Volume 160 — Alabama Reports

<p>Appeal from Tallapoosa Circuit Court.</p> <p>Heard before Hon. S. L. Brewer.</p> <p>John Green ivas convincted of murder and he appeals.</p> <p>John Price, a witness testifying for the state said that he saw John Green at a certain place on the day of the killing, and that John Green made certain statements to him relative thereto and that neither witness nor anyone else made any threats to Green or offered him any reward or made him any promise to indnce him to say anything or make any statement.</p> <p>Confessions are presumed to be involuntary and the contrary must be clearly shown. — Young v. The State, 68 Ala. 569; Beck-ham v. The State, 100 Ala. 16; Reecl v. The State, 69 Ala. 255; Daniels v. The State, 48 South. 747. The court’s oral charge was- error. — Rollins v. The -State, 136 Ala. 126; Leech v. Waugh, 24 111. 228. Counsel discuss assignments of error relative to evidence, but without citation of authority.</p> <p>for the State. The service of the indictment will be presumed where the record fails to show to the contrary and there is no objection by the defendant. — Spicer v. The State, 69 Ala. 159; Lomineck v. The State, 39 South. 677; Sec. 7840, Code 1907.</p>

<p> Murder. </p> <p>1. Evidence; Confessions; Voluntary. — The fact that there was a crowd around, the guardhouse or the jail when the witness aproached, some of whom were talking, did not tend to controvert the statement of the witness that there were no circumstances present which would render the statement of the defendant not voluntary, and such witness was properly permitted to testify as to the statements made by the defendant.</p> <p>2. Same; Conclusion. — A question as to whether or not the deceased attempted to carry an alleged threat into execution, called for a conclusion, and was properly excluded.</p> <p>3. Witnesses; Examination; Cross Examination of Accusea.— Where a defendant takes the stand as a witness he is subject to cross examination just as other witnesses.</p> <p>4. Same; Impeachment; Contradictory Statements. — Where accused as witness denied making certain statements, contradictory statements made by accused as to the killing were properly admitted, the proper predicate having been laid.</p>

Heard before Hon. T. L. Sowell. Prom a conviction for murder Jim Howard appeals. The record fails to show that the defendant was given a special venire.- — ■ Burton v. iState, 115 Ala. 1.

Heard before I-Icn. D. W. Speaice. Wess Montgomery was convicted of murder, and he appeals. The facts are sufficiently stated in the opinion of the court.

<p> Murder. </p> <p>1. Witnesses; Coroborratmg Testimony. — A witness who has testified for the state, may not be recalled and in rebuttal testify as to whether she made the same statement at the preliminary hearing as she did on the trial, as the only purpose of such an inquiry was to coroborate the witness in her testimony in a later trial, and this is true notwithstanding the witnesses for the defendant testified to the circumstances of the killing contrary to the testimony of the state’s witness, but none of whose testimony related to the testimony of the state’s witness on the preliminary trial.</p> <p>2. Charge of Court; Credibility of Witness. — A charge asserting that if the jury find that the witness D. had made contradictory statements as to material facts, the jury may consider that fact in determining what credence it will give to the testimony of the witness, is proper and its refusal error.</p> <p>3. Same; Inapplicability to Evidence. — Where the evidence tended to show that when the defendant entered the house of D. with a pistol in her hand that D. grabbed the defendant just before the killing, and in the melee, the weapon was discharged, after it had been secured by D. a charge hypothesized on the facts that D. rushed upon the defendant, was inapplicable to the evidence and properly refused.</p> <p>4. Same; Unintelligible Instructions. — A charge hypothesized upon the killing of the defendant is properly refused as unintelligible.</p>

<p>Appeal from Clake Circuit Court.</p> <p>Heard before Hou. John T. Lackland.</p> <p>Richard Ott was convicted of murder in the second degree, and he appeals.</p> <p>The defendant is charged with the crime of killing Camilla Ott by cutting her throat with a razor, and in the second count by throwing her into a well. The defendant attempted to show that Josh Dickinson and Will Dickinson were in some way connected with the crime, and that since his conviction Will Dickinson had left the state. The other facts are sufficiently stated in the opinion.</p> <p>The court erred in permitting the state to challenge for cause, the juror Steele. —Sec. 5018, Code 1896; 19 South. 410; Salm v. The State, 89 Ala. 56; Moore v. The State, 44 Ala. 15; Pick-ens v. The State, 115 Ala. 42; Ex parte Aeree, 63 Ala. 234. The court erred in permitting the witness to say that the cave in the well looked like someone had stamped his foot in it. — Bennett v. The State, 52 Ala. 370; May-berry v. The State, 18 South. 219. Charges 9, 10, 11 and 12 should have been given. — Clifton v. The State, 73 Ala. 473. The court invaded the province of the jury when it charged that there was no evidence to show that certain others had any connection with the killing. — Wright v. State, in MSS.</p> <p>for the State. There was no error committed as to the juror. The witness was properly permitted to testify that the cave in the well looked like someone had stamped their feet in it. — Wathins v. The State, 89 Ala. 82; Smith v. The State, 127 Ala. 22. The court did not err in refusing to permit evidence of flight as to a third person.— Owensby v. The State, 82 Ala. 63; Kemp v. The State, 89 Ala. 55. Charge 1 was properly refused. — Foioler v. The State, 100 Ala. 96. Charge 4 was properly refused. G-oodlett v. The State, 136 Ala, 39. Charge 7 was .properly refused. — Gipson v. The State, 91 Ala. 64; Fonville v. The State, 91 Ala. 39. Charges 9, 10, 11 and 12 were properly refused. — Stone 'V. The State, 105 Ala. 60; Goley v. The State, 87 Ala. 68; Salm v. The State, 89 Ala. 56.</p>

Heard before Hon. C. P. Almon. Dave Seawright was convicted of murder in the second degree, and appeals. The following charges were refused to ■ the defendant: “(1) Unless the jury believed from the evidence that the defendant is guilty, they should fivd him not guilty. (2) If you are satisfied from all the evidence that Prank Turner (or Turnley) testified falsely to any material fact, then you can, in your discretion, disregard his whole testimony.

Heard before Hob. W. W. Haralson. Homer McCain was convicted of murder in the second degree, .and he appeals. The questions noted in the first paragraph of the opinion were questions asked by the solicitor on cross-examination relative to the conviction of the witnesses, or of their taking sides in the difficulties, and in each instance were answered in the negative.

<p>Appeal from Tallapoosa Circuit Court.</p> <p>Heard before Hon. S. L. Brewer.</p> <p>From a conviction of jnanslaughter in the 1st degree J.' Fletcher Turner appeals.</p> <p>Under the facts in this case evidence of prior difficulties, threats, ill feeling and bad character of deceased are admissible for the purpose of explaining and sheding light on the conduct of the parties at the time of the homicide. — Rutledge v. The State, 88 Ala. 85; Gunteiv. The State, 111 Ala. 28; Burton v. The State, 115 Ala. 11 ;Grafford v. The State, 122 Ala. 54. It is competent to show previous avoidance of quarrels and conflicts on the part of defendant for the purpose of showing that he is not the aggressor. — 6 Ency of Evi. 764; 49 la. 328; 45 S. W. 581. The defendant was entitled to have the jury instructed after their return and request for other instructions. — Harper v. The State, 109 Ala. 66. It is the duty of the court to charge the law on each and every phase of the evidence. — Woodbury v. The State, 69 Ala. 242; Smith v. The State, 68 Ala. 424. Threat made by deceased against the life of defendant and the fact that deceased was in the habit of carrying a pistol, which was known to the defendant, are admissible in evidence.— Wiley v. The Slate, 99 Ala. 136; Haughter v. The State, 116 Ala. 463; Roberts v. The State, 68 Ala. 156. The court erred in refusing the charge that unless each juror is convinced of the defendant’s guilt beyond a reason-' able doubt, the jury should not convict. — Garter v. The State, 103 Ala: 93; Hale v. The State, 122 Ala. 85; Fletcher v. The State, 132 Ala. 10; Leonard v. The State, 150 Ala. 89.</p>

<p>Appeal from Talladega City Court.</p> <p>Heard before Hon. G. K. Miller.</p> <p>Frank Kelly was convicted of murder in tbe first degree, and appeals.</p> <p>Tbe facts are stated in tbe opinion of tbe court. Tbe following charges were refused to tbe defendant: (6) “Before tbe jury can convict a defendant, they must be satisfied to a moral certainty, not only that tbe proof is consistent with tbe defendant’s guilt, but that it is wholly inconsistent with every other rational conclusion; and unless tbe jury are so convinced by .the evidence of tbe defendant’s guilt that they would each venture to act upon that decision in matters of the highest concern and importance to bis own interest, then they must find tbe defendant not guilty.” (8) “If you believe from tbe evidence that Frank Kelly bad submitted to arrest on tbe night when Thompson was killed, and took no part in tbe conspiracy, if a conspiracy existed, and did not fire tbe shot which killed Thompson then you must find .the defendant not guilty.”</p> <p>Registers in Chancery has authority to administer oaths and take affidavits. — Parag. 12, sec. 3074; Civil Code. Tbe application for change of venue should have been granted. — Sec. 7851, Code 1896; Taylor v. The State, 48 Ala. 180; Woolf v. The State, 89 Ala. 356; Shackelford v. The State, 79 Ala. 26; Byers v. The State, 105 Ala. 31; Thompson v. The State, 117 Ala. 67; Neville v. The State, 118 Ala. 657; Williams v. The State, 147 Ala. 22; 12 Cyc. 247. The motion for the continuance should have been granted. — White v. The State, 86 Ala. 69; Walker v. The State, 117 Ala. 85; Huskey v. The State, 129 Ala. 99; 12 Cyc. 543; Sec. 6, Const. 1901. The court erred in refusing charges 6 and 8. — Bartlett v. The State, 107 Ala. 108; Bouhlin’s Case, 102 Ala. 78; Brown’s Case, 108 Ala. 18; Picken’s Case, 115 Ala. 42; Bones’ Case, 117 Ala. 138. As to- charge 8 see also. — Green r. The State, 97 Ala. 59. The court erred in its oral charge. — State v. Murphy, 6 Ala. 765; Watkins p. The State, 89 Ala. 115; Turner v. The State, 97 Ala. 57; 8 Cyc. 62Ó.</p> <p>for the State. The,application for change of venue was subject to the objection that .it came too late. — Sec. 5851, Code 1896; Byers v. The State, 105 Ala. 31. The court was right in denying the application as it was presented. — Byers v. The State, 105 Ala. 31; Gilmore v. The State, 126 Ala. 35. The matter of continuance cannot be reviewed.— Terry v. The State, 120 Ala. 286. It was immaterial when and where the witness got the pistol. — Ross p. The State, 139 Ala. 144. A defendant may be impeached by proof of contradictory statements.- — Smith v. The State, 137 Ala. 22. The court’s oral charge was correct. — - Williams v. The State, 81 Ala. 1; Charley v. The State, 94 Ala. 19; Evans v. The State, 109 Ala. 11; Martin v. The State, 136 Ala. 32. Charge 6 was an argument.— Sanders v. The State, 134 Ala. 74.</p>

Heard before Hon. O. P. Almon. Jim Turner was convicted of murder in the second degree, and appeals. The following charges were refused to the defendant: “(3) Gentlemen of the jury, I charge you that there is no evidence of a conspiracy on the part of defendant and Lottie Turner and Fancy Anderson to kill Enos Johnson.

Heard before Hon. W. J. Pearce. Jay C. Knight was convicted of murder in the second degree, and he appeals. The question propounded to the witness Adair was as follows: “ Do you remember hearing Jay, some two or three days before the difficulty over here at Canvisle’s .store, or in Alexander’s store, make any threat?” and the answer: “I heard him make some threats, but don’t remember about the time.

