Volume 75 — Alabama Reports

Tried before lion. IT. C. Speak®. The indictment in this case charges Stephen Hobbs, defendant in the court below, appellant here, with the forgery of a written instrument, which, retaining the punctuation and style of copying found in the indictment, is as follows: “Huntsville — July Mr E 33 Carter, Please send me word how long you will give Stephen to pay for the bed, and if you will allow Irina time enough to pay for it let him have a cheap bureau as cheap as possible and…

Tried before Hon. William RichardsoN. The indictment in this cause charges, that Buck Johnson, the defendant in the court below, appellant here, prior to the finding thereof, “played at a game with cards at a public house, and did bet or hazard money or bank notes at said game.” The defendant moved to quash the indictment on the ground that “the same charged, in a single count, two distinct and different offenses, punishable under the laws of Alabama with different…

<p>Appeal from City Court of Selma.</p> <p>Tried before ETon JoN. HaRALSON.</p> <p>James McElroy, defendant in the court below, appellant here, was indicted for the murder of Mary McElroy, his wife, by striking or cutting her with an ax; and on the trial he was convicted of murder in the first degree, and sentenced to death by hanging. ■ On the day set for the trial, and before the trial was begun, the defendant moved the court to quash the venire, on the ground, in substance, that among the number of jurors drawn and ordered to be summoned for the tidal, was one Sneed Mays, “who had not been summoned by the sheriff, and was not then present in court.” On the hearing of the motion, the court allowed the State to prove, against the defendant’s objection, that the deputy, who had been charged with the duty of summoning the jurors, went to the house of said Mays for the purpose of summoning him as a juror in this case, and, arriving after dark, he was told by a person whom he could not see on account of darkness, but who was, judging from his tone of voice, a negro, that Mays was absent from home on a visit in Wilcox county, and that iie would not return before the Monday of the next week; and that he thereupon returned said Mayo not found, without making any other effort to summon him. The court overruled the defendant’s motion, and refused to quash the venire; and to this ruling, and to the ruling admitting the evidence offered by the State, the defendant duly excepted.</p> <p>The State, after examining one Edith Craig as a writness, who testified “ that she saw the defendant kill his wife, last fall, in Dallas county, with an ax, and to all the facts attending the killing,” examined one James E. Kennedy as a witness, who testified that “he heard of the killing the morning it was done; that he got Mr. Lovett to go with him in pursuit of defendant, to apprehend him, and, on the way, they were joined by two young men, Mr. Edwards and Mr. King, and that they followed by his tracks in the road, and came in sight of him some seven, or eight miles from where the killing occurred. Defendant was walking rapidly, and had his budget of clothes. We rode fast and passed him. When he came up, I arrested him. lie surrendered at once. The others were a little way off when I arrested him, behind some bushes. I asked him if he killed his wife. lie said, yes. I asked him why he killed her, or what he killed her for. lie said he had the devil in him, or the devil made him kill her ; I don’t remember in which form he put it. I asked him, what he killed her with. He said he killed her with an ax. I then told one of the young men who had come up, to get a string and tie him. That was done. While tying him, or before wre tied him, or about that time, defendant remarked: ‘ You have caught me, and, Captain, you can just take me out and hang me to a tree. I am ready to die.’ We then started back, and a good deal was said, but I don’t remember all he said. He talked freely to others, Edwards, Lovett and King, who were there.” Preliminary to the introduction of the confession noted above, it was also shown that said Kennedy, when he came up to defendant, had “ a double-barrel gun, at a present arms; ” that defendant asked Kennedy not to shoot, in response to which Kennedy replied that he would not shoot if he, defendant, would surrender; that Kennedy “ kept his gun so he could use it, until he knew that they had defendant safe; ” that the defendant had known Kennedy for a long time; that nothing was said to the defendant tending to induce him to believe that it would be better for him “ to tell it all; ” that no threats were used, nor inducements offered; that the defendant seemed to he cool and reckless, and that witness, while he may have spoken in a prompt, firm tone, did not speak in an unusual tone. The defendant objected to the admission of the confession, on the ground, in substance, that it was not freely and voluntarily made; but the objection was overruled, and the confession admitted ; and to this ruling the defendant excepted.”</p> <p>“ The defendant then introduced Joe Edwards as a witness, who testified : “ I went with Kennedy to arrest defendant. I was a good step off, near by, when he was arrested. I did not know what passed between Kennedy and defendant when he was arrested. I went up. I said, ‘ Jim, yon killed your wife, or what did you kill your wife for; you are going to be hung for it.’ He said the devil made him do it. I-heard nothing that was said between him and Kennedy before. I went and got a line and tied him. On his way back he talked a good deal. Mr. Kennedy had his gun, a double-barrel, at a Íresent, facing defendant, and close to him, until he was tied. lefendant had known witness and Kennedy a number of years, and he was very humble and obedient to white men.” On the testimony of this witness, the defendant moved to exclude the confession made to the witness Kennedy; but the court overruled the motion, and the defendant excepted.</p> <p>The defendant also reserved an exception to the following charge given by the court to the jury : “That the law presumes that every person intends to do that which he does; that he must be presumed to have designed what he did, or what is the necessary consequence of his act, unless he can show to the contrary.”</p>

Tried before Hon. Joma Moore. Scip ITolley, the defendant in the court below, appellant here, was indicted for the murder of Luther Sealley, and was convicted of murder in the first degree, and sentenced to be hung.

<p> Indictment for cm Attempt to have Oarnal Knowledge of a Female under Ten Years of Age. </p> <p>1. Infant of tender years; competency of as a witness. — The sole reason that infants of tender years are not allowed to testify as witnesses is, that they do not, at the time their testimony is offered, comprehend and realize the danger and impiety of falsehood ; and hence, that an infant was of too tender years to be sworn, at the time of the occurrence of the transaction, about which he is afterwards called to testify, does not render him incompetent, but is merely a circumstance that, bears on the weight of his testimony.</p> <p>2. Same. — That an infant female was incompetent to testify on a former trial of a defendant charged with an attempt to have carnal knowledge of her, and was then so adjudged by the court, does not effect tier competency on a subsequent trial of the same case, had after new trial granted.</p>

<p> lndictm,ent for Grand Larceny. </p> <p>I. Confession: when sufficient corroboration of the testimony of an ac-eomplice. — The confession' of a defendant indicted for the larceny of a hog, a felony under the statute, that he was present when the hog was killed, and aided iti carrying away the carcass, though coupled with a denial of his complicity with the killing, is a sufficient corroboration of the testimony of an accomplice, to authorize a conviction under the statute prohibiting a conviction for a felony on the testimony of an accomplice, “ unless corroborated by other evidence tending to connect the defendant with the commission of the offense.”</p>

<p>Appeal from Wilcox County Court.</p> <p>Tried before lion. John Pubifoy.</p> <p>Thorn Bell, the appellant, was charged in the court below with the offense of petit larceny, the complaint on which the warrant was issued, and on which the trial was had being in these words:</p> <p>“ The State of Alabama, ) County Court.</p> <p>Wilcox County. j I have probable cause for believing and do believe, that the offense of feloniously taking and carrying away two turkeys, of the value of one & 50-100 dollars, the property of W. W. Moore, has been committed in said county by Thorn Bell, alias Thorn Hill, on the-day of-, 18 — .</p> <p>“ Jesse J. MooRE.</p> <p>“The above subscribed and sworn to before me this 5th day of Nov., 1883.</p> <p>“ Joi-iN Puéifoy, County Judge.”</p> <p>The opinion does not render it necessary to set out the facts disclosed by the evidence. The judgment of conviction, after finding the defendant guilty, sentences him to pay afine of ten dollars and costs. Then, after reciting that the defendant has failed to pay the fine and costs, his personal presence in court, and that he had nothing to say why the sentence of the law should not be passed upon him, it further sentences him to hard labor for Wilcox county for a designated period for the payment of the fine, and for another designated period for the payment of the costs, the amount of which is stated. Then follows a suspension of the judgment pending this appeal.</p>

Tried before lion. ¥m. E. Clarke. This was an indictment for living in adultery or fornication, against Sim Howard and Lou Smith; andón the trial both were convicted.

