Volume 146 — Alabama Reports

Heard before Hon. John Pelham. William Kline was indicted for the murder of John Phillips. The indictment was preferred and the trial had in the circuit court in Calhoun county. The evidence showed that the crime was committed in that portion of Cleburne county that Vas taken from said county and added to Calhoun county, by the act of Sept. 30, 1903, and more than a half mile from Calhoun county line as fixed by said act.

Heard before Hon John T. Laokland. The defendant was charged with unlawfully and with malice aforethought killing Julius Wheeler by shooting him with a gun or by cutting him with a knife, and it appears from the face of the indictment that it was preferred at an adjourned term of the circuit court of Monroe county.

Heard before Hon. C. J. Torrey, Special Judge. The defendant was indicted and tried for the killing of B. McLeod by shooting him with a pistol.

Heard before Hon. W. H. Thomas. The defendant was indicted for killing Watson Ferguson, but the means is not stated in tbe indictment, nor is it alleged tbat be ivas killed by means unknown to tbe grand jury. The other facts in tbe case sufficiently appear in tbe opinion of the court. Tbe defendant was convicted and sentenced to tbe penitentiary for life.

Heard lief ore Hon. John T. Lackland. The defendant was indicted and tried for murder in the first degree. In selecting the jury to try the case from the special venire, the judge had the names of six persons drawn from the hat, and had the six come around and he sworn, and then asked each the qualifying questions, permitting all six to answer the same at one and the same time. To this, the defendant excepted. Before the jury was completed the venire'was exhausted.

Circuit Court. Heard before Hon. Joi-in Pelham. Defendant was indicted for murder in the first degree, and after announcing ready for trial, but before trial Avas actually entered upon, he moved to quash the venire upon the ground that the venire contained the name of certain jurors avIio were drawn for that week, but who were not summoned, and upon the further ground that the venire served upon him was not signed by the sheriff of the county.

Hear before Hon. D. W. Speake.' The defendant Aras indicted and tried for murder.

Heard before I-Ion. A. H. Alston. Tbe defendant was indicted, tried and convicted for killing Maggie Dickerson by striking her with an ax or pistol, or with some instrument unknown to the grand jury. lie was sentenced to be hanged.

Heard before Hon. W. W. Haralson. Cleveland Hill ivas tried and convicted of manslaughter. The facts upon which the opinion is. rested sufficiently appear therein.

Heard before Hon. I). W. Speake. The defendant was indicted for the murder of Jim Allen by cutting him with a knife. He was convicted of murder in the second degree and sentenced to the penitentiary for 50 years. The facts necessary to an understanding of the opinion sufficiently appear therein.

Heard before Hon. D. W.’ Speake. The defendant was indicted for killing Doc Grisham by shooting him with a pistol. The evidence on the trial shows that the killing was done, by a son of this defendant. after the deceased had struck this defendant. The other facts necessary to properly understand the opinion are fully set out therein.

Heard before Hon. Gl. K. Miller. The defendant was indicted for assault with intent to murder one Hubbard.

Heard before Hon. A. H. Alston. The defendant was indicted for carnal knowledge or abuse in attempting to carnally know a girl under 10 years of age.

Heard before Hon. O. J. Semmes. The statute protects the actual possession of the property and not the mere constructive possession arising out of ownership, and where the party is not in actual possession, the offense is not committed.' — Watson v. The State, 63 Ala. 23; McLeod v. McLeod, 73 Ala. 43; Bohannon v. The State, (Ala.); Goldsmith v. The State, 86 Ala. 55; Brunson v. The State, 140 Ala. 201.- The actual possession of the property ivas at the time surrendered to…

Heard before Hon. It. I. Burke. The affidavit in this case is in the following language: State of Alabama, Cullman county. County court. Before me, B. I. Burke, judge of the county court of said county, personally appeared I).

W. T. Lawler. The indictment against the defendant was in the following language: The grand jury of said county charge that before the findng of tins indictment, A. T. Patterson, whose Christian name is to the grand jury otherwise unknown, unlawfully allowed hogs to run at large in a district or territory in Madison county, Alabama, in which by law hogs are prohibited from running at large, against the peace and dignity of the state of Alabama.

Heard, before Hon. John T. Lackland. The indictment in this case charges the defendant in the first count until selling sprituous, vinous, or malt liquors without license and contrary to law. The second count charges that the defendant sold spirituous, vinous or malt liquors, or intoxicating bitters, in quantities less than one quart, without license and contrary to law.

Heard before Hon. John C. Anderson.- Tbe defendant was indicted for selling liquor without license. The first count in the indictment charged that he did unlawfully sell, or otherwise dispose of vinous, spirituous, malt or other intoxicating liquors within the limits of Clarke county.

Heard before Hon. John T. Lackland. The defendant was indicted and convicted for selling liquor without license in Clarke county. The facts upon which the opinion is predicated and the exceptions to the evidence are sufficiently stated in the opinion. The court should have excluded the evidence descriptive of the checks, as the checks themselves were the best .evidence of what they were like.

Heard before Hon. S. L. Brewer. The defendant was indicted and convicted of bigamy, in that he unlawfully married one Lydia Edwards, having a wife then living'. Demurrer was interposed to the indictment, for failing to show that the co-habitation as therein charged, occurred in the state of Alabama.

Appear from Jefferson Criminal Court. Heard before Hon. S. L. Weaver. Prosecution was commenced by affidavit under the act of Sept. 22nd, 1903, and the affidavit was made by the wife in Feb. 1905. The evidence tended to show that defendant was married to prosecutrix in Jan. 1903, and defendant left home in Feb. 1903, leaving his wife without means of subsistence and has not since lived with her.

Heard before Hon. S. L. Weaver. The defendant was indicted for grand larceny. The facts presented for review are stated fully in the opinion.

Heard before Hon. W. H. Thomas. The indictment in this case was in the following language : “The grand jury of said county charge that before the finding of this indictment J. M. Bradford, whose Christian name to the grand jury is unknown, having been convicted of the offense of grand larceny in the city court of Montgomery of Montgomery county, Ala., at the October term, 1905, of said court, and duly sentenced to the penitentiary of the state of Alabama, did attempt to…

Heard before Hon. E. E. Almon. The defendant was indicted for practicing medicine without a license or without procuring a certificate signed by the senior censor of the State Medical Association. The facts sufficiently appear in the opinion of the court. The evidence of the witness Greene was incompetent. The objection to the question and answer should have been sustained. — líanos v. Brownlee, (53 Ala. 277; M. & W. V. By. Go. v. Varner, 19 Ala. 186.

