Volume 144 — Alabama Reports

Ill Supreme Court. The appellant, James Black, was convicted in the county court of Geneva County, a court of record, of as;sault and battery and fined. The prosecution was begun by affidavit made before Purvis clerk of the circuit court, and warrant issued by the clerk for his arrest.

Hec.ru before tlie Hon. A. A. Evans. Ben Martin was indicted for the murder of Willis Fort, l>v shooting him with a pistol.

Heard before Hon. W. H. Thomas. Tlie defendant was tried and convicted of murder of Alex Patterson and sentenced to tlie penitentiary for twelve years. The facts necessary to a proper understanding of the opinion are set out there. Charge 1, requested by the defendant was the general affirmative charge. Charge 2: If the jury believe from the evidence that the defendant struck Alex Patterson with a rock which caused his death, the jury must find the defendant not guilty.

Heard before the Hon. W. W. Haralson. The defendant was indicted as follows: “The grand jury -of said county charge that before the finding of this indictment, that T. J. Harrison, whose Christian name is to the grand jury otherwise unknown, unlawful^ and with malice of forethought killed Tom Linnville by shooting him with a gun.” “The grand jury of said county further charge that before the finding of this indictment, Thomas J. Harrison unlawfully and with malice of…

Heard before Hon. J. T. Lackland. The defendant ivas convicted of murder in the first degree and sentenced to the penitentiary for the term of his natural life. Just prior to arraignment, and when called upon for his plea the defendant moved the court to quash the indictment for that the minutes of the court did not shew an organization of the grand jury which returned the bill. The motion was overruled.

Aitgal from Monroe Circuit Court. Heard before Hon. John T. Lackland. The defendant was indicted, tried and convicted for the murder of Wade Moore by shooting him with a gun. The motion to quash the indictment, the exceptions to evidence and other matters necessary to a proper understanding of the opinion sufficiently appear therein. The motion to quash the indictment should ■ have been sustained.

Heard before Hon. John T. Lackland. On ¡the trial the State offered to introduce the written testimony of J. P. Klausen, taken down at the preliminary hearing and subscribed by him. As a predicate for the introduction of this testimony ,the State offered D. K. Smith, who testified ¡that he knew J. P. Klausen, who testified on the preliminary trial of the defendants, before judge.

Heard before the lion. J. C. Richardson. The appellant was indicted at the March term 1905 of the Crenshaw circuit court for an assault with intent to murder AY. T. Board, convicted, and sentenced to five years in the penitentiary. After the proof was all in the defendant moved to quash the indictment because it was not signed or found by the solicitor of the second judicial circuit. This motion was overruled.

Heard before Hon. O. J. Semmes. The appellant was indicted and convicted of an assault with intent to commit murder.

Heard before Hon. W. H. Thomas. Tlie defendant and Boscoe Brown were jointly indicted for robbery, and charged with taking two' nickels and one dime of tlie lawful coin of the United States of America, of the value of twenty cent's, from the person of Ike McDonald, by violence and against his will. The appellant. Barddell, was tried separately, and convicted and sentenced to the penitentiary for a period of eleven years.

Appkal from Colbert Circuit Court. Heard before the Hou. E. B. Almon. The defendant was indicted for robbery of a large sum of money and a pocket book of the value of fifty cents. The first count describes the money by pieces, and the second count says the number and denominations of the money was unknown to the grand jury, but each count describes and gives the value of the pocket book. The defendant was convicted and sentenced to twenty-three years in the penitentiary.

Heard before Hon.'w. H.rThomas. The defendant and Will McCoo were indicted under five different indictments by the grand jury of the Mont•gomery City Court for grand larceny from a chicken or hen house and for burglarizing a chicken or hen house, and also for burglary of a dwelling house. The indictments allege the taking of different articles belonging to different people, each indictment alleging a separate offence.

Heard before Hon. A. H. Alston. The defendant was indicted, tried and convicted of seduction. Hon. A. IT. Alston, Supernumerary Judge, held the regular term of tlie Walker Circuit Court, and at the regular 'term made an order for an adjourned term of the same court at a later day. The defendant was tried and convicted and sentenced at the adjourned term, held under this order.

Heard before Hon. W. H. Ti-iomas. The indictment charged that Jim Thomas, with intent to injure or defraud his employee, T. L. McCullough, entered into a contract in wilting for the performance of service as a farm laborer, and thereby obtained the sum of seven dollars from- said T. L. McCullough, and with li like intent and without just cause, and without refunding said money refused to perform said services as a farm laborer, etc. The evidence tendered to show that Jim…

Heard before Hon. Wm. H. Thomas. The indictment in this case is in the following language : “The C-rand Jury of said County charge that before the finding of this indictment Walter Morris, alias Charlie Smith, alias Charles Morris, not in the manner provided by law, changed or altered 'his name with the intent to avoid the payment of a debt due by him to H. WFancher, etc. The evidence showed that before the enactment of the statute, under which the indictment was drawn,…

<p>Appeal from Autauga Circuit Court.</p> <p>Heard before Hon. S. L. Brewer.</p> <p>The defendant was indicted for arson. The indictment contained two counts as follows: 1st, The grand jury of said county charge that before the finding of this indictment, Bundly Stoudenmire wilfully set fire to or burned a dwelling house of Mrs. E. A. King, in which there was at the time no human being. 2, The grand jury, -etc., that Bundly Stoudenmire wilfully set fire to or burned a dwelling house of Mag Underwood in which there was at that 'time no human living. Demurrers were interposed as follows: 1, Because said count fails to allege that the defendant wilfully set fire to or burned an inhabited dwelling house. 2, Because said count fails to allege that the defendant wilfully set fire to or burned an inhabited dwelling house of Mrs. King or any other persons. 3, Because said count is insufficient at law to charge arson in the first degree. 4, Because said count does not allege that the defendant wilfully set fire to or burned an uninhabited dwelling house in which there was at the time no human being. 5, Said count is insufficient to charge the defendant with arson in the second degree. These grounds were assigned to count 1, and, with a change of name to fit count two, were adopted as to that count.</p> <p>Tlie' demurrers were overruled by the court add upon the trial the defendant ivas convicted of arson in the first degree and sentenced to the penitentiary for a period of ten years. From this conviction he prosecutes an appeal.</p> <p>argued that the demurrers to .each count of the indictment should be sustained, citing, § 4336 and 4923, subd. 6, Code 1896.</p> <p>argued that the clause in the first count in ihe indictment. “In which there was at the time no human being,” is not descriptive of any element of the offence, is surplusage and may •be disregarded. — Paine v. State, 89 Ala. 26. And with these words out of both counts, they are in code form.— § 4923, Code of 1896 and cases cited; Smtds v. The State, 82 Ala. 31; Benjamin v. The State, 121 Ala. 26. The term dwelling house, ex vi termini, imports a place inhabited. — Smith v. Birmnigjimn Water Works Go., 104 Ala. 315, 5 h. n. 324; 10 A. & E. Ene. L. (2nd ed.j, 353 et seq.; Q-ober v. State, 140 Ala. 153.</p>

Heard before Hon. Thomas W. Coleman, Jr. The appellant was indicted, tried and convicted for the offense of selling liquor to a minor. The facts sufficiently appear in the opinion. Under the evidence in this case, the sale was made to Roberts, the principal, through Ray Smith, the minor. Smith acquired no title to the property, and the sale was therefore to Roberts. This was not a violation of the law. — Section 5078, Code 1896.

Heard before Hon. P. N. ITickman. The defendant was indicted, tried and convicted qf assault and battery by tbe Geneva County Court.

Heard before Hon. P. N. Hickman. The appellant, was tried in the Geneva County Court on an affidavit and warrant issued by a Justice of the Peace returnable to said court under.the provisions, of the act creating a court of inferior jurisdiction styled “The County Court of Geneva County, charging him with carrying concealed weapon. When the case was called defendant announced ready and entered a plea of not guilty.

