Volume 151 — Alabama Reports

Heard before Hon. W. H. Thomas. Ed Scrutchings Avas convicted of assault and assault and battery, under an indictment charging assault and assault and battery in one count and an assault and battery Avith a weapon in the other count, and he appeals.

Appeal, from Jefferson Criminal Oonrt. Heard before Hon. S. L. Weaver. Will Nelson was convicted of an assault with intent to murder and lie appeals. The marriage record was not sufficiently identified and authenticated to be admissible for any purpose. — 9 A. & E. Ency. of Law, pp. 880-884; 20 lb. pp. 513-14; Sandbord v. School District, 12 Mich. IT; Stewart v. Conner, 9 Ala. 803; Watts v. Clegg, 48 Ala. 561; 1 Greenleaf on Evidence (16th Ed.) § 485.

Heard before Hon. W. W. Haralson. Joe Beavers was convicted of assault and battery with a rock upon the person of one Anderson and be appeals. ■ The state was permitted to ask Fannie Corbet if she saAv the defendant that morning before the difficulty, and she Avas permitted to ansAver that she saAv him at Rorax Mill. Witness Anderson, who is also the person assaulted, was permitted to testily that he was old and infirm and had the rheumatism.

Heard before.Hon. A. H. Alston. Ellie McOqmbs Aras indicted for an assault Aritli intent to murder and convicted of assault Avith a weapon, and she appeals. ■ The defendant was indicted for assault with intent to murder Elizabeth Moore.

<p>Appeal from Tuscaloosa County Court.</p> <p>Heard before Hon. H. B. Foster.</p> <p>From a conviction and sentence for assault and battery with a weapon, Tee Freeman appeals.</p>

Heard before Hon. John T. Lackland. Tom King was convicted of an assault with intent to murder and appeals. Tbe indictment in this case was preferred on tbe 6th day of April, 1907.

<p> Mahem. </p> <p>1. Mayhem. — To constitute the offense of mayhem as provided by section 5095, Code 1896, the injury to the member must be such as to disfigure it to ordinary observation, distinguishable from a mere wound which simply mars the member.</p> <p>2. Same; Defenses; Self Defense.' — Providing the resistance is proportionate to the injury offered self defense is a justification for mayhem.</p> <p>3. Same; Instructions; Self Defense. — A charge asserting that if accused and the injured person were engaged in a mortal strife, and the person injured was armed with a deadly weapon and defendant was unarmed, and while so engaged defendant bit off a small portion of the injured person’s ear, accused must be acquitted, is faulty for failing to include all the elements of self defense.</p> <p>4. Same. — A charge asserting that if accused cut, bit, struck off or mutilated the ear of the person injured while fighting with him in self defense, and defendant was free from fault in bringing on the difficulty he must be found not guilty, is faulty for omitting certain elements of self defense.</p> <p>5. Same; Malice. — A charge asserting that before defendant can be convicted the jury must be satisfied beyond a reasonable doubt that the act was done unlawfully, intentionally and with malice aforethought, was faulty in the use of the phrase, malice aforethought, it not being necessarily synonymous with the word, maliciously, used in the statute.</p> <p>6. Evidence; Review; Harmless Error in Admission. — Where the answer was favorable to the objecting party it was harmless error to permit an illegal question.</p>

Heard before Hon. A. I-I. Alston. Hugh Trammell was convicted of murder in the 2nd degree and appeals. The grand jury finding the indictment was not properly organized and the indictment is void. — -Section 5023, Code 1896; Gross v. The State, 63 Ala. 40; Berry v. The State, 63 Ala. 127; Peters v. The State, 98 Ala. 38. This question may be raised for the first time on appeal. — Finlay v. The State, 61 Ala. 201; Hall v. The State, 134 Ala. 90.

Heard before Hon. W. H. Ti-iomas. Calvin Coleman was convicted of murder and appeals. The indictment in this case was in the following language: (1) “The grand jury,” etc., “that Colvin Coleman, alias,” etc., “unlawfully and with malice aforethought killed J. A. Finley by cutting him with a knife.

Heard before Hon. T. L. Sowell. Jim Howard was convicted of murder in the second degree, and appeals. Jim Howard was indicted and tried for the unlawful and malicious killing of Will Leonard by shooting him with a gun. What is said as to exceptions to evidence is sufficiently stated in the. opinion of the court.

Heard before Hon. O. J. Semmes. Antwine Heninburg tras convicted of murder in the 2nd degree and appeals. Antwine Heninburg was indicted and tried for the unlawful killing of Florence Heninburg by shooting her with a pistol.

Heard before Hon. D. A. Greene. Ed. Strickland was convicted of murder, and be appeals. The defendant was indicted for killing one Abernathy by shooting him with a pistol. The facts on which the case was tried, as developed by the state’s testimony, were that complaint was made to some of the officers that gambling Avas going on at a certain house, and they Avere asked to put a stop to it.

Heard before Hon. Thomas L. Sowell. Rich Bluett, alias, etc., was convicted of manslaughter in the first degree, and he appeals. The defendant was indicted for unlawfully and with malice aforethought killing Scott Davenport, by shooting him with a gun or pistol.

Clair Circuit Court. Heard before Hon. John Pelham. ■ Frank Barber ivas convicted of murder in tlie first degree, and he appeals. The defendant was charged with the murder of a peddler named Madnick, and convicted and sentenced to life imprisonment.

Heard before Hon. Dan A. Greene. Jim Kirby was convicted of manslaughter in the first degree, and he appeals.

Heard before Hon. W. H. Thomas. Fred Fallmer was convicted of murder and lie appeals. The court erred in not sustaining tlie demurrer to the indictment. — Morvingstar r>. The State, 52 Ala. 405; Page v. The State, 61 Ala. 18; hhxuis v. The State, 62 Ala. 6; Oanoforcl v. The State, 112 Ala. 23. The court erred in not sustaining the objection to the question asked Sallie Williams. — Thomas v. The State, 107 Ala. 17.

Heard before Hon. J. C. Kitmpe. Bud Sylces appeals from a conviction of selling whisky without a license and contrary to law. The defendant ivas charged with selling whisky without license and contrary to law, was found guilty, and fined $50, and an additional term was added by the court of three months. The remarks of the solicitor are sufficiently stated in the opinion of the court. The evidence tended to support the charge in the indictment.

<p> Retailing Liquor Without License. </p> <p>Intoxicating Liquors; Unlawful Sale; Indictment; Mvidence. — Under au indictment in code form for retailing liquor without license proof may be offered and a conviction had for a sale made in violation of a local law. Section 5077, Code 1896.</p>

Heard before Hon. W. W. Haralson. Luke Cagle appeals from a conviction for selling liquor without license and contrary to law. The court erred in allowing the solicitor to challenge the juror Jackaway after he had been accepted by both the state and defendant. — Sparhes v. The State, 59 Ala. 82; Spigner i.\ The State, 62 Ala. 283; Smith v. The State, 55 Ala. 1.

Heard before Hon. William Jackson. Jack Lambie was convicted of illegal sale of intoxicating liquors, and he appeals.

