Volume 158 — Alabama Reports

Heard before Hon. T. L. Sowell. Seab Pate was convicted of larceny, and be appeals. The evidence as to the swearing of the witness McLaughlin on the former trial was that all the witnesses Avere sworn together, and that he and Mrs. Upton Avere the main witnesses in the case, and was examined and testified on the trial, and that since the trial he had moved to Mississippi, and Avas living there at the time of this trial.

Heard before Hon. Tx-iomas W. Coleman, Jr. Collie Reaves was convicted of the murder of Joel Shivers, and he appeals.

Heard before Hon. W. W. Haralson. Walter Simmons was convicted of murder in tbe second degree, and appeals. Tlie pleas in abatement are sufficiently set out in tbe opinion.

Heard before Hon. A. P. Longshore. Habeas corpus by Jake Lacy against the State to compel petitioner’s admittance to bail. From an order admitting petitioner to bail, the State appeals. The state has the right of appeal. — Sec. 6245, Code 1907; The State v. Durham, 139 Ala. 661; Toicn of Elba v. Rhodes, 142 Ala. 690; Burr v. Foster, 132 Ala. 41. This statute has been declared constitutional. — State v. Towery, 143 Ala. 48.

<p>Appeal from Montgomery City C'onrt.</p> <p>Heard before Hon. W. H. Thomas.</p> <p>Application by Alonzo Bailey for discharge from imprisonment by writ of habeas corpus. Prom an order refusing his discharge he appeals:</p> <p>Section 4730, Code 1896, as amended is violative of the fourteenth amendment of the constitution of the United States, and therefore inoperative and void. The rule of evidence obtaining in Alabama prevents a person from testifying as to his uncommunicatecl motives, purposes and intent, so the defendant was not permitted the opportunity of showing that he entered into the contract in good faith, and that he rescinded it for reasons other than those constituting a crime. — MoCormioh v. Joseph, 77 Ala. 236; Holmes v. The State, 136 Ala. 80; Johnson v. The State, 102 Ala. 1; Brown v. The State, T9 Ala. 51; Harrison v. The State, 78 Ala. 5; Alexander v. Alexander, 71 Ala. 295; Burns v. Campbell, 71 Ala. 271; Burke v. The State, 71 Ala. 377; Wheeless v. Rhodes, 70 Ala. 419. So the defendant was nnable to make evidence for himself. — Harlmess v. The State, 129 Ala. 71. The defendant then was deprived of due process of law. It is conceded by the weight of authority, that if the legislature prescribed what is conclusive evidence or if it takes away from a defendant the fair opportunity to establish his case of defense, the act of the legislature is- contrary to that part of the Fourteenth Amendment of the Constitution of the United States uyhich insures “dme process of law,” and is therefore unconstitutional and void. —Harvey v. Elliott, 167 IT. S. 409; Ex parte Well, 107 U. S. 289; Caplin v. Page, 85 IT. S. 350; Darthmouth College v. Woodward, 4 Wheaton 518. The legislature cannot under the guise of enacting a prima facie rule of evidence, fix a conclusive one. It is unimportant that the legislature calls such a rule prima facie. If it operates as a conclusive-rule it is as baneful in its effect as if it was so called. In either event, it is contrary f.o the constitutional guaranty oí “due process of law.” That the statute in question is offensive to this provision of the constitution cannot be doubted. — Wright v. Cradlebaugh, 3 L. Ed. 341; H ub eg v. Riley, 53 Pa. 112; Clerk o. Mitchell, 64 Mo. 564. The legislature further denied “due process of law” when it amended said statute so as to authorize the court to convict of fraud on no other evidence than that, of the execution of a contract, the failure to return the consideration therefor, in case of its breach or the failure to perform the services provided for in the said contract. The refusal or failure of plaintiff in error to perform such service or to return such consideration gave rise only to a civil action. .He was denied “due process of law” by being burdened with prima, facie evidence of an intent to injure or defraud his employer since the above facts have no relation to nor any tendency to prove a crime. — State v. Beach, 147 Ind. 74; Meadcnocraft v. People, 163 111. 56; People v. Cannon, 139 N. Y. 431; Commissioners v. Merchants, 103 N. Y. 148; Wigmore on evidence, Note 6, Sec. 1364.</p> <p>The said amendment statute further denies “due process of law,” in that, there is an attempted substitution of the judicial department of the State government for the legislature. To raise a prima facie case (which almost invariably establishes the guilt and without which the plaintiff in error could not have been held) it must be shown that the defendant refused or failed to perform the contract “without just cause.” What constitutes “just'cause?” The legislature, contrary to its duty, has not defined it. No attorney can advise what constitute'-- it. No man can tell whether or not he is within the limits of the law, as different juries might reach different conclusions under the same state of facts. Whether or not one should be burdened with a prima facie case depends upon the view reached by the jury, which depends upon elements which no man, with certainty, can foresee. There is no criterion laid down by the statute by which one can regulate his actions so as to know that he is abiding by the law. — United States v. Reese, 92 U. g. 214; James v. Bowman, 190 II. S. 127; C. & N. W. Ry. Co. v. Bey; 35 Fed. 866; Toser v. U. S., 52 Fed. 917; L. X N. R. R. Co. v. Commonwealth, 35 S. W. 129. The statute is repugnant to the fourteenth amendment for it denies to the defendant the equal protection of the law. — C. S. & S. F. Ry. Co. v. Filis, 165 II. 'S. 150; Ex parte Hullman, 60 S. E. 20; Peonage Cases, 123 Fed. 671; Ex parte Brayton, 153 Fed. 986; State v. Williams, 32 S. O. 123; In re Stockton Laundry Co cases, 26 Fed. 611; In re Sam, 31 Fed 681; Harris v. The State, 47 South. 341; Carr v. The State, 106 Ala. 35.</p> <p>Appeal from the decission of the Supreme Court of Alabama, in the case at bar. The Alabama court, in this case as well as others, has held the act valid as to every question raised on the present appeal. — Bailey v. State of Ala., (Case at bar) ; State u. Yann, 43 So. (Ala.) 357; Thomas i;. State, 144 Ala. 77; McIntosh v. State, 117 Ala. 128; Ex parte Riley, 94 Ala. 82. What is due process of law as applicable to the ease at bar? The following cases are cited as conclusive of that proposition.— Dent v. West Virginia, 129 IT. S. 128; Deeper v. Texas, 139 IT. S. 462. We think.it may be stated as a general proposition of law that right of the legislature to establish a prima facie rule of evidence in criminal cases has been recognized by every court, state and federal, in which the question has been presented, and among such cases we cite the following: — Li Sing v. United States, 180 IT. S'. 485, L. 634; Adams v. N. Y., 392 IT. S. 585, 48 L. 515; Ah How v. United States, 193 IT. S. 65, 48 L. 619; Fang v. United States, 149 U. S. 697, 729, 37 L. 905, 918; Commonwealth v. Williams, 6 Gray (Mass.) 1; State v. Beach, 147 Ind. 74; State n. Buck, 120 Mo. 479, 25-S. W. 573; State v. Kingsley, 108 Mo! 139, 18 S. W. 994; Meadowcroft v. People, 163 111 56; Barker v. State, 54 Wis. 368; Robertson v. People, 20 Colo. 279; Yoght v. State, 124 Ind. 358; People v. Gaoinon, 339 N. Y. 32; Board of Commissioners v. Merchant, 105 N. Y. 148. The validity of this provision of the statute has been considered and upheld in three different cases by the Supreme Court of Alabama.: — Bailey v. State, (at bar ); State v. Yayn, 43 South. (Ala.) 357; State v. Thomas, 144 Ala. 77. The act is not a denial or an attempted denial of equal protection, of the L-aw.s. — Moore v. Missouri, 159 U. S. 673; Clark v. Kansas City, 176 U. S. 144; Magoun v. III. Trust & Sav. Bank, 170 U. S. 282; Mobile County v. Kimball, 102 U. 9. 704; Dreyer v. Pease, 88 Fed. 978; Soon Bing v. Crowley, 113 TJ. S. 703; Tinsley v. Anderson, 171 XT. S. 101; Ex parte King, 102 Ala. 182.</p> <p>(These briefs were filed in the XJ. S., Supreme Court on the appeal of this case to that tribunal, and are used here in the absence of other briefs. Reporter.)</p>

Heard before Hon. Albert E. Barnett. From a conviction for petit larceny, Joe Bryant appeals. A criminal case is not pending until tbe arrest of tbe defendant. — 22 A. & E. Ency. Law, 655; State v. Arlin, 39 N. H. 179; 6 Words and Phrases, 5278; Eardnet v. The State, 42 Ohio, 568. Hence this case was not transferred to the law and equity court by the act creating that court, or by the act abolishing the county court.

