Volume 93 — Alabama Reports

Action for Damages on account of Personal Inf tries, 'by Brakeman against Railroad Company. Appeal from the City Court of Birmingham. Tried before the Hon. H. A. Sharpe. , This action was brought by Willis Kyle against the appellant corporation, to recover damages for personal injuries sustained by plaintiff while employed as a brakeman in the defendant’s service; and was commenced on the 2d May, 1889.

Statutory Action in nature of JEjectment. Appeal from the Circuit Court of Calhoun. Tried before the Hon. Leroy E. Box. This action was brought by Emmett F. Crook against the Anniston City Land Company, to recover a tract of land described as the north-west quarter of the north-east quarter of section five (5), township sixteen (16), range eight (8) East; and was commenced on the 10th January, 1888.

Action for Damages I/y Passenger. Appeal from the Circuit Court of'Jefferson. Tried before the Hon. James B. Head. This action was brought by Mrs. Nancy M. Sellers and her husband, to recover damages for personal injuries sustained by her while travelling as a passenger on one of the defendant’s trains of cars; and was commenced, on the 28th September, 1883.

<p>1. Misrepresentations of vendor, as fraud; equitable relief against. — A misrepresentation by the vendor of a material fact in relation to his title to the land, the falsity of which was unknown to the purchaser, and could not have been ascertained by reasonable diligence, is a fraud against which a court of equity will grant relief; but, where there is no fraud, and the vendor is not insolvent, the purchaser must rely on his covenants of warranty, and can not refuse to pay the purchase-money while retaining the possession of the land.</p> <p>2. Same. — When the purchaser was induced to enter into the contract by the vendor’s fraudulent misrepresentations in a material matter affecting the validity of his title, he may claim a rescission notwithstanding the subsequent acquisition by the vendor of a good and valid title ; but a mere defect in the title, no fraud being practiced, will not support a bill for rescission, if it is removed at any time before the hearing.</p> <p>3. Same. — Where the purchasers sought a rescission on account of fraudulent representations by the vendor as to his title, as follows, ■“that his title to said property was perfect and good; that he owned the property in fee simple, had a good right to sell it, and could convey a good title to them; that he had always owned the land, and had a patent from the Government for it; that the title had always been in him, and he had always refused to sell;itHeld, that a rescission would not be granted on evidence showing that he had executed a .conveyance of the land to his son in law more than twenty years before, and that said grantee had brought an action at law against them .to recover the possess'on; when it is also shown that said conveyance was never acknowledged, proved, or filed for record until after a bill was filed to enforce a vendor’s lien, to which they filed a cross-bill asking a rescission; that the vendor had always continued in possession under claim of ownership, and had never delivered possession to said grantee; and that the action at law was dismissed, and a ■quit-claim deed executed to him by said grantee, before the hearing of the case.</p>

Garnishment in aid of Pending Action. Appeal from the City Court of Montgomery. Tried before the Hou. Thos. M. Arrington. This action was brought by the appellants, suing as a partnership, against J. D. Hubbard; and was commenced in a justice’s court, on the 9th August, 1890. A garnishment was •sued out in aid of the action, and was served on the Louisville & Nashville Railroad Company, as the debtor of said Hubbard.

Action against Railroad Company, for Damages on account of Personal Injuries. Appeal from the City Court of Birmingham. Tried before the Hon. H. A. Sharpe. This action was brought by G. A. Chewning against the appellant corporation, to recover damages for personal injuries,, which necessitated the amputation of one of plaintiff’s arms;, and was commenced on the 27th February, 1890. The jury awarded the plaintiff $2,500 damages.

Action for Damages against Telegraph Company, on account of Delay in Delivery of Message. Appeal from the Circuit Court of Talladega. Tried before the Hon. Leroy E. Box. This action was brought by W. L. Wilson against the appel-' lant, to recover damages for undue delay in the transmission and delivery to him of a telegram from his brother, W. J. Wilson, announcing the death of their father. The jury gave the plaintiff a verdict for $275.

<p> Action for Damages for Assault and Battery. </p> <p>Appeal from the Circuit Court of Jefierson.</p> <p>■ Tried before the Hon. James B. Head.</p> <p>This action was brought by Guy Walker, a negro, against George Lunsford, a white man, to recover damages for an assault and battery; and was commenced on the 21st June, 1889. The only plea was, not guilty. The difficulty between the parties occurred in May, 1888, at the store of W. G. Lunsford, who was a son of the defendant, and under these circumstances : The plaintiff, who was a plasterer by trade, had done some work for the defendant, on which he claimed a balance of $19 was due him; and he had contracted to do some work on another house, but had not finished it; and he had procured some materials for the latter job from one Baldwin, promising to pay when he had a settlement with defendant. At the instance of Baldwin, plaintiff went with him to see defendant and try to effect, a settlement; and an altercation between them then ensued, which resulted in the interference of W. G. Lunsford, who assaulted the plaintiff; and while they were fighting, the defendant struck plaintiff with a piece of board, knocking him senseless, and inflicting severe personal injuries. The plaintiff testified that he had no weapon at the time, and none was found on him when he was picked up and carried away; but the defendant’s evidence tended to show circumstances which might have justified the belief that he was armed.</p> <p>The court charged the jury, in effect, that under the pleadings, they were “bound to find for the plaintiff, if they believed the evidence;” that they could consider the evidence of provocation or wrongful conduct on the part of the plaintiff “only in mitigation of damages;” and that they should consider the case without regard to the difference in race or color of the parties. The defendant excepted to each part of this charge, and also to the refusal of each of the following charges, which were asked by him in writing: (1.) “If the jury believe from the evidence that plaintiff so conducted himself as to produce in the mind of the defendant the conviction that plaintiff had a pistol, and the intention to use it, then defendant had the legal right to use such force as was neceessary to prevent plaintiff from>using the pistol; and if the jury believe from the evidence that he used no greater force than was necessary to prevent the apprehended attack with the pistol, then they may find a verdict for the defendant.” (2.) “If the jury believe from the evidence that plaintiff’s conduct was such as to produce in the mind of the defendant the conviction that plaintiff intended to do great bodily harm either to the defendant or his son, and that defendant used no more force in striking than the circumstances, as they appeared to him, made necessary to prevent the apprehended injury, if injury was apprehended; then they may find a verdict for the defendant.” (3.) “If the jury believe from the evidence that the defendant struck the plaintiff in self defense, believing from plaintiff’s conduct and the appearances that he was in danger of great bodily harm from the plaintiff, and the blow was not greater than was necessary to prevent the apprehended danger from the pistol; then the jury must find for the defendant!”</p> <p>The charges given, and the refusal of the charges asked, are assigned as error.</p>

<p> Bill in Equity for Injunction against Affirmed Judgment. </p> <p>Appeal from the Chancery Court of Jefferson.</p> <p>Heard before the Hou. Thomas Cobbs.</p>

Statutory Detinue for Mule. Appeal from the Circuit Court of Geneva. Tried before the Hon. Jesse M. Carmichael. This action was brought by Travis Bedsole against Malone & Collins, to recover a mule, which the plaintiff claimed under a purchase in August, 1888, from one O. C. Russell, and which the defendants claimed as the assignees of a mortgage executed by said O. O. Russell to William Russell in March, 1888.

