Volume 149 — Alabama Reports

<p> Attempt to Escape. </p> <p>1. jtilscape; Indictment; Punishment. — Construing together Secs. 4707, 4710, 4461 and 4462, it is held that an indictment that charges that the defendant, having been convicted of grand larceny and sentenced to the penitentiary, did- attempt to escape before the expiration of his sentence from the county jail where he was held in custody under authority of law, charged the offense defined in Section 4707, and punishment should have been imposed under that Section, and not under Section 4710. (•overruling Bradford v. The State, 146 Ala. 150, 41 South. 471.)</p> <p>2. Criminal Lato; Sentence; Conformity to Charge. — A sentence imposing punishment under Section 4710, although the conviction was had under an indictment clmrging the offense defined by Section 4707, being within the period of limitatation as to time prescribed by Section 4707, is not void or erroneous.</p>

Heard before Hon. John T. Lackland. Tbe defendant was charged with assault with intent to murder one Johnson. It appears from the evidence that the defendant and the person assaulted were once husband and wife. The other facts sufficiently appear in the opinion. The court refused to give the defendant the following written charges: (1) General affirmative charge, with hypothesis.

Heard before Hon. S. H. Sprott. Tbe defendant was indicted, tried, and convicted for killing Callie Cleveland by cutting her with a knife or other sharp instrument to the grand jury unknown.

Heard before Hon. S. H. Sprott. Tbe defendant was indicted for murder in tbe first degree, tried, convicted of murder in tbe second degree, and sentenced to tbe penitentiary. He entered a motion to quash tbe indictment because preferred by a grand jury drawn by persons not authorized by law to draw grand juries.

Heard before Hon. A. H. Pearce. The defendant ivas indicted and tried for killing Dave Bell by shooting him with a pisto.1. The errors assigned as to the refusal of the court to quash the special venire sufficiently appear in the opinion.

Clair Circuit Court. Heard before Hon. John Pelham. W. F. Ferguson was convicted of manslaughter in the first degree, and fie appeals.

Heard before Hon. D. A. Greene. Henrietta Nelson was convicted of homicide and appeals. There is no rule of law or practice requiring that the names of witnesses be put upon the indictment. It is impossible for the court to say whether the several charges were special written charges requested by the defendant or not. Assuming that charge 21 was a special written charge its refusal was not error. — Mitchell v. The State, 133 Ala. 55.

Heard before Hon. John T. Lackland. Sam Wright was convicted of murder in the second degree and appeals. - The errors complained of sufficiently appear in the opinion of the court. No brief came to the reporter.

<p> Stealing Ride on Train. </p> <p>1. Criminal Law; Appeal; Questions Presented for Review. — In the absence of a recital in the record proper of the court’s action on the demurrers, the statement in the bill of exceptions that the court overruled the demurrers does not present such action for review.</p> <p>2. Same; Reserving Einceptions to Charges. — The bill of exceptions recites that appellant requested four charges and sets them out, and then recites that the defendant duly excepted to the refusal of the court to give them. Held, a request in bulk and not available if any one charge is bad.</p> <p>3. Unlawfully Riding on Train; Evidence. — Evidence in this case held sufficient to authorize a conviction for unlawfully being on train without consent of train operators with intent to be transported free.</p> <p>4. Criminal Loao; Evidence; Burden of Proof; Negative Ave¡rments. The burden of proving the negative averments of the affidavit that the person was not in the employment of tñe railroad and tñat ñe was riding witñout authority from the conductor or engineer is not upon the state, such facts being particularly within the knowledge of the defendant.</p>

Heard before Hon. J. C. Richardson. Tlie defendant was indicted, tried, and convicted on the charge of perjury. The evidence was. in conflict as to whether or not the defendant gave the testimony that the indictment alleges he gave, and as to whether or not it was true or false.

<p>Violating Section 5368, Gode of 1896.</p> <p>1. Street Railroads; Operation; Regulation. — Section 5308, Code 1890, does not apply to a street railway.</p> <p>2. Criminal Lato; Appeal; Presumption. — Where it appeared that the railroad was being operated by a street railway company, and there was no affirmative evidence to the contrary, it will be presumed on appeal that the road was a street railway, and that the prosecution under the statute, was not within the terms of the statute.</p>

Heard before Hon. A. H. Owens. The defendant was indicted for petit larceny, the taking of a ring of the value of $15. The evidence tended to show that Evelina Bradberry got a ring, which was found by her little grand-daughter, and that she had had the same for two or more years; that she had made no secret about having it; that she and her son often wore the ring.

Heard before Hon. T. L. Sowell. The indictment alleged that Ab Perry, Simon Garret, and Arresto Weems did willfully injure or deface a dwelling house, the property of J. J. Earnest, against, etc. Demurrers' were interposed as follows: “It does not charge any offense known to the laws of the state of Alabama. (2) It does not allege that the house alleged to have been defaced belonged to J. J. Earnest.

Heard before Hon. William Jackson. Tbe indictment in this case was as follows (after usual caption) : “That Will Daniel sold spirituous, vinous, or malt liquors without a license and contrary to law; (2) that Will Daniel did give away or otherwise .dispose of spirituous, vinous, or malt liquors without a license and contrary to law; (3) that Will Daniel did unlawfuily sell, give away, or otherwise dispose of spirituous, vinous, or malt liquors, or other intoxicating…

Heard before Hon. W. H- Thomas. Oliver Dinkins was convicted of selling liquor without a license, and appeals. The court erred in giving the affirmative charge for the state. At most it was a question to be submitted to the jury as to whether the defendant was guilty. — Tinker v. The State, 90 Ala. 647; Aired v. The State, 89 Ala. 112; Brantley v. The State, 91 Ala. 47; Hinton v. The State, 132 Ala. 29.

Heard before Hon. A. D. Sayre. Appeal from a judgment and order of the city court of Montgomery on habeas corpus, denying the writ. Held: and he must be discharged. — Ex Parte Sterns, 104 Alá. 97.

Heard before Hon. I. B. Slaughter. Habeas corpus by Lou Weinard to obtain her release from custody under a sentence ordered on a conviction of selling liquor without a license. From a judgment denying the writ, she appeals.

Appear from Gadsden City Court. Heard before Hon. J. H. Disque. Tlie defendant' Avas indicted, tried, and convicted of using abusive, insulting, or obscene language in the presence of a Avcman.

Heard before Hon. T. L. Sowell. The prosecution is this case was commenced by affidavit before one L. C. Kelly, a justice of the peace in Walker county.

Heard before Hon. S. L. Weaver. Emmett Moore was indicted, tried and convicted of grand larceny. He was sentenced to two years hard labor for the county, and an additional term to pay costs, the judgment entry thereon sufficiently appearing-in the opinion of the court. No brief came to the reporter.

Appear, from Coosa Chancery Court. Heard before Hon. W. W. Wi-iiteside. Bill by Susan P. Maxwell against Rosa Herzfeld and others.

Heard before Hon. R. B. Kelly. Bill by Fannie A. Pouty against the Alabama Great Southern Railroad Company. This was a bill in chancery to abate a unisance and to recover damages on account thereof. The pleadings and amendments are sufficiently set out in the opinion, and the facts upon which the opinion is rested sufficiently appear therein The bill is multifarious. — Alexander v. Alexander, 85 Va. 353; Fielder v. Davis, 17 Ala. 125; Meacham v. Williams, 9 Ala. 817.

<p> Bill to Foraclose Mortgago. </p> <p>1. Limitation of Action; Part Paymenti — The payment of interest on a note secured by a mortgage relieved both note and mortgage from the operation of the statute of limitations.</p> <p>2. Mortgages; Equitable Mortgage; Intention of Parties. — Although a conveyance may fail as a mortgage in conveying the legal title, where it is shown that it was the intent of the parties to the instrument that it should operate as a lien on certain land to secure the payment of borrowed money a court of equity will give such instrument effect as an eqiutable mortgage.</p> <p>3. Tenancy in Common; Adverse Possession; Hostile Character.— "Where four persons own laud as tenants in common, and two of them agree among themselves upon a division of the land between themselves, no change of title is effected, and the continued possession of one part of the- land by one of the parties to the division, without actual ouster of his co-tenants, does not constitute an adverse holding as to mem.</p> <p>4. Same; Judicial Sale; Notice of Change of Ownership. — The undivided interest of one of the tenants in common was sold under execution at a sheriff’s sale. The share was purchased by a op-tenant, who conveyed it to the wife of the execution co-tenant. The conveyance to the wife was not recorded and she and her husband continued to occupy the land just as before the sale of the husband’s interest, and its conveyance to her. Held, there was not such notice of change of ownership or possession as to entitle the wife to claim any right by ad- ■ verse possession.</p> <p>5. Schools and School Districts. — School Funds; Divestment; Retroactive Statutes; Curative Acts. — If no contract or vested rights are violated or impaired the ulttra vires act of the school commissioner in making a loan on real estate is remedied by an act of the legislature ratifying the same, where the legislature has power in the first instance to authorize school commissioners to make a loan on real estate.</p> <p>C. Constitutional Load; Impwiring Obligation of Contracts. — The Act of March 2, 1901, (Acts 1900-01, p. 2070) affords a remedy for the enforcement of the contract instead of destroying or im- ' pairing the remedy, and hence is not violative of article 4, section 50, Constitution 1875.</p> <p>7. Statutes; Amendments; Constitutional Requirements. — Article 4, Sec. 2, Constitution 1875, applies only to amendments, which without the presence of the original act, are unintelligible, and hence, the act of March 2, 1901 (1900-01, 2070) is not repugnant to or violative of the Constitution, either as to its amendment or that it shall contain but one subject which shall be dearly expressed in the title.</p> <p>8. Schools and School Districts; Offices; Ultra Vires Contract; Curative .-Lei. — Sections 3 and 4 of the Act of March 2, 1901 (Acts 1900-01, p. 2070) ratify the ultra vires act of the commissioner in making the loan in this instance, and empowers their successors, the trustees, to enforce the loan contract.</p>

