Volume 145 — Alabama Reports

Heard before Hon. H. A. Pearce. The defendants, Rufus and Letch Barden, were indicted and tried lor ilie murder of one Wyrosdick by shooting him with a pistol. The evidence of the witness John Stuai t was that he and Wyrosdick same to River Palls from Red Level on a certain train, went from depot towards store of the Horseshoe Lumber Company, and turned and went to De Vane’s bar, where the killing occurred. He further stated that neither he nor Wyrosdick was drunk.

<p> Murder. </p> <p>1. Jury; Summoning; Drawing Special Venire for Trial. — The provisions of .§ 5004, Code 1896, are mandatory in the trial of a capital case, and a judgment entry which fails to show that the venire was drawn from the jury box by the judge, is fatally defective and will not support a conviction.</p>

Heard before Hon. B. M. Miller. Tlie defendant was indicted for the murder of one Waller, by shooting him with a gun. The facts upon which the opinion is rested sufficiently appear therein. The defendant was convicted and sentenced to death. The court erred in its several rulings as to the venire, and especially in refusing to permit the defendant to withdraw his plea of not guilty and interpose a plea of guilty.

Heard before the Horn B. M. Miller. The defendant was indicted and tried for killing Ovid Rollins. O. J. McCary, testifying for the state, said: “1 was with Ovid Rollins after he' ivas wounded. I went over to the place where he was shot and saw him. He looked at me and said, ‘John, I am killed.’ He told me he was going to die frequently after he was shot, and asked me to take care of his family.

Heard before Hon. D. W. S-pbake. The defendant was indicted and tried for killing one Beddingfield by shooting him with a gun. The evidence showed without conflict that the defendant shot and killed deceased. There was conflict in the evidence as to who brought on the difficulty that resulted in the killing, and as to'- whether or not the defendant acted in self-defense when he fired the fatal shot.

Heard before Hon. John T. Lackland. The defendant wan indicted and tried for murder of Peter Brown by shooting Irm with a gun or pistol. This indictment was found a.t the spring term, 1905, of the circuit court, and the minutes at that term failed to set out the original grand jury venire. Motion was made to quash the indictment on that ground. They offered in support of the motion the minutes of the court.

Heard before the Hon John T. Lackland. The defendant was indicted for killing Jeff Clover, tried and convicted of manslaughter in the first degree, and sentenced to the penitentiary for five years. The defense was that the killing was accidental. The defendant requested the following written charges which the court- refused. Charge 2.

Heard before Hon. John T: Lackland. The defendant was indicted and tried for the murder of one Packer by cutting him with a knife. On the trial witness Dinkins was permitted to testify, over the objection of defendant, that immediately after the difficulty deceased ran to where he was, fell, and was bleeding, and said that he had been cut.

Heard before Hon. John T. Lackland. Appeal from Marengo Circuit Court. This defendant, together with Albert Richardson and John Iloshins, was indicted for the murder of Frank L. Fosque.

<p>Appeal from Lowndes Circuit Court.</p> <p>Heard before Hon. J. C. Richardson.</p> <p>The defendant was indicted and tried for the rape of Salonia Calloway. During the trial and while Salonia Calloway was testifying, the defendant ashed her if she did not tell Ren Jones, the defendant’s father, that “you would not have told that tale on Charlie, but than women caught you and Charlie doing it, and you had to tell a. story to keep from getting a whipping.” When the defendant introduced Ren Jones as a witness, he asked the witness if Salonia Calloway had not told him the matter above set out: “Did you not have a conversation with Salonia Calloway (the prosecutrix in this case) in which she said to you she would not have told on Charlie if Caroline Taylor and Mary Rennett had not caught them?” The solicitor objected to the question on the ground that it was leading; that it was illegal, and that no proper predicate had been laid therefor; that witness could not be impeached without proper predicate, which had not been laid. The court sustained the objection to the question.</p> <p>Reing examined on her voir dire, May Galloway, a witness for the state, shown to be but nine years old, said: “I will be ten my next birthday. Cod made me. I have been to church and Sunday school. It is wrong to tell a lie. It is wrong to swear to a lie. I am not going to swear to a lie. I am going to tell the truth.” The solicitor then asked: “If you should swear to a lie, what would the judge do to you? A. He would put me in jail.” The defendant’s counsel asked to be permitted to question the witness, and, on being granted leave, asked: “If you were a bad girl, and should swear falsely where would you go? A. I reckon I would go to jail. Q. Could God put you in jail? A. I reckon he could if he wanted to.” Thereupon the court, over the objection of the defendant, permitted the said witness to testify.</p> <p>(No brief came to the reporter’s hands.)</p> <p>The witness Bertha Calloway was properly permitted to testify. Her examination on voir dire shows her to be competent. — JIcGnff v. State, 88 Ala. 147; Wade v. State, 50 Ala. 164.</p> <p>The venue and time not being laid in the question for a predicate», the court properly sustained the state’s objection to the questions propounded the prosecutrix seeking to impeach her. — Floyd v. State, 88 Ala. 16; Phoenix Ins Go. r. Moot/, 78 Ala. 284; 9 A. & E. Eney. Law, (1st ed.), 784, et set/.</p>

Heard before Hon. A. A. Evans. The indictment in this case was in the following language : The grand jury of said county charged that before the finding of this indictment that Beverly Jackson, alias Beverly Green, wilfully set fire to or burned a corn crib, the property of Emmet Lamar, against the peace and dignity of the State of Alabama.

Heard before. Hon. H. W. Speake. The defendant and another were indicted for robbery.

