Volume 77 — Alabama Reports

Indictment for Murder. From the Circuit Court of Barbour. Tried before the lion. IT. D. Clayton.

Indictment for Mv/rder. From the Circuit Court of Calhoun. 'I ried before the Hon. Leroy F. Box. The defendant in this case, John A. DeArman, was indicted' for the murder of Seaborn J. Crook, by shooting him >yith a gun, and, on the first trial, was convicted of murder in the second degree ; but the judgment was reversed by this court, and the cause was remanded, as shown by the former report of the case. 71 Ala. 361.

Indictment for Murder. From the Circuit Court of Pike. Tried before the lion. John P. Hubbard. The defendant in this caset, Stephen Jackson, was indicted for the murder of Joseph Bragg, by shooting him with a gun ; was tried on issue joined on the plea of not guilty, convicted of murder in the second degree, and sentenced to the penitentiary for the term of ten years.

.Indictment for Grand Larceny. From the Circuit Court of Tuskaloosa. Tried before the Hon. S. TL Sprott.

Indictment for Perjury. ■ From the Circuit Court of Jefferson. Tried before the ITou. S. H. Sprott. The indictment in this case charged, that the defendant, Tom Boynton, “on his examination as a witness, duly sworn to testify, on the trial of Samuel R. Truss and D. II.

Indictment for Murder. From the Circuit Court of Walker. Tried before the Hon. S. II. Sprott.

Indictment for Burgla/ry. From the Circuit Court of Madison. Tried before the Hon. II. O. Speak®. The indictment in this case charged that the defendant, George Miller, with intent to steal, broke into and entered a corn-crib of John Fanning, a building specially constructed to hold or keep corn, and in which corn, a thing of value, was at the time kept for use.

Prosecution for default in Working Public Poad. From the Circuit Court of Tuskaloosa. Tried before the Hon. S. II. Spjrott.

Indictment for Bigamy. From the Circuit Court of Jefferson. Tried before the Lion. S. IT. Sprott. The indictment in this case contained but a single count, which charged that the defendant, Abner IT.

Indictment for Assault with Intent to M'urder. From the City Court of Mobile. Tried before the lion. O. J. Semmes.

Indiot/ment for Murder. From tlie Circuit Court of Pike. Tried before the lion. John P. Hubbard. Tiie defendant in this case, Nathan Prior, was indicted and tried, jointly with Daniel Lawrence, for the murder of Man Copeland, by shooting him with a pistol; was convicted of manslaughter in the first degree, and sentenced to the penitentiary for the term of two years, Lawrence being acquitted.

indictmentfor Obtamvng Money by False Pretenses. From the Circuit Court of Shelby. Tried before the lion. Leroy F. Box.

Indictment for Forgery. From the Circuit Court of Shelby. Tried before the Hon. Leroy F. Box. ■ The defendant in this case, Thomas Baysinger, was indicted for the forging of a written instrument, which was in these words: “ Mr. Pope, pleas send me $lfO cents By the Bearer, Thome Baysinger, and oblige G. W. McGowe/ ” which was written dimly in pencil, on a small scrap of paper, and the original of which was, by an order of the court below, sent to this court for its…

Prosecution for Malicious Injury to Animals. Appeal from the County Court of Jackson. Tried before the Hon. John B. Tally. The name of the appellant’s counsel, if any appeared in this court, is nowhere shown by the record or docket. cited Campbell v. The State, 23 Ala. 44; Burr. Cir. Ev. 264 ; TlinMe v. Commonwealth, 4 Dana, 518; Bish. Stat. Crimes, 1115-17.

Indictment for Petit La/reeny. From the Circuit Court of Bullock. Tried before the Hon. IT. D. Clayton. The defendant in this case was indicted for petit larceny, in stealing $14 in silver from one Clark ; pleaded not guilty to the indictment, and was tried on issue joined on that plea.

<p>1. Offer to refund. — Under an indictment for obtaining money under false pretenses (Code, § 4370), evidence of the fact that the defendant offered, two or three weeks after the money was obtained, to refund it with interest, is not relevant or competent evidence for the defense.</p>

Indictment against Agent for Embezzlement of Property. From the Circuit Court of Dallas. Tried before the lion. John Moore.

Indictment for Robbery. From the Circuit Court of Jefferson. Tried before the Hon. S. H. Sprott.

Indictment for Murder. From the Circuit Court of Pike.' Tried before the Hon. John P. Hubbard. The defendant in this case, Jack Henderson, was indicted, jointly with Aaron Perdue, for the murder of Dave Mincey, by shooting him with a gun ; pleaded not guilty, was tried on issue joined on that plea, was convicted of manslaughter in the first degree, and sentenced to the penitentiary for the term of three years and six months.

Indictment for Betting at Cards. From the Oircnit Court of Crenshaw. Tried before the lion. John P. ITubbard.

Indictment for Malicious Trespass on Land. From the Criminal Court of Greene. Tried before the Hon. J. P. McQueen, an attorney of the court, selected by the clerk (Code, § 664) on account of the disqualification of the presiding judge.

