Volume 150 — Alabama Reports

Appear from Houston Circuit Court. Heard before the Hon. H. A. Peabce. The defendant was indicted, tried and convicted of killing Matthew Srtickland by shooting him. with a rifle. For reasons stated in the opinion, the bill of exceptions was stricken. The errors of record complained of are stated fully in the opinion.

xkpPEAL from Gadsden City Court. Heard liefoie Hon. John I-f. Bisque. Yoiande Degg ivas convicted of murder, and appeals. The defendant and one Dean and Hasson were jointly indicted for the murder of Womack by shooting him with a pistol. The evidence tended to show the shooting as alleged in the indictment and that the defendant, was the one who find the pistol. There vas othfer evidence tending to show a participation in the difficulty by Dean and Hasson.

Hoard, before Hon. S. H. Sprott. Can .Pate was convicted of murder, and lie appeals.

Heard before Hon. Thos. W. Coleman, Jr. Will Fleming was convicted of homicide, and he appeals. The defendant was indicted for killing Jule Tires, with malice aforethought, by shooting him with a pistol. The evidence for the prosecution tended to show that the killing was done at the house of the witness Roland in West Anniston and about 10 o’clock at night. The deceased was at the house, and the defendant came there about 20 minutes before the shooting took place.

Heard before Hon. Joseph H. Nathan. Tlie record showed, after setting out the arraignment by reading the indictment to the defendant and his plea of not guilty thereto, as follows: “It'is ordered by the court, on motion of the solicitor, the defendant, George Brown, being present in person and by attorney, that the trial of this case be set for Wednesday, April 25, 1906. The number of jurors to be drawn was fixed by the court at 35.

Heard before Hon. O. J.’ Sem'mes. Andrew Tliomas Aims convicted of murder, and he appeals. The defendant was indicted for the muuler of Harriet Thomas, by shooting her Avith a pistol.

Heard before Hon. S. L. Weaver. Robert L. Griffin was convicted of assault with intent to murder, and appeals. The defendant was indicted for assaulting Colmer C. Hudson, unlawfully and with malice-aforethought, with the intent to murder him by cutting him with a knife.

Heard before Hon. P. N. Hickman. ■ Tbe defendant ivas indicted, tried, and convicted for an assault and battery on Eva Boyett. The. questions raised on appeal are sufficiently stated in tbe opinion. The indictment should have been quashed. — Blevins v. The State,'68 Ala. 92; Joiner v. The State, 78 Ala: 448. The court erred in putting defendant on trial without the evidence of his witnesses. — Childers v. The State, 86 Ala: S4; Walker v. The Stale, 117 Ala. 88.

<p>Appeal from Geneva Circuit Court.</p> <p>Heard before Hon. H. A. Peabce.</p> <p>Cornelius Andrews was convicted of assault to murder, and lie appeals.</p> <p>The exception reserved to the evidence was the error in permitting the state’s witness to say that he examined the house where it is alleged the shooting took place, near the middle of the day on which the shooting occurred in the morning, and saw signs of some shots made by bullets which had taken effect in the walls of the house, and that he found and saw cartridges or blank shells which had been shot, and that he picked them up near the side of a path which led from .the house of defendant. to the house of the person shot at, and about half way between the two houses. The bill of exceptions states: “The court refused the following written charges asked by the defendant, and marked upon the same -‘Refused.’ ” After setting out the charges, it concludes: “To the refusal of the giving of these charges by tlie court, the defendant duly and legally excepted.”</p> <p>Charge 1 was as follows: “Before the jury can make a conviction in this case, they must believe from all the evidence beyond all 1 easonable doubt and to a moral certainty that the defendant Andrews brought on the difficulty'', and assaulted Jim Hughes, and shot him, and that he was not justified in the shooting.” Charge 3: “If the jury have a reasonable doubt growing out of any portion of the evidence as to the guilt of the defendant, it will be your duty to acquit.”</p> <p>Counsel discusses assignments of error but cites no authority.</p> <p>All the charges were properly refused as many were bad. Johnson v. The State, 141 Ala: 37; Yeats v. The State, 38 South. 760. Charge 1 was bad. — Mann v. The State, 334 Ala. 3; Whatley v. The State, 39 South. 1014. Charge 3 has been frequently condemned. — Liner v. The State, 124 Ala. 4.</p>

<p>Appeal from Wilcox Circuit Court.</p> <p>Heard before tlie Hon. B. M. Miller.</p> <p>George Scott was convicted of an unlawful sale of liquor, and lie appeals.</p> <p>The defendant was indicted as follows: “George Scott did, within the limits of Wilcox county, Alabama, and outside of Camden precinct, in said state and county, sell spirituous, vinous or malt liquors without license and contrary to law. (2) That George' Scott, who at the time was in no wise connected with or acting for any lawful dispensary in said county, did, within the limits of Wilcox county, Alabama, sell spirituous, vinous, or male liquors without licenses and contrary to law, against,” etc. Demurrers were interposed to this indictment as follows: To the first count, because said count contains the words, “And outside of Camden precinct, .in said state and county,” and said words aver an exccqition or proviso not contained in the enacting clause of the law creating the offense sought to be charged, and should not be said in counts, and said count is therefore bad in law. To the second count, because said count contains the words “who at the time was in no wise connected w.ith or acting for any lawful dispensary in said county,” and said words seek to set up negatively an exception or proviso which is not contained in the enacting clause of the statute creating the offense sought to he charged in said count, and said Avoids are not necessary, and should not be in said count, and render said count- bad in Irav, and because said count fails to aver that the dispensary referred to in said count was a dispensary Avhere vinous, malt, and spirituous liquors were sold. These demarréis Avere overruled, and a trial had on the merits. At the conclusion the defendant, requested the following written charges: Charge 1 was the general affirmative charge. Charges 2 and 3 required an aquittal of the defendant, if the jury believed the evidence, on the first- and second counts, respectively. Defendant was sentenced to hard labor to pay fine and costs.</p> <p>The court erred in overruling the demurrers to the indictment. — Acts 1882-3, page 234; 140 Ala. 134. The judgment is defective in not complying with section 4532, Code 1896. There Avas an election and the state should have been held to the election. The general charge as' to the second count should have been given. The court knows judicially there is a laAvful dispensary in said county.— 69 Ala. 235 and having averred that defendant Avas not connected with said vdispens'ary it should have been proven. — 99 Ala. 154; lb. 179; 52 Ala. 124; 115 Ala. 121.</p>

Heard before Hon. W .6. Christian. Luther Coleman was convicted of selling whisky without a license, and he appeals.

Heard before the Hon. G. K. Miller. Eskey Vann was indicted for obtaining money from his employer with intent to injure or defraud him by refusing to perform labor under a. contract to pay such amount in labor. From an order dismissing the indictment on demurrer, the state appeals.

Heard before Hon. J. F. Foster. John Campbell was convicted of obtaining property by false pretenses under a contract to perfoim service, and appeals.

Heard before Hon. W. W. Haralson. Campbell Kennamer was indicted and convicted of hauling logs, lumber or other timber over the public roads of Jackson county without a license as required by the order of the commissioner’s court of said county. The facts sufficiently appear in the opinion of the court. From this judgment of conviction defendant appeals.

Heard before Hon. John H. Disque. . Perry Nicholson was convicted for using obscene language in the presence of a female, and he appeals.

Heard before Hon. Joseph H. Nathan. W. A. Williams appeals from a conviction., ■■ The following is-- a copy of the record as to supplying a juror in,-this cause: -.“On the.22d day of November, 1905, came into open court the grand jury, and the foreman reported that one member of the grand jury, namely, O. C. Gant, was sick and desired to be excused.

Heard before Hon. W. C. Christian. Defendant was indicted, tried and convicted on tbe charge of public drunkenness. Demurrers were interposed to the indictment but as they are not set out in the record they were not considered by the court. The facts ar sufficiently stated in the opinion.

