Volume 87 — Alabama Reports

From the Circuit Court of Conecuh. Tried before the Hon. John P. Hubbard. The defendant and petitioner in this case, W. H. Herring-ton, was indicted for embezzlement; the indictment being found in October, 1886, and charging, in different counts, embezzlement of the county revenues, and embezzlement by an agent or bailee.

Application by petition on the part of Wm. Held: after arrest and surrender, to answer other criminal prosecutions; and this must include judicial proceedings instituted after his arrest. — Spear on Extradition, 72, 570-72, 530; 47 Mich. 481; Whart. Grim. Law, 7th ed., vol. 3, p. 34, § 2956 a. cited 51 Amer. Dec. 400; 28 Fed.

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

From the Criminal Court of Jefferson. Tried before the Hon. S. E. Greene. The defendants in this case, John Emmonds and Henry Williams, were jointly indicted for burglary, in breaking and entering “the store of the Perry Mason Shoe Company;” were jointly tried and convicted, and sentenced to the penitentiary for the term of two years. There was no demurrer to the indictment, and no motion in arrest of judgment.

Ebom the Circuit Court o£ Lauderdale. Tried before tbe Hon. H. C. Speake. The defendant in this case was indicted for the larceny of one hundred dollars in gold coin, the personal property of Thos. P. Earnest, consisting of four $20 pieces, one $10 piece, and two $5 pieces.

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

<p>From the Criminal Court of Jefferson.</p> <p>Tried before the Hon. S. E. Greene.</p>

Erom the City Court of Mobile. Tried before the Hon. O. J. Semmes. The indictment in this case contained two counts, one charging the defendant with burglary, and the other with larceny from a dwelling-house; the house broken and entered, and the goods stolen therefrom, being alleged to be the property of Emma Harris.

Erom the Circuit. Court of Couecub. Tried before the Hon. John P. Hubbard.

From the City Court of Mobile. Tried before Hon. O. J. Semmes. The defendant in this case, Caroline Perry, a negro woman, was indicted for the murder of her daughter Mary, a child between ten and twelve years of age; was convicted of murder in the second degree, and sentenced to the penitentiary for the term of ten years. The defendant was blind, and was usually led about by the child.

From: the Criminal Court of Jefferson. Tried before tbe Hon. S. E. Greene. The indictment in this case charged that the defendant, Henry Fomby, with intent to injure or defraud, “did forge an order or instrument in writing, purporting to be the act of one Greene Milligan, which order is in the words and figures following,” setting it out.

Prom: the Circuit Court of Etowah. Tried before the Hon. John B. Tally.

From the City Court of Selma. Tried, before the Hon. Jona. Haralson. The defendant in this case, Willie Johnson, was indicted, jointly with Saunders Collier, for the murder of Frances Lodgers, by shooting her with a pistol; and being tried separately, a severance having been granted, was convicted of murder in the first degree, and sentenced to death by hanging.

From the Criminal Court of Jefferson. Tried before the Hon. S. E. Greene. The indictment in this case contained two counts, the first charging the defendants, W. W. Bailey and others, with the larceny of a trunk and its contents, alleged to be worth $250; and the second, that they received, concealed, or aided in the concealment of the trunk and its contents, knowing that the same had been stolen, and not having the intent to restore the property to its owner.

Application in the name of the State, on the relation of the Attorney-General, for a writ of prohibition to Hon. F. O. Bandolph, judge of the Probate Court of Montgomery, for the purpose of reviewing and quashing certain proceedings had before him on the petition of Joe Long, who was discharged from custody on a hearing on habeas corpus.

Prom the Circuit Court of Conecuh. Tried before the Hon. John P. Hubbard. The defendant in this case, Ed. Goley, was indicted for the murder of William Luckey, by shooting him with a gun, and on the first trial was convicted of murder in the second degree, and sentenced to the penitentiary for ten years; but the judgment was reversed by this court, on a former day of the present term, and the cause remanded. — 85 Ala. 333.

From the Circuit Court of Dale. Tried before the Hon. Jesse M. Carmichael. • The defendant in this case was indicted for rape, was convicted, and sentenced to the penitentiary for life. The order for the special venire is set out in the opinion of the court.

From the Circuit Court of Tuskaloosa. Tried before the Hon. S. H. Sprott. The defendant in this case, Jasper Poe, was indicted for the murder of 'Wallace Cooper, by shooting him with a gun; was convicted of murder in the first degree, and sentenced to the penitentiary for life. The parties were both freedmen, and it seems that they had married sisters, the daughters of Tom and Mary Hailey.

From the Criminal Court of Jefferson. Tried before the Hon S. E. Greene. The defendant in this case, Balph Clarke, was indicted for the murder of James Leatherwood, by shooting him with a gun or pistol; was convicted of murder in the first degree, and sentenced to the penitentiary for life.

From tbe Circuit Court o£ Dale. Tried before tbe Hon. Jesse M. Carmichael. Tbe defendants in tbis case, Greene Cotton and William Hendrix, freedmen, were jointly indicted, tried and convicted of committing a rape on Martba Fralisb, and were sentenced to tbe penitentiary for life. “On tbe trial,” as tbe bill of exceptions states, “evidence was produced by tbe State tending to sbow tbe defendants’ guilt.

Ebom the Circuit Court of Pike. Tried before the Hon. John P. Hubbard. The indictment in this case contained two counts, the first of which alleged that the defendant, Wes.

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

From: the Circuit Court of Madison. Tried before the Hon. H. C. Speake. The indictment in this case was found in February, 1882, and charged that the defendant, J. Taylor Norris, forcibly assaulted Mrs'. Sallie Bodgers, a married woman, with the intent to ravish her. The trial was had in March, 1889, on issue joined-on the plea of not guilty; the defendant being found guilty of an assault, and fined $225.

From tbe City Court of Montgomery. Tried before tbe Hon. Thos. M. Arrington. Indictment for assault with intent to murder. Conviction of assault and battery. Exceptions to charges given, and to tbe refusal of charges asked. Material facts stated in opinion. Under tbe undisputed facts of this case, by express statutory provision, tbe contract of hire existed between tbe parties, and tbe defendant bad a lien on tbe crops, enforceable by process of attachment. — Code, § 3065.

From tbe Circuit Court of Tuskaloosa. |Tried before tbe Hon. S. H. Sprott. indictment in this case charged that tbe defendant, “J. O. Bobbitt, whose Christian name is to tbe grand jury unknown, did falsely pretend to Columbus Dunlap, with intent to defraud, that representing some company, which is to the grand jury unknown, that desired to purchase land in this country, he had one hundred thousand dollars in Tuskaloosa, with which to purchase lands; and, by means of such…

<p> Indictment for Selling Spirituous Liquors without License. </p> <p>1. Illegal sale of liquor by infant, or agent. — A girl seventeen years old, living with her mother, may be convicted of selling liquor without a license and contrary to law (Code, §§ 4036-38), on proof that she measured out and delivered the liquor under the order or instructions of her mother, to whom it belonged, and to whom the money was paid by the purchaser.</p>

From tbe Circuit Court of Clay. Tried, before tbe Hon. Leroy F. Box. Tbe defendant in tbis case was indicted, by tbe name of Bicbard Mlinkers, for tbe seduction of Dora Wright, an unmarried woman; and pleaded in abatement that bis true name was Bicbard Monous, and that he bad always been known and called by that name.

