Volume 155 — Alabama Reports

Murder. Appeal from Blount Circuit Court. Heard before Hon. John W. Inzer. Walter Jones ivas convicted of manslaughter, and he appeals. Fairly and Bramlett were permitted to testify over the objection of defendant that the death of deceased was caused by a wound in the stomach produced by a pistol ball fired from the pistol of the defendant.

Murder. Appeal from Montgomery City Court Heard before Hon. W. H. Ti-iomas. John Washington, having been convicted of murder in the second degree and sentenced to imprisonment for 10 years, appeals. The exceptions to evidence are sufficiently stated in the opinion of the court. The following charges were refused to defendant: (1 and 2) The general affirmative charge.

Murder. Appeal from Gadsden City Court. Heard before Hon. Alto V. Lee. Daniel Mack Watson was indicted for the killing of Charles Ellenburg by shooting him with a pistol, was convicted of murder in the second degree, and was sentenced to the penitentiary for 20 years. From this judgment, he appeals. During the examination of the witness Ashford counsel for defendant asked if he was not then under indictment for assault with intent to murder.

Murder. Appeal from Covington Circuit Court. Heard before Hon. H. A. Pearce. Jack Stallworth, was convicted of murder, and appeals.

<p>1. Criminal haw; Continuance; Absence of Witness; Bight to Make Showing. — Although the law guarantees to a defendant the right to he confronted hy witnesses and to have compulsory process to secure their presence, it is not an abuse of the discretion of the trial court to refuse a continuance and to refuse to permit a showing for the absent witnesses where it appears that the witnesses were within the jurisdiction of the court, and that the court offered before putting defendant on trial to have compulsory process issued for their appearance at a subsequent day of the term, and to pass the case until such time, which offer the defendant declined to accept.</p> <p>2. Charge of Court; Instructions Misleading; Malice. — A charge asserting that the law recognizes no definite or fixed time for the formation of malice before the commission of murder, it being sufficient if it exists but a moment before the killing; and may be formed while the person is pressing the trigger of the pistol which causes the death (the court illustrating by pointing its finger as though 'pulling a trigger) while it may be misleading is not error to reversal.</p> <p>3. Same; Failure to ask Explanatory Charge. — One suffering from the effect of a misleading charge who fails to request a charge explanatory thereof cannot be heard to complain of the misleading tendencies of the charge objected to.</p> <p>4. Same; Instruction; Self Defense. — A charge asserting that if the jury believe that when defendant shot decedent, he believed he was in imminent peril of life or limb and the circumstances were such as to justify this belief in the mind of a reasonable man and that defendant was not the aggressor and could not retreat without increasing his danger then he could shoot to kill, pretermits freedom from fault in provoking the difficulty and is consequently erroneous.</p> <p>5. Same. — A charge asserting that if the jury believe from the evidence that defendant shot decedent under circumstances which would create a just apprehension in the mind of a reasonable man of imminent danger to his person, he might lawfully act upon appearances and kill his assailant, iii effect justifies the killing whether done in self defense or not, and is erroneous.</p>

Murder. Appear from Houston Circuit Court. Heard before Hon. H. A. Perace. Frank Fowler was convicted of murder in the second degree, and appeals. Defendant was indicted for murder in the first degree, and tried and convicted of murder in the second degree, and sentenced to the penitentiary for 40 years. The evidence to which exceptions are reserved are sufficiently stated in the opinion.

Murder. Appeal from Clarke Circuit Court. Heard before Hon. John T. Lackland. ■ From a conviction of murder Herman Wright appeals. There was not the slightest evidence tending to connect Allie Williams with the crime, and the several rulings of the court on this subject were proper. — Owing-soy v. The state, 82 Ala. 63; Tatum v. The State, 131 Ala 32.

Murder. Appeal from Walker Law and Equity Court. Heard before Hon. T. L. Sowell. Rad Poe was convicted of murder in the second- degree for killing Wood Simmons, and appeals. See 38 South. 1037. The facts are sufficiently stated in the opinion of the court. The questions asked the witness Hollinsworth, and noted in the opinion as 4, 5, and 6, related to a conversation between the defendant and two gentlemen who passed the witness a few minutes after the shooting was heard.

Murder. Appeal from DeKalb Circuit Court. Heard before Hon. W. W. Haralson. From a conviction of murder John Wright appeals. Counsel discuss various questions presented by the record with citations of authority but do not discuss the point decided.

Murder. Appeal from Jackson Circuit Court. Heard before Hon. W. W. Haralson. Tom Hays was charged with murder in the second degree, and appeals from a conviction of manslaughter in the first degree. Defendant was charged and tried for murder in lue second degree for killing Caesar Bradford by shooting him with a pistol, convicted, and sentenced to the penitentiary for six years.

Murder. Appeal from Gadsden City Court. Heard before Hon. John H. Disque. Lee Lawson was convicted of murder in the second degree for the killing of one McCollum by shooting him with a gun, and sentenced to the penitentiary for a term of 40 years. From this judgment he appeals.

Murder. Appeal from Morgan Circuit Court. Heard before Hon. D. W. Speake. Cliff Way was convicted of murder in the second degree, and he appeals. Cliff Way ivas indicted for the murder of one Jones, convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for a term of 13 years. The facts of the case, together with exceptions to evidence, are sufficiently stated in the opinoin of the court.

Murder. Appeal from Jefferson Criminal Court. Heard before Hon. Dan A. Greene. H. S. Robinson was convicted of manslaughter in the first degree, and he appeals. The court in his oral charge said to the jury.: No matter what a man’s peril may be, gentlemen of the jury, and how unable he may have been to retreat from that peril, if he voluntarily placed himself in the condition that brought about that peril, either by word or action of his, he cannot justify it.

Murder. Appeal from Colbert Circuit Court. Heard before Hon. C. P. Almon. Will Smith was convicted of murder, and he appeals, The defendant was indicted for murder, and bis punishment fixed at imprisonment in tbe penitentiary for life. When tbe drawing of tbe jury was commenced it was ascertained that- there was a mistake in tbe name of J. W. Allen, one of tbe special veniremen, and be was discarded, and tbe sheriff directed to summons another juror.

Assault and Battery. Appeal from Crenshaw Circuit Court. Heard before Hon. J. C. Richardson. H. Y. Brooke was convicted of assault and battery, and he appeals. Accused filed a plea of misnomer, setting up that bis name was “Hadley Y. Brooke/ ’ and not “Hodley Y. Brooke/’ as set forth in the indictment.

Assault and Battery. Appeal from Hale Í bounty Court. Heard before Hon. W. G. Christian , George Logan was convicted of assault and battery with a Aveapou, and lie appeals.

Rape. Appeal from Dallas Circuit Court. Heard before Hon. B. M. Miller. Prank Grifíiin Avas convicted of rape, and be appeals. Tbe court erred in sustaining objection to questions propounded by defendant to Florence Gardner. — McQuirlc v. The State, 84 Ala. 435. Tbe statement that I, obtained information that be was at a tenant’s bouse back near tbe swamp, was purely hearsay. — Amer. O. E. Go. v. Rycm, 20 South. 644.

Larceny. Appeal from Jefferson Criminal Court. Heard, before Hon. S. L. Weaver. Celia Tbomas was convicted of feloniously taking and carrying away from a dwelling bouse personal property of the value of more than $5, and she appeals.

<p>1. Criminal 'Law; Corpus Delicti; Proof. — The corpus delicti may be' established by circumstantial evidence affording, an inference that the crime has been committed, and its sufficiency is for the jury.</p> <p>2. Larceny; Evidence. — In the absence of proof that a way bill contained a list of the goods that were placed in the car at the place of shipment or that the bill of lading had ever been signed by any one, it-was error to permit it to be shown that the goods in the car were checked and found to be short by a comparison with the bill of lading or way bill.</p> <p>3. Same. — Where the charge was the taking of certain caddies of tobacco from a freight car, it was permissible to show that the defendant had in his hands a tobacco box while coming from the direction of the yard where the car was on the night of the alleged larceny; that he asked if anyone had seen him and told a witness that he would give her a dollar not to say anything about it; that defendant was seen with some boxes of tobacco on the same evening and that he placed them under a house where the same quantity and kind of tobacco were subsequently found, as incriminating circumstances.</p>

<p>1. Forgery; Subject; Tax Receipt. — A receipt for the payment of taxes is a subject of forgery under section 4720, Code 1896.</p> <p>2. Same; Indictment.- — An indictment charging that defendant, with intent to injure and defraud did alter a receipt for the payment of money substantially as follows, etc. (reciting a receipt for the payment of taxes) by inserting therein after the words “Assessor’s demand notice, 50c,” the words, “Poll tax $1.50,” and inserting after the word “Total,” where it last appears, “the figures $3.00,” etc., so as to change the receipt to show a payment of poll tax was a sufficient indictment under section 4720, Code 1896, and was in compliance with form 50 for indictments and sufficient.</p> <p>3. Evidence; Best and Secondary Evidence; Loss of Original. — Before secondary evidence is admissible to prove the contents of a writing alleged to be lost, it must be shown that every reasonable effort which would result in its production has been made without avail.</p> <p>4. Same; Search. — Where it appeared that the receipt was lost or misplaced' while the notes of testimony before the grand jury were either in the office of the testifying witness, or in the office of the clerk of the court, and that witness had made diligent search for the same in his office, but could not find the same, secondary evidence of the contents of the receipt was inadmissible in the absence of proof that the place where the notes were kept in the clerk’s office and from which they had been removed, had been searched and the receipt not found.</p>

<p>1. Witnesses; Competency; Impeachment; Conviction of Crime. — ■ Under section 1795, Code 1907, a witness who has been convicted of burglary and petit larceny is not incompetent to testify; such conviction is an impeachment of the witness and only affects his credibility.</p> <p>2. Same; Cross Examination. — On cross examination it is competent to inquire of a witness touching his conviction for crime; and his answers are subject to contradiction by other evidence under the express provision of section 1796, Code 1907.</p> <p>3. Criminal Law; Instructions; Impeachment of Witness. — A charge asserting that if any witness has been impeached the jury might disregard his testimony unless corroborated, is correct, and should he given at the reguest of defendant where a state’s witness had been impeached.</p> <p>4. Criminal Lam; Relevancy; Evidence. — Evidence as to whether a witness had gone before the grand jury before he bought the whis-ky or afterwards, was relevant and admissible to identify the time of the purchase and to show that the indictment was found within the year after the sale.</p>

Selling Liquor Without License. Appeal from Dallas Circuit Court. Heard before Hon. B. M. Miller. N. S. Smith was convicted of selling intoxicating liquor without a license as a retailer, and he appeals.

