Volume 71 — Alabama Reports

Tried before Hon. JaMEs E. Cobb. The indictment in this cause charged the defendant with the murder of John T. Franklin; and he was convicted of manslaughter in the first degree.

JoiiN Mooee. At the fall term, 1881, of said court, the defendant was indicted for grand larceny, the property alleged to have been stolen being a heifer, “ an animal of the cow kind,” the property of one Lavender; and, at a subsequent term, he was tried on the plea of not guilty, and was convicted.

Tried before Hon. IÍARRY T. ToulmiN. The defendant was indicted at the spring term, 1881, of said court for public profane swearing, and was at the succeeding term tried and convicted. The indictment is set out in the opinion.

Tried before Hon. James M. HobsoN. The defendant was indicted at the spring term, 1881, of the Circuit Court of Hale county, for buying or receiving “a half bushel of corn of the value of fifty cents from Stephen Jones after the hour of sunset and before the hour of sunrise of the next succeeding dayand the indictment was transferred to the County Court under the statute, where the cause was tried before the judge of said court without a jury, and the defendant was found…

Tried before Hon. Le Roy E. Box. The indictment in this cause was found at the fall term, 1879, of said court, and contains one count, in which it is charged that before the finding of the indictment, the defendant “ bet or hazarded money, to-wit: lawful currency of the United States of America, of a value and denomination to said jurors unknown, or other thing of value, to-wit: poker chips of the value of one cent, at a game played with cards or dice, or some device or…

Tried before lion. William E. ClabKe. The judgment in reference to the costs in this case is in these words: “ It is also ordered that the prisoner be and he is hereby sentenced to additional hard labor for Marengo county for one hundred and sixty-nine days, the time required by law to work out the costs of this prosecution at forty cents per day.” The record fails to show the items of costs. The other facts are sufficiently stated in the opinion.

Appeals from Madison County Court. Tiled before Hon. William HiciiaRdsoN. These were prosecutions for gaming, commenced and tried in said court. The questions reserved for the consideration of this court are the same in each case, and were raised-on motions to re-tax the costs. These motions were denied by the lower court, and, on appeal, both cases, were argued and submitted together.

Tried before lion. O. J. Semmes. At the November term, 1880, of said court, Nat Sylvester, alias Nathaniel Sylvester, the defendant, was indicted for the murder of Jeremiah Lynch; and at a subsequent term he was tried and convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for ten years.

Tried before Hon. Geo. H. Cjraig. This was a contest of an exemption claimed by Frank M. Harris, the appellant, to a debt which William H. Locke owed him, and which William G. Miller, the appellee, sought, by process of garnishment, to subject to the payment of a judgment for $243.87, which he recovered on 18th April, 1877,' in the Circuit Court of Hale county against Harris. The garnishment was issued on 11th July, 1877, and was served on the same day.

Heard before Hon. Thomas Cobbs. The bill in this cause was hied in November, 1880, the day of the month not shown, by William F. Eose and Julia E. Eose, his wife, against Orson D. Gibson and Mary J. Gibson, liis wife, Joseph Lee and Eebecca Lee, his wife, Eobert Wilson and Martha Wilson, his wife, and James M., Jacob, and Levi Warren; and its material averments are, in substance, as follows: Levi E. Warren, late of Lawrence county in this State, died intestate, about the…

Tried before ITon LI. D. OlaytoN. This was a suit on a promissory note by Edwards, LIudmon & Co. against T. 0. & J. Meadows, and was commenced on September 20th, 1881.

Eleard before Hon. TiroMAS Cobb's. On 12th Play, 1845, William W. Long was duly appointed by the Orphans Court of Greene county the guardian of Lunsford Long, a person of unsound mind, and, as such guardian, executed a bond in the penal sum of $2,400, with Benj. L. Long and Bryan Watkins as his sureties, took possession of the estate of his ward, and continued as such guardian until his death, in 1865.

Heard before Hon. A. W. Uillakd. In 1814, Bird Ivey executed and delivered a deed of trust conveying a large body of lands situate in Pickens county, in this State, to a trustee therein named, to secure certain debts recited in the deed to have been owing by the grantor to James L. Hibbler. This deed contained a power of sale on default in tlie payment of the secured debts.

Heard before Hon. A. W. Hxllaed. Appeal by George W. Taylor, guardian ad litem of R. P. Roach, a minor, from a decree rendered by said Court of Chancery on the final settlement of E. McCall’s administration upon the estate of Rozena Roach, deceased. The opinion states the facts.

Tried before ílon. J. A. Muraras. This was an action commenced under the statute by F. W. Rothe against TT. Bellingrath, John N. Murphy and John Wilson, to enforce a mechanic’s lien for materials and machinery alleged to have been furnished by the plaintiff under a contract with the defendant Bellingrath, for a mill which had been leased by the latter from the defendant Wilson. The complaint contains two counts.

Tried before Hon. Le Roy F. Box. This action was commenced on 27th March, 1879; was brought by the Union and American Publishing Company, a body corporate created and existing under the laws of the State of Tennessee, the appellee, against James P. Beard and others, the appellants, and was founded on a bond executed by them, by which they covenanted and agreed “ to pay to the proprietors of the American, a newspaper published in the city of Nashville, Tennessee, all damages…

Heard before Hon. Chaeles TukNer. The bill in this cause was filed on 24th August, 1875, by John Cooper against Elizabeth Hornsby and others, the widow and heirs at law of Leonard A. Hornsby, deceased, seeking to redeem certain lands which were sold under a power contained in a mortgage executed by Cooper to the said Leonard A. Hornsby, deceased.

Heard before Hon. Thomas Cobbs. The bill in this cause was filed on 3d July, 1875, by Arabel-la C. Prince, a married woman, by her next… Held: that “a married woman having executed a conveyance or mortgage to secure the debt of her husband, may come into equity to have it set aside and cancelled, without averring fraud, duress, or improvidence in the transaction.” (3) Under the provisions-of the Code, in suits relating to the wife’s statutory separate estate, she must sue…

Tried before lion.- Habey T. Toulmebt. These suits were founded on two official bonds of M. H. McNeil, as tax collector of Marengo county, and were brought by the State against him and the sureties on each of said bonds-In each case the complaint and a demurrer filed thereto are the only pleadings contained in the record.

APPLICATION to this court for a writ of mandamus to compel the judge of the Circuit Court of Pickens county to strike cause from the docket.

Heard before Hon. N. S. Geahah. The bill in this cause was filed by Charles M. Hooper, as the administrator of the estate of Thomas D. Jones, deceased, against Thomas H. Strahan, Sarah Strahan, the widow and heirs of said decedent, and James M. Monk and J. T. McCoy, and its purpose was to enforce a vendor’s lien on certain lands which said decedent sold to Thomas H. and Sarah Strahan, Monk and McCoy being made parties defendant as sub-purchasers of different portions of the…

<p>Appeal from Franklin Chancery Court.</p> <p>Heard before Hon. Thomas Cobbs.</p> <p>The ease made by the record is sufficiently stated in the opinion.</p>

Heard before Hon. Thomas Cobbs. The bill in this case was filed on 12th February, 1881. Its purpose and material allegations are sufficiently stated in the opinion.

