Volume 142 — Alabama Reports

Tried before the Hon. Daniel A. Greene. The appellant in this case, W. E. Johnson, was indicted, tried and convicted for obtaining money under false pretenses.

Tried before the TIon. William H. Thomas. The appellant in this ease was tried and convicted under the following indictment; “The grand jury of said county charge that before the finding of this indictment, Shad Dean and Willie Tolliver alias Crack, feloniously took five’bills of the denomination of five dollars each of the lawful currency of the United States of America, the property of J. J. Boyd, from his person and against his will, by violence to his person, or by…

Tried before the Hon. James J. Ray. The appellant in this case, Henry Walker, was indicted and tried for murder, was convicted for murder in the first degree, and sentenced to be hanged. The facts of the case necessary to an understanding of the decision upon the present appeal are sufficiently stated in the opinion.

Tried before the Hon. John H. Disqxjb. The appellant in this case was indicted, tried and convicted for robbery, and was sentenced to imprisonment in the penitentiary for 40 years. In the Supreme Court there was a motion made to strike the bill of exceptions from the file upon the ground that it was not signed within the time allowed by law.

Tried before the Hon. D. A. Greene. The appellant, Taylor Smith, was indicted for the murder of artin J. Conniff, was tried and convicted of murder in the second degree and his punishment fixed at thirty years imprisonment in the penitentiary. The indictment was in the following form: “The State of Alabama, Jefferson County. The Criminal Court of Jefferson County.

Tried before the Hon. John Pelham. The appellant in this case was indicted, tried and convicted of public drunkenness. The indictment under which the conviction was had was preferred by a grand jury organized by the circuit court of Clay County at the spring term of said court in 1904.

Appeal, from the Circuit Court of Madison. Tried before the Hon. Paul Speaks. The appellant in this case, Minerva Walker, was indicted for murder, was convicted of murder in the first degree, and sentenced to' the penitentiary for life. The indictment was preferred by the grand jury of the circuit court of Madison county at the February term of 1904, of said court, and the case was tried at the same term of the court.

Tried before the Hon. J. C. Bichardson. The appellant, Colonél Weaver, was indicted, tried and convicted for the seduction of Mollie Jerkins, “by means of temptations, arts, flattery or a promise of marriage,” and his punishment fixed at six years imprisonment in the penitentiary.

Tried before the Hon. James J. Ray. The appellant in this ease, Bob White, was indicted, tried and convicted of bigamy. The' indictment Avas preferred by the grand jury at the spring term, 1903, of the circuit court of Walker county. Trial was had on September 21, 1903, when Walker county .constituted one of the counties in the 14th judicial circuit under the provisions of Avhat Avas known as the Lusk LaAV redistricting the circuit courts of the State.

Tried before the Hon. H. J. Lancaster. The facts of the case are sufficiently stated in the opinion. cited Joseph v. Randolph, 71 Ala. 499; State v. Goodwin, 33 W. Ya. 179 ¿Morion v. Chandler, 6 Ala. 899; Ex Parte Burnett, 30 Ala. 461; State v. Moore, 113 N. C. 697.- cited Capital etc. Co. v. Board of-Revenue, 117 Ala. 303; Phoenix etc. Co. v. Fire Department, 117 Ala. 631; Ex Parte City Council of Montgomery, 64 Ala. 463; Osburn v. Mayor, 44 Ala. 493; Nathan v. Louisiana, 8…

Tried before the Hon. H. J. Lancaster. The appellant in this case was indicted, tried and convicted for-an assault and battery with a weapon. The indictment was preferred by the grand jury of the circuit court of Elmore county on March 10, 1904.

Tried before the Hon. J. A. Bilbro. The appellant in this case was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment, I. N. Tallent, whose Christian name is otherwise unknown to the grand jury, with the purpose to hinder, delay or defraud G. K. Appleton, who had a lawful and valid claim thereto under a written instrument, to-wit, a mortgage, did sell or remove personal property, to-wit, a shot…

Tried before tbe Hon. H. A. Pearce. The appellant in this case, Ed Dickens, was indicted, tried and convicted of larceny of three gallons of crude turpentine. The facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence the defendant requested several charges.

Tried before the Hon. John H. Disque. The appellant in this case was indicted, tried and convicted for gaming. Under the opinion on the present appeal it is unnecessary to set out the facts in detail. cited Denson v. Gray; 113 Ala. 608; Ala. etc. Go. v. Garner, 119 Ala. 70. '

Tried before the Hon. H. J. Lancaster. The prosecution in this case was commenced by an affidavit purporting to be made before the judge of the county court of Elmore county, charging the appellant, Phill Jackson, with having committed an assault and battery upon one Lindsey Jeter. It is shown by the record that the defendant interposed a plea in abatement to the affidavit and warrant, upon the ground that they were insufficient for the institution of the prosecution.

Tried before the Hon. John H. Disque. The appellant in this case was indicted, tried and convicted for abandoning his family and leaving them in danger of becoming a burden to the public. The indictment was preferred and filed in court on September 26, 1902. The State introduced Tandy Wester, the wife of the defendant. The defendant objected to the examination of his wife as a witness upon the ground of incompetency.

Tried before Hon. John M. Loplin. The appellant in this case ivas tried and convicted of carrying a pistol concealed about his person. The facts relating to the ruling of the trial court which is reviewed on the present appeal are sufficiently stated in the opinion. Among the charges requested by the defendant in the manner as set forth in the opinion was the following: “4.

<p>Appeal from Order of Probate Judge of Olay County.</p> <p>Heard before the Hon. F. J. Ingram.</p> <p>The facts of the case are sufficiently stated in the opinion.</p>

Heard before the Hon. H. A. Peaece. The appellant in this case, Gus Law, was arrested and imprisoned in the county jail of Houston county, by virtue of a warrant issued by the Hon. George Leslie, who was the judge of probate and county judge of said county. While so imprisoned, the said Law filed his petition addressed to the Hon. H. A. Pierce, judge of the 12th judicial circuit, for a writ of habeas corpus, for the purpose of being discharged from such imprisonment.

The facts in this casé are sufficiently stated in the opinion. The law is clear and unmistakable, that any unreasonable detention entitles the prisoner to his discharge. — Ex parte CouCher, 103 Ala. 305; Ex parte King, 82 Ala. 59; Ex parte Steioart, 98 Ala. 66; Ex parte Oreios, 78 Ala. 457.- cited 'White v. State, 134 Ala. 197, 208; O’Heil v. State, 134 Ala. 189, 194.

Heard before the Hon. J. C. Richardson. The appeal in this case is prosecuted from from an order of the judge of the 2d judicial circuit in denying to the appellants, Maggie Johnson and Katie Johnson, bail in habeas corpus proceedings. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Heard before the Hon. William H. Ti-iomas. On the 20th day of May, 1904, the governor of Louisiana issued a requisition upon the governor of the State of Alabama, commanding that E. Peycy Barriere, the appellant in this case, be apprehended and turned over to a certain named person as the duly authorized agent of the State of Louisiana; it being recited in the requisition that the said Barriere was charged with the crime of deserting his wife and minor child, and was a…

Heard before the Hon. Jno. T. Lackland. The proceedings in this case were had upon an information in the nature of a quo w.wrrmto being filed by the State of Alabama on relation of Alonzo L. Hasty, and Alonzo L. Hasty, as an individual. The petition was addressed to the Judge of the 1st Judicial Circuit, and filed in the Circuit Court of Marengo County.

The State of Alabama on relation of the attorney general and his solicitor of the 8th Judicial Circuit Court, filed an original petition in the Supreme Court, praying for a writ of mandamus to be issued out of said court to the Judge of the 8th Judicial Circuit Court, requiring him to restore to the docket of the Circuit Court of Madison.

Heard before the Hon. A. D. Sayre. The proceedings in this case were instituted by the State of Alabama on the relation of A. P. Tyson and others against the appellees. The purposes of the proceedings and the facts averred in the information are sufficiently set forth in the opinion.

Heard before the Hon. A. D. Sayre. The proceedings in this case were had on an information in the nature of quo warrmto filed by the State of Alabama on the relation of G-. W. Covington against J. A. Thompson, on Nov. 24th, 1904.

Tried before the Hon. W. L. Parks. This was a petition filed in the chancery court of Butler county by J. F. Stallings, in behalf of Dan alias Daniel Stallings, as follows: “Your petitioner, J. F. Stallings, most respectfully represent unto your honor that Dan alias Daniel Stallings, in whose behalf this application or petition is made, is illegally imprisoned, and restrained of his libetry and held under guard in the Elk Hotel, in the city of Greenville, Alabama, by one J.…

Heard before the Hon. A. D. Sayre. The facts in this case are sufficiently stated in the opinion.

Tried before the Hon. Ed B. Almon. This was an action brought by the appellee, R. E. Shea, against the appellant, The Northern Alabama Railway Company, to recover $1,999, as damages for personal injuries sustained by the plaintiff, while acting as a brakeman in the service of the appellant corporation.

Tried before the Hon. William S. Anderson. This was a suit brought by the Evans Marble Company against G. J. McDonald & Company, Daniel J. McDonald, W. W. Kearn, Jackson C. Miles, and the D. J. McDonald Stone Company, a corporation. Each of these defendants was served with process. Upon the case coming on to be heard, the plaintiff amended its complaint by striking out the name of the D. J. McDonald Stone Company as a party defendant.

Tried before the Hon. Chas. A. Senn. This action was brought by the appellee, Squire Thomas Vail, against the appellant, the Alabama Great Southern Railroad Company, to recover damages for personl injuries sustained by plaintiff who was an employe of the defendant corporation. The main facts in the case are set out in the opinion.

Tried before the Hon. Robert Tait Ervin, Special Judge. This is an action brought by the appellant, Ellen Bland, against the appellee, the City of Mobile, to recover damages for personal injuries sustained on account of falling through a foot-bridge crossing a gutter in one of the public streets of the city of Mobile.

Tried before the Hon. William S. Anderson. This action was brought by the appellee, John W. Parnell, against the Southern Bailway Company to recover $100.00 damages for the alleged killing of plaintiff’s dog. There ivas evidence introduced showing that plaintiff’s dog was killed by one of the defendant’s trains.

Tried before the I-Ion. GK K. Miller. The facts in this case are sufficiently stated in the opinion.

Tried before the Hon. Ed. B. Almon. This action was brought by the appellant, George A. Lehnert against J. S. Lewey and Peter J. Karge, and counted upon a promissory note for $50.00. The defendant Karge pleaded the general issue, payment and the following special pleas:. 3d. That defendant Peter J. Karge was surety on the obligation sued on in this case and this fact was known to the plaintiff before said obligation was purchased and transferred to him.

Heard before the Hon. Ti-iomas H. Smiti-i. The bill in the case was filed by the appellee, seeking to restrain and enjoin the appellant from laying its track in the City of Mobile in front of the property of the appellee, or upon any part of the right of Avay of appellee, or from crossing any of the tracks of appellee on Water Street in the City of Mobile, and from laying the track of appellant across certain lots claimed to be owned by appellee in the City of Mobile.

