Volume 143 — Alabama Reports

Clair. Tried before the Hon. J. A. Bilbro. Held: in the opinion, to be absolutely void.

Tried before Hon. J. J. Mayfield. Jim Green, the appellant in this cause, was- tried upon an indictment, charging him with the murder of Moach Williamson. He was found guilty of murder in the second degree. The proceedings on the selection of the jury are sufficiently shown by the opinion, and it is unnecessary to set out the facts and circumstances of the killing. On request of counsel, the general charge of the Court to the jury was given in writing.

<p> Indictment for Murder. </p> <p>1. Holidays. — Holidays with us are not, on that account, nonjudicial days, and there is no merit in the objection of the trial of defendant having been had on Good Friday.</p> <p>2. Challenge for cause; grounds of. — A venireman may be properly challenged for cause, when upon his being examined as to his qualification as a juror, he answers “That he would not convict in a capital case, on circumstantial evidence;” and likewise a challenge for cause is properly allowed when the venireman answers that he would not hang on circumstantial evidence.</p> <p>8. Same; circumstantial evidence. — The question, as to whether or not there will be any circumstantial evidence offered, cannot be inquired into as a preliminary to the allowance of a peremptory challenge under Section 5018 of the Code.</p>

Tried before Hon. John P. I-Itjbbaed. Tbe appellant, Walter L. Nordan, was indicted for the murder of his wife, Nola Nordan, by administer in»', or causing to be administered to her, poison. It is not necessary to set out the various counts contained in the indictment; nor is it necessary to set out in detail the evidence given.upon the trial.

Tried before Hon. Samuel E. Greene. The appellant herein, Bud Braham, ivas tried for the murder of Minnie Crenshaw, convicted of murder in the first degree, and sentenced to be hanged. He was tried on plea of not guilty, and not guilty by reason of insanity. In selecting the jury, each juror was examined on his voir dire, but the court neglected on such examination to inquire as to any relationship of the juror to the defendant or to the deceased.

Heard before Hon. W. T. Lawler. This was a habeas corpus proceeding instituted by the appellees, Pint Towery and Dalton Towery, for the purpose of being admitted to bail. They were imprisoned upon a warrant issued upon an indictment charging them ‘ with murder in the first degree.

Tried before the Hon. Thomas W. Coleman, Jr. The appellant, Andy Ledbetter, ivas tried and convicted of the offense of selling whiskey without a license. The testimony of the State was to the effect that one Powell Avent to the defendant, and asked him if any whiskey could be had, saying that he wanted a quart. Defendant replied that he could get it for the witness, and that it would cost eighty cents.

<p> Indictment for Rape. </p> <p>1. Rape; corroborative evidence. — On a prosecution for rape, it is competent to show, in corroboration of the testimony of the assaulted female, that she made complaint thereof, shortly after the occurrence. But such testimony must be confined to the bare fact of complaint, and details of the occurrence, or the identity of the person accused, are not admissible.</p> <p>2. Same; constituents of the offense; force. — If a woman, upon whom a rape is charged to have been committed, was unconscious at the time, force is necessarily involved in the criminal act itself, if the intent to use force, if necessary to accomplish the act, is shown to exist.</p> <p>3. Same; same; sexual intercourse. — Sexual intercourse is not an essential of the crime of rape under our statute. Actual penetration, without more, committed forcibly and against the consent of the female, is all that is necessary to be proven.</p>

Tried before Hon. A. H. Alston. The defendant was tried and convicted of carrying concealed weapons, and fined twenty-five dollars. On the trial, the State introduced evidence showing the carrying by the defendant of a concealed pistol, in the town of Stevenson, Jackson County. The defendant introduced evidence showing that one J. H..

Heard before the Hon. William H. Simpson. The appellant and one Fint Towery were indicted on the charge of murder in the first degree. They applied to the Judge of Probate of Madison County for their discharge on habeas corpus. An order was made in that proceeding, granting them bail in the sum of $2,500 each.

Tried before Hon. Samuel L. Weaver. The appellant, Frank Washington, was tried upon an indictment charging him with the forgery of the name of the Hunter Brick Company, a partnership composed of John W. Hunter, William H. Merritt and James H. Hunter, to an order for certain merchandise.

Tried before the Hon. William Jackson. The appellant in this case, William Witherspoon, was prosecuted, tried and convicted for trespass after warning.

Tried before the I-Ion. Samuel. H. Sprott. The facts sufficiently appear in the opinion.

Tried before Hon. John P. Hubbard. In this cause, the appellant, Rufus Bardin, together with Letcher Bardin and Frank Devane, were jointly indicted for murder of Tom Wyrostick. The details are unnecessary to an understanding of the opinion. The opinion sufficiently states the evidence and proceedings on trial to which exceptions were taken.

Tried before Hon. William H. Thomas. In this cause the appellant ivas tried upon an indictment charging- him Avith the murder of one Jim Achors. The defendant Avas found guilty of murder in the second degree, and appeals. In the process of empanelling the jury, one H. J. Talley’s name was called.

<p>Appeal from the Circuit Court of Henry.</p> <p>Tried before Hon. Jno. P. Hubbard.</p>

. Tried before Hon. S. L. Weaver. The appellant, John William Tagert, was indicted, tried and convicted of incest in February, 1905 The evidence on the trial showed that the defendant Tagert married the mother of the woman, Maud Alice Freeland, with whom he is alleged to have committed the incest, and that by said marriage he had one child, living at the time of the death of his wife, and at the time the offense was alleged to have been committed.

Tried before Hon. D. A. Greene. The appellant, R. E. Lee, was charged by warrant sworn out before a justice of the peace of Beat Thirty-seven of Jefferson county, with the offense of unlawfully presenting a pistol at another. This warrant was made returnable before the Criminal Court of Jefferson County.

Tried before Don. Daniel Partridge, Jr. The appellant. Spencer Shelton, Ava.s tried and convicted of forgery of a promissory note. The indictment contained two counts; the first charging the forgery of the name of one Thad Chestnut to the note, Avhich was set out verbatim in the indictment and shoAved the name of Chestnut signed at the loAver right hand of the paper, and the name of the defendant signed at the loAver left hand thereof.