<p> Bill to Foreclose, Mortgage. </p> <p>Mortgages; Right of Foreclosure. — The land conveyed in trust to secure the bonds was encumbered with a prior lien, and the mortgagor made a money deposit with the trustee to protect the bondholders against the lien. The trustee invested the deposit in some of the bonds secured by the deed of trust. After-wards the mortgagor assigned the bonds so purchased by the trustee. Held, the assignee of the bonds became a bondholder with all the rights pertaining thereto, subject, only to the equities of the other bondholders, arising out of the purpose of the deposit, and such assignee had the right to have the trust deed foreclosed, the property sold, and after the payment of the costs, prior encumbrances and the amount due on the bonds held by other bondholders, the proceeds applied to the payment of the bonds held by him.</p>

<p>Appeal from Morgan Chancery Court.</p> <p>Heard before Hon. W. II. Simpson, Chancellor.</p> <p>Bill by O. A. Oliver, as trustee in bankruptcy, against Brock & Spight and others.</p> <p>The bill in this ease was filed by Oliver, as trustee in bankruptcy for B. A. Nichols, whom the hill alleges was adjudged a bankrupt on February 15, 1904. The bill alleges an execution of a mortgage by Nichols to Brock & Spight, covering all of his property except his merchandise, and assignment by said mortgage of a large number of his notes, mortgages, and dioses in action, and in the year 1903 a chattel mortgage on all his notes and mortgages given for supplies furnished; including all the accounts and notes not included in a list furnished said Brock & Spight the previous year. It is alleged that the mortgage recited an indebtedness of $2,000, which was not then owing and was to fall due October 15, 1903, and was designed to cover every debt that might accrue to Nichols through sales of merchandise and otherwise, and every other article than merchandise, yet allow Nichols the unrestrained use, disposition, collection, and enjoyment of the proceeds. It is alleged that Nichols paid hut little, if any, of his indebtedness, except to Brock & Spight- bnt instead added to his liability ,and yet paid said Brock & Spight a large amount* in excess of their said mortgage. The amounts and dates of the payment are set out in the bill and it is alleged that they were all made within the four months prior to the declaration of bankruptcy. It is also alleged that the estatfe is insolvent and the already proven debts are greatly in excess of the assets of the estate. Motion was made to dismiss the bill for want of equity, and demurrers were interposed to the bill. The motion and demurrers were overruled, and from this decree this appeal is prosecuted.</p> <p>Advances made in good faith to a debtor to carry on business on security taken at the time do not violate either the terms or the policy of the bankrupt act. — Darby v. Boatman, 1 Dillon 141; 5 Cyc. 289. Payments made by the debtor at various times to one who has made advances to an insolvent debtor, not knowing of his insolvency to enable him to carry on his business are not preferential under the bankrupt act. — Jaquith v. Alelen, 189 U. S. 78.</p> <p>The destruction of the mortgaged dioses, and the dissipation and confusion of the proceeds, rendered the creditors merely creditors without a lien. — Iron cG Supply Oo. v. Roiling Mill Go-., 11 Am. Bankruptcy Bep. 202; 1.25 Fed. Bep. 974; American Limber Go. v. Taylor, 14 Am. Bankruptcy Bep. 231; 137 Fed. 321.</p> <p>The mere fact that Nichols was insolvent conclusively shows a preference; and knowledge of the insonvenev is reasonable cause to believe a preference was intended, whether they did believe it or not. — Toof v. Martin, 80 U. S. 40; 2Ó L. Ed. 483; Buchanan v. Smith, 83 U. S. 310; 21 L. Ed. 286; Collier on Bankruptcy, 5th Ed. 459; Lovelady on Bankruptcy, 468; In Re Virginia Uardwoocl Mfg. Go., 1.5 Am. Bankruptcy Bep. 138; 139 Fed. 209. ' '</p> <p>It is immaterial whether the debtor actually intended any preference or not — infra, 9-10; Western T. cG T. Co-. v. Brown, 12 Am. Bankruptcy Rep. 116; 129 Fed. Rep. 728; Pirie v. Chicago T. & T. Co., 182 IT. S. 438; Benedict v. Deshel, 11 Am. Bankruptcy Rep. 25; 177 N. Y. 1; Collier on Bankruptcy, 5th.Ed. 459-460; In Re Phillip Jacóbs, 1 Am. Bankruptcy Rep. 524.</p> <p>Trustee need not represent claims older than preferential payments. — Collier on Bankruptcy (5th Ed.) 461; Anniston Case, sv/pra-; In Re Marine Construction & D. D. Co-., supra; Bankrupt Act, Sect. 60, subdivision B; Beers v. Hanlin, 3 Am. Bankruptcy Rep. 746. The-retention, use, collection and conversion of the mortgaged property by the debtor, as well as the commingling of the whole, rendered the mortgage fraudulent, infra 13-16; In Re Marine Const. cG D. D. Co-., 14 Am. Bankruptcy Rep'. 475, 130 Fed. 446; Means v.' Dowd, 128 U. S. 273; 32 L. Ed. 435.</p> <p>The power over use and enjoyment of the mortgaged property, by the mortgagor, determines the fraudulent character of the instrument, wholly apart from the property itself. — In Re Marrne Const. & D. D. Co., supra; Christian cG. Craft Gro. Co-, v. Michael, 25 So-. Rep. 573; Cross v. Berry, 31 So-. Rep. 36; Bcmk v. McDonnell, 87 Ala. 743; Robinson v. Flliott, 89 U. S. 513, 22 L. Ed. 763. The mortgage was fraudulent even as to subsequent «'editors (and on this further ground it is immaterial whether trustee represented those to whom an indebtedness had accrued when preferential payments were'made or not. — Cro-ss v. Berry, 31 So-. Rep. 36, 1.4 Ala| 84; Christian, etc. v. Michael, 25 So-. 573, 32 Ala. 92; McDermott v. 1Hbon, 90 Ala. 261.</p> <p>Equity is the forum for redress, recovery of preferential payments and annullment of mortgage. — Bardes w Ban h, 44 L. Ed. 1.181, 178 IT. S. 531; Collier on Bankruptcy, 461-462 (5th Ed.) ; Wright v Skinner, 14 Am. Bankruptcy Rep. 501-502, 136 Fed. 694; Loveland on Bankruptcy, pages 488-489.</p>

Appeal, from Crenshaw Chancery Court. Heard before Hon. W. L. Parks.

Appear from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Steiner Bros, filed their bill against appellant, seeking to quiet title to certain lands described therein. After answer, defendant filed certain pleas, as follows: “(1) At the time of the institution of this suit the complainants were not in peaceable possession of the property described in the complaint.

Heard before Hon. W. W. Whiteside. Suit by Thomas R. Goodson against Irenus Stewart and others. The only question presented on this appeal is whether or not the appellant is entitled to have the thing in dispute protected by injunction until the title can be decided. This seems to be settled in favor of appellant. — Golemam & Davis v. Elliott, 40 So. 666; v High on Injunctions, See. 671 et seq; Deogan v. Neville, 127 Ala. 497; Jeromav. Ross, 11 Am. Dec. 500.

<p> Bill to Abate Recurring Injury Caused by Erection of a Dam. </p> <p>1. Injunction; Jurisdiction; Equity; Trespass. — Where a .single action at law will not furnish an adequate remedy, and a multiplicity of suits can be avoided by proceedings in chancery, equity has jurisdiction concurrent with courts of law to protect a land owner against constant and frequently recurring injuries from wrongful diversion of water, and will enjoin a wrong-doer without regard to his ability to respond in damages.</p> <p>2. Same; Retention of JwrisdAelion to Award, Damages. — Where equity has assumed jurisdiction of an action for injunction to restrain the wrongful overflowing of plaintiff’s land, the court will ascertain and award damages to the injured party in order to .settle the whole controversy.</p> <p>3. Same; Laches; Statute of Limitations. — Complainant is not barred by mere laches short of the period prescribed by the statute of limitations, where he is otherwise entitled to an injunction to prevent the overflowing of his land, caused by an increase in the height of a dam constructed by defendant.</p> <p>4. Water and Water Courses; Dam; Construuclion; Prescriptive Rights.- — A mill owner, who has maintained a dam at the height of four feet for several years, does not thereby acquire a prescriptive right entitling him to raise the height to seven feet; nor does the bar of the statute apply to the increased-height, unless the increase has existed for more than ten years.</p>

Heard before Hon. W. L. Parks. Bill by Joseph Rosenheim & Son against W. J. Brunson and others to set aside certain alleged conveyances and. to enforce a judgment lien on property conveyed. The burden is on complainants to show that Brunson is insolvent; that complainants are his creditors and that he executed the conveyance to defraud his creditors while insolvent.— Moog v. Farley, 79 Ala. 236.

Heard before Hon. A. D. Sayre. Bill by G. W. Barnett, et al., as tax payers, against tbe city of Montgomery, et al., to declare a contract for paying yoid and to enjoin paying any money therein.

Heard before Hon. A. D. Sayre. Suit by Aaron Bluthenthal and another against J. W. Epperson & Co. From a decree for complainants, de- fendant appeals. The case made bv the bill is: That orators áre large manufacturers and jobbers of whiskies, brandies, etc., and sell their goods to the retail trade in Montgomery.

Heard before Hon. W. L. Parks. Action by R. L. Theus against W. H. Harris and another. From a decree for plaintiff, defendants appeal. This was a bill filed by Theus against the Harrises for an injunction to restrain the said Harris from engaging in or carrying on the business of buying crude gum and distilling turpentine Avithin 10 miles of the town of Geneva.

Heard before Hon. W. H. Simpson. Bill by the Christian Church of Huntsville, Ala., and others, against Daniel Sommer and others. From a decree sustaining demurrers and a motion to dismiss for want of equity, plaintiffs appeal. This is a bill filed by the trustees of the Christian Church of Huntsville, Ala., against certain members of a church alleged to be an independent church and having no connection with or right to the eliurch building concerning which this bill is filed.

Heard before Hon. Alfred H. Benners. Bill by Kate Bell Schoolar against J. C. Mayfield and others. Prom a decree overruling defendants’ motion to dismiss the bill, they appeal. Counsel discuss assignments of error but cite no authority. No brief came to the reporter.

Heard before Hon. W. H. Simpson. Bill by Louisville & Nashville Railroad Company against Willie Emma Norwood to enjoin proceedings under a judgment at law and for the grant of a new .trial. The facts are sufficiently stated in the opinion of the court . There was a decree for complainant and respondent appeals. The judgment sought to be enjoined is confessedly valid. — State ex rel., etc. v. Spcahe, 38 South. 835.

