the prayer of the petition. An answer was filed by the respondent to the writ, to which the relator demurred. The court overruled the •demurrer, and the relator then filed a replication. The respond•ent interposed a demurrer to the replication, which was sustained by the court.

<p> LndÁcinnent for Ca/rrymg Concealed Weapon. </p> <p>1. Judgment of conviction in criminal case; when erroneous. — The sentence of a court in a criminal case, operating to deprive a citizen of his liberty, and condemning him to involuntary servitude, is irregular and erroneous, when it is in itself so vague and indefinite, that it may operate -as a pretence of authority for prolonging the term of servitude beyond that to which the law gives sanction.</p> <p>2. Same. — Where a defendant convicted for carrying a concealed weapon, is, in one part of the sentence, condemned to hard labor for the payment of the costs at the rate of forty cents ■ per day, the term not to exceed eight months, and in another part, to hard labor tor the same purpose for a term, not only in excess of eight months, but for a period more than sufficient for the payment of the costs, such sentence is inconsistent, uncertain, and erroneous, although the latter clause, being an excess of .jurisdiction, may be void.</p> <p>3. Costs and fees; distinction between. — Costs and fees are generally altogether different in their nature, the one being an allowance to a party for expenses incurred in the successful prosecution or defense of a suit, while the other is a compensation to an officer for services rendered in , the progress of a cause. But in criminal cases especially, under the statute, this distinction is not observed; but all the costs which are taxable, except compensation to witnesses, consist of the fees fixed by statute for ■services rendered by the officers of court.</p> <p>4. Amendatory statutes; their effect under the constitution. — Under our constitutional provision, every amendatory statuteis, in its nature, a re^ vision of the statute amended, taking the place of the latter.</p> <p>5. Statutes; construction of amendments to. — It is a well settled rule of statutory construction, that, in the amendment, or-revision, or in the re- • enactment of statutes, the mere change of phraseology, or the mere omission of words which may well have been deemed redundant, does not indicate a legislative intent to change the pre-existing law; and before the courts can pronounce a change in the law, such intent must be evi•dent, and language must be employed, which is not susceptible of any other just construction.</p> <p>6. Costs in criminal case ; section JflSl of the Code, as amended, construed.- — The word costs when employed in reference to criminal prosecutions under our statutes, embracing officers’ fees, the omission of these latter words from the statute amending section 4731 of the Code (Pamph. Acts 1880-81, p. 37), does not change or lessen the character of .the. lia-. bility which a defendant convicted of crime can be compelled to discharge by. hard labor.</p> <p>7. Hard labor ; for what costs may be imposed. — It is only costs incurred by the State, or to which the State, if it were liable for costs, could be subjected, for the payment of which a convict may be compelled to labor; and hence, a defendant can not be sentenced, on conviction, to hard labor for the payment of fees due to his witnesses, or of fees due to the officers •of court for services rendered to him in making his defense.</p> <p>8. Same ; may be imposed for sheriff’s fees for feeding prisoners. — The ■compensation of- the sheriff for feeding a defendant in a criminal case, while he is confined in jail to answer the indictment, is a part of the costs in the strictest sense of the term, taxable against him on conviction, and for the payment of which hard labor may be imposed.</p> <p>9. When judgment of lower court here corrected. — The defendant in this case having been sentenced to hard labor for the payment of 'costs for a longer period than is authorized by law, the judgment of the lower court is here corrected, and, as corrected, affirmed, without costs.</p>

<p>Appeal from Hale Chancery Court.</p> <p>Heard before Hon. Charles Turner.</p> <p>The facts are stated in the opinion.</p> <p>(No briefs came to the hands of the reporter.)</p>

Tried before Hon. ¥m. L. Wiiitlock. This was a statutory real action in the nature of ejectment, brought by Calvin M. Wheeler against George W. and Anna Alexander, and was commenced on the 19th… Held: and a possession through accident, or ignorance of the dividing line between adjoining proprietors, is not sufficient to constitute adverse possession.” 2.

Heard before Hon. N. S. Graham. The bill in this canse was filed on the 25th of May, 1880, by Ella Armstrong, the appellee, against George ~W. Hooper, the appellant, and sought to enforce a vendor’s lien on a lot of land situate in the City of Opelika, in this State, for an unpaid balance of purchase-money.

