Volume 83 — Alabama Reports

From tie Circuit Court of DeKalb. Tried before tbe Hon. John B. Tally.

From tbe Circuit Court of Elmore. Tried before the Hon. John Moore. Tbe defendant in tbis case, Jesse T. Fallin, was indicted for the murder of Boss Powell, by striking him with a hoe; was tried on issue joined on.tbe plea of not guilty, convicted of murder in tbe second degree, and sentenced to tbe penitentiary for tbe term óf ten years. On tbe trial be reserved a bill of exceptions, which shows all the points here presented for revision.

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

From tbe Circuit Court of Pike. Tried before tbe Hon. Jno. P. Hubbard. Tbe defendant in tbis case, Guy Williams, was indicted for tbe murder of Frank Berry, “by striking bim witb a stick;” was tried on issue joined on the plea of not guilty, convicted of manslaughter in the first degree, and sentenced to the penitentiary for the term of five years.

From the City Court of Montgomery. Tried, before tbe Hon. Thos. M. Arrington. Tbe defendant in tbis case, Tarleton Steele, a freedman, was indicted for tbe mnrder of Lou Anderson “by striking ber with, an axe-helve;” was tried on issue joined on tbe plea of not guilty, convicted of murder in tbe first degree, and sentenced to be banged.

From the Circuit Court of Pike.- Tried before the Hon. John P. Hubbarb. The defendant in this case, Giles Smith, was indicted for an assault on Wash Thompson, with the intent to murder him ; was found guilty as charged, and sentenced to hard labor for the county for the term of two years.

From the City Court of Mobile. Tried before the Hon. O. J. Semmes. Indictment against Charles Chastang, for carrying a pistol concealed about the person; plea, not guilty.

From the Circuit Court of Chambers. Tried before the Hon. John Moore. The defendant in this case, Hal Bampey, was indicted for the murder of Allen Harris, by shooting him with a pistol; was convicted of murder in the second degree, and sentenced to the penitentiary for the term of forty years.

From tbe Circuit Court of Marengo. Tried before tbe Hon. Wm. E. Clarke. Tbe defendant in this case, Edwin J. Brown, was indicted for tbe murder of David S. Jordan, by shooting bim witb a pistol; was tried on issue joined on tbe plea of not guilty, convicted on tbe second trial, as shown by the present record, of manslaughter in tbe first degree, and sentenced to bard labor for tbe county for eighteen months.

From tbe Criminal Court of Jefferson. Tried before tbe Hon. S. E. Greene. Tbe defendant in tbis case, Bob Burger, a freedman, was indicted for tbe larceny of a borse, tbe personal property of Henry Glenn (or Green, as tbe name is also written in tbe transcript); was tried on issue joined on tbe plea of not guilty, convicted, and sentenced to bard labor for the county for two years.

From the City Court.of Montgomery. Tried before the Hon. Thos. M. Arrington. • The indictment in this case charged that the defendant, Will Barnett, a negro man, forcibly ravished Lydia Bryant, a white girl. The defendant pleaded .not guilty, and was tried on issue joined on that plea; being convicted by the jury, and sentenced to the penitentiary for life.

From the City Court of Mobile. Tried before the Hon. O. J. Semmes. The indictment in this case charged the defendant, Bobert McDonald, with the forgery of an order in writing, which, as set out in the indictment, was dated April 18th, 1887,, addressed to Brisk & Jacobson, purported to be signed by F. Kuppersmith, and was in -these words: “Please let the bearer, Harry Cohen, have a suit of clothes for $15, and a shirt and suit of under-clothes, and charge to” said Kuppersmith.

From tbe Circuit Court of Escambia. Tried before tbe Hon. John P. Hubbard. Tbe indictment in tbis case charged tbat tbe defendant used abusive, insulting, or obscene language, near tbe dwelling-bouse of Freeman McNeill, in tbe presence and bearing of tbe female members of bis family.

From: the Criminal Court of Jefferson. Tried before the Hon. S. E. Greene.

<p>Erom: the City Court of Montgomery.</p> <p>Tried before the Hon. Thos. M. Arrington.</p> <p>cited Johnson v. State, 75 Ala. 7.</p> <p>cited Collins v. State, 70 Ala. 19; Jacobsonv. State, 55 Ala. 151.</p>

<p>From the Comity Court of Macon.</p> <p>Tried before the Hon. "W. H. Hurt.</p>

From the City Court of Montgomery. Tried before the Hon. Thos. M. Arrington. The indictment in this case charged, in a single count, that Robert W. Kidd and Charles S. Gammell feloniously took and carried away, from the person of one Jim Jackson, sixteen silver dollars, currency of the United States. The defendants pleaded not guilty, but were convicted of petit larceny, and fined $100 each.

<p>From the Circuit Court of Butler.</p> <p>Tried before the Hon. John P. Hubbard.</p> <p>cited Code, §§ 4139, 4666; 1 Bish. Crim. Pro., | 185; 1 Bish. Crim. Law, §§ 289-91, 301; 1 Hale’s P. C. 43; Duncan v. State, 6 Humph. 148; Carter v. State, 55 Ala. 181; Gordon v. State, 52 Ala. 309; 2 Cooley’s Bla. Com. §§ 4, 5.</p>

From the Circuit Court of Greene. Tried before the Hon. S. H. Sprott.

From the Circuit Court of St. Clair. Tried before the Hon. Leroy F. Box. — Baffling was not a misdemeanor at common law. — 2 Bish. Crim. Law, 506; 3 Ala. 735. It has been often licensed by law, and has never been expressly prohibited or punished. It is sanctioned by public opinion, and is practiced by churches and charitable associations.

Erom the Circuit Court of. Cherokee. • Tried before the Hon. James Aiken. The defendant in this case was indicted for disturbing religious worship, pleaded not guilty, was convicted, and fined twenty dollars.

From the Circuit Court of Jackson. Tried before tbe Hon. John B. Tally. ■ Tbe indictment in tbis case charged, in a single count, “that tbe Nashville, Chattanooga & St. Louis Railway Company did, on tbe 2d day of August, 1887, employ James Moore as train-conductor on its road in Jackson county, in tbe State of Alabama; said Jameé Moore, at tbe time of such employment by said railway company, not possessing a certificate of fitness for such train-conductor, in so far as color…

Erom the County Court of Hale. Tried before the Hon. Jas. M. Hobson. The indictment in this case charged, in a single count, that Bob Jackson and Willie Hopkins “ did unlawfully or wantonly kill á horse, the' property of Jake Cowan.” Jackson, being on trial alone, pleaded not guilty, but was convicted, and fined $300.

<p>Prom the Circuit Court of Cherokee.</p> <p>Tried before the Hon. John B. Tally.</p>

From the Circuit Court of Conecuh.. Tried before tbe Hon. John P. Hubbard. The indictment in this case contained but a single count, wbicb charged tbe defendant witb tbe larceny of a bog, “tbe personal property of some person whose name is to tbe grand jury unknown;” and tbe trial was bad on issue joined on tbe plea of not guilty.

Erom tbe City Court o£ Montgomery. Tried before tbe Hon. Thos. M. Arrington.

<p>Appeal from the Circuit Court of Madison.</p> <p>Tried before tbe Hon. Henby C. Speake.</p> <p>cited Cooley on Taxation, 292 — 3; New England M. S. Co. v. Board of Revenue, 81 Ala. 110; Oakland v. Whipple, 44 Cal. 303; Railroad Co. v. Belvidere, 35 N. J. 584.</p> <p>cited Pope v. Lewis, 4 Ala. 487; Jordan v. State, 15 Ala. 746; Luke v. Calhoun Co., 56 Ala. 415; Broughton v. Bank, 17 Ala. 828; Cooley on Taxation, 18, note; Ross v. Lane, 11 Miss. 695; French v. State, 53 Miss. 651; Abbott v. Britton, 23 La. Ann. 511; Murían v. Sheeth, 5 Ind. 35; 57 Ind. 96.</p>

