Volume 98 — Alabama Reports

From the City Court of Mobile. Tried before the HoN. O. J. Semmes. The appellant was indicted and tried for the murder of Andrew Eichom, by stabbing him with a knife; and, was convicted of murder in the second degree, at the November Term, 1892.

Feom: tbe Circuit Court of Escambia. Tried before the Hon. JOHN R. TysoN. The appellant was tried at the Spring Term 1893, upon an indictment charging him with the murder of Rose Stanback.

FROM the Circuit Court of Marengo. Tried before the Hon. Jambs T. Jones. ' The defendant was indicted for stealing a watch, and was released on bond to await trial. Before the trial he was remanded to jail.

Eeom tbe Circuit Court of Sumter. Tried before tbe Hon. S. H. Sprott. Steptoe Green was convicted of murder and appeals.

Fbom Marshall Circuit Court. Tried before tbe Hob. JohN B. Talley. Tbe defendant, George Forney, was indicted and tried for tbe murder of Jerry Jefferson, by shooting him with a double-barrelled shot gun, about tbe latter part of September, 1892.

EboM the Circuit Court of Wilcox. Tried before the Hon. JOHN Moobe. The defendant was indicted and tried for forgery, at the Fall Term, 1892.

Erom Marengo Circuit Court. Tried before tbe Hon. James T. Jones. Tbe appellant was indicted for an assault witb intent to murder Isaac Rosenberg, and was tried and convicted at tbe Spring Term 1893.

<p>FROM tbe Circuit Court of Baldwin.</p> <p>Tried before tbe Hon. Jamies T. JoNek.</p> <p>cited Alsa-brooks v. State, 52 Ala. 24; 3 Brickell, 284; Cohen’s Case, 50 108 ; Bains v. State, 74 Ala. 38 ; Winslmv’s Case, 76 Ala. 42.</p> <p>cited Fon-ville v. State, 91 Ala. 39 ; Gibson v. State, lb. 64 ; Kansas City, &c., R. R. v. Crocker, 95 Ala. 412; L. & N. R. R. v. Hall, 87 Ala. 708 ; Tanner v. Stale, 92 Ala. 1; Pate v. State, 94 Ala. LN18.</p>

Erom Mobile City Court. Tried, before tbe Hon. O. J. Semmes. The appellant was tried and convicted at the November Term, 1892, of the City Court of Mobile, upon an indictment charging him with an assault upon May Pritchard, with the inteiit to ravish and murder her. He was convicted and, sentenced to six years imprisonment in the State penitentiary. On appeal, the case is reversed upon the record.

<p>Feom tbe City Court of Mobile.</p> <p>Tried before tbe Hon. O. J. Semmes.</p> <p>cited Code of Ala. § 4449 ; Const, of Ala. Art. 1, Sec. 7; Driscoll’s Gase, 45 Ala. 21; §§ 3733, 4492 of Code of Ala.; Graves v. Hannon, 59 Ala. 510.</p> <p>cited Aticen v. State, 35 Ala. 399; Kenan v. State, 73 Ala. 15; Johnson v. State, 94 Ala. 35; Code of Ala. § 4449; Ih. § 4331; subdivision 8; Gibson v. Slate, 89 Ala. 121; Acts.1888-9, p. 67; Gunter v. State, 83 Ala. 96; Zaner v. State, 90 Ala. 653.</p>

<p>Appeal from the- District'Court of Lauderdale county.</p> <p>Tried before the Hon. W. P. Chitwood.</p> <p>The facts sufficiently appear iu tbe opinion of the court.</p>

Tried before tbe Hon. W. H.. Simpson. Tbe defendant in tbis case, John Fountain, was indicted for selling two oxen, upon wbicb be bad given a mortgage, witb tbe purpose of bindering, delaying or defrauding tbe mortgagee, (§ 3835 of Code).

Tried before Hon. H. C. Speake. The defendant was tried at the Spring Term, 1893, for the murder of James Robinson, and was convicted of murder in the second degree. His punishment was fixed by the jury at thirty years imprisonment in the State penitentiary. A motion was made for a new trial.

<p> Indictment for Engaging in the Business of Operating a “Flyr ing- Jennie.” </p> <p>1. Indictment'under sub-division 11 of § 629 of Code. — An indictment under sub-division 17 of Sec. 629 of Code, to be sufficient, must charge that it is an instrument or device, for public exhibition or entertainment, where charges are made for admission, or, for the use of the instrument or device, or for participation in the exercise or enter tainment; and it must negative the exceptional provisions found in that sub-division.</p> <p>2. ¡Same; demurrer sustained; An indictment which simply charges that the defendant “engaged in, or carried on the business of aflying jennie, without a license, and contrary to law,” is demurrable.</p>

<p> Indictment f or Night Walking. </p> <p>1. Evidence of circumstances tending to prove offense charged. — On trial upon indictment for night walking, evidence is admissible to show that the defendant had been seen at a bar-room of low repute, at night, talking to men there, and had been seen at other places at night that compromised her claim to virtue, as having some tendency to prove the offense charged.</p> <p>2. Defendant, as voluntary witness; may be required to stand up —A defendant who introduces herself as a witness in her own behalf, and states her age at twelve or thirteen years, may be required on cross-examination by the State, to stand up before the jury that they may judge of her age from her personal appearance.</p> <p>3. Charge; instructions that single out particular fact may be properlu refused —Á charge asked for the defendant “that the proof of the youth of defendant might be weighed by the jury as a circumstance in favor of her innocence,” though asserting a correct proposition, was refused, without error, as it singled out and gave undue prominence to a particular fact, to the exclusion of other facts to be considered by the jury.</p>

<p>FROM tbe City Court of Montgomery.</p> <p>Tried before tbe Hon. Thomas M. Arrington.</p> <p>cited Ex parte Bryan, 4A Ala. 402; Hall’s Case, 40 Ala. 698; Henry’s Case, 33 Ala. 389; Ex parte Dorsey, 7 Porter, 293; Con. of 1868, Art. 1, §§ 1 and 2; Spicer’s base, 69 Ala. 162; Sylvester’s base, 71 Ala. 17; Scott v. Simons, 70 Ala. 352; Jefferson County v. Truss, 85 Ala. 486.</p>

Fkom tbe Criminal Court of Jefferson. Tried before tbe Hon. S. E. GrebNE.