Heard before Hon. W. H. Thomas. The defendant was indicted and tried for an assault with intent to murder W. J. -Reynolds.

<p> Criminal Libel. </p> <p>1. Criminal Law; Malisciously Imptiting want of Chastity to Female; Indictment. — An indictment -which, charges that the defendant maliciously said of a certain female, in the presence of others, “She had a young one before she was married,” sufficiently alleges an imputation of a want of chastity to the female.</p> <p>2. Same; Evidence; Admisslbilitly. — It is competent for the defndant to show that he was merely repeating what others had said concerning such female, and that he so stated at the time of the use of the alleged slanderous words, to be considered by the jury in' fixing the grade of punishment.</p> <p>3. Same; Same; Elements of Offense. — The accusation must be false and malicious to constitute the offense of maliciously imputing a want of chastity to a female.</p> <p>4. Same; Malice; Proof. — Tt is not necessary to prove express malice for maliciously imputing a want of chastitly to a female. Malice may be inferred from the character of the accusation, and the absence of probable grounds for making it. *Rehearing denied April 80th, 1906.</p>

Heard before. Hon. fe. M. Miller. The defendant in this case, after the demurrers to the indictment- had been overruled, set up the statute of limitations of one year as a bar to the further prosecution of the suit. It appeared that an indictment was found against him for the same offense at the fall term, 1903, which on motion of the solicitor was quashed, whereupon the court made the following order: The State of Alabama v. Clinton Davis.

Heard before Hon. John T. Lackland. The indictment in this case charges that Herbert Moog within the limits of a district, in which the… Held: that notwithstanding the State law of Iowa, prohibited the sale of liquors including beer, still that a citizen of Illinois could lawfully ship such liquor into the State of Iowa, and there sell it-in the original package; that it was protected by inter-state commerce, and' exempt from police, power regulations of the State of Iowa,…

■ Appeal from Walker Law and Equity court. Heard before Hon. Peyton Nouvell. .The indictment charged gaming in a. public place. The facts are sufficiently set out in the opinion of the court..

Heard before Hon. H. J. Lancaster. This was a prosecution commenced by affidavit in the justice court returnable to the justice of the peace.

Heard before Hon. H. B. Foster. The appellee was arrested by the sheriff of Tuscaloosa county upon a warrant charging him with trespass after warning. He sued out a writ of habeas corpus returnable, to the judge of the Tuscaloosa county court returnable on the 27th day of October. On that day the case was continued until the 30th of October pending which continuance the .appellee was admitted to bail.

Aureal from Montgomery City Court. Heard before Hon. W. II. Thomas. The C. of Ca. Ry. Co., was indicted for obstructing the public road 1)3* leaving a car across it for six hours. The evidence showed without conflict that the car was left across the public road described in the indictment about the length of time described. The indictment and demurrers thereto' sufficiently appear in the opinion.

Heard, before Hon. W. L. Barks. J. D. Blue filed his bill as a citizen and tax payer of Coffee county seeking to restrain the treasurer of said county, IV. T. Everett, from paying to J. F. Banders, out of the guneral fund of the county, his salary a.s judge of the county court and M. d, Lee, his salary as solicitor of said court.

<p> Bill to Restrcdn Unlawful Expenditure of Piiblic Money. </p> <p>Statute; Compensation of Officers; Appropriations; Repeal — Section one, subdivision 36, general acts 1903, p. 50, by implication repeals section 7 of the act approved-. Feb. 27, 1901, (Acts 1900-1901, p. 1201) appropriating" to the director of the Department -of Archives and History, the sum of $700, in addition, to- his salary, for the maintenance of the- Department of Archives and History.</p>

Heard before Hon.' W. T. Simpson. This was a bill filed by Gibson, and others, trustees of a district in Marshall comity, and as tax payers and patrons of the school in such district, to enjoin the county superintendent of Marshall county from paying out the money of the State for Marshall county, for school purposes, to a teacher elected by the county hoard, and to require the county hoard of education to approve a contract made by the district trustees with a teacher of…

Heard before Hon. Thomas IL Bmith. This is the third appeal in this case. The first appeal is reported in 135 Ala. p. 156, and the second in 140 Ala. p. 555. These two repeals are referred to here for the settlement of the pleadings in the case and as showing till contention of the parties and the facts concerning the same.

Heard before lion. O. W. Ferguson. The bill was filed by appellant as a. citizen and taxpayer of the city of Birmingham, on behalf of himself and other tax-payers, against the mayor of B inning'll am, and the mayor and aldermen of the city, for a mandatory injunction requiring the said mayor to repay to' the city treasury the excess in salary collected by him from May tot, 1903, to Dec. 31 et, 1901.

Heard before Hon. TV. TV.. Whiteside. This was a hill filed hy Mitchell et als as citizens and tax payers of the city of Gadsden, against the city of Gadsden, its hoard of mayor and aldermen and the mayor and aldermen individually, to enjoin and restrain the issuance and sale of city bonds for the purpose of constructing water works hy the city.

Appeal, front Etowah 'Chancery Court. ■. ,■ Heard before Hon! W. W. Whtteside. R. A. Mitchell and associafes filed-their hill-for mandatory injunction to require the proper authorities of the city of Gqdsden t.o point o,at and .designate such streets in the said city of Gadsden as it was. desired that water mains and hydrants be laid in. .

Heard, before Hon. Charles W. Ferguson. This was a bill filed by McWilliams seeking to enjoin the city of Ensley from selling or attempting to sell certain lands belonging to complainant, which is alleged to lie within the corporate limits of the city as defined and extended by the act of the Legislature of 1903, but which act is alleged tó be unconstitutional and void. The facts and pleadings are sufficiently set forth in the opinion of the court.

