Volume 141 — Alabama Reports

Tried before the Hon. J. W. Mabet. The appellant in this case, Pearl Scott, was jointly indicted with Florence Leftwich, Clay Hillman and William Briggs, for the murder of John Scully. The defendant, William Briggs, demanded a severance, which Avas granted, and Pearl Scott, Florence Leftwich and Olay Hillman Avere jointly tided. Upon the trial, the jury rendered a verdict of “not guilty” as to Florence Leftwich and Clay Hillman.

Tried before the Hon. John H. Disque. The appellant in this ease, Henry Johnson, was indicted and tried for murder, was convicted of murder in the first degree and sentenced to be hanged. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. The term of the city court ended on Friday before the 3d Saturday in December, and the defendant being tried on said 3d Saturday, sucli tidal was void.

Tried before the Hon. John Mooee. The appellant in this case, John Gater, was indicted and tried for the murder of William Whitehead, was convicted of murder in the first degree, and sentenced to he hanged. The minutes of the terms of the court at which the indictment against the defendant was preferred, contained the following caption: “State of Alabama, Perry County. Circuit Court, Fall Term, 1903.

Clair. Tried before the Hon. John Pelham. The appellant in this case, Buck Ferguson, was indicted for the murder of Will Andrews. I-Ie was tried and convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary for two years. From this judgment he appealed to the Supreme Court, where said judgment was reversed, and the cause was remanded.

Tried before the Hon. A. A. Evans. The appellant in this case, Alex Etheridge, was tried and convicted of manslaughter in the first degree, under an indictment which was in words and figures as follows : “The grand jury of said county charge that before the finding of this indictment, Alex Etheridge, unlawfully and with malice, but without deliberation or premeditation, killed Lewis Calhoun by cutting him with a knife, against the peace and dignity of the State of Alabama.”…

Tried before the Hon. Trios. W. Coleman, Jr. The indictment under which the defendant was convicted in the first degree and sentenced to be hanged, was in the following words: .“The grand jury of said county charges that before the finding of this indictment that Andrew Burton unlawfully, and with malice aforethought, killed Will Richardson, alias William Richardson, by shooting him with a pistol, against the peace and dignity of the state of Alabama.” The defendant demurred…

<p> Indictment for Murder. </p> <p>1. Appeal in criminal case; does not lie from sentence of death.— The statute relating to appeals hy defendants in criminal cases (Code §4313), authorizes an appeal only from a Judgment of conviction; and an appeal is not authorized to be taken from a sentence of death pronounced by the court under 'the statute authorizing the re-sentence of one, who by reason of his flight, had not been executed, pursuant to a previous sentence of death (Code .§ 5439); and an appeal from such sentence will be dismissed.</p>

Tried before the Hen. A. H. Alston. The apeallant in this cause, Larkin Johnson, was indicted and tried for the murder of one John Lawley, was contacted of murder in the first degree, and sentenced to be hanged.

Ai’Real. from the Circuit Court of Sumter. Tried before tlie Hon. Henry B. Foster, Special J udge. The appellant in this case, Bob Scott, was indicted and tried for the murder of Robert H. Seymour, was convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary for four years. The facts of the case relating to’ the rulings of the trial court, which are reviewed on the present appeal, are sufficiently stated, in the opinion.

Tried before the Hon. John P. Hubbard. The appellant in this case, John C. Kirkland, was indicted and tried for the murder of Lee Edmondson, was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for 12 years.

Titled before the Hon. John Mooee. The appellant in this case, Richard Gilmore, was indicted for murder, was convicted of manslaughter in the first degree, and sentenced to 3 years in prison. The facts of the case necessary to an understanding of the decision, and the present appeal, are sufficiently stated in the opinion.

Tried before the Hon. William H. Ti-iomas. The appellant in this case, Toney Jones, was indicted and tiled for the murder of Warren Jones, was convicted of murder in the first degree, and sentenced to* be hanged.

Appeal. from' tbe City Court of Anniston. Tried before the Hon. Thomas W. Coleman,, Je. The appellant in this case, George Smith, was indicted, tried and convicted for assault with intent to murder- Inasmuch as the only questions presented for review on the present appeal arise from the court’s refusal to give the several charges requested by the defendant, it is, unnecessary to set out the facts of the case in detail.

Arpead from the Circuit Court of Clarke County. Tried before the Hon. John C. Anderson. The appellant in this case, Sam Davis, Avas indicted, tried and convicted for arson in Avilfully setting fire to and burning a divelling house of one John Guy, and Avas sentenced to the penitentiary for ten years. The indictment contained two' counts.

