Volume 157 — Alabama Reports

Heard before Hon. W. W. Haralson. Petition by C. C. C’ox for a writ of habeas corpus. From a judgment denying the petition, petitioner appeals.

Heard before Hon. I. B. Slaughter. Will Stallworth was convicted of obtaining board by fraud, and he appeals.

Heard before Hon. Samuel B. Browne. Petition of Clem Askew for discharge on habeas corpus. From an order denying a discharge, 1m appeals.

Heard before Hon. S. L. Weaver. Petition for habeas corpns by Joe Sneed. From a judgment denying the writ, petitioner appeals. Jurisdiction of the justice of the peace in petit larceny cases is fixed by the statute. — Sec. 6733, Code 1907. The justice of the peace was without, jurisdiction to hear and determine the case. —Thomas v. The State, 114 Ala. 31. Counsel discuss other assignment of error but without citation of authority.

Heard before Hon. Robert I. Burke. William Cofer was convicted of regaining possession of land, of which he had been dispossessed under a writ of possession, by force or otherwise, and appeals. The affidavit was as follows: “(1) Before me, Robert I. Burke, judge of the county court in and for the said county, personally appeared William Richard, who, being by me first duly sworn, doth depose and say.

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. S. L. Weaver.</p> <p>Rosa Glenn was convicted of murder, and appeals.</p> <p>The evidence of Edwards, objected to, was as follows: In response to the question to “tell the jury the best you can about the difficulty,” the witness answered, “She [the defendant] cursed Idelia Ashley.” The solicitor asked the witness Jack Washington, “í)id 3rou not state before the grand jury that defendant used curse words first?” and he answered, “Yes; I think I stated that before the grand jury.” The evidence as to venue ivas as follows: That the act was committed at Riley Station, on the South Bessemer car line, in this county; but none of the witnesses stated that it was committed in Jefferson county.</p> <p>Newly discovered evidence is ground for new trial. — Sec. 5372, Code 1907; McLendon v. McKissaclc, 143 Ala. 118. There was no proof of venue. — 35 South. 30. The court erred in permitting the argument of counsel. — 17 Cyc. 28; 13 South. 575. The court erred in admitting evidence of the witness Edwards. — 119 Alá. 606; 136 Ala. 76; 17 Cyc. 28.</p>

<p> Carrying Concealed Weapons. </p> <p>1. Indictment and Information; Designation of Accused. — An affidavit charging the offender as being named “Urse Brown, alias____• Brown, whose given name is to the affiant unknown,” is a sufficient designation of the person, and is not uncertain, inconsistent or repugnant in its description of the person charged.</p> <p>2. Pleading; Plea in Abatement; Sufficiency. — Where the affidavit described the person charged as Urse Brown, alias__Brown, whose given name is to the affant unknown, a plea in abatement denying that defendant is known and called Urse Brown, stating his true name to be Miles Hicks, but that he was called by the name of Us Brown, is subject to demurrer for a failure to negative the description of the name under the averment of an alias, and does not meet or overcome the averment in the affidavit.</p>

Heard before Hon. William Jackson. Jasper Guarreno ivas convicted of retailing without license, and appeals. Tbe indictment was as follows: (1) Jasper Guarreno sold spirituous, vinous, or malt liquors without a license and contrary to law. (2) Jasper Guarreno did sell, give away, or otherwise dispose of spirituous, vinous, or malt liquors without a license and contrary to law.

Heard before Hon. S. L. Weaver. Will Badgett was convicted of selling liquor without license, and appeals.

Heard, before Hon. Alfred H. Benners. Bill by H. C. Matthews against the Tenn. C. I. & Ry. Co., to quiet title to certain described lands. From a decree for respondent complainant appeals. Complainant-had title to 10 acres of land by adverse possession.— T. C. & I. Co. v. Lynn, 123 Ala. 112.

Heard before Hon. W. L. Parks. Bill by Roberts F. Peters and others, against S. F. Rhodes and others, to enforce a trust. From a decree ■ dismissing the bill for want of equity, complainants appeal. Courts of equity will follow trust property and keep it subject to the trust.— Winston v. Miller, 139 Ala. 259. The bill presented a case for removal. — Bromberg v. Bates, 98 Ala. 621.

Heard before Hon. W. H. Simpson. Bill by tbe Jones Cotton Company for discovery and relief against tbe Gulf Compress Company, tbe Southern Railway Company, George F. Rontzler, general agent of tbe Gulf Compress Company, and T. J. Morrow, general agent of tbe Southern Railway Company at Decatur. Decree overruling demurrers to the bill, and defendants appeal, and, after severance, separately assign error.

Heard before Hon. Thomas H. Smith. Bill by Nathan H. Howell against Mary Henry to-quiet title to an 80 acre tract of land. From a decree granting complainant partial relief he appeals. A writing is not essential for color of title, but color of title may arise from an act in pais without a writing. — 1 A. & E. Ency of Law, 848-9.

Heai’d before Hon. Thomas W. Wert. Bill by Robert F. Fuller against Frank L. G'henault to enjoin a sale under a mortgage and to cancel tbe mortgage for fraud. Decree for defendant on the pleadings, and complainant appeals. The allegations of the bill are sufficiently stated in the opinion.

Heard before Hon. W: W. Whiteside. Bill by Nixon Lucus against J. W. Jackson and another to reform a mortgage. Motion was made to dismiss the bill for want of equity and demurrers were filed. From a decree overruling the demurrers and the motion to dismiss, defendants appeal. The mortgage foreclosed cannot be reformed. — Stevenson v. Harris, 131 Ala. 470; Duval v. McGlusky, 1 Ala. 728.

Heard before Hon. R. D. Kelly. Bill by Walter C. Pitts and other, against the American Freehold land Mortgage Company of London Limited, to set aside a foreclosure sale and to redeem. From a decree granting complainant’s insufficient relief, they appeal.

Heard before Hon. W. W. Whiteside. Bill by A. M. Baldwin and others, as sureties on the bond of W. D. Whetstone, administrator of the estate of Mills Rodgers, against J. L Alexander and others as vendees of the heirs of Mills Rodgers seeking to hold the land distributed to the heirs liable for a debt paid for the administrator. From a decree for respondents complainants appeal.

Heard before Hon. G. K. Mtller. Bill by Willie E. Boaz and others against Allen A. Greene and another to remove a cloud on title. Decree for complainants, and defendants appeal.

Heard before Hon. L. D. Gardner. Bill by George E. Wood Lumber Company against George W. Williams to quiet title to certain described lands. From a judgment for respondent complainants appeal. One who has the legal estate in fee in land has the construstive possession unless there is actual possession in someone else. — 145 Ala. 227.

Heard before Hon. Thomas H. Smith. Bill by Georgia Smith for partition of land, to which Evelyn Hatch Smith and others were made parties respondent. Prom a decree for complainants, respondents appeal.

Heard before Hon. Thomas H. Smith. Bill by L. A. Bnrt against J. M. Rodgers to have a conveyance absolute on its face declared a mortgage.— From a judgment for complainant, respondent appeals. The court should have sustained the demurrers to the bill. The intention must have been that of the grantee as well as of the grantor, and this should be averred. — Beeves v. Abercrombie, 108 Ala. 537; West v. Hendricks, 28 Ala. 234; Smith v. Smith, 45 South. 170.

<p> Bill for Specific Performance. </p> <p>1. Specific Performance; Proof; Record. — The proof must strictly conform to the allegations where the specific performance of a contract for the sale of land is sought.</p> <p>2. Same; Evidence; Sufficiency. — The evidence examined and stated and held to show that the price agreed upon was $570 as contended by respondent and not $560 as claimed by complainant</p>

<p>. Appeal from Perry Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Bill by District Grand Lodge No. 7, Independent Order B’nai B’rith, against M. Marx and others for the reformation of a mortgage and for foreclosure. From a decree for complainant respondent appeals.</p> <p>The chancery court cannot render a final decree in a cause before the cause is at issue as to all parties.— 129 Ala. 562; 69 Ala. 92; 66 Ala. 115; 63 Ala. 387; 34 Ala. 15; 32 Ala. 437. The death of Eliza Peters and George Gooden, rendered a decree entered after their death void. — Ex Parte Massey, 131 Ala. 65; Powe v. McLeod é Go., 76 Ala. 4418. Under the evidence the acknowledgement of Dan Peters and his wife was void. —A. E. L. M. Go. v. People, 102 Ala. 241; N. E. M. S. Co. v. Payne, 7 Ala. 578; 140 Ala. 577; 39 South. 215; 107 Ala. 395. The taking of the mortgage was a waiver of the vendor’s lien. — White v. Simpson, 107 Ala. 395; Fields v. Drennan & Go., 115 Ala. 558; Wilder v. Wilder, .89 Ala. 414. There was no proof of right to reformation and the bill cannot be sustained. — Gilmer v. Wallace, 75 Ala. 220; 3 Mayf. 351.</p>

<p>Appeal from Tallapoosa Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p> <p>Bill by E. V. Salmon, as administrator, against W. H. Wynn, as administrator, and others, to remove an estate represented by Wynn into the chancery court to be there administered. Decree for defendants, and complainant appeals.</p> <p>The following are the pleas to which exceptions were talien :</p> <p>“(1) For plea to said bill of complainant this respondent says that on the 3d of March, 1903, Mrs. Julian Greer, the complainant in this cause, filed her bill in the chancery court of Tallapoosa county, Ala., against V. Cooper Vaughn, as administratrix of the estate of F. A. Vaughn, deceased, and the heirs at law of James Vaughn, deceased, seeking to have the administration •of the estate of said James Vaughn removed from the probate court of Tallapoosa county, Ala., to the chancery court of said county, and to require the said V. Cooper Vaughn, as said administratrix, to make a final settlement of the said estate of said James Vaughn, deceased; that, said V. Cooper Vaughn having died, said cause was revived against said W. H. Wynn, as the administrator de bonis non of the estate of said F. A. Vaughn, deceased; that, a decree having been rendered in said cause adversely to the complainant, Mrs. Julian Greer, she, on the 25th of June, 1906, took an appeal to the Supreme Court of Alabama in said cause, which said appeal was pending and undetermined at the time of the filing of the bill in this cause, and is still pending and undetermined; that said bill is founded on the same cause of action as the bill filed in this case, and is therefore vexatious. , Wherefore this respondent says that this suit ought not to be maintained, and he asks that it be abated out of this, court.</p> <p>“(2) For further plea to.said bill of complaint this respondent says that on the 3d of March 1903, the complainant in this cause filed a bill in the chancery court of Tallapoosa county, Ala., against V. Cooper Vaughn, as administratrix of the estate of' F. A. Vaughn, deceased, and the heirs at law of James Vaughn, deceased, alleging that James Vaughn died in Tallapoosa county, Ala., in 1880, leaving a last will and testament, which is set out in said bill; that F. A. Vaughn was named as the executor of said will; that he was appointed executor by the probate court of Tallapoosa county, and entered upon the discharge of his duties as such on the 16th of December, 1880; also alleging that she had never received her share of her father’s estate, and, afted setting out the names of the heirs at law of James Vaughn, deceased, further alleged that there were no debts due by the estate of James Vaughn, and that there was nothing remaining to be done by an administrator of said estate, and that there was no need for an administrator of the estate of James Vanghn, deceased; and praying that the administration of the estate of James Vaughn, deceased, be removed from the probate court of Tallapoosa county into the chancery court of said county, and that the said V. Cooper Vaughn, as administratrix of the estate of F. A. Vaughn, deceased, be required to file her accounts and make in the chancery court a final settlement of the estate of James Vaughn, deceased, that a reference be ordered before the register of this court, that an account be stated between the legatees of the estate of James Vaughn, deceased, on the one hand, and V. Cooper Vaughn, as administratrix of the estate of F. A. Vaughn, on the other hand, charging the said V. Cooper Vaughn with all the property and money and other matters with which the said F. A. Vaughn would be chargeable if living, and making such settlement, and that a final decree should be rendered making a complete and final settlement and distribution of the estate of James Vaughn, deceased, and of the assets thereunto belonging unto the legatees of said estate; that, said V. Cooper Vaughn having died, said cause Avas revived against said W. H. Wynn, an administrator de bonis non of the estate of F. A. Vaughn, deceased. A copy of said bill of complaint, filed on the 3d day of March, 1903, is attached to this plea as Exhibit A thereto, and made a part of the same, with leave of reference thereto as often as may be necessary. This respondent avers that the matters set forth in said bill are the same as those set forth in the bill filed -in this case,, and that it is based on the same cause of action. This respondent avers that, after a decree had been ren dered in said cause adversely to the complainant, she prayed for and took an appeal to the Supreme Court of Alabama in said, canse, Avliicb said appeal Avas pending and nndertermined when the bill was filed in this cause, and is still pending and undetermined. Wherefore this respondent says that the filing of the bill in this case and the bringing of this suit against this respondent is vexatious, and that complainant ought not to be permitted to maintain and prosecute the same against this respondent, and asks that the same abate ont of this court.”</p> <p>These pleas Avere verified by the affidavit of W.H. Wynn.</p> <p>The folloAving exceptions were filed to the pleas: “ (1) That each of said pleas was insufficient, and no answer to the complaint. (2) Said pleas do not set out the record in the former suit therein named, and do not by proper averments show what were the issues in said former suit. (3) Said pleas do not set out the final decrees in said former suit, and do not show by proper averment that said decree Avas a final and absolute ad' judication of complainant’s ‘right in said suit. (-Í-) Said pleas do not set ont the decrees in said suit therein named, and do not show that the bill in said cause Avas not dismissed without prejudice. (5) Said pleas do not set out the record, and do not show what were the issues in the former suit, and do not shOAV what Avas the decree of the court in said former suit, and do not shOAV that said decree Avas a final adjudication absolutely against complainant therein. . (6) Said pleas show on their face that the administratrix of James Vaughn, deceased, Avas not a party to the suit.”</p> <p>Demurrers were filed setting up and assigning the same ground as those assigned in the exceptions. Exhibit A to plea 2 Avas the bill and exhibits thereto filed in the former suit; but the decree in the former suit is not made an exhibit thereto.</p> <p>The plea of the pendency of a prior action for the same cause between the same parties, stands upon like principles, and is supported by like evidence as a plea of former recovery. - -Foster v. Napier, 73 Ala. 595. In order that a judgment may be res adjudicata it must appear that the the point must be directly in issue, and the judgment must be rendered on that point. If any one of these elements is wanting the judgment is not conclusive in a subsequent action. — (Ulbreath v. Jones, 66 Ala. 129; Dobson v. Hirley, 129 Ala. 380. To support the plea of the pendency of a former suit as a cause for Hie abatenunt cf the suit in which the plea is interposed, the plea must show that the former suit is between the same parties and relates to the same cause of action and that a judgment therein would be conclusive between the parties to the latter suit as to the matters therein involved. — Foster v. Napier, supra; Davis v. Petrinovich, 112 Ala. 654; Hall v. Wallace, 25 Ala. 438; Hallv. Holcombe, 26 Ala, 720; W. U. Tel. Co. v. Crumpton, 138 Ala. 632.</p> <p>The plea was a good plea in abatement, and the court properly sustained it. — Ormon v. Lane, 130 Ala. 305; Troy Fert. Co. v. Prestiroocl, 116 Ala. 119; Goaldale B. & T. Co. v. Southern Const. Co., 110 Ala. 605; Foster v. Napier, 73 Ala. 595.</p>