Tried before lion. TL T. Toulmin. . This was an action of trover brought by the appellee against the appellant, to recover damages for the alleged conversion of 252 bundles of cotton ties, and was .commenced on 8th July, 1880.

Tried before Hon. John P. Hubbard. This was an action on account brought by the appellees against T. S. Llirschfelder, under the act of January 16th, 1879, and was commenced on the 17th of February, 1880. The defendant having died after the appeal was taken, the cause was revived in this court in the name of Emanuel Hirschfelder, as the administrator of his estate.

Heard before Hon. John A. Foster. The bill in this case was filed by William Milton against •James R. Heflin and Jacob Snell, and sought the enforcement of a vendor’s lien on a tract of land which was sold by the appellee and Heflin to Snell, for the payment of the purchase-money.

Ax'pbal from Coffee Circuit Court. Tried before Hon. H. D. Clayton. This was an action in the nature of ejectment brought under -the statute by the appellants as the heirs at law of tVdlkerson Ezelle, deceased, for the recovery of a tract of land in Coffee ■county, of which their ancestor died seized and possessed.

Tried before Hon. John P. Hubbard. This suit was commenced by an attachment sued out by Frank Bedsole against James M. Davis before a- justice of the peace and made returnable to said court, to recover damages for the alleged breach of a contract, by which Davis promised to deliver to Bedsole five hales of lint cotton for the rent of land. In a complaint subsequently filed the damages are averred to be §350.00.

<p>Appeal from Etowah Circuit Court.</p> <p>Tried before Hon. Leroy F. Box.</p> <p>The facts are stated in the opinion.</p>

Tried before lion. Leroy F. Box. The appellees sued Oliver L. Hall, Alexander H. Mackey and Luther C. Hall, the appellants, in assumpsit on an account. They are not described in the complaint as partners.

Tried before Hon. Joi-in'P. Hubbard. The facts are stated in the opinion. (No briefs came to the hands of the reporter.)

' Appeal from Conecuh Circuit Court. Tried before Hon. John P. Hubbaril This was an action by M. A. Gantt, the appellee, against J. Pollock and others, the appellants; was commenced on 18th July, 1881, and was founded on a bond executed by the appellants to procure an attachment in favor of Pollock & Co. against the appellee.

Tried before Hon. John P. Hubbard. This action was brought by Samuel D. Hubbard, Jr., against W. B. Burks, George P. Burks and S. J. Rushton, and was •commenced on the 26th of February, 1879. The complaint contained three counts, the first of which was in trover for the alleged conversion by the defendants of eighteen bales of cotton; •the other two counts were in case, the averments of which it is unnecessary to set out, as the cause was tried on the first count.

Heard before Hon. H. O. Speaks. Tbe bill in this cause was filed on 8th March, 1879, by the appellants, as tbe only heirs at law of William C. Costephens, deceased, againt the appellees, to enforce a vendor’s lien for an unpaid balance of tbe purchase-money for certain lands, which William C. Costephens sold and conveyed in his lifetime. ‘ The complainants aver in their bill that “ their father, William C. Costephens, departed tliis life in Alabama some time during tbe year…

Tried before lion. W. S. Mudd. This was an action of trespass, brought by Ann M. Womack against William P. Bird, to recover damages for the alleged wrongful taking by him of certain cotton, corn and cotton seed in the complaint described, and was commenced on the 1st of April, 1869. The defendant pleaded not guilty, and on issue joined on this plea the cause was tried, arid resulted in a verdict, and judgment for the plaintiff.

Heard before Hon. N. S. Graham. The bill in this canse was filed on the 15th of July, 1881, by Samuel Spence, as the administrator of the estate of James W.. Nellam, deceased, the appellee, against James M. Griffin, S. J.. Oostley and II. W. Finney, as the administrator de bonis non of the estate of Warrenton Costley, deceased, the appellants, for the purpose stated in the opinion.

Heard before Hon. John A. Foster. Tlie bill in this cause was filed by Jason G-.

, 'Tried before Hon. ¥m. S. Mudd. This was an action on the case brought by Taylor & Co. against Mayer & Co. to recover damages for the alleged conversion by the defendants of six bales of cotton, on which the plaintiffs had an equitable mortgage, of which the defendants had notice. The complaint also contains a count in trover. The other pleadings are not set out in the record.

