Volume 90 — Alabama Reports

Tried before the Hon. Sam. IT. Sprott. This action was brought by Wm. IT. Propst, a minor, against the appellant corporation, to recover damages for personal injuries sustained while engaged, as alleged, in its service as brakeman, and attempting to couple cars under the orders of the conductor; and was commenced on the 31st December, 1886. This is the third appeal in the case. — 83 Ala. 18; 85 Ala. 203.

<p>Appeal from the City Court of Decatur.</p> <p>Tried before the lion. War. H. Simpson.</p>

Tried before the Hon. James B. Heal. This action was brought by Mrs. Sarah H. Hale, against the appellant, a domestic corporation organized under the general statutes, to recover damages for personal injuries sustained by plaintiff as she attempted to alight from-one of the defendant’s ■street cars in Birmingham, alleged to have been caused-by the negligent act of the driver in starting the car “with a jerk” as she was in the act of alighting.

Tried before the Hon. H. A. Sharpe. This action was brought .by James A- Lovell against the appellee, a corporation doing business at and near Bessemer, and running freight cars drawn by steam-engines, to recover damages for the death of plaintiff’s minor son, alleged to have been caused by the negligence of the defendant’s servants in charge of one of its trains, while he was engaged in coupling.cars in the discharge of his duties as switchman and bralceman.

Tried before the Hon. H. A. Sharpe. . This action was brought by Mrs. Lizzie A. Carmichael against the appellant corporation, to recover damages, on' account of defendant’s wrongful act in carrying plaintiff, travelling as a passenger on one of its trains, two miles or more beyond her destination, and there putting her off in the nighttime at a distance from any residence.

Tried before the Hon. H. A. Sharpe. This action was brought by James W. Smith, against the appellant corporation, to recover damages for personal injuries sustained by plaintiff while in the discharge of his duties as a brakeman on the defendant’s road; and was commenced on the 29th January, 1889.

Tried before the Hon. ¥h. F. Johnston. This action was brought by Simpson O’Shields, against the appellant railroad company, to recover damages for injuries to-his wagon, caused by collision with a train of live or six detached cars, which came down from behind him, and struck the wagon while standing partly on the railroad track.

Tried before the Hon. H. A. Si-iarpe. This action was brought by Edwin Pryor, against the L. & N. Railroad Company, to recover damages for personal injuries sustained by plaintiff while in the discharge, as alleged, of his duties as brakeman; and was commenced on the 24th of December, 1887. The accident occurred on the 14th of February, 1887, at or near a station called Strassburg, and the injuries received by plaintiff necessitated the amputation of one of his legs.

Tried before the Hon. Jas. B. Head. This action was brought by C. A. Hughart against the appellant corporation, as a common-carrier, to' recover damages for the loss of goods; and was commenced on the 4th September, 1888.

Tried before the Hon. John B. Tally. This action was brought by Samuel B. Watson, against the appellant corporation, to recover damages for the killing of a young horse belonging to plaintiff, by the alleged negligence of the defendant’s servants in charge of a passing train of cars, on the 17th August, 1887; and was commenced on the 29th September, 1887.

Tried before the Hon. Sam. H. Sprott. This action was brought by Frank S. Moody against the appellant corporation, to recover damages for the killing of a “Galloway cow” belonging to plaintiff, by the alleged negligence of the persons in charge of the defendant’s passing train by which she was killed. The jury gave the plaintiff a verdict for $500.

Tried before the lion. James B. Head. This action was brought by A. 13. F. Underwood against the appellant corporation, to recover damages lor personal injuries sustained by plaintiff while travelling as a passenger on defendant’s road; and was commenced on the 22d June, 1887.

Tried before the Hon. James B. Head. (1.) Twenty-ninth street was a public highway, dedicated to the use of the public by the acts of the original owner, -the Elyton Land Company; which dedication enured to the benefit of the plaintiff when he acquired one of the lots by purchase, and left in said company no right to impose an additional servitude on the land. Rowan v. Portland, 8 B. Monroe, 232; McCall v. Davis, 94 Amer. Dec. 95; 5 Amer. & En. Encyc.

Tried before the Hon. James B. Head. This action was brought by Malinda Smith against the ¡appellant, a corporation engaged in operating a line of street railway cars in Birmingham and vicinity, to recover damages ■for personal injuries sustained by plaintiff as she alighted from ■one of the cars, on which she had been riding as a passenger; and was commenced on the 27th August, 1888.

Tried, before the Hon. E. T. Taliaferro, as special judge. This action was brought by O. L>.

Tried before the Hon. H. A. Sharpe. This action was brought by Henry B. Watson, against the-appellant corporation, to recover damages for personal injuries sustained by plaintiff, while endeavoring to couple cars in the discharge of his duties as brakeman on the defendant’s road; and was commenced on the 13th of April, 1889. The cause was tried on issue joined on the pleas of not guilty, contributory negligence, and the statute of limitations of one year.

Tried before Hon. II. A. Sharpe. This action was brought by Miss Nellie O. Hill against the appellant corporation, to recover damages for personal injuries sustained by plaintiff while travelling as a passenger on the defendant’s road on the 27th September, 1887; and was commenced on the 7th February, 1888. The cause was tried on issue joined on the plea of not guilty, and resulted in a verdict for plaintiff, for $8,000.

Heard, before the Hon. Thomas Cobbs. The bill in this case was filed on the 13th March, 1889, by Mrs. Belle Word, the widow of Samuel P. Word, against Charles Word, individually and as administrator of said decedent, who was his brother; and prayed a settlement of the accounts of the late partnership of Word Bros., composed of the two brothers, “and. for such other, different, general or special relief as justice and equity may require.” The bill contained the following…

Heard before the Hon. S. K. MoSpadden. The bill in this case was filed on the 9th June, 1888, by E. C. Brock, against his wife, Mrs. M. A. Brock; and sought to establish and enforce a trust in a tract of land containing about 70 acres, which he had conveyed to his wife by deed of gift in Sej>tember, 1880. The grounds on which relief was sought, and the main facts connected with the execution of the deed, are stated in the opinion of the court.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 2d July, 1888, by W. A. B. Carter, against John Martin, W. O. Wells, P. H. Moore, and six other persons; and sought to reach and subject to the satisfaction of a judgment which the complainant had obtained against said Martin, and on which an execution had been returned “No property found,” his undivided interest in a debt owing by said Wells and Moore to him and the other defendants jointly, for…

Heard before the Hon. John A. Foster.. The bill in this case was filed on the 20th March, 1885, by W. D. McCurdy.and T. L. Farris, as administrators of the insolvent estate of Robert E. Simonton, against Mrs. Roxanna Simonton, who was the widdw and sole devisee of said Robert F., and against Mrs. Amanda W. Middleton (nee Simonton) and her husband; and sought to enforce against Mrs. Middleton a vendor’s lien on a tract of land for a balance of purchase-money alleged to be due…

Heard before the Hon. H. A. Sharpe. The bill in this case was filed on the 6th .March, 188.8, by Irwin Buell Higley, against E. B. Powell and O. B. Powell, who were brothers; and sought the s^iecific performance of a contract for the sale and conveyance to the complainant of several lots particularly described in the written agreement between the parties, which was dated September 7th, 1887, and which was made an exhibit to the bill, in these words: “Agreement between E. B.…

Tried before the Hon. II. A. Sharpe. The appellees in this case, J. M. Conway & Co., suing as partners, commenced suit by attachment, on the 29th November, 1887, against M. J. Mullane; and the attachment was levied by the sheriff, on the same day, as shown by his return, “upon the stock of goods, wares and merchandise, consisting of dress goods,” &c., “fixtures, and all other property in store No. 2, 118 Second Avenue, subject to levies heretofore made in favor of” several…

AppexVL from the City Court of Decatur. Tried before the Hon. Vh. H. Simpson. This action was brought by John Verkentoren, against J. L. Krou, and was commenced on the 8th January, 1889. The complaint contained only the common counts, each claiming $335.80. The action was commenced in the Circuit Court,, and was transferred by consent to the City Court of Decatur and the cause was there submitted to the decision of the court, without a jury.

Tried before the Hon. Jas. B. Dowdell. This action was brought by appellants, suing as partners, against P. S. Holt, their alleged tenant, to recover $100, rent for the year 1888; and was commenced by attachment, sued out on the 10th December, 1888, on the ground that a portion of the crop had been removed from the rented premises without the plaintiffs’ consent.

