Volume 16 — Alabama Appellate Reports

P. Almon, Judge. Fayette Miller was convicted of public drunkenness, and appeals. The following charges were refused' to defendant: (1) “In the application of circumstantial evidence to the determination of a case the utmost caution should be used.

<p>Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.</p> <p>Grady Johnson' was convicted of bastardy, and he appeals.</p>

Circuit Court, Greene County; Bernard Harwood, Judge. Action by Phillip B. Minor against Thomas W. Coleman. Judgment for defendant, and plaintiff appeals. The first count of the complaint is that: Plaintiff claims of defendant * * * damages for that, heretofore, to wit, * * * defendant did willfully and intentionally shoot and kill one pointer dog, the property of plaintiff, of the value of, to wit, $150.

<p>Jury <&wkey;31(5) — Bight to Trial by Jury — Statute — Constitutionality.</p> <p>Acts 1915, p. 940, requiring defendant indicted for misdemeanor to file with the clerk of the court a written demand for trial by jury, is not violative of Const. 1901, § 6, guaranteeing in all criminal prosecutions by indictment that accused shall have a speedy trial by an impartial jury of the county or district in which the offense is committed, merely because it requires the demand to be in writing.</p> <p>[Ed. Note. — For other cabes, see Jury, Cent. Dig. § 208.]</p>

W. Haralson, Judge. La Fayette Jones was convicted of murder in the second degree, and he appeals. The facts sufficiently appear. The following charges were refused to defendant: (1) If there is a reasonable probability of defendant’s innocence, this may be a just foundation for a reasonable doubt of his guilt, and therefore for his acquittal.

Fort, Judge. Jacob L. Addington was convicted of securing the signature to a mortgage by falsd pretenses, and he appeals. The second count of the indictment sufficiently appears, but in the indictment the mortgage alleged to have been obtained under false pretenses is set out in full.

<p>Appeal from Criminal Court, Jefferson County; II. B. Heflin, Judge.</p> <p>Frank Moragne, alias Frank Moriner, was convicted of unlawfully transporting intoxi-. eating liquors over the public highways of the state, and he appeals.</p>

Wert, Judge. Dock McDaniel was convicted of violating the prohibition law, and he appeals. The motion to strike, and the plea in abatement attacks the indictment returned on January 8, 1916, by the grand jury authorized September 20, 1915, on the ground that by operation of law the term of the court ended December 31, 1915, and that the court could not, by an order, adjourn this grand jury beyond the limit set by the law.

Detinue by George Stuart, Jr., against J. I-I. Natzke, for a cow. Judgment for plaintiff, and defendant appeals. The agreed statement of facts are as follows: Defendant Natzke had dealt with Golding before, buying from him. The cow in question was traded by Golding to Natzke for a cord of wood, a heifer, and a hog, worth $45, collectively. Natzke had no knowledge that Golding, _ who had the cow with him, was not the owner of the cow.

<p>Appeal from Law and Equity Court, Morgan County; Thomas W. Wert, Judge.</p> <p>E. M. Brown was convicted of selling liq-nor in violation of law, and he appeals.</p>

<p>Appeal from Circuit Court, Barbour County; Judge S. Williams, Judge.</p> <p>John Ben Holston was convicted on a charge of bastardy, and he appeals.</p>

P. Almon, Judge. Will Killen was convicted of murder, and appeals. The person charged to have been killed was one Fred Hill, and the defense was self-defense. The following charges were given for the state: (B) I charge you that sentiment, sympathy, and pity have no place in the jury box.

B. Foster, Judge. Mitchell Wells was indicted for murder in the second degree, convicted of manslaughter in the.first degree, and he appeals.

<p>1. Homicide <&wkey;30C>(14) — Instructions—Self-. Defense.</p> <p>The requested charge that defendant would have the right to set up self-defense if the jury believe he bona fide withdrew from the difficulty, though he provoked 4t, ignores the burden resting on him, essential to his right to claim self-defense, to show that he was in impending peril of life or limb when he fired.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 629.]</p> <p>2. Homicide <&wkey;300(7) — Instructions—Self-Defense.</p> <p>Requested charge that defendant would have the right to set up self-defense if the jury believe he bona fide withdrew from the difficulty, though he provoked it. assumes that after he withdrew the person at whom he fired pursued him, or renewed the difficulty.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 622.)</p> <p>3. Homicide <&wkey;300(5) — Instructions—Self-Defense.</p> <p>Requested charge to acquit if the jury are satisfied that defendant was free from fault in bringing on the diiliculty, and bona fide re-' treated, and the assault made by G., or the threatened assault made by him, if perpetrated, was likely to produce death or great bodily harm, has a tendency to mislead to the conclusion that the court entertains the view that 6. assaulted or threatened to assault defendant.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 619.]</p> <p>4. Homicide <&wkey;300(14) — Instructions—Self-Defense.</p> <p>A requested charge predicating right of self-defense on a threatened assault made by G„ leaving out of consideration the question of presence of an overt act or attempt to carry into effect such “threatened assault,” thereby inducing pending peril, real or apparent, to defendant’s life or limb, is objectionable.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 629.]</p> <p>5. Criminal Law &wkey;>1056(l) — Review—Exception.</p> <p>Exception to the oral charge is necessary for review thereof.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2008, 2670.]</p> <p>6. Criminal Law <&wkey;1040 — Review—Objection Below.</p> <p>Objection below to verdict or action of the court thereon is necessary for review.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2649.]</p>

<p>1. Criminal Law <&wkey;567 — Existence of Corporation — Proof.</p> <p>Burden of proving existence of the corporation mentioned in the indictment, the W. Company, cast on the state by sworn plea under Code 1907, § 6S76, was not sustained, it appearing there was a mere attempt, ineffective because of noneompliance with the statute relative to change of names of corporations, to give such name to an existing corporation] this not having the effect of dissolving the existing corporation, because of noncompliance with the statute for dissolution, and therefore not having the effect of creating a de facto corporation by the name of W. Company, though the business was conducted under that name.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1276.]</p> <p>2. Embezzlement <&wkey;35 — Indictment — Variance.</p> <p>Variance between the indictment and proof as to name of the corporation, property of which was charged to have been embezzled, is fatal.</p> <p>[Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 55-59.]</p>

I-I. Alston, Judge. Andy Moss was convicted of murder in tile second degree, and he appeals. The defendant in this case was tried in the criminal court of Jefferson county under an indictment charging him with murder in the first degree, in that he had killed Barton Haggerty by shooting him with a pistol. On the trial of the cause the defendant pleaded former jeopardy, which defense he set up in 18 different pleas.

<p>1. Criminal Law <&wkey;162 — Former Jeopardy —Statute.</p> <p>Defendant’s conviction, in the recorder’s or mayor’s court of a city, ,of violating the prohibition law, was not a bar to his prosecution for the same offense in the state court; Code 1907, § 1222, making a judgment in' the recorder’s court a bar to a prosecution in the state court for the same offense, having been amended by Acts 1915, p. 724, to eliminate such provision.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 285.]</p> <p>2. Criminal Law &wkey;>363 — Evidence — Res Gestee.</p> <p>In prosecution for violation of the prohibition law, testimony .of an officer that, when he and others were searching defendant’s premises, a man was in defendant’s house, who had a full quart of gin in his pocket, was admissible as part of the res gestae.</p> <p>[E'd. Note. — For - other cases, see Criminal Law, Cent. Dig. § 804.]</p> <p>3. Criminal Law <&wkey;394 — Evidence Illegally Obtained.</p> <p>Relevant evidence, however illegally obtained, is admissible to fix the guilt of a person accused of crime, so that, in a prosecution for violation of the prohibition laws, testimonj' of an officer in regard to the finding of 13 quarts of whisky and gin in defendant’s house was not inadmissible because the warrant was illegally executed.</p> <p>[Ed. Note. — For 'other ' cases, see Criminal Law, Cent. Dig. §§ 875, 876.]</p> <p>4. Criminal Law <&wkey;713 — Trial—Argument and Conduct of Counsel.</p> <p>Undignified argument and conduct and anything bordering upon familiarity with the jury on the part of counsel is reprehensible and unprofessional, and trial courts are charged with the duty not to permit counsel to indulge in such character of argument and conduct.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1663, 1678.]</p> <p>5. Criminal Law &wkey;>741(l) — Trial—General Charge.</p> <p>The general charge for defendant is properly refused, if there is any evidence tending to show or affording an inference of guilt.'</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1705, 1713, 1727, 1728.]</p> <p>6. Criminal Law @=^913(1) — New Trial.</p> <p>Where, on defendant’s motion for new trial, no matter was presented which was not dealt with on the trial, there having been ample evidence to support the verdict and judgment of conviction, motion for new trial was properly overruled.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2137-2139', 2141, 2142, 2145.]</p>

E. Gamble, Judge. Action by the White Trunk & Bag Company against George L. Brantley and M. E. Brantley, individually, and as copartners doing business under the firm name of Brantley Mercantile Company, in assumpsit. Judgment for defendants, and plaintiff appeals. M. E. Brantley set up the fact that he was not a member of the firm and has never been a member' of. the firm of the Brantley Mercantile Company at any time.

<p>Appeal from Circuit Court, Geneva County; I-I. A. Pearce, Judge.</p> <p>Coot and Harvey Grantham were convicted of the larceny of a sawmill or gin belt, and they appeal.</p> <p>Witness Bullock testified that he lost a gin belt, and that about a week afterwards found it at the gin belonging to defendants; that he remembered its number and recognized it by number, and asked Coot Grantham where the balance of the belt was, and he replied that it was over in a barrel, and went and got it and brought it to witness. The witness Ross testified that he remembered when it was said that Mr. Bullock had lost a belt, and that two nights before that he saw defendants about sundown in a buggy, about six miles from town, and that Will Smith was with them. The witness Bob Ross testified on the direct examination that at the time they met defendants and Will Smith he was driving the car, and that his father was anxious and uneasy about his driving, and went with him to look after him. Defendants, on cross-examination, asked witness the following question:</p> <p>“At that time your father, J. T. Ross, was uneasy about- your driving, and was giving close attention to your driving, wasn’t he?”</p> <p>The witness Rogers was asked by defendants:</p> <p>“What was he doing there that day, and do you know what he said he was doing there that, day?” (referring to Coot Grantham’s presence in Dothan at a certain time).</p>

<p>Appeal from Criminal Court, Jefferson County; A. H. Alston, Judge.</p> <p>Dave Coplon was convicted of buying, receiving, concealing, or aiding in concealing stolen property, and he appeals.</p>

<p>1. Corporations <&wkey;2S9 — De Jure Officers —Creation of Office by Directors.</p> <p>Directors of a corporation having only the pow.ers given by by-laws, which authorize it only to fill the offices created by by-law and to appoint other employes, cannot create an office; and so one appointed by them as assistant cashier is not a de jure officer, there being no such office.</p> <p>[Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 1240-1245.]</p> <p>2. Corporations <&wkey;2S9 — De Pacto Officers.</p> <p>There cannot be a de facto officer of a corporation, there being no corresponding office in existence.</p> <p>[Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 1240-1245.]</p> <p>3. Corporations <&wkey;289 — De Pacto Offices.</p> <p>No de facto office results from any attempt of directors of a corporation without authority to create an office.</p> <p>[Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 1240-1245.]</p> <p>4. Embezzlement <&wkey;35 — Indictment—Variance.</p> <p>Indictment under Code 1907, § 6830, declaring the offense of embezzlement of funds of a bank by an officer, - agent, clerk, or .servant thereof, charging defendant as an officer, when he was merely an employé, he cannot be convicted thereunder.</p> <p>[Ed. Note. — Por other cases, see Embezzlement, Cent. Dig. §§ 55-59.]</p> <p>5. Embezzlement <&wkey;2 — Statute—Repeal.</p> <p>Code 1907, § 6830, declaring the offense of embezzlement of funds of a bank by an officer, agent, clerk, or servant thereof, is not repealed by Acts 1911, pp. 86, 87, §§ 45, 46, declaring punishment for various offenses by individual banker or officer, director, agent, or employé of a 'bank; each statute being directed against a distinct, separate offense, entirely different in character, and there being ample field for operation of both.</p> <p>[Ed. Note. — Por other cases, see Embezzlement, Cent. Dig. § 2.]</p>

W. Pearson, Judge. Action by Noah Means against Abraham Bros. Judgment for plaintiff, and defendant appeals. This action was begun in the lower court and as originally filed contained two counts: one for deceit and one for a breach of warranty in the sale of a mule.

<p>1. Conspiracy &wkey;>25 — Wititecapping — Elements.</p> <p>While the offense defined by Code 1907, § 7388, includes assault and battery, there must also be present a conspiracy between two or more persons to inflict the abuse with intent to force a confession or obtain the assaulted party’s promise to leave the vicinity.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 35.]</p> <p>2. Conspiracy &wkey;>44V2 — Lynching or Wititecapping — Intent.</p> <p>Under Code 1907, § 7388, prohibiting abuse, etc., of any person to force a confession or consent to leave the neighborhood, etc., the intent may be inferred from the facts attending the assault.</p> <p>3. Conspiracy &wkey;>45 — Lynching or White-capping — Admissibility op Evidence.</p> <p>In prosecution under Code 1907, § 7388, prohibiting abuse, etc., of any person to force a confession or secure Ms promise to leave tlie vicinity, accused may show that the assaulted party actually committed the offense for which lie was whipped as tending to show that the assault was intended as a punishment, and not to force a confession.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 100-104.]</p> <p>4. Criminal Law &wkey;31 — Inconsistent Offenses.</p> <p>Accused in a criminal prosecution may set up inconsistent defenses.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 35, 36, 50.]</p> <p>5. Criminal Law <&wkey;753(2) — Instructions— Lynching.</p> <p>In a prosecution under Code 1007, § 7388, proMbiting abuse of any person with intent to force a confession or consent to his leaving the vicinity, requested charges requiring an acquittal were properly refused where accused was at least guilty of assault and battery.</p> <p>[Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. §§ 1727, 1729.]</p>

E. Gamble, Judge. Suit by Sallie Belle Kenedy against the T. R. Miller Mill Company. To review a default judgment, defendant brought certiorari. From a judgment quashing the default judgment, plaintiff appeals. Sallie Belle Kenedy brought suit against T. R. Miller Mill Company, a corporation, in the justice court of W. B. Northcutt, a justice of the peace.

Action by John H. McEvoy against the Mobile Light & Railroad Company for damages for injuries to his automobile and to his person. Judgment for plaintiff, and defendant appeals.

M. Miller, Judge. R. C. Smith was convicted of manslaughter in the first degree, and he appeals. The person alleged to have been killed was Riley B. Stone, and the instrument alleged was a pistol.

B. Foster, Judge. Pink Jordan was convicted of perjury, and he appeals. The perjury is alleged to have occurred in the trial of State v. Mitchell Wells, for killing one B. Sager, and the perjury alleged is that witness falsely swore on that trial; that B. Sager drew a nickel-plated weapon, a pistol, and pointed It at Wells just prior to the shooting of Sager by Wells. The other facts sufficiently appear. ■

A. Pearce, Judge. Ammie Lee was convicted of manslaughter, and lie appeals. The defendant was indicted and tried in the court below upon a charge of murder in the first degree, and was convicted of manslaughter, and from the judgment of conviction he appeals. Upon the trial there were certain exceptions reserved to the rulings of the court on the evidence. The facts sufficient to a decision on these questions appear in the opinion.

Browne, Judge. Action by A. J. Paterson against Wm. D. Bridges for rent. Judgment for defendant on the pleading, and plaintiff takes nonsuit, with bill of exceptions, and appeals. The action was upon rent notes, and was begun July 7, 1915, and declared on notes due in February, March, April, May, June, and July, 1915. Defendant interposed the following pleas: (1) In short, by consent, the general issue.

<p>1. Homicide <&wkey;118(l) — Defenses—Self-Defense — Duty to' Retreat.</p> <p>Where defendant and deceased were at the time of the homicide guests at the house of another, in so far as the law of self-defense. is concerned, they were on equal footing, and if the deceased assaulted the defendant, and thus endangered his life, it was defendant’s duty to retreat if he could do so with safety, and thus avoid taking the life of his assailant, although he was free from fault in bringing about the condition that imperiled his life or limb.</p> <p>[Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 168.]</p> <p>2. Homicide <&wkey;30S(5) — Trial—Instructions.</p> <p>AVhere an indictment was for murder in the second degree, there was no necessity for the court to charge murder in the first degree; hut it was not improper to do so, as an incident to stating the elements of murder in the second degree.</p> <p>[E’d. Note. — For other cases, see Homicide, Cent. Dig. § 646.]</p> <p>3. Homicide <&wkey;340(4) — Review—Harmless Error.</p> <p>AVhere the conviction was for murder in the second degree, the refusal of .charges on murder •in the'first degree was not prejudicial error.</p> <p>[Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 720.] .</p> <p>4. Homicide <&wkey;309(6) — Trial—Instructions.</p> <p>AYhere the evidence shows that the defendant intentionally shot the deceased and killed him, the refusal of charges on the elements of manslaughter in the second degree was not error.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 655.]</p> <p>5. Homicide <&wkey;146 — Question foe Juey — Malice.</p> <p>The use of a deadly weapon in committing a homicide authorizes an inference to be drawn by the jury that the element of malice was present.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 265-271.]</p> <p>6. Homicide <@=>146 — Question foe Juey — Malice.</p> <p>Where it is shown that a homicide was accomplished by the intentional use of a deadly weapon, and the evidence necessarily relied on to sustain the charge has no tendency to rebut the presumption, the presumption of law is that the killing was malicious.</p> <p>[Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 265-271.]</p> <p>7. Witnesses <&wkey;344(2) — Impeachmeni^Specific Delinquencies.</p> <p>It is not permissible to show that the witness, before her marriage to deceased, had given birth to a child, as specific delinquencies cannot be shown for the purpose of impeaching a witness.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1125.]</p> <p>S. Criminal Law <©=868(3) — Evidence—Admissibility — Res Gestae.</p> <p>An exclamation of defendant’s wife, if coincident with the firing of the shot that caused the death of the deceased, and if it was produced by and instinctive upon the occurrence, rather than a retrospective narrative, although she was not immediately present, was of the res gestae, and was properly admitted.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 821.]</p> <p>9. Witnesses <&wkey;274(l) — Examination — Character Witness.</p> <p>The question asked a character witness, on , cross-examination predicated on what some of ¡the evidence for the state tended to show had I occurred at the time of the homicide, as to the 'use of abusive language in the presence of deceased’s wife, was improper.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 965.]</p> <p>10. Criminal Law <&wkey;117i0-%(3) — Appeal and Error — Harmless Eeeoe.</p> <p>As such question was not answered, the overruling of the Objection was without injury.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3131.]</p> <p>11. Witnesses <&wkey;344(l) — Impeachment in Other Cases.</p> <p>Objections to the questions asked a witness with reference to his impeachment as a witness in other cases should have been sustained.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1125.]</p> <p>12. Criminal Law <&wkey;1172(2) — Appeal and Error — Reversible Error.</p> <p>Under Code 1907, § 5362, providing that the court may state to the jury the law of the case, and may also state the evidence where same is disputed, but shall not charge upon the effect of the testimony, unless required to do so by one of the parties, if the evidence is in dispute, or affords conflicting inferences, it is reversible error to charge on the effect of the evidence in the oral charge.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig.' § 3155.]</p> <p>'13. Criminal Law <&wkey;763, 764(23) — Trial — Instructions.</p> <p>An instruction that “I charge you, then, that if you believe from the evidence, beyond a reasonable doubt, that this defendant used the language that was testified to that he did use, speaking with reference to the dogs and those people — it is unnecessary to repeat the epithet that was used, the vulgarity that was used, you gentlemen remember it — I charge you, then, and it was done in the presence of the wife of the deceased, as being used in the presence of his wife, and if that produced the difficulty, I charge you that this defendant was at fault, and then the protection of self-defense falls,” was violative of Code 1907, § 5362 and invasive of the province of the jury.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1731.]</p> <p>14. Criminal Law .<&wkey;763, 764(23) — Trial-Instructions.</p> <p>An instruction that “another element that goes to make up self-defense need not be considered, because, if he [defendant] was at fault in bringing on the difficulty, by the language that he used, and used in the presence of the wife of the deceased, the deceased was not at fault in bringing on the difficulty by using it,” was violative of Code 1907, § 5362, and invasive of the province of the jury.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1731.]</p> <p>15. Criminal Law <&wkey;763, 764(23) — Trial-Instructions.</p> <p>An instruction that “I charge you that if, from the evidence, you believe beyond a reasonable doubt that he (defendant) took the pistol, that he says was a pistol of his father-in-law, that he had cleaned up, and he carried that pistol out there with the purpose of using it, should it become necessary for him to use it in defense of himself, and he did use it in compliance with the preconceived purpose of using it, should it become necessary, he would be guilty,” was an invasion of the province of the jury.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1731.]</p> <p>16. Criminal Law <&wkey;763, 764(23) — Trial-Instructions.</p> <p>An instruction that, if “this rock was thrown by the deceased, as testified to by this defendant, and that it was afterwards that he had used in the presence of the wife, in response to the words it was testified he used, when the deceased told him he was tired of it, and then fired upon him, I charge you that he would be guilty, because he was not free from fault in bringing on the difficulty,” was an invasion of the province of the jury.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1731.]</p> <p>17. Criminal Law <&wkey;763, 764(23) — Trial-Instructions.</p> <p>An instruction that, “if deceased threw the rock at him, and the rock missed him, and he was standing there unarmed, having thrown the rock, and this man was standing, this defendant was standing, with the pistol in his hand, and he fired upon him, then he would be guilty, would be no self-defense in that,” was an invasion of the province of the jury.</p> <p>[Ed.' Note. — For other cases, see Criminal Law, Cent. Dig. § 1731.]</p> <p>18. Criminal Law <&wkey;763, 764(23) — Trial-Instructions.</p> <p>In a homicide case, an instruction, “Now, I charge you that if, from this evidence, you believe beyond a reasonable doubt that the rock was thrown, and even though * * * without his [defendant] having made the least removal, and then he fired upon him [deceased] when he had him in his power, he would be guilty,” was violative of Code 1907, § 5362, and invasive of the province of the jury.</p> <p>[E’d. Note. — For other cases, see Criminal Law, Cent. Dig. § 1731.]</p> <p>19. Homicide i&wkey;300(14) — Trial — Instructions.</p> <p>Such instructions also ignored defendant’s right, if the surrounding circumstances at the time of the homicide were such as to impress a reasonable man that'the defendant was in imminent danger of losing his life or suffering grievous harm, and he in fact honestly so believed, to defend himself against such peril.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 629.]</p>

E. Gamble, Judge. Aubrey Rogers was indicted for murder in the first degree, convicted of manslaughter in the first degree, and he appeals. It is alleged in the indictment that defendant killed Will Rogers by shooting him with a gun. The facts sufficiently appear. The following charges were refused to defendant: (Al) Affirmative charge. (E) If you believe the evidence, defendant has proven a good character for truth.

<p>1. CrIiminal Law &wkey;730(8) — Remarks oe Solicitor — Cure by Court’s Admonition.</p> <p>Improper statement of the solicitor to the court, in the jury’s presence, on request of defendant, a Greek, for an interpreter, that it was his experience with these Greeks and their interpreters, that they fix up the evidence to suit themselves, etc., was not rendered harmless by the court’s admonition to disregard it; the prosecution involving the intent of defendant.</p> <p>[Ed. Note — For other cases, see Criminal Law, Cent. Dig. § 1693.]</p> <p>2. Criminal Law <&wkey;1044 — Appeal—Matters Available — Remarks of Solicitor.</p> <p>Improper remark of the solicitor is not available on the main appeal, but only on motion for new trial; the court having ruled in favor of defendant on objection thereto.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2672, 2674, 2675.]</p>

<p>1. Criminal Law <&wkey;304(17) — Judicial Notice — Official Regulations.</p> <p>An indictment charging that defendant, own-, ing or having in charge cattle infected with or exposed to an infection, and having been notified so to do by an officer or inspector commissioned by the live stock sanitary board, did fail to dip such cattle'as designated by such officer, cannot be sustained on the theory that the alleged acts were a violation of rules and regulations of the state live stock sanitary hoard, since courts cannot take judicial notice of the proceedings of the board, or of its rules and regulations.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 711, 2951%.]</p> <p>2. Constitutional Law <&wkey;63(l) — Legislature — Delegation of Power.</p> <p>The Legislature may confer authority on governmental agencies to make rules and regulations the violation of which will support a criminal prosecution.</p> <p>[Ed. Note. — For other cases, sea Constitutional Law, Cent. Dig. §§ 108, 111, 112, 114.] ,</p> <p>3. Jury <&wkey;25(6) — Deprivation of Right-Statute.</p> <p>A statute which deprives the defendants of the constitutional right of trial by jury upon failure to make demand therefor in writing within a specified time will be strictly construed agaiust the state, and liberally in favor of accused.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 159-164, 170.]</p> <p>4. .Turt <&wkey;25(G) — Trial by Jury — Time for Demand.</p> <p>Where defendant was not arrested or taken into custody after the indictment, liis written demand for trial by jury, filed when the' case was first called for trial, preserved his right to trial by jury, under Acts 1915, p. 940, § 2.</p> <p>[Ed. Note. — For oilier eases, see Jury, Cent. Dig. §§ 159-164, 170.]</p>

<p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 712, 2951%.]</p> <p>Appeal from Circuit .Court, Elmore County ; Leon McCord, Judge.</p> <p>W. A. Powell was convicted of an offense, and he appeals.</p>

<p>Appeal from Probate Court, Washington County; Wallace P. Pruitt, Judge.</p> <p>Habeas corpus -by -Ralph Johnson against the State. From order denying discharge, petitioner appeals.</p>

<p>1. Bills and Notes &wkey;>134 — Construction— Assignment of Security.</p> <p>Where an account was assigned as secui’ity for present and future advances and separate notes given for the advances, each referring to the assignment, and with a copy thereof attached, each note and the assignment would be construed together.</p> <p>[Ed. Note. — For other -cases, see Bills and Notes, Cent. Dig. §§ 325-329%.]</p> <p>2. Pledges <&wkey;44 — Payment of Debt — •Effect.</p> <p>Where collateral was pledged to secure notes, the payment of the notes l-eleased the collateral, and pledgor was- at liberty to repledgo it.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 103-107.]</p> <p>3. Frauds, Statute op <&wkey;119(l) — Purpose.</p> <p>The purpose of the statute of frauds is to prevent fraud and perjury.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 113, 265-267.]</p> <p>4. Frauds, .Statute of &wkey;>118(l) — Sufficiency of Writing — Separate Writing.</p> <p>■ Where a contract may be gathered from writings, executed in the same transaction, but not contemporaneously, the writings may be construed together to prevent the contract being invalidated by the statute of frauds.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 262.]</p> <p>5. Frauds, Statute of &wkey;>HS(2) — Sufficiency of Writings — Loan of Money.</p> <p>Where copies of an assignment securing present and future advances were attached to notes given for such advances and the notes themselves referred to the assignment, the notes and assignment, construed together, held to comply with the statute of frauds.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 263.]</p> <p>6. Garnishment &wkey;C 08 — Property Subject to Assignment by Debtor.</p> <p>Where the debtor has assigned an account, a garnisheeing creditor cannot subject it to payment of his debt until the assignee’s debt has been fully paid, since the garnisheeing creditor has no greater rights against the assignee than defendant debtor.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §? 220-226.]</p> <p>7. Garnishment <&wkey;51 — Action — Spditting Causes of Action.-</p> <p>The rule ag-ainst splitting causes of action applies only where the holder sues more than once on a single cause, or, without defendant’s consent, assigns part only of such cause of action, and is inapplicable to the garnishment of an account previously assigned by defendant debtor.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 74, 97-101.]</p>

<p>1. Landlord and Tenant <&wkey;54 — Rights of Action Against Third Parties.</p> <p>If the lessee of a warehouse sublet it to a third party, a warehousing account charged to a mei-ehant was the property of the sublessee, and the lessee could not recover from the mei’chant_ the amount which it had received by crediting the account of the sublessee.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 126, 127.]</p> <p>2. Principal and Agent <&wkey;105(10) — Collection of Debts Due Principal — Warehouse Accounts.</p> <p>If the lessee merely constituted the third party its agent, he had no right to accept goods from the mex’ehant in payment of the account, and the lessee could i*eeover the amount whicli it had received through such transaction.</p> <p>[Ed. Noto. — For other cases, see Principal and Agent, Cent. Dig. § 306.]</p>

<p>Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.</p> <p>Will Cranford was indicted and tried for an assault with intent to murder, was convicted of assault and battery, and fined $500, and from the judgment of conviction, he appeals.</p>

<p>Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.</p> <p>Suit by the State against Junius J. Pearce. Judgment for defendant, .and the State appeals.</p>

<p>1. Licenses <&wkey;32(2) — License Taxes — Remedies.</p> <p>Under municipal ordinance requiring payment of license tax by cotton seed buyers and providing- penalty for failure to secure a license, the penal provision is merely cumulative, and the municipality can, in assumpsit, recover the amount of the tax.</p> <p>[Ed. Note. — For other cases, see Licenses, Cent. Dig; § 66.]</p> <p>2. Appeal and Error <&wkey;17o — Scope of Review.</p> <p>Where the’bill of exceptions recited that a plea setting up a prior judgment should _ be considered as filed, although no plea of res judicata was filed, the court on appeal will review the action of the trial court as if the issue actually tried had been made up in due form.</p> <p>[Ed. Note. — For other cases,' see Appeal and Error, Cent. Dig. §§ 1137-1140.]</p> <p>3. Judgment <&wkey;540 — Oonclusiveness.</p> <p>When a judgment is rendered by a court of competent jurisdiction on the merits, it is conclusive between the parties.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1079.]</p> <p>4. Judgment &wkey;>559 — Oonclusiveness—Res Judicata.</p> <p>Where a municipal ordinance required cotton seed buyers to pay a license tax and provided a penalty for failure to do so and the city prosecuted a buj'or for his failure to secure a license, the judgment barred a subsequent action in assumpsit for the amount of the license fee.</p> <p>[Ed. Nóte. — For other cases, see Judgment, Cent. Dig. §§ 1077, 1078.]</p> <p>5. Appeal and Error &wkey;193(9) — Scope of Review — Waiver of Error.</p> <p>Tlie complaint of a municipal corporation to recover a. license fee, if founded upon an invalid ordinance, affords no legal -support for a judgment in favor of the city, although its sufficiency was not questioned in the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1232-1236.]</p>

<p>1. Criminal Law <&wkey;3C9(5) — Evidence — Other Offenses.</p> <p>In prosecution for larceny, it was error to admit testimony that defendant had been prosecuted in federal courts for making' liquor.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 822, 823.]</p> <p>2. Witnesses <&wkey;344(4) — Impeachment.</p> <p>The making' of liquor does not constitute bad character to such an extent that a man who is charged with making it cannot be believed.</p> <p>[Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1129, 1125.]</p>

<p>Criminal Law <&wkey;1169(2) — Harmless Error —Rulings on Evidence.</p> <p>Error in admitting evidence on prosecution for violating prohibition law that defendant was half drunk when witness met him was rendered harmless by defendant testifying he was full drunk.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3138.]</p>

P. Heflin, Judge. Charlie Johnson was convicted of carrying a concealed pistol, and he appeals. The facts sufficiently appear.

Sims, Judge. John Ragland was convicted of larceny, and he appeals. The first count appears. The second count charges that John Ragland feloniously took and carried away 1,000 pounds of seed cotton, the personal property of Mark AVyatt, of the value of 4 cents a pound. The third count is for the receiving or concealing stolen goods.

<p>Appeal from Clarke County Court; A. S. Johns'on, Judged</p> <p>Lem Howze was convicted of violating the prohibition law, and he appeals.</p>

<p>Appeal from City Court of Talladega; Marion H. Sims, Judge.</p> <p>Alphonso Ragland was convicted of crime, and he appeals.</p>

<p>Appeal from. City Court of Montgomery; Gaston Gunter, Judge.</p> <p>Allen Cooper was convicted of assault with intent to murder, and appeals.</p>

B. Evans, Judge. Rufe Newell was convicted of murder in the second degree, and he appeals. The defendant was indicted for murder in the first degree, was convicted of murder in the second degree, and from the judgment appeals. The facts necessary to a decision are as follows: On a Sunday evening in May, about dusk and after, defendant and deceased were seen in company of each other near the place where the murder is supposed to have been committed.

C. B. Gwin, Judge. Amos McMickens was convicted of petit' larceny, and appeals.

<p>1. Miscegenation <&wkey;5 — Evidence.</p> <p>In a prosecution for miscegenation, defendant’s statements tending to show his feeling toward the woman with whom he was charged with having adulterous relations, and his actions relative to her, were admissible.</p> <p>[Ed. Note, — For other cases, see Miscegenation, Cent. Dig. § 7.]</p> <p>2. Miscegenation <&wkey;5 — Evidence.</p> <p>Evidence haring been introduced tending to show the illicit relations between defendant and the woman within the time and place covered by the indictment, the court properly allowed evidence of prior or subsequent cohabitation between the parties, though committed in a different county or state, to show intent.</p> <p>[Ed. Note. — For other cases, see Miscegenation, Cent. Dig. § 7.]</p> <p>3. Witnesses <&wkey;317(2) — Credibility—False Testimony — “Willfully False.”</p> <p>A charge which failed to predicate the right to disregard entirely a witness’ testimony on the fact that she testified willfully falsely as to any material fact was improper ; the statement that if the jury believed from all the evidence that she swore falsely or willfully not being equivalent to willfully false.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1081.]</p> <p>4. Witnesses &wkey;317(3) — Disregarding Testimony-False Swearing.</p> <p>A witness’ false swearing, to give the jury the right to disregard entirely her testimony, must be as to some material matter.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1082.]</p> <p>5. Criminal Daw <&wkey;829(l) — Trial—Instructions — Repetition—Statute. •</p> <p>Under Acts 1915, p. G15, providing that the refusal of a charge, though á correct statement of the law, shall not be cause for reversal, if the same rule was substantially and fairly given the jury in the court’s general charge or in given requested charges, a charge covered by another given charge and by the oral charge was properly refused.</p> <p>[Ed. Note'. — For other cases, see Criminal Raw, Cent. Dig. § 2011.]</p>

<p>Appeal from- Circuit Court, Lowndes County ; A. E. Gamble, Judge.</p> <p>Jack Steele was convicted of murder in the second degree, and he appeals.1</p>

<p>Appeal from Daw and Equity Court, Monroe County; W. G. McCorvey, Judge.</p> <p>Thee Richardson was convicted of assault with a pistol, and he appeals.</p>

<p>Criminal Daw <&wkey;1104(3) — Appeal and Error — Review—Transcript.</p> <p>Under Acts 1915, p. 815, providing that the refusal of a charge shall not be cause for reversal on appeal, if it appears that the same rule of law was substantially given in a general charge or in requested charges, and providing the manner in which charges must be set out in 'the- transcript on appeal, where the transcript fails to set out the general charge or the written charges given at the request of the defendant, the appellate court will not consider the refused charges.</p> <p>[Ed. Note. — For other cases, see Criminal' Daw, Cent. Dig. §§ 2776, 2886.]</p>

<p>Appeal from Criminal Court, Jefferson County; Wm. E. Fort,, Judge.</p> <p>Charles Smith was convicted of buying, receiving, or concealing stolen property, and he appeals.</p>

<p>Courts <&wkey;42(3) — Act Creating Inferior Court — Constitutionality.</p> <p>Loc.. Acts 1915, p. 436, creating the inferior court for Dallas county, is unconstitutional.</p> <p>[Ed. Note. — For otlior cases, see Courts, Gent Dig. §§ 166, 167, 181-183.]</p>

H. .Alston, Judge. Action by the Reed. & Sons Piano Manufacturing Company against George W. Knight. From judgment for plaintiff, defendant appeals. This is an action of detinue for the recovery of a piano, delivered to the appellant by the appellee under the terms of an agreement of sale, as hereinafter set out.

<p>Criminal Law &wkey;»1094— Appeal — Failure to File Bill of Exceptions.</p> <p>Where the time for filing- bill of exceptions has passed, the Attorney General’s motion to dismiss the appeal will be granted.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2807, 3204.]'</p>

<p>Criminal Law <&wkey; 1090(16) — Appeal —Absence, of Bill of Exceptions.</p> <p>In the absence of a bill of exceptions, the action of the court in overruling motion for new trial cannot be reviewed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2822, 2948, 3204.]</p>

<p>Courts <&wkey;>57(2) — Circuit Court — Official Reporter — Statute.</p> <p>The judge of the M.arengo county circuit is a circuit judge, the county constituting a separate circuit, and is under duty to appoint a competent court reporter, and, such reporter having been appointed, and having performed the service and received the proper certificate, it became the duty of a bank acting as treasurer for the county to pay the entire amount under Acts 1915, p. 861, § 5, providing that each official circuit court reporter shall receive $1,200 a year, etc.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 200.]</p>

<p>1. Vagrancy <&wkey;3 — Burden of Proof.</p> <p>Under Code 1907, § 7845, that one accused of vagrancy has property sufficient for his support, or some means of making an honest livelihood, is defensive matter, and the burden of proof rests on defendant.</p> <p>[Ed. Note. — Por other cases, see Vagrancy, Cent. Dig. § 3.]</p> <p>2. Vagrancy <&wkey;3 — Sufficiency of Evidence.</p> <p>Undisputed evidence that defendant conducted a refreshment and bootblacking stand, employing several men, and was always seen near his place of business, or between there and his home, does not sustain a vagrancy conviction under Code 1907, § 7843, subds. 1-3, 13, making lack of means to earn an honest livelihood an essential element of vagrancy.</p> <p>[Ed. Note. — Por other cases, see Vagrancy, Cent. Dig. § 3.]</p> <p>3. Criminal Law <&wkey;752 — Motion to Exclude.</p> <p>In criminal cases a motion to exclude the evidence is proper where the state has not made a prima facie case.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent.JDig. §§ 1725, 1726.]</p> <p>4. Criminal Law <&wkey;722(3) — Argument — Matter Not Sustained by Proof.</p> <p>_ In a vagrancy case overruling defendant’s objection to the prosecuting solicitor’s argument that defendant associated with certain negroes, who robbed and killed, ,and that defendant got the proceeds of such crimes, is erroneous, where such charges were unsupported by evidence.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1674.]</p>

E Blackwood, Judge. Assumpsit by Roberts, Johnson & Rand Shoe Company against the Empire Clothing Company. Judgment for plaintiff, and defendant appeals. The pleas alluded to are as follows: (2) Defendant says that plaintiff is a foreign corporation, and is not qualified to do business in the state of Alabama.

<p>Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.</p> <p>Frank Graham was Convicted, and appeals.</p>

S. Johnson, Jndge. Ambus Hicks was convicted of violation of by-laws adopted by the court of county commissioners relative to highway construction, and appeals.