<p> Retailing Liquor Without License. </p> <p>1. Pleading; Demurrer; Oral Demurrer. — Oral demurrers are not . permissible under the rules of pleading, and a court will not be put in error for refusing to consider them.</p> <p>2. Sume; Variance Between Affidavit and Warrant. — The affidavit is the pleading on which the charge is based and upon which the trial should be had, and a defendant cannot object to going to trial because of a variance between the affidavit and the warrant.</p> <p>3. Criminal Law; Instructions; Affirmative Charge. — Where the evidence affords an inference to support the charge the defendant is not entitled to have the verdict directed.</p>

<p> Helling Liquor Without License. </p> <p>1. Intoxicating Liquors; Indictment; Sufficiency. — An indictment for selling liquor without license which alleges in the first count that defendant did sell spirituous, vinous or malt liquors without a license and contrary to law, within Hale county, Alabama, and in the second count that such defendant in such county did sell, give away to, or procure for a certain person, or did aid such person in procuring such person intoxicating liqour, is sufficient.</p> <p>2. Criminal Law; Instructions; Reasonable Doubt. — A charge requiring a conviction of defendant if the jury believe from all the evidence in the case beyond a reasonable that defendant etc., is faulty for omitting the word, doubt, after the word reasonable.</p>

Heard before. Hon. M. M. Baldwin, Special Judge. Albert Booker was convicted of receiving stolen goods, and. he appeals. —The verdict of the jury finding the defendant guilty’ under the circumstances operated as an acquittal fi's to the 1st count.’ — Berry v. The State/65 Ala.'T20; Foster v.'The State, 88 Ala. 185. ’ The’offense is not complete if accused fails to acquire dominion over the property so as to give him actual possession dr control. — Spivey v. The State, 26…

Heard before Hon. William Jackson. From a conviction for larceny Hamilton Coburn appeals.

<p>Appeal from Mobile City Court.</p> <p>Heard before Hon. O. J. Semmes.</p> <p>John Yandegrift was convicted of grand larceny, and appeals.</p> <p>Tlie appellant Avas indicted, jointly with another, for tlie felonious taking of a Avatcb of the value of $150, the property of John Betro. The evidence for the state tended to sIioav that the witness thought the least present value of the watch was $50, although he did not knoAV the market value of the Avatch. Another witness said that, without knowing the market value of the watch, in. her opinion it was worth $150. This is practically all the evidence in regard to the value. At the conclusion of the testimony the defendant requested the following charge which was refused: “The question for the jury to determine in this case is, does the evidence show beyond all reasonable doubt that the defendant is guilty of the larceny of the watch as charged in the indictment? and the jury are not authorized to convict him for any action on the defendant’s part done or committed in regard to the watch subsequent to its being stolen.” He was'convicted óf thé'offense of grand larceny and sentenced to the penitentiary for 18 months. The defendant, testifying for himself, stated that he was asked to assist in looking for the watch, and that he agreed to do so, and found the watch over the storeroom among some old jugs and things that were setting around. “The watch was lying under a loose piece of tin; which I happened to kick-with my foot as I went in the door. There were' some old jugs in there big enough to hide a watch under. The reason T did not deny taking the watch when Johnson accused me of it before Lacey was because I did not think it was- any time to make a statement. I did not have a lawyer, and did not know what to do about it.” '</p> <p>The statute prescribing the offense of gránd larceny in so far as the value is concerned has reference to the market value of the property stolen. — State v. DoeJce, 30 Am. Rep. 735; Cannon v. The State, 18 Tes. 172; Martines v. The State, 16 Tex. App. 122; People v. Cole, 54 Mich. 238; 2 Bishop’s Crim. Proc.'§ 751; Code 1896, § 5049. A witness who hás no knowledge of the value of stolen prop, erty is not competent to testify to its value although he may know what he paid for it. — Gen. of Ga. v. Main, 135 Ala. 441; Chicago R. R. Go. v. Douglass, 76 S. W. 449; Seattle R. R. Go. p, Gilchrist, 30 Pas. 739; 12 A. & E. Ency. of Law, 479; Wharton’s Crim. Evi. § 416. The value of the property at the time of the larceny is the distinguishing test. — People .v, Gole, supra; State v. Brown, 55 Kan. 611.</p>

Heard before Hon. W. H. Thomas. Robert Williams Avas con Aided of bigamy, and appeals. As to the legality of the first marriage, it is always tested by the latvs of the state where such marriage Avas contracted. — 4 A. & E. Ency. of Law, p. 38. The offense is not committed by either party to the second marriage if the first marriage has been declared Amid or is Amid, or AArhere a decree of divorce has been granted. — 4 A. & E. Ency. of Law, pp. 36-37.

Heard before Hon. H. A. Pearce. Babe Brogden was convicted of playing at a game of cards or dice in a storehouse or room for selling or retailing liquors, and he appeals.

Heard before Hon. Williiam Jackson. Joe Morrison ivas convicted of trespass after warning, and appeals. Tlie defendant was convicted of trespass. The facts are sufficiently stated in the opinion.

Heard before Hon. William Jackson. From a conviction for trespass after warning, E. G. Morrison appeals. Tbe facts are sufficient stated in the opinion. —The motion of defendant to quash the complaint was properly overruled and the amendment properly allowed. — Wright v. The State, 136 Ala. 139; Holland v. The State, 139 Ala. 120.

Heard before Hon. A. H. Owens. Malaclii Mobley was contacted for using abusive, etc., language at or near a dwelling house, and he appeals. Prosecution for using abusive or insulting language at or near a dwelling house.

Heard before Hon. William Jackson. From a conviction for bastardy, James Allred appeals. The defendant was indicted and tried for bastardy, convicted, and appeals. The affidavit and objections thereto, and the objections to testimony assigned as error, are sufficiently and fully 'stated iu the opinion.

Heard before Hon. W. H. Thomas. Eugene Dowling was convicted of rape, and appeals. The court erred in admitting evidence- of a- complaint made some years previous to tlie indictment. — Lacy v. The State, 45 Ala. 81; Griffin v. The State, 76 Ala. 29; Barnes v. The State, 88 Ala. 208. The court erred in the admission of the other evidence objected to. — Sanders v. The State, 41 South. 467; Dickey v. The State, 38 So. Rep. 777; Posey v. The State, 38 So.

Heard before Hon. Alfred H. Benners. Bill by W. S. Smith against James A. Collins to ,can: cel lease of coal lands. From a decree overruling the motion to dismiss the bill the respondent appeals. Where the lease does not name a period in which the mining is to be begun, the law annexes the agreement to begin within a reasonable time. — Taylor’s Landlord & Tenant, p. 120.

Heard before Hon. Alfred H.' Benners. Bill by William H. Woodward against Juliet C. Due to settle and determine title to land. From a decree for complainant, respondent appeals. Estates in fee simple .and estates in fee tail have well defined meanings. — Smith r. Greer, 8S Ala. 416. The word, “heirs” and “heirs of the body” have distinct legal and technical meaning. — 21 Cyc. pp. 413-415.

Heard before Hon. Thomas H. Smith. Action by Bessie L. Peacock and others against Laura C. Beathea and others. From an order sustaining a demurrer to the hill of complaint, plaintiffs appeal. This was a hill filed by Bessie L. Peacock and others against Laura C. Bethea and others, seeking to have a deed corrected, and- that; certain lands therein described be excluded from the operation of said deed.

Heard before Hon. Alfred H. Benners. Bill by L. D. Hightower against L. D. Coalson to set aside a judgment on an alleged usurious note, to declare same invalid, and for an accounting, with an offer to do equity. From an order sustaining a demurrer to the bill, plaintiff appeals.

Heard before Hon. W. L. Parks. Bill by M. C. Stokes against J. W. Dimmick and others. Prom a judgment in favor of plaintiff, defendants appeal. This is a bill exhibited by Matthew C. Stokes against Albert P. Wilson, J. W. Dimmick, and J. P. Dimmick, seeking an injunction to restrain Albert P. Wilson from acting as president of the Alabama Central Railroad, or as director, or in any way interfering with the corporation or its affairs.

