Volume 99 — Alabama Reports

Tried before the Hon. John P. Hubbard. The proceeding in this case was commenced by a petition filed by the Commercial Eire Insurance Company, addressed to the Board of Revenue of Montgomery County; and sought to have an assessment made by the tax assessor of Montgomery county against the petitioner reduced, by deducting from said assessment, among other items, $51,000.00 of the capital stock of the Commercial Eire Insurance Company, which was invested, as alleged in the…

Heard before the Hon. W. H. Tayloe. The bill in this case was filed by the appellee, Elijah S. Taylor, on August 13, 1888, against Thomas P. Miller & Go. and the individual members of said firin, and Samuel Timney, Mary L. Timney, R. D. Byrne, and Frank E. Overall, as assignee of Thos. P. Miller & Co. The purpose of the bill was to enforce a vendor’s lien on certain property, which was specifically described therein.

Tried before the Hon. James B. Head. This action was brought by the appellee, C. M. Leed, against the appellant corporation; and sought to recover damages for the breach of a bond given by defendant as principal, to secure the issuance of a writ of garnishment.

Tried before the Hon. H. A. Sharpe. This was an action brought by the appellees against the appellant, and sought to recover damages for injuries caused to plaintiffs’ lot, by the construction by defendant of an embankment, for the track of a railroad, along the avenue on which the lot in question abutted.

Tried before tlie Hon. John P. Hubbard. This was an action brought by the appellant, C. T. Rogers, against the appellee, J. D. Brooks; and sought to recover the statutory penalty for willfully and knowingly cutting trees upon the land of the plaintiff, without her consent.

Heard before the Hon. Thomas Cobbs. The bill in the present case was filed May 29, 1889, by the brothers and sisters, heirs-at-law, of James M. Ware, deceased, and it makes defendants the descendants of Mrs. Dupuy and of William S. Mudd, the remaining heirs at'law of James A. Mudd, deceased.

Tried before tbe Hon. John P. Hubbard. Tbe present action was brought by the appellee corporation against the appellants, to recover for the building of certain cotton presses, and counted on the common counts.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on June 22, 1889, by the appellees, who were the brothers and sisters of Matthew Creamer, deceased, and the descendants of such brothers ancl sisters who had died, against the appellant, David Creamer, as executor and trustee under the last will and testament of Matthew Creamer, deceased.

Clair. Heard before the Hon. S. K. McSpadden. The bill in this case was filed March 8, 1890, by the ap- ■ pellants against the appellees. It appears from the allegations of the bill, that on March 8, 18d0, Wesley Goodwin, being seized and possessed of certain lands described in the bill, executed together with his wife, Melissa D. Goodwin, to James McLaughlin, andW.

Heard before the Hon'. W. H. Simpson. The bill in this case was filed by the appellee, W. W. Wadsworth, on January 20, 1891, against the appellant, Lorenzo Corey, and the Decatur Building Supply Company.

Heard before the Hon. H. A. Sharpe/ The bill in this case was filed by the appellees against B. F. Eborn and the Jefferson County Savings Bank; and sought to set aside, as fraudulent, a sale of a stock of goods.

Tried before the Hon. Tx-ios. M. Arrington. The facts of the case are sufficiently stated in the opinion. The claim of exemption was defective, and the sheriff should have regarded it as a nullity and sold the property thereunder. — Code of 1886, §§ 2526, 2583; Myers v. Conway, 90 Ala. 109; Tons-mere v. Buckland, 88 Aia. 312; Ex parte Redd, 73 Ala. 548; Ex parte Barnes, 84 Ala. 540. cited Daniels v. Hamilton, 52 Ala. 105; Bloch v. Bragg, 68 Ala. 291; Alley v'.

Aiteae from City Court of Montgomery, sitting in equity. Heard before tbe Hon. Thos. M. Arrington.

Appear from the Circuit Court of Pike. Tried before the Hon. John P. Hubbard. This action was brought by the appellants, Merriman & Co., against the appellee, C. J. Iinox; and counted upon a promissory note, made by the defendant to the plaintiffs. The defendant pleaded two special pleas to the complaint.

Aepeal from the Circuit -Court of Barbour. Tried before the Hon. J. M. Carmichael. This was a statutory action in the nature of ejectment, brought by the appellant, Annie T. Lee, against the appellee, Jane Thompson; and sought to recover the possession of a certain tract of land specifically described in the complaint. The action was commenced on October 29, 1889.

Tried before the Hon. John B. Tally. Action by James H. Howell, against James ~W. Bowman. Judgment for plaintiff. An execution was levied on certain personal property in the possession of defendant, and a claim to the property levied on was interposed by H. YV. Carden, as trustee under a deed of trust executed by defendant to secure the payment of his promissory nóte to E. T. Ewing.

Clair. Heard, before the Hon. S. K. McSpadden. The bill in this case was filed by the appellee, Francis M. Burnum, against Charles G. Brown, as administrator de bonis non of the estate of Robert Caskey, deceased; and prayed for an accounting and settlement of the affairs of a partnership, previously existing between the complainant and the respondent’s intestate. The respondent demurred to the bill, and also made a motion to dismiss the same for the want of equity.

Heard before the Hon. John A. Foster. The bill in this case was filed by the appellant, Eugene Beebe; and sought to redeem from the appellee, W. H. Buxton, certain real estate which had been sold under the power of sale contained in a mortgage by said Beebe & m Henshaw, the said Buxton being the purchaser at said sale.

Heard before the Hon. S. K. MoSpadden. The bill in this case was filed April 29, 1890, by the Berney National Bank, against Thomas H. Dunn, Fannie H. Dunn, C. J. Cooper & Co., W. A. Scarbrough, Eba Scarbrough, Flem Higgins and R. P. Thomason.

Heard before the Hon. W. W. Wilkerson. This was a common law action of ejectment, and was commenced on July 26, 1888. In the declaration as amended, there were three demises. One in the name of David Pear.son, another in the name of S. P. Waits, and the third in the name of John D. Strange and J. H. White.

