Volume 153 — Alabama Reports

Heard before Hon. John T. Lackland. Walter Pittman was convicted of an assault and battery, and he appeals. The defendant was indicted for assault with intent, and convicted of assault and battery. The bill of exceptions shows with reference to Stallworth the following : “The defendant then offered to introduce as a witness in his own behalf B. H. Stallworth, court bailiff.

Heard before Hon. William B. Bankhead, Special Judge. General Crenshaw was convicted under an indictment charging assault and battery with a weapon, and assault with a weapon, and he appeals. Reversed and remanded. The character of the charge and the facts relating thereto are sufficiently stated in the opinion of the court.

Heard before Hon. S. L. Weaver. Kosa Ward was convicted of assault and battery, and sbe appeals. Affirmed. The defendant was charged with assaulting Florence Walker with intent to murder her. The pleas were not guilty, and not guilty by reason of insanity.

Heard before Hon. G. K. Mller. James Holified was convicted of crime and appeals'. Tbe time for signing tbe bill of exceptions cannot be extended beyond tbe commencement of tbe court succeeding that of tbe trial by tbe written consent of tbe parties or tbeir counsel.— Davis w. The State, 146 Ala. 157; Adams v. The State, 40 South. 85; 132 Ala. 590; 138 Ala. 594; 140 Ala. 228; Rule of Practice, No. 30, p. 1200. Code 1896.

Heard before Hon. O. J. Semines. Antwine Heningburg was convicted of murder in the second degree, and he appeals. The facts are sufficiently stated in the opinion of the court.

<p>Appeal from Elmore Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Ben Harris was convicted of murder in the second degree, and appeals.</p>

<p>Appeal from Talladega City Court.</p> <p>Heard before Hon. G. K. Miller.</p> <p>Moses Dates was convicted of murder and appeals.</p>

Heard before Hon. S. L. Brewer. Bobo Parker was convicted of murder in tbe second degree, and he appeals. Tbe defendant Avas indicted for unlaAvfully and with malice aforethought killing Tobe EdAA’ards by cutting or stabbing him Avitb a knife. The evidence tended to sboAAr, for tbe state: That defendant came into tbe bouse of deceased and said something about all tbe damn coons being there.

Heard before Hon. T. L. Sowell. Henry Walker was convicted of homicide, and. be appeals. Defendant is indicted for killing Maggie Dickerson by striking her with an ax or a pistol, or with some other instrument unknown to the grand jury. The facts as to the motion to quash the venire and as to objections to testimony are sufficiently stated in-the opinion.

<p>Appeal from Elmore Circuit Court.</p> <p>■ Heard before Hon. J. C. Richardson.</p> <p>William Riggsby ivas convicted of murder, and lie appeals.</p>

Heard before Hon. W. H. Thomas. Mark Graham was convicted of robbery, and appeals. The defendant was indicted for robbing one Edmund Milligan of $2. J. A. Bailey was permitted to testify for the state that he lived near old man Edmund, and that he went to the place where Edmund was said to have been robbed.

Heard before Hon. W. H. Thomas. Frank Boyd was, convicted of robbery, and be appeals.

■ Heard before Hon. John T. Lackland. Walter Mason was convicted of burglary, and appeals. The charges requested and refused to the defendant are as follows: “(1) Before you Can convict a defendant, each of you must he satisfied to a moral certainty, not only that the proof is consistent with the defendant’s guilt, but that it is wholly inconsistent with every rational conclusion.

Heard before Hon. H. A. Pearce. Alex Davis was convicted of arson and he appeals. Under the facts in this case the defendant should not have been convicted. — 2 A. & E. Ency. of Law, p. 926 and notes. The evidence showed the construction of the building to be so far advanced as to make it ready for habitation or use. — 3 Cyc. 990, and note 53.

<p>Appeal from Barbour Circuit Court.</p> <p>Heard before Hon. A. A. Evans.</p> <p>Sandy Battle was convicted of petit larceny and appeals.</p> <p>Charge 1 should have been given. — Churchwell v. The State, 117 Ala. 124. Charge 2 should have been given. — Jachson v. The State, 136 Ala. 22; Churchwell v. The State, supra; Burton v. The State, 115 Ala. 1.</p> <p>No order is shown granting extension of time for signing bill of exceptions, and there is no error in the record.</p>

<p>Appeal from Barbour Circuit Court.</p> <p>Heard before Hon. A. A. Evans.</p> <p>Hiram Battle was convicted of petit larceny and he appeals.</p>

AppEAL-from Jefferson Criminal- Court. Heard before Hon. D. A. Greene. Mattie Merriweather was convicted of petit larceny, and she appeals. The defendant ivas arrested under an affidavit and warrant issued on the 15th day of March, 1907, by one of the inferior courts of Jefferson county, and made returnable to the criminal court of Jefferson county. She was arrested and committed to jail on the 15th day of March, 1907.

Heard before Hon. H. A. Pearce. Doc Johnson was tried and convicted of violating a •criminal contract and appeals. Under the evidence in this case the defendant' could not be found guilty, and the court erred in the admission of the contract. — Copeland v. The State, 97 Ala. 30; Guthrie v. The State, 111 Ala. 40. Owens was an independent contractor and Johnson could have sued the county for wages earned by him under the contract which he made with Owens.

Heard before Hon. S. L. Weaver. ' George B. Houston was convicted of obtaining money Under false pretenses, and appeals.

Heard before Hon. S. L. Weaver. George Houston was convicted of obtaining money by false pretenses, and appeals.

Heard before Hon. Thomas W. Davis. Lamar Hamilton was convicted of using insulting, obscene, and abusive language in the presence of females, and he appeals. The- original affidavit charged that he got off or on- a moving train; also resisted process by an officer and threatened to cut officer with- pocket knife; also cursed in the presence of females.