<p> Indictment for Murder. </p> <p> Application for Habeas Corpus. </p> <p>1. Construction of statutes in Code. — In the construction of statutory provisions' which haVe been embodied in the Code, the court will examine the original statute; and where two sections are inconsistent, or in conflict with each other, will give effect to the enactment of later date, as modifying or amending the former.</p> <p>(a) Punishment by imprisonment at hard labor. — Under the statute specifying and regulating punishments generally (Code, § 4450), imprisonment in the penitentiary involves hard labor for the State; when a sentence to imprisonment or hard labor is imposed, on a conviction of felony, the law fixes the place of punishment; the duty of imposing it is reposed in the presiding judge, and the discretion of the jury extends only to fixing the term.</p> <p>(b) Manslaughter in first degree; punishment of; sufficiency of verdict. A verdict finding the defendant guilty of manslaughter in the first degree, and fixing the punishment at “thirty months hard labor” (Code, §§ 4303, 4450), authorizes and requires a sentence to the penitentiary for that term.</p> <p>2. Defective or- irregular verdict; jeopardy a second time. — The discharge of the jury in a criminal case, without consent, and without legal necessity, before they have rendered a verdict, operates as an acquittal, and the defendant can not be again put on trial; but an irregular or defective verdict, such as will compel a reversal of the judgment, does not entitle him to a discharge, nor operate as a bar to a second trial after the reversal.</p> <p>3. Cross-examination of witness as to former statements under oath. When the testimony of a witness, on the preliminary examination of the defendant before a committing magistrate, was reduced to writing and subscribed by him, and the deposition is in court on the trial, he can not be cross-examined as to the statements then made by him, without allowing him to hear or read the deposition; and the rule is the same, whether the purpose of the cross-examination is to impeach him, to test the accuracy of his recollection, or to refresh his memory.</p> <p>4. Opinion and testimony of medical expert. — When the defense of insanity is interposed in a criminal case, a practicing physician may be asked his opinion, as a medical expert, on a similar case hypothetically stated; but, where the evidence is conflicting, both as to the facts in proof and the opinions of experts as to the condition of the defendant’s mind at the time of the homicide,' he can not be allowed to state his opinion, on the whole evidence, as to the condition of the defendant’s mind, since that would usurp the functions of the jury.</p> <p>5. Insanity as defense ; measure of proof. — Insanity, when interposed as a defense in a criminal case, must be established to the satisfaction of the jury by a preponderance of the evidence; and a reasonable doubt arising from a consideration of all the evidence, either as to the fact of insanity, or the causal connection between it and the criminal act, does not authorize an acquittal.</p> <p>6. Charge as to sufficiency or weight of evidence; opinion of medical expert. — TIow. much weight is to be given to evidence legally admitted, is a question going to its sufficiency, and is one purely for the jury, except where the general affirmative charge may properly be given;' and th erefore, wheie the opinion of a medical expert has been admitted, based on facts hypothetically stated, which vary somewhat from the facts proved on the trial, a charge instructing the jury that, in consequence of this variance, his opinion “is entitled to but little weight,” is properly refused.</p> <p>7. Insanity resulting from intoxication. — Mental disorders can not be regarded as evidence of insanity proper, such as exculpates from legal responsibility, “unless they are caused by, or result from disease, or lesion of the brain;” and this may result, as a secondary or remote consequence, from habits of intoxication, or the excessive and protracted use of alcoholic stimulants; but “there is a species of insanity, or mental unsoundness, manifested by a temporary depression or aberration of mind, which sometimes attends or follows intoxication, and is often accompanied by delusions, hallucinations and illusions, which are said to be ‘insane delusions,’ but do not constitute such insanity as confers legal irresponsibility for crime.”</p> <p>(a) Charge misleading jury. — A charge asked in a criminal case, which uses the ambiguous terms, “fit of mania” and .“insane delusions,” as an excuse for crime, not distinguishing between those which are and those which are not evidence of insanity proper, tends to mislead the jury, and is properly refused. •</p>

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

<p>Erom the Circuit Court of Sumter.</p> <p>Tried before the Hon. S. H. Sprott.</p> <p>cited Bish. Grim. Law, voL 2, §§ 333, 352; Hinderer v. The State, 38 Ala. 415; Clark’s Crim. Law, § 1053.</p>

The petitioner in this case, Andrew J. Dykes, having been, arrested on a charge for the murder of one Frank Lewis, made application by petition, addressed to Hon. O. J. Semmes, judge of the City Court of Mobile, for discharge - or admission to bail on writ of habeas corpus. On the evidence adduced, Judge Semmes remanded the prisoner to jail without bail.

Appeal fi-om the Circuit Court of Lee. Tried before the Hou. J. M. Carmichael. This action was brought by James K. 0. Sherwood, against John P. Alvis and others, to recover the possession of a quarter-section of land particularly described in the complaint, with damages for its detention; and was commenced on the 6th October, 1887.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 6th May, 1884, by B. E. Garland, against E. H. Watson; and sought to set aside a sale of a tract of land by said Watson, a.t which he himself became the purchaser, and to redeem the land from the mortgage under, which the sale was made. The complainant died pending the suit, and it was thereupon revived in favor of his administrator and heirs at law.

Tried before the Hon. Henry C. Speaks. . This was a contest of the right to a homesteafl exemption in and to a house and lot in the town of Cullman, between Vm. L. Whitlock, plaintiff in execution and contestant, and Charles A. Beckert, defendant and claimant.

Tried before the Hon. S. H. Sprott. The appellee in this case, H. M. Baldwin, recovered a judgment on the 2d October, 1878, against John A. Harkness ; and sued out a garnishment on it, on 27th December, 1884, against James B. Head, as administrator of the estate of Vm. B. Harkness, deceased, who was the father of said John A. Harkness.

<p> Bill in Equity to establish Besulting .Trust in Lands. </p> <p>1. Resulting trust arising from payment of purchase-money. — A resulting trust in lands will be declared in favor of the person who paid the purchase-money, the legal title being taken in the name of another, when the evidence of such payment is, as here, full, clear, and convincing.</p> <p>2. Same; when declared against judgment creditor. — A resulting trust in lands can not be established in favor oí the person who paid the purchase-money, as against a judgment creditor or purchaser for valuable consideration without notice (Code, § 2200); but possession by the claimant of such equity is equivalent to constructive notice, and as effectual for that purpose as the registration of a legal title would be.</p>

Appeal Horn the Circuit Court of Mobile. Tried before the Hon. Vi. E. Clarke. This action was brought by Odyle Eslava against Bichard E. Jones, the clerk of the Circuit Court, and was commenced on the 4th November, 1884. The complaint claimed damages for the defendant’s alleged negligent and wrongful act in issuing a writ of venditioni exponas, under which the sheriff sold a certain lot or parcel of land.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 7th September, 1883, by William B. Larkin, as a judgment creditor of Lemuel H. Lewis, against the said Lewis, and against the personal representative, widow and children of Lemuel G. Mead, deceased; and sought, principally, to subject to the satisfaction of complainant’s said judgment a tract of land, called the “Outerbridge tract,” which Lewis had conveyed to Mead in his life-time, in alleged…

Tried before the Hon. J. M. Carmichael. This action was brought by W. L. Scaife, against Henry Woodruff, as a member of the partnership of Woodruff & Howard, to recover the 'sum of $155, alleged to be due by account for medicines and medical services furnished by plaintiff, during the year 1884, to the laborers and tenants employed on a plantation which belonged to said Woodruff and T. O. Howard, and which was cultivated by them as partners during that year.

Appeal, from the Circuit Court of Russell. Tried before the Hon. J. M. Carmichael. This action was brought by William L. Tillman, against J. M. DeLacy, to recover damages for the conversion of a steam-engine; and was commenced on the 29th September, 1884. On the first trial, there was a verdict and judgment for the defendant; but the judgment was reversed by this court on appeal, and the cause was remanded. — Tillman v. DeLacy, 80 Ala. 103-07.

Tried before tbe Hon. John B. Tally. Tbis was a contested claim of homestead exemption, between Hall, Hooper & Co., plaintiffs in execution against Anderson Dicus, and tbe said Dicus as claimant. Tbe court ruled against tbe claim, and ordered tbe land to be sold; to wbicb ruling and judgment tbe defendant excepted, and be bere assigns it as error. cited Thompson on Homesteads, §§ 101, 102, 103, 105, 106; Gregg v. Bostioich, 33 Cal. 220.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 27th December, 1879, by James Wells, as the administrator of William Wells, deceased, against Joseph A. Brown, as the surviving partner of the late firm of Brown & Wells; and sought an account and settlement of the affairs of the said partnership.

Tried before the Hon. J. M. Carmichael. The appellant in this case, S. H. Hill, was a member of the firm of Kennon & Hill, in whose name a judgment was recovered before a justice of the peace, on the 6th October, 1883, against J. H. Blalock and Elizabeth Blalock.

