Volume 94 — Alabama Reports

From the Circuit Court of Hale. Tried before the Hon. John Moore. The defendant in this case, Major Wells, was indicted for the murder of John Larkin, by shooting him with a gun or pistol; was convicted of murder in the second degree, and sentenced to the penitentiary for the term of 22 years. The indictment was found at the Spring term, 1889, and the defendant was then arraigned and pleaded not guilty; but the case was continued.

From the Circuit Court of Henry. Tried before the Hon. Jesse M. Carmichael. The defendant in this case, Thomas O. Askew, was indicted for the murder of Ned Grice, by shooting him with a pistol; was convicted of murder in the second degree, and sentenced to the penitentiary for the term of twelve years.

From the Circuit-Court of Dale, on change of venue from Henry. Tried before the Hon. Jesse M. Carmichael. The defendant in this case, John L. Domingus, was indicted, jointly with Parker Powell, for the murder of John M. Stringer, by sjiooting him with a pistol; and being tried separately, after a change of venue to Dale county, was convicted of murder in the second degree, and sentenced to the penitentiary for the term of ten years.

From the Criminal Court of Jefferson. Tried before the ITon. S. E. Greene. The defendant in this case, Bale Pate, a negro, was indicted for the murder of John Orr, another negro, by shooting him with a pistol; was convicted of murder in the second degree, and sentenced to the penitentiary for the term of ten years.

From the City Court of Anniston. Tried before the Hon. B. F. Cassady. The defendant in this case, James Jolly, was indicted for an assault on James Powell, with the intent to murder him; was convicted, and was sentenced by the court to imprisonment in the penitentiary for the term of three years.

Prom tbe Circuit Court of DeKalb. Tried before the lion. John B. Tally. The defendant in this case, Albert Perry, was indicted for the murder of Lee Williams, by shooting him with a gun; was convicted of manslaughter in the first degree, and sentenced to the penitentiary for the term of seven years.

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

Jona. Haralson, judge of the City Court of Selma, requiring him to make an order for a writ of 'habeas corpus, at the instance of Lewis Jones, the petitioner, who was in custody under a charge of murder, to inquire into the regularity of his commitment, and to discharge him or grant him bail. cited Ex parte Mahone, 30 Alq. 49; Ex parte Champion, 52 Ala. 311. cited Ex parte Chaney, 8 Ala. 424; Ramagnano v. Croole, 85 Ala. 226; Dunbar v. Frazier, 78 Ala. 538; High’s Extra.

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

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

From the Circuit Court of Limestone. Tried before the Hon. Henry O. Speake. The defendant in this case, Richard Bostic, was indicted jointly with John Puryear for the murder of Jesse Brock, “by striking him on the head with a rock, stick, or other hard substance to the grand jury unknownwas convicted of manslaughter in the first degree, and sentenced to the penitentiary for the term of five years. The opinion- states the circumstances attending the killing.

From the Circuit Court of Butler. Tried before the Hon. John P. Hubbard. The defendant in this case, Peter McQueen, was indicted for the murder of Ab Chambers, by shooting him with a gun; was convicted of murder in the second degree, and sentenced to the penitentiary for the term of 25 years. Before entering on the trial, the defendant submitted a motion to quash the special venire, and excepted to the overruling of his motion.

From the City Court of Montgomery. Tried before the Hon. Thos. M. Arrington. The defendant in this case, Wesley Johnson, was indicted for an assault and battery on his wife. On the trial, Mrs..

From the Circuit Court of Bike. Tried before the Hon. John P. Hubbard. The defendant in this case, Lige Hornsby, a negro, was indicted for the murder of Jere Perdue, another negro, “by stabbing him with a knife or other weaponwas convicted of murder in the second degree, and sentenced to the penitentiary for the term of 15 years.

From the Circuit Court, of Conecuh. ■ Tried before the Hon. John P. Hubbard. The defendant in this case, George Mitchell,was indicted for placing an impediment or obstruction on or under the track of the Louisville & Nashville Railroad Company, near the trestle across Murder Ci’eek in said county, about two miles from Evergreen.

From the City Court of Montgomery. Tried before the Hon. Thos. M. Arrington. Indictment against William Rogers for the murder of Henry Mayes. Plea of not guilty, and issue thereon. Verdict, of guilty of murder in the first degree, and judgment and sentence of death. The only matters presented for revision, as shown by the record and the bill of exceptions, are stated in the opinion of the court.

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

<p> Indictment for Carrying Concealed Weapons. </p> <p>1. Carrying pistol in hand-satchel. — A conviction may be had for carrying a pistol concealed about the person (Code, § 3775), on proof that the defendant carried it in a hand-satchel, which was suspended from his shoulder by a strap around his neck, although the satchel was locked and the key kept in his pocket.</p>

<p>From the City Court of Montgomery.</p> <p>Tried before the Hon. Taos. M. Arrington.</p> <p>cited Chastang v. State, 83 Ala. 29; Cagle v. State, 87 Ala. 38; Bow-don v. State, 93 Ala. 61; 1 Bish. Or. Fro., § 246.</p>

Petition by Enoch Riley for the writ of habeas corpus, to procure his discharge from the custody of the sheriff of Tuskaloosa county, and the writ of certiorari to review the proceedings had before Hon. Wm. G. Cochrane, the judge of probate of Tuskaloosa county, who had refused to discharge the petitioner. The opinion states the facts.