Appeal, from Birmingham City Court. Heard before Hon. Chas. A. Senn. Bill by Elizabeth Maddox and another against Martha Wood, to redeem land from mortgage foreclosure sale. From a decree dismissing the bill, complainants appeal.

Heard before Hon. Ti-iomas H. Smith. Bill of Joseph. Packard against the city of Mobile. Decree for defendant, and plaintiff excepts. This is a bill by Packard against the city of Mobile and Inge, as trustee for the holders of wharf bonds, alleging that he was a holder of a certain bond which matured on January 1, 1906, and which remains unpaid by the said city.

Heard before Hon. \V. I-I. Simpson. Bill by J. IV. Bean against J. P. Pearce to redeem lands from a sale under power in a mortgage. From a decree dismissing the bill for want of equity, the complainant appeals.

Heard before Hon. W. W. Whiteside. Bill by Eva J. Fitzwater, and others to declare a deed absolute on its face a mortgage, and for an accounting, against W. H. Winn, as administrator, and others. From a decree for complainants appeal. A power to make a deed does not confer authority to make a mortgage. — Butler v. Gasman, 81 Ala. 491. One cannot maintain a bill to cancel a deed and to redeem under it.— Micou v. Ashurst, 55 Ala. 607.

Heard before Hon. W. H. Simpson. Bill by D. L. Baker against Fred Rosebrook to quiet title.

Heard before Hon. Alfred H. Benners. Bill by Mabel Moran and others against the Birmingham Railway, Light & Power Company, to enjoin the closing and obstruction of an alley way in the rear of their property, and to open the same.

Heard before Hon. John H. Disque. Bill by the Insurance Company of North America against AY. J. Cleveland and others. From a decree overruling demurrers to the bill and a motion to dismiss, defendants appeal. AA. J. Cleveland had a policy of insurance on his stock of goods and store, and during the life of said policy his store and contents burned.

Heard before Hon. Thomas H. Smith. Bill by J. W. Blakeney, guardian, against his ward for a removal of the guardianship from the probate to the chancery court and for a settlement of the guardianship, with prayer for re-imbursement, out of the principal of the ward’s estate, for advancements made by the guardian to the ward, which advancements are alleged to be necessary and to the best interests of the wards. Prom a decree for complainants, respondents appeal.

Heard before Hon. Alfred H. Benners. Bill I>y John B. Boddie against William C. Ward and another. From a decree dismissing the bill for want of equity, complainant appeals. This is a bill filed by John B. Boddie against William (\ Ward and William H. Woodward.

Heard before Hon. Alfred H. Benners. Bill by Joseph D. Abel against James A. Collins to cancel and annul a lease on coal lands. The facts are sufficiently stated in the opinion of the court. From a decree for complainant respondent appeals. Where the lease does not name a period in which the mining is to be begun, the law annexes the agreement to begin Avithin a reasonable time. — Taylor’s Landlord & Tenant, p. 120.

Heard before Hon. W. W. Wi-iiteside. Bill by W. M. Blankenship against Mattie Iiodnett to specifically enforce a contract for the sale of land alleged to have been executed by respondent’s ancestor. From a decree for respondent complainant appeals. The chancellor erred in not dismissing the bill for want of equity. A tender must be absolute and without condition. — Oclomv. Rutledge, 94 Ala. 496; Commercial F. Ins. Co. v. Allen, 80 Ala,. 571; 28 A. & E. Ency. of Law, p. 31.

Heard before Hon. A. D. Sayre. Suit by Henry B. Gray and others against the South & North Eailroad Company and others. From a decree denying- an application to dismiss the bill for want of equity, defendants appeal; and from an order denying an application to appoint a receiver, complainants appeal.

Heard before Hou. Thomas H. Smith. Bill by Lewis Brown and others by next friend against James S. Robbins and others to redeem from foreclosure sale. From a decree for complainant respondents appeal. Courts cannot make contracts for parties but can only construe those that have been made. — Mobile B. & L. Osso. v. Roberts, 65 Ala. 386. To be good a tender must be unconditional. — Commercial F. I. Co. v. Allen, 80 Ala. 579.

Heard before Hon. William H. Simpson. Petition by W. H. Sweeney and others to have a judgment over annulled and vacated for want of jurisdiction of the person. From an order denying the petition petitioner appeals.

Heard before Hon. Alfred H. Benners. From a decree granting to James U. Hardman and others an order for a sale for partition, Pugh, as guardian of one of the respondents, appeals. Counsel discusses assignments of error but does not discuss the point decided. Counsel discusses the points raised by assignment of errors but does not discuss the point decided.

Heard before Hon. Samuel B. Browne. Action by John E. Stillman against Herman W. Wefel, Jr. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Charles W. Ferguson. Action by the Ely & Walker Dry Goods Company against the Ashby Brick Company and others. From a judgment for plaintiff, defendants appeal. The discontinuance as to defendant Oakley amounted to a discontinuance of the entire cause of action and the court should have so ordered.- — Backus v. Mickle, 45 Ala. 445; Kendal. v. Lasseter, 68 Ala. 181; Jones v. Inglchart, 78 Ala. 505.

Heard before Hon. John H. Disque. Action by Thomas L. Johnson, prosecuted after his death by M. B. Johnson, as executor, against Spoon Motlow. From a judgment for plaintiff, defendant appeals. This character of action does not survive. — Sections 35 and 38, Code 1896; 6 Words and Phrases, page 5336; Osborn v. Fall River, 140 Mass. 509. If this be true, the action cannot be maintained. — Willis v. Burns, 106 Ala. 425.

Heard before Hon. I). W. Speake. Action by Fennell McDonnell and others against Llewellyn Jordan to recover costs paid. From a judgment for plaintiffs, defendant appeals.

Heard before Hon. S. L. Brewer. Action by Dock Boe against W. N. White. From a judgment for plaintiff, defendant appeals. The amount in controversy being less than twenty dollars, the case ivas properly heard by the court without a jury. — Section 490, Code 1896. The facts having been agreed on, it is the duty of this court to either affirm the judgment of the lower court or to reverse and render such judgment as the lower court ought to have rendered. — First Natl. Bank it.

Heard before Hon. S. L. B reaver. Action by the Jesse French Piano & Organ Company against R. H. Martin. From a judgment for plaintiff, defendant appeals. This Avas an action on a promissory note, reciting payment of $10 cash and calling for additional payments of $10 per month for each month until 21 1-2 payments had been made, and conditioned that, if any payment Avas not made, the AAdiole sum became due and payable.

Heard before Hon. William S. Anderson. Assumpsit by Murdock Mclnnis, surviving partner,, against Fred A. Dantzler and others. From a judgment for plaintiff, defendants appeal. A party has a right to select with whom he will contract, and cannot have another person thrust upon him without his consent. — Sullivan v. L. The fact set up in the demurrer to the 5th count should have been availed of by plea.' — Grummet v. Henderson, 66 Ala. 521.

Court. Heard before Hon. Charles W. Ferguson. Action by Addie Solomon against the American Guild. Plaintiff appeals from the judgment. This was an action by Addie Solomon against the American Guild to recover the sum of $5,000 alleged to be due on a policy of insurance whereby the defendant insured th'e life of Simon Solomon for the term of his membership in said American Guild; it being alleged that the said Simon Solomon was a member at the time of his death.