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. S. L. Weaver.</p> <p>Sam Cobb was convicted of using profane and insulting language in the presence of females, and appeals.</p> <p>The defendant was charged with using profane langauge in the presence or hearing of females. This was the wording of the affidavit which was taken before a justice of the peace, and on which a warrant was issued returnable to the Jefferson criminal court. The warrant charged abusive, insulting, or obscene language in the presence or hearing of females. Demurrer was interposed to the affidavit, because it fails to charge any offense known to the law, which demurrer was overruled. No amendment is shown by the record; hut the judgment entry recites that on motion of the solicitor leave was granted to amend the affidavit so as to insert after the word “profane,” and before the word “language,” the words “abusive, insulting, or obscene.” The defendant was convicted, and fined $1 costs.</p> <p>No brief came to the Reporter.</p>

Heard before Hon. John T. Lackland. Andy Murph was convicted of selling liquor without license, and appeals. Tlie rule being satisfied if the substance of the count or declaration is testified to by a witness, the exact words not being necessary in laying a predicate, the court erred in refusing to admit the testimony. — 17 Ala. 219; 19 Ala. 51; 7 Ency. of Evi., p. 124.

Heard before Hon. T. L. Sowell. Wade Sweatt was convicted of retailing spirituous, vinous or malt liquors without license and contrary to law, and he appeals. The court erred in overruling defendant’s objection to the testimony of the witness Lotvery. — Jernigan v. The State, 91 Ala. 58. The court erred in allowing proof of other sales. — Cost v. The State, 96 Ala. 60; 89 Ala. 249.

Heard before Hon. J. B. Shivers. Application by Grant Davis for writ of habeas corpus. From a judgment denying the writ, applicant appeals.

<p> Habeas Corpus. </p> <p>Convicts; Contracts for Service; Immunity From Arrest.- — The state, by permitting a convict to choose for whom he will perform service, and to make a contract for such service and custody, does not grant the convict immunity from arrest and punishment for another crime, and the person contracting with such convict assumes the risk of his subsequent arrest and punishment. Such contractor may not procure his release on habeas corpus from such subsequent arrest by virtue of his contract with the convict.</p>

Heard before Hon. C. C. Nesmith. Action by Peter Lee against the Birmingham Railway, Light & Power Company for personal injuries. From a judgment for plaintiff, defendant appeals. The nature of the action and the pleading criticised are sufficiently stated in the opinion of the court. The second count was eliminated, and trial was had on the first, third, fourth, fifth, sixth, seventh and eighth counts.

Heard before Hon. C. W. Ferguson. Action by Mrs. M. E. Hawkins, a passenger, against the Birmingham Kailway, Light & Power Company for damages for personal injury. From a judgment for plaintiff in the sum of $1,750, defendant appeals.

Heard before Hon. Samuel B. Browne. Action by Robert F. Bell against tbe Mobile Light & Railroad Company. From a judgment for plaintiff, defendant appeals. Action for damages for injuries in being thrown from a car by a sudden jerk. The allegations of the second count oí the complaint are sufficiently set forth in the opinion.

Atteal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Personal injury action by Susie R. Melton against the Birmingham Railway, Light & Power Company. From an order granting defendant a new trial on verdict and judgment for plaintiffff, plaintiff appeals. The judgment of the court in overruling defendant’s demurrers to counts 1 and 2 of plaintiff’s complaint, was without error.— Armstrong v. Montgomery St. Ry. Go., 123 Ala. 233; Bir. Ry.

Heard before Hon. Cl W. Ferguson. Action by E. A. Wiright ..against the Birmingham Bailway, Light & Power Company. From a judgment for plaintiff, defendant appeals.

Heard before 1-Ion. A. D. Sayre. Action by Jesse Geopp against the Central of Georgia Bailway Company for damages for personal injuries suffered by plaintiff Avhile a passenger on defendant’s train, as the result of a collision. From a judgment for plaintiff in the sum of $1,950, defendant appeals. The pleadings and the facts are sufficiently stated in the opinion of the court. The defendant requested the following, among other charges, which were refused: “Charge 3.

Heard before Hon. W. W. Pearson. Action by J. J. Grant, a passenger,- against tbe L. & N. R. R. Co., for damages received while alighting from defendant’s train. From a judgment for plaintiff defendant appeals. The judgment is void because rendered at a term of the court.held not authorized by law. The act to amend sections 897 and 911 of the Code 1896, Acts 1907, p. 367, is violative of article 4, sec. 44, Constitution 1901.

Appear from Gadsden City Court. Heard before Hon. John H. Disque. Action by John Cook, a passenger, against the Southern Ry. Co. for damages for being put off short of destination. From a judgment for nominal damages -plaintiff appeals.

Heard before Hon. Charles W. Ferguson. Action by J. H. McDonough against the Birmingham Bailway, Light & Power Company. From a judgment for plaintiff, defendant appeals. The court erred in sustaining demurrers to defendant’s pleas. The matters set up therein could be presented only by special ple.a — Southern Ry. Go. v. Lynn, 121 Ala. 297.

Heard before Hon. Samuel B. Browne. Action by Callie Y. Smith against the Mobile, Jackson & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Action by Callie Y. Smith against the Mobile, Jackson & Kansas City Railroad Company for damages. The nature and character of the action and the tendencies of the evidence are sufficiently stated in the opinion of the court.

Heard before Hon. W. W. Haralson. Action by Adelaide E. Stewart, administratrix, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. W. W. Haralson. Personal injury action by Annie Bell Harris, by next friend, against the Nashville, Chattanooga & St. Louis Railway. From a judgment for defendant, plaintiff appeals. Under the evidence the plaintiff was not chargeable with contributory negligence. — 4 Mayf. Dig. 310. Section 3440, Code 1896, requires that the engineer reverse his engine, and other things mentioned therein, else he is guilty of negligence. — G. of Ga. Ry.

