Volume 88 — Alabama Reports

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

From the Criminal Court of Jefferson. Tried before the Hon. S. E. Greene. The defendant in this case, Scott Parker, was indicted for the murder of Simon Anderson, by shooting him with a gun; was convicted of murder in the second degree, and sentenced to the penitentiary for the term of fifty years. Both the defendant and the deceased were freedmen.

From tbe Criminal Court of Jefferson. Tried before tbe Hon. S. E. Greene. Tbe defendant in tbis case, Gilbert Lowe, was indicted, jointly with several other persons, for tbe murder of John W. Meadows, “by striking bim with a stone, or rock, or by some means unknown to tbe grand jury;” was convicted of murder in tbe first degree, and sentenced to death. Tbe opinion states the material facts, and shows the questions reserved by bill of exceptions.

From the Circuit Court of Elmore. Tried before the Hon. John. B. Tally. The defendant in this case, Yiney Lewis, was indicted for the murder of Lizzie Story, “ by cutting her with a knife;” was tried on issue joined on the plea of not guilty, convicted of murder in tbe second degree, and sentenced to tbe penitentiary for the term of fifteen years.

From tbe Circuit Court of Etowab. Tried before tbe Hon. John B. Tally. Tbe indictment in tbis case charged that tbe defendant, Tom Shell, “unlawfully and with malice aforethought, killed George Sargent, by stabbing him with a knife.” On tbe trial, issue being joined on tbe plea of not guilty, tbe defendant was convicted of manslaughter in tbe first degree, and sentenced to tbe penitentiary for tbe term of ten years.

Peom tbe Circuit Court of Lawrence. Tried before tbe Hon. H. C. Speake. Tbe defendant in tbis case, Major B. Breden, was indicted for tbe murder of Philip Terry, by cutting bim witb a knife; was convicted of murder in tbe second degree, and sentenced to tbe penitentiary for tbe term of twenty years.

<p> Indictment for Assaidt with Intent to Murder. </p> <p>1. Assault with intent to murder. — An assault with intent to murder is not a statutory offense, but a common-law misdemeanor converted by statute into a felony. The specific intent to take life is not an essential element of it. An assault with intent to do grievous harm to the person of another, accompanied with ability to effect it, without legal excuse or sufficient provocation, constitutes the offense.</p> <p>2. Ambiguous charge. — A charge which is susceptible of two constructions, one of which is erroneous, is properly refused.</p> <p>3. Charge as to construction of evidence. — A charge which instructs the jury that, “if any of the evidence [testimony] in the case admits of two or more constructions, one of which is favorable to the defendant, and one unfavorable to him, they must put upon it the construction, if reasonable, that is favorable to him,’-' invades the province of the jury, tends to mislead them, and is properly refused.</p>

From the City Court o£ Montgomery. Tried before tbe Hon. Thos. M. Arrington. Tbe defendant' in tbis ease, George Holmes, a freedman, was indicted for tbe murder of Tbomas Bobinson,.by shooting bim witb a pistol; was convicted of murder in tbe first degree, and sentenced to tbe penitentiary for life. Tbe billing occurred on Christmas morning, 1888, in tbe city of Montgomery, in tbe street in front of tbe bar-room of tbe deceased.

From: the Circuit Court of Dale. Tried before the Hon. Jesse M. Carmichael. The defendant in this case, Henry Duncan, was indicted for the murder of his wife, “by giving her morphine,” or, as alleged in the second count, “ a poison the precise kind of which is unknown to the grand jury;” was convicted of murder in the first degree, and sentenced to death.

<p>From the Circuit Court of Dale.</p> <p>Tried before the Hon. Jesse M. Carmichael.</p>

<p>Prom the Criminal Court of Jefferson.</p> <p>Tried before the Hon. S. E. Greene.</p> <p>cited Crocker v. State, 47 Ala. 53; Grant v. State, 55 Ala. 201; Levy v. State, 79 Ala. 259.</p>

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

From: the Criminal Court of Jefferson. Tried before tbe Hon. S. E. Greene. Tbe defendant in this case, Henry Smith, was indicted, jointly with Joe Gill, for the murder of J. D. Connelly, by shooting him with a pistol; and being tried separately, was convicted of murder in the first degree, and sentenced to death. No objection was raised in the court below either to the indictment or to the jury, and there was no motion in arrest of judgment.

<p> Indictment for Bobbery. </p> <p>1. Declarations of person assaulted and robbed, made to third persons. The woman who was assaulted and robbed, and who was not produced as a witness on the trial, was a foreigner, and could scarcely speak intelligibly in English ; she was seen to go into the woods in company with the defendant, also a woman, and to come out alone within an hour, bruised, wounded and bleeding, gesticulating and trying to^alk, and with her clothes badly torn. The witness who saw her would not then let her come near him, but went off and reported the facts to several other persons, and returned with them “ a short time after-wards,” when she told them, in reply to questions, that the defendant had assaulted and robbed her; and she made similar statements to another witness, about two hours afterwards. Held, that these statements were not admissible as evidence, being mere hearsay, and not coming within the principle of res gestee.</p> <p>2. Contradictory siatem.en.is by defendant; to what witness may testify. A witness, having testified to declarations made to him by the defendant, as to how she acquired the articles found in her possession, which belonged to the person alleged to have been robbed, can not further testify as to other statements made to him by her, which he can not remember, “except that they were different trom each other, and from the first statement;” this being rather the statement of an opinion than of a fact.</p>

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

From tbe Circuit Court of Madison. Tried before tbe Hon. H. C. Speake. Tbe defendant in tbis case, Jim Butledge, was indicted for tbe murder of Dave Donegan, by shooting bim with a pistol; was convicted of murder in tbe first degree, and sentenced to tbe penitentiary for tbe term of forty-tbree years.