<p>Appeal from Jackson Chancery Court.</p> <p>Heard before Hon. W. H. Simpson.</p> <p>Bill by E. H. Caldwell against D. K. Caldwell and others. From decree dismissing the bill, complainant appeals.</p> <p>The history of the case may be briefly stated as follows : Appellant did business in his father’s name, one Hamlin Caldwell, and became involved in the amount of more than $27,000. Before his death Hamlin Caldwell paid off all this indebtedness but $16,000, and gave a mortgage covering his landed estate to pay this balance. After Hamlin Caldwell’s death, D. K. Caldwell became administrator of his estate, and in order to. make a settlement of his administration the heirs entered into the following agreement: “This agreement, made and entered into by and between D. K. Caldwell, S'. Almena Caldwell, G. B. Caldwell, and E. H. Caldwell, witnesseth that we hereby make the following agreement with each other: (1) That D. K. Caldwell shall make a final settlement of the administration of the estate of H. Caldwell, deceased, taking no account of the lands formerly belonging to the said estate, nor the rents due from said land, except for the years 1895 and 1896, and likewise taking no accounts of the debts which are charged upon said lands covered by the Butler Mortgage. (2) Said D. K. Caldwell shall account for the rents for the years 1895 and 1896, and charge each heir with the amount of rents received by him as so much advanced and paid to the heirs so receiving said portion or rent, crediting himself with the amount disbursed by him, if anything, out of his individual means or money received from said estate otherwise than above excepted as the proceeds of the land, and that he shall likewise charge each heir on their settlement any advancement by Caldwell to said heir, but no debt that may be due from any one of said heirs of the estate of J. Caldwell, which shall be charged as against any interest which said heir may have in the assets of said estate, or which may have been or may hereafter be derived directly or indirectly from the lands formerly belonging to the estate of H. Caldwell, which were sold and conveyed by J. E. Butler to Sallie B. Brown. (3) It is further agreed that W. D. Bridges shall select one man, or two men, as he may think best, to value all of the real estate formerly owned by H. Caldwell, and which was conveyed by J. E. Butler to Sallie Brown, and :to value each tract or lot separately, and that the man or men so appointed shall take from the whole tract; or from the different tracts or parcels of tracts, an amount of land sufficient in value, which, according to their best judgment, will be sufficient within three years from the date of this agreement to yield the amount which may be necessary to pay the debt to Sallie Brown and repurchase the land, said land to be selected so as to cause the least detriment to the whole tract, which said land, when so' set apart to pay said debt, shall be placed in the custody of a trustee, to be by him managed and sold at any time within three years, and out of the proceeds to pay said Sallie B. Brown the debt, or so much thereof as the proceeds of said land will pay. (Here follows instructions as to how the trustee shall manage, and an agreement by each to sign a conveyance to the person purchasing from the trustee at the price agreed on by him.) (4) Of the land remaining after said sale has been made to pay said debt, the remainder shall be divided into four parts, each part of which shall be valued by said appraisers aforesaid, and each of said four heirs shall be entitled to one of the four parts so set apart, and shall have that portion as their part which may be designed by said appraisers, if said heirs shall be unable to agree upon their respective parts so set apart; but each heir shall take said one-fourth portion of said land charged with whatever balance may be ascertained to be due on the settlement of D. K. Caldwell in the probate court from prior advancements or paid him from said estate, and the same shall be subject to said debt before the title can vest in him or her, but the whole shall be subject to the prior debt or incumbrance of Sallie B. Brown. (5) If the amount paid shall not be sufficient to pay the same, then said trustee may take a portion of the land off of each of the divisions hereinbefore stated, as nearly equal as may be convenient, and to sell the same until an amount sufficient has been realied to pay said debt to Sallie B. Brown. (6) The amount found due, on the settlement of said D. K. Caldwell in said probate court, from each of the heirs of the estate is hereby declared a lien and charge on the interest set apart to such heir, and in default of payment said interest may be sold, and the amount remaining after paying said debt shall go to the heir aforesaid.”</p> <p>On the settlement appellant was found due the estate $27,588.55; G. B. Caldwell, $3,122.02; D. K.. Caldwell, $1,827.74; and S. Almena Caldwell, nothing. For some reason not appearing a sale was not made of the lot set apart to pay off the mortgage, and the incumbrance continued from year to year, being mortgaged first to J. E. Butler, then to Sallie B. Brown, and finally to A. H. Moody. In 1904 certain creditors of appellant and G.. B. Caldwell sought to subject their interest in the land to certain judgments amounting to something over $10,000. All of the heirs, as well as the mortgagee, were made parties to this suit, and an agreement was reached amoung the parties by which $2,500 was agreed to be accepted in satisfaction of the judgment, and the lands were sold to pay the amount found due on the Moody mortgage, the compromise judgment,' and the cost of the suit, and.a sale was made under a decree of the chancery court in January, 1905, and Moody purchased the lands at the sum of $16,000, paid off the mortgage, and paid the balance into court, and shortly afterwards deeded said land to D. K. Caldwell and took a mortgage on it for the purchase money. About April, 1908, appellant and D. K. Caldwell became involved in a controversy and agreed upon an arbitration, agreeing each to leave to James W. Moody the amount that E. H. Caldwell should pay to A. H. Moody on the debt owing to Moody, and agreeing to quitclaim whatever interest D. K. Caldwell might have in the part set apart for E. EL Caudwell. The arbitrators declined to act, and later E. H. Caldwell appeared before him with a statement prepared by himself and requested the arbitrator to sign it, but he declined to do so, and after drawing a line under the figures furnished by appellant he wrote as follows: “According to the figures E. EL Caldwell furnishes me, he would owe a balance of $600; but D. K. Caldwell’s claims will not figure that way” — and signs his name, and this in the absence of D. K. Caldwell. Thereupon E. H. Caldwell tendered $600, which was declined, where upon the bill was filed to enforce the arbitration. The bill further alleges that the deed from A. H. Moody to D. K. Caldwell was made in open violation of an oral agreement made and entered into the day of and just prior to the foreclosure sale in the case of the creditors against the two Caldwells, Avhereby it is alleged that A. H. Moody agreed to buy the lands and give each of the heirs five years Avithin Avhich to redeem their respective portions. The bill was amended, and relief asked on the theory that D. K. Caldwell was equitable assignee of the said A. H. Moody, and that the appellant and other heirs might come in after an accounting and redeem their several portions of land.</p> <p>Under the facts in this case complainant has the right to recover his part of the land by making equitable contribution. — Jones v. Matldn, 118 Ala. 341; Jones on Mortgages, sec. 1089, et seq., Pom. Eq. sec. 1220. .</p> <p>The case of Wood v. Wood, 134 Ala. 557, is conclusive upon complainant in this case.</p>

<p> Bill to Remove Administration. </p> <p>1. Equity; Jurisdiction; Administration of Estate.- — -The jurisdiction of the chancery court in the administration of estates is original, and if an executor finds that the affairs of the estate are so involved that he cannot safely administer except under direction of the chancery court, he may seek the interference of the court and have the estate removed from the probate to the chancery court, unless the probate court has acquired jurisdiction.</p> <p>2. Same; Grounds for Jurisdiction. — The grounds of jurisdiction sufficient for an interference by the chancery court in the removal of an estate is a question determinable by the chancery court; but where the trusts of a will are doubtful, or the personal representative may have difficulty or be embarrassed in the execution of such trust, a court of equity at his instanec will take jurisdiction to construe the will and aid and direct the executor in the performance of his duty; so likewise will it take jurisdiction when it appears that a discovery and accounting on the part of some of the distributees of the estate is necessary to a proper adjustment and settlement of the estate.</p> <p>3. Same; Retention of Jurisdiction. — When chancery once takes jurisdiction to administer an estate on an equitabe ground for interposition it will retain the cause and conduct and finally settle the administration according to the rules and practices of that court, auplwns the substantive law regulating the conduct and settlement of administration in the probate court.</p> <p>4. Sume; Assumption of Jurisdiction. — Where an executor invokes the jurisdiction oí the chancery court for a discovery and an accounting on the part of some of the distributees of the estate, and litigates the questions raised by the answer and cross bill seeking the appointment of a receiver, without any suggestion that the action is premature, if he is not estopped from questioning the assumption of jurisdiction on the ground that no order had been made removing the administration, if the original bill was well filed by him its effect would be to withdraw the administration of the estate from the prebate court and give the chancery court jurisdiction to proceed with the cause according to its rules and practices.</p> <p>5. Receivers; Ground of Appointment; Defenses; Improbability of Ultimate Relief. — While it is true that the probability that a complainant will not be ultimately entitled to relief sought is a material element to be considered by the court in the appointment of a receiver, mere defects of pleading or parties, which may be cured by amendment, will not prevent such appointment where there are genuine rights to be protected and preserved; so that where an answer and cross bill alleges that the testator gave the cross complainant certain property and that the executor has taken the property in his custody and has committed a devastavit and converted much of the estate to his own use and is insolvent, and that a large quantity of personal property belonging to the estate in which the cross complainants are interested is in his hands, and that cross complainant’s interest in the estate will be in danger for want of security, and seeking to have the executor give bond or have the assets in his hands committed to a receiver, and the executor fails to give bond as required, a receiver is properly appointed.</p> <p>6. Same; Bond; Statutory Provision.- — -An order requiring an executor to give bond to keep and perform and pay all decrees rendered against him in the cause, prescribes in legal effect the conditions laid down in section 66, Code 1896, and an order appointing a receiver upon failure of the exeetuor to give the required bond is not erroneous because of the conditions of the bond required by the order.</p> <p>7. Same; Notice; Necessity and Sufficiency. — The chancellor was justified in appointing a receiver without giving notice, upon allegation of the cross bill, notwithstanding the order requiring the executor to give bond by a date fixed directed that the question of a receiver be postponed to be thereafter considered on motion of either party to the cause; it further appearing that the executor was insolvent, had given no security, and made no inventory of the assets of the estate, and there was evidence that he had converted assets to his own use.</p> <p>8. Appeal amd Error; Reservation, of Ground; Failure to Ask Continuance. — Where the record shows that the cause was submitted at the time specified, and on pleading and affidavits of both parties without any suggestion that a continuance should be granted error in failing to give sufficient time for a hearing cannot avail on appeal.</p> <p>9. Judgments; Modification; Interlocutory Decree. — An order in an administration suit, requiring an executor to give bond is an interlocutory decree subject to the power of the chancellor to create change or annul it as long as the case remains open and within the jurisdiction of the court; so that an order made on July 13, requiring an executor to give bond by July 18, 1908, may, on the 10th of July, be changed so as to require the giving of the bond by July 25, 1907, the date as originally fixed, being evidently an inadvertent clerical error.</p> <p>10. Same; Notice. — Where an order fixing the time for an executor to give bond is inadvertently written as July 18, 1908, and the object in requiring the bond shows that it should have been 1907, notice to the executor is uot indispensable to the validity of an order correcting the date so as to fix a later date in the same month, but in the year 1907, instead of the year 1908.</p>

<p> Bill for Partition. </p> <p>1. Poicers; Execution; Delegation of Authority. — Where a life tenant is authorised to sell and dispose of such portions of a testator’s estate as the lile tenant may think best, either at public or private sale, and upon such terms as the li.e tenant may deem advisable, the lile tenant cannot delegate the execution ot the newer to the probate court, and cannot substitute the judgment of that tribunal tor hers in making the sale; hence, a sale in partition under the decree ot the probate court at the instance of the life tenant caunot be considered as an execution of the power. •</p> <p>2. Same. — Where a life tenant with power to sell institutes partition proceedings tor a sale ot the property, and there is noth.ng in the petition filed making it clearly appear that it was the intention of the lile tenant to so execute the power, or whether it was the intention to sell only the life estate, and this is not shown by the record ot the proceedings, an execution of the power to sell vested in the life tenant by the will is not shown.</p> <p>3. Partition; Pemmnderman.- — Unless the remaindermen are made parties to partition proceedings instituted by the life teuaut, the estate of the remaindermen cannot be sold.</p> <p>4. Plea; Tenancy in Common. — Where the facts alleged in a plea or answer to a bill for partition clearly show that the respondent was a tenant in common with the complainant, the setting up of a title superior to complainant in such an answer or plea, is bad.</p> <p>5. Adverse Possession; Life Estate; Life Tenant. — The possession of a life estate cannot become adverse to the remaindermen until after the death of the life tenant.</p> <p>6. Tenancy in Common; Possession of Co-tenant; Adverse Possession. — Possession by one tenant in common is prima facie the possession of all, and does not become adverse, unless there is an actual ouster or unless the adverse character of the possession is actually known to the other tenants, or is so open and notorious in its hostility and exclusiveness as to charge the cotenant with notice of its adverse character.</p> <p>7. Adverse Possession; Sale of Property so Held. — Where the interest or estate is held by devolution under the statute, the principle that a conveyance is void if executed when a third person is in the adverse possession of the premises, has no application.</p>

Heard before Hon. Alfred H. Benners. Bill by Belton Gilreath as trustee against the Carbon Hill & Lost Creek Coal Company to annul a coal léase and to deliver up leased premises, and for an injunction. Prom a decree dissolving a preliminary injunction complainant appeals. The court improperly granted a motion to dissolve the temporary injunction. — Dennis v. M. JcM. By.

Heard before Hon. W. W. Wi-iiteside. - ■ Bill by O. C. Toombs, and others, as citizens and taxpayers of the town of Tallassee to enjoin said town and its municipal board from operating a dispensary. From a decree for complainants, respondents appeal. Counsel discuss the constitutionality of the act with citation of authority, but in view of the opinion, it is unnecessary to digest the brief.

<p>Appeal- from Mobile Chancery Court.</p> <p>Heard before Hon. Thomas H. 'Smith.</p> <p>Bill by Elizabeth Manser against Shelton Sims and others to foreclose certain mortgages. From a decree denying relief complainant appeals.</p> <p>Joseph Espalla was not a bona fide purchaser for value without notice. He knew that M. S. Manser by lending her money to her son and son-in-law to pay the purchase money of the property which was purchased from him had become subrogated to his right to a vendor’s lien.— Knighton v. Gurry, 62 Ala. 404; Newhold v. Smart, 67 Ala. 326; Sawyers v. Baker, 72 Ala. 49; Truss v. Miller, 116 Ala. 506; Faulk v. Galloway, 123 Ala. 325; Motes v. Robertson, 133 Ala. 630.</p> <p>In order to avail of the defense of a bona fide purchaser one must allege and prove that.he acquired the legal as distinguished from the equitable title. — Graft v. Russell, 67 Ala. 9; Shock v. Southern B. & L. Assn., 140 Ala. 579; O’Neal v. Seixas, 85 Ala. 80. The burden rests upon those who set it up to show that the complainant agreed to accept the note and mortgage in full payment of her debt. — McPherson v. Faust, 81 Ala. 295; Day v. Thompson, 65 Ala. 269; Patrick v. Patty, 83 Ala. 420; McWilliams v. Phillips, 71 Ala. 80.</p> <p>Novation happened when the second mortgage was given. —McDonald v. A. G. L. Ins. Go., 85 Ala. 414; 5 L. R. A. 415. The burden was on Manser to show notice of unrecorded mortgages. — Steiner Bros. v. Tisdale, 95 Ala. 91; Dulim, v. Hunter, 98 Ala. 539; Hodges v. Winston, 94 Ala. 576. Under the deed the representatives of Elizabeth Camp could have gone into equity and forced Espalla to convey the legal title. — Norwood v. Washington, 136 Ala. 657; Gaperton v. Hall, 83 Ala. 171.</p>

Heard before Hon. A. H. Benners. Bill by the 'Southern Steel Company against Wiley Hopkins, administrator, and others, to enjoin 110 suits at law pending the determination of a defense applicable to each.