Heard before Hon. G. K. Miller. Charles E. Brewer was convicted of murder and be appeals. Tbe oral charge of tbe court was invasive of tbe province of tbe jury.- — •Young v. The State, 125 G-a. 584; Brown v. The State, 72 Miss. 997; Allison v. ü. S., 160 U. S. 204; Hickory v. U. S., 169 U. S. 409. The court erred in refusing the charges as to good character. — Edgington v. Administrator, 164 ü. S. 561; Shropshire v. The State, 81 Ga. 581.

Heard before Hon. C. P. Almon. Fancy Anderson was convicted of murder, and he appeals. The following charges were refused to the defendant: “(2) If the jury believe from the evidence beyond a. reasonable doubt that defendant unlawfully killed Enos Johnson with malice, but without deliberation or premeditation, they will find him guilty of murder in the second degree.

Heard before Hon. W. W. Haralson. John Bollings was convicted of manslaughter in the first degree, and appeals. The court erred in allowing the state to challenge the juror Chandler for cause. — Brown’s Base, 52 Ala. 845; Martin v. The State, 144 Ala. 8. The fact that the defendant had a pistol concealed about his person is immaterial, as it was not near enough to the difficulty. — Morris v. The State, 39 S'outh. 608.

<p>Appeal from Tallapoosa Circuit Court.</p> <p>Heard before Hon. S. L. Beewee.</p> <p>Ess Harrell was convicted of murder, and he appeals.</p> <p>Testifying for himself, the defendant said that he and the deceased went on a visit that night, and about 11 o’clock they left the house where they were visiting and started to return home; that the deceased had brought his gun with him, but, not wishing to carry it to the house, stood it up in the corner of a fence near by; that defendant was ahead of the deceased, and when he reached the place where the gun was he picked it up: and, when deceased came up, deceased caught hold of the barrel of the gun while defendant held to the stock, and while in a friendly scuffle over the gun it was accidentally discharged, the load taking effect in deceased’s bowels. Defendant further testified that he did not have hold of the trigger or the hammer, but only the stock, and did not know how the gun was fired. The charge requested by the defendant is as follews: “Unless the jury believe beyond a reasonable doubt from the evidence in this case that the defendant intentionally fired the gun that killed George Whatley, they will return a verdict of not guilty.”</p> <p>The record does not show the organization of the grand jury that returned the indictment. — Sec. 7282, Code 1907; Horton v. The State, 47 Ala. 58; Stevens v. The State, 47 Ala. 707; Parmer v. The State, 41 Ala. 417. The indictment not having been returned by a legal grand jury, the same is void and its validity can be here raised for the first time. — Sanders v. The State, 55 Ala. 183; Findley v. The State, 61 Ala. 201; Berry v. The State, 63 Ala. 126; Hall v. The State, 134 Ala. 110; Trammell v. The State, 151 Ala. 18. The court erred in refusing the charge asked.— Johnson v. The State, 94. Ala. 35.</p> <p>for the State. No question was raised as to. the organization of the grand jury, and hence, it need not be set out in the transcript. — Sec. 6256, Oodé 1907; Hatch’s Case, 144 Ala. 50. The court did not .err in refusing the charge requested. — Sanders v._ The State, 105 Alá. 4; Bouldin v‘. The State ', Í02 Ala. 87; Tidwell v. The State, 94 Ala. 33‘.</p>

<p>Appeal from Baldwin Circuit Court.</p> <p>Heard before Hon. Samuel B. Browne.</p> <p>From a conviction of murder, Thomas Stone appeal».</p> <p>for the State. Demurrers were properly sustained to the replication. — Lyman v. The State, 47 Ala. 86; Lewis v. The State, 121 Ala. 1. The defendant was estopped from pleading former jeopardy. — Lewis v. The State, supra; Morrissette v. The State, 77 Ala. 71; State v. McFarland, 121 Ala. 48.</p>

Heard before Hon. William Jackson. A Jack Caldwell was convicted of assault and battery, with a weapon, and he appeals.

Heard before Hon. S. L. Brewer. From a conviction for assault with intent to murder Tom Storey appeals. The guilt of other parties may be shown if asked for by direct question.— Prince v. The State, 100 Ala. 144.

Heard before Hon. D. W. Speake. George Newman and another were convicted of assault and battery, and appeal.

<p> Embezzlement. </p> <p>1. Embezzlement; Indictment; Sufficiency. — An indictment charging the embezzlement of funds of a corporation need not allege where the incorporation was incorporated.</p> <p>2. Appeal and Error; Harmless Error; Admission of Evidence.— Where the defendant admitted getting a certain amount as agent for a certain company, which he had not accounted for and which he claimed was lost, and the jury found the amount embezzled to be no more than the amount admitted, if there wa? error in admitting evidence to establish the amount of funds received by defendant as agent for such company, it was harmless.</p> <p>3. Embezzlement; Evidence; Other Ofienses. — Where the charge was an embezzlement of funds belonging to defendant’s principal, the admission of evidence that the defendant drew funds on check that he had signed without authority was improperly admitted as it did not tend to prove embezzlement but related to another and separate offense.</p> <p>4. Same; Instructions. — A charge asserting that the cashing of a check by defendant that was payable to him would not constitute an embezzlement of the check, is a proper charge, since the charge would not exonerate defendant from embezzling the proceeds of the check but simply declared that the cashing of the check did not constitute embezzlement.</p> <p>5. Ohdrge of Court; Abstract Instructions; Refusal to Testify. — ■ A charge asserting that the defendant has a right to refuse to testi-. fy about any matters which would aid the state in its efforts to make out a case against defendant under another indictment and his refusal to so testify cannot be construed as a circumstance against him in this case, is abstract where it appeared that while the defendant objected to the question asked, he did not refuse to answer, but answered the question after objection was overruled.</p>

Heard before Hon. Samuel B. Browne. Joe D. Patton was convicted of the crime of carrying a pistol concealed, and he appeals. The act of the Legislature, 1st special session- 1907, for Washington county, is violative of section 45' and section 106, and section 76 of the Constitution of 1901. — Balian tyne v. Wicker sham, 75 Ala. 533.

Heard before Hon. T. L. Sowell. Bill McMillan was convicted of trespassing upon land and cutting and removing timber therefrom, and he appeals.

Heard before Hon. T. L. Sowell. From a conviction of permitting a minor to play upon a pool or billiard table, operated for the patronage of the public at large, Sam Bailey appeals. The court erred in allowing the witness Jones to testify that the defendant operated a pool table. — Ferguson v. The State, 134 Ala. 70; Holmes v. The State, 136 Ala. 80; Hill v. The State, 137 Ala. 71; Jackson v .The State, 137 Ala. 80; Morris v. The State, 84 Ala. 57.

<p> Selling Intoooieatmg Liquors. </p> <p>1. Criminal Law; Change of Prosecution, on Appeal. — Where oue is prosecuted for violating a city ordinance and appeals to the circuit court from a conviction therefor in the mayor’s court, there is no authority of law for filing an amended complaint in the circuit court in the name, of the state'for the violation of a state statute.</p> <p>2. Constitutional Law; Due Process; Indictment. — A defendant against his objection cannot be tried in the circuit court without first being indicted unless he has taken an appeal from an inferior state court from a conviction therein to the circuit court. (Sec. 6, Const. 1909.)</p>

Heard before Hon. A. P. Longshore. Habeas Corpus by Robert B. Stracener for his discharge from custody under a mittimus issued by a justice of the peace on a preliminary hearing. From an order discharging the petitioner, the state appeals. for the State. — The petition for habeas corpus should have been denied. — State v. Durham, 139 Ala. 661; Burr, et al. v. Foster, 132 Ala. 41; Em parte McG-loum, 75 Ala. 39; Em parte Robinson, 86 Ala. 624; Smith v. The State, 138 Ala. 111.

I-Ieard before Hon. Tanckbd Betts. Jack Troup, alias Ben Harris, ivas convicted of obtaining money by false pretenses, and he appeals. The facts sufficiently appear in the opinion of the court. The following charges were refused to the defendant: “(1) I charge you, gentlemen of the jury, that there is no evidence in this case that any witness who has testified is of good character.

Heard before Hon. Saffold Berney. Petition by the state on the relation of Albert P. Miller, for an order restraining F. W. Hermann, a justice of the peace, from issuing warrants of arrest. The petition was dismissed and petitioner appeals. Prohibition is the remedy in this case. — Ex parte Rucker, 108 Ala. 249. The main question in this case is whether or not criminal jurisdiction had been restored to justices of the peace in Mobile county.

<p> Mandamus. </p> <p>Oou/rts; Terms and Time of Bolding; Statutes Applicable. — In determining the time for holding the courts in the 15th Judicial Circuit, it is not necessary to pass upon the validity of the Act of August 9, 1907, (Acts 1907, p. 780.) amending the Act of March 6, 1907, which has been declared unconstitutional, since the time for holding the court is placed by section 3245, Code 1907, on the same dates as fixed by said Act, and this section is the law which must be observed as the time for holding such court, and not that fixed by the Act of March 2, 1907, or March 6, 1907.</p>

<p>Appeal from Selma City Court.</p> <p>Heard- before Hon. J. W. Mabry.</p> <p>Mandamus by the state on tlie relation of Arthur Coliman against P. H. Pitts, probate judge, to compel him as such probate judge to issue a license to relator to sell liquor. From an order denying the writ, relator appeals.</p> <p>The enactment is local, and in construing it, it cannot be looked to alone, but must be read in connectios with other acts of the same session in pari materia. Special acts passed contemporaneously or nearly so with general acts must be considered as exceptions to the more general expression of legislative Avill. — Brinson v. The State, 89 Ala. 105; Redden v. Clark, 20 Utah 382; 26 A. & E. Ency of Law, 744. The act is unconstitutional. — Coleman v. Toion of Eutaw. — 47 South. 703; Perry County v. Railroad, 58 Ala. 556. It violates section 64 of the Constitution. — State v. Rodgers, 107 Ala. 444; Sutherland Statutory Construction, 79; Montgomery B. Works v. Gaston, 126 Ala.; Cohn v. Kingston, 49 Pac. 995; 110 Appellate Division; 184 N. Y. 431; Bd. of Rev. v. Crowe, 37 South. 469; State, ex rel. Broion v. Porter, 145 Ala. 41. When the senate and house voted upon the amendment jointly they violated section 63 and 64. — Cooley’s Const. Dim. (7th Ed.) 201. It is violative of section 62. — Walker v. City Council, 139 Ala. 468. The enactment is an unwarranted and arbitrary interference with constitutional rights. — 184 U. S. 540; 195 U. S. 169; 123 U. S. 205; 113 U. S. 923. Section 11 renders the entire act invalid. — 26 A. & E. Ency of Law, 647; Reese v. The State, 73 Ala. 18; Carlisle v. Goodwyn, 68 Ala. 137. The concurrent operation of the local and general laws as provided by said section is impossible. ■ — Crider v. Talley, 77 Ala. 422; Arndt v. City of Cull-man, 132 Ala. 540; Miles v. The State, 40 Ala. 39; Handey v. The State, 121 Ala. 13; State v. Whitworth, 8 Port. 434; Magruder v. The State, 40 Ala. 347; Caldwell v. The State, 55 Ala. 133; Scmders v. The State, 58 Ala. 371; 44 S. W. 486; 96 Ala. 1; 95 Mass. 534; 100 Ala. 32; 44 N. W. 841. The law is local and not general. — State ex rel. v. Thompson, 142 Ala. 98. It violates the 14th amendment of the Federal Constitution. — 108 Tenn. 92. It is a denial of the equal protection of the law. — 159 Ü. S. 73; 139 U. S. 462; 2 L. R. A. (N. S.) 813; 118 U. S. 356; 92 Mo. 41.</p>

Heard before Hon. C. C. Nesmith. Mandamus by the Birmingham Water Works Company against the Board of Revenue of Jefferson county to require the board of revenue to instruct the judge of probate thereof to certify to tbe auditor that tbe rein-tor corporation bad paid to tbe judge of probate through mistake, a license tax in tbe sum named. From a judgment awarding tbe writ tbe respondent appeals. Tbe demurrers to tbe petition should have been sustained. — 13 A. & E. Ency.

