Volume 89 — Alabama Reports

This was a proceeding for the impeachment of Robert R. Savage, judge of probate of Cherokee county, commenced by information filed in this court on the 6th September, 1889, which is here set out in full: “To the Honorable, the Supreme Court of Alabama: William L. Martin, Attorney-General of the State of Alabama, who, for and in the name of the said State in this behalf, prosecutes in his own proper person, comes into the said Hon. Supreme Court at Montgomery, on the 6th day…

Prom the City Court of Mobile. Tried before the Hou. O. J. Semmes. The statute creates and distinctly specifies the only case in which a deposition can be made admissible as evidence against the defendant in a criminal prosecution — that is, “where the defendant files his written consent thereto.” — Code, § 4467. This written consent is a waiver of an important constitutional right, and the courts can not extend the waiver by implication, nor enlarge it by construction.

Ebom the City Court of Decatur. Tried before the Hon. Wm. H. Simpson. The defendant in this case was indicted for tbe larceny of a bog, the personal property of H. A. Burt. Tbe first indictment was found on tbe 9th January, 1890; to wbicb the defendant pleaded in abatement, on account of a misnomer; and the issue joined thereon being found in bis favor, the State entered a nolle-pros., and tbe court ordered a new indictment to be preferred.

From the City Court of Anniston. Tried before the Hon. B. F. Cassady.

Prom the City Court of Montgomery. Tried before t’he Hon. Thos. M. Arrington. The indictment in this case charged that the defendant, Gilbert Lynch, “feloniously took and carried.away from a warehouse one trunk, of the value of $50, the personal property of John M. Johnson;” or, as charged in the other counts, of the Western Bailway Company, or the Central Bailroad & Banking Company.

Tried before the Hon. Jas. R. Dowdell. The record in this case shows that, on the 16th October, 1888, the appellants in this case, H. C. Bearden as principal, and the others as his sureties, entered into a recognizance, or bail-bond, which was approved by the sheriff, and conditioned for the appearance of said Bearden at the next ensuing term of the Circuit Court of said county, to answer an indictment there pending against him for selling whiskey without a license; that at…

Erom tbe Circuit Court of Obilton. Tried before tbe Hon. Jas. E. Dowdell. Tbe defendant in tbis case was indicted for selling spirituous, vinous, or malt liquors, without a license, and contrary to law.

<p> Indictment for Arson. </p> <p>1. Burning inhabited dwelling-house. — To set fire to or burn an inhabited dweliing-house, is arson in the first degree, whether there is at the time any human being in it or not (Code, § 3780); and if the indictment, after describing the building as an inhabited dwelling-house, adds the words, “in which there was at the time no human being,” these words may be rejected as surplusage.</p> <p>2. Same; punishment. — The punishment of arson in the first degree being, at the discretion of the jury, death or imprisonment in the penitentiary “for not less than ten years” (Code, § 3780), they may impose a sentence to imprisonment for life.</p>

Prom tbe Circuit Court of Dale. Tried before tbe Hon. Jesse M. Carmichael. Tbe defendant in this case, Ambrose Pellum, was indicted, jointly with Walter Pellum, a younger brother, for tbe larceny of a gold watch and five dollars in silver, tbe personal property of John Reynolds, charged to have been feloniously taken and carried away from the dwelling-bouse of Robert Reynolds. Being jointly tried, and pleading not guilty, Ambrose was found guilty, while Walter was discharged.

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

From the Oity Court of Montgomery. Tried before the Hon. Thos M. Arrington. The defendant in this ease, J ames Brinkley, was indicted for the murder of Jerry Butler; was convicted of murder in the second degree, and sentenced to the penitentiary for the term of twenty years. The homicide occurred at the defendant’s own house, during a dance and party which, by his permission, was there given by Tom Belser, another freedman.

From the County Court of Colbert. Tried before the Hon. John A. Steele.

From the Circuit Court of Lee. Tried before the Hon. Jesse M. Carmichael. Indictment for petit larceny; motion to quash, and plea in abatement, on account of defects in grand jury; replication, and demurrer. The opinion states the facts. cited State v. Parks, 21 La.

Prom the Circuit Court of Dale. Tried before the Hon. Jesse M. Carmichael.

Erom the Oity Court of Montgomery. Tried before the Hon. Turn M. Arrington. The defendant in this case, Abe Dean, was indicted for an assault and battery on Annie Lou Johnson, á child six years old; was convicted under the charge o£ the court, and fined $20.

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

From the Circuit Court of Sumter. Tried before the Hon. Sam. H. Sprott. The indictment in this case was found at the April term, 1889, and contained two counts; the first charging the defendant, Jeff. Kemp, a freedman, with the larceny of one hog, the personal property of Tom White; and the second, with the larceny of two hogs.

Erom the City Court o£ Decatur. Tried before tbe Hon. E. C. Eyster, as special judge. The indictment in this case contained four counts, each charging tbe defendant, J. M. Salm, with arson in tbe first degree.

<p> Indictment for Carrying Concealed Weapons. </p> <p>1. Carrying concealed brass-knuckles; form of indictment; constituents of offense. — An indictment which charges that the defendant “carried concealed about his person brass-knuckles, or other weapon of like kind •or description” (Code, §§ 3776, 3779), is good and sufficient, and a conviction may be had under it, on proof that he so carried a weapon which, though made of lead, was of the same general shape and size as brass-knuckles, and adapted to the same use.</p> <p>2. Same; apprehension of attack —On a prosecution for carrying a pistol, bowie-knife, or other weapon of like kind or description, coi - cealed about the person, the defendant may prove that at the time he had good reason to apprehend an attack, and the jury may consider that fact either in mitigation or justfication (Code, _§ 3775); but this defense can not be made to an indictment for carrying concealed brass-knuckles, a slung-shot, or other weapon of like kind and description (§ 3776).</p>

<p> Indictment for Carrying Concealed Weapons. </p> <p>1. Testimony of witness as to want of knowledge of fact. — Several witnesses for the prosecution having testified that, at a time and place named, they saw a pistol on the defendant’s person, he can not be allowed to prove by others, who lived in the same house with him at that time, and worked with him in the same field, that they had ample opportunity of seeing and knowing whether he then had or owned a pistol, and that he did not have or own one.</p>

From the Circuit Court of Crenshaw. Tried before the Hon. John P. Hubbard. The defendant in this case, Walter Kirby, was indicted for the murder of Hill Pitman, by shooting him with a gun; was convicted of murder in the second degree, and sentenced to the penitentiary for the term of twenty years.