<p>Appeal from Circuit Court, Houston County ; H. A. Pearce, Judge..</p> <p>Ross Hornsby was convicted of manslaughter, and -he appeals.</p>

<p>1. Detinue <&wkey;5 — Property in Plaintiff-Right to Possession.</p> <p>In an action of detinue, plaintiff must show that he has property, general or special, in the chattels sought to be recovered, and must be entitled to their immediate possession.</p> <p>[Ed. Note. — For oher cases, see Detinue, Cent. Dig. §§ 5-9.]</p> <p>2. Intoxicating Liquors <&wkey;328 — Alcohol-Statutes.</p> <p>Where plaintiff, by an action of detinue, sought to obtain from a railroad possession of a shipment of alcohol to carry it to his place of business, where he was engaged in the sale of beverages, to keep and use it there in the manufacture of extracts, in violation of Acts 1915, p. 13, § 16, he was not within the protection of Acts 1913, p. 5, § 10, nor Acts 1915, p. 556, § 9, and the railroad could not deliver to plaintiff without violating the criminal law,_ nor could plaintiff accept delivery without a like result, so that plaintiff, not being entitled to immediate possession, was not entitled to recover in detinue.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 466.]</p>

<p>Appeal from Cullman County Court; R. I. Burke, Judge.</p> <p>Ernest Adams was convicted of an offense, and he appeals.</p>

<p>1. Chattel Mortgages <@=233 — Sale by Mortgagor — Evidence—Sufficiency.</p> <p>To sustain a conviction for the offense of selling mortgaged property, the state must prove beyond a reasonable doubt that the defendant had given a mortgage on the property so sold, and that at the time of the sale such mortgage was unsatisfied in whole or in part, and that such sale was made without having first obtained the consent of the lawful holder of the mortgage lien.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. | 494.]</p> <p>2. Criminal Law <@=680(2) — Evidence—Admissions.' . .</p> <p>In prosecution for sale of mortgaged property, alleged admissions of the defendant were not admissible before the corpus delicti was proven, even if a proper predicate had been laid.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. f 1610.3 ’ 1 •</p> <p>3. Criminal Law @=400(7) — Evidence—Best and Secondary Evidence.</p> <p>In a prosecution for sale of mortgaged property, evidence of statement made by alleged mortgagee that he had a mortgage on the property was incompetent as secondary evidence, until absence of written mortgage was properly accounted for, was inadmissible.</p> <p>[Ed. Note. — Por other eases, see Criminal Law, Cent. Dig. §§ 879-886.]</p> <p>4. Chattel Mortgages @=233 — Sale by Mortgag or — Evidence—Relevancy.</p> <p>In a prosecution for sale of mortgaged property, evidence of any claim the alleged mortgagee might have had to the property, other than the mortgage, was irrelevant.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 494.]</p> <p>5. Chattel Mortgages @=233 — Sale by Mortgagor — Evidence—Sufficiency.</p> <p>In a prosecution for sale of mortgaged property, evidence held insufficient to sustain a conviction.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 494.]</p>

<p>1. Vendor and Purchaser <@=>267 — Vendor’s Lien — Failure to Satisfy — Penalty.</p> <p>Under Code 1907, § 4900, providing the penalty against a lienholder for failure to enter satisfaction after request therefor, the duty is to make the entry at the place where the mortgage or lien is recorded, regardless of where the lienholder may be.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758.]</p> <p>2. Vendor and Purchaser <@=>267 — Vendor’s Lien — Failure to Satisfy — Penalty.</p> <p>Under Code 1907, § 4900, a request to enter satisfaction of lien in words, “we hereby request you to cancel of record that certain vendor’s lien retained by you in that certain contract dated February 6, 1914, and recorded March 5, 1914, in Misc. Book 5, pages 535, 536, Probate Records, Mobile County, Alabama,” is sufficient.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758.]</p> <p>3. Vendor and Purchaser <@=5267 — Vendor’s Lien — Failure to Satisfy — Penalty.</p> <p>In action for penalty for failure to enter satisfaction of vendor’s lien, it is not incumbent on plaintiff to negative institution or pendency of a suit involving payment or satisfaction of the indebtedness secured by the lien, '</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig'. §§ 751-758.]</p>

Suit by Richard Tarleton against R. W. Jones. Judgment for plaintiff before a justice of the peace was appealed to the law and equity court of Mobile, which rendered a judgment for defendant for costs. From a judgment overruling defendant’s motion to strike plaintiff’s claim of exemption on a garnishment disclosure and his motion for judgment of condemnation against the garnishee, defendant appeals.

P. Heflin, Judge. W. W. Dees was convicted, and appeals. The defendant was tried on an affidavit containing ten counts, charging in various ways violations of the prohibition laws, and was convicted on counts 1 and 5, and from the judgment he appeals. Counts 1 and 5 were as follows: “First.

C. B. Gwin, Judge. Tom Herring was convicted, of violating the prohibition law, and he appeals. The defendant was tried on an affidavit charging a violation of the prohibition law, and from a judgment of conviction he appeals.

<p>1. Embezzlement @=>13 — Servant ob Employé of Company — Statute.</p> <p>A mere servant or employé of a company who converts money or property coming into Ms possession by virtue of his employment is not guilty of embezzlement under Code 1907, § 6828, providing that any officer, agent, or clerk of an incorporated company who embezzles or fraudulently converts, etc., money or property which has come into his possession by virtue of his office or employment must be punished on conviction as if he had stolen it, since only persons' holding positions of trust and authority are covered by the statute.'</p> <p>[Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 11, 12.]</p> <p>2. Embezzlement @=>26 — Indxctment^-Form —Statute.</p> <p>The form of indictment prescribed for embezzlement by Code 1907, § 7161, form 49, applies only to officers of incorporated banks.</p> <p>[Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 37, 38.]</p> <p>3. Embezzlement @=>26 — Indictment—Statute.</p> <p>The first count of an indictment for embezzlement, charging that defendant, being at the time the servant, agent, or employé of a corporation, embezzled, etc., and the second count, charging that defendant, being at the time the clerk, agent, or servant of the company, embezzled, etc., were fatally defective, since two of the alternatives in the first and one in the second did not describe a person within the embezzlement statute (Code 1907, § 6828).</p> <p>[Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 37, 38.]</p> <p>4. Criminal Daw @=>1032(5) — Indictment and Information @=>202(5) — Substantial Defect — (Reservation of Grounds of Review-Necessity.</p> <p>Where a defect in an indictment is of substance and involves an' element of the offense, the indictment will not support a judgment, and it is the duty of the Court of Appeals to notice it, though-no objection was taken to the indictment below, but a different rule prevails where the defect, though one of substance, does not relate to an element of the offense charged.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 2627; Indictment and Information, Cent. Dig. § 645.]</p>

<p>Appeal from Criminal Court, Jefferson County; A. H. Alston, Judge.</p> <p>Stephen Bell was convicted of an offense, and he appeals.</p>

Turner, Judge. Suit by the Repton State Bank against P. D. Hudson upon a note. Judgment for plaintiff, and defendant appeals. The note was payable to the order of “Myself,”' signed by P. D. Hudson, and it is alleged in the complaint that plaintiff acquired the legal title thereto in due course, before maturity, and for value, without notice.

<p>1. Criminal Law <&wkey;1091(4) —Appeal — Admission op Evidence — Necessity op Setting Out Evidence.</p> <p>The trial court’s action in admitting the note alleged to have been forged will not be reviewed, where the note is not set out in the bill of exceptions.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2816, 2832, 2931-2933.]</p> <p>2. Criminal Law <&wkey;452(4) — Opinion Evidence — Handwriting — Qualification of Witness.</p> <p>In a prosecution for forgery, a witness who had seen the party, whose name was forged, write, or knew his handwriting, could express opinion as to genuineness of the signature in question, although the extent of his familiarity with such handwriting will enter into the weight of his testimony.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1055.]</p> <p>3. Criminal Law <&wkey;741(l) — Question for Jury — 'Weight of Evidence.</p> <p>The sufficiency and weight of the evidence in a criminal prosecution is a question for the jury.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1705, 1713, 1727, 172S.]</p> <p>4. Criminal Law <&wkey;1134(2) — Appeal and Error — Admission of Evidence.</p> <p>Where defendant did not advise the court what answer he expected to questions excluded on state’s objection, the appellate court will not consider the ruling.</p> <p>5. Forgery <&wkey;37 — Admission of Evidence.</p> <p>In a prosecution for forging a note, evidence as to whether the person whose name had been forged had ever been a surety for defendant was inadmissible, as not relevant to the issue.</p> <p>[Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 105-107, 111.]</p> <p>6. Criminar Law <@=>1170(3) — Harmless Error-Exclusion of Evidence — Similar Evidence Subsequently Admitted.</p> <p>Where defendant in a prosecution for forgery was afterwards permitted to explain his flight, any , error in previously sustaining state’s objection to questions relating thereto was harmless.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3147.]</p> <p>7. Criminal Law <&wkey;1066 — Appeai>-Necessity of Exceptions — Motion for New Trial.</p> <p>It is essential to the right to review a ruling on a motion for new trial that an exception should he reserved in view of Acts 1915, p. 722, specifically requiring such action.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2686.]</p> <p>8. Criminal Law <&wkey;1124(4) — Appeal—Matters to be Shown by Record — Motion for New Trial.</p> <p>It is essential to the right to review a ruling on a motion for new trial that exception thereto, together with evidence and ruling on the motion, should be incorporated in the bill of exceptions in view of Acts 1915, p. 722, specifically requiring such action.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2948.]</p>

, Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge. Action by C. W. Boldin against Jos. H. Jackson and others. From a judgment for plaintiff, defendants appeal. The third plea was: That said defendants at the time of the matters complained of and prior thereto constituted the board of revenue and road .commissioners of Mobile county.

<p>1. Witnesses <&wkey;331^ — Impeachment—Conversation.</p> <p>In a prosecution for assault to murder, the court properly refused to permit defendant to testify to a conversation between defendant and a witness at a time and place which had not been testified to by any witness.</p> <p>2. Homicide <&wkey;166(3) — Assault to Murder-Evidence — Defenses.</p> <p>In a prosecution for assault to murder, the court properly refused to permit defendant to prove that he had been informed that the prosecutor had mistreated defendant’s daughter, the wife of prosecutor.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 323.]</p> <p>3. Criminal Law <&wkey;1172(l) — Instructions —Ground for Reversal.</p> <p>In a prosecution for assault to murder, the giving of an erroneous instruction that the jury could find defendant guilty of an assault with 'intent to murder, if, after considering all the evidence, they had a reasonable doubt that defendant committed the assault with intent to murder, required a reversal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154.]</p>

<p>1. Criminal Law <@=3407(2) — Evidence—Res Gestas — Admissibility.</p> <p>In prosecution for assault to rape, statements of the victim and of the victim’s parents and of the witness, made at the time of the assault in the presence of defendant, were admissible.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 949, 968.]</p> <p>2. Rape <@=338(3) — Assault with Intent-Evidence — Res Gestae — Admissibility.</p> <p>In a prosecution for assault to rape, where the victim testified that accused used a pistol, it was competent for another witness to say that at about the time of the alleged offense accused had a pistol.</p>

C. Brickell, Judge. Chester McKissack .was convicted of having carnal knowledge of a girl over the age of 12 and under the age of Í6, and he appeals.

<p>Criminal Law <§=>719(1) — Argument of Counsel — Evidence.</p> <p>In a prosecution of a defendant who was seven-eighths Indian, for keeping intoxicating liquor for sale, it was error for the solicitor to state in his closing argument that, “A negro’s appetite for liquor is not a circumstance” to the appetite of an Indian, where such statement was not sustained by the evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1669.]</p>

<p>Appeal from Circuit Court,' Dauderdale County; C. P. Almon, Judge.</p> <p>Hulet Hairrell was convicted of assault to murder and appeals.</p>

<p>1. Criminal Law <@=>798(1) — Instructions— Doubt of Individual Jurors.</p> <p>It is not error on the part of the trial court to refuse to charge the jury that it is the duty of-each juror who has a reasonable doubt of the guilt of the defendant not to yield his conviction simply because all the other jurors disagree with him.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1940.]</p> <p>2. Criminal Law <@=>830 — Instructions— Manner of Request for.</p> <p>Where a charge states several distinct propositions of law, the court may properly refuse all if any one of them is unsound.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2012, 2017.]</p> <p>3. Criminal Law <@=>829(1) — Instructions— Manner of Request for.</p> <p>Where a charge states several distinct propositions of law, the court may properly refuse it if some of them are fully covered by special charges given at the instance of the same party.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011.]</p>

<p>1. Witnesses @=>337(6) — Impeachment—Conviction of Crime — Statute.</p> <p>Code 1907, § 4009, providing that a witness may be examined touching his conviction for crime, and his answers contradicted, changed the rule previously existing, and accused may he examined regarding his prior conviction for larceny.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1132, 1140-1142, 1146-1148.]</p> <p>2. Criminal Law @=>1160 — Review—Motion for New Trial.</p> <p>Where there was evidence tending to prove accused’s guilt, denial of his motion for new trial will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3084.]</p>

E. Eort, Judge. Petition by Lovelace Wade on the relation of the state of Alabama for mandamus to require W. C. Puryear as clerk, and J. T. Lowery as Becorder of the city of Birmingham to certify the case of the city of Birmingham v. Wade, to the Criminal Court of Jefferson comity. Erora a decree granting the writ the municipal officers appeal.

<p>1. Homicide <@=>232 — Evidence — Defendant’s Freedom from Fault.</p> <p>Evidence, showing that after an altercation defendant went to his house, obtained a gun, and shot deceased, tends to show a premeditated killing.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 480.]</p> <p>2. Homicide <@=>121 — Evidence — Self-Defense.</p> <p>Where evidence showed that defendant after an altercation went to his house, obtained a gun, walked back towards deceased and shot him, the doctrine of justification in defense of life or castle did not apply.</p> <p>[Ed. Note. — For other eases, see Homicide, Cent. Dig. § 176.}</p> <p>3. Criminal Law <@=>830 — Refusal of Requests — Form.</p> <p>Where special charges requested were upon different subjects but together in one document, a refusal of all of them was not erroneous..</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2012, 2017.]</p>

H. Alston, Judge. Action by the Commercial Finance Company against W. C. Dyer. Judgment for defendant, and plaintiff appeals.

<p>Criminal Law <§=>1094 — Appeal—Affirmance on Record in Absence of Bill of Exceptions.</p> <p>Where there is no bill of exceptions in the transcript, and no error apparent from the record, the judgment will be affirmed.</p> <p>[Ed. Note. — Ear other cases, see Criminal Law, Cent. Dig. §§ 2807, 3204.]</p>

H. Alston, Judge. Charles Dennisi was convicted of obtaining goods under false pretenses* and appeals.

L. Brewer, Judge. Alex Stevens was convicted of murder in the second degree, and he appeals. The charge refused to defendant, and marked 47BB, is as follows: If the jury believe from all the evidence that defendant’s testimony given by him in this cause is true, then the jury should acquit the defendant.

<p>Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.</p> <p>Paul West .was convicted of violating the prohibition law, and he appeals.</p> <p>The witness Hyde stated that he was town marshal of Guntersville, and at a certain time found five barrels of whisky on the river bank, containing 100 pints each, and that in going to where the whisky was, they met a man who had a pint of whisky branded as was the whisky in the barrel, and that when they found the whisky one barrel had been broken open; that West .was seen going in that direction on horseback, and that the horse which West was riding was found by him hitched just across the road from where the whisky was found on the river bank, but that West himself was not present. He was asked then if he found' a letter down there. When defendant was testifying he was asked by the state if the letter was addressed to him. The following charges were refused to defendant:</p> <p>(1) You cannot find defendant guilty unless the state has proved beyond all reasonable doubt that the whisky captured belonged to Paul West, and that he had it for illegal purposes.</p> <p>(2) You are to decide this case upon the law given to you by the court, and the evidence given you from the witnesses, and nothing more.</p> <p>(3) You have a right to weigh the evidence, but you have no right to jump to conclusions, except to draw conclusions and deductions from the evidence given you from the stand.</p> <p>(5) If there arises in your mind from the evidence given you from the witness stand in this case, or any part of the evidence which would create in you a reasonable doubt as to defendant’s guilt, then you should acquit him.</p>

<p>Criminal Law <&wkey; 1210 — Continuous Sentences — Rights After Discharge.</p> <p>Dnder Code 1907, § 6519, providing that, when a convict is sentenced to imprisonment in the penitentiary on two convictions, the imprisonment on the second must commence at the expiration of the imprisonment on the first, and section 6603, providing that laws or rules relative to state convicts shall apply to county convicts, except as otherwise provided, and section 6602, making it the duty of any person having possession or control of a convict to deliver him to the proper sheriff or officer, when he has been charged with the commission of another offense, where a person was convicted of two offenses and continuous sentences passed upon him, one for imprisonment in the penitentiary and the other for imprisonment in jail, and where, after serving the term in the penitentiary, he was discharged, he could not be lawfully arrested and compelled to serve the jail sentence, several months after expiration of the period covered by it.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3298-3301, 3315.]</p>

<p>1. Criminal Law <&wkey;878(3) — Conviction on One Count — Acquittal as to Other Counts.</p> <p>A conviction under one count of an indictment only operates as an acquittal as to the other counts.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2100.]</p> <p>2. Embezzlement &wkey;>ll(2) — By Trustee oe State.</p> <p>A state officer, converting- money coming into his hands by virtue of his office, is guilty of embezzlement as a trustee for the state, although not expressly authorized to receive such money as the state’s agent.</p> <p>[Ed. Note. — For other cases, see Embezzlement, Cent. Dig. § 10.]</p> <p>3. Embezzlement <&wkey;ll(2) — By Trustee oe State.</p> <p>A state officer, converting money received by him to be held for a specific purpose or to be delivered to another officer for state use, will be guilty of embezzlement as a bailee, although having no right to receive such money.</p> <p>[Ed. Note. — For other cases, sea Embezzlement, Cent. Dig. § 10.]</p> <p>4. Embezzlement <&wkey;21 — By Trustee of State.</p> <p>Code 1907, § 6831, providing for punishment for embezzlement by “a bailee or other agent or trustee” of money or property deposited with him, “or which may have come into his possession by virtue of any bailment for any purpose,” included embezzlement by immigration commissioner of state funds.</p> <p>[Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 24-29.]</p> <p>5. Indictment and Information <&wkey;110(13) —Following Language of Statute — Sufficiency — Embezzlement.</p> <p>In an indictment for embezzlement, a count substantially following the language of the statute was not objectionable.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 291-294.]</p> <p>6. Bailment <&wkey;l — “Bailee.”</p> <p>A “bailee” is a specie of agent to whom something movable is committed in trust, not for the bailee, but for another.</p> <p>[Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 1-12.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Bailee.]</p> <p>7. Embezzlement <&wkey;ll(2) — By State Immigration Commissioner.</p> <p>Where state immigration commissioner converted money paid him by landowners for advertisements in a hand-book published by the state, he was guilty of embezzlement as a bailee of the state, since Code 1907, § 831, subd. 3, required landowners to pay the expenses of such advertisements, and section 829 provided for the commissioner’s compensation in another manner, and section 828 made the commissioner liable to removal by the state, and the publishers of such book were paid out of the state treasury, thus making the commissioner the bailee of the state, and not of the landowners.</p> <p>[Ed. Note. — For other cases, see Embezzlement, Cent. Dig. § 10.]</p> <p>On Rehearing.</p> <p>8. Criminal Law <&wkey;844(l) — Appeal—Sufficiency of Exception to Charge.</p> <p>An exception merely, describing the subject treated by the court in an oral charge, and not exactly designating the objectionable statements, is insufficient.</p> <p>[Ed. Note. — For other cases, see Criminal Raw, Cent. Dig. § 2025.]</p> <p>9. Criminal Law i&wkey;844(l) — Appeal—Sufficiency of Exception to Charge.</p> <p>An exception, merely designating the beginning of parts of oral charge objected to, without showing the conclusion of such parts and using language materially different from the charge, is insufficient.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2025.]</p> <p>10. Criminal Law <&wkey;678(l) — Reception of Evidence — Election Between Acts.</p> <p>Where evidence in embezzlement prosecution showed that immigration commissioner had collected and cashed several checks within period covered by indictment, but did not show exactly when money was converted or in what quantities, the state was not required to elect on which single item of evidence it would rely.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1580.]</p>

W. Pearson, Judge. Suit by J. L. Avant and others against S. B. Adams and others. From a judgment dissolving attachment and vacating levy, plaintiffs appeal. The plaintiffs in the court below brought suit by attachment, issued out of the circuit court of Elmore county against the defendant and others, claiming for rent due on a farm for the year 1914.

Bob Langston was convicted of manslaughter, and appeals. The following charges were refused to defendant: (2) If there is a probability of defendant’s innocence, the jury should acquit him. (5) I charge you that it was not necessary for defendant to retreat because the facts in the case show that defendant was in his own castle.

<p>1. Criminad Law <&wkey;631(6) — Service op Jury List — Quashing Venire — Grounds.</p> <p>That one of the jurors drawn was not on the list served on defendant was not sufficient ground for quashing venire, where the record showed that such juror was not summoned.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1441.]</p> <p>2. Homicide <&wkey;30S(3) — Provoking Difficulty — Instruction.</p> <p>Where the evidence of the state tended to show that accused was armed with a deadly weapon and was the assailant, an instruction substantially in the language of Code 1907, § 7086, that if accused was assailant and shot deceased in a sudden encounter with a pistol concealed before commencement of the fight, and deceased had no deadly weapon, the killing cannot be less than murder in the second degree, was proper.</p> <p>[Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 644.]</p> <p>3. Homicide @=309(7) — Provoking Difficulty — Instruc . ION.</p> <p>Where the evidence tended to show that accused was the assailant, an instruction that one who provokes a difficulty out of which arises a necessity to take the life of another to preserve his own cannot invoke the doctrine of self-defense to justify tlie noaucide ne commits was proper.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 622.]</p> <p>4. Homicide >&wkey;169(3) — Evidence—Admissibility — Quarrel with Third Party.</p> <p>Evidence that immediately preceding the killing accused had a quarrel with a third party in an affray was competent.</p> <p>[Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 343.]</p> <p>5. Homicide <&wkey;116(4) — Self-Defense—Reasonable Belief of Danger.</p> <p>To justify a killing in self-defense it must appear to a reasonable man, not necessarily defendant, that there was ground for accused to1 believe, and that he did believe, that he was in danger of great bodily injury, and that there was no safe mode of retreat.</p> <p>[Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 161.]</p> <p>6- Criminal Law <&wkey;S29(l) — Refusal of Instruction-Instruction Already Given.</p> <p>It was not error to refuse an instruction on a point correctly covered by the general charge.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2011.]</p> <p>7. Witnesses <@=287(4) — Cross-Examination —Bringing out Entire Conversation.</p> <p>Where the accused had brought out a part of a conversation on the cross-examination, the state could bring out the entire conversation.[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1002.]</p> <p>8. Criminal Law <&wkey;1170(3) — Harmless Error-Erroneous Rulings on Evidence.</p> <p>Erroneous rulings on admission of evidence were not error, where accused afterwards elicited the testimony which he first sought to obtain.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 3147.]</p> <p>9. Homicide <&wkey;203(3) — Dying Declarations.</p> <p>Statement of victim, “You have shot me, you have killed me,” made shortly after shooting and while he was getting mighty weak, showed sense of impending death and made admissible his dying declaration.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 432.]</p> <p>10. Witnesses @=274(2) — Character Witnesses — Cross-Examination.</p> <p>On cross-examination of character witnesses it is permissible for opposing counsel to ask questions whether he has heard certain things affecting character of person inquired about for the purpose of testing his knowledge of character.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 966.]</p> <p>11. Criminal Law @=1186(4) — Appeal and Error — Harmless Error.</p> <p>Errors which do not affect the substantial rights of the parties will not be considered in view of Supreme Court rule 45 (175 Ala. xxi, 61' South, ix).</p> <p>12. Criminal Law @=713 — Argument and Conduct of Counsel.</p> <p>That solicitor, in his argument to the jury, stated that, if defendant is convicted, he can appeal, was not error, being a statement of law, and not of evidence. r</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1663, 1678.]</p> <p>On Rehearing.</p> <p>13. Criminal Law @=676 — Appeal and Error-Exclusion of Evidence — Reversible Error.</p> <p>Although the state had examined 13 witnesses on character, and the accused 8, exclusions! the testimony of another character witness lor defendant was not reversible error; as the addition of. one witness’ testimony would not establish good character.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1608.]</p> <p>14. Witnesses @=337(2) — Impeaching Defendani^Genbral Bad Character. _</p> <p>_ Where defendant had testified in Ms own behalf, his testimony could be impeached by showing general bad character.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1113.]</p> <p>15. Criminal Law &wkey;673(3) — Impeachment of Defendant — Limiting Effect of Evidence.</p> <p>Where accused had testified in his own behalf and produced witness as to his good character, it was not error, in the absence of a request, not to limit impeaching testimony to accused’s impeachment as a witness.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1875.]</p>

W. Haralson, Judge. Dave Sherard was convicted of obtaining money by false pretenses, and appeals. The defendant was indicted for obtaining $200 by false pretenses, and from a judgment of conviction he appeals.

<p>1. Apfeal and Error <&wkey;758(l) — Briefs— Sufficiency.</p> <p>Under Supreme Court rules 10 and 12 (175 Ala, xviii, 61 South, vii), regulating the contents of appellant’s brief, etc., the Court of Appeals will not review errors not pointed out in appellant’s brief in conformity with such rules, where appellee insists that other errors are waived.</p> <p>[Ed. Note. — For other cases,, see Appeal and Error, Cent. Dig. § 3093.]</p> <p>2. Pleading i&wkey;205(l) — Demurrer— Sufficiency.</p> <p>Under Code 1907, § 5340, providing that objections not distinctly stated in the demurrer shall not be allowed, general demurrers are properly overruled.</p> <p>[Ed. Note. — For other cases, see Pleading. Cent. Dig. § 401.]</p> <p>3. Exceptions, Bill op <8=26 — Construction.</p> <p>A bill of exceptions must be construed against the exceptor and given that construction which sustains the trial court.</p> <p>[Ed. Note. — Por other cases, see Exceptions, Bill of, Oent. Dig. § 33.]</p> <p>4. Appeal and Error <8=699(1) — Record-Instructions.</p> <p>A bill of exceptions reciting that the court “gave the following written charges requested” is insufficient to show such charges were read to the jury or that the jury was present when the charges were marked “Given.”</p> <p>[Ed. Note. — Por other eases, see Appeal and Error, Cent. Dig. § 2928.]</p> <p>5. Statutes <8=267(2) — Retroactive Operation.</p> <p>Acts 1915, p. 815, relating to requested instructions, is inapplicable to cases tried before its effective date.</p> <p>[Ed. Note. — Por other cases, see Statutes, Cent. Dig. §§ 351, 352.]</p>

Barkley Hails was convicted of assault and battery in Montgomery court of common pleas, and, upon appeal, in the circuit court, and from the last-named conviction, he appeals.

C. Briekell, Judge. ■Bascom Turney was convicted of grand larceny, and appeals. The indictment charged the talcing of $1,-200 in gold currency of the United States, the exact number and denomination of the same being unknown to the grand jury. The evidence was circumstantial, and the exceptions thereto sufficiently appear.

<p>1. Criminal Law <&wkey;828 — Affirmative Charge — Written Request.</p> <p>A general affirmative charge requested in a criminal case was properly refused, where it was not requested in writing as required by Code 1907, § 5364, as amended by Acts 1915, p. 815.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2007.]</p> <p>2. Criminal Law <&wkey;1128(2) — Presentation for Review — Affirmative Charge — Written Request.</p> <p>An affidavit of defendant’s counsel, attached to his brief on appeal in a criminal case, stating that the general affirmative charge in defendant’s hehalf was requested in writing, could not be considered; it not being permissible to supplement or correct a bill of exceptions by extraneous evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2953.]</p> <p>3. Criminal Law <&wkey;1121(3) — Appeal—Bill of Exceptions — Evidence.</p> <p>In the absence of an express statement to that effect, the reviewing court will not presume that the bill of exceptions contains all the evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2939.]</p> <p>4. Criminal Law <&wkey;696(5) — Evidence—Motion to Exclude — Timely Objection.</p> <p>In a criminal case, a motion to exclude testimony, where no timely objection bad been made to the question eliciting it, was properly denied.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1640.]</p> <p>5. Criminal Law <&wkey;696(8) — Evidence—Motion to Exclude.</p> <p>Accused cannot secure the -exclusion of testimony which he has elicited by bis own question.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1644.]</p> <p>6. False Pretenses <&wkey;38 — Allegations and Proof — Amount of Money.</p> <p>In a prosecution for obtaining money under false pretenses, the state need not prove that defendant in the manner alleged obtained the exact amount of money mentioned in the indictment; the allegations as to the amount of money obtained not being descriptive of the essential ingredient of the offense.</p> <p>[Ed. Note. — For other cases, see False Pretenses, Cent. Dig. §§ 50-53.]</p> <p>7. False Pretenses &wkey;>38 — Allegations and Proof.</p> <p>In a prosecution for obtaining money under false pretensos, it is not necessary that all the pretenses alleged be proven, but is sufficient that those proven were • intended and calculated to deceive and defraud, and that, on the strength of any one of them, the money was obtained.</p> <p>[Ed. Note. — For other cases, see False Pretenses, Cent. Dig. §§ 50-53.]</p>

<p>1. Indictment and Information <&wkey;162— Amended Complaint — Violation of Liquor Laws.</p> <p>Where defendant, after conviction in the county court on a charge that he sold, offered for sale, kept for sale, or otherwise disposed of spirituous,’ vinous, or malt liquors contrary to law, appealed to the circuit court and was there tried on .a complaint filed under Code 1907, § 6730, charging him not only as charged in the original affidavit, but also with having in his possession spirituous liquor contrary to law, the added charge set forth a distinct offense from that contained in the original affidavit, and should have been stricken on defendant’s motion.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 524.]</p> <p>2. Indictment and Information <&wkey;162— Amended Complaint — Violation of Liquor Laws.</p> <p>Under the express provisions of Acts 1915, p. 30, such additional charge in a complaint was unauthorized, where it was- a mere statement of the solicitor, unsupported by any affidavit charging xhe offense.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 524.]</p> <p>3. Indictment and Information &wkey;?162— Amendment of Affidavit — Violation of Liquor Laws.</p> <p>Acts 1915, p. 32, providing that the affidavit or complaint in prosecutions for violating laws to suppress intemperance may be amended to meet the ends of justice for any informality, irregularity, or technicality, does not authorize the amendment of an affidavit charging a complete offense and giving defendant notice of the accusation as required by Const. 1901, § 6, so as to charge an additional and distinct offense.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 524.]</p> <p>4. Intoxicating Liquors <&wkey;223(l) — Prosecution — Affidavit.</p> <p>Under an affidavit charging in the alternative in the form .prescribed by Acts 1915, p. 30, that defendant sold, offered for sale, kept for sale, or otherwise disposed of spirituous, vinous, or malt liquors contrary to law, any act of selling, offering for sale, or keeping for sale could be shown, but a violation of lie Bonner Anti-Shipping Law, making it unlawful to have in one’s possession at any one time a larger quantity of prohibited liquor than allowed by law, could not be shown.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Gent. Dig. •§§ 263-267.]</p>

<p>Appeal from Circuit Court, Jackson County; Wl W. Haralson, Joidge.</p> <p>Action by D. W. Osborne against the Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals.</p>

Merrill, Judge. Frank Cunningham was convicted of violating the prohibition law, and be appeals. Tbe indictment charges that defendant sold, offered for sale, kept for sale, gave away, or otherwise disposed of spirituous, vinous, and malt liquors.

<p>Appeal from Circuit Court, Marion County; C. P. Almon, Judge.</p> <p>Elijah W. Tarwater was convicted of an assault with a weapon, and he appeals.</p> <p>The defendant was indicted and tried on a charge of assault to murder, was convicted of assault with a weapon, and from the judgment he appeals. The facts necessary to a decision are sufficiently stated in the opinion.</p>

<p>Appeal from Circuit Court, Russell County; A. H. Alston, Judge.</p> <p>John T. Oaks was convicted of accepting a bribe as an executive officer of the state. Defendant appeals.</p>

P. Almon, Judge. Payette Miller was convicted of the offense of using abusive language, and he appeals. The court in its oral charge said: There are two clauses under this indictment drawn under the statute; the first is for the protection of the home and the occupants thereof, and the second is for the protection of woman.

P. Almon, Judge. Mack Winford was convicted of murder in the second degree, and he appeals. The defendant was indicted by the grand jury of Lauderdale county upon a charge of murder in the first degree. On the trial, he was .convicted of murder in' the second degree, and from the judgment of conviction he appeals.

<p>Appeal from Cullman County Court; R. I. Burke, Judge.</p> <p>G. Baader was convicted of violating the prohibition law, and he appeals.</p> <p>The facts sufficiently appear.</p> <p>The following charges were refused to defendant :</p> <p>(1) If, after considering all the evidence in the case, there is a probability of defendant’s innocence, you should acquit him.</p> <p>(2) If, after the entire jury considered this case, any individual member of the jury has a reasonable doubt as to defendant’s guilt, the jury should find defendant not • guilty, even though all the other members of the jury have no such reasonable doubt.-</p>

<p>1. ' Statutes <&wkey;107(9) — Subject and Title oe Acts — Constitutional Restrictions— Acts Relating to More Than One Subject.</p> <p>Loc. Acts 1915, p. 85, providing both in title and body for the creation of a system for the more efficient working of the roads of Crenshaw county and complementary measures and means to that end, and in the title and in section 22, providing_ for the compensation of -an attorney for drafting the act, is violative of Const. 1901, § 45, providing that every law shall contain but one subject, which shall be clearly expressed in the title, except revenue «bills, etc. (response of Supreme Court to certified question).</p> <p>[Ed. Nóte. — For other cases, see Statutes, Cent. Dig. §§ 130-132.]</p> <p>On Rehearing.</p> <p>2. Statutes «&wkey;64(10) — Validity— Constitutional Provisions.</p> <p>If so much of Loc. Acts 1915, p. 85, as attempted to provide for compensation to the county attorney for drawing the act was repugnant to Const. 1901, § 68, providing that the Legislature shall have no power to grant extra compensation to a county officer, servant, or employé, then the entire act must fall, because the act contemplated by the notice given as required by Const. 1901, § 106, was an unconstitutional act, and the Legislature could not disregard the unconstitutional. features and pass a valid law on such notice (response of Supreme Court to certified question).</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 195.]</p>

<p>Appeal from Circuit Court, Crenshaw County; A. E. Gamble, Judge.</p> <p>John M. Johnson was convicted of an offense, and he appeals.</p>

<p>1. Criminal Law 1115(2) — Appeal^—Review— RuiJing on Motion to Quash Venire.</p> <p>Where the record does not disclose that any evidence was offered in support of defendant’s motion to quash the venire because a copy of the indictment had not been served on him, and because a' list of all the jurors summoned for the week and those drawn as special jurors, with a copy of the indictment, was not served, or in support of his objection to trial on the overruling of the motion, the Court of Appeals will not review the trial court’s ruling.</p> <p>[Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. § 2927.]</p> <p>2. Homicide <&wkey;203(4) — Evidence — Dying Declarations — Predicate.</p> <p>In a prosecution for murder, evidence that decedent was shot in the breast, that when those to whom he called for help found him he was down on the ground “scrambling around,” and that when a physician examined decedent, shortly after he was shot, and about three hours before he died, he told decedent he was dying, and that decedent stated he never felt that way before, and thought he was going to die, was a sufficient predicate for dying declarations, made at the time.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 433, 434.]</p> <p>3. Criminal Law (&wkey;396(l) — Evidence—Rebuttal.</p> <p>In a prosecution for murder, defendant having testified that deceased had a pistol and had on his jumper, and that deceased attacked him with the pistol, rebuttal testimony that deceased, at the time of the fatal difficulty, was in his shirt sleeves, and that the witness did not see a pistol on him, was admissible.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent, Dig. § 861.]</p> <p>4. Homicide <&wkey;118(3) — Self-Defense —> Standing Ground.</p> <p>Unless a man is free from fault, he cannot stand his ground and kill when attacked, even if ho is in his place of business or in his castle.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 179.]</p> <p>5. Criminal Law <&wkey;789(S) — Degree op Proof — Instruction.</p> <p>A charge instructing that, before the jury can convict, they must believe defendant guilty to a moral certainty, is bad.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 1846-1849,1913, I960,1967.]</p> <p>6. Homicide <&wkey;3i00(13) — Instructions — Self-Defense — Ignoring Issue.</p> <p>Requested instructions on self-defense were properly refused, where they ignored defendant’s freedom from fault in bringing on the difficulty.</p> <p>[Ed. Noto. — For other eases, see Homicide, Cent. Dig. § 628.]</p>

L. Sowell, Judge. William Davis was convicted of train wrecking, and, appeals.

Wert, Judge. Boss Oldaere was convicted of violating the prohibition law, and he appeals. The second count of the complaint charges that defendant, since October 1, 1915, and before the making of this affidavit, in this county, had in his possession at one time more than two quarts of spirituous liquor, against the peace and dignity of the state of Alabama.

Wert, Judge. William Fair was convicted of violation of the prohibition law, and he appeals. The defendant was tried and convicted for violating the prohibition law, and from the judgment he appeals. The defendant was charged, by an affidavit, .with selling, offering for sale, keeping for sale, or otherwise disposing of spirituous, vinous, or malt liquor. The affidavit, after the formal parts, was in these words: “Before me, Thos.

W. Haralson, Judge. Eurman Harper was convicted of manslaughter, and he appeals. Charge 6 refused to defendant is as follows : There are many reasons why dying declarations should be received and weighed with great caution: (1) They are necessarily wanting in that test of the credibility of oral testimony, cross-examination. (2) The jury are without the opportunity of observing the temper and manner of the declarant.

<p>1. Homicide <&wkey;300(13) — Self-Defense—Instructions.</p> <p>In a prosecution for murder, charges omitting freedom from fault in bringing on the difficulty were objectionable.</p> <p>[Ed. Note. — For other casos, see Homicide, Cent. Dig. § 628.] . -</p> <p>2. Criminal Law &wkey;789(2) — Instruction.</p> <p>A charge failing to state of what the jury should be iu doubt was bad.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1906-1908.]</p> <p>3. Homicide <&wkey;35 — Manslaughter — Malice.</p> <p>Defendant could be guilty of manslaughter without having entertained malice in the killing.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 56.]</p>

A. Pearce, Judge. Rudolph Jones was indicted for murder in the first degree, was convicted of manslaughter, and from the judgment of conviction, he appeals. The facts necessary to a decision of this case sufficiently appear in the opinion.

Clair County ; J. E. Blackwood, Judge. Suit by E. D. Robertson against the Southern, Railway Company. There was verdict for defendant, and from an order granting plaintiff new trial, defendant appeals.

<p>Appeal from Circuit Court, Marion County j C. P. Almon, Judge.</p> <p>Willie Edmonds was indicted for murder in the second degree, and he appeals.</p> <p>The charge is that Edmonds killed Willie Ralls, when about five months old. The defendant seems to be the grandfather of the child, and the evidence for the state tended to show that at the time the shot was fired Calvin Ralls, son-in-law of defendant, had the child in his arms, or was just passing it back to his wife. The defendant and his wife objected to Ralls coming upon the place, but he was there to speak to his wife, who was spending the night with her father, the defendant. The following charges were refused to defendant:</p> <p>If you have a reasonable doubt growing out of any part of the evidence whether the child was alive at the time the gun was fired, then you should find defendant not guilty.</p> <p>(34) The humane provision of the law is that every one charged with crime is presumed to be innocent, and this presumption goes with him as a shield for his protection throughout the entire trial until the state removes it by satisfying evidence of such character as to establish his guilt to a moral certainty.</p>

<p>1. Judgment i&wkey;17(2) — Judgment by Default — Service on Agent of Corporation —Statute.</p> <p>Under Code 1907, § 5303, as amended by Acts 1915, p. 607, providing that the return of an officer executing summons that the person to whom delivered is the agent of the corporation shall he prima facie evidence of such fact, and authorize judgment by default otherwise without further proof of the agency, which fact need not be recited in the judgment, where the z-eturn on the summons and complaint against a corporation recited that it was executed on a specified date by leaving a copy of the summons and complaint with a named person “known to me to be the manager of” the company, such z-eturn was sufficient to authorize judgment by default against the company without proof of the agency for it of the person served, and it was inessential to the regularity of the proceedings that the judgment show that proof of agency was made.</p> <p>2. Jury <&wkey;25(2) — Trial by Jury — Absence of Demand.</p> <p>By statute, the issues and questions of fact in civil cases at law are tried by the court, unless a jury is demanded.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. § 155.]</p> <p>3. Jury <&wkey;25(2) — Jury Trial — Action on Account — Statutes,</p> <p>Under Code 1907, § 3971, providing that in all actions on open or stated account, if judgment is taken by default, and there is on file, or plaintiff shall file, an itemized and verified statement of the account, or where there are depositions on file that prima facie prove the correctness of the acconnt, no writ of inquiry shall be necessaz-y, but the court may calculate the amount of interest dúe, ascertain the total balance due plaintiff, and render judgment accordingly, without the intervention of a jury, in an action against a corporation, defendant suffering judgment by default, though plaintiff demanded trial by jury, the court properly ascertained and assessed damages without writ of inquiry and the intervention of a jury, the statute having no reference to section 3970, as amended by Acts 1915, p. 609, providing when a sworn aecozznt is admissible in evidence, so that its application is not dependent on the fact of an indorsement on the summons and complaint that the suit is on an itemized account verified by affidavit.</p> <p>[Ed. Note. — For other cases, see Trial, Gent. Dig. § 155.]</p> <p>4. Jury t&wkey;25(S) — Trial by Jury — Demand-Statute.</p> <p>In an action against a corporation, the unsigned indorsement on the summons and complaint, “Plaintiff demands a trial by jury,” did not comply with the statute providing that, if plaintiff desires tz-ial by jury, he shall indorse his demand in writing' on the summons and complaint, etc.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 166-168.]</p> <p>5. Appeal and Error <&wkey;932(l) — Review — Presumption.</p> <p>Error is never presumed, and, in the absence of contrary showing, the Court of Appeals will presume there was proper evidence on file, in an action on an account, authoi-izing the court to ascertain the amount that plaintiff was entitled to recover.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3782.]</p>

<p>1. Criminal Daw &wkey;>393(l)— Evidence — Voluntary Admission.</p> <p>Acts 1915, pp. 23, 24, § 22, subd. 13, approved January 23d, providing that in a trial of proceedings to condemn liquor one who answers claiming interest in liquors seized, shall be excused from attending and testifying' in court on ground that testimony may tend to convict him of crime, and does not apply to voluntary statement out of court.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 871.]</p> <p>2. Criminal Law <&wkey;1059(2) — Appeal—Exception to Instructions.</p> <p>An exception “to each and every paragraph and sentence of the court’s charge” presents nothing for review.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2671.]</p> <p>3. Intoxicating Liquors <&wkey;139 — Illegal Possession.</p> <p>It is a violation of prohibition law for defendant to retain in his possession liquors that were owned* and possessed by him before the law became operative.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors. Cent. Dig. § 149.]</p> <p>4. Criminal Law &wkey;121S — Sentence—Several Offenses.</p> <p>"Where defendant has been convicted of a number of misdemeanors punishments for which aggregate more than two years at hard labor for the county, he should be sentenced, not under Codo 1907, § 6583, providing that no person shall be sentenced to hard labor for a county so that aggregate of sentences on two or more convictions shall exceed 2 years for the crime, but to the penitentiary under Code 1907, § 7020, providing that in all cases in which the period of imprisonment in the penitentiary or hard labor for the county is more than 2 years the judge must sentence party to imprisonment in the penitentiary, as the latter section embraces both felonies and misdemeanors.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3320-3328.]</p> <p>5. Indictment and Information <&wkey;130— Joinder oe Counts.</p> <p>The effect of Acts 1915, p. 31, § 30, approved January 23d, was to authorize the joinder in one indictment of separate counts for several offenses against the liquor laws and conviction and judgment under each count as upon separate indictments.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 419 — 423.]</p> <p>Brieken, J., dissenting in part.</p>

L. Sowell, Judge. Harrison Fuller was convicted of murder in the second degree, and lie appeals. The following charges were refused to defendant: (21) Evidence of previous good character may along be sufficient to raise a reasonable doubt, when considered along with all the other evidence in the case.