. Heard before Hon. Alfred Benners. Bill to quiet title by Washintgon Poole against the City Loan & Banking Company.

Heard before Hon. W. L. Parks. Bill by Samuel Bradley’s heirs against L. W. Savage and others. From a decree overruling defendants’ motion to dismiss for want of équity and demurrers to the bill, they appeal. This is a, bill filed by several heirs of Samuel Bradley, deceased, seeking to be let in to redeem certain lands alleged to belong to them all as tenants in common.

Heard before Hon. H. B. Foster. Bill by B. T. Harper against tbe T. N. Hays Company and others. From a decree dismissing tbe bill, complainant appeals. B. T. Harper filed bis bill against tbe T. N. Hays Company, a corporation, H. W. Sloan, Annie G. Hays, individually and as administratrix of T. N. Hays, and Maud Webb, as an heir of T. N. Hays.

Heard before Hon. W. L. Parks. Bill by S. A. Spears against B. I. Taylor and others. This was a bill to enforce a vendor’s lien. The appellant filed the bill against the appellee and against H. H. Dowling & Co., Avho are alleged to have a mortgage on the land. The defense was that the lien Avas waived by taking personal security on the note for the deferred payment. Dowling’s defense was a Avant of notice and innocent purchaser without notice.

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. Alfred Benners.</p> <p>Bill by James M. Gillespie, administrator of the estate of John G. Gillespie, deceased, against James M. Gillespie, Jr., and others. From-a judgment for plaintiff, defendants appeal.</p> <p>This was a bill filed by the administrator of John G. Gillespie against a number of respondents, seeking to sell for division certain lands mentioned in the bill. The allegations are that John Gillespie was a resident of said county and died before the filing of the bill, and that his wife, Martha C. Gillespie, was dead, and that both died without issue. The heirs are alleged to be the brothers and sisters of the deceased, and the children of such brothers and sisters as are dead, all of whom, together with their interest in the land, are set out in the bill. It is further alleged that owing to the number of heirs and the smallness of some of the shares, together with the fact that about 75 acres of land is improved and the balance unimproved, and also the further fact that deceased had conveyed the mineral interest in part of said lands, an equitable division of the same cannot be made without sale, and that Mary Miller and others of said heirs desire the same to be sold. It is also alleged that the personal assets of the estate are more than sufficient to pay the claims and debts against the said estate and the cost of administration. The respondent James Gillsepie admitted the death of the owner of the land, but- asserted that before his death, and for more than ten years before his death, decedent had given him a certain 70 acres of said land, and that he had gone upon it and continued in adverse possession of the same for more than 10 years next before the filing- of the bill, and that he had occupied the same continuously as his own. The tendencies of the evidence are set out in the opinion. The chancellor decreed a sale of the land and the other relief prayed for, and also decreed that the respondent James Gillespie was entitled to a lien upon Ahe 70 acres of.land claimed by him for the present value of all improvements, betterments, and enhancements erected by him.</p> <p>The act of the uncle in giving- the land to the nephew and inviting him to improve it estopped the uncle and complainant from asserting any claim or own" ersliip in the land or from denying 'the defendant’s title thereto. — A. G. 8. R.'R. Go, v. 8. & N. R. R. Go,, 34 Ala. 570; Gotean v. 8onthern Ry. Go., 11S Ala. 554; Hoorne v. Pollack, 118 Ala. 617 ; Hendrix v. Kelly, 64 Ala. 388; 8. cG N. R. R. Go, .v. A. G. 8. R. R. Go., 102 Ala. 236; R. R. Go. v. Jones, 68 Ala. 48; Franklin v. Pollard Mill Go., 88 Ala. 318. The sufficiency of appellant’s plea not having been questioned, and being" suported by the testimony undisputedly, appellant was éntitled to a decree on it, notwithstanding the plea did not present a defense-—Tyson v. Decatur hand Co., 121 Ala. 414; Horn v. Detroit Dry Dock Co., 150 U. S. 610; Kennedy v. Gressloall, 101 U. S. 641; Fletcher’s Eq. P. & P. § 290.</p> <p>A parol gift of land creates a tenancy at will and the gift may he disaffirmed or revoked at any time unless barred by the statute of limitations under adverse holdings. — Coilins v. Johnson, 57 Ala. 306; Boykin v. Smith, 65 Ala. 294. Where the land is claimed under a parol gift accompanied by possession for more than ten years it requires more than the ordinary act of ownership to convert such possession into an adverse holding. — Barrus v. Meadows, 90 Ala. 140; Vandiver v. Stickney, 65 Ala. 224; Boykin v. Smith, siopra. Where a relation exists between the owner and the party in possession by which the possession is ref enrabie to' the title the li older of the title is justified in assuming' that the possession is subordinate thereto and held in recognition thereof until knowledge to the contrary is brought to him.— Trufant v. White, 99 Ala. 526; Baucum v. Jenkins, 65 Ala. 259. Under the facts in this case appellant’s title was not adverse and furnishes no room for the operation of the statute. — Trufant v. WJdte, supra; Boykin v. Smitlv, supra. Appellant was not a competent witness to prove the gift by the deceased. — Code 1896, § 1794; Boykin v. Smith, supra. The declaration of appellant to third person that the land was his was of no consequence in the absence of proof that he held the land adversely to the donor and that the donor had knowledge of the adverse holding. — Jones v. Palham, 84 Ala. 208; Butler v. Butler, 133 Ala. 377.</p>

Heard before Hon. A. D. Sayree. Bill by. Essie L. Reese against the city council of Montgomery and others. From a judgment overruling demurrers filed to the bill, defendants appeal. This was a bill filed by a resident citizen,.as the owner of property and a taxpayer, to restrain the issuance of certain bonds named therein, and to declare the ordinance authorizing their issuance null and void.

Heard before Hon. E. F. Ellsberry, Special Judge. Action by Chapman & Co., against W. H. Smith. From a judgment for plaintiffs, defendant appeals. The cause was not at issue on Monday, Nov. 7, and under the rules of practice governing the county courts would not be at issue until the following term and the court erred in render: ing judgment by default on Tuesday, the 8th of November. — Acts 1903, p. 537, § 3308, Code 1896. No brief came to the reporter.

Heard before Hon. A. A. Coleman. Action by Caroline I. Campbell -against James M. Gillespie, administrator. From a 'judgment for plaintiff, defendant appeals. The first count in the complaint was for $191, dne by the administrator as such by account made by decedent on the 5th day of October, 1903. The second count was on an account stated between plaintiff and decedent on the same day.

Heard before Hon. B. M. Miller. Action by J. B. Garber against H. T. Young and another for money had and received. From a judgment for plaintiff, defendants appeal.

Mobile Circuit Court. Heard before Hon. SaaCl B. Browne. Action by J. B. Torrey against D. Kraus. The court erred in permitting the witness to state that it took every cent of his income to support his family at the time the suit was instituted. This was a. conclusion. The court erred in refusing to permit plaintiff to show what Krauss was receiving at the time of the trial.- — Feihleman'v. Manchester F. Am>. Go., 108 Ala. 198; L. & K. R. R. Go. v. Hurt, 101 Ala. 44.

Heard before Hon, .Samuel B. Browne. Action by the Armour Packing Company of Louisiana, Limited, against Vinegar Bend Lumber Company. From a judgment for defendant, plaintiff appeals. This was an action brought by appellant against the appellee in the circuit’ court of Washington county, «(Hiking to recover the sum of $346.89 due by account. The canse was removed by agreement of parties to the circuit court of Mobile county.

Heard before Hon. William Jackson. Action by Owensboro Wagon Company against John A. nail. Judgment for defendant. Plaintiff appeals, and defendant takes a cross-appeal.

Heard before Hon. H. A. Pearce. Action by R. D. Cook against tlie Henderson-Boyd Lumber Company. From a judgment for plaintiff, defendant appeals. Action on the common counts for work and labor done.

Heard before Hon. O. J. Semmes. This was an action begun by appellant against Isaac Donovan and the individuals composing the firm of Luter Bros. The first count claims of the defendant $196.84 due by account.

Heard before Hon Samuel B. Browne. Action by Mary Harris against James K. Giennon. Judgment for plaintiff, and defendant appeals. The plaintiff’s right to maintain a common law action for the legacy coni cl only be supported by proof of assent to the legacy by the executor. — Bee. 344, Code 1896; Bonner v. Young, 68 Ala. 35;' Cow v. McKinney, 32 Ala. 4C5.

Heard before Hon. Samuel B. Browne. Action by Murray & Peppers against Charles C. Dickens. From a judgment for defendant, plaintiffs appeal. — The book was a book of 'original entry in contemplation of law. — Post r. Kennelson, 52 L. K, A: 577; Tilldns v. Baker, 6 Lans. 516; PcdJish v. Bctuerlee, 38 Am. Rep. 87; Jeffries v. Urmy, 3 Houst. G53; Curtis v. Bradley, 38 L. R. A. 144; Bolling v. Fannin,, 97 Ala. G19; Alabama Construction Go. v. Wagnon Bros., 137 Ala. 389.

Heard before 1-Ion. A. A. Evans. Action by the Clayton Hardware Company against J. H. Norton. Judgment for plaintiff. Defendant appeals. The facts in this case bring the settlement clearly within sections 1805-1806, Code 1896. The check offered in evidence cannot be taken to show a settlement of the account in full. — Hodges v. Tennessee Implement (Company, 123 Ala. 572. In a composition there is .an implied agreement that all should share alike. — 8 Cyc. pp. 468 and 476.

Heard before Hon. E. B. Almon. Action by A. J.- McGarry against J. W. Worthington. Judgment for plaintiff, and defendant appeals. The contract made the basis of the second count is as follows: “Florence, Ala., April 2, 1898.

Heard before Hon. Charles A. Senn. This was an action by Bailey & Howard against Stevens to recover commissions as brokers in the sale of certain real estate. The averments of the counts in the complaint .are sufficiently stated in the opinion. The demurrers being overruled to the counts, the defendants filed three pleas of the general issue and the following special pleas: 4.

Heard before Horn SamL. B. Browne. Action by Hieronymous Brothers against the Bienville Water Supply Company for failure to supply water, whereby, and wherefrom, a ni]l belonging to plaintiff was destroyed. The pleadings and facts sufficiently appear from the opinion.

