Volume 81 — Alabama Reports

Tried before Hon. J. M. Carmichael. The appellants in this cause were indicted for the murder of Madison Caesar by shooting him with a pistol.

Erom the City Court of Mobile. Tried before the Hon. O, J. Semmes. The defendant below, in this case, Martin Dolan, was indicted for the murder of Robert Winbush, by shooting him with a gun.

Tried before the Hon. Thos. M. Arrington. This case comes up on appeal to this court the second time. The appellants, Jule and Handy Jordan, two colored men, were under indictment for the murder of one Albert York, also a colored man. The homicide occurred at night in the house of one Jerry Williams, in the county of Montgomery.

Tried before tbe Hon. John P. Hubbard. The defendant below, in this cause, Stephen Jackson, was indicted for the murder of Joseph Bragg, by shooting him with a gun. As shown in the record, this was the third trial; defendant was convicted of manslaughter in the first degree, and sentenced to the penitentiary for three years.

Writ op error to the Circuit Court of Greene County. Tried before the Hon. S. H. Sprott. Amos Washington was tried, October 29, 1886, on an indictment for murder, convicted and sentenced to be hung on December 17, 1886. The case comes to this court on writ of error. The errors alleged in' the petition for the writ are : 1. “ The record fails to show, that the panel of thirty-six jurors was lawfully organized by the court.

Tried before the Hon. James E. Cobb. Frank Baker, the appellant, and John Baker, his brother, were jointly indicted for murder in the first degree, alleged to have been committed, in the killing of Solomon, alias Solly Lowe.

Tried before the Hon. S. H. Speott. At tbe spring term, 1885, of the circuit court of Fayette county, Yilla Finch, the appellant, and Bube South, were jointly indicted for manslaughter in the first degree, alleged to have been committed by them in the hilling of James Lindsay.

Tried before tlie Hon. John Moore. Tbe appellant, Elizabeth Hoober, being on trial under an -indictment for arson, alleged to have been committed in setting fire in the night time to the dwelling house of one Mattie A. Beiclj the said Mattie A. Beid, who was the prosecutrix, and a witness for the State, was asked by the solicitor, if, on the morning after the fire, the defendant made any confessions to her.

Tried before the Hon. Thos. M. Arrington. Frank Johnson was indicted for arson in the first degree and tried under said indictment, December 2, 1886, and found guilty. The testimony in the case is not material to an understanding of the point reserved for the decision of this court.

Tried before the Hon. John Moore. The material facts are stated in the opinion.

Tried before the Hon. J. M. Chilton. The appellant, Aii’ica Jernigan, was indicted for selling or conveying forty bundles of oats, upon which he had given a written mortgage or lien.

Tried before the Hoh. S. H. Sprott. Kirge Dixon alias Cap. Dixon, was tried October 6, 1886, under an indictment for forgery. The indictment alleged that “ Kirge Dixon alias Cap. Dixon, falsely and with intent to injure or defraud, did forge a written instrument, as follows : “ April 28th, 1885. Dear Sir : I have nothing to do with Yeonie Dixon patch cotton, they are welcome to it and do what they please with it.' W. W. Robert, and also Mary Ann the same.

<p> Indictment for Trespass after Warning. </p> <p>1. Trespass after warning; by whom warning given. — To authorize a conviction for a trespass (Code, §§ 4419-20), the warning not to enter must be given by the person who is in possession, and who is entitled to the fine on conviction.</p> <p>2. Same; warning by landlord insufficient when tenant in possession. When the premises are in possession óf a tenant, under a lease which has not expired, a warning by the landlord or owner is not sufficient to sustain a prosecution under the statute.</p>

Tried before the Hon. John B. Tally. The appellant was tried and convicted on a charge of carrying a concealed pistol. The prosecution was commenced July 15, 1885.

Tried before the Hon. H. M. Judge. The prosecution in this case was commenced by the following complaint before a justice of the peace: “ Personally appeared Bufus Gordon, who being duly sworn, deposes and says, that on or about the 20th day of September, 1886, in said State and county, the, offense of persuading my daughter {Belle)from my employment and at night, and also taking her to his home and secreting her to prevent me from securing and taking her back to my employ,…

Tried before the Hon. Leroy E. Box. In this case the State introduced testimony tending to show that, on one occasion, a witness for the State went into the town of Oxford, in Calhoun county, State of Alabama, and meeting up with the defendant in the street, asked him if he knew where witness could get some whiskey.; that witness gave defendant some money, and defendant then went off, and, after an absence of some little time, returned with a quart of whiskey, which he…

Tried, before Hon. John P. Hubbard. In this cause only the sufficiency of the indictment is considered in the opinion of the court. The defects in the indictment are set out in the opinion. The questions raised in the bill of exceptions not being mentioned in the opinion, it is not considered necessary to state them here.

Tried before the Hon. John P. Hubbard. This was a prosecution for vagrancy, under section 4218 of the Code of 1876, instituted August 24, 1885, against the appellant, Ben Merriwether. On the trial, the State offered to introduce as a witness, Betsy Merriwether, the wife of the defendant, and the defendant objected to her being allowed to testify against him. The court overruled the objection and the defendant excepted.

Clair Circuit Court. Tried before the Hon. Leroy E. Bos. The appellant was tried and convicted October 6, 1886, under an indictment, for conveying into the county jail of St. Clair county a “ horse shoe rasp,” to aid one Jasper Towns, a prisoner lawfully confined in said jail on a charge of burglary, to escape.

