Volume 74 — Alabama Reports

From the City Court of Montgomery. Tried before the Hon. Tiros. M. Arrington.

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

From the Circuit Court of Butler. Tried before the Hon. Jno. P. Hubbard. The defendant in this case, Wesley Williams, was indicted for the murder of Walton McHenry, “by striking him with a rock, or with a stone, or with a brick-bat;” was tried on issue joined on the plea of not guilty; was convicted of murder-in the se.cond degree, and sentenced to the penitentiary for the term of sixteen years.

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

From the City Court of Montgomery. Tried before the Hon.'Tnos. M. Arrington. The defendant in this case, George Jackson, was indicted for the murder of Adam Howard, “ by striking him with a gun,” or, as' alleged in the second count of the indictment, “ by cutting him with a razor;” and being duly arraigned, and tried on issue joined on the plea of not guilty, he was convicted of manslaughter in the first degree, and sentenced to the penitentiary for the term of ten years.

Tried before the Hon. Jas. E. Cobb. The indictment in this case, which was found at the Spring term, 1883, charged, “that John White, a white man, and Emma Dauby, a negro woman, did live together in a state of adultery or fornication.” A nolle pros, was entered as to the woman ; and the defendant White, “ before pleading to the indictment,” as the bill of exceptions states, “moved the court to quash said indictment, because it was not indorsed filed, and because it did not…

From the Circuit Court of Butler. Tried before the Hob. Jno. P. Hubbard.

From the Circuit Court of Jackson, on change of venue from-Marshall. Tried before the Hon. H. C. Speaks. • The indictment in this case charged the defendant, James M. Pain, with the murder of Bluford Johnson, by shooting him with a pistol. On a former trial, the defendant was found guilty of manslaughter in the first degree; but the judgment was reversed by this court, and the cause remanded. — See the report of the case in 70 Ala. J-7.

Prom the Circuit Court of Limestone. Tried before the Hon. H. C. Speaks. The indictment in this casé charged the defendant, Scott Hobbs, with the larceny of a cow, the property of James Wilson.

<p>From the Circuit Court of Butler.</p> <p>Tried before the lion. Jno. P. Hubbard.</p>

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 13th April, 1882, by Doctor B. Sapp, against the persons composing the partnership of Cowan & Co., a mercantile firm doing business in Nashville, Tennessee; and sought to set aside a sale of lands under execution in favor of said Cowan & Co., at which they became the purchasers, to cancel and set aside the sheriff’s deed to them, to have their judgment entered satisfied, and to enjoin an action of…

Heard before the Hon. N. S. Graham. The original bill in this case was filed on the 13th September, 1877, by Thomas J. Cochran, Thomas… Held: for reasons herewith filed, that the said Miller is not entitled to any homestead as against any of the parties to this suit, and that when the said Cochran took possession of all of said lands as said trustee, as alleged in the original .bill, it must be regarded and held that he did so in the interest of all the parties interested…

Tried before the lion. II. C. Speake. This action was brought by O’Bryan & Washington, partners doing business in the city of Nashville, Tennessee, against L. R. Clover and Milton Humes, as partners doing business under the firm name of Clover & Humes; and Clover having died, the suit was prosecuted to judgment against Humes alone, as surviving partner.

Clair. Tried before the Hon. Leboy F. Box. This action was brought by Jule L. Jordan against the appellee, a domestic corporation, to recover damages for an alleged malicious prosecution ; and was commenced on the 10th April, 1882.

Tried before the Hon. Leroy F. Box. This action was brought by Thomas H. Tabor, against William M. Peters and James M. Peters; was commenced on the 14th April, 1883, and was founded on the defendants’ two promissory notes, for $75 and $50 respectively, each dated June 2d, 1882, and payable on the 1st October next after date, to the plaintiff or bearer.

Tried before the Hon. Ti-ios. M. Arrington. This action was brought by Mrs. Celestine Eslava, against Frederick Wolffe; was founded on a judgment for $777, besides costs, which the plaintiff had recovered against the defendant,, on the 18th March, 1868, in the City Court of Mobile; and was commenced on the 7th August, 1880.

Heard before the Lion. Thomas Cobbs. This appeal was sued out from a decree of the chancellor sustaining a demurrer to a cross-bill, which was filed by Joseph A. Pettus, individually and as administrator of the estate of H. J. Cartwright, deceased, together with M. T. Cartwright, against Mrs. Sarah A. McKinney, the widow of James LI. McKinney, deceased, together with the children and heirs of said McKinnéy, and the heirs at law of William E. Eddins, deceased.

Heard before the Hon. N. S. (xraiiam. The original bill in this case was filed on the 17th February, 1877, by Thomas IJ. Conner and his wife, who was a daughter of William H. Moore, jointly with the other children of said Moore, against Elon (x. Smith, Robert Ii.

Tried before the Hon. Jas. E. Cobb. ' This action was brought by Mrs. Lydia H. Pope and others, children of Mrs. Mildred A. and George G. Holcombe, deceased, and grandchildren of George R. Clayton, deceased, against Mrs. Sarah J. Pickett, to recover a tract of land particularly described in the complaint; and was commenced on the 26th January, 1870.

Heard before the Hon. Jno. A. Foster. These two eases were argued and submitted together, both in the court below, and in this court. Held: 1st, that the .transfer of the notes by Daniel to Preston & Co., by delivery merely, did not pass the vendor’s lien ; 2d, that the subsequent indorsement in writing, being without consideration, could neither create nor revive, in favor of the assignees, a right to enforce the vendor’s lien on the land; 3d, that Daniel had a lien on…

Heard before the Hon. Jno. A. Foster. The original bill in this case was filed on the 6th September, 1882, by Edward B. Roper, against W. W. Wilkinson; and sought, 1st, a redemption of lands from under a mortgage, winch the complainant had executed to the defendant to secure unpaid purchase-money; 2d, an account of the alleged mortgage debt, and the several partial payments made on it; 3d,'an injunction of an action at law founded on-the mortgage; 4th, an abatement of the…

Appear from the Circuit Court of Lawrence. Tried before the Hon. H. C. Speakb. This action was brought by John ~W. Bayliss, to recover damages for the killing of a horse by the alleged negligence of the defendant’s servants, and was commenced on the 10th December, 1881.