Heard before the Hon. John A. Poster. The' original bill in this case was filed on the 25th August, 1885, by “William Dowty, a minor under the age of fourteen years, and Cybele Sandford, a lunatic, both suing by William Sandford as their next friend, and said William Sandford; against John W. Hall as administrator de bonis non of the estate of Stephen Dowty, deceased, and George Brown, W. W. Jones, Duval W. Weeks, Henry Dietrich, and Chess Corley & Co., a partnership or…

<p> Contested Claim of Homestead, Exemption. </p> <p>1. Nonsuit by plaintiff. — Wliena claimof homestead exemption is contestedby the plaintiff in execution, but the sheriff fails to give notice of the contest to the defendant (Code, §§ 2884,2886, 2838), the contest is not at issue at the next ensuing term of the court, unless the defendant waives such want of notice; and if he refuses to waive it, only appearing to claim a judgment against the plaintiff, he can not complain that plaintiff is allowed to take a nonsuit.</p>

<p>Appeal from the Chancery Court of Jackson.</p> <p>Heard before the Hon. S. K. MoSpabden.</p>

<p> Action by Purchaser, for Breach of Contract of Bale. </p> <p>I. Damages to purchaser, on non-delivery of goods ; custom. — On the breach of a contiart for the sale and delivery of a quantity of bulk-meat, the seller residing and doing business in the city of Chicago, and the purchaser in Opelika, Alabama, the damages the purchaser is entitled to recover, for the part not delivered, is not the market price at Chicago, but the price at Opelika; but, when the contract is silent as to the measure of damages, this rule’may be varied by a general custom of trade.</p>

<p>Appeal from the Circuit Court of Chambers.</p> <p>Tried before the Hon. Jas. E. Cobb.</p>

Tried before the Hon. John Moore. This was a motion by Bobert D. George to set aside a sale of certain lands under execution against him, in favor of D. W. Block, which were bought at the sale by Sol. D. Block.

Tried before tbe Hon. S. H. Spbott. This action was brought by Orr Brothers, merchants and partners, doing business in Nashville, Tennessee, against Roddy B. Rabitte and Frank R. Gaudin, individually, and as partners composing the firm of Rabitte & Gaudin, which firm was engaged in business in Tuskaloosa; and was commenced on the 26th January, 1886.

<p>Appeal from the Circuit Court of Cullman.</p> <p>Tried before the Hon. H. C. Speake.</p>

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 11th July, 1885, by W. H. Boper and others, members of the Stone Street Baptist Church (colored) of Mobile, and also of two charitable associations organized among the members of said church, called the “Belief Treasury of the Stone Street Baptist Church,” and the “New Relief Treasury” of said church; against Benjamin Burke, the pastor of said church, Hal Campbell and others, trustees of said…

Tried before tbe Hon. J. M. Carmichael. This action was brought by John R. Caldwell, against tbe appellant, a domestic raib’oad corporation, to recover damages for tbe negligent killing of an ox, tbe property of plaintiff, by a moving train of cars belonging to tbe defendant; and the trial was bad on issue joined on tbe plea of not guilty.

<p> Action against Railroad Company, as Common Carrier, for Loss of Goods. </p> <p>1. Variance; loss of goods, and delivery in damaged condition. — Under a complaint in the form prescribed for the non-delivery of goods by a common carrier (Code, p. 703, Form No. 1,3), a recovery can not be had on proof that the goods were delivered in a damaged condition.</p> <p>2. Same; liability as common carrier, and as warehouse-man. — A recovery can not be had against a railroad company as a common carrier, for the loss of goods, or damage to them, when the evidence shows that, at the time of the loss or injury, the liability as a carrier liad terminated, and the goods were in the defendant’s custody only as a warehouse-man.</p>

Heard before the Hon. John A. Foster. . The bill in this case was filed on the 16th September, 1885, by E. S. Jaffrey & Co., on behalf of themselves and other judgment creditors o£ John McGough, against him, his wife, and their three sons; and sought to set aside, on the ground of alleged fraud, a conveyance of a large tract of land, executed by said McGough to his wife and children, on the 9th November, 1883, in consideration of his alleged indebtedness to each of them.

Tried before the Hon. John P. Hubbard. This action was brought by Thomas M. Barnett, against J. B. Warren, who was doing business in Montgomery as a merchant under the name of J. B. Warren & Co.; and was commenced on the 2d November, 1886. The complaint contained only the common counts, claiming $400 for money had and received, &c.; and the only plea was the general issue.

Tried before the Hon. J. M. Carmichael. ¿ — This action was brought by Sterling J. Foster, against J. W. Martin; and was founded on the defendant’s promissory note for $2,000, dated at Montgomery, June 5th, 1882, and payable to the order of the plaintiff, one day after date. The defendant pleaded, “that the note sued on is without consideration, and therefore void;” and the cause was tried on issue joined on this plea.

<p> Action against Husband and Wife, for Necessary Family Supplies Sold and Delivered. </p> <p>1. Hom.estead exemption; when claimed by wife, or waived. — In an action against husband and wife, on an account for necessary family supplies sold and delivered (Code, § 2711), a claim of homestead exemption by the wife, if not interposed before the rendition of judgment, in which is incorporated an order for the sale of her lands as described in the complaint, will be held to have been waived.</p>

Heard before the Hon. Trios. W. Coleman. . The original bill in this case was filed on the 21st March, 1884, by Wells J. Bray, as receiver of the insolvent People’s Bank, under appointment of the Chancery Court, against G. L. Comer, as administrator of the estate of Henry C. Hart, deceased, and the widow and heirs of said Hart; and sought the foreclosure of two mortgages, which said Hart in his life-time had executed to said bank, of which he was at the time the president.

<p>Appeal from the Circuit Court of Leó.</p> <p>Tried before the Hon. J. M. Carmici-iael.</p> <p>This action was brought by.- Georgia Ann <Jordan, against J. J. Green and Mrs. C. J. Hdoper, to recover the possession of a parcel of land, with damages for its detention; and was commenced on the 2d August, 1884. The land was described in the complaint as “the east half of the north half of the east half of the south-west quarter of section twelve, township nineteen, range twenty-six, excepting two acres in the south-east corner, containing eighteen (18) acres, more or less.” The defendants demurred to the complaint, on the ground that “the description of the land sued for is vague, uncertain, and indefinite;” and their demurrer being overruled, they pleaded not guilty. On the trial, as appears from the bill of exceptions, the plaintiff claimed title under, a conveyance to her from Stephen Holman, which was dated the 21st September, 1871, and recited the payment of |540 as its consideration; and another deed from said Holman, dated August 15th, 1884, after the commencement of the suit, which was executed for the purpose, as therein alleged, of correcting a mistake in the description of the land contained in the former deed. The defendants were in possession at the commencement of the suit, and at the date of this last deed to the plaintiff; and their claim of title was derived in this way: In 1878, J. J. Green, one of the defendants, commenced a suit by attachment against said Holman, as a non-resident, and the attachment was levied on said tract of land,.with the other half of the forty-acre tract; and judgment by default being rendered in May, 1879, the land was sold by the sheriff under execution, and a conveyance executed to said Green and Geo. W. Hooper as the purchasers. This judgment was set aside, on motion of said Holman, in November, 1881; but the purchasers at the execution sale continued in possession of the land until the death of said George W. Hooper, which occurred in July, 1883; and after his death, his widow (Mrs. C. J. Hooper) and said J. J. Green ' continued in possession of the land until this action was brought against them. The plaintiff proved her possession of the' land for several years, under the deed of September 21st, 1871, and until her tenants were dispossessed by Green and Geo. W. Hooper, as purchasers at the sheriff’s sale; and she offered in evidence both of the said deeds from Holman to .her. In the first deed, the land was described as the soidh half of the forty-acre tract; and the. defendants objected to its admission as evidence, oh account of this variance, duly excepting to the overruling of their objection. They also objected to the admission of the second deed as evidence, because it was executed after the commencement of this suit, and while they were in the adverse possession of the land; and they duly excepted to the overruling of these objections. . The defendants offered in evidence, also, the record of a chancery suit instituted by said Green and Geo. W. Hooper, after their purchase at sheriff’s sale, against the complainant; in which they sought to set aside on the ground of fraud, and for want of consideration, as clouds on them title, Holman’s said deed of September 21st, 1871, and a subsequent deed dated February 14th, 1876, in which the tract of land was correctly described; in which suit they obtained a decree setting aside the latter deed, but relief was refused as to the former deed. The dates of these several conveyances, and of the transactions mentioned, as copied in the transcript, are very confused, and may be incorrectly stated here. The plaintiff offered in evidence the deposition of said Stephen Holman, taken on. interrogatories, who mentioned the several conveyances above referred to, and others under which he acquired the land, and stated the circumstances under which they were executed; and the defendants excepted to the admission, against their objections, of each part of his deposition relating to any part of these conveyances, unless the deeds were ■ produced. The plaintiff offered in evidence, also, several receipts of the tax-collector for the taxes on the land, from 1871 to 1879, both inclusive: and these receipts were admitted as evidence, against the objection and exception of the defendants. These rulings of the court on the evidence, with several charges given, and the refusal of several charges asked, are now assigned as error.</p> <p>cited Wilson v. Glenn, 68 Ala. 383; Tyler on Ejectment, 72-3; Wilkinson v. Roper, 74 Ala. 140; Ridgioay v. Glover, 60 Ala. 181; 48 Mo. 219.</p>