Heard before Hon. A. H. Benneks. The bill in this case was filed by two persons, holders of ordinary benefit certificates, for themselves and on behalf of such other holders of like ordinary benefit certificates who would come in and make themselves parties.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. A. I). Sayrio.</p> <p>Bill by W. B. Folmar at Bichard Tillis, et al to compel them as principal debtors to discharge the debts for AA'hich Folmar is surety. The allegations of the bill and the facts in the case are sufficiently set forth in the opinion of the court.</p> <p>The contract right of the parties must he enforced by legal remedies, unless the inadequacy of such remedies is shoAvn. —Brown, Admr. r. Bnrnum, 99 Ala. 114. Jurisdiction of the chancery court cannot he invoked upon the theory of enforcing a lieu for the payment of the purchase money. — Porter v. Ullman, 105 Ala. 628; Reese v. Bradford, 13 Ala. 847; Mayer v. Clarice, 40 Ala. 270; Coffin v. McCullough, 30-Ala. 107; Hart v. Clarice, 54 Ála. 493; .Brown v. llurnum, supra; 1 Lindlay on Partnership, 336, 575.</p> <p>A decree for specific performance could not be enforced, the demand being contractual, appellants could not be in contempt for a refusal to perform. — Ex parte John Hardy, 68 Ala. 303. The promise of Tillis and Byrd was that they would pay the debts as they accrued, and their failure to do so gave complainant an immediate right of action, not only for the debts of the firm paid by him, but for those unpaid, and the measure of damages would be the entire amount of debts paid by him, and those remaining unpaid. — Hogan’s Executors v. Calvert, 21 Ala. 194; Peacey v. Peacey, 27 Ala. 683; Brown v. Burnum, supra; 2 Sutherland on Damages.</p> <p>The right to exonerate is a branch of the concurrent jurisdiction of courts of equity, and as such depends upon the inadequacy of the remedy at law. — 1 Pom. Eq. Juris. Sec. 140; Thomas v. St. Paul’s M. E. Church, 86 Ala. 138; Martin v. Ellerbe’s Admr., 70 Ala. 326; Hodgson v. Shaw, 3 Myle and Keene, 183; Spence Eq. Juris, p. 66, note A.</p> <p>The defendant cannot be deprived of his right of trial by jury by such proceedings as this. — Youngblood v. Youngblood, 54 Ala. 486; Brown v. Brown, 68 Ala. 114; Smith v. Cockrell, 66 Ala. 64; Moulton v. Reed, 54 Ala. 320; Kennon v. Wright, 70 Ala. 434.</p> <p>Each suit against Polmar by his creditors would be separate and distinct from the other suits and would in no wise depend upon the same facts and it is admitted ' that Polmar is primarily liable to the various creditors of the partnership and that he has no defense to their demands either at law or in equity. — Turner v. City of Mobile, 135 Ala. 73, and authorities cited.</p> <p>Walden was a necessary, party to the bill. — Perkins, et al. v. Buerfield, 77 Ala. 403; Elliott v. Sibley, 101 Ala. 344; 15 Am. & Eng. Ency. P. and P. pp. 613-614.</p> <p>The ratification by Walden is not shown by the allegations of the bill. — Eleioellen v. Crane, 58 Ala. 626; Lipscomb v. McClellan, 77 Ala. 151; Scholse v. Steiner, 100 Ala. 152. The transaction as alleged in the bill was void on account of the statute of . frauds. — Tillis v. Treadwell, 117 Ala. 445; Raub v. Smith, 61 Mich. 543; Heflin v. Milton, 69 Ala. 354.</p> <p>The bill contains equity. Wherever it appears that as between two persons a primary duty rests upon the one to pay the creditor to the exoneration of the other, then the person who is thus entitled to be exonerated and indemnified may proceed in equity to compel the payment, or if he has paid the debt, to compel' the principal debtor to reimburse him. As to the general doctrine, see the following authorities. — Brandt on Sureties & Guar’t. Yol. 1, § 223; Chamberlain v. Blue, 6 Blanch. (Ind.) 491; King v. Baldwin, 2 Johns. 554; Hays v. Ward, 4 Johns. Ghanc. 123; Wright v. Simpson, 6. Yeas. 734; Bishop v. Day, 13 Vt. 81; Gitlem v. Esselman, 5 Snead, 86; Marsh v. Pike, 1 Sanford, 210; Stevenson v. Tavernors, 9 Gratt. 398; Richards v. Osceola Bank, 79 La. 707; Meadow v. Meadow, 88 Ky. 217-221; Delaney v. Tipton, 3 Hayw. (Tenn.), 14; West v. Chastain, 12 Fla. 215; L. Thompson v. Taylor, Ex’tr., 72 N. Y. 32; Pom. Eq. Juris. § 1417.</p> <p>Or. he may file his bill to compel the creditor to sue the person ayIio, as to the surety or covenantee is the principal debtor, and to exhaust his remedies against him. But before he can compel the creditor to incur the risk and expense of suit, he must indemnify him.— Story’s Eq. Juris, § 327.</p> <p>It is believed to be a fact that in not one of the cases Avhere the bill Avas filed by the covenantee ■ against the indemnitor Avas indemnity required. Here, hoAvever, full indemnity Ayas offered in the bill. — Thompson v. Taylor, 72 N. Y. 32. Our Supreme Court is committed to the theory of the bill. — Thomas v. St. Paul, 86 Ala. 138.</p> <p>While a court of equity will not assume original jurisdiction to decree damages for breach of contract,' it will decree such damages Avhere it has obtained jurisdiction for other purposes, or where it is incidental, or the right to it is derived correlatively from some other right ascertained to exist in behalf of the complainant. —Hale v. Virginia Etc. Mining Co.</p> <p>“A. second rule is, if the remedy of specific performance is possible at the commencement of a suit by the vendee, and while, the action is pending the vendor renders this impracticable by conveying the subject matter to a bona fide purchaser for value, the court will not compel the plaintiff to bring a second action at law, but having acquired jurisdiction will do full justice by decreeing a recovery of damages.” Citing Morss v. Elmendorf, 11 Paige, 277; Woodcock, v. Bennett, 1. Cow. 711; Milkman v. Ordway, 106 Mass, 232, 253. See also, Eastman v. Read, 101 Ala. 320.</p> <p>The separate pleas of Tillis and Byrd were bad in matter of form. — Daniels Chancery Pleading and Practice (4th Ed.), p. 603; Whitebread v.. Brockhurst, 1 Bro. O. C. 404-418; Saltus v. 'Tobias, 7 John. Oh. 214.</p> <p>It is not deified in the plea but that the contract was signed by Tillis and Byrd, and they are the parties who are sought to be charged therewith. That is sufficient to meet the statute of frauds. — Section 2151 of the Code, 1896; Oliver v. Insurance Go., 82 Ala. 417; Sagerfelt v. McKee, 10Ó Ala. 430. If it were necessary that Walden should sign the contract, then the defect appeared upon the face of the bill and should have been taken by demurrer. — Cocine v. Graham, 2 Paige 178. And the defense of the statute of frauds can be raised by demurrer. — Adams v. Phillips, 70 Ala. 373; Bailey v. Irwin, 72 Ala. 505.</p> <p>Tillis and Byrd will not be allowed to retain the fruits of the contract as to its larger part and yet be permitted to disaffirm it, because they did not receive a portion of that which was contracted to be sold them.— Chambers v. Ala. Iron Co., 67 Ala. 353; Nelson v. Shelby, 98 Aia. 524; Brewer v. Logan, 19 Ala. 481; Randolph v. Tatcm, 36 Conn. 48; Bain v. McDonald, 111 Ala. 272; 3 Pom. Eq. Ju. p. 310. The plea of the statute of frauds is not applicable. The lands 'when partnership assets are treated as personal property. — Causier v. Wharton, 62 Ala. 358; Powers v. Robinson, 90 Ala. 225; Rovelsky v. Broton, 92 Ala. 522; Marsh v. Darns, 33 Kan. 326; Modderwell v. Mullison, 21 Pa. St. 257; Black v. Black, 15 Ga. 445; Brown on Statute of Frauds, 5th Ed. Sec. 259.</p>

