Volume 161 — Alabama Reports

Heard before Hon. H. A. Pearce. Frank Fowler was convicted of murder in the second degree, and appeals.

Heard before Hon. T. L. Sowell. Rich Bluitt was convicted of manslaughter, and he appeals. The following charges were refused to the defendant: “(4) I charge you, gentlemen of the jury, that you cannot convict the defendant unless yon believe from the evidence that the defendant' shot the deceased unlaAVfully and with malice.

<p> Murder. </p> <p>1. Homicide; Evidence. — The theory of the state being that the defendant lay in wait for the deceased on the roadside, and killed him with a shotgun, and it appearing that the defendant had been at the village of O. where the deceased was shortly before the killing, it was competent to show that there was a cut-off or path from the village to the road which deceased was traveling when killed, and that the defendant had, on occasions before, used the path, and that it was generally used by the people, as having a tendency to show that accused anticipated deceased’s presence on the road, and took the nearer way to arrive at the place of killing, ahead of deceased.</p> <p>2. Same; Motive and Intention. — Where there was evidence tending to show that the deceased had been a witness against the defendant in a larceny ease; and that defendant had made threatening allusions to that fact, among them being that decedent would never appear against him, some of which statements were made about a year before the homicide, these facts, together with the indictment against the accused in the larceny case, and the records showing a continuance of the prosecution therein, were admissible as tending to show motive; it was not competent, however, to go into the inquiry of the merits of the larceny case.</p> <p>3. Same; Instructions; Self Defense. — A charge asserting that it is immaterial whether the deceased had a weapon, but that, if he made a demonstration, such as to lead the defendant to believe that he was about to draw a pistol, defendant had a right to fire his gun first and kill the deceased without waiting to see whether deceased had a weapon, failed to hypothesize the defendant’s freedom from fault in provoking the difficulty, and was properly refused.</p> <p>4. Same. — A charge asserting that if the accused did not provoke the difficulty, but approached the deceased in a peaceful manner, and deceased replied angrily, and advanced insultingly towards the defendant, and placed his hand near his pistol pocket so as to indicate to a reasonable mind that his purpose was to draw, defendant could anticipate him and fire first, omitted to hypothesize that the acts of accused was the expression of an honest belief on his part of the necessity to shoot when he did.</p> <p>5. Same. — In order to justify a homicide on the ground of self defense, the burden is upon the defendant to show that there was a pending present danger, real or apparent to life or limb, or of grievous bodily harm, from which there was no other reasonable means of escape, unless the evidence which proves the homicide tends also to show the excuse or justification.</p> <p>6. Same; Evidence; Malice; Use of Deadly Weapon. — Unless tlie evidence which proves the killing tends also to show that it was perpetrated without malice, the law presumes malice in the use of a deadly weapon, and easts on the defendant the burden of repelling the presumption where the charge is murder.</p> <p>7. Appeal and Error; Harmless Error; Objections to Evidence.— Where it does not appear that a question was answered and assuming that it sought inadmissible testimony, it was harmless error to overrule objection to the question.</p> <p>8. Same; .Admission- of Evidence. — Where it appears from the bill of exceptions that the accused offered a number of witnesses, to-wit, Doc Hembree, and ten others named, whose testimony tended to show that the deceased was a man of bad character, etc., and that on cross examination the solicitor asked “witness” if deceased was not a good neighbor and kind-hearted man, that accused’s objection was overruled, and that some of the witnesses answered yes, and some answered no, it did not appear from the record that the defendant was prejudiced by the overruling of his objection, since the witness might have been one of those who answered in the negative.</p> <p>9. Charge of Court; Singling Out Evidence. — Charges asserting that the jury has a right to look to the character of the wound upon decedent-body in determining whether the defendant is corroborated as to his position when he fired the shot that killed deceased; that if any witness was corroborated, it should be looked to as strengthening the evidence of such witness, single out features of the evidence and were properly refused.</p> <p>10. Same; Argumentative Instructions. — Argumentative charges are always properly refused, such as charges 6 and 8 in this case.</p> <p>11. Evidence; Interest of Accused. — The interest that a defendant has in the result of a verdict may be considered by the jury in determining the weight they will give to the evidence.</p> <p>12. Same; Reasonable Doubt. — A, doubt to authorize an acquittal must be real and substantial; it is not every doubt that authorizes an acquittal.</p>

<p>Appeal from Marshall Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>W. L. Noel was convicted of murder, and he appeals.</p> <p>The right to a special venire cannot be waived in any manner other than that provided by the statute. — Sec. 7264, Code 1907; Bankhead v. The State, 124 Ala. 14; The defendant need not have been in court when the special venire was drawn as'that was not the time for him to complain at anything that might be done violating his lights in the premises. — Hurd v. The State, 116 440; Washington v. The State, 81 Ala. 35. Defendanb could not Avaive his right to a full and complete jury in accordance with law and the order of the court except in the way provided by the statute. — Bankhead v. The State, supra; Roberts v. The State, 126 Ala. 74. The name of W. P. Roberts appearing on both the reguLar and special venire was grounds for quashing. — Darby v. The State, 92 Ala. 9; McQueen v. The State, 94 Ala. 50; Caddeil v. The State, 129 Ala. 63. The defendant has a right to have the list before being called upon to quash or to consent thereto, or to waive it. — 1 Bish. Crim. Proc. sec. 944. The motion to quash came in time.— Peters v. The State, 100 Ala. 10; Howard v. The State, 108 Ala. 571; Porter v. The State, 146 Ala. 36. Discrepancies appearing in the name of several of the jurors, the court should have discarded them and summoned other jurors from the qualified citizens of the county. — Sec. 7267, Code 1907; Mertin v. The State, 144 Ala. 8; Hammond v. The State, 147 Ala. 79. These discrepancies constituted mistakes in names. — Stewart v. The State, 137 Ala. 33; Martin v. The State, supra; Coleman v. The State, 145 Ala. 13; Cowley v. The State, 133 Ala. 128; Collins v. The State, 137 Ala. 50. The question to the witness Bartlett as to his not testifying before the coroner’s jury should have been permitted. — Moore on Pacts, pp. 1196. Sparks was not an expert, and should not have been allowed to testify as to the. shots, and the appearance of the shell. As the defendant was under no duty to tell anybody why he was on the east side of the street, the state should not have been" permitted to ask him, if he ever told anybody. — 3 Ency of Evi. 846; Rogers v. The State, 71 S. W. 18.</p>

Heard before Hon. I). W. Speake. Will Gaston was convicted of murder in the second degree, and he appeals. The indictment charges the killing of Matthew Graves by shooting him with a gun.