Selling or Giving Intoxicants to a Gonvict Appeal from Baldwin Circuit Court. Heard before Hon. Samuel B. Browne. Clem Askew was convicted of selling or giving intoxicating beverages to a convict, and he appeals.

Retailing Liquor Without License. Appeal from Monroe Circuit Court. Heard before Hon. John T.- Lackland. Will Abrams was convicted of selling iiquor contrary to the law, and he appeals. Defendant filed a plea of misnomer, setting up that his name was “Willis,” and not “Will,” Abrams.

Violating Nine O’Gloch Closing Law. Appeal from Mobile City Court. Heard before Hon. O. J. Semmes. Z. Frank Fourment was convicted of violating the liquor laws, and be applied for babeas curpus for bis discharge on the ground of the unconstitutionality of the law. From a judgment denying the writ, he appeals.

Trespass After Warning. Appeal from Bessemer City Court. Heard before Hon. William Jackson. Joe Morrison ivas convicted of a trespass after warning, and lie appeals. See 151 Ala. 115, 44 South. 150. The defendant ivas prosecuted for trespassing on the property of the Tennessee Coal, Iron & Bailway Company at Johns, in Jefferson county, Ala.

Trespass After Warning. Appeal from Lee Law and Equity Court. Heard before Hon. Albert E. Barnett. Henry Randle was convicted of trespass after warning, and be appeals.

Vagrancy. Appeal from the Jefferson Criminal Conrt. Heard before Hon. D. A. Greene, George Louis Thomas was convicted of vagrancy, and he appeals. The objection to testimony is sufficiently set out in the opinion. The facts tended to show that Thomas left his wife a few days before the birth of their child, without giving her any money or leaving any provisions in the house, and had never returned or in any way contributed to her support.

<p> Violating Contract. </p> <p>Appeal, from Wilcox Circuit Court.</p> <p>Heard before Hon. William H. Hawkins, Special Judge.</p> <p>John Campbell was convicted of an offense, and appeals.</p> <p>See 150 Ala. 70, 48 South. 743.</p> <p>Charge 8; refused to defendant, was as follows: “The court charges the jury that, unless they believe from the evidence that defendant had the’intention of defrauding his employer at the time he made the contract, it matters not what purpose or intention he afterwards formed, they could not convict him.”</p> <p>Under the evidence the defendant should not have been convicted. — • Riley v. The State, 94 Ala. 85. Tbe offense was barred. —Buhe v. The State, 76 Ala. 73. Tbe court should have sustained objections to remarks of counsel. — Ward v. The State, 39 South. 924; Neilson v. The State, 40 South. 221. Charge 2 should have been given as should the other charges. — Riley’s case, supra.</p> <p>The motion in arrest of judgment was probably overruled. — Walker v. The State, 91 Ala. 76; Thomas v. The State, 94 Ala. 74. The evidence clearly made out a prima facie case.- — State v. Thomas, 144 Ala. 77; State v. Vann, 43 South. 357. The charges were misleading and properly refused. — Whatley v. The State, 144 Ala.</p>

Adultery and Formication. Appeal from Jefferson Criminal C'onrt. Heard before Hon. Dan A. Greene. G. L. Thomas was convicted of living in adultery or fornication, and be appeals. What purports to be a bill of exceptions in the record, cannot be considered as it ivas not signed within the time allowed by law. — Wright v. The State, 136 Ala. 50.

Violating Game Law. Appeal from Bibb County Court. Heard before 1-Ion. W. L. Pratt. John Hyde was convicted of hunting on the lands of another without written permission, and appeals.

<p>Concealed Weapons; Evidence. — Where defendant ate his supper at a place other than the place where he was charged with carrying the weapon concealed, it was competent to show the apparel defendant wore at supper, and after leaving the place where he ate supper, on the question of concealment; hut it was immaterial as to whether or not a witness saw defendant have a weapon at supper.</p>

Habeas Corpus. Appeal from Baldwin Circuit Court. Heard before Hon. Samuel B. Browne. Petition by P. Y. Albright for a writ of habeas corpus. From an order granting tbe writ and discharging petitioner, the state appeals. Tbe petitioner was discharged on tbe idea that it was not necessary for him to be a qualified voter to bold the office of justice of the peace.

Writ of Error. Original petition in the Supreme Court. John Bennefield was convicted of selling liqnor without a license, and appealed. On reversal, the canse was remanded to the county court. The county court having been abolished pending the appeal, he petitions for a writ of error, etc. Petitioner was indicted in the county court of Cle-burne county for selling liquor without a license, and his case transferred to the circuit court of that county, under Loc.

Habeas Corpus. Appeal from Birmingham City Court. Heard before Hon. Charles A. Senn. Habeas corpus proceedings by W. H. Young, alias A. W. Young. From an order denying bis discharge, he appeals. No attempt was made to show that section 5278 of the Bevised Statutes of the United States was complied with before the issuance of the warrant by the Governor. The original warrant shows no offense and is void on its face. — Barrier v. The State, 142 Ala. 72.

<p>1. Municipal Corporations; Ordinances; Validity; Discrimination. —An ordinance which provides that no person shall sell junk or certain other second-hand goods or articles therein named without a certificate from the chief of police authorizing the sale and stating certain other matter of description; and that no person shall receive or buy such junk or goods without such certificate, except persons or corporations engaged in the manufacture of brass goods, pig iron, cast iron pipe, belting and mining or other cars, is not void as discriminating between those who may buy.</p> <p>2. Same; Violation; Prosecution; Evidence. — Where section 1 of the ordinance forbids' persons to sell or offer to sell certain goods without a certain certificate from the chief of police; and section 2 forbids the buying of such goods from one not having such certificate, it is not necessary to a conviction for a violation of such ordinance to prove that defendant had been guilty of violating both of said sections 1 and 2.</p>

'Violation of Municipal Ordinance. Appeal from Autauga Circuit Court. Heard before Hon. S. L. Brewer. L. V. Crum was convicted of retailing goods, wares and merchandise without having taken out a municipal license therefor, and he appeals.

Violating Municipal Ordinance. Appeal from Bessemer City Court. Heard before Hon. William Jackson. Proceeding by the city of Bessemer against Judge Smith. Judgment for defendant, and plaintiff appeals. Counsel discusses as-signments of error but does not discuss the point decided. Counsel discusses the assignments of error, but does not discuss the proposition decided in the opinion.

Petition to Gorreot Description of Lands Sold 6y order of Probate Court. Appeal from Mobile Probate Court. Heard before Hon. Price Williams, Jr. Petition by Rosalie Gomez against Florida Gomez and others, as heirs at law and administrator of Francisco Gomez, deceased. From a judgment sustaining demurrers to the petition, petitioner appeals.

Contest of the Probate of Will. Appeal from Mobile Probate Court. Heard before Hon. Price Williams, Jr, Application by George J. Sullivan, executor, for tlie probate of the will of Joseph Hastings. From a decree admitting the will to probate, Nannie McBride, contestant, appeals. George J. Sullivan filed for probate the will of Joseph Hastings.

Will Contest. Appeal from Jefferson Probate Court. Heard before Hon. Samuel E. Greene. Application by C. T. Rambow for the probate of the will of Prank Hodge, deceased, in which John Wesley Hodge and others appeared as contestants. From a decree admitting the will to probate, the contestants appeal.

Supersedeas to Quash Execution and Prevent Levy. Appeal from Monroe Circuit Court. Heard before Hon. John T. Lackland. Proceeding by John Eubanks against the state. From an adverse judgment, Eubanks appeals. The court was without jurisdiction to render a valid judgment by confession, and hence, the execution should have been quashed and supersedeas granted. — 64 Am. Dec. 506; 99 Am. Dec. 277. The court has full authority to vacate the judgment. — 5 Am. St. Rep. p. 448.

Petition for Restitution of Land. Appeal from Pike Circuit Court. Heard before Hon. H. A. Pearce. Petition by Isaac Culver against D. A. Baker for a restitution of lands. From a judgment dismissing the petition, petitioner appeals.

Trial of Right of Property. Appeal from Morgan Circuit Court. Heard before Hon. W. B. Francis, Special Judge. Statutory trial of the right of property by Emma S. Ringemann against Wiggs Bros. From a judgment for claimant, defendants appeal. The writ of attachment in this case is not void but may he amended so as to state a case coming under a different subdivision. — Dittman Boot & Shoe Go■. v. Mixon, 120 Ala. 206.

Heard before Hon. W. W. Haralson. Petition by S. S. Wilborn against the court of county commissioners of DeKalb county for certiorari to review the action of said court in establishing a stock law district. Prom a judgment declaring tbe establishment of said stock law district null and void, the court of county commissioners appeal.

Heard before Hon. John W. Inzer. Petition for certiorari by D. H. Brazeel to review the action of the commisioners’ court of Blount county in ordering an election under the stock law. From the judgment rendered, petitioner appeals. Petitioner bad sucb an interest as authorized certiorari to issue at bis instance. — Commissoiners’ Court v. Johnson, 145 Ala. 533.

