Volume 70 — Alabama Reports

From the Count)’' Court of Wilcox. Tried before the Hon. John Purieoy.

From the Circuit Court of Marshall. Tried before the ITon. Leroy F. Box.

<p>Prom tlie Circuit Court of Russell.</p> <p>Tried before the Hon. II. D. Clayton.</p>

<p> Prosecuticm for Wantonly Killing a Hog. </p> <p>1 Criminal jurisdiction of County Court; appeal from justice’s judgment. — The act approved February 23d, 1881, conferring additional jurisdiction upon the County Court of Wilcox, and regulating the proceedings in that court (Session Acts 1880-81, p. 295), takes away from the Circuit Court all jurisdiction to try misdemeanors in that county, and confers it on said County Court; and this includes the power to entertain appeals from a judgment of conviction rendered by a justice of the peace in a criminal prosecution.</p> <p>2. Affidavit and warrant; sufficiency of, in, description of offense; amendment. — In á criminal prosecution before'a justice of the peace, an affida-. vit and warrant charging that the defendant “killed a hog, the property of A. B., worth about ten dollars, against the peace,” &c., do not charge any criminal offense whatever ; but, no objection to the sufficiency of the-affidavit or warrant being raised before the justice, and the case being carried by appeal into the Circuit or County Court, where the trial is to-be had de novo (Code, § 4701), a complaint may be there filed, charging that the defendant, “ within twelve months before the commencement of this prosecution, did unlawfully or wantonly kill, disable, or destroy one-hog; the property of A. B.,” &c.</p>

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

From the County Court of Jackson. Tried before the ITon. John E. Tally. The defendant in this case was indicted, in October, 1880, for carrying concealed weapons; and the prosecution was transferred into the County Court, where the following proceedings were had, as shown by the bill of exceptions: “ The defendant waived a jury, and the cause was heard and. determined by the presiding judge without a jury.

From the Circuit Court of Cleburne. “Tried before the Hon. Licroy F. Box. 'The indictment in this case, charging the defendants with grand larceny, was found at the March term of said court, 1879.

From the Circuit Court of St. Clair. Tried before the ITon. Leroy F. Box.

From tlie Circuit Court of Blount. Tried before the ILon. Leroy F. Box.

<p>From the Circuit Court of Talladega.</p> <p>Tried before tlie ILon. Leroy F. Box.</p>

From the Circuit Court of Cleburne. Tried before Hon. Leroy F. Box.

<p> Indictment for Assaxdt with Intent to Mxorder. </p> <p>1. Subsequent declarations; when admissible to show malice. — Under an indictment for an assault with intent to murder, the defendant’s declarations to the person assaulted, made “about six minutes after the difficulty,” threatening to kill him if he did not “keep his distance,” cursing him, and forbidding him to stop at a house in the neighborhood, where he wished to stop for the purpose of having his wounds dressed, and whore the defendant had already stopped, are competent evidence for the prosecution, being relevant to the question of malice and hostile feeling.</p> <p>2. Prior threats; admissibility of, as showing malice.■ — Threats made by the defendant against the person assaulted, “about two weeks before the difficulty between them.” are admissible as showing malice, and as declaratory of his criminal intention.</p> <p>3. Impeaching witness by proof of former declarations. — When a witness is examined, with a view to impeaching him, as to his statements at a time and place designated, and he denies that he made such statements in the words or form suggested, he has a right to state, either on his direct or cross-examination, what he did say on that occasion.</p>

Prom tlie County Court of Madison. Tried before the lion. William Richardson.

From tlie Circuit Court of Tuskaloosa. Tried before the Hon. ¥m. S. Miron.

Tried before the Hon. H. T. Toulmin. This action was brought by the appellees, suing as partners, against William Otis, and was commenced on the 22d December, 1877.

Llearcl before the.Hon. Charles Turner. The original bill in this case was filed on the 6th November, 1876, by James F. Bailey, as administrator of the estate of .Needham Munden, deceased, against the distributees of said estate, who were Mrs. Nancy B. Munden, his widow, and William P. and Walter C. Munden, his two sons; and sought a settlement of his accounts as administrator, and also as piasiguardian for the two sons at their instance and request, and to enjoin…

Heard before the Hon. H. Austill. ■ The bill in this case was filed on the 25th November, 1879, by Mrs. Bridget McGrath, the wife of Michael McGrath, suing by her next friend, against her said husband, and one Daniel Kelly; and sought to vacate and. set aside, as a fraud on the complainant’s rights of dower and homestead, which accrued to her by virtue of her marriage with her said husband, a mortgage which he had executed, on the eve of his marriage with complainant, to…