From: the Criminal Court of Pike. Tried before Hon. ¥k. H. Parks.

From the Circuit Court of Sbelby. Tried before the Hon. Leroy F. Box. Tbe indictment in tbis case charged that the defendant, James England, with the intent to steal, broke into and entered a store-house of John Weldon, in which shoes, and other goods and articles of merchandise, things of value, were kept for use, sale, or deposit. Issue being joined on the plea of not guilty, the defendant was convicted, and sentenced to the penitentiary for the term of four years.

From the Circuit Court of Bullock. Tried before the Hon. Jesse M. Carmichael. The defendant in this case, Jordan Waller, a freedman, was indicted for the murder of Dave Market, another freedman, by shooting him with a gun; was convicted of manslaughter in the first degree, and sentenced to the penitentiary for the term of eight years.

From the Circuit Court of Lawrence. Tried, before tbe Hon. Henry O. Speake. Tbe defendant in tbis case was indicted for tbe murder of James York, by shooting bim with a gun; was convicted of murder in tbe first degree, and sentenced to tbe penitentiary for life. Tbe defendant’s name, as tbe indictment is copied in tbe transcript, w*as spelled Forrest Watkins; and tbis court decides, on inspection of tbe original indictment, tbat it was so written there.

From the City Court of Anniston. Tried before the Hon. W. F. Johnston. The defendant in this case was indicted for carrying a pistol concealed about his person, and pleaded not guilty to the charge. On the trial, he reserved *a bill of exceptions, as follows; “It was admitted that defendant carried a pistol concealed on his person, at the time and place charged.

<p> Prosecution for Obtaining Money by False Pretenses. </p> <p>1. Obtaining money by false pretenses; failure to perform service for surety in confessed judgment for fine and costs; variance. — On a prosecution for obtaining money by false pretenses (Code, § 3811), a conviction can not be had on proof of facts showing a failure by defendant to perform labor or service as stipulated for his surety in a judgment confessed for fine and costs (§ 3832); nor is evidence of such facts admissible.</p>

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

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

Application by petition by James E. Hawkins, as solicitor for Jefferson county, for a mandamus to tbe Criminal Court of said county, Hon. S. E. G-reene presiding, to compel that court to vacate and annul an order re-taxing tbe costs in a case therein lately pending against one Charley Marx, by which the solicitor’s fee was reduced from $150, as first taxed by the clerk, to $7.50.

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

<p> Indictment for Removing Cotton subject to Landlord's Lien. </p> <p>1. Removal of cotton subject to mortgage or landlord’s lien; fraudulent intent. — A conviction may be had for removing cotton subject to a mortgage or landlord’s lien, with intent to defraud the mortgagee or landlord (Code, § 3335), although the only act of removal was hauling the cotton to the gin where it was to be ginned and packed for delivery as stipulated, provided this was done with the alleged fraudulent intent; and where there is evidence tending to show such fraudulent intent, as sending the cotton by another person, and not disclosing the fact that defendant sent it, a charge which ignores the question of intent, or withdraws this evidence from the consideration of the jury, is properly refused.</p>

<p> Indictment for Retailing without License. </p> <p>1. Intoxicating liquors; Busby’s Bitters. — Intoxicating liquors, or bitters, are not necessarily spirituous, vinous, or malt liquors, as those terms are used in the statutes regulating the sale of such liquors by retail (Code, §§ 629, 4036-7); and the court can not assume, as matter of law, that Busby’s Bitters, the ingredients of which are not proved, are within the terms of the statute,'because shown to be intoxicating.</p> <p>2. Sufficiency of indictment; alternative averments —A conviction can not properly be had under an indictment which charges that the defendant, not having taken out a license as required by law, “did engage in, or carry on, the business of retailing spirituous, vinous, or malt liquors, or intoxicating bitters,” the last alternative averment not charging any offense.</p>

From the Criminal Court of Jefferson. Tried before the Hon. Sam. E. Greene. The indictment in this case charged, in a single count, that the defendant, William Martin, killed Owen Kelly, by shooting him with a pistol. The defendant pleaded not guilty, but was convicted of manslaughter in the first degree, and sentenced to the penitentiary for the term of six years.

From the Circuit Court of Crenshaw. ' Tried before the Hon. John P. Hubbard. The defendants in this case, Ben. and Sam. Gibson, were jointly indicted and tried for the murder of John Smith, by shooting him with a pistol, or by cutting him with a knife; were jointly tried, each convicted of murder in the second degree, and sentenced to the penitentiary for the term of twenty years.

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

From the City Court of Anniston. Tried before the Hon. B. F. Cassady. The indictment in each of these two cases was returned into court on the 18th October, 1889; was signed by “J. II, King, solicitor o£ the City Court o£ Anniston,” and was in the following words: “The State of Alabama, Calhoun County; City Court of Anniston, October Term, 1889.

From the Criminal Court of Jefferson. Tried before the Hon. Sam. E. Greene. The defendant in this ease, Lindsey Malachi, was indicted, jointly with Ben. Elzy, Lawrence Johnson, Gilbert Lowe, and Henry Joe, for the murder of John W. Meadows, “by striking him with a stone, or rock, or by some means unknown to the grand jury.” A severance having been granted, Malachi and Joe were jointly tried, separate and apart from the others, each pleading not guilty.