Tried before the lion. William H. Thomas. The appellant in this case was indicted, tried and convicted for larceny of a cow, the personal property of Jim Evans, and was sentenced to the penitentiary for 4 years. The facts in the case are sufficiently stated in the opinion. cited Crane v.'State, 111 Ala. 45; Buchanan v. State, 109 Ala. 7. cited Ross v. The State, 74 Ala. 532; Smith v. The State, 59 Ala. 104; Malachi v. The State, 89 Ala. 134; Bonner v. The State, 107 Ala. 97.

Tried before the Hon. John M. Loflin. The appellant in this case, Lige Pruett, was prosecuted and convicted for living in adultery. The prosecution was commenced by an affidavit made before R. A. King, and in said affidavit it is recited that it was made before “R. A. King, Clerk of the Circuit Court in and for said county,” referring to Coffee county. The jurat of the affidavit was signed “R. A. King” without any descriptive, words.

Tried before the Hon. P. N. Hickman. The appellant in this case, George Gainey, was prosecuted and convicted for carrying a pistol concealed about his person. The facts of the case, necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.

Tried, before the Hon. William H. Thomas. The appellant in this case, William McCormick, was indicted, tried and convicted for burglary, and sentenced to the penitentiary for five years.

Tried before the Hon. D. K. Miller. The appellant in this case was indicted, tried and convicted tor carrying a pistol concealed about his person.

Gadsden. Tried before the Hon. John IT. Disque. The appellant in this case, Ben Davis, Avas indicted, tried and convicted for letting a hog rnn at large in a stock laiv district in the county of EtoAvah. The indictment as preferred contained tAvo counts. The defendant’s demurrer to the 1st count Avas sustained.

Tried before the Hon. Ed B. Almon. The appellant in this case was tried and convicted under an indictment, the first count of which was as follows: “The grand jury of said county charge that before the finding of this indictment, John L. Mitchell sold vinous, spirituous, or malt, liquors without a license and contrary to law.” The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. -The evidence…

Tried before the Hon. P. N. Hickman. The appellant in this case was prosecuted and convicted for unlawfully and wantonly killing or injuring - an ox, the property of one T. E. Hobbs. On the trial of the case, said T. E. Hobbs testified that he owned the ox in question, and that he and one Burke, who was with him, saw the- defendant shoot said ox with a gun two or three times.

Tried before the Hon. S. L. Fuller. The appellant in this case, John W. Grant, was prosecuted and convicted for defamation of character, and was fined $50.

Tried before the Hon. T. L. Bosom. The appellant in this suit, Bud McQueen, was tried and convicted of failure to perforin a contract with a surety who had confessed a judgment for him upon his conviction for a misdemeanor. Upon the state’s offering to- amend the affidavit under which the prosecution was commenced, as is shown in the opinion, the defendant objected. The court overruled the objection, and the defendant excepted.

Tried before the Hon. John Peli-iam. The proceedings in this case were instituted by the tax commissioner of Shelby countjr before the court of county commissioners of said county, to raise the valuation of 23,818 acres of land owned by the Tennessee Coal, Iron & Railroad' Co., as assessed to said company by the tax assessor, because of an alleged undervaluation of said lands. The lands were assessed at a valuation of $71,455.00.

Tried before the Hon. J. A. Bilbro. The proceedings in this case were instituted by the tax commissioner of Marshall County, for the purpose of having ihe assessment of the appellant, J. P. Hooper, as to his personal property increased. The facts relating to the proceedings in the commissioner’s court and the appeal to the circuit court, and the pleadings in the circuit court are sufficiently shown in the opinion.

Heard before the Hon. H. T. Benton. The proceedings in this case Avere had upon a petition filed by one Columbus Toney, addressed to Hon. H. T. Benton, Judge of the Probate Court of Russell County, in which the petitioner avers that he was unlawfully restrained of his liberty under and by virtue of a warrant of arrest issued by the Judge of the County Court of Russell County, charging the petitioner with the offense of “violating a written contract,, and making a second…

Heard before the Hon. John C. Carmichael. The bill in this case was filed by the appellee; Edward O’.

Tried before the Hon. A. A. Coleman. This action was brought by the appellee, Spencer C. Tilson, against the appellant, the Sloss Iron & Steel Company, to. recover damages, for personal injuries.