Tried before Hon. John P. ITujbbard. This action was brought by Mrs. Mary J. Houston, against T. L. Farris and W. D. McCurdy as partners, and was commenced on the 14th November, 1881. The complaint contained five counts, the third and fourth of which claimed damages for the breach of a written agreement, by which defendants bound themselves to erect certain improvements on lands rented to them by the plaintiff; and no recovery was claimed under them.

Tried before the Hon. Leroy F. Box. This action was brought by R. O. Randall, against the appellant, a domestic corporation, and was commenced on the 5th April, 1879.

Heard before the Hon. Jno. A. Foster. The original bill in this case was filed on the 17th November, 1877, by Joseph L. Hinson, as the… Held: 1st, that the provisions of the will as to keeping the estate together, buying and selling property, created a personal trust in the widow, which could not be devolved upon the administrators with the will annexed, nor be executed by them; 2d, that the administrators, having given a joint bond, and acted jointly in the matters of…

Appear from the Chancery Court of Butler. Heard before the Hon. John A. Foster. The bill in this case was filed on the 4th December, 1882, by Lewis C. Stuart, against W. W. Wilkinson, praying an equitable division of certain lands, particularly described in the bill, and an injunction of' further proceedings in the Probate Court, under a petition filed by said Wilkinson, to have the lands solds, on the ground that they could not be equitably divided without a sale.

Tried before the Hon. H. C. Speake. This action was brought by Barton B. Smith, against the appellant, a domestic corporation; was commenced on the 6th February, 1882, and was founded upon a promissory note, dated January 3d, 1881, of which the following is a copy: “ Thirty days from date, we promise to pay B. B. Smith one hundred dollars, as rent of store at Boyd’s Switch, for the year 1880; said B. B. Smith agreeing to hold us harmless against claim of James K. Wright. “…

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on 30th September, 1879, by David C. (xoodlett, against John W. Hansell and others, children and heirs of John H. Hansell and Carrie R. Hansell, both deceased, and against one Terence Kelly; and sought the specific execution of a contract for a sale or exchange of lots, alleged to have been made between the complainant and Mrs. Hansell, on or about the 29th June, 1873.

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 25th September, 1883, by J. P. and J. S. Timberlake, as the administrators of the estate of Henry Bunn, deceased, against John P. Bynum and wife, and against the persons composing the partnership of Bailey, Davis & Co., a mercantile firm doing business in Nashville, Tennessee; and sought, 1st, the reformation of a mortgage, executed to the complainants by said Bynum and wife, by correcting an…

Heard before the Hon. Jno. A. Foster. The bill in this case was filed on the 29th April, 1874,'by Benj.

Heard before L. B. Cooper, esq., as special chancellor. ' The bill in this ease was filed on the 27th May, 1875, by the appellants, as creditors of Robert E. .Tweedy, against said Tweedy and his wife; and sought to set aside, on allegations and charges of fraud, certain conveyances of property by said Tweedy to his wife.

Heard before the Hon. John A. Foster. The original bill in this case was filed, on the 19th April, 1882, by IJriah Blackshear, against James F. Dugan and his several infant children by his deceased wife, Nancy F. Dugan; and sought to have a receiver appointed to take possession of certain property then in the possession of said Dugan, to preserve it from waste pending the suit, and to have it sold, if necessary, in order to effect an equitable division among the children, as…

Heard before the Hon. Jno. A. Foster. The original bill in this case was filed on the 12th December, 1881, by Francis M. Searcy, against W. W. Wilkinson, Jacob L. Schley,and .others; and sought, principally, a decree ascertaining how much the complainant should be compelled to pay, and to whom, on a note which he had given for a part of the purchase-money for a tract of land sold and conveyed to him by said Schley, and to enjoin the several defendants from asserting any…

Tried before the Hon. John Moore. This action was brought by Carey May and others, children and heirs at law of Wm. S. May, deceased, against Spencer C. Marks, to recover a tract of land containing about one thousand acres, together with damages for its detention; and was commenced on the 5th February, 1883.

Heard before the Hon. H. C. Speake. This action was brought by Walter B. Robinson, against Martha Allison, to recover the possession of a certain lot or parcel of land in Huntsville, with damages for its detention; and was commenced on the 10th August, 1880.

Tried before the Hon. PI. C. Speake. This action was brought by Henry Bunn and John P. Timberlake, against 'William Washington and Walter Rosser ; was commenced on the 15th April, 1875, and wás founded on an injunction bond, executed by said defendants (jointly with W. A. Austin, since deceased), and conditioned as follows: “Now, if the said Walter Rosser, William Washington and W. A. Austin, or either of them, shall pay the said Henry Bunn and John P. Timberlake all damages…

Appeals from the Circuit Court of Limestone. Tried before the Hon. H. C. Speake. These two appeals are parts of one and the same case, and were argued and submitted together.