Heard before 1-Ion. Samuel B. Browne. Action for breach of contract by appellee against appellant.

Heard before Hon. Samuel B. Browne. Action by Joseph Patt against William Gerst. From a judgment for defendant, plaintiff appeals.

Heard before Hon. A. D. Sayre. Bill by Caldwell, Ward & Co. against Charles A. Allen and others. Defendants appeal, and plaintiffs file cross-appeal. This was a bill alleging an indebtedness of ¡§2,300, contracted in January, 1904, by Allen & Leak, a then partnership composed of Charles Allen and W. W. Leak, and sought to have set aside certain conveyances as fraudulent and void.

Appeal fiom Bessemer City Court. Heard, before 1-Ion. Wm. Jackson. Action by Mike Romano against George W. Brooks. From a judgment for plaintiff, defendant appeals. This action originated in an attachment proceeding in the justice court, and was removed to the city court, where it Aims tiied upon the following complaint: “Count 1.

Heard before Hon. D. A. Greene. J. E. O’Hearn was acquitted in the criminal court on a charge of having violated an ordinance of the city of Birmingham, and the mayor and aldermen of the city appeal.

Heard before Hon. A. D. Sayre. John West was prosecuted for violating an ordinance of the city of Montgomery. From an order of the city court sustaining a demurrer to the complaint, the city appeals.

Heard before Hon. M. M. Baldwin. Action by tfie mayor and city council of Ensley . against T. A. Cohn for the violation of a city ordinance prohibiting the carrying on of any licensed business without such license. From a judgment for defendant, plaintiff appeals.

Heard before Hon. William Jackson. C. C. Dickens was acquitted of violating an ordinance of the city of Bessemer against engaging in or carrying on a business to do which a license was required, and the city appeals.

Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Action by Mary Henry against Lewis I. Brannan. From a judgment for defendant, plaintiff appeals. The patent showed that the final receipt having been issued and the land paid for which vested the title in Henry. — Sec. 1813, Code 1896. Where the description is wholly uncfertain proof cannot be made of what was. in tended. — Kennedy Stave Go. v. Schloss, 34 South. 373.

Heard before Hon. A. A. Evans. Action by S. P. Griswold, and others against Susan M. Strickland and others in the nature of ejectment. The facts sufficiently appear in the opinion of the court. There was judgment for plaintiff and defendant appeals.

Heard before Hon Samuel B. Browne. Action in tbe nature of ejectment, begun by Amelia Frolichstein against Mary Henry, the facts concerning which are sufficiently stated in the opinion of the court. There was judgment for plaintiff and defendant appeals.

Heard before Hon. Samuel B. Browne. Ejectment by Rudolph Scheideger and others against Joshua D. Terrell. From a judgment of nonsuit, plaintiffs appeal. Frederick Sheidegger, in answer to interrogatory propounded to him in this cause, among other statements, said: “I live in Berne, Switzerland. I speak German.

Heard before Hon. Paul Speake, Special Judge. Action by Anna Y. T. Christian against John William Buford. Prom a judgment in favor of plaintiff, defendant appeals. This was an action of trespass to realty, and contained a number of counts not necessary to be here set out.

Heard before Hon. A. H. Alston. Action by Sarah E. Lindsey against the Southern Railway Company. Judgment for defendant, and plaintiff appeals.

Heard before Hon. C. W. Ferguson. Action by Albert J. Wheeler against the Tutwiler Coal, Coke & Iron Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Samuel B. Browne. Action by Mary Henry against M. L. Davis. Judgment for defendant. Plaintiff appeals. The measure of damages is tbe difference in the value of the land before and after the trees were cut from it and the court erred in sustaining an objection to a question seeking to elicit this information.- — White v. Ycmker, 138 Ala. 275; Warrior G. '& G. Go. v. Mobile Mining Go., 112 Ala. 624.

Heard before Hon. B. Dixon Armstrong, Special Judge. Action by D. W. Clark against Joe Jernigan. From a judgment for plaintiff, defendant appeals. This was an action for conversion of certain personal property, and the complaint asked for the sum of $35. The recovery was for $8, and all the costs of the proceedings were taxed against the defendant, although the costs exceeded the amount of damages in the judgment rendered.

Heard before Hon. W. W. Haralson. Action by James Malone against the Eagle Iron Company and another. From a judgment for plaintiff, defendant company appeals.

City Court. Heard before Hon. G. K. Miller. Action by Joe Curry against J. C. Wilson & Son. From a judgment for plaintiff, defendants appeal. This was an action, joining trover, trespass, and case, for the conversion of certain crops, for the taking of the same, and for the destruction of a mortgage lien. Numerous pleas were filed, and demurrers interposed, but it is unnecessary to set them out at length.

Heard before Hon. W. W. Haralson. Action by Wooley & Jordan against T. L. Farrow. From a judgment in favor of plaintiffs, defendant appeals. The subject of the controversy, together with all the facts necessary to an understanding of the opinion, sufficiently appear from the opinion.

Heard before Hon. S. H. Sprott. Action by William W. Daffin against the C. W. Zimmerman Manufacturing Company. From a judgment in favor of plaintiff, defendant appeals.

Heard before Hon. Thomas W. Coleman, Jr. Action by Charles D. Kline, as administrator of tbe estate of Sydney Olive, against tbe Woodstock Iron Works. From a judgment for plaintiff, defendant appeals. Tbe first count complains of tbe negligence of tbe defendant’s yardmaster, Fipps, in ordering tbe intestate to serve as a brakeman without informing bim of tbe dangers and perils incident thereto, knowing that he was a minor and without experience as a brakeman.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. A. A. Coleman.</p> <p>Action by Texie Jones, administratrix, and others, against tbe Pioneer Mining & Manufacturing Company. From a judgment for defendant, plaintiffs appeal.</p> <p>Tbe demurrers should have been sustained to the'pleas of contributory negligence interposed bv defendant. — Osborne v. Ala. Steel & Wire Go., 33 South. 688; A. G. S. Ry. Go, v. Brooks, 33 South. 181; So<nthern Ry. Go, v. Bunt, 32 South. 508; Brown v. L. & jY. R. R.'Go., Ill Ala. 275; Southern Ry. Go. v. Guyton, 132 Ala. 238; Western Ry. of Ala. v. Arnett, 34 South. 998; L. & jY. R. R. Go, v. Mark.ee, 15 South. 511; Southern Ry. Go. v. Shelton, 34 South. 194.</p> <p>The pleas attacked by demurrer are not pleas of assumed risk but are pleas of conti ibutory negligence, and therefore', are unlike the pleas in the cases relied on by appellant’s counsel.</p>