Heard before Hon. W. W. Whiteside. This was an action by Baldwin, et als., as sureties on the bond of the administrator against the distributees of the estate and their grantees, ■ seeking to have themselves subrogated to the rights of the administrators to have the land sold for the payment of a claim against the estate. The facts are sufficiently set forth in the opinion. Demurrers were, interposed to the bill and a motion made to dismiss it for want of equity.

Heard before Hon. W. W. Whiteside. This case was tried upon an agreed statement of facts, upon petition of the National Bank of Commerce to declare a trust in its favor on money in the hands of the assignees of the insolvent Shapard Bank and objections filed to the petition by the other creditors of the insolvent hank, and the assignees.

Heard before Hon. W. W. Whiteside. Proceedings by Taylor to establish as a preferred, claim, a claim against the Bhapard Bank, an insolvent, which had made an assignment for the benefit of creditors, in which Hutchinson, .et al. creditors of the bank, file objections. The facts are sufficiently set forth in the opinion. From a decree of the chancellor confirming an order of the register allowing the claim as a non-preferred claim, the claimant appeals.

Heard before Hon. A. H. Benners. This was a bill in chancery filed by John IT. AVallace as trustee in bankruptcy of the estate of Estes & Brown against William Redd, et als. doing business as the Birmingham Grain Co., seeking to declare a certain transaction a preference under the bankruptcy act and to avoid the same.

<p> Bill by Purchaser at Foreclosure Hale to Quiet Title; Gross-bill by One Respondent for an Accounting for Property Gotwerted. </p> <p>1. Fixtures; Machinery. — A saw mill and machinery connected therewith, and not adapted to other use, intended to be nsed permanently, are fixtures, as between the mortgagors and mortgagees of land.</p> <p>2. Quieting Title; Affirmative Relief l>y Cross Bill; 'statutes.— Where a mortgagee, who has purchased at foreclosure sale, files a bill to quiet and perfect title, under Sec. 720 of Code; 1896, a defendant may by cross bill obtain affirmative relief, and in this case hold complainant to a personal liability for the conversion of movable machinery on the mortgaged premises.</p> <p>3. Partnership; Use of Individual’s Land for Partnership Purposes. — The use of land belonging to an individual member of a partnership, by the partnership, does not render the land partnership property.</p> <p>Í. Same; Sale of Partner’s Interest; Liability of Purchaser for Previous Debts. — The purchaser of a partner’s interest in a partnership business is not liable for previous partnership debts, unless he assumes the same in his purchase.</p>

Heard before Hon. W. H. Simpson. Hall, claiming to own the mineral rights in certain lands described in his bill, filed the same to quiet his title thereto, alleging the necessary facts to bring the bill within the statute for quieting title. Demurrers were interposed to the bill, hut it is not necessary to here set them out. The facts sufficiently appear in the opinion of the court.