<p>1. StocJc Law: Flection; Petition For— Sufficienou. — A petition siened bv eleven persons and addressed to the nudge of probate, and reciting that the, signers were bona fide resident citizens of that part of a certain precinct in a certain county not included in a stock law district, and that petitioners desired an election held in all that part of such precinct not included in the stock law district, to ascertain whether or not a majority of the voters of such precinct were for or against tile running at large of stock therein, and which petition prayed for the necessary orders for the holding of such an election, declaring the result, etc., it was sufficient to confer jurisdiction on the commissioner’s court to order an election.</p> <p>2. Same; Inspectors; Appointment. — Where the judge of probate appointed inspectors of elections, who held the election and certified the result, such inspectors were de facto officers, and the election held by them was not void, although the judge was without authority to appoint them.</p> <p>3. Certiorari; Median; Review; Record. — On certiorari to review the proceedings leading up to a stock law election, and the election, where it is not shown on the face of the record that the election was not held in that part of the precinct for which it was ordered, it will be presumed that it was so held, the court having no authority to look without the proceedings before the judges of probate to the statement of a petition subsequently filed seeking to have the election declared void, for the purpose of showing the election was not held in that portion of the precinct for which it was ordered.</p>

<p> Proceedings to Establish Public Road. </p> <p>Appeal from Jackson Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Proceedings before the court of county commissioners to establish a public road through the land of W. H. Gayle. From a judgment granting the road and assessing the owner’s damages, he appealed to the circuit court. On a trial de novo there was a judgment for the commissioner’s court, and assessing the owner’s damages, and he again appeals.</p> <p>The cause presented was a petition to establish a public road in Jackson county, passing through and across the land of W. H. Gayle. The commissioners granted the road and assessed Gayle’s damages at |40. The plaintiff offered to challenge the juror Cass for cause because of the fact that he had a case on the civil docket which was set down for trial during that week of the court, but which had been passed to the succeeding week. The defendant, Gayle, objected to the challenge of said juror for cause, which objection was oyer-ruled. The plaintiff was permitted to show by the defendant, Gayle, on cross-examination, that he gave in his whole land for taxes at $1,000. The plaintiff also offered the tax assessment book for the county, and the defendant objected, because it was irrelevant and immaterial. There was judgment for the commissioners’ court, and the damage to the land was assessed at $25.</p> <p>Counsel discuss assignment of error but without citation of authority.</p> <p>The court’s action in reference to the juror’s case is without error or injury. —Tatum v. Young, 1 Port. 298; Adams v. Oliver, 48 Ala. 551; Sec. 5020, Code 1896.</p>

<p> Motion to Require Administrator to Account for Money. </p> <p>Appeal from Montgomery Probate Court.</p> <p>Heard before Hon. J. B. Gaston.</p> <p>Proceedings by A. W. Blue against M. W. Blue, administrator, to charge defendant with a sum of money as belonging to the state. Prom a judgment, for’ defendant, both parties appeal.</p> <p>In order for tbe statute of limitations to be effective it must be specially pleaded. — Himtsville v. Ewing, 116 Ala. 576; Bowling v. Jones, 67 Ala. 508; Buss’ Case, 66 Ala. 472. Unless specially pleaded, it is waived. — Garrison v. Lumber Oo\, 111 Ala. 211. Where a debtor of an intestate has letters of administration issued to him, the debt becomes assets in his hands rendering him and his sureties liable. ■ — Hampton v. Sheehan, 7 Ala. 298; Wright v. Lang, 66 Ala. 386; Miller v. Irby, 53 Ala. 477; Sewell v. Buckley, 54 Ala. 592; Modawell v. Hudson, 57 Ala. 75; Arnold v. Arnold, 124 Ala. 552; Cook v. Cook, 96 Ala. 294. A gift is not an advancement. — Terry v. Keyton, 58 Ala. 657; Fennell v. Henry, 70' Ala. .484; Malone v. Malone, 106 Ala. 567. The burden is on the party asserting it.— Boothe v. Foster, 111 Ala. 312.</p> <p>Under the facts in this case the presumption is that if the money was received by M. W. Blue for his own benefit, that it was a gift or an advancement and not a debt. — Fennell v. Henry, 70 Ala. 484; Robinson v. Mosely, 93 Ala. 76; Boothe v. Foster, 111 Ala. 316; Merrill v. Rhodes, 37 Ala. 449; Clements v. Hood, 57 Ala. 463. Counsel discuss cross assignment of error and cite authorities in support thereof.</p>

Petition for Exemption of Personal Property. Appeal from Mobile Probate Court. Heard before Hon. Price Williams, , Jr. Petition by Lorena B. Martin and others to set aside for the use of herself and minor children $1,000 from the proceeds of a life insurance policy on the life of her deceased husband, to which James A. McLean, as executor, and others, filed objections. From an order granting the relief prayed, objectors appeal.

New Trial. Appeal from Jefferson Circuit Court. Heard before Hon. A. A. Coleman. Action by H. L. Badliam against N. L. S. Lunsford. Judgment rendered for plaintiff on a verdict, and a motion to set aside the judgment was granted. From a judgment on the motion, plaintiff appeals. A proper showing fon neiv trial on account of mistake or surprise was not made. — Hoskins v. High, 11 South. 253.

Mandamus. Appeal from Bessemer City Court. Heard before Hon. William Jackson. Mandamus by the state, on the relation of Ales. Cross, against S. J. Tillman, as justice of the peace. Judgment for relator, and respondent appeals. The Himes Supply Company sued Alex. Cross before one S. J. Tillman, a justice of the peace, and procured garnishment to issue to the Woodward Iron Company. The garnishee answered, admitting an indebtedness of $12 due by them to Alex.

Proceedings to Quiet Title. Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Suit to quiet title between Garland G. Stallworth and others and O. H. Brown and others. Issues having been certified by the chancery court to the circuit court for jury trial, Stallworth and others appeal from the verdict and from an order of tbe circuit court certifying tbe verdict to tbe chancery court, and appellees move to dismiss tbe appeal.

Partition. Appeal from Henry Probate Court. Heard before Hon. Dan Gordon. Partition by George L. Campbell against J. F. Layton. From a judgment for plaintiff, defendant appeals. An adverse claim is sufficient to oust the jurisdiction of tbe probate court in partition proceedings. — Section 3178, Code 1896; Hillans v. Brinsfiekl, 108 Ala. 105; Mitchell v. Mitchell, 101 Ala. 183; Goree v. Dickerson, 89 Ala. 363; Dial v. Reynolds, 96 IT. S. 340.

<p> Mandamus. </p> <p>Original petition in the Supreme Court.</p> <p>Original application on the part of the city of Mobile for mandamus to compel Hon. T. H. Smith, Chancellor, to recuse himself because of his disqualification to determine a petition filed by Z. M. P. Inge, Trustee, in reference to certain bonded indebtedness of the city, and other matters which appear from the opinion.</p> <p>The chancellor against whom relief is sought is a-first cousin to the trustee and the attorney for the trustee and is incompetent to act on the petition filed in his court by them in the chancery court of Mobile. — Sec. 2637, Code 1896; Groolc v. New-borg, 124 Ala. 478; Moses v. Julian, 84 Am. Dec. 114; State ew rel. Smith v. Pitts, 189 Ala. 152. The Acts of Dec. 13, 1898, and Jan. 27,1899, are unconstitutional. The legislature cannot usurp the judicial powers by excepting one case or one party from the operation of a general rule of law, either as to the right or the remedy. —6 A. & E. Ency. of Law, 1044; Boggs’ App., 82 Am. Dec. 583 and note; Holden v. James, 6 Am. Dec. 174; Guy v. Hermanee, 63 Am. Dec. 85; S. & N. A. R. R. Go. v. Morris, 65 Ala. 193; Jones v. Jones, 95 Ala. 450; Clark v. Jack, 60 Ala. 271.</p> <p>The petition is based upon two grounds. First, the relationship between the chancellor and the trustee and his attorney. Second, because the chancellor was of counsel for the trustee before his election as chancellor. On the second proposition counsel cite. — 23 Cyc. 592; Collins v. Ham-mack, 59 Ala. 452; Trawick v. Trawick, 67 Ala. 273 ; Freeman on Judgments, Sec. 145; 12 Ark. 190!; 52 Ind. 51; 89 Mass. 385; 16 Wis. 553; 43 Ark. 33; 37 N. H. 340; 10 Wend. 167; 42 Penn. 557. As to the first proposition counsel cite. — 16 Ark. 196; 20 Minn. 313; 5 Paige, 486; 9 Paige 202; 69 Hun. 365; 25 Pac. 985; 52 Mich. 214; 108 Mich. 622.</p>

<p>1. Adverse Possession; Against the Government. — There can be no adverse possession against the United States.</p> <p>2. Same; Elements. — To constitute adverse possession there must he claim of title and possession continuous, open and notorious, for the time prescribed by law.</p> <p>3. Ejectment; Issues; Judgment. — Where there was a disclaimer entered and confessed to all of the land except that covered by a schoolhouse, and a plea of not guilty as to that, and the evidence showed that the only title which defendant claimed was in and to the building and not to the land on which it is situated, a judgment should have been directed for the plaintiff.</p>

Ejectment. Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Ejectment by T. W. Sims and others against the Mobile, Jackson & Kansas City Railroad Company. From a judgment for defendant, plaintiffs appeal.

Ejectment. Appeal from Randolph Circuit Court. Heard before Hon. S. L. Brewer. Action by William F. Knight and others against R. H. M. Hunter and others. From a judgment for defendants, plaintiffs appeal. Ejectment for 120 acres of land. The plaintiffs sue as heirs at law of William H. Wood, deceased, while defendants claim under one R. S. M. Hunter. The facts are sufficiently stated in the opinion of the court.

Ejectment. Appeal from. Jefferson Circuit Court. Heard before Hon. A. A. Coleman. Action by Sidney Hart against Amelia Stodenmyer for the recovery of land. Judgment for plaintiff and defendant appeals. The court erred in overruling defendant’s objection to the foreclosure deed. Powers of attorney are strictly construed. — Deering v. Lightfoot, 16 Ala. 28; Cummins v. Beaumont, 78 Ala. 204.