FROM the City Court of Montgomery. Tried before the Hon. Thomas M. ArriNGtoN. Harry Gilyard was tried and convicted of shooting into a railroad train.

<p>FROM tbe City Court of Montgomery.</p> <p>Tried before 'Hon. Thomas M. Arrington.</p>

Ekom: the City Court of Montgomery. Tried before the HoN. Thomas M. Arrington.

Petition by Malisa Stewart for tbe writ of habeas corpus, to procure ber discharge from tbe custody of tbe sheriff of Marengo county. Application was first made to the' Hon. Samuel G. Wolf, Judge of Probate of said county, who, after bearing, refused to discharge tbe petitioner; and, tbe application is renewed here. The opinion states tbe facts.

<p>FROM the City Court of Montgomery.</p> <p>Tried before the Hon. Thomas M. Arrington.</p>

From the Circuit Court of Butler. Tried before the Hon. John E. Tyson. Tract Stewart was indicted and tried for carrying a concealed weapon. He was convicted. Before entering on the trial a motion was made by prisoners’ counsel to quash the indictment, which was refused. This action of the court is the only ground of error assigned on this appeal.

Féom tbe City Court of Montgomery. Tried before tbe Hon. Thomas M. ArriNGTON. Abe Dean was convicted of carrying a pistol concealed on bis person. On tbe trial tbe State introduced one Adam Ellis as a witness, wbo testified that one afternoon in tbe latter part of September, 1892, at balf-past 7 o’clock, Abe Dean was in witness’s back yard, and that, upon their having some angry words, tbe defendant drew bis pistol from bis hip pocket, which bad hitherto been concealed.

FROM tbe City Court of Montgomery. Tried before tbe Hon. Thomas M. ArrihgtoN. Joseph S. Sellers and Eobert Sellers were convicted of 'violating a local prohibition law by tbe sale of, liquor outside of tbe police jurisdiction of tbe city of Montgomery. Tbe testimony for tbe State tended to sbow tbat Joseph.

Feomc the City Court of Montgomery. Tried before tlie Hon. Thos. N. Arrington.

<p>Feom; the City Court of Montgomery.</p> <p>Tried before the Hon. Thomas M. Arring-toN.</p> <p>The opinion states the facts.</p>

Fbom tbe Circuit Court of Butler. Tried before tbe Hon. JohN E. TysoN. Tbe appellant was tried at tbe Fall Term, 1892, on an indictment for stealing money, tbe property of Mrs. Mary Knight, from a storehouse in Greenville, Ala.

<p>Feom tbe Circuit Court of Butler.</p> <p>Tried before tbe Hon. John P. Hubbard.</p>

Heard before the Hon. Thos. Cobbs. 1. Mrs. Steele was insolvent at the time of her conveyance to Brown, and Brown was chargeable with notice of that fact. If Mrs. Steele sold for the purpose of hindering, delaying or defrauding the complainant and her other creditors, the conveyance to Brown was invalid as to them.— Crawford v. Kirlcsey, 55 Ala. 282; Lehman v. Kelly, 68 Ala. 192 ; also, Bricked’s Digest, Yol. 8, page 516, paragraphs 143, 144, 145, 146 and 147. 2.

Heard before the Hon. WM. H. Tayloe. 1. The injunction granted should he dissolved. Tbis is tbe main question before tbe court. Tbe injunction was mandatory, was unprecedented, and improvidently granted. As to bow mandatory injunctions should be treated, (a.) The general principle.; citing High on Injunctions, sec. 2; Kerr on In. Yol. 1, p. 51 ; Mayer’s Appeal, 23 P. F. Smith, 164; Redfield Law of R’ways, vol. 2, p. 417; Isenbery v. E. India Est. Go., 33 L. J. 392.

Heard before tbe Hon. Vm. H. Tayloe. Tbis bill was filed by P. A. Tutwiler, tbe appellee, against Florence E. Atkins, Mary B. Atkins and Yictor B. Atkins, claiming a riglit to pay to them the balance of complainant’s bid on land sold at mortgage sale at which be claims to have been tbe purchaser, and to have a deed executed to him; and also offering to redeem and pay off a prior mortgage to a Foreign Mortgage Company, transferred to and held by said defendants, or some one…

Heard before the Hon. H. A. Sharpe. 1. Equity, will not, as a general rule, interfere by injunction, with the enforcement of a municipal ordinance. — Moses v. Mayor and A. of Mobile, 52 Ala. 198. 2. Equity will, however, interfere to protect the franchise of a corporation from infringement. — Port of Mobile v. L. é N. R. R. Go., 84 Ala. 110. 3. Private corporations take their franchises subject to the reasonable burdens incident to the growth and development of the country.

Heard before tbe Hon. ¥m. H. Tayloe. This bill was filed December 6, 1890, by Elizabeth A. Banders, widow of Charles P. Sanders, deceased, against Oscar McWilliams, who was’ in possession of lands 'formerly owned by her said deceased husband, and sought to have her dower assigned in relation to said lands under §§ 1910-11 of the Code. The bill alleges that complainant was married to her said husband in 1840, and that they lived together until his death in 1889.

Tried before the Hon. H. A. Shakpe. This action was brought by J. M. Tuck, as administrator, etc., against the Louisville and Nashville B. B. Co., to recover damages for negligence causing the death of Walter I. Wilkes. The court gave the general affirmative charge in favor of the defendant. insisted that the question of negligence should have been submitted to the jury, citing Burns v. Chicago R. R. Co., 69 Iowa, 450 ; 28 Am. & Éng. Bi. B. Cas. 409 ; 14 Am. & Eng.