Heard before Hon. H. A. Sharpe. Proceedings by Frank Gardina by madamus to compel the board of registrars of Jefferson county to register him so as to be qualified to vote, upon his filing a declaration of his intention to become a citizen. From a judgment denying the writ, petitioner appeals.

<p>Appeal from Cullman Circuit Court.</p> <p>Heard before Hon. D. W. Speak®.</p> <p>Mandamus by the state of Alabama on tbe relation of D. C. Almon, solicitor for the 8th judicial circuit, and on the relation of the county solicitor of Cullman county, to require Robert I. Burke as judge of the county court of Cullman county, to restore certain criminal cases to-his docket. From a judgment dismissing the petition, relators appeal.</p> <p>for the state. — The term, nol prosse, is defined in the following authorities.- — -Black’s Law Diet. p. 818; State v. Maine Gent. Ry. Go., 77 Me. 244; 98 Mo. 126;, 45 N. J. L. 154; 31 Tex. 261; 49 N. Y. 141; 35 L. R. A. 701; Wooster v. The State, 55 Ala. 220; Galpin-v. Pace,. 84 U. S. 350. Mandamus will lie to correct erroneous rulings of the court where injury will result and there exists no right of appeal, or other adequate means of redress. — 142 Ala. 88; 188 Ala. 214; 128 Ala. 99; 114 Ala. 659; 103 Ala. 415; lb. 104; Id. 154; 92 Ala. 120; 84 Ala. 154; 75 Ala. 543. Mandamus will issue from the circuit court to a county court. — 140 Ala. 460; 117 Ala. 548; 86 Ala. 585; 7 Port. 47. The act complained was coram non judice.- — 9 Cyc. 976, and in that- event, it may be controlled by a mandamus. — See authorities supra. Counsel discuss the relative rights of the circuit and county courts, and insist that the circuit court may issue mandamus to the county court judge.</p> <p>—The respondent had a right to file his plea in abatement or move t.o quash the writ or dismiss the petition before making his return. — Sec. 4864, Code 1907; 13 Ency P. & P. 697; 704-709; 710. One court will not interfere with another court of equal concurrent jurisdiction.- — Gay v. Briarfield Co., 94 Ala. 308; Gould v. Hayes, 19 Ala. 437; Turrentine v. Blacktoood, 28 South. 95; Shields v. The State, ex rel., 86 Ala. 586. The act of the county court in dismissing or entering a nol prosse was a judicial act and cannot be controlled by mandamus, and the court having acted, its decision cannot be reviewed by mandamus. — 103 U. S. 238; 94 U. S. 418; 14 Wall. 152; 114 U. S. 174; 116 U. S. 401; Ex parte Brown; Ex parte Merritt, 142 Ala. 116; Taylor v. Cobb, 100 Ala. 606; Ex parte Hayes, 92 Ala. 120; Ex parte Cresswell, 60 Ala. 378; Ex parte Cochran, 74 Ala. 50. The solicitor cannot join in such petition. The attorney general is the proper party. — Ex pm-te Stevenson, 113 Ala. 85; Ex parte Mullett, 71 Ala. 371; Ex parte State of Alabama, 71 Ala. 362; 124 Ala. 97.</p>

<p> Quo WwrantO'. </p> <p>1. Statutes; Repeal; Implication. — The doctrine of repeal by implication is not favored by the courts and will be applied only where there is such repugnancy between the two statutes that they cannot consistently stand together.</p> <p>2. Same; Special 6y General Act. — Mere inconsistency in the provision of a special former statute and a later general one is not enough to authorize an implication that the older special statute was repealed by the later general one; hence, general Acts 1903, p. 289, as amended by General Acts 1907, p. 482, section 6, did not repeal by implication the special act (Local Acts 1896-7, p. 514) creating a separate school district, nor was such special act affected by the Municipal Code Act, (General Laws 1907, p. 378), since by said special act the special school district as a town was taken out of the general class of towns affected by the Municipal Code Act in section 175.</p> <p>3. Schools and School Districts; Officers; Tenure. — Under Local Acts (1896-7, p. 514) the school board have a life tenure of office, conditioned only on their residence within the district.</p> <p>(McClellan, Jr., dissenting.)</p>

Heard before Hon. A. O. Lane. Quo warranto by the state on the relation of C. W. McKinley and others, against H. L. Martin, to test respondent’s right to the office of alderman in the city of Birmingham. Prom an order denying the writ relators appeal.

Heard before Hon. J. J. Ray. Quo warranto by the state of Alabama, on the relation of D. O. Almon, Solicitor, against James S. Fowler, Clerk of the Circuit Court. Judgment quashing the proceedings, and relator appeals. The case made by the petition is: That Fowler was elected to the office of clerk of the circuit court of Morgan county at the November election, 1904, and qualified as such.

<p> Quo Waoranto. </p> <p>1. Municipal Corporations; Annexation of Territory; Elections.— Where an election is held in territory under section 1073, Code 1907, to determine whether the same shall be annexed to a municipality, and results in the defeat of the proposed annexation, a subsequent election within six months threafter submitting the proposition of annexation of such territory with other territory to another municipality, is void, as in violation of section 1125, Code 1907.</p> <p>2. Same. — Where territory belonging to neither corporation intervenes between the corporations, one municipality cannot be annexed to another under section 1126, Code 1907.</p> <p>■ 3. Statute; Construction; Conflicts.■ — The court in construing the statutes must avoid, if possible, such a construction as will place statutes in conflict with one another.</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. A. O. Lane.</p> <p>Qluo warranto by the state on the relation of J. N. Sigsby and others against the city of Birmingham, and others, to test the validity of an election held for the purpose of annexing territory to said city. Prom a judgment sustaining demurrer to the petition and dismissing it, relators appeal.</p> <p>Counsel discuss assignments of error hut without citation of authority.</p> <p>Where there is only a threatened exercise of a franchise the proceedings instituted here will not lie. — State ex rel. Johnson v. Ensley. 142 Ala. 665.</p>

Petition to Set Aside a Decree for Sale of Lands. Appeal from Mobile Probate Court. Heard before Hon. Price Williams, Jr. Petition by Susannah J. Lightner and others to set aside a decree of sale made in the probate court three years before the filing of a petition but previous to the report of sale and confirmation. From an order setting the decree of sale aside, the respondents named in the petition appeal.

Heard before Hon. Charles A. Senn. Henry Fabian-, sued'Jacob Traub and recovered, a judgment-by. default against bim. Tra,ub entered a motion for new trial based on tbe grounds set out in the opinion. From an order declining to set aside the judgment and granting the new trial, Traub appeals.

<p>Appeal from Marengo Circuit Court.</p> <p>Heard before Hon. John T. Lackland.</p> <p>Action by E. Strickland & Co-., against Zenus Forney, in which, plaintiffs levied an execution on defendant’s property, to which Lesesne & Ladd filed a claim. From a judgment for the claimants, plaintiffs appeal.</p> <p>E. Strickland & Co. had judgment in the circuit court of Marengo county against Zenus Forney in the sum of $348, on which an execution issued and was levied upon certain live stock as the property of said defendant. Lesesne & Ladd filed a claim thereto under the statute, and on issue made up between them by the court the plaintiff introduced evidence of a judgment, execution thereon, and its levy upon the property in the possessioD of the-defendant.' The claimants introduced J. E. Alston, whose testimony showed that he was the landlord of Zenus Forney, and that Zenus Forney executed to him a note for the rent'for the current year 1907, in the sum of $579.40, which note was introduced in evidence, as also a letter, written September 5, 1907, to Messrs Lesesne & Ladd, at Mobile, Ala., which letter was in words and figures, as follows: “I write you to know about Zenus Forney’s rent. Most of the time he just gives me a check for his rent when it is due. I thought possibly this would suit you, too. His note is for $579.40, which will be due about the 1st of October, and, of course, if this suits you, he can start to shipping to you as soon as he gets it out; and, as I don’t care to handle any cotton, all the notes he has turned over to me, I will turn to you through my banker, and I will see they turn their cotton over to you on Zenus’ account, and I want you to do the 'best yon can for him in price,” etc. Claimants also offered a sight draft, drawn by the defendant, Zenus Forney, upon them, payable to the order of J .E. Alston, for the sum of $579.40, which was paid by them. The plaintiffs then offered in evidence the fact that this note was indorsed to one W. J. Smiley by Alston as collateral security for an account to be made and that was made between Alston and Smiley, and that the note had remained with Smiley from the time of its indorsement as collateral security to Smiley until the day before the trial, when Alston had procured it from Smiley. It was shown that Forney had not paid the rent notes, except by the drafts given on the claimants, and had not repaid claimants the amount of said draft. At the conclusion of the testimony the trial court gave the affirmative charge for claimant as to the two mules, Molly and Beck, which were mentioned and included, in the rent notes.</p> <p>The plaintiffs made out a prima facie case. — Shalum v. IlerJh&rg, 73 Ala. 62; Jackson v. BaAn, 74 Ala. 330; Ross v. Lawson, 105 Ala. 351; Ross v. Riñgman, 40 South. 81. This shifted the burden to the claimants. — -Jackson v. BaAn, sitara; Ivey v. Ooston, 134 Ala. 259; Bennett v. McKee, 144 Ala. 601; Sec. 6093 and 6043, Code 1907. The affidavit is fatally defective; the proceedings constitute a suit (McAdams v. Beard, 34 Ala. 478) the names of the partners composing the firm are not set out (Simmons v. Titche, 102 Ala. 317) and the character of the claim is not fully set forth. — Section 4734, Code 1907; King v. Henderson, 142 Ala. 460. The claim suit should have been instituted by Smiley and not by the claimants.— Cecil & Co. v. Folmar, 103 Ala. 491; Secs. 6039 and 4737, Code 1907.</p> <p>Counsel insist that the court properly gave the affirmative charge since the landlord had a lien for the property advanced as well as the rent. — Sec. 4734, Code 1907; Holliday v. Rutledge, 39 South. 613. All that was necessary was to show the amount due and that it was unpaid. — King v. Henderson, 142 Ala. 460. The claimant succeeded to the right of the landlord and was entitled to collect. — Carter v. Fields, 130 Ala. 435. The claim of the landlord may be assigned, and this may be done by parol. — Wells v. Cody, 112 Ala, 278; Fairbcmlcs v. Sargeant, 6 L. R. A. 475; Sec. 4737, Code 1907; 1 A. & E. Ency. of Law, 34; Bennett v. McKee, 144 Ala. 601. If any amount remained due the claimant he is entitled to recover. — Holliday v. Rutledge, 39 South. 613; Smith v. Huddleston, 103-Ala. 223.</p>

<p> Garnishment. </p> <p>1. Garnishment; Property Subjeet; Money Due on Contract.— Money in the hands of a third person due defendant in garnishment on a contract made with him is subject to attachment and garnishment under section 2940, Code 1907; the same being a demand upon which defendant could maintain debt or indebitatus assumpsit.</p> <p>2. Same; Situs of Debt. — The courts of the state of the debtor, by reason of its control over its resident citizens, may under a statute authorizing it subject the debt to seizure within its borders, although ordinarily the situs of a debt is constructively with the creditor to whom it belongs.</p> <p>3. Same; Debt Due Non Resident. — Money due a non resident on a contract made in this state with a resident corporation can be attached and garnished in the hands of such corporation, under sections 525, Code 1896, and 2940, Code 1907.</p> <p>4. Same; Proceedings Against Non Resident. — 'Where the proceeding was against a nonresident and legal notice by publication of the attachment and garnishment was given, but the defendant failed to appear generally, or to enter such appearance in defense of the suit, no personal judgment could be rendered against such non resident ; yet, under such conditions, where the garnishee answered in; debted tó the defendant, it became the duty of the court to ascertain and declare the amount of the plaintiff’s debt sought to be enforced by this action and to enter judgment condemning the money ■due the defendant from the garnishee and in the garnishee’s hands, to the satisfaction of the debt.</p>

Heard before Hon. John W. Inzer. Certiorari by N. C. Cushman against the Court of County Commissioners of Blount County. Prom a judgment quashing the writ, petitioner appeals. The petition leading up to the election sought to be quashed and annulled by the certiorari, is as follows: “State of Alabama, Blount County. Commissioner’s Court.

