Volume 148 — Alabama Reports

A ction for Damges for Destruction of Property by Fire. Appeal from Morgan Circuit Court. Heard before Hou. O. Kyle. ■Action by appellant aginst appellee for destroying a building and its contents by fire alleged to have originated from sparks emitted from defendant’s engine, while defendant was operating an engine and train of cars through Hartselle, an incorporated town. The building and contents alleged, to have been destroyed are fully described in each count.

Action for Damages for Destruction of Property by Fire. Appeal from Bessemer City Court. Heard before Hon. B. C. Jones. ' Action by J. B. Martin, administrator, against the Birmingham Railway, Light- & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed. The complaint in this canse contained two counts.

Action for Damages for Loss of Goods. Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Action by L. J. Broadwood against the Southern Express Company.

Action- for Damages to- Goods. Appeal from Jefferson Circuit Court. Heard before Hon. A. A. Coleman. This is an action by Alex Dunlap against the L. & N. R. R. Co., for damages to certain goods. The facts upon which the opinion is rested are sufficiently stated therein.

Action for Damages to Crops from Stock Depreciations on Account of Insufficient Cattle Guards. Appeal from St. Clair Circuit Court. Heard before Hon. John Pelham. Action by appellee against appellant under section 3480 of the Code of 1890 for damages to crops for want of proper cattle guards.

Action for Goods Destroyed by Fire.' Appeal from Houston Circuit Court. Heard before Hon. William C. Oates> Special Judge. This was an action to recover damages for failure to .deliver 144 pairs of shoes alleged to have been shipped over plaintiff’s line as a common carrier and the failure to deliver the same at the point of shipment.

Action, for Damages for Kilting Htock. Appeal from Montgomery City Court. Heard before Hon. A. I). Sayre. Action by John I). Mitchell against the Western Rail-' way of Alabama. From a judgment in favor of plaintiff, defendant appeals. Affirmed. This is an action for damages, brought by appellee against appellant for the negligent killing of two mules.

Action for Injury to Stock. Appeal from Bibb Circuit - Court. Heard before Hon. John Moore. Action by R. IT. Hubbard against the Louisville & Nashville Railroad Company. Prom a judgment for plaintiff, defendant appeals. This was an action for injury to a horse. There were three counts in the complaint, the second of which was eliminated. .

Action for Damages for Injury to a Horse. Appeal from Colbert Circuit Court. Heard before Hon. Ed. B, Almon. Action by David M. Taylor against the Southern Bailway Company. From a judgment for plaintiff, defendant appeals. This was an action for damages for injuries to a mare, which injuries, it is alleged, renderded her valueless.

Action for Dunnages for Killing a Hog. Appeal from Hale Circuit Court. Heard before Hon. John Moore. This is an action begun by M. Curry as administrator against the Southern Railway Company, claiming damages for killing a hog, the property of intestate. The court sustained demurrers to counts 4 and B, as amended, and from this action of the court this appeal is prosecuted.

Damages for Killing Stock. Appeal from Houston Circuit Court. Heard before Hon. H. A. Pearce. This is an action by S. C. Carroll against the C. of G-. By. Co., for damages for killing stock. The facts ón which the opinion is rested sufficiently appear therein.

Action for Damages for Ejecting Passenger. Appeal from Marshall Circuit Court. Heard before Hon. Jabíes A. Bilbro. This was an action brought by appellee against appellant for damages for being put off the train. The complaint contained but one count which alleges a wrongful ejection of the plaintiff by the conductor from one of defendant’s cars onto the platform of said car, and from thence to the ground resulting in injuries to his person.

Action for Damages for Personal Injuries to Person on Trade. Appeal from Birmingham City Court. Heard before Hon. Charles W. Ferguson. This was an action by the administrator of Conrad Richwein, suing to recover damages for the negligent killing of the intestate by appellant. The complaint contained but two counts.

Action for Damages for Personal Injury Received in Alighting from a Moving Tram. Appeal from Jackson Circuit Court. Heard before Hon. W. W. Haralson. Action by Patterson against the Southern Railway Company for damages, the nature and character of which, together with the facts, sufficiently appear in the opinion of the court.

Action for Damages for Death hy Wrongful Act. Appeal from Mobile Circuit Court. Heard, beore Hon. Samuel B. Browne. Action by Ella Daniels ,as .administratrix, against James A. Carney, administrator of Louisa Carney, deceased, to recover for personal injuries resulting in tbe death of plaintiff’s intestate. From a judgment sustaining demurrers to tbe complaint, plaintiff appeals.

Action for Damages for Injury to Passenger. Appeal from Limestone Circuit Court. . Heard before Hon. W. R. Walker, Special Judge. Action by William W. Nelson against the Southern Railway Company.

Action for Damages for Personal Injury from Wrongful Act. Appeal from Morgan Circuit Court. Heard before Hon. O. Kyle. A.ctiou by Mary P. Engle against W. B. Simmons. From a judgment for defendant rendered on sustaining a demurrer to 'the complaint, plaintiff appeals. — The demurrers in this case present two material questions for consideration.

Action for Damages for Personal Injury. Appeal from Morgan Circuit Court. Heard before Hon. D. W. Speake. Action by Ed Garth against the North Alabama Traction Company. From a judgment for defendant, plaintiff appeals. This was an action for damages for a personal injury.

Action by Passenger for Personal Injuries. Appeal from Birmingham City Court. Heard before Hon. Criarles W. Ferguson. This was an action for damages, brought by plaintiff a passenger, for person injuries alleged to have been received occasioned by the car starting with a sudden jerk while plaintiff was attempting to alight. A member of demurrers were interposed, not necessary to be here set out.

Action for Injuries to Licensee. Appeal from Etowah Circuit Court. Heard before Hon. W. W. Haralson. Action by Enoch Marvin Burks against the Alabama G-reat Southern Railroad Company. From a judgment in favor of plaintiff, defendant appeals. This was an action for damages by an employe, the plaintiff, against appellant, for personal injury alleged to have been sustained.

Action for Damages for Injury to Passenger. - Appeal from Birmingham City Court. ' Heard before Hon. Charles A; Senn. Action by Ella P. Moore against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. This was an action for damages growing out of an injury to the passenger.

Action for Injury to Passenger. Appeal from Montgomery City Court. Heard before Hon. A. D. Sayee. This was an action by Lewis, a passenger, for damages for injury received in a collision between one of defendant’s street cars and some Louisville & Nashville freight cars at a crossing on grade. The seventh count of the complaint is set out in the opinion.

Action for Damages for Injury to Employe. Appeal from Jefferson Circuit Court. Heard before Hon. A. A. Coleman. Action by Michael Kelly against the Louisville & Nashville Railroad Company. Judgment for defendant. Plaintiff appeals. Reversed and remanded. This was an. action for damages for personal injury, brought under the employer’s liability act. The complaint contained seven counts, to which á great many demurrers were interposed and overruled.

Action for Damages for Injury to An Employe. Appeal from Madison Circuit Court. Heard before Hon. D. W. Speaks. This was an action for damages by Charles P. Townes against the Dallas Mfg. Co., for personal injuries sustained while in the employment of a contractor in the employment of plaintiff. The pleadings and the facts are sufficiently stated in the opinion.