Heard before Hon. W. W. Haralson. George W. Lowman was convicted of homicide and he appeals. The rule is that the consanguinei of the wife are the affines of the husband, but the affines of the wife are not the affines of the husband. — 2 Stephens Com. 285; 1 A. & E. Ency of Law, 911; Kirby v. The State, 89 Ala. 63. This being true, the juror was improperly challenged by the State.

<p>Appeal from Anniston City Court.</p> <p>Heard before Hon. T. W. Coleman, Jr.</p> <p>John Williams was convicted of murder in tbe second degree, and be appeals.</p> <p>Tbe facts made by tbe evidence are, substantially, that some two or three bonrs before tbe killing, tbe defendant. went to tbe borne of tbe deceased, and in bis absence bad an altercation with deceased’s wife about a matter pertaining to defendant’s wife, in wbicb certain threats were used by defendant as to deceased’s wife and all her family. Later on in tbe same day deceased, with bis wife and stepson,-came to tbe dwelling of defendant, and found defendant in bis yard, where another altercation followed, in wbicb deceased seems to have been tbe aggressor. Some of tbe evidence tended to show that deceased bad bis right band in bis pocket and in this manner advanced upon defendant, who was standing in tbe yard with one foot on the doorstep, whereupon defendant backed away several feet and fired three shots, when the two engaged in a hand to hand struggle, in which defendant was thrown to the ground, but recovered and got away from deceased, whereupon the defendant put his hand on deceased’s collar and fired the fourth shot into his breast.</p> <p>The following charges were refused to the defendant: (41) Before the .jury can convict the defendant, they must be satisfied to a' moral certainty, not only that the proof is consistent with the defendant’s guilt, but that it is wholly inconsistent with every other rational conclusion; and unless the jury are so convinced by the evidence of the defendant’s guilt that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then they must find the defendant not guilty.” “(75) The only foundation for a verdict of guilty in this case is that the entire jury shall believe from the evidence beyond a reasonable doubt and to a moral certainty that the defendant is guilty as charged in the indictment, and to the exclusion of every probability of his innocence and every reasonable doubt of his guilt, and if the prosecution has failed to furnish such measure of proof, and to so impress the minds of the jury of his guilt, they should find him not guilty.”</p> <p>“(49) Unless the jury are convinced beyond all reasonable doubt that the killing was done with malice, and not the result of passion suddenly aroused, then they •should acquit the defendant of murder.”</p> <p>“(20) If the jury have a reasonable doubt as to whether the killing was the result of malice, or the result of suddenly aroused passion, produced by sufficient provocation, then they should give defendant the benefit of such doubt, and not find him guilty of murder in any degree.</p> <p>“(21) If the jury have a reasonable doubt, as to whether the killing was a result of premeditation and deliberation or the result of sudden passion suddenly aroused by great provocation, then they should give the defendant the benefit of such doubt, and acquit him of murder in the first degree.”</p> <p>“(71) If the jury believe from the evidence that the defendant, without fault on his part, was being attacked by Charlie Williams, and the attack was such as to create in the mind of a nesonable man the impression that it was necessary for him to shoot in defense of his own life, then you should acquit the defendant.</p> <p>“(72) If the defendant was free from fault in bringing on the difficulty, and the deceased was making an attack on him in the night-time, and the attack was such as to create in the mind of a reasonable man the impression that it was necessary for him to shoot in order to save his own life, then you should find the defendant not guilty.”</p> <p>“(19) I charge you, gentlemen of the jury, that if you believe from the evidence that at the time the fatal shot was fired the defendant acted under the honest belief that he was in danger of his life or limb at the hands of deceased, then you should acquit him, provided he was free from fault in bringing on the difficulty.”'</p> <p>“(11) I charge you that the defendant was under no -duty to retreat in this case, and if he was free from fault in bringing on the difficulty, and was attacked in the night-time by the deceased, and the attack was such as to créate in the mind of a reasonable man the impression that it was necessary for him to shoot his assailant in order to save his ovni life, then he had a right to anticipate the deceased and fire first, and you should -acquit him.”</p> <p>“(53) The court charges the jury that if they believe the evidence in this case it will be their duty to find that the defendant was under no duty to retreat.”</p> <p>“(31) The court charges the jury that the defendant was under no: duty to retreat in this case, and if he was free from fault in bringing on the difficulty he had a right to shoot Charlie Williams in defense of himself, if the circumstances were such as to impress the mind of a reasonable man that he was in great danger of life.”</p> <p>“(30) The court charges the jury that under the lav/ of this country the defendant had a right to carry a pistol in defense of himself.”</p> <p>Counsel discuss assignments of error as to evidence, but without citation of authority. Charge 8 should have been given. — Gilmore v. The State, 99 Ala. 154; Sherrill v. The State, 138 Ala. 3; Bones v. The State, 117 Ala. 138. Charge 31 should have been given. — Brown v. The State, 118 Ala. 114. On the same authority charge 75 should have been given. Charge 49 should have been given. — Martin v. The State, 119 Ala. 1; Prior v. The State, 77 Ala. 56. The appellant was under no duty to retreat in this case. Charges 5 and 6 should have been given. — Sherrill v. The State, supra; Bone v. The State, supra.</p>

<p> Assault with Intent to Murder. </p> <p>1. Trial; Objection to Testimony; Time. — Where it does not appear that there was not opportunity to object before the question was answered 'an objection not interposed to the questions came too late after the questions had been answered.</p> <p>2. Homicide; Assault With Intent; Evidence. — The mechanism of the assault, and the fierceness of the attack if within the res gestae of the transaction, and the nature and extent of the wound inflicted are admissible as affording reasonable inferences as to such matter, and as shedding light on the intent of the defendant. For like reasons, evidence that shortly after the shooting there was blood on the ground and blood and particles of flesh spattered upon the fence and shot marks on the gate post, within three or four feet of the assahlted person when shot, was admissible.</p> <p>3. Same. — It is not permissable, in a case of assault with intent to murder to show by the attending physician that he had taken the' assaulted person to another city for treatment; such testimony tending to excite sympathy and likely to be over estimated to the prejudice of the defendant.</p> <p>4. Same. — The fact that the defendant had settled an account with F. since the shooting was properly excluded, since that fact did not tend to show the state of defendant’s mind previous to the shooting.</p> <p>5. Witnesses; Gross Examination; Accused. — Good practice requires that a witness should be asked the state of his feelings in order to show bias before inquiring into the matters causing such feelings; but where it appears that the difficulty had its origin in a difference between the defendant and a son-in-law of the assaulted person, and that they were farming on shares, and that it arose over the ownership of cotton raised by them, and the account betwen them and that the cotton was stored in the lot of the son-in-law at which point the shooting occurred, it was permissible for the state to ask the accused on cross examination how much he owed the son-in-law for advances to make the crop, as tending to shed light on his feelings.</p> <p>6. Charges of Court; Applicability to Case. — Where the tendencies of the evidence supported the state’s theory that the defendant had gone to the place of the shooting armed with a gun for the purpose of removing certain cotton about the title of which there was a dispute between defendant and the son-in-law of the person assaulted, and that the defendant intended “to take it away at any event and was opposed by the person assaulted, a charge asserting that a man has a right to arm himself for his own protection, though abstractly correct, was properly refused as inapplicable. For like reasons, charges asserting that if the defendant and the son-in-law were tenants in common of the crop, accused had a right to move the cotton, and that accused had such an interest in the cotton, that he had a right to move it as against an outsider, and that if accused was attempting to move his own cotton, or if he had an interest in it at the time of the shooting, and the person assaulted had no interest in it, accused had a right to move it, were properly refused.</p> <p>7. Same. — Where there was no evidence that the lot was either the defendant’s ijlace of business or within the curtilage of his dwelling, charges asserting his right to go there, or that he was under no duty to retreat from the place, were abstract.</p> <p>8. Same; Reasonable Doubt. — Charge asserting that good character taken together with the other evidence in the ease is sufficient to generate a reasonable doubt, and that proof of good character may generate a reasonable doubt of guilt are properly refused as requiring an acquittal on proof of good character.</p> <p>9. Same; ignoring Evidence. — Charges framed upon the idea that the accused had a right to go into a certain lot for the purpose of enforcing his claim to the cotton stored there, or that he was under no duty to retreat because the lot was either his place of business or within the curtilage of his dwelling, are properly refused, where his right to go into the lot depended upon the manner of its exercise which phaze of the evidence the charges ignored.</p>