<p> Proceedings for Summary Judgment Against Attorney. </p> <p>1. Summary proceedings against attorney; jurisdiction of City Court of Montgomery.- — Under the provisions of sections 4 ‘ and 9 of the act establishing the City Court of Montgomery, said City Court has the special jurisdiction of the circuit court of summary proceedings authorized by chapter 106 of the Code.</p> <p>2. Summary proceedings against attorney; when jurisdiction conferred. — Where a written notice is given to an attorney that a motion will be made in the then pending term of the City Court of Montgomery for a summary judgment against him, based upon his failure to pay over money collected by him as attorney, after demand being made upon him therefor, and a motion is then made in the City Court of Montgomery for such summary judgment, in which motion it is stated as grounds therefor that the said attorney failed to pay over, upon demand, money collected by him as attorney, there are shown such facts as give the City Court jurisdiction of the subject matter involved for the purpose of a summary judgment.</p> <p>[Macdonald v. The State.]</p> <p>3. Same; when unnecessary to prove residence of attorney. — In such a proceeding', where, after the filing of the motion, the attorney appears by counsel and moves to dismiss the proceeding, and then demurs to the motion, and subsequently files pleas attempting to set up a defense, there is obviated the necessity of proving that the respondent is a resident of Montgomery County, and it then becomes unnecessary for the record of the City Court to affirmatively show the jurisdictional facts further than those incorporated in the motion, which is made a part of the record.</p> <p>4. Same; in what amount demand should he made. — In a summary . proceeding against an attorney for a judgment for money collected by him, which he has failed to pay over to his client, the demand provided for in the statute should, or at least may, be in all cases for the gross sum collected by the attorney; and this is true, notwithstanding the attorney may have been entitled, on a settlement, to retain some part of the fund as compensation for his services.</p> <p>5. Same; set-off not pleadable. — In such a proceeding, therle is no such thing as a plea of set-off in defense of the motion against a defaulting attorney.</p> <p>6. Same; attorney has no right to retain any part of the money collected as compensation. — In such a proceeding, where it is shown that the attorney, proceeded against, collected money upon a judgment, and, upon demand of his client, failed to pay the same over to him, as a condition precedent to the attorney claiming a part of the money so collected as compensation for services, he must pay the money into court; and, upon his failure to pay the whole sum collected by him into court, he is not entitled even to have the recovery against him abated by the amount of his compensation. (Tyson and Dowdell, J. J., dissenting.)</p>

<p> Action to Recover 'Damages for Personal Injuries. </p> <p>1. Pleading; averments of com’plaint; what sufficient description of defects causing injury. — In an action for personal injuries, caused from the breaking of a bridge, or walkway, over a ditch, a count of the complaint, which alleges that said bridge, or walkway, was weak, insecure or otherwise defective, sufficiently alleges the nature of the defect.</p> <p>2. Same; same; sufficiency of allegation that defective bridge was part of ways, works or machinery. — A count of the complaint, which alleges that the defendant was injured by the breaking of a bridge, or walkway, over a ditch, and that the injury suffered was the proximate consequence of a defect in the condition of the ways, works, machinery or plant used in connection with the business of the defendant, — viz., that said bridge, or walkway was weak, insecure or otherwise defective, — sufficiently shows that the bridge was a part of the ways, works or machinery.</p> <p>3. General charge; when properly refused. — Where the testimony of the plaintiff, though uncorroborated, tends to show that the injury was caused by the breaking of a plank, or walkway used as a bridge, and that said break was the result of a plank being so worn by constant use as to be dangerous, and that this condition could have been discovered by an inspection of the bridge, the affirmative charge for the defendant was properly refused, it being a question of fact for the jury to determine whether the bridge was defective, and whether such condition was, or could have been known to the defendant by the exercise of ordinary care.</p> <p>4. Action for personal injuries; evidence. — In an action for personal injuries, it is incompetent to show that the resident physician at the hospital, where plaintiff was treated for his injuries, wanted to amputate plaintiff’s leg, and that plaintiff had to leave the hospital because he would not let his leg be amputated.</p> <p>5. Same; what improper charge. — Where there was evidence that the bridge, or walkway, which caused the injury to plaintiff, was, subsequently to' the injury, removed and another substituted therefor, a charge that there is no evidence in this case that the bridge, or walkway was removed by defendant, or any of its agents, because of notice of the suit of plaintiff, was properly- refused.</p> <p>6. Same; same. — A charge which is abstract is properly refused.</p> <p>7. Same; employe entitled to protection from injury when going for a drink of water. — An employe is entitled to the same protection from injury when he leaves his work for necessary purposes as when he is actually working, and the employe 'has the right to pass over ways provided by the employer in going to and from his place of business for such necessary purpose.</p>

<p>Appeal from Lamar Chancery Court.</p> <p>Heard before Hon. W. H. Simpson.</p>

<p> Action for Damages for False Imprisonment. </p> <p>1 Appeal; charges, and rulings of lower court thereon must he shown hy hill of exceptions. — The charges and rulings thereon by the lower court will not he considered on appeal, where they are not shown by the bill of exceptions.</p> <p>2. Motion for new trial and ruling thereon must he shown hy hill of exceptions. — Where neither a motion for a new trial, or the action of the court thereon, is shown by the bill of exceptions, the action of the lower court will not be reviewed on appeal.</p>

'Appeal from Circuit Court of Lauderdale. Tried before the Hon. Ed. B. Almon.

Tried before the Hon. A. A. Coleman. This action, to recover damages alleged to have been caused by the negligence of the defendant in operating his elevator, in his store, was brought by appellant, James W. Morgan, against appellee, Louis Saks. The facts, so far as necessary to an understanding of the opinion, were, that the defendant, who was a merchant in the City of Birmingham, conducted an elevator in his store for the convenience of his customers.

Tried, before the Hon. N. D. Denson. This was an action of detinue brought by the appellee, J. F. Turner', against the Central of Georgia Railway Company, to recover one hundred, bushels of corn. The facts of the case are sufficiently stated in the opinion. By agreement of the parties, the cause was triéd by the court without the intervention of a jury, and, upon hearing all the evidence, the court rendered a verdict in favor of the plaintiff.