Action for Damages for Injury to Employe. Appeal from Bessemer City Court. Heard before Hon. B. C. Jones. Action by Joseph Huggins against the Southern Railway Company. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded. This was an action by appellant, wbo sues under tbe employer’s liability act for damages received while coupling cars in defendant’s yards at Selma.

Action for Damages for Death of Employe. Appeal from City Court of Birmingham. Heard before Hon. Charles A. Senn. Action, by Y\T. L. Mosley, as administrator of the estate of George W. Mosley, deceased, against L. K. Moss. From a judgment tor plaintiff, defendant appeals, lie-versed and remanded. This was an action of damages for personal injury. The counts on winch issue was joined were counts 1, 2, 3, 1, 5, and 11.

Action for Damages on Account of Defective Streets. Appeal from the Montgomery City Court. Heard before Hon. A. D. Sáyre. Tbe appellee sned appellant for damages resulting by a fall received by her on the streets of the city, which she alleges ivas occasioned by the sidewalks being out of repair on account of a ditch being left open across the sidewalk. She also alléges that the council’s attention was called to it, but that they left it open and dangerous for some time.

Action for Damages for Communicating Infectious Diseases by Leasing Infected House. Appeal from Madison Circuit Court. Heard before Hon. Paxil Speake. Tbis is an action begun by Finney against Steele to recover damages occasioned by the sickness of the child of plaintiff, alleged to have been occasioned by infection in the leased premises. The facts are sufficiently stated in the opinion of the court.

Action for Damages for Failure to Deliver Telegram. Appeal from DeKalb Circuit Court. Heard before Hon. James A. Bilbro. This iras an action for failure to transmit and deliver tbe telegram set out in the opinion. The assignments of error Arere as folloArs: (1) The court erred in overruling demurrers to the sixth count of the complaint. (2) In overruling demurrers to the second count of the complaint. (3) In overruling demurrers to the eighth count.

Ejectment. Appeal from Tuscaloosa. County Court. ' Heard before Hon. Ormond Sommerville, Special Judge. Ejectment by William W. Farmer and others against Mary J. Hinton and others. From a judgment for plaintiffs, defendants jointly appeal. Affirmed. Mary Hinton disclaimed possession of certain portions of the land, which disclaimer was confessed, and issue was joined on a plea of not guilty as to the other part of the land.

<p>Abatement; Another Action Pending;.Ejectment; Unlawful Detain-er. — A plea setting up the pendency of an unlawful detainer suit between the same parties and for the same land is .not a bar to an action in ejectment brought by the same plaintiff against the same' defendant.</p>

<p> Ejectment. </p> <p>Appeal from Marengo Circuit Court.</p> <p>Heard before Hon. John T. Lackland.</p> <p>Action of ejectment by A. Y. Sharpe and others against E. L. Simnfons and others. From a judgment in favor of plaintiffs, defendant Simmons appeals.</p> <p>— The court erred in permitting the execution to be offered in evidence as the judgment was an individual judgment. The words, “& Company” imports a partnership, and with equal rea-on the words, “& Son” would import a partnership.— Henderson v. Perryman, 114 Ala. 647. A partnership is an entirety. — Grossewll v. Lehman, 54 Ala. 363. The insertion of the name of A. Y. Sharpe & Son in the execution on an individual judgment obtained by A. Y. and G. G. Sharpe, rendered the execution void. — 82 Ala. 411. The execution is further defective in failing to comply with section 1883 of the code. — 138 Ala. 455; 133 Ala. 633. The court erred in permitting the certificate of judgment, because it failed to set out the names of the parties plaintiff as it was in the individual judgment.- — ■ 121 Ala. 552.</p> <p>— When a joint action is brought against several defendants who plead jointly the joint judgment is proper. — Fields v. Williams, 91 Ala. 502; 11 Ency. of E. & P. p. 856. Defendants in ejectment may demand separate verdicts but failing to make such demand a general verdict is conclusive. — Winan v. Christy, 4 Gal. 70; Ellis v. Jams, 7 Cal. 409. Several persons in possession of several parcels of land may be joined. — 15 Ency. of P. & P. p. 739 and note; 7 lb. p. 312-13-14.</p>

<p>Tenancy m Common; Adverse Possession; Ov,ster; Evidence. — The giving of tbe affirmative charge for the plaintiff, and the exclusion of evidence, offered by the defendant on the question of ouster, was error, as the evidence was sufficient-to submit to the jury the question, of whether or not one of the tenants in common had ousted the others and so obtained title by adverse possession.</p>

Ejectment. Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne Suit by Margaret Keith, et al., against John H. Rogers to recover possession of certain lands in statutory ejectment. The facts sufficiently appear in the opinion of the court. — There can be no adverse possession by color of title under a deed uncertain in description. — Black’s Case, 109 Ala. 112; Railroad Go. v. Boykin, 76 Ala. 560.

Ejectment. Appeal from Barbour Circuit Court. Heard before Hon. A. A. Evans. Action by W. T. Middlebrooks against M. C. Stephens. From a judgment in favor of defendant, plaintiff appeals. This was an action to recover possession of a certain tract of land named in the complaint.

Ejectment. Appeal from Geneva Circuit Court. Heard before Hon. H. A. Pearce. Action by James S. Keitli against Aaron H. Creel. Judgment for plaintiff. Defendant appeals. This was a statutory real action in tbe nature of ejectment to recover a certain 40 acres of land named therein. The plaintiff under the statute propounded interrogatories to the defendant, which interrogatories were answered, and in which defendant set up its chain ■of title.

Ejectment. Appeal from Covington Circuit Court. Heard before Hon. H. A. Pearce. This is an action in ejectment begun by Riley, against Fletcher, et al. The general charge was given for the plaintiff and the defendant appeals. The facts are sufficiently stated in the opinion of the court.

