Volume 91 — Alabama Reports

<p>From the Circuit Court of Tallapoosa.</p> <p>Tried before the Hon. Jas. R. Dowdell.</p>

From the Circuit Court of DeKalb. Tried before the Hon. John B. Tally. The defendants in these two cases, Jesse Keith and Frank Rion (or Ryan), were each indicted and convicted of selling whiskey without a license, in violation of a local prohibitory law. Each of the indictments was returned into court on the 5th August, 1S90, during a regular term of the court; and on each was indorsed the name of Jesse Slone, as foreman of the grand jury.

From the Circuit Court of Talladega. Tried before the Hon. Leroy F. Box. The indictment in this case charged that the defendant, Sam. Stitt, “unlawfully and intentionally, but without malice, killed Richard Oliver, by shooting him with a pistol.” The trial resulted in a verdict of guilty of manslaughter in the first degree, with sentence to imprisonment in the penitentiary for the term of six years.

<p> Indictment for Selling Liquor without License. </p> <p>I. Sufficiency of indictment.; selling or giving liquor. — An indictment in the general form allowed by the statute, charging that the defendant solid, vinous or spirituous liquors without a license and contrary to law (Code, § 4037), is sufficient to cover a sale in violation “of any special or local law regulating or prohibiting the sale” of such liquors; but not the giving away of such liquors, although it maybe prohibited by such special law.</p>

From the City Court of Anniston, Tried before the Hon. B. F. Oassady. Indictment for retailing liquor without license, and contrary to law. Motion to quash, and plea in abatement, on. account of defects in grand jury. Motion overruled, and demurrer sustained to plea.

From tlie Circuit Court of DeKalb. Tried before the Hon. John B. Tally. The defendant in this case was indicted for the larceny of $487.00 in money, the bills being particularly described, and alleged to be the personal property of Anthony B. Green.

From the Circuit Court of Covington. Tried before the Hon. John V. Hubbard. The indictment in this case charged,, in the first count, that the defendant played at a game with cards, &c., at a tavern, “ or in a public highway, or some other public place and in the second count, that he bet at a ghme so played.

From the City Court of Anniston. Tried before the Hon. B. F. Cassady. ■The indictment in this case charged, “that W. P. O’Brien, whose Christian name is to the grand jury unknown, sold spirituous, vinous, or malt liquors, without a license and contrary to law.” The record does not show that any demurrer, or other objection, was interposed to the indictment; and the judgment-entry recites that the defendant pleaded not guilty.

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

<p> Indictment for Aiding Prisoner to Escape from Jail. </p> <p>1. Sufficiency of indictment. — An indictment which charges that the defendant “did aid or assist” two named prisoners to escape from the jail in which they were confined on a charge felony, by unlocking- or opening a door, or breaking or opening a window, in one of the rooms (Code, § 4002), must aver that the act was done with the intent to facilitate the escape of said prisoners, and must aver or show that it was useful for that purpose, as by an averment that it was a door or window of the room in which they were confined.</p>

From tlie Criminal Court of Jefferson. Tried before the lion. Samuel E. Greene.

From the Oireuit Court- of Butler. Tried before the Hon. John B. Hitubard. The defendant in this case, Pleas Fonville, a negro, was indicted for an assault on J. C. Comer, a white man, with the intent to murder him ; was convicted, and sentenced to the penitentiary for two years.

From the Circuit Court of Autauga. Tried before the Hon. Jas. R. Dowdell. The defendant in this case, Robert- 8. Brassell, was indicted for a rape on Georgie Buckner, a girl about fifteen years of age, who was his niece, was convicted, and sentenced to the penitentiary for life.

From the Circuit Court of Covington. Tried before the Hon. John P. Hubbard. The indictment in this case charged, that tlie defendant, Edward Brantley, “sold spirituous, vinous, or malt liquors, without- a license, and contrary to law;” and the bill of exceptions states, that tlie prosecution was founded on a “ local law in Covington county relating to the sale of liquors, &c., in Sess.

<p> Scire Facias against Bail on Forfeited Recognizance. </p> <p>1. Circuit clerk acting after resignation. — When a circuit clerk has resigned, but continues to discharge the duties oí the office until his successor is appointed and enters on the duties of the office, he is regarded as an officer cle facto, and his official acts are valid and binding so far as the rights of the public, or of third persons having an interest therein, are concerned.</p> <p>2. Default of principal after appearance. — Bail are not discharged from liability,'because their principal duly appeared, was arraigned, entered upon his trial, and continued to appear from day to day until the jury retired to consider of their verdict, when it is further shown. that he fled before the jury returned a verdict, and that he had never been surrendered or taken into the custody of the sheriff.</p>

<p>From the Circuit. Court of Barbour.</p> <p>Tried before the Hon. Jesse M. Carmichael.</p> <p>cited Code, § 4366; Wolfv. State, 41 Ala. 412; Lewis v. State, 35 Ala. 387-8; People v. Bush, 4 Hill, N. Y. 133; State v. Hughes, 76 Mo. 323; Reg. v. Johnson, 1 L. & C. Cr. Cases, 489.</p>

<p> Indictment for Assault and Battenj. </p> <p>1. Judgment of acquittal, as evidence, in another case. — In a criminal prosecution against a police officer, for an assault and battery on a person whom he arrested, the judgment of the municipal court, acquitting the prosecutor, is not admissible as evidence.</p> <p>2. Authority of police officer in making arrest. — A iiolice officer, in arresting a person who is drunk and disorderly, or who is threatening a breach of the peace, may lawfully use so much force as seems to be necessary to effect the arrest with safety to himself, or to another person who is assisting him; and when prosecuted for an assault and battery on the person arrested, it is a question for the jury whether he used more force than was reasonably necessary under the circumstances.</p>

From the Circuit Court of Butler. Tried before the Hou. John P. FIurbard. The defendant in this case was indicted for the larceny of a mule, was convicted, and sentenced to the penitentiary for the term of four years. The bill of exceptions purports to set out all the evidence introduced on the trial, and shows that the only exception reserved by the defendant was to the refusal of the general charge, asked by him in writing.

From the Circuit Court of Henry. Tried before the Hon. Jesse M. Carmichael. The indictment in this case charged, that the defendant bet at a game played with cards in a public house, or in a public place.