From the City Court of Mobile. Tried before tbe Hon. O. J. Semmes. Tbe defendant in tbis case, Tom Ring, was indicted for tbe murder of Tom Popbam, by shooting bim with a pistol; was convicted of manslaughter in tbe first degree, and sentenced to tbe penitentiary for tbe term of five years.

From the Criminal Court of Jefferson. Tried before the Hon. S. E. Greene. The defendant in this case, John T. Maxwell, was indicted for the murder of John B. Rickies, by shooting him with a gun or pistol; pleaded not guilty, and a special plea of “not guilty by reason of insanity”; was convicted of murder in the first degree, and sentenced to the penitentiary for life. The indictment was found on the 8th October, 1887.

From the City Court of Montgomery. Tried before the Hon. Thos. M. Arrington. The indictment in this case charged that the defendant, Ben.

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

Application by petition in behalf of Harrison Gibson, for the writ of habeas corpus, to procure his discharge from the custody of the Sloss Iron & Steel Company, where he was held as a county convict from Barbour county, under two judgments of conviction rendered by the County Court of Barbour, certified copies of which were annexed to the petition as exhibits.

Application by petition, filed by Tennent Lomas, Esq., solicitor of Montgomery county, for tbe writ of “prohibition, certiorari, or other appropriate writ,” directed to Hon. Thos.

Tried before the Hon; Thos. M. Arrington. This action was brought in the name of John H. Bank-head, as warden of the Alabama penitentiary, against Charles T. Pollard and others, his sureties; was commenced on the 13th May, 1884, and was founded on a penal bond executed by the defendants, which was dated February 28th, 1876, and conditioned as follows: “Whereas, the above bound Charles T. Pollard has this day entered into a contract with John G-.

Tried before the Hon. Thos. M. Arrington. This action was brought by Thomas B. Maddox against the City Council of Montgomery, to recover damages for injuries to his property caused by cutting down the adjacent side-walk to the level o£ the street; and was commenced on the 26th February, 1886. The plaintiff’s property was situated on Herron street, and in the same square with the property of George YY.

Tried before tbe Hon. Jesse M. Carmichael. Tbis action was brought- by H. L. Daughtery, against tbe appellant corporation, to recover damages for its failure to forward a telegram within a reasonable time; and was commenced on.tbe 4th February, 1881.

the Chancery Court of Perry. Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 27th July, 1889, by the “American Freehold Land Mortgage Company of London, Limited, a corporation created under the laws of England, and having its principal office in the city of London,” against John B. Christian and others; and sought to foreclose a mortgage on a tract of land, which said Christian had executed to the complainant.

Tried before the Hon. John P. Hubbard. This action was brought by the appellant, against Mrs. Mattie J. Bice.and Alex. Wilson, as partners composing the firm of Bice & Wilson; and was commenced on the 9th May, 1888.

Tried before the Hon. John P. Hubbabd. This action was brought by Mrs. Elizabeth T. Bragg, against Wm. P. Burks, and was founded on the defendant’s promissory note for $292.45, which was dated March 22d, 1888, payable to Davidson & Joseph or order, on October 1st, 1888, at the banking-house of Josiah Morris & Co. in the city of Montgomery, and was assigned and indorsed by the payees to the plaintiff.

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 80th December, 1887, by Henry Stern & Co. and J. Eaust & Son, mercantile partnerships, suing as creditors of Andrew Curtis, a merchant doing business in Mobile under the name of A. Curtis & Co.; against said Curtis, and against Chipman, Calley & Co., a mercantile partnership doing business in Boston, Mass.; and sought to set aside, as fraudulent, a conveyance executed by said Curtis to Chipman,…

Heard before the Hon. Thos. M. Arrington. The bill in this case was filed on the Mth October, 1886, by W. W. Tobias, against Bice & Wilson, a partnership; and sought to perpetually enjoin a judgment at law which the defendants had obtained against said Tobias and S. B. Matthews, as late partners doing business under the name of Matthews & Tobias.

Heard before tbe Hon. Thomas W. Coleman. Bill in equity by William Lindsey & Co. and others, on behalf of themselves and other creditors of Brice Brothers, an insolvent mercantile partnership, against tbeir said debtors, and against A. J. Dollins & Co., to whom they had made a sale or transfer of all their goods and assets, which was alleged,to be fraudulent, and also against several creditors who had levied attachments on the property.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 16th October, 1888, by Mrs. Dollie Watson, a grand-daughter of Joseph McReynolds, deceased, against Mrs. Martha Turner and others, who were interested in his estate as heirs, legatees and devisees ; and sought to vacate and set aside the probate of a paper, which had been established by a decree of the Probate Court as a codicil to the last will and testament of said McBeynolds.

Leroy F. Box, presiding in the Circuit Court of Calhoun, refusing to grant mandamus to Hon. Emmett F. Crook, judge of probate of said county, requiring him to issue to the… Held: or certified, nor the result published, as required by the terms of said act. The order for the election was made by the Probate Court, while the power to act in the matter was conferred on the judge of probate, and his action was ministerial merely. — Ex parte Trice, 53 Ala. 546; 60 Ala. 429.

Application by petition to this court, for the writ of mandamus, or a rule nisi, directed to Hon. John A. Foster, presiding in the Chancery Court at Montgomery, commanding him to make, or to show cause why he should not make, an order in a cause pending in the Chancery Court of Montgomery, requiring J. T. May, the complainant in the original bill filed in said suit, to repay to Walter Brothers, defendants to the bill, and complainants in an “original bill in the nature of a…

Tried before tbe Hon. H. A. Sharpe. This action was brought by W. G. L. Crawford against the appellant corporation, to recover damages for personal injuries sustained by plaintiff, after dark on the 8th November, 1887, while in the performance of his duties as watchman on defendant’s track at its intersection with Twenty-fourth street in the city of Birmingham.

