Volume 73 — Alabama Reports

Tried before lion. John P. IIubbarix Tbe appellant was indicted for burglary, and was tried and convicted. So far as disclosed by tbe bill of exceptions, there was no controversy on tbe trial in the court below, that tbe offense bad been committed, but tbe controversy was as to whether tbe defendant was tbe guilty agent; the evidence for the State tending to show that be was, and that for tjie defendant tending to show that be was not.

<p> Indictment for Violation of local Prohibitory Law. </p> <p>•1. Local prohibitory law construed; what act not prohibited. — Under tlie provisions of tbe statute, approved February 26th, 1881 (Pampli. Acts, 1880 — 1, -p. 171), making it unlawful for an}' person “ to make, sell, or otherwise dispose of any spirituous or malt liquors, or other intoxicating drinks,” within the counties of Dale and Henry, in this State, a conviction can not be had on proof that the defendant, at his own residence, in one of the counties named in the statute, gave to another two or more drinks of spirituous liquor.</p>

Tried before Hon. John Moore. At the fall term, 1882, of said court, Frank Shelton, the defendant in the court below, appellant here, was indicted for the murder of Lucy Shelton; and at the next term, he was tried, convicted of murder in the first degree, and sentenced to be hung.

<p>Appkal from Dale Circuit Court.</p> <p>Tried before Hon. II. D. Clayton.</p>

Tried before Hon. II. D. Clayton. Larkin Grant, the defendant in 'the court below, was indictedr tried and convicted for engaging in or carrying on • the “ business of distilling spirituous liquors otherwise than by the distilling of fruits, without a license,” etc. As recited by the bill of exceptions, “the State proved that, in the winter of 1881,. three or four, or five different times the defendant was seen at a certain place near his dwelling in Geneva county, engaged…

Tried before lion. Samuel II. Sprott. Gilbert Kpnan, the defendant, was indicted and tried for murder, and was convicted of murder in the first degree, and sentenced to imprisonment in the penitentiary for life. When the cause was called for trial, the defendant moved to quash the venire, but the court overruled the motion, and the defendant excepted.

Tried before Hon. James E. Cobb. The defendant in the lower court, appellant here, was indicted for an assault and battery “ with a weapon, to-wit, a gun ; ” and was convicted of an assault. The evidence for the State tended to show that the defendant was guilty of an assault and battery on the prosecutrix, but failed to' show whether or not a weapon was used.

Tried before Tíon. II. D. Clayton. At the fall term, 1880, of said court, the defendant, appellant here, was indicted for buying of receiving one hundred pounds of seed-cotton after the hour of sunset and before the hour of sunrise of the next succeeding day ; and at a.subsequent term he was tried and convicted.

<p> Indictment against Cleric of Circuit Coitrt under Section Jj.159 of the Code. </p> <p>1.. Failure of clerk of circuit court, to issue execution, not indictable. Section 3380 of the Code providing a penalty against the clerk of a circuit court, who fails to issue execution as prescribed by section 3181 of the Code, such dereliction of duty is not indictable under the provisions of _ section 4159 of the Code, making it a misdemeanor for that officer to fail “to perform any duty imposed on him, for the failure to perform which no other penalty is provided.”</p>

Tried before ílon. wm. E. Clarke. The indictment in this cause contains two counts, one charging the defendant with an assault and battery on George Carrington, and the other with resisting said Oai’rington, a constable of said comity, while attempting to execute a warrant of arrest issued by Leon Napier, a justice of the peace, for an assault and battery. The cause was tried, and the defendant convicted of the offense charged in the second count.

Tried before Hon John Moore. The defendant was indicted and tried for the larceny of a heifer, the property of William Lavender, thew trial resulting in a conviction.

Tried before Hon. ¥m. S. Mudd. At the spring term, 1881, of said court, the defendant was indicted for engaging in the business of retailing vinous, spirituous or malt liquors without a license; and, at a subsequent term, he was tried and convicted.

Tried before Hon. James E. Cobb. At the spring term, 1882, of said court, Bill Creen, the-defendant in that court, appellant liere, was indicted for the murder of John Tanner; and at a subsequent term lie was tried and convicted .of murder in the second degree, and sentenced to-imprisonment in the penitentiary for twelve years.

Aprkai, from Crenshaw Circuit Court. Tried before I-Ion. John P. Hubbard. Margaret, Mack and Alexander McLeod brought this action against Hugh McLeod, to recover damages for an alleged malicious prosecution of the plaintiffs by defendant for the offense of trespass after warning; and the cause was tried on issue joined on the plea of not guilty, the trial resulting in a verdict and judgment for the plaintiffs.

Tried before Hon. II. D. Clayton. The defendant was indicted for trespass after warning upon the lands of one Brooks. On the trial the State introduced the prosecutor, Brooks, as a witness, for the purpose of proving the warning and the trespass.' To his examination the defendant objected, on the ground that, in case of conviction, he would be entitled to the fine; but the court overruled the objection, allowed the witness to be'examined, and the defendant excepted.

Tried before Hon. LeRoy F. Box. The indictment in this cause was found at the spring term, 1880, of said court, and charges that, before the finding thereof, the defendant, “by means of temptations, deceptions, arts, flattery, or a promise of marriage, did seduce the prosecutrix, an unmarried female.

Application to this court for writ of habeas corpus and bail by party indicted for murder.

Tried before Hon. LeKoy F. Box. On 4th November, 18.78, Ilerzberg, Simpson & Co. sued out an attachment before a justice of the peace against William M. Hope, which was levied on a bale of cotton as the property •of the defendant. This cotton was claimed by W. P. Shahan, and, on his making the statutory affidavit and bond, was delivered to him by the sheriff.

Tried before Hon. Wm. E. Clarke. Tliis was a proceeding instituted before the Board of Bevenue and Boad Commissioners of Mobile county by the Louisville & Nashville Bailroad Company, seeking to have vacated and set aside, as illegal and unauthorized by law, certain assessments made by the tax collector of said county against the Mobile, New Orleans & Texas Bailroad Company and its successors, for taxes on tbe income of said railroad from 1874 to 1881, both inclusive, it…

Tried before Hon. H. D. Clayton. The 'nature of this action is sufficiently indicated in the opinion. The defendants filed the following, among other pleas: 1.

Tried before Hon. Le Roy E. Box. This was a proceeding, commenced before the mayor of the city of Birmingham, against the appellant for a violation of an ordinance of said city, requiring its citizens of a given age to' perform certain work on the streets, and imposing a penalty for •a failure to do so. Having been convicted before the mayor, he appealed to the circuit court, where the cause was tried de novo.

Heard before Hon. Thomas Cobbs. The bill in this cause was filed on 29th September, 1880, by Clarence Herrick against Robert B. Monette and Samuel J. Monette, seeking the specific performance of an alleged contract for the sale of a certain tract of land in Hale county in this State, between Robert B. Monette, as vendor, and the complainant, as purchaser; Samuel J. Monette being, made a party defendant on averment, that he claimed the land by subsequent purchase from Robert…

Heard before Hon. Jno. A. Foster. The purpose of the bill, and the case made by the record are sufficiently indicated in the opinion. On the final hearing, had on pleadings and proof, a decree was entered in the court below, dismissing complainants’ bill, from which this appeal was taken. That decree is here assigned as error.