<p>1. Contracts &wkey;jl05 — Contracts fob Services — Validity.</p> <p>Contracts made in violation of Code 1907, §§ 1626-1646, relative to the right of physicians to practice medicine without certificates of qualification, are void in the hands of all persons involved in the guilt of the transaction.</p> <p>2. Bills and Notes <&wkey;375 — Defenses— Physicians and Surgeons.</p> <p>Any contract made in violation of Code 1907, § 1644, providing that a physician shall not be entitled to compensation for services where Ms certificate has not been recorded, and! section 7564, prescribing a penalty for practicing medicine without a license, is void ab initio; and hence it is a good defense to a note given for services of a physician that the physician is acting in violation of such sections, though the plaintiff was an innocent purchaser of the note before maturity,</p> <p>3. Appeal and Error <&wkey;1040(8) — Harmless Error — Pleading.</p> <p>Error, if any, in sustaining a demurrer to a replication as to one plea was harmless where the undisputed evidence sustained another plea constituting a complete answpr to the complaint.</p>

W. Pearson, Judge. Thomas McWhorter was convicted for selling or removing six bales of cotton with the purpose of hindering, delaying, or defrauding his landlord, and appeals.

Action by Lula G. Hutcliinson against R. H. Bozeman for deceit in the sale of land. From a judgment sustaining demurrers to the complaint, plaintiff appeals. Count 1 is as follows: Plaintiff claims of defendant the sum of $500 for deceit in the sale of two lots, which defendant at the time of the sale knew to be situated in a low, flat place, and of practically no value.

<p>1. Criminal Law &wkey;>696(5) — Trial — Evidence — Motion to Strike Out.</p> <p>On trial for larceny, defendant cannot have testimony admitted without objection stricken out.</p> <p>2. Criminal Law <&wkey;517(l) — Confessions— Admissibility.</p> <p>A confession is not admissible, unless it is shown that it was made freely and voluntarily, without the application of hope or fear.</p> <p>8. Criminal Law <&wkey;531(3), 736(2) — Confessions — Determination of Admissibility-Question fob Court.</p> <p>Whether confessions or admissions are freely and voluntarily made is matter of law, to be decided by the court; and if there is reasonable doubt that they were so made, it must be resolved against their admissibility.</p> <p>4. Criminal Law t&wkey;520(6) — Confessions— Inducement.</p> <p>A confession induced by the hope that defendant would not be placed in jail without bail, and could secure bondsmen before he gave himself up, is not voluntary, and therefore not admissible in evidence.</p> <p>5. Criminal Law <&wkey;552(3) — Circumstantial Evidence — Degree of Proof.</p> <p>To warrant conviction on circumstantial evidence, it should exclude every other reasonable hypothesis than that of defendant’s guilt.</p>

<p>Appeal from Circuit Court, Cleburne County; Hugh D. Merrill, Judge.</p> <p>Mans Putnam was indicted, tried, and convicted of assault and battery, and from the judgment he appeals.</p>

<p>Appeal from Circuit Court, Cleburne County; Hugh D. Merrill, Judge.</p> <p>Mans Putnam was convicted of the offense of using abusive language, and appeals.</p>

B. Smith, Judge.- Action by E. J. Cox and another against the De Bardeleben Coal Company, a corporation, and others, for damages for the destruction of a boat. There was judgment against all of the defendants, and they appeal. Certiorari denied 200 Ala. 553, 76 South. 911.

W. Haralson, Judge. Tyrus Lawson was convicted of manslaughter, and he appeals. The facts sufficiently appear. The following charges were refused to defendant: (1) To justify a conviction on circumstantial evidence, it must be so strong and connected as to lead the mind with unerring certainty to the conclusion of guilt, to the exclusion of every other reasonable hypothesis.

<p>1. Arson &wkey;>37(l) — Proof of Crime — Sufficiency.</p> <p>In arson, the corpus delicti consists, not alone of a building burned, but also of its having been willfully fired by some responsible person, and burning by accidental and natural causes must be satisfactorily excluded, to constitute sufficient proof of the crime.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Arson.]</p> <p>2. Arson <&wkey;37(l) — Evidence—Sufficiency.</p> <p>In prosecution for arson, evidence held insufficient to prove the corpus delicti.</p>

<p>1. Embezzlement <&wkey;32 — Indictment—Statute.</p> <p>Under Code 1907, § 6828, providing that any officer, agent, or clerk of an incorporated company, who embezzles any money which has come into his possession by virtue of his office or employment, must be punished on conviction as if he had stolen it, an indictment charging that defendant, who was at the time “the agent or servant” of a telegraph company, a corporation, did embezzle, etc., was fatally defective, by reason of the alternative averment “or servant,” since an indictment by unequivocal averments must charge every essential element of the offense, while that defendant is an officer, agent, or clerk of an incorporated company is one of the essential elements of the offense sought to he charged.</p> <p>2. Indictment and Information &wkey;>154— Omission to Charge Element of Offense.</p> <p>If the defect in an indictment is the omission to charge a constituent element of the offense, it will be noticed in the absence of demurrer.</p>

W. Haralson, Judge. Action by Robert Oscar Knight against the Harbison-Walker Refractories Company Judgment for plaintiff, and defendant appeals.

<p>Gamins <&wkey;98(2) — Evidence—Sufficiency— “Public Place.”</p> <p>In a prosecution under Code 1907, § 6983, for gaming, evidence held insufficient to justify the conclusion that the place at which the game was played was a “public place” within the meaning of the statute.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Public Place.]</p>

<p>1. Chattel Mortgages &wkey;> 172(2) — Detinue by Mortgagee — Pleading — Breach of W ARRANTY — STATUTE.</p> <p>Under Code 1907, § 3791, providing what may be pleaded when detinue is brought by a mortgagee or a vendor in a contract of conditional sale, in an action of detinue, plaintiff claiming under a chattel mortgage executed by defendant, defendant had the right to plead breach of warranty made by plaintiff as to the soundness of the property, the price of which constituted the consideration of the mortgage relied on by plaintiff.</p> <p>[Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. §§ 306, 312.]</p> <p>2. Chattel Mortgages c&wkey;172(6) — Breach of Warranty — Measure of Damage.</p> <p>In detinue by a mortgagee against his mortgagor, where defendant pleaded broach of warranty by plaintiff as to the soundness of the property, the purchase price of which constituted the consideration of the mortgage, the defense, if sustained, reduced the amount of the mortgage, debt by the difference between the agreed price of property and the real value at time of sale.</p> <p>[Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. § 308.]</p> <p>3. Chattel Mortgages &wkey;>172(5) — Detinue —Value of Property — Sufficiency of Evidence.</p> <p>In detinue by a mortgagee against the mortgagor to recover mules sold by plaintiff to defendant, the latter pleading breach of warranty, evidence as to the value of the property involved in the case held sufficient to sustain verdict for plaintiff.</p> <p>[Ed. Note. — Eor other eases, see Chattel Mortgages, Cent. Dig. § 307.]</p>

<p>Intoxicating Liquors &wkey;>236(l) — Unlawful Sale — Sufficiency of Evidence.</p> <p>Evidence held to sustain a conviction of unlawfully selling intoxicating liquor.</p> <p>[Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 300.]</p>

<p>Appeal from Circuit Court, De Kalb County ; J. E. Blackwood, Judge.</p> <p>James Adkins was convicted of carrying a concealed pistol, and he appeals.</p> <p>Defendant admitted carrying a pistol, but asserted he carried it under circumstances which justified the carrying, in that he had been threatened by two of the Weldons who had ordered a couple of new Colt pistols which were then in the express office. The following charges were refused to defendant:</p> <p>(1) The state is as much interested in the acquittal of the innocent as it is in the conviction of the guilty.</p> <p>(2) Unless you believe beyond a reasonable doubt that he had it concealed about his person, you cannot convict the defendant.</p> <p>(3) If yon have a reasonable doubt of defendant’s guilt, you cannot convict him.</p>

<p>Appeal from Circuit Court, Russell County; A. H. Alston, Judge.</p> <p>Ben Edmunds was convicted of violating</p> <p>the prohibition laws, and he appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; E. C. Crow, Ju'dge.</p> <p>Action by W. M. Fields against E. L. Higdon and others for damages for failure to-levy a writ of attachment. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Circuit Court, Coffee County ; A. B. Foster, Judge.</p> <p>John Carter was cbnvicted of selling or removing certain personal property upon which there was a lien, and appeals.</p>

<p>1. Criminal Law <&wkey;1120(3) — Appeal—Reservation of Grounds of Review — Objection to Evidence — Rule of Court.</p> <p>In a prosecution for burglary, where defendant’s counsel asked1 a witness a question on cross-examination, the solicitor objecting, and the court sustained the objection, there being no showing made as to what the witness would have answered, the court’s action was not reversible error. Under Supreme Court rule No. 45 (SI South, ix1), defendant may not complain of the sustaining of an objection to a question asked a witness, without showing what the witness would have testified to.</p> <p>2. Witnesses <&wkey;280 — Examination—Embarrassing and Humiliating Question.</p> <p>The court should not allow counsel to browbeat a witness, or to insult him in the asking of a question, as by asking a witness, “Do you tell the jury you swore a lie then or now; which is true?” a question that could only have been intended to embarrass and humiliate the witness.</p> <p>3. Criminal Law <&wkey;696(5) — Trial—Failure to Object to Question.</p> <p>Where defendant failed to object to a question asked a witness until the question had been answered, he was not entitled to have the answer stricken on motion, since he cannot speculate on what a witness will say.</p> <p>4. Criminal Law <&wkey;695(2) — General Objection to Question.</p> <p>General objection to a question asked a witness was properly overruled.</p> <p>5. Criminal Law <&wkey;1170%(3) — Appeal — Harmless Error.</p> <p>Where a question propounded to a witness was not answered, the overruling of defendant’s objection thereto was harmless.</p> <p>6. Burglary <&wkey;.31 — Evidence—Immateriality — “Irrelevancy.”</p> <p>In a prosecution for burglary, testimony of a police officer as to whether or not there was an attempt being made to arrest some one for breaking into a store was inadmissible, as immaterial ; evidence being irrelevant where it has no tendency to prove or disprove any issue involved.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Irrelevancy.]</p> <p>7. Criminal Law <&wkey;108S(18) — Appeal — Questions Reviewable — Charges Not in Record Proper.</p> <p>On appeal from a conviction of burglary, charges appearing only in the bill of exceptions, and not in the record proper* * as required by law, are not reviewable.</p>

Action by Propst & 'Duckworth, a partnership composed of J. M. Propst and L. P. Duckworth, against the Southern Railway Company, for damages for failure to deliver and for injury to certain cows and calves delivered by the plaintiffs to the defendant to be delivered to plaintiffs’ broker in St. Louis. From a judgment for plaintiffs, defendant appeals.

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Action by E. E. Hunnieutt against Hallie F. Bryan. From a judgment for plaintiff,defendant appeals.</p>

<p>Appeal from City Court of Anniston; Thos. W. Coleman, Jr., Judge.</p> <p>Ed Richey was convicted of the crime of seduction, and appeals.</p>

C. B. Gwin, Judge. Action by Nancy Banks against the Louisville & Nashville Railroad Company. Erom judgment for plaintiff, defendant appeals. The plaintiff brought suit against the defendant, claiming damages .for personal injuries sustained by her as a passenger. The first count alleged that plaintiff was a passenger, and the second count that she was attempting to board a train of defendant for the purpose of becoming a passenger, and both counts alleged negligence.

<p>1. Bastards <&wkey;35 — Proceedings against Minor — Jurisdiction.</p> <p>A proceeding in bastardy is not criminal, and the court did not err in putting defendant to trial and overruling his motion to suspend the proceedings and remit him to the probate court, as provided by Act 1915, pp. 577-589, with reference to criminal prosecution, on the ground that he was under the age of 16.</p> <p>2. Bastards &wkey;>34, 70 — Defenses—Minority.</p> <p>TEé plea that defendant was under 16 years at the time of the commission of offense was not a legal answer, but, the state having taken issue upon the plea, and it appearing that defendant was under 16 years of age at the time the child was begotten, defendant was entitled to a verdict on his plea.</p>

W. Speake, Judge. Action by Dee Almon against the Hotne Supply Company. From a judgment for plaintiff, defendant appeals. Action by the plaintiff against the defendant, claiming damages for wrongfully taking three bales of cotton. From a judgment for the plaintiff, the defendant appeals.

<p>1. Larceny <&wkey;51(l) — Evidence—Possession of Stolen Proferty.</p> <p>On trial for grand larceny, state may prove that belts stolen from gin mill were found in possession of defendant.</p> <p>2. Larceny c&wkey;64(6) — Burden of Proof — Possession of Stolen Property.</p> <p>The recent possession of stolen goods imposes upon the possessor the onus of explaining the possession, and if he fails to make a reasonable explanation it raises a presumption of guilt.</p> <p>3. Larceny <&wkey;49 — Evidence—Presence of Accused in Vicinity.</p> <p>On trial for larceny of belts, state may prove that defendant'was seen in vicinity of theft at about time belts were stolen.</p> <p>4. Larceny &wkey;>50 — Evidence — Acts of Accused.</p> <p>On trial for larceny of belts, state may show how defendant acted while in possession of belts found at his mill, and what he said about it while he was in possession of the property.</p> <p>5. Larceny <&wkey;68(l) — Evidence — Sufficiency.</p> <p>Where state, on trial for larceny of belt, proves that defendant was seen in vicinity of theft at time belt was stolen, that it was found in his possession, that after it was carried down to his mill it was measured, and, on approach of another man, defendant hid it, question of defendant’s guilt was for jury.</p>

<p>1. Criminal Law &wkey;>1031(4) — Apbeal— Objection Kot Raised Below — Plea op Former Jeopardy.</p> <p>Where a criminal case is tried on a plea of former jeopardy defective in substance, without objection to manner in which issue is raised, question of its sufficiency cannot be raised in Court of Appeals.</p> <p>2. District and Prosecuting Attorneys <&wkey;</p> <p>8 — Admissions—Conclusiveness on State.</p> <p>The principle that an attorney’s solemn admissions, made in progress of trial of a case, are binding on his client, applies, as between state and its solicitor, to confession by latter of defendant’s plea of double jeopardy.</p> <p>3. Criminal Law <&wkey;93 — Jurisdiction —</p> <p>County Courts.</p> <p>Under Code 1907, § 6700, giving county court original jurisdiction of misdemeanors, it has final jurisdiction of prosecution for theft of bowl worth $5, where complaint charges theft of bowl and other household articles, of value aggregating $36.50, and bowl was stolen at different time from other articles.</p>

<p>Appeal from Circuit Court, Covington .County; A. B. Foster, Judge.</p> <p>Josiah Benton was convicted of petit larceny, and appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.</p> <p>S. B. Franklin, alias, etc., was convicted, and he appeals.</p>

<p>1. Criminal Law @=744 — ^Dual—Directing Verdict of Acquittal.</p> <p>In prosecution for burglary, court erred in refusing defendant tbe affirmative charge, where evidence, which was without conflict, would not support judgment of conviction.</p> <p>2. Burglary @=45 — Variance — Direction of Verdict.</p> <p>Where there is a variance, between allegations in indictment for burglary and proof, as to ownership of bouse alleged to have been broken into and entered, court erred in refusing defendant the affirmative charge.</p> <p>3. Criminal Law @=448(11) — E'vidence-^Admissibility — Conclusion.</p> <p>On trial for burglary, court erred in permitting witness to testify that defendant ran away, since that is a conclusion on the part of the witness. i</p>

<p>Appeal from Circuit Court, Dale County; J. S. Williams, Judge.</p> <p>Aubrey McKinnon was convicted, and he appeals:</p>

<p>Appeal from Circuit Court, Clarke County; Ben D. Turner, Judge.</p> <p>Action by Joe Slaton against the Southern Railway Company. Prom judgment for plaintiff, defendant appeals.</p>

Sims, Judge. Suit by J. O. Jones & Bro. against Moses Carmichael and others. Erom an order overruling defendants’ motion to set aside judgment for plaintiffs by default, defendants appeal, and plaintiffs move to dismiss the appeal.

L. Brewer, Judge. Mack Robertson was convicted of assault with a weapon, and appeals. This is an appeal from a judgment of conviction upon an indictment returned by the grand jury of Tallapoosa county, charging appellant with the offehse of assault with a weapon.

Proceeding by the State against Will Strawbridge for failure to procure a license. Demurrer to complaint was sustained, and the State appeals.

A. Pearce, Judge. Dan McLean was convicted of vagrancy, and he appeals. The defendant was tried on a charge of vagrancy, was convicted, and from the judgment of conviction he appeals.

<p>Appeal from Circuit Court, Dallas County ;• J. B. Evans, Judge.</p> <p>William T. Pierson was convicted of moving cattle from a quarantined district into a non-*. quarantined district, and appeals.</p>

<p>Appeal from Circuit Court, Marshall County; R. C. Briekell, Judge.</p> <p>C. Kuykendall was indicted for murder, and he appeals.</p>

P. Heflin, Judge. The Louisville & Nashville Railroad Company was convicted of violating the Locomotive Headlight Law, amd it appealed to the Court of Appeals, which certifies the question of the validity of the statute to the Supreme Court. Opinion of Supreme Court certified to Court of Appeals in answer to question. Certification to the Supreme Court.

Ferguson, Judge. Action by Carrie Brooks against the Birmingham Waterworks Company for damages for failure to supply water. Judgment for plaintiff, and defendant appeals. For opinion in Supreme Court, denying certiorari, see Ex parte Brooks, 200 Ala. 697, 76 South. 995. The complaint alleges a negligent and wrongful refusal of defendant to, furnish plaintiff water at her residence, and consequent damage.

<p>Appeal from Law and Equity Court, Morgan County; Thomas AY. AYert, Judge.</p> <p>Lawrence Herbert was convicted of seduction, and appeals.</p> <p>The defendant was indicted at the fall term, 1916, for seduction, was convicted, and from the judgment he appeals.</p> <p>On the trial, the state offered testimony by the prosecutrix that the first act of intercourse took place in November, 1913, that there was a promise of marriage, and that it was by reason of the promise of marriage that prosecutrix yielded to the desires of defendant. After this, the state, over the objection and exception of defendant, was permitted to offer testimony of frequent acts, visits, and relation existing between the parties for a period extending into the year 1916, at which time it became known that the girl was pregnant and demanded of defendant that he fulfill his promise and protect her against humiliation. It is shown by the evidence without conflict that during all this time the defendant was a constant visitor of prosecutrix at her home, where she lived with her mother, showing her such attentions as a suitor usually shows to the girl he intends to wed, and it is also shown that during these visits there were frequent acts of intercourse between them; the girl yielding each time under the promises and endearing terms of the defendant. This last is denied by the defendant; but there is an entire absence of any evidence tending to show that the girl was visited by other young men, or that she was in any wise unfaithful ’ or untrue to the defendant. The testimony of the prosecutrix is abundantly corroborated by other witnesses, so as to authorize a conviction under the statute requiring corroboration. The defendant denies the promises and endearing terms, but admits the. relationship, and testifies that it began in 1911, insteád of November, 1913, and under circumstances, if the defendant is to be believed, as to tend to prove the unchastity of the prosecutrix, and claims that it ended in the spring of 1915, before the girl became pregnant. It was shown that the defendant was arrested in a distant state, and, in explanation of his leaving the state where he was born and raised and worked «St his trade, he said that in June, 1916, about a month after the girl’s brother had called on him to make good his promise of ma'rriage, he had an offer of better wages in Arkansas, and went there to work.</p> <p>Defendant objected to the testimony as to all acts of intercourse, endeáring terms, attentions, and promises of marriage after November, 1913. The court overruled these objections, and defendant excepted.</p> <p>The court refused the following written charges requested by the defendant:</p> <p>(2) If you believe the evidence in this case, you will find for the defendant. * * * .</p> <p>. (A) If you believe the evidence, you will find the defendant not guilty.</p> <p>(10) If you believe from the evidence that the defendant had several intercourses with Elizabeth Henderson in November, 1912, and continued in such acts of sexual intercourse until November 19, 1913, they must find him not guilty.</p> <p>(13) I charge you that in order to find the defendant guilty the evidence must show more than a mere promise of marriage and subsequent illicit intercourse.</p> <p>(0) If you believe from the evidence that the prosecutrix, Miss Henderson, was unchaste at and prior to the time the defendant first met her, then I charge you that the burden of proof is upon the state to establish by the evidence, beyond a reasonable doubt, that the prosecutrix had reformed, and that she was chaste at the time the defendant promised defendant to marry her, and thereby induced her to have sexual intercourse with him.</p> <p>(8) If the jury believe from the evidence that the defendant had sexual intercourse with Miss Henderson for some time prior to November 19, 1913, with her consent, and continued in such acts of sexual intercourse until November 19, 1913, then I charge you that Miss Henderson on said last date was within the eyes of the law unchaste, and your verdict should be for the defendant, although you may believe that on said November 19, 1913, the defendant made promises of marriage to the prosecutrix, Miss Henderson, and told her that he loved her and would protect her and -by reason of such promises and statements she yielded to his request.</p>

M. Miller, Judge. Clarence Stollenwerck was convicted of keeping open store on Sunday, and he appeals. The defendant was indicted by the grand jury in two counts charging violation of the law in keeping open store on Sunday. The first count charged defendant with keeping open store on Sunday.

C. Brickell, Judge. Action by Walker, Stipp & Johnson against Eldred Fletcher and others. Judgment for defendants, and plaintiff appeals. The plaintiff in the court helow, appellant here, declares on eight counts, claiming for the conversion of certain chattels, the failure of a bailee to redeliver at the termination of the bailment, and for negligent injury to property.

<p>1. Bills and Notes t&wkey;467(2) — Actions — Pleading.</p> <p>A complaint claiming of defendant a specified amount on notes therein described and alleging that the notes were payable to B., but were the property of the estate of which plaintiff was administratrix, was sufficient.</p> <p>On Rehearing.</p> <p>2. Bills and Notes <&wkey;489(7) —Actions — Variance — ‘ ‘N ote’ ‘ ‘ Specialty. ’ ’</p> <p>A complaint alleging a cause of action on “notes” therein described was not supported by written instruments whereby the maker promised to pay a specified amount on a certain date providing a building was completed and turned over to him by the payee within 30 days from date, since a “note” under commercial law is a written agreement by one person to pay another person therein named absolutely and unconditionally a certain sum of money at a time specified therein, and the instrument in question, being a conditional promise to pay, was a “specialty.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Note; Specialty.]</p>

<p>1. Larceny <&wkey;43 — Hog Theft — Possession of Parts of Hog — Evidence.</p> <p>In a prosecution for hog theft, testimony that the owner found the parts of a freshly butchered hog in defendant’s possession, the head of which he identified as being marked with his mark, in connection with his evidence that he had lost two sows marked with his mark, was admissible as tending to prove the corpus delicti.</p> <p>2. Larceny &wkey;>43 — Hog Theft — Possession of Parts of Butchered Hog — Evidence.</p> <p>In such prosecution, evidence of the owner that he found parts of a freshly; butchered hog, other than the head, marked with his mark in defendant’s possession, was admissible.</p> <p>3. Larceny <&wkey;68(l) — Hog Theft — Jury’s Duty to Draw Inference. '</p> <p>In a prosecution for hog theft, it was the province of the jury to draw an inference from the evidence that the hog whose parts were found in defendant’s possession was one of those lost by the owner, and that its possession was larcenously acquired by defendant.</p> <p>4. Larceny t&wkey;40(2) — Variance—Hog Theft —Proof of Theft of Single Hog.</p> <p>In a prosecution for hog theft, it was nol; incumbent on the state to prove that defendant stole two hogs or sows; proof of the theft of one was sufficient.</p> <p>On Rehearing.</p> <p>5. Larceny <&wkey;68(l) — Hog Theft — Proof of Corpus Delicti — Question for Jury.</p> <p>In a prosecution for hog theft, whether the evidence proved the corpus delicti held for the jury.</p>

<p>Chattel Mortgages <&wkey;213 — Crop Mortgages — Suit by Assignee.</p> <p>Where one took a rent note and crop mortgage, and sold and transferred them to another, and after they fell due and the crop had been sold purchased them back, he cannot recover for conversion of the crop, where he does not sue as assignee.</p>

W. Ferguson, .Judge. Suit by Mrs. L. F'riedman against the Birmingham Railway, Light & Power Company for personal injuries alleged to have been sustained while crossing defendant’s street railway track. From a judgment for plaintiff, defendant appeals.

W. Haralson, Judge. Action in trover for conversion of mortgaged property b.v V. H. Copeland against the T. L. Farrow Mercantile Company. Judgment for plaintiff, and defendant appeals.

<p>Appeal from City Court of Birmingham; H. A. Sharpe, Judge.</p> <p>Action between City of Birmingham and H. W. Collins. From a judgment, the city appeals.</p>

Suit by Horace Turner & Co. against the Munson Steamship Line. From a judgment of nonsuit, plaintiff appeals. The plaintiff in the court below (appellant here) brought its original suit declaring in four counts for a breach of a contract. The first three counts were the common counts, and were not afterward considered in the pleadings which followed.

<p>.1. Evidence &wkey;>400(9) — Parol — Identification of Mortgages Referred to in Assignment.</p> <p>Where a number of mortgages without particular description were assigned to plaintiff, testimony that the mortgage involved was included in. the assignment was properly received, being an identification of an instrument referred to in the written assignment and not a construction of the writing.</p> <p>2. Money Received <&wkey;>7 — Actions — Right to Maintain.</p> <p>Where plaintiff’s crop mortgage was first executed and duly recorded in the county where the crops were grown prior to the time defendant’s agent, under a subsequent mortgage, collected the proceeds of the crop, plaintiff, in equity and good conscience, is entitled to recover the proceeds of the crop from defendant and may maintain an action for money had and received.</p> <p>3. Chattel Mortgages <&wkey;48 — Description —Sufficiency.</p> <p>A ci’op mortgage, declaring that the mortgagee shall have a lien on the crops of cotton raised by the mortgagor on the “Greek Place” in a named county or any other place in the county, is not bad for indefiniteness.</p> <p>4. Chattel Mortgages <&wkey;>203 — Assignment — Validity—Effect.</p> <p>Though a written assignment of a crop mortgage was insufficient to carry the legal title, yet where the mortgage and a note secured thereby were delivered to the assignee he took an equitable title.</p> <p>5. Money Received <&wkey;>7 — Actions — Right to Maintain.</p> <p>One having an equitable title to a crop mortgage may maintain an action for money had and received against a junior lienor who collected the entire proceeds of the crop.</p>

<p>1. MÍasteb and Servant <&wkey;>107(4) — Injuries to Servant — Safe Place to Work — Stat- ' ute — “Ways, Works, Machinery, or ' Plant.”</p> <p>Where .two carpenters employed by a stave company, plaintiff and another, were making repairs on one of the stave company’s buildings hncl plaintiff’s fellow servant, without any direction or suggestion from the superintendent, erected a scaffold for use in the work of repairing the building, such scaffold, which fell and injured plaintiff, was not a part of the “ways, works, machinery, or plant” connected with or used in the business of the master, within Code 1907, § 3910, subd. l, providing that an employer is liable to an injured servant for injury caused by reason of any defect in the condition of the ways, works, machinery, or plant of the employer; “plant,” in its ordinary sense, including •whatever apparatus is used by a business man in carrying on his business, not his stock in trade, but what he keeps for permanent employment.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Machinery or Plant; Ways; Works; First and Second Series, Plant.]</p> <p>2. Master and Servant <&wkey;116(l) — Injuries to Servant — Safe “Place” to Work — Scaffold.</p> <p>Such temporary scaffold was not a “place,” within the common-law doctrine imposing a duty on the employer to provide the servant a safe place to work.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Place.]</p> <p>3. Master and Servant &wkey;>116(l) — Injuries to Servant — Duty to Furnish Safe “Appliance” or “Utility” — Scaffold.</p> <p>Such scaffold was not an “appliance,” or “utility,” within the meaning of the law imposing on the master the duty to exercise reasonable care in furnishing reasonably safe appliances.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Appliance; Utility.]</p> <p>4. Master and Servant (&wkey;185(10) — Injuries to Servant — Failure to Furnish Safe Appliances or Place to Work — Master’s Furnishing Material for Scaffold.</p> <p>Where a stave company furnished to its two carpenters, engaged in repairing its building, suitable materials with which to construct a scaffold or staging, and one of the carpenters constructed a scaffold so defective that it fell and. injured the other, the stave company was not liable on the ground that it did not furnish reasonably safe appliances or a safe place to work.</p> <p>5. Master and Servant <&wkey;190(12) — Injuries to Servant — Negligence in Superintendence-Liability.</p> <p>Where the material furnished for scaffolding in the repair of the employer’s building was not suitable, and the scaffold was too heavily loaded by lumber placed thereon under the supervision of one carpenter, who was intrusted with superintendence over the work, there was negligence in respect to superintendence of the work, entitling the other carpenter, injured by the collapse of the scaffold, to recover of the employer.</p>

<p>Appeal from City Court of Bessemer; J. C. B. Gwin, Judge.</p> <p>Action by W. E. O. Vermillion against tbe Alabama Great Southern Railroad Company, for damages for misrepresentation in tbe sale of mileage transportation. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.</p> <p>Action by J. M. Rogers, Sr., against Will D. Sanders) Judgment for plaintiff, and defendant appeals.</p>

<p>1. Contracts <&wkey;144, 145 — What Law Governs.</p> <p>A contract “subject to acceptance at the homo office” of one of the parties in a foreign state, and marked “accepted,” with the date thereof, in that state, was completed in that state, and therefore to be construed according to the laws thereof.</p> <p>2. Pleading <&wkey;193(6) — Dupliciijr — Contracts.</p> <p>In suit against guarantors on their joint agreement to guarantee the honest and faithful performance of a contract to pay for supplies furnished, the action in one count being for failure of the original obligor to remit each week as he agreed to do, the count is not demurrable as an action for the breach of two separate and distinct contracts joined in the same count. ‘</p> <p>3. Guaranty <&wkey;85(2) — Action—Pleading.</p> <p>In action against guarantors on thoir guaranty, where by the contract terms defendants waived notice of acceptance, no such allegations are necessary.</p> <p>4. Guaranty <&wkey;S5(3) — Action—Pleading.</p> <p>In action on an absolute guaranty, it is not necessary to allege that plaintiff has exhausted his legal remedies against the original obligor.</p> <p>5. Monopolies t&wkey; 17(1) — Sale op Goods.</p> <p>In a retailer’s purchasing contract with' a wholesaler of medical and other goods, a provision that he sell goods so purchased at retail prices to be fixed by the wholesaler is void as tending to place a burden upon the alienation of property not necessary for the protection of the parties.</p> <p>6. Contracts &wkey;>137(l) — Partial Illegality —Single Consideration.</p> <p>Where an agreement consists of a single promise, based on a single consideration, if either is illegal the. whole contract is void.</p> <p>7. Contracts <&wkey;3.37(l) — Severability.</p> <p>Where an agreement is founded on a legal consideration containing a promise to do several things or to refrain from doing several things, and some only of the promises are illegal, the promises which are not illegal will be held to be valid.</p> <p>8. Contracts <&wkey;137(l; — Severability.</p> <p>The invalidity of a provision requiring a retailer to sell at retail prices fixed by the wholesaler did not invalidate the remainder of the contract, being severable.</p>

A. Pearce, Judge. Josiah Butler was convicted of manslaughter, and he appeals. The following charges were refused to defendant: (1) The court charges the jury that a reasonable doubt of guilt which authorizes an acquittal is one arising from a consideration of the evidence in the case, having regard for both what it shows and what it does not.

<p>Appeal from Circuit Court, Houston County;. H. A. Pearce, Judge.</p> <p>Grady Pilcher was convicted of crime, and appeals.</p>

<p>1. Intoxicating Liquors &wkey;>230(4) — Prosecution — Evidence—Foundation.</p> <p>In prosecution for violation of prohibition law, testimony of two witnesses for the state that accused was in possession of the premises where they found liguor sufficiently connected accused with both the premises and the possession of the liquor to render their testimony admissible, notwithstanding testimony of several witnesses for accused that she was not in possession of such premises.</p> <p>2. Intoxicating Liquors <&wkey;238(2) — Prosecution — Question for Jury.</p> <p>In prosecution for violation of prohibition law, testimony of state’s witnesses as to finding liquor on accused’s premises held sufficient to go to the jury and, if believed, to convict.</p> <p>3. Criminal Law <&wkey;1121(2) — Appeal—Record— Refusal of Affirmative Charge.</p> <p>Where all the evidence is not set out in the record, error cannot be predicated upon refusal to give the general affirmative charge for accused, since the appellate court will presume that omitted evidence justified such refusal. Bricken, J., dissenting.</p>

<p>1. Criminal Law <&wkey;678(l) — Election Between Acts Charged.</p> <p>Where there is only one count in an indictment for violation of the prohibition law, the state may be required to elect which transaction it will rely on for conviction, where witnesses testify to several sales of intoxicating liquors.</p> <p>2. Indictment and Information &wkey;>132(2)— Election of Offense by State — Alternative Acts Constituting a Violation.-</p> <p>Under an indictment for selling, offering for sale, keeping for sale, or having in possession for sale intoxicating liquors, the state cannot be required to elect under which alternative it would proceed; Acts 1915, p. 30, § 29%, authorizing an indictment to state in the alternative several acts of a kindred nature that constitute a violation of the statute.</p>

<p>1. Contracts <&wkey;187(l), 330(3) — Benefit of Third Person — Employment of Physician.</p> <p>Where a steel and iron company deducts a certain sum monthly from the wages of married employés, for which it obligates itself to render medical services to them and their wives, and employs a “company doctor” to render such services for a percentage of such deductions, the contract thus made by an. employé with the company and the doctor is one for his wife’s benefit as well as his own, on breach of which she may sue both the company and the doctor in her own name, either for breach of contract, or for negligent failure to perform the duty arising therefrom.</p> <p>2. Contracts <&wkey;303(l) — Excuse for Failure to Perform Contract.</p> <p>An employing corporation and the “company doctor” could not refuse to perform their contract to render medical services to an employe’s wife because the employé exercised his right to call in another physician, for the husband was under no duty to notify the company doctor that he would call in another physician, nor to employ only such physician as was acceptable to the professional taste of the company doctor.</p> <p>3. Damages <@=»140 — Personal Injury-Amount.</p> <p>In action by an employe’s wife against employing corporation and the “company doctor” for failure to render to her medical services under contract with her husband, verdict for plaintiff for .$300' was not excessive, where the jury was authorized to find that she suffered, from an abscess, great physical pain and mental anguish for three or four days, which could probably have been prevented by the defendant doctor.</p> <p>4. Appeal and Error <&wkey;721(l) — Joint AsSIGNMENT OF ERRORS.</p> <p>Where errors are jointly assigned by appellants, to be available to any, injury must he shown to all.</p> <p>5. Appeal and Error <&wkey;1170(l) — Harmless Error.</p> <p>Even if rulings were erroneous, yet, the appellate court not being satisfied that such rulings affected the substantial rights of the parties, rule 45 (175 Ala. xxi, 61 South, ix) would forbid a reversal.</p>

W. Plaralson, Judge. Action by Jud Cavin against the Tennessee, Alabama & Georgia Railway Company for damages for killing dogs. Judgment for plaintiff, and defendant appeals.

<p>1. Continuance <&wkey;3 — Court’s Failure to Dispose of Case During Term.</p> <p>The court’s failure to dispose of the ease during the term operated as a continuance, under the general order of continuance.</p> <p>2. Judgment <&wkey;272 — Entry After Term-Statute.</p> <p>Under Acts 1915, p. 707, after the expiration of the term, the trial court was without authority to enter judgment, unless the term was prolonged by order for an adjourned term, and the court, having- adjourned for the term at which trial was had, was without authority to enter judgment without another trial.</p>

<p>1. Intoxicating Liquors ¡&wkey;126 — Sale by Druggists.</p> <p>Acts 1915, p. 4, § 7, permitting a registered or licensed pharmacist to use alcohol in prescriptions or other medicines, the sale of which would not subject him to payment of the special tax required of liquor dealers by the United States, clearly manifests the legislative intent not to embrace within the prohibitive terms of the statute medicines authorized by and compounded in accordance with the formulas prescribed by the standard authorities, the sale of which would not subject the seller to the payment of the special tax required of liquor dealers by the United States.</p> <p>2. Intoxicating Liquors &wkey;>126 — Sale by Druggists.</p> <p>A druggist compounding essence of Jamaica ginger in accordance with the formula prescribed by “The Pharmacopoeia” and by “The United States Dispensatory,” and selling it as a medicine, held within the proviso of Acts 1915, p. 4, § 7, permitting a druggist to use alcohol in compounding medicines, the sale of which do not subject him to the payment of the federal liquor tax.</p> <p>3. Intoxicating Liquors <&wkey;126 — Sale by Druggists.</p> <p>• The lawful act of compounding, essence of Jamaica ginger in form which could hot be used as a beverage, and selling it in due course of business, could not be rendered unlawful by the conduct of a purchaser in diluting the medicine and taking it in excessive quantities and with excessive frequency whether as a medicine or as a beverage.</p>

P. Almon, Judge. Action, by D. M. Hudson against the Aux-ford Brown Ore Company for damages for the death of a mule. Judgment for plaintiff, and defendant appeals. The third count is as follows: Defendant owns and is in possession of a slush pond in Franklin county, Ala., filled with slush, mud, washings, from its iron ore washer.

<p>Chattel Mortgages &wkey;?87 — Recordation— Statute.</p> <p>Where the mortgagor of a mule lived in Morgan county, while the barn, lot, and pasture in which the mule was kept was in Cullman county, and the mule was never kept in Morgan county, but at all times kept in Cullman county, except when the mortgagor had it in Morgan county for temporary use, Code 1907, § 3376, providing for the recordation of conveyances of personal property to secure debts in the county in which the grantor resides, and also in the county where the property is at the date of the conveyance, unless the property is immediately removed to the county of the mortgagor’s residence, required the recording of the mortgage in both counties for it to constitute constructive notice.</p>

A. Pearce, Judge. Assumpsit by the Merchants’ National Bank of Middletown, N. Y., against the Bank of Madrid. Judgment for plaintiff, and defendant appeals.

