Volume 95 — Alabama Reports

FROM tbe Circuit Court of Lowndes. Tried before tbe Hon. JOHN Moore. Tbe defendant in tbis case, a negro boy about sixteen or seventeen years old, was indicted for tbe murder of Mr. Ed. Maull, by shooting bim witb a gun; was convicted of murder in tbe first degree, and sentenced to be banged.

<p>Feom tlie Circuit Court of Etowab.</p> <p>Tried before the Hon. John B. Tally.</p>

FROM the City Court of Mobile. Tried before the Hon. O. J. Semmes. The defendant in this case, Bobert Young, was indicted for the murder of Jesse White, by shooting him with a pistol; was convifeted of murder in the second degree, and sentenced to the penitentiary for the term of ten years.

W. J. Hilliard, judge of probate of Bike county, refusing to discharge the appellant, Jack Davis, from the custody of the sheriff of said county, who held him under a mittimus issued by a justice of the peace, “on a charge of violating a criminal contract,” as the offense was described in the mittimus. cited Boynton v. State, 77 Ala. 29; Taylor v. Woods, 52 Ala. 474; Horton v. Elliott, 90 Ala. 480; Smith v. State, 81 Ala. 74; Smith v. State, 82 Ala. 40; Wynn v. State, 82…

FROM the District Court of Lauderdale and Colbert. Tried before the Hou. W. P. Chitwood.

<p> Application for Certiorari, in matter of Discharge on Habeas Gorpns. </p> <p>1. Municipal charier; ordinance prohibitive/ sale of liquor. — A municipality, situated in a county in which a local prohibitory liquor law is of force, and authorized by its charter “ to pass all laws and ordinances, and to provide for enforcing the same, for the suppression in said town of all offenders known and classed in the laws of the State .of Alabama as offenses against the person, . . offenses against public morality and decency,” &c., may by ordinance prohibit the sale of spirituous liquors within its corporate limits.</p> <p>2. Same; imprisonment “until fine and costs are paid.” — A provision in a municipal charter authorizing the corporate authorities, on nonpayment of the fine and costs on conviction for the violation of an ordinance, to impose hard labor or imprisonment “ until the fine and costs are paid,” is violative of the constitutional provison which prohibits imprisonment for debt.</p> <p>This was au application in the name of the town of Bus-sellville, a municipal corporation, for a writ of certiorari, or other remedial writ, to bring up for review, an order or judgment rendered by Hon. J. M. Jordan, probate judge of Franklin county, discharging one Arthur Hurley from the custody of the town marshal, who held him under a conviction for the violation of a town ordinance. The conviction was in the Mayor’s Court, on the 2d January, 1892, and a fine of $25 was imposed. On the same day, while Hurley was yet in the custody of the marshal, he sued out a writ of habeas corpus, returnable before Judge JORDAN; and on the hearing, which was had on the same day, he was discharged, the probate judge holding that the ordinance was inoperative and void.</p>

APPLICATION by William Sloane for tbe writ of habeas corpus, to procure his discharge, or admittance to bail, from the custody of the sheriff of DeKalb county, on an indictment for the murder of James Morton; bail'having been refused by Hon. L. L. Cochran, the probate judge of said county, and an exception reserved by the prisoner to that decision.

<p>Feom tbe Circuit Court of Clarke.</p> <p>Tried before tbe Hon. Wi. E. Clarke.</p> <p>cited and relied on Garl v. State, 87 Ala. 17; Knowles v. State, 80 Ala. 9.</p> <p>cited Code, § 403*7; Williams v. State, 91 Ala. 14; Garl v. Stale, 89 Ala. 93; Garson v. State, 69 Ala. 235; Gom. v. Kimball, 24 Pick. 366; Com. v. Halleti, 103 Mass. 452; 2 Wliart. Or. Law, 9th eel., 1506.</p>

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

Ebom tbe Circuit Court of Bullock, on change of venue from Barbour. Tried before Hon. Jesse M. Cabmiohael. Tbe defendant in tbis case was indicted for embezzlement as a bank officer, was convicted, and sentenced to tbe penitentiary for tbe term of three years. Tbe indictment was found at tbe June term, 1891, and contained four counts.

' Heard before the Hon. Thos. W. Coleman. The bill in this case was filed on the 2d July, 1887, by Thomas H. Pattison, as a judgment creditor of Thomas Bragg, against said Thomas Bragg, Willis Bragg, Robert J. Carson, and others; and sought to set aside a conveyance of his property executed by said Thomas Bragg to Willis Bragg, who was his younger brother, and to said Carson, who was his cousin, and to subject the property to the satisfaction of the complainant’s debt, which…

<p> Contest of Claim of Exemption. </p> <p>1. Claim of exemption to property levied on; waiver of accompanying inventory. — When a claim oí exemption is interposed to personal property on which an attachment has been levied, it should be accompanied with a statement oí all the defendant's other personal property, chaves in action, &c. (Code, §§ 2521, 2525); but the want of such statement is waived, if the. plaintiff, without objecting to the sufficiency oí the claim, makes a written demand for an inventory.</p> <p>2. Issue contesting chum of exemption.; errar without injury. — On a contest oí a claim of exemption to personalty, an issue being formed under the direction of the court, in which the plaintiffs allege that the property levied on is subject to their attachment, and is not by law exempted to the defendant, this properly presents the question to be tried, namely, whether the defendant has property, money or effects not included in his inventory ; and if there is error in the refusal of the court to require the defendant to join in other special issues tendered by plaintiffs, it is error without injury.</p> <p>3. Evidence on issue as to ownership of money.— On the trial of an issue contesting a debtor’s claim of exemption to property on which an attachment has been levied, plaintiffs having proved that he received a considerable sum of money for goods sold a few days before the levy of the attachment, it is permissible for him to show that, when the written demand for an inventory was made on him, he had already used the money in the payment of other bona fide debts.</p> <p>4. Disposition of property by defendant in attachment claiming exemption. — When a defendant in attachment claims as exempt the specific property levied on, and his claim is contested by the attaching creditor, he is not thereby deprived of the right to prefer other bona, fide creditors, and to pay their debts with any other property; but a gift, or fraudulent disposition of his property, is void as against plaintiffs and other existing creditors.</p> <p>5. Deposit of money with third person, for creditor. — If a debtor deposits money with a third person, instructing him to pay it to another, no present consideration passing, the ownership of the money remains in the debtor himself until the beneficiary ratifies the act by accepting the money, or otherwise placing the depositary in a position which might result in prejudice to him by a revocation of the act; and a ratification in such case relates back to the date of the deposit, changing the ownership from that time.</p> <p>6. borne; garnishment against depositary; ownership of money deposited. The ownership of the money so deposited remaining in the debtor, it is subject to garnishment in the hands of the depositary; and if the debtor files an inventory of his property, on a contest of his claim of other property as exempt, while the money is yet in the hands of the depositary, it may be that he should include it, stating the facts; but, if the money has been paid over to the creditor before demand for an inventory is made, the attaching creditor can not complain, nor insist that it be estimated as a part of the debtor’s property.</p>

