Volume 97 — Alabama Reports

Tried before Hon. John H. Disque. This is the second appeal in this case. The objections to the evidence are sufficiently set forth in the opinion. On the trial, the State introduced evidence of alleged voluntary confessions by the defendant that he billed the deceased.

Tried before Hon. J. M. Carmichael. Tbe defendant filed demurrers to tbe indictment as follows: 1. The said indictment does not allege that the building broken into and entered was a dwelling house or a building within the curtilage of a dwelling house. 2. That said indictment fails to allege that the building alleged to have been broken into and entered was a building in which goods, merchandise, or valuable things were kept for use, sale or deposit.

Tried before Hon. John B. Tally. Sherman Arp was jointly indicted with Alex. Burkalter and Green Leath for the murder of George Pogue. There being a severance, Sherman Arp was tried alone and convictecl and sentenced to be hanged. He requested two charges to the jury, which were refused.

Tried before Hon. John B. Tally. The defendant was convicted of tbe murder of Henry Tracy, and tlie testimony for the State showed that tbe defendant went to tbe gate near Tracy’s bouse aud after calling for tbe deceased to come out to see him, got into a quarrel about some reports wbicb be charged deceased with circulating about Mm, and iu tbe difficulty, shot deceased in tbe back.

Tried before Hon. Leroy E. Box. Henry Q-arrett was indicted for the murder of Montgomery Sims, convicted of manslaughter in the first degree and sentenced to five years imprisonment in the penitentiary.

Tried before Hon W. H. Parks. On the trial the State, introduced Alex Johnson as a witness, who testified that he hired the defendant in December, 1886, from the officers of Pike county, and carried him to his farm in said county, that two or three days afterwards he gave defendant the use of a team to go about twenty miles after defendant’s family, and defendant went and moved his family to witness’ plantation, after which the defendant was never confined or in the custody…

Tried before Hon. John P. Hubbard. The indictment under -which the conviction was had is as follows: “The grand jury of said county charge that, before the finding of this indictment, Alex.

Tried before Hon. J. J. Banks. Tbe evidence for tbe State tended to show tbat immediately preceding the difficulty wbicb terminated in tbe killing, defendant went into tbe bouse occupied by William Henry Johnson, tbe deceased, and on being asked by deceased, “if be wanted to make a pathway out of bis bouse?” replied tbat be “would make a pathway out of him,” and defendant passing through tbe bouse was followed by deceased a short distance, and on bis approach they jumped…

Tried before Hon. Samuel E. Greene. Appellant was tried and convicted under an indictment charging him with the murder of A. W. Busby by shooting him with a gun or pistol. The evidence on the part of the State was entirely circumstantial, showing that Busby was found dead in his house, shot through the back of the head and neck. His house was about one mile from College Station, which is on the East Lake dummy line about six miles from Birmingham.

Tried before Hou. John P. Hubbard. Tbe evidence tending to prove tbe guilt of tbe defendant was entirely circumstantial, and is sufficiently set forth in the opinion of the court. The only charge ashed by the defendant and refused by the court was: 2. The court further charges the jury that a reasonable doubt is defined to be be a doubt for which a reason can be given. insisted that the testimony of the witness as to foot-prints were mere opinions, citing 3 Brick.

Tried before Hon. Thomas M. Arrington. Tbe appellant was indicted, tried, and convicted, for embezzlement and sentenced to tbe penitentiary for two years.

Tried before Hon. William: E. Clark. insisted that the charge of the court was abstract, citing Lehman v. Warren, 53 Ala. 538 ; Henderson v. State, 49 Ala. 20. That there was a variance, Johnson v. State, 35 Ala. 363 ; Walker v. State, 73 Ala. 17; That one may reclaim his goods, Com. v. McCue, 16 Gray, 226 ; State v. Elliott, 11 N. H. 540; Overdeer v. Leivis, 1 Watts & S. 90.

Tried before Hon. E. J. Borland. The points presented for decision on appeal in these two cases, which were submitted together, are precisely the same. The defendant moved to quash the venire of jurors summoned to attend court on the grounds: 1. That they were not drawn on the first Monday in January. 2. That they were not selected from the list as required'by law. 3.

Tried before the Hon. John B. Tally. The appellants, Dick Bioden and Pick Boden, were convicted of assault with intent to murder. The State introduced only one witness, whose testimony tended to show, that he saw one Hunt come up to where Bill Lewis and Pick Boden were talking, and whilst they were talking Dick Boden shot first, and after that the other defendant shot a pistol two or three times while Hunt and Dick were in a general fight.

Tried before Hon. John B. Tally. Tbe defendant below was jointly indicted witb one Jobn Tolbert for tbe murder of Sidney Brown and convicted of manslaughter in tbe first degree. Jobn Tolbert was not arrested and there was a severance, tbe defendant alone being tried.

Tried before Hon. Samuel H. Sprott. Steptoe Green was convicted of murder in the first degree, and the evidence is substantially the same as is shown by the report of the case when before this court on a former appeal. 96 Ala. 29. The charge given at the instance of the State is set forth in the opinion.

<p>Appeal from Bullock Circuit Court.</p> <p>Tried before Hon. J. M. Carmichael.</p>

<p> Indictment for Obtaining Money by False Pretense. </p> <p>1. Delivery of property does not imply ownership. — An indictment reciting that the defendant falsely pretended that there was no incumbrance on property then delivered to the person defrauded, and which fails to aver that defendant owned or claimed some right to dispose ofthe property, is insufficient, since the word “delivered” is not the equivalent of a claim of ownership.</p> <p>2. Record of ineumbran.ee is not notice that pretense is false. — When money is obtained on the false pretense that there was no incumbrance on the property delivered as a pledge for its repayment, the fact that there was a mortgage on the property recorded in a different county unknown to the defrauded person, cannot avail as a defense.</p>

Appear from Pike Criminal Court. Tried before Hon. W. H. Parks. The defendant demurred to the affidavit, the foundation of the prosecution, and objected to the. introduction of the contract in evidence on these grounds:. 1. That it is insufficient as a contract to bind the defendant. 2. That it is conditional and does not bind the defendant for any. specified time. 3. That it stipulates no price per diem or per month as a payment to defendant.

Appeals from Montgomery City Court. Tried before Hon. Thos. M. Arrington. The defendant was convicted under. two indictments charging Mm with offer to bribe different parties.

Tried before Hou. James R. Dowdell. The indictment on which the defendant was convicted, omitting formal parts, avers that “Wheeler Watt, then and there having knowledge of the commission of a felony, to-wit: that Milton CoojDer, alias Matt Cooper, was then and there guilty of grand larceny, the same being a felony under the laws of Alabama, did take or receive from the said Milton Cooper, alias Matt Cooper, one cow and yearling, and to-wit, five dollars in money, to…

<p>Appeal from the Criminal Court of Pike County.</p> <p>Tried before Hon. William H. .Parks.</p>

Aureal from Pike Circuit Court. Tried before Hon. John P. Hubbard.