• Tried before lion. Vm. E. ClaeKe: The first section of the act under which the indictment in this case was preferred, provides “ that when any person is convicted and fined in any of the courts of this State, and contracts with any person or persons to confess judgment with him as his security or securities for the payment of the fine, and costs incident to such conviction, and by such contract lie agrees, in consideration of such person or persons becoming such security…

Tried before ITon. II. C. Speahle. At the fall term, 1883, of said court, George Hughes, As-bury Hughes, John W. Grayson and George Smith, defendants in the court below, were indicted for willfully setting tire to, and burning “ the dwelling house of Henry Porter, in the night-time, in which said house there was, at the time, a human being, to-wit, Henry Porter, against the peace,” etc.; and, at the next term thereafter, they were tried and convicted, and were sentenced, in…

Aiupeai, from Chilton Circuit Court. Tried before Hon. James E. Cobb. The indictment in this case was preferred under the act of the General Assembly, entitled “An act to better secure the payment of fines and costs in criminal, crises in the courts of this State (Pamph.

<p>Appeal from County Court of Sumter.</p> <p>Tried before Hon. W. R. DeLoaoii.</p> <p>The facts are stated in the opinion.</p>

ApplioatioN to this court for writ of habeas corpus, relief having been denied by Hon. Dan Goedon, Judge of Probate of Henry county. The facts are sufficiently stated in the opinion.

Apx’kaR from Eibb Circuit Court. Tried before Hon. Jamics E Cobb.

Tried before ITon. H. C. Speaee. This was an action of assumpsit by the State of Alabama, for the use of Marion county, against Oscar Metcalfe and James P. Pearce; and was founded on a promissory note executed by the defendants on 19th October, 1881, and payable to the plaintiff for the use, etc., on 19th December, 1882.

Tried before Hon. Joinsr Moojre. This was an action of assumpsit, brought by Ilnrst & McWhorter against N. J. Bell & Co., to recover for certain cotton, part of a crop raised by one Cook on a designated plantation, on which the plaintiffs claimed to have a mortgage, and which the defendants had received from Cook and sold, with notice of plaintiffs’ mortgage.

Appeai, from Greene Circuit Court. Tried before Hon. S. H. Sprott. The facts are sufficiently stated in the opinion. (1) After the declaration of homestead was filed and recorded, the land claimed became prima fade a valid homestead against any execution for debt, particularly, executions issued on judgments rendered subsequent to the time the declaration was filed.

Heard before Hon. Joira A. FosteR. This was a bill in equity, exhibited by Waldo P. Wilson against James L. Holt, Beuben W. Sharp, J. C. Gibson and G. II. Gibson, and was filed on 29th January, 1883.

<p> Bill in Equity for the Partition of Bands. </p> <p>1. Partition of lands; jurisdiction of court of equity, when title legal and possession adverse. — -A court of equity will take jurisdiction to decree partition of lands, the title to which is strictly legal, and of which the complainant has not possession, actual or constructive, but which are held or claimed adversely to him.</p> <p>2. Same. — When the title is purely legal, the intervention of a court of equity to decree partition of lands'is not matter of judicial discretion, but,^ if the title is admitted, or is clear, is matter of right in the party invoking; it; nor is the jurisdiction in such case dependent upon the existence of particular facts or circumstances, rendering inadequate the legal remedy, but is concurrent with that of courts of law; and until the jurisdiction of those courts has been putinto exercise, the court will intervene, though no special cause of intervention may be shown.</p> <p>3. Same. — Prior to the statute (Code, 1«76, § 3893), if the title was purely legal, the fact that it was disputed did not oust or exclude the jurisdiction of a court of equity to decree partition of lands, but was merely a cause for directing that the issues of fact should be determined in a court of law, and that proceedings should be stayed until they were determined; and under the statute, by its express provisions^ such issues may, if the chancellor so directs, be tried as other issues out of chancery.</p> <p>_ 4. Same. — The statute treats a suit in equity for partition, though the title be legal, as essentially an adversary suit, and contemplates that all questions arising in its progress shall be within the jurisdiction of tire court, and subject to its determination; the mere circumstance of an adverse possession, if the complainant has an immediate right of entry, will not prevent the jurisdiction of the court from attaching; and the fact that such adverse possession appears upon the face of the bill, is not material.</p>

<p> Distribution of Proceeds of Sale of Railroad among Creditors, made under Decree of Court of Equity foreclosing Mortgage. </p> <p>1. Distribution among creditors of fund realized from, sale of debtor’s property ; when erroneous. — -When a fund realized from the salé of a railroad, made under a decree in equity foreclosing a mortgage executed to secure certain bondholders of the railroad company, being insufficient to pay off the secured bonds in full, was ordered to be distributed pro rata among such of the bondholders as had come in and proved their claims, and after some, and before others of such bondholders had received from the register their pro rata share of the funds, other bondholders of the same class were allowed to come in by petition, prove their claims, and participate in the undisturbed residuum of the funds, — held, that this was manifestly unequal, unjust and erroneous ; that the only way by which the petitioning bondholders could be brought in, and enabled to share in the fund would be to recast the whole account and declare a diminished dividend, requiring each creditor who had been settled with, to refund pro rata to the register; and that this could not be accomplished by petition.</p> <p>2. Same; power of court to vacate interlocutory decree. — The decree allowing the petitioning bondholders to come in, and participate in the undistributed residuum of the fund was interlocutory, and could be subsequently altered, modified or vacated; and the decree having been made in vacation, without notice to, and without the consent of parties in adverse interest, and being improper in itself, the court, in subsequently vacating it, did not err, but only did what should have been done, with or without motion therefor.</p> <p>3. Attorney-at-law; power of court to compel payment of money into court. — When a practicing attorney receives,as such, money or any thing else of value, by virtue of an order of court, made in a case in which he is counsel, and before he has turned the same over to his client, it is ascertained and decreed that the order has been unadvisedly and erroneously granted, it is in the power of the court to order its restoration to its former custody, and to enforce obedience to such order; and, in such case, the presumed presence of the attorney in court renders it unnecessary to show actual notice prior to the primary order of restoration.</p> <p>4. Same. — If, however, compulsory measures are invoked against the attorney, there should be notice, and an opportunity to show cause should be allowed him.</p>

<p> Statutory Real Action in the Nature of Ejectment. </p> <p>1. Tenants in common; adverse possessiont. — The seizin and possession of a tenant in common constitute the seizin and possession of his co-tenants ; and an uninterrupted exclusive possession by him is not usually deemed adverse, unless accompanied by circumstances indicating an expulsion or ouster of his co-tenants.</p> <p>2. Cancellation of deed to land; effect of. — The mere cancellation of a deed to land, without a reconveyance, does not operate to reinvest the grantor witli the legal title.</p> <p>3. Tenants in common; adverse possession,. — A public repudiation by a tenant in common of his co-tenant’s title, and a hostile claim of exclusive ownership in himself, operate at once to set in motion the statute of limitations against the co-tenant.</p> <p>4. Possession of part of tract of land under color of title; effect of. Where one in possession of land holds under color of title, and there is no antagonistic possession, the actual possession of a part of the premises will"be regarded as constructive possession of the whole according to the boundaries contained in the deed or other muniment of title.</p> <p>5. Forcible entry and detainer; effect of judgment on prior actual possession. — An action of forcible entry and'detainer is strictly possessory, and can only be sustained by proof of prior actual possession, mere constructive poss&Hsion being insufficient to support it; and hence, a judgment in such action in favor of the plaintiff is, as to the fact of prior actual possession, res adjiulinata, in a statutory real action in the nature of ejectment, brought by the defendant against the plaintiff in the judgment, or against a purchaser from him, for a recovery of the possession of the premises.</p>

. Heard before Hon. N. S. Graiiaxi. This was a bill in equity, exhibited, on 7th February, 1880, by the Mobile Mutual Insurance Company, a body corporate, and a simple contract creditor of William T. Mathews, sr., against the said Mathews and others, for the purpose of having vacated and set aside, as fraudulent and void, a conveyance of land, executed by the said Mathews to his son, William T. Mathews, jr., in trust for the grantor’s wife, on 10th December, 1875, and other…

Heard before Hon. Jno. A. Fostek. This was a bill in equity, exhibited by A. P. Baker and Martin Costello against Lewis Crabtree, and filed on 16th February, 1884. Its purpose and its material averments, as well as the facts disclosed by the record, necessary to this report, are stated in the opinion.

Court. Tried before E. F. LigoN, Esquire, acting as Special Judge. This was an action by F. A. Smith against W. S. Jackson and J. C. Smith, the nature of which is stated in the opinion. The cause was tried on the plea of the general issue, the trial resulting in a verdict and judgment for the plaintiff.

Tried before lion ¥m. S. Mudd. This was an action by Phil. Pippen, suing on his own behalf, aud on behalf of the State of Alabama, against Thomas W. Roberts, in which the plaintiff sought to recover of the defendant the sum of five hundred dollars, the penalty provided by section '2681 of the Code of 1876, for his issuing, as judge of probate, to Fanny Pippen, “daughter of said plaintiff, Phil.