<p>1. Plea equivalent to general issue. — When the general issue is pleaded in an action for damages, and another plea which “denies each and every allegation, statement and averment of the complaint,” the latter may be stricken out as redundant, and sustaining a demurrer to it is not a reversible error, since it could have wrought no injury.</p> <p>2. Contributory negligence, as defense for willful injury. — A plea averring the contributory negligence’of the plaintiff himself is no answer to a complaint claiming damages for injuries alleged to have been willfully inflicted by the defendant’s servants while in the discharge of their duties.</p> <p>3. Injuries to ejected passenger by brakeman; punitive damages. — If a person, in violation of the known rules of a railroad company, gets on a train which is not allowed to carry passengers, and refuses to leave when ordered by the conductor, he is a mere trespasser, and may be lawfully ejected by the conductor, or by a brakeman acting under his orders; but, if the brakeman willfully uses more force than is necessary to eject him, or commits an assault and battery on his person in order to compel him to leave, an action lies against the railroad company, and the jury may award punitive damages.</p> <p>4. Same; evidence as to attending circumstances. — The material issue being whether the assault on plaintiff was justified, or even palliated by his own conduct, everything that was said and done by and between the parties, just before and up to the time when he was ejected, or forced to leave the car, is admissible evidence as part of the res gestee.</p> <p>5. To what witness may testify. — A witness, or a party testifying as a witness, may state that he was insisting “in a pleasant manner” that he be allowed to remain on the cars.</p> <p>6. Objection to question not answered. — The overruling of an objection to a question which, as the record shows, was not answered, if erroneous, is not a reversible error.</p> <p>7. Testimony of party as to character and extent of injuries. — The injury suffered by plaintiff being a double fracture of the lower jawbone, and the trial being had nearly two years after the injury was received, he may testify, though not an expert, that his jaw was permanently injured, and may state how it was affected at the time of the trial.</p> <p>8. Earnings as element of damages. — The injuries received by plaintiff having disabled him for some time to carry on the business in which he was engaged, he may prove, as an element of his damages, “what he was making at the time he was injured.”</p> <p>9. Exclusion and subsequent admission of evidence. — If evidence is erroneously excluded when first ofiered, but is afterwards admitted, the error is thereby cured.</p> <p>10. Admission and subsequent exclusion of evidence. — If evidence is improperly admitted against objection, but is afterwards excluded, and the jury instructed to disregard it entirely, the error is thereby cured.</p> <p>11. Argument of counsel to jury. — Expressions and statements of ■ counsel in argument to the jury, not founded on any evidence before</p> <p>them, are not available on error, when the record shows that they were promptly withdrawn on objection, and that the court instructed the jury to disregard them.</p> <p>12. Charge as to punitive damages. — When the complaint claims punitive damages, and there is evidence tending to establish the claim, the court may instruct the jury “that, if they find from the evidence that vindictive damages should be given, they have a right to give such damages as the evidence authorizes, not beyond the amount claimed in the complaint.</p> <p>13. Charge as to testimony of witness willfully false in part. — A charge which instructs the jury that, if the testimony of a witness is willfully false in any one material point, they must disregard it altogether, is an invasion of their province; but they may be instructed that, if they find his testimony to be willfully false in any one particular, they may disregard it entirely.</p> <p>14. Charge to jury as to weight of evidence, as affected by number of witnesses. — The court may instruct the jury that, in reaching a conclusion on any question of fact, they are not to be be controlled by the mere number of witnesses on one side or the other, but should consider that fact only in connection with all the other circumstances conducing to credence or the reverse.</p> <p>15. Burden of proof as to necessary or excessive force. — When the plaintiff sues to recover’damages for injuries received in being forcibly ejected from a railroad car, and a special plea avers, in substance, that he was a trespasser on the train, and that no more force was used than was necessary to eject him, the onus as to the degree of force used is on the defendant,</p> <p>16. Abstract and argumentative charges are not reversible error, though they may properly be refused.</p>

Statutory Action in nature of Ejectment. Appeal from the Circuit Oourt'of Lee. Tried before the Hon. Jesse M. Carmichael. This action was brought by T. E. Blanchard and the heirs of L. M. Burrus, deceased, against Burrell Eloyd and Jack Huguley, to recover the possession of a tract of land particularly described in the complaint; an:l was commenced on the 17th March, 1887.

<p> Statutory Action in nature of Ejectment. </p> <p>Appeal from the Circuit Court of Dale.</p> <p>Tried before the Hon. Jesse M. Carmichael.</p>

Trespass against Sheriff and Sureties on Bond of Indemnity ff or Wrongful Levy of Attachments. Appeal from the Circuit Court of Morgan. Tried before the Hon. James B. Head.

Bill in Equity by Judgment Creditor of Husband, to set aside Conveyance to Wife as Fraudulent. Appeal from the City Court of Decatur, in equity. Heard before the Hon. Wm. H. Simpson.

<p>1. Damages to tenant’s crop, by landlord’s mules or cattle, as set-offl In an action by a landlord against bis tenant’s crop, commenced by attachment,fthe defendant may, under the plea of set-off, claim a. deduction for damagés done to his crop by plaintiff’s mules or cattle (Code, § 2678); but, if the animals were turned in on the crop with his consent, he can not complain.</p>

Application by petition by one John Murray, for the writ of habeas corpus, to procure his discharge from custody under a criminal charge of peddling without a license. On a hearing before Hon. Thos. M. Arrington, of the Oity Court of Montgomery, the facts being admitted, a discharge was refused; and hence the application to this court. cited Agee v. State, 83 Ala. 110; Bobbins v. Shelby County, 120 U, S. 489; Leloup v. Mobile, 127 U. S. 640.

Bill in Equity for Rescission of Contract. Appeal from the Chancery Court of Jefferson.. Heard before the Hon. Thomas Cobbs.

<p>1. Authority to agent to settle and collect. — Authority to an agent to settle and collect a debt does not give him power to compromise it, or to accept less than the full amount in payment and satisfaction; and though such extension of authority may be inferred by the jury from evidence showing that the debtor, having failed in business, notified his creditors that he could pay them eighty cents on the dollar, and afterwards paid that sum to plaintiff’s agent, who had authority to settle and collect, this evidence does not authorize the court to instruct the jury that the authority to settle and collect gives the agent power to accept less than the full amount of the debt in compromise and settlement of it.</p>

<p> Prosecution for Violation of Municipal Ordinance.- </p> <p>Appeal from the City Court of Decatur.</p> <p>Tried before the Hon. Wm. H. Simpson.</p>

<p>Bill in Equity for Partition of Lands, or Sale for Distribution.</p> <p>Appeal from the Chancery Court of Coffee.</p> <p>Heard before the Hon. John A. Foster.</p>

Bill in Equity for Construction of Lease, and Injunction against Legal Proceedings for Forfeiture. Appeal from the City Court of Birmingham, in equity. Heard before the Hon. H. A. Sharpe. The bill in this case was filed on the 30th January, 1891, by the appellant corporation, against Thos.

Motion to set aside Sale of Lands under Execution. Appeal from the Circuit Court of Covington. Tried before the. Hon. John P. Hubbakd. The appellants in this case recovered a judgment in said Circuit Court, on the 5th September, 1888, against William Gantt; and an execution issued on that judgment was levied on certain lands as the property of said defendant.

Attachment Suit by Landlord,, for Rent and Advances. Appeal from the Circuit Court of Pike. Tried before the Hon. John P. Hubbard. This action was brought by R. E. Bolling against J. O. Giddens, and was commenced by attachment sued out on the 18th December, 1889, claiming $1,275 as the aggregate amount due for rent and advances to make a crop during the year 1889.