From the Circuit Court of Morgan. Tried before the Hon. John Moore. The defendant in this case, Robert J. Rains, was indicted for the murder of his brother, Bone Rains, by cutting him with a knife; was convicted of murder in the first degree, and sentenced to be hanged. Before going to trial, the defendant submitted an application for a change of venue, on the ground that he could not get a fair and impartial trial in the county.

From the City Court of Montgomery. Tried before the Hon. Thos. M. Arrington. The defendant in this case, John Engelhardt, was indicted for an assault on W. F. Vandiver, with the intent to murder him; was convicted of an assault and battery, and fined $300. The assault was committed about dark on the evening of September 11th, 1888, on the sidewalk in front of the defendant’s store in the city of Montgomery, where Vandiver was standing with J. Faunce.

<p>From the Circuit Court of Tuskaloosa.</p> <p>Tried before the Hon. Sam. H. Sprott.</p>

From the Criminal Conrt of Jefferson. Tried before the Hon. S. E. Greene. The indictment in this case charged that the defendant, Will Cooper, “with intent to steal, broke into and entered the dwelling-honse of F. S. Ferguson.” On the first trial, the defendant'was convicted; but the judgment was reversed by this court, and the cause remanded. — Cooper v. State, 86 Ala. 610.

From the City Court of Mobile. Tried before the Hon. O. J. Semmes. The defendant in this case, Charles Barnard, was indicted jointly with Balligan J ones and Tobe Chrystol, for an assault on Alex. Stein, with intent to rob; was tried separately, issue being joined on the plea of not guilty, was convicted, and sentenced to the penitentiary for the term of seven years.

From the Circuit Court of Lee. Tried before the Hon. Jesse M. Carmichael.

From the County Court of Shelby. Tried before the Hon. H. L. Oliver, as special judge. .

From the City Court of Mobile. Tried before the Hon. O. J. Semmes. The testimony of Chandler, to which objection was made, related to particular acts or conduct, and was improperly admitted. — Wharton’s Or. Ev., § 61, and cases cited; 3 Amer. & Eng. Encyc. Law, 115; Reddick v. State, Florida, 5 So. Bep. 705; Ingram v. State, 67 Ala. 72; DeArman v. State, 71 Ala. 361; Tease v. Huntington, 23 How. TJ. S. 2.

From the Circuit Court of Bussell. Tried before the Hon. Jesse M. Carmichael. The defendant in this case, Dr. S. W. Brooks, having procured a diploma from a regular medical college in Georgia, came into Bussell county, Alabama, in April, 1889, and there began to practice medicine, having had his diploma recorded in the office of the judge of probate.

Application by petition in tbe names of Edward. Joice and William Smith, for the writ of habeas corpus, to procure their discharge from the custody of the sheriff of Madison county, under the judgment of a justice of the peace, or several judgments, alleged to be void for want of jurisdiction. The petition was addressed to Hon. Thos.

<p>From the Circuit Court of Covington.</p> <p>Tried before the Hon. John P. Hubbard.</p> <p>cited Page v. State, 84 Ala. 446; Walton v. State, 62 Ala. 197.</p>

From: the Circuit Court of Blount. Tried before the Hon. John B. Tally.

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

From the Circuit Court of Cherokee. Tried before the Hon. John B. Tally.

Prom the Circuit Court of Covington. Tried before the Hon. John P. Hubbabd.

Eeom tbe City Court of Anniston. Tried before the Hon. W. E. Johnston. Held: in pursuance of its provisions, during the year 1887, the prohibition provided for by the 5th and 6th sections shall not take effect till after 30th April, 1887; and the probate judge of said county shall not issue to any person or persons a liquor license from the 1st day of January, 1887, for a longer period than the 30th day of…

From: the City Court of Montgomery. Tried before the Hon. Thos. M. Arrington. The defendant in this case was indicted for carrying a pistol concealed about his person. On the trial, the State introduced one Wescott as a witness, the substance of whose testimony is stated in the opinion of the court; and the defendant declined to introduce any evidence at all.

Prom the Criminal Court of Pike. Tried before tbe Hon. Wi. H. Parks. The defendant in this case, a school teacher, was indicted for an assault and battery on Lee Crowder, who was one of his scholars; and the case being submitted to the court without a jury, he was convicted, and fined $25. The material facts are stated in the opinion of the court. cited Skinner v. State, 87 Ala. 105; State v. Pendergrass, 2 Dev. & Bat. 365, or 31 Amer.

From the Circuit Court of Limestone. Tried before the Hon. John Moore.

<p> Indictment for Burglary. </p> <p>1. Competency of witness, as affected by mental capacity. — A boy who, on examination by the court, testifies: “I am going on fourteen years old; do not know who made me; do not know what will be done with me if I lie and steal; know it is wrong to lie and steal, but do not know what will be done with me if I steal; did not know they would send me to jail if I swore a lie; do not know what will become of me when I die, if I swear to a lie; know it is wrong to tell a lie, but did not know I would be punished for it,” — is not competent to testify as a witness, for want of the requisite mental capacity.</p>

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

Prom the Circuit Court of Butler. Tried before the Hon. John P. Hubbard. The defendant in this case, Paul Riley, was indicted for burglary in breaking and entering the dwelling-house of Hugh Black, with the intent to commit a felony; was convicted, and sentenced to the penitentiary for the term of five years.

Erom the Circuit Court of Geneva. Tried before the Hon. Jesse M. Carmichael.