Heai’d before the Hon. Bichard B. Kelly. The bill in this case was filed by the appellee, W. C. Stone as administrator of W. H. Stone, deceased, against the appellants.

Tried before the IIon. W. W. Wilkerson. This action was brought by the appellee, Eldonia Clemons, against the Birmingham Railway, Light & Power Company, to recover damages for personal injuries alleged to have been sustained by the plaintiff while a passenger on one of defendant’s cars, which injury was caused by reason of the negligence of the defendant. There were verdict and judgment for $750.00.

Heard before the Hon. B. C. Jones. The proceedings in this case were instituted by the appellant, Lucy Whitehead, filing a petition in the City Court of Bessemer, asking for the appointment of an administrator and trustee of and for the estate of John Whitehead, deceased, with the will of said John Whitehead annexed.

Heard before the Hon. Richard B. Kelly. The bill in this case was filed on July 15th, 1903, by the appellant, Charlotte Ewell Mullen, against J. M. Walton, as administrator of the estate of Martha A. Ewell, deceased, and the heirs of said Martha A. Ewell.

Tried before the Hon. J. W. Mabry, This is an action'by' the appellants, A. J. and Robert H. Morey and Mrs. Helen M. Niles, to recover from the appellee, W. S. Monk, two thousand dollars, being the proceeds of a benefit certificate in the Knights of Honor on the life of plaintiff’s intestate, Major R. R. Morey. Major Morey in his life time ivas a member of the Knights of Honor, a benefit society incorporated under llie laws of Missouri.

<p>Appeal from the Chancery Court of Lowndes.</p> <p>Tried before the Hon. William L. Parks.</p> <p>■ Under the opinion in this case it is unnecessary to make a statement of facts.</p>

Tried before the Hon. Wm. S. Anderson. The facts are sufficiently stated in the opinion. There'was a failure of proof by the plaintiff. In an action for rent nothing-can be more material than the description of the premises claimed to have been rented.

Tried before the Hon. J. C. Richardson. This is an action brought by the appellant, Mark A. Travis, against the appellee, D. H. Rhodes, to recover the statutory penalty of two hundred dollars, under sections 1065 and 1923 of the Code, for failure to enter on the margin of the record of a registered judgment the partial payments which had been made on such judgment. Geo.

Tried before the Hon. Wm. W. Wilkbrson. This was an action by the appellee against the appellant for damages for personal injuries received while a passenger on the defendant’s street railway as a result of a collision between the car on which the plaintiff was riding and a Louisville & Nashville railroad train.

Tried, before the Hon. James A. Bilbro. This is an action brought by appellants, Irene Woodal and Willie Chambliss, suing by her next friend, against I. A. Wright, J. B. Manning, and Hodge Woodall as administrator of D. A. Thomas, deceased, the defendants being sureties on a bond of Robert'I.' Wright, as administrator of the estate of Martha E. Chambliss, said bond being in the amount of $3,000.

Tried before the Hon. John M. Wilson. The'proceeding in this case ivas had by the appellee, L. J. Davis, as the administrator of the estate of Irene Davis, deceased, filing a petition in the Probate Court of Clark County, asking to have certain lands, specifically described therein, sold for the payment of the debts of his intestate — it being averred in the petition that the said Irene Davis was, at the time of her death, the owner of a half interest in and to said lands.

Heard before the Hon. Thomas H. Smith. The bill in this case ivas filed by the appellees against the appellant. The purpose of the bill and the facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. The present appeal is prosecuted from a decree of the chancellor overruling the demurrer of the defendant to the bill, as amended; and the Rendition of this decree is assigned as error.

Tried before the Hon. John Moore. The appellant brought this action against the appellee, and sought to recover two thousand dollars damages for the failure of the appellee to carry her safely as a passenger from Birmingham to Belle Ellen.

Tried before the Hon. A. H. Alston. This was an action of trespass, and was originally brought by the appellee, John C. Carter, against the appellants, Oscar Fulgham, J. Q. Jamar and A. D. Holmes. The defendant Holmes was not found, and therefore not served with process, and his name was stridden as party defendant. On a former trial of the case, judgment was rendered against J. Q. Jamar and in favor of the defendant Fulgham.

Tried before the Hon. John P.- Hubbard. This is an action brought by the appellee, W. L. Frazier, to recover damages of appellants, G. B. Frierson and John Cooper, who were operating a ferry across the Conecuh river, near River Falls, in Covington county.

Tried before the Hon. W. W. Wilkerson. This action ivas brought by the appellee, James Gerganons, against the Birmingham Belt Railroad Company to recover damages for personal injuries. The complaint contained three counts, -which were in words and figures as follows: “First count.

Heard before the Hon. John Pelham. The proceedings in this case were had upon a petition filed by the appellant, J. W. Hooten, addressed to the judge of the circuit court of Clay county, praying that a writ of mandamus be issued to R. W. Mellon, as cleric of the county court of Clay county, commanding him to file the summons and complaint in said county court.

Tried, before the Hon. J. A. Bilbro. This whs an action brought by the appellee, Annie Belle Harris, suing by her next friend, George T. Harris, against the appellant, The Nashville, Chattanooga & St. Louis Railway Company, for damages for personal injuries sustained by appellee. The evidence showed that the plaintiff, who was a little child nineteen months old, was struck by' an engine, belonging to plaintiff, at or near a railroad crossing.

Tried before tbe Hon. Wm. S. Anderson. Tbis was an action of forcible entry and detainer, brought by tbe Blacksher Company, a corporation, against tbe appellant.

Tried before the Hon. J. A. Bilbro. This action was brought on Feb. 27th, 1902, by the appellants against the appellee, James M. Webb, a sheriff of Cherokee county, and a surety on his official bond, and sought to recover for Webb’s failure to execute a writ of venclitiona exponas, and thereby collect money upon a judgment which the plaintiffs had recovered in an attachment suit against one J. E. Abernethy.

Tried before the Hon. J. A. Bilbro. This was a claim suit between Mary Anglin, claimant, and Leonard Thomas, plaintiff. Attachment had been issued, on bond and affidavit by Thomas, and levied upon certain ^ property, which Thomas alleged belonged to Z. T. Anglin for $40.59 and costs, and on the trial of Mary Anglin’s claim in the Justice Court, neither the defendant nor the claimant appearing, there was judgment for the plaintiff.

Tried before the Hon. George S. Livingston. The proceedings in this case were had upon a petition filed in the Probate Court of Autauga county, by the appellee, A. H. Edwards.

Tried before the Hon. Paul Speaice. This was an action by the appellant, Ada F. McDonnell, to recover of the appellee, Llewellyn Jordan, money paid by appellant as costs in a proceeding in the United States Court, growing out of a. contest between appellant and appellee over the terms of the will of Mattie- Lee Fennell, deceased. The contest over the will was settled by a compromise between the parties, set ■ out below.

Tried before the Hon. J. A. Bilbro. This is a prosecution of the appellant, Edward L. Brown, for assault with intent to- murder one Grady Cox. It appears from the evidence that a few hours before the commission of the alleged offense, Cox and Brown had had a difficulty in which Cox had struck Brown with a stick. Cox was a. bo-y sixteen years of age.

Tried before Hon. Ed. B. Almon. Action by Florence Matthews, administratrix of the estate of Walter H. Matthews, deceased, against appellant to recover damages for personal injuries to her decedent causing his death. The 7th count of the complaint is set forth at length in the opinion. Defendant demurred to that count of the complaint upon the following grounds: (1). For that the count is vague, uncertain and indefinite. (2).

Heard before the Hon. Thomas H. Smith. The facts in this case are sufficiently stated in the opinion. Cited Kent et al..v. Deem, 128 Ala. 608-9; 11 Am. & Eng. Ency. Law (2nd Ed.) 421 ;(7omer v. Bank-head, 70 Ala. 493; Blackburn v. Fitzgerald, 130 Ala. 584; Scottish Union, etc. v. Dangaix, 103 Ala. 395.

Tried before tlie Hon. Charles A. Senn. This action was brought by the appellees, Bailey & Ho Avar cl, real estate agents, against the appellant, Mrs. Susan Lunsford, to recover commissions for procuring a purchaser for property owned by the defendant. The complaint contains four counts. The first three counts were common counts.

Tried before tbé Hon. A. A. Coleman. This was an action of trover brought by J. L. Lockwood, H. W. Lockwood and A. H. Lockwood, doing business as partners under the firm name of Lockwood Manufacturing Company, against the Southern Railway Company, to recover damages for the alleged conversion by the defendant of 7000 feet of poplar lumber. The damages claimed being fixed at $260.

Heard, before the Hon. Thomas H. Smith. Tbe facts of this case are sufficiently stated in the opinion. Tbe appeal is prosecuted by tbe defendant in the original bill, from a decree, and tbe rendition of this decree is assigned as error. Tbe decree itself is copied in the opinion.

Tried before the Hon. Osceola Kyle. This action was brought by the appellant, James Henry, against the appellee.

Heard before the Hon. Thomas H. Smith. The bill in this case was filed by the appellants, who are the children of Alice E. Berry, deceased, against the appellee as the executor of Cecil Carter, whoi in his lifetime was the trustee in a certain deed of trust executed by Mrs. Berry. • The material averments and the objects of the bill are sufficiently stated in the opinion. The chancellor dismissed the bill for want of equity, and from his said decree this appeal is prosecuted.

Heard before the Hon. Charles A. Senn. The bill in this case was filed on May 16th, 1903, by the appellants, W. C. Agee and E. W. Bucher, partners doing business under the firm name of W. C. Agee & Co., against the Louisville & Nashville Railroad Company and the South & North Alabama B. B. Company.

Heard before the Hon. Thomas H. Smith. The bill in this case was filed by appellee as a resident citizen and tax payer of Mobile county, Alabama, to enjoin the paying out by the County Treasurer of moneys for stationery, books and supplies for the Inferior Civil Court of Mobile County, and to enjoin the payment, out of the County Treasury of the salaries provided for in said act to be paid to the Sheriff, to the Judge, and to the ex officio clerk of the said Court.

Tried before the Hon. A. D. Sayre. This was a statutory action of detinue, brought by the appellant against one C. H. Kreuger to recover certain personal property specifically described in the complaint. The original defendant, Krenger, filed a disclaimer of ownership of any interest in the property, and suggested that the property sued for belonged to one Anna Russell. Mrs. Russell was then on her own petition made a party defendant to the suit.

Heard before the Hon. Thomas H. Smith. The bill in this case was filed by the appellee against the appellant and others. The facts o'f the case are sufficiently stated in the opinion.

Tried before the Hon. J. A. Bilbro. The purpose of the suit and the facts of the case axe' sufficiently stated in the opinion. The defendant xequested the court to give to the jury the following written charges, and separately excepted to the court’s refusal to give each of them as asked: “2. If the jury believe all the evidence, they cannot find for the plaintiff in the second count of the complaint.” “3.