Heard before tbe Hon. Thos. Cobbs. Tbe bill in tbis case was filed on tbe 14tb July, 1885, by tbe beirs of James M. Ingram, deceased, suing by D. S. Curry as tbeir next friend, against Emory B. Peebles and W. B. Peebles, as tlie heirs and personal- rejuesentatives of their deceased father, William B. Peebles; and sought to review and reverse for prrors apparent a decree rendered in a former cause in said court, and to set aside a sale of lands in that case, at which said…

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 31st January, 1885, by Lewis L. Taylor, suing by next friend on the ground that he was non compos mentis, against Luther Patillo; and sought to set aside a conveyance of land which he had executed to the defendant, and an account of other business transactions between them, on the ground that the defendant, knowing Ms mental incompetency, had defrauded Mm.

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 26th February, 1887, by Rosina Futterer (nee Spuller) and others, legatees under the will of Stephen Spuller, deceased, against Corinne P. Girard and Ernest Girard, grandchildren of Mrs. Julia Spuller, who was the wife of said Stephen; and sought to enforce payment of the complainants’ legacies, as a “charge and lien” on certain real estate, which had belonged to the said Stephen Spuller at the…

Tried before the Hon. H. A. Sharp. This action was brought by Nat. L. Yarbrough against the appellant, a domestic corporation, to recover damages for personal injuries sustained by plaintiff, from the alleged negligent acts of the defendant’s agents and servants, whereby plaintiff was struck by the revolving lever and bucket of a steam shovel, and knocked from the train on which he was standing, breaking’his arm, andinflicting other injuries.

Tried before the Hon. Thos./M. Arrington. This action was brought by Lehman, Durr & Co. against Haden & Eloyd, and was founded on the defendants’ promissory note for $140, which was dated January 29th, 1886, payable November 1st next after date, to. the order of B. J. Logue, “at Matthews, Ala., value received, for rent of part of Hastings’ place;” which was indorsed in blank by said Logue, and also by Belser & Parker. The plaintiffs sued as the indorsees of the note.

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 3d August, 1886, by Mrs. Gertrude L. Prince, against Mrs. C. LaT. Crampton, her husband, O. L. Crampton, and F. A. Luling; and sought to enforce a vendor’s lien oil certain real estate in the city of Mobile, for a balance of purchase-money due and unpaid, as evidenced by Mrs. Crampton’s promissory note for $150.

Tried before the Hon. John B. Tally. This action was brought by Amanda E. Cheney against James A. Hess, and was founded on the defendant’s promissory note for $1,500, which was dated November 2d, 1882, payable to the plaintiff, or order, on the 25th December, 1883, and recited on its face that it was given “in part payment for a tract of land purchased from her this day, situated on the south side of the Tennessee river, in Jackson county, Alabama, and fully described in her…

Heard before the Hon. John P. Hubbard. This action was brought by W. S. Jernigan, against Smith, Poley & Co., who were sued as a partnership, the names of the individual partners being nowhere stated; and was commenced in a justice’s court, on the 5th June, 1886.

Tried before tbe Hon. H. C. Speake. This action was brought by Andrew S. Stanley and Edward P. Miller, suing as partners under the firm name of A. S. Stanley & Co., against the Sheffield Land, Iron and Coal Company, a private corporation; and was commenced on the 21st July, 1884.

Heard before the Hon. Ti-ios. W. Coleman. The bill in this case was filed oil 1st October, 1880, by Fannie M. Greer and Anna Greer, children of John H. Greer and his deceased wife (Anna C.), against James H. Simms, W. C. Simms, and the said John H. Greer; and sought to restrain the commission of waste by said James H. and W. C. Simms, on certain lands of which they were in possession, and which had belonged to the complainants’ mother; and to . cancel a deed which said James…

Tried before tbe Hon. James W. Lapsley. This action was brought by Joseph L. Hinson, against William W. Leslie, to recover damages for the unauthorized sale and conversion by the defendant of several bales of cotton, on which plaintiff had an unsatisfied mortgage; and was commenced on the 21st March, 1887.

<p>Appeal from the Circuit Court of Coosa.</p> <p>Tried before tbe Hon. Jas. W. Lapslev.</p>

<p> Action on Detinue Bond. </p> <p>1. Condition of detinue bond, and breach thereof; issue as to payment of mortgage debt. — The condition of a forthcoming bond, executed by the plaintiff in detinue, or the statutory action for the recovery of personal property in specie (Code, §§ 2944-5), is not broken, unless he fails in the suit, and fails to deliver the property within the time prescribed, and to pay the damages and costs; and where the action is founded on a mortgage, and the amount due on the mortgage debt is put in issue (Sess. Acts 1882-3, p. 31), if the balance found due is less than the value of the property as assessed by the jury, the failure to deliver the property to the defendant, on tender or payment of this balance, with costs, is not a breach of the bond, (Changed by statute, Code of 1886, § 2720.)</p>

H. A. Sharpe. „„-The bill in this case was filed on the 29th April, 1887, by the .Louisville & Nashville Bailroad Company, a corporation doing business in this State, against F. W. Miller and Bichard E. Jones, Jr.; and sought to rescind, on the- ground of fraud and collusion, a contract for the sale of lands between said Miller, acting as agent and attorney in fact of the complainant, and said Jones as purchaser; and also to reform, on the ground of mistake, the power of…

Tried before tbe Hon. H. C. Speaks. In tbe matter of certain summary proceedings instituted by tbe corporate authorities of tbe city of Huntsville, for opening a new street tbrougb lands belonging to Jobn A. Faust and Ms wife, and for' assessing tbe damages thereby caused to tbeir property; on tbe petition of said Faust and wife for a writ of certiorari to revise and quasb tbe proceedings, on tbe ground tbat tbey were irregular, illegal, unauthorized and void.

<p> Action on I’romissory Note, by Payee against Maher. </p> <p>1. Action against non-resident. — Every country has jurisdiction, for the purposes of actions transitory in their nature, over all persons found within its territorial limits; and when a non-resident is found here, not having been fraudulently induced to come, and is personally served with process, his non-residence is no defense to the action.</p>

<p> Bill in Equity for Rescission of Contract. </p> <p>1. Rescission of contract of compromise, on ground of fraud. — A court of equity may rescind, on the ground of fraud, an agreement in compromise and settlement of a pending suit; but the allegations of fraud in this case being denied by the answers, and unsupported by the evidence, the bill was properly dismissed.</p>

From; the Circuit Court of Pike. Tried before the Hon. John P. Hubbard.

Tried before the Hon. H. A. Sharpe. This action was brought by John Hayes, against William Robertson and Matt. Eulks, to recover the possession of a tract of land, particularly described in the complaint, with damages for its detention; and was commenced on the 15th January, 1887. The defendants pleaded not guilty, and issue was joined on that plea.

Appeals from the Chancery Court of Colbert. Heard before the Hon. Thos. Cobbs. In these cases, two bills were filed against the Sheffield & Tuscumbia Street Railway Company, a private corporation, and the city of Tuscumbia, a municipal corporation; one on the 1st July, 1887, by E. P. Rand; and the other on the 16th July, 1887, by J. B. Moore.

Tried before the Hon. Jesse M. Carmichael. This action was brought by the appellants, suing as partners, against William Smith and Sarah E. Smith, who were husband and wife, but were not so described in the summons, nor in any part of the complaint except the special count.

