Volume 72 — Alabama Reports

<p>Appeal from the Chancery Court of Morgan.</p> <p>Heard before the ITon. Thomas Cobbs.</p> <p>The bill in this case was filed on the 19th August, 1881, by Mrs. Isabella Humphreys, a married woman residin'g in Texas, against Dabney A. Burleson, individually, and as the administrator of the estate of Jonathan Burleson, deceased, who was the father of said complainant and defendant; and sought to set aside a settlement of said administrator’s accounts, which was made in the Probate Court on the 13th October, 1879, and to correct errors and mistakes which had intervened in said settlement to the prejudice of the complainant. The chancellor sustained a demurrer to the bill, for want of equity, on several grounds specifically assigned, and dismissed it; and his decree is now assigned as error. The material facts are stated in the opinion of the court.</p> <p>(1.) If the complainant was not a party to the probate decree, and is not chargeable with notice of it, she is not concluded by the decree, and is not •chargeable with any neglect in failing to appear and contest it. Notice of that settlement was not given to her as required by law, and is not effective for any purpose. The day set for the .settlement was the 11th August, 1879; and the notice given was of the administrator’s “intention” to present his accounts for allowance on the 13th October, 1879. The provisions of the statute must be strictly complied -with, to charge a nonresident with constructive notice by publication.— Cullwm v. Branch Bmih, 23 Ala. 797; Borgia v. Burden, 41 Ala. 322; Wright v. Olough, 17 Ala. 490; Ha/rtle%j v. Bloodgood, 16 Ala. 233; Butler v. Butler, 11 Ala. 668; 27 Wise. 558; 39 Wise. •313; 10 Nevada, 370; Wade on Notice, § 1030. If the record had shown proper notice, though the recital might be conclusive on a collateral attack, the want of notice might be investigated in equity. — D'lt/nldin v. Wilson, 64 Ala. 162; Bivens v. Tid/niore, 8 Ala. 745; Crofts v. Dexter, 8 Ala. 767. (2.) Even if the complainant had due and proper notice of the settlement, the allegations of the bill present a case for equitable relief, both on general principles of law, and under the express provisions of the statute. — Chambers v. Crooh, 42 Ala. 171, and cases cited; Dwnldm v. Wilson, 64 Ala. 162; Kennedy v. Krn-nedy, 2 Ala. 571; Townsend da Millilten v. Cowles, 31 Ala. 428; •5 Ala. 596; Bishop on Contracts, § 227. The defendant’s misrepresentations, though innocently made, were fraudulent in legal contemplation. — 16 Ala. 785; 22 Ala. 501; 9 Ala. 662.</p> <p>The alleged errors and mistakes in the settlement, against which relief is sought, were matters within the cognizance of the Probate Court; and a party to the settlement can not have equitable relief as to these matters, unless the allegations' of the bill acquit him of all fault or negligence. — King v. ¡Smith, 15 Ala. 264; Waring v. Lewis, 53 Ala. 615; OUs v. Da/rgan, 53 Ala. 178. The record shows that the complainant had notice of that settlement, by publication against her as a non-resident; and this was equivalent to actual notice. — Stabler v. Coolc, 57 Ala. 22. The allegations of the bill are not sufficient to bring the complainant within the strict rule, which requires that he shall negative all fault or negligence on his own part. — Otis v. Da/rga/n, and Waring v. Lewis, above cited; also, Bowden v. Perdue, 59 Ala. 409; Boswell v. Townsend, 57 Ala. 308. The bill was fatally defective, because its allegations show that the complainant’s husband was a necessary party, and that the other distrib-utees of the estate were also necessary parties. — High v. Worley, 32 Ala. 709; Colbert v. Daniel, 32 Ála. 314; Hartley v. Blood-good, 16 Ala. 233.</p>

Heard before the Hon. Thomas Cobbs. Tire bill in this case was filed on the 11th April, 18Y8, by Philip P. Gilchrist, against E. P. Shackelford, as the administrator de bonis non of the estate of Jolm J. McMahon, deceased, and the several heirs at law of said decedent; and sought to enjoin an action at law, which said administrator had brought against the complainant to recover the possession of a tract of land, and to compel a conveyance of the legal title to the land by…

Heard before the Hon. ThoMas Cobbs. The bill in this case was filed on the 26th April, 1876, by Mrs. Julia C. Sowell, a married woman, suing by her next friend, against Benjamin M. Sowell (her husband), Preston Cap-shaw (her father), and the partners composing the mercantile firm of Berry, Demoville & Co., a firm doing business in Nashville, Tennesseeand sought the reformation of a deed to a house and lot in the town of Athens, so as to make it show that it was not a…

Tried before the Hon. IT. O. Speaiíe. The appellants in this case, J. &. L. Whorley, recovered a judgment by default against William Greet, at the April term, 1874, and a writ of inquiry as to the damages was ordered, to-be executed at the next term; and at the next term, on the execution of the writ, the damages were assessed at $195.47.

Aiteax from tlie Probate Court .of Jackson. Tried before the lion W. L. MabtiN, Register in Chancery, ■sitting fro hue vice for the Probate Judge,who was disqualified by interest.

Heard before the Hon. Jomsr A. Foster. These two cases were consolidated by the order of the chancellor in the court below, and were argued and considered as one case.

Heard before the Hon. JohN A. Fostee. The original bill in this case was filed on the 10th November;. 1881, by the “Lane & Bodley Company,” a private corporation chartered under the laws of Ohio, against James M. Whitehead and Augustus C. Whitehead individually, and as-partners doing business under the firm name of Whitehead & Son; and sought to foreclose a mortgage on a house and lot in the town of Greenville, and on certain personal property therein particularly described.

Heard before the lion. N. S. Graham. The original bill in this case was filed on the otli February, 1881, by Peter W. Lyne, as the administrator of the estate of his deceased wife, Mrs. Sarah F. Lyne, against Isaac!).

Heard before the Hen. Thomas Cobbs. This case was before this court during the December term, 1880, on appeal by the defendants, Thomas Sawyers and others; and the decree of the chancellor was then reversed, and the cause remanded, because Mrs. Rebecca Baker, the wife of the complainant, was not joined with her husband, Henry Baker, as a complainant in the bill.

Heard before the Hon. N. S. GbaiiaM. The bill in this case was filed on the 10th April, 1882, by Mrs. Martha A. Buchanan, suing for the use of ~W\ L. Martin and others, against James M. Buchanan and his son, James A. Buchanan; and sought to set aside, as constructively fraudulent, a conveyance of a town lot in Scottsboro by one L. B. Jones to .said James A. Buchanan, on the ground that the purchase-money was in fact paid by said James M. Buphanan; and to .subject the…

Heard before the lion. Prioe Wiijuams, Jr. In the matter of the final settlement of the accounts and vouchers of G-eorge E. Werbom, as executor of the last will and testament of Adolph M. Solomon, deceased, to which he was cited by the widow, now Mrs. A. M. Pinney.

In. the matter of the estate of J ohn B. Hawkins, deceased, on the application of D, B. Campbell, as administrator with the will annexed, for an order to sell lands for the payment of debts.

