Volume 92 — Alabama Reports

Appear from the Circuit Court of Cherokee. Tried before the Hon. John B. Tarry. The appellant, Bill Tanner, was jointly indicted with William and James Smith, for an assault with intent to murder Larkin Reynolds and Bill Johnson. The indictment contained two counts. In the first count, the assault was alleged to have been directed against said Reynolds; and in the second count, the assault was said to have been directed against said Johnson.

From the Circuit Court of Butler. Tried before the Hon. John P. Hubbard. The appellant in this case, April Darby, was jointly indicted with O. R Odell, George Howard, Adam Knight and Sam Butler, for the murder of one Henry Walker, by shooting him with a pistol.

From the City Court of Montgomery. Tried before the lion. Thos. M. Arrington. The appellant was indicted and tried for the murder of one Monroe Walker, by shooting him with a pistol; and was convicted of manslaughter in the first degree. The evidence, as adduced on the trial, is sufficiently stated in the opinion.

From the Circuit- Court of Cherokee. Tried before the Hon. John B. Tarry. The appellant in this case, together with John Coheley, was indicted and tried for murder in the second degree, in killing one John J. Morelock ; and was convicted ior manslaughter in the first degree. The objections, which are raised here for the first time, as to the formation of the grand jury, are identical with those raised in the case of Tanner v. The State, supra.

From the City Court of Mobile. Tried before the Hon. O. J. Semmes. The appellant was-indie ted, tried and convicted for the murder of Lewis Lawson, by shooting him with a gun ; and was sentenced to the penitentiary for life. On the trial of the cause, as is shown by the bill of exceptions, the testimony introduced for the State showed that, on the 9th oí November, 1890, the deceased, one Lawson, a negro, was shot and killed by the defendant, another negro.

From the City Court of Decatur. Tried before the Hon. Wm. H. Simpson. The appellant, Millard Smith, was indicted, tried and convicted of an assault with intent to murder Christine Smith, his wife; and was sentenced to the penitentiary for ten years. The testimony for the State tended to show that, on one occasion, while the defendant was out fishing in a pond with his wife and three children, he made the boat capsize.

From the City Court of Montgomery. Tried before the Hon. Thos. M. Arrington. The appellant, Nancy E. H. Newton, was indicted and tried for an assault with intent to murder one John Jackson; was convicted of an assault and battery, and fined $500.

From the Circuit Court of Escambia. Tried before the Hon. John P. Hubbard. The appellant in this case, Wade Potter, was indicted, tried and convicted of burglary. The jury returned a verdict of guilty on the first count, which is set out in the opinion. There was a motion made in arrest of judgment, which was overruled by the court. The grounds of said motion are sufficiently set out in the opinion of this court.

From the Circuit Court of Colbert. Tried before the Hon. Henry 0. Speake. The appellant, William Pruitt, was indicted, tried and convicted of burglary, for breaking into the dwelling-house of one J. C. Giddens, and taking therefrom a pistol and other articles of value.

From the City Court of Montgomery. Tried before the Hon. Thos. M. Arrington. The defendant in this case. Cedar Reynolds, was indicted, tried and convicted for the larceny of certain described money.

From the Circuit Court of Bike. Tried before lion. John B. Hubbard. The appellant, Dock Chatham, was indicted, tried and convicted for larceny from a store-house.

From the Criminal Court of Pike. Tried before Hon. Wm. L. Parks.

<p>From the Circuit Court of -Bullock.</p> <p>Tried before the Hon. Jesse M. Carmichael.</p> <p>cited State v. Murphy, 6 Ala. 845; State v. Newman, 7 Ala. 69; Winter v. Seisson, 20 Ala. 39; Mose v. State, 36 Ala. 211; Joe v. State, 38 Ala. 422; Turberville v. State, 40 Ala. 715; Buehannan v. State, 55 Ala. 154; MoAdory v. State, 62 Ala. 154.</p> <p>cited Lundy v. State, 91 Ala. 10Ó; Whatley v. State, 91 Ala. 108; L. <& N. R. R. Go. v. Hall, 87 Ala. 708; McKleroy v. State, 77 Ala. 95; Gooden v. State, 55 Ala. 176.</p>

<p>From the Circuit Court of Cherokee.</p> <p>Tried before the Hon. John B. TALi/y.</p>

<p>From the County Court of Shelby.</p> <p>Tried before the Hon. R. W. Cobb.</p>

From the Circuit Court of Jackson. Tried before the Hon. John B. Tally. The appellant in this case, Mineen!. D. Ladd, was indicted, tried and convicted for carrying a pistol concealed about his person.

From the Criminal Court of Jefferson. Tried before the 'Hon. Saji. E. Greene. The defendant, Sam Dodd, was tried and convicted for carrying a pistol concealed about his person. The prosecution was commenced by. an affidavit made by Annie Randall before a magistrate, and the trial from which this appeal is prosecuted, was had before the Criminal Court of Jefferson county, without the intervention of a jury.

From the City Court of Anniston. Tried before the Hon. B. F. Cassady. The defendant, Percy Olmstead, was indicted, tried and convicted for selling spirituous, vinous or malt liquors, without a license, and contrary to law. The facts of the case, and the rulings of the court, are shown in the opinion.

From the City Court of Anuiston. Tried before the Hon. B. F. Oassady. The appellant in this case, R. B. Perkins, was indicted, tried, and convicted of selling spirituous, vinous or malt liquors, without a license, and contrary to law. The indorsement on the indictment showed that it was filed in open court on the 25th day of April, 1890.

From the Circuit Court of Geneva. Tried before the Hon. Jesse M. Carmichael. • The indictment under which the appellant was tried and convicted, charges that “Sam Salter, having a wife then living,, unlawfully married one Martha Grimes-” On the trial of the case, as is shown by the bill of exceptions, the State introduced as a witness the said Martha Grimes. The defendant asked her, if she was the wife of the defendant; to which she replied that she was.

From the County Court of Wilcox. Tried before the Hon. J. T. Beck. The appellant in this case, Dan Smith, was indicted, tried and convicted for living in .adultery with Martha McIntosh.

From the Circuit Court of Butler. Tried before the Hon. John P. Hubbard. The appellant, a negro man, was indicted, tried and convicted for living in a state of adultery with one Parthenia Grayson, a white woman; and was sentenced to the penitentiary for three years.