Heard before Hon. S'. L. Brewer. Dunvard Franklin was convicted of selling spirituous liquor without license, and he appeals. The trial court erred in giving the general charge for the state. The defendant had a distillers license, and he certainly had the right to dispose of his products. —26 Cyc. 70; Sec. 2361 Code 1907.

Heard before Hon. William Jackson. G-. W. Herring and another were convicted for the unlawful sale of intoxicating liquors, and they appeal. The court erred in not quashing the warrant and affidavit, and in overruling the motion directed to same, as well as the demurrers.

Heard before Hon. W. H. Thomas. Dave Barnard was convicted of selling intoxicating liquors without- a license, and he appeals. No brief came to the Reporter. The license was a mere personal privilege to Lenzer, and the scheme resorted to, did not authorize Barnard to sell under such license. — 23 Gyc. 154; Powell v. The State, 69 Ala. 10; Southern Oar & Found. Go. v. The State, 133 Ala. 624; Code 1896, Sec. 2401.

. Appeal from Montgomery City Court. Heard before Hon. W. H. Thomas. John Yung was convicted of violating Act Aug. 2, 1907 (Gen. Acts 1907, p. 518), regulating the opening and closing of saloons and the sale of intoxicating liquor, and he appeals. The demurrer to the indictment was well taken.. — Watson v. The State, 140 Ala. 134; Hornsby v. The State, 94 Ala. 55; Mays v. The State, 89 Ala. 35.

Heard before Hon. W. J. Pearce. Ed. Forbus, was convicted of shooting along or across a public road, and he appeals. The facts as to the organization of the court and grand jury that returned the indictment, sufficiently appear from the opinion.

Hear-d before Hon. W. H. Thomas. Richard Glenn was convicted of hunting on the lands of another ivithout written permission of the owner or agent, and he appeals. The repeal of statute by implication is not favored. — 1 Mayf. 821, The Act of 1907 and of 1888, have a field of operation which is not repugnont the one to the other. — Bossett v. The State, 17 Ala. 496; 12 A. & E. Ency of Law, 290.

<p> Larceny. </p> <p>Larceny; Variance BeUoeen Allegation emit Proof. — Where the indictment charged that the property taken was the property of the Montgomery Street Railway, a corporation, and the evidence showed that it was the property of the Montgomery Traction Company, and there was nothing to show a connection between the two, the variance was fatal.</p>

<p> Em~bmzlement. </p> <p>1 l.-Embeeelement; Agents'; Relation. — Where one party agreed to make a suit of clothes for another person for a Certain price, part of which was to be paid in cash in advance and the rest in the future, but the party refused to deliver the clothes after the first payment was made except upon the payment of the balance due, and also refused to return the payments made, theAelation of buyer’ and seller existed, and not that of principal and agent, so as to render the accused’ guilty of embezzlement under section 6831, Code 1907.</p> <p>2. Principal and Agent; What Constitutes an Agent. — An agent is one who undertakes to transact some business, or to manage some affair tor another by the other’s authority and to account to him for it; and as employed in the statute punishing embezzlement imports a principal, and implies employment, service, or delegated authority to do something in the name and stead of the principal.</p>

Heard before Hon. Saffoid Berney. Action by Alexander Mackay against tbe Mobile Light & Railroad Company. After an adverse judgment, plaintiff’s motion for new trial was granted, and defendant appeals.

Heard before Hon. B. M. Miller. Proceedings by information in the name of the State against W. W. Quarles, an attorney, for disbarment. From a judgment for defendant, plaintiff appeals. The question to Molette, tell us what Quarles said, was not subject to the. objection interposed. — In re Serfast, 116 Pa. St. 468. It was admissible as part of the res geatas. — 24 A. & E. Ency of Law, 61. It is not hearsay. — I/und v. Tynesborough, 9 Cush. 36; 1 Greenl. 108.

<p> Mandamus. </p> <p>1. Statutes; Titles; Subjects Embraced. — Section 120, Municipal Code Act (Gen. Acts 1907, p. 790) is void and inoperative, because not expressed in the title of the act. The act relates to the organization, control and government of municipalities, while the provisions of section 120 thereof relate solely to the duties aud powers of Boards of Revenue and Commissioners courts, rendering said section violative of section 45, Constitution of 1901.</p> <p>2. Statutes; Effect of Incorporation in Code; Passage after Adoption of Code. — Although a statute is incorporated after its passage into the Code before the same is printed, if its adoption as a statute following after the act adopting the code, the fact of its adoption into the code does not impart validity to it, if otherwise invalid.</p>

<p>Appeal from Monroe Circuit Court.</p> <p>Heard before Hon. John T. Lackland.</p> <p>Contest of claim of exemptions between Jesse Richardson and others and McCreary & Co. From a judgment overruling the claim of exemptions, said Richardson appeals.</p> <p>McCreary & Co., sued Jesse Richardson and other in the following action: (1) Money had and received. (2) Same. (3) “Plaintiff claims of defendant $515, for, to wit, 515 trees cut or caused to he cut by defendants on the following lands, during the years 1902 and 1903: (Here follows description of the land.) And plaintiff avers that said trees have been sold by defendant, and that defendants had no right to cut or cause to be cut said trees, and defendants had no right to sell said, trees; that said trees et aequo et bono belonged to plaintiff, and plaintiff sues to recover the value.” The fourth count sets up that McCreary & Co., purchased the land particularly described in count 3 at a mortgage sale, and that the land was sold to McCreary under a mortgage given by Allen Richardson and wife to one De Loach; that De Loach is dead, and Wiggins, his administrator, foreclosed the mortgage; that after execution of said mortgage, but before its foreclosure, Allen Richardson and wife died, and that Jesse Richardson and others are the heirs of Allen Richardson; that Jesse Richardson and the others redeemed said land from Mc-Creary & Co., on or about the 4th of August, 1902, but that before the redemption, and after the purchase by McCreary & Co., of the lands, on January 7, 1902, the redemptioners cut or caused to be cut the trees for which suit is brought. The trial court held the action under the third and fourth counts ex delicto, and disallowed the claim of exemptions.</p> <p>The case was tried on the 1st and 2nd counts alone, the common counts, and ,ex contractu. The measure of recovery sought may be looked to as determining the form of action. — Rodgers v. Brooks, 99 Ala. 31, but is never looked to unless it is uncertain what the form of action is from the facts averred. The action was ex contractu when referred .to the complaint. — McDaoiiel v. Johnson, 110 Ala. 526; Shook v. Blount, 67 Ala. 301; Shepherd v. Furniss, 99 Ala. 760; 18 Cyc. 1389.</p> <p>Counsel insist that the action is in tort and that no claim of exemptions could he allowed. They cite. — Northern v. Ramner, 121 Ala. 587; 12 A. & E. Ency of Law, 183; 133 Ala. 393; 64 Ala. 299; 146 Ala. 610; 146 Ala. 463; 64 Ala. 1; 87 Ala. 645; 122 Ala. 666; 133 Ala. 393.</p>

. Heard before Hon. Thomas W. Coleman. Jr, Application for mandamus on behalf of the city of Anniston against the Court of County Commissioners of Calhoun County to require them to draw their warrant upon the county treasurer of Calhoun county for that part of the special road and bridge tax due the city of Anniston under section 120, Acts 1907, page 760. From an order denying the petition, petitioner appeals.

Heard before Hon. Samuel B. Brown. Howison recovered a judgment against Elliott and Elliott entered a motion on the motion docket to retax tbe costs as to certain witnesses. From a judgment denying the motion, Elliott appeals. All mileage over a hundred miles from the place of trial computed by the route usually traveled of witnesses in attending court, was improperly taxed against appellant.— Section 4021, Code 1907. No affidavit was made as required by said section.