John P. Hubbard, Judge of Circuit Court of Pike. In this case defendant was indicted for selling liquor to a person of known intemperate habits. There was evidence before the grand jury that liquor was sold to one Boss; but there was no evidence, except the statement of the jurors, one to another, that Boss was of known intemperate habits. The Circuit Court denied a motion to quash the indictment, made on the ground that the indictment was not found on legal evidence.

Prom: the Probate Court of Hale. This was an application for the writ of habeas corpus, originally addressed to, and heard by, the Hon. James M. Hobson, Judge of the Probate Court of Hale county.

This was an application by petition of Thomas Small, for the writs of certiorari and habeas corpus, to procure his discharge from the custody of It. W. Milner, agent of Heard & Pace of Tallapoosa county, who had a contract with the county commissioners of Tuscaloosa county for the hire of convicts sentenced to hard labor for offenses not involving moral turpitude.

“ ■ This was an application to this court by Dave Cameron for tbe writ of habeas corpus, which had been refused by the Hon. H. M. Judge, judge of the Criminal Court of Greene county. The opinion states the material facts. 1. Habeas corpus is the proper remedy, whenever a party is illegally restrained of his liberty. — Ex parte Greios, 78 Ala. 157; Smith v. State, 76 lb. 69 ; State v. Metcalf, 75 lb. 42 ; Kirby v. State, 62 Ib< 51; Ex parte McKivett, 55 lb. 236. 2.

Tried before the Hon. James Aiken. This was an action by scire facias against W. B. King and others, sureties on a bond for the appearance of Pate Poe, under indictment, who failed to appear.

Tried before the Hon. Leeox E. Box. This was a motion to retax the costs in the case of the Tennessee and Coosa Rivers Railroad Company v. the East Alabama Railway Company. The plaintiff in that suit recovered judgment, upon which execution was issued and levied by the sheriff upon property of the defendant. Erom this judgment the defendant appealed after the levy and superseded the execution, by bond.

Tried before the Hon. Jno. P. Hubbard. This was a motion to tax and charge certain houses and lots recovered by appellee, in two suits in the Circuit Court of Pike county, with the costs incurred by her in recovering said property, execution having been issued against the defendants in said suits, which had been returned no property found.

<p>Appeal from the Circuit Court of Greene.</p> <p>The appeal in this case was dismissed on motion of appellee. The facts are stated in the opinion.</p>

Tried before the Hod. H. A. Sharpe. The appeal in this case was dismissed by this court, on motion of appellee, because the transcript of the record was not filed during the term of this court to which the appeal was taken. 1. There is' no power to compel the clerk or register to make and deliver a transcript of the record until the third day of the next term of the Supreme Court, next after the appeal. — Code of 1876, §§ 3933, 3939 and 3940.

Heard before the Hon. W. C. Oliver. The appellant, M. F. Berry, as executor of the will of Thos. T. Tyree, deceased, filed October 9, 1886, a motion in the Probate Court of Greene county, to quash an execution against said decedent as one of the sureties on the bond of T. C. Clark, as administrator of the estate of Z. T. Eubanks, deceased.

<p>Appeal from City Court of Mobile.</p> <p>Heard before the Hon. O. J. Semmes.</p> <p>The facts are set forth in the opinion.</p>

Heard before the Hon. James Aiken. The appellees, Goodbar, White & Co., sued out an attachment against one J. B. Mackey, which was levied on a stock of goods, and the appellant, J. B. Hale, filed a claim bond for said goods, with the other appellants, L. D. Hale and James Bothwell, as his sureties thereon.

Tried before the Hon. Jno. P. Hubbard. Appellant petitioned the Board of Revenue of Montgomery county to set aside and annul an assessment made against it by the tax assessor of said county. The petition was denied, and petitioner applied to the Circuit Court of said county for writ of certiorari, which was granted. On hearing, the court quashed the writ, and dismissed the petition, and petitioner appealed. The opinion states all material facts.

Tried before the Hon. James E. Cobb. This was an attachment suit for rent by the appellee, William D. Stone, against the appellant, James R. Adair.

Tried before the Hon. H. A. Sharpe. The material facts in the view of the case taken by this court, are stated in the opinion. The court, at the request, in writing, of Handley, Beeves & Co., the defendants, charged the jury, that if they believed the evidence, they must find for the defendants, and plaintiff excepted.

Tried before the Hon. S. H. Spbott. This is an action of trover, brought by the original vendor, Ward, against King, his vendee, and Morris, the sub-purchaser, for the conversion of certain merchandise. King died, pending suit, and Kyle became his administrator. The questions passed on by the court were presented by exceptions to the charges given and refused.

Tried before Hon. John M. Chilton. This was an action of trover brought by LeGrand & Hall, original vendors, against the Eufaula National… Held: and in consideration that the said Robert Moulthrop has given us a credit for the sum of three thousand and seven hundred dollars on our said indebtedness to him in full payment of said sum of three thousand and seven hundred dollars ; and for the further consideration that said Eufaula National Bank, and said Robert Moulthrop, do…

Tried before the Hon. John P. Hubbard. This was an action of detinue for certain boxes of soap brought by N. K. Fairbanks & Co., original vendors, against Bobinson & Ledyard, alleged fraudulent sub-purchasers from Bushton & Co., original vendees. Judgment was rendered in favor of plaintiffs. The opinion of the court contains a statement of all material facts.

Tried before the Hon. John P. Hubbard. This was a statutory action for the recovery of chattels in specie, brought by Isador Levi, original vendor, against Robinson & Ledyard, alleged fraudulent sub-purchasers from Rushton & Co., original vendees. Judgment was rendered for plaintiff. The opinion contains a statement of all material facts.