<p>'Appeal from Walker Law and Equity Court.</p> <p>Heard before Hon. T. L. Sowell.</p> <p>Joe Leonard was convicted of burglary, and appeals.</p> <p>The defendant was indicted for burglary of a railroad car, the property of the Southern Railway Company, a corporation, upon or connected with a railroad in this state in which goods, merchandise, or furniture, things of value, were kept for use, deposit, or transportation. Demurrers were filed to- the indictment, as follows: “(1) It fails definitely to charge any offense. (2) It lays the kind or species of property in the alternative, which is alleged to have been taken, and each alternative alleged does not follow, the statute. (3) It charges the species of property alleged to have been taken in the alternative, and one alternative averment is not within the statute. (4) It alleges that the property Avas taken from' á railroad car, the property of the Southern Railway Company, a corporation, but fails to charge whether or not the- corporation Avas a foreign or domestic corporation. (5) The indictment alleges that the railroad car was the property of the Southern Railway Company, a corporation, but fails to sIioav Avliat sort of corporation is alleged to OAvn said car. (6) It is. necessary for the indictment to, charge specifically the name and. corporate character, of the. alleged owner of the car from which it is charged the property was taken, and the indictment fails to do this.”</p> <p>' The evidence for the state tended to show: That a car of goods were shipped to- a mining company at America, in Walker county, Ala., and in the car was a 10-gallon keg of gin and a 30-gallon keg of apricot brandy. That all the goods, except the gin and brandy, were taken from the car by the commissary- keeper1 of the mine, and the doors of the car locked next to the platform. The other door had a seal on it. That a few days afterwards the car was opened for the purpose of getting out the gin and brandy, but these goods were not in the car, and it was discovered that the seal on the door away from the platform had been broken open. The solicitor was permitted to ask the witness Sudduth if he noticed or saw any man track on the ground near the door of the car on the morning it was found.open. The witness answered that he saw tracks and that some of them looked fresh. Defendant moved to exclude this answer. The witness further1 testified that between 100 and 200 yards from where the car was standing on the railroad track the mines were located, and about 250 yards away, on a side track of the mine where defendant was working, he and others found a keg of gin, and that it Avas the same gin that was left in the car, and that it was covered up in a garbage pile. It was shown that the car was on a track of the Southern Railway Company, near Drifton, Ala., Avliich is in Walker county, and that the car Avas marked “M. & O. R. R.” It was further shown that, soon after the alleged taking, the defendant gave a witness a drink of apricot brandy out of a quart bottle. It Avas further1 shown that after the taking the defendant was not seen until lie Avas arrested in Indian Territory and brought back.</p> <p>The evidence for the defendant tended to show, by the testimony of several witnesses, that, soon after the taking of the brandy and gin, Will Eaton, a white -man, and Ridgeway, a negro, came into the mines where defendant was working and offered to sell defendant a keg of apricot brandy, but defendant refused to buy it all, but offered to buy a quart, whereupon the tAvo went away and came back in about 20 minutes- with a quart of apricot brandy, which defendant purchased.</p> <p>The defendant requested the following charges, which were refused: “(1) Before the defendant should be convicted, the law requires that his guilt he fully proven. (2) The court charges you, gentlemen of the jury, that, if there is reasonable possibility of defendant’s innocence from the evidence, the jury should acquit. (3) I charge you that it is not necessary to a reasonable doubt that you should be able to give a reason therefor.” “(5) I charge you that it is not essential to a reasonable doubt- that you should be able to specify or point out the particular part of the evidence from which it arises. (6) If you do not believe the evidence in this case, you will find the defendant- not guilty. (7) If you have a reasonable doubt as to any material facts in the case, growing out of the evidence, you will find the defendant not guilty. (8) The court charges you, gentlemen of the jury, that before you can convict the defendant you must be satisfied to a moral certainty, not only that the proof is consistent with the defendant’s guilt, hut that it is wholly inconsistent with every other rational conclusion; and, unless the jury are so convinced by the evidence of the defendant’s guilt that you would venture to act upon that decision in matters of highest concern and importance to his own interest", you must find the "defendant not guilty. (9) The court charges you, gentlemen of the jury, that, if any individual juror is not convinced of the defendant’s guilt beyond a reasonable doubt and to a moral certainty, you cannot convict. (10) The court charges you, gentlemen of the jury, that each juror is required to be satisfied of guilt- of defendant beyond a reasonable doubt before they are authorized to find a verdict of guilty, and each juror must be separately and segregatelv so satisfied to support a conviction.” “(16) The court charges the jury that a probability that some person may have entered the car and taken the goods in question is sufficient to create a reasonable doubt of the guilt of the defendant, and therefore for his acquittal.”</p> <p>Defendant was convicted and sentenced to the. penitentiary for 18 months.</p> <p>Counsel discuss exceptions to evidence but cite no authority. ■ Charges 3 and 5 should have been given. — Avery v. The State, 124 Ala. 120; Owaley v. The State, 133 Ala. 128; Bell v. The State, 37 South. 281; Smith v. The State, 142 Ala. 14. Charges 9 and 10 assert the proposition that each juror must be convinced beyond all reasonable doubt before a conviction can be had and has often been upheld by this court.</p> <p>Charges requested by defendant and refused by the court were properly refused. — Bowen v. The State, 1.40 Ala: 55; Jones v. The State, 141 Ala. 55; Bones v. The State, 117 Ala. 138; Nichols v. The State, 100 Ala. 23; Prince v. The State, 100 Ala. 144; Avery v. The State, 124 Ala. 20. Charge 6 was condemned in the case of Koch v. The State, 115 Ala. 99. Charge'7 was bad. — Broten v. The State, 142 Ala. 287. Charge 8 was also bad.— Watkins v. The State, 133 Ala. 92; Rogers v. The State, 117 Ala. 9; Amo<s_v. The State, 123 Ala. 54. Charges 9 and 10 were bad.— Gordon v. The State, 140 Ala. 29; Holmes v. The State, 136 Ala. 84; Winter v. The State, 133 Ala. 122.</p>

Heard before Hon. G-. K. Miller. Will Millner was convicted of carrying a concealed pistol, and he appeals. Defendant was indicted for carrying* a pistol concealed. The appeal is prosecuted from a judgment of the court trying the defendant without a jury.

Aureal from Geneva County Court. Heaid before Hon. P. N. Hickman. Jack Saveli was convicted of failing to discharge liis duty as overseer of a. road precinct and be appeals.

Heard before Hon. Thomas W. Coleman, Jr. Pink Boyd was convicted of knowingly receiving, buying, or concealing stolen property, and appeals. The defendant was indicted for knowingly receiving, buying, or concealing stolen property.

Heard before Hon. Samuel B. Browne. Action by Henry V. Davis against Sallie H. Smith. From a judgment for plaintiff, defendant appeals. This was an action by a contractor against the owner for breach of the contract for construction of a home.

Heard before Hon. John Pelham. Action by Robert M. Green & Sons and others against the Lineville Drug Company. From a judgment in favor of defendant, plaintiffs appeal. Action for damages for breach of contract. The contract is set out in the opinion, and is a part of the complaint in each instance. The breach alleged is a refusal of the defendant to accept the goods shipped under the contract.

Heard before Hon. W. J. Pearce. Action by W. O. Dial against C. T. McKay. From a judgment in favor of defendant, plaintiff appeals. This Avas an action on a promissory note, and the complaint is in Code form. The folloAving pleas Avere filed by the defendant: • Pleas 1 and 2 Avere the general issue.

Heard before Hon. H. A. Pearoe. Action by W. W. Beall against R. W. Byrd. From a judgment for plaintiff, defendant appeals. This was an action upon a contract the terms of which- ace sufficiently set out in the opinion of the court.

<p>Appeal from Pike Circuit Court.</p> <p>Hc-arcl before Hon. H. A. Pearce.</p> <p>Action by the Troy Grocery Company against the Merchants’ Laclede National Bank. From a judgment for plaintiff, defendant appeals.</p> <p>This action was commenced by attachment and affidavit in a justice court. The defendant, the national bank, made an appearance, and the justice notified plaintiff, who thereupon executed bond, as required. The Troy Grocery Company then filed its complaint, and the defendant bank demurred thereto, and demurrers weree overruled, and judgment rendered against the bank. An appeal ivas prosecuted from the judgment of the justice court to the circuit court, whereupon defendant moved to quash the attachment and to stay all the pioceedings. The circuit court denied the motion, and on appeal this court reversed the cause and ordered the attachment dismissed. The cause being remanded, the court, proceeding to try the cause, had before it the complaint already' filed and the appearauce of the defendant'bank. Thereupon the defendant filed a plea to the jurisdiction of the court as follows' “That the defendant herein is a national bank, organized under the national bank act for the purpose of doing a banking business, and is domiciled and has its principal place of business in the city of St. Louis, State of Missouri; that this suit was begun against said national bank by the plaintiff suing out a writ of attachment before B.' L. McLure, a justice of the peace in and for Pike county,'Ala., and which writ was issued and levied upon certain property described in the sheriff’s Return as the property of this defendant, and before final judgment was rendered against this defendant. in said court; and that no personal servicee, by summons and complaint or otherwise, has been issued or served upon them. The defendant alleges that the issuance of said attachment and all proceedings thereunder are illegal and void, for that section 5242, Bev. St. IT. S. (IT. S. Comp. St. 1901, p. 3517), among other things, provides.: ‘No attachment, injunction or execution'shall be issued against such association (national bank) or its property before final judgment in any suit, action or proceedings in any state, county or municipal court.’ Wherefore,” etc. To this plea plaintiff filed a replication, setting forth the facts stated above as to the oiigin of the suit and the appearance unconditionally by attorney of defendant. Demurrers were interposed, raising the question of validity of the former proceedings, which were overruled. Proof was made of the facts alleged in the replication, and there was judgment for plaintiff.</p> <p>The attachment proceedings in the justice court were void.- — M. L. National Bank v. Troy Grocery Co., 89 South. 476. The appearance in each instance being special, the appeal from the justice to the circuit court did not give the circuit court jurisdiction. — 98 U. S. 476; 102 TJ. S. 202; 1 Cyc. 525. The replevy bond given by the bank void and of no effect. — Pacific National Bank v. Mixter, 124 U. S. 721. Not having acquired jurisdiction of the property the court could not acquire jurisdiction of the person under, the proceedings here instituted. — L. <f- N. R. R. Go. v. Dooley, 78 Alá, 525; A. G. S. Ry. Go. v. Ghumley, 92 Ala. 317; L. & N. R. R. Go. v. Nash, 118 Ala. 477.</p> <p>If defendant appears and pleads the cause proceeds as is in suits commenced by summons and complaint. — Section 562, Code 1896; 4 Cyc. 807v; Rosenburg v. Clafin, 95 Ala. 252. When the plea to the jurisdiction docs not relate to- the jurisdiction of the court over1 the., subject matter of the plea, the court is without power to permit a plea to the jurisdiction to be filed and sustained after a plea in bar had been filed. — Rarthbuse v. St. Louis, 37 South. 268; Ha/ickins v. Armour, 105 Ala. 545. A statutory appeal is an appearance. — Roach c. Privett, 90 Ala. 394.</p>