Tried before the Hon. H. C. Speake. In the matter of proceedings instituted by J. S. Steele, by petition addressed to the County Commissioners Court, asking the establishment of a private road from his own land, through lands belonging to A. W. Crowson, into the public road.

Tried before tbe Hon. John B. Tally. This action was brought by liobert Thomas, against Henry Whitworth and Mrs. Tabitha Whitworth (now Latham), to recover a mule, with damages for its detention; and was commenced on the 23d June, 1884. On the trial, numerous exceptions were reserved by the defendants to the rulings of the court on evidence, and these rulings are here assigned as error.

Tried before the Hon. Jesse M. Carmichael. The appellees in this case, as suing partners, obtained a judgment in a justice’s court, on tbe 7th January, 1881, against Jacob Broda; and an execution on this judgment was issued on the same day, and levied on a small lot of goods, consisting of shoes, sheeting, &c., found in the store in which Broda had then lately been carrying on business.

Tried before the Hon. John Moore. This action was brought by John E. Maull against Absalom Eiland, to recover damages for the breach of a written contract, which, as set out in the amended complaint, was dated January 4th, 1882, signed by both of the parties, and in these words: “This agreement, entered into between J. E. Maull and A. Eiland this day, is to this effect: That in consideration of $500, the said Eiland sells to J. E. Maull all the timber on his land large…

Heard before the Hon. John A. Foster. The bill in this case was filed on the 2d June, 1884, by Mrs. Carrie Wright, a married woman, suing by her next Mend, against D. G. Dunklin and Thomas J. Burnett, as administrators of the estate of Francis M. Burnett, deceased, who was the complainant’s father; and sought to compel an account and settlement of their administration.

Tried before the Hon. James W. Lapsley. This action was brought by Allen & Trammell, suing as partners, against Joseph 0. Turnham; and was founded on the defendant’s promissory note for $500, which was dated the 6th December, 1873, and payable twelve months after date, to J. N. Brisby (Brisky), by whom it was indorsed and transferred to plaintiffs.

Tried before tbe Hon. John P. Hubbard. Tbis action was brought in tbe name of Pike County, against W. S. Coleman and others, as sureties on tbe official bond of J. F. Tyler, deceased, as county treasurer of said county; and was commenced on tbe 6th September, 1886. Tbe bond was dated the 18th August, 1884, and conditioned as prescribed by law.

<p> Attachment, against Non-Resident. </p> <p>1. Recitals and proof of notice. — To sustain a judgment by default against a non-resident defendant, who was not personally served with notice, the suit being commenced by attachment, the record must show that proof was made to the court of all the facts necessary to constitute constructive notice by publication (Code of 1886, § 2936); and a mere recital in the judgment-entry, that the plaintiff ‘‘ made proof of due and legal service on the defendants Of the issue and levy of the attachment in this case,” not stating the facts, is not sufficient to sustain the judgment on appeal.</p> <p>2. Ex-parte affidavit. — An ex-parte affidavit copied into the transcript, . made by the plaintiff’s attorney, as to the facts necessary to show constructive notice by publication against a non-resident defendant, can not be considered by this court for any purpose, when it is not referred to in the judgment-entry, nor made part of the record by bill of exceptions or otherwise.</p>

Tried before the Hon. James W. Lapsley. This action was brought by the appellants, non-resident merchants and partners in trade, against J. M. Shaw & Co., who were engaged in keeping a livery-stable at Goodwater, and who were sued as common carriers, to recover damages for injuries to a quantity of goods, hardware samples, which were contained in a trunk in charge of plaintiffs’ agent, a travelling salesman, while travelling in a wagon and team hired Norn defendants, and…

Tried before the Hon. John P. Hubbard. This action was brought by Mrs. P. A. Clanton, against John H. Englehardt and W. E. Englehardt, “partners in trade doing business under the name of J. H. Englehardt,” to recover $J5, with interest, which the plaintiff had paid for painting the roof of her house with a preparation called the “Mott Fire-Proof Paint.” The work was done in September, 1883, and the action was commenced on the 14th October, 1886.

Tried before the Hon. S. H. Sprott. This action was brought by E. B. B. Thomas & Sons, suing as partners, to recover damages for injuries to cattle received by the defendant, as a common carrier, at Epes’ Station on its road, on the 29th April, 1886, to be delivered to O. C. Thomas, at New Orleans; the complaint alleging that “the cattle were bruised and injured while in charge of said defendant, and in route to their destination, and that said defendant was guilty of…

(1.) Tbe equity of tbe bill rested on its allegation of two distinct facts, one of wbicb was positively denied in tbe answer; and tbis denial leaving it without equity, tbe injunction ought to have been dissolved. — Rogers v. Bradford, 29 Ala. 474; Brooks v. Diaz, 35 Ala. 597; Weems v. Weems, 73 Ala. 462; Hogan v. Br. Bank, 10 Ala. 485.

■ Heard before the Hon. S. K McSpadden. The bill in this case was filed on the 20th December, 1883, by Eichard L. Campbell, as a stockholder in the Oxford Iron Company, a private corporation, against the said corporation, and against the Woodstock Iron Company, Alfred L. Tyler, and others; and sought an account and distribution of the assets of said first named corporation, whose corporate existence had (it was alleged) expired by limitation, and to hold the other…

Tried, before tbe Hon. H. C. Speake. This action was brought in the name of the State of Alabama, against pamuel D. Houston and the sureties on his official bond as tax-collector qf Lawrence county; and was commenced on the 9th November, 1883. The bond was conditioned as prescribed by the statute, and was executed and approved the 19th August, 1882.

Tried before the Hon. J. M. Carmichael. This action was brought by Terry Collins against DeKalb Jones, and was commenced in a justice’s court, on the 13th December, 1880; the cause of action being two promissory notes executed by the defendant, payable to the plaintiff, one for $50, dated in April, 1880, and the other for $15, dated the 23d June, 1880, each payable on the 1st October, 1880.

Tried before the Hon. H. C. Speake. This action was brought by Peter S. Morgan and Joseph T. Morgan, against William Famed, to recover the possession of a tract of land containing 160 acres, with damages for its detention; and was commenced on the -21st January, 1887.

• Tried before the Hon. H. A. Shabpe. This action was brought by Neil Brawley, the father of Jennie Brawley, against the appellant, a private corporation operating a railroad between Birmingham and Pratt Mines in said county, to recover damages for personal injuries to his said child; and was commenced on the 13th January, 1887.

Tried before the Hon. Leroy F. Box. This action was brought by Thomas F. Jones, as the administrator of the estate of his deceased wife, Mrs. Bebecca Jones, to recover damages of the defendant railroad company, as a common carrier, on account of personal injuries received by his' intestate while travelling as a passenger in .the defendant’s cars, which, as he alleged,, were caused by the negligence, unskillfulness, and want of care of the defendant or its servants, and…

Tried before the Hon. John P. Hubbard. This was a special action on the case, brought by Williamson Harrison against Drum & Ezekiel as partners, to recover damages for the defendants’ alleged wrongful sale and conversion of two bales of cotton, having notice of plaintiff’s statutory lien for advances, whereby his lien was lost.

Tried before tbe Hon. John P. Hubbard. Tbis action was brought by W. G. Harrison, as executor of tbe last will and testament of Williamson Harrison, deceased, against Drum & Ezekiel as partners, to recover damages for defendants’ tortious conversion, as alleged, of four bales of cotton, wbicb tbey bought from one W. G. Gaiford, and on wbicb plaintiff claimed a statutory lien as tbe landlord of said Gafford.

Tried before the Hon. John P. Hubbard. This action was brought by J. M. Henderson & Co., suing individually and as partners, against Micajah Tompkins, to recover a mule, which was described in the complaint as a “black mare mule,” with damages for its detention; and was commenced on the 10th April, 1886.

<p> Bill in Equity to enforce Vendor's Lien on Land. </p> <p>1. Stale demand; presumption of payment from lapse of time. — When lands have been sold under a probate decree, on the application of the administrator, who himself becomes the purchaser, and the sale is confirmed by the court; a bill in equity by the heirs, to enforce an alleged lien for the unpaid purchase-money, filed more than twenty years after the last installment of purchase-money became due, is demurrable on the ground of staleness, and because of the presumption of payment arising from lapse of time; and these objections are not avoided by the additional averments, that the administrator, before the lapse of twenty years, “advanced or paid to the complainants different amounts of money on their respective interests in said estate, which he now claims were payments on the land, but which, as complainants claim and charge, were made generally on their distributive interests in said estate, and should be credited proportionally on their interest in the land and in the personaltyand that the administrator “has never denied, but has always admitted, that the purchase-money of said land is due and unpaid,” except as to said advancements.</p>

Heard before the Hon. S. X. McSpadden. The bill in this case was filed on the 6th April, 1886, by George Perdue, against Newton J. Bell; and sought to have a conveyance, which was absolute on its face, declared a mortgage, and for an account and redemption.