Heard before Hon. Thomas H. Smith. Bill by James D. Fraser, administrator, and others, against J. M. Friedman, executor, for the specific recovery of personal chattel and for an accounting. From a decree overruling a motion to dismiss the bill, respondent appeals.

<p>Appeal from Elmore Chancery C'onrt.</p> <p>Heard before Hon. W. W. Wi-ixteside.</p> <p>Suit by Francis C. Hoffman and another against Annie II. Sewell and others. From a decree denying defendants petition for relief from the decree rendered for complainants, defendant appeal.</p> <p>An original bill was filed praying the cancellation' of a tax deed made to Annie H. Sewell and for a division of the lands described in said bill between the complainants and defedants. At chambers a decree was rendered by the chancellor in which it ivas held that the complainants, Francis C. Hoffman and Ada McWilliams, were the owners of three-fourths of the land described in said original bill, and that Annie H. Sewell was the owner of the other one-fourth interest. It was further decreed that Annie H. Sewell was indebted on a statement of account to the complainants in the sum of $222.43, and a decree was rendered that the lands be sold for division, and that Annie H. Sewell pay to the complainants $222.43 and three-fourths of the cost of the suit accruing to that date. While the said suit was pending the complainants, Ada McWilliams and Francis C. Hoffman, on the 26th and 27th days of October, 1903, sold and conveyed to one S. M. Peavy all their right, title, interest, and claim in and to the lands described in said original bill, and on October 27, 1903, the said Francis 0. Hoffman and Ada McWilliams each signed an agreement with said S. M. Peavy to withdraw' the suit pending in the chancery court of Elmore county; and' it is further shown that an order ivas given to Tom Williams, the register in chancery, on October 27, 1903, to withdraw the suits pending against Annie H. Sew-ell and N. B. Sewell. The cause having been submitted and being then in the breast of the chancellor, the decree hereinabove refered to was rendered by him on th 1st day of November, 1903. Thereafter, on the 13th day of March, 1905, the register in chancery advertised the lands in question for sale under the decree.A bill was filed by Annie IT. Sewell and N. B. Sewell, on the 9th day of September, 1905, against the said Francis C. Hoffman and Ada Me Williams,, in the chancery court of Elmore county, to enjoin the execution of this decree and to have said cause dismissed, and setting up the fact that N. B. Sewell by deed acquired all the right, title and interest of the said S. M. Peavy to the land in question, and praying that the execution of said decree be enjoined and that said decree be annulled and set aside. At the September term, 1905, the chancellor rendered a decree sustaining this bill. From this decree an appeal was taken to the Supreme Court of Alabama. At the November term, 1906, of the said Supreme Court an opinion wras rendered by Justice McClellan, concurred in by a majority of the court, to the effect that the complaints had mistaken their remedy; that the proper remedy should have been by petition in the pending cause to which they were respondents. Following the rendition of said opinion, and on, to wit, the 29th day of September, 1906, the original defendants, Annie H. Sewell and N. B. Sewell, filed their petition in this court, setting up all the facts hereinbefore stated and praying that the said decree theretofore entered be annulled and set aside, and the suit under which said decrees were rendered be dismissed according to agreement and for such other, further, and general relief as the facts and equities of the cause might require. The cause was again submitted at the March term, 1907, of said court, on motion to dismiss the petition of respondents and to direct the execution of the decree in this cause, whereupon the chancellor rendered a decree, which is appealed from and now before the Supreme Court for consideration.</p> <p>In support of the petition, the following authorities are cited. — Hoffman v. Sewell, in MS.; Wright v. Phillips, 56 Ala. 69; McGlathery v. Richardson, 129 Ala. 657; Larkin v. Mason, 71 Ala. 227.</p> <p>The most that a court can do after a final decree in the way of altering it in any respect must relate merely to the mode and form of carrying out a previous order. — Adams v. Sayre, 76 Ala. 509/</p>

<p> Bill for Receiver m%d Dissolution of Corporation. </p> <p>1. Corporations; Dissolution; ■Insolvency. — The term, insolvent corporation, as used in section 3512, Code 1907, (Gen. Acts 1903, p. 338, sec. 50) has reference to a corporation whose liabilities exceeds its assets, and not to a corporation who is merely not able to pay its debts as they become due in the ordinary course of business, but whose assets exceeds its liabilities.</p> <p>2. Same; Ground of Dissolution.- — At common law it must have appeared that a corporation has suspended business or is derelict, or that it is impossible for it to attain the object for which it is formed in order to authorize its dissolution.</p> <p>3. Same; Parties. — A stockholder in .a corporation is a necessary party to a bill for its dissolution.</p>

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. A. D. Sayre.</p> <p>Bill by Sallie H. Thornton against J. S. Pinchará and others to declare a deed absolute on its face a mortgage and to redeem from it and certain other mortgages. From a decree dismissing the bill, complainant appeals.</p> <p>As against Davidson the bill is one to remove and cancel her mortgage as a cloud and to set aside his judgment on the ground that by relinguishing her mortgage he satisfies her debt.— Palmer v. Hcndrie, 28 Beav. 341; s. c. 27 Beav. 249; Walker v. Jones, 3 Moore’s P. C. (N. S.) 414; Thornton v. Court, 3 D. G. McN. & G. 293; 2 Jones on Mortgages, sec. 1226. On the necessity of an unconditional acceptance of a deed as tendered attention is called to the following. — McClure v. Colcough, 17 Ala. 92; U. S. Bank v. Danclridge, 12 Wheat, 90 ; L. B. 5 Ene. & Irish App. Cases, 1. The deed was a result of a relinquishment of the equity of redemption by an opprossed mortgagor.— Moeller v. Moore, 50 N. W. 396; Bynum v. Hobbs, 83 S. W. 341; Vernon v. Nethel, 2 Eden. 113; Locke v. Palmer, 26 Ala. 324; Hugumm v. Basely, 14 Ves. Jr., 289.</p> <p>In support of the chancellor’s rulings in dismissing the bill counsel cite the following. — 20 A. & E. Ency. of Law, 1013 and cases cited; Pugh v. Davis, 96 U. S'. 332; Chapman v. Ooioles, 41 Ala. 104; Smith v. Smith, 45 South. 168; Gibson v. Snoio & Co., 94 Ala. 346; Golden v. Merchant, 43 Ala. 705; Danforth v. Herbert, 33 Ala. 497,; Jackson v. Know, 119 Ala. 320; Reeves v. Abercrombie, 108 Ala, 535.</p>

Heard before Hon. L. D. Gardner. Bill by J. W. Wade, as trustee in a deed of trust, and another, against N. N. Martin and others, to subject property as security for debts under a deed of trust and to foreclose the same. From a decree dismissing the bill for want of equity, complainants appeal.

Heard before Hon. W. L. Parks. Bill by Henry Jones against W. H. Gainer and others for the specific performance of a parol contract for the sale of land. From a decree dismissing the bill complainant appeals. The bill was not barred by staleness of demand. — Trechoell v. Torbert, 122 Ala. 300; Pom. Eq. sec. 419; 12 A. & E. Ency. of Law, -533; Haney v. Legg, 129 Ala. 619.

<p> Bill to Declare a Deed a Mortgage. </p> <p>1. Mortgages; Deeds as Mortgages. — The character of the conveyance must be determined by the clear and certain intention of the parties, and if there be an agreement that it shall operate as a security for a debt, it can and will operate only as a mortgage; and this agreement may rest in parol or by separate paper writing, or be expressed in the face of the conveyance.</p> <p>2. Same; Evidence. — The evidence to sustain the allegation that a deed absolute on its face is to operate as a mortgage must be clear and convincing; in this case such burden has not been met by the evidence.</p>

<p>Appeal from Greene Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Bill by Martin T. Summer as trustee, etc., against Marie V. Hill and others. From a judgment for respondent complainants appeal.</p> <p>The description known as the “Hancock Place” must give way to the particular description by government numbers and subdivisions. — Garter v. Chevalier, 108 Ala. 566; Gilmartin v. Wood, 76 Ala. 210; Sykes v. Shows, 74 Ala. 385; 103 111. 410 ; 31 Mass. 128; 68 Mo. 169; 5 N. H. 536. The exception to plea '2 should have, been sustained. — Montgomery I. W. Co. v. Roman, 147 Ala. 439; Tankersly v. Pettus, 71 Ala. 186; Gilbreath v. Jones, 66 Ala. 132; Wood v. Wood, 134 Ala. 565; Dial v. Gambrill, 126 Ala. 154. The amendment Avas permissible. — Lucas v. Pittman, 94 Ala. 616; M. & 0. R. R. Go. v. Logan, 136 Ala. 173; Longmire v. Pilhington, 37 Ala. 296; Grim v. Crawford, 29 Ala. 623. Plea 1 was Avholly insufficient. — Gilbreath v. Jones, supra; Glaser v. Meyromtz, 119 Ala. 156; McCall v. Jones, 72 Ala. 371; 9 Ency. P. & P. 621; 1 Dan. Chan. Pldg. 661. Plea 3 was insufficient. — Roscoe v. Jefferson, 38 South. 246 ;N. G. & St. L. Ry. Go. v. Hill, 40 South. 612. Between tenants in common, the right of a co-tenant or joint owenr is not barred until the lapse of twenty years. — McArthur v. Garry, 32 Ala. 75; Goodwyn v. Baldwin, 59 Ala. 128; Sec. 2794, Code 1896.</p> <p>On the cross assignments of error. The court erred in permitting complainant to amend his bill.— Arnett v. Bailey, 60 Ala. 435; Bailey v. Seldon, 112 Ala. 592; Blackburn v. Fitzgerald, 130 Ala. 584; Pickens v. Oliver, 32 Ala. 626; Tarver v. Smith, 38 Ala. 135; Lowery v. Daniels, 98 Ala. 451. As to the demurrers and ansAvers to the cross bill, counsel cite the following. —To the 1st ground. — 16 Mass. 231; 5 J. J. Marsh, 446; Harold v. Weaver, 72 Ala. 373. As to the other grounds. —Gilmartin v. Woods, 76 Ala. 210. Concerning the statute of limitations and the pleas they cite the folloAving.— 16 Cyc. 917; 12 Ency P. & P. 1; Perryman v. Gity of Greenville, 51 Ala. 507; Jackson v. Clarke, 7 John. 216.</p>

Heard before Hon. A. D. Sayre. Bill by J. W. Dimmick against M. C. Stokes for the sale of pledged property and the appointment of a receiver pending the litigation. Decree for complainant and respondent appeals. The law is very careful in respect to declaring defaults which are in the nature of a forfeiture.

Chancery Court. Heard before Hon. Lucian D. Gardner. Bill by Houston County against Henry County. Demurrer to the bill was sustained, and complainant appeals. The allegations made by the bill are that the Legislature of 1903 created the county of Houston out. of the counties of Henry, Dale, and Geneva, and described the part of Henry county which was cut off and made a part of Houston.

<p> Bill to Require Settlement by Guardianship. </p> <p>1. Limitation of Action; Period; Exceptions; Absence from State. —Section 2805, Code 1S96, is expressly confined to limitations provided for in chapter 72, in which it occurs, and has no application to chapter 16, section 761, Code 1896, although section 674, Code 1890, extends the provisions of the Code as to limitations of civil suits to suits commenced by bills in chancery.</p> <p>2 — Same; Fraud; Sufficiency of ■ Allegation. — The allegation of fraud in making final settlement and procuring an acknowledgment thereof from the ward by the guardian, and that the ward did not know of the fraud, until the guardian was discharged, and that the bill was filed within a year alter the discovery of the fraud, was sufficient to bring the bill within the purview of section 2813, Code 1896.</p> <p>3. Guardian and Ward; Transactions Between; After Majority.— Equity will not permit transactions between guardian and ward to stand unless the fullest deliberation by the ward and uie utmost good faith of the guardian is shown, even when they occur after the majority of the ward, if the period intervening is short, since the latter’s influence is presumed to affect the transaction, especially if all of his duties have not ceased. So, the guardian cannot procure an acknowledgment of settlement from his ward, and a written declaration to the probate court to discharge the guardian, shortly after the majority of the ward, without a just and full account or disclosure of the true condition of the accounts.</p> <p>4. Same; Settlement; Burden of Proof. — The burden is on the guardian to show that he dealt fairly with the ward and fully communicated every fact which might affect her assent to the settlement, in an action between the ward and guardian to set aside a settlement made shortly after majority.</p> <p>5. Same; Payment of Interest. — Where a guardian made a partial settlement in 1891 and made no settlement afterwards and was discharged in 1898 upon acknowledgment of full settlement, procured from the ward, the guardian was chargeable with simple interest on all funds held after partial settlement.</p> <p>6. Pleadings; Conclusiveness on Pleader. — Where the guardian charged himself with interest on an item from the same period as claimed by the ward and allowed by the register, in his statement of his account attached to his answer, he is bound thereby, and cannot thereafter claim that interest should have been allowed for a less period.</p>

Heard before Hon. Thomas H. Smith. Bill by Leonard D. Mullin against Thomas M. Johnson and others to annul a will. From a decree for respondent complainants appeal. The relation between the testatrix and appellee is that of confidential relation. — Holt v. Agnew; 67 Ala. 360.

Heard before Hon. W. L. Parks.- Bill to remove a cloud from title by W. M. Parker against the Miller-Brent Lumber Company.

Heard before Hon. H. B. Foster. Bill by G-. W. Yan Hoose, and others, against Willie T. Whittaker, to quiet title. Decree for complainants and respondent appeals.