The record in this case shows that, on the 13th June, 1881, Mrs. Polly Ann Joseph, as the widow of Julius Joseph, deceased, filed her petition in said Probate Court, asking that a parcel of land in the town of Stevenson, containing about eight acres, and alleged to be of the value of about $300, of which her said husband died seized and possessed, be set off and allotted to her and her minor children as their homestead exemption ; that the petition came on for hearing on the…

Heard before the Hon. Thos. M. Arrington. The bill in this case was filed on the 1st June, 1883, in the name of the State of Alabama as complainant, against Isaac H. Yincent, la.te treasurer of the State, his wife and children, and several other persons; and sought, principally, to set aside certain conveyances of property to Mrs. Yincent, made or procured to, be made to her by her husband, on the ground that they were without consideration, and were fraudulent as against…

Heard before the Hon. Jno. A. Foster. The bill in this case was filed on the 20th January, 1881, by Felix O. Farmer, against William IL Parmer, and the heirs at law of Joseph M. Parmer; and sought to redeem certain lands, which had been sold under a power contained in a mortgage executed by the complainant to said William K. Parmer, and which said W. K. Parmer held and claimed under a conveyance from the purchaser at that sale.

Heard before the Hon. Trios. M. Arrington. The bill in this case was filed on the 15th December, 1881, by the Alabama Gold Life Insurance Company, a domestic corporation, against Margaret L. Chilton and others; and sought to foreclose a mortgage on certain real estate in the city of Montgomery, known as the “Montgomery Female College” property.

Heard before the Eton. John A. Foster. The original bill in this case was filed on the 14th February, 1882, by Robert S. Williams, against Mrs. Sallie McCarty and her husband, M. F. McCarty, or Fletcher McCarty; and sought to enforce a vendor’s lien on a tract of land, for an alleged balance of purchase-money remaining unpaid.

Tried before the Hon. Jno. P. Hubbard. This action was brought by Mary A. Lide, against Essex Crockett; was commenced by original attachment, sued out on the 4th October, 1880; and was founded on the defendant’s note for $75, which was dated January 12th, 1880, payable on the 1st day of November then next, to B. Temple, by whom it was transferred to plaintiff, and purported on its face to be given “for land rent.” The defendant pleaded, “in short by consent, 1st, non…

Tried before the Hon. Leroy F. Box. This action was brought by Samuel F. Ryan, against Arthur C. Beard and Columbus Kilpatrick, to recover the possession of a tract of land, with damages for its detention ; and was commenced on the 18th December, 1876. Beard died pending the suit, and it was thereupon revived against his heirs and personal representative, Kilpatrick being in possession as the tenant of Beard.

Heard before the Hon. A. Woods. The record in this case shows that, on the 14th June, 1882, Mrs. M. C. Sorrell filed her petition in said Probate Court, claiming a homestead exemption in the lands of her deceased husband, S. D. Cochran, for the benefit of herself and two infant children who resided with her, and praying the appointment of commissioners to set apart and allot such homestead to her; that said court, on the same day the petition was filed, appointed six…

Heard before the Hon. Tiros. M. Arrington. The appeal in this case is sued out from a judgment or decree of said court, sitting in equity, overruling a motion to dismiss the bill for want of equity; and that decree is assigned as error. The facts are stated in the opinion of the court. — The bill is wanting in equity. If the complainant has any right of exemption in the crops, it is a legal right, and can only be asserted in the Probate Court, — O'Gonnerv.

Heard before the Hon. John A. Foster. The bill in this case was filed by McCormick Pruitt, against B. S. McWhorter, and sought a settlement of the accounts of á partnership in merchandizing, which had existed between the parties under the name of McWhorter & Pruitt. After answer filed, the chancellor ordered a statement of the accounts by the register; and several exceptions to his report, as to contested items in the account, were reserved by each of the parties.

<p>Appeal from the Circuit Court of Lawrence.</p> <p>Tried before the Hon. H. C. Speake.</p> <p>This action was brought by Joseph A. Bruton, against Joseph M. Lewis, to recover the sum of $200, deposited by plaintiff with defendant, as a stakeholder, on a wager with Thomas H. Jones as to the result of the election between Gen. J. Wheeler and Col. W. M. Lowe, candidates for Congress from the 8th congressional district, at the general election m November, 1880; and was commenced on the 10th March, 1881. The first count of the complaint was in these words: “Plaintiff •claims of defendant $200, paid to defendant on the 25th October, 1880, as a wager between plaintiff and one Thos. H. Jones on the result of the election between Joseph Wheeler and William M. Lowe for Congress, from the 8th congressional district of Alabama, at the election held on the 2d November, 1880; .and plaintiff avers that he has demanded said money from defendant, which he failed and refused to pay; and plaintiff claims and sues for the same, with the interest thereon.” The defend.ant demurred to this count, “ because it does no.t allege that plaintiff demanded said sum of money from defendant, as a .stakeholder, before the same was paid over to the winner, or gave notice to the-defendant not to pay the money over to the winner, or to any other person than plaintiff himself.” The •court overruled the demurrer, and the cause was tried on issue joined on the plea of the general issue, and on a special plea which .averred that the defendant paid the money over to said Jones before any demand or notice by plaintiff.</p> <p>The evidence adduced on the trial, as set out in the bill of •exceptions, did not show on what day the money was paid by the defendant to said Jones, nor on what day the official certificate of election was issued to Gen. Wheeler. W. W. Simmons, a witness for plaintiff, testified, that he was in Courtland “ a few days after the election was over, and heard plaintiff talking to said Jones; that plaintiff proposed to withdraw the bet; and that Jones replied, Wheeler was elected, and Lewis had padd the money over to him.” J. E. Galey, another witness for plaintiff, testified, that he went with plaintiff to see defendant, and heard him ask defendant for the money, and tell him not to pay it to Jones; and that plaintiff further said, in that conversation, “ that he was willing to withdraw the bet, or to let it stand until after Col. Lowe had contested.” As to the time when this conversation occurred, the witness said, that “ he could not locate the time exactly, but he thought it was within a week after the election, though it might have been ten days after the election.” The defendant himself testified, as a witness in his own behalf, “ that after the election was over, and after the returns had all come in, and it was ascertained and publicly announced that Wheeler was elected, Jones demanded-the money which he held as stakeholder, and he paid it over on said demand: that he could not say positively hów long after the election this occurred, but he thought it was from five or six to eight days; that he was certain the returns were then all in, and it was publicly announced that Wheeler was elected; that the returns from all the counties showed a majority for Wheeler, and it was notorious that he was elected; that plaintiff had not, at that time, in any way notified him not to pay the money to Jones, and he had not then heard that there was to be any contest.” This was all the evidence adduced as to the time when the money was paid to Jones, or when the notice by plaintiff not to pay was given.</p> <p>The defendant requested the following charges, which were in writing: 1. “If the jury believe that the defendant had paid the money over to Jones after the election of Wheeler was publicly announced, and before any demand for the money was made by plaintiff, or notice given not to pay it to Jones, then the plaintiff can not recover in this action.” 2. “ The certificate of election, when issued, takes effect by relation from the day of election, and that the defendant, is protected by the certificate in the payment which he made.” 3. “If the jury believe, from the evidence, that defendant paid the money to Jones after the election was over, and before he had notice from plaintiff not to pay it over, defendant is not liable in this action, and the jury will find a verdict for him.” The court refused each of these charges, and the defendant excepted to their refusal.</p> <p>The overruling of the demurrer to the complaint, and the refusal of the. charges asked, are now assigned as error.</p>