Heard before Hon. Tiiomas Cobbs. On 18th June, 1873, the Elyton Land Company, a body corporate, sold to Calvin L. Sayre a block of lots in the city of Birmingham in this State, for the sum of $2500, partly for cash, and the balance on credit, taking his notes for the credit installments, and executing- to him a bond, conditioned to make title on payment of the purchase-money.

Heard before Hon. N. S. Graham. The bill in this cause was filed on IStli September, 1879, by Daniel H. Gentry against Leander F. McCoy and John F., Lewis, to have a conveyance of land, absolute on its face, and reciting a moneyed consideration, executed, as alleged in the bill, on l>th May, 1866, by the complainant to the defendant McCoy and James F. Waddell, attorneys-at-law, declared a mortgage, executed to secure a fee of $500, which the complainant had agreed to pay…

<p>Appeal from Russell Chancery Court.</p> <p>Heard before Hon John A. Poster.</p> <p>The bill in this cause was tiled on 17th April, 1877, by Burrus & Williams, a mercantile partnership residing and carrying on business in the city of Columbus, in the State of Georgia, against William Dawson and Barbara Dawson, his wife, for the purpose of foreclosing a mortgage executed by said defendants on 27th March, 1875, conveying a tract of land siutate in Russell county in this State, the equitable separate estate of Mrs. Dawson, the legal title to which was in one Dudley, as her trustee, and securing a note signed by both defendants for $223.50 and dated 27th March, 1875, at Columbus, Georgia. Copies of the note and mortgage were made exhibits to the bill. The mortgage was attested by two witnesses and recorded ; but it was neither acknowledged nor probated. The land conveyed by the mortgage contained about three hundred and forty-five acres, and embraced the defendants’ homestead. The cause was before this court at a former term, when the decree of the chancellor was reversed, and it remanded. — See Burrus (& Williams v. Dawson, 6G Ala. 476.. After the remandment, the bill was amended by adding the trustee as a party defendant. The defenses set up by the defendants in their answers, and the facts disclosed by the evidence, necessary to an understanding of the points decided, are sufficiently indicated in the opinion.</p> <p>At the fall term, 18S1, on a submission of the cause “for a decree of reference,” a decree was entered, ordering the register to state an account, and ascertain and report how much, if any thing, was due on the debt secured by the mortgage, directing how the account should be stated; ordering him further to “ ascertain and report what, if any usury may be in said debt; ” and reserving for future consideration “all other questions of whatever character, involving the rights and equities of the parties in this cause.” On the reference had before the register under this decree, the complainants introduced in evidence, among other things, the original of their mortgage, and also the copy of the note exhibited to the bill. To the copy of the note the defendants objected, but their objection was overruled, and they excepted. Át the spring term, Í882, the cause was submitted for final decree on the register’s report and exceptions thereto, tiled on behalf of the defendants, and on pleadings and proof. On this submission proof of the execution and loss of the note, and of its contents was made before the chancellor; and a decree was rendered overruling the defendants’ plea of usury,, and ordering the payment to the complainants of the sum of $221.72, the amount reported by the register as due on the mortgage debt, and, in default of payment thereof within ten days, a sale of the premises conveyed by the mortgage.</p> <p>The errors here assigned are based on this decree.</p>

Heard before Hon. N. S. Graham. The bill in this cause was hied on 10th July, 1882, by Joseph W. Bradford against Chlotilde Eobertson, to enjoin an action of ejectment brought by her against him in the Circuit Court of Macon county, for the recovery of a certain lot of land situate in the town of Tuskegee.

Heard before Hon.' N. S. Graham. The bill in this cause was filed on 25th July, 1881, by Mary A. Yonge against George L>. and George W. Hooper, having for its main purpose the vacation and annulment of a decree ■rendered by the Chancery Court of Lee county on 11th June, 1875, foreclosing a mortgage on land, the equitable estate of Mrs. Yonge, on a bill filed against her by the said George D. and George W. Hooper; and of a sale of the land under said decree.

<p>Bill in Eqioity by Wicloio to charge Estate of her deceased Husband with Bents, Income and Profits derived from her Equitable Separate Estate, and collected by him.</p> <p>1. Equitable separate estate; what constitutes. — A marriage settlement by which the husband conveys real and personal property to a trustee for the “ sole and separate use, benefit and behoof ” of his wife, creates in her an equitable, asklistinguislied from a statutory, separate estate in the property conveyed.</p> <p>2. Power of wife over equitable estate.■ — In a courtof equity the wife has the same powers' and rights over her equitable separate estate, as if she were a feme sole; and, unless specially restrained by the terms of the instrument creating the estate, she may dispose of it in any mode she may elect, and without the concurrence of the husband.</p> <p>3. Power of wife over rents, income and profits of her equitable estate. The wife has also the power to receive and control the rents, income and profits of her equitable separate estate, free from the interference of -the husband; and, under her general power of disposition, she may give them to the husband, as to any other person; and if the husband, while living with her, receives such rents, income and profits, it will be presumed, in the absence of an express dissent on her part, that they were received by him with her consent, and will be regarded as a gift by her to him.</p> <p>. 4. When husband not chargeable with rents, income and profits of wife’s equitable estate; marriage settlement construed. — By a marriage settlement a husband conveyed improved real estate and stock in a manufacturing corporation to a trustee for the “ sole and separate use, benefit and be-hoof ” of his wife, clothing her with the power “ to possess, use, control and enjoy the same, and the proceeds and profits thereof, in such way and manner as she may deem fit and proper, and with power to dispose of the same, or any part thereof, either by transfer in writing, or deed of conveyance during her life, or by last will and testament; and if disposed of by her during her life, her trustee shall join with her in the transfer or conveyance ; ” conferring on the trustee no power to manage 'or control the property, but expressly relieving him of all responsibility in reference thereto; and further providing that if she should die, “ without having made disposition of said property in any manner', then the same, whether it consist of money or other things, and the proceeds and profits thereof, shall descend to, and vest in her right heirs forever, share and share alike, to the exclusion” of the husband and his heirs. Held, on a bill filed by the wife to charge the estate of her deceased husband with rents, income and profits derived from the property conveyed by the instrument, and collected by him, that a proper construction of the marriage settlement is to confine the mode of disposition therein designated to the corpus of the estate thereby created and to its accretions, and not to extend it to moneys received by the husband from rents, income and profits; and that the husband’s estate was not chargeable with rents, income and profits derived from such property, and collected by him, no express dissent on her part being shown.</p>

Heard pefore Hon. Tjiomas Cobbs. The bill in this cause was filed on 24th December, 1880, by William L'.