From the City Court- of Montgomery. Tried before the Hon. Thos. H. Arrington. The appellant in this case, Nora Stokes, was indicted, tried and convicted of the offense of being a night-walker. The indictment contained four counts. The first three counts charged her with being a vagrant, a common prostitute, and a common drunkard. The fourth count, and the only one upon which a conviction was asked, was in words as follows: “The grand jury . . further charge that . . .

From the Circuit Court of Jackson. Tried before the Hon. John B. Tarry. The appellant was indicted, tried and convicted for betting at cards at one of the places prohibited-by statute. The indictment ■ contained three counts, all of them alleginging substantially the same facts.

From the Criminal Court of Pike. Tried before the Hon. Wm.,11. Parks. The appellant in this case, Charles Winslow, was, as . is stated in the opinion, convicted under section 8757 of the Code. The prosecution was commenced by complaint made before a justice of the peace against the defendant by one Cornelia Hall.

From the Circuit Court of Henry. Tried before the Hon. Jesse M. Carmichael. The appellant, Richard Johnson, was indicted, tried and ■convicted for wilfully interrupting and disturbing a religious assembly. On the- trial, as is shown by the bill of exceptions, issue was joined on the plea of not guilty.

From the City Court of Montgomery. Tried before the Hon. Trios. M. Arrington. The appellant in this case, Willie Thomas, was indicted, tried and convicted for using abusive, insulting and obscene language in the presence of a female, in or near the dwelling-house of one J. G. Johnson.

From the City Court of Montgomery. Tried before the Hon. Thos. M„ Arrington. The appellant in this case, Jackson Bellinger, was indicted, tried and convicted for “unlawfully taking a mule of another, and using it temporarily without, the consent of the owner.” The evidence of Hison Weatherly corroborated the testimony of Ike Weatherly, which is set out in the opinion.

Appear from the Circuit Court of Cherokee. Tried before the Hon. John B. Tally. Upon the arrest of one Henry Wright, under an indictment against him for selling liquor without a license, the defendant, J. P. Matthews, at the request of said Wright, became his surety on his appearance bond, and the said Wright was discharged thereupon.

Tried before the Hon. Jas. B. Head. The appellant, C. E. Kuehlthau, was arrested on a chárge of bastardy, and, after examination before the justice of the peace, was bound over to the Circuit Court of Jefferson county. 'The case was placed on the trial docket of said Circuit Court, was called for trial and tried May 3d, 1890; and the jury returned a verdict in favor of the State.

The petitioner, Norris Cowert, was arrested, tried and convicted for the violation of an ordinance passed by the Mayor and Council of the town of Union Springs and adopted March 9,1891. This ordinance is copied in full in the opinion of this court. The said ordinance was passed under the supposed authority of an act of the General Assembly of Alabama approved February 18, 1891, and found on page 1169 of Sess. Acts of 1890-91. The title of this act is copied in the opinion.

This was an application for'a wrih of habeas corpus filed by the petitioner, Armstead Orawlin, to Hon. W. C. Bobertson, Judge of Probate of Lee county, asking for release from imprisonment on the charge of murder.

<p> Application for Mandamus to City Court. </p> <p>1. When mandamus lies. — Money taken from the possession of a person arrested on a criminal charge having been delivered by the arresting officer to the sheriff, upon whom a writ of garnishment was aftenvards served at the suit of an attaching creditor of the person arrested; the sheriff paid the money into court, and asked instructions as to what he should do with it, while the person arrested asked an order-for its restoration to himself, on the ground that it was taken from him illegally and by violence. This court overruled this motion, (1) for want of jurisdiction, and (2) because the facts alleged presented an issue for the decision of the jury on the trial of the attachment suit, which was still pending. Held, that this action of the court could not be reviewed by writ of mandamus from this court.</p> <p>2. Levy of attachment by fraud or trespass; garnishment' against sheriff, for money taken on search of prisoner. — Tlie levy of an attachment procured by trickery, fraud, or trespass, is invalid, and subjects the officer making it to an action for damages; but, by statutory provision (Code, § 2950), money in the hands of a sheriff, or other lawful officer, may be attached; and the provision applies to money which he has taken from the possession of a person arrested on a criminal chrage, and searched, if the money was connected with the offense charged, or might be used as evidence, or if he had probable grounds for believing so, and did not act in collusion with the creditor procuring the arrest.</p>

The proceedings in this cause were had upon an original application tiled in this court by the Alabama State Bar Association, in which the relator prays that a peremptory writ of mandamus issue from this court, to the Hon. Jas. B. Head, judge of the tenth judicial circuit, directing him to preside in, hear and determine the issues in a cause then pending in the Circuit Court of Jefferson county, in which the relator is plaintiff or complainant and one Peyton (1.

John P. Hubbard presiding, on the facts stated in the opinion. Agreements of counsel as to trial of causes have the same binding force as if made by the parties themselves; and the admission ot counsel, made to dispense with some formal iiroof at the trial are generally conclusive. 1 Brick. Dig-, p. 193, § 55 ; Starke v. Keenan, 11 Ala. 818; Rosenbaum v. State, 33 Ala. 354; Saltmarsh v. Bower, 34 Ala. 613; Young v. Wright, 1 Camp. 140.

Tried before the Hon. Jesse M. Carmichael. u This was an action brought by the State to recover for the breach of the official bond of the appellant, who was at that time, and had been for some time previous, Probate Judge of Barbour county; and was brought against the appellant and Amanda A. Ott. The breach consisted in not paying over to the State Treasurer certain moneys which had been collected by him as the State License Tax froTn retail liquor dealers.

