Volume 79 — Alabama Reports

From the City Court of Mobile. Tried before the Hon. O. J. Semmes.

From the Circuit Court of Cherokee. Tried before the Hon. James Aiken. The defendant in this case, Peter Anderson, a freed man, was indicted for the murder of Tom Davenport, another freedman, by shooting him with a gun ; was tried on issue joined on the plea of not guilty, convicted of murder in the first degree, and sentenced to the penitentiary for life.

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

From the City Court of Mobile. Tried before the Hon. O. J. Semmes. The defendant in this case was indicted for the seduction of Katie Nicholas, an unmarried woman; and being tried on issue joined in the plea of not guilty, was convicted, and sentenced to imprisonment in the penitentiary for the term of fifteen months.

Prom the Circuit Court of Clarke. Tried before the lion. Wm. E. Clarke.

From the Circuit Court of Calhoun. Tried before the Hon. Leroy F. Box. The defendant in this case, M. O. Smith, was indicted for an assault on O. C. Latham, with the intent to murder him ; and was tried on issue joined on the plea of not guilty.

From the Circuit Court of Etowah. Tried before the lion. James Aiken. The defendant in this case, James Jones, was indicted for an assault with a pistol on one William Croft, with the intent to murder him; was tried on issue joined on the plea of not guilty, found guilty as charged in the indictment, and sentenced to hard labor for the county for the term of two years.

From the City Court of Birmingham. Tried before the Hon. II.

From the City Court of Mobile. Tried before the Hon. O. J. Semmes. The defendant in this case, Noah Harrison (or Harris), was indicted for the murder of Abe (of Adolph) Anthony, by shooting him with a 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 ten years, as on the former trial. — 78 Ala. 5.

Prom the Circuit Court of Cherokee. Tried before the lion. James Aiken.

From the City Court of Montgomery. Tried before the lion. Tiios. M. Arrington. The defendant in this case was indicted for the forgery of a receipt, to which the name of W. Y. Bell was signed, and which was in these words’: “ $220.18.

From the City Court of Montgomery. Tried before the Hon. Ti-iós. M. Arrington. The indictment in this case contained two counts, the first charging that the defendant “ willfully and knowingly resisted R. E. Morrill, a special constable, while executing a warrant of arrest issued by D. II.

From the Circuit Court of Etowah. Tried before the Hon. James Aiken. The defendant in this case, James F. Henry, was indicted for an assault and battery on James R. Nowlin, and, on being tried on issue joined on the plea of not guilty, was convicted, and fined $50. “ On the trial,” as the bill of exceptions states, “the State introduced James R. Nowlin as a witness, who testified that, on the morning before the difficulty in the evening, he went to the store of Col. Sam.

Clair. Tried before the Hon. Leroy F. Box. The record in this case shows these facts : At the Spring term of said court, 1881, A. L. Posey was indicted for grand larceny, and was arrested under a capias.

From the Circuit Court of Cherokee. Tried before the Hon. James Aiken. • The indictment in this case charged, in a single count, that the defendant, with the intent to steal, broke into and entered a. railroad depot, the property of the “East Tennessee, Yirginia & Georgia Railroad Company, a body corporate incorporated under the laws of the State of Tennessee.” A trial being had, as the bill of exceptions shows, on issue joined on the plea of not guilty, the State proved the…

From the Circuit Court of Jefferson. Tried before the Hon. S. II. Sprott.

From the City Court of Birmingham. Tried before the Hon. H. A. Sharpe.

From the Circuit Court of Shelby. Tried before the lion. S. II. Srrott. The defendant in this caso was indicted for grand larceny, and the indictment also contained a count for receiving stolen goods.

From the Circuit Court of Calhoun. Tried before the Hon. James Aiken. The indictment in this ease contained six counts.

Tried before the Hon. James E. Cobb. The record shows that Henry Holifield, on preliminary investigation before a justice of the peace, under a charge of burglary, “ was ordered to be held to answer said offense, and the sheriff was ordered to take and approve bond, in the sum of $200, in all respects as provided and required by law ;” and that a bond was thereupon taken from him by the sheriff, with Lewis Holifield and J. M. Rogers as sureties, which was dated and approved…

From the City Court of Birmingham. Tried before the Hon. H. A. Siiarpe.

Heard before the Hon. John A. Foster. The original bill in this case was filed on the 24th of July, 1883, by Mrs. Augusta Lohman, as the complainant described herself, though she was then the wife of Peter Kraft, against Mrs. Louisa Bolman; and sought the foreclosure of a mortgage on a certain lot in Mobile. The mortgage, a copy of which was made an exhibit to the bill, was dated December 1st, 1881, and was duly acknowledged before a notary public on the day of its date.

Arpeal from the Chancery Court of Mobile. Heard before the Hon. John A. Foster. The bill' in this case was filed on the 5th October, 1885, in the name of Mobile county as complainant, against Elisha B. Lott, tax-collector of said county for many years, and William Turner, William Otis, Enfus Dane, Charles Earley, and Thomas Conboy, sureties on his several official bonds; there being, also, on each bond, several other sureties, who were not sued.

Heard before the lion. John A. Foster. The bill in this case was filed on the 9th October, 1883, by Henry Van Beil, against Beates Fordney and his wife; and sought to foreclose a mortgage on certain lands in Mobile, ■which the defendants had executed to one Nathan Van Beil, by whom it was assigned, for valuable consideration, to the complainant.

Tried before the lion. O. J. Semmes. This action was brought by Lawrence Posey against Fred Hall, to recover damages for personal injuries sustained by plaintiff while feeding a circular saw in the defendant’s. employment; and was commenced on the 16th March, 1885. The complaint contained three counts, in substance as follows: 1.