Heard before the Hon. S. K. McSpaddeN. The bill in this case was filed on the 15th of December, 1890, by George E. Everson against Bobert L. Irwin, and prayed the dissolution of an alleged partnership between the parties, a settlement of the partnership accounts, and the appointment of a receiver to take custody of all the partnership property and effects.

Tried before tbe Hon. B. F. Cassady. This action was brought by Blumenthal & Eckert, suing as partners, against T. M. Aderhold and H. W. Finney, to recover damages for an alleged conversion of certain goods and chattels, consisting of chairs, table, furniture, fixtures, crockery, &c.; and was commenced on the 29th April, 1889.

Appeals from the Circuit Court of Marengo. Tried before tlie Hon. Wi. E. ClaRKE. The records in these two cases show these facts: On the 8th February, 1890, a declaration and claim of exemption to certain personal property, consisting principally of a stock of goods, was made and filed of record in the office of the probate judge of Marengo county, by Henry T. Bledsoe.

Tried before the Hon. H. C. Speaks. This action was brought by Caldwell Brothers, a mercantile partnership doing business at Scottsboro, Alabama, against the appellant, a domestic corporation, whose principal place of business was at Montgomery; and was founded on a policy of insurance of a storehouse at Scottsboro against fire, which the defendant had issued to the plaintiffs.

Heard before the Hon. H. A. Shaepe. The original bill in this case was filed on the Gth of September, 1889, by Steiner Bros., suing as partners, against A. A. Clisby, Lorenzo Clisby and. wife, Robert Jemison, and W. R. Deloacli; and sought to foreclose a mortgage on certain real estate in Birmingham, and to declare and enforce the complainant’s equitable rights in and to the property, as paramount and superior to the rights asserted by A. A. Clisby, Jemison, and Deloach.

Tried before tlie Hon. J. It. Dowdell. Tlie appellants in this case having obtained a judgment on the 17th September, 1890, against L. D. Jones, an execution thereon was levied by the sheriff, October 8th, 1890, as shown by his return, “on one business house and lot in the town of Camp Hill, known as the L. D. Jones Bar-room’, bounded as follows,” &c. The defendant interposed a claim of exemption to the house and lot as his homestead, describing it as “one storehouse and lot…

Tried before tbe Hon. Wi. E. .ClaRKE. Tbis action was brought by A. G. Levy & Co., against D. C. Alexander, A. D. Alexander, J. D. Alexander, and J. T. McDonald, “late partners under tire name and style of D. C. Alexander & Co.;” and was commenced on tbe 1st February, 1888.

<p>Appeal from the Circuit Court of Perry.</p> <p>Tried before tlie Hon. JOHN Moobe.</p>

Tried before tlie Hou. John B. Tally. This action was brought by Walden & Son, suing as partners, against L. D. Agnew,-as administrator of the estate of J. B>. Dorsey, deceased, and was commenced on the 18th June, 1886. The action was founded on a bond, or promissory note under seal, which, as set out in the complaint, was signed by said Dorsey, and in these words: “$500.

<p> Attachment and Garnishment. </p> <p>1. Issue and service of garnishment. — In an action commenced Tby original attachment, the sheriff may execute the writ by summoning a person as garnishee (Code, §§ 2945-6), himself signing the summons officially, and. indorsing the service on the attachment; but the clerk has no authority to issue a summons in garnishment, directing the sheriff to summon ceriain named persons as garnishees; and such process being void, when no writ of attachment has beeil issued, its service by the sheriff is also unauthorized and void.</p> <p>2. Detects available to garnishee. — A garnishee can not take advantage of mere irregularities in the attachment proceedings; but, when the writ is void, or the garnishment process is issued by an officer without authority, or the service thereof is unauthorized and void, he may take advantage of these defects by plea in abatement.</p> <p>3. Filing pleadings; what is reoisable. — Leave to file a replication to a plea in abatement, after the expiration of the time allowed by the rules of practice, rests in the discretion of the court, and its refusal is not revisable.</p> <p>4. Contest of garnishee’s answer denying indebtedness. — When the answer of a garnishee denies any indebtedness, and his answer is contested by the plaintiff in attachment, the issue of indebtedness vel non does not go beyond the service of the garnishment, though evidence of a prior indebtedness might be relevant and admissible under an issue properly formed.</p> <p>5. Summons of third person, as claimant, or transferree. — When the answer of a garnishee, admitting an indebtedness or liability, further states that a third person claims the debt, money or property (Code, §§ 2984-87), the plaintiff must bring in such adverse claimant by summons or notice, and can not try his right by contesting the answer of the garnishee.</p>

Heard, before the Hon. S.- K. MoSpaddeN. Held: that the bill contained equity so far, and only so far, as it sought relief against the obstruction of the street; and (2) that John C. Webb was the only proper defendant, as he alone was charged with the erection and continuance of the fence.

Tried, before tbe Hon. Jesse M. Oabmiohael. Tbis action was brought by Fannie Meadors, as. adminis-tratrix of tbe estate of her deceased busband, Bobert Meadors, wbo was run over and killed, on tbe nigbt of September, 1888, witbin tbe corporate limits of tbe city of Opelika, by an engine and train of cars -belonging to tbe defendant railroad company.