<p> Final Settlement of Administrator's Accounts. </p> <p>1. Sufficiency of exception. — It is the office of a bill of exceptions to point out, clearly and distinctly, the error of which the party complains; and a general exception to several rulings, one of which is free from error, or which are only objectionable in part, will not be sustained.</p> <p>2. Objection to credit claimed by administrator. — When an administrator, on final settlement of his accounts, claims a credit for an account held by him against his intestate, part of which is barred by the statute of limitations, an objection to its allowance, not limited to the part which is barred, but addressed to the entire account, may be overruled entirely; and the same rule applies to an objection to the allowance of interest on the account, when part of it is a proper charge.</p>

Heard before the Hon. Thomas Cobbs. The bill in this ease was filed on the '31st March, 1879, by B. R. Garland, against Robert H. Watson ; and sought to set aside a sale of lands under a power contained in a mortgage, made by said Watson as mortgagee, and at which he became himself the purchaser.

<p> Statutory Real Action in nature of Ejectment. </p> <p>1. Verbal admission as to title to land.&emdash;In ejectment, or the statutory action in nature of ejectment, both parties claiming through mesne conveyances from the same person, one of the plaintiff’s deeds having been lost or destroyed, and the secondar}' evidence being conflicting as to the form and sufficiency of its execution, plaintiff’s verbal admission that he never had any title to the land, .or any interest therein, is relevant and competent evidence for the defendant.</p> <p>2. Same.&emdash;So, although the mere return of a deed by the grantee to the grantor would not effect a divestiture of the title, the plaintiff may be asked “if he did not return the land papers to said C.,” his vendor; the fact of such return being relevant to the question, whether they were not worthless as a'conveyance.</p> <p>3. Agreement as to testimony of absent witness.&emdash;When there is an agreed statement as to the testimony of a witness supposed to be absent, but who comes into court during the trial, the statement should be suppressed, if duly objected to, and the witness examined orally; but the objection is waived, if not interposed until after the statement has been read to the jury.</p> <p>4. Contents of transcript. — The'bill of exceptions reserved on a former trial being no part of the transcript on a second appeal, no costs 'will be allowed for it.</p>

Tried before the Hon. Leroy F. Box. This was a statutory trial of the right of property to a bale of cotton, and fifty bushels of cotton-seed, on which an attachment was levied in favor of. James L. Jackson, and to .which a ■claim was interposed, under the statute, by James S. Bain.

Tried before the Hon. Jno. P. Hubbard. This action was brought by Jeannetta Williams, an infant, suing by her next friend, against Robert Barber and his wife, to recover the possession of a city- lot in Montgomery, particularly described in the complaint, with damages for its detention ; and was commenced on the 3d May, 1882.

Tried before the Hon. Jno. P. Hubbard. This action was brought by Mary Pollard and others, against John M. Hanrick and others, to recover a tract of land particularly described in the complaint, with damages for its detention; and was' commenced on the 24th May, 1881.

Heard before the Hon. Jno. A. Foster. The bill in this case was filed on the 2d July, 1879, by J. H. Adams, as a simple-contract creditor of Munter & Brother, a mercantile partnership doing business in the city of Montgomery, against the said Munter & Brother, individually and as partners, and against J. Abraham & Brother, another mercantile firm in Montgomery; and sought to set aside, on the ground of fraud, a judgment which Munter & Brother had confessed in favor of said…

<p> Rill m Fguity to set aside Awcurd. </p> <p>1. Presumption in favor of decree. — Where a decree is rendered on pleadings and proof, and the testimony is not set out in record, this court will presume that the decree was sustained by the proof.</p>

Heard before the Hon. Thomas Cobbs. The bill in this case, in the nature of a bill for the specific performance of a contract, was filed on the 26th February, 1883, by Susan E. Williams, the widow of William S. Williams, deceased, ag&inst Stephen Simpson; and sought to compel an allotment to her of a portion of a tract of land, which her husband had bought from said Simpson, according to astipulationcontained in the bond for title. The contract of sale was made in July, 1874.

Heard before the Hon. Thos. M. Arrington. The bill in this case was filed on the 29th September, 1881, by Mrs. A. Roswald, suing as a judgment creditor of J. R. Wing, against the said Wing and his wife, together with Separate answers were filed by Wing and wife, but not under oath (the complainant having waived answers under oath), denying the charges of fraud, and alleging that the money paid for the house and lot belonged to the statutory estate of Mrs. Wing; and in their…

Heard before the Hon. Tiiomas Cobbs. The bill in this case was filed on the 20th July, 1880, by the appellants, a mercantile partnership doing business in Nashville, Tennessee, against Edmund C. Winston and John M. Nail; ahd sought to have two mortgages, executed by said Nail to said Winston, declared a general assignment under the statute (Code, § 2126), enuring to the equal benefit of all the grantor’s creditors.