Tried before the Hon. Jesse M. Carmichael. The appellees in this case, wholesale dealers and manufacturers of flour in the city of Montgomery, instituted a statutory action against B. J. Chitty, to recover certain barrels of flour in Ms possession; the action being commenced on the 14th October, 1884.

<p>Appeal from the Circuit Court of Bullock.</p> <p>Tried before the Hon. Jesse M. Carmichael.</p>

Heard before the Hon. John A. Foster. Tbe bill in tbis case was filed on tbe 26tb May, 1887, by Mrs. Victoria Boyleston and ber busband, Joseph C. Boyleston, against Snediker & Boynton, individually and as partner’s; and sought to enjoin further proceedings in an attachment suit instituted by tbe defendants against said J. C. Boyleston, and in a statutory claim suit for tbe property on which tbe attachment was levied, under a claim interposed by him as trustee for bis wife.

Heard before the Hon. S. K McSpadden. The bill in this case was filed on the 10th September, 1886, by the Tennessee and Coosa Rivers Railroad Company, a domestic corporation, against James Mathis and David Shields; and sought to enforce a vendor’s lien on a tract of land, for the purchase-money due and unpaid.

Heard before Hon. W. F. Mahone, register in chancery,' sitting pro hac vice as probate judge. In the matter of the estate of Josiah Bozeman, senior, deceased, on the application of T. H. Bozeman, as administrator, for an order to sell lands, on the ground that they could not be equitably divided without a sale.

Tried, before tbe Hon. John P. Hubbard. This action was brought by Irby Moody and Jane Moody, husband and wife, against Henry Stevenson and Julia Stevenson, also husband and wife, to recover tbe possession of a tract of land containing one hundred and forty acres, which was particularly described; and was commenced on tbe 3d March, 1887. Each party claimed under a deed from J. C. Kindred, who was tbe father of Mrs. Moody and Mrs. Stevenson.

Tried before the Hon. John B. Tally. This action was brought by J. M. Patrick, as administrator of the estate of Mrs. Martha Yeargin, deceased, against Thomas W. Petty, and was commenced on the'6th June, 1885.

Tried before the Hon. John P. Hubbard. . This action was brought by the Winship Machine Co., a private corporation chartered under the laws of Georgia, against J. P. Wood, M. A. Wood, and F. S. Wood, partners doing business under the firm name of J. P. Wood & Brothers.

Tried before the Hon. Jesse M. Carmichael. This action was brought by the Merchants & Mechanics’ Bank, against Renfro Brothers as partners, and was founded on a certificate of deposit, issued by the defendants as bankers, which is copied in the opinion of the court. The defendants pleaded the general issue, payment and set-off; and though demurrers were interposed to the second and third pleas, the judgment-entry only recites that the cause was tried on issue joined.

Tried before the Hon. Leroy E. Box. This action was brought by Burrell Higginbotham, against W. L. Craven and the sureties on his official bond as constable; and was commenced on the 24th November, 1886.

Heard before tbe Hon. John P. Hubbard. In tbe matter of tbe probate of an. instrument wliicb was propounded for probate as tbe last will and testament of John A. Law, by Thomas W. Law, who was therein named as executor, and was contested by William H. Law, a son of tbe testator, whose name bad been erased as one of tbe lega-, tees. One of tbe grounds of contest was, that tbe will bad been revoked by tbe testator in bis life-time.

Tried before tlie Hon. John P. Hubbard. This action was brought by H. Z. Wilkinson against E. W. Solomon, to recover a mare, with damages for her detention; and was commenced on the ‘21st January, 1887.

Tried before tbe Hon. Jesse M. Carmichael. Tbis was a statutory trial of tbe right of property in and to 3,000 lbs. of seed-cotton, between S. A. Wetzler, plaintiff in execution against J. L. Wrigbt, and G. W. Kelly & Co. as claimants; and was submitted for decision in tbe court below on an agreed statement of facts, as follows: “G. W. Kelly & Co., claimants, beld a mortgage on tbe crops of said J. L. Wrigbt, for tbe year 1886, wbicb was executed on tbe lltb January, 1886,…

Tried before the Hon. John F. Hubbard. This action was brought by Thorn & Gorrie, suing as partners, against Sigmund Eoman, “individually, and as agent of Sarah Eoman, Hannah Schram, Eegina Levy, and L. Gugenheim,” as he was described in the summons; or, as described in the second count of the complaint, “ individually, and as agent and trustee for his wife, Mrs. Sarah Eoman, and for Hannah Schram, Eegina Levy, and L. Gugenheim.” The first count of the complaint claimed.…

Tried before the Hon. John P.„ Hubbard. This action was brought by Clarence P. Field against Joseph Jonas, to recover damages for a breach of a contract of employment, or a month’s wages as due by the terms of the contract; and was commenced in a justice’s court, on the 8th March, 1886.

Tried before the Hon. Jessé M. Carmichael. This action brought by Mrs. Eliza Kellum, against James W. Balkum, to recover a tract of land particularly described in the complaint; and was commenced on the 24th January, 1887.

Tried before the Hon. Samuel H. Speott. This action was brought by Eliza Chapman against the appellant, corporation, to recover damages for personal injuries, and was commenced on the 28th July, 1884.

Tried before tbe Hon. John P. Hubbard. This action was brought by Henry I). Brunson against Samuel Stephenson, to recover a cow and heifer calf, “with their increase;” was commenced in a justice’s court, on the 10th October 1885, and carried by appeal to the Circuit Court.

Tried before the Hon. J. M. Carmichael. This action was brought by the appellants, suing as partners, against Warren Herring, to recover the possession of a tract of land particularly described in the complaint; and was commenced on the 5th January, 1883. The defendant pleaded not guilty, and the cause was tried on issue joined on that plea.

Tried before the Hon. Jas. W. Lapsley. This action was brought by James M. Kennedy against the appellant, a corporation chartered under the laws of Tennessee, but doing business in Alabama; and was commenced before a justice of the peace, on the 13th April, 1887. The cause of action was an account for work and labor done, amounting to $50; and the complaint in the Circuit Court, on appeal, contained only the common counts.

Heard before the Hon. S. K. McSpadden. The bill' in this case was filed on the 24th January, 1887, by Abraham McGhee, as the administrator of the estate of Mrs. Ann Griffith, deceased, against J. M. Stephens, as the administrator with the will annexed of William Griffith, deceased, and the sureties on his official bond; and sought an account of the personal property belonging to the estate of said William Griffith, which had come to the hands of said Stephens as…

Tried before tbe Hon. Thos. M. Arrington. This action was brought by “Yellowstone Kit,” as'the plaintiff called himself, against F. C. Randolph, judge of probate of said county, to recover the sum of $300, which he had paid to the defendant, under protest, as a license tax imposed by the provisions of the amendatory revenue law approved December 11th, 1886 (§ 5, subd. 18), on “peddlers of medicines or other articles of like character.” The case was submitted on an agreed…

Tried before the Hon. Thos. M. Arrington. This action was brought by the Union Metallic Cartridge Company, a foreign corporation, against Teague, Barnett & Co., a mercantile partnership doing business in the city of Montgomery; and was founded on an account for goods sold and delivered, consisting of cartridges, aggregating $882.67. The complaint contained the common counts, and a special count which set out a list of the articles sold, with the prices of each.

Heard before the Hon. ¥m. C. Oliver. 'This was an application by Walter F. Eatman, as administrator of the estate of Mrs. Mary Eatman, deceased, for an order to sell a tract of land, on the ground that it could not be equitably divided among the heirs without a sale. Mrs. Eatman was the widow of Thomas Eatman, who died in the year 1883, and whose estate was declared insolvent, on the 13th April, 1885.