<p> Indictment for Forgery. </p> <p>From the Circuit Court of Choctaw.</p> <p>Tried before the Hon. Vi. E. Clarke.</p> <p>The indictment in this case charged that the defendant, Wash Bush, “falsely, and with the intent to injure or defraud, did forge an order, purporting to be the act of one W. H. Curtis; ” which order was set out in the indictment, being dated July 30th, 1884, directed to J. E. Westcott, and in these words: “ Pleas let Wash Bush trad in your store to the amount of ” -, “ and charge the same to my account.” The amount expressed in the order was written in figures, which appeared to have been altered, appearing to be $1.00; the figures above the ciphers having been erased, and the figures 90 added after the ciphers. Curtis, by whom the order was written, testified as a witness for the State, that the sum specified in the order, as written, was $1.30, or $1.35; while Westcott, to whom it was presented by the defendant, testified that the defendant said it was intended for $1.90, and that he delivered goods to that amount on the faith of it. The defendant offered to prove that the amount due from Curtis to one Prince Bush, defendant’s brother, for which debt the order was given, was $2.40 ; and he excepted to the exclusion of this evidence.</p> <p>The record and dockets do not show that any counsel appeared in this court for the appellant.</p> <p>cited Kimball v. The State, 50 Maine, 409; Amer. Grim. Law, 150 d.</p>

Prosecution for Enticing Minor from Service of Employer. From the County Court of Macon. Tried before the Hon P. S. Holt.

Indictment for Carrying Concealed Weapons. From the Circuit Court of Jefferson.

Indictment for Retailing Liquor without License. From the Circuit Court of Bullock. Tried before the Hon. H. D. Clayton.

The petitioner in this case, Orlando M. Rhear, being confined in the jail of Colbert county, under an indictment which charged him with the murder of James Sisk, presented his petition for the writ of habeas corpus to Hon. H. O. Sreake, the presiding judge of the circuit, alleging that he was not guilty of the offense, and asking that he be discharged, or admitted to bail, as might seem right and proper on the facts developed at the hearing.

Indictment for Assault and Battery. Erom the Circuit Court of Cullman. Tried before the Hon. Leroy E. Box. No counsel appeared for the appellant in this case, so far as the record and the dockets show.

Indictment for Arson. From the Circuit Court of Barbour. Tried before the Hon. H. D. Clayton. The defendant in this ease was indicted for arson, and pleaded not guilty, but was convicted, and sentenced to the penitentiary for the term of ten years.

Indicbmmb for Murder.. From the Circuit Court of Russell. -Tried before the Hon. IT. D. Clayton. The defendant in this case, Thomas D. Jones, was indicted for the murder of Ivey Doles, and, on his first trial, was convicted of murder in the second degree, and sentenced to the penitentiary for the term of eighteen years ; but the judgment was reversed by this court, at his instance, and the cause remanded. — Tones v. The State, T6 Ala. 8.

Action on Official Bond of Defaulting Tax- Collector. Appeal from the Circuit Court of Clarke. Tried before the Hon. Wi, E. Clarke. This action was brought in the name of the State of Alabama, against R. H. Flinn and others, his sureties on his official bond as tax-collector of said county; and was commenced on the fifth November, 1883.

Action on Judgment, against Successor of Dissolved Municipal Corporation; and Bill in Equity by Statutory Commissionersagainst Creditors… Held: used or possessed by said corporation, may continue to be used with -due regard to the public health, safety and convenience, and with due regard to the terms of the trust upon which any trust property may be held; and all surplus funds received by them from the management or use of said property, after payment of the expenses and…

jBill in Equity by Assignee of Newspaper Establishment, for Accoxmt, Receiver, Redemption, etc.; Gross Appeals. Appeals from the Chancery Court of Mobile. Heard before the Hon. John A. Foster. This case has been before this court on two former appeals, and is reported in 64 Ala. 330-45, and 69 Ala. 476-82.

Statutory Detinue for Goods, by Vendor against Demote Purchaser. Appeal from the Circuit Court of Mobile. Tried before the Hon. Wm. E. Clarke.

Action for Breach of Written Executory Gont/ract. Appeal from the City Court of Montgomery. Tried before the Hon. Thos. M. Arrington.

Statutory Real Action in nature of Ejectment, by Purchaser at Mortgage Sale against Mortgagor. Appeal from the Circuit Court of Wilcox. Tried before the Hon. John Moore. This action was brought by Albert A. Smith, against J. Decatur Caldwell, to recover the possession of a tract of land particularly described in the complaint, with damages for its detention ; and was commenced on the 29th July, 1879.

Aneilla/ry Garnishmentj Judgment Discharging Ga/rnishee. Appeal from the Circuit Court of Mobile. Tried before the Hon. Wm. E. Clarice. The appellant in this case, the National Commercial Bank of Mobile, commenced suit by summons and complaint, on the 5th February, 1884, against Adolph Proskauer; and at the same time sued out an ancillary garnishment, which was served, on the same day, on Tlios.

Bill in Equity to enforce Covenant manning with Land. Appeal from the Chancery Court of Wilcox. Heard before the Hon. N. S. Graham.

Dill in Equity by Creditors, assailing Absolute Conveyance as Fraudulent, because intended only as Mortgage. Appeal from the Chancery Court of Mobile. Heard before the Hon. John A. Foster.