Heard before the Hon. H. Austill. In these cases, which were argued and submitted together, both in this court and in the court below, the first bill was filed on the 3d January, 1877, by Mrs. Anna G. Turner and her husband, Arthur J. Turner, against Mrs. Emma C. Kelly and her husband, Washington O. Kelly; and sought to subject to the payment of a promissory note for $5,000, signed by the defendants, dated Mobile, March 27th, 1875, and payable one year after date, to Mrs. A.…

Heard before the Hon. Charles Turner. The original bill in this ease was filed on the 28th August, 18J4, by Andrew J. Terrell and others, children of Sarah A. and Andrew J. Terrell, both deceased, and grand-children of Abel Haggerty, deceased, against Mrs. Susan A. Cunningham and her husband, W. L. Cunningham; and sought a partition of certain lands, which Jackson Haggerty, deceased, had devised to his two sisters, Mrs. Terrell and Mrs. Cunningham, with an account of the…

Heard before the Hon. H. O. Speake. The original bill in this case was filed on the 10th November, 1871, by Morris K. Taylor, as the administrator de bonis non of the estate of Hughey Smith, deceased, against the jjartners composing the firm of Johnston & Seats, Isaac S. Ellett, and John McGaha (or John P. McGaha, as, he is indifferently called in the record); and sought to enforce a vendor’s lien on a tract of land, for the balance of purchase-money due and unpaid.

Heard before the Hon. Charles Turner. The bill in this case was filed on the 4th February, 1874, by the Alabama Gold Life Insurance Company, a domestic corporation, as a creditor of the Central Agricultural and Mechanical Association, another domestic corporation, on behalf of itself and all other creditors who might come in and make themselves parties; against the said Central Agricultural and Mechanical Association, and against Yirgil G. Weaver and others, as stockholders,…

Tried before the Hon. James E. Cobb. The appellant in this case, John W. Comer, filed his petition, •addressed to the presiding judge of the circuit which includes the county of Elmore, praying a mcmdcomus against John IL Bankhead, the warden of the State penitentiary at Wetumpka, requiring him to deliver to the petitioner the number of convicts to which he claimed to be entitled under a contract made with John G. Bass, the former warden.

Tried before the Hon. H. D. Clayton. The provisions of the act of 1868, under which the bonds here brought to view were issued, place the assessment and collection of taxes for tlieir payment in all respects on an equality with State and county taxes. These provisions entered into, and formed part of the contracts evidenced by the county bonds, and doubtless contributed to their market value.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 17th September, 1879, by Mrs. Eugenia Ashford, against Peyton L. M. Watkins; and sought the cancellation of a mortgage on a house and lot in the town of Courtland, which the complainant claimed as belonging to her statutory separate estate, and an injunction of an action at law which the defendant had instituted against her to recover the possession of the house and lot, claiming as the purchaser at á…

Heard before tlie Hon. IL Austill. The bill in this case was filed on tlie 16th January, 1880, by Lewis E. Latham, against William G-.

Heard before the Elon. II. C. Speake, as special referee, under the act approved February 23d, 1881. — Sess. Acts 1880-81, p. 66.

Heard before the Hon. N. S. Graham. The original bill in 'this case was filed on the 25th April, 1876, by James M. Bussell and George W. Hooper, against Henry Ware and John T. Humber ; and sought relief on the following’ state of facts, as alleged in the bill, and shown by the exhibits thereto: • On the 22d October, 1873, said Ware sued out an attachment against said Humber, claiming $700 as due for advances made by him to enable* Humber to malee a crop during that year on a…

Tried before the Hon. Jno. P. Tillman, an attorney of the court, selected by the parties on account of the incompetency of the presiding judge. This action was brought by P. A. Tutwiler, as administrator de bonis non of the estate of Charles W. ITill, deceased, against Thomas C. Browne, as administrator of the estate qf Gray Huckabee, deceased; was founded on a promissory note for $1,725, executed by said Gray Huckabee and others, dated.

Heard before the Hon. H. C. Speake. The Huntsville Gas-Light Company was organized, under the general law regulating the organization of private corporations, on the 4th April, 1856, and procured a special charter, or act of incorporation from the General Assembly, on the 21st February, 1860.

