Volume 159 — Alabama Reports

Heard before Hon. A. H. Owens. From a conviction of entering into a written contract of hire with a fraudulent intent, Mack Frazer appeals. The contract was properly admitted in evidence. —Greenl. on Evi. sec. 563. Tbe court did not err in reading tbe statute to tbe jury. — Holly v. The State, 75 Ala. 14. Tbe question was indefinite and tbe answer called for by it was irrelevant and immaterial.

Heard before Hon. W. H. Thomas. Ed Bailey was convicted of obtaining money under false pretense from the Louisville & Nashville Railroad Company, a corporation, and he appeals. The indictment was not subject to the demurrers interposed. — White v. The State, 86 Ala. 69; State v. Houl(lah, 78 Minn. 524; Stater. Turvey, 142 Mo. 402; 19 Gye. 425.

Heard before Hon. A. H. Owens. Ramon Pierson was convicted of obtaining money under false pretenses, and appeals. Held: is as follows (omitting formal charging part) : “Before me, R. E. McLnre, a justice of tbe peace in and for said state and county, personally appeared G. W. Henderson, who, being first duly sworn, deposes and says, on oath, that he has probable cause for believing, and does believe, that in said county and within 12 months before…

Heard before Hon. Alto Y. Lee. Sam Steele was convicted of violating section 7342, Code 1907, and he appeals. The contract is in the following words: “State of Alabama, County of Etowah.

Heard before Hon. William Jackson. John Andrews was convicted of murder, and he appeals. The record shows the organization of the criminal court of Jefferson county, the drawing of the grand jury for that term, and the organization of the city court of Bessemer. It is further shown by the certiorari that the city court of Birmingham was organized and the grand jury ordered to turn in report of May 14, 1906.

<p> Murder. </p> <p>1. Jury; Venire; Illegality.—The fact that a capital case set for trial for the second week of court was passed to the succeeding week, did not render the special venire drawn when the case was set, illegal.</p> <p>2. Same; Qualifications; Prior Service.—Under sections 7247 and 7270, Code 1907, regular jurors drawn for the week in which a capital case is set, are not competent as jurors for the trial of such case upon its being passed to a subsequent week of the term, although they were ordered back to serve only for the trial of this special case, during such subsequent week, since they constitute a part of the regular venire and not of the jurors specially drawn.</p> <p>3. Charge of Court; Covered Vy Instructions Given.—It is not error to refuse instructions substantially covered by written instructions given. (Mayfield, J., dissents.)</p>

Heard before Hon. B. M. Miller. Tingy Dumas was convicted of murder in the second degree and appeals. Connsel insist that if poisoning afterwards set in, where the wound was trifling at first, that it is material to know if the deceas ed had any other and Avhat diseases at the time, so as to show the causal connection betAveen the act and the death. — 1 Mayf. 659; Daughdrill v. The State, 113 Ala, 7.

Heard before Hon. S. L. Brewer. Sam Huckabee was convicted of murder and he appeals. The defendant should have been allowed to have shown that Emerson had been convicted. — Wells v. The State, 81 South. 572; Traylor v. The State, 100' Ala. 142. The court erred in refusing charge 2 requested by the plaintiff. — Phillips v, The State, 68 Ala. 471. Counsel discusses other assignments of error, but without citation of authority.

Heard before Hon. A. H. Alston. Sam Tannehill was convicted of murder in the second degree, and he appeals. The remarks of the solicitor were wholly unsupported by the evidence and the refusal of the court to withdraw them from the jury was error to the great injury1' to the appellant. — Scott v. State, 110 Ala. 48; Drennen v. State, 185 Ala. 69; B Jiam Nat.

Heard before Hon. H. B. Postee. Collins Maddox was convicted of murder in the second degree, and appeals. The witness Lucinda Murray, being on the stand, was asked the following questions and made the following answers, to which objections were made and overruled, and to which exceptions were reserved: “(1) State whether Collins Maddox, after the cutting, went home, and got a gun, and came back up there.

<p> Assault and Battery. </p> <p>1. Courts; Time for Opening. — The Act of 1890-1, p. 68, amending section 750, Code 1886, only repeals said section so far as it applies to the counties mentioned therein, and does not have the effect to revise and extend the section so as to make it apply to counties previously removed from its influence, and does not have the effect oí repealing Acts 1888-9, p. 64, authorizing the opening of the courts in the 3rd and 5th circuit at 10 A. M.</p> <p>2. Statutes; Amendment in Passage; Changing Original Purpose, —Where the change in the statute pending its passage, was from the word, opening, to the word, holding, in regulating and fixing the time for opening or holding court, such change did not render Acts 1888-9, p. 64, violative of section 19, article 4, Constitution 1875; the terms as used, being synonymous.</p> <p>3. Indictment and Information; Return; Presence of Grand Jurors —Section 4914, Code 1896 is sufficiently complied with when the record recites that the indictment was returned into open court by the foreman in the presence of all the other grand jurors, and it was shown that there were more than eleven other grand jurors present.</p> <p>4. Charge of Cowt; Reasonable Doubt. — A charge asserting that if after considering all the evidence the jury had a reasonable doubt of the guilt of the defendant, they will give the benefit of the doubt to the defendant and return a verdict of not guilty, is a proper statement of the law; such charge is not covered by a charge given as follows: If any member of the jury have a reasonable doubt of the guilt of defendant, the jury will not return a verdict of guilty.</p> <p>5. Trial; General Charge; Bequest. — Where the prosecution was for a felony and the conviction was for a misdemeanor, and there was no evidence to show that the misdemeanor was barred by the statute of limitation, the general charge which did not separate the misdemeanor from the felony, the point not having been otherwise raised, was properly refused, where the evidence authorized a conviction of the felony.</p> <p>6. Indictment and Information; Conviction of Lesser Offense; Limitation. — A conviction for assault and battery under an indictment charging assault with intent to murder, cannot be sustained if the assault and battery is barred by the statute of limitations, although the felony charged is not so barred.</p>

Heard before Hon. John T. Lackland. Gray Dial was convicted of retailing liquor without a license and appeals. The indictment was in code form for retailing liquor, and, while the record does not disclose in what particular portion of Marengo county the selling occurred, it shows that it was within the county.

Heard before Hon. S. L. Brewer. John Smith was convicted of unlawfully selling liquor, and appeals. The witness Ford, in answer to the question as to whom he was working for in the case, stated that he was a marshal of Roanoke and working in the interest of the Law and Order League of the county, and as marshal desired to see the law inforced.

' Heard before Hon. A. O. Howze. Julius Marks was convicted of selling mead, a spirituous liquor, and be appeals. The demurrers to the indictment should have been sustained. — Noles v. The S'tatGj 26 Ala. 31; Dentler v. The State, 122 Ala. 70; Bibb v. The State, 83 Ala. 84; Dorman n. The State, 34 Ala. 216 and cases there cited; 1 Ency. P. & P. 68; 22 Cyc. 361. The third count does not charge that mead is a beverage.