Tried before the Hon. Charles W. Ferguson. This is a proceeding, in the nature of a quo warranlo, biought by the State on the relation of S. J. Tillman, and by S. J. Tillman against William Jackson. The facts sufficient for an understanding of the case are stated in the opinion. State ex rel. Grow v. Grooh, 123 Ala. 657. 17 Ency. PI. and Pr. 457-8 and 550; Montgomery v. State ex rel. Fusion, 107 Ala. 384; People v. River, etc. Company, 86 Am. Dec. 66; Stale v. Harris, 36 Am.

Tried before the Hon. A. A. Evans. This was an action brought by the appellee against the appellant to recover damages for the alleged negligent killing of a mule by one of the trains operated on defendant’s road. The facts of the case are sufficiently stated in' the opinion.

Heard before Hon. W. L. Parks. The Birmingham Fertilizer Company filed its bill of complaint in the Chancery Court of the County of Crenshaw against the Bank of Luverne, Duke Beall and J. H. Beall, the last two being partners under the firm name of Beall Brothers. The Bank of Luverne moved to dismiss the bill for want of equity. That motion was overruled and the only question involved in this appeal is the correctness of said ruling of sa'd chancery court.

Tried, before the Hon. P. N. Hickman. This action was begun by appellee, H. M. Cash, against the appellants, W. L. Warren and W. M. Lanier, as late partners, upon a complaint containing two counts. The first count was in the Code form for goods, wares and merchandise sold and delivered. The second count was based upon an alleged special contract of purchase and sale of goods.

Tried before Hon. A. A. Coleman. This cause arose out of an application made by the appellee, M. H. Fitzpatrick, for a writ of mandamus, directing the appellant, E. A. Dudley,' who- was then the clerk of the City Court of Bessemer, to deliver to the clerk of the Circuit Court of Jefferson County the original papers, and certified copies of the minute entries and docket, in' a cause then pending in said City Court of Bessemer, wherein one F. A. Little was plaintiff and…

Tried before the Hon. Osceola Kyle. This was a,n action upon a policy of fire insurance, brought by the appellees against the appellant. The necessary facts are sufficiently shown by the opinion. There was verdict and judgment for tihe plaintiffs, from which the defendant took his appeal. Wheeling Gas Co, v. Wheeling, 5 W. Va. 448; Morse on Arbitration and Aioard, 102; 3 Cyc. 618; Hamilton v. Home Ins. Co., 137 U. S. 370; Wicking v. Ins. Co., 77 N. W. Rep. 275; Western Assur.

<p> Action for Damages, for Breach of Contract. </p> <p>1. Measure of damages for breach of contract. — Under a contract, by which defendant agreed to run and saw certain logs for the plaintiff “With all due diligence and as fast as water will permit,” which contract, by its termsj was to terminate at the expiration of eight months, a charge, that the measure of damages for a breach by delay was “The difference in the price of the timber-at the expiration of the contract and the price received for said timber,” states an erroneous basis for the computation of damages.</p> <p>2. Construction of contract. — Under a.contract whereby the defendant agreed to run and saw certain logs for the plaintiff with all due diligence and as fast as water will permit, the defendant has no right to postpone the running and sawing of plaintiff’s logs while he ran and sawed his own.</p> <p>3. Same. — Under a contract to run and saw logs with all due diligence and as fast as water will permit, the stipulation as to water permitting has reference to natural conditions, such as drouth and the like, and does not cover the fortuitous breaking of a dam.</p>

City Court. Tried before the Hon. B. C. Jones. This action was brought by the appellant against the appellee, John A. Hall; the complaint claiming an indebtedness on account, account stated, and for goods, wares and merchandise sold and delivered by the plaintiff to the defendant. Seven pleas were- filed, of which it is unnecessary to notice others than the 4th, 5th and 7th.

Heard before the Hon. John H. Disque. This was a petition by the appellant, M. A. Cowan, for a writ of mandamus against J. H. Lovejoy and others, members of the board of county commissioners of Etowah county, and sought to compel the respondents to order an election to ascertain whether a stock district, in Fair-view precinct in said county, should be abolished.

Tried before the Hon. T. J. Burton. The facts in this case are fully set out in the opinion. Code, § 2040’; Mmyor aoid Aldermen v. Rumsey, 63 Ala. 352; Murphree v. Mobile, 104 Ala. 532; s. cv 108 Ala. 663; Ellis v. Pratt City, 111 Ala. 629. Shepherd v. Dow-ling, 127 Ala. 1; Aldermen v. Rumsey, supra; Ellis v. Pratt City, supra; Meriwether v. Garrett, 102 TJ. S. 472; 42 L. B. A. 181; 20 A. & E. Enc. Law, 1190.

Tried before tlie 1-Ion. John P. Hubbard. This appeal is taken by appellant, W. A. McLendon, from the action of the lower court in refusing to grant a new trial in a certain cause, brought by appellee, It. L. McKissack, against appellant and others, based on the official bond of the defendant, as sheriff of Henry county, alleging that the said sheriff had wrongfully levied upon and sold certain property of the plaintiff, under an attachment against one S. J. McKissack.