Heard before Hod. A. D. Sayre. Action by Emily Clisby and others against P. B. Mas-tin and others. From a judgment for plaintiffs for less than the relief demanded, they appeal. The decree is a final one. — R. cG D. R. R. Vo. v. Sibert, 97 Ala. 393.

Heaid before Hon. H. A. Pearce. Action by John E. Fletcher, for the use of John E. Fletcher and Henry L. Fletcher, late partners under the firm name of J. E. & H. L. Fletcher, against J. A. Prestwood. From an order denying a new tiial, plaintiffs appeal.

Appeal fiom Anniston City Court. Heal’d before Hon. T. W. Coleman, Jr. Action by the St. Louis Coffin Company against J. L. Murphy. From a judgment for plaintiff, defendant appeals. Suit or» the common counts by appellee against appellant. The suit was commenced and summons served on July 27, 1905. On August 15, 1905, the defendant filed two pleas of the general issue. On December 8th defendant was permitted to file plea of payment.

Heard before Hon. Thomas W. Coleman, Jr. Action of assumpsit by the Fisk Rubber Company against Lewis J. Monis, et al. From a judgment for plaintiff defendants appeal.

Heard before 1-Ion. A. H. Alston. Action by J. A. Penton against joe Williams. Judgment for defendant, and plaintiff appeals.

Appear from Madison Circuit Court. Heard before Hon. T). W.,Speake. Action by Otto Young & Go. against F. A. Howe, Jr., and. oiiiers. From a judgment for defendants, plaintiffs appeal. This was an action against F. A. Howe, Jr., begun in tlie justice court, and taken by Howe on appeal to the circuit court, for which appeal he executed the usual appeal bond, with two sureties, conditioned as usual in such instances.

<p>Afpe.vx. from Cherokee Circuit Court.</p> <p>Heard before lion. W. W. Haralson.</p> <p>Action by the Union Fertilizer Company against W. E. Johnston and others. From a judgment for plaintiff, defendants appeal.</p> <p>This is an action on a bond or bill single. The instrument offered in evidence was a deed of trust executed on January 20, 1902, to George I). Motley as trustee, to secure an indebtedness as set forth in said deed of trust to the Union Fertilizer Company,, in the sum of $621.66, payable $250 in 30 days after date, and $371.66 on November 1, 1902, and conveyed a lot of land described therein. No objection was interposed to the introduction of the trust deed in evidence. At the conclusion of the testimony the court gave the affirmative charge for the defendants.</p> <p>In determining whether a new contract is so connected with an illegal contract as to also render it illegal the test is, whether the plaintiff, in establishing his case, is required to resort to the illegal contract; if required to resort to the illegal contract, the new contract will be held illegal, ancl if not, it will be held legal. — 15 A. & E. Enc. of X-aw (2nd Ed.) 993; Gunter v. Leckey, 30 Ala. 591; Walker v. Gregory, 36 Ala. 189; Hoffman v. McMullen. 83 Fed. Rep. 372; Frost v. Plumb, 40 Conn. Ill; Hatch v. Hanson, 46 Mo. App. 323; Roselle v. Beckmeir, 134 Mo. 389; ¡State v. Bevers, 86 N. C. 588. Agreements made by way of compromiso made in settlement or avoidance of litigation may be specifically enforced in the absence of fraud, misrepresentation or concealment, even though it be afterwards discovered that no foundation existed fo.T the doubt as to the legal rights which led to the comnromise. — 8. & ~N. R. R. Go. v. H. A. & B. R. R. Go., 119 Ala. 105.</p>

Heard before Hon. S. H. Sprotty Action by Samuel C. Lewis against Thomas L. Smith. From a judgment for defendant, plaintiff appeals. Appellee is liable for the purchase price of ten bales of cotton and it is of no consequence that he purchased same as the agent of Smith & Coughlin or on his owm account. — Section 4769, Code 1896; section 22, Code 1896; Black shear v. Burke, 74 Ala. 239.

Heard before Hon H. A. Pearce. Action by the American Soda Fountain Company against J. D. Blue and others. From a judgment for plaintiff, defendants appeal. The name of a corporation is like the name of an individual.—137 Ala. 116. The first replication was insufficient.—TArkle v. Jemes, 129 Ala. 444. Under the proof the second and third replications fall' as does the fourth, and sixth. The fifth replication is bad on the authority above cited.

Heard before Hon. J. C. Bigi-xardson. Action by the McJAllister-Coman Company against Charles J. Matthews and. others. Prom a judgment foi defendants, plaintiff appeals. This is an action for goods sold. The first three counts sufficiently appear in the opinion of the court.

Heard before Hon. M. Solly, Special Judge. Assumpsit by J. J. Winn, Jr., against I). L. Walker, Winn sneing in a representative capacity as administrator of the estate of J. E. Crews, deceased. From a a judgment for plaintiff, defendant appeals. One Walker executed a note and mortgage to Zachariah Bush, with T). L. Walker, the present defendant, and one Baker as sureties on the note.

Heard before Hon. Thomas H. Smith. Bill by D. H. Williams against the Intendant and town council of Gainesville and others. From a decree for defendants, plaintiff appeals. Bill seeking to enjoin the erection and maintenance of a wharf across Water street, in the said town, where it intersects with the Tombigbee river.

Heard before Hon., W. L. Parks. Bill by W. S. Grace and another against Sellers, Bullard & Co. From a decree for,plaintiffs, defendants appeal. The Complainants have a plain and adequate remedy at law and ah action at law could have been maintained in this case. — Moragne v. Doe, 39 So. Rep. 161. The forgery of a deed by a. third person is not enough to invoke equitable interposition.

Appeal fro-m Madison CL an eery Court. Heard before Hon. W. IT. Simpson. Bill by Ruby Lawing and others against B. Posey Phillips and another. From a decree overruling defendants’ demurrer to the bill and a motion to dismiss the same, they appeal. This was a bill piesented by Ruby Lawing, Arthur R. Phillips, and Peal McCullough, by next friend, against B. Posey Phillips and Martha Phillips.

Appeal fiom Mobile Chancery Court. Heard before Hon. Thomas H. Smith. Bill by Patrick C. Hannan and others against B. J. Paterson and others. From a judgment from complainants, defendants appeal. Until beyond reasonable controversy the mistake is made to appear, the writing must remain the sole expositor of the intent and agreement of the parties. — Smith v. Allen, 102 Ala. 408; Hertsler, Jr. v. Stevens, 114 Ala. 337; Hinton v. Gits. Mut. Ins.

Heard before Hon. W. W. Whiteside. Bill by the Farmers & Merchants Bank of Abbott, Tex., for interpleader in proceedings for the settlement of the estate of ,J. D. Howell, deceased, of' which J. B. Sanford was administrator. From a decree dismissing the hill, orator appeals. This was a bill filed by the Farmers' & Merchants’ Bank, a partnership, for inter-pleader in the cause pending in the Olay chancery court. The case made by tbe bill is that at a time when W. 8.

Heard before Hon. Thomas H. Smith. Bill by John A. Bolen against R. G. Allen, sheriff, and Mrs. Zedora Hoven, to quiet title to a strip of land and to enjoin sheriff from executing process until the title to said land could be deteimined. The facts are sufficiently stated in the opinion of the court. From a judgment for respondents, complainants appeal.

