Volume 84 — Alabama Reports

Tried before Hon. O. J. Semmes. In May or June, 1887, tliere was an excursion from Mobile to Mount Vernon, in Mobile county, on the Mobile and Birmingham railroad. There was a general fight at Mount Vernon, on the day of the excursion, late in the afternoon, and just before the train left for Mobile on its return, in which the deceased, Willie Boyd, was struck a blow in the back of the head with a base ball bat or stick, and knocked down.

Tried before Hon. John B. Talley. Appellant was indicted for tbe murder of Jobn Smith. He made application for -change of venue, which application ivas denied. Exceptions were taken to the selection of certain jurors. Hawk was found guilty and sentenced to the penitentiary for forty-five years. An. appeal was taken. No bill of exceptions appeared in the record.

Tried before Hon. O., J. Semmes. This was a prosecution for abandoment of wife and child.

■ Tried before Hon. L. F. Box. The indictment found at February term 1888 of tbe Circuit Court, stated that “Joe Myers and Mary Myers forcibly ravished Mary H. Jones, a female, against the peace and dignity of the State of Alabama.” There were several grounds of demurrer interposed to the indictment; among them, the failure to allege that the said Mary H. Jones was a woman and that she did not consent to the ravishment. The objection to the testimony appears in the opinion.

Tried before tbe Hon. T. M. Arrington. Tbe court erred in charging tbe jury that if they found tbe defendant guilty they must assess a fine,” &c., § 4453 of Code of 1876; § 4500, Code of 1886; McPherson v. The State, 54 Ala. 225.

Tried before Hon. John Moore. The indictment in this case charged appellee with a violation of a liquor prohibition law embraced in an amendment to the charter of the Southern University at Greensboro, Alabama, by an act of the General Assembly approved February 17th, 1885. — Acts 1884-85, p. 740. Defendant demurred to the indictment. The court sustained the demurrer and the State appealed.

<p> Application for Writ of Habeas Corpus. </p> <p>1. Constitutionality of municipal ordinance regulating sale of certain commodities. — It is clearly within the legislative power of the State, so far as any limitations resulting from the Federal constition are concerned, to authorize the passage by city councils of ordinances which prohibit the sale of certain commodities, either generally or beyond specified limits, or within certain hours of the day.</p> <p>2. Same. — The delegation to a municipal corporation of the power to establish public markets, and to confine the sale of commodities, ■which, in consideration of public health, require police inspection and supervision, to such markets, is clearly within the competency of the General Assembly under the Constitution of Alabama; and this is true, even if a result of the exercise of this power should be the destruction of an existing and long established business.</p> <p>3. Same. — City ordinances regulating sales of commodities, passed under legislative authority, must be consistent with general laws, reasonable in their provisions, and referable to the performance of some recognized governmental function.</p> <p>4. Same.- — A city ordiance, like a statute, may be valid in some of its provisions, and invalid as to others. The party assailing the ordinance because of such invalid provision, must show himself to be affected by such provision.</p> <p>5. Power to regulate and manage markets; what it comprises. — The power given in the city charter to “regulate and manage markets,” authorized the city council of Mobile to adopt ordinances prohibiting the sale of commodities at stores, stalls and places in the city outside of the market houses. The power to “regulate”, confers authority to coniine the business referred to to certain hours of the day, to certain localities or buildings in the city, and the manner of its prosecution within those hours, localities and buildings.</p>

Emmett F. Crook, Judge of Probate Court of Calhoun county. Ballew was discharged under proceedings for writ of habeas corpus. The mayor and city council of Anniston applied to the Supreme Court for writ of certiorari and to reverse the judgment of the lower court.

Heard before tbe Hon. T. M. Arrington. This was an application for a writ of mandamus directed to the Bibb Street Church, or the Montgomery Station of the Methodist Protestant Church, the church trustees and church stewards, commanding the rescission of a resolution refusing to receive the Rev. H. H. McNeill as their pastor, and the restoration of said McNeill to the position of pastor of said church and to the emoluments of the pastorate, to which he had been appointed by…

TMs was an application to the Justices of the Supreme Court for a writ of mandamus to Chancellor McSpaclden requiring him to entertain and pass upon a petition filed in the Talladega Chancery Court praying a correction of the note of testimony in a cause now in the Supreme Court on appeal from said lower court.

Heard before tbe Hon. E. C. Randolph. Tbis was a contest of tbe probate of a paper purporting to be tbe last will and testament of Julius B. Gay, deceased, by Julius B. Gay, an infant child, represented by guardian ad litem. The grounds of contest, and tbe facts of tbe case, appear in tbe opinion. Tbe contest was sustained, and it was adjudged and decreed by the probate court that tbe will was revoked and void. Erom that decree tbe proponents appealed. 1.

Heard before Hon. Thomas W. Coleman. The cardinal rule in the interpretation of wills, where there is any obscurity, is to. discover the intention of the testator. And in order to throw light upon and to give form and shape to that intention, the circumstances which surrounded him at the time the will was made (in 1870) must be made known to the court. — Kyle v. Bellinger, 79 Ala. 516.

Heard before Hon. E. Herndon Glenn. Appellant, Mrs. Ida C. Snider, contested tlie probate of a paper purporting to be tlxe last will and testameixt of her brother, H. L. Tillman, deceased, offered by appellee Mrs. Rosa E. Burks, widow of said Tillman on three grounds: 1. That Tillman was of uxxsound mind aixd incapable of making a valid will; 2. That fraud and undue influence was exercised over said Tillman in making said paper; 3.

Tried before the Hon. John Moose. The action was brought by appellant, as administrator, for a mule, which appellant claimed was sold by his intestate conditionally to one Edwards, who mortgaged the mule to appellees. Appellees took possession thereof under the power in the mortgage for Edwards’ debt. cited. 65 Ala. 505; 58 Ala. 468; 50 Ala. 470.

<p> Contest on Claim of Homestead by Widow and Minor Children. </p> <p>1. Homestead; right of widow and children; disposition of property by will. — The right of the widow and minor children to the exemption of the homestead under § 2543, Code of 1886, providing for the exemption from administration of the homestead of any resident of the State, is not barred by the attempted disposition of the property by the decedent in his will.</p>

<p>Appeal from Cherokee Probate Court.</p> <p>Heard before Hon. R. R. Savage.</p>

<p>Appeal from Bullock Probate Court.</p> <p>Heard before Hon. S. F. Frazer.</p>

<p>Petition in Probate Court, by Tenant in Common, for Sale oj1 Land for Partition.</p> <p>1. Adverse possession as defense. — The Probate Court has no jurisdiction to make partition of lands among several joint owners or tenants in common, orto order a sale for equitable partition (Code, 1876, § 3512), when an adverse claim or title is asserted in good faith by any one, and. brought to the knowledge of the court; as where it is shown that one of the joint owners, or tenants in common, since deceased, was in adverse possession continuously for more than ten years, under a deed from a purchaser at sheriff's sale under execution against the common ancestor.</p>

<p> Garnishment on Chancery Decree. </p> <p>1. Garnishment on chancery decree, to subject statutory estate■ of married woman. — A decree in chancery having been obtained, in favor of an infant daughter, and dividing the amount found due among the other heirs and distributees, in proportion to the amount received by each from the father’s estate; if a garnishment will lie on the decree against a granddaughter, whose mother died before receiving anything from the father’s estate, to enforce payment out of moneys belonging to her statutory estate in the hands of her husband (as to which quxre), it certainly can not reach moneys in his hands as administrator of her father’s estate, which is outside of the subject-matter of the suit.</p>

ArpEAL from Bullock Circuit Court. Tried before the Hon. J. M. Carmichael. Appellee sued appellants in attachment for rent of a storehouse.