Heard before Hon. I. B. Slaughter. B. B. Finklea ' was declared elected to the office of Tax Collector of Monroe county, whereupon, J. P. Farish, filed a contest which was sustained, and from this judgment, the contestee appeals. The statutory system of contesting elections in this state is the only mode prescribed and any material departure therefrom is unauthorized. — Black v. Pate, 130 Ala. 514; Wither son v. Duncan, 114 Ala.. 659; Hilliard v. Broum, 97 Ala. 92.

<p> Settlement of Estate. </p> <p>Exemptions; Property Exempt; Life Insurance. — The Act of February 18, 1887, (Acts 1896-7, p. 1393), though an act to regulate the business of insurance, was not intended by section 32 thereof merely to protect insurance companies against harrassing legislation, but was intended to protect the insured’s estate as well as his wife and children, and under it, the proceeds of the policy of insurance are not liable for the debts of insured’s estate. Courts are not permitted to pass on the wisdom of the policy of the legislature in passing statutes.</p>

Heard before Hon. J. B. Gaston. Petition by Dorcas Singo against Judy McGehee to have certain real estate set apart as exempt. From decree setting aside a former decree for petitioner, she appeals. On the 2d day of January, 1906, Dorcas Singo filed in the office of the judge of probate of Montgomery county a petition asking that a homestead be set aside to her out of certain property owned by her alleged husband, George Singo.

Heard before 1-Ion. John Pelham. Proceedings by the state to assess back taxes against certain lands and the improvements thereon alleged to belong to the Anniston City Land Company, and alleged by the Land Company to have been used exclusively for scliool purposes. From a judgment subjecting the land to the back taxation the Land Company appeals.

Heard before Hon. A. C. Howze. Dan Ryan was convicted of illegally selling intoxicating liquors, and appeals.

<p>Appeal from St. Clair Probate Court.</p> <p>Heard before Hon. W. S. Forman.</p> <p>C. D. Alverson was elected treasurer of St. Clair county, whereupon, Pickens Pearson filed a contest. From a motion granted dismissing his contest Pearson appeals.</p> <p>The court having jurisdiction of the subject matter and having acted upon the statement of the grounds of contest assumed jurisdiction and it was a matter for the court to pass upon. — Hilliard v. Brown, 103 Ala. 318, and cases there cited. The fact that petitioner was a qualified voter in said county at the time of said election, is not jurisdictional. — Ex parte Haralson, 75 Ala. 543. This is not required by section 471, Code 1907. The averment that the contestant was a candidate and was duly elected to the office in question, is sufficient. — 15 Cyc. 408) subd. J. and cases there cited) 18 Century Dig.; Title Elec. sec. 18. The court erred in refusing to permit the amendment to the grounds of contest. — Sec. 5857, Code 1907; Black v. Face, 130 Ala. 514.</p> <p>A bond is required for security of cost. Secs. 462, 471 and 475, Code 1907; Ew parte Norgan, 30 Ala. 51; Wilson v. Dim-can, 114 Ala. 669. The statement must show on its face that the contestant was a qualified voter and this is jurisdictional. — Black r. Pace, 130 Ala. 523; Hilliard v. Broion, 79 Ala. 103. A full, complete and exhaustive discussion of the questions involved in this case will he found in the case of. — Gillespie x. Dyon, 33 L. R. A. 703.</p>

<p>Appeal from St. Clair Probate Court.</p> <p>Heard before 1-Ion. W. S. Forman.</p> <p>Margaret Coker applied to the probate court to have lands allotted to her as exempt in lieu of homesteads out of the lands left by her deceased husband. Commissioners were appointed who allotted the land and made report thereof. From a decree confirming the report G. W. Coker and others, heirs of the estate appeals.</p> <p>The wife by deserting both her husband and his home forfeits her right to his homestead at his death. — 9 A. & E. Ency of Law; 500; 21 Oyc. 565; 8 Tex. 312; 9 Tex. 630; 45 Tex. 557; 64 Tex. 705; Norton v. Norton, 94 Ala-485; Barbour v. Williams, 74 Ala. 331.</p> <p>The wife or widow was entitled to homestead, since no exception is made in section 2069 or section 2070, Code 1896. — Nolan v. Doss, 133 Ala. 259.</p>

Heard before Hon. Alto Y. Lee. From a judgment of conviction for failure to work the street of the city of Gadsden, or in lieu thereof paying the amount fixed by said city, J. T. Whitt .appeals. Having paid his tax to Alabama City, defendant was not liable for street tax to the city of Gadsden for the same year. — Board of Rev. v. Gas Go., 64 Ala. 269; Mayor, etc. v. Stonewall I. Go., 53 Ala. 570; 17 A. & E. Ency. of Law, 26; Barnes v. Moragne, 145 Ala. 312.

Heard before Hon. W. W. Haralson. Ejectment by Mike Hill and others against J. W. Gay. Judgment for defendant and plaintiff appeals. A liberal construction should be given the deed, and it should be made to operate ás a deed if possible. — 13 Cyc. 604-5; 20 L. R. -A. 848. The defendant cannot set up want of notice of the Baron áeeá.-Alexcmder v. Wheeler, 78 Ala. 167.

<p> Ejectment. </p> <p>1. Deeds; Construction; Intention of Qramtor. — If there is anything in the deed to show that the grantor intended to employ technical legal terms used indiscriminately in the deed in a different sense from the legal technical meaning, the courts will undertake to construe the deed, to ascertain the intention of the grantor without regard to the legal technical meaning.</p> <p>2. Same. — Where it is sought to draw from the deed the creation of a tenancy in common to one and his lawful heirs, and the intention of the grantor becomes a matter of construction the fact that the grantor omitted to name the grantees must be considered in determining the grantor’s intention.</p> <p>5. Same. — The rule of construction is to reconcile if possible any repugnances between the granting and habendum clause of a deed, ■ but if this cannot be done, the granting clause will control.</p> <p>4. Same;- Estate Created; Children; Heirs. — A deed granting an estate to the grantor’s son and his heirs, granting the described lands to the son, and his lawful heirs to have and to hold unto the son and the children of his body, their heirs and assigns, forever (the son at that time having no children) created in the son an estate tail which was converted by the statute into a fee, since it wili be presumed that the word heirs, was used in the legal sense excluding the idea of participation with a living person, and the word, children, being equivalent to the word Heir, or issue, although in usual legal acceptation being a word of purchase.</p>

<p> Ejectment. </p> <p>1. Aclonotoledgment; Defective Aclmowledgment; Admissibility of Certificate. — The certificate of acknowledgment to a deed was not void because the names of the grantors were inserted or set out in the body thereof where the name and style of the officer taking it, should have appeared, and the certificate was signed at the bottom by the officer, and a certified copy of the record of the deed and certificate was admissible in evidence over such objection.</p> <p>2. Appeal and Error; Harmless Error. — Errors in respect to issues found in favor of the party complaining is harmless error at most.</p>

Heard before Hon. Thomas W. Davis, Special Judge. Ejectment by Zedora Hoven against John Gewin and others. From an order granting a new trial Hoven appeals. Counsel discusses the evidence and reviews the authorities, and insists that the court erred in granting a new trial. Counsel review the testimony and the history of the case, and insist that the court properly granted a new trial.

Heard before Hon. C. P. Almon. Action iu detinue by AY. IT. Gillespie against A. F. McCleskey, for goods, field by defendant, as .sheriff, by virtue of writs of attachment. From a judgment for defendant, plaintiff appeals. The facts sufficiently appear in the opinion of the court.

<p>Appeal from Mobile Circuit Court.</p> <p>Heard before Hon. Samuel B. Browne.</p> <p>Detinue by McDonald Bros., against T. J. Hickey, From a judgment for plaintiffs’ defendant appeals.</p> <p>The facts in this case are sufficiently stated in a former report of this case in 151 Ala. 497, 44 South. 201, 13 L. E. A. (N. S.) 413, reference to which is here made. The following- charges were requested by the defendant and refused: (1) The general affirmative charge. (3) “The court charges the jury that if they believe from the evidence in this case that Hickey did not have any notice of the mortgage to McDonald Bros., and they further believe from the eivdence that Hickey did not have any information which, if followed up, would lead to notice of said mortgage to McDonald Bros., then you must find for the defendant, and assess the alternate value of the property, and also assess the damages for the detention of the same.” (4) “The court charges the jury that if they believe from the evidence that Hickey, the defendant in this case, had no notice of the mortgage to McDonald Bros., nor any information which, if followed up, would lead a reasonably prudent man to notice that Tilly had obtained the mule by fraud, and that McDonald Bros., held a mortgage on said mule, before the purchase of the mule from Tilly, then you must find for the defendant.” (5) “The court charges the jury that, before the plaintiffs can recover in this case, they must prove that tlie defendant received such notice, or was placed in possession of such facts, as, if followed up, would lead to notice of the existence of the McDonald mortgage, before the defendant purchased the mule from Tilly.” (7) “The court charges the jury that if they believe from the evidence in this case that .T. J. Hickey, the defendant in this case, had no notice of the mortgage to McDonald Bros., nor any information which, if followed up, would lead a reasonably prudent man to notice that Tilly had obtained the mule by fraud, and that McDonald Bros., held a mortgage on said mule, before the purchase of said mule from Tilly, then you must find for the defendant, and assess the alternate value of the property at $225, and the value of the hire or detention at $90.”</p> <p>Fraud practiced by a vendee in obtaining a sale to him of property renders the sale voidable, not void. — Wilk v. T. Simmons cG Co., 117 Ala. 285; Peterson & Go. v. Steiner Bros., 108 Ala. 621; Shyer & Bro. v. Qoetter-W eil & Go., 102 Ala. 313; Robertson, et al. v. Levi, 81 Ala. 134; Benjamin on Sales, sec. 648-9. We desire to call the court’s attention to the cose of Edmunds v. Transportation Company, 135 Mass. 283, for a discussion of the distinction as to' when title passes and when title does not pass in those cases where there has been a misrepresentation as to the identity of the vendee. The mortgage having been executed in the name of Pressner, if it had been recorded would not have been noticed that Tilley had mortgaged any of Ms property. — Johnson v. Wilson, 137 Ala. 468; Grimmer v. Nolan, 40 South. 97. Where one or two innocent persons must suffer by reason of the fraud of the third person the loss must fall on that party who made the fraud possible. — Allen, et al. v. Maury & Go., 66 Ala. 10. We call the court’s attention to the case of Mackey v. Gole, 48 N. W. 520.</p> <p>Counsel insist that the case should be affirmed and in support thereof, cite the former appeal in this case, 151 Ala. 479, and the annotations in this same case as reported in 13 L. B. A. (N. S.) 413. They further cite Shealy v. Edwards, 68 Ala. 417; Foxworth v. Broum, 114 Ala. 66; Tiedman on gales, sec. 329.</p>