Heard before the Hon. N. S. GrahaM. The bill in this case was filed on the 18th February, 1882^ by Rhoda Sullivan and others, children and grandchildren of Benjamin Lawler, deceased, claiming as residuary legatees under his will, against Benjamin F. Lawler, who ^was a son of said decedent; and prayed “ that said Benjamin F. Lawler be required to account to complainants, as residuary legatees under the will of said Benjamin Lawler, deceased, for their interest in the said…

<p>Dill in Equity by Distributees, against Administrators and other Distributees', for Account cmd Settlement of Estate.</p> <p>1. Suits by administrator or distributees; who may sue. — The title to the •personal effects of a decedent, and the right to maintain personal actions, are devolved by law on the personal representative; and the general rule is, that he alone is authorized to demand, receive, collect, disburse and ■‘distribute the personal assets and claims of the estate; and while there are recognized exceptions to this rule, in which administration may be dispensed with, and other cases in which, the personal representative being estopped, or under disability to sue, a court of equity will lend its ■aid for the discovery and utilization of assets, a bill by distributees must :aver the facts necessary to bring the case within one of those exceptions.</p> <p>2. Discovery; when bill lies for. — A bill for discovery alone must not ■only aver the facts as to which á discovery is sought, and that those facts .are within the knowledge of the defendant, but must also allege that they can not be proved without his answer; and this allegation, if denied, .must be proved.</p>

<p>Appeal from the Chancery Court of Madison.</p> <p>Heard before the Hon. N. S. Graham.</p>

Tried before the Hon. H. C. Speaice. This action was brought by Richard F. Fowler, against William H. Stovall, and was commenced before a justice of the peace, on the 24th March, 1880.

<p>Bill in Equity hy Purchaser, for Specific Performance of Contract for Sale of La/ncl, a/nd for Partition.</p> <p>1. Purchase pendente lite. — A purchaser of land from a party to a pending suit, in which the title or an interest therein is involved, is concluded by the decree afterwards rendered, to the same extent that his vendor is concluded.</p> <p>2. Conclusiveness of decree in chancery. — When the complainant voluntarily dismisses his bill, the decree dismissing it “is very like a voluntary nonsuit at law, which does not bar a second suit; ” but, where the decree recites that the cause “ again came on to be heard, on the papers formerly read, and the answer of the defendant, with the exhibits filed with said answer, and with general replication to said answrer, and upon the report of the master commissioner, made in pursuance of the decre-tal order of the last term, and was argued by counsel;” and then proceeds, “ on consideration whereof, and on motion of the plaintiff, the court doth adjudge, order and decree, that the bill of plaintiff be dismissed, and that he pay to the defendant his costs in this behalf expended, but the defendant is not to be barred or precluded by this decree from asserting or recovering, in any proper suit, any balance which may be found due him by the plaintiff, as set out and asserted in the answer of said defendant, growing out of the account asked for in said'bill; ” this, it seems, is not a' voluntary dismissal by plaintiff, but'rather only shows that he moved for a decree in the cause.</p> <p>3. Proof of handwriting by comparison. — When the genuineness of a writing or signature is disputed, extraneous writings, though admitted to be genuine, can not be presented to the court or jury, nor shown to a witness, that he may institute a comparison between them and the disputed one.</p> <p>4. Same. — A person who has seen another write, or who knows his handwriting, may express his opinion as to the genuineness of a disputed signature, though he be not an expert; and experts may go further —may institute comparisons between the disputed writing and those admitted to be genuine, and give their opinion whether both were written by the same person, or whether a particular writing or signature is genuine or forged.</p> <p>5. Waiver of objections to illegal evidence. — “ Parties may try their controversies on illegal evidence, if they choose to do so; ” and if they do not object to illegal evidence when offered, the court may properly consider it.</p> <p>6. Impeaching and sustaining witness . — Whan the testimony of a witness has not been impeached, evidence should not be received to sustain his credibility.</p> <p>7. Revision of chancellor’s decision on facts. — This court will not reverse the chancellor’s decision on a question of fact, unless clearly convinced that he erred; and this general rule applies in this particular case with greater force than usual, since the chancellor had before him the original writing, the genuineness of which was in issue, and other writings admitted to be genuine, none of which are before this court.</p> <p>8. Specific performance of contract. — A court of equity will not specifically execute every contract into which parties may lawfully enter; nor does it necessarily follow that a specific performance will he decreed, because a rescission has been refused at the instance of the defendant, in a former suit between the parties, and that decree is binding as res adjudi-cata. It is always a matter within the judicial discretion of the court, whether to grant or refuse a specific performance; and it may and should he refused, unless the contract is not only legally binding, but also fair, just, and reasonable in all its parts; in other words, there must be “ a valuable consideration, particularity, certainty, mutuality, and a necessity ior performance.” ■</p> <p>9. Same. — A specific performance is refused in this case, because the1 evidence is held insufficient to show that the contract was supported by an adequate consideration, and was fair and just in all its parts.</p>

Tried before the Hon. H. C. Speake. This action was brought by James Woods, against Charles B. Hayes, and was commenced on the ,15th July, 1881.

Tried before the Hon. L. F. Box. This action was brought by Andrew J. and P. A. Callan, . against Fleming McDaniel, to recover the possession of a tract of land, with damages for its detention; and was commenced on the 27th January, 1881.

Heard before the Hon. N. S. GeaiiaM. The bill in this case was filed on the 10th January, 1881, by Joseph B. Kelly and Fleming J. Kelly, sons of Russell J. Kelly, deceased, against Mrs. Eliza J. Karsner, who was their sister, George W. Karsner, her husband, and Mrs. Keziali W. Kelly, who was the widow of said Russell J. Kelly; and sought to enforce an alleged trust in a tract of land, for the equal benefit of the complainants and Mrs. Karsner, and to have the land sold for…