<p> Proceedings by Scire Facias Against Bail on Appear-a/ace Bond. </p> <p>1. Bail; Discharge. — Where a defendant is taken into custody by the proper officer, he is no longer .in the custody of his bail, who are thereby discharged.</p> <p>2. Same; Judgment of Convictions; Vacation. — Where the judgment of conviction is set aside and a new trial ordered after the defendant had been taken in custody by the proper officer, an order made by the court at the time discharging the defendant on his former bail, of which order the bail knew nothing, and did not assist to procure, was not binding on the bail so as to hold them liable for a failure of the defendant to appear at a subsequent trial.</p>

<p>Appeal from Clarke Probate Court.</p> <p>Heard before Hon. Clayton Fosoue.</p> <p>Petition by Eunice H. Hunt, administratrix of the estate of James L. England, deceased, for the sale of his real estate to pay debts of his estate. From a decree ordering a sale of the land, A. B. Curtis and the other heirs appeal.</p> <p>The petition did not give jurisdiction as it failed to state that Fannie Evans was a married woman. — Poole v. Daughdrill, 129 Ala. 212; Sec. 158, Code 1896. The evidence was not sufficient to authorize the sale.— Quarles v. Campbell, 72 Ala. 64. A personal representative is an interested Avitness. — Goodwyn v. Harrison, 6 Ala. 438; Davis v. Tarver, 65 Ala. 98. The court erred in excluding the evidence of the witness Bettis as to rents received. — K orne gay v. Mayer, 135 Ala. 141; Warren v. Hearn, 82 Ala. 554. The court should have admitted evidence as to the mental condition of England.— Ragland v. The State, 125 Ala. 27. The testimony of the witness Baugh as to any trades of England, was competent. — In re Carmichael, 36 Ala. 514. The appeal was properly taken, as the insolvency of the estate is not in question. — Thornton v. Moore, 61 Ala. 217; McBroom v. McBroom, 19 Ala. 173.</p> <p>The appeal should he dismissed because not taken within thirty days from the allowance of the claim. — Sec. 158, Code 1896; 135 Ala. 598; 105 Ala. 331. It was not necessary to allege whether the woman Avas a manned woman or not. — ■ Sec. 159, Code 1896. Counsel discuss other assignments of error with citation of authority, hut it is not deemed necessary to here set them out.</p>

Heard before Hon. William Jackson. Action in tbe nature of quo Warranto by the state on the relation of T. A. Moore, against R. W. Waldrop and others, seeking to inquire by what authority they held and exercised functions of the office of members of the Board of Education of the city of Bessemer. From a decree for respondents, relators appeal.

Heard before Hon. Saefold Berney. Ejectment by the Irvington Land Company, a corporation, against R, M. Dodge. Judgment for plaintiff and defendant appeals. The land sued for was the N. W. % and the W. % of the N. E. % of section 27, tOAvnship 6, range 3. The defendant admitted plaintiff’s right under the evidence to recover the W. V2 of the N. E. %, and as to the other land he interposed the plea of not guilty.

<p> Ejectment. </p> <p>Ejectment; Evidence. — The evidence in this case stated and examined and held insufficient to sustain the defendant’s claim that the deed made to her grantor contained a clause providing for a reversion to her grantor upon the death of another grantee of her grantor, which deed was claimed to have been lost or destroyed.</p>

Heard before Hon. Samuel B. Brown. The Mobile Improvement & Building Company sued Louis Stein in six actions of forcible entry and detainer. From a judgment for defendant in each, action, this single appeal is prosecuted. . Counsel discuss questions raised by the assignments of error with citation of authority, but do not discuss the question decided.

Heard before Hon. H. A. Pearce. Action by H. M. Austion & Co., against the Town of Cottonwood and others. From, a judgment for plaintiffs, defendants appeal. The town could in no wise be held liable for the price of the whisky sold.— Bluthenthal é Bichert v. Town of Headland, 132 Ala. 249. The sale by the appellee to the town was an executed contract, the legal effect of which was to vest title in the town to the property.- — Bloch. . et al. v. Oliver, 1 Ala. 449.

Heard before Hon. S. L. Brewer. Detinue by W. O. Gunn against F. M. Pruett, to recover a borse. From a judgment for plaintiff, defendant appeals. Great latitude should have been allowed on cross exomination to establish the fraud in the effort to defeat the execution. — Patterson v. The State, 47 South. 52. It was competent to show that J. W. Gunn was insolvent. — Baher v. Cotney, 43 South. 786.

Heard before Hon. O. J. Semmes. Action by tbe City of Mobile against tbe Factors’ & Traders’ Insurance Company to recover city taxes. From a judgment for defendant, plaintiff appeals.

Heard before Hon. O. P. Almon Action by Robert H. Walker and others against the Fidelity & Deposit Company of Maryland for the breach of an injunction bond. From a judgment for plaintiffs, defendant appeals. Tt is unnecessary to set out the first and second counis.

Heard before Hon. D. W. Speaks. Assumpsit by the 1st National Bank of Ensley against tbe Alabama Grocery Company, on a bill of exchange. From a judgment for plaintiff defendant appeals. A corporation has no authority to endorse commercial paper for the accommodation of another unless such authority is conferred by the charter. — Chambers v. Faulkner, 65 Ala. 448; Steiner v. Steiner L. Co., 120 Ala. 128; S. B. & L. Asso. v. Cassa Grand Theatre Co., 128 Ala. 624.

Heard before Hon. C. C. Nesmith. Action by the Pabst Brewing Company against Erdreich Bros. & Marx for breach of contract and assumpsit. From a judgment for defendants, plaintiff appeals. The complaint sets up a contract between the parties, and alleges a breach thereof and damages in the sum of $2,000. There is also a count for an account due in the same amount.

Heard before Hon. D. W. Speai-ce. Action by George W. Dickerson against John G. Finley for breach of contract. From a judgment for defendant, plaintiff appeals. Count 3; “Plaintiff claims of defendant the sum of $10,000 as damages, for this: That, whereas, on, to-wit, the 27th of May, 1906, defendant, under and by the name of J. G. Finley, entered into a contract with plaintiff in words and figures as follows: ‘State of Alabama, County of Limestone.

Heard before Hon. John Peli-tam. Assumpsit by W. L. Watson against the Alabama Construction Company. Prom a judgment for plaintiff, defendant appeals. The first complaint contained three counts: (1) For work and labor done by plaintiff for defendant at its request. (2) Account due between plaintiff and defendant. (3) Work and labor done by plaintiff for the defendant at its request in railroad grading at or near I-Ialeyville.

Heard before Hon. John H. Disque. Action by T. S. Washburn, as administrator, against the Union Central Life Insurance Company. Judgment for plaintiff. Defendant appeals. The demand of a fully earned premium even after forfeiture is not inconsistent with the idea of forfeiture. — Monclegs v. O. M. L. Assur. Bog., 64 la. 134; Lcmghlin v. F. M. L. Assn., 8 Tex. App. 448; U. C. L. Go. v. Ghownmg, 8 Tex. App. 455.

Heard before Hon. Samuel B. Browne. Action by tbe Ollinger & Bruce Dry Dock Company against Peyton R. Tunstall. From a judgment for defendant, plaintiff appeals. Under tbe contract, a sale took place. — Fiollenwider v. Rowan, 136 Ala. 303.

Heard before Hon. D. W. Speake. Suit' on verified account by S. É. Stewart against Abraham Polytin'-kv. From judgment for plaintiff, defendant appeals. This was an action for work and labor done by a partnership composed of Ober & Holmes, for ginning cotton, with an allegation that, the account had been transferred and assigned to plaintiff. The fact of its verification was indorsed on the complaint. The facts are sufficiently stated in the opinion of the court.

.Appeal from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Action by Frank S. White & Sons against W. R. Mc-Vay. Judgment for plaintiff, and defendant appeals. The facts are sufficiently stated in the opinion of the court. The charges therein referred to are as follows: “(2) If the jury believe from the evidence that Mrs. McVay was responsible for the attorney’s fee for defending her, defendant would not be liable for said fee.

Heard before Hon. O. J. Semmes. Action for breach of contract by Frank B. Merriss against the partnership of Charles D. Smith and others. From a judgment for defendants, plaintiff appeals.

Heard before Hon. Saeeold Berney. Action by the Turner Supply Company against the Sunflower Lumber Company, a partnership. From a judgment for plaintiff, defendant appeals. The action was on a promisory note made on the 23d day of November, 1907, and payable 60 days after date.