<p>Appeal from Payette Circuit Court.</p> <p>Heard before Hon. S. H. Sprott.</p> <p>John Glasscock was convicted of violating a local prohibition law, and appeals.</p> <p>The complaint filed by the solicitor in the circuit court is as follows: “The state of Alabama, by its solicitor, W. B. Oliver, complains of John Glasscock that within twelve months before the commencement of this prosecution he did sell spirituous, vinous, or malt liquors without a license and contrary to law. The state of Alabama, by its solicitor, W. B. Oliver, further complains of John Glasscock that within twelve months before the commencement of this prosecution, he did sell, give away, deliver, or otherwise dispose of spirituous, vinous, or malt liquors contrary to law.” Objection was made to this complaint, because it was a departure from the original affidavit, and because this was an appeal from the county court of Fayette county, in which a trial by jury was demanded, and that before the case could properly be in the circuit court an indictment by grand jury must have been preferred. The witness for the state testified that on the first Sunday in February, 1908, he purchased a quart bottle of liquor from the defendant, paid him fl for it, and that the defendant and his son delivered the same at the house of the witness. The defendant’s evidence was that he had some phosphate gin at his house and that he told the state’s witness where it was, after the state’s witness had asked him several times for whisky, and that he knew the boys Avho Avere Avith the witness, so told them Avhere the whisky Avas in his house, and to go and steal it, or get it some Avay, and drink it up, but that he received no money for it. It was admitted that the alleged gift or sale was within the corporate limits of the town of Fayette, that the house of defendant was within said incorporation, and that the town Avas incorporated and had police jurisdiction both day and night. The defendant requested the affirmative charge, and another charge, as follows: “If the jury believe from all the evidence in this case that it was only a gift of the alleged Avhisky, and that defendant did not receive anything for the same, then you must find the defendant not guilty.”</p> <p>The defendant’s motion to strike and also the motion assailing the constitutionality of the act under which the cause was transferred should have been sustained. — Acts 1901, p. 688; State v. Southern Ry. Go., 115 Ala. 250; Montgomery v. The State, 88 Ala. 141; Net? parte Reynolds, 87 Ala. 138; Ex pm-te Cowart, 92 Ala. 94; Stewart v. Commissioners, 82 Ala. 209. The question is not so much whether all the matters treated in one and the same statute could be treated as a single subject matter, but whether they were so treated in the act under consideration. — Balla/ntyné v. Wichersham, 75 Ala. 533; Rodgers v. Tolbert, 58 Ala. 523. If, for any reason the act was defective, the matter should have gone to the grand jury. — Reeves v. The State, 96 Ala. 33; Collins v. The State, 88 Ala.. 212. The petition and alleged order only shows a purpose to prohibit a sale and under the special act, the defendant could not be convicted for giving. — State v. Davis, 130 Ala. 148; Watson v. The State, 140 Ala. 134; Tohn v. Merritt, 117 Ala. 485; Miller v. Jones, 80 Ala. 89. The court erred in sentencing the prisoner to pay-costs at 30 cents per day.</p> <p>It is competent for the Legislature to regulate the trial of misdemeanors as was done in this instance (Acts 1900-01, p. 689), and to provide that on appeal from the county to the circuit court, the trial should be on the affidavit and warrant without the intervention of the grand jury. — Witt v. The State, 130 Ala. 129. The Act of 1907, pp. 200 and 96, is constitutional and valid.</p>

Heard before Hon. S. L. Brewer. J. T. Moore, alias, etc., was convicted of distilling without a license, and appeals. The evidence sufficiently appears from the opinion.

C'lair- Circuit Court. Heard before Hon. John W. Inzer. From a conviction for giving- away intoxicating liquor, George Hallmark appeals. Under tbe undisputed evidence in this case the defendant was not guilty as charged. — Campbell v. The State, 69 Ala. 271; Morgan v. The State, 71 Ala. 72.

Heard before Hon. G. K. Miller. Henry Davis was convicted of robbery, and appeals.

Heard before Hon. S. L. Weaver. From a conviction of petit larceny John Harris appeals. No demurrer is set out in the record and hence no ruling is presented on that question. — McQueen v. The State, 138 Ala. 63. The court properly allowed the affidavit to be amended. — Light v. The State, 136 Ala. 139.

Heard before Hon. W. H. Thomas. Jolm Johnson was convicted of grand larceny and he appeals. Clearing house certificates possess an intrinsic value.- — -5 Gyc. 613, note 48. The description was sufficient.- — Grant v. The State, 55 Ala. 208; Garden v. The State, 89 Ala. 130. Clearing house certificates are legal money. — Noble v. The State, 59 Ala. 81.

Heard before Hon. A. H. Owens. Will Adams was convicted of larceny and he appeals.

<p>Appeal from Shelby County Court.</p> <p>Heard before Hon. A. P. Longshore.</p> <p>The Birmingham Water Works Company was convicted of willfully obstructing the public road. Among other penalties affixed was a solicitor’s fee of $50. The corporation entered a motion to retax cost and fix the solicitor’s fee at $7.50. Prom a judgment denying this motion, it appeals.</p> <p>The right to arbitrarily discriminate against the corporation does not exist. — Goff, etc., Ry. Go. v. Ellis, 165 U. S. 150; Gotting v. Kansas Oity Stock Yards, 183 U. S. 79; R. R. v. Morris, 65 Ala. 193; Smith v. L. & N., 75 Ala. 449; Garter Bros. v. Coleman, 84 Ala. 256; Randolph v. B. & P. S. Co., 106 Ala. 511. It follows from these authorities that the fee of $7.50 is the one contemplated by the legislature under section 4561, Code 1896 to be taxed for a conviction of the offense here charged although defendant is a corporation. The solicitor’s fee is a part of the punishment and to exact a larger fee against a corporation than against an individual would be a discrimination. — Caldwell v. The State, .55 Ala. 133; Barbour v. Connely, 113 U. S. 27; H. Cyc. 1076.</p>

<p> Habeas Corpus. </p> <p>1. Statutes; Local and Special; Repeal. — Section 10, Oode 1907, applies only to repeals by implication, and therefore, is not in conflict with sections 6733, Oode 1907, which section repeals all local or special laws in conflict with it, relative to the fixing and defining the jurisdiction of justices of the peace in criminal matters.</p> <p>2. Justices of the Peace; Criminal Jurisdiction.- — -The criminal jurisdiction of justices of the peace is of legislative rather than constitutional creation, and the legislature may withdraw this jurisdiction ■whenever deemed expedient, so that Acts 1900-01, p. 794, is a valid enactment, although it withdraws criminal jurisdiction from the justice of the .peace of Mobile; and such act is not repealed by section 6733, Oode 1907,- as that section applies only to justices of the peace having criminal jurisdiction.</p>

Heard before Hon. William Jackson. Prom a conviction for having possession of a pistol less than 24 inches in length, Lon Tyler appeals. The Act under which defendant was convicted violates section 62 of the Constitution of 1908. — State v. Reed, 1 Ala. 612. The court erred in sustaining the demurrers to pleas 1 and 2. — Authorities supra. Counsel discuss errors relative to evidence, but without citation of authority.

Heard before Hon. W. L. Pratt. J. C. Templin was convicted of trespassing after warning, and he appeals. The affidavit was in the following language: “Personally appeared before me, G. G. Pate, a justice of the peace in and for said county, O. C. Peyton, who being duly sworn, says on oath that J. 0.

Heard before Hon. O. J. Semmes. Lawrence Bnrt was convicted under an indictment charging the use of insulting, etc., language in the presence of females, “and violation of the anti-boycott act (Laws 1903, p. 281), and appeals. The first count in the indictment charges the use of insulting, etc., language in the presence of females.

<p> Damages for Injury to Passenger. </p> <p>Carriers; Passengers; Complaint; Sufficiency. — The facts stated in counts 11 and 12 would support a charge of simple negligence, but wanton or willful misconduct cannot be predicated upon them; and where on such facts stated, the pleader attempts to predicate a charge of wanton or willful misconduct, this renders such count inconsistent and repugnant in averment.</p>

Heard before Hon. A. D. Sayre. Action by F. E. Ashley against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. C. C. Nesmith. Action by William Horan against tbe Cray & Dudley Hardware Company for damages for injuries suffered in the course of his employment. Judgment for defendant, and plaintiff appeals.

Heard before I-Ion. T. L. Sowell. Action by Robert E. Bowen against the Pennsylvania Coal Company. From a judgment for plaintiff, defendant appeals. The complaint contained a number of counts.

Heard before Hon. Saffold Berney. Action by Bart • B. Chamberlain, administrator, against the Southern Railway Company, for the death of his; intestate. Prom a judgment for defendant, plaintiff appeals.

Heard before Hon. A. 0. Lane. Action by Robert Green, an employe, against tbe Sloss-Slieffield Steel & Iron Company, for damages caused to his person by a rock falling from tbe roof of tbe ■miry of a mine. Judgment for plaintiff and defendant appeals. Tbe court erred in permitting Mason to answer tbe question as to whose duty it was to inspect and -prop and keep up tbe roof of tbe entry in that mine. — Ward v..

Heard before Hon. H. A. S'harpe. Action by Dan Ohamblee, against the Sloss-Sheffield Steel & Iron Company. Prom a judgment for plaintiff defendant appeals.

Heard before Hon. Williams Jackson. Action, by Joseph Huggins against the Southern Railway Company for personal injuries. From a judgment for defendant, plaintiff appeals. For pleading and facts on former appeal in this case, see Huggins v. Southern Ry. Go., 148 Ala. 153, 41 South. 856.

Heard before Hon. John Pelham. Action by Harry Rosen against the Anniston Electric & Gas Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. W. W. Quarles, Special Judge. Action by R. W. Price, agent, against the Louisville & Nashville Railroad Company, for failure to deliver goods. From a judgment for plaintiff, defendant appeals.