<p> Motion to set aside Sheriff's Sale of Lands under Execution-. </p> <p>1. Setting aside sale of lands under execution; inadequacy of price, and, fraudulent collusion among purchasers. — A sheriff’s sale of lands under execution will be set aside, on the timely application of the defendant, on proof of gross inadequacy of price — as where 2,500 acres are sold for $85, though worth between $5,000 and $10,000 — and fraudulent collusion among the several execution creditors not to bid against each other, and to divide the land among them at the price bid by the nominal purchaser.</p> <p>2. Same; laches. — -A motion to set aside a sheriff’s sale of lands under execution must be made within a reasonable time, as determined by the facts of the particular case; and acquiescence in the sale for a considerable period, with full knowledge of the facts, and unexplained, will be construed as a waiver and abandonment of the right; as here, where the motion was made more than thirteen years after the sale, and was held to be too late, although there was no proof that the defendant’s possession had been disturbed, but the purchasers had brought an action to recover the land two years before the motion was made. (Cowan v. Sapp, 74 Ala. 44, adhered to, and declared to limit, if not overrule, Abercrombie v. Conner, 10 Ala. 293.</p>

Tried before the Hon. John B. Tally. This action was brought by P. W. Keith against the appellants, a partnership, to recover damages for the alleged illegal seizure of a stock of goods, which the plaintiff had purchased from one C. M. Fennell, and on which an attachment was levied by the sheriff, at the suit of the defendants, as the property of Fennell.

Tried before the Hon. J. M. Bueord, as special judge. This action was brought by Lehman, Durr .& Co., suing as partners, against Carter, Dunbar & Co., another partnership, to recover damages for the alleged conversion of a promissory note; and was commenced in the Circuit Court of Morgan county, on the 8th January, 1889, and transferred to the City Court of Decatur by consent.

<p>Appeal from the City Court of Anniston, in equity.</p> <p>Heard before Hon. W. F. Johnston.</p>

<p>Appeal from tlie Circuit Court of Macon.</p> <p>Tried before the Hon. James R. Dowdell.</p> <p>These two cases were argued and submitted together, involving' the same questions, and dependent on the same facts. Each action was commenced on the 9th September, 1889, by E. H. Dryer, purchaser at sheriff’s sale under execution against Mrs. Sarah B. Crawford, and sought to recover tracts of lands which were claimed by defendants (John W. and Julia S. Crawford) under conveyances from Mrs. Sarah B. Crawford, who was their mother. The tracts of land sued for belonged to ¥m. G. Crawford at the time of his death in 1867, and passed under the provisions of his will, which was admitted to probate on the 14th October, 1887.</p> <p>The will contained the following provisions: (1.) “I will that my whole estate be kept together and enjoyed by my beloved wife, Sarah B. Crawford, and my children, Able H., Eliza Gr., Mary Elizabeth, John M. and Julia S., as long as my wife remains unmarried, and my children are minors, or are unmarried, to enjoy the profits and income of the same.” (2.) “I will that, if my wife shall ever marry again, that in that event she shall have set off, by sale or partition, an equal interest in my whole estate, both real and personal, with my children that may then be living, or to their children, if any should die leaving children; the number of each set of grandchildren to be numbered one representative in said division.” (3.) “I will that, when my' children shall become of lawful age, or if they or either of them should get married at an earlier age than the legal age, then and in that event I will that such portion of my estate be given them as my executrix, whom I shall appoint, shall think right and proper, not exceeding an •equal distributive share of the whole estate.” (4.) “I will that my beloved wife, Sarah B. Crawford, be and act as my sole executrix, and that she be endowed with all the privileges and rights of buying, selling and conveying any property that I have, with any rights or titles thereto, in the same way that I would have, if I were living, to do and transact the business myself.” (5.) “I will that she be not required to give security for her executorship.”</p> <p>The court charged the jury, on request, that they must find for the defendant, if they believed the evidence. The plaintiff excepted to this charge, and it is here assigned as error.</p>

Tried before Hon. John B. Tally. This action was brought by Richard P. Shattock, against Vincent D. Ladd, and was commenced on the 30th October, 1885. The plaintiff died pending the suit, and it was revived in the name of his administratrix.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 18th May, 1889, by J. J. Flowers, against IT. C. Williams and R C. Nuckols; and sought to enforce a vendor’s lien on land, for a balance of the purchase-money unpaid, as evidenced by the defendants’ promissory note under seal for $2,500, which was payable to W. A. Handley, and assigned by him to the complainant.

Tried before the Hon. James B. Head. The appellants in this case, suing as partners, commenced an action against A. T. Palmer, by attachment sued out before a justice of the peace, on the 27th February, 1888. By indorsement on the writ of attachment, the justice appointed and •deputized O. B. Williamson as special constable to levy it; and it was levied by him, on the same day, on a stock of goods then in the possession of said Palmer.

Tried before the Hon. Jesse M. Carmichael. This action was brought by P. A. Burrus, three minor children AArho sued by him as their next friend, and T. E. Blanchard, against B. F. Meadors, J. B. Meadors, and Lewis Meadors, to recover the possession of a tract of land containing about 85 acres, particularly described in the complaint, and was commenced on the 27th August, 1885.

Heard before the Hon. Ti-ios. A. Street. In the matter of the estate of Montgomery P.-Carnes, deceased, on final settlement of the accounts and vouchers of Andrew J. McDonald as administrator. The intestate died about the 1st October, 1884; letters of administration to McDonald, who was the general administrator of the county, were granted on the 1st December, 1884; and the settlement of his accounts was had on the 12th August, 1889, showing abalance of $808.49.

Heard before the Hon. H. A. Sharpe. The bill in this case was filed on the 29th Octqber, 1887, by Julian L. Lockwood, against William A. Fitts; and sought the rescission and cancellation of a contract, by which the complainant sold and conveyed to the defendant, on the 26th March, 1887, an undivided one-fourth interest in a tract of land near Birmingham containing two hundred acres, in exchangefor twenty lots near the city of Minneapolis.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 12th January, 1889, by Wm. S. Waldrop and others, children and heirs at law of Ezekiel Waldrop, deceased, against the partners composing the firm of Friedman & Loveman; and sought to redeem a tract of land, of which the defendants were alleged to be in possession as mortgagees, with an account of the rents and profits.

Tried before Hon. Leroy F. Box. This action was brought by James D. Leak, as administrator of the estate of Charles Hawkins, deceased, to recover damages for personal injuries which resulted in the death of said Hawkins, who was run over and killed by a train of cars belonging to the defendant corporation; and was commenced on the 14th July, 1887.

I-Iearcl before the Hon. Jona. Haralson. Held: in the opinion accompanying the decree, that although the contract of December 10th, 1880, might not be binding on Mrs. Donnor personally, or on her statutory property, yet its repudiation by the defendants justified the' complainants in treating' it as ended, and filing their bill for partition; and that Mrs. Donnor’s purchase from…

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 3d March, 1887, by Joseph H. Dent and others, children of Mrs. Eliza Dent, deceased, against B. M. Long and W. B. W. Dent, the latter being a brother of the complainants; and sought the rescission of a contract between Mr?.

Tried before Hon. John Moore. This action was brought by Mrs. Amanda C. Dew against John Howze and others, to recover the possession of a tract of land containing 160 acres, which was particularly described in the complaint, with damages for its detention; and was commenced on the 24th February, 1887. The plaintiff was formerly the wife of Wm.

Tried before the Hon. Jas. B. Head. This action was brought by Benjamin T. Webb, ag'ainst the appellant corporation, to recover damages for personal injuries sustained by j)laintiff, who was struck and knocked down by an engine and tender on the defendant’s road in one of the streets of Birmingham. The defendant pleaded not guilty, and contributory negligence, and issue was joined on these pleas.

Tried before the Hon. H. A. Siiarpe. This action was brought by Mrs. Laura Osborn, widow and administratrix of the estate of John Osborn, her deceased husband ; and was commenced, as the summons and complaint are copied in the transcript, on the 21st November, 1888 (?) The action was founded on a policy of insurance against accidents, issued by the defendant to said John Osborn, which was dated February 18th, 1888.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 30th January, 1888, by Aubin L. Boulware, as receiver, appointed by a court of competent jurisdiction in Virginia, of the property and assets of the Piedmont and Arlington Life Insurance Company, of Richmond, Virginia, an insolvent corporation; against Mrs. Sophia L. Davis, individually and as administratrix of the estate of her deceased husband, Nicholas Davis, and their children; and sought to…

Tried before Hon. John B. Tally. This action was brought by Kirby & Brother, suing as partners, against William Bolling, to recover damages for the alleged conversion of a sewing-machine; and was commenced in a justice’s court, on the 30th September, 1887.