<p> Bill in Equity for Foreclosure of Mortgage. </p> <p>1. Sufficiency'of allegation. — In a bill which seeks the foreclosure of a mortgage executed' by one John B. C., an averment that, prior to the execution of the mortgage, his sister, Mary U., “executed a deed to the said John £., purporting to convey to him all her right ánd interest in said lands, and complainant avers on information and. belief, and the advice of counsel, that said deed so executed by the said Mary C. did convey to the said John B. all the right, title and interest which she then had in said lands,” — is a sufficient averment as a fact, that Mary 0.-had conveyed by deed her interest in the lands to John B. (fix parte Reid, 50 Ala. 489, explained and limited.)</p> <p>2. Discretionary powers of tmstee. — Under a deed of gift by which the grantor conveys her iiiterest in lands to her brother, as trustee for his children, declaring that he “shall and may use and employ” the same “in such manner as may seem to him best, for the benefit and interest of said children, free from all restraint or control to be exercised by them or any of them, or by any other person; and should he deem it at any time advisable to sell or dispose of the estate herein conveyed to him, he is fully authorized to make such sale, and to reinvest the proceeds thereof, at his discretion, for the benefit of his said children, taking such transfer, titles and conveyances for’ any property so purchased, in his character of trustee, as may and shall effectually protect said property in favor of his said children, against the claims and demands of all persons growing out of his own individual debts and liabilitiesthe discretionary powers to use and sell are personal trusts, and can not be exercised by a succeeding trustee appointed by the register in chancery.</p> <p>3. Duration of trust estate. — Whenever a trust estate is created, a legal estate sufficient for the purposes of the trust will, if possible, be implied in the trustee, whatever may be the limitations of the instrument; and though a legal estate may be limited to the trustee and his heirs to the fullest extent, it will not be carried farther than the complete execution of the trust requires</p>

Clair. Heard before the lion. S. K McSpadden. The bill in this case was filed October 28, 1887, by the appellee corporation, a foreign corporation, against the appellants, Reuben Ginn and his wife; and prayed the foreclosure of a mortgage on certain lands, which was given by the defendants to the complainant to secure the re-payment of money borrowed by them from the said company, and which was executed on March 18, 188(5.

Heard before the Hon. John A. Foster. The facts which led up to the filing of the bill in this case, and those averred and disclosed upon the hearing of the cause are sufficiently stated in the opinion of this court. Upon final submission on the pleadings and proof, the Chancellor ordered a reference to be had before register to ascertain how much, if'anything, remained unpaid of the legacy to Mrs. Sallie A. Boyd from said Benj.

Appear from Chancery Court of Montgomery County. Heard before the Hon. John A. Foster. The appellee corporation originally filed this bill in the Chancery Court of Elmore County against the appellants; and the case was subsequently removed, by consent, to Montgomery County. The bill was filed on October 15, 1889.

Heard before the Hon. John A. Foster. The bill in this case was filed October 15, 1889, by the appellees, Seasongood, Menderson & Co., against the appellants, and seeks by the issuance of an equitable attachment against certain property specifically described in the bill, to collect a debt due them by Robert Y. Ware, Jr., an insolvent debtor.

Heard before the Hon. Wm. H. Tayloe. contended, (1) that the complainant must state in its bill every fact essential to its right to maintain the bill and to obtain the relief therein sought; and cited, Christian v. Amer. Freeh. Mortg. Co., 89 Ala. 198; Farrior v. New Eng. Mortg. Sec. Co., 88 Ala. 275; Jones v. Latham, 70 Ala. 167 ; Seals v. Robinson, 75 Ala. 368; Chandler v. Hanna, 73 Ala. 393; Duchworth v. Duchworth, 35 Ala. 70 ; 1 Dan. Chano. Prac. 361-372.

Heard before the Hon. S. K. McSpadden. The facts in this case are sufficiently stated in the opinion.

Appear from the Chancery Court of Lowndes. Heard before the Hon. John A. Foster. In May, 1883, James S. Farrior and Minnie E. Farrior, his wife, borrowed some money from the appellant loan company; and to secure the payment thereof, executed their joint notes and joint mortgage on certain lands, among which were included land belonging to the separate estate of the said Minnie E. Farrior.

Tried before the Hon. H. A. Sharpe. The principal fads, showing the point raised in this case, are sufficiently set forth in the opinion. The piano, the subject matter of the suit, was sold to one Mrs Richards under a contract, which specially stipulated that the title was to be retained in the plaintiff until all the deferred payments, secured by promissory notes, were met and liquidated.

Tried before the Hon. James B. Head. This action was brought by the appellee, Hannah Jacobs, as administratrix of the estate of Peter Jacobs, against the appellant corporation; and sought to recover damages for the alleged negligent killing of her intestate. The injuries which resulted in the death of plaintiff’s intestate, occurred at the crossing of the defendant’s track with the track of the Ensley Railway Company, which latter company is what is known as a dummy railroad.

Tried before the Hon. H. C. Speakb. A conductor on a railroad train can put off a passenger, who has no ticket and refuses to pay his fare, using no more force than is necessary, and is not bound to put him off at a station. — McClure v. P. W. c& B. R. R. Co., 34 Md. 532; Hofbauer v. D. á N. R. R. Co., 52 Iowa 342; Toledo W. c& W. R. R. Co. v. Wright, 68 Ind. 586; Indianapolis c&c., R. R. Co. v. Rinard, 46 Ind. 293; O'Brien v. Boston Railroad Co., 15 Cray 20; Hibbard v. Erie…

Tried before the Hon. John P. Hubbard. This action was brought by the appellee, C. P. Mallette, against the appellant railroad corporation; and sought to recover damages for injuries alleged to have been sustained and suffered by the plaintiff on account of the negligence of the defendant’s servants and emplovés. The complaint contained three counts.

Tried before the Hon. Jas. B. Head. This action was brought by I). W. Jones, against the appellant corporation, to recover damages for personal injuries alleged to have been inflicted by reason of the negligence of the defendant. There were three counts in. the complaint. The first count sought to recover on the ground that the injuries were caused by reason of defects in the condition of the-ways, works, machinery or plant connected with or used in the employ of defendant.

Tried before the Hon. James R. Dowdell. This action was brought by the appellee, James IT. Kornegay, against the appellant railway corporation; and sought to recover damages for personal injuries, alleged to have been sustained on account of the negligence of the defendant’s employes. Issue was joined on the plea of not guilty, and on the special plea of contributory negligence. All the facts attendant upon the accident are sufficiently set forth in the opinion.

Tried before tké Hon. H. A. Sx-iarpe. This action was brought by the' appellant, Kate J ames, as the administratrix of Will Roberts, deceased, against/the appellee corporation; and sought to recover damages for the killing of plaintiff’s intestate, which was alleged to have been caused by the negligence of tbe defendant. The cause was tried without tbe intervention of a jury, as authorized by statute, and judgment was rendered for one cent damages.