<p>Erom the County Court o£ Shelby.</p> <p>Tried before the Hon. R. W. Cobb.</p> <p>The indictment in this case charged that the defendant carried a pistol concealed about his person. On the trial, the State introduced one Yincent as a witness, who testified that one day, within twelve months before the finding of the indictment, while riding in the road on his wagon with a load of wood, he met the defendant at Abbott’s shop in said county, shook hands with him, and talked for a few minutes; that he was then going to the Shelby Iron Works, about one mile distant, and defendant said he would remain at the shop until his return; “that he saw, while talking to the defendant, something in the breast pocket of his coat, which he took to be a pistol, though he could not swear it was.” The defendant then asked the court to “require the solicitor to elect the time and place for which he would proceed,” and he excepted to the overruling of his motion. The witness then testified, that on his return, about an hour afterwards, “defendant got into the wagon with him, and he drove off towards home; that defendant, when they were about a quarter of a mile from the shop, exhibited to him a pistol in his hand, which was the first time witness had seen it to know that it was a pistol; that defendant, while riding in the wagon, sat facing him part of the time, and at other times with his left side towards witness; and that he did not see any pistol during that time. The defendant objected to the introduction of this evidence, on the ground that it was at a different time and place from that first stated by the witness.” The court overruled the objection, and the defendant excepted. The defendant asked the court to charge the jury, “that if they believed from the evidence that defendant had a pistol at the time Yincent saw him at the shop, while on his way to Shelby Iron Works with a load of wood, and that it was not concealed from ordinary observation, they must find him not guilty.” The court refused this charge, and instructed the jury, “of its own motion, that if they believed from all the evidence that, at any time on that day, and on that occasion, the defendant carried about his person a pistol concealed from ordinary observation, then he would be guilty as charged.” The defendant excepted to the charge given, and to the refusal of the charge asked.</p> <p>cited Smith v. State, 79 Ala. 257; Owens v. State, 74 Ala. 401.</p>

From tbe Circuit Court of Butler. Tried before the Hon. John P. Hubbard. Tbe defendant in this case, Shepherd Biley, was indicted for burglary in breaking and entering tbe dwelling-house of Hugh Blade, with the intent to commit a felony; was convicted, and sentenced to tbe penitentiary for the term of five years.

From the City Court of Mobile. Tried before the Hon. O. J. Semmes. The indictment in this case charged, in a single count, that the defendant “set up, or was concerned in setting up or carrying on a lottery, against the peace,” &c. On all the' evidence adduced, which it is unnecessary to state, the defendant requested the court to instruct the jury that, if they believed the evidence, they must find him not guilty; which charge the court refused, and the defendant excepted.

Prom the Circuit Court of Bibb. Tried before the Hon. James B. Dowdell. This was a prosecution for a failure to work on the public roads, without legal excuse, after having been duly notified; was commenced in the County Court, and removed by appeal into the Circuit Court. • On the evidence adduced, which was without conflict, the court charged the jury that, if they believed the evidence, they must find the defendant guilty; to which charge he duly excepted.

From tbe Circuit Court of Fayette. Tried before tbe Hon. Bam. H. Sprott. Tbe defendant in this case, James B. Barnes, was indicted for a rape on Mrs. Adeline Ballard, wbo was bis wife’s sister; was convicted, and sentenced to tbe penitentiary for life.

Erom the City Court of Decatur. Tried before the Hon. W. H. Simpson. The indictment in this case charged, in a single count, that John Dotson, who was a freedman, “with intent to injure or defraud, did falsely make, alter, forge, counterfeit, alter [utter ?] and publish as true, an instrument in writing in words and figures as follows,” setting it out. The writing, as here copied, was dated Jan. 16th, ’89, signed T. N. Terley, addressed to Mr. 8.

Erom tbe County Court of Barbour. Tried before tbe Hon. A. M. Alston.

From the Circuit Court of Pike. Tried before the Hon. John P. Hubbard. The indictment in this case charged, in a single count, “that John Blue, a negro man, and Martha Ann Linton, a white woman, did intermarry, or live in adultery or fornication with each other, against the peace,” &c. A severance was granted,- and each defendant was tried separately.

<p> Indictment for Carrying Concealed Weapons. </p> <p>1. Peremptory challenge of juror; when allowed. — It is discretionary with the trial court to allow the peremptory challenge of ajuror by the State, in a prosecution for a misdemeanor, after the solicitor has announced himself “satisfied with the jury of twelve men then sitting in the jury-box,” and before the defendant has expressed his election.</p> <p>2. Ñew trial; refusal not revisable. — Under the uniform decisions of this court, the refusal of a new trial is matter of discretion, and is not revisable on error or appeal.</p>

From the Criminal Court of Jefferson. Tried before the Hon. S. E. Greene. The indictment in this case charged, in a single count, that the defendant, Perry Morgan, “ unlawfully and with matice aforethought assaulted Bill Howard with a pistol, with the intent to kill him.” The jury returned a verdict of “ guilty as charged in the indictment,” and the court thereupon sentenced him to the penitentiary for the «term of two years.

From tbe Circuit Court of Cherokee. Tried before tbe Hon. John B. Tally. Tbe indictment in this case was found on the 1st October, 1886, and charged that tbe defendant, Cap.

From the Criminal Court of Pike. Tried before the Hon. ¥i, H. Parks.

<p>From_ the Circuit Court of Crenshaw.</p> <p>Tried before the Hon. John. P. Hubbard.</p> <p>Indictment under section 4078 of the Code, 1886.</p>

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

From the Circuit Court of Geneva. Tried before tbe Hon. C. H. Laney, as special judge.

From the Circuit Court of Marshall. Tried before the Hon. John B. Tally. The indictment in this case charged that “Babe Wells (whose true Christian name is to the grand jury unknown, otherwise than as stated) carried a pistol concealed about his person.” There was no demurrer to the indictment, and no plea in abatement, and issue was joined on the plea of not guilty.

Heard before tbe Hon. Thos. M. Arrington. Tbe bill in tbis case was filed on tbe 8tb November, 1887, by Claude S. Tbornton and others, as beirs at law and distributees of tbe estate of Charles J. Watson, deceased, against Otto Stoelker, individually, and as executor of tbe last will and testament of said Watson; and sought an account and distribution of certain moneys, which tbe defendant bad received from tbe Knights of Pythias, and tbe Ancient Order of United Workmen, on…

Tried before tbe Hon. ¥i. E. Clarke. Tbe appellant in this case, Tbos. J. Archer, recovered a judgment in the Circuit Court of Mobile, on the 26th May, 1885, against Baker, Lawler & Co., a partnership of which J. W. Whiting was a member; and on the 17th July, 1885, he sued out a garnishment on it against the People’s Savings Bank of Mobile, of which said Whiting was president, seeking to subject a supposed indebtedness of the bank to him.