Tried before Hon. James E Cobb. On 31st October, 1881, J. M. and G. L. Griffin sued out two attachments against J. K. Appleby, a non-resident, which were issued by, and returnable before ¡3. P. Green, a notary public appointed by the Governor, with the jurisdiction of a justice of the peace.

Heard before Hon. IT. Austill. On the 20th July, 1869, John Lawler, at that time holding and owning ten shares of the stock of The Montgomery Mutual Building and Loan Association, a coi’poration created by a special act of the General Assembly, purchased, under the provisions of the charter of the association, an advance or loan of $2,000 on his ten shares, for which he gave his note, and executed a mortgage on real estate in the city of Montgomery securing the same, with…

Heard before Hon. N. S. Graham. The bill in this cause was filed by William Luke, the appellee, against Henry J. Kight, the appellant, to enforce the specific performance of an alleged agreement to convey lands, and to enjoin two actions at law which had been commenced by the appellant against the appellee, in the-Circnit Court of Bandolph county, one for the 'recovery of the lands in controversy, and the other for the recovery of an alleged balance due on certain promissory…

Tried before lion. John N. Franklin. The proceedings in this cause were commenced by a petition filed by M. B. Garrett, praying that a citation be issued to Sarah Garrett, as the guardian of petitioner, requiring her to appear and file her accounts and vouchers for a final settlement of her guardianship.

Tried before lion. John P. Hubbard. M. J. Bowden and J. E. Parish, the appellees, having obtained a judgment against S. A. 'Williams and H. Williams, the appellants, for two hundred dollars, for a failure on their part to enter satisfaction upon the margin of the record of a mortgage, being the penalty prescribed by section 2223 of the Code of 1876, caused an execution to be issued thereon on the 29th of November, 1880, which was levied on the respective homesteads of the…

Tried before Hon. H. D. Olayon. This was an action on the case brought by the appellee against J. E. Comer and another, the appellants, for the purpose of re- ■ covering damages for the alleged conversion by the appellants •of two bales of cotton, a part of a crop raised by one Finney, ■on which the appellee, averred he had a lien under the statute ■for advances made by him to Finney to enable him to raise the ■crop, of which lien the appellants had notice.

Tried before lion. John P. Hubbard. This was an action of detinue, under the statute, brought by the appellant against the appellee, for the recovery of two bales of cotton, and some corn; was commenced on 2d December, 1875, and was before this court, on appeal, at the December-Term, 1877, when the judgment of the court below was. reversed and the cause remanded.— Wilhinson v. Ketler, 59 Ala. 306.

Tried before Hon. James E Cobb. • This action was brought by John W. Kellarn and Robert L. ICellam, heirs at law of James W. Kellarn, deceased, against. J. F. Davis, as tenant in possession of D. G. Allen, for the recovery of a lot of land in the town of LaFayette, in Chambers-County, in this State, and was .commenced on 1st August,-1881. Prior to the trial D. G. Allen, the landlord, was, on his motion, made a party defendant.

Tried before Hon. John Moore. This was a statutory real action in the nature of ejectment, brought by Mary E. Morrison and others, the appellants, against Henry Giddens and Harrison Stevenson, for the recovery of a tract of land, and was commenced on 24th of September, 1880. Henry Giddens disclaimed all interest in the lands; but Harrison Stevenson, the appellee, defended the suit and set up, among other defenses, the statute of limitations of ten years.

Tried before Hon. War. L. Whitlock. This was an action for damages for false imprisonment, brought by Wiley F. Mitchell against J. M. ITayes, and was commenced on 22d September, 1874.

Heard before Hon. John A. Foster. The bill in this cause was filed by Thomas II. Lake against The Security Loan Association, a corporation, and Leslie E. Brooks; and the case made thereby is substantially as follows : The defendant corporation was organized in 1873, under the Code, as a building and loan association, the capital stock of which was divided into shares of $100 each.