<p>1. Justices of the Peace <&wkey;174(3) — Appeal —Amendment of Pleadings — Effect.</p> <p>In an action commenced in justice court, the filing in the circuit court of the complaint on which the case was tried was an abandonment of the complaint filed in the justice court. /</p> <p>2. Bills and Notes <&wkey;467(2) — Actions — Complaint — Transfer.</p> <p>Code 1907, § 2489, requires actions on promissory notes to be brought in the name of the person having the legal title. Section 4985 provides that an instrument is negotiated when it is transferred in such manner as to constitute the transferee the holder thereof, and that, if payable to order, it is negotiated by the indorsement of the holder, completed by delivery. Held that, in an action on a note payable to the order of a third person, a complaint alleging that it had been transferred to plaintiff for value, but not alleging the method or mode of the transfer, was insufficient.</p> <p>3. Bills and Notes <&wkey;497(3) — Actions— Burden of Proof — Payment of Value.</p> <p>Plaintiff, suing on a note payable to a third person and alleging that it was transferred to him for value, was bound to prove this material allegation.</p> <p>4. Bills and Notes <&wkey;525 — Actions—Sufficiency of Evidence — Payment of Value.</p> <p>In an action on a note payable to the order of a third person, evidence hold to show that no value was paid for the note, but that it was simply indorsed to plaintiff by the payee, in order that plaintiff might obtain the interest he claimed to have therein.</p> <p>5. Bills and Notes <&wkey;353 — Bona Pide Purchasers — Payment of Value.</p> <p>Where plaintiff, on the indorsement of a note to him by the payee, parted with nothing of value and did not change his position in the slightest, he was not an innocent purchaser for value without notice, and the note was subject in his hands to all the defenses that the maker might have had against the original holder.</p> <p>6. Appeal and Error <&wkey;1170(3) — Harmless Error — Pleadings.</p> <p>Where, in an action on a note which plaintiff alleged had been transferred to him for value, he failed to show the payment of value, the failure to allege the method or mode of transfer could not be cured by the application of rule 45 (61 South, ixi), providing that no judgment will be reversed for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it appears that the error complained of has probably injuriously affected substantial rights of the parties.</p>

<p>Appeal and Error <&wkey;1015(2) — Granting New Trial — Credibility oe Witnesses.</p> <p>An order granting a now trial where the evidence is in- sharp conflict will not be disturbed.</p>

<p>1. Landlord and Tenant &wkey;>101 — Termination of Lease by Destruction of Building — Partial Destruction.</p> <p>The partial destruction, of a building does not terminate a lease which provides for termination if the premises are destroyed.</p> <p>2. Appeal and Error &wkey;>1012(l) — Landlord and Tenant <&wkey;233(2) — Review—Finding of Fact.</p> <p>In an action for rent, whether the premises had been rendered untenantable by partial destruction, the lease providing that, if the house should be destroyed, or become untenantable by fire, the rent should cease from the date, was a question of fact, a finding on which will not be disturbed unless the facts plainly and palpably show the conclusion is contrary to the weight of the evidence.</p> <p>3. Appeal and Error <&wkey;1011(l) — Review-Questions of Fact.</p> <p>In an action for rent, the question of the forfeiture of future rent under the surrender and abandonment of possession by the tenants, and also the question of eviction by the landlord, were questions of fact determined by the trial court on disputed evidence, which cannot be reviewed.</p>

<p>Appeal from Circuit Court, Jefferson County; J. E. Blackwood, Judge.</p> <p>Action by the Oden-Elliott Lumber Company against the Louisville •& Nashville Railroad Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Trial <&wkey;252(ll) — Injuries to Servant — Submission of Question of Contributory Negligence.</p> <p>In a railroad servant’s action for injuries, in the absence of all evidence tending to prove plaintiff was negligent, the court properly refused to submit to the jury the question of contributory negligence, as requested by the railroad.</p>

Action by W. E. Bowen against the Western Union Telegraph Company for damages for a failure to deliver to Bowen’s wife money sent her by him through the medium of the telegraph company. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear. The following charge was given for plaintiff: “The court has charged you that you cannot assess any damages for physical pain or any punitive damages.

<p>1. Principal and Agent &wkey;>24 — Existence oe Agency — Question por Jury.</p> <p>Evidence in action to recover for cotton sold by plaintiff to T. held sufficient to go to the jury on the issue of T. having been defendant’s agent in the purchase.</p> <p>2. Sales <&wkey;245 — Cotton—Place oe Resale —Title—Question for Jury.</p> <p>Evidence in action to recover for cotton sold by plaintiff to T. in Georgia for cash, but not paid for, so that under Civ. Code Ga. 1910, I 4126, title did not pass, held sufficient to go to the jury on the issue of T. having resold to defendant in that state, so as to render defendant liable to plaintiff therefor. .</p> <p>3. Sales <@^234(1) — Cotton—Place of Resale-Liability to Original Seller.</p> <p>If T., having in Georgia purchased cotton from plaintiff, for cash, but without paying for it, so that under Civ. Code Ga. 1910, § 4126, title did not pass, resold in that state to defendant, and it was there stored as the property of defendant, and it was there intended as between defendant and T. that title should pass to defendant when so stored, the transaction is governed by the laws of Georgia, and defendant is liable to plaintiff.</p> <p>4. Sales &wkey;>234(l) — Cotton—Place op Resale-Liability to Original Seller.</p> <p>If cotton purchased by T. for himself of plaintiff in Georgia, for cash, but without paying for it, so that under Civ. Code Ga. 1910, § 4126, title did not pass, was shipped as T.’s property, to Alabama, and draft drawn with bill of lading attached, and it was the intention of T. and defendant that defendant should not acquire title till draft was paid, and defendant paid it in Alabama, without knowledge or notice that T. had not acquired title, the transaction would be governed by the laws of Alabama, and defendant would not be liable to plaintiff,</p> <p>5. Sales <&wkey;>221 — Purchase—Lack op Title —Knowledge or Notice.</p> <p>One purchasing and paying for cotton with knowledge or notice that the seller is not the owner, and in disregard of tho owner, and in disregard of the owner’s rights, is liable to the owner as for a conversion.</p> <p>6. Principal and Agent <&wkey;189(4) — Purchase by Agent — Recovery Against Principal-Pleading and Evidence.</p> <p>T. having been the agent of defendant in the purchase of cotton from plaintiff, it is not necessary for recovery from defendant to show that it had disposed of the cotton and converted it into money; there being a count for goods sold.</p> <p>7. Trial <&wkey;168 — Sufficiency op Evidence —Mode op Testing.</p> <p>Sufficiency of plaintiff’s evidence may not be tested by motion to exclude all of it.</p>

' Appeal from Circuit Court, Greene County; A. S. Van de Graaf, Judge. Mandamus .by Mrs. Carrie McGee against the Butaw Ice, Water & Power Company. From an adverse judgment, respondent appeals. The petitioner in the circuit court (appellee here) filed her petition in the circuit court of Greene county against the appellant, praying a writ of mandamus to compel the appellant (respondent in the court below) requiring it to do certain things.

H. Alston, Judge. Jim Brannon was convicted of vagrancy and lie appeals. The defendant was charged by affidavit, in the language of the statute, with the offense of vagrancy, was convicted, and from the judgment of conviction he appeals. On the trial, the defendant demurred to the indictment, assigning the grounds that facts constituting the offense were not set out, and that the act is violative of the Constitutions of the state and of the United States.

<p>Appeal from Circuit Court, Franklin County; C.»P. Almon, Judge.</p> <p>Action by T. J. Willis against the Wilson Mercantile Company. From a judgment for defendant, plaintiff appeals.</p>

Appeal fi'om Circuit Court, St. Clair County; J. E. Blackwood, Judge. Action by E. E. Florey and another, partners doing business as the Vincent Mercantile Company, against B. S. Davis and others. Judgment for plaintiffs, and defendants appeal.

W. Pearson, Judge. Action by J. W. Emfinger against the Seaboard Air Line Railway Company for damages. Judgment for plaintiff, and defendant appeals. The following are the assignments of error referred, to: (2) Objection by defendant to the opening statement of plaintiff’s counsel to the jury that plaintiff expected to show, among other things, that the railroad company did not have anybody at the crossing to warn plaintiff.

Action of detinue for the recovery of personal property by the Evans Furniture Company against Julia Meyers. Judgment for defendant, and plaintiff appeals.

Gilder, Judge. Action by Bessie C. Minge against Walter E. Bailey. Judgment for plaintiff, and defendant appeals.

P. Almon, Judge. Action by J. B. Pierce against the Auxford Brown Ore Company. From a judgment for plaintiff, defendant appeals. Action on -the common counts for work and labor done and on account.

L. Brewer, Judge. Action by N. II. Graham against Alex: Wall. Judgment for defendant, and plaintiff appeals. Action of assumpsit by the appellant against the appellee. Prom a judgment for defendant, plaintiff appeals.

<p>Appeal from Law and Equity Court, Mobile County; Saffold Berney, Judge.</p> <p>Action by Jesse Hudson against the Southern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Insurance 3=040(2) — Health Policy — Misrepresentations.</p> <p>Pleas setting up insured’s misrepresentar tions do not avoid the policy and are demurrable under Code 1907, § 4572, unless they were made with actual intent to deceive or unless the risk be increased.</p> <p>2. Appeal and Error 3=1040(7) — Harmless Error — Pleadings.</p> <p>Any error in sustaining a demurrer to certain of.defendant’s.pleas is harmless, where the same defense was available under another plea.</p> <p>3. Evidence 3!=509 — Medical Testimony-Duration op Disability.</p> <p>In an action on a health policy, a qualified physician familiar with plaintiff’s ailment and who had actually treated him may express his opinion regarding the probable duration of plaintiff’s disability.</p> <p>4. Insurance 3=055(2) — Misrepresentations — Admissibility op Evidence.</p> <p>On issue whether plaintiff insured made false representations in his application, evidence that defendant insurance company’s agent filled out the application is admissible.</p> <p>5. Trial 3=120(2) — Argument op Counsel —Support in Evidence.</p> <p>In action on a health insurance policy, argument of plaintiff’s counsel that defendant had searched physicians’ records throughout the county to get something on plaintiff, etc., held not reversible error, where there was evidence that defendant extensively investigated plaintiff’s previous medical treatments.</p> <p>6. Insurance 3=009 (7)— Health Policy — Instructions..</p> <p>In an action on a health policy, an instruction that plaintiff could only recover premiums paid if he made misrepresentations increasing the risk held not erroneous, where the plea setting up such misrepresentations tendered the premiums.</p> <p>7. Appeal and Error 3=997(3) — Directed Verdict — Jury Question.</p> <p>Refusing a requested affirmative charge for defendant is not reversible error where the evidence presents a jury question.</p> <p>8. Appeal and. Error 3=1005(2) —New Trial-Jury Question.</p> <p>Overruling a motion for new trial is not reversible error where the evidence presents a jury question.</p>

Miller, Judge. Action by I. S. Brothers against the Illinois Central Railroad Company for damages for failure to promptly deliver a gin outfit. From a judgment in favor of the plaintiff, awarding nominal damages, plaintiff appeals.

B. Smith, Judge. Action by Barbara Hoffman against the Southern Indemnity Association upon an insurance policy. Judgment for plaintiff, and defendant appeals.. The complaint sufficiently appears.

C. B. Gwin, Judge. Action by John S. Gillespy against E. A. Little. Judgment for defendant, and plaintiff appeals.

Judge. Action by J. O. Barrett against Hudson & Thompson. Judgment for plaintiff, and defendant appeals. The plaintiff sued on the common counts for account, account stated, and money had and received. The defendant pleaded in short by consent the general issue, with leave to give in eyidence any matter as if the same had been specially pleaded.

<p>Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge.</p> <p>Action by H. T. Burns against A. R. Cline. Judgment for defendant, and plaintiff appeals.</p>

G. Crow, Judge. Action by I. O. Ewing against the Barbour Plumbing, Heating & Electric Company. From judgment for plaintiff, defendant appeals. This is an action for damages, brought by the appellee against the appellant, for a trespass to realty, and for conversion. From a judgment in favor of plaintiff, the defendant appeals.

Wert, Judge. W. D. Tanner sued J. B. Bryant in the justice court and recovered judgment thereon, which was appealed by Tanner to the law and equity court of Morgan county, where judgment was again rendered nil dicit against said Tanner and the sureties on his appeal bond. Tl^e judgment ivas entered February 10, 1916.

B. Poster, Judge. Action by Mrs. N. J. Lawrence against tlie Alabama Great Southern Railway Company for damages for carrying her past her destination. Judgment for plaintiff and defendant appeals.

Browne, Judge. Action by the Camp Lumber Company against the McGowin Dumber & Export Company. From a judgment for plaintiff, defendant appeals. Action in assumpsit by the plaintiff, appellee here, against the defendant, appellant here, for a breach of contract. From a judgment in favor of the plaintiff, defendant appeals.

<p>1. Shipping <&wkey;129 — Carriage op Goods — Contributory Negligence.</p> <p>If, on account of high water, a shipper could not have loaded stave bolts without building staging so expensive as to make loading in such manner impracticable wlien a barge was first furnished by defendant, he was not negligent in not adopting such method, so as to bar recovery for defendant’s later failure to furnish a barge.</p> <p>2. Witnesses <&wkey;38S(2) — Impeachment — Foundation.</p> <p>In the absence of a proper foundation, a witness cannot be impeached by proof of prior inconsistent statements.</p> <p>3. Appeal and Error <&wkey;1050(l) — Admission op Evidence — Harmless Error.</p> <p>In an action for damages for failure to furnish a barge for transportation of stave bolts, evidence that plaintiff offered to turn the holts over to defendant carrier for the purpose of disposing of them, offered on the theory that it was plaintiff’s duty to minimize damages, could not have prejudiced defendant.</p> <p>4. Appeal and Error <&wkey;1010(l) — Review-Findings oe Fact.</p> <p>. Where there is evidence in the record which, if believed, tends to support the conclusions reached by the trial court, who heard the witnesses and had a better opportunity to judge as to their credibility than the court on appeal, the conclusions will not be disturbed.</p>

C. Brickell, Judge. Action by Henry Ehrensperger against E. C. Kinney. Judgment for plaintiff, and defendant appeals. The plaintiff in the court below (appellee here), brought his action against the defendant, declaring in nine counts.

<p>Appeal from Law and Equity Court, Morgan County; Thomas W. Wert, Judge.</p> <p>Action by Jennie W. Knight against Harris, Cortner & Co., for the price of cotton. Judgment for plaintiff, and defendant appeals.</p> <p>The facts sufficiently appear.</p> <p>(A) The defendant is not liable to plaintiff for the cotton delivered to him by plaintiff on the price at which defendant sold the cotton.</p> <p>(C) If you are reasonably satisfied from the evidence in the case that plaintiff held open a settlement of her cotton until cotton went down to 8 cents per pound; and until she was called upon to put up margins, and then declined and threatened to sue and did sue, your verdict should not be for plaintiff.</p> <p>Charge E sufficiently appears. Charge 8 does not appear in the record, but charge B is as follows:</p> <p>Before plaintiff can recover she must reasonably satisfy your minds upon the evidence that she demanded a settlement, or closing out of her cotton, between June 9 and 30, 1916.</p>

<p>Appeal from Circuit Court, Chilton County; A. H. Alston, Judge.</p> <p>Assumpsit by the Farmers’ Bank & Trust Company against J. R. Parnell and another. Judgment for plaintiff, and the defendant named appeals.</p> <p>The. action was against J. R. Parnell and W. C. Gable, as former partners, and claims upon a promissory note with waiver of exemptions and a claim for attorney’s fee. Defendant Parnell set up that he did not agree in writing or otherwise to waive his exemptions, and also that he did not agree to pay any attorney’s fee, all of which was duly sworn to. The assignments of error referred to are as follows:</p> <p>(7) The court erred in its oral charge to the jury as follows: “Now, I charge you that, when this partner told him that he had made the note, the mortgage, and that it was for money to pay for the teams that was used for the partnership, and he acquiesced in it, that was a ratification; it was a ratification that bound him to all of the terms that were set out in the note, that is, as to waiver of exemptions, and as to the payment of a reasonable attorney’s fee.”</p> <p>(8) “Now there is a thing for you to determine in this case, the fact that this check was sent in. This paper was not met at maturity according to Mr. Parnell’s statement, but the bank extended the payment and charged it against him, the amount which was the interest due upon that paper, and that the check went into him through the regular course of business, canceled. He says he raised no protest against that. I charge you that was another ratification.”</p> <p>(9) “If you are reasonably satisfied from this evidence that the statement of Parnell was correct, that he was informed by Gable, his partner, that he had given to the bank a mortgage, that mortgage was introduced in evidence, and that it was for the purpose of paying for the teams mentioned therein, it would have been his duty to have inquired as to the stipulations to see what that note really contained, and, not doing this, it was a ratification by acquiescence, that would have been a sufficient ratification to make him liable for this money, plus the interest, and with a waiver of exemption.”</p> <p>(10) “Mr. Parnell tells you that he was not told that there was a note due. Well, you can infer from your own common knowledge and business dealings of this kind whether Mr. Parnell did not know that a note had been given when told by his partner that he had given a mortgage to secure this note.”</p>

<p>Petition for "writ of prohibition by the State, on the relation of W. L. Martin, as Attorney General, against Gaston Gunter, as Judge of the Fifteenth Judicial Circuit.</p>

<p>1. Pleading <&wkey;205(2) — Demurrer — Sufficiency.</p> <p>Under Code 1907, § -5340, requiring demurrers to specify objections, a general demurrer does not raise the point that a count fails to state a cause of action.</p> <p>2. Trial <&wkey;330(3) — 'General Verdict — Pleadings.</p> <p>A general verdict is not invalidated by the failure of one count to state a cause of action where there are good counts to which it may be referred.</p> <p>3. Appeal and Error <&wkey;1170(3) — Reversal — Harmless Error — Sustaining Demurrer.</p> <p>Any error in sustaining a demurrer to a plea raising the general issue is harmless where defendant had the benefit of the general issue, under Supreme Court rule No. 45 (175 Ala. xxi, 61 South, ix), prohibiting reversal for errors not injuriously affecting substantial rights.</p> <p>4. Attorney and Client <&wkey;166(2) — Action for Compensation — Admissibility of Evidence.</p> <p>In an attorney’s action for compensation, where defendant introduced an entry in plaintiff’s book showing that defendant’s wife was a party to the action involved, plaintiff may introduce a further entry indicating his employment by defendant.</p> <p>5. Appeal and Error <&wkey;1078(l) — Assignments of Error — Waiver.</p> <p>An assignment of error unsupported by authority or argument is waived.</p> <p>6. Attorney and Client 4&wkey;166(3) — Action for Compensation — Admissibility of Evidence.</p> <p>In an attorney’s action for work and labor, evidence regarding the amount involved in the controversy for which the charge was made is competent to establish the amount of responsibility assumed by plaintiff.</p> <p>7. Attorney and Client ¡&wkey;166(4) — Action for Compensation — Admissibility of Evidence.</p> <p>In an attorney’s action for compensation, evidence of conferences with other parties in defendant’s absence regarding the pending litigation and settlement was competent to show that plaintiff was doing the work for which he was employed.</p> <p>8. Attorney and Client i&wkey;166(l) — Action for Compensation — Admissibility of Evidence.</p> <p>In an attorney’s action for compensation, evidence regarding the time a third party spent on the litigation in question held immaterial.</p> <p>9. Frauds, Statute of <&wkey;23(4) — Answering for Another’s Debts — Attorney’s Action for Compensation.</p> <p>Code 1907, § 4289, invalidating; oral promises to answer for another’s debt,_ is inapplicable to a husband’s original promise to pay an attorney for defending his wife’s interests during litigation.</p> <p>10. Appeal and Error <&wkey;699(2) — Questions Reviewable — Instructions.</p> <p>A charge not incorporated in the record as required by Acts 1915, p. 815, is not reviewable.</p>

<p>Appeal from Circuit Court, Cullman County; R. C. Briekell, Judge.</p> <p>Action1 by Hamner & Son against. G. W. Johnson. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Divorce ,<&wkey;305 — Custody of Children— Disobedience of Decree.</p> <p>One by removing children from a state in violation of the decree of a chancery court of that state intrusting them to his care placed himself in contempt of court.</p> <p>2. Divorce <&wkey;303(l) — Custody of Children ' Modification of Orders — Loss of Jurisdiction.</p> <p>One by removing children from a state in violation of the decree of a chancery court of that state intrusting them to him did not deprive that court of jurisdiction over the parties and the children, so as to prevent it from modifying the decree relative to custody of the children.</p> <p>3. Divorce &wkey;303(l) — Custody of Children —Finality of Decree.</p> <p>While a decree as to custody of children is not final so as to prevent modification on change of conditions, it is final as to rights of the parties based on the facts and .circumstances_ existing at the time of and prior to its rendition.</p> <p>4. Courts <&wkey;511 — Conflicting Jurisdictions — Custody of Children — Comity.</p> <p>The court of another state having at instance of the father assumed jurisdiction to protect children as infant children within the jurisdiction of that state, and they having become wards of that courts and the father in violation of the decree intrusting the children’s custody to him, having removed them from that state, the courts of Alabama, recognizing the sovereign authority of the other state in respect thereto, as a matter of comity, will refuse to deal with the question relating to the future welfare of the children.</p> <p>5. Habeas Corpus <&wkey;99(l) — Custody of Children — Return to Other State.</p> <p>A mother armed with the duly authenticated decree of a court of competent jurisdiction of another state awarding custody of children to her, as the agent and trustee of that court and state, is entitled to their custody, for purpose of returning them to that jurisdiction.</p> <p>On Application for Rehearing.</p> <p>6. Contempt <§=380 — Punishment—Denial of Privileges as Litigant.</p> <p>A party in contempt will not be heard on anything pertaining to the merits of a cause.</p>

<p>Appeal and Error <&wkey;1078(l) — Scope — Bribes on Appeal.</p> <p>Assignments of error not argued or insisted upon in the'i>rief árfi Waived.</p>

Action by tbe Ollinger & Bruce Dry Dock Company against tbe Hartford Fire Insurance Company for damages for breach of contract for failure to insure plaintiff’s property. Judgment for plaintiff, and defendant appeals.

Will Cain was convicted of murder, and appeals. The facts concerning the venire sufficiently appear.

<p>1. Railroads <&wkey;337(l) — Crossing Accident — Negligence—Equipment.</p> <p>In an action against a railroad for damages from a collision at a highway crossing, where it was shown without dispute that the engineer made no effort to stop, it is immaterial that the engine was defectively equipped for stopping.</p> <p>2. Railroads <&wkey;350(32) — Crossing Accident — Proximate Cause — Question for Jury.</p> <p>Whether failure to give statutory signals was the proximate cause of a collision at a railroad crossing, held, a question for the jury.</p> <p>3. Railroads <&wkey;350(l) — Collision at Crossing — Last Clear Chance — Question for Jury.</p> <p>Whether enginemen discovered a runaway team approaching a crossing, held a question for the jury.</p> <p>4. Railroads c&wkey;322 — Collisions at Crossing — Duty to Stop.</p> <p>It is the duty of an engine crew after discovering a runaway team approaching a crossing to use all the means within their power to prevent collision; failure to do so being negligence.</p> <p>5. Railroads <&wkey;339(l) — Collisions at Crossings — Runaway Team — Wantonness.</p> <p>If an engineer or fireman discovered a runaway team approaching the track under such circumstances as to impress upon them the knowledge that the driver had lost control and would run upon the tracks and probably be struck, and if either were conscious of the peril, and with reckless disregard failed to use all their power to avoid a collision, the peril being discovered in time, they were guilty of wantonness.</p> <p>6. Railroads <&wkey;350(13) — Collisions at Crossings — Contributory Negligence — Question for Jury.</p> <p>Whether a teamster was guilty of such contributory negligence as would bar recovery for simple negligence of trainmen in failing to give statutory signals, held a question for the jury.</p> <p>7. Railroads <&wkey;328(S) — Collisions at Crossings — Duty to Stop, Look, and Listen.</p> <p>A teamster who is unacquainted with a road and does not know in the night that he is approaching a railroad track is not negligent in not stopping, looking, and listening.</p> <p>8. Trial <&wkey;253(4) — Instructions Ignoring Issues — Wantonness.</p> <p>Where the question of wantonness was for the jury, it was proper to refuse to instruct not to find for plaintiff, unless defendant was guilty of negligence and plaintiff free from contributory negligence.</p> <p>9. Trial &wkey;>253(4) — Instructions Ignoring Issues — Collisions at Crossings — Wantonness.</p> <p>An instruction that if a team was running away and ran into the side of the engine at a crossing to find for defendant was properly refused as pretermitting negligence of trainmen after discovery of the peril, and wantonness. 10. Railroads <&wkey;34S(2) — Crossings —</p> <p>Negligence — Evidence—Insufficiency.</p> <p>Evidence held insufficient to sustain a finding that an engine ran into a wagon at a crossing; it being a more reasonable conclusion that the team while running away ran into the side of the engine.</p>

Ferguson, Judge. Action by S. P. Washburn against Johnston Bros. Co. and others, for conversion. Judgment for plaintiff, and defendants appeal. Certiorari denied 201 Ala.698, 77 South.1002. The facts sufficiently appear.

<p>Appeal from Law and Equity Court, Mobile County; Saffold Berney, Judge.</p> <p>Action by Elijah Thomas against the Mobile Light & Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.</p> <p>Action by Thomas McWilson against J. Turner Rhodes. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Damages <&wkey;160 — Pleading—Expense Incurred.</p> <p>Evidence that plaintiff incurred expense of employment of counsel to protect him against the unlawful arrest and malicious prosecution was properly excluded, where such expense was not specially claimed as damage in the complaint for false imprisonment and malicious prosecution.</p> <p>2. Pleading <&wkey;246(3) — Right to Amend— Subject-Matter.</p> <p>After the court had ruled that evidence of expense incurred by plaintiff in employing counsel to protect him against the unlawful arrest and malicious prosecution was inadmissible because not specifically claimed, it was reversible error to deny the right to amend so as to specifically claim damages for such expense.</p>

P. Heflin, Judge. Mary Pruitt was indicted for murder, and was convicted of manslaughter in the first degree, and she appeals.

Wert, Judge. Action by R. M. Ganter as administrator, against the Louisville & Nashville Railroad Company, for damages for the death of his intestate. Judgment for plaintiff, and defendant appeals. The pleadings sufficiently appear, as does the oral charge of the court. The following are the assignments of error referred to: (10) AfBrmative charge as to count 5. (11) Aflirmative charge as to count 4. (12) Affirmative charge as to count 3.

<p>1. Evidence &wkey;>471(3) — Conclusions—Reliance on Statement.</p> <p>In action for deceit in misrepresenting value of stock of goods, plaintiff could properly testify that he relied on defendant’s statement as an essential fact and not a conclusion.</p> <p>2. Witnesses &wkey;>37(2) — Knowledge oe Witness.</p> <p>In action for deceit by falsely representing value of stock of goods, a half interest in which was sold plaintiff, it was error to permit plaintiff to testify to the value of the goods on the date of the sale as shown by his computations from the books of the business as kept by defendant’s partner, without showing plaintiff’s knowledge of the correctness of such books.</p> <p>3. Sales <&wkey;38(2) — Fbaud—Liability—Sale oe Goods.</p> <p>A vendor of a stock of goods who affirms what he does not know to be true or knows to be false, to the vendee’s prejudice and his own gain, is liable in damages to the vendee.</p>

<p>1. Criminal Law <&wkey;1090(14) — Absence oe Bill oe Exceptions.</p> <p>Although given and refused charges are set out in the record, the court on appeal cannot review and pass upon such charges, in the absence of a bfll of exceptions and the oral charge of the court.</p> <p>2. (Criminal Law <&wkey;1090(l) — Absence oe Bill oe Exceptions.</p> <p>Where the appeal is on the record proper without a bill of exceptions, judgment of conviction will be affirmed, where nothing appears in the record authorizing reversal.</p>

<p>Appeal from City Court of Bessemer; J. C. B. Gwin, judge.</p> <p>Action by Marion Hopson against the Sloss-Sheflield Steel & Iron Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.</p> <p>Action by H. B. AVood, as trustee of the Walker Lumber Company,' bankrupt, against T. S. Hendon. Judgment for defendant, and plaintiff appeals.</p>

J. Curtis, Judge. Action by H. B. AA'ood, as trustee in bankruptcy of the Walker Lumber Company, against the Manchester Saw Mills, to recover a preference within four months before the filing of the bankruptcy proceedings. From judgment for plaintiff, defendant appeals.

Pugh, Judge. Action by the E. & W. Dry Cleaning Company against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals.

Miller, Judge. Action by A. Keller against T. J. Batson and the American Surety Company of New York. Judgment for plaintiff, and defendants appeal, and plaintiff moves to affirm.

<p>Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.</p> <p>Charlie Williams was convicted of violating the prohibition law, and appeals.</p>

<p>Appeal from Circuit Court, Morgan County ; R. C. Brickell, Judge.</p> <p>Assumpsit on an account by W. B. Bean & Co. against J. R. White. Judgment for plaintiff, and defendant appeals.</p> <p>The following are the assignments of error referred to:</p> <p>(3) Overruling demurrers to counts 5 and 6 of the complaint. (4) Overruling demurrer No. 4 to the same counts. (13) Overruling demurrer No. 8 to the complaint. (2) Overruling demurrer No. 2 to counts 5 and 6. (7) Overruling demurrer No. 2 to the complaint. (11) Overruling demurrer No. 6 to the complaint. (12) Overruling demurrer No. 7 to the complaint. (13) Overruling demurrer No. 8 to the complaint. (6) Overruling demurrer No. 1 to the complaint. (8) Overruling demurrer No. 3 to the complaint. (10) Overruling demurrer No. 5 to the complaint. The complaint contained originally four counts, claiming different items sold by plaintiff to defendant at defendant’s request in the name and for the use of the different industries mentioned in the several counts.</p> <p>Demurrers were as follows: (1) The count states no cause of action. (2) It is not shown that defendant promised or agreed to pay the amount claimed. (3) It is not shown but that said goods were furnished to another upon the request of defendant, and it is not shown that the request to furnish said goods was in writing. (4) It is shown that the amount claimed was paid by credits entered in defendant’s favor prior to the institution of this suit. (5) Defendant cannot determine from said complaint what amount is claimed, or is due by defendant to plaintiff. (6) In the fourth count of said complaint, plaintiffs claim various and- different sums as being due by defendant, and admit payment of $492.84, which payments are admitted to have been entered on the several accounts, the basis of said complaint, but do not state what amount or how much credit was given upon each of said accounts. (7) The credits admitted in said complaint more than pay off and satisfy any one demand claimed in any one count of the complaint, and said complaint does not advise defendant as to which demands the several credits so admitted are to be credited upon. (S) The complaint contains four counts, each setting out a separate and distinct demand, and plaintiff admits in said complaint that defendant has paid $492.84, which exceeds any one demand counted upon in said complaint, and the complaint fails to state what part of said credit has been entered or given upon any or either of the demands sued for, so that defendant is not advised as to the amount claimed on any or either of the demands mentioned in said complaint.</p> <p>The complaint was afterwards amended by the additions of counts 5 and 6 which claim for goods, wares, and merchandise sold.by plaintiff to defendant in the name of the Hartsell Electric Light Company, by X It. White for Charles Orr, by X ft. White individually, and for. the Hartsell Head & Stave Mill, during the years 1911, 1912, 1913, and 1914, and for another an additional amount sold by plaintiff to defendant during the same years in the name of the Hartsell Electric Light Company, and Hartsell Head & Stave Mill, on which defendant had paid the sum of $492.84, leaving a balance due of $244.60, and plaintiff avers that defendant is individually liable to plaintiff for said goods so sold to defendant as aforesaid.</p>

<p>Appeal from Circuit Court, Chilton County; A. H. Alston, Judge.</p> <p>Action by W. C. Dyer against J. W. Huff. Judgment for plaintiff, and defendant appeals.</p>

. Action by Max Davis against the Birmingham Waterworks Company. Judgment for plaintiff, and defendant appeals. Action by plaintiff against the defendant for damages for negligently and wantonly disconnecting plaintiff from water supply.

<p>Appeal from Circuit Court, Lawrence County; R. C. Brickell, Judge.</p> <p>Action by Susie Swoope Bynum against John Terry and another. ' From judgment for defendants, plaintiff appeals.</p>

E. Blackwood, Judge. Grover Cleveland was prosecuted for failure to perform road duty, and appeals from adverse judgment.

<p>Appeal from Circuit Court, Elmore County; Leon McCord, Judge.</p> <p>Action between R. H. I-Iays and Lucinda Walker and others. ’ Prom the judgment, Hays appeals.</p>

<p>1. Sales &wkey;>332 — Breach oe Contract — Fixing Damages — Resale.</p> <p>The right of a vendor to resell, on default of the vendee, thereby fixing the quantum of damages he is entitled to recover as the difference between the contract price and the price realized' at the resale, in the absence of express stipulation, is only incident to a contract of sale that has become executed_ on the part of the vendor, and on which ho is entitled to demand the contract price.</p> <p>2. Sales <&wkey;371 — Remedies oe Vendor on Default — Executory Contract.</p> <p>If a sale contract is executory on the vendor’s part and he desires to avail himself of all the remedies incident to an executed contract, he must fully perform the contract, and, if the contract contemplates a tender of the goods, must make such tender.</p> <p>3. Sales <&wkey;369, 384(2) — Remedies of Vendor on Default — Executory Contract-Measure' of Damages.</p> <p>On vendee’s default in executory contract for sale, if the vendor does riot elect to make complete performance so as to convert the contract into an executed contract, he is left to the option of treating the contract as rescinded or bringing an action for breach, in which action the measure of damages would be the difference between the agreed price and market price at the time of the breach, with interest, at the place of delivery, or in case the goods are to be specially manufactured and the contract in this respect haS not been performed, the difference between the contract price and the cost of production.</p> <p>4. Sales <&wkey;382 — Resale—Evidence.</p> <p>The fact of resale and the price realized thereat is admissible in action on an executory contract of salo only as evidence tending to show the market value of the goods; and, if it be shown that the goods were sold at a forced sale “under the hammer” at a price greatly less than their market value, such evidence is of little or no probative force.</p> <p>5. .Sales <&wkey;369 —Breach by Vendee —Action on Common Counts.</p> <p>Where contract of sale is breached by vendee, while executory on the part of the vendor, it will not sustain an action on the common counts by the vendor.</p> <p>6. Sales <&wkey;377 — Breach of Contract — Action — Pleading.</p> <p>Plaintiff sued defendant for breach of a special executory contract of sale. The fifth count of the complaint read, in substance: Plaintiff claims of defendant $500 as breach of an executory contract, for that defendant ordered goods to be made to order, should plaintiff accept the order, on condition that defendant would make, a remittance of $250 on account, balance to' become due in 30 days; that defendant agreed to the condition, after which plaintiff proceeded to make the goods, and, after the goods' were made, defendant countermanded and canceled the order, and refused to receive the goods, and plaintiff avers that, while it has performed all its parts of the agreement, defendant has breached .its agreement, in that it has failed or refused to remit the $250 on account as per agreement, and failed and refused to accept the goods after they had been ordered, as was its duty to do, on account of which plaintiff suffered great loss and damages. Held, that the count was demurrable as failing to state the price agreed to be paid.</p> <p>7. Sales <&wkey;378 — Contract — Breach-Pleading.</p> <p>In action by seller for breach of executory contract to sell, pleas, admitting the allegations of the complaint as to contract and price, but alleging that the market price of the goods at the time of the breach, as well as at the time of the acceptance of the order, was equal to or greater than the contract price agreed to be paid by the defendant, and the plaintiff therefore suffered no loss, were demurrable.</p> <p>8. Sales <&wkey;l(3) — Fixing Price.</p> <p>If the goods are sufficiently identified, a complete contract of sale may be made without fixing an absolute price.</p>

<p>1. Appeal and Error <&wkey;699(2) — Review-Instructions — Omission to Set Out General Charge and Refused Charges.</p> <p>Where neither the general charge nor the refused .charges requested by defendant are set out in the record, as is required by Acts 1915, p. 815, the rulings of the court on refusal to give written charges at defendant’s request, and exceptions to a portion of the oral charge, cannot be reviewed.</p> <p>2. Evidence <&wkey;384 —Parol Evidence Affecting Writing — Rental Contract.</p> <p>In an'action for the conversion of mortgaged crops, a witness having testified that the rental contract between landlord and mortgagor was not in writing, he could testify that the mortgagor had rented the premises, and was in possession when the mortgage was executed.</p> <p>3. Evidence <&wkey;370(4) — Documentary Evidence — Proof of Execution of Mortgage by Mortgagor.</p> <p>In an action for the conversion of mortgaged crops, the mortgage was not self-proving, and it was necessary for plaintiff to prove its execution by the mortgagor before it became admissible.</p> <p>4. Appeal and Error <&wkey;8S2(7) — Invited Error-Objection to Offer of Proof.</p> <p>In an action for the conversion of mortgaged crops, where the trial court admitted the mortgage without proof of execution, expressly reserved the right to rule on the question later, and, at the dose of evidence, defendant again called attention to the error by motion to exclude the mortgage on the ground its execution had not been proved, whereupon plaintiff offered to call a witness to make the proof, but defendant objected, and the court sustained the objection, the court’s action in sustaining the objection, doubtless based on the assumption that defendant waived proof of the execution of the mortgage, thus consenting that the trial proceed without the proof, was invited error, of which defendant cannot receive the benefit on his appeal.</p>

B. Blackwood, Judge. Action by J. M. Murphree and another against the Farmers’ Savings Bank for a failure to enter satisfaction on the record of a mortgage executed by plaintiffs to defendant. Judgment for defendant, and plaintiffs appeal.

<p>1. Criminal Law <&wkey;>564(l) — Proof of Venue of Crime.</p> <p>Under Const. 1901, § 143, as to criminal jurisdiction of circuit courts, section 6, and Code 1907, §§ 6694 and 7225, fixing the place at which crimes must be tried, and section 7140, dispensing with necessity of allegation of venue, a failure on the trial to prove that the offense was committed within the territorial limitations, as if there was a precise, positive averment of it, is fatal, if the failure is taken advantage of in a proper and timely manner.</p> <p>2. Courts <&wkey;17 — Jurisdiction.</p> <p>Bringing action in an improper county is hot a jurisdictional defect, where the court has general jurisdiction of the subject-matter; for statutes of venue regulate, not the jurisdiction of the courts, but only the procedure.</p> <p>3. Habeas Corpus &wkey;>27 — 'Grounds—Want' of Jurisdiction — Venue.</p> <p>Under Const. 1901, §§ 6, 143, as to criminal jurisdiction of circuit courts and place of trial, and Code 1907, § 7033, providing for discharge on habeas corpus where the court has exceeded jurisdiction, and sections 6694, 7225, as to place of trial, where accused was held by sheriff of J. county on capias issued by circuit court of B. county, based on indictment in B. county, accused was not entitled to discharge on habeas corpus on ground that B. county circuit court had no jurisdiction because the offense was not committed in that county; for, that court having general jurisdiction of the subject-matter and person of accused, the question whether the offense charged had been committed in B. county was one to be determined upon the trial of the cause in B. county.</p>

<p>Appeal from Circuit Court, Washington County; Ben D. Turner, Judge.</p> <p>Eddie Scott was convicted of assault with a weapon, and- he appeals.</p>

A. McDonald, Special Judge. Action by Hamp McGilvary, by bis next friend, against tbe Central of Georgia Railway Company. On mótion of defendant to retax tbe costs. Motion granted in part, and in part denied, and defendant appeals.

<p>Appeal from Circuit Court, Chilton County ; Leon McCord, Judge.</p> <p>Joe Huff was convicted of trespass after warning, and he appeals.</p>

<p>Appeal from Circuit Court, Dallas County; B. M. Miller, Judge.</p> <p>Action between W. R. Thacker and the City of Selma. From an adverse judgment, Thacker appeals.</p>

C. B: Givin, Judge. Suit by F. B. Buck against tlie Bransford Mills of Kentucky, in which the Owensboro 'Banking Company filed a claim for property attached. From a judgment holding the property subject to attachment, the Banking Company appeals.