<p>1. Assignment of mortgage; sale under powe'' by assignee. — Under statutory provismns (Code, § 1844), a power of sale in a mortgage maybe executed by an assignee, although the assignment does not contain apt words oí conveyance.</p> <p>2. Same; impeaching consideration. — In an action by the purchaser at a sale by the assignee, against the mortgagor, to recover the possession of the mortgaged lands, the defendant can neither impeach the validity of the assignment, nor inquire into the consideration passing between the parties.</p> <p>8. General objections to evidence. — Objections to testimony, not defining the grounds of objection, are too general, since the court is not bound to cast about in search of them.</p>

Bill in Equity by Creditor to set aside Conveyance as Fraudulent. Appeal from the City Court of Birmingham, in equity. Heard before the Hon. H. A. Sharpe. The bill in this case was hied on the 21st of August, 18S9, by the First National Bank of Birmingham, as a creditor of W. A. Smith, against said Smith and his wife; and sought to set aside, on the ground of fraud, a conveyance of certain real estate in Birmingham executed by said Smith to his wife.

Application by petition by William L. Tillman, for a mandamus to Hon. John A. Foster, presiding in the Chancery Court of Butler county, requiring him to order Jabez F. Brown, who was the sheriff of said county, to restore to the possession of the petitioner certain personal property, which said Brown held as a receiver in a chancery suit, under the facts stated in the opinion of the coart.

<p>Bill in Equity by Creditors, to set aside Conveyances as Vol- ■ untary and Fraudulent.</p> <p>Appeal from the Chancery Court of Walker.</p> <p>Heard before the Hon. Thomas Cobbs.</p>

Statutory Action in nature of Ejectment. Appeal from the City Court of Birmingham. Tried before the Hon. A. A. Coleman, as special judge.

<p>1. Parties defendant to bill to enforce liability of stockholders of dissolved corporation. — All of the stockholders of a dissolved insurance-company are necessary parties defendant to a bill filed by some of the policy-holders, in behalf of themselves and' other creditors, to enforce the individual liability of the stockholders, over and above their unpaid subscriptions for stock, under constitutional and statutory provisions formerly of force (Const. Ala. 1868, Art. xm, §§ 2, 3; Code, 1867, § 1760); and if any of them are insolvent, or beyond the jurisdiction of the court, that fact should be alleged as an excuse for not making them parties to the bill.</p>

Attachments for Bent, by Assignee of Tenants Notes. Appeals from the Circuit Court of Barbour. Tried before the Hon. Jesse M. Carmichael. These two actions w;ere brought by J. A. Adams against J. G Stephens, and each was commenced by attachment sued out before a justice of the peace, on the 30th December, 1889.

Statutory Action in nature of Ejectment. . Appeal from the Circuit Court of Mobile. Tried before the Hon. Wm. E. Clarke. This action was brought by John Dahm and Timothy Mealier, against F. Barlow & Go. as a partnership, and against the individual partners composing the firm, to recover the possession of a tract of land particularly described in the-complaint; and was commenced on the 13th.November, 1890.

Creditors' Bill in Fiquity to set ’aside. Fraudulent Conveyances. Appeal from the Chancery Court of Butler. Heard before the Hon. John A. Foster.

<p> Action on Account for Medical Services. </p> <p>Appeal from the Circuit Court of Jefferson.</p> <p>Tried before the Hon. James B. Head.</p>

Action against Street Bailway Company; for Damages on account of Personal Inf ivies. Appeal from the City Court of Birmingham. Tried before the Hon. H. A. Sharpe. This action was brought by W. S. Alexander against the appellant corporation, to recover damages for personal injuries sustained by plaintiff in being thrown from his wagon while attempting to drive across one of the defendant’s tracks in the city of Birmingham.

Sill in Equity to enforce Resisting Trust in Lands. Appeal from the Chancery Court of Jackson. Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 28th December, 1886, by Mrs. Martha E. Olds, against G. Humphrey Marshall, who was her brother; and sought to enforce a resulting trust in a tract of land, which had once belonged to A. Marshall, their father, and of which he continued in possession until his death hr March, 1886.

Action ig Passenger against Railroad Oompang, for Damages on account of Personal Injuries. Appeal from the City Court of Birmingham. Tried before the Hon. IT. A. Sharpe.

Action for Statutory Penalty for Cutting Trees. Appeal from the Circuit Court of Lawrence. Tried before the Hon. H. C. Speake. This action was brought by E. S. Little and others, suing as trustees of the “Mount Pleasant Church,” to recover the statutory penalty for cutting trees on certain land belonging to the church; and was commenced oil the 13th January, 1886.

Bill in Equity in nature of Specific Performance, and for Injunction of Action at Law, Cancellation of Deed, dec. Appeal from the Chancery Court of Jackson. Heard before the Hon. Thomas Cobbs.

Action on Common Counts. Appeal from the Circuit Court of Jackson. Tried before the Hon. John B. Tally. This action was brought by W. A. Jackson against James O. Bobinson, and was commenced in a justice’s court on November 21st, 1888.

<p>1. Sale of goods on credit to insolvent purchaser; when seller may rescind. — When an insolvent purchaser procures goods on credit by a fraudulent misrepresentation or fraudulent concealment of his financial condition, having at the time no intention nor reasonable expectation of paying for them, the seller may resc'nd the contract, and reclaim the goods, unless they have passed into the hands of a bona fide purchaser without notice; but a mere misrepresentation of his financial condition by the purchaser, “made innocently and in the reasonable belief of its truth,” does not give the seller this right of rescission and reclamation.</p>

Bill in Equity for Cancellation of Deed as Cloud on Title. Appeal from the Chancery Court of Madison. Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 13th October, 1888, by Mrs. Louisa J. Yincent, a married woman, against Elijah F. Walker, Frank B. Gurley, and her husband, Wm.

Garnishment in Pending Action; Contest of Answer. Appeal from the City Court of Decatur. Tried before the Hon. War. H. Simpson.

Action on Common Counts, for Goods Sold and Delivered. Appear from the Circuit Court of Limestone. Tried before the Hon. IT. C. Speake. This action was brought by “James Trabue, Vm.

Action for Damages by Administrator of Person Killed by Railroad Accident. Appeal from tbe Circuit Court of Fayette. Tried before the Hon. S. H. Sprott. This action was brought by John W. Hammond, as the administrator of the estate of Zuela Shelton, to recover damages for the personal injuries which caused the death of his intestate, on the 25th May, 1889, while in the service of the defendant . corporation; and was commenced on the 20th January, 1890.

Rill in Equity for Redemption of Lands sold wider Mortgage. Appeal from the City Court of Montgomery, in equity. Heard before the Hon. Tnos. M. Arrington. The bill in this case was filed on the 6th June, 1890, by John W. Moore, against R J. Chambers, Wm.

Bill in Equity ly Creditor to set aside Comeyanee as Fraudulent. Appeal from the Chancery Court of Cherokee. Heard before the Hon. S. K. MoSpadden.

Trover for Conversion of Horse and Buggy, with Count in Case for Fraud and Deceit. Appeal from the Circuit Court of Cleburne. Tried before the Hon. Leroy F. Box. This action was brought by Hannibal Allen against W. J. Henry, and was commenced on the 20th October, 1888. The opinion states the pleadings, and the material facts proved on the trial.

Bill in Equity for Coniribittion betiueen Sureties, and to reach and subject Property Fraudulently Conveyed by Deceased Surety. Appear from the Chancery Court of Mobile. Heard before the Hon. War. H. Tayloe. The bill in this case was filed on the 3d January, 1891, by Bernard Kahn, against Olías.