Tried before Hon. John P. Hubbard. McIntyre, tbe landlord, sued out an attachment against W. J. & 0. E. Robertson, tenants, under the statute giving this remedy, for unpaid rent of certain buildings and land leased to said tenants. The attachment was levied on a steam engine, boiler, &c., in said buildings, which said engine, boiler, &c., had been mortgaged to the appellant and claimant after their erection in said buildings.

Heard before Hon. S. F. Frazer. Hough., appellee, filed an application foT partition of crops in the Probate Court, alleging the names, ages and residences of parties interested, and location of crops, and that “he and Mooney are joint owners of the following crops, to-wit: the crops of a four-mule farm cultivated and grown during the year 1887, consisting of cotton, corn, cotton seed, . and of value the sum of about eighteen hundred dollars; that the said petitioner and the…

Tried before Hon. T. M. Arrington. This action was brought by appellants for the alleged conversion by appellees of cotton upon which appellants claimed to have a prior mortgage given by one Houser. The facts concerning these mortgages, and by whom the cotton was raised, and the question of usury, appear in the opinion.

Tried before the Hon. John P. Hubbard. argued the act establishing the agricultural department was unconstitutional: 1st, one-third of the money paid for the tags is paid to and used for the A. & M. College at Auburn and thereby violates art. I, sec. 24 of the constitution; 2d, the act violates constitution art. 2, sec. 1; 3rd, it violates art. II, sec. 4; 45 Ala. 317; 77 Ala. 602; 4th, it taxes only commercial fertilizers: Potter’s Dwarres on stat., 444 et seq-, Cooley’s…

Tried before Hon. H. 0. Speake. Tbe suit was on the common counts for the purchase-price of a horse, surry, and wheels sold by appellees, Katzenberger & Sons, to A. H. Moses, appellant. The defendant, Moses, by his various pleas, set up false and fraudulent representations made by plaintiffs as to the age and soundness of the horse; the return, in a reasonable time, of the horse; his refusal to receive the buggy and wheels; and the entirety of the contract.

<p>Appeal from Mobile Circuit Court.</p> <p>Tried before the Hon. W. E. Clark.</p> <p>cited Bishop on Con. §§ 327, 1431; 1 Wait Act. & Def. 76; Chitty on Con. (11th Éd.) 1062, 1079, 1087; 56 Amer. Dec. 557; 51N. Y. 124; 41 N.'Y. 212; 3 Keyes, 203; 38 N. Y. 212; 55 N. Y. 319.</p> <p>cited 53 Wis. B. 41; 112 Penn. St. 479; 73 Ala. 372.</p>

Tried before Hon. John P. Hubbard. This was an action by appellee against appellants for breaking into and entering a house and removing a lot of household and kitchen furniture. The only error assigned is in reference to the question and answer thereto, referred to in the opinion. cited 19 Ala. 185; 42 Ala. 83. Wharton on Ev. § 510; 63 Ala. 275; .67 Ala. 301; 49 Ala. 412.

Tried before'Hon. L. F. Box. Appellee, and plaintiff, as proof that it was a corporation under tbe laws of Obio, introduced in evidence certified papers and proceedings of incorporation, but did not introduce any evidence of the laws of Ohio authorizing such proceedings and declaring that they would constitute it a corporate body. All other matters sufficiently appear in the opinion. 1.

Tried before Hon. H. D. Clayton. This was an action by appellant, Williamson, for loss by fire o£ gin house, gearing,- belting, &c., cotton and cotton seed, covered by two insurance policies issued to Williamson alone. There was but one application upon which the two policies were issued. This application was made by one Carroll, the agent of plaintiff Williamson.

Heard before Hon. Thomas Cobbs. The facts appear in the opinion. The appellant, a married woman, by her next friend, filed a bill in chancery praying for compensation for the right of way and an injunction until compensation was paid. The 8th ground of demurrer set up that complainant was estopped from making claim for compensation. on the question of estoppel — cited 1 Herman on Estoppel & Ees.

Heard before Hon. Thomas W. Coleman. 1. The bill seeks to enjoin the commission of a series of personal trespasses, which are threatened. — M. & W. P. P. B. Co. v. Walton, 14 Ala. 207; •Burnett v. Craig, 30 Ala. 185. 2.

Thomas W. Coleman. Complainants, and appellants, wbo are wholesale merchants and warehousemen in the Port of Mobile, and do business on and near the street upon which the railroad track runs, sought to enjoin the enforcement of a municipal ordinance prohibiting the loading and unloading of cars in the public streets o£ Mobile. The ordinance is that discussed in the case of the .Pori of Mobile v. L. & N. Ji.

Heard before Hon. Jno. A. Foster. The Louisville and Nashville Railroad Company, operating the South and North Alabama Railroad Company, and in charge of the Union Passenger depot of the last named company in the city of Montgomery, undertook to make an addition, demanded by public convenience, and necessary for the business of said companies, to said Union depot, which depot is a brick building and within the fire limits of said city of Montgomery.

<p>Appeal from Mobile City Court.</p> <p>Tried before Hon. O. J. Bemmes.</p> <p>cited M. & O. P. P. Co. v. Thomas, 42 Ala. 672; M. efe M. B. B. (Jo. v. Smith, 59 Ala. 245; Smoot, v. M. cfi M. B. B. (Jo. 67 Ala. 18; Bull v. M. & M. B. B. (Jo. 67 Ala. 206; L. <& N. B. B. (Jo. v. Allen, 78 Ala. 494; Eureka Co. v. Bass, 81 Ala. 200; Harwell v. B. & C. B. B. 4 Met. 49.</p> <p>cited Code of 1886, § 2590; Acts of 1886-7, p. 146; B. B. Co. v. Williams, 53 Ala. 595; B. B. Co. v. Bayliss, 74 Ala. 159; B. B (Jo. v. McAlpine, 75 Ala. 118; Goodlett v. Kelly, 74 Ala. 219; 2 Thompson on Neg. 1246; Taylor v. Holmdn, 45 Mo. 371; McCord v. High, 24 Iowa, 836; Panton v. Holland, 17 John. 92; Patterson B. B. Acc. Law, 349; Wood’s Master & Servant, §§ 349, 352; Sutherland 'on Damages, 3 vol. 259; B. B. Co. v. McLendon, 63 Ala. 273; Barbour v. Horn, 48 Ala. 566.</p>

<p>Appeal from Birmingham City Court.</p> <p>Tried before Hon. H. A. Sharpe.</p>

Tried before tlie .Hon. Leroy F. Box. This was an action against tbe South & North Alabama Bailroad Company by James Donovan, father of William Donovan, for personal injuries to tlie said William, who was run over by a train of cars in tbe corporate limits of Birmingham.