Heard before Hon. H. A. Pearce. Action by R. M. Sturgis against tbe Central of Georgia Railway Company for damages to land from tbe trespass of stock. From a judgment for plaintiff, defendant appeals. The action was begun in tbe justice court, and summons was executed on tbe 6th day of January, 1904.

Heard before Hon. A. I). Sayre. Action by the Dothan Mule Co., against the Central of Ga. Ry. Go., for damages to live stock during transportation. Prom a judgment for plaintiff defendant appeals.

Heard before Hon. A. D. Sayre. Action by Bradley & Edwards against tbe city council of Montgomery and others. From a judgment for plaintiffs, defendants appeal. The case made by the complaint is that.

Heard before Hon. C. W. Ferguson. Action by G. B. McLemore against the City of West End. From a judgment for defendant on demurrer to the complaint, plaintiff appeals. The sixth amendment, alluded to in the opinion, is an amendment to the third count of the complaint by striking therefrom the word “unmanageable,” where it occurs therein, and inserting in lieu thereof the word “frightened.” The other pleadings and the rulings thereon sufficiently appear in the opinion.

Heard before Hon. A. D. Sayre. Action by Eliza Shirley against the city of Montgomery for damages for injuries received on account of a defective bridge. Judgment for plaintiff in the sum of $3,000.00, and defendant appeals. The court should have stayed the proceedings until the costs in the former suit had been paid. — Hamilton v. Maxicell, 119 Ala. 23.

Heard before Hon. H. B. Foster. Action by R. M. Leland against tbe Western Union Telegraph Company for failure to promptly transmit a telegram. From a verdict for plaintiff for° the pric/J paid for the transmission of a telegram and the costs defendant appeals. The demurrers to the 3rd count of the complaint were not well taken. — L, & N. R. R. Go. v. Orr, 121 Ala. 489; Martin’s Case, 117 Ala. 367; Crocker’s Case, 95 Ala. 412; R. R. Co. v. Lee, 92 Ala. 262.

Heard before Hon. Henry B. Foster. Action by John Beal, Jr., against Postal Telegraph & Cable Company for damages for the failure to promptly deliver a telegram. Judgment for plaintiff and defendant appeals. Under the facts in this case, the damages claimed for physical suffering should not have been allowed as an element of ¡recovery. — W. U. Tel Go. v. Lovett, 58 S. W. 204; same v. Reed, 85 S. W. 1171; Daugherty v. W. U. Tel. Go., 75 Ala. 168; W. U. Tel.

Walker Law and Equity Court. Heard before Hon. T. L. Sowell. Action by J. B. Benson against tbe Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. The pleadings and tbe facts are sufficiently stated in tbe opinion of tbe court.

Heard before Hon. H. A. Sharpe. Action by Charley Grover against the Birmingham Ore & Mining Company for personal injuries caused bv blasting. There was judgment for plaintiff, and defendant appeals.

Heard before Hou. H. A. Sharpe. Action by G. S. Richards administratrix of the estate of G. W. Hill, deceased, against Andrew W. Burgin as sheriff for damages for causing the death of deceased while attempting to arrest him. Judgment for defendant, and plaintiff appeals.

Heard before Hon. W. W. Pearson. Action by W. 0. Robbins, Jr., against the Cohn & Goldberg Lumber Company. Judgment for plaintiff, and defendant appeals. The cause of action is based upon the injury done to the horse and buggy of plaintiff by being rim into by a team of oxen and wagon belonging to the defendant and at the time under the control and management of one L. F. Hood, a servant of the defendant.

I-Ieard before Hon. S. L. Breaver. Action by C. E. Little against M. H. Bufford for damages for cutting trees from land. From a judgment for plaintiff, defendant appeals. The first count is for cutting or sawing 300 pine trees groAving upon the land of plaintiff, which, is described as the E. % of N. W. % of section 21. The second count is for carrying away 300 pine trees, AAdiich had been cut down and Avere on the said land. The defense Avas the general issue.

Heard before Hon. A. A. Coleman. Action by F. B. Buck against thé Louisville & Nashville Railroad Company. From a.judgment for defendant, plaintiff appeals. The facts are sufficiently stated in the opinion.

<p>Appeal from Limestone Circuit Court.</p> <p>Heard before I-Ion. D. W. Speaks.</p> <p>Action by Mattie B. Coleman against L. B. Pepper for trespass to realty. There Avas judgment for plaintiff, but on motion the judgment Avas set aside and new trial granted. From this last judgment plaintiff - appeals.</p> <p>A new trial should not he granted for a mere difference between the court and the jury as to the proper amount of damages that should be awarded. — Tenn. C. I. & R. R. Co. v. Stevens, 115 Ala. 461; Cobb v. Malone, 92 Ala. 630; 14 En. of PI. & Pr. 764, & 772. Where there is no legal measure of damages, as in torts, the amount is referred to the discretion of the jury, and no mere difference of opinion as to the amount of damages will justify an interference by the court unless the amount is so unreasonable and excessive as to be indicative of passion, prejudice, partiality, or corruption of the jury.— 14 En. of Pr. p. 756 & p. 777; 8 Am. & En. of Law (2d Ed.) p. 629; Huckle v. Money, 2 Wilson, 205, (Extract from opinion cited in 3 Parson on Contracts, 8th Ed. p. 175 n. o.) In an action of trespass quare clausum fregit, exemplary damages may be given, where the tortious act is attended with circumstances of aggravation. — Western Union Telegraph Co. v. Dickens, 45 So. 469; Mitchell v. Billingsley, 17 Ala. 391; Parker v. Mise, 27 Ala. 480; Dcvaughn v. Heath, 37 Ala. 597, (595); Rosser v. Bunn, 66 Ala. 93, (89) ; 13 Cyc. p. 112; 28 Am. & En. En. of Law, (2d Ed.) p. 610; L. & N. R. R. Co. v. Smith; 141 Ala. 335. Where the injury is wanton or wilful the jury are authorized to give any amount of damages beyond the actual injury as a punishment. — Parker v. Mise„ 27 Ala. 480; Mitchell v. Billingsley, 17 Ala. 391; Ala. C. S. R. Co. v. Frasier, 93 Ala. 48; Mobile F. O. Co. v. Little, 108 Ala. 399; Ala. C. S. R. Co. v. Burgess, 119 Ala. 555; Western U. Tel. Co v. Seed, 115 Ala. 670; 13 Cyc. p. 110. In an action for unliquidated damages for a tort, the trial court has the power to permit the entry of a remittitur. — 18 En. of PI. & Pr. 125'; Ala. C. S. R. Go. v. Burgess, 119 Ala. 555; B'ham Electric Co. v. Ward, 124 Ala. 409.</p> <p>The spirit in which a trespass is committed may he shown in mitigation of damages. — 3 Joyce on Damages, §§ 2116-17; Sparknum v. Swift, 81 Ala. 231; Burns n. Campbell, 71 Ala. 271; Jenkins v. Cooper, 50 Ala. 419; Barrett v. City of Mobile, 129 Ala. 179; Code of 1896, § 3898. Any facts or circumstances which were an inducement to the transaction, which is an occasion of an action, are admissible in evidence in mitigation of damages. — Bolling v. Wright, 16 Ala. 664; Bird v. Womack, 69 Ala. 390; 28 Am. & Eng. En. Cyc. Law (2d.) 603. Exemplary damages may only be recovered if the trespass of which complaint is made was committed with a bad motive, with an intent to harass, oppress or injure; though the fact that it is wantonly, recklessly, or knowingly committed is a circumstance which may go to the jury for its consideration as to the question of malice. — 3 Joyce on Damages, § 2116; Alley v. Daniel, 75 Ala. 403; DeVaughan v. Heath, 37 Ala. 595; Lienkauf v. Morris, 66 Ala. 406; Garrett v. Sewell, 108 Ala. 531; Parker v. Mise, 27 Ala. 480; Garrett v. Sewell, 93 Ala. 9; Wilkerson v. Searcy, 76 Ala. 176; L. <f- N. Ry. v. Bizsell, 131 Ala. 429; Brinkmeyer v. Bethea, 139 Ala, 376; Mitchell v. Billingsley, 17 Ala. 391; Rhodes v. Roberts, 1 Stewart, 145; Snedccor v. Pope, 143 Ala. 275. Where exemplary damages are claimed and are recoverable, the court should not., by its charge, give to the jury, “A discretionary power without stint or limit, highly dangerous to the rights of the defendant;” for such instructions or instructions, “leaves them Avithout any rule whatever.” — Alley v. Daniel, 75 Ala. 403; Lienkauf v. Morris, 66 Ala. 405; $. & N. Ry. v. MeLendon, 63 Ala. 266; Southern Ry. Go. v. Bunnell, 138 Ala. 247; Garrett v. Sewell. 108 Ala. 525; 2 Thompson on Trials, §§ 2073, 2074, 2076. Where the lower court grants a new trial and the appeal is from that ruling, the decision of the lower court “will not be reversed unless tbe evidence plainly and palpably supports the verdict.” — Cobb v. Malone, 92 Ala. 630; White r. Blair, 95 Ala. 148; Roe r. Doe, 43 So. Kep. 856. If any ground of motion for a new trial is well taken the action of the trial court in granting it will not be reversed by this court. — HmitK v. Tombigbee & N. Ry. Co., 141 Ala. 332.</p>