Tried before Luther R. Smith, Esquire, acting as Special Judge. This was an action brought by the appellees against the appellant, to recover damages for the alleged conversion of three bales of cotton.

Tried before Hon. H. C. SpéaKE. On 16th April, 1879, James A. Pique, James W. Manier and Lewis W. Hall commenced this action against William Allford, tenant of James Arendale, to recover certain land situate in Jackson county ; and Arendale was, on his motion, made a party defendant under the statute.

<p>Ai’peal from Madison Chancery Court.</p> <p>Heard before Hon. N. S. G-bai-iaM.</p> <p>The bill in this cause was filed by William A. Pike against Samuel J. Pettus, on 18th October, 1879, to enjoin an action of ejectment which the defendant had commenced against the complainant in the Circuit Court of Madison county, and to have set aside and cancelled a deed executed by the sheriff of said county, under which the defendant claimed title. On loth March, 1860, the complainant purchased the north-west quarter of section sixteen, township three, range two, west, and, with James Johnston and another as his sureties, executed four notes or bonds for the purchase-money. During the war Johnston paid two of these notes or bonds; and after the war suits were brought, and judgments obtained against Pike and Johnston on the other two notes or bonds. These judgments were paid by, and assigned to Johnston, who afterwards caused executions to be issued thereon, and placed in the hands of the sheriff of said county. The lands in controversy were sold by the sheriff under these executions, and were purchased by the defendant, to whom they were afterwards conveyed. The bill alleges that in 1861, the complainant bargained and sold the sixteenth section land, purchased by him, to Johnston, in consideration of his promise and agreement to pay off and discharge the notes or bonds which had been given for the purchase-money, and placed him in possession thereof, and that, in part performance of bis contract of purchase, .Johnston paid one of said notes or bonds in February, 1862, and another in March, 1862. The statement of the case made by the record in the opinion only renders it necessary to here set out the substance of the testimony of E. C. Betts, a witness examined on behalf of the complainant, to whose testimony reference is made in the opinion. He testified, in substance, that after the sale of the sixteenth section land to the complainant, the time not stated, at the -request of a party who desired to purchase said land, and acting on information obtained from the complainant, the purport of which was that Johnston was then the owner thereof, he inquired of Johnston whether the land could be purchased, to which Johnston replied that “he had taken the land for his sister, Mrs. Bailey, and that it was not for sale.” The witness further testified, in substance, that after the war he again inquired of Johnston whether tlfe land could be purchased, and, if so, at what price; and that Johnston then stated that it could be purchased at what he had paid for it, the purchaser to pay him what he had paid thereon, principal .and interest, and to assume the payment of the balance due on the purchase-money.</p> <p>On final hearing, had upon pleadings and proof, the chancellor was of the opinion that the complainant was not entitled to relief, and caused a decree to be entered dismissing the bill. That decree is here assigned as error.</p>

Tried before Hon. Thos. W. RobeRts. John R. Carpenter departed this life on or about 25th July, 1876, being at the time of his death a. citizen of this State, residing in Greene county; and on 25th August, 1876, letters of administration upon his estate were granted by the Probate' Court of said county to James P. Dunlap, the appellant. ■ On 3d February, 1879, ou the report of the administrator, the estate was duly declared insolvent, and a day fixed for the administrator to…

Tried before Hon. Haeet T. ToulmiN. This was an action of trover, brought by Mary M. Whitfield, a married woman, against S. D. Smith, to recover damages for the alleged conversion by the defendant of a horse, averred to have belonged to the plaintiff as a part of her statutory separate estate. The cause was tried on issue joined on the plea of not guilty.

Tried before lion. LeBoy F. Box. Alex. 0. Sinclair, the appellee, commenced this action on the 5th of January, 1878, against Merit Street, George W. Dillard, the appellees, and one W. A. Davenport, to recover “ one thousand dollars damages for wrongfully talcing the following goods and chattels, the property of plaintiff, viz: One mule and one mare, of the value of three hundred dollars.” ~W. A. Davenport was not found, and service was only had on the other two defendants,…

Tried before Hon. Geoimíe H. Craig. This was an action of trover, brought by Nathan Bros, against J. M. Shivers and A. M. Eowlkes, to recover damages for the alleged conversion of two barrels, containing seventy-nine 17-100 gallons of whiskey; was commenced on 30th July, 1879, and was tried on the plea of the general issue, with leave to give in evidence any special matter of defense, the trial resulting in a verdict and judgment for the plaintiffs.

Appjcal from Madison Oban eery Court. The record does not disclose'the name of the chancellor before M'hom the cause was heard. ' The bill in this canse was filed on 13th January, 1879, by David D. Shelby, as trustee under a certain deed of trust, against Matthew M. Cowley and William M. Bozell, and their wives, to foreclose a mortgage on lands, executed by the defendants to the complainant: The complainant, as trustee, being seized and possessed of a certain tract of land…

Heard before lion. A. W. Hillabd. The bill in this cause was filed on 31st October, 1817, by Robert B. Dunlap against Henry A. Tutwiler, A. S. Steele and others, to foreclose a mortgage on lands executed by the defendant Steele to the complainant and others. The averments of the bill necessary to a proper understanding of the opinion, are stated in the opinion.

Tried before Hon. LeRoy F. Box. This was an action of trespass guare elausmn fregit, brought by W. M. Hames as the administrator of the estate of Sarah A. Gumming, deceased, against Enoch Brownlee and Hugh Brownlee, and was commenced on 21st August, 1873. The gravamen of the complaint is, that the defendant entered upon, and erected a dam across a stream of water flowing through, a designated tract of land belonging to the plaintiff’s intestate.

Tried before Hon. B. A. WalKER. This was an application by Jesse Folmar, the appellee, for permission and authority to erect a dam for a water grist mill and gin across “King’s Mill Creek,” and was filed on 25th February, 1880, and was contested by George S. Folmar, the appellant, whose lands were ascertained by the inquest of the jury to be liable to damage from the erection of the dam.

Tried before lion. ¥m. S. Mudd. Tlie facts bearing upon the principal questions raised by the record, and decided by the court, are sufficiently stated in the opinion. The appellant, the defendant in the lower court, claimed under a mortgage executed by the appellees and another to Asa Johnson, in January, 1873.