Tried before Hon. H. C. Speake. Tliis suit was brought against tlie railroad company by Martba Compton, as administratrix of ber busband, Charles Compton, wlro was run over and killed by a train of cars on defendant’s road.

Tried before the Hon. L. E. Box. [No brief came to hands of Reporter.] It is negligence per se on the part of defendant to run its train of cars insufficiently supplied as it was with brakes, through the incorporated town of Heflin at such rapid rate of speed that an obstruction on the track at a crossing could not have been seen by the engineer in time to have stopped before reaching it. — S. & M. R. R. Co. v. Shearer, 58 Ala. 672; S. & N. R. R. Co. v. Sullivan, 59 lb. 272;…

Tried before tbé Hon. S. H. Sprott. Tbis was an action against tbe appellant, tbe Alabama Great Southern Railroad Company, for personal injuries received by tbe appellee, John W. Arnold, in falling at nigbt from tbe platform of tbe railroad station of said company at Boligee, wbicb fall, be alleged, was due to tbe failure on tbe part of tbe railroad company to bave tbe station, or depot, supplied with a light.

<p>Appeal from Etowah Circuit Court.</p> <p>Tried before Horn John B. Tally.</p>

<p>Appeal from the Circuit Court of Montgomery.</p> <p>Tried before Hon. John P. Hubbard.</p> <p>cited Hutchinson on Carriers, § 239; Ala. Gt. So. JR. JR. v. Little, 71 Ala. 614; Steele, v. Townsend, 37 Ala. 247; Hart v. Penn. B. JR., 112 H. ¡3. 337; EJenlein v. Railroad, 52 Ala, 615; s. c., 56 Ala. 372; L. & N. B. B. Co. v. Oden, 80 Ala. 44; 25 Md. 341; Gardner v. Hear It, B Denlo, 232; Graves v. L. S. & M. S. B. B. Co. 131 Mass. 35; Lockwood?s Case, 17 Wall. 357; Leiois v. Gt. West, B. B., L. J. Q. B. 131; L. B. 3; Q. B. 45.</p> <p>cited B. B. Co. v. Lockwood, 17 Wall. 357; M. & O. B. B. Go. v. Hopkins, 41 Ala. 486; Steele v. Townsend, 37 Ala. 247; S. & N. B. B. Go. v. Henlein, 52 Ala. 615; s. c., 56 Ala. 368; Jb. v. Wilson, 78 Ala. 587; Ala. Gt. So. B. B. Co. v. Little; 71 Ala. 611; Hooper v. Wells, 27 Oal. 11; Magetti v. Hadom B. B. 3 E. D. Smith, 98.</p>

Tried before Hon. L. W. Day, special judge. This was an action brought by the appellee, A. J. Hembree against the Memphis & Charleston and the East Tenn., Va. & Ga. Railroad Companies to recover damages for the alleged killing of an ox, the property of the plaintiff. The place of the alleged killing was on the line of the Nashville, Chattanooga & St. Louis Railway Company, over which line of road the appellants ran their trains.

<p>Appeal from Montgomery Circuit Court.</p> <p>Tried before Hon. John P. Hubbard.</p> <p>cited Corby v. Hill, 4 C. B. (N. S.) 556; 52 N. Y. 354; 10 Allen, 378; 99 Mass. 216; 116 Mass. 67; 18 Mass. 102; TJ. S. 23Ó; Wood on Nuisances, 148; 94 111. - 349; Freer v. Cameron, 4 Bichardson’s S. C. (Law), 231.</p> <p>cited 69 Me, 173; L. B. 4 Ex 257; 99 Mass. 216; 48 Yt. Í27; 87 Penn. St. 365; 69 Ind. 33; 35 Ohio St. 627; 75 N. Y. 303; 76 N. Y. 329; Beach on Con. Neg. § 12, p. 40; 4 Bich. S. C. (Law), 228; 57 Ala. 595.</p>

Appeal- from Montgomery Circuit Court. Tried before Hon. John P. Hubbard. Appellants, wbo were lawyers and engaged in tbe business of negotiating loans, undertook to, and did, obtain a loan for Mrs. McCall, wbo secured tbe payment of said money loaned by executing a mortgage on lands in Lowndes county, upon wbicb there was a dwelling-bouse.

Tried before Hon. John Moore. All facts necessary to show what was decided in this case are set out in the opinion, except the certificates to two deeds, which are here given. The bill of exceptions recites, that the execution of the deed from Spiva to Ballard was proved.

<p> Statutory Action of Ejectment. </p> <p>1. Sale of decedent’s lands for equitable division; jurisdiction of court;</p> <p>omission to state names of heirs. — On an application by an administrator for an order to sell lands for distribution, or equitable division, the jurisdiction of the court attaches on the filing of the petition alleging that the lands can not be equitably divided without a sale; and the proceedings being in rem as settled by numerous decisions of this court, the omission to make one of the heirs a party, or to state his name with the others, does not render the sale void, nor can he impeach it collaterally. ‘</p> <p>2. Same; remedy of heir not made party. — If one of the heirs is not named in the petition, or is not made a party to the proceedings, he may apjfiy to be made a party, in order that he may sue out an appeal; and having this remedy, it can not be said that he is deprived of his property without due process ,of law.</p>

<p> Application by Administrator to Probate Court to sell Lands for Distribution. </p> <p>1. Sufficiency of petition in averment of names, ages, and residences of heirs. — On an application by an administrator for an order to sell lands, on the ground that they can not be equitably divided without a sale, the petition is required to state the names, ages, and residences of the heirs (Code of 1876, § 2450; Code of 1880, § 2106); and it is not sufficient to allege that some of them are unknown to the petitioner, and that he has not been able to ascertain them by due diligence.</p>

Tried before the Hon. L. F. Box. Suit was brought by Jno. W-. Knowles, appellee. Tbe theory of the suit and the nature of the evidence pro and con appear in the opinion.

Tried before tbe Hon. Leroy E. Box. Tbis cause was revived in tbe name of plaintiff Jones, as administrator of one George, wbo bad brought suit through bis attorney Thomas Hayden, for certain land in tbe town of Talladega. George claimed title through a deed from McMillan. Tbis deed when offered in evidence bore marks of mutilation.

Tried before Hon. H. A. Sharpe. This was a statutory action of ejectment brought by appellee, King, against one Gentles, tenant 'of appellants, Strange and White, who were admitted to defend the action. The state of the record title to the property sued for appears in the opinion.

Heard before Hon. S. K. McSpadden. The bill filed in this cause was to enjoin an action of ejectment by John H. Forney brought for certain interest inland dedicated by him to the county of Calhoun as a site for a court house. Demurrer to the bill and motion to dissolve the injunction were overruled. Decree was rendered for the complainant, county of Calhoun, and defendant appealed.