Action by County, on Statutory Bond for protection of Public Bridges against Injury from, Rafts. Appeal from the Circuit Court of Coffee. Tried before the Hon. II. D. Clayton.

Actions on Policies of Insurance against Loss Toy Fire. Appeals from the Circuit Court of Mobile. Tried before the Hon. ¥m. E. Clarice. These three cases, involving the same facts and questions, were argued and submitted together.

Indictment against Tax-Collector for Embezzlement. From the Circuit Court of Hale. Tried before the Hon. John Mooee. The indictment in this case contained six counts, each of which charged the defendant, William G. Britton, as tax-collector of Hale county, with defaults in his official capacity.

Action on Policy of Life-Insurance, hy Trustee of Beneficiaries. Appeal from the Circuit Court of Mobile. Tried before the Hon. ¥m. E. Clarke. This action was brought by T. W. Carner, “ as trustee for Eugene G-. Wiley and Harry L. Wiley, children of Mrs. Sarah E. Monday, deceased ; ” was commenced on the 16th April, 1884, and was founded on a “ paid-up ” policy of insurance for $488, winch the defendant, a domestic corporation, had issued to Mrs. Monday on her own life.

Ancillary Garnishment; Contest of Garnishee’s Answer. Appeals from the Circuit Court of Pike. Tried before the Eton. John P. Hubbard. These two cases, presenting the same facts, and involving the same question, were argued and submitted together.

Ejectment by Bem.ainder-men, against Purchasers from Trustee and Life-Tenants. Appeal from the Circuit Court of Mobile. Tried before the Hon. Wm. E. Clarke.

Statutory Claim Suit, between Vendor and Sub-Purchaser. Appeal from the Circuit Court of Barbour. Tried before the Hon. H. C. Speaks. ■ The appellees in this case, wholesale dealers and manufacturers of flour in the city of Montgomery, instituted a statutory action of detinue on the 14th of October, 1884, against Benjamin J. Chitty, to recover forty-one barrels of floor, which they had sold to one L. Manasses, a retail merchant doing business at Clayton.

Action on Policy of Insurance against Fiore, or for Breach of Parol Agreement to Insure. Appeal from the City Court of Selma. Tried before the Hon. Jon a. Haralson.

Action Toy Water- Works Company, against Municipal Corporation, for Breach of Contract. Appeal from the City Court of Montgomery. Tried before the Hon. Thos. M. Arrington. This action was brought by the Montgomery 'Water Works Company, a private corporation, against the “ City Council of Montgomery,” a municipal corporation; and was commenced on the 19th July, 1884.

Bill in Equity by Creditor to set aside Fraudulent Convey-. anees, Appeal from the Chancery Court of Mobile. Heard before the Hon. John A. Foster.

Bill in Equity by Surviving Partner, against Executors of Deceased, for Injunction in matter of Executory Contract of . Partnership. ' . Appeal from the Chancery Court of Conecuh. Heard before the Hon. John A. Foster.

Bill in Equity for Foreclosure of Mortgage., Appeal from the Chancery Court of Butler. Heard before the Hon. John A. Foster. The bill in this case was filed on 8th October, 1884, by George R. G. Buckhaults, against J. M. Johnson and Sarah Johnson ; and sought to foreclose a mortgage on the tract of land, which the complainant had sold and conveyed to the defendants, taking the mortgage to secure their note or obligation for the agreed price.

Bill in Equity by Creditors to'set aside Fraudulent Conveyance. Appeal from the Chancery Court of Pike. Heard before the Hon. John. A. Foster.

Special 'Action for Damages, •by Mortgagee of Crops,- against 'Purchaser with Notice of Lien. - Ax’peal from the City Court of Selma. Tried before the Hon. Jona. Haralson. This action was brought by Posey Hamilton, against Maas & Brother, late partners in business; and was commenced on the 26th March, 1883.

Btatxvtory Attachment by landlord, for Adva/nces. Appeal from the Circuit Court of Barbour. Tried before the TIon. IT. C. Speake.

Bill in Eguit/y for Cancellation of Deed, as C loud on Title. Appeal from the Chancery Court of Dallas. Heard before the Hon. John A. Foster.

Bill in Equity iy Assignee of Insolvent Bank, asking Instructions in matter of Trust; Gross-Bill iy Creditors claim-i/ng Preference. Held: as collateral security, Alabama bonds, class No. 2, to the amount of $60,000. The chancellor sustained a demurrer to the cross-bill, and dismissed it; and his decree is now assigned as error. (1.) The original parties to the transactions here involved are before the court, and the rights of no third parties are concerned.

. But m Egmtry to enforce Verbal Agreement as Mortgage, or Eguitdble Lien on Personal Property. Appeal from the Chancery Court of Pike. Heai-d before the ITon. N. S. Geaitam. The bill in this case was filed on the 20th February, 1884, by John B. Knox, against Archelaus Wilson and his two sons, Charles and Wm. Ii.