Heard before the Hon. II. Austell. The bill in this case was filed on the 28th July, 1875, by John Beid, jr., M. Temple Taylor, and… Held: without any collateral; and your orators charge that said forty-two (12) bonds were placed in said bank, and used by said Butt, without warrant or authority, and in violation of said trust, of which said bank had full knowledge; and that said bank subsequently took said bonds in settlement of the said past indebtedness of said firm,…

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 16th November, 1880, by Joseph L. Alexander and others, as distributees of the estate of Dewitt C. Alexander, deceased, and legatees under his will, against John D. Alexander, as executor of the last will and testament of Joseph M. Alexander, deceased, and also as administrator de bonis non of said estate by subsequent appointment, and against the other persons interested as distributees in the estate…

Heard before the Hon. N.. S. Graham. The appellees in this case, S. S. D. Riddle, James J. Yincent, J. G. L. Huie, and others, severally recovered judgments in the Circuit Court of Dallas county, at its Fall term, 1871, against the Selma, Rome and Dalton Railroad Company; and executions on said judgments having been duly returned “No property found,” writs of garnishments in each case was sued out on the 24th December, 1872, and served on the same day on the Southern Express…

Tried before the lion. Jona. Haralson. It was a well-settled principle of the common law, that improvements erected on land by a trespasser passed .to the owner of the land, and could not be dissevered or removed by the trespasser, nor could he claim any compensation for them. — Mills on Eminent Domain, § 148 ; Washlmrn v. Sproat, 16 Mass. 449; Stillman v. Ilamer, 7 How. Miss. 421; United Slates v. Tract of Land, 47 Cal. 515.

Appeals from tlie Chancery Court of Madison. Heard before -the Hon. N. S. Graiiam.

Heard before the Hon. Jona. Haralson. The bill in this case was filed on the 21st March, 1881, by Jacob Long and Herman Long, against the persons composing the several mercantile firms of Maas & Block, Bernstein & Co., Lienkauff & Strauss, Block Brothers & Co., and against Benjamin P. Long, as the assignee of said Bernstein & Co.; and sought equitable relief against several judgments, which were l’endered, according to the allegations of the bill, under the following…

Tried before the Hon. Geo. H. Craig. This action was brought by Edward K. Carlisle and Alex.

Tried before the Hon. James E. Cobb. This action was brought by Sterling J. Foster, against Cornelius Johnson, to recover a mule, “with the value of the hire or use thereof during the detention, namely, from the 2d October, 1879;” and was commenced on the 16th January, 1880.

Heard before the Hon. N. S. Graham. The original bill in this case was filed on the 31st July, 1871, by Andrew J. Wood, against Robert W. Peevey and his wife, Lou B. Peevey; and prayed an equitable attachment against a tract of land particularly described, the legal title to which was in Mrs. Peevey’s name, and that the land might be subjected to the payment of a debt, for which complainant was bound as the surety of said Robert W. Peevey.

Heard before the Hon. II. C. Speake. The bill in this case was filed on the 26th August, 1878, by Jolin W. Coker, against David C. Daniel; and sought, principally, an account of the rents and profits of a tract of land which was in the defendant’s possession, and of the waste alleged to have been committed and suffered by him, and also to recover the possession.

Appear from the Circuit Court of Blount. Tried before the Hon. John Henderson. This action was brought by James T. Gilliam against the appellee, a domestic railroad corporation; and was commenced on the 6th December, 1878.

Heard before the Hon. Charles Turner. The original bill in this case was filed on the 21th November, 1876, by Mrs. Catherine Cahalan, the wife of Michael Cahalan, against her said husband, George H.… Held: that the complainant’s money became the absolute property of her husband, on the presumption that the common law prevailed in South Carolina; and he dismissed the bill on this single ground. This decree is now assigned as error.

Heard before the Hon. H. Austill. The bill in this case was filed on the_ 19th July, 1873, by Mrs. Martha J. Lewis, a married woman, suing by ner next friend, against her husband (Dixon H. Lewis), Samuel K. Cox, and the Montgomery Mutual Building and Loan Association, a domestic corporation; and sought to enjoin a sale of a tract of land, under a power contained in a mortgage executed to said association by Cox, and also under a subsequent mortgage executed to said…

Tried before the Hon. Leroy F. Box. This action was brought by Thaddeus O. S. Ferguson (and, on his death, pending the suit, revived in the name of O. ~W. Brewton as his administrator), against Larkin Coker, to recover the possession of a tract of land, which was described in the complaint as “ Fraction D, section two (2), township fifteen (15), range six (6) east, in the Coosa land district, and twenty (20) acres lying and being in the south-west quarter of the south-east…

Tried before the Hon. W. C. Ward, an attorney of the court, selected by the parties on account of the incompetency of the presiding judge. This action was brought by Mary Ella Lee, an infant, suing by her next friend, against Jesse B. Shivers, to recover the possession of a tract of land in said county, particularly described in the complaint, with damages for its detention ; and was commenced on the 18th October, 1879.