<p> Action on Judgment. </p> <p>1. Sufficiency of complaint; amendment. — In an action on a judgment, properly describing it, additional averments as to the contract on which it is founded, are unnecessary and superfluous; and a count added by amendment, containing a fuller description of the contract, is not a departure, nor objectionable as effecting a misjoinder.</p> <p>2. Conclusiveness of judgment. — A judgment is conclusive of all matters which might have been urged as defenses against its rendition, and such matters are not available in defense of an action on it.</p> <p>3. Error without injury in rulings on pleadings. — Sustaining a demurrer to a special plea, if erroneous, is error without injury, when the record shows that the defendant had the full benefit of the same defense under another special plea, on which issue was joined.</p> <p>4. Plea of failure, of consideration. — A plea of failure of consideration, not stating the facts, is demurrable on that account, when not pleaded “in short by consent.”</p> <p>5. Superfluous averments in complaint. — If the defendant takes no proper steps to eliminate false issues presented by the complaint, evidence may be received to support them, and they may be submitted to the jury.</p>

<p> Action on Promissory Note; Nexo Trial. </p> <p>1. iSTew trial; revision of order granting or refusing. — Under the statute giving an appeal to this court from an order granting or refusing a new trial (f-ess. Acts 1890-91, p. 779), two rules have been declared, to which the Court adheres: (1) when the appeal is from an order refusing to grant a new trial on account of the insufficiency of the evidence, or because the verdict is contrary to the evidence, this court will not disturb the decision, unless, after allowing all reasonable presumptions in favor of its correctness, the preponderance of the evidence against the verdict is so decided as to convince the court that it is wrong and unjust; and (2) when the appeal is from an order granting a new trial, the decision will not be reversed unless the evidence plainly and palpably supports the verdict.</p>

Tried before the Hou. J. B. Dowdell. This action was brought by M. P. Jarvis against the appellant railroad corporation, to recover damages for killing a cow belonging to plaintiff.

Tried before tbe Hon. Jesse M. Carmichael. Tbis action was brought by Charles E. Ingram against tbe appellant corporation, to recover damages for injuries to a number of bis mules, fourteen of which were killed, and several others crippled and injured, by one of tbe defendant’s freight trains, on tbe morning of November 28th, 1890.

Tried before tbe Hon. B. E. Cassady. Tbis was a motion by G. H. Matbis against L. P. Carpenter as sheriff, and Wiley Carpenter, W. M. Hyatt, J. E. DeArman, J. B. Palmer, J. 0. Watson, and Jas. E. Watson, as sureties on bis official bonds; and was commenced on 'tbe 5tb July, 1890. Tbe cause of action was tbe sheriff’s failure to levy an attachment, which tbe plaintiff bad sued out against one 0.

Tried before tbe Hon. John B. Tally. This action was brought by Moses B. Keel, to recover tbe possession of a tract of land containing 480 acres, wbicli was described in tbe complaint by its government numbers, being subdivisions of sections 17, 32, and 33, in township four (4), range three (3) east, in Jackson county; and was commenced on tbe 21st July, 1890.

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

Tried before tbe Hon. S. H. Speott. This action was brought by B. S. P. Moore against John Maxwell and Bichard Maxwell, to recover a mule, with damages for its detention; and was commenced on tbe 27th April, 1889.

Heard before the Hon. H. A. Sharpe. The bill in this case was filed on the 28th October, 1885, by Wm.

Feom; tlie City Court of Mobile. Tried before tbe Hon. O. J. Semmes. Tbe opinion states all tbe facts of tbe case. witb whom was Gaylokd B. Clark, filed a printed brief and argument, from wbicb tbe following extracts are taken:— The title of tbe State to tbe oyster-beds witbin its jurisdiction bas not its source in private concession, nor in legislative declaration. It dates from tbe birtb of tbe State, and rests upon its sovereignty.

Tried before tbe Hon. John B. Tally. This action was brought by Oehmig & Wiehl, suing as partners, against Henry Johnson and L. M. Gordon, and was commenced on the 13th December, 1888.

Heard before tbe Hon. W'm. H. Tayloe. Tbe bill in tbis case was filed on tbe 6tli October, 1890, by Origen S. Sibley against Peter E. Alba, and sought partition of a certain tract of land of which tbe com-plainanfc claimed, to own an undivided one-balf interest, and alleged that tbe defendant was seized of tbe other balf as tenant in common witb bim.

Tried before tbe Hon. JOHN Mooee. Tbis was a statutory trial of tbe right of property in and to a stock of goods, between Penn & Co., plaintiffs in attachment against Spinks Bros., and Moore, Marsh & Co. as claimants, who claimed to have purchased from said defendants prior to tbe levy of tbe attachment.

Tried before tlie Hon. Jora B. Tally. This action was brought by the appellants, suing as a late partnership, against W. J. Shannon and others, to recover the possession of a tract of land, and was commenced on the 21st January, 1889.

Tried before tbe Hon. Jas. B. Dowdell. This action was brought by Samuel Henderson, as as-signee of A. J. Langley & Brother, against M. Joseph, and was commenced on tbe 4th March, 1889.

Heard before the Hon. JOHN A. FOSTER. The bill in this case was filed on the 6th July, 1891, by Henry S. Ellison and others, as creditors of Moses Brothers, a partnership lately doing business in Montgomery as bankers, against the partners composing said firm, and against M. P. LeGrand and others; and sought to have several conveyances which Moses Brothers had executed to said LeGrand, M. P. LeGrand, Jr., Josiah Morris & Co., and H. C. Moses, declared parts of a general…

Tried, before tbe Hon. ¥i. E. Clabke. Tbis action was brought by August Kling against Philip Kearney, and was commenced on the 17th February, 1890.

Heard before the Hon. Thohas Cobbs. The bill in this case was filed on the 1st J une, 1891, by John de B. Hooper against the Dora Coal Mining Company, a private corporation, to enjoin and restrain the defendant from depositing on a tract of land, of which the complainant claimed to own the surface, foul water, slate, and other noxious substances, brought up through the opening of the defendant’s mine on the land, from other subjacent lands which the defendant was also mining.