Action for Damages against Railroad Company, by Administrator of Person Killed. Appeal from the Circuit. Court of Barbour. Tried before the Hon. Jesse M. Oaiimici-iael. This action was brought by Mrs. Sarah A. Vaughan, as administratrix of the estate of ber deceased husband, Asa Vaughan, to recover damages for the alleged negligence of the defendant’s servants which caused his death; and was commenced on the 4th March, 1890.

Pill in Equity by Mortgagee, as Purchaser at Sale under Power. Appeal from the Chancery Court of Morgan. Heard before the Hon. Thomas Cobbs.

Statutory Action in nature of Ejectment. Appeal from the Circuit Court- of Jefferson. Tried before the Hon. James B. Head. Held: in hostility to the true title.” (7.) “A possession permissive in its inception can become adverse only by a clear, positive, continuous disclaimer and disavowal of the title of him from whom it was derived, and the assertion of a hostile title brought to his knowledge.” (8.) “When the owner of lands resides in another State, and at…

Bill in Equity for Cancellation of Deed as Cloud o?i Title, and Equitable Belief against Sale of Land for Taxes. Appeal from the City Court of Montgomery, in equity. Heard before the Hon. Thos. M. Arrington.

Bill in Equity to enforce Vendor's Lien on Land; Cross-Bill for Set-off and Recoupment of Damages. Appeal from the Chancery Court of Marshall. Heard before the Hon. S. K. McSpakden. The bill in this case was filed on the 16th May, 1889, by Arthur IT. Beard against W. M. Gunter, John H. Gunter, and others; and sought to enforce a vendor’s lien on a tract of land, for an alleged balance of purchase-money due and unpaid.

<p> Petition to set aside Writ of Assistance. </p> <p>Appeal from the Chancery Court of Marshall.</p> <p>Heard before the Hon. S. K. McSpadden.</p> <p>cited Hooper v. Yonge, 69 Ala. 484; Johnson v. Smith, 70 Ala. 108; Wilkinson v. May, 69 Ala. 33 ; Thompson v. Campbell, 57 Ala. 185 ; Chapman v. Gibbs, 51 Ala. 502; Creighton v. Paine, 2 Ala. 158; Trammell v. Simmons, 8 Ala. 271; Smith v. Gayle, 58 Ala. 600 ; Howard v. Kennedy. 4 Ala. 592; 1 McCarter, N. J. 37; 4 Paige, 204; 11 Wise. '454; Dan. Ch. Pr. 1062, notes.</p>

Bill in Equity between Tenants in Common, for Sale of Lauds for Distribution, and Account of Rents and Profits. Appeal from the Chancery Court of Cleburne. Heard before the Hon. S. K McSpadden. The bill in this case was filed on the 22d February, 1889, by George D. Johns, Erastus S. Johns, and Mrs. Mary A. Boyd, against William J. Johns, Thos.

Bill in Equity for Settlement of Partnership Accoimts. Appeal from the Chancery Court of Lee. Heard before the Hon. S. Iv. McSpadden. The bill in. this case was filed on the 24th June, 1890, by S. T. Nelms against C. T. MeGraw; and sought the dissolution of an alleged partnership between them, and a settlement of partnership accounts, the complainant claiming that the defendant owed him at least $250.

Action on Informal Appeal Bond. Appeal, from the Circuit Court of Crenshaw. Tried before the Hon. John P. Hubbard. This action was brought by Thomas W. Shows against James P. Pendry and others, was founded on a bond executed by the defendants, and was commenced on the 19th August, 1889.

<p>1. Defer,l of title, as defense to action for purchase-money. — When a purchaser of land has gone into possession under a deed with covenants of warranty, and remains in possession, he can not defend against an action for the purchase-money, either at law or in equity, on account of a defect in the title, unless there was fraud in the sale, or the vendor is insolvent and unable to respond in damages.</p> <p>2. Statute of frauds, as to contract for sale of lands ;'part performance. — A verbal contract for the sale of lands is taken out of the operation of the statute of frauds (Code, § 1732, subd. 5), when a part of the purchase-money is paid at the time, and the purchaser is put in possession, or, being already in possession as lessee, retains possession as purchaser; and if a deed is prepared and duly executed by a third person, in whom the title iá outstanding, tendered to the purchaser in compliance with the terms of the contract, examined and approved by him, but returned to the vendor to be held until the purchase money is paid in full, this satisfies the requisitions of the statute.</p> <p>3. Charges ashed, and given with qualification; error without injury. Charges asked in writing must be given or refused in the terms in which they are expressed (Code, § 2756), and the court has no power to qualify them ; yet, if the charge asked' is erroneous, giving it with a qualification is not a reversible error.</p>

Action on. Policy of Insurance against Fire. Appeal from the City Court of Birmingham. Tried before the TIon. IT. A. Sharpe. This action was brought by Charles IT.

Statutory Detimoe for Piano. Appeal from the Circuit Court of Jefferson. Tried before the Hon. James B. Head. This action was brought by F. L. Freyer against I. H. Weinstein, to recover a piano, which the plaintiff (or Freyer & Co.) had sold to one Paul Franklin, and which the defendant claimed by purchase from said Franklin.

Bill in Equity to have Absolute Conveyance declared Mortgage, and for Account and Redemption. Appeal from the Chancery Court of Calhoun. Heard before the Hon. S. K. McSpadden.

<p>' 1. Contract of hiring “by the month.” — Under a contract of hiring “by the month,' at $G0-per month,” no particular term being specified, if the employé leaves the service in the middle of a month, without just cause or excuse, he can recover nothing for his services during that month; and if he is discharged at any time during the month, without just cause or excuse, he is entitled to recover the stipulated wages for the entire month.</p>

Action for Unlawful Detainer. Appeal from the Circuit Court of Jefferson. Tried before the Hon. James B. Head. Action for unlawful detainer, by Otho Ward against R. H. Waite, commenced in a justice’s court'on the 15th January, 1884, and carried by appeal by the defendant to the Circuit Court, where the plaintiff again recovered judgment against the defendant and the sureties on his appeal bonds.

Bill in Equity Inj Executor for Removal of Settlement, Account, etc. Appeal from the Chancery Court of Colbert. Heard, before the Hon. Thomas Cobbs. The bill in this case was filed on the 8th.

<p> Action on Injunction Bond. </p> <p>Appeal from the City Court of Anniston.</p> <p>Tried before the Hon. B. F. Oassady.</p>

Bill in Equity by Landlord, to enforce Claim for Bent • against Goods held by Tenant subject to Mortgage or Conditional Sale. Appeal from the City Court of Decatur, in equity. .Heard before the Hon. War. H. Simpson. The bill in this case was filed on the 10th January, 1890, by Thos.

Action Toy Agent against Principal, for Commissions on Sales. Appeal from the City Court of Birmingham. Tried before the Hon. H. A. Sharpe. This action was brought by the partners composing- the late firm of Cawthorn & Rudisill, against N. K. Fairbanks & Co., a partnership doing business in St. Louis, Mo.; and was commenced on the 13th August, 1889.

Action hj Purchaser for Breach of Contract on Sale of Stock. Appeal from the Circuit Court of Jefferson. Tried before the ITon. James B. Head. This action was brought by E. D. Wolffe against W. EjBerryman, to recover damages for the breach of a special contract for the sale by defendant to plaintiff of fifty shares of stock in the South Anniston Land Company, which he failed to deliver on demand within the stipulated time.