Tried before Hon. B. B. Savage. This was an application by petition filed by Adelia Mohon, a married woman and a minor, and Alex. Molion, her husband, on the 8th of April, 1881, to vacate and set aside a sale of land made by John W. Tatum, as the guardian of the said Adelia, under the decree of said court, on the 26th day of November, 1877, on the ground that the court had no jurisdiction to decree the sale of the land, and that the sale was void.

Tried before Hon. Leroy E. Box. This was a statutory real action in the nature of ejectment,, brought by Eli B. Beard, the appellee, against Mary A, Stewart, the .appellant, and was commenced on 13 th February, 1879. The appellee claimed title under an instrument of writing, purporting to be a deed conveying to him the land in controversy, and bearing date, December 14th, 1866. The facts touching the execution of this instrument are sufficiently stated in the opinion.

Tried before lion. Leroy F. Box. This was an attachment commenced by Bobert S. Thornton, the ajipellee, against J. B. Bich and T. L. Bryant, the appellants ; was sued out for the purpose of enforcing the payment of certain advances, which, it is alleged, were made by the appellee to them, to enable them to make a crop, and was levied on part of the crop raised by them.

Heard before Hon. H. Austill. This cause was before this court at the December Term, 1878, on appeal from the decree of the Chancery Court overruling a demurrer filed by the appellant, John L. Eapier, one of the defendants in the court below, to the original bill of complaint, and on that appeal the decree of tho Chancery Court was re- ■ versed and the cause remanded. — Rapier v. C%tlf City Paper Company, 64 Ala. 330.

Heard before Lion. N. S. Graham. On the 11th June, 1875, the Chancery Court of Lee county, in a suit then pending in that court, wherein George D. and George W. Hooper were complainants, and ~W. O. and M. A. Yonge were defendants, rendered a decree of foreclosure of a mortgage executed by the defendants to the complainants, and ordered a sale of the lands conveyed thereby for the payment of the mortgage debt.

Heard before Hon. II. C. Speaice. The bill in tbis cause was filed, April 25th, 1879, by Lehman, Durr & Co. against Laura E. Shook and Hester E. Hodges (formerly Shook), to bave delivered up and cancelled, as fraudulent and void, and as a cloud upon complainants’ title, a deed executed to the defendants by their father, W. T. Shook, conveying to them certain real estate situate in the town of Gadsden, and to enjoin them from further prosecuting an action bf ejectment, which…

Heard before Hon. John A. Foster. The bill in this cause was filed by John Kingsbury against John T. Milner and Henry W. Caldwell, for the purpose stated in the opinion.

Arrbal from Butler Chancery Court. Heard before Hon. H. Austill. The bill in this cause was filed by Anna W. Munchus against Emily E. Harris, and Jonas W. Jones, as the administrator of the estate of Joseph K. Munchus, deceased, for the purpose stated in the opinion. Munchus died in October, 1873, leaving him surviving his widow, the complainant, and three adult, but no minor children. At the time the bill was filed his estate had not been declared insolvent.

Tried before Hon. John P. Hubbard. . Ejectment by J. B. and Georgia Ann Slaughter against McBride and Latimer, for the recovery of a tract of land in the possession of McBride, as tenant of Latimer.. The facts are stated in the opinion.

Heard before Hon. Charles Turner. The bill in this cause was filed on the 24th of April, 1879, by H. L. Hill, as the assignee in bankruptcy of D. F. Constantine, the appellee, against J. Pollock & Co., the appellants, to have delivered up and cancelled a deed executed by the bankrupt on the 2d of March, 1878, and during the pendency of proceedings in bankruptcy, against him, conveying to the appellants certain real estate situate in Birmingham.

Tried before Hon. IT. D. Clayton. This was a statutory real action in the nature of ejectment brought by R. J. Higgins, “ as the receiver of the assets of S. A. & H. Williams,” the appellee, against Z. IT. Williams, the appellant, and was commenced on 13th September, 1879. The-'appellant, defendant in the Circuit Court, pleaded not guilty, ^ and also suggested adverse possession for more than three” years and the erection of valuable improvements on the premises.

Tried before Hon. TI. T. Toulmin. This suit was brought by Edgar J. Sweeney against Williard E. Smith; to recover a horse.