Tried before Hon. W. H. Parks. This prosecution was commenced by an affidavit,-which omitting formal parts charges, “that the offense of practicing medicine or surgery without a license has been committed in said county by Charles Nelson about the-day of June, 1892.” Demurrers were filed as follows: 1. There is no offense set out in the affidavit and complaint. 2. The affidavit fails substantially to follow the words of the statute. 3.

Tried before Hon. John Moore. The evidence in the case showed that one Willis owned a store-house in Wilcox county, where goods were kept for sale, and in January, 1892, the defendant calling for help, was found fastened in the flue of the chimney of the store, just above the fire place, and on being taken out confessed that he entered the chimney for the purpose of stealing goods from the store.

<p> Indictment for Robbery. </p> <p>1. Conviction for larceny on charge of robbery. — Under an indictment for robbery, there can be a conviction for larceny, since under section 4482 of the Code, there can be a conviction for any offense included in that charged in the indictment.</p> <p>2. Description of property must be proven as charged. — Where an indictment describes the stolen property with unnecessary particularity, and the proof fails to identify the property stolen with that described in the indictment, a conviction cannot properly be had.</p>

<p>Appeal from Lauderdale District Court.</p> <p>Tried before Horn W. P. Chitwood.</p>

Tried before Hon. John B. Tally. The defendant demurred to the indictment because two different offenses were joined in one count. Defendant objected to one Abe Muller being allowed to testify because he was a non compos mentis. In support of his objection, a physician testified that Muller had worked for him and he had known him for eighteen months, and in his opinion, said Muller was demented and had not sufficient mental capacity to testify as a witness.

From the Mobile City Court. Tried before the Hon. O. J. Semmes. The defendant requested the following charge in writing and duly excepted to its refusal: (1) “While the law of the State seeks to punish the guilty and to check crime, it never attempts to check crime by punishing the innocent or reasonably doubtfully innocent.” Defendant was convicted and appeals. cited Ward v. State, 78 Ala. Ml.

Tried before Hon. J. E. Dowdell. Petition for mandamus by J. E. Simmons against W. H. Eoney, clerk of the Circuit Court of Macon county, praying that he be required to file interrogatories to certain witnesses and issue a commission to a person therein named to take the deposition of the witnesses named in the interrogatories, who were alleged to be witnesses for petitioner in a contest of election instituted by him against one Holt for a seat in the General Assembly from…

Tried before Hon. John P. Hubbard. Two petitions, — one by Charles T. Taliaferro, by writ of certiorari, to review proceedings between Taliaferro and Bobert A. Lee, bad in tbe 1 ircuit Court of Conecuh county, to try title to tbe office of probate judge, to which Taliaferro was declared elected; the other, by W. J. Plilliard, to review proceedings had in another contested election in Pike county, in which T. H. Brown contested his right to the office in. litigation.

Tried before Hon. W. H. Parks. Petition by tbe Commissioners Court of Pike county for a writ of mandamus to compel the Mobile & Girard Bailroad Co. to place public roads in good condition where crossed by its track. The petition was granted and the company appealed. contended that there was no service of process on the corporation; citing Winter v. Baldwin, 89 Ala. 486; Ex parte Gowert, 92 Ala. 94; Acts 1890-91, p. 391.

Tried, before Hon. John P. Hubbard. R. L. Harmon addressed Ms petition to the Judge of the Circuit Court alleging that he was voted for, and elected as a member of the General Assembly for Pike county at the August election, 1892, but that the board of supervisors of the county certified the election of a different person to the office, which result was reached by counting the returns in three boxes which were not secured and sealed as the law directs, and that if said…

■ Appeal'from Jefferson Circuit Court. Tried before Hon. James B. Head. Tbis was an information filed by tbe State on tbe relation of Hercules Sancbe against A. N. Webb and others to restrain tbem from acting as a' corporation.

<p>Appeal from Anniston City Court.</p> <p>Tried before Hon. B. F. Cassady.</p> <p>No brief came to hands of reporter.</p> <p>as to negligence of the engineer, cited L. (& N. R. R. v. Watson, 90 Ala. 68; Mo. Pac. Rwy. v. CaUbrcath, So. West Rep. 662; Ga. Pac. Rwy. v. Probst, 90 Ala. 1; L. & N. R. R. v. Perry, 78 Ala. 792; as to charge No. 1, Glass v. M. & O. R. R. 94 Ala. 581, and other authorities.</p>

Tried before Hon. H. A. Sharpe. That the action is not for breach of contract, nor for breach of duty growing out of contract. — R. R. Go. v. Doyle, 60 Miss. 977; A. T. & R. R. v. Moore, 11 Am. & Eng. R. R. cases 243 ; LeForest v. Tolman, 19 Am. Rep. 400; McMaster v. R. It.

Tried before Hon. W. W. Wilkerson. The complaint in this case contained but a single count and charged negligence in the defendant in permitting its engines to pass over a certain trestle — negligence in permitting such engines to be out of repair in not having proper appliances to stop them, and also in permitting its track on said trestle to be out of repair.

Tried before Hon. John P. Hubbard. This action was brought by T. J. Campbell, to recover damages for personal injuries alleged to have been sustained on account of a defective brake-rod and resulted in a judgment for plaintiff.

Tried before Hon. H. A. Sharpe. This was an action by Eddie Eogers, by his next friend, against the DeBardeleben Coal & Iron Company to recover damages for personal injuries, sustained by him while in tbe service of the defendant. Among other defenses, the defendant plead that after the plaintiff became twenty-one years of age, be received from the defendant, two hundred dollars in full satisfaction of the injuries set forth in the complaint.

Tried before Hon. James B. Head. This was an action by Powhatan E. Webb against the Kansas City, Memphis & Birmingham Bailroad Company for damages inflicted by the derailment of an engine in charge of plaintiff, alleged to have been caused by defects in a switch and by a defect in the construction of the track on a curve.

Tried before Hon. James B. Head. Action by Albert E. Wilmer against tbe Birmingham Mineral Railroad Company for personal injuries. Tbe facts of tbis case and rulings of tbe court upon tbe evidence are sufficiently- shown in tbe opinion.

Tried before Hon. James B. Head. - The complaint in this case contained two counts and omitting other parts, the allegations of negligence are as follows: Eirst, Plaintiff avers that his said injuries and damages were caused by reason of defects in the condition of the ways, works, machinery or plant used in, or connected with the said business of defendant, viz: The said engine was defective, the means and appliances for stopping said engine were defective, the said switch…

Tried before Hon. W. W. Wilkerson. Action by Sarah Harris against McNamara Brothers to recover damages for the alleged wrongful killing of her son who was a miuor. The opinion states the facts. cited 14 Am. & Eng. Ency. of Law, page 757; lb. 829; Speed v. Atlantic B. B. Co. 2 Am. & Eng. R. R. cases, 77; Southern Ex. Co. v. Brown, 7 So.