Tried before the Hon. John Moobe. The appellee, H. H. Hurt, brought an action of detinue against Phillips In 1890, the plaintiff in this suit, H. H. Hurt, had shipped to H. C. Keeble Co., commission merchant and factor at Selma, Alabama, eight bales of cotton, with the direction to hold the same until ordered to sell. H. C. Keeble Company received the cotton, deposited it in the warehouse of Phillips & Parrish, and took warehouse receipts in its name, H. C. Keeble Company.

<p>Ebom tbe City Court of Gadsden.</p> <p>Tried before tbe Hon. John H. Disque.</p> <p>cited Point v. State, 37 Ala. 148; Henry v. State, 39 Ala. 679; Moore v. State, 40 Ala. 49; 35 Ala. 363; 6 Ala. 8,85; 94 Amer. Dec. 257, or 19 So. Car. 140; 1 Greenl. Ev. § 65; Bisb. Stat. Crimes, §§ 70, 233-4, 425; 10 Amer. & Eng. Encyc. Law, 549; 12 lb. 829, n. 3.</p> <p>Tbe indictment is in tbe form prescribed, and tbat form bas remained unchanged for nearly forty years. It was beld sufficient when tbe statute only denounced larceny in a dwelling-bouse or store-bouse; and it would be a strange construction wbicb would now bold it insufficient, when tbe statute bas been accommodated to it.— Wilsonv. State, 61 Ala. 151; Smith v. State, 63 Ala. 55; 3 Brick. Digest, 280, § 459.</p>

<p> Indictment for Murder. </p> <p>1. Evidence relevant to question of self-defense. — The defendant being on trial for the murder of his wife, whom he shot with a pistol and killed on her refusal to go home with him, and having proved that she was a woman of dangerous character, and testified for himself that he wanted to take her home because she had been drinking, and that, as he approached her, she cursed him, threw her hand towards her bosom, and stepped towards him; he may further testify that she owned a pistol, and was in the habit of carrying it in her bosom, although the evidence for the prosecution showed that no weapon-was found on her body, that she was standing still when shot, holding her hands down in front of her person, and that he had threatened, while trying to borrow a pistol, that he would kill her if she did not go home with him.</p>

From the Circuit Court of Pike. Tried before the Hon. John E. Tyson. The defendant in this case, Oliver Pierson, was indicted, jointly with one Will Jackson, for the murder of Eobert Henderson, by shooting him with a pistol; was tried separately, convicted of murder in the second degree, and sentenced to the penitentiary for the term of ten years.

<p>From the Circuit Court of Pike.</p> <p>Tried before tbe Hon. John R. Tyson.</p> <p>The indictment in this case charged that the defendant, a freedman, “witli the intent to steal, or to commit a rape, broke into and entered the dwelling-house of James E. Moore, in which goods or clothing, things of value, were kept for use, sale or deposit.” On the trial, said James E. Moore testified, on behalf of the prosecution, that his dwelling-house Avas broken into and entered one night in June, 1892; that the house consisted of two rooms, which wero separated by an open hall, or passage-way; that his wife aroused him in the middle of the night, screaming, and saying that some one Avas in the room; and that he then heard some one run out through the hall. Mrs. Moore testified that, while lying in bed awake, she heard her puppy whining in the other room, as if at the approach of some one, and then heard some one Avalking lightly over the floor, and “working at the handles of the bureau;” that he then came into the room Avhere she and her husband were in bed, approached the bed, and “peered down at her,” but did not touch her; that she then screamed and aroused her husband, and that she recognized the defendant as the intruder. Mrs. Moore further testified that, “about a month or more before the burglary,” the defendant came to the house, and wanted to borroAV two or three dollars; that she told him she had no money, and he replied, “if he had as much money as she had, he would not want to Avork any more.” The defendant objected to this evidence, “on the ground that it Avas illegal, irrelevant, and too remote;” and he excepted to its admission. Jas. E. Moore testified, also, that on the morning after the burglary, he found tracks made by a naked'foot, running up to his house, across a plowed field, from the defendant’s cabin, and returning to it by a circuitous route; that when the defendant came for his mule in the morning, to begin plowing, he asked him to pull off his shoes and make tracks near the others, and defendant did so without objection; that he measured the tracks, and found that they corresponded with the others in length and breadth, and that there were no peculiarities about any of the tracks. This testimony was admitted without objection, but afterwards, when one Everett, another witness for the prosecution, testified to his measurement of the tracks and their correspondence in length and breadth, the defendant objected and excepted to the admission of his testimony, on the ground that it was the mere expression of an opinion, and the witness was not shown to be an expert. A witness for the defendant testified that he saw one Allen Cooper coming from the direction of Moore’s house, about 12 o’clock the night of the burglary; and Moore had testified that said Cooper and tlie defendant lived on tlie same place, and wore “about the same size of shoes.” The defendant offered to prove by . two witnesses that said Cooper confessed to them, about two months after the burglary, that he committed it. The court excluded this evidence, and the defendant excepted.</p> <p>The defendant requested the following charges in writing, and duly excepted to their refusal: (1.) “The jury in this case have nothing to do with the existence of Jesus Christ, or the manner in which his existence could be proved, but must try the case on the facts.” (2.) “There is no evidence in the case of the existence of Jesus Christ, the jury are not trying any such issue, the pert allusions of the prosecuting attorney are not evidence, and they can not have the slightest weight in the case.” (3.) “The evidence against the defendant is partly circumstantial, and his innocence should be presumed by the jury until his guilt is established by evidence in all the material aspects of the case beyond a reasonable doubt, and to a moral certainty.” (6.) “The evidence against the defendant is partly circumstantial, and his innocence must be presumed by the jury, until the case against him is proved in all its material circumstances beyond a reasonable doubt; to find him guilty as charged, the evidence must be strong and cogent, and unless it is so strong and cogent as to show his guilt to a moral certainty, the jury must find him not guilty.” (8.) “As to foot-prints : "Where no peculiar marks are observed, but the correspondence thus proved is merely in point of superficial shape, outline and dimensions, and those of the ordinary character, it may serve to confirm a conclusion established by independent evidence, but can not be in itself safely relied on, on account of the general resemblance known to exist among the feet and shoes of persons of the same age and sex.” (10.) “Before the jury should convict the defendant, the hypothesis of his guilt should flow naturally from the facts proved, and be consistent with all of them.” (12.) “In criminal prosecutions, to justify a conviction, the evidence should be such as to exclude a rational probaloility of innocence.” (13.) “The humane provision of the law is, that there should not be a conviction upon the evidence unless to a moral certainly it excludes every other reasonable hypothesis than that of the guilt of the accused. No matter how strong may be the facts,if they can be reconciled with the theory that some other person may have done the acts, then - the guilt of the accused is not shown by that full measure of proof which the law requires.” (14.) “The only foundation for a verdict of guilty in this case is, that the entire</p> <p>jury shall believe from the evidence, beyond a reasonable doubt and to a moral certainty, that the defendant is guilty as charged in the indictment, to the exclusion of every probability of his innocence and every reasonable doubt of his guilt; and if the prosecution has failed to furnish such measure of proof, and to impress the minds of the jury with such belief of his guilt, they should find him not guilty.” (15.) “The evidence in this case is not sufficient for the jury to find that the defendant entered the house with the intent to commit a rape.” (16.) “If the jury believe the evidence, they will find the defendant not guilty.” (17.) “Under the evidence in the case, the jury should not find that the defendant entered the house with intent to commit a rape.” (20.) “There is no evidence before the jury that there were any goods or clothing, things of value, kept in the house for use, sale or deposit; and unless they are satisfied from the evidence beyond a reasonable doubt, and to a reasonable certainty, that the defendant entered the house with the intent to commit a rape, they should find him not guilty.”</p>