<p> Assumpsit. </p> <p>1. Accord and Satisfaction; Payment; Check. — Although the check stated that it was in full of account the collection by it of the payee was not a satisfaction of the account where the account was more than the amount of the check, and the payee notified the drawer that it would not be accepted in full of account.</p> <p>2. Appeal; Record; Evidence; Instruction. — Where the bill of exceptions did not set out the evidence in full but only its tendencies, this court cannot say on appeal that the facts hypothesized in written instructions requested were not stated in the evidence.</p> <p>3. Sales; Construction of Contract; Duration; Termination.— Where good were purchased under an agreement that if any of them could not be used in the business they could be returned and credit given therefor, and these goods were paid for and the account of purchase settled, the party receiving them could not afterwards return any part of tliem and demand a credit upon another bill.</p> <p>4. Same; Rescission; Right of Buyer; Defect in Goods. — Where goods are purchased under an agreement that they should, be opened and if found not to come up with the bill or not satisfactory or salable, the buyer could return them and get credit therefor, it became his duty on receiving the goods to examine them, and if they fell within either of the excepted classes, to return them without unreasonable delay, and he could not expose them for sale for months and then return them.</p>

<p> Assumpsit. </p> <p>1. Appeal; Record; Bill of Exceptions; Extension of Time; Agreements. — There were several agreements extending the time for signing the bill of exceptions signed by the attorneys for both parties, and on thse agreements was ndorsed, “filed in office this day” mentioning the date and followed by the signature of the clerk of the court; these agreements were copied in the rcord with the bill of exceptions followed by the certificate of the clerk that the foregoing pages of the record contained a complete transcript of the case, etc. Held, that the agreements were sufficiently authenticated.</p> <p>2. Exceptions, Bills of; Time of Signing; Statute. — The act creating the Coffee County Court, (Acts 1903, p. 404), provides for monthly term of said court but makes no provision for the signing of bills of exceptions, relegating that matter to the general law of circuit court. Held, that under rule 30, Circuit Court Practice, a bill of exceptions could not be signed during or after the next succeeding term of court notwithstanding the parties entered into stipulations extending the time.</p>

Heard before Hon. H. A. Pearce. Assumpsit by T. J. Scott & Son against Rawls & Rawls and others. From a judgment setting aside the verdict for defendant and granting plaintiffs a new trial, defendants appeal. The court improperly granted a new trial. — Cobb r. Mu-lone, 92 Ala. 630; Holland v. Howard., 105 Ala. 588; Perry r. King, 117 Ala. 537'. The proof as to' the consideration of the note was properly admitted. —Pam say r. Young, 69 Ala. 157.

Clair Circuit Court. Heard before Hon. John Pelham. Attachment by H. B. Guy against L. B. Trammell, a non-resident defendant, with notice by publication. From a judgment by default which fails to recite the fact that notice by publication was given, the .defendant appeals.

<p>Appeal from Cherokee Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Assumpsit by the McCormack Harvesting Machine Company against H. W. Lowe. There was judgment for plaintiff which on motion was set aside and a new trial granted to defendant, from which judgment plaintiff appeals.</p> <p>The evidence ivas manifestly in favor of the verdict and the judgment of the court granting a new trial should he reversed. — White v. Blair, 95 Ala. 147; Dillard v. Savage, 98 Ala. 598; Lee v. DeBardelaben, 102 Ala. 628. The affidavit as to surprise is not sufficient to overcome the evidence in the case.— Wells v. Gallagher, 39 South. 747. The agreement of Wyatt to deliver the machine at Leesburg is not binding on plaintiff. — Lazarus v. Sherrer, 2 Ala. 718; Crawford v. Barclay, 18 Ala. 270; Johnson v. Alabama Glass Co., 90 Ala. 505.</p> <p>Wyatt was the general agent with general authority and principal was bound by his acts. — Gibson v. Snotv Hdw. Co., 94 Ala. 346; Rhodes Furn. Co. v. Weedon & Dent, 108 Ala. 252. At least the question should have been submitted to the jury. — 4 Mayf. 529; 47 Am. Rep. 516. It cannot be contended that defendant should have known that the agent did not have authority to deliver at Lees-burg, when it was admitted by plaintiff that he had authority to deliver at Cedar Bluff. — Wheeler v. McGuire, 6 Ala. 398; Weeden v. Clark, 94 Ala. 505. The scope and character of the business which he is employed to transact is as to third persons the extent and measure of his authority. — Wheeler v. McGuire, supra; Montgomery Furn. Co. v. Hardaway, 104 Ala. 100; Louisville Coffin Co. v. Stokes, 78 Ala. 372. The court erred in giving the affirmative charge for plaintiff. — Warren v. Fields, 131 Ala. 304. That being true he properly granted a new trial. — Dillard v. Savage, 98' Ala. 598.</p>

Heard before Hon. A. H. Alston. Assumsit by Jones as administrator, etc., against C. It. Adkins and others. From a judgment for plaintiff defendants appeal. The introduction of plaintiff’s letters of administration without objection ivas conclusive of his right to maintain this suit. — Section 77, Code 1896 ¡Sands v. Hickey, 135 Ala. 322; Johnson v. Kcyscr, 127 Ala. 309; Morgan v. Casey, 73 Ala. 222; Tarver v. Boykin, 6 Ala. 358; 91 U. S. 238.

Heard before Hon. D. W. Speaks. Action by Patty Westmoreland to recover damages against the Western Union Telegraph Company for failure to deliver promptly the telegram sent by her to her brother reading, “meet me to-night.” From a judgment for plaintiff, defendant appeals. The action is in tort. — TF. Ü. Tel. Go. v. Krisbaum, 132 Ala. 539.

Heard before Hon. Charles A. Sexn. Action by Mary Moore, by her next friend, Jane Griffin, against the Birmingham Railway, Light & Power Company. From a judgment in favor of plaintiff, defendant appeals. Action for damages.

Heard before Hon. D. W. Speake. Action by William T. Seaman against Robert M. Lipscomb for damages for the wrongful killing of a dog. From a judgment for plaintiff defendant appeals. The court erred in overruling the demurrers to the complaint. — City Delivery Co. v. Henry, 139 Ala. 161. The evidence does not support the action. — Shepherd v. Dowling, 103 Ala. 566; Railroad Co. v. Clay, 108 Ala. 236; Teague, et al. v. Bass, 31 South. 4; Southern By.

Heard before Hon. G. K. Miller. Action.by John M. Hobbs against the Southern Railway Company. Judgment for plaintiff. Defendant appeals. Action for damages growing out of injury received by plaintiff and his property by being struck by the train at or near- a railroad crossing.

Heard before Hon. A. A. Evans. Action by J. R. Hyatt, administrator, against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals.

Heard, before Hon. John T. Lackland. Suit by George B. Fields, administrator, against the Nevers Lumber Company and others. Judgment for plaintiff,, and defendants appeal.

Heard before Hon. W. W. Haralson. Action by W. L. Moody against the Southern Ry. Co. for the loss of certain egg cases delivered to the carrier for transportation. The evidence is sufficiently stated in the opinion of the court. Prom a judgment for the full amount of the property the defendant appeals.

<p>Appeal from DeKalb Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Action by Thomas Franklin against the Alabama Great Southern Railroad Company for damages for killing a mule. From a judgment for plaintiff defendant appeals.</p> <p>Goodhue & Blackwood, for appellant. — It is only when; the killing is shown to have occurred at or near the places mentioned in the statute that the burden of proof is cast upon the defendant to acquit itself of negli genee. — 'Sections 3440-3443, Code 1890; Bir. Min. R. R. Go. v. Harris, 98 Ala. 326; A. G. S. R. R. Go. v. Boyd, 124 Ala. 536. Therefore, under the evidence in this case the defendant is entitled to the affirmative charge and the court erred in refusing it.</p>

Heard before Hon. D. W. Speaks. Action by Agnes Hundley against the Southern Railway Company. Judgment for plaintiff. Defendant appeals.