Heard before Hon. Thomas W. Coleman, Jr. Jim Hill was convicted of maliciously shooting into a railroad car in which were human beings, and he appeals.

Heard before Hon. D. W. Speake. Alvin Peinhardt was convicted of arson, and appeals. The indictment was as follows, omitting the formal parts: “Alvin Peinhardt willfully set fire to or burned a storehouse of Max Schmidt, which said storehouse adjoined the dwelling house of A1 Richter, and at the time of the said setting fire to or burning said storehouse there was a human being in the dwelling house of A1 Richter, which was adjoining said storehouse.

Heard before Hon. I. B. Slaughter. Ivey Mosely was convicted of playing at a game of cards, etc., in his own home, at a public place, and he appeals. Under the facts in this case, the defendant should have been discharged.— Franklin v. The State, 91 Ala. 23; Lee v. The State, 136 Ala.

Heard before Hon. W. H. Thomas. Alonzo Bailey was convicted of obtaining money under a contract in writing with the intent to injure or defraud his employer, and he appeals. In whatever language a statute may be framed its purpose must be judged by its natural and reasonable effect.' — Henderson v. Hew- York, 92 U. S. 259; Fong v. Ü. 8., 149 U. S. 729, cited in Thomas v. The State, 144 Ala. 77, did not authorize the creation of a prima facie rule of evidence.

Heard before Hon. Thomas W. Coleman, Jr. Tom Yernon was convicted of purchasing liquor in violation of law, and appeals. Under the evidence in this case the affirmative charge should have been given. — Maxwell v. The State, 120 Ala. 375; Sec. 7363, Code 1907. The interstate feature of the transaction ceased when the contents were removed from the package.— Keith v. The State, 91 Ala. 2; Tinker v. The State, 90 Ala. 639.

Heard before Hon. A. O. Howze. Mrs. Piano was convicted of receiving stolen property and she appeals. The facts are sufficiently stated in the opinion, as are the exceptions and objections to testimony.

Heard before Hon. S. L. Brewer. John Smith was convicted of retailing spirituous, vinous or malt liquors without license and contrary to law, and he appeals. The contents of charges 1, 2, and 4 are sufficiently stated in the opinion of the court.

Heard before Hon. D. W. Speake. Action by Scruggs & Echols against the Louisville & Nashville Railroad Company, for damages resulting from the burning of a building alleged to have been caused from the fact that one of the company’s freight trains was stopped in such a position that.the fire department could not get water from a hydrant to the building. Judgment- for plaintiff and defendant appeals.

Heard, before Hou. J. C. Richardson. Action by W. K. Horton against the Louisville & Nashville Railroad Company for the destruction of cotton by fire set by a locomotive. Prom a judgment for defendant, plaintiff appeals. The objections to evidence are sufficiently stated in the opinion of the court.

Heard before Hon. A. H. Alston. Action by John Rowland against George Rutledge and others for assault and battery. Prom a judgment for plaintiff, defendants appeal. The facts and the exceptions to evidence are sufficiently stated in the opinion of the court.

Heard before Hon. Charles A. Senn. Action by William E. McMillion against the Tennessee Coal, Iron & Railroad Company. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion.

Heard before Hon. Charles A. Senn. Action by J. A. Baker against the Birmingham Railway, Light & Power Company, for injuries to his minor child. Judgment for plaintiff and defendant appeals. The court erred in overruling defendant’s motion for a new trial, for the reason that no damages were claimed in the complaint for waiting on the child himself, and consequent loss of time. — Southern Ry. Co. v. Crowder, 135 Ala. 417.

Heard before Hon. W. W. Haralson. Action by R. H. Bynum against A. A. Gay, for trover, trespass, and conversion. Prom a judgment for defendant, plaintiff appeals. The facts are sufficiently stated in the opinion.

Heard before Hon. Samuel B. Brown. Action by Charles C. Dickens against the Southern Bailway Company for damages for setting out fire. Judgment for plaintiff. and defendant appeals.

Heard before Hon. D. W. Speaice. Death action by Lizzie C. Morton, administratrix, against the Sheffield Company. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion of the court. There were a number of counts in the complaint, all of which were eliminated except counts 3 and 5.

Heard before Hon. J. C. Richardson. Action by Henry McMillan against Vastine J. Hurlong, doing business as the Manistee Mill Company, for damages for the destruction of certain wood belonging to the plaintiff, alleged to have been caused by fire set out from sparks emitted from a locomotive engine being operated by the defendant. Judgment for defendant, and plaintiff appeals.

Heard before Hon. William Jackson. Action by O. S. Early against M. C. Fitzpatrick and others, for damages for imprisonment growing out of a punishment for contempt proceedings. Judgment for defendant and plaintiff appeals. The complaint charges an abuse of the defendant’s authority of office, a pretended, .not a real exercise of his jurisdiction, and for which he is liable. — Kelly v.: Moore, 51 Ala. 3G4; McElhaney v. Gilliland, 30 Ala. 186; Mason v. Crabtree, 17 Ala. 479.

Heard before Hon. William Jackson. Action for personal injuries by M. A. Lipscomb against the City of Bessemer. From a judgment for defendant, plaintiff appeals.

