Volume 156 — Alabama Reports

Heard before Hon. H. A. Pearce. From a conviction of manslaughter in the first degree, for tlie killing of Lonnie Yelveton, Ben Henderson appeals. Ben Henderson and Willis Henderson were jointly indicted, and severance was granted. Willis Henderson was the man who fired the fatal shot. The evidence for the-state tended to show that Ben Henderson, the father of Willis, participated in the difficulty just previous to-the shooting.

<p> Murder. </p> <p>1. Evidence; Self Serving Declarations; Homicide. — A defendant may not show self sexwing declarations made by him after the commission of the offense, and hence,- the court properly excluded a question to the sheriff as to what, if anything, the defendant said, in the house when he visited him.</p> <p>2. Witnesses; Examination; Repetition. — It is not error to permit a .witness to be asked what it was that defendant said, although on redirect examination such witness had stated what defendant had said in the natui'e of a confession about the killing, although it was repetitious.</p> <p>3. Homicide; Evidence; Admissibility. — Where the evidence tended to show that the defendant, in answer to a knock at the door, opened the door, and, receiving no answer to his question of who is there, shot the person, the defendant may not testify that there had been considerable complaint of housebreaking or burglary in the neighborhood about the time of and just before the shooting; it not being shown that such rumor had any effect in producing the crime or that the shooting was done while deceased was engaged in an unlawful act.</p> <p>4. Witnesses; Examination; Leading Questions.~A question,“Were you and Berry Mitchell on friendly terms?” is objectionable as leading.</p> <p>5. Homicide; Motive; Evidence. — The evidence tending to show that the shooting occurred after a knock on the door and the opening of the door by defendant, and his failure to get any response-to his inquiry, it was competent to ask him on the cross what he had the gun for, as his motive under the circumstances was material.</p> <p>6. Trial; Evidence; Erroneous Admission; Cure. — Where evidence-is erroneously admitted, the error is cured by subsequently excluding the evidence.</p> <p>7. Same; Argument of Counsel. — In the absence of evidence showing an attempt at flight by the defendant, it was error to permit the prosecuting attorney to say in his argument to the jury that defendant was guarded in his house by the neighbors after the shooting until the sheriff could arrive.</p> <p>S. Homicide; Instructions; Sufficiency. — A charge asserting that deféndant’s house was his castle and stating his right to defend it against attack, etc., but which does not state the defendant’s belief in the facts hypothesized therein, is properly refused.</p> <p>9. Charge of Court; Confusing Instructions. — A charge asserting that if the evidenec is evenly balanced the jury should lean to the side of mercy and decide in favor of the defendant, is properly refused as confusing.</p> <p>10-. Same; Argumentative Instructions. — A charge asserting that if a reasonable doubt exists or grows out of the evidence or any conflicting statement made by the witnesses, if any in fact, is made, which cannot be reconciled so as to make all the witnesses speak the truth under all the facts proven in the case, the jury must acquit the defendant, is not only argumentatve but misleading.</p> <p>11. Same. — A charge asserting that the jury might take into consideration the fact, if it be a fact, in determining whether or not the defendant intended to have escaped, that the defendant could have escaped before the crowd congregated at his house, is properly refused as misleading.</p> <p>12. Same. — A charge asserting that the jury might take into consideration the fact, if it be a fact, that the defendant could have escaped before the crowd congregated at defendant’s house, in determining from all the evidence whether or not defendant intended to escape, is argumentative and its refusal proper.</p> <p>IS. Same. — A charge asserting that if the jury believe from all the evidence that defendant was excited or scared, they might look to that evidence, together with all the other evidence in the case, in determining whether or not the shooting was excusable or justifiable, is properly refused as argumentative.</p> <p>14. Same. — A charge asserting that the state had offered no evidence showing that defendant’s house was guarded so as to prevent his flight, and that the argument of counsel to that effect was improper and must not be considered, was properly refused as argumentative.</p> <p>15.. Same. — A charge asserting that- there was no evidence that' the •defendant was convicted for cutting up a man some eighteen or twenty years ago, and any statement of counsel to that effect whs-unWar-" ,ranted by the evidence-and' should not be considered-in determining: •• whether or not the defendant is guilty, is properly refused as 'argumentative. ' ' •" ■ ' r- ; ’</p> <p>16. Homicide; Self-Hefensc; Oonfnsúig Instructions. — An instruction - asserting that by overt acts is meant any action or demonstration, of deceased that was sufficient to create in the mind of a reasonable man under the same circumstances, or like circumstances, that- the defendant, was actually in danger of real or apparent danger either to life or limb, or great bodily harm, and it is the same in law-even if no real-danger in fact existed, is involved and confusing, and its refusal proper.</p>

<p>Appeal from Geneva Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Tom Ridgell was convicted of manslaughter in the first degree, and he appeals.</p> <p>The. defendant was indicted for killing one John McGehee by cutting him with a knife. The facts on which the opinion is rested sufficiently appear therein. The following charges were refused to the defendant: “ (14) If the jury believe from 'all the facts of the case that the conduct of the deceased was such towards the defendant at the time of the killing as to create in the mind of defendant a just apprehension of apparent imminent danger to his limb or life, he could lawfully act upon such appearances and kill his assailant, provided defendant was free from fault in bringing on the difficulty. (11%) If the deceased, McGehee, commenced the difficulty by using towards the defendant insulting or abusive language, and if the defendant merely answered the insult and did nothing more, and if thereupon deceased immediately struck defendant with a bottle, and used or attempted to use his knife on defendant, and if thereupon defendant cut the deceased, and such cutting was, or reasonably appeared to he, necessary to protect defendant from grievous bodily harm, and if . there vnffi open'to defendant no reasonable mode of escape without increasing Ms danger, or- apparent • danger, then you. will find defendant not guilty.” '</p> <p>'The court erred in permitting the state to impeach Hartley in the way attempted. — Gooley v. The Stale, 87 Ala. -’57; Williams v. The State, 13Ó Ala. 107; 1 Green, on. Evi. sec. 162. Charge 11% should have been given.- — ■ Hotvell v. The State, 79 Ala. 283.</p> <p>The court did not err in refusing to quash the venire. — Roberts v. The State, 69 Ala. 156. The threat was rendered admissible by the subsequent introduction ■of proof of the 'corpus delicti. At most it was an- irregularity. — LaFayetie County t>. Tucker, 121 Ala. 511. ‘The court did not err in reference to Hartley’s testimony. It was a quasi confession and tended to show his animus. — Plant v. The State, 110 Ala. 51; Bush v. The State, 136 Ala. 85. The court did not err in the refusal of the charges. — Mitchell v. The State, 133 Ala. 65; Harrison v. The State, 111 Ala. 20; Reese v. The State, 135 Ala. 13; Franklin v. The State, 11 South. 979.</p>

<p>Appeal from Mobile City Court.</p> <p>Heard before Hon. O. J. Sem-mes.</p> <p>Tom Greer was convicted of manslaughter in the first degree, and he appeals.</p> <p>The testimony of Eliza Johnson Avas that deceased Avas her' husband, and that she was present when he died and that he lived about ten minutes after she reached him. He said that he had something to say to her before he died. The solicitor asked her: “Do you know whether at that time he believed he Avas going to die?” Witness replied: “I called him three times before he answered, and asked him if he kneAV me, and he said, 'Yes/ and I asked, 'What Avas my name? and he said, 'Eliza,” and I asked him what this man cut you for?’ and he said, 'He cut me to death.’ ” Defendant objected to this testimony. The solicitor then asked Avitness if deceased said anything indicating that he thought he Avas going to die, and Avitness answered: “That Avas all he said.” The solicitor then asked: “Did he say Avho cut him?” Witness ansAvered: “He said this man cut him to death (pointing to defendant).”</p> <p>The following charges Avere refused defendant: “(1) Defendant is authorized under the statute to testify in his own behalf, and the jury have the right to give full credit to his own statement. (2) Gentlemen of the jury, I charge you that you must find defendant not guilty of his conduct upon a reasonable hypothesis is consistent with innocence. (3) Gentlemen of the jury, I charge you that if you have a reasonable doubt as to whether defendant acted in self defense or not you should find him not guilty. (4) The court charges the jury that the law is that not only must the jury have justifying reasons for a conclusion of guilt, not only must they'he able to say upon reason that defendant is guilty, but their conclusion to this effect must be so reasonable to their minds as to exclude all doubts of its correctness to a moral certainty. (5)- Gentlemen of the jury, I charge you that if defendant, after getting into a difficulty with deceased in the house, honestly declined the comhat, and for the hona fide purpose of getting away from deceased, and thus escaping any further trouble with him, retreated to and down the street, but that deceased, armed with an ax or pick, pursued him, and that deceased struck or attempted to .strike defendant with the ax or pick in such a manner as to endanger his life, or as to inflict upon him great bodily harm, then his right of self-defense revived; and if the circumstances by which defendant was then surrounded were such as to endanger in a reasonable mind the honest belief that deceased was about to inflict upon defendant gome great bodily harm, and they did induce in the mind of defendant this belief, and also the honest and reasonable belief that further retreat could not be attempted without increasing his danger, then defendant had the right to stop and repel the attack of deceased, even to the extent of taking his life, and if you believe that these were the circumstances under which defendant killed deceased, then you must find him not guilty. (6) Gentlemen of the jury, I charge you that if defendant, after getting into the said difficulty in the house,” etc.,.continuing as in charge 5, except that, where the word “endanger” is used in charge 5, the word “engender” appears in charge 6.</p> <p>The court should have given charge 1. — Smith v. The State, 92 Ala. 30. Charge 2 should have been given. — Howard’s Case, 108 Ala. 571. So should charge 3. — Smith v. The State, 68 Ala. 424.. The refusal to give charge 4 was error.- — Elmore v. The State, 92 Ala. 51; Jones v. The State, 100 Ala. 88; McElroy v. The State, 88 Ala. 58. Charge 5 should have been given.— Brown v. The State, 118 Ala. Ill; Smith v. The State, 92 Ala. 30. On these same authorities charge 6 should have been given, as well as charge 7.</p> <p>No error is shown in the admission of evidence. —Willis v. The State, 74 Ala. 21; Jolmson v. The State, 47 Ala. 9. The charges requested by the defendant and refused were either misleading, unintelligible or covered by those given. — 116 Ala. 445; 130 Ala. 95; 113 Ala. 43.</p>

Heard before Hon. W. H. Thomas. Wade Hampton Hunter was convicted of murder in the second degree, and appeals. Before going to trial, and before announcing ready for trial, defendant filed a motion to quash the venire, and also filed objections to being put on trial. The motion to quash and the objections to going to trial are based upon the following agreed statement of facts.