Tried before the Hon. H. A. Sharpe. This action was brought by Mrs. Martha M. Calderwood, against the appellant, a domestic corporation, to recover damages for personal injuries sustained by plaintiff in attempting to alight from one of the defendant’s cars, at the intersection of First avenue and Twentieth street, in the city of Birmingham. The accident occurred on the 2d October, 1887, and the action was commenced on the 1st October, 1888.

Heard before the Hon. Price Williams. In the matter of the estate of Thomas Dolan, deceased, on the petition of the administratrix, who was the widow, to have the estate declared' insolvent. The intestate died in September, 1887, and letters of administration were granted to bis widow on 1st October, 1887.

Tried before the Hon. John P. Hubbard. This action was brought by A. Ohlander, against R. P. Dexter, to recover the sum of $150, with interest from September 6th, 1887, as agreed to be paid in and by a written instrument signed by the defendant, dated August 27th, 1887, which is copied in the opinion of the court. The complaint contained two counts, as follows:.

Heard before the Hon. Thos. M. Arrington. The bill in this case was filed on the 28th June, 1888, by Mrs. Maggie Boyer, claiming as sole heir at law of Joseph Bihler, deceased, against Johannes Ohmer and others,devisees under the will of Mrs. Theresa Bihler, deceased, who was the wife and widow of said Joseph Bihler; and sought to remove the administration and settlement of Mrs. Bihler’s estate into the Chancery Court, and to have certain real estate in Montgomery sold under…

Tried before the Hon. John P. Hubbard. This action was brought by Simon Strauss, against Mrs. Sallie Gafford and H. T. Wimberly, to recover the possession of a tract of land containing eighty acres, described as the south half of the north-west quarter of section 5, T. 10, B. 15; and was commenced on the 20th November, 1888. The defendants pleaded not guilty, and the statute of limitations of ten years; and issue was joined on these pleas.

Tried before the Hon. John P. Hubbard. This action was brought by R. W. Kelsey against the appellant corporation, to recover damages for the killing of a blooded stallion belonging to the plaintiff, by an engine and train of cars belonging to the defendant, and which was alleged to have been caused by the negligence of the defendant’s agents and servants in charge of the train.

Heard before the Hon. John A. Foster. The bill in this case was filed by the wife, and sought a divorce, on the ground that the abnormal size of her husband’s private parts prevented the consummation of the act of sexual intercourse between them. The parties were married on the 8th July, 1888, and the bill was filed on the 26th September, 1888. The chancellor overruled a demurrer to the bill for want of equity, and his decree is here assigned.as error.

Tried before the Hon. Sam. H. Sprott. This action was brought by E. R. B. Thomas & Sons, suing as partners, against the appellant railroad company, as a common carrier, to recover damages for injuries to a lot of cattle which were received for transportation over the defendant’s road, at Epes’ Station, and injured before they reached their destination by the alleged negligence of the defendant’s servants; and was commenced on the 27th April, 1887.

<p> Statutory Proceeding for Condemnation of Right of Way. </p> <p>1. Assessment for taxation as evidence of value. — The valuation of land by the tax-assessor for the purpose of taxation, in which the owner does not participate, is not admissible as evidence of value, in a statutory proceeding to condemn a right of way through it; but a valuation by the owner himself, returned to the assessor under oath, though not conclusive on hun, is admissible as evidence of value, and not merely to discredit his testimony, on the trial of the condemnation proceedings a few weeks afterwards.</p>

Application by petition by H. H. Matthews, clerk 6f tbe City Court of Montgomery, addressed to Hon. Thomas M. Arrington, the presiding juge of said court, for a mandamus directed to Hon. Cyrus D. Hogue, State auditor, requiring him to draw bis warrant on tbe State treasurer, in favor of tbe petitioner, for tbe amount of a bill of costs in a criminal case, duly certified to by him by tbe petitioner as clerk.

Tried before the Hon. John P. Hubbard. This action was brought by F. M. Black, as the administrator of the estate of John B. Daniel, deceased, to recover damages for the alleged negligent killing of his intestate by a locomotive engine belonging to the defendant. The accident occurred on the 18th April, 1887, near Bolling in said county; and the action was commenced on the 6th July, 1887.

Tried before the Hon. John Moore. This action was brought by H. M. Patterson and his wife, Mrs. Mary E. Patterson, to recover damages for personal injuries sustained by her in riding over a railroad crossing on the defendant’s road; and was commenced on the 20th October, 1884.

John P. Hubbard, This action was brought by A. L. Milligan & Son, suing as partners, against the Alabama Fertilizer Company, to recover compensation for professional services rendered by plaintiffs, as attorneys at law, in the collection, or attempted collection, of a claim against J. B. Harper. The complaint contained only the common counts, and the only plea was the general issue.

Tried before the Hon. Wi. E. Clarke. In the matter of the assessment of taxes, for the year 1889, against the Bienville Water Supply Company, a private corporation furnishing water to the city of Mobile through its water-works. The corporation returned, the value of its property to the assessor at $250,000, but, on his motion and objection, the court of County Commissioners, sitting as a board of equalization, raised the value to $400,000.

Tried before tbe Hon. Jesíse M. Carmichael. This action was brought by B. K. Carlisle against John O. Killebrew, to recover certain personal property, wbicb was described as “2,500 lbs. of seed-cotton, 80 bushels of corn, and 400 lbs. of fodder;” and was commenced on the 3d October, 1887.

Heard before the Hon. Wm. E. Clarke. In the matter of the assessment of escaped taxes against the Stonewall Insurance Company, for the years 1885-89, both inclusive; the question being the liability of the company for taxes on the amount of its capital stock invested in non-taxable Alabama bonds, as follows:' for the year 1885, $68,045; 1886, $67,815; 1887, $112,885; 1888, $109,915; and 1889, $125,085.