Heard before Hon. Thomas H. Smith. Bill bv Melissa D. O’Daniel against W. C. Gaynor, as administrator, and others, from a decree sustaining demurrers to the bill, complainant appeals. Affirmed.

Heard before Hon. W. IT. Simpson. Bill by Fannie Hayes and others against, the Southern Railway Company. From a decree for complainants, defendant appeals. This was a bill exhibited by Fannie Hayes, and Clifton, Bessie, Stella, Walter, Minnie, Arthur, Lucile, and Memory Hayes, by Fannie Hayes, next friend, against the Southern Railway Company.

Heard before Hon. W. H. Simpson. Bill by Acton C. Hartshorne and others against the Southern Kailwav Company and others. From a decree overruling a demur icr to the bill and motion to dismus the same, defendants appeal. This was •> bill by judgment creditors of the city of Decatur, Ala., a municipal corporation.

Heard before tlie Hon. Thomas W. Coleman. Jr. Bill by L. H. Kaplan and others against J, Bernstein and others. From a judgment for plaintiffs, defendants appeal.

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. Alfred H. Benners.</p> <p>Bill by T). W. Graybill and others against I). M. Di enríen and oihers to annul a contract for the sale of certain bonds, slocks, etc. From a'judgment overruling denimrers 1o certain pleas, plaintiffs appeal,</p> <p>The contract is made an exhibit to the bill, ard the theory of the bill is that the respondents made false representation to complainants concerning the' value, etc., of the property and stock, upon which ie,span dents relied to their injury. There was motion to dismiss the bill for want of equity, and demurrers to'the bill. The motion to dismiss was overruled, but the demuriers were sustained, and the bill amended to meet the demurrers, and answer was filed to the bill, which answer contained, the following pleas: First and second not necessary to be set out. “(3) Complainants, before the purchase of said property, had an examination and investigation made of the property and business of the Palos C<"-ke & Coal Company, by an expert in such matters, and were informed and advised of the condition and status of said property before entering into the contract for the purchase of the stock and bonds of said company.” Fourth not necessary to be set out. “(5) Complainants, after the purchase of the stock and bonds of the Palos Coke & Coal Company, for the cancellation or rescission of the contract of sale of same the hill in this case is filed, had assumed control immediately on, to wit, October 17, 1903, of the said corporation, and managed and operated the mines and business of said corporation, for a period of of time, towit, 12 months, before offering to rescind said contract. (6) After complainants on, to wit, October 17, 1.903, became the owners of 1,495 shares of the capital stock of the Palos. Goai & Coke Company, and became and were the directors in charge and contiol of said corporation, and the complainant Ira P. Bockermel became and was the president of said corporation, and complainant A. S. Seidel became and was secretary and general manager, and after' becoming and being the owner of said stock, and being the president and secretary and directors, respectively, as aforesaid, said complainants sold said 90 bonds to Drennen & Co., of which firm respondents are members, the .said 90 bonds mentioned in said bill of complaint being in consideration and in payment of certain bona fide existing indebtedness due by said corporation to said Drennen & Co. for goods, wares, and merchandise, and money advanced and furnished said corporation by said Drennen & Co., and upon the further consideration that said Drennen & Co. were to pay all outstanding indebtedness of said corporation, excepting only certain taxes, and the money provided in the deed of trust to be paid as a sinking fund, and that said act on the part of said corporation was deliberated and agreed upon by complainants as stockholedrs, directors, and officers, and after said corporation had thus issued to said Drennen & Co., said 90 bonds, and with full knowledge on the part of complainants of all said facts of the said issue of said bonds, complainants, thereafter purchased the said 90 bonds, and said purchase by complainants from respondents of said. 90 bond? is the only sale by respondents to complainants of said 90 bonds, or any other bonds, of. said, corporation. A copy of the minutes of .said corporation showing said facts is hereto attached, marked ‘Exhibit--and referred to, and made a part hereof.. A copy of the conveyance or contract between said corporation and Drennen & Company, whereby said bonds were issued and transferred to said- Drennen & Company, is hereto attached,. marked . ‘Exhibit —-and • referred to. and made a part hereof. (7) As a part of the purchase money for the stocks and. bonds purchased by complainants, they executed to respondents certain notes, as prdyided'in the contract and ágreeñient, a'copy of which' is attached to the original bill, ■ and after having asstuned Control and management o-f the affairs of the’Palos *Goál*'& Ooké Company, complainants on- to Avit/'thé —:-day of -"-, paid respondents bn said notes the sum of'$7,000,-the proceeds'of'the sale' of 7-of said* bonds,'as provided’in paragraph 3 of said-'contract and agreement; and- on, to Avit, the --— day of ', complainants paid to respondents the sum of $6,ROO' on * said; notes',’ tlie-prbceéds of the sale of .6- of said-bonds; as'próvide'd in said paragraph 3' of said coil:‘ ti'a'Cts and agreement; andy-to-Avit/on-tlib ■ ■' "• day-of '' *' — , c'om-p'lai'nants renéwéd find sebirred an extension of the payment of -certain o'Tsaid'notes; and' thereby-ratified ' find confirmed' the 'said contraed.” ; -These: plea's, AAfith'-others,-Avere'Stet- down for hearing-, arid* by the''chancellor held sufficient;' and * fr 'em this decree ’this 'appeal is'prosecuted. v ' ; " ' “ -</p> <p>A'-fraudulent representation of á material fact when relied upon and acted npon to the damage of the’party toWhom made, furnishes grounds for avoiding the contiact, — 5 Mayf. p. 464, sec/ 2.</p> <p>The court properly held the 3rd plea sufficient. — •Groio'n -v. Garriger. 66 Ala. 590; RlaugMer v. Gerson., 13 Wall 369. If, after repiesentation of a fact, however positive, the party to Gvliom it is made has recourse to the proper means for obtaining information- and actually learns the real facts, he cannot claim to have been misled by the misrepresentation. — N. O. <& A. G. & M. Go. v. Mus-grove, 90 Ala. 429; 125 Ala'. 482; 72 Ala. 209; 93 Ala. 529; lb. 549: The 5th plea Avas' nroperly held sufficient. —115' Ala. 366; lb. '418; 90 Ala. 150; lb. 172; lb. 441; 87 Ala. 158-; 27 Ala. 243; 39 South. 403. One may not keep the fruits of the contract and aftenvards reject the contract.- — Loclaoood v. Fitts, 90 Ala. - 154; Dill v. Kemp, 27' Ala. 243; Baker v. 'Maxwell, 99 Ala. 568. Where one'receives benefits after knoAvledge of fraud he cannot rescind the contract on account' of .'fraud. — Ste'-' ven sunv Allison, 123 Ala. 439:</p>

<p>Bill for Review.'</p> <p>1. Process; Service by Publication; Application for'Orcler; Proof of Agency. — Where affidavit is made by an agent for the purpose of obtaining an order of publication to get service, if the fact of agency is recited in the affidavit,, the agent’s authority is sufficiently shown.</p> <p>2. Same; Affidavit; Presumption as to Personal Knowledge. — Where the affidavit is rested upon the. positive declaration of affiant, and not upo# information and belief, ft will be presumed that the facts stated are within tlie knowledge of affiant.</p> <p>3. Same; .Order of Publication; Sufficiency. — Under Sec. 690, Code 1896, an order- of publication ■ is sufficient to give jurisdiction though containing no subject matter with reference to the suit or to the title and interest of unknown defendants therein mentioned. ■</p> <p>4. Equity; Bill of Review; Scope. — Certain notes not having, been made exhibits to the bill or referred to in the register’s report the fact that these .notes were attached to the report of the register, do not show, error apparent on the face of the proceedings or decree and are not available as error on bill of review.</p>

<p> Bill to Remove Administration from Probate to- Chancery Court. </p> <p>1. E.reciitors and Administrators; Administration of Estate; Jurisdiction of Courts. — Section 331, Code 1896, has reference to actions to fix liability npon estates, and not to the removal of the estate from the probate to the Chancery court and where the probate court has taken no jurisdiction of the estate to make a final settlement thereof a beneficiary under the will, may, within six months after the administration and without assigning any reasons therefor file a bill for the removal of the estate from the probate to the chancery court.</p> <p>2. Same; Bill — A bill which alleges that the complainant agrees to the provisions of the will and that ’the administrator qualified a month prior to the filing of the bill, and praying for the removal of the administration of the estate from the probate to the chancery court and for a sale of the devised realty for distribution does not invoke the court’s action for á sale of the realty independent of the orderly administration of the estate but in the due course of administration, and it further appearing therefrom that there is sufficient personalty to settle the debts of the estate such bill is not subject to demurrer and is sufficient to authorize the relief prayed.</p>

Heard before Hon. Charles W. Ferguson. Bill by George Griffin against W. M. Drennen and others. From a decree for plaintiff, defendant Drennen appeals. This case, is reported in 40 South. 1016, and 145 Ala. 128, and the purpose and allegations of the hill and the main defenses set up to it appear in the report of the case as above set out.

