Volume 96 — Alabama Reports

Mobile. Tried before tbe Hon. O. J. Semmes. Tbe opinion sufficiently describes tbe indictment, and also tbe plea of former conviction, to wbicb a demurrer was sustained. Tbe trial was bad upon issue joined on tbe plea of not guilty. It was shown on tbe trial, as appears from tbe bill of exceptions, that tbe defendant kept wbat is known as a “barrel bouse,” on Davis Avenue, a public street in tbe county of Mobile, but not witbin tbe limits of tbe city of Mobile.

Tried before the Hon. T. M. ARRINGTON. The appellant, Andrew Lewis, was indicted for the murder of Henry Lovelace “by striking bim witb a brick or a brickbat,” and was convicted of manslaughter in the first degree.

Tried before tbe Hon. JOHN P. Hubbabj>. Tbe indictment in tbis case charged that tbe defendant, Zack Gardner, “with intent to injure or defraud, did falsely make, alter, or forge an instrument in writing in words and figures substantially as follows: ‘Nov. 24, 1891. Mr. Frank Toungblood please oblige me now and I will pay soon as I come to town. Let Jim Jones bave as much as ten dollars dear Sir and it. Oblige me.

Tried before the Hon. O. J. Sejimes. The indictment in this case charged the defendant with the larceny of “sixty oat sacks of the value of ten cents each, the property of the Mobile Street Railway Company, a corporation under the laws of the State of Alabama.” On the trial, as the bill of exceptions shows, the only evidence offered by the State to prove the existence of the Mobile Street Railway Company as a corporation was the act of the General Assembly of Alabama,…

of Wilcox. Tried before tbe Hon. James T. Beox. Tbe statement of offense, filed by tbe solicitor in tbe County Court, and upon which tbe appellant, Clayton Ghent, was tried and convicted, charged, that be “did’ knowingly and willfully drive or carry cattle belonging to W. Boss, which cattle at tbe time were running at large in a district where it was lawful for such animals to run at large, into another district where it was not lawful for such animals to run at large, with…

Tried before the Hon. O. J. Semmes. The appellant, Nathan Scott, was tried and convicted on an indictment charging him with burglary, and with the larceny of a pistol. The State having offered evidence tending to show the defendant’s guilt, he was examined as a witness in his own behalf. In the course of his examination, he stated that he did not at any time ask Ed. [Reynolds to claim the pistol. Ed. Keynolds was examined as a witness in rebuttal for the' State.

' Tried before tbe Hon. John P. Hubbaeb. Tbe indictment in tbis case charged that tbe defendant, Charles Harris, “unlawfully and intentionally, but without malice, billed Sump Lovelace by shooting him with a pistol.” Tbe defendant pleaded not guilty. He was convicted, and appeals.

Tried before tbe Hon. S. H. Sprott. Tbe defendant was tried upon issue joined on tbe plea of not guilty. Evidence introduced by tbe State tended to sbow tbat tbe defendant and the deceased quarrelled while on tbe road to Livingston, near tbe five-mile post, and tbat tbe defendant killed tbe deceased in a ravine near tbat place.

AppeaXí from the Circuit Court of Butler. Tried before tbe Hon. John P. Hubbabd.

<p>Appeal from tbe Circuit Court of Marengo.</p> <p>Tried before tbe Hon. ¥i. E. Clakke.</p>

Tried before tbe Hon. T. M. ARRINGTON. Tbe defendant, Charles Langston, was convicted of larceny, and appeals. Tbe court charged tbe jury, “that so far as tbe evidence was concerned in tbis cause, be would bold that tbe property stolen was not a fixture, but was personal property.” Tbe defendant excepted to tbis charge.

. Appeal from tbe Circuit Court of Sbelby. Tried before tbe Hon. LeEoy F. Box. The appellant, James Handley, was convicted of murder in tbe first degree, and appeals. On tbe trial, as shown by tbe bill of exceptions, tbe State introduced, evidence, which was not controverted, that tbe defendant, in tbe latter part of January, 1889, in Sbelby county, shot Joseph Bowman with' a pistol,’ from which wound be died in a few minutes thereafter.

Tried before tbe Hon. S. E. GreeNE. Tbe nature of tbe indictment in tbis case is stated in tbe opinion.

Tried before tbe Hon. T. M. Arrington. Tbe indictment in tbis case charged that the defendant, Eli-shaWalker, “on an application for a new trial in a civil action in tbe Circuit Court of Montgomery county, in wbicb one Jacob Griel was plaintiff and said Elisba Walker defendant, being duly sworn by tbe clerk of said court, wbo bad authority to administer such oath, falsely swore that be (Walker) never executed tbe mortgage wbicb was offered in evidence on tbe trial of said…

Tried before tbe Hon. S. H. Sprott. Tbe indictment in this case contained four counts.

<p> Indictment For Illegal Sale of Liqudrs. </p> <p>1. Prohibitory liquor law in Bibb county; sufficiency of indictment.' The act approved February 28,1881 (Sess. Acts• 1880-81, p. 187), providing that “it shall be unlawful for any person or persons to sell, give away, or otherwise dispose of, any spiritous, vinous or malt, liquors, * * * '* within the limits of the County of Bibb,” a count'in an' indictment charging that the defendant'“sold spiritous, vinous or malt liquors without a-license, and contrary to law,” is sufficient; the general statute (Code, § 4037) declaring an indictment in that form sufficient in prosecutions “for any violations of any special and local laws regulating and prohibiting the sale of 'spiritous, vinous, or malt liquors within the place specified.” • ■ '</p> <p>2. Engaging in or carrying on business without license;. constituents of the offense. — Engaging in or carrying on the business of a retail dealer in spiritous, vinous, or malt liquor, ata place at which the law does not’permit the licensing of such business', is not!an offense against' the statute (Code, § 3892) providing for the punishment of any person who “engages in or carries on any business for which a license is required, without having taken out such license.’.’</p> <p>3. Selling liquor in violation of prohibitory statute; only one act can be proved. — When the defendant is charged With selling iiquor' without' a license and contrary to law, the State should not, against the objection of the defendant, be alloyed to introduce proof of more than one sale.</p>

Tried before tbe HoN. S. E. Greene. Tbe appellant, Kid Matthews, was tried for grand larceny, and convicted.

Tried before the Hon. Jahes B. Head. Upon the introduction of all the evidence, the court, in its géneral charge to the jury, instructed them as follows: “If the pistol was in such a position under defendant’s coat that the defendant’s coat, by reason of being over it, prevented it being seen by a person on the left front of defendant, and but for his coat the pistol could have been seen by a person on the left front of defendant, then the defendant was guilty, although it…

Tried before tbe Hon. JOHN B. Tally.. Tbe indictment in tliis case- was found by a grand jury of St. Clair county, and charged tbe appellant, Robert Scales, with tbe murder of James Calvin McCain, “by shooting him with a pistol.” On tbe .application of tbe defendant, tbe venue was changed, and tbe case removed to tbe Circuit Court of Blount county, where tbe trial was bad.

Tried before tbe Hon. William H. Pabks. Tbe indictment in tbis case charged tbe appellant, Julian Ann Banks, with living in a state of adultery or fornication with John Phillips. • Tbe evidence for tbe State tended to show that tbe lant and John Phillips cohabited together, and that prior to such cohabitation John Phillips had ’been married to other woman, one Emma Perry, who was still living.

Tried before the HoN. James B. Head. The appellant, Jim Springfield, was indicted for tbe murder of James Wilder, by shooting him with a pistol.

Tried before the HoN. J. M. Carmichael. The appellant, Jasper Christian, was convicted of an assault with intent to murder Will Riley. On the trial, as is shown by the bill of exceptions, the State proved that the defendant shot Will Riley with a gun.