Heard before Hon. O. W. Ferguson. Action by Annie May Jones, by her next friend, against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals. The plaintiff though an infant of seven years old could be a trespasser. — H. A. & B. R. R. Go. v. Robbins, 124 Ala. 133; A. G. 8. R. R. Go. v. Mover, 116 Ala. 642.

■ Heard before Hon. Jos. H. Nati-ian. Action by Harrington Weatherlow, pro ami, against the Southern Railway Company, for damages alleged to have been received while crossing the tracks of the Southern Railway Company at a public road crossing. From a judgment for plaintiff, defendant appeals. The allegations of the fourth count sufficiently appear from the opinion.

Heard before Hon. C. W. Ferguson. Action by E. L. Hayes against the Birmingham Railway, Light & Power Company for personal injuries. From a judgment for plaintiff, defendant appeals. The case was tried on counts 5, B, C, and D. Count 5 was for wanton or intentional injury.

Heard before Hon. Charles A. Senn. Personal injury action by Porter Landrum against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals.- There is no assignment of error calling in question the ¿ction of the court on the pleading. The first and third counts are in simple negligence. The second count was in wanton or willful injury.

Heard before 1-Ion. William Jackson. Action by I. S. Curl against tlie Woodward Iron Company. From a judgment for plaintiff, defendant appeals.

Heard before Jos. H. Nathan. Personal injury action by J. S. Yinzant against the Sloss-Slieffield Steel & Iron Company. From a judgment for plaintiff, defendant appeals. The court erred in permitting the question as to what was the reasonable cost of the lodging, boarding and clothing of the son since his return home, and since the injury. — Rays Neg. of Imposed Duties, pp. 605-6; Telfer v. N. R. R. Co], 30 N. J. L. 210.

Heard before Hon. William Jackson. Action by Clinton Curl, pro ami, against the Woodward Iron Company. From a jdugment for plaintiff, defendant appeals. The original complaint contained 11 counts to which was added by way of amendment counts 12 to 18, inclusive. Demurrers were sustained to counts 1, 5, 11, 12 and 14.

Heard before Hon. Osceola Kyle. Action by Roberta G. Young, administratrix, against the Louisville & Nashville Railroad Company. Judgment for plaintiff. Defendant appeals. For the facts in this case see L. & N. R. R. Co. v. Banks, 132 Ala. 471, 31 South. 573. The demurrers to count 3 as amended and to count A should have been sustained. — L. & N. B. B. Co. v. Crawford, 89 Ala. 240; Gothard v. A. G. 8. B. B..

Heard before Hon. S. H. Sprott. Action by tbe Planters’ Warehouse & Commission Company against the Alabama Great Southern Railroad Company. From a judgment for pla intiff ff, defendant appeals. Count 1.

' Appeal from Hale Circuit Court. Heard before Hon. B. M. Miller. Action by B. W. Coleman against the Southern Bail-way Company. From a judgment for plaintiff, defendant appeals. ■ Exceptions were reserved to the following oral charge of the court: ■ “The second count not only charges that it did not gét it there in a reasonable time, but that it was willfully and intentionally delayed. Was it intentionally or purposely delayed?

Heard before Hon. T. L. Sowell. ■ Action by L. B. Musgrove against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Counsel discuss the evidence but cite no authority. Counsel discuss the evir deuce but cite no authority.

Heard before Hon. H. A. Pearce. Action by A. F. Merrill & Co. against tbe Central oí Georgia Railway Company. Judgment for plaintiffs, and defendant appeals.

Heard before Hon. Samuel B. Browne. ■ Action by Charles C. Dickens against the Southern Railway- Company. . From a judgment for plaintiff, defendant appeals. , The first count alleged the negligent killing of a heif.er. The/second count originally alleged the crippling of ■a cow so as to diminish' her value. This count was amended so as to show that from the injuries received by being run over the cow died, and eliminating the diminution by striking out the allegation.

Heard before Hon. Daniel Collier, Special Judge. Action by Lee Fuller against the Tuscaloosa Belt Ey. Co. for injuries to his person and property. From a judgment for plaintiff defendant appeals.

Heard before Horn A, A. Coleman. Action by Octavia Sledge against the- Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. The allegations of the complaint and the contents of the message, for failure to deliver ivhich damages are sought, are sufficiently set out in the opinion.

Heard before Hon. A. D. Sayre. Action by W. H. Rowell against the Western Union; Telegraph Company to recover for breach of contract to deliver a telegram. From a judgment for plaintiff, de-; fendant appeals. As the character of the complaint is discussed in the. opinion, we set it out: “Count 1.

. Heard before Hon. T. L. Sowell. Action by the Jasper Investment Company against one Drennen and others. From a judgment in favor of plaintiff, certain defendants appeal. The court erred in overruling the motion to set aside and annul the summons in this case.— Sec. 3271, Code 1896; Mayo, et al. v. Stoneman, 2 Ala. 390; Johnson v. King, 20 Ala. 270; Boardman v. Parrish, 56 Ala. 54.

Heard before Hon. D. W. Speake. Action by C. N. Robinson & Co. against John M. Russell. From a judgment for plaintiffs, defendant appeals.

Appear from 'Birmingham City Court.' ,, .Heard before Hon..C. W. Ferguson. e - Action by A. L. and. P. W. Higginbotham against Louisville & Nashville Bailroad Company. Judgment fcr .p.iaintiffs, and.defendant appeals. Action for damages for diverting water by pumping andfdr the obstruction of the stream, causing a filling pf,the.spring.

Heard before Hon. A. H. Alston. Action by Dennis Elmore and others against S. D. Fields. From a judgment for defendant, plaintiffs appeal.