<p> Ejectment. </p> <p>Appeal from Bullock Circuit Court.</p> <p>Heard before Hon. A. A. Evans.</p> <p>This was an action of ejectment, begun by S. B. Gris-wold and others, to recover an undivided six-fourteentlis interest in certain lands described in the complaint. It was originally brought against Kinchen Griswold, and on his motion O. O. and B. B. Griswold were made'parties defendant as landlord and as owners of the undivided' interest. It was agreed that J. J. Griswold on and prior to May 12, 1896, was the owner of the lands in dispute, and was in possession of the same at the date of his death. It was further agreed that the defendants were in possession of all of the lands sued for, claiming the same as their own, prior to and at the time of the commencement of this action. It was shown by the testimony that plaintiffs and defendant were the children of said J. J. Griswold. The following paper ivas introduced in evidence: “State of Alabama, Bullock County. Know all men by these presents that I, John J. Gris-wold, for and in consideration of the love I have for my sons Kinchen B. Griswold, Ben B. Griswold, and Charlie C. Griswold, do give, grant, and by these presents convey nnto the said Kinch, Ben B., and Charlie Gris-wold, mj sons, the following described real estate: (Here follows a description of the land sued for.) All in Bullock county, Ala, The above parties are to draw for their own share. Sol’s house goes to E. 80, and two acres of land where the house stands. Simon’s house goes to W. 80, and two acres of land where the house stands. (Signed) J. J. Griswold|” Attested by two witnesses. The evidence tended to show that the grantor spoke of this as a will. The evidence further tended to show that he delivered it to one of his daughters, to' be given to the proper parties after his death. There was evidence also tending to show that the paper was placed in a tin box where the grantor kept his valuable papers, and after his death was taken, out by a daughter and delivered to the defendants. At the conclusion of the testimony the court gave the plaintiffs the affirmative charge.</p> <p>On the question of delivery of the deed we call' the court’s attention to the following authority. — 9 A. & E. Ency. of Law, (2nd Ed.) p. 157; 11 A. & E. Ency. of Law, (2nd Ed.) pp. 346-7 and notes; Foster v. Mansfield, 37 Am. Dec. 154; Wheelwright v. Whéelright, 3 Am. Dec. 66; Hatch v. Hatch, 6 Am. Dec. 67; Pruitt v. Ash-ford, 90 Ala. 301; Davis v. Clarice, 58 Kan. 100; Ar-rington v. Arrington, 122 Ala. 516 '; Berry v. Young, 35 Am.-St. Rep. 186; Stephens v. Rinehart, 72 Pa. St. 433; Hathaioay v. Payne, 34 N. Y. 92; Stone v. Duvall, 77 111. 475; Stephens v. Huss, 54 Pa. St. 20; Sec. 1029, code 1896. See also note on page 553,'53 Am. St. Rep.</p> <p>— In determining the character of the conveyance, it is competent to ascertain what occurred at the time it was signed. — Sharpe v. Hall, 86 Ala. 114. The intention of the maker is the ultimate object of the inquiry. — Crocker v. Smith, 94 Ala. 297. The facts surrounding this case indicate a. testamentary intention. — 2 cases supra. Under the following authorities, there was no delivery of the deed.' — ; Fits pa-trick v. Brig mam, 130 Ala. 454; Richardson v. Woodstock Iron Co., 90 Ala. 270; Wcisim/er v. Cook, 19 Am. St. Rep. 320; 9 A. & E. Ency. of Law, (2nd Ed.) p. 135, and note on page 156.</p>

Ejectment. Appeal from Chilton Circuit Court. Heard before Hon. A. H. Alston. Ejectment by Thomas E. Dennis and others against Houston Price and others. Prom a judgment for defendants, plaintiffs appeal. This was an action of ejectment, begun by appellants against appellees.

Ejectment. Appeal from Covington Ci-i cnit Court. Heard before Hon. H. A. Pearce. Ejectment by Ida McCreary and others against the Jackson Lumber Company. From a judgment in favor of defendant, plaintiffs appeal. — The court erred in giving the general affirmative charge for the defendant, as it was a question for the jury as to whether or not the plaintiff had shown .a, superior title in this case.— ZuncLlo v. Baldwin, 114 Ala. 428; Jackson Lbr.

Ejectment. Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Bbowne. This was a statutory real action in the nature of ejectment brought by apellant against appellee to recover certain lands therein described. The plaintiff: bases his right of recovery upon a patent issued by the United States, Aug. 5th, 1897, to Martha Baker as the widow of Henry Baker who made the original entry on the lands.

<p>Ejectment; Evidence; Admissibility. — In a court of law, the title to ' land conveyed by mortgage vests in the mortgagee, after the law day of the mortgage and default in payment, and thereafter the mortgagor has only an equity of redemption, and the endorsement of a credit on the martgage made after the law day does not pass to the martgagor any title recognized in 'á court of law; consequently an unpaid mortgage on -which is endorsed; several years after the law day of the mortgage, a credit, is admissible in evidence as a lint in the title of the holder of the mortgage.</p>

Forcible Entry and Detainer. Appeal from Mobile Circuit Court. Heard before Hox. Samuel B. Beowxe. Action by Laura Fowler and others against Irene Prichard and others. From a judgment in favor of defendants, plaintiffs appeal. This was an action of forcible entry and detainer begun in the justice court by appellants against appellees.

Forcible Entry and Detainer. Appeal from Jefferson Circuit Court. Heard befoie Hon. A. A. Coleman. This is an action of forcible entry begun by Mary Brown against A. H. French in the justice court and removed under §§ 2147-2149 of the code to the circuit court of Jefferson county. The facts are sufficiently stated in the opinion. — When a defendant enters by foi ce or threats no demand is necessary before bringing suit. — Knowles v. Ogletree, 96 Ala. 555.

Detinue. Appeal from Blount Circuit Court. Heard before Hon. W. W. Haralson. Action by Blount county against George H. Parker, as trustee, etc., and others. From a judgment for plaintiff, defendants appeal. — On the questions involved in this appeal we cite the following authorities. Gresham v. Taylor, 51 Ala. 505; Capitol City Insurance Col v. Caldwell Brothers, 95 Ala. 90; Tillman v. Lacey, 80 Ala. 108; Macide v. Smith, 5 La. Am. 717; 52 Am.

Detinue. Appeal from Montgomery City Court. Heard before Hon. A. D. Sayre. Detinue by H. S. Bales against the Louisville & Nash-vills Bailroad Company, in which the Merchants’ National Bank of Lawrence, Kan., intervened. From a judgment for plaintiff, intervener appeals. This is an action of detinue begun by appellee' against the Louisville & Nashville Railroad Company to recover a car load of apples in barrels and damages for their use and detention.

Detinue. Appeal from Geneva County Court. Heard before Hon. P. N. Hickman. Action by Dillon & Pennell against H. C. Riley. From a judgment for plaintiff, defendant appeals.- — Under §§ 1477 and 1478, code 1896, the vendee, Smith, could have interposed the plea of usury and so have reduced the debt or defeated. recovery.

Detinue. Appeal from Dale Circuit Court. Heard before Hon. A. A. Evans. Action by A. S. Clafk against J. I). Holman. From a judgment in favor of plaintiff, defendant appeals. Action of detinué by appellee against appellant for tlie recovery of a mule. The facts are sufficiently stated in the opinion. The plaintiff and defendant each requested the affirmative charge.

Action by Creditor Agai/nst Sureties on Administrators Bond. Appeal from Montgomery City Court. Heard before Hon. A. D. Sayee. Lola Daniels, nee McQueen, recovered judgment against Whetstone as administrator of the estate of Mills Rogers. Execution was issued on the judgment, and returned no property found. She brings this suit against the sureties upon the administrator’s bond.

Assumpsit. Appeal from Jackson Circuit Court. Heard before Hon. W. W. Haralson. The suit is an action on a note given by. appellant to appellee for the sum of $30.

Assumpsit. Appeal from Elmore Circuit Court. Heard before Hon. S. L. Brewer. Action by G. M. Harrington & Son against J. W. Dorougli. From a judgment for plaintiffs, defendant appeals.

Action for Uo~m~ntissions as Real Esta~tei Broker. Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Action by Espalla against Harmon for commissions for negotiating purchase of real estate. Judgment for plaintiff, and defendant appeals, — The court erred in giving the general affirmative charge for the plaintiff. — 2 Mayf. pp. 561 and 564. The general charge should halt© been given for the defendant.