<p> Trover and Case. </p> <p>1. Trover and Conversion; Complaint; Failure to Aver Time. — A complaint in trover which fails to aver the time of the alleged couversion is insufficient and open to demurrer. (Form 24, page 1199, Code 1907.)</p> <p>2. Same; Pleading; Sufficiency of Plea. — A plea as an answer to an action brought by a mortgagee which alleges that the proceeds of the goods alleged to have been converted, had been applied to a lien upon the goods superior to that of plaintiff, but which fails to allege the ownership of the lien is too indefinite and uncertain and open to demurrer as such.</p> <p>3. Same; Title to Sustain. — In order to sustain an action of trover and conversion the plaintiff must have at the time of the conversion title to the property converted, general or special, and possession, or the immediate right of possession; and where the plaintiff claims under a mortgage on a growing crop by the terms of which the property was to remain with the mortgagor until a specified future date, such plaintiff could not maintain trover where a conversion of the property occurred before that time.</p>

Heard before Hon. H. A. Pearce. Trover by I-I. M. Monk against the Gulf Yellow Pine Lumber Company. From a judgment for plaintiff, defendant appeals. The evidence for the plaintiff tended to show that he purchased the land from one S. A. I).

<p> Damages for Causing Overflow of Land. </p> <p>Limitation of Action; Accrual of Right of Action; Overfloiuing Lands. — In an action for injuries' to land from overflow caused by the neglect of the railroad company to keep open culverts lawfully erected, limitations begin to run from the time of the injury and not from the time of the construction of the railway.</p>

<p> Action for Damage to Goods on Account of Defective Water Pipe. </p> <p>1. Landlord and Tenant; Leased Premises; Injuries From Defects. —A tenant takes premises in the condition in which they are when leased, and the landlord Is not liable to the tenant for injury to the tenant’s property resulting from the unsafe condition of the premises unless the landlord has agreed to repair or has misrepresented the condition of the premises; and this is true, whether the tenant rents all or only a part of the premises.</p> <p>2. Same; Injuries from Defective Condition; Complaint. — Counts which allege that plaintiff leased the lower story of the defendant’s building; that there-were pipes running through a portion of the building to convey water to the second floor and that one of them burst, and water leaked through the second story on plaintiff’s goods; that defendant was negligent in that the pipes were defective and unsound, and that it was the duty of defendant to keep the pipes in a sound condition, and on account of his failure they burst, charged negligence in that the pipes were defective, and are, therefore, demurrable on account of a failure to show a covenant to repair, an agreement in respect to the condition of the building or a misfeas anee on the part of the landlord.</p> <p>3. Same; Pleading. — The averment .that the defendant landlord was the owner of the premises and had charge and control of the water pipes, by and through her agent, and knew that said pipes were defective and unsound and negligently failed to repair the same is not equivalent to an averment that the pipes were defective at the time of the lease or negative the fact that the tenant knew it, and made no effort to ascertain the condition of the premises.</p> <p>4. Same. — In an action by a tenant of the first floor of the building against the landlord for injuries from water pipes bursting on the second floor, a count which avers that the landlord had at the time the care and charge of keeping such pipes in repair and good order; that it was her duty to do so, and in the exercise of such care and charge defendant failed to keep said pipes in good order and was negligent in using weak and defective pipes, and that by reason thereof, the pipes burst or leaked, and that such negligence is tne proximate cause of the damages, being on the theory of a failure to keep in repair a portion of the building not rented to plaintiff is demurrable for failing to aver knowledge or notice of the defect on the part of the defendant.</p> <p>5. Pleading; Conclttsions. — An averment, in an action by a tenant against a landlord for damages from the bursting of a water pipe, that it was the duty of defendant to keep the pipes in a sufficiently safe condition so as to safely convey water, except by way of conclusion averred no duty on the landlord.</p> <p>6. Same; Construed, Against Pleader. — Tlie words, charge and control, as used in the counts of the complaint are susceptible of being construed as referring to the time when the lease was made, and will be so construed as against the pleader.</p> <p>7. Same; Complaint; Reference to Other Counts. — Where a count in a complaint is rendered unintelligible by reference to another count, which was perhaps inadvertently put in, the court cannot change the writing but must read it as found.</p> <p>8. Negligence; Condition and Use of Premises; Care Required in General. — 'Where the complaint is by the occupant of the lower floor of a building against the occupant or a person in control of the upper floor for damages by the bursting of a water pipe on the second floor, based on the duty of one to so use his property as not to injure another, it need not aver the relationship between the parties, whether that of tenant or landlord, or that of distinct ownership.</p> <p>9. Same; Complaint. — A complaint alleging 'that plaintiff was lawfully in possession of stores on the grade floor of a certain building and had a large quantity of goods stored therein; that defendant was the owner and had charge of certain lavatories and the pipes used to convey water to the same; that said pipes were "defective, unfit to convey water with safety, and that they burst and water flowed througn on plaintiff’s goods; that defendant had notice of the defective condition of the pipes several days prior to their bursting, and that their bursting would be liable to injure plaintiff’s goods; that defendant was the owner, had the care and control of said hallway along which the pipes ran, and of the lavatory and pipe, but negilently failed to keep said pipes in repair, and that as a result, etc., plaintiff was damaegd, states a cause, of action of duty of one to so use his property as not to injure others, and is not demurrable.</p> <p>(Tyson, C. X, Denson and Anderson, JX, dissent.)</p>

<p> Malicious Prosecution. </p> <p>1. Appeal and Error; Record; Questions Presented; Demurrer.— Where the record fails to disclose what the amendment to a complaint. was, and the minute entry recites that the demurrer was sustained to the count as amended, the court’s action relative to the demurrer to the amended count cannot be reviewed.</p> <p>2. Malicious Prosecution; Gomplaint; Sufficiency. — A count in malicious prosecution should aver the issuance of process; so a count averring only that the defendant maliciously and without probable cause therefor made an affidavit against the plaintiff charging him with refusing or failing to work the public road, and as a proximate consequence thereof plaintiff was arrested, and required to give bond, and that the charge had been judicially investigated and plaintiff discharged is insufficient. And the count is insufficient as a count in trespass for false imprisonment, because it fails to aver that the defendant arrested and imprisoned plaintiff or caused it to be done.</p> <p>3. Warrants of Arrest; Signature; Validity.- — -A warrant of arrest issued by a justice of the peace, but not signed by him officially or with the initials of his office, and the official character of the signature nowhere appearing thereon, is invalid, although it is signed by the individual who is the justice. (Sec. 5208, Code 1896.)</p> <p>4. Evidence; Judicial Notice; Justices of the Peace. — While the court takes judicial notice of who are the justices of the peace, yet the court cannot judicially know that there are not others of the same name, and hence cannot judicially know that the signature is that of the Justice of the peace issuing ixrocess, where the same is signed, individually, and without insignia of office of any kind.</p> <p>5. Same; Parol Evidence; Adding to Terms of Writing. — A warrant of arrest can not be aided as to its validity by parol evidence to show that the person who signed it was a Justice of the Peace; warrants should be valid on their face to authorize their execution.</p>

Heard before Hon. D. W. Speake. Action by Frank McDaniel against James F. Cain for malicious prosecution and false imprisonment. From a judgment for defendant, plaintiff appeals.