Heard before Hon. Tiiomas Cobbs. On 23d October, 1879, J. W. E. Lowery entered into a written contract with M. G. and B. E. Cosper, by which lie “ contracted and agreed to sell ” to them a designated tract of laud in Pickens county, in this State, at and for the sum of $1,655.40, payable in three equal installments, one on 1st January, 1881, one on 1st January, 1882, and the other on 1st January, 1883 ; and to execute and deliver to them a deed to said land, with covenants…

<p> Action against Railroad Company for Damages to Stock. </p> <p>1. Railroad companies; care and diligence in running trains. — The rule governing the duty and liability of railroad companies in running their trains is, that their employees must bestow on the service that degree oí care and diligence which very careful and prudent persons give to their own affairs of similar magnitude and delicacy.</p> <p>2. Same; presumption of negligence. — When injury has been shown to have been inflicted by a railroad company, in the running of its train, the burden is shifted to the company to repel the imputation of negligence, by proof sufficient to establish a prima facie case of proper diligence.</p> <p>3. Same; non-observance of statutory rules; liability resulting from. It is the duty of employees of railroad companies to observe the statutory regulations as to blowing whistle, etc. (Code, 1876, § 1699); and in case of injury done by a running train, which could be reasonably traced to a non-observance of these regulations, it becomes the duty of the company to prove that they had been complied with ; but this principle can not be extended to such injuries as are not caused by non-observance of the regulations.</p> <p>4. Same; diligence required of, in running trains. — The law does not require that a railroad company, in its management of a running train, should attempt the impossible in order to prevent injury or accident; yet, it must resort to the necessary appliances to prevent injury or accident, so long as there is hope; and, -when sued, the onus is on the company to show the utter fruitlessness of any attempt that might be made.</p> <p>5. Same; when company not liable for injury to stock. — If a moving train of a railroad company has a proper head-light and brakes in good order, is skillfully ■ officered, is not running at undue speed, and the officers and agents directing the movements of the train are attentive and vigilant, and guilty of no negligence, then, if by reason of the weather, or other unavoidable hinderance, an animal on the track is not seen until it is too late to save it by the use of the appliances belonging to the train, the company is not liable for the loss or injury.</p> <p>6. Same; liability for interest on damages for injury to stock. — A charge instructing a jury, in a case against a railroad company to recover damages for killing stock, that if they found the issues in favor of the plaintiff, they should ascertain the value of the stock killed, and return a verdict therefor, with interest thereon from the date of the loss to the time of the trial, is free from error.</p>

Heard before Hon. N. S. G-jsaiiam. This was a bill in equity, exhibited by Benedict, TIall & Co. and others, creditors of Crumley Bros., a mercantile partnership, “ for themselves and all others who may join with them in filing the same, by bearing their part of the costs,” against the said Crumley Bros., and against Renfro Bros., and others, for the purpose, among other things, of having declared fraudulent and void, as against the complainants, a mortgage executed by the…

Heard before Hon. Thomas Cobbs. The bill in this cause was filed on 16th September, 1879, by Thomas A. Bose against Thomas C. Clark, as the personal representative of the estates of Benjamin T. and George G. Hig-ginbotham, both deceased, and against the heirs of said decedents, and others; and the case made thereby may l}e stated as follows: On 13th November, 1863, Benjamin T. Higginbotham purchased, at a sale made by one Wilson, as administrator of the estate of Thomas 0.

Ax3peal from Mobile Circuit Court. Tried before Hon. Wm. E. Claeke. This was an action of assumpsit by W. J. Lea against Byrne & Trammell, in which the plaintiff seeks to recover for certain logs furnished by him to the defendants under a written contract executed by them, in September, 1882, whereby the plaintiff agreed to deliver to the defendants the logs at a specified price per thousand feet.

Tried before Hon. JoN. HabalsoN. This was a suit by W. TI. Conch against ¥m. E. Wailes & Co., to recover the value of a bale of cotton, and was commenced on 5th May, 1881. The complaint contains two counts, the first in trover, and the other a special count on the case. The cause was tried without a jury under the provisions of the statute creating said court, the trial resulting in a judgment in favor of the plaintiff, to which the defendants duly excepted.

Tried before Hon. LeRoy F. Box. This was an action by Charles Sehaufler against the South North Alabama Railroad Company, a domestic corporation, to recover- damages for personal injuries sustained by him while a passenger on the defendant’s train.

Tried before Hon. ¥m. E. Clakke. The nature of the action, and the material facts disclosed by the evidence are stated in the opinion. It may be added,however, that an itemized statement of the advances obtained by the tenant, Scott, from the plaintiffs, is made an exhibit to the bill of exception's, from which it appears that the principal items were for provisions, dry-goods, teams and farming implements ; there were also charges for tobacco, whiskey and snuff.

Heard before Hon. JoN. Haralson. Tliis was a bill in equity, exhibited by E. Ikelheimer & Co. against M. Gusdorf & Co., S. Lehman, Heilman & Herman and Keifer Bros.; and was filed on 15th June, 1882. The purpose of the bill, and most of the material facts disclosed by the record are stated in the opinion, rendering necessary only a brief supplemental statement in this report.

Tried before Hon. S. H. Spkott. The nature of this action is sufficiently stated in the opinion.

Ax'pbal from Cherokee Chancery Court. Heard before Hon. N. S. GRAHAM. The bill in this cause was filed on 19th August, 1879, by Jonah Green and others, “heirs and devisees” of Hudson Kirk, who died testate on 8th December, 1858, against Samuel B,.

Tried before Hon. H. D. Glatton. The facts are stated in the opinion. (1) Among other grounds, the telegraph company insists that the appellant can not maintain his action, because the damages claimed were not within the contemplation of the company at the time the contract was made. The message was purely a cipher message, and the company was not infoi med of its meaning or value, at the time of its delivery for transmission.

Tried before Hon. LeRoy F. Box. Abbott, Downing & Co., a partnership, brought this action against James Gillespy and others, to recover damages for the alleged breach of the condition of the official bond of the defendant Gillespy, as sheriff of Talladega county (the other defendants being his sureties thereon), in negligently failing to make the money on divers writs of execution issued on a judgment recovered by the plaintiffs in the circuit court of said county on 26th…

Tried before Hon. S. H. Speott. This was an action by Mrs. Mary B. Wagner against B. B.. Warren, on two promissory notes, each for $80, dated 18th April, 1878, and payable to the plaintiff’s order, one on 1st December, 1880, and the other on 1st January, 1881; and was commenced on 28th January, 1881. The defendant filed .six pleas. The averments of tiie first plea are, in substance, that the plaintiff is, and was on 29th August, 1877, a married woman, the wife of Charles Gr.

Tried before Hon. Thomas J. BuetoN. This was a motion in this court by the appellant to establish a bill of exceptions. The facts are stated in the opinion.

<p>Bill in Equity by Judgment Creditor- for Redemption of Bands.</p> <p>1. Amendment of bill in equity ; office of. — The office of an amended bill, when it is not employed under the statute for the purpose of introducing supplemental matter, facts occurring after the filing of the original bill, is the curing of defects in the original bill, and not the introduction of new matter, varying substantially the relief prayed, or the right in which it is claimed.</p> <p>2. Bill in double aspect; relief in either aspect must be the same. — While a bill in equity may be framed originally in a double aspect, or in the alternative, or, if not so framed originally, may, by amendment, be converted into a bill of that character, this does not authorize the introduction into the bill as originally filed, or as amended, several inconsistent claims to relief, founded on different states of fact, either of which, if true, would entitle the complainant to relief of a wholly different character ; but each alternative must be the foundation for like relief, or for relief of the same character.</p> <p>3. When amendment a departure from original bill. — A bill having been filed by a judgment creditor of P. against P. and others, to redeem lands which had been purchased by P. at sheriff’s sale, and afterwards redeemed from him by another judgment creditor of F., it was, by amendments, converted into a bill for the enforcement of a trust concerning the lands, alleged to have arisen from an agreement into which the complainant, P. and the other judgment creditor of F. had entered; and af-terwards, by another amendment, all the parties were stricken out except P., and the bill reduced to a demand for the recovery of damages from P., because, by an alienation to a stranger pending the suit, he had incapacitated himself from executing the trust, or performing the agreement. Held, that the amendments departed entirely from the case made by the original bill, and that there was no error in the decree of the chancery court sustaining a demurrer thereto.</p>

Tried before Hon. LejRoy F. Box. The facts are sufficiently stated in the opinion. The court erred in allowing the parol evidence introduced against appellant’s objection. Sweeney v. Thomason, 9 Lea, 359 ; Willmering v. MeGaughey, 30 Iowa, 205 ; Thorpe v. Sughi. 33 Ala. 330; Ins. Go. v. Wright, 1 Wall. 456 ; Staggv. Ins. Go., 10 Wall. 589 ; Bailey v. Railroad,17 Wall. 96; Partridgev. Ins. Co., 15 Wall. 573; Moran v. Prather, 23 Wall. 493; Davis v. Ball, 6 Cush. 505.