<p>1. Description of land, in agreement to sell and convey ; parol evidence in aid of. — As held in this case on the former appeal (75 Ala. 475), an agreement to sell and' convey a parcel of land, part of a larger tract, described in the written agreement as “sixty acres Comida and cane-bottom, also ten acres hill-side woodland adjoining the Mitchell tract,” is, on its face, void for uncertainty; but parol evidence may be received to aid the uncertain description, and to identify the particular land intended to be sold, which was pointed out at the time, and of which the purchaser was put in possession.</p> <p>2. Same; sufficiency of extraneous evidence identifying land sold. — The particular lands intended to be sold being described in the amended bill with sufficient certainty, and the plat and survey made by the county surveyor, at the instance of the purchaser, corresponding substantially with this description, and its correctnesss not being impeached by any contradictory evidence; this is sufficient to sustain the chancellor’s decree granting a specific performance, although the lands were pointed out to the surveyor by the complainant himself, and the survey was made without notice to the defendants.</p> <p>3. Re-examination of witness ; what is revisable. — -It is irregular to reexamine a witness without an order of court, the granting of which is matter of discretion with the chancellor; and if a deposition is thus taken without authority of an order, it is discretionary with the chancellor whether he will suppress the deposition or not; and the exercise of this discretion, in either case, is not revisable on error or appeal.</p>

in Equity by Creditors of Insolvent Banh, for Removal of Assignee, Appointment of Receiver, and Administration of Trust by Court. Appeal from the Chancery Court of Mobile. Heard before the Hon. John A. Foster.

Heard before the Hon. A. H. Alston. In the matter of the estate of Charles D. Bush, deceased, who died in said county, in the year 1853 ; on the application of Mrs. Salina B. Glover and others, heirs at law of said decedent, distributees of his estate, and legatees under his will, for the revocation of letters of administration de bonis non, as in case of intestacy, granted to John A. Watson on the 19th November, 1884.

Attachment by landlord, for Advances to Tenant. Appeal from the City Court of Montgomery. Tried before the Hon. .Thos. M. Arrington. This action was brought by W. A. Gunter, against John W. DuBose, and was commenced by attachment, sued out on the 30th December, 1882.

The petitioners in this case, Mrs. Eliza A. Jones and Marcus Rosmanick, filed their respective petitions in the Chancery Court of Mobile, in a cause therein pending, wherein Winston Jones, as assignee and trustee for the benefit of the creditors of the Bank of Mobile, was complainant, and the said bank and its creditors were defendants; claiming to be creditors of said bank as depositors, and to have the right to share in the distribution of the assets in that capacity.

<p>1. Parol evidence ; when admissible to vary or aid writing. — As between the parties to a valid written instrument, and their privies, parol evidence can not be received to contradict or vary its terms; but strangers are not estopped from contradicting it, and parol evidence is competent to identify the subject-matter to which it relates.</p> <p>2. Same. — A tract of land being described in the receipt for the purchase-money, which also obligated the vendor to make titles, as “ the Davis Centerfit plantation,” without other identifying words, or words designating its boundaries or number of acres, extrinsic evidence is admissible to show that the vendor did not claim, and was not in possession of a particular portion of the tract, which had been assigned as dower to the widow of the said Davis Centerfit.</p>

Bill in Equity by Purchaser, for Specific Performance Contract for Sale of Land. Appeal from the Chancery Court of Pike. Heard before the Hon. John A. Poster.

Garnishment in Pending Suit; Contest with Claimcmt. Appeal from the Circuit Court of Pike. Tried before the Hon. John P. Hubbard. The original action in this case was brought by G-. F. Holloway, against S. J. Seals, and was commenced on the 16th January, 1882 ; the cause of action being the defendant’s promissory note for $850, which was dated July 27th, 1881, and payable to the plaintiff or bearer. An ancillary garnishment was sued out against John IT.

Bill in Equity for Injunction of Sale under Mortgage, an Account, and Redemption; Cross-Bill for Reformation and Foreclosure. Appeal from the Chancery Court of Bullock. Heard before the Hon. John A. Foster.

Bill in Equity by Judgment Creditor, for Discovery and Sale of Debtor’s Property. Appeal from the Chancery Court of Pike. Heard before the Hon. N. S. Graham.

Action by Railroad Corporation, on Subscription for Stoclc. Appisal from the Circuit Court of Crenshaw. Tried before the Hon. II. D. Clayton. This action was brought by the appellant, a domestic corporation, against Eli Matthews and M. T. Matthews; was commenced on the 14th February, 1883, and was founded on a writing signed by the defendants, which was in these words: “Crenshaw County, Ala. July 26th, 1881.

Statutory Detinue for Personal Property. Appeal from the Circuit Court of Barbour. Tried before the Hon. II. L>. Clayton. This action was brought by Lucius Johnson, against John Thomas, to recover “ one bay horse colt named Oharley, with value of hire or use thereof from 2d January, 1883 and was commenced in a justice’s court, on 5th February, 1883.

Bill in Equity by Mortgagor, to enjoin Sale under Mortgage, and to establish Equitable Set-off. Appeal from the Chancery Court of Lowndes. Heard before the Hon. John A. Foster.

Action for Money Had cmd Received under Deposit or Loan. Appeal from the Circuit Court of Bullock. Tried before the Hon. H. D. Clayton. This action was brought by Mrs. Julia A. Still, as the administratrix of her deceased husband, Benjamin Still, against James Tamplin ; and was commenced on- the 21st November, 1881.