<p>Appeal from Jackson Circuit Court.</p> <p>Heard before 1-Ion. W. W. Haralson.</p> <p>The defendant was indicted, tried and convicted for violating the road law of Jackson County. The facts sufficiently appear in the opinion.</p> <p>The act being intended as a complete system for the maintenance of the public roads of Jackson County, supersedes and repeals all other laws in reference thereto. The act does not constitute the failure to- work the public roads a crime. It provides a mere penalty recoverable alone by civil action, besides the violation of the local law will not justify prosecution under a general law without specific legislation to that end.</p> <p>The act in question is void as violative of Sec. 106 of of the Constitution of 1901.</p> <p>The proof by affidavit of the intention to introduce and pass the bill in question sufficiently shows the affirmative facts necessary to be shown and it sufficiently appears on the journals of the House and Senate. Sisk v. Cargile, 138 Ala. 154; Lancaster v. Gaford, 139 Ala. 372; Wallace v. Board of Revenue, 140 Ala. 491; Tillman v. Porter, 38 So. 647; Alford v. Hicks, 38 So. 752; Law v. State, 38 So. 798; Town of Elba v. Rhodes, 38 So. 808; Brame v. State, 38 So. 1031.</p>

Heard before ITon. H. A. Pearce. The appellant and John Fair were jointly indicted for the murder of Reddick Skipper by shooting him with a gun. On motion of defendant Skipper a severance was granted and said Skipper was tried alone.

Heard before Hon. A. C. Edmondson. This is an appeal from a judgment and order of the judge of probate of Pike county on habeas corpus proceedings denying petitioner relief and remanding him to the custody of the sheriff of Pike county.

Heard before Hon. E. B. Almon. In this case, 'the appellant Dee Shelton was tried under an indictment charging him with the murder of William, alias Mark Hammonds, convicted and sentenced to the penitentiary for. life. The evidence tended to show that on a Sunday morning the family of the deceased went 'to church, leaving him at home.

Heard before Hon. H. A. Pearce. The defendant was indicted and tried for the murder of Tommie Jackson, and convicted of manslaughter in the second degree. The evidence tended to show that the deceased was shot and died three days later from the effects of the wound. It was further shown that on the day of his death and on the day before, deceased repeatedly declared that he was going to die.

Heard before tbe Hon. I). A. Greene. The appellant in this canse, Dave Laws, was tried under an indictment charging him with the murder of Neil Mullen. He was convicted of manslaughter in the first degree, and appeals. It is unnecessary to set out the proceedings on drawing the special venire, or on organization of the jury, as they are sufficiently shown by the opinion for an understanding thereof.

Heard before Hon. H. A. Pearce. ■ Tlie appellant- in this case, Will Peel, was indicted for the murder of Will Canter, by shooting him with a gun, and was contacted of murder in the second degree and sentenced to the penitentiary for twenty-five years. On the trial of the case the defendant moved to quash the indictment, which motion was overruled by the court, and to this ruling the defendant duly excepted.

Tried before the Hon. A. A. Evans. The appellant in thiá case, Edgar Ferrell, was triea before the Recorder of the City of Opelika upon a charge for gaming, and was convicted and fined $40.00. From the judgment of conviction, he appealed to the Circuit Court of Lee County.

Heard before Hon. A. D. Sayre. This- is an action for damages by tlie Administrator of Russell, an engineer in tbe employ of defendant, who was killed while operating a t-iain on defendant’s track. It is unnecessary to-.sfev-Out the complaint in full, as the action of tbe trial court upon tbe demurrers to tbe complaint was beld to be waived.

.Appeal from Birmingham City Court. Heard, before Hon. Charles A. Senn. This is an action for damages caused by the falling in of the roof of one of defendant’s mines and injuring plaintiff. There were several counts in the complaint but all were eliminated except the fourth count as amended and the sixth count.

Heard before the Hon. J. A. Bilbko. This is an action for damages growing out of the killing of appellee’s intestate by certain tram cars used and operated by the appellant corporation in the conduct of their business of mining coal.

Heard before Hon. G. W. Ferguson. Appellant, as the administratrix of Samuel Brown, deceased, brings this action for damages on account of the death of her intestate.

Heard before Hon. B. C. Jones. This was au action by the administrator of Turney Bennett, deceased, who was at the time of his death, an employe of the Appellant.

Heard before Hon. Charles A. Senn. Action by Benjamin F. Thomas, as administrator of the estate of William H. Thomas, deceased, against the Sloss-Sheffield Steel & Iron Company, for damages for the alleged wrongful killing of plaintiff’s intestate. From a decree sustaining demurrers to the counts of the complaint, he appeals.

Heard before Hon. John H. Dlsqtje. This is an action for damages on account; of the death of appellee's intestate, who was an employe of appellant, and the original complaint contained six counts. Demurrers were sustained to all of these counts, and the complaint was amended by filing an amended count number five and adding count seven, eight and nine.

Heard before Hon. Charles A. Senn. This was an action by appellee to recover damages for injury to his hand caused by a stationary engine which he was operating. It ivas brought under the employer’s liability act and counts on the defect in the ways, works, machinery or plant of defendants. It is alleged that the engine ivas part of these and ivas defective, but no special defect is pointed out by the complaint.

Heard before Hon. E. B. Almon. This was an action for damages for personal injury to an employe. It was begun by the person injured, A. A. Hughes, who died after the trial in the lower court and befoie this cause was submitted in this court. The cause was revived in the name of G. M. Bridges, as Admr. of the estate of Hughes.

Heal'd before Hon. H. E. Pearce. The case is cue for damages for personal injuries received by an employe while in the discharge of his duties, and the complaint is in the following language: Count 1.

Heard before Hon. A. H. Sayre. This is an action by appellant to recover of appellee damages for personal injuries sustained while in its employ alleging defects in the1 ways, works, machinery and plant of the defendant. The injuries happened to plaintiff in a wreck of a passenger train on which he was an employe at or near Claybanlc trestle, in Hale county.

Heard before Hon. A. D. Sayre. Tbis is an action for damages by tlie administratrix of Will Hinesly suing to recover for tlie death of her intestate, wlio was an employe of the defendant corporation in tlie capacity as brakeman on one of its freight trains. The complaint was in tlie following language. Count 1.

Heard before 1-Ion. A. A. Coleman. This is an action brought by McQueen as Admr. of Edwards to recover damages for the death of Edwards who was an employe of the defendant company.

Heard before Hon. E. B. Almon. ‘This was an action by Holloway as administrator for damages for the death of his- intestate, an employe of the defendant. The pleadings are not necessary to be set out, ars the opinion does not discuss them.

Heard before Hon. A. D. Sayre. Tbe appellee was employed by tbe appellant to do some work in tbe elevator shaft between tbe first floor and tbe basement of tbe bank building, and, after notifying tbe elevator- boy that be bad gone to work and not to bring tbe elevator down to tlie first floor any more until so notified, be began bis task, and while working at it tbe elevator was brought clown by the elevator boy and appellee was struck by the elevator, crushed, bruised, and…

Heard before Hon. Charles A. Senn. Action by John R. Livingston against the Birmingham Ry., Light & Power Co., to recover damages for personal injuries received by appellee in a collision between one of defendant’s cars and a railway train on which appellee was mail clerk.

Heard before the Hon. John Pelham. This suit was brought by the appellee, E.- L. Elwell, against the appellant, and sought to recover damages alleged to have been caused the plaintiff in'his person, and also by injury to :his horse and wagon.

Heard before I-Ion. J. C. Richardson. This action was brought by the appellee, W. L. Perkins, as the administrator of the estate of Isaac R. Dykes, deceased, and sought to recover from the defendant damages for personal injuries causing the death of plaintiff’s intestate. The complaint contained several counts, but, as the opinion takes notice of the averments of the sixth count only, it is unnecessary to set out any other.