<p> Ejectment. </p> <p>1. Petition for sale of lands for division among joint owners; jurisdictional averment. — An application to the probate court under the statute, for the sale of lands owned by tenants in common, for division among the owners, “ must set forth the names of all the persons interested in the property ” sought to be sold. This is a jurisdictional averment; and an order of sale granted on an application which, on its face, shows that it has failed to set forth the names of all the persons interested in the property, is void, and a purchaser at a sale made thereunder acquires no title.</p> <p>2. Same. — Hence, an order for the sale of lands, in such case, granted on the application of the administrator of a deceased tenant in common, which avers that his intestate owned, in his life-time, a designated undivided interest in the lands, but does not set forth the names of the persons who owned such interest at the time of the application, or to whom it descended on the death of the intestate, is void; and the title of the heirs is not divested by a sale made under such order.</p>

Appjeal from Etowah Circuit Court. Tried before R. A. D. Dunlap, Esquire, Special .Judge. This was a statutory real action in the nature of ejectment, by P. E. Blair, suing by her next friend, Levi C. Blair, against Archibold Downing; and was commenced on 23d November, 1880.

Heard before Hon. Thomas Cobbs. The bill in this cause was filed by William Gilmer against W. K. Wallace and H. C. Speake, for the purpose of having decreed satisfied a deed of trust executed by the complainant, on 8th April, 1872, and conveying to H. C. Speake, as trustee, certain lands, to secure a debt which the complainant owed to the defendant Wallace ; and to enjoin the trustee from selling the lands under the provisions of the deed.

Tried before Hon. James E. Cobb. This was a statutory real action in the nature of ejectment, brought by William P. Vandiveer against Henry G. Stickney and Mary E. Stickney; was commenced on 17th May, 1880; and, as to that portion of the land actually in controversy, — to which a disclaimer filed by the defendants did not apply, — the cause was tried on issues joined on the pleas of not guilty and the statute of limitations of ten years, the’trial resulting in a verdict and…

■Appeal from Madison Circuit Court. Tried before lion. Ii. 0. Speake. This was a statutory real action in the nature of ejectment., brought by Julia J. Hancock against Solon and Emmett Kelly : and was commenced on 21st June, 1881.

Heard before Hon. N. S. Graiiam. The bill in this cause was filed on 27th March, 1883, by R. C. Hunt against R. A. Coffey, J. P. Timberlake, P. H. Helton and I. E. Moore; and the case made thereby is substantially as follows: On 14th January, 1882, by written contract, one J. P. Martin rented to the defendant Moore, for the year 1882, a certain farm situate in Jackson county, in this State, for ten bales of cotton of a designated average and classification; and under this…

Tried before Hon. II. C. Speaice. This was a statutory real action in the nature of ejectment, brought by Mrs. E. C. Humes and others against Morris Bernstein; was commenced on 12th July, 1871, and was tried on issues joined on the pleas of not guilty and the statute of limitations, the trial resulting in a verdict and judgment for the plaintiffs.

Heard before Hon. ThoMAS Conns. This was a bill in equity, filed on 11th April, 1883, by fm. H. Morris and J. N. Hall against N. W. Eulgham and G. W. Marshall, to foreclose a chattel mortgage executed by Fulg-ham on 10th January, 1882, to W. K. Rosser and S. B. Eth-ridge, to secure an indebtedness of $2500, payable in installments, evidenced by promissory notes.

Appk.vl from City Court of Montgomery. Tried before Hon. T. M. AiiringtoN. Held: at which the society refused to receive the relator’s dues, which were then tendered; and, having been- officially informed that the Board of Censors refused to recognize Dr. Blue as a member of the board in the relator’s stead, the society passed an ordinance or resolution, directing the board to hold a meeting at a stated time and…

Tried before Hon. JohN Moose. This was an action brought by Mrs. Ann M. Jeffries, wife of Walter B. Jeffries, against D. J. Castleman, to recover a stated amount alleged to have been due by account for money had and received, on 18th November, 1872, by Jeffries & Castleman, a partnership composed of A. S. Jeffries and the defendant, which belonged to the corpus of the plaintiff’s statutory separate estate; and was commenced on 8th February, 1875.

Tried before Hon. S. Ií. Spiíott. This was a statutory real action in the nature of ejectment, brought by John S. Storrs and three others against Herman Fox, and was commenced on 3rd September, 1881. The cause was tried on issue joined on the plea of not guilty, the trial resulting in a verdict and judgment in favor of the plaintiffs for “ four-fifths” of the premises sued for.

Tried before Hon. N. H. BkowNIc. Tn the matter of the final settlement of the accounts of Prank S. Moody, as the administrator de bonis non, with the will annexed of Edward Sims, who departed this life in 1840, leaving a widow and several children. The testator devised lands, with other property, to the widow for life, with remainder to his children, one of whom is Mrs. Mary J. ITemphill, who intermarried with P. P. Hemphill in 1846.

Tried before ITon. T. M. AkkiNGTON. This was an action brought in July, 1882, by Calvin L. Sayre against the Singer Manufacturing company, a body corporate, to recover damages for the alleged breach of a covenant contained in the lease of a certain store-house in the city of Montgomery, belonging to the plaintiff, and by him rented to the defendant.

Heard before Hon. N. S. Graham. The case made by the record is stated in the opinion. (1) The jurisdiction of the City Court of Selma, and the powers and authority of the judge thereof, in the matter of issuing remedial writs, are limited to the county of Dallas. This point discussed, and the following citations made and commented on; Con. of 1875, Art. vi, §§ 2, 6, 13; Code, 1876, § 3867; 1 Erick. Dig. p. 675, § 512; Parnph. Acts, 1875-6, p. 386.

Tried before Hon. H. C. SpeaKE. This suit was brought by Freeman & Bynum against Barton B. Smith; was founded on a bond executed by the defendant to one Finney, and by the latter transferred to the plaintiffs; and was commenced on 24th January, 1880. The cause was tried on issue joined on the pleas of the statute of frauds and want of consideration, among others, the trial resulting in a verdict and judgment for the plaintiffs.

<p>Appeal from the City Court of Montgomery.</p> <p>Tried before Hon. T. M. AeriNGtoN.</p> <p>The facts are sufficiently stated in the opinion.</p>

Heard before Hon. Thomas Cobbs. The bill in this cause was filed on 2d May, 1883, by Eannie Falk, a married woman, the wife of Jacob ~W. Falk, against Joseph Hecht and her said husband, to have vacated and set aside a mortgage executed by her alone (her husband not joining in its execution), on 9th October, 1877, purporting to convey to the said Hecht a tract of land in Lawrence county, her statutory separate estate, to secure a liability of her husband; and to enjoin a sale…

Tried before lion. Ií. D. ClaytoN. This was a statutory real action in the nature of ejectment, by Bird and James Fitzpatrick against D. C. Turnipseed, to recover a tract of land situate in the county of Bullock, in this State; and was commenced on 18th March, 1882.

Heard before ITon. Thomas Cobbs. The bill in this cause was filed on 18th March, 1882, by Mary E. King, a married woman, the wife of E. PI.

<p> Statutory Action for Recovery of Chattels in Specie. </p> <p>1. Common law in Mississippi; presumption as to. — In the absence of proof to the contrary, this court will presume that the common law prevails in'the State of Mississippi.</p> <p>2. Conveyance by husband to wife; effect of at common law. — At common law, tiie husband could not convoy to his wife a legal title to any property. Such a conveyance, if executed and free from fraud, would, however, be upheld and protected in equity.</p> <p>3. Same; when equitahlenot changed into legal title. — Bringing personal property to which a married woman has only an equitable title, from Mississippi, where she acquired such title, into this State, does not change the status of the title.</p> <p>4. Same. — The fact that one species of personal property to which a married woman had an equitable title, is changed into another, does not convert the equitable into a legal title.</p> <p>5. Detinue; title to support. — An equitable title will not support an action of detinue, or the statutory action for the recovery of chattels in specie.</p>

Appeal, from Mobile Circuit Court. Tried before Hon. ¥h. E. Clarke. This was an action by Matthew Matson against R. L. Maupin & Co., in which tlie plaintiff sought to recover damages impersonal injuries sustained by him in being run over and knocked down by a steer belonging to the defendants, while chased or driven through the streets of the Port of Mobile by defendants’ servants.