From the Circuit Court of Bulloch. Tried before the Hon. Jesse M. Carmichael. The defendant in this case was indicted for the larceny of a “bull yearling,” the property of Jeff. Furman.

From the Circuit Court of Barbour. Tried before the Hon. Jesse M. Carmichel. The defendant in this case, Dick Cox, a negro man, was indicted jointly with Dura Gratehouse, a white woman, for living together .in a state of adultery of fornication; was tried separately, convicted, and sentenced to the penitentiary for the term of four years. On the trial, he asked two charges in writing, and excepted to their refusal.

<p> Indictment for Burglary. </p> <p>1. Outhouse within curtilage of dwelling-house. — A conviction may be had. i'orburglary (Code, § 3786) in breaking and entering, with intent to steal, a smoke-house in which meat, corn, &c., is kept for family use, and in which meat is sometimes smoked, although it is distant from the dwelling-house about forty yards, and is not inclosed by the same fence. On these facts, if the court can not. as matter of law, hold that the building is within the curtilage of the dwelling-house, the jury may so find as matter of fact.</p>

From the Circuit Court of Elmore. Tried before the Hon. N. D. Denson. The defendant in this case, Thornton Hooks, a freedman, was indicted for the murder of Willis Thorman, another freedman, by shooting him with a gun, or, as alleged in the the second count, by cutting him with a razor; was convicted of murder in the second degree, and sentenced to the penitentiary for the term of twelve years.

From the Circuit Court of Blount. Tried before tbe Hon. John B. Taluy. The indictment in this case charged, that Lit Hicks and Arthur Hale, with intent to steal, broke into and entered the dwelling-house of Mose Carter, and feloniously took and carried away four ten-dollar gold coins, the property of said Carter. A severance having been granted, Hicks was tried alone, was found guilty, and sentenced to the penitentiary for the term of four years.

From tlie Criminal Court of Pike. Tried before tbe Hon. ¥m. H. Parks.

From the Circuit Court of Crenshaw. Tried before the Hon. John P. Hubbard. • The statute under which the defendant in this case was indicted and convicted was the act approved February 28th, .1887, entitled “An act to prohibit the sale, giving away or disposing of any spirituous, vinous or malt liquors, or intoxicating bitters, beverages or drinks, or fruits preserved in alcobol or alcoholic liquors,” within certain prescribed limits. — Sess. Acts 1888-7, p. 665.

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

Erom the Circuit Court of Geneva. . Tried before the Hon. Jesse M. Carmichael. The defendants in this case, James J. Justice and Henry W. Elliott, were jointly indicted and tried for the murder of Judge Williams, by striking him with a fence-rail, were each convicted of murder in the second degree, and sentenced to the penitentiary for the term of ten years. The opinion states the points reserved by the bill of exceptions, and the material facts connected with them.

<p> Prosecution for Carrying Concealed Weapons. </p> <p>1. T'Fropons found on search of person under arrest. — Whether a conviction may be had for carrying concéaled weapons (Code, § 8775), on evidence showing that a pistol was found concealed on the defendant’s person by a person who assisted in searching him while in custody under an illegal arrest, is not decided, because it does not appear that the arrest was in fact illegal, and a part of the evidence objected to was legal.</p>

Tried before the Hon. John B. Tally. “Tbe defendant Holcombe, with oilier co-defendants, was committed by a magistrate to tbe jail of Marshall county, on a charge of burglary and grand larceny. Tbeir commitment was formal and regular, but tbe magistrate failed to indorse on tbe mittimus tbe amount of bail required of tbe defendants. Tbe jail of Marshall being an unsafe place for tbe confinement of defendants, tliey were duly transferred to tbe jail of the county of Madison.

From tbe County Court of Sbelby. Tried before tbe Hon. John Leepee.

<p> Prosecution for Selling Liqtior without License. </p> <p>1. Charge as io reasonable doubt, or sufficiency of evidence. — To justify a conviction in a criminal case, the evidence must exclude, not “every hypothesis,” but every reasonable hypothesis, except that of guilt; and a charge requested, which requires that it shall exclude “every hypothesis but that of the defendant’s guilt,” is properly refused.</p>

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

Prom the Criminal Court of Pike. Tried before the Hon. Wm. H. Parks. In this case, the defendant was indicted for carrying a pistol concealed about his person.

Tried before the Hon. John H. Disque. Action in the name of the State, against a foreign corporation, to recover a statutory penalty. Judgment by default, for amount of penalty. (1.) The statute under which this action was brought, being highly penal, is to be strictly construed.-— Grooms v. Hannon, 59 Ala. 510; Dale Go. v. Gunter, 46 Ala. 118; Janney v. Buell, 55 Ala. 408.