Tried before the Hon. H. A. Sharpe. This action was brought by the appellee, F. W. Smith, against the appellant corporation,, and sought to recover dam■ages for injuries suffered by the plaintiff, which were caused by the alleged negligence of the defendant. The uncontro verted facts are set out at length in the opinion of this •court.

Tried before the Hon. H. A Sharpe. This action was by the appellee, James B. Hawkins, against the appellant corporation, and sought to recover damages for personal injuries, alleged to have been sustained by reason of the negligence of the defendant.

Appkal from the Circuit Court of Etowah. Tried before the Hon. John B. Tally. This was a statutory action of ejectment, brought by the appellants against the appellee corporation; and sought to recover a certain strip of land described in the complaint. The evidence is set out at length in the opinion. In addition to the-evidence as found therein, the defendant introduced evidence tending to show that one Hill held the land for Gilliland, Howell & Cook, of South Carolina.

'Tried before the Hon. Jesse M. Carmichael. This action was brought by the appellant, Mrs. Mary H. Cogsbill, against the appellee corporation, and sought to recover the possession of a small strip of land, with damages for its detention.

Tried before the Hon. John B. Hubbard. This action was brought by the appellee, Rhoda V. Coskry, against, the Alabama Midland Railroad Company and the Alabama Terminal Upon the evidence as adduced, the defendants requested the general affirmative charge for the defendants collectively, and then the general affirmative charge for each one of them, separately. The court refused to give each, and the defendants duly excepted to each refusal.

Tried before the Hon. H. C. Sreake. This action was brought by the appellant, D. V. Sevier, against the appellee corporation; and sought to recover for professional services, as a physician and surgeon, rendered to an employé of the defendant railway company, who had his foot injured while he was in the discharge of his duties as a brakeman. Issue was joined on the general issue.

Tried before the Hon. IT. A. Siiarpe. This was an action by R. N. Lee, against the appellant railway corporation, to recover damages for the killing of two mules and the destruction of a wagon, the property of the plaintiff, which was caused by the alleged negligence of the defendant’s employes, in the management of a train, which collided with the plaintiff’s mules and wagon. The facts are sufficiently set out in the opinion.

Tried before the Hon. James B. Head. This action was brought by the appellee, Sarah E. Ralph, against the appellant railway company; and sought to recover damages for personal injuries, alleged to have been caused by the negligence of the defendant.

Tried before tlie Hon. John P. Hubbard. This action was brought by the appellee, John I).

Tried before the Hon. S. IT. Sprotx. This suit was brought by the appellee, Frank S. Moody, against the appellant railroad corporation; and sought to recover damages for the killing of a Galloway bull, the property of the plaintiff, which was alleged to have been caused by the negligence of the defendant in running its locomotive and train of cars. The defendant pleaded the general issue, and issue was joined thereon.

Tried before the Hon. War. E. Clarke. This action was brought by the appellee, John M. Ladd, against the appellant railroad company; and sought to recover damages for the alleged negligent killing of an ox, the property of the plaintiff. An account of the alleged negligence, as contained in the complaint, is set forth in the opinion; as are also the facts attending the accident.

Tried before the Hon. James B. Head. This action was brought by the appellee, Margaret A. Burt, against the appellant corporation, and sought to recover damages for personal injuries, alleged to have been sustained on account of the negligence of the defendant’s employés. The testimony for the plaintiff tended to show that she-boarded one of the defendant’s dummy trains in Birmingham;, that upon paying her fare, she told the conductor she wanted to get off at St. John’s…

Tried before the Hon. John B. Tally. This action was brought by the Mount Vernon Company, against the Alabama Great Southern Railroad Company; and sought to recover damages for failing to deliver certain cotton, alleged to have been delivered to the defendant for shipment. The facts are set out in full in the opinion of this court.

Tried before the Hon. H. A. Sharpe. This action was brought by the • appellee, Thos. F. Davis, against the appellant railway company, and sought to recover damages for personal injuries, alleged to have been caused by the negligence of the defendant in allowing a rock to project too far in one of the cuts on its road way. There were two counts in the complaint, and to each of these counts the defendant demurred, and its demurrer was overruled by the court.

Tried before the Hon. Leroy F. Box. The court erred in sustaining the demurrer to the complaint for non-joinder of proper parties plaintiff. — L. ds N. R. R. Co. v. Jones, 83 Ala. 376 ; Thrasher v. Ingram, 32 Ala. 645; Hair v. Avery, 28 Ala. 273 ; Chitty on Pleading, p. 83; R. E. Go. v. Stdlivan, 59 Ala. 272.

Tried before the Hon. H. A. Siiarpe. The facts are sufficiently set forth in the opinion. The case was tried without the intervention of a jury; and upon the evidence as adduced, the judge rendered judgment for the plaintiff’; and his ruling in this behalf is assigned as error on this appeal. cited J¡. I, V. db G. R. R. Go. v. Kennedy, 88 Ala. 462; L. da K. R. R. Go. v. Dooley, '78 Ala. 524; Gen. R. R. c& Bh.

Appeals from tbe City Court of Anniston. Tried before the Hon. B. F. Oassady. Both of these cases were submitted together. In the lower court they were each tried without the intervention of a jury, and the court rendered judgment for the defendant in each case; and on these appeals the judgment in each case is assigned as error. The facts are set forth at length in the opinion. cited O'Brien v. Tatum, 84 Ala. 186; It. It. Go. v. Arnold, 84 Ala. 159; liwy.

Tried before the Hon. B. F. Cassady. The defendant could not be held hable as a common carrier.' — C. c& W. R. R. Co. v. Ludden, 89 Ala. 612; Felton v. R. R. Co., 54 N. Y. 214; Butler v. R. R. Co., 9 Am. & Eng. R. R. Oases, 249. The court erred in sustaining the demurrer to defendant’s plea of the statute of limitations of one year. — Chambers v. Seay, 8T Ala. 558; Chambers v. Seay, 73 Ala. 379; Whilden v. Bank, Vol. 92, 64 Ala. 1; Frink v. Potter, 17 111. 406; 2 Am. & Eng.