' Heard before Hon. D. A. Greene. The defendant was indicted for knowingly or willfully driving an animal running at large in a district where it was lawful for such animal to run at large into a district in said county where it was not lawful for said animals to run at large with the intention that said animal should be impounded. Trial was had and conviction obtained on Nov. 16th, 1905, and an order entered granting sixty days for signing bill of exception.

Aithal from Mobile Oity Court. Heard before Hon. O. J. Semmes. The cause was tried upon the following agreed statement of facts: “That the pamphlet attached hereto as exhibit A is a true copy of the ordinance adopted by the mayor and general council of the city of Mobile, and that- said ordinance, and particularly subdivision or subsection 28 thereof, is the ordinance, or part of ordinam-e, for an alleged violation of which this prosecution veas instituted.

Heard before Hon. Samuel B. Browne. Tbis suit was commenced by Mobile county, and sought to recover of the defendants license tax for the year 1903 of $250 for eixgaging in the business of buying and selling futures on commission for other persons in the city of Mobile, ixx the county of Mobile.- The pleas were: (1.) The general issxxe. “(2.) Actio noxx, because they say that they paid the plaintiff the amount due for engaging in the business of buying and selling futures…

Heard-before Hon. A. A. Evans. Tbe counts upon which the cause was tried are numbered 2 and 4 respectively and are as follows: Count 2.

<p>Appeal from Mobile Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Action by the state of Alabama to recover of Spira as receiver, the franchise oí* corporate privilege tax due by the Mobile Brewery of ivhich he was receiver. There was judgment for tlie state and the receiver appeals.</p> <p>The Mobile Brewery having paid the license tax required by subdivision 7 of § 4122, was exempted under the express provisions of subdivision 55 from paying any other or further privilege or license tax. — Lehman Durr & Co. v. Robinson, 59 Ala. 234; IT. 8. r. Collier, 3 Blatch.333; Broohs v. Mobile, 31 Ala. 277; Torreyson v. Board, 7 Nev. 19; Lever see v. Reynolds, 13. Iowa, 310; City of 8 an Francisco• v. Kelsey, 5 Cal. 169; Aldridge v. Mardoff, 32 Tex. 204; Sedgwick Const, and Sat. 200. There is a distinction between a license fee and a license tax and all the , sections of the code in reference thereto are to be construed as one statute.</p> <p>Clearly the license tax required by subdivision 55 is for the privilege of doing business as a corporation, and consequent exemption from personal liability on the part of the stockholder. — State v. Anniston Rolling Mill, 103 Ala. 121. Both section or rather subdivisions have a field of operation, and the point of contention is expressly decided against the appellant in the case of Troy Fertilizer Co. v. State, 134 Ala. 333.</p>

Heard before Hon. William S. Anderson. This was an action of forcible entry and detainer, instituted before a justice of the peace. It was removed to the crcuit court by the defendant, under the authority of §§ 2147, 2149 of the civil code of 1896. Upon the trial in the circuit court the presiding judge 'excluded the plaintiff’s evidence, which resulted in a non-suit, with a bill of exceptions.

Heard before Hon. A. A. Coleman. Action of unlawful detainer by Cooper, for the use of Leishman, against Gambill. The facts are stated in the opinion of the court. The court erred in giving the general affirmative charge for the defendant. —0 McDevitt v. Lambert, 80 Ala. 536. The purchaser was the proper person to> give the notice.

Heard before Hon. Samuel B. Browne. Action of unlawful detainer, begun by appellees against appellants. The facts sufficiently' appear in tbe opinion. The court was without authority to tax the defendant with the costs, upon the dismissal of the cause under the facts in this case. — §§ 1325 and 1353, code 1896; Brown v. Bartlett, 2 Ala. 29; Northern v. Manners, 121 Ala. 588; Hilliard v. Brown, 103 Ala. 318.

Heard before Hon. E. B. Almon. Action of unlawful detainer originating in tbe justice court. Ford recovered of Mixon several judgments amounting to $173.00 and tire cost of each judgment and procured the same to be recorded in the office of the judge of probate of Marion county. Prior to the rendition of the judgment against Mixon, Mixon executed to Lewis a mortgage to secure certain indebtedness and :as an evidence of the indebtedness, executed several promissory notes.

Heard before Hon. Henry B. Foster. This was action commenced by W. D. Seed against Levi Anthony, John Anthony, Tom Anthony, Eddie Prince, Susie Prince, and 31 ose Prophet to recover of them certain lands described in the complaint. Eddie Prince disclaimed interest or possession in any of the lands sued for. There was suggestion of record by Levi, John, Tom, and Rebecca Anthony and 3fattie'Beale of a three-year adverse possession and permanent improvement.

Heard before IIon. Samuel B. Browne. Tlie city of Mobile,' a municipal corporation; brought a seperatc- action of ejectment against each of the appellants named above, and had judgment for the part of the lands occupied by the several appellants. As the same question is involved in each case only one opinion ivas Avritten and made applicable to each case. The facts, sufficiently appear in the opinion.

<p>Appeal from Houston Circuit Court.</p> <p>Heard before 1-Ion. H. A. Pearce.</p> <p>This was an action of ejectment begun by Minnie Elliott against Napier, et al. The plaintiff was Minnie Hughes, the daughter of the grantor in the deed referred to in the opinion and one of the grantees in the deed. It appeared also from the testimony that the defendants were-children of the grantor in the deed. It further appeared that the grantor executed the. deed to Nancy Hughes and Minnie Elliott, and that the deed was filed and recorded in the probate office and taken by the grantor from the probate office and put among his other papers in a. trunk at his home, and that the grantor continued in the possession of the land until his death. Upon the. trial, the defendant offered to show certain statements alleged to have been made by the grantor at the time he signed and executed the deed. The court sustained objection to the question and defendant’s counsel stated to the court that Hughes, the grantor in the deed, said to witness at the time he made the deed that he was sued for a security debt, and that he wanted to make a deed of his land to Minnie and his wife and put the same away in his trunk so that the grantees in said deed could claim ihe land if Malone should sell or undertake to sell them on a judgment against him. The court sustained the objection and defendant’s counsel stated to the court that if permitted to' do SO', the witness would further testify that immediately at the time that the deeds were made, the grantor therein said that he wanted to make, the deed to the grantee, have them recorded and put them away in his trunk, not to be delivered but so that his wife and daughter could claim them should Malone ever try to sell the land, and a number of other statements of like effect. The court declined to permit the witness to testify to these facts.</p> <p>The question of delivery depends on the intention of Joseph Hughes and declarations made by him at the time of the execution of the deed in reference to his intention were admissible to shed light on the question of delivery vel non. — Fitzpatrick v. Brigman, 133 Ala. 242; Badders v. Dams, 88 Ala. 372; McLemoro v. Pinkston, 31 Ala. 269; Moses v. Katzenberger, 84 Ala. 95; GUlispie v. Burleson, 28 Ala. 561; Birmingham Ry. Co. v. Mullin, 138 Ala. 614;.Mon£-gomerg St. Ry. Go. v. Shank, 139 Ala. 489.</p>