<p>Bill in Equity to compel the Opimty of Mobile to pay Judgment obtained for Services rendered under the Act cstablish-ing the Board for the Improvement of the River, Harbor .u/nd Bay of Mobile.</p> <p>1. Act establishing the ■“ Board for the Improvement of the River, Harbor and Bay of Mobile," constitutional. — On the 16th February, 1867, an act was approved, establishing the “ Board for the Improvement of the River, Harbor and Bay of Mobile” (Pampli. Acts, 1867, p. 507), requiring the President and 'Commissioners -of Revenue of Mobile County to issue bonds of the county to the amount of one million of dollars, to be delivered to the said board, tor the improvement of the river, harbor and bay of Mobile, whenever the board required them, and requiring said president and commissioners to levy and cause to be collected such taxes as may be deemed proper to pay such bonds, empowering said board to receive the bonds and apply them or their proceeds to the improvement of said river, bay and harbor, such improvement to be made in such manner as the board may direct, and authorizing them to make any rules and regulations, and to assess dues or tolls, to be collected on vessels or water crafts, and to do any act they might deem proper “to effect the objects of this act. ’ ’ Held, that it must be presumed that the act was passed and approved by and with the consent of the tax-payers of Mobile county, made known through their representatives, and it was a valid and constitutional enactment.</p> <p>2. Same; contracts made by the board binding on the county. — Under said act, the “ Board for the Improvement of the River, Bay and Harbor of Mobile ” were created a body corporate, and, as such, made trustees to carry into effect the purposes of the act, their duty and responsibility'being official and fiduciary, extending only to the fund they could command and coerce; and contracts made by the board, for the purposes contemplated by, and within the scope and limitations of the act, were valid and binding on the county of Mobile, imposing on it a liability for their payment.</p> <p>3. Same; obligation of contract made by ■the board beyond legislative power to impair. — The legislature lias no more power to impair the obligation of a contract made pursuant to its authority than it has to impair the obligation of a contract made between individuals under like conditions ; and hence, work having been done and accepted under a valid and binding contract made with said board, it was placed beyond legislative power to impair its obligation.</p> <p>4. Same; liability of the county of Mobile for work done in pursuance of its provisions. — In 1871, work was performed by a contractor under a contract made by him with the Board for the Improvement of the Iiiver, Bay and Harbor of Mobile,” to an amount, and for the purposes authorized by the act creating the board. On the 19th April, 1873, an act of the General Assembly was approved, prohibiting the issue of bonds of the county of Mobile to said board under the act of 1867, exceeding the sum of two hundred thousand dollars. Bonds to this amount having been issued to- said board, and by them expended for other improvements made under contracts with them, leaving nothing with which to pay said contractor, he brought suit, and, in 1881, recovered a judgment against said board, and caused an execution to be issued thereon, which was returned “ no property found ; ” and thereupon he filed a bill against the county of Mobile to compel payment of his judgment. Held, that the county "was liable, and that the contractor could proceed directly, against it for the enforcement of such liability. (The case ’of Mobile County v. Kimball, 54 Ala. 56, distinguished from this.)</p> <p>5. Same; 'when claim for work done under its ¡provisions barred by the statute of limitations. — In such case, the contractor’s cause of action against the county of Mobile accrued at the time when said board had expended the two hundred thousand dollars in the improvements • authorized by the statute, and its assertion by him in no way depended on the previous prosecution of the board to insolvency; and more than six years having elapsed between the accural of the right of action and the bringing of suit, his claim is barred by the statute of limitations.</p>

Tried before Hon. Lewis Wyeth. This was a suit by Benjamin F. Bean, as the administrator-tie bonis non of the estate of Lawson Garner, deceased, against Beuben Chapman and Septimus D. Cabaniss, founded on a bond executed by the defendants as the sureties of one D. L. Larkin, on 27th January, 1860, and payable to the said Lawson Garner twelve months after date; and was commenced on 1st September, 1871.

Heard before Hon. N. S. Graham. Bill in equity by mortgagor to enjoin a sale of the land conveyed by the mortgage, under a power contained therein, and to have the mortgage declared void as against public policy; and cross-bill by the mortgagee, seeking a foreclosure of the mortgage. The facts necessaiy to an understanding of the points decided are sufficiently stated in the opinion.

Heard before Hon John A. Foster. This was a bill in equity by Johu J. Wynn against George W. Rosette and Charles B. Taliaferro, to enforce a vendor’s lien on land for unpaid purchase-money; the said Taliaferro having been made a party as a subsequent purchaser of the land, charged with notice of complainant’s lien. This cause was before this court at a former term, and is reported.

Tried before Lion. II. D. Clayton. This action was brought by Lee county against John E. Lewis, a former treasurer of said county, and others, the sureties on his official bond; was founded on said bond, and was commenced on 6th September, 1875.

<p> Detinue. </p> <p>1. Detinue; when plaintiff must have legal title. — Where the plaintiff in an action of detinue has never had the actual possession, he must have the legal title in order to entitle him to recover.</p> <p>2. Mortgage; when legal title'not conveyed thereby. — A parol agreement by a debtor, that certain personal property belonging to him “should stand good for his indebtedness,’! not accompanied by a delivery or change of possession, does not convey the legal title, but creates an equitable lien.merely, which will not support an action of detinue.</p>

N. S. Graham. The bill in this cause was filed on 23d January, 1882, and was subsequently amended. The purpose of the bill, and the •case made by it and the amendment thereto are sufficiently stated in the opinion. On the hearing, on motion of the defendants, a decree was entered, dismissing the bill for want of equity; and that decree is here assigned as error.

Tried before Hon. William E. Clarice. This was an action of trover, brought by Fanny W. Garner, wife of John H. Garner, jr., against John C. Bush, to recover damages for the alleged conversion of certain cotton by the defendant; and was commenced on 24th January, 1881. The complaint averred that the cotton belonged to the plaintiff as her statutory separate estate.

Clair Circuit Court. Tried before Hon. Le Hot F. Box. This was an action of trover, brought by Lucinda Woods, a married woman, -the wife of John Woods, against William Dunlap and another, for the conversion of a wagon and a yoke of oxen, alleged to have belonged to'the plaintiff as her statutory separate estate. The cause was tried on issue joined on the plea of not guilty, the trial resulting in a verdict and'judgment for the defendants.

Heard before Hon. N. S. Graham: This was a bill in equity, filed on 15th, March, 1880, by Mary A. Powell, w’idow of Elijah Powell, deceased, and E. T. Powell, their son, who was a minor at the time of his father’s death, against S. B. Hood, to have vacated and canceled a deed of trust executed by the decedent on 30th December, 1872, purporting to convey his homestead to D. E. Turrentine, as trustee to secure a designated debt, which he then owed to -the ■defendant, on the…

Tried before Hon. James E. Cobb. This was a statutory real action in the nature of ejectment, by A. C. F. Smith and others against Alfred Massey. The cause was tried on issue joined on the plea of not guilty, the trial resulting in a verdict for the plaintiffs, from which the defendant appealed. The evidence of title relied on by the parties in the primary court is not stated in the record.

Appbal from Talladega Circuit Court. Tried before lion. Lb Roy F. Box. This was a suit in trespass, brought by Shealy & Finn against Joseph A. Edwards, Joseph Hardie and others, to recover damages for the seizure and asportation of certain goods, wares and merchandise, and was commenced on 19th January, 1882.

Tried before Hon. John Moobe. This action was. commenced on 5th April, 18S1, by A. S. Jeffries against the City National Bank of Selina and another, and was. founded on an attachment bond executed by the defendants as sureties of Kahn, Wolf & Sons, at whose suit an attachment was issued out of the Circuit Court of Hale county against the plaintiff, a merchant, on 4th April, 1881, and levied on a stock of goods, wares and merchandise owned by hinu The complaint contains five…

The record fails to disclose the' name of the presiding judge in the circuit court. Assumpsit by the appellee against the appellant. The facts are stated in the opinion.

Tried before Hon. LkBoy E. Box. This suit was commenced before a justice of the peace, and was brought by B. E. Turner against Peter Wagnon, to recover, as shown by the complaint, fifty dollars as damages for the wrongful'cutting of certain timbers off plaintiff’s lands by the defendant.