<p>Appeal from the Circuit Court of DeKalb.</p> <p>Tried before the ITou. Leroy E. Box.</p> <p>This action was brought by James M. Hawk against the appellant, a domestic corporation, to recover damages for personal injuries sustained by the plaintiff by being thrown, or falling, from the platform of a passenger car at Yalley Head, to which station he had travelled as a passenger from Eort Payne, another station on the defendant’s road, on the 10th December, 1879. The defendant pleaded, 1st, not guilty; 2d, “ that the injuries to plaintiff now complained of, if any he received, would not have occurred without his fault or negligence, and that his fault and negligence contributed, proximately and directly, to produce said injuries, and said injuries were not the result of any wanton, reckless or intentional act done by this defendant, its agents or servants3d, the statute of limitations of one year. Issue was joined on all these pleas.</p> <p>The original summons was sued out on the 25th October, 1880; but its service was set aside by the court, at the next ensuing term, and leave given to the plaintiff to issue an alias; and another writ was issued on the 25th June, 1881, which is in form an original, and not an alias. On the trial, as the bill of exceptions recites, the defendant offered this last writ in evidence, as showing the commencement of the action; and objected to the admission of the former writ, when offered in evidence by the plaintiff, “ on the ground that the same was illegal, irrelevant, and inadmissible under the issues joined.” The court overruled this objection, and allowed the former writ to go to the jury as evidence; and also permitted the plaintiff to prove that the service of that writ had been set aside by the court, as stated, and leave granted to issue an alias. On this evidence, “the court charged the jury, of its own motion, that the summons and complaint dated the 25th June, 1881, was not on its face an alias summons and complaint, but that the jury could look to the summons and complaint dated the 25th October, 1880, to see-whether that of the 25th June was an alias; and if the jury found that this last writ was an alias, then the plea of the statute of limitations was avoided.” To this charge, and also to the admission of the evidence objected to, exceptions were reserved by the defendant.</p> <p>The plaintiff testified as a witness for himself, and stated the circumstances under which he was injured, and he introduced two witnesses who were present at the time the accident occurred ; while the engineer' and the conductor of the train were examined as witnesses foi the defendant. There was no conflict in the testimony of these several witnesses as to the material facts, which are stated in the opinion of the court. The defendant requested the following charges, which were in writing: (1.) “Negligence consists either in doing what a man of ordinary intelligence, care and prudence ought not to do, and would not do, or in omitting to do what a man of ordinary intelligence, care and prudence ought to have done, and would have done; and if the plaintiff was guilty of either of these kinds of negligence, and thereby contributed, proximately and directly, to produce the injuries of which he complains in this suit, then the jury ought to find a verdict for the defendant, although they may believe that it was possible for the engineer to have stopped the train precisely at the depot, and that the engineer honestly and in good faith tried to do so, but failed on account of the wet weather.” (2.) “ If the plaintiff, by ordinary care, and by ordinary observance of the known rules and regulations of the defendant corporation, could and would have avoided the injuries of which he here complains; and if, by his failure to exercise such ordinary care, he contributed proximately and directly to produce the injuries of which he here complains; then, upon this state of facts, the jury ought to find a verdict for the defendant, although they may believe all the evidence as to any alleged negligence of the conductor or engineer.” The court refused each of these charges, and the defendant excepted to their refusal. The refusal of these charges, and all the other rulings of the court to which exceptions were reserved, are now assigned as error.</p>

Tried before the Hon. Leroy F. Box. This was a motion by Stephen C. Allgood, as county superintendent of education of said county, against Jeremiah Bailiff, “late tax-collector of said county,” and several other persons, as sureties on his official bond as such collector, “for the sum of $482.90, with interest thereon from the 1 st day of May, 1880, and twenty per-cent, damages thereon, for the failure of said Jeremiah Ratliff, tax-collector as aforesaid, to pay over to said…

Tried before the Hon. ¥m. L. Whitlooií. This action was brought by William Balcer, against Eliza Keith, Joseph Keith, Lewis Mallory, and Austin Caldwell, to recover the possession of a tract of land, particularly described in the complaint; and was-commenced on the 7th February, 1880.

Tried before the Hon. ¥it. E. Claeice. In the matter of the petition of Mrs. Margaret Riordon,, widow of John Riordon, deceased, selecting certain lots in the city of Mobile, of which her husband died seized and possessed, and praying that the same might be set apart to her as a homestead, “free and exempt from all the debts of the said John Eiordon.” The petition was filed on the 19th November, 1878, and alleged that said John Eiordon died, intestate, on the 10th September,…

Heard before the lion. Thohas Cobbs. The bill in this case was filed on the 15th February, 1882, by David A. Hendricks, and sought a divorce from his wife, on the ground of voluntary abandonment for more than two years before the filing of the bill.

Tried before the Pión. H. 0. Speaice. In this case, as the record shows, a petition was filed with the clerk of said court, on the 19th June, 1882, by Laura P. A. Lanier and others, containing the following allegations and prayer: “ Your petitioners represent, that on the 13th September, 1881, Mrs. Martha T. Russell filed in the Probate Court of said county her petition for the probate of a paper writing, purporting to be the last will and testament of Missouri ~W.…

Tried before the Hon. O. J. Semmes. The appellant in this case obtained a judgment in said City Court, during its April term, 1881, against Lawrence McGet-rick, for $683.10; and sued out a garnishment against J. Pollock & Co., a mercantile partnership, as the debtors of said McGetrick, which was served on them on the 26th May, 1881.

Tried before the lion. O. J. Shjimes. This action was brought by Wiley 0. Tunstall, against the appellant, a domestic corporation; and was commenced on the 18th May, 1878. The complaint contained the common count for money had and received, and two special counts, each averring the eircirmstances under which the money sued for was •collected and received by the defendant.

Heard before the Hon. N. S. GrahaM. The original bill in this case was filed on the 12th January, 1878, by Thomas J. McClellan, as a… Held: that, although the death of Mrs. Lipscomb, before the rendition of judgment in the attachment suit, destroyed the lien of the attachment-, and the complainant, acquired no title by his purchases at the sheriff's sale, yet his bill might he maintained as a creditor's hill to set aside a fraudulent conveyance, lie being a judgment…

Api'KAR from the Circuit Court of Mobile. Tried before the lion. II. T. ToclMIN.

FeoM the Circuit Court of Colbert. Tried before the Hon. II. C. Spkake.

From the Circuit Court of Lawrence. Tried before the Hon. II. C. Speaicic. The defendant in this case was indicted for carrying a pistol concealed about his person, and ■ pleaded not guilty to the indictment.

Tried before the Hon. Wxr. E. Clarice. This was a prosecution under the bastardy statute (Code, §§ 4071- 93),instituted on the complaint of Josephine Ladnier, who made oath before a notary public (and ex officio justice of the peace) “that she is a single woman, and a resident of said county; that she was delivered of a female bastard child in said county, on or about the 5th February, 1880, and that William 0.

Apujbal from the Circuit Court of DeKalb. Tried before the Hon. Lukov E. .Box. This prosecution was commenced before a justice of the1 peace, on the 3d August, 1882, on the complaint of Maria Collins, alleging that she had given birth to a bastard child, and that Joseph Collins was its father. The defendant was required by the justice to give bond for Iris appearance, at the next ensuing term of the Circuit Court, to answer the charge.

<p>From the Circuit Court of Lauderdale.</p> <p>Tried before the Hon. H. C. SpeaKE.</p>

Tried before the Hon. H. T. ToulmiN. This action was brought in the name of the State of Alabama, against Seth J. Parker, A. M. Wing, and F. P. Baker was commenced on the 17th August, 1879, and was founded on an official bond executed by said defendants, — Parker as tax-collector of said county, and the other defendants as his sureties, — which, as set out in the complaint, was in these words : “ Know all men by these presents, that we, Seth J. Parker, A. M. Wing and F. W.…

Tried before the Hou. ¥m. E. OlabKe. On the 29th October, 1881, a petition was filed and presented to the presiding judge of the Mobile circuit (Hon. H. T. Toul-miN), in the name of the State, on the relation of John R. Tompkins, praying a mandamus against S. Graham Stone, as county treasurer of Mobile, commanding and requiring him, as such treasurer, to receive, number and register a claim held by the relator, which he insisted was a lawful charge on the fine and forfeiture…

The constitutional provision perpetually disfranchising a citizen is highly penal. — Ex parte Dorsey, 7 Porter, 293; Cummings v. Missouri, 4 Wall. 177. Like other penal laws, therefore, it must be strictly construed. — BetUs v. Taylor, 8 Porter, 564; Gu/nter v. Leekey, 30 Ala. 597; Smith v. Causey, 22 Ala. 568.