Heard before Hon. J. P. Hubbard. Detinue by the Chattahoochie Grocery Co. against A. Pelham for the recovery of certain goods for fraud and rescission. The facts necessary to an understanding of the case are sufficiently stated in the opinion.

Heard before Hon. Samuel B. Browne. Action of detinue by Dumas against Sigmund Haas for two bales of cotton. Appellant executed and delivered. his promissory note to Brown Bros,, in the sum of $163.81 as set out in the opinion. Brown Bros., negotiated this note and mortgage before maturity to the People’s Bank. Brown Bros., made advances to appellant of $177.35.

Heard before Hon. W. W. Haralson. E. J. Clifton executed a mortgage to Daniel Bros., upon certain oxen and wagons. At a later date, he executed a mortgage on the same property to H. R. Jordan & Son. Daniel Bros, obtained possession of the property through a suit in the Gadsden city court, and Jordan & Son brought this action of detinue for the recovery of the property. Jordan & Sons were not parties to the former suit.

<p> Detinue. </p> <p>1. Witnesses; Impeachment; Inconsistent Statements.- — When a witness- has testified that certain property never did belong to defendant, it may be shown, proper predicate having been laid, that such witness had made other and contradictory statements concerning the same subject matter; not as substantive testimony, for or against title, but as affecting the credibility of the witness.</p> <p>2. Certiorari Bond; Appeal; Amount. — A motion to require additional security, rested on the ground that the penalty of the bond was. only $300.00, and the costs at that time amounted to more than $215.00, was properly refused, when it appears that at the time the certiorari bond was made there was no money judgment against the party appealing, and the costs amounted to only $3.2.35, and that the bond was made in substantial compliance with Secs. 482-483, Code 1896.</p>

Heard before Hon. A. A. Coleman. Tliis was a suit for damages for personal injury, brought by appellant against appellee.

Aiteal from Marshall Circuit Court. Heard before Hon. James A. Bilbro. Action by Francis Hill, mother, to recover of the N. C. & St. L. Ry. damages for death of son, a minor, employed by defendant without the consent of the parent, and put to hazardous labor on the defendant railway,' that of brakeman. The facts necessary to an understanding of the points decided sufficiently appear in the opinion of the court.

Heard before Hon. C. W. Ferguson. This was an action by the administrator of an employe of defendant for negligently causing the death of his intestate. There were six counts in the complaint.

Heard before Hon. E. B. Almon. Action by Joe Richards by next friend against the Sloss Sheffield Steel & Iron Co., for damages for an injury sustained while in their employment. The nature of the aclion and the tendencies of the' evidence are sufficiently stated in the opinion of the court. The giving of the affirmative charge for defendant was error.

Heard, before I-Ion. A. A. Coleman. Action by Tom E. Clements against the Alabama Steel & Wire Co. There was motion to strike bill of exceptions, because not signed in time. The evidence did not tend to support the allegations of count B. The other tendencies of the evidence are sufficiently stated in the opinion of the court.

Aureal from Jefferson Circuit Court. Heard before Hon. A. A. Coleman. Tliis was an» action for damages resulting to a passenger from a collision of defendant’s car with a train of cars on the Louisville & Nashville railroad through the negligence of defendant’s servants'or agents in charge of the car on which plaintiff was a passenger.

<p> Action for Personal Injuries. </p> <p>1. Motions; New Trial; Discontinuance; Waiver. — A motion for a new trial was heard and determined on its merits, without objection or claim that the court was" without authority to hear the same because the record failed to show an order continuing the motion. Held to be a waiver of the discontinuance.</p> <p>2. Negligence; Proximate Cause. — The action was for injuries to a person on account of the railroad negligently setting fire to a dwelling. The evidence showed that the person escaped from the house without injury, but returned to the burning house and received the injuries complained of. • Held, that the casual connection between the negligence charged and the injuries received was not broken by leaving the house in the first instance.</p>

Heard before IIon. Chas. A. Senn. This was an action by Bettie Jones, administratrix against appellant for damages resulting from the death of a child nine years old. The child was killed by a street car operated by appellant while crossing appellant’s track.

Heard befoie Hon. S. L. Brewer. Action by Wilson v. L. & N. R. R. Co-., for damages for injuries sustained by plaintiff alleged to be due to the frightening of plaintiff’s team by the negligence of the defendant’s servant. The facts are sufficiently stated in the opinion of the court.

Heard, before Hon. W. S. Anderson. 'This was an action for damages resulting from injury received by plaintiff’s wife as a passenger on defendant’s cars in attempting to alight therefrom. The damages claimed are for loss of companionship, medical attention, and mental anguish. The pleas were the general issue, and pleas of contributory negligence of plaintiff’s wife, Katherine Walsh, in the way and manner in which she alighted from the car when she received said injuries.

I-kurd before Hon. William S. Anderson. This was an action by appellee against appellant to recover damages for personal injury to ber as a passenger, under a complaint charging that while a passenger upon one of defendant’s cars she had been injured bv reason of the negligence of the defendant company in bringing its car to a stop at an improper and dangerous place of exit, and negligently inviting her to. alight therefrom, wherefore she fell and suffered a fracture of her…

Heard before Hon. Samuel B. Browne. Action by Freddie Ball by next friend against Mobile Light & Railroad Co., for damages resulting from negligent carriage of plaintiff as a passenger. The facts are sufficiently stated in the opinion of the court. At the conclusion of the testimony, the general affirmative charge for the defendant was given. The plaintiff was a passenger. — A. O. tí. R. R. Co. v. Yarbrough, 83 Ala. 238; 5 Am. & Eng.