Morgan Circuit Court. Heard before Hon. D. W. Speaks. Action by James A. Foster against the Decatur Waterworks Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. Samuel B. Browne. Action by Clarence B. Ferdon against Charles C. Dickens, for damages for publishing a libelous letter. Judgment for defendant and plaintiff appeals. The letter was libelous per se. — Iron Age Pub. Go. v. Oruclup, 85 Ala. 519; 98 Fed. 222; 12 Fed. 581,; 25 Cyc. 250, et seq. The publication was sufficient. — Ivey v. Pioneer S. & L. Go., 113 Ala. 530; 1 A. & E. Ann.

<p>■ Appeal from Jackson Circuit- Court.</p> <p>Heard- before Hon.- W. W. Haralson.</p> <p>Action by Lizzie Jacobs against L. R. Roach for damages for trespass to land by entering and cutting timber therefrom. Judgment for defendant and plaintiff appeals.</p> <p>Reservations are construed against the grantee when ambiguous or doubtful. —8 Words & Phrases, 7228; Clark v. Way, 11 Rich'Law, 621; Strauss v. Sheriff, 9 South. 102; 13 Cyc. 676; 9 Dev. on Deeds, 979.</p>

Heard before Hon John H. Disque. Action by B. T. Collier against T. L. Johnson and the sheriff and his official bond, in trespass for selling exempt property. From a judgment for plaintiff, defendants appeal. The facts in the case are that T. L. Johnson, who has since died, recovered of B. T. Collier a sum of money lost on a wager, under a complaint for money had and received and a special’count for money received on a bet or wager.

<p>Appeal from Cleburne Circuit Court.</p> <p>Heard before Hon. John Pelham.</p> <p>Action by J. L. Howard against the Western Union Telegraph Company for failure to deliver a telegram. Judgment for defendant, and plaintiff appeals.</p> <p>The complaint alleges that William H. Howard, a brother of plaintiff, living at Rock Springs, Ala., delivered a message for and on behalf of the sendee at Rock Springs, to be transmitted to plaintiff at Edwardsville. The testimony of William Howard was that he resided at Rock Springs, Ala., and on the 19th day of October, 1907, he delivered a message to the agent of the Western Union Telegraph Company at Rock Springs, to be delivered to J. L. Howard at Edwardsville, Ala., stating that if he desired to see his mother alive again he had better come at once. The witness testified to an understanding with his brother, the sendee of the message, that should anything happen to his father or mother he was to send the message; that this agreement was made six years ago, while witness was living at Legard, Ala.; and he further testified that he would have sent the message without regard to- this agreement. It is further shown that this agreement was made at Legard at the time their mother was sick about six years ago, at which time the sendee is alleged to have told his brother that if the mother got worse, or if any of them got sick, or if anything got the matter, for him to send sendee a telegram, and that this was all the agreement they had about sending, messages.</p> <p>The court erred in giving the affirmative charge for the defendant.— W. Ü. T. Go. v. Prevatt, 43 South. 106. Having been deceived by the defendant’s agent, plaintiff was not bound by the endorsement made on the back of the telegram by the agent. — Powell v. Prudential, 45 South. 208; Leonard v. Roebuck, 44 South. 390.</p> <p>The defendant wag entitled to the affirmative charge upon three distinct propositions: 1st, the complaint did not state a canse of action. 2nd, the agency of William Howard is not sufficiently established. 3rd, if the agency was established, plaintiff was bound by the stipulations on the back of the message. As to the last proposition, counsel cite. — W. U. T. Go. v. Kirchbaum, 132 Ala. 535; Samé v. Blocker, 138 Ala. 484; same v. Waters, 139 Ala. 653. If this be true, the affirmative charge was properly given. — Liman v. Jones, 134 Ala. 570; Scawbrough v. Rowan, 125 Ala. 509. As to the 2nd proposition they cite. — W. U. Tel. Go. v. Heathcoat, 149 Ala. 623; same v. Adams, 46 South. 228; same v. Prevatt, 149 Ala. 617. On the 3rd proposition, they cite. — W. U. T. 'Go. v. Prevatt, supra; same v. Edsall, 63 Tex. 668; White v. Western Union, 14 Fed. 720; Burroughs v. Pac. Guano Go., 81 Ala. 258; Goetter-Weil & Go. v. Pickett, 61 Ala. 387; Gampbell v. Larmore, 84 Ala. 500; Bank v. Webb, 108 Ala. 137.</p>

<p>Appeal from Anniston City Court.</p> <p>Heard before Hon. Thomas W. Coleman, Jr.</p> <p>Action by the Anniston Cordage Company against the Western Union Telegraph Company for error in the transmission of a message addressed to it. Judgment for defendant and plaintiff appeals.</p> <p>The addressee can sue in tort for the erroneous transmission of a message sent for the benefit of the addressee. — W. TJ. Tel. Go. v. DuBois, 15 Am. St. Rep. 109; Hayes v. W. TJ. Tel. Go., 106 Amer. St. Rep. 781; Turner v. Ha/wkeye Tel. Go., 20 Am. Rep. 605 ; N. 7. Tel. Go. v. Dryburg, 78 Am. Dec. 338. As to the measure of damages in a case of this character, counsel cite the following. — W. TJ. T. Go. v. Ghamblee, 122 Ala. 428; same v. Grawford, 101 Ala. 461; sarnie v. Flint River L. Go., 88 Am. St. Rep. 36: Gowam v. W. TJ. Tel. Go., 101 Am. St. Rep. 268; Armstrong v. R. R. Go., 123 Ala. 233.</p> <p>To entitle a sendee to recover damages for erroneous transmission, it must appear from the complaint that the sendee either directly or per alium was a party to the contract. — W. U. Tel. Co. v. Adair, 115 Ala. 441; same v. Henderson, 89 Ala. 510; same v. Wilson, 93 Ala. 32; same v. Cunningham. 99 Ala. 314; Postal Tel. Co. v. Ford, 124 Ala. 401; s. c. 117 Ala. 672; Dahightery v. Am. U. Tel. Co., 75 Ala. 168; Kinnon & Bro. v. W. U. T. Co., 92 Ala. 299. This rule is applicable to actions ex delicto as well as actions ex contractu. — W. U. T. Co. v. Kirclibaum, 132 Ala. 535; 4 Mayf. 932. The damages sought were not recoverable in this instance because the telegram did not indicate that it was for the benefit of the sendee, but depended upon a collateral contract not shown to have been communicated to the defendant at the time the message was delivered for transmission. — See authorities cited supra, and Reid L. Co. v. Lewis, 94 Ala. 626; Dean Pwnpworks v. Astoria I. Works, 40 Ore. 83; Swift v. Warehouse Co., 86 Ala. 294; Lehman-Du-rr Co. v. Pritchett, 84 Ala. 512; Ala. Ghern. Co-, v. Ceiss, 143 Ala. 591; Woodstock I. Works v. Stockdale, 143 Ala. 550; 113 Ala. Ia. 177.</p>

Heard before Hon. W. W. Haralson. Action by J. F. Emerson against the Western Union Telegraph Company for failure to promptly transmit and deliver a message. From a judgment for plaintiff, defendant appeals. The only counts necessary to be set out are counts 1 and 4.

