Volume 147 — Alabama Reports

Heard before Hon. Joseph H. Nathan. The defendant was indicted, tried, and convicted of assault with intent to murder Oscar Thornton. The evidence tended to show that defendant shot Thornton with a pistol in a difficulty growing up out of the fact that de-' fendant had run away with Thornton’s sister and married her.

Heard, before the Hon Ó. J. Semmes. The defendant was indicted, tried, and convicted for assaulting one Blalock, with a pistol with the- intent to murder him. The evidence tended to show that Clarence Blalock was shot by defendant about November 1, 1904; that there were three pistol wounds, one near the knee, one in the shoulder, and one near the spine, in the hack, opposite the tenth back bone.

Heard before Hon. D. W. Speaks. The defendant was indicted, tried and convicted for the murder of R. L. Hipp. The indictment was preferred and the trial had at a special term of the Cullman circuit court held by order of the presiding judge of the Eighth judicial circuit. The killing is alleged to have occurred on the 11th day of April, and the order for the special term was made the 18th day of April, 1905, calling ¡-he special term to convene on May 22,1905.

Heard before I-Ion. John Pelham. Tbe defendant and Barney Wortbey Avere jointly indicted for killing Tom Waldrop by shooting Mm Avith a gun or pistol. The present defendant demanded a severance, and was tried alone. When the case -was called at a former term of the court motion Avas made to quash the special venire.

Heard before I-Tox. B. M. Miller. The defendant was indicted with Henry Duncan for the murder of Alien Fuller by shooting him with a gun. A severance was demanded by this defendant, and he Was put upon his trial, convicted, and sentenced to the penitentiary for life.

<p> Murder. </p> <p>1. Homicide; Evidence; Sufficiency. In a difficulty between defendant and deceased immediately before the killing, defendant secured deceased’s pistol and shot him while he was retreating; Held, defendant was guilty of some degree of homicide.</p> <p>2. Criminal La.u>; Trial; Instruction; Misleading. — There being other evidence from which the jury was authorized to return a verdict of guilt, a charge which asserts that if the testimony of a named witness, or any part thereof, was wilfully false, the jury could disregard it and find accused not guilty, was misleading and properly refused.</p> <p>3. Same; Argumentative Instructions. — An instruction directing the jury that they may look to the fact that the pistol used in killing deceased was deceased’s pistol and not defendant’s in fixing the grade of the homicide, was properly refused as being-argumentative.</p> <p>4. Same; Instruction as to Duty of Jurors; Reasonable Doubt.— A charge requiring an acquittal if either or any one of the jury have a reasonable doubt of the defendant’s guilt, is erroneous as requiring a verdict upon the belief of one juror.</p> <p>5. Homicide; Instructions; Self .Defense; Omission of Evidence. — A charge requiring an acquittal if the jury believe that at the time the fatal shot was fired defendant acted upon the honest belief that ho was in danger of life or great bodily harm at ithe hands of the deceased, was properly refused as omitting all reference to defendant’s freedom from fault in bringing on the difficulty.</p>

Heard before Hon. H. P. Merritt, Special Judge. The indictment in this case charges defendant with killing Frank Fort by striking him with an instrument to the grand jury unknown, and the second count charges the killing by means unknown to- the grand jury. The indictment was preferred by Hon. 8. L. Brewer, who was solicitor of the circuit, and the cause was called for trial after his election as judge of the circuit, and II.

Heard before Hon. W. H. Thomas., J. D. Glass was convicted of murder, and appeals. Nearly all the facts necessary to a proper understanding of the case appear in the opinion. The witness Knight was permitted to testify over the objection of the defendant that he saw the defendant and Bedsole about an hour and a half before the difficulty over-at the new mill, and that Glass said in Bedsole’s presence that they were going over to Milner’s house and dance, or break it up.

Heard before Hon. D. W. Speake. The defendant was indicted for the murder of His wife, Murzy Parham, convicted of murder in the second degree and sentenced to the penitentiary for 20 years. It does not appear from the record what the difference between the copy of the indictment served on defendant and the original indictment consisted in.

Heard before Hon. D. A. Greene. Tbe defendant was indicted, tried and convicted for killing Bert Pesnell by cutting bim or stabbing him with a knife. The facts in reference to the motions and. demurrers sufficiently appear in the opinion, except as to the seventh, eighth, ninth, tenth, eleventh, and twelfth ground for the motion and arrest of judgment, whh-h were as follows: “ (7) That the jury trying the defendant was not selected from the lawful venire.

Heard before Hon. H. A. Pearce. The defendant, Abb Hammond, was indicted, tried, and convicted of killing Bud Tucker by shooting him with a gun.

Heard before Hon. J. C. Richardson. Jolm Dixon was convicted of incest, and. appeals. The facts sufficiently appear in the opinion. The indictment is not sufficient. A girl is not a woman. A woman is a female past age of puberty. — Words & Phrases, Yol. 8, p. 7513; Blackburn v. Mtate, 28 Ohio St. 110. Incest is of purely statutory origin. — 10 A. & E. Ency. Law, p. 335.

Heard before 1-Ion. H. A. Pearce. The evidence tended to show that accused and prosecutrix were engaged, and had been engaged for some time before the alleged act of intercourse was bad, and that consent was obtained by means of promise of marriage. Prosecutrix stated that she did not consent to the act, but that defendant took her in his arms, and without her consent and against her will and by force had intercourse with her.

<p> Grand Larceny. </p> <p>1. Criminal Laio; Evidence; Res Gestae; Other Offenses Part of Same Transaction. — The defendant being indicted for the larceny of a locket, it was competent to show that defendant was in prosecutrix room and remained there while prosecutrix was out, and that on her return defendant was gone and prosecutrix pocket hook containing the locket and some money was missing, it all being part of .the same transaction.</p> <p>2. Same; Subsequent Incriminating Circumstances; Intent to Escape. — It was proper to admit in evidence that portion of defendant’s letter to his mother in which he said, in effect, that they intended to send him to the penitentiary, but it would not be done, as he intended to break jail, as affording an inference that it was inspired hy consciousness of guilt.</p>

Heard before Hon. D. W. Speake. Defendant was tried and convicted of burglary. The facts are sufficiently stated in the opinion of the court. The court erred in not excluding all the evidence in reference to trailing defendant with bloodhounds. — Hodge v. State, 98 Ala. 10 ¡Pedigo v. Commonwealth, 42 L. R. A. 432. The court erred in refusing to give the general affirmative charge requested by appellant. — -Authorities, supra. (No brief came to the Reporter.)