<p>Rill in Equity by Wife, to eryjoi/n Sale u/nder Execution against ILusba/nd, cmd establish Resulting Trust in Lands.</p> <p>1. *Injunction of sale under execution at law. — A court of equity has undoubted jurisdiction to restrain a sale of lands under execution at law, at the instance of a party owning and having the rightful possession, when the sale, if consummated,-would cast a cloud on the title of the complainant, or work irreparable injury to him; but this jurisdiction is exercised with great care, and the party complaining, if his title is purely legal, and no special equity exists, must show that fraud has been practiced upon him, or that irreparable injury to him will result from the sale.</p> <p>2. Same. — The court will not interfere at the instance of a party who has only an equitable title, which is not cognizable at law, when it appears that the sale, if consummated, will not cast a cloud on that title, nor otherwise injuriously affect his rights; as, where the wife claims a resulting trust in lands, on account of her moneys used in paying part of . the purchase-money, the legal title being taken in the name of a third person, and seeks to enjoin a sale of them under execution, against her husband.</p>

Heard before the Hon. John A. Foster. The bill in this case was filed on the 5th April, 1880, by John Daniel, against the persons composing the firm of Owens & Co., the persons composing the firm of Henderson Brothers & Co., and the complainant’s partner, John A. Daniel; and sought, principally, to enjoin a sale of certain guano and cotton-seed under the levy of an execution in favor of said Owens & Co., against said John A. Daniel individually.

Tried before the TIon. H. D. Clayton. This action was brought by Thomas G-. Blackman, against John W. Dowling, and was commenced on the 20th August, 1874.

Tried before the Hon. LI. D. Clayton. This action was brought by the partners composing the late mercantile firm of Lyon & Co., against Flournoy & Épping as partners, and their sureties on an attachment bond; and was commenced on the 24th May, 1878.

Tried before the Hon. John P. Hubbard. This action was brought by James A. Davis, against Mike-Snider, to recover certain personal property, described in the complaint as “one four-feet water-wheel, and shafting and set of mill and gin gearing,” with the value of the hire or use thereof during its detention; and was commenced on the 13th January, 1x81. The cause was tried, as the judgment-entry recites, on issue joined on the plea of non detinet.

Heard before the Hon. H. Austill. The original bill in this case was filed on the lltli April, 1879, by William I).

Tried before tlie Hon. Jona. Haralson. This action was brought by Atlas J. Martin, against Samuel W. Pegues, as the administrator de bonis non of the estate of Alexander ~W. Ellerbe, deceased; and was commenced on the 3d August, 1878.

Heard before the Hon. H. C. Speake. The bill in this case was filed on the 22d December, 1876, by Archer W. Hatcher and his wife, Mrs. Mary Hatcher, who was a daughter of Edward H. Dillard, deceased, against William R. Larkin and John Y. Cross, as the administrators of the estate of said Dillard, and against the other heirs and distributees of the estate; and sought a final settlement of the accounts of said administrators, and to set aside, on allegations of fraud and…

Heard before the Lion. H. C. Spea.ke. The original bill in this case was filed on the 6th March, 1876,, by John L. Steele, against James Tedder and James T. Beatty; and sought to enforce a vendor’s lien on land, for the unpaid purchase-money.

Tried before the Hou. ,¥n. B. Wood. This action was brought by John Scott, against Mrs. Sarah E. Simons, to recover the possession of a tract of land, with damages for its detention; and was commenced on the 26th April, 1879.

Chancery Court of Dallas. Heard before the Hon. N S. Graham. The bill in this case was filed on the 28th December, 1880, by Joseph L. Alexander and others, as distributees of the estate of Dewitt O. Alexander, deceased, and as devisees and legatees under his will, against John D. Alexander, as the executor of said will, and also as the administrator da bonis non, of said estate; and sought to compel a settlement of the accounts of the said executor and administrator.

Tried before the Hon. John Moore. The grant of power to the corporate authorities of the city ef Selma, by the first section of the act amending the charter of the city, was of “ all the police powers and jurisdiction conferred by the charter,” outside of the city, “for regulating and licensing the sale of goods,” &c. This is a grant of police power only, and is to be distinguished from the taxing- power, or power to grant licenses for the purpose of raising revenue.

' Tried before the lion. II. D. Clayton. This action was brought by Whyte & Hull, suing as partners, against the persons composing the firm of Edwards, Hudmon & Co., “ individually and as partners,” to recover damages for the breach of a contract alleged to have been entered into by and between the parties, “ at Opelika, in said county, on or about November 3d, 1879, in substance as follows: On or about the date aforesaid, and at the place aforesaid, the said plaintiffs, at…

Appisal from the Chancery Court of Jackson. Heard before the Hon. N. S. Graham.

Heard before J. FI. Falknek, a solicitor of the court, as special chancellor, the Hon. N. S. Graham being disqualified to sit. To entitle the complainant to the relief prayed by his bill, he must allege a valid contract, such as meets the requirements of the statute of frauds; otherwise, his bill is wanting in equity, and subject to demurrer.