Heard before Hon. Samuel B. Browne. Action by William H. Louisell against the Western Union Telegraph Company, for negligence in the transmission of a message. Judgment for plaintiff and defendant appeals. The amendment so called is no part of the record. It was never allowed by the court. — Sec. 3331, Code 1896; Andrews-Stephens’s Pleading, sec. 114, and note 33, p. 530; 7 Bush. 474; 88 Ind. 223. The demurrer should have been sustained to the complaint.

Court. Heard before Hon. H. A. Sharpe. Action by R. C.- Griffith against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. The charges referred to in the opinion as refused to the defendant are as follows: “ (1) You are not authorized to-assume .conclusively from .the relation of the parties that plaintiff suffered mental pain and anguish by reason of Whaley’s absence for the part of September 30th.

A. O. Lane. Action by Meivie Parker against the Birmingham Railway, Light & Power Company, for damages for an assault' committed ' on her'' by one of its conductors. Judgment for plaintiff: and defendant appeals. Count 3 does not charge a wanton assault. — Bir.

Heard before Hon. John Pelham. Action by Stevenson & Herzfeld, a partnership, against M. H. Whatley and M. A. Mayo for the conversion by them of four mules. Judgment for defendants, and plaintiffs appeal.

Heard before Hon. A. A. Coleman. Action by Mrs. M. E. Cbestnntt against, the city of Birmingham for damages for negligence in the construction, maintenance and repair of a sanitary sewer resulting in injury to the plaintiff. Judgment for plaintiff and defendant appeals. Counsel discuss the pleading and cites authority in support of his contention, but it is not deemed necessary to.here set it out.

Heard before Hon. B. M. Miller. Action by E. D. Suell as administrator against Fred Derrieott and others for causing the death of his intestate. Judgment for defendants and plaintiff appeals. The court erred in overruling the demurrers to the 9th special plea.- — Oliver v. The State, 17 Ala. 587; Dill v. The State, 25 Ala. 15; Morton v. Bradley, 30 Ala. 683; Williams v. The State, 44 Ala. 41; Clements v. The State, 50 Aia. 117; 2 A. & E. Ency of Law, 848.

Heard before Hon. A. H. Alston. Action by G. B. Mitchell against the S'loss-Sheffield Steel & Iron Company for damages for causing overflow of lands by obstruction in the natural flotv of a stream. Judgment for plaintiff and defendant appeals. The allegations of the 1st count as to- damages are not set out with sufficient definiteness and certainty. — City D. Go. v. Henry, 139 Ala. 161.

Heard before Hon. S. L. Brewer. Action by H. E. Allen against G. W. Baker in case for destruction of a landlord’s lien. Judgment for plaintiff and defendant appeals. Sec. 2713, Code 1896, prevents a landlord from collecting his rent of the property of a subtenant if he can collect it out of the property of a tenant in chief. Under this section, and on the authority of Thames v. Rembert, 63 Ala. 561 the court should have given the affirmative charge for the defendant.

Heard before Hon. B. M. Miller. Action by A. D. Penry against C. H. Dozier, for libel and slander. Judgment for defendant and plaintiff appeals. Tbe court erred in sustaining the demurrer to the 1st count. — Trimble v. Anclerson 79 Ala. 514; Iron Age Pub. Co. v. Grudup, 85 Ala. 519; Ivey v. P. S. & L. Go., 113 Ala. 349; Hereford v. Gombs, 126 Ala. 369; Lee v. Grump, 40 South. 609; 25 Oye. pp. 255, 261-2.

Heard before Hon. C. C. Nesmith. Action by G. W. Copeland against the Birmingham Waterworks Company. Judgment for plaintiff, and defendant appeals. The two charges referred to in the opinion are as follows : “(1)1 charge you that in assessing the damages the jury cannot take into consideration the fact that it was Christmas Eve.

<p>Appeal from Walker Law and Equity Court.</p> <p>Heard before Hon. T. L. Sowell.</p> <p>Action by J. E. Hooker against the St. Louis & San Francisco Railroad Company, for damages for killing a hog. ' Judgment for plaintiff and the defendant appeals.</p> <p>The 1st count was in trespass. — City Del. Co. v. Henry, 139 Ala. 161. The amendment was in case, and hence, could not relate back so as to put it without the bar of the statute of limitation. — Freeman v. C.tof Ca. By. Co., 45 South 899. The 3rd pleas was proven and defendant is entitled to a judgment.</p> <p>No brief came to the Reporter.</p>

Heard before Hon. C. C. Nesmith. Action by F. T. Norris against the Birmingham Belt Railway Company, for damages for killing a horse. Judgment for plaintiff and the defendant appeals. It was necessary under the pleading to show that an engine operated by defendant through its servants or agents struck and killed plaintiff’s horse, and under the proof the jury were not authorized to assume that it was the engine that belonged to the defendant. — Tinney v. C. of Ga. Ry.

Heard before Hon. W. W. Pearson. Action by Abrabam Bros., against the Southern Hallway Company for damages to live stock. Judgment for plaintiff and defendant appeals. The motion to dismiss the appeal comes too late. — Martin Go. v. Miller, 132 Ala. 629. The fact that tbe exception to the portion of the oral charge was inserted does not affect the bill as it was originally.