<p>From the Circuit Court of Tuskaloosa.</p> <p>Tried before the Hon. S. H. Sprott.</p> <p>The defendant in this case, Dinah Marks, was indicted for the murder of Julia Cannon; was convicted of manslaughter in the first degree, and sentenced to the penitentiary for ten years. The only exceptions reserved during the trial relate to the exclusion of evidence, as shown in the opinion of the court.</p>

From the Circuit Court of Tallapoosa. Tried before the Hon. James R. Dowdell.

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

<p>From tbe Criminal Court of Pike.</p> <p>Tried before the Hon. H. C. Wiley, as special judge.</p> <p>cited Dale v. State, 27 Ala. 31; Wilson v. State, 31 Ala. 371. •</p> <p>cited Goehr cm v. State, 30 Ala. 542; Smith v. State, 52 Ala. 384; Bentley v. State, 32 Ala. 596; Caiothorn v. State, 63 Ala. 157; Summers v. State, 70 Ala. 16; Gilliam v. State, 71 Ala. 10; Wren v. State, 70 Ala. 1.</p>

<p> Indictment for Rape. </p> <p>1. Complaint of prosecutrix; impeaching witness by proof of contra-dietary statements. — On a prosecution for rape, the mother of the prosecutrix having testified that her daughter complained to her immediately after the commission of the offense, the defendant has a right to elicit the particulars of the compiaint; and he may impeach the witness, a proper predicate having been laid, by proof of prior contradictory statements out of court.</p> <p>2. Charge as to testimony of defendant. — Where the defendant has testified in his own behalf, a charge instructing the jpry that, in considering what weight they will give to his statements, ‘ it is their duty to remember that he is the defendant, and interested in the result of the verdict: and they may, for this reason, i£ they think it sufficient, entirely disregard his statement, if it is in con diet with the other evidence,” is erroneous, and ground of reversal.</p> <p>8. Consent implied from conduct. — Although the prosecutrix may not have consented in fact, yet, if her conduct towards the defendant, at the time of the alleged rape, was such as to create in his mind an honest and reasonable belief that she had consented, or was willing for him to have connection with her, a conviction should not be had; and the court should so instruct the jury, on request.</p>

Application by petition on tbe part of William Pierce, for a writ of mandamus directed to Hon. L. M. Lane, probate judge of Butler county, requiring him to issue to tbe petitioner a license to retail spirituous liquors in tbe town of Greenville.

From the County Court of Jackson. Tried before the Hon. E. Scott Parks, as special judge. The defendant in this case was indicted for an assault on a young lady, pleaded not guilty to the charge, but was convicted, and fined one -cent.

From the Circuit Court of Clarke. Tried before the Hon. ¥m. E. Clarke. The defendant in this case, Ben Squire, was indicted, jointly with one Dick Hawthorn, for the murder of William Johnson, by shooting him with a pistol; was found guilty of murder in the second degree, and sentenced to the penitentiary for the term of twenty years.

From tbe Circuit Court of Coffee. Tried before the Hon. Jesse M. Carmichael. This was a prosecution for trespass after warning, instituted by H. A. Goodman against W. J. Wilson, and was commenced before a justice of the peace, on the 8th November, 1888.

From the Circuit Court of Madison. Tried before the Hon. H. C. Speake.

From the Circuit Court of Madison. Tried before the Hon. H. C. Speake. The bill of exceptions in this case purports to set out “all the material evidence,” and the opinion of this court states the facts bearing on each point decided.

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

From tbe Criminal Court of Pike. Tried before tbe Hon. Wi. H. Parks. Tbe defendant in this case was indicted for verbal slander in charging that Jack Parker bad committed perjury in testifying as a witness on tbe trial of a criminal prosecution against said defendant and bis son. On tbe trial, tbe defendant pleaded not guilty, but did not demand a trial by jury.

Application by petition on behalf of Jeff. Held: and resulted in favor of prohibition, this court can not take judicial notice of the fact. (4.) The power to punish by fine, or imprisonment, does not give the power to punish by hard labor.

From the City Court of Selma. Tried before the Hon. Jona. Haralson.

<p>From tbe Circuit Court of Geneva.</p> <p>Tried before tbe Hon. Jesse M. Carmichael.</p>

<p> Indictment for Enticing away Laborer. </p> <p>1. Constituents of offense; consent of employer. — The consent of the employer, expressed in writing, or given in the presence of a credible person, is a defense to a prosecution for enticing away a laborer in service under a written contract (Code, § 3757); if the consent is conditional, as on payment of the amount due the employer, performance of the condition must he shown; and the person in whose presence the consent is given being presumed to he credible, in the absence of evidence to the contrary, the defendant is entitled to have the jury pass on the sufficiency of the evidence.</p> <p>2. Local jurisdiction. — If the employer and the defendant resided near each other, but in adjacent counties, and the. acts requisite to the consummation of the offense occurred in both counties, the jurisdiction is in either. (Code, § 3719.)</p>

Applications by petition, by John S. Printup and James M. Elliott, respectively, for the writ of mandamus to Hon. S. 3L McSpadden, presiding in the Chancery Court of Etowah, requiring and commanding him to allow them to intervene as parties in a suit pending in said court between other persons, on the facts stated in the opinion of the court. cited Cook on Stockholders, § 659; 2 Black, 715; Bayliss v. Railroad Co., 2 Biss. 193; Stout v. Lye, 103 U. S. 66; Bronson v. Railroad…

Tried before tbe Hon. Sam. H. Sprott. This action was brought by the Alabama Sipsey River Navigation Company, a corporation chartered by a special act of the General Assembly, approved March 2,1876, against the Georgia Pacific Railway Company, to recover damages on account of an alleged obstruction of said river by the defendant; and was commenced on the 13th February, 1888.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 22d December, 1886, by the appellant corporation, against William M. Neill; and prayed the rescission of a contract for the sale of several town lots in Sheffield, and the cancellation of the appellant’s conveyance to the defendant, as a cloud on the title, it having been recorded by mistake as alleged. The chancellor sustained a demurrer to the bill, and his decree is here assigned as error.

From the Circuit Court of Greene. Tried, before the Hon. Sam. H. Sprott. ™This action was brought by the Alabama State Bank, a corporation doing business at Birmingham, against the Bank of Eutaw, a partnership composed of B. B. Barnes and others, who conducted business as bankers at Eutaw, to recover one hundred bales of cotton; and was commenced on the 13th August, 1884.

Tried before the Hon. Thos. M. Arrington. This action was brought by P. M. Nicrosi against Jacob Abraham, and was commenced by attachment sued out on the 10th January, 1887.

Tried before the Hon. Henry C. Speake. This action was brought by Frank W. Hopkins, against Allen R. Campbell and Archibald Campbell, to recover damages for the wrongful and vexatious suing out of an attachment, as alleged; and was commenced on the 24th December, 1884. The defendants pleaded “the general issue, in short by consent, yith leaye to give any special matter in evideuce,” and issue was joined on this plea.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 9th November, 1888, by J. Stephen Yerby, against J. C. Harrison, Geo.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 7th February, 1888, by Ike Adler, against W. L. Aycock and W. L. Echols; and sought to redeem a house and lot in Gadsden, containing about one acre, which had been sold under execution against the complainant, in January, 1887, and of which the defendants were in possession, as sub-purchasers under Amos E. Goodhue, the purchaser at the sheriff’s sale.

Tried before the Hon. H. A. Shabpe. , This action was brought by John Gr. Alexander, against the appellants as partners, to recover an alleged balance due for materials furnished and work done by plaintiff in erecting a large brick building for defendants in the city-of Birmingham; and was commenced on the 21st October, 1887.