Tried before tbe Hoii. JohN H. Bisque. Tbe indictment in tbis case charged tbat “before tbe finding of tbis indictment Tally Welsh, whose true Christian name is to tbe grand jury unknown otherwise than as stated, unlawfully and with malice aforethought killed Will Welsh, whose true Christian name is to the grand jury unknown otherwise than as stated, by. shooting him with a pistol, against the peace,” etc. The defendant pleaded “not guilty,” and was convicted of murder in…

Tried before tbe Hon. John B. Tally. Tbe testimony of tbe witness Bell, wliicb is referred to in tbe opinion, was uncontradicted. On tbe evidence adduced, the court, at tbe request of tbe solicitor, gave tbe following written charge: “If tbe jury believe evidence, they will find tbe defendant guilty as charged in tbe indictment.” Tbe defendant duly excepted to tbe giving of this charge.

<p> Indictment for Murder in the Second Degree. </p> <p>1. Indictment for murder in the second degree. — An indictment charging that the defendant “unlawfully and with malice aforethought, but without deliberation or premeditation, did kill,” etc., charges murder in the second degree.</p> <p>2. Evidence ns to defendant’s insanity not admissible under the general issue —On a trial for homicide, evidence upon the question of the defendant’s sanity or insanity at the time of the killing is not admissible under the plea of the general issue, the statute (Sess. Acts 1888-89, p. 742) requiring an issue as to defendant’s responsibility by reason of his alleged insanity to be raised by a special plea.</p>

Tried before the Hon. JohN-P. Hubbakd. The indictment in this case charged that the defendant, John Jones, “unlawfully, and with malice aforethought, did assault John Maloy, with intent to murder him.” Judgment was rendered upon a verdict of the jury finding the defendant guilty as charged in the indictment.

Tried before the Hon. JOHN H. Disque. The indictment in this case was as follows: “State of Alabama, Etowah County, City Court of Gadsden, January Term, A. D. 1892.

Petition by Andrew Bicliardson for tbe writs of certiorari and habeas corpus, to procure bis discharge on bail, wbicb bad been refused by Hon. E. Herndon Glenn, tbe probate judge of Bussell county.

Atpeal from the City Court of Montgomery. Tried before the Hon. T. M. ArriNGTon. 1. The court has no power to enter judgment nunc pro tunc after the adjournment of the term at which the conviction was had, unless the suspension of the sentence is at the instance of the defendant, or the delay is attributable to him, or is caused by the court, or the negligence of the clerk. — 1 Freeman on Judgments, § 57, et seq; Ex parte State, in re Neioton, 10 So. Eep. 549. 2.

Tried before the Hon. J ohn B. Tally. The appellant, Lewis W. Billingsley, was indicted in July, 1887, for the sale of spirituous, vinous or malt liquors, “contrary to an act of the General Assembly of Alabama, approved February 28, 1886, entitled ‘An act to prohibit the sale of spirituous, vinous or malt liquors, or other intoxicating beverages, in the counties of Etowah, Cherokee, DeKalb and Tallapoosa, State of Alabama.’ ” (Sess. Acts 1880-81, p. 167).

Tried before tbe Hon. John B. Tally. Tbe evidence in tbis case is sufficiently stated in tbe opinion.

Tried before tlie Hon. Jomsr B. Tally. Tlie indictment in this case charged Bud Amos, Bube Amos, and Tobe Amos with., the murder of William Fuller.

<p> Indictment for Selling Liqov/r without License. </p> <p>1. Failure to object to question calling for irrelevant Ustimony. — Where a defendant in a criminal case fails to object to a question calling for irrelevant testimony, it is not a matter of right on his part to have the answer excluded.</p> <p>2. Argument of counsel. — In a trial for selling liquor without a license, where there is evidence that a witness for the defendant, who was a member of the grand jury which found the indictment against him, took a drink with the sheriff on the day of the trial, a statement of the solicitor in his argument, that “it is an outrage when the sheriff of your county and a grand juror are drinking together while court is in session,” is not improper.</p>

Tried before tbe Hon. JOHN Moose. Tbis was an action brought by tbe appellee, William A. Kimbrough, against tbe appellant, The Mobile & Birmingham Railway Company, to recover damages for tbe alleged negligent killing of a mare, tbe property of tbe plaintiff. There was no dispute as to the fact that tbe mare was killed by one of tbe defendant’s engines.

Tried before the Hon. JONATHAN HARALSON. This action was brought by Thomas M. Johnson, Julian B. Parke and James B. Jones, suing as partners composing the firm of Johnson, Parke & Go., against William H. Hunt, as the acceptor of a bill of exchange.

Heard before the Hon. W. H. Tayloe. The sale at which the appellee, Louis Touart, became the purchaser of the land, an undivided interest in which was covered by the mortgages to the appellant, Joseph Espalla, Jr., and to Lienkauff & Strauss, respectively, was under a decree of the Probate Court, rendered on a petition by the tenants in common for the sale of the land for distribution, on the ground that it could not be equitably divided or partitioned among them.

Tried before tbe Hon. W. E. Clarke. Tliis is an action by Mary J. Murpbree against tbe City of Mobile, to recover damages for personal injuries alleged to have been suffered by tbe plaintiff in consequence of tbe defective and unsafe condition of tbe sidewalk of one of tbe streets of tbe city. Judgment was entered upon a verdict in favor of tbe plaintiff. Tbe defendant moved for a new trial, on tbe following grounds: (1.) Tbe verdict was contrary to tbe evidence.

Heard before the Hon. W. H. Tayloe. The averments and prayer of the bill in this case are sufficiently stated in the opinion.

<p> Trial of Bight of Property. </p> <p>1. Trial of right of property; claim of joint mortgagor, who has paid debt secured, to enforce the mortgage for his indemnity, can not be tried in. The plaintiff and the defendant, to secure a joint indebtedness, executed a mortgage on personal property which they owned together. Afterwards, by a contract between them, the defendant became the owner of the mortgaged property, and agreed to relieve the plaintiff of all liability on the joint indebtedness. The creditor not having consented to this arrangement, the plaintiff settled with him and. took from him an assignment of the mortgage. The plaintiff, as the transferee of the mortgage, having sued out an attachment against the defendant and had the writ levied on the property covered by the mortgage, a claim to it was interposed by a third person ; Held, that whatever claim apon the property the plaintiff acquired by the transfer of the mortgage to him could not be made available in a proceeding under the statute (Code, §§ 3004 el *eq.) for the trial of the right of property.</p>

<p>Appeal from tbe Circuit Court of Montgomery.</p> <p>Tried before tbe Hon. John P. Hubbakd.</p> <p>cited, Farley v. Gilmer, 12 Ala. 141; Dunn v. Davis, 12 Ala. 135; Woody v. Findlay, 9 Ala. 716; Schaffer v. Lametta, 57 Ala. 14; Percy v. Lametta, 63 Ala. 374; Pickett v. Pope, 74 Ala. 122; McCorry v. King, 39 Am. Dec. 165; Bass v. Bass, 88 Ala. 408; Woodst-och Iron Co. F'utlenwider, 87 Ala. 584; McArthur v. Carrie, 42 Ala. 95; Gosson v. Ladd, 77 Ala. 223 ; Bank v. Ballard, 83 Ky. 481; McArthur v. Scott, 113 U. S. 340; 1 Jarm. on Wills, 751, 727; Tiedeman on Keal Property, § 715.</p> <p>cited, McArthur v. Carrie, 32 Ala. 88 Hefflin v. Harrison, 54 Ala. 552; Garrett v. Garrett, 69 Ala. 429; Matthews v. McDade, 72 Ala. 377 ; Gosson v. Ladcl, 77 Ala. 223; Moulton v. Henderson, 72 Ala. 433; Connell v. Cole, 89 Ala. 381.</p>

Heard before the Hon. Wi. H. Tayloe, Special Judge. The bill in this case was filed May 2, 1889, by Jacob Pollock and Leopold Lowenstein, partners in business under the firm name of J. Pollock & Co., and several other persons, all claiming to be creditors of M. Meyer & Co. wbo, prior to November 27th, 1888, were engaged in a large mercantile business in tlie city of Selma.