Heard before Hon. A. H. Benners. This is a bill filed by the Alabama Coal & Coke Company against the Gulf Coal & Coke Company, to quiet title to the mineral interest in certain lands named in the bill. The allegation and prayer of the bill are those required by the statute in such cases.

Heard before Hon. A. I). Sayre. Suit by Ida P. Noble against Mattie Campbell. Plaintiff filed a bill seeking to quiet title to a certain lot in the. city of Montgomery, making the necessary allegations under the statute.

Heard before Hon. A. H. Benneks. . This was a bill filed by Nathan Miller against the Jefferson County Savings Bank to quiet title to certain lands described in said bill.

Heard before Hon. W. L. Parks. This is a bill filed by Barr v. the members of the firm of Foy Bros., seeking to quiet title to certain land described in the bill. The evidence tended to show that Barr held a legal title to the land, but at the time of the filing of the bill Foy Bros, was in possession of the part of the land to which title was sought to be quieted. The facts sufficiently appear in the opinion.

Heard before Hon. W. H. Simpson. This was a bill filed by Lourania Denham against W. P. Davis, John Denham, and W. J. Elkins.

Heard before Hon. A. D. Sayre. This is a suit by Fisher H. Merritt as administrator v. Alabama Pyrites Co., et al., seeking to quiet title to the lands mentioned in the bill. The chancellor dismissed the bill as to the Clay county defendant, and granted relief to complainants, as to the other defendant.

Heard before Hon. John C. Carmichael. This was a bill filed by Fields to enjoin the foreclosure sale'of certain land under mortgages executed by him to Mrs. Fields, and for the cancellation of the mortgage, it is alleged in the bill that Fields borrowed from Mrs. Barclift a certain sum of money and agreed to pay her 12J per cent interest for the use of the money, and that he executed this mortgage to secure the same.

Heard before Hon. W. L. Parks. This was a bill filed by William McLeod against Sallie McLeod, as the administrator of James McLeod, and individually, and the other heirs of said James McLeod, to set aside, a conveyance made by him to the heirs, of his interest in said estate, on account of fraud, undue influence, weakness of grantor’s mind and inadequacy of consideration.

Heard before Hon. W. W. Whiteside. Charles Martin filed his bill on behalf of himself and such other creditors of E. Locke as desired to come in and make themselves parties thereto and bear their burden of the cost.

Heard before Hon. W. H. Simpson. This Avas a hill filed by appellee against appellant to abate a continuing nuisance. The prayer of the bill Avas to forcwor enjoin the defendant from again or further obstructing Avater channels or constructing or creating any further embankment, dams, or dykes for the obstruction of the floAV of waters from the said lands of the complainant into Brown's Creek as they lmve always naturally floAved.

Heard before Hon. Charles Á. Senn. Alexander T. London sued the Mutual Life Insurance Co. to recover a dividend due upon a certain policy of insurance issued by said Company upon his life. The Insurance Company answered that the amount was due, and paid the fund into court, alleging and making affidavit that the executor of D. S. Troy, deceased, Florence Troy, claimed the money.

Heard before Hon. A. H. Alston. This was an action begun by Morrow to recover on an insurance policy issued to him by appellant on a storehouse and stock of goods which ivas burned. The pleadings and the trial court’s action thereon together with the facts in the case sufficiently appear in the opinion of the court. The court erred in overruling appellants demurrer to replication of appellee to appellant’s pleas.

, Heard before Hon. J. C. Bichardsox. This was an action brought by tlie beneficiary in a benefit certificate issued on the life of W. (3. Zeigler. The complaint contained two counts, in tlie second of which was set out the benefit certificate, which was in words and figures as follows: “No. 5,916. Amount, $1,200. “Renefit Certificate. “Age, 33. “Expectancy, 31 years. Assessment Rate, $.65. Class 0. “Date of Expiration, Aug. 1903. “Love. “Truth.

Heard before Hon. Henry B. Foster. This was an action by (x. O. Prude, Sr., as next friend of several minor children, plaintiffs, against the Insurance Company and the complaint is in the following language: “The plaintiff claims of the defendant the sum of $600, the value of a dwelling house, which the defendant, on the 16th day of March, 1904, insured against loss or injury by fire and other perils of the policy of insurance mentioned, for the term of one year, which house…

Heard before Hon. J. TV. Marry. Major B. B. Morey married Mrs. A. J. Monk, a widow, who at the time of her marriage had three children, and one of them was-TV. S. Monk, appellant in this case. Major Morey, became a member of the American Legend of Honor, a mutual benefit society incorporated under the laws of Massachusetts, and in 1884 had a benefit certificate upon his life issued payable to Ms wife in the sum of two thousand dollars.

Heard before Hon. Chas. A. Senn. This is an action for money had and received, and on the common counts begun by Riddle against the McLester-VanHoose Co. The facts are that Smitherman & Co., of which firm D. H. Riddle was a member, bought goods of the defendant in the sum of $634.00.

Heard before Hon. John H. Bisque. This was an action for money bad and received, begun by appellee against appellant, as tax collector of Etowah county, seeking to recover taxes assessed against and paid by appellee under protest to appellant as such collector.

. . Heard before, Hon. Charles A. Senn. The summons was executed by service on E. V. Smith as president of defendant company on the 31st day of August, 1903. On the 9th day of November, 1903, there was a judgment by default, on proof of service of summons on E. Y. Smith, as president of defendant company, against the defendant.