Tried before the Lion. John Moore. This action was brought by Yincent EL Bell, against John A. Tyson and T. P. Lightfoot, to recover damages for the defendants’ conversion of certain bales of cotton, on which the plaintiff claimed to have a lien, of which lien he alleged that the defendants had notice when they received and sold the cotton ; and was commenced on 6th October, 1881.

Cullman. Tried before the Hon. H. C. Speake. This action was brought by F. J. Schlosser, against A: Welden, to recover the possession of a tract of land, which was described as “ the south half of the south-west quarter of section 26, township 10, range 4, westand was commenced before a justice of the peace, on the 8th June, 1882.

Heard before the Hon. John A. Foster. The original bill in this case was filed on the 17th August, 1878, by the Campbell Printing Press and Manufacturing Company, a corporation chartered under the laws of New York, against J. M. Falkner and others; and sought the foreclosure of a mortgage which said Falkner had executed to the complainant, an account, and the marshalling of securities as between the complainant and the several defendants who claimed liens on the mortgaged…

Tried before the Hon. William Richardson. The appeal in this case was sued out on April 5th, 1882, from a judgment and decree of said Probate Court which was rendered and entered of record on March 4th preceding, and founded on the verdict of a jury returned into court on the morning of that day ; and 'a motion to dismiss the appeal was submitted by the appellee, on the ground that it was not taken within the time prescribed by law.

Tried before the Hon. H. E>. Clayton. This action was brought by Thomas Moore, against Melton Helms, to recover the possession of a tract of land, with damages for its detention ; and was commenced on the 8th October, 1880.

Heard before the Hon. N. S. Graham. — (1.) The complainant’s own testimony shows that he has no interest in the subject-matter of this litigation, and hence no right to maintain the suit; that he has never paid his outstanding note, which belongs to Mrs. Waters, and to whom Young promised to pay it. Rcvpier v. Gulf City Paper Go., 64 Ala. 33.0; Winter v. Merrick, 69 Ala. 86; Bryan v. Hendrix, 57 Ala. 387.

Tried before the Hon. John P. Hubbard. This action was brought by Joseph E. Bates, against P. A. Motes, to recover damages for an alleged malicious prosecution for an assault and battery ; and the trial was had on issue joined on the plea of not guilty. The particulars of the difficulty between the parties, out of which the prosecution grew, are stated in the opinion of the Court.

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 12th March, 1880, by John Lewis, against John A. Allen and others; and sought the rescission of a contract, by which complainant sold and conveyed to said Allen a tract of land, a cancellation of the' conveyance, and an account of' the rents and profits of the land while in the possession of the several defendants. The land contained eighty acres, and the price paid was $15.

Tried before the Hon. John P. Hubbard. This action was brought by Warren T. Shows, against Thomas A. Sikes, to recover the possession of a parcel of land which was described in the complaint as “Lot No. 2, of Square No. 8, in the town of Rutledge, in said county and State,” with damages for its detention.

Appeal'from the City Court of Montgomery. Tried before the Hon. Thos. M. Arrington. This action was brought by, John A. Minnis against Frederick Wolffe, to recover an alleged balance due on account of moneys deposited by plaintiff with the banking-house of Wolffe, Hertz & Co., of which the defendant was a partner. The complaint contained only the common money counts.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 28th June, 1881, by John E. Eoney, against James Moss and Wyatt S. Oates; and sought a divestiture of the legal title to a tract of land out of said Moss, and an injunction of an action at law which he had brought against the complainant to recover the possession.

<p> Action on Statutory Detinue Bond. </p> <p>1. Transcript, and costs thereof. — The court complains of the confused state of the transcript in this case, and orders that no costs shall be allowed for it.</p> <p>2. Plea of tender. — When a tender is pleaded, accompanied with the payment of the money into court, and the plea is sustained, the defendant is entitled to a verdict, but the money deposited becomes the property of the plaintiff.</p> <p>3. Payment of mortgage debt, as defense to action founded, on mortgage. When the mortgagee of personal property brings detinue, or the statutory action for the recovery of specific chattels, and the plea of payment is interposed, the inquiry is limited to the mortgage debt, and other debts or matters of account between the parties are not within the issue. If any part of the mortgage debt remains unpaid, though the mortgagee may owe the mortgagor another debt of equal or greater amount, the plea is not sustained, and the plaintiff is entitled to recover; and if the mortgage debt is fully paid, the defendant is entitled to a verdict, without regard to other debts or demands; consequently, the judgment on such issue is conclusive only as to the mortgage debt.</p> <p>4. Attorney’s fees, costs, travelling expenses, &c., as damages. — In an action on a statutory bond given by the plaintiff in detinue (Code, § 2942), attorney’s fees, and costs incurred in that suit (if not previously recovered), as well as any damages actually sustained from the seizure and detention of the property, are legitimate subjects of recovery; bnt loss of time, and -hotel bills paid; while engaged in procuring sureties on the replevin bond, or in attendance on the trial, are too remote and variable-</p> <p>5. Parol evidence as to consideration of writing. — A landlord having procured a merchant to make statutory advances to one of his tenants, from whom a crop-lien note was taken by the merchant, and having executed to the merchant a writing in these words, “I hereby agree and obligate [myself ] to bear half the loss, provided the crop does not pay said F. [merchant] five hundred dollars, for furnishing J. and his hands during the year 1879;” parol evidence is admissible, to show that the consideration of the .writing was the agreement and promise of F. to furnish supplies to said J. to the amount of five hundred dollars.</p> <p>6. Statute of frauds, as to promise to answer for debt or default of another. — Such writing is itself void under the statute of frauds (Code, § 2121), being a promise to answer for the debt or default of another, and not expressing on its face the consideration on which it was founded.</p> <p>7. Contract between landlord and merchant furnishing supplies to tenants ; respective rights and liens under. — If a merchant agrees and promises, at the instance of the landlord, to make statutory advances to his tenants to a specified amount; and the landlord, in consideration thereof, agrees to be responsible for the debt, and transfers his rent contracts as collateral security for its payment; the merchant can not enforce this obligation, when it is shown that he failed to furnish supplies to the full amount specified; but, if he complied fully with his undertaking, he would be entitled to payment out of the crops, in preference to the landlord’s claim for rents.</p>