Statutory Real Action in nature of Ejectment. Appeal from the Circuit Court of Coffee. Tried before the Hon. II. D. 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.

Bill in Equity by Remainder-man, against Executor as Trustee, for Account and Settlement. Appeal from the Chancery Court at Mobile. Heard before the Hon. John A. Foster.

Statutory Detinue for Horse, by Winner at Raffle. Appeal from the Circuit Court of Mobile. Tried before the Hon. Wm. E. Clarke. This action was brought by Mary Nassano, against Charles F. Koppersmith and two other persons, to recover a horse, which the plaintiff claimed to have won at a raffle, together with damages for its detention.

Action for Breach of Special Contract of Employment. Appeal from the City Court of Selma. Tried before the Hon. Jona. Haralson.

Action on the Case by Landlord, agaim-st Purchaser of Crops with Notice of Statutory Lien. Appeal from the Circuit Court of Bullock. Tried before the lion. H. D. Clayton. This action was brought by Moses W. Thompson, against Amos Powell and others, and was commenced on the 20th May, 1882.

Action on Account; Plea of Set-Off. Appjsal from the Circuit Court of Barbour. Tried before the Hon. H. D. Clayton. This action was brought by the appellants, merchants doing business as partners in the city of Philadelphia, against Jason G. Guice; and was commenced on the 14th September, 1882.

<p> Bill in Equity for Relief against J'udgment at Law. </p> <p>Appeal from the Chancery Court of Coffee.</p> <p>Heard before the Hon. John A. Foster.</p> <p>cited Beadle v. Graham, 66 Ala. 102; 1 Brick. Dig. 666, §376; 2 Story’s Equity, §§ 81, 887.</p>

Bill in Equity for Cancellation of Deed, as Cloud on Title. Appeal from the Chancery Court of Conecuh. Heard before the Hon. John A. Foster.

jBill in Equity ly Jxtdgm.ent Creditors, to set aside Mortgage, or have it declared General Assignment, and for Sale of Property. Appeal from the Chancery Court of Bibb. Heard before the Hon. Thomas Cobbs.

Bill in Equity for Allotment of Dower, and Account of Rents and Profits. Appeal from the Chancery Court of Perry. Heard before the Hon. Thomas Cobbs. Held: by the decree in chancery rendered in the suit against Lockett and Foster. A judgment or decree is conclusive only on the question put in issue and decided. — Ford v. Ford, 68 Ala. 144; Davidson v. Shipman, 6 Ala. 27; Bosv>ell v. Oar-lisle, 70 Ala. 249 ; Johnston Jno. P. Tillman, and with him Pjettus & Dawson, contra.

Action on Official Bond of Probate Judge. Appeal from the Circuit Court of Jackson. The record does not show the name of the presiding judge. This action was brought by William M. Crider, against John B. Tally and others, the sureties on his official bond as the probate judge of said county; and was commenced on the 9th November, 1881.

Statutory Real Action in nature of Ejectment. Appeal from the Circuit Court of Clarke. Tried before the Hon. Wm. E. Clarke.

Action against Railroad Company, for Injuries to Stock. Appeal from the Circuit Court of Lawrence. Tried before the ílon. TI. C. Speake. This action was brought by John W. Bayliss, against the appellant corporation, to recover damages for the killing of a horse belonging to the plaintiff, by the alleged negligence of the defendant’s servants ; and was commenced on the 10th December, 1881.

Action for Money Had and Received, by Mortgagee of Orojps . against Purchaser. Appeal from the Circuit Court of Bullock. Tried before the Hon. H. D. Clayton. This action' was brought by J. O. Hough' against K. T. Jones, was commenced in a justice’s court, and removed by appeal into the Circuit Court, where the plaintiff had a verdict and judgment. The complaint claimed one hundred dollars, as money had and received by the defendant, to and for the use of the plaintiff.

Bill in Equity to enforce Trust in Lands, in nature of Bill ' for Specific Performance by Purchaser. Appeal from the Chancery Court of Dallas. Heard before the lion. John A. Foster.