<p>Appeal from Shelby Circuit Court.</p> <p>Heard before Hon. John Pelham.</p> <p>Action by J. E. Swinney, by next friend, against the Southern Coal & Coke Company. Judgment for plaintiff. Defendant appeals.</p> <p>This was an action for damages for personal injuries to an employee while engaged in the business of the employer, mining coal. The third count is drawn under subdivision 1 of the employer’s liability act, and the negligence charged is that a switch in the track upon which said car Ava,s running at the time of derailment, at or near the point of said derailment, was defective, so as to cause said car to be derailed as aforesaid. De.mürrers Avere interposed to this count, and overruled; but it is not necessary here to set them out, as they are not noticed in the opinion.</p> <p>The defendant interposed several pleas of contribu-tory negligence, the first of AAdiicli is No. 4, and counts upon the negligence of the plaintiff, AAdio, being engaged as a miner to dig coal in No. 5 west turnout, in defendant’s mine, quitted his place at which he had been assigned to work, and negligently proceeded out of the mine along the main haulage road therein, and was struck by a train of cars which accidentally jumped the track. Plea 5 counts on the negligence of the plaintiff in quitting the place he had been assigned to work, and proceeding out of the mine along the main haulage way before the time when the miners usually left the mine, and at a time when they were not reasonably expected by those operating the tram cars to pass along that way. Plea 6 counts on the negligence of plaintiff in quitting his place of work and leaving the mine .by the main haulage way. It alleges that along said haulage way the defendant had dug or caused to be dug holes, into which persons entered so as to let the cars pass, and that plain" tiff at the time of the accident negligently failed to place himself in one of these dog holes, and in consequence, was struck by the string of cars. Plea 7 counts on plaintiff’s negligence in quitting his place of duty, and alleges that he went out along the main haulage way, and, meeting the superintendent of the mine at the mouth of No. -2 west turnout, he placed himself in the center of a track leading from the' main haulage way into No. 2 west turnout, and negligently loitered there, instead of proceeding out of the mine or returning to his duty. Plea 8 alleges negligence on the part of the plaintiff, in that he quit his place of work, and proceeded out of the mine as far as No. 2 west turnout, where he met the superintendent, and where he stopped and- took his seat' in the center of a side track leading from No. 2 west turnout to the main haulage way, where a. trip of cars on the main track coming down into the mine jumped the track about 40 feet away from him, and the plaintiff negligently remained sitting on the track until he was struck, by the derailed cars. Plea 9 is the same as 8, except that it alleges that plaintiff negligently failed to get out of the way of the trip of cars. Plea 10 is practically the same as plea 8, and alleges that plaintiff negligently remained sitting or loitering about three or four minutes, when, if he had proceeded on his journey out of the mine, he would have had time to have switched off into any of the dog holes provided along the main hanlage way. Pleas 11 and 12 are not set out.</p> <p>The evidence on which the plaintiff relied to support his case under the third count is sufficiently stated in the opinion, as is the evidence relating to contributory negligence.</p> <p>At the conclusion of the evidence, the defendant requested the following written charges, which were refused: “(4) I charge the jury that, if you believe the evidence in this case, the plaintiff at the time the accident happened was not acting within the line of his duty, and that the defendant in that event owed him no duty other than the duty not to injuie him wantonly, intentional]v, or recklessly. (5) If the jury find from the evidence that the plaintiff was employed by the defendant to dig coal in No. 5 west turnout in its mines at Glen Carbon, and that he had quit his place of work and proceeded out of the mine along the main haulage way before the miners were accustomed to leave the mine, and got as far as No. 2 west turnout, and there stopped and engaged in conversation for ten minutes, more or less, with the defendant’s mine foreman, then during the time he stopped at said place he was a mere volunteer, performing service for and on his own behalf, and not on behalf of the defendant, and your verdict must be for the defendant. (6) The court charges the jury that there was no evidence in this case of any defect of the ways, works, and machinery of the defendant- at the time of the accident to the plaintiff, and you must not presume anything. (7) I charge the jury that under the evidence in this case the plaintiff’s injuries were due to. an accident for which the defendant is not responsible, and there can be no recovery. (8)- I charge the jury that if ,from the evidence, you believe that the defendant had provided dog holes or safety places for the use of the miners along the main haulage way in its mines, and that the plaintiff, instead of taking one of such dog holes for safety places when he heard the trip of cars coming down the track, took a more dangerous place by standing in No. 2 west turnout, near the main line.of defendant’s track, he then assumed the risk incident to the derailment of the defendant’s cars on its track. (9) I charge the jury that if the plaintiff when he proceeded ont of the defendant’s mine at an unusual hour, when there was apparent danger and risk incident to -waking along the main haulage way of the defendant’s mine, thereby electing voluntarily to encounter them, and was injured by a train of cars coming down the defendant’s track while standing in a position in close proximity thereto, .then I charge the jury that he cannot for such accident maintain an action against the defendant. (10) If the jury find from the evidence that the plaintiff was employed by the defendant to dig coal in No. 5 west turnout in its mines, and that he quit his work and proceeded out of the mine at an unusual hour to that in which the miners were accustomed to go out of the mine, and that he proceeded out of the mine along the main haulage way along which trains of cars were being operated, and if you further find that along this haulage way the defendant had provided dog holes or safety ways for the men to stand so that the cars might pass, and if you further find that the plaintiff, instead of going into one of these safety places when he heard the trip of cars coming down the track, remained in No. 2 west turnout, where there were side tracks leading- to the main line, a place obviously more dangerous, then I charge you that he contributed to his own injury, and your verdict must be for the defendant. (11) If the jury believe from the evidence that the plaintiff was employed by the defendant to dig coal in No. 5 west turnout in its mines, and that he quit his place of work and proceeded out of the defendant’s mine at an unusual hour for the miners thereof so to do, and if you find from the evidence that there was an escape way provided for the miners in said mine, which could have been used by the plaintiff, which was a safer way for him to have gone out at than the main haulage way, and if you find that he elected to take the main haulage way out of the mine, then you. must find for the defendant. (12) I charge that if you believe, from the evidence, that the safe place for the plaintiff • to have stood as the defendant’s train of cars passed by him in its mine, but the plaintiff stood at another and moré 'dangerous place when he could have stood elsewhere along the main haulage way of the defendant’s mine, and if you believe that his standing in a more dangerous place contributed to his injury, your verdict must be for the defendant.”</p> <p>The plaintiff requested the court to give the following written charges, to the giving of which the defendant excepted: “(1) It is not required of plaintiff that he should have acted with unusual and more than ordinary prudence, either in going out of the mine or in taking care of his own safety. (2) To make the plaintiff guilty of negligence, the jury must be reasonably satisfied from the evidence that he did something which a reasonably prudent man, acting with reasonable prudence, would not have done under the same circumstances, or that he failed to do something which a reasonably prudent man, acting with reasonable prudence, would have done under the same circumstances. (3) While the jury cannot guess or surmise, the jury are entitled to draw all reasonably inferences from the facts in evidence. (4) In determining whether or not the switch was defective, the jury have the right to weigh all the evidence in the light of their common knowledge, common sense, and common experience. (5) In, order to recover a verdict, it is not necessary that the plaintiff proAre that lie suffered all the damages claimed in the third count. (6) A servant ordinarily has the right to rely on the master having exercised due care to have the ways, works, machinery, or plant in a reasonably safe condition. (7) If the jury find for the plaintiff, they have no right to Avithhold from the amount of their verdict a single dollar to which, under the evidence and charge of the court, the jury may be reasonably satisfied the plaintiff is entitled. (8) In estimating- the amount of damages, if the jury find for the plaintiff, the jury must consider the evidence, if any, tending to sh.oAV damages, if any, which plaintiff may reasonably be expected to suffer in the future as a proximate result of the negligence complained of, as well as the damages, if any, which the jury may be reasonably satisfied from the evidence plaintiff has suffered in the past as a proximate result of .the negligence complained of; provided, that plaintiff cannot recover any' damages not claimed in the complaint. (9) A servant or employe does not ordinarily assume any of the risks of the business which are brought about by the negligence of the master, or by the negligence of those to whom the master has intrusted the duty of seeing that the ways, works, machinery, or plant were in proper condition. (10) It is the duty of the employer to use due care and diligence to see that its ways, works, machinery, and plant, including a switch in use, if . any, are in proper condition; and ordinarily the. employe has a right to rely on the presumption that his employer has performed this duty, and that the Avays, Avorks, machinery, and plant are in proper condition.”</p> <p>There Avas verdict and judgment for the plaintiff in the sum of $2,800.</p> <p>The court erred in refusing to charge the jury that at the time of the accident plaintiff’s intestate was not acting within the line and scope of his duty and that the defendant owed plaintiff’s intestate no duty other than not to injure him Avantonly or intentionally.- The court also erred in refusing to charge at the time of the accident plaintiff’s intestate was a mere volunteer and not engaged in th,e employment of defendant. — Wilson v. L. d N.-R. R. Go-., 85 Ala.-273; A. G. 8. Ry. Go. v. Hall, 105 Ala. 599; Mary Lee G. d R. Go-, v. Gha/nbliss, 97 Ala.. 131;- Collier v. Goggrms, 103 L. R. A. 281; McDaniel v..H. A. '& B. Ry. Go., 90 Ala. 64; Warden v. L. d N. R. R. Go., 94 Ala. 277. The law does not require of defendant to use the latest appliances but only those which are reasonably adapted ~ for the purposes for which they are used. — Mary Lee G. d R. Go-., supra: Seaboard Mfg. Go-. r>. Wo-o-dson, 94 Ala.'143; Wilson v. L. d N. R. R. Go., sv/pra;- Smoot v. M. d M. Ry. Go., 67 Ala. 20. It is submitted on these authorities that plaintiff failed to make out his case under the 3rd count. The withdrawal of the other counts including the 1st operated to take them out of the case and the part adopted in the 3rd count from the 1st count cannot, therefore, be looked to in aid of the 3rd count. — Bir. Ry. - L. ;d P. Go. v. Allen, 99 Ala. 365. The court erred in permitting the testimony of the two wrecks within a month or two previous to the accident, and the details thereof.— Bir. II. By. Go. v. Alexander, 93 Ala. 137; Schley v. L. & N. B. B. Go., 100 Ala. 388; M. é A. of Bvrm. v. Starr, 112 Ala. 107.</p> <p>The various grounds of demurrer to’ the complaint were not well taken. — Bear Greek Mill Go. v. Parker, 134 Ala. 293; L. A N. i?. E, Go. v. Mother shed, 12 Suth. 1215; Mary Lee G. & By. Go. v. Chambliss, 97 Ala. 174; A. G. S. B. B. Go. v. Davis, 119 Ala. 572. Upon the recitals in the bill of exceptions the court cannot consider the motion for a new trial. — McDonald v. Ala. Mid. By. Go., 123 Ala. 229; Bichter v. Kootman, 131 Ala. 399; Bessemer L. & I. Go. v. DuBose, 125 Ala. 446. Charges 1, 2 and 3 were properly refused. — Bessemer L. Go. v. Tillman, 139 Ala. 462. Under the facts in. this case the plaintiff Avas in the employment of defendant and defendant owed him ordinary care. — Bir. Bolling Mill Go. v. Bockhold, in MS.</p>

Heard) before Hon,- S.- L. Brewer, Action by George A. Dodson against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. John H. Disque. Action by J. H. Griffin, administrator of C. Cahill, deceased, against the Alabama Steel & Wire Company. From a judgment for plaintiff, defendant appeals.

Apeal from' Jackson Circuit Court. Heard' before Hon. W. W. Haralson. Action by John McGowan against the Southern Railway Company. ' From a judgment for plaintiff, defendant appeals.

' Heard'before Hon. A. A. Coleman. Action by D. C. Wolf against R' D. S'mtih. From a judgment for defendant, plaintiff appeals. This was an action for damages.

Heard before Hon. Chas. A. Senn. Action by Oscar Skelton against the Birmingham Mining & Contracting Company. Judgment for plaintiff, defendant appeals. The nature and character of the action, together with the facts relied upon to support the same, and to support the defense of ■ contributory negligence and assumption of risk, fully appear in the opinion.

Heard before Hon. Samuel B. Browne. ' Action by Robert Mills against the Creola.' Lumber Company. From a judgment for plaintiff, defendant appeals. The 1st count was insufficient and the demurrers should have been sustained to same. — H. A. & B. R. R. fío. v. Dusenberry, 94 Ala. 413; Clements v. A. C. Ry. Co., 127 Ala. 166. On tlie same authority the demurrer should have been sustained to count 2.