Tried before the I-ion. A. IT. Alston. This action was brought by the appellant, A. M. Partridge, against the appellee, IT. A. Wilson, to recover statutory penalties, amounting to $400.00, for the failure of the defendant to enter satisfaction upon the margins of the record of two mortgages executed by the plaintiff to the defendant, after having been requested so to do in writing. The complaint contains three counts.

Api’bar from Chancery Court of Mobile. Heard before tbe I-Iou. Titos. H. Smith. The bill in .this» case was filed by the appellees against the appellant. The purpose of the bill and the averments of the bill as amended are sufficiently shown in the (¡pinion. The respondent, Byrd 0. Willis, demurred to the bill as amended upon the following grounds: “1.

Tried, before tlie Hon. O. J. Semmes. This action was brought by tilie appellee, Robert H. Bowman, against the Western Union Telegraph Company. Tlie complaint, as originally filed, contained three counts. The 1st count was in words and figures as follows: “1.

Tried before the Hon.' Wm. W. Wilkerson. This action was brought by the appellee, John S. Old-ham, against the Birmingham Rail way, Light & Power Company, to recover damages for personal injuries sustained by the plaintiff. The complaint contains eight counts. The 1st, 4th, 5th and (>tli counts charge the defendant with simple negligence, while the 3rd, 7th and' 8th counts charge the defendant witli wilfulness or wantonness.

Heard before the Hon. Thomas H. Smith. The bill in this case was filed by Hubbard Rudisill, as executor of the last will and testament of John C. Woodward, deceased, against Walter Griffith, a half brother of deceased, and who is not mentioned as the beneficiary under the will. John 0. Woodward died on or about the 1st day of December, 1902. His will wns admitted to probate and complainant qualified as executor thereunder on the 7th day of January, 1903.

Tried before the lion. N. I). Denson. This action was brought by the appellee, Lola Cunningham, as administratrix of the estate of Norman Cunningham, deceased, against the appellant, the E. E. Jackson Lumber Company, to recover damages for the alleged negligent killing of the plaintiff’s intestate. The complaint as originally filed, contained ' four counts.

Equity Court of Walker. Tried before tlie Lion. Peyton Noevell. Tliis action was brought by the appellee, J. A. Thorn-hill, against the Kansas City, Memphis & Birmingham K. It. Company, and seeks to recover f10,000.00 damages for personal injuries alleged to have been sustained by the plaintiff, and to have resulted from the negligence of the defendant, or of its employees. As originally filed the complaint contained three counts, numbered 1, 2 and 3.

Tried before the Hon. Osceola Kyle. This action was brought by the appeelle, J. F. Bean, against the appellant, L. M. Lynn, and was instituted on March 15th, 1902.

Tried before the Horn Wm. W. Wilkerson. This action was brought by the appellee, W. A. Yan-cey, against the appellant, the Southern Railway Company, and sought, to recover damages for personal injuries sustained by the plaintiff by reason of being run over by a locomotive engine operated by the defendant on its railroad. The complaint, as amended, contained thirteen (13) counts.

Tried before the Hon. Thos. W. Coleman,, Jk. This was ah action brought by Calhoun County against the Southern Car & Fo-undrv Company, a corporation, seeking to recover license taxes for doing-business in said county during the years 1899, 1900 and 1901, and also 10 per cent, of the license ta.x for each of said years as fees for the tax commissioner. The complant. as amended contained six counts.

AppExíl from the Circuit Court of Mobile. Tried before1 tlie, Hon. Wm. S. Anderson. This suit was instituted by the appellee in the Circuit Co-urt of Mobile County to recover damages for the alleged negligence of the defendant, causing the death of his intestate, Arthur Robbins on the 19th day of December, 1900.

Api'kal from the City Court of Birmingham. Tried before the Hon. Wm. TV. Wilkbkson. This was an action on the case, and wa*s brought by the appellee, R. L. I )anger field. against the appellants, James T. Burton, a, constable, and Julius L. Lockwood, Thos.

<p>Appeal from the City Court of Montgomery.</p> <p>Tried before the Hon. A. D. Sayre.</p> <p>- This was an action brought by the appellee, Jerry Bryant, against the Louisville & Nashville Railroad Company, to recover damages sustained by the plaintiff by reason of one of the defendant’s trains^ coming in collision with a horse and buggy owned by the plaintiff, and. which plaintiff was driving at the time of the accident complained of.</p> <p>The facts of the case are sufficiently stated in the opinion.</p> <p>Among the charges requested'by the defendant, and1 to the refusal to give each of which the defendant separately excepted, was the general affirmative charge in favor of the defendant. From a judgment in favor* of the plaintiff, the defendant appeals, and assigns as error the rulings of the trial court, to which exceptions were reserved.</p> <p>Cited Qoorgia Pacific R. R. (Jo. r. Lee, 92 Ala. 262, 267; also McKay r. New York Central R. R. Co., 35 N. Y. 75.</p>

Api*kal from the Circuit Court of Marshall. Tried before the Hox. A. IT. Alston. This action was brought- by the appellant, F. M. Kirby, against the appellees, and sought to recover damages for alleged breach of bond, given by E. E. Forbes with the other defendants and ,sureties, to contest a claim of exemption.