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

From the Circuit Court of Crenshaw. Tried before the Hon. John P. Hubbard. The defendants in this case, Ben. and Sam. Gibson, brothers, were .jointly indicted and tried for the murder of John Smith, by shooting him with a pistol, or by cutting him with a knife.

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

From tlie Circuit Court of Hale. Tried before the Hon. John Moore. The defendant in this case, Tom Walker, a negro, was indicted for the murder of William Cottrell, another negro, by shooting him with a pistol; ivas convicted of murder in the-first degree, and sentenced to death; but, since the affirmanceof the judgment by this court, his sentence has been commuted to imprisonment- for life.

From the Criminal Court of Jefferson. Tried before the Hon. Saji. E. Greene. The defendant in this ease, Henry Perry, was indicted for the murder of his wife, “by choking or strangling her, or by striking her with a stick, rock or stone, or with some blunt weapon or instrument to the grand jury unknown;” was convicted of murder in the first degree, and sentenced to death.

From the Circuit Court of Bibb. Tried before the Hon. Jas. R. Dowdell. The prosecution in this case was commenced by a warrant of arrest issued by the judge of the County Court, on the 12th of February, 1884, and returnable on the 3d March, 1884, which was founded on an affidavit, or complaint, made by Richard Bradley, accusing Larkin Benson and Mary Duke of living together in adultery or fornication.

From the City Court of Mobile. Tried before the Hon. O. J. Semmes.

<p> Indictment for Belling or Giving Liquor to Minor. </p> <p>1. ■ Sale, barter, exchange, gift, and loan, defined and distinguished.</p> <p>2. Selling or giving liquor to minor. — On a prosecution for selling or •giving liquor to a minor (Code, § 4038), who testified that he applied for some whiskey to the defendant, who refused to sell him any, saying that he had none for sale, being a practicing physician; that he then borrowed a pint of whiskey from the defendant; and that a few days afterwards, as defendant’s wagon was going to the city in which he bought his goods, “not having any whiskey on hand to return that which he had borrowed, he handed the defendant some money, and requested him to buy as much whiskey as he had borrowed, and in that way returned what he had borrowedHeld, that the court erred in instructing the jury that these facts showed a violation of the statute, since the transaction, if made in good faith, was neither a sale nor a gift; but, the question of intent (or good faith) being involved, and the subsequent payment of money, as affecting the intention and .good faith of the parties, being a question for the jury, held, also, that a general affirmative charge in favor of the defendant was properly refused.</p> <p>3. Same; minors relieved of disabilities of non-age. — The statute which prohibits the sale or gift of liquors to a minor (Code, § 4038), does not contain any exception in favor of minors who have been relieved of the disabilities of infancy by a decree in chancery, nor does such de-cree relieve the seller from his criminal liability.</p>

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

From the Oily Court of Mobile. Tried before the lion. O. J. Semmes. The defendant in this case, Frank Lundy, was indicted lor the murder of Elias Farnell, was convicted of murder in the second degree, and sentenced to the penitentiary for the term of ten years.

From the Criminal Court of Jefferson. Tried before the ITon. Sam. E. Greene. The defendant in this case, Emma Cotten, was indicted for the murder ot Henry Harris, “by stabbing or cutting him with a knife; ” was convicted of murder in the first degree, and sentenced to the penitentiary for life.

From the City Court of Mobile. Tried before the Hon. O. J. Semmes.

Appear from the City Court of Mobile. Tried before the Hon. O. J. Semmes. This action was brought by Wallace (not William) G. Hall, a minor, suing by his next friend, against the Louisville & Nashville Railroad Company, to recover damages for personal injuries sustained by plaintiff while in defendant’s employment as a brakeman; and was commenced on the 28th February, 1888.

Tried before the Hon. B. E. Oassady. Action by Percy Olmstead againt Samuel B. Brewer, a justice of the peace, and the sureties on his official bond, on the facts stated in the opinion of the court. The court below sustained a demurrer to .the complaint, and, the plaintiff declining to amend, rendered judgment for the defendants; and this judgment is now assigned as error.

Tried before Hon. J. A. W. Smith, as special judge. This action was brought by C. A. Thompson against Percy Olmstead and others; was commenced on the 12th September, 188!), and was founded on a penal bond executed by the defendants, the condition of which was in these words: “ Whereas a writ of attachment, issued by S. B. Brewer, a justice of the peace in and for Calhoun county, Alabama, at the suit of C. A. Thompson, against the estate of the above bound Percy Olmstead,…

Tried before J. A. W. Smith, as special judge. This action was brought by Percy Olmstead, against O. A. Thompson and J. D. Thompson, and was commenced on the 11th January, 1888. The complaint 'claimed damages for an alleged trespass by the defendants in forcibly entering plaintiff’s dwelling-house, ejecting him and his family, and re moving their furniture.

Tried before the Hon. -Wm. E. Clarke. This action was brought by Daniel P. Marcy and others, heirs of Peter Marcy, deceased, against William L. Howard, to-recover damages for alleged trespasses bjr the defendant on a large tract of land, cutting down pine trees, &c.; and was commenced on the 13th April, 1887.

Tried before the Hon. Wm. E. Clarke. This action was brought by Craft & Co., the successors in business to Tousmere & Cralt, suing as partners, against Hettie White; and was commenced in a justice’s court, on the 27th November, 1887. The cause of action before the justice was described as “ain’t bill, bal. $98.20and the complaint filed in the Circuit Court on appeal, which contained only the common counts, each claimed that sum as due December 1st, 1884.

Tried before the Hon. John P. Hubbard. This action was brought by Mrs. E. O. Hayes against W. D. Westcott, to recover certain articles of personal property, particularly described in the complaint; and was commenced on the 20th of April, 3 8SÍ).

Heard before the Hon. Wm. H. Tayloe. The bill in this case was filed on the 30th April, 1890, by William Dolan and others, as heirs at law and next of kin of Thomas Dolan, deceased, against his widow, Mrs. Mary Dolan, individually and as administratrix, and against James Dolan, her son by a former marriage; and sought to remove the settlement- of said estate into the Chancery Court, and to enjoin further proceedings in the Probate Court, on the petition of the administratrix…

Heard before the Hon. Thos. W. Coleman. The bill in this case was tiled on the 17tli August, 1885,. by Mrs. Medora Mathews, one of the heirs at law and next of kin of George W. Mathews, deceased, against Mrs. Rebecca E. Forniss (formerly Mathews) and others ; and sought to vacate and set aside the probate of the last will and testament of said George W. Mathews, which bad been probated, on proof by the subscribing witnesses, and without contest, on the 20th September, 1880.