Tried before tbe Hon. Wi. E. Clarke. This action was brought by Charles Bernheimer against Lewis W. Turner and his wife, Mrs. Sarah A. Turner, to recover the possession of a house and lot in the oity of Mobile; and was commenced on the 4th April, 1891. The defendants pleaded not guilty, and the cause was tried on issue joined on that plea.

Heard before tbe Hon. Wi. H. Tavloe. Tbe bill in this case was filed on tbe 14th November, 1890, by Jobn Craft, doing business under tbe name of Craft & Co., against Mrs. Julia J. Stoutz, both individually and as executrix of tbe will of her deceased husband, F. Arnold Stoutz, and contained these allegations : (1.) That said F. A. Stoutz was indebted to complainant, January 1st, 1883, for goods sold and delivered, and tbe indebtedness continued to increase until August 19th,…

Tried before tbe Hon. JOHN Moobe. Tbe record shows tliese facts: On tbe 20th January, 1891, an attachment was sued out in tbe name of “ H. B. Claflin Company,” without other words of description, against F. S. & H. Bosenberg; and was levied by the sheriff on the defendants’ stock of goods. The sheriff’s return on the attachment stated that die gave personal notice of the levy to the defendants on the 22d March, and the same date is copied in the return to a certiorari.

Tried before tlie Hon. Wi. E. Clause. This action was brought by Joseph Espalla, as administrator of the estate of Silas Holloway, deceased, against William Gottschalk and his tenant in possession, Henry Rogers; and was commenced in a justice’s court, on the 2d December, 1890.

Heard before the Hon. Thqs. W. ColemaN. Tbe bill in this case was filed on the 22d February, 1888, by Mrs. Martha E. English and others, owners of certain real estate in the city of Mobile, against the Progress Electric Light & Motor Company, a private corporation engaged in the business of manufacturing and furnishing electric lights for the streets, public buildings, private residences, &c., in the city of Mobile; and sought an injunction to abate the defendant’s works as…

Heard before tbe Hon. PRICE WilliaMS. In tbe matter of tbe estate of Tbomas Dolan, deceased, on tbe petition of Mrs. Mary Dolan, widow’and administra-trix, to bave certain lots in Mobile allotted to lrer in lieu of homestead. Said Tbomas Dolan died in tbe city of Mobile, on tbe 15tb September, 1887, intestate, and without children; and letters of administration on bis estate were granted to bis widow on tbe 1st October, 1887.

Appeals from-tbe Chancery Court of Madison. Heard before tbe Hon. Thomas Cobbs. Tbe opinion of tbe court in these three cases states all tbe facts material to an understanding of tbe points decided. Tbe complainant in each case was a foreign corporation, and alleged compliance with tbe constitutional and statutory provisions authorizing such corporations to do business in Alabama.

Heard before tbe Hon. W. H. Tayloe. Tbe bill in tbis case was filed on tbe 25tb September, 1889, by Burrell A. Clanton, against W. L. Scruggs, Jobn L. Scruggs, and Robert C. Long; and prayed .an, injunction restraining tbe defendants “from carrying on tbe warehouse business at Ball’s Bluff, immediately below Coffeeville Landing on tbe Tombig-'bee river, or authorizing any other persons to carry on said business at that place and for other and further relief under the general…

<p>Appeal from tbe City Court of Anniston.</p> <p>Tried before tbe Hon. B. E. Cassady.</p> <p>cited White v. Pyan, 31 Ala. 400; Shields v. Burns, 31 Ala. 535; 16 Amer. & Eng. Encyc. Law, 533-4.</p>

PETITION by-H. A. Sayre,B. B. Snodgrass and S. M. Levin, as trustees appointed in a deed of assignment executed by Moses Brothers, for a mandamus directed to Hon. Thomas Cobbs, presiding in the Chancery Court of Colbert county, requiring him to vacate an order discharging an injunction in vacation, under the facts stated in the opinion. cited High on Injunctions, § 1583; E. & W. Railway Go. v. E. T., Va. & Ga. Railroad Go., 75 Ala. 278; Jones v. Eioing, 56 Ala. 360; 3 Brick.

Tried before the Hon. Wi. E. Claeke, This action was brought by W. J. Johnson & Co., suing as a partnership, against Bevily Davis, to recover a wagon and two mules ; and was commenced on the 10th October, 1889. The only plea was “the general issue, in short by consent.” The plaintiffs claimed the property under a mortgage, or crop-lien for advances, which was dated May 12th, 1888, and to which the defendant’s name was signed by mark, attested by R. W. Davis.

Tried before tbe Hon. B. F. Cassadx. Attachment by John M. McKleroy, as landlord, against Cantey & Randolph, Ms tenants, for the rent of a storehouse in Anniston, on the ground that the tenants had made an assignment for the benefit of their creditors; and garnishment against A. P. Agee, the assignee. The court discharged the garnishee on his answer, and this judgment, to which the plaintiff excepted, is here assigned as error.

Tried before tbe Hon. B. F. Cassady. Action by Frank Nelson against S. Gf. Larmer, founded on defendant’s promissory note for $100, payable to J. S. Blackburn, and indorsed by Mm to plaintiff. Plea, payment. Trial by court, without jury. Judgment for defendant. Exception and appeal by plaintiff.

<p>Appeal from tbe Circuit Court of Perry.</p> <p>Tried before tbe Hob. John Mooee.</p> <p>cited Blair v. Murphy, 81 Ala. 454</p> <p>cited Upclvwrch v. Norstoorthy, 15 Ala. 709 ; .Abernathy v. Bankhead, 71 Ala. 193; Carpenter v. Going, 20 Ala. 587; Mitcham v. Moore, 73 Ala. 542; Loeb v. Richardson, 74 Ala. 311; Tayloev. Bush, 75 Ala. 432.</p>

<p>Appeal from tbe Chancery Court of Jackson.</p> <p>Heard before tbe Hon. ThoMAS Cobbs.</p>

<p> Bill in Bqidty for Divorce. </p> <p>1. Proof of adultery, as ground of divorce. — To authorize a divorce on the ground of adultery, the circumstances proved “must be such as would lead the guarded discretion of a just and reasonable man to the conclusion that the act has been committedand applying this rule to the evidence in this case, which the court states, it is held sufficient to establish the charge of adultery on the part of the wife, notwithstanding the direct denials of herself and her alleged paramour.</p>

Tried before tlie Hon. Jesse M. Cabmichael. There is no bill of exceptions in this case, and the record is very defective. The action was commenced by a summons issued March 9, 1889, by “J. T. Norman, ex off. J. P.,” entitled “N. P. Gourt, Beat No. 2,” directed “to any sheriff of Lee county,” and commanding him to “summon A. J. Smith & Go., to appear at the next term of the N. P. Court to be held for Beat No. 2,” to answer the complaint of C. W. Dick.