<p> Damages For Failure to Deliver Goods. </p> <p>1. Action; Nature. — An action against a common carrier for a breach of contract of affreightment either by a failure to deliver, or a failure to deliver within a reasonable time is ex contractu.</p> <p>2. Carriers of Goods; Loss or Delay in Delivery; Pleading.— Where the action was against a common carrier charged in one count with a failure to deliver, and in another count with the failure to deliver at a reasonable time, a plea which alleged that the shipment was to a point not on defendant line, and that it was agreed in the contract of shipment, that the defendant’s liability should cease when it had delivered the goods to the connecting carrier and that it had so delivered the goods to the connecting carrier, was not demurahle for failure to attach the contract as an exhibit or to set out the specific contract of shipment as alleged, because of the fact that it was not necessary that such contract should be in writing, in which event, it was not necessary to allege that it was in writing.</p> <p>3. Same; Contract. — A contract with a carrier for the shipment of a car load. of lumber need not be in writing, but may be made orally.</p> <p>4. Same; Limitation of Liability; Consideration. — The shipment itself furnishes sufficient consideration for a contract limiting the liabilities of the initial carriers for injuries to a shipment of goods to those occurring on its line.</p> <p>5. Same; Loss or Delay in Delivery; Pleading. — Where the action was against a common carrier, one count of which charged a total failure to deliver and another charging a failure to deliver within a reasonable time, a plea alleging that the goods were shipped to a place not on its lines, and that it was agreed between the parties that defendant’s liability should cease upon the delivery of the lumber to a connecting carrier which was specified, that the delivery was made to such carrier, and that the shipment sustained no damage while in possession of defendant, was not demurrable for a failure to show that the connecting carrier carried the lumber to its destination, or that plaintiff was notified of the delivery of the lumber to the connecting carrier or of its arrival at destination, since no such duties were specified in the contract alleged.</p> <p>6. Pleading; Replication; Departure. — Where the action was against a common carrier for failure to deliver goods and the defense set up was an agreement limiting the liability of the carrier to injuries or losses occurring on this line, and that the goods were delivered- without loss or delay to a connecting carrier specified in the contract of shipment, a reply to such plea setting up that after the shipment was made plaintiff was informed by an agent of the defendant that the lumber had been delivered to a certain connecting carrier and that he would find it at the freight office of such carrier at the point to which it was shipped and that plaintiff acted and relied on such information, but that such lumber had never arrived at the freight office of the connecting carrier and had not been delivered to plaintiff, constituted a departure from the complaint, since the complaint relies on a breach of contract of shipment and the reply alleges a misrepresentation of an agent of the defendant made sometime after the receipt of the lumber by the defendant and after the making of the contract of shipment.</p> <p>7. Pleading; Replication; Sufficiency. — To be sufficient a replication must either traverse the plea, or confess and avoid the same or set up matter of estoppel against the matters pleaded.</p>

<p> Damages For Failure to Deliver Goods. </p> <p>1. Carriers of Goods; Action; Defenses. — Where the action is against a carrier for failure to deliver within a reasonable time a plea as an answer thereto which fails to show that the cars referred to in the plea contained the freight or that the shipper was responsible for the matters therein set up and which does not show that the matters set up therein might not have had reference to another or different shipment, is bad on demurrer.</p> <p>2. Same; Classification; Effect. — Where a carrier classifies goods received for shipment with knowledge of their character and collects the freight for shipment and delivery of the goods under such classification, it cannot avoid the contract of shipment, or its liability for failure to ship according to contract on the asserted ground that the goods did not belong to the class named.</p> <p>3. Evidence; Value of Property. — Where goods were shipped to J. it was admissible to show the value of such goods at B. in determining their value at J.</p> <p>4. Same; Opinion Evidence; Damages. — A shipper suing for injury to goods delivered to a carrier for shipment may, under the circumstances in this case, give his opinion as to, the amount of damages claimed, since the rule that a witness may not testify as to his opinion of the amount of damages from a breach of contract or wrong is subject to certain restrictions or limitations.</p> <p>5. Same. — Where one evidences by his testimony that he knows the value of the goods before the injury and after the same and speaks of the difference in the value before and after the injury in stating the amount of damages he was competent to testify as to the measure of damages.</p> <p>6. Same; Admissions. — Where one presents a claim with a view of reaching an amicable adjustment of the dispute the amount of the claim cannot be shown as an admission of the extent of the loss.</p>

<p>Appeal from Houston Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Action by M. F. Simons against the Central of Georgia Railway Company, for damages for killing a cow. The court gave the affirmative charge for the plaintiff and the defendant appeals.</p> <p>Negligence alone does not give a right of action unless the negligence re-suits in injury. — E. T. V. & G. B. B. Go. v. Bayliss, 75 Ala. 472; Clements v. E. T. V. & G. B. B. Go., 77 Ala. 537; E. T. V. & G. B. B. Go. v. King, 81 Ala. 84. A failure to comply with the statute is no-t in every case an actionable wrong. — H. K. B. & M. Go. v. Bvr. B. & E. Co., 100 Ala. 425; M. & G. B. B. Go. v. Caldwell, 83 Ala. 199; N. G. & St. L. v. Hembree, 85 Ala. 485; G. P. B. B. Go. v. Hughes, 87 Ala. 615; Flippo’s oa,se, 138 Ala. 498. On these authorities it is insisted that the court erred in giving the affirmative charge.</p> <p>Counsel discusses assignments of error and insist that there was a violation of section 3440, Code 1896, and that.the plaintiff was, therefore, entitled to the affirmative charge.</p>

<p> Action for Damages to Stock. </p> <p>1. Appeal and Error; Necessity of Insistence; Waiver. — Where appellant fails in brief or argument to insist on assignments of error, they will be held to be waived and not to be considered.</p> <p>2. Carriers; Goods; Exemption from Liability to Furnish Means of Unloading. — Where the contract of shipment of live stock provided that the shipper should, load and unload the stock at his own risk, this provision does not' exempt the carrier from liability for failure to prepare proper chutes or platforms for unloading stock shipped by it as a common carrier, and this is especially true where it waives the provision by unloading the stock itself and not insisting upon its performance by the shipper.</p> <p>3. Same; Contract of Shipment; Exemption from Negligence. — If the limitation is made to secure a reasonable and just proportion between its liability and its compensation, a common carrier of live stock may qualify its common law liability, both as to risk of accident and as to the amount of damage by a special contract with the shipper, but it cannot contract for immunity from liability for loss of or injury to property resulting from the- negligence of it or its servants.</p>