Erom the Circuit Court of Conecuh. Tried before the TIon. John P. Hubbard. The defendant in this case, Charlie Jackson, was indicted, jointly with Ben Aarons, for an assault on Aleck Thomas, with the intent to murder him ; and a severance having been granted, he pleaded not guilty, but the jury returned a verdict of “guilty,” and imposed on him a fine of $250.

From the City Court of Anniston. Tried before the Hon. B. F. Cassady. The indictment in this case was found in October, 1891, and charged that the defendant, Alex.

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

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

From the Circuit Court of Escambia. Tried before the Hon. John P. Hubbard. This was a prosecution against Joe Owens and Prudence Beaty for living together in a state of adultery or fornication, was commenced in the County Court, on the 12th November, 1891, and transferred to the Circuit Court for a trial by jury. In that court, the defendants were jointly tried, issue being joined on the plea of not guilty, and were convicted.

From the Circuit Court of Pike. Tried before the Hon. John P. Hubbard. The defendant in this case was indicted for the larceny of four dollars in silver from the person of John Hobdy.

Prom the Circuit Court of Bibb. Tried before the Hon. Jas. R. Dowdell. The defendant in this case was indicted for the larceny, from a railroad car, of five hundred packages of garden-seed,, the personal property of E. N. Cottingham & Co., a mercantile partnership doing business at Blocton, in said county of Bibb.

<p>From the Circuit Court of Russell.</p> <p>Tried before the Hon. Jesse M. Carmichael.</p>

<p>From the Circuit, Court of Lee.</p> <p>Tried before the Hon. Jesse M. Carmichael.</p>

From the City Court of Montgomery. Tried before the Hon. Taos. M. Arrington. The defendant in this case was indicted for the larceny of fourteen cows, the personal property of Jack Smith; was convicted, and sentenced to the penitentiary for five years. The opinion states the material facts in connection with the ruling which works a reversal of the case.

<p> Indictment for Carrying Concealed Weapons. </p> <p>1. Apprehension of attack as defense; officer having legal process to execute. — Under the statute against carrying concealed weapons (Code, § 3775), the only recognized exception is in favor of a person who has “good reason to apprehend an attackand this exception is not absolute, but is only matter for the consideration of the jury, who may allow it in justification or mitigation, or may disallow it entirely; nor does the exception extend to an officer, having legal process to execute, who fears he may be resisted.</p>

Heard before the Hon. Wm. H. Tayloe. The bill in this case was filed on the 9th July, 1890, by Meyer I. Goldsmith, as a creditor of the late firm of A. & B. Moog, against said B. Moog, the surviving partner, and Eiehold Bros. & Weiss and others; and sought to subject to ' the payment and satisfaction of complainant’s debt against said firm certain real estate which had been used by the firm of A. & B. Moog in their business, though the legal title to the same was conveyed to…

Heard before the Hon. Wm. H. Tayloe. The original bill in this case was filed on the 29th November, 1889, by the Mobile Savings Bank, a domestic corporation, and Wm.

Tried before the Hon. Wii. E. Clarke. This action was brought by H. C. Dismukes against the Mobile & Ohio Bailroad Company, as a common carrier, to recover damages for the defendant’s failure to deliver to him certain goods, of the value of $40.80, which were received by the defendant at Cairo, Illinois, consigned to the defendant at Sunny South, Alabama, a station on the Mobile & Birmingham railroad.

the Circuit Court of Baldwin. Tried before the Hon. Wm. E. Clarke. This action was brought by Charles Torre.v, as executor of the last will and testament of John Bowen, deceased, against Elisha Eorbes and James A. Bishop, to recover the possession of a tract of land containing 640 acres, particularly described in the'complaint; and was commenced on the 25th November, 1890.

Tried before the Hon. Wm. E. Clarke. This action was brought by Abe Woodson against the ap^ pellant corporation, to recover damages for personal injuries sustained by plaintiff while in defendant’s employment, which necessitated the amputation of one of his arms. The accident occurred on the 12th June, 1890, and the action was commenced o« the 5th November, 1890.

Tried before the Hon. James R. Dowdell. This action was brought by Ignatius Poliak against J. W. Echols, tenant in possession, to recover a house and lot in Tuskegee, particularly described in the complaint; and was commenced on the 22d February, 1S90. W. P. Caldwell, the landlord of Echols, intervened and defended the suit. The plaintiff claimed as purchaser at sheriff’s sale under execution against Mrs. A. M. Kelly.

Tried before the Hon. Wji. E. Clarke. ' This action was brought by Carrie I. Grady against the several persons composing the firm of M. Ibach & Co., to recover for the use and occupation of certain premises in the city of Mobile, from November, 1883, to February, 1890; and was commenced on the 10th October, 1890.

<p> Prosecution for Violation of Municipal Ordinance. </p> <p>1. License tax in Mobile on retailers of cigars. — The business of a wholesale and retail grocer does not necessarily include the business of selling cigars by retail, but a separate license tax may be imposed for each ; and the fact that the grocer’s license is fixed at the maximum rate allowed by law, does not affect his liability for the special tax under another ordinance.</p>

■ Tried before the Hon. O. J. Sembles. This action was brought by S. Richard & Sons, suing as partners, against Joseph Espalla, as the administrator of the estate of Mrs. Julia Ryan, deceased; was founded on an account for goods §old and delivered, amounting to $587.37, and was commenced on the 21st February, 1890.

Heard before the Hon. Vm. H. Tayloe. The bill in this case was filed on the 13th September, 1890, by Peter F. Alba against Joseph C. Strong, to enforce the specific performance of an alleged agreement for the sale of a tract of land by the -defendant to the complainant. The defendant was the trustee in a deed of assignment for the benefit of creditors executed by the Danner Land and Lumber Company, which had become insolvent.