Tried before the-lion. O. J. Semmes. , This action was brought by Wm. H. Sheffield, against Wra. A. Shields, and was.commenced on the 15th June, 1885.

Tried before Hon. John P. Hurraed. This was an application by petition, by W. J. Blan, for a mandamus directed to M. O. Burke, auditor of public accounts, requiring that officer to draw his warrant on the State treasurer, in favor of the petitioner, for §193, a balance claimed to be due to the petitioner as compensation for printing and publishing, under agreement between him, the tax-collector and the probate judge of Lowndes county, during the year 1884, notices to…

Tried before the Hon. ¥i. E. Clarke. This action was brought by W. E. Richardson against Letitia Carrington, to reco.ver the possession of a city lot in Mobile, particularly described in the complaint; and was commenced on the 16th January, 1885.

Heard before the lion. John A. Foster. The bill in this case was filed on the 7th December, 1883, by the several appellants, as creditors of Sigmund Vogel, deceased, against Mrs. Caroline Sehonfeld, Henry Bernstein, and others; and sought, principally, to set aside a conveyance of his stock of goods made by said Vogel to Mrs. Sehonfeld and said Bernstein, on the ground that it was fraudulent as against the complainants and other creditors, to make the said defendants account…

Heard before the Hon. John A. Foster. The bill in this case was filed on the 20th March, 1885, by Edward F. Hines, as the administrator of the… Held: that the claim of homestead exemption must prevail against the lien acquired by the filing of the bill and service of process in this case, and therefore dismissed the bill, on final hearing on pleadings and proof; and his decree is now assigned as error. -By the filing of his bill, and the service of process under it, the…

Heard before the Hon. John A. Foster. The original bill in this case was filed on the 29th August, 1884, by Winston Jones, as assignee, or… Held: as hereinafter stated.” 2. The Dannei' Land and Lumber Company, a private corporation under the laws of Alabama, was largely engaged in the manufacture and shipment of lumber and sawn timber for English and European markets; and drew sundry bills of exchange on George Shadboldt & Son, wood-brokers, residing and doing business in…

Tried before the Hod. ¥i. E. Clarice. This actioD was brought by L. G-. Peters agaiust D. J. Bed-sole, and was commenced on the 16th September, 1885.

Heard before the lion. John A. Foster. The bill in this case was filed by William H. Roper and others, members of the Stone Street Baptist Church (colored) in Mobile, and also of two charitable associations organized among the members of said church; against Benjamin Burke, the pastor of the church, Hal Campbell and others, trustees of said associations, and other members who adhered to them, and against the partners composing the banking-house of Thos.

<p>Appeal from the Chancery Court of Mobile.,</p> <p>Heard before the Hon. John. A.. Foster.</p>

Heard before the Hon. John A. EostIsr. The bill in this case was filed on the 21st January, 1885, by Farley, Spear & Co., a partnership doing business as bankers in the city of Montgomery, and claiming to be creditors of the late firm of A. & B. Moog, a mercantile partnership doing business as wholesale grocers and liquor-dealers in the city of Mobile; against Bernard Moog, the surviving partner of said firm, the sheriff of Mobile county, Marcus Lyons and others, creditors…

O. J. Sbmmes. This action was brought by the Lane & Bodley Company, a corporation created under the laws of Ohio, against the Danner Land & Lumber Company, a domestic corporation, the Bank of Mobile, and Winston Jones, as assignee of said bank;‘and was commenced on the 6th January, 1885.

Tried before the Hon. John P. PIubbard. This action was brought by S. PI. Thornton, against Strauss & Steinhardt as partners, and was commenced on the 19th March, 1884. The complaint contained but a single count, which claimed $150 as money had and received. The only plea was the general issue.

Heard before the Hon. John A. Poster. The bill in this case was filed on the 29th September, 1885, by Mark W. Dunn, against William E. Richardson ; and sought to redeem certain lots of land in Mobile, which had been sold under .execution against the complainant, and purchased by the defendant.

Heard before the Hon. Thos. Cobbs. The bill in this case was filed on the 1st of July, 1881, by M. P. Levy & Co., Leinkanff The complainants’ debts aggregated nearly $5,000, and were contracted for goods sold and delivered by them respectively, prior to March, 1881, to said Williams & Brasfield.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on' the 18th day of February, 1884, by the Georgia Pacific Railroad Company, a corporation chartered under the laws of Alabama, against M. D. Wilks and J. C. Wilks, his wife; and sought the specific performance of a contract, which, as reduced to writing, and signed by the defendants, was dated March 12th, 1880, and in these words: . “ State of Alabama, 1 Know all men by these presents, that County of…

Heard before the Hon. John A. Foster. These two cases are branches of the case which was before this court at its last term.— Farris db McCurdy v. Dudley, 78 Ala. 124.

Heard before the Hon. John A. Foster. The bill iu this case was filed on the 21st February, 1882, by Mrs. Azenath A. Ware, againstL. Gresham, Thos. C. Bingham, and Robert Y. Ware, and sought, principally, to redeem a house and lot in the city of Montgomery, which the complainant had mortgaged to said Gresham.

Tried before the Hon. James E. Cobb. This action was commenced on the 3d February, 1883, by an original attachment, sued out in the name of the State, against Ered.

Tried before the Hon. John P. IIobbaet). This action was brought by John W. Hughes and the children of Mason Harwell, deceased, against Pelham J. Anderson, and was commenced on the 19th May, 1883. The lands sued for consisted of three lots, Nos. 2, 6, and 7, of block No. 1, of the “ Peacock track ” of land, adjoining the city of Montgomery on the south-west.