<p>Appeal from tlie Chancery Court of Lauderdale.</p> <p>Heard before the Hon. Thomas Cobbs.</p> <p>The bill in this case was filed on the 27th July, 1888, by J. M. Robinson & Go., a mercantile partnership doing business in Louisville, Kentucky, as judgment creditors of McAlester & Jackson, a late partnership doing business in Florence, Alabama, against Mrs. Lou R. Powers and her husband; and sought to redeem, as such judgment creditors, a town lot in Florence, which Mrs. Powers had bought at a sale under a power in a mortgage, executed by the partners comprising the firm of McAlester & Jackson, and signed also in the partnership name.</p> <p>The firm of McAlester & Jackson was composed of Jno. W. McAlester and William Jackson; and it was dissolved, as the defendants’ evidence showed, in February, 1885, when a general assignment for the benefit of creditors was made. The complainants’ judgment against said firm 'was founded on a debt contracted prior to its dissolution, and was rendered by default, in the City Court of Birmingham, on the 5th July, 1888, service of process having been made on said Jackson; and the judgment recited that “said Jackson, on whom the summons in this cause was served, was one of the firm of Mc-Alester & Jackson, at the time of the creation of the debt sued on, and also at the time of such service.” The lot was conveyed to “McAlester & Jackson, a firm composed of John W. McAlester and William Jackson, of the second part,” by deed dated December 27, 1881; and they testified on the part of the complainants, that it was bought for partnership purposes, and paid for with partnership funds. The mortgage under which the lot was sold, and which was dated March 4th, 1882, purported to be executed by “John W. McAlester and William Jackson, parties of the first part,” and it was signed and acknowledged by them: and the partnership name was also signed to it, though not mentioned in the body of the instrument. The sale under the mortgage was made on the 9th August, 1886, Mrs. Powers becoming the purchaser; and the tender and offer to redeem was made on the 5th July, 1888. The defendant did not dispute the regularity of the tender, but denied the complainants’ right to redeem, and assailed the validity of their judgment.</p> <p>On final hearing, on pleadings and proof, the chancellor rendered a decree for the complainants; and his decree is here assigned as error.</p> <p>(1.) The complainants’' judgment is a nullity, because it was rendered against a dissolved partnership, and not against the partners individually. 4 Porter, 184; 1 Ala. 228; 8 Porter, 523; 18 Ala. 478; 34 Ala. 125: 91 U. S. 160. (2.) The defendant is not estopped by the recitals of the judgment. — 1 Herman on Estoppel, § 112; Moore v. Easley, 18 Ala. 619; Duncan c& Hooper v- Stewart, 25 Ala. 408; 34 Ala. 694. (3.) Even if the judgment were valid, it gave the complainants no right to reedeem. If the mortgage had never been executed, they could not have levied an execution on it, because the legal title was never in the partnership, but in the individual partners as tenants in common. — Andrews v. Brown, 21 Ala. 437; Slaughter v. Swift, 67 Ala. 494; Parsons on Partnership, 379; Bates on Partnership, § 296.</p> <p>(1.) The statute gives the right to' sue a partnership by its firm name, and declares the effect of the judgment.- — Oode, § 2605. That the dissolution of a partnership does not destroy the rights and remedies of creditors,, see Mudge v. Treat, 57 Ala. 1; Parsons on Partnership, 398 2 Bates on Partnership, § 1065; Wendall v. Osborn, 63 Iowa, 99; 18 Ohio St. 134. The cases cited for appellant, on this point, were decided under a former statute, which was materially different from the present. (2.) The recitals of the judgment are conclusive as to the existence of the partnership when the process was served. — Freeman on Judgment, § 131; Turrentine v. Daly, 82 Ala. 205; Ilamner v. Mason, 24 Ala. 480; Qunn v. Howell, 27 Ala. 663; Wyatt v■ Rarnbo, 29 Ala. 510; Landford v. Dunklin, 71 Ala 594; Glass v. Glass, 76 Ala. 368; 76 Amer. Dec. 76; 83 Amer. Dec. 295 ; 30 Oal. 446. (3.) The land was bought with partnership money, for partnership purposes, and was conveyed to the partnership by its firm name; and the deed must have effect according to its terms. — 73 Ala. 348; 79 Ala. 101; 72 Ala. 433. The legal title was vested in the individual partners, but the interest of each was only a claim against the surplus remaining after the payment of partnership debts. — Page v. Thomas, 1 N. E.'Rep. 79; 3 Brick. Digest, 692, 89, 95. (4.) The redemption statute is remedial, and is to be liberally construed. — Trimble v. Williamson, 49 Ala. 527; Powers v. Andrews, 84 Ala. The partnership might have redeemed, and a judgment creditor has equal right.</p>

Tried before the Hon. John B. Tally. This action was brought by Mrs. Melissa Fenn and others, children and heirs at law of John IT. Sheppard, deceased, against J. E. Gilliland and others, and was commenced on the 28th February, 1887. The tract of land sued for, which contained several hundred acres, once belonged to A. W. Sheppard, and was conveyed by him, by deed dated May 15th, 1867, and duly recorded, to said John IT. Sheppard, who was his son.

Tried before the Hon. Henry O. Speake. This action Avas brought by Wm. T. Taylor against Frank A. Howard, and was commenced on the 14th March, 1887.

Heard before the Hon. Tiios. M. Arrington. The bill in this case was filed on the 17th February, 1886, by Frank W. Lide against Howard P. Park, and sought to set aside three several sales under powers in mortgages, at each of which one Robert E. Park became the nominal purchaser, and his subsequent conveyance of the land to said Howard P. Park, who was his brother. The tract of land had belonged to Alex.

<p> Statutory Claim Suit for Dummy Engine. </p> <p>1. Defenses available to claimant.- — When a claim is interposed by a, third person to property for which an action of detinue is pending,, and bond is given for the trial of the right of property (Sess. Acts 1888-9, p. 57), the claimant can not be heard to assail the right of the plaintiff, a private corporation, to institute the action, or the official character and authority of the persons who caused it tobe instituted; and the plaintiff having proved that the property was in the possession of the defendant when seized by the sheriff under the writ in detinue, the claimant can not be heard to assert that said possession was held in his interest, and subject to his control, unless under legal title paramount to that of the plaintiff.</p> <p>2. Payment of freight charges by agent. — When a private agent of a corporation, having an order from its president or superintendent to take possession of personal property belonging to it, is required to pay freight charges due to a common carrier in order to get possession, and pays the amount out of his own moneys, he is entitled to retain the possession, as against his principal, until the amount is repaid him; otherwise if the payment was made with the funds of the principal, which would be presumed if he was acting in the capacity of superintendent.</p> <p>3. Rent, or hire, and wear and tear, as elements.of damages. — In an action for the recovery of personal property in specie, or a statutory claim suit growing out of it, the plaintiff can not recover, as damages, both rent (or hire) and ordinary wear and tear, since the former includes the latter.</p>

Arpear from the City Court of Birmingham, in equity. Heard before the Hon. H. A. Sharpe. The bill in this case was filed on the 15th September, 1886, by Tilomas McDermott and others, as creditors of Benj. F. Eborn, against him and the Jefferson County Savings Bank; and sought to set aside, as fraudulent, a conveyance of his stock of goods by Eborn to said bank, and to subject the property to the satisfaction of complainants’ several debts against him.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 24th of April, 1888, by Mrs. Susan A. Foster, wife of E. H. Foster, daughter of Paul J. Watkins, deceased, and grand-daughter of Samuel Watkins, deceased, against Paul W. Phinizy and others, grand-children and great-grand-children of said Samuel Watkins; and sought a judicial construction of the will of the said Samuel Watkins, particularly the 6th clause, and the distribution of the property in 'the…

Tried before the Hon. Leroy E. Box. This action was brought by Lucy Richardson and others, children and heirs at law of Winfrey Bonds, deceased, against the Woodstock Iron Company, C. A. Sprague, and others; and was commenced on the 20th April, 1889.