Tried before the Hon. William Jackson. The proceeding in this case was instituted by the appellee, W. F. Porter, under Section 3134 of the Code of 1896, to compel the appellant, S. J. Tillman to deliver to the petitioner certain books‘and papers pertaining to the office of the justice of precinct 33 of Jefferson county, which office was held by the respondent Tillman at the time of and after the passage of an act of the legislature to establish an inferior court in precinct…

Tried before the Hon. A. D. Sayre. The facts relating to the rulings of the trial court upon the pleadings and showing the tendency of the evidence introduced, are sufficiently shown in the opinion.

Aiteal from the Chancery Court of Lowndes. Heard before the Hon. Richard B. KiSlly. The bill in this case was filed by the appellee, V. H. Bell, against the appellants, for. the.purpose of having removed a cloud from the title to certain lands described in the bill, which, it. was averred in the bill, complainant was entitled to. The averments of the hill are sufficiently set forth in the opinion. The respondents demurred to the bill upon many grounds.

Tried before the Hon. James J. Ray. S. J. Childers, a citizen of Walker county, filed his petition, addressed to the Hon. J. J. Ray, Judge of the 14th Judicial Circuit of Alabama, asking for the issuance of a writ of mandamus directed to the appellee, James W. Shepherd, as Judge of Probate of Walker County, commanding him to' issue the petitioner a license as a retail liquor dealer in the town of Jasper in said county.

Tried before the Hon. Richard B. Kelly. The bill in this case was filed by the appellee, Harriet Posey, against the appellants.

Tried before the Hon. John P. Hubbard. This action was brought by the appellant, J. S. Carroll, against the appellee, J. M. Warren. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. Upon the introduction of all the evidence, the plaintiff requested the court to give to the jury the general affirmative charge in his behalf, and duly excepted to the court’s refusal to give said charge, as asked.

Tried before the Hon. N. D. Denson. This is an action of Trover brought by the appellee (Irvin) against the appellant (Patterson) originallv in Justice Court, for the conversion of one red and wMo spotted steer, appealed to the Circuit Court and from a judgment in favor of appellee in that court this appeal is prosecuted.

<p>Appeal from the Chancery Court of Mobile.</p> <p>Heard before the Hon. Thomas H. Smith.</p> <p>This was a bill filed in the Chancery Court of Mobile by appellee, C. C. Mechem, against the appellant J. T. Long and one McKenzie to remove a cloud upon title. McKenzie filed a disclaimer*. The original bill in. the case, as amended is as follows: “Your orator, C. C. Me-chem, being over twenty-one years of age, brings this his bill of complaint against J. T. Long and W. E. McKenzie, both of whom are residing at Kansas City, Missouri. First. Your orator shows unto your honor that he is peaceable possession of and claims to own. and does own the following described land, situated in the county of Mobile, State of Alabama, to-wit: The North west quarter of Section 19, T. 1, S. R. 2, W., except six acres of aforesaid quarter section bounded as follows; on southwest by Mobile & Ohio right of way; on the north by the north section line; and on the east by a line twenty-five feet east of and parallel with Bickford’s fence— said six acres being in shape of a triangle. Your orator further shows, alleges and charges that J. T. Long and W. E. McKenzie, deny or dispute the title of orator to the land above described or to some portion thereof, and claim, or are reputed to claim and own said above described land or some portion thereof, or some right, title or interest therein, or are reputed to claim or hold some lien or incumbrance on said land. Third. Your orator further alleges that no suit is pending to test or enforce the validity of said title, claim or incumbrance of the said J. T. Long and W. E. McKenzie. Fourth. Your orator calls on each of said claimants above named, or described, to set forth and specify his title, claim, interest or incumbrance, and how and by what instrument, or instruments, the same is derived and created. Fifth. Your orator alleges that both of the above named defendants are over twenty-one years old and are non-residents of Alabama, residing at the place named in the introductory part of this bill just before paragraph one.' Sixth. Your orator further shows that he derives his title-to said property in the following manner: The former owner of said land, M. S. Bickford, together with his wife, C. S. Bickford, on Feb, 27, 1896, entered into a contract with orator to' convey said land to orator. This contract was executed on March 13, 1896, by orator paying out of his own money to said Bickford the consideration agreed upon and specified in. said contract and by Bickford’s executing, according to orator’s instructions, a deed to said land to one Perry Duncan. who did not contribute any thing toward said purchase money. It had been agreed between orator and Duncan that orator was to buy and pay for the lands with his own money, but take the title in the name of Perry Duncan, who was for the convenience of orator to hold the title to said lands for the benefit of orator and as a mere respository of said title; that said Duncan would.execute deeds to such persons as orator should sell lands to, whenever called on by orator to do so, that in order to facilitate the sales of such lands as orator should take in the name of said Duncan, orator had said Duncan to execute the powers of attorney dated and recorded as follows (Here follow dates of powers of attorney and books wherein they axe recorded) Orator further alleges that the legal title to the land purchased from said Bickford ivas taken in the name of said Duncan under aforesaid arrangement and that said Duncan had no interest whatever in said lands but held the title to the same for the benefit of orator under aforesaid agreement. Seventh. Your orator further shows that on Sept. 16, 1903, said Perry Duncan conveyed by quit claim deed said land to one W. E. McKenzie, as per deed of record in deed Book, 105, N. S. p. 432 of Mobile County Records, and that on Sept. 16,1903, the same day said McKenzie conveyed by quit claim deed the same land to one J. T. Long, as per deed recorded in said deed book 105, N. S., p. 431 of Mobile County Records.” The bill then contains the usual prayers, in such cases, for process and, as stated in opinion, for relief. To this amended bill, defendant Long filed the following grounds of demurrer: 1. Said amended bill is inconsistent with itself and ambiguous in that the original bill avers that the complainant Mechem owns the land therein described, while the amendment shows that he does not. Second. Because the original bill shows that the complabiant owns the lands therein described, while the amendment shows that Perry Duncan or his grantees own the legal title, and that Mechem does not. wherefore said bill is ambiguous and inconsistent with itself. 3. Because the amended bill shows that Perry Duncan became the owner of the property therein described, and that no valid trust or agreement constituting a trust was made by which “said Duncan had no interest whatever in said lands, but held the title to the same for the benefit of orator. Fourth. Because the amended bill is incomplete in essential particulars, in that it shows the existence of certain powers of attorney claimed to be material to the case made by the bill, but does not allege the substance thereof or set them out so that the court may be informed thereof. This Court should not be forced to hunt up the records in another office to ascertain the materiality and effect of said powers of attorney. Fifth. Because, said agreement alleged to have been had between complainant and said Duncan is not shown to be in writing and is therefore void under the laws of the State of Alabama. Sixth. Because construing the bill as amended most strongly against the pleader, said agreement between complainant :and said Duncan was not in writing and was therefore Aroid under the laws of Alabama. Seventh. Because the bill as amended does not allege any fraud or deceit existing at the time said title Avas vested in Duncan. Eighth. Because said amended bill alleges no facts showing a resulting trust enforceable in equity. Ninth. Because said amended bill shows that complainant caused the titlé of record to be placed in said Perry Duncan and thereafter procured and recorded certain poAvers of attorney by said L>uncan as principal and apparent OAvner, and complain ant as agent, and then thereafter this defendant purchased by means of conveyance from Perry Duncan, and does not show any facts charging the plaintiff with notice of any infirmity in said Duncan’s title. Because of these actual representations of Duncan’s ownership made by complainant, no notice, constructive or otlierAvise, is chargeable against this defendant. Tenth. Because the bill as amended states facts showing that complainant is estopped to deny the title of Perry Duncan and his grantees.” The defendant also filed the following plea. “Said Perry Duncan made no agreement in Avriting Avith the complainant such as is set up in the bill of complaint, nor Avas any such agreement made for said Duncan by any person duly authorized thereto in writing. Nor did he make or authorize any person for him or in his name to make any such agreement as is set up in said bill of complaint in reference to the alleged description in said bill, and this defendant avers that said alleged agreement in reference to said land is void under the statutes of Alabama, and cannot be enforced against said Perry Duncan or his grantees.” The court rendered an interlocutory decree, overruling each ground of said demurrer and overruling the,plea. set forth above. From this interlocutory decree, defendant appeals, and assigns the action of the court in overruling said plea and in overruling said demurrer, and each ground thereof, as error; the first assignment- of error being the overruling’of the plea; the second assignment, the overruling of the entire demurrer; the third, the overruling of the 1st ground; fourth, of the 2nd ground; 5th, of the 3rd ground; 6th, of the 4th ground; 7th, of the 5th ground; 8th, of the 6th ground; 9th, of the 7th ground; 10th, of the 8th ground; 11th, of the 9th ground; and the 12th assignment of error being the over-ruling of the 10th ground of the demurrer to the amended complaint.</p> <p>There- Avas a clear cut attempt to establish an express trust. Section 1041 requires that such trusts be in writing. Section 1041 nullifies all express trusts not in Avriting. An implied or constructive trust is one not created by the parties at all, but created by the conscience of the equity court.- — ■ Potter v. Clapp, 96 Am. St. Rep. 323-8; Brock v. Brock, 90 Ala. 86.</p> <p>The amended bill is inconsistent with Itself in that it -shows that Mechem is the owner of the land, and, also, it. sIioavs that the defendant, through mesne conveyance from Duncan, owns the property, but sets up, or attempts to set up, a trust, under Avhich complainant claims to be beneficiary. A trustee may pass, by conveyance, the legal title, whether according to the trust or in violation thereof. Amberson v. Johnson, 29 So. Rep. 176 (Ala.) ; Huckabee v. Billingsly, 16 Ala. 414; McBrayer v. Cariker, 64 Ala. 55.</p> <p>The Statute of Frauds applies. — Bolling v. Mimchus, 65 Ala. 561; Bailey v. Irwin, 72 Ala. 505; Btrouss v. Biting, 110 Ala. 139; Loveless v. Hutchinson, 106 Ala. 417, 424; Patton v. Beecher, 62 Ala. 587; Lehma^i v. Lewis, 62 Ala. 129.</p> <p>If the allegation concerning the powers' of attorney is essential, the allegation should be made in such form that the court should be able to judge of the effect of the powers of attorney from a reading of the bill. The court is under no obligation to seek these matters elsewhere. The bill as thus framed is incomplete.</p> <p>Tlie bill alleges that complainant owns the land; that the legal title is in respondent who holds it in trust for complainant; in equity, the cestui que trust is considered the owner. The trusts of lands results by construction to him from whom the purchase money moves. — Lehman v. Morris, 62 Ala. 131; Tillman v. Murrell, 120 Ala. 244.</p> <p>Code, Sec. 1041 expressly “excepts such trusts as result by construction of law.” So such a trust as is alleged in the hill is not required to be evidenced by writing. The bill should state the facts, not the evidence necessary to establish them. ■</p>

<p>Appeal from tlie Circuit Court of Conecuh.</p> <p>Tried before the Hon. J. C. Richardson.</p> <p>This was a statutory action of ejectment brought by the appellee, Mary R. Smith, against George M. Carter, J. J. Carter and Ella. V. Carter, to recover certain lands specifically described in the complaint; the court based its claim of title, and its right of recovery of the lands in suit to a sheriff’s deed purporting to' convey said lands, which deed was made to the plaintiff as purchaser at the sheriff’s sale of said lands under an execution issued under a judgment recovered against one A. R. Carter.</p> <p>The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the general affirmative charge in her behalf, to the giving of which charge, the defendant duly excepted. There were verdict and judgment for the plaintiff.</p> <p>The defendant appeals and assigns as error the several rulings of the trial court, to which exceptions were reserved.</p> <p>To recover under a sheriff’s deed, “plaintiff must show or prove, a judgment, levy, sale, deed and possession by defendant in execution at the time of the levy and sale.— Elliott v. Dyche, 78 Ala. 150. Plaintiff must show that the defendant in the judgment, to whose title he succeeds, has an estate or interest in the lands which was subject to levy and sale. — Mickle et al. v. Montgomery, 111 Ala. 115; Id. 418; Ala. Min. Land Go. v. Baker, 1Í9 Ala. 351.</p>

Tried before the 1-Ion. A. D. Sayre. This was an action of trover brought by the appellees, Mrs. Allie, Nellie and Sarah Johnston, against the appellant, the Jesse French Piano & Organ Company, to recover damages for the alleged convei’sion of a piano.

