Volume 78 — Alabama Reports

Tried before the Hon. S. IT. Sprott. ' The appellant, Peter Hill, was tried and convicted on an indictment containing four counts, the first of which that the defendant feloniously took and carried away one thousand pounds of seed-cotton, the property of David Williams.

Tried before tbe lion. O. J. Semmes. The appellant, Noah ITarrison, was convicted of murder in the second degree, and sentenced to the penitentiary.

Tried before the lion. John Mooee. The indictment upon which the appellant was tried and convicted, charged him with the larceny of a mule belonging to Solomon Craig.

Tried before the Hon. S. H. Spkott. The appellant, William Banks, was tried and convicted under an indictment which charged that “on his examination as a witness before the grand jury, at the Fall term, 1883, of the Circuit Court of Walker coiinty, duly sworn to testify, by the foreman of the grand jury, who had authority to administer such oath, in a case before the grand jury of the State against some person whose name was to the grand jury unknown, for unlawfully selling…

Tried before A. 6. Smith, Esq., Special Judge. The appellant was tried and convicted on an indictment which contained three counts ; the first charging, that he broke into and entered a building, the property of E. W. Hookes, in which a thing of value, to-wit, corn, was kept for use, sale or deposit, with the intent to steal.

S. H. Spruit. This was a prosecution, commenced by affidavit, before B. M. Allen, a justice of the peace, charging the defendant with opposing or resisting one Brock, a constable, in the execution of a writ of seizure in a detinue ease, issued by said Allen. The case was made returnable to the County Court of Jefferson, where the defendant was tried and convicted. He appealed to the Circuit Court.

Tried before the Hon. James Aiken. The appellant, Wm. Boggus, was tried and convicted on an indictment which contained two counts; the first of which charged that he “ did keep, or have coutrol of, a house or room in which a person could conceal himself, where spirituous, vinous or malt liquors were furnished or obtained in violation or evasion of law.” The second count charged, that he “did keep, or have control of, a house or room in which a person could conceal himself,…

Tried before the Hon. Henry JD. Clayton. The appellant was indicted, tried and convicted, under section 4353 of the Code, for selling or removing certain cotton on which one Oates had a lawful and valid claim under a written instrument. On the trial, it was shown that defendant had sold some cotton raised by him in Henry county during the year 1880.

Tried before tbe Hon. S. H. Sprott. The indictment contains three counts, charging the appellant, Robert Pullam, and Celia Pullam, his wife, with embezzlement, larceny, and receiving stolen money. The trial resulted in the acquittal of the wife, and the conviction of the husband as charged in the first count.

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

Tried before the Hon. Leroy F. Box. This action was brought by Samuel F. Ryan, against Thomas Beard, to recover the possession of a tract of land, which was described in the complaint as “the northwest part (B) of fractional section seventeen (17), township seven (7), range four (4) east, containing seventy-nine (79) acres, more or less;” and was commenced on the 27th January, 1879.

. Tried before tlie Hon. Leroy F. Box. This action was brought by John F. Thomason, against B. B. Wharton ; was founded on the defendant’s promissory note under seal for $300, which was dated January 8tb, 1866, and payable one day after date, to A. A. Hughes or bearer; and was commenced on the 13th January,. 1873.

Heard before the Hon. John A. Foster. The original bill in this case was filed on the 2d January, 1878, by Mrs. Anne E. Milhous, the wife (and formerly the ward) of Frank L. Milhous, against Mrs. Sallie Blackwell; and sought to foreclose a mortgage on a tract of land, called the “Davis land,” which was given to secure the payment of two notes therein particularly described, each dated March 22d 1872, and payable on the 1st January, 1872, and 1873, respectively, to the…

Tried before the lion. James E. Cobb. This action was brought by John Burks, to recover the possession of the south-east quarter of section seventeen (17), township twenty-four (24), range twenty (20); and was commenced on 16th February, 1882. William Tillery was tlie original defendant, but, by consent, Thomas PI. Mitchell was substituted in his stead, who held possession as county superintendent of public schools.

Tried before the Hon. John P. Hubbard. This was a statutory trial of the right of property in and to a horse, between Mrs. Martha L. Parker as claimant, and M. W. Wimberly, plaintiff in execution againt Nason Parker, who was the husband of the claimant; and was commenced in a justice’s court, on the 14th December, 1883.

Tried before the Hon. Jon a. Haralson. This action was brought by the First National Bank of Montgomery against N. H. B. Dawson, as the indorser of two promissory notes, one of which was given in renewal or extension of the other.

<p>Appeal from the Probate Court of Talladega.</p> <p>Tried before the lion. Geo. IT. Miller.</p> <p>In the matter of the final settlement of the accounts and vouchers of Mrs. Olive W. Cameron, as the administratrix of the estate of’Mrs. Caroline IT. Ford, deceased. The distributees filed written objections to the account-current as stated by the administratrix, aud moved to charge her, among other tilings, with “ a lot of silver-ware, valued at $100.” The only evidence adduced in reference to this item was as follows : Mrs. Ford, the decedent, bought a lot of silver-ware, at $50, at the administrator’s sale of her husband’s property in Georgia ; and she carried it with her when she went to live with Mrs. Cameron, who was her sister. J. N. Weisinger had married a daughter of Mrs. Cameron, and lived in the house with them. Said Weisinger testified, as a witness for the administratrix, “that on one occasion while his wife and Mrs. Ford were present, his wife spoke to him about some silver-ware that she had heard was for sale very cheap, and asked him if he could let her have • the money to buy it; that Mrs. Ford then" remarked, “ What is the use of your huyi/ng silver-ware? You can have mine that lie did not see any sil ver-ware delivered to his wife by' Mrs. Ford at the time, and could not say whether or-not any sil ver-ware was ever delivered or turned over to his wife by Mrs. Ford, or by any one else.” The court refused to charge the administratrix with this item, and the distributees excepted; and they now assign this ruling, with others, as error.</p> <p>cited Sims v. Sims, 2 Ala. 117; Huddleston v: Huey, 73 Ala. 215; Walker v. Crews, 73 Ala. 412.</p>

Heard before the Hon. W. C. Oliver’. In the matter of the final settlement of the accounts of Thomas C. Clark, as administrator de bonis non of the'insolvent estate of John M. Eubank, deceased. Said Eubank died-in February, 1861, leaving a widow and several children, and possessed of a tract of land, on which he resided, and about twenty slaves.