<p> Damages for Injury to Passengers. </p> <p>1. Carriers; Injury to Passengers; Evidence; Burden of Proof.- — The burden, is on the ifiaintiff to show that he was a passenger, in an action tor injuries alleged to have occurred while plaintiff was boarding one of defendant’s cars, at a regular stopping place for the reception of passengers.</p> <p>2. Same; Instruetibns; Who are Passengers. — An instruction defining a passenger “as one who is boarding a car, or attempting to board a car, or at the station of a company operating a car for the purpose of being carried on the car from one point to another” and the further statement therein that “he becomes a passenger, when, with the intention of boarding a train, he attempts to board for the purpose of riding,” is erroneous, in pretermitting all enquiry of acceptance as such by the carrier.</p> <p>3. Trial; Instructions; Ignoring Defenses; Permitting Recovery for .Causes not Counted on. — -The complaint alleging that the injury occurred while the plaintiff was boarding one of defendant’s cars while the car was stationary at a regular stopping place for the reception of passengers, and was caused by the defendant negligently putting the car in motion when plaintiff was in a perilous position; and the defense being the general issue, and contributory negligence in attempting to board the car while in motion, in front of a trunk or box near defendants’ track resulting in plaintiff’s having run into the trunk or box causing the injury complained of, it was erroneous to instruct the jury that if there were two proximate and concurring causes at the time of the injury “for instance, if there was negligence in moving the car by the conductor when plaintiff attempted to board it, if that was negligent, if that was one of the causes, and if there was a trunk or box here, and that was another cause, and if both these causes, contributed to the injury, still plaintiff can recover, because he is not cut off by the fact of the box being there; as it ignores the' plea of contributory negligence, and permits recovery for cause not alleged.</p> <p>4. Carriers; Injury to Passengers; Instructions; Sudden Danger.— An instruction asserting that “one Drought into sudden danger by the wrong of another is not expected to act with coolness and deliberation as would a reasonable man tinder ordinary circumstances,” is erroneous in predicating, as matter of law, lack of coolness upon merely sudden danger, however slight, as distinguished from extreme danger.</p>

<p> Action for Damages for Injuries Resulting from Failure to Receive Plaintiff as a Passenger. </p> <p>1. Carriers; Existence of Relation of Passenger and Carrier; Pleading. — A complaint containing allegations that defendant was a common carrier of passengers by means of 'electric cars running from G. to B.; that plaintiff and her children were at G. at the proper place there for receiving passengers, for the purpose of being transported by means of such car from G. to B.; that the car stopped at said place for the purpose of receiving passengers, but plaintiff did not board it by reason of the negligence of the servant of defendant in charge of the car in negligently failing to allow her a reasonable time or opportunity to do so, aside from the positive allegations therein contained that plaintiff and her children were defendant’s passengers, and that it was its duty to transport them from G. to B., sufficiently shows the relation of carrier and passenger.</p> <p>2, Same; Wanton Injury; Pleading. — A complaint after alleging that the servant of defendant in charge of the car negligently failed to allow plaintiff a reasonable time or opportunity to board the car, averred that defendant’s servant in charge of the car, while acting in the line and scope of his authority as such servant, wantonly or intentionally prevented plaintiff from boarding said car as aforesaid, and thereby wantonly or intentionally caused said plaintiff to suffer said injuries. Held, sufficent to charge wantoness or intentional injury.</p> <p>3. Appeal; Review; Discretion; Competency of Immature Witness — Unless it clearly appears that the court’s discretion was improperly used in permitting a witness of immature years to testify, it will not be reviewed on appeal.</p> <p>4. Trial; Motion to Exclude Evidence. — Where there was no objection to the question or the answer thereto, and the evidence was relevant, a motion made to exclude such evidence, made at the close of the defendant’s testimony, comes too late.</p> <p>5. Damages; Right to Punitive Damages; Instructions. — An instruction authorizing punitive damages if the act was done negligently, intentionally or wantonly, is improper; such damages not being recoverable for simple negligence.</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. A. A. Coleman.</p> <p>Action by George P. Hess against the Birmingham Railway, Light & Power Company for personal injuries. Prom a judgment far defendant, plaintiff appeals.</p> <p>The complaint in this cause, as originally filed, contained two counts, as follows: Count 1: “Plaintiff claims of the defendant $5,000 as damages, for that heretofore, to-wit, on the 24th day of January, 1903, defendant was a common carrier of passengers over and along a railway 'running fiom Birmingham to Wood-lawn, Jefferson county; Alabama, by means of a car operated by electricity; that on said day, while plaintiff was on said .car, being carried by defendant as its passenger on said car, said car collided with another car at a point on said railway in or near said Birmingham, and as a proximate consequence thereof plaintiff was (here follows a detailed description of his injuries and special damages.) And plaintiff alleges that said car, upon which he was as aforesaid, collided with said other car, and plaintiff suffered said injuries and damages, by reason and as a' proximate consequence of the' negligence of defendant in or about carrying plaintiff as its passenger as aforesaid.” Count 2 was the same as count 1, down to and through the allegation of injuries and special damages, and adds the following: “Plaintiff avers that defendant wantonly or intentionally caused plaintiff to suffer said injuries and damages as aforesaid by wantonly or intentionally causing or allowing said collision.” Demurrers were interposed to these counts, but no action on demurrers is shown by the record. The original complaint was filed on the 24th of March, 1903. On the 18th of October, 1904, the plaintiff by leave of the court amended his complaint as follows: (1) He amends each count of the complaint by striking therefrom the Avoid “Woodlawn,” Avhere it appears in the complaint, and by inserting in lien thereof the words “West ’End.” (2) By striking from the first count the Avord “defendant,” Avhere it last occurs in said county, and by inserting in lieu thereof the words “defendant's servant or agent, acting Avithin the line and scope of his authority as such.” (3) By striking from the first count of the complaint the Avord “its,” where it last occurs in said count, and by inserting in lieu thereof the word “defendant’s.” (4) By striking from the second count the Avord “defendant,” Avhere it last occurs therein, and inserting in lieu thereof the words “defendant’s servant or agent, acting Avithin the line and scope of his authority as such.” Defendant moved to strike the first and second counts of the complaint as amended on the grounds of a departure, a change of cause of action, and because not .Avithin the lis pendens of the original suit. These motions being overruled, the defendant pleaded the general issue and the statute of limitations of one year to the amended complaint. At. the request of the defendant, after the eiddence had been given, the court gave the general affirmatiA,'é charge.</p> <p>The affirmative charge should not have been given to the 1st count. The amendment to the count does not introduce a new claim or cause of action. — Nelson v. Fvrst National Bank, 139 Ala. 578; L. cG N. R. R. (Jo. v. Woods, 105 Ala. 561; A. C. F. R. R. (Jo. v. Chapman, 83 Ala. 453; Manchester Fire Ins. Co. v. Fiehlemm-, 118 Ala. 322; Chicago., Ft. Louis Ins. P. P. R. Co. v. Billis, 118 Ind. 221; Adams v. Phillips, 75 Ala. 461; A. C. F. R. R. Co. v. Thomas c& Forts, 89 Ala. 304; Agea v. Williams, 30 Ala. 639; Brad-ford v. E (hoards, 32 Ala. 631; McDonald v. Ftata of Nebraska, 41 O. O. A. 283; Fvans v. Richardson, 76 Ala. 332; Ftringer v. Waters, 63 Ala. 561; John F. Kuhn v. J. II. Brownfield, 11 L. R. A. 700; Ross v. Ftate, 131 Ind. 548; W. U. T. Co. v. Way, 83 Ala. 553; Dowling v. Blackman, 70 Ala. 304; Fublett v. Hodges, 88 Ala. 491; Birmingham Fur. & Mfg. Co. v. Cross, 97 Ala. 222; 1 Ency. Plea. & Prac. 821 and authorities cited; Ricketts v. Weedan, 64 Ala. 548; Bradford v. Fdiocurds, 32 Ala. 628.</p> <p>The amendment to the 2nd count was within the lis pendens. — Shepherd v. Furniss, 19 Ala. 760; Rhodes v. Roberts, 1 Stew. 145; Bay Shore R. R. Go. v. Hm~ris, 67 Ala. 8.</p> <p>—Counsel discuss assignments of error but cite no authority.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard, before Hon. C. W. Ferguson.</p> <p>Action by Queenie King against the Birmingham Railway, Light & Power' Company. Judgment for plaintiff, and defendant appeals.</p> <p>The complaint contained three counts, as follows:: Count 1: “Plaintiff claims of the defendant the sum of $25,000 damages, for that on and prior to the 7th day of September, 1903, the defendant was a body corporate, and as such was engaged in the business of a common carrier, and in and about its business was operating electric, cars for the’1 carriage of passengers from Birmingham to East Lake, Ala., one of its lines passing a station called ‘Fifty-Ninth Street Station,’ which was a regular stopping place for receiving and discharging passengers; and the plaintiff avers that on the said 7th day of September, 1903, the plaintiff was a passenger on one of its said cars going from Birmingham to said Fifty-Ninth Street Station, and upon reaching said Fifty-Ninth Street Station, the said car upon which plaintiff was riding stopped, and the plaintiff attempted to alight from said car at said point, but while she was in the act of alighting, and before she had alighted from said car, the same moved forward quickly, jerking the plaintiff down upon the ground, and severely injuring her in the hips, back, spine, side and other portions of her body, and greatly impairing her nervous system, from which she has suffered great pain and mental torture. (Hete follows other allegations of special damages.) And plaintiff avers that her said injuries were proximately cauised by the negligence of defendant’s employes in charge of ,said car in the management and operation thereof.” (’ount 2: Same as count 1, except that the negligence alleged is charged to the motorman in charge of said car in the management and operation thereof. Count 3 : Same as first count, except that the negligence is charged to the conductor in charge of said car in the management and operation thereof.</p> <p>The defendant filed the following demurrers, and assigned the same to each count of the complaint sepa-, rately: “(1) The averments oí said count are vague, uncertain, and indefinite. (2) No facts are stated showing wherein the defendant’s employes, servants, or agents were guilty of negligence, (3) It does not appear therefrom how or in what manner said employes were negligent. (4) It does not appear therefrom that said employes were negligent in the doing of an act within the line and scope of their employment as such.” These demurrers being overruled, the defendant filed a plea of the general issue and three special pleas of contributory negligence, in the first of which her negligence is alleged to consist of the negligent manner in which she stepped from the car while same was in motion. (2) It is alleged that plaintiff negligently attempted to alight from said car while it was in motion. In the third, her negligence is alleged to- consist in negligently alighting" from said car while the same was in motion, after having been warned or notified not to alight from said car.</p> <p>Upon entering into the trial, the plaintiff demanded a struck jury. The court asked the 24 jurors in attendance the usual qualifying questions, all of which were answered in the proper way, whereupon plaintiff’s counsel requested the court to inquire of the jurors whether any of them was in the employment of the defendant company. The court did so, arid one of the jurors answered that he was employed as a motorman by the defendant company. The plaintiff interposed a challenge for cause as to said juror, upon the ground solely that be was in the employment of the company. The court sustained the ground, and for cause set aside said juror, and substituted for him in the proper way one Baggett, avIio was stricken from the panel by the defendant. Objection was interposed to the action of the court in reference to this juror by the defendant.</p> <p>Tlie evidence for the plaintiff is not set ont in the record. The tendencies are stated.to be that on the day mentioned in the complaint the plaintiff was a passenger on one of the electric cars that the defendant was operating from Birmingham to East Lake, it being Labor Day; that her destination was as stated in the complaint; that the car- came to a stop at the Fifty-Ninth Street Station, and, the plaintiff immediately got np and went ont upon the platform to alight from it, and was in the act of alighting from the step of the platform, and was on the step, when the car, which was standing still up to that time, started with a hard jerk, which- threw her to the ground and injured her as stated in the complaint. The tendencies of the evidence as introduced by the defendant was that the car stopped at Fifty-Ninth Street Station the usual length of time for cars to stop there for passengers to get on and off; that after all the passengers who were attempting to get off had alighted from the car in safety while it was standing, the conductor1 gave the motorman the signal to go ahead; that, after the signal was given, plaintiff came out of the door of the car and started to get off, when the conductor called to her • noUfco get off, stating that he would stop the car again, b* she continued to cross the platform and get down on the step while the ear was moving slowly.</p> <p>While J. A. Emery was being examined by defendant, this question was asked him by defendant’s counsel: “How did the car start Avith reference to hoAV it should be started?” referring to the starting of the car at the time the plaintiff was injured. Witness answered as folloAArs: “Heavy trains like that always start slowly.” Objection by the plaintiff Avas interposed and sustained by the court to the answer. Afterwards the defendant asked the Avitness: “Hoav did this particular train start?” and the Avitness answered, “Slowly.” The Avitness Avas asked the further question Avhether or not it Avas started as trains of that kind usually are, and Avitness answered in the affirmative. I)r. Mason testified that at the time of the trial he was surgeon for the defendant, and that he had had no opportunity to examine the plaintiff, and knew nothing as to the extent of her injuries or condition. Dr. Legrand testified that he was defendant’s surgeon at the time plaintiff was hurt, and he examined her just after the accident.</p> <p>The oral chárge of the court is not set out in full in the transcript. The portion excepted to was as follows: “Gentlemen, one of the allegations of the complaint is that she was a passenger on defendant’s car. If you are reasonably satisfied from the evidence that she was a passenger, then the moment that she took passage on the car it became the duty of the defendant company to deliver her safely to the point where she intended to get off. If they failed in that, and she was negligently injured in any one oí the ways averred in the complaint, by the means averred in the complaint, the defendant would be liable in damages, unless the defendant makes good its pleas of contributory negligence.” Then follows the charge as to contributory negligence. The defendant also objected to the oral charge of the court, wherein he instructed the jury that, if the car was suddenly jerked forward quickly when plaintiff was in the act of alighting, then she would be entitled to recover, unless she was guilty of contributory negligence which proximately contributed to her injury. The court thereupon modified its charge by saying to the jury that the defendant company did not owe her the absolute duty to deliver her safely there; that they were not insurers ■ — absolute insurers — of the safety of passengers; but that they owed to the passengers the highest degree of care in delivering them safely at the point of destination. The defendant requested the following written charge, which was refused: “The defendant had no absolute right to have the plaintiff: examined for the purpose of determining the extent of her injuries.”</p> <p>There was verdict and judgment for the plaintiff in the sum of |4,000. From this, this appeal is prósecuted.</p> <p>—Counsel discuss assignments of error, 1 to 6 inclusive, but cite no authority. The court erred in sustaining a challenge for cause to the juror because he was. employed as a motorman by the defendant. — Burdine v. Grand Lodge, 37 Ala. 478; Oalhoun v. Hannon, 87 Ala. 277, Tlie court erred in refusing to charge that defendant had no absolute right to have plaintiff examined for the purpose of determining the extent of her injuries.— A. G. 8. By. Go. v. Hill, 90 Ala. 76.</p> <p>None of the demurrers to the complaint were well taken. — 5 Mayfield, 74. The oral charge of the court when taken as a whole correctly states the law and the rule is that it must be construed as a whole and in connection with the evidence.— Decat-ur G. W. & Mfg. Go. v..Mehaffey, 128 Ala. 256; M. é E. R. R. Go. v. Stewart, 91 Ala. 422. The court properly allowed the juror motorman to be challenged for cause. — -Steed v. Knowles, 97 Ala. 578; N. O. & T. R. R. Go. v. Mosh, 2 South. 360; Thomas v. The State, 133 Ala. 144; Gunter v. GraniteviUe Mfg. Go-., 18 S. C. 263; Geniral of Ga. Ry. Go. v. Mitchell, 63 Ga. 173; Rollins v. Ames, 9 Am. Dec. 79. The court properly refused' the charge requested by the defendant. — A. G. S. Ry. Go-, v. Hill, 90 Ala. 71, s. c. 93-Ala. 571.</p>