<p>Appeal from tbe Chancery Court of Madison.</p> <p>Heard before the Hon. N. S. Graham.</p>

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

Fboh the Circuit Court of Dallas. Tried before the Hon. JohN Moore. The defendant in this case was indicted for the larceny of an ox, the personal property of Peter Monk; pleaded not guilty, .and was tried on issue joined on that plea.

Fb,OM the Circuit Court of Madison. Tried before the Hon. FI. C. SpeáKE. The indictment in this case contained two counts; the first charging, that the defendant, “Dixie White, before the finding of this indictment, broke into and entered the dwelling-house of Ben. Matthews, with intent to steal; ” and the second, that he “unlawfully and feloniously took and carried away a watch, of the value of over twenty-five dollars, the property of Ben.

From the City Court of Mobile. Tried before the Hon. O. J. Semmes.

Heard before the Hon JohN A. FosteR. The original bill in this case was filed on the 5th January, 1882, by Thomas H. Lake, against the Security Loan Association, a domestic corporation organized under the general statute (Code, §§ 1937-43) in June, 1873; and sought an account and redemption under a mortgage, which the complainant had executed to secure a loan made to him by the association, and to enjoin a sale of the mortgaged property under a power in the mortgage.

Heard before the Hon. Joi-m A. FosteR. The bill in this case was filed on the 17th January, 1882, by James Talcott, “ in behalf of himself and all other creditors of the late firm of J. Frenkel & Co., who will become parties complainant hereto, and who will contribute to the costs of this cause,” against the persons composing the late firm of J. Frenkel & Co., the partners composing the firm of A. & B. Moog, M. J. Goldsmith, and several other persons; and sought to set aside…

The record does not show the name of the presiding judge. In this case, as the record shows, an action was commenced in said court on the 6th January, 1811, in the name of John 0. Wilson, against Mrs. Celestine Eslava; and a judgment by default was rendered against the defendant in said action, on the 16th January, 1872.

<p> Indictment for Trespass on Crop T>y Stock. </p> <p>1. Permitting stock to trespass on lands inclosed by common fence; character of fence. — Under the statute which makes it a misdemeanor for any person occupying or cultivating lands under a common fence with others, to “ turn stock of any kind into such inclosure, or knowingly suffer such stock to go at large therein, without a sufficient guard to prevent injury to crops” (Code, § 4414), though the inclosing fence should be substantial, it is not necessary that it should be a statutory fence (lb. § 1580).</p> <p>2. Same; constituents of offense. — A conviction can not be had under this statute, on proof that the defendant, acting in good faith, suffered his hogs to range at large in an extensive woodland, adjoining the inclosed lands, whence they made their way into the inclosed lands through defects in the common fence.</p> <p>3. Same; damages and fine. — The damages inflicted by the stock, which the statute declares “shall be held a part of the penalty imposed by the court, and shall go to the party injured,” are not a part of the fine, but are given in addition to the fine.</p>

From the Circuit Court of Wilcox. Tried before the Hon. JohN Moore. The appellants in this case, Lewis Walker and Cato Sellers, were indicted, jointly with several other persons, at the November term of said court, 1875, for arson, in setting fire to the county jail, where they were at the time confined under crimi-inal charges.

Feom the Circuit Court of Perry. Tried before the Hon. JoitN MooRe. The indictment in this case charged, in a single count, “ that Perry Underwood, alias Charley Williams, feloniously took and carried away a cow, the personal property of Ann Fooley.” The defendant pleaded not guilty, and issue was joined on that plea.

<p> Indictment for Gaming. </p> <p>1. Playing cards at public places. — A room in a house belonging to the proprietor of a hotel or tavern, and used by him at the time for the accommodation of guests, is appurtenant to the hotel or tavern, and within the statute against playing cards at hotels and other public houses and places (Code, § 4207), although situated on a separate lot, eighty or ninety feet from the hotel, and never before used for the accommodation of guests.</p>

Heard before the Hon. Charles Turner. The bill in this case was tiled on the 6th December, 1875, by Eliza M. White and others, children of Caleb E. White, deceased, who, being infants, sued by their mother as next friend, claiming as legatees under the will of Mrs. Eliza F. McNeill, deceased; against Francis G. Foxworth, both individually and as executor, and against his wife and children, and several other persons claiming under or through him ; and sought to set aside a…

Appeals from the Circuit Court of Perry. Tried before the Hon. JohN Moore. These several cases (Wollner, HirscKberg On the trial, as the bill of exceptions shows, the plaintiffs read in evidence a certified transcript of the proceedings had in the chancery cause, under which the defendant was relieved of the disabilities of coverture.

Tried before the Hon. S. W. JoHN, an attorney of the court, selected by the parties on account of the disqualification of the presiding judge. This was a statutory trial of the right of property in and to three bales of cotton, between F. J. Gordon, plaintiff in attachment against Ivey Fuller, and A. S. Nordlinger as claimant. The plaintiff’s attachment was issued by E. w. Nicolson, a notary public, and ex officio justice of the peace, and was returnable to the Circuit Court.

IN the matter of the petition of Mrs. Abigail S. Wiggins, the widow of James Wiggins, deceased, for an assignment of dower in the lands which belonged to her said husband at the time of his death. James Wiggins died.in July, 1869. The petition was filed in September, 1882, and was contested by some of the heirs.

In this case, Prince Dunklin applied by petition and motion to this court for a writ of mcmdaonus, to be directed to ITon. JoNA. HaralsoN, the presiding judge of the City Court of Selma, commanding him to issue a writ of habeas corpus as prayed by the petitioner, to inquire into the legality of his imprisonment in the county jail of Dallas.

Feom the Circuit Court of Madison. The material facts in this case are stated in the opinion of the court. The transcript of the record has never come into the hands of the reporter.

Tried before the Hon. John- Mooes. This action was brought by R. W. Atkinson, against D. P. Jones, to recover a mule named John, of the alleged value of $60, with the value of the hire or use thereof during the defendant’s detention; and was commenced on the 19th May, 1879. On the first trial of the cause, the plaintiff had a verdict and judgment; but the judgment was reversed by this court, and the cause was remanded. — Jones v. Athinson, 68 Ala. 167.

The record does not show the name of the presiding judge. The indictment in this case was found at the March term of said court, 1881, and charged that the defendant, Joseph Bauer-man, “ an immigrant, and a citizen of North Carolina, who had contracted with William M. Carney, in said State of North Carolina, to serve him as a laborer, for twelve months, in the State of Alabama, at and for a compensation of twenty-five dollars per month, and having obtained from said Carney…

Tried before the Hob. P. G. Wood. In the matter of the petition of Anna M. Gayle, as the ad-ministratrix of the estate of Lou Peese Gayle, deceased, for an order to sell lands for the payment of debts.