, Heard before Hon. W. W. Haralson, i .. Action by tbe Bank of Attalla against E. A. Morris. From a judgment for plaintiff, defendant appeals. Tbe first count in tbe complaint is for trover for tbe conversion of a bale of lint cotton on or about November 8, 1902. The second count is in case for destruction of a mortgage lien on said bale of cotton.

Heard before Hon. H. A. Peakce. Action by H. M. Monk against tbe Gulf Yellow Pine Lumber Company. From a judgment for plaintiff, defendant appeals. H. M. Monk sued the Gulf Yellow Pine Lumber Company for trespass for entering upon certain lands described in the complaint, and for trover by it for the conversion of 115 pine trees, the property of the plaintiff. Tt is alleged in the complaint that both counts refer and relate to the same subject-matter.

Heard before Hon. A. A. Evans. Trespass and trover by R. C. Ketcham against J. D. Holman for the recovery of certain mules. From a judgment overruling a motion for a new trial, defendant appeals. R. C. Ketcham sued J. D. Holman in trespass and in trover for the taking and conversion by him of two mules. Holman justified under the mortgage, the contents of which are sufficiently stated in the opinion of the court.

Heard before Hon. Thomas W. Coleman, Jr. Action for libel by J. W. Galiiher against the Labor Review Publishing Company. Judgment for plaintiff, and defendant appeals. The libelous matter is set out in tbe opinion of the court, and as set out was contained in the first count, which was stricken on demurrer.

Heard before Hon. O, W. Ferguson. Action for false imprisonment by Ed Sanders against Thomas Davis. From a judgment for defendant, plaintiff appeals. The pleadings are fully discussed in the opinion of the court. The evidence objected to is also set out in the opinion.

Heard before Hon. Charles A. Senn. Action by Georgia Lee against the Birmingham Railway, Light & Power Company. From a judgment in favor of plaintiff: defendant appeals. The nature and character of the action and pleadings, the tendencies of the evidence, and the excepted to portions of the court’s oral charge are sufficiently stated in the opinion of the court.

Heard before Hon. D. W. Speake. Action by W. I. Spealcman against J. W. Vest for slander and assault and battery. From a judgment for plaintiff, defendant appeals.

Heard before Hon. W. J. Pearce. Action by Eula Ragan against A. J. Williams. From a judgment for plaintiff, defendant appeals. Affirmed.

Heard before Hon. Thomas H. Smith. Action by the Mobile Transportation Company against the city of Mobile and others to enjoin interference with riparian rights. From a decree dismissing the bill for want of equity, plaintiff appeals. Fresh water rivers of whatever kind so ever belong to the owners of the soil adjacent thereto. — ; Smith v. Rochester, 24 Am. Hep. 393.

Heard before Hon. W. L. Parks. Bill by Annie O. Engrain, executor of the will of Major L. Ramser’ and others, against Anna Y. Crawford, administrator.

' Heard before Hon. A. H. Benners. Action between B. S. Catchings, as assignee, and W. EL MacAfee, as assignee. From the decree, W. H. MacAfee, as assignee, appeals. There may be' two decrees, one settlting the merits, and the other based on the report of the register, and from each an appeal will lie. — Bradford v. Bradley, 37 Ala. 433; Jones v. Wilson, 54 Ala. 50; Malone v. Mariott, 54 Ala. 486; Adams v. Sayre, 76 Ala. 509; Sec. 426, Code 1896.

Heard before Hon. Alfred H. Benners. . Bill by J. J. Long and another against William Boast to quiet title. From a decree for respondent, complainants appeal. There were irregularities admittedly in both sales, and the rights of complainants are based upon section 4089, Code 1896. Where the statute of limitations has run in favor of any party, he may make it the grounds of affirmative proceedings thereafter. — Cooley bn Taxation, 3rd and 2nd Vols., p. 1023.

Heard before Hon. W. H. Simpson. Bill by George Dolberry and others as administrators of Absolom Dolberry, against John and Ben Dolberry, for cancellation of deeds. Prom a decree for respondents, complainants appeal.

Heard before Hon. W. W. Whiteside. Bill by Mamie Ware Matthews and others against ,T. D. McKenzie, administrator. From the decree, the administrator appeals. Where the creditors and the heirs are not injured they have no right to complain. — Patapsco Guano Go. v. Ballard, 107 Ala. 710. After the court has acquired jurisdiction of the estate it will do equity between all parties concerned. — Mc('onico r,. Gannon, 25 Ala. 462.

Heard before Hon. W. L. Parks. Six actions by John W. Prestwood and by Emma Tompkins against C. R. O’Neal and others, and by John W. Prestwood and others and by Emma Tompkins and others against C. R. O’Neal and against Covington county. From judgments for plaintiffs, defendants appeal. A. L. Rankin, for appellant Covington County.

Heard before Hon. H. B.-Foster. ■ Bill by James Larry against S. H. Brown for specific, perfoimance of' a contract.

Arpead from Morgan Oliancery Court. Heard before Hon. W. H. Simpson. Bill by Elbert Sanders against J. J. Gurley to declare null and void certain deeds executed to the said J. J. Gurley by the father of said J. J. Gurley and the grandfather of complainant, on account of undue influence and incompetency to contract at the time the deed was made. From a decree denying relief, this complainant appeals. .

Heard before Hon. W. H. Simpson. Bill by Richard L. Stephenson against C. C. Harris, and others, to set aside certain sales of land made at’ the instance of Harris under mortgage and execution on foreclosure. From a judgment for respondent plaintiff appeals.

Heard before Hon. W. H. Simpson. Bill by J. C. Sheats against W. It. Francis. From a decree for complainant, respondent appeals. The executions against Sheets and the sale thereunder were not void. — Griffin v. Daughpin, 31 South. 849; Albritton v. Williams, 32 South. 636; Marks v. Woods, 31 South. 978.