Jesse M. Carmichael. This action was brought by Thos. J. Miles against the appellant corporation, to recover damages for personal injuries sustained by plaintiff on stepping from the platform of the defendant’s cars, on which he was a passenger, being thrown to the ground, and having his arm broken. The accident occurred at Inverness in said county, on the 8th September, 1888; and the action was commenced on the 14th January, 1889.

Tried before tbe Hon. John. P. Hubbard. This action was brought by J. I). Philyaw, against the appellant corporation, to recover the possession of a tract of land containing forty acres, which was described as the northwest quarter of the south-west quarter of section thirty-five (35), township one (1), range eight (8); and was commenced on the 4th March, 1887. The cause was tried on issue joined on the pleas of not guilty, and the statute of limitations of ten years.

Tried before the Hon. Jas. B. Dowdell. This action was brought by the Hanover National Bank of New York, “a corporation duly chartered and incorporated under and by authority of the laws of the State of New York,” against J. C. Johnson & Co., a partnership composed of J. O. Johnson and B. L. Smith, and against the partners individually; and was founded on two promissory notes signed in the partnership name, each for $372, with interest, dated January 10th, 1885, and payable,…

Heard before the Hon. Jno. A. Foster. The bill in this case was filed on the 10th June, 1889, by the “New England Mortgage Security Company, a corporation duly organized under the laws of Connecticut, with its principal place of business in the city of Boston, Massachusetts, and having a duly constituted agent, with a known place of business, in the city of Birmingham, Alabama, as required by the 4th section of the 14th article of the constitution of said State,” against…

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 10th July, 1889, by the “American Freehold Land Mortgage Company of London,” a foreign corporation, against John R. Mullens and his wife; and sought to foreclose a mortgage on a tract of land.

<p>Appeal from the Chancery Court of Tallapoosa.</p> <p>Heard before the Hon. S. K. McSpadden.</p> <p>cited Houston v. Williamson, 81 Ala. 482; Sawyer v. Baker, 66 Ala. 292; Chapman v. Hamilton, 19 Ala. 121; W. U. Tel. Co. v. Amer. Tel. Co., 67 Ala. 26; Dudley v. Collier & Pinclcard, 87 Ala. 431.</p> <p>Alvis v. Sherwood, 83 Ala. 115; Story’s Eq. PL,. §452; 2 Jones on Mortgages, § 1420; 3 Brick. Digest, 389.</p>

Tried before the Hon. Joña. Haealson. This action was brought by Isaac Bloch, “doing business under the firm name of I. Bloch & Co.,” against J. L. Levy.

Tried before the Hon. Jona. Haralson. This action was brought by Isaac Bloch, “doing business under the name of I. Bloch & Co.,” against J. L. Levy, and seems to have been commenced in a justice’s court.

Tried before the Hon. Jas. B. Dowdell. This action was brought by F. M. Flack and P. M. Wales, partners doing business under the firm name of Flack & Wales, against Joseph E. Andrews; and was commenced on the 8th February, 1888. The complaint contained three counts, each declaring on a judgment which the plaintiffs had recovered against the defendant, on the 16th November, 1885, in the Supreme Court of New York for Bensselaer county.

Heard before the Hon. S. K. McSpadden. The original bill in this case was filed on the 17th February, 1877, by Thomas U. Conner and his wife, who was a daughter of William H. Moore, jointly with the other children of said Moore, against Elon G. Smith, B. H. Herstein, M. Bernstein, and others; and sought to redeem certain property, particularly a block of stores in Huntsville, which had been conveyed by said Moore to his children, by deed dated September 11th, 1866, in…

Tried before the Hon. ¥i. E. Clarke. The appellants in this case, suing as partners, recovered a judgment for $113.44:, besides costs, in the Circuit Court of Mobile, on the 11th May, 1886, against Edward E. Buck-land; and on the 8th March, 1889, sued out a garnishment on it against the Mobile & Ohio' Railroad Company, as the debtor of said Buckland.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 29th December, 1886, by Wiley B. Franklin, against the Pollard Mill Company, and the several persons alleged to be members of said company or partnership; and sought to restrain by injunction a diversion of the waters of a running stream, alleged to flow through the complainant’s lands.

Tried before the Hon. Jona. Haralson. This action was brought by the “ Montgomery Iron Works,” against Maas & Schwarz as partners, and was commenced in June, 1888.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 18th September, 1886, by C. W. Nelms, against W. P. Kennon; and sought to redeem a tract of land, which had been sold on the 3d May, 1886, under a decree in chancery foreclosing a mortgage executed by said complainant, and was bought at the sale by the defendant, who was the mortgagee.