Tried before the Hon. B. É. Cassady. Appellant insisted that an action for an amount due from a railroad company for killing a calf was but an imperfect statement of a claim for damages, and under the liberal system of amendments in this State, the plaintiff should have been permitted to perfect his complaint, by stating that, the killing was caused by the negligence of the defendant; that it is especially permissible since said imperfect complaint was filed in a justice’s…

Tried before the Hon. S. H. Speott. This action was brought by J. B. Sanders, to recover the sum of fifty dollars claimed to be due him from William Edmonds on a written contract for labor and services to be rendered him by said Sanders for the year 1887. The Court gave the affirmative or general charge in favor of the defendant, on the evidence, which is the only error assigned on the appeal. cited Bromley v. Birmingham Mineral R. R. Gom’jly, 95 Ala. 397. 1.

Tried before the Hon. W. W. Wilkerson. This action was brought by the appellee, M. M. Phillips, against the Kansas City, Memphis & Birmingham Railroad Company, to recover damages for personal injuries received by the plaintiff in a collision of defendant’s trains, alleged to have been caused by the defendant’s negligence. The material facts may be summarized as follows: Appel-lee was on a train of the appellant as a passenger.

Tried before the Hon. J. T. Jones. 1. The mailing of Foley’s assent to Eelratli’s letter reconsidering and agreeing to accept the goods on condition named, constituted a complete purchase, and the goods became Eelrath’s, and were at his risk. — Magee v. Billingslea, 3 Ala. 679; Leonard v. Davis, 1 Black. 476-483; Tome v. DuBois, 6 Wall. 548-554; Cleveland v. Williams, 94 Am. Dec. 274.

Heard before the Hon. H. A. Sharpe. The bill in this ease was filed in the City Court, sitting in equity, by the Eureka Company, and Wm. A. Walker and Joseph P. Mudd, as execútorsand trustees of the estate of Wm.

Heard before tbe Hon. Thos. Cobbs. Tbe bill was filed on tbe 16th of December, 1892, by tbe appellee, A. S. Yandegrift, against George Passe, E. C. Sackhoff, VV.

From Birmingham City Court. Heard before the Hon. H. A. Sharpe. This is a bill filed in the City Court of Birmingham, on the equity side, by Adelaide Wheeler, as administratrix of the estate of Henry L. Wheeler, deceased, against Eugene F. Enslen, the administrator of the estate of James Kendall, deceased, and Leila K. Brown and J. K. Brown, her husband, the lieirs-at-law of said James Kendall, deceased.

Tried, before tlie Hon. James B. Head. An insolvent may sell the whole or part of his property in payment of an antecedent debt and the sale will be upheld if the debt be bona fide, its amount not materially less than the reasonable value of the property and no use or benefit be reserved to the debtor. — Hodges v. Coleman, 76 Ala. 103; Harmon v. McRae, 91 Ala. 401; Lehman v. Greenhut, 88 Ala. 478; Knotoles v. Street, 87 Ala. 357, and many other cases not necessary to be…

Heard before the Éon. T'. M. Áeeqígton. 1. Tlie rule is that an answer which denies generally the facts charged in the bill, and at the same time admits facts which establish the charges, is taken as a plenary admission for the purpose of a decree. — Boss v. Tyach, 14 How. 313; Gres. Eq. Evidence, 459. An answer false in one particular loses all weight as evidence.— Gunn v. Brantley, 21 Ala. 633; Pharis v. Leachman, 20 Ala. 662. 2.

<p>Appeal from Birmingham City Court.</p> <p>Tried before the Hon. W. W. Wilkerson.</p> <p>The facts of this case appear in 94 Ala. 413, on former appeal.</p> <p>cited: Enslay Ry. Co. v. Chewning, 93 Ala. 24; Hollman’s Case, 84 Ala. 133; Brook v. S. & N. R. R. Co., 65 Ala. 79; K. C., M. & B. R. R. Co. v. Crocker, 95 Ala. 412.</p> <p>cited 98 Ill. 638; 17 Mo. App. 212; 5 Am. St. Rep. 243; 22 State Rep. 459.</p>

Tried before the Hon. W. W. ‘WilkessoN. Tbis was a suit brought by Steiner Bros, against J. Beit-man to recover the amount alleged to be due on a promissory note given by defendant for certain shares of the cap • ital stock in the Birmingham, Powderly & Bessemer Railroad Company. The defendant filed nine ple^s. Demurrers were interposed to these pleas, and the present appeal presents for review the rulings of the court upon the demurrers.

ArPEAL from Hale Chancery Court; Heard before the Hon. W. H. Tavloe.

Tried before the Hon. James B. Head. Tbis action was originally brought by Fanny G. Steele, the widow of Robt. L. Steele, against Council B. Wooteu, to recover the sum of three thousand dollars, “due from him for money received bv defendant on the 14th of January, 1888, to the use of plaintiff.” The defendant pleaded the general issue and the statute of limitation of three years, but after-wards withdrew the latter plea.

<p>Appeal from Marengo Circuit Court.</p> <p>Heard before the Hon. James T. Jones.</p> <p>The facts appear in the opinion of the Court.</p> <p>cited : Dillon on Mimic. (Jorp. § 51; Ex parte Reynolds, 87 Ala. 138 ; Ex parte Gowert, 92 Ala. 94; 13 Mich. 481; Ballenh/ne v. Wiekersham, 75 Ala. 533; Goole-y on Gon. Lim. (6th Eel.) pp. 170-1; 47 Tex. ,548; 35 N. W. R. 91; 59 N. Y. 599 ; 83 Ky. 361.</p> <p>1. The cases of ex parte Cowert, 92 Ala. 94, and ex parte Reynolds, 87 Ala. 138, are readily distinguishable from this case. In the former, the amending acts are confined to a single section ; in this, they cover the whole act.</p> <p>2. The amending Act, (Eeb. 7, 1893,) is not a departure from the Act amended (1872-3). Section 19, of the Act of 1872-3, regulates the retailing of spirituous liquors within the corporate limits of Demopolis. The amending Act really restricts the former porvers of the City authorities.</p>

City Court. Tried before tbe Hon. John H. Disque. This was an action brought by Tbos. L. Johnson, the appellant, against J. B. Washburn, the appellee, to recover an amount due by bond, or bill single, executed by said Washburn, payable to Ed. Ashley or order, which bore date 30th July, 1890, and was due the 25th of December thereafter, and transferred before maturity to the plaintiff. The suit was commenced on the 10th of December, 1891.