Tried before Hon. S. H. Spbott. This action was brought by John S. Hissong, against the Richmond & Danville Railroad Co. to recover damages for personal injuries sustained while in its employment, by which plaintiff lost a leg. There was judgment for $9,314.40 for plaintiff.

Tried before Hon. J. M. Carmichael. This was an action by the administrator of James T. Mutcli, deceased, for damages for negligently killing his intestate. The only negligence shown was that the train at the time of the injury was moving at a rate of speed estimated by some of the witnesses to be from six to eight miles an hour, and an ordinance of the City of Opelika prohibiting trains being-moved at 'a greater rate of speed than four miles an hour.

Tried before Hon. James-B. Head. Tbis action was brought by Elbert Hayes by bis next friend against tbe Tennessee Coal, Iron & Railroad Company for injuries caused by tbe negligence of defendant in permitting a car wbicli bad been started in motion on a down grade to collide witli one on wbicli plaintiff was working, wliereby be was injured.

Tried before Hoñ. W. W. Wilkerson. This action was brought by B. S. Pearson as administrator of Charles Creecy, deceased, against the Louisville & Nashville R. R.'Co. to recover damages for negligently causing the death of a brakeman in the employment of the defendant. There was a verdict for $5,000. for the plaintiff.

Tried before Hon. W. W. Wilrerson. Tlie complaint as originally filed contained six counts. By amendment two counts (7 and 8) were added to tbe complaint. Tbe defendant demurred to these counts on tbe. ground that they were barred by tbe statute of limitations. This demurrer was overruled. Tbe defendant demurred to tbe several counts of tbe complaint. Tbe demurrer to the fifth count was confessed by tbe plaintiff, and said count was stricken from tbe complaint.

Tried before Hon. H. A. Sharpe. Action by Tobe Free against tbe Richmond & Danville Railroad Company, for personal injuries alleged to bave been caused by its negligence. Tbe complaint contained two counts, the first alleging tbat tbe injury was caused by defective draw-beads, in the cars; tbe second on wbicb trial was bad, alleging tbat tbe injury was caused by tbe negligence of tbe engineer in charge of tbe engine of defendant.

Tried before Hon. John H. Disque. Thomas H. Causler brought this action against the Gadsden & Attalla Union Bailway Company to recover damages for personal injuries. The second charge is copied in the opinion.

Tried before Hon. H. A. Sharpe. Action by J. W. Burton, by his next friend, against the Kansas City, Memphis & Birmingham Railroad Company to recover damages for j)ersonal injuries caused by defendant’s negligence. The complaint, as amended, contained eight counts. There were many demurrers interposed to the counts, the grounds of which, and the rulings thereon, are sufficiently stated in the opinion.

Tried before Hon. W. W. Wilkinson. Wade H. Mothershed brought suit against the Louisville & Nashville Railroad Company for injuries received while in its service by reason of the alleged negligence of defendant. The complaint contained three counts to which a fourth was added, as an amendment. The first alleged that the injury was caused by a defect in the machinery and track of defendant.

Tried before Hon. W. W. Wilkinson. Action by D. P. Weems against tbe Richmond & Danville Railroad Co., for injuries caused by defendant’s negligence.

Tried before Hon. W. W. Wilkerson. J ames Burgin brought this action against the Louisville & Nashville Bailroad Co. to recover damages for personal injuries. The court gave the general affirmative charge in favor of the defendant.

Montgomery Circuit Court. Tried before Hon. John P. Hubbard. This action was brought by John R. Helton, against the Alabama Midland Railroad Company, and sought to recover damages for injuries sustained in the State of Georgia, by the alleged negligence of the defendant. The undisputed evidence showed the following facts : That defendant, is an Alabama corporation and owns a railroad extending from Montgomery, ■ Alabama, to Bainbridge, in the State of Georgia.

Tried, before tbe Hon. James B. Head. Tbis action was brought by the appellee, William Freeman, as administrator of the estate of John T. Freeman, deceased, for the wrongful killing of his intestate.

Tried before Hon. H. C. Speake. Action by Mary A. Pannell, as administratrix of tlie estate of James Pannell, deceased, against the Nashville, Florence & Sheffield R. R. Co., for the alleged negligent killing of her intestate. filed a lengthy argument and brief, citing numerous authorities, many of which are cited in the opinion. insisted that the court properly gave the general charge for the defendant, citing 2 Rorer on R. R. 1074; Patterson’s Rwy.

Clair Circuit Court. Tried before Hon. Leroy F. Box. Tlie complaint in tbis case contained five counts setting forth the alleged negligence substantially as follows: “That on about the 5th day of March, 1890, the defendant, while engaged in operating its said railroad, by and through its agents and servants, and while running an engine over its road or track, or switch of its said road, at which time it was being used by defendant in the town or village of Gate City,…

Tried before Hon. J. B. Head. This action was brought by B. T. Webb to recover damages for personal injuries sustained by plaintiff by the alleged negligence of defendant at a street crossing in the city of Birmingham. The former appeal is reported in 90 Ala. 185, where the facts are fully set forth. The court refused to give thirty-six charges requested by the defendant.

Tried, before Hon. John P. Hubbard. Action by Simon Scarboro against James M. Brown dt Company and the Alabama Terminal & Improvement Company to recover damages for injuries alleged to have been received while a passenger on a construction train furnished by tlie latter, but controlled by the former.

Tried before Hon. John P. Hubbard. This was an action by Nancy C. Lee, against tbe Louisville & Nashville Bailroad Company, to recover damages for personal injuries, caused by alleged negligence on the part of the defendant. Among the charges requested by the defendant, was the general affirmative charge in its favor. cited R. R. Co. v. Smith, 92 Ala; 237 ; Am.' & Eng.

Tried before Hon. James B. Head. This action was brought by Albert Vormus against the Tennessee Coal, Iron & Bail Boad Company, for damages caused by alleged negligence of the defendant.

Tried before Hon. Leroy E. Box. Action by Jacob E. Holmes against the E. T., Va. & Ga. Ewy.