Heard Indore Hon. A. I). Satke. This is an action begun by Pollock & Bernheimer against the Farley National Bank to recover the amount of a check sent to said hank for collection.

Heard before Hon. A. H. Alston. This was an action on the common counts brought by appellant against appellee. The defenses pleaded were, general issue, failure of consideration, want of consideration, and that the goods for which the suit was brought were brought upon consignment, that such as had been sold were paid for, and that the others were tendered to the plaintiff before suit brought.

- Heard before Hon. William Jackson. This action is upon a written order for goods, wares and merchandise sold by appellee to appellant. The conditions and contents of the order are sufficiently set out in the opinion.

Heard before Hon. A. I). Sayre. This was an action by appellant against appellee upon a contract of suretyship entered into between appellant and appellee as the surety of John TV. Hood & Co., who had a contract to erect a building for appellant. The bond or contract of suretyship was in words and figures as follows: “The State of Alabama, Montgomery Conntv.

Heard before Hon. Thomas W. Coleman. Tbis was an action by appellant against appellee to recover certain alleged overcharges in freight for. hauling coal to appellant at Anniston from the Birmingham district.

Marengo Circuit Court. Heard before Hon John T. Lackland. This was an action for services as physician, begun by Dr. Pitts against the estate of W. W. Duggar, for services performed for Duggar before his death.

Heard before Hon John Pelham. This was an action begun by appellant to recover of appellee, fees alleged to have been retained which properly belonged to the estate. The facts- are sufficiently stated in the opinion of the court. There was judgment for defendants.

Heard before Hon. John i-I. Disque. Thomas L. Johnson sued Motlow and another jointly for money had a,nd received lost by him on a wager to these defendants. The recovery in the lower court was joint, and the defendants appeal, and after severance assign errors severally and jointly. The facts sufficiently appear in the opinion. The real question at issue is can Collier and Motlow, under the facts in this case be made jointly liable for the whole amount of the wager.

Heard before. Hon. Jno. II. Hisque. This was an action for money had and received to the account of the appellant which the appellees refused to pay setting up in defense that it was paid out under orders of an agent of appellant and by appellant’s authority.

Heard before Hon. A. A. Evans. This action was begun by the Executive Committee of Foreign Missions to recover of- J. 0. Stakely as executor of the estate of William Stakely, who ivas surety on the bond of J. O. Stakely as Executor of L. A. Hopper deceased, the. amount of a decree rendered by the probate court of Bullock county against J. 0. Stakely as executor of the estate of' L. A. Hopper, and in favor of plaintiff, after execution returned no property found.

Heard before Hon. C. W. .Ferguson. This was an action by James F. Hawkins against the Louisville & Nashville Railroad Company to recover fees for inspecting oil, and was tried upon the following agreed statement of facts: “It is agreed by and between the plaintiff and defendant that James F. Hawkins is now, and was on the 14th clay of September, 1904, and prior thereto, county inspector of miners’ oil in and fertile county of Jefferson, State of Alabama, having been duly…

Heard before Hon. Charles A. Senn. Action by Max Krauss against the Pullman Company. From a judgment for plaintiff, defendant appeals. This is an action for breach of contract of carriage. The facts necessary to an understanding of the opinion are fully stated therein.

Heard before Hou. John P. Hubbard. This is au action of covenant, and the first count alleged a covenant against incumbrances, and set up a paramount and lawful title in anot-lier than the grantor. The second count counted on. a warranty of title, and set up an outstanding title in another.

Aitmal from Tuscaloosa Chancery Court. Heard before Hon. A. H. Benners. The plaintiff sought to recover for breach of covenant of quiet enjoyment from one far back in the chain of title.

Heard before Hon. A. A. Coleman. This was an action on the case for failure to deliver a telegram addressed to appellee. The facts are sufficiently stated in the opinion. _ Charges 5 and 6 should have been given. Charge 5 asserts that plaintiff could not recover for mental anguish. Charge 6 asserts a similar proposition upon the hypothesis, that as plaintiff was not entitled to recover nominal damages, he could not recover for mental suffering.

Hoard before Hon. Charles A. Senn. Action by appellant against appellee for failure to deliver telegram. The complaint and demurrers thereto are set out below. After the demurrers were overruled, issue was joined on the plea of the general issue.

Heard before Hon. A. A. Coleman. This was an action for damages resulting from a failure to deliver a telegram.

Heard before Hon. H. B. Postee. This was an action by appellee against appellant. The third count in the complaint was charged out at the request of the defendant.

Heard before Hon. A. A. Evans. This was an action by appellee against appellant for the negligent killing of a horse belonging to appellee by one of appellant’s engines. The evidence tended to show that the engine pulling one of defendant’s freight trains struck a horse belonging to appellee and killed him. There Aims conflict in the testimony as to the distance the horse walked down the track from the place where it came on to the point at which he was killed.

Heard before Hon. S. H. Sprott. This was an action by Quarles & Couturie against the Alabama Great Southern R. R. Co., to recover certain cotton delivered to the appellant at Moundville, Ala., to be shipped to Eutaw, Ala. The facts are sufficiently set out in the opinion of the court.

Heard before Hon. A. A. Evans. This was an action by appelle to recover of appellant the value of a cow killed by defendant’s train. The evidence of plaintiff made out a prima facie case under the statute.

Gadsden City Court. Heard before Hon. J. H. Disque. Tlxis was an action by appellee against apellant for killing bv appellant’s train of a horse belonging to appellee. The original summons and complaint contained tsvo counts and-were in the name of Mrs. J. L. Pogue.