<p> Common Law Action of Ejectment. </p> <p>1. Husband and wife; power of wife to alienate lands, includes power to mortgage. — The general power of a married woman to alienate her lands with the assent and concurrence of her husband, as conferred by the act approved Feb. 28th, 1887, “To define the rights and liability of the husband and wife,"’ confers upon a married woman the unlimited power of alienation, so far as the character of the conveyance is concerned, and includes the power to execute a mortgage or deed of trust to secure her .debts.</p> <p>2. Conveyance by corporation; effect of corporate seal. — In the execution of a written instrument by a corporation, the corporate seal attached to such instrument is a sufficient testimonial of the authority of the person who signs the corporate name as its president to so execute the paper.</p> <p>3. Deed of trust; presumption after foreclosure. — Where a deed of trust given to secure the payment of a debt recites that upon the written request of the beneficiary after default in the payment of the debt, the trustee should take possession of the property and sell it in execution of the trust, if the debt secured by the deed of trust is transferred by the beneficiary, and subsequently upon default in the payment of the debt, the trustee executes the trust by selling the property, and at the sale the assignee of the original beneficiary becomes a purchaser, to whom the trustee executes a deed, it will be presumed that the execution was according to the request of the assignee properly and regularly made known to the trustee.</p> <p>3. Husband and wife; res adjudicata as to mortgage being given to secitre husband’s debt. — Where in a suit in equity one of the issues involved is whether a mortgage executed by a married woman, conveying her separate property, was given to secure the debt of her husband, and in the decree rendered it was ascertained that said mortgage was not given to secure the husband’s debt, such question becomes res adjudicata■ as between the mortgagor and persons claiming under the mortgage; and the fact that such decree was appealed from and was pending at the time of an action of ejectment for the lands included in the mortgage, but was not superseded, does not authorize the introduction in the ejectment suit of evidence touching the issue as to whether the mortgage was given to secure the husband’s debt, which was adjudicated by the decree in the chancery court; but a record of the proceedings in said chancery suit is admissible in evidence.</p>

Tried before the Hon. A. H. Alston. This action was brought by the appellant, Louis Kaufman, against William Richardson.

Heard before the Hon. W. L. Parks. This was a bill in equity filed by Whiteford Mauldin and Mary Mauldin, minors, by their guardian and next friend, L. C. Mauldin, against W. G. Matthews, S. M. Blackmon, W. B. Sanders, R. F. Harper, J. N. Mosely, Jasper Garner, J. N. Sandsbury, D. G. May and W. R. Painter, for the purpose of bringing Matthews, their guardian, to a settlement.

Tried before the Hon. Thomas H. Smith. The bill in this case was filed by the appellants -as creditors of the firm of Barley and Matldns, against the appellees, Eugene A. Barley and Lamar Matkins and Maggie Walston.

<p>Appeal from the City Court of Bessemer in Equity.</p> <p>Heard before the Hon. B. C. Jones.</p> <p>The bill in this case is distinctively one for the dissolution and settlement of a copartnership between the complainant, M. M. Higgins and the defendant, George A. Gillett. •</p> <p>It is averred that on or about the 1st day of August, 1904, that said George A. Gillett and complainant entered into a partnership known as the Bessemer Paint & Wall Paper Company, and that they were each one-half owners of' the business and stock of goods, worth between seven ¡hundred and a thousand dollars, and that they operated said business until on or about the 25th of August, 1904, at which time complainant was ejected and forced out of the partnership store under threats of violence, accompanied with weapons, by defendants Malcolm and Will Chandler, who claimed that they had purchased the goods and business the day before from defendant, G. A. Gillett, who assisted said Chandlers in the ejection of complainant, thereby keeping him out of his place of business, and said stock of goods and business out of his possession, depriving him of any interest. therein.</p> <p>It is further alleged that said Chandlers with the assistance of said Gillett have taken charge of said store and business, under the name of Chandler Brothers, and have bought another stock of goods and mixed and mingled them with the stock of goods of complainants firm; that the said Gillett is staying in the store assisting in carrying on the business, and refuses to render any accounting of the ,said business or stock, or of the accounts owing the firm, and refuses to. surrender any funds or goods to complainant or to account to complainant for the same, and he believes-that defendants are'in collusion with each other in depriving complainant of his business and any interest in said partnership.</p> <p>It is further charged that said firm of which plaintiff was a member, kept .a set of books, showing the debits and credits of the firm, and defendants refuse to allow complainant the possession or inspection of said books; that said business was profitable and was conducted on a paying basis, and by reason of his ejection therefrom, he has been greatly damaged.</p> <p>The prayer of the bill was for the dissolution of said firm by a proper decree of the court; that defendants be required to produce and file with the register of the court all papers and books pertaining to the business of said firm; that they be required to make a full list of the stock on hand at the time said Chandlers claim to have bought out said business; to show what-moneys have been collected on accounts due said firm; that the defendants be brought to an accounting between the complainant and said Gillett, etc., etc.</p> <p>By a supplemental bill filed on the 7th of September, 1904, the complaint charged that defendants were daily disposing of said stock of goods, and if allowed to proceed, the entire stock will soon be disposed of, and irreparable injury will be inflicted on complainant unless said ¡stock of goods is taken into the custody of the court. It is also charged that, defendants are each worth less than their statutory exemptions under the laws of this State, and prayed for the appointment of a receiver to take possession of said partnership property, to make an accounting of all things pertaining to said partnership and wind up its affairs under the directions of the court.</p> <p>The defendants in answer do not deny that the copartnership between complainant and said Gillett existed as alleged in the bill. They allege that about the 22nd of August, 1904, they bought and took possession of said stock of goods, though they do not allege from whom, and ran the business since that time; that since then they removed a stock of wall paper, etc., to the place of business of said Bessemer Paint & Wall Paper Company, worth about $800.00, and had bought and added other goods to about $750.00, and the value of the whole stock was worth about $1,500.00; that all the stock they purchased from said Wall Paper Company, and all they added thereto, including horse and wagon, had been seized by the receiver, which will work irreparable injury to the defendants.</p> <p>It appears that the court appointed a receiver as prayed for, first requiring the plaintiff to execute a bond in the sum of $500.00, payable to defendants, conditioned to pay them any damage Avhich any person may sustain by the appointment of a receiver, if said appointment .should be vacated. The receiver Avas also required to execute a bond properly conditioned payable to the register of the court, which bond was duly executed and approved.</p> <p>The defendants moved the court on the 12th day of September, 1904, for reasons set out in their motion, to vacate and annul the appointment of the receiver, Avhich was set doAYn to be heard on the 15th of the month and which on the hearing Avas overruled.</p> <p>The defendants appeal, and assign as error the decree of the court appointing the receiver, and the decree of the court refusing, and overruling the motion to vacate and annul the appointment of the receiver.</p> <p>Section 799 of the Code provides for the appointment of a receiver upon application in writing, and this application we insist should be made independent of the bill, and there Avas no application made in the case at bar. The appointment of the receiver was made in this case Avithout notice to the respondents, and that too without any emergency or necessity therefor being shoAvn.</p> <p>The original bill and the supplement thereto, together with tihe affidavits in this case show that the complainant Avas entitled to a dissolution of the partnership and to an accounting between himself and Gillett.- — Moore v. Price, 116 Ala. 247.</p> <p>Wherever a bill is filed seeking a dissolution of a partnership, and it- satisfactorily appears that the complainant Avill be entitled to a decree for dissolution, a receiver will be appointed of course. The reason being that the same causes which would justify a decree for dissolution generally justify the appointment of a receiver. — Bard v. Gingham, 54 Ala. 466.</p> <p>There can be no question in this, but that this cause would fall within the rule and the circumstances clearly bear it out, that notice necessary to the defendants, praying for the appointment of a receiver and the affidavit attached to the supplemental bill go to show that these defendants were insolvent and they were disposing of the property belonging to the Bessemer Paint & Wall Paper Company at the time the supplemental bill was filed and in all cases, such circumstances dispense with the notice. — Irwin v. Everson, 95 Ala. 64; Ashurst v. Lehman, Durr & Go., 86 Ala. 370; Word v. Word, 90 Ala. 84 ;Heard v. Murray, Dibbrell & Go., 93 Ala. 127; Butts v. Broughton, 72 Ala. 295; Hendrix v. Amr. Freehold Land Mort. Go., 95 Ala. 314.</p>

Tried before the Hon. J. A. Bilbro. This action was brought by appellee, Robert N. Bell, ■as trustee for the benefit of Knight, Henry & Co.,, a domestic corporation against appellant John H. Snead. With the exception of those counts of the complaint which were withdrawn by the complainant, demurrers of defendant were sustained to all the counts except the 10th and 11th, which are as follows: “10.

Tried before the Hon. A. D. Sayre. This action was brought by the appellee, Mrs, D. E. Taylor, against the First National Bank. The purpose of the suit and the facts of the same are sufficiently stated in the opinion. The cause was tried by the court without the intervention of a jury, and upon the hearing of all the evidence, the court rendered judgment in favor of the plaintiff. The defendant appeals and assigns as error the rendition of such judgment.

Tried, before the Hon. John C. Anderson. This was an action on the case brought by the appellees, Henderson & Bruce, against the appellant, John J. King, to recover damages for the defendant’s taking possession of a mule from the tenant of the plaintiffs, and thereby preventing the plaintiffs from enforcing their lien on said mule, and collecting their debt.

Heard before the Hon. A. D. Sayre. The bill in this case was filed by the appellant, The Montgomery Light & Water Power Company, against the appellee, The Citizens Light, 1-Ieat & Power Co., and prayed for an injunction “restraining the Citizens Light, Heat & Power Co., its officers, agents and employees, from stringing its wires, or doing, or performing any other act contemplated by the resolution in said bill set forth, and upon a final hearing * * * * * to make said…

Tried before the Hon. Chas. A. Senn. This was án action brought by the appellant, Wm, D. Walter, against the Alabama. Great Southern R. R. Company to recover damages for loss of and injury to freight which had been shipped over defendant’s railroad.