Tried before the Hon. Wm. S. Anderson. Tin's action was brought by the appellees against the appellants to recover the price of certain cross-ties delivered by the plaintiffs to the defendants and accepted by them. The complaint as originally filed contained two counts. The last count contained the usual allegations under the common counts for an amount due upon an account and for goods, wares and merchandise sold to the defendants.

Tried before tbe Hon. B. C. Jones. Tbe action in this case was brought by tbe appellant, M. C. Ragsdale against tbe appellee, H. K. Gresham. There were six counts in tbe complaint, tbe first five being common counts for money bad and received, etc. These require no notice, as none of the questions raised relate to them.

Tried before tlie Hon. J. C.' Richardson. This action was brought by the appellant, John Spann, against Lowndes County, to recover from the defendant $50, alleged toi have been paid by the plaintiff to tlie Probate Judge for the use of Lowndes County, in addition to $300 previously paid by the plaintiff for obtaining a license as a retail liquor dealer in the town of Haynevilte, which said amount of $50, it is alleged in the complaint, was in excess of the lawful license…

Heard before the Hon. B. C. Jones. The appellees1, J. R. Waldrop and others, being qualified electors, citizens and tax-payers of the city of Bessemer, filed -tine.- petition in this case, addressed to .Hon. B. C. Jones, Judge of the City Court of Bessemer, in which it was a.verred that Thomas T. Huey ivas the regularly elected and acting mayor of the city of Bessemer, and the other named appellants were the regularly elected and acting aldermen of the city of Bessemer, and…

Kitt Geter filed his petition addressed to the Justices of the Supreme Court, asking; for the issuance of a writ of mandamus directed to the judge of the tenth judicial circuit, commanding him to proceed to hear and determine the motion for a new trial, made on the part of the petitioner in the case of Kitt Geter v. The Central Coal Company, which was pending in the circuit court of Jefferson county, and which motion, it was alleged in the petition, the said judge of the…

Tried before the Hon. J. A. Bilbro. this action was brought by the appellee, Nancy. Robinson, as administratrix of the estate of Corinne Green, against the Louisville & Nashville R. R. Co., to recover damages for the alleged negligent killing of the plaintiff’s intestate; and was instituted on December 17, 1898. The killing occurred on March 7, 1897.

Tried before the Hon. Wm. S. Anderson. This action was brought by tlnei appellant against the appellee to recover damages for personal injuries alleged to have been sustained by the plaintiff, who Avas in the defendant’s employ, by reason of'the defendant’s negligence. The plaintiff claimed 110,000 damages. There Avere verdict and judgment in favor of the plaintiff, fixing his recovery of damages at $10,000.

.Appeal from Limestone Circuit Court. Tried before the ITou. Osceola Kyle. Held: controlled and operated” same. In 1899, another lease was executed to the defendant company, by the Nashville & Decatur Railroad Company, leasing “all its roadbed, easements, properties, depots, franchises and railroad belongings of every kind and character for a period of nine hundred and ninety-nine years.” The defendant alleged…

Tried before the Hon. Peyton Norvell. This action was brought by the appellant against W. A. Meyers, as administrator of the estate of W. J. Meyers, deceased. The counts of the complaint for the purposes of this appeal are sufficiently shown in the opinion. : The pleas, the substance of which is shown in the opinion, ware pleaded “for answer to each and eveffy count of plaintiff’s complaint.” The 6th plea was. as follows : “6th.

Heard before tbe Hon. W. L. Parks. Tbe bill in this case was filed by the appellees against tbe appellants. Tbe purpose of tbe bill and tbe aver-ments of facts are sufficiently shown in the opinion. Upon filing tbe bill and on- entering into a bond, as prescribed by order of tbe Chancellor, a temporary injunction was issued. Tbe respondents filed a motion to dissolve tbe injunction, and to dismiss the bill for want of equity.