Heard before Hon. Thomas W. Coleman. The bill was filed by appellants, Gage & Co., a partnership, to enjoin the Mobile & Ohio Railroad Company from closing up a space of ground, used theretofore as an alley, or jiassage way, between plaintiff’s ice house on the one side and another building on the other side, on the ground that it was a public alley from Commerce street in Mobile to the Mobile river.

Tried before tbe Hon. S. H. Sprott. This was an action in tbe nature of ejectment under tbe statute, brought by appellee, Gibson, for tbe “ surface” of certain lands out of which tbe “minerals,” &c., bad been previously granted, described in tbe complaint as follows, viz : “ Tbe northeast quarter of southwest quarter, and all of that part of tbe southeast quarter of southwest quarter, situate or lying north of tbe Georgia Pacific [Railway, section 28, township 15, range 9…

. Appeal from Clay Circuit Court. Tried before Hon. L. F. Box. The plaintiff, Messer, brought an action of ejectment, under tbe statute, against appellant Biddle, for land purchased by said Messer at a tax sale. Under § 3047 of Code of 187 6, the original records from the office of the probate judge were brought into court. The questions presented to this court appear in the opinion.

Heard before tbe Hon. Thomas Cobbs. Tbe appellant, Jackson County, filed tbe original bill to force James M. Gullatt, wbo bad been for two successive terms tax-collector of Jackson county, to account for tbe taxes Avbicb be bad collected and should have collected while in office. He bad been elected to that office in 1874, and re-elected in 1877.

<p>Appeal from Marengo Chancery Court.</p> <p>Heard before Hon. Thos. W. Coleman.</p>

<p>Appeal from Tuskaloosa Chancery Court.</p> <p>Heard before Hon. Thomas Cobbs.</p>

Heard before Hon. Thomas W. Coleman. This case' was before the court on former appeal on demurrer to original bill with exhibits and amendments, 82 Ala. 177. Coleman, a merchant, made a sale of a stock of goods to Lawson, his brother-in-law, the consideration of which was an antecedent debt of $1,400.00, consisting of two notes of Coleman, one for $1,000.00 and one for $400.00, discounted by Lawson, who was a banker, at 1 per cent, per month, and the balance in cash.

Tried before Hon. John Moore. This was an action by George W. Searcy, appellee, against Poliak el al. for levying an attachment on property claimed by said Searcy under a sale to him by his debtors, Blake & Searcy, who were also debtors to said Poliak. ■

<p>Appeal from Mobile City Court.</p> <p>Tried before Hou. O. J. Semmes.</p>

Heard before Hon. Thomas Cobbs. The bill was filed by Middleton Wedgworth, a judgment creditor, and sought to set aside as fraudulent a conveyance of lands by John M. Wedgworth to his wife Nancy A., and to subject said lands to payment of the indebtedness of John M. to Middleton Wedgworth. On final decree the conveyance was set aside, and the lands ordered to be sold in payment of said indebtedness.

<p> Rill in Equity to Remove Cloud on Title. </p> <p>1. Cloud on title; fraudulent conveyance. — A purchaser at an execution sale of lands fraudulently conveyed by the judgment debtor has a plain and adequate remedy at law, and, when out of possession, cannot come into equity to obtain the cancellation of the conveyaoce as a cloud on his title.</p>

<p> Action of Detimie. </p> <p>1. Detinue; seizure of goods by sheriff; assignment. — In detinue by assignee against a sheriff who had simultaneously levied separate attachments sued out by M. and by L.' creditors, upon goods assigned for the benefit of creditors, the defendant sheriff alleged fraud in the assignment, in reply to which plaintiff attempted to introduce evidence of proceedings to show acceptance of the assignment on the part of M. which would preclude him from alleging fraud, but L. was not shown to have been a participant in such proceedings: Held, the evidence was inadmissible, defendant having authority under the attachment of L. to seize the goods if fraud were shown, and to detain enough to pay L.’s claim; and the question whether it be illegal to seize and detain more than enough, cannot be raised in detinue.</p> <p>2. Objection to evidence. — Objection to testimony as a whole, much of it being legal evidence, is rightly overruled.</p>

Heard before Hon. Ti-ios. Cobbs. The bill in this cause was filed by the administrator of • Hudson to enforce a lien on land, and averred that the vendor, Samuel Linn, was, at the time of the contract of sale, indebted to said Hudson, and as part of such contract, A. J. Linn, the vendee, executed his note for the purchase-money to said Hudson, which said note was held by said Hudson as collateral security for the indebtedness to him of Samuel Linn, which indebtedness was…

Heard before Hon. Thomas Cobbs. Appellants filed a bill to enforce the vendor’s lien. A decree was rendered in their favor in November, 1873. In August, 1885, the register sold the land and made a report of sale. The defendant submitted exceptions to this report, and filed a petition to set aside the sale on the ground that the decree against Mm had been paid. The question of payment veil non was referred to the register, who reported that payment had been made.

Heard before Hon. Thos. W, Coleman. The appellee, Emory B. Peebles, filed this bill to enforce a vendor’s lien on land sold by his father, W. B. Peebles. The said W. B. Peebles having died, the note given him for the unpaid purchase-money, in the division and distribution of his estate, became the property of his son, the complainant.

<p> Bill to enforce Vendor’s Lien. </p> <p>1. Vendor and vendee; public lands; pre-emption. — When, in a sale of lands, a portion thereof belongs to the United States, and it is after-wards agreed between the vendor and vendee that the latter should enter it and that the vender should bear all expense in perfecting title thereto, this agreement does not infringe Rev. St. TJ. S., § 2290, requiring the pre-emptor to make such application for his exclusive use and benefit for actual settlement and cultivation, and neither directly nor indirectly for the use or benefit of any other person.</p>

Chancery Court. Heard before tbe Hon. Thomas Cobbs. Tbe bill was filed by appellee, Andrews, as assignee of tbe equity of redemption, and sought to redeem certain real estate which bad been sold under a power in a mortgage executed before tbe assignment of tbe equity of redemption.

Heard before the Hon. S. IL McSpadden. The bill was filed by appellee, Bridgeford & Co., a corporation, as junior mortgagee, and sought to redeem a storehouse and lot which had been sold under a power in a deed of trust senior to the mortgage; which sale took place more than two years prior to the filing of the bill. A demurrer to the bill that the junior mortgagee was not entitled to redeem was overruled by the chancellor.

Heard before Hon. Thomas W. Coleman. This was a bill in equity to redeem real estate filed by the original mortgagors, and their assignees respectively of the equity of redemption, and the statutory right to redeem, alleging a tender by each of the parties complainant just previous to the expiration of two years from the date of sale of the property under the power contained in the mortgage.

Chancery Court. Heard before Hon. Jno. A. Foster. This bill was filed by the appellee as assignee of the equity of redemption against the mortgagee, who purchased indirectly at his own sale, under a power of sale in the mortgage, which did not give him the right to purchase, and sought to redeem the land in controversy.