Heard before the Hon. Ti-iomas H. Smith. The bill in this case was filed by the appellant, Emily C. Lyon against George E. Arndt, and was filed under the statute authorizing the filing of bills in chancery to quiet title, and to determine claims for real estate. In the bill the complaint averred that she was in the actual, peaceable possession of the lands described, claiming to own and did own the same.

Heard before the Hon. W. L. Parks. The appeal in this case is prosecuted from a decree granting the relief prayed by the complainants in a bill filed for the purpose of having lands sold, and the proceeds divided between the complainants and respondent, who were tenants in common of said lands. The facts of the case are sufficiently stated in the opinion. Cited.

<p> Bill in Equity to Determine Claims to Real Estate and to Quiet the Title thereto. </p> <p>1. Statutory till to quiet title; what possession necessary to maintain it. — To maintain a bill under the statute to compel determination of claims to real estate and to quiet title thereto, it. must be shown that complainant was in the peaceable possession of said property as contradistinguished from contested or disputed possession.</p> <p>2. Same; same; sufficiency of evidence. — In such cases where the evidence shows that the land in question was wild and uncultivated land; that the defendant claims under a deed; pays taxes thereon; has kept trespassers off said property, and has taken tan bark therefrom, it cannot be said that the plaim tiff is shown to have such peaceable possession as entitles him to relief.</p>

Tried before' the Hon. A. A. Coleman. This Avas an action brought by the appellee against the appellant, Birmingham Railway, Light & Power Company, to recover damages for personal injuries. The complaint contains 5 counts.

Heard before the Hon. John C. Carmichael. The bill in this case was filed by the appellant against the appellee. In addition to the facts stated in the opinion, the bill further states that the defendant, Bad-ham, has commenced suit against the complainants in the city court of Bessemer on one of said purchase money notes and has commenced suit in the circuit' court of Jefferson county to enforce the collection of another of said purchase money notes.

Heard before the Hon. Thomas H. Smith. The original bill in this case was filed by Stern & Marks, against the Mobile Lodge, No. 108, Benevolent and Protective Order of Elks, The D. J. McDonald Stone Company, S. D. Copeland and Zacbary & Zachary and it is alleged in said bill that said Benevolent Order of Elks as owners, had contracted with Zachary & Zachary as contractors, to erect a certain building furnishing material for same on certain premises in the City of Mobile for…

<p> Action for Deceit in the Sale of Merchmclise. </p> <p>1. Pleading; counts ex delicto and ex contractu cannot Toe joined in the same complaint. — A count for deceit in tbe-sale of merchandise cannot be joined with a count for the breach of a contract of sale.</p> <p>2. Agency; what facts sufficient to authorize the inference of agency. — Proof that an alleged agent sold merchandise and that thereafter without any communication between the purchaser and the alleged principal the merchandise was shipped by the alleged principal to the purchaser, while not sufficient to justify a witness in testifying as a matter of fact that the alleged agent was the agent of the principal, is sufficient to permit the inference by a court or jury that the alleged agent was the agent of the alleged principal and was acting as such in the transaction, and therefore in a suit to recover for deceit practiced in the sale of said merchandise it is error to exclude the representations of such agent made to the purchaser as to the. quality of the merchandise so sold.</p>

<p>Appeal from the City Court of Anniston in Equity.</p> <p>Heard before the Hon. Thomas W. Coleman, Jr.</p> <p>The facts essential to an understanding of the decision on this appeal may be summarized as follows: Manuel Adkins, father of appellees, died about the 31st of May, 1902, seized and possessed of the lands which are involved in this litigation. Adkins left a will, or a ducoment purporting to b'? a will, in which one T. R. Sparks, was named as executor. The will was attacked by David and Josie Adkins, appellees, and was by the honorable city court of Anniston, on to-wit, the 27th day of February, 1904, decreed to be mill and void and of no effect, and the probate of said alleged will, and the proceedings had thereunder, were set aside, cancelled and annulled, held for naught. Prior to this adjudication by the learned court, however, said Sparks applied for the probate of the alleged will and obtained letters testamentary as the executor of the last will and testament of Manuel Adkins. On the 29th of September, 1903, said Sparks, as executor, filed a petition in the probate court of Calhoun county, praying for a decree of sale of the property for division and payment of debts. The petition of said Sparks was granted on November 2nd, 1903, and on the ■18th day of January Sparks sold the real estate involved in this suit to J. H. Humphries, appellant here. On the 20th day of January, 1904, Sparks reported the sale to the probate court, and on the 30th of the same month the sale was confirmed and a deed was made to appellant by said Sparks, .as executor. On the 7th day of March, 1904, an ejectment suit was instituted by appellees against appellant for the lands, and on the 23rd of June, 1904, a judgment was obtained by them awarding them the lands. After the recovery of this judgment, the defendant in ejectment suit, J. H. Humphries, filed a bill in the present case, averring the facts as above set forth, and prayed for an injunction restraining the plaintiff in the ejectment suit from further prosecution of said suit, and from the enforcement of the judgment against the complainant for the possession of said premises, and that upon a final hearing said injunction be made perpetual.</p> <p>Upon the filing of the bill a temporary injunction was issued. The defendants demurred to the bill setting up in various ways the ground that the complainant waited too long before filing the present suit, in that he had allowed the ejectment suit to proceed to judgment without application for equitable intervention. The defendant also moved to dismiss the bill for the want of equity, and further moved to dissolve the injunction for the want of equity in the bill, and because he had waited until after the rendition of the judgment to ask for equitable relief. On the submission of the cause upon the motions and the demurrer, the chancellor rendered a decree holding that the bill was without equity, and sustained the motion to dismiss the bill and to dissolve the injunction. From this decree the complainant appeals, and assigns the rendition thereof as error.</p> <p>A court of equity will grant relief by injunction to a complainant who had an equitable .defense to an action at- law, but could not interpose the same on account of its being equitable in its nature. — Galloway v. McElroy, 3 Ala. 406; Nelson v. Dunn, 15 Ala. 514; Howell v. Motes, 54 Ala. 1; Morgan v. Lehman Durr, 92 Ala. 442; Johnson v. Christian, I2S U. S. 374-381-2; Grim v. Hancllcy, 94 U. S. 652; High on Injunctions, Sec. 86; 1 High on Injunctions, 2nd Ed. 87; Hubbard v. Easmon, 93 Am. Dec. 467; Jarratt v. Goodnow, 32 L. -B. A., 321 note.</p> <p>Conceding that appel-. lant has an equitable title, yet having had knowledge of it pending the final settlement of the ejectment suit, to which he was a party and actually resisted, it is too late for him to come in now seeking equitable relief. The Alabama authorities are thoroughly committed to the proposition that a party having an equitable defense when an action at law is pending against him must go into equity before the conclusion of the action at law, if he has knowledge of his equitable remedy. He cannot sit down and speculate upon the results in the action at law, accumulating costs and protracting the litigation, and then come into equity and ask relief of that forum. Hooper cG Nolan v. Brichfield, 138 Ala. 423; Moore v. Haggard, 51 Ala. 525.</p>