Tried before the I-Ion. John H. Disqtjio. ' This action was brought by the appellee, J. F. Hoge, against the Southern Railway' Co. to recover damages for the alleged negligent killing of two mules, the property of the plaintiff.

Heard before the Hón. W. L. Parks. The bill in this case Avas filed by the appellee, Mrs. D. E. Lawrence, against the appellant, D. N. Lawrence, Avho Avas complainant's husband, and prayed that the… Held: the report of the register was made, and the respondent filed exceptions to this report. Upon the submission of the case on the exceptions filed to the report of the register, the chancellor overruled the exceptions and confirmed the decree.

Tried before the Hon. J. A. Bilbko. This was a statutory action of detinue brought by the appellee, Sheffield Couch, against the appellant, F. M. Couch, for the recovery of a mule. The plaintiff and the defendant claimed title through one Thomas Couch, deceased, wlm was the father of the plaintiff and defendant. The plaintiff claimed title to the mule as the donee of his father, and the defendant as the administrator of his father’s estate.

Tried before the Hon. Thos. W. Coleman, Jr. This was a. common law action of ejectment brought by the appellant against the appellee. The facts of the case necessary .to an understanding of the decision on the present appeal are sufficiently stated in tire opinion.

This was an action brought by the appellee, T. B. Sport, against- the Central of Georgia Railway Company, to recover damages for the alleged negligent injuring of a- cow, which was the property of the plaintiff. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Tried before the Hon. A. A. Coleman. This action was brought by the appellee, William D. Gunn, as the administrator of the estate of Ethridge Nunnalee, against tlie appellant, the Birmingham Southern Railroad Company, to recover damages for the alleged negligent killing of the plaintiff’s intestate. In the complaint the plaintiff claimed $25,000.

Tried before the Hon. A. A. Coleman. This was an action brought by the appellee, Samuel L. Nail, against the Tutwiler Coal, Coke & Iron Company.

Tried before' tire; Hon. B. C. Jones. The appellee brought this action of detinue against the appellant for the recovery of a horse, and there was a Verdict and judgment in his favor. The material evidence is stated in the opinion.

Heard before the Hon. Charles W. Ferguson. The bill in this case was filed by the appellee, William H. Little, against R. I). Johnston and Lizzie Johnston, his wife, and Hugh M.' Hartón and Julia B. Hartón, his wife. The purpose of the bill and such facts averred therein as are necessary to an understanding of the decision upon the present appeal, are sufficiently stated in the opinion.

of Jackson. Heard before the Hon. William I-I. ¡Simpson. The. bill in this case was filed by the appellee against the appellants, to have the respondents enjoined from interfering with the servants and employees of the plaintiff, in entering within the enclosures of the re- / spondents, and removing the respondents’ felices, and/ constructing a side track for the use of the company.

Heard before the Hon. A. A. Coleman. This is an action brought by the appellants against the appellee to recover damages for the alleged breach of covenant against incumbrances, averred to have been contained in a deed or deeds made by appellee to appellants.

AppkaIj from the Chancery Court of Mobile. Heard before the Hon. Thomas H. Smith.- The appeal in this case was filed by the' appellant. Sibley Holmes, against the appellee, Mrs. M. E. Myles, for the purpose of compelling the defendant to specifically perform a contract for the conveyance-of certain lands to the complainant.

Heard before the Hon. W. P. Acker, Special Judge. The bill in this case was filed on October 7, 1901, by the appellant, C. W. Stewart, against the appellées.

Tried before tbe Hon John G. Winter. This was an action brought by the appellees, Branch, Powell & Co., against the appellant, to recover the amount alleged to be due upon two promissory notes. In the complaint the plaintiff was described as follo ws: “Branch, Powell & Co., a copartnership, composed of E. C. Branch, B. P. Powell and K, II.

Heard before the Hon. Osceola Kyle. This was a.n action brought by the appellant, the Keystone Manufacturing Company, against John M. Hampton, to recover $210.00, the purchase price of one No. 12 Keystone Corn Snapper and Fodder Shredder, sold by plaintiff to defendant.

Appeal .from the Circuit Court of Jefferson. Tried before the. Hon. A. A. Coleman. This action was brought by the appellee, William Lintner, against the Birmingham Southern Railway Company, to recover damages alleged to have been caused by the negligence of the defendant in one of the engines operated on the defendant’s road, running upon or against a horse and buggy which belonged to the plaintiff.