Heard before Hon. B. M. Miller. The defendant was tried and convicted for burglarizing the depot of the Southern Railway. The facts are sufficiently stated in the opinion of the court. It is a familiar principle that if an indictment is unnecessarily particular in its averments the averments which are unnecessary must be proven as well as any other allegation. — A. & E. Ency. Law, p. 558.

Heard before Hon. A. H. Alston. Tbe judgment of tbe court is as follows: “April 18, 1906. On tbis day came W. B. Bolling, solicitor of tbe Fifth judicial circuit of Alabama, and also comes tbe defendant in bis own proper person and by bis attorney, and being arraigned upon said indictment and for bis plea thereto tbe defendant says that be is not guilty.

Heard before Hon. Thomas L. Sowell. The indictment in this case charged that Lula Hamilton and Letha White feloniously took and carried away certain money, the personal property of J. Y. Ledbetter.

Heard before Hon. T. A. Johnson. The defendant was tried and convicted of burglary from a railroad car. The facts are stated in the ojinion. Counsel discussed the proper construction of the various acts in reference to the removal of the court from Edwardsville to Heflin but cite no authorities. There is a fatal variance between the proof and the allegation as to the ownership of the car alleged to have been broken. — Johnson v. State, 98 Ala. 57.

Heard before Hon. A. A. Evans. This was a charge of betting or playing a game of cards in .a public place. The defendant requested the following written charges, which were refused by the court: “(1) The jury must not convict because the defendant could be seen from the road.

Heard before Hon. J. C. Kumpe. The defendant was tried and convicted for playing a game of cards or dice in a public place. The facts are sufficiently stated in the opinion of the court. (No brief came to the Reporter.) (No brief came to the Reporter.)

Heard before Hon. W. W. Haralson. Defendant was indicted and tried for selling or trading a horse commonly called a “choker.” The pleadings and the facts of the case are sufficiently stated in the opinion of the court. The statute under which this indictment is drawn is unconstitutional. — DeArman v. State, 34 Ala. 239.

Heard before Hon. Wm. Jackson. The prosecution was begun by warrant and affidavit. The facts sufficiently appear in the opinion. The court in its oral charge said : “Evidence upon the part of the state shows defendant on the 8th day of August passing along on the property of Vandeford.” There, was objection to this statement.

Arpead from Hale County Court. Heard, before Hon. W. C. Christian. Defendant was tried and convicted for failure to work the roads. Defense endeavored to be interposed by the defendant was that he lived in the town of Greensboro, and had paid street tax to said town for the year ending March 1, 1906.

. Heard before Hon. W. C. Christian. Defendant was indicted, tried and convicted for the offense of failing to work the public roads. The testimony showed that in 1902 and 1903 the defendant was apportioned to a certain road. The solicitor was permitted to ask the witness over the objection of defendant, “did you in Nov. 1902, warn the defendant to work the public road.

Dale Circuit Court. Heard before Hon. A. A. Evans. Tbe defendant was indicted and. tried for unlawfully or wantonly killing, disfiguring, or disabling a bog, tbe property of another, of the value of $15.

Heard before Hon. W. T. Lawler. The defendant was indicted at the February term, 1905, of the Madison Circuit court for disturbing an an assemblage of people met for a religious worship. The case was returnable to the county court of said Madison county and was tried.

Heard before Hon. William Jackson. ..The defendant was convicted of retailing without a license. Trial was had on the following agreed statements of facts: That one D. B. Wilkins and Will Lynch, the defendant in the case, paid for and procured a license, both state and county, to carry on business as retail liquor dealers in the city of Bessemer, Jefferson county, Ala.

Circuit Court. Heard before IXon. W. W. Haralson. The state was permitted to prove, over the objection of defendant, that at the time of the carrying, the defendant was drunk or under the influence of whiskey. The state was also allowed to prove that Sam Hainey and the defendant were brothers, and that Sam Hainey was drunk also, and that the defendant stopped the marshal and his assistant while in the discharge of their duty in carrying Sam Hainey, under arrest, to town.

Héard before Hon. A. P. Longshore. The defendant was convicted of selling liquor witlio at license. The facts sufficiently appear in the opinion of tbe court. In support of the position taken that the court was without authority to substitute an affidavit for the lost affidavit, we cite the following cases. — Gtttnaway v. State, 22 Ala. 773; Bradford v. State, 54 Ala. 23d; § 4919-4392, code 189G; § 4920, code 1896. The warrant was functus officio.

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. S. L. Weaver.</p> <p>Habeas corpus proceedings by Charles Ossie. From an order denying discharge, petitioner appeals.</p> <p>Habeas corpus is the remedy to procure the discharge of a citizen illegally restrained. — §§ 4812, 4884, 4838 and 4839, code, 1896; Ex parte McKivitt, 55 Ala. 238; Simmons v. Ga. I. & C. Co., 61 L. R. A. 739.</p> <p>The action of the hoard of revenue and road commissioners of Mobile county in awarding the contract under which appellant was held, was null and void. — Wight-man v. Karsner, 20 Ala. 446; Cullom v. Casey, 1 Ala. 351; Davis v. State, 46 Ala. 80; Carlic v. Dunn, 42 Ala. 404; Ex parte Branch Bank, 63 Ala. 383; Jackson v. State, 102 Ala. 76; Birmingham B. & L. Asso. v. State, 120 Ala. 408; Boynton v. Wilson, 46 Ala. 501.</p> <p>The corporation must show a legal contract with Mobile county for the hire of its convicts, and the records of the commissioners’ court must show jurisdiction affirmatively. — §§ 4435, 4521, code 1896; Ex parte Short-ridge, 115 Ala. 126; Commissioner’s Court v. Hearne, 59 Ala. 471; Cramhlee v. Cole, 128 Ala. 649. It, therefore, became necessary to show that the contract was made at a term authorized by law. — -Authorities supra. Under the authority given Holcombe as shown by the record, he could not execute this contract. — •§ 4535, code 1896; Ex parte Shortridge, supra; Ex parte Haralson, 123 Ala. 89. The bond which the corporation failed to give was for the purpose of protecting the convict against inhuman treatment. — Jefferson Co. v. Truss, 85 Ala. 486; Arrington v. Morgan, 75 Ala. 606. The judge of probate may, if the bond is insufficient, or if any convict is treated cruelly, or. inhumanely, terminate the contract.— Jeff. Co. v. Truss, supra. — § 4525, code 1896.</p> <p>The judge properly overruled the motion to- quash the petition. — §§ 4827,- 4828, 4829, 4832, code, 1896 ;Ex parte Jones, 94 Ala. 33; Ex parte Charleston, 107, Ala. 488; Grooms v. Shad, 40 So. Rep. 497. The court erred in quashing tlie answer filed by appellant to the return of the corporation. — § 4832; Groom v. Shad, supra; Simmons v. Ga. C. & I. Co.</p> <p>The minutes of the board of revenue are the sole expositor of its action, and the court erred in admitting Perkin’s testimony. — Crenshaw Co. v. Sykes, 113. Ala. 626.</p> <p>The act of hiring county convicts is purely administrative, and since Sec. 4594 lias been repealed, what was said in the causes of Ex parte White, 81 Ala. 80, and Ex parte Shortridge, 115 Ala. 12(5, is not applicable. — Haralson o. State, 123 Ala. 89. The directions of the statute as to the times of the meeting of the board of revenue are directory merely, and whether held on that day or not, is immaterial.— State Auditor v. Jackson Go., 65 Ala. 142; Perry Co, v. Railroad Go., 65 Ala. 391.. The county may waive the execution of a bond without in any way affecting the interest of the convicts. — Ex parte White, supra; Ex parte Haralson, supra. The contract can only be annulled by a certain person and upon certain contingencies, and the governor alone has authority to annuli it. — 26 A. & E. Éncy. of Law, pp. 604-5, 640-645-671; Jeff. Go. v. Truss, S5 Ala. 486. The convict is not entitled to relief by reason of the certificate of the probate judge in respect to the insufficiency of the bond. — Jeff. Go. v. Truss, supra.</p>