<p> Prosecution for Bastardy. </p> <p>1. Local jurisdiction. — A. prosecution for bastardy (Code, § 4842), if made during the pregnancy of the complainant, must be made in the county in which she lives, or is for the time being; but:, if not made until after the birth of the child, it must be made in the. county in which the child was born.</p> <p>2. JAmitation of prosecution. — Under statutory provisions (Code, § 4848), a prosecution for bastardy can not be instituted “after the lapse of one year from the birth of the child, unless the defendant has in the meantime acknowledged and supported the child.”</p>

Heard before tbe Hon. Lloyd Bobertson. In tbe matter of tbe probate of tbe last will and testament of Mrs. Peggy Nolan, deceased, which was propounded for probate by ber surviving husband, and contested by Julata Beese, one of tbe heirs-at-law and next of kin.

Tried before'the Hon. John R. Tyson. The appellant was indicted, tried and convicted for disturbing religious worship, under the statute, (Code, § 4083).

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on the 5th day of November, 1889, by the appellants, J. T. Fargason & Co., against the appellees, and its object was to set aside as fraudulent against his creditors, a sale of a stock of goods and his notes and accounts, made by A. M. Hálito Throne, Franklin, Nance & Adams, and J. S. Beeves & Co., the two defendant firms, to which he was indebted. “The material allegations of the bill are, that prior to the…

From tbe Circuit Court of DeKalb. Tried, before the Hon. John B. Tally. The indictment in this case, when returned into court, was indorsed with the name of Rufus Kirkpatrick, as the witness before the grand jury, but the name of John J. Stewart was afterwards indorsed by the solicitor, without the permission of the court, and without the consent of the defendant. The defendant filed a plea in abatement on this ground, and on other grounds stated in the opinion.

Aípeal from the City Court of Gadsden. Tried before tlie Hon. John H. Disque. Tliis action was brought by A. Ullman & Co., suing as a partnership, against B. E. Garner & Co., a partnership composed of B. E. Garner and E. A. Doolittle; and was commenced by attachment sued out before a justice of the peace, on the 30th June, 1892, to recover the sum of $216.16, claimed to be due from the defendants to the plaintiffs for the rent of a store-house in Attalla for the year 1892.

Tried before the Hon. Thos. M. Arrington. — A corporation has its domicile in the State or country of its birth, and is said to be without capacity to emigrate. It can exercise its corporate functions in other States, only so far as it may be permitted by the comity of the local sovereign.

Application by petition in the names of Bichard Pruitt and Thomas Harper jointly, for the writ of habeas corpus, to procure their discharge from the custody of the sheriff and jailor of Madison county, who held them under a mittimus issued by a justice of the peace of said county, under the circumstancés stated in the opinion.

<p>Appeal from the Circuit Court of Montgomery.</p> <p>Tried before the Hon. John R. Tyson.</p>

<p> Indictment for Defamation. </p> <p>1. Bill of exceptions not signed within agreed time. — When a bill of exceptions is not signed in term time, nor within the time specified by written agreement (Code, § 2761; p. 610. note), it will be struck from the record on motion ; but, if it was presented to the presiding judge within the extended period, and he failed or refused to sign it, it may be established in this court as by law provided.</p> <p>2. Defamation; constituents of offense. — To authorize a conviction for defamation (Code, í¡ 3773), the accusation must have been falsely and maliciously made; but the jury may infer malice from the character of the accusation and the want of probable, or reasonable grounds, for making it.</p>

Erom the County Court of Shelby. Tried before the Hon. Jno. S. Leepeb. Two exceptions only were reserved by the defendant in this case on the trial, each of which was to the overruling of his objections to remarks made by the solicitor in his closing argument to the jury.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 21st of February, 1890, by Mrs. Dancy J. Parker against H. Z. Parker, who was the father of Stephen D. Parker, complainant’s deceased husband, and also the administrator de bonis non of his estate ; and sought a settlement of his administration, and also of the accounts of a partnership which had existed between him and said S. D. Parker, under the firm name of H. Z. Parker & Son.

<p> Application for Mandamus to Gircidi Glerlc. </p> <p>1. Statutory lien of contractor or material-man; unused materials. — The statutory lien given to contractors and material-men, for work done and materials furnished in the erection of a house or other improvements on land (Sess. Acts 1890-91, p. 578), does not extend to the unused materials left on the premises after the completion of the building or improvement.</p>

Tried before the Hon. Henry C. Speake. This was • a motion by the sheriff of the county for instructions by the court as to the application of certain moneys in his hands arising from the sale of property under several executions against the F. H. Foster Manufacturing Company.

Tried before the Hon. John B. Tally. This action was brought by James Whitaker and others, the surviving brothers and sisters of Elijah Whitaker, deceased, and the children of his deceased brothers and sisters, suing as his heirs at law, against John DeArmond and David Davis; and sought to recover the possession of a tract of land, which was described in the complaint as “the northeast fourth of the south-west fourth, and the west half of the south-east fourth, _ and the…

Tried before the Hon. John B. Tally. This action was brought in the name of the State, suing for the use of Cherokee county, against J. I). Williamson, R. B. Kyle, and others; was commenced on the 26th July, 1890, and was founded on a recognizance executed by said Williamson as principal, and by the other defendants as his sureties, the condition of which is set out in the opinion.

Heard before the Hon. H. A. Sharpe. The bill in this case was filed on the 27th August, 1892, by Willis D. Colby, against the St. James (Colored) M. E. Church, a private corporation, and H. Adkins &' Sons, as defendants ; and sought to enforce a statutory lien on a lot and building owned by the church, for work done and materials furnished by plaintiff on the church building, under contract with the agents or trustees of the church, amounting to $111.25, with interest from…

Tried before the Hon. John P. Hubbabd. This action was brought by Alex.

Tried before the Hon. Wm. H. Simpson. The appellees in this case, several mercantile partnerships, sued out attachments against Isaac Pinkus, a merchant doing business at Decatur under the name of I. Pinkus & Co.; and their attachments were levied on the same stock of goods. These several attachments were levied outlie 5th-7th March, 1890, and Pinkus filed with the sheriff, on the day last named, a claim of exemption to the goods.