<p>Appeal from Lowncles Circuit Court.</p> <p>Heard before Hoon. J. C. Richardson.</p> <p>Action by J. M. Light against Prank Henderson.</p> <p>Judgment for defendant, and plaintiff appeals.</p> <p>The following pleas were filed to the complaint: “(2) That, to wit, during the month of November, 1907, defendant turned over and delivered to plaintiff 1,006 pounds of lint cotton, of the value of $125, and two hoes, of the value of $1.50, and four plows, of the value of $15, and 2,000 pounds of cotton seed, of the value of $20, and 50 bushels of corn, of the value of $40, and that, to wit, during the months of November and December, 1907, the plaintiff negligently permitted a horse and four head of cattle to run at large on defendant’s crop of corn and cotton, whereby said crop of corn and cotton was by said battle trampled upon, knocked out of the open bolls, and devoured, to the defendant’s damage in a large sum, to wit, the sum of $50, all of which defendant offers to set off against plaintiff’s claim and asks judgment for. overplus. (B) That before the bringing of this suit, and during the fall of 1907, the defendant turned over and delivered at the request of the plaintiff the items with the value as set out in plea 2 (all of which is set out in plea 2), and that plaintiff permitted knowingly four head of cattle to trample, waste, and devour 2,000 pounds of cotton unpicked, belonging to the defendant, of the value of $50, to the damage of defendant in that amount, all of which defendant offers to set off against plaintiff’s claim and asks judgment for the excess. (1) That the consideration for which said note, the foundation of this suit, was given, has failed.” “(7) That he rented to defendant a farm and dwelling house of plaintiff, known as ‘Swanson Lighthouse,’ for the year 1907, at and for the sum of $125, and agreed to put defendant in immediate possession, for which rental and agreement on the part of the plaintiff, the defendant executed the note sued on; and defendant avers that plaintiff failed and refused to put defendant in possession of said dwelling house, to defendant’s great damage, in this: That defendant Avas deprived of the use thereof during the whole of said rental term, to his great damage in the sum of $25, which defendant offers to recoup against plaintiff’s demand. And defendant further avers that he delivered to plaintiff at his request (here folloAvs a list of the items, with their value, as set out in plea 2), all of which defendant offers to set off against plaintiff’s demand and claims judgment for the overfloAV.”</p> <p>Demurrers were interposed to plea 2 as follows: “It does not appear from the allegations of said plea that the property alleged therein to have been turned over to plaintiff Avas to be applied to the payment of the note the foundation of this suit. (2) For aught that appears in said plea the property alleged to have been turned .over to the plaintiff was in satisfaction of other claims than the one sued on. (3) said plea seeks to have set' off against the demand sued 'on damages which are shown to be unliquidated. (4) It does not appear from the allegations of said plea that plaintiff is indebted to the defendant for the property alleged therein to have ■ been turned over to plaintiff by the defendant.” These grounds of demurrers were also interposed to plea. 3. Demurrer was interposed to plea 4 because it does not appear from the allegation of said plea wherein the consideration of said note failed. The same grounds of demurrer were interposed to plea 7 as those assigned to plea 2, with the additional ground that said plea neither admits nor denies the allegation of the complaint, all of which demurrers were overruled.</p> <p>The pleas were clearly subject to the demurrers interposed. — Sledge v. Swift, 53 Ala.; 7 Port. 110; Long v. Waters, 47 Ala. 624; St. L. & T. Go. v. McPeters, 124 Ala. 451; Burns v. Beeves, 127 Ala. 127; Gooper v. Armstrong, 69 Ala. 343; Grisham v. Bodman, 111 Ala. 194; 25 A. & E. Ency of Law, 1085; 19 Ency P. & P. 760. The demurrers should have been sustained to the plea of failure of consideration. — Potoell v. Grawford, 110 Ala. 295; McAbee v. Goal Go., 97 Ala. 709; Darby v. Berney Bat. Bank, 97 Ala. 643; Meyer v. Bloch, 139 Ala. 174; see also 88 Ala. 355; 127 Ala. 266; 5 Mayf. 756.</p> <p>No brief came to the Reporter.</p>

Heard before Hon. W. W. Wi-iiteside. Bill by J. Murry against J. W. Strother. Prom a decree for respondent, complainant appeals. Ida Murry, wife of complainant, executed a mortgage to Julia Murry on her interest to certain described lands, in which orator joined. This mortgage was executed on the 26th day of October, 1896. On the 13th day of January, 1898, Ida Murry conveyed to complainant, J. Murry, her interest in said land, subject to the mortgage above set out.

Heal'd before Hon. A. D. Sake. Bill by the state on the relation of the Attorney General against the L. & N. R. R. Co., et al., to require the opening of Lee street in the city of Montgomery which had been closed by the construction of the freight depot of the L. & N. R. R. Co., across it, under an ordinance of the city of Montgomery. From a judgment for respondent relator appeals.

Heard before Hon. A. D. Sayre. Action by Mose W. Stewart, trustee in bankruptcy, against the Exchange National Bank of Montgomery and the Union Bank & Trust Company. Prom a judgment overruling demurrers to the bill, defendants appeal.

Heard before Hon. Lucian D. Gardner. Bill by J. D. Adams against D. G. Adkinson for the settlement of a partnership. Decree for respondent and complainant appeals. The allegations of the bill are admitted and no proof is required. — Prestridge v. Wallace, 46 S'outh. 970; Berry L. Co. v. Garner, 142 Ala. 488; Grady v. Robinson, 28 Ala. 289; Moog, et al. v. Barrow, 101 Ala. 209. The court erred in refusing to grant relief. — Ala.

<p>Appeal from Mobile Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Foreclosure proceedings by Taylor, Lowenstein & Co., against Lula M. Davis and others. Decree for complain-</p> <p>ants, and respondents appeal.</p> <p>Bailey procured a lease for turpentine purposes on ■certain lands from A. W. Slaughter, another from J. H. Hunt, and. the third from Lula M. Davis and her husband. He mortgaged this leasehold interest, along with other -things, to appellee to secure an indebtedness. The terms of the Davis lease are sufficiently set forth in the opinion of the court. The Davis lease was brought by Mrs. Davis’ husband to the appellees, and the statement was made by him, at the time that the lease was made, that it was for the purpose of enabling Bailey to obtain advances from appellees, and the lease was left with appellees as a paid of the security to them for making the advances, and on this lease and the other leases, which had also been left, together with certain mules, etc., a mortgage was taken for advances approximating $2,000 on which payments had been made amounting to $800. In December, 190G, Bailey was considerably behind in making his payments, and Davis urged appellees to press Bailey for payment under threat of foreclosure. Negotiations ensued whereby Davis was to take over the indebtedness of Bailey to appellees and the securities held by appellees, and either to pay Bailey’s debt in cash or to carry out Bailey’s contract with appellees. Both having-failed to do anything, appellees sent men to cut the boxes; but these men were warned away by Mrs. Davis and no work was done. The contemplated "arrangements between Davis and appellees for the carrying- out of Bailey’s contract was carried on through February, and then abandoned, whereupon appellees filed a bill to foreclose the mortgage, and made Mrs. Davis a party thereto to settle the question as to whether or not the Davis lease was a subsisting, valid lease and a security under the-mortgage. Neither Hunt nor Slaughter were made parties.</p> <p>The lease by its terms makes time the essence of the contract, and the rights of the parties are to be determined by the contract, as made by them. — M. B. & L. Assn. v. Robinson, 65 Ala. 886; Allen v. Mutual (\ Co., 101 Ala. 576; Calderon v. Atlas 8. 8. Co., 170 U. S. 280; Ü. 8. v. Wiltbutger, 18 U. S. 5 Wheat, 76; II. 8. v. Harttoell, 78 U. S.-6 Wall. 385; Crimp v. McCormick O'. Co., 72 Fed. 366; BrushE. L. é P. Go. v. Montgomery, 114 Ala. 442; 1 G-reenleaf on Evidence, Sec. 277; West Havey Water Co. v. Redfield, 58 Conn. 39; Beach on Contracts, Sections 703 and 714. The lands being designated by the government subdivision, these designations áre the ones that- prevail as to the lands included in the lease. — Tiedman on Beal Property, sec. 832; 24 A. & E. Ency. of Law, 1006; Sec. 64 Code 1886; Taylor v. Fomby, 116 Ala. 628. Mrs. Davis never claimed that land upon which the actual boxing was done. The answer discloses that Caroline Bailey is interested in the property sought to be foreclosed in the mortgage by way of homestead right, and without her before the court under the pleadings and the evidence, the court was not authorized to render any final decree whatever.- — Marbury L. Co. v. Posey, 142 Ala. 394; Langley v. Andrews a 132 Ala. 147; Wynñ v. Fitzioater, 44 S'outh. 97. '</p> <p>Mrs. Davis was estopped from claiming that the lease was forfeited.:— Wingo v. Harden, 94 Alá. 184; Travellers Ins. Co. v. Brown, 138 Ala. 529; Tobias v. Morris & Co., 125 Ala. 515. Counsel discuss other assignments of error," but without citation of authority.</p>

Heard before Hon. W. H. Simpson. Bill by C. M. Weeks against B. C. Bynum and others. From a decree dissolving a temporary injunction, complainant appeals.