<p> Ejectment. </p> <p>Appeal from Cherokee Circuit Court.</p> <p>■Heard before Hon. W. W. Haralson.</p> <p>Ejectment by the Alabama State Land Company against Richard McCullough and others; defendants McCullough and Mobb’s plea of disclaimer being confessed. From a judgment for defendant Hill, plaintiff appeals.</p> <p>The defendants McCullough and Mobb interposed a plea of disclaimer, which was confessed. The defendant Hill-disclaimed as to part of the land and interposed a plea of not guilty as to others. It was admitted that, unless the patent from the government to Emery Sharp covered the land sued for, plaintiff succeeded by mesne conveyances to the title to the land sued for, which vested in the state of Alabama under the acts of Congress granting lands to the state in aid of the construction of railroads. The bill of exceptions does not disclose what alterations were made in the description of the land as conveyed by the patent, but states that the plaintiff objected to its introduction on the ground that it appeared upon its face that alterations therein had been made in the descriptions of the land covered by the patent. It was shown that the patent was found in the possession of one Henderson, deceased, at the time of his death in the year 1895, and that it was then in the same condition as at present, and no alteration had been made since then. Upon this showing the court admitted the patent, so far as to submit to the jury the question as to whether it had been so altered as to change the description. The evidence as adverse possession sufficiently appears in the opinion. The plaintiff requested the following charge, which was refused: “I charge you, gentlemen of the jury, that there is no evidence of adverse possession for 10 years before the commencement of this suit.”</p> <p>The court erred in allowing- the witness McCullough to testify as to Henderson cutting timber from the land. — Term G. I. & lilt. Go. v. Lynn, 123 Ala. 138; Woods v. Montevallo G. & T. Go. 84 Ala. 564; Humes v. O’Brien, 74 Ala. 81. The court erred in the admission of Scott’s testimony; title cannot be shown that way. — Goodson v. Brothers, 111 Ala. 589. The court erred in admitting- Sharp’s patent in evidence. There was no adverse possession shown in this case as no declaration was filed as required by section 1541, Code 1896.</p> <p>It is not necessary that claim of title should be good or even thought to be good. — A. & E. Ency of Law, 286. Notoriety of possession may be shown by testimony that the land was known as H’s land. — 1 Oyc. 1148; Maxwell v. Dawson, 151 U. S. 586. Under the facts in this case Hill could defeat plaintiff’s recovery by showing an outstanding title in a third person without connecting himself with it. — Lucy v. T. c§ (7. 77. R. Go. 92 Ala. 249; Beard v. Ryan, 78 Ala. 37.</p>

Unlawful Detainer. Appeal from Shelby Circuit Court. Heard before Hon. John Pelham. Action by the Cray Eagle Coal Company against George Ross. From a judgment for plaintiff, defendant appeals. The court erred in rendering judgment for the plaintiff. A notice to quit for failure to pay rent is not sufficient to determine the bolding if it requires the tenant to deliver the premises forthwith. — Oakes v. Monroe, 8 Cush. 282.

Detinue. Appeal from Jefferson Circuit Court. Heard before Hon. A. 0. Lane. Detinue by tbe Jebeles & Colias Confectionery Company against Joe Kabase for a soda fountain and fixtures. Judgment for plaintiff, and defendant appeals.

Detinue. Appeal from Geneva Circuit Court. Heard before Hon. H. A. Pearce. Action by the Faircloth-Segrest Company against S. C. Ketchum. Judgment for plaintiff, and defendant appeals. In removal of disabilities of nonage, the chancery court acts in accordance with the statute and is bound by their provisions.— Cox v. J ohnson, 80 Ala. 22.

Detinue. Appeal from Geneva Circuit Court. Heard before Hon. H. A. Pearce. Detinue by E. E. Forbes Piano Company against R. F. McKimmie, to recover a piano sold by plaintiff to> one Pelbam under a contract retaining’ title in the seller until the purchase price is fully paid. The piano was sold by Pelham to the present appellant. There was judgment for plaintiff and defendant appeals.

Assumpsit. Appeal from Marshall Circuit Court. Heard before Hou. W. W. Haralson. Action by John H. Wood against the Nashville, Chattanooga & St. Louis Railway. From a judgment for plaintiff, defendant appeals. No contract of sale is shown. — Shelley v. Edwards, .73 Ala. 175; Butler v. Kemmeran, 67 Atl. 332. Under the evidence, there can be no recovery on the contract alleged, as there is a fatal variance.

Action on Insurance Policy. Appeal from Bessemer City Court. Heard before Hon. Williams Jackson. Action by Mary Prances Batson against tbe Fidelity Mntnal Life Insurance Company upon a life insurance policy. From a judgment for defendant plaintiff appeals. Tbe 4th plea alleges conditions reserved for tbe benefit of tbe defendant of wbicb it could take advantage or waive. — U. S. L. Ins. Co. v. Lesser, 126 Ala. 580 ■, Washburn v. U. G. L. Ins.

Assumpsit. Appeal from Montgomery City Court. Heard before Hon. A. D. Sayre. Assumpsit by Alexander Troy, as surviving partner against Charles W. Haden, for an attorney’s fee. Judgment for plaintiff and defendant appeals.

<p>Bills of Exceptions; Timie of Signing; Extension. — On August 27, 1907, the court granted 60 days from the adjournment of the court within which to have a bill of exceptions signed. .On the 20th of November, the judge signed an order extending the time for said signing. It does not appear when the court adjourned, or that the second order was made within the 60 days after the adjournment of the court, or before the expiration of the time previously given. Held, as it cannot be presumed that the court continued in session until September 20, the latter order was void and the bill of exceptions was not signed within the time allowed.</p>

Assumpsit. Appeal from Coffee County Court. Heard before Hon. H. H. Blackman. Assumpsit by Tup Simmons against Marion Larkins.. From a judgment for plaintiff defendant appeals. Counsel cite the Act creating and amending the county court of Coffee County and insist that it is unconstitutional. The first Act was held valid and constitutional in the case of Wilson v. The State, 136 Ala.

Heard before Hon. W. W. Haralson. Action by C. M. Hontoon, against W. O. Moody to enforce the award of arbitrators. Judgment for plaintiff and defendant appeals. The suit was brought outside ¡of 'defendant’s residence and should be dismissed. — Sec. 2669, Code 1896. The court erred in giving the affirmative charge for the plaintiff. — Hogan v. Daughclrill, 51 Ala. 312; Broton v. Mise, 119 Ala. 17. Counsel discusses assignments of error but without citation of authority.

Heard before Hon. O. J. Semmes. Action by Charles Worthington against Prank B. Merrill. Prom a judgment for plaintiff, defendant appeals. The court erred in overruling defendant’s demurrer to plaintiff’s replication to the second plea. It was a departure. Stephen on Pleading, Section VI, Rule 1, * p. 410 (8th Am. Ed.) jChitty on Pleading, * p. 674 (the 2nd qualification of a replication) 16th Am.

Heard before Hon. W. W. Haralson. Action in assumpsit by W. A. Smith against the Alabama Iron Company. Judgment for plaintiff, and defendant appeals.

Assumpsit. Appeal from St. C'lair Circuit Court. Heard before Hon. John W. Inzer. Action by Maddox & Adams against the Birmingham & Atlantic Bailroad Company. Judgment for plaintiff, and defendant appeals. The evidence tended to show that plaintiff shipped from Cropwell, Ala., to O. B. Sims, at Benfroe, Ala., 50,-000 shingles 5x16 inches, deadhead, and that C. B. Sims was the agent of defendant at Benfroe, Ala.

Arbitration and Award. Appeal from Coosa Circuit Court. Heard before Hon. S. L. Brewer. Arbitration between J. J. Gandy and T. J. Tippett. From a judgment on an award, Gandy appeals. Tbe judgment is void and cannot be enforced in a court of law. — 69 Ala. 232; 57 Ala. 209; 16 Ala. 828; 3 Port. 440; Minor 5.

Assumpsit. Appeal from Mobile Law and Equity Court. Heard before Hon. Sapfold Berney. Action on an account stated by Maxwell & Delbomme against Terry L. Moore. From a judgment for plaintiffs, defendant appeals. When a witness testifies to a fact as of bis own knowledge and then states facts that show his testimony is hearsay, his testimony should he stricken out on motion. — 9 Ency. of Evi. 36; 11 A. & E. Ency. of Law, 520.

Damage for Failure to Deliver Goods. Appeal form Jefferson Circuit Court. Heard before Hou. A. O. Lane. Action by Clara D. Gibbs against the Southern Express Company. Judgment for plaintiff, and defendant appeals.

Damages for Injury to Stock on Track. Appeal from Maclison Circuit Court. Heard before Hon. D. W. Speak®. Action by W. F. Garth against the Nashville, Chattanooga & St. Louis Railway. From a judgment for plaintiff, defendant appeals. The pleadings and the facts are sufficiently stated in the opinion of the court.

Damage for Delay in Delivery of Goods. Appeal from Houston Circuit Court. Heard before Hon. H. A. Pearce. Action by J. M. Pilcber and another against the Central of Ga. Ry. Co. for delay in the delivery of goods. From a judgment for plaintiff for $1, plaintiff appeals.

Damages for Killing Mule. Appeal from Montgomery City Court. Heard before Hon A. D. .Sayre. Action by W. F. Vandiver & Co., against tbe Black-Laird Company, Limited, and tbe city council of Montgomery, for loss of a mnle. Judgment for plaintiff Defendants appeal.

Damages for Death of Passenger. Appeal from Tallapoosa Circuit Court. Heard before Hon. A. H. Alston. Action by H. M. Carleton, as administrator, etc., against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff appeals. The case made for plaintiff is sufficiently stated in the opinion of the court.

Damages for Injury to Passenger. Appeal from Birmingham City Court. Heard before Hon. H. A. Sharpe. Action by Ann D. Church against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals.

Damages for Failure to Take on Passengers. Appeal from Conecuh Circuit Court. Heard before Hon. J. C. Richardson. Action by M. A. Malcolm against the Louisville & Nashville Railroad Company for a negligent failure to stop a train and take him as a passenger to the destination for which his ticket called. There was judgment for plaintiff in the sum of 34 cents, the price paid for the ticket, and he appeals. The complaint stated an action ex delicto. — Southern Ry.

Damages for Injury to Passenger. Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Personal injury action by M. V. Haggard against tbe Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals.

Damages for Injury to Passenger. Appeal from Etowah Circuit Court. Heard before Hou. John W. Inzer. Action by Perryman Bates against the Alabama City, Gadsden & Attalla Railway Company. From a judgment for plaintiff, defendant appeals. Action for damages for injuries received in an alleged attempt to take passage on one of defendant’s electric cars. Judgment for plaintiff in the sum of ¡¡¡>4,000. For the pleadings and facts in this case, see 149 Ala. 489, 43 South. 98.

Action for Damages for Injury to Passenger. Appeal from Birmingham City Court. Heard, before Hon. H. A. Sharpe. Action by Ed Kendrick, by his next friend, against the Birmingham Southern Bailroad Company for damages for injury received while crossing the track. From a judgment for plaintiff in the sum of $750, defendant appeals.