Tried before the Hon. John B. Tally. This action was brought by Thomas G. Rucker against Monroe Hawes, to recover the possession of a tract of land containing 130 acres, with damages for its detention by way ■of rent; and was commenced on the 20th December, 1888.

Heard before the Hon. Thomas Cobbs. . The opinion contains a full statement of the facts, and renders any additional statement unnecessary, while the briefs of counsel state the facts deemed material to the case us presented by their points and authorities.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 21st April, 1891, by Nicholas Hardy, against A. W. Wingo and L. B. Perkins, and sought (1) an injunction against the further prosecution of two actions of unlawful detainer, to recover the possession of a quarter-section of land, which Wingo had leased to complainant for a term of years with a view to the mining and removal of the iron ore on the land; (2) to compel the specific performance of a…

<p>Appeal from the Probate court of Madison.</p> <p>Heard before the Hon. Thos. J. Taylor.</p> <p>Motion to dismiss the appeal, on facts stated in the opinion of the court.</p>

Tried before the Hon. Jesse M. Carmichael. This action was brought in the name of Lee county against Robert J. Trammell, and was commenced on the 1st October, 1888.

Tried before the Hon. Wm. E. Clarke. This action 'was brought by James George against the Mobile & Ohio Railroad Company, to recover damages for personal injuries sustained by plaintiff while engaged in defendant's service as a brakeman; and was commenced on the 27th August, 1889.

Tried before the TIon. Leroy F. Box. On the 28th October, 1890, the appellee in this case, W. H. Bayne, sued out a writ in an action of statutory detinue against W. O. Spier, to recover 2,258 pounds of seed-cotton; and the writ was executed on the same day.

<p> Action for Damages, T)y Ejected Passenger against Railroad Company. </p> <p>1. Objection io pari of damages claimed; demurrer. — In an action to recover damages, a demurrer does not lie to the complaint, or to any entire count, because some of the special damages claimed are not recoverable; the remedy is by motion to strike out, by objection to evidence when offered, or by a request for instructions to the jury.</p> <p>‘¿. Conduct of flag-man, at instance of conductor; variance. — Under a complaint which alleges that the conductor wrongfully compelled plaintiff to leave the train, plaintiff may prove the conduct of the flag-man in compelling him to leave the car, when the flag-man himself testifies that ho was authorized by the conductor to put plaintiff off; it being also matter of common knowledge that it is one of the ordinary duties of flag-men and brakemen to assist in carrying out the orders of the conductor with respect to refractory passengers.</p> <p>3. Admissibility of declarations; special damages for abusive language. Damages can not be allowed on account of harsh and abusive language used by the brakeman in compelling plaintiff to leave the car, when not specially claimed in the complaint ; but evidence of the use of such language, accompanying the act of ejecting, is admissible as a part of the res gestie.</p> <p>4. To what- witness may testify. — A witness who was present when plaintiff was compelled to leave the car, though he claimed that he had paid his fare, can not be allowed to testify that the conductor “seemed anxious to get the matter settled”' — “that his actions showed he was doing his utmost to get the matter settled without further trouble” — “that in his opinion the conductor behaved as well as a man could do in such a casethese statements being the mere opinion and conclusion of the witness, and not short-hand renderings of facts.</p> <p>5. Special damages for expenses resulting from delay; variance. — In an action for damages by a passenger wrongfully ejected from a railroad train, he may claim and recover special damages for expenses necessarily incurred “for telegrams necessary to inform his family and business associates of his whereaboutsbut, under such an averment and claim, there must be a strict correspondence between the allegation and the proof, and he can not prove or recover for the price of a telegram sent to his brother in a neighboring city, requesting him to attend to a matter of urgent business which his enforced delay prevented him from attending to in person, there being no evidence that his brother was a member of his family, or connected in business with him.</p> <p>(i. Damages for injured feelings and imputation, on character. — Plaintiff having been' compelled by the conductor to leave the train 'on which, he was travelling, against his protest and claim that he had paid his” fare, which the conductor denied, the charge is necessarily derogatory to plaintiff’s character as an honest man, without regard to the particular language used, and authorizes the jury to infer that his pride and feelings were wounded, and that he suffered mental distress and humiliation, as a basis for the claim of damages on that ground.</p>

Tried before the Hon. John B. Tally. This was a motion by the appellee, not otherwise described in the record, against William Chandler, the sheriff of the county, requiring him to pay over, out of the proceeds of a stock of goods which had been sold under legal process against Gamble & Brother, the amount due on a judgment which the appellee liad recovered against said Gamble & Brother, and on which, as the appellee claimed, an execution had been levied by a constable while…

Heard before the Hon. Wm. H. Tayloe. Bill filed January 18th, 1890, by F. E. McKenzie against 17. B. Kyle and B. N. Wood, to enforce a vendor’s lien on land for unpaid purchase-money. Cross-bill by Kyle, claiming an abatement of the purchase-money on account of a deficiency in the quantity of land conveyed. Demurrer to each bill, and motion to dismiss for want of equity. Decree overruling demurrer and motion as to original bill, and dismissing cross-bill.