Heard before Hon. A. D. Sayre. Bill by Mary L. Hoekinsmitli and others against William H. Small, individually and as administrattor of Sarah M. Cooner, deceased, and others. From a decree overruling demurrers to the bill and adjudging pleas thereto insufficient, defendants appeal. The trust sought to be established is a constructive trust. — 3 Pom. Eq. sec. 1049; Nettles v. Nettles, 67 Ala. 599.

<p> Bill to Cancel and Remove Deed as Cloud On Title. </p> <p>1: Witnesses; Competency; Transaction With Deceased Person — Under section 4007, Code 1907, a grantor suing the heirs of a deceased grantee to cancel a deed and expunge it from the record, on the ground that he never executed or acknowledged the deed, may testify that he did not sign or acknowledge the same, unless it is conclusively shown or conceded that he was a party to the deed or transaction.; a transaction between two persons implying action, consent, or aequiesonco on the part of both..</p> <p>2. Same. — Section 4007, Code 1907, does not render witnesses incompetent to testify generally, but only incompetent to testify on the subjects specified; so a party to a suit is not precluded from denying that he ever had a given transaction with the decedent, whose estate is interested in the result of the suit, and which transaction is imputed to him by the adverse party; but where such transaction is shown or conceded, a witness may not give his version of it, or dispute or contradict the evidence of other witnesses to prove what the transaction was, or the effect and extent thereof, unless called thereto by the adverse party.</p> <p>3. Deeds; Execution; Presumption. — The filing for record of a deed and recording it makes the record or a certified copy thereof presumptive evidence of its execution, and prima facie proof, as between the parties thereto, of the recitals therein; but it is open to either party to show that the deed is void for any sufficient reason.</p> <p>4. Appeal and Error; Harmless Error; Exclusion of Evidence.— Although the chancellor recites in his opinion that the decree would have been the same with the excluded evidence admitted, yet, where it affirmatively appears that the chancellor excluded evidence which was clearly competent for the party against whom the decree was rendered, this court cannot say on appeal that the error was without injury. (Simpson and McClellan, J.T., dissent.)</p>

<p> Bill to Prevent Commissioner’s Court from Decreasing Toll Rate Over Bridge, and to Declare the Aon Authorizing it, Unconstitutional and Void. </p> <p>-1. Bridges; Corporation; Toil; Statute. — The act of Feb. 11, 1893, (Local Acts 1892-3, p. 491) either in section 1 or 2 thereof, does not authorize the corporation constructing the bridges, by implication to prescribe toll, though the act is silent as to the fixing of the toll, and there is np express reservation of power to the Legislature.</p> <p>2. Same; Regulation of Tolls; Statute; Construction!!.- — The Act of August 6, 1907, (Local Acts 1907, p. 758) is to be construed as though the limitation upon the court of county commissioners of prescribing reasonable tolls was written in it; the act does not confer on the court the power to deprive the owner of the right to receive a reasonable toll.</p> <p>3. Constitutional Law; Delegation of Legislative Poicer; Regulation. — The Act of Aug. C, 1907 (Local Acts 1907, p. 75S) is not unconstitutional as delegating to the court of county commissioners legislative powers.</p>

Heard before Hon. William Jackson. Bill by Jno. A. Hall against the Atlanta., Birmingham and Atlantic Ry. C'o. and another to enjoin the obstruction of streets and alleyways, until compensation paid. Prom a decree dissolving a temporary injunction complainant appeals. Estes, Jones & Welch, for appellant.

■ Appeal from Limestone Chancery Court. Heard before Hon. W. H. Simpkon. Bill by Charles Byrd against John A (dark and others to enjoin an ejectment suit and to enforce a contract.

<p>Appeal from Randolph Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p> <p>Action by J. M. Boggs and another against K. D. Holloway for cancellation of a deed. From a decree for defendants, plaintiffs' appeal.</p> <p>The court erred in sustaining demurrers to the,bill.— Shipman v. Furnis-s, 69 Ala. 555; Pom.- Eq. Jur. ssec. 731; Donalson v.- Po-sey, 13 752; Holland v. Barnes, 53 Ala. 83. . - --</p> <p>. The court- properly sustained the demurrers to the bill. — Galloway, v. Hendon, 131 Ala. 280; Treadwell v. Torhett, 133 Ala.-504.' The court properly refused an injunction. — Womack v. Powers, 50 Ala. 5; Holt v. Pickett, 111 Ala. 363; Wilson v. Miller, 143 Ala. 271; 1 Ency of Law, 809; 22 Oyc. 788; 10 Ency P. & P. 947. The proof did not warrant cancellation. — Johnson v. Rogers, 112 Ala. 576; Wright v. Waller, 127 Ala. 555 ;■ 6 -Oyc. 336. ■ The bill should have been dismissed for a misjoinder,of parties complainant. —Sec. 3129, Code 1907.</p>

Heard before Hon. William Jackson. Bill by J. T. Crofford and others against the Atlanta, Birmingham & Atlantic Railroad Company and another. From a decree dismissing the bill, complainants appeal. Easement of light, air, view, ingress and egress, are property. — Jackson v. Bir. F. & M. Oo., 45 South. 660; 1st Nat. Bank v. Tyson, 133 Ala. 475; Elliott on Roads & Streets, 961; 4 L. R. A. 193; 14 L. R. A. 370; lb. 381.

Heard before Hon. A. H. Benners. Bill by Frank Deedmeyer and others against Susie E. Leahart, administratrix of Martha A. Worley, and others. Decree for complainants, and respondents appeal. The appellees have no lien on the judgment or decre and the bill is without equity. — Hourly & Bley r. Norman, 74 Ala. 424; 24 A. & E. Ency. of Law, 877. Sec. 3011, Code 1907. The statutes now give attorneys a lien on judgments and suits. — Sec. 3011, Code 1907.

Heard before Hon.- A. H. Benners. Bill by the Alabama Central Railroad Company against Z. M. Long, as administrtrix of John B. Long, deceased. From a decree sustaining a demurrer to the bill, complainant appeals. The allegation that appellant’s railroad was built and constructed over the lands described in the ejectment suit with the knowledge and consent of the appellee’s intestate gives equity to the bill. — Southern Ry. Go. v. Hood, 126 Ala. 812.

<p> Bill by Judgment Creditor to Redeem from Mortgage Foreclosure Sale. </p> <p>Homestead; Foreclosure Sale; Who May Redeem, From. — The homestead being exempt from levy and sale, a judgment creditor of the mortgagor may not redeem the homestead of the debtor from a purchaser at the mortgage foreclosure sale.</p>

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. Alfred H. Benners.</p> <p>Bill by B. F. Singleton against George Tribble, to have a deed absolute on its face declared to be a mortgage. From a judgment for complainant, defendant appeals.</p> <p>Where a bill- in equity is framed on the theory that there was fraud practiced, which would entitle the complainant to relief, it must be proved to entitle the complaint to recover, and proof of other facts, though included in the charge of fraud, and sufficient under other circumstances to constitute a claim for relief under other heads of equity, will not justify the relief prayed for. — 16 Cyc. 436; Elyton Land Co. v. Iron City Steam Bot. Wks., 20 South. 50; Robinson v. Cullom & Co., 41 Ala. 693; Reynolds v. Excelsior Coal Co., 14 South. 573; Winter v. Merrick, 69 Ala. 36; Daniells Chan. P. & P., vol. I, pp. 328-326, note 2. A deed must stand as the sole evidence of the agreement of the parties unless the complainant shows under the most stringent rules of evidence that it was intended to operate as a mortgage. — Reeves v. Abercrombie, 19 So. 41; Peeples v. Stolla, 57 Ala. 53; West v. Hendrix, 23 Ala. 226; Parks v. Parks, 66 Ala. 326; Douglas v. Moody, 80 Ala. 61. Where the parties originally intended that the transaction should operate as a conditional sale, equity will not declare it a mortgage. — Parish v. Gates, 29 Ala. 254; Swift v. Swift, 36 Ala. 147. Where there is no debt there is no mortgage. —Haney v. Robinson, 58 Ala. 37. If the grantor is under no obligation to redeem the property conveyed by absolute deed, and if no action of debt could be enforced against him, but he is simply given the option of repurchasing upon the performance of certain conditions, then the transaction is a conditional sale and not a mortgage. — Logwood v. Hussy, 60 Ala. 417; Haynie v. Robertson, 58 Ala. 37.</p> <p>Fraud entered into the deed sufficient to entitle complainant to relief. — Western Ry. v. Arnett, 137 Ala. 414. The two contracts were delivered together and must be so construed. — Smith v. Smith, 45 South. 168. The transaction was not a conditional sale. — Martin v. Martin, 123 Ala. 191; Haynie v. Robinson, 58 Ala. 37; Jones on Mortgages, 256. Where a debt still exists with a duty to pay, the transaction is a mortgage. — Johnson v. Hattaway, 46 South. 760; Thomas v. Livingston, 147 Ala. 200; Wynn v. Fitzwater, 44 South. 97; Harper v. Hays & Co., 149 Ala. 174; Rose v. Gandy, 137 Ala. 329. Although appellee conveyed the property by deed absolute and appellant leased the premises back to appellee, the transaction would still be regarded as a mortgage.— Hammett v. White, 128 Ala. 280; 27 yc. 998.</p>

Heard before Hon. W. H. Simpson. Bill for injunction by H. D. Bynum and others against J. C. Kumpe and others. The application having been set down for hearing, pursuant to Code 1907, § 4528, and- the chancellor having made his fiat for the issuance of the writ, defendants appeal. From the order of the court granting the warrant, the present appellee could have had certiorari to review the court’s action. — Stanfield v. Com. Ct., 80 Ala. 290; Com.