Tried before the Hon. John P. Hubbard. This was an action for recovery of certain boxes of cigars and tobacco, brought by the New York and Havana Cigar Company, original vendor, against Bernheim, alleged fraudulent sub-purchaser, from Dreyfus, original vendee. Judgment was rendered in favor of defendant.

Tried before the Hod. James Aiken. This was an aetioD of trover by the appellant, the “ Cleveland Woolen Mills,” a corporation engaged in manufacturing at Cleveland, Tenn., against the appellees, William J. Sibert, J. R. Ward and A. J. Blair, partners doing business at Gadsden, Ala., under the name of Sibert, Ward & Co., for the alleged conversion of twenty pieces of jeans.

Tried before the Hon. W. E. Clarke. The appellee, Presley M. Wilkerson, brought an action of detinue against the appellant, W. R. Medlin, for the recovery of two mules. The plaintiff had loaned the mules to one Grimmer, in Marion, Perry county, Alabama, to conduct a peddling business, expressly directing him not to sell or otherwise dispose of them. Grimmer sold the mules for full value to one Meyer in Tuscaloosa, Alabama, who sold them to the defendant.

Tried before the Hou. John P. Hubbard. This was an action of detinue for a mule, in which the appellee, Coskrey, was plaintiff in the court below, and appellant, Hanchey, defendant. The material facts and rulings of the court below are stated in the opinion. A judgment not upon the merits, is not conclusive as an estoppel. — Chamberlain v. Gaillard, 26 Ala. 504; Gilbreath v. Jones, 66 lb. 129; Thomason v. Adams, 31 lb. 108.

Tried before the Hon. John P. Hubbard. The only point reserved, and the evidence relating thereto, are set forth in the opinion. cited, on the question of estoppel, Hall v. White, 3 C. & P. 136; Caldwell v. Smith, 77 Ala. 157; Grace v. McKissaclc, 49 1 b. 163 ; Hendrich v. Kelly, 64 lb. 388 ; Prichett da Maddox v. Sibert, Adm’r, 75 Ib. 315 ; 2 Wait’s A. & D. 533 ; Bigelow on Estoppel, 620, et seq. ; Herman on Estoppel, section 733, et seq. cited Gamble v. Gamble’s Adm’r, 11…

<p>Appeal from Circuit Court of Crenshaw.</p> <p>Tried before the Hon. Jno. P. Hubbard.</p> <p>The opinion states the facts.</p>

Tried before the Hon. S. H. Sprott. This was an action of trover by the appellee, C. W. Cary, against the appellant, the East Tenn., va. & Ga. R. R. Co., for the conversion of cross-ties alleged to be the property of appellee. The plaintiff claimed the cross-ties under a contract of purchase from one McConaughy, who cut them, and the defendant claimed them under a contract with one Shortridge.

Tried before the Hon. John P. Hubbard. It appears from the record that the giving of the charge asked by appellee, and the refusal of the charge asked by appellant, were signed by the presiding judge and thereby became a part of the record. Code of 1876, § 3109. It is only necessary to reserve exceptions when the charge, opinion, or decision of the court would not otherwise appear of record. — Code of 1876, § 3107.

Tried before the Hon. John P. Hubbard. The horse in question was levied on by the sheriff as the property of J. L. Jones,, the defendant in the cause, to satisfy an execution issued upon a judgment obtained by plaintiff, Franklin, against said J. L. Jones.

Tried before the Hon. H. C. Speaks. This was a “ trial of the right of property ” in a certain “ bay ” mule, between the appellee, W. C. Lee, as plaintiff in attachment, and the appellant, Bettie M. Guy, as claimant. The attachment suit was against George S. Poster, and was for damages for a breach of warranty of the title of a mare sold by Foster to Lee.

Tried before the Hon. John P. Hubbard. The appellants, McCord & Aydelotte, sued out an attachment against the estate of one E. A. Butler, which was executed by serving process of garnishment upon the appellees, Tennille & Tate. The appellees filed an answer denying indebtedness to said Butler, and the appellants controverted the answer; whereupon an issue was made up between them under the direction of the court. The facts are stated in the opinion.

<p>Appeal from Circuit Court of Pike.</p> <p>Tried before the Hon. Jno. P. Hubbard.</p> <p>The opinion states the facts.</p>

<p> Garnishment on Judgment. </p> <p>1. Judgment on answer of garnishee — When the answer of a garnishee is not contested. judgment must be rendered on the facts stated in it as if they were inte; and if lie does not admit an indebtedness, for which an action of debt or indebitatus assumpsit would lie, or the possession of property subject to the garnishment, he is entitled to be discharged.</p> <p>2. Garnishment of insurance company after loss. — When a garni,-ihment ;s sued out against an insurance c< mpany, which had issued a polic.i in favor of the defendant in the. judgment, and the answer admits a loss and consequent liability, but claims the right to rebuild, as stipulated in the. policy, the garnishee is entitled to be discharged, unless the answer is contruvei ted; though the court might, it seems, on motion, retain the case until the expiration of the period limited for rebuilding.</p>

Tried before the Hon. H. C. Speake. The iujury for which the appellee, Elizabeth King, brought this suit, was received by her June 28, 1884, while standing upon a side track of the appellant at Leighton, an incorporated town and a station on appellant’s road in Colbert county. This side track ran from east to west, and was enough down grade for the cars to move westwardly unless held in place by brakes.

Tried before tbe Hon. James E. Cobb. This was an action by tbe appellant, John M. Erazer, as administrator of tbe estate of Richard Erazer, deceased, against the appellee, tbe South and North Ala. R. R. Co., for $25,000, claimed as damages for causing the death of said decedent. The pleas were : “ 1. Not guilty. 2.