Heard before the Hon. Wm. W. Wilkerson. The facts are fully stated in the opinions of Coleman, J., and ■Stone, O. J., and no further statement is necessary. — Wimberly’s mortgage, which was prior in date and duly recorded, gave him priority of lien and right over any statutory lien which may have afterwards supervened, both on the land itself, and on the unfinished house as it stood before any additional work or material was expended on it; and any statutory lien after-wards…

Heard before the Hon. John A. Foster. The bill in this case was filed on the 25th January, 1886, by Mrs. Sallie G. Thorington, against the corporate authorities of the city of Montgomery; and sought to enjoin a threatened sale of three city lots in Montgomery, under a decree in chancery declaring and enforcing a lien on said lots and others, as the property of Mrs. Mary E. Winter, for unpaid taxes.

Tried before the Hon. H. A. Sharpe. This action was brought by the personal representative of the estate of W. E. Beavers, deceased, against the defendant corporation, to recover damages for the death of his intestate, which was alleged to have been caused b3^ negligence on the part of the defendant’s servants while said intestate was in its employment as a switchman; and was commenced on the 9th ■September, 1890.

<p>Appeal from the City Court of Birmingham.</p> <p>Tried before the Hon. H. A. Sharpe.</p> <p>cited and relied on Railroad Co. v. Jones, 95 U. S. 439; Hough v. Railway Co., 100 U. S. 213; Kresanowski v. Railway Co., 18 Fed. Eep. 230 ; 33 Amer. & E. Eailroad Oases, 358; 38 lb. 175; 17 Atl. Eep. 614; 21 Pac. Eep. 574; 8 Amer. & E. E. E. Oases, 523; 3 Amer. St. 230; &"prong v. Railroad Co., 58 N. Y. 56.</p> <p>cited Raihoay Co. v. McCally, 21 Pac. Eep. 574; Railroad Co. v. Robbins, 23 Pac. Eep. 1Í3; Judkins v. Central Railroad Co., 14 Atl. Eep. 737; Railroad Co. v. Wallace, 13 S. W. 567; Langdon v. Penn. R. R. Co., 1 Amer. & E. E. .E. Oases, 87; Hickey v. B. & L. Railroad Co., 96 Mass. 433; Railroad Co. v. Walters, 91 Ala. 435; 53 Oal. 32; 5 Cush. 590; 102 Mass. 531; 80 111. 251.</p>

Tried before the Hon. James B. Head. This action was brought by E. L. Higdon against the appellant corporation, to recover damages for the loss of his hunting dog, which he took with him going from Birmingham to Elliott, stations on defendant’s road, for the purpose of hunting, and was required by the conductor to put him in the baggage-car; and on the arrival of the train at Elliott, the baggage-master demanding 25 cents for the carriage of the dog, which plaintiff refused…

Appear from the Chancery Court of Cullman. Heat d before the Hon. Tkos. Cobbs.

Tried before the Hon. John P. Hubbard. This action was brought by B. F. and Thos. A. Smith, against Wiley E. Crocker, to recover plaintiffs’ “undivided interest” in a certain tract of lan 1, with damages for its detention, or use and occupation; and was commenced on the 9th December, 1890.

Tried before the Hon. H. A. Sharpe, This action was brought by William Donovan, a minor, suing by next friend, against the appellant corporation, to recover damages for personal injuries sustained by being thrown from one of the defendant’s cars on which he was a passenger, on the morning of September 30th, 1889. The plaintiff was about sixteen years old, and was going to school when he got on the car at a regular station, carrying his school-books and umbrella.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed August 19, 1889, in Colbert county, by Gay, Hardie & Co., a mercantile partnership doing-business in the city of Montgomery, as creditors of the Brier-field Coal & Iron Company, in behalf of themselves and •other creditors who might come in and make themselves parties, against said corporation, and against Wm.

John P. Hubbard. This action was brought by R H. Gafford against W. O. Lofton, to recover two horses, with damages for their detention; and was commenced in a justice’s court, on the 8th December, 1887. The justice rendered judgment for the defendant, and the plaintiff took an appeal to the Circuit Court. The plaintiff claimed the horses under a mortgage executed by the defendant to one E. Rosenfield, and an assignment thereof by said Rosenfield to him.

<p>Action against Administrator, for Money Collected by Intestate.</p> <p>I. Testimony of party as to transaction with deceased person. — In an action against an administrator, to recover money collected by his intestate on a note alleged to have been placed in his hands by plaintiff for collection, the defense being that the note in fact belonged to the intestate himself, the plaintiff may be asked “whether she had received anything for said note,” and may answer that she had not. Such testimony is not -within the statutory exception (Code, § 2765) excluding the testimony of a party “as to any transaction with, or statement by any deceased person, whose estate is interested in the result of the suit.”</p>

The bill in this case was filed on the 8th October, 1888, by N. D. Goree against hi. N. Clements, and sought relief against an instrument of writing, in form an absolute conveyance of a tract of land, which the complainant had executed to the defendant, dated August'19th, 1881.

Tried before the Hon. Sam. H. Sprott. This action was brought by the J. Snow Hardware Company, a private corporation, against Mrs. F. L. Brady Gibson, and was commenced on the 18th March, 1889. The complaint contained three counts' — on account, on account stated, and for goods and chattels sold and delivered — each claiming $750. The only plea was the general issue.

Heard before the Hon. Thomas Cobbs. The appeal in this case was sued out on the 20th October, 1891, by T. F. Thornton, from a decretal order, or decree, dismissing a petition filed by him in a suit pending in said court, wherein the Highland Avenue & Belt Railroad Company was complainant, and M. Clifford was defendant. The complainant in that suit was the owner and proprietor of the property known as the Lake View Hotel, and the defendant was the lessee thereof.