<p> Action on Promissory Note, by Payee against Mahers. </p> <p>1. Pleas available to one or more of several defendants. — In an action against the several makers of a promissory note, or other joint contractors, no defense can be sustained as to a part of them only, unless it is of the class called personal; and set-off, recoupment, and failure of consideration, are not such personal defenses.</p> <p>2. Same; case a.t bar. — In an action against the six joint makers of a promissory note, given on a purchase of an interest in a steamboat by two of them, the others being sureties for them; the sureties and one of the principals can not, without the other, plead fraud and misrepresentations by the seller (who was the payee), either as set-off, by way of recoupment, or as failure of consideration.</p>

Tried before the Hon. S. H. Sprott. This action was brought by A. W. Madison, as the administrator of the estate of John Madison, deceased, against Jesse Pendley, to recover the possession of a tract of land containing about fifteen acres; and was commenced on the 11th September, 1885. The defendant pleaded not guilty, and adverse possession for ten years under claim of title; and the cause was tried on issue joined on these pleas.

Clair. Tried before the Hon. Lerox F. Box. This action was brought by M. M. Smith against the several persons composing the firm of D. A. Aderholt & Co., and was commenced before a justice of the peace, on the 17th June, 1886.

Heard before the Hon. Wi. C. Oliver. In the matter of the insolvent estate of William A. Glover, deceased, against which a claim was filed by Mrs. E. W. Clements, who was the decedent’s grandmother.

<p>Appeal from the Circuit Court of Coffee.</p> <p>Tried before the Hon. Jesse M. Carmichael.</p> <p>cited Marshall v. Marshall, 42 Ala. 149; Keel v. Larkin, 72 Ala. 500; 46 Ala. 299.</p>

Tried before the Hon. Wi. E. Clarke. This action was brought by Louis Stewart, Joseph Russelliand others, infants suing by their mother as next friend, as the heirs at law of Challes Russell, deceased, to recover damages for the alleged negligence of the defendant which caused the injuries resulting in his death.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 2d August, 1887, by the Iron Age Publishing Company, a domestic.corporation organized under the general statutes in 1882, against the News Publishing Company, and the Morning Herald Publishing Company, two domestic corporations also incorporated under the general statutes; the Western Union Telegraph Company, a corporation organized under the laws of New York, but having an office and doing business…

Tried before the Hon. H. A. Sharpe. This action was brought by Wm. H. Campbell against George Lunsford, to recover damages for personal injuries sustained by plaintiff from the falling of a brick wall, which was being undermined in order to secure a better foundation for a building which defendant was having erected; and was commenced on the 30th November, 1886.

<p> Trover and Case by Mortgagee, for Conversion of Cotton. </p> <p>1. Mortgage of implanted crop; rights and remedies of mortgagee. — A mortgage of an unplanted crop does not convey a legal title, on 'which the mortgagee may maintain an action of trover for the conversion of the crop, unless he had acquired possession; but it conveys an equitable title and interest, which will support an action on the case against a third person, who, having notice of the mortgage, received and sold the crop.</p> <p>2. Registration of mortgage, as constructive notice. — The registration of a mortgage, in the office of the probate judge of the proper county, operates as constructive notice; and an averment of such registration, in a complaint by the mortgagee against a purchaser, is equivalent to an averment of notice.</p>

Tried before tbe Hon. S. H. Sprott. This action was brought by William H. Propst, a minor, suing by bis father as next friend, against tbe appellant corporation, to recover damag'es for personal injuries sustained while engaged in its service as brakeman; and was commenced on tbe 31st December, 1886.

Heard before the Hon. John A. Foster. Tbe bill in this case was filed on the 29th January, 1883, by Waldo P. Wilson, only surviving child and heir at law of Hr.

Tried before the Hon. John P. Hubbard. This action was brought by Charlton H. Way, against the appellant, a foreign corporation organized… Held: for the purpose of complying with his supposed contract with Both, upon defendant’s paying him the difference in value in the market price of cotton, with other reasonable expenses in connection with said contracts, and assuming the further execution of plaintiff’s said contracts; “and if he failed to do this, and held on to such…

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 9th December, 1886, by the Tuskaloosa Manufacturing Company, a private corporation organized under the general statutes, against Joseph Morris and Joseph Morris, Jr., partners in trade doing business under the firm name of Morris & Morris; and sought to perpetually enjoin the defendants from carrying on a mercantile business in the house and lot occupied by them, 'which they had bought from one W. L.…

<p> Bill of Interpleader. </p> <p>1. Who may file bill. — A judge of probate, holding in his hands, as agent of the county, certain funds arising from taxes collected, which are to be applied in payment and settlement of certain county bonds, can not file a bill of interpleader, either officially, personally, or as agent of the county, against the several holders or claimants of the bonds. If the'bill can be maintained at all, it must be filed in the name of the county, his principal..</p>