<p> Bill for Injunction and for Specific Performance. </p> <p>1. Vendor and, Purchaser; Contract for Sale of Land. — The owner of land offered to sell it for a certain price and the prospective purchaser accepted the offer by letter, provided the title was good. Held, the sale was complete.</p> <p>2. Frauds; Statute of; Contract for Sale of Land. — The owner of land offered by letter to sell it for a certain price and the purchaser accepted the offer by letter, provided the title was good; a deed to the land was executed by the owner and placed in the hands of a third party to be delivered on payment of the purchase price. Held, a sufficient compliance with the statute of frauds.</p> <p>3. Specific Performance, Grounds; Contractual Relations. — J. agreed to sell certain lands to R. and on discovery that a part of the land was owned by his brother, procured from his brother a power of attorney authorizing him to convey his brother’s interest in the land. The deed was executed by J. in his individual capacity and as attorney in fact for his brother. The acknowledgment to the power of attorney and to the deed was defective and R. required that the defect be remedied. Before this was done J. died. Held, R. was not entitled to a decree against the brother of J. requiring a conveyance of his interest in the land, as no contractual relations are shown to have existed between them.</p> <p>4. Deeds; Execution; Acknowledgment; Attestation. — Although the acknowledgment to the deed and to the power of attorney was defective, both of them were valid, under section 1982, Oode 1896, were both the deed and the power of attorney were attested by one witness.</p> <p>5. Principal and Agent; Power of Attorney; Death of Agent. — In the absence of special provisions in a power of attorney to convey land, as to its being carried out by an heir or representative, it will be held a mere power to the agent which cannot be executed by the representative or heir of the agent.</p> <p>6. Injunction; Adequate Remedy at Law. — An injunction will not be granted to prevent the prosecution of a suit to recover the statutory penalty for cutting trees upon the land of another on the ground that the defendant in the suit entered on the land and cut the timber, believing that a contract for the sale of the land to him had been consummated, since such a defense is available to defeat the action sought to be enjoined.</p> <p>7. Vendor and Purchaser; Performance of Coivtract. — Although the deed is not properly acknowledged, a vendee, who did not bargain for any particular form of conveyance, could not refuse to aceejit an unacknowledged deed which conveyed the legal title.</p> <p>8. Specific Performance; Other Remedy. — Whatever may be the vendee’s rights to have this deed returned his remedy is not specific performance where his agent without authority returned the deed to the vendor on the ground that it was not properly acknowledged.</p> <p>9. Same. — A vendee who had not contracted for an acknowledged deed cannot reject a valid deed conveying the legal title, refuse to pay the purchase money and then file a bill for specific performance in order to get a properly acknowledged ded.</p>

<p> Specific Performance. </p> <p>1. Brokers; Authority to Sell Land. — An agent wrote tbe owner of a lot submitting an offer for the lot of $1,500.00, less commission. The owner replied that he thought $1,700.00 a fair price for the lot and that it would be acceptable to him. Held, sufficient to authorize the agent or broker to bind the owner by a contract to sell the lot at $1,700.00 gross.</p> <p>2. Specific Performance; Contract for Sale of Land; Tender of Pu.rchase Price. — Where the vendee of land pays a part of the purchase money under a contract providing that the balance need not be paid until the delivery of the deed he is under no necessity to tender the balance before filing a bill to specifically perform the contract, on the vendor’s refusal to comply with the contract.</p>

Heard before Hon. Alfred H. Benners. Bill to quiet title by J. A. McDaniel against the Tennessee Coal, Iron & Railroad Company, et al. From a decree granting insufficient relief, complainant appeals.

Heard before Hon. A. H. Benners. Bill by Mary,Anchors by L. W. Johns to enforce statutory redemption. From a decree for complainant, respondent appeals. It would be inequitable and unjust for the wife of a mortgagor to be permitted to deprive the purchaser of the land Avithout the payment of the purchase price. It Avould be inequitable to permit the complainant to redeem the land as a judgment creditor. — McGough v. Shceetser, 97 Ala. 361.

<p> Bill to Declare an Absolute Deed a Mortgage, and to Have Been Obtained by Fraud. </p> <p>1. Aclcnoioledgment; Talcing and Certifying; Time. — An acknowledgment is not void because not certified at the very time the execution is made.</p> <p>2. Same; Construction. — Certificates of acknowledgment should be liberally construed and held sufficient if it fairly appears that there has been a substantial compliance with the statute.</p>