Tried before tbe Hon. John B. Tally. This action was brought by John B. Stuart, against R. C. Gunter and others, late partners doing business under the name of the Decatur & Chattanooga Packet Company; and was commenced on the 17th August, 1886.

Heard before the Hon. Thos. B. Wetmore, as special chancellor.

Tried before the Hon. John B. Tally. This action was brought by D. C. Case against E. L. Edgeworth and T. A. Lumsden, to recover the possession of a tract of land containing 160 acres, which was a part of section.28, township 7, range 7 east; and was commenced on the 7th February, 1887. The defendants pleaded not guilty, and issue was joined on that plea.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 3d December, 1888, by the Towers Hardware Company, a private corporation, against the Moore & Handley Hardware Company, another private corporation; and sought an injunction to restrain the defendant from selling “plow-stocks and plow-blades,” in violation of a contract made between the complainant and a partnership doing business under the name of Moore, Moore & Handley, which was composed of James…

Tried before the Hon. John P. Hubbard. This action was brought by Wilson Beck against J. P. West & Co., and was commenced by attachment, sued out on the 2d January, 1888, on the ground of the defendants’ non-residence. The defendants were tobacco manufacturers and dealers, doing business in Lynchburg, Virginia, and had employed the defendant, who lived in or near Brewton, Alabama, to serve them as travelling salesman.

<p> Action for Breach of Covenants in Conveyance. </p> <p>1. Dedication of streets. — There can be no complete dedication of land to public uses, without an acceptance by the public, by use or otherwise; and where the owner of a tract of land adjoining the limits of an incorporated town or city, having had it mapped and subdivided into lots and blocks, separated by streets, afterwards sells a part of the tract extending to the middle of a street as laid down on the map, this narrows the street at that point to one half of -its original width on the map.</p> <p>2. Conveyance of lot bounded by street.- — -A conveyance of a lot bounded by a street, in an incorporated city or town, passes to the grantee the fee to the centre of the street, subject to the public easement; and the same rule applies to a conveyance of lots outside of the corporate limits, which have been laid off with a view to future extension of the corporate limits.</p> <p>3. Covenant of seizin; breach of. — -A covenant of seizin is broken, if there is an outstanding estate in a third person, or a material deficiency in the quantity of land conveyed, or where the grantor has not substantially the same estate, both in quantity and quality, which he professes by his deed to convey; but the existence of a public easement, as a street or right of vay, is not a breach of such covenant.</p>

Heard before tbe Hon. Thos. M. Arrington. Tbe bill in this ease was filed on tbe 19tb June, 1889, by Alex.

Heard before the Hon. Thomas Cobbs The bill in this case was filed on the 19th September, 1887, by V. K. Stevenson and others, as heirs at law of V. 3L Stevenson, deceased, against John E. Anderson, Isaac Hames, and others; and sought a partition of certain lands between complainants and said Anderson, and an account of tbe purchase-money received by Anderson on tbe sale of lots, or parcels of the land, more than ten years before tbe. bill was filed.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 2d July, 1887, by Walter Brothers, suing as partners, against D. S. Troy, J. T. May, and C. B. Ferrell; and was called an “original bill in the nature of a cross-bill to a suit instituted by said May against said Walter Brothers, Troy and Eerrell,” which sought to enforce a vendor's lien on land.

Tried before the Hon. Sam. H. Sprott. This action was brought by C. C. Beatty, against Alsey Clements and Morgan Clements, to recover damages for the alleged breach by the defendants of a written contract,'by which they sold to plaintiff all the pine timber then standing on a tract of land particularly described, “which will make saw-logs twelve feet long, and will square ten inches;” and was commenced on the 20th March, 1888. The only plea was the general issue.

Heard before the Hon. H. A. Sharpe. The bill in this case was filed on the 25th April, 1889, by W. H. H. Judson and A. J. Robinson, citizens, tax-payers, and owners of property in Bessemer, against the corporate authorities of said city; and sought to enjoin the issue of certain corporate bonds for municipal purposes. The City Court dismissed the bill, on motion, for want of equity; and this decree is here assigned as error.

Heard before the Hon. Thos. M. Arrington. The bill in this case was filed on the 28th December, 1885, by the Montgomery Gas-Light Company, a private corporation, against the corporate authorities of the city of Montgomery; and prayed an injunction, restraining the defendants “from entering into any contract, or passing any •ordinance, granting to any person or corporation the right to lay pipes for conducting gas under any street, alley or thoroughfare within the corporate…

Tried before the Hon. ¥i. E. Clarke. This was a statutory contest, between Forcheimer & Co., judgment creditors of A. J. Harris, who had sued out a garnishment against Lehman, Durr & Co., as the debtors of said Harris; and Leinkauff & Strauss and C. A. Stern & Co., each claiming a part of the fund which the garnishees adr mitted to be in their hands, and which they paid into court.

Heard, before the Hon. Thos. W. Coleman. The bill in this case was filed on the 22d September, 1888, by M. Levy & Brother, “a late mercantile partnership, which was composed of Maurice Levy and Samuel Levy,” as creditors of Milton J. Brasfield, deceased, against Margaret J. Tompkins, as the administratrix of his deceased wife, Mrs. Sallie A. Brasfield, and their two infant children, Kate and Sallie Brasfield; and sought to reach and subject, in the hands of said…

Heard before the Hon. S. K MoSpadden. The bill in this case was filed on the 11th February, 1887, by J. F. B. Jackson, against C. W. Stanley and his wife, Mrs. Mary E. Stanley; and sought to establish and enforce a vendor’s lien on land for the unpaid purchase-money, The contract for the sale of the land was made between complainant and said C. W. Stanley, who executed his several notes for the purchase-money, which were past due and unpaid when the bill was filed.

Tried before the Hon. O. J. Semmes. This action was brought by Joseph C. Calhoun, against Hannan & Michael as partners, with others their sureties; was founded on an attachment bond, and was commenced on the 19th September, 1887.

Tried before the Hon. Henry C. Speake. This action was brought by A. I). Hall, Minerva George, and George A. Love, minors, suing by their next friend, against Samuel Caperton, to recover the possession of a tract of land containing about 105 acres, which was particularly described in the complaint; and was commenced on the 1st October, 1886.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 26th February, 1888, by the 'Woodstock Iron and Steel Company, and the Anniston City Land Company, two private corporations organized under the general statutes, against Mrs. Eliza A. Sparks and others, heirs at law of Mrs. Sallie J. W. McAdams, deceased; and sought the specific execution of a defective conveyance of a tract of land, executed by Mrs. McAdams in her lifetime to George W. Brannon,…

<p> Motion to Substitute Record of Destroyed Judgment. </p> <p>1. Amendment by striking out part oj papers. — On motion to substitute a judgment, the record of which has been lost or destroyed, an amendment may be allowed striking out the summons and complaint as a part, of the papers to be. substituted.</p> <p>2. Defense's against substitution. — On motion to substitute the record of a judgment which has been lost or destroyed, the copy proposed to be substituted reciting the service of process on the defendant, he may controvert the correctness of the copy in this particular, but not the recitals of the original judgment as to the service of process on him.</p>

Heard before the Hon. Thos. A. Street. In the matter' of the estate of Elisha It. Chandler, deceased, on final settlement of the accounts and vouchers of John H. Chandler as executor, which were contested by the widow and minor children of said decedent.

Tried before the Hon. Henry C. Speake. This action was brought by the appellants, suing as partners, against the appellee, a private corporation; and was commenced on the 25th August, 1884.