Heard before Hon. F. M. Tankersley. Habeas corpus on petition of Walton Sikes. From an order granting'bail, tlie state appeals. The facts touching the appeal and- the signing of the bill of exceptions are stated in the opinion of the court. No brief came to the reporter. Neither the judgment entry or the bill of exceptions show an exception reserved to the ruling of the court in allowing bail, and the presumption is that none was taken.

Heard before Hon. D. A. Greene. Habeas corpus by Richard H. Wray to obtain his discharge from imprisonment on hail. From an order denying bail, petitioner appeals.

<p> Habeas Corpus. </p> <p>1. Habeas Corpus; Jurisdiction. — The chancellor of the Northeastern Chancery Division, embracing the county of Ehuore, has jurisdiction to try, and a petition for habeas corpus for one in prison in the penitentiary in Elmore County, is properly addressed to such chancellor, under Section 4317 of the Code of 1896.</p> <p>2. Same; Return of Writ; Where Returnable. — Where a habeas corpus writ was granted by the Chancellor of the Northeastern Chancery Division, embracing the County of Elmore, pud the writ was granted more than ten days before the time fixed by law for the holding of the circuit court in said County, the writ was properly made returnable before the Chancellor, and he had power to make it returnable to him at Anniston in another County.</p> <p>3. Same Appeal; Certification of Transcript. — Whore writ of habeas corpus was returnable before the Chancellor of the Northeastern Chancery Division, at. Anniston, the cause was peuding in the Chancery Court of Calhoun County, if pend-lug anywhere, and. a record certified on appeadl by the Register ir Chancery of that Court, and by the Chancellor, is sufficiently certified. ,</p> <p>4. Cauris; County Court; Establishment; Validity of Statue. — The fact that the act creating the County Court of Cleburne County (Acts 1896-7, p. 802) confers on said court the same jurisdiction and powers of the circuit court, does not render the same unconstitutional.</p> <p>5. Habeas Corpus; Questions Determinable. — The defendant cannot complain that Section 31, Acts 1896-7, was violative of the constitutional provision and that the prosecution against him was not properly before the County Court, although no order was made by the Circuit Court transferring the cause to the County Court, but the cause was placed on the docket of the County Court, where the defendant and the solicitor agreed upon an attorney as special judge to try the cause in the County Court, and defendant pleaded to the indictment and was convictetd and appealed to the Supreme Court where the judgment was affirmed.</p>

<p>Appeal from Jackson Chancery Court.</p> <p>Heard before Hon. W. H. Simpson.</p> <p>The bill was filed by V. D. Ladd to enjoin the foreclosure of a mortgage executed to one Sliamotulski, and by him transferred to the Lookout Mountain Distilling Company. The allegations are that the mortgage is fully paid; and if not paid, a reference is asked to ascertain the amount due. The respondents filed a cross bill denying payment and asking- that the mortgage he foreclosed by a decree and order of the chancery court. The facts are sufficiently stated in the opinion of the court. From a decree dismissing the original bill and a decree and order foreclosing under the cross bill this appeal is prosecuted.</p>

Heard before Hon. J. C. Carmichael. Bill by C. I). Ebersole v. So. B. & L. Asso., the purposes of which and the facts concerning which are sufficiently stated in the opinion of the court. The chancellor rendered a decree dismissing the bill from which this appeal is taken.

Heard before Hon. W. H. Simpson. This was a bill filed by Thomas L. Farrow against Sam Gilbreath, Sallie Gilbreath, wife of Sam Gilbreath, and G. H. Pounds, seeking to foreclose certain mortgages executed by Gilbreath and wife to complainant- and others and by such others transferred to complainant. Pounds answered admitting the allegations of the bill.

Heard before Hon. A. IT. Benners. Bill by John Vary against R. D. Smith seeking to foreclose a mortgage on certain real estate named in. the bill. The facts-made by the bill are that Smith was indebted to the Birmingham National Bank, and. to secure the same executed a certain mortgage made an exhibit to the bill. Certain deeds referred to in the. mortgage in describing the lands are also made exhibits to the bill.

- Heard before Hon. A. H. Benners. Bill by J. M. Thomas v. C. A. Tilly,, et al., to establish the transfer of a mortgage and to foreclose the same. The facts are sufficiently stated in the opinion of the court. Declarations of an alleged donor of an intent!on to give are admissible as tending to establish the gift.

Heard before Hon. C. W. Ferguson. Action by William G. Berkley against the United States. Savings & Loan Company. From a judgment in favor of defendant, plaintiff appeals.

<p> Decree on Dermt/rrers to Bill. </p> <p>1. Appeal; Right of Appeal; Decision Favorable lo Appellant. — A decree sustaining demurrers to a bill, will not support an appeal by respondent to review the reasons given by the chancellor, who sustained certain grounds of demurrer and overruled others, as to the grounds of demurrer overruled, for it is a decree sustaining demurrer, and therefore favorable' to appellant.</p>

Heard before 1-Ion. W. W. Whiteside. Bill by Julia A. Thomas to enforce the collection of a sum of money collected by Livingston as pent for the previous year. The facts sufficiently appear in the opinion of the court. For a full treatment of the question presented by this appeal, we refer to: 2 Jones on Mortgages, Ohapt. 23, Sec. 1114, etseq. A court of equity wall not take jurisdiction if there is a clear, complete and adequate remedy at law.