Heard before Hon. L>. W. Speake. Action by J. A. Emerson against tbe Lowe Manufacturing Company. From a judgment for defendant, plaintiff appeals. Tbe controverted facts sufficiently appear in tbe opinion of tbe court.

Heard before Hon. O. C. Nesmiti-i. Action for slander by J. A. Turner against R. E. Johnston. Judgment for plaintiff, and defendant appeals. The court erred in overruling demurrers to the 3rd count as originally filed and as amended. — 20 A. & E.Ency of Law, 799; Gaither v. Advertiser Go., 102 Ala. 463.

Heard before Hon. C. 0. Nesmith. Action by C. W. Austin against P. G. Sheppard. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. O. Lane. Action by Alice Cain against George Hyde for an assault and battery. Judgment for plaintiff defendant appeals. The court erred in giving the general charge. — Tabler, et al. v. Sheffield Co., 87 Ala. 305; E. T. V. & R. R. Co. v. Baker, 94 Ala. 632; Holmes v. Bir. S. R. R. Co., 140 Ala. 208. The question of the assault should have been submitted to the jury.— 8 Cyc. 1066; lb. 1099, subd. 8.

<p>Appeal from Morgan Circuit Court.</p> <p>Heard before 1-Ion. 0. Kyle.</p> <p>Assumpsit by A. G-. Henry against the Frst National Bank of Decatur. Judgment for plaintiff and defendant appeals.</p>

Heard before Hon. H. A. Pearce. Action on a promissory note by T. J. Scott & Sons against Rawls & Rawlsr From a judgment for defendant, plaintiffs appeal.

Heard before Hon. William Jackson. Action by W. O. Carroll against J. B. Burgin and others, sureties on his official bond as sheriff, to recover the value of the property recovered by plaintiff in a detinue suit, which was alleged to have been lost to plaintiff by the refusal of his deputy to receive it. From a judgment for defendant plaintiff appeals. The court erred in overruling the demurrer to the 2nd plea. — Brewster v. Gavin, 127 Ala. 319; Rymi v. Couch, 66 Ala. 249.

Heard before Hon. W. W. Haralson. Assumsit by James R. Thomas against D. P. Bohanan. For a judgment for plaintiff, defendant appeals. The action was for breach of the following contract: “September 22, 1902. This agreement, between D. P. Bohanan, of the first part, and J. R. Thomas, of the second part, witnesseth: That the said D. P. Bohanan has sold to said Thomas 80 acres of land (here follows the description) for the sum of $648, to be paid in notes.

Heard before Hon. H. B. Foster. Action by the Cate City Cotton Milis against the Rosenau Hosiery Mills for the breach of an executory contract for the sale of hosiery yarns. Judgment for plaintiff and on motion of defendant an order was entered granting defendant a new trial. From this order plaintiffs appeal. This appeal is taken under section 2846, Code 1896.

Appear from Selma City Court. Heard, before 1-Ion. J. W. Mabry, Action by J. Mars & Co., against J. A. Shuttleworth & Co., begun by attachment. From a judgment for plaintiff defendants appeal.

I-Ieard before Hon. A. D. Sayre. Action by Bessie K. Massie against Montgomery Lodge No. 596, Benevolent Protective Order of Elks, to recover $500 paid on a real estate transaction not consummated. From a judgment for plaintiff, defendant appeals.

Heard before Hon. H. A. Pearce. Assumpsit by Chapman & Co., against the Gulf Yellow Pine Lumber C'o., to recover for goods sold one Lord, a boarding house keeper. Prom a judgment for plaintiff defendant appeals. The corporation was without power to make the contract relied on. — Chewacla L. T'F. Co. v. Dismukes, 87 Ala. 344; First Nat.

Heard before Hon. A. D. Sayre-. Action by Nathan Hellner against the Firemen’s Fund Insurance Company. From a judgment for plaintiff, defendant appeals. The complaint was in Code form as to counts 1, 2, and 3.

Heard before Hon. A .A. Coleman. Action by the Foy-Hays Construction Company against Theo. Poull, doing business as Theo. Poull & Co. Judgment for plaintiff, and defendant appeals. The first count in the complaint is for breach of a contract entered into between the parties on the 17th day of July, 1905, for the building by the Foy-Hays Con-, struction Company of certain work upon a-high school at a fixed price of $1,000, and an acceptance thereof by the Theo.

Heard before Hon. W. W. Haealson. Action by W. M. Bankston against J. M. Elliott, Jr., for damages for the breach of a lease, contract. There was judgment for plaintiff and defendant appeals. The declarations of an agent as to bygone transactions are not admissible against his principal, nor are bygone transact.iaons themselves admissible when they lie outside of the agency attempted to be shoAvn. — 12 Ala. 252; 30 Ala. 553; 61 Ala. 139.

<p>Appeal from Wilcox Circuit Court.</p> <p>Heard before I-Iou. Thom. L. Cochran, Special Judge.</p> <p>Assumpsit by the Farmers O. & M. Co. v. Melton & Stuart. From a judgment of dismissal plaintiff appeals.</p> <p>No discontinuance happened. — Ex parte Iiumes, 130 Ala. 203; Garrett v. Mayfield W. Mills, 44 South. 1026; Ex peurte State, 71 Ala. 367.</p> <p>The suit was discontinued. — Ex parte Hall, 47 Ala. 680; Ex parte H. E. A. B. B. Go., 37 Ala. 679; S'ec. 3283, Code 1896; Armstrong v. Robinson, 2 Ala. 164; State v. Drinlchari, 20 Ala. 9; Barclay v. Barclay, 42 Ala. 347. There was no waiver by the entrance of the defendant as the entrance was special. — Tampley v. Beavers, 25 Ala. 534; Griggs v. Gilmer, 54 Ala. 425; 19 Wall. 570; 16 Wall. 203; Stetson v. Goldsmith, 30 Ala. 602; Scott v. Hull, 14 Ind. 136.</p>

Heard before Hon. Thomas W. Wert. Action by B. F. Asliby and others against John C'atbcart. From a judgment for defendant on nonsuit, plaintiffs appeal.

<p> Action for Breach of Contract.. </p> <p>1. Vendor and Purchaser; Contract; Concurrent Condition. — A contract whereby the purchaser agrees to purchase and the vendor agrees to sell the real estate therein described for a specific consideration, contemplates that the payment of the price and the exeutiou of the conveyance should be contemporaneous, and creates concurrent dependent conditions on each to do that which each had engaged to do.</p> <p>2. Same; Breach of Contract; Complaint. — Under a contract whereby the purchaser agrees to buy and the vendor to sell certain described property at a given price, the complaint for a breach thereof which alleges that the purchaser was ready, able and willing and offered to comply with his part of the contract, and that the vendor refused to convey the property, sufficiently avers performance by the purchaser of the acts necessary to put the vendor in default.</p> <p>3. Same; Contract; Performamce. — Where the vendor refuses to convey it is not encumbent on the purchaser to tender to the vendor a deed to the property prepared for conveyance; in order to maintain an action for the breach of the contract.</p> <p>4. Same; Price. — A contract for the sale of real estate for a stated consideration imports the payment of cash in the absence of stipulations for credit.</p>

<p> A ssumpsit. </p> <p>1. Appeal am,d Error; Harmless Error; Excursion of Evidence.— Where all the evidence taken together, both the excluded and the admitted, will not support a judgment for the plaintiff, the exclusion of evidence offered by him is not prejudicial.</p> <p>2. Principal and Agent; Proof of Agency; Declarations. — Agency cannot be proven solely by the declarations of the agent.</p> <p>3. Same; Evidence of Agency. — Where it appears that the person giving the authority to one to buy for another had no authority to buy for the other or to authorize anyone else to do so, testimony that he had given the person authority to buy goods for the other was not admissible to show the agency of such a person.</p> <p>4. Same; Authority of Agent. — In order to hold principals liable for a purchase made by another as their agent it must appear that such other was their agent to make the particular purchase, and it was not sufficient to show that the other was their agent for any other purpose.</p>

Heard before Hon. Samuel B. Browne. Action by the Mobile Cooperage & Box Manufacturing Company against Richard P. Baer & Co. From a judgment for plaintiff, defendants appeal.

Heard before Hon. Albert E. Pace, Special Judge. Assumpsit by P. N. Hickman against R. E: Byrd. From a judgment for plaintiff defendant appeals.