<p>Appeal from the Chancery Court of Mobile.</p> <p>Heard before Hon. W. H. Tayloe.</p>

Heard before the Hon. John A. Foster The nature of the bill in this case is stated in the opinion.

Tried before tbe Hon. JOHN P. Hubbard. On tbe 4tb April, 1887. Tillis & O’Neal brought suit by attachment against Z, T. Allen, and bad a writ of garnishment issued, to James A. Prestwood. Tbe return of tbe sheriff shows that the writ of garnishment was served on Prestwood April 4,1887. At the term of the court in March, 1888, a conditional judgment by default was rendered against the garnishee.

Tried before tbe Hon. T. M. Aekington. On September 2, 1891, J. B. Warren & Co. brought suit by attachment against W. P. Hurn in the City Court of Montgomery. The sheriff oí Montgomery county executed the writ by serving a summons in garnishment on H. H. Matthews as clerk of the City Court.

Tried before tbe Hon. JOHN Moobe. This action was brought by Willis Brewer against Z. T. Rudolph, B. T. McWhorter and J. L. Holmes, was commenced on March 28,1890, and was founded on a promissory note alleged to have been made by the defendants, and by the payees indorsed, for value, and before maturity, to the plaintiff.

Heard before the Hon. John A. Fostee. The original bill in this case was filed June 19, 1891, by William W. Knox, against Fanny Allums, J. E. Holmes, Ben Knox, a minor over the age of fourteen years, and W. P. Bulloch, the guardian of said Ben Knox; and prayed (1) that a decree be made declaring that said Ben Knóx has no right, title, claim or interest in the lands described in the bill; (2) that said Bullock, as the guardian of Ben Knox, be required to account for the…

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

Tried before the Hon. J. M. Caemiohael. Charles Henderson and W. I). Henderson, suing as partners doing business under the firm name of Henderson Bros. & Co., brought this action against J. E. Foy to recover damages for the alleged conversion of seven bales of cotton. The defendant pleaded the general issue.

<p>Appeal from tbe Circuit Court of Pike.</p> <p>Tried, before tbe Hon. JOHN P. HubbaRD.</p> <p>cited Const, of Ala. Art. 4, § 2; Dane v. McArthur, 57 Ala. 448; Walker v. State, 49 Ala. 329; Day Shell Road v. O’Donnell, 87 Ala. • 376; Stewart v. Commissioners of Sale Go.,82 Ala. 209; Sandy v. State, 60 Ala. 18; Dillard v. Webb, 55 Ala. 468; Cooley’s Const. Lira. 364.</p>

Tried before tbe Hon. J. B. Dowdell. Tbe facts of tbe case are sufficiently stated in tbe opinion. Tbe court, at tbe request of tbe plaintiff, gave tbe general affirmative charge in bis behalf, to which tbe defendants duly excepted.

Tried before tbe Hon. W. E. ClaRKE. Tbis action as originally brought by tbe appellees, Hand-ley, Reeves & Co., was against I). C. Alexander and James T. McDonald, indiyi&ually, and as partners composing tbe firm of D. C. Alexander & Co. Tbe complaint was amended by adding J. D. Alexander as a party defendant.

<p> Bill in Equity for Cancellation of Mortgage, and for Injunction of Action at Law. </p> <p>1. Bill in equity to cancel mortgage, alleging payment of debt; sufficiency of offer to do equity. — Where a bill in equity to cancel a mortgage and to restrain the purchaser at a sale under the power in the mortgage from prosecuting actions for rent and unlawful detainer, alleges that the mortgage debt was fully paid before the sale, and oilers to do equity by paying whatever may be found due on the mortgage debt, if anything, and to submit to such decree as the court might render, the averments are sufficient to authorize relief against the mortgage.</p> <p>2. Dissolution of injunction on denials of answer. — When the complainant’s right to an injunction rests upon the fact that a mortgage debt has been paid as averred, and this allegation is fully and positively denied in the sworn answer of the defendant who, the bill alleges, is claiming the right to enforce the mortgage as the transferee thereof,it is proper to dissolve the injunction on such denials,though the answer of another defendant, who is made a party under a general allegation that she claims some interest in the property, and who is not shown by the bill to have knowledge of the transaction in respect of which answers are required, is not verified</p> <p>3. Injunction, of action at law. — It is proper to refuse an injuction of the prosecution of an action at law, on grounds which'are available as a defense at law.</p> <p>4. Power to sell lands in mortgage follows assignment of debt. — Under the statute (Oode, § 1844) the power of sale in a mortgage of lands passes to the assignee of the mortgage debt.</p>

Heard before the Hon. S. K. McSpadden. (1.) On an appeal from a final decree, errors may be assigned on a decree overruling a demurrer, if no appeal from such interlocutory decree was taken within thirty days of its rendition.- — Code, § 3612. (2.) Trespass to lands is the gravamen of the bill. It is shown that Wadsworth is in possession, and is cutting the timber under claim of title.

Heard before the Hon. JÓhN A. Postee. The bill in this ease was filed May 10, 1890, by Herman Hirsch and Abe Hirsch, suing as partners composing the firm of Hirsch Bros., and sought the foreclosure of a mortgage on lands, executed to them by Thomas H. Moody and his wife, Margaret Moody, on January 15, 1886, and which was filed for record on the same day in the office of the judge of probate of Bussell county.

Tried before the Hon. J. M. Caemichael. Action by Albert Roquemore against the Central Railroad and Banking Company of Georgia to recover damages for the negligent killing of the plaintiff’s cow.

From tlie City Court of Montgomery. Heard before'- tlie Hon. J. M. Chilton, Special Judge. Tlie.se two cases were argued and submitted together. The opinion states tlie nature of tlie cases and tlie proceedings in them.

<p> Action to liecover Damages for Breach of Contract. </p> <p>1. Agency; evidence of', and of acts and declarations of agent; order of proof. — Where the defendant is sought to be charged upon a contract made by one V. as his agent, if the. fact of agency is disputed, and the matter rests in parol, the inquiries as to the éxistence of the agency and as to the extent of the agents authority to bind the principal are questions for the jury; and while it is the better practice to first introduce proof of the agency, yet it is not error that evidence of the acts and declarations of the alleged agent was admitted before the introduction of the proof to establish the fact of agency, if such proof was afterwards made and submitted to the jury.</p> <p>2. Measure of damages; burden of proof. — In an action to recover damages for the breach of a contract to sell and deliver 250 barrels of potatoes, “free on board the cars at Philadelphia,” for shipment to the plaintiff at Eufaula, Ala., the measure of damages is the difference between the contract price and the market value of the potatoes at Eufaula at the time agreed on, less the cost of transportation ; and it is incumbent on the plaintiff to prove the cost of transportation, that fact being an indispensable element in the measure of plaintiff’s recovery.</p>

<p> Action for Damaged against Railroad Company, for Killing </p> <p>1. Statutory liability of railroad, company, for injuries to live-stock; burden of proof. — In an action against a railroad company for damages for the killing of plaintiff’s live-stock by one of defendant’s trains, when it is proved that the stock was so killed, the statute (('ode, footnote to § 1147) casts upon the defendant the duty of acquitting itself of any negligence by showing that the requirements of section 1144 of the Code were complied with, or by proving to the satisfaction of the jury that any attempt to comply with them was rendered futile by the circumstances, without any fault on the part of the defendant’s employees.</p> <p>2. Same; duty to maintain look-out. — The duty of the engineer, or other person in charge of a moving train, to take precautions against inflicting injuries upon live-stock arises not only when he sees an animal on the track, or in dangerous proximity thereto, but, also, when by the exercise of due diligence he mieht have seen it. A. failure in either of these respects is negligence, for which the railroad company is liable.</p>

Tried before the Hon. JOHN B. Tally. This is an action by Jacob A. Nave, as tlie administrator of tlie estate of Benjamin F. Nave, deceased, against tbe Alabama Great Southern Bailroad Company, a domestic corporation. The case is sufficiently stated in the opinion. Judgment for defendant, and plaintiff appeals.