<p>Appeal from Circuit Court of Bullock.</p> <p>Tried before the Hon. A. A. Evans.</p> <p>The plaintiff was employed by defendant as an engineer to take charge of its steam ginnery. The employment was for a stated term, during which the defendant’s boiler exploded and plaintiff was discharged. Plaintiff brought suit for breach of contract of employment. As a defense the defendant interposed four pleas: 1st. The general issue. 2nd. A special plea justifying discharge of plaintiff on. general averments of failure to perform his duty, and negligence. To the second plea a demurrer was sustained, and the action of the court in this respect is assigned as error. Pleas 3 and 4 undertook to set forth the particular details constituting the failure of duty and negligence on the part, of plaintiff, and on each of these pleas issue was joined.</p> <p>There was a verdict for plaintiff and from the judgment thereon defendant appealed. The other facts sufficiently appear in the opinion.</p> <p>The demurrer to plea number two should have been- overruled. — Chitty’s Pleading, Yol. 1 §227. Under o-ur system duplicity in pleading is not objectionable. — fícmnon v. Lindsey, 85 .Ala. 198; Boiling v. McKenzie, 89 Ala. 476.</p> <p>Negligence, carelessness, and failure to perform duty are mixed questions of law and fact, and, being more within the knowledge of the plaintiff, less particularity in stating them in the pleais is required. — L. & N. R. R. Co. p. Jones, 83 Ala. 376; Leach, Harrison cG Forwood r. Bush, 57 Ala. 145.</p> <p>This Court has frequently decided that general averments of negligence are sufficient. — Ga. Pao. Ry. Go. v. Davis, 92 Ala. 307; L. & JST. R. R. Go. v. Joños, supra; J/.-cG M. Ry. Go. v. Crenshaw, 65 Ala. 569; Western Ry. Co. v. Lasaras, 88 Ala. 453.</p> <p>The court erred in sustaining objection to question propounded by defendant on cross-examination of plaintiff, “Did you fail to do- anything that a prudent engineer should have done to prevent the accident?” 1st. The question was proper to test and sift the witness as to the matter in issue. — Slandenmeier v. Williamson, 29 Ala. 564. 2nd. The witness is shown to have been an expert and the question was therefore proper.— Choate v. So. Ry. Co., 119 Ala. 611; Ala. Great So. R. R. Co. v. Linn, 163 Ala. 139.</p> <p>The demurrer to plea number two was properly .sustained. The plea is multifarious. Again, the plea fails to set out any facts showing in Avhat way the plaintiff failed in his duty, or in what manner he was guilty of negligence. Facts, not conclusions, must be (stated. — Code of Alabama, § 3294; Prigmáre v. Thompson, 1 Minor 420; Term. G. & 1. Go. v. Henclon, 100 Ala. 451; Mttligan v. Pollard, 112 Ala. 465.</p> <p>The court properly sustained the objection to the question to appellant, “Did you fail to do anything that a prudent engineer should have done to prevent the accident.” This was the main issue of fact, the principal question to be decided by the jury, and it is from the facts given in evidence that the jury must reach their conclusion.</p> <p>• The charge based on the tardiness of plaintiff was' properly refused.</p>

<p> Action on Common Gounts. </p> <p>1. Statute of frauds. — A promise made by the defendant to induce the plaintiff to sell goods to a third person is an original promise, and is not within the purview of the statute of frauds requiring “Every special promise to answer for the debt, default or miscarriage of another," to be in writing.</p> <p>2. Contract; subrogation. — Where a merchant, under an agreement with the owner and contractor, advances materials to the latter to be used on the building of the owner, anil the owner promises to reserve and pay, out of the contract price,. for the materials furnished, and the contractor fails to carry out the contract, even though wrongfully, the merchant may recover from the owner the balance due the contractor on a quantum meruit, not exceeding his own claim.</p>

<p> Creditor’s Bill tv sel aside Conveyance as Fraudulent. </p> <p>1. Equity; pleading; parties. — While it is a rule of law, that all persons having a joint interest must join in the action as plaintiffs, in equity the general rule is, that it is sufficient if all the parties interested in the subject of the suit, are before the court, either as plaintiffs or defendants.</p> <p>2. Same; same; bankruptcy. — Where, after the filing of a bill to subject property to a claim of the complainant, a defendant is adjudicated a bankrupt, his trustee in bankruptcy is a necessary party defendant. — (Andrews v. Mather, 134 Ala. 358 distinguished.)</p> <p>3. Sarnie; same; same. — While the trustee of a bankrupt holds the legal title, the creditors are nevertheless interested in a realization upon the assets of the bankkrupt, and the trustee cannot complain because of the fact that the creditors are willing to aid him in locating and getting under control assets which he might, intentionally or unintentionally, permit to escape.</p>

<p>Appeal from Circuit Court of Jackson.</p> <p>Tried before Hon. J. A. Bilbro.</p> <p>This action was brought by appellee, Joseph W. Wright, against appellant, G. W. Stegall. From á judgment for the plaintiff, the defendant took this appeal. The facts are sufficiently shown in the opinion.</p> <p>Code of Alabama, Sec. 1805-180(1; B afoul a Hank v. Passmore, 102 Ala. 370; Hmit-h v. (layle, 58 Ala. (100; McArthur v. Dane, 61 Ala. 539; Oleare v. Oleare, 82 Ala. 581; Hart r. Freemen, 42 Ala. 567; Tanner v. Merrill, '51 L. R. A. 171; Fuller r. Kemp, 20 L. R. A. 785; Fuller v. Crittenden, 23 Am. I)cc. 364; Biting r. Hturdemml, 41 Conn. 1.76; Randall r. Reynolds, 52 N. Y. Sup. Ct. 145; Kerloqq l\ Richard, 14 ÁYend. 116; 19 A. & E. Ene. Law (1st ed j, 1224, 1122; 20 lb. 740.</p> <p>Bufanda- Bank v. Passmore; Hmith r. (layle; McArthur r. Dane; Oleerc. r. Ole,ere, and Hart r. .Freeman, all supra; and Hodges r. Team. Tm-plement Co., 123 Ala. 572; I Greenleaf on Ev. (13 ed.j, page 363, Sec. 305.</p>

<p> Action of Trover. </p> <p>1. Trover; venue of action. — Trover, being an action in tort, may be brought, in the county in which the tort was committed, although the defendant is not a resident of such county.</p> <p>2. Pleading; motion to strike. — A motion to strike pleading will not be considered on appeal, unless the motion is shown by a bill of exceptions.</p> <p>3. Sale or exchange of personalty; trover. — A vendor of an article, which has been delivered, cannot maintain trover against a vendee who got it under a fair contract of sale or exchange, when said contract has never been broken by the vendee.</p>

<p>Appeal from the City Court of Birmingham.</p> <p>Tried before the Hon. William W. Wilkerson. •</p> <p>The fhcts sufficiently appear in the opinion.</p> <p>A. G-. 8. R. R. Go. v. Chapman, 80 Ala. 615, same case, 83 Ala. 454; R. R. Go. v. Moorchead, 57 S. W. Rep. 860; R. R. Co. v. Gray, 65 Tex. 32; Wakefield v. R. R. Co., 37 Yt. 330; 21 Am. & Eng. Ency. of Law (2nd Ed.), p. 471, § 3.</p>

Tried before Hon. A. A. Coleman. This was an action for damages, brought by the appellee, Sallie Willis, against the appellant, the Birmingham Railway, Light and Power Company, based on alleged negligence of the defendant in operating its car, upon which the plaintiff ivas a passenger, whereby she was injured. The case ivas tried on pleas of the g’eneral issue, and contributory negligence by the plaintiff.