<p> Motton for Summary Judgment against Sheriff and Sureties on Oficial Bond. </p> <p>1. Statutory damages against sheriff, for failure to indorse on execution date of delivery to him. — For the failure of a sheriff to “indorse on an execution the true date of its delivery to him,” he and the sureties on his official bond are liable to a summary judgment “for ten per centum on the amount of the execution” (Code, § 3105); but this means the principal only, and does not include the interest on it.</p> <p>2. Notice of motion to sureties; appearance. — The entry of a motion on the riiotion docket, in term time, is sufficient notice • to the sheriff and his sureties (Code, § 3097); and when the record recites that an issue was made up between “the parties,” and submitted to a jury, this sufficiently shows an appearance by the sureties, and the same intendments will be indulged in favor of the judgment as in ordinary suits before courts of general jurisdiction.</p> <p>3. Sheriff’s indorsement on execution, showing date of receipt; waiver thereof by directions to send to another county. — It is the duty of the sheriff, receiving an execution, to indorse on it the true date of its delivery to him, and to do this within a reasonable time; but, if he makes the indorsement at any time before the execution is returned to the clerk’s office, he is not liable to the statutory penalty (Code, § 3105); and if, by instruction of the plaintiff, he sends it to the sheriff of another county, not having indorsed it, the right to enforce the statutory penalty on account of the failure is waived and lost; nor is it revived when the execution is returned to him by the other sheriff, instead of being returned to the clerk’s office, since it has then lost its vitality in his hands, and he can do nothing with or under it.</p>

Tried before the Hon. John Moore. This action was brought by Brown Irvin against Michael Mclnerny, to recover damages for an alleged trespass by defendant on certain premises, which were described as “the-north-east corner of lot 203, and the south-east twenty feet of lot 204, located in the town of Decaturand was commenced on the 25th March, 1887. The defendant pleaded not guilty as to lot 203, and liberum tenementum as to lot 204; and! issue was joined on these pleas.

Tried before the Hon. Henry O. Speake. This action was brought by Dr. Anthony B. Shelby, against Burwell J. Curry, and was commenced on the 10th January, 1888.

Tried before the TIon. John B. Tally. This action was brought by John B. Burton against Sam. Henry, to recover damages for the breach of a written contract; and was commenced on the 17th August, 1887. The contract was dated August 1st, 1884, purported to be made “between Sam.

<p>Appeal from the Circuit Court of Shelby.</p> <p>'Tried before the Hon. Leroy F. Box.</p> <p>This action was brought by W. H. Taylor against A. H. Reliar and others, to recover damages for an alleged trespass by the defendants in entering a store-house and seizing a stock of goods, which the plaintiff had bought from McCary & Barr; and was commenced on the 15th March, 1886. Reliar was the United States marshal for the Northern District of Alabama, and D. R. Dunlap, one of the defendants, was his deputy, and levied two attachments on the storehouse and goods as the property of said McOary & Barr; the other defendants being sureties on bonds of indemnity given to procure the levy of the attachments. The purchase of the property by the plaintiff was made on Saturday evening, January 30th, 1886, the agreed price being $2,750, partly for cash, and partly on credit; and plaintiff’s evidence tended to show that this “was the fair and reasonable value of said property.” The attachments were levied on the property on the 10th February. 1886. It was admitted that McOary & Barr were insolvent at the time they sold out to plaintiff; and defendant insisted that plaintiff was chargeable with notice, actual or constructive, of their condition.</p> <p>The court gave the following (with other) charges to the jury, on request of the plaintiff: (1.) “ If the jury believe from the evidence that Taylor, on or about January 30th, 1836, bought from McOary & Barr the store-house, lot and stock of goods in controversy, and paid them therefor a pair of mules, and a due-bill for $225, which he paid a few days thereafter, and executed to them and to others his notes aggregrating $2,250 ; and that the amount so paid, and the notes so given, were the reasonable value of the store-house, lot and goods ; and that said Dunlap, as deputy-marshal, afterwards seized and took possession of said store-house and stock of goods, under the writs of attachment given in evidence; and that defendant was the United States marshal under whom said Dunlap was acting in making such seizure; then said defendants axe liable to plaintiff for the value of the goods so seized, and the value of the use of the store-house while they had it in possession, unless the defendants have satisfied them by the evidence, (1) that McOary & Barr, at the time the purchase was made, were insolvent, or in embarrassed circumstances, and (2) that Taylor, at that time, had notice, actual or constructive, that they were insolvent, or in embarrassed circumstances; and the burden of proving' each of these facts is on the defendants, and plaintiff' is entitled to recover unless they have proved both of them.” (3.) “Before the jury can find that Taylor' was guilty of fraud in the purchase from McOary & Barr, the defendants must show facts and circumstances which not only cast a suspicion on the transaction, but which are not fairly and reasonably reconcilable with fair dealing and honesty of purpose; and until this is done,the jury can not find that plaintiff was guilty of any fraud.”</p> <p>The defendants excepted to these charges, and here assign them as error, with other matters.</p>

Tried before the Hon. Henry C. Speaks. This action was brought by William Y. Prewitt, against Mrs. Caroline Ashford, to recover a tract of land containing 705 acres; and was commenced on the 22d. March, 1888. The land sued for was part of a larger tract, which once belonged to Thus. H. Ashford, the husband of Mrs. Caroline Ashford; and it was sold and conveyed by him, prior to 1858, to Richard Prewitt.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 19th July, 1889, by Mrs. Octavia A. Otey and her children, against Charles S. McOalley and others; and sought (1) an injunction against a threatened sale of a tract of land under a power of sale contained in a mortgage, and (2) a redemption and account.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 8th March, 1888, by Felicia C. Hubbard, an infant suing by her next friend, against Wm.

Tried before the TIon. John B. Tally. This action was brought by W. E. Snodgrass, against Geo. B. Caldwell, E. H. Caldwell, and D. K. Caldwell; was founded on the defendants’ bond, or promissory note under seal, for $810.90, dated August 1, 1884, payable to plaintiff twelve months after date, with interest from date, and containing a waiver of exemptions; and was commenced on the 8th Jfily, 1887.

Arpear from the Circuit Court of Pike. Tried before tbe lion. John P. Hubbard. The appellee in this case, S. H. Logan, brought two actions against the Troy Fertilizer Company, a domestic corporation, to recover wages, or compensation, alleged to be due under a contract of employment. Each action claimed $100, as one month’s wages; and each was commenced in a justice’s court,, on the 12th November, 1888.

Tried before the Hon. Sam. IT. Sprott. This action was brought by Mrs. Marie L. Cox, the wife of George W. Cox, against Herman Gluck, to recover thirty barrels of sugar; and was commenced on the 10th April, 1882.

Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 26th March, 1887, by William D. Rogers against Roland Kimbrell and his wile, Mrs. Sallie Kimbrell; and against Edward B. Rentz, Richard E. Rentz, and Mrs. Alice McGehee, a married woman, who were the children of Mrs. Kimbrell bjr a former husband; and sought to foreclose a mortgage which said Kimbrell and wife had executed to the complainant.

Tried before the Hon. John B. Tally. This action was brought by Henry H. Coulson against Win. E. Snodgrass, and was commenced on the 2d July, 1887.

Appear from the City Court of Birmingham. Tried before the Hon. H. A. Sharpe. This action was brought by Mrs. Lillie Lester, against Mrs. L. M. Carr, to recover a piano, and was commenced on the 20th September, 1889. Issue was joined on the plea of non detinet, and the case was submitted to the decision of the court without a jury.