Tried before the Hon. Leroy F. Box. This action was brought by John Swann and John A. Billups, as trustees, against Frank H. Standifer and wife, to recover the possession of a tract of land, which- was described in the complaint as “the whole of section seventeen (17), township seven (7), range nine (9) east (except the north-west quarter of the north-west quarter of said section), and the south half of the south-east quarter, and the south half of the southwest quarter of…

Tried before the Hon. Leroy F. Box. This action was brought by John H. Collins, against the Bank of Borne, Georgia, a foreign corporation; was founded on a certificate of deposit for $873.58, signed by the defendant’s cashier, which was dated March 16, 1880; and was commenced by original attachment, sued out before a. justice of the peace, on the'6th July, 1881, on the ground of the defendant’s non-residence.

Appeals from the Chancery Court of Marengo. Heard before the Hon. Thomas Cobbs.

Tried before the Hon. Leroy F. Box. This action was brought by J. H. Smith, against T. P. Beck-well, J. C. Graham and James H. Savage, who were described as “doing a saw-mill business at Ladiga, Alabama, under the partnership name of the Ladiga Saw-Mill Company ;” was founded on a promissory note under seal for $147.70, alleged to be executed “by the defendant to said plaintiff, on the 23d •July, 1883, and due the 1st October, 1883 and was commenced on the 12th July, 1884.

Tried before the Hon. James E. Cobb. This action was brought by M. W. Mullins, as the administrator of the estate of Robert Bennifield, deceased, against Milton Webb, to recover the possession of certain lands, particularly described, which were subdivisions of sections three (3) and ten (10) “in township twenty (20), range thirteen (13) east, in said county of Randolph and was commenced on the 25th June, 1881.

Clair. Heard before the Hon. John A. Foster. The original bill in this case was filed, on the 23d September, 1880, by Shelby W. Chadwick, as trustee under the will of Mrs. Eliza M. Erwin, deceased, against Thomas K. Carson and others ; and sought the foreclosure of a mortgage, which said Carson had executed to the complainant, and a copy of which was made an exhibit to the bill.

Heard before the Hon. John A. Foster. The bill in this case was filed by Joseph R. Dudley, on what day the record does not show, against Farris & McCurdy as partners, to abate as a nuisance an embankment which they had erected on their own lands, on the east bank of Big Swamp creek, and by which, as the complainant alleged, the waters of the creek were accumulated in times of heavy rains, and thrown in increased volume upon his lands on the west side of the creek; and he…

Fleard before the Hon. John A. Foster. The bill in this case was filed on the 8th February, 1883, by Mrs. Julia A. Stouts and others, “ only surviving children and heirs at law of B-ichard Geiger, deceased,” who was a son of Jacob Geiger, ’deceased, against T. L. Farris and Elizabeth Geiger; and prayed an account of certain moneys which went into the hands of M. D. Farris, deceased, who was the father of said T. L. Farris, and in which the complainants claimed an interest as…

Tried before the Hon. Henry C. Speake. This action was brought by Mrs. E. C. Humes and others, children of Reuben Chapman, against Morris Bernstein; and was commenced on the 12th July, 1871.

Tried before the Hon. S. H. Sprott. This action was brought by Mrs. Eliza G. Sheerer against Mrs. Sarah Weils and others, to recover the possession of a house and lot in Montevallo; and was commenced on the 10th April, 1883.

Tried before the Hon. Leroy E. Box. The original action in this case was brought by E. W. Teague against A. Massey, and was commenced by attachment, sued out before a justice of the peace on the 16th December, 1879.

Tried before the Hon. Lekoit F. Box. This action was brought by Jam.es M. Elliott, as surviving partner of the late firm of Cothran & Elliott, against A. O. Dycke and B. F. Reynolds, to recover the possession of a tract of land called the “Garrett place,” which was particularly described in the complaint; and was commenced on the 10th December, 18T9.

Tried before the Hon. S. H. Sprott. This action was brought by the appellant, a domestic corporation, suing as assignee, against H. L. Oliver and C. D. Oliver; was founded on the defendants’ promissory note for $125, dated the 1st December, 1879, and payable twelve months after date, to the order of T. N. Fowler; and was commenced on the 9th July, 1883. The record does not show what pleas were,filed, but there was a verdict for the defendants on issue joined.

Tried before the Hon. H. C. Speake. This action was brought by John P. Timberlake and Henry Bunn, suing as joint plaintiffs, against Walter Rosser and William Washington, and was commenced on the lbth April, 1875.

Tried before the lion. Leroy F. Box. This action was brought by Calvin M. Wheeler, against George W. Alexander and his mother, Mrs. Anna Alexander, to recover the possession of a tract of land, which was described as the west half of the north-east quarter of section ten (10), township thirteen (13), range eleven (11); and was commenced on the 19th February, 1878.