<p> Application for Rehearing under the Statute </p> <p>1. Application for rehearing under the statute; when petition fatally defective. — A petition for a rehearing under the statute after final judgment at law (Code of 1876, §§ 3161-2), on the ground of newly discovered evidence, which fails to show in what the testimony consisted, and that it was not merely cumulative of a fact or facts, of which some proof was made on the trial, and that it was not discovered until after the adjournment of the court at which the trial was had, is fatally defective.</p>

Aiteal from Calhoun Circuit Court. Tried before Hon. LeRoy F. Box. This was a statutory real action in the nature of ejectment, brought by the appellants against the appellee, and was tried on issue joined on the plea of not guilty, resulting in a verdict and judgment for the appellee.

Tried before. Hon. James E. Cobb. This was a satutory real action in the nature of. ejectment by Lewis E. Parsons, jr., and Stephen J. Darby against Joseph Watt, Eliza Watt, Thomas M. Watt, and N. Ó. Watt. Thomas M. Watt pleaded not guilty, and the statute of limitations.of ten years, and the other defendants disclaimed all interest in, and possession of the lands sued for. The trial resulted in a judgment for the plaintiffs, from which Thomas M. Watt appealed.

Tried before Hon. James E. Cobb. This action was commenced before a justice of the peace, ■and was brought by McKenzie and others against Gribson, to recover, as shown by the complaint filed before the justice of the peace, the penalty provided by section 1587 of the Code of 1876, for killing a hog, the plaintiff’s property.

<p> Action on Account. </p> <p>1. Composition, of debts; section 3040 of the Code construed. — The sole purpose of section 3040 of the Code of 1870 was to render operative and valid written contracts, intended in good faith by the parties to operate as a composition of debts, and executed without a release under seal, and without a new or additional consideration, which were inoperative under the rules of the common law.</p> <p>2. Sume. — The dictum in Hurt v. Freeman, 42 Ala. 567, that section 3040 of the Code of 1876 “ requires settlements for the composition of debts to be in writing,” is manifestly erroneous as a general proposition, although correct as to that particular case.</p> <p>3. Same; good, when part of debt secured by guaranty of third party, although not in writing. — While neither the payment nor tlie promise by a debtor to pay a part of a debt, will operate an extinguishment of the whole, yet, when the creditor receives a guaranty of a part of the debt from some responsible third party, or receives the obligation or note of the debtor therefor with some other person as surety,'in full satisfaction, this will operate a discharge of the entire debt, although the agreement is not- in writing, the statute having no application to such a case.</p> <p>4. Admissibility of evidence; res inter alios acta. — The defense to an action on an account being, that the creditor had accepted the debtor’s notes for a part of the debt, with sureties, in full settlement and satisfaction, which was controverted by the plaintiff, the fact that the defendant had made similar settlements with other creditors, the plaintiff not being connected therewith, is res inter alios acta, and irrelevant, and inadmissible.</p>

Heard before Hon. Thomas Cobbs. Bill in equity by Thomas J. Ivie against T. Stringfellow and N. M. Stringfellow, his wife, to enforce a vendor’s lien on. land for 'the payment of unpaid purchase-money.

Ari’EAL from Macon Circuit Court. Tried before Hon. Jamks E. Cobb. This was an action of detinue, brought by Iiney against Huddleston for the recovery of a mule, and was tried on issue joined on the plea of the general issue, the trial resulting in a verdict and judgment for the plaintiff.

Tried before ITon. ¥h. S. Mudd. Trover by F. Gaines against J. P. Rodgers, to recover damages for tlie conversion of a mule. The complaint is the only pleading disclosed by the record.

Tried before Hon. LeBoy F. Box. This wasd statutory real action in the nature of ejectment, brought by John T. Casey and Z. T. Acker, as the administrators de bonis non, with the will annexed, of. Thomas White, deceased, against Thomas Morgan and Looney Sanford; and was commenced on 20th December, 18J5.

Tried before Hon. Wm. S. Murra. This was an action under the statute by Strauss & Go. against John Y. Wright and Georgia H. Wright, his wife, to subject certain lands situate in said county, particularly described in the eompl'aint, and belonging to Mrs. Wright as her statutory separate estate, to sale for the payment of an account for goods, wares and merchandise, alleged to have been articles of comfort and support of defendants’ household, etc.; and'was commenced on 6th…

Tried before Lutiikr R. Smith, Esquire, Special Judge. This was a statutory real action in the nature of ejectment, brought by WiUiaiq T. Simmons against L. Lavender Simmons, to recover that part of the west half of the north-east quarter of section 22, township 17, range 2, “ which lies south of Double Creek,” or, as described in another count, “ which lies on the south side of the creek,” in Marengo county.

Tried before Hon. ¥h. H. Thornton. In the matter of the final settlement of the administration of William S. Terrell upon the estate of Joseph' Jenks, deceased. Joseph Jenks, the decedent, departed this life intestate on 13th January, 1874, seized and possessed of real and personal property, and leaving. surviving him his widow, E.. J. Jenks, who afterwards intermarried with one Wm.

<p>Appeal from Hale Circuit Court.</p> <p>Tried before Hon. John Moore.</p> <p>This suit was brought by John S. Powers 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 plaintiff ’s horse by the defendant’s locomotive and train, through and by reason of the negligence of defendant’s servants in conducting and running said locomotive and train. The cause was tried on issue joined on the plea of not guilty, the trial resulting in a verdict and judgment for the plaintiff.</p> <p>The evidence introduced on behalf of the plaintiff tended to show, that on' 29th of April, 1882, the plaintiff’s horse, having been turned into a common pasture owned by the plaintiff and one Prince, in a district in which crops are required to be fenced, and it was customary to allow stock to run at large, was grazing in an old field through which the road ran, within fifteen or twenty feet of defendant’s track, when the train approached, and the horse started towards the track, approaching it diagonally, and attempted to cross it, and was run over and so injured by defendant’s locomotive, that be had to be killed; and that only “ one whistle was heard which was sounded just as the horse was struck.” The value of the horse was also shown. The evidence introduced on behalf of the defendant tended to show, that the defendant’s track at and near the place where the horse was injured was perfectly straight, and the train was running at the rate of frpm five to seven miles per hour; that while the engineer was in his seat on the right hand side of the engine, three horses were perceived by him about ten yards from, and on the right hand side of the road, about forty yards distant from the engine; that the horses appeared to have been frightened by the train, and two of them ran off from the road, but the third started diagonally towards the road ; that as soon as it was seen coming towards the road, “ the engineer whistled down brakes, and immediately thereafter sounded the stock alarm several times; that the horse came up the embankment, which was about three feet high, to the track, as if to cross, about fifteen yards in front of the engine; that the engine was ’reversed and every effort made to stop the train;” 'that the train was stopped just after -the horse was struck; and that the engineer and other employees in charge of the train were experienced, skillful, and careful men in their line of employment, and that the engine, cars, brakes and appliances were in good order and condition. The foregoing is the substance of the material portions of the evidence introduced, as shown by the bill 'of exceptions.</p> <p>. The court charged the jury, at the written request of the plaintiff, as follows: 1. “ If the horse was .seen by the engineer within ten or fifteen feet of the road, or running close by the road-bed, on a line with it, and within a few feet of the road and train, as it was moving, and under circumstances indicating danger of its getting on the track, then it -was .the duty or the engineer to use all means in his power to frighten away the horse, until ■ the danger1 had ceased.” 2. “Human beings are sentient, and have'the reasoning facility; and this is the reason why different rules for railroads are prescribed for the preservation of cattle, and for the safety of human life. As to the former, in addition to sounding the alarm whistle, the brakes must be applied, and the train checked or stopped, if need be, to prevent injuryfor domestic animals know not the necessity of leaving the track.” The defendant duly reserved exceptions to the giving of these charges, and also to the refusal of the court to give the following charges, requested by it in writing : 1. “"If the jury believe from the evidence, that- the engineer and persons in charge of said train were very careful and prudent men, and that, on perceiving the said stock on the railroad, used that degree of diligence which every careful and prudent man exercises in the conduct of his own affairs, in seeking to avoid the danger- aud arrest the injury to said stock, then they must find for the defendant.” 2. “ If the jury believe from the evidence, that the engineer on said defendant’s train was on the look-out for obstructions, arid that, when he discovered said stock'on the track, he and the persons in charge of said train promptly resorted to all means known to skillful engineers to escape the impending danger, or arrest the threatened injury, then the defendant exercised that due diligence which the law requires of the defendant in this case, and the jury must so find.”</p> <p>The charges given at the plaintiff’s request, and the'.refusal of the court to charge as requested by the defendant are here assigned as error.</p>