Heard before Hon. Samuel B. Browne. Action by Callie V. Smith against the Mobile, Jackson & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals.

Appear from Montgomery City Court. Heard before Mox. A. I). Sayre.' This was a suit for damages sustained by appellee on account of the alleged negligence of the appellant in leaving a bole or ditch open and unguaided on one. of the public streets of Montgomery, into which appellee, while crossing the street, fell and sustained injuries complained of. The original complaint contained six counts.

Heard, before Hon. B. M. Miller. Action by Chute Quinn, by next friend, against appellant for damages for being put off tbe train, on which be was a. passenger before reaching the station of his destination. The evidence tended to show that the plaintiff together with his mother purchased a ticket from Bloc-ton to Brookwood and was on defendant’s train as a passenger to be transported to that station. That when the train reached Alabama.

Heard before Hon. C. W. Ferguson. Action by Dollie McCoy, administratrix of the estate of Mattie Osby, deceased, against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. The facts are sufficiently-stated in the opinion of the court.

<p>Arpead from Jefferson Circuit Court.</p> <p>Heard before Hon. A. A. Coleman.</p>

William S. Anderson. Action by Hannah Schneider as administratix against the appellee for damages for causing the death of her intestate. The facts upon which the opinion is rested and which ivas excluded by the court on motion of the appellee are sufficiently stated in the opinion of the court. The track being imbedded in the street was a part of the same and hence deceased vims not a trespasser. — Glass’ case, 94 Ala. 581. The court erred in excluding the testimony of Bobe.

. Heard before Hon. John Moore. This was an action for damages for placing double bents in a creek and diverting tbe mud and water from tbe said creek on plaintiff’s land. It is alleged tliat tbe bents were constructed by tbe railroad company to support a bridge across tbe creek over which their tracks ran. Demurrers were sustained to tbe original complaint and leave granted to amend. Tbe complaint was not amended at that time.

Heard before I-Ion. C. W. Ferguson. The character of this action is stated in the complaint which is as follows: Count 1.

Bessemer City Court. Heard before Hon. B. O. Jones. Action by Cf. M. Lovejoy against the. Bessemer 'Waterworks Company. From a judgment in favor of defendant, plaintiffs appeal.

Heard before Hon. John H. Bisque. Action by Hoge against the Southern _Ry. Co. for the negligent killing of two mules, the property of plaintiff. The pleadings and the facts are stated in the report of this case, 141 Ala. 351, 37 South. 439. The differences are noted and set out in the opinion of the court. After noting the difference in tire facts on the former appeal and this one cited, So. ID/. Co. v. Shelton, 136 Ala. 191; Ccn. of (hi. 'Ey. r. Fochee, 126 Ala. 199; Chat.

Heard before Hox. Charles A. Sexn. Action by Goldstein Bros, against the So! Ry. Co. for failure to deliver certain goods to parties in Baltimore, delivered by plaintiffs to defendant for shipment to that point, delivery of which Avas not made. The facts are sufficiently stated in the opinion of the court.

<p> Action on Bill of Lading for Difference in, Weight of (■niton Shipped Thereunder. </p> <p>Carriers; Bills of Lading; False Statements; Liability of Carrier.— The compress company delivered to the common carrier a shipment of cotton in a sealed car, with certificate of the eon-tents of the car. The carrier’s agent issued, on the certificate, a bill of lading for fifty bales of cotton of a specified weight. The bill of lading contained the words “contents and condition of contents of packages unknown.” The car contained fifty bales of cotton, but of considerably less weight than stated in the bill, and the consignee, who purchased from the consignor, was deceived to his injury. Held, the carrier was not liable to consignee, either under the general principles of the common law, nor under section 4223, Code of 1890.</p>

<p>Appeal from Mobile Circuit Court.</p> <p>Heard before Hon. Samuel R Browne.</p> <p>This was an action begun by appellee to recover of appellant the sum of $1,000 for the killing of three mules and two horses. There was considerable pleading in the cause unnecessary here to he set out. The case made by the testimony for appellee was: - That they owned and operated a large warehouse for the storing of beer contiguous to the tracks of the Mobile & Ohio Railroad Company in the city of Mobile. That in this warehouse a considerable number of horses and mules were kept when not engaged in delivering beer to the various customers throughout the city. There were two openings to the warehouse, inclosed by shutters or gates, one of which was used by the delivery wagons of the company, and the other of which contained a spur track construct-eel and operated by the Mobile & Ohio Railroad Company for the purpose of loading and unloading beer shipped by appellee from its brewery to its warehouse in Mobile and from its warehouse to its customers in the vicinity of Mobile. That on a certain Saturday night three mules and two horses were turned loose in the warehouse, and the wagon entrance was closed. At the time they were turned loose the spur track entrance was closed by a box car, so that the gate could not be shut, but while the car remained in the opening the stock could not escape. This opening remained in this condition from Saturday night to some time during the following Sunday night. On Monday morning following, these mules and horses were found at the crossing of the Louisville & Nashville Railroad Company track over One Mile creek in the suburbs of the city, three of them dead, and two so badly injured that they were afterwards killed by order of the Society for the Prevention of Cruelty to Animals. The defendant requested the court to give the affirmative charge after it had made a motion to exclude the testimony as being incompetent and immaterial and failing to make out a case. The court overruled the motion and refused to give the charge. The evidence further disclosed that at the point where the stock was killed, the Mobile & Ohio Railroad Company had ho tracks, but that the track near which they were found was owned by the Louisville & Nashville Railroad, and that the Louisville & Nashville alone operated trains over these tracks. Jt was further shown by the testimony that no other railroad operated trains over the spur track entering the inclosure of appellee’s warehouse, and that tlie switching crew of the Mobile & Ohio Railroad Company, who alone operated trains over this spur track, removed the car from the opening without closing the gate, which permitted the stock to escape. There was verdict for appellee, and judgment thereon.</p> <p>(Counsel discuss all the assignments of error and cite authorities to sustain them, but it is deemed unnecessary, in view of the opinion, to collate them except as to the points deckled.)</p> <p>The intervention of an independent responsible cause directly producing the damage makes the first cause too remote. — A. G. S. v. Vail, 38 So. Rep. 324; Selma H. etc. Ry. v. O-wen, 132 Ala. 420; L. & ~N. v. Quick, 125 Ala. 553; 'Williams v. Woodward Iron Go., 106 Ala. 254; Western Ry. v. Mutch, 97 Ala. 196. /</p> <p>The affirmative charge for appellant should have been given because:</p> <p>(1) The allegation of negligence against appellant was, to-wit, Oct. 1st, 1902, the attempted proof of negligence was all as to Sept. 14 or 15, 1902. This was fatal variance. — B. T. V. <x G. -v. Garloss, 77 Ala. 443, at p. 447.</p> <p>(2) All the evidence showed that the negligence complained of was not the proximate cause of the damage.</p> <p>(3) There was no proof that a switch engine or any engine killed the stock. Finding the stock dead beside the track would create no presumption that it had been killed by a train, in a suit against any other than the Railroad Co. beside whose track it was found.</p> <p>Refusal of defendant's request charge No. 3, by the court Avhich constitutes the tAventy-first assignment of err'or, Avas proper because the eAddence Avholly failed to show that the Louisville & Naslrville Railroad Company had negligently caused the death of plaintiff’s stock,,damages for Avhich are sought in this action, and there was therefore no proof in the case that there Avas any intervening, independent, responsible (culpable) cause for the death of the said stock, and the charge Avas therefore abstract. A rmstrong v. Ry. Go., 323 Ala. at 251; McKelvin v. London, 22 ()nt. Rep. 70; Pasten a v. Adams, 49 Cal. 87; Hughes r. McDonough, 43 N. J. L. 459.</p> <p>Further, this charge wholly pretermits consideration of the important qualification of the intervening cause doctrine, that the chain of causation is not broken if the intervening cause is one that might reasonably have been 'anticipated as the natural probable result of the original negligence — in other words was rather a consequence of the original cause, than a new and independent cause.— Thompson on Neg., p. 1089, See. 6; Watson on Dam. for Per. In j. supra; ¿V;. By. v. Webb, (Ga.) 59 L. It. A. 109; Malioya-iiy r. Ward, 16 It. I. 479.</p>