<p>Appeal from Montgomery Circuit Court.</p> <p>Tried before Hou. John P. Hubbard.</p> <p>cited, L. <!■ N. It. It. Co., v. Johnson, 79 Ala. 436; 3 Sutherland on Dam. 225; Triga v. St. L. & O. It. It., 74 Mo. 147; Wilkinson v. Searcy, 76 Ala. 181.</p> <p>No brief came to hands of the reporter.</p>

Tried before the Hon. Jesse M. Carmichael. This is the second appeal in this case and the facts are substantially the same as found in the opinion as reported in 91 Ala. 340, and are also stated in the opinion rendered on this appeal, except as to the following clause in the contract of shipment, viz: “And it is further agreed that should damage occur for which the said party of the first part (R. R. Co.) may be liable, the value at the place and date of shipment shall…

Tried before Hon. John Moore. This action was brought by W. L. Hairston, as administrator of the estate of George W. Hairston, deceased, to recover damages for negligently causing the death of plaintiff’s intestate. The defendant requested the court to give the general affirmative charge in its favor.

Tried before Hon. John B. Talley. Action by the Granite Mills against defendants doing business under the name of the Decatur and Chattanooga Packet Company, for failure to deliver eight bales of cotton received by them of Orapon & Co., for which a bill of lading was issued to the latter.

Heard before.Hon. John A. Foster. Bill in equity by Mary E. McGough, against J. Howard Sweetser, to redeem lands sold under decree of foreclosure. The amount due on the mortgage debts at the time of the sale was over Fifty Thousand Hollars, the amount bid for the lands was Eleven Thousand, Four Hundred Hollars.

Aupeal from Montgomery Oban eery Court. Heard before Hon. John A. Foster. Tbe grounds of demurrer noticed in tbe opinion are in substance as follows: 2. Said Dixon H. Lewis took a bond for title in favor of bis wife and not in bis own name. 3. That tbe money was not paid on tbe land at tbe time of tbe purchase. 4. That if any resulting trust ever' existed it attached to a large tract of wbicb tbe tract in controversy constituted only a part. 9.

Heard before Hon. Thomas Cobbs. The former appeal in this case is reported in 84 Ala, p. 343. The facts fully appear in the opinion of the court.

Heard before Hon. H. A. Sharpe. Tliis proceeding was begun by petition by W. T. Underwood and others for a dissolution of the Mary Pratt Furnace Company, a private corporation, and on final hearing the court decreed a dissolution and appointed a receiver of the assets of the corporation. The former appeal in this case is reported in 91 Ala. 523. After the remandment of the cause, the petition was amended so as to conform to the opinion of the Supreme Court.

<p> Bill to Set Aside Fraudulent Conveyance. </p> <p>1. Cross assignments of error only allowed by consent. — Where an appeal is taken by one party only, appellee cannot assign errors on the record unless the opposite party consents in writing, or joins in error. Code, Rule 3, p. 800.</p> <p>2. Burden of proof establishing consideration. — In a controversy between a- creditor assailing a conveyance as fraudulent and the grantee of an insolvent debtor, the burden is on the grantee to establish the justness and amount of the indebtedness alleged to be a consideration of the conveyance.</p> <p>3. When evidence is uncertain the consideration is not established.— If both the debtor and the grantee fail to testify with certainty to a large debt mentioned in the deed, and it app< ars that in their testimony in a former suit, neither testified about the debt, the evidence is insufficient to establish an adequate consideration for the deed.</p> <p>•4. Reservation of benefit to grantor. — If an insolvent debtor convey land to one of his creditors and retains possession of the premises under a special agreement that he should receive the rents for the benefit of his parents, and has received such rents, this unexplained, is the reservation of a benefit to the grantor.</p>

Heard before Hon. W. H. Tayloe. This bill was filed February 15, 1890, by Frank H. Mc-Larney, “executor” of the estate of James McDonnell, deceased, and Kate McDonnell, “executrix” of said estate, against Edward J. Dickson, alias Daws, and the children and heirs of Mrs. Mary Daws, and the object of it is to have a certain deed to real estate, executed by said Edward J. Dickson to Mrs. Mary A. Daws, — who was his mother, — on the 3rd day of May, 1887, declared void as to…

Heard before Hon. 8. K MoSpadden. W. J. Sibert and others filed their petition in a cause pending, praying that certain moneys paid by them as sureties on the appeal bonds in proceedings to condemn a right of way for the Rome & Decatur Railroad Company, be repaid to them out of funds in the hands of the receiver of said road, which petition was granted by the court.

<p>Appeal from tbe City Court of Birmingham.</p> <p>Heard before Hon. H. A. Sharpe.</p> <p>cited Kyle v. Montgomery, 73 Ga. 337; Freeman on Executions, Sec. 209; Morgan v. Neville, 74 Pa. St. 52 ;• Lisenbee v. Hall, 1 Sneed (Tenn.) 50; E. T., Fa. (& Ga. R. R. v. Kennedy, 83 Ala. 462; Boykin v. Edwards, 21 Ala. 261; Newell v. Hayden, 8 Iowa, 140.</p> <p>cited Penn v. Lord Baltimore, 2 W. & T. Eq. cases, 923; Kerr on Inj. 154; Snock v. Snetzer, 56 A. _ Bep. 664; lb. 657, 28 Lb. 448 ; 55 15.545; Zehiicker v. Brigham, 74 Ala. 598.</p>

Heard before Hon. H. A. Sharpe. The bill in this case as originally filed, prayed that the bank be compelled to issue to complainant forty shares of its stock for which he had subscribed. The prayer of the bill was afterwards amended, praying that if the stock could not be issued the complainant might have compensation in lieu thereof.

<p>Appeal from Russell Chancery Court.</p> <p>Tried before tlie Hon. John A. Foster.</p> <p>cited Moritz ds JVeilv. Miller, Schrcnn d: Go., 87 Ala. 331; Blondheim v. Moore, 11 Md. 364; Mortgage Go. v. Turner, 95 Ala. 272.</p> <p>No brief on file.</p>

Heard before Hon. W. H. Tavloe. Suit in Chancery by Barlow & Company against John Dahm and others for partition. Upon the submission of the cause the chancellor decreed that the complainants were not entitled to the relief prayed for, and ordered the bill dismissed.

Tried before Hon. W. W. Wilke&son. Appellee filed a bill to foreclose a mortgage executed by Mattie D. Falls, a married woman, which mortgage was executed to secure a note of which the following is a copy: “$10,000. _ St. Paul, Minn., May 10th, 1890. “For value received, after three years from date, and before nine years from date, we promise to pay to the order of the United States Savings, Loan & Building Company, at the office of its Treasurer, St. Paul, or to its Trustee…

Heard before Hon. Thomas Cobbs. Bill by W. S. Waldrop and others against Friedman & Loveman to redeem certain lands from defendants as mortgagees in possession, and to have a sheriff’s deed to the land cancelled. The court sustained a demurrer to the bill, but the decree was reversed. — 90 Ala. 157. On final hearing on pleadings and proof, a decree was rendered in favor of complainants from which the present appeal is taken.

