Volume 154 — Alabama Reports

■Appeal from Jefferson Criminal Court. Heard before Hon. D. A. Greene. George Raymond, alias, etc., was convicted of larceny from the person, for taking a pair of gloves, a money purse, and money from Harriet E. Hewitt, and lie appeals.

Circnit Court. Heard before Hon. W. W. Haralson. Willis Hodge was convicted of larceny and he appeals. ' ’ Heard, in fixing the time when the chickens were stolen, said that it was in January or February, and certainly after Christmas, before the indictments was preferred. Phillips, another witness for the state, fixed the time of the larceny as sometime before going before the grand jury, not longer than six months before.

Heard before Hon. Thomas W. Coleman, Jr. Pink Boyd was convicted of receiving or concealing stolen property and he appeals. The judgment does not conform to the verdict . — People v. Johnson, 71 Cal. 384.

Heard before Hon. Dan A. Greene. Rufus Clemm was convicted of larceny, and lie appeals.

Heard before Hou. H. A. Pearce. Alonzo Reynolds was convicted of an unlawful homicide, and he appeals. Defendant was indicted for murder in the second degree for the killing of Henry Boswell. The testimony of the killing, as detailed by the wife of the deceased man, was that the deceased and the defendant had been to Troy that day in a wagon, and when they returned Henry Boswell came to the house, leaving the others to put up the mule.

Heard before Hon. Thos. L. Sowell. Albert Burkett was convicted of murder and appeals. Defendant was indicted for murder in tbe second degree for killing Wilson Holsenback by cutting him with a knife or some other sharp instrument to tbe grand jury unknown. Demurrers were interposed to tbe indictment: “(1) In that it charged in tbe alternative tbe instrument with which tbe alleged killing was done, and one of tbe alternative averments ivas insufficient.

Heard before Hon. I-I. A. Pearce. George Smith was convicted of murder in the first degree, and appeals. The defendant was convicted of murder in the first degree, and sentenced to life imprisonment. The record having been mislaid, it is impossible to make a statement of the facts.

Heard before Hon. Dan A. Greene. Richard Wray ivas convicted of murder in the second degree, and appeals. The defendant ivas prejudiced by the action of the court in compelling him to proceed with his defense before the state closed its case. -Moore v. Growdcr, 72 Ala. 79; Tate v. The State, 86 Ala. 33.

Clair Circuit Court. Heard before Hon. A. H. Alston. Ed Osborn was convicted of murder in -the second degree and sentenced to ten years in the penitentiary, and he appeals.

Appear from Loo Law and Equity Court. Heard before Hon. Arp,but E. Barnett. • Will Swint was convicted of assault with intent to ravish a female, and he appeals. The following charges were requested by, and refused to, the defendant: “(1) The character of the woman alleged to have been assaulted with regard to chastity may be proven, and the jury may weigh such evidence, together with all the evidence in the case, in determining the guilt or innocence of the defendant.

Heard before Hon. Alto V. Lee. George Moore was convicted of assault and battery, and he appeals. Appellant was indicted for assault with intent to murder, convicted of assault and 'battery, and fined $250 by the jury. The court added six months’ hard labor as a punishment. From this judgment the defendant appeals, and assigns as error the action of the court in adding the hard labor sentence, certain objections to evidence, and the refusal to give certain charges.

<p>Appeal from Autauga Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Pettus Gordy was convicted of crime and appeals.</p>

Heard before Hon. J. C. Richardson. Prosecution of H. Y. Brooke for libel. From a judgment overruling defendant’s demurrer to the complaint, and sustaining demurrers to special pleas of defendant, he appeals. The defendant was tried for publishing a libel which tended to provoke a breach of the peace. The information filed by the solicitor in the case is set out in the .opinion of the court.

Heard before Hon. T. N. Hickman. M. H. York was convicted of selling mortgaged property, and he appeals. Counsel discusses assignments of error, but cites no authority.

Heard before Hon. G. K. Miller. John Elston was convicted of failing to perform a written contract with his surety, who had confessed judgment with him, under Code 1896, § 4571, and appeals. Under the contract on which the prosecution is based- no conviction could he had in this case. — Smith v. The State, 82 Ala. 40; Davis v. The State, 95 Ala. 9; Winslow The State, 97 Ala. 68.

<p> Retailing Liquor Without License. </p> <p>Oourts; Term Not Authorised by Law; Judgment. — A judgment rendered at a term of the court not authorized by law is void, the court being without jurisdiction to grant it.</p>

Heard before Hon. Alto V. Lee. Thomas Lacy was convicted of wantonly or maliciously throwing a missile calculated to produce death or great bodily harm at or into a passenger car forming a part of the railroad train, towit, a passenger car of the Alabama Great Southern Railroad Company, a corporation. From this conviction, and a sentence to the penitentiary of five years, the defendant appeals.

Heard before Hon. Alto V. Lee. Eugene Stafford was contacted of disturbing a meeting for religious worship, and he appeals. Appellant was tried by the court without a jury for disturbing religious worship, convicted, and fined $100. Prom this judgment he appeals.

Heard before Hon. S. L. Weaver. W. H. Rogers was convicted of carrying a concealed weapon, and appeals. The affidavit charged that W. I-I. Rogers, whose name is otherwise unknown to affiant, carried a pistol concealed about his person.

Heard before Hou. William Jackson. Louis R. Dean was convicted of violating Code 1896, 5 5368, requiring conductors of trains to keep thereon sufficient good drinking water, and lie appeals. The section under which the indictment was drawn was intended for the comfort and convenience of passengers. — Dean r. The, State, 149 Ala. 34.