<p>1. Pleading <&wkey;177 — Replication as Confession of Plea.</p> <p>In assumpsit on a collateral note wherein defendant’s plea sufficiently set up a want of consideration, plaintiff by a special replication without filing a general replication or joinder of issues thereon, confessed the plea and relieved defendant from the burden of proving it.</p> <p>2. Pledges <&wkey;58(4) — Pleadings — Special Replication.</p> <p>In such case, plaintiff was not entitled to a judgment unless he proved his special replication to the plea.</p> <p>3. Bills and Notes @=^226 — Collateral Promissory Note — -Indorsement—Consideration.</p> <p>Where the collateral security for a note ceased to be satisfactory to the holder before^ maturity and a volunteer indorsed it and neither she nor the maker received any benefit from her indorsement, and the plaintiff suffered no detriment and did not forego any right he had in the original contract, the indorsement was a nudum pactum.</p> <p>4. Bills and Notes &wkey;>246 — “Irregular Indorser” — Liability—Consideration.</p> <p>Where the collateral security of a note became unsatisfactory before maturity, one indorsing it as additional security is termed an “irregular indorser” and assumes an obligation in the nature of a guaranty of the payment of a pre-existing debt.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Irregular Indorser.]</p> <p>5. Guaranty <&wkey;16(3) — Consideration.</p> <p>Where an irregular indorser assumed an obligation in the nature of a guaranty of a preexisting debt, a consideration to him as guarantor or to his principal, other than the debt, is essential to sustain the obligation.</p>

<p>1. Fraud <&wkey;31 — Sale oe Land.</p> <p>One who has been induced to enter into a contract for the purchase of lands by fraud, to his injury, may maintain an action for deceit, and recover such damages as are necessary to compensate him for the injury suffered.</p> <p>2. Fraud <&wkey;25 — Sale oe Land — Title.</p> <p>Fraudulent representation by the vendor with respect to his title or ownership, as well as to matters collateral to the title of the property, such as location, quantity, quality, and condition of the land, the privileges connected with it, or the rents and profits derived therefrom, constitutes such fraud as will support the action for damages for fraud, although a deed with covenants of warranty is delivered, in view of Code 1907, § 2468, providing that fraud by one accompanied with damage to the party defrauded in all cases gives the right of action.</p> <p>3. Trusts <&wkey;136 — “Dry Trusts” — Defect of Deeds.</p> <p>A deed to one “as trustee for” certain persons, which failed to impose active duties, created only a dry trust and vested the title, to the property in the cestui que trust, leaving no interest in the trustee in view of specific provisions of Code 1907, § 3408.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Dry Trust,]</p> <p>4. Fraud &wkey;G4(l) — Issues — Questions for Jury.</p> <p>In an action by a purchaser for the deceit of his vendor in misrepresenting title to the property, jilea of general issue with leave to give in evidence anything that could be properly pleaded made a case for the jury.</p> <p>5. Fraud <&wkey;36 — Defective Title — Subsequent Tender of Good Title.</p> <p>The defendant could not destroy the plaintiff’s cause of action predicated on fraud committed by the defendant in misrepresenting his title in the sale of the property by tendering, after the right of action had accrued, a complete title to the property.</p> <p>6. Afpeal and Error <&wkey;1053 (3) — Harmless Error — Evidence — Effect of Instructions.</p> <p>Error, if any, in admitting evidence which should have been excluded was neutralized by affirmative instruction denying plaintiff’s right to recover for losses sustained in the transaction covered by the erroneous admittéd evidence.</p> <p>On Rehearing.</p> <p>7. Pleading <&wkey;383 — General Issue with Leave.</p> <p>In action for damages by fraud of vendor, wherein he pleaded the general issue with leave to give in evidence anything that could be properly pleaded, it was admissible for defendant to show that the cause of action was barred by the statute of limitations of one year, or, under Code 1907, § 4852, as to computation of time, for plaintiff to show that the action was brought within one year after the discovery of the fraud.</p>

Turner, Judge. Assumpsit by W. P. Gewin against the Choctaw Bank. Judgment for plaintiff, and defendant appeals. Plaintiff claims under a promissory note niade by M. L. and C. P. Mitchell, payable to the Choctaw Bank, and indorsed for value received to plaintiff. It appears from the complaint that the note is due and payable January 15, 1911, and was indorsed to plaintiff by defendant on February 14, 1911. The further history of the transaction appears from the opinion.

<p>Intoxicating Liquors <&wkey;238(l) — Interstate Transportation — Jury Question.</p> <p>Evidence that accused was employed to transport intoxicating liquors through Alabama in transit from Georgia to Florida by automobile in order to make a test case and that such method of transportation was unusual held to make a jury question whether defendant’s engagement in interstate commerce was bona fide or a subterfuge to avoid the Alabama prohibition laws.</p>

<p>1. Municipal Corporations <&wkey;672 —Taxation — Statutory Provisions — -Repeal.</p> <p>Section 47 of the old charter of Birmingham, authorizing the city to require all male inhabitants between certain ages to work upon the streets for at least five days in each year, provided that each person so required to work might relieve himself therefrom by paying, a sum to be fixed, not exceeding $5, was repealed by Code 1907, § 1336, which is a part of the present charter, and which provides that the inhabitants of any municipality may be required to pay a street tax of not exceeding $5 a year, as this is a complete revision of the subject of street taxes, and there is a marked difference between the two provisions.</p> <p>2. Municipal Corporations &wkey;>672 — ^Taxation — Nature—“Tax.”</p> <p>Under Code 1907, § 1336, providing that the inhabitants of any municipality may be required to pay a street tax of not exceeding $5 a year, the burden so imposed is a “tax,” and not the exaction of a public duty, since the requisition of labor for working the public highway, though conmutable in money, is the exaction of a public duty, and not taxation; but a levy of money for application to the public highway is taxation, even though labor is ultimately accepted in lieu of the money primarily required.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Tax.]</p> <p>3. Taxation &wkey;58 — Strict Construction-Revenue Laws.</p> <p>Statutes authorizing the levy of taxes are to be strictly construed, and not extended by implication, nor is their operation to be enlarged so as to embrace matters not specifically pointed out, though standing upon a close analogy.</p> <p>4. Municipal Corporations <&wkey;672 — Taxation — Powers of CITY.</p> <p>Code 1907, § 1336, docs not authorize a city to require a citizen to work on the street, or' to impose a tine for the failure to so work, or to pay the street tax thereby authorized.</p> <p>5. Municipal Corporations &wkey;>07 — Powers —Implied Powers.</p> <p>Municipal corporations have no implied power, but only such power as has been expressly granted to them.</p> <p>6. Municipal Corporations <&wkey;524 — Taxation — Powers of City.</p> <p>Code 1907, § 1251, provides that municipal corporations shall have power to adopt ordinances and resolutions not inconsistent with law to carry into effect or discharge the powers and duties conferred upon them, and to provide for the safety, preserve the health, promote the prosperity, and improve the morals, comfort, and convenience of the inhabitants of the municipality, and enforce obedience by fine or imprisonment, or both. Acts 1015, p. 296, § 6, contains substantially similar provisions. I-Ield, that neither of these acts authorizes a city to provide by ordinance for fining or imprisoning a person delinquent in the payment of his street tax.</p> <p>7. Municipal Corporations <&wkey;G24 —Powers — Construction of Statutory Provisions.</p> <p>Code 1907, § 1251, and Acts 1915, p. 296, § 6, authorizing cities to adopt police and other regulations, and to enforce obedience by fine or imprisonment, must be strictly construed.</p> <p>8. Municipal Corporations <&wkey;524, 672 — Street Tax — Payment in Labor — Enforcement.</p> <p>Under Code 1907, § 1330, authorizing municipalities to impose a street tax, the city may authorize the acceptance of labor in payment of the tax, but so much of an ordinance as undertakes to enforce payment by criminal process is in excess of the power granted by said section.</p>

L. Brewer, Judge. W. Y. Chewning, doing business in the name and style of the Chewning Grocery Company, sued W. H. Knight. From a judgment for defendant, plaintiff appeals.

Claud B. Jones was tried and convicted for a violation of an ordinance of the city of Montgomery prohibiting a violation of the prohibition laws of the state. He was convicted by the recorder, appealed to the circuit court of Montgomery county, and from a judgment of conviction in that court he appeals.

E. Gamble, Judge. Assumpsit by Adam Frishkorn against W. L. Ogden. From a judgment for defendant, plaintiff appeals. The action seems to be for the balance due on rent, and for an indebtedness for advances made defendant with which to make a crop. The pleas were the general issue and set-off for the balance due for certain oranges, hay, corn, and sweet potatoes, the property of defendant, which was converted by plaintiff to his own use.

Merrill, Judge. Assumpsit by S. P. Larren against the Spalding Manufacturing Company. From a judgment for defendant, plaintiff appeals.

<p>1. Pleading <&wkey;20‘ — Alternative Averments.</p> <p>Each alternative averment of a count must be good; if either is bad, the count is subject to demurrer.</p> <p>2. Pleading <&wkey;18 — Certainty—Demurrer.</p> <p>In an action for injuries to plaintiff’s automobile at a point where defendant railroad maintained an unsafe overhead crossing, counts of the complaint alleging that the roadway was established as a public road in a regular proceeding' for that purpose, or had been generally used by the public for 20 years continuously, on or prior to the erection or placing of the posts or piling, were subject to demurrer in that the alternative averment did not negative that the use of the road had been permissive.</p> <p>3. Highways <&wkey;7(l) — Establishment of Boads — Prescription—Proof Negativing Permissive Use.</p> <p>While the doctrine of prescription applies to the establishment of public roads, it must be shown, in addition to continuous use for twenty years, that the use was a matter of right, and not merely permissive, since mere use without proof that it was adverse under a claim of right is not sufficient.</p> <p>4. Appeal and Error &wkey;>173(13) — Question Presented — Failure to Plead.</p> <p>On a railroad’s appeal from judgment against it in an action for injuries to an automobile at an overhead crossing obstructed by upright posts or piling, the question relative to plaintiff’s failure to register and license his automobile was not presented, under Code 1907, § 5331, providing that, if defendant does not rely solely upon a denial of plaintiff’s cause of action, it must plead specially the matter of defense, where the only matter presented in the record to invite consideration of the defense that plaintiff wai operating an unregistered and unlicensed automobile was the statement in the bill of exceptions that plaintiff admitted on cross-examination he had not procured such license, and the refusal of a special charge requested by the railroad predicated on such evidence, embodying the proposition that, if plaintiff had not obtained a license to operate the automobile on the public road, his act was unlawful, and he could not recover.</p> <p>5. Appeal and Error <&wkey;S32 — Questions Beviewable — Failure Specially to Plead Defense.</p> <p>When it is manifest from the record that an action has boon tried to its conclusion as if a defense required to be specially pleaded was an issue, though the record shows only the general issue pleaded, the appellate court will review the ruling of the trial court as to such defense as if specially pleaded, a rule not ap« plieable, where it is sought to put the trial court iu error, unless it affirmatively appears from the record that the trial court took cognizance of the defense and treated it as an issue.</p> <p>6. Appeal and Error <&wkey;916(2) — Presumptions Favoring Trial Court — Plea Admitting Evidence to Sustain Defense.</p> <p>To avoid the imputation of error to the trial court, where it appears that evidence tending to sustain a defense appropriate to the action, not admissible under the general issue, was admitted without objection, the presumption will be indulged, in the absence of affirmative showing to the contrary, that a proper plea was filed or that such plea was waived.</p> <p>7. Appeal and Error <&wkey;499(l) — Preparing Bill of Exceptions — Duty of Appellant to State Objections Made by Appellee.</p> <p>In preparing its bill of exceptions, it was not incumbent on defendant appellant to state objections made by plaintiff, where the ruling was in favor of defendant.</p> <p>Bricken, J., dissenting in part.</p>

<p>Appeal from Circuit Court, Monroe County; A. B. Foster, Judge.</p> <p>Jim Wall was convicted of assault and battery with a weapon, and he appeals.</p>

<p>1. Bastaeds <&wkey;90 — Sentence—Haed Labor.</p> <p>On conviction of bastardy, the court may, under Code 1907, § 6377, fixing sentence at 12 months, impose such sentence at hard labor for the county.</p> <p>2. Bastards <&wkey;42 — Jurisdiction—Municipal Court.</p> <p>Under Code 1907, § 6364, providing for the issuance of a warrant in bastardy proceedings by a justice of the peace of the county where the woman is pregnant of a bastard child, and Loc. Acts 1915, p. 231, § 1, conferring on judges of Birmingham municipal court all power of justices of peace, a judge of such municipal court had jurisdiction to issue warrant in bastardy proceedings.</p> <p>3. Criminal Law <&wkey;1092(13) — Bill of Exceptions — Certificate of Judge.</p> <p>Bill of exceptions without indorsement by trial judge that it was presented to him, or was correct, is insufficient, in view of Code 1907, § 3019, requiring the judge’s Signature to establish verity of the bill.</p>

<p>Criminal Law &wkey;>1129(l) — Appeal — Absence of Assignment of Error.</p> <p>On appeal from conviction in the circuit court for violation of a city ordinance, no assignment of error having been made as required by law, motion to affirm will be granted.</p>

<p>Lewdness <&wkey;l — Elements of Offense.</p> <p>The statutes directed against the various kinds of adultery and fornication are against a state or condition of cohabitation, the parties intending to continue so long as they choose, as distinguished from a single act of illicit sexual intercourse.</p> <p>Brown, P. J., dissenting.</p>

<p>"Appeal and Error &wkey;>655(2) — Bill of Exceptions — Time for Filing.</p> <p>Where it affirmatively appears that bill of exceptions was not presented within 90 days from the day judgment was entered, as required by Code 1907, § 3019, it will be stricken on motion.</p>

<p>1. Criminal Law <&wkey;1168(3) — Witnesses &wkey;> . 53(3) — Competency—Husband and Wife.</p> <p>Although Acts 1915, p. 942, gives husband and wife an election to testify, until the election is made neither is a competent witness in a criminal case against the other, and a contention that, though a wife against her objection was compelled to testify in a criminal prosecution against her husband, it was not error as to accused cannot be sustained.</p> <p>2. Criminal Law <&wkey;160 — Limitations—Record Showing Suspension of Bar.</p> <p>Under Code 1907, § 7351, providing that the statute of limitations is suspended when an indictment is quashed and another ordered to he preferred, and section 7160, providing that in such case an entry of record he made setting forth the facts, an entry by the clerk on the minute books of the court purporting to be an order quashing the first indictment and holding defendant to await the finding of another indictment, made after adjournment of the court and without an order of the court therefor, was insufficient, since, before the clerk would be authorized to complete the record to carry out the decision of the court made at a former term, a motion nunc pro tunc would have been required and an order made based on the bench notes made at a former term.</p> <p>3. Criminal Law <&wkey;160 — Limitations — Record Showing Suspension of Bar.</p> <p>Under such statutes, the bench notes of the judge disposing of the first indictment were insufficient as a record.</p> <p>4. Criminal Law <&wkey; 423(2)-Evidence — Conspiracy.</p> <p>While wide latitude is allowed in proving conspiracy extending to everything said, done, or written by any one of the conspirators, in the execution or furtherance of their common purpose, statements as to measures taken in the execution or furtherance of any common purpose are not relevant as such, as against any conspirators except those by whom or in whose presence such statements were made.</p> <p>5. Criminal Law t&wkey;427(2) — Evidence — Conspiracy — Foundation.</p> <p>Evidence of acts or statements deemed to be relevant to show conspiracy may not be given until the trial judge is satisfied that, apart from them, there are prima facie grounds for believing in the existence of the conspiracy.</p> <p>6. Criminal Law <&wkey;C36(4), 662(7) — Examination op Witnesses in Absence op Accused.</p> <p>Whore, after close of testimony for defendant and the state and after argument and before rendition of judgment by the court trying the case without a jury, in the absence and without knowledge of accused and his counsel, the court called a state’s witness and examined her further concerning matters previously testified to, and also had goods introduced by the state as evidence valued by a person not a witness in the case, such action invaded accused’s constitutional right to a fair and open trial, and that he be confronted with the witnesses against him.</p>

P. Almon, Judge. Action by McGraw & Garner, a partnership, against J. W. Cofield, in assumpsit. Judgment for plaintiff, and defendant appeals. The first count claims of defendant $62.40 due from him by account on or about September 14, 1916, for services rendered, defendant by plaintiff as real estate agents, which is just, due, and unpaid.

A. Pearce, Judge. Action by R. C. Flowers against A. Wilkinson for damages to his automobile in a collision with defendant’s automobile. Judgment for plaintiff, and defendant appeals.

B. Foster, Judge. Hiram M. Dilburn was indicted on a charge of murder in the first degree, was convicted of murder in the second degree, and from the judgment he appeals.

<p>Appeal and Error <&wkey;569(2) — “Bill of Exceptions’ ’ — Signing.</p> <p>Under Code 1907, § 3019, as to bill of exceptions, a purported bill of exceptions could not be considered where it bore no indorsement of its presentation by the trial judge, or that it was ever signed as such by the judge who tried the case; a bill of exceptions being defined as “a formal statement in writing of exceptions taken by a party on the trial to a ruling, decision, charge, or opinion of the trial judge, setting out the proceedings on the trial, the acts and rulings of the trial judge alleged to be erroneous, the objections and exceptions taken thereto, together with the grounds therefor, and authenticated by the signature of the trial judge,” and its character as a record and its verity as such comipg from the fact of its approval by the trial judge, which can be evidenced in no other way than by his signature.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Bill of Exceptions.]</p>

<p>Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.</p> <p>Action by J. C. Hubkaby against J. L. Jackson, to recover penalty under Code 1907, §4898. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Probate Court, Pike County; W. E. Griffin, Special Judge.</p> <p>Habeas corpus proceedings by Lillie White against N. W. Baxley. From a decree for petitioner, respondent appeals. On motion to affirm.</p>

<p>Appeal from Law and Equity Court, Hale County; Charles E. Waller, Judge.</p> <p>Action of detinue by J. R. Howze against Mrs. E. B. Powers and another. From a judgment for defendants, plaintiff appeals.</p> <p>The fourth plea of defendant is as follows:</p> <p>Defendant Mrs. E. B. Powers, who disclaims possession of the automobile described in the complaint, as a further plea in this behalf says that the present suit is based upon a certain alleged mortgage which was executed upon the automobile described in the complaint, and upon the other property therein described by E. B. Powers, -who is the husband of this defendant, and who bought said automobile from plaintiff, and defendant avers that all the property described in the complaint except the automobile is the property of this defendant, and that defendant is not the purchaser of said automobile, and this defendant further avers that the consideration of said mortgage was the purchase price of said automobile, and that this defendant’s said property described in the complaint was pledged by said E. B. Powers as security for the debt of the said B. B. Powers.</p>

B. Smith, Judge. Action by the Jennings Produce Company against O. A. Tyson. Judgment for plaintiff after trial before the court without a jury, and defendant appeals.

<p>Appeal from Circuit Court, Calhoun County; I-Iugh D. Merrill, Judge.</p> <p>'Suit by A. Dishman and others against J. B. Griffis. From the judgment rendered, plaintiffs appeal.</p>

<p>1. Criminal Law &wkey;417(2) —Conversation Had During Defendant’s Absence.</p> <p>Testimony as to a conversation had by a witness with third person when defendant was absent was inadmissible where no part of res gestee.</p> <p>2. Trespass <&wkey;81 — After Notice Not to Enter.</p> <p>Under ordinance imposing penalty for entering into the dwelling house or upon the premises of another after having been warned not to do so, if notice not to enter was given by the landlord and not by the tenant there could be no conviction of defendant who entered dwelling house of tenant to collect rent.</p>

<p>Burglary &wkey;>42(l) — Evidence—Possession op Property.</p> <p>Proof that goods were found in the possession of defendant will not support a conviction for burglary,- there being no testimony tending in the remotest degree to prove that the property charged to have been stolen was stolen in fact, that is, no larceny is shown to have been committed.</p>

<p>1. Constitutional Law &wkey;>63(3) — Legislative Powers — -Delegation.</p> <p>The Legislature can delegate to the courts of county commissioners the power to legislate in the matter of establishing, constructing, using, working, and maintaining the public roads, bridges, and fences, and Gen. Acts 1915, pp. 573-577, which does so, is valid.</p> <p>2. Licenses <&wkey;7(7) — Revenue Measure — Statutes —Constitutionality—“Property Tax.”</p> <p>The taxing of vehicles under authority granted to counties by Gen. Acts 1915, p. 576, § 13, is not a tax on property, but a license for using highways, and is not invalid because not levied according to valuation.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Property Tax.]</p> <p>3. Statutes <&wkey;123(4) — Titles—Single Subject.</p> <p>The title to Gen. Acts 1915, pp. 573-577, an act to provide for the establishment, discontinuance, use, working, and maintenance of the public roads, isPbroad enough to include section 13, authorizing counties to levy a vehicle license tax, within Const. 1901. § 45, requiring every law enacted by the Legislature to contain but one subject, which shall be clearly expressed In its title.</p>

<p>1. Insurance &wkey;>27 — Insurance Agents — Violations of [Regulations — Penalties.</p> <p>Under Godo 1907, § 4580, providing that any agent or person shall be personally liable for the full amount of any loss sustained on contracts of insurance unlawfully made by or through him for any company not authorized to do business in the state, the penalty is in favor of the person sustaining the loss.</p> <p>2. Insurance <&wkey;26 — Action Against Insurance Agent — Persons Entitled to Sue.</p> <p>Under Code 1907, § 4580, making agents of companies not authorized to do business in the state personally liable for losses, and section 4588, providing that every penalty provided in that article shall be sued for and recovered in the name of the state, the holder of a policy issued by an unauthorized company may sue the agent through whom it was issued in his own name, though it may be that the action might be brought in the name of the state for the policy holder’s benefit.</p> <p>3. Insurance «&wkey;25 — '“Insurance Agents”— Violations of Regulations — Penalties.</p> <p>Under Code 1907, § 4580, making agents personally liable for losses sustained on policies unlawfully made by or through them for companies not authorized to do business in the state, and section 7189, as amended by Acts 1909, p. 120, § 1, providing that any person taking or transmitting any application for insurance or any policy to or from the insurance company, or receiving or delivering any policy, or receiving, collecting, or transmitting any premium, etc., is deemed an insurance agent whether such acts shall be done at the request or instance or by the employment of the company, or any other person, a person through whom an application was transmitted to a company not' authorized to do business in the state and who delivered the policy, collected the premium, and after deducting part of it remitted the balance to the company’s agent in another state, from whom he received the policy, was liable to the policy holder for a loss sustained thereunder.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Insurance Agent.]</p> <p>4. Insurance <&wkey;>25 — Actions Against Insurance Agents — Conditions Precedent.</p> <p>Under Code 1907, § 4580, the holder of a policy issued by a company not authorized to do business in the state need not comply with its provisions as to making and forwarding proofs of loss or make any effort to collect the loss from the company before suing the agent by or through whom it was issued.</p>

B. Poster, Judge. Action in detinue by J. E. McOart against O. C. Smith. Judgment for defendant, and plaintiff appeals.

<p>Criminal Law <&wkey;120S(3) — Sentence — Imprisonment por Default in Payment of Pine and Costs.</p> <p>"Under Code 1907, § 7634, prescribing the term of punishment on default in payment of fine and costs in misdemeanor cases, and providing that if the fine does not exceed $20. the term of imprisonment or hard labor shall be for 10 days, where the jury found defendant guilty of vagrancy as charged, and assessed a fine of $15, tlie court improperly imposed sentence, for default in payment of fine, of 30 days.</p>

<p>Appeal from Circuit Court, Marion County; C. P. Almon, Judge.</p> <p>Ophelia Metcalf was convicted under Code 1907, § 7421, and appeals.</p>

<p>Appeal from Circuit # Court, Montgomery County; Leon McCord, Judge.</p> <p>Arthur Benjamin was convicted of violating a municipal ordinance, and he appeals.</p>

<p>Appeal from Circuit Court, Jefferson County ; Wm. B. Fort, Judge.</p> <p>Shan Henry was convicted of grand larceny and appeals.</p>

<p>Appeal from Circuit Court, Marion County; C. P. Almon, Judge.</p> <p>Jim Simmons was indicted, tried, and convicted of felonious adultery, and from the judgment appeals.</p>

<p>1. Criminal Law <&wkey;531(l) — Evidence — Confessions.</p> <p>Extrajudicial confessions by one accused of crime are prima facie involuntary, and the burden rests on the state to overcome the prima facie infirmity by evidence satisfactory to the court, showing the confession was voluntary.</p> <p>2. Criminal Law <&wkey;532(3) — Evidence—Confessions.</p> <p>Before permitting a' confession to be shown, the court should ascertain that it is voluntary.</p> <p>3. Criminal Daw <&wkey;531(4) — Evidence—Confessions.</p> <p>It is the right of accused before a confession is received to rebut evidence that it was voluntary, and in determining competency of the confession, the court should consider, not only evidence offered by the prosecution, but also evidence elicited by the accused, and it is reversible error to refuse accused the right to show that it was involuntary.</p> <p>4. Criminal Law &wkey;>1158(4) — Review—Evidence — Confessions.</p> <p>Where the evidence is conflicting, and the court adjudges a confession voluntary andi admissible, its finding is entitled to great weight, and will not be disturbed, unless palpably contrary to the weight of evidence.</p> <p>5. Criminal Law &wkey;553l(2) — Evidence—Confessions.</p> <p>If a confession is admitted, accused is entitled to have the jury consider all the evidence of circumstances under which it was made, to aid them in determining what credence and weight should be given to it, along with other evidence.</p> <p>6. Criminal Law <&wkey;531(l) — Evidence — Confessions.</p> <p>In absence of evidence that influence rendering a prior Confession involuntary had ceased or been dispelled, the court must assume that a subsequent confession, made in presence of persons shown to have induced the prior confession by threats and abuse, was impelled by the same influence, and exclude it as also involuntary.</p>

<p>Criminal Law <&wkey;1131(5) — Appeal and Error-Dismissal op Appeal.</p> <p>Where the accused escapes jail and becomes a fugitive from justice after he appeals, his appeal will be dismissed.</p>

<p>Appeal from Circuit Court, Walker County; T. L. Sowell, Judge.</p> <p>Pete Moore was convicted of burglary and grand larceny, and he appeals.</p>

P. Heflin, Judge. Dr. A. N. Williamson was convicted of the offense of treating diseases of human beings by a system of treatment known and called “Chiropractic” without having obtained a certificate of qualification from the State Board of Medical Examiners, and he appeals.

B. Poster, Judge. W. A. Childs was convicted of failing to dip cattle, and appeals.

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Fred Ross was convicted of robbery, and appeals.</p>

<p>Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.</p> <p>Will Thompson was convicted of homicide, and he appeals.</p>

P. Almon, Judge. Action by the W. T. Rawleigh Medical Company against Hayes Hooks and another on an independent or collateral agreement by which they severally and jointly agreed, and guaranteed plaintiff the honest and faithful performance of a contract entered into between plaintiff and one Boyd, for the purchase of certain goods, wares, and merchandise. Judgment for defendants, and plaintiff appeals.

Ocie Pool was convicted of having carnal knowledge of a girl under the age of consent, and he appeals.

I. Jones, Judge. Evie Lee Williams was convicted of murder, and she appeals.

L. Herzberg, Judge. Habeas corpus by L. P. Godwin to obtain Ms discharge from arrest under extradition proceedings. From an adverse judgment and order, he appeals.

W. Haralson, Judge. Action by the State, on the relation of the County Board of Equalization of Cherokee County against James M. Davis, to recover taxes on cotton in the hands 'of the producer under assessment made in October, 1916. Prom a judgment for the State, defendant appeals.

<p>Appeal s from Circuit Court, Mobile Cotmty; B. M. Miller, Judge.</p> <p>Corinne Holt was convicted of having in her possession liquors in violation of law, and appeals.</p>

C. B. Gwin, Judge. Lee Anna James was convicted, by the-judge without a jury, of the offense of violating the prohibition law, and from the- judgment she appeals. Affirmed.

<p>Appeal from Circuit Court, Limestone County; Osceola Kyle, Judge.</p> <p>Robert Minor was convicted of murder, and lie appeals.</p>

<p>1. Criminal Law &wkey;1023(13) — Motions for New Trial — Review.</p> <p>Motions for new trial in a criminal case could not be reviewed by the appellate courts prior to Acts 1915, p. 722, but under such act they are required to review them in criminal as well as in civil cases, without distinction.</p> <p>2. Criminal Law &wkey;>866 — Quotient Verdicts.</p> <p>Where length of sentence in criminal case is arrived at by the quotient method, it cannot stand.</p> <p>3. Criminal Law &wkey;957(2) Impeaching Verdict — Examination of Jurors.</p> <p>Although affidavits of jurors can be received to sustain their verdict,' where it is attacked on the ground of misconduct in the jury room, jurors cannot be examined to show that they arrived at the length of a sentence in a criminal case by the quotient method.</p>

<p>False Imprisonment <&wkey;7(2) — Liability op Justice op the Peace — Excess oe Jurisdiction.</p> <p>An ex officio justice of the peace, who, in view of Code 1907, §§ 7605, 7606, had jurisdiction as a committing magistrate in a case charging plaintiff with violation of Acts 1907, p. 413, § 11 (Acts 1911, p. 613), and who entertained the view that Acts 1909, p_p. 41, 42, was applicable, merely exceeded his jurisdiction, where, he in good faith adjudged plaintiff guilty, and sentenced him, so that neither defendant nor his sureties were liable to plaintiff, who had been incarcerated in jail for eight days as a consequence, on the theory that his act was wholly without jurisdiction.</p> <p>Samford, J., dissenting.</p>

<p>Criminal Law &wkey;1090(14) — Aureal and Error — Scope of Review.</p> <p>In the absence of a bill of exceptions and the oral charge of the court, the appellate court cannot review the requested charges which were refused to defendant.</p>

Jim Eaton was convicted of false pretense, and he appeals. The indictment charges that Jim Eaton did falsely pretend to George Hodgens, with intent to defraud, that he had ou deposit in the Union State Bank at Jemison, Ala., money to the amount of $51.98, and by means of such false pretense obtain from said George Hodgens groceries and merchandise, a description of which is to the grand jury unknown, to the value of $51.98.

<p>Appeal from Circuit Court, Washington County; Ben D. Turner, Judge.</p> <p>Isaiah Mason was convicted of larceny of cows, and appeals.</p>

<p>Appeal from Circuit Court, Montgomery County, Leon McCord, Judge.</p> <p>J. C. Martin was convicted of violating the prohibition law, and appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.</p> <p>Boh Hardannn was convicted of manslaughter in the first degree, and appeals.</p>

<p>Appeal from Circuit Court, Jefferson County ; Wm. E. Fort, Judge.</p> <p>Habeas corpus by B. E. Pool against the State of Alabama. Motion to quash the return was overruled, and petitioner appeals.</p>

<p>Appeal from City Court of Talladega; Marion H. Sims, Judge.</p> <p>Action by D. W. Limbaugh against Wallace Boaz. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Forgery ¡&wkey;44(%) — “Uttering Forged Instrument.”</p> <p>Before a defendant can be convicted of uttering a forged instrument, the state must prove beyond a reasonable doubt that there was a forged instrument, and that the defendant, knowing the instrument to be forged, with the intent to defraud, uttered it.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Secorid Series, Utter.]</p> <p>2. Forgery <&wkey;16 — Evidence — Sueeicienoy.</p> <p>Testimony of person whose named was signed to check that the check was such as he used, but that he did not issue such a check to defendant, and never issued the check involved, does not establish a forgery; since it does not show that he did not authorize the signing of the check.</p>

<p>Appeal from Circuit Court, Pike County; A* B. Foster, Judge.</p> <p>W. C. Griffin was convicted of violating what is commonly known as the tick law, and he appeals.</p>

C. Brickell, Judge. Action by B. L. Malone against the Southern Express Company for damages for failure to deliver goods. From a judgment for plaintiff assessing damages in the sum of $490, defendant appeals.

Circuit Court, Autauga County; Gaston Gunter, Judge. Jack Bice was prosecuted for assault and battery with a deadly weapon, and appeals from the conviction.

Paul Franklin was convicted of the larceny of a cow, and he appeals. The first count charges the larceny of a cow. The second count charges that defendant received, concealed, or aided in concealing one cow, the personal property of Stephen Sankey, of the value of $40, knowing that it was stolen, and not having the intent to restore it to the owner. Charge 1 is the general affirmative charge. Charge 2. Affirmative charge as to the first count. Charge 3.

<p>Appeal from Circuit Court, Jefferson County ; H. P. Heflin, Judge.</p> <p>Will Branch was convicted of gaming, and he appeals.</p>

<p>New Trial <&wkey;47 —Acts of Sheriff in Charge of Jury.</p> <p>New trial should be granted because of the sheriff telling the jury, when hopelessly divided, late at night, after six hours’ deliberation, that the court would keep them together till a verdict was reached; it being apparent that the verdict, agreed on shortly thereafter, might have been affected thereby.</p>

<p>■ Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.</p> <p>Leon Wiggins was convicted of illegal sa,* of whisky, and he appeals.</p>

E. Blackwood, Judge. Action by J. M. Williams against the Western Union Telegraph Company for damages lor delay in delivery of a telegram. Judgment for plaintiff, and defendant appeals. The action is by the sendee of a telegram to recover damages alleged to have proximately resulted from the breach of the defendant’s duty to exercise- reasonable care, skill, and diligence in transmitting and delivering and for wantonly failing to deliver, all of the counts being ex delicto.

<p>Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.</p> <p>Jesse Houston was convicted of petit larceny, and appeals.</p>

<p>1. Homicide <&wkey;112(2) — Defenses—Provoking Difficulty — Freedom from Fault — Evidence.</p> <p>Where accused at a public entertainment became boisterous, was evicted, and warned to stay out, but attempted to re-enter the house, in doing which he shot the master of ceremonies, he was not free from fault.</p> <p>2. Assault and Battery &wkey;>48 — Affray — Evidence.</p> <p>Where accused, after being evicted from a public entertainment and warned to stay out, sought to return, and in so doing attacked one in charge, he was guilty of an assault or an affray.</p>

<p>Railboads <&wkey;443(l) — Injury to A'nimals on Traoks — Evidence.</p> <p>Evidence held insufficient to support recovery against a railroad for killing a mule on the track.</p>

B. Foster, Judge. James Lee Herring was convicted of having carnal knowledge of a girl between the ages of 12 and 16, and he appeals.

P. Heflin, Judge. J. A. Smitherman was tried for a crime. From an order of the court on motion to re-tax costs, both parties appeal.

<p>Appeal from Circuit Court, Monroe County; A. B. Foster, Judge.</p> <p>Tom Womack was tried and convicted of driving his wagon over the public road of Monroe county without having paid a vehicle .tax, as required by a regulation of the board of revenue of said county legally adopted, and from the judgment of conviction he appeals.</p>

<p>1. Indictment and Information <©=>110(55) —Following Statutory Form — Vagrancy.</p> <p>An indictment for vagrancy in the form prescribed by Code 1907, § 7161, form 112, is sufficient.-</p> <p>2. Criminal Law <&wkey;678(l) — Election Between Offenses.</p> <p>The indictment charging but one offense, the state cannot he required to elect, unless evidence of more than one offense is offered.</p> <p>3. Vagrancy <&wkey;3 — Evidence — Admissible under Charge of Vagrancy.</p> <p>Vagrancy being a state or condition continuing in its nature, the state may show one or all the facts constituting vagrancy, as defined by the statute.</p> <p>4. Criminal Law <&wkey;1168(l) — Appeal — Harmless Error — Limiting Inquiry.</p> <p>Defendant, prosecuted for vagrancy, cannot complain of the court’s action, of its own motion, not injuring him, limiting the scope of the inquiry.</p>

<p>1. Hawkers and Peddlers <&wkey;3(l) — “Peddler.”</p> <p>A “peddler” is a small retail dealer, who, carrying his merchandise with him, travels from house to house, exposing his goods for sale and selling^ them; but a single act does not constitute him a peddler unless accompanied with the intent to continue.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Peddler.]</p> <p>2. Hawkers and Peddlers <&wkey;3(7) — “Peddler.”</p> <p>One who goes from place to place soliciting orders by exhibiting samples on condition that the goods are to be delivered by his principal is not a peddler.</p> <p>3. Hawkers and Peddlers <&wkey;3(9) — “Peddler.”</p> <p>Defendant who drove a tea company’s wagon through the country- taking orders over a regular route and returning to deliver the goods ordered, the customers not being bound to take the goods which they had ordered, and trips being made every two weeks approximately, was a peddler within Laws 1915, p. 517, § 1, subd. 82, imposing a license tax on peddlers.</p>

<p>Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.</p> <p>Chester Whitehead was convicted of bringing stolen goods into the state, and he appeals.</p>

<p>1. Action <&wkey;48(3) — Joindeb of Causes of Acci on — C omplaint — Statute.</p> <p>Where counts 2 and. 3 of the complaint, on which the cause was triéd," claimed for a breach of warranty and for money had and received, respectively, ’there being nothing to indicate that the claims as set out were for inconsistent remedies growing out of the same transaction, the complaint was not subject to- demurrer on that ground, in view of Code 1907, § 5328, providing that all actions on contracts, express or implied, for the payment of money, may be united in the same action.</p> <p>2. Trial <&wkey;145 — Affirmative Charge — Refusal.</p> <p>Where issue was joined on both counts on which the cause was tried, and there was evidence tending to sustain each, the refusal to give the affirmative charge as to either count was not error.</p> <p>3. Pleading (&wkey;369(l) — Election Between Counts — Inconsistent Remedies.</p> <p>Where it develops on trial that the counts in the complaint assert inconsistent remedies growing out of the same transaction, the court, on motion, will require plaintiff to elect as to which remedy he will pursue.</p>

<p>Appeal from Circuit Court, Jackson County ; W. W. Haralson, Judge. '</p> <p>James Terry was tried and convicted of manslaughter, and from the judgment appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.</p> <p>Patterson Reese was convicted of carrying concealed weapons, and he appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.</p> <p>Patterson Reese was convicted of carrying concealed weapons, and he appeals.</p>

<p>Appeal from Circuit Court, Clay County; Hugh D. Merrill, Judge.</p> <p>Action by Mrs. M. H. Weaver against the Lineville National Bank to recover the value of four bales of cotton. From judgment for plaintiff, defendant appeals. Reversed .and remanded.</p>

<p>1. Criminal Law <&wkey;995(2) — Judgment os Conviction — Sufficiency.</p> <p>As against contention that judgment of conviction fails to show that a plea of guilty was entered, judgment, reciting that “issue was joined,” is conclusive that proper plea was interposed.</p> <p>2. Criminal Law &wkey;?321 — Presumption — Regularity oe Proceeding — Courts oe General Jurisdiction.</p> <p>A presumption lies in favor of the regularity “of the proceeding of any court of general jurisdiction.</p>

Leigh, Jr., Judge. Thaddeus Bray, alias, was convicted of manslaughter, and he appeals. The person charged to have been slain was one Charles J. Adams. The method of the death was cutting. Officer Doyle testified that he arrested defendant after the killing, and defendant made a statement to him in regard to the killing.

<p>Appeal from Circuit Court, Madison County; R. C. Briekell, Judge.</p> <p>Action in assumpsit by Thomas J. Countess against Mrs. Arthur H. Nance, as executrix of Sarah L. Townsend, deceased. Judgment for plaintiff, and defendant appeals.</p> <p>Most of the facts and charges sufficiently appear. Charge 19, refused to defendant, is as follows:</p> <p>The court instructs the jury as a matter of law that, even if Sarah,L. Townsend went over the account for 1910¡ in the spring or summer of 1910, and promised to pay the same, they would be not authorized to find for plaintiff for the part of the account for nursing P. S. Townsend, if they find from the evidence that the charges for such nursing were, when the nursing was done, the debt of P. S. Townsend, and not originally the debt of Sarah L. Townsend.</p> <p>(20) Unless the jury are reasonably satisfied from the evidence that Mrs. Countess had knowledge, at the time she made the entries on the book offered in evidence, that same was true and correct, then the entries are not to be considered by the jury as evidence of the correctness of the account sued on.</p>

Merrill, Judge. . Clayton Opdyke was convicted for failure to take out a license required by a city ordinance, and he appeals. The defendant, appellant here, who was an agent of Dixie Transfer Company, a corporation, was prosecuted for violating an ordinance of the city of Anniston, requiring the taking out of a license, was convicted, and from the judgment appeals.