<p> Bill to Enforce Trust created by General Assignment. </p> <p>1. Exemptions reserved by exception in grant —In an assignment for the benefit of creditors, the grantor may reserve by an exception his right to exemptions. ■</p> <p>'2. Exception in. di ed does not avoid the grant. — Where a general .assignment conveying all the debtor’s property contained a provision reserving to the debtor, all exemptions allowed by law, the assignment is not void for uncertainty, because the exempted property is not specifically described, the exception alone is void.- -Bloch v. Maas, 65 Ala. 211, and Myers v. Conway, 90 Ala. 109, overruled.</p> <p>3. Delivery cares uncertainty of description —Conceding that the description of personal propei'ty in an assignment is indefinite, its delivery by the grantor for the purposes of the trust sufficiently identifies the property and cures the defect.</p> <p>4. Trustee, exercising good faith protected. — Where an assignee replevies the trust property attached by creditors of the assignor and after a defense made in good faith, judgment is rendered against him, such judgment is conclusive on him and the beneficiaries in the trust-deed.</p>

Heard before tbe Hon. W. H. Simpson. Bill by Jobn W. Scott against Mary W. Cotton to foreclose a mortgage. Tbis is tbe second appeal in tbis case, tbe former being reported in 91 Ala. 623.

Heard before Hon. John A. Foster. Bill of review filed by Frederick Smyth and others, against O. P. Fitzsimmons and others to revise and reverse a decree rendered in the Chancery Court of Montgomery, cancelling and annulling as a cloud on the title of Mary B. Fitzsimmons, a mortgage executed by her grantee to said Smyth to secure a loan of $4,000.

<p>Appeal from tbe City Court of Montgomery. '</p> <p>Heard before Hon. T. M. Arrington.</p> <p>Bill in equity by B. B. Snodgrass against Susie P. Bibb to enforce a vendor’s lien on land.</p> <p>cited Keel v. Larkin, 72 Ala. 493; Day v. Thompson, 65 Ala. 269; 37 Am. Dec., 441; 85 IK, 338 ; 75 17;., 756; Whitley v. Dunham ■ Lumber Oo.. 89 Ala. 493; Loiurey v.. Murrell, 2 Port., 280.</p> <p>contended that in tbe absence of an agreement, a check was only a conditional payment, citing 2 Benj., § 1083; I?;, p. 944; 2 Dan. Neg. Inst., § 1063; Me Williav'is v. Phillips, 71 Ala. 82 ; 9 L. B. A. 263 ; 7 77;., 442 ; 3 Am. & Eng. Ency., 213 ; Bank v. Miller, 77 Ala. 168; Bankv. Willard, 10 Wall., 156.</p>

Heard before Hon. W. H. Tayloe. This was a bill in equity by W. B. Pope against B. Moore and his wife to foreclose a mortgage executed to one Buth, afterwards assigned to complainant to secure three notes payable to said Pope as cashier of the Alabama National Bank of Mobile.

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. Thomas Cobbs.</p>

Heard before Hon. John A. Foster. . I. Poliak filed a bill against ~W. F. Yandiver & Co., to enforce contribution.

<p>Appeal from Chancery Court of Montgomery.</p> <p>Heard before Hon. John A. Foster.</p> <p>This is the fourth appeal in this cause. See, 89 Ala. 262 ; 93 Ala. 441; 95 Ala. 467.</p> <p>cited Hemphill v. Moody, 64 Ala. 468 ; Ciarle v. Hart, 57 Ala. 390; Hardigree v. Mitchum, 51 Ala. 151; Turner v. Mason & Kelley, 70 Ala. 85 ; 1 Story’s Equity, §§ 155-7 ; Harrod v. Weaver, 72 Ala. 373; Cuilmartin v. Urquhart, 82 Ala. 570; Loclchart v. Cameron, 29 Ala. 355; Bumbly v. Stainton, 24 Ala. 712; Waring v. Lewis. 53 Ala. 615 ; F/ench v.. Garner, 7 Port. 549 ; Dexter v. Ohlander, 93 Ala. 441; Campbell v. Hatch, 55 Ala. 548.</p> <p>cited Shires v. Hayes, 36 N. J. Eq., page 396; Gillespie, v. Moon, 2 John’s Chan. Bep. 585 ; Eastman v. Provident Mutual Belief Ass., 5 Lawyer’s Beps. Annotated 712, 713; Kennard v. George, 44 N. H. 446;' Pomeroy’s Eq. Jur., Yol. 2, 845; Ljarhins v. Biddle, 21 Ala. 252.</p>

Heard before tbe Hon. John A. Foster. Bill in equity by U. Gr. W. Powell against New England Mortgage Security Company, to cancel a mortgage and enjoin a foreclosure of tbe same.

Heard before Hon. John A Foster. Bill by Sarah Dickerson and others, widow and heirs at law of James Dickerson, deceased, against W. A. Winslow and W. W. Wilkerson, to set aside a sale made under tbe power in certain mortgages and to cancel the mortgages and for account. Tbe averments of ,tbe bill and tbe grounds of demurrer are sufficiently set for.tb in tbe opinion. cited Story Eq.

<p>Appeal from Chancery Court of Jefferson.</p> <p>Heard before Hon. Thomas Cobbs.</p> <p>cited N. & 8. B. R. Go. v. Immigration Association, 68 Ala. 48; A. G. 8. R. R. Go. v. 8. (& N. R. R. Go., 84 Ala. 570; Forney v. Galhotm Gounty, 84 Ala. 215; Bright v. Platt, 82 N. J. Eq. 362; Reed v. Gity of Oambridge, 2 Mass. 427 ; 31N. Y. Eq. 81; The Bank of Auburn v. Roberts, 44 N. Y. 203; Sawyer v. L'andus & Son, 56 Iowa, 422; Baldwin v. Hatchett, 56 Ala. 461; 3rd Pomeroy’s Equity,. 1181-2; Ketchumv. Greagh, 53 Ala. 224; Freeman on Co-tenancy and partition, Sec. 512; 22 Me. 287; Aclay v. Echols, 18 Ala. 353; Oolumbus & Western R. R. Go. v. Witheroiu, 82 Ala. 190; Jacksonville v. Adams, 10 So. B>ep. 465; North Hudson R. R. Go. v. Booraem, 28 N. J. Eq. 450; Datos v. Gorydore, 16 Howard N. Y. Pr. 517; Kennedy v. Milwaukee & St. Paul R. R. Go., 22 Wis. 518.</p> <p>cited 3 Brickell’s Dig., pages 400, 548-49; 15 Amer. & Eng. Encyc. of Law, 818 ; 1 Jones on Mortgages, § 707; Spencer v. Waterman, 36 Conn.</p> <p>except Mrs. H. N. Winn, cited Scott v. Cotton, 91 Ala. 629; Code, 2346; Canty v. Sandeford, 37 Ala. 91; Drake (it Wife v. Glover, 30 Ala. 382.</p>

Heard before Hon. Thomas Co'bbh. insisted that one seeking-equity must do equity, citing- Dawson v. Burrus, 73 Ala. 115; Eslava v. Elmore, 50 Ala. 587; UJtfelder v. Garter, 64 Ala. 527. That the court had jurisdiction to order the sale. — 1 Brick. Dig. p. 639, § 5; lb. p. 331, §§ 10-11; Price v. Gurry, 75 Ala. 546; Ware v. Bussell, 70 Aia. 174; as to the costs, Gray v. Gray, 15 Ala. 779; Randolph v. Rosser, 7 Port. 249; Pdimt v. Le.iuin, 4 Stew & P. 138.