Heard before Hon. Alfred H. Benners. Bill by Keystone National Bank and others against the Palos Coal & Coke Company and others. From a decree for defendants, complainants appeal. The bill is exhibited against the Palos Coal & Coke Company and the members composing the firm of Drennen & Cc. Its allegations and purposes are sufficiently-stated in the,opinion.

Appeal . from Houston Chancery ,Court. 'Heard, before Hó¿. W. L.'Parks. Bill by E. Meyrovitz.against J. L.. Crawford and others. ' From a decree overruling a motion to dismiss for want of equity,,defendants appeal.

<p> Bill for Redemption of Land From Mortgage. </p> <p>1. injunction: Mortgage, Sale; Sufficiency of Bill. — A bill to enjoin a mortgage sale which aArers a tender of the amount due; offers to pay any balance which may be ascertained to be due and prays in the alternative to be permitted to pay what may be fotuid due and have the mortgage cáncelled contains equity and is good against a motion to dismiss for want of equity.</p> <p>2. Pleadings; Conclusion. — An averment in a bill to enjoin a mortgage sale, that no attorney’s fee is due under the mortgage states merely a conclusion of the pleader.</p> <p>S. Mortgage; Tender; Sufficiency. — Unless interest from maturity of the debt to the date of the tender is offered the tender is insufficient.</p> <p>4. Same; Maturity ■ Clause. — -A maturity 'clause in a mortgage providing that all installments should mature on a sale of the land by the mortgagor is binding upon one who purchased subject to the mortgage.</p>

Heard before the Hon. Thomas H. Smith. Bills by the Mississippi Cotton Oil Company, by the Eagle Cotton Oil Company, and by the Meridian Fertilizer Factory against the town of Cuba. From a decree for complainants in each case, defendant appeals. The town of Cuba had the right, to make regulations to secure the general health of the inhabitants and to prevent and remove nuisances at the expense of those causing them. — Acts 1900-01, p. 2519; Section. 2393, Code 1896.

Heard before Hon. Thomas H. Smith. Bill by Jack F. Ross against the American Banana Company. Fiom a judgment sustaining a demurrer to the hill, complainant appeals.

Heard before the Hon. W. L. Parks. ' Creditor,s’ bill by Arbuckle Bros., and others against the Columbia Grocery Company and another. Prom a decree for defendants, complainants appeal.

Heard before I-Ion. A. D. Sayre. Bill by J. T. Rutledge and others against F. J. Cramp-ton and others. Bill dismissed, and plaintiffs appeal. This was a bill filed by T. J. Rutledge, as pext friend of certain minors mentioned in the bill, and T. J. Rutledge, R. H. Rutledge, and A. D. Rutledge, against F. J. Crampton, and prays for a sale of certain lots therein described for a. division between the joint owners t-hei eof.

Heai'd before Hon. Alfred H. Benners. Bill by Joseph A. Magnus & Co., as simple contract creditors, of the estate of decedent against Harry Eensford, as administrator and individually, and Mary E. Eensford, for the removal of the administration from' the probate to the chancery court. Fiona a decree overruling joint demurrers this appeal is prosecuted by Harry Eensford.

Heard before Hon. A. D. Sayre. Bill by Andrew Carpenter and others against J. W. Abercrombie. From a decree for complainants, defendant appeals. Counsel discusses assignments of error but cites no authority.

Heard before the Hon. W.'W. Whiteside. Bill by Lee Wilkerson by her guardian against Malinda Holloway and others to enforce a resulting trust in land. From a decree for complainant respondents appeal. Long acquiescence disables the cestui'que trust from coming into a court of equity to avoid a sale or to assert a trust.— James v. James, 55 Ala. 523; Greenlees v. Greenlees, 62 Ala. 330; 2 Storey’s Eq. sec. 1520.

Heard befoie Hon. William Jackson. Action by James Fulton against the Alabama Great Southern R. R. Co. for damages for personal injuries alleged to have been suffered because of the negligence of the employees of defendant in causing plaintiff's mule to run away, etc. From a judgment for plaintiff, defendant appeals. This action was brought to recover damages alleged to have been suffered by plaintiff by reason of the negligence of the defendant’s employees.

Appear from Mobile* Cimiit Court. Heard before Hon. Sautter B. Browne. Action by Henrietta Fields, administratrix of Robert Isble, deceased, against the Home Telephone Company, for tlie death of the deceased. From a judgment for plaintiff, defendant appeals.

Appear from Walker Law and Equity Court. Heard before Hon. T. L. Sowerr. . Action for damages by S. J. Wright against the K. C. M.-& B. R. R. Co. The facts upon which the opinion is based sufficiently-appear therein. 'From a judgment.for defendant plaintiff appeals.

Heard before Hon. W. W. Haralson. Action by Samuel Gullatt, as administrator, against tlie Southern Railway Company. From a judgment for plaintiff, defendant appeals. This Nas an action for killing á person on defendant’s right of way or track. Demurrers were interposed to the first count, and sustained. The third count was charged out by the court.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. A. H. Alston.</p> <p>Action by Charles W. Watson against the Birmingham Railway, Light & Bower Company, Judgment for defendant, and plaintiff appeals.</p> <p>This was an action for injury on account of negligence. The only matter brought to the attention of the court is the pleadings, and plaintiff’s declination to plead over, and its results, all of which sufficiently appear in the opinion.</p> <p>Counsel discuss the action of the court upon the pleadings and cite authorities to sustain their contention of error but do not discuss the propositions decided in the opinion,</p> <p>Counsel discuss the case as presented on the appeal citing authorities to sustain the court’s action thereon, hut cite no authorities on the points decided in the opinion.</p>

Heard before Hon. John Pelham. Action by Cora Williams against the Louisville & Nashville Railroad Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. The court erred in sustaining the demurrer to count 4 of the complaint.— Southern Railway Co. v. Douglass, 39 South. 268. It is unnecessary to name the employees whose negligence caused the damage. — Montgomery Ry. L. & P. Co. v. Adams, 40 South. 385; Armstrong v. Montgomery St. Ry.

Heard before-Hon. A. A. Coleman. Action by Morgan Brown against the Birmingham Railway, Light & Power Company. Judgment for plaintiff. Defendant appeals. This was an action for damages by a passenger for injuries received while being transported as such from Birmingham to Randolph Station on one of defendant’s cars operated by electricity.

Heard, before Hon. A, A. Evans. Action by Jesse McNab, suing by bis next friend, Alf McNab, against the Central of Georgia Railway Company. From a'judgment for plaintiff, defendant appeals. The appellee sued appellant' for personal injuries received from being thrown from appellant’s train. The pleadings may be gathered from what is said of them in the opinion. This is also true as regards most of the material evidence in the case.

Heard before Hon. C. W. Ferguson. This was an action by Jefferson 1). Myers,'an employee of the defendant against the Birmingham Rolling Mill Company for injuries received while using defective machinery. From a judgment for plaintiff in the sum of $1,800.00, defendant appeals. The nature of the action, and the trial court’s' action on the pleadings and the facts of the case, sufficiently appear in the opinion of the court.

Heard before Hon. I). W. Speake. Action begun by Charles Anderson as the administrator of Cus Petty against tlie L. & N. R. R. Co. From a judgment for plaintiff, defendant appeals.

Heard before Hon. C. W. Ferguson. Action by A. J. Smith, administrator, against the Pioneer Mining & Manufacturing Company. From a judgment for plaintiff, defendant appeals. This was an.action begun by appellee against appellant, under subdivision 1, § 1749, Code 1896.

Heard before Hou. W. W. Haralson. Action by B. -F. Shook, administrator, against tlie Southern Railway Company. From a jurgment for plaintiff, defendant appeals. This Dvas an action by an employee of the defendant, or rather by the administrator of an employee, and the cause of the death was by reason of a defect in the condition of the ways, works, machinery, or plant connected with or used by the defendant in its business.

Appear from Birmingham City Court. Heard before Hon. Chas. A. Senn. Action by John T. Johnson against the Woodward Iron Company. Judgment for plaintiff, and defendant appeals. Reversed. The complaint consisted of a number of counts all of Avhicli Avere charged out at the request of the defendant except count O as amended. The substance of the count is stated in the opinion with sufficient clearness.

Heard before Hon. T. L. Sowell. Action by Richard I). Andrews against the' West Pratt Coal Company. From a judgment for plaintiff, defendant appeals. The character of the action, the complaint, and the demurrers thereto are fully set out in the opinion.