<p> Retailing TÁquor. </p> <p>Indictment; Name of Accused; Plea of Misnomer. — Where the indictment alleged the name of the accused as “W. J.,” coupled with the allegation that the defendant’s name was unknown to the grand jury otherwise than as stated, the indictment was sufficient under the statute, and a plea of misnomer setting up that the defendant was not named “W. J.” but was known and called as “James” was properly stricken on motion .</p>

Heard before Hon. T. A. Johnson. Zall Hammond was convicted of carrying a pistol concealed and he appeals. The record must show that the defendant pleaded to the indictment, or that he stood mute, whereupon the court entered a plea of not guilty. — Jackson v. The State, 91 Ala. 55; State v. Books, 49 L. R. A. 189. Arraignment and pleading was not done away with by section 5262, Code 1896.

Heard before Hon. W. H. Thomas. Alfred Dozier was convicted of a violation Of Act March 7 1907, § 17 (Acts 1907, p. 469), imposing on any person soliciting orders for tbe enlargement of photographs or for picture frames, or selling picture frames, a license tax, and he appeals.

Heard before Hon. J. C. Richardson. Ejectment by S. M. Dinkins, for the use, etc., against H. S. Latham. From a judgment for defendant, plaintiff appeals. The mortgage was void and the defendant obtained no rights thereunder.

Heard before Horn J. W. Mabry. Ejectment by the People’s Bank & Trust Company against the Tissier Hardware Company. Judgment for defendant, and plaintiff appeals. A. L. McLeod, and J. L. Satterfield, for appellant. Under the lease it is not the option that is subject; to a sale of the property, but it is the number of terms the lessee can hold, if the lessee should choose to exercise its option at the expiration of the lease.

Heard before Hon. C. W. Ferguson. Action of ejectment by John T. McCombs against L. L. Stephenson, et al., to recover certain shale or stone. From a judgment for defendant, plaintiffs appeal. The deed construed conveyed to the Henry Ellen Coal Company, for a valuable consideration all the coal ores and other minerals and metals in, under and upon certain lands described therein.

Heard before Hon. A. B. Coleman. Ejectment by Sarah E. Royal against Peter F. Goss and others. From a judgment for defendants, plaintiff appeals. The plaintiff claimed title through a deed of gift executed by O. Royal on the 6th day of May 1882, and proof of prior possesson. The defendants claim through a deed with general covenants of warranty executed by plaintiff and her husband, C. Royal, to the defendants Robinson & .Tones on the 11th day of April, 1894.

Heal’d before Hon. Palmer. Pillans, Special Judge. Ejectment by George H. Stephens against Louisa Barnwell and others. From a judgment for defendants, plaintiff appeals. The facts as to the plaintiff’s title are sufficiently stated in the opinion as are the tendencies of the evidence to show possession.

Heard before Hon. A. A. Coleman. Statutory ejectment by E. W. King and others, as administrators, etc., against Belton Gilreath. From a judgment for defendant, plaintiffs appeal. Real estate of a decedent was not assets subject to the payment of debts at common law. — Scott v. Ware, 64 Ala. 177; Brown on Jurisdiction (2nd Ed.), sec. 67.

Heard before Hon. C. W. Ferguson. Action by the Alabama State Land Company against the Warrior River Coal & Land Company. From a judgment for plaintiff, defendant appeals. In actions at common law ejectment, the title must be in the lessor of the plaintiff at the date of his demise, and at the time of the bringing of the suit.— Etowah Mining Go. v. Carlisle, 127 Ala. 663.

Heard before Hon. Samuel B. Browne. Action by Rowena Lorah against Calvin Emmerson. From a judgment for defendant plaintiff appeals. The plaintiff, on the trial, introduced evidence tendr ing to show the facts as stated in the opinion of the court.

Heard before Hon. William Jackson. Proceeding in the nature of quo warranto by the state, on the relation of J. R. Smith and others, against Frank Polk and others to vacate a religious corporation organized by them. From a judgment of ouster, defendants appeal. It is alleged by-the relators that the Beulah Baptist Church was duly incorporated on the 1st day of March, 1907, which appears by certificate and under authority as shown by the minutes of the church.

Heard before Hon. H. A. Pearce. Information by the state, on the relation of George Leslie and others, against Y: L. Bracldn and others, to test title to a public office. Judgment for respondents, and relators appeal. The act approved August 9, 1907 (Loc.

Heard before Hon. A. I). Sayre. Quo warranto by the state of Alabama, on the relation of Henry B. Gray against the Louisville & Nashville Railroad Company. From a judgment of ouster, defendant appeals. Most of the facts as to the information and pleadings appear in the opinion of the court, but for the purposes of this report it is deemed advisable to set out pleas 16 and 17, which are as follows: 16.

Heard before Hon. A. A. Coleman. Information by tbe state, on the relation, of John L. Parker, and by John L. Parker individually, against George B. Ward to require defendant to show by wbat authority he exercises and discharges the duties of the office of president of the council of the city of Birmingham. Judgment for relator, and defendant appeals.