Tried before the Hon. B. F. Oassady. This action was brought by 0. J. Cooper & Co., against the Georgia Pacific Bailway Company, to recover for failure to deliver one barrel of molasses. All the facts are set out in the opinion. The case being submitted to the court, without the intervention of a jury, he rendered judgment for the defendant. The plaintiffs appeal; and assign this judgment as error.

Heard before the Hon. W. B. DbLoaoh. In the matter of proceedings instituted by the Postal Telegraph Cable Company, a private corporation, by petition seeking to condemn for its own use and purposes a part of the right of way of the Alabama Great Southern Railroad Company.

Tried before the Hon. Henry C. Speake. This action was brought by Mrs. Sarah M. Bynum, the wife of O. H. Bynum, against the Memphis & Charleston… Held: managed and controlled by him as trustee, according to the terms and- provisions of section 2372 of the Revised Code of Alabama.” The evidence showed that 0. H. Bynum was still living, and had always had the management and control of the property, receiving and controlling the rents and profits as provided by the deed.

Heard before the Hon. H. A. Siiarpe. The bill in this case was field on the 8th day of- March, 1890, by the Mayor and Aldermen of the city of Birmingham, against Charles IT. Reed; and sought to enjoin and abate an obstruction in the streets of the city, as a public nuisance. The defendant demurred to the bill, assigning several grounds of demurrer; and the decree overruling his demurrers is now assigned as error. 1.

Arrear from the City Court of Anniston. Tried before the Hon. B. F. Cassady. This was an action, brought by the appellant against the appellee, a municipal corporation, and sought to recover damages for an injury to his ox, which resulted in the death of the ox; and which injury was caused by the alleged negligence of the city in not keeping its street in proper repair. The case was submitted to the court for decision, without the intervention of a jury.

Tried before the Hon. James B. Head. This suit was brought by the appellee, Maggie Lewis, against the Mayor and Aldermen of Birmingham; and sought to recover damages for personal injuries, which she claims to have sustained by reason of the negligence of the defendant in respect to the repair of a certain street. The defendant pleaded the general issue, and contributory negligence.

City Court of Birmingham, in equity. Heard before the Hon. H. A. Si-iaspe. 1. The complainant was charged with knowledge that the municipal charter and ordinances prohibited the erection of the frame building within the fire-limits. — Forth Birmingham St. JRwy. Oo. v. Galderwood, 89 Ala. 2471 Dillon Mun. Corp. (4th ed.), §§ 354-356. 2. The city had authority to establish fire-limits, and pass all laws necessary for the protection of said city against fires.

Heard before the Hon. Thomas M. Arrington. This appeal is prosecuted from a decree of a judge of the City Court denying to the appellant corporation a writ of mandamus to compel the appellee to remove and lower its pipes on certain streets in the city of Montgomery.

<p> Action by. Water Works Company against Municipal Corporation. </p> <p>1. Complaint in case and assumpsit. — Case and assumpsit can not be united in one complaint, either in the same count, or in separate counts; and when the complaint contains but a single count, the averments of which are partly in each form, and so framed that the court can not say with certainty which form of action was intended, a demurrer to it is properly sustained.</p> <p>2. Contract of city ■with water company construed, as to number of hydrants to be used and paid for. — Under the contract for the construction of a system of water "works in the city of Montgomery, between the city and A. H. Howland and his associates, whose rights and duties have now devolved on the Capital City Water Company, it was provided (1) “that the whole of said pipe system shall be such as to cover and supply all portions of the existing streets of the city, and place not less than two hundred hydrants thereon to be so located that said hydrants shall average 528 feet apart(2) that the city “shall pay the sum of $11,000 per annum, in monthly installments, for the use of all the hydrants located in the original pipe system herein provided for;” (3) “that the works herein provided for shall be'extended within a reasonable time after notice in writing by the city to said Howland and his associates that the city has located one hydrant on each tenth of a mile of said proposed extension, to be paid for at the annual rate of $55 per hydrant,” and to be located by the city. Held, that although the plan first proposed by the company to the ■city required only twenty miles of pipe to supply the two hundred hydrants as located, and the city required a route twenty-seven miles in length, but without changing the location of any of the hydrants, it was under no obligation to establish and locate an additional number of hydrants on account of the increase in the length of the route, and was not liable in any form of action for the failure to do so.</p> <p>3. City of Montgomery; power to contract for water works. — The sixth .section of the charter of the city of Montgomery confers the express power to “establish or purchase and maintain water works, or contract for the furnishing of water for fully supplying the city and its inhabitants with wholesome water, and to regulate the manner and rate of" furnishing water to private consumers;” and this grant of power must prevail against the provision contained in the ninth section, that the council “shall not contract any debt,” nor incur any liability in the name of tire city, “except such as shall be paid out of the ordinary current revenue collected in the year the debt or liability is contracted.”</p>

Tried by the Hon. John JL\ Hubbard. This action was brought by the appellee against the appellant ; and sought to recover for water furnished to the city, and to be used in sprinkling the streets. The suit was based on a contract entered into and created by an ordinance passed by the City Council. The contention of the plaintiff and the defense of the defendant are sufficiently shown in the opinion.

<p>Appeal from the Circuit Court of Montgomery.</p> <p>Tried before the Hon. John P. Hubbard.</p> <p>cited Code of 1886, §§ 451, sub-div. 8; 453, sub-div. 9 ; 478; State v. Bienville Water Co., 89 Ala. 323; 8 So. Rep. 54; 64 Ala. 269; 59 Ala. 551.</p>

Heard before the Hon. Tilos. W. Coleman. By virtue of Pearce’s power of attorney, the appellant became .the owner of Pearce’s stock as collateral security.— Winter v. Montgomery Light Co., 89 Ala. 544. A sufficieiit notice of this transfer was given to the Mobile Beal Estate Go., by appellant’s agent, to have authorized a transfer of the stock to appellant on the books of the Beal'Estate Co. — Code, § 1671; Fisher v. Jones, 82 Ala. 117. The Planters & Merchants Ins.

Appeals from the Chancery Court of Mobile. Pleard before the Hon. Tiros. W. Coleman. There are four appeals embraced in this one record — all involve similar questions, are included in one cause of action, and are decided by one decree of the chancellor. The bill was filed by the appellees, as creditors; and sought to subject the stockholders of the Ala.