Tried before the Hon. IT. C. Speake. This action was brought by Francis M. Deaver, against the appellant, a foreign corporation operating the Memphis and Charleston railroad under a lease, to recover damages on account of injuries to a flock of sheep belonging to plaintiff, about fifteen of which were killed, and ten more seriously injured, by a train of the defendant’s cars; and was commenced on the 1st August, 1883.

Tried before the Hon. James E. Cobb. This action was brought by Robert Carter against W. L. Chambers, to recover damages for personal injuries sustained by plaintiff by being run over, on a public street in the city of Montgomery, by the horses attached to the defendant’s private carriage, which was driven at the time by the defendant’s servant; and was commenced on the 18th May, 1885.

Tried before the Hon. Jambs E. Cobb. These two cases were argued and submitted together, involving substantial^ the same points; but the actions were commenced on different… Held: in its ruling on the demurrer to the 8th plea, whilst afterwards excluding the evidence offered in support of it. If the plea was defective, the demurrer to it ought to have been sustained ; but, having been held sufficient, evidence supporting it can not be excluded.—Mudge v. Treat, 57 Ala. 1.

<p>Appeal from the Chancery Court of Mobile.</p> <p>Heard before the Hon. John A. Foster.</p> <p>The hill in this case was filed on the 12th July, 1884, hy Bernard Moog individually, and as the surviving partner of the late firm of A. & B. Moog, claiming to be a creditor of Owen Farley, against the said Owen Farley and his two brothers, Bryant and John E. Farley ; and sought to set aside, on the ground of fraud, several conveyances of property to said Bryant and John E. Farley, and to subject the property to the satisfaction of the complainant’s debt against said Owen Farley. The conveyances, copies of which were made exhibits to the bill, were four in number: 1st, a conveyance of said Owen Farley’s entire stock of groceries to John E. Farley, which was dated January 10th, 1884, and recited a consideration of $6,000 paid, part of a larger indebtedness ; 2d, a conveyance of certain real estate by said Owen to Bryant Farley, which was also dated the 10th January, 1884, and recited the payment of $2,700 as its consideration ; 3d, a conveyance of certain real estate by said Owen to John E. Farley, which was dated the 6th November,-1883, but was not filed for record until the 11th January, 1884, and which recited the payment of $100 as its consideration ; and, 4th, a conveyance of certain real estate by John F. Williams to said John E. Farley, which was dated March 8th, 1884, and recited the payment of $3,750 as its consideration. As to the conveyance last mentioned, the bill sought to subject the property to the satisfaction of the complainant’s debt, on the ground that the purchase was made for the benefit of said Owen Farley, and the purchase-money paid by him ; and as to the others, on the ground that the property was conveyed by said Owen in fraud of his creditors, he being then insolvent, that the recited considerations were fictitious and simulated, and that the grantees knowingly participated in the fraud of said Owen. The complainant’s debt was evidenced by several promissory notes which said Owen Farley had executed to A. & B. Moog, or on which they had become accommodation indorsers for him, dated and maturing on different days between October, 1883, and January, 1884, aggregating about $3,000; and it was alleged that he owed other debts, and that the said conveyances, with others not attacked in this suit, conveyed all of his property.' Answers were filed by each of the defendants, denying the charges of fraud, and asserting the validity of the several conveyances; stating also, in answer to interrogatories, the particular consideration of each, and Bryant and John E. Farley each denying their knowledge of the insolvency of said Owen. On final hearing, on pleadings and proof, the chancellor dismissed the bill; and his decree is now assigned as error.</p> <p>The conveyances sought to be set aside were made by an insolvent debtor to his two brothers, and conveyed substantially all of his property ; and one of these brothers had, for fifteen years, had the entire management and control of the grantor’s store, if indeed he was not a partner. The existence of the complainant’s debt at the time these conveyances were executed being shown, the onus was on the grantees to prove the bona fides of the recited considerations, and to explain all the badges of fraud. — Pickett v. Pipkin, 64 Ala. 524; Harrell v. Whitman, 61 Ala. 278; Hubbard v. Allen, 59 Ala. 296. The evidence clearly establishes a deliberate scheme on the part of Owen Farley, he being insolvent, to hinder, delay!- and defraud his creditors, by disposing of his property, and putting it beyond their reach; and the material question is, whether his two brothers did not know his condition, and knowingly aid in the consummation of his plans.</p> <p>(1.) As to the conveyance of the stock of goods, the attempted explanation of the parties is wholly improbable; and insufficient. The conduct of the parties, during their long business connection, is more reconcilable with the existence of a partnership between the two brothers, than with the theory of an agency, or clerkship. The name of John E. Farley no where appears on the books; no account was kept with or against him; no itemized account was ever made out between them, and they admit that, at the time of the alleged settlement, they did not know exactly how the account stood between them. This is not sufficient to sustain the settlement, as the consideration of the sale. — Hamilton v. Blackwell, 60 Ala. 547; Hubbard v. Allen, 59 Ala. 300 ; Donegan v. Davis, 66 Ala. 365 ; 8 Dana, 103; 13 Wise. 283; 84 Penn. St. 253; Freem: Ch. 435. In the purchase of some of these goods by Owen Farley, when he was insolvent, he perpetrated a fraud on the vendors; and John E. Farley, having knowledge of these facts, actively participated in the fraud; and therefore, his purchase being fraudulent as to a part of the property, the entire transaction is fraudulent and void.' — Tatum v. Hunter c& Thomas, 14 Ala. 557; Wiley, Banks dé Go. v. Knight, 27 Ala. 349 ; Gordon, Rankin da'Go. v. Tweedy, 71 Ala. 213.</p> <p>(2.) As to the lands purchased from Mrs. Thompson: The consideration recited in the deed from Owen to John E. is $100, while the evidence shows that the property was worth $475; and the deed was not put upon record for several months, and not until Owen had disposed of the rest of his property. On these facts, the sale was for a grossly inadequate price, and therefore void as to creditors. In avoidance of this, it is said by John E. that his brother bought the property for him, and charged him in his account with $475 as the price paid; that he did not read the deed, did not know the consideration recited, and failed to record it from mere oversight. But there is no contemporaneous evidence as to the charge in the account, and the parties testify that no account was kept between them ; and a party will not be heard to say that he did not read a deed.— Goetter, Weil dé Go. v. Pickett, 61 Ala. 387. As to the purchase of adjoining lands by John E., the question arises, Where' did he get the money to pay for it? It could not have been paid for out of the $15 per month, his only source of revenue from the store, for which ho claims to have accounted on settlement with Owen ; it could not have been borrowed from his mother, who had no money to lend ; and it would be strange for him to be borrowing money from his mother, when his brother, solvent as he believed, owed him $8,000. If the purchase-money was paid by John E. with his own funds, it must have been with moneys which he drew from the business, or on account of his wages as clerk; and this contradicts his story as to the consideration paid for the stock of goods.</p> <p>(3.) The same suggestions apply to the purchase of the property on Government street.</p> <p>(4.) As to the sale to Bryant Farley: It is certain that $135 was paid by Bryant to Owen Farley after the 11th January, when Bryant knew that Owen had sold out all his property; and for this sum, at least, Bryant is liable to the complainants. It is certain, too, that on the 8th January, when Bryant paid Owen $1,300, he was charged with knowledge of facts which, if followed up, would have led to the discovery of Owen’s insolvent condition and fraudulent intent. Nor is it shown that this money was used by Owen in the payment of honest debts.</p> <p>submitted a printed- argument, in which they analyzed the evidence as to each of the transactions assailed by the bill, insisting that each was supported by a sufficient consideration ; aud cited the following'authorities: Bump on Fraud. Conveyances, 221-23; Dewey v. Littlejohn, 2 Ired. Eq. 495; Chamberlain v. Dorrance, 69 Ala. 40; Hubbard v. Allen, 59 Ala. 301; Bradley Co. v. Ragsdale, 64 Ala. 558; Eskridge v. Abrams, 61 Ala. 134; Clements v. Moore, 6 Wallace, 312; Levy v. Williams, at last term, ante, 171; Warren & Burch v. Jones, 68 Ala. 449.</p>