Heard before Hon. Thomas Cobbs. The appellee, Steele,'filled this bill to redeem certain real estate sold by the sheriff. Upon a portion of the land levy had been made on the entire interest therein; on the other portion, levy was made on an undivided interest.

Heard, before Hon. Thos. W. Coleman. The bill was filed by appellee, and mortgagee, Steiner against Burt Boutwell and wife, to foreclose mortgage on dands. The mortgage was executed by John F. Hinson, January 9, 1873, and was duly recorded.

Heard before Hon. Thomas W. Coleman. Appellant executed a mortgage on certain real estate, known as “Hollinger’s” or “Montgomery” Island, to secure ■ his indebtedness to appellee. This indebtedness, amounting to $5940, had become due, and to avoid a foreclosure suit and a sale of the property under chancery decree, appellant executed a deed conveying the property to appellee for said sum of $5940, and put appellee in possession thereof.

<p> Bill in Equity to foreclose Mortgage of Land. </p> <p>1. Mortgage of homestead; sufficiency of certificate of aclcnoivledgment by wife. — A certificate of acknowledgment, appended to a mortgage of the homestead, which states that the wife acknowledged that she “signed the same of her own free will, and accord, without fear, constraint or threat on the part of the husband,” is a substantial compliance with the statute. (Code of 1886, § 2508, which uses the italicized words in the plural.)</p> <p>2. Same; inconsistent dates. — Where the certificate is dated August 7th, hut states that the acknowledgment was made on September 4th, the latter will be held to be the true date, and the certificate will be sustained.</p> <p>3. Decree of foreclosure; reference as to propriety of sale in parcels. When there are infant defendants to a foreclosure suit, it is error to decree a sale of the land, without a preliminary reference to ascertain whether their interests require a sale in parcels; hut, when all the defendants are adults, such reference is unnecessary unless a sale in parcels is demanded by them.</p>

<p>Appeal from City Court of Montgomery.</p> <p>Tried before Hon D. T. Blaket, special judge.</p>

<p> Bill in Equity to have Conveyance declared a Mortgage. </p> <p>1. Declaring absolute conveyance to be a mortgage. — A conveyance of lands, absolute on its face, may be declared and enforced as a mortgage in equity, on parol evidence; but the evidence must he clear, consistent, strong and convincing; and the evidence in this case, which is in direct conflict on material points, and inconsistent with the undisputed facts, is not sufficient to uphold such a decree.</p>

Heard before Hon. Thos. W. Coleman. This cause was before the court on former appeal. — 83 Ala. 234 On its return to the court below the bill was amended as appears in the- opinion. The demurrers to the amended bill were overruled by the chancellor. From this decree overruling the demurrers defendants appealed.

Thomas Cobbs. The bill was filed in November, 1882, by appellee as trustee of S. A. Connor, and alleged that one Bachel Wedge-worth, by will, bequeathed to said Connor two hundred dollars, which legacy was placed by the terms of the will in the hands of one Stephen Wedgeworth as trustee; that during life and up to his death said Stephen Wedgeworth discharged his duties as such trustee; that said Stephen “being possessed of property consisting of land, mules, cattle and other…

Appeal Rom Madison Chancery Court. Heard before Hon. Thomas Cobbs. The bill was filed by Mrs. Annie S. Tardy against her husband Clarence Tardy and David D. Shelby, and sought to have a resulting trust in her favor declared in certain lands bought by her husband, and to remove a cloud on the title thereof caused by a contract for the sale of said lands to said Shelby entered into by her husband and Shelby.

Heard before Hon. S. K. McSpadden. Appellees, as legatees and distributees of the estate of Dewitt C. Alexander, filed their bill against John D. Alexander, appellant, to compel a settlement of his accounts as executor 'and administrator of the estate of' Joseph M. Alexander, their grandfather, and to remove the settlement of the estate into equity.

Heard before Hon. Jas. T. Beck. . Tbe appellants in tbis case were tbe administrators of tbe estate of Stephen Byrd, deceased. They were removed and B.' C. Jones, appellee, was appointed administrator cle bonis non of tbe said estate. Tbe questions raised and presented in tbis case are raised on tbe application by appellants for final settlement of their administration of tbe estate of said Stephen Byrd, deceased.

<p>Appeal from Lauderdale Chancery Court.</p> <p>Heard before the Hon. Thomas Cobbs.</p>

<p>Appeal from Chilton Chancery Court.</p> <p>Heard before Hon. S. K. McSpadden.</p>

<p> Bill in Equity for Reformation of Administrator’s Conveyance of Lands sold under Probate Decree. </p> <p>1. Affirmed on the authority of the former decision in this case. Ganey v. Silces, 76 Ala. 421.</p>

Heard before Hon. John A. Foster. Tbis case was before tbe court on former appeal, Hooper v. Hardie, 80 Ala. 114. Tbe opinion in tbe present case sets out every thing necessary to its full understanding. The briefs filed by solicitors for appellants and appellee respectively, are voluminous and argumentative.

Heard before the Hon. John A.'Foster. A Chancery Court has jurisdiction to partition personal property as well as real property. — 3 Pom. Eq. Jur. 427, § 1391; 15 Barbour 333; 22 Ind. 568; Marshall v. Crow, 29 Ala.>27,8; Smith v. Dunn, 27 Ala. 315; Code of 1886, § 3262; a judgment is personal property.

<p>Appeal from Marengo Chancery Court.</p> <p>Heard before Hon. Thomas Cobbs.</p>

<p>Appeal from Chancery Court of Marengo.</p> <p>Heard before Hon. Thomas Cobbs.</p> <p>[No briefs came to the hands of the Reporter.]</p>

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

Heard before Hon. Thos. W. Coleman. The bill was filed by the husband, Edwards, and sought a divorce a vinculo on the sole ground of abandonment by the wife. The wife answered, denying that the abandonment was voluntary, and filed her petition for counsel fees and alimony pendente lite. On decree in favor of husband, a petition for sum in gross as permanent alimony was filed by the wife. An order of reference to the register was made.

Heard before Hon. Thomas W. Coleman. The bill in this cause was filed by Mrs. Murray against her husband seeking alimony without a divorce.

<p>Appeal from Lamar Chancery Court.</p> <p>Heard before Hon. Thomas Cobbs.</p>

Heard before Hon. L. M. Lane. and Appeal from Butler Chancery Court. Heard before Hon. Jno. A. Poster. The lawful wife, and the divorced wife, of the deceased B. H. Bush applied for dower interest in deceased’s estate, 'one in the Probate Court, the latter in the Chancery Court. The lower courts decided in favor of each applicant respectively, and the administrators of the estate bring their appeals, from each court.

Heard before Hon. S. K. McSpadden. The appellants, J. W. Nance, et el., filed this bill against William and Mary Nance, on the ground and for the reasons set out in the opinion. At final hearing, on pleadings and proof, the bill was dismissed out of court.