Appear from the Circuit Court of Jefferson. Heard before the Hon. A. A. Coleman. This action was brought by the appellant, A. J. Hall, against the appellees, Peter Bising and Chichester, Yan-cey & Orr. Chichester, Yancey & Orr were real estate iirm, and were the rental agents for Peter Bising, and directed the filling up of the lot owned by said Peter Bising. The purpose of the: suit and the facts of the case are sufficiently stated in.the opinion.

Tried before the Hon. W. L. Parics. The bill in. this case was filed by the appellee, the Deposit Bank of Frankfort, a corporation of the State of Kentucky, against the appellant, W. P. McGaugh. On the 18th of August; 1898, the complainant, which will be referred to as The Bank, obtained a judgment in the Circuit Court of Lowndes county for $1,086.12, against A. E. Caffee, besides costs of suit.

Tried before tlie Hon. John H. Disque. Tliis action was brought by the appellee, L. L. Herz-berg', as surviving partner of Herzberg Brothers, against John F. Hoge, to recover damages resulting to the plaintiff for having purchased certain cotton from the defendant which defendant represented belonged to him. The complaint as amended contained five counts.

Thos-. H. Smith. The bill in this case was filed by the City of Mobile against tlie¡ Mobile? Light & Railroad Company for the purpose of establishing and enforcing a lien upon certain portions of the defendant’s street railroad track laid upon certain streets in the city of Mobile, for the payment of said street railroad company’s portion of the cost of paving certain streets.

Tried before the Hon. Wm. S. Anderson. This was a- statutory action in the nature of ejectment brought by the appellee, Pauline Chastang, against the appellant, Adele Chastang, and sought to recover a tract of twenty-four acres of land. The title; of the plaintiff was based on a claim of adverse possession of over twenty years, by herself and her father, Theodore Collins.

Appear from tlie Circuit Court'of Mobile. Tried before tlie TTon. William S. Anderson. This was a garnishment suit, in which the appellant, W. 0. Chamberlain, had recovered a judgment against Whiting Ames, and upon said judgment had sued out a writ of garnishment served upon the appellee the Mobile Fish & Oyster Co. The defendant, Ames, was employed by the Mobile Fish & Oyster Oo.

Tried, before flic* lion. William S'. Anderson. This action was brought by the appellee against the appellant railroad company, to recover damages for personal injuries and injury to his property. The facts of the case are sufficiently stated in' the opinion.

Heard before the Hon. Charles A. Benn. The proceedings in this case was had upon a petition filed by the appellee, W. C. Cunningham, as administrator of the estate of A. B. Jackson, deceased, and addressed to. the judges of the City Court of Birmingham, praying for the issuance of the unfit of scire facias to revive a judgment in the petitioner’s name as administrator of A. B. Jackson, deceased, against the Birmingham Bail-way & Electric Company.

Tried before the Hon. John F. IIttbbaed. This was a. summary proceeding instituted by the appellant, I. E. Boyett, against the appellee, John J. Bayne. (>n May 20th, 1897, Wright, Henderson & Rainer obtained a judgment against one M. C. Gantt, in the Circuit Court of Covington county for fill.94, together with tlxe costs of the suit. The defendant, John J. Payne, was one of the attorneys who obtained said judgment.

Tried before the Hon. Wm. S-. Andekson. This was an action brought by the appellee, Kornman, against the appellant, I)a,vis, to recover damages for personal injuries sustained while working for Davis in a planing mill, under the superintendence of one Taylor, There was verdict for the plaintiff and his damages were assessed at f 150Ü.

Tried before the Hon. E. B. Almon. This is an action brought by the appellant, the Southern Railway Company, against the appellee, the Mayor and Aldermen of the City of Florence, to recover the sum of one hundred dollars paid by plaintiff to defendant, under an ordinance passed by appellee, fixing that amount as license for each bridge crossing the Tennessee River, any portion of which is within the corporate limits of Florence.

Tried before the Hon. W. W. Wilkerson. This was an action of assumpsit, brought by the appellant against the appellee. On the trial of the case there were verdict and judgment in favor of the plaintiff. A few days after the rendition of the judgment, there was a motion made by the defendant to be granted a new trial, assigning several grounds for said motion.

Tried before the Hon. G. K. Miller. This was an action brought by the appellees against the appellants, to recover $75.00, the amount of five months royalty alleged to be due upon a lease executed by the plaintiffs to the defendants by which lease the plaintiffs granted to the defendants the rights and privileges to mine all iron ore in and under said designated lands.

Tried before the Hon. B. C. Jones. This was an action brought by the appellee, John D. Maddox, against the appellant, John W. Barden, in which the plaintiff sought to recover from the defendant |2000 damages for an assault and battery committed by the defendant upon the plaintiff.