Tried before the Hon. J. M. Carmichbel. This action was brought by the appellants, W. P. Kennon & Bro., against the Western Union Telegraph Company; and sought to recover damages for the failure'to deliver a telegram to the plaintiffs within a reasonable time from its sending.

Hoard before the Hon. Thomas Cobbs. The bill in this case was filed on the 19th day of July, 1890, by Henry Joseph, as a stockholder in the Birmingham, Powderly & Bessemer Street Railroad Company, against the said corporation and J. II. Parsons; and sought tbe cancellation of] certain certificates of slock issued by the corporation to said ' Parsons, on the ground that the stock was fictitious and fraudulent.

Heard before the Hon. Thomas Cobbs. rests his contention, that the ■chancellor erred in sustaining the demurrers, upon the following propositions, and authorities: 1. Subscriptions to the ■capital stock of a corporation constitute a trust fund for the benefit of creditors, which neither the corporation, nor its directors, can dispose of or waste to their prejudice, and any agreement to that effect is void against creditors. — Smith v. Huckabee, 53 Ala. 191; If. db W. P. II.

Tried before the Hon. John P. Hubbard. This action was brought by C. Simmons, the appellant, against the Troy Iron Works, a private corporation organized under the general statutes; and sought to recover damages for the breach of a contract, by which defendant undertook to furnish the plaintiff a certain quantity of ice for a year at a specified price. The defendant pleaded the general issue, and that the alleged contract was ultra vires; and issue was joined >on these pleas.

Tried before the Hon. J. M. Carmichael. This action, brought by the appellee, Mrs, Mary W. Smith,, was based on a lire insurance policy; and sought to recover the amount of insurance therein specified. All the facts are sufficiently set out in the opinion. . cited West. Asso.

Heard before the Hon. H. A. Sharpe. Ail the facts are sufficiently stated in the opinion. (1.) Judgments rendered and confessions of judgment are not such preferences of creditors as are condemned by the statute. — Ins. Co. v. Foster, 58 Ala. 502; Holt v. Bancroft, 30 Ala. 193; Norman v. Walfersberger, 19 Pa. St. 59; Cummer sell v. Handbloom, 19 Mo. Apip. 274; Sampson v. Arnold, 19 Iowa, 479 ; Blakey’s Appeal, 7 Fa. St. 449.

Heard before the Hon. John A. Foster. The facts are sufficiently set forth in the opinion of this court.

Heard before the Hon. John A. Foster. On March 28, 1885, the appellees, E. VanWinkle & Co.,, contracted with Belser & Parker to manufacture and erect for tliem the complete machinery for an oil mill and cotton ginnery, to be built at a certain designated place, at and for the-price of $12,450; three thousand dollars payable on the receipt of the bill of lading, by Belser & Parker, showing the shipment of the machinery, and the balance of the purchase price payable at certain…

Heard before the Hon. Wm. H. Simpson. The facts of this case are sufficiently set forth in the opinion. Upon a final hearing, on the pleadings and proof, the court decreed that the complainants were entitled to the relief prayed, and ordered tliat the sale be set aside. This decree is here assigned as error. cited Shealy v. Edwards, 75 Ala. 411; Pickett v. Pipkin, 64 Ala. 520; Marshall v. Croom, 52 Ala. 555.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 1st day of July, 1889, by F. C. Smith, composing the firm of F. 0. Smith & Co., against the appellees, Chas. G. Jones, his wife, L. I. Jones, and one Mrs. Boach; and sought to have two deeds, one from said 0. G. Jones to Ms wife, and the other to Mrs. Boach, declared null and void, on the ground of fraud as to existing creditors.

Heard before the Hon. John A. Foster. The bill in this case ivas filed by the appellees, as creditors ■of the Montgomery Iron Works Company, against the appellants, Dimiclc, Chambers and Baldwin, as transferees of the Montgomery Iron Works Company, and prayed that a refer■ence be had to the register in order to ascertain the amount of the indebtedness of the said Montgomery Iron Works Co., §md that they be paid by the register their proportionate share of the amount agreed…

Heard before the Hon. B. F. Oassady. The parties to the present suit, the facts as to the bill and the defense set up by the answer thereto, are sufficiently shown in the opinion .of this court. Defendant moved to dismiss the bill for want of equity, which motion was overruled. The defendant also demurred to the bill and assigned, among others, the following grounds: 4th. It is not shown in said bill that respondent disaffirmed the sale of said lot to him. 5th.

Ajppeab from tlie Chancery Court of Tuscaloosa. Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellees, against the appellants, and sought to have certain lauds, alleged to have been fraudulently conveyed by the defendant Freider to the defendant Louisa Sander, set aside as fraudulent, and subjected to the payment of plaintiffs ’ demand.

Heard before the Hon. John A. Foster. The bill in this case was filed by the appellees, W. C..and B. R. Pilcher, against appellants, Lucy Adams, her husband, one-Brooks, and one Farley; and sought- to have a conveyance, absolute in form, declared a mortgage; and that they be let in to redeem the lands therein conveyed. The facts, as disclosed by the bill and. answers and interrogatories, may be-summarized as follows.

Appear from the Chancery Court of Tuskaloosa. Heard, before the Hon. Thomas Cobbs. The bill in this case was filed by the appellee, in the interest of one John Maxwell, against the appellant, Nathan Luffboro.

Appear from the Chancery Court of Autauga. Heard before the Hon. S. K. McSpadden. ’ The bill in this case was filed on dune 20, 1889, by the appellants, as the heirs at law of George W. F. Durden, deceased, against the administrators and heirs at law of Mills Rogers, deceased ; and seeks lo redeem certain described lands from a mortgage, which was executed by the said Durden to said Rogers on Jan. 13,1878.

Heard before the Hon. John A. Foster. In 1844, John McKenzie owned certain lands in Macon.. County, Alabama. In said year he gave a portion of that land to his daughter, Mary S. Wright, but did not execute a deed of gift. In 1862, one Thompson purchased this Wright land on time, and received a bond for title from John McKenzie and wife. In 1864, E. T. Ashurst, the appellant in this court and defendant in the court below, bought from Thompson,, and took possession of the land.