<p>Action against Railroad Company, for Injuries to Stock.</p> <p>Appeal from the Circuit Court of Colbert.</p> <p>Tried before the Hon. H. C. Speake.</p> <p>This action was brought by William J. Carloss, against the appellant, a corporation engaged in operating a railroad in this State; and was commenced on the 29th August, 1882. The complaint contained two counts. The first count claimed $60 “as damages, for that whereas, in the month of January, 1882, the plaintiff had and own.ed one large fine milch-cow, about four years old, of the value of $40, and two fine work-oxen about three years old, worth $40, and one large two-year-old steer, worth $10; and on or about the 21st of said month, in the county of Colbert, Alabama, the said cow, the two-year-old steer, and one of the three-year-old oxen were killed, and the other one injured or damaged to the value of ten dollars, by the negligence of the defendant in running a train of cars and locomotives on the railroad of said defendant situated in said county, and thus became wholly lost to plaintiff:; to his damage $60.” The second, count also claimed $60 as damages, “for that whereas, during the month of January, 1882, and previous to that time, the defendant was using and operating a line of railroad, extending from the city of Memphis, in Tennessee, to the town of Stevenson, in Alabama, which said line of railroad, extends through said county of Colbert; and plaintiff avers that, in the month of January, 1884 (?) he had and owned” the cow and oxen described as above; “and that- said defendant, in said month of January, 1882, while running a train of cars and locomotives on said railroad in said county of Colbert, so carelessly and negligently as to run said locomotive and train of cars upon and against the said cow and oxen, that the same were killed or injured ; .to the damage of plaintiff $60.”</p> <p>The defendant demurred to each count of complaint, assigning the following grounds of demurrer to the .first count: 1st, “ because it fails to aver that said alleged injury and trespass was occasioned by the killing or striking of said animals, or any of them, by the locomotive or cars of this defendant;” 2d, “ because it contains no avérment that there was any collision between said animals and the locomotives or cars of this defendant;” 3d, “ because it fails to aver any negligence on the part of the defendant, except as to said alleged in jury to one of the oxen;'” 4th, “because said count is vague and indefinite, in that it fails to aver the place in said county where said alleged injury occurred, and, by such failure, defendant is not apprised of a fact material to be known for the proper defense of this suit;” 5th, “because said count is vague and indefinite, in that it does not show that the alleged negligence of defendant, in running a train of cars on its railroad, had any connection with the loss and damage to plaintiff’s said property as complained of in said count;” 6th, “because said count is argumentative, and is not an intelligible statement of facts, as required by law.” The same grounds of demurrer were assigned to the second count. The court overruled the demurrer, and the cause was tried on issue joined on the plea of not guilty.</p> <p>On the trial, as appears from the bill of exceptions, the plaintiff introduced one Iiowell as a witness, who testified that, “about one or two o’clock in the afternoon of about January 1st, 1882,” he walked down the railroad track in search of some stock, and, as he passed, saw plaintiff’s cattle, which he described, in plaintiff’s field about one hundred yards from the railroad; that he found his stock in a field about one mile from the railroad, and then returned, having been absent about an hour and a half.; that he was walking back on the railroad track; near the bridge over Cane Creek, when he was overtaken and passed by a train of cars; that he heard the train, after ■passing him, “whistle, and stop, and then backthat, after crossing the bridge; he saw the train standing still; “and saw two persons walk around’ the pilot of thfe engine, where the cattle were killed, about three or four hundred' yárdé distant from, him;” that the train moved off before he readied it, and that, on arriving at the place, he found the cattle killed and injured, as he described. During the examination' of' this witness, plaintiff asked him this -question: “If, during your absence from the railroad on- the occasion in question; another train had passed, could you have heard it ? ” to which question he answered, “that he could ’have heard any’other train, and that there was no other train.” -The defendant objécted to this question and answer each, as calling for and expressing the mere-opinion of the-witness; and-an exception was duly reserved to the overruling of these objections. This being the only evidence as to the time-when the injury occurred, the defendant moved the court, after the plaintiff had closed, to exclude it from the jury, on the ground of a variance between it and the averments of the complaint; which motion the court sustained “as to the first count, but overruled as to tile second count;” and to the overruling of said motion the defendant duly excepted.</p> <p>“The plaintiff offered in evidence a part of the record of a suit which-had been begun before a justice of'tHepeáce, against Jas. B. White, the stock agent of the Memphis &'Charleston Railroad Company, prior to the institution of this snit, 'for $60; which suit -had been quashed;”1 but the'court 'excluded this evidence, on the objection and motion of the .defendant: The plaintiff himself testified as to the value of’the cattle which were killed and injured; and’ as to the presentation of'his claim for damages to an agent of the defendant. The 'defendant seems to'have introduced no evidence, and the bill of exceptions states that the above “ was rill the eViderice:” '</p> <p>“ In the course of -his concluding argument to the jury, the plaintiff’s counsel stated, that the plaintiff -had brougHt his suit in a cheap court, before a justice of the peac’e,' but'it was decided to be beyond the jurisdiction- of the'court, and so he was forced to come into this court, and await its expense'and'delay. The defendant immediately excepted to said statement áo made, because it was the statement of facts which were riot in evidence before the jury. The plaintiff’s counsel did riot’ in any way retract his said remarks, but proceeded with his argument; and afterwards, in his further argument, stated to the jury, that the defendant’s counsel ‘stands up here as the representative of this bloated corporation ;’ ” and again, •“ This defendant is a large and powerful organization, perhaps counting its employees by the thousand, and it is here litigating with a poor man who has only a few head of cattle.” As to each of these statements, the bill of exceptions states, as before, “ Defendant immediately excepted to said statement so made, because it was the statement of facts which were not in evidence before the jury; but the counsel proceeded with, his argument, and did not in any way retract his remarks.”</p> <p>The several rulings of the court on the pleadings and evidence, as above stated, are now assigned as error; and assignments of error are also based on the remarks of counsel above copied, and the failure of the court to interfere, and to instruct the jury that théy could not consider said remarks for any purpose.</p>

Action against Railroad Gojnpanies, for Personal Injuries. Appeal from the Circuit Court of Montgomery. Tried before the Hon. John P. Hubbarp.