<p>Appeal from the Chancery Court of Limestone.</p> <p>Heard before the Hon. Thomas Cobbs.</p> <p>cited High on Receivers, 555; 38 Ala. 338; 55 Ala. 631; 56 Ala. 211; 52 Ala. 220; 87 Ala. 331, 734; 89 Ala. 217.</p> <p>cited English v. Key, 39 Ala. 113; Tubb v. Fort, 58 Ala. 279; Westmoreland v. Foster, 60 Ala. 448; Ooffey v. Hunt, 75 Ala. 236; Kirlcpatriclc v. Boyd, 90 Ala. 449; Ashurst v. Lehman, Durr & Go., 86 Ala. 370; American Freehold Mortgage Go. v. Beioell, 92 Ala. 163; Oomer v. Shehan, 74 Ala. 452; Beach on Receivers, § 494.</p>

Tried before the Hon. Wir. E. Clarke. This action was brought by the appellant, described in the summons and complaint as “a corporation under the laws of Great Britain,” against ¥m. G. Nixon, J. W. Bush and W. M. Bush; and was commenced on the 24th April, 1888.

<p> Motion to retax Sheriff’s Commissions in Attachment Case. </p> <p>1. Commissions of sheriffon settlement without sale. — When an attachment case is settled without a salo oí the property levied on, the half commissions to which the sheriff is entitled (Code, § 3687) are to be estimated, not on the amount claimed in the affidavit and complaint, but on the amount paid and accepted on the settlement.</p> <p>\</p>

Tried before the Hou. John B. Tally. Tbis action was brought by tbe “Eartherly Hardware Company,” a mercantile partnership doing business in Nashville, Tennessee, against J. W. Cowen; and was founded on an account for goods sold and delivered, each count claiming $62 as the balance due. The opinion states the only issue in the case, and all the evidence bearing on that issue.

<p> Action on Common Gounts for Worlc and Labor Done, and Materials Furnished. </p> <p>1. Plea of tender; acceptance of money paid into court —When a tender before suit brought is pleaded (Code, § 2685), and the plaintiff neither demurs to the plea, nor takes issue on it, but accepts the money paid into court, the defendant is entitled to have the suit dismissed.</p>

Heard before the Hon. Wm. H, Taxlqe. Tbe bill in this case was filed on the 5th July, 1890, by Mrs. Rebeccca E. Ward, tlie widow of Benjamin Ward, deceased, jointly with her three minor children, against Alfred Gr.

Tried before tbe Hou. HeNbx C. Speake. Tbis action was brought by John Kahl, as administrator of tbe estate of Jobu P. Kabl, deceased, wbo was killed on tbe 1st April, 1887, near Corintb, Mississippi, while in tbe discharge of bis duties as engineer on one of the defendant’s trains, by a collision with another train, alleged to have been caused by tbe negligence of tbe conductor, to whose orders be was subject; and was commenced on tbe 28th March, 1888.

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

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 12th September, 1886, by Martha Cameron, against the widow and children of her deceased brother, Daniel Cameron; and sought to enforce payment of a promissory note under seal, which said Daniel Cameron had executed, payable to the complainant, out of property belonging to his estate, in the possession of the defendants.

Tried before T. B. Matthews, Esq., as special judge. Tliis action was brought by Badders & Britt, suing as partners, against W. A. Davis and wife, and was commenced on tbe 6th July, 1888. Tbe original complaint contained a single count, claiming $560 for work and labor done and materials furnished by plaintiffs in building a bouse for defendants, and asserting a statutory lien on the property for tbe amount due.

Tried before tbe Hon. HeNRY C. Speake. Tbis action was brought by tbe Wheeler & Wilson Manufacturing Company, a corporation chartered under tbe laws of Connecticut, against R. F. Saint, A. J. Crossthwaite, C. M. Wright, J. F. Hall, and J. R. Spragins; was commenced on tbe 9th August, 1888, and was founded on tbe defendants’ written contract under seal, which was dated September 19th, 1887, and in these words : “For value received, and in consideration of the within contract,…

Tried before the Hon. Hekry C. Speaee. This action was brought by Thos. M. Scruggs, against Jno. F. Scott and H. S. Freeman, and was founded on the defendants’ two promissory notes, one for $520.33, and the other for $2,081.32 ; each of said notes being dated January 4th, 1890, and payable six months after date, to the order of the plaintiff, at the First National Bank of Decatur. The. action was commenced on the 21st March, 1891.

Heard before the Hon. Thomas Cobbs. The original bill in this case was filed on the 27th March, 1890, by the North Birmingham Land Company, a private corporation, against W. P. Howie ; and sought to enforce a vendor’s lien for unpaid purchase-money, on two lots which the complainant had sold to the defendant.