Heard before the Hon. H. A. Sharpe. The policies here sought to be reinstated were procured for complainant by Smith, on his cancellation of. her original policy in the London, Liverpool & Globe Insurance, which was procured through the agency of Flanagan & Langley, and which was cancelled by Smith in obedience to orders from said company; and these policies were afterwards (but before a loss) cancelled by him, as per instructions fiom the companies, and other policies…

Heard before tbe Hon. Thos. W. Coleman. ' In the matter of the assignment by John W. McCaskey to Edward N. Jones, as trustee, for the benefit of the creditors of the late firm of McCaskey & Ratcliff, a petition was filed in the said court, on the 22d April, 1886, by the trustee, asking an order requiring creditors to file their claims, and for a partial distribution of the assets among them. • Under the order requiring creditors to file their claims, a claim was filed by JD.

Heard before tbe Hon. John A. Foster. The bill in this case was filed on the 2d July, 1883, by Edward Thomas and John Thomas, children and heirs at law of John B. Thomas, deceased, against W. L. Tillman, B. B. Burts, Mrs. Bebecca P. Kennedy, and others; and sought to vacate and set aside a sale of certain lands, which had belonged to the decedent in his life-time, and were sold under a probate decree on the petition of the widow as administratrix.

Tried before the Hon. John P. Hubbard. This action was brought by Goetter, Weil & Co., suing as partners, againt John E. Harmon, to recover certain goods which plaintiffs had sold to Harmon Brothers, with damages for their detention; and was commenced on the 7th January, 1887. The transcript contains what purports to be a bill of exceptions, but it is not signed by the presiding judge, and the record shows no agreement or admission supplying the defect.

Heard, before the Hon. James B. Head. In the matter of the petition of the Woodward Iron Company, a private corporation, addressed to the presiding judge of said circuit, for a 'writ of prohibition, mandamus, or other appropriate process, directed to Hon. E. H. Cabaniss, presiding as special judge of probate in and for said county of Jefferson, “restraining and prohibiting him from further proceedings” in the matter of a petition filed by the Birmingham, Powderly & Bessemer…

Heard before tbe Hon. Tiros. M. Akmngton. The appeal in this case is sued out from an order for the appointment of a receiver, under a bill filed by Miller, Schram & Co., as simple-contract creditors of Moritz & Weil, against their said debtors and others, seeking to set aside as fraudulent a transfer of their outstanding notes and accounts by said Moritz & Weil. cited High on Receivers, §§ 111-13; Brktvjkhd Iron Works v. Foster, 54 Ala. 622.

Tried before the Hon. John B. Tally. This action was brought by Bellenger & Balls, suing as partners, against James Lancaster, T. M. Anderson, F. M. Beeves, and W. L. Aycock; was founded on a statutory claim bond, which was signed by said Lancaster as principal, and by the other defendants as his sureties; and was commenced on the 16th August, 1888.

Heard before the Hon. B. A. Walker. In the matter pf the petition of Thos. W. Shows, for a writ of habeas corpus directed to James P. Pendry, alleging his illegal detention of Frances W. Davis, an infant, to whose custody the petitioner claimed to be entitled. Several rulings of the court on pleadings, shown only by the bill of exceptions, with other matters, are here assigned as error.

Heard before the Hon. Thomas Cobbs. (1.) In.cases like this, where a party seeks to change the terms of a written instrument by oral evidence, the court proceeds with great caution, and requires the mistake to be established clearly and satisfactorily.- — Campbell v. Hatchett, 55 Ala. 548; Turner v. Kelly, 70 Ala. 85; Hinton v. Insurance Co., 63 Ala- 488; Alexander v. Caldwell, 55 Ala. 517; Berry v. Sowell, 72 Ala. 14.

Tried before the Hon. Jesse M. Carmichael. This action was brought by the appellees, suing as partners, against the appellant, a private corporation; and was commenced before a justice of the peace on the 5th of January, 1884.

John Moore, the presiding judge of the Fourth Judicial Circuit, refusing to grant a mandamus to Hon. E. H. Dawson, as President of the Board of Inspectors of Convicts, requiring him to restore and allow an item of $80.75 as a part of the costs in a criminal prosecution against one Frank Smith, who had been convicted of grand larceny, and sentenced to the penitentiary for the term of four years.

Heard before tbe Hon. S. K. McSpadden. Tbe bill in tbis case was filed on tbe 16th February, 1888, by William 8. Tillison and tbe heirs at law of Francis M. Tillison, deceased, against W. T. Ewing; and sought tbe cancellation of a conveyance for a tract of land, executed to tbe defendant, in 1863, by Thomas Hollingsworth, since deceased. Tire chancellor dismissed tbe bill, on motion, for want of equity; and bis decree is here assigned as error.

Heard before the Hon. W. J. Hilliard. In the matter of the application of Jonathan Williams, for the correction of a mistake in the description of lands sold under a probate decree in 1871, as contained in the petition and order of sale. The lands had belonged to W. A. Carpenter, deceased, and were sold on the petition of his administrator, alleging (1) a deficiency of personal assets to pay debts, and (2) that the lands could not be equally divided without a sale.

Tried before the Hon. James W. Lapsley. This action was brought by Merit Street against John W. Knowles, to recover damages for an alleged conversion of a stock of goods, and was commenced on the 24th March, 1885.

Apleal from, the Chancery Court of Bullock. Heard before the Hon. John A. Foster. The original bill in this case was filed by Lehman, Durr & Go., commission-merchants in Montgomery, against J. F. Comer andH.

Tried before the Hon. Sam. H. Sprott. This action was brought by R. R. Brown,- against the appellee, a domestic corporation, to recover $65 as damages for the loss of two cows and ten turkeys, alleged to have been negligently killed by the defendant’s locomotive and cars; and was commenced in a justice’s court, on the 6th September, 1887.

Tried before the Hon. James M. Carmichael. This action was brought by Osborn C. Bullock, against John C. Yann; was founded on the defendant’s promissory note under seal, for $281.74, which was dated April 9th, 1887, and payable on the 1st December, 1887, “to the order of Fannie L. Paschal, or bearer;” and was commenced on the 9th March, 1888.

Tried before the Hon. Jesse M. Carmichael. This action was brought by J. Loeb & Brother, suing as partners, against ¥m. T. Maund, to recover damages for the conversion of certain goods particularly described; and was commenced on the 30th March, 1887.

Tried before the Hon. O. J. Semmes. This action was brought by John O’Donnell, against the Bay Shell-Road Company, a private corporation, to recover damages for an alleged trespass committed by defendant’s servants and agents, in seizing plaintiff’s cattle while trespassing on said shell-road, and detaining them until plaintiff paid the required fees and expenses in order to procure their release; and it was commenced on the 12th April, 1887.

Tried before the Hon. Leroy E. Bos. This action was brought by Mrs. Emily P. Walden, tbe widow of George S. Walden, deceased, against J. H. Speigner, to recover the possession of a bouse and lot in Talladega; and was commenced on tbe 23d of April, 1887. Tbe house and lot was tbe family residence of said George S. Walden at tbe time of. bis death, and was mortgaged by him in September, 1879, to L. E. Parsons, bis wife joining with him in tbe conveyance.

Tried before the Hon. W. E. Johnston. The record in this case shows these facts: On the 28th October, 1887, an attachment for rent was sued out before a justice of the peace, in favor of Mrs. C. A. Thompson against Percy Olmstead, and was levied on certain articles of household furniture, on which several executions had already been levied, one in favor of R. W. Miller, and the others in favor of E. J. Cobb; and said Cobb'and Miller thereupon signed, as sureties for said…

Tried before the Hou. John B. Tally. This action was brought by M. C. Bell against J. A. Weaver, to recover a bale of cotton; and was commenced in a justice’s court, on the 3d of November, 1885.