<p>Hill in Equity by Administator and Heirs of Deceased Purchaser, for Specific Performance, Injunction of Waste, dbc. .</p> <p>1. Parties to bill; when administrator and heirs may join. — When the purchase-money is unpaid, or when the fact of payment is controverted, the administrator of the deceased purchaser may be a proper party to a bill which seeks to compel a specific performance of the contract by the vendor; but, when the purchase-money has been paid in full, ana the bill affirmatively shows that there can be no necessity for the exercise by the administrator of his statutory powers over the real estate, he can not join with the heir in a bill to compel a conveyance of the legal title.</p> <p>2. Same. — Kor is the administrator a proper party to the bill, because it also seeks to stay the commission of waste on the lands, and to recover damages for trespasses irremediable at law; since, if damages should be recovered, he and the heir would have no common right in or to them.</p> <p>3. Amendment by change of parties. — When a bill is improperly filed in the name of an administrator as sole plaintiff, and the heirs are brought in by amendment, the name of the administrator can not be struck out by a second amendment, since this would work an entire change of parties.</p>

Heard before the Hon. John A. Foster. The bill in this case was filed on the 31st July, 1879, by John W. Leslie, as the administrator ■ de bonis non of the estate of Mrs. Mary Jane Henderson, deceased, against James H. Tucker, as the administrator of the estate of Willis R. Henderson, deceased, and several other persons.as heirs at law of said Willis R. Henderson; and sought to charge the lands and personal •assets, in the hands of the defendants as snch administrator and…

Tried before the Hon. J. A. Bilbeo, an attorney of the court, selected by the parties on account of the disqualification of the presiding judge, who was related to one of the parties.

Tried before the Hon. John P. Hubbard. This action was brought by Bailey Mi Talbot, a minor, suing by his mother as his next friend, against George F. Holloway; and was commenced on the 17th September, 1880.

Heal'd before the Hon. John A. Foster. The original bill in. this case was filed on the 2d October, 1879, by Henry W. Kelly, against H. L. Hudson, and sought to enjoin a judgment in an action of ejectment, or statutory action in the nature of ejectment, which the defendant had recovered, for the possession of a certain tract of land, which he claimed under a deed from one W. P. Balkum; also, to have Balkum’s said deed declared a mortgage, and to be let in to redeem, on…

Heard before the Hon. N. S. G-raiiam. 'The bill in this ease was filed on the 3d June, 1881, by Samuel C. Norwood, John Poe, B. L. McAnally, and Mrs. Lavinia Kirby, who was the widow of Joshua Kirby, deceased, against Jesse E. Brown, as the administrator de bonis non of the estate of said Joshua Kirby; and sought to enjoin two judgments, which the defendant had recovered against said Poe and McAnally respectively, in actions of unlawful detainer instituted by him in his…

Appkal from the Circuit Court of St. Clair, on appeal from the Probate Court. The record does not show the name of the presiding judge.

<p> .Bill in .Bgttify for Assignment of Dower, and Account of Rents or Mesne Drafts. </p> <p>1. Reformation of mortgage in equity; when takes effect-, as against mid-oir, not. party to suit. — When a conveyance or contract is reformed in equity, on the ground of mistake, the reformation relates back, for many purposes, as between tin- immediate parties, and takes effect as of the day the writing was first executed; but, as against the widow of the deceased mortgagor, claiming dower in lands which were omitted from the mortgage by mistake, a decree correcting the mistake and foreclosing the mortgage, she not being a party to the suit, and not being charged with notice of the mistake, takes effect only from the day on which it is rendered. Tf such decree were allowed to relate back, her right of dower might bo barred before she knew that the land had been aliened.</p>

Appear from the Circuit Court of. Lavtoenoe. Tried before the lion. II. O. Speaius. ■ This action wits brought by Hartwell O. Grubbs, against Thomas Masterson and James E. Moore, as .late partners doing business under the firm name of Masterson &■ Moore; was commenced on the 8th September, 1879, and was founded on the defendants’ promissory note for $700, executed in their firm name, dated June 12th,'-1878, and payable one.day after date.

Tried before the Hon. John Moore. This was a contest as to the right to a homestead exemption, between Daniel W. Block, plaintiff in execution, and Robert D. George, defendant and claimant. The plaintiff’s judgment was rendered on the 22d April, 1869, in an action commenced on the lltli March, 1869; and that action was founded on tlie defendant’s promissory note for $383.48, dated the 1st January, 1866, and payable on the 1st January, 1867.

Appear from the Circuit, Court of Perry. Tried before, the TIon. John P. Tirrman, an attorney of flic court, selected by the clerk ((lode, $ 6(54), on account of the incompetently of the presiding judge. Tite judgment in this case, from which the appeal is sued out, is in tite following words: “ William M. Brooks n. J. F. Warwick, and Geo. W. Chambers, TT. G. Bingham, J. M. JV. B. IVix, Titos. IF.