<p> Detinue. </p> <p>1. Sales; Title Acquired. — One who acquires property to purchase from a party who has no authority to sell acquires no title to such property.</p> <p>2. Principal and Agent; Authority to Sell; Jury Question. — There-being conflict in the testimony as to the authority of a third person to sell the property sued for, the question of the authority of such person to make the sale was one for the jury to determine.</p> <p>3. Evidence; Admissions; Conclusiveness. — An admission that is denied and disputed by other evidence is not conclusive; and if a party admitted that he authorized another to sell oxen for him,, which he denied a charge asserting that the admission was not conclusive should have been given.</p> <p>4. Charge of Court; Effect of Admission. — A charge asserting that though the jury might believe that defendant made an admission of the authority of a third person to sell the oxen, plaintiff could not recover unless the jury are reasonably satisfied that he in fact authorized the sale is proper; and such charge is not covered by a charge asserting that the burden of proof is on the plaintiff to reasonably satisfy the jury that the defendant authorized such third person to sell the oxen.</p> <p>5. Same; Undue Prominence as to Particular Matters. — Where the-plaintiff relied on the admission of the defendant as to the authority of a third person to sell the oxen to establish such authority, a charge asserting that although the jury might believe that the defendant made such admission of authority, yet, the plaintiff could not recover unless the jury were reasonably satisfied that defendant authorized the third person to make the sale, or in fact, authorized the sale, is not objectionable as giving undue prominence to particular matters.</p> <p>6. Same; Invading Jury Province. — A charge asserting that evidence of casual statements or admissions by a party made in casual conversation and to disinterested parties is regarded in law as very weak testimony, owing to the liability of witnesses to misunderstand or forget what was really said or intended assumes that the admission, if made, was casaul, and was invasive of the province of the jury.</p> <p>8. Same. — A charge asserting that verbal admission uncorroborated by other facts or evidence in the case should always be weighed with great caution, assumed that such admission were uncorroborated, and therefore, invasive of the province of the jury.</p> <p>9. Same; Weight of Admissions. — A charge is manifestly bad which asserts that evidence of admisions relating to facts of which the witness had no personal knowledge, is weak and inconclusive.</p> <p>10. Detinue; Verdict and Judgment; Separate Assessment of Value.. ■ — Where the complaint claimed oxen by yoke and the value was proven by yoke, there was no error in the judgment assessing the-value of the oxen by the yoke, although the statute requires the assessment separately of each article sued for in detinue when practical.</p>

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. A. D. Sayre.</p> <p>Detinue by tbe Vulcan Iron Works Company against John D. Roquemore, for a steam shovel. Judgment for plaintiff and defendant appeals.</p> <p>For the facts see opinion in former report of this case. — 151 Ala. 643, 44 South. 557.</p> <p>Plaintiffs are not entitled to recover as they did not have the legal title or the right to immediate possession. — Ryall v. Pearson Bros., 41 South. 673; Vulcan I. W. Oo. v. Roquemore, 151 Ala. 543.</p> <p>It is earnestly insisted that the city court tried this case in strict accordance with the former decision of the Supreme Court found in 151 Ala. 643; 44 South. 557, and that no errors intervened.</p>

Heard before Hon. Tennis Tidwell, Special Judge. Detinue by the Cable Company of Alabama against L. C. Griffitts for a piano. Judgment for defendant and plaintiff appeals.’ The court erred in refusing to strike plea 1.— Baron v. VanVert, 13 Ala. 232.

<p> Assumpsit. </p> <p>1. Counties; Action Against; Venue. — The Act of Feb. 27, 1907, (Local Acts 1907, p. 291) merely authorizes action in any of the courts of Cullman county having jurisdiction thereof, and does not change the general rule that an action against the county shall be brought in the courts thereof.</p> <p>2. Same; Dimisión; Apportionment of Debt. — Upon the division of counties it is not necessary that the act detaching portions from one county and attaching it to another should apportion the .debt. This may be done subsequently without invading any vested right within the meaning of the Constitution, as was done by Local Acts 19U7, p. 290.</p> <p>3. Limitation of Action; Accrual of Right of Action.' — Blount county built a bridge and subsequently a part of its territory, including a part of the bridge, was detached and joined to Cullman county. Subsequently, the Legislature passed an act making Cullman county liable therefor and giving Blount county a right of action against Cullman county on this demand. Held, the statute of limitations did not commence to run against Blount county’s action until the date of the statute rendering Cullman county liable for the claim.</p>

<p> Assumpsit. </p> <p>1. Pleading; Pacts or Conclusion. — Where the action was for rent a plea alleging that the landlord, agreed to repair the premises, but that he broke his agreement to make such repairs and that as a proximate consequence thereof defendant was damaged in a specific sum which he offered to set oft against the landlord’s demand for rent, is not demurrable as stating a conclusion .</p> <p>2. Landlord, mid Tenant; Rent; Set-off. — Damages for failure to-repair in accordance with the contract may be set off against the rent in an action therefor, as such demand is not objectionable as sounding in damages merely; a debt or demand not sounding in damages merely being one which, when the facts are ascertained, the law is capable of measuring accurately by a pecuniary standard: (Sec. 5859, Code 1907.)</p> <p>3. Same; Contract to Repair; Necessity of Consideration. — Where the original contract of leasing provides that the lessor shall not be required to make any repairs upon the building leased unless so stipulated and agreed upon in writing at the commencement of the lease, and should not be liable for any damages from rain, wind, etc., a subseqent contract by which the landlord, contracts to make certain repairs is a new and independent contract and must be supported by some consideration other than that of the contract of lease.</p>

Heard before Hon. H. A. Pearce. Action by G. L. Sherrer against the Enterprise Banking Company on the common counts. There was judgment for plaintiff, and upon motion the court set aside the judgment, and plaintiff appeals. G. L. Sherrer and her sister, Selina D. Alison, were the joint owners of a body of land in Macon county, which they sold to R. W. and Lucinda Hutchins for the sum of $1,600; the transaction being conducted by W. N. Slierrer, husband of the plaintiff.

Heard before Hon. C. W. Feeguson. Action by Mrs. Allie Hooser against the United Order of the Golden Cross, on a mutual benefit certificate issued to her former husband, James M. Hooser. Judgment for plaintiff and defendant appeals. The court erred in overruling demurrers to the count as amended.-Form 12, Code 1896; 105 Ala. 498.

Heard before Hon. W. W. Haralson. Assumpsit by I. P. Russell against S. S. Broadus and others, on guaranty. Judgment for plaintiff and defendants appeal. In connection Avith this case see Russell v. Broadus Cotton Mills, 39 South. 712. A contract may have for its consideration the making of another contract, and Avhen such is the case, the breach of one is the discharge of the other.- — 9 Cyc. 316, and note; 62 N. Y. 139; 22 N. Y. Supp. 516.

Heard before Hon. C. C. NeSmitx-i. Garnishment proceedings begun by Isham D. Hobbs as trustee and. others against Yon L. Thompson as president, etc. The proceeding's were dismissed on motion of the garnishee, the principal defendant having been adjudged a bankrupt within four months of the garnishment proceedings. From this judgment plaintiff appeals. The adjudication of bankruptcy did not necessarily dissolve the garnishment. — 6 Am. Bank.

Heard before Hon. John H. Disqiie. Action by Edith Kyle Thompson begun by attachment against S. A. Shapiro to enforce her landlord’s lien for the balance of the unexpired lease, and levied upon the goods exempted to Shapiro in the bankruptcy proceedings. Judgment for plaintiff and defendant appeals. If, for any reason, the relation of landlord and tenant did not exist, there would be no lien and the attachment would fall.

Heard before Hon. W. W. Haralson. Assumpsit by Birmingham Trust & Savings Company as endorsee and transferee on a certain promissory note against W. W. Curry and others, as makers. Judgment for defendant and plaintiff appeals. Evidence of other transactions were not admissible. — Martin v. Smith, 116 Ala. 639; Oden v. Rippetoe, 4 Ala. 68; Smith v. Rodgers,, 1 S. & P. 322. The portion of the oral charge excepted to is erroneous.

Appeal rom Jefferson Circuit Court. Heard before Hon. John H. Miller, Special Judge. Assumpsit by Max J. Winkler Brokerage Company against George Courson. Judgment was confessed in the justice court, and a writ of ceriorari was issued from the circuit court to bring up the judgment for review. On a trial de novo- in the circuit court the defendant had judgment and plaintiff appeals. The court erred in overruling plaintiff’s motion to quash the writ.

Heard before Hon. H. H. Blackman. Action by the Rainor Mercantile Company against J. W. Scoggins, with garnishment against J. J. Johnson. There was judgments for plaintiff against the garnishee, and against the garnishee in favor of defendant, and the garnishee appeals. The Rainor Mercantile Company, having recovered a judgment against J. W. Scoggins, issued garnishment on said judgment against J. J. Johnson.

Heard before Hon. W. W. Haralson. Assumpsit- by J. A. Stone against J. R. Lawrence and others. Judgment by default, from which defendants appeal. Twenty days notice of suit is necessary to sustain a default judgment. It cannot rest partly in parol and partly in writing. — Timber - lake, et al. v. Breioer, 59 Ala. 108; Graham v. Reynolds, 15 Ala. 578; Connelly v. A. & T. R. R. Co., 29 Ala. 373.

Heard before Hon. C. C. Nesmith. Action by Hendy A. Burns, administrator of John L. Burns, against E. M. Tutwiler, for breach of a building contract. Judgment for plaintiff. Defendant appeals.. The contract was objected to because, in the preamble-of the same, a blank ivas left so as not to state who was. the party of the first part in said contract, and on the-further ground that there had been an alteration or-change in the terms of the contract.

Heard before Hon: C. C. Nesmith. Action by' the Southern Railway Company against Samuel E. Greene, ás judge of probate of Jefferson county, to recover an intangible franchise tax paid said county under protest. Judgment for defendant and plaintiff appeals.

Heard before Hon. C. W. Ferguson. Action by L. Lawrence against Fred Bassenberg. Judgment for plaintiff, and defendant appeals. The first count set out the contract by which L. Lawrence agreed to move two houses, after the manner de.scribed in the contract, and to replace all brick work in first-class condition, and to raise one of the houses two feet from the ground; the party doing the moving to furnish all material necessary to complete the job.

Heard before Hon. W. W. Haralson. Action by L. R. Roach against G. R. Cox, for money paid as surety in 1878. Judgment for defendant and plaintiff appeals. The presumption resting upon failure to act is overcome by conditions showing that no action could be taken. — 22 A. & E. Ency of Law, 604; Id. 1187. It may be repelled by evidence of a circumstance showing non payment. — 22 A. & E. Ency of Law, 597, et seq.; Allen v. Eberly, 24 Ohio 97.

Heard before Hon. A. H. Alston. Assumpsit by A. B. Vandergrift & Son against J. W: Hawldns. From a judgment for defendant, plaintiffs appeal. The testimony tended to show that one Evans and defendant made a contract to farm on shares; Hawkins furnishing the land and team, and Evans the labor.

<p> Assumpsit. </p> <p>1. Amendment; .Appeal from Justice Court. — The affidavit in the justice court alleged that defendant' was indebted to plaintiff for the rent, and the complaint sought to enforce a landlord’s lien for rent by averring that the claim was for rent. On appeal to the circuit court, from the judgment fixing the amount of rent it was error to permit an amendment seeking the recovery of money not arising out of the relation of landlord and tenant.</p> <p>2. Assumption; Nature of Remedy. — As title to land cannot be tried in assumpsit that action will not lie to recover rent received under adverse holding of the land out of which the rent arises, even at the instance of the rightful owner thereof.</p>