Damages for Ejection of Passenger. Appeal from Birmingham City Court. Heard before Hon. C. C. Nesmith. Action by C. M. Yielding against the Birmingham Railway, Light & Power Company for damages for being ejected from defendant’s car. • From a judgment for plaintiff, defendant appeals.

Damages for Death of Employe. Appeal from Etowah. Circuit Court. Heard before Hon. W. W. Haralson. Action by J. T. Bryant against the Alabama Great Southern Railroad Company to recover damages for the death of plaintiff’s intestate while in defendant’s •employment. From a judgment for defendant, sustaining demurrers to certain counts of the complaint, plaintiff appeals. Action for damages for death of intestate, an employe of the Alabama Great Southern Railroad.

<p>1. Master mid Servant; Injury to Servant; Superintendent; Relationship; Materiality. — Under subdivision 2, section 3910, Code 1907, it is not essential to an employer’s liability for a negligent injury to the employe that any relation existed at the time of the injury between the servant injured and the alleged negligent superintendent.</p> <p>2. Same; Complaint; Sufficiency. — A complaint which avers that complainant’s injury was caused by the negligence of one while in the exercise of superintendence intrusted to him by the master, and that it consisted in allowing work to be performed in a manner dangerous to the employe’s safety, whereby a rock was rolled down from a place above plaintiff’s place of work, is not demurrable for a failure to make out by allegations of fact negligence on the superintendent’s part.</p> <p>3. Same. — If the superintendent of an employer negligently permits work to be done in a manner dangerous to a servant to whom the employer and superintendent owed the duty of using ordinary care, tlie employer - becomes liable to tbe servant for tbe injury ultimately resulting; tbe superintendent is bound in tbe same degree-as bis employer to conserve tbe servant’s safety and an employer is bound to use reasonable care to know when tbe work is being performed in a negligent manner to tbe danger of bis servants.</p>

Action by Parent for Injury to Minor Child. Appeal from Birmingham City Court. Heard before Hon. C. C. Nesmith. Action by John B. Jones against the Warrior- Manufacturing Company. Judgment for plaintiff, and defendant appeals. Tbe second, count was without tbe lis pendens. — Mar-bury Lbr. do. v. Westbrook, 121 Ala. 179; 1st Nat. BcmiJc v. Nelson, 139 Ala. 578.

Action for Damages for Injury to Employe. Appeal from Birmingham City Court. Heard before Hon. C. C. Nesmith. Action by Squire Thomas Yail against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. For the count on which this case was tried, the demurrers thereto, and the salient facts reference is made to the former report of the case. — A. G. S. R. Go. v. Vail, 142 Ala. 134, 38 South. 124, 110 Am. St. Rep. 23.

Damages for Assault and Battery. Appeal from Barbour Circuit Court. Heard before Hon. A. A. Evans. Action by George H. Wilde against L. E. Irby for damages for assault and battery. From a judgment for plaintiff, defendant appeals. The testimony objected to, and made the basis of the first assignment of error, ivas that of E. L. Davis, who was permitted to testify as to statements by the defendant as to what he did to the plaintiff on the day of the difficulty.

<p> Damages for An Assault ancl Battery. </p> <p>Appeal from Marshall Circuit Court.</p> <p>Heard before Hon. W. W. Haralson. .</p> <p>Action for assault and battery by C. C. Mize against Benjamin D. Abney and another. Prom a judgment for plaintiff, defendant appeal.</p> <p>The defendants interposed several special pleas; 2, 8,. 4, and 5 being pleas of justification and pleas of self-defense, setting forth the ingredients thereof. To these-pleas the plaintiff replied as follows: “The defendants, committed the assault and battery in said complaint mentioned to a greater extent and degree and with more force than was reasonably necessary for the purpose-in the pleas mentioned.” To this replication defendants filed the following demurrers: “(1) The replication is but the averment of a conclusion. (2) It is not averred that the force employed by defendants was greater than was reasonably necessary. (3) It is not averred that the force employed by defendants was-oreater than reasonably appeared to them at the time-to be necessary.”</p> <p>The evidence for plaintiffs tended to show that the difficulty began in a cornfield, about 20 or 30 steps-from the road where plaintiff was gathering corn, and that defendants came up the road, one riding and the other walking, when some words were had about plaintiff getting out of the cornfield, and some epithets were used on either side; that Dee Abney came into the field and motioned as if to throw something, when the plaintiff threw a rock at Dee Abney, but missed him; and plaintiff then went out iuto the road, when Dee Abney threw a rock at him and broke plaintiff’s arm. Ben Abney then got down off his horse, nntied his pistol, and came inside the field, and told plaintiff’s son to throw down his rock and hold np his hands. The evidence for defendants tended to show an assault by plaintiff, with self-defense on the part of defendants.</p> <p>The following charges were refused to defendant: “(1) If plaintiff provoked and brought on the difficulty, he cannot recover punitive damages. (2) If plaintiff provoked or brought on the difficulty, and it would not have occurred but for this wrongful conduct of the plaintiff, then he cannot recover. * * * (I) If the plaintiff provoked the difficulty, and if at the time Dee Abney assaulted plaintiff the circumstances were such as to create and did create in Dee Abney’s mind the reasonable and bona fide belief that plaintiff was about to do him grievous bodily injury, and the further reasonable and bona fide belief that he could not flee without increasing his danger, then there can be no recovery by the plaintiff.”</p> <p>The following charge was given at the instance of the plaintiff: “(A) The court charges the jury that if Ben Abney aided, abetted, or encouraged Dee Abney in entering into or continuing an unlawful assault on plainttiff, then he would be responsible for whatever Dee Abney did in the furtherance of such assault, notwithstanding that he may not have explicitly encouraged, aided, or abetted any one particular act of defendant Dee Abney.”</p> <p>The court erred in overruling the demurrer to plaintiff’s replication to defendant’s pleas. — Rogers v. The State, 62 Ala. 170; Stovall v. The State 116 Ala. 454; Kirhy v. The State, 89 Ala. 65. Counsel discuss other assignments of error but without citation of authority.</p> <p>Replications were sufficient. — 2 Chitty’s Pleading, (16th Ed.) 698. Charges requested by defendant were properly refused. — Mitchell v. Gamble, 140 Ala. 316; 141 Ala. 506. Self defense must be specially pleaded. — 98 Ala. 316; 71 Ala. 48; 69 Ala. 494; 29 Ala. 635. This was a case for punitive damages. — 1 Sutherland on Damages, 95; 2 lb. sec. 393.</p>

Action on Official Bond of Justice of Peace. Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Action by John W. Smith against W. B. Roebuck and others. From a judgment for plaintiff, defendants appeal.

Action on Detinue Bond. Appeal from Coosa Circuit Court. Heard before Hon. S. L. Brewer. Suit by J. A. Williams and others against Andy Finch and others on a detinue bond. From a judgment for _ defendants plaintiffs appeal. The making of a replevy bond and loss of time therein is a proper element of damage recoverable in an action of this character. — Miller v. Garrett, 35 Ala. 96.

Damages for Breach of Covenant in Contract of Lease. Appeal from Jefferson Circuit Court. Heard, before Hon. A. O. Lane. Action by Peter Paris against James F. Johnston. From a judgment for defendant, plaintiff appeals. .

Breach of Warranty of Sale. Appeal from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Action by John Thompson against John W. O’Neil & Co. Judgment for defendant on demurrer, and plaintiff appeals. It was not necessary to the maintenance of this suit that the range should do all three of these things guaranteed for it.

Libel and Slander. Appeal from Mobile Circuit Court. Heard- before Hon. Samuel B. Browne. Action by William R. Roberts against tbe English Mfg. Co., for libel. From a judgment for defendant plaintiff appeals. The letter should have been admitted, and its contents shown.— 2 Greenleaf on Evid. (16th Ed.) 416;WMle v. Tolliver, 110 Ala. 308.

Damage for Trespass of Stooh. Appeal from Gadsden, City Court. Heard before Hon. John H. Disque. Action by L. W. Bramlett against Sid Thornton for damages done by a cow to the land and crops within a district in which stock is prohibited from running at large. From a judgment for plaintiff, defendant appeals.

Damages for Injuries From Defective Street. Appeal from Montgomery City Court. Heard before Hon. A. D. Sayre. Action by J. C. Comer against the city council of Montgomery. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion of the court.

Damages to Land by Excmation. Apeal from Houston Circuit Court. Heard before Hon. H. A. Pearce. Action by Porter & Newton against the Enterprise Lumber Company íor damages to adjacent property from excavation and occupation of a street for railroad purposes. From a judgment for plaintiff, defendant' appeals. The facts ancl the objections and exceptions to testimony are sufficiently set out in the opinion of the court.

Trover and Conversion. Appeal from DeKalb Circuit Court. Heard before Hon. W. W. Haralson. Trover by the Alabama State Laud Company against A. J. Craze. From a judgment for plaintiff, defendant appeals. Trover by the Alabama State Land Company against A. J. Craze for the cutting of 423 logs from lands belonging to the plaintiff; (2) for 125,000 feet of lumber, the property of the plaintiff; and (3) trespass upon certain lands by going upon and cutting timber thereupon.

Damages for Plotting Refuse on Land. Appeal from Birmingham City Court. Heard before Hon. Charles A. Senn. Action by Auguste Roussell against the Tennessee Coal. Iron.& Railroad Company for damages to real estate, due to refuse matter thrown into a stream from defendant’s coal washer and coal mine, and carried by the stream and deposited on plaintiff’s land. Judgment for plaintiff for $275, and defendant appeals.

Bill tó Prevent Diversion of Property From The XJse For Which It Was Dedicated. Appeal from Jackson Chancery Court. Heard before Hon. W. H. Simpson. Held: occupied, and used.tbe same as free school property until within the last six months.

Bill to Enforce Trust or for Specific Performmice. Appeal from Cherokee Chancery Court. Heard before Hon. W. W. Whiteside. Bill by W. J. Mitchell against G. W. Wright to compel the execution of a deed to complainant, Decree for respondent on demurrer, and complainant appeals.

Bill to Enjom Use of Premises After Termination of Lease. Appeal from Covington Chancery Court. Heard before Hon. L. D. Gardner. Bill by Florala Sawmill Company and others against J. T. Parrish and others. From a decree dissolving an injunction, complainants appeal.