<p> Mandamus. </p> <p>1. Supersedeas; Qtcashing of Execution. — Where execution is issued on judgment in vacation supersedeas is the remedy to quash or stay the execution.</p> <p>2. Same; Authority to Issue in Vacation. — A writ of supersedeas may be issued in vacation by the judges .of the circuit court returnable at the next term.</p> <p>3. Same; Proceedings; Notice. — While a plaintiff in execution is entitled to notice of hearing in term time, he is not entitled to notice of the filing of the application for supersedeas in vacation.</p> <p>4. Same; Waiver of Defects. — By appearing in term time and filing answer to an application for a writ of supersedeas applied for in vacation, and demanding a jury trial, a plaintiff in execution waives any irregularities in the issuance and the return of the writ, and is not entitled to mandamus to compel the setting aside of an order overruling the motion to quagh the writ for irregularity in its issuance.</p>

Original petition to the Supreme Court by Clant O’Neal for mandamus to compel the circuit judge of Covington county to transfer relator’s cause to the city court of Andalusia. The whole question involved is whether the act creating the city court of Andalusia is violative of the constitution. Construing sections 2 and 3 together, it will be observed that no attempt is made to take away any of the jurisdiction of the circuit court.

Heard before Spn. A. U. Sayre. Petition for mandamus by J. L. Walker against the city council of Montgomery and others. Judgment for petitioner, and defendants appeal. The petition of C. A. Thomas on November 6, 1903, and its disposition is res adjudicata of the petition here sought.

Heard before Hon. J. C. Richardson. Mandamus by G. A. Chitty against S. L. Tisdale, as clerk of the circuit court, to compel him to issue a certificate of attendance upon court. From a judgment denying the writ, plaintiff appeals. Counsel contend that the proper construction of section 4850 and 4851, Code 1896, is that a juror summoned for the trial of a capital case is entitled to his mileage and per diem pay, if he attends, although he is not sworn as a juror.

Heard before Hon. J. C. Richardson. Mandamus by James A. Hines to compel M. B. Salter, as county treasurer, to pay a county warrant. From a judgment denying the writ, petitioner appeals. Counsel insist that sections 4850 and 4851, Code 1896, entitled a juror who attends court ( although summoned specially in a capital case) to his mileage and per diem pay, although- the juror be not sworn as a juror.

First case, appealed from Birmingham City Court- Heard before Hon. Charles A.’Sexx. Second case, appealed from Morgan Circuit Court. Heal'd before Hou. I). W. Speake. Mandamus by the state, on relation of M. E. Woodward, against William E. Skeggs, judge of probate; and by lien Meyer against Samuel E. Green, judge of pror bate, to compel the issuance of licenses to sell liquor. From judgments denying peremptory writs, plaintiffs appeal.

Original petition in the Supreme Court. Petition by J. L. Dean and. another for mandamus to the circuit court of C'oosa county and another.

Heard before Hon. S. L. Brewer. Detinue by (t. W. Farrow against John Norrell, in which I. D. Nolen made claim to the property. From a judgment in favor of plaintiff, claimant appeals. Detinue was begun by G. W. Farrow against John Norrell for one bay horse mule.

Heard before Hon. John T. Lackland. Action by the Charter Gas Engine Company against H. M. Barton in detinue to recover a gas engine and boat. From a judgment for plaintiff, defendant appeals: Defendant failed to replevy the property within the time required by law, and plaintiff then filed bond:and took charge of the property under the statute. On the trial judgment was rendered for defendant for the boat, together with the use and hire thereof.

Heard before Hon. A. A. Evans. Detinue by J. H. Davis & Co. against F. A. Thomas. From a judgment for defendant, plaintiff appeals. Mortgages on personalty must be recorded in the county in which the grantor resides, and also in the county where the property is at the date of the conveyance. — Section 999, Code 1896 and citation.

Heard before Hon. John T. Lackland. Action by P. M. Creagh against the Southern Timber & Investment Company, a foreign corporation. From a default judgment for plaintiff, defendant appeals. The action was begun by attachment, the affidavit for Avhich discloses the fact that the defendant Avas a foreign corporation. The attachment was levied on a bay horse and certain other property described therein.

Arread from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Action by George W. Faulk against Addie M. Ray-ford, with writ of garnishment in aid of suit to the Equitable Life Assurance Society of the United States. From a judgment, denying a motion to discharge the garnishment and the garnishee, defendant appeals.

Heard before Hon. C. W. Ferguson. Action by the Louisville Packing Company against Hamilton H. Huffstutler. From' a judgment granting a motion of plaintiff to dismiss the suit, defendant appeals. Defendant interposed as a defense to the suit a counterclaim by way of set-off and recoupment.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. C. C. Nesmith.</p> <p>Action by Andrew J. McCarley' for summary judgment against H. K. White, attorney, for failure to pay over money collected. Judgment for defendant, and petitioner appeals.</p> <p>One who had received money as the agent of, or on the claim of, or in the right of another, is estopped from denying the title of his principal. — Hungerford v. Moore, 65 Ala. 232; Oollins v. Tillan, 26 Conn. 368; Witman v. Felton, 28 Mo. 601; Murray v. Vanderbilt, 39 Ba.rb. (N. Y.) 140; Roberts v. Bnlton, 14 Yt. 195; Day v. South-well, 3 Wis. 657. The employment of an attorney by the administrator creates no relation between the attorney and the estate, or a succeeding administrator. The relation is one between the attorney and the employing administrator personally. The attorney has no claims against the estate for his services and the allowance therefor will he made to the administrator. The collection of money by an administrator’s attorney' charges the administrator with it, and he is liable for the attorney’s default, embezzlement or conversion. — Abercrombie v. Skinner, 42 Ala. 633; Whitworth v. Oliver, 39 Ala. 286; John v. Sharpe (Ala.), 41 South. 735; Wilson v. Arricie, 112 U. S. 83; 11 A. & E. Eney. of Layv, 935 (2nd Ed.) Where an administrator has been charged or is chargeable on his settlement with property which he has converted, he may sue for same in his own name after an administrator de bonis non has been appointed. — -M<■G-ehec v. Slater, 50 Ala. 481; Dunlap v. Newman, 47 Ala. 429; Tomkies v. Reynolds, 17 Ala. 1.09; Brya.n v. Wilson, 27 Ala. 208. There can be no recovery at law of the personal assets of a decedents’ estate without the appointment of an administrator, and an administrator having been appointed, the legal title to the personal assets vests in him and can only be divested by a sale or under execution or other legal process, or by distribution.— Fretwell v. MoLemore, 52 Ala. 124; Sullivan v. Lawler, 72 Ala. 68, 72. Where an attorney collects money due his assumed client, he is estopped to deny that he is the attorney of the client in a suit by the latter for the money collected. — McFarland v. Crary, 8 Cowen (N. Y.) 253.</p>