<p>Appeal from Lauderdale Circuit Court.</p> <p>Heard before Hon. C. P. Almon.</p> <p>Action by the Acme Lumber & Manufacturing Company against the Merchants’ Bank. Prom a judgment for plaintiff, defendant appeals.</p> <p>The pleas referred to therein are as follows: (7) “Por further plea defendant says that this suit was instituted to recover the price of certain lumber and other material alleged to have been furnished by the plaintiff to W. R. Ambrose and this defendant to be used in the ■erection of a building in Tuscumbia, Ala., which the said W. R. Ambrose had contracted to build according to certain plans and specifications and plans made by Breeding & Whilding, architects; that plaintiff, before the erection of said building was begun, agreed with the said W. R. Ambrose, for the consideration of $2,200, to furnish all the lumber and other materials necessary for the proper erection and construction of said building according to the said plans and specifications as the same were needed, and in sufficient time to enable the said Ambrose to complete said building on or before the 15th day of November, 1905, the time specified in the contract between the said Ambrose and this defendant for the completion of said building, which contract provided for a forfeiture of $4 per day as damages until said building was completed. Defendant avers that the plaintiff knew of said contract and the forfeiture provided therein, and failed and refused to furnish a part of the lumber and material to be used in the erection of said building as it had agreed to do; that it delayed the delivery of a large oart of the lumber and materials which it did deliver foi the erection of said building for three or four months,, during which time the said Ambrose was forced to suspend work on said building. And the defendant avers that by reason of the plaintiff’s failure to furnish lumber and other materials as it had agreed to do the work of completing the building was suspended and delayed for nearly four months, to Ambrose’s damage in the sum of $750, and the said Ambrose was damaged in the loss of a forfeiture of $4 per day during the time intervening between the 15th day of November, 1905, the time at which said building was by the terms of the contract with said Ambrose to have been completed, and the date of its completion, towit, the term of four months. Defendant avers that said Ambrose was damaged, in that Ambrose had caused a large number, of carpenters and workmen to be employed to do the work of erecting said building, and that by reason of the plaintiff’s failure to comply with its said contract with Ambrose the said Ambrose was forced to suspend work on said building, and was put to the trouble and expense of employing other and different carpenters and workmen to do the work of erecting the building, to his damage in the sum of $850. And defendant avers that the said Ambrose was damaged, in that a large part of the material furnished by the plaintiff was not of the character and grade provided for by the terms of the contract and the plans and specifications, and some of the material had to be removed, and other and better material put in its place, to the damage of said Ambrose in the sum of $450, all of which defendant, by consent of W. R. Ambrose, pleads in recoupment.” (10) “For further plea defendant says (the same as plea 7, except that the agreement was alleged to have been made with Ambrose and this defendant, and in the last paragraph of the plea it is alleged that some of the material furnished is not cut in the dimensions specified, and was not dressed, and could not be used; otherwise it is similar in all respects to plea 7).”</p> <p>The following charge was refused to the defendant: (1) “If you believe from the evidence that the plaintiff made a proposition to W. R. Ambrose to furnish him with the material mentioned in the estimate dated June 15, 1905, and Ambrose accepted it, and the plaintiff afterwards supplied him with the material on the basis of that estimate, then I charge you that the plaintiff cannot recover from defendant anything for the material included in that estimate.”</p> <p>For the difference between recoupment and set-off see. — 7 Words & Phrases, 6017 and 6061; Norton v. Sinkhorn, 63 N. J. 313; Mason v. Knox, 20 Mo. -433; Lawton v. Ricketts, 104 Ala. 430; 13 Ala. 595; 321 la. 244. The right to recoup exists in favor of a surety with the consent of the principal. — 25 A. & E. Ency of Law, 558; Waterman v. Clark, 76 111. 428; Scroggins v. Holland, 16 Mo. 419. The witness could not testify as to the reason why they stopped sending the lumber. — Young, v. Arntz, 86 Ala. 116; Burks v. Bragg, 89 Ala. 204; Baldwin v. Walker, 91 Ala. 428. The officer was without authority to bind the bank unless the corporation afterwards ratified it.— National Bank v. O’Neal, 128 Ala. 196.</p> <p>Code of Alabama Section 3728 provides that mutual debts existing between the parties at the commencement of the suit may be offset. A set off to be available must be owned by the defendani in absolute right at the time the suit is brought. It is not enough that, together with another partner, the defendant owns the claim. It must be such a demand, as that he in his own name, or in the name of defendants .sued, without bringing in the name of a stranger to the suit, may maintain an action thereon against the plaintiff. — Drennen v. Gilmore Brothers, 132 Ala. 246. The demand sought to be offset, must be such an one, as would have enabled the defendant in his own name, to Lave maintained thereon an independent action against the plaintiff, and such must have been its status at the time the suit was commenced. — Drennen v. Gilmore Brothers, supra; St. L. & T. R. P. Go. v. MoPeters, 124 Ala. 455; Lawton v. Ricketts, 104 Ala. 430. A defendant may by different pleas raise as many separate defenses ■applicable to his case as he desires — but—each separate plea must show a defense of itself, and be consistent within itself. — St. L. & Tenn. R. P. Go. v. MoPeters, 124 Ala. 455. The above rules apply equally to recoupment as to set off. By a plea of set off or recoupment, the defendant admits the validity of the plaintiffs contract, and in effect confesses the debt sued on. — St. L. & T. R. P. Go. v. MoPeters, supra. For a plea of set off, or recoupment to be sufficient, it is necessary that it contain the same averments which would make it a good complaint if the claim sought to be set off or recouped were sued on. — Lawton v. Ricketts, supra. The rule in Alabama is that uncommunicated intentions or reasons— motives or purposes may not be testified to — although the rule in other states is different. Where the reason for doing what .was in fact done is communicated — -the rule in this state is the same as in other jurisdictions.— McCormick & Richardson v. Joseph & Anderson, 77 Ala. 236. The statute of frauds as a defense must be specially pleaded or it will be considered as waived, although pro sented by tbe evidence. — Espolia & H. v. Wilson 8. & Co., 86 Ala. 487; Lagerfelt v. MoK'ite, 100 Ala. 430. A charge, not asserting a correct legal proposition as applied to the evidence, should be refused. — Martin v. Kill, 42 Ala. 275.</p>

Heard before Hon. Joseph H. Nathan. Action by W. H. Gillespie against W. H. Hester From a judgment for defendant, plaintiff appeals. Tbe note was given for tbe first premium on an insurance policy of $5,000.

Heard before Hon. W. H. Simpson. Bill by John F. Proctor as administrator against the Nashville, Chattanooga & St. Louis Railway, to quiet title to a certain tract of land. From a decree for complainant respondent appeals. See also former report of this, case found in 152 Ala. 482, 44 South. 669.

<p>Appeal from Butler. Chancery Court.</p> <p>Heard before Hon. Luoien D. Gardner.</p> <p>. Creditors’ bill by W. F. Vandiver & Co. and others against J. H. Davis and others to set aside conveyances.. From a decree for complainants, defendants appeal.</p> <p>It appears from the records that while Vandiver & Co., and Schloss & Kohn, were creditors at the time of the execution of the deed that these .accounts have long sine», been paid, and hence, they had nothing to complain of. —Wimberly v. M. F. Go., 132 Ala, 113; Watts v. Burgess, 131 Ala. 333. In running accounts credits are always applied to the oldest items. — Section 4622, Code 1907. The appellees not being existing creditors at the time, no burden rests on the appellant to show the real consideration for the deed, but in any event, the consideration was shown to be sufficient. — Schloss & Kohn v. McGuire, 102 Ala. 626; Green v. Emmens, 135 Ala. 563. In any event, if the property transferred was done in good faith, and for a valuable consideration, and no interest was reserved to the debtor, he had a perfect right to make the deed. — Polloch v. Myer, 96 Ala. 172; Wing v. Roselle, 74 Ala. 346. If there was fraud, the complainants were the direct beneficiaries. — Green v. Emmens, supra; Smith v. Collins, 94 Ala. 394; Garter Bros, r. Coleman; 84 Ala. 256.</p> <p>Counsel discuss the evidence and insist that a question of fact existed rather than one of law, and content themsehes with citing the cases cited by the chancellor in his opinion as bearing on the various questions presented. These cases are as follows:- — Russell v. Davis, 133 Ala. 655; Murphy v. Green, 128 Ala. 486; Gordon v. Mclhoain, 82 Ala. 247; Schloss & Kohn v. McGuire, 102 Ala. 626; Murray v. Hurd, 103 Ala. 400. As to the burden resting on the Avife to show that she paid for the land with her OAvn means they cite. — Silvey v. Vernon, 45 South. 68 ; Kelly v. Gonnell, 110 Ala. 543; Southern H. B. & L. A.ssn. v. Riddle, 129 Ala. 652; Wimberly v. Montgomery Pert. Go., 132 Ala. 114.</p>

<p>Appeal from Pickens Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Bill by M. A. O’Briant and others against M. L. O’Briant and others. From a decree dismissing the bill, complainants appeal.</p> <p>The case as made by the bill is as follows: All the litigants, both complainants and respondents, are heirs at law of S. T. O’Briant. That on the 18th day of July, 1893, S. T. O’Briant executed and delivered to- M. A. O’Briant a deed, for the reciated consideration of $600, conveying* all his real estate, which is described in the bill, and that M. A. O’Briant claimed such said property after the execution of said deed up to the time of the father’s death, and that a few days prior to the father’s death he executed and delivered to the defendant M. L. O’Briant, and L. A. and R. M. O’Briant, a deed to the same land, and also to said personal property herein set out. That to avoid any litigation over the two- deeds it was mutually agreed and understood by all the heirs, including all the grantees in both of said deeds, that the said property should be sold and divided equally between all of said heirs, and the agreement was put in writing* and is made an exhibit to the bill. It is averred that M. A. and S. T. O’Briant were claiming title to the property, and there was threatened litigation in reference to the same, contesting thb validity of the deed made by the father to the grantees in the two deeds; and it was mutually agreed that, for the purpose of avoiding and settling all differences and claims, the, property conveyed by the deed should be divided equally, and that it should be sold for that purpose, and that each should, take his distributive share in the same, and that for the purpose of carrying out this agreement, and to save costs, all the heirs executed a deed to M. L., L. A., and R. M. O’Briant, conveying all the personal- property and real property left by their father, and included in the two above-mentioned deeds. It is alleged that all the property belongs to S. T. O’Briant, the father, that he is dead, and that the agreement and the last-named deed were made for the purpose of avoiding litigation and for the purpose of effecting a division. It is then alleged that the property cannot be equitably divided without a sale thereof, and that it should be sold and divided among the heirs according to the terms and intentions of the parties, and that M. L. O’Briant undertook the trusteeship for that purpose, but that the heirs mentioned in the deed made by all, the heirs have wholly failed to do this, and are converting the personal property to their own use, as well as the real estate, and it will take a decree of this court to specifically perform the contract, which is followed by a prayer for cancellation and specific performance.</p> <p>If equity is apparent on the face of the bill from the facts stated, the bill will be considered amended on a motion to dismiss for want of equity, leaving respondent to his remedy by demurrer. — West v. L. & IV., 137 Ala. 68; Blackbruh v. Fitzgerald, 130 Ala. 584; Gardner v. Knight, 124 Ala. 273; Seals v. Robinson, 75 Ala. 368. The instrument set out in the bill is sufficient to prevent the trust being void under the statute of frauds.— Manmng v. Pippm, 86 Ala. 357; Brock v. Brock, 90 Ala. 86. In any event, complainants are entitled to a cancellation of the deed.' — Brock v: Brock, supra; Manr'wg v. Pippm, supra; 93 Ala. 549; 99 Ala. 558; 128 Ala. 608.</p> <p>The purpose and sole purpose of the bill of complaint filed in this cause is to enforce a parol trust in lands. That this can not be done is well settled in this state. — Jacoby v. Funkhouser, 147 Ala. 254; Patton v. Beecher, 62 Ala. 580; Oden v. Lockwood, 136 Ala. 514. The case made by the bill is essentially one'for the'enforcement of a contemporaneous parol agreement or understanding to the destruc-tion of the duly executed deed of complainants; and no more in equity than at law can any relief be predicated upon such a state of facts. — Stacey v. Walker, 125 Ala. 291; ~Wa/re v. Cowles, 24 Ala. 446; 2 Pom. Eq. Jur. § 854 and note. If appellants are estopped by their deed from claiming an interest in the lands in controversy and can not set up and have enforced a parol trust in the lands, the personality having been converted by appellees and they insolvent as is alleged, then what relief can a court of equity give then! The court will not decree a vain and useless thing. — Gardner v. Knight, 124 Ala. 273. The bill seeks to enforce the specific performance of an obligation for only undefined personal acts of the obligor which a court of chancery will not specifically enforce. — Gardner v. Knight, supra.</p>

Heard before Hon. A. H. Benners.' Bill by tbe East Birmingham Realty Company against the Birmingham Machine & Foundry Company and others. From the decree there was an appeal and cross-appeal. Reversed and remanded on cross-appeal, with directions. Counsel refer to and cite the cases as to the statute under which the bill was filed.

Heard before Hon. W. J. Pearce. Suit by Wright, Williams & Wadley and others, cred itors of W. J. Skinner, against Green & Gay and others. From a decree overruling a demurrer to the bill, defendants appeal. The bill seeks relief under two aspects, and cannot be maintained in the present attitude. The demurrers raising these questions should have been sustained.