Heard before I-Ion. A'. D. Sayre. Action by P. Fitzpatrick against tbe Montgomery Traction Company. Judgment for plaintiff, and defendant appeals. A complaint cannot be amended by adding a new connt which either changes the form of action or introduces an entirely new canse of action. — Malum v. Smithernum, 71 Ala. 56; A la. Gt. Southern R. R. Go. v. Smith, 81 Ala. 229; Louisville S Nashville R. R. Go. v. Woods, 105 Ala. 561; Gent, of Ga. Ry.

Heard before Hon. A. A. Coleman. Action by Izora Griffin, administrator of Laurine Schuler, against the, Birmingham Railway, Light & Power Company, revived in the name- of Morris Love-man, appointed administrator de bonis non on the death of Izora Griffin. From a judgment for defendant, plaintiff appeals. There were four counts in the complaint, all charging simple negligence except the third, which charged wanton or willful misconduct.

Heard before Hon. A. A. Coleman. Action by J. H. Johnson, as administrator of Charles F. Bridgeman, deceased, against the Birmingham Railway, Light & Power Company, to recover damages for defendant’s .alleged negligence in causing the death of plaintiff’s intestate. From a judgment for defendant, plaintiff appeals. The first count was for willful, wanton,, or intentional negligence. The second and third counts were in simple negligence.

Heard before Hon. Charles A. Senn. Action by W. J. Randle, as administrator of the estate of John M. Randle, deceased, against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. This was an action for damages for the negligent killing; of John M. Randle by running over him with a. car being operated by defendant over its street railway on a populous street in the city of Birmingham.

Heard before I-Ión. J. O. Ríohariison. Action by Lizzie Bradley against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Action for damages for personal injuries.to. person crossing track of defendant at a.'public crossing. The first count charged simple negligence, and counts 2, 3, 4, and 5. charges wanton or willful negligence. It is unnecéssary .to set out the pleadings.

Heard before Hon. A. D. Sayre. Action by Abraham Bros, against the Southern Railway Company. From a judgment for defendant, plaintiffs appeal. This was an action begun by appellants against the appellee in the city court of Montgomery to recover damages for a failure to deliver live stock. The complaint was filed and summons issued thereon on December 15, 1904, and service was made upon an agent of the defendant in Birmingham on December 16, 1904.

it Court. Heard before Hon. Samuel B. Browne. Action by E. H. Britton against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. This was an action begun by the appellee- against appellant in the justice court to recover for the value of a case of shoes alleged to have been delivered to- the defendant for shipment and never delivered to- consignee.

Appeal fi'om Tuscaloosa County Court. Hoard before Hon. H. B. Foster. Action by Charles F. Farley and others against the Mobile & Ohio Railroad Company. Judgment for defendant, plaintiffs appeal. This was an action for the recovery of $180' damages for destruction by fire of 18 tons of hay alleged to have been caused by sparks emitted from one of defendant’s engines. The defendant interposed the plea of the general issue.

Heard before Hon. Samuel B. Browne. Action by Mertz, Ibach & Company against the Louisville & Nashville Railroad Company. Prom a judgment for plaintiff, defendant appeals. This action is for damages done to a wagon and team of mules belonging' to the appellees, by a train of cars of appellant while being operated along the streets of the city of Mobile. The complaint contained several counts in simple negligence and two in wanton, or intentional, negligence.

Heard before Hon. B. M. Miller. Action by E. G. Cofer against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. The appellee, who was a merchant at Randolph, Ala., shipped 23 bales of cotton, as per bill of lading set out in the opinion, from Randolph, Ala., over the lines of the appellant, delivering the cotton to appellee on the 25th and 26th days of November, 1904.

<p>Damages for Trespass by Animals on Account Defective Cattle Guards.</p> <p>1. ■ Railroads; Construction; Cattle Guards. — Under Section 3480, Code 1896, one not the owner, of land cannot sue for damages for failure to place and maintain cattle guards on such land, nor is he entitled to recover damages caused by hogs trespassing thereon that enter his land through a cattle guard not on his land. .</p> <p>2. Action; Complaint; Demurrers. — A complaint for damages under Section 3480, Code 1896,' which állegéd damages by reason of ■ defendants failure to repair the cattle guards on plaintiff’s farm, but which fails to allege that plaintiff is the owner of the land, or that defendant ever erected cattle guards thereon, is subject to demurrer.</p> <p>3. Same. — A complaint which, averred the construction of cattle guards by defendant, the ownership in the plaintiff of the lands during a given time, when defendant was. operating a railroad through such land, failure to keep the gap in repair after demand by plaintiff on defendant’s agent and damages resulting therefrom, is not subject to demurrer for failing to allege ownership in the land when the injuries occurred, as a departure from the original cause, or as failure to aver notice to defendant’s agent, or as failing to sufficiently describe the land.</p>

Heard before Hon. A. A. Coleman. Action by Kitt Geter against tbe Central Coal Company. From a judgment for defendant, plaintiff appeals. Many assignments of error are predicated upon tbe action of tbe court upon the trial of the cause, but are not considered in the opinion, for the reason clearly Stated therein.

Heard before Hon. A. H. Alston. Action by J. H. Gunn against Dunn & Dallando Bros. Judgment for plaintiff, and defendants appeal. The nature of the suit and the substance of the corn-paint is sufficiently set out in the opinion.

Heard before,Hon. Samuel B. Browne. Action by Florence C. Sbaw against tbe city of Mobile. From a judgment for plaintiff, defendant appeals. This was an action begun by tbe appellee for damages resulting from falling into a bole on a sidewalk, or near tbe sidewalk, of tbe appellant. Tbe negligence alleged is tbe failure to have that part of tbe street sufficiently lighted, and for failure to repair tbe defect, which bad been known to exist for some time.

Heard before Hon. Samuel B. Browne. Action by Loui Hart against Frank A. Hervey and others. Plaintiff was granted a new trial, and defendants appeal.

Heard before Hon. Samuel B. Browne. Action by Frankie Tipton against John W. Fielder. From a judgment in favor of plaintiff, defendant appeals.