Heard before Hon. A. A. Evans. Action by Amos Tliweatt against the Central of Georgia Railway for damages for killing a mule. From a judgment for plaintiff, defendant appeals. The oral charge of the court was erroneous as there was no evidence in the case that the engineer in charge of the train did any guessing. Charge 2 should have been given for appellant. — Central of Ga. Ry. Co. v. Starke, 126 Ala. 365. On this same authority and on the authority of the Central of Ga.

Heard before Hon. John Pelham. Action by W. It. Ivey, administrator, against the city of Anniston. From a judgment for plaintiff, defendant appeals. W. It. Ivey, as administrator, sued the city of Anniston to recover damages for the death of his intestate. There were five counts in the complaint. The gravamen 'of the first count is that the depression or ditch in the street had been negligently left there for a sufficient length of time for the defendant to have known it.

Heard before Hon. Charles A. Senn. Action by Greenberry Vines against the Alabama Consolidated Coal & Iron Company and others. The actions were consolidated and tried together. From a judgment for plaintiff, defendants appeal.

Heard before Hon. S. L. Brewer. Action by Fred Barnett against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. This was an action for damages alleged to have been caused by a collision between a wagon and mules of plaintiff and a train of cars operated over defendant’s line of railway. The facts tended to show that the plaintiff was driving along the road which crosses the track of appellant near Parkdale, in Coosa county.

Heard before Hon. S. L. Brewer. Action by Beulah Garthright against the Western Union Telegraph Company. From a judgment for plaintiff', defendant appeals. This is an action for failure to deliver a telegram alleged to have been contracted to be delivered by defendant for payment through her agent, T. A. Shannon. The necessary allegation as to the business of the defendant was made. The telegram was as follows; “To J. A. Norton, care E. H. Norton, Alapaha, Ga. Come at once.

Heard before Hon. William Jackson. Action by Claude Burgin, by Ms next friend, against J. J. Sullivan and others. From a judgment for defendants, plaintiff appeals. Held: and because the facts set out in each one of the special pleas are available under the general issue.

Heard before Hon. C. W. Action bv Oliver S. Cargo against A. A. Gambill. Judgment for plaintiff, and defendant appeals. On rehearing. This was an action brought by appellee against appellant for false imprisonment and malicious prosecution. The first, third, and fifth counts were for false imprisonment, and the second, fourth, and sixth for malicious prosecution.

Circuit Court. Heard before Hon. H. A. Pearce. Action by N. L. Sellers & Co. - against tbe MalonePilcber Co., in trespass, trover and case. From a judgment for defendant plaintiff appeals. Tbe duty to make a tender may be waived. — 21 Ala. 782; 99 Ala. 90. Plaintiff bad tbe riglit to tender tbe money and then sue.— Frank, v. Pickens, 69 Ala. 369. Counsel discuss a motion to strike the bill of exceptions and cite authorities.

Heard before Hon. A. H. Alston. Action by Robert Duncan against the Clear Creek Lumber Company for damages to lands and crops by the cattle of the defendant. From a judgment for plaintiff defendant appeals. The complaint does not state a substantial cause of action and will not support the judgment. — 131 Ala. 220; 113 Ala. 402. It is the right of every owner to permit his cattle and stock to run at large. — M. & (7.

Heard before Hon. S. H. Sprott. Action by William D. Dunn and others against the C. W. Zimmerman Manufacturing Company. From a judgment for plaintiffs, defendant appeals. This was an action begun by appellees and one Daffin against the appellants. The first count is in trover for the conversion of certain timber, alleged to have been cut and hauled off of a certain 80 acres of land belonging to plaintiff.

Heard before Hon. John H. Bisque. Action by John S. Jones against L. W. M. Dismukes. Judgment for plaintiff, and defendant appeals. This was a suit begun by appellee against appellant to recover damages for permitting stock to run at large upon land in the district in which stock is not permitted to run at large.

Heard before Hon. Samuel B. Browne. Action by Archer W. Slaughter and another against Paris Benjamin. From a judgment for plaintiffs, defendant appeals. This was an action of trespass begun by Archer W. and Dupree Slaughter agaisst Paris Benjamin as defendant, and sought to recover $400 damages for cutting and carrying away 55 cottomvood trees, 40 cottonwood saplings, and 1 oak tree from certain lands described in the complaint.

Heard before Hon. A. H. Alston. Suit by Tom Gossom against the Clear Creek Lumber Company for damages for depredation of stock upon his growing crop. There ivas judgment for plaintiff, and defendant appeals.

Heard before Hon. H. A. Pearce. Action by Nancy Urquhart against the Gulf Yellow Pine Company. The first count is trover for conversion of 146 pine trees, the second count for damages to certain land by cutting certain trees, and count 3 is also for entry and cutting. Demurrers were interposed, setting up a misjoinder; but these demurrers were overruled.

Heard before Hon. Henry E. Reese, Special Judge. Action by A. F. Carpenter against J. C. Joiner. From a judgment for defendant, plaintiff appeals.

Heard before Hon. A. H. Alston. Trover by W. T. Lynch against Mike McGowan for the conversion of a mare. From a judgment for plaintiff, defendant appeals. The verdict was not such as would justify the judgment that was rendered. — Tisclale v. A. & JS. Lbr. Go., 131 Ala. 456; Moody v. Keener} 1 Port. 218.

Heard before Hon. Thomas W. Coleman, Jr. Harry Wright was convicted in the recorder’s court of the city of Anniston for the offense of assault with a shotgun. He appealed to the city court of Anniston from this conviction and being convicted there he takes-this appeal.

Heard before Hon. Daniel A. Greene. George Miller was convicted of peddling milk and butter without a license in violation of a city ordinance, and he appeals. Paragraph 261 of the city ordinance of the city of Birmingham is not authorized by the charter of the city nor by any general law, and is also violative of articles 11 and 12 of the Constitution of 1901. This ordinance is a revenue tax. — Dillon’s Munic. Corp. 768; 36 Am. Bep. 518.

Heard before Hon. Dan A. Greene. E. Goldstein was charged with violating an ordinance of the city of Birmingham requiring dairymen to pay a license tax of fifty cents for each cow used in production of milk and butter sold in the city. Demurrers were sustained to the complaint and the city appeals. Under its charter powers the city had authority to pass the ordinance in question. — Local Acts 1898-9, p. 1391.

Heard before Hon. William Jackson. Cicero Miles was tried for violating a city ordinance of the town of Brighton for selling .spirituous, vinous or malt liquors and contrary to law. From a judgment of acquittal, the town appeals. The character of the action is sufficiently stated in the opinion. George Oliver testified that lie was frequently at the place of business of Miles in the town of Brighton, and had bought hop ale from him at his place of business.

Heard before Hon. A. H. Alston. Ejectment by Henry M. Mahan against Bose Smith. From a judgment for defendant, plaintiff appeals. Plaintiff having shown a regular chain of title back to Joseph Smith, a party in possession, was entitled to recover. — SchalVs (Jasé, 107 Ala. 531. No privity being-shown between plaintiff and appellee, the allged adverse holding- of Smith can avail appellee nothing.— 'Wither so a v. Lehman-Durr Go., 136 Ala. 468.