Heard before tbe Hon. B. Clay Jones. This action was brought by the appellee, James A. Fulton, against the Alabama Great Southern Railroad Company, to recover damages for personal injuries alleged to have been suffered, by the plaintiff by reason of the negligence of defendant’s employes. As amended, the complaint contained ten counts. The court gave the general affirmative charge a®.to all of these counts, with the exception of the 4tii and 10th.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before the Hon. A. A. Coleman.</p> <p>This was an action brought by the appellee, Laura C. Enslen, as administratrix of the estate of Charles F. Enslen, against the appellant, the Birmingham Railway, Light & Power Company, to recover damages for the alleged negligent killing of the plaintiff’s intestate. The accident which it was alleged resulted in the death of plaintiff’s intestate was caused by the plaintiff being thrown from one of defendant’s cars by reason of a sudden jerk of said car. There was testimony on the part of plaintiff tending to show that 'in being so thrown from defendant’s car, the plaintiff intestate was thrown upon his head and as a result of the injuries sustained in the fall, he had cerebral meningitis, which was the disease from which he died. The testimony for the defendant tended to show that the plaintiff’s intestate was not thrown from the car by reason of a sudden jerk thereof, and that the cerebral meningitis which was the disease that immediately caused his death, was not superinduced by the fall.</p> <p>During the examination of Dr. R. A. Jones, a witness for the plaintiff, he testified that lie was a practicing physician and had been practising for 15 years. After the witness had testified as to the nature and cause of cerebral meningitis, he was asked by the plaintiff a hypothetical question, in which there was stated facts and circumstances corresponding to the way in which the injury to the plaintiff’s intestate was alleged to have been caused, and then asked him if Cerebral meningitis developed, if it would have resulted from the injuries described. The defendant objected to the hypothetical question asked the witness, upon the ground that it was not a projoer question for an expert, and that there was no proof of any suffering except the declaration of the decedent. The court overruled the objection, and defendant duly excepted. The witness answered that the cerebral meningitis would have been caused by the injury.</p> <p>The other facts of 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 jury several written charges, among which were the following: “4. If the jury believe from the evidence that the sole cause of the injury to plaintiff’s intestate which ultimately resulted in his death, was caused by a sudden jerk of the car, and that he acted only as an ordinarily prudent person would have acted in getting upon the step of the car, then your verdict must be for the plaintiff. 6. Although the jury believe from the evidence that plaintiff’s intestate was guilty of negligence, yet if the negligence of the defendant amounted to wantonness or willfulness, the plaintiff can recover, notwithstanding the negligence of plaintiff’s intestate, provided the jury believe that the injuries received caused or contributed to his death. 7. If the jury believe from the evidence that the death of plaintiff’s intestate was caused or contributed to by a sudden jerk of the car. while he was upon the steps of the car preparing to alight, and that at the time of the injury plaintiff’s intestate was not guilty of contributory negligence, your verdict must be for the plaintiff. 10. If the jury believe from the evidence that at the time of the injury to plaintiff’s intestate, if they believe he was injured, that the conductor of the car was looking at and knew plaintiff’s intestate was in the act of alig.htning a.t a regular stopping place and the conductor knowing this rang the bell for the motorman to proceed and he (the mot orinan) started the car with a sudden jerk and threw plaintiff’s intestate from the car, then in that event the defendant’s conductor was guilty of wanton or intentional negligence.” The defendant separately excepted to the court’s giving each of the several charges asked hv the plaintiff, and also separately excepted to the courts refusal to give each of the following charges requested by it: “1. If the jury believe the evidence in this case they must find for the defendant. 2. If the jury believe the evidnce in this case, they must find for the defendant on the first count of the complaint. 3. If the jury believe the evidence in this cause, they must find for the defendant on the second count of the complaint. 4. If the jury believe the evidence in this cause, they cannot find for the plaintiff on the second count of the complaint.”</p> <p>There were verdict and judgment for the plaintiff, sustaining her damages at $4,166.33. The defendant appeals and assigns as error the several rulings of the trial court to which exceptions were reserved.</p> <p>The testimony as to the expressions of pain and sufferings by the plaintiff’s intestate after the alleged injury, was inadmissible, and the court erred in allowing such testimony to be introduced. — Western Union Tel. Co. v. Henderson, 89 Ala. 510-521; L. & N. R. R. Co. v. Pearson, Admr., 97 Ala. 211; Loidsville & Nashville R. R. Co-, v. Orr, 91 Ala. 553; Buckalcuy, Admr. v. Tenn.Coal, Iron & R. R. Co.; Kennedy’s case, 130 N. Y. 654; Roche’s case, 11 N. E. Rep. 630.</p> <p>The court erred in giving the several charges requested by the plaintiff and refusing to give the several charges requested by the defendant. — Richmond & Danville R. R. Co. v. Freenum, 97 Ala. 294; So. & North Ala. R. R. Co. v. Sullivan, Admr., 59 Ala. 272; B. Tenn. Va. & Ca. R. R. Co. v. King, 81 Ala. 177; L. é N. R. R. Co. v. Tegner, Exec., 125 Ala. 593.</p> <p>The evidence in this case is plainlv and palpably opposed to' the evidence. — Wes-tern Ry. of Ala. v. Mutch, Admr., 97 Ala. 194; Teague v. Bass, 31 So. Rep. 4.</p> <p>The testimony as to- the exclamations of pain and suffering of plaintiff’s intestate, were admissible in evidence.- — Rowland v. Walker, 18 Ala. 749; Eckles & Brown v. Bates, 26 Ala. 655; Birmingham Union Ry. v. Hale, 90 Ala. 8; Phillips v. Kelly, 29 Ala. 628; Johnson v:Noi~thern Pac. R. R. Co., 47 Minn. 430; Fvrldns v. Chicago C. W. R. R. Co., 61 Minn. 31; Mayo v. Wright, 63 Mich. 32.</p>

Heard before the 1-Ion. Charles A. Senn. This was an action brought by the appellee, Cecil Douglass-, by bis next friend, against the Southern Railway Company, to recover damages for personal injuries sustained by the plaintiff by being run against by an engine and train of defendant.

Heard before Hon. A. H. Alston. This was an action by the appellee, Reuben Johnson, against the appellant, to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. It is unnecessary to note the various exceptions to rulings of the lower court on the pleadings and testimony. The evidence showed in effect' that the plaintiff came to Calera, for the purpose of there taking the defendant’s train for his home.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. A. A. Coleman.</p> <p>The complaint was filed by Christopher Gallagher a. minor by his next friend, Frank H. Gallagher, against Jake Wells and E. E. Williams, and was in the following words: Plaintiff claims of the defendants’ $10,000 as damages, for that, heretofore to-wit, on the 14th day of December, 1903, defendants had charge or control of the Bijou, a theatre in Birmingham, Ala., towit, at or near the corner of 3rd Avenue and 17th street, in said city; that at said time, there was a public alley .near to and back of said theatre and a bomb cartridge or ocher explosive substance was in said alley at or near the said theatre; that on said day, said bomb cartridge or other explosive substance by reason of being in said alley, Avas caused to explode and as a proximate consequence thereof, plaintiff aaJio was under fourteen years of age, Avas burned, shocked and otherwise injured by said explosion, he lost the sight of one eye, was crippled and disfigured for life, Avas made sore and sick, was caused to suffer great mental and physical pain, was rendered for a longtime unable to work and earn money, was rendered permanently and less able to work and earn money, his health and physical stamina was greatly and permanently impaired, his nervous system was wrecked and he was put to great trouble, inconvenience and expense for medicine, medical attention, care and nursing in and about his efforts to heal and cure his said wounds and injuries.</p> <p>Plaintiff alleges that said bomb, cartridge or other explosive substance was caused to' be or remain in said alley as aforesaid and said explosion occurred and plaintiff suffered said injuries and damages as aforesaid, by reason and as a proximate consequence of, the negligence of defendant’s servant or agent, acting within the line and scope of his authority as such in this to-wit: said servant or agent negligently caused said bomb, cartridge or other explosive to be or remain in said public alley.</p> <p>The second count was a practical copy of the first and alleged in addition thereto that the plaintiff’s servant or agent wantonly or intentionally caused said explosive, to be and remain in said public alley.</p> <p>Demurrers were interposed to these counts. The counts were amended by inserting in each count immediately after the words “defendant’s servant or agent" where they occur together in each of said counts, the words whose name is unknown to plaintiff.” Demurrers were filed to the counts as amended and the following grounds assigned. 1, Counts were vague, indefinite and uncertain. 2> Counts do not show that the defendant violated any duty which they owed to plaintiff and 3, It does not appear that the defendants are responsible for the explosive that injured the plaintiff. 4. It does not appear that the defendant’s knew or had reason to believe that the explosive would attract children. 5. It is not averred in said count how long the explosive remained in said alley. 6. It is not alleged in said count that any negligence of defendants contributed directly to produce the injuries complained of. 7. It is not shown that defendants’ knew or had reason to believe that the plaintiff would he near where said bomb was or remained.</p> <p>These demurrers being overruled, the defendants filed the general issue and three pleas of contributory negligence. Demurrers were sustained to the pleas of contributory negligence as answers to the second count. The defendant requested in writing the following charges which were refused.</p> <p>3. Even though you should believe from the evidence that the janitor did sweep the object out in the alley which exploded and injured plaintiff, you cannot render a verdict in favor of the plaintiff unless you also believe- from the evidence that the said janitor at the time he so swept said object out in the alley, knew that it was unexploded and dangerous to children.</p> <p>4. Even though you should believe from the evidence that the janitor did sweep the explosive substance out in the alley which injured the plaintiff, you cannot find for the plaintiff in this case unless you also believe from the evidence that said janitor knew at the time he so swept the explosive object out in the alley that it was charged with an explosive substance.</p> <p>5. If you believe the evidence you cannot find that the defendants were lessees and managers of the Bijou Theatre building, and were not at the time conducting or exhibiting a play or melodrama in such building during the week the Cross-Pacific Company was exhibiting their play in said building.</p> <p>6. I charge you that you cannot render a verdict in favor of the plaintiff in this case, unless you are reasonably satisfied from the evidence that the janitor knew that the object which injured plaintiff was an unexplocled object, and dangerous to children. Even though you should believe from the evidence that said janitor did -sweep or put the object which exploded and injured plaintiff out in the alley.</p> <p>There was judgment for plaintiff in the sum of $3,000.</p> <p>The demurrers to the complaint should have been sustained. The co-urt was in error in permitting the- testimony of the witness Gallagher. It was immaterial for two reasons: (1.) It was not restricted for a period of timé preceding the accident, and (2), it was not shown that appellants had any notice of the habits inquired about. The affirmative charge should have been given for the defendant. — Beetz v. Oity of Broohlin, 41 N. Y. St. 1009; Afflic v. Bates, 43 At. Rep. 539; Poland v. Earhart, 70 Iowa, 285; Malmberg v. Bartos, 83 111. App. 481; Mangum v. Atterton, L. R. Q. Exch. 239-4 H. & C. 388; besides, the plaintiff was guilty of contributory negligence. The 3rd, 4th and 6th charges refused to defendant should have been given. The 5 th charge should also have been given.</p> <p>No demur-rer was filed to the complaint as a whole but separate demurrers- were filed to each of the two counts. — Count 2 was eliminated by the affirmative charge. The demurrers to the remaining count were properly overruled. — Harriman v. Pittsburg, 12 N. E. 451; 44 Ohio St. 11; Nelson v. McClellan, 60 L. B. A. 793.</p> <p>The court did not err in overruling objections to the question to the witness, Gallagher. The court did not err in- giving the charges requested. The 'motion for a new trial is made by Wells alone. The defendant should be made a party by notice of the motion.</p>