<p> Damages for Injury to Employe. </p> <p>1. Master and Servant; Injury to Servant; Proximate Cause; Jury Question. — Where it was the duty and the custom of the mine owner to have both the superintendent add mine foreman to test the roof of the mine for loose or dangerous rock before directing hitches to be made to secure stations for the timber to support the roof, and no test was made by the superintendent and the test made by the foreman was of no value and injury resulted, it may be attributed as well to the negligence of the superintendent in not making the test as to the test of no Value made by the foreman, and hence, it cannot be said as a matter of law that the negligence of the foreman alone caused the injury.</p> <p>2. Same; Contributory Negligence; Abstract Instructions. — Where the action was for injuries to a timberman in a mine caused by the falling of rock from the roof and there was no evidence that the timberman knew that the rock was likely to fall, a charge was properly refused as abstract which asserted that if at the time plaintiff was engaged in digging a hitch in which a timber was to be set to support the rock which fell on him he knew that the rock was likely to fall, he could not recover.</p> <p>3. Same; Assumed Rislc. — An employe engaged in remedying an unsafe condition in the plant or premises of the employer assumes the risk of injury from such dangers as inhere in the business in which he is engaged; he does not, however, assume risk incident to the failure of his superiors to guard against danger which may be guarded against by the exercise of ordinary care.</p> <p>4. Charge of Court; Argumentative Instructions. — Charges asserting in effect that the law takes into consideration the fact that an employer may conduct his business in the way that a reasonably prudent man, would conduct it; that accident may happen as the result of which employes may sustain injury, and does not require the employer to guarantee employes against injury, but does require the employer to exercise due care that the employe be not injured, each defining due care, are properly refused as argumentative.</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. A. O. Lane.</p> <p>Action by S. M. Brock against tbe Alabama Great Southern Railroad Company. From. a judgment for plaintiff, defendant appeals.</p> <p>Tbe first count in tbe complaint is in tbe following language: “Plaintiff claims of tbe defendant, tbe Alabama Great Southern Railroad Company, a private corporation, tbe sum of $10,000 damages, in this: That on and prior to the 3rd day of August, 1907, tbe defendant operated a railway between Bessemer and Birmingham, Ala. That on, to wit, the date aforesaid, plaintiff was in tbe employment of defendant, and while engaged in tbe discharge of bis duties under his employment a locomotive engine or train on defendant’s railroad track collided with a train on which be was, at or near West End, on tbe line of said railway, greatly bruising and injuring plaintiff’s back and hips. (Here follows a list of bis injuries and an allegation that be was permanently injured and disabled.) Plaintiff avers that bis said injuries were proximately caused by tbe negligence of tbe engineer, whose name is unknown to tbe plaintiff, who was also in tlie employment of defendant, and who had charge and control of the locomotive engine on the railroad track of defendant, which collided with the car on which plaintiff was, in the negligent manner in which he ran or operated the same.”</p> <p>The oral charge of the court, excepted to was in the following language: “I charge yon, gentlemen of the jury, that it is not necessary in a case like this for the plaintiff to have been actually engaged in manual work for the defendant at the time of the injury, and if you find from the evidence that he was employed by the defendant, and that he had been engaged in the work of defendant on the wrecking car at Bessemer, and was returning from Bessemer to Birmingham, and while so returning from his work was riding in the car in order to get back to Birmingham, and was injured while so riding, X charge you that he would be, in contemplation of law, engaged at the time of the injury in the work of the defendant for which he was employed, and within the line and scope of his employment.”</p> <p>Defendant also requested the affirmative charge as to count 1, which was refused.</p> <p>The court erred in overruling the original demurrers to count 1. — Phoenix 1. Co. v. Moog, 78 Ala. 301; H. A. & B. B. B. Co. v. Dusenberry, 94 Ala. 418; Daniels v. Carney, 42 South. 452. The court should have sustained the additional grounds of demurrer filed to the 1st count. — A. (f. S. v. Sanders, 145 Ala. 449. The court should have given the general affirmative charge for the appellant since the plaintiff failed to carry the burden to show that the engineer on the engine which ran into his car was guilty of negligence which proximately caused the injury. — B. B. Co. y. Thomas, 42 Ala. 672; B. B. Co. v. Smoot, 67 Ala. 13; R. R. Go. v. Allen, 78 Ala. 494; R. R. Co. v. Davis, 91 Ala. 487;.Burnley v: B. M. R. R. Co., 95 Ala. 397; Marylee Co. v. C'hambless, 97 Ala. 171; L. & N. v. Campbell, 97 Ala. 147; L. & N. v. Binion, 98 Ala. 570. The court should have given charge 8 requested by the appellant. — L. & N. v. Orr, 91 Ala. 548; L. & N. v. Pearson, 97 Ala. 211; Seaboard Mfg. Co. v. Woodson, 98 Ala. 378; B. S. R. R. Co. v. Lintner, 141 Ala. 420.</p> <p>The 1st count sufficiently alleged the negligence, the proximate cause of the injury. — L. & N. v. Jones, 83 Ala. 376; L. & N. v. Marbury L. Co., 125 Ala. 237; Postal Tel: Co. v. Jones 123 Ala. 226; Armstrong v. Montgomery St. Ry. Go., 123 Ala. 244; McNamara v: Logcm, 100 Ala. 187; Bir. R. L. & P. Co. v. Moore, 43 South. 842. The court properly overruled the additional grounds assigned. — Lamp-kin v. L. & N.j 106 Ala. 287; Woodward I. Co. v. Herndon, 114 Ala. 214; Postal Tel. Co. v. Brantley, 107 Ala. 684 ; 103 111. 546; Creóla L. Co. v. Mills, 42 South. 1020; A. G. S. v. Williams, 140 Ala. 230. The plaintiff was an employe at the time of his injury. — 2 Lebatt M. & S. 1834; 23 Pa. 384; 17 N. Y. 134; 32 South. 460; 26 Cyc. 1086; 7 Ind. 436; 87 Am. St. Rep. 279 •,Whatley v. Zenida Coal Co., 122 Ala. 118; Va. B. &/. Co. v. Jordan, 143 Ala. 603. The court properly refused the affirmative charge. — L. & N. v. Lancaster, 121 Ala. 471; Carter v. Fulgham, 134 Ala. 242; Peters v. Southern Ry. Co., 135 Ala. 537; Bessemer F. Go. v. Tillman, 139 Ala. 462. A collision is prima facie proof of negligence. — 92 Ala. 209; 93 Ala. 514; 6 Cyc. 631; 140 111. 486; 139 Ala. 397 ; 91 Ala. 432. The conrt properly refused charge 11.— L. &N. v. York, 128 Ala. 307; 135 Ala. 537; 139 Ala. 462. The court properly refused charge 8. — L. & N. v. York, supra; G. P. R. R. Co. v. Allen, 128 Ala. 451.</p>

Heard before Hou. A. O. Lane. Action by Annie B. Hanbury, administratrix of tbe estate of Henry M. Hanbury, against tbe Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. The counts of the complaint on which the cause was tried are sufficiently set out in the opinion of the court, as are the facts in the case.

Heard before Hon. C. W. Ferguson. Action by P. Z. Alexander against the Atlanta & Birmingham Air Line R. R, Co., for injuries caused by the forward movement of an engine of which he was in charge, Avhile in front of it attempting to get the derailed front wheels on the track. Judgment for plaintiff and defendant appeals.' The court erred in overruling appellant’s demurrer to the 3rd count of the complaint. — Whatley v. Zenida Coal •Co., 122 Ala. 119; Ensley Ry.

Appear from Walker Circuit Court. Heard before Hon. James J. Ray. Action by M. T. Dorman and others against tho West Pratt Coal Company for injury tó the surface by mining underneath. Judgment for plaintiff and defendant appeals. . The court erred in refusing charges 2-and 3 requested by appelant. — Newman v. Pardee, 55 L. R. A. 410.