<p>Appeal from the Circuit Court of Macon.</p> <p>Tried before the Hon. Jas. E. Dowdell.</p> <p>This action was brought by Mrs. Mary H. Williams, against.E. P. Stillwell, to recover damages for personal injuries sustained by plaintiff from a defective public bridge in the county; and was commenced on the 14th February, 1889. The injury occurred on .the 19th July, 1888, while the plaintiff was crossing the bridge in a buggy, and the horse, becoming frightened, or restive, backed the buggy over the side of the bridge, which was not protected by a sufficient railing; whereby plaintiff was thrown from the buggy, and into the stream, dislocating her hip, and sustaining other injuries. . The complaint alleged that, on the 6th February, 1888, the defendant entered into a contract with the county, by which he agreed and bound himself, in consideration of the sum of $1,400 per annum,, payable quarterly, “to keep in repair uhe public bridges of the county, so that they would continue safe for the passage of travellers and other persons, for the term of three years from the 14th February, 1888;” that he failed to keep in repair “a certain public bridge over Caleebe creek in said county, on the public road leading from Tuskegee to Montgomery, in this: that he failed to have good, sound and suitable railing, or banisters, securely fastened on the sides of said bridge, so as to prevent vehicles, driven across by travellers and others, from falling from said bridge; that said bridge was wholly unsafe and insufficient; that the banisters, or railings on the sides of the same, were insecurely fastened to the uprights supporting the bridge, and afforded no resistance to plaintiff’s buggy when backed against them by the horse;” whereby she was thrown from the buggy and the bridge, and was injured, &g. An amended complaint alleged, “that said bridge was erected by contract with the County Commissioners of said county, and that defendant, on the acceptance of his said contract with the county, entered upon the performance of his duties under it, and is now in the performance of his said contract.”</p> <p>■ The court sustained a demurrer to the complaint, original and amended, and its judgment is here assigned as error,</p> <p>cited Addison on Torts, vol. 1, §§ 1, 16, 17; Kelly v. McCaw, 29 Ala. 231; Hussey v. Peebles, 53 Ala. 432; Life Insurance Co. v. Randall, 74 Ala. 170; Barbour County v. Brunson, 36 Ala. 362; Barbour County v. Horn, 48 Ala. 566; Covington County v. Kinney, 45 Ala. 176.</p> <p>cited Lee County v. Yarbrough, 85 Ala. 590; 79 Ala. 304; 80 Ala. 204.</p>

Tried before the Hon. Wm. E. Clarke. This. action was brought by Livingston Mims, against Prank M. Carmelich; was commenced on the 7th November, 1886; and was founded on the defendant’s promissory note for $499, which, as described in the complaint, was dated June 18th, 1886, payable to his own order, at the First National Bank of Mobile, on the 1st October after date, and indorsed by him, before maturity, to the plaintiff.

Heard before the Hon. H. A. Sharpe. The bill in this case was filed on the 8th October, 1887, by Mrs. M. L. Young, a married woman, against G-eorge W. Allen; and sought the specific performance of a contract between them, for the purchase of a house and lot in Birmingham by the complainant. Thos.

Tried before the Hon. Vk. E. Clarke. This action was brought by Adrian Nicholas and others, children and heirs at law of E. A. Nicholas, deceased, to recover the possession of a small tract of land, particularly described in the complaint, with damages, or mesne profits; and was commenced on the 13th October, 1887.

Tried before the Hon. Jesse M. Carmichael. This action was brought by James E. Foy, against T. J. Maddox, to recover a mule, with damages for its detention; and was commenced on the 5th January, 1888. The defendant disclaimed title in himself, and suggested that Mrs. Willie P. Cochran, without collusion with him, claimed the mule; and thereupon she appeared, and defended the action. Code, § 2611.

<p>Appeal from the Circuit Court of Geneva.</p> <p>Tried before the Hon. Jesse M. Carmichael.</p> <p>cited Wilson v. Brown, 58 Ala. 62.</p>

Tried before the Hon. J. W. Foster, as special judge. This action was brought by H. Z. Parker as surviving partner of H. Z. Parker & Son, against L. M. Edwards; was founded on an account for goods sold and delivered by said firm to the defendant, amounting to- $182.45, and was commenced on the 24th May, 1887. The case was before this court on appeal at a former term, as shown by the report in 85 Ala. 246.

Heard before the Hon. H. A. Sharpe. The bill in this ease was filed on the 9th July, 1887, by John D. Parker, against Martin Parker and his wife, Mrs. Elizabeth Parker; and sought the reformation of a conveyance of a tract of land, executed by the defendants to the complainant, on the ground that the land intended to be conveyed was not correctly described in the deed.

Heard before the Hon. H. A. Sharpe. The bill in this case was filed on the 9th July, 1887, by James E. Parker and wife, against Martin Parker and wife; and sought the reformation of a conveyance of a tract of land, executed to the complainants by the defendants, on the ground that the land intended to be conveyed was not correctly described in the deed.

Tried before the-Hon. Leroy F. Bos. This action was brought by tbe appellants, suing as partners, against W. A. Davis and his wife, and was commenced on the 6th July, 1888. The complaint contained a common count, claiming $560 for work and labor done by plaintiffs in building a house for defendant, on a lot particularly described; and also sought to- enforce a statutory lien on the house and lot, for the work done and materials furnished, claiming $560 as the balance due.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 9th June, 1884, by the Georgia Pacific Bail way Company, a domestic corporation, against George S. Gaines; and sought to enforce the specific performance of a written agi'eement, by which the defendant bound himself to convey to A. H. Colquit, E. C. Gordon and W. S. Gordon, “their associates and successors,” all the coal and iron on and in a certain tract of land, particularly described, containing…

Heard, before the Hon. S. K. McSpadden. The bill in this case was filed on the 25th May, 1888, by Bangs, Bard & Co., a partnership, as creditors of Geo. W. Edwards, against the said Edwards and his wife, Mrs. Sallie E. Edwards; and sought to set aside, on the ground of fraud, a conveyance of a tract of land to Mrs. Edwards, and to subject the property to the payment of the complainants’ debt.

Aapeal from the Circuit Court of Tuskaloosa. Tried before the Hon. Sam. H.. Sprott. This action was brought by Columbus E. Rice, against Ely Davis, and was commenced by attachment sued out on the 18th October, 1886.

Tried before the Hon. Leroy F. Box. This action was brought by Thomas J. Goodwin and others, against Thomas Strong, to recover the possession of a tract of land described as the “N. E. quarter of section 18, township 17, range 10;” and was commenced on the 21st July, 1887.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 1st April, 1889, by William Ratchford, against J. D. Liles, L. W. Liles, and the personal representative and heirs at law of Herod' Liles, deceased; and sought to enforce a vendor’s lien on land, for the purchase-money alleged to be due and unpaid.