Tried before the Hon. W. E. Clabke. This was a suit for damages brought by Chipman, Calley & Co. against Eoper, the sheriff of Mobile county, Glennon and others, his official bondsmen, for an alleged wrongful levy by said sheriff, of an attachment sued out against A. Curtis, upon goods in the possession and belonging to the plaintiffs under purchase by them from said Curtis.

Heard before tbe Hon. Joseph H. Johnson. Mrs. Prances Ross died on the 18th of August, 1891, leaving a last will and testament executed on the 18th of January, 1887, in which she appointed .her husband, D. A. G. Ross, her sole executor, who offered the will, or alleged will, for probate. It was contested by Mrs. Amanda Bulger and other next of kin, on the grounds of undue influence, fraud, and that testatrix was of unsound mind.

A putt,at, from Birmingham City Court. Tried before Hon. ¥m. W. Wilkeesoh. (No brief came into the hands of the reporter). 1. Dedication of a private way by the owner, to the nse of the public for a highway, is always a question of intention. 5 Am. & Eng. Ency. of Law, 572, snb. 5; Tiedman of Beal Property, § 611 ; New Or. B. B. v. Jones, 68 Ala. 55; Beed v. Mavor, eie. of Birmingham, 92 Ala. 339; Evans v. B. B. Oo., 90 Ala. 54. 2.

Tried before the Hon. LeBoy F. Box. 1. The defendant’s demurrer to the plaintiffs petition should have been sustained. The bond was an entirety, and when broken was wholly forfeited. — Dunlap v. Clements, 18 Ala. 778; Anderson v. Rhea, 7 Ala. 104. 2. The only credit the plaintiff was entitled to was the amount actually realized by the sheriff. — Munter v. IAenleauf & Strauss, 78 Ala. 546. 3.

W. W. Wilkeeson. Action by Battise Pitts, as administrator of Peter Pitts, against the- Alabama Connellsville Coal & Iron Co., to recover damages for the death of Peter Pitts. All the facts pertaining to the pleadings and as disclosed in the bill of exceptions are sufficiently stated in the opinion.

Tried before the Hon. James B. Head. Action by Bell Sanders, as administratrix, against the Kansas City, Memphis & Birmingham Railroad Company, for the wrongful death of R. E. Sanders.

<p> Trover and Case for Conversion or Destruction of Personal Property. </p> <p>1. When trover and cnee, will not lie. — An action of trover, or case, cannot be maintained, by one holding under a second mortgage, against a person who is in possession oí personal property by purchase from a first mortgagee.</p> <p>2. Same. — After default, the legal title passes to the mortgagee, nothing remaining in the mortgagor but the equity of redemption; a second mortgagee takes no greater title than the mortgagor has — a mere equity. As to a stranger, the mortgagor is regarded as the owner, and may maintain detinue or trover against him.</p> <p>3. Costs. — Where suit is brought by a second mortgagee against the holder of a third mortgage, for the wrongful taking by the latter of the property subject to the mortgage of the former, and after the commencement of the suit, the third mortgagee buys a first mortgage upon the same property, and thus invests himself with the legal title, he is liable for costs accrued prior to such purchase of the legal title.</p>

Tried before Hon. John P. Hubbard. Tb’is action was brought by tbe appellee, Tranum, against tlie appellants, to recover damages for tbe alleged conversion by them, of a cream-colored borse; and, was commenced on tbe 19tb of March, 1892. It was shown on tbe trial; that tbe plaintiff, Tranum, about tbe middle of January, 1892, bad gotten tbe cream borse, in controversy, from one M. A. Bussell, by giving a mule and twenty-five dollars in exchange for it.

Eeom: Circuit Court of Tuscaloosa. Tried before tbe Hon. S. H. Bpeott. Action by Sam Lichkoff against John Little and others to recover damages for the breach of an attachment bond, alleging that the attachment had been wrongfully and vexa-tionsly sued out.

Tried before the Hon. H. A. Shabpe. Action by George C. Harris against the Birmingham Mineral Bailroad Company to recover for the negligent killing of plaintiff’s mules. All the facts of the case, and the rulings of the court upon the evidence, are sufficiently shown in the opinion.

Tried before the Hon. H. C. Speakg. Statutory ejectment by Mollie M. Cofer against Christopher Schening. This action was commenced October 30, 1888.

Tried before tbe Hon. H. C. Speake.' Tbis action was begun by an attachment sued out by W. T. L. Cofer against Bobert Jones, and levied on tbe land in controversy. Mary J. Scroggins, defendant’s adopted daugb-ter, filed a declaration of claim of exemption, and in tbe contest of exemption proceedings bad judgment, and plaintiff appeals.

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

Tried before the Hon. J. M. Carmiohael. This was an action of trespass brought by the appellee,.

Tried before the Hon. John P. Hubbard. The petitioner, appellant here,- presented his petition to the Hon. Jno. P. Hubbard, judge of the 2nd Judicial Circuit, within four months after a judgment for $1,000, had been recovered against him, in the Pike county Circuit Court, at the suit of J. R. Robinson, and others, praying for a re-hearing, under § 2872 of the Code.