<p>Appeal from the Chancery Court of Mobile.</p> <p>Heard before the Hon. Thos. "W. Coleman.</p> <p>The bill in this case was filed on the 28th April, 1887, by F. G. Bromberg, as the trustee or assignee under a deed of assignment executed by the Alabama Insurance Company, a domestic corporation, against Henry Chamberlain and others, as stockholders in said corporation; and sought, principally, .to enforce the collection of the several defendants’ unpaid notes given for their subscriptions of stock. The deed of assignment, a copy of which was made an exhibit to the bill, was signed by the president and secretary of the corporation, and purported to be executed “pursuant to a resolution of the board of directors;” recited that the corporation was “indebted to various persons in large sums, and a general assignment of all its property for the equal benefit of all its creditors is deemed necessary;” and conveyed to the trustee, for that purpose, all of its property, choses in action, &c., including “promissory notes given by stockholders for their unpaid subscriptions to the capital stock.”</p> <p>The said corporation was organized on the 22d April, 1884, under the general statutes of Alabama. Ten per cent, of the capital stock, subscribed was paid in, as the bill alleged, and the corporation did a successful business, until about August 5th, 1885, when it was discovered that, through the defalcation of E. B. Goelet, its president, the company had become insolvent. Before the insolvency of the company, and while its business was prosperous, dividends to the amount of thirty -per cent, had been declared, and credited on the notes given for stock, reducing the liability of the subscribers to sixty per cent., if these dividends were allowed to stand as credits. -Before the insolvency of the company was known, and afterwards, several of the subscribers for stock transferred their shares, or made attempted transfers thereof, names and dates being specified; but the bill alleged that these several transfers were not made with the assent or approval of the board of directors, as required by the by-laws of the corporation, and were therefore ineffectual and inoperative. On the 5th November, 1886, “the president and secretary of said corporation indorsed its name upon all the notes given by the stockholders for their unpaid subscriptions for stock, and delivered them to the Queen Insurance Oompany, a corporation, as collateral security for an indebtedness due by tbe Alabama Insurance Company to said Queen Insurance Company, wbicb was stated, in a written instrument purporting to set out the terms of tbe pledge, to be $12,000, wben in fact and in truth it did not exceed $10,000.” Tbe bill alleged, on information and belief, “that said transfer was of substantially all tbe property of said Alabama Insurance Company; that tbe officers of said company bad no authority to make said transfer, and that tbe same is therefore null and void.” Tbe Queen Insurance Company was made a defendant to tbe bill, wbicb also prayed that said transfer be declared null and void, and said defendant be required to surrender tbe notes.</p> <p>Separate demurrers to tbe -bill were filed by tbe several defendants, all of wbicb. were overruled by tbe chancellor. Tbe demurrer of tbe Queen Insurance Company is not set out in tbe record, and is not passed on by this court. Tbe grounds of demurrer specifically assigned by Henry Chamberlain, P. J. Lyons, and other stockholders, were, in substance — 1st, that tbe insolvent corporation bad no authority to make tbe assignment to tbe complainant; 2d, that tbe board of directors bad no authority to make said assignment; 3d, that tbe transfer to tbe Queen Insurance Company left no assignable interest in tbe insolvent corporation; 4th, that tbe assignee (complainant) did not represent tbe creditors, and bad no authority to collect tbe unpaid notes. Tbe overruling of their several demurrers is assigned as error by tbe defendants, jointly and severally.</p> <p>— (1.) A corporation, organized under tbe general statutes, can not make an assignment for tbe benefit of its creditors. Such a corporation is tbe creature of tbe statute, and possesses only such rights and powers as are given to it. When it becomes extinct, tbe statute makes provision for tbe disposition of its property, but gives it no power to appoint a person to administer on its estate. On tbe practical dissolution of a corporation — “whenever it becomes a nominal, inert body, its property and funds gone, and it is reduced to insolvency, rendering legal remedies against it fruitless and unavailing” — tbe liability of tbe stockholders becomes absolute, and tbe right and. remedies of creditors to enforce it accrue. — Cent Ag. & Medí. Asso. v. Gold Life Ins. Co., 70 Ala. 134. In tbe absence of statutory provisions, wben a corporation becomes dissolved, or extinct, debts due to or from it become extinguished. — Fox v. Horah, 1 Ired. (N. 0.) 358; Pool Gibson v. Mooo'e, 13 Sm. & Mar. 157; White v. Campbell, 5 Humph. 38; Hopkins v.' Whitehead, 1 Head, Tenn. 31; 6 Jones Eq. (N. 0.) 345. But^the statutes intervene, declaring a direct liability torn the stockholders to the creditors, and making the officers or managers at the time of dissolution the trustees of both creditors and stockholders, with full authority*to settle its affairs, pay its debts, and distribute any assets that may remain. — Code, §§2023,2028-9. These provisions are a part of the charter of every corporation organized under the general law; they provide a trust fund for the equal benefit of all the creditors, allowing none to acquire a preference or priority; and it is to be administered on the rules and principles which governed the administration of the security for which it was substituted. — Mor. Corp., §§606, 623; Wright oo. McCormack, 17 Ohio St. 86; McCarthy v. Lavasche, 89 111. 270; Hatch v. Dana, 101H. S. 205; Jacobson v. Allen, 20 Blatch. 525; Farnsworth v. Wood, 91 N. Y. 308; BoHstol v. Sanclfooxl, 12 Blatch. 341; Lane v. Momis, 8 Geo. 468; Patteo-son v. Lynde, 106 U. S. 519; 3 Gomst. 415; Cuoi.is v. Leavitt, 15 N. Y. 44; 8 Cowen, 387 '; 1 Hopk. 301; Smith v. Huckdbee, 53 Ala. 191; Spence v. Shapard, 57 Ala. .598; Pollard v. Bailey, 20 Wall. 520; Coxaoford v. Bohrer, 59 Md. 599; Richmooid v. Irons, 121 U. S. 65; Bedf v. Bundle, 13 Otto, 222; Parsons v. Chaiier Oak Ins. Co., 31 Fed. Bep. 305; 1 Perry on Trusts, § 287, and authorities there cited; Caomingtooi v. Richardson, 79 Ala. 107.</p> <p>2. The complainant is not the representative of the creditors, but only of the corporation. — Go'angeoP L. & H. Ins. Co. v. Hamper, 73 Ala. 346. Occupying only the position of his assignor, he can not be heard to question the assignment to the Queen Insurance Company. That stock notes may be pledged as collateral security by a corporation, see Wooldoldge v. Holmes, 78 Ala. 568. If the pledge to the Queen Insurance Company be “null and void,” as the complainant alleges, he should establish that fact, and recover possession of the notes, before harassing the makers with this suit. — Fullerton v. Lis. Co., 100 N. Y. 76; Wilson v. Esten, 14 B. I. 621; Pilsbury v. Hingon, 31 N. J. Eq. 619; Heinrich y. Wood, 7 Mo. App. 236; Scoville v. Thayer, 15 Otto, 3143; Creed v. Lancaster Baoik, 1 Ohio St, 1; 5 Watts & Serg. 145,</p> <p>3. The complainant can not be heard to assail the transfer by Hannan, Festorazzi and others, of their respective shares of stock. — Billings v. Robinson, 28 Hun, N. Y. 122; Bridgford v. Barbour, 80 Ky. 529; Bilsbury v. Hingon, 31 N. J. Eq. 619; 13 Nebr. 298. But these transfers were made in accordance with a recognized custom or usage, and their validity can not be successfully assailed. — Cecil Bank v. Wats. Bank, 15 Otto, 217; Insurance Co. v. Smith, 11 Penn. St. 120; Hall v. Insurance Co., 5 Gill, 484; Billings v. Robinson, 28 Hun, N. Y. 122; Whitney v. Butler, 118 U. S. 655; Merrimac Co. v. Levy, 54 Penn. St. 227; Spring Co. v. Harris, 28 Mo. 382; 52 Mo. 377; Cook on Stock, &c., § 332; Thomp. Stockholders, 280, § 220; Gilbert v. Manchester Co., 11 Wend. 628; Utica Bank v. Smalley, 2 Cowen, 777.</p> <p>— (1.) The corporation had power to make an assignment for the equal benefit of all its creditors, and this power could be exercised by the directors. — Thorington v. Gould, 59 Ala. 461; Allen v. Railroad Co., 11 Ala. 451; Pope v. Brandon, 2 Stew. 401; Gibson v. Goldthwaite, 7 Ala. 281; Hutchinson v. Green, 15 Amer. & Eng. Corp. Oases, 614; Dana v. Bank, 5 Watts & Serg. 223; Terry v. Anderson, 95 U. S. 623; 52 Ind. 473; 2 Mor. Corp., § 802; 2 Kent’s Com. 382; Marsh v. Burroughs, 1 Woods, C. C. 469.</p> <p>2. The corporation had a right, also, to assign its subscriptions for stock, or stockholders’ notes, as a part of its assets. — Wooldridge v. Holmes, 78 Ala. 568; Downier. Hoover, 12 Wise. 174; 9 Atl. Rep. 73; Amer. Digest, May, 1887, p. 38. That the complainant can enforce this liability of the stockholders in equity, see Allen r. Montg. Railroad Co., 11 Ala. 437; Paschall r. Whitsett, 11 Ala. 487; Glenn v. Williams, 1 Amer. & Eng. Corp. Cases, 58; Bumfs Appeal, 3 Amer. & Eng. Corp. Cases, 1.</p> <p>3. The by-law regulating the transfer of stock subscriptions was a reasonable restriction, and was in harmony with statutory provisions, as well as common-law principles. Code, § 2019; Cunningham r. Life Insurance Co., 4 Ala. 654; Att. Bank v. M. & T. Bank, 20 N. Y. 506; Bosanquct r. Shorlridge, 4 Excheq. 699; 1 Mor. Corp., § 164; Field on Corp., sec. 118, Wood’s ed.; Angelí & Ames on Corp., §§ 353-4, 567; Green’s Brice’s Ultra Vires, 526. Transfers made or attempted, in violation of this by-law, are void, and may be repudiated by the corporation,- — Mor. Corp., sections 525, 679 -, Railroad Go. v. Thompson, 103 111. 202; Railroad Go. v. Tipton, 5 Ala. 787; 7 Jones, L. 275; 56 Cal. 652; 59 Wise. 655.</p>

Application by petition, verified by affidavit, on tbe part of DeKalb Jones, for a rule nisi to the Circuit Court of Lee county, Hon. J. M.' Carmichael presiding, to show cause why a peremptory mandamus should not be issued' by this court, requiring the dismissal of a suit instituted in said Circuit Court by Wood & Boberts against the petitioner, on account of the failure of the plaintiffs, who were non-residents, to give security for the costs, as prescribed and required by…

Heard before the Hon. Thos. M. Arrington. The bill in this case was filed on the 2d September, 1886, by Joseph S. Winter, against the corporate authorities of the city of Montgomery; and sought to restrain the defendants, their officers and agents, from filling in the side-walk around a brick building in the city, known as the “Winter Building,” or laying a Scbillinger pavement thereon, or tearing down a room on tbe second floor of tbe veranda around tbe building.

Tried before the Hon. O. J. Semmes. This action was brought by the appellant, a domestic corporation, against James McDonnell, and was commenced on the 4th June, 1886. The cause-of action was the defendant’s indorsement of a note, or due-bill, which is copied in the opinion of the court.

Heard before the Hon. Thos. M. Arrington. The bill in this case was filed on the 14th July, 1887, by Alva Fitzpatrick, a stockholder in the Dispatch Publishing Company, a private corporation organized under the general statutes, against the said corporation, to enjoin and restrain it, its officers and agents, from issuing additional stock or certificates of stock, as determined on by resolutions adopted at a meeting of the stockholders held on the 2d July, 1887.

Tried before the Hon. O. J. Semmes. This action was brought by William Hare, against L. H. Kennerly, to recover certain articles of personal property which the defendant, as tax-collector, had seized for taxes due and unpaid by the plaintiff; and was commenced before a justice of the peace, on the 2d April, 1887.

Heard, before the Hon. Thos. M. Arrington. The bill in this case was filed on the 5th September, 1887, by W. E. Elsberry and Alex. Troy, resident citizens, taxpayers, and owners of property in the city and county of Montgomery, in behalf of themselves and other citizens and tax-payers, against the following persons as defendants: “Governor Thomas Seay, Ered.