Heard before the Hon. Thomas W. Coleman. The bill in this case was filed on the 8th April, 1889, by Richardson D. Brice, against Charles Spies, and was in the nature of a bill for specific performance; seeking to procure the legal title to a tract of land, which the complainant purchased, in June, 1875, from Josephine and Florillus Nicholson, and of which he was then put in possession, paying part of the purchase-money, but which was afterwards conveyed by them, at his…

Tried before the Hon. John P. Hubbard. This action was brought by Henry Waldman, against the appellee, a foreign corporation; and was founded • on a policy of insurance against fire, which the plaintiff had effected with the defendant on certain personal property particularly described, for $1,200. The policy was date'd July 15th, Í887,. and was for the term of one year.

Tried before the Hon. O. J. Semmes. This action was brought by Hettie White against Marshall P. Levy, and was commenced on the 21st January, 1890. The* complaint contained lour counts, each of which claimed $1,000 as damages for the breach of an “agreement,” a “contract,” or a “covenant,” as it is termed in the different counts, for the lease of a dwelling-house by plaintiff to defendant, for the term of one year, commencing on the 22d October, 1888.

Heard before the Hon. Tnos. W. Coleman. The bill in this case was filed on the 1st August, 1889, by Mollie Bell, against Thos. -1. Price, in the nature of a bill for specific performance; and sought to obtain the legal title to a small parcel of land, containing one acre, which the complainant alleged she had bought, from Alex.

Tried before the Hon. Thos. M. Arrington. This action was brought by IT. A. Jones, against W. T. Williams, to recover four mules, with damages for their detention; and was commenced on the 24th January, 1889. The rulings of the court on the pleadings and evidence, and the general charge in favor of the defendant, given on request, are assigned as error. The opinion states all the material facts.

<p> Bill in Equity by Judgment Creditors, for Discovery and Belief. </p> <p>1. Bill for discovery by judgment creditors; aji/iointment of rerei.rer after ansmer filed. — When several judgment creditors, having executions returned unsatisfied, unite in a bill for the discovery and subjection of assets belonging to their debtor (Code, §§ :>545-48), and the answer discloses assets subject to the payment of their debts, they may have a receiver appointed to tafee charge of the property, and enjoin the defendant from interfering with it; but, if t he answer further alleges or shows that- all of the property is incumbered by mortgages and prior liens to more than its full value, and it is not contradicted or impeached on oral examination of the debtor, a receiver (■¡in not be appointed except on affidavit of facts showing a necessity, as under file general rules of chancery practice.</p>

Heard before the Hon. Tiros. Cobbs. The bill in this case was filed on the 17th March, 1886, by Frank Steele, against A. B. Hanna; and sought to redeem a tract of land, which had been sold under execution against the complainant, and bought by the defendant. The sale was made on the 1st December, 1884, the amount of the purchaser’s bid being $135.20.

Heard before the Hon. Tnos. W. Coleman. The bill in this case was filed on the lith of November,.' 1887, by Merrill E. Pratt, against William G. Nixon and wife,, and a foreign corporation called the Dundee Mortgage ancl Trust Investment Company, Limited, of Scotland; and sought to foreclose a mortgage on a barge tract of land, which said Nixon and wife had executed to the complainant, and to have two former mortgages, which they had executed to said foreign corporation,…

Heard before the Hon. A. G. Smith, as special chancellor. The bill in this case was filed on the 13th September, 1887, by Mrs. Florence IT.

Heard before the lion. John A. Foster. The original bill in this case was filed on the 29th January, 1883, by Waldo P. Wilson, only surviving… Held: on the second appeal, that the sale by the administrator was void, leaving the legal title in the devisees, it appeared that they were necessary parties to the bill, on the facts then shown by the record; and they were again made defendants, though their names had been struck out, on demurrer, as defendants to the original bill.

Tried before the Hon. Wm. E. Clarke. The appellee in this case, Mrs. Marcia LI. Turner, commenced •an action by summons and complaint, on the 28th November, 1887, against Blount Sossaman; and on the 22d December, 18S7, in aid of that action, having made the statutory affidavit (Code, § 2967), sued out a garnishment against the Mobile Street Railway Company, as the debtor of said Sossaman.

Tried before the Hon. John P. Hubbard. In the matter of the assessment of taxes against the State Bank, a corporation organized under the laws of Alabama in January, 1885, on notice issued to it by the County Board of Bevenue, to appear and show cause why the assessment against it, as returned by the county assessor, 'should not be increased from $37,000 to $100,000.

Tried before the Hon. John P. Hubbard. This action was brought by the Louis Snider’s Sons’ Company, a corporation created under the laws of Ohio, against D. S. Troy, and was commenced on the 15th February, 1890.

Heard before the Hon. A. H. Benners, as special chancellor. Held: that the complainants were not entitled to contribution from May,, on account of moneys paid on the judgment in favor of the county, because, by the terms of the compromise, they had disabled themselves to proceed against Britton, their principal; (2) that they were entitled to contribution on account of the money paid in…

Tried before the Hon. Leroy F. Box. This action was brought by Marion countv, against John O. Gamp and others, was commenced on the 4th March, 1890, and was founded on a penal bond, which was conditioned for the faithful performance by said Gamp of a contract for the building of a court-house, entered into between him and the plaintiff. The complaint set out the condition of the bond,, and assigned breaches; claiming $500 -as damages, and for each breach $100 or $150.

Heard before the Hon. Tiios. M. Arrington. The original bill in this case was filed on the 25th January, 1888, by Mrs. Bridget O’Connor, a married woman, the wife of John O’Connor, against her two brothers, James McHugh and Michael McHugh; and sought, principally, 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 complainant and her husband were in’ possession.

Tried before the Hon. John P. Hubbard. This action was brought by John Glenn, suing as trustee under appointment by the Chancery Court of Richmond, Virginia, against Henry C. Semple, as a stockholder in the Nation Express & Transportation Company, a corporation chartered under the law's of Virginia, in December, 1865 ; was coinmenced on the 19th November, 1886, and sought to enforce the payment of fifty per cent, of defendant’s alleged subscription to the capital stock of…

Heard before the Hon. John A. Foster. The bill in this case was filed on the 29th April, 1887, by Martin Connor, against Charles Armstrong, as the executor of the last will and testament of his deceased wife, Mrs. Olemmie Armstrong, and their children as devisees under her will.