<p>Bill to Cancel Trust Deed, and for a Sale for a Division.</p> <p>1. Tenancy in Common; Tax Sale; Redemption; Effect. — A husband and wife own an undivided half interest in land which subsequent to the death of the wife was sold for taxes, and thereafter the husband’s interest was sold at execution sale and bought by the purchaser at the tax sale. An heir of the wife redeemed her undivided half interest from the tax sale. Held, that his redemption, although valid as far as it went, restored only the prior status quo, and if the purchaser or those claiming under him had an interest or title other than that redeemed, such title remained unaffected. The redeeming heir became a trustee of the title and interest redeemed from the tax sale for the equal benefit of all the heirs, and the right of the other heirs to participate in the benefit of the redemption is not affected by the fact that their right of redemption originally had been lost by limitation.</p> <p>2. Partition; Parties; Indispensable Parties. — Where one of several heirs redeemed an undivided half interest in lands from a tax sale, such one cannot sue the owner of the other undivided half interest for partition, and for an accounting, without making his coheirs parties.</p> <p>3. Same; Defects; Non-Joinder of Pan-ties. — The Chancellor may of his own motion, even on final hearing, notice a defect of omission of necessary parties and order the bill to stand over for amendment or dismiss it without prejudice.</p> <p>4. Appeal and Error; Defect of Parties; Necessity of Objection. —The failure to make indispensable parties parties to an appeal may be noticed on appeal without further suggestion.</p>

Heard before Hon. Charles A. Senn. Bill by Molly Didlake as administratrix of a deceased partner against the Roden Grocery Company and others to disaffirm a sale of partnership effects, and for an accounting. From a decree refusing relief complainant appeals. Upon the death of a partner, the surviving partners are vested with the title to all partnership property as trustees for the creditors of the firm and for themselves and the representafives of the deceased partner.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. A. E. Sayre.</p> <p>Bill by Henry B. Gray against the South & North Alabama Railroad Company and others to enjoin the sale of its road, etc. From a decree for complainant, defendants appeal.</p> <p>The Louisville & Nashville Company, a foreign corporation, owned a majority of the stock of the South & North Company, and the two roads had been operated as a continuous line for a number of years; the former having floated bonds for the latter company to enable it to extend its line and continue operations.</p> <p>A chancery court cannot take jurisdiction of a matter already pending before another chancery court of this state.- — Gray v. S. & N. A. R. R. Go., 43 S'ou. Bep. 859. A stockholder cannot maintain a suit on behalf of his corporation without first having made a demand upon the corporation to bring the suit and the refusal of that corporation, or without malting a proper showing that such a demand would be useless.- — L. & N. R. R. Go. v. Real, 128 Ala. 149; Decatur v. Palmer, 113 Ala. 531; Hawes v. Oakland, 104 U. S. 450. Whenever one party does an act at the request, or upon the demand, of another, the other is estopped from denying the right to do the act. — McGhee v. Drisdale, 111 Ala. 600; Robins, Fry and Gompanvy v. Wooten, 128 Ala. 376; Kahn v. Peters, Admr., 104 Ala. 528; Fields v. Killon, 129 Ala. 373; Goetter, Weil & Go. v. Harmon Bros., 107 Ala. 586; Lehman, Durr & Go. v. Clark, 85 Ala. 109; Calckoell v. Smith, 77 Ala. 165; Dickson v. McLarney, 97 Ala. 383; Hendricks v. Kelly, 64 Ala. 391. A railroad company, whatever may be its charter, has the right to sell its property and franchises under Sections 1169, 1170 and 1171 of the Code of 1896 (Sections 3497, 3498 and 3499 of the Code of 1907). The fact that the South and North Alabama Bailroad Company has allowed the Louisville & Nashville Bailroad Company to operate its property under an arrangement with its directors for a great number of years raises the presumption that the provisions of 1169 and 1170 of the Code of 1896 and, therefore, the provisions of the Constitutions of 1875 and 1901, have been accepted by it. — L. & R. R. R. Go. v. State, 45 Sou. 303. The fact that the directors were elected by the vote of the stock of a corporation holding a majority of the capital stock of the corporation in Avhich the directors were elected does not show that the directors are not representing their corporation in good faith. — Decatu/r Mineral Land Co. v. Palm, 113 Ala 539; Potter v. Pittsburg Bessemer Steel Co., 130 U. S. 670. Allegations that directors are under the domination and control of a corporation axe merely allegations of conclusion and not of fact. — Neil v. L. & N. R. R. Co., 12S Ala. 150. A stockholder in a corporation has the right to vote his stock as he pleases wisely or unwisely, for the benefit of the company or against it. — Moses v. Soolt, 84 Aia. 611. A foreign corporation has the statutory right to i ote its stock in a domestic corporation.— Code 1907, Sec. 3640. A stockholder in a corporation also has a statutory right to have that corporation sell its property to another corporation. — Code 1907, Sees. 3496, 3498. One person may act as the agent of two others in their dealings between themselves with the consent of both parties. — Fitzsimmons v. Sou. Express Co., 40 Ga. 336; O’Connor Mining & Mfg. Co v. Coosa Furnace Co., 95 Ala. 617. The acts of an agent acting for both parties to a transaction are voidable only and not void ab initio. — Mobile Land and Imp. Co. v. Gass, 142 Ala. 520; Corey v. Wadsworth, 118 Ala. 504. Courts cannot deny the rights of parties because in the use of such rights an opportunity is afforded for deceiving the court or perpetrating a fraud. — Corey v. Wadsworth, 118 Ala. 505. The court will restrain the holder of a majority of the capital stock in a corporation from voting that stock for the purpose of oppressing or defrauding the minority stockholder, but a court will not restrain such holder of a majority of the stock from otherwise exercising' its rights as a stockholder. — Davis v. United Electric & Power Co., 77 Md. 35; Transportation Co. v. Beatty, 12 App. Cases 559; Cambell v. Water Company, 123 N. Y. 91 (25' N. E. 201) ; Bjorngaard v. Goodhue County Banlo, 52 N. W. 48; Montgomery Traction Co. v. Harmon, 140 Ala. 520. This case when shorn of the accounting feature makes out no case for the appointment of a receiver pendente lite. — Gray v. 8. & N. A. R. R. Go., 43 S'ou. 859. A receiver cannot he appointed except pendente lite. — Micou v. Moses, 72 Ala. 440; Meyers v. Johnson, 50 Ala. 335; Baaik of Florence v. U. 8. Savings and Loan Assn., 104 Ala. 299; Overton v. Memphis & Little Roch R. R. Go., 10 Fed. Rep. 866; Myers v. Thomas, 113 Ala. 11; Ftoioah Mming Go. v. Wills Valley Mining Go., 106 Ala. 496; Bridgeport Development Go. v. Tritsoh, 110 Ala. 287.</p> <p>The averments of the hill show that the complainant was entitled to maintain the bill and, therefore, the demurrer to the bill as a whole, and each averment thereof was properly overruled. — George v. Gent. R. & B. Go., of Ga., 101 Ala. 6.08; M. & G. R. R. Go. v. Wood, 88 Ala. 6.30; Decatur M. L. Go. v. Palm, 113 Ala. 531; Bridgeport Dev. Go. v. Tritsch, 110 Ala. 264; Sterner v. Parsons, 103 Ala. 215; Roman v. Woolf oik, 98 Ala. 219; Americmv -Go. v. Lynn, 93 Ala. -612. The complainant seeks protection as a stockholder from the illegal acts of his own company through its directors and others, from a settlement upon a ruinous basis. — E. T. V. & G. R. R. Oo. v. Grayson, 119 U. .S. 240; Gent. R. R. Go. of N. J. v. Mills, 113 H. S. 249. The appointment of a receiver is proper when the welfare of various interests demand it. — Beech on Receivers, secs. 339 and 344; 24 A. & E. Ency of Law, 4; 27 Hun. 584; 22 Blatch, 72. The effect of the appointment of a receiver of a railroad company is not to dissolve the corporation, but to direct its management under orders of the court. — 115 111. 52; 37 Ohio St. 251; Myer v. Johnson, 53 Ala. 237; Tilley v. Trustees, 58 Ala. 489'; Roman v. -Woolfoik, supra. As to when a receiver for a railroad will be appointed, see. — 98 Am. Dec. 692; 50 N. H. 200; 2 Woods, 323; 56 Fed. 909. Although the appointment of a receiver at the instance of a minority stockholder is a drastic remedy, a court of equity will make such an appointment when it plainly appears that there has been such fraud or mismanagement on the part of the officers and directors as works manifest oppression and wrong to such stockholders. — Beach on Receivers, Sec. 424, pp. 460-462; 23 Amer. & Eng. Wnc. Law, pp. 1023 et seq.; Roman v. Woolfolk, 98 Ala. 219; Davis v. XJ. 8. El. Row. & L. Co., 77 Md. 35; Hand n Dexter, 41 Ca. 454; Haywood v. Lincoln Lum. Co., 64 Wis. 45; Ratlibone v. Parkersburg Gas Go., 31 W. Ya. 798, where directors tried to change situs of corporation, failed to keep books, etc., and receiver was properly appointed; Blatchford v. Roos, 54 Barb. 42; s. c. 34 How. Pr. 110; Morris v. Elyton Land Go., 125 Ala. 263, 279; Elyton Land Go. t>. Dowell, 113 Ala. 177; See also Rothwell v. Robinson, ■44 Minn. 528; B. & O. R. R. Go. v, Gannon, 72 Md. 493; Ranger v. Champion Cotton Press Go., 52 Fed. Rep. 609; Flukes v. Emporia Oity Ry. Go., 48 Kan. 577; Mason v. Pewabic Mining Go., 133' U. S. 63; as to strictness of rule, and also Beach on Receivers, Sec. 424, p. 464; Greaves v. Gonge, 69 N. Y. 154; Brewer v. Boston Theater, 104 Mass. 378; Hmoes v. Oakland, 104 U. S. 450; Clark v. Wat. Linseed Oil Go., (C. C. A.), 105 Fed Rep. 787. A receiver will be appointed where it is made to appear that there is such fraud or maladministration that the business of the corporation can not be carried on honestly and to the best interests of its stockholders. The receivership, however, is limited in time and extent, as the circumstances will allow.- -3 Cook on Corps. (5tb Ed.) Sec. 746, pp. 1919-21; Davis v. XJ. 8. El. etc. Go., 77 Md. 35, where one company controlled the other; Miner v. Belle Isle Ice Go., 93 Mich. 97, 17th L. R. A. 412; Sternchberg v. Wolff, 56 N. J. Eq. 555, 389; State, v. Boston, etc. Co., 22 Mont. 220, 241, where all the property of the company is sold; Jasper, etc., Co. v. Wallis, 123 Ala. 652; Cameron v. Groveland Co., 20 Wash. 169; Sincer v. Alverson, 51 La. Ann. 955; McGilliard v. Don ■aldsonville, etc. Co. Works, 104 La. An. 544; Becker v Gulf City, etc. Go., 80 Tex. 475; where there had been illegal consolidation of the railroad; Aikin v. Col. River Irr. Go., 72 Fed. Rep. 591; Bridgeport Dev. Oo. v. Tritsch, 110 Ala. 274; Steioart v. Belt, 19 Sou. Rep. 957; State v. District Court, 15 Mont. 324; See especially, State e.x rel. Incl. Dist. Tel. Go. v. Second! Judicial Disi. Go. of Silver Bow Co., 15 Mont. 324; 27 L. R. A. 393; Re Lewis, 52 Kan. 660. The fact that the equipment of a railroad is insufficient to enable a receiver to operate it does not constitute an objection to the appointment of a receiver for the road. — Alderson on Receivers, p.-371, end of Sec. 284; Ball v. Maysville & Big Sandy. R. R. Go., 43 S. W. Rep. 731. Where corporate property has been sold or is about to be sold, a dissenting minority stockholder can maintain a bill of injunction to have set aside the sale made or prevent the making of the sale. A stockholder cannot be forced to part with his stock or to take a fixed price by the majority. — - Morris v. The Elyton Land Go., 125 Ala. 263, 275-277; Elyton Land Go. v. Dowdell, 113 Ala. 177; Forrester v. Boston M. G. & S. Go., 10 Amer. & Eng. Corp. Cases 39, 62; Kean v. J ohnson, 9 N. J. Eq. 401; Mills v. R. R. Go., 41 N. J. Eq. 1; Abbot v. Rubber Go., 33 Barb. 578; People v. Ballard, 134 N. Y. 269; Byrne Schuyler M. & E. Go., (Conn.) 28 L. R. A. 304; 65 C'onn. 336; Mason v. Pewabic Min. Go., 133 N. S. 50; Stevens v. R. R. Go., 29 Vt. 545; R. R. Go. v. Go-llms, 40 Ga. 582; N. O. J. & G. N. R. R. Go. v. Harris, 27 Miss. 517; Gity of Knoxville v. R '. R. Go., 22 Fed. Rep. 578; 2 Cook on Corp. (5th Ed.), Secs. 696, et seq.; See T. L. & T. Go. v. N. 7. & North Rwy., 150 N. Y. 410; Niles v. N. 7. Central R. R. Go., 176 N. Y. 119. In the absence of statutory authority, a railroad company cannot sell or lease its franchise. —27 Amer. & Eng. Enc. of Law, pp. 270, 780, and notes; Gentral Transp. Go. v. Pullman Palace Gar Go., 139 U. S'. 29; Branch v. Jessup, 106 U. S. 468; Thomas v. W. Jersey R. Co., 101 U. S. 71; McIntosh v. Flint, etc., Go., 34 Fed. Rep. 582; Hamilton v. Savaomah, etc., R. Go., 49 Fed. Rep. 412; Stevens v. R. & B. R. R. Go., 29 Yt. 545. S'ale or transfer of franchise, without statutory authority, authorizes dissolution of company.- — 23 Amer. & Eng. Enc. p. 684.</p> <p>The majority of the stockholders in a railroad corporation cannot, against the objection of the minority, divert the company’s property from the purpose of its creation. One corporation cannot absorb another by purchasing its stock. — Hi-rschel on Comb. Consol., Etc., of Corps., pp. 26, 40; McIntosh v. Flint & P. Go., 34 Fed. Rep. 582; Black v. Delaware & Raritan Carnal Go., 24 N. J. Eq. 455. The consolidation of two companies, or -the purchase of one company by another is invalid, unless there is unanimous consent of all of the stockholders, although there may be legislative authority. A single stockholder can, by injunction, prevent its consummation. Neither the other stockholders or the legislature have the power to change the contract under which he became a member or to- compel him to falte stock in another company or to part with his stock. — Hirschel on Comb., Consol, & Sue. of Corps, pp. 331, 339, 340, 341. The surrender of the property and the functions of a corporation in order that, while it is still to continue in existence, its business is to be carried on by another corporation, to which such transfer is made, would violate the rights of a non-assenting stockholder arising from the contract, implied if not expressed, in the creation of such corporation. — Hirschel C., O. & S. of Corps., pp. 841, 342; Morawitz on Corps., Secs. 413, 416; Stewart v. Transp. Co., 17 Minn. 372, 398; C'ooh on Stock, etc., Secs. 667, 668; Bloch v. Oanal Oo., 24 N. J. Eq. 456; Zdbrislde v. B. B. Oo., 24 N. J. Eq. 178; Abbot v. Rubber Co., 33 Barb. 578; MicMleseoc B. Oo. v. Boston & O. B. Oo., 115 Mass. 347. Minority can prevent control over their company by rival company owning a majority of former’s stock. — -Hirschel O., C. & S-. of Corps., p. 342 and notes; M. & O. B. B. Oo. v. Wood, 88 Ala. 630. The proposed sale if not authorized by an act of the legislature is ultra vires, and wonld be void. — Elyton Land Co-, v. Dowdell, 113 Ala. 177; Morris v. Elyton Land Oo., 125 Ala. 263, 276. The charter of the South & North Alabama Railroad Co. is a contract between the state, the corporation and the shareholders, and its obligations cannot be impaired.- — Dartmouth College Case, 4 Wheat. 700; Penn College Oases, 13 Wall. 212; 6 Amer. & Eng. Enc. Law, 805. The charter of the S'outh & North Alabama Railroad Company was granted in 1854 .and there has been no amendment accepted by the company since 1875. Hence Section 1 of Art. XIV of the Constitution of 1875, now section 238 of the Constitution of 1901 and Sec. 22 of Const, of 1901 are not applicable.</p> <p>An act which a corporation cannot itself do in the first instance, can not itself be validated by its subsequent ratification. — 4 Thonxp. on Corp-., Sec. 5277-9; Id. Sec. 5968; Seiner v. Steiner Land Oo., 120 Ala. 128, 139. The purchase or acquisition of the stock in the South & North Alabama Railroad Co. by the Louisville & Nashville Railroad Co. was unauthorized by law, and is therefore invalid. — See Code of 1876, Sec. 301; Code of 1886, Sec. 1886; Code of 1896, 1170.</p>