Heard before Hon. C. P. Almon. Action by Thomas J. McGowan against A. T. Collins. From a judgment for defendant, plaintiff appeals. Section 1, Code 1896, does not change the common law, so as to invalídale instruments evidencing contracts not required by statute to be in writing, although signed by mark without a witness. — Pent on o. Williams, 48 South. 212.

Heard before Hon. William Jackson. Action by J. C. Stouffer against the Smith-Davis Hardware Company on a note. Prom a judgment for defendant, plaintiff appeals. The complaint shows: That two drafts were drawn by the Lyon-Taylor Company upon thja Smith-Davis Hardware Company on November 25, 1904, and that across the face of each draft or bill of exchange was indorsed the words: “Accepted.

Heard before Hon. A. A. Coleman. Action by G. W. Pappot against Mrs. Lute Howard. From a judgment for defendant, plaintiff appeals. Action on the common counts and for breach of contract. The first four counts were on the common counts. The others, six in number, were for breach of a contract and to enforce a materialman’s lien. There were a number of pleas and demurrers filed and passed on by the court, not necessary to be here set out.

Heard before Hon. Thomas W. Coleman, Jr. Action by T. B. Redmond & Co. against the Louisville and Nashville Railroad Company and others. There Avas judgment for defendants, and plaintiffs appeal. The resident engineer had the poAver to change the contract and bind the company on the quantum meruit, and the court improperly gave the affirmative charge for the railroad. — Henderson Bridge Co. v. McGrath, 134 U. S. 260; LaFayette R. R. Co. v. Tucker, 124 Ala. 515.

Heard before Hon. A, O. Lane. Action by A. Kanjutzky against the Tennessee Coal, Iron & Railroad Company. From a judgment for defendant, plaintiff appeals. The complaint is in the following language: (1) The common counts, all of them.

Heard before Hon. A. I). Sayre. Action by Sallie Watson, by next friend, against the Southern Mutual Aid Association. From a judgment for plaintiff, defendant appeals.

<p> Assumpsit. </p> <p>1. Evidence; Checks; Admission. — The admission of a note and a check drawn by one party in favor of a person not a party to the suit, where limited to a corroboration of a point already established by other evidence, and for that purpose only, is harmless, if error at all.</p> <p>2. Master and Servant; Compensation; Action for; Instruction. — ■ Although the place at which he worked belonged to another, the person doing the service is entitled to recover of defendant if employed by defendant.</p> <p>3. Same. — A charge asserting that if defendant did not employ Williamson for herself there should be a verdict for defendant, is properly refused for pretermitting the hypothesis that he might have been employed by her to perform service for someone else.</p> <p>4. Trial; Instructions; Conformity to Evidence. — A charge asserting that there is no evidence of the time of services and directing a verdict for defendant, is properly refused where the evidence for plaintiff shows the time of the contract, that he went to work immediately thereafter and worked until a certain time.</p> <p>5. Same; Jury Question; Directing Verdict. — Where there is a conflict in the evidence as to any material matter the affirmative charge is properly refused.</p>

<p> ü-arnishment. </p> <p>1. Garnishment; Subject of Garnishmennt; Negotiable Paper.— While a negotiable note is current as negotiable paper and subject to be transferred to a bona fide purchaser without notice and before maturity, the maker of the note is not subject to garnishment, nor chargeable as a garnishee of the original payee of the note.</p> <p>2. Same; Proceedings to Enforce; Answer of Garnishee. — The answer of a garnishee which showed that the note was negotiable and had been endorsed by the original payee and was not in his piosession, is sufficient answer of no indebtedness and does not authorize a judgment against the garnishee on his answer under section 2191, Code 1896.</p>

Heard before Hon. W. H. Simpson. Bill by Davenport Bros, and others against J. M. Led-better and others. From a decree for complainants, defendants appeal.

Heard before Hou. Alfred H. Benners. Bill by W. P. Elrod against William Woodard to restrain defendant's foreclosure of a certain mortgage, in which defendant filed a cross-bill for foreclosure. Decree for complainant, and defendant appeals. The court erred in refusing to suppress the deposition. — Sec. 727, Code 1896.

Heard before Hon. W. L. Parks. Bill by Fannie Charles Mitchell and others against Mary Ellen Baldwin and others to declare certain deeds void and to cancel the same as cloud upon title. From a decree dismissing the bill, complainants appeal.