Heard before Hon. W. L. Parks. Bill by Falkenberry against Tolbert, et al., to redeem land or for a sale of same free from encumbrance on part of claims of respondents. The facts on which relief is sought, the allegations of the bill and the questions raised on demurrer thereto are sufficiently stated in the opinion of the court. The right to establish a materialmans lien is dependent upon the statute. — Globe I. R. & O. Go. v. Thatcher, 87 Ala. 465.

Heard before Hon. A. H. Benners. This was a bill filed by the transferee of the mortgage in a mortgage executed by guardian for a non compos, and sought to reform the mortgage so as to make it convey the property intended thereby to be conveyed originally. The allegations of the bill and its purpose are sufficiently stated ■ in the opinion.

Heard before Hon. Thomas H. Smith. This was a bill filed by E. F. Bouchelle to establish the boundary line between certain lands described in the bill. C. O. Hayes ivas made the party respondent and demurred to the bill, and from a decree overruling the demurrers this appeal is prosecuted. The facts are sufficiently stated in the opinion of the court.

Heard before Host. W. W. Whiteside. Bill by James R. Lawrence as administrator v. John H.. Reynolds, et als., to restrain waste by cutting timber upon certain lands and to enforce a vendor’s lien on certain lands described. There was a decree for complainant from which this appeal was prosecuted. The facts are sufficiently stated in the opinion of the court.

Heard before Hox. W. W. Whiteside. This was a bill filed by appellee against appellant' Yarbr After answering the original bill in detail, the defendant interposed certain grounds of demurrer thereto: “ (1) Because there is no allegation in any paragraph of said bill showing that Bingham did not have a good title to the 102 acres of land alleged to have been in the possession of other persons.

Heard before Hon. W. L. Parks. The bill in this case was filed by the appellee, the Deposit Bank of Frankfort, a corporation of the state of Kentucky, against the appellant, W. P. McGaugh. On the 18th of August, 1898, the complainant, which will he referred to as the “Bank,” obtained a judgment in the circuit court of Lowndes county for $1,068.21 against. A. E. Caffee, besides costs of suit.

Heard before Hox. A. II. Benners. Appellant filed his bill against Catharine Guyllou, A. G. Wheeler, and M. F. Wheeler, seeking to enjoin a suit in ejectment begun by Guyllou for the recovery of a certrain lot of land and to corrct the description in his deed. Demurrers were interposed raising the question of multifariousness and motion was made to dismiss- the bill on the same grounds. From a decree sustaining the motion and demurrers this appeal is prosecuted.

Heard before Hon. W. H. Simpson: W. K. 1 Vail ace filed this bill against Elizabeth Mark-' ham, et als., as the heirs of John Petit, deceased, to enjoin an ejectment suit and to declare an instrument an equitable moibgage. The facts sufficiently appear in the opinion of the court. There was decree for complainant and respondents appeal. Under the allegations of the bill the execution lien attached on Nov. 19, 1881. — §§ 3181 and 3210, code 1876.

Heard before Hon. A. D. Sayre. This was a bill filed by H. Levystein as trustee against the firm of Gerson, Seligman ae Co., seeking to have a mortgag'e declared fraudulent and void. The facts necessary to an understanding of the opinion sufficiently appear therein.

Heard before Hon. W. I-I. Simpson. Bill by Robert J. Funkhouser, et al., to declare a deed a trust, deed and to terminate the trust. The facts are sufficiently stated in the opinion of the court. From a decree retaining the temporary injunction and declining to dismiss ihe bill, this appeal is prosecuted. Under the allegations of the amended bill the trust, if it existed, rested in parol. It must be shown by parol evidence.

Heard before Hon. W. W. Whiteside. This was a bill filed by appellee, seeking to redeem the mineral interests in certain lands therein described. The allegation of his right to redeem is based upon a purchase of the mineral interest in the land from the Moore & Hadley Hardware Company, who acquired title through a sheriff’s sale under a judgment obtained against one Leo Levi.

Heard before Hon. Thomas- I-I. Smith. The bill in this case was filed by Charles G. Miller and C. T. Rogers, as complainants, against the A. J. Cranor Company, Limited, the Russell Lumber Company, Limited, and John Jackson, seeking icy avoid a contract-made between these parties and to have property rights in certain machinery and timber land restored to complainants.

Heard before Hon. H. B. Foster. This is -a bill filed by the Pensacola A. & W. Railway Co., of Ála., v. Big Sandy Iron Co., et al., to enjoin certain prosecution and threaten prosecution of complainant’s -agents and servants. The transcript fails to show the organization of the court trying the cause, and upon this fact the opinion is rested.

Heard before Hon. Thomas II. Smith. This bill was filed by the C. W. Zimmerman Mfg. Co. v. the heirs of Alston Wilson, seeking to restain the administrator from paying out to the heirs money obtained from the sale of the homestead of the- widow and'to require the said heirs to account for the breach of a contract of sale entered into by the widow of Alston Wilson.

Heard before Hon. W. W. Whiteside. The bill in this case was filed by appellant against appellees, seeking to have a contract attached thereto construed and to enjoin appellees from interfering with the conduct of appellant’s business in reference to the subject-matter of the contract, and to enjoin a.n attachment suit begun by appellees against appellant and levied upon certain property of the appellant.

A piusa L from Limestone Chancery Court. Heard before Hon. W. T. Simpson. Bill by John I-I. Hundley, executor of Mary Ann Walton, deceased, against James W. Woodruff and others, for the construction of the will of the deceased. From a decree construing the will, defendants appeal.

Heard before the Hon. A. H. Benners. This was a bill filed by Florence Crawson by her next friend against Bessie Ellis et al. seeking to have declared null and void and set aside a paper writing purporting to he the last will and testament of Martha Laws, and also seeking to have declared null and void all the proceedings in the probate court admitting said alleged paper writing to probate as the last will of said Martha Laws; also seeking to have declared the rights of…

Heard before Hon. A. A. Coleman. This was a bill filed by Charles B. Powell as the administrator of a stockholder against the Ensley Development Company et. al. for an injunction to restrain certain corporate acts and for a receiver. From a decree appointing a receiver respondents appeal. The facts are. sufficiently stated in the opinion. There was an entire want of authority on the part of the judge of the tenth judicial circuit to appoint a receiver.

Heard before Hon. John C. Carmioi-iael. This was a bill by Lou Robertson, as the administratrix of the estate of Walter S. Robertson, deceased, alleging that she was the wife of said Robertson, and that during his lifetime he was the owner of six Alabama bonds in the sum of $1,000 each; alleging, further, that F. M. Robertson was in the possession of these bonds, and on demand had refused to deliver same to her, as the administratrix, or as the wife of said decedent, but…

Heard before ITon. Thomas H. Smith. This was a bill filed by Bromberg and others, as executors of the last will and testament of Frederick Johnston, deceased, against Edward P. Allen, the Roman Catholic bishop of Mobile, the Catholic charities, and others, and sought to enjoin the probate of a will purporting to have been the last will and testament of Mary Johnston, wife of Frederick Johnston.