Heard before Hon. A. T). Sayre. Action for damages on account of an injury to a horse, by appellee against appellant.

Heard before Hon. Tilomas AY. Coleman, Jr. This is an action for tke loss of a package of manuscript delivered by plaintiff’s agent to the Southern Express Co., in Columbia, S. C., to be conveyed by express to plaintiff in Sumter, S. C. The complaint was in code form.

Chambers Circuit Court. Heard before Hon. S. L. Brewer. The complaint in this case is in the following language: “The plaintiff claims of the defendant, which is a corporation organized under the laws of the State of Alabama and doing business in Chambers county, the sum of fifty dollars ($50.00), for this, to-wit: That defendant was engaged in the operation by steam of a railway between the cities of West Point, Ga., and Montgomery, Ala., on and prior to January 1, 1903,…

Heard before Hon. A. D. Sayre. L. K. Boultier died leaving two wills, or at least two wills were produced after his death, one of date June 20, 1905, and one of July 17, 1905. The will of July 17 was filed for probate and on a contest was refused probate. • From this judgment refusing probate, an appeal was taken to the supreme court.

Heard before Hon. A. H. Alston. This was a petition addressed to the circuit court of Chilton county, seeking to require the judge of probate of Chilton county, as chairman of the commissioners’ court, and the commissioners’ court of said county, to pass upon and allow or refuse a claim presented to it by the Southern Railway Company for a sum of money alleged to have been overpaid as taxes by said railroad.

Heard before Hon. J. C. Richardson. Tlie nature of tlie proceedings and tlie facts connected therewith are sufficiently stated in the opinion of the court. , On Feb. 19, 1887, the-general assembly passed an act prohibiting the sale of liquors except in beat 12 in Butler county.- — Acts 1886-87, p. 395. On the 26th of Feb. 1887, the same legislature passed a general prohibition law for Butler co.unty.

Heard before Hon. Joseph H. Nathan. Applicatiou for mandamus by Permelia Stull Graham against the city of Tuscumbia and others to compel the levy of a tax to pay a judgment. From a judgment denying the application, the applicant appeals. Reversed and remanded. The case made by the bill is: That the city of Tuscumbia issued $2,500 worth of bonds as a subscription to the Deshler Institute, bearing G per cent interest.

Heard before Hon. TV. TV. Harax^kox. This was an application for mandamus filed by Smith agaiiist McCutchen, as judge of probate of .Jackson county, seeking to have said judge of probate compelled to issue to him a warrant upon the county treasury for The payment of certain claims against the. county. The facts are sufficiently stated in the opinion of the court.

Heard before I-1on. John P. Hubbard. This was an action by appellant against appellees for the conversion by them of 55 bushels of cotton seed upon which it is claimed appellant had a lien as landlord.

Heard, before 1-Ion. John Pelham. This ivas an action brought by Izella Heard against R. A. Crew and son and R. H. CreAV for §100.00 damages for taking a mule. H. Y. and W. F. Heard gave their notes secured by mortgage on the mule in question to one Gilliland who transferred the notes and mortgages to R. H. Crew. Sometime after the maturity of the mortgage, R. A. Crew and son got possession of the mule and sold it under the mortgage.

Heard before Hon. A. H. Alston.. S. J. Noleu sued J. B. Grimmer and Bird McKinney' for the 'conversion by them of certain cotton seed on which it is alleged he held a mortgage. The proof showed that Bird and another McKinney executed and delivered to Nolen a mortgage on certain crops to be grown that year. The mortgage was executed in the presence of two witnesses and signed by mark by the mortgagors.

Heard before IIon. Samuel B. Browne. Action by Charles Dickens against W. K. Syson Timber Co., for trespass in breaking a boom and taking certain logs therefrom. The facts are sufficiently stated in the opinion of the court.

Birmingham City Court. . Heard before Hon. C. W. Ferguson. Action by Sterling A. Wood and others against the West Pratt Coal Company. The appellants sued appellee in trover for the conversion of ten tons of railroad iron, called “T rads,” five iron tipples, ten tram cars, frogs, switches, and other material. There was also a second count in case for destroying plaintiff’s title and right to. use tlip. above property.