Clair. Tried before the Hon. Leroy F. Box. This action of ejectment was brought by John Swann and John A. Billups, as trustees of certain railroad lands under a mortgage, or deed of trust, executed to them in the name of the State of Alabama, for the use of the bondholders of the Alabama and Chattanooga Railroad Company, against William Kidd; and was commenced on the 27th February, 1882.

Tried before the Hon. Berov F. Box. This action was brought by Shealy & Finn, suing as partners, against Joseph A. Edwards, Joseph Iiardie and others, to recover damages for an alleged trespass in the seizure and sale of a stock of goods; and was commenced on the 19th of January, 1882.

Tried before the Hon. Jas. E. Cobb. This was an action of trover, with case joined, commenced by the appellants, to recover the value cf a mare alleged to have been converted by the defendant. The plaintiffs proved the execution of two mortgages on the mare, by one C. C. Johnson, one bearing date April 24th 1883, in favor of plaintiffs, and due October 1st, 1883; the other bearing date April 7th, 1883, in favor of Ii.

Clair. Tried before the lion. Leroy F. Box. This action was brought by James Embry, against David A. Aderholt, to recover the proceeds of sale of four bales of cotton, which the defendant had bought from one Frank Ward, and which the plaintiff claimed as the landlord of said Ward ; and was commenced on the 11th February, 1881.

Tried before the Hon. Jas. E. Cobb. The appellee, Ross Barton, as trustee for Clara J. Barton, brought this action against the appellant, to recover certain money alleged to have been received to his use.

Tried before the Hon. Jas. E. Cobb. This action was commenced before a justice of the peace, to recover the amount of a note given the plaintiff by the defendant. On appeal to the Circuit Court, a complaint was filed, declaring on the note, and containing the common counts. The defendant pleaded non assumpsit, payment, set-off, failure of consideration, and want of consideration ; and the cause was tried on issue joined on these pleas.

Tried before the Hon. Jas. E. Cobb. This was an action' on a promissory note, which purported to be signed by B. B. Blassengame, the intestate of defendant. The case was tried on pleas setting up that Blassengame was non compos mentis, and a plea of non est factum.

<p>Appeal from Elmore Circuit Court.</p> <p>Tried before the Hon. Jas. E. Cobb.</p> <p>This was a real action under the Code, and was brought by the appellants, to recover possession of certain lands in Elmore county. The plaintiffs and defendant were both purchasers at execution sales of the property in question, the plaintiff claiming title by a purchase under an execution from the Chancery Court of Tallapoosa county, and the defendant claiming under an execution from the Probate Court of the same county. Both of these judgments were valid, and executions had been regularly issued without the lapse of an entire term ; the execution from the Chancery Court for a longer period than that from the Probate Court. In the interim between the return of one execution and the issuance of another on the decree in the Chancery Court, the sheriff made a regular sale of the property in question under the execution from the Probate Court, and the defendant became the purchaser. It was shown that, when the sheriff sold under the probate execution, he did not have the chancery execution in his hands, but that after-wards, and before the lapse of an entire term, another execution from the Chancery Court came to his hands, under which he made another sale of the property, at which the plaintiffs purchased.</p> <p>This was all the evidence, and the court, at the request of the defendant, charged the jury that, if they believed the evidence, they must find for tile defendant, and refused a similar charge in favor of the plaintiff. The charge given and the refusal to charge as requested áre now assigned as error.</p>

<p> Hill in Equity to enforce Vendor’s Lien. </p> <p>1. Vendor’s lien; partial payment in cotton. — A written obligation for the delivery of cotton, in payment for the purchase-money for lands, does not create a lien on any particular cotton; and cotton being subsequently delivered by the maker to the payee, its application is gov- • erned by the same rules which regulate general payments by a debtor to his creditor; it may be shown to have been applied, by agreement, to another indebtedness.</p> <p>2. Amendment of bill; when necessary. — An amendment of the bill is necessary to bring forward new matter in avoidance of matter set up in the answer, but is neither necessary nor proper to traverse defenses set up in the answer.</p> <p>3. Register’s findings on facts; when will not be disturbed. — On appeal from the chancellor’s decree, overruling exceptions to the register’s report on a disputed question of fact, the decree will not be disturbed, unless it is shown to be clearly wrong.</p>

Heard before the Hon. N. S. Graham. The appellant, John B. Nelly, filed this bill against Levi Longshore, Lehman, Durr & Co., Ethelred Massengale, and ,B. L. Dean, and prayed'for the foreclosure of a certain mortgage to Lehman, Durr & Co., and a distribution of the proceeds of the sale. The material facts may be .thus stated. . The complainant on October 1st, 1-881, recovered a judgment against.

Tried before the Hon. J. E. Cobb. ■ This was a statutory real action brought by the'appellees, who are the heirs at law of John H. Echols, to recover certain lands in the possession of appellant. It was proved that John H. Echols died intestate, leaving the plaintiffs as his only heirs at law, and that in his life time he owned an undivided half interest in the lands in question.

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 11th December, 1883, by Campbell & Wright, suing as partners, against J. M. Conner and George A. York; and sought to restrain the issue and levy of an execution on a judgment which said Conner liad obtained against the complainants, and to establish an equitable set-off against it to the amount of $27, taxed as a part of the costs as the witness fees due said York.

Tried before the Hon. H. D. Clayton. This action was brought by George D. and George W. Hooper, suing jointly, against the Columbus & Western Railway Company, to recover the possession of certain town lots in Opelika, through which the track of the defendant’s road ran, and was commenced on the 17th April, 1882.

Tried before the Hon. Jas.. E. Cobb. This action was brought by the appellant, a private corporation, against A. J. Dorman, and was commenced on the 19th March, 1884.