<p> Action for -Damages by Ejected Passenger. </p> <p>1. Travelling on forfeited ticket. — A regulation adopted by a railroad company requiring a passenger who is found travelling without a ticket, or on a ticket which has been forfeited, to pay for the part of the route already passed over, as well as the part yet to be travelled, is a reasonable rule; and on his failure or refusal to comply with it, the passenger may be ejected.</p>

Tried before the Hon. JOHN P. Hubbabd. The appellant in this case, Andrew Harold, presented his petition to the presiding jndge of the circuit, asking for a mandamus directed to James Herrington, as county treasurer of Escambia, requiring him to pay, out of moneys in his hands belonging to the fine and forfeiture fund of the county, certain claims held by the petitioner, which had been duly registered prior to the 9th February, 1891, and which, he claimed, were entitled to…

<p>Appeal from the Circuit Court of Jefferson.</p> <p>Tried before tbe Hon. Jas. B. Head.</p>

<p>Appeal from tbe Circuit Court of Tuskaloosa.</p> <p>Tried before tbe Hon. Sam. H. Sprott.</p>

<p> Bill in Equity to enforce Constructive Trust against Attorney. </p> <p>1. Purchase by attorney at sale under execution in favor of lunatic client; offer to do equity by client seeking to enforce trust —When an attorney for a lunatic, or for his guardian, sues out an execution on a decree in the lunatic’s favor, and becomes the purchaser at the sale, taking the sheriff’s deed to himself, he becomes a trustee for the lunatic, and it is his duty to pay the accruing taxes on the land; and if he suffers the land to be sold for taxes, again becoming the purchaser himself, he can not claim that the lunatic, seeking to enforce the trust and obtain the legal title, should repay the costs of the tax proceedings, as a part of the offer to do equity.</p> <p>2. Demurrer good only in part. — A demurrer which is good in part only, should be overruled entirely.</p>

Tried before the Hon. H. A. ShaRPE. This action was brought by Samuel C. Crocker, a minor, suing by his next friend, against the appellant railroad company, to recover damages for personal injuries sustained by plaintiff while in defendant’s service, and which were alleged to have been caused by the negligence of the foreman under whom he was working as a section-hand.

<p> Action by Contractor against Railroad Corporation. </p> <p>1.- Construction of branch road by railroad corporation. — A grant oí corporate power to build and operate a railroad between specified termini carries with it the right to construct turn-outs, sidings, switches, stations and engine-houses, and all works and appendages usual in the convenient operation of a railroad; but the right to purchase, extend or construct a “branch road” on or from any point on its line is limited and governed by statutory provisions (Code, §§ 1587-8), and such purchase, extension or construction can only be made by a resolution of the board of directors, ratified and approved by a subsequent vote of the majority in value of the stockholders.</p> <p>2. Breach of contract by corporation; averments of complaint.— In an action against a railroad company by a contractor for the construction of a branch road, alleging the execution of the contract and its breach by the defendant, it is nos necessary further to allege that the construction of the branch road was authorized by resolution of the board of directors, ratified and approved by a vote of a majority of the stockholders in value; that being merely defensive matter, and the presumption being that such preliminary action was had before the work of construction was entered on.</p>

<p>Appeal from tbe City Court of Montgomery.</p> <p>Tried before tbe Hon. Thos. M. ARRINGTON.</p> <p>Tliis action was brought by Moses Bebr against M. L. Gerson and B. Gerson, to recover numerous articles of household furniture, particularly described in tbe .complaint; and was commenced on tbe 6th September, 1890. Tbe defendants pleaded, jointly and severally, (1) non detinet; (2) that they were not, at the commencement of tbe suit, or at any prior time, in possession of any of tbe property sued for, nor bad or exercised any control whatever over it; (3) that plaintiff and bis wife (Bertha Bebr), some time prior to tbe commencement of tbe suit, came to tbe bouse of said M. L. Gerson to board, and brought with them tbe several articles of furniture now sued for, tbe greater part of which was placed in tbe room occupied by them, and the residue in other parts of tbe bouse; that plaintiff continued to live in tbe bouse with bis wife until a short time before tbe commencement of this suit, when be left tbe bouse and bis wife, who continued to remain there until after tbe commencement .of this suit, and claimed tbe furniture as her property, and that defendants never bad any possession or control of any part of said property, but tbe same was under tbe control of said Bertha, and was claimed by her as her property. A fourth plea was afterwards filed, which alleged that tbe articles sued for were not tbe property of tbe plaintiff, but belonged to tbe said Bertha Bebr, who, at tbe commencement of tbe suit, aud for some time prior thereto, was boarding at said Gerson’s bouse and occupying rooms there; that tbe greater part of tbe furniture was in the room occupied by her, and tbe other portions were in different places about tbe bouse, where they bad been placed with her consent, and were subject to her control, and that neither of tbe defendants bad otherwise any possession of tbe articles sued for,</p> <p>Tbe plaintiff demurred to the 3d and 4th pleas, assigning as grounds of demurrer to each, (1) that it attempts to set up title to the property in Mrs. Bertha Behr, but does not connect the defendants, or either of them, with her title; (2) that it attempts to set up a title or claim to the property in a third person, and does not pray for notice to that person to come in and defend; and (3) that it sets up a title or claim to the property by a third person, “but is not accompanied by an affida,vit of its truth, and no notice is asked to be served on the alleged claimant to come in and defend.” The court overruled the demurrers, and issue was joined on all the pleas.</p> <p>The evidence adduced on the trial showed, in substance, that the plaintiff married the daughter of said M. L. Ger-son, and went with his wife to board at her father’s house, carrying with them the furniture here sued for, which plaintiff had bought some time previously; that most of the furniture was placed in the room occupied by them, and the other portions in other parts of the house; that plaintiff and his wife afterwards separated, and he quit the house, while his wife remained, and the furniture was used as before; that plaintiff, a few days before the commencement of this suit, made a written demand on defendants for the furniture, to which they replied, “We have nothing in our possession belonging to Moses Behrand that plaintiff had taken out a policy of insurance on the furniture before it was carried to Gerson’s house, which policy he transferred to his wife by written indorsement dated Uctober 3d, 1888. The indorsement is copied in the opinion, but the policy itself is not set out in the record. It appeared that a bed-lounge, one of the articles sued for, was bought by the plaintiff alter the assignment indorsed on the policy. The plaintiff testified “that the property belonged to him, and that he had never given or sold it to his wife.” The defendants testified that the property was left in M. L. Gerson’s house, under the circumstances above stated; that neither of them claimed any part of it, but they had used the articles which were not in Mrs. Behr’s room, with her consent, she claiming to own all of it.</p> <p>The plaintiff asked the court to instruct the jury, (1) that the written indorsement on the policy of insurance did not convey to Mrs. Bertha Behr the legal title to the property insured, but was only an assignment of the policy itself; (2) that the policy “did not cover the china and cutlery,” and therefore they did not pass by the assignment. The court refused each of these charges, and the plaintiff excepted ; and be also excepted to a charge given on request of the defendants, “that the jury, if they believed the evidence, must find for the defendants, for all articles sued for except the lounge.”</p> <p>The rulings on the pleadings, the charge given, and the refusal of the charges asked, are assigned as error.</p>

Heard, before the Hon. Thomas Cobbs. The bill in this case was filed on the 14th April, 1890, by Mrs. J osephine E. J ones, against her husband, or late husband, W. W. Jones, and sought a divorce on the ground of abandonment, and alimony. The parties were married in December, 1881, and lived together as man and wife, according to the allegations of the bill, until April, 1887, when the defendant drove his wife from his house.