Tried before the Hon. Osceola Kyle. This was a statutory action of ejectment, brought by the appellees against the appellants, to recover certain lands specifically described in the complaint. The facts of the case relative to the claim of title of tbei respective parties are sufficiently stated in the opinion.

<p>Appeal from the Probate Court of Geneva-</p> <p>Heard before the Hon. Ed. Roach.</p> <p>The facts in this case are sufficiently stated in the opinion.</p>

Tried before the Hon. A. A. Coleman. This suit was- originally brought by Pearl O. Bryan as administratrix of the estate of Charles M.… Held: as matter of law, that Fennell, the plaintiff, was guilty of contributory negligence, in attempting to cross a railroad crossing in driving an electric car, in front of a moving train, first, because if' he carefully discharged the duty of keeping a look-out before getting on the crossing, he sano defendant’s train approaching the…

Ileárcl before the Hon. Tiros. H. Smith. The bill in this case was filed by W. F. West, appellee, against Mattie Langford and her husband and Emma Williams, and against the appellant, Hilton McKee. The object of the bill was to set aside a deed made by M. J. Williams, deceased, to her two daughters named above; and to subordinate to the1 rights of appellee, as a judgment creditor of the said M. J. Williams, a mortgage executed by the said daughters to McKee.

Tried before the Hon. Charles A. Senn. This action was brought by the appellant, Howard Going, by his next friend, against the appellee, to recover damages for personal injuries.

Appeal‘from tlie City Court of Montgomery. Tried before the Hon. A. 1). Bathe. This was an action commenced by the appellee against the appellant to recover commissions alleged to be due him as a broker. The¡ facts are sufficiently stated in the opinion. A broker is not entitled to commissions for unsuccessful efforts. The risk of failure, both as to his labors and his expenditures are wholly his, and reward only conies with success. — 8'ibbcdcl v. Bethlehem Iron Co., 88 Am.

-A TPi'vATj from the Chancery Court of Mobile. Heard before the Hon. Thomas H. Smith. The bill in this case was filed by the appellants against the appellees. The purpose of the bill ami the facts of the case are sufficiently stated in the opinion.

.Appeal from the Circuit Court of Butler. ' Tj-ied before the Hon. J. C. Richardson. This was an., action brought by the appellants against the appellee, and counted upon a fire insurance policy which was issued by the defendant tó one James E. Mos-ris,- which policy, it is averred in the complaint., became, after the destruction of the property by fire, the property of the plaintiff, and was the property of the plaintiff at the time of the institution of the suit.

ppeaXi from City Court of Bessemer. Tried before the Hon. -B. C. Jones. This action was brought by the appellee, W. P. Johnson, against the Southern Railway Company to recover damages sustained by the plaintiff's property being destroyed by fire', which fire, as was alleged in the complaint, was caused by sparks being emitted from a passing engine operated by the defendant, through the negligence of tke> defendant.

Tried before the Hon. M. B. Abercrombie. The appellant in this case, Butler Reid, was indicted, tried and convicted for engaging in the business of a dealer iii pistol cartridges at a place not in any city, without having a license, and contrary to law.

■ Heard before the 1-Ion. Thomas IT. Smith. The bill in this case was filed by the E. .Van Winkle Gin & Machine Works against the appellants, E. N. Brown and N. W. L. Brown, and sought the specific performance of a contract. The contract sought to be specifically enforced is set out m haec verba in the opinion, and the prayer of the bill is also' set out in the opinion.

Heard before the I-Ion. Thomas H. Smith. The bill in this case; was filed by the appellant, Frank H. Smith, against the appellee, Louise J. Smith. The purpose of the bill and the facts of the case are sufficiently stated in the opinion. On the submission of the cause, upon the pleading and the proof, the Chancellor rendered a decree, denying the relief prayed for, and ordered the bill dismissed.

Heard before the Hou. Thomas IT. Smith. The bill in this case Avas filed by the appellees, Arthur S. Bartlett, Alonzo Boberson, Edward. G. Ensign and the Twin Tree Lumber Company, a corporation, against- the appellant, Allen P. HoAvison, and sought to haAre specifically enforced the performance of a contract for the sale of land and timber on said lands. The facts as aArerrecl in the bill upon which the relief is sought, are sufficiently shoAvn in the opinion.

Heard before the Hon. W. H. Simpson. The bill in this case was filed by the appellant, F. A. Bostick, against the appellees. The averments of the bill are the same as they were when the case was in this court on a former appeal, and a special reference is here made to the statement of facts, as shown in the report-of said case in 133 Ala. 344.