Tried before the Hon. Jona. Haralson. This action was brought by C. L. Howard against the defendant railroad company, to recover damages for an alleged breach of contract of employment, and was commenced on the 19th August, 1889. The court sustained a demurrer to the ■second and third counts of the complaint, and the plaintiff thereupon took a nonsuit. The judgment on demurrer is here assigned as error.

<p> Action against Common Carrier for Lost Goods. </p> <p>1. Declaration of agent, as evidence against principal. — The declaration of q, depot-agent, made in response to plaintiff’s inquiry for his goods, that they were burned up in a car a few nights previously, is not admissible as evidence against his principal, the railroad company, when sued for the loss of the goods.</p> <p>2. Error in admission of evidence, not cured by other evidence. — The admission of illegal evidence, against objection, can not be held to have worked no injury, because other evidence is afterwards adduced from which the jury might have inferred the existence of the fact sought to be proved.</p> <p>Oral evidence of fads shovn by v'rit'ing. — Plaintiff suing a common carrier for lost goods' consigned to him, which he had never seen, can not testify as to their quantity and value, as shown by the invoice, without producing the paper, or accounting for its absence.</p>

Heard before the Hon. John A. Foster. The original bill in this case was filed on the 25th January, 1888, by Mrs. E. C. Turner (a married woman), Carrie Smith, and Jolm Smith, against their sister, Mrs. Ella McQueen, and her husband, Thomas McQueen; and sought the sale of a tract of land for partition, on the ground that it could not be equitably divided without a sale.

Tried before the Hon. Price Williams. In the matter of the probate of a paper purporting to he the last will and testament of William Otis, deceased, which, was propounded for probate by Charles M. Bancroft, who ivas therein named as executor, and ivas contested by William Otis and others, heirs at- law and next of kin of the decedent.

Heard before the Hon. Thos. Cobbs. The bill in this case was filed on the 6th September, 1887, by Felix E. Jackson and Frank Jackson, as administrators of the estate of Aristides E. Jackson, deceased, against Mrs. Elizabeth Jackson, who was the widow,of said intestate; and sought to establish complainants’ right to a sum of money, which Mrs. Jackson had deposited with Jackson Brothers, a partnership composed of said Felix E. Jackson and another, and to enjoin an action at…

Tried before Hon. Wh. E. Clarke. This action was brought by W. M. Tilley against T. J. Harrison, to recover damages for the breach of a written contract, and was commenced on the 6th September, 1889. The contract was dated October 1st, 1888, and was for the employment of D. A. Tilley, plaintiff’s adopted son, who was a minor, as clerk in the defendant’s store, for the term of twelve months, at a salary of $50 per month, payable monthly.

Tried before the Hon. John P. Hubbard. These two actions were brought by John B. Nicrosi, as the administrator of the estate of Mrs. Jeannette Giuly, deceased, against Eugene Phillipi; one being an action of unlawful detainer, to recover a certain house and lot in the city of Montgomery, which belonged to Mrs. Giuly at the time of her death, and of which the defendant was then in possession as tenant; and the other to recover for the use and occupation of the premises, from…

<p>Appeal from the Chancery Court of Lowndes.</p> <p>Heard before the Hon. John A. Foster.</p> <p>cited McKinstry v. Conly, 12 Ala. 678 ; Connell v. Woodruff 77 N.'Y. 203; Judge v. Wilkins, 19 Ala. 765 ; Wood v. (draft, 85 Ala. 260; Stouts v. House, 84 Ala. 309; McMillan v. Jewett, 85 Ala. 476; Jones on Mortgages, §§ 711-12; Pom. Equity, § 1204.</p> <p>cited Crews v. Threadgill, 35 Ala. 344; Turnipseed v. Cunningham, 16 Ala. 501; Wells v. Morrow, 38 Ala. 125; Mitchell v. Wellman, 80 Ala. 16; Goodman v■ Pledger, 14 Ala. 114; Wilkinson v. Turner, 72 Ala. 365.</p>

Tried by the Hon. John P. Hubbard. This action was brought by Wilson Beck, against J. W. West & Co., tobacco merchants doing business in Lynchburg, Virginia, to recover damages i'or the breach of a special contract, by which defendants employed plaintiff as a travellingsalesman, from the 1st October, 1887, to the 1st January, 1888; and was commenced on the 2d January, 1888.

Tried before the Hon. John P. Hubbard. This action was brought by John Glenn, suing as trustee under appointment by the Chancery Court of Richmond, Virginia, against Wm. T. Hatchett, as surviving partner of the late firm of Metcalf & Hatchett; and was commenced on the 14th December, 1886.

Tried before the Hon. John P. Hubbard. This action was brought by Joseph M. Hutchason, against Geo. II. Patrick, to recover the possession of a tract of land particularly described in the complaint, with damages for its detention ; and was commenced on the 9th March, 1888. The defendant, on the 24th January, 1889, interposed a special plea puis darrein continuance, to which a demurrer was sustained; and the judgment on the demurrer is now assigned as error.

Heard before the Hon. Tiros. M. Arrington. The bill in this case was filed on the 21st March, 1890, by Gerson <t Winter, late partners, against J. F. Darden, J. Ñ. Mitchell, and O. A. Mitchell; and sought to enforce a vendor’s lien on a tract of land, which the Mitchells had sold to said Darden. The complainants were the assignees of the two notes given lor the purchase-money, and claimed that they were unpaid.

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

<p>Appeal from the Probate Court of Pike.</p> <p>Heard before the Hou. Wit. J. Hilliard.</p>

Tried by the Lion. Jesse M. Carmichael. • This was a statutory trial of the right of property in and to a stock of goods, between Waxelbaum & Son, plaintiffs-in attachment against Bell & Stallings, a mercantile partnership doing business in the town of Ozark, and Mrs. S. A. Bell as claimant, who was the mother of one of the partners of said firm, and the mother-in-law of the other.

Tried before the Hon. John P. Hubbard. This action was brought by W. J. Martinez, as the administrator of the estate of E. P. Martinez, deceased, against the partners composing the firm of Lindsey & Gay, to recover the possession of a tract of land particularly described in the complaint ; and was commenced on the 13th August, 1888.