Tried before tbe Hon. Thos. M. Arrington. Tbis action was brought by Randolph Young against Joseph D. Hubbard, and was commenced by attachment sued out on the 5th February, 1891. At that time the defendant was in the employment of the Louisville & Nashville Railroad Company, and the plaintiff sued out a garnishment against that company as his debtor.

•'Appeal from the Circuit Court of Cherokee. Tried before the Hou. JohN 33. Tally. This action was brought by Mrs. Sarah C. Garrett against M. N. Sewell, to recover damages for the removal of a partition fence, and was commenced on tlie 15tb ■ February, 1886.

<p>Appeal from tbe Circuit Court of Conecub.</p> <p>Tried before tbe Hon. JohN P. Hubbard.</p>

. Tried, before tbe Hon. James B. Head. Tbis action was brought by the administrator of Joseph J. George, deceased, who was killed while in the discharge of his duties as brakeman on the railroad of the defendant corporation; and was founded on the statute.- — Code, § 2590, The case was submitted to the decision of the court without a jury, but no exception was reserved to the judgment or conclusion of the court on the evidence, though several exceptions were reserved to its…

Tried before.the Hon. James B. Head. Action for money had and received, by I). M. Drennen against Henry B. Tompkins, on facts stated in the opinion.

Heard before the Hon. John A. Foster The bill in this case was filed by B. P. Dexter against Aug. Ohlander, and sought an injunction against a judgment at law which the defendant had recovered against the complainant, and the reformation or cancellation of the written instrument on which said judgment was rendered. ' Said written instrument was dated August 27th, 1887, signed by said Dexter, and in these words : “I have received from Mr. A. Ohlander a relinquishment of his…

Tried before the Hon. Thos. M. Abbington. This action was brought by the German-American Insurance Company, a New York corporation, against the Commercial Eire Insurance Companj7, an Alabama corporation located in Montgomery, and was founded on a contract, called a “re-insurance compact,” by wbicb tbe defendant agreed and undertook to assume a certain portion of tbe risks taken by tbe plaintiff, on tbe terms therein specified.

<p>Appeal from tbe City Court of Montgomery.</p> <p>Tried before tbe Hoii. Thos. M. Arrington.</p>

<p>Appear from tbe Circuit Court of Jefferson.</p> <p>Tried before tbe Hon. James B. Head,</p>

Tried before the Hon. A. H. BeNNEbs, as special judge. In the matter of the last will and testament of Mrs. Martha Montgomery, deceased, which was propounded for probate by her three sons, Jonathan, Felix and David Montgomery, who were therein named as executors, and was contested by Mrs. A. C. Eastis, a grand-daughter of the testatrix, on these grounds: (1) that the testatrix, at the date of the will, was of unsound mind; (2) that her signature to the instrument was…

Tried before tbe Hon. Joi-iN P. Hubbakd. In tbe matter of tbe last will and testament of Mrs. Anna O. Knox, deceased, which was propounded for probate by William Knox and Alex. Troy, who were therein named as executors, and was contested by Edward N. Knox, a grandchild, on tbe grounds of testamentary incapacity, undue influence, and fraud.

Chancery Court of Montgomery. Heard before the Hon. JohN A. Foster The bill in this case was filed on the 18th April, 1891, by Wm. 0. Pauli and his sister, grandchildren of Mrs. Anna Ó. Knox, deceased, against William Knox and Alex. Troy, her executors, and sought to set aside the probate of her last will and testament, and to remove the administration of the estate into the Chancery Court.

<p> Bill in Equity for Specific Performance of Parol Gift. </p> <p>1. Specific performance of párol gift of land. — A court of equity will not enforce, against the executors and heirs of the deceased donor, the specific execution of a parol gift of land, where it appears that the donor placed the donee in possession, under the declared intention of giving the land to him, and afterwards requested or verbally directed his executors to execute a deed to him, and that the donee erected some improvements of inconsiderable value.</p>

Tried before tbe Hon. John B. Tally. Tbis action was brought by John G. Winston against Mrs. A. Sbubert, tenant in possession, to recover two small tracts of land, one containing 40 acres, and tbe other 55 acres; and was commenced on tbe 3d December, 1889.

Heard before the Hon. JOHN A. Fostei;. The bill in this case was filed on the 1st July, 1891, by S. Roman against R. E. Bolling, and sought to enjoin a sale of lauds by tbe defendant under a power in a mortgage executed to bim by Giddens & Go., a mercantile partnership; also to adjust tbe priorities and equities of tbe parties under tbe mortgages held by them respectively, and for a foreclosure.

Tried before tbe Hon. W. W. WilkersoN. Tbis action was brought by tbe appellee, a private corporation located in Birmingham, against William Youngblood, and was founded on the defendant’s acceptance of a' draft for $1,000, drawn on him by Swem & Thomas, in favor of the plaintiff; which draft was dated at Birmingham, September 3d, 1889, payable to the plaintiff’s order, thirty days after date, and accepted by the defendant for the accommodation of said Swem & Thomas.

<p>Appeal from the Circuit Court of Fayette.</p> <p>Tried before the Hon. SaM. H. Speott.</p>

Tried before tbe Hon. Sam:. H. Sprott. Tbis action was brought by Edward J. Hagler against John W. Jones, to recoverthe possession of a tract of land particularly described in tbe complaint, and was commenced on tbe 20th July, 1888. Tbe plaintiff claimed tbe land as purchaser at a sale made by Moses McGfuire, as trustee in a deed of trust executed to him by David G. Jones, who was tbe father of tbe defendant.