Tried before the Hon. John C. Anderson. This suit was brought by L. J. Allen, the appellee, against J. S. Byall.

Tried before Hon. William S. Anderson. This was an action brought by the appellee, Jane Arnold, and others, against the appellant, M. L. Davis, and sought to recover the statutory penalty prescribed for cutting timber wilfully and knowingly, without the consent of the owner. A statement of the facts, other than as shown in the opinion, is deemed -unnecessary. There was judgment for plaintiff, from which the defendant appealed. Lenoi v. Postal Tel.

Tried before Hon. John P. Htjbbakd. This was a statutory action of ejectment, W. S. Oates against F. M. Loyd. There was a judgment for the plaintiff, from which the defendant takes this appeal. A statement of facts is unnecessary.

Heard before the Hon. E. B. Kelly. In 1883, W. P. Cooper sold certain land to James A. Nance and executed a. bond for title to the same in the sum of two thousand dollars, and placed the said Nance in possession of the land. On December 11th, 1893, on a settlement had between W. P. Cooper and Nance, it was ascertained that the balance of purchase money then due Nance was $413.61, since which time no payments have been made.

Tried before Hon. A. H. Alston. This cause was begun by suit in tbe court of a justice of Hie peace, by tbe appellee, L. Kaufman, against appellant, William Kicliardson, and 'was based upon a promissory note executed by defendant to plaintiff. Judgment was rendered for plaintiff, and thereupon a garnishment was issued against tbe employer of tlie defendant.

Heard before TIou. A. I). Sayre. The bill in this cause was filed by J. M. Morris, the appellant, and other owners of property situated on Mottle Street in the city of Montgomery, and sought to enjoin the appellee from constructing and operating a street railway on said Mobile Street.

Tried before Hon. Chas. A. Senn. This was an action brought by appellee, W. R. Oates, against appellants, J. A. Massey and Mrs. L. L. Molton, seeking to recover damages alleged .to have been sustained by the plaintiff by reason of the negligence of the defendants in the manner of paving a sidewalk abutting on the property of the defendant, Mrs. Molton. The opinion contains a sufficient recital of the facts, for an understanding thereof.

, Tried before Hon. A. A. Coleman. This action was brought by E. C. Chambers, as administratrix of the estate of Samuel A. Paschal deceased, and sought to recover damages for the death of the intestate, who was alleged to have been a child of ten years of age.

Tried before the Hon. Charles A. Senn. This was an action by appellee, J. M. Butler, to recover damages for personal injuries alleged to have been caused by the careless handling of its train by defendant, the Kansas City, Memphis & Birmingham Railroad Company.

Heard before Hon. Thomas H. Smith. The bill in this cause was filed by the appellee,-John W. Miller, against the appellant, Fayette Wilson and others, and sought to enjoin an action of ejectment, which had been begun against him by appellees, and also to cancel a certain deed as a cloud upon his title. ' The averments of the bill were to the effect that the complainant bought the lands in 1883 from one Walter T).

Tried before Hon. C. W. ’ Ferguson. The facts of this case are all set out in the opinion. From a judgment for the defendant, the plaintiff appealed.

Tried before the Hon. W. W. Wilicekson. Action by appellee against appellant for damages for trespass to realty, resulting in personal injury. The complaint consisted of five counts, all of which were amended, in respects that need not be noticed,'before the trial was entered upon.

Heard before the. Hon. John 0. Carmigi-iael. This hill was originally filed in the name of Charles O. Brown., “As Attorney-General of the State of Alabama, on behalf of the people,” and subsequently amended,by substituting the name of Massey Wilson, the term of office of the other having expired.' The bill charges that the lauds described therein were dedicated to the public as a park, by the Elyton Land Company, the acts constituting the alleged dedication being the mapping…

Tried, before the Hon. Citas. A. Senn. Action by appellant against appellee to recover damages for personal injuries, received by appellant on the premises of the appellee, and while in its employ. The facts are sufficiently stated in the opinion of- the Court. Upon the introduction of all the evidence, the court gave the general affirmative charge for defendant. There were verdict and judgment for defendant, and plaintiff appeals.

Appkal from the Circuit Court of Jackson. Tried before the Hon. J. A. Bilbro. This, action brought, by L. T. Webb against the Southern Bailroad Company, to recover damages for the alleged breach of a contract of affreightment. The complaint contained two counts. The first count was in the Code form against a common carrier upon a bill of lading.

Tried before the Hon. James A. Bilbro. Action of ejectment by the appellant against the appellee to recover possession of the lands described in the complaint. The defendant disclaimed as to all the land sued for, except that used by it as a right of way. This is the second appeal in this case. — Southern Railway Co; v. Choate, 119 Ala. 381. The facts necessary to an understanding of the decision are set- forth in the former opinion, to which reference is made.

Tried before tbe Hou. William S. Anderson. Statutory action in tbe nature of ejectment by Cary W. Butt, et al., against: appellee, to recover tbe lands described in the complaint, as follows: A portion of tbe east half of the southeast quarter of section 34, township 4, south, range 2 west, commencing at a point 14.29 chains north of the south boundary line of said section 34, and 20 chains west of the section line between sections 34 and 35; running thence north, along the…

Tried before the Hon. J. C. Richardson. This vms a statutory action of ejectment brought by the appellant, Jeff Johnson, against the appellees 'to recover certain lands specifically described in-the complaint. The plaintiff based his right to recover the lands sued for upon the fact that he was the ihalf-brother of Mose Johnson, who owned said lands and Avas in possession of them at the 'time of his death.

Tried before tbe Hon. A. A. Coleman. This -was an action brought by Gertrude T. Jones, as administratrix of the estate of Elbert N. Jones, deceased, against the Southern Railway Company, and sought- to recover damages for the death of the intestate, which iras alleged, to hare been caused by the defendant. No statement of the facts, other than those contained in the opinion, is deemed necessary. From judgment for plaintiff, defendant appealed. Mosby v. 0.

Circuit Court of Calhoun. Tried before the Hon. John Pelham. This was an action by the appellee against the appellant upon an account.