Tried before lion. LeRoy F. Box. This action was brought by Arthur T. Wood against George L. Ragland, to recover damages for the breach of a contract, made by the defendant with one Henry W. Truss, which is in the words and figures following; ‘‘During the years 1877 and 1878,1 promise to pay Henry W. Truss, a member of the firm of Truss, Wood & Co., forty-four thousand three hundred and ninety feet of merchantable, square-edged lumber, to be delivered, one-half during the…

Heard before Hon. Joinsr A.-Fostee. The bill in this cause was filed on 1st December, 1881, by Dora B. Beers and Mary Parker against Braxton Bragg, individually and as administrator de-bonis non, with the will annexed, of John Bragg, deceased, Shirley Bragg, John Bragg, William B. Bragg, and others, and its material averments are as follows: John Bragg departed this life in the county of Mobile seized and possessed of certain real estate situate in the Port of Mobile,…

<p>Appeal from Bussell Chancery Court.</p> <p>Heard before Hon. Jira. Al Fostee.</p> <p>The bill in this cause was filed on 6th October, 1880, by Joseph Vann against the surviving executrix and the devisees.of Joseph M. Vann, deceased, and the case made thereby is as follows: Joseph M. Vann departed this life in 1859, seized and possessed of a large and valuable estate, consisting in part of a plantation and slaves and other personal property, and leaving a last will and testament, in which the testator nominated Henry M. Vann, his brother, and Elizabeth Vann, his wife, as his executor and executrix, and directed that his estate should be kept together and managed by his said brother and wife, until his youngest child should arrive at the age of twenty-one years; and authorizing them' to buy. and sell property for the benefit of his estate, ánd to transact any business pertaining to the interests of the estate without any order of. court; and providing further that they should not be compelled to make any return to any court of their actings and doings, the testator expressing, as a reason therefor, “full faith and confidencé in their prudence and integrity.” After bequeathing certain specific legacies to his wife and children, the testator directs, that when his youngest child should attain the age of twenty-one years, all his land negroes and other personal property remaining on hand should be sold and equally divided among his children. The will was duly probated, and Henry M. and Elizabeth Vann were appointed the executor and executrix thereof, on 12th April, 1860, without bond. They acted jointly as such executor and executrix until 19th February, 1875, when Henry M. Vann died. Since that time the said Elizabeth has continued to act as' executrix of said will. In and during the year 1861, the complainant, under a contract with said executor and executrix, took charge" of, and superintended the cultivation of certain lands belonging to the testator’s estate, for which they agreed to pay him $250, which is averred to have-been the reasonable value óf his services. Of this sum no part was paid until in 1865, when the said Elizabeth. Vann paid complainant $10; and in December, 1865, the said Henry M'. and Elizabeth Vann, as such executor and executrix, gave to complainant their note for $240,' “the amount then agreed on to be due for said services.” This note not being paid, it was, on 1st December, 1872, renewed; and on the renewed note the complainant obtained judgment in the Circuit Court of Bussell county, on 12th November, 1874, against the said Henry M. and Elizabeth Vann, as such executor and executrix, for the sum of $427.79, the amount then due thereon, which judgment was néver paid or satisfied. The bill further avers that the estate of Henry M. Vann is insolvent, that the said Elizabeth Vann is also insolvent, and that there are no personal assets belonging to said estate, out of which his claim can be paid. The prayer of the bill is to have a certain tract of land (or so much thereof as may be necessary), of which the testator died seized and possessed, sold for the payment of his claim. By an amendment to the bill it was averred that the executor and executrix had the power under the will to contract for said services and to charge the said estate with the value thereof, and that they would have been entitled to a credit therefor, if they had paid the claim; and that in equity complainant ought to be paid out of said estate. By the amendment it is also prayed, that the complainant “be subrogated to the rights in equity, that said executor and executrix would have had, had they paid for said services, by decreeing that orator be paid the value thereof out of the property belonging to said estate.” The defendants demurred to the bill as amended, the gist of the demurrer being that the will conferred no power on the executor and executrix to contract said debt, that it merely imposed a personal liability on them, and that the claim was stale and barred by the lapse of time.</p> <p>The Chancery Court entered a decree sustaining the demurrer and dismissing the bill; and that decree is here assigned as error.</p> <p>cited 2 Perry on Trusts, §§ 907 -13; 19 Ala. 672; 30 Ala. 430.</p> <p>(No brief came to the hands of the reporter.)</p>

Tried before lion. LeRov F. Box. This was a suit brought by J. L. Barnhill against R. F. Steed, W. A. Steed and W. D. Steed, and was founded on a promissory note; executed by the defendants to the plaintiff. The defendants pleaded the general issue, and a failure of consideration. Other special pleas were also filed by the defendant ~W. D. Steed, which need not be set out in this report.

Heard before Hon Jiro. A. Foster. The bill in this cause was filed on 25th September, 18^9, by James M. Whaley and Elizabeth P. Massey against Isaac R. Whaley and others, for the purpose of establishing a resulting trust in certain lands in the bill described.

Heard before Pión. A. W. Dillaed. Prior to the year 1811, Mrs. Isabella Cawfield departed this life, intestate, seized and possessed of real and personal property, and leaving, as her only heirs at law, Thomas G. Cawfield and two other children ; and after her death Thomas G. Caw-field also died, owning an estate, the principal portion of which consisted of his distributive share in the estate of his mother, Mrs. Isabella Cawfield, and leaving him surviving his widow, Eliza…

Tried before Hon. N. PI. BbowNE. In the matter of the final settlement of the accounts of Frank S. Moody, as administrator de bonis non, with the will annexed, of Edward Sims, deceased. This cause was before this court at a former term, and is reported. — Hemphill v. Ifoody, Adbfrj 62 Ala. 510.

Tried before Hon. ThoMAs M. Arrington. This was a contest between Dunham, Buckley & Co. and the Phoenix Manufacturing Company, a corporation, attaching creditors of Baum & Kullman, the appellees, and Moses, Blum & Weil, and others, judgment creditors of Baum & Kullman, the appellants, over a fund in the hands of the sheriff of Montgomery county, which was realized from a sale of a stock of goods, wares and merchandise, on which he had levied the two attachments in favor of…

Heard before Hon. H. Austill. The bill in this cause was filed on 3rd September, 1879, and its material averments and purpose may be summarized as follows : In 1858, George W. Pettis died intestate in Montgomery county, in this State, seized and possessed of an estate consisting of real and personal property, and leaving him surviving Mary ~W. Pettis, his widow, and Theophilus, George W., James B. a,nd Mary S. Pettis, his only children and heirs at law.

Tried before Hon. Wm. S. Mudd. This was a motion by Thomas W. Roberts to enter satisfaction of a judgment recovered on 2nd November, 1871, in said court by John P. Rice, as the administrator of the estate of Henry Pippin, deceased, against him, John V. Wright and Charles Hays, for $623.80, and to quash an execution issued thereon.