Appkal from Etowah Chancery Court. Heard before Hon. N. S. Graham. The hill in this cause was filed on 2d September, 1879, and, as originally exhibited, it was a bill by O. W. Ward against W. P. Prickett, Rebecca Maddox, as the executrix of the last will and testament of J. W. Maddox, deceased, and C. P. Maddox and others, the heirs and devisees of said decedent, seeking to enforce a vendor’s lien on land for an unpaid balance of purchase-money.

Tried before Hon. Joi-iN Moore. This was a motion under the statute by David II. Trott for rents of an undivided half interest in a designated lot of land in the town of Livingston, which he had, on 16th October, 1877, recovered in an action of ejectment brought by him against David L. Kirkland ; and was filed on 2nd December, 1882. The defendant filed the following pleas: 1. “The general issue.” 2. The statute of limitations of one year. 3.

Tried before Hon. H. C. Speake. The facts are sufficiently stated in-the opinion. (1) The request required by the statute is not unlike the common law notice to quit by a landlord, which was sufficient if signed by one only, though several were interested in the premises jointly. — Bou. Law Die., title, Notice to Quit. The notice by Scott was within the spirit and letter of the statute.

Heard before Hon. N. S. Graiiam. The bill in this cause was filed on 5th December, 1878, by A. J. Callan and P. A. Callan against Fleming McDaniel, to restrain the defendant, who was in the possession of certain lands, as the lessee of one Milly Smith, from the commission of waste, and from a violation of the covenants of the lease, which was executed on 9th April, 1878, and is made an exhibit to the bill.

Tried before lion. Joint Moore. On the 4th April, 1881, Bamberger, Bloom & Co., Wood-ruff & North and Kahn, Wolf & Sons sued out attachments against A. S. Jeffries, which were levied by James W. Locke, the sheriff of Hale county, oh a stock of goods belonging to Jeffries.

Tried before Hon. J. W. Moore. This was an application by Charles Drennen, as the admiutrator of the estate of James Pice, deceased, for the sale of designated lands, of which his intestate died seized and possessed, for division, and on the ground that the same could not be equitably divided among the heirs without a sale.

Tried before Hon. James E. Cobb. This was an attachment commenced by A. H. Drakford and Campbell & Wright against Lorenzo Turk, to enforce an alleged landlord’s lien on crops grown on rented lands for the rent. On motion of the defendant, the court granted a rule upon the plaintiffs to show cause against the dissolution of the writ and levy.

Tried before Hon. S. II. Speott. This was an action by Simeon Fulghum against Thomas ~W. Roberts, and was commenced on 27th January, 1881.

Tried before Hon. James E. Cobb. This was an action of assumpsit by A. K. Shepherd against C. C. Huckabee, the plaintiff declaring on an open account, an account stated, for money paid, and for work and labor done; the amount sued for being alleged to have become due on 15th October, 1880. The cause was tried on the plea of the general issue, the trial resulting in a verdict and judgment for plaintiff.

<p> Bill in Equity for Specific Performance of Contract for Purchase of Lands. </p> <p>1. Contract; when to he performed within a reasonable time.- — When a ■contract does not specify a particular time, or appoint the happening of a particular event for the performance, the presumption is, that the parties intended performance within a reasonable time; and what is a reasonable time, depends materially upon the nature of the duty to be performed, the relation of the parties, and the peculiar circumstances of the particular case.</p> <p>2. Same; reasonable time for performance ; when a question of law, and when of fact. — What is a reasonable time for performance, is sometimes a question of fact, and sometimes a question of law. When it depends upon facts extrinsic to the contract, which are matters of dispute, it is a question of fact; but when it depends upon the construction of a contract in writing, or upon undisputed extrinsic facts, it is matter of law.</p> <p>3. Contract for sale of lands ; what a reasonable time for performance. Under a contract for the sale of lands, by which the vendor covenanted to convey so soon as he could ascertain the numbers, in the absence of all evidence of intervening impediments, the court inclines to the opinion that six months would be ample time for performance, but adds that, for the purposes of the present case, the court may take two years as á reasonable time, the period allowed to the vendor to obtain title in Gar-nett v. Yoe, 17 Ala. 74.</p> <p>4. Same; when bill for specific performance barred. — When the vendee under executory contract for the sale of lands is not, and has not been within ten years, in possession, and the possession has not been in recognition of his right, the statute barring an action at law to recover damages for a breach of the covenant to convey, upon the expiration of ten years from the breach, applies to a suit in equity by the vendee for a specific performance.</p>

Heard before Hon. Ti-iomas. Cobbs. The bill in this cause was filed by P. F. Garrett, as the administrator, with the will annexed, of Eliza A. F. Lane, deceased, against Edwin J., John M., William B., (ieorge R., and Thomas A. Russell, for the purpose stated in the opinion. The defendants interposed demurrers to the bill, which were overruled by the chancery court. The case made by the bill, and the grounds of the demurrers are sufficiently indicated in the opinion.

Tried before Hon. H. D. Clayton. Kennon & Brother, a partnership, on 29th December, 1882, sued out an attachment against Oscar C. Dibble, which was levied on two mares, a Jersey bull, a wagon and some corn and fodder, as the property of the defendant in attachment. This property was claimed by Mrs. Lena L. Dibble, the wife of Oscar Ó. Dibble, and, on her making the statutory affidavit and bond, it was delivered to her by the sheriff.

Tried before lion. IT. 0. Speaice. This was an action of detinue, brought by Frank B. Gurley and Emma H. Stewart against Larkin A. Wortham and others ; and it was commenced on 26th Mays 1874. The defendants pleaded, “ in short by consent, the general issue, with leave to give in ev-idenee any matter which, if specially pleaded, would be a good plea in bar.” The cause was tried in February, 1882, the trial resulting in a verdict and judgment for the plaintiffs.

Heard before lion. Joint A. Postee. This was a bill in equity by J. M. Robinson & Co., a mercantile partnership, carrying on business in Louisville, Kentucky, simple contract creditors of S. J. Seals, against the said Seals, R. C. Seals, his wife, and W. A. Weldon, seeking to have vacated and set aside, as fraudulent and void, a deed executed by S. J Seals to his wife, bearing date 17th June, 1881, and conveying to her several lots of land, situate in the city of Troy, in…

<p>Appeal from Greene Probate Court.</p> <p>Tried before Hon. W. C. Oliver.</p> <p>The facts are sufficiently stated in the opinion.</p>

Tried before lion. H. D. Clayton. This was a motion by the plaintiffs in a statutory real action in the nature of ejectment, appellees in this court, to amend the record nmic pro tuno by entering judgment in their favor. As recited in the bill of exceptions, on the hearing of the motion it was shown that “there was on file in the said cause a paper-writing as follows : ‘We, the jury, find verdict for the plaintiff.

Tried before ILon. Wm. E. Clarke. This was a statutory real action in the nature of ejectment, by Mrs. Mary T. Glover, a married woman, the wife of Pearson J. Glover, against 'John II. Snyder ; and was commenced on 3rd October, 1882. The trial resulted in a verdict and judgment for the plaintiff, from which the defendant prosecuted this appeal.

Tried before Hon. James E. Cobb. Butler, Pitkin & Co., on 8th January, 1883, sued out an attachment against J. H. Murphy & Co., which was .levied on designated articles of merchandise. This property was claimed by W. N. Murphy, and, on his making the statutory affidavit and bond, it was delivered to him by the sheriff. The cause was tried on an issue made up under the statute, the trial resulting in a verdict and judgment in favor of the plaintiffs in attachment.

<p>Api>eal from Chilton Chancery Court.</p> <p>Heard before Hon. N. S. Graham.</p> <p>The facts are sufficiently stated in the opinion.</p>

Appeal front Coosa Chancery Court. Heard before Hon. N. S. GbauaM. In this case William L. Hawes seeks, by bill in equity against L. J. Brown, to enjoin a sale of land under a power contained in a mortgage executed by the complainant to the defendant, and to set off against the mortgage debt a judgment obtained against the defendant by one Wagner, and an account due by defendant to one Gamble, both of which are averred to have been transferred to the complainant.