<p>Appeal from the Chancery Court of Mobile.</p> <p>Heard before the Hon Thomas H. Smith.</p> <p>This action was commenced by the Mobile Land Improvement Company by a bill in Chancery against- H. B. Gass, and was subsequently amended as to make several parties, who purchased the land involved in this suit from him, defendants. The bill alleged that the complainant was a corporation under the laws of Alabama, and that the defendant Gass ayus the secretary and treasurer of the company and also a director from the 16th day of April, 1889, to the 30th day of April, 1900; that some of. the directors of the company resided in Michigan, and some in Mobile, Alabama, and that the residences of the stockholders were similarly distributed; that on the 18th day of November, 1896, the board of directors held a meeting in Flint, Michigan, and adopted a resolution authorizing the president to transfer to the defendant, Gass, three parcels of land belonging to the corporation, each having a front of 50 feet on Michigan Avenue, upon condition that he erect upon each parcel of land a two-story dwelling.house to cost at a fair value not less than two thousand dollars, and that no d ied should be given him until he had begun the erection of a house on the land covered by it. It alleges that the resolution as spread upon the minutes, hoAvever, purported to grant five parcels with frontage of 100 ft. each instead of three lots of land. The bill alleges that there was present at said meeting F. A. Platt, M. P. Cook, I. W. Whitehead and the defendant, H. R. Gass, and that, except for the the presence of said Gass there would not have been,a quorum of the directors. It alleges that defendant took possession of the lands described in the resolution as spread upon the minutes, and proceeded to brect houses -upon them with his own means; that when the bill of complaint veas filed he had erected a house upon each of four of the parcels of land, but that each house only occupied a. space.of fifty feet on Michigan avenue; that all of the houses but one had been disposed of to other defendants for a valuable consideration and without notice, and that said Gass had never rendered any account to the company of the profits arising from the sale of the buildings or lots upon which they were erected. That Gass from time to time obtained deed executed by the company through F. A. Platt, its president, and himself as secretary of the company. The bill further alleges that the company had not complied with the provisions of law authorizing it to- hold directors’ meetings outside of the state and that in April, 1900, the stockholders had repudiated the transaction, and had demanded the cancellation and surrender of the conveyances made to Gass.</p> <p>The bill prays that the defendant, H: R. Gáss, be required to surrender the deeds made to him into- the registry of the- court to be cancelled, but that, by its decree, the court protect the title of the other defendants who purchased three of the lots in controversy, and for general rv-lief.</p> <p>The bill attaches copies of each of the four conveyances as exhibits. Each of these conveyances recites that “Whereas the board of directors of the Mobile Land Improvement Company did, at a meeting in the City pf Mobile, on to-wit the 16th day of February, 1891, adopt the following resolution, viz.: ‘Be it resolved, that the lands of this company shall be sold as opportunity may afford at prices satisfactory to th'e president or vice-' president and secretary of the company, and said officers are authorized to- make deed to- purchasers in such form and with such conditions and covenants respectively as they may deem proper.’ ” Each conveyance is executed under the corporate seal of the company.</p> <p>Decree pro confesso was rendered against the defendants other than Gass, but the defendant Gass answered the bill admitting the corporate capacity of the company, and that it had power to purchase, own, improve, rent' or sell real estate, or interest in real estate, to conistruct buildings upon real estate, and many other powers. He admitted that the appellant had purchased a large body of real estate, and had adopted a system of' by-laws for the regulation and conduct of its affairs. He also admits the election of himself as secretary and-treasurer and director of the company, and that he retained these offices down to the 30th day of April, 1900, and, further, that some of the directors resided in ‘ Michigan, and some in Mobile, Alabama.. The defend: amt by way of pleas in his answer, sets up in detail a number of meetings of the board of directors held by the ' company in Michigan prior to the meeting of November-18, 1896, and the fact that many matters of importance to-the company were authorized at such meetings, and, further shows that practically all of -the ifiipo-rtant business of the company was conducted through meetings of the boards of directors held in Michigan, and that this was well-known to all of the stockholders of the company prior to November 18, 1896. He further attaches a map of the lands of the appellant, and shows that they were vacant lands without houses on them, and constituted an open, unfenced, uncultivated, plain without streets or avenues of any kind, and that complainant purchased this tract for the purpose of laying it off into city lots, and selling them as residences at a profit; that it had the lots plotted and advertised extensively for sale. That prior to November 18, 1896, the _ company ■ had this land in- the hands of several agents, and had been making strenuous efforts to sell as many of these lots as it could, but had failed to- make any sales; that all of the stockholders thought it would greatly enhance the value of the property and facilitate the sale of said lots to get some one to build upon one or more of them, and reside there, believing this would induce others to purchase lots and build residences upon them, and thereby greatly enhance the value of the entire property. With this view the directors at a meeting in Flint, Michigan, in April, 1901, authorized their president to enter into negotiations with a Mr. King, Mr. Taylor and Mr. Posey, by which the company' was to give them one lot each on Michigan Avenue, and to build a plank sidewalk in front thereof, and guarantee the extension of the water mains to the lots, selected, if they would, within a specified time, put buildings on these lots to cost not less than twenty-five hundred dollars; and pay fifty dollars towards laying the water mains; that the company attempted to induce these parties to accept, the lands upon these terms, but failed; that at a meeting held March 7, 1893, a committee that had been previously appointed, reported on the feasibility of a sale of 400 lots on the company’s tract on Michigan Avenue, and recommended that three houses should be erected thereon at a cost of not less than eleven thousand dollars; that each purchaser was to obtain a lot without location, and that the location should then be determined by lot, so that three of the jjurchasers would obtain á house and lot by his purchas; ; that the sale was had, but the company did not succeed in selling any of the lots. On account of the long continued inability of the company to dispose of any of its property at what it deemed proper prices, or to gvt any residences constructed thereon, the matter of devising some method to facilitate the sale of lots became a constant subject of discussion among the stockholders, and sometime in 1895 the defendant suggested to some of the directors that to locate residences upon the property he would build, at his own expense and dispose of, to bona fide residents, five residences upon the property, if the company would give him ten lots, or their equivalents, in the tract, he to sell the houses without profit and to have the lots not built upon as compensation for his work and risk. This suggestion was considered by all of the directors who discussed it as the most feasible plan that could be suggested to increase the value of the company’s property, but the suggestion was not carried out until 1896. at which time tb? proposition was accepted and a resolution passed giving him ten lots upon the terms set out in the bill of complaint; that the action of the board of directors in entering into the agreem'mt was known to nearly all of the directors of the company and to many of the stockholders, and that the defendant spoke to a number of them himself about the matter. In the early part of 1897 he commenced the erection of a house upon one of these lots, and when it was completed he took photographs of it, and showed it to several members of the directory; he sent deeds to the president of the company for the parcel of land upon which this house ivas erected consisting of 100 foot front on Michigan Avenue, and after the deed was obtained he made 'efforts 'to sell this property at the actual cost to him of the building without any compensation for the lot, or for his time, trouble and risk in building and selling the property. He finally sold it to a prominent citizen of Mobile, who occupied it as his residence. As soon as he succeeded in disposing of this building, defendant commenced the erection of another building upon another of the parcels which the company had agreed to convey to him and obtained a deed for that parcel and when that building was completed, he took active steps to dispose of it without profit to himself, and succeeded in selling it to a prominent citizen who mad:' it his home, and as soon as he did so, he immediately commenced the erecton of still another building upon another of said parcels, and obtained a deed to that,, and when it was completed took active steps to sell that building without profit to himself, and succeeded in selling it to a prominent citizen who made a residence of it, and he then commenced the erection of the fourth building upon another parcel, and obtained a conveyance of that, but, before he completed that building the bill of complaint in this case was filed. That each of said buildings was so situated that they could be seen by any person passing complainant’s land, and so as to be seen by any person passing up and down the principal residence street in tb;-' City of Mobile. That each of said buildings cost the defendant between three thousand and four thousand dollars, and that the construction of said several buildings did enhance the value of the entire tract- of land, nearly one hundred per cent, over what it would have been worth except for the construction of said buildings and the occupation thereof by citizens as residences. The answer sets up that subsequent to that several meetings of the directors and of the .stockholders were had without repudiating said transaction, but that 'finally it was resolved by the board of directors “that they repudiated and disaffirmed the transaction heretofore made with H. R. Gass, whereby certain property of the company was improperly conveyed to said Ga,ss except as to .such of said lots that have been sold by said Gass, and except as to lot 18, block 20. The attorney of the company is hereby instructed to commence proceedings for the recovery of said real property, if said Gass refuse, upon the written demand of the company to reconvey said property to the company.” The defendant claims that under the facts set up in his answer the company has ratified the transaction made in the first instance, and that in addition thereto- it has ■allowed itself to become estopped from repudiating the same. Several portions of the answer are made pleas to the bill of .complaint.</p> <p>Upon the submission of the cause for a hearing upon the sufficiency of the pleas, the Court rendered a decree sustaining said pleas. Upon the final submission of the cause upon the pleadings and proof, the Chancellor ren-dered a decree denying the relief prayed for, and ordering the bill dismissed. The complainant appealed, and assigned as error the interlocutory decree of the Chancellor holding the pleas sufficient and the rendition of the final decree denying the relief prayed for and dismissing the bill.</p> <p>The fact that the director of a corporation participated in a meeting of the directors in which a contract was made by the corporation with himself does not vitiate the contract.— Cory v. Wadsworth, 118 Ala. 488; Anderson v Bulloch County Bank, 122 Ála. 288</p> <p>A corporation may ratify unauthorized acts done in its name by its officers and estop itself from asserting relief upon the ground that the officers had no such authority. — Bibb v. Ball d Farley, 101 Ala. 95; Mobile & Montgomery Rioy Co~. v. Gilmer, 85 Ala. 434; Ala. Gt. Southern R. R. Go. v. South & North Ala. R. R. Go., 84 Ala. 570.</p> <p>A ratification of part of an unauthorized, act operates as a ratification of the whole. — American Freehold Land & Mortgage Go. v. Dykes, 111 Ala. 190; Gaines v. Miller, 111 TJ. S. 398; Bingham v. Palmer, 3 Allen 453; Shoniger v. Peabody, 17 Atl/278; Everts et al. v. Selover, 7 N. W. 225; Wheeler é Wilson Mfg. Go. v. Aughley, 22 Atl. 667; Taylor & Meyers v. Conner, 41 Miss. 722.</p> <p>A corporation that has obtained and retained the benefits of an unauthorized act is estopped from repudiating the act. — 111 Amer. & Eng. Encyc. of Law, 478; 19th Vol. Century Dig., page 2351 §264; Mobile cG Montgomery Rwy. Go. v. Gilmer, 85 Ala. 434; Ala. Gt. So'wthern R. R. Co. v. South & North Railroad, 84 Ala. 570.</p>

<p> Action for Breach of Official Bond of Register in Chancery. </p> <p>1. Official bonds; payable and conditioned as required by statute regardless of stipulations in bond. — A bond intended by tbe obligor thereon to be the official bond of a public officer, and under which said public officer acts, is, by force of the statute (Code § 3070, 3087, 3089) the official bond of such officer, and in legal contemplation and effect such bond is payable and conditioned as the statute' requires the official bond of such officer to be payable and conditioned; and it is, therefore, of no consequence that the bond so executed is payable and conditioned differently from that which the statute requires for official bonds, or that the conditions expressed in the bond may not have been broken by the officer.</p>

<p>Appeal from the Circuit C'ourt of Blouut.</p> <p>Tried before the Hon. J. A. Bilbro.</p> <p>The facts of the ease are sufficiently stated in the opinion.</p> <p>Cited Publishing Go; v. Press Association, 102 Ala. 475; Railroad Go. v. Christian, 82 Ala. 307; Railroad Go. v. Branmoffi, 96 Ala. 461.</p> <p>Cited Davis v. Bcclsole, 69 Ala. 362-364; Wihorion v. King, 69 Ala. 365; Gray v. Southern Ry. Go., 116 Ala. 654-655; Guscott v. Roden, 112 Ala.. 632-636; Bolin v. Sandlin, 124 Ala. 578-580.</p>

<p>Appeal from the Chancery Court of DeKalb.</p> <p>Heard before the Hon. W. H. Simpson.</p> <p>In this case, the International Trust Company filed a bill to foreclose a certain deed of trust executed by the Alabama Kaolin Company. The deed of trust was ordered foreclosed, and the court rendered an order for the sale of the property by the register. In accordance with the order of sale, the property was sold by the register, the appellants in this ease becoming the purchasers. After this sale the Alabama Kaolin Company and others filed objections to the confirmation of the sale, and at the same time also filed an application that the said sale be set aside and the property ordered resold. The petitioners in said application setting out the fact that the property was sold at an enormously inadequate price, and stating to the court that they would give greatly more than was paid for at the sale, and offered to make a substantial deposit with the court to show their good faith. Upon the hearing of the exceptions to the confirmation of the sale and the application for a resale of the property,, the court ordered that the sale theretofore made by the register be set aside, and that a new sale be made, at the same time requiring the petitioners to make a deposit of f4,000 with the register. From this order of the court the present appeal is prosecuted.</p> <p>Cited Parker v. Bluff tew, Or. Whl. Oo. et al., 108 Ala. 140; Littell v. Zuntz, 2 Ala. 256; Glennon v. Mittenniglvt, 86 Ala. 455; Holly v. Bass, 68 Ala. 206; McLaughlin v. Bradford, 82 Ala. 431; Ray v. Womble, 56 Ala. 32; Griggv. Banks, 50 Ala. 311; Cramer v. Watson, 73 Ala. 127; Pate v. Hinson, 104 Ala. 599.</p>

Wm. S. Anderson. Asbel Hubbard, a resident of Mobile, instituted a suit against the defendant in the circuit court of Mobile county, Alabama, on the 26th day of September, 1902, by having a summons issued by the clerk on said last named date. This summons was never served, for the reason that there was no person in Mobile county upon whom it could be served.

Tried before the Hon. William H. Thomas. The appellee in this case, William Kelly, was arrested and fined by the recorder of the City of Montgomery for issuing trading stamps, checks or devices of like kind, to his customers, without having obtained a license therefor, as provided by an ordinance of the city council of Montgomery. He appealed to the city court of Montgomery, where the case was tried de novo.