Tried beiore tbe Hon. H. A. Sharpe. This was an action by the appellee, William J. Bass, as the administrator of John Moyle, deceased, against thfe appellant, the Eureka Company. The nature of the case is stated in the opinion. The complaint as amended contained four counts.

Tried before the Hon. H. C. Speake. The appellant, Charles H. Williams, brought suit against the county of Colbert under § 1692 of the Code of 1876, for damages for injury to him and his property caused by the falling of a certain bridge, while he was crossing it with his wagon and team, August 10, 1885.

Clair. Tried before the Hon. L. F. Box. This was an action by the appellant, Jule L. Jordan, against the appellee, the Alabama Great Southern Railroad Company, for an alleged malicious prosecution of the former by the latter, and is now before this court the second time. See 74 Ala. 85. The defendant pleaded: 1. Not guilty. 2.

Tried before the Hon. James Aiken. The appellee, Henry H. Smith, brought this suit against the appellant, the Ala. Great So. R. R. Co. The nature of the action and the material facts are stated in the opinion.

Tried before the Hon. H. C. Speake. The appellant, Nancy C. Sparkman, brought an action of trespass against the appellees, M. T. Swift and others, to recover damages for the alleged wrongful taking of certain goods and chattels, averred to be the property of the plaintiff. The pleas are not set out in the record.

Tried before the Hon. James E. Cobb. This was an action by the appellant, George G. Lilley, against the appellee, John F. Fletcher, for an injury to the appellant’s mill dam, alleged to have resulted from the negligence of the appellee’s agent under the circumstances set forth in the opinion.

Tried before the Hon, H. A. Shabpe. This was an action by the appellee, William H. Wallace, against the appellant, S. D. Howland, doing business under tbe name of the “Birmingham Transfer Company,” for damages for failure to deliver a trunk and contents, alleged to have been received by appellant as a common carrier for delivery to tbe South & North Alabama Bailroad Company at Birmingham, Alabama. Tbe complaint was according to Eorm 13, Code of 1876, p. 703.

Tried before the Hon. James Aiken. Camp, Glover & Co., appellants, sued J. M. Eandle & Co., appellees, on two promissory notes, made by the latter payable to the former. The defendants pleaded “payment” and “usury.” On the trial the plaintiffs introduced the notes, both of which bore date at Borne, Ga., Jan. 16,1882, and were payable, respectively, at sixty and ninety days, to the plaintiffs at their office, with interest from maturity at 12 per cent, per annum.

Tried before the Hon. J. M. Carmichael. The appellant, M. Gr. Stoudenmire, brought suit against the appellees, Harper Brothers, on a note for $430.92 made by them, dated Jan. 9, 1882, and payable one day afterdate to appellant, with interest from date. The defendants pleaded the general issue, payment, accord and satisfaction and set-off.

Tried before the Hon. James Aiken. This suit was brought on a promissory note in a justice’s court, by the appellee, Isaac Edwards, against the appellants, John Neff, Anna Neff, ¥m. Schielie, Jess Thornton, Louis Kirshmer, It. L. Chamblee and James P. Chamblee.

Tried before the Hon. S. H. Sprott. This was an action by the appellee, “The Thomas Harrow Company,” against the appellants, I. Seymour, A. I. Seymour and William I. Seymour, partners under the name of I. Seymour & Sons, on a promissory note.

Tried before the Hon. James E. Cobb. The appellees, Tate, Muller & Witcher, brought suit against the appellant, William S. Jackson, on two notes made by appellant to appellees.

Tried before the Hou. S. H. Sprott. This was an action by the appellee, the Pacific Guano Company, against the appellant, James B. Burroughs, on a note given by him to appellee for $94.50, in payment for fourteen sacks of Soluble Pacific Guano.

Tried before the Hon. J. M. Carmichael. This action was on a, promissory note given by.the appellees, W. M. Segars and John Davis, in the purchase of a commercial fertilizer, known as Bahama Soluble Guano.

Tried before the Hon. H. C. Speake, The appellees, Watts & Sons, a partnership in the pracice of the law, composed of Thomas H. Watts, John W. Watts and Thomas EL Watts, Jr., brought suit against the appellant, Samuel H. Moore, for the value of professional services rendered the appellant. The individual names of the members of the plaintiffs’ firm were set forth in the summons, but the firm name alone was used in the complaint and judgment.

Tried before the Hon. H. C. Speake. This suit was brought by the appellee, Tbos. G. Hewlett, against the appellant, Joseph H. Schloss, and resulted in a verdict in favor of Hewlett for $5089.05. The material facts are stated, in the opinion. 1. A deputy marshal is an officer for whose appointment, qualifications and removal, the laws of the United States expressly provide. — Rev. Stat.

<p> Statutory Action in the Nature of Detinue for the Recovery of a Horse. </p> <p>1. Whai title will support action. — In detinue, or the corresponding statutory action for the recovery of chattels in specie, the plaintiff can not recover on proof of a mortgage to a partnership, of which he is a member.</p>

<p> Mandamus to Medical Examiner by Railroad Employee. </p> <p>1. Examination of railroad employee for color blindness ; payment of examiner’s fees. — The act approved February 28th, 1887, requiring the examination of certain railroad employees for color blindness and other defects of vision (Sess. Acts 1886-7, p. 87), expressly provides that the fee of the medical examiner shall be paid by the railroad company; and he can not refuse to make the necessary examination, orto issue his certificate to the applicant if f mnd duly qualified, because the railroad company contests and denies its liability to pay the fee.</p> <p>2. Same ; as to constitutionality of law. — The applicant for examination and the medical examiner each claiming and asserting rights under the said statute, neither can be heard to assail its constitutionality.</p>

Tried before the Hon. Tejos. M. Arrington. The appellant, Lorenzo -D. McDonald, was prosecuted for, and found guilty of, a violation of the act entitled “An act to require locomotive engineers in this State to be examined and licensed by a board to be appointed by the Governor for that purpose,” approved Feb. 28, 1887.- — Acts of 1886-7, p. 100.