Heard before Hon. N. S. Graham. The bill in this canse was filed by Kiser & Co., creditors of George W. Gamble, against said Gamble and his wife, for tlie purpose of vacating and setting aside a deed to lands, executed by him to lier. On the hearing, liad on pleadings and proof, the chancellor was of the opinion that the complainants were not entitled to relief; and he caused a decree to be entered, dismissing their bill. That decree is here assigned as error.

Tried before Hon. T. M. AbbiNGTON. This was an action brought by R. II. Chaffe Bros. & Co. againat Alex. Mohr, and was commenced by an original attachment, which was sued out of, and was issued by the clerk of the City Court of Montgomery, on the 11th December, 1883. From the recitals in the bond and the mandate of the writ, it is made to appear that the attachment was returnable to the Circuit Court of Montgomery county.

Tried before Hon. JohN Mooee. This was an action of trover, brought by Rebecca Hearst against Marcus Meyer, W. J. Rountree and others, to recover damages for the alleged conversion of certain seed-cotton, cattle, a mule and other personal property; and was commenced on 5th July, 1883. The defendants’ pleas are nobdis-closed by the record. There was a judgment in the court below in favor of the plaintiff.

Heard before Hon. Thomas Cobbs. This was a bill in equity exhibited by Gardner & Gates against P. P. Moore and L. H. Moore, his wife, for the purpose of reforming a mortgage executed by the defendants on 2nd June, 1881, and purporting to convey a designated tract of land in Jefferson county, belonging to P. P. Moore, and on which he resided at the time of the execution of the mortgage, and also at the time of the filing of the bill.

Heard before Hon. N. S. Geax-iaM. This was a bill in equity, exhibited by John K. Barton and Clara J. Barton against A. A. Barton, the husband of the said Clara J. Barton, and A. P. Lockard, seeking • the reformation of a conveyance of land executed by A. A. Barton to John K. Barton, as trustee for Clara J. Barton, so as to correct an alleged misdescription in the land intended to have been conveyed. The facts disclosed by the record are sufficiently stated in the opinion.

Api'kal from Greene Circuit Court. Tried before Hon. S. II. Sprott. This was an action of trespass, brought by Louis G. Dauiel against John Alley, to recover damages for the alleged wrongful taking by the defendant of certain goods and chattels, the property of the plaintiff.

Ai3plioatioN to this court for writ of Habeas Corjyus, the same having been refused by lion. Tiios. L. FeazuR, Judge of Probate of Lee county. The facts are stated in the opinion.

Tried before Hon. LeRoy F. Box. This cause was before this court at a former term-, and is reported. See 73 Ala. 175. It was aii action of 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. LeBoy F. Box. Jason Scott commenced this action on 12th January, 1883, against Abijah E. Fields, to recover the statutory penalty of two hundred dollars for the alleged failure of the defendant to enter of record satisfaction of a chattel mortgage executed by the plaintiff to the defendant on the 14th February, 1881. The cause was tried on the plea of the general issue, the trial resulting in a nonsuit by the plaintiff, with a bill of exceptions.

Tried before Hon. JoN. FIaealsoN. On the 2d December, 1882, M. Meyer & Co. sued out an attachment against George Sulzbacher, returnable to the City Court of Selma, which was, on the same day, levied on a stock of goods, wares and merchandise in a store-house in the city of Selma, as the property of the defendant in attachment.

<p> Fjectmeni. </p> <p>1. Homestead exemption; by what law governed. — As against a debt contracted in February, 1873, the extent and value oí a homestead exemption must be determined by the Constitution of 1868.</p> <p>2. Same ; conveyance of. — Where the area of the homestead is within the limits prescribed by láw, a conveyance of it without the voluntary signature and assent of the wife is void; but where the conveyance is of a larger tract, including the homestead, which has not been selected and set apart, the conveyance is valid as to the excess over and above the quantity to which the owner is entitled by way of exemption.</p> <p>3. Same. — In such case, the legal title to the whole passes to the grantee, with the reserved power in the grantor to withdraw the exempted portion from the operation of the conveyance, by some proper act of selection, by which it is separated from the other.</p> <p>4. Same; when claimant not injured by verdict. — Where, in ejectment for one hundred and sixty acres of land, lying in two sections, eighty in each, and both contiguous, the plaintiff claims under a mortgage executed by the defendant, a married man, in February, 1873, without the signature and assent of his wife, to secure a debt then contracted, and the defense is, that, the whole tract being exempt to the defendant as a homestead, the mortgage is void, and the defendant refuses to selecta smaller quantity as his homestead exemption, he can not complain of the verdict of the jury allowing him, as exempt, the eighty acres on which are his dwelling and appurtenances, the question having been fairly submitted to the jury as to what particular eighty acres were occupied by him as a homestead.</p>

<p> Bill in Equity for Injunction against Telegraph Corporation to restrain Continuance of Trespass to Land. </p> <p>1. Trespass to land; when court of equity will not enjoin. — While a court of equity lias jurisdiction to restrain the commission or the continuance of trespasses to lands, it will not intervene when the title is purely legal, and the property is not of peculiar value, unless the remedy at law is inadequate, or there is a necessity for intervention to prevent irreparable injury.</p> <p>2. Injunction against corporation exercising power of eminent domain without making compensation; when granted. — The general rule is, that if a corporation, having the right to take lands in the exercise of the power of eminent domain, enters upon them without making just compensation to the owner, a court of equity will intervene for the protection of the owner, until such compensation is made; but the application must be seasonably made, the right to relief being lost by laches in seeking the protection of the court.</p> <p>3. Same; when right to relief lost by laches. — Where lands on which a telegraph corporation had entered and erected its poles, without having first made just compensation to the owner, were sold, and the purchaser allowed more than two years to elapse after he acquired title before he made any complaint of the wrongful act, the laches of himself and of his predecessor in title exclude him from the aid of a court of equity by injunction.</p>

Tried before lion. P. Williams, jb. In the matter of tlie final settlement of the administration of E. A. Stontz upon the estate of William Rouse, deceased. The facts are sufficiently indicated in the opinion.

Tried before Hon. Jas. W. Tatloe. In the matter of the final settlement of the administration of John W. Bush upon the estate of W. K. Paulling, deceased.

Tried before Hon. James E. Cobb. ITurst, Murphy & Co., the appellees, having, at the spring term, 1883, of said court, recovered a judgment against the appellant, J. IT. Murphy, caused an execution issuing thereon to be levied on a designated lot in the town of LaEayette. After the levy the appellant lodged with the sheriff a claim to the lot as exempt to him as a homestead, in pursuance of section 2834 of the Code of 18T6.

<p>Action on Foreign Bill of Exchange, by Indorsee against Drawer and Payee.</p> <p>1. Recoupment of damages; statutory provisions. — The act approved January 25th, 1879, entitled “An act to provide the mode of procedure in cases in which the claim of recoupment of damages is interposed ” (Pamph. Acts 1878-9, p. 154), does not add to or enlarge the class or number of claims or demands which may he the subject of recoupment, but only authorizes a judgment for the defendant for any excess of damages over and above the plaintiff’s claim, as under the plea of set-off.</p> <p>2. Same ; what demands may be recouped. — In an action ex contractu, the defendant can not claim a recoupment of damages on account of defamatory words, written or spoken, published of him by the plaintiff, though they may relate to the contract sued on, its subject-matter, or breach.</p> <p>3. Protest of bill of exchange ; contents and sufficiency of notary’s certificate. — A statement in the notary’s certificate of protest, of the names of the parties to whom notice of protest was sent by him, is made by statute competent evidence of the facts stated (Code, § 1336); but such statement is not an essential part of the protest, and the fact of notice may be proved otherwise.</p> <p>4. Secondary evidence of writings beyond jurisdiction of court. — When original letters or documents are in a foreign country, beyond the jurisdiction of the court, secondary evidence of their contents is admissible, although the witness has the original in his possession.</p> <p>5. Proof of agency; acts and declarations of agent. — The general rule is, that the fact of agency must be proved, before the acts, declarations or admissions of the agent can be received as evidence against the principal ; but, where the fact, of the agency rests in parol, or is to be inferred from the conduct of the principal, if there is any evidence tending to show the agency, the acts or declarations of the agent are admissible as evidence, and the jury must determine the question of agency vel non.</p> <p>6. Relevancy of evidence as to price and quality of cotton shipped to Liverpool, in action between parlies to bill of exchange drawn against shipment, and protested for non-acceptance.■ — In an action by the indorsee and purchaser, against the drawer and payee of a foreign bill of exchange, which was drawn against a consignment of cotton shipped from Mobile to Liverpool, and was protested for non-acceptance, evidence as to the quality of the cotton is irrelevant and inadmissible, in the absence of evidence showing that it was sold by plaintiffs in Liverpool as of a quality inferior to that at which it was purchased in Mobile; alnd if the plaintiffs can be held liable, in such action, for any loss resulting to defendant from their unreasonable delay in selling the cotton in Liverpool after the protest of the bill for non-acceptance, some evidence of such delay and consequent loss must be adduced, before evidence as to the market price of cotton in Liverpool when thé cotton arrived there is relevant and admissible.</p> <p>7. Notice of dishonor of hill. — Notice of the dishonor of a bill of exchange, foreign or domestic, though generally given in writing, may be given verbally.</p> <p>8. Abstract charge. — A charge requested, which is based, in whole or in part, on a state of facts, of which there does not appear to have been any evidence whatever, is abstract, and is properly refused for that reason.</p>

Tried before Hon. T. M. Arrington. The facts are sufficiently stated in the opinion. contended, inter alia, and argued at length, in reply to argument of counsel for the appellee, that the statute under consideration was constitutional, citing, arguendo, the following authorities: Code of 1852, §§ 1938-41; Acts 1871-2, p. 83 ; lb. p. 82; Dorman v. State, 34 Ala. 216; Cooley on Con.