Heard before the Hon. S. K. McSpadden. The bill in this ease was filed on the-day of-, 18 — , by the appellee, I. G. Hill, against the appellant, J. T. Weathers. The prayer of the bill was that a deed made by one Pittman and wife to the respondent might be reformed, and the same removed as a cloud on the complainant’s title.

Appear from tlie Chancery Court of Etowah. Heard before the Hon. S. K. McSpadden. All the facts are sufficiently'' set out in the opinion. “He who comes into equity, must come with clean hands.” — 1 Pom. Eq., §§ 397, 401-2; Kitchens v. Raburn, 19 Wall. 263; Smith v. Olay, 3 Brown. Ch. 639; Johnson v. Johnson, 5 Ala. 97.

Appear from the Chancery Court of Montgomery. Heard before the Hon. John A. Foster.

Heard before the Hon. S. K. McSpadden. This was a bill filed by the appellees against the appellant, to enforce a vendor’s lien on land for unpaid purchase-money. The averments of ihe bill are shown in the opinion. The defendants demurred to the bill, on the ground that the plaintiffs by their bill did not show in themselves a right to sue on the note and enforce a vendor’s lien. This ground of demurrer is stated in many forms.

Heard before the Hon. Tnos. W. Coleman. The bill in this case was filed by the appellant, Price Williams, Jr., in his official capacity as probate judge of Mobile County, against George Stoutz, as administrator of one Hulsebusch, deceased, and against Thomas M. LeBaron and William Stoutz, as sureties on the bond of the said administrator; and sought to compel a discovery by them of assets in their hands liable to the claim of distributees of said Hulsebusch, and also to…

Appeals from the Chancery Court of Crenshaw. Heard before the Hon. John A Foster. These two causes were submitted together — the facts and the grounds of relief being substantially the same in both causes.

Appear from the Chancery Court of Dale. Heard before the Hon. J oiin A. Foster. The facts of this case are very fully set out in the opinion.

Heard before the Hon. John A. Poster. The conveyance by complainant and her husband, was an abandonment of her right to dower. — Barber v. Williams, 74 Ala. 332; Wallace v. Hall, 19 Ala. 367; Cook v. Webb, 18 Ala. 810; Shelton v. Carroll. 16 Ala. 148; Weaver v. Crenshaw, 6 Ala. 873.

Heard before the Hon. W. H. Tayloe. The bill in this case was filed by the appellees, Emma Gordon and Alberta Triplett, against the appellants, Louis Stein, individually, and as executor of tbe last… Held: managed and controlled solely by my executor hereinafter named, and that the annual income derived therefrom be divided equally among my five surviving children, viz., Alberta, wife of John Triplett, Frederick, Louis, Emma, and Ella, wife of Follin Davenport.

Heard before the Hon. H. A. Sharpe. The appellees, who were complainants in the court below, filed their bill of complaint, and prayed the court to construe the will of Cynthia A. McDonald, and to take jurisdiction of the trust created by the will and have the same administered in that court.

Heard before the Hon. E. H. Glenn. On February 9th, 1885, the appellant, George H. Thompson, was ajjpointed the guardian of William N. Richardson, a lunatic, qualified as such guardian, and took possession of the personal property and real estate of his ward. During his guardianship he made several partial settlements thereof, as is stated in the opinion; the last of said settlements being made July 9,1886.

<p> Petition for Revocation of Letters of Guardianship. </p> <p>1. Appointment, of guardian; residence of minor. — The residence of a minor, under the statute which authorizes the appointment of a guardian by the Probate Court of the county “in which such minor resides” (Code, § 2370), is his legal residence, and is determined by the domicile of the father while living; and on the death of the father, his domicile continues to be the legal residence of his minor child, though at the time living with a relative in another county.</p> <p>2. Domicile, as affected, by temporary change of abode — A minister of the Methodist Church, who, on the death of his wife, breaks up housekeeping, sends his minor child to the house of a relative in another county, rents out his plantation, joins the conference of his church, and is sent to a station or mission in another county, does not thereby forfeit his domicile, nor acquire a new domicile in the county to which he is sent.</p>

Tried before the Hon. Sam. H. Sprott. — The lower court erred in giving the general affirmative charge in favor of plaintiff, because the proceedings in the suit by Moody, as assignee, and sale under said proceedings, together with the deed of October, 1890, in the absence of a supersedeas bond by Mrs. Warren or Kennedy, vested the legal title in Cochran .and McEachin. — Phillips v. Benson, 85 Ala. 416 ; Marx v. Oowles, 61 Ala. 299.

Tried before the Hon. ¥m. E. Clarke. This is a statutory real action in the nature of ejectment brought by the appellant, Hugh Murray, against the appellee, George H. Hoyle; and sought to recover a certain lot in the city of Mobile, specifically described in the complaint. • The plaintiff based his right of recovery on two grounds, viz.: first, actual possession under claim of title at the time of entry by defendant oh May 29th, 1889; and secondly, the continuous, open,…

Tried before the TIon. John P. Hubbard. This was a statutory action of ejectment, brought by theappellee, H. 0. Semple, as administrator of the estate of William Thomas Williams, against the appellant, J. R. Pinkston; and sought to recover from the defendant a tract of land, of which the intestate of plaintiff had been possessed, and which he had professed to sell and convey to the defendant in this action.

Appear from the Circuit Court of Montgomery. Tried before the Hon. John P. Hubbard. This was a statutory action in the nature of ejectment brought by the appellant, A. K. Abbett, against the appellees, Mattie Page et at, and sought to recover the possession of a certain lot specifically described in the complaint.

Tried before the Hon. John P. Hubbard. This was a statutory action of ejectment brought for the benefit of Eliza Clancy, by her guardian, against -the appellee, _F. M. Stephens; and sought to recover certain lands specifi•cally described in the complaint. The plaintiff based her right of recovery upon her right, as surviving widow, to'a dower and quarantine in the lands sued for, which was her •deceased husband’s last homestead.

Tried before the Hon. John P. Hubbard. This is a statutory real action in the nature of ejectment, brought by the appellees, as the heirs of Richard Reeves, deceased, against the appellant, Stephenson, wherein they seek to recover the possession of certain lands specifically described in the complaint. The facts necessary to understand the only question ruled on in the opinion of this court are sufficiently set forth therein, and need- not be repeated here.