Heard before Hon. D. W. Speaice. Strater Patton was convicted of murder in the second degree, and appeals. Defendant was charged with the killing of Tobe Horton by shooting him with a pistol. Buddy Benford, a witness for the state, while testifying, as is shown by the record, said that defendant spoke to his partner, Garfield Wilson. The defendant moved to exclude this testimony of the witness as to defendant’s partner, because irrelevant.

Heard before Hon. Alto Y. Lee. Ernest Birt was convicted of manslaughter in tbe first degree, and appeals. Tbe facts are sufficiently stated in tbe opinion of tbe court.

Heard before Hon. O. P. Almon. Ben McDaniel was convicted of manslaughter in the second' degree, and he appeals. The facts sufficiently appear in the opinion of the court.

Heard before Hon. W. W. Pearson. Charlie Hodo was convicted of murder, and he appeals. The judgment was rendered at a term of the court not authorized by law and will not support a conviction. — L. cG JY. R. R. Go. v. Grant, 45 S'outh. 246.

Heard before Hon. C. P. Almon. Joel McBryde was convicted of murder in tbe second degree, and he appeals. It was shown on the trial that the juror Blackwell was named “J. P. Blackwell,” and not “J. C. Blackwell,” as his name appeared in the Jury box; but it was ascertained that there was no other person named “Blackwell” in the beat in which he lived.

Heard before Hon. B. M. Miller. Haywood Ludlow was convicted of murder in the second degree, and he appeals. The defendant was indicted for the killing of Will White by shooting him with a pistol.

I-IearcT before Hon. D. W. Speaks. Steve Patterson was convicted of nrnder in the second degree, and appeals. Defendant was indicted for killing Giles Davis. For a former report of this case, see 146 Ala. 39, 41 South. 157.

Heard before H'on. D. A. Greene. Vines Gibbs was convicted of murder in the. 1st deegree, and he appeals. The following charge was refused to defendant: The court charges the jury that every citizen, no matter how humble, has a right to bear arms in defense of his person.

Heard before Hon. Thomas W. Coleman, Jr. Lee Carter was convicted of murder in the 2nd degree, from which he appeals. The court should have given written charges 1 and 3. — King v. The State, 90 Ala. 612; Mooney v. The State, 33 Ala. 419; Ford v. The State, 71 Ala. 385; Morrisson v. The State, 84 Ala. 405.

<p>Appeal from Bullock Circuit Court.</p> <p>Heard bedore Hon. A. A. Evans.</p> <p>John C. Bradberry was convicted of murder, and he appeals.</p> <p>Counsel discuss the motion to quash the venire, but without citation of authority. They insist that the sheriff and not the clerk of the court should -serve its process, and cite the following. — Suddeth v. The State, 124 Ala. 82; Spicer v. The State, 69 Ala. 159.</p> <p>In support of the action of the court, the Attorney-General sets up the fact that the court made the . proper bench note orders, that the clerk failed to properly enter the same in judgment, and that the order of submission should be set aside, the judgment amended nunc pro tunc with writ of certiorari to bring it up as amended.- — Adams v. The State, 145 Ala. 680; Esc parte Jones, 61 Ala. 399,</p>

<p> Murder. </p> <p>1. Evidence; Testimony on Preliminary Trial; Predicate for hvtroduction. — Where the testimony showed only that the deputy sheriff; had been unable to locate the witness in the southern part of the county and in the neighboring part of Florida, and there was no evidence showing by inference even that the witnesses were out of the state, no sufficient predicate is shown for the admission of the written testimony of such witnesses taken down at the preliminary trial.</p> <p>2. Same; Prima/ry and Secondary. — While one may show as primary evidence that a letter was sent through the mail, the letter and the envelope containing it, are the best evidence of the source, contents and postmark, and until their loss is shown, other evidence in respect thereto is inadmissible.</p> <p>3. Trial; Request for Instructions; Request i/n Bulle. — Unless all the charges requested were good, the court will not be put in error for refusing them when the request is in bulk.</p>

Heard before Hon. Alto V. Lee. Will Medley was convicted of assault and battery with a weapon, and he appeals.

Heard before Hon. W. W. Haralson. Jack Sweat was convicted of assault with intent to murder, and be appeals. Tbe facts are sufficiently stated in tbe opinion of tbe court, as are tbe objections and exceptions to tbe evidence. Tbe following charges were refused to tbe defendant: “(A) Tbe court charges tbe jury that tbe bad character of tbe defendant for being rowdy and drinking cannot be looked to by tbe jury as detracting from his credibility as a witness.

Heard before Hon. W. H. Thomas. Fannie Martin was convicted before a justice of the peace for an assault and battery by throwing scalding water upon a person. From a conviction in the justice of the peace court she appealed to the city court where she was again convicted. From this judgment she appeals. The conviction before the justice of the peace was a nullity for want of jurisdiction. — Dan&ey v. The State, 68 Ala. 296; Section 4630, Code 1896.

<p>Appeal from Bullock Circuit Court.</p> <p>Heard before Hon. H. A. Evans.</p> <p>Hance Jackson was convicted of assault with intent to murded, and he appeals.</p> <p>Upon cross examination defendant’s counsel asked Dinah Wright if she did not state to Bachet Smith at Downs, Ala., just after he took some of her land on Mr. Laslie’s place last year and gave it to Hance Jackson, “that Hance Jackson had undermined you and that he was a damn rascal.” The counsel for defendant also asked the witness if she was not mad with defendant because Mr. Smith gave him some of her land. Objection was sustained to both of these questions.</p> <p>The court erred in refusing to permit the defendant to show on cross examination of the witness Wright statements that she had made concerning the defendant. — Barden v. Gunpingham, 136 Ala. 266; Fincher v. The State, 58 Ala. 215; Shepherd v. The State, 135 Ala. 12; Bullard v. Lambert, 40 Ala. 204; J ones v. The State, 141 Ala. 58.</p> <p>The court did not err in excluding the evidence offered. — Carpenter v. The State, 98 Ala. 31. One may not be 'impeached on collateral ,issues. — Grmoford <o. The State, 112 Ala. 1.</p>

Heard before Hon. J. C. Richardson. Raster. Mangum was convicted of an assault with intent to murder George Davis, and sentenced to a term of eight years, and he appeals. Upon the examination of one of the witnesses, the witness testified that when the first shot was fired the ball struck the witness in the left eye, and witness asked defendant what he shot him for, and defendant made no 'reply, but shot again, missing witness, and striking Frank Reese in the heel.

Heard before Hou. Williams Jackson. Frank Childers was convicted of assault and battery, and he appeals. The assault and battery is alleged to have been committed upon Louis Baggett.

Heard before Hon. W. W. Pearson. S. S. (alias) Babe Oates was convicted of assault with intent to murder Sam Johnson, and was sentenced to imprisonment in the penitentiary for a term of fifteen years, and he appeals: Change of venue should have been granted. — Semis v. The State, 84 Ala. 410; Hussey v. The State, 87 Ala. 121; Terry v. The State, 120 Ala. 286.

Heard before Hon. A. A. Evans. Hezzie Beverett was convicted of an assault with intent to murder, and appeals. The bill of exceptions recites that after the case was called for trial, and the state had announced ready, and after the defendant had announced ready also, he tendered to the court his plea of misnomer.

Heard before Hon. Henry B. Foster.' Vit Pumphrey was convicted of an assault with intent to commit a rape, and he appeals. Proof is insufficient to warrant a verdict of guilty if the conduct of the accused is upon reasonable hypothesis consistent with his innocense. — Jones (Jase, 90 Ala. 72; Qreepi v. The State, 68 Ala. 541.

Heard before Hon. T. L. Sowell. Will Wright was convicted of larceny from the dwelling house, and he appeals. The goods alleged to have been stolen were a pair of gray pants and one pair of shoes, the property of one Richardson. Exceptions to evidence are sufficiently set-out in the opinion. Two charges were refused to the defendant: (1) The general affirmative charge.

<p>Appeal from Gadsden City Court.</p> <p>Heard before Hon. Alto V. Lee.</p> <p>John White was convicted of larceny, and appeals.</p> <p>The Following charges were refused to defendant: (1 and 2) General affirmative charge (3) “If the jury believe from the evidence beyond a reasonable doubt that Henry Johnson carried the suit of clothes to the home of the defendant and left them Avith him of his own volition,, Avithout any fraud or inducement on the part of defendant, and the defendant carried the suit of clothes to Birmingham, you cannot convict the defendant.”</p> <p>NotAvithstanding the facts hypothesized in charge 3, the defendant might have been guilty of larceny. — Pearce v. The State, 124 Ala. 66.</p>

Heard before Hon. A. C. Howze. Arthur Welch was convicted of burglary, and he appeals.

Heard before Hon. A. A. Evans. John Stevens and another were convicted of arson and they appeal. The 1st count of the indictment charges the burning of a corn crib. The 2nd count charges the burning of a stable, and the 3rd count the burning of a barn, in each instance the property of Arrie Reynolds. The demurrer takes the point that the 1st count charges a felony, the 2nd and 3rd counts are misdemeanors.

Heard before Hon. A. C. Howze. J. T. McAllister was convicted of issuing a prescription for intoxicating liquors by signing the name of a licensed, physician thereto, and he appeals. The writing or issuing of a prescription is the sum and substance of the act, and the prescription should have been set out verbatim. — Langford v. The State, 45 Ala. 28; 22 Cyc. 354-K; 10 Ency P. & P. 481-L-2; 6 Words & Phrases, 552.

Heard before Hon. D. W. Speake. A1 Bidder was convicted of selling spirtuous, vinous or malt liquors without a license and contrary to law, and he appeals.

Heard before Hon. W. W. Haralson. Will Mosely was convicted of selling intoxicants to a minor, and he appeals. The facts are sufficiently set out in the opinion.

