PATTERSON v. ALLEN. (Supreme Court of Alabama. June 23, 1900.) Appeal from city court of Birmingham; Charles A. Senn, Judge. Lane & White, for appellant. Rudulph & Huddleston and W. T. Hill, for appellee. This was an action, brought by the appellant against the appellee, to recover damages for personal injuries alleged to have been caused by a stairway in a house owned by the defendant falling on the plaintiff, which was alleged to have been occasioned by the neglect of the defendant in keeping his house in proper repair. There was a judgment in favor of the plaintiff, and a motion made for a new trial, which motion was granted. The plaintiff prosecutes the present appeal from the judgment granting the new trial, the rendition of which judgment is assigned as error. Judgment affirmed. Opinion by Sharpe, J.

PERRY et al. v. IVY COAL & COKE CO. (Supreme Court of Alabama. June 23, 1900.) Appeal from circuit court, Jefferson county; A. A. Coleman, Judge. Tillman & Campbell, for appellants. John J. Moore, for appellee. This was an action of assumpsit, brought by the Ivy Coal & Coke Company against A. J. and H. W. Perry. On the trial of the case there was judgment in favor of the plaintiff. The defendants appeal. The judgment was reversed, and the cause remanded. Opinion by Dowdell, J.

PINKSTON v. STATE. (Supreme Court of Alabama. May 11, 1900.) Appeal from city court of Montgomery; A. D. Sayre, Judge. Chas. G. Brown, Atty. Gen., for the State. The appellant was indicted, tried, and convicted for an assault with intent to murder, and sentenced to the penitentiary for five years. The judgment is affirmed. Opinion per curiam.

RUSHING et al. v. McCLENDON et al. (Supreme Court of Alabama. June 5, 1900.) Appeal from chancery court, Coffee county; William L. Parks, Judge. Carmichael & Brannen and J. F. Sanders, for appellants. A. A. Wiley and G. E. McGowen, for appellees. Appeal dismissed, on motion of appellants.

SCHLOSS et al. v. SCHLOSS. (Supreme Court of Alabama. April 18, 1900.) Appeal from circuit court, Barbour county; A. A. Evans, Judge. G. L. Comer, A. H. Merrill, and P. B. McKenzie, for appellants. S. H. Dent, Jr., for appellee. On December 29, 1896, appellants sued out an attachment in the circuit court of Barbour county, Ala., at Eufaula, against J. Oppenheimer. Said attachment was duly levied on said December 29, 1896, by the sheriff of Barbour county, on certain goods, wares, and merchandise as, the property of said Oppenheimer, the defendant in said attachment suit. After said attachment was so levied, H. Schloss, the appellee, made claim to the property levied on as required by law, and on the trial of said claim the issue was decided in favor of said claimant. Said claimant claimed the property levied on under a deed of assignment executed to him by said Oppenheimer, the defendant in attachment. Said Oppenheimer was wholly insolvent at the time. On the trial of the issue formed in the claim suit, judgment was rendered in favor of the claimant, from which the plaintiffs appeal. The question presented on this appeal, on the alleged invalidity of the said deed of assignment, on substantially the same evidence, was presented and decided adversely to the appellants in the case of Inman v. Schloss, 25 South. 739; and on the authority of that case the judgment of the court below is affirmed. Opinion by Haralson, J.

Ex parte SHANNON. (Supreme Court of Alabama. April 5, 1900.) John E. Mitchell, for petitioner. This was an application to this court for mandamus to the judge of the circuit court of Mobile county. Mandamus denied. Opinion by McClellan, C. J.

SLEDGE v. STATE. (Supreme Court of Alabama. May 31, 1900.) Appeal from city court of Montgomery; A. D. Sayre, Judge. Chas. G. Brown, Atty. Gen., for the State. The appellant was indicted, tried, and convicted for murder in the first degree, and sentenced to the penitentiary for life. The judgment is affirmed. Opinion by Sharpe, J.

STARKEY v. STATE. (Supreme Court of Alabama. April 12, 1900.) Appeal from circuit court, Hale county; John Moore, Judge. J. T. Collins, Jr., for appellant. Chas. G. Brown, Atty. Gen., for the State. The appellant was indicted, tried, and convicted for grand larceny. Judgment affirmed. Opinion by Haralson, J.

STATE v. HUMPHREY. (Supreme Court of Alabama. May 8, 1900.) Appeal from probate court, Cullman county; S. L. Fuller, Judge. Chas. G. Brown, for the State. Brown & Curtis and George H. Parker, for appellee. The appeal in this case is prosecuted from an order of the probate judge of Cullman county granting bail to the appellee on an application for mandamus. Judgment is affirmed. Opinion by McClellan, C. J.