From the County of Court of Macon. Tried before the Hon. P. S. Holt.

From the Circuit Court of Lee. Tried before the Hon. H. L). Clayton.

From the Circuit Court of Chambers. Tried before the Hon. H. C. Speake. The defendant in this case, Jack Wright, was indicted for the forgery of a written instrument, which purported to be signed by B. T. Smith, directed to W. C. Bledsoe, and which was in these words: “Send the money by-Jack; it will save exchange and post-office order.

From, the Circuit Court of Lee. Tried before the Hon. H. D. Olatton. The defendant in this case was indicted for carrying concealed weapons, and pleaded not guilty, on which plea issue was joined.

From the Circuit Court of Lee. Tried before the Hon. H. D. Clayton. The indictment in this case was returned into court on the 12th November, 1884, and charged that the defendant carried a pistol -concealed about his person.

From the County Court of Macon. Tried before the Hon. P. S. Holt. This case originated in the Circuit Court, and was transferred to the County Court.

<p> Indictment for Illegal Sale of Spirituous liquors. </p> <p>1. Constituents of offense. — Under an indictment fo.r selling spirituous liquors without a license, and contrary to law (Code, § 4204; Sess Acts 1878-9, p. 71), a conviction can not be had against a person who had no interest in the liquor sold, nor in the money paid for it, and who acted only as the agent or friend of the purchaser in procuring the liquor.</p>

From the County Court of Macon. Tried before the P. S. Holt.

Application by petition, in the name of the City Council of Montgomery, for the writ of certiorari, to bring before this court for review the proceedings had before Hon. F. C. Bandolpi-i, the judge of probate of Montgomery county, discharging one Peter Bandy from the custody of the municipal authorities of the city of Montgomery, on habeas corpus. The opinion states the facts.

From the Circuit Court of. Tallapoosa. Tried before the Hon. James E. Cobb. The indictment in this case charged, in a single count, that the defendant “ sold vinous or spirituous liquors, without license, and contrary to law.” A trial was had on issue joined on the plea of not guilty, which resulted in a verdict and judgment against the defendant.

From the Circuit Court of Chilton. Tried before the Hon. James E. Cobb.

Prom the Circuit Court of Barbour. Tried before the Hon. John M. Chilton.

From the Circuit Court of Shelby. Tried before the ILon. S. H. Sprott. The defendant in this case was indicted for an assault and battery on one H. A. Davis, and was tried on issue joined on the plea of not guilty.

Tried before the lion. ¥m. E. Clarke. This was a motion for the re-taxation of costs, made by the appellants, who were plaintiffs in an action against James Kaver, and were unsuccessful; the motion specifying the names of eight witnesses, who were alleged to have been summoned by the defendant, but were not examined on the trial, nor any reason shown for having them summoned, “ On the hearing of the motion,” as the bill of exceptions states,” there was evidence showing that…

The record does not show the name of the presiding judge. This action was brought by Odyle Eslava against Richard'E. Jones, clerk of said Circuit Court, to recover damages on account of his careless, negligent and wrongful act, as alleged, in issuing a writ of venditioni exponas, under which certain lands, claimed by the plaintiff as a homestead exemption, were sold.