Heard before Hon. Ttiomas Cobbs. The bill in this cause was filed on 16th October, 1882, by the National Commercial Bank, a corporation under the laws of the United States, against Walter A. Sims, Thomas W. Sims and Virginia P. Sims, his wife, and Harriet S. Bizzell and William B. Bizzell, her husband; and the case made thereby is substantially as follows: On 8th June, 1880, Thomas W. Sims sold on a credit, and conveyed to Walter A. Sims a tract of land in Sumter county, for…

<p>Appeal from Covington Circuit Court.</p> <p>Ti-ied before lion. John P. Hubbard.</p> <p>The facts are sufficiently stated in the opinion.</p>

Appear from Clay Circuit Cpurt. Tried before lion. John Henderson. This was a statutory real action in tlie nature of ejectment, by Daniel C. Pearce against Benjamin A. Clements and Te,mpy Clements. The trial resulted in a verdict for the defendants, from which the plaintiff appealed. The facts, necessary to an understanding of the points decided, are sufficiently stated in the opinion.

Tried before Hon. John P. Hup,bard. Tills was an action by Brewer & Brewer, transferees of one G-rabam, against Martba Wood.as tbe executrix of tbe last will and testament of R. II. Wood, deceased, and was founded on account for work and labor done by G-rabam for tbe defendant’s testator during the year 1875.

Tried before lion. ¥h. S. Mudo. . This was a statutory real action in the nature of ejectment, brought by H. A. Tutwiler against D. M. Montgomery and Amos Horton; was commenced on 18th January, 1881; and was tried on issue joined on the plea of not guilty, the trial resulting in a verdict and judgment for the defendants. Both parties claimed title through A. S. Steele.

Tried before Hou. John Henderson. This suit was brought by A. W. Mason against the Alabama Iron Company, a body corporate, to recover damages for the breach of a contract in writing, made between the parties, the provisions of which, necessary to this report, are sufficiently stated in the opinion. The contract is set out, in hceo verba, in the complaint, and it is averred that the plaintiff, on his part, has complied with all its provisions.

AppBAL^from Iienry Circuit Court. Tried before Hon. H. D. Clayton. This action was brought by Joseph Raker against T. H. Trotter, J. Z. S. Connerly and Hosea Powell,- and was commenced on 12th February, 1881.

Heard before Hon. N. S. Graham. This cause was before this court at a former term, and is reported under the title of Jones v. Randle. Held: that when a bill is dismissed out of court, either on demurrer or on motion to dismiss for want of equity, the decree is final and ceases to stand as a pi'eference case under the statute, By the terms of the decree dismissing .the bill as to William B. and Thomas Jones, they were discharged from court; they no longer continued before…

Aiteal from Pike Chancery Court. Heard before Hon. H. Austill.

Tried before Hon. H. D. Clayton. This was an action brought under the statute, by R. Q. Edmonson against D. M. Seals for the recovery of four bales of cotton, and was commenced on 28th April, 1881.

Heard before Hon. Thomas Cobbs. The bill in this cause was filed on 21st January, 1881, by 'Samuel O. Spencer and Justinia Spencer, his wife, against James 'T. Smith, to enjoin an action of ejectment brought by the defendant against complainants, to recover a certain tract of land .situated in Greene county.

Tried before Luther R. Smith, Esquire, Special Judge. The proceedings in this cause were commenced by attachment, issued out of said court at the suit of Lehman Bros, and Walton W. Hill, landlords, against Howze & Oreagh, tenants, to enforce the plaintiffs’ lien for the rent of certain lands for the year 1881, and for advances made under the statute during that year.

Tried before ILon. H. D. Clayton. This action was brought by Lotspeicli & Ponder against the Central Railroad and Banking Company of Georgia, and the' Georgia Railroad and Banking Company, corporations owning and operating, as is averred, a railroad from Selma, Alabama, to the State line between Alabama and Georgia; and was commenced on 9th April, 1878.

Tried before Charles E. \ Valuer, Esquire,acting as Special Judge. This was a statutory real action in the nature-of ejectment, ■commenced by P. A. Tutwiler against Thomas T. Munford on 18th October, 1880. The causo was tried on issue joined on the plea of not guilty, the trial resulting in a verdict and judgment for the defendant.

<p>Appeal from Geneva Circuit Court.</p> <p>Tried before lion. IT. D. Clayton.</p> <p>The facts are stated in the opinion.</p>

Tried before Hon. James E. Curb. This was an action of detinue, brought by J. M. Russell against B. W. Walker, to recover a horse, and was tried on issue joined on the plea of the general issue, the trial resulting iu a verdict and judgment for tlie defendant.

. Heard before lion. N. S. Graham. The petition of the appellee, referred to in the opinion, after stating the title of the cause, averred, that “heretofore he, as attorney for N. B. Leath, next friend and guardian of B. Y. Weaver, a creditor of the estate of said Ambrose Weaver, deceased, and intestate of complainant, did, on the — day of-18 — , obtain a judgment in favor of said B. Y. Weaver in the probate court of Cherokee county, Alabama, for the sum of six hundred and…

Tried before lion. H. D. Clayton. This action was brought by J. Gf. Gruice against J. M. Thornton, and was founded on a promissory note made by Thornton & Locke, a' partnership composed of defendant and Ann J. Locke, a married woman, who had been relieved of the disabilities of coverture, and the wife of one Win. II. Locke, for $2000, with interest from date, bearing date April 3d, 1875, and payable at six months thereafter.

<p>Appeal from Greene Chancery Court.</p> <p>Tried before Hon. Samuel A. Spkott.</p>

John A. Poster. This was a bill in equity by John P. Kamper, A. L. Jamison, and numerous others, “ for themselves and such other persons as shall make themselves parties to this suit, and bear their proportion of the expense thereof,” against the “ Grangers’ Life and Health Insurance Company of the United States of America, a corporation created by the laws of the State of Alabama,” and the officers of said corporation, named in the bill, and against Gaylord B. Clark, “…

Tried before lion. LeRoy F. Box.. This was a statutory real action in the nature of ejectment, and was brought by M. C. Woodward, a married woman, and J. A. Woodward, her husband, against Lewis E. Parsons,, and others, his tenants in possession.