Assumpsit. Appeal from Tallapoosa Circuit Court. Heard before Hon. S. L. Brewer. This is an action of assumpsit begun by Hinds Peevey against J. W. Tapiey, and others to recover on certain promissory notes. The facts are sufficiently stated in the opinion of the court, as are the pleadings and the action of the court on evidence.

Action for Breach of Contract. Appeal from Tuscaloovsa Circuit Court. Heard before Hon. S'. H. Sprott. Action for breach of contract by A. P. Patton against Christie, Lowe & Heyworth and others. Judgment for plaintiff. Defendants appeal.

Bill to Quiet Title. Appeal from Marshall Chancery Court. Heard before Hon.. W. H. Simpson. This was a bill filed by Charles and Sheffield Couch against William Couch and others to quiet title to certain lands therein described.

Bin to Remove Administration Into the Chancery Court and Require Executor to Cine Bond. Appeal from Mobile Chancery Court. Heard before Hon. Thomas H. Smith. Suit by Edith Cronk and others against James William Cronk. Demurrer to the bill was overruled, and defendants appeal.

Bill by Go-Tenmits for cm Accounting for Standing Timber Gut and Removed; for Discovery in Aid of the Accounting, and for Injunction Against Further Removal. Appeal from Butler Chancery Court. Heard before Hon. W. L. Parks. Bill by Louisa Crenshaw and others against the Gulf Red Cedar Lumber Company and others. From a decree adjudging that pleas are insufficient, defendants appeal.

Bill by Creditor to Bet Aside Conveyance for Fraud. Appeal from Greene Chancery Court. Heard before Hon. Ti-iomas IT.

Bill bo Foreclose Mortgage. Appeal from Coffee Cliancery Court. Heard before Hon. W. L. Parks. This ivas a bill filed by appellee against appellant to foreclose a mortgage assigned to them and given by appellant to one J. B. Harper. A foreclosure was decreed, .and the land sold to satisfy the decree.

Bill to Foreclose Mortgage. Appeal from Slielby Chancery Court. Heard before Hon. R. B. Kelly. Action by the Hanover National Bank and others against John Durr and others. From a decree in favor of complainants, respondents appeal.

Bill' to Quiet Title. Appeal from Mobile Chancery Court. Heard before Hón. Thomas IT. Smith. This was a bill to remove cloud from title filed by ap-pellee against appellant.

Bill for Dissolution of Partnership, and For Sale of Property For Division. Appeal from Mobile Chancery Court. Heard before Hon. Thomas H. Smith. Bill by Anua R. McGrath and others against Louis Stein, axid others, for a dissolution of a partnership and for sale of property for division. From a decree dismissing the bill for want of prosecution, plaintiffs appeal.

Bill to Cancel Decree. Appeal from Elmore Chancery Court. Heard before Hon. W. W. Whiteside. Bill by N. B. Sewell and. others against Frances 0. Hoffman and others. From a decree denying a motion to dismiss for want of equity and overruling demurrers to the bill, defendants appeal.

Quo Warranto-. Appeal from Jefferson Circuit Court. Heard before Hon. A. A. Coleman. Robert Frederick, on the relation of the state, filed an information ^against one James Brodie, alleging (fiat fie fiad unlawfully usurped and was unlawfully exercising' the rights and jurisdiction pertaining to the office of justice of the peace in precinct 45,- Jefferson county, Ala.

Quo Warranto to Determine Right to Office of District School Trustee. AppeaXj from Walker Circuit Court. Heard before Hon. A. H. Alston. Quo Warranto by the state, on relation of H. W. Hamilton, against Calvin Kitchens. From a decree dismissing the petition, relator appeals. The application was as follows: “Your petitioner and relator, the state of Alabama, on the relation of IT.

Quo Warranto to Inquire as to the Right of Hubbard to Hold the Office of Recorder. Appeal from Pike Circuit Court. Heard before Hon. H. A. Pearce. This was a petition, on the relation of John Gamble, addressed to the judge of the Twelfth judicial circuit, asking for an order* to G. J. Hubbard to show by what right or authority he was holding the office and exercising the rights and powers of recorder in the town of Troy.

Petition for Writ of Proh4b~tion. ORIGINAL petition in Supreme Coult.

Mandamus. Appeal from Geneva Circuit Court. Heard before I-Ion. John P. Hubbard. Mandamus by Albritton, on the relation, etc., against Roach, judge of probate, to compel the issuance to relator of a deed for lands purchased at tax sale. The facts sufficiently appear in the opinion of the court. There was judgment for relator and respondent appeals.

Mandamus. Griuixal petition in Supreme Court.' Application by James Eel Wellclen for mandamus to compel the emry of an order requiring one John R, Witt-to restore to applicant’s possession certain personal property, the subject- of litigation in another suit.

False Imprisonment. Appeal from Limestone Circuit Court. Heard before Hon. Paul Speaks. . Action by Adam Green against C.' N. Robinson & Co., and others. From a judgment for plaintiff, defendants appeal.

False Imprisonment. Appeal from Jefferson Circuit Court. Heard before Hon. A. H. Alston. Action by Young Bufford against P. C. Chambers; et al., for false imprisonment. There was judgment for defendants, and plaintiff appeals. This was an action begun in the Bessemer city court, and, upon application of the defendant, removed to the circuit court of Jefferson county.

ilialw~ons PrO$C,(:ut'tOfl~ (t1~ (1 False I)flJ)1~SOTh)fleflt. Appeal from Birmingham City Court. Heard before Hon. Charles A. Senn. Action by John Fuqua against A. A. Gambill. Judgment for plaintiff, and defendant appeals. This was an action for malicious prosecution and false imprisonment. The first count was in Code form.

Trover. Appeal from Coosa Circuit Court. Heard before Hon. S. L. Brewer. This was an action for conversion of certain cotton seed alleged to have been mixed by the agent of defendant with other seed. The first count is in case, and counts on a destruction of the mortgage lien. The other counts are for the conversion of the seed after a constructive delivery to plaintiff under a mortgage executed by one Francis Dawson.

Trover. Appeal from Walker Law and Equity Court. Heard before Hon. T. L. Sowell. Action by J. C. Stovall against J. E. Adair for conversion of wagons. Judgment for plaintiff. Defendant appeals. During the examination of the plaintiff as a witness, he was asked, “What did defendant do and say when he came to your house?” Objection was interposed to this question on the ground that it was immaterial. This was overruled. The witness answered: “Defendant was drunk.

Trespass for Taking Furniture. Appeal from Bessemer City Court. Heard before Hón. B. 0. Jones. Action by Sallie Williams against Will Terry and others. From a judgment for plaintiff, defendants appeal, This was an action for trespass for taking goods. No question was raised on the pleading. , The tendencies of the evidence and the assignments of error are sufficiently set out- in the opinion of the court.