Bill in Equity by Purchaser, for Specific Performance. Appeal from the Chancery Court of Blount. Heard before the Hon. Thomas Cobbs. This case has been before this court on two former appeals, and may be found reported in 66 Ala. 292, and 72 Ala. 49.

Equitable Attachment and Ga/mishment; Claim of Exemption. Appeal from the Chancery Court of Madison. Heard before the Hon. N. S. Graham. The appeal in this case was sued out from a decree dismissing and disallowing a petition and claim of exemption, which was interposed by the appellant, Mrs. Susan S. Todd, one of the defendants in a pending chancery suit, to a fund of $267.75, which was paid into court by S. J. Kennerly & Co., garnishees in the cause.

Bill in Equity for Eoreclosv/re of Mortgages ; Gross-Bill for Cancellation. Appeal from the Chancery Court of Madison. Heard before the Hon. N. S. Graham.

Bill in Fgidty by Judgment Creditor, to set aside Convey ornee as Fraudulent, and subject Lands to Satisfaction of Judgment. Appeal from the Chancery Court of Jackson. Heard before the lion. N. S. Graham.

Statutqry Action in nature of Ejectment. Appeal from the Circuit Court of Morgan. Tried before the ILon. LI. C. Speake. This action was brought by James L). Cain and others, children and heirs at law of James W. Cain, deceased, to recover a tract of land particularly described in the complaint, with damages for its detention; and was commenced on the 5th April, 1884.

Bill in Equity l)y Ward, against Personal Representative of Deceased Surety on Guardian!s Bond, for Account and Settlement. Appeal from the Chancery Court of Madison. Heard before the Hon. ,N- S. Graham.

Bill in Equity by Administratrix, for Settlement and Distribution of Estate 'under Voluntary Agreement, and to enforce Vendor’s Bien on Land¡ Cross-Bill for Foreclosure of Mortgage. Appeal from the Chancery Court of Madison. Heard before the Hon. N. S. Graham.

Bill in Equity for Reformation of Conveyance, and Partition. Appeal from the Chancery Court of Jackson. Heard before the Hon. N. S. Graiiam.

Contest of Claim filed against Insolvent Estate. Appeal from the Probate Court of Colbert. Tried before the lion. John A. Steele. In the matter of the insolvent estate of F. C. Vinson, de-. ceased, of which R. B. Lindsay was the administrator, and against which a claim was filed by W. Cunningham, as the administrator of the estate of Hugh C. Leckey, deceased, which claim was contested, in the name of the administrator, by the distributees of the estate.

Bill in Equity for Redemption, by Judgment Or editor 8. Appeal from the Chancery Court of Madison. Heard before the Hon. N. S. Graham.

Action on Promissory Note, by Assignee against Maher. Appeal from the Circuit Court of Colbert. The record does not show the name of the presiding judge. This action was brought by James E. Keenan, against John Wagnon, and was commenced on the 12th February, 1884.

Bill in Equity, in matter of Probate of Will, Administration, and Settlement of Decedents Estate. Appbaxj from the Chancery Court of Madison. Heard before the Hon. N. S. Grai-iam.

Fvnal Settlement of Accounts of Deceased Administrator. Appeal from the Probate Court of Marshall. Tried before the ITon. Thos. A. Street. In the matter of the final settlement of the accounts and vouchers of James H. Moore, deceased, as administrator of the estate of Simon Jacobs, deceased ; between A. J. McDonald, as the administrator of said Moore’s estate, and Henry G. Jacobs, as administrator de bonis non of said Simon’s estate.

Action on Promissory Note, payable to Oomm.ittee of Lunatic. Appeal from the Circuit Court of Blount. Tried before the Hon. Leroy E. Box. This action was brought in the name of James A. Reid, who was described as “ a lunatic, who sues by his next friend, S. S. Walker,” against John Reid ; was commenced on the 5th September, 1874, and was founded on a bond, or promissory note under seal, for $1,405, executed by the defendant and one A. O. Walker, who was not sued.

Action against Railroad Oorrvpawy, for Personal Injuries. Appear from the Circuit Court of Talladega. Tried before the lion. Leroy F. Box.

Statutory Action in natnore of Ejectment. Appeal from the Circuit Court of Etowah. Tried before the Hon. Leroy E. Box. This action was brought by Samuel Henry, against the county of Etowah as a corporation, to recover a town lot in Gadsden, known and described as lot No. 181; and was commenced on the 30th November, 1880.

Action on Promissory Note ;■ Plea of Set-Off. Appeal from the Circuit Court of Coosa. Tried before the Hon. James E. Cobb. This action was brought by Esselman Yarner, against George W. Calloway, was commenced on the 2d April, 1883, and was founded on the defendant’s promissory note for $500, which was dated the 4th March, 1872, and payable on the 1st January, 1877.

Special Action on the Case by Landlord, against Purchaser of Tenants Crop with notice of Lien. Appeal from the Circuit Court of Talladega. Tried before the Hon. Leroy F. Box. This action was brought by Joseph H. Keith, against William Baker, and was commenced before a justice of the peace.

• Appeal from the Circuit Court of DeKalb. Tried before the lion. Leroy F. Box.