Heard before Hon. P. N. Hickman. Action-by A. E. Jones against the Central of Georgia Railway Company. From a judgment for plaintiff; defendant appeals. A passenger- is only allowed a reasonable time within which to remove his baggage and if- he fails to do so the liability of the compány as common carrier ceases: — 6 Cyc. 672-; 3 A. & E„ Ency. of Law, 564; Roth v. Buffalo, and-8. L. R.-B. Go., 90'Am: Dec. 736.

Heard before Hon. B. M. Miller. Action by J. A. Elliott & Son against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. No case we have been able to discover holds the carrier liable where the negligence complained of was not actively existing at the time of the occurrence of the act of God from which the injury was directly caused.

<p>Appeal from Mobile Circuit Court.</p> <p>Heard before Hon. Samuel B. Browne.</p> <p>Action by A. Y. Glover v. M. & O. R. R. Co., for damages for' hilling a dog. Prom a judgment granting plaintiff a new trial defendant' appeals.</p> <p>The pleadings were as' follows:</p> <p>Complaint: “The plaintiff claims of the defendant $75 damages, for that one' of defendant’s engineers, whose name is unknown to plaintiff, on, to-wit, March 14, 1904, while operating a'train of cars for defendant ovei* and along the track of the defendant’s railroad at and near Seaberrv Creek, in Mobile county, Ala., negligently ran said train against, and killed, a black and tan hound named ‘Leek,’ the property of the plaintiff.”</p> <p>Plea: “Now comes the defendant, the Mobile & Ohio Railroad Company, by its attorney, and defends the wrong and injury, when, etc., laid to its charge in plaintiff’s coniplaint, and says the plaintiff ought not to have and maintain its aforesaid action against it, because it says it is not guilty of the several wrongs and grievances laid to its charge in plaintiff’s complaint, nor either, of them in manner and form as alleged;-and of this it puts itself upon the country.”</p> <p>New trial was granted upon motion of plaintiff for errors stated in the opinion.</p> <p>Negligence cannot be presumed against the railroad for killing stock at a place other than the statutory place on the sole proof that the track at that point was straight, unless plaintiff proved that the railroad inflicted the injurv. — A. G. 8. R. R. Go. v. Boyd, 124 Ala. 525; K. G. M. & B. R. R. Go. v. Henson, 132 Ala. 528. The charge complained of is under the facts in this case, not error. — Jones v. Boyd,, 40 Fed. 281; Jemison v. Railroad, 75 Ga. 446; Wilson v. Railroad Go,, 10 Rich (.S. C.) 52; Railroad Go. v. Halliday, 79 Miss. 294. Defendant being entitled to the general charge, the court improperly granted a new trial on account of the defect.</p> <p>It needs no citation of authority fo show that the court was correct in granting a new trial.</p>

Heard before Hon. A. E. Evans. This was an action by C. O. Martin against the Central of Georgia Railway Company for damages for the negligent killing of his dog. The facts sufficiently appear in the opinion of the court. From a judgment for plaintiff defendant appears. The court erred in sustaining demurrer to defendant’s special plea. — L. & A, R. R. Co. r. Williams, 105 Ala. 379.

Heard before Hon. Samuel B. Browne. Action by the Christian Moerlein Brewing Company against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Action by appellee against appellant for killing certain stock. The facts are sufficiently stated in the opinion. Certain charges given at the instance of the plaintiff are assigned as error.

<p>Appeal from Houston Circuit Court.</p> <p>Heard before Hon. T-I. A. Pearce.</p> <p>Action by M. F. Simons against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals.</p> <p>Negligence alone does not give a right of action. It must have resulted in injury before a recovery can be had. — E. T. V. & G. R. R. Co. r. Bayliss, 75 Ala. 472; Clements Railroad Co., 77 Ala. 537; E. T. Y. & G. R. R. Co. v. Kennan. 81. Ala. 184; .1/. & G. R. R. Co. v. Calchrell, 83 Ala. 199; Hilliker-Crebb Co. v. B. R. & E. Co., 100 Ala. 425; N. C. & St. L. Ry. Co. r. Hembree, 85 Ala. 485; G. P. Ry. Co. V. Hughes, 87 Ala. 615; Flippo’s Case, 138 Ala. 498.</p> <p>Under the facts in this case the burden is on the railroad to clear itself of negligence. — Secs. 3440-43, Code 1896; CrommeliiPs Case, 67 Ala. 581. The evidence showed that the entire train was not equipped with air and hence was not equipped with modern appliances used on well regulated railroads. — Southern Ry. Co. v. Shirley, 128 Ala. 599.</p>

Heard before Hon. A. A. Evans. Action by George H. Wilde against L. E. Irby for assault and battery. From a judgment for plaintiff for |500, defendant appeals. The complaint followed the Code form, and contained no allegation of special injury as a basis for a claim for damages. The complaint followed the code form and special, damages were not recoverable thereunder unless specially pleaded.

..Appeal from Autauga Circuit Court. Heard before Hon. S-. L. Brewer. Action by Georgia Ann Wainwrigbt against tbe Mar-bury Lumber -Company and others. From a judgment for plaintiff, defendants appeal. Tbe charges refused to defendant were as follows: “(1) If the jury believe tbe evidence, they must find for tbe defendant the Marbury Lumber Company.

Heard before Hon. Thomas W. Coleman, -Jr. Action by Amazonia Cobb, ■ administratrix; against. W. T. Owens. Judgment for defendant, and plaintiff-appeals. Reversed, rendered and remanded. This was an action by Mrs. Amazonia Cobb, administratrix of the estate of-Thomas Cobb,-deceased, against W. T. Owc-ns, for unlawfully and with force of .arms cutting and mortally wounding plaintiff’s intestate.

Heard before 1-Ton. Samuel B. Browne. Action by Sallie Williams against B. F. Hardeman. From a judgment for plaintiff, defendant appeals.

Circuit Court. Heard before the Hon. J. O. Richardson. Action by Dewitt Lovelace against Henry Miller and another. Judgment for clefeiidant, and plaintiff appeals. The plaintiff requested the following written charges, which were refused .by the court: “(1) The coxxrt charges.you, gentlenien of the jury, that, if you believe the evidence in this case, you must find for the plaintiff as against the defendant T. R. Miller for the actual damages plaintiff-has sustained.

Heard before Hon. S. H. Spkott. Action by H. Botnick against the toAvn of EutaAV. Prom a judgmentNor plaintiff, defendant appeals. The defendant had a right to show that the plaintiff had offered to sell his property for a less sum than he testified that it was worth! — 6 Am. & Eng. Enc. Laiv, (1st Ed:) 620; ÉrtMdywine '& 1$. Rif: Co', v. Rancié, 78 Pá. 454 '^Springer y. City of Chicago, 12 L. R. A. 609.

Heard before Hon. John H. Disqtje. Action by J. M. Elliott, Jr., against'E. 0.'Jones and another. From* a judgment for plaintiff, defendants appeal. Plaintiff sued defendants for permitting stock to run at large within a district in which stock are prohibited from running at large, to his damage in the sum of $50.

Heard before Hon. John Moore. . Action for damages for entering upon leaded premises and interfering with sub-tenants of lessee, .begun by J. M. Varner against V. A. Hatch. From a judgment for plaintiff, defendant appeals.

Heard before Hon. W. W. Haralson. ' This is an action for false imprisonment begun by-Robert Esters against F. D. Hurt, clerk of the circuit court, for a false imprisonment alleged to have grown out of the wrongful sentence to hard labor. The court sustained demurrers to the complaint' and ..remarked •that under no state of facts could the defendant be held liable.

Heard before Hon. Samuel B. Browne. Action by John Doe on the demise of Delage and others against Bichard Boe and others. The facts sufficiently appear in the opinion of the court. There was judgment for defendant and on motion this judgment was set aside and a new trial granted, and from the judgment granting the new trial this appeal is prosecuted.

Heard before Hon. R. W. Stoutz, Special Judge. Action by Zedora Hoven against E. J. Bolen. From a judgment for plaintiff, defendant appeals. The petition in the probate court was sufficient. — Cotton v. Holloioay, 96 Ala. 544; Bmith v. Brannon, 99 Ala. 448; Kent v. Mamsel, 101 Ala. 334; Garner v. Toney, 107 Ala. 352. See, also: Lyon v. Uamner, 84 Ala. 197; Friedman v. Bhambliiij 117 Ala. 467; Neville v. Kennedy, 125 Ala. 155, and cases therein cited.

Heard before Hon. Thomas W. Coleman, Jr. Action by W. L. Bain against James JR. Bain and others. From a judgment for defendants, plaintiff. appeals. This was an action of ejectment between brothers.

Heard before Hon. John Gf. Winter. Action in ejectment by James Chappell against J. T. Roberts. From a judgment for plaintiff, defendant appeals.