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 28th February, 1889, by R. Gr. Pegram, as executor of the last will and testament of John D. Ragland, deceased, against Thomas S. Riley and Turner Whitfield; and sought to coerce out of property in the possession of the defendants, which had belonged to the estate of Thomas J. Riley, deceased, payment of the balance due to the complainant on a decree which he had obtained against one Fred.

Heard before the Hon. John A. Foster. The bill in this case was filed, on what day the transcript does not show, by Robert Hollinger and Alex. Hollinger, against John M. Nored, aad afterwards revived against George W. Pryor as his administrator; and sought the cancellation of a mortgage, and a redemption and account under it. The mortgage was signed by said Robert and Alex.

Heard before the Hon. Thomas Cobbs. (1.) The bill seeks to enforce a resulting trust, and to follow the proceeds of the sale of the land, to which the trust attached, in the hands of the bank with which it is deposited. The equity can not be doubted. — 1 Story’s Equity, §§ 422-3; 2 Story’s Equity, §§ 1210, 1257; 1 Pomeroy’s Equity, §§ 155, 1049; 2 Perry on Trusts, 814, 835; 10 Amer. & Eng. Ency.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 9th July, 1889, by Mrs. Mary E. Smith and others, children of Mrs. Cynthia (or Syntha) Ricks, deceased, against Joseph Greer; and sought the recovery of a tract of land, which the defendant had bought from Mrs. Ricks, a sale of it for partition among the complainants, and an account of the rents and profits after the death of Mrs. Ricks.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 26th September, 1887, by E. D. Allen, against A. A. Lammons and his wife, Mrs. S. J. Lammons; and sought to foreclose a mortgage on a lot in the town of Oxanna, with the buildings thereon erected, which the defendants had executed to the complainant.

<p>Contested Petition for Election under Local Prohibitory Law. <"</p> <p>1. Local opt:on law; re-eleclion after the lapse of twelve months; are'a covered by petitions. — Under the provisions of the act approved March 19th, 1875, authorizing local elections in Jackson and other counties, to determine the question whether the sale of intoxicating liquors shall be prohibited within the area or limits specified in the application ol' the petitioning citizen or citizens ,'Sess. Acts 1874-5, pp. 276-791, a second election may be had, on petition of any citizen or citizens, after the expiration of twelve months from the first; but such second election must embrace the entire area covered by the first, and an order for an election in a part of that area only is absolute^ void.</p> <p>2. Same; who may contest order for second election. — If a second election is improperly ordered and held, uniter a petition confining it to a portion only of the territory covered by the former election, any citizen residing in that territory may intervene by petition, and ask to have the second order and election revoked, annulled, and declared void.</p>

Tried before the Hon. John B. Tally. This action was brought by “C. Aultman & Co., a foreign corporation,” against J. E. & W. Allred and John Gamble; and was commenced in a justice’s court, on the 3d July, 1888. The action was founded on the defendants’ promissory note for $90, which was dated February 14th, 1884, and •payable' on the 1st November, 1884, to David M. Pruitt or order; which had been assigned by said'Pruitt to one Elias Kelton, and by Kelton to the plaintiff.

Tried before the Hon. ¥i. E. Clarke. This action was brought by Louisa Gelbke, an infant, suing by next friend, against Mrs. Maria Gelbke, tó recover the possession of a house and lot in Mobile; and was commenced on the 6th May, 1889.

Tried before the Horn Jesse M. Carmichael. This action was brought by B. P. Baker, against Kennon Brothers and others, and was founded on an attachment bond, which the defendants had executed on the suing out of an attachment by Kennon Brothers against said Baker.

Heard before the Hon. H. A. Sharpe. The bill in this case was filed on the 15th November, 1886, by Mrs. Nancy Hamaker, against her husband, William Hamaker, and Mrs. Martha Reagan, who was his daughter by a former wife; and sought to establish a resulting trust in a tract of land, which John H. Eubanks had conveyed by deed to said William Hamaker for life, with remainder to his said daughter.

Tried before the Hon. H. A. Sharpe. This action was brought by “W. J. Morgan & Co., a body corporate under the laws of Ohio,” against the Elyton Land Company, and the several partners composing the firm called the Birmingham Iron Bridge & Forge Company; and was commenced on the 25th October, 1887.

Tried before the Hon. Jas. E. Dowdell. This action was brought by Julian P. Knabe, against Calvin J. Burden, to recover the possession of a tract of land, which was described in the complaint as “Fraction C, in section 17, township 22, range 13, in said county;” and was commenced on the 14th April, 1887.

Tried before the Hon. Jas. R. Dowdell. This action was brought by the appellant, an Ohio corporation, against James L. Harwell and W. A. Herren; and was commenced in a justice’s court, on the 16th March, 1887.

Tried before the Hon. H. A. Sharpe. This action was brought by the appellants, suing as partners, against the Louisville & Nashville Railroad Company, to recover $150 damages for the loss, or failure to deliver, a car-load of lime, which had been delivered to the defendant at Blount Springs, for transportation to Birmingham, consigned to the plaintiffs. The complaint contained three counts.

Heard before the Hon. Emmet E. Crook. The petitioner and appellant in this case, John Ramagnano, filed his petition in the office of the probate judge of said county, on the 8th January, 1890, for a license to retail spirituous liquors in Jacksonville; and it was admitted that he had complied with all the requirements of the general statute regulating the granting of such' licenses.

Tried before tbe JEon. Jesse M. Carmichael. Tbis action was brought by B. D. Lazarus, against tbe appellant corporation, to recover damages for billing a cow; and was commenced in tbe court of a justice of tbe peace, on the 20th March, 1886.

Tried before the Hon. Jesse M. Carmichael. This action was brought in the name of the State of Alabama, “for the use of township seven (7), range eight (8), west of the Tallahassee meridian,” against Ned Gaston, to recover the possession of a tract of land containing 80 acres, which was described as “the east half of the south-east quarter of section sixteen, township seven (7), range (8)¿> west of the Tallahassee meridian;” and was'commenced on the 15th August, 1888.