Heard before the Hon. JohN A. Fosteb. The bill in this case was filed on the 22d November, 1882, by G-oetter, Weil & Co., a mercantile partnership doing business in the city of Montgomery, as a creditor at large of M. H. Jacoby, against said Jacoby and Mark Weis; and sought to set aside, on the ground of fraud, a sale and transfer of his entire stock of goods by said Jacoby to said Weis; and also an injunction to prevent the defendants from removing or disposing of the…

Api>eal from the City Court of Selma. Tried before the Hon. JoNA. PIaealsoN. This action was brought by the Bank of Mobile, a domestic corporation, against Starke PI. Boykin; and was founded on a promissory note signed by said Boykin as maker, and in these words: “Mobile, Ala., January 27th, 1880. “ Twenty-five after date, I promise to pay to the order of B. 0.

From tlie City Court of Montgomery. Tried before the Hon. Tiros. M. AreiNgtoN. Tlie indictment in this case charged, in a single count, that the defendant “did embezzle, or fraudulently convert to his own use, a certain ox or steer, the personal property of H. Gr. Stickney, which had been placed in his possession, to be by him driven or conveyed from Lowndes county to the city of Montgomery, and there by him delivered to said H. Gr.

Heard before the Hon. H. Austill. The original bill in this case was filed on the 8th May, 1878, by Mary R. Norwood, a married woman, suing by her husband as next friend and trustee, against John Nininger, A. R. Ninin-ger, and James Magee; and sought to enjoin and abate an embankment and certain ditches, which the defendants had con-strueted on lands belonging to them, and by which, as the bill alleged, the water falling on complainant’s lands, and naturally emptying into a…

<p> Action for Breach of Special Parol Contract. </p> <p>1. Parol evidence as to consideration of deed. — -The consideration clause of a deed is always open to unlimited explanation, except for two purposes : 1st, a party to the deed is not permitted to prove a consideration different from that expressed, if thereby the legal effect of the deed is varied; 2d, when payment of the consideration is recited in the deed, the grantor is not allowed, by disproving that recital, to establish a resulting trust in himself.</p> <p>2. Same. — The owner of land having conveyed a lot to a railroad company, reciting in the deed, as its consideration, “one dollar” in hand paid, “ and the benefits which will arise to the grantor from the ownership by the grantee of the property hereby conveyed,” the deed does not estop him from showing, as an additional consideration, that the grantee verbally agreed to grade part of an adjacent lot belonging to the grantor, and to remove and rebuild that portion of his warehouse which was situated on the lot conveyed by the deed, and maintaining an action at law for the breach of such verbal agreement.</p>

Tried before the Hon. Thos. M. ArriNGTON. This action was brought by Nicholas G-achet, who was a planter and farmer residing in Bullock county, against the ap-pellees as late partners, a mercantile partnership doing business in the city of Montgomery, to recover damages for the breach of an alleged warranty on the sale of two hundred and fifty bushels of “ rust-proof oats ” by the defendants to the plaintiff, in February, 1880; and was commenced on the 7th March, 1881.

Ax’pbal from the Chancery Court of Butler. Heard before the Hon. Jorm A. Foster.

Heard before the Hon. N. S. Geaiiam. The bill in this case was filed on the 2d June, 1882, by Jefferson D. Stoudenmire, against his late guardian, Warren L. DeBardelaben; and sought to open a final settlement of the guardian’s accounts, which had been made in the Probate Court of said county, on the 9th May, 1881, and to have the accounts re-stated and settled.

Heard, before the Hon. Thomas Cobbs. The bill in this case was filed, at what time the record does not show, by George Junkins, against Jesse B. and Charles W. Lovelace, as partners doing business under the firm name of J. B. & O. W. Lovelace, who were the successors in business of Crenshaw, Lovelace & Co.; and sought, 1st, a redemption and account under a mortgage executed to said partnership by the complainant’s deceased brother, James Junkins, on a tract of land which he…

Heard before tlie Hon. H. Austill. The bill in this case was filed on 14th May, 1878, by James-.

Tried before the Hon. JaME^BCobb. This action was brought by€iRippellants, suing as partners, against Thomas Dickerson and Preston… Held: on the terms of the contract of 1878); and jjfchey held over after they attained their majority, under thisjBfesumption ; then the jury may look to these, together with alWcher acts and circumstances in the case, to show whether oj^Bthe defendants affirmed said contract after they attained tbHHnajority ; and if they are satisfied,…

Tried before the Hon. Joi-nsr P. Hubbaed. This action was brought by James W. Posey, against W. GL Beale, as the keeper of a public hotel in the town of Evergreen in said county, called and known as the “ Evergreen Hotel,” to recover damages for money lost by the plaintiff while a guest at, said hotel, in May, 18J9, and which was alleged to have been stolen by some one or more of the defendant’s servants, or to have been lost by the carelessness or negligence of the…

<p> Action for Damages for Obstruction of Private Sewer. </p> <p>1. Easement in private sewer.- — A written contract between the owners of two adjacent lots, by which it is stipulated that a sewer shall be constructed, at their joint expense, through the lower lot, for the drainage of water from the upper, operates in the nature of a grant, and passes to the owner of the upper lot, when the sewer has been constructed, a private easement in the lower, or an incorporeal interest in the soil over which the sewer runs.</p> <p>2. Possession as evidence of title; unrecorded deed. — The open, notorious, and exclusive possession of land by a purchaser, claiming the land as his own, though holding under an unrecorded deed, is constructive notice of his title, whether it be legal or equitable; but, if the purchaser and his vendor are both in possession when the deed is executed, and there is no change in the possession after its execution, a third person would not be charged with constructive notice of the deed, and would be entitled to protection against it.</p> <p>3. Contracts of infant; disaffirmance of. — To avoid a deed, or other executed agreement, entered into during his minority, an infant is not required to do any act during the continuance of his minority: any^voidable executed contract may be disaffirmed by him, if it relates to personal property, either before or after reaching his majority; but he can not conclusively avoid a deed or sale of lands until after he has attained his majority.</p> <p>4. Same. — Such voidable contract may be affirmed, by unequivocally recognizing its continued existence and binding force; and it may be disowned by some distinct and positive act, leaving no room for doubt as to the intention — such as notice, suit, entry, plea, or other act of unmistakable intention. In case of an executed conveyance of real estate, or any interest therein, mere acquiescence will not operate as a ratification, unless continued until the statute of limitations has effected a bar; a fortiori, when he has in the meantime parted with the title.</p> <p>5. Same. — If an infant creates by writing a private easement in his land, and afterwards conveys the land by absolute deed to another, and ratifies the deed after attaining his majority, his subsequent ratification of the contract creating the easement is inoperative as against the grantee-in the deed.</p> <p>6. Revocation of easement.- — A sewer having been constructed through defendant’s lot, at the joint expense of himself and plaintiff (who owned the adjoining upper lot), under a written agreement entered into while defendant was an infant, his disaffirmance of the contract on attaining his majority would operate as a revocation of the easement created by it; and plaintiff’s continued use.of the sewer, after such disaffirmance and revocation, would be a nuisance, which defendant might abate by obstructing the sewer.</p>

Tried before the Hon. John MooRE. This action was brought by the appellants, suing as partners, against the appellees as partners, doing business under the firm name of N. J. Bell & Co.; and was commenced on the 19th May, 1882.