<p> Action on Constable’s Bond for Failure to Levy Execution. </p> <p>Appeal from Lauderdale Circuit Court.</p> <p>Heard before Hox. E. B. Almon.</p> <p>Action by J. T. Reeder, as surviving partner, etc., against J. A. Huffman and others. From a judgment for defendants, plaintiff appeals.</p> <p>This was an action on the constable’s bond, and the gravamen of the charge is that said constable refused and wholly failed to execute two executions placed in his hands. The complaint alleges the judgments on which the executions were issued, the situs of the property subject to these executions, and other matters to show a breach of the constable’s bond. The evidence was in conflict in reference to the failure to levy the execution and as to the opportunity for levying them. It was in sharp conflict as to refusal to' levy them. In fact, the evidence tended strongly to show an effort to levy the execution. The defendant requested the court to give the following charges, which the’court did: “(1) If the jury believe from the evidence that the defendant failed to act with diligence in his effort to execute the writs, then, if the jury are reasonably satisfied from the evidence that a diligent effort would have been unsuccessful, your verdict will be for the defendant. (2) Unless the jury are reasonably satisfied from the evidence that the defendant failed to act with diligence in his efforts to execute the writ, then you will find for the defendant.”</p>

Damages for Breach of Warranty of Title. Appeal from Covington Circuit Court. Heard before Hon. John P. Hubbard. Action by S. W. McGowan and. others against J. A. Presttvood and o-tliers. From a judgment in favor of plaintiffs, defendant Prestwood appeals. — Under the state of the pleadings in this case the court erred in adjudging all the costs against Prestwood. — Handley v. Lawler, 90 Ala. 527; §§ 1331 and 1332, Code 1896.

<p>1. Trespass; Pleadings; Complaint. — A count of a complaint alleging that a trespass was committed upón the property of the plaintiff “a description of _ which is hereto attached marked ‘Exhibit A,’ and made a part hereof; that portion of the same which lies adjacent to the road bed of the Southern Railway Company” is not subject to demurrer that it did not sufficiently describe the permises.</p> <p>2. Same; Plea; Justification. — plea is insufficient as an answer to a complaint in trespass to realty, which alleges that before the happening of the matters complained of defendant had permission to enter upon said land and construct its telegraph line across the lands described in the complaint, such permission being granted by the railroad company, which was duly authorized to grant such permission, the facts therein set up being in mitigation of damages, and not a justification, and available under the general issue.</p> <p>3. Same; Exemplary Damages. — When a trespass on land is attended by aggravating circumstances of wantonness or malice, exemplary damages may be awarded.</p> <p>4. Same. — In an action for trespass where it is shown that defendant’s fence was destroyed in several places and that such destruction was not necessary to the work being done in repairing the line, the jury may infer malice and wantonness authorizing the assessment of exemplary damages.</p>

Action for Wrongfully ancl Maliciously Suing Out Attachment. Appeal from Selma City Court. Heard before'’ Hón. A. W. Mabry. This appeal- is from the action of the trial court in granting to plaintiff in the-canse a new trial. The action was one for willfully, fraudulently and maliciously causing an attachment to be issued and levied upon certain property of the plaintiff to satisfy 'a debt due by another party.

Action for Damages for Maintaining a Nuisance. Appeal from Lamar Circuit Court. Heard before I-Ion*. S. H. SpR.ott. Action by Nathaniel Edgeworth against the town of Vernon. From a judgment for plaintiff,.defendant appeals. Tlie fficts sufficiently appear in tlie opinion of the court. — The court erred in overruling the demurrers to the complaint. — 116 Ala. 576; 77 Ala. 284; 93 Ala. 26. Counsel discusses assignments of error from 1 to 33 inclusive but cites no authority.

Violation of Town Ordinance. Appeal from Fayette Circuit Court. Heard before Hon. S. H. Sprott.

Action for Penalty for Failure to Enter Satisfaction of ' Mortgage. Appeal from Coffee Circuit Court. Heard before Hon. H. L. Martin, Special Judge. Action by J. M. Smith and others against the Bank of Enterprise. Prom an affirmative charge for defendant, plaintiffs appeal.

Mechanic or Material Marts Lien. Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. This is an action begun by a partnership composed of S. H. Harrison & Son against Clara McGeever to enforce a vendor’s lien under a contract made with the husband of tlie defendant.

Heard before Hon. Thomas W. Coleman, Jr. Annie B. Martin sued the defendant in the common counts for $1,000.00, and recovered a judgment for $250.00. The defendant moved for a new trial upon the following grounds: That the verdict is not supported bjr the evidence, and that the same was a compromise verdict. Upon the hearing of the motion the trial court, after hearing the evidence, set aside the verdict and granted the defendant a new trial.

Trial Right of Property. Appeal from Geneva Circuit Court. Heard before Hon. H. A. Pearce. This is, an action of attachment begun by Law & Ed-monds, as individuals and partners, against Tom Daniel, which was executed by levying the same upon a lot of seed cotton, a lot of cotton seed, fodder, corn, oats, and three head of hogs. Appellant filed his claim to said property as landlord of Daniel. The other facts sufficiently appear in the opinion.

<p>1. Certiorari; Misdescription of Parties.- — Claimant procured certio-rari to carry up cause from Justice to Circuit Court, and in the petition claimant was described as defendant. Held, Under §‘ 4S8, Code 1S96, that such irregularity was no ground for dismissing certiorari in circuit court.</p> <p>2. Evidence; Declarations; Res Gestae. — The rule permitting the declarations of a party in actual possession of property asserting title in himself to be admitted in evidence as part of the res gestae, explanatory of ‘his possession, does not extend to and render admissible declarations as to the history and source of the title.</p> <p>3. Same; Declarations in Absence of Party. — Declarations made by a third party, in the absence of the party against whom they are offered, are, as a general rule, inadmissible.</p> <p>4. Execution; Proceedings by Claimant; Evidence. — The title of the execution creditor being dependent upon whether or not the title to the property was in the execution debtor at the time of the levy, it was immaterial whether the execution creditor knew or did not know that the claimant was asserting title to the property at the time the execution debtor obtained goods of his creditor, and evidence of such facts was inadmissible.</p> <p>5. Fraudulent Conveya/nce. — A. sold B. a horse and took a purchase money note; B. surrendered the horse to' A. in settlement of the note; Held, not a fraud upon- B’s other creditors.</p>

Motion to Enter Satisfaction of Judgment. Appeal from Henry Circuit Court. Heard before Hon. H. A. Pearce. Action by T. B. Hickman against J. M. Pilcher, in Avhich plaintiff had judgment. Defendant appeals from an order denying a motion to have the judgment satisfied and to quash a supersedeas granted defendant. — The word judgment includes all that is recovered in the suit, whether it be cost, debt or damages. — § 1880, Code 1896.