Aiteal from Lee Probate Court. Tried before Hon. James K. Edwards. This was an application by W. K. Meadows, describing himself as tlie “ administrator with the will annexed of Isham Meadows, deceased,” for the sale of lands belonging to said estate for -the payment of debts.

Tried before lion. H. D. Clayton. This was an action of ejectment by the’appellant against the appellees, and was commenced on 17th March, 1879. The defense relied on, and the facts disclosed bjfcthe evidence, necessary to an understanding of the points decided, are sufficiently stated in the opinion. .

Tried before Hon. LeRoy F. Box. Randall Wills, the appellant, and Jane Wills, his wife, were, in this case, jointly indicted for the murder of Lucy Coleman. The appellant was convicted of manslaughter in the first degree, and sentenced to the penitentiary for four years; but his-wife was acquitted.

Aureal from Etowah Circuit Court. Tried before lion. Le Boy F. Box. The prisoner, Tom Wharton, was indicted and tried for the murder of Mary Wharton, who was his wife, and was convicted ■of murder in the first degree and sentenced to imprisonment in the penitentiary for life. For the purposes of this report, the opinion sufficiently states the'case made by the evidence.

A. Foster. As amended, this was a bill in equity by Emma Holly against McCormick Pruitt, and against J. Gf.

Tried before Hon. LeBoy F. Box. Tliis was an action by George W. Chambers against Joba L. Seaj’; was founded on a contract executed by and between the parties, the material terms of which are stated in the opinion; and was commenced on 2ith March, 1880. The complaint as amended contains six counts.

Heard before Hon. Jno. A. Foster. The bill in this cause was filed by M. E. Daniel and others, heirs at law óf M. M. Stough, deceased, against S. C. Stough, seeking to have set aside a sale of land belonging to the estate of said intestate, made by the defendant, while he was the administrator of said estate, to himself, and a conveyance thereof to him by a party appointed by the- probate court for that purpose. 'Two of the heirs did not join- as complainants in the bill;…

Heard before Hon. N. S. Gkaiiam. ' The bill in this cause was filed on 4th August, 1882, by Isaac Moses against David Abernathy, John Iluguley, and others, for the purpose stated in the opinion.

Apaeal from Pike Chancery Court. Heard before Hon. Jno. A. Foster. The bill in this cause was filed by Nancy Boyd, a judgment creditor of Thomas Connor, against the latter, seeking a discovery of property liable to the satisfaction of her judgment, and a decree condemning the property to sale for that purpose.

Aureal from St. Clair Chancery Court. Heard before Hon. N. S. Graham. •As originally filed, this was a bill in equity by John M. Yan■eleave and Elizabeth F. Yancleave, his wife, against John C. Wilson, and Susan Wilson, his wife, seeking, among other things, to have vacated and set aside an absolute conveyance of a homestead, executed by the complainants, and to enjoin a judgment obtained in unlawful detainer against John M. Yafteleave, before a justice of the peace, for…

Heard before Hon. N. S. Graham. The bill in this cause was filed by D. J. Chandler, P. Fleming, J. II. Warner & Go. and Buoif & Co. against George D. Lawrence, Wiley G. Jones and L. B. Morrison, partners under the firm name of the Alabama White Sulphur Springs Company, and A. B. Ilanna, for the purpose stated in tlie opinion. Hanna was made a party defendant as claiming a vendor’s lien on the property sought to be subjected to sale.

Tried before Hon. II. D. Clayton. This was a suit by Kolb & Hardaway against the Montgomery & Eufaula Kailway Company, a body corporate, to recover the value of nine bales of cotton, alleged to have been delivered to the defendant at Eufaula for transportation to Montgomery, and which were never delivered by the defendant at the latter place; was cómmenced on 12th March, 1881, and was tried on the plea of the general issue, the 'trial resulting in a verdict and' judgment for…

Tried before lion. S. E. A. Beaves. In the matter of the final settlement of James M. Towles as guardian of Thomas M. Phillips, a minor. As shown by the record, in 1860, the ward’s father died intestate, seized and possessed of a considerable estate, consisting of real and personal property; and soon thereafter James JJ.

Heard before Hon. Jno. A. Foster. On 12th March, 1867, Arthur Crews executed a deed of gift to his infant daughter, Ella Corine Crews, purporting, by its terms, to “give, grant and convey” to her certain designated and particularly described promissory notes, made by divers third parties for money loaned, payable to him in January and.

Heard before Hon. Thomas Cobbs. On or about 16th December, 1858. Warren Massey departed this life, a resident of Marengo county, in this State, seized. and possessed of real and personal property, and leaving a last will and testament, which was duly admitted to probate in and by the probate court of said county. He also left him surviving his widow, Mary Massey, and several children, some of whom were, at the time of his death, minors of tender years.

Heard before Hon. N. S. Graham. The case made by the record appears in the opinion. (1) The conditions mentioned in the deed in question are conditions precedent. Such a condition is one that must be performed before any title passes, or estate vests. — 1 Black. Com. 2 Bk., *154; 4 Kent’s Com. 133; 2 Washb. on Neal Property, 3, § 2; 1 Bon.

Tried before Hon. LeBoy F. Box. This cause was before this court at a fowner term, when tbe judgment of tbe lower court was reversed and the cause remanded. — See Herring, Farrell The second count is in these words: “ The plaintiff claims of the defendants the other and further sum of five thousand dollars, as damages for falsely and fraudulently representing to plaintiff that a certain iron safe, sold and delivered by them to plaintiff, was made of very tough, hard iron, a…

Tried before lion. W. O. Oliver. In the matter of tbé’final settlement of Thomas C. Clark, as the administrator of the estate of Benjamin W. Hale, deceased. The estate of the said Benjamin 'W. Hale, deceased, having been declared insolvent, a final settlement thereof by Thomas C. Clark, the administrator, was had in said court, on the 20th June, 1879, when claims of creditors were passed on, and decrees entered in favor of the creditors whose claims were allowed.

Heard before Hon. N. S. G-RAi-rAM. This-was a bill in equity by Joel Weems, Moses W. Maddux and Janies H. Savage against Asa Weems, seeking to enjoin a judgment at law obtained by Asa Weems against Joel Weems, and an execution issued against the said Joel, and Moses W. Maddux and James H. Savage, as sureties on a supersedeas bond, executed for the purpose of an appeal from said judgment to this court, on affirmance here of said judgment.

Heard before Hon. N. S. Graham, The bill in this cause was filed on 31st October, 1877, by the “Alabama Gold Life Insurance Company, a corporation by the laws of the State of Alabama,” against Edward and Josephine Denniston, seeking the foreclosure of a mortgage executed by the defendants to the “Alabama Gold 'Life Insurance Company,” on three several lots of land in the city of Opelika, to secure the payment of a note made by the defendants, and payable to the “Alabama Gold…

’ Heard before lion. Thomas Cobbs. This cause was before this court at a former term, when the decree of the chancery court was reversed and the cause remanded. See Means v. Ricks, 65 Ala. 241.

Tried before lion. S. IT. Sprott. William Clifton, the defendant in the court below, appellant in this court, was indicted, tried and convicted under section 4239 of the Code of 1876.