Tried before the Hon. John P. Hubbard. In this case the action was by the appellee, King, a physician or specialist, against the appellant, Jonas. The declaration was upon the common count for medical services rendered.

<p>Appeal from the Circuit Court of Montgomery.</p> <p>Tried before the Hon. James E. Cobb.</p> <p>The opinion states all the material facts.</p>

Tried before the Hon. James Aiken. This was an action for money had and received, brought by the appellant, James C. McPherson, against the appellee, Samuel Foust. The plea was the “general issue.” The defendant, Samuel Foust, had sold a store-house and residence in Blountsville, Alabama, to. one James M. Wooten, who had given defendant a note for the balance of the purchase-money unpaid.

Tried before the Hon. H. A. Sharpe. The appellees, Benjamin Tidwell, Mary E. C. Tidwell, and Hannah Pamelia Tidwell, brought suit against the appellant, J. T. Pierce.

Tried before the Hon. Leroy F. Box. The appellees, Beed and Partlow, sued the appellant, “The Woodstock Iron Company,” for an alleged breach of an oral contract. The complaint contained three counts, the first and second of which were, respectively, on an account stated and for work and labor done, and the third was a special count on the contract as testified to by the plaintiffs. The pleas were non assumpsit, payment, and set-off.

Tried before the Hon. W. E. Clarke. This was an action by the appellees, T. P, Miller & Co., bankers in the city of Mobile, against the appellant, F. C. Brent, a banker in Pensacola, Florida, for the recovery of $691.35, balance due on general account. The material facts are stated in the opinion. Among other pleas, the defendant filed the following : “4.

<p>Appeal from the Circuit Court of Montgomery.</p> <p>Tried before the Hon. Jno. P. Hubbard.</p> <p>The facts are stated in the opinion.</p>

Tried before the Hou. O. J. Semmes. The opinion states the facts. 1. — The general charge should have been given. The evidence established a misrepresentation of the age of the assured, made in the application upon which the policy was issued. — Tuttle v. Walker, 69 Ala. 172; Banders v. State, 58 Ala. 371. 2.

W. E. Clarke, This case is brought to this court the second time by the appellant, the Phoenix Insurance Company. — See Phcenix Insurance Oo. v. Moog, 78 Ala. 284. The action, as originally brought, was by A. & B. Moog, as partners, against appellant, on a policy of insurance for $12,500, procured on a cargo of merchandise by said A. & B. Moog from appellant.

Tried before the Hon. John P. Hubbard. The facts are stated in the opinion. The court, on request in writing, gave the general charge in favor of appellee, and appellant excepted.

Tried before the Hon. John M. Chilton. The appellants, Smith, Stewart & Co., tobacco merchants of Lynchburg, Virginia, brought suit against J. Y. Crawford, Levi Kirkland, and W. S. Oats, for the breach of the condition of a bond, alleged to have been made by them, dated February 12, 1885, and payable to plaintiffs in the sum of $ 1,000.00, with condition, that if said J. Y. Crawford should faithfully pay over to appellants whatever sums they might advance to him or he might…

Tried before the Hon. H. C. Speake. Statutory action for the recovery of chattels in specie by the appellee, William K. Wallace, against the appellant, James B. Boyle. The defendant pleaded “not guilty,” and also a special plea of “r. s judicata,” the nature of which is stated in the opinion. The plaintiff demurred to this plea, on the ground, that the subject matter of the two suits was different, and, also, on the ground set forth in the opinion.

Tried before the Hou. H. C. Speaks. This was a statutory real action in the nature of ejectment by the appellant, E. Á. Gates, against the appellee, Robert B. Hester. The land sued for was the homestead of the defendant, who was a married man, and the plaintiff claimed title under a mortgage executed by the defendant and his wife.

Tried before the Hon. James E. Cobb. This was the statutory action for the recovery of land, brought by appellee, Mary Renfroe, against the appellants, Frances Askew, landlord, and H. J. Askew, Ierre tenant.

Tried before tbe Hon. John Moore. The nature of tbis case, and the material facts, are stated in the opinion. The court below, at the request in writing of the plaintiff, charged the jury that, if they believed the evidence, they must find for the plaintiff. To this charge the defendants excepted.

* Tried before the'Hon. H. C. Speake. This was the statutory real action in the nature of ejectment by the appellant, Julia J. Hancock, against the appellees, Emmett Kelly and Solon Kelly, and is now before this court the second time. — See Kelly v. Hancoclc, 75 Ala. 229.

Tried before the Hon. H. C. Speake. This was the statutory action for the recovery of land by ¡the appellant, Malinda C. Dossey, as heir at law of Malcolm G. Graham, against the appellees, Anna Pitman et al., heirs of Elizabeth Graham, widow of said Malcolm G. Graham, The laud sued for was in the possession of the defendants, who claimed under the alleged homestead right of said Elizabeth Graham.

Tried before the Hon. John M. Chilton. This was the statutory action in the nature of ejectment brought by the appellant, G. T.' Long, as administrator cle bonis non cum testamento annexo, of the estate of Charles I). Bush, deceased, against the appellee, Alfred Parmer, for the recovery of certain lands, of which said Charles D. Bush died seized and possessed. Charles D. Bush died in 1853, leaving a will, which was duly probated, June 13, 1853.