H. A. Sharpe. The defendant appeals from a decree overruling a demurrer to the bill. insisted that the allegations charging fraud were to ogeneraland stated, conclusions instead of facts. in reply, cited Poliak v. Searcey, 84 Ala. 259; Calhoun v. Hannon, 87 Ala. 277; Lehman v. Greenhuf, 88 Ala. 478; Mobile Bank v. McDonald, 89 Ala. 434; JRolñnson v. Moseley, 93 Ala. 70.

Appeal .from Talladgega Circuit Court. . Tried before Hon. L. E. Box. This was a suit in attachment, by the Talladega Mercantile Company, in wbicb McDonald & Campbell were summoned as garnishees.

Tried before Hon. Thomas M. Arrington. This suit was commencrd in the City Court of Montgomery by attachment sued out James McPhillips against Joseph Hubbard, which was levied by summoning the Louisville and Nashville Railroad Company as garnishee. The defendant filed a plea in abatement alleging that at the commencement of the suit he had a permanent residence in Escambia county, Alabama.

Tried before Hon. John P. Hubbard. Action for failure to deliver five bales of cotton received at Evergreen to be shipped to Mobile. Appeal by defendant.

<p> Garnishment on Attachment. </p> <p>1. When judgment entry prevails. — Upon appeal on the record with- • out a bill of exceptions, and there is a conflict between the recitals of the judgment entry of what the answer contains, and the answer found in the transcript, the judgment entry will prevail.</p> <p>2. Defects in notice of conditional judgment cured by voluntary qppearance. — The purpose of the notice of a conditional judgment against the garnishee being to bring him into court, the voluntary appearance of the garnishee cures any defect as to the return term stated in the notice.</p> <p>3. When answer of garnishee, not part of the record. — The answer of the garnishee, though in writing, is not part of the record, unless made so by the bill of exceptions or recitals in the judgment entry.</p>

<p> Attachment against Non-resident. </p> <p>1. Waiver of trial by jury. — Under the act of 1888-89, establishing the City Court of Decatur, a defendant loses his right to have the damages assessed by a jury after he suffers judgment by default, no jury having been demanded by either party, and on appeal he can not complain that the damages were assessed by the court.</p> <p>2. Judgment; when not premature — Under said act, a judgment may be rendered in attachment proceedings thirty days after the defendant has been brought into court by publication ; and, unless the contrary appears, it will be presumed, on appeal, that the City Court of Decatur was continuously in session for the full period of, the time prescribed by law.</p> <p>8. Variance as to amount of debt claimed in affidavit and complaint. After judgment by default in an action commenced by attachment, a variance between the affidavit and the complaint as to the amount of the debt claimed, is not available on error.</p>

Tried before Hon. John P. Hubbard. Malone & Son sued C. E. Boss for the conversion of.a bale of cotton. It was in evidence that a suit in detinue for the same bale of cotton was pending at the time this action was commenced, and that it had resulted in a judgment for Malone & Son, the plaintiffs in both suits, and the judgment in detinue had been satisfied.

Tried before Hon. B. F. Cassaly. Bluthentbal & Bickart commenced suit against David 'Wurtzburger by attachment which was leved oni a stock of goods to wliicli Joe A. Magnus interposed a claim. On the trial it was shown that Wurtzburger was at the time of the levy in possession of the goods, but stated to the sheriff that they belonged to Magnus.

<p>Appeal from Birmingham City Court.</p> <p>Tried before Hon. H. A. Sharpe.</p> <p>cited Cleveland v. State, 34 Ala. 258 ; Tellinghast v. Johnson; 5 Ala. 514; Carey v. Go-egg, 3 Stew. 433 ; Barher v. Ferrill, 57 Ala. 446 ; Brake on Attachment, § 453 ; Endlich on Statutes, §351.</p> <p>No brief on file.</p>

Tried before Hon. Charles Wilkinson, Special Judge. Action by J. C. Kilebrew against E. K. Carlisle to recover , damages for an alleged malicious prosecution.

Tried before Hon. O. J. Semmes. The coiiveyauce or transfer of the accounts forming the subject of contest is as follows: “Know all men by these presents that I, William B. Yail, of said State and county, for the consideration that I am indebted for borrowed money to Louise T. Dawson in the sum of five thousand dollars, besides interest; to Helen O. Austin, Mon Luis Island, thirteen hundred and fifty dollars, and interest, and to M. H. Davis in the sum of twelve hundred…

Tried before Hon. James B. Head. This was a contest of a claim of exemption to goods levied on under an attachment issued at the instance of Adolph Kolsky against David Loveman.

Appeals from Mobile Circuit Court. Tried before Hon. William E. Clark.

. Tried before Hon. Leroy F. Box. Petition by Piedmont Lumber Co. for supersedeas of a.statutory judgment founded on a return by the sheriff of forfeiture of a claim bond.

• Appeal from City Court of Decatur. Tried before W. R. Francis, Esq., Special Judge. Action by W. Y. Echols against the Louisville & Nashville Railroad Co., to recover the value of one bale of cotton alleged to have been received by it for shipment,

Tried before Hon. James B. Head. insisted that the judgments were conclusive evidence of assets in the administrators bands, citing Grimmett v. Henderson, 66 Ala. 521; Kyle v. May, 22 Ala. 692; tbat a conveyance of the homestead was not an abandonment: Plummer v. White, 101 111. 474; Miller v. Finegan, 7 So. Rep. 140. in reply, insisted that the judgments were not conclusive except as between the parties, citing 2 Brick.

Tried before Hon. John P. Hubbard. . Mildred Thompson and others, claiming as heirs at law of John McEown, deceased, brought ejectment against Sandy Boswell, who claimed title to the lands sued for through a sale of said lands made under an order of the probate court.

Tried before Hon. Leroy E. Box. This is the second appeal in tbis case. See 84 Ala. 205. Ejectment by J. M. Knowles, against A. M. Steed, and wife. The husband filed a plea disclaiming ownership but admitting that he and his wife, who was the owner, were in possession. The wife plead the general issue and also plead specially adverse possession with color of title for ten years.