Bill to Enjoin Taking of Oysters. Appeal from Mobile Chancery Court. Heard, before Hon. Thomas H. Smith. Bill by Peter F. Alba against Jolm O. Cleveland and wife to enjoin the taking of oysters ont of a bed fronting complainant’s land. From a decree overruling demurrers to the bill, and refusing to dismiss the bill for want of equity, defendants appeal.

Bill to Set Aside Conveyances as Fraud on Creditors. Appeal, from Houston Chancery Court. Heard before Hon. W. L. Park. Bill by tlie Lamar-Rankin Drug Company against H. C. Jones, and others to set aside certain mortgages. From .a decree dismissing tlie bill, defendants appeal. The bill is filed under section 2156, Code 1896. The chancellor erred in sustaining the 9th and 10th ground of demurrer. — Henderson v. Farley Nat.

Injunction to Prevent Issue of City Bonds. Appeal from Tuscaloosa County Court. Heard, before Hon. H. B. Foster. Bill by W. A. Ryan, a tax payer, against tbe mayor and' aldermen of tbe city of Tuscaloosa to prevent tbe issue of bonds of tbe city for tbe purpose of constructing or buying, or both, a water works system. From a decree for defendant plaintiff appeals.

Bill to Enjoin Foreclosure of Mortgage Under Power. Gross Bill For Foreclosure. Appeal from Jefferson Chancery Court. Heard before Hon. Alfred H. Benners. Bill by James Nelms and another against Joe Rogers; respondent filing a cross-bill. From a decree dismissing the bill and granting relief on the cross-bill, complainants appeal.

Bill to Abate a Public Nuisance. Appeal from Birmingham City Court. Heard, before Hon. A. A. Shapre. Bill by the state, on relation of the Attorney General, against the Alabama Western Railroad Company. From a decree overruling the motion to dismiss the bill for want of equity, defendant appeals.

Bill for Removal of Estate from Probate to Ghanoery Goivrt, and for Other Purposes. Appeal from Lee Chancery Court. ' Heard before Hon. W. W. Whiteside. Action by Effie B. Tillery against Thomas J. Tillery, as administrator of the estate of John C. Tillery, deceased, and another. From a decree overruling a demurrer to the bill, defendants appeal.

Bill to Cancel Mortgage, and for a Redemption. Appeal from Conecuh Chancery Court. Heard before Hon. W. L. Parks. Bill by A. P. J. Drake and others against R. M. Rhodes, for the cancellation of a mortgage and for a redemption or to declare the attempted foreclosure of the mortgage invalid. From a decree dismissing the bill complainants appeal.

<p> Bill to Quit Title. </p> <p>Appeal from Jefferson Chancery Conrt.</p> <p>Heard before Hon. Alfred H. Benners.</p> <p>Bill by E. C. Crow against the King Lumber Company to quiet title to certain lands. There was decree for complainant and respondent appeals.</p>

Bill to Abate Private Nuisance. Appeal from Montgomery City Court. Heard before Hon. A. D. Sayre. Bill by the Louisville & Nashville Railroad Company against D. P. West. Decree for complainant, and defendant appeals. Counsel discuss assignments of error but without citation of authority.

Bill for Discovery and Accounting. Appeal from Lowndes Chancery Court. Heard before Hon. L. D. GARDNER. Bill by Elizabeth McKellar, as administratrix, etc., against A. B. Hall. Decree for complainant, and respondent appeals.

<p> Bill to Enforce Mechanics Lien. </p> <p>Appeal from Morgan Chancery Court.</p> <p>Heard before Hon. W. H. Simpson.</p> <p>Bill by I). Crawford against A. E. Sterling and others to enforce a mechanic’s or material-man’s lien. From a decree for respondent, complainants appeal.</p> <p>The complainant-had a right to enforce his lien upon the two lots, although his notice and statement was single and embraced both lots in one.- — Phillips v. Gilbert, 101 XJ. S. 721; Lyon v. Logan, 68 Tex. 525; Surgeon v. D envoy, 87 Ya. 208; Premier Steel Co. v. McEhoain, 144 Inch 119; Maryland Brick Go. v. Spellman, 76 Mel. 342; Ore. 50; 3 S. Dale. 121; 1 Kan. App. 148; 21 Nev. 346.</p> <p>The notice and statement are uncertain. — Southern Ry. Co. v. Bunt, 32 South. 507. The notice and statement were single and cannot operate to create a lien on two distinct and separate lots. — Coeciolo v. Wood-Dickerson Sttpry. Co., 33 South. 856; Johnson v. Simmons, 123 Ala. 554; Cook v. Rome Brick Go., 98 Ala. 410. The statement, therefore, fixed no lien on either of the lots. — Leftioich Lbr. 06. r>. Florence, etc. Savings Assn., 104 Ala. 595.</p>

<p>1. Quieting Title; Character of Title; Disputed or Scrambling Possession. — The character of possession that will defeat an action to quiet title is not.necessarily such adverse possession as would ripen into a title if sufficiently maintained as to time and character, but is such possession as amounts to a disputed or scrambling possession, as contradistinguished from peacable and quiet possesion.</p> <p>2. Same; Evidence to Establish. — Where the defendant claimed by adverse possession and the evidence tended to show that he was in actpal possession of the land under a deed, and that for a number of years he had cultivated part of the land personally and by tenant, and that after the house thereon and the fence enclosing the land had been destroyed he continued his acts of ownership such as taking timber, etc., from the land, paying taxes thereon, and otherwise claiming the land, and that shortly before the filing of the bill he notified the agent of complainant that the land was his, such evidence was sufficient to show an actual and disputed possession sufficient to defeat the bill although complainant had the legal title 'to the land and constructive possession through such title.</p>

Bill to Deolwre an Absolute Deed A Mortgage. Appeal from Coffee Chancery Court. Heard before Hon. W. L. Parks. Bill by R. J. Hattaway against N. B. Johnson. Prom a decree for complainant, defendant appeals. The following is a copy of the lease agreement referred to in the opinion: “State of Alabama, Pike County.

Bill to Abate Public Nuisance. Appeal from Mobile Chancery Court. Heard before Hon. Thomas H. Smith. Bill by the state, on the relation of George A. Tutbill and another, in behalf of themselves and other inhabitants of the town of Claiborne, against William P. Deer, to enforce a decree formerly rendered abating a public nuisance. From a decree overruling demurrers and a motion to dismiss the bill, defendant appeals.

<p>1. Municipal Corporation; Fiscal Management; Bonds; Constitutional and Statutory Provisions. — General Acts 1903, page 59, Is a new power conferred under the provisions of the Constitution of 1901, and is not affected by the limitation contained in the charter of the town of Bast Lake; section 225 of the Constitution of 1901, itself fixing the limitation on such power.</p> <p>2. Same. — Section 29 of the charter of Bast Lake refers to the ordinary transaction of a municipal government and has no reference to the issue of bonds; otherwise, it would conflict with section IS of said charter.</p>