Heard before Hon. H. A. Pearce. Ejectment by D. G. Farmer against C. E. Sellers. From a judgment for plaintiff, defendant appeals. A discontinuance was worked and the court improperly denied the motion to strike the cause from the docket.

Clair Circuit Court. Heard before Hon. John Pelham. Ejectment by Eliza Sheffield and others against R. B. Franklin. From a judgment for plaintiff, defendants appeal. The use of the word “child” in section 367, Code 1896, and 2367, Code 1886, has reference to age and not to relationship. — 1 A. & E. Ency. of Law, p. 204-5; In re Moore, 14 R. I. 38; McGregor v. The State. 4 Tex. App. 599; Allen v. The State, 7 Tex. App. 298; 29 Am. St. Rep. 210, 38 South. 140.

Heard before Hon. Samuel B. Browne. Action of detinue by McDonald Bros, against T. J. Hickey. Prom a judgment for plaintiff, defendant appeals. The facts upon svliicb this case was tried are substantially as follows: A man representing himself to be J. W. Pressner went to the sales stables of Ramsey in Mobile and endeavored to purchase a mule on credit, representing that he was J. W. Pressner in the lumber business at Creóla, Ala.

Heard before Hon. W. W. Haralson. Action of detinue by M. P. Couch against H. Holmes, for a mare. From a judgment for defendant, plaintiff appeals. Action of detinue by Couch against Holmes for the recovery of a sorrel mare. The plaintiff’s testimony tended to show that D. P. Mitchell procured a loan of him for $300 and secured it by mortgage on the mare in question. The mortgage, ivas signed by I). P. Mitchell, M. A. Mitchell, his wife, and J. M. Mitchell, his son.

Heard before Hon. W. W. Haralson. Detinue by A. B. Hooper against B. F. Pierce for the recovery of three bales of cotton, for which plaintiff executed Ms forthcoming bond and on which the property was delivered to plaintiff. From a judgment for defendant, plaintiff appeals. Counsel discuss Wo assignments of error relative to the admission of evidence and cite authorities to support their contention.

Heard before Hon. Clayton Foscue. Proceedings by E. H. Hunt, as administratrix of tbe estate of James L. England for tbe sale of land for tbe payment of debts, to which A. B. Curtis and others filed objections. From a decree dismissing tbe petition, the petitioner appeals. Petition to sell lands to pay debts, filed by, tbe administratrix. Tbe heirs contest. . Tbe exceptions to tbe introduction of evidence sufficiently appear in the opinion.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. C. C. Nesmith.</p> <p>C. W. Henry sued out a certiorari to the board of revenue of Jefferson county returnable to the city court of Birmingham, requiring said board to send up to the city court a record of its proceedings in reference to an order for an election to be held in a certain precinct to determine whether or not stock should be prohibited from running at large in said district. From an order dismissing the petition and quashing the writ petitioner appeals.</p> <p>-The board of revenue is of limited jurisdiction and its records must affirmatively show the existence of facts on which its authority rests. — Blount County v. Johnson, 39 South. 910; Mayfield v. Tuscaloosa County, 41 South. 932; Talley v. Crider, 66 Ala. 119; Comm, of Lowndes County v. Herne, 59 Ala. 371. In public statutes, words only directory, promissory, or enabling may have a compulsory force where the thing to be done is for the public benefit. — Tarver v. Tallapoosa County, 17 Ala. 531; Eos parte Bimonton, 9 Port. 390; 20 A. & E. Ency. of Law, p. 239-240; 2 Sutherland Statutory Construction, pp. 1145-1156. In proceedings to hold a valid stock lav-election three things are necessary: 1. The'filing of a sufficient petition. 2. The question to be submitted to the electors must be stated in the order of .the board substantially as stated in the petition. 3. A submission of the question as stated in the order to the electors. ■ — Talley v. Crider, supra; Comm. v. Herne, supra; McElroy v. The State, 47 S. W. 359; In re Ryan, 1 Walker, 137; People v. St. Clair, 15 Mich. 85.</p> <p>The proviso in the order was mere surplusage and could be disregarded without affecting the integrity of the proceedings. — McCehee v. The State, 52 Ala. 224; Childress v. The State, 86 Ala. 77; Payne v. The State, 89 Ala. 26; Boothe v. The State, 18 Conn. 442; Belford v. Woodward, 158 111. 122; Holman v. Clark, 41 South. 765; 11 Ency. P. & P. p. 827 and 960.</p>

Heal’d before Hon. W. W. Haralson. Action by Benj. F. Pierce against A. R. Hooper. Judgment for plaintiff, and defendant appeals. This was an action for the statutory penalty for failure to satisfy the record of the mortgage.

<p>Appeal from Randolph Circuit Court.</p> <p>Heard, before Hon. S. L. Brewer.</p> <p>Action by Joseph Bradford & Son against M. M. Harris. W. D. Bassett filed a statutory claim. Judgment for defendant, and plaintiffs appeal.</p> <p>Joseph Bradford & Son recovered of M. M. Harris a judgment in the justice court of W. C. Rogers, a justice of the peace in and for beat No. 7, and procured execution on said judgment, which was levied by the constable upon certain guano, cotton seed, fodder, and corn, among other things. The appellee filed a claim to the same under the statute, and gave the usual claim bond. The exceution appeared to have been regular, but was levied by’W. W. Rogers, who was authorized in writing to make the levy by Adamson, the regular and lawful constable for that precinct. Upon the trial the claimant objected to the introduction of the execution and the return thereon, because the levy was made and the return signed by a deputy constable, on tbe ground that there was no such office, and the constable had no warrant or authority at law to deputize another to make the levy, and that this rendered the execution void. The court sustained the objection, and at the conclusion of the testimony the court gave the general affirmative charge for the defendant.</p> <p>Executions after they have been returned become a part of the record.— Ayres v. Boyer, 111 Ala. 651; Hanna v. Price, 23 Ala. 826; Woodward v. Harbin, 1 Ala. 104. The defendant in execution being the constable of the precinct in which the judgment was rendered, it was the duty of the justice. of the peace to place it in the hands of another constable of the county. — Section 979, Code 1896. A constable can appoint a deputy constable. — 25 A. & E. Eneje of Law, 674; Jobson v. Fennell, 35 Cal. 711; Taylor r. Brotan, 4 Cal. 188; Mvrlctt v. The State, 100 Ala. 42. The filing of the affidavit and claim bond admits the levy and estops the claimant from denying the levy. — Schamraglc v Whitehurst, 103 Ala. 260; Guy v. Lee, 81 Ala. 163; Mayer v. Clark, 40 Ala. 269. Unless the process is void on its face the claimant cannot take advantage of its defects. — Garter v. O’Brien Bros., 105 Ala. 314; Christian v. Michael, 121 Ala. 88; Scmdlin v. Anderson, 76 Ala. 404; Ellis v. Martin, 60 Ala. 394. The process was not void. — Street v. McGlerkin, 77 Ala. 580. The court erred in giving the affirmative charge for the claimant. — Jackson v. Bain, 74 Ala. 330; Shehan v. Hersberg, 75 Ala. 62.</p> <p>The levy was made by one Bo'dgers who was deputized by Adamson, constable, and the levy was absolutely void.- — Section 978, Code, 1896; Schamraglc v. Whitehurst, 103 Ala. 260; Nordlinger v. Gordon, 72 Ala. 239; Tolliver v. Lane, 23 Ala. 59; Bradley v. Clark, 22 Ala. 361; Jackson v. Bain, 74 Ala. 328; Flash v. Paul, 29 Ala. 141. •</p>

Heard before Hon. W. W. Haralson. M. C. Jordan sued one Moore for a debt and procured garnishment to issue to the Nashville, Chattanooga & St. Louis Railway against whom -Moore had recovered judgment. Thomas C. Rice and two others claimed the fund garnished, and filed the affidavit and bond as required by the statute. There was judgment for the claimant, and plaintiff appeals.