Tried before the. Hon. John Moore. This was a statutory action of. ejectment, brought by William S. Bates against J. N. Campbell and others, to recover certain lands described in the complaint. The defendants pleaded the general issue. The plaintiff introduced a. deed, purporting to have been executed by one George Stewart in the presence of one witness, B. L. Boyd, and bearing date, September 6, 1855.

Tried before the Hon. Henry B. Foster. ■ Action by the appellant against the appellee to recover damages for carrying him to a point beyond his destination, he being at the time a passenger on its railroad.

Appeal, from Chancery Court of Marengo. Heaixl before Hon. Thos. H. Smith. The appellants. M. T. Lewman & Go., had a contract with the United States for the erection of certain locks and dams, numbered 1, 2 and 3, in the system of improvement of the Warrior and Tombigbee rivers.

Tried before the Hon. A. A. Coleman. This action was brought by the appellee, Cora Burgess, against the appellant, to recover damages for personal injuries alleged to have been sustained by her, while a passenger on a freight train of the defendant.

Heard before the Hon. W. H. Simpson. The petition in this case was filed by the appellee, A. E. Hewlett, as register in chancery for Cullman county, against the appellant and others, as members of the board of revenue of said county.

AppExVL from the City Court of Montgomery, in Equity. Heard before the Hon. A. D. Sayre. The hill in this case was filed July 30, 1904, by appellees, Edmund Davis and Alfred Davis, against the appellants, and sought to have a deed, made by the former to the latter in January, 1905, declared a mortgage.

Tried before the Hon. Jno. A. Bilbro. This was a statutory action in the nature of ejectment. The facts of the case are sufficiently stated in the opinion. Monroe r,. Arthur, 126 Ala. 362; Fea,me v. Beirne., 129 Ala. 435. Grider v. Mortgage, Go., 99 Ala. 281; Guldens v. Bolling, 99 Ala. 319; Mortgage Go. o. Jetones, 105 Ala. 347; Mortgage Go. v. Peeples, 102 Ala. 399; Mortgage (-o. v. Payne, 107 Ala. 578; McLendon r. Mortgage Go., 119 Ala. 518; Ghwney v. Nathan, 110 Ala. 254.

Tried before the Hon. N. D. Denson. This was an action for damages, brought by the appellee, William Cleghorn, against the appellant.

Tried before the Hon. A. D. Bay re. This: was an action brought on the 25th day of July, 1903, by Mrs. J. C. Letcher, appellant, against the Traders’ Insurance Company, appellee, for $200.00, the value of certain household and kitchen furniture, etc., alleged to have been insured under a certain policy of insurance in said company, and which was alleged to have been destroyed by fire on the 31st day of December, 1902.

Tried before Hon. John Moore. This action was brought by the appellee, as administratrix of the estate of W. Lowery Waller, deceased, against the appellants, W. P. Vandiver and Co. and others, based on an attachment bond, and sought to recover damages for the wrongful, vexatious and malicious suing out a writ of attachment against the property of the plaintiff’s intestate during his life time.

Heard before tbe Hon. John P. Hubbard. Tbe appeal in this case was prosecuted by tbe substituted defendant from a judgment in favor of tbe plaintiff in an action of detinue; and tbe appellant assigns' as error tbe giving of tbe general affirmative charge in favor of tbe plaintiff.

Heard, before the Hon. John C. Carmichael. The bill in this case was filed by appellant, who avers himself to be the owner of seventy-five shares of the capital stock of the Birmingham Union Railway Company, and seeks to set aside a transfer of the assets of said corporation, alleged to' have been made in 1891, to the Birmingham Railway & Electric Company.

<p>Appeal from Chancery Court of Jefferson.</p> <p>Heard before Hon. A. H. Benners.</p> <p>This was a bill filed by Laura L. Chambers, appellant, seeking to exercise, as the assignee of a judgment creditor, the right of redemption conferred by section 3510 of the Code. The facts of the case are sufficiently stated in the opinion.</p> <p>-Walden v. Speigner, 87 Ala. 379; Jones v. Smith, 92 Ala. 455; Ruse v. Bromberg, 88 Ala. 619.</p> <p>Pritchard v. Sweeny, 109 Ala. 656; Terry v. Allen, 132 Ala. 6.59; Powers v. Andreto, 84 Ala. 291; Aiken v. Bridgford, 84 Ala. 295; Commercial B. E. & B. A. v. Parker, 84 Ala. 300; Burke r. Brearer, 133 Ala. 392; Parmer v. Parmer, 74 Ala. 285; Childress v. Monette, 54 Ala. 317; Otis v. McMillan, '70 Ala. 46; Otoen v. Kilpatrick, 96 Ala. 424.</p>

Heard before the Hon. Titos. H. Smith. Tlie bill in tins case av«s filed by tbe appellee against the appellant. The averments of the bill, necessary to an understanding of the decision, are sufficiently set forth in the opinion. The purpose of the bill wa.s to have the further administration of the estate of Morris Greenhood, deceased, removed into the chancery court of M'obile county, and to lequire flue executrix to give bond.

Tried before the lion. Wm. S. Anderson. Statutory action in the nature of an action of ejectment by the appellant against the appellee.

Tried before the Hon. John H. Disque. The facts in this case are sufficiently stated in the opinion. The appellant derived title from a purchase made under a decree of the chancery court, in the case of McOarver, et al. v. J. H. Moragne, et al., in which suit John B. Moragne was a defendant.

Heard before the Hon. W. L. Parks. This bill was filed by J. L. Hall, L. B. Farley and H. M. Hall, as trustees, and as assignees of a judgment re-recovered by the Farley National Bank against the Alabama Terminal and Improvement Company.

Tried before the Hon. John H. Disque. The facts in this case are sufficiently stated in the opinion. The stipulations in a policy of insurance as to what shall operate as a forfeiture do- not interfere with the rule of law as to waiver of forfeiture clauses. Such waiver may be shown by parol, and even by acts, declarations or conduct on the part of the insurer. — Queen Ins. Go. v. Young, 86 Ala. 424; Bam-tun v. Am. Mitt. Life Ins. Go., 25 Conn; Knickerbocker Ins.