Tried before the Hon. Osceola Kyle. This is a statutory action in the nature of the action of ejectment, brought by the appellee, Raker, against the appellant, Lowery, and ivas commenced on the 26th day of April, 1902. Lowery was holding under the appellant McPherson, as tenant, and at the trial term, McPherson, was made a party and allowed to come in and defend. The plaintiff claimed title through Martha.

Tried before the Hon. A. A. Coleman. This was an action brought by the Mayor and City Council of Ensley against Fink & Roegner and Meyer-Marx Co. Fink & Roegner were not served Avith summons and complaint, and the suit was discontinued as to them. The suit was upon a promissory note. The defendant pleaded the general issue, and by special pleas set up that the note Aras Aroid in that the consideration thereof Avas illegal.

Tried before the Hon. B. C. Jones. ' This was an action brought by the appellee, C. W. H. Hinton, by his next friend, against the Birmingham Bailway, Light & Power Company. The complaint contained two counts.

Tried before tlie I-Ion. A. A. Coleman. This actioni was brought ,by the appellee, Fannie Brantley, against the appellant, the Birmingham Railway, Light & Power Co., to recover damages for personal injuries, the plaintiff claiming flO1,000.00. The complaint contained four counts. The 1st .and 4th counts charged simply negligence.

Heard before the Hon. Wm. H. Simpson. The bill in this case was filed by the appellee, Robert Riddle, as a judgment creditor of J. B. Allen, against J. B. Allen, Sallie B. Allen, his wife, and the Southern Home Building & Loan Association; and sought to have set aside, cancelled and annulled a mortgage executed by Sallie B. Allen and J. B. Allen to the Southern Home Building & Loan Assn., and to have the land conveyed therein subjected to the payment of complainant’s demand;…

Tried before the Hon. William S. Anderson. This action was brought by the appellee, Patrick Manning, against the appellant, Thomas J. Shea, to recover damages for personal injuries sustained by the plaintiff while engaged in laying pipe in a ditch excavated for the purpose of laying .sewer pipes. The complaint contained 20 counts.

Heard before the Hon. A. H. Alston. The bill as originally filed was filed by the appellant, Saphronia Chancellor, against A. L. Teal and Tidy Pennington.

Apical from the City Court of Gadsden, in Equity. Heard before the Hon. John H. Disque. The bill in this case was filed .on July 22, 1903., by the appellants, W. I-I. Weller and R. A. Mitchell, against the City of Gadsden, Robert Campbell as Mayor of said city, and the Aldermen of said city, naming them.

Heard before the Hon. Thomas H. Smith. The bill in this case was filed by the appellee against the appellant on July 7th, 1904. In the bill it was averred that up to and including June 20th, 1904, and. for a long time prior thereto, the complainant was in possession -of a certain boom in a navigable stream.

Tried before the Hon. Osceola Kyle. This was an action of trover brought by the appellants to recover damages for the wrongful conversion by the defendant of cotton. The defendant pleaded the general issue. Upon this plea the trial was had which resulted in a mistrial.

. Tried before the Hon. Charles .A. Senn. This was an action of trover brought by the appellee, Kauffman & Company, against the Louisville & Nashville Railroad Company, to recover damages for the alleged conversion of a barrel of whisky. .On the tidal of the cause, the following facts were shown: Kauffman & Company made a contract with one John Caretti, by which it was agreed to send him from Cincinnati, Ohio, a barrel of whiskey upon approval, and in the contract it was…

Heard before the Hon. J. P. Sanders, Special Chancellor. This’was a bill filed by the appellee, Mrs. P. H. Brun-son, against the heirs of the estate of L. Henderson, deceased, seeking -to have cancelled a certain deed of conveyance made by complainant to L. Henderson, on the ground that same was a security for a debt of complainant’s husband, E; Gf. Brunson.

Tried before the Hon. William S. Anderson. This action was brought by the appellant against the appellee. The purpose of the suit and the facts intro-cLucecl in evidence are sufficiently shown in the opinion.

Tried before the Hon. A. 1). Sayre. This action was brought, by the appellee, Oscar1 J. Pruett, against the Provident Savings Life Assurance Society, and counted upon a life; insurance policy issued by the defendant, upon the life of Beth G. Pruett, who had died pending the term of the insurance. The facts of the case necessary to an understanding of the decision on this appeal are sufficiently stated in the opinion. There were verdict and judgment in favor of the defendant..