Appeals from the City Court of Decatur. Heard before the Hon. ¥k. H. Simpson. Applications by D„ B. Morrow, W. J. Walling, and A. B. Campbell, respectively, for writs of mandamus to be directed to Hon. E. M. Russell, probate judge of Morgan county, requiring him to dismiss contests of election pending before him, one against each of the.petitioners, on the ground that the contestants had not given security for the costs as by. law required.

Heard, before the Hon. W. W. Wilkerson. The bill in this ease was filed on the 4th November, 1892, by the May & Thomas Hardware Company, a private corporation, against the Birmingham Building & Loan Association, also a private corporation, and S. B. Ethridge.

Tried before the Horn John B. Tally. The record in this case does not show how many of the defendants were served with process, nor how may appeared and pleaded; the judgment-entry only reciting that the cause was tried on issue joined, and that the jury returned a verdict for the defendants. The court charged the jury, on request, to find for the defendants if they belived the evidence ; and this charge, to which the plaintiff excepted, is here assigned as error.

Heard before the Hon. John A. Foster. The bill in this case was filed on the 30th March, 1892, by Wiley M. Grider and his wife, Mrs. Mary B, Grider, against the American Freehold Land Mortgage Company of London, a foreign corporation, and the Loan Company of Alabama, a domestic corporation; and sought to enjoin a sale of certain lands, claimed by the complainants as their homestead, under powers of sale contained in two mortgages executed by them, one to each of the…

Heard before tbe Hon. ¥m, H. Simpson. Tbe bill in tbis case was filed on tbe 19tb day of October, 1891, by V oorbees, Miller & Hupei, a mercantile firm doing business in Cincinnati, Obio, as creditors of Isaac Pinkus, lately carrying on a mercantile business at Decatur, Alabama, under the name of I. Pinkus & Co., against Herbert Cartwright, said Pinkus, tbe sheriff of Morgan county, and several other creditors who bad levied attachments on tbe stock of goods of their said…

<p> BUI in Equity for Injunction of Judgment at Law. </p> <p>• 1. Equitable relief against judgment at law, on ground of accident or mistake. — A court of equity will not grand relief against a judgment at law, on the ground that, by accident or mistake, it was rendered for a greater amount than was due, when it appears that the defendant, when served with process, put the papers in his pocket without reading them, did not show them to his attorney, but told the attorney that he was sued for the sum which he admitted to be due, and the attorney thereupon consented to the. rendition of the judgment as claimed, not knowing that the amount was greater than his client admitted to be due.</p>

Application by petition in the name of Jim Rancl, for the writ of habeas corpus to procure his discharge from the custody of the sheriff and jailor of Lauderdale county, who held him under a judgment and sentence rendered by a justice of the peace of said county.

Tried before the Hon. Thos. M. Arrington. Held: on the ground that the property was perishable and liable to waste and destruction in being held. This motion was resisted and overruled. Finally, the plaintiff, on the 11th of August, 1892, gave to one Hal.

Tried before the Hon. Jno. P. Hubbard. This action was brought by Harmon & Son, suing as a partnership, against J. E. Pickett and W. D. Siler, the latter being sued as executor of the last will and testament of Mrs. D. N. Pickett, the deceased wife of said J. F. Pickett; and was commenced on the 3d September, 1889.

Tried before the Hon. James B. Head. This action was brought by the Johnson Wall Paper Company, a private corporation, against J. A. Osborn; was commenced in a justice’s court, on the 3d June, 1891, and sought to enforce a statutory lien on certain property belonging to the defendant, which was particularly described, for work done on it and materials furnished by plaintiff as an original contractor.

Tried before the Hon. John H. Disque. This action was brought by O. T. Cunningham against the appellant corporation, to recover damages for the defendant’s failure to transmit to him, with proper dispatch, a telegraphic message in reply to one which he had sent, by which delay he was prevented from reaching the bedside of his dying mother before her death.

Heard before tbe Hon. John A. Poster. Tbe facts in tbis cause were tbus stated by Haralson, J.: “Tbe bill in tbis case was filed by tbe appellant against tbe appellee, on tbe 2d of- January, 1890.

Tried before the Hon. John P. Hubbard. (Statement of facts by Haralson, J.) “The plaintiffs below, Grant and Richardson, sued the L. & N. Railroad Company for damages, ‘for the failure of defendant to convey safely and securely, and to deliver safely and without injury, 27 horses, the property of plaintiffs, and which were received by defendant as a common carrier, to be delivered by the defendant to plaintiffs, at the city of Montgomery, in the State of Alabama, for a…

Tried before the Hon. John H. Disque. This action was brought by the appellees against the appellants; and sought to recover damages for the alleged breach of a contract.

Tried before the Hon. H. A. Sharpe. This is an action by the appellee, ¥m. E. Bichie, against the Alabama Great Southern Bailroad Company to recover damages for personal injuries to plaintiff. The ground of the complaint, the negligence alleged, and the facts necessary to a full understanding of the decision are sufficiently stated in the opinion.

Tried before the Hon. W. W. 'Wilkerson. This was an action brought by the appellee, W. L. Allen, against the appellant, the Birmingham Railway & Electric Company, to recover damages for personal injuries to the plaintiff, alleged to have been caused by the negligence of the defendant.- The complaint as originally filed contained but one count, which was in the following language: “The plaintiff claims of the defendant fifteen thousand dollars for that heretofore on to-wit:…

Tried before the Hon. S. H. Sprott. On August 30, 1890, A. B. Earquhar & Son recovered a judgment in an action of trover, against I. and A. I. Seymour and W. S. Metcalf. On the 26th September, 1890, under section 2870 of the Code, the defendants in said trover suit made an application in writing for a re-hearing and for supersedeas of said judgment to the Hon. S. H. Sprott, judge of the 6th judicial circuit. This application was made in vacation.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on January 8, 1892, by the Louisiana National Bank against the Birmingham Trust & Savings Company, and W. 0. Ward, as administrator of the estate of John B. Boddie, deceased. On April 25, 1889,John B. Boddie, a resident of Birmingham, Alabama, borrowed $25,000, from the Louisiana National Bank, a corporation regularly organized under the National Banking laws, and having its place of residence in !