<p> Retailing Liquor Without License. </p> <p>1. Evidence; Demonstrative Evidence; Bottles. — In the absence of a proposal that the jury take the bottle out to the jury room to be smelled or drunk or tasted, it was not error to permit the bottle to be exhibited as evidence, nor was it improper to permit the jury to take said bottle with them into the jury room.</p> <p>2. Appeal; Objection; Necessity for. — Where the record shows that defendant excepted to a remark of the solicitor requesting the court to take a certain witness into custody and to detain him, but the record does not show whether the court sustained or overruled the objection, although the record states that the court did not order the witness talfen into custody, a sufficient objection is not shown to present anything relative thereto for the review of this court.</p> <p>3. Intoxicating Liquors; Sale; Agent; Offense. — One acting as the agent of the purchaser in procuring an unlawful sale of liquor is liable to conviction under the express provisions of General Acts 1907, p. 356.</p> <p>4. Charge of Court; Reasonable Doubt of Juror. — A charge asserting that if one of the jury have a reasonable doubt of the defendant’s guilt, the defendant could not be convicted, is a proper charge, and its refusal erroi;.</p> <p>5. Same; Applicability to Case. — A charge not presenting any proposition of law applicable to the evidence in the case is properly refused.</p> <p>6. Costs; Sentence For; Amount per Diem. — Where defendant is sentenced to hard labor to pay costs in criminal convictions the per diem allowance should be 40 cents per day since the passage of the act of 1907. (General Acts, Special Session 1907, p. 183.)</p>

Heard before Hou. A. P. Longshore. Will Tatum was convicted of betting at a game played by cards or dice or some device or substitute therefor at a public place, and he appeals.

<p>Appeal from Andalusia. City Court.</p> <p>Heard before Hon. B. H. Lewis.</p> <p>Dave Edgar was convicted of maliciously destroying a fense, and he appeals.</p> <p>Defendant and one Mauldin owned adjoining lands. Mauldin constructed a rail fence between the lands, which was burned, and for the burning of which defendant is prosecuted in this action. While Mauldin was upon the witness stand, defendant asked the witness if it was not a fact that the land run by Aeree and Miller was a compromise line, and agreed to by witness and defendant as a compromise after the fence was burned. Defendant also asked witness if the fence was built on his own land, and also if it were not a fact that the fence was on defendant’s land. The court sustained objections to each of these questions, and defendant accepted. Witness was asked if he knew the line dividing defendant’s line from that of Mauldin. The bill of exception recites that the state objected to the question, and the court announced the following ruling: “If Mauldin built a fence on the line which had been surveyed, and as he thought at the time to be the true line, and subsequently the line was surveyed again, and by said survey the fence was on defendant’s land, defendant was liable if he destroyed the fence.” And to this ruling the defendant accepted. All testimony in. reference to the survey and land lines run since the burning of the fence was excluded on motion of the state.</p> <p>The court charged the jury as follows:</p> <p>' “I charge you, gentlemen of the jury, as a matter of law, that to throw down a fence is to destroy it. Yes; the court will hold that to throw down a fence and to ‘scatter it from hell to breakfast,’ as and in the manner testified to by some of the witnesses, is a destruction of .it within the meaning of the law, and that if the jury believe beyond a reasonable doubt that defendant destroyed this fence by throwing it down or burning it, as charged, they should find him guilty, although a portion of it is shown to be a partition fence, if they should find that it was a patition fence.”</p> <p>The following charges were refused to the defendant:</p> <p>“(1) I charge you, gentlemen of the jury, that if you believe, from all the evidence, that the fence alleged to have been destroyed was on the land of defendant you should find defendant not guilty.</p> <p>“(2) I charge you that if you believe, from all the evidence, that the fence alleged to have been destroyed was erected on the land it separated, the land of defendant from the land of Mauldin, you should find defendant not guilty.</p> <p>“ (3) If you believe, from all the evidence, that Mauldin erected the fence alleged to have been destroyed on defendant’s land, even though he believed at the time that he was erecting it on his own land, you should acquit defendant.</p> <p>“(4) If you believe, from all the evidence, that Mauldin erected the fence alleged to have been destroyed on defendant’s land, even though he believed at the time that he was erecting it on the line separating his own land from that of defendant, you should acquit the defendant.”</p> <p>“(6) If you find, from the evidence, that part of the rails that went into the fence in question were taken from an old fence on defendant’s land, then defendant had a right in the fence, and' you should acquit him.</p> <p>“(7) Affirmative charge.</p> <p>“(A) If you believe, from the evidence, that the fence said to have been destroyed was a partition fence, you must acquit the defendant.</p> <p>“(B) If you believe, from the evidence, that the fence said to have been destroyed was the old fence torn down by Mauldin and again erected by him on the land of defendant, even though new rails were added, you should acquit him.</p> <p>“(C) If you believe, from the evidence, that the fence said to have been destroyed was on the land of defendant, you should acquit him.</p> <p>“(D) If you believe, from the evidence, that the old fence testified about was moved by Mauldin and again erected by him on the 'line testified by Aeree, then you should acquit him.</p> <p>“(E) I charge you that the fence said to have been destroyed was a. fixture, and belonged to the owner of the soil upon which it was located.”</p> <p>“(H) If you believe, from the evidence, that defendant was the owner of the fence which was burned at the time of Acree’s survey, and that said fence was on the line, and on the side of the old line testified about on which defendant’s land was and is, and on or near the original or old line testified about then and in that event if from Acree’s line it was ascertained and determined that it was on Mauldin’s land, you must find defendant not guilty.”</p> <p>The pivotal inquiry in this case was whether the fence was on the land of the defendant or the prosecutor. The court erred in excluding evidence as to the ownership. — Wheeler v. The State, 109 Ala. 56; Sec. 5624, Code 1896. Section 3898 applies in this case. — Garrett v. Sewell, 95 Ala. 456. The charges requested by the defendant should have been given. — Boyctt v. The State, 132 Ala. 23; Wheeler v. The State, supra; s. c. 115 Ala. 22; Hill v. The State, 104 Ala. 64.</p> <p>The offense charged is one against possession rather than ownership and the court properly excluded evidence of ownership. — Wallace v. The State, 124 Ala. 87; Hill v. The State, 104 Ala. 64. On the same authorities, the evidence of the surveys were immaterial. The court properly refused the requested charges. — Wheeler v. The State, 114 Ala. 22. The defendant is not in position to question the action of the court with reference to instructing the jury as to sealing their verdict. — Dickens v. The State, 39 South. 14; Thomas v. The State, 43 South. 371.</p>

Court. Heard before Hon. W. W. Haralson. Mat Nearen was convicted of trespass after warning and appeals. On the facts in this case, the charge of trespass after warning- cannot be sustained. — Watson v. Mansill, 76 Ala. 600; Bohanan v. The State, 73 Ala. 47; Lawson, et al. v. The State, 100 Ala. 7; Watson v. The State, 63 Ala. 20. It follows from these authorities that the court erred in refusing the affirmative charge.

Heard before Hon. M. B. Abercrombie. Anderson Harris was convicted of a violation of Acts 1903, p. 345, in amendment of Code 1896, § 4730, making punishable a person who, with intent to defraud his employer, enters into a contract for the performance of any act or service, and thereby obtains money or other personal property from him, and he appeals.

Heard before Hon. A. C. Howze. Sophie Jackson was convicted of perjury, and she appeals.

Heard before Hon. W. H. Thomas. Will Barclay was convicted of hunting on the land of another without the written permission of the owner, or his agent. He defended on the theory that he had the written permission of the tenant in possession of the land.

Heard before Hon. Ti-iomas W. Coleman, Jr. Charles E. Thomas was convicted of an attempt to procure an abortion, and appeals.

Heard before A. C. Howze. Jackson Jones was convicted of living in adultery or fornication with a white woman, being himself a. negro, and appeals. The facts are sufficiently set out in the opinion of the court. The general charge was requested by the defendant, and refused by the court.

Smith as chancellor of the southeastern chancery division. Habeas corpus by James Davis. From an order discharging petitioner the state appeals. The State had the right of appeal. — Burr v, Foster, 132 Ala. 41. The register properly certified the transcript. — State v. Fuller, 147 Ala. 164. The chancellor ought not to have discharged the petitioner on the facts stated. — Ex parte Gibson, 89 Ala. 174; Brown v. The State, 109 Ala. 70.

Hoard before Hon. S. N. Rowe. Application by J. W. Pippin on habeas corpus for bail. From an order denying petitioner bail, he appeals. The continuance of the cause without the consent of the defendant for more than ten days rendered the warrant functus officio': — Section 7594, Code 1907.