Statutory Detinue for Steam Engine and Mill Machinery. Appear from the Circuit Court of Fayette. Tried before the Hon. S. H. Sprott. This action was brought by A. B. Farquhar against W. A. Seymour & Co. as a partnership, and the individual partners composing -the firm, to recover a steam engine and certain mill machinery, which the plaintiff had sold to them, and for which they had never paid.

Contest as to P’robate of Will. Appear from the Probate Court of Jefferson. Tried before the Hon. M. T. Porter.

<p>1. Garnishment against stockholder, on judgment against corporation; recital as to return of execution. — A judgment creditor of a corporation, with an execution returned “no property found,” may sue out a garnishment against a stockholder, to reach and subject his unpaid subscription for stock (Code, § 2972); but, whether a judgment by default against the garnishee should recite such return of an execution, or show that proof was made of the fact, is not decided.</p> <p>2. Amount of judgment against garnishee. — When a garnishment is sued out on a judgment “for $232.76,” as described in the affidavit and writ, not mentioning costs, a judgment by default against the garnishee which states the sum to be “$252.15, and $8.80, costs of suit,” is erroneous.</p>

Statutory Claim Suit for Stock of Furniture. Appeal from the Circuit Court of Colbert. Tried before the Hon. Henry O. Speake.

Action by Passenger against Railroad Company, for Damages on aecbunt of Personal Injuries. Appeal from the City Court of Birmingham. Tried before the Hon. H. A. Sharpe. This action was brought by Mrs. Sarah D. Winn, to recover damages for ’personal injuries sustained'in alighting from one of the defendant’s street cars in Birmingham on the 19th August, 1889; and was commenced on the 2d October, 1889. The opinion states the- material- averments of the -complaint.

<p> Trespass against Sheriff and Sureties on Indemnifying Bond. </p> <p>Appeal-from the Circuit Court of Jefferson.</p> <p>Tried before the Hon. James B. Head.</p>

<p>1. Appeal by receiver in chancery cause. — An appeal is given as matter of right, only to a party to the canse, or his personal representative (Code, § 3611); and it does not lie in favor of the receiver in a chan•cery cause, from an order or decree allowing claims filed by third persons .against the funds in his hands, arising from the sale of property under the order of the court,.and directing him to pay them.</p>

The appellants in this case, Brown & Street, presented their petition on the 11th April, 1891, to Hon. John B. Tally, the presiding judge of the 9th judicial circuit, which includes the county of Marshall, asking a mandamus against Henry Parris, the county treasurer of Marshall, requiring him to register certain claims held by the petitioners, as claims against the fine and forfeiture fund of the county.

Statutory Action for Unlawful Detainer. Appeal from the Circuit Court of Henry. Tried before the Hon. Jesse M. Carmichael. This action was brought by James A. Balkum and others, children and heirs at law of James W. Balkum, deceased, against Mrs. Eliza Kellum, and was commenced in a justice’s court, on the 19th July, 1889.

Pill in Equity by Mortgagor, for Account and Redemption. Appeal from the Chancery Court of Madison. Heard before the Hon. Thomas Cobbs.

Attachment Suit against Foreign Corporation.. Appeal from the City Court of Decatur. Tried before the Hon. War. H. Simpson. This action was brought by Kavanaugh Brothers, suing as a partnership, against the appellant, a private corporation created under the laws of Tennessee; and was commenced by attachment sued out before the clerk of said City Court, on the 6th April, 1889.

Trespass against Sheriff and Attaching Creditors, Toy Purchaser from Defendant in Attachment. Appeal from the Circuit Court of Henry. Tried before the Hon. Jesse M. Carmichael.

<p>Action on Promissory Note, by Payee against Maker.</p> <p>Appeal from the City Court of Birmingham.</p> <p>Tried before the Hon. H. A. Sharpe.</p>

Action for Lost Baggage, by Quest against Hotel-Keeper: Appeal from the City Court of Birmingham. Tried before the Hon. H. A. Sharpe. ' This action was brought by E. T. Glenn, against J. E. B. Jackson and W. D. McCurdy, to recover damages for the loss of a valise and its contents while the plaintiff was, as he claimed, a guest at the Florence Hotel in Birmingham, of which the defendants were the proprietors.

<p> Action for Breach of Special Written Contract. </p> <p>Appeal from the Circuit Court of Barbour.</p> <p>Tried before the Hon. Jesse M. Carmichael.</p>

Garnishment on J'udgm&ht; Contest of Claim of Exemption. Appeal from the City Court of Decatur. Tried before the Hon. Wm. H. Simpson. The appellant in this case recovered a judgment against John H. Deford, on the 27th August, 1890, before C. A. Stephens, mayor of Decatur and ex officio justice of the peace; and sued out a. garnishment on said judgment against Long & Jervis, as the debtors of said Deford. The judgment was for $11.37, besides costs.

<p>Action for Damages against Employer, by Administrator of Deceased Employe.</p> <p>Appeal from the Circuit Court of Jefferson.</p> <p>Tried before the Hon. James B. Head.</p>

Action for Damages against Railroad Company, by Administrator of Person Killed. Aureal from the City Court of Birmingham. Tried before the Hon. H. A. Sharpe. This action was brought by James McCauley, as administrator of the estate of Henry McCauley, deceased, to recover damages for the personal injuries which resulted in the death of his intestate; and was commenced on the 27th July, 1889.

Action on Promissory Note, hy Indorsee against Maker. Appeal from the Circuit Court of Jefferson. Tried before the Hon. James B. Head.

Bill in Equity iy Stockholder, against Corporation and. Directors. Appeal from the Chancery Court of Tuskaloosa. Heard- before the Hon. Thomas Cobbs. The bill in this case was filed on the 12th February, 1890, by Mrs. Medora Perry, the widow of W. H. Perry, both individually and as the personal representative of his estate, in behalf of herself and other stockholders of the Tuskaloosa Cotton Seed Oil Mill Company, a private corporation; against said corporation, JD.

<p>1. Fraud and deceit on sale of mule.^-On the sale of a mule, which the seller represents to be “all right,” though he knows that the animal is “moon-eyed,” a disease which seriously affects the eye-sight and impairs its value one half, the purchaser may maintain an action for damages on account of the fraud and deceit, and recover to the extent of the diminished value-; and it can not be said that the defect was patent, when the purchaser did not discover it on examination, after a bystander had told him that there seemed to be something the matter with the animal’s eyes, and the seller himself testifies that he was on his guard against making representations in regard to them.</p>

Action on Written Contract for Sale, of Optional Rights. Appeal from the Circuit Court of Bibb. The record, does not show the name of the presiding judge. cited Willard v. Tayloe, 8 Wall. 557; Moore v. Sweet, 16 Ad. & EL, N. S., 493; 3 ling.

<p>1. Proof of physical condition as continuous fact. — Where plaintiff sues to recover agreed compensation for work and labor doné, and the defendant, denying the contract, testifies that plaintiff did not at the time have the necessary health and strength to earn such wages as he claims were agreed to be paid, a witness for plaintiff can not be allowed to testify that plaintiff, while working for him sis or eight years previously, “was a stout and healthy man, and able to do good, work.”</p>

Action on Promissory Note, by Payee against Maker. Appeal from the City Court of Anniston. Tried before'the Hon. B. F. Oassady. This action was brought by John J. Seay against W. A. Palmer, and was commenced on the 18th July, 1890.