Heard before Hon. A. A. Coleman. This was an action by Mary Bennett, a passenger for damages for injury received in alighting from a car of defendant. Demurrers were sustained to count 1 of the complaint. The averments of count 2 are sufficiently set out in the opinion. Count 3 counts on the negligence of the servant in charge or control of the car in starting said car suddenly while plaintiff was in the act of disembarking from the same.

Heard before Hon. J. A. Bilbro. This was an action by Guest as the administrator of the estate of Dean for damages for the death of Dean alleged to have been caused by the negligence of defendant’s servants. The issues were joined on counts 2, 3, G, 7, and 8. The third count proceeds on the theory that defendants agents or servants while operating a freight train in DeKalb County uncoupled it in the town of Ft.

Heard before Hon. Citas. A. Senn. An act by Martha M. Trott, as administratrix of the estate of Joseph Trott, deceased, seeking damages for the death of her intestate, caused by a pistol shot inflicted by a conductor on defendant’s railway line. The first count was Avithdrawn aftet it had been amended and after testimony was in.

Heard before Hon. A. A. Coleman. Action by James Mason against tbe Birmingham Railway & Electric Company for damages for assault and battery committed by defendant’s conductor. Charge requested by 'the plaintiff, and given by the court, and assigned as error, was as follows: “(1) Even though it be the duty of the conductor to keep James.

<p> Bill by Foreign Administrator to Foreclose Mortgage. </p> <p>1. Executors and Administrators; Foreign Administrator; Statutory Powers; Code ,§§ 359, 360. — The statutory powers conferred upon a foreign executor or administrator, who has complied with the requirements of § 359, Code of 1896, is not barred or abated to bring suit in this state by the prior appointment of a personal representative in the state.</p> <p>2. Same; Suit 6y; Limitation on Right of Domestic Representative. — When a foreign administrator has brought suit in this state under his stautory powers, the domestic representative is limited to the right of intervention if necessary for the protection of creditors, distributees or legatees residing within this state.</p>

Heard before the Hon. W. L. Parks. The bill in this cause was filed by the appellant, J. B. Wilson, and sought to enjoin the county of Pike from selling certain county bonds, authorized by a special election held under the act (Acts 1903, p. 90). No special statement of facts averred is necessary. •

Heard, before Hon. B. B. Kelly. This bill was hide by 1). O. Daugherty, William A. Speer, Jerome Silvey, W. A. Ward, J. B. Little and A. L. Bedwine, as individuals and as partners composing the firm of John Silvey & Company, against the. administrators and heirs of S. O. Stripling, deceased.

Heard before the Hon. R. B. Kelly. ■ The bill in this case was filed by the appellant against appellees to enjoin a threatened trespass upon land. It appears from the bill that complainant or his predecessors in title recovered the land in ejectment from the. respondents or those in privity with them, and also obtained a decree in equity quieting the title.

Heard before the Hon. Terry Rici-iardson. The bill in this case was filed by the appellant against the appellees, and sought to have1 subjected to the payment of complainant’s claim against Thomas Williams, deceased, certain real and personal property, and to' have certain conveyances declared null and void, and to enjoin those claiming to own the property sought to be subjected from interfering therewith.

<p> Statutory Bill m Equity to Quiets Title and Compel Determination of Claims to Real Estate. </p> <p>1. Statutory Bill to Quiet Title; What Possession Necessary to Maintain It. — To maintain a bill under the statute to compel the determination of claims to real estate and to quiet title thereto (Code, § 805, etc.), it is necessary that the complainant should have peaceable as contradistinguished from disputed possession pf the lands involved in the suit.</p> <p>2. Same; Same; When Plaintiff not Shown to Nave Peaceable Possession. — On a bill filed under the statute to compel the determination of claims to' real estate and to quiet title to the same, where it appears that the complainants claim title through their ancestry, who had actual possession of the property and built a small house on it and cultivated a portion of it; that upon said ancestry dying many years before the filing of the bill, the land was abondoned, the house disappeared, timber grew upon the clear lands which had become wild lands, but the respondents proved that for many years up to the hearing of the cause, they cut wood off the lands, sold timber therefrom, kept trespassers from going upon it, and paid taxes thereon, there is shown such a possession on the part of the defendants as will defeat the right of the complainants to maintain the bill.</p>

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before the Hon. John C. Carmichael.</p> <p>The facts1 in this case are sufficiently stated in the opinion.</p> <p>Cited Merritt et al. v. Elvrm, 22 S. 11. 514, 116 Ala. 278; Burke v. Taylor, 10 S. R. 129; Wilkmson et al. v. Willdnson- et al., 30 S. R. 578; Daugherty v. Powe, 30 S. R 524; Kennedy v. Marra-st, 46 Ala. 161.</p>

, Heard before the Hon. Rioi-iaed B. Kelly. The bill in this case was filed by the appellee, L. M. Brady, the wife of James N. Brady, against tbe said James N. Brady.

Thos. H. Smith. This was a bill filed by the appellee, William Young, against the appellants, Martha New and George New, to cancel a deed from Martha New to Charles New and one ■from Charles New to George New, made on June 16, 1809, as a cloud upon the title of complainant, or, in the alternative, to enforce a mortgage made by Martha Baker, subsequently Martha New, to the complainant on May 12, 1898.

Heard before Hon. A. A. Coleman. This was a bill filed by appellant against appellee and the substantial facts alleged therein are that the complainant was indebted to the respondents in the sum of $22,000 payable in three years; and to secure the payment of said indebtedness and the interest thereon complainant executed to respondents a mortgage on said real estate in the city of Birmingham; that the interest on the loan was paid for the first three years, and after that it…

Heard before Hon. Chas. A. Senn. This is a bill filed by Lawson as administrator against Turner and the Turner Coal Company to foreclose a mortgage on certain lands given for the purchase price of said lands. The respondents by way of answer and cross bill sought to set off ■ certain damages growing out of a breach of warranty contained in a deed made by complainants intestate to Turner of the right to cut timber on these lands for mining puropses.

Heard before Hon. Henry B. Foster. Bill by William F. Fitts against Lucy Craddoclc and others for sale of a certain lot named therein for partition. Berry and Craddock owned, each, an undivided half interest in a certain lot in Tuscaloosa. Berry conveyed his interest to William F. Fitts. Craddock died leaving a will by which he left to his widow, Lucy Craddock, a life estate in this lot, with a remainder in his children Fitts acquired the life estate of the widow.

Heard before Hon. A. D. Sayre. Bill by George W. Taylor and others against Julius A. Weiss, as administrator. Prom a decree in favor of complainants, defendant appeals. This was a; bill to open an alleyway between lots in a cemetery and to remove obstructions therein, and for injunction against maintaining obstructions therein.