<p>Account, Action on <&wkey;12 — Affidavits — Evidence.</p> <p>Acts 1915, p. 609, amending Code 1907, § 3970, providing that in all suits upon accounts an itemized statement of the account verified by affidavit of a competent witness is competent evidence of its correctness, unless defendant within the time allowed for pleading files an affidavit denying on information and belief its correctness, does not undertake to describe a cause of action nor prescribe a defense, but merely provides a rule of evidence for the proof and denial of the correctness of an account which is cumulative and does not preclude the claim from being otherwise proven nor its correctness from being otherwise attacked. Hence, failure of a defendant to file an affidavit denying the correctness of the account sued on did not preclude him from introducing evidence showing payment.</p>

Browne, Judge. Action by Nicholas Druhan against the Mallory Steamship Company. Judgment for defendant, and from an order granting a new trial, defendant appeals. Action in the name of plaintiff for the benefit of his insurer to recover a sum paid by it for personal 'injuries sustained by one covered by an insurance policy issued to the plaintiff.

<p>Appeal from Circuit Court, Elmore County; Leon MjeCord, Judge.</p> <p>Action between Mrs. M. E. Patterson and Zeke Holt. From tbe judgment rendered, Mrs. Patterson appeals, and Holt moves to dismiss tbe appeal.</p>

<p>Trial &wkey;>143 — Instructions — Affirmative Charge.</p> <p>Where the evidence is in sharp conflict, the affirmative charge is properly refused.</p>

<p>Appeal from Circuit Court, Jefferson County ; Wm. E. Fort, Judge.</p> <p>F. S. Dunlap was convicted of operating a penny-in-the-slot machine without a license, and he appeals.</p>

<p>1. Counties <&wkey;124(l) — Rights under Invalid Contracts.</p> <p>Where a contract to install electric light fixtures in a county courthouse was invalid because the county has exceeded its debt limit, under Const. 1901, § 224, such contract being not only void, but illegal as opposed to public policy, conferred no rights on the contractor, and the courts will not aid in reimbursing the loss or in restoring the property delivered thereunder.</p> <p>2. Counties <&wkey;124(l) — Unauthorized Contracts — Subsequent Contract.</p> <p>Since a new contract founded in whole or in part on a past consideration which entered into or induced a former illegal and void contract is likewise illegal and void, where a contract to install electric light fixtures in a county courthouse was void under Const. 1901, § 224, as being against public policy, a subsequent contract between the county and the contractor, whereby the county agreed to lease the fixtures installed, based on the original prom-, ise to pay the contract price, was aliso illegal and void.</p> <p>3. Counties &wkey;>122(l) — Consideration for Contract.</p> <p>Where electric light fixtures were installed in a county courthouse under a contract illegal under Const. 1901, § 224, limiting the amount of indebtedness which a county might incur, the fixtures, having been annexed to the realty by the contractor’s voluntary act, became part thereof, and title thereto passed from the contractor to the county, so that an agreement by which the county leased the fixtures from the contractor in an attempt- to evade the constitutional provision was without consideration.</p>

<p>Appeal from Circuit Court, Mobile County; Norvelle R. Leigh, Jr., Judge.</p> <p>Suit between the State and J. IT. Baumhauer. From judgment rendered, the State appeals.</p>

<p>Appeal from Circuit Court, Pike County; A. B. Foster, Judge.</p> <p>Jack Knotts was convicted of assault with intent to murder, and he appeals.</p>

Ballantine, Judge. Action by C. M. Skinner against the Imperial Motorcar Company. Judgment for plaintiff, and defendant appeals. The following charges were refused to defendant: (1) I charge you, as a matter of law, that the current model of cars described in the contract sued on were the cars described in the catalogue of the Hudson Motorcar Company that were issued at the time of the contract. (2) Affirmative charge.

W. Haralson, Judge. Action by G. I-I. Campbell & Sou against the Butler Cotton Oil Company, for .conversion of cotton. Judgment for plaintiff, and defendant appeals. The following charges were refused to defendant : (2) The court charges the jury that if Bruce directed Frazier to sell the cotton and. cotton seed, and bring the proceeds back, and they would settle, then your vez-dict should be for defendant.

<p>Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.</p> <p>John Maxwell was prosecuted for carrying a pistol concealed about his person, and appeals.</p>

<p>Criminal Law ■f=1159(3) — Appeal — Review-Conflicting Evidence.</p> <p>Where the evidence is conflicting, and that offered by the state, if believed, is sufficient to support a judgment for conviction, the judgment will not be disturbed on appeal.</p>

Action by D. W. Jones against the Atlantic Coast Line Railroad Company for injuries to personal property. Ftom a judgment for plaintiff, defendant appeals. The facts sufficiently appear. The following charges are referred to in the opinion: (1) and (2) Affirmative charge for defendant. (4) If the jury believe that plaintiff did not stop, look, or listen before attempting to cross the track of the railroad, their verdict must be for defendant. (5) Same as (4).

<p>Appeal from Circuit Court, Pike County; A. B. Foster, Judge.</p> <p>Action, by Frank Archer against J. G. Jinright, for damages for personal injury occasioned by collision with an automobile. From a judgment for plaintiff, defendant appeals.</p> <p>The following are the counts referred to:</p> <p>“(1) Plaintiff claims of defendant the sum 0f * * * damages for that on or about * * * defendant, while in charge of an automobile and running same on and along public roads or highways in Pike county, Ala., did negligently run said automobile upon or against the buggy of plaintiff, who was then and there on said public road or highway in said county,' and by reason of said negligence, and as a proximate consequence thereof, plaintiff was thrown from said buggy. [Here follows catalogue of injuries.]”</p> <p>(2) Same^ as 1, negligence being stated as follows: “* * * Did so negligently and recklessly operate said automobile that by reason thereof, and as a proximate consequence thereof, said automobile collided with the buggy of plaintiff, who was then and there on said public roacl or highway in said county, and by reason of said recklessness and negligence, and as a proximate consequence thereof, plaintiff was thrown from said buggy. [Here follows catalogue of injuries.]</p> <p>“(3) Plaintiff claims of defendant the sum of $5,000 damages, for that on or about June 25, 1916, the defendant, while in charge of an automobile, and running the same on and along a public road or highway in Pike county, Ala., did recklessly, wantonly, and willfully run said automobile upon or against the buggy of plaintiff, who was then and there on said public road or highway in said county, and by reason of said recklessness, wantonness, and willfulness, and as a proximate consequence thereof, plaintiff was thrown from said buggy; he was bruised and scratched about the head and body; his arm broken; his leg broken; he has suffered great pain and distress; and by reason of said injuries he is irfcapaeitated to work, and has been put to a large expense in the treatment of said injuries.”</p> <p>The demurrers raise the point that the averments of negligence are but conclusions of the pleader, and fail to state the causal connection, and that count 3 fails to charge wantonness.</p> <p>Action by plaintiff for damages for personal injury. From a judgment for plaintiff, defendant appeals.</p>

P. Almon, Judge. Branch Wallace was convicted of assault with intent to murder, and he appeals.

W. Haralson, Judge. J. J.. Campbell was convicted of keeping intoxicating liquors for sale or other unlawful disposition, and he appeals.

<p>1. Intoxicating Liquors «&wkey;236 (7) — Illegal Keeping — Prima Facie Evidence of , Intent. *</p> <p>Under Acts 1915, p. 9, § 4, the fact that the defendant kept beer in an outhouse was prima faeie evidence that he kept it for sale or with intent to sell it contrary to law.</p> <p>2. Intoxicating Liquors <&wkey;238(4) — Illegal Keeping and Sale — Prosecution — Question fob Juey.</p> <p>Where there was evidence that officers came upon the defendant and others in an outhonse near defendant’s residence at midnight, that defendant had beer on ice therein, that empty bottles were there, that the others came to get beer, the defendant was not entitled to the affirmative charge; his guilt being a jury question.</p>

B. Foster, Judge. Action by F. W. Brown against the Henderson Land & Lumber Company. From a judgment for plaintiff and order denying motion to vacate and set aside the judgment and to grant a new trial, defendant appeals.

<p>Appeal from Circuit Court, Madison County; R. C. Brickell, Judge.</p> <p>Walter Johnson was convicted of stealing from a house, and he appeals.</p>

<p>1. Perjury <&wkey;32(4) — Inquests — Evidence.</p> <p>Code 1907, § 7174a, authorizes any justice of the county to hold an inquest in the absence of the coroner, and hence in a perjury case it was permissible for the state to show that the person who held the inquest was a justice of an adjoining precinct, and that there was no justice in the precinct, and that he was called to hold the inquest.</p> <p>2. Criminal ' Law &wkey;>695(2) — Evidence — General Objection.</p> <p>A general objection to evidence, no grounds being stated, was properly overruled.</p> <p>3. Criminal Law <&wkey;1045 — Matters Reviewable — Saving Objections.</p> <p>A motion to exclude evidence on which no ruling was made presents nothing for review.</p> <p>4. Criminal Law &wkey;>695(5) — Reception oe Evidence — Scope oe Objections.</p> <p>In perjury case, an objection to evidence on the sole ground that defendant returned to the hearing and corrected his testimony was a waiver of all other grounds upon which the testimony might be excluded.</p> <p>5. Perjury <&wkey;32(l) — Evidence — Admissibility.</p> <p>Where accused, at the trial at which the alleged perjury had been committed, returned and corrected his testimony, and it was a question for the jury at the trial for perjury whether the false testimony was prompted by corrupt motive or by duress, an objection to admission of evidence as to excuse for the false testimony was properly overruled.</p> <p>6. Criminal Law &wkey;M122(l) — Matters Reviewable — Record.</p> <p>A refused affirmative charge in a criminal case not incorporated in the bill of exceptions, nor indorsed “Refused” by the trial judge,, as required by Code 1907, § 5364, as amended by Acts 1915, p. 815, cannot be considered on appeal.</p>

<p>Criminal Law <&wkey;1167(5) — Harmless Error —Rulings on Demurrer.</p> <p>Errors in rulings on demurrers to a complaint are harmless, where counts demurred to are afterwards eliminated on a plea of autrefois acquit.</p>

<p>Appeal from Circuit Court, Bibb County; B. M. Miller, Judge..</p> <p>Action by J. N. Thrasher against the Red Eagle Coal Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Cullman County; R. C. Briekell, Judge.</p> <p>Joe H. Kramer was convicted of larceny by embezzlement, and he appeals.</p>

<p>1. Indictment and Information <&wkey;19 — Form and Sufficiency.</p> <p>If an indictment is in statutory form, demurrers thereto are properly overruled.</p> <p>2; False Pretenses t&wkey;'51 — Questions for .. Jury.</p> <p>Evidence held to present jury question as to accused’s guilt of obtaining money by false pretenses.</p> <p>3. ‘Indictment and Information <&wkey;I66 — Is- • sues — Provino Incorporation.</p> <p>. Under specific provisions of Code 1907, § 6S76, in the trial of criminal cases, the state need not prove incorporation of any corporation mentioned in the indictment, unless defendant before tidal denies the existence thereof by a sworn plea.</p> <p>4. Criminal Law <&wkey;401,-448(2) —Evidence— • Secondary Evidence — Opinion.</p> <p>In view of Code 1907, ■§ 6S76, making it unnecessary to prove incorporation in criminal’ cqses, unless such fact is denied under oath, testimony of witness that a bank mentioned in the indictment was a corporation was not secondary evidence, nor a conclusion or opinion of the witness.</p> <p>5. False Pretenses <&wkey;12 — Obtaining Money— Evidence — Sufficiency.</p> <p>If accused by false pretenses procured proceeds of a loan to be placed to his credit on the books of the bank subject to check, and he afterwards checked out the amount, the offense of obtaining money by false pretenses was complete.</p> <p>6. Criminal Law <&wkey;1066 — Appeal—Preservation- of Exceptions.</p> <p>In. view of Acts 1915, p. 722, as to preserving alleged errors in overruling motion for new trial, such errors cannot be considered in the absence of reservation of exceptions to the ruling.</p>

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>W. J. Foster was convicted of obtaining money by false pretenses, and he appeals.</p>

<p>Appeal from Circuit Court, Jefferson County ; C. W. Ferguson, Judge.</p> <p>Action by J. W. Hale against the Birmingham Realty Company. From a judgment for plaintiff, defendant appeals.</p>

Wert, Judge. Action by John R. Smith against Wiley Stewart for damages for personal injury. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear.

<p>Appeal from Circuit Court, Morgan County ; O. Kyle, Judge.</p> <p>S. D. Elliott was convicted of murder in the second degree, and he appeals.</p>

<p>1. Appeal and Error <&wkey;544(l) — Ruling on New Trial.</p> <p>On appeal from order granting new trial, the ruling can be reviewed only by bill of exceptions, and not on the record proper, in view of Acts 1915, p. 722, as to review of ruling on motion for new trial.</p> <p>2. Trial <&wkey;315 — “Quotient Verdict.”</p> <p>A party, objecting to a verdict on the ground that it was a quotient verdict, must show that it was arrived at by improper means, in that the jury in advance agreed upon a method, and agreed to be bound by the result.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Quotient Verdict.]</p> <p>3. New Trial <&wkey;140(3) — Quotient Verdict-Evidence.</p> <p>Evidence held insufficient to warrant setting aside verdict as a quotient verdict.</p> <p>4. Trial <®=j315 — 'Verdict—'“True Verdict.”</p> <p>A true verdict is the voluntary conclusion of the jury after deliberate consideration, though they may have been liberal in making concessions.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, True Verdict.]</p> <p>5. Appeal and Error <&wkey;>1008(3) — Review— Findings.</p> <p>The rule that on evidence given ore tenus, the appellate court will not reverse the finding, unless clearly convinced that it is wrong, does not apply where the evidence is documentary and without practical dispute.</p>

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Homer Kirby was convicted of forgery in the second degree, and he appeals.</p>

<p>Appeal from Circuit Court, Marion County; C. P. Almon, Judge.</p> <p>Wes Ridings was convicted under an affidavit charging him with the offense of willfully and maliciously committing a trespass upon the lands of affiant by severing from the freehold a wire fence, and appeals.</p>

E. Port, Judge. Mrs. Auguster Plain was convicted of aiding or abetting in connecting a wire or other instrument with á wire used by a light and power company for supplying electricity in such a manner as to supply such electricity to a burner, orifice, or lamp where the same could be burned or used without passing through' the meter, and appeals.

<p>Appeal from Circuit Court, Coffee County; H. B. Foster, Judge.</p> <p>Dave Culifer was convicted of manslaughter, and appeals.</p>

<p>Appeal from Criminal Court, Madison County; J. W. B. Hawkins, Judge.</p> <p>Carry Daniels was convicted of vagrancy, and she appeals.</p>

<p>Appeal from Circuit Court, Etowah County; J. E. Blackwood, Judge.</p> <p>Gus Mullinax was convicted for buying, receiving, concealing, etc., stolen property, and he appeals.</p>

<p>1. Fraud <&wkey;64(3) — Action for Deceit — Questions for Jury.</p> <p>In action for fraud in sale of automobile, whether representations were made, and whether they were false, held for the jury.</p> <p>2. Corporations <&wkey;433(l) — Deceit of Officer-Question for Jury.</p> <p>In action for deceit, whether the representations were made by the president of defendant corporation for himself or as president held for the jury.</p> <p>3. Appeal and Error <&wkey; 1040(11) — Harmless Error — Sustaining Demurrer.</p> <p>Trial court’s error in overruling demurrer to special count imperfectly setting up claim, which count claimed no more than amount shown to be recoverable under common counts, evidence for plaintiff sustaining every allegation necessary to recovery .under such counts held harmless to defendant.</p> <p>4. Appeal and Error <&wkey;1078(l) — Assignments — Waiver.</p> <p>Assignments not insisted upon in brief are waived.</p> <p>5. Trial <&wkey;252(6) — Instruction—Misleading Character.</p> <p>In action against foreign corporation for decéit in sale of automobile by its president, requested charge that defendant, not qualified to do business in the state, could not be held liable in the suit if the trade was made in the name of its president, held misleading, where the evidence clearly showed, that the president was acting for the corporation.</p> <p>6. Trial <&wkey;244(5) — Instruction — Giving Prominence to Testimony.</p> <p>In action against foreign corporation for fraud in sale of automobile, instruction that if jury believed evidence of company’s president that he made trade with plaintiff in individual capacity, etc., company would not be liable, held bad as giving undue prominence to president’s testimony.</p> <p>7. Trial &wkey;>240 — Instruction—Argumentative Character.</p> <p>In action against foreign corporation for fraud in sale of automobile, instruction that if jury believed evidence of company’s president that he made trade with plaintiff in individual capacity, etc., company would not-be liable, held bad as argumentative.</p> <p>8. Corporations &wkey;>521 — Instruction—Misleading Character.</p> <p>In action against foreign corporation for fraud in sale of automobile, instruction that, unless jury had evidence to show company’s president was authorized by it to engage in business in state when automobile was traded, company would not be liable for anything done by president in his own name, held properly refused as misleading.</p> <p>9. Trial <&wkey;260(l) — Instructions — Repetition.</p> <p>Refusal of requested charges fully covered by the court in its oral .charge was not error.</p> <p>10. Trial <&wkey;121(2) — Argument—Propriety,</p> <p>In action against foreign corporation not authorized to do business in state for fraud in sale of automobile, in view of testimony of president of corporation, held permissible for counsel to contend in argument that president had confessed he was doing company’s business individually to avoid paying corporation taxes.</p>

<p>Appeal from Circuit Court, Limestone County; B. C. Brickell, Judge.</p> <p>Peek Sanderson was convicted of crime, and he appeals.</p>

W. Haralson, Judge. J. A. Gullatt was' indicted and convicted for practicing medicine without license. . The cause is submitted on motion of the Attorney General to dismiss the appeal.

<p>Quo Warranto <&wkey;62 —Appeal—Judgment on Demurrer. . .</p> <p>Appeal is not authorized from judgment of the court sustaining demurrer to complaint in quo warranto, Code 1907, § 2843, authorizing appeal only from order of the judge on preliminary consideration of the petition, and section 5470 from final judgment disposing of the case.</p>

<p>Appeal from Circuit Court, Elmore County; Leon McCord, Judge.</p> <p>Elmore Peavey was convicted of forgery in the second degree, and he appeals.</p>

<p>Criminal Law <&wkey;1182 — Appeal—Affirmance.</p> <p>Appeal being upon record proper, and proceedings appearing regular in every respect, judgment will be affirmed; certificate of clerk showing that more than 90 days have elapsed since judgment of conviction and notation of appeal, and that no bill of exceptions has been presented.</p>

B. Evans, Judge. C. J. Pullen was convicted of violating an ordinance of the City of Selma, prohibiting automobiles from passing street cars tailing on or letting off passengers, and he appeals.

B. Smith, Judge. Action by Essie Smith against W. S. Davidson and others for assault and battery by an agent. From judgment for plaintiff, defendants appeal.

H. McClelland, Special Judge. Action by Maggie Elmore against L. F. Hill as sheriff and individually, and P. J. Beech, Jr., in trespass and conversion. Judgment for plaintiff, and defendants appeal. Beech had procured a judgment against P. R. Elmore,'and he, together with the sheriff and several others, went to the home of. Elmore, and levied upon oxen and a mule. Mrs. Elmore claiméd the mule, and forlwde them taking it.

<p>Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.</p> <p>Emmett Manley was convicted of assault with intent to murder, and he appeals.</p>

M. Miller, Judge. John Braxton, on complaint of the City of Selma, was convicted of engaging in the business of seeking to induce laborers to re-' move from the city to another place outside of the state without first procuring license, in violation of an ordinance, and he appeals.

B. Foster, Judge. Earnest Jones and others were convicted of manufacturing spirituous, vinous, or malt liquors, and they appeal. The defendants were indicted in the same indictment with three others on a charge of manufacturing spirituous, vinous, or malt liquors contrary to law. On the trial,’ as shown by the judgment, there was a nol. pros, entered as to the three others, and without objection the defendants interposed a plea of not guilty.

<p>Appeal from Circuit Court, Walker County; T. L. Sowell, Judge.</p> <p>.1. Mace Dunn was convicted of trespass and appeals.</p>

<p>Appeal from Circuit Court, Tuscaloosa County; H. B. Foster, Judge.</p> <p>John Lee was convicted'of manslaughter in the first degree, and appeals.</p>

<p>Appeal from Circuit Court, Jefferson 'County; Chas. W. Ferguson,. Judge.</p> <p>Peary Lasby, alias, etc., was convicted of statutory rape, and appeals.</p>

<p>Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.</p> <p>Ed Bruner was convicted of wanton killing of animals, and appeals.</p>

<p>1. Brokers <&wkey;63(l) — Procuring Able and Willing Purchaser — Default of Principal.</p> <p>Where a real estate broker, who has been engaged to procure a purchaser for land, in good faith presents a purchaser who is ready, able, and willing to make purchase for price and on terms specified, it is duty of principal to consummate sale, and the broker is entitled to his commission, whether sale is consummated or not.</p> <p>2. Brokers <&wkey;57(2) — Procuring Able and Willing Purchaser.</p> <p>Where a real estate broker, who has been engaged to procure a purchaser for land, in good faith presents a purchaser who is ready, able, and willing to make purchase for price and on terms specified, he is entitled to compensation, if principal accepts purchaser on terms previously proposed, or upon modified terms.</p> <p>3. Brokers &wkey;>82(l) — Action for Commission-Pleading.</p> <p>In action for commission, based on failure to consummate sale because of fraud of defendant principal, or consummation of sale on terms other than first proposed, averment showing failure or refusal of defendant to pay broker’s commission was essential to state a cause of action.</p> <p>4. Appeal and Error <&wkey;1040(ll) — Overruling Demurrer — Harmless Error.</p> <p>Error in overruling demurrers to special counts was without injury, where under undisputed evidence plaintiff was entitled to recover, if at all, under common counts only.</p> <p>5. Brokers <&wkey;85(8) — Action for Commission — Evidence—Admissibility.</p> <p>In action against principal for commission on sale of realty, letters from prospective purchaser to his attorney, stating that he did not desire to close trade with defendant unless he could acquire an adjoining tract, held irrelevant.</p> <p>6. Brokers <&wkey;64(l) — Procuring Able and Willing Purchaser.</p> <p>If a broker produced a purchaser ready, able, and willing to buy, and so notified his principal, who refused to sell, the broker became entitled to his commission at once, and did not lose his right because prospective purchaser thereafter refused to take land unless he could get adjoining tract.</p>

<p>1. Appeal and Error <&wkey;1041(l) —Harmless Error — Amendment oe Pleading.</p> <p>In action against administrator on account verified, itemized, and presented to administrator and filed in office of judge of probate, it was not prejudicial error to allow amendment of affidavit and account, consisting merely in elimination of some of items.</p> <p>2. Evidence ■ <&wkey;>582(3) — Prior Testimony oe Deceased AVitness.</p> <p>If a witness, either in civil or criminal cases, has given testimony in the course of judicial proceeding between the parties before a competent tribunal and subsequently dies, it is admissible to prove the substance of the testimony he gave formerly; and a transcript of evidence, taken before a justice of the peace, was admissible in connection with testimony of the court reporter.</p> <p>3. Appeal and Error <&wkey;101fi'(l) — Findings by Trial Court on Review.</p> <p>AAffien evidence is ore tenus, or partly so, in action on account, and trial court has advantage of hearing and seeing witnesses, appellate court will not disturb conclusion, unless palpably contrary to weight of evidence.</p> <p>On Rehearing.</p> <p>4. Evidence <&wkey;376(l) — Books oe Account.</p> <p>Under Code 1907, § 4003, where there was affirmative evidence that books offered by the plaintiff were books of original entry, books wore admissible as proof of an account therein.</p> <p>5. Payment <&wkey;65 (6) — Burden oe Prooe— Books oe Account.</p> <p>Books of original entry in an action on account, prima facie showed a credit transaction, imposing upon the defendant the burden of pleading -and proving payment.</p>

<p>Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.</p> <p>Certiorari by J. F. Hooper against the Town of Albertville and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Elmore County; Leon McCord, Judge.</p> <p>M. G. Patterson was convicted of dealing in automobiles in a county without a license, and appeals.</p>

E. Fort, Judge. Henry, alias Booze, O’Neal, was convicted of burglary and grand larceny, and he appeals. The first count charges burglary and grand larceny. The second count charges receiving, concealing, or aiding in concealing stolen goods.

B. Almon, Judge. Walter Huskey was convicted of living in a state of adultery, and appeals. The defendant was indicted jointly with another on the charge of living in a state of adultery. On the trial the defendant demanded a severance and was tried separately.

M. Miller, Judge. Assumpsit by the Kendrick Mercantile Company against W. W. Quaz-les and R. R. Kimmer. Judgment for plaintiff, and defendants appeal.

<p>1. Homicide <&wkey;112(2) — Self-Defense — Provoking Difficulty.</p> <p>Evidence that after altercation, defendant having gone into the house and brought out a gun, deceased said he had one of those things, and reached up to the seat of his wagon, whereupon defendant shot, does not entitle- him to invoke the doctrine of self-defense.</p> <p>2. Criminal Law <&wkey;S07(l) — Instructions— Argumentativeness.</p> <p>Requested charges, being argumentative, are properly refused.</p> <p>3. Criminal Law <&wkey;829(l) — Instructions— Requests Covered.</p> <p>Requested charges, being covered by charges given, are properly refused.</p> <p>4. Witnesses <&wkey;330(l) — Impeachment — Cross-Examination — Limitation .</p> <p>State’s witness having more than once testified in her cross-examination that she was scared and did not remember the details of the difficulty or exact location of wagon or parties, objection was properly sustained to questions as to whether lapse of memory was the result of fright.</p> <p>5. Criminal Law <&wkey;450 — Evidence — Conclusion op Witness.</p> <p>Objection is properly sustained to a question calling for a conclusion which it was the province of the jury to draw from the evidence.</p> <p>6. I-Iomicide <&wkey;174(2) — Evidence — Gun Wads.</p> <p>Gun wads found in the wagon or on its footrest were properly received as tending to support the state’s theory that deceased was in the wagon when he was shot.</p> <p>7. Criminal Law <&wkey;364(3) — Evidence—Res Gesm;.</p> <p>Declarations of defendant after he had left the scene of the homicide and gone into the house were not admissible as part of the res gestse.</p>

<p>Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge.</p> <p>Andrew Nelson was indicted for assault to</p> <p>murder, was convicted of an assault, and from the judgment he appeals.</p>

<p>1. Constitutional Law &wkey;>68(4) — Taxation —Powers oe Judiciary.</p> <p>The power of taxation by the state is legislative, and cannot be controlled by the judiciary, except as provided by Const. 1901, § 211, requiring taxes on property to be assessed in proportion to the value of the property.</p> <p>2. Licenses <&wkey;7(7) — Taxation According to Value — -Privilege Tax.</p> <p>Since property is not the only subject of taxation, Const. 1901, § 211, requiring all taxes on property to be assessed in exact proportion to the value of the property, does not apply to privilege taxes or taxes on occupations and franchises.</p> <p>3. Animals <&wkey;4 — License, — Dog Tax — Value.</p> <p>Acts 1915, p. 599, § 6, imposing a flat tax on dogs, regardless of value, is not in violation of Const. 1901, § 211, requiring all taxes on property to be assessed in proportion to the value of the property since it is a tax upon the privilege of keeping a dog.</p> <p>4. Animals <&wkey;2 — Dogs—Rights oe Ownership.</p> <p>The owner of a dog has a property right therein, which will sustain an action for its wrongful destruction or injury.</p>

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge. •</p> <p>Carroll Little was convicted of carrying a concealed pistol, and appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.</p> <p>Defendant Carroll Little was convicted for carrying a concealed pistol, and from' the judgment he appeals.</p>

A. Sharpe, Judge. Action by the Oden-Elliott Lumber Company against the Louisville & Nashville Railroad Company. From judgment for defendant, plaintiff- appeals. Action by the plaintiff in the court below against the defendant to recover overcharge in freight and for a statutory penalty. From a judgment for -the defendant the plaintiff appeals.

<p>Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.</p> <p>Lattie Bay was convicted of embezzlement, and appeals.</p>

<p>1. Pleading <&wkey;i2 — Matters Within Knowledge of Adverse Party.</p> <p>In detinue for machinery, defendant’s plea that plaintiff practiced fraud and mad© affirmative representations of fact through its agent, and that by reason of such fraud defendant was deceived in execution of paper, upon which plaintiff relied for title or right of possession, was demurrable, where it did not aver name of plaintiff’s agent; it being immaterial that plaintiff knew the name of its agent.</p> <p>2. Pleading <&wkey;409(3) — Waiver of Objections TO1 Plea.</p> <p>Where issue is joined on a plea, however erroneous, the court will not be' put in error for permitting testimony sustaining the issues as made, unless unrecoverable damages are claimed.</p>

<p>1. Homicide <&wkey;163(2) — Evidence—Character of Deceased.</p> <p>In prosecution for murder, defended on the ground that accused was attempting to arrest deceased for an assault to rape his sister, evidence of deceased’s general character in any respect was not admissible.</p> <p>2. Homicide <&wkey;163(2) — Evidence—Admissibility.</p> <p>In prosecution for murder, the fact that a prosecution was pending against deceased for an assault to rape accused’s sister, was immaterial.</p> <p>3. Criminal Law &wkey;448(10) — Evidence — Conclusions of Witnesses.</p> <p>Question whether deceased seemed to have certain things on his mind was objectionable, as calling for a conclusion of a witness.</p>

<p>1. Embezzlement <&wkey;14 — By_Agent.</p> <p>Fraudulent conversion of money paid to an agent for a particular purpose constitutes embezzlement under the statute.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Embezzlement.]</p> <p>2. Embezzlement <&wkey;23 — Defense—Promise to Repay Money.</p> <p>It is no defense to a charge of embezzlement by an agent that after the offense was completed defendant promised to repay the money converted.</p>

Kyle, Judge. Petition by W. J. Mooneyham for writ of prohibition to the county court. After writ was directed to be issued, new trial was ordered, and petitioner appeals.

M. Miller, Judge. Action in detinue by the G. W. Phhlin Lumber Company against H. A. Belcher, for the recovery of personal property. From a judgment for defendant, plaintiff appeals.

J. Curtis, Judge. Alvin Blackwell was charged with desertion of his wife, and from an order sustaining demurrer to the affidavit, the State appeals. The defendant was arrested on a warrant based upon an affidavit charging him with desertion of his wife without providing her with means of support; she being at the time in necessitous or destitute circumstances.

E. Blackwood, Judge. Andy Mason was convicted of manslaughter in the first degree, and he appeals. The defendant was indicted for murder in the first degree, and upon the trial was convicted of manslaughter in the first degree and sentenced to ten years in the penitentiary.

<p>1. Criminal Law &wkey;1170(4) — Harmless Error-Exclusion oe Evidence.</p> <p>Ruling, in prosecution for robbery, sustaining objection to defendant’s question to state’s witness, whether he took them all to be drinking, was harmless to defendant, where witness immediately afterward testified he thought they were drinking, but did not see or smell whisky.</p> <p>2. Criminal Law <&wkey;382 — Immaterial Evidence.</p> <p>Evidence of justice of the peace, attempted to be introduced by defendant as to whether he, as justice, examined into charge on complaint made by party alleged to have been robbed, was properly excluded as immaterial.</p> <p>3. Robbery <&wkey;23(l) — Immaterial Evidence.</p> <p>In prosecution for robbery, court properly refused to permit inquiry into question whether person robbed was a drinking man or not; point not being material.</p> <p>4. Criminal Law <&wkey;250 — Jurisdiction oe Justice — Robbery.</p> <p>A justice of the peace has no jurisdiction finally to try and determine a charge of robbery.</p> <p>5. Witnesses <&wkey;236(4) — Examination—Indefinite Evidence.</p> <p>In prosecution for robbery, trial court’s refusal to permit to be asked a witness a question as to what business defendant was in after he fled, was proper, question being indefinite, and answer sought, as stated by defendant after ruling, being likewise indefinite.</p>

W. Ferguson, Judge. Action by Ike Stewart against the Western Union Telegraph Company. From judgment for plaintiff, defendant appeals. Action by plaintiff for damages for breach of a contract to deliver a telegram. From a judgment for plaintiff, defendant appeals.

<p>Appeal from Circuit Court, Morgan County; O. Kyle, Judge.</p> <p>Madison Moore was charged with murder in the first degree, was convicted of manslaughter in the first degree, and appeals.</p>

B. Foster, Judge. Ed and Jim Belser were convicted of grand larceny, and they appeal. The charge was the larceny of certain cows. The following is charge-refused to defendant: The court charges the jury that possession of recently stolen property is a circumstance tending to prove that the possessor thereof is the guilty agent, and that the bnrden of proof is on lii-m to satisfy the jury beyond a reasonable doubt that he came honestly into the possession of same.

<p>1. Homicide @=169(1) — Evidence — Immateriality.</p> <p>.In prosecution for manslaughter, it having been shown killing was done at defendant’s home at about 4 in afternoon, testimony deceased had gone across river that morning with witness and gotten whisky, etc., was properly excluded as immaterial and irrelevant.</p> <p>2. Homicide @=339 — Appeal — Harmless Error — Evidence.</p> <p>In prosecution for manslaughter, exclusion of evidence of drunken condition of deceased on a former occasion, when it was testified he made a threat against defendant’s life, was harmless, and, if error, was to defendant’s benefit.</p> <p>3. Criminal Law @=829(1) — Instructions— Repetition.</p> <p>Charges covered by the court’s general charge or those given at defendant’s request were properly refused.</p> <p>4. Homicide @=300(5) — Instruction—Self-Defense — Involved Character.</p> <p>In prosecution for manslaughter, charge that, even though deceased had no gun at time of shooting, yet, if he was apparently reaching for a gun, and was saying to defendant he had a gun, etc., defendant, if in his own house, was under no duty to retreat held properly refused as involved.</p> <p>5. Homicide @=116(4) — Self-Defense —Appearances.</p> <p>If appearances produced in defendant’s mind honest belief it was necessary to kill deceased to save his own life, or himself from great harm, appearances being such as to impress mind of reasonable man with necessity to take life, defendant was justified in killing deceased, if free from fault, and at his own house.</p> <p>6.. Homicide @=116(5) — Self-Defense — Appearances.</p> <p>Defendant, in shooting one with whom he had a difficulty, had a right to act on appearances; the other reaching toward the corner of the house and saying he had a gun there.</p> <p>7. Criminal Law @=945(2) — New Trial — Newly Discovered Evidence — Manslaughter.</p> <p>In manslaughter case, where court gave defendant all he was entitled to by contention that appearances justified belief deceased had gun, discovery after trial witnesses would have testified that before killing deceased was seen going-toward defendant’s house was not sufficient to authorize new trial.</p> <p>8. Criminal Law @=938(1) — New Trial — Further Impeachment.</p> <p>Undiscovered evidence, tending further to impeach testimony of state’s witness, who had already been impeached and contradicted by several witnesses, is not sufficient to warrant new trial of defendant for manslaughter.</p> <p>9. Criminal Law @=3854(9) — Misconduct of Jury — Failure to Remain Together.</p> <p>Jury’s failure, while in the courtyard and with the bailiff, to remain in compact mass, five of them being about 25 feet from others, is not such misconduct as will warrant setting aside verdict of guilty of manslaughter.</p>

<p>Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.</p> <p>Assessment proceeding by the City of Florence, wherein Y. A. Wallace filed protest, and, after assessment of benefits against his lots, perfected appeal to the circuit court, which was dismissed on the City’s motion, and Wallace appeals.</p>

L. Brewer, Judge. Action by H. W. Hearn against the Merrimac Manufacturing Company, and R. P: Kilgore, garnishee. Judgment. for plaintiff. From an order granting a motion to amend the judgment nunc pro tunc, defendant appeals.

<p>On Rehearing.</p> <p>Criminal Law @=>1088(18) — Appeal—Record — Bill oe Exceptions.</p> <p>Where ruling on motion to strike complaint filed against defendant by county solicitor appears in Court of Appeals only in bill of exceptions, and not in record proper, propriety of ruling is not properly presented for review.</p>

W. Haralson, Judge. -John Harris was convicted of murder, and he appeals. The motion to quash the venire was based on the following grounds: (1) Because the jury -box from which the regular and special venire was ch-awn was made up from names of jurors residing in that part of Marshall county outside of the territorial jurisdiction of the Guntersville court.

B. Smith, Judge. Assumpsit on account by J. A. Grant against J. E. Penney. Judgment for plaintiff, and defendant appeals. The following charge was refused to defendant: (5) The jury may look to the fact, if it be a fact, that Penney was entitled to credit for the draft of $172.50, and to the further fact that no credit was allowed for such amount in determining what weight the jury will attach to the books and accounts of plaintiff offered in- evidence.

W. Haralson, Judge. Charles Sanders, alias, etc., was convicted of murder in the second degree, and he appeals.

W. Haralson, Judge. Will Matthews, alias, etc., was convicted of murder in the second degree, and he appeals. The following charges were refused to defendant: (1) If you believe the evidence in this case as to the sanity of Matthews, you should not convict. (2) If you believe from the evidence that this killing was accidental, then you should not convict defendant.

<p>Appeal from Circuit Court, Morgan County; R. O. Briokell, Judge.</p> <p>Action by J. R. White against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals.</p>

C. B. Gwin, Judge. Action by W. M. Duncan against tbe Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. The following charges were refused to defendant: (7) If you believe the evidence in this case, you cannot award plaintiff any damages for the loss of the matting destroyed by fire.. (8) Same as 7, except- it refers to two art squares. (9) ¡Same as 7 except that it refers to a sewing machine.

Miller, Judge. Lewis Cohen, alias, etc., was convicted of buying, receiving, or concealing certain bra'ss knowing it to have been stolen and not having the intent to restore it to the owner, and appeals.

W. Haralson, Judge. Proceedings by the State against Ullrnan Bros, to sell land for taxes. A decree of sale was entered in the probate court, and on appeal a like decree was rendered, from which defendants appeal.

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.</p> <p>Jane Sanders was convicted of violating the prohibition law, and she appeals.</p> <p>The following charges were refused to defendant:</p> <p>(1) The court charges the jury that under no phase of this evidence can you convict defendant, unless you are convinced beyond all reasonable] doubt that defendant sold the beer to the witness.</p> <p>(2) The court charges the jury that under no evidence in this case has the state made out counts 2, 3, 4, 5, 6, 7, and 8 of the complaint or affidavit and you cannot convict defendant under such count.</p>

P. Almon, Judge. ’ George Oliver was indicted under Act Sept 22, 1915, § 2, for failing to work the public roads, and from the judgment he appeals.

<p>1. Indictment and Information @=87(Sí-Date of Offense — Allegation —Sufficiency.</p> <p>Act 1915, p. 137, while designated an amendment to Code 1907, § 7706, creates, so far as it relates to camal knowledge of a girl over 14 and under 16, a new offense, and; since act had not been in force for such period as to cover 'limitation of action, it was necessary to either allege date of offense, or that offense was committed subsequent to date of passage of act, in view of Const. 1901, § 7, as to punishment only-under law established prior to commission of , offense.</p> <p>¡2. Rape @=17 — Defense—Ignorance as to I Age of Girl.</p> <p>í In prosecution under Oode 1907, § 7700, as ¡amended by Acts 1915, p. 137, as to carnal 'knowledge of girl over 14 and under 16, that defendant honestly entertained a belief that ! girl was over 16 was no defense.</p> <p>3. Rape @=15 — Carnal Abuse oe Girl Un- ' der Age — “Abuse.”</p> <p>“Abuse” in attempting to have carnal knowledge of any girl over 12 and under 16, as proIvided by Acts 1915, p. 137, is limited in its ¡meaning to injuries to genital organs, and does ¡not refer to other forcible or wrongful ill usage of other parts of body.</p> <p>: [Éd. Note. — For other definitions, see Words and Phrases, First and Second Series, Abuse.]</p> <p>4. Statutes @=118(6) — Title—Reference in Title to Section Number Only.</p> <p>Title of Acts 1915, p. 137, “An act to amend section 7700 of the Oode 1907,” is sufficient, under Const. § 45, as to title of acts, since subject of amendatory act is germane to, suggested by,' and supplemental to section sought to be amended.</p> <p>5. Indictment and Information @=111(1)— Negativing Defenses.</p> <p>Provision of Code 1907, § 7700, as amended by Acts 1915, p. 137, that section as to carnal knowledge of girls under 16 shall not apply to boys under 16 sets up defensive matter, which need not be negatived in indictment.</p>

<p>Criminal Law <@=>992 — Verdict—Sentence.</p> <p>A verdict, “We, the jury, find the. defendant guilty as charged in the statement, and assess a fine of four hundred dollars,” shows a conviction for only one offense, and assessment of only one fine, and a judgment sentencing defendant to an additional term at hard labor was erroneous.</p>

i Appeal from Circuit Court, Etowah Coun,ty; J. E. Blackwood, Judge. The defendant, Cleveland Vinson, was indicted and convicted of violating the prohibition law, and he appeals.