<p>Appeal from Bullock Circuit Court.</p> <p>Heard before Hon. A. A. Evans.</p> <p>Application by George Chappell for his discharge on habeas corpus from imprisonment by virtue of a mittimus issued by a justice of the peace on a criminal charge. From an order denying the petition, George Chappell appeals.</p> <p>The petition was as follows:</p> <p>“To the Honorable A. A. Evans, Judge of the Third Judicial Circuit. Your petitioner, George Chappell, respectfully represents unto your honor as follows: (1) That he is imprisoned in the county jail of Bullock county, Ala., by J. G. Carmichael, as sheriff of said county, under and by virtue of a mittimus issued out of the justice court of J. K. Franklin, justice of the peace for said county, on a charge of delivering spirituous, vinous, malt, or intoxicating beverages or liquors, the sale of which is prohibited by law within Bullock County, Ala., the same being a prohibition district, a copy of which said mittimus is hereto attached, as well as a copy of the affidavit and warrant in said cause. (2) Your petitioner further represents unto your honor that his detention as aforesaid is unlawful, for the following reasons, to wit: First. Said affidavit fails to charge any offense known to the laws of Alabama. Second. The evidence in said cause is insufficient in law to warrant the detention of the petitioner. Third. Said affidavit purports to be made and warrant issued under and by virtue of an act of the Legislature of Alabama approved July 9, 1907, entitled An act to prohibit the shipment, transportation, delivery or soliciting of orders for the sale of any spirituous, vinous, malt or intoxicating liquors, beverages or bitters into any prohibition district in the state of Alabama,’ and said act of the Legislature is obnoxious to the provisions of section 45, article 4, of the Constitution of Alabama, in that said act or law contains two or more subjects, and also that the subjects of said act or law are not clearly expressed in its title. Fourth. The evidence in said cause does not make out a case of the violation of said act. Fifth, the delivery of spirituous, vinous, and intoxicating liquors, etc., within any prohibition district in the state of Alabama, is not clearly expressed in the title of said act.” Then follows the usual prayer.</p> <p>The witnesses examined on behalf of the state on the preliminary trial are set out, and the affidavit, warrant, and mittimus are attached as exhibits. The usual mandate was issued to the sheriff to have the body of petitioner before the judge, with the cause of his detention, etc. The sheriff made the return as follows:</p> <p>“To the Honorable A. A. Evans, Judge of the Third Judicial Circuit of Alabama: Now comes J. G. Carmichael, sheriff of Bullock county, Ala., and herewith produces the body of George Chappell, in response to the above writ of habeas corpus, and for answer thereto says that he has and holds the said- George Chappell in the jail of Bullock county, Ala., as sheriff thereof, under and by virtue of a mittimus issued by J. K. Franklin, justice of the peace, on the charge of delivering' (Spirituous-, tvinous, malt, or intoxicating liquors, beverages, or bitters in Bullock County, Ala., a prohibition district in said state, a copy of which said mittimus is hereto attached and made a part hereof, and that said George Chappell has never tendered to said sheriff any bail bond, as required by said mittimus or by law, for his release; and said sheriff also herewith presents a copy of the affidavit and warrant in said cause, which is hereto attached and made a part hereof.</p> <p>“This March 6, 1908.</p> <p>“J. G. Carmichael,</p> <p>“Sheriff of Bullock County, Ala.”</p> <p>The affidavit, warrant, and mittimus so attached are as follows:</p> <p>“The State of Alabama, Bullock County. Before me, J. K. Franklin, a justice of the peace in and for said county, personally appeared A. L. Hixon, who, being duly sworn, deposes and says on oath that in said county he has cause to believe and does believe that, in his opinion, in said county, on or about the 11th day of February, 1908 George Chappell delivered spirituous, vinous, malt, or intoxicating liquors, the sale of which is prohibited by law in said county, against the peace and dignity of the state of Alabama.</p> <p>“Sworn to and subscribed before me this 24th day of February, 1908.</p> <p>“J. K. Franklin, Justice of the Peace.</p> <p>“The State of Alabama, Bullo-ck County. To Any Lawful Officer of Said County — Greeting: You are hereby commanded to arrest George Chappell and bring him before me, J. K. Franklin, to answer the state of Alabama on a charge of delivering spirituous, vinous, or malt liquors, intoxicating liquors, beverages, or bitters, in Bullock county, Alabama, a prohibition district in said state. And have you then and there this writ, with your indorsement thereon.</p> <p>“Witness my hand this 24th day of February, 1908.</p> <p>“J. K. Franklin, Justice of the Peace.</p> <p>“The State of Alabama, Bullock County. To the Jailer of Bullock County: On examination of George Chappell, charged with the offense of delivering spirituous, vinous, malt, or intoxicating liquors, beverages, or bitters, the sale of which is prohibited by law in Bullock county, it appearing that such offense has been committed, and that there is sufficient cause to believe that George Chappell is guilty thereof, you are therefore commanded to receive him into your custody, and detain him until legally- discharged.</p> <p>“Dated this 26th day of February, 1908.</p> <p>“J. K. Franklin, J. P ”</p> <p>The following were the agreed facts: That said George Chappell was a citizen of Union Springs, Bullock county, Ala., and on the 10th day of February, 1908, he purposed going to Montgomery, Ala., and so informed one Jim Blackmon, who then and there gave to said George Chappell in Union Springs, Bullock county, Ala., $1, with the request that the said Chappell purchase for him in Montgomery two quarts of whisky and bring the same back to him at Union Springs. That on said day said Chappell went to Montgomery, and there purchased said whisky for said Jim Blackmon, and brought the same to Union Springs, and on the 11th day of February, 1908, he delivered the same to Jim Blackmon in Union Springs.</p> <p>Counsel discusses the constitutionality of the act under which the prosecution was brought, but does not discuss the points decided in the opinion.</p> <p>Oounsell discuss the constitutionality of the act but do not discuss the questions decided.</p>

Heard before Hon. A. A. Coleman. Action by W. H. Sawyer against the Birmingham Railway Light & Power Company for personal ^injuries received in a collision. Judgment for plaintiff and defendant appeals. The plaintiff was an employe and not a passes ger under the proof in this case. — 6 Cyc. 543; K. G. B. B. Go., v. Salmon, 11 Kan. 83; Bussell v. Hudson River B. B. Go. 17 N. Y. 134; TNc7c v. Neto York Central, 47 Am. Rep. 36; 94 Am. St. Rep. 125; 79 Am. St. Rep. 812.

Heard before Hon. S1. H. Sprott. Action by Ernest B. Godfrey, as a passenger against the Alabama Great Southern Railroad Company for personal injuries alleged to have been caused by the unsafe condition of. a pass way along defendant’s right of way along which he was travelling in the night time, after having been discharged as a passenger at defendant’s depot. There was judgment for plaintiff and defendant appeals.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. A. A. Coleman.</p> <p>Action by Josephine Nowlin against the Southern Railway Company for negligent failure to inform her as to the best and quickest route of travel. Judgment for plaintiff for $1,500, and defendant appeals.</p> <p>The complaint was in the following language: “Plaintiff claims of defendants $1,999 as damages, for that heretofore ,to Avit, on the 16th day of June 1904, defendant ivas a common carrier of passengers for hire and reward by means of trains upon railways, and defendant and companies Avith connecting, lines of railway were engaged in the business of common carriers of passengers from Birmingham, Ala., to Lumberton, N. C., and there Avere two routes over Avhich a passenger could travel by rail from said Birmingham to said Lumberton, over a part of both of which routes defendant operated trains for the carriage of passengers; that at said time defendant maintained in said Birmingham an office for the purpose, among others, of giving information to intending passengers in reference to routes of travel, and plaintiff not knowing the best and quickest routes of travel from said Birmingham to said Lumberton, and being in delicate health, through her agent, proposing that plaintiff travel from said Birmingham to said Lumberton, over one or the other of said routes, over either of which plaintiff would be defendant’s passenger at least part of the way, inquired of defendant at its office in said Birmingham the best and quickest route from said Birmingham to said Lumberton, and in connection with said inquiry informed defendant of said condition of her health. It therefore became and was defendant’s duty to plaintiff to use diligence to correctly inform plaintiff as to said route; but, notwithstanding said duty, defendant at said office told plaintiff, through her said agent, that the route via Asheville, N. C., was the quickest and best route to said Lumberton, and, acting upon what defendant so told plaintiff, she did purchase a ticket from the common agent of the defendant and other railways for passage over said route via Ashe-ville, a part of the purchase price of which moved to the defendant, and did on, to wit, the 16th day of June, 1904, and the - succeeding day, travel over said, route, over a part of which route she was carried by defendant as its passenger, and over another part or parts by connections of defendant’s railway. Plaintiff avers that said route via Asheville, N. C., was not the best and. quickest route to said Lumberton from said Birmingham, but was slower and less desirable than another route, to wit, the route via Atlanta, Gra.; and plaintiff avers .that as a proximate consequence of going by the said route via Asheville she was greatly delayed in her journey, was required to change cars a great number of times, towit, four times, was carried by freight train or mixed train a long distance, to wit, LOO miles, was compelled to stand upon her feet for a long time, was greatly shaken by the rongh or irregular movements of the train, and, being in delicate health, said condition of her health Avas greatly aggravated, she was made sore and sick, suffered great mental and physical pain, lost much time, her health and physical stamina were greatly and permanently impaired, and she was put to great trouble, inconvenience, and expense for medicine, medical attention,, care, and nursing in or about her efforts to heal and cure her said wounds and injuries. Plaintiff alleges that she went by the said route via Asheville as aforesaid, and suffered said injuries and damages, by reason and as a proximate consequence of the negligence of the defendant, in this: Defendant negligently misinformed plaintiff, through her agent as aforesaid, that said route via Asheville Avas the best and quickest route from said Birmingham to said Lumberton.” The above is the count as amended.</p> <p>The following demurrers were filed thereto: “(1) Said count does not state facts sufficient to constitute a cause of action against this defendant. (2) It fails to allege or shoAV that there was a sufficient, or any, consideration that passed from plaintiff to defendant which Avould make defendant liable in damages, even through the information given was false. (3) Said count fails to allege or show that plaintiff paid any railroad fare to defendant, or that by reason of, or as a consequence of, said representations any contract was entered into between plaintiff and defendant. (4) It fails to sufficiently aver or show that defendant, or its agent or servant, acting within the line or scope of his employment in that behalf, was guilty of negligence proximately causing the injuries complained of, and does not sufficiently show any breach of duty by the defendant or its said agent of which plaintiff can complain.”</p> <p>The evidence for plaintiff tended to show that, the way she was routed by the ticket sold her, she had to make four or five stops and as many changes of cars, in one or two instances taking a freight to make connections, and that she was two days in making the trip, having to stand a part of the time on account of the crowded condition of the train; that when she started on the trip she was in poor physical condition; and that she communicated this fact to the agent from whom she purchased the ticket. The physicians testified that her condition was worse after the trip than before it.</p> <p>The eighth assignment of error is in the following-language: “The court separately and severally erred in refusing to give each of defendant’s requested written charges, numbered, respectively, 1, 2, 6, 7, 8, 8%, 9, and 11.”</p> <p>An intending passenger cannot rely blindly on the statements of others but must use reasonably efforts to inform himself of routes from official information. — Hutchinson on Carriers, sec. 604 to 607. No direction given to the passenger by the agent or carrier will justify the passenger in incurring a plain hazard. — S. & N. Ala. Ry. Go. v. Schaufler, 75 Ala. 136; Hutchinson on Carriers, sec. 661, note 2. The representation of the agent was not a part of the res gestae of the contract of transportation, and is not binding on the company. — R. R. Go. v. Raise, 72 Ala. 112; Acherson R. R. Go. v. Gamersop, 66 Fed. 709. The damages are excessive. — Bir E. Go. v. Ward, 124 Ala. 409.</p> <p>The bill of exceptions should be stricken. — Acts 1888-9, p. 801; Secs. - 616-618, Code 1896. The assignment of error as to charges is too general. — 141 Ala. 551; 186 Ala. 633; 37 South. 395; 38 South. 751.</p>

Heard before Hon. J. C. Richardson. Action by J. S. Dilburn, administrator, against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. The exceptions to evidence and the nature of the action áre sufficiently stated in the opinion of the court. The following pleas were filed to the complaint: (1) The general issue.