Heard before Hon. W. H. Simpson. This was a bill filed by W. K. Wallace to foreclose a mortgage executed to him by E. R. Gibson, a married woman. The facts are sufficiently stated in the opinion of the court. From a decree granting the relief prayed this appeal is prosecuted.

• Heard before Hon. Thos. H. Smith. Bill by John W. Black against the Sullivan Timber Company and others. From a decree annulling the appointment of a receiver of defendant company, and overruling a motion for the appointment of a receiver plaintiff appeals. The facts are sufficiently set out in the opinion of the court.

Heard before Hon. W. L. Parks. Bill by M. T. Varnum against Charles E. Fuller and others. From a decree sustaining defendant’s demurrer to the bill, but overruling their motion to dismiss for want of equity, they appeal. This was a bill seeking to redeem certain lands described therein from foreclosure sale under the power contained in a mortgage executed by W. J. Varnum to J. S. Koonce.

Heard before Hon. A. H. Benners. No demand on the board of directors or stockholders was necessary under the facts alleged. — Montgomery Traction Oo. v. Harmon, 140 Ala. 585; Montgomrey Light Go. v.… Held: that the, mere fact that the directors and officers of a corporation are fraudulently.misappropriating the assets of the corporation, constitutes no ground for the appointment of a receiver.

• Heard before Hon.'W. W. Whiteside. Bill by Mary L. Bradford to cancel a note and mortgage executed by her to respondents testator for want of consideration, etc.- From a decree overruling demurrers to the hill respondents appeal. The pleadings are sufficiently set out in the opinion of the court. The bill as last amended is clearly a departure from the original bill. — Penn v. Spence, 54 Ala. 35; Marshall v. Olds, 86 Ala. 296; Mobile Savings Bank v. Burk, 94 Ala. 129.

Heard before Hon. A. H. Benners. Wittmier sold Bentley a certain piece of land, talcing the mortgage to secure the deferred payments which were evidenfced by four promissory notes falling due No. 1, 1905, 1906, 1907 and 1908. The first note provided for the payment of one thousand pounds good, average lint cotton and $23.59, and the others for one thousand pounds good, average lint cotton each.

Heard before Hon. A. I). Sayre. Bill by the Montgomery Light & Water Power' Company against the Citizens’ Light, Heat & Power Company. From a decree dissolving a preliminary injunction, complainant appeals. Complainant is entitled to an injuncton to prevent the use of its poles by the defendant until compensation has been made. — Birmingham- Traction Co. v>. Birmingham Electric Co., 119 Ala. 121.

Heard before Hon. W. H. Simpson. William Scharfeuberg files bis bill against, the town of New Decatur to prevent the town from raising the grade of Second avenue and Holly street from its present altitude, nearly two feet, causing appellant’s store floor to bo nearly a foot and a half below the then grade of the street on which it abuts. A reference was ordered to. ascertain the damages.

Heard before Hon. W. L. Parks. Bill by the Aslie-Carson Company against R. A. Bonifay and others, in which defendants filed a cross-biih From a decree sustaining defendants’ pleas to the bill, discharging an injunction on defendants’ cross-bill, and overruling a motion to dissolve an injunction granted defendants on their cross-bill on the coming in of the answer to the same, complainant prosecutes separate appeals.

<p>Appeal from Jeiferson Chancery Court.</p> <p>Heard before Hon. A. IT. Benners.</p> <p>This was a bill by Johnson to abate a public and private nuisance arising from the obstruction of certain streets in the city of Birmingham, by the dumping of slag into them by the Sloss-Sheffield Steel & 'Iron Co. The case made by the bill together with the facts are sufficiently stated in the opinion of the court.</p> <p>In order for a private individual to maintain a bill for the purposes sought in the case at bar, it must bé avered and shown not only that the complainant sustains some special injury to himself, distinct and independan! of a general injury to the public, but it must also be averred and shown that the injury will be irreparable, or will be such that a complete compensation therefor cannot be obtained in a single action at law. — Dennis r. M. & M. R. R. Co., 137 Ala. 649. The case at bar is on all fours in principle with the case just above cited, and in that case, the following cases are cited. — Keller v. BiUlington-, 101 Ala. 267; Bolling r. Crook, 104 Ala. 130.</p> <p>The right of complainant to maintain this hill is clearly established bv the following cases. — Roberts v. Matthews, 137 Ala. 533; Cabbell v. Williams, 127 Ala.-320; Whaleij v. Wilson, 112 Ala. 627; Jones r. Bright, 140 Ala. 268.'</p>

<p> Bill for Injunction to Restrain Construction of Telephone Line. </p> <p>1. Injunction; Temporary Injunction; Motion to Dissolve; Evidence. ■ — Ex parte affidavits and copy of deed in support of complainant’s title to the land, on the hearing of a motion to dissolve the temporary injunction on the coming in of the answer, although the sw-orn answer denies title of complainant to the land, may not he used to support complainant’s title.</p> <p>2. Same; notice. — Where extrinsic evidence is proposed to he used to support the allegations of the bill, or the denials of the answer, on the hearing of a motion to dissolve -an injunction, the offer to do so must he seasonably made and timely notice thereof given.</p> <p>3. Trusts; Suit l>y Trustee; mature of Title; Bill. — A hill filed by trustee to restrain the construction of a telephone line across land, which alleges that complainant was trustee for certain named persons, who are alleged to own the land, is fatally defective in not alleging facts to show that the trust is an active one, and not a mere naked trust, and that the complainant had the legal title.</p>

Heard before I-Ion. W. H. Simpson. Bill by T. M. Hobbs v. Long Distance Telephone and Telegraph Co., to prevent erection of poles and wires upon and across his land and for damages for having done so. .The allegations of the bill and the other pleadings are sufficiently stated in the opinion of the court. A telephone line on a public highway is an additional burden or servitude for which the abutting landowner is entitled to compensation.— 106 Am.

Heard before Hon. Thomas W. Smith. This was a bill filed by the city of Mobile to enjoin respondents from- obstructing the western end of Georgia avenue and to require them to immediately remove any obstructions therein placed. The- second paragraph of the bill alleges that one Sage O. Butler in 1845, being then the owner of the land covered by said avenue, by deed dedicated the said avenue as a street 60 feet wide extending from Dauphin street, to Old Shell Road.