Heard before Hon. Thomas A. Smith. Bill by appellant against appellee for mandatory injunction to require appellee to replace certain drains and a stairway alleged to have been removed from the common property, and to enjoin further molestation. From a decree sustaining demurrer to the bill, this appeal is taken. The facts sufficiently appear in the opinion. The second ground of demurrer, which was sustained by the court, went only to a part of the bill.

Heard before Hon. A. D. Sayre. Bill by appellee against appellant to restrain tlie erection of a nuisance.’ The bill alleged in substance: 1. Complainant was a resident citizen, property owner, and lax payer in the city of Montgomery. 2. The defendant bank was organized under the laws of the United States, and located in said city. 3.

Heard before Hon. Richard B. Kelly. Bill by appellant against appellee for cancellation and recission of a contract and to enjoin a suit at law on said contract. From a decree of the chancellor modifying the register’s report, the complainant prosecutes this appeal. The facts are sufficiently stated in the opinion. The equities of the case have been settled by a former judgment of this court. Andrews v. Frierson, et al., 134 Ala. 626.

Heard before Hon. A. D. Sayre. This was a bill filed by tlie appellant and sought to declare the act of the Legislature of Alabama approved Feb. 25, 1903, unconstitutional and void and an ordinance passed by ‘the City Council of Montgomery under the authority of said act to authorize the issuance by the City Council of Montgomery of $50,000 of bonds for the construction, or purchase of public school houses or buildings null and void and to restrain the City Council from the…

A. B. Baxter & Company, on January the 30th, 1904, had on deposit in the Shapard Bank of Opelika, $2,755.-29, no part of which has ever been withdrawn from the bank; and Baxter & Company was indebted 'to A. B. Yarbrough, the complainant, in the sum of $2,500.00.

Tlie facts in this case are sufficiently stated in the opinion. cited: — St-cote, eos rel. v. Pitts, 139 Ala. 152; Medlm v. Taylo-r, 101 Ala. 239; Code of Alabama, section 2637. The respondent is entirely without interest in the result of the prosecution.

Heard before the Hon! A. H. Owens. This was an application for a writ of mandamus, filed by the appellant, J. C. Brown, against the appellee, J. M. Sanders, as county superintendent of education, and sought to have him ordered to pay to the petitioner a salary as teacher of the public school at Baltic, a school district of said county, according to a contract entered into' by him as such.

<p> Petition for Mwnclamius. </p> <p>1. Statutes; Stock Law. — That portion of the general stock law act, approved September 29, 1903, (General Acts 1903, p. 431), providing for an election to repeal existing stock law or stock laws, upon petition by a majority of the land owners of the county, precinct or subdivision, has reference to laws then existing, and where at that time there was a stock law existing for an entire precinct, no election was authorized for a repeal thereof as to a part or subdivision of such precinct.</p>

<p>Appeal from the City Court of Anniston.</p> <p>Heard before the 1-Ion. Thomas W. Coleman, Jr.</p> <p>This was a petition for mandamus, filed by the appellant, E. F. Crook, judge of probate of Calhoun county, and sought to compel the court of county commissioners of said county of Calhoun, to purchase' postage stamps for the use of the judge of probate in his official correspondence as such. The prayer of the petition was denied, and petitioner appealed.</p> <p>cited: — Code, Sec. 3384; 26 A. & E. Enc. Law (2d eel.). 601, 602, 646-7; Thompson v. State, 20 Ala. 62; Facers v. Class, 22 Ala. 624; Trumbull v. Hutchings, 11 Ohio 371; Dawning -o. Hinds Ca., 36 So. Rep. 73.</p> <p>cited:— Pike Co. V: G-oldtlmaite, 35 Ala. 74.</p> <p>Appeal from judgment and order of the judge of the city court of Anniston denying petition for mandamus.</p>

Original petition in Supreme Court. The petition in this case was filed originally in the Supreme Court by the State of Alabama on the relation of the Attorney-General, asking for tbe issuance of a mandamus directed to the Hon. D. W. Speaks, Judge of the Eighth Judicial Circuit of Alabama. The purpose of tbe mandamus and tbe facts of the case are set forth at length in tbe opinion.

Heard before the 1-Ion. W. S. Anderson. This was an action of ejectment brought by the appellee, Sliuah S. Mann, against the appellant, George IT. Hoyle. All facts and the actions of the lower court are sufficiently set out in the opinion. There was verdict and judgment for the plaintiff, from which the defendant appeals.

Heard before Hon. Henry B. Poster. This was a common law action of ejectment, brought by the appellee, the Alabama State Land Company, against the appellant, Joel J. Lawrence, and sought to recover about four hundred acres of land. The defendant disclaimed possession as to forty acres thereof, and plead not guilty as to the balance. Upon the trial, the plaintiff proved the legal title to be in it.

Heai'd before Hon. C. W. Ferguson. This cause was tried by the court without the intervention of a jury, and judgment rendered for the defendant. The court refused to permit a deed to be offered in evidence because the description was too uncertain to identify the land and refused to permit the introduction of evidence to make certain the description of the lands sought to be conveyed by the deed.

Heard before Hon. A. H. Alston. The facts sufficiently appear from the opinion.

Heard before Hon. A. A. Coleman. This was an action of forcible entry and detainer, commenced in the justice court and removed on application of the defendant to the circuit court under §§ 2147, 2148 oí the Code, and there tried. The issue of fact was decided by the jury and judgment rendered thereon Nov. 13, 1903. The bill of exceptions was presented to the trial judge on Jan. 11, 1904, with the request that he sign it at once.

Heard before the Hon. J. A. Bilp.ro. This was an action of forcible entry and detainer, brought by the appellee, W. M. Story, against ¡the appellant, George Sprouse. The case originally was brought before a justice of the peace, who gave judgment in favor of the plaintiff. The defendant appealed to the circuit court, which also gave judgment for the plaintiff. From the latter judgment, this appeal is taken.

Heard before the Hou. J. C. Richardson. 'The suit in this case Aims commenced before a justice of the peace by Phillips & Buttorff M’f’g. Co., to recover of Wild Brothers the price of certain stoves sold by plaintiff to defendant. A judgment Avas rendered in favor of defendant, and plaintiff appealed to the circuit court of Conecuh county. Upon the trial in the circuit court, the plaintiff filed a complaint on a verified account for merchandise sold to defendant.

Heard before the Hon. John C. Anderson. Action by James H. Heyl against the Aetna Insurance Company on contract of fire insurance. The facts may be briefly stated as follows: E. E. Morrow, the owner of a certain building in Marengo county, Alabama, applied to, and obtained from the Aetna Insurance Company a policy of fire insurance on the building so owned by him. Under the provisions of the policy, as originally written, loss ivas made payable to the insured.

Heard before the 1-Ion. James A. Bilbro. This action was brought by the appellee, Sam. Henry against the defendant, W. D. Debter, and was an action, of assumpsit, in which the plaintiff sought to recover an amount alleged to be due from the defendant to him for balance due upon an account.

Heard lief ore tlie Hon. Charles A. Senn. This suit was instituted to recover $2,500.00 of advance money paid by Adler & Company, through their agent, on a contract entered into in the name of said agent with tlie appellant in this cause, for the purchase from it of certain lands donated to it by Congress.

<p> Assumpsit. </p> <p>1 Contracts. — Where the plaintiff shows a valid contract and compliance on his part with the terms thereof, he is entitled to recover in a suit based upon the contract.</p> <p>2 Evidence. — It is improper and error, to allow a witness to testify as to what he said to a third party in reference to matters in controversy.</p> <p>3 Same. — In an action on a contract for the delivery by plaintiff to the defendant of certain logs, evidence that a third person raised certain logs which had sunk in the water, and sold them to the defendant, or evidence corroborative of such fact, is entirely irrelevant to the issues involved, and should be excluded.</p>