Heard before Hon. S. H. Sprott. Action by P. H. Metcalf, as administrator, against tbe St. Louis & S'an Francisco Railroad Company for the death of plaintiff’s intestate. From a judgment for defendant, plaintiff appeals.

Heard before Hon. Charles A. Senn. Action by Harvey Harden against the Birmingham Railway, Light & PoAver Company, Judgment for plaintiff and defendant appeals.

<p> Action for Injury to Passenger While Alighting. </p> <p>Carriers; Passengers; Injuries; Oomplamt; Negligence. — It is not every increase in the speed of the car, or the starting of the same, whether with or without a jerk that is negligence, and hence, a complaint founded on that cause should allege that it was negligently done, and is demurrable if it fails to do so.</p>

Heard before Hon. W. W. Haralson. Action by N. W. Hammond as administrator against the Alabama Consolidated Coal & Iron Company for the death of his intestate alleged to have been caused by a rock falling from the quarry walls. From a judgment for plaintiff defendant appeals. Counsel discuss assignments of error but without citation of authority. Counsel discuss assignments of error, but without citation of authority.

Heard before Hon. J. C. Richardson. Action by William Pear as administrator against the Cedar Creek Mill Company for damages for the death of his intestate alleged to have been caused by the collision of a car and engine on a railroad track of defendant. Judgment for defendant and plaintiff appeals.

Heard before Hon. C. W. Ferguson. Action by Lillian McWhorter, administratrix of W. H. McWhorter, deceased, against the Alabama Great Southern Bailroad Company, for damages for the death of said decedent. From a judgment for plaintiff, defendant appeals.

Heard before Hon. A. O. Lane. Action by Sidney Sharp against the Sloss-Sheflfteld Steel & Iron Co., for damages for injuries received in a mine of defendant by reason of a gas explosion. Judgment for plaintiff and defendant appeals. Legal principles are not determined by the opinion of witnesses. — Ward v. Shirley, 131 Ala. 558; Alexander v. Eadley, 96 Ala. 220; Southern Ry. Co. v. Posey, 124 Ala. 486; Montgomery & West Point Ry.

Heard before Hon. James J. Bay. Action by Ann J. Garrett, administratrix, against tbe Mascot Coal Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. A. D. Sayre. Action by Joe Niles against the Alabama Chemical Company. From a judgment for plaintiff, defendant appeals. From what is said in the opinion concerning the complaint and demurrers thereto, it is deemed unnecessary to set them out.

Heard before Hon. William Jackson. Action by M. D. Crotwell against the Tennessee C. I. One who employs a minor child without the consent of his father, and without such consent places him to work at a dangerous place, or upon a dangerous work, is liable to .the father for any injury suffered by the minor as the result of being placed at such work. — Williams v. L. & N. R. R. Go., 91 Ala. 35, 9 So. 77; Marbury Lumber Company v. Westbrook, 121 Ala. 179, 25 So. 914; ■ Dimmick…

Heard before Hon. John P. Lackland. Action by Braxton B. Hobdy against Yastine J. Hurlong, doing business as tbe Manistee Mill Company for injuries inflicted upon plaintiff while walking on defendant’s track. Front a judgment for plaintiff defendant appeals. Counsel discuss tbe various amendments to tbe complaint and cite authorities in support of tbe proposition that they were well made.

Heard before Hon. W. W. Haralson, Action by J. W. Darwin and another against the Southern Railway Company for damages for the destruction of property by fire. From a judgment for plaintiffs, defendant appeals. The cause was tried upon counts 3 and 4, which allege simple negligence and the destruction of the property therein described by means of fire negligently communicated from one of the locomotives being operated by defendant on its said railroad.

Heard before Hon. William S. Anderson. Action by Robert M. Sands, as Administrator against the Louisville & Nashville Railroad Company, for damages for causing the death of his intestate in a crossing accident. Judgment for defendant and plaintiff appeals. The court should have given the written charge requested by plaintiff.— M. & C. B. B. Go. v. Martin, 117 Ala. 383; Southern By. Go-, v. Crenshaw, 34 South. 916.

Heard before Hon. A. O. Lane. Action by Annie L. Howie against the Western Union Telegraph Company, for 'failure To promptly 'deliver telegram. Judgment for plaintiff and defendant appeals. The action was in tort. No damage in estate was alleged and no. tolls were paid. The demurrer therefore, should have been sustained. — Foster’s Case, 23 South. 581; Westmoreland’s Case, 44 South. 382; Blount’s Case, 126 Ala. 105; Quick’s Case, 125 Ala. 555.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. Charles A. Senn.</p> <p>Action hy Milton H. Collins against the Western Union Telegraph Company, for failure to deliver telegram. Judgment for plaintiff in the sum $350, and defendant appeals.</p> <p>Plaintiff could not ¡recaver for mental anguish. — Blount’s Case, 126 Ala. 105; Westmoreland’s Case, 44 S'outh. 382. The damages sought here are too remote. — Foster’s Case, 23 South. 581; Quick v. L. & N., 125 Ala. 553. On the above authorities the complainant was not entitled to recover any sum greater than his expenditure for hack hire.</p> <p>Loss to estate was shown, and hence recovery may be had for mental anguish. — E. T. V. & C. R. R. Co. v.' Lockhardt, 79 Ala. 317; L. & N. v. Dancey, 97 Ala. 30; 73 Tex. 422; 28 L. R. A. 72; 54 Wis. 432. The court will indulge all reasonable presumptions in support of the trial court’s action in refusing to grant a new trial. — Cobb. v. Malone, 92 Ala. 630; McLendon v. McKissack, 38 South. 1020.</p>

Heard before Hon. H. B. Foster. Action by R. M. Leland against the Western Union Telegraph Company, for failure to deliver telegram. Judgment for plaintiff in the sum of $500, and defendant appeals. Under the facts in this case, no damage was shown from the failure to deliver the telegram. — Chapman v. W. U. Tel. Co., 88 Ga. 763; McAllen v. W. U. Tel.

Appear from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Action by Movie Heathcoat against the Western Union Telegraph Company, for failure to deliver telegram. From a judgment for defendant plaintiff appeals. The facts in this case either show an agency or a ratification by the principal of the acts constituting the agency. — Tenn.

Heard before Hon. D. W. Speake. Action by Windham & Co. v. Stephenson & Alexander, for the destruction of a mortgage lien on certain property, the facts concerning Avhich sufficiently appear in the opinion of the court. Judgment for defendants and plaintiff appeals. The defendants had notice of the existence of the mortgage. —Truss v. Harvey, 120 Ala. 636. The court erred in giving the affirmatÍAre charge for the defendants.

Heard before Hon, S. L. Brewer. Action by Joe Williams against F. M. Pruett and others, on Pruett’s bond as constable. Judgment for plaintiff, and defendants appeal.

Heard before Hon. J. W. Mabry. Action by Mary Dillard against Dallas county for damages for changing the grade of a public road leaving her premises upon a perpendicular embankment without ingress or egress for vehicles. Judgment for plaintiff and defendant appeals. The only question presented by this case is whether or not counties are liable for injury done property by a change in the grade of a road where no property is taken.

Heard before Hon. G. K. Miller. Action by A. F. Jones against the North Alabama Coal, Iron & Railway Com j any for damages for the improper retention of water in a stream. From a judgment for plaintiff, defendant appeals.

<p>Appeal from Clarke Circuit Court.</p> <p>Heard before Hon. Norman Gunn, Special Judge.</p> <p>Action by Martha Pugh and others against the Union Naval Stores Company, for trespass to realty. Judgment for plaintiff’s and defendants appeal.</p> <p>The court erred in declining to require the attorneys to show their authority to represent Mamie Chapman. — Sec. 594, 1896; Brewer v. Watson, 71 Ala. 299. The court erred in admission ■of evidence as to agency. — Robinson v. Aetna■ Co., 128 Ala. 480; Ala. Co-, v. Long Clothing Co., 122 Ala. 967; Learned'Letcher Lbr. Co. v. Ohatchie Lbr. Co., Ill Ala. 453; Postal Tel. Co. v. Lenoir, 107 Ala. 640; St. L. & T. R. Packer Co. v. McPeters, 124 Ala. 451. The court erred in refusing to permit the mortgages to be introduced in evidence, and in permitting the introduction of the chancery file, in evidence. — Hough v. McLeod■, 76 Ala. 419; Fields v. Clayton, 117 Ala. 538; 20 A. é E. Ency of Law, pp. 1012 and 1013; Bank v. Pullin, 129 Ala. 638. The counts are for trespass by the corporation, and the evidence discloses acts of trespass, by an agent. —Cent, of Ga. Ry. Co. v. Freeman, 140 Ala. 581; City Del. Co. v. Henry, 139 Ala. 161; Southern B. T. & T. Co. v. Francis, 109 Ala. 224. The complaint declares for a continuing trespass; the evidence shows several distinct and separate trespasses. — Abercrombie v. Wymdham, 127 Ala. 129.</p> <p>The court properly allowed the amendment. — Loioery v. Rowland, 104 Ala. 420; Godbold v. Blair, 27 Ala. 59. Section 3331, Code 1896. The plaintiffs had a right to join their co-tenant as a party plaintiff without showing any especial authority therefor. — Daughdrill v. Daughdrill, 108 Ala. 321. — Section 594, Code 1896. The fact of agency was a question for the jury in this case.- — 61 Ala. 139; 52 Ala. 606; 49 Ala. 119. Defendant cannot justify its trespass under a void deed, especially where they had notice, and a pending suit is notice.- — 100 Ala. 421; 88 Ala. 557; 75 Ala. 393; 62 Ala. 550. The tort was committed intentionally and with force, and trespass is the proper remedy. — 104 Ala. 514; 59 Ala. 457; 6 Cyc. 86.</p>