<p>Appeal from Marshall Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Action by J. AY. Gilbreath against AVill Stallings and others.</p> <p>This was an action against AYill Stallings upon his official bond as marshall and ex-officio constable for damages for the wrongful levy upon goods belonging to the plaintiff. E. O. McCord, and J. T.'Hamrick were made parties defendant as joint tort-feasors. The evdence necessary to an understanding of the opinion is sufficiently stated therein.</p> <p>The defendant requested the following written charges, which were refused: “(1) The court charges the jury that if they believe the evidence they cannot find the issues against defendant McCord on the court in trespass. (2) The court charges the jury that if they believe the evidence they cannot find the issues aganst defendant Hamrielc on the count in trespass. (8) The court charges the jury that if they believe the evidence they cannot find the issues against defendant McCord on the count in conversion. (4) The court charges the jury that if they believe the evidence they cannot find the issues against defendant Hamrick on the count in conversion. (5) The court charges the jury that if they believe the evidence they cannot find the issues in favor of the plaintiff on the count in conversion. (6) The court charges the jury that if they believe the evidence they cannot find the issues in favor of the plaintiff on the count in trespass. (7) The court charges the jury that, unless they are convinced to a reasonable certainty that all of the defendants and each of them are guilty of the wrong complained of, they must find the issues in favor of the defendants. (8) The court charges the jury that before they can, under the evidence, find the issues .in favor of the plaiutiff, they must be satisfied to a reasonable certainty that the defendants are jointly liable for the wrongs complained of in each count in the complaint. (9) The court charges the jury that if they find, under the evidence, that either or any of the defendants are not guilty of the wrong complained of, they must find the issues in favor of the defendants. (10) The court charges the jury that before they can, under the evidence, find a joint verdict in favor of the plaintiff and against the defendants, they must be reasonably satisfied, that the wrong's complained of were jointly committed.”</p> <p>The plaintiff requested the following written charges, which were given: “(1) The court charges that the law presumes that a person in possession of property .claiming it as his own is its owner, and any one who asserts the contrary must prove it by the evidence ‘which convinces the jury to a reasonable certainty. (2) If the property sued for was the property of the plaintiff, then the sale of the property after the filing of the claim of exemptions before the trial of the exemption claim would be conversion of the property by the officer and by all the others who aided, assisted, or encouraged the officer in making the sale. (8) The court charges the jury that if Biddle loaned Gilbreath $50, with the understanding that Gilbreath should pay hm one-half of the profits in place of interest, then this did not constitute a partnership, and in that event your verdict must be for the plaintiff, and his damages are the value of the property sued for, with interest clown to the time of the trial. (4) The court charges the jury that, if Hamrick instructed Rtallngs to sell the property after the fling of the claim of exemptions, then he was acting outside the duties of his office as justice of the peace, and, if the property sued for was the property of the plaintiff, then your verdict must be for the plaintiff against Mr. Hamrick. (5) The court charges the. jury that, unless the defendants have proven to a reasonable certainty that YY. S. Biddle was a partner with plaintiff, then you must find for the plaintiff. (6) If Stallings wrongfully converted the property sued for, then Hamrick would be equally liable if, when the replevy bond was given, he said to Stallings, Now you got a bond, so go ahead and sell the. goods,’ or words to that effect; and if, influenced thereby, Stallings went ahead and converted the plaintiff’s property by selling the same, then your verdict should be against Hamrick also. (7) The court charges the jury that if Gilbreath was in possession of the property sued for, claiming it as his own at the time of the levy, this is prima facie proof of his title; and if defendant insists that any one else owned said property, or any part thereof, or any interest therein, the burden is on the defendant to prove the fact to a reasonable certainty.”</p> <p>The insolvency of Gil-breath & Oo., W. D. Biddle and J.' W. Gilbreath should have, been permitted to go to the jury.' — Leffie.r v. Lehman Durr Co., 57 Ala. 533. Defendant McCord should have been permitted to testify as to the conversation had with Gilbreath. A client' cannot close his attorney's mouth as to conversations had with him when it is necessary to divulge such conversations, for the protection of such attorney or those for whom he deals. — -23 Am. & Eng. Ency. of Law, 2 Ed. 79; Nave v>. Baird, 12 Ind. 318; Koebcr c. Honiara, 108 TTis. 507; Jlitcheil v. Bamberger, 2 Nev. 345; Rochester v. Suydem, 5 How. 254. The evidence also tended to show that plaintiff and Biddle were engaged in the perpetration of a fraud, and the communication therefore was not privileged. — 29 S. W. 172 ; Hammel v. England, 50 Mo. 344; 23 A. & E. Ency. of Law, (2nd Ed.) 78. Counsel discussed other assignments as to the admission of testimony and as to charges, but cite no authorities.</p> <p>The court properly overruled the motion for a discontinuance. — Mack v. Walker, 42 Ala. 668; 2[astersdn v: Gibson-, 56 Ala. 56; Acklen r. Hickman , 63 Ala. 494. The court properly excluded McCord’s testimony as to a conversation between him and plaintiff. It was a privileged communication. —State r. Tally, 102 Ala. 25; 23 A. & E. Ency. of Law, (2nd Ed.) p. 63. The .sole issue in this case was upon the plea of not guilty. There was no plea of justification under legal process, and defendant- could not be heard to dispute-plaintiff’s title. — Wamick v. Bird, 51 Ala. 504; Stephenson v. Wright, 111 Ala. 586; Terry v. Brown, 34 Ala. 159. The defendant as a specially appointed constable was without authority to levy and execute process and he and all those connected with him were trespassers. — Code 1896, § 978; Stephenson■ -c. Wright, supra. The acceptance of the bond rendered them trespassers also. — Gay v. Burgess, 59 Ala. 575; Thorn r. Gamp, 98 Ala. 423. Disregarding . the claim of exemption and selling the property rendered them all trespassers. — Kennedy v. Smith, 99 Ala. 83; Milligan v. Gox, 108 Ala. 497; Straughn v. Richardson, 121 Ala. 611. The charges given at the request of,the plaintiff were proper. — Arm-stead v. Thompson, 91 Ala. 130; Pulliam v. Hclwnpf, 100 Ala. 362; Craig v. Burnett, 32 Ala. 728; Duckworth v. Johnson, 7 Ala. 578.</p>

Heard before Hon. D. W. Speake. The complaint in this case was -in the following language: “Plaintiff claims of the defendants $500 damages for the conversion by them between the months of November, 1901, and September, 1902, of the following chattels, to-wit: 1,130 bales of cotton seed hulls, of the average weight of 66 2-3 pounds, the property of plaintiff: The defendant interposed the general issue and the following special pleas: “(2) The defendants for plea allege that…

Heard before Hon..A. A. Coleman. . Action by Jule L. Oden and others against the Birmingham Hail way, Light & Power Company.