<p>Appeal from Montgomery Circuit Court.</p> <p>Tried before Hon. John P Hubbard.</p> <p>cited Code, §§ 2731, 2733, 2708; Sims v. Thompson, 30 Ala. 158.</p>

ApeeaXi from Randolph. Circuit Court. Tried before Hon. J. R. Dowdell. Milton Webb brought suit in ejectment against Joshua Ballard for lands claimed by both parties through the same sale by an administrator. There was a trial of one of the questions involved in this case, in the Probate Court, and the appeal taken in that case is reported in 90 Ala. 357.

Tried before Hon. W. E. Clarke. This is the second appeal in this case, the former being reported in 92 Ala. 559. Plaintiff testified that he had been in the actual possession of the property since 1862, and had enclosed the same by a fence which was burnt in 1865, and rebuilt four or five years later, that he and his. family lived on the land, exercised acts of ownership over it and cultivated it.

Aureal from Crenshaw Circuit Court. Tried before the Hon. John P. Hubbard. E. G. Tisdale and others brought statutory ejectment against M. A. Wyatt for a tract of land embraced in the sixteenth section (school lands). After the plaintiff introduced a grant from the State made in 1882, and rested, the defendant introduced the deposition of Warner Ellison, who testified that one Tisdale made him a deed to the lands sued for in 1864, and that he paid Tisdale the purchase-money.

Tried before Hon. H. C. Speake. Walter B. Bobinson brought ejectment against Margaret Allison, and others, and on the trial the plaintiff asked the following charges: (1) “If the jury find from the evidence that Martha Allison was the widow of Samuel H. Allison, and occupied the property as such widow, and that she claimed the property, her claim is presumed to be in accordance with her right as such widow; and if her claim was as such widow, there is no question of adverse…

Tried before the Hon. J. M. Carmichael. This was a statutory action of ejectment by L. W. Payne against Mary A. Crawford. There was judgment for plain-tin, and defendant appeals.

<p> Detinue to Reclaim Goods Sold. </p> <p>1 Waiver of right to reclaim goods sold on agreement to pay part cash. Where goods are sold on an agreement to pay two-thirds cash, and three several shipments of the same are made on different dates, the seller having knowledge that the goods are purchased for sale in the regular course of business, and without demanding a return of the goods, the seller waits fifteen days after the last shipment and then agrees to accept the b'uyers notes for the price, he has waived his right to reclaim the goods.</p>

Tried before Hon. John B. Tally. Detinue by Thomas M. White against Jesse W. Collier, to recover a mnle.

<p> Detinue. </p> <p>1. Book entries as evidence. — The main point in controversy in an action of detinue for a mule, being the fact of possession by the defendant at the institution of the suit, the defendant and his son testifying that a mule of the description of that sued for was sold and delivered by one of them, and the money promptly turned over to the defendant’s cashier, who testified that he entered the cash on the books at the time, which was prior to the institution of the suit; such entry in connection with the other testimony is admissible. '</p>

Tried before Hon. John P Hubbard. The facts appear from tbe opinion.

Tried before Hon. Leroy E. Box. This was an action for false imprisonmentinstituted by Morris Leib against the Shelby Iron Company, and L. T. Grant, and the original complaint contained only' one count which was in the form prescribed by the Code No. 19, page 794. An amendment, adding a count for malicious prosecution, after being allowed, was stricken out on motion of the plaintiff.

. Tried before Hon. J. E. Dowdell. ■ • M. A. Oswalt brought an action of trespass against L. D. Smith, for cutting and. carrying away, timber on lands of plaintiff. On the trial, the court gave the general affirmative charge for the defendant. cited Add. on Torts, §§ 97,18, 36, 422; Olay v. Tel. Go., 11 So. Eep. 658; Allison v. Little, 85 Ala. 512; Ullman v. Myrick, 93 Ala. 532.

Tried before Hon. James B. Head. This was an action of trespass by T. E. Thornton against J. C. Cook and others to recover damages for a wrongful taking of goods alleged to be the property of the plaintiff. The plaintiff testified that in January, 1880, one J. H. Pickett owed him six hundred dollars and conveyed to him by mortgage a stock of goods to secure the payment of the debt.

Tried before Hon. ¥i. W. Wilkerson. Action by Patrick G. Dowdall against Peyton G-.

<p>Appeal from Covington Circuit Court.</p> <p>Tried before Hon. John P. Hubbard.</p> <p>cited Swanson v. i!íiss. Boom Go., 7 L. B. A. 673 ; Ala. Nav. Go. v. Ga. Pac. R. R. Go., 87 Ala. 154.</p> <p>cited Railway Go. v. Hale.', 90 Ala. 8; G. Pac. Ry. Go. v. Propst, 90 Ala. 1; Harold v. Jones, 86 Ala. 274.</p>

<p>Appeal from Conecuh Circuit Court.</p> <p>Tried before Hon. John P. Hubbard.</p>

Tried before Hon. S. H. Sprott. The complaint contained the common counts. The contention on the part of the plaintiff was that the defendant had, without authority, appropriated to his own use $1,000, the proceeds of a check drawn payable to plaintiff’s order, and which defendant had deceitfully or fraudulently procured plaintiff to indorse in blank.

Tried before Hon. H. A. Sharpe. Action by the Berney National Bank against S. J. Darby, on a promissory note. Erom a judgment for plaintiff, defendant appeals. The defendant pleaded six pleas.

Tried before Hon. James B. Head. Action by payee of a promissory note payable on 31 day of July, 1890, at a bank against the endorser.

Tried before Hon. Lerox F. Box. The original complaint alleged that the note was the property of the plaintiff while the count added by way of amendment alleged, that the plaintiff sues as the widow of J. W. Edwards, deceased, the payee of the note sued on, who died in May, 1887; and that no administration upon her said husband’s estate has been had, and that no personal property of the estate has been set apart to her or her minor children and that the note sued on was the…

Tried before Hon. B. F. Cassidy. (No brief came to tbe hands of the Reporter.) contended that having averred in the replication that the Decatur Bank had acquired the notes without notice, relieved Johnson of making such proof, citing First National Bank v. Dawson, 78 Ala. 67; L. & N. B. B. Go. v. Johnson, 79 Ala. 436; Highland Avenue & B. B. II. v. Winn, 9 So.

Tried before Hon. J. R. Dowdell. This was an action by James B. Ramage against W. O. Trammell and the sureties on a bond given to obtain the issuance of an attachment on the ground that Ramage was about to fraudulently dispose of his property. There was no dispute about the amount of the claim on which the attachment was based.