<p>Appeal from Clay County Court.</p> <p>Heard' before Hon W. J. Pearce.</p> <p>Action, in case by J. W. Sparks against John D. McCreary. From a judgment sustaining demurrers to the complaint, plaintiff appeals.</p> <p>The original complaint is as follows: “(1) Plaintiff claims of defendant $5,000 damages, for that heretofore, to wit, on March 23, 1906, plaintiff was engaged in the mercantile business in the town of Lineville, Ala., carrying a general line of goods, wares, and merchandise, which plaintiff was selling principally for cash, and plaintiff had been engaged in said business for about two years prior .to said date, and was dependent upon said business for a livelihood for himself and family; that on or about March 23, 1906, defendant did come into plaintiff’s store where and while plaintiff and three or four clerks were waiting on customers and selling plaintiff’s goods, wares, and merchandise to the customers who were in plaintiff’s store, and in the presence of many customers, defendant did wrongfully forbid plaintiff and his clerks from selling plaintiff’s said goods, wares, and- merchandise, and did wrongfully forbid the customers Avho were in plaintiff’s store from buying plaintiff’s said goods, wares, and merchandise, stating to said customers that he would take down the names of all parties Avho made purchases, and that they would have to attend court; and, on being asked by plaintiff by what authority he forbade the sale of the goods, wares, and merchandise of plaintiff, defendant replied, by the authority of the telegram Avhich he had received from Dougherty-Ward-Little Company, Avhich telegram defendant read to and. in the presence of plaintiff, his clerks and customers. And plaintiff avers that on account of the action of defendant that plaintiff’s customers stopped buying, and he and his clerks were thereby forced to stop selling, said goods, wares, and merchandise; plaintiff’s said customers leaving his said store, to the damage of piaintiff as aforesaid.’ (2) This count is similar in fact and in statements 'to count 1, except that it is alleged that defendant, without legal authority and without process of law, did wrongfully, willfully, wantonly, and maliciously do the things complained of in the first count, and as a result the customers were frightened from his store; some leaving without paying for the goods they had already • purchased, and others, who were prospective purchasers, being turned away before reaching the store. The third count is similar in all respects to the second.</p> <p>Demurrers were interposed to these counts as follows: “They are uncertain in their averments. They do not .show that the act of the defendant was the proximate cause off the plaintiff’s alleged loss. The averments therein are too general. The averments of wrong are mere conclusions of the pleader. For aught appears, plaintiff was in failing circumstances, and the acts .of defendant were legitimate and legal. For that the cause for damages is for prospective loss, and said damages are speculative: For that it does not appear that the injury of plaintiff’s business was permanent. For that it is not shown that plaintiff was making any profit in his business at the time of the alleged act. These demurrers were sustained, and counts 4, 5, 6, 7, and 8 were added. Count 4 contains the same allegations as to the damnifying act contained in count 1, with the additional averment that as a natural consequence of defendant’s act custom was driven out of plaintiff’s place of business, and plantiff thereby lost the custom and the profits from its sale. Count 5 is the same as 4, except that it alleges that the wrongs complained of were willfully, wantonly, and maliciously done. Count 6 is the same as counts 1 and 4. Count 7 alleges the same damnifying act, with the additional averment of the amount invested in the business, the average sales per year, and a loss of the profits therein. Count 8 is the same as 7, with the exception that the acts alleged to have been done were willfully, wantonly, and maliciously done. The same demurrers were refiled to these counts, with additional grounds not necessary to he here set out, as they are but an enlargement of the former grounds.</p> <p>One injured in his person or property rights is entitled to compensation therefor. — Section 13, Constitution 1901; 8 A. & E. Encv of Law, p. 544. General damages are those naturally resulting from the injury complained of, and need not be specifically claimed. — Dowdell v. King, 97 Ala. 635; Ross v. Malone, 97 Ala. 529; Louis v. Paul, 42 Ala. 136. An improper claim-for damages cannot be reached by demurrer.- — Gen. of G. Ry;. Go. v. Keyton, 41 South. 921. Punitive damages need not be specially pleaded. —A. G. S. v. Arnold, 84 Ala. 59. When attended with circumstances of aggravation, or done wantonly or maliciously, a wrongful act may he compensated in punitive damages. — Garrett v. Sewell, 108 Ala. 521; Snedicor v. Pope, 39 South. 324. Profits earned under like circumstances and conditions are admissible- in evidence to determine the value of the business and the damages sustained. — Smith v. Dinldnspeil, 91 Ala. 528; 80 111. 574; 11 Mich. 542; G. of G. Ry. Go. v. Keyton, stipra. The intent was not essential but goes only to damages. — Wom&ch v. Byrd, 51 Ala. 505; Thorn v. Kemp, 98 Ala. 425.</p> <p>Where demurrer is sustained generally and the party declines to plead over, if the demurrer is well signed on any ground the judgment will be affirmed. — Guilford v. Kendall, 42 Ala. 651; McCreary v. Jones, 96 Ala. 592. Under this rule, several of the grounds of demurrer assigned Avere Avell sustained, and an affirmance should folloAv. In any event, the damages are too remote and speculative as grounds of recovery. — Southern Ry. Co. v. Coleman, 44 South. 846; Reed Lbr. Go. v. Lewis, 94 Ala. 26; Moulthropi v. Hyatt, 105 Ala. 493; Gunt&r v. Beard, 93 Ala. 227; Harper v. Weeks, 89 Ala. 577; Brigham & Co. v. Carlisle, 78 Ala. 243; 8 A. & E. Ency of LaAV, 616.</p>

Heard before Hon. Saéeold Berney, Action by W. A. Christian against Wylie Denmark for fraud and deceit for misrepresenting the condition of the titles to land, the growing timber on which defendant sold to plaintiff. Judgment for defendant and plaintiff appeals. The court erred in giving the affirmative charge for the plaintiff on the theory that the fraud was discovered more than a year before the bringing of this suit. — Henry v Allen, 93 Ala. 197; 25 Cyc. 1193; 59 Am.

-Bessemer,. City Court. Heard before Hou> William Jackson., Trover by Francis Sullivan against Mac Clay and another for the conversion of a diamond ring. From judgment for plaintiff, defendant appeals. The complaint was in code form, and against Mac Clay and the Citizens’ Bank.

Clair Circuit Court. Heard before Hon. A. H. Alston. Action by Marion Swearingen against the Pell City Manufacturing Company for false imprisonment. From a judgment for plaintiff, defendant appeals.

Heard, before Hon. A. A. Coleman, Action for Sallie S. Morgan against Frank G. Sheppard for injuries received on leased premises owned bv defendant. From a judgment for defendant, plaintiff appeals.

Heard before Hon. John H. Miller, Special Judge. Trover by H. E. Scheinert and wife against the Louisville & Nashville Railroad Gompany for the conversion of a trunk and contents. From a judgment for plaintiffs, defendant appeals.

Heard before Hon. T. L. Sowell. Action by John M. Culberson against the Empire Coal Company for damages for an assault and battery committed upon bim by other passengers while a passenger himself on one of defendant’s cars. From a judgment for defendant, plaintiff appeals.

Heard before Hon. H. A. Pea.rce. Trover by Ed. Nix against F. Y. Hall. Judgment for plaintiff, and defendant appeals. Tbe facts are sufficiently stated in tbe opinion of tbe court. Tbe court refused a charge to defendant that, if tbe jury believe tbe evidence, they cannot find judgment against defendant for more than $40.90, for interest and damages. He gave a charge for plaintiff to find fob the plaintiff, if they believe the evidence, for $124.90 and interest.

<p> Ejectment. </p> <p>1. Aclmoioledgments; Authority to Take; Mayor. — Where the charter of a city provides that the mayor of the city is vested ex officio with and may exercise in the city all the authority of a justice of the peace, such mayor may take acknowledgments to conveyances under the authority of section 1799, Code 1886.</p> <p>2. Same; Certificate; Sufficiency. — Section 1802, Code 1896 (See. 3361, Code 1907) does not require the officer taking the acknowledgment to certify to his official character, or to his territorial jurisdiction and a certificate of acknowledgment to a deed is not invalid because the officer taking it failed to state the name of the city of which such officer was mayor.</p> <p>3. Evidence; Judicial Notice; Municipal Officer. — The courts of a county in which a city is situated will take judicial notice of who is or who was at a particular time mayor of such city.</p>

Heard before Hon. H. A. Pearce. Action in ejectment by Albert Holman against Amos Russell and another. There was judgment for plaintiff and defendant appeals. The acknowledgement taken jointly relates only to the signature of the grantor Russell and not to his wife. — Secs. 982-984 and 2034, Code 1896.

Heard before Hon. John H. Disque. Common law ejectment by the First National Bank of Gadsden against W. J. Alford. Judgment for plaintiff and defendant appeals.

Heard before Hon. J. J. Ray. Action by the Pratt Consolidated Coal Company against the Tennessee C. I. & R. R. Co., in unlawful detainer. Judgment sustaining demurrer to a plea setting-up a lease and judgment thereon for plaintiff, defendant appeals. The additional term granted by the lease does not ipso facto tie the lands up in a lease for a term longer than twenty years, since it is left to some affirmative action on the part of the lessee. — Hart v. Hart, 22 Barb. 606.

Heard before Hon. W. W. Haralson. Ejectment by James L. Coulson and others against Felix Scott and others. From a judgment for plaintiffs, defendants appeal. Plaintiff claimed through a. deed from Isaac Clarke and Atúfe to Jerusha Clarke, of date July 18, 1838, and from Jerusha Clarke, avIjo became Jerusha Gullatt, and her daughter, Juliet Gullatt, who become Juliet Coulson, the mother of the present plaintiff.

Heard before Hon. H. A. Pearce. Action by Lucy Watt against W. B. Killebrew for tbe recovery of land. Judgment for defendant and plaintiff appeals. Possession of a judgment debtor is not adverse to the purchaser who buys at a sale under execution on a judgment against the debtor. — Sellers v. Farmer, 151 Ala. 487. A vendee of the debtor occupies no higher or better ground than the debtor himself.