Heard before Hon. Thomas W. Coleman. ■ The bill was filed by appellant, the Union National Bank of New Orleans, Louisiana, against Julia Hartwell, a resident of the city of New Orleans, the Mobile Mutual Insurance Company, the Citizens Mutual Insurance Company of Mobile, and the assignee of said l&st named insurance company.

Heard before Hon. H. A. Sharpe. The appellant Mary Butler, a non-resident negro woman, filed the bill in this cause praying that one James Going be decreed to hold certain real estate in the city of Birmingham have for her use and that the Elyton Land Company be ordered to make to her deed and title thereto, &c. The bill in substance avers that Mary Butler, the complainant, was the mother of two illegitimate sons, named Gus Peteet and Butler Whitney.

Heard before Hon. Thomas W. Coleman. The bill was filed by a nephew and two nieces of' John N. Sanders, deceased, claiming that they are entitled to the whole of the real estate of the deceased, subject to the widow’s right of dower, and to one half of the personal property of the deceased, ’in absolute right as heirs and distributees.

Appeal Horn Tuscaloosa Circuit Court. Tried before Hon. S. H. Spbott. The appellant, James Morrison, was indicted by the grand jury of Tuscaloosa county for the murder of Alex. Webb; was tried and convicted of manslaughter in the first degree, and sentenced to the penitentiary for nine years. His various objections in the organization of the jury appear in the opinion.

Tried before Hon. S. H. Sprott. The appellant was tried and convicted of the crime of murder in the first degree, and sentenced to be hanged’ There was an application made to the trial court for a change of venue, which was refused by the court, and the defendant excepted to such refusal. The facts, affidavits and circumstances accompanying such application for a change of venue are fully set out in the opinion of the court.

Tried before tbe Hon. J. M. Carmichael. The facts of this case, and the legal questions passed on by the court, sufficiently appear in the opinion, with possibly one exception. One Elbert Cooper had been tried preliminarily for the murder of Reuben Sanders. On that preliminary trial, Will Sanders, a witness for the State in this trial, had been examined and his testimony taken down by the magistrate, as required by section 4286 of the Code of 1886.

<p> Indictment for Murder. </p> <p>1. Manslaughter in first degree. — An intention to take life is not a necessary ingredient of manslaughter, even in the first deg'ree.</p> <p>2. Homicide by careless act. — Gross carelessness, even in the performance of a lawful act, causing an injury which results in death, is at least manslaughter.</p> <p>3. Same; case at bar. — The deceased having been thrown from a handcar, on which he was riding with the defendant and others, and which was stopped suddenly as the defendant leaped from it, the evidence tending to show that he put his foot on the brake as he did so; a charge asked, instructing the jury that, if the defendant, “although he may have stepped on the brake in jumping from the car, did not know the result of stopping the car suddenly, then he would not be guilty,” is properly refused.</p>

Pike Circuit Court. Tried before Hon. Jno. P. Hubbard. The defendant Lawrence was indicted for assault with .intent to murder Coon Worthy, was found guilty and sentenced to four years imprisonment in tlie penitentiary. cited .Ross v. State, (52 Ala. 224; Meredith v. State, (SO Ala. 441.

Tried before Hon. S. E. Greene. The appellant, Tom Wilson, was indicted for the murder of Cash Mosley, a fellow convict, at Pratt Mines; the language of the indictment being as follows; “The grand jury charge that . . .

Tried before Hon. L. E. Box. The defendant, Banks, was charged by indictment with burglarizing the store-house of one McBride in Cross Plains, Calhoun county. It appeared on the trial of the cause, that the day following the burglary, defendant was arrested by one Hampton and others.

Tried before Hon. S. E. Gbeene. Appellant was indicted, tried and convicted of grand larceny in stealing a watcb and chain alleged to be gold. The defendant objected to be put to a trial for tbe above offense , on the 22nd day of February, tbe day tbe case was called for trial, on tbe ground that such day was a legal holiday— dies non júridicus. 'The objection was overruled.

<p> Indictment for Burqlaru and Grand Larceny. J J J J </p> <p>1. Ownership of stolen property; variance. — When the indictment alleges the larceny of property belonging to the husband, and the proof shows that it belongs to the wife’s statutory estate, there is no fatal variance, since the ownership may be laid in either, unless the Code of 1886 has changed the law in this particular; and if it has effected a change (which is not decided), this court will presume, in favor of the ruling of the lower court, that the offense was committed before the new law became operative, unless the record repels the presumption.</p>

Tried before the Hon. John P. Hubbard. Defendant McQuirk, on trial under an indictment for rape, requested the following charges, each of which was refused by the court, aud to such refusal, he excepted: 2. “If the jury have a reasonable doubt that the act was done with force, they must acquit the defendant although the prosecutrix is a woman of weak mind.” 3. “If the jury have a reasonable doubt that the defendant did the act with or without the consent of the prosecutrix,…

Tried before Hon. Thomas J. Taylor. The facts of the case fully appear in the opinion. Charge number 1 requested by defendant and refused by the court was, “If you believe all the evidence in this case, you cannot convict the defendant on this indictment.” Ellerson v. State, 09 Ala. 1. The owner of the land had “a lien created by law for rent or advances” on his co-tenants share of the crop. — Code, 1880, § 3075.

W. H. Hurt. 1. Letcher had no right to explain the written contract. 2. It was clearly incompetent and illegal to admit Letcher’s account booh without proof of its genuineness and correctness. 1 Greenl. Ev. § 657. 3. Letcher had no lien for advances. The advances made to defendant, were made to him not as tenant, but as a wage-laborer. 4. It is not known where the offense was committed. The value of the cotton was matter of proof, not of judicial knowledge.

Tried before the Hon. L. F. Box. There is but one point in this case, and that was decided against appellant in Walton v. State, 62 Ala. 197.

James Aiken. The judgment entry of the lower court in this case recites that the indictment against defendant having, been read to him, he demurred thereto upon the grounds specifically set forth in said demurrer; and that the demurrer ivas overruled; that on trial being had on his plea of “not guilty,” defendant was convicted and fined in the sum of two hundred dollars. The demurrer, referred to in the judgment entry, nowhere appears in the record filed in this cause.

Tried before Hon. T. M. Arrington. Defendant Foster was indicted for playing cards at a tavern, inn, or public liouse, &c., under § 4052, Code 1886, and on trial was found guilty. Tbe facts are set out in tbe opinion.

Tried before Hon. John B. Tally. The appellant waa indicted for engaging in or carrying on the business 'of a transient or itinerant dealer in goods, wares or merchandise, without a license other than that of a licensed peddler or travelling agent of the wholesale dealer in said articles, making sales thereof by sample. The indictment was found against Mike Skiff. The appellant pleaded in abatement a misnomer; alleging that his name was Ike Shiff.

Tried before Hon. J. M. Carmichael. The defendants, Morris and others, indicted for disturbing religious worship, were members of tho “majority” faction of a negro church, known as the “New Juclson Church.” This “majority” faction had expelled from membership in the church the “minority” faction.