<p> Bill of Interpleader, filed by Sheriff. </p> <p>1. Intervention of third person as party by petition; waiver of objection. Although it is irregular, after an interpleader suit is regularly at issue, to allowa third person to intervene as a claimant of the fund, on his own petition; yet, if no objection to his intervention is made until after the lapse of more than seven years, when he has lost all other remedies by lapse of time, the objection comes too late.</p> <p>2. Same; error without injury. — If the party objecting was not, and could not have been injured, by allowing the petitioner to remain in the cause as a party, he can not complain of the ruling, even if it was erroneous ; as when he disclaims all interest in that portion of the fund allotted to the petitioner.</p> <p>3. Interest against attorney, on money received from fund in court. When a fund in court, in an interpleader suit, is paid to the attorney of one of the parties pending the litigation, on his own motion, he is properly charged with interest on it at the final hearing.</p>

Tried before the Hon. Leroy E. Box. This action was brought by Mrs. Emily P. Walden, the widow of George S. Walden, deceased, against J. H. Speigner, to recover the possession of a house and lot in Talladega; and was commenced in a justice’s court, on the 22d of April, 1887.

Tried before the Hon. John P. Hubbard. This action was brought by S. G. Perry, against the appellant corporation, to recover damages for personal injuries sustained by the plaintiff while in the defendant’s employment as a brakeman; and was commenced on the 5th April, 1888.

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 1st of February, 1887, by Mrs. Martha A. Mitchell, who was the wife of Daniel Mitchell and the daughter of Augustus A. Winston, against her said father and husband; and sought to establish and enforce a resulting trust in her favor, in certain lands which had belonged to her husband, and which had been sold under execution against him, her father becoming the purchaser, and taking the title in his…

Heard before the Hon. Emmett E. Crook. In the matter of the final settlement of the accounts and vouchers of Jacob E. Dailey, as guardian of William C. Bentley.

Tried before the Hon. James W. Lapsley. This action was brought by Henry H. Huckaba against Mrs. Elizabeth Abbott, the widow of James W. Abbott, deceased, to recover the possession of a tract of land particularly described in the complaint; and was commenced on the 3d May, 1887.

Tried before the Hon. Thos. M. Arrington. This action was brought against Schloss & Kahn as partners, by the “Montgomery Trade Company, a corporation,” as described in tbe complaint, or, as described in tbe summons, “a corporation organized under tbe laws of Alabama;” and was commenced on tbe 15th September, 1888.

Apleal from tbe Chancery Court of Etowab. Heard before tbe Hon. S. K. McSpadden. This is a branch of a case wbicb bas been before tbe court on three former appeals. — Prielcett & Maddox v. Sibert, 71 Ala. 194; s. a, 75 Ala. 315; Aderholt v. Henry, 82 Ala. 541.

Tried before the Hon. Leroy E. Box. This action was brought by W. E. Brinkerhoff, against the Calera Land Company, a private corporation, and Arthur Adams, its agent as alleged; was commenced on the 5th March, 1887, and sought to recover damages for an alleged trespass on land.

Heard before the Hon. S. H MoSpadden. The bill in this case was filed on the 8th February, 1887, by W. H. Denson as trustee, and R. B. Kyle and Sam.

<p>Appeal from the Circuit Court of Lowndes.</p> <p>Tried before the Hon. John Moore.</p> <p>cited Amer. U. Tel. Co. v. Western U. Tel. Co., 67 Ala. 26; Smith v. Insurance Co., 4 Ala. 558; Lindsey v. McGehee, 6 Ala. 16; Morrell v. Quarles, 35 Ala. 544; Walker v. Gregory, 36 Ala. 180; Oxford Iron Co. v. Spradley, 46 Ala. 98, and 51 Ala. 171; Speed v. Cocke, 57 Ala. 209; Ware v. Jones, 61 Ala. 288; Pac. Guano Co. v. DawMns, 57 Ala. 115; Mullen v. Pac. Guano Co., 66 Ala. 582; Robertson v. Hayes, 83 Ala. 290; Woods v. Armstrong, 54 Ala. 150; Lee v. Cassen, 61 Ala. 312; Chitty on Contracts, 982, note; 2 Parsons on Contracts, 673.-4; Robertson v. Robinson, 65 Ala. 610; Ware v. Curry, 67 Ala. 274; Toler v. Armstrong, 11 Wheat.; 13 Amer. Rep. 737; 44 Penn. St. 9.</p>

Aureal from the Circuit Court of Calhoun. Tried before the Hon. John B. Tally. This action was brought by Marshall Alexander (nowKoberts) against the Woodstock Iron Company, and the Anniston City Land Company, private corporations, to recover the possession of a large tract of land containing more than eight hundred acres; and was commenced on the 13th of May, 1887.

Heard before the Hon. Emmett E. Crook. In the matter of the estate of Edward C. Murray, deceased, on the petition of the infant heirs to set aside an order for the sale of the lands of the estate, which had been granted on the petition of Hugh Stevenson, the administrator, alleging that a sale was necessary to pay debts. The order of sale was made on the 19th May, 1887, and the petition to set it aside was filed on the 25th March, 1889.

Heard before the Hon. S. H McSpadden. The bill in this case was filed on the 24th of November', 1885, by J. R. Graham, his wife and daughter, against E. M. Gray and M. T. W. Christian; and sought an injunction against a judgment at law for $284, which the defendants had obtained against J. R. Graham, and a settlement of the accounts of a partnership which had formerly existed between all the parties to the suit.

<p>Al'i’EAL from the Chancery Court of Jefferson.</p> <p>Heard before the Hon. Thomas Cobbs.</p> <p>cited Wood on Nuisances, §§ 226-82; House & Smith v. Martin & Flowers, 75 Ala. 510; Antomarchi v. Bussell, 63 Ala. 356; Partridge v. Gilbert, 15 N. Y. 601; Brooks v. Curtis, 50 N. Y. 639; Bay v. Lynes, 10 Ala. 63; St. James Church v. Arrington, 36 Ala. 546; Moody v. McClelland, 39 Ala. 45; Rosser v. Randolph, 7 Porter, 238; Ferguson v. Selma, 43 Ala. 398; Washb. Easements, 621-25; Platt v. Eggleston, 20 Ohio St. 414; State v. Mayor of Mobile, 5 Porter, 279; 1 High on Inj. §§ 739, 788; 2 Story’s Equily, § 925; 38 Md. 128; 28 Ind. 79; 45 Amer Dee. 347, 351, note; 4 Sandf. N. T. 480; 70 N. T. 440; 11 Humph. 412; Davidson v. Isham, 1 Stockt. 186; 12 Mass. 223; 19 Eng. L. & Eq. 639; 3 My. & H 169.</p> <p>cited Lloyd on Buildings, § 184; VollmePs Appeal, 61 Penn. St. 128; Danenhauer v. Devine, 32 Amer. Bep. 627; 35 Iowa, 531; 4 Allen, Mass. 149; Nininger v. Nomoood, 72 Ala. 281; Wood on Nuisances, 777; High on Injunctions, § 792; White v. Flanagan, 54 Amer. Dec. 668; 10 Amer. Bep. 545; Washb. Easements, 453.</p>