Tried before Hon. ¥m. E. Clarke. The nature of the offense charged, and the facts disclosed by the evidence are sufficiently stated in the opinion. The court charged the jury, at the written request of the solicitor for the State, that if they believed the evidence, they must find the defendants guilty. To this charge the defendants excepted ; and it is. here assigned as error.

Arreal from City Court of Montgomery. Tried before Hon. Thos. M. Arrington. Israel Johnson, the appellant, with three others, was indicted for breaking into and entering a railroad car, the property of the “Louisville and Nashville Railroad Company, a corporation organized under the laws of the State of Kentucky,” in which designated articles of value were at the time kept “ for use, or on deposit, or for transportation as freight,” with the intent to steal.

Tried before Hou. John P. Hubbard. Motion in this court to dismiss the appeal, on the ground that the appellant had escaped from custody, and was a fugitive from justice, as shown by affidavits.

Writ or Error to Jefferson Circuit Court. Tried before lion. Sam’l. II. Sprott. The indictment in this cause charged that Wesley Posey, the defendant in the court below, liad carnal knowledge of a designated -female, under the age of ten years, or did abuse said female 'in the attempt to have carnal knowledge of her. On the trial he was convicted and sentenced to be hung; and to reverse the judgment of conviction, he applied for, and obtained a writ of error.

Tried before Hon. T. M. Arrington. Allen Harris, the defendant in tlie court below, appellant bere, was indicted for breaking into and entering a designated building within the curtilage of a dwelling bouse, “ with tbe intent to steal, and having so broken into and entered said building, then' and there feloniously took and carried away seven turkeys of the aggregate value of twelve dollars, the personal property,” etc. The defendant was found guilty of burglary, and…

Appear from Conecuh Circuit Court. Tried before Hon John P. Hubbard. Ned Amos, the appellant, defendant in the lower court, was indicted, tried and convicted under a statute rendering it unlawful, except upon the prescription of a practising physician, “to sell, give away, or otherwise dispose of spirituous, vinous or malt liquors,” within a designated locality in the county of Conecuh. — Pamph. Acts, 1880-1, p. 387.

Application to this court for mandamus, prohibition, or other remedial writ, to be directed to Hon. F. C.’ Randolph, Judge of Probate of Montgomery county, commanding him to vacate, annul and set aside an order made by him, discharging, on habeas corpus, Alex.

Application to this court for a writ of habeas corpus, the writ having been refused by the Hon. Samuel H. Sprott, ■Judge of the Sixth Judicial Circuit. The ground of the application was, that the relator had been pardoned of the crime, of which he had been convicted, and for which he was held in'custody.

Tried before Hon. James E. Cobb. The facts disclosed by the evidence are stated in the opinion. The defendant asked the court, in writing, to charge the jury, among other things, that if'they believed all the evidence, they must acquit him. This charge the court refused to give, and the defendant excepted.

John P. Hubbard. The appellant, defendant in the lower court, was indicted for the offense of seduction, and was convicted and sentenced to-imprisonment in the penitentiary for four years.

Tried before lion. LeRoy F. Box. Trover by the appellant against the appellee. The facts necessary to an understanding of the point decided are stated in the opinion.

Tried before lion. John P. Hubbard. The nature of this proceeding, the defense made thereto, and the facts disclosed by the evidence are sufficiently stated in the opinion. The court charged the jury, on written request, that if they believed the evidence they must find for the plaintiff in the original suit, defendant in this proceeding; and to this charge Johnson, the petitioner, excepted.

Tried before Hon. James E. Cobb. This was an action by B. J. Moore, as the administrator of the estate of James T. Green, deceased, against Mitcham & Smith, to recover damages for the alleged conversion by the defendants of three bales of cotton, assets of said estate ; and it was commenced on 29th September, 1881.

Application to this court for mandamus to the Circuit Court of Pike county, to compel that court to make and enter an order subjecting personal property levied on under an execution, and claimed as exempt by the defendant in the execution, to sale, on bis failure to file an inventory as provided in section 2837 of the Code of 1876.. The facts are stated in the opinion.

Tried before Hon. Samuel II. Sprott. The case made by the record is sufficiently stated in the opinion. cited Scruggs v. Underwood, 54' Ala. 187; Palmer v. Fitts, 51 Ala. 491; Mobile Goionty v. Stone, 69 Ala. 208; Code of 1876, §§ 4455, 4465 — 84, 4731, 944. reviewed at length the legislation in this State touching the fine and forfeiture fund, and cited the following statutes and authorities: Clay’s Digest, pp. 247-9; lb. p. 296, § 37; lb. p. 600, § 7; lb. p. 441, §§ 22-3;…

Tried before Hon John P. Hubbard. This was a statutory real action in the nature of ejectment, brought by P. D. Motes against William Carter, and was commenced on 10th February, 1883.

<p>Appeal from Cleburne Chancery Court.</p> <p>Heard before Hon. N. S. Graham. '</p> <p>Tlie facts are stated in the opinion.</p>

Tried before lion. John Moore. This was a suit by the Capital City Insurance Company, a corporation, against Charles H. Quinn and John Y: McDuffie, partners trading under the firm name of O. IL Quinn & Co., and was founded on a bill of exchange, drawn by one Hall, a member of the firm of ¥m. Hall & Co., on and accepted by the defendants, dated 12th August, 1880, and payable sixty days after its date to the order of ¥m. Hall & Co., by whom it was indorsed to the plaintiff…

<p>Appeal from Lowndes Circuit Court.</p> <p>Tried before Hon. John Moore.</p> <p>The case made by the record is sufficiently stated in the opinion.</p>

Application to this court for a writ of mandamus, to compel the Probate Court of Montgomery county to vacate and set aside an order made by that court, removing a cause therein pending to the Circuit Court of the United States. The case made by the record is sufficiently stated in the opinion. (1) The court below had jurisdiction to determine whether the cause was removable, and was bound to exercise its judgment, and act judicially in determining the matter.