Aiweal from the Chancery Court of Dale. Heard before the Hon. John A. Eostbb.

<p>Appeal from the Chancery Conrt of Montgomery.</p> <p>Heard before the Hon. JOHN A. Fostee.</p> <p>cited Perry v. New Orleans, Ac., R. Co., 55 Ala. 413; Columbus A W. R. Co. ■v. Witheroiu, 82 Ala. 190; In re Robbins, 34 Minn. 99; Taylor v. Armstrong, 24 Ark. 102; Anniston A C. R. Go. v. Jacksonville & C. R. Co., 82 Ala. 297; Mobile A G. R. Co. v. Ala. Mid. R. Co., 87 Ala. 501; Elliott on Hoads, pp. 161, 551; 2 Dillon on Munic. Corp. §§ 703, 704, 404a; Lewis on Em. Domain, §§ 10, 632; High on Injunctions, § 622.</p> <p>cited M. A G. R. Co. v. Ala. M. R. Co., 87 Ala. 520; Cooper v. A. <f; A. R. Co., 85 Ala. 106; Schurmeier v. St. P. & P. R. Co., 8 Minn. 113; Zabriskie v. Jerseif City, Ac., R. Co., 13 N. -J. Eq. 314; Booraen v. N. H. Co. R. Col, 40 lb. 557; Hamilton v. H. Y. A H. R. Co., 9 Paige, 171; Garnett v. Jacksonville, &c., B. Go., 20 Fla. 889 ; Spencer v. Point Pleasant & 0. B. Go., 23 W. Va. 406; 55 Ala. 413.</p>

Tried before tlie Hon. J. M. Carmichael. The case is sufficiently stated in the opinion.

Heard before tlie Hon. John A. Foster. Tlie bill in this case was filed by Carrie Hollis, the widow of Ezekiel Hollis, deceased, and B. A. Hollis and others, the heirs at law of said Ezekiel, against E. W. Harris, Thomas J. Harris, and others, heirs at law of W. T. Harris, deceased; and its purpose was to have the defendants enjoined from prosecuting a statutory action in the nature of ejectment which they had commenced for the recovery of certain land mentioned in the bill,…

Tried before the Hon. J. M. CARMICHAEL. This was an action brought by the Eufaula Drug Company, a partnership composed of G. A. Beauchamp, 0. H. Beach andM. L. Ramser, against Robert Buist, jr., to recover damages for the alleged breach of contract made by the defendant to sell the plaintiffs 150 barrels of Irish potatoes.

Heard before the Hon. W. W. WilkersoN. The bill in this case was filed b}r the Edison Electric Illuminating Company, a corporation, against Hamilton T. Beggs; and it alleged that said Beggs had been the treasurer and general manager of the Merchants Electric Light and Power Company, a corporation, before the consolidation of that company with the complainant; that, as such treasurer and general manager, he received and disbursed all the moneys and other property of said…

Heard before the Hon. Thokas Cobbs. The bill in this case was filed on the 18th June, 1890, by John A. Brown, against Benjamin E. Freeman, and sought the cancellation of a mortgage to the defendant, and its removal as a cloud upon the complainant’s title to a tract of land purchased by him from one Monroe.

Tried before tbe Hon. H. C. Speaxe. This was an action by Alston Boyd and C. E. Tucker, suing as partners composing tbe firm of A. Boyd & Go., against Alvin N. Jones and Jobn A. Pope, partners composing tbe firm of Jones & Pope, and was commenced September (5, 1890.

Tried before the Hon. H. A. Shaiípe. This action was brought by Alonzo F. Mencer, suing by his next friend, J- H. Dean, against the appellants, J. W. Worthington, and others, as partners, composing the firm of J. W. Worthington & Oo., to recover damages for personal injuries sustained by plaintiff while in defendants’ employment. The pleas were the general issue, and contributory negligence. On the trial, the plaintiff was examined, as a witness in his own behalf.

Tried before the Hon. W. W. 'WilkersON. On the 14th day of December, 1888, the appellant, J. D. Truss, recovered a judgment before a justice oí the peace of Jefferson county, against the Birmingham, LaGrange & Macon Bailroad Company, a corporation, for the sum of ninety dollars, and the costs of suit. Writs of garnishment issued upon this judgment were served upon Joseph E. Johnston and E. W. Bucker. The justice of the peace rendered judgment against them as garnishees.

tbe City Court of Birmingham. Tried before tbe Hon. H. A. Shabpe.

Tried before tlie Hon. J. B. Head. Tbe appellee, W. A. Knox, sued tbe appellant, tlie Morris Mining Company, a corporation, to recover damages for tbe alleged breach of a written contract by which the defendant employed tlie plaintiff for one year from March 5, 1889, as store-manager and buyer for defendant’s two stores at Red-ding and Alice, in Jefferson county, Alabama, at an annual salary of $1,500.00.

Tried before tbe Hon. H. A. Sharpe. This action was brought by B. B. Bivins, a minor, suing by his next friend, James A. Bivins, against the Georgia Pacific Bailway Company. Judgment was rendered for the defendant, and the plaintiff appeals. The facts are sufficiently stated in the opinion.

Heard before tbe Hon. H. A. SHARPE. Tbe bill, as amended, was by Joseph B. Wolfe and Jennie Wolfe, suing as stockholders in tbe Mary Pratt Furnace Company, a domestic corporation, in behalf of themselves and all other stockholders in said, corporation who might desire to participate in the litigation, against said corporation, and against W. T. Underwood, George L. Morris, and A. AY.

Heard before tbe Hon. H. A. Shabpe. This was a bill in equity filed by Rebecca E. Denny against tlie Elyton Land Company and others, for an allotment of dower in certain lands described in the bill.

<p> Bill in Equity by Creditors, to set aside Conveyances as Fraudulent. </p> <p>1. Amendment of bill in equity — A bill filed by creditors to set aside as fraudulent a conveyance of land by the debtor, which alleges that the conveyance of land and a sale by the debtor of his stock of goods were made at the same time and were both parts of one fraudulent scheme, may be amended by adding the purchasers of the stock of goods as parties defendant, and making the bill one to set aside both the conveyance of the land and the sale of the stock of goods.</p> <p>2. Equity pleading; multifarioumess. — A bill filed by creditors to set aside as fraudulent several conveyances made by the debtor at the same time, and alleged to be all parts of one fraudulent scheme, is not rendered multifarious by the joinder as defendants of the several fraudulent grantees who claim different portions of the debtor’s property.</p>

Tried before the HoN. W. W. Wilkekson. This was an action of trespass brought by J. B. Bayliss against Montgomery, Dryer & Company, a corporation, and its sureties on a bond of indemnity given to the Sheriff to secure the levy of a writ of attachment, issued in a suit by said corporation against M. C. Bayliss, upon certain goods and merchandise which said J. B. Bayliss claimed to oavu.