Tried, before tbe Hon. John P. Hubbakd. This cause originated in a writ of attachment sued out by the appellees, Steiner & Lobman against Aiken & Co., a partnership composed of the appellant, and one Yincent, and levied upon the stock of goods, wares and merchandise in the possession of said Aiken, and which had’ recently belonged to the partnership of which he was a member, but which the appellant claimed to have purchased from Aiken & Co. After the levy of the attachment…

Tried before the Hon. John P. Hubbard. This was a proceeding in the nature of a quo warranto, to oust the incumbent intendant and councilmen of the town of Butledge, and to annul and set aside certain ordinances enacted by them relating to licensing retail liquor dealers. The grounds upon which the proceedings were prosecuted are sufficiently stated in the opinion of the court.

Heard before the Hon. S. K. McSpaddeN. This appeal is taken from demurrers sustained to complainant’s bill. The bill was filed by Mary L. Gore and a number of others, against E. B. Dickinson, J. A. Dickinson, Vm. M. Burris and W. ~W. Gore. Both the complainants and defendants are the heirs-at-law of John Dickinson.

<p> Allotment of Dower; Separate Estate of Widoiu. </p> <p>1. Dower reduced by estate-in-remainder, of widow. — In the allotment of dower to the widow, a reduction in the dower interest to be assigned, as provided by Sections 2354 and 2355 of the Code, should be made, where it is shown that the widow owns a separate estate consisting of a vested remainder in certain lands.</p> <p>2. Same. — The operation of §§2354-5, of the Code does not'depend upon the result of an inquiry as to whether the separate estate of the widow in its existing form is presently- productive of an income, or whether it be in possession, or the possession be postponed to some future time or event. A vested estate in remainder, is as much property as an estate in possession.</p>

Court. Heard before tbe Hon. W. H. Tayloe. The appellee, Sarah Downey, filed her bill against John Downey, for maintenance and support. The bill alleged that complainant was married to the defendant about the year 1843, and that they had lived together as man and wife until a short time before the year 1891.

Tried before tbe Hon. ¥i. E. ClabKE. Tbis case bas been once before beard in tbis court, and is reported in 94 Ala. 143, where tbe facts are fully stated. On tbe second trial (tbe present) of tbis case in tbe Circuit Court, tbe plaintiff’s complaint embraced six counts, wbicb were demurred to, tbe court sustaining demurrers to tbe last three.

Heard before tbe Hon. Ti-ios. N. ARRINGTON. Tbe bill in tbis case was filed Mareb tbe 12tb, 1892, in tbe City Court of Montgomery, sitting in equity, by Tbos. H. Watts, as executor of Wade Allen’s last will.

ArPEAL from Bussell Circuit Court. Tried before tbe Hon. J. M. Carmichael. (1). If tbe testimony of Norris, tbe engineer, be true, tbe plaintiff is not entitled to recover. — Ala. G. So. R. R. v. Me Alpine, 75 Ala. 113; lb. v. Roebuch, 76 Ala. 113; Ga. Pa. Rwy. Go. v. Hughes, 87 Ala. 610. (2). Tbe burden is on tbe plaintiff to sbow tbe negligence of tbe defendant, railroad company.- — 87 Ala. 610. (3).

Heard before the Hon. Thomas Cobbs. The opinion of this court sets out fully tbe facts considered and passed upon in this cause. Í. Appellant’s demurrer to appellee’s bill should have been sustained, because the contract therein sought to be enforced was without consideration, as appears on its face. — McBryde, v. Sayre, 86 Ala. 458; Pomeroy’s Eq.

Tried before tbe Hon. JOHN B. Tally. This action was brought by the Borne Brick Company against E. B. Cook aud J. D. Balls, and Smith & Spencer to declare and enforce a lien claimed by the plaintiff for certain car-loads of brick furnished to said Smith & Spencer, contractors, to be used in the erection of a brick house for E. B. Cook and J. D. Balls, in the town of Port Payne.

<p> Action for Damages against Constable, for Breach of Official. Bond. </p> <p>1. When‘proceedings in justice court competent evidence in action on constable's bond. — When an action is brought in the Circuit Court, against a constable and his official bondsmen, for failure of constable to turn over property to party entitled, that had been levied on by the constable in an action of detinue in justice court, the affidavit, summons and complaint and detinue bond are competent evidence for the plaintiff.</p> <p>2. Objection to question not answered. — An exception based on an objection to a question asked that appears not. to have been answered, or if answered, was afterwards, excluded, is not well taken.</p> <p>3. Witness placed under the rule. — Where a witness has been placed under the rule, and comes back into the court and listens to the evidence, it is in the discretion of the court whether he be permitted to testify in the case; and, the ruling of the court on the subject is not a subject of review in this court.</p> <p>4. Levy on property not shown by the return. — The return of the sheriff is not conclusive as to any matters in respect to which it is silent; if property is levied on, which is not mentioned in the return, the fact may be shown by extrinsic evidence, in a proceeding against the sheriff involving the property actually levied on.</p> <p>5. Burden of proof in action at bar. — In the case at bar, the burden is on the plaintiff to maintain the averments oí Iris complaint; had plaintiff sued in detinue, trover or trespass, proof oí actual possession, or of a right to immediate possession, and the seizure of the property by the constable, would have authorized a recovery.</p> <p>6. Getting possession of property by breach of the peace. — No man can obtain possession of property in the actual possession of another against his will by a breach of the peace, and then justify under a superior right or title.</p> <p>7. Same. — Nor can a private person, or legal officer, by the forms of law, obtain possession of property in the possession of another under the claim of ownership, and after getting possession under legal process, abandon the legal process and set up an independent superior title.</p> <p>8. Measure of damages. — A person who wrongfully takes property from the possession of 'another, against his will, is liable in damages to the full value of the property taken ; where peaceable possession is taken under color or claim of right, the damages for its detention or conversion is the actual damages sustained; and in the latter case, the defendant may set up a superior outstanding title in another, if he can connect himself with it</p> <p>9. Abstract charge. — A charge predicated upon an hypothesis not supported by any evidence in the cause, is abstract.</p> <p>10. Charge, misplacing the burden of proof.— In an action against a constable and his bondsmen for misfeasance in failing to return property levied upon in a detinue suit, to the defendant, upon failure of plaintiff to give a bond therefor, a charge which asks that if the evidence fails to reasonably satisfy the jury that the writ of detinue came into the hands of the constable before he seized the property in question, that their verdict should be for the defendant, misplaces the burden of proof.</p>

Heard before the Hon. Thomas'M. AkringtoN. The bill in this case was filed on the 25th of Feb. 1893, by Carrie J. Loeb and Harriet Loeb, against Lena Wolffe, the surviving wife of Samuel Wolffe, deceased, and their children, and sought to quiet, and confirm the title, of complainants, to a certain lot and storehouse on Commerce street in the City of Montgomery.