Tried before the Hon. John Moore.- Tlie appellees brought suit against the appellant in the circuit court of Dallas county, Alabama, to recover $500, damages for the negligent killing or injury of appellees’ two mhles. The complaint contained four counts.

Heard before the Hon. A. D. Sayre. The proceedings in this case were had upon a petition filed by the State of Alabama., on the relation of the Medical College of Alabama, addressed to the judge of the City Court of Montgomery, in wliich it was averred that the Medical College of Alabama was incorporated by an act of the general assembly of Alabama creating said corporation, establishing trustees therefcn, providing for the management and discipline of the same and…

. Heard before the Hon. Samuel B. Browne. The facts of the case are sufficiently stated in the opinion. “The authority of the Probate Court to issue licenses to retail vinous or spirituous liquors, as conferred by the statute, section 1544 of the Code of 1876, is ministerial, and not judicial in its nature.” — Grider v. Tally, 77 Ala. 422; Tally v. Grider, 66 Ala. 119.

Tried before the- I-Ion. Cpias. W. Ferguson. This action was brougiit by the appellees against the appellant, as license inspector of the city of Birmingham, to recover a license tax which they were forced to pay, under an ordinance of the city of Birmingham, for selling lager beer at wholesale. The 'trial was had by the court below on an agreed statement of facts, and a judgment was rendered in favor of the plaintiffs, from which the present appeal is prosecuted.

Tried before tbe Hon. Peyton Norvell. Tliis action was brought by the appellee, Sarah Ann Ferguson, as the administratrix of the estate of John A. Wilson, deceased, against.the Kansas City, Memphis & Birmingham Railroad Company, to recover' damages for the alleged negligent killing of the plaintiff’s intestate, the plaintiff claiming .§20,000 damages.

Heard before the Hou. Richard B. Kelly. The bill in this case was originally filed by Ellen C. Shapard, administratrix of the estate of W. B. Shapard, deceased, against the appellants, R. C. Sandlin and his wife, Nelie Sandlin, and the Bank of Opelika, for the purpose of having corrected a misdescription of property conveyed in a mortgage from Sandlin and wife to the Bank of Opelika, and by it transferred to W. B. Shapard, and of having the mortgage, as so corrected,…

Tried, before the Hon. A. A. Evans. This was an action of assumpsit upon the common counts, and was commenced by an attachment sued out by the plaintiff against the defendants, they being nonresidents. The facts of the case, necessary to an understanding of the rulings of the court upon the evidence which is presented for review, are sufficiently stated in the opinion. The court, at the request of the defendants, gave to the jury seven written charges.

I-IearcL before the Hon. J. C. Richardson. Held: — “A proceeding to supersede is regarded in the nature of a bill in equity, but the same strictness in pleading is not required; and where it seeks relief against an affirmed judgment, on the ground that it has been satisfied by the payment of another judgment against a joint tortfeasor, which does not operate a satisfaction as to…

Tried before the Hon. William S. Anderson. This was a statutory action of ejectment originally brought by R. M. Sands, as administrator de bonis non of the estate of Thomas Gretopull, deceased, against the appellant, Mary Antonio Hickey, to recover a certain lot or parcel of land in the City of Mobile, which is specifically described in the complaint.

Heard before Hon. W. H. Simpson. The bill in this cause was filed by the appellant, Thomas W. Crow, against tlie appellee, and others named in the opinion. The purpose of the bill, and averments thereof, and propositions raised by demurrer are shown by the opinion. A demurrer to the bill was sustained, and therefrom the complainant takes this appeal.

Heard before the Hon. William H. Simpson. The bill in this case was filed by the appellee, Susan B. Allen, against the West Point Mining and Manufacturing Company, a body corporate under the laws of Alabama, the United States Iron Company, a body corporate under the laws of New Jersey, and others. The facts of the case are sufficiently stated in the opinion. 1 Pomeroy’s Eq. Jur., sections 134, 135; 1 Pomeroy’s Eq.

Tried before .the Hon. G. K. Miller. . This was an action by the appellee, a riparian owner, against the appellant to recover damages for the diversion, by the appellant, of water from a stream running through appellee’s premises.

Tried before the Hon. John Peli-iam. This was a statutory action of ejectment, brought by the appellee, Lily Simpson, against the appellants, to recover certain lands specifically described in the complaint. The plaintiff claimed the lands as an heir of John A. Simpson, deceased. The defendants claimed title from the purchaser of the lands at an administrator’s sale, which was held in accordance with an order of the probate court of Cleburne county.

Heard before the Hon. D. W. Speaks. The proceedings in this case were had upon a petition filed by the appellant, Willie Emma Norwood, addressed to the judge of the eighth judicial circuit of Alabama, asking for a mandamus ‘to be issued commanding the appellee, J. E. Clem, as clerk of the circuit court of Limestone county, to issue an execution on a judgment which had been recovered in favor of the petitioner. The facts of the case are sufficiently stated in the opinion.

. Appeal from the City Court of Talladega. Tried before the Hon. G-. K. Miller. This was a suit in detinue, brought on the 21st day of January, 1901, by the appellee, A. J. Thurman, against the appellant, J. D. Mathis, for certain tools. The evidence for the plaintiff on the trial showed that he purchased the tools, involved in the suit, as the property of one W. A. Bean, at a sale under an execution issued upon a judgment rendered in favor of A. J. Thurman against said IT.

Heard before tlie Hon. A. A. Coleman. This preceding was in the nature of quo warranto} and was instituted by the information of the State of Alabama on the relation of O. B. Brotherton, addressed to the judge of the circuit court of Walker county, in Avhich it was averred that the respondent, Peyton Norvell, urns usurping and unlawfully holding and exercising the office of judge of the Walker county Law and Equity Court.

Tried before the Hon. T. S. Sayre. This was an action of assumpsit brought by the appellee against the appellant. The facts of the case necessary to an understanding of the present appeal are sufficiently set forth in the opinion.

. Appeal from tlie City Court of Montgomery, in Equity. Heard before the Hon. A. D. Sayre. The original bill in this case was filed by the appellee, the American Freehold Land Mortgage Company, against the appellant, J. S. Pinckard, and one Leftwich and his wife. The purposes of the bill, the amendment thereof, and the other 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. John C. Carmichael. This was a bill filed by the Alabama National Bank against P. T. Vaughan, E. E. Bryant and others, as stockholders-of the Coal City Coal & Coke Company, to enforce a balance due by them on stock held in said last named corporation.