' Appeal from Marion Chancery Court. Heard before Hon. W. H. Simpson. Bill by Walter Guyton against R. C. McCrory. From a decree overruling demurrers to the bill, defendant appeals.

Heard before Hon. Alfred H. Benners. Bill by William Baird against Allen P. Howison and others to enforce trusts. From a decree for respondents, complainant appeals.

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. Alfred H. Benners.</p> <p>Action by Charles T. Lehman and others against William B. Gunn and others. From a judgment for defendants, plaintiffs appeal.</p>

Heard before Hon. R. B. Kelly. Bill by Caroline E. Darden against L. S. Sehnessler trustee. There was a decree for defendant, and complainant appeals. Complainant’s contractual relation was that of surety-ship for her husband on the mortgage, and such contract being absolutely void the mortgages were incapable of ratification by her. — Price v. Cooper, 128 Ala. 392.

Heard before Hon. Saffold Berney. Bill by the American Lumber Company against the Tombigbee Valley Railroad Company. From a decree dismissing the bill, plaintiff appeals.

Heard before Hon. W. L. Park. Bill by S. J. Caraway, administrator, against Fanny Shehane, et al., to enforce a vendor’s lien. From a decree for complainants, respondents appeal. The failure to appoint a guardian ad litem for the infant defendants, must work a reversal in this case.- — Sec. 17, Code 1896; Ilibler v. Sproiol, 71 Ala. 50; Griffith v. Ventress, 91 Ala. 366; Barker v. Parker, 99 Ala. 239. Counsel discuss assignments of error, but cite no authority.

Heard before Hon. A. H. Benners. Bill by the Aetna Life Insurance Company against Abner P. Woodworth, Della K. Thompson, W. T. Berry, and others. From the judgment, the above-named defendants appeal.

Heard before Hon. Thomas H. Smith. Bill by John C. Brincat against Simon Metzger. From a decree for complainant, defendant appeals. The contract being between Brincat and Metzger, Brincat & Co., could not avail of any damages effected by the breach of the contract as there was no mutuality. — Watts v. Rice, 75 Ala. 289; Drennan v. Gilmore, 132 Ala. 248. We, therefore, insist that the plea filed was a complete answer to tbe suit.

Heard before Hon. A. D. Sayre. Bill by J. M. Brown and others against Richard Tillis and otliers. From a decree overruling' a demurrer to the bill and the motion to dismiss it for want, of equity, defendants appeal.

Heard before Hon. Alfred H. Benners. Bill by the Empire Guano Company against the Jefferson Fertilizer Company. From a decree dissolving the injunction, complainant appeals.

Heard before Hon. W. H. Simpson. Bill by W. I. Speakman against J. W. Yest and others for the final settlement of an alleged partnership. Judgment for respondents, and complainant appeals. The admission and the answer that a partnership existed are conclusive of that fact. — Gresham v. Ware, 79 Ala, 200; Tony v. Moore, 4 S. & P. 383. The right to- an accounting is clear from the uncontradicted evidence. — Harris v. Harris, 132 Ala, 208.

Heard before Hon. Thos. L. Smith. Action by Hunter, Benn & Co. against J. M. Ackley & Co., and others. From a judgment sustaining a demurrer to defendants’ cross-bill, they appeal. Hunter, Benn & Co. Company filed their bill against J. M. Ackley & Co., a partnership, for an accounting under a timber contract. J. M. Ackley & Co. filed an answer and cross-bill, seeking to abate- the purchase price for failure to be put in possession of certain timber purchased.

Heard before Hon. W. L. Parks. Bill by W. H. Williams against J. W. Davis. From a decree for defendant, complainant appeals. W. H. Williams filed his bill against J. W. Davis for a specific performance of a contract verbal to execute a mortgage.

Heard before Hon. Alfred H. Benners. Bill by J. N. Martin against Charles Clarke, et al., to enforce a vendor’s lien. From a decree dismissing the bill complainant appeals.

Heard before Hon. Charles A. Senn. Bill by Martha Jordan and others against J. C. How-ton and others, to enforce vendor’s lien on an undivided interest, and for a sale of the common property. From a judgment for complainants, respondents appeal. No compliance with chancery rules 40, 41 and 44 is shown.

Heard before Hon. L. D. Gardner. Bill by D. S. Carroll against J. W. Draughon and others for an accounting and to set aside a judicial sale. Decree for respondents on demurrer to bill, and complainant appeals.

<p> Bill to Remove Administration from Probate to Chanoery Court For cm Accounting by Surviving Partner; for Injunction and Receiver. </p> <p>1. Equity: Administration of Estate; Bill of Removal. — A bill filed by the distributee of an estate of a deceased partner against the surviving partner, who is also the administrator of the estate, seeking a removal of the estate from the probate to the chancery court, for an accounting by the surviving partner, his removal as administrator, for injunctive process to conserve the interests of all the parties and for a receiver to take charge of such assets patently contains equity.</p> <p>2. Partnership ; Right of ¡Surviving Partner; Who Entitled to Require An Accounting. — In the absence of special circumstances and conditions justifying it, a court of equity is without jurisdiction to protect and enforce the right oí persons interested in the assets of a partnership, dissolved by the death of one of the partners, since the surviving partner is entitled to the exclusive possession and control of the property qf the dissolved partnership and accountable only to the personal representative of the deceased partner.</p> <p>:>. Jicccircns; Appointment. — A bill filed by the distributee of the estate of a deceased partner against the surviving partner, who is also administrator of the deceased’s estate, which charges the surviving partner with misappropriation and sequestration of the assets of the co-partnersliip to his own personal benefit, in violation of his obligation to wind up the business without delay and with due regard to the interests • of those entitled to the proceeds, hut which shows that the surviving i>artner and the administrator owns real estate sufficient to protect complainant against loss on account of such misappropriation or sequestration and that such surviving partner and administrator will be entitled to one-third of the net assets does not warrant the appointment of a receiver; although it is further charged that the respondent has attempted and will attempt to convert his property into portable assets that the whole may be readily concealed or removed without the jurisdiction of the court, where said latter charges are .unsupported by'the facts pleaded.</p>