Heard before I-Ton. Thomas H. Smith. Bill for specific performance of contract filed by appellees against appellant, the facts of which sufficiently appear in the opinion of the court.

Heard before Hon. A. D. Sayre. This was a bill filed by appellant and others, minority stockholders, against the appellee and others, as board of directors, alleging the incorporation of the Capital City Eire Assurance Company, the expiration of its charter by limitation, its dissolution, and the winding up of its affairs hy its board of control.

Heard before. PI on. R. B. Kelly. Bill by the Iron Belt Mercantile Company against Preston Lea and the Piedmont Land & Improvement Company. From a decree for plaintiff, defendants appeal. The facts are sufficiently stated in the opinion of the court. The decree pro confesso against, the Piedmont Land & Improvement Company was erroneous in the absence of proof of proper service, of the summons. — Independent Publishing Company v. American- Press Association, 102 Ala. 475.

Appeal- from Walker Oliancery Court. Heard before Hon. Alfred H. Benners. Bill by H. W. Stephenson against the Atlas Coal Company. From a decree sustaining a motion to dismiss for want of equity, complainant appeals. —The bill contained equity and its dismissal error-. — 15 A. & E. Ency.-of Law, p. 1002; 10 A. & E. Dec. p. 37; Long v. Ga. Pac. R. R. Go., 91 Ala. 519.

Heard before Hon. A. I). Sayre. This was a bill filed by Sigmund Roman against tbe Montgomery Iron Works and certain stockholders thereof alleged to- be solvent, and not filed against certain other stockholders on account of their alleged insolvency.

Heard before Hon. W. H. Simpson. This was a- bill filed by H. L. Traphagen to compel Gertrude H. Dickinson to contribute th'e value of the difference between the par value of her stock and the amount actually paid in by her towards the payment of complainant’s claim against the Alabama Kaolin Company, an insolvent corporation. The allegations of the-bill make complainant only a simple contract creditor. The other facts are sufficiently stated in the opinion.

Heard before Hon. W. L. Parks. This was a bill filed by the appellant to enforce specific performance of a contract alleged to have existed between appellant and appellee. The chancellor denied the relief prayed and complainant appeals. There was no submission on the pleas which was a waiver of them. — Adair v. Feder. 133 Ala. 620; Hollowa/y v. Southern B. & Tj. Asso., 136 Ala. 160; Johnson v. Common Council, 127 Ala. 244.

Appeal .from Cullman Chancery Court. ■ Heard before Hon. W. H.- Simpson. This bill was filed by P. A. Gillespie, and others, citizens and tax payers of the town of Hanceville, against Gibbs and others, as mayor and aldermen of said town, to enjoin the expenditure of public funds towards the b-uilding and equipping of a school house. The town of Hanceville was not made a party respondent.

’ Heard before Hon. W. L. Parks. The case made by the bill is that the appellant is a corporation organized under the laws, of Alabama and engaged ’in’the work of propagating a religious doctrine known as Universalista, and in’the building and organizing of churches within said state for’the purpose of furthering' said work and enabling' them to carry on the same in a more efficient'manner; that all of such churches are the property'of the state organization; that in…

Apeal from Birmingham City Court. Heard before Hon. O. W. Ferguson.

Heard before Hon. A. D. Sayre. Bill by the Lehman-Durr Company against George A. Folmar and others. From an adversei decree, defendants appeal. ^ • The bill alleges an indebtedness of George A. Folmar. to the Lehman-Durr Company of $4,104.71, with interest thereon from April 4, 1896, and that the debt accrued prior to June 12, 1896.

Heard before Hon. C. W. Ferguson. Bill by Cornelia Cowin against Kate Thomas and others. From a decree overruling a demurrer to the bill, defandant appeals. .The facts sufficiently appear in the opinion of the court. Demurrers 1, 2, 3, and 4 were improperly overruled as was the motion to dismiss'for want of equity. — § 1504, code 1896; 36 Ala. 533.

Heard before Hon. W. W. Wilkerson. This was a bill filed by Maggie C. Winkleman against Prank S. White and others for review of a decree, the facts of which sufficiently appear in the opinion of the court.

<p>Appear from Clay Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p> <p>This is a bill to declare a resulting trust in land and for alimony pending an application for divorce. The facts are stated in the opinion of the court.</p> <p>The hill is not multifarious. — Wilkerson v. Bradlei/, 54 Ala. 677; Andretos v. Jomes, 68 Ala. 117; Stone v. Knickerbocker, 52 Ala. 589. The object of the bill is single. — Randle v. Byrd, 73 Ala. 282; Bolmam-v. Lehman, 74 Ala. 507; Carpenter and wife v. Hall, 18 Ala. 439. The. court had jurisdiction to grant the relief prayed. — Driver ■ v. Fortune, 5 Port. 9; Shelby’s Case, 84 Ala. 327; Munford v. Pierce, 70 Ala. 452.</p> <p>The bill is multifarious and the demurrers are properly sustained.— 16 Cyc. 241; Heins v. White, 105 Ala. 673. The court had no jurisdiction of the defendant so as to render a personal decree for alimony against him. — Campbell v. Crawford, 63 Ala. 392; Murray v. Murray, 84 Ala. 365.</p>

Heard before Hon. W. T. Simpson. This was a bill filed by numerous creditors seeking to have set aside, and annulled as a fraud on creditors certain mortgages and sales made by Bike to the other parties named as respondents, and for receiver to take charge of 'the property. The accounts alleged to he due were variously made between the dates of Oct. 6, 1901, and March 24, 1902.

Heard before Hon. A. II. Benners. This was a bill filed in the chancery court of Walker county by Walker county in its corporate capacity án'd through its proper officers against John B. Hulsey, and prays that a receiver be appointed to take charge of and superintend the county’s poorhouse; that said John B. Hulsey be enjoined from further exercising acts of superintendence or control over said poorhouse or its property or inmates; that an account be stated between…

Heard before Hon. W. H. Simpson. This was a bill filed by appellee seeking to remove the administration of the estate of Kate Bresler from the probate to the chancery court.

.Appeal from Jefferson Chancery Court. Heard before Hon. A. H. Benners. ■ This is a petition on behalf of Kelly & Middleton, the purposes of which are sufficiently set out in the opinion of the court. Fom a decree dismissing the petition this appeal was prosecuted. Motion was also made for a rule nisi to the Chancellor to show cause whether he should be restrained from discharging attorneys, etc., the substance of which appears in the opinion.

Heard before Hon. W. W. Whiteside. This is a bill filed .by Zuber- for the dissolution of a partnership alleged to'- exist between complainant and Roberts and for an accounting.