Appear from the Circuit Court of Tuskaloosa. Tried before the -Hon. James B. Head. This action was brought by Mrs. P. E. Williams against Geo. A. Searcy, W. O. Jemison, and IT. IT. Peck; and sought to recover damages’for an alleged breach of a written contract between the parties for the sale and purchase of a tract of land. The tract of land contained 140 acres, and the agreed price was $150 per acre, aggregating $21,000.

Tried before the Hon. James B. Head. This action was brought by S. Kaufman against J. S. Smith, who was the sheriff of the county, and four other persons, who were the sureties on his official bond; and sought to recover damages for an alleged trespass in entering on certain premises, particularly described, and taking from the storehouse a stock of goods.

<p> Action on Common Counts for Money Had and Received. </p> <p>1. lidien wife may record' money paid by husband on purchase of land in. her mime. — If a married woman has no power to make an executory contract for the purchase of land, and if she may repudiate and disaffirm, after her husband’s death, an executory contract made by him in her name, she cannot recover the money paid-by him under such contract without showing that it belonged to her separate estate ; and that fact is not established by evidence showing (1) that he had in his hands money which he had given to her, (2) that he took the receipt and the title-bond in her name, and (H) that the notes for the deferred payments of purahase-mouey were signed by her alone.</p> <p>2. Declarations of husband, as evidence for wife. — When the surviving wife sues to recover money paid by her husband under an ex-ecutory contract for the purchase of land in her name, claiming the right to repudiate and disaffirm it, the husband's declarations to her, that he made the cash payment with her moneys in his hands, are mere hearsay as against the vendor, ,who was not present, and not admissible as evidence for her.</p>

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 27th May, 1891, by the appellant, a private corporation “engaged in the business of manufacturing, selling and distributing electricity and electric lights for the purpose of illuminating the houses and streets of the city of Birmingham, and electric power to operate the machines and works of manufacturing enterprises, to which it is duly authorized by law;” and sought by injunction to restrain and…

Tried before the Hon. Sam. H. Sprott. This action was brought by the Loan Company of Alabama, a domestic corporation, against Mrs. Sarah A. Deans, to recover agreed compensation Tor plaintiff’s services in procuring a loan of money on mortgage of lands for defendant, which was never consummated because she refused to sign the mortgage which plaintiff had prepared for her signature. The contract between the parties was in writing.

Appear from the City Court of Birmingham, in equity. Heard before the Hon. H. A. Siiarpe. The bill in this case was filed on the 23d January, 1890, by Elias M. Higgins against the “Board of trustees of the University of Alabama,” and sought to devest the legal title to a tract of land out of the defendants, and vest it in the complainant by the decree of the court, or by a conveyance executed under its order.

Tried before the Hon. H. A. Sharpe. This action was brought by Collins & Griffith, a partnership composed of Robert- A. Collins and B. K. Griffith, against J..S. Smith, the sheriff of the county, and the sureties on his official bond, and sought to recover damages for an alleged trespass, which consisted of the levy by the- sheriff of sundry attachments against J. D. Collins & Oq. on a stock of goods claimed by plaintiffs under a prior purchase from said defendants in…

; Tried before the Hon. Jesse M. Carmichael. This action was brought by Isaac L. Reeves against A. B. Skipper and others, to recover damages for an allege'd trespass, which was the levy by said Skipper, as sheriff, of several attachments against Sims & Reeves, a late mercantile partnership, on a stock of goods which plaintiff claimed to have purchased from them prior to the levy; and the several attaching creditors were also joined as defendants.

Tried before the Hon. H. A. Sharpe. This action was brought by H. F. Dusenberry, as the administrator of the estate of William Johnson, deceased, against the appellant corporation, to recover damages for the alleged negligence which caused the death of the intestate.

<p>Appear from the Circuit Court of Bullock,</p> <p>Tried before the Hon. Jesse M. Carmichael.</p>

Appeals from the Chancery and Circuit Courts of Montgomery. Before Hon. John A. Foster, and Hon. John P. Hubbard. These two cases, involving the same facts and legal points, were argued and submitted together. The facts, stated in brief, are these: On the 21st of December, 1878, a petition was filed with the register in chancery at Montgomery, by Mrs. Virginia D. Powell, the wife oí James VV.

<p> Hill in Equity for Inf motion to Restrain Work and Noise Dangerous to Siok Person. </p> <p>1. Dissolution of injunction by dismissal of bill. — When an interlocutory injunction has been granted in a cause, a decree dismissing the bill ipso facto operates its dissolution, unless it is continued in force, in whole or in part, by some order of the court:</p> <p>2. What is revisable. — A declaration or statement by the chancellor, in a decree dismissing a bill under which an interlocutory in-j auction luid been- granted, as to the amount of damages recoverable in an action on the injunction bond, is in no sense a decree, and an assignment of error can not be founded on it.</p>

<p>Application for Certiorari, Mandamus, etc., in matter of Discharge on Habeas Corpus.</p> <p>1. Conviction of misdemeanor, with fine imposed as punishment; sentence to hard, labor, at subsequent term. — On conviction of a misdemeanor, a fine being imposed as the punishment, the court may at once enter judgment on the verdict, and, in its discretion, allow the defendant a reasonable time, during the term, to pay or confess judgment for the fine and costs, before rendering judgment and sentence to hard labor (Code, §§ 4593-U4); but, questions of law being reserved, if judgment oE conviction only is entered on the verdict, the court lias no power at a subsequent term, after affirmance by the appellate court, to render judgment and sentence to hard labor for the fine and costs.</p>

Apprai, from the City Court- of Montgomery. Tried before the Hon. Thos. M. Arrington.