Tried before Hon. Jesse M. Carmichael. This action was brought by the New England Mortgage Security Company, a corporation chartered under the laws of Connecticut, against D. W. Ingram and his wife, to recover the possession of a large tract of land; and was commenced on the 3d of March, 1890. The plaintiff claimed the land under a mortgage executed to it by the defendants, which was dated December 21,1886, and duly acknowledged on the 1th of January, 1887.

<p>Action against Railroad Company as Common Carrier, for Injuries to Live-Stock Transported.</p> <p>1. Transportation of live-stock by railroad; duty andliability of carrier. In the transportation of live-stock by railroad, the carrier assumes the same responsibility for the safe carriage and delivery of the animals as in the carriage of other kinds of property, except for injuries resulting from their nature, habits, propensities, &c.; and he may, by special stipulation, contract for just and reasonable exemptions from other mm sual risks incident to the service, limiting his liability to injuries resulting from the negligence of his own servants and agents.</p> <p>2. F.remptions in. special contract; 'when enuring to benefit of connecting carrier. — When live-stock, or other freight, is received by a carrier for transportation over its own road, limiting its liability by special exemptions, a connecting carrier, receiving the property at the terminus of Ihe first road, can not claim the benefit of these exemptions for injuries happening on its own road; but, when the receiving carrier contracts for the through transportation of the freight over conned ing lines to its destination, or, by authority of the connecting lines, fixes the compensation for the entire transportation, the special exemptions of the contract enure to their benefit, unless otherwise expressly limited; and also when the receiving carrier, while limiting its liability to its own road, contracts -also for its “connecting lines,” and it is declared that the exemptions shall enure to the benefit of the connecting lines, “unless they shall otherwise stipulate” on receiving the goods.</p> <p>8. Bill of lading signed by shipper without, reacting it. — In the absence of fraud or mistake, a bill of lading containing special stipulations, signed by the shipper, is conclusive as to the terms of the contract; and he. can not invalidate it by showing that he signed it without reading it, and that his animals were, already on the cars.</p> <p>4. Burden of proof as to cause of injury.■ — When the plaintiff has shown injury to one of his mules'while in the custody of the carrier, the onus is on the carrier to show that it did not result from any negligence on the part of his servants or agents, or that it was within one of the specified exceptions in the. bill of lading.</p> <p>5. Furnishing unsafe car for transportation of 1 ire-stock. — If the carrier furnishes an unsafe and unsuitable car for the transportation of livestock, this is negligence; and a recital in the bill of lading that the shipper examined the car, and found it safe and suitable, does not operate as an estoppel, but only imposes on him the burden of proving that it was unsafe, or unsuitable.</p> <p>O. Charge as to sufficiency of evidence on question of burden of proof as to negligence. — When the carrier has adduced evidence rebutting the pri m a facie presum pt.ion of negligence, which arises from the proof of injury while the goods are still in his possession, but the rebutting evidence consists of the oral testimony of witnesses, the sufficiency and credibility of vvhich are matters for the determination of the jury, a charge which asserts that the burden of proof is thereby shifted to the plaintiff, is properly refused, because calcirlated toiconfuse and mislead the jury.</p> <p>7. Stipulation as to notice of injury before removal of live-stock. — In a bill of lading for the transportation of live-stock by railroad, a stipulation requiring notice of injury before the removal of the animals at the place of delivery, is generally held to lie a reasonable regulation, especially when the shipper accompanies the stock, or agrees to accompany and care for them; but such stipulation is not strictly construed against the shipper, being intended to prevent frauds against the carrier; and it is sufficient if the notice is given within a reasonably short time after the delivery and removal of the animals, as determined by the jury.</p> <p>8. Stipulation limiting value oflire-stock in cuse of injury.- — In a bill of lading for the transportation of a car-load of mules by railroad, a stipulation limiting the carrier’s liability, in the event of injury, to $100 for a mule, is just and reasonable, especially when the shipper agrees to accompany and care for the animals, and is allowed reduced' rates on that account.</p> <p>9. Stipulation by shipper to accompany and care for live-stock. — Whem a contract for the transportation of live-stock by railroad contains an express stipulation by the shipper, in consideration of reduced rates,, that he will accompany and care for them, and his failure to do so-proximately contributes to an injury to them, the carrier is not responsible.</p>

Tried before the Hon. Jesse M. Carmichael. This action was brought by John.A. Suddoth, against Williarn F. Dudley, and was commenced on the 15th March, 1888. The action was founded on the defendant’s two promissory notes, for $500 each, which were executed in Columbus, Georgia, payable on-the 25th December, 1886, and 1887, respectively, payable tó W. E. Venable or bearer, and by him assgned to the plaintiff.

Tried before the Hon. H. D. Clayton, as special judge. This was a motion by R. K. Carlisle, to vacate and set aside a judgment recovered against him, at a‘former term of the court, by M. N. Killebrew, for a tract of land “which was described in the complaint, verdict and judgment, as Fraction 12, a part of the S. E. ¿ and N. E. -£, sec. 16, T. 4,R. 4, containing 34.75 acres.” On thé evidence adduced, which it is unnecessary to state, the court overruled and refused the…

Tried before the Hon. John Moore. This action was brought by Ignatius Poliak, against J. W. Echols, to recover a house and lot in Tuskegee, particularly described in the complaint; and was commenced on the 22d of February, 1890. W. P. Caldwell, the landlord of Echols, intervened, and defended the suit on His own title.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 12th September, 1882, .by Mrs. Jane Andrews and her sisters, all being married women, against their brother, James A. Burke, his wife and children ; and sought to establish and enforce a resulting trust in a tract of land, which had been bought by their mother, Mrs. Jane J. Burke, and afterwards conveyed by her to said James A. Burke in trust for his wife and children, on the ground that the…

Tried before the Hon. Jesse M. Oarjvjiciiael. This action was brought by the appellant, a corporation chartered under the laws of Virginia, against Nathan Hall; and was commenced on the 22d February, 1887. The complaint contained counts on several promissory notes, to which the name of Hall & Mobley, as a partnership, was signed, alleging that the defendant was one of the partners; and the ■common counts were added.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 31st December, 1887, by Junius Griffith and the heirs at law of Jere Griffith, deceased, against the administrator and heirs at law of Thomas Yentress, deceased, and was in the nature of a bill for specific performance, seeking a divestiture of-the legal title to a tract of land out of the defendants, and a decree vesting it in complainants; and it also prayed an injunction of a judgment in…