Heard before the Hon. Thos. Cobbs. The bill in this case was filed on the 20th December, 1883, by David H. Williams, against A. W. McMahon and John Éogers; and sought, principally, to enjoin the erection and use by the defendants of a ware-house and landing on certain premises owned and occupied by them, and to establish the complainant in the exclusive right to such ware-house and landing privileges,.

<p> Action on Seaman’s Advance Note, and for Money Nad and Received. </p> <p>1. Nonsuit; what is revisable. — When a nonsuit is taken on account of adverse rulings on evidence, only those rulings, being duly excepted to (Code, § 3112), are revisable on error, and rulings on demurrer can not be considered.</p> <p>2. When action lies for money had and received. — An action lies for money had and received, whenever the defendant has in his hands money belonging of right to the plaintiff, and privity of contract is not necessary to support it.</p> <p>3. Act of Congress (U. S. Rev. Stat., §§ 4632, 4634) regulating transfer of seamen’s advance notes. — The provisions of the act of Congress of June 7th, 1872, regulating the transfer of notes given for seamen’s wages in advance (U. S. Bev. Stat., §§ 4532, 4534), have no application to seamen employed in foreign vessels.</p> <p>4. Estoppel against denying execution of note. — When money is placed in the hands of a person to pay a note or draft at maturity, and he refuses to pay on demand by the holder, proof of the execution of the note is not necessary in an action against him, since he is estopped from denying its execution.</p>

Tried before the Hon. Jona. Haralson. This action was brought by Walker Emerson, a minor suing by his next friend, against Emeline Waugh, to recover wages due for personal services rendered by him for defendant, in and about the cultivation of a crop and other work during the year 1885; and was commenced by attachment, sued out on the 29th October, 1885.

Tried before the TIon. S. H. Sprott, This action was brought by John M. Fullerton against the appellant, a corporation doing business in this State, to recover damages for the loss of a cow, which was alleged to have been killed by the negligence of the defendant’s servants; and was commenced in a justice’s court, on the 24th January, 1885. In the Circuit Court, on appeal, a trial was had on issue joined on the pleas of not guilty, set-off, and recoupment.

Tried before the Hon. John P. Hubbard. This action was brought in the name of Conecuh County, against C. S. James, S. E. James, and J. P. Howard ; was commenced on the 14th May, 1884, and was founded on a penal bond executed by said defendants, payable to the plaintiff, which was dated February 23d, 1880, and conditioned as follows: “ Whereas the said O. S. James did, on the 6th day of December, 1879, contract to build, and did build, for the use of Conecuh county, a bridge…

Tried before the Hon. H. A. Sharpe. This action was brought by Davis & Davis, suing as partners, against the appellant, a private corporation, owning and operating a railroad between its mines and the city of Birmingham, to recover damages for the loss of a horse, which was killed at a crossing on the defendant’s track, just outside the corporate limits of Birmingham; and was commenced on the 25th May, 1885.

From the City Court of Montgomery. Tried before the Hon. Tiios. M. Arrington. These two actions were brought by the appellant, a private corporation chartered under .the laws of Pennsylvania, and were commenced on the 21st September, 1885.

Tried before the Hon, James E. Cobb. This action was brought b.y Louisa Lockhart, an infant, suing by her next friend, against the appellant as a common carrier, to recover damages on account of personal injuries; and was commenced on the 2d January, 1884.

Heard before the Hon. John A. Foster. The bill in this case was filed, by leave of the court, on the 1st March, 1884, by William H. Banks and George P. Swift & Son, a partnership, against Mrs. Josephine Long, the wife of James W. Long; and sought to review and reverse a decree rendered in a former suit, in which Mrs. Long was the complainant, and her husband, said W. H. Banks and Geo. P. Swift & Son were the defendants.

Heard before the Hon. John. A. Foster. The bill in this case was filed on the 4th March, 1885, against Peter Kraft, by his wife, who called herself Augusta Lohman, and who sought to remove him from the trusteeship of her statutory estate, and to enjoin him from interfering in any manner with her property.

Tried before the Hon. John P. Hubbard. This action was brought by Williamson Harrison against Strauss & Steinliardt as partners, to recover damages for the defendants’ alleged wrongful act in receiving and selling six bales of cotton, on which plaintiff claimed a statutory lien as landlord, of which lien they had notice; and was commenced on the 24th October, 1885.

Tried before the Hon. IT. A. Siiarpe. This action was brought by Elijah Whitman against the appellant, a corporation operating tbe South and North Alabama railroad, to recover damages for personal injuries sustained in being ejected by violence from one of the defendant’s passenger trains; and was commenced on the 5th January, 1885. The cause was tried on issue joined on the plea of not guilty, and resulted in a verdict and judgment for plaintiff, for $225.

Tried before the ITon. Lekoy F. Box. This action of ejectment was brought to recover certain lands, containing 640 acres in all, being subdivisions of three separate sections. The notice, accompanying the declaration, was dated May 10th, 1881, but was executed, as shown by the sheriff’s return, on the 9th June, 1881.

Tried before the Hon. H. A. Sharpe. This action was brought byAbijahE. Fields, against Thomas Smith, to recover damages for the conversion of nine bales of cotton; and was commenced on the 16th April, 1885. The complaint contained two counts in trover, and a special count in case; and the only plea was “ the general issue, in short by consent, with leave to give in evidence any special matter which would be good if specially pleaded.