<p> Action Upon Promissory JSfote. </p> <p>1 Insanity; contracts of insane persons absolutely void.• — In this state, a contract of an insane person, whether it be a deed or any other form of contract, and whether written or resting in parol, is absolutely void; and therefore a party contracting with an insane person takes no benefit under such contract, nor acquires any title to property obtained by virtue of such cop-tract.</p> <p>2. Insanity; endorsement of promissory note by payee who is insane, void, and confers no right upon endorser. — The endorsement of a promissory note by the payee therein who is insane, is void and confers no right upon the endorser; and in an action by the endorsee upon a note so endorsed against the maker thereof, the insanity of the payee and endorser at the time of the endorsement and transfer, is a valid defense and can be interposed by the maker.</p> <p>3. Action upon promissory note; insanity; admissibility of evidence. Where in an action upon a promissory note by an endorsee of said note, the defendant files a sworn plea, denying that the plaintiff was the party really interested in the note sued on, evidence that the payee of the note was insane at the time he transferred it, is competent and admissible, and it is error for the court to exclude such evidence.</p>

<p>Appeal from the Circuit Court of Tallapoosa.</p> <p>Tried before the Hon. A. H. Alston. '</p> <p>This action was brought by the appellee, S. M. Cotney, against the appellant, D. W. Baker, and sought to recover $375.00 for the taking of certain articles of personal property, which was described in the complaint. The complaint contained three counts. The first count was in trover. The second in trespass, and the third was in case. The third count claimed damages for that the defendant removed, or caused to be removed and converted to his own use four bales of cotton, .600 pounds of seed cotton, 66 bushels of cottonseed, and other farm products; upon which it was averred the plaintiff had a lien as a landlord of D. N. Cotton, L. P. Cotton and J. J. Cotton, and for advances made to them, and of which lien it was averred in said count the defendant had knowledge at the time he removed and converted said cotton and other farm products, and that after said removal the defendant refused to deliver up said property to the plaintiff upon his demand, and that by said removal or conversion, mid lien and the remedy for its enforcement were lost to plaintiff.</p> <p>The defendant demurred to the 3d count of the complaint upon the grounds that it was too vague and indefinite, and that it was not shown thereby that the defendant destroyed the plaintiff’s lien on said property described in said count. This demurrer was overruled, and defendant duly excepted.</p> <p>The cause was tried upon pleas of the general issue. Tlie facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court at the request of the plaintiff gave the general affirmative charge in his behalf. There were verdict and judgment for the plaintiff: The defendant appeals and asisigns as error the several rulings of the trial court to which exceptions were reserved.</p> <p>cited, Snodgrass v. Br. Bank of Decatur, 25 Ala. 161; Leeman v. Shackelford, 50 Ala. 437; McHm v. Orchoay, 67 Ala. 347.</p> <p>Cited Harrison v. Palmer, 76 Ala. 157; Baker v. Barclift, 76 Ala. 414; Waidman v. N. B. & M. Ins. Go., 91 Ala. 170; Adler v. Prestwoo-d é Go., 122 Ala. 367; Seymour & Go. v. Farquhar, 93 Ala. 292.</p>

Heard before the Hon. Tx-iomas. W. Coleman, Jr. The averments of the bill in this case are sufficiently set forth in the opinion. The prayer of the bill was that upon final hearing the alleged pretended marriage between the complainant and the respondent be declared null and void, and that the complainant be alloived to marry if he-so desired. The respondent moved to dismiss the bill upon the following grounds: 1st. That said bill is without equity. 2nd.

Tried before the Hon. Charles A. Senn. This action was brought by the appellee, J. A. Otwell, against the appellant, the Ensley Mercantile Company, a corporation, and sought to recover damages for the alleged negligent killing by the defendant, through its agent, of a mare that was owned by the plaintiff. The defendant pleaded the general issue, and by special pleas set up tlie contributory negligence on the part of plain-' tiff.

<p>Appeal from the Chancery Court of Mobile.</p> <p>Heard before the II011. Thomas H. Smith.</p> <p>The bill in this cause was filed by the appellant, Harry (1. G. Donald, agaist the Manufacturers’ Export Company, a corporation, and J. T. McKean, William McGee, J. E. North, W. J. Kildnff, II. L. ■ Glover, and David Baird. The purpose of the bill and the facts averred therein are sufficiently set forth in the opinion.</p> <p>The respondents demurred to the bill on the following grounds:</p> <p>“First. Because the bill of complaint does not sIioav that any proper application Avas made to the Board of Directors, assembled as such, to remedy the grievances complained of in the bill. Second. Because the bill of complaint does not sIioav that any proper application aauis ever made to a meeting of the stockholders, as such to remedy the grieA'ances complained of in the bill of complaint. Third. Because the bill of complaint shoAVS that the Manufacturers’ Export Company Avas organized largely for the purpose of dealing with the Baird Lumber Company, the Bay City Lumber Company, and the J. E. North Lumber Company, and that it was the purpose of the organizers of the said Manufacturers’ Export Company to so distribute its stock that those principally interested in.said several lumber companies should hold and control a majority of the stock of said corporation, and that the complainant Avas one of the promoters of the Manufacturers’ Export Company and consented to and participated in such purpose;. Eonrtli. Because said bill of complaint shows that the several contracts which it. alleges existed between the Manufacturers’ Export Company and the said several lumber companies, were separate and distinct contracts with each of the said several lumber companies, and that there were no joint contracts or dealings between the Manufacturers’ Export Company on the one part, and said three lumber companies.on. the other part, and said bill further shows that only one of the directors of the Manufacturers’ Export Company is interested in the Bay City Lumber Company and that only one of said directors is interested in tin; J. E: North Lumber Company, and that only two of said directors are interested in the Baird’Lumber Company. Fifth. Because said bill of complaint show's that there are five, directors of the Manufacturers’ Export Company, and only one of said directors is in any wise interested in the Bay City Lumber Company, and only one in any wise interested in the J. E. North Lumber Company, and only two in any Avise interested in the Bail'd Lumber Company. Sixth. Because the bill of complaint fails to set out the terms of the several’ contracts between the Manufacturers’ Export Company and the several lumber companies mentioned in the bill of complaint, and fails to set out 1 he. facts shoAving Avherein said lumber companies, respectively, violated said sca^era.l contracts, and fails to allege any facts showing to what extent the Manufacturers’ Export Company suffered damage by its failure to enforce said contracts, and fails .to allege that the salaries dniAvn by the several officers of the Manufacturers’ Export Company Avere not •fairly fixed by the company before the sendees Avere rendered. Seventh. Because the bill of complaint alleges that t-lu; Manufacturers’ Export Company is engaged in business Avith others than said several lumber companies, and does not sIioav that any of the directors have any conflicting interest in any of such other dealings or are othenvise disqualified to conduct the same. Eighth. Because the bill of complaint shows that Avith the consent of the complainant, the Manufacturers’ Export Company Avas so organized that it could not fairly and properly deal, through its stockholders or hoard of directors, with the several lumber companies mentioned in the bill of complaint, and yet complains that such directors did. not insist upon dealing with said several lumber companies. Ninth. Because the bill off complaint is a bill filed by a single stockholder seeking to dissolve the corporation because the mismanagement of its affairs by a major-’ ity. of its directors. Tenth. Because the chancery court; has no jurisdiction to dissolve a corporation and wind up its affairs, otherwise than in the statutory method.</p> <p>The said defendants demur to so much of said hill of complaint as seeks to direct that J. T. McKeon, William McGee, and J. E. North may be removed from the management of the affairs of the. company, and restrained and enjoined from exercising any power, either -as stockholders or directors thereof. First. Because the court has no authority to restrain a majority of the stockholders or .directors of the company from exercising the powers vested in them by law as stockholders and directors because they may have improperly or tin wisely acted in regard to one or more matters touching the corporate affairs. Second. Because the hill of complaint shows that the said defendants constitute the holders in value of a majority of the stock of said corporation, and that they are not more disqualified to act as stockholders and directors than are David Baird and II. L. Glover, and that, without any of mid stockholders participating in the board of directors, there would not he a sufficient number of stockholders to (‘(institute a hoard of directors of said company.</p> <p>The said defendants demur to so much of said bill off complaint as seeks the. appointment off a receiver off said corporation, because there are no allegations in the bill of complaint showing that the assets of the company are being in any manner misapplied by its board off directors. Second. Because tin bill of complaint contains no allegations showing any reason why the affairs of the company should he taken out of tin hands of the stockholders and directors.</p> <p>The said defendants demur to so much off said bill of complaint as seeks to have a receiver authorized and instructed to demand and if necessary, sue for, any and all sums due to theManufaeturers’ Export Company from the Bay City Lumber Company, the J. E. North Lumber Company, and the Baird Lumber Company, or any of them. First. Because there are no allegations in the bill of complaint showing that anything is due by any of said several lumber companies to the said Manufacturers’ Export Company. Second. Because the said bill of complaint does not sufficiently ©et out the several contracts alleged to have existed between the Manufacturers’ Export Company and the several lumber companies, nor the facts in regard to the dealings under said contracts, sufficiently to enable the court to see whether there is a liability under ©aid contracts or not.</p> <p>On the submission of tlie cause upon the demurrers, the chancellor rendered a decree sustaining them. The complainant refused to amend the bill, submitting the cause on the original bill alone, and the chancellor rendered a final decree dismissing the bill.</p> <p>The complainant appeal® and assigns as error the decree overruling the demurrers to the original bill and the decree dismissing the bill.</p> <p>Cited George v. Gen-1ral R. R. cG tí. Go., 101 Ala., «08. 024; M. & G. R. It. v. Woods, 88 Ala., 647; Perry r>. Tuscaloosa G. tí. O. M. Go., 93 Ala. 308; O’Gonnor M. cG M. Go. v. Goo so, F. Go., 95 Ala. 018; Dexter v. McGlellan, 116 Ala. 37.</p> <p>Cited L. & N. R. It. Go., v. Neil, 128 Ala. 150; Cook on Corporations, Yol. 2, § 739; Nicrosi v. Galera Land Go., 115 Ala. 434; 2 Cook on Stock, § 275; Bridgeport; Go. v..Tritclv, 110 Ala. 285.</p>

<p> Bill in Equity to have Declared Void a Will ami Deeds of Conveyance. </p> <p>It Undue influence; as to transactions inter vivos. — In transactions inter vivos where confidential relations exist between the parties, the law raises up the presumptionn of undue influence, and when the donee is the dominant party in the transaction, the burden is upon him of repelling such presumption by competent and satisfactory evidence; which is usually done by showing that the grantor had the benefit of competent and independent advice of some disinterested third party.</p> <p>2 Undue influence as relating to testamentary transactions. — In transactions testamentary in character, the mere existence of confidential relations between the debtor and the beneficiary - under the will, are not in and of themselves alone sufficient to raise presumption'of undue influence in the making of the will, that would avoid it in the absence of rebutting evidence; but undue influence such as will avoid a will must amount to fraud or coercion so as to show that the will as executed was not as a matter of fact the will of the testator.</p>

Heard before the Hum William H. Simpson. The bill in this case was filed by the appellee, R. B. White, as the administrator of the estate of O. C. Slieats, deceased, against the appellants. W. R. Francis, Foster H. Pointer and Nelson Campbell, for the purpose of exercising the statutory right of redemption of certain lands.

Tried before the Hon. William H. Simpson. The bill in this ease was filed by the appellees, who constituted three separate and distinct partnerships, all of whom were non-residents of the State of Alabama, against the appellants. The purpose of the bill and the averments of facts are sufficiently set forth in the opinion.