Heard before the Hon. Jxo. A. Foster. The hill in this case was-filed on the 12th July, 1882, by George A. Pearce, acting as receiver under a decretal order made by said Chancery Court, against John Gamble and John Bolling, attorneys at law and solicitors in chancery, practicing as partners; and sought to enforce against the defendants an alleged trust in favor of Preston & Stetson, in a tract of land which had been sold under execution in their favor against one John W.…

Heard before the Hon. Jorra A. Fostek. The bill in this case was filed on March 10th, 1882, by the partners composing the firm of Lehman, Durr & Co., a partnership doing business in the city of Montgomery, against A. 0. Harwell and L. S. Driver, who were resident citizens of Coosa county; and against the partners composing the firm of Tatum & Wilkinson, a mercantile firm doing business in the city of Montgomery, where the partners also resided.

Tried before the ITon. JohN Moobe. •This was a statutory trial • of the right of property in two horses, on which an execution was levied in favor of Poliak & •Co., against M. A. Graves, and to which a claim was interposed by Mrs. Dolsica R. Graves, the wife of the defendant in execution. The plaintiffs’ judgment was rendered on the 3d November, 1881, and was founded on the defendant’s promissory note dated April 3d, 1880.

Heard before the Hon. Juro. A. Fosteb. The bill in this case was filed on September 7th, 1880, by Patsey Williams, against the widow and children of Daniel Boyle, deceased; and sought the foreclosure of a mortgage, which said Daniel Boyle had executed to the Central Building and Loan Association, a private corporation organized under the general laws, and doing business in the city of Montgomery.

Tried before the lion. Wm. E. Claeke. The record in this case shows, that two separate actions were •commenced on the 29th December,… Held: and had and received the money sued for, as legatees of John Martin, deceased, under the will made in 1873, and duly probated in Louisiana, and which was afterwards annulled and cancelled in the Supreme Court of said State; and that said Martin was. domiciled in Louisiana at the time of his death, and had been for twenty years prior…

Heard before the Hon. JoiiN A. Fosteb. The bill in this case was filed on 11th August, 1881, by Mrs. Mary E. Turner, against W. W. Wilkinson, Benjamin F. Kil-gore, and John F. Barganier; and sought to have a deed for a tract of land executed by the complainant to said Wilkinson, which was absolute on its face, declared to be a mortgage, and for a redemption and account under it.

Tried before the lion. Joim Moobe. This action was brought by Tristam B. McCall, “ as husband and trustee of Laura A. McCall, his wife,” against John W. Jones; and was commenced on the 1st June, 1882.

Heard before the Hon. JNo. A. Foster. The record in this case does not show when the original bill was filed, but the subpoenas to answer were issued on the 22d June, 1832; and though an amended bill was also filed, it is nowhere set out, nor does the record show in what particulars the original bill was amended. The bill was filed by George P. Weaver, against the partners composing the firm of Harold Brothers & Scott, and against Jesse Howard, Mrs. Mary Reid, and John El.

Heard before the Hon. JohN A. Foster. The original bill in this case was filed on the 29th August, 1876, by James A. McDade and others, surviving children of Nancy E. McDade, deceased, and grandchildren of James Mc-Dade, deceased, against Alexander W. McDade and Catherine L. Matthews; and sought a sale, for partition, of certain lands, in which the complainants claimed an interest as remainder-men, under a deed of trust executed by their said grandfather,, and an account of…

This was an application, by petition, by Patrick Robinson and W. T. ITatcbett (the latter in his representative character as adtainistrator of the insolvent estate of John Lawler, deceased], for a writ of mandamus directed to Hon. JoiiN A. FosteR, chancellor, presiding in the Chancery Court at Montgomery, requiring him to vacate and set aside a decree rendered in a cause pending in said court, in the matter of the apportionment of costs.

The record does not show the name of the chancellor who presided in the court below. ' The bill in this case was tiled on November 13th. 1878, by James R. Powell, against Urban L. Jones, I).

<p>Special Action on the Case for Damages, by La/ndlord against Purchaser of Tenant's Crop with Notice of Lien.</p> <p>1. Landlord’s relation to sub-tenant. — At common law, there was no privity of estate or contract between the landlord and the under-tenant of his lessee, nor could he maintain any action against such under-tenant for the recovery of rent.</p> <p>2. Landlord’s statutory lien and remedies against crop. — By statutory provisions (Rev. Code, §§ 2961-63), since modified in the interest of subtenants (Code, § 3476), a lien was given to the landlord, for the rent of the current year, on the entire crops raised on the rented premises, •whether raised by the tenant or by a sub-tenant; but this lien was given to the landlord for his own protection, and he can not be compelled to so ■exercise his statutory right as to protect or benefit another person who may have a lien on the crop of the under-tenant.</p> <p>3. Same; discharge of levy on crop of under-tenant. — The landlord having sued out an attachment to enforce his statutory lien on the crops, and having afterwards released the levy on the crops of under-tenants who had paid their rent to their immediate landlord, he does not thereby forfeit or impair his right to subject other portions of the crop, or to proceed against a third person who, having knowledge or notice of his lien, has received and sola a portion of the crop; and having brought an action on the case against a merchant who, having made advances to the under-tenants, had received and sold some of the crops raised by them, the latter has no right to insist that the demand shall be credited with the value of the crops so released iron the levy of the plaintiff’s attachment for rent.</p> <p>4. Apportionment of rent and statutory lien. — Under an entire contract for the rent of a plantation and a ferry appurtenant to it, at an aggregate price, the rent and statutory lien can not be apportioned.</p>

Tried before the Hon. James E. Cobb. This action was brought by Mrs. Elizabeth Patterson, against J. A. Kicker, to recover a mule named Gray, with damages for its detention; and was commenced on March 20th, 1882.

Heard before the Hon. JohN A. FosteR. The original bill in this case was filed on the 29th January, 1880, by Thomas Banks, against John Gindrat Winter; and sought to enforce an alleged vendor’s lien on a tract of land, for a balance of the purchase-money due by the terms of the written contract between the parties.

Tried before the Hon. James E. Cobb. This action was brought by William Wright, against “the City Council of Montgomery,” without other descriptive words; and was commenced on the 5th November, 1881.

Heard before the Hon. H. Austill. The original bill in this case was filed, on the 13th December, 1875, by Mrs.. Held: owned and possessed by said Phillips & Fariss as partnership property;” that the partnership of Phillips, Fariss & Co., “which -was formed by the addition of Robert C. Fariss to the firm of Phillips & Fariss, became the successors of said Phillips & Fariss, and held, owned and possessed said real estate as their partnership…

<p> Statutory Proceeding for Partition of Lands. </p> <p>1. Partition by Probate Court; where parties own unequal interests. Under its statutory power to make partition of lands among several joint owners or tenants in common (Code, §§ 3497-3507), the Probate Court has no jurisdiction to decree partition where the lands are not susceptible of division into equal parts, or parts of equal value; and this can not be done, where the parties own unequal interests — -as, where one of four joint owners, or tenants in common, has conveyed a part of his undivided interest to another. (Overruling Stimpson v. Malone & Foote, 60 Ala. 338.)</p>

<p>Appeal from the Chancery Court of Montgomery.</p> <p>Heard before the Hon. JouN A. Fosteb.</p>

Tried before the lion. Jas. E. Cobb. These two cases, involving substantially the same questions, were argued and submitted together. Each was a statutory-proceeding, instituted by the Montgomery Southern Railway Company, a domestic corporation organized under the general law (Code, §§ 1821-41), seeking to condemn lands for the right of way of its road ; the lands in one case belonging to W. D. Sayre, and in the other to A. S. jSayre and M. II. Sayre.