Petition for Mandamus to Prolate Judge on Refusal of License to Retail Spirituous Liquors. Appeal from the City Court of Birmingham. Tried before the Hon. W. W. Wilkerson. The appellant in this case, W. J. Love, made application to the probate judge for a license to retail spirituous liquors in the town of Pratt Mines; and his application was accompanied with the statutory affidavit, recommendation of householders, &c., prescribed by law in such cases.

Action by County, on Bond of Hirer of County Convicts. Appeal from the Circuit Court of Chambers. Tried before the Hon. James R. Dowdell. Action on penal bond, assigning, breaches. Demurrer to complaint, and to special pleas. Rulings on demurrer assigned as error. Facts stated in opinion. cited State v. Metcalf 75 Ala. 42; Arrington v. Morgan, 75 Ala. 606; Ex parte Buckalew, 84 Ala. 460; Ex parte Crews, 78 Ala. 457; Mullenv.

Petition for Supersedeas of Execution. Appeal from the City Court of Anniston. Tried before T. R. Matthews, as special judge. This was a petition by Mrs. Louisa Reid and others, for the supersedeas of an execution against them on a judgment in favor of Oomer & Trapp. The court overruled a demurrer to the petition, and the judgment thereon is now assigned as error.

Action on Common Counts, and on Promissory Notes. Appeal from the City Court of Decatur. Tried before the Hon. Wm. H. Simpson.

<p> Bill in Equity for Reformation of Conveyance, and Removal of Cloud on Title to Land. </p> <p>Appeal from the Chancery Court of Jefferson.</p> <p>Heard before the Hon. Thos. Cobbs.</p> <p>cited Rea v. Longstreet, 54 Ala. 294; Tyson v. Brown, 64 Ala. 244; 1 Brick. Digest, 615, § 42.</p>

Statutory Action in nature of Ejectment. Appeal from the Circuit Court of Bullock. Tried before the Hon. Jesse M. Carmichael. This action was brought by Lewis Clark and three others, half brothers and sisters of Sallie Clark, deceased, against Charles Cox and others, to recover the possession of a tract of land particularly described in the complaint, or the plaintiffs’ interest therein; and was commenced on the 9th July, 1890.

Action on Promissory Note, Try Payee against Maher. Appeal from the Circuit Court of Chilton. Tried before the Hon. Jas. E. Dowdell. This action was brought by Fite, Porter, Lyles & Co., suing as a partnership, against John Garner and his wife, and was commenced on the 4th February, 1888.

Statutory Claim Suit. Appeal from the Circuit Court of Shelby. Tried before the Hon. Leroy F. Box. This was a statutory trial of the right of property in and to-a small stock of goods, with a quantity of flour, meal, bran,, and other commissary supplies, and numerous other articles of personal property, between B. B. Warren, plaintiff in execution against J. B. Randall and O. W. Cary, and E. L. Nelson as claimant.

Action on Promissory Notes, hy Payee against -Makers Appeal from the Circuit Court of Montgomery. Tried before the Hon. John P. Hubbard. This action was brought by S. C. Marks against Robert J. Chambers and John W. Moore, and was commenced on the 15th May, 1890. The action was founded on the defendants’ three promissory notes for $500 each, dated June 14th, 1886, and payable four, five and six years after date.

Action by Workman against Employer, for Damages on Account of Personal Injuries. Appeal from the City Court of Anniston. Tried before the Hon. B. F. Cassady. This action was brought by Wm. H. Dickey against the appellant, a private corporation, to recover damages for personal injuries received by plaintiff while in defendant’s service; and was founded on the statute — -Code, § 2590.

Aotion on Note given for Rent. Appeal from the Circuit Court of Cleburne. Tried before the Hon. Leroy E. Box. This action ivas brought by S. P. Baber, as administrator de bonis non of the estate of IT.

Action for Damages, on account of Injuries to Mule. Appeal from the City Court of Decatur. Tried before the Hon. Wm. H. Simpson.. Action for damages by Ellsworth Lacy against E. O. Hurd, on account of injuries to plaintiff’s mule caused by a barbed wire, which the defendant had stretched around the uninclosed sides of a corner lot in Decatur. The defendant pleaded not guilty and contributory negligence, and issue was joined on these pleas.

Garnishment in aid of ■ Pending Action. Appeal from the City Court of Mobile. Tried before the Hon. O. J. Semmes. The appellant in this case, John Craft, doing business under thé name of Craft & Co., commenced suit by summons and complaint, in that name, against Charles H. Bostwick; and sued out garnishments, June 28th, 1889, in aid of the action, against John F. Summersell and others, as the debtors of said Bostwick.

<p>1. When appeal lies. — There is no statute which gives an appeal from an interlocutory order dismissing a garnishment, which was sued out in aid of a pending action, and was dismissed, before final judgment, because it appeared that the garnishee was one of the plaintiffs.</p>

Action on Common Money Counts. Appeal from the Circuit Court of Marengo. Tried before the Hon. Wm. E. Clarice. This action was brought by B. Chapman as the administrator of the estate of Andrew J. (or Andrew A.) Amason, deceased, against A. G. Barnes, who was a nephew of said Amason; and was commenced on the 5th October, 1888.

Statutory Detinue by Mortgagee, against Purchaser at Execution Sale against Mortgagor. Appeal from the Circuit Court of Cleburne. Tried before the Hon. Leroy F. Box. This action was brought by Draper, Matthis & Co., suing as a partnership, against Stephen Nixon, to recover a wagon and a yoke of oxen; and was commenced in a justice’s court, on the 5th April, 1888.

<p>Statutory proceeding against stock running at large; notice by publication to unknown owner. — To sustain summary proceedings under a local statute against stock running at large, a-substantial compliance with the requirements of the law must be affirmatively shown by the record; and where the statute requires notice, if the owner is unknown, “to be posted in three public places near the lands of the complainant,” the constable’s return, stating that he “executed the within by posting three notices near the place where taken up,” is not sufficient proof that the statutory notice was given.</p>

Action on Written Contract for Payment of Money. Appeal from the Circuit Court of Montgomery. Tried before the Hon. John P. Hubbard.

<p>1. Estoppel by judgment or decree. — If, on final settlement of the accounts of a deceased executor, the administrator de bonis non has him charged with the proceeds of personal property sold under a probate decree, .he is estopped to deny the validity of the sale, or to maintain an action against the purchaser for the property.</p> <p>2. Settlement of executoiJs accounts; presumption in favor of judgment or decree. — When an executor voluntarily appears, and files his accounts and vouchers for a final settlement, after the lapse of ten years from the grant of his letters, the presumption will be indulged, in favor of the settlement, that his authority had ceased by resignation or removal, or that the debts had been paid and the estate was ready for final settlement and distribution.</p> <p>3. Settlement of accounts of deceased executor. — When an executor voluntarily appears, and files his accounts and vouchers for final settlement, but dies before the settlement is made, the court may appoint a personal representative of his estate, and an administrator de bonis non of the testator’s estate; and if they voluntarily appear, and proceed with the settlement, the court has jurisdiction to render a final decree.</p>

<p> Bill in Equity for Specific Performance of Contract for Sale of Lands by LLusband to Wife. </p> <p>Appeal from the Chancery Court of Tallapoosa.</p> <p>Heard before the Hon. S. K. McSpadden.</p> <p>cited Bell v. Bell, 37 Ala. 53b; Caford u. Strauss, 89 Ala. 283 ; Harper v. Rudd, 89 Ala. 371; 53 Mich. 536; 1 Amer. &Eng. Encyc. of Law, 250.</p>

Action on Attachment Bond. Appeal from the City Court of Mobile. Tried before the Hon. O. J. Semites. . This action was brought by Marx Bros., late partners doing-business in Mobile as merchants, against L. Strauss and J. H. Leinkauff, as sureties for IT. B. Claffin & Co. on an attachment bond.