Appear from the Circuit Court of Lee. Tried before the Hon. Henry D. Clayton. This action was brought by R. J. Trammell, against Gr. N. Hudmon, the owner of a lot in the town of Opelika, and C. M. Worthington, a contractor who had built a house on the lot under a contract with Hudmon. The complaint contained several counts, each claiming a lien on the house and lot for materials furnished for its erection.

Heard before the Hon. J. M. Falkner, as special chancellor. The original bill in this case was filed on the 18th July, 1881, by Samuel Gr.

Heard before the Hon. John A. Poster. The bill in this case was filed by Bessie Hanson and others, children of M. M. Copeland and Margaret A. Copeland, his wife, against Josiah Morris and the said M. M. Copeland; and sought to obtain a conveyance of th.e legal title to certain lots lying near the city of Montgomery, which said Morris had sold to said M. M. Copeland, and to enjoin a threatened action at law by Morris to recover the possession of the lots.

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

John A. Foster. The original bill in this case was filed on the 25th March, 1876, by Andrew J. Dozier, against ThweattE. Mitchell, John W. Durr, and Lehman, Durr & Co.; and sought the correction of a mistake in the description of a tract of land, as contained in a mortgage executed by said Mitchell to Lehman, Durr & Co., and in the subsequent conveyances from Lehman, Durr & Co. to Durr, as the purchaser at a sale under the mortgage, and by said Durr to the complainant.

Heard before the Hon. Thomas L. Fjrazer. In the matter of the insolvent estate of Isham Meadows, deceased, on the application of W. 1L Meadows, as administrator de bonis non, for an order to sell the lands for the payment of debts.

Tried before the Hon. Henry D. Clayton. The appellee brought this action against J.W. Brigham & Co. to recover damages for the breach of' a contract for the sale of goods on commission by him on their account. The case was tried on pleas of the general issue, non assumpsit, set-off and payment.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 2d May, 1884, by T. L. Farris and W. H. McCurdy, against Mrs. Mary J. Houston and her husband; and sought to enjoin a judgment at law which Mrs. Houston had recovered against them, in the Circuit Court of Montgomery, on the 15th June, 1883, and to have the debt applied as assets in their hands of the insolvent estate of Robert F. Simonton, deceased, of which they were the administrators de bonis non.

This was an application by petition, in the name of the Cincinnati, Selma & Mobile Railway Company, a private corporation, for a writ of mandamus, or other appropriate writ, to the presiding judse of the Circuit Court of Montgomery, Hon. John P. IDitbard, commanding him to vacate and set aside an order made during the June term of said court, 1885, in a cause therein pending, in which the State of Alabama was plaintiff, Fred.

Heard before the Hon. Tiros. M. Arrington. Held: as against the complainant, and as against each of the above named defendants, as a cross-bill, upon which the defendant making such answer shall be entitled to the same relief as upon a cross-bill regularly filed and at issue by a general denial of all matters not admitted in the pleadings.” The-cause being submitted for decree on…

Tried before the TIon. Leroy F. Box. This action was brought by the Tennessee and Coosa Rivers Railroad Company, a corporation chartered by an act of the General Assembly of Alabama, approved January 16th, 1844; and was commenced on the 23d June, 1880.

Tried before the ITon. Wm. E. Clarke. This action was brought by A. & B. Moog, merchants in Mobile, suing as partners, against the Phosnix Insurance Company; was commenced on the 24th April, 1882, and was founded on a policy of insurance for $12,500, which they had procured from the defendant on a cargo of merchandise shipped by them, per brig Mary Allerton, from Mobile to Galveston.

Heard before the Hon. N. S. Graham. ■ J. M. Chilton, and Geo. P. Harrison, Jr., for appellants. The purpose of the original bill was to foreclose a mortgage, and Crumley Brothers were the only defendants. The object of the petition is to defeat the entire proceedings, on the assertion of their invalidity, and to have the fruits of the illegal proceedings accounted for to the petitioners.

Tried before the Hon. John P. Hubbard. This action was brought by “ J. F. Imbs & Co.,” described as a corporation organized under the laws of Illinois, against Amelia Roswald and Philip Stohl, who were doing business together in the city of Montgomery as partners, to recover damages for the alleged conversion by the defendants of eighty barrels of flour; and was commenced on the 14th March, 1882.

Tried before the ILon. Henry D. Clayton. This action was brought by the appellants, suing as partners, against A. C. cited Dawson v. Higgins, 50 Ala. 49; Corner v. Jackson, 74 Ala. 465; Schuessler v. Gaines, 68 Ala. 556. cited F learner v. Dickerson, 65 Ala. 129; Schuessler v. Gaines,8 Ala. 556.

Tried before the Hon. Jas. E. Cobb. The appellee commenced this action against John B. Bilbro, who is the county treasurer of Macon county; to recover damages for the failure of Bilbro to pay certain claims against the fine and forfeiture fund of Macon county, when he had in his possession sufficient money belonging to that fund to pay the claims of plaintiff and all those haying priority over his.

<p> Action on Bond. </p> <p>1. Supersedeas bond; xohat does not comply with statute.- — Where', in an action of ejectment, on appeal from a judgment quashing a writ of possession, the presiding- judge made an order that on appellants “executing bond in the sum of two hundred dollars, the writ ordered to be suspended ,” a bond conditioned that the appellant “ shall satisfy and pay whatever damages the appellee may sustain by reason of said appeal, in event the judgment of said court shall be affirmed,” is not a supersedeas bond under the statute.</p> <p>2'. Bond; validity at common laxo; damages. — But such a bond is a valid, common-law bond, having been voluntary executed, and founded on a valuable consideration ; and possession of the lands being retained pending the appeal, the obligors are bound for damages sustained by the appellee, by reason of the loss of possession of the lands, and for expenses incurred for the services of an attorney in resisting a reversal of the judgment.</p> <p>8. Certificate, of affix'mance, as evidence. — The certificate issued by the clerk of the Supreme Court is not evidence, in another cause, of the facts therein stated. The only competent evidence of the affirmance • of the judgment is a properly certified or exemplified transcript of its record.</p>

Tried before the lion. John P. Hubbard. This was an action brought by the intestate of appellee, and is founded on a note given by the defendants, S. A. & D. Williams, as partners.