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

Prom the Circuit Court of Barbour. Tried before the Hon'. H. D. Clayton. The indictment in this case charged; that the defendant, Brock Owens, “ without legal cause, or good excuse, did enter on the premises of Gilbert McCall, after having been warned, within the six months preceding, not to do so; against the peace,” &c. The cause was tried on issue joined on the plea of not guilty.

From the Circuit Court of Barbour. Tried before the Hon. Hf D. Clayton.

<p> Statutory Real Action in nature of Ejectment. </p> <p>1. Plea of not guilty, and disclaimer. — In a statutory action in the nature of ejectment^ the plea of not guilty is a conclusive admission of the defendant’s possession of the land sued for, and a denial of the plain-' tiff’s title thereto (Code, §§ 2962-3)-; while a disclaimer is an admission of plaintiff’s title, and a denial of defendant’s possession; and these two defenses, being incompatible, can not be pleaded together in the same action.</p> <p>2. Sam.e, where question is as to location of boundary line. — Where the land in controversy is a narrow strip lying along the section line which divides the lands of the two parties, each claiming it as a part of his section, and the complaint describing it as a part of the plaintiff’s section ; the plea of not guilty being a conclusive admission of the defendant’s possession of the land sued for, he can not be permitted to prove that said land was not in fact a part of plaintiff’s section, as averred in the complaint; while a disclaimer, if not controverted, would entitle plaintiff to judgment for the land, without damages or costs, and leave the location of the boundary line to the sheriff, assisted, perhaps, by a surveyor ; thus operating a hardship on the defendant, which suggests the propriety of legislative interference.</p>

Tried before the Hon. IT. D. Clayton. This action was brought by M. Joseph, against T. P. Caw-thorn, and was commenced by original attachment, which purported to be issued by Henry Bradley, clerk of said Circuit Court, on the 24th October, 1882, and to be founded on an affidavit made before him by the plaintiff’s agent.

Court of Blount. Heard before the Hon. H. C. Spbake. The bill in this case was filed on the 1st December, 1871, on the equity side of the Circuit Court of Blount county (under the provisions of the constitution of 1868), by George Daily, against the administrator of the insolvent estate of James Reid, deceased, together with the surviving widow of said decedent, and his infant daughter, James Eliza P. Reid.

Heard before the Hpn. John A. Foster. The bill in this case was filed on the Jth November, 1882, 'by Needham Marsh, against Jefferson Marsh, who was his son, and against James Hall and wife; and sought the reformation of a conveyance of a tract of land, executed by said Hall and wife, in which the name of said Jefferson Marsh was inserted as the grantee.

From the Circuit Court of Pike. Tried before the Hon. John P. Hubbard. The indictment in this case charged the defendant, James Pell, with the willful burning of the mill and gin-house of Lee Stewart. The defendant pleaded not guilty, and was tried on issue joined on that plea.

Heard before the Hon. John A. Poster. This was a contest between the appellants, partners doing-business under the firm name of Mosely & Eley, and James-T. Norman, an attorney at law and solicitor in chancery, as to their respective rights to a fund in court, amounting to $252.77-The money was paid into court by James McLaney, as the administrator de bonis non of the estate of James L. Powell, deceased, being the amount due on a decree against the estate, in favor of A. J.…

Heard before the Hon. John A. Foster. ■ The bill in this case was filed by Goetter, Weil & Co., a mercantile partnership doing business in the city of Montgomery, against M. H Jacoby and Mark Weis; and sought to set aside, on the ground of fraud, a sale of a stock of goods by said Jacoby to said Weis.

<p>Appeal from the Circuit Court of Pike.</p> <p>Tried before the Hon. John P. Hubbard.</p> <p>cited Redfield on Railways, vol. 2, p. 82.</p> <p>cited <$¡ G. Railroad Co. v. Prewitt, 46 Ala. 6,3; Ala. <& Term. Rivers Railroad Co. v. Kidd, 35 Ala. 209; 24 Amer. Dec. 147-8, cases cited in note.</p>

Appeals from the Circuit Courts of Talladega and Cleburne. Tried before the Hon. Leroy F. Box. These two cases, though decided together, were argued and submitted on different days. Held: the plaintiffs commenced this suit, then the plaintiffs can not recover.” The plaintiffs excepted to this charge, and they here assigned it as error, with other rulings which require no notice.

Tried before the Hon. John P. Hubbard. This action was brought by Q. P. Siler, against W. S. Coleman and J. S. Carroll, to recover damages for an alleged sale and conversion by the defendants of four’bales of cotton, grown on rented lands belonging to the plaintiff, and on which he claimed a statutory lien for rent, whereby said lien, of which he alleged the defendants had notice, was lost and destroyed; and was commenced on the 21st March, 1882.

Tried before the Hon. Leroy F. Box. This action was brought by Israel II.