<p>Appeal from Geneva Obancery Court.</p> <p>Heard before Hon. W. L. Parks.</p> <p>Bill by A. M. McKinnon against Dutch Walden, and others to specifically enforce two contracts in reference to land. Decree for complainants and respondents appeal.</p> <p>Such possession as is required was not shown. — Reddick v. Long, 124 Ala. 267; Adler v. Sullivap,, 119 Ala. 562. The injunction was improvidently granted. — Dugan v. Neville, 127 Ala. 471; High v. Whitfield, 130 Ala. 444; Keller v. Burlington, 101 Ala. 367. The description is not definite enough to authorize specific performance. — Alba v. Strong, 94 Ala. 163; Daniels v. Collins, 57 Ala. 685; Johnston v. Jones, 85 Ala. 287. The bill is multifarious. — McIntosh v. Alexander, 16 Ala. 87; Clay v. Gurley, 62 Ala. 14; Andrews v. J ones, 68 Ala. 117; Truss v. Miller, 116 Ala. 497. The court should have dissolved the temporary injunction. — Hayes v. Alrivh, 115 Ala. 239; Kidd v. Bates, 124 Ala. 670; Ashurst v. Peck, 108 Ala. 429; s. c. 101 Ala. 499; Davis v. 'Williams, 121 Ala. 542; Haggerty v. Elyton L. C., 89 Ala. 429.</p> <p>There was lack of mutuality in the contract and a want of consideration. — Iron Age Go. v. Tel. Go.. 83 Ala. 498.</p> <p>The chancery court will specifically enforce an award whether under the statute or at common law. — Kirksey v. Spike, 27 Ala. 383; Jones v. Blalock, 31 Ala. 180; Edmundson v. Wilson, 108 Ala. 118; 22 Ency of Law, 1001. Complainant had no adequate remedy. — 133 Ala. 300. The award is not void because the submission is not- in writing. — Coos v. J agger, 14 Am. Dec. 522; Sellick v. Adams, 15 Johns. 197; Shepherd v. Buyers, lb. 497; Whitney v. Holmes, 15 Mass. 154.</p>

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. A. D. Sayre.</p> <p>Action by John Metcalf, Jr., against George D. Noble and others, to prevent a waste and decay of the corpus of an estate. From a decree for complainant, respondents appeal.</p> <p>Tlie case made by the bill is that William V. Metcalf was the owner of certain lands described in the bill, and that he died leaving as heirs his mother and certain brothers and sisters, he being an unmarried man; that his heirs executed to Catherine Sims, commonly known as Ida Graham, a deed to the land, the material part of which, as applicable to this case, is set out in the opinion; that under the proper construction of said deed Catherine Sims and her devises became and were the life tenants in said land, and orator became and was the remainderman, entitled to said lands upon the falling in of said life estate; that by some conveyance, unknown to orator, said Catherine Sims conveyed to the respondents herein the property above described; and that Catherine Sims is still living, and that she and the other respondents refused to make any repairs on the property, and as a result the property was going to decay, etc. The other facts sufficiently appear in the opinion. •</p> <p>The promise of another to devise property is in the nature of a covenant to stand seized to the use of the promisee in the event the promisor owns it at the time of his death, with full power in the promisor to make any bona fide disposition of it to another during his life otherwise than by a will. — Bohlman v. Overall, 80 Ala. 456; Manning v. Pippin, 86 Ala. 862; Johnson v. Hubbell, 66 Am. Dec. 773; VanDuyne v. Vreelancl, 32 N. J. E. 146; Fortesque v. Hanna, 19 Ves. 66; Lewis v. Meddox, 8 Vez. 158. Such an agreement does not fasten a trust upon any specific property, but the trust can only be fastened on such property as the promisor is seized of at the time of his death. — Johnson v. Hubbell, supra; Cochran v. Graham, 19 Vez. 66; Eyre v. Monroe, 26 L. J. Chan. 576; Needham v. KirJcman, 3 V. & A. 531; Gregor v. Kemp, 3 Swanst 404.</p> <p>The contract was good. — Bohlman v. Overall, 80 Ala. 451; Manning v. Pippin, 86 Ala. 362; Gilmere v. Battison, 1 Vernon 47.</p>

Heard before Hou. Thomas H. Smith. Bill by J. M. Miller, as administrator of the estate of Julia Simmons, against A. Y. Sharpe and another. From a decree overruling demurrers to the bill, defendants appeal. The facts made by the bill are. That Julia Simmons died intestate, leaving, surviving her, her husband, R. L. Simmons, and a minor child, Clarence Simmons. (2) That they are the sole heirs at law of the said Simmons.

Heard before Hon. A. H. Benners. Suit by Jesse J. Mitchell and others, by next friend, against O. D. Allis, as administrator, and another. From a judgment for defendants, complainants appealed. Bill by the children of J. L. Mitchell, by next friend, against the administrator and administratrix of the estate of J. L. Mitchell, to require the payment by them to the widow and minor children of the proceeds of the life insurance policy on the life of said J. L. Mitchell.

<p> Bill for Settlement of Partnership. </p> <p>Equity; Reference; Report; Exceptions. — Rule 94, Chancery Practice, is not sufficiently complied with, so as to bring up for review the exceptions to the report of the register, where the exceptions to items in the report are made upon a separate sheet of paper without date of filing or of designation of the interest in the matter of the person by whom it is taken, and which specifies the items by number on a separate sheet of paper containing the statement “reference to evidence to support exceptions” followed by a statement of the number of exceptions, and the evidence relied on to support the exceptions; nor was such a reservation a sufficient compliance with said rule.</p>

<p>Appeal from Barbour Chancery Court.</p> <p>Heard before Hon. Lucian D. Gardner.</p> <p>Bill by L. L. Cocbran against A. T. Lee and others, for the specific performance of a contract of bill of sale. Decree for complainant and respondent appeals.</p> <p>As to the interpretation of the contract attention is called to the following cases. — Pollard v. Maddox, 28 Ala. 325; McGhee v. Alexander, 104 Ala. 121; Electric L. Go. v. Edler Bros., 115 Ala. 148; Seay v. McCormick, 68 Ala. 549; Hunter v. McGrow, 32 Ala. 518; Woodward v. Elrod, 45 South. 647; Comer v. Bankhead, 70 Ala. 136; Williams v. Glover, 66 Ala. 189; 114 Ala. 433; 93 Ala. 378; Bates v. The State, 2 Ala. 453; Lively v. Bobbins, 39 Ala. 461; Sanders v. Sanders, 20 Ala. 710.</p> <p>Under the facts, in this case, equity regards a contract as specially executed. — Wimbish v. Montgomery B. & L. Assn., 69 Ala-575; Mosely v. Norman,- 74 Ala. 422; Turner v. Kelly,. 70 Ala. 85. Express stipulations cannot be changed by-implication. — Blackman v. Ddoling, 63 Ala, 306; Electric L. Go. v. Elder Bros., 115 Ala. 138. On the question of rent as applicable to this case, attention is called to the following authority. — English v. Key, 39 Ala. 113; Gayle v. Randall, 71 Ala. 469; Farris, et al. v. Houston, 74 Ala. 162; Perlmson v. Snodgrass, 85 Ala. 137; 79 Ala-166; 74 Ala. 459; 70 Ala. 624.</p>

Heard before Hon.' Lucian D. Gardner. Bill by Annie O. Engrain against Annie V. Crawford and others for the collection of a legacy. From a decree adjudging a plea insufficient, defendant Crawford appeals. Jacob Bamser died in 1892, leaving a last will and testament, of which his two sons were made executors.

Heard before Hon. W. H. Simpson. Bill by J. C. P. Hammer against Robert Lange and another. Prom a decree holding the pleas insufficient, defendants appealed.

<p> Bill to Quiet Title. </p> <p>1. Quieting Title; Who May Maintain; Executors anil Administrators. — The executrix of a deceased claimant to them cannot maintain a bill to quiet title to lands in her representative capacity, under sections 809-813, Code 1896.</p> <p>2. Appeal and Error; Determination of Appeal. — Where the cause was submitted to the chancellor on the pleadings and proof without an offer by complainant to amend in the court below, .this court will not, on appeal remand a cause for the purpose of permitting such amendment but will reverse and render the decree that ought to have been rendered.</p>

<p> Bill to Prevent Issuance of Bonds and Declare an Election Void. </p> <p>1. Equity: Jurisdiction; Election; Contest. — The contest provided by section 7 of General Acts 1903, p. 59, being inappropriate, does not take from the chancery court jurisdiction to entertain a bill by tax payers against the municipality to enjoin the issuance of improvement bonds because of the alleged invalidity of the election at which the bonds were authorized; and equity has jurisdiction for the additional reason that the bill was filed to prevent the misuse of corporate power — the illegal creation of a debt against a municipality.</p> <p>2. Municipal Corporation; Election; Bond Issue; Constitutional Provisions.- — Section 222,’ Constitution 1901, declaring that the ballot shall contain certain words, in so far as it prescribes the form of ballot, is mandatory, and a failure to use the form prescribed invalidates the election.</p> <p>3. Same; Bonds; Election; Ballots. — Under Section 222, Constitution 1901, on an election by a municipality to authorize a bond issue, .■the ballot used should contain the form prescribed by the Constitu- . tion, and should specify in the space “for” and “bond issue,” and in the space “against” and “bond issue,” the character of the bond to be voted on; and a ballot containing the caption announcing the general purposes of the election, and on two separate lines, with marginal extensions in each side, the words, “for bond issue” aud “against bond issue,” and below this, in parenthesis, a statement describing the bonds, including the amount, rate of interest, time, denomination, and purpose, was not a compliance with this provision, and an election held with such ballot was void.</p> <p>4. —Mimicipal Corporations; Bonds; Several Issues; Election.— Where separate ballots .were provided for each set of bonds to be issued, it was no objection to the validity of the election that an election was held for each set of bonds at the same time and place.</p> <p>5. Same; Double Pttrpose. — The fact that a proposed- bond issue to purchase a water works and electric light jjlant was submitted to the electors in that shape did not invalidate the election, as involving the submission of a double purpose, the reasonable presumption being that the same comprised but one scheme of municipal improvement.</p>

Heard before Hon. C. 0. Nesmith. Motion by M. L. Ward as an administrator de bonis non of the estate of Zuma Allred against H. K. White, for a summary judgment against him as attorney for failing to pay over money collected by him. Judgment for plaintiff and defendant appeals. Appellee is not entitled to tlie money.

Original petition in Supreme Court. Petition by Henry B. Gray for a writ of mandamus to the chancellor of the northwestern chancery division to permit him to intervene in a cause pending in his court. The petitioner, Gray, is not suing for the South & North Alabama Railroad Company; but for himself and other minority stockholders. — See E. T. V. & G. B. B. v. Gray-son, 119 TJ. S. 240; Central B. B. of N. J. v. Mills, 113 U. S. 249.

Original petition in the Supreme Court. Petition for mandamus by James W. Hurt as executor of the estate of H. H. Hurt, deceased, for a rule nisi to the chancellor of the southwestern chancery division to require the annullment of a decree appointing a receiver, etc. Equity will never order a discovery the effect of which might be to expose the party malting it to a criminal prosecution or to pains, forfeitures or penalties.

Heard before Hon. A. D. Sayre. Motion for summary judgment by J. L. Hall and L. B. Farley, as trustees, against Gunter & Gunter for money collected by them as attorneys and deposited in the court to await a determination by tbe court as to who was entitled thereto. From a judgment overruling the motion, the movers appeal.

Clair Circuit Court. Heard before Hon. John W. Inzer. Petition by the state on the relation of Sam Roberson against the town of Pell City, and its board of mayor and aldermen, in the nature of a quo warranto for ouster, and to annul the incorporation. From a judgment denying the petition, relator appeals. Quo warranto is the proper remedy. — West End v. The State, ex rel., 138 Ala. 295; Sec. 3420, Code 1896.

Heard before Hon. A. D. Sayre. Mandamus by .Price Williams, Jr., as judge of probate of Mobile county against W. W. Brandon as State Auditor, to require Mm to draw a warrant for certain fees alleged to be due officers of Mobile county, arising from sales of land bought in by tbe state at tax sale. From a judgment for petitioner, respondent appeals.

Heard, before Hon. 1). W. Speaks. - Condemnation proceedings by the Long Distance Telephone Company against Max Schmidt, and others. . From a judgment for defendants, plaintiff appeals. Most of the facts are stated in the opinion of the court.

<p> Appeal From Order Denying Application for Re-hearing. </p> <p>Appeal and Error; Dismissal; Void Judgment. — An appeal from an order of a judge, made in vacation, denying a petition for rehearing, filed under section 3342, Code 1896, will be dismissed, since under the provisions of section 3346, Code 1896, such petition must be tried before the court, and a trial and order entered by the judge in vacation is void.</p>

<p> Violating Municipal Ordinance. </p> <p>1. Evidence; Res. Gestae; Other Transactions. — 'Where a witness testified that he called the defendant from his room and paid him for whiskey he had bought earlier in the day ,and told him that he wanted another pint, the court properly refused to exclude the statement concerning the payment for the whiskey previously bought, since it was part of the res gestae, and to have done so would have left the sentence without meaning.</p> <p>2. Witnesses; Impeachment; Bias.-^-A witness may be asked, on cross examination, if he had not taken enough interest in the prosecution to follow the proceedings before the chancellor on an application for reduction of bail, as tending to show his animus for and bias towards the defendant.</p> <p>3. Appeal and Error; Harmless Error; Exclusion of Evidence.— Where the witness subsequently described the location of the rooms, the error, if any, in refusing to permit him to state whether it was possible for anyone to get into the defendant’s room without passing through witness’ room, was rendered harmless.</p> <p>' '4. Municipal Corporation; Violating Ordinances; Conduct of Trial. —An appeal from a conviction in the recorder’s court to the city court for the violation of an ordinance is still the same case and governed by the same rules as to the admissibility of evidence, and the proof necessary for a conviction, although the trial is de novo.</p> <p>5. Words and Phrases; “Quasi." — The term, “quasi,” marks a resemblance and supposes a difference, and is not very definite.</p> <p>6. Municipal Corporations; Violation of Ordinances; Prosecution; Nature of Proceedings. — Although not strictly within the definition of a criminal case, because not against the state in its sovereign capacity, a prosecution in the circuit or city courts for the violation of a municipal ordinance partakes of the nature of a criminal prosecution, and is subject to the same rules of evidence; and this is especially true where the offense is punishable by imprisonment or hard labor, and the rule that to justify a conviction, the evidence must establish guilt beyond a reasonable doubt is applicable on a trial de novo in the city or circuit court on appeal from a conviction in the recorder's court for violation of a municipal ordinance.</p> <p>7. Witnesses; Competency; Husband and Wife. — The wife of a defendant is not a competent witness in his behalf in a prosecution for violation of a municipal ordinance in the circuit or city court, on appeal from a conviction in the recorder’s court.</p>

Heard before Hon. John H. Disque. ' Action by Thomas L. Johnson, against Spoon Mot-low. From a judgment granting defendant’s motion to have judgment against his satisfied, M. B. Johnson, plaintiff’s executor, appeals. Appellant’s intestate sued Collier, and recovered a judgment against him in the sum of $S65. The suit grew out of money Avon by Collier on a wager from Johnson. Johnson also sued MotlOAA1, and recovered judgment against him for $461.33, besides costs of suit.

Heard before Hon. A. H. Alston. Application for mandamus, on relation of Henry Jackson, against B. E. Mobley, Clerk of the Circuit Court of Greene County. A demurrer to the application was •sustained, and the writ denied, and relator appeals. The duty of the circuit clerk is to promptly enter the names of witnesses on the subpoena docket upon return executed by .the sheriff.- — -Sec. 934, Code 1896; Jones v. The State, 136 Ala. 116.

<p> Appeal from Order Granting New Trial. </p> <p>1. New Trial; Grounds; Verdict Contrary to Evidence. — If the number of trees cut were less than the number named in the complaint. and for which recovery was had, the verdict for plaintiff and the judgment thereon was properly set aside, and a new trial ordered.</p> <p>2. Same; Revino of Motion Granting a Reto Trial. — This court will not reverse a judgment granting a new trial on the ground of insufficiency of evidence unless the evidence plainly supports the verdict.</p>

Heard before Hon. Samuel E. Greene. Contest of election, as to enlarging territory of the City of Birmingham, by J. N. Sigsbee and another against the City of Birmingham. From a judgment dismissing the petition, contestants appeal.