Tried before the LIon. Henry D. Clayton. Held: out of the fine and forfeiture fund. The petition alleged, that they were the owners of certain lawful and valid claims against the fine and forfeiture fund, which had been duly registered in the proper book by the treasurer.

Eullock Circuit Court. Tried before the ITon. IT. D. Clayton. This action was brought by E. W. Pickett against Jordan & Sons, to recover damages for fraud alleged to have been committed by them in the sale of a mortgage, given by one Giles Williams to Jordan & Sons, by withholding from him the fact that a mule, embraced in the mortgage, had been traded by Williams, and that one then in his possession was not covered by it.

Appeals from tlie Circuit Court of líale. Tried before the IIon. John Moore.

Ai>peal from Pike Chancery Court. Heard before Hon. N. S. Graham. The bill in this case was filed on August 28th, 1882, by the heirs at law of Joseph Wood, deceased, and sought to subject certain lands, which were purchased by one of the administrators at bis own sale, and afterwards transferred to third parties, to a lien for the purchase-money, which was alleged to be still due and unpaid.

Heard before the Hon. Thomas Cobbs. The bill in this- case was filed on the 13th September, 1880, by George G. Lyon, as the administrator of the estate of James McDermott, deceased, against Colpmbus Powell, the Georgia Banking and Trust Company, a foreign corporation, and several other persons; and sought, 1st, to have a certain.conveyance of lands, which said Powell had executed to complainant’s intestate, declared a mortgage, and foreclosed as such; 2d, to have a partition…

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 28th March, 1882, by W. B. Shapard, against O. A. Carroll and J. E. Williamson; and sought to enforce a vendor’s lien for the unpaid purchase-money of land. The chancellor overruled a demurrer to the bill, and, on final hearing on pleadings and proof, rendered a decree for the complainant; and each of these decrees is now assigned as error. The opinion states the material facts.

Heard before the Hon. Thos. Cobbs. The bill in this case was filed on the 30th December, 1881, by Ormond S. Steele, against William L. Watson and John D. Steele; and sought to redeem a tract of land of which said Watson was in possession, and to hold him accountable for rents and profits during his possession.

Tried before Eugene McCaa, Esq., an attorney of the court, selected by the parties on account of the in competency of the presiding judge. This action was brought by ’William T. Simmons against L. Lavender Simmons, to recover the possession of a tract of land particularly described in the complaint; and was commenced on the 6th October, 1881. The defendant pleaded not guilty, and the cause was tried on issue joined on that plea.

Tried before the Hon. H. C. Speake. The appellants in this case brought an action against L. C. Shotts, but were defeated on the trial, judgment on verdict being rendered for the defendant. Within three months after the rendition of this judgment, they filed their petition, verified by affidavit, asking a rehearing of the ease on the ground of surprise, accident, mistake, or fraud.

Tried before the lion. James E. Cobb. The appellant in this case, Paul Jones, obtained a judgment in the Circuit Court of Macon county, on the 7th April, Í883, against O. G. Motley; and an execution thereon issued on the 10th January, 1885, was levied by the sheriff on two horses, a buggy, and wagon; also, “ one lot of whiskey, beer, wines, brandies, cigars, bar-room fixtures, one keg of syrup (12 galls.), being all the goods, wares, merchandise, and personal property of…

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 11th October, 1883, by the Louisville Coffin Company, a foreign corporation, against Mrs. Sallie E. Stokes, her husband, C. M. Stokes, and Peter F. Alba; and sought to subject to the satisfaction of a debt, ■ alleged to be due from Mrs. Stokes to the complainant, a debt due to her by said Alba. A garnishment was also sued out against said Alba, and he paid the money due by him into court.

Heard before the Hon. Thomas Cobbs. The bill in this casp was filed on the 30th August, 1882. by the children of Thomas Taylor, deceased, by his first wife, the husbands of the married daughters-being joined as parties with their wives, against the personal representative and children of his second wife, Mrs. Louisa Taylor, who survived him; and sought, principally, to have the complainants’ rights declared and established in a certain tract of land, which contained about…

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 19th February, 1881, by the Elyton Land Company, a private domestic corporation, against Mrs. C. A. McDonald and her husband, W. J. McDonald ; and sought to enforce a vendor’s lien on certain lots in the city of Birmingham, for purchase-money alleged to be due and unpaid.

Tried before the Hon. S. IT. Sprott. This action was brought by Allen & Jemison, suing as partners, against Johnson & Thornton as partners, to recover dam- • ages for the breach of a written contract for the sale and delivery of 500 tons of coal; and was commenced on the 13th March, 1883.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 16th September, 1884, by Thomas J. Adams, against Mrs. Melissa M. Sims and her husband, John M. Sims, and Mrs. Lucinda Bayzor and her husband, N. M. Bayzor; and sought to compel the delivery of a conveyance by Sims and wife for a half interest in certain mill property, real and personal, which the complainant claimed to have purchased from Mrs. Sims ; also, the dissolution of a partnership in the…

Heard before the Hon. Tiiomas Cobbs. The bill in this case was filed on the 23d August, 1883, by Tilomas R. Roulhac, against Allen C. Jones and others; and sought the foreclosure of a mortgage, a copy of which was made an exhibit to the bill.