<p>Appeal from Talladega City Court.</p> <p>Heard before Hon. G. K. Miller.</p> <p>Bill by M. L. Smith, et al. v. E. J. Smith, et al., to have a deed absolute on its face declared a mortgage and to be let in to redeem. From a decree overruling demurrers and motion to dismiss the bill, E. J. Smith, et al., appeal.</p> <p>Where no debts exist a mortgage is impossible. —Martin v. Martin, 123 Ala. 191; Peeples v. Strolla, 57 Ala. 53; West v. Hendricks, 28 Ala. 226. It is not enough that the party intended the conveyance to be a mortgage and considered it a mortgage; nor is inadequacy of price or consideration of itself sufficient to convert a deed into a mortgage. — Authorities supra; Reeves v. Abercrombie, 108 Ala. 535. It is not pretended or intimated that E. J. Smith ever intended the instrument to operate as a mortgage and the facts alleged would not create an equitable mortgage. — Pearson v. Dancer, 144 Ala. 427. There is nothing in the allegation of the bill on which to base the theory of fraud in the procurement. — Campbell v. Larmore, 84 Ala. 499; Goetter v. Pickett, 61 Ala. 387. It is not competent to prove that an .instrument of conveyance was delivered to the grantee as an escrow. —Garner v. Fite, 93 Ala. 405; Hargrove v. Melbourne, 86 Ala. 270; Strickland v. Griswold, 43 South. 105. There is nothing in the allegations of the hill to raise a trust, either constructive or resulting. — Patton v. Beecher, 62 Ala. 579; Pearson v. Dancer, supraj Brock v. Brock, 90 Ala. 86. '</p> <p>The bill can be sustained on the ground that the deed was intended to be a mortgage and operate as such. — ■ Shrove v. McGowan, 143 Ala. 665; Hieronymous Bros, v. Glass, 120 Ala. 46; Cramer v. Brown, 114 Ala. 612; Williams v. Ragan, 111 Ala. 621; Gidden v. Powell, 108 Ala. 621; Elston v. Comer, 108 Ala. 76. While it may be significant that no evidence of indebtedness ivas taken, it is not necessary to do so in order to raise up the relation of debtor and creditor. — Gerson v. Davis, 143 Ala. 381; Richter v. Mall, 128 Ala. 198; T. C. I. & R. R. Co. v. Wheeler, 125 Ala. 538; Reeves v. Abercrombie■, 108 Ala. 535; Henderson v. Horton, 133 Ala. 669. The respondent became a trustee ex male ficio or ex delicto on the allegations of the bill. — Manning v. Pippin, 95 Ala. 543; 2 Pom. Eq. Jur. Sec. 1055; 15 A. & E. Ency. of Law, p. 1184; Deegle Wentz, 93 Am. Dec. 763; Cannon v. Gilmer, 135 Ala. 302; Waller v. Jones, 107 Ala. 331; Kyle v. Perdue, 95 Ala. 579; Spies v. Price, 97 Ala. 168. Under the allegations of the bill confidential relations existed of trust and confidence. — Authorities next above; Adams v. Sayre, 70 Ala. 318; S. U. & N. I. Co. v. Dangaix, 103 Ala. 388; Walling v. Thomas, 133 Ala. 426. The bill was not multifarious. — 119 Ala. 175; 114 Ala. 601; 132 Ala. 107. Nor ivas it barred by the statute of limitations or laches, — -Waller v. Jones, supra; Richter v. Nall, supra; Walling v. Thomas, supra; Mullen v. Walton, 142 Ala. 166; G-erson v. Davis, supra.</p>

Appear from Morgan Chancery Court. Heard before Hon. W. H .Simpson. Bill by Leila S. Wilder against the mayor and council of the city of Decatur and another. Judgment for nominal damages for plaintiff, and plaintiff appeals. Depreciation in the market value is the question to be considered. — Commissioners v. Street, 116 Ala. 28; 10 A. & E. Ency. of Law, 1174.

Appear from Morgan Chancery Court. Heard before Hon. W. H. Simpson. Action by Charles Edward Albes against the Southern Railway Company and others to enjoin the vacation of a street, etc. From a decree overruling a motion to dismiss, and overruling demurrers to the bill, defendants appeal. The allegations of the bill are as follows: (1) That orator is a citizen of Morgan county under the age of 21 years.

Heard before Hon. W. W. Whiteside. Bill by R. Y. Salmon, as administrator, etc. ,against W. H. Wynn, as administrator, etc., and others, to have the chancery court assume jurisdiction of the further administration of the estate of a decedent and to require-the administratrix of the deceased executor of decedent’s estate to file her accounts and make a final settlement of the deceased executor’s acts as executor of decedent’s estate to file her accounts and make a final…

Heard, before Hon. W. W. Whiteside. Bill by Julia E. Cotney against J. W. Farrow, to have a former deed declared a mortgage and to cancel it because given to secure the debt of the husband. ' From a judgment for complainant respondent appeals. Mrs. Cotney could by deed absolute on its face, convey her land in payment of the husband’s debt. — Gidden v. Powell, 108 Ala. 62T; Mohr v. Gi-iffin, 137 Ala. 467.

Heard before Hon. Charles A. Senn. Bill by the Wood-Dickerson Supply Company against Lois Cocciola and others. From a judgment sustaining demurrers to the bill, plaintiff appeals.

Heard before Hon. A. D. Sayre. Bill by A. B. Brassell against F. B. Fisk, to reform certain deed mentioned therein, and for a money judgment. From a judgment for defendant plaintiff appeals. By concealment and misrepresentation of material facts touching the quality of the land, respondent paid complainant for 1,480 acres of the land and received conveyance and title' to 1,540 acres of land. A court of equity will grant relief in such cases. — 2 Pom. Eq. Jur.

Heard before Hon. Alfred H. Benners. Bill by John Silvey & Co., as existing creditors of F. H. Vernon, against F. H. Vernon and Frances H. Vernon, his wife, to subject to the payment of complainants’ debt certain real estate, alleged to have been purchased with funds of the husband, and title thereto taken in the name of the wife. From decree dismissing the bill, complainants appeal.

<p>Appeal from Walker Law and Equity Court.</p> <p>Heard before Hon. T. L. Sowell.</p> <p>Action by S. Y. Cunningham and another against the Carbon Hill Coal Company. From a judgment for plaintiffs, defendant appeals.</p> <p>The damages alleged were speculative and remote and the demurrers should have been sustained. — Moultlirop v. Hyatt, 105 Ala. 493; Reicl Lbr. Go. v. Lewis, 94 Ala. 626. The court erred in striking pleas 11, 12 and 13. — Troy Fert. Go. v. Logan, 96 Ala. 619; Bishop on Contracts, secs. 835 and 1445. An offer of a sum by way of compromise of a claim tacitly admitted is admissible unless accompanied with a caution that the offer is confidential. — 1 Greenl. sec. 192; Baker v. Baynes, 40 South. 968. The court erred in refusing the 14th charge requested by appellant.— L. M. I. & A. Co. v. Preston, 119 Ala. 290. Also in refusing the 15th charge. — Lehman v. McQueen, 65 Ala. Ala. 570. The court should have given the 17th charge. —16 Oyc. 926 and 928.</p> <p>The' demurrers to the complaint were properly overruled. — Brigham v. Car-lisle, 78 Ala. 243; Bell, et al v. Lee, 78 Ala. 511. Counsel discusses other assignments of error, but cites no authority.</p>

9. Evidence; Admissibility. — Where the defendant sets up fraud or misrepresentation in the procurement of his acceptance of certain bills of exchange and the plaintiff replies that he is a purchaser for value without notice before maturity and proves his purchase for value before maturity, and defendant fails to show' such actual knowledge or notice to the plaintiff of the infirmities in the bills of exchange, evidence as to the fraud or misrepresentation is not admissible.