<p>Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.</p> <p>Action by W. M. Bonds against J. B. Marsh and another for breach of contract. Fr<»n a judgment for defendants, plaintiff appeals.</p>

<p>1. Perjury <©=>29 (4) — Evidence—Indictment and Proof — Variance.</p> <p>Where indictment for perjury alleged that in a prosecution for grand larceny accused falsely swore that he spent “the Saturday night before Easter Sunday, 1915,” at a certain house, and the stenographer’s report showed that accused stated that “on the Saturday night the goods were stolen” he stayed at such house, did not present variance. i</p> <p>2. Criminal Law <©=>548 — Bvidencet-Testimony on Former Trial — Effect. ■</p> <p>The contents of the stenographer’s report of the testimony at a former trial when transcribed and duly authenticated is prima facie evidence of the testimony given, but is not conclusive.</p>

<p>1. Indictment and Information <©=>153 — Misjoinder of Counts — Effeot of Sustaining Demurrer.</p> <p>Judgment sustaining demurrer to one of two counts that were improperly joined eliminates such count, and relieves indictment of the vice of misjoinder.</p> <p>2. Criminal Law <©=>1162 — Review — Substantial Rights — Prejudice.</p> <p>Where a substantial right of the accused has been prejudiced, a new trial should be bad; otherwise, the appellate court should affirm a conviction.</p> <p>3. Criminal Law <@=>785(3) — Instructions— Witnesses — Disregarding Testimony.</p> <p>Requested instruction authorizing jury to disregard testimony of witness if she “swore falsely as to a material fact” held improper, in that it did not hypothesize that the testimony of the witness was either willfully or corruptly false as to a material fact.</p> <p>4. Criminal Law <@=>807(1) — Argumentative Instructions.</p> <p>An argumentative instruction held properly refused.</p> <p>5. Criminal Law <@=>829(1) — Instructions Covered by Others Given.</p> <p>Requested instructions, which were substantial duplicates of others given, were properly refused.</p> <p>6. Criminal Law @=>561(1) — Reasonable Doubt.</p> <p>Acquittal cannot be predicated upon reasonable doubt, unless such doubt arises from the evidence.</p> <p>7. Criminal Law <©=>815(13) — Trial — Instructions.</p> <p>In prosecution for assault with intent to ravish, instruction requiring acquittal, if jury believed conduct of prosecutrix was such as to lead accused to believe she would consent, was properly refused, where accused was subject under indictment to conviction of assault and battery.</p> <p>8. Criminal Law <@=>811(2) — Instructions— Emphasizing Evidence.</p> <p>Instruction, in the prosecution for assault with intent to ravish, held to unduly emphasize “the. evidence bearing upon the previous relation” between defendant and prosecutrix.</p> <p>9. Rape <@=>43(2) — Assault — Admissibility op Evidence — Marks on Person.</p> <p>In prosecution for assault -with intent to ravish, testimony of prosecutrix as to marks left on her person when defendant “grabbed her” held admissible.</p> <p>10. Criminal Law <©=>421(1) — Evidence — Hearsay.</p> <p>In prosecution for assault with intent to ravish, answer to question, “You had heard rumors about the defendant claiming that he was at” D.’s “house the night this happened?” held inadmissible as hearsay.</p> <p>11. Witnesses <@=3277(5) — Admissibility op Evidence.</p> <p>In prosecution for assault with intent to ravish, it was error to permit state to show, on cross-examination of defendant, that. he had been twice married and the homes of his wives; such evidence being immaterial and irrelevant.</p> <p>12. Criminal Law «@=31169(1) — Prejudicial Error — Evidence.</p> <p>In prosecution for assault with intent to ravish, evidence brought out by state that defendant had been twice married was prejudicial, and was not rendered harmless by defendant’s testimony that prosecutrix knew he was not divorced at the time she wrote him several letters.</p> <p>13. Criminal Law <@=>763, 764(1) — Instructions — Eppect op Evidence.</p> <p>Court should avoid instruction bordering on a charge on effect of evidence.</p>

<p>Appeal from Circuit Court, Tuscaloosa County; H. B. Poster, Judge.</p> <p>Jack Harris was convicted of an offense, and he appeals.</p>

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Luther A. May was convicted of grand larceny, and he appeals.</p>

<p>Appeal from Circuit Court, Lauderdale County: C. P. Almon, Judge.</p> <p>John Null was convicted of murder in the second degree, and he appeals.</p>

<p>Appeal from Circuit Court, Etowah County; J. E. Blackwood, Judge.</p> <p>Pat Crawley, alias, was convicted of assault with intent to murder, and be appeals.</p> <p>Tbe evidence tended to show that, in tbe absence of defendant, Grover Higbtower bad certain goods of defendant attached for rent, and that upon tbe return of defendant be came into tbe bouse and walked through tbe house. The other witness stated that he heard the wife of defendant scream, and that she broke and ran into the back yard, and continued to scream and halloo out there: and that immediately defendant came td’the room where witness was and lunged against the door, and, on witness starting to open tbe door,. defendant fired, tbe shot breaking a bole in the door, and a splinter striking witness. Witness stated that be-bad no feeling against defendant, and it was shown that at the time of tbe trial witness was living in Atlanta, Ga., but bad come all tbe way to Gadsden to attend tbe trial whereupon the solicitor asked him how be came to know that tbe case was set down for that day, and witness replied that he bad a summons to appear that day, together with a letter from tbe sheriff asking him to come. Mrs. Higbtower, wife of prosecutor, was permitted to testify that, after defendant bad rapped on tbe door and said that be wanted cover, she ran to her husband and said, “You are not going to open tbe door,” and be just said, “Ob,” like that, and reached for tbe knob. Tbe wife of defendant testified that defendant was out all day and came home about half an hour before the trouble; that he had been drinking all day, and that when he came in he told her that he was going to see what— Here objection was interposed, and counsel stated;</p> <p>“We offered to show that just immediately before tbe shooting this man came in intoxicated and said: ‘I’m going to go to Higbtower and tell him I want to get part of that furniture.’ AVhereupon defendant’s wife said to him: ‘Hightower has got a gun; he has got a pistol, and don’t you go.’ And defendant picked up his gun and said, ‘I’m going,’ and he went.”</p> <p>The following charges were refused to defendant:</p> <p>A. Tbe court charges the jury that they must each believe beyond every reasonable doubt that defendant is guilty as charged; otherwise, they must acquit him.</p> <p>■B. In order to convict defendant, you must believe under the evidence beyond all reasonable doubt that, at the time the shot was fired, the defendant intended to kill Grover High-tower.</p> <p>G. If you find that at the time the shot was fired defendant did not know Grover Hightower was in the room, then you cannot convict him.</p> <p>D. Before you can convict defendant, you must believe beyond all reasonable doubt that defendant assaulted Grover Hightower with the intent unlawfully and maliciously to kill him.</p> <p>E. The burden is cast upon the state to satisfy each and every member of the jury beyond all reasonable doubt that each and every material allegation contained in the indictment is true, and, failing to do so, they cannot convict defendant.</p> <p>Tbe record contains a motion for a new trial, and the order on the motion; but the same is not set out in tbe bill of exceptions, nor does the record contain any account of an exception being taken to the action of the court in overruling the motion.</p>

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Raymond Smith was convicted under, an indictment charging grand larceny, receiving stolen property, etc., and appeals.</p>

S. Williams, Judge. T. J. Lee was convicted of practicing dentistry without a license, 'and he appeals. The facts were without dispute that defendant had practiced dentistry without a license, making charges therefor, and that he had not received a license from the State Board of Dental Examiners, nor was there such a license on file in the office of the judge of probate of Barbour county,

<p>Appeal from Circuit Court, De Kalb County ; W. W. Haralson, Judge.</p> <p>Action between Mrs. Josie Hall and the Ingram Land Company. Appeal by former having been dismissed she moves to set aside the order of dismissal.</p>

<p>Appeal from Circuit Court, Jefferson County; Wm. E. Port, Judge.</p> <p>Monroe Craut was convicted of assault with intent to ravish, and he appeals.</p>

<p>1. Insurance ©=>349(1) — Forfeiture on Nonpayment or Premiums — Validity op Agreements.</p> <p>Agreements for the forfeiture of an insurance policy for nonpayment of premiums are valid and enforceable by the insurer.</p> <p>2. Insurance <@=>179% — Loans—Deposit op Insurance Policy — Rights op Parties — “Pledge.”</p> <p>An agreement under -which an insured deposited a “paid-up policy” with the insurer as security for a loan held to make the deposit a “pledge” to which title remained in the pledgor with right in the pledgee in case of default to sell but not confiscate.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Pledge.!</p> <p>3. Pledges <@=>54 — Validity op Agreements —' Divestiture op Title.</p> <p>Where a pledge agreement provides that upon debtor’s default title shall become absolute in the pledgee, it is void.</p> <p>4. Insurance <@=>179% — Loans—Deposit op Policy —Rights op Parties.</p> <p>A paid-up insurance policy, deposited by the insured with the insurer, under an agreement for forfeiture or payment of excess insurance in case of a default, held a pledge, which could not be canceled, except by foreclosure.</p> <p>5. Insurance <@=>401 — Cancellation op Policy — “Lapse.”</p> <p>That a paid-up insurance policy is transferred by contract, so that in case of nonpayment of a loan for which the policy is security title may pass, with a right in the pledgee to become a purchaser and to cancel the policy, and the policy is canceled thereunder, does not constitute a lapse.</p> <p>6. Insurance <@=>179% — Loans—Rights op Parties —Cancellation op Policy.</p> <p>An insurance company, which loans money on its own paid-up policy as security, is in the same position as other lenders, or as lenders on other security, and cannot cancel the insurance or avoid the policy, in the absence of acquisition of title thereto, except by proceedings necessary in the case of other lenders.</p>

<p>Appeal from Circuit Court, Montgomery County; A. B. Foster, Judge.</p> <p>Henry Ivreutner was convicted of a violation of the Prohibitory Liquor Law, and appeals.</p>

<p>Appeal from Circuit Court, Montgomery County; A. B. Foster, Judge.</p> <p>William J. Toole appeals from an adverse ruling in a prosecution against him.</p>

<p>Appeal from Circuit Court, Jefferson County; H. A. Sharpe, Judge.</p> <p>Mandamus by the State of Alabama, on the relation of C. T. Rambow, against M. Y. Henry, as Treasurer of Jefferson County. Prom judgment for respondent, petitioner appeals.</p>

<p>Appeal from Circuit Court, Montgomery County; A. B. Poster, Judge.</p> <p>Ed Mahoney appeals from an adverse ruling in a prosecution against him.</p>

<p>Appeal from Circuit Court, Montgomery County; A. B. Poster, Judge.</p> <p>George Preiss appeals from an adverse ruling in a prosecution against him.</p>

W. Haralson, Judge. Action by W. J. Jeffers against the T. L. Farrow Mercantile Company. Judgment for plaintiff, the court refused to set the judgment aside and to dismiss the suit on jurisdictional grounds, and defendant appeals.

W. Haralson, Judge. Action by G. F. Morrison against R. F. Sanders, in which one Ferguson made a motion to discharge levy of attachment. Judgment for defendant, and plaintiff appeals.

<p>1. Chattel Mortgages <&wkey;170(l) — Assignment^-Passage oe Title.</p> <p>An indorsement on a mortgage, “I have this day transferred $13.50 to J. D. C. without recourse,” while it might invest the indorsee with the equitable title, does not invest him with such title as to authorize him to maintain trespass for the wrongful taking of the property, or trover for its conversion.</p> <p>2. Appeal and Error <&wkey;1008(l) — Review —Findings oe Fact.</p> <p>The findings of trial court will be accorded the weight of the verdict of a jury.</p>

y; C. W. Ferguson, Judge. Action by John Reid against the Hotel Supply Company for damages for malicious prosecution and false imprisonment. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Action by Alabama Supple against tbe City of Montgomery. Judgment for plaintiff, and defendant appeals.</p>

Miller, Judge. Suit by H. C. Riddle against T. j. Bat-son, as Sheriff, and the American Surety Company. Verdict and judgment for defendants, and plaintiff appeals.

S. Williams, Judge. Action by J. L. Pittman against the Central of Georgia Railway Company for damages for the negligent killing of a cow. Judgment for plaintiff, and defendant appeals.

alhoun County ; Hugh D. Merrill, Judge. Assumpsit by the Land Title Guaranty Company against the Lynchburg Foundry Company. Demurrers to the several counts of the complaint sustained, and plaintiff appeals.

P. Almon, Judge. Action by E. C. Nance, revived in the name of Mrs. Frances Nance, as administratrix, against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals.

Browne, Judge. Action by Helen Riley against S. E. Webb & Co. for damages for injuries sustained. Judgment for plaintiff, and defendants appeal. The facts sufficiently appear. Pleas of contributory negligence set up the fact that plaintiff knew .said.swing was likely to fall, or that she could, by the use of ordinary diligence, have ascertained that it was likely to fall, and yet she negligently occupied said swing.

<p>Appeal from Circuit Court, Washington County; Ben D. Turner, Judge.</p> <p>Action between C. Eugene Harrell and Mrs. Ella E. Hooks, as executrix. Judgment in favor of the latter, and the former appeals.</p>

Turner, Judge. Detinue by Garrett & Mason, as partners, doing business under the firm name of Garrett & Mason, against James S. Deas. Judgment for plaintiff, and defendant appeals. The verdict of the jury as disclosed by the judgment is as follows: We, the jury, find for plaintiff for the property sued for, and fix its alternate value as follows: One white cow with red head, $30; one calf, $10; one calf, $7.

B. Smith, Judge. Action of assumpsit by the Birmingham Motor Company against the Norwood Transportation Company, a corporation. From judgment for defendant, plaintiff appeals. The action was upon the common count.

<p>1. Salvage <&wkey;43 — Title to Property — Statutes.</p> <p>Under Code 1907,'§§ 5844-5857, prescribing the necessary steps to be taken when property is salvaged, the salvor is clothed with title to the property salvaged if he strictly- pursues the steps indicated by the statute.</p> <p>2. Salvage <&wkey;39 — Lien—Statutes—Exhibition oe Property.</p> <p>Under Code 1907, §§ 5844-5857, prescribing the necessary steps to be taken when property is salvaged, an exhibition of the salvaged property to a justice of the peace is essential to the establishment of a lien in salvor’s favor.</p> <p>3. Salvage &wkey;>39 — Lien — Jurisdiction oe Justice — Value oe Property.</p> <p>When property is salvaged under Code 1907, §§ 5844-5857, it is essential to the establishment of a lien that a justice of the peace determine whether in his opinion the property is worth more than $30.</p>

C. Brickell, Judge. Action -by E. E. Wright against R. N. McCullough for damages for conversion. Judgment for defendant, and plaintiff appeals. The suit grew out of the seizure of certain beer by the sheriff, R. N. McCullough, who ivas sheriff of Morgan county, Ala., and resided in the city of Decatur, in said county.

<p>1. Sunday <&wkey;13 — Execution of Contract on Sunday.</p> <p>A contract for the sale and exchange of lands executed on Sunday was void by Code 1907, § 3346.</p> <p>2. Pleading <&wkey;142 — Character of Pleading-Determination by Substance — Statute.</p> <p>Under Code 1907, § 5330, the character of a plea of set-off must be determined by its' substance, and not its form.</p> <p>3. Appeal and Error <&wkey;>194(4) — Reservation of Grounds of Review — Waiver of Objection to Plea.</p> <p>Where issue was joined by plaintiff without objection on defendant’s plea of set-off, he treated it as a sufficient plea, and he cannot successfully contend on appeal that the plea is not sufficient as a plea of* set-off because not in terms offering to set off defendant’s against plaintiff’s demand.</p> <p>4. Vendor and Purchaser <&wkey;329 — Failure to Consummate Transaction — Fault — Sufficiency of Evidence.</p> <p>In suit for breach of contract for sale and exchange of lands, evidence held not to prove averments of second count of complaint, particularly that sale was not consummated by defendant’s fault.</p>

<p>1. Carriers <&wkey;275 — Passengers—Carriage Beyond Destination — Pleading.</p> <p>A complaint in a passenger’s action for carrying her beyond destination to which, she purchased a ticket is demurrable when it does not aver that the train on which she took passage was scheduled to stop at the station for which the ticket was purchased.</p> <p>2. Carriers <&wkey;262 — Passengers — Duty to Furnish Information.</p> <p>It is the duty of a carrier to furnish passengers and intended passengers with information as to its system and course of conduct as may be reasonably necessary to enable them to pursue their journey.</p> <p>3. Carriers <&wkey;251 — Passengers—Duty to Furnish Information — Authority of Ticket Agent.</p> <p>A ticket agent authorized to sell tickets has authority, on application of a passenger or intended passenger, to give information as to the proper train on which a ticket entitles the passenger to travel, and like information regarding the use of the ticket.</p> <p>4. Carriers <&wkey;>264 — Passengers — Duty of Passenger to Obtain Information.</p> <p>Ordinarily, it is the duty of a passenger on a railroajl to inform himself as to what train his ticket entitles his carriage upon, and the carrier need not volunteer such information, unless the schedule has been changed after the ticket has been sold, or such change has been made without giving the ordinary notice to the public.</p>

<p>Appeal from Circuit Court, Elmore County ; Gaston Gunter, Judge.</p> <p>Action by L. A. Taunton against the Tallassee Falls Manufacturing Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Trial • <&wkey;171 — Instructions — Amirmative Charge.</p> <p>Where evidence was conflicting, it was error for court to give affirmative charge, where there was no written request therefor; such charge being upon the effect of evidence, which Code 1907, § 5362, requires to be given only on request.</p>

A. Pearce, Judge. Action by Ocie L. Pickett against the Central of Georgia Railway Company. Prom an order setting aside an order of dismissal and reinstating plaintiff’s case on the docket, defendant appeals.

<p>Appeal from Circuit Court, Morgan County; R. C.. Brickell, Judge.</p> <p>Jack McCaig was convicted of assault on a joint indictment with another, and he appeals.</p>

A. Pearce, Judge. Petition, for mandamus by Ocie L. Pickett to compel trial judge in the case of Ocie L. Pickett against the Central of Georgia Railway-Company to rescind an order setting aside an order of dismissal and restoring the cause to the docket.

B. Smith, Judge. Action in assumpsit by the Birmingham Tailoring Company against the American Cast-Iron Pipe Company. Judgment for plaintiff, and defendant appeals. The basis of the suit is an assignment by Jim Sadler of wages to he earned between the last day of May and the 5th day of June, 1915, the amount being $5.50, and contains an order to defendant to pay same to plaintiff.

<p>Criminal Law <&wkey;718 — Bemarks of Counsel.</p> <p>Bemark of state’s counsel in bis closing argument, “My experience lias been that it is difficult to get evidence against a bootlegger; they always work and squirm to keep from testifying,” being a reference to a matter of common observation, was not prejudicial error; not being the statement of a substantive fact pertinent to the issue.</p>

Pugh, Judge. Action by Lillian Yielding, pro ami, against the Semple School for Girls. Judgment for plaintiff, and defendant appeals. Held: but came on to Birmingham on the same train with the appellee. After five or six Weeks the appellant sent the other trunk to the appellee.

Action by G. P. Madison against the Western Railway of Alabama. Judgment for plaintiff, and defendant appeals.

<p>On Rehearing.</p> <p>1. Appeal and ' Error <&wkey;655(2) — Bill of Exceptions — Sufficiency.</p> <p>The bill of exceptions, though containing a full stenographic report of the trial' below, was not subject to motion to strike as in violation of circuit court practice rule 32 (Code 1907, p. 1526), where the matters set out were necessary to furnish the Court of Appeals a true history of the trial in the lower court and to make clear the exceptions reserved for review.</p> <p>2. Sales <&wkey;235(4) — Record as Notice — Mistake in Record.</p> <p>Although Code 1907, § 3386, provides that conveyances of personal property are inoperative against creditors and purchasers without notice until recorded, and a subsequent purchaser has no notice of anything not contained in the record, yet, by reason of section 3369, providing that a conveyance is operative as a record from the day of its delivery to the judge of probate, a mistake in recording a mortgage does not prejudice the rights of mortgagee as against a Subsequent purchaser.</p> <p>3. Evidence <&wkey;178(4) — Parol Evidence-Lost Mortgage.</p> <p>The contents of an admittedly lost mortgage can be proven by parol testimony.</p> <p>4. Judgments &wkey;>711 — Conclusiveness—Persons Not Parties — Indebtedness on Mortgage.</p> <p>Judgment, in suit between mortgagee and mortgagor, adjudicating the amount of indebtedness secured by mortgage, did not preclude defendant in mortgagee’s action against a third person for conversion from showing that at time of alleged conversion the debt secured by the mortgage had actually been paid.</p>

<p>1. Municipal Corporations i&wkey;122(3) — Ordinances — Mode, op Proof.</p> <p>The mode of proof of ordinances and resolutions of municipal corporations authorized by Code 1907, § 12591, book or'pamphlet form purporting to be published by authority of the council, is not exclusive but cumulative.</p> <p>2. Municipal Corporations <&wkey;122(3) — Ordinances — Proof.</p> <p>Under Code 1907, § 1258, as amended by Acts 1911, p. 632, § 1, providing for recording ordinances, as soon as passed, in a book kept for that purpose, and for publication of the ordinances in a newspaper, and that immediately following the record of an ordinance the clerk shall certify the time and manner .of its publication, which certificate shall be presumptive evidence of its recited facts, an ordinance so recorded and certified may be proved by the book; proof of book’s authenticity being made by the mayor.</p> <p>3. Municipal Corporations <&wkey;110 — Ordinances — Publication — Clerk’s Certificate.</p> <p>The clerk’s certificate required by Code 1907, § 1258, as amended by Acts 1911, p. 632, § 1, merely to state time and manner of publication of an ordinance, need not itself be dated.</p> <p>4. Criminal Law <&wkey;1170%.(3) — Harmless Error — Ruling on Evidence.</p> <p>Overruling defendant’s objection to question, when the ordinance, charged to have been violated, was passed, was harmless; witness saying he did not know.</p> <p>5. Criminal Law &wkey;3l036(8) — Review — Insufficiency of Evidence — Objection Below.</p> <p>The sufficiency of the evidence to justify the verdict not having been questioned below, and the judgment following the verdict, an assignment .of erroneous rendition of judgment presents nothing for review.</p>

<p>Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.</p> <p>J. liV. Strickland was convicted of violating an ordinance of the- Town of Samson, and he appeals.</p>

<p>Appeal from Circuit Court, Winston County ; T. L. Sowell, Judge.</p> <p>Assumpsit by W. B. O’Rear against the National Union Fire Insurance Company. Judgment for plaintiff, and defendant appeals.</p> <p>Count 1 was in Code form. Count 2 is as follows:</p> <p>Plaintiff avers that at the time of the issuance of the policy of insurance mentioned in count 1, and subsequently thereto, and before the time of trial, said defendant belonged to or was a member of a tariff association, and plaintiff claims of defendant the other and further sum of 25 per cent, penalty of the amount proven to be due plaintiff under said policy of insurance.</p> <p>Plea 5 was as follows:</p> <p>Plaintiff in his application for the policy sued on in this action made a declaration and warranty that, if any statements in his said application be other than full and true, and that in said policy of insurance issued to him it was agreed that, if any false statements were made in said application or otherwise, then said policy to be null and void. Defendant avers that said warranty was a material fact on which it issued said policy of insurance, and that the assured in his application stated to defendant’s agent that the building alleged to be destroyed by fire cost $800', and defendant avers that said building did not cost exee'eding $300, and that said plaintiff forfeited said contract of insurance by said false representation, and pleads this in bar of the action.</p> <p>The demurrers set up that the plea does not aver that the representations therein were false, or that they were knowingly false, or that they were made to deceive, or that injury resulted by reason of said representation. Plea 6 is substantially the same as 5.</p> <p>The assignments of error from 10 to 20, inclusive, refer to Exhibit O to and including Exhibit M to the answers of defendant’s interrogatories. Exhibit O was a letter to Mr. Nelson Reid, assistant secretary, from the general agent, calling his special attention to the report of Mr. Turner, the adjuster, on the claim of W. B. O’Rear. Exhibit D was a letter to Mr. Reid from the general agent advising that the company deny liability on this claim. Exhibit E is a letter to the general agent from Mr. Reid, the assistant secretary, with reference to a discrepancy in the amount claimed and the amount proven. Exhibit F was a letter from Turner, the adjuster, to R. M. Hendley, general agent, Memphis, Tenn., relative to the claim of O’Rear. Exhibit Gr was a letter from the general agent to the assistant secretary. The other exhibits were of a similar character. Charge § refused to defendant is as follows:</p> <p>If you do find in favor of plaintiff, the amount of his recovery should be limited to three-fourths of the value of the house at the time of the fire, together with 25 per cent, of that amount as a penalty under the law.</p>

Pugh, Judge. Action for trespass guare clausum fregit by E. P. Smith and Prank Krelhaus against H. N. Maloney and the McConnell-AnglinWhite Realty Insurance Company. Prom judgment for plaintiffs, defendants appeal.

<p>1. Criminal Law <&wkey;622(l) — Trial—Severance.</p> <p>In the absence of a motion for a severance by one of the defendants, who were jointly indicted, it is in the discretion of the trial court to proceed with the trial jointly or severally.</p> <p>2. Jury <&wkey;>79(3) — Selection of Jury.</p> <p>A defendant cannot complain that he is required to select a jury for his trial from the names on the venire other than the 12 juroí» that were engaged in their deliberation on another case at the same time.</p> <p>3. Witnesses <&wkey;347 — Credibility—Failure to Make Complaint.</p> <p>Where prosecuting witness testified that he recognized defendants as those who set fire to his house, and that defendants shot at him, it was proper on cross-examination to bring out that prosecuting witness made no complaint against defendant until two weeks later; this tending to discredit his testimony, since at common law one who has been robbed or knows that a felony has been committed is not only authorized to levy hue and cry, but bound to do it under pain of fine and imprisonment.</p> <p>4. Witnesses <&wkey;282 — Cross-examination-Leading Questions,</p> <p>The purpose of cross-examination being to sift the testimony, leading questions are permissible, but it is not permissible to ask misleading or loaded questions calculated to intrap the witness into a statement which he never intended to make, etc.</p> <p>5. Arson <&wkey;32 — Evidence—Threats—Admissibility.</p> <p>In a prosecution for arson, evidence that defendants had made threats against the son of the prosecuting witness, who lived in the house destroyed part of the time, held admissible to show motive.</p> <p>On Rehearing.</p> <p>6. Witnesses <§=>281— Cross-Examination.</p> <p>Wffiile it would not constitute reversible error for the court to permit on cross-examination questions otherwise proper which assumed facts of which there was no evidence, etc., the exclusion of such questions was not erroneous.</p>

<p>Criminal Law &wkey;260(ll) — Review—Trial Without Jury — Evidence..</p> <p>Where there was some evidence given ore tenus before the court sitting without a jury-tending to show that defendant was in charge of place where officers found liquors stored, the building not being used exclusively as a dwelling, and the Court of Appeals is unable to say that the conviction is plainly contrary to the great weight of the evidence, it will be affirmed.</p>

<p>1. New Trial <&wkey;71 — Grounds—Evidence.</p> <p>Where in a warehouseman’s action for storage all .the questions were contested, and evidence pro and con introduced under a full and fair charge, the court will not be put in error for overruling a motion for a new trial on the ground that the verdict was contrary to the evidence.</p> <p>2. Warehousemen <&wkey;25(5) — Liability eor Wrongeul Delivery.</p> <p>A warehouseman is liable for the delivery of goods to the wrong person.</p> <p>3. Warehousemen <&wkey;25(5) — Liability eor Goqds in Storage — Delivery to Wrong Person.</p> <p>Where the owner of goods in storage has been paid for them by the party to who-m they were delivered, there can be no recovery from the warehouseman by the owner, although the warehouseman has delivered the goods to the\ wrong person.</p> <p>4. Warehousemen <&wkey;34(2) — Liability eob Goods in Storage — Demand by Owner.</p> <p>In a warehouseman’s action for storage of cotton, where no demand was made by defendant for cotton alleged to have been converted by plaintiff until after suit was brought, defendant cannot, by plea of set-off or recoupment, recover for such cotton in that suit.</p> <p>5. Trial <&wkey;158 — Demurrer to Evidence-Motion to Exclude. •</p> <p>A motion to exclude evidence cannot be made to take the place of a demurrer to the evidence.</p> <p>6. Warehousemen <&wkey;13 — Duty to Issue Receipts — Liability eor Failure to Comply with Law.</p> <p>It is the duty of a warehouseman on receiving cotton for storage to issue a receipt for it as required by Code 1907, § 6131, and failing to do so, and the cotton being in bad condition, he is liable to the receipt holder for damages sustained by his failure to comply with the law.</p> <p>7. Warehousemen <&wkey;34(6) — Actions eob Storage Charges — Evidence.</p> <p>In-a warehouseman’s action to recover storage charged for cotton, the difference between plaintiff’s scales and other scales not shown to be correct was immaterial.</p> <p>8. Appeal and Error <&wkey;1050(l) — Review-Harmless Error.</p> <p>In a warehouseman’s action for storage charges for cotton, admission of evidence that defendant and another who shipped part of the cotton claimed by defendant to have been converted, were doing business together when the cotton was erroneously delivered to the third party, if error, was harmless.</p> <p>9. Warehousemen &wkey;»34(4) — Action por Storage Charges — Evidence.</p> <p>In a warehouseman’s action for storage charges on defendant’s cotton claimed by defendant to have been converted by plaintiff through fraudulent receipts and short weights, it was immaterial what loss defendant sustained generally on the cotton for which he had received receipts; the question not being what he had lost, but what he had lost by short weights or fraudulent receipts.</p> <p>10. Warehousemen <&wkey;34(6) — Action por Storage Charges — Evidence.</p> <p>In a warehouseman’s action for storage charges of cotton, evidence as to reweighing other cotton in the warehouse was immaterial.</p> <p>11. Warehousemen &wkey;s34(6) — Action por Storage Charges — Evidence.</p> <p>In a warehouseman’s action for storage charges of cotton alleged by defendant to have been converted by plaintiff, evidence tending to rebut the charge of fraud in weighing the cotton was competent.</p> <p>12. Warehousemen <&wkey;25(4) — Delivery—Necessity op Order.</p> <p>A warehouseman has no right to deliver goods in storage to any one except on the owner’s order.</p> <p>13. Evidence <&wkey;483(7) — Opinion—Correctness op Scales.</p> <p>In a warehouseman’s action for storage charges of cotton, where the correctness of his scales was questioned, such correctness was to be proven by standard'of weight, and not by opinion of cotton buyers.</p> <p>14. Appeal and Error <&wkey;1033(5) — Favorable Error — Instructions.</p> <p>In a warehouseman’s action for storage charges of cotton, an instruction at plaintiff’s request favorable to defendant cannot be complained of by defendant, although involved and misleading.</p> <p>15. Warehousemen <&wkey;34(5) — Liability por Goods Stored — Burden op Proof.</p> <p>In a warehouseman’s action for storage charges on cotton alleged by defendant to have been converted by plaintiff, the burden is on defendant to prove his debt, and, if the evidence is uncertain, verdict should not be rendered for defendant.</p> <p>16. Warehousemen <&wkey;34(8) — Liability for Conversion — Measure op Damages.</p> <p>In warehouseman’s action for storage charges of cotton alleged by defendant to have been converted by plaintiff, an instruction erroneously stating the rule of damages for conversion as being whatever the cotton had been worth on the market, since demand for the cotton had been made by defendant, was properly refused.</p> <p>17. Warehousemen &wkey;>34(8) — Liability por Conversion — Measure op Damages.</p> <p>In a warehouseman’s action for storage charges of cotton alleged by defendant to' have been converted by plaintiff, an instruction basing the measure of damages on the highest market value since defendant demanded the cotton, and if such amount exceeded plaintiff’s demand, to allow defendant a verdict for the excess of his demand over plaintiff’s demand, not to exceed $100, was erroneous.</p>

<p>1. Sales <&wkey;479(15) — Conditional Sales — Obligation to Pay Price.</p> <p>The retention of title by seller of personal property in purchase-money note does not prevent the enforcement of the obligation to pay the entire purchase price, and the retention of title is at most a security for the payment of the purchase money.</p> <p>2. Execution <&wkey;181 — Claims by Third Persons.</p> <p>Under Code 1907, § 6039, any person holding a claim, legal or equitable, to personal property levied on, may institute a claim suit to try his rights to it at law as though he had the legal title.</p> <p>3. Execution <&wkey;lS4^-CLAiMS to Property-Sufficiency.</p> <p>The claimant to property levied on need not propound his claim so as to set out at length what general right or title he may have.</p> <p>4. Execution <&wkey;184 — Replevin—Affidavit of Claim — Sufficiency.</p> <p>If claimant advanced money to pay note in which title to automobile was retained pending payment therefor and he was entitled to be subrogated to the rights of the holder of the note, his affidavit of claim that he had a just claim to the automobile levied on, viz. that he .holds title to and owns said property, is sufficient.</p> <p>5. Subrogation <&wkey;31 (4) — Rights of Person Entitled to Subrogation.</p> <p>When a party is entitled to subrogation, he is also entitled to have assigned to him every judgment, specialty, or other security held by the creditor in respect to the debt, whether satisfied or not, to the extent necessary to protect him from loss.</p> <p>6. Subrogation . &wkey;>23 (2) — Payment oe Another’s Debt — “Volunteer.”</p> <p>One who pays off another’s obligation secured by mortgage or advances money for its payment at the instance of the debtor and for his benefit is not a mere stranger or “volunteer,” but is entitled to subrogation to rights of the original creditor.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Volunteer.]</p> <p>7. Subrogation. <&wkey;27 — Payment oe Another’s Debt.</p> <p>It is not essential to conventional subrogation that the creditor should be a party to the agreement between the debtor and a third party, and the contract supporting the subrogation may be between the party to be subrogated and either the creditor or the debtor.</p> <p>8. Subrogation <&wkey;27 — Contract—Writing.</p> <p>Itris not essential to subrogation that the contract be in writing.</p> <p>9. Subrogation <&wkey;41(6) — Evidence—Admissibility.</p> <p>Where defendant bought automobile and gave nóte in which title was retained in seller and claimant furnished money to pay the note and then, when defendant’s general creditor sought execution, brought claim suit alleging that he was subrogated to the rights of the seller, the contract between the seller and the debt- or and conversations between the debtor and claimant were admissible to show subrogation.</p> <p>10. Subrogation <&wkey;23(2) — Questions eor J ury— Sufficiency.</p> <p>Where defendant bought automobile and gave note in which title was retained in seller and claimant furnished money to pay the note and then, when defendant’s general creditor sought execution, brought claim suit alleging that he was subrogated, whether there was a conventional subrogation held for the jury.</p>

Claim suit by James A. Lewis against the Bank of Mobile. Judgment for claimant, and from judgment granting a motion to set aside judgment and for new trial, claimant appeals. This is a claim suit, in which the appellee was the plaintiff and the appellant the claimant in the court below. On May 24, 1916, the plaintiff sued out an attachment against the Auto Service Company and others on account of rent due under a lease signed by the defendants.

P. Troup, Judge. Habeas corpus by G. W. and Annie Cook against Joe Echols and Ida Echols to recover the custody of George Cook, an infant. From a decree denying the prayer of the petition the petitioners appeal. The response to the petition was: (1) That Cook had given the child to respondents. (2) That the respondent Joe Echols had adopted said child as required by law.

A. Pearce, Judge. Action by Sanders, Vann & Chalker against Mrs. Charlie Rodgers, wherein, on plaintiff’s motion, nonsuit was set aside, cause reinstated, and by leave of court the summons and complaint amended by adding Tom Hayes and Curtis Hayes as defendants, and by adding a count in trover. Erom judgment for plaintiff, defendant Curtis Hayes appeals.

uin Duke, Judge. Action by W. E. Harrison against the Louisville & Nashville Railroad Company for damages to stock. Judgment for plaintiff, and defendant appealed.

Merrill, Judge. . Action by Charles A. Stephens against the International Harvester Company to recover the statutory penalty for a failure to satisfy mortgages. Judgment for defendant on the pleadings, and xilaintiff takes nonsuit, with bill of exceptions.

<p>1. Evidence <&wkey;29--JuDiciAL Notice — Statutes.</p> <p>The court takes judicial notice of contents of Acts 1909, Sp. Sess. p. 303, and Loc. Acts 1911, p. 78.</p> <p>2. Taxation <&wkey;908 — Disposition of Tax— Statute — Repeal.</p> <p>Acts 1909, Sp. Sess. p. 303, making it the duty of the board of county commissioners to pay over to the municipality one-half of the money collected on property within the municipal limits for maintenance of roads, and Loc. Acts 1911, p. 78, particularly sections 15 and 29, giving the board of road commissioners exclusive control of funds, and providing for levy of taxes, being inconsistent, the former is repealed to the extent of their inconsistency, particularly in view of the repealing clause of the latter.</p>

<p>1. Mechanics’ Liens &wkey;>263(l) — Parties Defendant.</p> <p>Where timber purchased by contractor was used in erecting a tipple and underpass on a spur track of coal company, and plaintiff notified company of account against contractor, and had claim for lien recorded, suit for timber sold and to have established materialman’s lien was properly brought against both contractor and company in view of Code 1907, §§ 4766, 4774.</p> <p>2. Accord and Satisfaction <&wkey;ll(l) — Payment by Check — Failure to Accept in Full Payment.</p> <p>Where plaintiff received invoice incorporating deductions claimed by defendant with check attached, covering balance, and at bottom of invoice was receipt in full, to be signed by plaintiff, if correct, otherwise papers to be sent back for correction, there was no extinguishment of amount due in excess of check, though plaintiff cashed check, but did not sign receipt.</p> <p>3. Damages &wkey;208(l) — Notice of Special Circumstances — Question for Jury.</p> <p>In suit to recover balance on account for timber sold, whether plaintiff had notice of circumstances out of which special damages claimed by defendant by way of recoupment arose held, under the evidence, for the jury.</p> <p>4. Damages <&wkey;23 — Special Damages — Notice.</p> <p>In suit to recover balance on account for timber sold, defendant could not recoup for such damages as would not naturally flow from failure to deliver within time, unless plaintiff had notice of special circumstances out Of which such damages would naturally arise.</p> <p>5. Appeal and Error <5&wkey;1064(l) — Erroneous Instruction — Reversible Error.</p> <p>In suit on account for timber sold, in wbicb defendant sought to recoup for failure to deliver in time, an instruction which required of defendant the highest possible degree of diligence in attempting to mitigate damages was error demanding reversal.</p> <p>6. Damages &wkey;>62(4) — Duty to Mitigate.</p> <p>Where plaintiff failed to deliver timber within time, all that the law required of defendant was that he should use all reasonable and convenient care to diminish the amount of damages.</p>

<p>1. Fixtures <&wkey;7 — Heavy Engine — Annexation to Realty. \</p> <p>A 25,000-pound engine imbedded in and securely bolted to. heavy concrete foundation fastened to the ground, which had been so attached to ground by owner and for many years used for mining purposes, was a chattel real, being annexed to the realty and stationary in its character.</p> <p>2. Deeds <&wkey;47 — Conveyance oe Title to Engine — Defective Deed — Lack oe Witness.</p> <p>Bill of sale conveying engine, which had been so attached to land as to become a chattel real, where instrument had been subscribed by grantor by making of mark, and had been signed by only one attesting witness, was defective as a deed under Code 1907, § 3355, requiring two attesting witnesses in conveyance for alienation of lands where grantor is not able to sign his name. '</p>

<p>Appeal from Circuit Court, Coffee County; R. I. Jones, Judge.</p> <p>Action by Edie Wallace against tbe Sovereign Camp Woodmen of tbe World. Prom judgment for plaintiff, defendant appeals.</p>

E. Fort, Judge. Cuba Gambrell, alias, etc., was indicted for murder in the first degree. Prom an order of the circuit court in habeas corpusi proceeding allowing the defendant bail, the State appeals.

' Appeal from Circuit Court, Marshall County ; W. W. Haralson, Judge. Action in trover by T. R. Ratcliff against W- W. Wilson for the conversion of cotton and cotton seed. From a judgment for plaintiff, defendant appeals.