Heard before the Hon. John A. Foster. The original bill in this case was filed on the 17th December, 1888, by W. F. Vandiver & Co., a mercantile partnership in Montgomery, against R. E. Bolling & Son, Lehman, Durr & Co., Goetter, Weil & Co., J. E. Latham, and others; and sought principally to have a receiver appointed to take possession of certain mules and horses, crops of cotton and corn, on which complainants held a mortgage executed to them by said Latham, and on which…

Tried before the Hon. John P. Hub bard. This action was brought by W. W. Stanton, against the L. & N. Railroad Company, to recover damages, as alleged in the first count of the complaint, “for the destruction and injury of a certain mare, buggy and harness, the property of plaintiff, caused by reason of the negligence and omissions of duty of defendant’s agents of servants by wrongfully obstructing the public road crossing over defendant’s railroad, and running another one…

Tried before the Hon. Jesse M. Carmichael. This action was brought by A. A. Cobb, against Malone & Collins as partners, to recover damages for an alleged conversion by them of a bale of cotton, on which plaintiff claimed a statutory lien for advances to make a crop; and was commenced on the 8th October, 1887.

Heard before the Hon. John P. Hubbard. The record in this case shows these facts : In a prosecution for bastardy instituted against John W. E. Kelly, he failed to appear at the trial term of the Circuit Court, to which the case had been removed, and thereupon a conditional judgment was rendered against him and the sureties on his bond; and this judgment, for $500, was made final on the 20th September, 18S0.

Tried before the Hon. Jesse M. Carmichael. This action was brought by the appellants, a mercantile partnership doing business in Atlanta, Georgia, to recover damages of the defendant, a coiqioration operating a railroad between Opelika and Goodwater, for an alleged breach of contract (or duty)-in delivering to one Caldwell, at Goodwater, twenty-five barrels of whiskey shipped by plaintiffs 1'rom Atlanta over the defendant’s road, without requiring and collecting from him…

<p>Certiorari to County Commissioners, in matter of Increased Assessment for Taxation.</p> <p>1. Appearance as waiver of notice. — A. person whose assessment of property for taxation has been increased by the Commissioners Court at its August term (Code, § 512; Sess. Acts 1886-7, p. 10, §13), can not complain that he did not have legal notice of the proceeding, when orders of the court show that it was twice continued at his instance.</p>

Tried before the Hon. James R. Dowdell. This action was brought by R. J. Trammell against T. Y. Connor, to recover a yoke of oxen, with damages for their detention ; and was commenced on the 27th May, 1890. The case was submitted to the court for decision, on an agreed statement of facts, as follows : “Plaintiff owns a steam saw-mill, and a yoke of oxen ; the mill being a portable one, and located in Macon county for nearly three years.

Tried before tbe Hon. Jesse M. Carmichael. This action was brought by John F. Harmon, against C. M. McRae, Ignatius Poliak, and H. Fleming, to recover damages for an alleged trespass in making a wrongful levy on a stock of goods; and was commenced on the 3d January, 1888.

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

Tried before the Hon. James R. Dowdell. This action was brought by James L. Goree, against W. W. 'Wadsworth, to recover a tract of land particularly described in the complaint, with damages for its detention; and was commenced on the 17th December, 1888: The plaintiff claimed the land under a conveyance from L. G. Cousins and others, children and heirs at law of Moses G. Cousins, deceased: and he produced their deed of conveyance, which was dated the 9th February, 1887, and…

<p>Appeal from the Chancery Court of Elmore.</p> <p>Heard before the Hon. S. K. McSpadden.</p>

Court of Montgomery. Tried before the Hon. John.P. Hubbard. This action was brought by James R. Stewart, against the-appellant corporation, to recover damages for personal injuries sustained by him while attempting to get on board of a train of cars at Perry’s Mills, a station on defendant’s road, about twelve or fifteen miles below Montgomery.

Tried before the Hon. John P. Hubbard. This action was brought by Mrs. Ida S. C. Walker, against A. M. Baldwin, surety on an attachment bond; and was commenced on the 30th March, 1888.

Tried before the Hon. H. A. Sharpe. This action was brought by Isaac T. Love against the appellant, a domestic corporation, to recover damages for personal injuries sustained by plaintiff while travelling as a passenger on the defendant’s road; and was commenced on the 8th June, 1887.

Tried before the Hon. David D. Smith, as special judge. This action was brought by Mrs. Jennie O. Walters, as administratrix of the estate of her deceased husband, Edward E. Walters, to recover damages for the injuries which caused his death while in the defendant’s service; and was commenced on the 3d March, 1888.

Tried before the Hon. James B. Head. This action was brought by James T. Holland, as administratrator of the estate of Columbus Jones, deceased, against the Tennessee Coal, Iron & Railroad Company, a corporation engaged in operating a furnace at Ensley, to recover damages for the alleged negligence of the defendant, which caused the death of the intestate, and was commenced on the 8th September, 1888.

Tried before the TIoii. Jesse M. Carmichael. This action was brought by E. A. & L. E. Smith, suing as a partnership, against the defendant corporation, to recover damages for injuries to goods while in defendant’s possession as a common carrier; and was commenced on the 18th September, 1886.

Tried before the Hon. John B. Tally. This action was brought by Herman Herzberg, against A. Ullman & Co., a partnership, to recover the .statutory penalty of double the annual rent, for the defendant’s failure and refusal to surrender the possession of certain leased premises, after notice or demand in writing.

Tried before the Hon. H. A. Sharpe. This action was brought by Mrs. Mary A. Lykes, against Louis L. Schwarz, and was commenced before a justice of the peace, on the 2d October, 1889.

Tried before the Hon. John B. Tally. This action was brought by W. 8. Tillison and the heirs at law of his deceased brother-, F. M. Tillison, against W. T. Ewing, to recover the possession of a quarter-section of land, with damages for its detention ; and was commenced on the 17th September, 1887.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on the 6th August, 1887, by the First National Bank of Tuskaloosa, as a judgment creditor of John S. Kennedy, against their said debtor and several of his sons and members of his family; and sought to subject to the satisfaction of complainant’s judgment a certain tract of land which had once belonged to said Kennedy, and the beneficial interest in which, as the bill alleged, was yet in him.