<p> Action on Insurance Policy. </p> <p>1. Insurance; Life Insurance; Forfeiture; Failure to Pay Premium. — Unless the policy so provides, the failure to pay the premium does not forfeit the contract.</p> <p>2. Same. — Within the limitation of the statute, a condition that a life policy shall be forfeited for non payment of any premium is a condition subsequent, and non performance avoids tbe policy unless waived.</p> <p>3. Same. — A condition in a life policy providing a forfeiture for non payment of premium is for the benefit of the insurer, and strictly construed; a forfeiture will not be enforced unless such is the plain meaning of the contract.</p> <p>4. Same. — Where the policy provides that on default in any annual premium after the 3rd premium has been paid, the policy may be surrendered for a non participating paid up policy, providing the policy be returned to the insurer within six months after date of default, otherwise the policy shall cease, does not provide a forfeiture of the policy within six months from default; after default insured has under such provision six months in which to elect, to surrender the policy and get paid up insurance or to pay the premium, should he decide not to surrender the policy; on failure to elect the policy does not become forfeited for six months after default.</p>

<p> Assumpsit. </p> <p>Judgment; Default Judgment; Corporation; Recitals. — A judgment by default against a corporation must show the fact that proof was made to the court and that the court ascertained that the person on whom process was served was such an officer or agent of the corporation as by law was authorized to receive service of process for and on behalf of the corporation.</p>

Heard before Hon. L. D. Gardner. Bill by E. W. Stay against Sarah B. Tennille, administratrix of the estate of A. St. C. Tennille. deceased, to 'specifically enforce a contract. From a decree sustaining demurrer to the bill complainants appeal.

Hoard before Hon. C. O. Nesbith. Bill by E. G. Chandler as trustee in bankruptcy of Jacob Traub against said Traub and a certain insuranee company, to require said Trab- 'and- insurance company to pay over to the trustee in bankruptcy the cash surrender value of certain policies of life insurance payable to Traub or his estate, and by him transferred to his wife. A demurrer was sustained to the bill and complainant appeals.

<p> Bill for Bale of Lands for Division. </p> <p>1. Landlord and Tenant; Title of Landlord; Tenant Estopped to Deny. — The general rule is that a tenant entering into possession of land under a lease must surrender the possession to the landlord before he can assail or question the title under which he enters; the exception to this rule is that the tenant may show the terminatioá of the landlord’s title or that he has acquired the same since the creation of the tenancy, but this execption does not permit the tenant to assert an outstanding title which he may purchase or permit him to attorn to the person having an outstanding title hostile to that of the landlord.</p> <p>2. Same; Waiver of Surrender.- — The evidence in this ease stated and examined and held not to show a waiver of a surrender of possession by the landlord so as to permit the tenant to set up an outstanding title acquired by him hostile to the landlord.</p>

<p>Appeal from Clay County Court.</p> <p>Heard before Hon. W. J. Pearce.</p> <p>Bill by J. M. Leverett against E. York and others to have a deed declared void and to have a purchase-money lien declared upon the property conveyed. From a judgment overruling demurrers to the bill, respondents appeal.</p> <p>The material allegations of the bill are sufficiently stated in the opinion. The bill was filed in the Clay county court, and addressed to Hon. W. J. Pearce, Judge of said court. Clay county forms a part of the Northeastern chancery division, of which Hon. W. W. White-side is chancellor. The demurrers filed to the bill are as follows: “(1) It appears from said bill that it was improperly filed in this court. (2) For that it appears from said bill that it should have been filed in the county-court of Clay county. (3) For that it appears from said bill that it is. not addressed to Hon. W. W. Whiteside, chancellor of the Northeastern chancery division. (4) For that no facts are alleged in said bill showing that said Sam Wallace executed the deed described in the fourth paragraph of said bill with any intent to hinder, delay, or defraud his creditors. (5) For that it does not appear from said bill that the grantee in said deed had any knowledge of said intent on the part of Wallace, if he had the same, or that said deed was accepted by grantee with any knowledge of the grantor’s purpose, or any intent on the part of the grantee, that said deed should defraud any one.”</p> <p>The mere suspicion of the existence of fraud is not sufficient. — Smith v. Collins, 94 Ala. 394. The deed recites a valuable consideration and shifts the burden to the appellee to show fraud, and it must, therefore, be specially averred.— Howell v. Carden, 99 Ala. 100. The purchaser from an alleged fraudulent vendor is charged with the burden of negativing notice or knowledge of the financial condition or intent of his vendor. — Kellar v. Taylor, 90 Ala. 289.</p> <p>Whatever is sufficient to put a party on inquiry is sufficient to charge him with notice. — Manassas v. Dent, 89 Ala. 565; Foxworth v. Brotan Bros. 114 'Ala. 202; s. c. 120 Ala. 59; Kyle v. Ward, 81 Ala. 120; 21 A. & E. Ency of Law, 584; 23 Id. 494. The consideration must be adequate as well as valuable and his conveyance is voluntary in respect to the remainder above the purchase price. — Fairfield P. Co. v. Kentucky Clothing Co., 110 Ala. 536; 2 Brock 211; ,61 Fed. 588; 6 Wall. 290; 14 A. & E. Ency of Law, 292; -23 lb. 488; 513. Under the deed the purchaser was not an innocent purchaser. — Burch v. Garter, 44 Ala. 117; Smith v. Perry, 56 Ala. 269; Smith v. Burk, 21 Ala. 136.</p>

Heard before Hon. A. D. Sayre. Bill by the Guarantee Life Insurance Company against Frank N. Julian, Insurance Commissioner seeking to permanently restrain and enjoin said commissioner from revoking the license of tbe company to do business in Alabama. Decree for complainants respondent appeals.

Heard before Hon. A. H. Benners. Bill by D. B. Butler, as trustee, against L. Berger and others, to construe a deed and quiet title. From a decree overruling demurrers to the bill, respondents appeal.

<p>Appeal from Mobile Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Bill by Terry S. Kiernan against Gaines Coleman and others to enforce a vendor’s lien, to which respondent filed an answer and cross bill setting up fraud and misrepresentation on the part of the vendor. From a decree for complainant, respondents appeal.</p> <p>The right to- rescission or cancellation because of fraudulent misrepresentation must be established by clear and convincing proof. So also upon discovering falsity of the misrepresentation the party must act promptly to avail himself of the right of rescission. The mere fact, however, that appellant waited before suing for nearly two years and a half would not of itself preclude relief if the case was one calling for relief. — Pratt L. & I. Co. v. McLean, 103 Ala. 459; Orendorf v. Tollman, 90 Ala. 442; Haney v. Legg, 129 Ala. 626. Laches being defensive matter need not be negatived by the bill. — Pratt L. <& I. Co. v. McClain, supra. Where it does not appear in the face of the bill it must be made by plea or answer.' — Scruggs v. Decatur M. & Ij. Co., 86 Ala. 173. The allegation in the cross bill of fraud and misrepresentation were sufficiently averred as&pecific facts. — Orendorf v. Tollman, supra; Balter v. Maxio-ell, 99 Ala. 564.</p> <p>The allegation of fraud and misrepresentation comes too late. — Smith v. Robertson, 23 Ala. 312; Howie v. Birmingham L. Co., 95 Ala. 389.</p>

<p>Appeal from Selma City Court.</p> <p>Heard before Hon. J. W. Mabry.</p> <p>Bill by Lewis Johnson against Norman F. Stanfill and others to quiet title. Judgment for complainant and respondents appeal.</p> <p>Transactions between persons occupying fiduciary relations are presumptively invalid, and the burden is upon the person receiving the benefit to prove affirmatively good faith, full knowledge and independent consent without any proof of undue influence. — Noble o. Moses Bros., 81 Ala. 530; Harraway v. Harraway, 136 Ala. 501. And this principle is aplied with great rigor to gifts. — 2 Pom. Eq. Jur. sec. 957. On the question of the soundness of the grantor’s mind counsel cite. — ■ O’Daniel v. Rodiger,lQ> Ala. 428; S chief erlin v. Schifferlin, 127 Ala. 14; Whitney v. Twomby, 126 Mass. 145.</p> <p>The law presumes every man to be sane until the contrary is shown, and the burden is on the party alleging it. — Raiodon v. Rawdon, 28 Ala. 565; White v. Farley, 81 Ala. 563. It is unsoundness and not mere weakness of mind that avoids a contract. — Stubbs v. Houston, 33 Ala. 535; Kramer v. Weinert, 81 Ala. 416; S'chieff erlin v. Schief erlin, 127 Ala. 37; O’Donnel v. Rodiger, 76 Ala. 222; Taylor v. Kelly, 31 Ala. 962; Knox v. Knox, 95 Ala. 495; Poioell v. The State, 25 Ala. 21; Domincclc v. Randolph, 124 Ala. 564; Ford v. The State, 71 Ala. 392. As to the question of evidence of insanity counsel cite.— Parrish v. The State, 139 Ala. 42; Kimbrough’s Case, 100 Ala. 140; Harrison v. Harrison, 126 Ala. 326.</p>

Heard before Hon. A. D. Sayre. Bill by the Railroad Commission of Alabama against the Central of Georgia Railway Company to enforce an order of the commission adjudging the existence of discrimination in a course practised by the carrier and forbidding its continuance. From a decree for despondents complainants appeal. This case is founded upon section 17, General Acts 1907, p. 123.