Heard before Hon. Alfred H. Benners.. Bill by Edward H. Vanlngen against P. J. Duffin, and others to set aside certain conveyances as a fraud on creditors. From a decree for respondents complainants appeal. Laches begins to run in cases of fraud not from the time of the perpetration of the fraud, but from the time of the discovery of the fraud. — McIntyre '0. Prior, 173 U. S'. 53; 143 IT.

<p> Mandatory Injunction for Performance of Contract. </p> <p>1. Specific Performance; Character of Contract. — Equity will not enforce the specific performance of a contract, having such terms and provisions that the court could not carry into effect its decree without some personal supervision and oversight over the work to be done, extending over a considerable period of time.</p> <p>2. Equity; Jurisdiction; Eoto Determined. — Whether or not equity had jurisdiction to entertain a bill will be determined from the facts stated therein and not from the prayer for relief.</p> <p>8. Injunction; Grounds of Relief; Futility. — An injunction will not be granted to restrain the violation of a contract, when the violation was complete at the time the suit was brought, since the injunction would be futile.</p> <p>4. Injunction; Mandatory Injunction; Discretion. — A mandatory injunction will not lie to enforce a contract where its enforcement would necessitate the exercise of skill and discretion, it not being feasible for the court to supervise the work.</p> <p>5. Specific Performance; Relief; Compensation in Lieu of Specific Performance. — Where the contract is of such a character that equity cannot or will not specifically enforce it, it will not award damages for its breach; the complainant’s legal remedy being adequate and no special equities existing which require such incidental relief.</p>

Heard before Hon. W. L. Parks. Bill by the Raisin Fertilizer Company and others against R. Harper and another. From the decree, defendants appeal. Reversed and rendered. A creditor whose claim is barred by the statute of limitations cannot maintain a bill to set aside a fraudulent conveyance. — 2 Pom. Eq. Rem. sec. 889; 57 S. W. 339; 49 Am. Dec. 738. R. F. Harper, the donee, can set up any defense that the debtor could in his life.- — -51 Ala. 544; 66 Ala. 561.

Heard before Hon. A. D. Sayre. Bill by Breckinridge Lucas against L. M. Boyd, to reform a contract on tbe ground of mistake. From a decree for respondent complainant appeals. Where there is mutual mistake in the execution of a deed and mortgage, equity has power to reform the same.-— 24 A. & E. Ency of Law, pp. 648-654.

Heard before Hon. Thomas I-T. Smith. Bill by J. I. Clemmons against Mildred Puller and others. A motion to dismiss for want of equity was overruled, and respondents appeal.

Heard before Hon. W. H. Simpson. Bill by Harris, Cortner & Co., against the Gulf Com- ' press Company. From a decree overruling a motion to dismiss the bill for want of equity, a demurrer to-«the bill, and a motion to dissolve a preliminary injunction, defendant appeals. The effect of the injunction as applied for and as issued in this case depends upon the power of the court of equity to prescribe rates to be charged in the future by the defendant company.

Heard before Hon. S. L. Brewer. Personal injury action by George W. Moore against the Tallassee Falls Manufacturing Company. Judgment for plaintiff, and defendant.appeals.

Heard before Hon. T. W. Coleman, Je. Action by Sam Cunningham against the Western Steel Car & Foundry Company for damages, under subdivision 2, Employers’ Liability Act (Code 1906, § 1749). From a judgment for plaintiff, the defendant appeals. The facts are sufficiently set out in the opinion. The case was tried upon two counts, which are as follows: Count 2.

Heard before Hon. H. A. Sharpe. Action by Jack W. Williams against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. The facts are sufficiently stated in the opinion of the court.

Heard before Hon. A. O. Lane. Action by Edmund ’M. Lowe against the Louisville & Nashville Bailroad Company. From a judgment for plaintiff, defendant appeals. The' facts are sufficiently stated in the opinion of the court.

Heard before Hon. A. A. Coleman. Action by Carter Williams, administrator, against the Alabama Great Southern Railway Company for damages for the death of his intestate, an employe of defendant. From a judgment for defendant, plaintiff appeals. There being no limitations in Code by the Employer’s Lia. Act, the general statute applies, and under the general statute of limitations, the statute does not begin to run until the cause of action has accrued.— Sec. 2788, Code 1886.

Heard before Hon. W. W. Haralson. Action by Saliie Melton against the Southern Railway Company for damages for being set down at a station other than her destination. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. O. Lane. Action for damages by Andrew J. McGinty against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. A. H. Alston. Action by Clarence E. Daniel against tbe North Alabama Traction Company. From a judgment for plaintiff, defendant appeals, Tbe complaint was in tbe following language: “Plaintiff claims of defendant tbe sum of $5,000 as damages, for that the defendant, a street railway company operating-electric cars in Decatur and New Decatur, Ala., is engaged in carrying passengers for hire.

Appear from Birmingliam City Court. Heard before Hon. C. C. Nesmiti-i. Action by Benjamin F. Chastain against lie Birmingham Railway, Light ■& Power Company for damages for loss of society and service of k minor son. From a judgment for plaintiff, defendant appeals.

Heard before Hon. A. O. La he. Personal injury action by Mary J. Babitte against the Alabama Great Southern Railroad Company. A demurrer to replications was sustained, and plaintiff appeals. The court erred in sustaining demurrers to plaintiff’s replication. It was not necessary under the facts alleged therein that the. money should be refunded or tendered. — Western Ry. v. Arnett, 137 Ala. 414; 83 a W. 332; 89 S. W. 709; Am. Dig. 1905 A, p. 3689.

Heard before Hon. A. O. Lane. Action by L. T. Lavender against the Birmingham Railway, Light & PoAver Company. From a judgment for plaintiff, defendant appealed.

Heard before Hon. J. W. M*vbry. Action by J. G-.' Campbell against the Selma Street & Suburban Railway Company for damages for personal injury. From a judgment for plaintiff, defendant ap- peals.

Heard before Hon. H. A. Sx-iarpe. Action by Dealy Wooley against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. The following charges were refused to the defendant: “(4) Under the evidence, you cannot assert any punitive damages against the defendant.

Heard before Hon. A. I). Sayre. Action by Adolphus Cannon, pro ami, against the Louisville & Nashville Railroad. Company. From a judgment for plaintiff, defendant appeals. The court erred in refusing to strike portions of the complaint as pointed out in the motion. The damages claimed were too remote and uncertain. — IF. U. T. Go. v. Wilson, 93 Ala. 32; 20 Am. St. Rep. 589. It is clear that neither count of the complaint states a cause of action. — 63 Am.

Heard before Hon. A. D. Sayre. Action by Matilda A. Knabe against; the Montgomery Traction Company for damages for perspnal injury. There was judgment for plaintiff in the sum of $12,500 which, on motion for new trial, was reduced to $10,000. After the refusal of the new trial defendant appealed.

Heard before Hon. Willtam Jackson. Action by Francis E. Hinton, administratrix, against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. The action is for damages for the death of the plaintiff’s intestate, who was burned, in the destruction of a house by fire, to an extent that it was claimed to have resulted in her death, and that the fire was set out by sparks from the defendant’s locomotive engine.

Heard before Hon. W. W. Haralson. Action by William A. Forrister, administrator, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. A. O. Lane. Action by Ed Fennell against the American Bolt Company. From a judgment for plaintiff, defendant appealed.