Api’Kau from the Circuit Court of Tallapoosa. Tried before the ITon. Jambs E. Cobb. This action was brought by Mrs. Sarah A. Phillips, suing as the executrix of the last will arid testament of her deceased husband, dames I). Phillips, against Elizabeth Ilornsby, Mark O. Golden, and William Golden, to recover the possession -of a tract of land particularly described in the complaint; and was commenced on the 12th August, 1819.

<p> Bill in Equity to enforce Vendor’s Lien on Land. </p> <p>1. Proof of assignment of note, by admissions of assignor. — In a suit in equity to enforce a vendor’s lien on land, the complainant claiming to be the assignee of the note given for the purchase-money, and making the_ assignor a party defendant, the assignment is sufficiently proved, as against the maker' of the note, by a decree pro confesso against the assignor.</p> <p>2. When answer is not responsive.; burden of proof. — When the bill seeks to enforce a vendor’s lien on land for the unpaid purchase-money, as evidenced by the purchaser’s note, an answer setting up an additional consideration for the note, and the failure thereof, is not responsive, and the burden of proving it rests on the respondent.</p> <p>3. Parol evidence; when admissible to affect writing. — The general principle, prevailing alike at law and in equity, is, that a contract or agreement reduced to writing, deliberately executed or accepted, and not bearing on its face any marks of incompleteness, is presumed to express the entire meaning, purpose, and contract of the parties, and parol evidence can not be received to add to, alter, or vary its terms; and tvhen a correction of it is sought in equity, on the ground that, by fraud, inadvertence, or mistake, it expresses either more or less than the parties in- ■ tended, the mistake must be plainly alleged, and, if not admitted, must bo established by convincing evidence.</p> <p>4. Error without injury in sustaining demurrer to cross-bill. — When a cause is heard on pleadings and proof, and no evidence is offered to support the allegations of the cross-bill, the sustaining of a demurrer to it, even if erroneous, would be error without injury.</p>

Tried before the Hon. James E. Cobb. This action was brought by Joseph W. Rhodes, against John Wlieless, to recover a set of mechanic’s tools, particularly described in the complaint, with damages for their detention; and was commenced on the 5th June, 1874.

Tried before the Hon. IT. C. Speake. This was a motion by William B. Martin, for a summary judgment against Thomas O. Hall and the sureties on his official bond as constable, “ on account of the failure of said Hall to make the money on an execution in his hands as constable, in favor of said W. B. Martin, and against Jacob Houst, issued on the 2d May, 1874, by J. J. St. Clair, justice of the peace, for $24, besides $5 costs of suit; and which, by the use of due diligence,…

Heard before the Hon. Thomas Cobbs. The original bill in this case was filed on the 3d February, 18 SO, by Edward W. Munford, against Thomas M. Burkett and T. P. Moore; and sought to enforce a vendor’s lien on a tract of land, for the balance of purchase-money due and unpaid.

Heard before the Hon. H. O. Speake. The bill in' this case was filed on the 27th September, 1878, by Mrs. Mollie F. Simms, the wife of Edgar T.… Held: on the authority of McMillcun v. Peacock,. 57 Ala. 157, that the ante-nuptial deed would have conveyed to the complainant a separate estate at common law, without the aid of the statute, and therefore did not create in her a statutory estate; but he overruled the demurrer, on account of the allegations of the bill as to the…

Tried before the Plon. William Richardson. In the matter of the estate of Emeline Robinson, deceased, on the application of George Meyer, the administrator de bonis non, for an order to sell lands for the payment of debts. The application was contested by Alfred McCalley, who was in possession of the land, claiming it as sole devisee under the decedent’s will.

Heard before the Hon. John A. Poster. The bill in this case was filed on the 4th October, 1880, by Charles A. Ivennon and others, children and heirs at law of Mrs. Martha B. Kennon, deceased, against Thomas Millsap, the partners composing the finn of Wright, Frazier & Co., and several other persons; and sought a discovery and account of the crops raised on a certain tract of land in said county, during the years 1877 and 1878, which were alleged to have been received and…

Heard before the Hon. FI. C. Speake. The bill in this case was filed on the 28th February, 1867, by James I. Donegan, against Mrs. Julia E. Hentz, Andrew Hentz, her husband, and several other persons; and sought to enforce a vendor’s lien on a certain house and lot in Huntsville, of which said Hentz and wife were in possession, and which Mrs. Hentz claimed as her own, under a decree rendered in her favor by the Chancery Court of said county, on the 6th December, 1866, in a…