Tried before the Hon. LeROy F. Box. This action was brought by Edmund A. Wood, against the appellant, a domestic, corporation, to recover damages for its failure to deliver a certain quantity of corn, delivered to the defendant, as a common carrier, at Bangor, a station on its road near Blountsville, to be delivered to L. K. Moss, at Jemison, another station about eighty miles distant.

<p>Appeal from the Chancery Court of Lowndes.</p> <p>Heard before the Hon. JohN A. Fostbb.</p>

Heard before the Hon. N. S. Graham. The appeal in this case is sued out from a decree overruling a demurrer to the bill, and also overruling a motion to dissolve the injunction and dismiss,the bill for want of equity. The opinion states all the material facts.

Tried before the lion. ¥h. E. ClabKE. This action was brought by Bernard Moog, against Mrs. Julia A. Strang, to recover certain lots or parcels of land in the city of Mobile, particularly described in the complaint; and was commenced on the 13th May, 1882.

Heard before the Hon. H. C. Speaks, as special referee under the statue approved February 23d, 1881. — Session Acts 1880-81, p. 66.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on August 13th, 1878, by E. P. Shackelford, as the administrator of the estate of M. W. Mayes, deceased, and two other persons, claiming and suing as creditors of the insolvent estate of George M. Garth, deceased, against William S. Bankhead and his wife (Mrs. Catherine M., formerly the widow of said Garth), as the administrators of said insolvent estate, with the infant children and heirs at law of said…

Heard before the Hon. TiioMAs Cobbs. This case was before this court at its December term, 1880, and is reported, under the name of Jenhms v. Harrison, in 66 Ala. 345-361.

Appeai. from the Circuit Court of Madison. Tried before the lion. H. C. SpeaKe. This was a motion to set aside the levy of an attachment on certain personal property, described in the levy as “ one bay mare, about five or six years old, and one spring wagon.” The attachment was in favor of W. W. Totten & Brother, against M. S. Sale & Co.; and the levy was made on December 10th, 1881.

<p> Bill in Equity to enforce Vendor’s Lien on Land. </p> <p>1. Competency of party as witness, to prove transactions with decedent. Under a bill to enforce an alleged lien on land, filed by the personal representative of the deceased vendor, the defendant is incompetent to testify in his own behalf, as to any transactions between himself and the decedent (Code, § 3058), unless called to testify by the complainant.</p> <p>2. Objections to evidence; when and hoto made. — When interrogatories propounded to a party, as a witness in his own behalf, call for illegal evidence, objection should be taken before filing cross-interrogatories; but this rule does not prevail, when the illegality of the evidence is unknown, or is only disclosed by the answers.</p> <p>3. Same. — Objecting to interrogatories which call for illegal evidence, without more, is not sufficient to bring before the chancellor the question of the admissibility of the evidence: there must be, also, written exceptions signed by counsel, specifying the portions of the testimony sought to be suppressed.</p> <p>4. Same. — Motions to suppress testimony, founded on exceptions duly filed, are properly heard before entering on the trial; or, by consent, they may be heard and determined in connection with the main cause; but, when the parties proceed to a hearing by agreement, stipulating that the chancellor may disallow all illegal evidence, this “ rather loose practice has a tendency to cast on the chancellor so much unnecessary labor, that he may very justly refuse to act on such agreement.”</p> <p>5. Same. — Objections to evidence can not be raised for the first time in this court, but are waived when not properly taken before the chancellor.</p>

Tried before the lion. H. O. Speaice. . This was a contest as to the right to a homestead exemption in lands, between William R. Larkin, plaintiff in execution-against Lemuel G. Mead, deceased, and Mrs. Mary E. Mead, his widow (now the wife of C. C. Keel), and her two infant children, as claimants. The case was before this court, on a former appeal, at its December term, 1880, when the judgment ■of the Circuit Court was reversed, and the cause was remanded.

Appeai, from the Chancery Court of Madison. Heard before the Hon. H. C. Speake, as special referee, under the statute approved February 23d, 1881. — Session Acts 1880-81, p. 66.

Appeals from the Chancery Court of Madison. Heard before the Hon. N. S. Graham.

Heard before the Lion. N. S. Graham. This case was before the court at its December term, 1879, •on appeal from a decree dismissing the bill for want of equity; when the chancellor’s decree was reversed, and the cause remanded. — 63 Ala. 419.

FkoM the Circuit Court of Jackson. Tried before the Hon. H. C. SpeaKE.

<p> Statutory Trial of Right of Property in, Mule. </p> <p>1. Amendment of verdict.—A general verdict is always sufficient, when it responds in substance to every material fact involved in the issue; and the court may put it in proper form, with or without the consent of the jury; but, when the verdict is defective in substance, the court has no power to amend it, but should send the jury back for further deliberation; and if it is received, and the jury discharged, the court has no power to convene the jurors on a subsequent day, and let them perfect it.</p> <p>2. Same; form and sufficiency of verdict.—In detinue, or the corres-sponding statutory action for the recovery of personal property in specie, brought by two plaintiffs suing jointly, both must recover, or neither can ; and a claim to the property being interposed by a third person, a verdict in favor of one of the plaintiffs only is defective in substance, and can not be amended by the court; not can it be amended by the jury, on a subsequent day, after they have been discharged.</p>

<p>Appeal from the Chancery Court of Limestone.</p> <p>Heard before the lion. Thomas Cobbs.</p>