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 6th July, 1888, by Mrs. Martharina Duncan and her husband, against the widow and children, personal representative and heirs of Price Williams, deceased, Albert E. Mudge, and several other persons; and sought to establish and enforce complainant’s rights, as sole surviving child and heir at law of her deceased father, John J. Springsteel, in and to a house and lot in the city of Mobile, and an…

Tried before the Hon. ¥m. E. Clarke. This was a statutory claim suit, or trial of the right of property in and to a stock of goods, between J. Pollock & Co., plaintiffs in attachment against Price Brothers, and A. J. Dollins and Mrs. M. P. Adams as claimauts.

Tried before the Hon. John Moore. This action was brought in the name of Lowndes County, against Mrs. it.

Tried before the Hon. Jas. R. Dowdell. “This action was commenced,” as the bill of exceptions states, by original attachment sued out in a justice’s court, on the 7th March, 1890, by Mary Ann Wilson against Daniel Taylor, to enforce a laborer’s lien against the crops raised on the land on which the labor was done.

Tried before the Hon. Jesse M. Carmichael. This action was brought by Mrs. Leonora Rudd, the wife of W. E. Rudd, against S. B. Harper, to recover damages for the alleged tortious taking of a mule, several head of cattle, hogs, &c.; and was commenced on the 12th December, 1889.

<p> Action on Common Counts, and Special Count on Writing. </p> <p>1. Plea to whole complaint, good only in.bar of one count. — When the complaint contains the common counts, and a special count for the breach of a written contract, a plea to the whole complaint, which is good only as to the special count, and which does not allege or show that all the counts are founded on the same cause of action, is demurrable.</p> <p>2. Sustaining demurrer good in part. — When several separate causes of demurrer are assigned to a plea, and the demurrer is sustained generally, if thedefendant declines to amend, or to plead further, this court will affirm the judgment, if any ground .of demurrer was well assigned;</p>

<p> Action for Damages, for Killing Mule. </p> <p>1. Description of corporate name; amendment of complaint. — In an action against a railroad corporation, described in the original summons and complaint as the “Atlanta & West Point Railroad and Western Railway of Alabama Company, a foreign corporation incorporated under the laws of Georgia,” an amendment can not be allowed (Code, § 2833), changing the name to the “Western Railway of Alabama Company, a corporation incorporate d under the laws of Alabama. ’ ’</p>

Tried before the Hon. John Moore. This action was brought by Jim Jones against the appellee, as a common carrier, to recover damages for the loss of a package or bundle of goods, containing blankets, &c., which was delivered to the defendant at Greensboro, for transportation to Birmingham, and safe delivery there to plaintiff; and was commenced in a justice’s court, on the 13th February, 1889.

<p>Appeal from tbe Circuit Court of Montgomery.</p> <p>Tried before tbe Hon. John P. Hubbard.</p>

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 1st May, 1889, by James S. Cole, an infant, who was a grandson of Mrs. Frances D. Sheppard, deceased, against Mrs. Elizabeth C. Connell, who was the sole surviving child of Mrs. Sheppard; and sought to establish the rights of the complainant, as tenant in common with the defendant, in and to a house and lot of which the latter was in. possession, and to have it sold for equitable division or…

Tried before the Hon. H. C. Speake. This action was brought by the appellants, suing as partners, against J. Paul Jones, to recover a mule, with damages for its detention; and was commenced on the 19th April, 1889. The defendant pleaded non detinet, and issue was joined on that plea.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 13th March, 1889, by P. A. Tutwiler, as a stockholder in the Tuskaloosa Coal, Iron, and Land Company, a private corporation organized under the general statutes, in behalf of himself and other stockholders who might come in as parties, against the said corporation, W. O. Jemison, its president, and B. Eriedman; and sought (1) to enjoin a threatened sale of the complainant’s shares of stock in the…

<p> Action on Common Counts, for Goods Sold and Delivered. </p> <p>1. Special damages; error without injury in rulings on pleadings. In an action to recover the price of manufactured articles sold and delivered, a warranty and breach thereof being pleaded, a judgment on verdict for the plaintiff, for the full amount claimed, conclusively establishes that there was either no warranty, or no breach thereof; and the sustaining of a demurrer to a special plea, Which sought to recoup or set off special damages on account .of the alleged breach of warranty, if erroneous, could have worked no injury to the defendant.</p>

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 12th November, 1888, by Sylvester Robert against L. M. Davis, and was in the nature of a bill for specific performance; seeking to obtain a conveyance of the legal title to a tract of land, of which the complainant was in possession under a written instrument signed by the defendant. This instrument is copied in the opinion of the court, where the facts of the case are also stated.

Tried before the Hon. Jesse M. Carmichael. This- action was brought by W. N. Brandon and Mattie Brandon, against Andrew Thrower, and was commenced on the 21st December, ■ 1888. The summons was returned “executed this 24th December, 1888¡” The January term of the court, 1889, commenced on the 14th day of the month; and on the 16th day of January a judgment by nil (licit was entered against the defendant.

S. H. Spbott, presiding judge of the sixth judicial circuit, which includes the county of Greene, refusing to grant a certiorari to revise and review the proceedings of the Commissioners Court, or County Commissioners of said county, establishing a district in which stock shall not be permitted to run at large, under the provisions of the local statute approved February 17, 1885. Sess. Acts 1884-5, pp. 580-83.