Tried before the Hon. James B. Head This was an action by G. M. Torgerson against “J. W. Hughes, administrator of the estate of B. M. Hughes.” The complaint contained a common count claiming the sum of 1686.60, “due for work and labor done for defendant’s intestate at said intestate’s request;” and a special count claiming the same sum as due under a contract, the terms of which were alleged, and seeking to enforce the statutory lien of a mechanic or contractor, on a…

Tried before tbe Hon. H. A. Sharpe. Tbe facts are sufficiently stated in tbe opinion. A jury having been waived, tlie case was tried by tbe court, sitting without a jury, and judgment was rendered for the claimant. The appellant duly excepted, and now assigns the rendition of said judgment as error.

Heard before the Hon. Thojias Cobbs. The bill in this case was filed on the 1st February, 1890, by Mrs. Mary D. Tate, against J. L. Lockwood, Miss C. E. Berry, and Thomas S. Tate, the husband of the complainant. J. L. Lockwood answered the bill. Decrees pro confesso were taken against the other defendants. The facts are sufficiently stated in the opinion. On the final submission of the cause, on the pleadings and proof, a decree was rendered granting the relief prayed for.

Heard before tbe Hon. ¥i. H. SimpsoN. Tbe bill in tbis case was filed by tbe Trowbridge Furniture Company, a corporation, and several others, persons and corporations, claiming to be creditors at large of tbe Decatur Furniture Company, a corporation, against B. F. Gibson, said Decatur Furniture Company, and J. L. M. Estes; and sought to have set aside and annulled as fraudulent a transfer of property by said Decatur Furniture Company to said B. F. Gibson, to have a lien…

Tried before tbe Hon. H. A. Shaepe. Tbis action was brought by tbe appellee, John McPoland, against tbe Mayor and Aldermen of tbe City of Birmingham, a municipal corporation, and was commenced November 7, 1891. Tbe complaint contained three counts. In tbe first count, tbe plaintiff claimed of tbe defendant tbe sum of $1778.15-100 alleged to be due under a written contract for the building of a sewer by tbe plaintiff for tbe defendant.

Tried before the Hon. H. A. SHARPE. The Mutual Loan and Trust Company, a corporation, and others, stung as stockholders of the Birmingham Mining and Manufacturing Company, a corporation, filed the bill in this case, against said Birmingham Mining and Manufacturing Company, and Maclin Sloss, Fred Sloss, and Arthur W. Smith, individually, and as executors under the will of J. W. Sloss, deceased, andBobert Warnock.

Clair. Heard before tbe Hon. S. K. MoSpaddeN. The original bill in this case was filed on the 24th day of March, 1891, by Benjamin E. Hawkins, against Margaret E. Pearson, the widow of John T. Pearson, deceased, and against Jesse B. Pearson and others, children and heirs at law of said John T. Pearson, deceased, all said heirs at law except one, John H. Pearson, being children of Medora I. Pearson, a former wife of John T. Pearson, deceased; and sought the reformation of a…

Tried before the Hon. John H. Disque. The plaintiffs excepted to the ruling which is referred to in the opinion, and took a non-suit, with a bill of exceptions, with leave, &c.

Heard before the Hon. S. K. McSpaddeN. The bill in this case was filed January 11,1892, by the appellant, Asa Weems, against the appellees, Pace W. Roberts and John McGorgan; and prayed that a conveyance made by the complainant to said McGorgan, which was in form an absolute deed, be declared a mortgage, and that the complainant be allowed to redeem.

Tried before the Hon. B. F. Cassady. This was an action by the appellee, the Lowery Banking Company, a corporation, against the appellant, B. P. Evitt. The rulings of the court upon the pleadings are sufficiently shown in the opinion.

<p> Action for Forcible Entry and Unlaiuful Detainer. </p> <p>1. Amendment of complaint; complete change of subject-matter. — On an appeal from the j udgment of a justice of the peace in an action of forcible entry and unlawful detainer, the plaintiff cannot amend liis complaint in the Circuit Court so as to substitute other land in the place of that described in the complaint originally filed in the justice’s court, as the result of such amendment would be a complete change in the subject-matter of the suit.</p>

Heard before- the Hon. JAMES A. Tallmak. On tlie 17th day of July, 1889, a petition was filed in said court by James E. Alford, as administrator of the estate of Jefferson Alford, deceased, asking an order to sell lands for tlie payment of debts. Tlie petition was in due form, and made the widow and lieirs of said decedent parties defendant.

<p> Bill in Eqitity by Grantor, for Cancellation of Deed, or to establish Resulting Trust in Land. </p> <p>1. Cancellation of deed; non-performance of agreement by grantee. Whore one agreed to assist a manufacturing company with land and money, in consideration ofpts agreement to establish its works on the land and operate them for a stated time, and of the incidental benefits expected to accrue therefi om to the grantor, and the company erected its works on the land, and carried on its manufacturing operations thereon for some time, but, immediately after a deed to the land was executed and delivered, ceased to operate its works, and they have remained idle since, the grantor is not entitled to a cancellation of the deed because of the company’s failure to operate its works for the stipulated time.</p> <p>2. Resulting trust. — The owner of land agreed to assist a manufacturing company with land and money, in consideration of its agreement to establish its works on the land and operate them for a stated time, and of the incidental benefits expected to accrue therefrom to the grantor; and, in pursuance of this agreement, the land was conveyed, and money was advanced to the company to purchase machinery, and ihe money advanced was used for the purpose agreed on. On the failure of the company to operate its works for the stipulated time, the grantor filed a bill for the cancellation of the deed, and to establish a trust in the company’s property to the extent of tlie money so advanced. The bill did not point out what machinery was purchased with the money advanced, nor allege that the company, at the time of making said agreement, had no intention of performing it. Held, that no trust should be declared in the company’s property for the money so advanced; the remedy being an action at law for a breach of the agreement.</p> <p>3. Declaring on contract within statute, of frauds. — Where a bill in equity alleges a contract which is required by the statute of frauds to be in writing, but does not allege whether it was verbal or in writing, on demurrer, and on motion to dismiss the bill for want of equity, the contract alleged in the bill must be taken to be in writing.</p> <p>4. Motion, to dismiss for want of equity; amendable defects in bill. — On motion to dismiss a bill for want of equity, amendable defects in the bill will not be considered, but are regarded as amended; andan averment that a deed was executed to complainant, it being apparent that defendant was intended, the copy of the deed attached to the bill as an exhibit showing that the defendant was the grantee, was an amendable defect.</p>

• Tried before the Hon. B. F. Cahsady. This was an action by Annie Weir, as the administratrix of the estate of Charles Y. Weir, deceased, against the United States Bolling Stock Company, a corporation, to recover damages for the alleged negligence which caused the death of the intestate.

Tried before the Hon. JOHN B. Tally. This was an action by the appellant, William E. Battles, against the appellee, James A. Tallman, who was probate judge of Etowah county, for the recovery of the statutory penalty of two hundred dollars, for issuing a license for the marriage of the plaintiff’s minor daughter, contrary to the provisions of the statute. — Code, 5$ 2318. The questions raised on the introduction of evidence are sufficiently shown in the opinion.

Tried before tlie Hon. B. F. Cassady. The appellee, the Perry Stove Manufacturing Company, a corporation, brought suit by attachment against Lewy & Goetter, and had the writ levied on a stock of goods, to which the appellant, Philip Avary, interposed a claim under a prior conveyance by Lewy & Goetter. On the trial of the right of property, judgment was rendered in favor of the plaintiff in attachment, and the claimant appeals.

Tried before tbe Hon. James E. Dowdell. Tbis was an action by tbe appellee, Josbua Ballard, against tbe appellant, Allen Hester, to recover damages for tbe alleged breach of a bond given upon tbe replevy of five thousand pounds of seed cotton, which bad been levied on under a writ of attachment issued in a suit by tbe plaintiff against, C. S. Veal and T. B. Veal.