Tried before the Hon. John P. Hubbard. This action was brought by the Montgomery and Eufaula Bailway Company, a domestic corporation, against Chambers & Abercrombie as partners, and the Montgomery Gas-Light Company, a private corporation, to recover damages'on account of injuries to a train of cars belonging to plaintiff, caused by a collision with several empty cars standing on a side-track, and alleged to have been caused by the negligence of the defendants’ servants in…

Tried before the Hon. John P. Hubbard. This action was brought by Henry S. Zeigler, against Henry C. Clark, to recover damages for a breach of the covenants of warranty contained in a deed to a tract of land, which said Clark had sold and conveyed to the plaintiff; and was commenced on the 25th October, 1884.

Heard before the Hon. Thos. N. Arrington. The bill in this ease was filed on the 5th November, 1884, by Harry Hunter, against Frank Bibb and Ilarison-Bibb, of whom the former was a minor; and sought to establish a trust, in favor of the complainant, in a tract .of land containing one hundred and sixty acres, the legal title to which was in the defendants.

Tried before the lion. Henry O. Speaice. This action was brought by Edward IT. Moore and others, against Charles Beagan,to recover certain premises, particularly described in the complaint; and was commenced on the 5th”April, 1876. Mrs. Harriet E. Coltart intervened as owner of the premises, and was admitted to defend ; and she thereupon pleaded not guilty7, and entered a suggestion of adverse possession for three years and the erection of valuable improvements.

From the Circuit Court of Chilton, Tried before the Hon. James E. Cobb.

Heard before the Hon. 8. K. McSpadden. The bill in this case was filed on the 2d January, 1886, by E. Y. Jones, against Alfred J. Massey; and sought' to set aside conveyances of his property by said Massey, alleged to have been made with the intent to defraud the complainant and other creditors.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 5th August, 1885, by Mrs. May F. Westmoreland (formerly Lane) and her husband, Theodore Westmoreland, against Mrs. Martha N. Lane and others; and sought to foreclose a mortgage, a copy of which was made an exhibit to the bill. The mortgage was dated June 16th, 1882, and was signed by all of the defendants.

Tried before the Hon. Henry O. Speaks. This action was brought by the appellants, suing as partners, against the Sheffield Land, Iron & Coal Company, a private domestic corporation; and was commenced on the 25th August, 1884.

Heard before the lion. S. 1L MoSpadden. The bill in this ease was filed on the 22d August, 1885, by Luty W. and Henry S. Hardin, infant children of Ben jamin L. and Anne E. Hardin, deceased, suing by their next friend, against Robert L. Pulley, as the surety on the official bond of Robert Nance, deceased, as the administrator of said Ben jamin L. Hardin’s estate ; and sought relief as follows: «1st, to charge said Pulley, as surety, with the amount of exemptions of personal…

Tried before the Hon. IT. D. Clayton. This action was brought by Anne E. Hart, against H. M. Comer, to recover an undivided one-eighth interest in a house and lot in the town of Eufaula; and was commenced on the 10th October, 1883. The defendant pleaded, in short by consent, not guilty, the statute of limitations of ten years, and adverse possession for three years; and the cause was tried on issue joined on these pleas.

Tried before the lion. il. A. SharpeI This action was brought by McGuire & Co., suing as partners, against the appellant as a common carrier, to recover damages for the loss of certain goods, which had been forwarded from Louisville, Kentucky, by the defendant’s railroad, consigned to the plaintiffs at Birmingham ; and which were destroyed by fire, on the night of November 14th, 1884, while in the defendant’s depot at Birmingham, which was also destroyed by the fire.

Tried before the Hon. James Aiken. This action was brought by Jackson D. Wilhite, against William S. Speakman, to recover $500, alleged to be five times the value of plaintiff’s horse, which was killed by defendant while trespasssing in his field ; and was commenced on the 19th of September, 1883. The cause was tried on issue joined on the plea of not guilty, and resulted, under the rulings of the court, in a verdict and judgment for the defendant.

Heard before the Hon. Tiiomas Cobbs. The bill in this case was filed on the 17th March, 1885, by Enoch Bishop, against Jesse E. Murphree; and prayed the reformation of a conveyance of lands executed by said Murphree to the complainant, on the ground that the lands intended to be conveyed were not correctly described in the deed, and an injunction of a judgment at law in an action of unlawful detainer, which said Murphree had recovered against the complainant for the lands.

Tried before the Hon. James E. Cobb. This action was brought by Freeman & Bynum, suing as late partners, against Lewis G-.

Heard before the Hon. Thomas Cobbs. The bill iu this case was filed on the 29th of September, 1881, by J. J. Rose, claiming to be a creditor of the late partnership of Gnnn & Watts, which was composed of Joseph E. Gnnn and W. T. Watts, against the personal representatives and heirs of said Gunn and Watts, with other persons: and sought to enforce payment of the complainant’s debt out of certain moneys and property iu the hands of the defendants, which was claimed to be…

Tried before the Hon. John P. Hubbard. This action was brought by E. Watson, as the administrator of the estate of R. E. Jordan, deceased, against J. A. Prestwood and A. J. Fletcher, to recover a tract of land containing 640 acres, which was described as the sixteenth section of township three (3), range fifteen (15); and was commenced on the 12th January, 1885.

Heard before the Hon. S. K. McSpauden. The bill in this case was filed on the 2d June, 1885, in the name of Chambers county, the judge of probate, and the several county commissioners, in their official capacity, against Joseph A. Holifield, as the executor of the last will and testament of Mrs. Mary F. McLemore, deceased, and sought to enforce the payment of a legacy.