<p>Bill in Eguity by Judgment Creditor, to subject Eguitable Interest in Bcmds. '</p> <p>1. Common law; presumed existence elsewhere. — In the absence of proof to the contrary, the common law will be presumed to prevail in South Carolina, when the parties resided there at the time their rights of property accrued.</p> <p>2. Gift to wife, and property accruing during marriage. — At common law, a gift or advancement to a daughter on her marriage, not limited to her sole and separate use, was a gift to the husband; and personal property accruing to her by operation of law during marriage, as her distributive share of her father’s estate, when reduced to possession by her oilier husband, vested absolutely in the husband.</p> <p>3. Earnings of wife ; gift by husband to her. — At common law, the earnings of the wife were the property of the husband, as absolutely as the fruits of his own industry and economy; and while he might give them to his wife, creating in her an equitable estate, such gift would not be valid as against his existing creditors; nor can such gift, created by mere verbal declarations, be established in equity against his subsequent creditors, when it appears that the husband retained and used the money in his business,, giving the wife no receipt, or written evidence of indebtedness, without objection on her part, and without the assertion of any claim by her until after the lapse of fourteen or fifteen years, when the claims of creditors had accrued, and the husband had become embarrassed with debt, if not in fact insolvent.</p>

Tried before the Hon. W. B. Wood. In the matter of the insolvent estate of A. L. Garner, deceased, which was declared insolvent by the Probate Court of said county on the 19th April, D69, and against which a claim was filed on the 27th September, 1869, in favor of “the estate of John A. Nooe, deceased.” The claim was verified by the affidavit of L. B. Thornton, and consisted of a single item, which was thus expressed: “December 27,1859.

Heard before the Hon. Charles Turner. The bill in this case was .filed on the 1st September, 1877, by Mrs. Eleanor E. Pearce, against Thomas T. Munford, praying the specific performance of a contract, by which she agreed to sell and-convey to said Munford an undivided one-seventh in-^ terest in a tract of land, particularly described.

Heard before the lion. Tiros. Cobbs. The original bill in this case was filed on the 24th May, 1880, by Bales Helms, against A. E. Fields and Lemuel Bentley, and sought equitable relief against two mortgages ; one of which was executed by the complainant to said Bentley, and the other to said Fields.

Heard before the IIou. N. S. Graham. The bill in this case was filed on the 10th September, 1879, by John G. Ennis and Sarah A. Ennis, who were husband and wife, against James L. and Fannie J. Ridley, also husband and wife; and sought, principally, the specific performance of a contract, made and entered into by the parties on'the 19th December, 1872, for an exchange of lands.

Tried before the Hon. Jona. ITaealson. This action was brought by Thomas P. Miller & Co., bankers in Mobile, suing as partners, against Starke IT. Boykin; was commenced on the 16th October, 1880, and- was founded on the defendant’s promissory note for $2,500, dated Mobile, March 10th, 1880, and payable at the Bank of Mobile, on the 26th June after date, to the order of B. O. James & Co., by whom it was transferred to the plaintiffs.

Heard before the Hon. H. O. Speake. The bill in this case was filed on the 22d August, 1876, by Thomas and Frederick Ashford, infant children and heirs at law of Thomas IT. Ashford, deceased, against William R. Patton, and the widow and personal representative of said Thomas IT.

Heard before the Hon. H. O. Speak®. The bill in this case was filed on the 9th December, 1879, by Isham W. Fennell and others, as heirs at law and distributees of the estate of Jamos W. Fennell, senior, deceased, against Mrs. Charity E. ITenry, and others, who were also distributees of said estate; and sought, principally, a final settlement and distribution of the estate. The decedent died, intestate, on the-19tli January, 1864, and several of his children afterwards died.

Appear from the Chancery Court of Elinore. Heard before the Hon. N. S. Graham. The bill in this case was filed on the 6th June, 1881, by John W. Comer, against John II.

Tried before the Hon. Leroy F. Box. This action was brought to recover damages for a sow and three pigs, alleged to have been killed by the defendant’s trains through the negligence of its servants; and was commenced before a justice of the peace. The complaint filed in the justice’s court, or statement of the' cause of action, was in the name of Jas. M. Small, and was-signed J. M. Small.

Heard before the lion. IL. C. Speaice, as special referee, selected by the parties under the provisions of the statute approved February… Held: that parol evidence could not be received as to the written grounds of contest, because no predicate was laid to authorize the introduction of secondary evidence; but that it was admissible, “as an outside fact,” to show that the probate of the will was contested, and that David Wade actively participated in behalf of the contestant.

Tried before the Hon. ¥m. S Mudd. This action of ejectment was brought to recover a tract of land, described as “the south-east quarter of the south-west quarter, and the south-west quarter of the south-east quarter, of section one (1), township seventeen (17), range one (1) west and was commenced on the 11th March, 18Y8.