Heard before Hon. H. B. Foster. This was an action for the destruction of cotton by fire alleged to have been caused by sparks from tbe defendant’s engine on account of defect in tbe spark.arrester. Tbe fire originated in tbe cotton, and spread to tbe building and other contents, most of which was consumed.

Heard before Hon S. H. Sprott. This was an action begun by appellee against appellant to recover the value of 115 bales of cotton, alleged to have been burned by lire originating from sparks thrown out by appellant’s engine.

<p> Action for Damages for Failure to Deliver Freight. </p> <p>1. Carrier; Delay in Delivery o.f Goods; Conversion. — The failure of a carrier to deliver goods in a reasonable time is not a conversion, but a breach of contract, and the consignee cannot refuse to accept them and recover their full value, unless the delay utterly destroys the value of the goods, or causes an equivalent of a total loss ; and the consignee must accept the goods, although at the time he has no use for them.</p> <p>2. Same; Same; Missing Articles. — Where there has been a delay in the delivery of goods by a carrier, but an offer of delivery is made and refused because some of the go.ods are missing or damaged, the consignee cannot refuse to receive the goods and maintain an action for failure to deliver the goods.</p> <p>3. Same; Delivery at Unusual Place; Waiver. — In an action for failure to deliver goods, where the consignee unqualifiedly refused to • receive them, although the delivery was sought to be made at other than the usual place, the consignee waived the right to insist upon a delivery at the usual place.</p> <p>4. Same; Damages. — In an action for failure to deliver goods where it was shown that the carrier offered to make delivery, which was refused, the damages recoverable are limited to the damages sustained to the goods, and to damages for the delay in making the delivery, and it is error to render judgment for the full value of the goods, unless they are a total loss.</p>

Heard before Hon. Daniel Partridge, Jr. The state on tlie relation of Class filed a. petition in tlie nature of quo warranto, against tlie city of Union-town, its mayor and aldermen, and one Harwood, alleging that they were usurping and exercising an exclusive right and franchise to sell liquor in said town, with a prayer for ouster.

Heard before Hon. John Pelham. E. IT. Hanna and others on the relation of the State of Alabama filed an information in the nature of quo warranto seeking to test the title of the respondent Tun-stall to the office of solicitor of Calhoun county, and to ascertain Hanna’s standing as to the said office.

Heard before Hon. A. D. Sayre. This is an action.for mandamus, filed by appellee . against appellant, asking that appellant as judge of probate be required to issue to appellee a county license as a retail dealer in spirtuous, vinous, and malt liquors. The petition alleges a compliance with the statute in reference to the filing of the recommendation and the making of'the oath and subscribing the same, and the tender of the amount of state license required.

Heard before Hon. O. W. Ferguson. ■ Petition for mandamus by Parris, as coroner of Jefferson county to require the treasurer of said county to pay him fees earned as coroner without having the same audited and allowed by the Board of Revenue. The treasurer answered setting up the want of authority to pay said claims before they were audited and allowed by the hoard. Demurrers were sustained to the-answer and a peremptory writ granted.

Hoard before Hon. H H. Spkott. Mandamus by the state on the relation of A. L. Hicks & Co., to compel Hudgins as judge of prohate to issue relator a license to fell liquors in the town of Gordo, Pickens county, Ala.

Heard before Hon. S. H. Sprott. This is a petition for mandamus filed by Sherer and another claiming to exercise the powers find to be entitled' to the office of commissioners of Fayette county against the judge of probate of said county to compel him to issue his warrant on the treasurer for their mileage and per diem as such county commissioners. The answer to the petition alleges that two other persons are claiming the office and exercising its functions.

In tlie Supreme Court. Application by T. J. Mathews for mandamus against (1. K. Miller, as judge of the city court of Talladega, to compel the granting of a motion staying further proceedings in an action by one Farrell against Mathews until Farrell should pay the costs of a prior appeal within a reasonable time, ox*, in default thereof, that the suit be dismissed. The facts sufficiently appear in the opinion of the court.

Heard before Hon. IT. A. Pearce. Mandamus by the State on the relation of Carlisle against Reeves, sheriff, to compel him to put Carlisle in possession of certain lands under a writ of possession after the return day thereof, or under a writ of posses-session to be afterwards issued. The facts sufficiently appear in the opinion of the court. From an order granting the prayer of the petition, Reeves appeals.

Original writ in Supreme Court. Prohibition, on behalf of the Birmingham & Atlantic. Hallway Company, to restrain lion. John Pelham, individually and as judge of the seventh judicial circuit, from hearing and determining a cause pending' in the circuit court of St. Clair county, wherein one Spears was plaintiff and petitioner was defendant.

Heard before Hon. S. H. Sprott. Petition for prohibition on the relation of the State by Wakefield, et als. against Goodwin, Judge of… Held: when the regular business-of the county must be transacted, together with the necessary adjourned and special term, and alleges that the contract was made and entered into for the construction of the bridge at a June term when no special or adjourned term had been called and at which time the powers of the court were limited to…

Heard before Hon. John Pelham. This was an action in the nature of prohibition or quo warranto by Brown on the relation of the state of Ala,bama- against Porter and others seeking to test the authority of Porter, et ah, as commissioners under appointment of the Governor, to hold an election to determine whether or not the county site of Cleburne county should be moved from Edwardsville to Heflin in said county.

Heard before John F. Kelton. This was a petition addressed to the probate judge of Blount county seeking to contest an election held on the 2d day of January, 1905, in a portion of election precinct No. 37, commonly called “Dailey’s Beat,” to determine whether or not stock should be allowed to run at large in said portion of Dailey’s beat. The contest was regularly set for hearing, and parties interested on the other side of the question were given notice of the contest.