Heard before the Hon. S. K. MoSpadden. The bill in this case was filed on the 27th March, 1886, by Joseph A. Holifield, as the executor of the last will and testament of Mrs. Mary F. McLemore, deceased, against Lucy A. Johnson, who was the residuary legatee under the will; and asked the instructions of the court as to the validity of a bequest contained in the will, and the proper disposition of moneys in his hands arising from the sale of real estate.

Tried before the Hon. Leroy F. Box. This action was brought by John ~W. Knowles, against Alex. M. Steed and his wife; and was commenced by attachment, sued out before a justice of the peace on the 29th November, 1880.

<p>Action against Railroad Company, foo' Damages on account of Personal Injuries.</p> <p>1. Error without injury. — The rule established by the later decisions of this court is, that the presumption of injury from error is repelled when, on the whole record, the court can see clearly and satisfactorily that no injury resulted from the error.</p> <p>2. Same. — On appeal by the plaintiff below, in an action against a railroad company for damages on account of personal injuries, the plaintiff having recovered a judgment on verdict, and the rule as to the measure of damages having been correctly stated to the jury, other charges given as to the legal liability of the defendant under the facts in evidence, if erroneous, are not ground of reversal.</p>

<p>Appeal from the Circuit Court of St. Clair.</p> <p>Motion to re-tax costs on appeal in this coxirt.</p>

Heard before Hon. Thomas Cobbs. The original bill in tliis case was filed on the 14th November, 1883, by Joseph IT. Sanders, against Samuel IT. and W. S. Askew, brothers engaged in the mercantile business as partners ; and sought to set aside a sale of certain lands under a mortgage executed by the complainant to the defendants, at which they became the purchasers, and for an account and redemption.

<p>Appeal from the City Court of Birmingham.</p> <p>Tried before the lion. H. A. Sharpe.</p>

Tried before the Hon. Henry O. Spbake. This action was brought by Sallie Bibb, against Porter Bibb and others, to recover certain lands, particularly described in the complaint; and was commenced on the 23d February, 1885. Each of the defendants pleaded not guilty, as to the particular- part of the lands which he claimed, and entered a disclaimer as to the residue; and the cause was tried on issne joined on this plea.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 26th February, 1885, by George W. Barker against B. L. Flowers; and sought the foreclosure of a mortgage on a tract of land. The mortgage, a copy of which was made an exhibit to the bill, was dated the 2Sth December, 1883, and purported to secure the payment of a promissory note for $1,319.05, which was of even date with the mortgage, and payable on the 1st January, 1885.

Tried before the lion. Leroy F. Box. This action was brought by Alex. M. Steed against John S. Knowles, to recover damages for a malicious’prosecution ; and was commenced on the 16th January, 1882. The defendant pleaded not guilty, and the cause was tried on issue joined on that plea. At the instance of the defendant, the court gave nineteen charges to the jury, to each of which the plaintiff excepted ; and these charges are here assigned as error.

Tried before the Hon. S. H. Sprott. This action was brought by H. O. [Reynolds against Frank E. King, and was commenced on the 31st July, 1878.

Heard before the Hon. Thomas Cobbs. The original bill in this case was filed on the 11th January, 1882, by William Gilmer, against W. K. Wallace, and H. C. Spealie; and sought to enjoin a sale of certain lands by said Speake, as trustee under a deed of trust executed by the complainant to secure a debt which he owed to said Wallace, and to have satisfaction of the deed entered of record, on the ground that the debt was paid and satisfied; or, if any thing should be yet due,…

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 19th day of March, 1886, by theBirmingham StreetRailway Company, a private corporation, against the Birmingham and Pratt Mines Street Railway Company, also a private corporation, and the several persons composing it; and sought to enjoin and restrain the defendants from attempting to operate or construct a street railway on “Eighteenth street” and “Avenue B South” in the city of Birmingham, or…

Tried before the lion. S. H. Spjrott. This action was brought by tire appellant, a private corporation chartered under the laws of New York, against James B. Jones, to recover a printing-press, with damages for its detention; and was commenced on the 4th February, 1886.

Tried before the lion. John P. Hubbard. This action was brought by the appellee, a private corporation, against Mrs. Sallie L. Perdue and others, to recover two lots in the city of Montgomery; and was commenced on the 17th November, 1885. The defendants, who were the children of David H. Carter and his wife, Mrs. Martha L. Carter, pleaded not guilty; and the cause was tried on issue joined on that plea.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 22d February, 1882, by the City Council of Montgomery, a municipal corporation, against Joseph S. Winter and his wife, Mrs. Mary E. Winter; and sought to subject certain real estate in the city of Montgomery, which was alleged to be held by Mrs. Winter “as her separate estate,” to the payment of municipal taxes assessed against it from the year 1873 to 1881, inclusive.

Tried before the Hon. James E. Cobb. This was a prosecution for the violation of a municipal ordinance of the town of Gadsden, which provided that, from and after its passage, “it shall not be lawful for any person to sell, or otherwise dispose of vinous, spirituous, or malt liquors, or other intoxicating beverages or bitters whatever, within the corporate limits of Gadsden and imposed a penalty of $50 for its violation.

Tried before the Hon. Henry JD. Clayton. This action was brought by the appellant, a domestic private corporation, against John A. Reynolds and R. M. Lee, as partners doing business under the firm name of Reynolds & Lee; was founded on three promissory notes signed in said partnership name, each for $2,705.67, dated May 1st, 1884, and payable to the order of the plaintiff, at the First National Bank of Montgomery, on the 15th October, November and December, respectively; and…

Heard before the Hon. Tiros. H. Smith, Register in Chancery, sitting as Probate Judge. In the matter of the petition, of Sarah and Margaret Koger, minors, by their next friend, asking the revocation of letters of administration bn the estate of Elijah Bouldin, deceased, granted by the Probate Court of said county, on the 10th July, 1885, to A. C. Franklin, by virtue of his office as sheriff of the county.