Heard before Hox. Charles A. Hexx. Action by Daniels against Ebersole. The nature and character of the action together with the facts in the case are sufficiently stated in the opinion of the court. Defendant having proven his plea, was entitled to verdict. — Medies v. Reynolds, 117 Ala. 413; Gerald, v. Tun stall, 109 Ala. 567.

Heard before Hox. John T. Lacklaxd. Action N. (.t. Davis*, as surviving partner, against H. C. Walston. This was an action upon a hote given by appellant to appellee. The plea was payment. The controverted question was whether or not the note had been paid, and the main dispute between the parties was as to certain words in a receipt.

Heard before Hon. J. A. Bidbro. Action by tbe Alabama National Bank against C. C. Parker & Co. Tbis was a suit upon four promissory notes given to tbe Helm Bone Fertilizer Company by C. C. Parker & Co., negotiable and payable at tbe First National Bank of Gadsden, Ala., and before maturity sold to tbe Alabama Nátional Bank.

Heard before Hon. IT. A. Pearce. Action by Porter & Co. v. Loeb. The facts on which the opinion was rested sufficiently appear therein. Counsel discussed matter raised by assignment of errors, but does not discuss the point on which the case is determined. The court cannot consider the hill of exceptions for any purpose.- — Zion r. Folleos, 182 Ala. 609; Crawford v. Cra,u> ford, 119 Ala. 84; Jasper r. O'Roar, 112 Ala. 247.

Heard before Hon. S. L. Brewer. Action in assumpsit by Hayes, Henson & Co., against 1). Vi. Baker. The facts are sufficiently stated in the opinion. The court erred in admitting the testimony of Jackson as to an offer by defendant to pay $85.00 in full settlement of the claim.— Matthews v. Farrell, 140 Ala. 298; Gibbs v. JVrigM, 14 Ala. 4(57.

Appeal, from Lauderdale Circuit Court. Heard before Hon. E. I?. Almon. This was an action brought by Bacon as trustee; of the bankrupt firm of J. A. McKinney & Co., to recover of the Merchants Bank of Florence $650, alleged to have been paid as a preference to said bank. The facts are sufficiently stated in the opinion of the court.

Heard before Hon. Charles W. Ferguson. Action by J. D. Crosthwaite v. Lewis Lebus, to recover commissions for an alleged sale of real estate.- The pleadings and the facts are sufficiently stated in the. opinion.

Heard before Hon. C. W. Ferguson. This was au action begun by Higgins Mfg. Co., against B. H. Pearson to recover the sum of $250. The complaint contained the common counts and a special count setting out a contract and declaring on a breach of it. The pleas were the general issue and as to the sixth count the plea of non out factum. The facts are sufficiently stated in the opinion of the court.

Heard before Hon. Charles TV. Ferofsox. This action was begun by attachment at the suit of Mary J. Thomas doing business under the name and style of Madame Demans against Annie Thomas, alleged to be Mrs. R. Y. Thomas, and sought recovery in damages for the. failure on part of the def(aidant to take the goods mentioned in a certain contract hereinafter set out, and the refusal of the defendant to pay the rent of certain store house for the month of March.

Ann-iAL from Coffee Circuit Court. Heard before llox. John I\ Hubbard. This was au action begun by Maddox & Hons to recover freight overcharges upon certain machinery which, it is alleged they were, required to pay before the railroad would deliver the freight. The witness Smith, answering an interrogatory, said: “I am the treasurer of the Continental Grin Company, and was such on the 9th day of September, 1901. [Maddox & Sons purchased a gin outfit from said gin company.

Heard before Hon. S. L. Brewer. The complaint is in the following language: “Plaintiff claims of the defendant $875.00, with interest thereon, damages for the breach of an agreement entered into by the defendant on the 15th day of August, 1902, a copy of which is hereto attached, marked ‘Exhibit A/ and made a part hereof.

Heard before Hon. Samuel B. Browne. This was an action by J. D. Torrey, as assignee of a note executed by one 1). Ivraus. The facts and the pleadings are sufficiently shown in the opinion.

Appear from Houston Circuit Court. Hoard before Hon. Terry Richardson, Special Judge. Action by Hilton & Bentley against J. AY. Taylor, administrator of AY. T. Taylor, deceased. ITilton & Bentley had a contract with \V. T. Taylor whereby Taylor sold them the timber on certain lands out of which to cut cross-ties, for which they paid Taylor at the time of the execution of the contract the sum of $800.

Heard before Hon. H. A. Píoarge. Tliis was an action begun by attachment at the instance of appellee on certain notes executed by appellant to appellee covering the sales Of fertilizer. The complaint contained several counts declaring on the notes and other counts on the common counts.

Heard before Hon. J. C. Richardson. Action by the Cleveland School Furniture Company against the city of Greenville. This was an action on a promissorw note for the sum of $790, executed by defendant on the 10th day of July, 1896, due and payable five years after date, -with interest payable annually from the 7th day of January, 1895.

Heard before Hon. W. S. Anderson. Action by Allen P. Howison against J. D. Elliott. The complaint, in this cause was in the following language: “(1) Plaintiff, claims of the defendant $1,200 due from him by account on the 1st day of September, 1900.

Heard before Hon. J. W-. Mabry. Action by Samuel Will John against Dallas county. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear in the' opinion of the court. A county in Alabama is a corporation with the power to sue and be sued, and assumpsit will lie against it even on an implied promise. — 1 Dillon Mun.

Heard before Hon. Samuel B. Browne. Action by Ellen P. St. Jolm against John R. Tomkpins in which David. S. Nathan was made garnishee. The facts are stated' in the opinion of the court. Prom a judgment against garnishee, he appeals.