<p> Action on Promissory Note. </p> <p>1. Allegations construed adversely to pleader. — A plea to a complaint on a promissory note claiming protest fees, which avers that protest of the note was waived by the only endorser on it on the day of maturity, and before protest, is insufficient, in that it fails to allege that the waiver was made before dishonor.</p> <p>2. Waiver of protest plead specially. — If the waiver of protest and notice before maturity is a defense to such action, the defense must be specially pleaded, and can not be insisted on under the general issue.</p>

Tried before Hon. J. M. Carmichael. Proceedings by the City of Eufaula against O. T. Moore to recover a fine for the violation of one of its ordinances. Demurrers to defendant’s pleas were sustained, and judgment rendered for plaintiff.

<p> Action for Breach of Contract of Sale. </p> <p>1. Authority of agent.—When a commercial agency is created without limitation on the agent's authority, it is presumed that he has authority to act in accordance with the known usages of the business in the place where he is acting for his principal.</p> <p>2. Parol evidence to interpret writing.—Parol evidence of the custom of trade, is admissible for the purpose of interpreting the written authority of a commercial agent.</p> <p>3. Construction of agent’s authority.—Although the general authority of an agent limited his power to sales go be confirmed by his principal, yet, when in reply to a telegram from the agent, the principal merely states the price, such telegram is authority for a completed sale at that price when there is a custom of the trade to that effect.</p> <p>4. Measure of damages.—The measure of damages for breach of a contract to sell goods at a distant point, is the difference in the contract price, transportation added, and the market price at the place to which they were to be shipped, at the time of delivery.</p>

<p>Appeal from the Circuit Court of Henry.</p> <p>Tried before Hon. J. M. Carmichael.</p> <p>This action was brought by Eliza Kellum against three persons as late co-partners to recover money due to her deceased husband. Two of the defendants died during the progress of the cause and the suit was revived against their personal representatives. The evidence showed that after the dissolution of the firm of Z. W. Laney & Co., another firm composed of two of the former partners was formed, and to the evidence that this last firm owed plaintiff’s husband, objection was made on the ground of variance.</p> <p>The court refused to give the following charge requested by defendants: “That the plaintiff can not recover if the proof shows that either of the defendants is not liable.” The admission of the testimony and the refusal to give the charge, are assigned as error.</p> <p>cited Chitty PL, ¡ip. 31, 35; Walker v. Ins. Go., 31 Ala. 529; Jones v. Englehardt, 78 Ala. 505.</p> <p>cited Steed v. Barnhill, 71 Ala. 157; Burns v. Moore, 76 Ala. 339; Neff v. Edwards, 81 Ala. 247.</p>

Tried before Hon. H. C. Speake. Corpening & Company brought suit against the Huntsville Belt Line & Monte Sano Eailway Co., Danfortli & Armstrong and Arthur Owen Wilson & Co., to recover for work and labor done in the construction of a railroad.

<p> Action for Breach of Contract for Erection of House. </p> <p>1. Custom opposed lo reason of no force.— Although reasonable customs not opposed to law or public policy, obtaining with respect to a particular trade in a locality where a contract is to be performed, known to the parties to such contract, may be looked to in the interpretation of the agreement; yet, if the alleged custom is one which honest, right minded men would deem unfair and unrighteous, it is not reasonable, and should not be allowed to exist.</p> <p>2. Same applied to the facts of this case. — Hence, where a contract provided that a house should be built in a workmanlike manner, and the proof showed that the brick on the outside walls were soft, the windows of uneven height from the floor, having large cracks above them, the floors uneven, and that light could be seen through the wall in many places, although skilled workmen testified that the house was built in a workmanlike manner as understood in that section of country, it was erroneous to charge the jury that the contract required that the house should be built in a workmanlike manner, construed according to the custom and usages of the section in which the contract is made.</p>

Tried before Hon. J. M. Carmichael. Action by tire Raisin Fertilizer Company against the J. J. Barrow, Jr. Company, to recover for goods sold and delivered to defendant. All the facts are sufficiently stated in the opinion.

<p> Action for Money Paid on Certificate of Deposit. </p> <p>1. Burden of proof — A son, who after his father’s death asserts a gift to himself of a certificate of deposit issued to the father for money deposited, has the burden of showing that the father parted with the ownership of the certificate.</p> <p>2. Gift inter vivos when complete. — A certificate of deposit indorsed and delivered as a gift is a complete assignment of the fund and such gift is not revoked by the death of the donor before the money is collected.</p> <p>3. Evidence of intention to malee gift. — The facts that the relation of father and son existed between the claimant and deceased; that deceased had made advances to his other children; that he had frequently declared his intention to give claimant $700.00 to equalize his portion with the other children, show that the indorsement and delivery of the certificate for that sum were intended as a giit.</p> <p>4. Gift not a contract. — A gift completed on Sunday is not violative of Section 1749 of the Code which declares void contracts made on tiiat day.</p>

<p> Assumpsit on Common Counts. </p> <p>1. Payment of check to agent, when good. — When a bank pays a check drawn on it by a customer to an agent who had authority to endorse the check, but whose limited authority to endorse lor collection only, is unknown to the drawee, and checks with similar endorsements had been previously paid through the clearinghouse without objection on the part of the principal, this operates as a payment of the debt for the settlement of which the check was drawn.</p>

Tried before Hon. B. F. Cassady. The only error assigned is the action of the court in sustaining plaintiff’s demurrers to the defendant’s pleas.

Tried before Hon. H. C. Speake. Tliis action was brought by W. L. Oliver & Company, against Charles W. Baisler to recover one hundred, fifty-nine dollars and tweuty cents, the contents of two lost registered letters.

Tried before Hon. John P. Hubbard. Action by George P. Heard against I. T. Traweek, sheriff, and others, for breach of his bond.

Tried before Hon. W. H. Simpson. Action by Mrs. J. St. Clair Neal, against the Decatur Build-mg & Investment Co. for the withdrawal value of fourteen shares of stock. The demurrers to the third and fourth pleas set forth in substance that the plaintiff was not a stockholder after the notice of withdrawal had been given by her. cited Cook on Stock, 52; Thames v. Ins. Go. 49 Ala. 577 ; M. & G. R. R. v. Grayson, 88 Ala. 576; Robertson v. Bradford, 73 Ala. 116; 7 Am. & Eng.

Tried, before Hon. L. E. Bos. Action by J. F. Bodgers against James Crook to recover tbe price of some Jersey cattle alleged to bave been sold by plaintiff to defendant.

Tried before Hon. H. C. Speake. Action by Mollie Cofer against C. Schening and others to recover damages for an alleged breach of a bond given by defendant Schening to enjoin plaintiff from selling certain land of defendant C. Schening under a power of sale given by a mortgage, and from collecting rents on the land/ To the amended complaint the defendant pleaded the general issue, and the defendant Anna B. Schening, one of the sureties on the bond, pleaded specially that she…

Tried before Hon. B. M. Stephens. Probate was contested. The facts sufficiently appear in the opinion.