<p> Attachment for Rent. </p> <p>1. Suspension of trial pending claim suit. — In an attachment suit, if' a statutory claim is interposed to the property levied on, no judgment can be rendered until the claim suit is ended (Code, § 3000); but the interposition of a claim to only a part of the property levied on,, does not require a suspension of the trial.</p> <p>2. Amendment of affidavit. — An affidavit for attachment may be-amended in matter of substance (Code, §§ 2998, 3073), when the writ is. sued out to enforce a landlord’s lien for rent, as well as in other cases..</p> <p>3. Plea in abatement; craving oyer. — A plea in abatement to an attachment, and to the affidavit on which it is founded, must crave oyerof them, and set them out.</p> <p>4. General objection to evidence; variance. — A general objection to-evidence offered is sufficient, when it is on its face irrelevant or illegal, but not when a reference to extrinsic facts is necessary to show its illegality; as, in an action to recover rent reserved by a written lease, a general objection to the admission of the lease as evidence is not sufficient to exclude it, although there may be a variance between it and the complaint in the description of the premises.</p> <p>5. Stipulation in lease for payment of attorney’s fees. — When a lease-contains a stipulation that the lessees “shall be taxed with attorney’s-fees, in the event of the employment of an attorney by the lessor on account of the violation of any of the conditions of the lease by them,”' the lessor may recover a, reasonable attorney’s fee in an action for the rent commenced by attachment, the same being specially claimed in. the complaint.</p>

Tried before the Hon. ¥«. H. Simpson. This action was brought by John Hoffman against Edward D. White, to recover the possession of a narrow strip of land in Decatur, seven (7) feet wide by 132 feet in depth; and was commenced on the 26th August, 1887. The plaintiff claimed the strip of land as part of his lot No. 23, while the defendaut claimed it as part of his lot, No. 32, which adjoined plaintiff’s lot on the west.

Heard before the Hon. T. J. Thomason. Petition by Joshua Ballard for an order of court requiring D. A. Perryman, as administrator of the estate of Jacob Presnell, deceased, to execute to him a conveyance of title to a tract of land, which said administrator had sold under an order of the court. M. A. Webb, who was reported as the purchaser at the sale, and the administrator, were made defendants to the petition.

Tried before the Hon. H. A. Sharpe. This action was brought by S. C. Davidson, against S. R. Truss, to recover a stock of goods, on which the defendant, who was then sheriff of the county, had levied several attachments as the property of A. T. Palmer; and was commenced on the 14th March, 1S88.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 30th June, 1888, by Bettie J. Inman against George Prout, Joshua Prout, John Prout, and Holden W. Prout; and prayed a sale for partition of certain lands, described as lots No. 85 and No. 154, in Tuscumbia, in which complainant claimed an undivided one-fifth interest, as purchaser at execution sale against Patrick Prout, who was a brother of the defendants; and also a prayed that certain proceedings…

<p>Appeal from the City Court of Decatur.</p> <p>Tried before the Hon. Morris A. Tyn&, as special judge.</p> <p>cited Lakeman v. Grinnell, 2 Bosw. (N. Y.) 626; Field on Bamages, § 376.</p>

Tried before the Hon. Wm. H. Simpson. This action was brought by Mrs. Mary S. Hobart, against W. L. White, and was commenced on the 6th April, 1889, in the court of a justice of the peace. A garnishment was sued out in aid of the action, which was served on L. M. Ealk, as the debtor of said White.

Tried before the Hon. James R. Dowdell. This- action .was brought by W. C. Darden against James T..

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 27th June, 1889, by Mrs. Mattie O. Simpson, the wife of R. T. Simpson, against J. W. Borst and 8. J. Graham; and sought the cancellation of a conveyance which the complainant and her husband had executed to the defendants, as a cloud on the complainant’s title to the lands.

Tried before the Hon. James R. Dowdell. This action was brought by Joseph R. Hood against Henry Disston & Sons, and was commenced by attachment sued out on the 8th May, 1888.

Heard before the 'Hon. Thomas Cobbs. The bill in this case was filed on the 9th April, 1889, by-Gilbert Carter, against Mrs. Esther Sheldon and her husband, John Y. Sheldon; and sought the foreclosure of a mortgage, which was signed by the defendants, attested by one witness, duly proved and recorded, and in these words: “ Know all men by these presents, that for and in consideration of a certain deed of land given, and my promissory note for part price thereof, indebtedness…

Tried before the Hon. Leroy F. Box. This action was brought by George W. Alexander, individually, and as administrator of the estate of Anna Alexander, deceased, and W. J. Borden, to recover the possession of a tract ofland particularly described in the complaint; and was commenced on the 6th July, 1886.

Tried before the How. Wm. L. Hood, as special judge. This action was brought by Alpheus T. Copeland, as the assignee of Mrs. Dora Roberts and her husband, against the appellant, a New York corporation doing business in Alabama through its agents; and was founded on a policy of insurance against loss by fire, which Mrs. Roberts had effected with the defendant, on a house occupied by her as a family residence.

Tried before the Hon. John B. Tally. This action was brought by Samuel lb Privett, against Luther R. Roach; was founded on a judgment for $118.76, alleged to have been rendered by the Supreme Court of Tennessee, on the 23d September, 1882, on appeal from the Circuit Court of Marion county; and was commenced on the 29th April, 1886.

<p>Appeal from the Chancery Court of Jefferson.</p> <p>Heard before the Hon. Thomas Cobbs.</p> <p>The bill jn this case was filed on the 24th January, 1890, by Thomas A. Mack, a stockholder in the Eureka Company, a private corporation, against the said corporation, H. F. DeBardeleben, its president, David Roberts, secretary and a director, A. T. Smythe, another director, and the DeBardeleben Coal & Iron Company, another private corporation; and prayed relief «as follows : “That a writ of injunction issue, restraining and enjoining the DeBardeleben Coal & Iron Company, its officers and directors, agents and servants, from voting upon any and all stock standing in its name on the books of the Eureka Company, and especially from voting upon said 4,673 shares of stock bought by said DeBardeleben (C. & I.) Company fromFallis and others, as set out in this bill, or any part of said stock, at any election for directors of said Eureka Company, or at any meeting of said company, or in any manner participating therein; and restraining and enjoining said Eureka Company, its officers and agents, inspectors of elections, from permitting them to vote on said stock standing on the books of the company in the name of said DeBardeleben (0. & I.) Company, or any one else; and further restraining and enjoining the said DeBardeleben (C. & I.) Company, its officers and agents, from selling or disposing of any part of said shares standing in its name, or held in trust for it by any one, except as may be done by the order and direction of this hon. court; and that said H. F. DeBardeleben may be enjoined and restrained from acting as the president of said Eureka Company, or undertaking to make contracts, or to act for it in any capacity, as managing agent or officer of said company; and that said Roberts may be enjoined and restrained from acting as secretary, or as director of said Eureka Company, or as any officer of said company; and that said A. T. Smythe may be enjoined and restrained from acting as an officer of said company ; and that said DeBardeleben, Roberts and Smythe, being a majority of the board, may be restrained and enjoined from levying any debt or mortgage upon any part of the property' of the said Eureka Company.” The bill prayed, also, the appointment of a receiver to take charge of the property of the Eureka Company, and for general relief.</p> <p>The material allegations of the bill, on which the prayer for relief was founded, are stated in the opinion of the court. On the filing of the bill, a temporary injunction was granted; and after answer filed, the defendants submitted a motion to dismiss the bill for want of equity, and to dissolve the injunction, (1) forthe want of equity, and (2) on the denials of the answer. The chancellor overruled the motion to dismiss the bill, but dissolved the injunction on the denials of the answer. The complainant appeals from this decree, and here assigns it as error.</p> <p>cited the following authorities on the main points in the case: M. db C. Railroad Go. v. Woods, 88 Ala. 630; Nathan v. Tompkins, 82 Ala. 438; Moses v. Tompkins, 84 Ala. 613; Webb r. Ridgeway, 38 Md. 364: 120 Ill. 447; 62 Ind. 296; 20 Hun, N. Y.355; 1 Mor. Corp. §§ 242, 252; High Inj. § 1232; Cook on Stockholders, § 741; 19 A. & E. Corp. Oases, 353; 6 Gill & J. 94; Dodger. Woolsey, 18 How. 331; 3 Pom. Eq. 1092; 32 N. J. Eq. 236.</p> <p>cited Tuskaloosa Man. Go. r. Gox, 68 Ala. 71; M. db P. TÁne r. Wagner, 71 Ala. 581; Nathan r. Tompki/ns, 82 Ala. 437; 3 Pom. Eq. § 1094; Hawes r. Oakland, 104 U.S. 455; 69 N. Y. 154; 104 Mass. 387; 146 Mass. 485; G. db A. R. R. r. Elkins, 37 N. J. Eq. 276; Pender r. Lushington, 6 Oh. Div., L. R. 70; Moffatt v. Farquhar, L. R., 7 Oh. Div. 591; Angelí & A. Corp. 346, § 312; 20 N. J. Eq. 122; 50 Barbour, 167; 144 Mass. 545; 40 Geo. 582; 23 Howard, 381; 21 Md. 50; 65 Me. 43.</p>