<p>Appeal from Montgomery Circuit Court.</p> <p>Heard before the Hon. J. C. Richardson.</p> <p>This was a suit by J. C. Haas & Company against the Citizens Bank of Dyersburg, a Tennessee corporation, instituted by an attachment issued by and returnable to W. O. Fuller, a justice of the peace for Montgomery county. A judgment was rendered by the justice in favor of plaintiff, whereupon the defendant appealed to the circuit court of Montgomery. In the. circuit court the demurrers interposed by defendant to plaintiff’s complaint were sustained, and, plaintiff refusing to plead over, judgment ivas rendered for defendant, and plaintiff appealed. The complainant filed in the circuit court as finally amended, and the demurrers thereto are fully set out, and are as follows:</p> <p>“Now come the plaintiff's, and by leave of the court first had and obtained, file as an amendment to, and in lieu of, the complaint heretofore filed in said cause, counts 1, 2 and 3, as follows, to-wit:”</p> <p>1. “The plaintiffs claim of the defendant the sum of fifty dollars damages for this: the plaintiffs, who were merchants then engaged in business at Montgomery, Alabama, ordered on, to-wit, May 17th, 1901, from one Henry A. Klyce, then' residing and doing business at Dyersburg, Tennessee, two carloads of sacked meal, each car to contain, to-wit, three hundred sacks, to weigh, to-wit, ninety-two pounds each, and at and for the price of, to-wit, One and 7-100 dollars per sack; and, to-wit, three hundred sacks to weigh, to-wit, -forty-four pounds each, at and for the price of, to-wit, fifty-three cents per sack, all to- be by him immediately shipped to- the plaintiffs at Montgomery, Alabama. That the said Klyce did, on, to-wit, the 18th day of May, 1901, deliver to a railroad company, for transportation to Montgomery, Alabama, for the plaintiffs, to be delivered upon the order of the said Klyce, a car containing meal, and then and there received from the said railroad company a bill of lading therefor to himself, and purporting to- show that said car contained 500 sacks of meal; that the said Klyce then and there made out an account in favor of himself against, the plaintiffs for, to-wit, three hundred sacks of meal, containing forty-four pounds each at fifty-three cents per sack, and two hundred sacks each containing ninety-two pounds of meal,' at one and 7-100 dollars per sack, and aggregating, to-wit, three hundred and seventy-three dollars, and attached the said account and bill of lading to a draft for the sum of, to-wit, |373.00, drawn by said Klyce on the plaintiffs, payable to the defendant, the Citizens Bank, and then and there sold and delivered said draft, bill of lading and account to the defendant.”</p> <p>“That the said Klyce did, on, to-wit, the 21st day of May, 1901, deliver to the said railroad company for transportation to Montgomery, Alabama, for the plaintiffs, to be delivered upon the order of the said Klyce-, a car containing meal, and then and there received from the said company a bill of lading therefor to himself, and purporting to show that said car contained, to-wit, 600 sacks of meal, and then and there made out an account in his favor against the plaintiffs for, to-wit, three hundred sacks of meal, weighing ninety-two pounds each, for the price of one and 7-100 dollars per sack, and three hundred sacks weighing forty-four pounds each, at fifty-three cents per sack, and aggregating to-wit, four hundred and eighty dollars, and attached the said account and the said bill of lading to a draft drawn by the said Klyce on the plaintiffs, in favor of the said Citizens Bank for, to-wit, four hundred and -eighty dollars, and sold and delivered said draft, bill of lading and account to- the defendant.”</p> <p>“That the said drafts and accounts and bills of lading were by the defendant, forwarded to a bank at Montgomery, Alabama, for collection from plaintiffs, and the plaintiffs were compelled to pay, and did pay the amount of said respective drafts, and accounts to the said bank at Montgomery, Alabama, before the plaintiffs could and did obtain possession of the said meal, and before they had an opportunity of inspecting and examining the said meal.”</p> <p>“That upon the payment of the said drafts and accounts, plaintiffs received the same together with the said bills of lading from the said bank, and immediately thereafter obtained possession of the meal in said cars, whereupon, the plaintiffs then, for the first time, learned that in one of the cars, the second one shipped as aforesaid, there were seven of said forty-four pound sacks less than sold and billed as aforesaid, and in the other of said ears, there were eleven of said ninety-two pound sacks less than sold and billed as aforesaid, and that to-wit, seven other of the fox*ty-four pound sacks therein were torn, and the meal therefrom spilled upon the floor cf said car, and thereby damaged and rendered valueless to the plaintiffs, and that, to-wit, twenty-nine sacks of said meal were torn so that plaintiff's were obliged, at their own expense, to resack the same before removing it from the car, at great cost and expense, to-wit, twenty-five dollars. All to the damage of the plaintiffs in the sum aforesaid; wherefore they sue.”</p> <p>. 2. “The plaintiffs claim of the defendant the sum of twenty-five dollars damages for this: that Henry A. Klyce, who was then engaged in business at Dyersburg, Tennessee, did on, to-wit, the 18th day of June, 1901, notify the plaintiffs bv letter that he, the said Klyce, had consigned to himself at Montgomery, Alabama, a car of sacked bran, containing three hundred sacks, each sacíe weighing one hundred pounds, and that he had drawn a draft- on plaintiffs with the bill of lading attached for said bran, at the price of seventy-five cents per hundred pounds delivered, and requested plaintiffs to sell said bran to the best advantage. That the said Klyce did, on to-wit, said 18th day óf June, 1901, deliver to a railroad company for transportation to Montgomery, Alabama, to be delivered on the order of said Klyce, a car containing bran, and then and there received -from said railroad company a bill of lading therefor to himself, and purporting to show that said car contained to-wit, three hundred sacks of bran; that the said Klyce then and there made out an account in his favor against the plaintiffs for, to-wit, three hundred sacks of bran containing one hundred pounds each, at seventy-five cents per hundred pounds, and aggregating to-wit, two hundred and twenty-five, dollars, and sent the same to the plaintiffs. That he then and there attached the said bill of lading to a draft drawn by him, the said Klyce on the plaintiffs, payable to the Citizens Bank, the defendant, and then and there sold and delivered said draft and bill of lading to the defendant; that the said draft and bill of lading were by said defendant forward-eel to a bank at Montgomery, Alabama, for collection from plaintiffs, and the plaintiffs were compelled to pay, and did pay, the. amount of such draft to the said bank at Montgomery, Alabama, before the plaintiffs could obtain possession of the said bran, and before they had an opportunity of inspecting and examining the same.”</p> <p>“That upon the payment of said draft, the plaintiffs received the same, together with said bill of lading, from the said bank, and immediately thereafter obtained possession of said bran in said car, whereupon the plaintiffs, then for the first time learned that the said bran weighed, one thousand pounds less than the amount; billed by the said Klyce, and paid for by plaintiffs as aforesaid; that the plaintiffs sold the bran to the best’ advantage, and realized therefrom the sum of to-wit, iwo hundred and seventeen and 50-100 dollars; that the plaintiffs’ commission for selling said bran, amounted to the sum of three dollars; all to the damage of the ¡daintiffs, in the sum aforesaid, wliereform they sue.”</p> <p>3. “The plaintiffs claim of the defendant the further sum of one hundred dollars for money had and received by the defendant to the use of the plaintiffs, during, to-wit, the months of May and June, 1901.”</p> <p>The demurrers to- the last amended complaint, as above set out are as follows:</p> <p>“Comes the defendant and says the first count of the amended complaint- is insufficient in law, and it demurs thereto as follows; 1. It is not alleged that Klyce delivered to said railroad company the quantity of meal which plaintiffs bought of said Klyce. 2. It is not alleged that the said bill of lading was for the shipment of the quantity of meal alleged to have been bought by plaintiffs from said Klyce. 3. It is not alleged in said count that the said Klyce delivered to a railroad, or shipped to plaintiffs, the meal bought by the plaintiffs of said Klyce. 4. It is not alleged that the hill of lading-mentioned was for the shipment of the meal purchased by plaintiffs from said Klyce. 5. It does not appear what it was which the said Klyce sold to the defendant, whether the meal, bill of lading, the account, or the draft to which the said bill of lading and draft were attached. 6, It does not appear that the said draft was in the sum of the account or for the payment of the meal purchased by the plaintiffs of the said Klyce. 7. It is not alleged that the defendants had any notice of any defense to said draft by the plaintiffs at the time defendant pur-, chased the said draft. 8. It is shown that the defendant purchased the said draft of the said Klyce without notice of any fraud practiced by the said Klyce upon the plaintiffs. 9. It does not appear from the said count that tire defendant ever sold to the plaintiffs any meal. 10. It does not appear that the defendant ever represented to plaintiffs that the said cars contained the amount of meal purchased of the said Klyce or stated in said accounts, and it- does not appear that the. defendants ever warranted to plaintiffs that the said cars contained the amount of meal sold by said Klyce to- plaintiffs, or mentioned in said counts. 11. It appears that the defendants purchased the said draft for value before maturity, and without notice of any rights of plaintiffs, and it also appears that the said draft was commercial paper. 12. It does not appear that the defendant had any knowledge at and before the payment of said draft of any deficiency in, or damage to the meal purchased by plaintiffs from said Klyce.. 13. It does not appear that the plaintiffs purchased of the defendant, or con traded to purchase of the defendant, any meal. 14. It is shown that all contracts of the plaintiff in reference to the purchase and shipment of said meal were with one Klyce and that the defendant was not a party to either of said contracts. 15. It is not alleged that the said cars did not, when shipped, contain the amount of meal purchased, and it is not alleged that said meal was not in good order when shipped. 16. It is not alleged that when said draft was paid, the said cars did not contain in good order the amount of meal purchased of said Klyce. 17. It does not appear from said count as to. which of said two shipments complaint is made, nor as to which shipment there was a shortage, nor as to which shipment there was damaged goods or torn sacks. 18. It is shown there were two shipments, and it is plain that there was a shortage, and that there was some damaged goods as to one of said shipments, but it does not appear as to which, of said shipments is referred to. 19. That the said count contains two distinct and separate causes of action for two separate and distinct wrongs or breaches of contract.”</p> <p>“The defendant sa}rs that the 2nd count of said complaint is insufficient in law, and it demurs to. said count as follows, viz: 1. Each and every ground of demurrer to the first count hereof. 2. It does not appear that the defendant was a party to the contract alleged with Klyce in reference to said bran. 3. It does not appear that the defendant ever represented to plaintiffs that their contract with Klyce had been fully performed or o Lherwise bought any bran either from the said Klyce or the defendant.”</p> <p>“The defendant demurs to the complaint as a whole as follows, viz: 1. Because said complaint joins two counts in case with one in assumpsit. 2. Because -said complaint joints counts in tort with a count in assumpsit.”</p> <p>“Additional demurrers to counts 1 and 2 of complaint as amended November 20, 1902: Comes the defendant and for additional grounds of demurrer to- count No. 1 as amended Nov. 20th, 1902, as follows, viz: 1. It appears from the said count that the amount of meal purchased May 17, 1901, was 600 sacks, and that the amount mentioned in the bill of lading was 500 sacks, and it does not appear whether the shortage complained of was as to the amount of meal shipped, or as. to the amount of meal purchased. 2. It appears from the said count that the amount of meal purchased May 17, 1901, was 600 sacks, and that the amount of meal mentioned in the bill of lading was 500 sacks, and it does not appear whether the meal damaged,’or of which the sacks were torn, were a part of the 600 purchased or the 500 • sacks sldnped.”</p> <p>The proposition presented is, whether appellee in purchasing the. respective drafts and accounts, with bills of lading attached,, did not therebv become a party to, or assignee' of, the contract made between Klyce and the appellants, and was not. bound to carry out with appellants the contract as originally made. — Lancia v. Lotin, 19 Tex. Oiv. App. 246; Finch v. Gregg, 126 N. O. 176; Russell v. Smith Grain Go., 22 So. Rep. 287.</p> <p>The transfer of a bill of lading operates as a delivery of the property, and the assignee becomes invested with all the rights of a purchaser. — Commercial Bank of Selma v. Kurt, 99 Ala. 130; Ala. State Batik, v. Barnes, 82 Ala. 607; Weil Bros. v. Poncler, 127 Ala. 300; Am. Pig Iron Co. v. German, Exr., 126 Ala. 242.</p> <p>The fact that the transferree of a bill of lading is a bank, does not alter the principles involved. — Eufemia Grocery Co. v. Missouri Nat. Batik, 118 Ala. 401.</p> <p>Young v. Lehman, Durr & Go., 63 Ala. 519; First Nat. Batik of Detroit v. Burkhatn, 32 Midi. 328. In the case last cited the drawee had paid a bill of exchange with the bill of lading attached. The bill of lading was fictitious and the drawee sued the payee. The court denied the right to recover, saying: “The payee in every case where a bill is discounted relies and is compelled to rely upon such security as he has from the drawers, until the bill is sent forward and paid or accepted. When that takes place, he is furnished with what, to him, is conclusive evidence that the drawer was authorized to draw the bill.”- — See also' Kelly v. Lynch, 22 Cal. .661; Robinson v. Reynolds, 2 Adolph & Éllis, U. S. 196; Hoffman •& Co. v. Bank of Molwemkee, 12 Wall. (TJ. S.) 181; Goets v. Bank of Kansas City, 119 TJ. S. 551; Woods v. Thieclman, 1 Hutlst. O., 478; Letiher v. Simpson, 40 L. J. Oh. N. S. 177; German Amr. Sciv. Bank v. Craig, 96 N. W. 1023.</p>