' Appeal from Law and Equity Court, Hale County; Charles Waller, Judge. Action by the Merchants’ Bank & Trust Company against J. A. Elliott & Son, a partnership, and others. From an order setting aside a verdict for plaintiff and granting defendants a new trial, the plaintiff appeals.

<p>Municipal Corporations <&wkey;639(l) — Building- OrdinanceComplaint por Violation.</p> <p>Complaint on prosecution by city of Birmingham, alleging repair by defendant of a roof in which was a chimney not forming part of an incombustible wall, and, refusal and failure of defendant to take it down and rebuild it in a certain way held not to show violation of either section 451 or 385 of city’s building ordinance.</p>

A. Pearce, Judge. Action by the Dothan Insurance Agency against the Atlantic Coast Line Kailroad Company for damages for failure to deliver a carload of damaged corn. From a judg- ment for plaintiff, defendant appeals.

<p>Criminal Law <&wkey;lO90(l) — Appeal—Bill of Exceptions.</p> <p>Judgment of conviction will be affirmed; there being no bill of exceptions, the clerk’s certificate showing expiration of time to present it, and no error appearing in the record.</p>

<p>1. Evidence &wkey;>243(4) — Declaration of Agent.</p> <p>Declaration of defendant’s general manager,, in charge of its warehouse, on inquiry by plaintiff as to what had been done with one of timbales of cotton shipped by plaintiff, consigned to B., in care of defendant, being with reference to a pending transaction, and made by him while acting within the scope of his au|¡hority, was admissible against defendant.</p> <p>2. Warehousemen &wkey;>25(5) — Liability for-. Misdelivery.</p> <p>Defendant, in whose care plaintiff shipped cotton, consigned to B., having as agent of the-carrier or bailee of plaintiff received it in its-warehouse, was liable for delivery of a bale-thereof to another than B., without authority from plaintiff.</p>

Leigh, Jr., Judge. Wiley Hannibal was convicted in the recorder’s court of the city of Mobile for the violation of a municipal ordinance, from which conviction he appealed to the circuit court, and was again convicted after trial by a jury which assessed his fine. In addition to the fine as assessed the court of its .own motion sentenced the defendant to three months’ hard labor> on the streets, and the defendant appieals.

<p>1. Appeal and Error t&wkey;643(5) — Record — Certificate of Clerk — Waiver of Irregu* larity.</p> <p>The omission of the clerk to set out the order reviving the suit in the name of the administrator, where original plaintiff had. died and his administrator had been substituted, was an irregularity not affecting jurisdiction of court on appeal, and was waived by joinder in error by appellee and submission without objection to the record.</p> <p>2. Detinue <&wkey;18 — Burden of Proof — Possession of Property.</p> <p>Ordinarily, plaintiff in detinue has burden of showing that defendant-at time of commencement of action was in possession of property, or had parted therewith wrongfully in order to elude the action.</p> <p>3. Detinue’ &wkey;>17 — Proof—Pleading.</p> <p>In view of Acts 1911, p. 33, plaintiff in detinue is not required to prove defendants’ possession of property, where defendants plead the general issue, for by such plea defendants admit their possession at the time suit was brought.</p> <p>4. Detinue <&wkey;17 — Proof.</p> <p>In detinue, where defendants’ ■ pleading of general issue made it unnecessary for plaintiff to prove defendants’ possession of property, under Acts 1911, p. 33, it was only necessary for plaintiff to prove a general or special property in the subject-matter of the suit and the right to its immediate possession.</p> <p>5. Detinue <&wkey;18 — Property Rights and Subject-Matter — Proof.</p> <p>In detinue, plaintiff can prove his general or special property in the subject-matter of the suit by showing that he acquired title from defendants jointly or severally through the same or different conveyances or from any other source.</p> <p>On Rehearing.</p> <p>6. Detinue &wkey;>17 — Disclaimer as to ‘Part of Property — Recovery of Other Property Sued for.</p> <p>Under the statute, disclaimer by one defendant in detinue as to part of property does not preclude plaintiff from recovery of other property sued for, and as to which the defendants pleaded the general issue upon establishing title and right to immediate possession thereof.</p>

<p>1. Bills and Notes <&wkey;537(3) — Indorsement —Consideration—Question foe Jury.</p> <p>In an action to recover on a note against an indorser where there was a sharp conflict in the evidence as to whether there was sufficient consideration for the indorsement, the question of want of consideration was one of fact for the, jury.</p> <p>2. Bills and Notes <&wkey;489(7) — Actions— Demand and Notice to Indorser.</p> <p>Facts which excuse demand and notice to the indorser are in law deemed proof of such demand and notice, and consequently an averment of demand and notice is proved by evidence of facts showing waiver thereof.</p> <p>3. Bankruptcy <&wkey;387 — Liability of Indorsee-Effect of Composition with Creditors by Bankrupt Maker.</p> <p>The confirmation of a compromise' by the bankrupt maker of a note with its creditors did not have the effect of releasing the indorser, particularly where the indorser urged the holder to file his claim in bankruptcy so as to reduce indorser’s liability by the amount of the dividend.</p>

<p>1. Appeal and Error &wkey;>1078(l) — Assignments of Error — Waiver.</p> <p>Assignments of error not insisted upon in appellant’s brief must be deemed waived.</p> <p>2. Trial <&wkey;260(l) — Instruction Already Given — Refusal.</p> <p>Refusal of defendant’s requested charge was not reversible error, where law stated therein was fully covered by charges given at defendant’s request, and also by oral charge of court.</p> <p>3. Appeal and Error &wkey;>1066 — Giving Abstract Instruction — Reversible Error.</p> <p>Evidence being without conflict that plaintiff saw street car approaching, instruction that if motorman saw plaintiff on the track failure to give warning by sounding gong constituted negligence was abstract, but its giving was not reversible error.</p> <p>4. Street Railroads &wkey;?99(13) — Use of Streets — Reciprocal Rights and Duties.</p> <p>It is as much the duty of one driving on a street car track to keep a lookout in each direction for approaching cars when sufficiently near the track or upon the track as it is the motorman’s duty to keep a lookout.</p> <p>5. Street Railroads <&wkey;81(3), 90(4) — Speed of Oars — Duty as to Persons on Track.</p> <p>It is the duty of the carrier to operate its cars in public streets under such speed that they may, with skilled application, be stopped and injury averted; but the operative of the car may assume that apparently adult persons, or property such as horses and vehicles in control of persons apparently adult, will leave the track in time to avert injury.</p> <p>6. Street Railroads &wkey;>93(4) — Duty of Motorman as to Person on Track.</p> <p>After danger to person in close proximity to track or upon track becomes apparent, it is the duty of the motorman to use such means as are in his power to avert injury.</p> <p>7. Street Railroads &wkey;>93(2) — Duty of Motorman on Approaching Crossing.</p> <p>The court erred in instructing that it is the duty of those in charge of street cars to retain such control on approaching a crossing as to be able to bring them to a full stop before striking one in the act of crossing track.</p> <p>8. Trial <&wkey;142, 143 — Affirmative Charge.</p> <p>The affirmative charge should never be given when there is a material conflict in the evidence, or where there is evidence affording an inference adverse to the right of recovery by the party requesting the charge.</p> <p>9. Street Railroads &wkey;>117(36) — Collision with Street Car — Wantonness — Evidence.</p> <p>In action for injuries due to collision between a wagon driven by plaintiff and one of defendant’s street cars, evidence held to warrant submission of question of wantonness.</p> <p>10. Damages <&wkey;216(l) — Personal Injuries.</p> <p>Instruction that in determining amount of damages disabling effects of plaintiff’s injury or injuries, past and prospective, loss of time, loss of profits, doctors and medicine bills reasonably incurred, incapacity to do as profitable labor as before the injury, and mental and physical suffering may be considered, held properly given.</p>

<p>Appeal from Criminal Court, Jefferson County; Wm. E. Fort, Judge.</p> <p>Frank F. Best was convicted of failing to pay a street tax, as provided in an ordinance of the City of Birmingham, and appeals.</p>

<p>1. Streets Railroads <&wkey;110(l) — Injuries on Track — Trespass by Plaintiff — Complaint.</p> <p>Averments of complaint that street railroad’s servants negligently ran car against buggy in which plaintiff was sitting while on a street in a city, held sufficient to show plaintiff was not a trespasser on the railroad’s tracks, so that it owed her the duty not to negligently injure her.</p> <p>2. Trial <&wkey;296(3) — Refusal of Instruction.</p> <p>In action for injuries to plaintiff sitting in buggy struck by street car, refusal to defendant of charge asserting generally principle of law applicable to ease, held harmless, in view of charges given, asserting same proposition as applied to evidence, hypothesizing only possible theories on which doctrine of unavoidable accident could have applied.</p> <p>On Rehearing.</p> <p>3. Pleading <&wkey;208 — Demurrer—Specification of Grounds.</p> <p>Under Code 1907, § 5340, grounds of demurrer to complaint against street railroad for injuries while crossing its tracks in a buggy, held not specific enough to put trial court in error for overruling them.</p>

Bernéy, Judge. Action by P. W. Herrmann against Mobile County. Prom judgment of nonsuit, plaintiff appeals. Action by appellant against the appellee for costs claimed to be due him as clerk, in certain prohibition cases, where seizures of liquors were made and no one appeared as claimant.

Brickell, Judge. Earley Mitchell and Coleman Prince were convicted under an indictment charging them with placing an obstruction or impediment upon railroad tracks in a manner rendering liable any engine, car, or other vehicle thereon to be thrown from the track. From the judgment of conviction, they appeal.

<p>1. Costs &wkey;>25 — Action in Tort.</p> <p>Where plaintiff in tort action recovers $10 .damages, he is entitled, under Code 1907, § 3663, to recover no more costs than damages, notwithstanding section 3662, as amended by act approved September 16, 1915 (Laws 1915, p. 598), giving successful party full costs; the provision of latter statute having no application to cases falling within provisions of section 3663.</p> <p>2. Appeal and Error t&wkey;719(4) — Failure to Assign Error — Waiver.</p> <p>Appellant, by failing to assign errors on the ruling of the court on demurrers waives any benefits arising from such rulings.</p> <p>3. Appeal and Error &wkey;>936 (1) — Review — Presumptions — Costs—Nature of Action.</p> <p>In determining whether lower court was invested with a discretion in taxing costs under Code 1907, § 3662, as amended by Laws 1915, p. 598, and section 3663, the court on appeal, in determining whether action is ex delicto or ex contractu, will liberally construe the complaint in order to sustain the judgment.</p> <p>4. Sales &wkey;>273(2) — Implied Warranty-Manufacturer.</p> <p>Where manufacturer sells articles of his own make, in absence of express warranty, implied warranty arises that such articles are reasonably fit for the purpose intended.</p> <p>5. Sales <&wkey;274r-FooD — Implied Warranty —Fitness for Human Consumption — Care in Preparation.</p> <p>Manufacturers or packers of foods, beverages, drugs, condiments, and confections intended for human consumption impliedly warrant that their products are fit for human consumption, and that they have used in the selection and preparation of such articles, that degree of care ordinarily exercised by persons skilled in the business of preparing and packing'articles of this character for distribution or sale to the general public.</p> <p>6. Sales <&wkey;255 — Food—Implied Warranty —Retailer.</p> <p>Manufacturers’ and packers’ implied warranty that food is fit for human consumption is not for the benefit of the retailor^ who purchases in large quantities for resale.</p> <p>7. Sales <&wkey;255 — Food — Liability of Retailer.</p> <p>Retailer, purchasing large quantities of food from a reputable manufacturer or dealer’, without imperfections discoverable in the exercise of ordinary care, by persons skilled and experienced. in dealing and supplying goods to general public, is not liable to consumer on implied warranty.</p> <p>8. Action <&wkey;27 (1) — Costs i&wkey;25 — Nature of Action^-Contract — Construction of Complaint.</p> <p>Count of complaint stating facts from which law would imply a warranty that certain beverage sold plaintiff by defendant was fit for human consumption, and that defendant had used that care ordinarily exercised by persons skilled in the business of preparing such drinks, and further stating facts showing a breach of such warranty, held to state a cause of action ex contractu, so that costs were properly awarded in court’s discretion, as authorized by Code 3907, § 3662, as amended by Laws 1915, p. 598, and not limited to amount of recovery as provided by Code 1907, § 3663. ■</p>

W. Pearson, Judge. Action by Pauline Weil against the Travelers’ Insurance Company. Judgment for defendant. and plaintiff appeals. The action was based on the policy of life insurance issued, by appellee on January 21, 1898, on the life of Charles W. Jones, whereby it agreed to pay to. the executors, administrators, or assigns of said Jones $1,000 on proof of his death.

<p>1. Indictment and Information &wkey;>169 — Evidence Admissible.</p> <p>There is no rule of law or practice that confines the prosecution on the final trial to witnesses or evidence offered before the grand jury, and any competent evidence that tends to support the issue embodied in the indictment is admissible.</p> <p>2. Criminal Law <&wkey;409, 517(3) — Confessions and Admissions — Predicate.</p> <p>Although confessions and inculpatory admissions are not admissible, in absence of evidence tending to establish corpus delicti, evidence of commission of the offense, not by the defendant necessarily, but by some criminal agency, is sufficient for their admission.</p> <p>3. Criminal Law &wkey;>695(5) — Specific Objection-Other Grounds — Waiver.</p> <p>The defendant, by an objection upon a specific ground stated, waives all others.</p> <p>4. Criminal Law <&wkey;670 — Exclusion of Evidence.</p> <p>• Where the relevancy of testimony sought by questions asked on cross-examination, to which objections were sustained, did not appear from the questions, and the court was not informed as to what the answers would be, the ruling was not erroneous.</p> <p>5. Lewdness &wkey;»ll — Question for Jury.</p> <p>Evidence tending to show the relation of intimacy between defendant and his paramour, when taken in connection with testimony showing defendant’s inculpatory admissions, held sufficient to justify the submission of the case to' the jury.</p>

<p>1. Jury <&wkey;=>70(7) — Impaneling—Special Venire in Capital Cases.</p> <p>Where the court, trying a prosecution for murder, ordered that 10 special jurors be drawn and summoned to appear on day of trial, who, together with 50 jurors to serve during second week of court, should constitute venire from which jury should be drawn to try defendant, but only 47 of the regular jurors were summoned, and only 57 names were served on defendant, his conviction cannot stand.</p> <p>3. Criminal Law &wkey;>631(l) — Service op List op Jurors — Capital Case.</p> <p>Where the court, trying prosecution for murder, ordered that 10 special jurora be drawn and summoned to appear on day of the trial, who, together with 50 jurors to serve during second week of court, should constitute venire from which jury should be drawn to try defendant, but only 57 names were served on defendant, conviction will not stand.</p>

<p>Vagrancy <&wkey;l — Able-Bodied Person — Regular Employment.</p> <p>In prosecution for vagrancy in violation of Code 1907, § 7843, subd. 3, it must be shown that defendant is an able-bodied person and that he did not have regular employment.</p>

<p>1. Criminal -Law <&wkey;364(7) — Evidence—Res Gestas.</p> <p>In prosecution for buying, receiving, or concealing stolen property, trial court should have permitted defendant to explain facts and circumstances under which property in question was received by him, and statements made to him at time of delivery by person who committed larceny; such matters being part of res gestae.</p> <p>2. Criminal Law <&wkey;396(2) — Evidence — Whole oe Conversation.</p> <p>In prosecution for buying, receiving, or concealing stolen property, where state was permitted to prove part of conversation which took place between defendant and person who committed larceny and delivered property to him at time of delivery, defendant should have been permitted to prove whole of conversation.</p>

<p>Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.</p> <p>Action between J. J. Elliott and O. M. Davis. From a judgment denying motion for new trial, the former appeals.</p>

<p>1. Appeal and Error <&wkey;931(l), 1008(2) — Finding Based on Conflicting Evidence —Review.</p> <p>Where the only conflict in the evidence was as to one issue of fact, held that issue would be treated as determined in favor of defendant appellee, and finding of trial court on the issue, jury having been waived, not disturbed on appeal.</p> <p>2. Mortgages &wkey;199(l) — Rents and Profits.</p> <p>Until the mortgagee actively intervenes for the purpose of intercepting the rents, incomes, and profits of mortgaged real estate, even after default in the payment of the mortgage debt, they belong to the mortgagor.</p> <p>3. Mortgages <&wkey;187, 197 — Tenant at Will —Title to Crop.</p> <p>In the absence of notice to quit possession or other steps by mortgagee to recover posses•sion, the mortgagor is not a wrongdoer or trespasser, but a mere tenant at will of the mortgagee, entitled, under Code 1907, § 4733, to claim the fructus industriales or emblements, if the crop is sown before notice to quit by the mortgagee.</p> <p>4. Landlord and Tenant <&wkey;239 — Lien for Rent.</p> <p>The landlord’s lien for rent is a creature of the statute, and only exists .when crops are grown “on rented lands,” and is dependent upon contractual relation of landlord and tenant. Code 1907, § 4734.</p> <p>5. Chattel Mortgages <&wkey;138(3) — Landlord’s Lien — Priority of Mortgage Lien.</p> <p>Where, notwithstanding default in payment of indebtedness secured by real estate mortgage, mortgagor remained in possession, planted a crop, and gave a mortgage thereon to defendant, defendant’s mortgage conferred upon him, as to the debt secured, a title and lien superior to the landlord’s lien conferred upon the real estate mortgagee by subsequent foreclosure of the real estate mortgage and rental of premises to mortgagor.</p>

<p>1. Chattel Mortgages <&wkey;12 — Crops—Interest in Land.</p> <p>A mortgagor of a crop to be grown must have some interest in the land on which the crop is to be grown at the time of the execution of the mortgage.</p> <p>2. Chattel Mortgages <&wkey;229(3) — Mortgage of Crop — Action by Mortgagee Against Purchaser — Burden of Proof.</p> <p>Crop mortgagee, suing purchaser of crops, has the burden of proving mortgagor’s interest at time of execution of mortgage in the land on which the crops* 1 covered by mortgage were grown, and that the crops sold to defendant purchaser were raised on such lands.</p> <p>3. Appeal and Error <&wkey;1027 — Review — Harmless Error.</p> <p>In crop mortgagee’s action against purchaser, where there was no evidence that mortgagor at time of execution of mortgage had an interest in the land on which the crops covered by the mortgage were to be grown, or that the crops purchased were raised on such land, errors in the trial which did not prevent mortgagee from proving such facts held harmless on mortgagee’s appeal from judgment entered on directed verdict for purchaser.</p>

Action by F. M. Martin & Son against J. D. Roy. Judgment for plaintiff, and defendant appeals. Action by plaintiff (appellee here) against defendant (appellant) for breach, of warranty against incumbrances. From a judgment for plaintiff defendant appeals.

B. Foster, Judge. Action by J. S. McGee against the Eutaw Ice, Water & Power Company, to recover damages for wanton breach of duty in disconnecting water supply. From judgment for plaintiff, defendant appeals.

Arthur Benjamin was convicted of violating an ordinance of the city of Montgomery, and he appeal's. The appeal was perfected and filed in the office of the clerk of the city court on January 23, 1917, a conviction was had and an appeal taken, and the cause was reversed, and afterwards, on the 5th day of February,' 1918, defendant filed a demand for a jury trial, which was denied him.

<p>Petition for common-law certiorari by John S. Curtis, as Judge of' the County Court of Winston County.</p>

Action by John C. O’Connell against the National Surety Company on a bond given by one Willis as principal, and said company as surety. From the judgment rendered, the surety company appeals.

Turner, Judge. Action by Mrs. Mattie Emma Hestle against the Louisville & Nashville Railroad Company for damages for failure to deliver a trunk and its contents. From a judgment for defendant, plaintiff appeals.

<p>1. Master and Servant <&wkey;3(2) — Creation-Construction oe Agreement.</p> <p>Agreement whereby first party advanced the money with which to'buy stock of goods to be sold by second party, the proceeds to be first applied to repayment to first party of money advanced, and the profits thereafter to be equally divided, was, as between the parties a contract of employment.</p> <p>2. Partnership <&wkey;30 — Creation—Profits.</p> <p>An agreement whereby one party is to share in the profits alone does not create a partnership.</p> <p>3. Partnership <&wkey;30 — Creation — Third Parties — Participation in Profits.</p> <p>Agreement, whereby a stock of goods purchased with money advanced by one party is to be sold by the other party, the second party to participate in profits after repayment of money originally invested, is, as to third parties, a partnership in the enterprise of selling such stock of goods, though second party had no interest in the capital invested.</p> <p>4. Partnership <&wkey;125 — Liability of Partner-Principle of Agency.</p> <p>The liability of one partner for the acts of his copartner is founded on' the principle of agency.</p> <p>5. Partnership <&wkey;128 — Liability of Partner-Scope of Partnership Business.</p> <p>A partner is not bound by the unauthorized acts of his copartner in matters not within the apparent scope of the partnership business.</p> <p>6. Partnership <&wkey;371 — Limited Purpose— Liability.</p> <p>If the purposes of the partnership are limited and special, third persons cannot obtain credit on the faith of the firm in relation to a matter foreign to its objects.</p> <p>7. Partnership <&wkey;135 — Liability of Partnership-Individual Credit of Partner.</p> <p>Where a partner borrows money or purchases goods on his own individual credit alone, the subsequent application of such money or goods to the uses of the partnership does not give a creditor an action against it.</p> <p>8. Partnership <&wkey;126 — Implied Authority —Scope of Business.</p> <p>Bach partner has implied authority to bind the firm and each member thereof by contracts and obligations executed in the firm name and which are within the scope of the firm’s business, as such business is ordinarily conducted.</p> <p>9. Partnership <&wkey;136 — Firm Name — Use of Individual Name of Partner.</p> <p>Where the individual name of a partner is adopted as the firm name, its use in transaction connected with the firm business and within the apparent scope of the business being conducted is binding on all the partners.</p> <p>10. Partnership <&wkey;141 — Purchase of Necessary Stock.</p> <p>Partners engaged in the sale of merchandise are bound by such purchases as are necessary and appropriate for keeping up the stock.</p> <p>11. Partnership <&wkey;164 — Liability of Dormant Partner.</p> <p>A dormant partner, being one of the proprietors of a business, is liable to any creditor of the firm for any obligation incurred during his connection with it.</p> <p>12. Partnership &wkey;>141 — Liability of Partner-Purchase of Goods.</p> <p>Where partners engaged in joint enterprise, whereby particular stock of goods is purchased with money advanced by one to be sold by other under agreement to share profits, and latter with consent of former in addition to selling particular stock so purchased continues in mercantile business buying other goods as needed,the former is bound by purchases for goods; such continuance in mercantile business being in effect, as to third parties, a broadening of scope of original agreement.</p> <p>13. Partnership <&wkey;27 — Creation—Operation of Law.</p> <p>Where third parties are concerned, a partnership may arise by operation of law without inquiry into, or in direct opposition to, the express intention of the parties.</p> <p>14. Partnership <&wkey;213(l) — Actions—Sufficiency of Complaint.</p> <p>In action to recover price of goods purchased by defendant’s alleged partner, complaint held to sufficiently allege operation of mercantile business in which defendant and purchaser of goods were partners.</p>

<p>Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.</p> <p>Action between S. A. Washburn and the Johnson Bros. Company. From a judgment in favor of the latter, the former appeals.</p>

W. Pearson, Judge. Mark Bazzell was convicted of false pretense, and he appealed.

<p>Criminal Law <&wkey;995(4) — Sentence — Payment oe Costs.</p> <p>Where accused was sentenced to hard labor for a specified term and also to a sufficient additional number of days at 75 cents a day to pay the costs, the sentence for costs was erroneous in not specifying the number of days, as required by Code 1907, § 7635.</p>

R. Leigh, Jr., Judge. John H. Jackson was prosecuted by the City of Mobile. On appeal from the recorder’s court he was convicted and sentenced, and he appeals.

Edgar Bachelor was convicted of violating the prohibition law, and appeals. The following is the plea referred to; The defendant says the state ought not to further prosecute this indictment against him, because before the finding of said indictment a criminal prosecution against him for the identical offense charged in said indictment was begun in the county court of Elmore county, and said prosecution is still pending.

<p>1. Master and Servant <@=395 — Employment of Child — Liability for Injuries — Mines.</p> <p>In view of Acts 1915, p. 193, § 6, subd. 11, mine owner, who operates mine or for whom mine is operated by agents or employes, who employs, or permits to be employed, child under</p> <p>16 years of age is liable for injuries to the child resulting from risk or danger incident to the work in and about the mine.</p> <p>2. Master and Servant <&wkey;95 — Injury to Child Employé — Mines—Liability of Owner.</p> <p>Mine owner is not liable for injuries to child under 16 years of age employed in a mine, where owner had not retained supervision and control of the mine to such an extent that it could have prevented the employment of the child.</p> <p>3. Pleading <@=3433(6) — Sufficiency of Complaint — Order by Verdict.</p> <p>Where complaint is not demurred to on the ground of want of necessary allegations, the complaint will sustain a verdict if any necessary allegations can be inferred from the allegations made.</p> <p>4. Master and Servant <&wkey;258(8) — Injuries to Child Employé — Action for Damages —Sufficiency of Complaint.</p> <p>In action against mine owner for injuries to child employe, the authority of the mine owner to prevent the employment of the child in violation of statute should be stated in clear and unequivocal allegations.</p> <p>5. Pleading <&wkey;433(8) — Order by Verdict-Sufficiency of Complaint.</p> <p>In action against mine owner for injuries to child employé, complaint held to sustain verdict for plaintiff, though there was no specific allegation that owner retained supervision and control of the mine to such an extent that it could have prevented the employment of the child, where it alleged that injuries were caused by “defendant’s agents or servants who were at the time intrusted by the defendant with superintendence, and while acting within the line and scope of their authority permitted or suffered plaintiff to bo employed” etc.; the authority to employ child being inferred from such allegation.</p> <p>6. Master and Servant <&wkey;204(2) — Injuries to Child Employé — Mines,—Assumption of Risk.</p> <p>In action against mine operator for injuries to child employé under 16 years of age, the defense of assumption of risk cannot be invoked in view of Acts 1915, p. 193, § 6, subd. 11.</p> <p>7. Master and Servant <&wkey;228(2) — Injuries to Child Employé — Mines—Contributory Negligence.</p> <p>In action against mine operator for injuries to employé under 16 years of age, the defense of contributory negligence cannot be invoked, in view of Acts 1915, p. 193, § 6, subd. 11. ,</p> <p>8. Master and Servant <&wkey;95 — Employment of Child — Duty of Mine Operator.</p> <p>That mine foreman told employé under 16 years of age not to lie down and go to sleep for fear of ear running over him does not excuse mine operator from duty of keeping such child out of mine, under Acts 1915, p. 193, § 6, subd. 11.</p> <p>8. Witnesses <&wkey;392(l) — Impeachment — Contradictory Written Statement.</p> <p>In action for injuries to child employé involving question of whether employé was 16 years of age, testimony as to note from employé’s mother to employer, stating age, offered to impeach mother’s testimony as to employe’s age, was inadmissible, where the question did not fix the date of such note.</p> <p>10. Witnesses <&wkey;3S8(2) — Impeachment — Predicate.</p> <p>In action for injuries to child employé involving question of employé’s age, evidence as to contents of note, stating age, sent employer by employé’s mother, offered for purposes of impeaching mother’s testimony as to age, was inadmissible without a proper predicate being laid as to the mother.</p> <p>11. Witnesses <&wkey;392(l) — Impeachment — Secondary Evidence.</p> <p>Where letter is offered to impeach sender’s evidence, contents of letter must be shown by the letter itself, or satisfactory proof of its loss or destruction must be offered as a predicate to the introduction of parol evidence thereof.</p> <p>12. Evidence <&wkey;67(l), 184 — Secondary Evidence-Presumption.</p> <p>Where there was evidence that letter was in defendant’s possession a short .time prior to the trial, secondary evidence of its contents was not admissible on behalf of defendant; it being presumed that the note continued in defendant’s possession.</p> <p>13. Master and Servant <&wkey;291(3), 293(6)— Injuries to Employé — Action for Damages — Instruction.</p> <p>In action against mine owner for injuries to employé under 16 years of age, an instruction that plaintiff was entitled, to recover if he had been employed by defendant through its authorized agent, and was hurt while under 16 years of age in defendant’s mine, held unwarranted under pleadings and the evidence.</p> <p>14. Appeal and Error <&wkey;1066 — Review-Harmless Error.</p> <p>An instruction on an issue not contemplated by pleadings was not prejudicial to appellant, where the instruction required appellee to prove facts of which there was no evidence.</p> <p>*15. Infants &wkey;>102 — Injuries to Child Employé — Action for Damages — Instruction.</p> <p>In action for injuries to child employé, instruction, authorizing jury to consider that employé’s father was interested in the result of the case, was properly refused, since recovery would not become the property of the parents.</p>

Brickell, Judge. Action by Lucy Mitchell Farrell against Betts & Betts. Judgment for defendant, and plaintiff appeals. Action on the common counts by appellant against the appellees for money had and received. The defendants pleaded the general issue in short by consent, with leave to give in evidence any facts that would constitute a defense to the action.

Sharp, Judge. Proceeding by the State, on the relation of C. T. Rainbow, against M. Y. Henry, as Treasurer of Jefferson County. From a judgment awarding a writ of mandamus, directed to the treasurer, ordering him to register a witness certificate against the fine and forfeiture fund of the county, the Treasurer appeals.

<p>1. Landlord and Tenant @=>262(3) — Landlord’s Lien — Plea.</p> <p>In tenant’s suit for recovery of personalty and for conversion of the same property, defendant landlord’s special plea, specifically stating that a lien arose under lease which expired September 30, 1916, was not demurrable on ground that it failed to state when lien arose.</p> <p>2. Landlord and Tenant @=243 — Landlord’s Lien — Existence.</p> <p>A landlord’s lien under Code 1907, § 4747, is complete whether or not the landlord takes steps to enforce it in a court of law.</p> <p>3. Landlord and Tenant @=254(2) — Waiver oe Lien — Demand eor Property.</p> <p>Where tenant’s demand for property held by landlord under his lien was not accompanied by offer to pay rent due or a tender of rent due, demand was properly rejected, and landlord’s unqualified refusal did not waive his lien.</p>

<p>Appeal from Circuit Court, Mobile County; Saffold'Berney, Judge.</p> <p>Action by Anna C. Smith against the Bank of Mobile, N. B. A. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error <&wkey;171(3) — Review-Special Pleas.</p> <p>Where evidence is offered without objection, tendering a defense required to be specially pleaded, and the trial court, in disposing of the case, takes notice of the defense thus tendered, and submits the issue to the jury, the case, on appeal, will be treated as if the issue was properly presented by special plea.</p> <p>2. Waters and- Water Courses <&wkey;203(l)— Water Supply — Liability eor — Use in Common.</p> <p>Where there is but one water connection, and the water furnished is used in common by two parties, they are jointly liable for the rents in arrears, though the house was rented in the name of but one of the parties, and the water company had no knowledge that the water was being used by the other party.</p> <p>3. Waters and Water Courses <&wkey;203(13)~ Water Supply — Waiver.</p> <p>Water supply company, by turning on water at instance of user liable for rents in arrears, did not waive right to turn off water upon user’s failure to pay such rents, where the water was turned on upon representation of the user that he had just moved into the house, without the knowledge of the company that he had lived in the house for some' time, and, having used the water jointly with party in whose name the house was rented, was liable therefor.</p>

<p>Appeal from Circuit Court, Mobile County; C. A. Grayson, Judge.</p> <p>Action by Mrs. A. E. York against W. H. Kemp for damages for malicious prosecution. Judgment for plaintiff, and defendant appeals.</p> <p>The second plea is that the defendant says that the said cause in which plaintiff was arrested was tried in the inferior criminal court from which said warrant issued, and that the plaintiff was convicted of the offense for which she was arrested in said inferior criminal court.</p> <p>Plea 3 sets up the advice of counsel sought and action thereon in good faith.</p> <p>The case against the plaintiff in the inferior court was willfully or wantonly placing or depositing poison or poisoned substance in the yard or-other lands or premises of another without the consent of the owner thereof. It appears that the case against Mrs. York was tried in the inferior criminal court, that she was convicted, and on the same day took an appeal to the city court of Mobile, where the case was later nol. pros’ed.</p>

Foster, Judge. Assumpsit by Strickland Bros. Machine Company against Joseph P. Van Derveer and A. R. Aldridge and others. Judgment for plaintiff, and defendants appeal. The facts sufficiently appear. The following charges were requested and given for the plaintiff: Assignment 3.

Milton Upshaw was convicted of larceny, and he appeals. The witness Yates testified that he was a special agent of the Western Railway of Alabama ; that the railroad maintained a warehouse in Montgomery county, Ala., and that there was missing from the warehouse, after they had been put in the warehouse the following articles: A case of overalls valued at $25, a barrel of sugar valued at $30, and a case of shoes valued at $50; that Upshaw and Benjamin were employed by the…

<p>Appeal from Circuit Court, Morgan County ; Robert C. Brickell, Judge.</p> <p>Action by the City of Decatut against the Western Union Telegraph Company. From the judgment rendered, the Telegraph Company appeals.</p>

<p>Appeal from Circuit Court, Montgomery Connty; Leon McCord, Jndge.</p> <p>Milton Upshaw was convicted .of grand larceny, and he appeals.</p>

<p>1. Commerce <&wkey;69 — Interstate Commerce-Licenses — Taxation by Municipal Corporations.</p> <p>Code 1907, § 1339 (amended by Acts 1909, p. 121), providing that “the license herein.authorized as to persons, firms or corporations engaged in business in connection with interstate commerce shall be confined to that portion within the limits of the, state and where such persons, firms or corporations have an office or transact business in the city or town imposing the license,” is not objectionable as delegating authority to tax interstate commerce.</p> <p>2. Commerce <&wkey;69 — License Tax Affecting-Intrastate Business — Telegraph- Companies.</p> <p>Since ordinance in question expressly excepts from its operation both government and interstate business, the contention that it is void because it was ordained in pursuance of an abortive effort to delegate legislative authority, and that it taxed government and interstate business, cannot be sustained.</p> <p>3. Licenses <&wkey;7(2) — Subjects—Arbitrary Classification — Traction and Telegraph Companies.</p> <p>Contention that there was an arbitrary classification of the subjects of license as affecting appellant telegraph company, because traction companies were not included in the same class as telegraph companies, is without merit.</p> <p>4. Taxation &wkey;>42(l) — Subjects of Taxation-Classification.</p> <p>The only limit to the discretion of the taxing authorities in making classifications is that the classification must not be arbitrary, and a mere subterfuge to shield the one and burden the other.</p> <p>Bricken, J., dissenting.</p>

Petition by the State for writ of certiorari to the Court of Appeals to review its reversal of conviction of Jacob L. Addington for obtaining a mortgage by false pretenses (77 South. 993).

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>T. J. Houlton was convicted of violating an ordinance of the City of Montgomery, and appeals.</p>

<p>Appeal and Error <@=>753(2) — Matters Reviewable — Assignments op Error.</p> <p>Where there are no assignments of error in record, there are no questions presented for review, and judgment of lower court must be affirmed.</p>

<p>1. Witnesses <&wkey;349 — Cross-examination-Impeachment — Immaterial Pacts.</p> <p>In a criminal prosecution, the court did not err in granting motion of solicitor to exclude testimony of a witness being cross-examined by defendant, to effect that she had hit her husband in the head with a bucket, a matter not connected with the case.</p> <p>2. Criminal Law <&wkey;813 — Trial—Abstract Instructions.</p> <p>A requested instruction, “I charge that there is a difference between a prima facie case and a conclusive case,” was properly refused as being abstract.</p>

<p>Criminal Law <&wkey;1129(l) — Matters Reviewable — Assignments oe Error.</p> <p>Where there are no assignments of error, judgment of lower court will be affirmed.</p>

<p>Appeal from Circuit ■ Court, Talladega County; Marion Sims, Judge.</p> <p>Action by R. F. Freeman against the Southern Railway Company for damages for killing a cow. Judgment for plaintiff, and defendant appeals.</p> <p>The pleas were in effect, with the exception of the third plea, that the cow came upon the track suddenly, at or near the train that killed her, and in such close proximity to the train that it could not be stopped by the application of the means of stopping a train, all of which were at hand and skillfully applied by the engineer and the fireman, each of whom were keeping a lookout ahead and discovered the cow as soon as it was possible to discover her.</p> <p>Plea 3, as amended, set up the fact that at the time and place where the cow was killed it was unlawful for stock to run at large, the defendant's right of way at such place was unfenced, and that the cow was out of the custody and control of plaintiff, and was grazing on the right of way of defendant; that the train was fully equipped with all the best mechanical devices for sounding an alarm and for stopping the train, all of which was skillfully used by the defendant’s engineer immediately upon discovery of the cow on right of way.</p> <p>Charge 6, refused the defendant, is as follows:</p> <p>If there is a single man on this jury who is not reasonably satisfied that the defendant railroad company was guilty of negligence, then your verdict cannot be for the plaintiff.</p>

<p>Criminal Law &wkey;j1090(1) — Appeal—Bill ox Exceptions.</p> <p>On appeal upon record proper without a bill of exceptions where record shows regular proceedings free from error and nothing authorizing reversal, judgment will be affirmed.</p>

<p>Appeal from .Criminal Court, J efferson County; William B. Fort, Judge.</p>

<p>Appeal from Criminal Court, Jefferson County; Wm. E. Fort, Judge.</p>

<p>Appeal from Criminal Court, Jefferson County; H. P. Heflin, Judge. Mattie Bates was convicted of manslaughter, and she appeals.</p>

<p>Appeal from Criminal Court, Jefferson County; H. P. Heflin, Judge.</p>

<p>Appeal from Law and Equity Court, Morgan County; Thomas W. Wert, Judge. James Byars was convicted of crime, and appeals.</p>

<p>Appeal from Criminal Court, Jefferson County; Win. E, Fort, Judge.</p>

<p>Appeal from Shelby County Court; E. S. Dyman, Judge. Nathan Finley was convicted of petit larceny, and he appeals.</p>

<p>Appeal from City Court of Montgomery; Gas-ton Gunter, Judge. Jesse Ellington was convicted of burglary, and appeals.</p> <p>The defendant was indicted in the city court of Montgomery, on a charge of burglary, was convicted in the circuit court of Montgomery, and from the judgment of conviction he appeals. The 'only assignment of error is that the verdict of the jury was contrary to the evidence.</p>

<p>Appeal from Circuit Court, De Kalb County; W W. Haralson, Judge. Action between J. H. P. Long and A. P. Chitwood. From the judgment, Long appeals.</p>

<p>Appeal from Circuit Court, Coffee County; A. B. Foster, Judge. Joe Thames was convicted of assault to murder, and appeals.</p>

<p>Appeal from Circuit Court, Randolph County; Thomas W. Wert, Judge. Tom Willingham was convicted of violation of the prohibition law, and appeals.</p>

<p>Appeal from Cullman County Court; R. I. Burke, Judge.</p>

W. Pearson, Judge. Action by S. B. Adams on an attachment bond for wrongful levy of attachment writ against J. G. Avant and T. D. Avant. From judgment for plaintiff, defendants appeal.

<p>Appeal from Circuit Court, Covington County; A. B. Foster, Judge.</p>

<p>Appeal from Circuit Court, Jefferson County; Wm. E. Fort, Judge. Tom Myers was convicted of murder in the second degree, and he appeals.</p>

<p>Appeal from Clay County Court; E. J. Garrison, Judge. Action by R. G. Nickles and others against H. J. Carwile and another. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Covington County;’ A. B. Poster, Judge. Pate Neese was convicted of manslaughter, and he appeals.</p>

<p>Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge. Y. C. Woodruff, alias, etc., was convicted of burglary, and appeals.</p>

<p>Appeal from Circuit Court, Marengo County; R. I. Jones, Judge. Ed Johnson was convicted of the burglary of a storehouse, and appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; John H. Miller, Judge. Action by R. L. Fuqua against the Southern Railway Company. From judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; Wm. E. Fort, Judge. Daisy Johnson was convicted of violating the prohibition law, and she appeals.</p>

<p>Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge. Proceeding by the State against James Woolum. From an adverse judgment, defendant appeals.</p>

<p>Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.</p>

<p>Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge. Prank Parley was convicted of violating the prohibition law, and he appeals.</p>

<p>Appeal from Circuit Court, Elmore County; Leon Mo-Cord, Judge. Jett Smith was convicted of assault with a weapon, and. he appeals.</p>