Heard before Hon. Samuel B. Beown. Action by Sallie Williams against B. F. Hardeman. From an order setting aside a verdict for plaintiff, and granting a new trial, defendant appealed. The facts and the pleading in the original case appear in a former report of the case in Hardeman v. Williams, 150 Ala. 415, 43 South. 726, 10 L. R. A. (N, S.) 653.

<p> Partition. </p> <p>1. Adoption; Inheritance hy Adopted Children; What Law Governs. —Although the statutes oí a foreign state confers the right of inheritance on a child adopted under them, such statutes have no extra territorial operation, and an adoption under them does not confer the right of inheritance in this'state.</p> <p>2. Courts; Decisions; Rule of Property. — The decisions of this court settling the right of descent and ownership of property, become rules oi property, and where such decisions have stood for many years this court Avill follow them as such, though it may conceive them to be erroneous.</p>

<p> Action to Recover Taxes. </p> <p>1. Appeal and Error; Harmless Error; Ruling on Demurrer.— Where an amendment was filed under which the same proof was admissible as would be necessary for a recovery under the origina: count, any error in sustaining demurrer to the original count is harmless.</p> <p>. 2. Municipal Corporation; Assessment; Rates. — Section 45 1-2 of the Bessemer City Charter is void as contravening the provisions of section 216, Constitution 1901.</p> <p>3. Discovery; Failure to Answer Interrogatory. — A plaintiff is not entitled as of right to a judgment on refusal of defendant to answer interrogatories, since under section 4055, Code 1907, the court has a discretion as to which of several courses it will pursue in that event.</p>

Heard before Hon. D. W. Speake. Ejectment by George Malone, and others, as trustees, against Ida R. Lecroix. Prom a judgment for plaintiff, defendant appeals. Adverse possession, uninterrupted, for ten years creates title which will defeat ejectment. — 78 Ala. 61; 92 Ala. 246; 98 Ala. 181; 104 Ala. 191; 62 Ala, 83; 68 Ala. 383; 18 Ala. 417; 90 Ala. 309; 80 Ala. 304; 1 Ency. Law, 825-883; 1 C'yc. 1135, 1136, 1137, 1153; 6 Lawson R. R. & P. 4402; Tiedman Real Property ,546.

Heard before Hou. Samuel B'. Browne. Action by John Doe, on the demise of Stephen J. McCarty, against Richard Doe, Thomas C. Barrett, and others. From a judgment for plaintiff, defendants appeal. The sheriff’s deed was subject to the objections interposed to it. — Ayers v. Roper, 111 Ala. 652; Sec. 2419, Code 1852. The city Atlas was not shown to be a true or correct representation of the property sued for. — Humes v. Bernstien, 72 Ala. 558.

Heard before Hon. D. W. Speaks. Ejectment between William G-. Hodges and others and B. P. Wallace and others. From the judgment, Hodges and others appeal. Counsel discuss the pleadings and the action of the court thereon, with citation of authority, but does not discuss the question decided.

Heard before Hon. W. H. Sprott. Ejectment by James E. Cochran against George Kimbrough. From a judgment for defendant as to part of the lands sued for plaintiff appeals. The following charges were refused to the plaintiff: (1) The charge first discussed in the opinion was the general affirmative charge to find for the plaintiff.

Heard before Hon. Henry B. Foster. Action by Annie E. Hickson and others against G. W. Van Hoose and others. From a judgment for plaintiffs for a one-third interest in the property and defendants for two-thirds interest, both plaintiffs and defendants appeal. The record presents no disputed evidence of fact. The plaintiffs sue as heirs at law of Barton F. Dickson, who died May 10,1904.

Heard before Hon. W. W. Haralson. Ejectment by Pink Carter, et al., claiming as the heirs at law of Elizabeth Couch, nee Carter, against William Couch, claiming by curtesy as the husband of Elizabeth Couch. Judgment for defendant and plaintiffs appeal. The clause, called clause B, in the will .is a contingent executory devise.— Rosenan v. OMldress, 111 Ala, 214. It is not void for remoteness or uncertainty.- — McRea v. Means, 34 Ala. 349; Rosenau v. Childress, supra.

Heard before Hon. A. H. Alston. Ejectment by Maigiana Zimmerman against E. E. Harwell and Bedford Harris. Judgment for plaintiff and defendant appeals. The court erred in excluding the mortgage from appellee to appellants.— Sellers v. Sellers, 98 N. C. 133; 93 N. C. 624; 98 Ala. 481; Bailey v. Bailey, 35 Ala. 687; 108 N. C. 134; 5 Cush. 483; 9 Ired. 218; 21 Me. 156; 21 Cal. 390; 68 Me. 386; .64 Me. 551.

■ Appeal from Montgomery City Court. Heard before Hon. A. D. Sayre. Ejectment by Bessie W. Walker against Elizabeth A. Wyman. Judgment for defendant, and plaintiff appeals. The action taken •here as. shown by the evidence was a fraud. — Kirk v. Smith, 9 Wheat, 288.

Heard before Hon. John T. Lackland. Ejectment by W. K. English and others against James H. McCreary and others. From a judgment for defendants, plaintiffs appeal. Plaintiffs are the heirs at law of Martha English, nee Kemp. The defendantts are the heirs at law of Samuel McCreary. Martha English was one of the four younger children of S'amuel Kemp, whose will is referred to in the opinion of the court.

Clair Circuit Court. Heard before Hon. A. H. Alston. Ejectment by D. P. Rankin, Jr., against Walter Dean and others. Judgment for defendants, and plaintiff appeals. As conclusive of the fact that the court was in error in its rulings the court’s attention is called to the following cases. — Chapman v. Classell, 13 Ala. 50; Borst v. Simpson, 90 Ala. 373. The plaintiff must have the legal title both at the commencement of the suit and at the time of trial. — Etowah Min.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. Ray Rushton, Special Judge.</p> <p>Unlawful detainer by H. H. Parker against Ella Shepherd. From a judgment for plaintiff, defendant appeals.</p> <p>A suit was instituted by H. H. Parker, and was afterwards amended by inserting the words, after H. H. Parker, “for the use of Mark D. Brainard,” to whom Parker had sold and deeded the property. The facts tended to show that the property was once the property of George Singo, the grandfather of Will and Ella Shepherd; that the property was set aside to Dorcas Singo, the widow of George, and she conveyed the property to Parker. Will Singo and Mike Shepherd attorned to Parker as landlord, but Ella Shepherd did not. The evidence was in conflict as to whether Ella Shepherd was holding in her own right, or as to whether she was under her brother, who attorned to Parker. Before suit was brought, but while defendants were in possession, Parker conveyed to Brainard. The demand was made upon Ella Shepherd, Mike Shepherd, and Will Singo to vacate by H. H. Parkker. Objection was taken that Parker, having parted with the right of possession, could not make the demand.</p> <p>As to notice to quit, counsel cites Cooper v. Gomibrill, 140 Ala. 186; Post v. Bohner, 23 N. W. 508; Barmoell v. Stevens, 142 Ala. 614. One cannot be guilty of unlawful detainer until a demand is made and a refusal to surrender.— Finley v. M a gill, M. App. 481; Coming v. Goree, 22 Kan. 615. The suit should have been brought in the name.of Parker for the use etc., and not in Parker individually. —Cotoan v. Campbell, 31 South. 429; Dwine v. Brown, 35 Ala. 356; Cooper v, Gam-brill, 146 Ala. 186.</p> <p>The motion to dismiss this appeal should be sustained. — Sellers v. Smith, 143 Ala. 566. It was proper to institute this suit in the name of H. H. Parker, the original landlord and from whom Brainard, for whose use the suit was brought, acquired title. — Cooper v. Gambill, 146 Ala. 184; Dwine v. Brown, 35 Ala. 596. The court committed no error in allowing Parker to amend by adding for the use of Márk D. Brainard.” — Cooper v. Gambill, 146 Ala, 184; Dwine v. Brotan, 35 Ala. 596. In this case the notice was given as required by law. Cases Supra.</p>

<p> Action for Breach of Contract. </p> <p>1. Landlord and Tenant; Relation; Statute. — Where one party furnishes the land for raising a crop, and another furnishes the labor and the team to cultivate it, with a stipulation for a division of the crop between them, the relation of landlord and tenant exists under section 2711, Code 1896; the status fixed by the statute being contractual.</p> <p>2. Breach of Contract; Pleading. — In actions for breach of contract the terms of the contract must be alleged with certainty, and the provisions imposing the obligations sought to be enforced must be averred distinctly and positively, and not merely by inference, or generally, or argumentatively.</p> <p>3. Pleading; Certainty; Test. — A cause of action must be alleged with sufficient certainty and precision to enable defendant to defend and to plead a judgment therein in bar of another recovery.</p> <p>4. Landlord and Tenant; Renting on Shares; Action by Landlord; Sufficiency of Complaint. — A complaint in an action for a breach of contract brought by the landlord against the tenant, who was to cultivate land furnished by the landlord, the crops to be divided between them, which alleges only that defendant .agreed to plant the land in corn and cotton and give the landlord one-fourth of the corn and one-third of the cotton, but that the tenant did not cultivate a large part of the land, and cultivated the remainder in an unhusbandlilie manner, is insufficient; it not being alleged how much of the land would grow those crops, or how much was to be planted m each of the crops, or was planted in said crops and not properly cultivated.</p>

Heard before Hon. S. L. Brewer. Action of assumpsit by the Phonoharp Company against Mattie C. Cook, administratrix. From a judgment for plaintiff, defendant appeals. The record shows no service of any nature. It shows the judge’s bench notes and a judgment nil dicit with writ of inquiry, followed by the entry of a judgment by default with a writ of inquiry.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. A. O. Lane.</p> <p>Assumpsit by the Chattanooga Savings Bank against A; B. Tanner. From a judgment for defendant, plaintiff appeals.</p> <p>The charter of a corporation is a contract, and may not be changed or recallled, unless so specified at the time of its creation, or at the time of its creation the legislature had so decreed. — Sadler v. Langham, 34 Ala. 311; Tuscaloosa A ssn. v. Green, 48 Ala. 346; State v. Tombeclcbee Bank, 2 Stew. 30. The Act of Nov. 1907, is not invalid. The mention of a section not amended or repealed thereby is mere supplusage. — Judson v. Bessemer, 87 Ala. 242; Grandy v. The State, 86 Ala. 20.</p> <p>Counsel discusses the various code sections and acts involved in the case, but cites no authority in support of the contention that the Act of November, 1907, is invalid.</p>

<p>Appeal from Butler Circuit Court.</p> <p>Heard before Hon. J. C. Richardson.</p> <p>Action by Flowers & Peagler against the W. T. Smith Lumber Company for breach of contract. From a judgment for defendant, plaintiffs appeal.</p> <p>After reciting the names of the parties and the enterprise in which they were engaged, the contract recites that whereas, it is of very great benefit and advantage to both of said parties in the operation of their said railroad and mills, and in carrying on their business generally, that they should not come in conflict with each other in the purchase of lands and timber for their respective mills, or in the location of their respective railroads; and whereas, it will be of mutual benefit to said parties to have an understanding and agreement, to be faithfully kept and performed by each of said . parties, that one of said parties shall not buy, own, or hold, either for himself or for another, any timber or logs or lands, or operate or be interested in a mill, or build, own, or operate, or be interested in, a railroad, on the other side of said line; and whereas, said parties desire to avail themselves of all the benefit which could result to them by reason of an understanding and agreement : Now, therefore, in consideration of the premises, and of the sum of $10 cash in hand paid, by the parties thereto to the other party, etc., the party of the first-part (the defendant) shall not' buy, own, hold, or be interested in any land or timber, nor cause the same to be bought, and shall not build, own, or operate any mill, nor build, own, or operate any railroad north of said line, but in conducting and carrying on its said business, and in purchasing land, timber, and logs, and in constructing rail or other roads, mills, etc., shall confine itself to the territory altogether south of said land. The samé covenants and stipulations are made with respect to the same operation by the parties of the second part (the plaintiffs) to the north side of the line. The line intended to be designated began at the southwest corner of section 13, in township 8, range 14, in Butler county, and extended according to the land in an easier* ly direction to a point on the Central Railroad in Crenshaw county, a distance of over 20 miles. The contract also contained the stipulation that for each and every violation of this contract the party violating the same shall be due to the other party, as liquidated damages. a sum equal to on-half the value of the property purchased or caused to be purchased, owned, or held in violation of this contract, and in any suit between the parties, their heirs, successors, or assigns, for a breach of violation of this contract, it shall only be necessary to prove this agrément and violation thereof, the property purchased or caused to be purchased, owned or held contrary to the terms of this contract, and the value thereof, and plaintiff shall be entitled to a judgment for one-half the value thereof. This contract is set out in ex-tenso in the complaint, and it is further alleged therein that at the time of the making of the contract, and as a part of the consideration therefor, plaintiffs conveyed to the defendant certain lands on the south side of certain lines, and defendant conveyed to the plaintiffs certain lands on the north side of said line. No reference is made to these deeds in the contract. The complaint then alleges that defendant purchased from various persons timber and timber lands in violation of said contract, and seeks to recover one-half the value of the property thus purchased as damages. There was considerable pleading in the case not necessary to be here set out. At the conclusion of the testimony the court gave the general affirmative charge for defendant.</p> <p>Had the contract been in the name of the majority of the stockholders referred to in the replications, or in the name of the directors, as the case may be, they would certainly have been estopped from denying the authority of W. T. Smith to execute it, for when one in whose name the contract is made accepts the benefits of that contract, he estops himself from denying it was authorized by him. — Goodman v. Winter, 64 Ala. 410; Shejf eld v. Harris, 101 Alá. 564; Marco v. Glisby, 130 Ala. 510; Bell v. Craig, 52 Ala. 215; Lindsay v. Cooper,. 94 Ala. 170; Tobias v. Morris, 119 Ala, 228; Smith v. Lusk, 119 Ala. 394. And a corporation may, by silent acquiescence with knowledge on the part of a majority of its governing body, estop itself from denying that the transaction made on its behalf by one of its officers was in fact authorized by it. — Bibb v. Hall & Farley, 101 Ala. 79; Mobile & Montgomery Rwy. Co. v. Gilmer, 85 Ala. 434; Ala. Great Southern R. R. v. South & North Ala. R. R., 84 Ala. 578.</p> <p>Independent of our statute upon the subject, the fraudulent concealment of a cause of action, prevented the running of the bar of the statute, and our statute exempting from the prescribed limitation causes of action based upon fraud, is held to be declaratory only of the common law, and fraud in the concealment of the existence of a cause of action is sufficient, irrespective of whether the action itself is in tort or in contract. —Wood on Statute of Limitations, § 275; Snodgrass v. Branch Bank of Decatur, 25 Ala. 125; McCarthy v. McCarthy, 74 Ala. 554; Bromberg v. Sands, 127 Ala. 416 417; Washington v. Norwood, 128 Ala. 401.</p> <p>Where an instrument is executed under the corporate seal of a corporation, the presumption is that the officer who executed the conveyance had authority to execute it. — Jinwright v. Nelson, 105 Ala. 399.</p> <p>The courts will not declare a contract illegal unless its illegality is made to plainly appear. — Roussillon v. Roussillon, L. F. 14 Ch. Div. 351; Malian v. .May, 11 M. & W. 653-667; Mills v. Dunon, 60 L. J. R. (Ch. Div.) Part 1, 363. It is not the form of the contract that makes it void as against public policy, but its effect, and the effect of the contract must depend upon the subject matter to which it relates. — Gibbs v. Consolidated Gas Go., 130 U. S. 396; Alger v. Thacker, 19 Pickering, 54; Trenton Potteries Go. v. Olliphant, 56 N. J. 680; Kiefer v. Standard Oil Go'., 11 Ohio, 114. The contract is not void as in restrainst of trade. — Tuscaloosa Ice Go. v. Williams, 127 Ala. 110; McGurry v. Gibson, 108 Ala. 451; Junction B. B. & Go., 23 Atl. 287 (49 N. J. Eq. 317); Beale v. (Phase, 31 Mick. 521; Oregon St. Nav. Go. v. Windsor, 20 Wal. 364; Mathews v. Assoc. Press of N. Y., 36 N. Y. 33; Anthony Hitchcock, 71 Fed. Bep. 659; Morse v. The Twisrt Drill Mach. Go., 103 Mass. 373; Horner v. Gravers, 7 Bing. 743; Bobbins v. Webb, 68 Ala. 393; Authorities cited in 24 Am. & Eng. Ency L. p. 851, Note 1.</p> <p>The principle that, Avhere the record discloses that the plaintiff has no cause of action, then any ruling against him, if erroneous, is error without injury, irrespective of Avhether the ruling is on demurrer to the complaint, or to the pleas, or in the admission or rejection of evidence, or in the charges given or refused, is, of course, thoroughly well settled in this State; Pulliam v. S chimp, 109 Ala. 179; Holmes v. Hannon, 59 Ala. 510; Smith v. Alexander, 87 Ala. 387; Kimbrell v. Bobinson, 90 Ala. 339; L. & N. B. B. Go. v. Johnson, 128 Ala. 634; Hill v. McBryde, 125 Ala. 542; Griffin v. Bass Foundry Go., 135 Ala. 490; McAlester, etc. v. Florence, etc., 128 Ala. 240; Bienville v. Mobile, 125 Ala. US’,'Johnson v. Philadelphia Mort. & Trust Go., 129 Ala. 515.</p> <p>The contract is, by its very terms, one, the manifest purpose and effect of Avhich was to injure the public, by fixing the price of timber and timber lands owned and held for sale by the public in that vicinity, (and in which neither of the parties to the contract had any property-right, title or interest) at less than its real and true value, by preventing or stifling competition among the parties to the contract, who were purchasers or contemplated purchasers thereof, and therefore, tended to promote a monopoly, and also to unlawfully restrain trade, clearly inimical to public policy, and void. —Tuscaloosa Ice Mfg. Co. v. Williams, 127 Ala. 110; Fullington v. Kyle Lumber Co., 139 Ala. 242; Southern Ry. Co. v. Jones, 132 Ala. 437; Robertson v. Robinson, 65 Ala. 610; Moses v. Scott, 84 Ala. 608; Acts of Ala. 1890-1, p. 438; Aclyston Pipe & Steel Co. v. U. S., 175 U. S. 211 (44 L. ed. 136) and notes; Swift & Co. v. U. S., 196 UÍ S. 375; ( 49 L. ed. 518) ; Northern Securities Co. v. U. S., 193 U. S. 179; (48 L. ed. 679) ; Barbie v. Nutt, 4 Pet. 184 (7 L. ed. 825); Fox v. Schoen, 77 Fed. 29; Harding v. American Glucose Co., 74 Am. St. Eep. 189 and notes; Strauss v. American Pub. Co., 64 L. E. A. 701 and notes; Moore v. Bennett, 140 111. 69 (33 Am. St. Eep. 216) ; Union Strawboard Co. v. Bonfield, 86 Am. St. Eep. 211; Stanton v. Allen, 5 Denio, 434 (17 N. Y. Com. Law, 835) ; Nestor v. Brewing Go., 161 Penn. St. 473 (41 Am. St. Eep. 894); Oil Co. v. Adoue, 83 Tex. 650 (15 L. E. A. 598) ; Morris, etc. v. Bardey, 68 Penn. St. 173 (8 Am. Eep. 159) ; Chaplain v. Brown, 12 L. E. A. 428) ; Arnot v. Coal Co., 68 N. Y. 558 (23 Am. Eep. 190) ;Graft v. McConnoughy, 79 111. 346. (22 Am. •Eep. 171; Ciarle v. Needham, 84 Am. St. Eep. 559)</p>