II. C. Speajce. The record in this case shows that, on the 1st Novémber, 1877, an action was commenced by the appellees, suing as partners, against Reuben Chapman and others, the appellants; that at the June term, 1882, by agreement, as recited in the minute-entry, the cause was submitted to the “ arbitrament of R. H. Wilson, David Wise, and John L. Rison, whose award shall be the judgment of the court;” that at the August term, 1883, as the minute-entry recites, “ came the…

<p> Judgment for Contempt against Refractory Witness. </p> <p>1. Contempt by refractory ■'witness before grand jury.- — A witness before the grand jury, refusing to answer any lawful questions as to his knowledge of gaining within the county during the preceding twelve months, ’is guilty of a contempt, and also of a misdemeanor (Code, § 4136); and if he is brought before the grand jury at their request, by order of the court, being imprisoned under a criminal charge or sentence, he is equally subject to the penalties of the law as if he had been summoned by subpoena.</p>

<p>From the Circuit Court of Marengo..</p> <p>Tried before the Hon. Vn. E. Clarke.</p>

From the Circuit Court of Colbert. Tried before the Hon. IT. C. Speakk.

This was an application by petition, on the part of Frank Hammock and James Elrod, who were under indictment for the murder of William Harris, for the writs of certiorari and habeas corpus to procure their discharge on bail, which had been refused by Hon. A. L. Moody, the probate judge of Franklin county. A copy of the proceedings had before the probate judge, certified by then) to be correct, was made an exhibit to the petition. The opinion states the material facts.

<p> Indictment for Selling Sp>irituous Liquors' without License. </p> <p>1. Spirituous liquors; what articles are included in the term. — Under an indictment for selling vinous or spirituous liquors without a license and contrary to law (Code, § 4204; Sess. Acts 1878-9, p. 71), a conviction may he had on proof of a sale of bitters — in this case, Busby’s Bitters, or Busby’s Improved System Invigorcmt — or other decoction of whiskey compounded, in quantity sufficient to intoxicate, with bitter herbs, barks, and other medicinal ingredients, which was bought for use as a beverage, was so used, and produced intoxication.</p> <p>2. Same; evidence as to character of article sold. — The fact that the bitters, or other decoction sold, was classed for the purposes of taxation, by the Treasury Department at Washington, as a proprietary medicinal preparation, is irrelevant, hearsay merely, and has no tendency to show that it does not contain whiskey in sufficient quantity to produce intoxication.</p>

From tbe Circuit Court of Lawrence. Tried before the Hon. H. C. Spbake. This was an application by petition, in the name of the mayor and aldermen of the town of Florence, for a writ of certiorari to bring before this court for review certain proceedings had before the lion. H. C. Speake, in vacation, on the petition of David Jones for a discharge from custody on habeas corpus.

From the Circuit Court of Lawrence. Tried before the lion. II. O. Speaks.

From the County Court of Jackson. Tried before the ITon. John B. Tally. The indictment in this case was found at the June' term, 1883, of the Circuit Court, and charged the defendant with living “ in a state of adultery or fornication” with Clarissa Bass.

Ejrom the Circuit Court of Bullock. Tried before the Hon. H. I). Clayton.

<p> Indictment for Living in Adultery. </p> <p>1. Husband and wife, as witnesses for or against each other. — Under an indictment against two persons l'or living together in adultery (Code, § 4184), the husband of the woman is not a competent witness for the man, when both are on trial together under the plea of not guilty.</p>

From the Circuit Court of Blount. Tried before the Hon. James Aiken. The defendant in this case, William L. Stewart, was indicted for the murder of William W. Whorton, by stabbing or cutting him with a knife. A trial was had on issue joined on the plea of not guilty, which resulted in a verdict finding the defendant guilty of murder in the second degree, and sentencing him to confinement in the penitentiary for the term of fifteen years.

From the Circuit Court of Dale. Tried before the Hon. IT. D. Crayton. The defendant in this case, William J. Ward, was indicted for the murder of Jacob J. Parmer, by shooting him with a pistol; and being tried on issue joined on the plea of not guilty, was convicted of murder in the first degree, and sentenced to be hanged.

Prom the County Court of Jackson. Tried before the Hon. John B. Tally.

From the Circuit Court of Colbert. Tried before the Lion. Ií. C. Speake. The indictment in this case charged that William Donnelly feloniously took and carried away a hog, the property of Salem Hampton. The indictment was found by a grand jury organized under the provisions of the act approved February 17th, 1885. — Sess. Acts 1884-5, pp. 181-86.

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

This was an application by petition, in the name of Aleck Crews, for the writs of certiorari and habeas corpus, to procure his discharge from the custody of -M. L. Passmore, deputy-sheriff and jailer of Barbour county, who held him under a judgment rendered by the Circuit Court of said county on the 3d December, 1885. The application for a discharge on habeas corpus was first addressed to lion.

<p> Indictment for Assault and Battery. </p> <p>1. What constitutes assault.- — Presenting and aiming an unloaded gun at a person within shooting distance, in such manner as to terrify him, he not knowing that the gun is not loaded, will not support a conviction for a criminal assault, although it may support a civil action for damages.</p>

From the City Court of Birmingham. Tried before the lion. II. A. Sharpe. The defendant in this case, LaFayette Cliamblee, was indicted for the murder of Marcus Chamblee, by shooting him with a gun or pistol; 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 thirteen years.

<p>From the City Court of Montgomery.</p> <p>Tried before the Hon. Tilos. M. Arrington.</p>

From the Circuit Court of Pike. Tried before the Hon. John P. Hubbard. The defendant in this case was indicted for the murder of Joseph Bragg, by shooting him with a gun ; and on his second trial, as shown by the present record, was convicted of manslaughter in the first degree, and sentenced to the penitentiary for the term of five years. The points decided by the court will be readily understood from the opinion, without any additional statement of facts.