<p> Mechanic’s or Material Mem’s Lien. </p> <p>Appeal from Colbert Circuit Court.</p> <p>Heard before I-Ion. Ed. B. Almon.</p> <p>Action by the Tuscumbia Roofing & Plumbing Company against Olivia Saunders. Prom a judgment for plaintiff, defendant appeals.</p> <p>This was an action to enforce a lien for work and labor done and material furnished in repairing certain machinery and building alleged to belong to defendant and her husband, T. C. Saunders. The defense relied on is set up in special plea as follows: “That she never made any contract with plaintiff for the material or work and labor mentioned in said cause of action, nor authorized her husband to do so, and had no knowledge or notice that the material had been furnished and the ■work and labor done until long after its performance, and it was all done by her husband without her knowledge and consent, and that the plaintiff gave credit to her husband alone for said material and said work done.” The defendant requested the following written charges: “(1) That if T. 0. Saunders, the husband of the defendant made the contract with Bernhardt in his own name, and not as agent for his wife, and that credit was given solely to the husband, T. C. Saunders, the jury must find for the defendant. (2) That in order for plaintiff to recover in this case he must show that there was a contract either with the defendant or with T. 0. Saunders as her authorized agent, and if the contract was not made with defendant or with T. G. Saunders as her agent, but with T. C. Saunders individually, then the jury must find for the defendant. (3) That unless the evidence in this case shows that the contract was made with Olivia Saunders the jury must find for the defendant. (4) The proof in this case, shows that Mrs. Saunders never authorized Mr. Saunders to have the work done that is sued for in this case. (5) Affirmative charge. (6) If the plaintiff in this case gave the credit to T. C. Saunders for the work he did, you should find for the defendant. (7) There is no proof that Mrs. Saunders ever ratified any contract for the work in this case.”</p>

Contest of Will. Appeal from Tallapoosa Probate Court. Heard before Hon. Jas. W. Strother, Special Judge. Petition by E. B. Rainey for the probate of a copy of the last will of Martha Ridgway, deceased, to which Ella Ridgway and others filed objections. Prom an order denying probate of the will, petitioner appeals. E. B. Rainey filed in the probate court of Tallapoosa county what purported to be a copy of the will of Martha Ridgway, alleging tlie loss of the original will.

New Trial. Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. This was an action brought by the appellants against appellee for damages for injury to eight head of mules and horses while in the possession of the defendant as a common carrier and during the transit thereof. There was considerable pleading in the case unnecessary to be here set out.

<p> Motion to Retaos Gosts. </p> <p>Appeal from Jackson Circuit Court.</p> <p>Heard before Hon. A. H. Alston.</p> <p>Motion by Charles L. James, administrator, against Lem Vickers and others, under Code 1896, § 1341, for relaxation of costs. From a judgment denying the motion, movant, appeals.</p>

<p>1. Evidence; Eandioriting; Opinion of Eon-expert. — .One acquainted with the handwriting oí a person may give his opinion as to whether a signature is in the handwriting of such person, though a non-expert; but a non-expert witness may not, like handwriting experts, give his opinion as to the genuineness of the signature from .a comparison of such signatures with the admittedly genuine signature of the person.</p> <p>2. Witnesses; Competency; Transaction with Decedent; Eandiorit-ing. — A person having a claim against decedent’s estate, based on an alleged .writing of decedent, is not competent to give his opinion that the -signature is that of clecédent,' as this falls* within the prohibition against testimony of transactions with the decedent. ■ • .</p>

<p> Proceedings to Compel Mining Company to Maintain Ttoo Openings in Its Mimes. </p> <p>Appeal from Bibb Circuit Court.</p> <p>.Heard before H'on. B. M. Miller,</p> <p>Proceedings by John M. Gray, chief mine inspector, to compel the Howells Mining Company to construct and maintain two openings into its mine. Judgment for plaintiff, defendant appeals. Affirmed.</p> <p>— For a proper construction of the statute under consideration the court’s attention is called to the following authorities: Morton v. Mobile,.43,Ala. 298; Mamoell v. The State, 89 Ala. 150; Hamilton v. Bathbone, 75 U, ,S. 421; .Gardner v. Collins, 2 Pet. 93; 26 A. & E. Ency. of Law, pp. 597-8 and note; Tynan v. Walicer, 95 Am. Dec. 152; United States v. Trams. M. F. Asso., 166 U. S. 318.</p>

Carrying on Business Without Procuring City License. Appeal from Colbert Circuit Court. Heard before Hon. E. B. Almon. W. M. Mefford was convicted before the recorder, of tbe city of Sheffield for violating a city ordinance by engaging in the business of wholesale dealer in kerosene oil Avithont a license. He appealed to the circuit court of said county and he Avas again convicted and from which he prosecutes this appeal.

Contest of Stock Load Election. Appeal from St. Clair Probate Court. Heard before Hon. W. S. Foreman.- Contest of stock law election begun by George C. Bea-’ son and others against Jesse M. Shaw and others. The facts sufficiently appear in the opinion of the court. From a judgment dismissing the contest contestants appeal. — Section 7 of the general stock law election, Acts 1903, provide for the contest. Sections 1686 and 1697, Code 1896, provide the machinery.

Certiorari of Stock Lmo Petition from Commissioners’ Court to Circuit Court. Appeal from Tuscaloosa County Court. Heard before Hon. H. B. Foster. Certiorari by J. W. Mayfield and otters .against tbe court of county commissioners of Tuscaloosa county. From an adverse judgment, petitioners appeal. — Tbe contention of appellant is, that tbe order of tbe commissioners’ court is void on its face and should be vacated.

Petition by Administrator for Sale of Lands for Payment of Debts. Appeal from Autauga Probate Court. Heard before Iíon. G. S. Livingston.

Petition by Minor to Have Glorie and Register Poaj to Her Money Collected on Judgment in Her Favor. Appeal from Birmingham. City Court. Heard before Hon. Charles A. Senn. Action by Mamie Collins, an infant, by her next friend, against John S. Gillespy, as clerk of the city court of the city of Birmingham. From a judgment sustaining demurrers to the petition, plaintiff appeals.

Murder. Appeal frofii Clarke Circuit Court. Heard before Hon. S. H. Sprott. Tutt Du Bose was convicted of murder in tbe first degree, and be appeals. Tbe witness Parker was called for tbe state, and testified to tbe killing, and as to tracks leading from near the place of tbe killing to and from a small tree near tbe road, and about 20 or 30 feet from where deceased was found lying after tbe shooting.

Murder. Appeal from Tuscaloosa County Court. Heard before Hon. H. B. Foster. Bud Taylor was convicted of manslaughter in the first degree and sentenced to three years in the penitentiary. From this conviction he appeals. The facts upon which the opinion is rested sufficiently appear therein. — The question presented by the record has been decided against appellant’s contention. — Turner v. State, 97 Ala. 57; J ones v. State, 137 Ala. 12.

Murder. Appeal from Cullman Circuit Court. Heard before Hon. D. W. Speaks. Millard M. Gregory was convicted of murder in the second degree, and appeals. The defendant was indicted for killing Bill Mann by shooting him with a pistol, convicted of murder in the second degree, and his punishment fixed at 12 years in the penitentiary.

Murcler. Appeal from Marshall Circuit Court. Heard before Hon. James A. Bilbiio. E. Monroe Carwile was convicted of murder,in the first degree. At the trial a list of fifty persons were drawn as a special venire.

Murder. Appeal from Chambers Circuit Court. Heard before Hon. S. L. Brewer. The character of the offense for which the defendant was tried and the sentence of conviction sufficiently appear from the opinion.