Arpead from Shelby Chancery Court. Heard before Hon. W. W. Whiteside. Bill by S. Z. T. Champion to abate a continuing nuisance and to recover actual damages for the overflow of his lands on account of an embankment maintained by the Central of Georgia Railway Company. From a decree for complainant respondent appeals. Counsel discuss the assignments of error, and insist that the chancery court ■erred in granting the relief sought, hut without citation ■of authority.

Heard before Hdn. W.'H. Simpson. Bill by R. B. White as administrator of the estate of C. C. Sheets, against W. R. Francis, and others, to redeem lands of his decedent, sold at judicial sale. From a judgment for complainant respondents appeal. The redemption must be entire. — Lehman-Durr & Co. v. Moore, 93 Ala. 189; Harden v. Collins, 138 Ala. 404; Richardson v. Dunn, 79 Ala. 170; Secs. 5746, et seq., Code 1907.

Heard before Hon. A. H. Benners. Bill by D. F-. Allen against Della W. Enslen and her husband to compel specific performance of a contract, and for an accounting. From a decree overruling demurrers to the bill, respondents appeal.

Heard before Hon. W. H. Simpson. Bill by Inez Reagin against J. P. Webb, to cancel a conveyance made during minority.

Heard before Hon. A. H. Benners. ' Bill by R. H. Cochran and others against S. A. M. Purser, to restrain her from excavating, obstructing, building on or otherwise interfering with a certain alley, and upon reference to ascertain what damage has been done complainant, by the excavation and cutting away already accomplished. ' Judgment for - respondent and complainant appeals. See also in this connection, the former report of this case, in 152 Ala. 354; 44 South. 579.

Heard before Hon. W. H. Simpson. Bill by W. H. Hagan against the Court of County Commissioners of Limestone County, and others, to enjoin the assessment of a tax, and the issuance of the county warrants based thereon, and for other relief. A temporary injunction was issued, and upon application it was dissolved, from which decree complainant appeals.

Heard before Hon. A. H. Benners. W. H. McAfee as assignee of the McAfee Company was administering the trust estate in the chancery court of Jefferson County, for the benefit of the creditors of the company, and the B. F. Roden Grocery Company,, filed its petition and agreement claiming a lien and priority of payment. The chancellor declined to enter a decree declaring a lien and priority of payment, and the petitioner appeals.

<p> Bill to Enjoin the Issuance and Sale of City Bonds. </p> <p>Municipal Corporations; Bond Election; Time Beld. — Where in July, 1908, a city held an election for the purpose of voting an issue of bonds for school purposes, and for construction of sewerage, and in February, 1909, held an election for a bond issue for school purposes, and for the extension of sewerage, the latter election was void under the provisions of section 1421, Code 1907; the intént of the statute being that no election for bond issue shall be held within two years after an election for bond issue for the same general purposes.</p>

Appear from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Bill by Daisy I. Olisby against A. A. Clisby, for alimony, not connected with divorce proceedings. From a decree for complainant granting insufficient relief, she appeals. The court should have allowed the complainant counsel fees. — Hardmig v. Harding, 180 111. 592.

Heard before Hon. Thomas H. Smith. Bill by Sue WMsenant and others against C. L. Hybart and others .to redeem lands sold under, mortgage .foreclosure, under mortgage made to a firm. From a judgment sustaining demurrers to the bill complainant appeals. The complainants filed a bill as the heirs at law of H. L. Whisenant, deceased, who, it is alleged, executed a mortgage on certain lands to H. H. Hybart & Co., a firm composed of H. H. Hybart and N. G. Davis.

Heard before Hon. A. D. Sayre. Action by Aileen Asbley by her next friend against the Central of Georgia Bailway Company, for damages suffered while a passenger on said road. From a judgment for plaintiff defendant appeals. Counsel discuss the demurrer to the complaint and cite authorities in support of their contention. They insist that counts 5 and 7 did not state a cause of action, and cite in support thereof.— Southern By. Go. v. Bunt, 131 Ala. 591; Central of Ga-By.

Heard before Hon John Pelham. Action by Delia Seale a passenger against the Louisville & Nashville Railroad Company for damages for being carried beyond destination. From a judgment for plaintiff, defendant appeals.

Gadsden City Court. Heard before Hon. John H. Disque. Action for damages by Willie Thompson against the Nashville, Chattanooga & St. Louis Railway, for injuries received in a collision. Judgment for defendant and plaintiff appeals. The relation of passenger and carrier existed. — Homes v. Bir. South. Ry. Go., 140 Ala. 208; Miller v. Mo. Pac. Ry. Go., 10 L. R. A. 26; 95 N. Y. 562; 44 Cal. 71; 6 S. C.*130; Broslin v. E. O. M. & B. R. R. Go., 114 Ala. 398.

Heard before Hon. Charles A. Senn. Action by John S. Grandy against the Tennessee Goal,. Iron & Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are sufficiently stated in the opinion of the court.

Heard before Hon. J. W. Mabry. Action by O. M. Hart and another against the Western Kailway of Alabama. From a judgment for plaintiffs, defendant appeals.

Heard before Hon. John H. Disque. Action by Susy Brady against the Alabama City G. & A. R. R. C'o., for damages for delay in delivering tbe corpse of her husband. The fact that the A. G. S. Railroad had authority to sell passenger tickets-does not warrant the conclusion that it had authority to sell corpse tickets. — Wallace Tobacco Co. v. Jackson, 99 Ala. 260.

Heard before Hon. A. O. Lane. Action by Louis Saks against the Southern Express Company for damages for the loss of goods delivered in New York to' the Adam's Express, Company, and consigned to plaintiff in Birmingham, by way of the Southern Express Company as a connecting carrier. Judgment for plaintiff and defendant appeals. We think it clear under all the evidence that no, partnership is shown to have existed between the two companies.

Heard before Hon. William Jackson. Action by J. M. McCleskey against the Alabama Great Southern Railway Company for loss of goods and damage to goods while being shipped over its lines.

Heard before Hon. Charles A. Senn. Action by J. F. Baldwin against Rosella K. Brent for damages to building and stock of goods therein caused by a collapse of defendant’s building on an adjoining lot. Judgment for plaintiff and defendant appeals. The trial was had on three counts of the complaint; the second, the third, and the fifth as amended.

Heard before Hon. A. .0. Lane. Action by D. G. Woolf against R. D. Smith, brought under section 2917, Code 1896. Judgment for plaintiff and defendant appeals. The pleading and the facts sufficiently appear in the opinion of the court and in a former report of this case (Wolff V: Smith, 149 Ala. 457, 42 South. 824, 9 L. R. A. (N. S.) 888), to- which reference is here made.

Heard before Hon. Thomas W. Coleman, Jb. Action by O. J. Wood against the Atlanta & Birmingham Air Line Railway, for damages caused by filling up a pond in the construction of an embankment. Judgment for plaintiff and defendant appeals.

<p>Appeal from Jefferson Criminal Court.</p> <p>Heai’d before Hon. A. C. Howze.</p>

<p> Violating Gity Ordinance. </p>

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