Heard before Hon. Saffold Berney. Action by Alfred C. Balter against the Mobile Light & Railroad Company. From a judgment for plaintiff, defendant appeals. The first count is in simple negligence for damages to the property and person of plaintiff while crossing the track of defendant at the intersection of a highway with said track, or in a highway over which said track was operated, and the negligence is alleged to be in the way and manner in which the car was managed.

Heard before Hon. O'. W. Ferguson. Action by K. B. Koosa & Co., against Henry Warten for damages. From a judgment for plaintiffs, defendant appeals. The bill of exceptions contains the following: “During the progress of the trial defendant’s counsel remarked, in the presence and hearing of the jury, that he would have to pay any judgment assessed by the jury.

I-Ieard before Hon. W. W. Haralson. Action by Samuel Gullatt, as administrator, against the Southern Railway Company. From a judgment for plaintiff, defendant appealed. The following charges were refused to the defendant: (1) and (2) Affirmative charges as to the second count. “(3) No inference can be drawn prejudicial to the defense in this case by reason of the fact that the engineer was not introduced and examined as a witness in the cause by the defendant.

Heard before Hou. W. W. Pearson. Action by Nathan Melton against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appealed. The demurrer to the complaint should have been sustained. — Pullman Oar Go. v. Lutz, 45 South. 675; Hill v. Kimball, 76 Tec. 210; 29 Oyc. 509; 13 Cyc. 42. No brief came to the Reporter.

Heard before Hon. A. O. Lane. Action by J. E. SaLer against the Sloss-Shéffield Steel & Iron Company for personal injuries received from blasting operations. There was judgment for plaintiff, and defendant appeals. The first, second, and third counts of the complaint were in the following language: (1) “Plaintiff claims of defendant, the.

Heard before Hon. H. A. Sharpe. Action by John Burgess against the Tennessee Coal, Iron & Railway Company for damages for personal injuries received by the falling of a roof of a mine. There was judgment for plaintiff in the sum of $1,500, and defendant appeals. The facts, as well as the action of the trial court on the pleadings, are sufficiently set out in the opinion.

Heard before lion. A. H. Alston. diction by John \Y. Yansant against the Louisville & Nashville Railroad Company. From a judgment overruling demurrers to the complaint, defendant appealed.

Heard before Hon. C. C. Nesmith. Action by William J. Bundle, administrator of John M. Bundle, deceased, against the Birmingham Bailway, Light & Power Company. From a judgment for defendant, plaintiff appeals. The general .affirmative charge should not be given whén there is conflict in the evidence. — Tabler v. Sheffield Go., 87 Ala. 305; Southern Ry. Go. v. Hill, 39 South 987; Bir. R. L. & P. Go. r. dones, 45 South. 180; Southern Ry. Go. v. Bush, 122 Ala. 470.

Heard before Hon. Thomas L. Sowell. Action by Avie Northeutt against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.

John Disque. Action by B. Y. McMorris against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. The facts are sufficiently .slated iu the opinion of the court.

<p> Damages for Failure to Deliver Telegram. </p> <p>1. Appeal and Error; Harmless Error; Demurrer. — Any error in overruling demurrer to complaint for variance was harmless where the defendant reaped the full benefit in a charge absolving it from liability if the telegram was sent and properly mailed.</p> <p>2. Principal and Agent; Telegram; Undisclosed Principal. — An undisclosed principal may sue for the failure to deliver telegram to his agent where the telegram is sent to his agent by one acting as his agent in the sending of the telegram.</p>

Heard before Hon. William Jackson. Action by E. L. Crowley against Western Union Telegraph Co., for damages for failure to deliver Telegram. Judgment for plaintiff and defendant appeals. The telegram was in words and figures as follows: “Birmingham, Ala.. June 2, 1906. To Mrs. W. A. Johnson, c/o Shepherd Bros., Berry,. Ala. Coming to-day will bury Freeman cemetery in the morning, dig vault two feet wide, three feet long, select location.

Heard before Hon. A. A. Coleman. Action by Peter Sampson against tbe Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Saffold Berney. Action by the Standard Equipment Company against the Southern Hardware & Supply Company. Judgment for plaintiff, and defendant appeals. The allegations of the complaint are, substantially, that a team of defendant was left standing in the streets of Mobile unhitched, in violation of an ordinance of the city against leaving a team unhitched or unattended, and that the team ran away, injuring a mule of plaintiff.

Heard before Hon. John H. Disque. Action by M. A. Cowan against J. K. Robinson. Judgment for plaintiff, and defendant appeals. There can be no recovery in the absence of negligence and it certainly was not negligence to set fire to the logs on a calm morning. For a complete discussion of this question we call the court’s attention to the case of. — McNally v. Caldwell, 30 Am. St. Rep. 503; Sweeney v. Merrill, 5 Am. St. Rep. 734; Fahn v. Reich curt, 76 Am.

Clair Circuit Court. Heard before Hon. A. H. Alston. Action by W. T. Brown against the Atlanta & Birmingham Air Line Railway for trespass on lands by stock on account of the failure of defendant to erect and keep in proper condition cattle guards. From a judgment for plaintiff, defendant appeals. The following charges were refused to defendant: (1) The general affirmative charge.

Heard before Hon. Saeeold Bbrney. Action by the Bay Shore Lumber Company against the Mobile, Jackson & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Tiie complaint was for the conversation of a lot of lumber, the dimensions of which are set out in the complaint.

Heard before Hon. A. O. Lane. Personal injury action by Nora White against the Corona Coal & Iron Company. Prom a judgment for plaintiff, defendant appeals.

<p> Damages to Grop and Land for Failure to Keep Up Stop-Gap. </p> <p>1. Evidence; Opinion; Damages.- — The amount of damages being a question for the jury, to be determined on the facts testified to, a witness cannot give his opinion as to the amount of damages, but must state the facts.</p> <p>2. Damages; Issue and Proof. — The measure of damages to land being the value before and after its injury, and there being no claim for damages to the grass, the plaintiff should not have been permitted to testify as to the value of the grass damaged in an action for damages to land on account of failure to keep up stop-gap</p> <p>3. Landlord and Tenant; Crops; Injury to Premises; Damages. — A landlord’s damage, where the premises are leased, are limited to the damage done to the land itself, and the landlord is not entitled to damages for grass destroyed or damaged resulting from a railroad’s failure to keep up a stop-gap.</p>

Heard before Hon. A. A. Coleman. Action in trespass by Otto Marx against A. W. Bur-gin. Prom a judgment for plaintiff, defendant appeals. The case made by the facts is that the Birmingham Electric & Manufacturing Company was indebted to Mrs. L. L. McConnell for rent for a storehouse or place of business, and that she sned ont an attachment to enforce the claim, which was levied on an automobile and other property.