Murder. Appeal from Limestone Circuit Court. Heard before Hon. Joseppi H. Nati-ian. Surry Allen was convicted of murder in the second degree, and he appeals. The following charges were refused to the defendant: “(G) I charge you, gentlemen of the jury, that the mere fact that this defendant killed1 Jim Allen at the time testified about does not meet or equal the measure of proof required by law to establish the guilt - of this defendant.

Assault With Intent to Murder. Appeal from Macon Circuit Court. Heard before Hon. S. L. Brewer. • Bob Cox ivas convicted of assault with intent to murder, and lie appeals.

Assault With Intent to Murder. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Prom a conviction of assault with intent to murder Clay Peppers prosecutes this appeal. The facts upon which the opinion is rested sufficiently .appear therein. — If the true bill is found by the grand jury not regularly organized the indictment cannot be maintained. — Hall v. Tlie State, 134 Ala. 110.

<p> Assault With Intent to Murder. </p> <p>Appeal from Walker Law and Equity Court.</p> <p>Heard before Hon. T. L. Sowell.</p> <p>The defendant was indicted, tried, and convicted for an assault with intent to murder Jack Harris, and his punishment fixed at two years in the penitentiary.</p> <p>Upon the trial Dr. Stovall- was called as a witness, and testified that he was a practicing physician and had been so for a number of years; that he knew Harris, and was called to see him about June 10, 1905, in Walker county, Ala.; that when he got there he examined him, and found that he was cut by a knife or some sharp instrument in about 14 or 15 places; that some of the wounds were painful, and some light. He then proceeded to describe the various wounds on the body. He was permitted, over the objection of the defendant, to testify that he sewed up part of the yvounds, and was also permitted to testify that Harris was not bleeding-very much when he got to him, but that he had been bleeding- a good deal, and was very bloody. He was also permitted to testify that Harris was not very much exhausted when he reached him, but was very weak from loss of blood. The witness Meyers -was also allowed to testify that just • after the cutting Harris was very bloody.</p> <p>The witness Steadman testified that, “about one-quarter of a mile from where the cutting occurred, the defendant came by my house between sundown and dark, and while talking to me said that he had cut Harris’ throat, and stated, further: ‘I told you there would be trouble down here.’ ” The solicitor then asked him if, before the difficulty occurred, witness had ever heard defendant say anything about there being trouble there about Hilliard. There was objection to the question, which was overruled, and witness answered: “We were talking one day a short while before it occurred, and defendant said that there was going to be some trouble about there some day.” On cross-examination the witness testified that, some month or two before the difficulty occurred, he and the defendant were together and were discussing the facts that several people had gotten off the train at Hilliard, drinking and cutting up, and the defendant remarked in that conversation that, if such was not stopped, there would be trouble there some day. Whereupon the defendant moved the court to exclude what witness had said about defendant’s predicting that there was going to be some trouble. about there some day. The court overruled the motion, and the defendant excepted.</p> <p>The testimony of the state tended to show that the defendant and Harris had gone from Jasper to Hilliard on the train, and, after getting off the train at Hilliard, were “walking along jowering,” as the Avitnesses put it, when one or the other proposed a fair fight, and the other agreed, whereupon Harris put doAvn his bundles, held up his hands and said he had no Aveapon in them, and defendant also stated that he had no weapon, but immediately rushed upon Harris and cut him with a knife some 14 or 15 times. The testimony of the defendant tended to shoAV an assault by Harris on him; that he backed some 8 or 10 steps, until he got up against a tree that had fallen doAvn and could not go any further back; that thereupon Harris threw his right hand back- and ran it under his overalls, and said that he would shoot the defendant, AAdiereupon defendant threw down his bundles, jerked out his knife, and commenced cutting him.</p> <p>At the request of the state the court gave the following charges: “(1) The court charges the jury that the interest the defendant has in the case may be considered by them in weighing his own testimony. (2) The court charges the jury that, even though they should find from the evidence that, at the time Cebe Wright cut-John Harris, he (Cebe Wright) was in imminent danger of his life, or of suffering great -bodily harm, or that the circumstances attending the assault were such as to impress the mind of a reasonable man that the defendant was in actual danger, yet if they also believe from the evidence beyond a reasonable doubt that the defendant entered into the difficulty willingly, and he was not without fault in bringing on the difficulty, then his plea of self-defense must fail. (3) The court charges the jury that in cases of assault with intent to murder the law presumes malice from the use of a deadly weapon, and casts on the defendant the onus of repelling' the presumption, unless the evidence which proves the assault shows also that the assault was perpetrated without malice; and whenever malice is shown, and is unrebut-ted by the circumstances of the assault or by other facts in evidence, then there ca.n be no conviction for any less offense than assault with intent to murder. (4) The court charges the jury that a doubt, to justify an acquittal, must be reasonable. It must be an actual and substantial doubt, not a mere possibility or speculation. A reasonable doubt is not a mere possible doubt, because most things relative to human affairs and depending on moral evidence is open to some possible or imaginary doubt.”</p> <p>The defendant requested a number of charges, the following of which the court refused: “(14) It is not necessary that there should be actual danger of death or bodily harm in order to justify the taking of human life; but, if the jury are satisfied from all the evidence in the case that the circumstances attending the cutting were such as to impress the defendant with a reasonable belief that at the time of the cutting it was necessary in order to prevent death or great bodily'harm to his person, then the jury may acquit the defendant, unless they further believe that the defendant was not free from fault in bringing on the difficulty.” “(16) If the accused, with no intention of bringing on the difficulty, approached the deceased in a peaceable manner, and the deceased made the first hostile demonstration by drawing or attempting to draw a weapon, or by appearing to do so, the appearance coming within the rule declared above, and if the accused was in such proximity to the deceased as to render it hazardous to attempt flight, or if the assault was made with a deadly weapon, and was open and direct and in perilous proximity, then the law could not require the accused to endanger his life or safety by attempting flight. (17) I charge you, gentlemen of the jury, that in this case, under the evidence, the burden is upon the state to show that the defendant was not free from fault, in bringing on the difficulty.” “(21) The court charges you, gentlemen of the jury, that it is not necessary that there should be actual danger of death or great bodily harm in order to justify the taking of human life; but, if the jury are satisfied from all the evidence in the case that the circumstances attending the cutting were such as to impress the defendant with a reasonable belief at the time of the cutting that it was necessary in order to prevent death or great bodily harm to his person, then they must acquit the defendant.”</p> <p>— The court erred in permitting witness Stedman to testify as to what the defendant said as to there being trouble at Hilliard some day. — King v. The State, 89 Ala. 146; 140 Ala. 103. The court erred in refusing to give charge 2 requested by the defendant.- — Kennedy v. Tha State, 140 Ala. 1. Charge 16 should have been given. — Be Arman v. The State, 71 Ala. 353. Charge 34 was a proper charge. — Kennedy v. The State, sv/pmj Thomas v. The State, 106 Ala. 22.</p> <p>— The court committed no error in giving charge 1 for the state, neither was there error in charge 2. — 1 Mayfield’s Digest, 807. Charge 3 was correct. — Harlmess v. The State, 129 Ala. 71; SherHll v. Tha State, 128 Ala. 5. Charge 4 for the state was correct. — Pitts v. The State, 140 Ala. 71. Charge 14 was properly refused. — Good-loyn v. The State, 102 Ala. 87; Webb v. The State, 100 Ala. 47. Defendant’s charge 17 was also properly refused.- — Pugh v. The State, 132 Ala. 1. The court did not err in reference to the admission of Stedman’s testimony. — Ford v. The State, 71 Ala. 396; Evans. v. The State, 62 Ala. 6; Jones v. Tha State, 76 Ala. 8;' Anderson v. The State, 79 Ala. 5.</p>

Rape. Appeal from Monroe Circuit Court. Heard before Hon. John T. Laoi-cland. The defendant was indicted, tried and convicted of the offense of rape, alleged to have been committed on one Ver da Puryear.