Appear from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Action by the Evans Marble Company against D. J. McDonald & Co. Prom a judgment for defendants, plaintiff appeals. The proof showed that the account was correct and stated. — Burns v. Campbell, 71 Ala. 286; Ware v. Manning, 86 Ala. 343; 2 Greenl. sec. 126. The sworn statement of McDonald filed in a former suit on the same cause should have been admitted. — 1 A. & E. Ency. of Law, pp. 678 and 708.

Heard before Hon. A. A. Evans. Action for money had and received by the Fitzpatrick Square Bale Ginning Company against Robert McLaney. From a judgment for defendant, plaintiff appeals. The first count of the complaint is in statutory form for money bad and received.

Heard before Hon. John T. Lackland. Action by Frank Poe against the Southern Timber & Investment Company. From a judgment in favor of plaintiff, defendant appeals. Frank Poe sued out an attachment against the Southern Timber & Investment Company, a. nonresident, to enforce a money demand, which was levied on certain personal property and real estate described in the returns of the sheriff.

Heard before Hon. W. W. Haralson. ■. Action by the Alabama National Bank against C. C. Parker & Co. From a judgment for defendants, plain - 1 iff appeals. • For ¡pleadings and facts in this case, see former report, 146 Ala. 573, 40 South. 987. Demurrers should have been sustained to defendant’s amended pleas 1 and 1%. — Ala. Nat. Bank v. Parker & (Jo., 146 Ala. 513.

Heard before Hon. H. A. Pearce. Action by the Mayfield Woolen Mills against the First Bank of Elba, with J. M. Garrett and others as garnishees. From a judgment for plaintiff against the gar, nishees, they appeal. The court found the facts to be as follows: “That at the spring term, 1901, of the circuit court of Coffee county, the Mayfield Woolen Mills recovered a judgment against L. EL Morris for the sum of $1,144.88, besides cost of suit.

Heard before Hou. Henry F. Reese, Special Judge. Action by J. T. Powell, as administrator of the estate of C. D. Powell, deceased, against the Prudential Insurance Company of America. From a judgment in favor of defendant, plaintiff appeals. The court erred in failing to strike defendant’s pleas. — 111 Ala. 579; 2 Brick. Dig. 333. The court erred in overruling appellant’s demurrers to pleas 3, 4, 5, 6, 9 and 11. — Sec. 2602, Code 1896.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. A. A. Coleman.</p> <p>Action by W. A. Brown against T. W. O’Byrne. From a judgment for defendant, plaintiff appeals.</p> <p>The complaint is in the following language: “Plaintiff claims of the defendant the sum of $200, for this:' That heretofore, on, towit, the 1st day of February, 1904, defendant signed an instrument in writing, which said instrument was also signed by plaintiff, in which said instrument it was agreed that the sum of $60 per month should be paid to the plaintiff for a certain two-story brick house in Pratt City, Ala., on First avenue, between Third and Fourth streets, as rent for said building, which Avas to be occupied by McDaniel & Bowers for a saloon from the 1st day of February, 1904, to the 31st day of December, 1904. And plaintiff avers that the rents for the months of November and December, 1904, towit, $120, with interest, have never been paid, and that the same are now past due, and that there are no offsets or counterclaims against the same. [Here follow the stipulation to pay attorney’s fees, and allegations that $80 was a reasonable fee, and an allegation of waiver of exemption.] Count 2: Plaintiff claims of the defendant the sum of $200 under and by virtue of the terms of a certain written instrument bearing date, towit, February 1, 1904, whereby plaintiff leased to McDaniel & Bowers a certain two-story brick house in Pratt City, Ala., on First avenue, between Third and Fourth streets, to be used and occupied by said McDaniel & Bowers as a saloon from the 1st day of February, 1904, to the 31st day of December, 1904, at a monthly rental of $60 per month. [Here follows an averment of rent due same as in count 1; also an averment to pay attorney’s fees and of a waiver of exemption.] And plaintiff avers that the payment of said rent and the performance of all other terms and conditions of said lease was guaranteed by the defendant T. W. O’Byrne, and that the said O’Byrne, by signing said lease or instrument in writing, did guarantee the payment of said rents.” The third count was added by way of amendment, setting out the lease contract in so many words, with the other averments as contained in counts 1 and 2. The fourth count is the same as the third count, with the additional allegation that the defendant executed said agreement for a valuable consideration as a surety for the said McDaniel & Bowers. The fifth count is the same as the third, with the additional allegation that the defendant executed said contract as a surety for the said McDaniel & Bowers. The sixth count is the same as the third, with the additional averment that the defendant executed said contract by signing his name thereto and agreed to guarantee the performance of the covenants therein on the part of said McDaniel & Bowers. The seventh count is the same as the third count, with the additional allegations of the fourth and sixth counts. By additional amendment the written contract is made a part of the first and second counts. What is said in the opinion and in the pleading sufficiently describes the lease contract and the manner of the defendant’s signature thereto. The defendant demurred to the several counts of the complaint, raising the propositions decided in the opinion. The demurrers to the complaint were sustained, and, the plaintiff declining to plead over, judgment was rendered for defendant.</p> <p>Parol testimony was admissible to supply the words omitted from the instruments in writing. — Boykin v. Bank of Mobile, 72 Ala. 269; Gliitty on Bills & Notes, 151. Contracts must be interpreted in the light of surrounding circumstances, the occasion -which gives rise to them, the relative position of the parties, and their obvious design as to the object to be accomplished in order to arrive at their true meaning, and to carry out their intetntion. — Robinson v. Bullock, 58 Ala. 618; Russell v. Erwin, 41 Ala. 292; Lehman v. Levy, 69 Ala. 48; Rutledge, Admr. v. Townsend, 38 Ala. 706; Owen v. McGhee, 61 Ala. 440'; Summerhill v. Tapp, 52 Ala. 227; Bank of Mobile v. Coleman, 20 Ala. 140; Pollard v. Maddox, 28 Ala. 321; McTyer v. Steele, 26 Ala. 487.</p> <p>The questions at issue have been fully and definitely settled by this court. — Fite, et al. v. Kennemar, 90 Ala. 470; Hammond v. Thompson, 56 Ala. 589; Blythe v. Largan, 68 Ala. 270; Davidson v. Ala. S. & W. Co., 109 Ala. 383. These principles are also sustained by the following-cases from other courts. — 45 U. S. 225; 128 Mass. 538 ; 144 111. 213; 74 Hun. 536; 54 N. Y. St. 915; 24 N. Y. Supp. 1081;; 9 Cyc. 301.</p>