<p> Action on Injunction Bon'd. </p> <p>1. Injunctions; Action on Bond. — Under an injunction bond conditioned to pay or cause to be paid all damages and costs which any person may sustain by the suing out of the injunction if the same is dissolved, any person may sue thereon for the recovery of any damage resulting to him from the direct effects of the injunction.</p> <p>2. Same; Same; Pleading. — In an action upon an injunction bond by a person not named as an obligee therein, such party must set out in his complaint such a state of facts as to show that he was damaged by reason of the issuance of the injunction. An averment of the breach of the condition of the bond, coupled with the fact that the injunction was dissolved, without more, would not entitled such party to recover nominal damages even.</p> <p>3. Same; Same. — Where the owner of property has contracted with a party to erect a building thereon, and such contractor assigns to a third party all his rights and duties under the contract, and afterwards, a bill of injunction is filed against the owner and contractor to prevent the erection of the building, and the assignee of the contract is not made a party to the bill, he is not bound by an injunction issued in the cause, and, if he ceases work on the building, it is his voluntary act and damages occasioned thereby are not the direct effect of the injunction.</p>

Heard before the Hon. W. W. Haralson. This action was brought by Cherokee county against the appellant, and sought to recover taxes alleged to be due the said county, under a special levy made for the ■ purpose, of meeting the expense of repairs on public roads of !.he county, which the court of county commissioners contemplated making. From a judgment for the plaintiff, the defendant appealed. 8 Cyc. 737; 78 Ala.. 419; Cooley on Taxation (3d ed.), 188, 214.

<p> Detinue. </p> <p>1. Detinue Under Mortgage or Conditional Sale; Defenses. — The provisions of the Code, section 1478, providing that in actions of detinue brought by a mortgagee or by the vendor in a contract of conditional sale, the defendant may plead any matter of defense that he might have pleaded to an action on the debt, applies to all actions of detinue, and the defendant has the right to introduce evidence in reference to the consideration of the debt, in an action of detinue under a mortgage.</p> <p>2. Same; Same. — In an action of detinue under a mortgage given plaintiff for the purchase money of the property described therein, the defendant may, by special plea, set up damages, growing out of a breach of a warranty of the goods sold, in defense of the action, but he cannot recover judgment against the plaintiff for any excess or damages over the debt secured by the mortgage.</p> <p>3. Mortgage; Costs of Foreclosure. — On the foreclosure of a mortgage of personal property, securing in addition to the debt, the “Holding, recovering and selling” the property, as well as for attorney’s fees, the mortgagor is entitled only to credit for the net proceeds of the sale after deducting such costs and expenss.</p> <p>4. Detinue; Defenses. — In an action of detinue brought by a mortgagee, the plaintiff is entitled to charge only the debt described in the mortgage, and cannot charge another debt not due, even though a part of the same consideration as the debt secured by’ the mortgage.</p>

Heard before Hou. H. A. Pearce. This was an action óf'detinue for a piano' based upon an instrument in writing retaining title to the piano in the vendor''until the purchase price was paid.

Heard before the Hon. B. C. Jones. This was an action brought by appellant, C. H. Spencer, against the Bessemer Water Works Company for damages for an alleged breach of duty by 'the defendant in failing to supply defendant with water for nse in carrying on his business as a florist. The complaint as originally filed contained two counts. The substance of the first count is sufficiently stated in the opinion. The second count was in words and figures as follows: “2.

Heard before Hon. E. B. Almon. The defendant interposed a number of grounds of demurrer which practically raised the same question, namely, that the complaint failed to show that plaintiff delivered, or offered to deliver, the articles described in the complaint. The demurrers were overruled, and the plea of the general issue was filed. There was a judgment for plaintiff and defendant appeals. The facts sufficiently appear in the opinion.

Heard before the Hon. John C. Anderson. . This was a statutory trial of the right of property, which Avas instituted upon the levy of an execution in favor of the appellee, George H. McKee, against one Richard Montgomery, upon certain property, whereupon one M. W. Bennett introduced a claim to- the property so levied upon.

Appealed from Pike Circuit Court. Heard before Hon. H. A. Pearce. This was an action by the Troy Grocery Co., against the appellant National Bank to recover $45.00. It was begun by attachment in a justice court and levied upon a certain lot of oats. The defendant appeared by counsel and filed several pleas in answer to the complaint filed in thq justice court.