STEWART v. BRITISH & AMERICAN MORTG. CO., Limited. (Supreme Court of Alabama. April 12, 1900.) Appeal from circuit court, Pickens county; S. H. Sprott, Judge. D. C. Hodo, for appellant. M. B. Curry, for appellee. This was an action of trover brought by the appellee against the appellant. From a judgment in favor of the plaintiff, the defendant appeals. The judgment is affirmed, on the authority of Nelson v. Sanders (Ala.) 26 South. 518. Opinion by Tyson, J.

STOVALL et al. v. PATTERSON et al. (Supreme Court of Alabama. June 23, 1900.) Appeal from circuit court, Coosa county; N. D. Denson, Judge. D. H. Riddle, for appellants. L. E. Parson and Gordon Macdonald, for appellees. This was a suit brought by the appellees, Patterson & Evans, against Stovall, Calloway & Co., and counted upon an attachment bond; the plaintiffs seeking to recover for wrongfully and vexatiously suing out an attachment against them by the defendants. There was judgment in favor of the plaintiffs. The defendants appeal. The judgment is affirmed. Opinion by Haralson, J.

STOVALL et al. v. PATTERSON et al. (Supreme Court of Alabama. June 23, 1900.) Appeal from circuit_court, Coosa county; N. D. Denson, Judge. D. H. Riddle, for appellants. L. E. Parson and Gordon Macdonald, for appellees. This was a suit brought by the appellees, Patterson & Evans, against W. W. Stovall & Bro., and counted upon an attachment bond; the plaintiffs seeking to recover for wrongfully and vexatiously suing out an attachment against them by the defendants. There was judgment in favor of the plaintiffs. The defendants appeal. The judgment is affirmed. Opinion by Haralson, J.

TAYLOR et al. v. DWYER. (Supreme Court of Alabama. July 6, 1900.) Appeal from chancery court, Montgomery_county; W. L. Parks, Chancellor. Jno. G. Winter and Jack Thorington, for appellant. De Yampert_and Hausman, for appellee. In the case of Henrietta J. Dwyer against Frank G. Taylor and others, pending in the chancery court of Montgomery, in which a receiver was appointed, the receiver filed a petition, addressed to the register of the chancery court of Montgomery, asking for an order to sell the property belonging to the defendant Frank G. Taylor. Upon the hearing of this petition the register granted the order. An appeal was taken from the order of the register granting the order for sale, and upon the hearing of the appeal the chancellor dismissed the appeal and confirmed the order of the register for the sale of the personal property by the receiver. From this decree of the chancellor the present appeal is prosecuted. The order of sale by the register was made under rule 115 of chancery practice (Code 1896, p. 1228), and the appeal taken from said order of the chancellor was taken under said rule. It appears from the record that there was a hearing on the petition for the sale of the property before the register, and that evidence was at such hearing offered and considered by the register, which he decided sufficient to authorize the order of sale made by him; and so it appears in the opinion of the chancellor, which is copied in the record, that on the appeal before him he had sufficient evidence to warrant him in concluding that the order of sale made by the register was proper. The record here does not purport to set out the evidence had either before the register or chancellor. On the present appeal the court declares as follows: "In this state of the case we cannot say that there is an error in the decree of the chancellor, appealed from, which confirms the order of sale made by the register. Before there can be a reversal of a decree by the chancellor, error in its rendition must be affirmatively shown by the record. Such is not the case here, and the decree of the chancellor must be affirmed." The decree is affirmed. Opinion by Dowdell, J.

UNITED STATES LIFE INS. CO. v. LESSER. (Supreme Court of Alabama. June 5, 1900.) Appeal from city court of Birmingham; H. A. Sharpe, Judge. Hewitt, Walker & Porter, for appellant. Lane & White and Richard H. Fries, for appellee. The appellee, Emil Lesser, brought this action against the United States Life Insurance Company to recover the amount of a policy of life insurance issued by the plaintiff, insuring the life of one Henry Silberman. From a judgment in favor of the plaintiff, the defendant appeals. The judgment is affirmed, on the authority of Insurance Co. v. Lesser (present term) 28 South. 646. Opinion per curiam.

WILLIAMS v. STATE. (Supreme Court of Alabama. May 17, 1900.) Appeal from city court of Montgomery; A. D. Sayre, Judge. Chas. G. Brown, Atty. Gen., for the State. The appellant was indicted, tried, and convicted for rape, and sentenced to the penitentiary for 10 years. The judgment is affirined. Opinion by Haralson, J.