Heard, before the Hon. Richard B. Kelly. The bill in this canse was filed by the appellant, the ' Alabama Girls’ Industrial School, against the appellee, H. G. Reynolds, charging that he, as president of the. school, had, in the conduct of his affairs, becomé largely indebted to the complainant, and asking for discovery, and the production of books and documents held by the defendant.

Tried before tlie Hon. John Pelham. This action was brought by the appellee, Will Haley, and sought to recover of the defendant, the Western Union Telegraph Company, damages for the failure to transmit and deliver a telegram delivered by plaintiff and accepted by the defendant for transmission and delivery to the addressee.

Tried before the Hon. A. D. Sayre. This was an action brought, on the 16th day of April, 1901, by Joseph Geiss, doing business as the Alabama Lumber Company, appellee, against the Alabama Chemical Company, appellant, for $1,133.18 and interest, price of lumber and' building material sold on the 1st day of January, 1901, by plaintiff: to defendant.

Heard before tbe Hon. William Simpson. The bill in tills cause was filed under Section 809 of tbe (Vide to quiet tbe title to the mineral rights in the E. half of N. W. quarter of Sec. 15, Tp. 3, R. 10, E. Both parties claim title under mesne conveyances from B. F. Adkins. On April 4, 1884, B. F. Adkins attempted to convey the mineral rights in lands in question to J. C. Warner and L. S. Colyar. and it was from the last two named persons complainant (appellee) obtained title.

Tried before the Hon. A. H. Alston. The complaint contained four counts, but as to the first and third counts, the general affirmative charge was given for the defendant.

Heard before the Hon. W. R. Francis, Special Chancellor. ■ The bill in this case was filed by J. J. Cudd against Millie A. Guyer, the widow of Simon L. Guyer, deceased, and against his heirs and R. H. Sample and J. S. Turney, and sought the foreclosure of a mortgage on certain lands. The bill alleges the execution of the mortgage, sought to be foreclosed, by said Millie and Simon Guyer, and that they had also executed mortgages to said Turney and Sample separately.

Heard before the Hon. William H. Simpson. The bill in this cáse was filed by the appellees, Trigg, Dobbs & Company, as judgment creditors of H. B. Greenwood, against said Greenwood and his mortgagee.

Heard before the Hon. John H. Disqcie. This was a garnishment suit, in which the defendant filed a claim of exemptions to the amount shown to be due him by the garnishee in its answer. The garnishee was the Alabama Steel & Wire Company. Upon the introduction of all the evidence, the court, on the motion of the defendants, dissolved the garnishment and ordered the same dismissed and discharged the garnishee; and •from this ruling, the plaintiff duiy excepted.

<p>Appeal from the City Court of Gadsden, in Equity.</p> <p>(Heard before the Hon. John H. Disqtje.</p> <p>The facts of this case are sufficiently stated in the opinion.</p> <p>Taylor, et al. v. Crook, et al., 136 Ala. 354; Marljle City v. Colder,, 110 Ala. 377; Moore v. Lesser, 33 Ala. 237; Coleman v. Camp, 36 Ala. 159; Aslwrst v. McKenzie, 92 Ala. 484.</p>

Tried before the Hon. E. B. Almon. This was an action brought against the appellant to recover damages to a mare, alleged to have been caused by defects in a bridge, which defendant had erected at a place where its railroad crossed a public road.. From a judgment for the plaintiff, the defendant appealed.

Tried before the Hon. Thomas W. Coleman, Je. This action was brought by Prank Martin, as administrator of the estate of Sydney Olive, deceased, against the appellee, the Woodstock Iron- Company, claiming damages for the death of plaintiff’s intestate, — alleged to have been caused by the defendant, — and revived in name of J. H. King as such. There are ¡three counts in the complaint.

Heard before the 1-Ion. J. W. Mabby. It will only be necessary to set out such facts as do not sufficiently appear in the opinion of the court. The mortgages by Thomas Gill Gayle to complainant, Anna M. Fry, and to Billups J. Gayle, were each executed and recorded on December 15, 1880.

Tried before the Hon. Samuel B. Browne. The proceedings in this case were had upon a petition filed by the State of Alabama, on the relation of John Case, asking for a writ of mandamus to- be issued to the appellee, Pat J. Lyons, mayor of the city of Mobile, to restore the said Case to- the office of chief of police, from which office he had been removed by said Lyons, as mayor. The facts of the case are sufficiently set forth in the opinion. „

Heard, before the Hon. John C. Anderson. This was a. statutory action of ejectment, brought by the appellee, Zedora Hoven, against the appellant, John A. Bolen. Both parties claimed title from a common source, that is, one Odosia Stringer. On the trial, the plaintiff proved that she was the only child and heir of Odosia Stringer, who died in 1868, leaving surviving her, her husband, T. E. Stringer, and the plaintiff. That T. E. Stringer died in the year 1902.

Tried before the Hon. O. Kyle. This was a statutory action of ejectment, brought by George Malone, Ernest Hiñe, B. H. Richardson, T. J. Turpentine, J. J. Turrentine, I-I. M. Lewis, T. M. Hobbs, W. T. McDonald, and TheO' Westmoreland, as trustees of the Athens station of the Methodist Episcopal Church, South, against Ida R. LaCroix.

Heard before the Pión. W. L. Parks. No statement of facts is deemed necessarj in this cause. The existence of a debt is absolutely necessary before a deed absolute on its face can be declared a mortgage. — Vincent v. Walker, 86 Ala. 333; Douglas v. Moody, 80 Ala. 61; Mitchell v. Wellhain, 80 Ala. 16; Peeples v. Btolla, 57 Ala. 53.

Heard before Hon. Thomas H. Smith. Tlxe bill in this cause, for an accounting and redemption of certain lands from the operation of a mortgage, was filed by tlie appellees, James Jefferson and John Swaine, agáinst J. M. Sadler, C. B. Bailey, and tbe British and American Mortgage Company, Limited. The allegations were to the effect that the complainants had executed a mortgage on the lands described in the bill, to the defendant, J. M. Sadler.