Tried before the Hon. John B. Tally. This was an action brought by the appellee, a corporation, against the appellant, a foreign corporation; and sought to recover damages for the failure to deliver within a reasonable time certain live stock, and for injury to such live stock, which were delivered by the plaintiff to the defendant, as a common carrier, to be transported from Birmingham, Alabama, to Atlanta, Georgia.

Tried before tbe Hon. Leboy E. Bos. Tbe appellant, E. G. Stringer, brought tbe present action against tbe Alabama Mineral Eailroad Company and tbe Louisville & Nashville Eailroad Company, and sought to recover for personal injuries sustained by him, in being thrown from tbe track by an engine, which was running upon tbe Alabama Mineral Eailroad track. Tbe Alabama Mineral Eailroad Company was a branch of tbe Louisville & Nashville Eailroad Company’s sytem.

Heard before the Hon. Thos. Cobbs. The bill in this case was filed by the appellant, Mrs. E. L. Puller against the appellees; and sought to enjoin the sale of a portion of a lot which she had purchased, and to quiet her title thereto. The facts of the case are sufficiently stated in the opinion.

Appeals from the Circuit Court of Walker. Tried before the Hon. James B. Head. The causes of action in each of these two cases arose out of the same transaction, and being so intimately connected they were submitted and considered together.

Api’EAL-from Chancery Court of Lowndes. Heard before the Hon. John A. Poster. The bill in this case was filed by the American Freehold Land Mortgage Company against Laura A. McCall and her husband, T. B. McCall, on August 15, 1890; and prayed the foreclosure of a mortgage, executed by the respondents to the complainant.

Tried before the Hon. John P. Hubbard. Tbis was a statutory action of ejectment, brought by the appellee, Charlotte Thompson Rogers, against the appellant, to recover certain specifically described lands, and was commenced December 7, 1891. The principal facts of the case are sufficiently stated in the opinion.

Tried before the Hon. W. W. Wilkerson. This was an action brought by the appellant against the appellee corporation; and sought to recover damages for personal injuries, alleged to have been received by reason of the defendant’s negligence in not keeping its road-way in proper repair. Judgment for defendant.

Tried, before the Hon. James B. Head. This suit was brought by the appellant, John H. Jones, against the appellee, S. D. Weakley, as administrator of the estate of Nat Jenkins, deceased, for money had and received. The facts of the case are sufficiently stated in the opinion. The cause was tried by the court without the intervention of a jury; and upon the hearing of the evidence the court rendered judgment for the defendant.

Heard before Hon. S. K. McSpadden. . The bill in this case was filed by the appellee, James F. Brannon, against the appellants, the heirs of A. H. Smith, deceased, and prayed for the divestiture of title to certain property described therein out of the respondents, and the investing of such title into the complainant. The theory of the bill and the facts as disclosed in the record are sufficiently stated in tlie opinion.

Heard before tbe Hon. W. H. Simpson. Tbe bill in this case was filed by tbe appellee, William Moseley, against .the appellant, Mrs Martha A. Black, on Oct. 26,1891; and prayed that a foreclosure sale under a mortgage, at which the complainant became the purchaser, be ratified and confirmed, or at the option of the defendant, the mortgagor, that a resale be made.

Tried before tbe Hon. H. C. Speake. This action was brought by William T. Taylor against Frank A Howard, to recover damages for the alleged breach of a contract of sale; and was commenced on March 14,1887. The complaint as originally filed contained but one count, which was demurred to by the defendant, the demurrer containing six grounds. The court sustained the first, fourth and fifth grounds of this demurrer, and overruled the second, third and sixth grounds.

Heard before the Hon. John A. Postee. The bill in this case was filed by Bufus Cook, on November 10, 1890, against B. E. Bolling & Son; and sought to have reviewed and set aside a decree rendered in a suit brought by the said Bolling & Son, against W. H. Cook, Jefferson Cook, the complainant, and other defendants.

Tried before the Hon. W. W. Wilkerson. This was an action of assumpsit brought by the Wallis Tobacco Company against J. E. B. Jackson, and counted upon the common counts.

Heard before the Hon. O. J. Semmes. Tbe appellant is a Delaware corporation. Under a contract entered into with tbe Government of tbe United States it continued tbe dredging of Mobile Bay, and in January, 1891, moved certain parts of its machinery — sucb as tugboats, scows, &c. — to Mobile Bay.

Abpeal from Circuit Court of Montgomery. Tried before the Hon. John P. Hubbard.' The Alabama Midland Bailway Co. instituted proceedings in the Probate Court oft Montgomery County to condemn a certain strip of land, which was the property of Nancy E. H. Newton. From a judgment of the Probate Court dismissing the petition, the Bailway Co. appealed to the Circuit Court, where judgment was rendered in favor of the petitioner. The facts are sufficiently stated in the opinion.

Tried before the Hon. B. F. Cassady. This was .an action brought by the appellee, Jeff. Thomason, against the Richmond & Danville Railroad Company, and sought to recover damages for personal injuries alleged to have been inflicted upon the plaintiff by reason 'of the negligence of his co-employees. The facts of the case are sufficiently stated in the opinion.

Tried before Hon. John H. Disque. This was a common law action of ejectment, and was commenced May 20, 1890. Three demises are alleged in the declaration. In the first count recovery is sought on the demise of the State of Alabama; in the second, on the demise of Swann & Billups, trustees ; and in the third on the demise of the Alabama State Land Company.

<p>Appeal from Circuit Court of Jefferson.</p> <p>Tried before tbe Hon. James B. Head.</p> <p>Tbe facts of this case are sufficiently stated in tbe opinion.</p>

Tried before the Hon. B. F. Cassadt. This was an action brought by the appellee against the appellant, and counted on several promissory notes, made by the defendant for the rent of certain property which was, at the time of the making of said notes, the property of the plaintiff. The defendant, by sworn plea, denied that the plaintiff was entitled to the proceeds, and that plaintiff did not own the debt evidenced thereby.

Tried-before the Hon. W. W. Wilkerson. This was an action brought by the appellee, J. E. Byars, against the appellant, D. F. Myers; and sought to recover $1000.00, which was alleged to be due the plaintiff. The complaint contained only the;common counts.