Tried before the Hon. William S. Anderson. This suit was brought by the appellee, George H. Stephens, against the appellant, Louisa Barnewell, Susie Johnson, George Barnewell and Ella Barnewell. The complaint as originally filed contained two counts. The first count was for unlawful detainer, and the second :for forcible entry and unlawful detainer. The defendant pleaded the general issue and by special plea set up the statute of limitation for three years.

Heard before the Hon. W. L. Parks. This is a bill in equity filed by appellants, Richard Edins, Will Edins, Henry Edins and Lee Edins, a minor by his next friend, Richard Edins, against Joel D. Murphree, for the division of a certain piece of land in Coffee County.

Heard before the Hon. John C. Carmichael. The bill in this case was filed by the appellee, A. F. Crane, against the. American Ice and Industries Company and certain named officers and agents of said Company for the purpose of enjoining said corporation and its officers from executing bonds of the corporation in excess of the sum of $50,000. The facts averred in the bill and answer are sufficiently set forth in the opinion.

Tried before the Hon. Terry Richardson. This was an action brought by the appellee, M. Burke, against the appellant, Louisa V. Kidd, as executrix of the will of H. B. Tulane, deceased, and sought to recover on common counts for money on and received by defendant’s testator for the use of plaintiff. There were verdict and judgment: in favor of the plaintiff. The defendant appeals and assigns as error the several rulings of the trial court to which exceptions were reserved.

<p>Appeal from tbe City Court of Montgomery.</p> <p>Tried before the Hon. A. D. Sayre.</p> <p>This suit was brought in said city court by C. F. Bryant and two others, against W. H. Parks, as the principal, and the United States Fidelity & Guaranty Company, as the surety, upon the official bond of said Parks as register in chancery for Montgomery county, to recover six hundred dollars for and on account of money of the plaintiffs alleged to have been received by said Parks as such register and by him deposited to his credit as such register in the banking house of Josiah Morris & Company, whereby the said money was lost to the plaintiffs. The bond sued on. is the same as in the preceding case of The United States Fidelity & Guaranty Company against Union Trust & Savings Co., in the report of which case its contents are substantially set forth. The defendants each demurred to the complaint (as in the preceding case) and the demurrers were overruled by the court. Thereupon the defendants severally filed a number of pleas, the plaintiff’s demurred thereto and the demurrer was sustained. Pleas 3 and 4 were identical and as follows: “That the sum claimed in the complaint was received in his official capacity by one Y. M. Elmore, who was the predecessor of defendant Parks in the office of register in chancery of Montgomery county, Alabama; that on his retirement from said office, he gave to defendant Parks as his successor in office a check on the banking house of Josiah Morris & Go. for the money claimed in the complaint; that said Parks did not collect the said check, but had the amount named therein placed to the credit of said Parks, as register in chancery, on the books of said Josiah Morris & Go.; that shortly afterwards the said Josiah Morris & Go. suspended payment and defendant Parks has never received the money claimed in the complaint.” The grounds of the demurrer, sustained to said plea, were, that the plea showed that Parks received the money in his official capacity as register; that the fact that he received it in the shape of a check constituted no defense; that the plea showed a breach of the bond sued on; that the plea showed that Parks as register did collect the check given him by his predecessor. The cause being submitted to the court on the evidence, judgment was rendered for the plaintiffs against the defendants for $520.92 and costs. The assignments of error are based upon. the rulings on the demurrers.</p> <p>The pleas setting up that the defendant Parks had received from his predecessor in office, Elmore, a check on Josiah Morris & Go. ■for the money sued for, and had deposited this check in said bank to his credit as Register, should have been upheld. Parks never received this money, and the effect of the transaction was a substitution of the credit of the bank for that of Elmore. Parks’ action does not come Aid thin section 4668 of the Code. The conversion had already been made by Elmore, and the act being unlaAvful, the debt of the bank Avas to Elmore individually. Parks did not participate in the act by Avkick Elmore gave the use of the money to the bank, nor did the money ever come into the hands of the former. ■ See City Council v. Hughes) 65 Ala. 201; Burge on Suretyship, 69.</p>

Tried, before the Hon. Willtam W. Wilkerson. This was a, statutory action brought by the appellant, John C. Rottenberry, against the appellees, Hiram W. Brown and W. M. Martin, to recover certain lands specifically described in the complaint. The plaintiff based his right of recovery upon the tax deed made by the State Auditor.

Heard before the Hon. Richard B. Kelly. The bill in this case was filed by the appellant, E. B. Price against the appellee, Amanda Price, for the purpose of obtaining a divorce against the defendant. It was averred in the bill that the plaintiff and the defendant had been married for 33 years prior to the time of the filing of the bill; that at the time of the marriage, the said wife was insane, and had remained so up to the time of the filing of the bill.

Tried before the Hon. W. O. Mulkey. This was an action brought by the appellee against the appellants to recover damages resulting to the plaintiff by reason of the defendant purchasing two bales of cotton upon which plaintiff had a lien and thereby depriving the plaintiff of the enforcement of the lien. The facts of the case are sufficiently stated in the opinion.

<p>The facts of this case necessary to an understanding of the decision on the present appeal axe sufficiently stated in the opinion.</p>

Tried before the Hon. J. A. Bilbro. This was an action of trover brought by the appellee, the Bank of Attalla, against the appellant, E. A. Morris, to recover damages for the alleged conversion of certain cotton, a part of the crop on which the plaintiff held a mortgage executed to it by one S. T. Massey.

This was a proceeding in the nature of quo warranto, and Avas commenced by an original petition filed in the Supreme Court.

Tried before tlie Hon. William W. Wilkerson. This action was brought by the appellee against the appellant to recover upon a policy of fire insurance.

Heard before the Hon. Charles W. Ferguson. The proceedings in this case were instituted by the filing of an information of quo warranto by the State on the relation of M. M. Johnson oaid others, residents of the city of Ensley. It was. averred in the petition that hy an Act of Sept. 30th, 10Ó3, (Local Acts 1903, p. 692), the corporate limits of the city of Ensley were extended so as to include the, relators as citizens of said city.

Heard before the Hon'. Richard B. Kelley. The appeal in this case is prosecuted from a final decree granting the relief prayed for by the complainant. The facts of the case necessary to an. understanding of the decision on the pi'esent appeal are sufficiently stated in the opinion. An attorney’s fee cannot be allowed for a. foreclosure in equity unless there is shown a necessity for resorting to that method. — Be-dell v. Mortgage, Co., 91 Ala. 325; Am. So.

Tried before the Hon. A. 1). Sayre. This action was tried on the 3d count of the complaint charging the defendant with wilfully .or wantonly injuring a mule, the property of plaintiff, to which count the defendant interposed the plea of “not guilty.” There was a verdict for the plaintiff. The evidence showed that defendant was engaged in the business of operating an electric street railway in the city of Montgomery.

<p> Bill in Equity to Foreclose Mortgage. </p> <p>1. Aroitration; conclusiveness of award; usury. — Where the question of indebtedness between two parties is submitted by-agreement of the parties to arbitrators and one of the stipulations of the submission was that legal interest should be computed upon the items of indebtedness found, from the dates of maturity, and in accordance with such submission an award is made by the arbitrators ascertaining the amount to be due from one of the parties, for which notes are given, which are secured by a mortgage, if upon default being made in the payment of the notes, a bill is filed to foreclose the mortgage, the plea filed by the debtor mortgagor to such bill, alleging that there were numerous items of usury included in the finding and award of the arbitrators presents no defense to the maintenance of such bill; the issue of usury vel non having become foreclosed and concluded by the award.</p>

A ppeal from the Circuit Court of Mobile. Tried before the Hon. William S. Anderson. This action Aims brought by the appellee, Charles E. Pearce, against the Louisville & Nashville Bailroad Company. The facts of the case are sufficiently stated in the opinion.

<p>Appeal from Tallapoosa Circuit Court.</p> <p>Tried before the Hou. N. D. Denson.</p> <p>This was an action of assumpsit brought by appellee, F. O. ITellier against the Southern Industrial Institute to recover an amount due appellee from the defendant for services rendered as a teacher in said institute. The defendant pleaded the general issue, and by way of special pleas set up the defense that it was not indebted to the plaintiff in the manner and form as alleged; that it had paid the debt; that while plaintiff was employed as teacher in the defendant’s school he lost considerable time from said school, and that the value of the time so lost was offered as a set-off, or in recoupment of the amount claimed by plaintiff.</p> <p>On the trial of the cause plaintiff introduced testimony tending to show that he had rendered services as a teacher to the defendant under a contract of employment, and that he had not been paid the full amount due him, and that the amount claimed in this suit was a balance due. The defendant introduced testimony tending to show that while plaintiff was in its employ as a teacher, by reason of sickness, lost considerable time. In rebuttal the plaintiff introduced testimony showing that during the time he was sick his wife, Mrs. ITellier, taught for him and in his stead; and that during the time she taught for him she was not employed by the defendant as a teacher. There was testimony introduced that Mrs. Hellier had, during part of the time of plaintiff’s employment, been employed as a teacher in said' school.</p> <p>The other facts are sufficiently stated in the opinion.</p> <p>Upon .the introduction of all the evidence the defendant requested the court to give to the jury the following written charges, and duly excepted to its refusal to give said charges' as requested: — (1.) “The court charges the jury thqt if they believe the evidence in this ease, they cannot find for the plaintiff for any amount on account of services rendered by Mrs. ITellier during the fall of 1901.” (2.) “The court charges the jury that the plaintiff cannot recover anything for the salary of Mrs. Hellier during the time she was employed as a teacher by the defendant.” (3.) “.If the jury believe that plaintiff’s account has been ■ paid down to less than one hundred dollars, and if they further find that he lost one month’s time out of the school during the fall of 1901, while the school was in session, then the plaintiff cannot recover and your verdict will be for the defendant.”</p> <p>There was a verdict and judgment for the plaintiff. The defendant made a motion for a new trial on the ground that the verdict was contrary to the evidence, because same was contrary to law, and because the verdict was excessive. The court overruled the motion for a new trial, and the defendant duly and legally excepted. The defendant appeals and assigns as error the rulings of the court below.</p>

Heard before the Hon. F. M. Rushing. The facts in this case are sufficiently stated in the opinion. Appeal from decision and order of Judge of Probate of Coffee County on Habeas Corpus proceedings, discharging petitioner.

Tried before the Hon. William S. Anderson. This was a statutory action of detinue brought by the appellee, Mary Henry, against the appellant, Lewis L. Brannan. to recover certain lands specifically described in the complaint. The facts in the case are sufficiently stated in the opinion. Upon the introduction of all the evidence the court at the request of the plaintiff gave the general affirmative charge in her favor, to the giving of which charge the defendant dulv excepted.

Tried before the Hon. John Mooee. This action was brought by the appellee, Catherine Jefferson, against the appellants, W. P. Easco and the sureties on his official bond, and sought to recover for the breach of said bond by reason of the defendant, W. P. Easco, levying an execution issued upon a judgment recovered against the plaintiff’s husband, Bab Jefferson, upon property belonging to the plaintiff. The complaint as filed contained two counts.