Heard before Hon. W. W. Pearson. Unlawful detainer by Emma L. Smoot against L. E, Speer and others. Judgment for plaintiff, and defendants appeal.

Heard before Hon. O. C. Nesmith. Ejectment by John Vary against A. A. Sensabaugh and another. From a judgment for defendants, plaintiff appeals.

<p>Appeal from Mobile Circuit Court.</p> <p>Heard before Hon. Samuel B. Browne.</p> <p>Ejectment by Emily C. Lyon, against W. T. McGowan and others. Judgment for defendants and plaintiffs appeal.</p> <p>When a vendor conveys tAvo tracts of land Avhen he has title to only one of them the subsequent possession by the vendee of the tracts that belonged to the vendor does not disseize the OAvner of the other tract. — Henry v. Broicn, ■ 143 Ala. 446; Woods v. Montevallo G. & T. Go., 84 Ala. 565. The record owner is not affected by the fact that- his land is included with other land in the deed betAveen strangers followed by adverse occupation of some part of the land other than his. — Walsh v. Wheel-right, 96 Me. 174. It was only when some part of his land was being adversely occupied that he was put upon inquiry 'or is affected with notice of recorded conveyances betAveen other persons. — Busav. Adverse Poss. sec. 256; 37 Am. Dec. 190; 2 L. B. A. 277; 23 Cal. 431; 25 Pa. 491. Possession of a part does not give possession of large tracts of uninclosed land. — Lawrence v. Ala. St. Land Go., 41 South. 613. No right springs from mere claim or color of title. — Parks v. Barnett, 104 Ala. 443; Eureka v. JSiorment, 104 Ala. 631.</p> <p>This is the second report of this case. — 41 South. 682. .The adverse possession of the Andersons once established is presumed to continue. — Hughes v. Anderson, 79 Ala. 215. The only question presented for reAdeAv is Avhether or not there is a palpable Avant of evidence to support the verdict. — • Battle v. Weems-, 44 Ala. 105; Sherman v. Ja-'kson, 47 Ala. 239.</p>

Heard before Hon. Samuel B. Browne. Ejectment by Eobert A. Lemoine against Fannie Hays. From a judgment for plaintiff, defendant appeals. Lemoine claims the land as a life tenant of his deceased wife, Anna Steele Lemoine, who died intestate March, 1873, and who was the daughter of Ben O. Steele, who died intestate in 1857, leaving surviving him his widow, Pauline Steele, now Cullen, and daughter, Anna Steele.

Heard before Hon. B. M. Miller. Ejectment by George Barry and another against C. B. Madaris. Judgment'for defendant, and plaintiffs appeal. Affirmed. The facts are sufficiently stated in the opinion of the court. The following charges were refused to the plaintiffs: “(5) The court charges the jury that if the plaintiffs in this case have connected themselves with a grantor in possession, then this is all that is required of them in order to make out a prima facie case.

Heard before Hon. A. O. Lane. Ejectment by George Tribble against Frank Jackson and another. From a judgment for plaintiff, defendants appeal.

Montgomery City Court. Heard before Hon. A. D. Sayre. Suit by M. W. Westcott and others against T. J. Mattox in unlawful detainer, for breach of contract of lease, the facts of which are sufficiently stated in the opinion of the court. From a judgment for plaintiff defendant appeals. Where the tenant violates the terms of a lease to the injury of the landlord, the latter may recover full compensation in damages in a suit for breach of condition.— 18 Am. & Eng. Ency.

Heard before Hon. H. A. Peaece. Action by the Chattahoochee Grocery Company against A. Pelham. From a judgment for plaiutiff, defendant appeals. The Chattahoochee Grocery Company sold one Reeves several bills of goods while in business as a merchant.

<p> Detinue. </p> <p>1. Evidence.; Opinion Evidence; Value. — One may testify as to the value of a horse and wagon without being shown to be an expert.</p> <p>2. Fraudulent Conveyances; Evidence. — The issue being whether a sale of a horse and wagon was a fraud on creditors, it is competent to ask the buyer on cross examination if it was not a fact that he knew of the insolvent condition of the seller, and if he had paid nothing, and that it was the understanding that he was to pay nothing ; if such agreement had not been made in the presence of a named person, and it was not agreed that the seller was to file a claim of exemptions, and execute a bill of sale for the horse and wagon in order to cover up his title because he had more property than he could hold under his exemptions, and if he had not suggested to the seller the giving of the bill of sale, and the other questions set out in the opinion.</p> <p>3. Same; Knowedge and Intent of Seller. — The seller’s purpose in making the sale is immaterial where a party is a bona fide purchaser for value without notice.</p> <p>4. Same; Evidence. — On an issue as to whether or not the sale to plaintiff was in fraud of creditors, it was competent to show admisisons by plaintiff to defendants and others that' the property sold was not really his. but belonged to the debtor; and it was competent for defendant to show that plaintiff knew that the debtor who sold plaintiff the horse and wagon had sold the same to defendant and that plaintiff said it was all right.</p> <p>5. Evidence; Opinion Evidence; Conclusion. — It is not proper to show by a witness what was the purpose of the parties in executing a bill of sale as it is at most but a conclusion of the witness.</p> <p>6. Trial; Reception of Evidence; Re-opening Case. — After the evidence has been closed, it is within the discretion of the trial court whether it will re-open the case and permit the introduction of other testimony, and this court will not review the .action of the court in this regard unless abused.</p>

<p> Detinue. </p> <p>1. Detinue; Pleading; Sufficiency. — A plea, to an action in detinue, asserting that in bankruptcy proceedings against the defendant, the plaintiffs in this action had filed a petition claiming title to the goods sued for in this action on the ground of fraud practiced by the defendant in obtaining possession thereof, and that after a trustee had been appointed, defendant effected a composition with his creditors, and that said composition w.as confirmed and said bankruptcy proceedings were dismissed, and that by said order of dismissal the .rights of the plaintiff to said property were adjudged adversely to the plaintiff, and the title to the property was vested'in the defendant; that the claim to said property so asserted in said bankruptcy proceedings is the same claim under the same right and title as is asserted by plaintiff in this cause; is insufficient in that it does not appear therefrom that the dismissal in the bankruptcy proceedings involved the merits of plaintiff’s title, or that plaintiff’s claim was anywise adjudicated by the court, the averment as to the effect of the order being a mere conclusion. And the same plea with the further and added averment 'that plaintiffs had appeared in opposition to the confirmation of the composition effected with defendant’s creditors and had claimed to be creditors by virtue of the sale,, to defendant of the goods sued for in the detinue action and were, therefore, estopped to set up title or right of possession was defective in that it might be that plaintiffs were held to have elected to rescind the contract and reclaim the goods and were not therefore, entitled as creditors to oppose the confirmation, the two rights being inconsistent.</p> <p>2. Same. — Where a plea alleged that plaintiffs had elected to proceed in a Federal court to litigate their title to the goods sued for, and, therefore, the present suit should be abated, but which fails to aver or show that the party pleading was a party to the suit in the Federal court, is demurrable on that account, under the rule that pleadings are construed most strongly against the pleader.</p> <p>3. Bankruptcy; Title Acquired l)y ■Trustee; Title on Reversion to Bankrupt. — The title that a bankrupt has vests in the trustee, and if the bankrupt title is defeasible when it vests in the trustee, upon a composition and a dismissal of the bankruptcy proceedings, the title that reverts to the bankrupt is still a defeasible title.</p>

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. William Jackson.</p> <p>Action by Bob Bragg against the United States Cast Iron Pipe & Foundry Company on an alleged contract of insurance. Judgment for plaintiff and defendant appeals.</p> <p>The complaint was as follows: Count 2. Plaintiff claims of defendant the sum of $200 due on a policy or contract of insurance whereby the defendant on to-wit, .Jan. 1st, 1907, insured the plaintiff against accidents as an employe at the defendant’s foundry or pipe shop near Bessemer, Jefferson conty, Alabama; dues on which policy the plaintiff has fully paid to the defendant, and plaintiff avers that to-wit, the 7th day of January, he received temporary or permanent injuries while an employe in the defendants- foundry or shop and while engaged in the discharge of his duties under such employment, on the said date aforesaid of which accident the defendant has had notice. The 1st count was for money had and received. The evidence tended to show that the defendant company had what is known as in insuranee fund, out of which the employes are paid half time when they are injured so that they cannot work; that each employe pays into this fund 25 cents each month, and when an employe is injured he receives half time. The plaintiff testifying for himself, said that he had no contract or no insurance policy but that he paid in his money every month, and that Mr. Wright told him that they would pay him half time if he got hurt, and just as long as he was unable to work. The doctors testify as to his injuries and that they discharged him on the 15th day of May and certified to the company that he was cured of his injury. It was shown that he earned $1.75 per day, and that the company paid him 87 cents per day from the time of his injury until the 15th day of. May, when the doctors certified that he was cured.</p> <p>The court should have given the affirmative charge for appellant on the second count as there was a variance between the allegation and the proof. — Hudson v. Scott, 125 Ala. 172; Scarborough v. Blackmon, 108 Ala. 656; 27 Cyc. 880-4. The plaintiff could not recover under the first count of the complaint because the company had no money belonging to him or had received no money which was due him. — Lankford v. Lee, 119 Ala. 248; Steiner v. Glisby, 108 Ala. 190; see also 124 Ala. 151; 65 Ala. 213; 79 Ala. 293; 89 Ala. 619; 29 Ala. 332. The claim must also be for a sum certain or determinate amount. — Vincent v. Rodgers, 30 Ala. 471; 27 Oyc. 854.</p> <p>No brief came to the Reporter.</p>

<p> Assumpsit. </p> <p>1. Bills and Notes; Commercial Lato; Draft with Bill of Lading. An accepted sight draft with bill of lading attached endorsed and negotiated by the payee is governed by the commercial law.</p> <p>2. Sales; Delivery to Carrier. — Where one purchases property from another with instruction to deliver the property purchased to a common carrier, consigned to a named person, and the seller delivered the property to the carrier consigned as directed, the sale is consummated and the title passes out of the seller.</p> <p>3. Sales; Bill of Lading; Endorsement and Transfer; Title to Property. — The endorsement of a draft with bill of lading attached, for the price of cotton sold by the seller who was the payee in the draft to the plaintiff’s bank for discount did not vest the legal title to the cotton for the sale of which the draft was drawn in the bank, nor constitute the bank the seller of the cotton.</p> <p>4. Bills and Notes; Bonafi.de Purchaser; Defenses. — Where in the ordinary course of busines a bank discounts a draft with bill of lading attached before maturity, the drawee and acceptor cannot, when sued on together set up failure or want of consideration.</p> <p>5. Appeal and Error; Review; Judgment on Agreed. State of Facts. —’Where a cause is tried on an agreed state of facts by the court without the intervention of a jury, this court will review the evidence and render such judgment as should have been rendered without indulging any presumptions in favor of the trial court’s ruling. (Acts 1894-5, p. 586.)</p>

Heard before Hon. Samuel B. Browne. Action by E. E. Dewy against the Alabama Security Company. Prom a judgment for plaintiff, defendant appeals.