Heard before the Hon. Thos. Cobbs. The bill in this case was filed on the 25th February, 1887, by Mrs. Mary A. Lyons and three others, as heirs at law and next of kin of Mrs. Mary P. Bice, deceased, against Archibald Campbell and others; and sought to set aside the probate of Mrs. Bice’s will, on the ground that it was procured by fraud and undue influence on the part of said Campbell, who was the residuary legatee, and was also appointed as executor, and relieved from…

Tried before the Hon. H. A. Sharpe. This action was brought by Paul S. Carrington, as administrator of the estate of his deceased son, Paul F. Carrington, to recover damages for the alleged negligence of the defendant’s agents and servants, which caused his death. The deceased was killed on the 10th February, 1887, by being run over by an engine and train of cars belonging to the defendant corporation; and the action was commenced on the 15th March, 1887.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 8th December, 1886, by Lehman, Durr & Co., and Goetter, Weil & Co., two partnerships doing business in the city of Montgomery, as creditors of Long & Greenhut, a mercantile partnership lately doing business in Greenville, against the said Long & Green-hut, individually and as partners, and F. Greenhut, who was a brother of one of the partners; and sought to set aside, on the ground of fraud, two…

Heard before tbe Hon. H. A. Sharpe. Tbe bill in tbis case was filed on tbe 16tb February, 1888, by George A. Alexander and others, children and heirs at law of Zeno Alexander, deceased, against Mrs. Fannie M. Hill and her husband, B. M. Hill; and sought to redeem two tracts of land, wbicb complainants’ ancestor bad mortgaged to Mrs. Hill, and wbicb she bad sold under a power contained in tbe mortgage, becoming herself tbe purchaser.

Tried before the Hon. John B. Tally. This action was brought by W. M. Sublett, against James W. Hodges and J. S. Bain, and was commenced on the 26th September, 1884. The original complaint contained only the common counts, claiming of defendants the sum of $198, alleged to be due by account from defendants to plaintiff in September, 1883, and a like sum for goods sold and delived, and also for work and labor done.

<p>Appeal from the Circuit Court o£ Butler.</p> <p>Tried before the Hon. John P. Hubbard.</p>

<p> Action on Official Bond of County Treasurer. </p> <p>1. Preferred county claims; money set apart for payment of; liability to other claims. — It is made the duty of the county treasurer to set apart, from the moneys of the county in his hands, a sum sufficient to pay the preferred claims, which constitute the necessary current expenses of the county (Code, § 908); the moneys so set apart by him can not be subjected to the payment of other claims, nor even of similar claims already incurred and accrued; and if he sets apart a greater sum than is necessary for the prescribed purpose, the holder of another claim can only have judgment for the surplus, or excess.</p>

Tried before the Hon. Thos. M. Arrington. This action was brought by W. W. Wadsworth, against Mrs. M. L. Hodge, to enforce a statutory lien on a house and lot in the city of Montgomery, for materials furnished by plaintiff, under contract with defendant’s husband acting as her agent, and which were used in the construction of the house. The materials were furnished in March and April, 1888, amounting to $213.30, and the action was commenced on the 7th July, 1888.

Tried before tbe Hon. Jas. B. Head. Tbis action was brought by William Cutcliff, against Mrs. Catherine McAnally, a married woman, to enforce a statutory lien on a lot belonging to tbe defendant, for a balance of about $200 alleged to be due to plaintiff under a contract for building a bouse on tbe lot; and was commenced on tbe 14th April, 1888.

Tried before the Hon. H. A. Sharpe. This action was brought by the appellants, suing as partners, against Mrs. Catherine McAnally, a married woman, to enforce a statutory lien on a house and lot belonging to the defendant, for materials furnished by plaintiff to one W. N. Stage, who was also joined as a defendant, to be used by him in the erection of a house on a lot belonging to Mrs. McAnally, and which were so used.

Heard before the Hon. Thos. M. Arrington. The bill in this case was filed on the 26th August, 1889, by Moses Brothers, suing as partners, against Berry Johnson; and prayed an injunction, to restrain the defendant from cutting timber on a tract of land which the complainants had sold to him, except for repairs, fences, and other necessary purposes.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 12th March, 1888, by J. F. Davis & Son, suing as a partnership, against T. A. Davis and his wife, S. N. Milligan, and M. G. Milligan; and prayed the foreclosure of a mortgage, or a deed of trust in the nature of a mortgage, which T. A. Davis and his wife had executed to the complainant.

Tried before the Hon. John Moore. This action was brought by Simpson & Hall, suing as partners, against Joseph L. Hinson, and was commenced on the 30th March, 1888. The complaint contained a count in trover, for the conversion of five bales of cotton; and a special count in case, claiming damages because the defendant received and sold the cotton, knowing that plaintiffs had a mortgage on it for advances, whereby their lien was lost.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 8th June, 1889, by J. Selig, against Merit Street, Hockstadter Brothers, merchants doing business as partners in New York City,' and Knox & Bowie, attorneys at law doing business as partners; and sought (1) to establish the complainant’s rights as the owner of a judgment against Street, which had been recovered, by mistake, in the name of Cohen & Selig, after complainant had become the owner of the…

' Tried before the Hon. Jas. B. Head. This action was brought by D. W. East, against J. W. Worthington & Co., as a partnership, to recover damages for an alleged fraud or deceit, whereby plaintiff was induced to undertake the grading on a portion of a certain railroad, at a grossly inadequate price. The court sustained a demurrer to the complaint, and this ruling is assigned as error. cited Bigelow on Fraud, 474; Prichett v. Munroe, 22 Ala. 502.

Tried before the Hon. Leroy F. Box. This action was brought by Bobert T. Smith against the appellee corporation, to recover damages for personal injuries sustained by plaintiff in attempting to alight from a train of cars, on which he was a passenger; and was commenced on the 5th February, 1887. The pleas were, not guilty, and contributory negligence; and the trial resulted, under the rulings of the court, in a verdict for the defendant.