<p> Bill in Equity by Attaching Creditor,for Injunction against Prior Attachment Proceeding as Fraudxtlent. </p> <p>1. Injunction by attaching creditor, against prior attachment as fraudulent. — A plaintiff in attachment at law may maintain a bill in equity to enjoin and set aside proceedings under a former attachment, on the ground that they are collusive in the interest of the debtor, and that the alleged debt is simulated. Such attachment is void as against creditors, who may be thereby hindered, delayed or defrauded (Code, § 1735), and is an attempt to dispose of property fraudulently (§ 3544), against which a creditor without a lien is entitled to equitable relief.</p> <p>2. Intervention of creditor as party, by petition or motion. — In an attachment case at iaw, another creditor can not intervene by petition, and be made a party to the suit, in order that he may attack the proceedings on the ground of fraud, or fraudulent collusion between the attaching creditor and the debtor.</p> <p>3. Allegations of bill; sufficiency of. — An allegation that the debt of the attaching creditor “is simulated,” is the averment of a fact, and not of a legal conclusion; and an averment that “only a small sum, the amount of which is unknown to complainant,” is in fact due, is sufficiently specific and definite.</p> <p>4. Sheriff as party. — The sheriff, having possession of property on which he has levied an attachment, may be joined as a defendant to a bill filed by a creditor, which seeks to enjoin and set aside the attachment proceedings on the ground of fraud.</p> <p>5. Misjoinder of parties; who may object. — When a person is improperly joined as a defendant to a bill, but does not object to the misjoinder, no other defendant can take advantage of it.</p> <p>6. Dissolution of injunction on answer. — When the answer fails to meet and deny the material allegations of the bill with fullness, precision, and particularity of statement, as to facts within the respondent’s personal knowledge, it is not sufficient to justify a dissolution of the injunction.</p>

Tried before the Hon. ¥m. E. Clarke. This action was brought by Joseph EL Compton against Joseph M. Hankins, and was commenced on the 22d August, 1888. The original complaint contained two counts, and two other counts were added by amendment.

Tried before the Hon. Ti-ios. M. Arrington. This action was brought by Schloss & Kahn, merchants and partners- in trade, doing business in the city of Montgomery, against Mrs. Mattie J. Bice, as administratrix of the estate of her deceased husband, Dan. S. Bice; and was. commenced on the 28th January, 1889.

Tried before the Hon. Joira B. Tally. This action was brought by Mrs. Mary Austin, formerly the widow of Martin Ashburn, deceased, and Robert T. Ashburn and others, children and heirs at law of said decedent, against Greene Willis; and sought to recover the possession of a tract óf land containing about 200 acres, which was particularly described in the declaration, and which belonged to said Martin Ashburn at the time of his death, some time during the year 1863.

Heard before the Hon. War. H. Simpson. The bill in this - case was filed -on the 29th May, 1889, by William Young, against Robert P. Baker and his wife, and Mrs. Mary E. Ludwig; and sought to enforce a vendor’s lien on. a tract of land, which Mrs. Ludwig had sold and conveyed to said Baker. The complainant claimed to be the owner of two of the notes given for the purchase-money, by assignment for valuable consideration; and he annexed them as exhibits to the bill.

Heard before the Hon. Thomas Cobbs. Bill in equity of L. B. Musgrove and J. O. Musgrove, against the New Orleans & Alabama Coal & Mining Company, and Ered. Sloss as trustee, to enforce- a vendor’s lien on land for a balance of purchase-money alleged to be due and unpaid; cross-bill for rescission of contract, on ground of misrepresentation of material facts.

Tried before the Hon. W. H. Simpson. This action was brought by Zeb .Berry, against the town of New Decatur, a municipal corporation organized under the general statutes in 1887; and was commenced on the 14th May, 1889.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 31st October, 1889, by Amos G. Tuttle, against J. A. Bullock and his wife, Mrs. Annie J. Bullock; and sought the rescission of a contract, by which the complainant sold to said Bullock a small tract of land in Macon county, executing a conveyance to Mrs. Bullock, and accepted in part payment of the agreed price, at the estimated value of $700, a conveyance of an undivided half interest in a- tract…

Tried before the Lion. John B. Tally. This action was brought 'by Sam. Henry and James F. Henry, suing as partners, against William Powell, to recover several mules, oxen, cows, &c., particularly described; and was commenced on the 31st January, 1887. The plaintiffs executed the necessary bonds, and obtained the possession of the property.

Heard before the Hon. Wm. H. Simpson. The bill in this case was filed on the 30th March, 1889, by Mrs. Lucille A. Tallman and her husband, against G. B. Oréndorfl and the Decatur Land, Improvement and Furnace Company, a domestic corporation; and sought the rescission of a contract by which complainants purchased from said Orendorff two town lots in Decatur, or in the addition to the towm made by said defendant corporation.

Heard before' the Hon. Thomas Cobbs. The original bill in this case was filed on the 25th April, 1883, by Houston B. Lansden and others, children and heirs of Mrs. Martha W. Lansden, deceased, against Hugh P. Bone; and sought to have a certain conveyance of land, which Mrs. Lansden and her husband (Abner JD.

Tried before the Hon. Henry C. Speake. This action was brought by Boycl & Boyd, suing as surviving partners, against Bailey & Watkins as partners, E. L. Bowers and W. O. Bowers; and was commenced on the 18th December, 1888.

<p>Appeal from the Chancery Court of Cherokee.</p> <p>Heard before the Hon. S. K. MoSpadden,</p>

Heard before the Hon. S. K. MoSpadden. The bill in this case was filed on the 28th January, 1889, by Benjamin F. West, suing as guardian of William F. Johnson, a lunatic, against Mrs. Mary West and her husband, John H. West; and sought partition of a tract of .land, which had descended to Mrs. West and saidW.

Tried before the Hon. James B.'Head. This action was brought by Oppenheimer, Strauss & Co., against' Louis L. Schwarz, and was' commenced' on' the 22d April, 1889. Tlie complaint contained only the common counts.

Heard before the Hon. Tiros. A. Street. In the matter of the estate of James Berry, deceased, on the application of A. J. McDonald, as administrator de bonisnon, for an order to sell lands for the payment of debts. On the hearing, the court refused to grant an order of sale, and dismissed the petition; and this decree is here assigned as. error. The opinion states all the material facts.

Tried before the Hon. Wit. E. Joi-inston. This' was a quasi-criminal prosecution for the violation of a municipal ordinance, instituted before the intendant of the town of Oxanna, against J. B. Allen, superintendent of the Anniston, Oxford and Oxanna Street Railway Company, a domestic corporation.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 1st May, 1888, by Mrs. Sarah A Kennamer, the wife of S. W. Kennamer, against Fite, Porter & Co., a mercantile partnership doing business in Nashville, and others; and prayed relief as follows: (1) the cancellation of a mortgage on a parcel of land, as a cloud on the complainant’s title to an undivided half-interest therein jointly with her husband, who had executed the mortgage to said Fite, Porter &…

<p>Appeal from the Circuit Court of Colbert-</p> <p>Tried before the Hon. Henry C. Spkake.</p> <p>This action was brought by Alexander Brothers, a partnership composed of James E. Alexander, Percy Alexander, and Sydney J. Alexander, against Paul C. J ones; and was commenced by attachment, sued out on the 16th January, 1889, on the ground that the defendant had removed from the State, or had absconded, or secreted himself. The complaint claimed $200 “on an account for goods, wares and merchandise sold and delivered by plaintiffs to defendant during the year 1888.” At the trial term, no appearance having been entered for the defendant, the plaintiffs asked for judgment by default; but the court re fused to grant it, because amotion had been entered by J. B. Moore, as amicus curiae, to dismiss the suit for want of jurisdiction, on the ground that the debt sued on was contracted with plaintiffs by Alexander & Jones, a partnership composed of the defendant and said Sydney J. Alexander, one of the plaintiffs’ firm. On the trial of the motion, these facts were admitted; and it was also admitted that the partnership' of Alexander & Jones had been dissolved in December, 1888, before the commencement of this suit. The court sustained the motion to dismiss, and rendered judgment accordingly. The plaintiffs excepted to the rulings and judgment of the court, and now assign the same as error.</p> <p>cited Code, § 2605; Alexander Bros. v. King dsjOo., 87 Ala. 642; Hall v. Oooh, 69 Ala. 88 ; Duramms v. Harrison^ 26 Ala. 326; Laoy v. LeBruce, 6 Ala. 904; 7 How. Miss. 61; 2 Bates on Partnership, § 902.</p>

Heard before the Hon. Thomas Cobbs. This case was before this court at a former term, as shown; by the report in 85 AÍa. 37, where it is erroneously stated that, the chancellor, not only sustained the plea of non-claim, but; “ dismissed the bill.” The decree there appealed from is copied: in the opinion of the court, and shows that the bill was not, formally dismissed.