Tried before the Hon. John D. Hubbard. The appellants in this case, suing as partners, recovered a judgment in said court, on the 18th April, 1882, against W. T. Owens and others; and sued out a garnishment on it against J. F. &W. O. Cameron, as the debtors of said Owens. The garnishees appeared, and filed an answer, denying any indebtedness ; but their answer was contested by the plaintiffs, and an issue was thereupon .made up between them.

Tried before the Hon. Leroy F. Box. This action was brought by Edmund A. Wood, against the appellant, a domestic corporation; and was commenced before a justice of the peace, on the 12th July, 1876.

Tried before the Hon. H. D. Clayton. This action was brought by Hugh M. Comer, as surviving partner of Bates & Comer, against Daniel T. Sheehan; and was commenced on the 3d December, 1883.

■ Tried before the Hon. H. C. Speakb. This was a petition for the supersedeas of an execution, filed by James K. Wright, the principal defendant therein, and alleging these facts : O.n the 2d June, 1882, judgment was rendered against said petitioner, in favor of S. Grabfelder & Co., for $114.83, besides $9.30 costs; and upon this judgment an execution was issued, and placed in the bands of the sheriff of Jackson county. “ Said execution was levied by said sheriff, by his…

Tried before the Hon. John P. Hubbard. This action was brought by Ace Jackson, against Martin Connor and his sureties on an attachment bond, to recover damages for an alleged breach of the bond; and was commenced on the 30th December, 1882.

Tried before the lion. O. J. Semmes. This action was brought by the appellees, suing as partners, against the appellant, a domestic corporation; was founded on a policy of insurance on a quantity of “ties,” which the plaintiffs had effected with the defendant corporation, against loss or damage by fire; and was commenced on the 22d February, 1883.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 14th June, 1882, by James T. Giddens, against the county of Crenshaw and tbesheriff of said county ; and sought an injunction against a judgment which bad been rendered by the Circuit Court of said county, on the 17th March, 1882, against said Giddens and one B. B. Ingram, as sureties for one Joseph Mastín, for the fine and costs imposed on him in a criminal prosecution.

Tried before tlie Hon. H. D. Clayton. This was a contest as to the right to a homestead exemption, between J. F. Scaife as claimant, and Thomas M. Argali as plaintiff in execution. The property was described as “ lot No. 304, in square No. 16, in the city of Eufaula.;” and the evidence showed that it contained about one acre, and was worth about $1,600.

Tried before the Hon. John P. TIubbard. This action was brought by Mrs. Theresa J. Walker, the wife of W. TI. Walker, against James W. Ivey and Solomon Lee, to recover damages for the alleged wrongful taking of “ ten head of hogs,” the property of the plaintiff; and was commenced on the 23d March, 1882. The cause was tried on issue joined on the plea of not guilty, and resulted, under the rulings of the court, in a verdict and judgment for the defendants.

From the Circuit Court of Clarke. Tried before the Hon. ¥m. E. Clarke.

Tried before the Hon. ¥i. E. Clarke. This action, with several others (which were consolidated), was brought by N. W. Perry, against the persons composing the firm of A. C. Danner & Co.; and in the complaint filed in the Circuit Court, the plaintiff claimed $62, alleged to be due by account on the 1st June, 1882, and on account stated on that day, “ and for storage room by plaintiff made and provided in and about the storing and keeping of certain goods and chattels, stored…

Tried before the lion. H. D. Clayton. This action was brought by ¥m. H. Pruett against the appellant, a domestic corporation, and was founded on a policy of insurance, which the plaintiff had effected with said corporation, on the life of his-wife, Mrs. Ann B. Pruett. The assured died on or about the 10th November, 1880, and the action was commenced on the 31st January, 1881.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 10th April, 188J, by Martin O. Bobbins, against the Battle House Company, a domestic corporation, the owner of the property in Mobile known as the Battle House; and sought the reformation of the complainant’s lease of the property, by the correction of an alleged mistake in the description of the leased premises, and an injunction of further proceedings under a judgment, in an action of unlawful…

Heard before the Hon. John A. Foster. The original bill in this case in which the complainant was-described as “ Augusta Lohman, widow, seventy years of age, infirm, and without education,” was filed on the 21th July, 1883, against Louisa Bolman ; and sought the foreclosure of a mortgage on certain real estate in Mobile, or the sale of Mrs. Bolman’s interest therein, for the satisfaction of the secured debt, which was recited to be $2,000 borrowed money.

Heard before the Hon. John A. Foster. In these several cases, which were heard together in the court below, and were argued and submitted as one case in this court, bills in equity were filed by several creditors of Mrs. Emma C. Kelly, a married woman, against her and her husband, Washington C. Kelly, seeking to subject to the payment of the complainants’ several debts Mrs. Kelly’s interest in certain real estate .in the city of Mobile, which was alleged to be held by her as…

Heard before the Hon. John A. Foster. The bill in this case was filed on the 31st May, 1879, by Heyer Brothers, a mercantile firm doing business in Boston, who sued “in behalf of themselves and such other creditors standing in the same position as complainants, who desire to make themselves parties complainants to this bill, and assume their proportion of the costs of the litigationagainst Bromberg Brothers, a partnership doing business in the city of Mobile, and against…

Tried before the Hon. ¥m. E. Clarke. This action was brought by George Stoutz, against Mrs. Margaret Burke and her husband, Henry Burke, to recover the possession of a .certain tract or parcel of land in Mobile, which the plaintiff claimed under purchase at a sale under a power contained in a mortgage executed by the defendants.

From the Circuit Court of Pike. Tried before the ILon. Jno. P. Hubbard.