Heard before Hon. J. B. Gaston. Proceedings by Lula Phillips, a widoAV, against J. H. Phillips, executor, to have certain property set apart as exempt to her and her minor child from administration and payment of debts. From a judgment allowing the exemptions, the executor appeals.

Appear from Tallapoosa Probate Court. Heard before Hon. James W. Strother, Spedial Judge. Contest of probate of will between E. B. Rainey, Elia Ridgeway and others. From a judgment for Ridgeway and others, Rainey appeals. No public officer lias authority to perform any official act outside of the territorial limits of his jurisdiction unless such authority is conferred by statute. — State ex rol.

G. A. Sorrell. Application by G. F. Wilson for probate of a will and contest by M. J. Bostick. From a judgment refusing probate, proponent appeals. Something more than mere weakness of mind is necessary to show testamentary incapacity. — Bulger r. Ross, 98 Ala. 267; Berney v. Torrey, 100 Ala. 157; Seheiffcliu r. Heheiffclin, 127 Ala. 14; Garrett v. Heflin, 98 Ala. 618.

Heard before Hon. Samitee B. Browne. Petition by Herbert L. McConnell against the Camors-McConnell Company and P. I). Nettles, as secretary and treasurer thereof, for mandamus to compel respondents to permit petitioner to examine the books of a corporation. From a decree a Avar ding the Avrit, respondents appeal.

Hoard before Hon. William Jackson. Petition for mandamus by J. B. Loper to compel C. T. Ooolce, the clerk of the city court of Bessemer, to issue him a license for the sale of liquor by retail. The city court awarded the rule nisi, and from this judgment this appeal is prosecuted by defendant. The city of Bessemer has the authority to license, regulate and restrain the sale, giving away of spirituous liquors. — Acts 1900-01, p. 478; Smith v. Warrior, 99 Ala. 481.

Heard before Hon. John T. Lackland. The tax commissioner instituted a proceeding in the commissioners’ court in the name of the state, to raise the assessed value of the real estate of R. P. Allen. Upon hearing the cause, the commissioners’ court raised-the assessed value of his house and lot, but refused to raise his other property. From this order, the state appealed to the circuit court.

<p>Appeal from Montgomery Circuit Court. •</p> <p>Heard before Hon. J. C. Richardson.</p> <p>The Sellers '& Orum Company applied to the board of revenue of Montgomery county for a deduction in its assessment. The board denying the application, the company appealed to the circuit court, where judgment reducing the assessment was allowed, and the state appeals.</p> <p>The Sellers & Orum Company is a corporation organized under the laws of Alabama, with a capital stock of $40,000, fully paid in and divided into 400 shares each. The company appeared before the tax assessor of Montgomery count,y and gave in the shares and stock of said corporation for assessment, and desired to have deducted from the capital stock the sum of $20,000, and for reason therefor set up that $20,000 of the capital stock was invested in mortgages which were recorded in, Montgomery and other counties in the state, and on which they had paid the privilege tax of 15 cents per $100. The tax assessor declined to make the deduction, and they filed application with the board of revenue of Montgomery county, sitting as a board of equalization, objecting to the assessment made, and praying that it be corrected by a deduction of the mortgages representing $20,000 of the capital stock. The board of revenue declined to do this, and the corporation appealed to the circuit court, where judgment was rendered allowing the deduction and fixing the assessment at $20,000 for ad valorem tax.</p> <p>No deduction can be allowed not authorized by statute. — Jefferson County Savings Bank v. Hewitt} 112 Ala. 546. Exemptions from taxations are strictly construed. — Mayor v. Stonewall Co.} 53 Ala. 720. The statute provides an exemption of recorded mortgages from taxation and if corporations own the property which is exempt from taxation it is well settled that such property cannot be deducted from the assessment of shares made against the individual share holders. — Maguire v. Board of Revenue, 71 Ala. 401. The shares are the individual property of the share-holders, and the mortgages are the property of the corporation, and to permit the deduction Avould he in effect to reduce the assessed value of property o Aimed by the individual; so shareholding corporations not owning mortgages Avould be taxed at one rate Avliile share-holding corporations owning mortgages Avould he taxed at a different rate. This would be unconstitutional. — Sections 211 and 217, Constitution 1901; Spira r. The State, 41 South. 465 and authorities supra.</p> <p>On appeal in this character of case the trial is de noAro and the issue should have been made up between the parties in the circuit court. — Sullivan v. The State, 110 Ala. 95. Under section 3911 of the Code of 1896, as amended by the Acts of 1903, and under the provisions of the Acts of 1898-9, p. 46, the deduction asked for should haAre been allowed.</p>

Heard before Hon. Samuel B. Browne. Appeal by the court- of county commissioners of Washington county from an order of Samuel B. Browne, as judge of the Thirteenth judicial circuit, granting a rule nisi on a petition for prohibition against the court of county commissioners to prohibit the erection of a courthouse and jail at (diatom, to which the county seat had been removed. Prohibition was not the proper remedy. It is exercised only in the folloAving cases.

Aittoal from Birmingham City Court. Heard before Hon. Charles A. Senn. Mandamus on the relation of the Central Trust Co. of New York against Samuel E. Greene, judge of prohate, to compel the said judge to record a mortgage upon the tender of the proper record fee. The judge declined unless the tender was also accompanied by the mortgage franchise tax of fifteen cents per hundred dollars.

Original writ in Supreme Court. Mandamus by the state on the relation of John Wood to compel the transfer of the criminal charge for a misdemeanor pending against relator in the circuit court to the county court of Washington county. Mandamus is- the proper remedy. — State v. Kamil, 97 Ala. 107; Kao parte Bar Association, 29 Ala. Ala. 113.

Heard before Hon. C. W. Eerotu on. Action by Thomas H. Pryor against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. The complaint in this cause contained three counts— the first, in trespass for the wrongful taking of a lot of tools; second, damages for conversion of the same tools; and, third, detinue for the same tools. The case seems to have been tried on the count in detinue, and resulted in a verdict for the plaintiff.

Court.' Heard before Hon. H. A. Pearce. Action of trespass by J. E. Davis against tlie Miller Brent Lumber Company. From a judgment for defendant, plaintiff appeals. The following charges were refused to plaintiff: f 1) The affirmative charge.

Heard before Hon. A. H. Alston. Action by Mrs. S. F. Gosdin against A. J. Williams and others, for damages for trespass to land. From a judgment for defendants, plaintiff appeals.

Heard before Hon. J.’ B. Gaston. Petition by R. May Griffin for tbe probate of an alleged last will and testament of L. K. Boulti er, deceased, to winch the Working Woman’s Home Association of Montgomery, Ala., filed a contest and applied for the probate of a prior will, claiming that the will offered for probate by petitioner was a forgery. From a judgment for contestant, proponent appeals.

Heard before lion. H. A. Pearce. Dean sued Howard in detinue for tbe recovery of property, for which. Howard executed a forthcoming bond. There was judgment for plaintiff for the recovery of the property, from which judgment defendant appealed to the Supreme Court, where the judgment ivas affirmed.