Heard before Hon. Alfred H. Benners. Bill by Roy against Roy and others to remove the administration of an estate from the probate’ to the chance, ry court, and for a sale of decedent’s land for distribution. From a decree ordering a private sale, respondents appeal. The court erred in ordering the sale upon the procedure set forth in the record after the filing of the petition for sale.

<p> Bill for Specific Performance. </p> <p>1. Specific Performance; Demurrer; Grounds. — Where the bill does not show that the land for which a conveyance is sought is a part of a larger tract owned by defendant, it is not demurrable on the ground that specific performance would infringe defendant’s homestead right, either in the particular tract or in the right of selection from a larger tract, since it will not be assumed from such facts alone that it was a part of defendant’s homestead.</p> <p>2. Vendor and Purchaser; Options; Certainty; Assignability. — The option provided for the conveyance of land on the west bank of the river between normal low water line and the crest of a dam or dams of such height and at such locations on the river as the purchaser might desire to erect, as such line would meander along the wesc bank of the river and the north and south lines of such place; it provided further that the area of the tract referred to should be ascertained before the erection of a dam or dams was begun. The purchaser designated the height of his dam. and pursuant to the provisions of the option, a survey was made and the exact description and area of the tract agreed to be conveyed was ascertained. Held, that the subject matter of the contract was rendered certain to every intent so as to make it assignable.</p> <p>3. Specific Performance; Contracts Enforcible; Certainty. — A contract is not rendered too uncertain to warrant its specific performance by the mere tact that the contract reposed in the purchaser 'the right to determine the line of the tract by determining the height of the dam to be erected.</p> <p>4. Same; Pleading; Demurrer. — Where the bill averred that pursuant to the contract surveys were made and the exact description and area of the tract agreed to be sold ascertained, the bill was sufficient against demurrer, and contains sufficient averment to show that all uncertainty was removed.</p> <p>(Denson and Sayre, JJ., dissent.)</p>

<p>Appeal from Mobile Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Bill by John W. Black against the Sullivan Timber Co. et al for the appointment of a. receiver, etc. From a decree of dismissal and a decree taxing the costs, both parties appeal.</p> <p>The property was in the lawful custody of the trustees under the Florida statutes.— Blade v. Sullivan T. Go., 40 South. 669. The bill was insufficient to justify the appointment of a receiver, or an injunction to prevent the threatened act complained of. —-Bridgeport Dev. Go. v. Trisdi, 110 Ala. 286; Roman v. Wool folk, 98 Ala. 237; Etowah Min. Go. v. W. V. M. & M. Go., 106 Ala. 497; Warren & Go. v. Pitts, 114 Ala. 68; Briarfield I. W. v. Foster, 54 Ala. 633; Ft. Payóte F. Go. v. Ft. Payóte- G. cG I. Go., 96 Ala. 477; Hughes v. Hatchett, 55 Ala. 681; Raotdle v. Garter, 62 Ala. 95; Satterfield v. John, 53 Ala. 127. Under all the principles of equity Black is estopped from asserting any claim to salary, and if not estopped the dissolution of the corporation terminated the contract of employment without any breach on the part of the employer. — 36 S. E. 188; 91 N. Y. 174; 88 Fed. 680. Furthermore the affairs of the complainant were in the hands .of the court. The power of the board of trustees to sell and convey the land must be determined by an examination of the Florida statutes, which are contained in sections 2145, 2155 and 2157, of the Florida Code. Their language ' clearly contemplate a sale of the property by the trustees to pay the debt. There was a departure and this question was properly raised by a motion to dismiss. — Parle v. Lyde, 90 Ala. 246; Wiotston v. Mitchell, 93 Ala. 554; Galdnoell v. Kiotg, 76 Ala, 149; Peom v. Spence, 54 Ala. 35; Yanderford, v. Stovall, 117 Ala. 344. Notwithstanding the discretion of the chancellor as to taxing of the costs, the judgment taxing costs will be reviewed as there are other substantial questions presented. — Huovt v. Leoviot, 4 S. & P. 147; Raotdolph v. Rosser, 7 Port. 249; Alexander v. Alexaotder, 5 Ala. 517; Garner v. Pruitt, 32 A la. 294; Ex parte Robinson, 72 Ala. 391. Inasmuch as the record fails to reveal any equity demanding a-different judgment, the prevailing party is entitled to cost.- — 11 Cyc. 34; 11 Pick. 448; 5 Pick. 259; 5 Ency P. & P. 186; 70 N. W. 467; Gray v. Gray, 15 Ala. 786. The allowance of compensation to the receiver was erroneous. — Florida Statutes, supra; 27 Am. Rep. 743; 1 Tenn C’ahn. 472; 2 Id. 110; 11 Veasey Jr. 363; 15 Id. 583; 1 Pom. Eq. Rem. secs. 150-152; High on Receivers* sec. 795; 79 Pac. 700; 183 111. 467; 56 N. E. 169; 72 111. App. 395; 23 A. & E. Ency of Law 1106-7; Sec. 801, Code 1896.</p> <p>The court did not err in allowing the receiver credit for the debts of the corporation paid by him. — 46 Atl. 660; 91 111. App. 265; 23 A. & E. Ency. of Law, pp. 1064-1072, 1106; High on Receivers, sec. 798, 805-6. There was no error in allowing receiver compensation. — 75 N. E. 31; 105 U. S. 527; 113 U. S. 116; 69 N. E. 54; 133 U. S. 78; 151 U. S. 333; 23 A. & E. Ency of Law, 1106. The court may, in the exercise of its discretion, direct the costs and the compensation of the receiver to be paid of the funds under the control of the court. — Beckwith v. Garroll, 56 Ala. 12; Bryan n. Bryan, 28 Ala. 51.6; Randolph v. Rosser, 7 Port. 249; Kitchell v. Jackson, 71 Ala. 556; Faulkner v. Campbell Go., 74 Ala. 359; Allen v. Letois, 74 Ala. 379; Conner v. Armstrong, 91 Ala. 267; Thornton v. H. A. & B. R. R. Co., 94 Ala. 357; Wills Talley Co. v. Galloway, 139 Ala. 267. The equity of a bill is not tested by the denial of the material facts alleged even by sworn answer. — Werbon v. Kahn, 93 Ala. 201; Thorington v. City Council, 88 Ala. 548; Zellnicker v. Bingham, 74 Ala. 598; Watts v. Eufaula, Bank, 76 Ala. 474. The powers of the trustee were limited by and the execution thereof referable to the Florida statutes, section 2157 of which excludes and repels the idea of any power in them to sell the property of the trust estate, and extend the trust beyond three years from the dissolution of the corporation. — Dudley v. Witter, 46 Ala. 664; Price v. Methodist Conference, 42 Ala. 89. If they have the power it would have taken the united action of all five trustees to execute it. — Scruggs v. Driver, 31 Ala. 287; Tarver v. Haynes, 55 Ala. 503; Robinson v. Allison, 74 Ala. 254; Werbom v. Austm, 77 Ala. 384. A court of equity is the only forum wherein the beneficiary can be protected. — Huckabee v. Billingsley, 16 Ala. 414; Me Brier v. Hanker, 64 Ala. 50; Amberson v. Jolmson, 127 Ala. 490. Both the property and the trustees being in this state, the court has jurisdiction.- — 5 Ala. 523; 8 Ala. 680; 18 Ala. 784; 32 Ala. 314; 7 Paige 239; Thompson on Corporations, sec. 8011. There was no estoppel as to Black. — Buckley v. Anderson, 137 Ala. 325. Black was entitled to his salary as president. — Nelson v. Hubbard, 96 Ala. 238; Black v. Sullivan T. Co., 40 South. 669; 146 Pa. St. 478; 53 N. W. 291; 30 Pac. 1024; 25 W. Va. 36.</p>

Heard before Hon. A. H. Benners. Bill by T. L. Long, et al., citizens and tax payers of Walker county against, the Commissioners Court to enjoin the payment of claims for extra work by a contractor under a contract with the Commissioners Court, and to hold the parties to the original contract. From a decree dissolving the temporary injunction issued, complainants appeal.