<p> Assumpsit. </p> <p>1. Bills and Notes; Execution; Burden of Proof. — The burden is on plaintiff to show that the note sued on was executed by the defendant, where the plea of non est factum is interposed.</p> <p>.2. Abatement and Revival; Other Actions Pending; Plea. — Where there is no plea of another action pending, or of former judgment rendered, and no evidence thereof in the record, it is error to dismiss an action on the note on motion having for grounds that there was another judgment pending for the same cause or debt in another court.</p>

Heard before Hon. A. A. Evans. Assumpsit by J. B. Long against W. R. Holley and others. Plaintiff took a non-suit, and appeals. Acts 1903, p. 34 ansAvers the motion to dismiss the appeal. Counsel discuss the matters presented by assignments of error, but without citation of authority. Under all the authorities on this subject, before an appeal can be taken under said section, a non-suit must be first taken.

Heard before Hon. W. J. Pearce. Action by S. J. Brown against John D. McCrary for work and labor done. Judgment for plaintiff and defendant appeals. Counsel discuss the allowance of the amendment and cite authority in support of their contention. They insist that the demurrer to the complaint should have been sustained.

<p>Appeal from Mobile Circuit Court.</p> <p>Heard before Hon. Samuel B. Browne.</p> <p>Assumpsit by Alfred Rose against James A. Lewis. From a judgment for defendant, plaintiff appeals.</p> <p>The court erred in overruling plaintiff’s, demurrer to pleas alleging fraud, aud in refusing plaintiff’s fifth requested instruction. — Whiting v. Davidge, 23 App. Deo. 156; Grim v. Grim, 85 Am. St. Rep. 521; Grim v. Griffith, 73 N. E. 198; Powers v. Powers, 80 Pac. 839. The court should have sustained the demurrers to plea A to the 11th and 12th, counts. Chitty on Pleading pp. 572-73; Burns v. Moragne, 128 Ala. 493; Addison on Contracts (8th ed.) star page 1220; Clark on Contracts, p. 674. The court erred in permitting Kimball to testify as to a conversation between Crossley and Lewis, in Rose’s absence. — Barker v. Coleman, 35 Ala. 221; Motes v. Bates, 80 Ala. 382. The court erred in permitting Kimball to testify as to what Lewis said as to the item of 200,000 feet of lumber. — Alexander v. Handley, 96 Ala. 220; Woodruff v. Winston, 68 Ala. 412; Smith v. Flagg, 46 Ala. 624; Fspalla- v. Bichard, 94 Ala. 159; Gordon v. Clapp, 38 Ala.. 357. 16 Cyc. 1202-4.</p> <p>The fact that the party signing the contract could read does not deprive him of the right to set up as a defense a fraud by which he was induced to enter into the contract without reading it. — Beck et al. v. Houppert, 104 Ala. 506; Bank of GuntersrÁlle v. Webb, 108 Ala. 132. The fraudulent insertion in a paper furnished as a true copy of another may operate as such a fraud or misrepresenta> tion as will avoid the contract. — Paysant v. Ware, 1 Ala. 160; Waddell v. Glassel, 18 Ala. 561. The demurrer to Plea A is a mere general demurrer. — Byal i>. Allen, 143 Ala. 227; besides it was addressed to only a part of the plea. — Little v. Marx, 146 Ala. 620. Where one party is unable to perform a condition precedent on his part, the other party is discharged from the contract.— Drake v. Coree, 22 Ala. 415; Clark on Contracts, 649. Testimony irrelevant at the time of its introduction is rendered relevant by the introduction of other testimony, if it was error in the first instance the error is cured. — Allen v. The State, 134 Ala. 164; Scott v. The State,, 30 Ala. 503; Bell v. Chambers, 38 Ala. 660; Robinson v. Allison, 36 Ala. 525. Particular transactions are never admissible to prove custom. — Syson & Co. v. Hieronymus, 127 Ala. 489.</p>

<p>Appeal from Gadsden City Court.</p> <p>Heard before Hon. Jqhn H. Disqtje.</p> <p>Action by the Aberdeen Clothing Company against O. H. Saxon, in which the Sun Insurance Company was summoned as a garnishee. From the judgment against the garnishee, it appeals.</p> <p>In answer to the garnishment, which was served upon W. P. Lay as the authorized agent of the garnishee it answered not indebted, whereupon an affidavit was filed by the attorney for plaintiff, stating that in his belief the answer was untrue, and interrogatories were filed to the garnishee. So far as the record shows no other proceedings were had, and judgment hy default was rendered against the garnishee.</p> <p>The right of appeal is secured by Sec. 2205, Code 1896. On the following authorities the court erred in rendering the judgment' against the garnishee. — Curtis v. ParJcer, 136 Ala. 222; Taliaferro v. Lane, 23 Ala. 369; D. G. & N. O. Ry. Co. v. Grass, 97 Ala. 522; Gaines r>. Beirne, 3 Ala. 115; Bostick v. Beach, 18- Ala. 80; Sanders v. Gamp, 6 Ala. 73; Price v. Thompson, 11 Ala. 875; Fortune v. State Bank, 4 Ala. 385; Bland v. Bowie, 53 Ala. 158; Jones v. Howell, 16 Ala. 695 y Hender son v. Ada. G. L. Ins. Go., 72 Ala. 32; N. G. Bank v. Miller, 77 Ala. 168; Archer v. Bank, 88 Ala. 249; Teague v. Legrand, 85 Ala. 493; Hudson v. Scott, 125 Ala. 172.</p> <p>Counsel insists that the court properly granted the judgment against the garnishee, and cites the following. — D. G. & N. 0. Ry. Go. v. Grass, 97 Ala. 519; Secs. 4055, 4319, Code 1907; Lehman v. Hudmon, 85 Ala.. 135; Birmingham Nat. Bank v. Mayer, 104 Ala. 634; Sec. 4325 Code 1907; Security Loan A.ssn. v. Weems, 69 Ala. 584.</p>

Heard before Hon. W. W. Quarles, Special Judge. Assumpsit by ft. ft. Miles against A. M. Sledge. There was judgment for defendant, and plaintiff appeals. The action was upon a note given for an insurance policy,- and the pleas were the general issue, want of consideration, fraud and misrepresentation in procuring the note, and failure of consideration.

Heard before Hon. John W. Inzer. Action by B. T. Collier against Rebecca Lewis and others. From a judgment for plaintiff, defendant appeal.. The summons and complaint were issued against Rebecca Lewis, M. B. Johnson, and W. H. Barnes. The return of service shows that it was perfected upon Rebecca Lewis, W. R. Lewis, M. R. Johnson, and W. H. Barnes, This was made the basis of a motion to quash and a plea in abatement.

<p> A ssumpsit. </p> <p>Appeal and Error; Right of Review; Who Entitled to Appeal.— Where the record shows the judgment to be against the defendant partnership, the appeal should be taken in the partnership name and the individuals composing the firm may not prosecute an appeal therefrom.</p>

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. A. D. Sayre.</p> <p>Action by Oscar J. Pruett against tbe Provident Saving Life Insurance Company. Judgment for plaintiff. Defendant appeals.</p> <p>Tbe history of tbe case is sufficiently stated in tbe opinion of the court. Pleas 52, 53, 54, and 55, as originally filed, are as follows: “(52) Tbe policy sued on was issued by defendant on tbe written application of the assured, in which be represented that be bad never had any disease of tbe liver, which statement was fraudulent, in this: that, the assured had had malarial fever and enlarged liver in, to wit, 1888, which assured knew when he made such application.” (53) Same as 52, except it alleges that he had never had any sickness or infirmity, except jaundice in 1893, from which he had made a good recovery, and that such representation was fraudulent, since assured had had jaundice in 1884. (54) game as 53, with the allegation that assured had had la grippe in 1888. (55) Same as 53, except the allegation that assured had had hemorrhage from the stomach and ulcer of the somach prior to said application. The judgment entry as to joinder of issues sufficiently appears in the opinion.</p> <p>The defendant offered in evidence the deposition of William E. Stephens, to which plaintiff had duly filed his objections separately and severally to the questions, which objections were sustained by the court: “Question 1. Was said application submitted to the medical director of said society when it was received, and, if so, for what purpose was said submission made?” ■ Objection was interposed that it called for the undisclosed motive or intention of defendant, and not for a statement of facts, and it was immaterial, irrelevant, and illegal. “(2) Would said policy have been issued without his approval? (3) Did you examine application of Seth Green Pruitt, hereto annexed, for the purpose of determining -whether a policy of insurance should be .issued thereon by the society? (4) Was the policy hereto annexed issued as a result thereof? (5) If said application had shown an answer to question 15, part II thereof, that the application had had or then had any disease of the liver, would the said policy then have been issued? (6) If said application had shown such fact or condition, what would the society have done with reference to said application and the issue of a policy thereon (7) If said application liad shown, in answer to question 18, part II of said application, that sometime between 1885 and 1887, or in 1887 or 1888, that said applicant had had a severe attack of malarial fever, with an enlarged liver, Avould you have approved said application? (8) Under such conditions, would said policy have been issued? (9) If you should say, in response to any of the above questions, that said application Avould not have been approved, and that said policy Avould not have been issued, state fully and particularly Avhy. (10) If said policy had shoivn, in ansAcer to question 15, part II of said application, that the applicant then had or had even had pulmonary trouble, or pulmonary tuberculosis,' Avould said policy have been issued? (11) If said application had shown such a fact or condition, Avhat Avould said society have done with reference to issuing said policy? (12) If you say, in response to any of the questions in this interrogatory, that no policy Avould have been issued, state fully and particularly why, and the facts supporting your answer.” Similar questions were propounded to other medical directors and answered. Objections the same as those stated to question 1 Avere sustained to all the other questions and ansAvers.</p> <p>' The folloAving charges Avere requested by defendant: (1) “The court charges the jury that if they find from the evidence that the assured had jaundice, not mentioned in his application, prior to the date of his application for the policy sued on, they must find a verdict for defendant.” (2) General affirmative charge to find for the defendant. (8) “The court charges the jury that, if they find the assured had malarial fever and an enlarged liver prior to his application thereon, such malarial fever and enlarged liver was material to the risk.” (4) “The court charges the jury that hemorrhage from the stomach and ulcer of the stomach, if had by the assured prior to his application therein, would he material to the risk.” (5) “The court charges the jury that jaundice, if had by the assured prior to his application herein, would be material to the risk.” (6) Same as 5, except lagrippe in place of jaundice. (7) Same as 5, except disease of the liver in place of jaundice. (8) Same as 5, except malarial fever and enlarged liver in place of jaundice. (9) “The court charges the jury that the evidence shows conclusively that the assured had a disease of the lungs on the date of his application herein.” (10) “The court charges the jury that the evidence shows conclusively that the assured had pulmonary tuberculosis at the date of his application herein.” (11) “If the jury believe from the evidence in this case that the assured knew, when he made his application for the policy sued on, that he had had hemorrhage from the stomach and ulcer of the stomach prior thereto, they must find a verdict for defendant.” (12) “The court charges the jury that, if they find from the evidence that the assured had had la grippe prior to the date of his application for the policy sued on, they must find a verdict for defendant.” (13) Same as 12, except hemorrhage and ulcer of the stomach in place of la-grippe. (14) Same as 12, except disease of the liver in place of la grippe. (15) S'ame as 12, except malarial fever and enlarged liver in place of la grippe. (16) “The court charges the jury that, if assured made any false representation to the insurer in his application in this case in any matter material to the risk, plaintiff cannot recover.” (17) “The court charges the jury that If the representations made by the assured in his application were made material by an agreement between him and the insurer, and the jury find from the evidence that any of such representations were false, plaintiff cannot recover therein.” (18) “ The court charges the jury that the evidence shows conclusively that the assured had had jaundice prior to the date, of his application therein, not mentioned in said application.” (19) “The court charges the jury that, if they find from the evidence in this case that the assured made any false statement or misrepresentation in his application for the policy sued on, they must find a verdict for defendant.” (20) “If the jury believe from the evidence in this case that the assured knew, or had reason to believe, when he made his application for the policy sued on, that he had had malarial fever or an enlarged liver prior thereto, they must find a verdict for defendant.” (21) “The court charges the jury that the assured agreed with -the insurer in this case that all statements and representations made by him in his application were material.” (22) “The court charges the jury that a disease of the lungs, if had bjr the assured prior to his application therein, would he material to the risk.”</p>

Heard before Hon. S. L. Brewer. Action by the International Harvester Company against S. J. Gladney. From a judgment for defendant, .plaintiff appeals. There was no plea denying the execution or the indorsement of the note, or that they were not the property of the plaintiff.