Tried before tbe Hon. James R. Dowdell. Tbis action was brought bj W. J. Rutland to recover an undivided fifth interest in certain lands in Macon county, which he claimed to inherit from Willie Lee Rutland under the deed set out in the opinion of the court. The cause was tried upon an agreed statement of facts, submitted to the presiding judge without the intervention of a jury. The judgment of the court was in favor of the defendants in possession.

Heard before the Hon. Wi. H. Tayloe. The facts of this case fully appear in the opinion of the Court. 1. The vendor’s lien is founded upon principles of good conscience which forbid that the purchaser should have and retain land for which he has not paid, but is a mere equitable presumption that may be rebutted, and may yield to other natural equities. Burgess v. Greene, 64 Ala. 509; Terry v. Keaton, 58 Ala. 667, 670. 2.

Tried before Hon. JOHN H. Disque. The appellant, Cora D. Motley, who was plaintiff in the court below, brought her action against the appellees, J. D. Jones and Mollie Jones, there the defendants, to recover two lots, No. 7 and No. 11, situated in the town of Attalla. The plaintiff claimed title under a sheriff’s deed.

Tried before Hon. JohN B. Tally. This was an action brought by the appellee, W. A. Boss, to recover of the appellant, L. G-. Jones, damages alleged to have been suffered by a breach of a warranty, and for deceit of the defendant, in selling to plaintiff a horse as a hind, gentle work horse, but which, upon being hitched to plaintiff’s buggy, became unruly and ran away, breaking the buggy and throwing plaintiff to the ground.

- Tried before tbe Hou. JOHN P. Hubbabd. Tbis was an action for money bad and received, brought by tbe appellant, Bobert Lowery, against “E. J. Daniel, Adm’r. of W. J. Daniel, dec’d.” claiming one hundred and twelve and seventy-two hundredths dollars, “money had and received by the defendant, to and for the use of the plaintiff.” The defendant, for answer, pleaded that he had been appointed the administrator of said W. J. Daniel’s estate, but had, before the comencement of…

Heard, before tlie Hon: Jebe N. Williams. 1. There can be no trust in case' of trespass or larceny, as charged, and the Chancery Court has no jurisdiction in such cases. — Doyle v. Murphy, 74 Am. Dec. 165 (Decisive of this case); Weer v. Grand, 88 Ill. 490; Steele v. Ciarle, 77 Ill. 471. 2.

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

Tried before the Hon. H. C. Speake. This action was brought by appellants to recover of the appellee tbe value of alleged professional services rendered by appellants under employment as hereinafter stated.

Tried before the Hon. B. F. Cassady. On the 3rd day of October, 1892, J. Begenstein & Co. recovered a judgment by default for $275.45, in the City Court of Anniston, against appellee, Georgie Marion, in a suit on two counts for the same indebtedness, counting on the promissory note of the defendant, with a waiver of exemptions, and also on the common count for merchandise, goods and chattels sold.

Tried before tbe Hon. JOHN P. Hubbard. Statutory ejectment by Ezekiel Watson against B. H. Lewis, as administrator of tbe estate of Alfred Holley, deceased. Defendant pleaded tbe general issue, and adverse possession for ten years.

<p> Action on Promissory Note by Payee Against Accommodation Indorsers. </p> <p>1. Alteration of indorsement, changing the UahiUtg of indorser. — The owner of indorsed paper, indorsed' in blank, may write above the name of the indorser whatever is necessary to invest him with the legal title, or confirm his ownership, but not to change the liability of the indorser, or take away any legal defense to which he may be entitled.</p> <p>2. Accommodation indorser, when not liable. — The original payee of a note made and indorsed purely for his accommodation, cannot maintain an action against the drawer, nor against such indorser, there being no consideration moving to or from the payee. A plea of want of consideration, in an action against such accommodation indorser, is a full answer to the suit.</p> <p>3. Irregular indorsement,. — A promissory note, or bill, in the hands of the original payee, indorsed for his accommodation, after its execution and delivery to him, by indorsement without new consideration moving to or from the payee, is, as -to such holder, an “irregular indorsement,” and no more than an undertaking by such indorsers, “to answer for the debt, default or miscarriage of another,” and void under the statute of frauds in failing to express the consideration.</p> <p>4. Hamit; bona fide holder, who is not. — Such holder of such irregularly indorsed paper, is not entitled to the protection of the commercial law, and cannot be considered as an innocent bona fide purchaser.</p>

Fbom tbe Circuit Court of Montgomery. Tried before tbe Hon. John D. Hubbard. This action was brought by tbe appellant against tbe ap-pellees at tbe January Term 1892, of tbe Circuit Court.

Tried before the Hon. James R. Dowdell. This was an action of detinue brought by Weil Bros, against Lucius Foreman, to recover possession of mules and a wagon under a mortgage made to the plaintiffs by Ful-wood Foreman, a son of the defendant, on the 15th of January, 1891.

Tried before the Hon. War. E. ClaR.ee. This was a suit by the appellee, Wm. A. Sanders, brought on a judgment recovered by him before Edwin For dy, a Justice of the Peace of Mobile county, against the appellant, Leopold Marx, on the 7th of June, 1884. Sanders revived this judgment by statutory scire facias, on the 21st of June, 1886. The present suit was brought on the 9th of May, 1892.