Appeals from the Chancery Court of Dallas. Heard before the Hon. Charles Turner. The orignal bill in this case was filed on the 28th June, 1879, by Anna M. Gayle, as the administratrix de bonis non of the estate of Mrs. Mary L. Gayle, deceased, against Charles L. Marshall, William B. Shields, and William M. Martin; and sought to establish and enforce a vendor’s lien against a tract of land, on account of the balance of purchase-money alleged to be due and unpaid.

Apeeal from the Circuit Court of Pike. Tried before the Hon. IT. D. Clayton.

This case is brought up on a certificate of appeal granted by the clerk of the Circuit Court of Morgan, but the record does not show any judgment rendered by that court, and the certificate states that the appeal is taken from the award rendered by arbitrators, to whom was submitted a cause pending in that court. •

Heard before the Hon. N. S. Graham. This is a branch of the case of Oriinball v. Patton, reported in this volume.

Tried before the lion. Ii. D. Clayton. (1.) The power to examine and scrutinize into the election of their members is “ incident to all elective bodies.” — 1 Bay, S. C. 437. Held: that the original registration book, not the alphabetical list prepared by the clerk, was the proper one with which the poll-lists should be compared; and it is submitted to this court for inspection.

Tried before the Hon. Leroy E. Box. This action was brought by O. P. Whitley, against Jesse A. II. Murphree, to recover a one-horse wagon; and was commenced before a justice of the peace, on the lltli June, 1880.

Arpear from the Circuit Court of DeKalb. Tried before the Hon. Louis Wyetii This action of ejectment was brought to recover certain lands particularly described, which constituted parts of sections twenty-five (25) and thirty-five (35), in township four (4), range ten (10) east; and was commenced on the 2d September, 1878.

Tried before the Hon. Jas. E. Cobb. This action was brought by John C. Huss, against the Western Railroad Company of Alabama, a domestic corporation ; and was commenced before a justice of the peace, on the 18tli October, 1876.

Appear from the Chancery Court, of Tallapoosa. Heard before the Hon. N. S. Graham. The hill in this case was filed on the 19th February, 1878, by Daniel- Crawford, against William IT, Thomas, George F. Walker, and the personal representatives and heirs at law of Willis Maxwell, deceased; and sought, to subject certain lands, in the possession of the defendants, to the payment of the unpaid purchase-money due from said Thomas as the original purchaser.

Heard before the Hon. Charles Turner. The original bill in this case was tiled on the 30th June, 1870, by Mrs. Harriet B. Moore and Mrs. Ann T. Hill, each suing by her husband as next friend, as devisees and legatees under the will of their deceased sister, Jane Randolph; against Thomas C. Clark, as the administrator tie bonis non of the estate of said'Jane Randolph, and also as the administrator de bonis non of the estate of Richard Randolph, deceased, who-was the executor…

Tried before the TIon. James E. Cobb. This action was brought by W. A. Willingham, against James W. Long, to recover the sum of $205.83, the price of lumber and materials furnished by plaintiff to defendant, to be used in the construction of a house, and also to enforce a statutory lien on the house (and the lot on which it was situated, which was particularly described in the complaint); and was commenced on the 18th September, 1879.

Heard before the Lion. H. C. Speake. The bill in this case was filed on the 3d February, 1873, by James W. Steele, against Larkin P. Sullivan and others; and sought to restrain and prevent the… Held: on final hearing on pleadings and proof, that the alley was private, and the complainant had no interest in it. lie therefore dismissed the bill, and his decree is now assigned as error.

Heard before the Hon. Charles Turner. The original bill in this case was filed on the 2d January, 1878, by Mrs. Ann E. Milhous, the wife of James F. Milhous, against Mrs. Sallie Blackwell; and sought to foreclose a mortgage on a tract of land, which was described therein as '“being the lands of George T. Davis, mortgaged to Robert S. Hatcher, guardian, J. W. Olds and others, and sold by the register in chancery under the decree in the cause of Stephen Croom, administrator of…

Heard before the Hon. A. W. Hillard. The bill in this case was filed on the 9th March, 1878, by Thomas C. Clark, as the administrator of the estate of Jane Knox, deceased, and as administrator of the respective estates of Calhoun H. II.

Heard before the lion. H. C. Speake. The original bill in this case was filed on February 8th, 1877, by Samuel R. Cruse, as trustee of the estate of Mrs. Catherine Grimball, deceased, formerly Miss Catherine Moore, against the several persons who asserted claims to the property — namely, her surviving brothers and sisters, her surviving husband (John Grimball, who was also the administrator of his deceased wife by appointment made by the proper court in New York), and John…