Heard before Hon. H. A. Pearce. Action by R. P. Coleman and others against the Town of Hartford. From a judgment for defendant, plaintiffs appeal. The action is for attorney’s fees alleged to have been rendered to the said town. The evidence showed that the mayor during the time stated called upon the appellant for legal advice pertaining to the municipal affairs of the town, and shows what services were performed.

Heard before Hon. A. D. Sayre. . Action by Mollie A. W. Riley against the Security Mutual Life Insurance Company. From a judgment for plaintiff, defendant appealed. Under a. contract of insurance such as is involved in this case, and containing its provisions with reference to forfeiture for nonpayment of premiums at maturity, the failure to pay on or before maturity works a forfeiture of the policy. Cooley’s Briefs on Insurance, page 2669, et soq.

Heard before Hon. H. A. Pearce. Action by Stough & Hornsby against N. J. Hutto. From a judgment for plaintiffs’ defendant appeals. The complaint was as follows: (1) By account. (2) For work and labor done.

Heard before Hon. A. A. Evans. Action by S. T. Frazer and others against W. B. Burt. From a judgment for plaintiffs, defendant appeals. In order for the court to render a judgment by default against a person, it must affirmatively appear that jurisdiction of his person has been acquired by service of process upon him in the mode and manner prescribed'by law. — Sec. 5301, Code 1907; 11 Cyc, 666. The return here shows no service. — Melvin v. Clark, 45 Ala. 285.

Heard before Hon. A. H. Alston. Action by the Vincent Mercantile Company against' Eliza J. Merrett, administratrix. There was a judgment for plaintiff by default in the justice court, and defendant brought the case by certiorari to the circuit court. Pleas of nonclaim were stricken, and defendant appeals. The trial is de novo. Sec. 488, Code 1896.

<p>Appeal from Anniston City Court.</p> <p>Heard before Hon. T. W. Coleman, Jr.</p> <p>Action by the City National Bank against Eba Scarbrough and another. From a judgment for plaintiff,</p> <p>defendant Scarbrough appealed.</p> <p>Count 1 of the complaint was against the defendant Gus Woodruff, and contained a claim for attorney’s fee and a declaration of waiver of exemptions, with the averment that the note was executed by the defendant Gus Woodruff to one James Keith, Jr., and was by him for a valuable consideration transferred to the City National Bank. The second count claimed of the defendant Eba Scarbrough $100 due by note executed by Gus Woodruff, ivitli the averment that said defendant Eba Scarbough indorsed said note, and that demand for same had been made on Gus Woodruff, one of defendants herein and principal on said note, and payment had been refused, of Avhich demand for payment and refusal to pay said defendant Scarbrough had had notice. Then follow claims for attorney’s fees and a declaration of waiver of exemptions as to personal property and a proper transfer of the note from payee to present plaintiff. Count 3 is against Eba Scarbrough, and is exactly like count 2, except that no declarations as to the waiver of exemptions is made.</p> <p>Demurrers were interposed to the complaint by defendant Scarbrough: “ (1) Because it fails to show that there was any consideration passed to this defendant for his alleged indorsement of said note. (2) It is not alleged that said note was protested for nonpayment at maturity. (3) It is not shown that this defendant had any legal notice of the dishonor of said note at maturity, or notice of protest thereof. (4) For that the demand for payment made upon the principal, and his refusal to pay the said note as in the said count alleged, does not fix upon this defendant as the indorser thereof any liability to the plaintiff in this case. (5) For that it is shown by the terms of said count that this defendant did not waive rights of exemptions by his indorsement of the said note.” He also filed demurrers attempting to raise the question of misjoinder of parties defendant, in that said counts aver causes of action only against Woodruff, and because the suit is brought against the defendant jointly, and no count of the complaint seeks to recover against both of said defendants. The complaint was amended by adding the fourth, fifth, sixth, and seventh counts, which were practically the same as the original counts, with the exceptions that both defendant were joined in each court. Afterwards the defendant Gus Woodruff was stricken from each count, and the defendant Scarbrough thereupon moved for a discontinuance. The other facts sufficiently appear.</p> <p>Counsel discuss the rulinges on the pleadings but without citation of authority. They insist that the power of attorney given by Scarbrough to Noble and held by the bank did not authorize Noble to accept notice of dishonor of the note. —Scarbrough v. Reynolds, 12 Ala. 252; Brantley v. Southern F. Ins. Co., 53 Ala. 554; 1 A. & E. of Law 1000. The court erred in permitting the amendment allowing Woodruff to be stricken as party defendant.— Reynolds v. Simpkins, 67 Ala. 378; Jones v. Englehardt, 78 Ala. 50; Abercrombie v. Knox, 3 Ala. 728; 14 Ency. P. & P. 457. On these same authorities the court erred in overruling appellant’s motion for a discontinuance. The court erred in finding that Scarbrough waived his exemptions. — Jordan v. Long, 109 Ala, 414.</p> <p>The assignments of error as to the rulings on pleading were too general to amount to an insistance. — A la. S. cC- TP. Go. v. Wrenn, 136 Ala. 475. The court did not eiT as to the power of attorney. — Comer Bankhead, 70 Ala. 136. The court did not err in allowing the amendment. — Jordon v. Long, 109 Ala. 414; 8 Oyc. 92, et seq.; Learned v. Moore, 27 Ala. 328; Jones u. Nelson, 51 Ala. 471; Mo eh v. Walker, 42 Ala. 668; Masterson v. Cibson, 56 Ala. 56. Oral notice was sufficient. — Abel v. P. & M. Ins. Go., 92 Ala. 385; Marlin v. Browp,, et al., 75 Ala. 443.</p>

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. A. T). Sayre.</p> <p>Action by W. A. Jackson against Clara M. Parrish for commissions. Judgment for defendant, and plaintiff appeals.</p> <p>S'ome correspondence passed between plaintiff and defendant in reference1 to the sale of a certain lot at a certain price, with agreement, as to the commission to be paid. On March 28th defendant addressed to plaintiff the following letter: “Not hearing from you in reply te my lettei* of Thursday last, I wish to say that I now feel at liberty to withdraw, if T choose, from the proposition under consideration.” On March 29th plaintiff addressed defendant a letter, so much of which as is matei’ial here is as follows: “On receipt of your letter offering' to sell for $10,000, payable $4,000 in cash, balance one year from date at 6 per cent., we saw our client again, but could not make the deal, as lié stated that the main objection to the property was the long and liberal lease held by Mr. Rice. Therefore it looks like the matter is closed, unless you will accept client’s offer of $3,000 cash, balance secured by mortgage at 5 per cent., on terms stated above. We are sorry, indeed, to have put you to so much trouble in the matter, and want to thank you for your consideration of propositions.” On March 30th plaintiff addressed to defendant the following telegram: “Have sold property, $4,000 cash on delivery of deed, $6,000 secured by mortgage, 6 per cent., one year, and received $100 to bind the trade.” This was followed by letters on March 30th and 31st from plaintiff to defendant, inclosing deed and mortgage. On April 2d defendant wrote plaintiff declining to consummate the sale.</p>

Heard before Hon. W. W. Haralson. Action by J. F. Hooper against J. P. Emmett- and others. From a judgment for plaintiff, defendants appeal. Counsel cite the following case in support of their insistence that the court erred in the charges given.- — Markh mi v. Joudon, 41 N. Y. 235; Stanton v. Jerome, 54 N. Y, 480; Gillett v. Whitting, 120 N. Y. 402; Baker v. Drake, 66 N. Y. 518; Gr union v. Smith, 81 N. Y. 25; 26 A. & E.Ency.

Heard before Hon. O. W. Ferguson. Action by Shaler A. Mitchell against the Pennsylvania. Casualty Company. From a judgment for plaintiff, defendant appeals. In 2 Mayfield's Digest, pp. 572-3 (199) it is said: “A charge which assumes a fact to be proved, without refering to the jury the credibility of the evidence offered to prove it, and whether, if credible, it proves the fact, is an invasion of the province of the jury.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. A. D. Sayre.</p> <p>Action by Alex Troy against Hall & Parley. Judgment for defendants, and plaintiff appeals.</p> <p>The contention of the plaintiff in this case is, that the death of one member of a law firm after employment in a cause and while said suit is in progress and unfinished, does not dissolve the relationship of attorney and client, in the absence of an express notice from the client to the surviving partner to that effect; and, further, that it is the duty of the surviving partner to continue the discharge of services to the completion of the unfinished work, unless notified by the client that his services are no longer needed; and although the original employ-ment of the firm may have been on account of the supposed superior ability of the deceased member, the client can not complain unless he can show that damages to him by reason of some unskilfulness on the part of the surviving partner resulted. — Smith v. Hill, 13 Ark. 174; Moses v. Bagley, 55 Ga. 283; Wright v. McCampbell, 75 Tex.; Denver v. Roane, 99 U. s! 355.</p> <p>Parties who are sui juris have the right to make their own contracts and stand upon them as made.— Worthington v. MoGarry, 42 South. 988. In the case of the employment of a member of a firm of attorneys to conduct litigation, the most favorable view of such a contract for appellant is that it is one for the personal services of all the firm. — Little v. Caldwell, 40 Am. St. Hep. 92 and note; 4 C'yc. 953; McGill v. McGill, 2 Mete. 260; Wright v. Campbell, 13 S. W. 293; Clifton v. Clarh, et al., 36 South. 251; Badger v. Cellar, 58 N. Y. Supp. 653; Martin v. Massie, 127 Ala. 504; Worthington v. MoGarry, supra. The common counts are not available to recovery. — Martin v. Massie, supra; Ezell v. King, 93 Ala. 470; Stafford v. Sibley, 106 Ala. 1S9; Darden r. Jones, 48 Ala. 33; Beadle v. Graham, 66 Ala. 99.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. O. W. Ferguson.</p> <p>Action by Sims & White against the North Birmingham Lumber Company. Judgment for plaintiff, and defendant appeals.</p> <p>The bill of exceptions shows that defendant offered a small book called the “check book,” which was used by a colored man named Jack, who superintended the unloading of lumber, but who was not shown to have known where the lumber came from, and who had the lumber piled up in defendant’s yard. It was further shown that the book was of original entry by said Jack, made in the usual course of business, in checking lumber received by the defendant, when it was unloaded from the cars and placed on the yard, and that the negro named Jack made the entries in the book. The book purported to shOAv the amount of culls received from the plaintiff, and with this book defendant’s inspector inspected the lumber on the yard. Evidence Avas then offered to show that the man that made the entries in the book was not in the employment of the defendant at the time of the trial, and had not been for several months prior thereto; that when last seen he was in North Birmingham, and the defendant has no knowledge of the whereabouts of Jack, and did not know whether he Avas in the state or dead.</p> <p>On page 9 of the transcript four charges are set out as plaintiff’s given charges; but this part of the transcript is no part of the bill of exceptions. On page 27 of the transcript, which is a part of the bill of exceptions, the following charges appear: “(1) The court does not intimate to the jury what the contract was, but instructs them that, whatever it was, both parties were bound by it, and either one violating it was liable for the violation, if any. (2) If the jury believe from the evidence that the agreement was not absolute to furnish such lumber as defendant should order absolutely, but only if they could or had the timber, then that contract would prevail, and there would be no obligation to furnish it unless they could or had the timber.”</p> <p>The demurrers referred to seek to raise the question that the count served on the Mitchell Lumber Company was not the count or complaint under which they were then proceeding, as the party defendant had been changed to the North Birmingham Lumber Company.</p> <p>The court erred in proceeding without noting the change in the name of the corporation. — Steiner Bros. v. Stewart, 184 Ala. 568; Western By. of Ala. v. McCall, 89 Ala. 375. The record admitted in evidence of the change of name was not the original file, and the statute does not provide for copy in such cases being evidence. — Hammond v. Blue, 132 Ala. 337; Farroto v. Railway, 109 Ala. 448; Jones v. Haiglcr, 95 Ala. 529. The several counts of the complaint Avithout amendment claimed of the Mitchell Lumber C'o.- — Bryant v. So. By. Co., 137 Ala. 488; Lawton v. Biclcetts, 104 Ala. 430. The book made by Jack was competent original evidence. — Bolling v. F any in, 97 Ala. 619.</p> <p>The bill of exceptions cannot be considered, as the order extending the time was made by the court and not by the presiding judge. — Local Laws Jefferson Co. 589; Moss v. Moscly, 148 Ala. 168. In the case at bar, there is no mistake whatever about the real defendant, and none is claimed. No plea in abatement is filed, but defendant does appear, and, after kicking about some immaterial matters, without objecting in the only way authorized by law, to-wit, plea in abatement, proceeds to trial on the merits of the cause. — Welfley v. Shenandoah, etc., Go., 88 Ya. 768; Rex v. Turner, 1 Leach O. C. 536; Traver v. 8 Ave. R. R. Go., 8 Keyes (N. Y.) 498; Beavers v. Baucum, 33 Ark. 722. No harm was done, even if the court was technically incorrect, and, therefore, the action of the ¡court in “proceeding,” if error, was without injury. — Ryan, el al, v. Young, 147 Ala. 660; Garth v. Ala. Traction Go., 148 Ala. 96; Huggins v. Sou. Ry. Go., 148 Ala. 153; Dorough v. Harrington, et al., 148 Ala. 305; Roach v. State, ex rel, 148 Ala. 419; Saunders v. Tuscumbia R. & P. Go., 148 Ala. 519.</p>

Heard before Hon. Sapfold Berney. Action by tbe Masonic Temple Association against B A. Busb, in wbicb defendant pleaded a set-off. From a judgment for plaintiff, denying tbe set-off, defendant appeals. Tbe action declares on eight promissory notes, of $60 each, due and payable monthly.