Heard before Hon. Samuel B. Browne. Ejectment by John Doe, on the demise of Julia Trotter, against Delpliine Moog. From a judgment for defendant, plaintiff appeals. Fraud practiced on the grantor in the procurement and execution of a deed renders the deed void. — Morclecai v. Tankersly, 1 Ala. 100; Shelby Iron Go. v. Ridley, 135 Ala. 513. Appellee cannot, therefore, claim as a bona fide purchaser for value. — Wood r. Holly Mfg. Co., 100 Ala. 352.

Heard before Hon. Charles P. Jones, Special Judge. Ejectment by Salome B. Wilkinson and others against the Lehman-Durr Co. From a judgment for defendant, complainants appeal. If Wilkinson ivas of unsound mind at the time he conveyed the property to H. Z. Wilkinson, then the deed ivas void and title to thé property never passed out of W. W. Wilkinson. — -Wilkinson v. Wilkinson, 30 South. 578; Dougherty v. Poioe> 30 South. 524; Liverpool L. cG G. Go. v. Tillis, 110 Ala. 200.

Appear from Henry Circuit Court. Heard before Hon. H. A. Pearce. Action by Lucy A. Roach against James M. Snell. From a judgment for plaintiff, defendant appeals. The plaintiff in the ejectment suit, appellee here, was a daughter of Joel McLendon, the former owner of the land. She ivas more than 21 years of age when her father died, ,in 1863.

Appear from Morgan Circuit Court. Heard before Hon. I). W. Speaice. Action by T. B. Drinkard against O. A. Oden. From a judgment for defendant, plaintiff appeals. The 1st and 2nd grounds of demurrer to defendant’s jilea should have been sustained. There Is no room for construction. — Hilliard v. The State, 100 Ala. 634; Index Annimo Surmo; M axioell v. Tli e State, 89 Ala. 150; Harrison v. The State, 102 Ala. 170; Montgomery v. Gaston, 126 Ala. 446.

Heard before Hon. B. M. Miller. Detinue to recover a gray mule by G. H. McKee against John Beal. From a judgment for plaintiff, defendant appeals. The plaintiff derived title through a mortgage, which is set out in the record, and it was shown that at the time the suit was brought, the defendant was in the possession of a mule.

Heard before Hon. B. M. Miller. Action by W. W. Williams against S. J. Yining. Judgment for defendant, and plaintiff appeals. The court clearly erred in giving tlie general affirmative charge for defendant. The legal title, cannot he conveyed to a grantee where, there is no such title in the grantor. — Calhoun r. Thompson, 5(5 Ala. 171.

Heard before 1-Ion. AY. AY. Haralson. Action by John A. Lusk against Hammond Bros. & Co. From a judgment denying a motion to amend a judgment entered nunc pro tunc, defendants appeal. The court should have granted the motion to amend the judgment entry nunc pro time.

Abdeal from Etowah Circuit Court.. Heard before Hon. IV. IV. Haralson. Action by John A. Lusk against Hammond Bros. & Co. From a judgment for plaintiff, defendants appeal.

Original Petition in the Supreme Court. Petition by the state on tlie relation of tlie Attorney-General for a writ of prohibition to restrain tlie Hon. S. L. Weaver, one of the judges of the Jefferson criminal court, from hearing and determining habeas corpus proceedings sued out by one' convicted in another court, and committed to tlie Jefferson county jail for safe keeping, after conviction and sentence.

Heard before Hon. H. A. Pearce. Prosecution by tlie town of Dotban against M. I). Hornsby for soliciting insurance without a license. From a judgment discharging defendant, prosecutor appeals. Under the facts as agreed on the appellee was clearly a commercial broker, or broker within* the meaning and definition of the law. and was (dearly amenable to the ordinances of sai(l town. — Stratford r. City of Montgomery, 110 Ala. 619; 2 A. & E. Ency. of Law, p. 57; 1 Bouv.

Appear from Selma City Court. Heard before Hon. J. W. Mabry. Paul Shivers was charged with violating an ordinance of the city of Selma. From a judgment discharging accused, the city appeals. The affidavit charges that Henry Fair has probable cause for believing and does believe that on dr about the 23d day of December, within the limits of Selma and in the county of Dallas, the offense of assault with weapon lias been committed, and charging Paul Shivers with the offense.

Heard before. Hou. H. L. Brewer. Action by S. M. Cotney against I). W. Baker. From a judgment for plaintiff, defendant appeals.

Heard before Hon. William Jackson. Action by T. M. Salter against Louis Goldberg to establish a mechanic’s lien. From a judgment for plaintiff, and an order refusing a new trial, defendant appeals. This was an action to enforce a lien upon a house and lot for the sum due for painting said house. The description of the lot is set out in the opinion. The other facts sufficiently appear in the opinion.

Heard before Hon. Charles A. Senn. Quo warranto by the state, on the relation of Yon L. Thompson, against Thomas Oolias and others. From a judgment sustaining defendants’ demurrer to the petition and dismissing the petition, relator appeals.

Heard before Hon. Ed B. Almon. L. Orme was convicted of a violation of an ordinance of the city of Tuscumbia prohibiting one from retailing spirituous, vinous or malt liquors, and keeping open any part of his place of business on Sunday; and he appeals. Notwithstanding intent to commit crime may be omit ted in the statute, it is still an ingredient of the crime. —Gordon v. The Sate, 52 Ala. 309; Adler v. The State, 55 Ala. 23. The ordinance is unreasonable. — Black’s Const.

Heard before Hon. W. W. Haralson. Application by Edward King and others to establish a private road. After the commissioners’ court had acted, the matter was carried to the circuit court by certorari to review the action of the court in confirming the report of the viewers of the road. Motion was made to dismiss the appeal because it was barred, and because no bond for cost was given as required by law.

Heard before Hon. N. B. Goiibold, Special Judge. Action by the state, to the use of Wilcox county, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. This proceeding from beginning to end is purely and strictly statutory. It is essential in order to maintain an action that the defendant either own the property or that it was assessed to defendant.

Heard before Hon. W. L. Parks. Proceeding by J. It. Porterfield, as administrator, of Martha Calloway, deceased, for the sale of decedent’s real estate to pay debts, etc., in which Frank Johnson filed objections. From an order overruling such objections, Johnson appeals.

Heard before Hon. Thomas W. Coleman, Jr. Action by Laura Galliher against the State Mutual Life Insurance Go. on a policy upon the life of James Galliher. From a judgment for defendants, plaintiff appeals. This was an action on an insurance policy on the-life of James AY.

Heard before Hon. W. L. Parks. Suit by Stella I). Guice, for herself and as administratrix of Jason Gnice, deceased, and another, against Julian Guice and others, for partition of real estate. From a decree disposing of the proceeds on a sale of the real estate, complainant Stella I). Guice appeals.

Heard before Hon. J. C. 'Wood. Petition by Georgia A.- Davis against W. P. Mc-Gangh, guardian, to have part of the proceeds of a sale of land applied to the purchase of a homestead.. From a decree granting the relief, defendant appeals. The averments that decedent had no homestead exempt to him and had no lands out of which a homestead could be carved are jurisdictional. — Section 2070, Code 1896, as amended by General Acts 1903, p. 150.

Heard before Hon. Samuel B. Browne. Gilbert Livingston brought his suit agaiust William Moneagle & Go., and sureties on a garnishment bond for damages for breach of the conditions of said bond. There was judgment in favor of the plaintiff, and from a refusal of the court to grant defendant a new trial, based upon the specifications that the verdict is contrary to the law, and to the evidence in said cause, defendant appeals.

Heard before Hon. Chas. A. Senn. ' Assumpsit by the Alabama Mineral Land Co. against the Blocton-Cahaba Coal Co., for royalty on coal mined. From a judgment for defendant, plaintiff appeals. This was an action for royalty on 500,000 tons of coal, under a lease between the parties.