Heard before the Hón. H. A. Sharpe. This is an appeal from a judgment rendered in the City Court of Birmingham quashing an execution issued on a forfeited replevy bond. The bond was given by Yerona Rich, with Herman Lowenthal and Moses Lowenthal as her sureties, to retain possession of certain personal property for the recovery of which Herman Rich had instituted an action of detinue against the said V erona Rich and Louis Hecht and Robert Hecht.

Tried before Hon. H. S. D. Mallory, Special Judge. The appellee, W. R. Lee, brought an action of detinue against Phillips & Parrish, warehousemen, to recover five bales of cotton. The cotton was taken in possession by the Sheriff under the writ of detinue, and the Commercial Bank of Selma, as provided by the statute, interposed its claim thereto. Issue was duly formed for the trial of the right of property, and upon the trial judgment was rendered for plaintiff.

' Heard before tbe Hon. John A. Foster. On July 6, 1891, Moses Bros., wbo at that time, were engaged in tbe banking business in Montgomery, being insolvent, made a general assignment for tbe benefit of all tbeir creditors. Among tbeir creditors was H. C. Moses, (one of tbe firm of Moses Bros.), as receiver, appointed by tbe Chancery Court of Montgomery county, in the case of Pauli v. Knox. To H. C. Moses, as receiver, Moses Bros, owed about $17,000.00.

Tried before the Hon. W. W. Wilkebson. This was an action brought by the appellee, J. T. Greenwood, against the appellant, the Bichmond & Danville Bail-road- Company, and the Savannah & Western Bailroad Company ; and sought to recover damages for personal injuries alleged to have been sustained by the plaintiff while a passenger on a train of the Bichmond & Danville Bailroad Company, by reason of a collision between two trains of the two defendants.

AppeaIj from tbe Chancery Court of Madison. Heard before the Hon. Thos. Cobbs. Tbe bill in this case was filed by tbe appellants, William E. Baldridge and Chas. H. Halsey, against tbe appellee, John Thomas Eason ; and sought to have tbe sheriff enjoined from tbe levy of an execution issued on a judgment recovered by said Eason against tbe firm of Baldridge, Murray & Halsey. Tbe bill alleges that tbe respondent, John Thomas Eason, sued tbe partnership of Baldridge, Murray &.

Tried before the Hon. J. M. Carmichael. This was an action brought by the appellee, W. J. Keith against V. & A. Meyer & Co., who resided- in the State of Louisiana. The complaint contained the common counts. The suit was commenced by an attachment, which was regularly issued upon affidavit made and bond given. This attachment was executed by serving a garnishment on Holloway & Gilchrist and C. R. Keith. The transcript contains no bill of exceptions.

Appear from tbe City Court of Anniston. Tried before tbe Hon. B. F. Cassady. Tbe appellant was tried and convicted before tbe Recorder of tbe city of Anniston for a violation of ordinance 317, wbicb ordinance was in tbe following language: “Affrays.— Any person wbo engages or participates in any figbt or affray, must, on conviction, be fined not less than one nor more than one hundred dollars.” An appeal was taken from the judgment of the Recorder to the City Court.

Tried before the Hon. H. C. Speake. This action was brought by the appellant, Dennis O’Kief, as administrator of John O’Kief, deceased, under the Employers’ Liability Act, to recover damages for the killing of plaintiff’s intestate, while in the employ of defendant, which was alleged to have been caused by the negligence of those under whose orders and control his intestate- was acting; and who, as his superiors in authority, had charge of the train, and to whose orders the…

Tried before tbe Hon. W. P. Chitwood. Tliis was a statutory action of ejectment brought by tbe appellants against tbe appellees; and sought to recover lot No. 215 in tbe town of Florence, Alabama. Tbe plaintiffs sue as heirs of J. J Hanna, deceased, and tbe defendants constitute tbe firm of J. B. White & Go.

<p>Appeal from the District Court of Lauderdale.</p> <p>Tried before the Hon. W. P. Chitwood.</p>

Tried before the Hon. John P. Hubbard. This action was brought by the appellee, Jennie A. Carey, against the Capital City Water Company to recover, as money had and received, the amount paid by the plaintiff in settlement of a bill held by the defendant against the plaintiff for water consumed by her. The cause was tried by the court without the intervention of a jury. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. James B. Head. ' This action was brought by the appellants against the appellees; and sought to recover under a written contract for work and labor done. The suit was for $12,000, and judgment was recovered by the plaintiff for $321.59. The plaintiffs prosecute this appeal, and assign as error the rulings of the court upon the pleadings.

Tried before tbe Hon. H. A. Sharpe. This was an action brought by the appellee, William Liddicoat, by his next friend, against the North Birmingham Eailway Company, to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant. The allegations of the complaint and the facts, as disclosed by the record, are sufficiently stated in the opinion.

Tried before tbe Hon. S. H. Sprott. Tbis is an action to recover damages for tbe killing of a Galloway cow, and was brought by tbe appellant, E. S. Moody, against tbe appellee corporation. Tbis is tbe second appeal. — 90 Ala. 46. After tbe reversal of tbe cause, tbe second trial in tbe Circuit Court resulted in a judgment for defendant.

Heard before the Hon. Thos. Cobbs. • On March 29,1889, Charles M. Maxwell and J. W. Sanders filed their bill of complaint against C. C. Baker ; and sought to have rescinded a contract of sale, entered into between the complainants and the, respondent on June 21, 1889.

Tried before tlie Hon. James B. Head. This was an action of assumpsit brought by the Birmingham National Bank against B. J. Terry, to recover the amount alleged to be due upon a promissory note; and was commenced on July 27, 1889. This is the second appeal in this case. — 93 Ala. 599. As is stated in the opinion, after the reversal of the cause, the trial was had on issue joined on the plea of set-off.

Tried before the Hon. B. F. Cassady. This was an action brought by A. P. Agee, as receiver of the Anniston Savings & Deposit Company, against the Oxanna Building Association; and counted upon several promissory notes. The transcript contains no bill of exceptions; and the judgment entry, so far as it bears upon the decision rendered in this court, is sufficiently stated in the opinion.