Tried before the Hon. John B. Tally. This action was brought by Sam. Henry and James F. Henry, suing as partners comprising the firm of Sam. Henry & Co., against William Powell, to xecoYer one mule, a wagon, several cows, etc., particularly described in the complaint; and was commenced on the 31st January, 1887. The defendant pleaded, (1) the general issue, [2) that he does not owe the debt sued on, (3) payment, and (4) a special plea which is described in the opinion.

<p> Action, to Recover Money Golleeted on Lottery Ticket. </p> <p>1. Lotteries; action to recover money collected on lottery ticket. — Where the plaintiff and the defendant were joint owners of a lottery ticket, an I the defendant collected the amount of a prize drawn by the ticket, the claim of the plaintiff against the defendant for his share of the amount thus paid did not accrue from a violation of the statutes (Code, §§ 4068, 4069) against setting up or carrying on lotteries, or selling lottery tickets, or gift-enterprise tickets, &c.; and the plaintiff may recover his share of the amount so paid to the defendant in an action of assumpsit.</p>

Heard before the Hon. Thomas Cobbs. The bill in this case was filed December 17, 1891, by the appellants, James Owen and William Owen, against Frank J. Kilpatrick, The First National Bank of South Pittsburg, a corporation, and Bichard L. Watkins; and sought to redeem a house and lot in the town of Bridgeport, Alabama.

<p>Appeal from tbe City Court of Decatur.</p> <p>Heard before tbe Hon. William: H. Simpson.</p>

Heard before tlie Hon. W. W. Wilkekson. The nature of the bill in this case, which was filed by the Pioneer Savings and Loan Company, a Minnesota corporation, against Artie H. Lomb, and G. W. C. Lomb,. is sufficiently stated in the opinion. The defendants demurred to the bill; assigning, among others, the grounds of demurrer which are considered in the opinion. Prom a decree overruling the demurrer, the defendants appeal. (No brief on file.)

Tried before the Hon, ’Wi. H. SimpsoN, This was an action brought by the appellee, Joseph Barker, against the appellant, the Louisville and Nashville Railroad Company, a corporation, on June 16, 1890, before a justice of the peace, the plaintiff claiming of defendant “$87.00 due by account for the killing of 25 sheep by said railroad company, made by defendant on the 6th day of June, 1890, and due and payable on the — day of June,Í890; and plaintiff avers that this account…

<p>Appeal from tbe City Court of Birmingham, in equity.Heard before tbe Hon. W. W. Wilkebson.</p> <p>A corporation when insolvent can not prefer a creditor. — Rouse v. Merchants National Bank, 46 Ohio St. 493; 5 L. ft. An. 370; Huse v. Ames, 104 Mo. 91; Hutchinson v. Green, 91 Mo. 367; Corbett v. IFoodioard, 5 Sawy. 103; 403; Hayioood v. Lincoln Lumber Go. 64 Wis. 639; Beach v. Miller, 17 Am. St. Rep. 291; Bicharás v. Insurance Go-43 N. H. 263; Sweeny v. Grape Sugar Go. 8 Am. St. Rep-88; Lamb v. Laughlin, 25 W. Ya. 300. Even Avhere tlie doctrine prevails that an insolvent corporation may prefer one creditor by an absolute sale of all its property in payment of a debt, such preference is not allowed, where the directors are personally liable on the debt. — Lippeaicoil v. Shaw, 25 Eed. Rep. 586.</p> <p>An insolvent corporation can, as a natural person may, prefer a creditor by a transfer of property in payment of a debt. — 4 Amer. & Eng. Encyc. of Law, 2^0; 2 Morawetz on Corp., § 802; Cook on Stock and Stockholders, 691; Borgen v. Porpoise Go., 42 N. J. Eq. 397; Wilkinson v. Beale, 41 N. J. Eq. 635; 0’Conor Mining & M. Go. v. Goosa Furnace. Go., 10 So. Rep.; Thacher v. Globe Iron B. d: G. Go., 87 Ala. 458; Beach v. Miller, 17 Am. St. Rep. 91.1 It is held in many states that directors may prefer themselves. — 17 Amer. & Eng. Ency. of Law, 122,123; Smith v. Skeary, 47 Conn. 47; Sargent v. Webster, IS Mete. (Mass.) 297; Buell v. Buckingham, 16 Iowa, 284; Bollins v. Sha,ver Wagon, &c. Co., 20 Am. St. Rep. 427. The payment is not fraudulent because a director is surety for the debt paid. The debt is not his debt. — County Court v. Baltimore, etc. B. G-, 35 Eed. Rep. 161. The managing agents of a corporation are not trustees, strictly speaking. Their relations to the corporation and its stockholders are of a fiduciary character. The “trust fund” doctrine only means that the property of the corporation must be first appropriated to the payment of its debts before any portion of it can be distributed to stobkholders. It does not invalidate preferences in the payment of debts. — Fogg v. Blair, 133 IT. S. 534; IIos-pes v. Northwestern M. &c. Go., 50 N. W. Rep. 1117; Beach v. Miller, 17 Am. St. Rep., Note, p. 298; Memphis & Charleston Badlroad Go. v. Woods, 89 Ala. 630.</p>

Tried before the Hon. J. M. CaRmichael. This actiou was brought by C. C. Lee, against the appellant corporation, tbe Central Railroad and Banking Company of Georgia, to recover damages for a cow wbicb was killed by one of the defendant’s trains. The bill of exceptions purports to set out all the evidence.

Tried before the Hou. J. M. Caemichael. This action was brought by Ransom Godwin, as the administrator of the estate of Columbus Spurlock, deceased, against the Central Baiiroad & Banking Company of Georgia, to recover damages for personal injuries which caused tbe death of the intestate. The defendant pleaded not guilty, and contributory negligence.

Heard before tbe. Hon. W. H. Simpson. The bill iu this case was filed by the Memphis & Charleston Railroad Company, against J. T. Crass, the Bethlehem Iron Company, and the Decatur & Nashville Improvement Company. The defendant Crass demurred to the bill, assigning seventeen grounds of demurrer, which may be summarized as follows: 1.

Tried before the Hon. JOHN B. Tally. This action was brought by the appellee, A. G. Henry, against the appellant, George L. Maness; and was founded on the defendant’s promissory note for $225, dated January 27, 1886, and payable to plaintiff one day after date. The defendant pleaded the general issue, and also several special pleas.

Tried before the Hon. H. C. Speake. 1. There is nothing in the re cord to show that the Memphis & Charleston Itailroad Company was ever served with notice of the suit before the justice of the peace, or that Morrow was its agent.

Heard before the Hon, John, A, Fosteb. The former report of these two cases sufficiently shows the nature of the original bills. — 85 Ala. 546.

Heard before the Hon. T. M. AeeiNGTON. This was a bill in equity filed by Goetter, Weil & Co., and J. Loeb & Bro., suing as creditors without a lien of Norman Bros.,- a partnership composed of William Norman and George Norman, and its object was to have subjected to the payment of the debts due to the complainants certain property which, the bill alleged, said Norman Bros, had fraudulently transferred or conveyed.