<p>Appeal from the Chancery Court of Lowndes.</p> <p>Heard before the Hon. JohN A. Fostee.</p> <p>The bill in this case was filed on the 21st May, 1880, by Mrs, Rebecca Turner, against William R. Flinn, Robert Flinn, and Henry Jones; and sought to foreclose a mortgage on a tract of land. The mortgage, a copy of which was made an exhibit to the bill, was dated the 4th October, 1871, and was executed by said W. R. Flinn alone; but the note which it was given to secure was signed by said W. R. Flinn, Henry Jones, and Bun-bury Flinn, as joint makers, and was payable on 1st November, 1872. The note was renewed several times, and the name of said Bunbury Flinn having been dropped, the balance due on the secured debt was evidenced by the joint note of said W. R. Flinn and Henry Jones, which was made an exhibit to the bill. The mortgage was in the possession of said W. R. Flinn when the bill was filed, and that fact was alleged in the bill; but it was alleged, also, that said mortgage had never been paid, satisfied, discharged, or surrendered, and that it was still a subsisting security for the balance due on the original debt. Robert Flinn was joined as a, defendant, under an allegation that he was in possession of the lands conveyed by the mortgage, “ claiming by and under some contract of lease or purchase from said W. R. Flinn.” Each of the defendants filed an answer, and each denied that the mortgage was a valid and subsisting security; though W. R. Flinn and Jones admitted that the note ■ made an exhibit to the bill showed the balance still due on the original note secured by it. Robert Flinn alleged that the mortgage had been satisfied and discharged long before he purchased the lauds from W. R. Flinn; that at the time of his purchase, in February, 1877, and before he paid the purchase-money, W. R. Flinn informed him that there had been a mortgage on the land in favor of Mrs. Rebecca Turner, but said that it had been discharged and cancelled, and produced •and exhibited to him the original mortgage, with Mrs. Turner’s receipt indorsed on it; and he claimed to be entitled to protection as a bona fide purchaser for valuable consideration without notice.</p> <p>The complainant’s receipt, indorsed on the mortgage, was in these words: “Received the within amount, November 17th, 1871.” In reference to this receipt, the answer of W. R. Flinn •contained these allegations: “ After the execution and delivery ■of said mortgage, complainant came to respondent, and told him that she desired to cancel and surrender said mortgage— that she had plenty of security without it; and thereupon she •cancelled said mortgage in writing, and surrendered it to respondent, and he has held it ever since,” The complainant herself thus testified in reference to this matter: “ I have not seen the original mortgage since November, 1871, when I placed it in the possession of said W. R. Flinn. At that time, one D. H. Hill, pretending to have some claim against me, brought suit against me, and garnisheed W. R. Flinn and Henry Jones, who were indebted to me as aforesaid. Thinking this claim an unjust one, and being unwilling to have my claim against said Flinn and Jones complicated in the ease, I made an agreement with said W. R. Flinn, who acted for himself •and Jones, in substance as follows: I agreed to cancel the •said mortgage, and deliver it to W. R. Flinn, who on his part agreed that the cancellation was to be considered in reality as a nullity, as no money had been paid on the secured debt, and no •other consideration for the cancellation was given. I complied with my agreement, by cancelling the mortgage, and putting it in his possession; and said W. R. Flinn agreed with me, at the same time, that he would return the mortgage to me whenever Hill ceased to prosecute his pretended claim against me.” "W. R. Flinn thus testified as to these matters: “ Complainant •came to me on the 17th November, 1871, and said that Buell (?) had threatened to sue her for a debt she owed him ; that she had security enough for the debt I owed her, exclusive of the mortgage on the land, and that she would cancel the mortgage, .so that I could take it cancelled to Buell, and thereby prevent him from garnisheeing me for her debt. She did cancel it, and told me she had no claim on the land, and that I could so state to others. I did show it to Buell and others, and told them that it had been cancelled. . I told said Robert Flinn, at the time of his purchase, that the mortgage had been cancelled, and exhibited the moi’tgage to him, witli the complainant’s receipt thereon indorsed.” It was admitted that a discharge or satisfaction of the mortgage had never been entered on the record.</p> <p>On final hearing, on pleadings and proof, the chancellor dismissed the bill; and his decree is now assigned as error.</p> <p>The indorsement on the mortgage is not a release, or acknowledgment of satisfaction, but is simply a receipt, and is open to explanation, at least between the parties. — 1 Brick. Digest, 860, §§ 809-10. It is fully ex1 plained, and it is shown that a greater part of the mortgage debt is still unpaid, leaving the mortgage a valid security for it, unless the purchaser can claim protection against it. The possession of the secured note, by the mortgagor, would raise the presumption that it had been paid; but no such presumption arises from his possession of the mortgage, which had been duly recorded. — Harrison v. Railroad (Jo., 19 N. J. Eq. 488 ; Pax-lieimer v. Gv/nn, 24 Mich. 372. The mortgage having been recorded, and no entry of satisfaction made of record, the purchaser was put on inquiry; and the receipt ought to have excited inquiry, since it was given long before the maturity of the debt, and had never been followed up by an entry of satisfaction on the record. The purchaser admits that he was informed there had been a mortgage on the land, and a man of ordinary prudence would have made further inquiry before completing the contract; failing to make any inquiry, he is chargeable with notice of all facts which inquiry would have developed.</p> <p>The facts make out a clear case of equitable estoppel. — Dickerson v. Oolgrove, 10 Otto, 578; Hendricks v. Kelly, 64 Ala. 388 ; Baker v. Humphrey, 11 Otto; 494; Cincinnati v. White, 6 Peters, 431; Brown v. Wheeler,. 17 Conn. 353; Lasselle v: Barnett, 12 Amer. Dec. 217. Receipts and discharges in writing must have effect according to the intention of the parties. — Code, § 3039; IIart v. Freeman, 42 Ala. 567.</p>

Tried before the Hon. II. C. SpeaKe. This action was brought by Mrs. Nannie A. Morgan and her infant children, suing by her as their next friend, against John M. Crowdér and Mrs. S. L. Davis; and was commenced on the 18th September, 1880.

Tried before the Hon. Leroy F. Box. This action was brought by William Dothard, against Philip-Denson and others, to recover the possession of a small tract of land, particularly described in the complaint; and was commenced on the 17th July, 1877. The defendants pleaded the general issue, and the statutes of limitation óf ten and twenty years; and issue was joined on these pleas.

AppiUl from the Circuit Court of Madison. Tried before the Hon. H. C. Speake. This action was brought by Mrs. E. C. Iiumes and others,, against Morris Bernstein ; and was commenced on the 11th July, 1871.

<p> Indictment for Renting or Allowi/ng Room to be used for Gaming Pxtrposes. </p> <p>1. Allowing room to he used for gaming purposes; who is “ owner or proprietor.” — -Under the statute which makes it a penal offense for any person, “being the owner or proprietor of airy house,' room,” &e., to rent or lease the same for gaming purposes, or knowingly to permit the same to be used for any such purpose (Code, § 4214), a conviction may be had against a person who has possession as a tenant or lessee.</p>

Tried before the Hon. H. C. Speake. The record in this case shows that, on the 12th June, 1879, an action was instituted in said Circuit Court, by summons and complaint, in the name of Emmett O’Neal, “ as administrator of John Harkins, and assignee of George W. Karqper,” against Fleming J. Kelly; that a judgment by nil dicit was rendered in said cause, on the 27th August, 1881, which recites that the defendant appeared and withdrew his pleas; that on the 9th November, 1881,…

ApplioattoN by Emmett O’Neal, as the administrator of the estate of John Harkins, deceased, for a wrrit of mandamus to the Circuit Court of Madison, Hon.H. C. Speaice presiding, to compel that court to vacate and set aside an order granting a statutory rehearing after final judgment in asuitlately pending in said court, wherein said O’Neal was plaintiff, suing “ as-administrator of John Harkins, and assignee of George W. Karsner,” and one Fleming J. Kelly was defendant.

Heard before the Hon. N. S. GiíaiiaM. The bill in this case was tiled on the 25th August, 1882, by 'William II.

Heard before the Lion. W. C. Ward, as special judge, selected by the parties on account of the disqualification of the presiding judge of the court.

Tried before the Hon. H. C. Speaick. This was a motion by William B. Martin, for a summary judgment against Thomas 0.

Heard before the Hon. John A. Foster. The original bill in this case was filed on the 9th August, 1879, by Maria L. Sloan, the wife of Edward A. Sloan, against her said husband, James II.