Tried before the Hon. O. J. Semmes. This was a suit by John L. Lavretta to recover of Wm. H. Holcombe, the sheriff of Mobile county, the amount remaining unpaid on a venditioni exponas, which was placed in his hands for collection, and which was issued in an attachment suit brought by the said Lavretta against one Moraquez, his tenant.

Heard, before the Hon. JOHN A. Foster. This was a bill filed on Sept. 25th, 1891, by Charles E. Ingram, to foreclose a mortgage executed to him by C. L. Heard, and his wife, Katie, on a house and lot in the town of Hatchechubbee, Bussell county, given to secure a joint note executed by them to the complainant. At the time the bill was filed, both said C. L. Heard and his wife, had died.

Heard before tbe Hon. Jebe N. Williams. Tbe bill in tbis case was filed on tbé 3rd of November, 1892, by tbe Merchants and Planters National Bank of Montgomery, against Janney and Cheney, as trustees of Moses Bros. It prayed that defendants be required to redeem forty shares of tbe capital stock of tbe Montgomery Eeal Estate Association, which Moses Bros., tbe assignors of defendants, bad pledged to complainant before their assignment to defendants, as security for a loan…

Tried before the Hon. S. K. McSpadden. The bill in this case was filed by Loucheim & Co., a partnership, against E. B. Eulmer, J. E. Denny, and the Eirst National Bank of Talladega, and sought to set aside, as fraudulent and void against the complainants, a deed of trust executed by • said E. B. Eulmer to the said Eirst National Bank of Talladega, conveying a stock of goods in store at Syllacauga, with a provision that said Denny should take charge of the same as trustee,…

Heard before the Hob. J. M. Carmichael. A demurrer to the bill iu this case was interposed by the defendant, on the ground that the plaintiff being a partner in business with the defendant, could not maintain an action at law against him. The demurrer was sustained by the trial court, the plaintiff declined to plead, over, and the case was dismissed at the cost of plaintiff. From this ruling of the lower court, the plaintiff takes an appeal to this court. 1.

Tried before the Hon. JOHN E. TysoN. This was an action for money had and received, and was brought by the First National Bank of Montgomery against B. E. Chapman at the January Term, 1898; and was tried upon the following agreed statement of facts: “ That on the 81st of August, 1888, E. J. Chambers was indebted to said plaintiff (First Nat.

Tried before the Hon. LeEoy E. Box. This was a suit brought by the appellee to recover the amount of a promissory note made by appellants in payment. of a bill of hardware shipped by the former, from Borne, Ga., to the latter, at Piedmont, Ala., under the circumstances that appear in the opinion of the court.

Tried before the Hon. John B. Tally. This action was brought by the appellee, T. B. Mathews, against the appellant, B. B. Savage, the judge of probate of Cherokee county, and the sureties on his official bond, and was begun on the 29th of August, 1890.

Tried before the Hon. J. E. Dowdell. Mrs. E. W. Hunter brought an action qf trover against W. M. Dulin to recover damages for the conversion by said defendant of a bay mare, which plaintiff claimed as her property.

City Court. Tried before the Hon. John H. Disque. The heirs at law, Fannie Hollingsworth and others, of Joshua B>. Walker, brought their action of ejectment against L. K. Walker, the wife and grantee of John F. Walker, to recover the possession of certain lands occupied and claimed by the defendant. These lands had been sold by one Leek, first to Joshua B>.

A. Foster. The bill in this case was filed by the National Bank of the B1epublic, of New York, against H. Dickinson and others, in which it was sought to subject to the payment of a debt due from said Dickinson to the complainant, the proceeds arising from the sale by said Dickinson, of a stock of merchandize, notes, accounts &c., which, it was alleged, had been attempted to be sold for the purpose of hindering, delaying or defrauding the complainant in the collection of his…

ArPEAL from Talladega Circuit Court. Tried before tbe Hon. LeBoy F. Box. Tbe facts fully appear in tbe opinion of tbe court. 1.

Tried before the Hob. J. M. CaRmichael. The plaintiffs, Smith, Grainger & Cantrell of Gallatin,-Tenn., sued the defendants, Penn & Montgomery, merchants doing business at Opelika, Ala., for damages for refusing to accept, and pay for a shipment of flour forwarded by plaintiffs from their warehouse in Nashville, to defendants at Opelika, which had been sold to the defendants by an agent of the plaintiffs, by sample.

Tried before Hon. JOHN P. Hubbard. The opinion contains a full statement of the facts in the case, ana the proceedings had in the trial court.

Tried before tbe Hon. John P. HubbaRD. Upon tbe trial of tbis case, tbe facts of wliicb are fully set out in tbe opinion, and after all tbe evidence was before tbe jury, tbe defendant asked, first, for tbe general charge, wliicb was refused, and tbe defendant excepted.

Tried before tbe Hon. J. R. Dowdell. The appellee, Albert S. Caldwell, tbe plaintiff below sued in ejectment to recover of tbe appellant, Zadock B. Gamble, tbe possession of certain lands in Coosa county named in tbe complaint. Tbe plaintiff rested bis right of recovery upon a deed made to him as trustee of tbe foreign corporation, that took tbe mortgage from tbe defendant, by P. P. Walker, tbe auctioneer wbo sold under tbe mortgage at tbe foreclosure sale.

Tried before tbe Hon. JOHN P. Tally. Appellant, Samuel Buck, sued Carlisle in assumpsit for money bad and received, to wbicb tbe defendant pleaded tbe general issue. On tbe trial, plaintiff asked and obtained leave to file two additional amendments or counts, both in substance tbe same, and declaring upon an express contract to pay one J. F. O’Sbougbnessey $500, upon tbe happening of a specified condition, wbicb condition said counts alleged bad happened.