Tried before the Hon. Jesse M. Carmichael. Held: had been in adverse possession of the land sued for for a period of ten years next before the commencement of this suit.

Tried before the Hon. John P. Hubbard. This was an action of unlawful detainer brought by the appellee, against the appellant; and was commenced before a justice of the peace. Upon the trial, as is shown by the bill of exceptions, the plaintiff introduced in evidence the rental note given to him by the defendant on March 26th, 1889, which was in the following language: “On the 1st day of October next, I promise to pay it.

Tried before the Hon. Jesse M. Carmichael- On September 19th, 1888, the appellant, Josephine Wright, recovered a judgment against the appellee, Wilson Hurt, in an action of forcible entry and unlawful detainer. On this .judgment a writ of restitution was issued, and the plaintiff in the said cause was put in possession of the lot involved in this suit.

This is a motion made by Lillie Y. Shear for a mandamus, or other remedial writ, against Hon. Leroy E. Box, Judge of the 7th Judicial Circuit, to require him to vacate an order rendered in the case of Lillie V. Shear v. Woodstock Iron Company.; in the Circuit Court of Calhoun County, requiring plaintiff to pay the costs of former suit in ejectment between the same parties, and relative to the same subject-matter, before proceeding further with this second suit.

J. M. Carmichael. The appeal in this case is taken from the refusal of the judge of the Circuit- Court to grant a writ of mandamus to compel the judge of the Probate Court of Geneva county to ■grant a license to ' the appellant to retail liquor.

Tried before the Hon. Leroy F. Box. On Feb’y 4th, 1882, the appellee, D. P. Gunnels, obtained a judgment against one Solomon Bean, as the administrator of the estate of D. E. Hawkins, deceased ; and on this judgment execution was issued, to be levied on the goods, chattels, lands, cited Bean v. Qhapman, 73 Ala. 140; Martin v. Ellerbe, 70 Ala. 341; Graves v. Flowers, 51 Ala. 402; 2 Brick. Dig. p. 138.

Tried before the Lion. Wm. H. Simpson. On February 20th, 1891, Thomas F. Jennings, the appellant, presented to the appellee, E. M. Iiussell, as Probate Judge of Morgan County, an application for a license to sell spirituous, vinous and malt liquors, within the corporate limits of the town of Falkville in said county; and this application was accompanied by the indorsement of the requisite number of house-holders and free-holders in said town, as required by law.

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

Tried before the Hon. John P. Hubbard. This was an action by the appellee, Reuben Diamond, against John W. Benton, the sheriff of Covington County, and his official bondsmen, and sought to recover damages for the wrongful levy of an execution. The facts of the suit and the judgment upon which the execution was issued are sufficiently set forth in the opinion.

Appear from the Circuit Court of Jackson. Tried before the I-Ion. John B. Tally. This action was brought by Wm. H. Clanton, against John TL Eaton, who was his tenant; and sought to enforce, by attachment against the defendant’s crop, a statutory lien for advances made to the defendant by one Hall, a merchant, at the instance and request of the plaintiff, as he alleged.

Tried before the Hon. James R. Dowdell. This was an attachment suit, brought by the appellant, Joshua Ballard, against the appellee, one Dr. M. H. Stephens ; and sought to recover for rent and advances due the plaintiff from the defendant.

Tried before the-Hon. Jesse M. Carmichael. This is an action brought by the appellee Daniel Powell,, against the appellants, and was commenced by attachment. All the facts, rulings of the court, and judgment rendered, are sufficiently set forth in the opinion. cited McCoy v. Watson, 5.1 Ala. 466; 61 Ala. 387; Haralson v. Campbell, 63 Ala. 278; McÁbee v. Parker, 78 Ala. 573; 82 Ala. 294.

Tried before the Hon. B. E. Cassady. On August 21, 1888, the appellee, R. E. McKibbon, recovered a judgment in the Circuit Court of Calhoun County, against the appellant, A. C. Stuckey, in an action… Held: at the time of the service of the garnishment, $600 belonging to the said Midway Machine Company, and this was to be used in paying the expenses incurred in executing the assignment.

<p>Statutory Detinue, by Mortgagee against Mortgagor.</p> <p>1. Payment of mortgage debt as defense. — By statutory provision, payment of the secured debt is a defense to an action of detinue by the mortgagee against the mortgagor (Code, § 1870); but the defense is not made out by proof of partial payment and failure of consideration as to the residue of the debt; as, that the mortgagee promised to pay a debt which the mortgagor owed to a third person, and failed to pay it.</p>

Tried before the Hon. James B. Head. This was a statutory action of detinue brought by the appellee, Geo. W. Brooks, as next friend for the minor children of B. H. Kline and Mrs. M. Kline, deceased, and sought to recover the possession of one white mare. The case was submitted upon an agreed statement of facts.

Tried before the FIou. Jesse M. Carmichael. This action was brought by the appellant, A. A. Oohh, against the appellees, Malone & Collins; and sought to recover damages for the alleged wrongful conversion by the defendants of one hale of cotton, upon which the plaintiff alleged he had a lien.

<p> Statutory Proceeding against- Officer, to compel Delivery of Books and Papers to Successor. </p> <p>1. Commissioner of Agriculture; term of office; filling vacancy. — By statutory provisions'of force on the 18th February, 1891, the Commissioner of Agriculture was appointed by the Governor, and held office for the term of two years, and until his successor was elected and qualified (Code, § 130); and the statute approved on that day, entitled “An act to make the oflice of Commissioner of Agriculture elective,” provided, “that the oflice of Commissioner of Agriculture be hereby declared an elective olfice, and that at the general election in 1892, and every two years thereafter, there shall be elected one Commissioner of Agriculture, whose term of office shall be two years” (Sess. Acts 1890-91, p. 1213). Held, that this statute did not create an immediate vacancy in the office of commissioner, and that on the expiration of the incumbent’s term, September 1st, 1891, the Governor had the right and power to fill the vacancy by appointment, until the next general elect ion in August, 1892. McC i.ei.lax and Colis.max, J. J, dissenting, held that the statute created an immediate vacancy in the office, and that the vacancy could only be filled by a special election.</p>