Heard before lion. Thomas Cobbs. The bill in this case was filed on 7th July, 1881, by John B. Abernathy, as the administrator of the estate of James B. Bankhead, deceased, against Sarah A. Bankhead, John D. Terrell and R. M. Abernathy; and its material averments are substantially as follows: James B. Bankhead died intestate on 1st July, 1880, seized and possessed of real and personal property, and leaving him surviving his widow, the said Sarah A. Bankhead, and several…

<p> Bill in Equity tó Enforce Vendor's Lien. </p> <p>1. Vendor’s lien; when does not pass with transfer of note. — Prior to the act of February 13th, 1879 (Pamph. Acts, 1878-9, p. 171), the transfer of a promissory note, given for the purchase-money of land, by delivery merely, did not carry with it the right to enforce the vendor’s lien on the land.</p> <p>2. Equitable mortgage; what does not constitute. — The fact that a promissory note given for the purchase-money of lands contains a description of the lands, does not create an equitable mortgage thereon for the unpaid purchase-money.</p>

Tried before Hon. James E. Cobb. This was an application for a rehearing under the statute by Renfro Bros., the appellants, and the facts disclosed by the record are as follows: John Merryman & Co., the appellees, having recovered judgment in the Circuit Court of said county against John Chisholm, caused an execution to be issued thereon returnable to the fall term, 1880, of said court.

Heard before Hon. Charles TurNer. The bill in this cause seeks the specific performance of a contract executed by Thomas W. Sims and Dempsey Harrison,. as vendors, by which they agreed to convey certain lands to Parham N. Booker, and was filed on 21st October, 1879, by Eva El.

Heard before L. B. Coopee, Esquire, Special Chancellor. The bill in this cause was filed on 27th May, 1875, by Cordon, Rankin & Co., Adams, Thorne & Co., and others, creditors of Robert E. Tweedy, against him and his wife, Harriet 0.

Tried before Hon. LeBoy F. Box. This case was before this court at a former term, and is reported. — 8 cited Hutchinson on Carriers, § 760; 2 Greenl, on Ev. § 213. cited the former decision in this case, and Angelí on Carriers, § 129.

Heard before Hon. N. S. Gtbaham:. The bill in this cause was filed on 20th July, 1879, by the Mobile Life Insurance Company, a body corporate, against R. O. Randall and Josephine T. Randall, his wife, to foreclose a mortgage on land executed by them to secure a debt which the husband, who held the legal title, owed the complainant.

Tried before Hon. LeRoy E. Box. This was a real action under the statute in the nature of ejectment, brought by Joseph Allred against David Elliott, M. (x. Kennedy and William Sandlin, and was tried on issue joined on the pleas of not guilty and the statute of limitations of ten Íears. The defendants claimed title in Mrs. S. C. Kennedy, llliott and Sandlin being her tenants, and M. Gr. Kennedy her husband.

Heard before Hon. N. S. Gbai-iaM. The bill in this cause was filed on 28th February, 1882, by W. R. Larkin, J. F. Martin, J. Compton, W. B. ICeeble and G. W. R. Larkin against James E. Mason, James M. Buchanan and J. B. Tally, as administrator of the estate of Frances W. Mason, deceased; and its material averments are substantially as follows: On 1st August, 1861, Winfield S. Mason departed this life in this State, intestate, leaving him surviving Frances S. Mason, his…

Tried before Hon. W. B,. DeLoach. The facts are sufficiently stated in the opinion. The proof of the insolvency of the estate of James M. Hartsfield, deceased, consisted of an admission of counsel that “ said estate is insolvent.” It does not appear from the record when the debts, for the payment of which the lot was sought to be sold, were contracted; and no question on that point was made in the Probate Court.

Heard before Hon. ChaRles TueNee. The facts are sufficiently stated in the opinion. (No briefs came to the hands of the reporter.)

Tried before Hon. W. L. WhitlocK. This was an action on a promissory note brought by H. Hatfield against H. Tarrance and G-. W. Alexander. The defenses relied on in the court below were, in substance, (1) that the note was founded on an illegal consideration, in that it was a sale of an imperfect pre-emption or homestead right, and, therefore, violative of the statutes of the United States; and (2) that the note was void under the statute of frauds.

Tried before Hon. LeKoy F. Box. This was a statutory real action in the nature of ejectment, brought by Frederick B. Moore against John A. Savery, to recover possession of a certain lot of land in the town of Talla-dega, and was commenced on 30th January, 1874. The defendant pleaded, in short by consent, (1) not guilty; (2) the statute of limitations of ten years, and. (3) the statute of lim tations of twenty years; and the cause was tried on issue joined on these pleas.

Heard before Hon. JNO. A. Fosteb. In 1871, $1,400 was paid into the Probate .Court of Montgomery county, belonging to Samuel M., William D., Thomas PI. and MaryF. Pebworth, who were then minors, without guardian. Afterwards, in May, 1871, Mrs. Frances A. Pebworth, the mother of said minors, was appointed their guardian by said court, and, after qualifying as such by executing bonds with Patrick Eobinson andEobert H. Knox as her sureties thereon, she was paid said money.

Heard before Hon. Thomas Cobbs. On 12th May, 1860, Jesse B. W. Burgin, being then seized and possessed of the north-east quarter of section 31, township 20, range 5 west, sold and conveyed the same to his mother, Mary T. Burgin; and on 26th May, 1863, Mary T. Burgin, by deed with covenants of warranty, conveyed this land in fee simple to Ann Judson Burgin, and Joseph Burgin, the youngest children of Jesse B. W. and Mary Burgin, his wife, said grantees then being minors of…

Heard before Hon. ThoMas Cobbs. In the matter of the final settletnent of the administration of A. Houck upon the estate of Hopkins L. Houck, deceased, had before the register of said court, under a decree taking jurisdiction of said estate, and ordering a reference, on bill filed for a final settlement and distribution, by Josephine Johnson, one of the distributees, entitled to a distributive share of one-half, against said administrator, the administrators of the estate of…