<p>Appeal from tlie Chancery Court of Lauderdale.</p> <p>Heard before the Hon. Thojias Cobbs.</p>

<p>Appeal from tbe Chancery Court of DeKalb.</p> <p>Heard before tbe Hon. S. K. McSpaddeN.</p> <p>cited Ashnrst v. Lehman, 86 Ala. 370; Satterfield v. John, 53 Ala. 127; Briurfield Iron Go. v. Foster, 54 Ala. 622; Durr v. Jackson, 59 Ala. 203; Glover v. Hembree, 82 Ala. 327; Chamberlain v. Parker, 69 Ala. 40; High on Receivers, §§ 3, 7-10, 18, 19, 88, 89; Gluck & B. on Receivers, §§ 27, 115; Bigelow on Fraud, 114; Beacli on Receivers, 151.</p> <p>cited Miller v. Lehman, 87 Ala. 517; McCullough v. Jones, 91 Ala. 186; Bollimj v. Vandiver, 91 Ala. 375; Savage v. Memphis d- Little Rock Railroad Go., 125 U. S. 361; Shmnons Hardware Go. v. Waibel, 11 L. R. An. 267; Gluck A Becker on Receivers, §§ 33, 114, 196, 44; 5 Wait’s .Actions & Def. 371; 2 Story’s Eq. Jur. 35.</p>

<p>Appeal from tbe Chancery Court of Mobile.</p> <p>Heard before the Hon. ¥m. H. Tayloe.</p>

Tried before the Hon. ¥i. E. Clamos. On. tire trial of this case, as sliown by tlie bill of exceptions, Ira IV. Pringle was introduced as a witness for tbe plaintiff, and testified tliat lie was a justice of tlie peace for Mobile county, and tliat lie tried tlie case of Tlie State v. Richardson, which is referred to in the opinion.

Tried before tlie Hon. Wm. E. Olabke. The appellants, J. P. Pollock & Co., brought suit by attachment on March 20, 1890, against Clarance Grove, to recover the sum of 81,643.55-100, claimed to be due from him on account. The writ of attachment was executed by summoning Winston Jones & Co., and Augustus J. Grove as garnishees. The two garnishees were joined in one summons. They filed separate answers. The other facts are sufficiently stated in the opinion.

Heard before the Hon. Wk. H. Tayloe. Mrs. McGill admits in her answer that she did not pay the purchase money.

<p> Statutory Action in nature of Ejectment. </p> <p>1, When defendant may not set up paramount title in third person In ejectment, or in the statutory action in the nature thereof, where plaintiff and defendant claim title from a common source, the defendant is precluded from setting up a paramount title in a third person.</p> <p>2 Presumption in favor of rulings of primary court. — On appeal, the rulings of the primary court must be presumed to be free from error, unless the contrary is affirmatively shown.</p> <p>3. Ejectment by purchaser at mortgage foreclosure; right of defendant to have amount of mortgage debt ascertained — A. statutory action in the nature of ejectment by the purchaser at a mortgage foreclosure is not an action by a “mortgagee or his assignee,” within the meaning of the statute (Code, § 2707), which provides that, in such action against the mortgagor, or any one holding under him, the defendant may have the jury ascertain the amount due on the mortgage debt, and on payment thereof, with interest and the costs, a writ of possession shall not issue. The defendant in an action by the purchaser at a foreclosure sale is not entitled to the benefit of said statute.</p> <p>4. General charge on evidence —When any material fact lies in inference from other facts in proof, or if different tendencies of the proof are developed, from which different conclusions mightbe drawn by the jury, the general charge in favor of either party should not be given.</p>

<p> Statutory Detinue for Machinery. </p> <p>1. Statutory detinue; what is not available as defense. — In a statutory action in the nature of detinue for the recovery of certain machinery soldby the plaintiff to the defendant, under a contract provide ing that the title should remain in the plaintiff until payment in full of the .purchase-money, and giving the right to the plaintiff to take possession of the property on default in payment at maturity of either of the purchase-money notes, where such notes had not been paid in full before the suit was brought, and the defendant was still in possession of the property, special pleas alleging fraud and misrepresentation in the sale, want- of consideration, failure of consideration, breach of warranty, and set-off or recoupment on account of damages sustained by the delay in delivering the property, are no answer to the complaint; such matters not being available as defenses under the statute (Code, § 2720) authorizing a defendant in a suit by a mortgagee to recover possession of personal property, upon sug-festion, to require the jury to ascertain the amount of the mortgage .ebt.</p> <p>2. Testimony offered for special purpose; when Us exclusion is not error. In detinue, or the corresponding statutory action, by the seller of personal propertyjto recover possession thereof, the contract of sale providing that the title should remain in the plaintiff until payment in full of the purchase-money, it is not error to refuse to permit the defendant to introduce evidence showing a partial payment of the price of the property, where such evidence is offered, not for the purpose of reducing the debt on an ascertainment of the amount thereof by the jury, but for the purpose alone of showing that the defendant had paid a sum greater than the agreed price of the portion of the property delivered; the evidence being incompetent for the purpose for which it was offered; and testimony which, when offered generally, would be legal and competent, being_ inadmissible when the offer is limited to a special purpose, which is improper, or illegal, or unauthorized by any of the issues in the case.</p>

Tried before tbe Hon. James B. Head. These two cases are alike in the pleadings, the evidence, and the rulings of the court. They were tried together, and the exceptions reserved apply to the two cases equally. There were separate verdicts and judgments, in each case for the plaintiff. The facts are sufficiently stated in the opinion.

<p> Action on Stated Account. </p> <p>1. Appeal; what errors may be considered. — Where, in an action on a stated account, the plaintiff recovered judgment by nil dieit against the defendant, and this was the only judgment appealed from, assignments of error going to the correctness of judgments rendered in garnishment proceedings instituted by the plaintiff in aid of the original suit can not be considered on such appeal, the judgments in garnishment not being presented for review by the appeal from the judgment in the original suit.</p>

Tried before the Hon. James B. Dowdell. This was an action for money had and received, and was brought by the appellant, Frank Nelson, Jr., against the appellee, The Shelby Manufacturing and Improvement Company, a domestic corporation. The complaint contained fourteen counts. Each of the first thirteen counts was for separate sums of money, and the fourteenth count was for all of these sums of money in the aggregate. The defendant pleaded non assumpsit.

Heard before the Hon. Wi, H. Tayloe. The bill in this case was filed on August 1, 1889, by the appellee, Mollie Bell, against the appellant, Thomas J. Price, and sought to have vested in the complainant the legal title to a small parcel of land, containing one acre, which complainant alleged she had bought from Alex.

Aureal from the Circuit Court of Conecuh. Tried before the Hon. JOHN P. HubbaRD. This action was brought by Witherington & Co. against Jolm A. Wiggins, to recover several oxen, a horse, and other personal property described in the complaint. By order of the trial judge, the original of the the verdict of the jury was attached to the transcript on the appeal to this court.

Tried before tbe Hon. John P. HubbaRD. J. M. Watson, as tbe administrator of tbe estate of C. E. Childers, deceased, brought this action against M. W. Wright, to recover three hundred dollars for tbe alleged conversion of four bales of cotton, tlie property of tbe plaintff’s intestate. Tlie defendant pleaded tbe general issue. Judgment was entered upon a verdict for the plaintiff, and tbe defendant appeals.

Tried before tbe Hon. John B. Tally. On January 1, 1890, tbe appellant, A. E. Fields, brought tbis action before a justice of tbe peace, against tlie appel-lee, D. H. Sims, to recover tbe amount due on a certain judgment wbicb was rendered in favor of tbe plaintiff against the defendant by a justice of tbe peace on February 4,1882. Tbe justice of tbe peace rendered judgment in tbis case in favor of tbe plaintiff, and tbe defendant appealed to tbe Circuit Court.

Appeal, from tbe Probate Court of Pike. Heard before tbe Hon. W. J. Hilliard. On November 14, 1891, W. H. Holloway and others, as heirs at law of George E. Holloway, deceased, filed their petition in the Probate Court of Pike county, to vacate and set aside the decree of that court rendered on the 14th day of July, 1884, for the sale of certain real estate belonging to the estate of said decedent.