Tried before Hon. H. C. Speaice. This was a suit by Theo. Westmoreland against R. B. Porter, to recover damages for tbe alleged breach of an agreement in writing executed by the defendant on 29th December, 1880, by which he “acknowledged” himself “security” for the payment to the plaintiff, within thirty days, of $650, as a balance due from one J. M. McGehee for the rent of plaintiff’s plantation. in Lawrence county, for tbe year 1880; the complaint alleging the…

<p> Bill in Equity to enforce Vendor's Lien on Land. </p> <p>1. Amendment to bill in equity; relation to commencement of suit. The rule is general, in a court of equity, that ail original and amended bill is to be regarded simply as an entirety, constituting but one record, the amended bill relating back to the filing of the original bill; but this doctrine of relation, being a fiction of law intended to promote the administration of justice, is never permitted to operate so as to prejudice the right, or to work injustice.</p> <p>2. Same. — If, in the exercise of the right of amendment, new matters or claims are asserted, not within the lis pendens, if the amendment is not merely and strictly remedial, curing a defective or imperfect statement of the cause of action in the original bill, or merely -modifying or varying its allegations, the matter or claim introduced by the amendment will not be referred to the filing of the original bill, to the prejudice or injury of the parties against whom the amendment is made; but if the amended bill asserts the same title, seeks the same relief, corrects only an erroneous statement of the cause of action in the original bill, or supplies a defective statement, not introducing any new matter or claim, it relates back to the filing of the original bill.</p> <p>3. Same. — A demurrer to an original bill, filed to enforce a vendor’s lien on land, having been sustained on the ground, that the contract of sale affirmatively appeared to be within the statute of frauds (it resting, according to the averments, in parol merely, and possession under it only being averred), an amendment seeking to avoid the statute of frauds l>y the additional averment of a contemporaneous part payment of the purchase-money, being strictly remedial of an imperfect statementinthe original bill of facts attending the making of the contract, relates back to the filing of the original bill, although the effect of such relation is, to take the complainant’s demand without the bar arising from the lapse of time, if computed from the filing of the amendment.</p>

Heard before Hon. Joi-iN A. Fostek. This was a bill in equity by Loeb & Bro. and Griel Bros. & Co. against A. H. Drakeford and others, as the executors of the last will and testament of Thomas B. Dryer, deceased, and Lehman, Durr & Co. and others; and was filed on 1st August, 1882. The purpose of the bill, and the facts necessary to an understanding of the points decided, are sufficiently stated in the opinion.

Tried before Hon. LI. C. Speake. This suit was brought by John K. Bayliss against the East Tennessee, Virginia & Georgia Bailroad Company, a corporation operating a railroad in this State, to recover damages alleged to have been suffered by the plaintiff, by reason of the negligent killing of a horse belonging to him by defendant’s locomotive.

Tried before Hon. Wm. E. ClaeKE. As originally brought, this was an action of trover by the appellant against the appellee for the alleged conversion of 252 bundles of cotton ties. After the remandment of the cause on former appeal (Mobile Savings JBtwik v. Fry, 69 Ala. 348), a count in case was added, the nature of which is sufficiently indicated in the opinion.

Heard before lion. N. S. GbaiiaM. This was a bill in equity, exhibited, on 17th May, 1882, by Andy Mitchell against Marcus, Joseph and Ferdinand Meyer, a mercantile partnership trading under the firm name of Meyer Bros., and against Carlos D. Rainey and R. B. Lovett, seeking the specific performance of a contract of purchase of land made by the complainant with the defendants Rainey and Lovett, who afterwards sold and conveyed the lands to their co-defendants, Meyer Bros. As…

Alpeal from Cleburne Circuit Court. Tried before Hon. LeRot E. Box. This was a statutory real action in the nature of ejectment, brought by William Dothard against L. P. Denson and others, to recover designated portions of the west half of section six, township seventeen, range eleven, east; and was commenced on 17th July, 1877.

Tried before Hon. Joi-iN P. Hubbard. As originally brought, this was an action by Margaret, Mack and Alexander McLeod against Hugh McLeod, to recover damages for an alleged malicious prosecution of the plaintiffs by the defendant for the offense of trespass after warning. The cause was before this court at a former term, when it was remanded on a reversal of the judgment of the circuit court. See McLeod v. McLeod, 73 Ala- 42.

Clair Circuit Court. Tried before Joim Henderson, Esquire, Special Judge. This was an action on a promissory note, brought by James R. Yandegrift, as the administrator of the estate of John J. Abbott, deceased, against W. R. Abbott, J. W. Casper and J. B. Robinson, the makers of the note.

<p> Application for A uthority to erect Mill-1)am. </p> <p>1. Common law writ of certiorari; its functions and office. — The functions of the common law writ of certiorari extend alike to questions touching the jurisdiction of the subordinate tribunal, and the regularity of its proceedings; and by it errors of law, apparent on the face of the record, may be corrected, but, in the absence of statutory authority, conclusions of fact can not be reviewed.</p> <p>2. Same ; tried on. the record. — In such case, the trial is not de novo, but on the record; and the only matter to be determined is the quashing or the affirmation of the proceedings brought up for review.</p> <p>3. Erection of mill-dams; jurisdiction of probate court. — The jurisdiction of the probate court touching the erection of dams for mills, etc., being special and limited, the record must affirmatively show a full and substantial compliance with all the requirements of the statute.</p> <p>4. Same; inquest of jury. — In such case, the inquest of the jury is sufficient if it is clearly responsive to all the matters which the statute requires the jury to investigate; but any finding of the jury which falls short of this requirement, is defective, and will authorize, on motion of any party to the record, the entire proceedings to be vacated or quashed.</p> <p>5. Same; oath to jury. — Where the recital of the inquest is, that the jury, before proceeding to their investigation, were “first duly sworn and charged by said sheriff as required by law,” and the return of the sheriff shows that the jury were sworn and charged by him in the precise language of the statute, this sufficiently shows that the jury were sworn as required by the statute.</p> <p>6. Same; sufficiency of inquest. — Where the jury, after being charged by the sheriff according to the exact requirements of the statute, find that “ no land, above or below the proposed site of the dam, will be damaged more than by the natural overflow of the creek on which the dam is to be built,” this is sufficient to negative the idea that either the residences of the owners of such lands, or the outhouses, enclosures, gardens or orchards thereon would be injured by the overflow resulting from the erection of the dam.</p>

Tried before lion. H. C. Speaice. This was a motion by the plaintiff in the court below, appellant here, to re-tax the costs against the defendants, so as to include the fees of one Strode, one of the plaintiff’s witnesses on the trial of said cause, to whom certificates had been issued, but whose fees the clerk- had failed to tax. The motion was overruled, and the plaintiff excepted ; and that ruling is here assigned as error.

Heard before Hon. N. S. GeaiiaM. The case made by the bill in this canse, and the relief sought thereby are sufficiently stated in the opinion. The defendants demurred to the bill, assigning the following, among other grounds of demurrer: (1) That the complainant had a full and adequate remedy at law. (2) That it is not averred that Rachel I). Whetstone has ever been declared to be a person of unsound mind, and incapable of attending to her own affairs.