Tried before the Hon. Jona. Haralson. Action on attachment bond, by J. H. McLane against J. H. McTighe and others, commenced April 16th, 1888. Demurrer sustained to complaint assigning breach, and judgment on demurrer assigned as error. cited Durr v. Jackson, 59 Ala. 206; Lockhart v. Woods, 38 Ala. 636; Dothard v. Sheid, 69 Ala. 137. cited City Nat.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 2d March, 1888, by Mrs. Savannah Wilder, a married woman, against Sydney B. Wilder and the “American Freehold Mortgage Company of London,” a foreign corporation; and sought to establish and enforce a vendor’s lien on a tract of land, which the complainant and her husband had sold and conveyed to said Sydney T. Wilder, and, more particularly, to have her lien declared superior and paramount to that…

Tried before tbe Hon. John P. Hubbard. This action was brought by Tennent Lomax, P. O. Massie, and T. S. Sayre, against Jacob Griel, to recover $100, with interest, which plaintiffs had paid to defendant on a purchase of his interest in a lot or parcel of land in the town of Sheffield, and was commenced on the 21st June, 1887.

Heard before the Hon. Thos. Cobbs. The bill in this case was filed on the 27th May, 1889, by James Haggerty and his sister, Mrs. Nancy McNeelis, brother and sister of Mike Haggerty, deceased, as his sole heirs at law, against the Elyton Land Company; and sought the specific performance of a contract between the defendant and said decedent, for the sale to the latter of a lot in the city of Birmingham, on 13th February, 1872, on terms specified in the bond for titles executed…

Tried before tbe Hon. War. E. Clarke. This action was brought by the Mobile Savings Bank, to recover the possession of a tract of land particularly described; and was commenced on the 3d March, 1888. Mrs. Kate McDonnell and F. H. McLarney, as executrix and executor of the last will and testament of James McDonnell, deceased, intervened as landlords of the tenants in possession, and defended on the title of their testator.

Tried before the Hon. John P. Hubbaed. This action was brought by Wm. H. Henshaw and others, against the Southern Cotton Oil Company, to recover an undivided interest in a tract of land containing about ten acres, on which the houses and works of said corporation were erected; and was commenced on the 28th March, 1889.

Heard before tbe Hon. Thos. W. Coleman. The bill in this ease was filed on the 31st August, 1889, by Mrs. M. E. McEvoy and Mrs. Jane Serda, married women, children and beirs at law of Cbristopber J. Leonard and bis wife, Mrs. Ellen Leonard, against their six brothers and sisters, William Leonard and others; and sought to establish their rights, as tenants in common with the defendants, in and to two parcels or small tracts of land in the city of'Mobile, wbicb had belonged to…

Tried before the Hon. H. A. Sharpe. The corporate authorities of the city of Birmingham, in September, 1889, made certain improvements on the sidewalks of several streets, curbing, graveling, &c.;… Held: and sustained the demurrer; and this judgment is here assigned as error.

Tried before the Hon. John P. Hubbard. This action was brought by R. E. Bolling & Son, suing as partners, against B. B. McKenzie, and was founded on the defendant’s indorsement of a bill of exchange for $2,664.04, which was described in the complaint as “drawn by the Southern Railway Construction & Land Company, on June 1st, 1887, upon O. W. Scofield, president, for the payment of said sum of $2,664.04 to the order of defendant, by whom said bill was indorsed to plaintiffs;…

Tried before the Hon. H. A. Sharpe. This action was brought by the appellant, a private corporation, against the municipal authorities of the city of Birmingham, to recover taxes which plaintiff had paid under protest, as levied by the defendant for and during the year 1887; and was commenced on. the 15th October, 1888. Defects of form in the pleadings were waived by the parties, and the case was submitted to the decision of the court without a jury, on the agreed facts.

Tried before the Hon. Thos. M. Arrington. Application by petition by J. S. Winter, a stockholder in the First National Bank of Montgomery, for a mandamus against said corporation, and against A. M. Baldwin as its cashier, requiring them to allow the petitioner to inspect and examine the books and records of the bank.

Heard before the Hon. John A. Foster. The bill in this case was filed, on what day the record does not show (except by a recital in the decree that it was filed “in October, 1888”), by Laura A McCall, against Nathan Mash and others; and sought to set aside a sale of certain lands under a mortgage, at which said Mash, the mortgagee, became himself the purchaser, and for an account and redemption.

Tried before the Hon. John P. Hubbard. This action was brought by Mrs. Virginia D. Powell, a married woman, against the New England Mortgage Security Company, to recover for the use and occupation by the defendant of a tract of land containing 400 acres, from the 1st January, 1888, to October 16th, 1889,'on which last day the action was commenced.

Heard before the Hon. John A. Foster. The original bill in this case was filed oh the 16th January, 1888, by the Dumham Lumber Company, a private corpora^ tion organized under the general statutes, against Whitley & Trimble as a partnership, and against the partners individually; and sought to enjoin an advertised sale of the-complainant’s lands and mill property, under a mortgage which said company had executed to the defendants, alleging full payment and satisfaction of…

Tried before the Hon. John P. Hubbard. This action was brought by Mrs. Elizabeth Durden, against George H. Yarner, Wm. J. Eobertson and Charles E. Eobertson, to recover the possession of a tract of land containing fifty acres; and was commenced on the 4th December, 1888, though the notice in ejectment was not served on Yarner and C. E. Eobertson until the 8th December.

Heard before tbe Hon. F. C. Bandolph. In tbe matter of tbe final settlement and distribution of tbe assets of tbe insolvent estate of Sam. Bebr, deceased, by H. C. Tompkins as administrator. Said S. Bebr died on tbe 6tb January, 1888, and bis estate was regularly declared insolvent on tbe 30th July, 1888.

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

Tried before the Hon. ¥s. E. Clarke. This action was brought by Louis Henderson, a freedman, against the Western Union Telegraph Company, a foreign corporation doing business in Alabama, to recover damages for the non-delivery of a telegraphic message within a reasonable time; and was commenced on the 12th August, 1887.

Tried before the Hon. H. A. Sharpe. This action was brought by Samuel M. Mingea against the appellant corporation, as the owner of a street railway in the city of Birmingham, to recover damages for personal injuries sustained by plaintiff by being thrown from a horse-cart, or carriage, in which he was being driven to a fire in discharge of his duties as a fireman of the city.