Tried before the Hon. J. M. CaRmichael. This was an action by J. Pollock & Co., a partnership composed of Jacob Pollock and Leopold Lowenstein, against W. H. Gainer & Bro., a partnership composed of W. H. Gainer and James Gainer. The complaint contained only the common counts, on an account, on an account stated, and for goods, wares and merchandise sold by the plaintiffs to the defendants at their request.

Tried before tbe Hon. J. M. Cabmichael. Tbis was an action for forcible entry and detainer, brought by M. D. Ogletree against Jobn W. Knowles. There was judgment for tbe plaintiff, and tbe defendant appeals. The evidence on tbe trial, as disclosed by tbe bill of exceptions, showed that tbe plaintiff and tbe defendant, and those under whom they respectively claimed, were for many years in possession of adjoining lots of land.

Tried before the Hon. J. M. Carmiohael. The appellees, John R. Kelly, M. W. Kelly and B. G-. Farmer, suing as partners composing the firm of Kelly & Co., commenced this action by attachment, on an account verified by affidavit, for $651.08, against the appellant, J. W. Herring.

Ai'PKUi from the Circuit Court of Randolph. Tried before the Hen. James It. Dowdell. This was an action by Zacliariali T. Phillips against Wilson L. Heiii.ii and others on a note under seal executed by the defendants on January 27, 1888, and payable to the plaintiff on January 21, 1889. The opinion describes the pleas.

<p>Appeal from tlie City Court of Birmingham.</p> <p>Tried before the Hon. H. A. ShaRPe.</p>

Tried before the Sou. J. M. CaRMiohael. The defendant filed several pleas, among them special pleas setting up the conditions in the policy sued on which are stated in the opinion, and also the giving of the premium note by John D. Glass, and the non-payment thereof, as also stated in the opinion.

Tried before the Hon. H. C. Speake. The appellee, the Birmingham, Sheffield & Tennessee River Railway Company, a domestic corporation, on the 5th day of May, 1890, filed an application or petition, to the Hon. John A. Steele, judge of the Probate Court of Colbert county, under section 1582 of the Code, for the appointment of three arbitrators by the probate judge to determine the terms and conditions upon which the petitioner should be allowed to cross, or intersect the…

Tried before the Hon. LeRoy F. Box. On July 1, 1891, tbe appellant, W. F. McCulley, filed with tbe probate judge of (,’alboun county bis petition for authority to erect a dam across Ohoccolocco creek in said county, “for tbe purpose of building and operating a grist-mill and other machinery on tbe north bank of said creek.” Tbe petition alleged tbat tbe appellees, G. L. Cunningham and E. J. Lee, owned about one acre of land “spanning said creek about 250 yards above where…

Heard before the Hon. S. K. MoSpaddeN. The original bill, in this case was filed November 30th, 1891, by C. H. Rogers, suing as the receiver, appointed on the 12th day of October, 1891, by a court of the State of Tennessee, of the property and assets of the New South National Building and Loan Association, a Tennessee corporation, against W. S. Haines, H. L. Johnson, and several others, residents of this State; and sought to enjoin the collection, by executions or otherwise,…

<p> Action on Statutory Detinue. Bond. </p> <p>1. Service of process; waiver. — Where the record fails to show service of the summons and complaint on one whose name is mentioned in the body of the summons as one of the defendants sued, and also in the caption to the complaint, but no order of discontinuance is taken as to such defendant, and in each of the pleas filed his name is mentioned in the caption, and the introductory part of each plea is, “Come the defendants,” &c., and the appeal bond is signed by him and the other defendants, and recites that the appeal is taken by all the defendants, including him by name, and the clerk’s certificate is to the same effect, Held, that he appeared as a party defendant, and such appearance was a waiver of the want of service.</p> <p>2. Joint plea by several, of defense, good, as to one, only. — Where three defendants join in a plea, and the defense therein set up, if good at all, is only so as a personal defense, to one of them alone, the plea is bad as to all.</p> <p>S. Res adjudica! a ¡.judgment againstprincipal on detinue bond no defense to sureties, in suit on the bond. — In an action on a detinue bond against the principal and sureties, the damages claimed being the costs and counsel-fees incurred in the detinue suit, the fact that a judgment, which has not been paid, was rendered in that suit against the principal, J'or such costs and counsel fees, is no defense to the sureties.</p> <p>4. Set-off by. surely of demand in favor of principal. — In an action against tfie principal and sureties on a detinue bond, the sureties are not entitled to set-off against the plaintiff’s claim, a demand of the principal against the plaintiff, for the purchase price of the property for which the principal on the bond brought the detinue suit; the case not coming within the terms of the statute (Code, § 2681) providing that “a co-maker or surety sued alone may, with the consent of his comaker or principal, avail himself, by way of set-off, of a debt or liquidated demand due from the plaintiff at the commencement of the suit to such co-maker or principal.”</p> <p>5. Statute of limitations, when the defense of, is not available by demurrer —A defense that a claim pleaded in set-off is barred by the statute of limitations can not be taken by demurrer, when the plea does not show when the cause of action on the demand sought to be set off arose; but such defense should be taken advantage of by special replication to the plea of set-off.</p> <p>6. Rulings on demurrer; error without injury. — When several separate causes of demurrer are assigned to a plea, and the demurrer is sustained generally, if the defendant declines to amend or to plead further, the judgment will be affirmed on appeal, if any ground of demurrer was well assigned.</p>

Tried before the Hon. F. C. Randolph. On the trial of this case, as shown by the bill of exceptions, the proponent, Willis L. Chandler, testified that he and the ’deceased had been very friendly for a number of years, and that he, as a member of the firm of Chandler Brothers, advanced to the deceased certain sums of money ; that, to secure one of these loans, the deceased, Fred.

Tried before the Hon. James B. Head. This was an action brought by the appellant, Charles M. Boulden, against the appellee, the Phoenix Insurance Company, upon a fire insurance policy, seeking to recoyer for the destruction by fire of a building covered by said policy.

<p>Appeal from Chambers Circuit Court.</p> <p>Tried before Hon. J. B. Duke, Special Judge.</p>

Tried before Hon. John H. Disque. This action was brought by the First National Bank of Gadsden against the Gadsden Land & Improvement Company, and the complaint originally contained only one count in the ordinary form of complaint on a promissory note; the defendant plead the general issue and non est factum.

Tried before Hon. John P. Hubbard. Action by S. H. Logan against the Troy Fertilizer Company to recover for work and labor performed. This is the second appeal in this case. See 90 Ala. 325. cited Griffin v. State, 76 Ala. 29; MoGoy v. Watson, 51 Ala. 466; Gallen v. McDaniel, 72 Ala. 96; lb. 74 Ala. 206; Dicicerson v. Frisbee., 52 Ala. 165.

Tried before Hon. B. A. Walked. Proceeding by Marietta E. S. Osborn as administratrix of tlie estate of D. L. Osborn, deceased, for the settlement of her administration. One J. H. Naftel contested the claims of credit made by the administratrix. The facts sufficiently appear in the opinion. cited Byrd, et dl. v. Jones, Admr. 84 Ala. 336; Shelton v. Carpenter, 60 Ala. 201; Bates v. Vary, 40 Ala. 421; Kimball v. Moody, 27 Ala. 130; Smith v. Bryant, 60 Ala. 235.

Upon tbe introduction of all tbe evidence, tbe court, at tbe request of tbe plaintiff, gave tbe following written charge: “ Tbe court charges tbe jury that it is for tbe jury to determine from all tbe evidence whether the defendant was negligent, and whether tbe injury to tbe plaintiff resulted from such negligence.” Tbe defendant excepted to tbe giving of this charge, and also excepted to tbe court’s refusal to give tbe following written charge requested by it: “If tbe jury…