From the Circuit Court of Jefferson. Tried before the ILon. S. H. Sprott. The defendant in this case, Balph Clarke, was indicted for the murder of James Leatherwood, by shooting him with a gun or pistol; and being tried on issue joined on the plea of not guilty, was found guilty of murder in the first degree, and sentenced to imprisonment in the penitentiary for life.

<p> Jndiotment for Burglary. </p> <p>1. Examination of defendant as witness.— Where several persons are jointly indicted and tried, and each avails himself of the statutory privilege of testifying as a witness (Sess. Acts 1884-5, p. 189), he thereby becomes subject to examination and cross-examination as any other witness; and each has the right to examine the others in his own behalf.</p>

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

Tried before the Hon. Jona. Haralson. This action was brought by Robert C. Carlisle, against Sim. Watts, to recover the possession of three parcels of land, particularly described, containing in all 150 acres; and was commenced on the 8th May, 1885. The cause was tried on issue joined on the plea of not guilty, and, a jury being waived, the court decided the issue in favor of the defendant.

Tried before the lion. JoiinP. Hubbard. This action was brought by Thornton & Wellborn, suing as partners, against James B. Adams, and was founded on an attachment bond, the condition of which was, “ that the said Adams shall prosecute his said attachment to effect, and pay the said Thornton & Wellborn all such costs and damages as they may sustain by reason- of the wrongful or vexatious suing out of said attachment.” The attachment was sued out on the ground that the…

Tried before the Hon. John P. Hubbard. This action was brought by Mrs. Flora A. Allen, as administratrix, to recover damages for the death of her husband, David M. Allen, alleged to have been caused by the negligence and wrongful act of the defendant corporation, its servants and agents; and was commenced on the 1st May, 1884.

From the Circuit Court of Montgomery. Tried before the IIon. John P. ÍEubbard. This action was. brought by John H. Engelhardt, against W. B. Jones and W. C. Wright, and was commenced on the 1st January, 1885.

Appisai, from the Circuit Court- of Montgomery. Tried before the Hon. John P. Hubbard. This action was brought by John II. Engelhardt against J. CA Seibs, to enforce a statutory lien on a dwelling-house in the city of Montgomery, for work done and materials furnished by plaintiff in its construction; and was commenced on the 16th August, 1884.

<p>Action for Price of Guano / Recoupment of Damages.</p> <p>1. Measure of damages, for failure or refusal to /deliver goods sold. Where the vendor of goods fails or refuses to deliver them to the purchaser, and the price has not been paid, the measure of damages to the purchaser, in an action for the breach, is the difference between the agreed price and the market price at the time and place of delivery, with interest; but this general rule does not apply, when it is shown that the purchaser can not go into the market and, by paying such difference in price, procure the desired goods.</p> <p>2. Same; profits as damages. — Profits sustained as the natural consequence of the breach or wrongful act complained of, are recoverable as a part of the damages, when not objectionable on the ground of remoteness or of uncertainty.</p> <p>3. Same. — On a salé of guano, which the seller knew was intended for use by the purchaser in raising a cotton crop on his plantation, only one-half of the stipulated quantity being delivered, and it being then too late to procure it elsewhere, the measure of damages to the purchaser is the difference in value between the cotton raised on the land on which the guano was used, and that raised on the adjoining land, of the same quality and cultivated in the same manner, on which no guano was used.</p> <p>4. Action by principal, on contract of agent. — When an agent makes a contract for the benefit of his principal, whose name is not disclosed, the principal may sue on it in his own name.</p>

Tried before the Hon. John P. Hubbard. This was an application by petition an the part of D. Stein, for a writ of manda/mus against Hon. J. T. Leeper, the probate judge of Shelby county, requiring him to issue to the petitioner a license to retail spirituors liquors in the town of Calera in said county, on his compliance with all the requisitions of the law governing the issue of such licenses.

<p>Appeal from the City Court of Mobile.</p> <p>Tried before the lion. O. J. Semmes. ,</p> <p>cited. Brooldyn v. insurance Go., 99 U. S. 362; Pennoyer v. Neff, 95 E. S. 714; Insurance Go. v. Bangs, 103 U. S. 435; Hart v. Sansom, 110 U. S. 156; Ileidritter v. Oil-cloth Go., 112 U. S. 295; Cooper v. Reynolds, 10 Wallace, 308; Tingley ■o. Bateman, 10 Mass. 343; Bates v. Railroad Go., 60 Wise. 296; 78 Ky. 250; Railroad Go. v.' Thornton, 60 Geo. 300; Wheat v. . Railroad Go., 4 Kans. 370; lawtem.ee v. Smith, 45 N II. 530 ; 1 Gray, Mass. 424; Gent/ral R R. <Js B. Go. v. Carr, 76 Ala. 388; Waples on Attachment, 227; 21 Central Law Journal, 425.</p>

Tried before the Hon. JoiinP. Hubbard. This action was brought by Poswald & Stoll, suing as partners, against Mrs. T. B. Parker, and was commenced on the 7th August, 1885. The complaint contained only the common count for the price of goods sold and delivered.

Tried before the Hon. John P. Hubbard. • The appellant in this case, F. M. Dunbar, filed his petition under oath, addressed to Hon. John B. Hubbard, the presiding judge of the second judicial circuit, asking a mandamus to Hon. T. L. Frazer, the judge of probate of Lee county, requiring him to issue to the petitioner a license to retail spirituous liquors in Opelika.