<p>Aprkal from Bullock Circuit Court.</p> <p>Tried before Hon. H. I). Clayton.</p> <p>This was an action of assumpsit brought by Lula J. Childs and Thomas L. Fielder, infants, suing by their next friend, against Elvira IT. Fielder, as the executrix of the last will and testament of James H. Fielder, deceased, for the use-and occupation of certain land,' in the complaint described, by defendant’s testator, from 1st January, 1864, to 1st January, 1869; audit was commenced on 22d- March, 1881. The defendant pleaded the general issue, “ with leave to give in evidence any matter which might be specially pleaded; and it was agreed that any pleas which might be pleaded under the facts agreed on by the parties, in bar of the recovery of the amount sued for,' or iir bar of the recovery of any portion of such amount, should be considered and treated as fully as if the same were formally and fully set out and pleaded.” The cause was tried on issue joined on this plea, the trial resulting in a verdict and judgment for the plaintiffs. .</p> <p>There was an agreement as to the facts, which was read in 'evidence, and which is, in substance, as follows: L. B. Fielder was killed in battle on the 2nd July, 1862, seized of an undivided one-fifth interest in and to the laud, for the use and occupation of which this suit was brought, and leaving a will, by which he devised to Thomas L. Fielder, the plaintiffs’ father, an un- ■ divided one-fourth of his one-fifth interest, the said Thomas L. being, at the time of the death of the said L. B. Fielder, the owner of an undivided two-fifths interest in said land. On 16th March, 1868, the will was'duly probated in the Probate Court of Pike county, in this State, and James II. Fielder, the defendant’s testator, was duly appointed administrator, with the will annexed, of his estate. In December, 1862, the said Thomas L. Fielder died, seized and possessed of the undivided interest in -said land which he acquired under the will of the said L. B. Fielder, and also the additional undivided two-fifths interests therein which he owned'at the death of the said.L. B-Fielder; and leaving a last will and testament, by which he devised and bequeathed all his property to his widow, Jane A. H. Fielder, during her widowhood, and directing, on her marriage, that his property should be divided between her and his children, she taking, as her portion of the estate, what she would be entitled to, under the laws of this State, “ as her dower and distributive share.” Said will was afterwards duly admitted to probate in the Probate Court of Pike county, and letters testamentary thereon were granted to her, she having been nominated as executrix in the will. The plaintiffs were the only surviving children of the said Thomas L. Fielder; and the said widow married again in August, 1864. ■</p> <p>On 21st September, 1863, James Ii. fielder, as the administrator of the estate of L. B. Fielder, filed in said probate court a petition for the sale of the undivided one-fifth interest in ■said land of which said decedent died seized'and possessed, for division; and on 13th November, 1863, a decree of sale was made and entered on said petition. The language of this decree is broad enough, when read by itself, to have authorized the sale of the entire interest and estate in the land, and not merely the undivided one-fifth interest therein, described and sought to be sold in the petition. On 11th December, 1863, under the decree of sale, and by and with the consent of the said Jane A. H. Fielder, the widow and executrix of the plaintiffs’ father, who also appears to have been their guardian, they being minors, and of the other tenants in common, the said administrator sold the entire interest and estate in said land, including not only the interest sought to be sold in the petition, but also the undivided two-fifths interest which the plaintiffs’ father owned prior to the death of the said L. B. Fielder, and the interests of the other tenants in common ; and at the sale he became the purchaser. The sale was soon thereafter reported to the court, and by it confirmed, and a deed was executed to the said purchaser, defendant’s testator, by a commissioner, appointed by the probate court for that--purpose; and thereupon. lie entered into the actual possession of said land under his purchase, and continued therein until 10th November, 1869, when he sold, and by deed with warranty conveyed it to one Delbridge, who then took, and has since held possession of the same. During the time the defendant’s testator was in possession of said land, he claimed it under his said purchase, and-did not .recognize “any claim or interest of plaintiffs in the same.” It was further admitted, in substance, that the purchase-money for said land was fully paid, two-fifths thereof to Jane A. H. Fiélder; that, on a’ final settlement .made by the said James II. Fielder of his administration upon the estate of L. B. Fielder, he “ accounted for the proceeds of the sale of L. B. Fielder’s one-fifth interest in said land and that, on a final settlement made in April, 2865, by Jane A. H. Fielder, as the executrix of the last will and testament of Thomas L. Fielder, she “ charged herself, among other things, with the sum of $5440, which was the proceeds of the sale of the two-fifths interest of her testate in the said land, and which sum had been received by her from said sale- of December 11th, 1863.”</p> <p>The bill of exceptions purports to set out all the evidence, the substance of which, so far as material, is stated above. The court charged the jury, at plaintiffs’ written request,' that if they believe the evidence, “ they will find for the plaintiffs for two-thirds of two-fifths of the annual rent of the land in the possession of James IL Fielder, during the time he held the actual possession, with interest to this date.” The court refused to charge, at defendant’s written request, that' if they believed the evidence, they must find for her. To these rulings the defendant duly excepted ; and they are here assigned as error.</p> <p>(1) If the sale of the land was void, as is insisted by plaintiffs, then it is clear that James LI. Fielder’s holding was adverse to the plaintiffs; he claimed the lands as his own, and did not recognize the lights of plaintiffs.— Weaver v. Jones, 24 Ala. 420; Gillaspiev. Osbnrn, 13 Am. Dec. 136; Adams on Eject, p. 54, and note 1 ; Tyler on Eject. & Ad. Pos. p. 86Í; 4 Wait’s Ac. & Def. p. 179. If Fielder’s possession was adverse to plaintiffs’ title, it is perfectly clear that no action for use and occupation will lie in their favor. In such a case, they must-resort to the action of trespass.-— Weaver v. Jones, supra; Butler v. Cowles, 19 Am. Dec. 612; Smith v. Stewart, 6 Johns. 46; Lankford v. Green, 52 Ala. 103. (2) But if Fielder’s possession was not adverse, the lands were sold by the consent of the other tenants in common, and were paid for. By the sale and purchase Fielder then acquired a perfect equity to the interests of such other tenants, and became a tenant in common with plaintiffs. The law is now well settled that where one tenant in common occupies, as in this case, instead of renting out, the whole, or the whole of a part of the common estate, no action will lie against him in favor of.his co-tenants for rent. Everts v..Beach, 18 Am. Rep. 169; Chambers v. Chambers, 14 Am. Dec. 585. This was the universal rule at common law, and to remedy it, the statute of 4 and 5 Anne' was passed ; but we have no such statute in this State. This rule must not be confounded with the rule in cases where one co-tenant rents out the common property, with tlie assent of his co-tenants, and receives the entire rent. In such cases, it is held that such co-tenants may maintain an action for their share of the money so received. But the action in this case is not of that character, nor do the admitted facts show any renting out by Fielder, but a personal occupancy. (3) Though the deed executed to Fielder by the commissioner may be void, yet, his holding under it is under color of title. — Allen v. Kellam, 69 Ala. 442; Tate v. Southard, II Am. Dec. 578, and notes; Molton v. Henderson, 62 Ala. 126. It is the policy of our law to shorten the period for which rent may be recovered of one claiming land under color of title. It has, therefore, been enacted that such persons shall not be responsible for rent for more than one year before the commencement of the suit. This rule is not limited to the recovery of rents in actions for the real estate itself, but applies to all actions, in which such recovery is sought, whether at law or in equity. — Code of 1876, § 2966; Dozie?' v. Mitchell, 65 Ala. 511. Rent being claimed in this suit for the years 1.S6I-69, inclusive, and the last year for which rent is claimed being more than eleven years prior to the commencement of the suit,, the plaintiffs must fail on this ground.</p>

Tried before Hon. Jno. S. Bentley. This was a proceeding to have set apart to Catherine Hubbard, as widow of James H. Hubbard, deceased, personal property belonging to the estate of said decedent to the value of one thousand dollars, as exempt to her under the statute from administration.

Tried before Hon. Jonathan Haralson. ■ Tliis was a trial of the right of property under the statute in and to certain seed cotton, which had been levied on by the sheriff of Dallas county, under an attachment issued out of said court at the suit of Meyer Bros., the appellees, against Lewis Taylor and Jordan Craig; and which was delivered to Mrs. Octavia Cook, the claimant in the court below, appellant here, on her making the affidavit, and giving the bond required by the…

Tried before Hon. Tiios. H. Watts, sr., Special Judge. This was an action by William Youngblood against Clifford A. Lanier, as the keeper of a public hotel or inn in the citjr of Montgomery, known as the “Exchange Hotel,” to recover damages for the loss of money and jewelry, alleged to have been stolen or wrongfully taken and carried away from plaintiff’s room, while he was a guest at said hotel. The pleadings, other than the complaint, are not set out in. the record.

IT. D. Clayton. This was an action on the case by George C. Napier against Sterling J. Foster, to recover damages for the malicious prosecution of the plaintiff by the defendant, and was commenced on 10th August, 1*81.