Heard before Hon. Samuel B. Browne. Action of assumpsit by tbe Howells Mining Company against the Home Ice Factory. From a judgment for plaintiff, defendant appeals. The complaint Avas in the common counts. The pleas were: (1) The general issue.

<p>Appeal from Montgomery Circuit Court.</p> <p>Heard before Hon. J. C. Richardson.</p>

<p>Appeal from Hale Circuit Court.</p> <p>Heard before Hon. B. M. Miller.</p> <p>Action by Jesse Pauley against the Western Union Telegraph Company. Judgment for plaintiff, and de fendant appeals.</p> <p>The facts made by the complaint are that one Poelnitz was the agent of the plaintiff for the purpose of sending him a message as to the stages of the Warrior river, and that pursuant to said agency Poelnitz filed a message with the company at its office in Greensboro, directed to defendant, to be transmitted by wire to Linden, and there mailed by defendant to Myrtlewood; that plaintiff had cattle pastured near the river, and as a result of a failure to deliver the message, which was as to the condition of the river, plaintiff was not notified of its rise, and his cattle were drowned. The demurrers insisted on are that the count sets out a contract and avers a breach of the same, which breach is outside of the terms of the contract, and that the contract sued on shows that the message was to he mailed at Linden, to Myrtlewood, yet said count avers the breach to be that said message was not delivered at Myrtlewood, and said count shows on its face that the contract between plaintiff and defendant ivas to mail said telegram at Linden, yet said complaint fails to aver that the defendant failed to mail said telegram at Linden.</p> <p>In charging the jury the court gave the defendant the following written charge: “I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence that when the telegram was received, and are reasonably satisfied that it was so received, that it was placed in an envelope, stamped and addressed to Jesse Pauley at Myrtlewood, Ala., and deposited in the post office at Linden without delay, then defendant has performed his duty, and plaintiff cannot recover.”</p> <p>The allegation of the breach must be governed by the nature of the stipulation. — 1 Chitty on Pleading (8th Amer. Ed.) 331. If the breach vary from the sense and substance of the contract, and be either more limited or larger than the covenant, it will be insufficient. The question then presented by the demurrer is whether appellant would be liable for the negligence of the post office or not. There can be no doubt about the answer. — Withers v. Knox, 4 Ala. 3 38; 4 Ency. P. & P. 939. The error in overruling the demurrer was not cured by the charges given. — Ala. Cons. Co. v. Wagnon, 337 Ala. 388; Ruckles v. The State, 109 Ala. 2; So. Ry. Co. v. Yancey, 141 Ala. 246; Lundsford v. Bailey, 142 Ala. 319.</p> <p>No exceptions were reserved by bill of exceptions to the motion to strike. — Caston v. Marengo Tmp. Co., 139 Ala. 465. The action is in tort, and the demurrers are untenable.— Krichbaum’s Case, 31 So. 607. The defendant was not compelled to submit an improper issue to the jury and the rulings on the demurrers were not prejudicial to it. — Fuqua v. Gambill, 37 South. 235; Hess v. Hydt Bakery, 108 S: W. 68.</p>

Heard before Hon. John W. Inzer. Action by J. R. Bullard against tbe Alabama City, Gadsden & Attalla Railway Company for personal injuries received. There was judgment for plaintiff in tbe sum of $700, and defendant appeals. Tbe facts and pleadings sufficiently appear in tbe opinion of tbe court, as do those portions of tbe court’s oral charge to which exception was reserved.

' Heard before Hon. John W. Inzer. The common, law prohibiting all stock from running at large never obtained in Alabama. — Hurd v. Lacy, 93 Ala. 428; A. G. S. R. R. Go. v. Jones, 71 Ala. 487. A lawful feuee and failure to have one is defined by statute. — Secs. 1240, and 4245, Code 1907. Courts take judicial notice of the Federal Census, and act thereon. — Hdwldns v. Thomas, 3 Ind. App. 409; State v. Comity Court, 128 Mo. 427; People v. Wiliams, 64 Cal. 87.

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. William Jackson.</p> <p>Action' by Walter L. Hinton against the Birmingham Ry. L. & P. Co., to recover as damages the value of certain household goods alleged to have been destroyed by fire set out by one of defendant’s engines. Charge 1, was as follows: If the jury find for the plaintiff they can assess no more than nominal damages in this case. Judgment for plaintiff and defendant appeals.</p> <p>It is elementary, that the measure of damages is the market value of the goods at the time and place where they were destroyed, and the jury were not authorized to infer what this was, from what they “cost” plaintiff at a wholly indefinite time and place. — Louisville Jeans Clothing Go. v. Lischlcoff, 109 Ala. 136; Alabama Great Southern Railroad Go. v. Moore & Stephens, 109 Ala. 398; Central of Georgia v. Main, 135 Ala. 451; Manchester etc., Co. v. Feibelman, 118 Ala. 308; Southern Railroad Company v. Parnell, 37 So. 925.</p> <p>Counsel discuss the cases cited by appellant, and insist that they have no application to the case. As to the question of value and the evidence relative thereto they cite the following cases. — J. T. & K. W. Ry. Go. v. Penn. Land Co., 9 South. 6S0; Denver S. P. & P. R. R. Co. v. Frame, 18 A. & E. 11. II. Caces, 640; Inter. & G. N. R. R. Co. v. Nicholson, 21 A. & E. B. B. Cases, 122; So. Em. Co. v. Owens, 41 S'outh. 752.</p>

Heard before Hon. W. IV. Haralson. Action by TV. M.S'cott against J. C. Shook, et al, for the recovery of a horse taken by them under the stock law alleged to be in existence in a certain precinct in Jackson county, by virtue of a change in the precinct lines after the stock law election.

<p>Appeal from Mobile Law and Equity Court.</p> <p>Heard before Hon. Saffold Berney.</p> <p>Personal injury action by James Shelton against the General Supply- & Construction Company. From a judgment for plaintiff, defendant appeals.</p> <p>There can be no recovery under the third count of the complaint. — Dresser’s Employer’s Liability Act. 320. There can be no recovery under the forth or fifth counts. — So. Car & F. Co. x>. Bartlett, 137 Ala. 234. The defendant is not responsible for the negligence of the elevator boy.— Dantzler v. Debardelaben C. & I. Co., 101 Ala. 309; Smith v. Pioneer M. & M. Co., 41 South. 475; Cashman v. Chase, 31 N. E. 4. It cannot be contended that the order of Rogers to Tarbett ivas negligent in this case.— Coosa Mfg. Co. v. Williams, 133 Ala. 606; Yorlc r. K. C. 0. cG S. By. Co., 22 S. W. 1081; Wiggins Ferry Co. v. Heilig, 43 111. Ap. 238. The negligence alleged was not the proximate cause of the injury. — Western-By. of Ala. v. Much, 97 Ala. 194; Wilson v. L. & N. B. B. Co., 40 South. 942; Stanton v. L. cG N. B. B. Co., 91 Ala. 286; Home Tel. Go. v. Fields, 43 South. 711; IF. of Ala. By. Co. v. Sistrunk, 85 Ala. 357. The motion to exclude the plaintiff testimony should have been granted, and the affirmative charge should have been given for appellant. —Cobb v. Keith, 110 Ala. 618; Phillips v. Amcricus Guano Co., 110 Ala. 521; Harold Bros. v. Jones Bros., 97 Ala. 638; Markee v. L. & N. B. B. Co., 103 Ala. 160; Tenn. C. I. cG B. B. Co. v. Herndon, 190 Ala. 451; IF. of Ala. By. v. Bussell, 144 Ala. 142.</p> <p>The demurrers were properly over ruled. — L. cG N. B. B. Co. v. Orr, 94 Ala. 604. The court properly sustained demurrers to the pleas. — L. & K. v. Markee, 103 Ala. 160; Osborne v. Ala. S. & IF. Co., 135 Ala. 571. On the authorities cited the court did not err in its other rulings'.</p>

<p>Appeal from Genova Circuit Court.</p> <p>Heard, before Hon. H. A. Pearce. ■</p> <p>Action by J. C. Hinson against the Henderson Law Company and another for the wrongful taking ofm-mule. From a judgment for plaintiff, defendants appeal-</p> <p>Hinson claimed the mule under a mortgage given by one Jenkins to him, that Jenldns was in possession of the mule at the time the mortgage was given to him, and that at the time Black took the mule it was in Hinson’s possession, having been delivered to Hinson by Jenkins under the mortgage. The evidence for defendant tended to show a forcible taking of the mule by Black from Hinson, and the contention seems to have been whether or not Black Avas the agent of the Henderson LaAV Company in the taking of the mule. The evidence further showed that a day or tAvo after the taking the mule Avas in the lot of the Henderson LaAV Company. The date of Jenkins’ mortgage to Hinson Avas December 18, 1905, and it appears to have been recorded on the 21st of December, 1905. There seems to have- been a mortgage given on February 9, 1906, by Jenkins to the Henderson LaAV Company on all his live stock, etc. ■This mortgage is also recorded. This mortgage appears to have been transferred from the Henderson LaAV Company to defendant Black before the seizure of the. mule by Black. The other facts are sufficiently stated in the opinion. The following charges Avere refused to the appellant: (1) The general affirmative charge. “(2) The court charges the jury that the evidence in this case fails to show that the Henderson-Law Company authorized the wrongful taking of the mule in question or afterwards, ratified it with full knoAvledge of all the facts connected with said taking.”</p> <p>The court erred in overruling demurrer to third count. — Southern Bell T. c§ T: Co. v. Francis, 109 Ala. 224. The court erred in admitting in evidence the letter written by Mulkey to appellant, corporation. The President of the- corporation has no more authority to bind the.corporation than any other director has. — 109 Ala. 671; 83 Ala. 260; 10 Cyc. 903. The appellant- Avas entitled to the affirmative charge as requested.- — Anderson v. R. R. Co., 109 Ala. 129; R. R. Co. v. Lancaster, 121 Ala. 471; R. R. Co. r. Daniel, 122 Ala. 365; Moody v. A. C. S. R. R. Co., 99. Ala. 553. As to the rule of the liability of the master for the torts of the servant or agent, attention is called to the following cases. — Hardman v. Williams, 43 South. 726; Goodloe v. M. cG G. R. R. Go., 107 Ala. 233; So. Bell T. cG T. Go. v. Francis, supra; Gity Delivery Go. v. Henry, 139 Ala. 161; Singer Mfg. Go. v. Taylor, 43 South. 210; Palos S. & Go. v, Benson, 39 South. 727. No ratification was shown. — (7. of G. By. Go. v. Smith, 76 Ala. 572.</p> <p>The counts were sufficient. — Burns v. George, 119 Ala. 504; A. G. S. R. R. Go. v. Collier, 112 Ala. 681. There was a ratification. — Bibb v. Hall, 101 Ala. 79; Oswalt v. Smith, 97 Ala. 627. Ratificnlion is equivalent to original authorization.— Holloway v. Harper, 108 Ala. 647. But aside from this the complaint was good. — Hardeman v. Williams, 43 South. 726; Kennon v. Telephone Go., 92 Ala. 399; R. R. Go. v. Hall, 91 Ala. 112.</p> <p>The court did not err in admission or exclusion of evidence. — 10 Ency. Evi. 21; Transportation Go. v. Kavcmaugh, 101 Ala. 1; Foxworth v. Brown, 120 Ala. 59. The court properly refused the affirmative charge.— Garter v. Fulgham, 134 Ala. 242.</p>

<p> Trover. </p> <p>1. Evidence; Documentary Evidence; Effect of Introducing.— Where a document is offered in evidence, as a general rule, it must be taken in its entirety, the part operating against the party offering it, as well as the parts in his favor, and hence, where plaintiff introduced notes given it for the purchase price of property and containing a clause retaining title in said property, and on the back of which were endorsements of the plaintiff by its president transferring the notes, the debts evidenced thereby and the property describd, to anothr person, such endorsements were a part of the note and became evidence upon their introduction.</p> <p>2. Corporations; Officers; Authority to Endorse Notes. — The president of the corporation had the authority to endorse notes of the corporation given for accounts, thereby passing title thereto, where the by-laws of the croporation gave the president management and control of the corporate business and property under the direction of the board of directors, and by an agreement among the stockholders, directors and officers, all the corporation accounts, including notes, were turned over to a trustee.</p> <p>3. Trover; Right of Action; Right to Possession. — A corporation has neither a general or special right to the property upon which to maintain an action of trover, where, prior to the alleged conversion of the property, it has transferred the notes retaining title to the property in question to another.</p>

<p> Malicious Prosecution. </p> <p>1. Principal u/nd Age.nl; Liability of Principal for Prosecution; Evidence. — Where it appeared that the person who made the .affidavit was not a member of the firm, .but was a young man without property employed by defendant to keep the books and receive the money paid in at the store, it was proper to admit evidence of the fact that such person had instituted suit in the name of the firm and collected money on them by check payable to the firm, on the issue of whether or not he was defendant’s agent in instituting the prosecution; it being contended by plaintiff that the transfer to him of the claim forming the basis of the prosecution being merely to relieve defendant from liability on account of the prosecution.</p> <p>2. Same. — Under the facts in this ease, whether or not the person who instituted the prosecution was acting as the agent of defendant with their knowledge so as to render the principal liable was one for the jury to determine.</p>

Heard before Hon. S. L. Brewer. Action by McBuff Gamble against Octavia G.' Posey in trover. From a judgment for plaintiff, defendant appeals. Action for the conversion of a cow.

Heard before Hon. P. N. Hickman. Trover by Daniel Clemmons against Jake Benton. Prom a judgment for plaintiff, defendant appeals. The change in the mortgage was not a material change. 2 Cyc. 177; 2 A. & E. Ency. Law, 185; Panne r. Long, 123 Ala. 285. There must be a change in the legal identity of the paper. — Green v. Sneed, 101 Ala. 205; White Settling'Machine Go. a. Saxon, 121 Ala. 399; Brown r. Johnson, 127 Ala. 292.

Heard before Hon. C. C. Nesmith. Action by Moses House against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff. Defendant appeals. The court erred in permitting plaintiff as a witness to state that the land on which the well was belonged to plaintiff and was his homestead. — Wheeler v. Tutwiler C. Co., 43 South. 15. Counsel discuss other assignments of error relative to evidence but without citation of authority.

Heard before Hon. O. W. Ferguson. Action by D. J. Ponceler against the Palace Livery Company. Judgment for defendant, and plaintiff appeals. The appellee was bailee for hire and reward and the duty was on him to acquit himself of negligence against the prima facie case made out by appellant. — Nig man m Vamody, 112 Ala. 267.

Heard before Hon. Henry A. Jones, Special Judge. Action by AlUred M. Gilliland against [the Sipsey River Lumber Company and others. From a judgment for plaintiff, defendants appeal. The general rule is that those partners only are liable in respect to a tort who are privy to the tort. — Williams v. Kendrick, 115 Ala. 277; Storey on Partnership, sec. 168; Collyer on Partnership, sec. 457; 3 Kent. Sec. 47.

<p>Appeal from Mobile Circuit Court.</p>