Rape. Appeal from Washington Circuit Court. Heard before Hon. Samuel B. Browne. Sam Boykin was convicted of rape, and sentenced to the penitentiary for a period of ten years. From this judgment he appeals. The facts upon which the opinion is rested sufficiently appear therein. — The hill of exceptions sets out all the evidence, and there is no proper proof of venue.

Assault With Intent to- Ravish. Appeal from Butler. Circiut Court. Heard before Hon. J. C. Richardson.. The defendant was indicted tried and convicted for an attempt to forcibly ravish a woman.

Assault With Intent to Ravish. Appeal from Monroe Circuit Court. Heard before Hon. J. T. Lackland. The defendant was indicted, tried, and convicted for an assault with intent to ravish one Tiny Collins.

Robbery. Appeal from Tuscaloosa County Court. Heard before Hon. H. B. Foster. From a conviction for robbery from the person Jim Mitchell appeals.

Burglary. Appeal from Montgomery City Court. Heard before Hon. W. H. Thomas. Will Dupree ivas indicted for the burglary of Greil Bros. Co.’s store. The evidence tended to show that on the night of the burglary the store was closed, and how and when it was closed was shown by Owens. The nest morning the lock on the back door next to the freight-house of the Louisville & Nashville Bailroad Company was broken.

Selling Liquor Without License. Appeal from Bessemer City Court. Heard before Hon. William Jackson.

Selling Liquor Without a License. Appeal from Marengo Circuit Court. Heard, before Hou. John C. Anderson. Tlie defendant was indicted and convicted for unlawfully selling liqnor witbin eight miles of the courthouse in Marengo county, Alabama.

<p> Selling Liquor Without License. </p> <p>Appeal from Lamar Circuit Court.</p> <p>Heard before Hou. S. H. Sprott.</p> <p>Charlie Mills was convicted of soliciting or receiving an order for spirituous,, vinous, or malt liquors within the limits of a district in which the sale of such liquors was prohibited, to be shipped or sent into such district, and he appeals.</p> <p>The indictment was in the following language: “The grand jury of said county charge that before the finding of this indictment Charlie Mills sold spirituous, vinous, or malt liquors without license and contrary to law. (2) That Charlie Mills, within the limits of a district in which the sale of spirituous, vinous, or malt liquors was prohibited by law, did solicit or receive from Fred Vaugh an order for spirituous, vinous, or malt liquors, to be shipped or sent into such district.” (3) Same as count 2, except it is charged that the order was received from Dal Eaton.</p> <p>■ The evidence for the state tended to show that Dal Eaton went into the barber shop of defendant, where was located the office of the telephone line from Mills-port, in Lamar county, to Payette, Ala., and told defendant to order him four quarts of whisky from Tom Johnson, in Payette, of a named brand. The defendant told Eaton to deposit $3 in an iron chest in the office, and when he had done so defendant went to the phone and ordered four quarts of the whisky mentioned to be shipped to featon at Millsport, Ala. It was shown that the phone line belonged to Tom Johnson. It was admitted that Millsport was a territory wherein the sale of liquors was prohibited. The evidence for the defendant tended to show that Eaton tried to order the whisky himself, but, failing to understand, had defendant to do the talking for him. It was further shown that defendant ivas the agent of the telephone owners, and that his business was to answer calls, go. after persons .wanted, and attend to the telephone business generally.</p> <p>The bill of exceptions states that “the defendant requested in writing the following charges, which were refused by the court, and the defendant separately and severally excepted to the action of the court in refusing to give each of said charges.” Then follows the affirmative charge and several other charges. The court gave at the request of the state these written charges: “(1) The court charges the jury that the state is not required to prove the defendant’s guilt beyond all doubt, but only beyond a reasonable doubt. (2) The court charges the jury that if they believe beyond a reasonable doubt that the defendant, Charlie Mills, within the limits of a district in which the sale of spirituous, vinous, or malt liquors was prohibited by law, did receive from Dal Eaton an order for spirituous, vinous, or malt liquors, to be shipped or sent into such district, and that this occurred in Lamar county, Ala., within 12 months before the finding of this indictment, then the jury are authorized to find the defendant guilty under the third count of the indictment.”</p> <p>— Under the facts in this case the orders received by Johnson were either accepted or refused at Fayette, the place -where sale of liquor is authorized by law. — Levy v. The State, 132 Ala. 91; Pilgreen’s Case, 71 Ala. 368; Newman v. The State,. 88 Ala.. 115. The court erred in refusing charges 1 and 3 as the evidence showed no violation of law. The court should have given charges 2 and 5. — DuBose v. The State, 87 Ala. 101; Campbell v. The State, 79 Ala. 271; Terrell v. The State, 138 Ala. 3. The court should ha ye granted a new trial in this cause. — Yeldell v. The State, 100 Ala. 26; Paglcr v. The State, 110 Ala. 11.</p> <p>Massey Wilson, Attorney General, for State. — No brief came to the reporter.</p>

Selling Liquor Without License. Appeal from Bessemer City Court. Heard before Hon. William Jackson. Jasper Guarreno was convicted of selling intoxicating liquors, and be appeals.

Selling Liquor on Sunday. Appeal from Montgomery City Court. Heard before Hon. W. H. Thomas. The Beauvoir Club was convicted of 'keeping open its clubroom for sale of intoxicating liquors on Sunday, and it appeals. Tbe indictment is set out in tbe opinion. Demurrers were interposed as follows: “(1) Said.indictment fails to state at tbe time of tbe commission of tbe offense charged tbis defendant was a merchant or shopkeeper.

Carrying Concealed Pistol. Appeal from Cleburne County Court. Heard before Hon. T. A. Johnson. W. A. Burgess was convicted of carrying a concealed weapon, and be appeals. Defendant filed a special plea setting up that tbe statute required tbe court to be beld in tbe conrtbouse of Cleburne county; whereas, tbe case was being tried and tbe court being beld in tbe Masonic Hall, in tbe town of Heflin. Tbe special plea was stricken from tbe files as being frivolous.

Carrying Concealed Weapons. Appeal from Pike Law Court. Heard before Hon. A. H. Owens. John Brown was convicted of the offense of carrying a pistol concealed about his person, and appeals. The facts on which the opinion is rested, sufficiently appear therein. —The charge of the court is not improper. — § 4420, Code 1896; Shorter v. The State/ 68 Ala. 129.