Petition for Supersedeas of Execution on Ingtmction Bond. Appeal from the Circuit Court of Madison. Tried before the Hon. H. C. Speaicb. This was a petition by Archie McCalley, James R. McCalley, and Charles S. McCalley, to supersede and quash an execution, which had been issued by the clerk of said court, in favor of George W. Wilburn & Co., against the petitioners and one Thomas S. McCalley, and which was founded on an injunction bond executed by them.

Bill in Equity for Foreclosxtre of Mortgage, given by Executors and Devisees for Debt of Testator. Appeal from the Chancery Court of Madison. Heard before the Hon. N. S. Graham.

Pill in Equity for Cancellation of Mortgage, or Redemption. Appeal from the Chancery Court of Macon. Heard before the Hon. N. S. Graham. The original bill in this case was filed on the 19th November, 1881, by John IT.

Bill in Equity by Wards, to enforce and foreclose Mortgage gimen by Guardian to Surety on Official' Bond. Appeal from the-Chancery Court of Tallapoosa. Heard before the Hon. N. S. G-rai-tam. The bill in this case was filed on the 23d May, 1883, by John TI.

Gertiorari to Justice's Judgment in Action of Forcible Entry and Detainer, or Unlawful Detainer. Appeal from the Circuit Court of Lee. Tried before the ILon. H. L>. Clayton. This action was brought by J. W. Clayton, against J. H. Littleton; was commenced before a justice of the peace, on the 24th January, 1881, and was removed by certiorari, sued out by the defendant, into the Circuit Court.

Trespass for Illegal Seizure of Stock of Goods. Appeal from the Circuit Court of Clay. Tried before the Hon. Lejrov F. Box. This action was brought by Merit Street, against James B. Slade, W. B. Jackson, and three other persons, to recover damages for an alleged trespass by the defendants in seizing a stock of goods belonging to the plaintiff; and was commenced on the 12th December, 1884.

Statutory Detvnue for Horse. Appeal from the Circuit Court of Talladega. Tried before the Hon. Leroy F. Box. This action was brought by Merit Street, against James Mc-Olerkin, to recover a horse, with damages for its detention; and was commenced on the 11th November, 1882. The plaintiff having executed the necessary bonds, and the defendant failing to give bond, the horse was delivered to the possession of the plaintiff.

Certiorari from Justice's Judgment. Appeal from the Circuit Court of Jackson. Tried before the Hon. H. C. Speake. This action was brought by Mrs. Callie E. Payne, the wife of Martin A. Payne, against M. M. Grantham, to recover an alleged balance of $49.80 due on a promissory note ; and was commenced before a justice of the peace, on the 6th March, 1882.

Statiáory Peal Action in nature of Ejectment. Appeal from the Circuit Court of Cherokee. Tried before the Hon. Leroy F. Box. This action was brought by Joseph W. Bedwell, against Mrs. Louisa A. Bedwell and Robert L. Bedwell, to recover the possession of a tract of land particularly described in the complaint, with damages for its detention ; and was commenced on the 5th March, 1881.

<p>Certiorari to Justice's Judgment, in matter of Claim Suit.</p> <p>Appeal from the Circuit Court of Calhoun.</p> <p>Tried before the Hon. Leroy F. Bon.</p>

Action against Railroad Company by Female Passenger, on accoimt of Insulting Conduct of Strangers at Station. Appeal from the Circuit Court of Shelby. Tried before the Hou. S. II. Sprott. The opinion in this case states all the material facts. On all the evidence adduced, which is set out in the bill of exceptions, the court gave a general charge in favor of the defendant, to which the plaintiffs excepted, and which they now assign as error.

Action for Unlawful Detainer of Lands. Appeal from the Circuit Court of Shelby. Tried before the Hon. S. H. Sprout. This action was brought by Robert E. Bolling, against Mrs. M. E. King, to recover the possession of a house and lot in the town of Calera, which, as the complaint alleged, the plaintiff had leased to the defendant for a term ending on the 10th January, 1882; and was commenced, before a justice of the peace, on the 21st February, 1882.

Mandamus to Probate Judge, refusing to grant License for Retailing Spirituous Liquors. Appeal from the City Court of Montgomery. Tried before the Hon. Thos. M. Arrington. This cause originated in an application by A. Moog, to Hon. F. C. Randolph, judge of the Probate Court of Montgomery county, for a license to retail spirituous liquors within the corporate limits' of the city of Montgomery, for and during the year 1883, on the payment of $125 as the price of the license.

Tried before the Hon. Tnos. M. Arrington. In the matter of the assessment of escaped taxes on money loaned, &c., made by C. T. Pollard, as tax-collector of said county, against Calvin L. Sayre. Sayre denied the authority of the tax-collector to make the assessment, and took an appeal to the Board of Revenue; and that body having sustained the regularity and legality of the assessment, he removed the proceedings, by certiorari, into the City Court.

Petition to set aside Judgment of Special Supreme Court. Appeal from the Chancery Court of Limestone. Heard before the Hon. Tiros. Cobbs. In this case, Stone, C. J., and Clopton, L, were incompetent to sit, having been of counsel; 'and the case was thereupon certified by Somerville, J., to the Governor, who appointed Jno. M. McICleroy and Thos. Seay, attorneys of tbe court, to sit with Judge Somerville as- a special court.