<p>Appeal from Madison Circuit Court.</p> <p>Tried before Hon. Louis Wyeth.</p> <p>This cause was decided at the December term, 1880, but has not been reported. The record in the case could not be found bj the reporter. He has also endeavored t'o obtain the original bill of exceptions; but, as he was informed, that has also been mislaid or lost.. As the opinion, however, can be understood, on the important questions decided, from the facts stated in it, especially when aided by the facts appearing in the report of the case on former appeal (Bernstein v. Hum.es et al., 60 Ala. 582), it is thought best to report it. Paragraph 5 of the general charge of the Circuit Court, and charges asked, numbered 1 and 1 B, referred to in the opinion, judging from their connection, raised the same question as was raised by paragraph numbered of the general charge, which is set out in the opinion.</p> <p>It appears from the report of the case on former appeal, that this was a statutory real action, commenced on 12th July, 1871, by Mrs. E. C. Humes and others against Morris Bernstein; and. that the lot sued for is thus described: “The following tract or parcel of land, situated in the city of Huntsville, in said county of Madison, known and described as follows: Part of lot number seventeen in the original pilan of said city, fronting on Gal-latin street, commencing on said street ninety-nine feet from the north-west corner of said lot number seventeen, and running thence southwardly along said street thirty-eight and one-half feet; thence eastwardly, and at right angles with said street, one hundred and sixteen and one-half feet; thence north-westwardly, on a line parallel with said, street, thirty-eight and one-half feet; thence westwardly, at right angles with said street, to the beginning; also another part of said lot, commencing at the north-east corner of that part above described, running northwardly, on a parallel line with Gallatin street, ninety-nine feet; thence westwardly, and at right angles with said street, two feet; thence southwardly, and on a line parallel with said street, ninety-nine feet; thence eastwardly, at right angles with said street, to the beginning.” As further shown by said report, “the premises sued for were situated in a square or block, which was bounded on the north by Clinton street, east by Jefferson street, south by Randolph street, and west by Gal-latin street; and this square was subdivided, according to the original map of the city, into four lots, numbered 17. 18, 25 and 26, respectively; each lot measuring one hundred and forty-seven feet and six inches in width, and the same in length. Lot number seventeen was the north-west quarter of the square, and the defendant owned the north-west quarter of it.. The plaintiffs owned nearly the whole remaining part of the square, their lands adjoining the defendant’s .on the east and south. Of the two fractional lots sued for, the one fronting thirty-eight and one-half feet on G-allatin street was the southern part of the premises claimed by the defendant, and the narrow strip, two feet in width, was on the east. The main controversy was in reference to the large lot; the only question as to the other being, whether the division fence was on the proper line. , The plaintiffs claimed the premises sued for as a part of the property which once belonged to the ‘ Bell Tavern,’ and afterwards, to the ‘ Huntsville Hotel Companyand they dedirced their title from the said company, under a deed from the Hnited States marshal to L. P. Walker, as the purchaser at a sale under execution against the company, and a deed from said Walker to themselves.”</p> <p>It further appears from the opinion on the former appeal (60 Ala. pp. 598-9), that the deed from the Huntsville Hotel Company to Donegan and Hammond, as trustees, was executed on 1st June, 1861, to secure the payment of thirty-five thousand dollars of bonds which the company proposed to issue, with eight per cent, interest payable semi-annually ; the principal of the bonds to be due and payable in five equal installments, of $7,000 each, “due on the first of January, from the years 1872 to 1876, each inclusive.”</p> <p>(1) In ejectment plaintiff can not recover, unless he had, at the commencement of the suit, a legal, as distinguished from an equitable, title, and the right of possession.— Williams v. Hartshorn, 30 Ala. 211. He must recover on the strength of his own title, without regard to the strength or weakness of that of the defendant. Brook v. Yongue, 4 Ala. 584. (2) The law-day of the mortgage executed by the Huntsville Hotel Company having passed, nothing but an equity of redemption remained in the company, and Walker, as purchaser at execution sale, took nothing but this equity. This will not support ejectment. — Bernstein v. Himies, 60 Ala. p. 582; Welsh v. Phillips, 54 Ala. pp. 309, 317; Bark,er v. Bell, 37 Ala. 354; Band-ling v. Meade, 32 Ala. H ; Pryor v. Butler, 9 Ala. 418 ; 31 Maine, 246 ; 13 Yt. 129. (3) .This deed constituted an outstanding title in a stranger. See authorities supra. (4) Adverse possession of itself is notice of the title or claim under which the possession is held. — 5 Peters, p. 402; 6 Pick, p. 172; 16‘Ala. 596 ; 15 Ala. 372; 9 Ala. 409 ; 22 Ala. 156 ; Ang. on Lien, pp. 427, 481. (5) The deed from the sheriff to Elliott, and those following it are void for uncertainty, and create a break in plaintiff’s chain of title. Pollard v. Maddox, 28 Ala. 321; Boardman v. Reed, 6 Peters, 328; Oapen v. Glover, 4 Mass. 305 ; 1 Greenl. on Ev. §§ 350, 300-1, 297. (6) The plaintiff must prove a continuous title, a complete chain; and if any of the deeds in the chain are void, lapse of time will not prove them, and the whole title fails. Jenlcvns v. Noel, 3 Stew. 60; Hathaway v. Ciarle,, 5 Pick. 490; 1 Greenl. on Ev. §§ 25-6.</p> <p>( 1) As against all persons except the mortgagee and those claiming under him, the mortgagor is considered the owner of the land, so long as he remains i/npossession; and if the mortgagee does not disturb the possession of the mortgagor, a subsequent purchase from the mortgagor is valid and effectual. — Knox v. Easton, 38 Ala. 345; Doe v. MoLoslcey, 1 Ala. 708; Hitchcoclc v. Harrington, 6 Johns. 290 ; 1 Hilliard on Mortg. Ch. YIII. p. 162, § 15. (2) A claim of adverse possession, the statute of limitations, or maintenance can not be invoked by a mere naked trespasser. — Badger v. Lyon,1 Ala. 564; Doe v. Eslava, 11 Ala. 1029; Brown v. Dipsconib, 9 Port. 472; Hinton v. Nehns, 13 Ala. 222. (3) The deed from Aciden, sheriff, is not void for uncertainty in description. — Ellis v. Martin, 60 Ala. 394 ; Qla/rlc v. Few, 62 Ala. 243 ; Clements v. Pearce, 63 Ala. 284; Slater v. Breese, 36 Mich. 77; Reidinger v. Olevela/nd Iron Go. 39 Midi 30.</p>

Tried before S. W. JonN, Esquire, an attorney of tbe court, selected by the clerk under the provisions of § 18 of Art. YI. of the Constitution, the presiding judge having been, for legal cause, incompetent to try tbe cause. This was an action of'trespass de bonis asportatis, brought by Jasper N. Campbell against John E. Burns and Dick Hill, and was commenced in tbe Circuit Court of Dallas county on 18th January, 1875.

Tried before lion. ¥i. S. Mudd. This was a statutory real action in the nature of ejectment, brought by Thomas H. Alexander against John Alexander, and was commenced on 2d September, 1879. The plaintiff claimed title under a deed alleged to have been executed by defendant, aud the point of contention was, whether that deed had ever been delivered. The evidence introduced on the trial, so far as disclosed by the bill of exceptions, is sufficiently stated in the opinion.

Tried before Hon. Joi-rer Moore. This action was commenced on 3d April, 1819, by Charles J. Watson against Willis Brewer, to recover damages alleged to have been suffered by the plaintiff, resulting from the refusal of the defendant, while Auditor of the State, to allow him access to, .and an inspection of certain public records belonging to the Auditor’s office, containing accounts between the State and one J. F. Boyles, as tax collector of Monroe county, and tax collectors…

Tried before Hon. ¥m. S. Mudd. Tbe facts are sufficiently stated in the opinion. (No briefs came to the hands of the reporter.)

Tried before Hon. Thomas M. Arringtoni The facts are sufficiently stated in the opinion. ' The judgment-entry is not a substantial comjdiance with the form laid down, nor with the terms of the statute. It fails to set out the variance.

Tried before Hon. O. J. Semmes. The opinion sufficiently states the facts. cited Adams v. The State,, 55 Ala. 143; Moore v. The State, ante p. 307. (No brief ■■came to the hands of the reporter.)