Tried before the Hon. B. F. Cassady. This was a motion by Isaac N. Towns, to set aside a sale of certain lands by the sheriff, under an execution against him in favor of E. D. Allen, at which sale Allen became the purchaser. On the evidence adduced, the court set aside the sale, and the sheriff’s deed to the purchaser; and this judgment is here assigned as error.

Tried before the Hon. Leroy E. Box. This action was brought by Hardy J. Horton, against J. F. Adams and Frank Nelson, Jr., to recover damages for the alleged unlawful seizure of two cows, the property of the plaintiff, and was commenced in a justice’s court on the 14th February, 1887. Service was acknowledged by Adams, and the summons was returned executed by him, as constable, on Nelson.

Tried before the Hon. War. H. Simpson. This action was brought by Nixon Brothers, suing as a partnership, against Mrs. S. M. Killian; and was commenced in a justice’s court, by attachment sued out on the '29th July, 1889, as dated in the transcript.

Tried before the Hon. Wm. IT. Stmpson. This action was brought by the Crescent Brewing Company* an Indiana corporation, against B. T. Handley, C. Petty, J. L. Krou, O. H. Albes, and P. J. Edwards; and was commenced on the 8th April, 1889.

Tried before the Hon. Wm. H. Simpson. This action was brought by the appellee, suing as a partnership, against James B. Allen, Mrs. Sarah B. Allen, his wife, and Robert L. Allen,, as late partners doing business under the firm name of the Southern Lumber Company; and was founded on the defendants’ promissory note for $155.35, dated August 36th, 1888, and payable to plaintiff sixty days after date.

Tried before the Hon. John B. Tally. The record in this case shows that, on the 19th March, 1887, a statutory action of detinue for a hog was* commenced in a justice’s court, by W. H. Armbrester against W. E.Snodgrass; that the cause was removed by the defendant, by appeal from the justice’s judgment, into the Circuit Court; that an order was entered in that court, November 16, 1887, referring the cause to H. H. Horton, T. L>.

Heard before the Hon. Thos. J. Taylor. The record in this case shows that, on the 11th March, 1889, a petition was filed in said court by James P. O’Keilly, as administrator of the estate of Susan K. Denty, deceased, asking an order to sell lands for the payment o± debts; that the court granted, the order of sale as prayed, on the 24th April, 1889, after statutory notice to the heirs; that the administrator reported the sale on May 20th, 1889, and asked an order of…

Heard before the Hon. Thomas Cobbs. The original bill in this case was filed on the 19th December, 188T, by Win.

Tried before the Hon. Wm. E. Clarice. Judgment in.favor of Tpnsmere& Craft against E. E. Buck-land, recovered May 11th, 1886; garnishment against the M. & O. Railroad Company, sued out March 8th, 1889; answer of garnishee, admitting indebtedness, filed May 11th, 1889 ; claim of exemption filed May 13th, 1889; and judgment discharging garnishee, as shown more fully by the former report of the case, 88 Ala. 312-18.

Heard before the Hon. Wm. H. Simpson. The bill in this case was filed on the 29th March, 1889, by C. C. Sheets, against W. F. Kirk and J. D. Snodgrass, and sought to enforce a vendor’s lien on land. The land had belonged to the complainant, and was by him sold and conveyed, in January, 1888, to S. M. Bains, W. D. Brown, and W. J. Robinson, who afterwards sold and conveyed to the defendants, taking their notes for the purchase-money.

Tried before Hon. H. A. Sharpe. This action was brought by W. W. Johnson, against the Alabama Gas, Fuel & Manufacturing Company, a corporation organized under the general statutes, to recover damages for the breach of a special contract, and was commenced on the 17th August, 1888. The complaint contained a special count on the contract, alleging a breach, and the common count for money had and received, claiming $500.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 28th August, 1888, by John O. Porter, against Patrick J. Collins; and sought the rescission of a contract, by which complainant bought from defendant one acre of a small tract of land, which was situated about lour miles from the town of Sheffield, and which was described in the defendant’s deed to the complainant as part of a ten-acre tract described by government numbers, and as being situated “ at…

<p> Action on Common Money Counts. </p> <p>1. Possession as evidence of ownership. — In an action by plaintiff against the administrators of the estate of her deceased father, to recover money which he had placed in her hands after his second marriage, “with the request that she divide it among her full brothers and sisters,” and which she returned to him on demand, after the lapse of three years, during which time she had claimed it as her own, taking no note or receipt for it, and making no demand for it during the succeeding five years of his 1 fe; a charge instructing the jury that, if her father put the money in her possession, “then her mere possession of it does not raise the presumption of ownership,” is not erroneous.</p> <p>2. Charge objectionable as general proposition, but not 'when applied to particular case; qualifying or explanatory charge. — A charge which states a legal proposition in language too broad to be a correct general principle, but which is correct when applied to the facts of the particular case, can not be considered erroneous, since the other party might ask á qualifying or explanatory charge.</p> <p>3. Declarations of person in possession. — The declarations of a person in possession of property, asserting title or ownership in himself, are competent evidence on the principle of res gestos; but not his declarations as to the source of his title or the manner in which he acquired the property.</p>

Application by petition in the name of the Mayor and City Council of Anniston, for a writ of certiorari, or other proper remedial writ, directed to Hon. Emmett E. Crook, the probate judge of Calhoun county, to procure a review by this court of certain proceedings had before him on habeas corpus at the instance of Mrs. L. Untreiner, which resulted in an order for her discharge from the custody of the town marshal of Anniston, under a charge for the violation of a municipal…

Tried before the Hon. H. A. Sharpe. The material facts in this case are stated in the opinion.

Tried before the Hon. Leroy E. Box. This action was brought by E. Solomon, against James F'. Thomas and James M. Hayes, and was commenced on the-14th May, 1885.

Tried before the lion. James B. Head. This action was brought by J. M. Stanley, against John IHlgore, and was commenced in a justice’s court, on the 29th October, 1889. The cause of action was an account for medical services rendered to defendant, during the month of April, 1888, by Dr. T. D. Monroe, amounting to $18.25; and the plaintiff sued as transferree of the account.

Tried before the TIon. B. F. Cassady. ■ Garnishment on judgment; claim of exemption, and contest thereof. On the evidence adduced, the court sustained the claim of exemption; and this judgment, to which the plaintiff excepted, is here assigned as error. cited Trimble v. Farris, 78 Ala. 260; Hall v. Gaperton, 87 Ala. 285 ; Strauss v. Meertiefj 64 Ala. 299 ; Hendricks v. Kelly, 64 Ala. 388; 70 Amer. Dec. 603; 11 Amer. St. 132; 5 Zb. 502; Giovanni v. Hat.

Clair. Tried before the Hon. Leroy F. Box. This action was brought by Handley, Reeves efe Co., a partnership, against W. W. Lawley and H. M. Abercrombie, individually, and as partners composing the firm of W. W. Lawley & Co.; and was founded on a promissory note for $370.84, to which the name of W. W. Lawley & Co. was signed, and which was payable to plaintiffs.

Tried, before the Hon. B. E. Cassady. This action was brought by Jere. Smith andR. N. Warnock, against R. N. Ingram, to recover rent for two months of a store-house in Anniston; and was commenced on the 1st February, 1890.

Tried before the Hon. James R. Dowdell. This action was brought by J. B. Roberts against the appellants, a partnership, and was commenced on the 5th August, 1889.

Tried before the lion. Leroy F. Box. Motion to enter satisfaction of a judgment, on the facts stated in the opinion of the court. The court below overruled the motion, and its judgment is here assigned as error. cited Turner v. Teague, 73 Ala. 554; Boykin v. Cook, 61 Ala. 472; Forev. McKenzie, 58 Ala. 113 ; Bland v. Bowie, 53 Ala. 152; Lovelace v. Webb, 62 Ala. 271; McCartney v. King, 25 Ala. 681.