- Heard before Hon. Charles Fúrguson. Action by E. Lee Crowley against'the city of West End and others. Judgment' for defendants, and plaintiff appeals. The original complaint contained 'two counts, to which demurrers were interposed and sustained, whereupon'he filed an amended complaint containihg counts' 3 and 4. It' will suffice' for' this ca'se to 'set out one of these counts, as they are all' very similar ': “Count 3.

Heard before Hon. H. A. Pearce. Action by J. D. Prevatt against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. The relationship of grandson and grandfather is not within the degree for which there can be a recovary for mental pain, nor does proof of such relationship of itself raise a presumption of law that mental pain and anguish was .suffered. — W. TJ..T.el. (Jo. v. Ayers, 131 Ala. 391; W. U. Tel.

Heard before Hon. A. A. Coleman. Action by Movie Heathcott against the Western Union Telegraph Company. Judgment for. plaintiff. Defendant appeals. The plaintiff filed replications 3. and 4; but, as demurrer was sustained to replication 3, and it is not shown to have been amended, it is not necessary to here set it out.

Heard before Hon. B. M. Miller. Quo warranto by tlie state, on the relation of J. N. Stanford and otheis, to try the title of J. F. Foste.' 10 the office of probate judge of Wilcox county. From a judgment ousting respondent, he appeals. The probate judge of Wilcox county died May 6, 1906, and Foster was appointed in his stead. ■ The general election for state and county officers next after the death of the probate judge came on November 6, 1906.

Original petition in Supreme Court. Trimble Walker and Adele Baker were the contestants in a cause pending in the probate court of Montgomery county, wherein B. W. Walker was the contestee on a, petition to- probate the will of their grandmother.

Original Petition in Supreme Court. Mandamus, on the relation of W. H. Bandall, against the Yelloiv Pine Lumber Company, to compel the dismissal of a suit. An attorney is but a special agent. — Robinson v. Murphy, 69 Ala. 547; Chapman v. Coartes, 41 Ala. 103. A client may dismiss a suit without knowledge or assent of the attorney.— White v. Ramee, 16 Ala. 345; Cameron v. Boeger, 93 Am. St. Bep. 165; Williams v. Miles, 93 Neb. 851; Peoples Baoilc v. ¡Superior Court,.43 Am.

<p>Appeal from Mobile Circuit Court.</p> <p>Heard before Hon. Samuel B. Broavne.</p> <p>Petition for mandamus by the State, on the relation of Leon Ducourneau, to compel David Langan, as tax collector of the city of Mobile, to issue .to relator a license. From a judgment denying the writ, on sustaining a demurrer to the petition, relator appeals..</p> <p>The petition alleges that the relator is a citizen of Mobile, and is conducting a liquor business in the city of Mobile, for which, he has a license; that Langan is tax collector of the .city of Mobile, and as such has the issuance of license; that it is necessary to have the signature of.the mayor, and that the mayor.refuses-to sign such license because the business is to- be conducted in a district of the city where liquors cannot be sold; that the city has no authority to restrain the buiness- for which license is sought, but may regulate the same; that ■a license has been prescribed for that character of business, setting out the ordinance; that certain.limits are prescribed in which liquor may be sold, setting those limits out; that in these limits no effort is made by the authorities to put doAvn vice and immoral practices; and that it is not a suitable place for a theater or music hall where liquors are to be sold. It further alleges that liquors are served in certain hotels and restaurants, to the music of bands, outside of the territory, and that the refusal of license to petitioner is unjust and a discrimination. Respondents demurred to the petition because the charter cf the city of Mobile, (section 21) expressly authorizes the general council of said city to adopt ordinances'in the matter of “the licensing and regulating of retail liquor dealers,” and also in the matter of theatrical performances and other entertainments and amusements, and that it appears upon the face of said petition for mandamus that said ordinances regulating said vocation when carried on together, by confining them on and after October 31, 1906 — that is to say, “theaters- or variety shows, where songs, music, or dancing is allowed, and wines and vinous, malt, or spirituous liquors are sold, or where men or women are employed to serve Avine and vinous, malt, or spirituous liquors, on the floor or in the Avine room” — to- that locality or portion of the city of Mobile Founded by “LaAvrence street on the east, Willcerson street on the west, St. Micliel street on the south, and St. Louis street on the north,” is a valid exercise of the power conferred by the legislature of Alabama upon the general council of the city of Mobile. These demurrers were sustained, and the petition amended, elaborating the conditions existing in the district to which places of the kind license is here sought for is confined, and'the same demurrer was refiled to the. amended petition and sustained.</p> <p>— A municipal corporation possesses and can exercise- those powers granted in express words, those necessarily or fairly implied incident -to the powers expressly granted, those essential to declared .objects and purposes of the corporation, and none other. —New Decatur v. Barry, 90.Ala. 433. Any reasonable doubt as to t-he existence pf the power of any municipality to enact an ordinance should be resolved against the municipality. — 21 Enc. of Law, . 950. Where the power to legislate on .a given subject is conferred, but the mode is not prescribed the courts have full power to pass upon such ordinance and unless it be a reasonable exercise of the power it will be declared invalid.— 21 Enc. of Law, 990; Greensboro v. Ehrenrcieh, 80 Ála. 579. And must- be reasonable and not arbitrary ,or oppressive. — Greensboro v. Ehrenrcieh, supra; Oscanna v. Allen, 90 Ala. 468; 21 Enc. of Law, 985; ¡Dillon on Municipal Corporations (4th Ed.) § § .319-321., The test of reasonableness is laid down in the following authorities. — 21 Enc. of Law, 986; Dillon on Municipal Corporations, supra; 2 Abbott’s Municipal Corporations, p. 134.1. An ordinance must be general in its nature and impartial in its operations — 2Í Enc. of Law, 983; Greensboro y. Ehrenrcieh, supra. The charter power of the city of Mobile does not authorize the passage of an ordinance which in its nature is prohibitive notwithstanding the power -to regulate theatrical and .other amusements and entertainments. — Ex parte Burnett. 30 Ala. 461.</p> <p>The appeal should he dismissed because the petition itself shows that the tax collector cannot issue the license demanded. It requires the concurrent action of the mayor, and the relator must specifically point out the relief which he seeks. • The prayer of the bill is directed only against Langan and not against Lyons. Even in equity a prayer is essential to a recovery. — Driver v. Fortner, 5 Port. 9. The license ordinance was neither discriminatory nor prohibitory but is a. mere regulation of the liquor business. The power is given to- limit the employment or occupation to a particular locality. —Eos parte Byrd, 84-Ala. 17; State v. Reid, 1 Ala. 612; Shelton v. Mayor of Mobile, 30 Ala. 540. The following cases state the rule as to when a license ordinance is prohibitory and when not. — Ex parte Sykeis, 102 Ala. 177; Tntendant v. Chandler, 6 Ala. 899.</p> <p>That the city has the power to prohibit theatrical performances and dancing where liquors are sold cannot be doubted. — State v. Qewrhardt, 33 L. R. A. 213; Ex parte Smith cG Keatvng., 38 Cal. 702; McQuillan’s Municipal Ordinances, p. 757.</p>

Action by Charles O. Dickens against the Southern Railway Company. From an order- granting plaintiff a new trial, defendant appeals. Admissions of a .party against interest-are admissible in evidence against him. — Polly v. McCall, 37 Ala. 20; Humes v. Ó’Brian, 74 Ala. 54; L. & N. R. R. Co. v. Hurt, 101 Ala. 36. So are his admissions in disparagement of his title. — Jemison v. ¡Smith, 37 Ala. 185; Arthur v. Gayle, 38 Ala. 259.

Heard before Hon. J. C. Richardson. Action of attachment by Charles Gainer against James Murray; J. E. Witherington, claimant. From the judgment, said claimant appeals. Charles Gainer had issued and levied an attachment upon the crops of James Murray to enforce a landlord.^ lien. There were two suits, and J. E. Witherington filed a claim bond and affidavit, setting out that the property levied upon in the attachment writ was the property of said Witherington.

. Heard before Hon. W. W. Haralson. Action by Thomas Ventress against the Alabama City, Gadsden & Attalla Railway Company. From an order .overruling a demurrer to a motion to substitute a summons and complaint, defendant appeals. .. This .was- an. application to the circuit- court to. substitute summons and complaint, which ivas alleged to have been delivered to the clerk, and by him, with copy, delivered to the sheriff of the county for service.

<p> Final Settlement of Estate. </p> <p>1. Administrators; Account; Form. — The statement of an administrator’s account should not embrace charges against the distributees on their distributive shares. Such account should state the debits and credits regardless of the distributees shares; and after the ascertainment of the distributive share of each, the advancement made' them should be charged against the distributive share of each.</p> <p>2. Samo. — Although the account was irregular in form, if the distributees of the estate have received all they are entitled to under a final distributive decree, they are not prejudiced by such irregularities.</p> <p>3. Same; Statement of Account. — The court in stating the account .made annual stops, crediting the administrator with the current expenses of administration, and charging him with interest at eight per cent on the dollar until the settlement, and in the calculation, deducted from the share of'each distributee the advancement made to each during the particular year and charging the administrator with interest on the balance from the annual stops so made. Held, not prejudicial to the distributees.</p> <p>4. Same; Credits; Tames.- — An administrator is properly credited with State and county taxes assessed against the estate and paid by the administrator..</p> <p>5. Same; Distribution; Charges; Board of Distributees. — Under Sections 227 and 239, Code of 1896, the charges for board against the distributees were properly allowed the administrator on final settlement and distribution against their distributive shares.</p> <p>O. Same; Costs; Attorneys Fees; Guardian Ad litem. — An- administrator is properly allowed attorney’s fees, guardián ad'litem fees and costs on a settlement of his account.</p>

Heard before Hon. H. A. Pearce. Action by L. Reeves and others against H. T. Babcock. From a judgment in favor of plaintiffs, defendant appeals. The action was on an injunction bond, conditioned to pay the defendants in the injunction suit all damages and costs which any person may .sustain by the suing out of the injunction.

W. W. Haralson'. ■ Tlie taxes oh certain real' estate having been assessed against this appellant, and not having been paid, the judge of probate of DeKalb county entered • an- order for tbe'sale' of the lands'.