Heard before Hon. W. W. Haralson. Action by W. H. Bartlett against E. F. Whitman and others for money had and received. From a judgment for plaintiff, defendants appeal.

Heard before Hon. Samuel B. Browne. Action by tbe Planters’ & Merchants’ Independent Packet Company against B. A. Webb. Prom a judgment for defendant, plaintiff appeals. The tendencies of the evidence are sufficiently set forth in the opinion of the court.

Heard before Hon. A. O. Lane. Action for money had and received by William Hall against Jonas Schwab & Co. From a judgment for plaintiff in the sum of $51, and from the action of the court in overruling the motion to retax the costs, defendants appeal.

Heard before Hon. A. A. Evans. Action by D. A. Walden against the town of Headland to recover salary alleged to be due him from the time of his unwarranted removal from office until the expiration of his term. From a judgment for defendant plaintiff appeals. Counsel insist that the law under which appellant was elected to office makes his term of office one year. — Acts 1898-9, p. 109.

Heard before Hon. H. B. Foster. Action by Agnes Prude and others, by nest- friend, against the Norwich Union Fire Insurance Society. From a judgment for plaintiffs, defendant appeals. See Norwich Union Fire Insurance Go. v. Prude et al., 145 Ala. 297, 40 South. 322.

Heard before Hon. H. A. Pearce. Action by Liipfert Scales Co. v. Greer and Walker, and others, in .assumpsit. Judgment by default for plaintiffs, and defendants appeal. Appeal is the remedy to correct the error committed in rendering judgment by default against a defendant in cause which had been discontinued. — Gurtis v. Games, 46 Ala. 455; Slade v. Street, 77 Ala. 576; Jones v. Englehardt, 78 Ala. 505.

Heard before Hon. A. O. Lane. Action in assumpsit by C. D. Ebersole against J. L. Addington, for rent. Judgment for defendant on his plea of tender, and plaintiff appeals. The defendant having failed to support his plea of tender the plaintiff was entitled to a judgment and costs. — Modalley v. Otey, 99 Ala. 584. The lease contract was modified by the subsequent parol agreement, which is permissible. — Robinson v. Bulloch, 66 Ala. 548.

Heard before Hon. A. A. Evans. Action by J. E. Cummings against'J. B. Long, for the ■ penalty prescribed for cutting trees upon the land of another, etc. Judgment for plaintiff, and defendant appeals. The legal title to the land must be in the person seeking to recover the penalty for cutting trees. — Allison v. Little, 93 Ala. 150; Gravelee v. Williams, 112 Ala. 538; Turner Go. v. Glocer, 101 Ala. 289; Bhelby Go. v. Ridley, 135 Ala. 513;- Whüe et al. v. Farris, 124 Ala. 461.

Heard before Hon. A. O. Lane. Assumpsit by the Standard. Oil Co. against E. G. Stevens. Prom a judgment taxing defendant with the costs, he appeals. Appellee took issue on the plea, and it was proven as pleaded, and the defendant was entitled to the verdict. — 109 Ala. 567; 310 Ala. 161; 56 Ala. 190. Counsel discuss assignments of error but without citation of authority.

Heard before Hon. H. A. Pearce. Action by Hannon against Willoughby upon a note. Judgment for plaintiff, and defendant appeals. The writing was no more than a receipt and open to explanation, modification or contradiction by parol. — Grtwlee v. LamIdn, 120 Ala. 210; Rardm v. Chmningliam, 136 Ala. 263. It follows that the court erred in excluding the testimony offered to that end. The court erred in giving the affirmative charge for plaintiff. — Mem.

<p> Action on Policy. </p> <p>1. Insurance; Action on Policy; Plea. — A plea to an action on an insurance policy, which asserts that on the face of the policy it was provided that in case of the death of the insured the company might pay the amount due to the beneficiary named, or to any person appearing to said company to be equitably entitled to the same by reason of having incurred expenses on behalf of the insured, or for her burial, and that the production of a receipt signed by either of such persons should he conclusive evidence that all claims under said policy had been satisfied, and that the defendant company had paid the amount due on the policy to the husband of the insured, and held a receipt signed by him, was not demurrable for a failure to aver that the beneficiary, the plaintiff, had consented to be replaced by another beneficiary.</p> <p>2. Same; Change of Beneficiary; Validity. — If in fact insured signed a request to the insurer to change the beneficiary named in the policy, it was immaterial that she signed the same upon a sick bed or elsewhere.</p> <p>3. Witnesses; Impeachment; Collateral Matters. — A witness may not be impeached on a predicate laid as to collateral matter, or immaterial issues.</p>

Heard befor eHon. Saffolb Berney. Action by Carrie C. Verneuille against the Manhattan Life Insurance Company. From a judgment for plaintiff, defendant appeals. The complaint is in code form. The following pleas were filed thereto: (1) The general issue. “(2) The defendant did not enter into the alleged contract sued on. (3) The alleged contract of insurance sued on never became binding upon tbe defendant.

Heard before Hon. Samuel B. Browne. Action by the Bailey Iron Works Company against the Mann Lumber Company, in attachment to enforce a blacksmith’s lien. From a judgment for plaintiff defendant appeals. The affidavit was taken before an attorney for the plaintiff and should be stricken. — 21 A. & E. Ency. of Law, 570.

Heard before Hon. A. L>. Sayre. Garnishment by S. Roman against the Montgomery Iron Works, et al. Judgment for garnishee, and plaintiff appeals. Appellant has the right by the statute to ask the review in this court of every question involved in the case from its commencement to the final decree. — Sec. 3840, Code 1896; Moulton v. Reed, 54 Ala. 327; DeBardelaben v. Whetstone, 85 Ala. 85; National Bank v. McDonough, 92 Ala. 387.

Heard before Hon. S-. L. Brewer. Action by Clark aucl Mary E. Butler, against J. D. Ayers, to recover the penalty for failure to enter partial payments upon the margin of a mortgage record. Judgment-for plaintiffs, and defendant appeals. The written request Avas not signed by the mortgagor and is not a request Avithin the meaning of the statute. — J otoers, et al. v. Brown Bros., 137 Ala. 581.

Heard before Hon. John Pelham. J. H. Fulton was declared elected sheriff on the returns, and Norris, the defeated candidate, filed his contest to the office before A. P. Longshore, judge of probate, of Shelby county. Thereupon, J. H. Fulton, by writ of mandamus sought to compel the judge to certify his incompetency to try and determine the cause. From a judgment denying the writ, petitioner appeals.

Heard before Hon. Joseph L. Savage. Hanna Sewell and minor children of J. A. Sewell filed a petition to have homestead allotted them out of the estate of J. A. Sewell, deceased. M. L. Sewell, administrator, and the other heirs of J. A. Sewell, deceased, contested. Prom a judgment allotting the homestead, .the administrator and others appeal. Actual occupancy of 'the homestead is necessary and essential.— Turner v. Turner, 107 Ala. 465; Norton v. Norton, 94 Ala. 41.

Heard before Hon. Thomas W. Coleman, Jr. W. A. Harrison ivas convicted in tbe recorder’s court of violating an ordinance of tbe city of Anniston against selling whisky. He appealed to tbe city court where be was again convicted and sentenced to bard labor. From this conviction be appeals. Tbe court erred in refusing tbe demand for a jury. Tbe appellant was not an actor in tbe city court, and bad made no appearance. —Grigg v. Gilmer, 54 Ala. 430.

<p> Prohibition. </p> <p>Prohibition; Denial of Writ; Moot Question. — When a statute has been repealed the question of its validity becomes a moot one and will not be considered on application for prohibition.</p>

Heard before Hon. A. A. Evans. Motion by Lecy S'. Chambers to vacate and annul a judgment rendered against her in favor of C. V. Morris. Judgment denying the motion, and movant appeals.

Heard before Hon. A. A. Evans. Action by James J. Wynn, Jr., and others, on the official bond of M. J. McCraney clerk of the circuit court of Barbour county, for failure to issue execution. Judgment for defendant and plaintiff appeals.

Heard before Hon. A. D. Sayre. The Alabama Chemical Company obtained a judgment by confession against W. A. Baggett, and he entered a motion to set aside such judgment. From a judgment overruling this motion, he appeals. All civil actions must be commenced by service of summons. — Secs. 5296-7, Code 1907.

Heard before Hon. John Pelham. Mandamus on behalf of N. H. Reid to require James T. Greene, the recorder of the city court of Anniston to certify an appeal from a judgment of conviction against petitioner in the recorder’s, court to the circuit court of Calhoun county. From the judgment denying the writ, petitioner appeals.

Heard before Hon. B. H. Lewis. Application by T. A. Hall, for mandamus to the judge of probate of Covington county, to require him- to issue a license for the sale of liquor in the town of Florala in the said county. From a judgment denying the rule petitioner appeals.

Heard before Hon. H. A. Pearce. Action by the state, on the relation of A. V. Buck, against J. N. Ham, to try the title to the office of mayor of Elba, and to oust respondent from the office and declare relator entitled thereto. From a judgment for relator, respondent appeals.

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. I-I. Beners.</p>

<p>Appeal from Jefferson Chancery Court,</p> <p>Heard before Hon. A. H. Benners.</p>

<p>Appeal from Mobile Circuit Court.</p> <p>Heard before Hon. Samuel B. Browne.</p>

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