Tried before tbe Hon. Thos. M. Arrington. The bill in this case was filed on the 25th January, 1888, by Mrs. Bridget O’Connor, a married woman, against her two brothers, James McHugh and Michael McHugh; and sought to enjoin the further prosecution of an action of ejectment, on demises by each of the defendants, to recover the possession of a tract of land, of which the complainant and her husband, John O’Connor, were in possession.

Tried before the Hon. John Moore. This action was brought by George N. Gilmer against the appellant, as a common carrier, to recover damages for the defendant’s failure to deliver a car-load of brick shipped for defendant from Montgomery, consigned to him at “Clover-field Sta.”; and was commenced before a justice of the peace, on the 16th March, 1888.

Tried before the Hon. John P. Hubbard. Motion by W. D. Westcott, sheriff of Montgomery county, for the instructions of the court as to the application of certain moneys in his hands arising from a sale of property under execution against the Montgomery Furnace and Chemical Company, which was claimed by the Decatur Charcoal Chemical Company and by the Montgomery Iron Works, or its assignee, H. C. Moses.

Tried before the Hon. Thos. M. Arrington. This was a bill of interpleader, filed on the 14th October, 1886, by the Montgomery Gas-Light Company, a private corporation, against Alex. T. London as administrator of the estate of D. S. Schanck,- deceased, Mrs. Mary E. Winter, Joseph S. Winter, her husband, and Jno.

Tried before tbe Hon. Jesse M. Carmichael. This action was brought by tbe Addyston Pipe & Steel Company, an Ohio corporation, against the Eufaula Water Company, a corporation organized under tbe general statutes of this State, and engaged in tbe business of supplying water through its works to the city and citizens of Eufaula; and was commenced on the 23d July, 1888.

Tried before the Hon. John P. Hubbard. This was a trial of the right of property in and to a stock of goods, between J. Regenstein & Co., plaintiffs in attachment against T. A. Stephens, andB. F. Stephens as claimant. The plaintiffs’ attachment was sued out on the 1st November, 1887, and was levied on the same day on the stock of goods, which was in the house where said T. A. Stephens had been carrying on a millinery business for several years.

Tried before the Hon. Jesse M. Carmichael. The appellants in this case, suing as partners, commenced an action by summons and complaint, in August, 1888, against F. M. Walker and John A. Hays, as late partners doing business under the name of Walker & Hays; and sued out a garnishment in aid of the action, which was served on A. Gilley, D. McIntyre, and others, as the debtors of said Walker & Hays, or either of them.

Tried before tbe Hon. Jesse M. Carmichael. Tbis action was brought by S. H. Dent against J. Manasses, to recover damages for tbe defendant’s tortious act in receiving and selling several bales of cotton, alleged to bave been raised by one P. A. Butts, on lands wbicb be bad rented from tbe plaintiff, whereby plaintiff’s lien as landlord was lost; and was commenced on tbe 15th April, 1889.

Tried before the Hon. Jesse M. Carmichael. This action was brought by John D. Goodwin against Allen Banks, and was commenced in a justice’s court, on the 26th September, 1888. The cause of action was the defendant’s promissory note for $17, which contained a waiver of “personal exemptions,” and a stipulation for the payment of $5.00 as an attorney’s fee for collection; and it was so described in the complaint filed in the justice’s court.

Heard before the Hon. John A. Poster. The bill in this case was filed, on what day the record does not show, by A. S. Tennille and C. J. Knox, against Mrs. M. A. McLure and J. B. Jones; and sought (1) the foreclosure of two mortgages on a tract of land, executed by said Jones to the complainants, (2) a reformation of one of the mortgages by correcting a mistake in the description of the land, and (3) to compel Mrs. McLure to execute to said Jones a conveyance of the legal…

Heard before the Hon. John A. Poster. The bill in this case was filed on the 8th August, 1888, by A. T. Lockard against Jacob Jones, and sought to enforce a vendor’s lien on land, to the amount of $155, paid by the complainant on or for the balance due on the two notes last maturing. The land was bought by said Jones from one W. T. Hast, in October, 1879, several notes being given for the purchase-money, most of which were paid at or about maturity.

Tried before the Hon. Jesse M. Carmichael. This action was brought by J. B. Harper against J. A. Weeks, to recover a wagon, yoke of oxen, nine head of cattle, and twenty hogs; and was commenced on the 20th November, 1888. The plaintiff claimed the property under a mortgage for advances executed to him by the defendant, which was offered in evidence on the trial; and he testified that about $100, or more, was still due and unpaid on the mortgage debt.

Heard before the Hon. John A. Foster. The original bill in this case was filed on the 6th December, 1886, by Lehman, Durr & Co., commission-merchants in Montgomery, against J. F. Comer and H. M. Comer & Co., a partnership doing business in Savannah, Georgia; and sought principally the foreclosure of a mortgage on crops, mules, &c., executed by said J. F. Comer to complainants, and to hold H. M. Comer & Co. liable for some of the mortgaged property, which they had received,…

<p> Bill in Equity for Discovery, by Creditor without Lien. </p> <p>1. Bill for discovery; allegations; affidavit. — A bill for discovery filed by a creditor without alien, seeking to discover and subject the debtor’s property to the payment of a legal demand (Code, § 3545), must be sworn to, and must allege (1) that the debtor has not visible means subject to legal process, of value sufficient to pay tbe demand, and (2) that he has assets not subject to legal process, which are liable for his debts, and a discovery of which is sought.</p>

<p> Action for Money Paid through Mistake. </p> <p>1. To what witness may testify —A witness, testifying to the correctness of a ci edit entered by him on a note, can not be allowed to state tbat>“he would not have put the credit on the note if he had not paid it.”</p>

Tried before the Hon. Jesse M. Carmichael. The appellants in this case, J. J. & J. E. Johnson, as partners, sued out an attachment before a justice of the peace, on the 26th November, 1888, against the estate of B. J. Commander; and it was levied on a wagon and yoke of oxen. A claim to the property was thereupon interposed by J. E. Hughes, and bond .given to try the right of property.