<p>Appeal from the Probate Court of Montgomery.</p> <p>Heard before the Hon. F. O. Randolph.</p>

Tried before the Hon. John Moore. This action was brought by M. L. Edwards against R. E. Brinson and others, to recover damages for an alleged trespass, which was the levy by said Brinson, as sheriff, of an attachment against L). B. Avenger, in favor of Goetter, Weil & Co., on a stock of goods which the plaintiff claimed to have purchased from said Avenger prior to the levy; and the attaching creditors were joined as defendants.

Tried before the Hon. John Moore. This action was brought by Collier & Pinckard, suing as partners, against M. P. Davis and A. Z. Davis, to recover damages for an alleged breach by the defendants “of a written agreement entered into by them on the 2d December, 1887,” which was set out in the complaint, as follows: “I have this day employed Collier & Pinckard to negotiate for me a loan of $10,000, for the term of five years, with interest at the rate of eight per cent, per…

Tried before the Hon. Jesse M. Carmichael. This action was brought by J. E. Peters against J. M. Brown & Co., and was commenced by attachment. The complaint contained only the common counts, each claiming $121, which was the value, or agreed price, of certain lumber sold and delivered by plaintiff: to defendants, at $16.66 per thousand feet.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 24th of March, 1890, by the Louisville & Nashville Railroad Company and its •lessor, the Mobile & Mouigomery Railroad Company, against •J. D. Philyaw and M. F. Brooks, the latter being the clerk of 'the Circuit Court of Escambia; and sought (1) the specific execution of an alleged parol contract for the sale of a tract of land by said Philyaw to one George B. Milstead, under whom the complainants…

Appear from the City Court of Montgomery. Tried before the Hon. Tiros. M. Arrington. This action was brought by H. A. Sayre, S. M. Levin and R. B. Snodgrass, trustees in a deed of assignment executed by Moses Brothers for the benefit of their creditors, against David Weil; and was founded on the defendant’s promissory note or $ 1,618.32, which was dated 7th February, 1891, and payable four months after date; to the order of Moses Brothers, at their office in Montgomery.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 14th September, 1891, by W. E>. Westcott, as the administrator de bonis non of the estate of Mrs. Lucy B. Noble, deceased, against H. A. Sayre S. Levin, and R. B. Snodgrass, as assignees of Moses Brothers, and also against the individual partners composing that firm, and against H..

<p> Bill in Equity for Foreclosure of Mortgage. </p> <p>1. When heirs or distributees may sue 'without administration. — When the debts of an intestate have all been paid, and nothing remains to be done but to reduce the assets to possession and distribute them among the next of kin, administration may be dispensed with, and the heirs and distributees may sue in their own names.</p> <p>2. Mortgage to guardian, for ward’s money loaned and afterwards accounted for. — If á guardian lends out his ward’s money, taking a note and mortgage as security, and afterwards accounts to his ward for the money on final settlement, the note and mortgage become his individual property, and he may enforce them in his own name.</p>

Heard before the Hon. John A. Poster. The bill in this case was filed on the 11th of August, 1890, by E. T. Norton individually, and as administrator of the estate of his deceased father, John J. Norton, against the surviving widow and the other heirs and distributees of the estate; and sought to remove the final settlement of his administration from the Probate Court of said county, in which it was pending.

Tried before the Hon. Jesse M. Carmichael. This was a motion by Leinkauff & Strauss, plaintiffs in attachment against O. W. Pearce, for instructions to the sheriff to pay over to them certain moneys in hands, the proceeds of sale of the property on which the attachment had been levied. The motion was resisted by J. W. Drewry, who had an attachment against said Pearce levied on the goods on the same day, but before the levy of Leinkauff & Strauss.

John Ii. Tyson, special judge; and Appeal from the Circuit Court of Crenshaw, before Hon. John P. Hubbard.

Appear from the Circuit Court of Montgomery. Tried before the Hon. John P. Hubbard. This action was brought by Simon Scarborough against the Alabama Midland Eailway Company, to recover damages for personal injuries sustained by plaintiff, while travelling, as alleged in each count of the complaint, as a passenger on a train on the defendant’s road, between Earner, a station in Montgomery county, and Troy, in Pike county.

Heard before the Hon. John A. Foster. The bill in this case was hied on the 18th September, 1890, by Mrs. Daisy Farley, as the wife of Hoxie C. Farley, and sought a divorce from her said husband, on the ground of abandonment and adultery, and also alimony.

Tried before the Hon. Jesse M. Carmichael. The record in this case shows these facts : On March 24th, 1888, a judgment was rendered by a justice of the peace in favor of Weedon & Dent as plaintiffs, against Warren G. Clark, for $72.74 besides costs. An execution on this judgment was levied by a constable, October 13th, 1888, on a mule and other personal property.

Tried before the ITon. Jesse M. Carmichael. This action was brought by Mrs. Emma Flowers against D. W. Jernigan and Thos. Smith, to recover the possession of a tract of land containing eighty acres, with damages for its detention ; and was commenced on the 27th November, 1889. The general issue was the only plea, and the trial resulted in a verdict and judgment for the plaintiff; the defendants reserving numerous exceptions to rulings, which are here assigned as error.

Tried before the Hon. John P. Hubbard. This action was brought by Mrs. Ida S. C. Walker, against A. M. Baldwin, surety on an attachment bond; and was commenced on the 30th March, 1888. The attachment against Mrs. Walker was sued out on the 29th March, 1888, by the Empire Paper Bag Company, a partnership doing business in New York; and the defendant in this case was indemnified by them to sign the attachment bond.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 1st February, 1889, by the Pike County Guano Company, a private corporation organized under the general statutes, against Edw.