Heard before the Hon. S. K McSpadden. The bill in this case was filed on the 10th March, 1886, by Amelia C. and Lula D. Brown, the partners composing the firm of Rowan, Dean & Co., and Isaac L. Swan as trustee, against W. S. Scott, Winfield Scott and others, heirs at law of William Scott, deceased; and sought the foreclosure of two mortgages, or deeds of trust in the nature of mortgages, executed by said William Scott to Swan as trustee, to secure two notes due to Rowan,…

Heard before the Hon. Thomas Cobbs. QThe appeal in this case is sued out from a decree, or interlocutory order, sustaining a demurrer to a bill, which was filed on the 30th of June, 1888, by the Globe Iron Hoofing and Corrugating Company, a corporation chartered under the laws of Ohio, against Edwin Thacher, Daniel Mooar, the Decatur Iron Bridge and Construction Company, a private corporation under the statutes of Alabama, the First National Bank of Decatur, and the Exchange…

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 7th September, 1886, by James T. Dye, against the Clifton Iron Company, a private corporation; and sought to enjoin and restrain the defendant from so using the “washers” and other appliances connected with its smelting furnace at Ironaton, as to pollute the water of a small running stream, called the “Dry Fork of Cheka Creek,” which flows through complainant’s lands below, and otherwise injuring…

Tried before the Hon. H. A. Shabpe. The appellees in this case, Robert J. Miles & Co., obtained a judgment in said City Court, on the 23d August, 1887, against Gabert & Ratliff as partners, and, on the 28th November, 1887, sued out a garnishment on it, which was served on Mrs. N. A. Bustin, as the debtor of said Gabert & Ratliff.

Tried before the Hon. John P. Hubbard. This action was brought by W. B. Jones & Brother, suing as partners, against Henry W. Clark, and was commenced on the 17th September, 1886.

Tried before the Hon. John P. Hubbard. This action was brought by K. E. Bolling & Son, suing as partners, against M. P. LeGrand; was commenced on the 18th December, 1888, and was founded on a bill of exchange for $2,664.05, which, as described in the complaint, was drawn on the 1st June, 1887, by the Southern Bailway Construction and Land Company, upon C. W. Scofield, as president of said company, and also as president of the Montgomery & Florida Bailway Company, and by him…

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 3d March, 1885, by David A. Steele, as a judgment creditor of John R. McDowell, with an execution returned “No property found,” against said McDowell, his wife, Daniel S. Pritchett, and others; and sought to set aside, as fraudulent, two mortgages executed by said McDowell, one to his wife, and the other to said Pritchett, and to subject the property to the satisfaction of the complainant’s…

Heard before the Hon. S. K. McSpadlen. The bill in this case was filed on the 29th February, 1888, by L. G. Teague, against C. A. Martin; and sought to cancel, as a cloud on complainant’s title to a tract of land, which he had bought at sheriff’s sale under execution against one Joseph E. Burns, a conveyance executed by said Burns to the defendant, and which was alleged to be without consideration, and to have been executed with the fraudulent intent of hindering and…

Heard before the Hon. W. J. Hilliard. In the matter of the petition of the Alabama Midland Railroad Company, a corporation organized under the general statutes of the State, seeking to condemn a right of way for its road along and across the track of the Mobile & Girard Railroad Company, near and through the city of Troy in Pike county.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 10th October, 1887, by Edward N. Knox, against William B. Armistead and ElliottS. Armistead; and sought to set aside a sale of land under a power in a mortgage, which the complainant and his wife had executed to the defendants as partners doing business under the name of W. B. Armistead & Son, and to redeem.

Tried before the Hon. Jesse M. Carmichael. This action was brought by A. A. Cobb, against Malone & Collins as partners, to recover special damages for an alleged conversion by defendants of a bale of cotton, on which plaintiff claimed a lien under a mortgage for advances, of which lien he alleged that the defendants had notice when they received and sold the bale of cotton; and was commenced on the 6th October, 1887.

Heard before the Hon. John A. Poster. The bill in this case was filed on the 12th November, 1888, by Lehman, Durr & Co. and Aaron Eichards, as creditors of Charles L. Miller, against him and his two brothers, J. B. Miller and P.' B. Miller; and sought to set aside, on the ground of fraud, a conveyance of a stock of goods and other property, executed by said C. L. Miller to his brothers on the 8th November, 1888, and to subject the property to the satisfaction of the…

Heard before the Hon. John A. Poster. The bill in this case was filed on the 19th April, 1889, by the Mobile & Girard Railroad Company, and its lessee, the Central Railroad & Banking Company of Georgia, against the Alabama Midland Railroad Company, a corporation organized under the general statutes of Alabama; and sought to enjoin and restrain the defendant from further obstruction or interference with the right of way and franchises of said Mobile & Girard Railroad Company,…

Heard before tbe Hon. John A. Foster. Tbe bill in this case was filed on tbe 1st December, 1888, by Murrell R. Simmons, as tbe administrator of tbe estate of Mrs. Helen G. Cary, deceased, who was his sister, against Charles Cary and others, children and heirs at law of said decedent, and distributees of her estate; and sought to remove the settlement of the administrator’s accounts into the Chancery Court.

Tried before the Hon. Jesse M. Carmichael. This action was brought by George P. Swift & Son, suing as partners, against B. P. & It. H. Baker, to recover several mules, horses, and other personal property; and was commenced on the 19th December, 1885. The summons, as copied into the transcript, was not signed by the clerk; but indorsed on it was an order of seizure to the sheriff, in regular form, which was dated December 19th, and was signed by the clerk.

Heard before the Hon. S. K. McSpadden. The original bill in this case was filed on the 5th May, 1880, by Jesse M. Weaver, against Thomas N. Brown, his wife and son; and sought to establish and enforce a vendor’s lien on land, for unpaid purchase-money. Garrett Wilder was also made a defendant to the bill, but he died before answer, and the suit was abated as to him.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 5th May, 1886, by Andrew J. Sykes and wife, against Edward O. Betts and wife; and sought to enforce an alleged vendor’s lien on a tract of land, on account of the non-payment of $500, part of the agreed price, under the terms of á written contract between the parties for the division and distribution of the estate of John M. Swoope, deceased, who was the father of Mrs. Sykes and Mrs. Betts.

<p> Motion to set aside Return showing Service of Process. </p> <p>1. Service of process, as shown by sheriff’s return; evidence impeaching. The return of a sheriff, showing service of process, imports verity, and casts on the party assailing it the burden of adducing evidence sufficient to overcome the presumption that the officer did his duty; and on motion to_ set aside the return, the bill of exceptions reciting that “the defendant introduced himself 'as a witness, and his testimony tended to show that the summons and complaint were never served on him,” &c., and that “this was all the evidence in the cause,” these recitals are not sufficient to enable this court to say that the lower court error in refusing to set aside the return.</p>

Heard before the Hon. John A. Foster. The record in this case does not show when the bill was filed, nor does it show the date of any of the proceedings in. the cause, except that the chancellor’s decree is dated January 22d, 1889.

Application by petition in the name of Robert S. Williams, for a writ of mandamus, or other appropriate writ, directed to Hon. Trios.

Tried before the Hon. John P. PIubbard. This action was brought by J. & T. Davidson suing as partners, and revived in the name of T. Davidson as surviving 'partner, against I. Poliak, doing business under the name of Poliak & Co., to recover damages for the alleged conversion of seventeen mules; and was commenced on the 21st November, 1887.

Tried before the Hon. Leroy E. Box. This action was brought by George W. Chambers against John L. Seay, and was commenced on the 24th March, 1880.