' Tried before the Hon. James E. Cobb. The appellants, P. A. Tatum and Henry D. Tatum, as late partners under the name of Tatum Bros., brought the statutory action in the nature of ejectment against the appellee, E. W. Tatum, for the recovery of certain lands in Macon county. The plaintiffs claimed title to the land under a mortgage deed, executed to them by defendant and M. Tatum.

Tried before tbe Hon. H. D. Clayton. This was ejectment by the appellant, Charles M. Hooper, against tbe appellees, Melissa J. Clayton, widow of A. B‘ Lyon, deceased, and others,… Held: for the purpose of breaking the continuity of sucia adverse holding, and the land at the time of such entry is held by several tenants claiming from a common source, it is not necessary in order that he may regain his seizin, that such tenants acknowledged his title or his right of entry.

Tried before the Hon. Jno. P. Hubbard. This was an action to recover certain real estate in the city of Montgomery, and was tried on the following agreed statement of facts : 1. That on and before the 13th day of March, 1879, plaintiff was and is now a married woman, the wife of Patrick Robinson. 2.

Tried before the Hon. Jno. P. Hubbard. This action was brought by appellee for the recovery of land. The bill of exceptions recites that, “the plaintiff offered in evidence a mortgage from S. J. Webb and wife, Mary Webb, to W. W. Wilkinson, dated October 26th, 1875. Also a mortgage from and signed by W. J. Hurston and Gr.

<p>Appeal from the Circuit Court of Coffee.</p> <p>Tried before the Hon. J. M. Carmichael.</p> <p>The material facts appear in the opinion.</p>

<p> Staiuatory Action in the Nature of Ejectment. </p> <p>1. C onvey anee to married woman, “for joint use of herself and of her children." — Under a conveyance of lands to a married woman “ to have and to hold to her for the joint use of herself and her children, B. and F., and such other children as shall he born to her of her present marriage,” she takes only a partial interest in the property as tenant in common with her children.</p> <p>2. Lease of wife’s lands by husband. — The husband, being trustee of his wife’s statutory estate, with power to manage and control it (Code, § 2706), may make a valid lease of her lands, for a term of one year or less, without her concurrence; but his lease for a longer term, without her concurrence, is void as to the excess.</p> <p>3. Recovery of partial interest by plaintiff as lessee. — When the plaintiff in ejectment, or a statutory action in the nature of ejectment, claims under a lease for several years, which is valid for only one year; if his action is brought before the expiration of that year, but it expires before the determination of the suit, he may recover mesne profits for the unexpired portion of the term during which he has been kept out of possession.</p>

Tried before the Hon. Price Williams, Jr. This was a contest of the probate of a paper purporting to be the last will and testament of Mrs. Minna Erank, deceased, in which Kramer, the appellant, was appointed executor. Judgment was rendered for contestants, and Kramer appealed. The questions presented for decision arose on exceptions by Kramer to the allowance of certain evidence, and the charges of the court.

Heard before the Hon. James Aiken. The appellee, Isaac M. Stephens, filed a petition in the Probate Court of Etowah county, July 25, 1884, for the probate of the will of William Griffith, deceased.

Tried before tbe Hon. S. H. Sprott. The complaint in this case was, as follows: “ J. T. Wallace, plaintiff, v. H. M. Bell, defendant.

Heard before the Hon. William Bichardson, This was an application by the appellants, William B. Dickey et al., for an original probate of the will of William Cloud, deceased, wbo died in 1846, not being an inhabitant or citizen of this State, but leaving assets in Madison county. Soon after his death, in September, 1846, the will was admitted to probate by the County Court of Davidson county, Tennessee, the county of the testator’s domicil.

Heard before the Hon. Asa B. Hays. Sarah Moore died intestate at Cullman, Alabama, October 4, 1886.

Heard before the Hon. H. W. Capply. The points reserved in this case arose on the final settlement by appellant, Willis Brewer, of his guardianship of the estate of the appellee, Sallie K. Ernest. The final settlement took place in July, 1886 ; and there had been a partial settlement in January, 1886.

<p>Appeal from Probate Court of Madison.</p> <p>Heard before the Hon. Wm. Rtchardson.</p> <p>cited Merrill v. Jones, 2 Ala. 192 ; 1 Brick. Dig. 972, § 82(1</p>

Heard before the Hon.' W. J. Hillard. The appellee, A. S. Heard, filed a petition to have the decree on final settlement of his administration of the estate of John Emerson, deceased, amended nunc pro tunc. A decree was rendered in the court below granting the petition. The appellant, Alice Emerson, was a daughter of said John Emerson, and a distributee of said estate. The opinion states the material facts.

Heard before the Hou. James H. Booth. This was an application to the Probate Court of Autauga county by the appellant, Henry C. Moses, as guardian of the minor children (all under fourteen years of age) of Isaac Abraham, deceased, to require the appellee, Jacob Eaber, to file an account and vouchers for a final settlement of his guardianship of the estates of said minors.

Heard before the Hon. Thomas L. Erazer. The appellee, W. K. Meadows, as administrator de bonis, non of the estate of Isham Meadows, deceased, having reported a sale of lands for payment of debts, the confirmation of the sale was objected to on, substantially, the following grounds: 1. That the land was sold for a sum greatly less than its real value. 2. That the administrator was the real purchaser and procured a nominal purchaser to buy for him. 3.