Heard before the Hon. Thos. M. Arrington. The bill in this case was filed on the 24th September, 1891, by Thomas W. Jennings, as a creditor of Henry Pearce, against said Henry Pearce, his brother, Hollis Pearce, and C. IT. Chandler; and sought relief as hereinafter stated.

Heard before the Hon. John A. Foster. The bill in tins case was filed by John Ball, against Ratcliff' Ball and R. M. Jones, and sought to enforce a vendor’s lien on laud for unpaid purchase-money. On final hearing, on pleadings and proof, the chancellor rendered a decree for the complainant; and his decree is here assigned as error.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 15th July, 1890, by Nancy Taylor against Michael Burke, and sought to set aside and cancel, on the ground of fraud and undue influence, a conveyance which the complainant had executed to the defendant, dated 7th June, 1888, and in the following words, omitting immaterial parts : “Know all men by these presents, that I, Nancy Taylor,” “for and in consideration of the sum of $250 to me in hand paid by…

From the Circuit Court of Pike. Tried before the Hon. John P. Hubbard. Indictment for larceny from the person. The opinion states the material facts. Charge No. 1, asked and refused, was in these words: “The jury must believe, beyond a reasonable doubt, that the defendant'got the money into his hand, or actual possession of it, before they can convict him of larceny.’ cited Edmunds v. State, 70 Ala. 8; Groom v. State, 71 Ala. 14; Frazier v. State, 85 Ala. 19; Eng. & Amer.

Appeals from the City Court of Decatur, in equity. Heard before the Hon. Wm. H. Simpson. These two cases were argued and submitted together, both in the court below and in this court. The bills were filed by George Ensminger .and Mary L. Ensminger, respectively, against E. H. Kinney and P. H. Kinney; and each sought to enforce a vendor’s lien on land for unpaid ptfrchase-money, evidenced by the defendants’ two promissory notes.

Tried before the Hon. Henry C. Speaks. On the 28th June, 1888, Isaiah Weil, the appellant, sued out an attachment against Pierce & Orumbacker, for the rent of a storehouse for the year 1888, on the ground that they had fraudulently disposed of their goods.

Tried before the Hon. Henry C. Speake. This action was brought by Mrs. Ella P. Graham, widow and administratrix of the estate of her deceased husband, John L. Graham, to recover damages for the wrongful and negligent acts of the defendant railroad corporation and its servants, which, as alleged, caused the death of said Graham while in the defendant’s service as a conductor on one of its trains.

Heard before the Hon. John A. Foster. The original bill in this case was filed on the 20th August, 1890, by the Montgomery Land & Improvement. Company, a corporation organized under the general statutes of the State, against the heirs at law of Eefrie Henshaw, deceased, and against the Southern Cotton Oil Company, a corporation organized under the laws of New Jersey; and sought a partition of a certain tract of land among the several parties as tenants in common.

Heard before the Hon. Thos. Cobbs. The original bill in this case was filed on the 3d August, 1891, by Friedman Bros., a commercial partnership, as a creditor of Charles M. Fennell, deceased, against Charles H. Fennell, or “Charles Fennell, Jr.,” a minor son of said Charles M., and against the Mutual Benefit Life Insurance Company, a corporation organized under the laws of New Jersey; and sought to reach and subject to the satisfaction of complainant’s debt, which had been…

Heard before the Hon, Thos. Cobbs. The bill in this case was filed on the 5th November, 1889, by the appellants, a mercantile partnership in New York city, against Thomas G. Buchanan, his late partner, Thomas O. Ryall, and the National Bank of Shelbyville, Tennessee ; and sought a discovery of the property, evidences of debt, &c., alleged to belong to said Buchanan, but which he had fraudulently concealed or transferred to the other defendants, and their subjection to the…

Appeals from the Chancery Court of Marshall. Heard before the Hon. S. K. McSpadden. The record in these cases shows these facts : On the 30th January, 1890, John G. Winston filed a bill in equity in said court against Edward Winston, who was his son. seeking to enforce a vendor’s lien on a tract of land for purchase-money alleged to be unpaid.

Tried before the Hon. We H. Simpson. This action was brought by Samuel Glass, as the administrator of the estate of his deceased mother, Mrs. Martha Glass, to recover damages for the alleged wrongful and negligent acts of the persons in the employment of the defendant corporation which caused her death; and was commenced on the 22d August, 1889. The main defense was contributory negligence.

<p> Bill in Equity to enforce Vendor's Lien on Land. </p> <p>1. Vendor’s lien, on breach of purchaser’s agreement to erect and operate, factory on land. — On a sale and conveyance of land, with covenants of warranty, in consideration of the purchaser’s “erecting and operating a car factory” on the land within twelve months, if the vendor has obtained a judgment for a breach of that undertaking, he may enforce satisfaction of it by bill in equity as for a vendor’s lien; but the claim not having been reduced to judgment, the court will not enforce it as a lien on the land.</p> <p>2. Specific performance of contract involving exercise of shill and judgment; inability of purchaser to perform. — A court of equity will not decree the specific execution oí a contract by which the purchaser of land undertook and promised to erect and operate a car factory on it, since this involves the exercise of labor, skill, judgment and discretion, which the court can not supervise; and the alleged inability of the purchaser, for want of means, to complete the work, is also an objection to a decree for specific performance.</p> <p>3. Writings construed together. — Two writings executed at the same time, relating to the same subject-matter, and referring to each other, will be construed together as parts of one and the same instrument.</p> <p>4. Vendor’s lien under contract for sale of land and other property. Under a contract between a land company and a manufacturing company, by which the former undertook to sell andconvey a certain quantity of land, to pay a specific sum of money, and to transfer a certain number of shares of its stock to the latter, in consideration of its undertaking to erect and operate a factory on the land; the value of the land, which was conveyed with covenants of warranty, not being agreed on, and no data being furnished from which its relative value could be definitely ascertained, a vendor’s lien does not arise.</p>

Tried before the Hon. John P. Hubbard. This action was brought by S. A. Jones against the partners composing the firm of Feagin, Kendall & Co., to recover the possession of a tract of land, with damages for its detention; and was commenced on the 3d June, 1889.