Heard before Hon. W. J. Young, Special Judge. Trespass quare clausum by William W. Daffin against the G. W. Zimmerman Manufacturing Company. From a judgment for defendant, plaintiff appealed. Growing trees are a part of the land and the plaintiff had a right to show the condition of the land before and after the trespass in order that the damages might be ascertained. — Brmhmeyer v. Bethea, 139 Ala. 376; 3 C'yc. 36; Sullivan on Damages, 1020.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. A. O. Lane.</p> <p>Action by N. G. Brake against the Stowers Furniture Company. From a judgment for plaintiff, defendant appeals.</p> <p>Tbe complaint is as follows: “Plaintiff claims of defendant tbe sum of $5,000 as damages, for that heretofore, to wit, on or about the 17th day of October, 1905, the defendant, its servants, agents or employes, while acting within the scope of their employment, entered into the house occupied by plaintiff, and then and there assaulted and heat her, and then and there took from her possession and carried away her household furniture, goods, chattels, and jewelry. Plaintiff avers that as a proximate result of said wrong she has been deprived of the possession of said property, has been caused to suffer much physical and mental pain and anguish; that she was greatly distressed, her peace and comfort destroyed, and her health impaired; that she has been caused to lose much sleep and rest, has been caused great inconven, ience and vexation,” etc. This count was amended by adding the words “a corporation” after the words, “Stowers Furniture Company.” Count A is practically the same as count 1, except that it gives the number of the house and its location, and alleges the wrongfulness ■ of the acts complained of. This count alleges the wrongs to defendant itself. Count B: Same as count A, except that it alleges that the agents, servants, or employes of defendant, acting within the line and scope of their duties and employment, committed the acts complained of in the third count. It is further alleged in count B that her injuries are permanent. Count C alleged that defendant wrongfully, willfully, and wantonly committed the acts complained of in count 1, and also the permanency of her injuries. Count D is the same as 0, except that the acts are alleged to have been committed by the servants, agents, or employes of defendant, while acting within the line and scope of their employment.</p> <p>Demurrers were interposed as follows: To the first count, “because it is not averred that defendant committed the wrongs therein complained of; (2) it is averred in said complaint in the alternative that the defendant, its agents, servants, or employes, committed the wrongs therein complained of, without averring that the agents, servants or employes at the time of the commission of the alleged wrong, were acting within the line or scope of their employment or authority.” Defendant refiled demurrers interposed to count 1 to each of the other counts separately, with the following additional grounds: “ (1) The counts fail to allege that plaintiff was rightly possessed of the goods; (2) that plaintiff was the owner of the goods; (3) that plaintiff had possession of the goods as against defendant. (4) It fails to allege that plaintiff’s possession was superior to the rights of said Reynolds and Denegre charged with being the actual tortfeasors.” .</p> <p>Plea 3 was as follows: “Defendant says that all the property that was taken from plaintiff’s house, or the house occupied by plaintiff, was the property of defendant, and that it had the right to immediate possession thereof; and defendant avers that only such force was used as was reasonably necessary to take peaceable possession and control of said property, and that so taking possession and control of said property constitute the acts complained of in plaintiff’s complaint.” Plea 8: “Defendant says and avers that the property taken from the house occupied by plaintiff was its property; that on the-day of-,1905, the defendant, by and through its counsel, filed a suit in detinue for the property so taken from the said house in the justice cout of R. B. Watts, who was holding himself out and exercising the powers and jurisdiction of a justice of the peace in Jefferson county, Ala.; that on the-day of-, 1905, after a service of the complaint on plaintiff in said cause, said R. B. Watts rendered a judgment in defendant’s favor for said property; that thereafter, to wit, on the-day of-, 1905, said R. B. Watts, while exercising said power and jurisdiction of such justice of the peace, issued a writ of restitution on said judgment, and placed the same in the hands of J. T. Burton, who was at the time an acting constable in and for precinct 21, Jefferson county, Ala., the precinct in which said property was located; that said constable or one of his deputies took said property under -said writ of restitution, which was regular on its face, and turned over and delivered said property to defendant as bailee. And defendant avers that it took no part in the taking of said property, and never ratified any alleged wrongful act of said Reynolds and Denegre.”</p> <p>Charge 17 Avas as íoHoavs: “If the jury believe the evidence in this case, they cannot find in favor of plaintiff.”</p> <p>The 3rd plea was good. — Street v. St. Clair, 71 Ala. 110; MaAining v. Wells, 104 Ala. 383; 140 Ala. 274. A Arendor may enter vendee’s premises to retake the property. — 6 Am. St. Rep 695; 6 Encv of Law, 429. The 5th plea was not subject to demurrer. — Burns r>. Campbell, 71 Ala. 271. The court erred in permitting the Avitness Elliott to answer the leading question concerning plaintiff’s complaint of pain. —Phillips v. Kelly, 29 Ala. 628; Felder v. Bates, 26 Ala. 655; Bir. By. Co. v. Hale, 90' Ala. 8. What the doctor said who attended plaintiff was part of the res geste, and should have been admitted.. — Hall v. The State. 130 Ala. 46; A. G. S. v. Hill, 90 Ala. 71; 130 Ala' 83 ; 135 Ala. 511. Charges 2 and 3 should have been given. C. of G. By. Co. v. Freemcm, 140 Ala. 581; Southern B. Co. v. Francis, 109 Ala. 224; City D. Co. v. Henry, 139 Ala. 161; Burns v. Campbell, supra. Charge 14 should have been given. — Gent. v. Freeman, supra. On these same authorities, charges 11, 12, 10 and 17 should have been given.</p> <p>By pleading, the defendant waived his demurrers to the count.- — Bretoer v. Strong, 10 Ala. 961; L. & N. v. Johnson, 135 Ala. 232. The facts alleged in the 2nd plea could have been shown under the general issue which was pleaded and hence, no injury is shown to appellant in the sustaining of demurrers to his special plea. — L. & N. v. Hall, 131 Ala. 161. The 8th special plea fails to show a valid writ. — Bradford v. Boozer, 139 Ala. 502. All the objections to evidence were general as no grounds were stated, and hence, no error is shown here. — Riley v. The State, 88 Ala. 193; Eason v. I shell, 42 Ala. 456; McDaniel v. The State, 97 Ala. 14; Transportation Go. v. Gamnaugh, 101 Ala. 1. The oral charge is not error. —Decatur Go. v. Mehaffey, 128 Ala. 242. Charge 2 was properly refused. — 1 Thompson on Neg. 498. Counsel discuss other charges, but without citation of authority.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before 1-Ion. C. W. Ferguson.</p> <p>Action by Julia E. Lawrence against S. I-I. Kress and S. H. Kress & Co. From a judgment for plaintiff in the</p> <p>sum of $800, defendants appeal.</p> <p>The first count of the complaint was for an alleged slander uttered by an agent of defendant. This count went out on demurrer. The second count was for wrongful arrest and detention of plaintiff on the charge of appropriating to her own use money received by her as a clerk of the defendant. The third count was for wrong-_ ful assault on plaintiff and the searching of her person for money alleged to have been taken and retained by her as defendant’s clerk. The pleas were the general issue. The evidence for plaintiff tended to show that defendants conducted a retail store in the city of Birmingham and that plaintiff was a clerk or saleswoman of defendants; that while waiting on a customer, to Avhom she sold an article for the sum of 10 cents, which she placed in the carriage cup register and sent to the cashier’s desk, the defendants’ manager touched her on the shoulder and told her he Avanted her in the office; that he followed behind her, and that Avhen she got to the back end of the store he stopped her and told her that he had seen where the dime went and that she had dropped it in her pocket; that she told him she did not want to be -searched in a public place, and that if he would take down the cash cup he would see that the dime was in there; that he insisted that he had seen the dime go into her pocket, and that he was going to see right there,, and she told him she wanted him to be perfectly satisfied that she did not get the dime, but did not Avant to be searched in a public place, and that she was Avilling to go into the private office and satisfy him after he looked: into the cash cup, but that he Avent into her pocket and jerked out a handkerchief, check book, and pencil, and'searched her naked pocket, and that he then told her to. go back to the counter, where she had customers waiting,, and that she stayed on till 10 o’clock that evening; that the store was crowded with people at the time he accused' her of putting the money in her pocket, etc.</p> <p>The following charges were refused to the defendant: (2) “If the jury believe the evidence, they must find for-defendant on the second count of the complaint.” (3) Same as 2 as to the third count. The following charges, were given at the request of plaintiff: “(2) If the jury-find for plaintiff, they may in their sound discretion add-punitive damages to Avhatever compensatory damages, they may find. (3) While defendant in this case is not liable for slander, yet defendant S'. IT. Kress & Co., maybe liable for arrest under charge of embezzlement, and' the jury in considering that question may consider all the evidence before the jury as to what was said and done.” “(6) If the jury ¿re reasonably satisfied from the evidence that any one or more witnesses in the case willfully swore falsely in any material particular- in the case, then the jury are authorized to reject the testimony-of the witness or those witnesses entirely.”</p> <p>The evidence failed to show wrongful arrest and detention. — 2 A. & E. Ency of Law, 884; 19 Cyc. 382. Punitive damages were not recoverable. — Foreman r. Bir. R. L. & P. Go., 43 South. 411; Alley r. Daniels, 75 Ala. 403; Garrett r. Sewell', 108 Ala. 521. Counsel disuss other assignments of error but without citation of authority.</p> <p>The general charge requested by the defendant as to the 2nd count was bad in form. — M. & O. r. George, 94 Ala. 201; F. & N. r. Scmdlin, 125 Ala. 585; 139 Ala. 462. The 2nd count was authorized by form 19, p. 946, Code 1896, and Rich r. Mclnnery, 103 Ala. 345, the doctrine of which is reiterated in Fuquay r. Gambill, 144 Ala. 468. On the authorities cited by the appellant the detention was wrong. The 6th charge given for appellee was good.— Williamson I. Go. v. McQueen, 144 Ala. 265; Hale r. The State, 122 Ala. 85; 'A. G.' S. r. Fraser, 93 Ala. 51. Counsel discuss the refusal to grant a new trial, but without citation of authority. They insist that punitive damages were recoverable. — Mitchell v. Gambill, 140 Ala. 317.</p>

Heard before Hon. O. C. Nesmith. Action by Abe Tuvin against Tutwiler Coal, Coke & Iron Company. From a judgment for plaintiff, defendant appeals.

<p>Appeal from Conecuh Chancery Court.</p> <p>Heard before Hon. L. D. Gardner.</p>

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. A. D. Sayre.</p>