Tried before the John P. Hubbard. This was an action of detinue by the appellee, Joel D. Murphree, as administrator of the estate of John Blair, deceased, against the appellant, Malinda Blair, the widow of said deceedent, for the recovery of certain cotton, part of a crop planted and in process of cultivation by the decedent at the time of his death.

Tried before the Hon. John P. Hubbard. This was an action of detinue, brought by the appellees, Martin H. Sullivan and Emily S. Sullivan, as executors of the will of Daniel F. Sullivan, deceased, against the appellants, Joseph W. Leatherwood and Daniel Leatherwood, for the recovery of thirty-five pieces of timber, more or less, alleged to have been cut from section 13, township 2, and range 6, in the county of Escambia, State of Alabama.

<p> Bill in Equity to Foreclose Mortgage. </p> <p>1. Equitable relief against settlement of accounts. — A settlement of accounts is not conclusive on the parties, but may be opened in equity on proof of fraud, imposition or undue advantage; hut the burden of proof is on the party complaining, and relief will only he granted on precise and definite allegations, supported by clear and satisfactory evidence.</p> <p>2. Same —When a settlement of accounts has been deliberately made, a note or other security being voluntarily given for the ascertained balance, the presumption is in favor of its fairness and correctness, and the transaction will not be opened on probable or conflicting evidence ; and unexplained acquiescence, accompanied with knowledge, or the means of acquiring knowledge of material facts, and subsequent dealings based on the correctness of the settlement, may operate a bar to equitable relief against it.</p> <p>3. Same; case at bar. — In this case, a settlement between two parties, between whom no confidential relation existed, having been closed by note and mortgage; a second settlement afterwards made, including subsequent dealings, and closed by new note and mortgage; a suit in chancery to enjoin a sale under the mortgage compromised between an assignee and the mortgagors, by which the assignee relinquished valuable rights secured by the mortgage, and granted an extension of time; held, that on bill filed to foreclose the mortgage, after the lapse of seven years, the mortgagors could not impeach the settlement, on account of omissions and errors in the account, of which they were not ignorant at the time the settlement was made.</p> <p>4. Defenses against foreclosure. — On hill to foreclose a mortgage, any defense may be set up which would be available in an action at iaw on the note, except the statute of limitations.</p> <p>5. Usury as defense — When usury is set up in defense of a bill to foreclose a mortgage, it must be alleged specifically and particularly, stating the terms of the agreement and the amount of usurious interest.</p> <p>6. Exceptions to register’s rulings and report. — Exceptions to the rulings of the register on the statement of an account, when dependent on the testimony before him, are properly overruled, unless taken and reserved as required by the rules of practice; hut an erroneous ruling on a question of law may he revised.</p> <p>7. Taxes on mortgaged lands. — When a mortgage provides that the notes given for rents shall be delivered to the mortgagee, and that the taxes shall be deducted from the rents, the taxes constitute a charge on the lands, and, if paid by the mortgagor, he can not claim a credit for the payment.</p>

Heard before the Hon. Thos. W. Coleman. The court has unquestioned jurisdiction to foreclose the mortgage, and tbe questions presented are incidental to the main equity. A court of law is incapable of doing justice between the parties. “ A court of equity ought not to interfere with proceedings at law, unless it has better means of doing justice between the parties than are possessed by a court of law.” Lord Selbourne, in Ochsenbein v. Papelier, T. R. 8 Oh.

<p> Bill in Equity for Foreclosure of Mortgage. </p> <p>1. Proof of recorded deed by transcript, or certified copy. — A conveyance of lands executed in Tennessee, but not acknowledged or proved according to law (Code, §§ 2154, 2158, 2160), though recorded in the proper county, can not be proved by a transcript of the r< cord ; and if properly acknowledged (or proved) and recorded, while the original would be admissible without further proof, a transcript would not be admissible without accounting for the original.</p>

Heard before the Hon. Thomas Cobbs. Bill by appellee, Joseph W. Dean, against the appellant, Isaac L. Goodloe et al., for foreclosure of a mortgage executed by said Goodloe and his wife to said Dean. The other defendants were prior mortgagees of a part of the land mortgaged by Goodloe and wife to Dean.

Heard before the Hon. S. K. McSpadden. The presumption is always against the pleader. The law presumes in favor of Mrs. Harris, that had her estate in the lands been such that she could execute a valid mortgage upon it, that fact would have been alleged. — 1 Brick Dig. p. 701, § 203.

Heard before the Hon. S. K. McSpadden. The appellant, Mills Rogers, filed a bill to foreclose a mortgage, executed to him by the appellee, the “ Prattville Manufacturing Company No. 1.” The cause was heard at the October Term, 1886, of the Chancery Court of Autauga, and a decree of forclosure was rendered. The following assignments of error were made by appellant in this court: “ 1.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed by the appellee, Penelope Frederick, against the appellants, Jack and Ellen Bynum, for the foreclosure of a mortgage, on certain lands embraced therein, made by appellants to appellee.

Heard before the Hon. John A. Foster. This was a suit in equity to foreclose a mortgage, brought by Kenny L. Butler and Pierce O. Butler, administrators, &c., of Joseph O. Butler. Charles W. Gazzam, Sr., owing Joseph C. Butler seven thousand five hundred dollars, evidenced by a promissory note, executed to him as security a mortgage on certain real estate.

Heard before the Hon. John A. Eosteb. James B. Hawkins made a contract of sale of three hunclred acres of land to E. N. LaBoche for $500.00. Of this amount LaBoche paid $100.00 cash and executed to Hawkins two promissory notes of $200.00 each for the balance, payable in one and two years, respectively; and Hawkins gave LaBoche bond for title on payment of the notes. Hawkins sold these notes for value to appellant, J. E. P. Flournoy.