Heard before Hon. A. H. Benners. This is a bill filed by W. H. Hutchinson against Palmer and Edwards, sheriff of .Talladega county to declare void and to vacate, annul and enjoin a judgment rendered at law against him in favor of said Palmer by the city court of Birmingham. Demurrer's were • sustained to the bill as amended and the bill was dismissed for want of equity.

Heard, before Hon. W. H. Simpson. This was a bill filed by the heirs and grandchildren of one Sarah Patterson seeking to set aside a i udgment by default rendered at the suit of Sealley Patteison against W. IT. Cartel’ as administrator of said Sarah Patterson. The bill alleges collusion between the plaintiff in the suit and the administrator or a failure on the part of the administrator to exercise diligence in defending the suit.

Appear from Pike Chancery Court. Heard, before Hon. W. L. Parks. Bill by W. T. Parish against A. A. Collier. From a decree in favor of complainant., defendant appeals-.

Heard before Hon. W. H. Simpson. Bill by Janies Hughes as administrator of the estate of John Hughes, deceased, against Wesley Clinton, and others. From a judgment for defendants, plaintiff appeals. This was a bill filed by the appellant as the administrator of the estate of John Hughes, deceased, seeking the foreclosure of a mortgage on land executed by Wesley Clinton and Apfe to said Hughes.

Heard before Hon. W. L. Parks. ' Action by the Swann-Abrams Hat Company and others against Etheridge Bros, and others. From a judgment for plaintiffs, defendants appeal. As to the law governing the requirements of a bill of discovery attention is directed to the following cases: Pollack v. Glafflin Go., 138 Ala. 644; M. & F. R. R. Go. v. McKenzie, 85 Ala. 551; Shackelford v. Bankhead, 72 Ala. 476.

Heard before1 Hon. W. H. Simpson. Tliis was a bill filed by appellee against appellants seeking to liave set aside the sale of certain land made by the register in chancery on the 22d day of February, 1897, the sale of a part thereof on May 28, 1903, and the sale of the entire tract on November 23, 1903, unless the defendant Harris will credit his said judgment or deficiency decree with the just and fair value of said land, and unless said credit is made that the court will…

Heard before Hon. Thomas H. Smith. Action by Fannie Johnson against Edmond Johnson. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion of the court. The purpose of the act is to aid those persons whose situation is such that they cannot test the hostile claim by direct proceedings in the usual way. — Adler v. Sullivan, 115 Ala. 582.

Heard before Hon. Alfred H. Benners. Bill by J. W. Yandenheuk to abate a continuing nuisance alleged to grow out of the constant throwing of rocks and other debris upon his house caused by blasting done by the respondents, the Central Iron & Coal Company. The facts sufficiently appear in the opinion of the court. From a judgment granting complainant relief this appeal was prosecuted.

Heard before Hon. R. B. Kelly. This is a bill filed by L. A. Simpson against H. A. Patterson, the nature of which is sufficiently stated in the opinion. The facts are also sufficiently stated in the opinion. .From a decree for complainant the respondent appeals.

Heard before Hon. W. L. Parks. This was a bill filed by E. E. Gill and others against C. C., B. F., and W. D. Colquitt, individually and as administrators of the estate of C. O. Colquitt, deceased, seeking to remove the administration from the -probate court of Crenshaw county to the chancery court thereof.

Heaid before Hon. H. A. Pearce. Action by Schloss & Kahn against J. -W. McIntyre and others. From a judgment sustaining- a demurer to a count of the complaint, plaintiff appeals. • This was an action to fasten an individual liability upon the commissioners of the Ashford dispensary for liquors and other things purchased for use and sale in the dispensary.

I-Iearcl before Hon. William S. Anderson. ■ ' Action by Leslie Hall against the Hand Lumber Company. Prom a judgment for plaintiff, defendant appeals. .This was an Action begun by appellee to recover an attorney’s fee. Nearly all the facts necessary to an understanding of the case are set out in the opinion. The check and voucher referred to in the opinion are in words and'figures as .follows: “To cover voucher 478. Bay Minette, Ala.,- May 30, 1902.

Heard before Hon. Charles A. Senn. Action by John J. Moo-re against Augustine M. Odom, executrix of P. Chavagnat, deceased, for attorney’s fees for services rendered deceased. From a judgment for plaintiff, defendant appeals.

Heard before Hon. W. W. Haralson. Action by the Howell Cotton Company against Mc-Cleskey & Whitman. From a judgment for plaintiff, defendant appeals. This is an action to recover damages for the breach of an executory contract. The complaint is in the folloiving language: “Count 1.

Heard before Hon. Charles W. Ferguson. This was an action on the common counts. The defendant filed the general issue and pleas 3, 4, and 5. Pleas 2, 6, 7, and 8 were withdrawn.

Heard before Hon. P. N. Hickman. Action by Lydia Clemmons against George H. Hendricks. From a judgment for plaintiff, defendant appeals. Under the facts in this case the mother acquisced in the contract made by the son and cannot recover. — R. C. P. & G. R. R. Co. v. Moon, 66 Ark. 413; Nixon v. Spencer, 16 Iowa, 214; Gayle v. Parrott, 1 N. H. 28; Campbell v. Campbell, 11 N. J. Eq. 268; Whiting v. Earle, 3 Pick. 201.

Heard before Hon. Charles W. Ferguson. Action by the Jebeles & Colias Confectionery Company against W. S. Brown. From a judgment for defendant, plaintiff appeals. The appellant brought suit in the court below to recover $1,250, the value of one-half of a party brick wall, setting out in full the contract between defendant and plaintiff’s vendor. The terms of the contract are sufficiently set out in ■ the opinion of the court.

' Heard before Hon. A. A. Coleman. Action by J. L. McConnell against J. E.' Adair for rent growing out of a contract Of lease. Tbe defense interposed ivas that Adair was a sub lessee and was damaged in a certain amount by tbe repair of tbe wall made by McConnell during tbe'time of tbe lease. There was evidence tending to show that tbe original lessee bad, been paid, a sum certain for tbe privilege’ of repairing tbe wall by McConnell.

Heard before Hon. John Pelham. Action by B. W. Dupree against the Shelby Iron Company for charcoal alleged to have been delivered and not paid for. The contract and the facts on which the opinion is rested sufficiently appear therein.

Heard before Hon. D. W. Speaks. Action by J. Y. Allen against R. O. Alston as executor of Thompldns, deceased, for money alleged to have been collected by Thompldns for the Scovill-Irwin Const. Co. and assigned to Allen. The original complaint was brought in the name of the Scovel-Irwin Const.