Tried before the Hon. James B. Head. This action was brought by J. J. Cahalan, against W. J. .Robinson, to recover the possession of a quarter-section of land, and was commenced on the 25th January, 1889.

Tried before the Hon. S. H. Sprott. This action was brought by O. O. Watson, against the appellant corporation, to discover damages for the killing of plaintiff’s mule; and was commenced on the 24th August, 1888. The mule was killed on the 28th February, 1888, and the fact that it was killed by one of defendant’s trains was not disputed; but the evidence was conflicting as to the circumstances attending the killing.

Tried before the Hon James B. Head. This action was brought by William E. Davis against the appellant corporation, to recover damages for personal injuries sustained by him while in the defendant’s service; - and was commenced on the 5thEebruary, 1889.

Tried before the Hon. James B. Head. This action was brought by H. B. Thompson, as the administrator of J. R Thomas, deceased, to recover damages for personal injuries received by said decedent while in defendant’s service, and which, as alleged, caused his death; and was commenced on tire 25th February, 1888.

Tried before the Hon. John B. Tally. This action was brought by B. R. Williams, against A. E. Fields and others, to recover damages for an alleged trespass; and was commenced on the 8th, January, 1889.

Tried before the Hon. H. A. Siiarpe. This action was brought by Frank Van Borries, against the Southern Suspender Company, as a corporation, and several other persons, to recover damages for an alleged trespass by the defendants upon a certain tract of land, particularly described, and for wrongfully taking therefrom certain goods and chattels, also particularly described; and was commenced on the 12th Mxrch, 1888.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 5th November, 1887, by Gustavus Legg, as administrator de bonis non of the estate of John W. Towns, deceased, against R. W. Woods and M. F. Rice, as administrators of the estate of Sampson Harden, deceased, who was the administrator in chief of skid Towns, said Rice being also one of the sureties on his administration bond; and sought to compel a settlement of said Harden’s administration on the…

Tried before the Hon. James B. Head. This action was brought by John S. Hissong, to recover damages for personal injuries sustained by him while in the defendant’s service; and was commenced on the 6th March, 1890. The injuries were received on the 24th November, 1889, while the plaintiff, who was a switchman, was attempting to couple two cars in the defendant’s jmrds at Birmingham; and they resulted in the amputation of one of his legs.

Appear from the Chancery Court of Walker. Heard before the Hon. Taos. Cobbs. The bill in this case was filed on the 28th November, 1888, by Benj.

Heard before the Hon. H. A. Sharpe. The bill (or petition) in this case was filed on the 22d July, 1S90, by W. T. Underwood and his wife, Mrs. Marinda B. Underwood, suing by her husband as next friend, with George L. Morris, and A. W. Smith as executor of the last will and testament. of J. R. Edwards, deceased, as stockholders in the corporation called the Mary Pratt Furnace Gompany, against Joseph B. Wolfe and his wife, the other stockholders; and sought a dissolution of…

Tried before the Hon. James B. Head. This action was brought by Simon Dinkelspiel, against Jos. S. Smith and others, to recover damages for an alleged trespass; and was commenced on the 15th February, 1889.

Heard before the Hon. Thos. Cobbs. The bill in this case was filed on the 1st August, 1887, by William Warren, Jr., against the Florence Land, Mining and Manufacturing Company, a private corporation, L. C. Hudson, and others; and sought to redeem a town lot in Florence, which had been sold under a mortgage executed by William Warren, Sr., and James S. Warren, and bought at the sale by said Hudson, who afterwards sold and conveyed, by quitclaim deed, to said corporation.

Heard before the Hon. Thomas Cobbs. The material facts of this case, as shown by the bill and exhibits, are these.

Tried before the Hon. Wm. H. Simpson. This action was brought by Horace Orr, as administrator of the estate of Henry Griffin, deceased, to recover damages for the wrongful and negligent acts of defendant and its servants, which, as alleged, caused the death of said Griffin while in the defendant’s service as a brakeman. The inj ury occurred on the 4th May, 1887, and the action was commenced on the 24th’ May.

<p>Action against Common Carrier, to recover Overcharge.</p> <p>1. Parol evidence varying bill of ladling. — A bill ot' lading, when executed and delivered, becomes the sole expositor of the terms of the contract between the parties, and its terms can not be varied by proof of a verbal agreement to allow or refund a rebate; but a modification of this principle gives effect to a general order published and posted by the carrier, allowing reduced rates for certain classes of freight to be used for particular purposes, directing the regular rates to be first paid, and promising to refund the overcharge on application.</p> <p>2. Reduced rates on freight used for industrial or manufacturing purposes. — The statute allows railroad companies to give special reduced rates to any person or corporation “ to aid in the development of any industrial enterprise in this State ” (Code, § 1161); and a railroad company, in the exercise of this powder, having published and posted notice of special rates for the transportation of coal “ used exclusively for manufacturing purposes.” a miller engaged in the business of making meal out of corn is entitled to claim the reduced rate on the coal used by him.</p>

Application by petition, in the name of Oehmig & Weihl as partners, for a mandamus to Hon. Thomas Cobbs, presiding in the Chancery Court of Jackson, requiring him to hear and determine a statutory claim suit, under the facts stated in the opinion.

Tried before the Hon. H. A. Sharpe. This action was brought by Goode Sampson, against the appellant corporation, to recover damages for the loss of his mule, which was killed, and injuries to his wagon atjdhe same time, caused by a collision with an engine and train of cars on the defendant’s track, at the intersection of two streets in the city of Birmingham, on the 25th November, 1888; and was commenced on the 3d December, 1888.

Tried before the Hon. War. H. Simpson. This was a petition by G. B. Simmons and others for the supersedeas of a summary execution, which had been issued against them on a forfeited forthcoming bond. An execution against said Simmons had been levied on three horses, and he thereupon executed the forthcoming bond, with the other petitioners as his sureties.

Heard before the Hon. Wm. H. Simpson. The bill in this case was filed on the 3d January, 1890, by Geo.

Tried before the Hon. H. A. Sharpe. This action was brought by George Lunsford, against Samnel G. Painter, W. J. Vann, and John M. Thompson, to recover damages for the breach of a written contract in the form of a penal bond, which is set out in the opinion of the court; and was commenced oil the 4th January, 1888. The assignments of error embrace rulings of the court below on the pleadings and evidence, charges given, and refusal of charges asked.