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

Heard before the Hon. John A. Poster. The bill in this case was filed on the 25th January, 1886, by Mrs. Sallie G. Thorington, against the corporate authorities of the city of Montgomery; and sought to enjoin a threatened sale by the register in chancery of three city lots in Montgomery, under a decree in chancery declaring and enforcing a lien in fayor of the city, on said lots and others, as the property of Mrs. Mary E. Winter, for unpaid taxes.

Heard before Hon. Thos. M. Arrington, at Chambers. The appellant in this case, Joseph S. Winter, applied to Y. M. Elmore, register in chancery at Montgomery, by petition under oath, for an order to take and perpetuate the testimony of I. Poliak and others, as adverse parties to an expected suit; and his application being refused, he applied by petition to Judge Arrington for a mandamus.

Tried before the Hon. John B. Tally. This action was brought by Mrs. Emily E. Hardwick, the wife of G-. L. Hardwick, against John S. Daniel, the sheriff of the county, to recover a horse, buggy and harness, which the defendant had seized under execution against the plaintiff’s husband; and was commenced on the 20th December, 1883.

. Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 17th May, 1889, by J. W. Short and W. T. Short, as administrators of the estate of L. M. Burney, deceased, against W. D. Haynes; and sought, in effect, a settlement of the accounts of a partnership, which had existed between-the defendant and. said Burney.

Tried before the Hon. Leroy F. Box. This action was brought by Bichard W. McClintock, against John W. McCullough and H. W. Armstrong, to recover damages for an alleged trespass, in breaking and entering the plaintiff’s stable, and seizing and carrying away a mule; and was commenced on the 11th December, 1885. The defendants pleaded, jointly and severally, not guilty, and justification under legal process; and the cause was tried on issue joined on these pleas.

<p>Appeal from the City Court of Anniston.</p> <p>Tried before the Hon. W. E. Johnston.</p> <p>cited Munter v. Leinkauf & Strauss, 78 Ala. 546; Powellv. Rankin & Co., 80 Ala. 316; Cooper v. Peck & Clark, 22 Ala. 406.</p> <p>cited Roswald & Stoll v. Hobbie & Teague, 85 Ala. 73; Rhodes v. Smith, 66 Ala. 174; Henderson v. Henderson, 66 Ala. 556.'</p>

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 31st August, 1882, by John W. Grayson, a stockholder of the Memphis & Charleston Railroad Company, on behalf of himself and all other stockholders who might come in as parties with him, against the said corporation, and against the East Tennessee, Virginia & Georgia Railroad Company; and prayed the cancellation of a lease executed by the former to the latter company, an account for the use of property…

Heard before the Hon. S. K. McSpadden. The original bill in'this case was filed on the 26th March, 1889, by Michael Durner against Thomas L. Johnson, to enforce an alleged vendor’s lien on land for unpaid purchase-money, as evidenced by two notes held by the complainant. The land had belonged to the complainant and Alfred R, Mullens, and was sold and conveyed by them jointly to said Johnson, by deed dated November 11th, 1887.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 16th February, 1889, by Goodbar, White & Co., merchants and partners doing business in the city of St. Louis, and judgment creditors of J. B. Mackey, against J. M. Daniel and his wife, Mrs. Myra J. Daniel; and sought (1) to set aside, on the ground of fraud, a conveyance of a tract of land to Mrs. Daniel by said Mackey and wife; (2) to have an account of the moneys invested by said Mackey in the…

Tried before the Hon. John B. Tally. This action was brought by R. Chasteen against the appellant, a corporation organized under the general statutes, to recover damages for personal injuries sustained by plaintiff while attempting to couple two cars of a train on defendant’s road, which resulted in the loss of two fingers on his left hand. The injury occurred in June, 1887, and the action was commenced on the 29th August, 1887.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 25th October, 1886, by J. I. Smith against James I. Davis, and sought to enforce a vendor’s lien on land for unpaid purchase-money.

Clair. Tried before the Hon. Leroy E. Box. This action was brought by Stone & Gambrell, suing as partners, against D. W. Waite & Co., another partnership, and was commenced on the 27th September, 1888.

Tried before the Hon. Jona. Haralson. This action was brought by William J. Stoddard and his wife, Mrs. E. R. Stoddard, against the Western Assurance Company, a foreign corporation doing business in this State; and was founded on a policy of insurance against fire, effected by plaintiffs with defendant, on a gin-house and fixtures. The policy was dated August 12th, 1885, and expired on the 12th February, 1886.

Tried before the Hon. A. H. Simpson. This action was brought by Geo. M. Traylor & Go., suing as partners, against T. G. Hughes, to recover damages for the alleged conversion of 5,000 cigars; and was commenced on the 16th April, 1889.

Heard before the Hon. Thos. W.. Coleman. The bill in this case was filed on the 31st March, 1887, by Fred.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 27th October, 1887, by William Henry Woods and others, stockholders of the Memphis & Charleston Bailroad Company, against the said corporation, and against the East Tennessee, Yirginia & Georgia Bailroad Company; and sought to restrain and enjoin the latter corporation from voting the stock held by it in the-former, which was a majority of all the stock, at an election for directors to be held on the…

Heard before the Hon. John A. Poster. The bijll in this case was filed on the 16th September, 1885, by E. S. Jaffrey & Co., judgment creditors of JohnMcGough, against him, his wife', and their children; and sought to set aside, on the ground of fraud, a conveyance of a large tract of land, executed by him to his wife and children, in consideration, as recited, of his indebtedness to each of them.

Heard before the Hon. J. N. Tallman. In the matter of the petition of Mrs. Nancy Alford, the widow of Jeiferson Alford, deceased, asking the appointment of commissioners to set apart a homestead to her and her minor children, in the tract of land which was owned and occupied by her husband at the time of his death on the 4th June, 1887.