<p>Appeal from Chambers Circuit Court.</p> <p>Heard before Hon. J. W. Lapsley.</p>

<p> Application for Certiorari. </p> <p>1. Criminating questions; adultery and fornication. — A witness can not be compelled to answer any question, the answer to which, would tend to criminate him, or would constitute a necessary link in the chain of testimony sufficient to convict him of a criminal offense; and therefore, on the trial of a common prostitute as a vagrant, a witness can not be required to answer whether he has had sexual intercourse with her. »</p>

Ait>35AL from Jackson Circuit Court. Tried before Hon. L. E. Box. Eor non-appearance of appellant Hawk, under indictment for murder, judgment nisi was rendered against him and the sureties on his bail bond and scire facias issued. The question raised by the demurrers to defendant’s pleas, and the judgment of the court is that discussed in the opinion. By agreement of parties the issue was submitted to the court for judgment without a jury.

Tried before Hon. L. E. Box. This was a suit by R. C. Bradley, on the common counts fox a sum of money due him as clerk of the Circuit Court of Jefferson county, for issuing siibpamas for the defendant’s witnesses, at the instance and request of defendant, in cases brought against defendant in said Circuit Court by different parties, but in which suits, on the trial, the defendant was tbe successful party; tbe costs accruing at tbe instance of tbe said defendant in sucb…

Tried before Hon. H. A. Si-iarpe. Appellee, McCary, brought suit against the Mayor and Aldermen of Birmingham to recover damages for injuries sustained by reason of a ditch across one of the streets, including the sidewalks, of said city of Birmingham being left open without proper lights, or other warning of danger, and into which plaintiff fell the night of November 25, 1885, and broke his arm. The several defenses to the action appear in the opinion.

Tried before Hon. Thomas M. Arrington. The plaintiff Townsend brought this action against the City Council of Montgomery, claiming damages for the injury done his property on the corner of Goldthwaite and Herron streets in said city of Montgomery, by reason of the grading and cutting down of the sidewalks contiguous there - to by the defendant.

Tried before Hon. J. M. Carmichael. This was a suit by Frazer & Co., a partnership consisting of Charles and Nathan Frazer against appellee for delay in delivering a telegram sent to plaintiffs by S. T. Frazer, in consequence of which, it was alleged, they sold certain cotton at a less price than they would have sold it had said telegram been delivered within a reasonable time.

<p>Appeal from Bullock Probate Court.</p> <p>Heard before Hon. S. T. Frazer.</p> <p>The credit of $2,890 was properly given tlie administrator.' — Code, 1886, § 2664; Schouler on Executors & Adm’rs, §§ 315, 317, 320; 70 Ala. 575; 66 Ala. 35.</p>

Tried before Hon. L F. Box. The appellees Beed & Partlow, sued the Woodstock Iron Company, appellant, for breach of an oral contract. Beed & Partlow were to convert wood into charcoal and furnish the same to the Iron Co. at $5.75 per hundred bushels, of which sum the Iron Co. was to retain $1.50 for the expense of cutting and cording the wood, A large quantity of wood had been cut and corded, when the same was destroyed by fire.

Tried before Hon. J. M. Carmichael. This case was before the Court on former appeal, 78 Ala. 511. The suit was brought by appellants to recover the price of nine and a half tons of Alabama Fertilizer” sold and delivered by them to defendant. The defense set up is that jilaintiff agreed to sell and deliver to defendant twenty tons of this fertilizer at a stipulated price with notice that it was intended for use on defendant’s cotton crop.

Tried before Hon. John B. Tally. Tlie contract is ' supported by sufficient consideration. — 35 Ala. 169; 65 Ala. 248. There was error in admitting the testimony of Nicholson, no sworn plea denying execution of instrument having been filed.

Tried before Hon. John B. Tally. On the trial the court refused to allow defendant, Agnew, to introduce any testimony tending to show failure of consideration of the note sued on, and set out in the opinion, and charged the jury that if they believed the evidence they must find for plaintiffs for the amount of said note with interest thereon.

Tried before Hon. John P. Hubbard. The facts appear in the opinion. The charges given at request of plaintiff Chidester and excepted to by Liddell were as follows: 1.

Tried before Hon. John P. Hubbard. ' 1. The loss by fire was not the proximate result of delay in selling the cotton, and tlie appellants are not answerable in damages. 23 Ohio State, 532; 10 Wallace, 176; 13 Gray, 481; 115 Mass. 304; 91 Penn. St. 310; 33 Mich. 6. 2.

Tried before Hon. John P. Hubbard. Evidence of tbe suit against McCullough for tuition of tbe ward was improperly allowed against defendant. — 1(5 Ala. 3082 Stew. & Port. 28; 1 Brick..Dig. 841; 52 Ala. (538; 67 16. 55; 1 Greenleaf Ev. § 163.

Tried before Hon. Jas. W. Lapsley. This was an action of detinue brought by the appellant, The Singer Manufacturing Company against the appellee, L. Belgart, for the recovery of a gray mare.

Tried before Hon. O. J. Semmes. Appellant, Hoyt & Bros. Manufacturing Company, an Illinois corporation, brought an action against Turner & Oates for tlie alleged conversion of certain machinery, bought by Turner & Oates Horn- one Lyles, the original purchaser of said machinery from the plaintiff. The ground of action and the general nature of the evidence appear in the opinion.

Tried before Hon. H. A. Sharpe, This was an action brought by the appellee, B. F. Eborn, against the appellants, The Jefferson County Savings Bank and others, and seeks to recover both actual and punitive damages for the wrongful and vexatious suing out of an attachment by the defendant corporation against the said Eborn. There were several grounds of demurrer interposed by the defendant to the plaintiff’s complaint.

Tried before Hon. John B. Tally. This was an action brought by the appellees, T. G-. Miller & Bro., against the appellant, A. J. Horton, for the recovery of advances made the defendant, as tenant, by the plaintiffs, as landlords, for the purpose of enabling him, the defendant, to make a crop. The suit was commenced by attachment issued from a justice of the peace’s court.

Tliis was an application to the Supreme Court by Augustus Barnes, administrator of J. B. Barnett, for a writ of mandamus to the.Hon. J. M. Carmichael, presiding judge of the Circuit Court of Lee county, commanding him to set aside and vacate a certain order made by him in a cause pending in said Circuit Court, as fully appears in the opinion of the Supreme Court. No exemption can be claimed against the landlord’s lien for rent.

Atpeal from Clay Circuit Court. Tried before Hon. John B. Tally. Hardy & Co., appellants, plaintiffs below, obtained judgment against one Nolen, and execution thereon issued and was levied on certain cotton and corn in possession of said Nolen. Ingram, appellee, appeared as claimant of the property under the statute. The' issue was found in favor of claimant and Hardy & Co. appealed. Section 8004 of the Code of 1886 is not retroactive. — 83 Ala. 440;,Jb. 408; lb. 299.

Tried before Hon. S. H. Spbott. The suit • is founded on two county warrants alleged and purporting to be issued by the commissioners court of Pick-ens county, and signed by the probate judge, one for $2,878 to C. W. Moore, administrator of William Robinson, on the 1st day of February, I860, and the other for $1,188 to D. P. Davis, or order, on the 28th day. of February, 1867.