<p>Action on Penal Bond, Assigning Breaches.</p> <p>1. Bond for removal of cause into Federal court; damages on breach. Under a bond given on'the removal of a cause from a State court into a United States court (24 U. S. Stat. at large, 552, ch. 373; 25 lb. 433, ch. 866), conditioned that the party asking the removal “shall enter in said Circuit Court of the United States, on the first day of the next term thereof, a copy of the record in said suit, and shall pay all costs that may be awarded by said court, if said court shall hold that said suit was wrongfully or improperly removed,” the amount specified as the penalty is not to be regarded as liquidated damages, but the obligors are only bound for the damages actually resulting from a breach; yet proof of failure to file the record, without more, entitles the plaintiff to nominal damages at least.</p>

Tried before the Hon. John B. Tally. This is the second appeal in this case.- — -88 Ala. 491. The action was brought by W. M. Sublett, against J. W. Hodges and J. S. Bain, and was commenced on the 26th September, 1884. The complaint contained only the common counts, each claiming $193, alleged to be due by account from defendants to plaintiff in September, 1883, and a like sum for work and labor done, and for goods sold and delivered.

Heard before the Hon. Walter H. Matthews. In the matter of the allotment of statutory exemptions, real and personal, to Mrs. Roanna Thompson, as the widow of Allen Thompson, deceased, and her two minor children, which was contested by Robert L. Thompson and others, the children of said Allen Thompson by a former wife, from whom he had obtained a decree of divorce in Arkansas.

Heard before the Hon. Wm. H. Simpson. The bill in this case was filed on the 81st July, 1889, by E. R Seward, against O. W. Joseph and M. B. Jones; and ■sought to enforce a vendor’s lien on two town lots in Decatur, which complainant had sold and conveyed to the defendants, for the unpaid purchase-money due on the note last falling due.

<p>Appeal from the Circuit Court of Marshall.</p> <p>Tried before the Hon. John B. Tally.</p>

<p>Appeal from the City Court of Anniston.</p> <p>Heard before the Hon. B. F. Cassady.</p> <p>cited Williams v. Roe, 59 Ala. 629; Hurt v. Freeman, 63 Ala. 335.</p>

<p>Statutory Proceedings by Corporation, for Gondemnation of Right of Way for Railroad.</p> <p>1. Sufficiency of petition. — A private corporation, organized for mining, quarrying or manufacturing purposes, has the statutory power of acquiring by condemnation a right of way through the lands of any person, for the construction of a railroad between terminal points mentioned in the statute (Code, § 1563); but, when it seeks to exercise this power of condemnation, its petition must specify the terminal points desired to be connected.</p> <p>2. Same; description of lands sought to be condemned. — The petition must also describe the land sought to be condemned, with the same certainty and precision as in a conveyance, so that a surveyor could locate it; and where it is only described as “a strip or parcel of land one hundred feet wide', fifty feet on each side of the track or road-bed of said company when built, one thousand yards in length, more or less, and containing seven acres, more or less, in and on the following lanás,” namely, the half of a quarter-section, it is demurrable for uncertainty and indgfiniteness.</p> <p>3. Right of corporation to take land, as question of law or fact. Whether the corporation making the application has the statutory power to condemn a right of way for railroad purposes, is a question of law for the court to decide, and not a question of fact for the Jury.</p> <p>4. Judgment of condemnation. — A judgment that the corporation recover of the owner of the land “a railroad right of way over the following lands,” describing by number the quarter-section, “of fifty feet in width on each side of the center of the road-bed of a railroad to be located over said land, upon payment of $49,” the damages assessed by the jury (Code, § 3212), is irregular, unauthorized, and void for uncertainty.</p>

Tried before the Hon. John B. Tally. This action was brought by Isaac P. Moragne, against the White Star Line Steamboat Company, a private corporation, to recover a tract or parcel of land in Gadsden, particularly described in the complaint, with damages for its detention; and was commenced on the 29th August, 1887. The plaintiff died pending the suit, and it was revived and prosecuted in the name of his administratrix. The only plea was, not guilty.

<p>Appeal from the Probate Court of Calhoun.</p> <p>Heard before the Hon. Emmett F. Crook.</p>

Tried before the Hon. John B. Tally. This action was brought by E. R- Davis, against the appellant railroad company, to recover the possession of a small strip of land, containing about three acres; and was commenced on the 29th September, 1887.

Heard before the Hon. W. H. Simpson. The bill in this case was filed on the 28th June, 1889, by John F. Scott, against Mrs. Mary W. Gotten, the wife of Samuel R. Gotten; and sought to foreclose a mortgage on a stock of goods which the complainant had sold to Mrs Cotten, taking the mortgage as security, and, as recited therein, her two notes, for the balance of purchase-money unpaid. .

Heard before the Hon. B. E. Cassady. The bill in this case was filed on the 23d June, 1887, by J. L. Wikle, against Mrs. S. F. McGraw and her husband, D. D. McGraw; and sought the specific performance of a contract for the sale and conveyance of a tract of land by them to him.

Tried before the Hon. James R. Dowdell. This action was brought by Thos. H. Williams, against the-defendant railroad corporation, to recover damages for the-death of his minor son, Robert. L. Williams, who was killed ■while in j¡he defendant’s service as a brakeman; and was commenced on the 6th February, 1888.

Tried before the Hon. B. F. Cassady. This action was brought by Clark Snow and his three married sisters, four of the seven surviving children of Dudley Snow, deceased, to recover their interest in a town lot in Oxford, with damages for its detention; and was commenced on the 4th September, 1889. S. L. Newsome intervened as the landlord of the tenant in possession, and pleaded not guilty and the statute of limitations of ten years; and issue was joined on these pleas.

Heard before the Hon. Wm. E. Clarke. In this case, a petition was hied on the 9th May, 1890, by Dick Roper, ex-sheriff of Mobile county, W. L. Holcombe, sheriff of said county, Whiting Ames, clerk of the Circuit Court, and John F. Powers, clerk of the City Court, asking a mandamus against S. Graham Stone, the county treasurer of Mobile, requiring him to pay certain claims held by the petitioners respectively, out of moneys in his hand belonging 'to the fine and forfeiture…