Heard before the Hon. S. K. MoSpadden. This was a bill by the appellee, Eliza J. Karsner, against the appellants, Joseph B. Kelly and Fleming J. Kelly, to enforce a vendor’s lien for purchase-money on 109 acres of land. The complainant and defendants were the children of Russell Kelly.

<p> Bill in Equity to have Vendor’s Lien declared and for Re-sale of Land for Purchase-Money. </p> <p>1. Staleness of demand, presumption of payment from lapse of time. When a decedent’s lands have been sold under apnbate decree on the application of the administrator, who became himself the purchaser at the sale, and it was confirmed by the court; a bill in equity by the heirs, filed after the lapse of twenty years from the time t-he purchase-money became due from the administrator, against sub-purchasers from the administrator, is demurrable on the ground of staleness, and because of the presumption of payment arising from the lapse of time.</p> <p>2. Same; must be pleaded. — The defense of staleness of the complainant’s demand, or the presumption of payment arising from the lapse of time, may be taken by demurrer, when shown by the facts state din the bill; but it is matter for defense, and must be claimed; and, therefore, where there are several defendants, some of whom make no defense, it is error to dismiss the bill as to all, on demurrer by a part of them only.</p>

<p>Appeal from tbe Chancery Court of Tallapoosa.</p> <p>Heard before the Hon. S. K. MoSpadden.</p> <p>cited, Daniel’s Chancery Practice, 796 ; Pickett v. Loggan, 5 Yes. 706 ; Alltree v. Hordern, 5 Beav. 623; Ljantour v. Holcombe, 10 ib. 256; Spiers v. Seiuell, 5 Sem. 193 ; Simpson v. Brewster, 9 Paige, 245 ; Princess of Wales v. Lord Liverpool, 3 Swanst. 167; Ernest v. Govett, 2 N. R., 486.</p>

Heard before the Hon. Thoh. Cobbs. The bill in this case was filed by the appellee, Wm. E. Alexander, against the appellants, Mary Hooks, the widow of Wm. Hooks, deceased, and Hooks Moore, James D. Moore, Susan T. Moore and Alexander Moore, children of Susan Moore, deceased, who was the daughter and only heir of said Wm. Hooks, and the administrator of said Susan Moore, and sought to enforce a vendor’s lien on certain lands described in the bill.

Heard before the Hon. S. K. MoSpadden. The appellees, John H. Norwood and W. H. Norwood, partners in the practice of law under the name of Norwood & Norwood, filed their bill of complaint against the appellant, John R. Coffey, as administrator of the estate of John B. Coffey, deceased, and, also, against the widow and heirs of said decedent.

Heard before the Hon. John A. Poster. When this case came up on appeal to this court before (77 Ala. 278), it stood on the original bill as then amended, as a bill by the appellees, Pheiffer & Co., and other creditors of one S. J. Seals, to set aside as fraudulent, two conveyances by said Seals — the one a deed of gift of certain lands to his wife, Mrs. E. C. Seals, the appellant, and the other a general assignment to W. A. Weldon, the father of appellant, as trustee for the…

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellees, W. B. Galbraith & Co., against the appellants, Win. V. Chardavoyne and his wife, Lavinia Chardavoyne, and their son, Edward Chardavoyne, and prayed for the removal of the cloud from the title to a stock of goods, created by the alleged fraudulent parol sale of said stock by said Wm.

Heard before the Hon. Thomas Cobbs. The nature of the case and the material facts are sufficiently stated in the opinion. The court below rendered a decree granting the relief prayed for by the complainant, and this decree is assigned as error.

Heard before tbe Hon. Jno. A. Foster. The opinion states all tbe material facts. Tbe former appeal in this case will be found in 74 Ala. 604.

• Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellee, Virginia J. Waller, the wife of Robert B. Waller, against said Robert B. Waller and tbe appellants, William N. Knight, Eva H. Knight, Edward W. Booker and Martha K. Booker, and prayed that an account be taken and stated, charging appellee with the amount due and unpaid by her on the purchase-money of certain lands, and charging appellants, William N. Knight and Edward W. Booker, with the…

Heard before the Hon. John A. Foster. The bill in this case was filed July 28, 1882, by the appellant, Joseph S. White, against John G. Farley, and E. R. McCall, both as executor of the will of Joseph Beasley and guardian of Sarah Beasley, daughter of said Joseph Beasley, and others not necessary to mention, and sought to redeem certain lands, originally belonging to appellant, which had been sold at execution sale, Oct. 6, 1873, and at mortgage sale, Dec. 13, 1873.

Heard before the Hou. N. S. Graham. The facts are stated in the opinion. When a trust rests upon an agreement, the agreement must be in writing and signed by the party creating or declaring the trust. — Code of 1876, § 2199; Patton v. Beecher 62 Ala. 579.

Heard before the Hon. John A. Foster. The bill in this case was filed by appellee, George N. Buchanan, against Jane F. Cosby, the widow of A. Y. Cosby, deceased, and the executrix of his will and devisee thereunder. The material facts, under the view of the case taken by this court, are stated in the opinion. The defeasance must be contemporaneous with the mortgage, unless supported by a new consideration. — 2 Brick. Dig., 272, § 321.

Tried befere the Hon. H. A. Sharpe. The indictment in this case charged that the defendants, Nancy J. Parsons and Joe Parsons, unlawfully and with malice aforethought killed Bennett Parsons by shooting him with a gun. When the said cause was called for trial, the defendants objected to being put upon trial, on the ground that a list of jurors summoned for their trial, had not been delivered to them.