Tried before Hon. JoN. HaealsoN. At the January term, 1883. of said court, Lewis Blackburn, tbe defendant, was indicted for the larceny*of a hog, and at a subsequent term he was tried and convicted.

Tried before Hon. S. H. Speott. At the spring term, 1883, of said court, Alvin Chappell, the defendant, was indicted for burglary, and at the same term was tried and convicted. On the trial, as shown by the bill of exceptions, “the defendant'went on the stand and made a statement of the facts of the case in his'own behalf.

Tried before Hon. TI. C. Speaice. The facts are sufficiently stated in the opinion. ® B £-• ó ^ CD § ¡V, CO F«> t>eS, to § 05 & P '* Ml Q § uk„»g § «> ^ ^ fS 0 M B pi O C£OCO (No brief came to the hands of the reporter.)

Tried before lion. LkÜoy F. Box. At tlie July term, 1S81, of said court, Phil, alias Philip Storey, and William Storey, were jointly indicted for tlie murder of Josiali Hall; and at a subsequent term they were tried, the jury returning the following verdict, as recited in the judgment-entry: “We, the jury, find the defendant William Storey not guilty, and find the defendant Philip Storey guilty, and sentence him to the penitentiary for two years.” The evidence introduced on…

<p>Appeal' from Choctaw Circuit Court.</p> <p>Tried before Hon. William E. Clakke.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>cited 2 How. P. C. c. 46, § 70; 1 Greenl. Ev. § 343; 1 Phil. Ev. pp. 83-5; 2 Rus. on Or. (5th Amer. Ed.), 986 ; State v. Neill, 6 Ala. 685 ; 4 Allen, p. 491.</p> <p>(No brief came to the hands of the reporter.)</p>

<p>Appeal from Lowndes Circuit Court.</p> <p>Tried before Hon. John Mooee.</p> <p>cited §§ 4785; 4789 and 4790 of the Code of 1876; Acts of 1878-9, p. 206; Twnipseed v. The State, 6 Ala. 664; Williams v. The State, 15 Ala. 259; Beasley v. The State, 18 Ala. 535; Anthony v. The State, 29 Ala. 27; 45 Ala. 86 ; 17 Ala. 181; 19 Ala. 586; 21 Ala. 218.</p> <p>cited Acts 1878-9, pp. 206-7; 1 Brick. Dig. p. 501, §§ 760-1; II. p. 499, §|734; Murpjhy v. The State, 6 Ala. 845; People v. Caswell, 21 Wend. 86; Commonwealth v. Slate, 11 Gray, 60; State v. Smith, 37 Mo. 58 ; Bex v. Wheeler, 7 0. & P. 170; 2 Whart. Crim. Law, § 1499.</p>

Tried before Hon. H. D. ClaytoN. At tiie fall term, 1882, of said court tbe indictment in this case was returned by the grand jury, and at the same term the defendant was tried and convicted. The indictment is set out in the opinion.

Tried before lion. LeRqy F. Box. John A. DeArman, the defendant in the court below, was indicted for the murder of Seaborn J. Crook, and was tried and convicted of murder in the second degree, and sentenced to the penitentiary for the term of twelve years. On the trial many witnesses were examined, both for the prosecution and the defendant, whose testimony is set out m extenso in the bill of exceptions.

Application to this court by the Attorney-General for Mandamus to the Circuit Court of Lawrence county, to compel the vacation of an order striking a criminal cause from the docket, and its restoration thereon for trial. Tbe facts are sufficiently stated in the opinion. (No briefs came to the hands of the reporter.)

Tried before lion. Samuel IT. SpRott. The facts are sufficiently stated in the opinion. (No brief came to the hands of the reporter.) The title to the liquor sold never passed out of Pilgreen until its delivery, at Columbiana, to the consignee. The expressman was the agent of defendant for the delivery of the liquor and collection of the price.

ApplicatioN to this Court by the Attorney-Genera] for “a writ -of certiorari, prohibition, or other proper writ,” to be directed to Hon. A. B. Hats, Judge of Probate of Cullman county, commanding him to show cause, if any there be, why a certain order made by him, discharging one Henry Merlet from custody, on the hearing of an application by said Merlet before him for a writ of habeas corpus. The facts are sufficiently stated in the opinion.

Tried before Hon. H. D. Clayton. Fed Yarbrough, defendant in the court below, was indicted, tried, and convicted for carrying a pistol concealed about his person.

Tried before Hon. ThoMAs M. ARRING-toN. At the.February term, 1883, of said court, John E. Burke, the defendant in the court below, was indicted for an assault on A. R. McCurdy with the intent to murder him; and at a subsequent day of the same term he was tried and convicted of an assault and battery.

Tried before Hon. Samuel H. Spbott. Henry Wliizenant, defendant in the lower court, was indicted, tried and convicted for the larceny of two steers or oxen, the property of Amanda Blackburn. The evidence for the prosecution tended to show the commission of the offense in Shelby county, in August, 1882, and that the steers were afterwards carried to Birmingham, in Jefferson county.

Tried before Hon. Thomas M. ArriNgtoN. Joseph Ford, defendant in the lower court, was indicted for the murder of William T. House, “ by striking him with a brick or brickbat; ” and he was convicted of murder in the second degree, and sentenced to the penitentiary for ten years.

Tried before Hon. JohN Moobe. This was an action of assumpsit on a promissory note, brought by Moody II. May against Young L. Royston, and was commenced on 24th June, 1881. Among other defenses, the defendant pleaded the statute of limitations of six years. The instrument sued on was executed on 13th October, 1874, and, as the evidence tended to show, was given for money loaned by the plaintiff to the defendants.

Tried before Hon. William E. Clabke. The tax assessor of Mobile county, on 1st August, 1881, assessed, and returned for taxation to the judge of probate, ■ for each of the years 1878, 1879, 1880 and… Held: in many adjudged cases, to be moneyed ccpital, within the meaning of that term as used in the act of Congress. This then -is the rate manifestly referred to in in the act of December 8th, 1880.

Tried before WilliaM C. Ward, Esquire, selected by the parties uuder the provisions of Section 18, Art. YI of the Constitution, the presiding judge having been, for legal cause, incompetent to try the cause. This was an action of assumpsit, brought by Joseph R. Dudley, as the administrator of the estate of Philip Mathone, deceased, against Samuel P. Steele, and was founded on an account -for money loaned, and for services rendered by plaintiff’s intestate to the defendant.

This was an application to this court by Caswell C. Hucka-bee, a defendant in a civil cause in the Circuit Court of Bibb county, against whom a judgment had been obtained, for a writ of mandamus, seeking to compel the Hon. JaMes E. Cobb, the judge presiding in said Circuit Court at the time of the trial of said cause, to insert in a bill of exceptions which had been prepared and presented to him by the petitioner, the words, “ This being all the evidence in the case,” as…

Tried before Hon. Joi-iN Moobe. This action was commenced on 22d August, 1876, by Matthew Turner against The Trustees of Howard College, a corporation, for the recovery o,f damages for the alleged breach of an agreement evidenced by a certificate of permanent scholarship issued by said corporation.