<p> Statutory Proceedings for Allotment of Power. </p> <p>1. Petition for allotment of dower; averment of husband’s seizin.-—In a petition for the allotment of dower, an averment that the husband “was seized and possessed” of the lands described is, on demurrer, equivalent to an averment that he was seized in fee (Code, 1886, § 1892; 1876, §2232); but it is the better course to follow the language of the statute.</p> <p>2. Eight of dower, as affected by separate estate.—In estimating the widow’s right of dower, or making an abatement from its value, on account of a separate estate held by her, “exclusive of the rents, income and profits” (Code, 1886, §§ 2354-5; 1876, §§ 2715-16), lands allotted to her as dower in the estate of a former husband must be computed, her interest therein being an estate of freehold, and more than a mere right to the rents, income, and profits.</p> <p>3. Assignment of dower in lands chargeable with trust.-—When it appears that the lands, in which an allotment of dower is sought, are chargeable with a trust in favor of the husband’s children by a former marriage, on account of moneys belonging to their mother’s statutory estate, which were invested or used by him in the purchase of the lands, an assignment by metes and bounds would be unjust (Code, 1886, § 1910; 1876, § 2248), and the court should decline jurisdiction, leaving the parties to their remedies in equitv ; but the mere assertion of such a claim by the heirs, without any evidence to support it, does not require the court to dismiss the petition.</p>

Tried before the Hon. John B. Tally. This action was brought by Frank M. Maroney, against William Manning, and. was commenced on the 17th January, 1877. The action was founded on a bill of exchange for $90, drawn by the defendant on Hill, Fontaine & Co., Memphis, Tennessee, dated October 28d, 1886, and payable to the order of LaFayette Maroney, by whom it was indorsed to plaintiff.

Tried before tbe Hon. John B. Tally. Tbis action was brought by Jobn Swann and Jobn A. Billups, against James L. Gaston, to recover tbe possession of a tract of land, described as tbe soutb-west quarter of tbe north-west quarter of section 17, township 11, range 7 east, containing forty acres; and was commenced on the 13th July, 1885.

<p>Appeal from the Circuit Court of Etowab.</p> <p>Tried before the Hon. John B. Tally.</p> <p>cited Burns v. Campbell, 71 Ala. 288; Varnumv. State, 78 Ala. 28; Mayer & Co. v. Taylor & Co., 69 Ala. 405; Purcell v. Mather, 35 Ala. 572; Grantham v. Hawley, Hob. 132; Loio v. Pew, 108 Mass. 347; Otisv. Sill, 8 Barb. 112; Herm. Ch. Mortgages, § 46; Pennock v. Coe, 23 How. 117; Hussey v. Peebles, 53 Ala. 435; Lomax v. LeGrancl, 60 Ala. 542; Hurst & McWhorter v. Bell, 72 Ala. 337.</p> <p>cited Booker v. Jones, 55 Ala. 271; Abraham v. Carter, 53 Ala. 8; Floyd v. Morrow, 26 Ala. 353; Smith v. Field, 79 Ala. 335; Leslie v. Hinson, 83 Ala. 266; Jones Cb. Mortgages, 174.</p>

Heard before the Hon. H. A. Sharpe. The bill in this case was filed on the 29th December, 1887, by Pinckard, DeBardelaben & Co., suing as partners, against the Berney National Bank, and the Bessemer Land and Improvement Company; and sought to enjoin a sale, under execution in favor of the bank, of certain shares of stock in said company, which had been issued to one W. W. Davin, and to compel the company to enter and record on its books a transfer of said certificate and…

Tried before tbe Hon. John B. Tally. This action was brought by Fannie Fullenwider and others, as heirs at law of Samuel Hudson, deceased, against the Woodstock Iron Company and the Anniston City Land Company, to recover the possession of a tract of land, which belonged to said Samuel Hudson at the time of his death; and was commenced on the 28th June, 1887.

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed by Mrs. Martha Cox, against D. G. Holcomb as the administrator of the estate of Bobert Bridges, deceased, and Mrs. Frances Bridges, who was the widow of said Bobert Bridges and the mother of the complainant ; and sought relief against a defective conveyance of a tract of land, executed by said Bridges and wife to the complainant, on the facts stated in the opinion of the court.

Tried before the Hon. Wi. E. Clarke. This action was brought by John C. Webb, against Prout & Bobertson as partners, and was commenced on the 13th February, 1888. The original complaint contained two counts, the first being for the breach of a special contract, to which a demurrer was sustained because its averments were not sufficiently certain and definite; and the second was the common count for money had and received.

Heard before the Hon. John A. Foster. The bill in this case was filed, on what day the record does not show, by the New England Mortgage & Security Company, a corporation organized under the laws of Connecticut, against Mrs. Yirginia D. Powell and her husband, James W. Powell; and sought the foreclosure of a mortgage on a tract of land, executed by the defendants to the complainant, or a ratification, at the election of the defendants, of an irregular sale under a power in…

Appeals from tbe Chancery Court of Butler. Heard before the Hon. John A Foster. These two cases, involving controversies between J. Monroe Carroll, a legatee and devisee under the last will and testament of John T. Perry, deceased, and J. C. Richardson, his executor, were argued and submitted together in the court below, on demurrers to each bill, and on motion to consolidate the two causes; and they were argued and submitted together in this court.

<p>Appeal from the Circuit Court of Jefferson.</p> <p>Tried before the Hon. Leroy F. Box.</p> <p>This action was brought by Thomas B. Hughes against the appellant corporation, to recover damages for personal injuries sustained by plaintiff from a collision of a street railway car, on which he was a passenger, and a train of cars belonging to the defendant. The collision occurred on the 16th March, 1888, at the intersection of two streets in the city of Birmingham, where the tracks of the two railroads crossed each other; and the action was brought on the 13th April, 1888. The court charged the jury, among other things, as follows; “When a person sues a railroad company for damages for injuries to his person, as in this case, he is required to show that he has been injured, and that the injury was inflicted by the defendant, or the defendant’s employees or servants; and when he does that, the burden of proof is on the defendant to show that itself or its employees were not negligent at the time and place of the occurrence, and therefore, if the plaintiff was injured at all, he was not injured by reason of the defendant’s negligence.” This charge, to which the defendant excepted, is now assigned as error, with several other rulings, which require no notice.</p>

Tried before tbe Hon. John T\ Hubbard. This action was brought by John Glenn, suing as trustee under appointment by the Chancery Court of the city of Richmond, Virginia, against the partners composing the firm of Lehman, Durr & Co.; was commenced on the 19th November, 1886, and sought to compel the payment of the defendants’ unpaid subscription for stock in the National Express Company (or National Express and Transportation Company, its amended name), a corporation…

Tried before the Hon. John P. Hubbard. This action, like the one preceding, was brought by John Glenn, as trustee under appointment of the Chancery Court of Richmond, Virginia, to recover of the defendant fifty per cent, of his subscription for the shares of stock in the Virginia corporation represented by the plaintiff, as assessed and called for by the decree of that court; and was commenced on the 19fch November, 1886.

' Tried before the Hon. John P. Hubbard. This action, like the preceding, was brought by John Glenn, suing as trustee under appointment by the Chancery Court of Bichmond, Yirginia, against the defendant as a subscriber for stock in the National Express and Transportation Company; but it sought to collect the assessment of thirty per-cent, made by the decree of December 14th, 1880, and was commenced on the 1st November, 1884.

Tried before tbe Hon. Hehry C. Speake. Tbis action was brought by Mrs. Ann Davis, a married woman, wbo was a daughter of James Eennell, deceased, against tbe Memphis & Charleston Railroad Company, to recover a strip of land one hundred feet wide, which was the defendant’s road-bed and right of way, and was situated in sections sixteen (16) and twenty-one (21), township five (5), range five (5), west; and was commenced on the 14th October, 1887.