Heard before Hou. H. A. Pearce. Garnishment of Fox Henderson on a judgment recovered by the Mayfield Woolen Mills against the First-Bank of Elba. Judgment having been rendered against the garnishee, he appeals. At the organization of the First Bank of Elba Henderson became subscriber amounting to $8,400', on which he paid before garnishment the sum of $5,220. The bank was organized in October, 1899. In July, 1903, Henderson sold to Malone his entire holdings in said bank.

Heard before Hon. D. W. Speake. Action by R. A. Lasseter against the Aetna Life Insurance Company. Judgment for plaintiff, and defendant appeals. The evidence proves tlie special pleas and the court erred in giving the general charge for appellee and in refusing a like charge to ajipellant. — Ü. B. Soc. v. Freeman, 36 S. E. 764; Lyon v. R. P. A. Go., 46 la. 631; Merrill v. Traveller’s I. Go., 64 N. W. 1039; Baltimore E. R. Asso. v. Post, 9 Am.

<p> Assumpsit. </p> <p>Appeal; Waiver of Error; Failure to Urge Objection. — Assignments of error are considered waived where appellant does no more than refer to the assignments of error and says that the court erred in these several matters.</p>

Heard before Hon. Charles A. Senn. Action by J. G. Hendrix against Jefferson Oonnty Savings Bank. From tbe judgment for plaintiff for a nominal sum, he appeals. In tbe situation of tbis case, tbe defendant was the proper party to prove tbe indebtedness against tbe bankrupt estate and to receive all dividends that may be declared, tbe defendant being liable to plaintiff for the full amount of tbe check. — Trinidad Nat. Bk. v. Denver Nat.

Heard before Hon. John T. Lackland. Action by the English Manufacturing Company against the Southern Timber & Investment Company. From a judgment in favor of plaintiff, defendant appeals. The facts in this case are in all respects similar to those stated in Southern Timber & Investment Company v. Poe, 153 Ala. , 45 South. 205.

Heard before Hon. W. W. Pearson. Quo warranto by the state of Alabama, on the relation of Will Goodgame and another, against Emmett A. Matthews. Prom a judgment for defendant, relators appeal. The whole question in this case is, whether' or not, any but qualified electors can hold an elective office in Alabama. Quo warranto is the' proper mode of procedure. — State ex rel. Harris v. Elliott, 117 Ala. 150'.

Heard before Hon. A. O. Lane. Petition by the state, on the relation of P. E. Salts-man, for quo warranto to test the right of John B. Weakley and others to the office of police commissioners of the city of Birmingham. Prom a judgment sustaining a demurrer to the petition, relator appeals. The law creating the Police Commission of Birmingham is a local law under section 110 of the Constitution of 1901. — Covington v. Thompson, 142 Ala. 107; State ex rel.

Heard before Hou. D. W. Speaks. Quo Avarronto by tbe state on tbe relation of M. K. Clements against C. E. Frost, seeking to have said Frost ousted from holding tbe office of mayor of tbe town of Athens, on tbe ground that be is usurping said office. From a judgment for relator, respondent appeals.

Original petition in the Supreme Court. Writ of prohibition on the part of Kelly to this court praying for an order restraining the judge of the 5th Judicial Circuit from organizing or holding a term of the circuit court at Goodwater, and to order said judge to transfer his cause to the docket of the circuit court at Rockford. The act passed was a local law. — Sec. 105, Constitution 1901; City Council of Montgomery v. Reese, 43 South. 116.

Heard before Hon. William Jackson. Cicero Miles was prosecuted for a violation of the ordinance of the town of Brighton. From an order of discharge, the town appeals. Counsel discusses assignments of error and cites authorities in support thereof but does not discuss the matters touched upon in the opinion of the court. Counsel discuss errors insisted on but does not discuss the matters touched upon in the opinion.

Heard before Hon. S. L. Brewer. E. N. S. Lee was convicted of violating an ordinance of the town of LaFayette. From a judgment of conviction, defendant appeals. The cause is tried on the following agreed statement of facts: “The Wrought Iron Range Company is a manufacturing concern with its offices located in St. Louis, Mo., in which city and state it also has a factory in which are manufactured the ranges sold hy its traveling salesmen throughout Alabama and other states.