<p>Appeal fróm Pickens Circuit Court.</p> <p>Heard before S. H. Sprott.</p> <p>Action by Thomas S. Lipsey against the Carrollton Short Line Railway Company for damages to a horse, caused by going upon a dangerous cattle guard. From a judgment for plaintiff, defendant appeals.</p> <p>A declaration that an injury was caused by the insufficiency of a cattle guard is demurrable for failing to state the particulars in which it was insufficient. — 41 Cent. Die. t 1561; 1 Kapalje & Macks Dig. of Law, § 348. The"defendant violated no duty to plaintiff in constructing a stop gap that would be dangerous for live stock to go upon. — Bir. Min. R. R. Co. v. Parsons, 100 Ala. 662. As to the measure of damages see, Southern Ry. Co. r. Gilmer, et ah, 39 South. 265. A railroad fulfills its duty when it adopts such appliances as are used on prudently conducted roads. — Bivins Case, 103 Ala. 147; Prompt’s Case. 83 Ala.. 518; Wilson’s Case, 85 Ala. 272,</p> <p>The complaint is sufficient in its allegations. — A. G. S. R. R. Co. v. Croaker, 131 Ala. 585; Gleghorne v. Western Ry. of A labama, 134 Ala. 601; Eleyton Land Co. v. Mingea, 89 Ala. 521. The case of the Southern Ry. Go. v. Gilmer, is not applicable on the measure of damages in this case. The case of Montgomery St. Ry. Cffi. v. Hastings, 1.38 Ala. 432, is directly in point on that question.</p>

Heard before Hon. Citarles W. Ferguson, Action by Julia E. Taylor against the Singer Manufacturing Company and another'. From a judgment for plaintiff, defendants appead. Action for slander, begun by appellee against the Singer Manufacturing Company, a corporation, and Chas. Allen, jointly. There were numerous counts to the complaint, but the cause was tried upon counts 5, 6, 7, and 8.

Heard before Hon. H. A. Pearce. Proceeding under Code of 1896, § 4142, between Garrard & Son, plaintiffs in exeention, and N. F. Cochran, claimant, to determine whether certain property levied upon was that of claimant. From a judgment for plaintiffs in execution, claimant appeals.

<p> Bill to Cancel Deed as Cloud l'pon Title, and to Ascertain the Interest of Joint Owners and a Hale for Division. </p> <p>1. Dower; Nature of Interest. — Dower, before it is assigned, is in the nature of a right of action, and is not an interest or estate in land, and cannot be assigned except by way oí release to the heir or terre-tenant, which is really an extinguishment rather than a transfer.</p> <p>2. Partition; Parties. — The widow to whom dower has not been assigned, is not a necessary party to a bill filed by the children of the decedent to compel the respondent to surrender a deed executed to decedent for the laud, to declare tax deeds void, and to ascertain the interests of the joint owners and to sell for partition.</p> <p>3. Taxation; Tax Deeds; Validity.' — Because of an ineffectual attempt to convey other lands, a tax deed is not rendered invalid as to the lands it propery describes in a certain quarter section, as to the iutertest and title that the state has in them, if otherwise sufficient.</p> <p>4. Pleading; Demurrers; Grounds. — A general demurrer, is bad and will not be considered. Code 1890, Section 3303.</p> <p>5. Taxation; Tax Deeds; Suit to Annuli; Bill; Sufflcency. — A bill is not demurrable on the ground that it does not appear therefrom that a sale in parcels was practicable, where it avers that the land sought to be taken without the tax sale, together with other land, was offered for sale as a whole, and not in parcels, and that the same could have been sold in parcels.</p>

<p> Trover. </p> <p>1. Trover and Conversion; D&mamd; Jury Question. — Where there was evidence tending to show a non delivery to plaintiff and evidence tending to show that' the cotton might have been delivered to another than the defendant, it was .a question for the jury to say whether or not there had been a conversion of the cotton; and no demand was necessary.</p> <p>2. Bailment; Lien of Bailee as Defensive Matter; Wawer. — Where the evidence showed without dispute that if a demand was made there was an unqualified refusal to deliver, this was a waiver of any claim of lien or charges for bailment as defensive matter to the action.</p>

Clair Chancery Court. Heard before 1-Ion. W. W. Whiteside. Bill by S. J. Hair and others against W. S. Foreman and others to enjoin the issuance and sale of certain bonds and securities for road improvement, issued under the authority of an election and local act. From a judgment granting the injunction and declaring the act unconstitutional, this appeal is prosecuted.

Heard before Hon. Osceola Kyle. Action for personal injuries by F. B. Hunter against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. After the case was affirmed for want of proper assignment of error, motion was made1 by appellant to set aside the judgment of affirmance, to restore, the cause to docket and permit an assignment of errors, which motion was granted, for the reasons stated in the opinion.

Heard before Hon. A. 3). Sayre. Bill by Robert Nixon against tbe Clear Creek Lumber Company. From a decree for defendant, complainant appeals.

Heard before Hon. A. II. Benners. Action by A. H. Lockwood against the Birmingham Belt Railroad Company. A judgment was rendered in favor of plaintiff, and both parties appeal. Damages for the taking and injury to land belong to the owner at the time of the injury and do not pass to a subsequent vendee. — Evans v. 8. d TF. Ry. Go., 90 Ala. 54; Roberts v. The X. B. R. R. Go.., 158 II. S. 1; King v. 8outhern Ry., 119 Fed. 1017; 8. X. R. R. Go. v. .1. G. 8. Ry.

Heard before'Hon. John T. Lacklanjx Action by J. W. Kimbrough against Kate Grayson, in which Crissie Carleton appeared and became the real party defendant. From a judgment for plaintiff, Crissie Carleton appeals . Flea 1 was a complete answer to the complaint. — Jordan v. FAndsey, 132 Ala. 569; Peyton v. Bellinger, 87 Ala. 575. The second plea was a good defense and should have been allowed. —Behr v. Person , 95 Ala. 438; 72 Ala. 347.

AppbÁl from Gadsden City Court. Heard before Hon. John H. Disqtie. Action by E. T. Miller against John R. Hays and another. From a judgment for plaintiff, defendant Hays appeals. This was an action for damages resulting from the bite of a ferocious wolf.

Heard before Hon. W. H. Simpson. Bill by James Windes against W. E. Russell. From a decree for defendant, complainant appeals. The court erred in not holding that Culver was not a purchaser and that the equity of redemption was not cut off. — Raney McQueen, 121 Ala. 191.

Heard before 1-Ion. Alfred II. Benners. Bill by Perryman & Co. against George Huddleston, as guardian, and others. From a decree for defendants, petitioner Huddleston appeals Decree corrected and The chancellor has •power to make a reasonable compensation to the guarclian ad litem for his trouble and expense, to be taxed as other costs in the suit so as to insure if possible a faithful attention to the interests of the infant. — Walker, et al. v. Hallett, 1 Ala. 879.

Heard before Hon. D. W. Speai-ce. This was an action begun by the heirs of Karthaus, to recover damages for certain sand alleged to have been taken by the railroad from its right of way through and on plaintiff’s land, and sold in the market. The defendant insisted by way of defense that the sand was taken off of the hundred feet right of way owned by the road, and that the sand belonged to them and not to the plaintiff.

Heard before Hou. Ed. B. Almon. Action by John W. Key, administrator, against the Northern Alabama Railway Company. Judgment for plaintiff,.and defendant appeals. This was an action for damages for death of an employe. - The facts are sufficiently stated in the opinion.

Heard before Hon. Alfred H. Benners. Bill by Felicia Tedescki against Louis Berger and another to abate a nuisance, a bawdy house. From a decree sustaining the demurrers of Louis Berger, this appeal is prosecuted. The keeping of a bawdy house or house of prostitution is a common haw misdemeanor. — Ex parte Birchfield, 52 Ala. 277; 14 Oyc.. 485. It is a nuisance per se, as prejudicial to public morals. — Hundley v. Harrison, 128 Ala. 292; 16 A. & E. Ency.

Aepeal from Limestone Circuit onrt. Heard before Hon. L>. W. Speaks. Action by Lucile Westmoreland against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. This Aras an action for damages for failure or delay in the delivery of a telegram.

Heard before Hon. S. H. Sprott. Action by G. Kirsch against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. This is an action for an alleged wrongful assault by the defendant’s conductor or other servant while plaintiff was a passenger on one of defendant’s regular passenger trains in Fayette county.

Heard before Hon. D. W. Speake. Action begun by McCrary against Brawley & Yarbrough Bros, for damages for breach of warranty in the sale of a horse. The; case was tried by the court without a jury and judgment rendered for plaintiff.

Heard before Hon. W. IT. Thomas. The Montgomery Traction Company was convicted of doing business without the license required by subdivision 55, section 4122, Code 1.896, as amended by Acts 1900-01, p. 2616, and appeals. This cause was tried on the following agreed facts: That the defendant is a corporation under the laws of the state of Alabama. That the amount of the paid-up capital stock of the defendant corporation is $335,000.

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. D. A. Greene.</p>

<p>Appeal from Butler Circuit Court.</p> <p>Heard, before Hon. J. C. Richardson.</p>

<p>Appeal from Bessemer City Court.</p> <p>Heard before 1-Ion. William Jx\.okson.</p>

<p>Appeal from Tuscaloosa Chancery Court.</p> <p>Heard before Hon. A. I-I. Benners.</p>

<p>Appeal from Morgan Chancery Court.</p> <p>Heard before Hon. W. H. Simpson.</p>

<p>Appeal from Walker Law and Equity Court.</p> <p>Heard before Hon. T. L. Sowell.</p>