Tried before Hon. LIeNey C. SpeaKE. This was an action by Sarah M. Ainsworth, widow of S. M. Ainsworth, deceased, against The Supreme Commandery of the Order of the Knights of the Golden Rule, a corporation created and organized under the laws of the State of Kentucky; was founded on an instrument in writing called a “Knight’s Benefit Certificateand was commenced on the 28th March, 1882.

Tried before Hon. O. J. Semmes. This action was commenced on the 14th March, 1882, by E. E. Horton against Wollner, Hirshberg & Co., to recover damages for the breach of a contract made and entered into by them, whereby, as is averred, the defendants employed the plaintiff for the term of one year, to commence on the 22d August, 1881, at and for a stated salary; the alleged breach being that the defendants, in January, 1882, discharged plaintiff from their service without…

Tried before Hon. James E. Cobb. Tlie nature of the case, and the facts disclosed by the evidence are sufficiently stated in the opinion. At the written request of the plaintiff, Ferrell, the court charged the jury that if they believed all the evidence, they must find the issue in favor of the plaintiff, and the horse in controversy liable to the satisfaction of his execution. To this charge the claimants, Lehman, Durr & Co., excepted, and here assign the same as error.

Tried before lion. O. J. Semmes. Scire facias by George Eberlin, as the administrator of the estate of M. D. Eslava, deceased, against Manuel Betancourt, commenced on 13th March, 1882, for the purpose of reviving a judgment which the said decedent recovered against Betan-■court in said court on 13tli April, 1868, a part of which was averred to be unsatisfied; and of having an execution issued for the collection thereof.

Tried before Hon. Jonathan ITaealsoN. This was an action by Reese D. Gayle against Henry C. Randall on a promissory note, made by the defendant on 22d January, 1872, and payable to the1 plaintiff on 1st December, 1872; and was commenced on 11th June, 1879.

Tried before Hon. Joi-iN P. Hubbard. This was an action by William M. Teague against the North German Fire Insurance Company, on a policy of insurance, covering a stock of merchandise. There was a judgment on . verdict for the plaintiff for $237.80, from which he appealed. The facts are sufficiently stated in the opinion.

Marengo Circuit Court. Tried before Hon. Harry T. ToulhiN. This was an attachment issued on 22d January, 1881, by J. B. Pegues, styling himself a notary public and ex officio justice of the peace, at the suit of Adams, Thorne & Co. against Yann & Waugh, and returnable to said Circuit Court.

Tried before Hon. ¥m. E. Clarke. This was an action by N. M. Mason against L. Crabtree, and W. J. Jolly and C. Prichard, sureties on his official bond as a notary public “having the jurisdiction of justices of the peace;” and was commenced December 2d, 1881. The substantial aver-ments of the complaint are stated in the opinion. The defendants demurred to each of the counts, assigning numerous grounds.

Tried before Hon. H. D. ClaytoN. The facts are sufficiently stated in the opinion.

Aiupeal from Greene Circuit Court. Tried before lion. ¥m, S. Mudd.

Tried before Hon. Samuel H. Speott. This was a motion for a summary judgment, under the statute, by Benjamin Colien against Charles Coleman, as treasurer of Greene county, the grounds of which are sufficiently stated in the opinion. The defendant interposed a demurrer to the motion, which was sustained by the court; and the plaintiff declining to plead further, a judgment was rendered for the defendant. That judgment is here assigned as error.

Tried before Hon. H. D. Clayton. The nature of this proceeding and the evidence introduced on the trial aré sufficiently stated in the opinion. The court refused plaintiff’s motion on the evidence, and he excepted. This ruling is here assigned as error. (No brief came to the hands of the reporter.) cited Speed v. Cocite, 57 Ala. 209.

Tried' before Hon. ThoMAS M. ARRINGTON. This was an action by Thomas Joseph, jr., against Erancis C. Randolph, to recover $250, which the plaintiff paid to the defendant, as judge of probate of Montgomery county, for a license under the - provisions of an act, entitled “ An act to amend an act to require a person who employs, or in any way engages laborers in the counties of Dallas, Perry and other counties therein named, for the purpose of removing said laborers from the…

<p>Appeal from Barbour Circuit Court.</p> <p>Tried before lion. H. D. ClaytoN.</p> <p>This was a suit by David M. Seals against R. Q. Edmondson, to recover damages for the loss of twelve bales of cotton, which the plaintiff had stored with the defendant as a warehouseman, at a stipulated rate of storage, and which were destroyed by fire, on the night, of 25th December, 1880, by reason of the alleged negligence and want of proper care and diligence on the part of the defendant. The defendant pleaded (1) the general issue; (2) “ that by the contract under which the plaintiff stored the cotton, mentioned in the complaint, in defendant’s warehouse, it was stipulated that said defendant was not to be responsible for the loss of said cotton by acts of Providence, or by fire, and that the said cotton was consumed by an accidental fire, for which defendant was in no way responsibleand (3) the same facts as are alleged in the second plea, except the words, “for which defendant was in no way responsible,” are omitted. A demurrer was interposed to the third plea, but it does not appear that it was passed on in the lower court. The trial was had on issue joined on the foregoing pleas, as appears from the judgment-entry, and resulted in a verdict and judgment for the defendant.</p> <p>The plaintiff reserved several exceptions to the rulings of the court on the admissibility of evidence, and also to the giving, at the request of the defendant, of the following charge: “The question in this case is not what Edmondson, the defendant, might have done to prevent the fire, or to put out the fire, but the question is, did Edmondson fail to do anything which ordinary care required of him.” The facts disclosed by the evidence, and the exceptions reserved in reference thereto, are sufficiently stated in the opinion.</p> <p>The rulings of the Circuit Court on questions of evidence, and the charge given at defendant’s request, are here assigned as error.</p> <p>cited Story' on Bailments, §§ 441, 549, 549a; Wharton on Neg., §§ 47-50, 569, 573, 576; Hatchett v. Gibson, 13 Ala.'587; Hopkins v. M. da O. R. R. Go., 41 Ala. 486; Hemley v'. Falconer, 32 Ala. 536; 1 Brick. Dig. p. 809, §§ 81-2; Johnson v. State, 17 Ala. 618 ; Harrell v. Mitchell, 61 Ala. 270; Spiva v. Stapleton, 38 Ala. 171; Weaver v. Ala. Goal Mm. Go., 35 Ala. 176; Jones v. Fort, 36 Ala. 449; Gilmer v. City Council, 26 Ala. 665.</p> <p>cited M. da G. R. R. Go. v. Prewitt, 46 Ala. 63 ; Ala. d Term. R. R. Go. v. Kidd,35 Ala. 209; Story on Bailments, §§ 23, 31, 62, 79, 450a, 456 ; Gibson v. Hatchett d Bro., 24 Ala. 201; S. C., 13 Ala. 587; Grey's Fair. v. Mobile Trade Go., 55 Ala. 387, and authorities cited; Moore v. Mayor, 1 Stew. 284; Steele v. Townsend, 37 Ala. 247; Story on Bailments (8th Ed.), §§ 549a, 5495, 30-35.</p>

Tried before Hon. JONATHAN TIaRalsoN. The nature of this suit, and most of the material facts disclosed by the record, are sufficiently stated in the opinion; and it is only necessary to here make the following supplemental statement: The first policy issued, dated September 30th, 1876, and numbered 174, was turned over to the plaiutiff by Kayser, defendant’s agent at Selma, after the loss; the second policy, dated November 5th, 3 877, and numbered 281, and the third policy,…

Tried before Hon. TI. D. ClaytoN. This was a statutory real action in the nature of ejectment, brought by J. W. Cassady against LaFayette Driggers, and was commenced on lTt-Sh June, 1881. The cause was tried on issue joined on the plea of not guilty, the trial resulting in a verdict and judgment for the plaintiff.