Tried before the Hon. James B. Head. This was a statutory action of detinue, brought by the appellant, J. C. Kyle, against the appellee, J. C. Swem, on December 9, 1889, to recover certain personal property, alleged to be in the possession of the defendant.

Tried before tlie Hon. J. M. Carmichael. This was an action of assumpsit, brought by the appellee, the National Fertilizer Co., against the appellants; and counted on a promissory note, alleged to have been signed by all the defendants. The return of the sheriff showed that the summons and complaint had been served upon all of the defendants, except Z. McKinney.

8. H. Sprott. This action was brought by the appellant, Hattie O. Zealy, against the Birmingham Bailway & Electric Company, on August 2, 1890, to recover damages for personal injuries, alleged to have been sustained by the plaintiff by reason of the negligence of the Birmingham Union Bailway Company, or its employes.

Heard before the Hon. Thos. Cobbs. The bill in this case was filed on July 19, 1889, by Mrs. Octavia A. Otey and her children, against Charles S. McOalley and others ; and sought to have a threatened sale of land, under a power contained in a mortgage, enjoined, and to be allowed to redeem said property from under the mortgage.

Heard before the Hon. B. F. Cassauy. The bill in this case was filed by A. P. Agee, as the receiver of the Anniston Savings & Deposit Company, against the Oxanna Building Association and H. S. Jewell; and sought to have a lien énforced upon a certain lot for the payment of the purchase-money of the same.

<p> Action against a Railroad Company by Employe,for Damages on Account of Personal Injuries. </p> <p>1. Opinion of experienced railroadman; competent evidence. — A witness, who is shown to have been “railroading for ten years,” is-competent to testify whether “a man with one arm would be as good and competent abrakeman, as a man with two.”</p> <p>2. Calculation of damages; what to be considered. — When, in an action to recover damage's for personal injuries, the evidence shows the age of the plaintiff, his expectancy of life according to the mortality tables, the rate of his earnings before the injury, his subsequent disability to labor, his helpless condition, and suffering endured, all of these facts must be considered by the jury in the calculation of the damages to be awarded; and charges which are predicated upon facts disclosed in annuity tables introduced in evidence, to the exclusion of these other facts of the case, are properly refused.-</p> <p>3. Improper charges. — It is improper to give to the jury charges predicated upon the ignorance and incapacity of jurymen to make a calculation or render a verdict in the particular case.</p> <p>4. Charges to the jury when there, is conflict in the evidence. — When there is conflict in the evidence, as to whether the car that collided with the car that inflicted the injury upon the plaintiff was put upon the track by means of a “running switch” or “drop switch,” it is improper to charge the jury that a “running switch” was not made.</p> <p>5. Custom o/ well regulated roads no excuse for violation of defendant’s rules. — When the rules of a defendant railroad forbid the making of “running switches,” it is no excuse for, and does not relieve the said company from, negligence imputed, when injury results from the violation of such rules, that other well regulated roads are in the habit of making running switches.</p> <p>6. Charges; abstract and misleading. — -Charges instructing the jury that the plaintiff should not be allowed compensation for loss of time while confined to his bed, after the injury complained of, giving no reason why such compensation should not be awarded, are properly refused as abstract; and if their purpose was to raise the question of the plaintiff’s minority at the time of the injury, the charges are misleading, in that, the principle of law intended to be invoked was not disclosed by the charges.</p> <p>7. Charges to the jury— Charges that give undue prominence to certain portions of the evidence, and ignore other material.facts, are properly refused.</p> <p>8. Charges ; exacting too high a degree of proof . — To entitle the plaintiff in a civil action to recover, he must make out his case to the reasonable satisfaction of the jury; and charges, instructing the jury that if they “are in doubt and uncertainty as to whether or not the plaintiff has proven the material allegations of his complaint, they must find for the defendant, are properly refused, as exacting too high a degree of proof.</p>

Heard before the Hon. John H. Disque. This is an appeal from the judgment of the City Court of Gadsden overruling a motion to quash an execution issued on a forfeited replevy bond. The appellee, D. T. Hamner, brought an action for detinue against one J. A. Powers, for certain described property.

<p>Appeal from tbe Chancery Court of Crensbaw.</p> <p>Heard before the Hon. John A. Foster.</p> <p>Tbe facts of this case are sufficiently stated in tbe opinion.</p> <p>cited Strauss v. Meertief 64 Ala. 299; Gilbreath v. Jones, 66 Ala. 129 ; Tankersley v. Pettis, 71 Ala. 179; McCall v. Jones, 72 Ala. 368.</p>

' Heard before tbe Hon. Thomas M. Arrington. The bill in this case was filed by the appellant, Sophronia E. Allen, -against Thomas McCullough and others, and prayed for the cancellation of certain conveyances,' executed by the complainant and the respondent, Thomas McCullough. The facts of the case are sufficiently stated in the opinion. On the hearing of the cause, the chancellor decreed that the complainant was not entitled to the relief prayed for, and dismissed her bill.

.Appeal from the Chancery Court of Jackson. Heard before the Hon. S. K. McSpadden. The bill in this case was filed by Matilda J. Stricklin against the appellants on December 31,1892, and sought the enforcement of a vendor’s lien, to compel the payment of a note which had been given for a part of the purchase-money of certain lands.

Tried before Hon. S. H. Sprott. The proceedings in this case arose out of an attachment suit brought by the appellants, Lienkauff & Strauss and Katz & Barnett, against the appellee, The Tuskaloosa Sale & Advancing Company. The appeal in this casé is. prosecuted by the plaintiffs in the lower court, who assign as error the refusal of the court to render a summary judgment against the sheriff, for failing to make the money on the judgment recovered by them.

Tried before the Hon. H. A. Sharpe. This action was brought by the appellee against the appellants, to recover the amount alleged to be due upon a contract for the building of a house by the plaintiff for- the defendants; and sought to fasten a mechanic’s lien on the house for the amount alleged to be due under said contract.

Heard before tbe Hon. W. H. Simpson. Tbe bill in tbis case was filed on March 5, 1890, by tbe appellees, Bamberger, Bloom & Co., against Herbert Cartwright,' I. Pinkus and S. P. Byan, ,the sheriff who levied tbe attachment.