Heard before the Hon. Wst. H. Tayloe. The facts of this case are fully stated in the opinion of the court, and in the former report (86 Ala. 357-64), and no further statement is necessary. On final hearing, on pleadings and proof, the chancellor dismissed the bill: and his decree is assigned as error. (1.) The promise to make a will is clearly proved.

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

Heard before tbe Hon. B. F. Cassady. Tbe bill in tbis case was filed on tbe 19tb November, 1889, by tbe Woodstock Iron Company and tbe Anniston City Land Company, two private corporations, against Alice C. Jones, Walter L. Jones and others, as lieirs at law of James M. Jones, deceased, and against A. H, Jones, wbo was not alleged to bold under tbem, or to bave any connection witb tbem; and sought to enjoin two actions of ejectment, one instituted by said heirs, and tbe other…

Tried before tbe Hon. John P. Hubbabd. Tbis action was brought by Eliza Bruce against ber bus-band, Stephen Bruce, to recover four bead of cattle, and was commenced on tbe 26th August, 1889. Tbe _ parties were formerly slaves, and were married after emancipation ; and they lived together until February, 1887, when-they separated.

Tried before tbe Hon. ”W. P. Chitwood. This action was brought by Thos. A. Sides against Mark Bedwine, and was commenced in a justice’s court. The plaintiff claimed $8.00 “for season of mare to plantiff’s^jack, on or about the 23d January, 1891,” and $15.00 due by account; but the only controversy was as to the former item.

Eeom tbe Cbaucery Court of Talladega. Heard before tbe Hon. S. K. MoSpaddeN. In tbe matter of tbe estate of Edward Gantt, deceased, tbe administration and settlement of wbicb was removed into tbe Chancery Court, under a bill filed by tbe administrator, May 28tb, 1878.

FROM tbe Chancery Court of Etowah. Heard before the Hon. S. K. McSpaddeN. The original bill in this case was filed on the 8th February, 1887, by Wm. H. Denson as trustee, and R. B. Kyle and. Sam. Henry, claiming to be the owners and beneficiaries, and sought to foreclose a mortgage, or deed of trust in the nature of a mortgage, wbicb Daniel Liddell and wife had executed to secure a debt due to W. J. Perdue.

Heard before the Hon. Thojias Cobbs. The bill in this case was filed on the 12th July, 1890, by Mrs. Elizabeth Tison and Mrs. Martha L. Agee, distributees of the estate of John Shackelford, deceased, on behalf of themselves and other distributees of said Shackelford’s estate, and as judgment creditors of R. H. Abercrombie, the admistrator of said estate, and of R. J. Thornton, the surety on his administration bond; against said R. J. Thornton, R. L. Thornton, and Annie T.…

<p>_ Action for Breach of Contract.</p> <p>1. Check or order of third person as payment. — Where plaintiff:, desiring to purchase an overcoat, procured an order for one from a third person, and presented it to the tailor to whom it was addressed, who thereupon took it, and promised to make the overcoat; but, the drawer of the order having failed in business before the coat was finished, refused to deliver it without payment; held, that the plaintiff could not recover for a breach of contract, unless the evidence showed that the order was accepted as payment for the debt.</p>

Tried before the Hon. H. C. Speaee. On the 13th June, 1889, Rogan & Co. commenced an action by summons and complaint against Jarius Collins, and sued out a garnishment in aid of the action against the Lady Ensley Furnace Company, a private corporation, as the debtor of said Collins.

■ Appeal from the City Court of Mobile. Tried before the Hon. O. J. Sehmes.

<p> Action on Contract for Personal Services. </p> <p>1. Conti act for services in recovering stolen property. — Under a contract between the superintendent of a railroad company and a detective officer, by which the former promised to pay the latter the reasonable value of his services in the discovery and prosecution of persons who had stolen goods from the cars of the railroad company, and the recovery of the goods ; a recovery can not be had on evidence showing that the goods recovered belonged to another railroad company, and that the thieves were convicted of larceny from the cars of that other company.</p>

<p>Petition to set aside Allotment of Homestead Exemption.</p> <p>1. RThem appeal lies-When a homestead exemption has been allotted to a decedent's widow, and a petition is afterwards filed to set it aside, an appeal does not lie from an order of the court dismissing the petition ex n2ero motu, the record not showing that any one appeared, or was notified to appear and contest it.</p>

Appeax, from tbe Chancery Court of Lowndes. Heard before tbe Hon. John A. Fosteb.

Heard before the Hon. S. EL. McSpaddeN. The bill in this case was filed on the 1st November, 1886, by the O’Conner Mining & Manufacturing Company, a private corporation organized under the laws of Alabama, against the Coosa Furnace Company and the Gadsden Iron Company, both Alabama corporations, the Wabash Iron Company and the Yigo Iron Company, two Indiana corporations, and against A. L. Crawford and his two sons, J. P. Crawford and A. J. Crawford.

Tried before the Hon. H. A. Sharpe. The opinion in this case states the material facts. The only matters assigned as error are, the refusal of a charge asked by the defendant, and eight charges given on request of the plaintiff. The charge asked and refused was as follows : “If the plaintiff, through its agent.

Tried before tlie Hon. JOHN P. Hubbakd. Tbis action was brought by E. S. Persons against E. S. Boy-kin. The original complaint contained only the common counts, each claiming $80, for goods sold and delivered, money loaned, &c. The defendant pleaded, in short by consent, the general issue, payment, and set-off.

Tbe record does not sbow tbe name of tbe presiding judge. Tbis was a motion by S. M. Hood for a summary judgment against John S. Blair and tbe sureties on bis official bond as sheriff, for bis failure to make tbe money on two executions, or orders of sale, wbicb bad come to bis bands to be executed, and wbicb were issued by a justice of tbe peace, on two judgments rendered by bim in attachment cases; one of said judgments being for $60, besides interest and costs, and tbe…

Tried, before tbe Hon. James B. Heal. This action was brought by tbe Elyton Land Company, a private corporation, against tlie South & North Alabama Railroad Company, to recover tlie possession of a tract or strip of land, which was thus described in the complaint: “A strip of land 35 feet wide, on the north side of and adjoining the line of the right-of-way of the Alabama Great Southern Railroad Company, as located and extended from the west side or line of section 29,…