WILSON v. COURT OF COUNTY COM'RS OF ELMORE COUNTY (two cases). (Supreme Court of Alabama. June 23, 1900.) Appeal from circuit_court, Elmore county; N. D. Denson, Judge. Watts, Troy & Caffey, for appellant. J. M. Fitzpatrick, for appellee. There were two cases bearing the same title, submitted together. These cases are two appeals

from judgments of the circuit court of Elmore county sustaining demurrers to and dismissing petitions by appellant for writs of mandamus, directed to the court of county commissioners of Elmore county and the members thereof, requiring them to make appropriations out of the general fund of the county to pay claims held and owned by appellant against the fine and forfeiture fund of the county. In the first case relief is sought under "An act to regulate the fine and forfeiture fund of Elmore county, and to better provide for the payment of claims against the same," approved February 18, 1895 (Acts 1894-95, p. 731); and in the second, under "An act to regulate the fine and forfeiture fund of Elmore county, and to better provide for the payment of claims registered against said fund by appropriating from the general fund to the fine and forfeiture fund money to pay registered claims against said fine and forfeiture fund, and to provide for the payment of fines assessed or forfeitures rendered by a competent court in fine and forfeiture script of said county," approved January 30, 1897 (Acts 1896-97, p. 471). The allegations of the petitions are full and specific enough to entitle petitioner to relief under the acts, if they are valid. To each of these petitions there was a demurrer interposed by the respondents, upon the ground that the acts of the legislature in question were unconstitutional. The court sustained the demurrer in each of the cases and rendered judgments in favor of the respondents in each case. the judgments in each case the present appeals were prosecuted. Each of the judgments is affirmed, on the authority of Pierce v. Commissioners, 117 Ala. 569, 23 South. 790. Opinion by Tyson, J.

From

WORNUM V. GAY et al. (Supreme Court of Alabama. June 23, 1900.) Appeal from city court of Montgomery; A. D. Sayre, Judge. Ray Rushton, for appellant. Fred. S. Ball, for appellees. This was an action of assumpsit, brought by the appellees, Gay, Hardie & Co., against Charles D. Wornum, and sought to recover an amount due for goods, wares, and merchandise alleged to have been sold by the plaintiff to the defendant. There was judgment in favor of the plaintiffs. The defendant appeals. Judgment affirmed. Opinion by Haralson, J.

(104 La.)

CHARLTON v. McCONNELL. (No. 13,743.) (Supreme Court of Louisiana. Dec. 17, 1900.) Action by W. C. Charlton against L. McConnell. Judgment for plaintiff. Application of defendant for writs of certiorari or review to the court of appeals. Denied. Louis P. Bryant, for petitioner.

NICHOLLS, C. J. The judgment which relator seeks to have reversed was rendered by the court of appeals for the parish of Orleans, affirming, on appeal, a judgment which had been rendered in the First city court for the parish of Orleans against relator, defendant in a suit in that court. Under article 143 of the constitution of 1898, appeals from the First city court to the court of appeals for the parish of Orleans are tried de novo, and the judges of the latter court are authorized to decide the cases immediately after trial and without written opinions. No written opinion was given in the court of appeals in this case. It does not appear that the evidence in the case was either taken down in writing or was asked to be taken down, nor does it appear that relator sought to have the judge who rendered the judgment make or file findings either of law or fact. suming that it would have been the duty of that judge, on request to that effect, to have made findings of fact, and that we could have required him to do this on his refusal, we will

As

not exercise this right when the first attempt made to have such findings made is on application to this court for a writ of review. Relator's application herein is refused.

et al.