<p> Action by Employee for Damages, for Personal Injuries. </p> <p>1. Allegata and probata; general charge.— Where an employee sues two railroad companies, alleging that he received personal injuries while in the service and tinder the control of both defendants, and the proof discloses that he was under the control and in the service of one of them only, when he received the injuries of which he complained, the general charge for each defendant is properly given.</p> <p>2. S'errant for different manten; may be joint, and may be several. The relation of master and servant may exist between an employee and two masters ; when in the common service of both he is subject to the control of the joint authority, and, when in the service of one, he is subject to the authority and control of that one alone.</p>

Heard before the Hon. Emmett E. Cbook. Lula M. Draper filed her petition in the Probate Court of Calhoun county, alleging that she was one of the legatees under the will of Ephraim D. Allen, deceased, and that J. Baxter Allen, was appointed the executor of said will without being required to give bond; that petitioner was interested in said estate, and its administration to the extent of the property bequeathed to her by said will.

Tried before the Hon: O. J. Semmes. This was a suit by the city of Mobile to recover from defendants below the amount of the penalty imposed by the mayor for a failure to pay a special license tax laid by an ordinance of the city on all who engaged in the business of selling liquor by the wholesale within its limits.

Tried before tbe Hon. W. E. Clabee. Maria L. Savage brought an action of ejectment in the Circuit Court of Mobile to recover of C. E. Dillard the possession of a house and lot in the City of Mobile. There was a trial of the case, and judgment for the defendant. Upon motion of the plaintiff, the presiding judge set aside the verdict, and ordered a new trial. Erom this order this appeal was taken.

Heard before the Hon. S. K. Mc'Spadden. This bill was filed by Thomas J. Bicliards and others, against Thomas S. Bicliards and others.

Tried before the Hon. John P. Hubbakd. The appellant brought this action against N. M. Slaughter, J. L. Slaughter and D. L. Slaughter, as follows: The plaintiff claims of the defendants the sum of two hundred and forty-five dollars, with interest thereon from Oct. 1, 1889, due by, and upon the following contract: “Patsburg, Ala., July 15, 1889.

<p>Appeal from Dale Circuit Court.</p> <p>Tried before A. T. Borden, Esq., Special Judge.</p>

Clair Circuit Court. Tried before tbe Hon. LeEoy E. Bos. This was an action of assumpsit brought by H. J. Inzer and Yarina Inzer, as executor and executrix of tbe estate of Joseph Y. Inzer, deceased, against tbe American Mortgage Company of Scotland, Limited, to recover of said defendant an alleged surplus remaining in its bands after tbe satisfaction by foreclosure, under tbe power of sale, of a debt secured by a mortgage executed by plaintiffs’ testator.

Tried before tbe Hon. LeBoy F. Box. Tbis was a suit brought by F. P. & C. L. Dunnam to recover of tbe defendant, A. J. Wadsworth, tbe sum of eighty-two dollars, due on several promissory notes made by the defendant.

Heard before tbe Hon. S. K. MgSpadden. This bill was filed by James B. Garrett against Wilson L. Heflin individually, and as tbe executor of tbe last will of Prudence Bailey, and others, legatees under said will, and was filed June 19th, 1890. The bill was answered, and issue was made up, and many witnesses were examined, tbe cause was submitted for final decree, which was rendered dismissing complainant’s bill out of court.

Heard before tbe Hon. W. H. Tavloe. Tbe bill in tbis case was filed by Theodore C. Bates and others against Frederick G-. Bromberg and others, for the purpose of having the administration and settlement of the estate of Susan E. Rouse, deceased, removed from the Probate Court of Mobile county into the Chancery Court.

Heard before the Hon. B. E. Cassady. This was a proceeding by petition for the writ of mandamus to the judge of tbe City Court of Anniston, by Win.

Tried before tbe Hon. J. B. Dowdell. On. tbe trial of tbis cause, G. T. Mitcham, the husband of the claimant, testified that he went to the house of the defendant, C. P. Baird, on the 4th of October, 1891, and, as the agent of claimant, demanded payment of the balance due' from Baird on her mortgage; that in that interview said Baird told witness that if he, Baird, did not pay the amount on the 6th of that month he would surrender the mortgaged property to witness.

Tried before tbe Hon. B. F. Cassady. 1. The court erred in overruling defendant’s motion to dismiss plaintiff’s cause of action. The money paid into court was paid to the plaintiff against the objection of defendant.— Hanson v. Todd, 95 Ala. 328. 2. The plaintiff is estopped from saying that the plea of defendant, accompanying his payment into court of the amount admitted to be due, is not a plea of tender.

Tried before the Hon. J. M. CaRmiohael. This action was brought by the appellant, the Montgomery Iron Works, against W. H. Smith, the appellee, to recover possession of certain mill machinery that had been sold by appellant, to said Smith, on time payments. To secure the deferred payments, the sale was conditional, the title to said machinery being retained by the vendor until all the purchase money was paid.

<p>Appeal from Pike Chancery Court.</p> <p>Heard before the Hon. Jwo. A. FOSTER.</p>

Tried before tbe Hon. John P. Hubbard. This action was brought by J. ,F. Pritchett and others, against Henry Smith, to recover an amount of rent agreed to be paid by said Smith for certain farming lands for the year 1891, and was commenced by attachment. The attachment was levied on a quantity of corn grown on the rented premises during the year 1891, which was replevied by the defendant. The cause was tried upon the plea of the general issue.

Tried before the Hon. James R. Dowuell. Mary Ellington died leaving a will devising an half interest in a certain plantation in Macon county to be sold and tbe proceeds to be equally divided among ber brother’s and sister’s children. Her brother, J ames M. Tarpley was appointed tbe executor of ber will.

<p> Action of Detinue. </p> <p>1. Detinue; when agxensmmt of value not required. — In an action of detinue, where the defendant surrenders the property sued for, to the plaintiff, without bond, who, at the trial, takes a judgment for the same, by default, it is not ground for reversal, on appeal, that the value of the property recovered was not assessed by the jury.</p>