<p>From the Circuit Court of Baldwin.</p> <p>Tried before the Hon. ¥m. E.. Clarke.</p>

Tried before the Hon. Wm. E. Clarke. This action was brought by the appellee, a domestic corporation, against Green B. Cahall and others; and was founded on an appeal bond executed by said defendants, which was dated the 29th January, 1878, and conditioned as follows : “ The condition of the above obligation is such, that whereas the above-bound Green B. Cahall applied for and obtained an appeal, returnable to the June term, 1878, of the Supreme-Court of Alabama, to…

Tried before the Hon. Price Williams, Jr, In the matter of the final settlement of the accounts of Thomas A. Knight, as one of the executors of the last will and testament of Monroe P. Watts, deceased, after his resignation.

Heard before the Hon. John A. Foster. The bill in this case was filed on the'5th October, 1880, by Mrs. Joanna McCarthy, a married woman, whose maiden name was Millrick, or Milerick (as the name is indifferently spelled in the transcript), and who was the daughter and sole child of Richard and Mary Millrick, deceased; against the widow, administratrix and heirs of James McCarthy, deceased; and sought an account of the rents and profits of certain real estate in the city of…

<p> Indictment for Forgery. </p> <p>1. Forgery of order on merchant, for goods. — A writing addressed to a mercantile firm, in these words, “ Let A., the bearer, have what articles he wants, and present bill to be paid on 1st of month at my office,” signed “ George Spaulding, steamboat agent,” is an instrument by which a pecuniary demand or obligation purports to be created (Code, § 4340), and the false making of which, with intent to defraud, is forgery in the second degree.</p> <p>2. Sufficiency of indictment.— An indictment which charges that the defendant, “ with the intent to injure or defraud, did falsely make or forge an instrument” (or “ an instrument in writing purporting tobe the act of George S.”), “ in words and figures substantially as follows,” setting out a written order the false making of which is forgery in the second degree, is sufficient.</p> <p>3. Organization of petit jury; objection to action of court made at instance of objector. — In a criminal case, the defendant can not be heard to complain on error, that the court ordered more than the necessary number of talesmen to be summoned to complete the petit jury, when the record affirmatively shows that this was done at his instance and request.</p> <p>4. Proof and presumption as to fraudulent intent and forgery. — There being no proof of the existence of the forged order, until' it was produced by the defendant and credit for goods obtained by him on the faith of it, the jury may infer an intent on his part to defraud, and, if necessary, that he forged the paper.</p> <p>5. Charge ashed, not shown to have been in writing.- — The refusal of a charge asked, which is not shown to have been asked in writing, is not a reversible error.</p> <p>6. Charges given, but not shown to have been so indorsed. — It is not necessary that the record shall, affirmatively show that charges given on request, or refused, were indorsed as required by the statute (Code, § 3109); in the absence of a recital to the contrary, and exception duly reserved on account of it, this court will presume that the charges were properly so indorsed.</p>

Tried before the Hon. ¥i. E. Clarice. This action was brought by McMillan & Sons, a partnership suing in their firm name, against William Otis, to recover the sum of §1,708.30, the rent reserved by a written lease executed by and between J. F. Jewett, as lessor, and said William Otis as lessee, and alleged to be payable, in quarterly installments, between the 1st of June, 1876, and the 1st December, 1877. The action was commenced on the 22d December, 1877.

Tried before the Hon. Vm. E. Clarke. This action was brought by the appellant, a domestic corporation, chartered by an act of the General Assembly approved February 23d, 1860, against Lewis H. Kennerly, who was sued “ as tax-collector under special act of the General Assembly of Alabama, entitled ‘ An act for the adjustment and settlement of the debts of the city of Mobile,’ approved Dec. 8th, 1880 ; ” and was commenced on March 22d, 1882.

Tried before the Hon. ¥ii. E. Clarke. This was a contest between A. L. Young & Co. and Stoutz & Co., as to their respective rights to certain moneys in the hands of the sheriff, arising from the sale of certain property, real and personal, under execution against the Mobile Furniture Manufacturing Company, a domestic corporation.

Tried before the Hon. ¥i. E. Clarice. This action was brought by Mrs. Sallie A. Thomas, the widow of Eugene A. Thomas, deceased, against the appellant, a domestic corporation engaged in the business of life-insurance; and was founded on two policies of insurance which said Eugene A. Thomas had effected on his own life, and which were regularly assigned by him to the plaintiff.

Tried before the lion. Wm. E. Clarice. This action was brought by the appellant, a domestic corporation, against Lewis ÍÍ. Kennerly, “ as tax-collector under special act of the General Assembly of Alabama approved December 8th, 1880. entitled ‘An act for the adjustment and settlement of the debts of the city of Mobile;’” and was commenced on the 8th February, 1882.

Heard before the Hon. Price Williams, Jr. This appeal was taken from a decree and judgment of said Probate Coprt, overruling and refusing a motion to quash an execution.

Tried before tbe Hon. Wm. E. Clarke. This action was brought by George N. Stewart in his lifetime, and revived, on his death, in the name of the appellant as the executrix of his last will and testament, against Odyle Eslava, to recover the possession' of a certain tract of land, which was described as “all of square numbered nineteen (19) according to a map of Spring Hill in said county;” and was commenced on the 30th May, 1882.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 20th February, 1883, by the appellees, a mercantile firm doing business in Boston, Massachusetts, who sued as creditors of Joseph J. Zelnicker, against the said Joseph J. Zelnicker, and also against Mrs. Louise N. Zelnicker and her husband, Solomon S. Zelnicker; and sought to set aside, on the ground of fraud, a sale and conveyance of his stock of goods by said Joseph J. to Mrs. Louise N. Zelnicker,…

Heard before the Hon. John A. Foster. The bill in this case was filed on the 2d January, 1882, by Mrs. Lucy B. Noble, the wife of Edward F. Noble, against the persons composing the firm of Moses Brothers, a partnership doing business in the city of Montgomery; and sought to vacate and set aside, on allegations of fraud, undue influence, usury, and other grounds, a judgment for $13,053.35, which the complainant had confessed in favor of the defendants, in the City Court of…