Heard before the Hon. John Peli-iam. This action ivas brought by the appellee, James A. Hughes, against the appellant, and sought to recover damages resulting from acts alleged to have been done by the defendant on its own premises. The complaint contained several counts, to some of Avhich demurrers Avere interposed, on grounds, among others, that the counts, respectively, joined claims for separate and distinct damages.

<p> Action to Recover Damages for Injuries to- a Mule. </p> <p>1. Street Railroads; Wantonness, vel non, Question for Jury. — In an action against a street railroad for injuries to a mule, caused by a collision with, a car, whether the railroad was guilty of a wanton or wilful wrong held, under the evidence, a question for the jury.</p> <p>2, Same; Pleading; Charge to Jury. — In an action against a street railroad for injuring a mule, a charge that the motorman had the right to assyme that travelers would look and listen for approaching cars before attempting to cross the track, and the jury might consider that fact in determining whether or not the motorman was guilty of a wilful wrong, singled out and gave undue emphasis to a particular fact, and was properly refused.</p> <p>3. Same. — In an action against a street railroad for injuring a mule, a charge that defendant was not guilty of a willful or wanton wrong' if the car was being run ot the rate of five or wanton wrong if the car was being run at the rate of five question for the jury, aid not the court, to decide.</p> <p>4. Same. — A charge calling on the trial court to declare that there is no evidence of a particular fact is properly refused.</p> <p>5. Same; Negligence; What Necessary to Constitute Wilful or Wanton Negligence. — In order that one may be held guilty of wilful or wanton conduct, it must be shown that he was conscious of his conduct, and conscious from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result.</p>

Heard before tbe Hon. William S. Andeeson. This suit was brought by complainant J. M. Levy against- the Southern Bailway Company to recover damages for failure to deliver in good order and condition certain goods which were assigned to the plaintiff, and which were shipped over defendant’s railway lines; the defendant being the delivering or discharging carrier. The facts in reference to the only question decided upon the present appeal are sufficiently shown in the opinion.

Heard before Hon. T. J. Burton. This was an action brought by the appellee, W. B. Merrill, against the Western Union Telegraph Company, and sought to recover damages from the defendant for failure to promptly transmit and deliver a telegraph message, received by it for transmission to the plaintiff at Edwardsville, Alabama.

<p> Appeal from Order Qrcmtmg New Trial. </p> <p>1. New Trial; Appeal. — On appeal from a judgment granting a motion to set aside a verdict and giving a new trial, nothing will be considered except the action of the court with respect to the motion.</p> <p>2 Same; Judgment Entry. — A formal judgment is necessary to support an appeal, and where on a motion to set aside a verdict and grant a new trial, the only action of the court shown is an entry signed by the presiding pudge, entered on the motion docket, that the motion is granted, an appeal therefrom will be dismissed, as such entry is nothing more than a memorandum, or docket entry.</p> <p>3. Same; Judgment. — Where a judgment - rendered in favor of a party is formal and sufficient, an adjudication by the court is necessary to set it aside; otherwise the judgment remains intact.</p>

Clair Probate Court. Heard before Hon. W. S. Foreman. C. C. Montgomery, candidate for tax collector of St. Clair County files this contest against William E. Henry, who- was declared duly elected tax collector of St. Clair county.

Heard, before Hon. A. A. Evans. Appellee filed in the probate court of Bullock county an application to condemn certain lots in the town of Union Springs belonging to appellant. There was judgment of condemnation from which, appellant appealed to the circuit court of Bullock county.

<p> Statutory Action of Ejectment. </p> <p>1. Trusts and Trustees; Appointment of Succeeding Trustees. — Under a deed executed to named persons as trustees of the “Methodist Church at Athens” providing in the habendum that the property should be held to such trustees “and to their successors in office chosen and appointed according to the statute of the state of Alabama,” where the register in chancery duly appoints certain persons as successors to the original trustees, as trustees of the “Methodist Episcopal Church, South,” the persons so appointed succeed to- the legal title of the property described in the deed, and the variance, if any, applies solely to the cestui gui trust.</p> <p>2. Evidence; Judicial Knowledge. — Courts will take judicial knowledge of matters of general history, and under that rule, will take judicial knowledge of the division of the Methodist Episcopal Church into the Methodist Episcopal Church North and the Methodist Episcopal Church South, and of the territory over which jurisdiction was to be and has been exercised by the respective divisions, and of the articles of separation, with reference to a territorial division of the common property.</p> <p>3. Pleading and Practice; Non Suit with Bill of Exceptions.- — -Where on a trial, the court excludes certain evidence offered by the plaintiff, which was necessary to- a recovery, he may take a non-suit with bill of exceptions, although at the time, he had not made other necessary proof, which proof, he stated at the start, that he expected to make.</p> <p>4. Ejectment; Title of Plaintiff. — In an action of ejectment, the plaintiff must recover on the strength of his own title, and not on the weakness of the title of the defendant.</p>

Heard before the Hon. Wm. W. Wilkersón. The appellant here, nncler the contract set forth in the opinion, sued the Alabama National Bank for the value of three carloads of oranges alleged to have been shipped by McLane and Sims to Williams & Marks. The original suit against the bank was brought by James Weatherly, Esq., an attorney of the Birmingham Bar, in the city court of Birmingham, and the case resulted in a, judgment for the defendant, the Alabama National Bank.

<p>Appeal from Shelby Circuit Court.</p> <p>Heard before Hon. Joi-in Pelham.</p> <p>This was an action for the recovery of the ten dollars a tree penalty prescribed by § 4137 of the Code. The facte necessary to an understanding of the opinion, sufficiently appear therein. The court, at the request of the defendant, gave the affirmative charge. There was verdict and judgment for defendant, and plaintiff appeals.</p> <p>This is a personal action in debt. — Turner Goal Go. v. Glover, 101 Ala. 289. The act of Feb. 1893, §§ 1541, 1546, inclusive, have therefore, no application to this case. This statute is applicable only to actions of ejectment, or statutory real action in the nature of ejectment.- — Salt v. Adams, 121 Ala. 664; Sccde v. Otts, 127 Ala. 582; Sleclge v. Singley, 139 Ala. 346; Bollings v. M. & M.-Ry. Go., 128 Ala. 554. Having adverse possession of the lands for more than ten years before the defendant company cut the trees, plaintiff "was armed with all the power of offense and defense which an unbroken chain of title confers. — 11 Ala. 1028; Barclay v. Smith, 66 Ala. 232; Mclnerny v. Irwm, 90 Ala. 276. A statutory remedy or proceeding is confined to the very case provided for and extends to no other. It cannot be enlarged by construction. — 2 Lewis’ Sutherland Statutory Construction, Sec. 565. Statutes authorizing new methods of proof must be followed with strictness. — Ib. Sec. 567.</p> <p>The evidence clearly establishes that plaintiffs possession did not ripen into a title before Feb. 11, 1893. It also clearly shows that his possession ivas without claim or color of title, and that, he had never filed any notice of his claim to the land in the office of the judge of probate. — Scales v. OttSj 127 Ala. 582; Bolling v. M. d M. By. Co128 Ala. 550. It thus becomes evident that the title to the land ivas a fact in issue, and the right created by the statute is limited and confined to the owner o-f the land, to- him who owns a legal title. — White, McLane & Morris v. Farriss, 124 Ala. 461.</p>

<p> Summary Proceedings against Attorney, to require him to yay over money collected by him as Attorney. </p> <p>1. Attorney and Client; Failure to Pay Over Money; Necessary Allegations. — In a summary proceeding under the Statute (§ 3891 of Code of 1896) against an attorney for judgment for money collected by him as an attorney, and not paid over, it is necessary to allege and prove a demand upon bim for the money and a refusal to pay it over.</p>

<p> Action on Stock Subscription. </p> <p>1. Corporations; Subscription to Stock; Requisites. — Any agreement by which a person shows an intention to become a stockholder is sufficient to bind both the subscriber and the corporation.</p> <p>2. Same; Action on Subscription; Validity. — The signing of a subscription paper is an implied promise to pay the subscription, which may be enforced by the corporation after formation, although the subscriber made no cash payment, and the proceedings after incorporation were without notice to him.</p> <p>3. Same; Declaration; Defenses. — It is no defense to an action to enforce payment on- stock subscription by a corporation, that the corporation had not fully complied with the statutes providing for its incorporation, and the declaration need not specially allege a compliance with every circumstance relating to its organization requisite as a precedent to investing it with the powers conferred by its charter.</p> <p>4. Same; Statutes. — The common law rule governing actions on stock subscriptions are of general and buiding effect unless the statute prescribes the particular .method of subscription, as a condition precedent to its validity, and this acts 1903, p. 310 does not do.</p>