Heard before Hon. W. W. Haralson. Action by Jack Baugh against the Eagle Iron Company. From a judgment for plaintiff, defendant appeals. This was an action by appellee against appellant for failure to take 500 cords of oak and pine wood, which appellant had contracted to take from appellee, and which appellee had tendered to defendant.

Heard before Hon. John C. Eyster, Special Judge. Action by Lorenzo Corey against .James E. Penney. From a judgment for plaintiff, defendant appeals. • In this action plaintiff sued defendant upon 36 prommissory notes each for $25, bearing interest from date, payable annually. He formerly had brought suit against Penney on 26 similar notes each for $25, and in separate counts suing for the annual interest due on the^sáid 36 notes not sued on.

Heard before Hon. Samuel D. Browne. Action by Oates Chair Company against A. L. Gould. From a judgment for plaintiff, defendant appeals.

Heard before Hon. S. L. Brewer. Action by Columbus Hutchinson against D. W. Balter. Judgment for plaintiff. Defendant appeals. The complaint was in the following language: “The plaintiff claims of the defendant the sum of $200 damages for the wrongful conversion by him, on or about the 15th day of October, 1903, of the following personal property, to-wit: Three bales of lint cotton, the property of plaintiff.

Heard before Hon. H. A. Pearce. This is an action by A. H. Hilton against W. H. Smith, a constable, for the conversion by him of certain cotton alleged to belong to plaintiff. The facts necessary to an understanding of the opinion sufficiently appear therein.

Heard before Hon. W. W. Haralson. This was an action against Hooper and the sheriff brought by plaintiff for the conversion of certain wood alleged to be the property of the plaintiff. Hooper had a judgment against one Entrican, and procured execution to be issued on it which execution Avas • levied upon certain Avood as the property of Entrican. The Avood Avas sold under said execution.

Heard before Hon. John H. Disque. Action by the city of Attalla against the Southern Railway Company. Prom a judgment for plaintiff, defendant appeals.

Heard before Hon. O. Kyle. This is an action by Martha L. Young against Ryan and others for the conversion of a stock of goods, the facts of which sufficiently appear in the opinion of the court. Where a mortgagor retains. possession of a stock of goods- and is permitted to sell in the regular course of trade the mortgage is fraudulent. — Roden v. Norton, 128 Ala. 129; Birmingham Go. v. Roden, 110 Ala. 511; Otrcn,sv.

<p> Action Against Bank for Failing to Present Check. </p> <p>1. Deposit of Check for Collection; Oionership. — Neither deposit of a check with a bank for collection, and the entry on its books as a deposit of money in favor of the own-er of the cheek, nor the negligence of such bank in and -about the collection of the check from the drawee bank whereby there is a failure to collect it, nor all of these facts combined, makes the check the property of the collecting bank.</p> <p>2. Same; Bank Agent of Owner of Check. — In such case the bank in which the deposit is made becomes the agent of the owner of the check to collect it.</p> <p>3. Same; Rights of Parties. — When a check is deposited with a bank for collection, the relation of depositor and banker is consummated when the collection is made, and if not made, the bank’s right to charge off the deposit arises.</p> <p>4. Same; Liability of Collecting Bank for Negligence. — In such case, if the bank fails to collect the check through fault of its own, it is liable to the owner for all damages sustained by him through such failure.</p> <p>5. Same; How such Liability Enforced. — In such case the liability of the collecting bank may be enforced by an action of assumpsit sounding in damages, for a breach of the bank’s implied undertaking to use due care and diligence to collect the check, or by an action in case for damages resulting from negligence of the duties in respect of collection imposed upon it by law upon the fact of its receiving the check for collection.</p> <p>6. Same; Measure of Damages. — In such case the owner of the check upon its non-payment is entitled to recover only the actual damages sustained by reason of the failure of the bank to perform the duties incumbent upon it to collect the check.</p> <p>7. Same; Case at Bar. — A count in a complaint which alleges the deposit of a cashier’s check with a bank for collection, an agreement on the part of the bank to undertake such duty, the sending of the check direct to. the drawee bank, the suspension of the bank without paying the check, and that the collecting bank, the defendant, had refused to pay the amount of the check, does not slate a cause of action and is bad on . demurrer, for that it contains no allegations that plaintiff suffered any damages from defendant’s failure to collect the check.</p> <p>8. Same; When Negligence in Collecting Bank to Send Check Direct to Drawee Bank. — Where a check drawn by a cashier in his official capacity is deposited for collection, it is prima facie negligence in the collecting bank to send the check to be collected directly to the drawee bank for payment.</p> <p>9. Same; Notice to Depositor of Dishonor. — Where a check is deposited for collection and the check is dishonored, it is the duty of the collecting bank to give the depositor prompt notice of the dishonor.</p>

Tried before the Hon. John Pelham. This was an action brought by the appellee. Julius Kessler & Company, a corporation, against the appellant, M. Shiretzki, and sought to recover f100.00 alleged to be due the plaintiff by the defendant on a promissory note. The defendant pleaded the general issue, payment, a want of consideration, and the following special pleas: “4.

<p>Appeal from Montgomery City Court.</p> <p>Tried before the Hon. W. H. Ti-iomas.</p> <p>The appellant in this case, J. E. Gamble, was tried and convicted before the recorder of the city of Montgomery fox a violation of the city ordinance for carrying on without a license, the business of furnishing trading-stamps to merchants to be distributed by them to their customers for use in purchasing other merchandise. An appeal was taken by the defendant to the city court of Montgomery, wherein upon proper proceedings had the defendant was again convicted, and, from such judgment of conviction, takes tlie present appeal to the supreme court.</p> <p>The complaint filed by the city of Montgomery, using the language of the ordinance imposing a license for conducting the business of furnishing trading stamps to merchants, charged the defendant with carrying on such business without a license. The amount of the license imposed upon the business conducted by appellant, by the ordinance of the city of Montgomery, is ■■$400.00, while the license imposed upon persons conducting an ordinary mercantile business is grauduated upon the maximum amount of stock'on hand during the previous year.</p> <p>On the trial in the court below, the appellant raised the question of the validity of the ordinance imposing the license by a motion to quash the complaint and the prosecution, and by demurrers to the complaint, contending that the ordinance was void because “oppressive, discriminating, prohibiting, unreasonable;” “Not authorized bv the city charter”; “Double taxation”; “Because license imposed on merchants issuing trading stamps is an arbitrary sum, while license imposed on merchants is based upon maximum stock on hand during previous year.” The motion to quash and the demurrers were overruled, and the defendant interposed the plea of not guilty; and the trial resulted in a conviction.</p>

<p>Appeal from Clarke Circuit Court.</p>

<p>Appeal from Monroe Circuit Court.</p> <p>Heard before 1-Ton. John T. Lackland.</p>