Heard before W. W. Haralson. On November 15, 1904, certain persons, describing themselves as freeholders of precinct No. 19 in Blount county, Ala., filed a petition in the probate court of said county, asking that an .election be held in certain territory of said county, which is described in the petition and is not a description of the entire beat No. 19, to ascertain whether or not stock should be permitted to run at large in the territory described.

Heard before Hon. Thomas W. Coleman. This was an action-of ejectment, begun in the city court of Anniston by appellant against appellee. The first demise was laid in Ben Johnson; the second, in the Oxford Iron Company; the third, in A. O. Stewart, as sheriff; the fourth, in A. L. Tyler; the fifth, in the Woodstock Iron Company; the sixth, in the Anniston Land & Improvement Company; the seventh, in I). T. Parker and Cornelia A. Parker; the eighth, in appellant.

Heard before Hon. Samuel B. Broavne. Action by John Doe on the demise of J. McDermott, et al: against Delphine Moog to recover certain land. The facts sufficiently appear in the opinion. The court erred in admitting in evidence the motion for an order of sale in the city court, .the certificate of sale granted by the judge thereof, the petition to substitute the loss of venditioni arponas, and the deed executed by the sheriff of Mobile county.

Heard before Hon. J. W. Mabry. This was an action by Mary J. Kennedy to recover of Mattie.C. Rainey a certain tract of land described in the complaint. The facts upon which the opinion is rested sufficiently appear therein.

' Heard before Hon. A. H. Alston. The Cordova Coal, Land & Improvement Co., sued the Calumet Coal Co., in ejectment for certain lands mentioned in the complaint. The defendant filed a disclaimer to the land sued for at the time of the beginning cf the suit or subsequent thereto. A judgment was rendered for plaintiff against defendant for want of a plea for title to the land sued for describing it, and the plaintiff was taxed with the costs of the suit.

Heard before Hou. J. A. Bilbro. J. A. Sewell died seized and possessed of 235 acres of land of value more than two thousand dollars. The widow had dower assigned in the land and it being reduced to 1G0 acres,, petitioned the probate court to set the remainder apart for a homestead. There was no administration on the estate.

Heard before Hon. John Moore. James F. King sued Frank Driver, and others to recover possession of a certain tract of land set out in the complaint. The facts sufficiently appear in the opinion. There was judgment for plaintiff, and defendants appeal. On motion to strike bill of exceptions, and as holding adversely to such motion appellant’s cite the Cooley’s Case, 132 Ala. 590.

Heard before Hon. James A. Uilbro. This was an action of detinue, begun by appellant against appellee for the recovery of a mule.

Heard before Hon. W. W. Haralson. This is a suit in detinue begun by John Evans against J. E. Snellgrove to recover two horses belonging to P. H. Snow before his death. The facts are that Snow came to the office of Evan’s attorney in Albertville and executed a note and mortgage to Evans upon the horses involved in the suit.

. Heard before Hon. D. W. Speake. Detinue for a mule by Witt against Wellden. Tbe fact upon wMcli the opinion is rested sufficiently appear therein.

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. B. C. Jones.</p> <p>This was an action of detinue begun by Charlie Whiteside against J. W. Rarden for- a horse, wagon and harness. The summons and complaint were amended so as to make the Rarden Mercantile Co., a defendant and pending the trial and before submission of the case to the jury, the summons and complaint were again amended by striking J. W. Rarden as a party leaving the Rarden Mercantile Co., the sole party defendant.</p> <p>The court should have discontinued the cause after striking out defendant, J. W. Rarden. It worked an entire change of parties. (Counsel also discuss other matters not discussed in the opinion.)</p> <p>The court did not err in overruling defendant’s motion to discontinue the case, as the Rarden Mercantile Co., came in volnntarily and defended the case; besides the objection was not made in seasonable time. — 1 Ency. PL & Pr. p. 532-4.</p>

Heard before Hon. A. L. Hasty. Proceedings by J. Marx as administrator of the estate of Aaron Little for the sale of lands to pay the debts of the estate. The heirs were made parties and contested the petition, alleging among other things that the petition did not properly or sufficiently describe the land sought to be sold and that the estate did not owe any debts, or that if it did, personal property was sufficient to pay them.

Heard before Hon. A. H. Alston. Appellant sued the individuals composing the firm of Barron & Russell, and garnisheed the Continental Fire Insurance Co., who answered indebted and paid the money into court,. suggesting at the same time that Phillips-Burttorf! Mfg. Co. claimed the money. On notice to them the Phillips Company came in and propounded their claim. The issue was found in favor of the claimants.

Heard before I-Ion. G-. K. Miller. The facts leading up to- the rendition of the judgment, the waiver and the judgment entered are fully set out in the opinion of the court.

Heard before Hon. O. K. Miller. Action for damages for taking water from a running stream, and polluting tbe stream.

<p>Appeal from Washington Circuit Court.</p> <p>Heard before Hon. John C. Anderson.</p>

<p> Practicing Medicine Without License. </p>

<p>Appeal from Hale Circuit Court. • •</p> <p>Heard before H011. John Moore.</p>

<p>Appeal from Covington Circuit Court.</p> <p>Heard before Hon. William H. Samford, special judge.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. Chas. A. Senn.</p>

<p> Bill to Enforce Material Man’s Lien. </p>

<p> Action for Damages. </p>

<p>Appeal from Blount Circuit Court. .</p> <p>Heard before Hon. W. W. Haralson. }</p>

<p> Bill for Settlement of .Executorship. </p>