Tried before tbe Hon. Henry C. Speake. This was a contest between Alexander Brothers and E. R. King & Co., attaching creditors of Paul C. Jones, involving their respective rights to the proceeds of sale of the attached property, in the hands of the sheriff.

Tried before the Hon. Leroy F. Bos. This action was brought by Thomas Sharpe, against the National Bank of Birmingham, and was commenced on the 29th October, 1883.

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 22d September, 1887, by Sallie B. Hughes and others, grandchildren of B. J. Hughes, deceased, and residuary legatees under his will, against Anna E. Hughes, the surviving executrix, who was a daughter of the testator, and against several other persons; and sought to compel a final settlement of the accounts and vouchers of the executrix, and more especially to set aside a sale of two city lots in…

<p>Appeal from the Chancery Court of Geneva.</p> <p>Heard before the Hon. John A. Foster.</p> <p>The bill in this case was filed on the 4th March, 1889, by Morrison Brothers & Co., suing as partners, against John T. Coleman; and sought to enjoin and remove obstructions by the defendant in Spring Creek, a tributary of the Choctowhatchie Biver, more than two miles above the complainants’ mill, whereby they were prevented from floating down logs from their lands above, and logs bought from other persons above. After answer filed, the defendant submitted a motion to dissolve the injunction, both on the denials of the answer, and for want of equity in the bill. The chancellor sustained the motion, and dissolved the injunction; and this decretal order is here assigned as error.</p> <p>cited Angelí on Water Courses, §§ 535-37; Leíais v. Coffee County, 77 Ala. 190; Sullivan v. Spottswood, 82 Ala. 163; Gerrish v. Brown, 51 Maine, 256; Thompson v. Androscoggin Co., 54 N. H. 545; Scott v. Wilson, 3 N. H. 321; Rhodes v. Otis, 33 Ala. 578; 1 Green, Iowa, 348; 31 Maine, 9; 28 Maine, 534; 5 Pick 199; 1 Pom. Equity, § 217; 1 High Inj. §§ 794-5, 805, 812, 814; Nininger v. Norwood, 72 Ala. 277; Bryant v. Peters, 3 Ala. 160; 44 Ala. 611; 17 Ala. 667; 56 Ala. 360; 52 Ala. 593; Grady v. Robinson, 28 Ala. 289.</p>

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 11th June, 1888, by the “City of Demopolis,” against John C. Webb and wife, and W. H. Creagh;… Held: on demurrer, that the bill contained equity, so far as it sought relief against the obstruction of the street by the fence,' but not as to the collection of wharfage; and that there was a misjoinder of defendants, inasmuch as Webb alone was charged with the erection and continuance of the fence.

Tried before tbe Hon. John Moore. This action was brought by Mrs. Sarah Massie, against Mrs. Maria Byrd, as the executrix of the last will and testament of her deceased husband, Wm. M. Byrd; and was commenced on the 17th January, 1887. The action was founded on a promissory note for $4,500, which was signed by said Vm.

Heard before tbe Hon. Thos. W. Coleman. The bill in this case was filed on tbe 26th July, 1888, by Mrs. Emily R. Jackson and her three sisters, married women and daughters of Vm. H. Rowell, deceased, against tlreir mother, Mrs. Eliza C. Rowell, their brother, Wm. H. Rowell, Jr., and Joseph Espalla as administrator of said decedent’s estate; and sought principally the removal of the administration, and a settlement and distribution of the estate.

Tried before the Hon. Thos. M. Arrington. Tbis action was brought by tbe surviving partners of the late firm of Gilman,. Son The contract for the sale of the bonds was made in New York, was reduced to writing, and signed by Gilman, Son & Co. as parties of the first part, and by said A. W. Jones as party of the second part.

<p> Bill in Equity for Rescission of Contract, on ground of Fraud. </p> <p>1. Rescission of contract on ground of fraud. — A court of equity will rescind a contract into which the party complaining was induced to enter by the misrepresentation of a material tact by the other party, on which he might properly rely, and by which he was injured; as here, where the complainant, a non-resident, was entitled to a half interest in the estate of his deceased grandmother, which estate was worth between $3,000 and $4,000, and was induced to sell his interest for $300 to a cousin, who was entitled to a part of the other half interest, and who was well acquainted with all the facts relating to the estate; and the contract being rescinded as against the party who procured it, a third person who was interested with him in the purchase, but who had no part in the fraudulent misrepresentations, can take no benefit under it.</p>

Tried before tbe Hon. O. J. Semmes. This action was brought by William G. Hall, a minor suing by Ms next friend, against tbe Louisville & Nashville Railroad Company, to recover damages for personal injuries sustained by plaintiff while in defendant’s employment as brakeman; and was commenced on the 28th Februray, 1888.

Tried before the Hon. Jas. E. Dowdell. This action was brought by H. G. Evans against E. M. Williams, to recover the price agreed to be paid for fifty shares of stock in the Decatur Land and Improvement Company; and was commenced on the 23d January, 1888.

<p>Appeal from the Circuit Court of Etowah.</p> <p>Tried before the Hon. John B. Tally.</p> <p>cited Bell v. Reynolds & Lee, 75 Ala. 511; Martin v. Hill, 42 Ala. 275; Gray v. Waterman, 40 111. 522; Robertson v. Davenport & Patterson, 27 Ala. 574; Tucker v. Woods, 12 John. 190; 11 John. 525; 1 Peters, 465; Baroque v. Russell, 7 Ala. 798; Cuthbert ,v. Newell, 7 Ala. 457; 40 N. T. 422; 9 Wend. 325; 17 C. B. 21.</p> <p>cited Haas v. Hudmon, 83 Ala. 176; Brigham v. Carlisle, 78 Ala. 247; Pollock v. Gantt, 69 Ala. 376; Refining Co. v. Barton, 77 Ala. 156; Culver v. Hill, 68 Ala. 66; Parsons v. Sutton, 66 Ala. 92; 2 Benj. Sales, 1120-22.</p>

Tried before the Hon. Jesse M. Carmichael. This action was brought by JohnM. Beard, against Need-ham G. Johnson, to recover the possession of a tract of land containing 120 acres; and was commenced on the 31st August, 1887.

Heard before the Hon. W. F. Johnston. The bill in this case was filed on the 19th April, 1889, by the Tower Manufacturing Company, and other New York creditors of Y. L. Thompson, against him and his mother, Mrs. C. A. Thompson; and sought to set aside, on the ground of fraud, a conveyance of his entire stock of goods by said Y. L. Thompson to his mother, and the appointment of a receiver to take charge of the goods.

<p>Appeal from the Circuit Court of Henry.</p> <p>Tried before the Hon. Jesse M. Carmichael.</p> <p>The demand for a bill of particulars was a waiver of the misnomer. — Bac. Abr., Misnomer (A?); 1 Saund. PI. & Ev., mar. 47-8; Price v. Harwood, 3 Camp. 108; Bass v. Clive, 4 M. & S. 13; Haley v. State, 63 Ala. 89; Miller v. State, 54 Ala. 155.</p>

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 17th October, 1887, by the executors of the last will and testament of James McDonnell, deceased, against the Mobile Savings Bank, W. J. Hearin as trustee, and Peter Burke and his wife; and sought to set aside on the ground of fraud, actual and constructive, a deed of trust executed by said Burke and wife to Hearin as trustee, to secure a debt of about $14,000 due to said bank.