ARMSTRONG et al. v. NABERS (Supreme Court of Mississippi. Dec. 17, 1900.) Appeal from chancery court, Monroe county; H. L. Muldrow, Chancellor. Suit by Cindie Nabers and others against Granville Armstrong and others to quiet title and for possession of real property. Appellees, complainants in the court below, filed their bill in chancery against appellants, defendants below, to cancel the claim set up by defendants to certain lands described in the bill, and to confirm and quiet complainants' title to same, and also for a writ of assistance to put complainants in possession. The bill alleges that complainants are the owners in fee of the land in controversy; that Drewry Armstrong, late of Monroe county, Miss., now deceased, purchased said lands from Stephen Cooke and S. H. Buckingham on April 23, 1846, and was the owner in fee and in possession of said lands at the time of his death; that prior to his death, on July 30, 1866, the said Drewry Armstrong made and executed his last will and testament, which was, after his death, duly probated and recorded; that it was through this will that complainants claimed title; that by the provisions of said will said Drewry Armstrong directed that Lucretia Armstrong, who was then the widow of his deceased son, T. B. Armstrong (the mother of defendants), should be permitted to remain on said lands as her home for 10 years free of charge, and so much longer as his executors might see proper; that after the expiration of the 10 years the executor, under the direction given under the will, permitted the said Lucretia Armstrong and family to occupy the lands for a home until the 20th day of May, 1897, when the said Lucretia Armstrong died; that during all these years, while the said Lucretia Armstrong and family occupied these lands for a home by the sufferance of the executors and heirs, she held the lands as tenant at will under the last will and testament of Drewry Armstrong, and not otherwise, and never asserted any other title to said lands; that Lucretia Armstrong left surviving her the defendants, and left them in possession of the lands when she died; that soon after her death the heirs and devisees under the last will and testament of Drewry Armstrong, through their authorized agent, demanded of the defendants the possession of said lands; that defendants refused to give up said lands or to pay rent on same. Complainants aver in their bill that defendants are now asserting some claim and title themselves to said lands. The will of Drewry Armstrong was made an exhibit to the bill. Defendants, in their answer to complainant's bill, deny that Drewry Armstrong died seised and possessed of the lands described in the bill. They admit the will, but deny that the lands in controversy were bequeathed to complainants, as alleged in the bill, and deny that complainants are owners in fee of the said lands. They deny that they never asserted title in their mother's lifetime, and assert that they owned and claimed same as their home from 1866 to May, 1897, and until this day. They aver that they refused to pay rent, and held adversely for more than 10 years before Lucretia Armstrong's death, or before the filing of the bill. There was a decree in the court below canceling the claim of defendants, and confirming and establishing the title of complainants to the lands; and a writ of assistance issued to put complainants in possession. From this decree defendants appeal. Affirmed. Walker &

Tubb, for appellants. W. H. Clifton, for appellees.

TERRAL, J. The respondents below, appellants here, claimed title to the tract of land in litigation by 10 years' adverse possession. The mother of the respondents died in 1897, and had then been in possession of the land a great number of years,-more than 10 years. But the notice of her claim of adverse possession on the part of the plaintiffs below, the holders of the legal or paper title, is so indefinite and uncertain, if such claim was known to any of them, that we think the decision of the chancellor must be approved; and we affirm the same.

FEDERICK et al. v. LOUISVILLE & N. R. CO. (Supreme Court of Mississippi. May 14, 1900.) Appeal from circuit court, Jackson county; T. A. Wood, Judge. Action by W. E. Federick and others against the Louisville & Nashville Railroad Company. From a judgment in favor of defendant, plaintiffs appeal. Affirmed. Brame & Brame, for appellants. Gregory L Smith, for appellee.

TERRAL, J. This is a joint action of ejectment by 15 tenants in common against the Louisville & Nashville Railroad Company, for a strip of land claimed by the defendant company as a part of its depot grounds at Scranton. There was no evidence given or offered as to the title of 14 of the co-tenants, and the interest of the other one, W. E. Federick, was, upon the evidence, uncertain and indistinct. The company claimed title by 10 years' adverse possession, and upon that issue had a verdict. We see no ground upon which the judgment can be disturbed, and it is affirmed.

STATE v. YAZOO & M. V. R. CO. et al. (Supreme Court of Mississippi. May 7, 1900.) Appeal from circuit court, Coahoma county; F. A. Montgomery, Judge. "Not to be officially reported." John M. Simonton, land commissioner for the state of Mississippi, for the use of said state, sued out a writ of replevin against the Yazoo & Mississippi Valley Railroad Company and John Evans for 12,000 oak barrel staves, valued at $600. A declaration was also filed by said land commissioner, for the use of the state, against said railroad company and the said Evans to recover of them $200 damages for the wrongful taking and detention of said staves. The declaration alleges that the said state was seised and possessed of certain lands in Tallahatchie county; that defendant John Evans, with a great number of employés and laborers under his control, went upon said lands, and cut, without authority or consent of said state, a great number of valuable oak trees, and converted the same into oak barrel staves; that said staves were placed by said Evans on the right of way of the said railroad company. To plaintiff's declaration the defendants filed two pleas,-one of not guilty, and a plea in abatement. To the plea in abatement, plaintiff demurred. Plaintiff also made a motion to strike the said pleas of defendant from the files, which motions were overruled. The plea to the merits was with drawn, and plaintiff's demurrer to the plea in abatement was then overruled; and, issue having been joined upon the declaration and plea in abatement, a trial by jury was had, which resulted in a verdict and judgment for defendants; and the state appeals. Reversed. Butt & Butt, for the State. Mayes & Harris, for appellees.

CALHOON, J. On the case of State v. Fitzgerald, 76 Miss. 502, 24 South. 872, this case is reversed and remanded.