Tried before the Hon. James B. Head. The appellant in this case, George Foust, recovered a judgment in a justice’s court, on the 4th March, 1886, against A. V. Fletcher and A. J. Fletcher, for $58; and an execution on this judgment was levied, December 5th, 1887, on 140 bushels of corn, which was claimed by D. W. Letson as his property.

Tried before the Hon. Henry C. Speake. This was a statutory trial of the right of property in and to ten shares of stock in the Sheffield & Tuscumbia Street Bail-way Company, between Bankin & Co., plaintiffs in execution against J. O. Boyleston, and Walter S. White as claimant. The transcript has not come to the hands of the reporter. The opinion states the material facts.

<p>Appeal from the City Court of Anniston, in equity.</p> <p>Heard before the Hon. B. F. Oassady.</p>

Tried before the Hon. John B. Tally. This action was brought by Mrs. Josephine Kinsey, a married woman, against J. T. Stout, to recover a mule colt, which the plaintiff claimed as belonging to her statutory estate, and which her husband had sold to the defendant; and was commenced in a justice’s court, on the 8th of February, 1887.

<p> Motion to ’Dismiss Appeal. </p> <p>I. Refusal to allow amendment.; when appeal lies, or mandamus. — On suggestion of the death of a sole plaintiff, if the court improperly refuses to allow an amendment making him sue as a mercantile partnership, reviving and continuing the case in the name of another person as surviving partner, and improperly makes an order abating the suit, mandamus would be the jn'oper remedy to compel the allowance of the amendment; but no order abating and dismissing the suit having been rendered, an appeal does not lie from the overruling of the motion to amend, revive and continue.</p>

Tried before the Hon. John Moore. Tins action was brought by the Hanover National Bank of New York, against J. C. Johnson & Co., a partnership composed of J. C. Johnson and R. L. Smith, and against the partners individually; and was commenced on the 17th September, 1887.

Tried before the ITon. II. A. Siiarpe. This action was brought by Joseph I). Crossthwait against J. A. Montgomery, was commenced on the 9th January, 1888, and was founded on the defendant’s indorsement of a promissory note for $3,000, which was dated at Birmingham, Ala., October 12th, 1887, and to which the name of Percy li. Smith c& Oo. was signed as maker.

From the City Court of Mobile. Tried before the Hon. O. J. Semjies. The defendant in this case, J ames Hammil, was indicted for the murder of John Maguire, by shooting him with a rifle; was convicted of murder in the first degree, and sentenced to the penitentiary for life.

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

From tlie Circuit Court of Madison. Tried before the Hon. Henry O. Speaice. The defendant in this case, Thomas Jackson, was indicted jointly with one Annie Fulcher, for the murder of William Youngblood, “by striking him with a stick;” was convicted of manslaughter in the first degree, and sentenced to the penitentiary for the term of eight years.

From the Criminal Court of Jefferson. Tried before the Hon. S. E. Greene. The defendant in this case, Joe Griffin, was indicted for the murder of William Garrett, by shooting him with a pistol; was convicted of murder in the first degree, and sentenced to death. The homicide was committed in September, 1889. On the trial, the prosecution offered to prove by one Alex.

From the Circuit Court of Marshall. Tried before the I-Ton. John B. Tally. The defendant in this case, James Martin, was indicted for the murder of Lewis Bullard, “by striking him on the head with a rock;” was convicted of manslaughter in the first degree, and sentenced to the penitentiary for the term of five years. The defendant was a negro boy about fourteen years old, his exact age being disputed; and the deceased was a negro boy about seventeen years old.

From the Circuit Court of Colbert. Tried before the Hon. Henry O. Speake.

Erom the Circuit Court of Tallapoosa. Tried before the Hon. Jas.. R. Dowdelia The indictment in this case charged that the defendant, Jere Walls, “unlawfully and with malice aforethought did assault W. I).

From the City Court of Anniston. Tried before the Hon. B. F. Cassady. Indictment against Bartow Wims, charging an assault on Sterling Newsom with intent to murder him. Plea, not guilty. Verdict of guilty, and sentence to penitentiary for the term of ten years.

From the Circuit Court of Jackson. Tried before the Hon. John B. Tally. The indictment, in the case charged that the defendant, Sampson Reese, “ unlawfully and with malice aforethought killed a man whose name is to this grand jury unknown, by shooting him with a gun.

From the City Court of Mobile. Tried before the Hon. O. J. Semmes. Indictment against Joseph Jones, a negro, for an assault with intent to commit a rape on the person of Mrs. Pritchard. The substance of the evidence is stated in the opinion of the court.

From tbe Circuit Court of Marshall. Tried before the Hon. John B. Tally. The indictment in this case charged that the defendant, W. Gr.

<p> Indictment for Selling Liquor without License. </p> <p>1. Selling liquor in quantity less than a quart. — A conviction can not be had for' selling liquor in'less quantity than a quart (Code, § 4036), on proof oí a single sale of three pint bottles of beer, at the aggregate price of fifty cents, the price of a single bottle being twenty cents.</p>

From the Criminal Court of Jefferson. Tried before the Hon. S. E. Greene. The indictment in this case charged, in the first count, that the defendant carried a pistol concealed about his person; and in the second count, that he carried a bowie-knife, or other knife or instrument of like kind or description. On the trial, a jury was waived, and the case was submitted to the decision of the court.

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

<p> Indictment for Selling Liquor without License. </p> <p>1. ' Sale of imported liquors in original packages. — The act of Congress approved August 8th, 1890, removing the restrictions imposed by congressional regulations of commerce upon State legislation in regard to the sale of imported liquors without a license (U. S. Statutes, 1889-90, p. 318), does not require new legislation on thé subject, but gives full force and effect to existing statutes; and it applies to all imported liquors subsequently sold in the original packages, whether imported before or after its passage.</p> <p>2. Same; burden of proof as to time of importation. — If said act of Congress could be construed as applicable only to liquors imported after its passage, the onus would be on the defendant, when prosecuted for a subsequent sale without license, to show that the liquor sold by him was in fact imported before the passage of the act of Congress.</p>

<p> Indictment for Seduction. </p> <p>1. Seduction under promise of marriage. — To authorize a conviction for seduction under promise of marriage (Code, § 4015), the promise or engagement of marriage must be the moving cause of the subsequent illicit intercourse — they must stand to each other in the relation of cause to effect; and proof of the promise and of subsequent criminal intercourse does not necessarily make out the offense.</p> <p>2. Evidence corroborating prosecutrix. — The statute expressly provides that “a conviction shall not be had on the uncorroborated testimony of the woman and the corroborative evidence is not sufficient, unless it is in a matter material to the issue, tends to connect the defendant with that material matter, and satisfies the jury that the woman has sworn truly.</p> <p>3. Evidence as to preparations for marriage. — A sister of the prosecutrix can not testily, on the part of the State, that the prosecutrix '“got a dress made ready for the marriage,” unless some act or knowledge on the past of the defendant is shown connecting him with the procurement of the dress as a bridal costume.</p> <p>4 Evidence impeaching witness. — A note written by a witness is not admissible as evidence for the purpose of impeaching his testimony on the stand, unless his attention has been first called to it, thereby .giving him-an opportunity to explain it.</p>

From the Circuit Court of Jackson. Tried before the Hon. John B. Tally. The indictment in this case charged, in the' general words of the statute, that the defendant played at a game with cards, at a public house, public place, &c., “or at an out-house where people resort.” The defendant pleaded not guilty, without objection to the indictment, and issue was joined on that plea.

<p> Indictment for Selling Liquor without License. </p> <p>1. Judicial knowledge of liquors; sale of lager-beer as violation of local prohibitory tew. — Lager-beer, as the court judicially knows, is á malt liquor, containing alcohol produced by fermentation, and is not within the terms of a local law prohibiting the sale of “ vinous or spirituous liquors,” unless it is shown that such liquors had been mixed with it; and a statement in the admitted facts, “ that said lager-beer contained spirit, or alcohol, in sufficient quantity to intoxicate,” does not show such admixture.</p>

From the Circuit Court of Choctaw. Tried before the Hon. Wm. E. Clarke.

From the Circuit Court of Cleburne. Tried before the Hon. Leroy F. Bos. The indictment in this case charged that the defendant, Samuel C. Zaner, “unlawfully and intentionally, but without malice, killed Walter D. Bell, by shooting him with a pistol.” The homicide occurred about dark, on the evening of January 8th, 1890, in the town of Heflin, in said county.