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before 1-Ion. Alfred H. Benners..</p> <p>Bill by J. R. Bryan against the mayor and aldermen of the city of Birmingham. From a decree for defendants, complainant appeals.</p> <p>The bill was filed to declare void an ordinance making it unlawful to establish and use any private cemetery in section 26, township 17 S., range 3 W., in Jefferson county, Ala., said area being within the police jurisdiction of the city of Birmingham, and to inter.any dead body within the corporate limits of the city of Birmingham, ór within any part of said section 26, township 17 S., range 3 W., in Jefferson county, Ala. (the said described area being within the police jurisdiction in said city), except Oak Hill Cemetery. Then follows [he penalty of not less than $25 nor more than $100 for violation of this ordinance. It is averred that Bryan established and opened for interment of dead human bodies a cemetery or burial ground outside of the geographical or territorial limits of the city of Birmingham, but within said section, township, and range above set out; that the land on which it was opened was his own; that the cemetery is properly laid off, fenced, and cared for; and that the effect of the ordinance will be to destroy the value of the property and to deprive orator of the proper use and benefit of his said property. The prayer is to restrain perpetually the operation of the ordinance and to enjoin the mayor and aldermen of Birmingham from its enforcement.</p> <p>It is not to be doubted that municipal corporations having the power conferred upon them, either expressly or by necessary intendment, may prohibit the establishment of cemeteries within the limits of their police jurisdiction, and may prohibit further burials in established cemeteries within the same limit; but they cannot exercise this power arbitrarily. A cemetery is not a nuisance per se. —65 Ala. 479; Monk v. Packard, 71 Me. 309; Upjohn v. Board of Health, 46 Mich. 542.. Cemeteries within the corporate limits of muncipal corporations are not nuisances per se. — New Orleans v. St. Louis Church, 11 La. An. 244; Musgrove v. St. Louis Church, 10 La. An. 431; Lakeview v. Lets, 44 111. 81. A municipal corporation has no authority without regard to circumstances to prohibit the lawful use of private property. — Town of Greensboro v. Ehrenrich, 80 Ala. 579.</p> <p>The ordinance is a police regulation and does not constitute a taking for public purposes without compensation. — 5 A. & E. Encv. of Law, 792-3. The ordinance was within the charter power. — Acts 1898-9, p. 1391; Campbell v. Kansas, 102 Mo. 326; 10 L. R. A. 593; St. Peter’s Episcopal Church v. Washington, 109 N. C. 121; Humphries v. Front St. Methodist Episcopal Church, 109 Ala. 132-138; Neto York v. Slack, 3 Wheelers Criminal Cases, 237■; People Oak Hill. Cemetery v. Pratt, 129 N. Y. 63-72; Charleston v. Wenhcorth, St. Baptist Church, Strob H. 306. See also, particularly, 1st Billon on Municipal Corporations, 4th Edition (Notes), pages 215 and 216; Boyd v. Montgomery, 117 Ala. 677 (680). Under the evidence in this ca.se a court of equity will enjoin the cemetery even without the ordinance. — Kingsbury v. Flowers, 65 Ala. 479; Lome v. Prospect Hill, 46 L. R. A. 237; Jung v. Ñeros, 71 Tex. 596. The ordinance complained of is set out at length in section 3 of the Bill. It is a penal ordinance and the court, no matter whether the ordinance is void or valid, will not restrain the enforcement of a penal ordinance, with certain specific exceptions. This ordinance does not fall within the exceptions. — City Council of Montgomery v. West, 40 Sou. Rep. 215; Old Domimon Telegraph Co. v. Powers, 140 Ala. 220; Brown v. The ay or & Aldermen of Birmingham, 140 Ala. 590; Burnett v. Craig, 30 Ala. 135; Moses & Beebe v. Mobile, 52 Ala. 198; Forcheimer v. Mobile, 84 Ala. 126; Mobile •<;. L. & N. R. R. Co., 84 Ala. 126; M. & W. O. R. R. v. Walton, 14 Ala. 207.</p>

I-Iearcl before Hon. W. L. Parks. Petition by Warren S-. Reese against W. R. Waller, as sheriff, and others. From a decree dismissing the petition, petitioner appeals. The chancellor should have granted the execution if satisfied that Reese prima facie had control over the decree on which execution was sought to be issued. — Smith v. Phillips, 54 Ala. 8; s. c. 62 Ala. 575; Bird v. Jones, 84 Ala. 339; Allen v. Draper, 98 Ala. 590.

Heard lief ore Hon. Alfred H. Benners. Bill by A. A. Adams against the Birmingham Realty Company. From a decree granting insufficient relief, complainant appeals.

Heard before Hon. Charles A. Senn. Bill by J. F. B. Jackson against the Birmingham Foundry Si Machine Company. From a decree in favor of defendant, complainant appeals. Held: “that such owners were entitled to an injunction although the use was authorized by the legislature and was necessary to the business of the company.” — Elliott on Roads & Streets, 2nd Edition, Sec. 666, page 715; Pa.