Heard before the Hof. Thos. M. Arrington. The bill in this ease was filed on the 8th July, 1885, by Louis Loeb, against Joseph McCullough and his wife, Mary A. McCullough ; and sought to foreclose a mortgage on a tract of bind,.executed by said McCullough and wife to E. Blum, and assigned by said Blum to the complainant. The mortgage, a copy of which was made an exhibit to the bill, was dated January 6th, 1874, and purported to be given for advances to make a crop.

Tried before the ITon. James E. Cobb. The appellant in this case, F. M. Dunbar, applied by petition to the presiding judge of the third judicial circuit, which circuit includes the county of Lee, asking a mandamus to the Hon. Titos. L. Frazer, the judge of probate of said county, requiring him to issue and grant to the petitioner a license to sell spirituous liquors in the town of Opelika for and during the year 1886.

Tried before the IIon. John P. Hubbard. This action was brought by M. N. Carlisle, against Thomas J. Carlisle, to recover the possession of a tract of land particularly described; and was commenced on the 27th February, 1883. The defendant disclaimed as to a part of the land,- and pleaded not guilty as to the residue; and issue was joined on that plea.

Tried before the lion. John P. Hubbard. This was an application by petition, by Mrs. Bertha Munter and others, for the supersedeas of a statutory execution against them on a forfeited claim bond, in favor of Leinkauff & Strauss, who wrere plaint'ffs in the original judgment. The court sustained a demurrer to the petition, and dismissed it; and this judgment is now assigned as error.

Appear from the Circuit Court of Colbert. Tried before the Hon. II. C. Speaice.

Tried before the Hon. H. D. Clayton. The appellants in this ease sued out an attachment on the 11th February, 1885, against L. Manasses, which was levied on a stock of goods in his possession ; and he thereupon interposed a claim to the goods as trustee for his wife, Mrs. Jacobina Manasses, made affidavit, and gave bond for the trial of the right of property.

Tried before the lion. ¥i. E. Clarke. The record in this case shows that, on the 6th December, 1884, four separate judgments were rendered by a justice of the peace, in favor of Bernard ■ Moog, “ use &c.,'” against Henry Toenes; that an execution was issued on each of these judgments, on the 6th December, and was levied by the constable, on the same day, on certain lands, in default of personal pi’operty, and notice of the levy w.as given to the defendant; that the…

Tried before the Hon. James E. Cobb. This was a trial of the right of property in and to a stock of goods, between the appellants, plaintiffs in attachment against W. T. Duke, and Yandiver & Co. and Bolling & Son as claimants. Said Duke was a merchant engaged in business at Notasnlga, and also carrying on another store at Loachapoka.

Tried before the Hon. James Aiken. This action was brought by John Schafner against the appellant, a domestic corporation, and was commenced on the 17th February, 1885.

Tried before the Hon. Tiros. M. Arrington. The appellants in this case, Oscar Wooldridge and others, suing for the use of II. W. Clark, obtained a judgment in said City Court, at the February term, 1881, for $32,293.65, against the Masonic Temple Association, a private domestic corporation; and sued out process of garnishment against George B. Holmes and others, as the debtors of said corporation.

Tried before the Hon. James Aiken. This action was commenced by attachment, sued out by W. P. Parker, on the 16th February, 1885, on the ground that the defendant, A. A. McAbee, secreted himself so that the ordinary process of law could not be served on him.

Tried before the Hon. H. C. Speake. This action was brought in the name of the State of Alabama, against Samuel D. Houston and the sureties on his official bond as tax-collector of Lawrence county; and was commenced on the 9th November, 1883. The bond was in the penal sum of $20,000, dated and approved August 19th, 1882, and conditioned as follows: “The condition of the above obligation is such, that whereas the above-bound S. 1).

Tried before the Hon. James E. Cobb. This action was brought by H. A. Wilson against the appellant, a domestic corporation, claiming $85 “ as damages for certain goods,” which were particularly described, “ received by the South and North Alabama Railroad Company as a common carrier, to be delivered to the plaintiff at Lomax, in the county of Chilton, State of Alabama, for a reward ; which the South and North Ala.

Appear from the Circuit Court of Chambers. Tried before the Hon. James E. Cobb. This action was brought originally in the names of Colon I). Baker and his wife, Gilley L. Baker, against Henry W. Williamson-, and was commenced on the 29th October, 1883; but the name of Mrs. Baker was afterwards struck out by amendment.

Tried before the Hon. O. J. Semmes. This action was brought by Mrs. Marcia II. Turner, suing as the executrix of the last will and testament of her deceased husband, Jarvis Turner, against Martin C. Robbins and others; and was commenced on 20th May, 1885.

Tried before the Hon. James Aiken. This action was brought by Henry Meyer, against the appellant corporation, as a common carrier, to recover damages for the loss of certain goods delivered by him to the defendant, at Cullman, to be carried and delivered to him at Bluffton, in Indiana. On the evidence adduced, the defendant requested seven charges in writing to the jury, each of which the court refused to give.

Tried before the IIou. John P. Hubbard. This action was brought by Robert Watson, against Randolph Kent, to recover the possession of three parcels of land, each containing forty acres, subdivisions of section five (5), in township eleven (11), range nineteen (19); and was commenced on the 8th September, 1884. The defendant pleaded not guilty, and the cause was tried on issue joined on that plea.

Tried before the. Hon. II. D. Clayton. This action was brought by John T. Crim, against Allen Nelms, tenant in possession, to recover a tract of land containing eighty acres; and was commenced on 18th October, 1881. In the marginal statement of the parties’ names, in the several minute-entries, the name of J. J. Yarbrongh, as landlord, is entered, and he seems to have been admitted to defend in that capacity ; but the fact is nowhere stated in the record.