Heard before Hon. W. W. Whiteside. Bill by Nettie Kate Bowdoin and another against Sarah Hays and others to set aside and annul the probate of a will and to contest the same. From a judgment for complainant, the defendant Sarah Hays appeals. The bill is filed under section 4298 and 4299, Code 1896. The ist, 2nd and 3rd grounds of demurrer should have been sustained. — Knight v. Golemcm, 117 Ala. 266.

<p> Ejectment. </p> <p>1. Evidence; Eewrsay. — Declarations of a former physician and neighbor of a person that such person is dead are hearsay and not admissible to prove death.</p> <p>2. Same; Pedigree Evidence. — It must appear that the person making the declaration is dead before the declaration of such person as a member of the family is admissible on the theory of pedigree evidence, that another member of the family is dead.</p> <p>3. Adverse Possession; Evidence. — Where there was evidence tending to show that defendant’s possession was adverse and other evidence tending to show that it was permissible, it was a circumstance to be considered by the jury in determining whether the land had been held adversely or permissively, to show a declaration by defendant’s husband in her presence that they (meaning defendant and husband) had no home.</p> <p>4. Ejectment; Evidence; Jury Question. — Where there is evidence of adveres possession of a tract of land, and also evidence that the uncleared land on the tract had been put to such uses as it was susceptible of in its then state, in the way of fire wood, rail timber, etc., the question of whether there had been possession of it adversely, was a question for the jury, and the court should not have directed a verdict for plaintiff.</p>

Heard before Hon. C. W. Ferguson. Ejectment by A. W. Hayes against Annie May Martin and others. From a judgment for defendants plaintiff appeals. As to the sufficiency of the evidence to identify the lands counsel cite. — • Rayen v. Martin, 144 Ala.; Coyne v. Wamor Southern, 137 Ala. 554; Canton v. McCord, 130 Ala. 321; 55 N. J. L. 137; 24 South. 552; 2 Devlin on Deeds, Sec. 1014. The burden was on the plaintiff to prove his title or possession.

Heard before Hon. S. L. Brewer. Ejectment by John Doe, on the demise of Cordelia Roe, against Richard Roe, with notice to Mary R. Goetchius and Ella Russell. There ivas judgment for plaintiff, and defendant appeals. The controversy was over a part of the N. % of section 28, township 16, range 5. The defendant disclaimed as to a part of said section which lay on one side a fence row running across the quarter section, and as to the other pleaded not guilty.

Heard before Hon. 0. W. Ferguson. Action by Mattie B. Hannon against E. M. Vadeboncoeur in the nature of ejectment. Prom a judgment for plaintiff, defendant appeals. The court erred in sustaing the demurrers to the 4th plea. — Page v. Young-blood, 69 Ala. 296; Lassiter v. Lee, 68 Ala. 287; Jones v. Randle, 68 Ala. 258; Long v. Boast, 44 S'outh. 955. The court erred in excluding the deed from the State Auditor. — Trotter v. Moog, 150 Ala. 460.

Heard, before Hon. A. A. Evans. Ejectment by R. M. Poster and others, executors-, against George Carlisle and others, for a 12-foot strip of land. Judgment for defendants, and plaintiff’s appeal Most of the facts appear in the opinion.

Heard before Hon. A. H. Alston. Ejectment by Thomas B. Dennis and others against Houston Price and others. Prom a judgment for plaintiff defendants appeal. Under the facts in this case; the appellant showed an adverse holding.-— Sec. 1813, Code 1896; Case v. Edgeworth, 87 Ala. 203;. Dillingham v. Brown, 38 Ala. 311; Goodlett v; Smithson, 5 Port., 245.

Appear from Birmingham City Court. Heard before Hon. C. W. Ferguson. Ejectment by the Tennessee Coal, Iron & Railway Company against Mrs. Mary Wise, and others. Default judgment was rendered against the defendant, which on motion was set aside and a writ of ouster issued against the plaintiff. Plaintiffs move to set aside the order vacating the judgment and issuing the writ.

Heard before Hon. A. O. Lane. Unlawful detainer by H. D. Cooper, for tbe u.se of A. E. Leisbman, against A. A. Cambill. From a judgment for plaintiff, defendant appeals.

<p> Forcible Entry cmd Detainer. </p> <p>1. Estoppel; Position Assumed. — Where one with knowledge of the facts assumes a particular position in judicial proceedings such one is estopped to assume a position inconsistent therewith to the prejudice of the adverse party; so, where a defendant, in order to carry a case of forcible entry and detainer from the justice to the circuit court under a section 4283, Code 1907, makes an affidavit that he entered the premises peaceably and not under claim of any agreement, contract or understanding with the plaitiff, such defendant is estopped to introduce evidence in contradiction of the affidavit.</p> <p>2. Landlord and Tenant; Title of Landlord; Estoppel of Tenant.— A tenant cannot make a valid attornment to another, nor by mere acquiesence authorize another to violate the possession which he holds for the landlord, the duty being upon the tenant to bear fealty to his landlord.</p> <p>3. Forcible Entry and Detainer; Persons Entitled to Sue; Right of Tenant. — Where the tenant’s consent to the entry and removal of the fence was in violation of the duty the tenant owed to the landlord, the tenant was entitled to bring forcible entry and detainer for the possession of the lands so occupied although the entry and removal of the fence was done in a peaceful manner.</p> <p>4. Same; Title of Defendant. — Where it appears that defendant’s entry was acquiesced in by the plaintiff, thus constituting it an entry by agreemnt, the defendant cannot introduce evidence to show title in himself in an action in forcible entry and detainer. (Section 4285, Code 1897.)</p> <p>5. Same; Evidence; Relevancy. — The character of the house kept by plaintiff is irrelevant as evidence in an action for forcible entry and detainer.</p> <p>6. Attorney and Client; Authority to Bring Suit; Mode of Questioning. — The authority of an attorney to bring suit is presumed, he being an officer of the court; if the authority is questioned, the matter should be determined by motion, and addressed to and decided by the presiding judge, so as not to be mingled with the 'merits of the controversy at the hearing.</p>

<p> Detinue. </p> <p>Detinue; Judgment; Sufficiency. — A judgment entry in detinue which fails to assess separately each article sued for, or which fans to assess the value of the property, or its alternate value, is not in compliance with section 3781, Code 1907, and is insufficient.</p>

I-Ieard. before Hon. W. J. Pearce. Detinue by I. D. Nolan against James E. Crabtree and others. On appeal from a jury trial in the justice court to the county court taken by the defendant, the plaintiffs move to dismiss because defendants fail to give bond as required by the statute, on an appeal to a jury trial in the justice court. The court dismissed the appeal from which judgment defendant brings this appeal.

Heard before Hon. S, L. Brewer. Action of detinue by Joe Williams against R. W. Blair, for the recovery of a horse. Begun in the justice court and carried by appeal to the circuit court. From a judgment for plaintiff defendant appeals. Having agreed to plead in short by consent in the justice court the appellee cannot complain of its agreement in the circuit court. — Strauss v. Mertief, 64 Ala. 311; Gayle v. Randle, 4 Port. 233.

Heard before Hon. A. A. Coleman. Detinue by Everett Shepherd against Joseph Richards, doing business as the Richards Iron Works, for certain iron railings. Judgment for plaintiff and defendant appeals. Under the evidence in this case, plaintiff was not entitled to recover in detinue. — Reese v. Harris, 27 Ala. 301; Seals v. Edmundon, 73 Ala. 295..

<p>Appeal from Bullock Circuit Court.</p> <p>Heard before Hon. A. A. Evans-.</p>

<p>Appeal from Morgan Chancery Court.</p> <p>Heard before Hon. W. H. Simpson.</p>

<p>Appeal from Morgan Chancery Court.</p> <p>Heard before Hon. W. H. Simpson.</p>

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