Heard before Hon. Alfred H. Benners. Felicia Tedescki files her bill to abate a nuisance and for damages, and I. Barnett, alias Blanche Bernard, is made a party respondent thereto.

Heard before Hon. W. L. Parks. Action by the Lehman-Durr Company against George A, Folmar and others. Upon reversal of a decree ordering a sale of certain lands and putting complainant, the purchaser, in possession, the respondents moved for restitution and an accounting of rents. From a decree in favor of petitioners, other than George A. Folmar, for restoration of possession and a reference as to the rents, the Lehman-Durr Company appeals. On motion to dismiss.

Heard before Hon. W. H. Simpson. Bill to redeem mortgaged land by the firm of Trigg, Dobbs & Co. against H. B. Greemvood, Sara E. Greenwood, and Thomas A. Cox. From a judgment overruling demurrers to the bill, this appeal is prosecuted.

Heard before Hon. A. D. Sayre. Bill by W. A: Gunter and others against S. S. Belser and others. From a decree sustaining a demurrer to the bill, complainants appeal. Neither of the requirements of the statute Avere complied with.

Heard before Hon. Alfred H. Benners. Bill by C. A. Howze and others against C. F. Johnson and others. From an order dissolving a temporary injunction, complainants appeal. The courts will interfere to protect property rights and to compel an accounting in matters of this kind. — Otto v. Journeymen Tailors, 7 Am. St. Rep. 160; Burke v. Roper, 79 Ala. 143; Gieske v. Anderson, 77 Cal. 247; Watson v. Jones, 13 Wall. 679; Fitts v. Jones, 59 Am.

Clair Chancery Court. Heard before Hon. W. W. Whiteside. Bill by the Alabama Iron & Steel Company against Samuel O. Fowler to quiet title. From the judgment respondent appeals. Under the pleadings in this case the chancery court had nothing to do with the equities and the sole question in the case was whether or not the respondent had the legal title to the land. — Cheney v. Nathan, 110 Ala. 266. The court, therefore, erred in decreeing the equitable title in the appellee.

' Heard before Hon. L. I). Gardner. Bill by the town of Headland against W. S. Oates. From a decree in favor of complainant, defendant appeals. The detailed statement indulged in must be looked to to determine the equity of the bill rather than the form of statutory allegation. — Smith v. Gordon, 136 Ala. 498.

Heard before Hon. William Jackson. Action by Sudie Carroll against tbe city of Bessemer. From a judgment in favor of plaintiff, defendant appeals.

Heard before Hon. A. A. Coleman. Action by Samuel R. Posey for personal injuries received in the operation of an electric lighting plant, alleged to be owned and operated by defendant, the city of North Birmingham. From a judgment for defendant, plaintiff appeals. Under the Constitution of 1901, and Acts 1903, page 59, the municipality «'as authorized to own and operate and own an electric lighting plant. — Equitable Loan Go. v. Edioardstille, 38 South. 1016.

Heard, before Hon. Thomas W. Coleman, Ju. Action by Mrs. F. J. Lutz against the Pullman Palace Car Company, for damages for carrying ber beyond her destination, and putting her off after passing her destination. There was judgment for plaintiff in the sum of $1,000, from which defendant appeals. The court ivas in error in holding that it was the duty of the Pullman Company to notify the plaintiff of her arrival at her destination.

Heard before Hon. H. A. Shapre. Action by Kate Dickerson against the Birmingham Railway, Light & Power Company for injuries received in alighting from one of defendant’s cars. Judgment for plaintiff. Defendant appeals. There were two counts in the complaint. The first was for simple negligence, caused by the car being started, jerked, or its speed accelerated, while she was engaged in or about alighting therefrom.

Heard before Hon. C. C. Nesmith. Action by J. A. Stallings against the Birmingham Railway, Light & Power Company for forcibly, wrongfully, and unlawfully ejecting plaintiff from a car on which he had paid passage before he reached his destination.

Heard before Hon. Ti-iomas W. Coleman, Je. Action by Maude Wheeler against the Atlanta & Birmingham Air Line Railway. From a judgment for plaintiff, defendant appeals. Action for damages for personal injuries received while a passenger. Judgment for plaintiff in the sum of $880. The original complaint contained five counts.

Appear from Birmingham City Court. Heard before Hon. C. W. Ferguson. Action by Harry Turner against the Birmingham Railway, Light & Power Company for wrongfully ejectiug a passenger. From a judgment for plaintiff, defendant appeals. 'file nature and character of the action is sufficiently stated in the opinion.

Heard before Hon. C. \Y. Ferguson. Action by Benjamin Jaffee against the Birmingham Railway, Light & Rower Company. From a judgment for plaintiff, defendant appeals.

Heard before 1-Ion. 1). W. Speake. Action by Harry Lile against tbe Louisville & Nashville Bailroad Company for injuries received while in tlieir employment. From a judgment for plaintiff, defendant appeals. Tbe second count was abandoned. Tbe first, third, and fourth counts are sufficiently set out in the opinion.

Heard before Hon. John Pelham. Personal injury action by W. P. Reaves against the Anniston Knitting Mills, for injury to his minor child. From a judgment for defendant, plaintiff appeals.