Attachment against Non-Resident. Appeal from the Circuit Court of Franklin. Tried before the Hon. Henry C. Speake. This action was brought by Mrs. W. A. Steadham, against Alfred Parrish, and was commenced by attachment, sued out on the ground that the defendant was a non-resident.

Action against Stockholder, for Goods sold to Corporation. Appeal from the City Court of Decatur. Tried before the Hon. Wat. H. Simpson. This action was brought by Lee & Mangum, suing as partners, against Lorenzo Cory, on the facts stated in the opinion.

<p> Action on Common Goimts. </p> <p>Appeal from the Circuit Court of Choctaw.</p> <p>Tried before the Hon. Wm. E. Clarke.</p>

Action by Purchaser against Vendor of Soda- Water ' Apparatus. Appeal from the Circuit Court of Jefferson. Tried before the Hon. James B. Head. This action was brought by J. H. Davis against Peckham, DeWitt & Co., a partnership engaged in business in Baltimore; and was commenced by attachment, sued out on the 9th September, 1890, on the ground of the defendants’ non-residence.

Action by Vendor against Purchaser of Goods. Appeal from the Circuit Court of Lee. Tried before the Hon. Jesse M. Carmichael. This action was brought by Smith, Grainger & Cantrell, suing as partners, against Penn & Co., or Penn & Montgomery, a partnership composed of T. L. Penn and II. B. T. Montgomery; and was commenced on the 14th October, 1889.

Action on Promissory Note, by Payees against Makers. Appeal from the City Court of Anniston. Tried before the Hon. B. F. Cassady. This action was brought by J. B. Ingram, R. M. Ingram and J. J. McPherson, as joint plaintiffs, against W. F. Hanna and E. H. Hanna, and was commenced on the 6th June, 1890.

Action on Verbal Contract for Bent, and Damages for Breach. ‘Appeal from the City Court of Mobile. Tried before the Hon. O. J. Semmes. This action was brought by Hettie White against Marshall P. Levy, and was commenced on the 5th February, 1890. The complaint contained ten counts, each of which claimed $200, the first installment of rent alleged to be due under a verbal contract for the lease by the plaintiff'to the defendant of certain premises in the city of Mobile.

<p>1. Where prosecution must he instituted. — A prosecution to recover the statutory penalty, in the name of the county against a defaulting road hand, must be instituted before a justice of the peace (Code, § 1425); and when the record does not show that it was so commenced, the county can not complain of a judgment of acquittal rendered in the Circuit Court.</p>

Statutory Claim Suit for Stock of Qoocls. Appeal from the Circuit Court of Dale. Tried before the Hon. Jesse M. Carmichael. This was a statutory trial of the right of property in and to a stock of goods, between Kendall & Co., plaintiffs in attachment against Bell & Stallings, and Mrs. S. A. Bell as claimant. 'The plaintiffs’ attachment was levied on the goods on the 27th .September, 1889, while yet in the store-house in which Bell & Stallings had conducted their business.

Bill in Equity by Purchaser at Tam- Collector's Sale, to compel Transfer of Stock on Books of Corporation. Appeal from the City Court of Birmingham, in equity. Heard before the Hon. IT. A. Siiarpe.

Trover l>y Vendor, against Sitb-Purchaser of Goods. Appeal from the Circuit Court of Butler. Tried before the Hon. John P. Hubbard. This action was brought by H. C. Keeble & Co., suing as partners, against T. W. Traywick, to recover dámages for the alleged conversion by the defendant of a quantity of goods, which the plaintiffs; who were wholesale merchants in Selma, had sold on credit to one W. R. Yeldell, and wliich the defendant claimed to have bought from said Yeldéll.

<p> Action on Common Counts,for Goods Sold and Delivered. </p> <p>Appeal from the Circuit Court of Mobile.</p> <p>Tried before the Hon. Wm. E. Clarke.</p> <p>cited McIntyre v. State,. 55 Ala. 167; Armstrong v. Burford, 51 Ala. 410; Benjamin on Sales, 404; Tied. Sales, §306; Smith v. Mawhood, 14 Mees. & W. 452; Johnson v. Hudson, 11 East, 180; Hill v. Smith,. Morris, Iowa, 75; Brown v. Duncan, 10 B. & C. 93 ; 15 Nev. 136; 17 Nev. 87; Armstrong v. Toler, 11 Wheat. 260; 3 B. & Ad. 222; 3 Mo. Ap. 463 ; 20 Barb. 429; 92 Penn. St. 393 14 Ohio, 331; 17 B. Monroe, 245; 46 Iowa,302; 17 Howard,, 236; Rasherryv. Pulliam. 78 Ala. 191; 16 Mass. 94; 5 Hill, N. Y. 491; 13 Penn. 13; Í7 Barb. 378.</p> <p>cited Shippy v. Eastwood, 9 Ala. 198; Butler v. Lee, 11 Ala. 885; Pettit v. Pettit, 32 Ala. 288; McGehee v. Lindsey, 6 Ala. 16; Gunter v. Leckey, 30 Ala. 589; Milton v. Haden, 32 Ala. 30.</p>

<p>1. Injunction of trespass, as between street raihoay companies. — Where two street railway companies are operating their respective roads under a franchise granted by legal authority, their tracks crossing each other at the intersection of two streets, a court of equity will not entertain a bill for injunction by one of them, to restrain the other from laying a double track at. the crossing, unless a case of irreparable injury is averred and proved, or other special facts showing the inadequacy of legal remedies.</p>

Action on Promissory Note, by Payee against Maker. Appeal from the Circuit Court of Calhoun. Tried before the Hon. Leroy F. Box. This action was brought by J. R. Nowlin against Mrs. O. M. Wesson, and was founded on the defendant’s promissory note under seal for $128.43, which was dated on the 29th £?] February, 1885, and payable one day after date, to the plaintiff or order. The defendant pleaded want of consideration, and issue was joined on that plea.

Action on Promissory Note, by Indorsee'against Indorser. Appeal from the Circuit Court of Jefferson. Tried before the Hon. James B. Head. This action was brought by the Birmingham National Bank, against Mrs. B. C. Morris as the administratrix of the estate of B. O. Scott, deceased, who was her former husband; and was commenced on the 22d March, 1890.

Action for Damages by Passenger, for Personal Injuries. Appeal from the City Court of Birmingham. 'Tried before the Hon. H. A. Sharpe. This action was brought by Miss Nollie O. Hill, against the appellant corporation, to recover damages for personal injuries sustained by plaintiff, on the 27th September, 1887, while travelling as a passenger on defendant’s road between Sulphur Springs and Birmingham; and was commenced on the 7th February, 1888.

Bill in Equity !>y Purchaser, for Rescission of Contract of Sale. Appeal from the Chancery Court of Jefferson. Heard before the Hon. Thomas Cobbs. The bill in'this case was filed on the 25th July, 1888, by L. Bradfield against the Elyton Land Company, and sought the rescission of a contract for the purchase by complainant from •said company of certain lots or parcels of land in Birmingham.