Petition for certiorari to Supreme Court. Certiorari by the. National Lumber Manufacturing Company to review a judgment against it as garnishee in a cause wherein the_ Dixie Grain Company was plaintiff and the Powe Logging Company defendant.

Heard before Hon. A. A. Coleman. Action'by R. E. Collins against the Pacific Selling-Company, in which the W. L. Murdock Brokerage Corm pany ivas garnished. Held: that where a judgment in such proceedings is relied upon by the garnishee, in defense of subsequent liability to tlie defendant, th’e facts necessary to the jurisdiction of the court must appear on the face of the proceedings. — 14 Am. & Eng. Enc. Law, 885; Gunn v. Howell, 27 Ala. 663; lb., 62 Am.

Heard before I-Ion. H. A. Pearce. Action by Mayfield Woolen Mills against L. H. Morris, in which the First Bank of Elba was made garnishee. From a judgment for plaintiff against the garnishee, it appeals. In garnishment proceedings, the court is authorized to try contested issues of fact without a jury. — § 2196, code 1896.

Heard before Hon. Charles A. Senn. Bill by Peter Sehlicher against W. D. Aiken and others, in which James Riordan intervened and claims a fund disclosed by the answer of the garnishee, James E. Webb. From a decree awarding the fund to plaintiff, intervener appeals. The secured creditor had no legal or equitable right to property conveyed to the trustee. He had only a right to enforce the collection of the debt.

Heard before 1-Ion. II. A. Pearce. Action of attachment begun by Jones v. Baxter. The facts are fully set out in the opinion of the court. Prom a judgment for defendant, plaintiff appeals.

W. W. Haralson. Attachment proceedings by L. P. Nearen against W. T. Lawson. From a judgment granting a motion to set aside a sale under the attachment, in which Thomas L. Farrow ivas substituted for defendant as sole movant, plaintiff appeals. The facts are stated in the opinion. Striking out Lawson’s name and inserting Farrow’s worked an entire change of parties, and operated as a discontinuance of the motion.

Apppeai. from Limestone Chancery Court. Heard before Hon. W. H. Simpson. William F. Daily and William T. Bailes file their bill seeking to partition certain land among the joint owners thereof.

<p>Appeal from Marshall Prohate Court.</p> <p>Heard before Hon. J. H. Carter.</p> <p>This was a petition addressed to the judge of probate by the Colbey Hinlcley CO'., seeking partition of a lot of logs alleged to belong equally to the corporation and . one Jordan. It is averred in said petition that the logs consist of numerous and divers sizes and conditions amoun cing to about one-hundred thousand feet of timber, and that on account of the numerous and varying sizes of the logs, they cannot be equitably divided. Upon the trial, the court denied the relief sought and dismissed the petition.</p> <p>Under the facts in this case, the parties thereto were joint owners of the logs. In so far as the contract had become executed, it was an irrevocable license. — Giles v. Simons, 77 Am. Dec. 373 and note. The defendant by his conduct in giving license to cut the timber and having it scaled with full knowledge of all the facts, estopped himself to deny petitioners title to the timber. — 16 Cyc. 785, note 72. The contract was not an entire contract, and was not a contract at all except as it was performed.' — 9 Cyc. 643.</p> <p>The contract was entire under the facts in this case necessitating full performance by appellant before a legal title to half interest in the logs vested in them. — Fail v. McCrea, 36 Ala. 61; McDonald v. Bryan, 40 N. W. 665; William v. Gay, 80 N. W. 450; Lee v. Briggs, 58 N. W. 477; 9 Cyc. 641-645; 7 A. & E. Ency. of Law, pp. 97, 145. If appellants had any right it cannot -be enforced here. The probate court is without authority to determine complicated question of law and fact respecting title. — Gilford v. Madden, 45 Ala. 290; Wilkinson v. Stewart, 74 Ala. 198. Partition cannot be resorted to by piece meal. — Wilkinson v. Steiraid, supra.</p>

Heard before I-Ion. W. W. Whiteside. This was a bill by Scliuessler, as executor of the estate of H. H. Brown, deceased, against the other tenants in common for tlie sale of real estate. Tlie facts sufficiently appear in tlie opinion of tlie court. Tlie chancellor held that the hill- was without equity, and dismissed it in vacation.

Heard before 1-Ion. G. J. Sorrell. Petition by T. S. Herren against the other heirs at law and devices of Janies Vaughn for the partition of certain property described therein. The facts and pleadings sufficiently appear in the opinion of the court. From a decree granting the prayer of the petition, this appeal is prosecuted. In partition suits in the probate court the evidence must be taken as in chancery cases. — Code, § 3.181.

Heard before Hon. W. L. Pratt. Fiucb wlio owned a one-twelfth interest in certain land filed a petition in the probate court to have the same sold for partition, on the ground that the same could not be equitably divided or partitioned except by sale. It appears from the petition that upon all this land was a lease with ten years yet to run providing for the taking of all the coal on the land and the payment therefor in royalty.

Hoard before Hon. John H. Bisque. This is an action for slander commenced by I. B. Crump against Fitzlvugh Lee, the facts of which are set out in the opinion. The complaint contains three counts. In the first count, the libelous words imputed are, “You stole my cabbage,” viz,, on about the 15th of December. The libelous words in the second count are, “Id Crump stole my cabbage” (same date as above).

Heard before Hon. A. D. Sayre. This was an action for damages for fraud in obtaining a deed begun by J. P. Coan against Henry C. Jones. The facts are stated in the opinion of the court. From a judgment for plaintiff, the defendant appeals.

Heard before IIon. O. Kyle. This was an action by appellee, as next friend of Susie Dyer, against appellant, in malicious prosecution. The suit was commenced in justice court, and the cause appeared there on the docket as “A. J. Dyer v. W. M. Rutherford.” Judgment was rendered against the defendant in the justice court, and taken by him by appeal to the circuit court, where a complaint was filed by A. J. Dyer, as next friend of Susie Dyer, against William Rutherford.

Heard before Hon. A. H. Alston. This was an action brought by‘the appellee against appellant for malicious prosecution and false imprison-, ment. Counts 1 and 2 are laid for malicious prosecution; count 3 for false imprisonment. The court permitted the affidavit and warrant by which prosecution was begun against appellee to'be introduced in evidence over the objection of appellant.

<p>Appeal from Etowah Chancery Court..</p> <p>Heard before Hon. W. W. Whiteside.</p>