Heard before Hon. JNO. HaRAlsoN. Bill in equity by Robert C. Carlisle and others, heirs at law of Robert Carlisle, deceased, against Moody H. May, Alfred Gardner, as the administrator of the estate of Andrew H. Gardner, deceased, and the widow and children of said decedent, and against Mary Ford; and the case made thereby is briefly as follows: In 1868, Robert Carlisle departed this life, intestate, in Dallas county, in this State, and, after an administration in chief,…

Tried before Hon. S. IT. Spbott. This was an action under the statute for the recovery of designated articles of personal property in specie, brought by the appellees against the appellants, and was commenced on 22nd November, 1882.

Tried before Hon. H. D. ClaytoN. The facts are stated in the opinion. (1) The will created personal trusts in the executor and executrix, and the appellee, who is administrator de bonis non, cum testamento annexo, having no power to execute the trusts, has no right to recover the land sued for.- — Perkins v. Lewis, 41 Ala. 649; Anderson, AdrPr, v. McGowan, 42 Ala. 280; s. c. 45 Ala. 462; Pinney v. Werborn, 72 Ala. 58; Morgan n. Casey, 73 Ala. 222.

Heard before Hon. JNO. A. Eostek. This was a bill in equity by W. P. Rouse and F. 0. Smith against Martin & Flowers; was filed on 21st May, 1S84; and the case made thereby is sufficiently stated in the opinion. On the filing of the bill, a temporary injunction was granted by Hon. John F. Hubbard, Judge of the Second Judicial Oircuit, which the defendants moved to dissolve on the denials in the answer, and because the bill was without equity.

Alpeal from Etowah Circuit Court. Tried before Hon. H. D. ClaytoN. The facts are stated in the opinion. (1) The road-bed, track, etc., of a railroad company is real estate, and.for its recovery an action of ejectment will He. This point discussed at length, with citation of following authorities : Tyler on Eject. 37, 39; 3 Wait’s Ac. & Def. 4, §§■ 1, 2 et seq.j 1 Chitty’s Plead. (16 Am. Ed.) m. pp. 275-6 ; Rowan v. Kelsey, 18 Barb. 484; Nichols v. Lewis, 15 Conn. 137; 1 Wash.

Tried before Hon. S. H. Speott. B. F. Avery & Sons, a corporation, having commenced suit by summons and complaint against E. & T. E. Loeldiard, on the same day sued out a writ of garnishment against W. T. Abrahams, as debtor to the defendants. The garnishee was discharged on his answer, the material averments of which sufficiently appear in the opinion. The judgment of the court discharging the garnishee is here assigned as error.

<p> Bill in Equity by the Wife to enforce Trust in Lands pur-. chased by the Husband with Moneys belonging to her Statutory Separate Estate. </p> <p>1. Equity of wife -in lands purchased by the husband with her money; when inferior to execution lien of judgment creditor. — Where the husband invests money belonging to his wife, as her statutory separate estate, in lands, and takes the title in his own name, the equity of the wife to charge the lands with the moneys so invested is inferior and subordinate to the lien of a judgment creditor of the husband under an execution-issued on the judgment, when, at the time the lien was acquired, the creditor had no notice, actual or constructive, of the wife’s equity.</p> <p>2. Lis pendens as constructive notice. — It is settled in this State, that to constitute lis pendens constructive notice of claim or asserted ownership, not only must the suit be instituted, but process must be issued and served.</p> <p>3. Same. — Hence, the mere filing of a bill in equity by a wife against her husband alone, seeking to charge lands purchased by, and conveyed to him, with a trust for moneys belonging to her as part of her statutory separate estate, which he had invested in the lands, does not operate as constructive notice of the wife’s equity to a judgment creditor of the ■ husband, who had acquired a lien on the lands by issue of an execution prior to service on the husband.</p>

The name of the presiding judge not disclosed by the record.

ApplioatioNS to this court for writ of mandamus to Hon. John Moobb, Judge of the First Judicial Circuit, presiding at Perry Circuit Court. The facts are sufficiently stated in the opinion.

Heard before Hon. Joi-iN A. Fosteb. This was a bill in equity by Thomas H. Price, as surviving partner of Gibbons & Price, a late partnership engaged in the practice of the law, and D. C. Anderson and James Bond, partners practicing law under the firm name of Anderson & Bond, against James A. Carney, Elijah S. Taylor, John B. Bryars and Wiley Bryars; and was filed on 28th December, 1881.

Heard before Hon. JoN. HaRalsoN. The facts are stated in the opinion. 1. Held: that any alleged confirmation or ratification of such.a contract or settlement, to have that effect, must be with the same “ full knowledge of all the facts,” and with the intent that such act should confirm it.” — Thompson v. Lee, , 31 Ala. 297 ; Johnson v. Johnson, 5 Ala. 90. The principle upon which this rule is based, is obvious.

Tried before Hon. James E..Cobb. Alonzo Bland, the defendant in the court below, appellant here, was indicted for the murder of Nancy Bland, who, as the evidence showed, was his mother; and, at a subsequent term, be was tried and convicted of murder in the first degree, and sentenced to imprisonment in the penitentiary for life. On the trial it was shown that on 31st December, 1882, the deceased was killed by a pistol shot.

<p> Settlement of Insolvent lístate in Probate Court. </p> <p>1. Homestead to widow and minor children; by whom return made under § 2841, of Code. — The duty of making the report or return of homestead or other exemption claimed by the widow or guardian of minor children, etc., as provided by section 2841 of the Code of 1876, when the claim or selection has been made without the intervention of commissioners, rests on the personal representative, although the statute is silent as to the person by whom the report or return should be made.</p> <p>2. Same ; when selection necessary. — Although there is no express direction or provision in the statute for selecting the homestead by or for the widow or minor children of a decedent, when the family resided thereon at the time of the decedent’s death, yet, such selection must be made, when the tract consists of more acres, or is of greater value than can be claimed as exempt.</p> <p>3. Same; when selection unnecessary. — But when, as in this case, the whole tract does not exceed the quantity and value the law exempts in favor of the widow or minor children, no selection is necessary ; but all that is required in such case is, that the claim should be assorted or made known before the personal representative acquires dominion over it for the purposes of administration, or some creditor procures its sale for the payment of debts.</p> <p>4. Same ; should be reported under t¡ 2841 of the Code, though not laid off by commissioners. — Under section 2841 of the Code of 1876, the homestead or other exemption in favor of the widow or minor children should be reported to the probate court, within sixty days after it is claimed, although commissioners were not appointed to lay it off. (Farl/y v. Jiior-don, 72 Ala. 128, on this point, qualified.)</p> <p>5. Same; negligence of personal representative, to report; liability for. The failure of the personal representative to make such report, as required by the statute, fixes on him a prima facie liability for negligence, and casts on him the burden of exculpation; and the measure of his liability, the estate having been declared insolvent, is the injury resulting to the creditors of the estate from such failure.</p> <p>6. Same ; whenpersonalrepresentative not liable for rents of homestead. In such case, the personal representative fully exonerates himself from liability, by showing that the homstead did not exceed, in quantity, eighty "acres, or, in value, one thousand dollars, and thatit had been oo.cu-pied, since the decedent’s death, by the widow under an asserted claim of homestead on behalf of herself and minor child, to which he had assented; and hence, on proof of these facts on final settlement made by him after declaration of insolvency, he is not chargeable with the rent of the homestead.</p>

Appeal-from Tuscaloosa Circuit Court. Tried before Hon. S. IT. Sprott. The facts .are sufficiently stated in the opinion. contended that section 3 of article 8 of the Constitution was not retroactive, but merely disqualified persons convicted of the designated crimes after its adoption.

Tried before Hon. John P. Hubbard. This was an action by E. Y. Culver against the Montgomery •and Eufaula Railway Company, a domestic corporation, operating a railroad in this State,for the recovery of damages “for the failure to deliver certain goods, viz., one trunk, containing ■one heavy set gold bracelets, twenty-four pieces of sterling silver teaspoons, twelve pieces [silver] table spoons,' twelve pieces of dessert spoons, one full set of Rogers table cutlery,…

Tried before lion. ¥m. E. Clarice. This was an action by Charles P. Johnston against the'East Tennessee, Virginia and Georgia Railroad Company, a corporation controlling and operating a railroad in this State, for the recovery of damages for injuries received by j>laintifi’s_cattle, which iiad been delivered to the defendant, at Demopolisj' Alabama, a place on the line of said road, for transportation, as alleged in 'the complaint, to New Orleans, Louisiana, and which are…

Tried before the Hon. Vm. E. Clabios. This action was brought by A. J. Arrington, against Daniel L. Morgan and others; was commenced on the 13th August, 1881, and was founded on a written contract by which plaintiff hired and sub-let to said Morgan (for whom the other defendants were sureties) the county convicts of Sumter county, whom the plaintiff had hired from the commissioners court of said county.