<p> Bill to Enforce a, Trust. </p> <p>Appeal from Franklin Chancery Court.</p> <p>Heard before Hon. W. H. Simpson.</p> <p>Bill by Eugene C. Gordon and others against the Lady Ensley Coal, Iron & Bailroad Company and others to enforce a trust. From a decree overruling demurrers to the hill, defendants appeal.</p> <p>According to the averments of the bill, on May 9,1881, David Pounders and wife made and delivered to Gordon a written contract which is as follows: “That whereas, John B. Gordon, A. H. Colquitt, Eugene C. Gordon, and Walter B. Gordon, and their associates, propose to build a railroad from some point on the Memphis & .Charleston Railroad, or from some point on the Alabama Great Southern Railroad, or from some point on the Columbus, Fayette & Decatur Railroad,- or on the Elyton & Aberdeen Railroad, now being built and located, the said proposed railroad to pass into or through the counties of Frank]in, Marion, Walker, and Colbert, or all of them; and whereas, the building of said railroad would in our opinion become a convenience and a benefit to the undersigned in various ways, in the probable enhancement of the value of our property and our labor in furnishing, facilities for transportation and more rapid communication to and with the markets of the country: Now,, therefore, for and in consideration of. all these benefits: and advantages, which in our opinion would accrue to ns in building said road, should the said Gordon and his associates and successors within six months from this date begin or cause to be begun the work of surveying or building or grading said railroad, and shall within three years of this date extend the said road so as to reach the county of Franklin, or the counties of Winston, Walker, and Colbert, or al] of them, then and in that event Ave, David C. Pounders and Annie Pounders, his wife, do hereby agree and bind ourselves, our heirs, administrators, and assigns, to make unto the said Gordon and his associates and successors good and sufficient title in fee simple, and upon compliance on their part with the terms of this contract the title to said premises is hereby invested in the said Gorden, his associates and successors. [Here follows the description of land.] And the undersigned bind themselves, their administrators, executors, and assigns, to make unto the said Gorden and his associates, upon the conditions Avritten above respecting the surveying and building of the proposed railroad, good and sufficient title to all coal, iron, and coal oil and other minerals on, in, or upon the following described land: [Here folloAvs the description of the land.]’' Right is also given to enter upon the lands to prospect for minerals and mine the same. This contract was recorded in Franklin county on September 4, 1881. On November 21, 1882, Pounders and wife conveyed- the property described in the contract, together Avith other property, to Enoch Ensley and his associates, and this deed was recorded December 1, 1882. The bill further alleges that on -June IT, 1884, Pounders and wife executed and delivered a deed to the property described in the contract to Eugene 0. Gorden and TV. S. Gorden, aaTio had succeeded to all the rights of their associates under said contract. This deed was recorded about January 9, 1886. It is averred that at the time Ensley received his deed he had actual and legal notice of the execu-tory contract, on account of its registration; and it is also averred that the conveyance to Ensley and his associates expressly stipulated that the conveyance to Ensley was subject to the said executory contract. It is further averred that those deriving title from said property through said conveyance to Ensley and associates took the same in subordination to the right and equities of complainant. It is further alleged that on the 3d day of April, 1884, Ensley, as trustee for himself and others, conveyed .said property, together with other property, to the Lady Ensley Coal & Iron Company, Avhose name was afterwards changed to Lady Ensley Coal, Iron & Railroad Company; that some time later the Lady Ensley Coal, Iron & Railroad Company was placed in the hands of a receiver by an order of the chancery court of Jefferson county, and that A. G. Smith was named as such receiver, and on March 9, 1903, a decree of sale was made and rendered, ordering a sale of all the property of said company, including the property described in the executory contract; and that on March 30,1903, all this property was sold under decree by the register, and was purchased by the Sloss-Sheffield Steel & Iron' Company, which sale was reported to and confirmed by the court ordering the sale. It is further averred that at the time of said sale a certain cause was then pending in the chancery court of Franklin county, wherein appellees were complainant and A. G. Smith, as receiver, was respondent, in which cause the complainants in this bill asserted title to and a paramount equity in the property described in the ex-ecutory contract. It is further averred that Pounders after making said contract and said conveyances, retained the fee-simple title to the surface of said land, and that he has ever since been, and is now, in the lawful and actual possession of the surface and soil of said land, and that no person or corporation has ever worked, taken out, or disposed of, or in any manner used or taken actual possession of, said minerals, rights, and interests mentioned in said executory contract. The Rloss-Slieffield Steel & Iron Company and others were made parties with the Lady Ensley people, and the prayer is that the rights and equities of appellees and of the widow, heirs, and estate of W. $. Gordon, may be defined and preserved, and that they may have and he entitled to the trust alleged to have been imposed upon said Ensley and his associates, that the Sloss-Sheffield Steel & iron Company may be decreed to hold said property subject to said trust, and that it may be directed and required to execute and deliver to complainants all such deeds as may be necessary to complete, perform, and execute said trust, and for an injunction restraining the Sloss-Sheffield Company, or any one cláiming under it, from maintaining or asserting any claim to said property or interfering with the working of the mineral rights, etc., and for general relief. The Lady Ensley Company and the Sloss-Sheffield Company filed motions to dismiss the bill for want of equity, and demurrers grounded upon staleness of demand, laches, and the statute of limitations for 10 and 20 years. The motions and demurrers were submitted together, and separately overruled.</p> <p>The contract from Pounders to the Gordons was merely an executory contract. — Smith v. Gordon, 136 Ala. 148. The estate remains the estate of the vendor until the execution of a valid conveyance. — Young v. Latham, 132 Ala. 341; Davis v. Williams, 130 Ala. 530; Love v. Butler, 129 Ala. 531. At most only a constructive trust was created. — Davis v. Williams, supra; Pom. Eq. Jur. 1260 and note 3. If Pounders was the trustee he had the power- to convey the trust estate. — McBryer v. Garter, 64 Ala. 50; Robinson v. Pierce, 118 Ala. 273; Anderson v. Johnson, 127 Ala. 490; Mobile Transfer Go. v. Mobile, 128 Ala. 349. Nothing in deed operated to create Ensley more than a trustee in invitum. — Robinson v. Pearce, supra. The deed from Pounders to Ensley breached the contract so that the cause of action arose upon its execution. — Hawkins v. Merritt, 109 Ala. 265; Bracken v. Nevyman, 121 Ala. 313; Harvey v. Legg, 127 Ala. 627. Appellee was barred under ■ the statute of ten years. — Haggerty v. Elyton Land Go., 89 Ala. 428. The trust being constructive the right to enforce it is barred under the statute of ten years.- — Nettles v. Nettles, 67 Ala. 599; Waller (?. James, 107 Ala. 331. Appellees are barred by the statute of twenty years.’ — Bozeman v. Bozeman. 82 Ala. 389; Garrett v. Garrett, 69 Ala. 420; ¡Semple v. Glenn, 91 Ala. 245; Matthews v. MoDade, 72 Ala. 377; Sec. 647, Code 1896. Appellees are barred by their laches. — Montgomery L. & TP. P. Go. v. Lahey, 121 Ala. 136; Reeves v. Henry, 108 Ala. 527; Haney v. Legg, supra; Nettles v. Nettles, supra; Johnson r. Johnson, 5 Ala. 96.</p> <p>By the conveyance from Pounders to Ensley, Ensley became the trustee, for the benefit of those equitably interested. — Dickinson v. Wynn, 25 Ala. 424; Poole v. Gummings, 20 Ala. 569; ¡Sledge v. Clopton, 6 Ala. 589; Ross v. Parks, 93 Ala. 156; Meyer v. Mitchell, 75 Ala.- 480; Kmg v. Richardson, 21 N. J. E. 604; Dere v. Dellmgton, 75 N. C. 302; Lehman v. Lewis, 62 Ala. 129; Patton v. Beecher, 62 Ala. 587. The recitals of the deed to Ensley that it was subject to the contract with the Gordons was notice of the existence of the contract and operates as an es-toppel. — Gardigee v. Mitchell, 51 Ala. 156; Kennedy v. Brown, 61 Ala. 298; Oliver v. A. G. L. Ins. Go. 82 Ala. 428; 2 Hermann on Estoppel, secs. 576; 606; 608 and 613; 2 Pom. Eq. 688; 24 Ency of Law, pp. 66 and 69; 28 . Ib. 508; Wimbish v. B. & I. Asso., 69 Ala. 678; Shake-speré v. Alba, 76 Ala. 352. The doctrine of laches and limitation have no application. — Pickens v. Polk, 74 Ala. 122; Sample v. Reeder, 107 Ala. 231; Washington ■v. Norwood, 128 Ala. 391.</p>

Bill to Redeem From Mortgage Rale. Appeal from Marengo Chancery Court. Heard before Hon. Thomas H. Smith. Bill by Jefferson and others against J. M. Sadler and others for the redemption of lands from a mortgage sale. From a decree for respondents complainants appeal. -Bailey is estopped to deny complainant’s title. — m spall a v. Touart, 96 Ala. 137; 3 Mayf. 116-17.

Bill by Trustee in Ho nkruptoy to Avoid A Conveyance. Appeal from Birmingham City Court. Heard before Hon. W. W. Wilkerson. Bill by John H. Wallace, as trustee in bankruptcy of ■one Randall,'against William H. Prestridge and others. Decree for complainant, and defendant William H. Prestridge appeals in the name of all the defendants. Motion to dismiss appeal denied. The original bill made J. E. Cox, Lucy J. Cary, M. A: Lucas, and Minnie K. Randall, respondents.

<p> Bill for An Accounting For Rent. </p> <p>Appeal from Autauga Chancery Court.</p> <p>Heard, before Hon. W. W. Whiteside.</p> <p>Bill by Julia A. Thomas against George S. Livingston seeking to have him account for rents alleged to have been collected by him from certain lands while' the relation of mortgagor and mortgagees existed. From a judgment for respondent complainant appeals.</p> <p>If the purchase of the equity of redemption is not founded on an adequate consideration or if the mortgagor lias not acted voluntarily, but under coercion and duress, or if the mortgagee has been guilty of fraud, imposition or undue influence, the transaction will be set aside or disregarded. All such dealings are sharply scrutinized and even a slight suspicion of unfairness will incline the court to grant relief. — 9 A. & E. Decisions in Equity, 680; Villa v. Rodriquez, 12 Wall. 323. It is like the case of one dealing for a reversion with an expectant heir. — ¡Salter v. Bradshaw, 26 Beav. 161; Aylesford v. Morris, L. R. A. Oban. 484.</p> <p>The transaction was a conditional sale and not mortgage. — Douglass v. Moody, 80 Ala. 61; Mitchell r. Wellman, 80 Ala. 16; Haney o. Robinson, 58 Ala. 37; Longwood v. Hussey, 60 Ala. 417; IWsf v. Henderson, 28 Ala. 226; Reeves v. Abercrombie, 108 Ala. 535. The consideration was not inadequate. — Rapier v. Paper Go., 77 Ala. 126. The relation of debtor mnst be shown to have continued after the sale. — Perdue v. Bell, 83 Ala. 396.</p>

<p> Bill for Partition. </p> <p>Appeal from Tuscaloosa County Court.</p> <p>Heard before Hon. H. B. Foster.</p> <p>Bill by the Louisville & Nashville Bailroad Company against M. J'. McDaniel and others for the sale of certain real estate held in common, for division. From a decree overruling demurrers to the bill, respondents appeal.</p> <p>Counsel for appellant cite the following cases to the effect that the respondents having brought- their ejectment suits the jurisdiction of the law court attached and should not be interrupted. — Abercrombie v. Raldnom, 15 Ala. 368; Southern Cotton Oil Go. v. Henshaw, 40 South. 760; Wither son v. Stewart, 74 Ala. 198; Walker v. Orawford, 70 Ala. 567; Tiedman Beal Property 247, et. seq. As to attorney’s fees he cites the following. — Randolph v. Builders 6 Painters Supra Go., 17 South. 721. On the question of the division of the proceeds he cites the following.— Horton v. Pledge, 29 Ala. 478; Marshall v. Marshall, 5 South. 476; Donough v. Q wa/rterman, 8 South. 718; Willcerson v. Stewart, supra; Twrmpseed v. Fitzpatrick, 75 Ala. 305; Ferris v. M. L. & I. Go. 10 South. 607; Or-mond v. Martin, 37 Ala. 598; Stemv. McGrath, 30 South. 792; Moore v. Thorpe, 7 L. R. A. 731; Freeman on Co-Tennancy, sec. 511.</p> <p>cited Ferris v. Montgomery, etc. Land Go., 94 Ala. 557,10 South. 607, 33 Am. St. Rep. 146; Willcerson r. Stuart, 74 Ala. 198; Ward r>. Ward, 40 W. Va. 611, 21 S. E. 746, 29 L. R. A. 449, 52 Am. St. Rep. 911; Moore r. Thorp, 16 R. I. 655, 19 Atl. 321, 7 L. R. A. 731; Louvalle v. Menard, I Oilman (Ill.) 39, 41 Am. Dec. 161; Kurtz v. Hibner, 55 Ill. 514, 8 Am. Rep. 665; Fenton v. Miller, 116 Mich. 45, 74 N. W. 384, 72 Am. St. Rep. 502; Glapp r. Nichols, 31 App. Div. 531, 52 N. Y. Supp. 128; Id. 32 App. Div. 628, 53 N. Y. Supp. 1101; Ford v. Knapp, 102 N. Y. 135, 6 N. E. 283, 55 Am. Rep. 782; Moore v. Williamson, 10 Rich. Eq. (S. C.) 323, 73 Am. Dec. 93; Broyles v. Waddel, 11 Heisk. (Tenn.) 32; Prather v. Prather, 139 Ind. 570, 39 N. E. 310; A.llemcm v. Hawley, 117 Ind. 532, 20 N. E. 441; Freeman on Co-Tenancy (3d Ed.) § 510, and note; Kill-mer v. Wither, 79 Iowa, 722, 45 N. W. 299, 8 L. R. A. 289, 18 Am. St. Rep. 392; Robinson v. McDonaKFs Widow d Heirs, 11 Tex. 385, 62 Am. Dec. 480, and note; Leah v. Haynes, 13 Wash. 213, 43 Pac. 48, 52 Am. St. Rep. 34; Ballou v. Ballou, 94 Ya. 350, 26 S. E. 840, 64 Am. St. Rep. 733; 16 Am. & Eng. Enc. of Law (2d Ed.) p. 116; Sanders v. Robertson, 57 Ala. 465; Horton v. Sledge, 29 Ala. 498; Ormond v. Martm, 37 Ala. 598.</p>

Bill to Declare a Preference. Appeal from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Bill by W. H. McAfee, as assignee in bankruptcy, against Arnold & Mathis. Front a decree confirming the report of the register, allowing a preference to certain claims and giving' a lien against the estate, the assignee appeals.