Tried before the Hon. John P. Hubbard. This action was brought by Robert Black and others, against J. R. Sermon and his tenants, to recover certain lands, particularly described in the complaint; and was commenced on the 20th October, 1883.

Tried before the Hon. H. A. Sharpe. This action was brought by E. K. Fulton, against J. C. West-brook, Samuel Torrey, and E. C. Mackey; and was commenced before a justice of the peace, on the 5th February, 1885.

Tried before the lion. Henry C. Speake. This action was brought by Alonzo F. Trimble, against W. R. Anderson and A. R. Anderson, to recover damages for the publication by them of an alleged libel, in a newspaper published in the town of LaFayette in said county.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 11th March, 1885, by B. B. Kyle, against W. C. Bellenger and his wife; and sought to enforce an alleged vendor’s lien on a tract of land, for a balance of purchase-money remaining unpaid.

Tried before the lion.. S. H. Sprott. This was a summary proceeding, by notice and motion, in the name of B. F. Reed, as county superintendent of education of Lamar county, against W. A. Young, as administrator of the estate of J. M. I. Guyton, deceased, who was ,the former county superintendent, and against A. A. Summers and others, sureties on the official bond of said Guyton as such superintendent ; and was* commenced on the 24th February, 1883.

<p>Appeal from the Circuit Court of Lee.</p> <p>Tried before the Lion. LIenrv D. Clayton.</p>

Heard before the Hon. John B. Tally. In the matter of the petition of James F. Washington, as administrator of the estate of William Washington, deceased, for an order to sell the decedent’s interest in certain lands, on the ground that the same could “not be equitably divided among the heirs without a sale.” The petition alleged that the lands belonged to the partnership of W. &J. F. Washington, which was composed of said decedent and said administrator, and which was…

<p> Garnishment on Judgment j Appeal from Justice’s Court. </p> <p>1. Appeal from justice’s court; how tried. — On appeal from a judgment rendered by a justice of the peace, his judgment is vacated, the case stand on the process and pleadings, and is triable de novo on the merits (Code, §§ 3121-22); and if the sum claimed exceeds twenty dollars, an issue must be made up under the direction of the court, and tried by a jury.</p> <p>2. Same; contesting garnishee’s answer; tendering issue ; judgment by default. — When the answer of a garnishee, denying an indebtedness, is contested, and the issue is decided against him by the justice, from whose decision and judgment he takes an appeal; the case stands in the Circuit Court as if there had been no judicial action on the contest, and the plaintiff must tender an issue in writing; and such issue not being tendered, he can not claim a judgment by default.</p>

Tried before the lion. John P. Hubbard. This action was brought by Samuel J. Bolling, against John A. Smith, to recover a tract of land containing 320 acres ; and was commenced on the 12th April, 1882. The defendant pleaded not guilty, “and the statnte of limitations.of five years under a tax-deed ;” and the cause was tried on issue joined on these pleas.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by Mrs. Georgia A. Yincent, as administratrix de bonis non of the estate of her deceased husband, David T. Yincent, against Thomas J. Martin and John M. Kidd, the administrators in chief; and sought, principally, to compel a settlement by said Martin, as the surviving partner, of the partnership accounts of the late firm of T. J. Martin & Co., which was composed of him and said David T. Yincent; and also to…

Tried before the lion. IT. A. Sharpe. This action was brought by E. IT. Jones, against W. P. Brewer, to recover $208, the price of a mortiser sold by plaintiff to defendant; and was commenced on the 19th February, 1885. The plaintiff was a manufacturer of machinery, doing business at Cleveland, Ohio, under the name of E. IT. Jones & Co. The negotiations between the parties were conducted through the mails.

Tried before the Hon. Tiios. M. Arrington. This action was brought by the First National Bank of Montgomery, against Samuel B. Marks, Jr., and was founded on two promissory notes, one for $1,600, and the other for $1,680; each of which was signed by W. C. Fellows as maker, payable to the order of the First National Bank of Montgomery, at its banking-house in the city of Montgomery, and indorsed by N. H. B. Dawson, J. B. Gaston, and the defendant, Samuel B. Marks, Jr. The…

Heard before the Hon. John A. Poster. The bill in this case was filed on the 1st September, 1882, by Moses Brothers as partners, claiming to be creditors of Mrs. Mary J. Micou, the wife of Benjamin H. Micou, against her and her husband, their infant son, B. Id. Micou ji\, Henry C. Semple, and others; and sought to subject to the satisfaction of the complainants’ debts against Mrs. Micou her interest in the crops raised on certain lands called the Prairie and the Wallahatchie…

Tried before the Hon. John Moore. This action was brought by George N. Giltner, against the Mobile & Montgomery Railway Company, as the assignee and successor of the Alabama & Florida Railroad Company, to recover damages for alleged breaches of covenant; and was commenced on the 30th March, 1885.

Heard before Hon. John A. Foster. The bill in this case was filed on the 13th JTune, 1882, by Samuel Spence and E. H. Muse, against the Mobile and Montgomery Railway Company, the Louisville and… Held: and which had been issued by said Alabama and Florida Railway -Company.

Heard before the Hon. W. C. Ward, as special chancellor, selected by the parties on account of the disqualification of Hon. Jona. Haralson, the presiding judge of the court.