Heard, before Hon. A. O. Lane. Personal injury action by Michael Kelly against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. This is the second appeal in this case. The former appeal will be found reported in 148 Ala. 143, 41 South. 870. The action was for damages for personal injury. The amended complaint consisted of seven counts.

Heard before Hon. W. W. Haralson. Action by Pat H. Heald, administrator, against the Alabama Consolidated Coal & Iron Company. From a judgment for plaintiff, defendant appeals. Heald as administrator brought action for damages for the death of his intestate by suffocation, etc., in the iron mine of defendant. On the 24th day of May, 1905, the plaintiff filed his summons and complaint in the office of the circuit clerk of Etowah county.

Heard before Hon. D. W. Separe. Action by Charles L. Townes against the Dallas Manufacturing Company. From a judgment for defendant, plaintiff appeals. The court should have permitted the proposed amendment. — Springfield F. & M... Ins. Oo. v. DeJarnctie, 111 Ala. 248; Ex parte Sullivan, 106 Ala. 80.

Heard before Hon. Charles A. Senn, Action by F. E. Brammer, by next friend, against L. G. Pettyjohn and others. From a judgment for defendants, plaintiff appeals. It is the duty of a master who knowingly employs a youthful and inexperienced servant and subjects him to the control of another servant to see that he is not employed in a more dangerous position than that for which he was employed, and to give such warning of his danger as his youth or inexperience demands. — Ala.

Heard before Hon. A. A. Coleman. Action' by R. A. S. Freeman against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff appeals. The 4th count as amended is in trespass and the statute of limitations of sis years is filed, and the court erred in overruled demurrer to the 11th plea in answer to it. — Gent, of Ga. Ry. Go. v. Freeman, 140 Ala. 581; Gity Del. Go. v. Henry, 139 Ala. 161; Lambie, et al. v. 8loss J. & 8. Go., 118 Ala. 428.

Heard before Hon. W. W. Haralson. Action by Alice H. George against A. W. Burns and others. From a judgment for plaintiff, defendants appeal.

<p>Appeal from Bibb Circuit Court.</p> <p>. Heard before Hon. B. M. Miller.</p> <p>Action by J. G. Hill and another against J. E. Kinard. Judgment for plaintiffs, and defendant appeals.</p> <p>Action by J. G. and O. D. Hill against J. E. Kinard to recover the statutory penalty for failure to enter satisfaction in full on the margin of the record of a mortgage after notice and payment. There was judgment for plaintiffs, and defendant appeals.</p> <p>The mortgage provided for the payment of the recording fee by the mortgagor. It was on land, and was recorded in two counties, the land being only in one county, and the mortgagee attempted to show that the recording fee in Bibb county had not been paid. Objection was sustained to this testimony. The mortgagee was permitted to show that the Tuscaloosa county recording fee had not been paid. The other facts are sufficiently stated in the opinion.</p> <p>The recording fee had not been paid and the mortgage provided that the mortgagor should pay such fee. — Smith v. Banks, 42 South. 551. The averment that no suit was pending to test the right of the mortgagee to the property as provided in section 1065, Code 1896, was material and should have been proven.</p>

Heard before Hon. A. A. Coleman. ■ Action by Marion W. Brock, administratrix, against Desmond & Co. and others. From a judgment for defendants Desmond & Co., plaintiff appeals. Desmond & Co. owned a certain storehouse and lot in Birmingham, Ala., which they rented to the Killan-Randle Product Company upon the terms and conditions as stated in the opinion of the court. The Killan-Randle Company sublet to plaintiff’s intestate a part of.the premises.

Heard before Hon. William Jackson. Action by M. L. Stennett against the city of Bessemer. From a judgment for defendant, plaintiff appeals. The court erred in permitting Bailey to be challenged for cause as a juror. — Thompson & Merc, on Juries, p. 170; Strong v. Sogswell, 28 111. 457; Commonwealth v. Boston R. R. Co. , 3 Cush. 25; Calhoun v. Hanna, 87 Ala 277 . Counsel discuss other questions but without citation of authority.

. Heard before Hon. L>. W. Speake. Action by W. H. McClellan against John Morris, Sr. Prom a judgment in favor of plaintiff, defendant appeals. W. H. McClellan sues John Morris, Sr., for assault and battery. The first count was in Code form for assault and battery.

Circuit Court. Heard before Hon. B. M. Miller. Action by James L. Strickland against W. M. Wedgeworth and others. Prom an order discontinuing the cause, plaintiff appeals. The appellant sued the appellees jointly for an assault and battery committed on him. When the case was called for trial, and the court had disposed of severol motion to strike and demurrers to the complaint, defendants all filed pleas to the complaint setting up a common defense.

Hoard before Hon. W. J. Pearce. Action by J. Q. Adams against the Western Union Telegraph Company. From a judgment for plaihtiif, defendant appeals. There can be no recovery in this case without the allegation and proof that the sender of the» message was the agent of the sendee in filing the mes-, sage.- — Banker v. W. U. Tel.

Appear from Autauga Circuit Court. Heard before Hon. S. L. Brewer. Action by Thomas R. Goodson against Irenus Stewart and others. From a judgment for defendants, plaintiff appeals. Every charge refused should have been given and the one given should have been refused. The plaintiff had povssession and title. The defendants were warned not to trespass. They had neither title nor possession.

<p> Garnishment. </p>

<p>Appeal from Tuscaloosa County Court.</p> <p>Heard before Hon. H. B. Foster.</p>

<p>Appeal from Tallapoose Circuit Court.</p> <p>Heard before Hon. S. L. Brewer.</p>