Tried before the Hon. Jesse M. Carmichael. This action was brought by J. N. Ham and P. J. Ham, against Keith & Son as partners, to recover damages for the defendants’ unauthorized sale and conversion of two bales of cotton, on which plaintiffs claimed to hold a mortgage, whereby their lien as mortgagees was defeated and destroyed; and was commenced on the 4th November, 1887.

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

<p> Action against Probate Judge for Statutory Penalty, for Issuing Marriage License to Minor. </p> <p>1. Consent of parents to marriage of minor. — The written consent of the mother, during the temporary absence of the father from the State, to the issue of a marriage license to her minor daughter (Code, §§ 2315-18), does not. constitute a defeuse to the pVobate judge against an action by the father to recover the statutory penalty.</p> <p>2. Personal appearance of minor, and representations as to age. — The personal appearance of the minor, indicating (hat she is of lawful age, and her representation that she is of lawful age, do not justify the issue of the licen-e (Code, §2319), unless affidavit of the fact is made before the probate judge, either by the minor or by some other credible person claiming to know it.</p>

Tried before the Hon. John P. Hubbard. This action was brought by M. Conner against L. H. Golden, and was commenced on the 28th December, 1886.

<p>Appeal from the Circuit Court of Tallapoosa.</p> <p>Tried before the Hon. Jas. it. Dowdell.</p>

Tried before the Hon. Jas. E. Dowdell. This was a motion to quash a summary execution issued by a justice of the peace, against N. S. Catching and others, his sureties, on a claim bond signed by them, conditioned in the words of the statute.

Tried before the Hon. Jesse M. Carmichael. This action was brought by Mrs. Elizabeth Clark, the widow of John Clark, deceased, against John James, to recover a tract of land containing eighty acres; and was commenced on the 17th November, 1888. The defendant requested the court to charge the jury that they must find for him, if they believed the evidence; and the refusal of this charge, with other rulings duly excepted to,-is now assigned as error.

Tried before tbe Horn Jesse M. Carmichael. Tbe appellee in this case, Moses T. Lynn, filed bis application on tbe 19th January, 1890, in the office of Hon. E. H. Glenn, judge of probate of Bussell county, for a license to retail spirituous liquors “in tbe town of Girard in said county, located in what is known as the Peabody School District,” accompanied with the recommendation in.writing of “more than twenty householders and freeholders of said town and district, as to his…

Tried before the Hon. Jesse M. Carmichael. This action was brought by Ludden & Bates, suing as partners, against the appellant corporation, to recover damages for the loss of a piano, which was destroyed by fire while in the defendant’s depot, or warehouse, on the night of February 19th, 1884; and was commenced on the 13th March, 1886. The complaint contained a count against the defendant as a common carrier, and another as warehouseman.

Tried before the Hon. Jesse M. Carmichael. This action was brought by B. J. Moody against F. M. Walker, and was commenced in a justicé’s court, on the 7 th December, 1888. A complaint was filed in the justice’s court, claiming $39.52 money had and received by the defendant, on the 16th October, 1888, to and for the use of the plaintiff; and the record does not show that any other complaint was filed in the Circuit Court, to which the case was removed by appeal.

<p> Action on Promissory Note, by Payee against Maker. </p> <p>1. Waiver of exemptions; where operative. — A stipulation in a promissory nóte executed iu Georgia, by a resident citizen of Alabama, waiving all homestead rights and exemptions allowed to him “by the laws, State and Federal, in all property, real or personal, now. owned, or afterwards acquired, until this debt is paid,” is a valid waiver of exemptions of personalty, it seems, in Alabama, or in any other State in which the debtor may reside and be sued.</p> <p>2. Presumption as to place where note is executed. — A promissory note, dated at Columbus, Georgia, is presumptively signed and delivered there, without the aid of extrinsic evidence.</p> <p>3. Error without injury in exclusion of evidence. — The exclusion of evidence offered to prove a fact which the law presumes without proof, or of evidence the admission of which would only be prejudicial to the party offering it, is nota reversible error.</p>

Tried before the Hon. Jas.-B. Dowdell. This action was brought by J. A. McElrath, against J. L. Whetstone and others; was founded on a statutory claim bond executed by the defendants, payable to the plaintiff, and was commenced on the 28th February, 1889. The condition of the bond is set out in the opinion of this court.

Tried before the Hon. Jas. R. Dowdell. This action was brought by J. T. Lessley against Alex. McKinnon, to recover the possession of a tract of land particularly described in the complaint; and was commenced on the 10th February, 1888.

Tried before the Hon. Jesse M. Carmichael. This action was brought by the appellant, a corporation chartered under the laws of Virginia, against Nathan Hall, as a member of the firm of Hall & Mobley; was founded on several promissory notes executed in the name of said partnership, and was commenced, as the former report of the case (86 Ala. 305-08) shows, on the 22d February, 1887. The complaint contained several counts on the notes, and also the common counts.

Heard before tbe Hon. Thomas Cobbs. Tbe original bill in tbis case was filed on tbe 15tb July, 1884, by 1).

Tried before tbe Hon. Wk. E. Clarke. This action was brought by Ernst Brothers, suing as partners, against John L. Hollis and his wife, Mrs. Elizabeth G. Hollis; and was commenced on the 20th August, 1887.

Heard before the Hon. S. K. McSpadden. ' The bill in this case was filed on the 21st December, 1889, by David G-. Allen and others, citizens, tax-payers, and property-owners in the town of LaFayette in said county, against the corporate authorities of the town and Mrs. S. A. Frederick; and sought to enjoin and restrain said corporate authorities from paying two warrants which they had drawn, in favor of Mrs. Frederick, and which were given for money borrowed from her by them.