<p>Application to this court for a writ of mandamtcs.</p> <p>The facts are stated in the opinion.</p>

Heard before Hon. N. S. G-raiiam. The bill in this cause was filed on the 7th of April, 1880, by George W. and George D. Hooper, against the Savannah and Memphis Railroad Company, a corporation owning and operating a railroad in this State, and others claiming under a mortgage executed by the company “ a few days before the date ” of .the agreement, upon which this suit is founded. The case made by the record is substantially stated in the opinion.

Heard before Hon. Jno. A. Foster. The bill in this cause was filed by the appellee against the ■appellant and one W. B. Smith, to foreclose a mortgage executed by Smith to appellee, conveying a horse therein described, to secure a debt evidenced by a note of even date with the mortgage, and payable one day after date.

Heard before lion. John A. Foster. The bill in this cause was filed by John N. Murphy, the appellee, against Robert ~W. Robinson, the appellant, for the purpose of enjoining the latter from proceeding further to enforce the collection of a judgment which he had obtained against the appellee in the Circuit Court of Montgomery county, on the 30th June, 1878, for the sum of $422.59, and on which he had caused an execution to be issued and levied on a lot of land in the city of…

Tried before Hon. John r. Hubbard. This was an action of assumpsit for the use and occupation •of- a certain store-house in the city of Montgomery, from the 1st Octobei’, 1879, to tlie 1st October, 1880; was brought by B Wolff & Bro. against Frederick Wolffe, and was commenced on May 10th, 1881.

Heard before Hon. Charles Turner. The facts are stated in the opinion. (1). The jurisdiction of the court in this case can not be maintained on the ground of removing a cloud from the title, because it is averred, proven, and admitted that the complainant was not in'possession. — Arnett v. Bailey, 60 Ala. 438; Jones v. Be Graffenreid, lb. 151. (2). There is no such averment of fraud as will confer jurisdiction.

Tried before Hon. A. Woods. On the 19th of January, 1880, an election was held in beat 9, in Calhoun county, under the provisions of an act of the General Assembly, authorizing probate judges in Calhoun and other counties therein named, “to order elections in certain cases, to prevent the sale or giving, or other disposition of vinous or spirituous liquors within certain limits ’in such counties,” approved March 19th, 1875 (Pampli.

Heard before Hon. Thomas Cobbs. The bill in this cause was filed on 26th January, 1881, by Amanda Crenshaw, suing Ly her next friend, against John Ñ. Carpenter, as the executor of the last will and testament of Willis Crenshaw, deceased, and others, seeking to have dower allotted to her in the lands of which said testator, who was her husband, died seized and possessed, in 1862, and which were afterwards sold by the executor for the paymeirt of debts.

Heard before Hon. H. Austill. On the 21st July, 1873, Eveline T. Wimbish, a married woman, by her next friend, filed the bill in this cause against Miles M. Wimbish, her husband, and Henry C. Moses, M. P. LeGrand and the Montgomery Mutual Building and Loan Association, a body corporate under the laws of this State.

Tried before lion. Ii. D. Clayton. This was an action of trover by Samuel E. Hughes against Forney Renfro, for the recovery of damages for the alleged conversion of a horse. Renfro having died pending his appeal in this court, the cause was here revived in the name of his personal repsesentative.

Tried before lion. O. J. Sbmmes. On the 2d of April, 1880, E. R. Weems commenced suit, by summons and complaint, against B. O. James & Co., founded on an account.

Tried before lion. Ii. D. Clayton. This cause was commenced on 6tli December, 1880, by an attachment sued out by O. P. Fitzsimmons, as trustee of Mrs. M. B. Fitzsimmons, against T. B. Howard, to recover rent and advances.

Tried before Hon James M. Hobson. This was a prosecution under section 4354 of the Code of 1876, and was commenced by a warrant of arrest issued by a justice of the peace, acting as a committing magistrate, upon an. affidavit made before him. The defendant waived an examination before the justice and gave bail, as required by that officer, for bis appearance before the county court, to answer the charge preferred against him.

Tried before Hon. G-eo. H. Craig. Tlie facts are sufficiently stated in the opinion. (1). It is settled tliat upon the death of a person seized of an heritable estate in lands, the title descends to, and vests m them. Doe v. Hardy, 52 Ala. 297; McGully v. Chapman, 58 Ala. 328 ; Calhoun v. Fletcher, 63 Ala. 580.