<p>Appeal from the Chancery Court of Colbert.</p> <p>Heard before the Hon. Thomas Cobbs.</p>

Tried before the Hon. Wm. H. Simpson. This action was brought by Horace Orr, as administrator of the estate of Henry Griffin, deceased, to recover damages for the alleged wrongful and negligent acts of the defendant’s servants, which caused his death on the 4th May, 18S7; and was commenced on the 24th May, 1887.

Tried before the Hon. B. F. Oassady. This action was brought by the Mary Pratt Furnace Company, a private corporation, against the Anniston Pipe Works, another private corporation, and was founded on a bond, or promissory note under seal, to which the defendant’s name was signed, “by W. L. McOaa, sec. and treas.” The note, which was set out in the complaint, was dated Sept. 1st, 1890, and payable four months after date, to the order of the plaintiff, at the First National…

<p>Appeal from the Chancery Court of Jefferson.</p> <p>Heard before the TIon. Thomas Cobbs.</p> <p>cited 'Waddell v. Lanier, 62 Ala. 350 ; Kennedy v. Kennedy, 2 Ala. 607; Boney v. Hollingsworth, 23 Ala. 690; Dunne v. English, Law Rep. 18, Eq. 532; 1 Lawson’s Eights &Eemedies, §§ 93-4; Young v. Hughes, 32 N. J. Eq. 384; 1 W. & T. Lead. Oas. Eq., 239; 71 Penn. St. 262; 43 Wise. 446 ; 57 Penn. St. 260 ; Obert v. Obert, 12 N. J. Eq. 429; 9 Otto, 588 ; 1 Story’s Equity, § 207 ; Cullum v. Br. Banlt, 4 Ala. 35 ; Juzan v. Toulmin, 9 Ala. 662.</p> <p>cited 2 Amer. 6 Eng. Encyc. Law, 592,note; 6 TJ. S. Digest, N. S. 614, § 83 ; 10 lb. 623, § 9; 9 lb. 610, § 77; 2 Pom. Equity, § 959; 1 Myers’ Fed. Dec. 202; Watts v. Burnett,'5Q Ala. 340; Lehman v. Lewis, 62 Ala. 129; Dawson v. Burrus, 73 Ala. 114.</p>

<p>Appeal from the Circuit Court of Montgomery.</p> <p>Tried before the Hon. Jno. P. Hubbard.</p> <p>cited Street v. Kelly, 67 Ala. 478; Ellison v. State, 69 Ala. 1; Jenks v. Terrell, 73 Ala. 238; Orescent Brewing Oo. v. Handley, 90 Ala. 486; Anderson v. Bellenger, 87 Ala. 334.</p> <p>cited Ihompson v. Robinson, 34 Ark. 52; King v. Bank, 47 Amer. Dec. 743; Bennett v. Robinson, 3 Stew. & P. 227; Lewis v. Faber, 65 Ala. 460.</p>

Tried before the Hon. Leroy F. Box. This action, was brought by Mrs. Minnie Hardy against Kansom Lucas, to recover two horses, a wagon, and a set of harness, and was commenced on the 26th June, 1888.

Tried before the Hon. B. F. Cassady. The record in this case shows these facts; On the 17th December, 1889, a writ of garnishment at the suit of A. D. Gatchell, or Gatchell & Co., was sued out and served on J. D. Foster, as the debtor of W. T. Farrar; but whether on a judgment, or in aid of a pending suit, the record does not show.

<p>Appear from the City Court of Anniston.</p> <p>Tried before the Hon. B. F. Oassady.</p>

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

Tried before the Hon. Leroy F. Box. This action was brought by Mrs. Mary M. Baker against the appellant corporation, to recover damages for a mule which was killed by one of the defendant’s trains. The bill of exceptions purports to set out all the evidence.

Tried before the Hon. B. E. Cassady. This action was brought by Iverson E. Watson against the appellant corporation, to recover damages for personal injuries received by plaintiff, while a passenger on one of defendant’s trains, at Oxanna, a regular station on the railroad. The material facts of the case appear in the opinion delivered on the former appeal (92 Ala. 320-26), and the opinion on this appeal.

<p>Appeal from the Circuit Court of Shelby.</p> <p>Tried before the Hon. Leroy F. Box.</p>

<p>Appeal from the City Court of Anniston.</p> <p>Tried before the Hon. B. E. Cassady.</p>

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

Tried before the Hon. Leroy F. Box. This action was brought by John T. Cromwell, as the administrator of the estate of Mrs. Mary P. Roper, deceased, against Scott Horton; and was commenced by attachment sued out before a justice of the peace, on the ground that the defendant had removed a part of the crop from the rented premises without paying the rent claimed to be due to Mrs. Roper’s estate.