Tried before lion. JohN A. FosteR. . This was a bill by O. A. Harris and others, children and heirs at law of 0.

Tried before Hon. H. D. ClaytoN. • The facts are sufficiently stated in the opinion. (No brief came to the hands of the reporter.) 5. H. DeNt and JohN D. Roquemoee, eoni/ra, cited Story on Con. Laws, § 47; State v. Hallett, 8 Ala. 159; Clover v. Clover, 18 Ala. 367; Tabnadgev. Tal/madge, 66 Ala. 199; Allen v. Mar nasse, 4 Ala. 554; Thomp. on Homs. & Ex. § 91, and authorities cited; JDmiiel v. Hamilton, 52 Ala. 105.

Tried before Hon. ThoMas M. AeRINGtoN. The facts are sufficiently stated in the opinion. (1) The judgment upon which the execution was issued was confessed under § 4454 of Code of 1876. It is founded upon the fine and costs assessed against the defendant; and the effect of the action taken by the sureties is, that they simply come in and make themselves parties defendant to the proceedings against the principal for the recovery of the fine and costs.

Tried before Elon. Samuel H. Spkott. This was an action by J. A. McAlpine & Co. against the Alabama Great Southern Railroad Company, a corporation operating a railroad in this State, to recover damages for injuries alleged to have been done to a mare and mule, the property of the plaintiffs, by the defendant’s locomotive and train of cars, through and by reason of negligence and want of care of defendant’s agents in the management and running of said locomotive and train.

Tried before Hon. JohN P. FIubbaRd. The facts are sufficiently stated in the opinion. (1) While a mortgage on an unplanted crop is a -mere executory contract, the cotton having been delivered in part execution thereof, the mortgagees were thereby clothed with the legal title. — Stern v. Swvpson, 62 Ala. 194; Abraham v. Carter, 53 Ala. 8.

Appeal-from Barbour Circuit Court. Tried before Hon. H. D. ClaytoN. . • • The facts are sufficiently stated in the opinion. (No briefs came to the hands of the reporter.)

Heard before Hon. Thomas Cobbs. This cause was before this court at the December Term, 1879,. and is reported under the title of Thames After the cause was remanded, a decree was entered, settling the equities of the respective parties in accordance with the opinion of this court on the former appeal, so far as they were then passed on ; and decreeing further, that the insurance company was entitled to the $948.15, rents collected from the “ Home place ” above mentioned.

Tried before Hon. James E. Cobb. This was a suit by W. TI. Mahan against Joseph Smitherman, and was commenced before a justice of the peace. The statement of the cause of action filed in the justice’s court appears to have been treated as a formal complaint in the Circuit Court, to which the cause was carried by an appeal from the judgment rendered before the justice.

<p> Petition Tyy Widow of Decedent for Exemption. </p> <p>1. Foreclosure of mortgage on real estate by sale; when surplus considered, as realty. When, .on the foreclosure of a mortgage on real estate, a surplus remains after paying the mortgage debt, such surplus does not become personalty for the purposes of distribution among the next of kin, or of exemption to the decedent’s widow or minor children, but, standing in the place of the equity of redemption, retains all the properties of realty.</p> <p>2. Surplus on foreclosure of mortgage on real estate; when widow not entitled to, as exempt.- — Hence, where a mortgage on real estate is foreclosed by sale after the death of the mortgagor, and a surplus, left after paying the mortgage debt, is paid to the administrator, the widow can not claim such surplus as personal property exempt to her under the statute.</p>

Tried before Hon. JoiiN P. HubbaR,d. This was an action .of unlawful detainer by Mary J. Houston against,T. L. Earris and W. 33. McCurdy, and was commenced on 18th February, 1881. There- was a judgment’ for the defendants before the justice of the -peace before whom the action was commenced, from which the plaintiff appealed to the. Circuit Court of Lowndes county.

Heard before Hon. Thomas Cobbs. The bill in this cause was filed by ~W. P. Brewer and others against the Commercial Bank of Selma, a corporation, and others, for the purpose of having a deed of trust, executed by Hirscher Bros., a .mercantile partnership, to secure certain of their creditors, declared a general assignment.

Tried before Hon. James E. Cobb. The Columbus Iron Works Co., having obtained a judgment against one Chisholm in the Circuit Court of Tallapoosa county, caused an execution issued thereon to be levied on five bales of cotton as the property of the defendant in execution. To this cotton Renfro Bros, interposed a claim, and the cotton was delivered to them by the sheriff, an affidavit having been made and bond given as.required by the statute.

Heard before lion. JoiiN A. Postee. The bill in this cause was filed on the 1st June, 1882, by Louis P. Waganer and Gr.

Tried before lion. Wm. E. ClaeKE. This was a suit by T. T. Daughdrill against O. S. Curtis, and was commenced on 8th March, 1882. The plaintiff declared on two promissory notes, one for $73.70, dated 10th February, 1873, and payable one day after date; the other for $17.00, dated December 10th, 1878, and payable one day after date.

Tried before Hon. James E. Cobb. This was an action of trespass de bonis asportatis, brought by N. Watts against D. S. Hice, Alex. Wilson and J. W. McDade, and was commenced on 21st December, 1881. The cause was tried on issue joined “on the plea of not guilty, and justification under legal process,” the trial resulting in a verdict and judgment for the plaintiff.

Tried before Hon. JohN Moobe. This was a statutory real action in the nature of ejectment, brought by C. E. Reese and E. C. Dunklin, as the administrators ae bonis non of the estate of Josiah W.… Held: and can not, and ought notnow to be questioned, that the constitution confers on the' probate court original, general and unlimited jurisdiction of the grant of administration, creating it, as to that matter, a court of general jurisdiction.

Tried before Hon. VVm. S. Mudd. This was a suit by James Little against the Alabama Great Southern Railroad Company, a corporation operating a railroad, to recover damages for defendant’s failure to deliver a barrel of alcohol, received by it as a common carrier, to be delivered to plaintiff at defendant’s depot at Tuscaloosa.