<p> Motion io Vacate Judgment. </p> <p>Judgment; Vacation; Appeal; Presumption. — In the absence of information as to what proof was made before the trial court, it ■will be presumed on appeal that the designations of the property furnished sufficient data to render the description intelligible and so to uphold the verdict and judgment.</p>

Hoard before Hon. Charles A. Sehn. Action by B. B. Comer against the Age-Herald Publishing Co., for libel. From a judgment sustaining demurrers to complaint plaintiff appeals. This Avas an action begun by Braxton B. Comer for damages for libel growing out of a communication published in the Birmingham Age-Herald with the intent to defame plaintiff. The publication is as follows: “Comer’s Idea of Honesty Peculiar. Wanted to Pay His Cousin and “Do’’ the Railroads.

Heard before I-Ion. Charles A. Senn. Action by B. B. Comer against the Louisville & Nashville Railroad Company and others, for libel. The facts are similar to those in the case of Comer v. Age-Herald Co./ next above. From a judgment sustaining demurrers to the complaint, plaintiff appeals. The publication was libelous per se.— Iron- Age Pub.

Heard before Hon. A. H. Alston. Trover and case by E. I). Myrick against the Alabama Cotton Products Company and others, for the conversion of certain cotton, and for the destruction of plaintiff’s lien. There was judgment for plaintiff, and defendant appeals. The court erred in giving the affirmative charge. — Section 991, Code 1896; Dcermg v. Lightfoot, 16 Ala. 28. Whether or not defendant had notice of the lien was for the jury. — 16 A. & E. Ency. of Law, 796.

Heard before Hon. D. W. Speake Action by Jere C. King against Augustus C. Rogers in trover and trespass. From a judgment for plaintiff, defendant appeals. Under the facts in this case there was no evidence to support- trespass, or of any disturbance of plaintiff’s possession.

Heard, before Hon. Thomas W. Coleman, Jii. Action by J. N. Hamilton against John H. Barlow and others for assault'. From a judgment in favor of plaintiff against defendants Barlow and Hasleum, they appeal. The first count is in Code form for assault and battery.

Appeai. from Franklin Circuit Court. Heard before Hon. Joseph H. Nathan. Action sounding in damages for assault and battery, begun by Xute Massey against Arthur DeArman. The proceedings were begun by attachment levied upon real estate on the ground that defendant was an ablconder.

Heard before Hon. A. D. Sayre. Action of detinue by Vulcan Iron Woi’ks Company against John D. Roquemore, the facts of which are sufficiently stated in the opinion of the court. From a judgment for plaintiff defendant appeals. In detinue no recovery can be had unless the plaintiff has the right to- immediate possession of the property. — Ryall v. Pearson Bros., 41 South. 673.

<p>Appeal from Coosa Circuit Court.</p> <p>I-Iearcl before Hon. S. L. Brewer.</p> <p>Detinue by W. C. Gunn against F. M. Pruitt and. D. H. Riddle to recover a horse and rifle. From a judgment for plaintiff, defendants appeal.</p> <p>The evidence tended to show that plaintiff owned a clay-bank colored horse which was taken from his father’s place about December 17, 199,3, by a Mr. Dodd, and that it was the horse in question in this suit. The proof further tended to show that W. C. Gunn lived with his father, J. M. Gunn, at the time the horse was taken. The defendants offered in evidence an execution issued from the justice court of J. L. London in a cause wherein D. H. Riddle was plaintiff and J. W. Gunn was defendant, requiring the constable to levy on the goods, chattels, etc., of said J. W. Gunn. The date of the judgment was November 29, 1902. The date of the execution was October 21, 1903, requiring a return of the execution on the 28th day of November, 1903. Execution was endorsed, executed by levying on one horse, one gun, one keg, one cow, and one calf as the property of defendant, and after advertising same for ten days sold at public outcry to the highest bidder for cash, of date November 17, 1904. Defendant further offered the certificate of judgment, and its registration in the probate office of Coosa county in the case of Riddle v. J. W. Gunn. J. C. Carmichael was examined as a witness for defendant, and testified that he was a justice of the peace that tried the case at Goodwater ,and that he sent up all of the papers in the case, including an execution issued by J. L. London, justice of the peace, against J. W. Gunn, that the constable Pruitt claimed to hold the property under that execution that is involved in this suit; that he sent the same by mail. On cross he testified that there might have been one paper more left out inadvertently, that lie tried to get them all; that he could be mistaken, and that he had not made any search for other papers since he sent them up. It was admitted by the plaintiff that the execution was not in the file of papers, and that the present clerk and the former clerk would testify, each, that they had searched the office for the papers, and that they were not in the file, and that the execution issued by London against J. W. Gunn in favor of D. II. Riddle was not in their possession. Here the defendants offered to prove the contents of the execution issued by J. L. London, justice of the peace, a few days before the 18th day of December, 1903, returnable some days after, at which and under which the property involved in this suit was being held by F. M. Pruitt, the constable, at the time the suit was brought. Upon objection this was denied. Defendants Riddle and Pruitt assign errors separately.</p> <p>It ivas necessary for appellant to show when the debt to Riddle was created, and merely to show the judgment was not sufficient.— Eli v. Blacker, 112 Ala. 311; Garew v. Love, 30 Ala. 577; Burden v. McWilliams, 31 Ala. 206. If the property had been loaned to J. W. Gunn, and remained in his possession! more than three years before Riddle gave credit to J. W. Gunn, then as between Riddle and the other Gunn, plaintiff, Riddle would have a superior claim to the mule which was swapped for the property in this suit.-— Mathis v. Thurman, in MS.; Carr v. Lester, 90 Ala. 349; Cornell v. Stout, 10 Ala. 796. It was permissible to show the record of the judgment certificate, and the possession of this property peaceably acquired and the connection of this defendant with that lien and title. — ■ Dunklin v. Wilkins, 5 Ala. 199; Traylor v. Marshall, 11 Ala. 460; Bennett v. McGhee, 38 South. 129. Enough was shown to entitle defendant to make secondary proof of the execution of the papers. — Laster v. Blackioell, 128 Ala. 143. The mere fact that Sug Gunn sold the mule does not show title. — Patterson v. Trvin, 132 Ala. 557. The plaintiff was liable for his aliquot portion of the cost which is half. — Wébb v. Reynolds, 138 Ala. 398.</p> <p>Defendant could not shown an outstanding title in a third person.— Thorn v. Kemp, 98 Ala. 417; Mitchell v. Thomas, 114 Ala. 461. The execution being levied more than sixty days after its issuance, the levy is void. — Section 1932, Code 1896. — Waldrop v. Friedman & Loveman, 90 Ala. 167. Errors assigned not injurious to appellant are not available to reverse the judgment. — Eslava v. Farley, 72 Ala. 214.</p>

Heard before Hon. A. J. Driver, Jr. Application of Dora Harrist for a writ of habeas corpus for the possession of Annie Harrist against Smith Harrist and others. Judgment for petitioner, and respondent appeals.

<p>Appeal from Coosa Circuit Court.</p> <p>Heard before Hon. A. H. Alston.</p>

<p> Violating Oity Ordinance. </p>

<p>Appeal from Jackson Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p>

<p>Appeal from Dale Chancery Court.</p> <p>Heard before Hon. W. L. Parks.</p>

<p>Appeal from order of W. L. Parks, chancellor, admitting defendant to bail.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. .0. W. Ferguson.</p>

<p> Damages for Personal Injury. </p>

<p>Original writ in Supreme Court.</p>