<p> Tresspass Quare Olausum Fregit. </p> <p>Appeal from the Circuit Court of Walker.</p> <p>Tried before the Hon. Jas. B. Head.</p>

Trespass against Attaching Or editors, by Purchaser from-Debtor. Appeal from the Circuit Court of Etowah. Tried before the Hon. John B. Tally. This action was brought by Myrick & Bowman, suing as-partners, against A. Ullman and others, to recover damages, for an alleged trespass; and was commenced on the 17th, August, 1888.

Bill in Equity for Injunction against Municipal Corporation. Appeal from the Chancery Court of Montgomery. Heard, before the Hon. John A. Poster. The bill in this case was filed by Joseph S. Winter against the City Council'of Montgomery, and sought relief as stated in the opinion of the court. The chancellor dismissed the bill, ;on demurrer, for want of equity; and his decree is here assigned as error. cited E. & W. Railway Co. v. E. T., Va. (& Qa.

Bill in Equity for Damages, Discovery, and Account. Appeal from the Chancery Court of Jefferson. Heard before the Hon. Thomas Cobbs.

<p>1. Service of process; description of defendant. — In an action against A. j. Veasey, a return showing service of process on “Jack Veasey, the defendant,” is sufficient to support a judgment by default.</p>

Bill in Equity by Purchaser, for Rescission of Contract of Sale. Appeal from the Chancery Court of Jefferson. Tried before the Hon. Thomas Cobbs. The bill in this case was filed on the 11th April, 1889, by the appellant corporation against the Elyton Land Company, and sought the rescission of a contract for the purchase by the complainant, from the defendant, of two blocks of land in Birmingham.

Bill in Equity to establish Resulting Trust in Lands, or hold Purchaser liable as Trustee in invitum. Appeal from the Chancery Court of Sumter. Heard before the Hon. Vm. H. Tayloe.

Action for Malicious Prosecution. Appeal from tbe City Court of Birmingham. Tried before the Hon. H. A. Sharpe. This action was brought by Carl Dietrich (or Ditterick) against George Lunsford, to recover damages for a malicious prosecution on a charge of larceny ; and was commenced on the 9th December, 1886. The charge of larceny was based on the plaintiff’s abstraction of the plans and specifications of a building, which Lunsford was erecting in Birmingham.

Bill in Equity for Account of Iron Ore Mined and Bemoved. Appeal from the Chancery Court of Cherokee. Heard before the Hon. S. K. McSpadden. The opinion of the court in this case seems to state all the material facts. The transcript has never come to the hands of the reporter.

Statutory Action in nature of Ejectment. Appeal from the Circuit Court of Tuskaloosa. Tried before the Hon. S. H. Sprott.

<p>1. Joinder of creditors as plaintiffs. — By the common practice for thirty years, which this court has approved, two or. more creditors by simple contract may join as complainants in a bill to set aside on the ground of fraud a conveyance executed by their common debtor.</p> <p>2. When bill may be Med; allegations as to maturity of debts. — A creditor without a lien, or by simple contract only, can not maintain a bill in equity to set aside a fraudulent conveyance by his debtor (Code, § 3544), until the maturity of his debt; but, where several creditors join in such bill, alleging the sale and delivery of goods by each of them to the debtor, and adding, “and the prices for the same are owing, unpaid and due,” this, though not very specific, is sufficient on demurrer to show that the debts were due when the bill was filed.</p> <p>3. Averments of fraud. — In a bill which seeks to set aside, on the ground of fraud, a conveyance of its stock of goods by an insolvent corporation to its president, alleging that he had purchased the stock of goods from the assignee of a partnership which had failed, and delivered them to the corporation in payment of his subscription to its stock; that the goods were afterwards transferred to him for the purpose of reimbursing the amount so paid and subscribed; that he paid nothing to the company for them; that neither the company nor its creditors received any benefit from the transfer ; that the transfer was without warrant of law, or color of right, being without any legal or valid consideration; a sufficient statement of the facts constituting the alleged fraud is set forth.</p> <p>4. Sworn answer from one of two defendants. — In a bill which seeks to set aside a conveyance on the ground of fraud, an answer under oath may be required from the grantee, although it is not required from the other defendant.</p> <p>5. Description of plaintiffs’ claims in bill. — The complainants being creditors by simple contract only, and seeking to set aside a fraudulent conveyance of his property by their debtor, th e bill must set forth the character of their respective demands, whe ther evidenced by writing or existing in open account, and when due</p>

Action l)y Workman against Employer, for Damages for Breach of Contract. Appeal from tbe Circuit Court of Calhoun. Tried before the Hon. Leroy F. Box. This action seems to have been brought by W. P. O’Brien against the Anniston Pipe-Works, to recover compensation for work and labor done by plaintiff for defendant, or damages for an alleged breach of the contract between them. The transcript has not come to the hands of the reporter, and he can only publish the opinion.

Bill in Equity to Establish Set-off against Judgment; Gross-Bill to enforce Trust in Lands. Appeal from the Chancery Court of Montgomery! Heard before the Hon. John A. Foster.

Action by Vendor for Price of Engine and Boiler. Appeal from the Circuit Court of Jefferson. Tried before the Hon. James B. Head. This action was brought by Cleveland & Hardwick, suing as partners, against G. H. Ellerbee, to recover the price of an engine and boiler alleged by plaintiffs to have been sold by them to Minnegerode & Ellerbee, a firm of which defendant was at the time a member.

Bill in Equity to open Judgment, and for Account and ' Redemption under Mortgage. Appeal from the Chancery Court of Montgomery. Heard before the Hon. John A. Foster. The bill in this case was filed on the 2d January, 1882, by Mrs. Lucy B. Noble, wife of Edward F. Noble and daughter of Ben. H. Micou, against Moses Brothers, a partnership engaged in business in Montgomery, and on complainant’s death pending the suit, it was revived in the name of her administrator.

Action on Promissory Note, ly Payee against Malcer. Appeal from the Circuit Court of Jefferson. Tried before the Hon. James B. Head.

Dill in Equity hy Stockholder in Domestic Corporation, for Injunction against Foreign Corporation owning Majority of Stock. Appeal from the Chancery Court of Jefferson. Heard before the Hon. Tiiomas Cobbs. The bill in this case was filed on the 21st January, 1889, by Edw.

Action for Breach of Contract for Work and Labor. Appeal from the Circuit Court of Etowah. Tried before the lion. John B. Tally. This action was brought by the appellants, suing as partners, against the Tennessee & Coosa Railroad Company, and was commenced on the 23d August, 1888.

Bill in Equity to enforce Vendor's Lien on Land. Appeal from the Chancery Court of Jackson. Heard before the Hon. Thomas Cobbs.

<p> Action for Breach of Contract for Work and Labor. </p> <p>Appeal from the City Court of Selma.</p> <p>Tried before the Hon. Jona. Haralson.</p> <p>cited Freeman on Judgments, § 288; Duchess of Kingston's Case, 2 Smith’s L. O. 609 (573); 1 Greenl. Ev. §§ 528-9; Chamberlain v. Caillard, 26 Ala. 504; Gilbreath v. Jones, 66 Ala. 129; McCall v. Jones, 72 Ala. 368; Haas v. Taylor, 80 Ala. 459; Robinson v. Bullock, 66 Ala. 548; Strauss v. Meertief 64 Ala. 299; Dicks v. Belsher, 80 Ala. 369.</p> <p>cited S. cfo N. Ala. Railroad Co. v. Henlein, 56 Ala.. 368; Foster v. Napier, 73 Ala. 595; O'Neal v. Brown, 21 Ala. 482; 1 Brick. Digest, 26, § 89; 3 lb. 25, §§ 42-3.</p>