Bill to Declare an Bquitahle Mortgage or Lien on Laaids. Appeal from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Bill by G. B. Edwards against Mary Scruggs to declare ¡and enforce ;an ¡equitable mortgage on certain lands. From a decree sustaining demurrers to tbe bill, complainant appeals.

Bill to Quit Title. Appeal from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Bill by R. Copeland against Emma Bond and others the quiet title. Prom a decree dismissing the bill complainant appeals. Counsel cites the sections of the Code applicable to tax sales and insists that a substantial compliance is had therewith. Counsel discuss assignments of error, but without citation of authority.

Hill for (¡Specific Performance. Appeal from Mobile Chancery Court. Heard before Hon. Thomas H. Smith. Bill by the Eairford Lumber Company against the Tombigbee Valley Railroad Company for specific performance of a contract. From a decree overruling a motion to dismiss the bill for want of equity, respondent appeals.

Bill by Foreign Administrator to Foreclose Mortgage. Appeal from Madison Chancery Conrt. Heard before Hon. W. H. Simpson. Bill by James Hughes, a foreign administrator, against Jennie L. Campbell, and others, to foreclose a mortgage. From a decree for complainants respondents appeal. The certificate attached to the copy of the letters filed Oct. 13, 1904, is wholly wanting in any of the formalities required by sec. 905, U. S. Rev. St. — Sec. 359, Code 1896.

Bill to Atate a Private 'Nuisance. Appeal from Anniston City Court. Heard before Hon. Ti-xomas W. Coleman, Jr. Bill by Martin L. McGinnis against W. J. Edmondson and others to abate a nuisance consisting of the overflow of land caused by the raising of a mill dam. There was a decree for complainants and respondent appeals. Leyden was a necessary party to a decree affecting Ms property rights. — Lawson v. Ala.

<p> Bill to Annul Deed on Account of Unchte Influence. </p> <p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by Martha A. Neal and others, widow and daughters of Joseph D. Neal, deceased, to set aside and annul a deed alleged to have been executed by complainant to Joseph D. Neal. There was decree for complainant and respondents appeal.</p> <p>The parent is presumably tbe dominant party. — McLeod v. McLeod, 145 Ala. 269; Dolberry v. Dolberry, 44 South, 1018; Banders v. G-urley, 44 South. 1022; Guest v. Ea-son, 2 Houst. 2246; Williams v. Williams, 24 Tex. 426; Francis, et al. v. WUlcer son, .147 Ill. 882. The influence for which a deed will be annulled must be such as that the party making it has no free will. — Reeves v. Lamp-ley, 125 Ala. 457; Adaur v. Graig, 135 Ala. 335; Gonley v. Nailor, 118 U. S. 134; Rawlston v. Turpin, 129 U. S. 663; Machall v. Machall, 136 U. S. 167; 13 Cyc. 587; Thompson v. Moore, 135 U. S. 17.</p> <p>We respectfully cite the following authorities. — Bigelow on Frauds, pp. 261 and 341; Cooley on Torts, 515; Pomeroy’s Equity Jurisprudence, 3rd Ed. secs. 955-56-57; Boney et al. v. Hollinsioorth, et al., 23 Ala. 690; Bhipman v. Fur-niss, 69 Ala. 555; Burke v. Taylor, 94 Ala. 530; Kyle v. Perdue, 95 Ala. 585; Especially McQueen v. Wilson, 131 Ala. 606; Gannon v. Gilmer, 135 Ala. 302; Harraway v. Harrmoay, 136 Ala. 499; Hutcheson v. Bibb, 142 Ala. 586; Phillips v. Bradford, 147 Ala. 346, and as to laches, see Mullen v. Walton, Ad/tnr., 142 Ala. 166; Code of 1907, § 4852. As answer to the attempted defense of adverse possession: Norment v. Fureha Go., 98 Ala. 181, and authorities there cited; S .C. 104 Ala. 625 and authorities there cited; Wiggs v. Kirby, 106 Ala. 262; Adler v. Prestwood é Knowles, 122 Ala. 367. Miscellaneous: Meyer Bros. v. Mitchell, 77 Ala. 312; Dixon & Go. v. Higgins, 82 Ala. 284; Bogan v. Hamilton, 90 Ala. 454.</p>

Bill to Annul a Lease. Appeal from Jefferson Chancery Court. Heard before Hon. Alfred H. Benners. Bill by W. S. Smith against James A. Collins to annul a lease. From a judgment overruling respondent’s demurrers, he appeals. The affirmance with modification of the decree by the Supreme Court, the original decree being an absolute one dismissing the bill, is a bar to the maintenance of the present suit.— 2 Dan. Chan. P. & P. 994-996; 6 Ency.

Bill to Quiet Title. Appeal from Marion Chancery Conrt. Heard before Hon. W. H. Simpson. Bill by Lindon J. Dickinson against George S. Harris to quiet title. From a decree dismissing the bill, complainant appeals. The bill contains the usual statutory averments.

Bill to Enforce Mechanic’s Lien Against Gity Property. Appear from Morgan Chancery Conrt. Heard before Hon. Marvin West, Special Chancellor. Bill by Scruggs & Echols against the mayor and council of the city of Decatur to enforce a mechanic’s lien upon a public school and upon a fund set apart by the city for the purposes of constructing such building.

Bill by Trustee in Bankruptcy to Annul Gifts of Real and Personal Property by Bankrupt. Appeal from Morgan Chancery Court. Heard before Hon. W. H. Simpson. Bill by Marvin West, as trustee in bankruptcy, against Anna M. Cartright, and others to annul and avoid certain gifts alleged to have been made by the bankrupt in fraud of creditors. From a decree for po-mplaitaants respondents ¡appeal.

Bill to Enjoin Ejectment anti for Cancellation of Deeecl. Appeal from Mobile Chancery Court. Heard before Hon. Thomas H. Smith. Bill by Howell Slaughter against Leslie Hall and another to enjoin an ejectment suit, and for cancellation of a deed. From a decree for complainant respondents appeal. The bill is without equity and the demurrer should have been sustained. — New England Mtg.

Receiver. Appeal from Etowah Chancery Court. Heard before Hon. W. W. Whiteside. T. C. Galloway was appointed receiver of the Etowah Mining Company at the instance of the Wills Valley Mining !& Mfg. Co. The appointment was declared wrongful and Galloway as receiver made a motion to require the Wills Valley Mining & Mfg. Co., to pay the receiver the amount ascertained and reported as the expenses of the receivership.

Bill to Condemn Building. Appeal from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Bill by the mayor and alderman of the city of Birmingham against R. H. Pearson and others to abate a public nuisance — an unsafe building on one of the streets therein. From a decree for complainant respondents appeal. The city was not entitled to a mandatory injunction to abate the nuisance complained of. — 1 High on Injunction, sec. 761; 5 N. J. E. (Greene) 530; 9 lb. 89.

Bill for Partition of Land. Appeal from Cherokee Chancery Court. Heard before Hon. W. W. Wi-iiteside. Bill by William Siglin and another against Jacob D. Flomerfelt and others for partition of land, etc. From a decree oyerruling demurrers to the bill, defendants appeal. The bill is filed by William Siglin and Mary E. Flo-merfelt, as an individual and as administratrix of the estate of James A. Flomerfelt, deceased, against the heirs of said James A. Flomerfelt, deceased.

Bill for Injunction and Specific Performance. Appeal from Covington. Chancery Court. Heard before Hon. W. L. Parks. Bill by F. E. Jones against S. A. Jones, to enjoin an ejectment suit and to- specifically enforce a parol contract for the sale of lands. From a decree for respondent defendant appeals.

Bill to Enforce Equity of Redemption, Appeal from Tallapoosa Chancery Court. Heard before Hon. W. W. Whiteside. Bill by C. C. Clark against D. Janes Johnson and others to enforce an equity of redemption. Prom a decree for respondents complainants appeal. No valid foreclosure is shown in this case. — Wood v. Lake, 62 Ala. 489; Sanders v. Ashneio, 79 Ala. 493. Respondents cannot set up the foreclosure as a defense in this case.— ■Tobias x>.

Bill to Enjoin Change of Oracle of Street. Appeal from Morgan Chancery Court. Heard before Hon. W. H. Simpson. Bill by Williams Scba.rfenbu.rg against tbe town of New Decatur to abate a nuisance growing out of tbe grade of street and for damag’es. From a decree for respondent, complainant appeals.

Bill for Receiver and an Accounting. Appeal from Covington Chancery Court. Heard before Hon. W. L. Parks. Rill by W. R. Barnes against A. J. Bentley and others for the purposes stated in the opinion. From a decree overruling the demurrer to the amended bill, respondents appeal.

<p>Appeal from Clarke Circuit Court.</p> <p>Heard before Hon. John T. Lackland.</p>

<p>Original petition in tbe Supreme Court.</p>