<p>Appeal from Pickens Probate Court.</p> <p>Heard before Hon. Thos. G. Williams.</p>

Heard before Hon. Bartlett Owen. 1. Probate Court erred in granting tbe order when no notice bad been given tbe heirs. — Anderson v. Bradley, 66 Ala. 625; Mead v. Larkin, lb. 87; Wilburn v. McCulley, 63 Ala. 436. 2. When tbe application was made, W. M. Ligón bad ceased to be administrator. — May v. Marks, 74 Ala. 249; 82 Ala. 223; 66 Lb. 389; 52 lb. 124. Appellants were not entitled to notice. — Code of 1886, §§ 2124; 2107; Dugger v. Tayloe, 60 Ala. 594.

<p> Motion to Quash Execution. </p> <p>1. Affirmance of judgment; merger. — When a judgment is affirmed by this court on appeal, the judgment. o£ the lower court is merged in the judgment of this court, so that it can not be altered by the lower court, nor can it bo amended by this court, after the expiration of the term at which it was rendered.</p> <p>2. Same; execution of judgment in favor of infant or next friend. — A judgment in favor of an infant, suing by his next friend, having been affirmed by this court on appeal without mentioning the next friend, an execution subsequently issued will not be quashed because it follows the affirmed judgment.</p>

Tried before Hon. S. H. Spbott. Thomas Andrew Woods brought a statutory action of ejectment against the Montevallo Coal and Transportation Company for the recovery of lands specifically described in his complaint. Issue was joined on the plea of general issue and the special plea of the statute of limitations of ten years adverse possession.

Tried before Hon. Jas. W. Lapsley. The plaintiff, and appellant, showed his prior possession under claim of ownership, which was sufficient to authorize a recovery. — 70 Ala. 385; 08 lb. 383; 38 lb. 44; 05 lb. 208. It . is further shown that defendant’s ancestor went in under plaintiff and that defendant’s claim is in right of such ancestor, and therefore they can not dispute plaintiff’s title. Plaintiff must make out kis case.

Heard before Hon. Thomas Cobbs. In 1881, the Alabama Great Southern Railroad Company brought a statutory action of ejectment against the South & North Alabama Railroad Company for the recovery of a certain strip of land therein described, extending through the city of Birmingham, being part of its right of way. This bill was filed for the purpose of enjoining that action and to obtain specific performance of the contract hereinafter set out.

Heard before Hon. Thomas W. Coleman. The bill was filed May 27, 1887, by Michael A Lyons et al. against Mrs. Untreiner and husband, to subject certain property of Mrs. Untreiner to the payment of her indebtedness to complainants. A supplemental bill was filed June 11th, 1887, making Mary C. Rooney an additional party, and setting up that a sale of said property had been made by Mr. and.

<p> Bill in Equity by Creditors to set (¡.side Fraudulent Conveyance. </p> <p>1. Registered deed in Georgia; certified copy as evidence. — Under the statutes of Geoi'gia, as proved in this case, a deed duly registered is admissible as evidence, unless its execution is denied on oath; hut a certified copy is not admissible as evidence, unless the loss or destruction of the original deed is satisfactorily proved; and when a certified copy is offered in evidence here, our courts will give effect to the Georgia statute.</p> <p>2. Burden of proof as to consideration of conveyance. — When the validity of a conveyance is attacked by creditors whose debts were contracted before its execution, the burden of proving that it is supported by a valuable and adequate consideration is cast on the defendants.</p> <p>3. Gift by husband to wife, and subsequent conversion. — A gift of money by the husband to his wife is valid against all persons except liis existing creditors, and creates in her a separate estate; and his subsequent conversion of the money to his own-uses makes him her debtor for the amount so converted.</p> <p>4. Sale by insolvent debtor to creditor; validity as against other creditors. A debtor who is in failing circumstances, or even insolvent, may sell and transfer the whole of his property to one or more of his creditors, in satisfaction of their antecedent debts; and if there is no material difference between the value of the property and the amount of the debts, and no use or benefit is reserved to the debtor himself, the transaction will he sustained as against his other creditors.</p>

Heard before Hon. Thomas W. Coleman. The appellee, Willoughby J. Dees, filed this bill against Joseph M. and Mary J. Lyon, and Calvin Dees, and sought to set aside an execution sale of certain lands, made January 15th, 1885, under a certain judgment recovered in the Circuit Court of Choctaw county on the 29th of April, 1880, by one Ward against Calvin Dee-s and appellee, Willoughby Dees, in the sum of $482.70 and costs, and by said Ward assigned to appellant, J. M. Lyon,…

Heard before Hon. Thos. W. Coleman. This was a bill filed by the appellee, Sallie Morgan, M. L. Morgan, her husband, and Silas Brunson, against Matthew Brunson and C. S. Lee, and sought to have the title to a certain tract of land described in the bill divested out of the defendants and invested in the complainants. The facts as they appear in the record are sufficiently stated in the opinion of the court.

Heard before Hon. S. K. McSpadden. 1. Tlie bill is multifarious as expressly settled in Clay v. Gurley, 62 Ala. 14. 2. There is no necessity for a discovery, since the bill alleges fraudulent sales of property worth much more than amount of plaintiff’s demand. 3. There is no necessity for removal of the administration into the Chancery Court. Complainants can obtain relief without'removal, if •they are entitled thereto. 1.

<p>Appeal from Colbert Chancery Court.</p> <p>Heard before Hon. Thomas Cobbs.</p>

<p>7n F(IvFy between Stockholders in Private Corporation, for Specific Execution of Agreement to hold and vote Slock in Trust.</p> <p>1- Specific performance of agreement for purchase of personal properly. As a general rule, a court of equity will not decree the specific execution of an executory agreement to purchase personal property, the remedy at law for a breach being adequate-; but, in special cases where the reason of the rule does not exist, as in case of heirlooms, family relics, and sometimes stock in a private corporation, specific performance may be decreed.</p> <p>2. Agreement among stockholders to hold and vote slock as unit. — An agreement among several stockholders of a joint stock company, that they will hold tboir stock in trust, and vote it as a unit in all matters pertaining to the government of the corporation, as determined by a majority of their number, is not per se illegal; but, whether a stipulation tbat tlie agreement shall continue for a term of several years is not contrary to public policy, and whether, if legal, a court of equity will decree its specific performance, 'are questions not decided.</p> <p>3. Same; stipulation in restraint of alienation. — A further stipulation in such agreement in general restraint ol alienation — as, that the purchaser should not acquire the right to vote, and that any stockholder, desiring to sell, should give the others the refusal of his stock — is condemned by the principles of the common-law, and a court of equity will not enforce it. “ .</p>

Heard before tbe Hon. Thor. Cobbs. The alleged illegal election of directors is the gravamen of the bill; without it there is no equity. The answers deny every material allegation. The injunction should be dissolved. — High on Inj. § 89(3.