Heard before Hon. William Jackson. ■ Action by Alex Caldwell against the Atlanta, Birmingham & Atlantic Railroad Company for injuries. Judgment for defendant and plaintiff appeals. The court improperly sustained demurrers to the count. — Garrett -v. Sew-ell, 95 Ala. 456; s. c. 108 Ala. 523; Ala. Mid. Ry. Go. v. Grushy, 92 Ala. 254; L. & N. v. Whitman, 79 Ala. 328, —There is no error in the record.- — Ala. Mid. Ry. Go. v. Martin Bros., 100 Ala. 511.

Heard before Hon. B. M. Miller. Action by Mamie M. Fitzgerald, as administratrix, against the Louisville & Nashville Railroad Company, for damages for the death of her husband. The action is based on the employer’s liability act (Code 1907, § 3910). Plaintiff had judgment, and defendant appeals.

Heard before Hon. A. A. Coleman. Action by George Lewis against the Gray Eagle Coal Company for injuries to plaintiff while employed in defendant’s mine by an explosion of gas. Judgment for plaintiff, and defendant appeals.

<p> Injury to Servaoit. </p> <p>Master and Servant; Injury to Servant; Acts of Superintendence. — Where the servant was an oiler and his immediate superintendent ordered him to prize off! an engine which had stopped on the top center so that the steam in the cylinder could not move it, and the superintendent knew that he had let the steam into the cylinder and that it would cause the engine to start suddenly when it was moved off the center, and the servant was thereby injured, such was negligence in the superintendent in his superintendence of the ser: vant, although the superintendent is also the engineer in charge of the engine.</p>

<p> Injury to Servant. </p> <p>1. Master and Servant; Injury to Servant; Defective Mine; Evidence.- — Where the employes of a miner left a room in the mine because of the falling of some loose rock and the foreman ordered them back with the assurance that there was no further danger, and plaintiff returned and was injured by the fall of a loose washer, it was open to the jury to find therefrom that the foreman was negligent in ordering the employes back without first ascertaining that there was no more loose material overhead.</p> <p>2. Same. — Where plaintiff was injured by material falling from the roof of a mine after having been ordered back into the room by the foreman, it was admissible to show that the plaintiff was injured by the falling of a scantling after they were ordered back as tending to show that the superintendent was negligent in not examining the condition of the room before ordering the men back, especially where the evidence tended to show that the employe left the room because material overhead fell.</p> <p>3. Name; Variance. — Where the complaint charged the injuries to a foreman in defendant’s mine named Bill Nolan, and the proof showed the foreman’s name to have been Will Knowles, the variance was fatal.</p> <p>4. Trial; Variance; How Raised, — A fatal variance between the pleading and the proof, is sufficiently and properly raised by a request for the general charge.</p>

<p> Action for Injury to Licensee. </p> <p>1. Master and Servant; Who are Servants; Allegation and Proof. —Where the allegation of the complaint was that plaintiff’s injury resulted from the negligence of the defendant’s servants in manipulating the lever of a seed box, or. in its negligent operation of a gin, and the evidence showed that plaintiff and his brother were at the gin for the purpose of having a load of cotton ginned and that in taking the seed from the seed box, plaintiff was injured in the manipulation of a lever which was manipulated by plaintiff’s brother at the time of the injury, and such brother was not in the service or employment of the defendant, there was such a variance between the allegation and the proof as to entitle the defendant to the affirmative charge.</p> <p>2. Appeal ancl Error; Harmless Error; Rulings. — Where none of the rulings of the court limited or hindered plaintiff in his efforts to sustain the material allegations of his complaint, other rulings adverse to plaintiff were without injury to him.</p>

Heard before Hon. A. O. Lane. Action by W. T. Long, a fireman, against the mayor and aldermen of the city of Birmingham, for damages for injuries sustained in falling from an extension ladder while in the performance of his duty. Judgment for defendant and plaintiff appeals. The charter of the city is judicially noticed. — -Mayor of Wetumpka v. Wharf Go., 63 Ala. 611. Matters of judicial knowledge need not he stated in the pleadings. — 12 Ency. P. & P. 1.

Heard before Hon. A. O. Lane. Personal injury action by S'. A. Sharp against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff for $250 and defendant appeals.

<p>Appeal from Walker Law and Equity Court.</p> <p>Heard before Hon. T. L. Sowell.</p> <p>Action by M. E. Alteriac against the West Pratt Coal Company for injuries received while mining, by the fall of a pot or bell shaped rock. Judgment for-plaintiff and defendant appeals.</p> <p>M. & G. v. Martin, 117 Ala. 367; G. of Ga. v. Foshee, 125 Ala. 226. Demurrers should have been sustained to appellee’s pleas, 2, 7 and 9 as amended, and 10. — Osborn v. A. S. & W. Go., 135 Ala. 571; Going v. A. 8. & W. Go., 141 Ala. 537; Foley v. P. M. & M. Go,, 40 South. 273; Greola Lbr. Go. v. Mills, 42 South. 1019. Plea 15 is entirely inadequate. — ■ Southern By. v. Harlow, 135 Ala. 640; Osborn v. A. 8. & W. Go. supra. The court erred in giving the affirmative charge for appellee. — Ewreka Go. v, Bass, 81 Ala. 212 •,Montgomery v. Wright, 72 Ala. 411; E. T. V. & G. v. Bayliss, 74 Ala. 150; Wilson v. L. & N., 85 Ala. 269; Mouton v. L. & N., 128 Ala. 546; Bir. B. & E. Go. v. Allen, 99 Ala. 370; L. & N. v. Stutz, 105 Ala. 376; Bridges v. T. -G. I. & B. B. Go., 109 Ala. 293; A. G. 8. v. Davis, 119 Ala. 583</p> <p>L. & N. v. Webb, 97 Ala. 308; same v. Anchors, 114 Ala. 492; 8amie v. Marhee, 103 Ala. 160. The demurrers to the pleas were properly overruled. — Osborn v. A. 8. & W. Go., 135 Ala. 576; Bir B. B. Go. v. Allen, 99 Ala. 359; Southern v. Guyton, 122 Ala. 238; Goosa P. & F. Go. v. Williams, 133 Ala. 611. Under the plaintiff’s own evidence, he assumed the risk. — Steel & I. Go. v. Knowles, 129 Ala. 410; Thomas v. Bellamy, 126 Ala. 253; 8loss Go. v. Mobley, 139 Ala. 425; 26 Cyc. 1209.</p>

<p> Action for Death of Employe. </p> <p>1. Master and Servant; Injury to Servant; Complaint. — The duty to afford a servant a reasonably safe place to work is not an unqualified one, but is met where reasonable care and skill is exercised to furnish such a reasonably safe place, and hence, a complaint is demurrable which alleges that one in superintendence while in the exercise of the same negligently failed to furnish deceased a reasonably safe heading within which to work.</p> <p>2. Same. — Counts ascribing negligence as a ground for action are demurrable if the negligence ascribed is not averred to have been the proximate cause of the injury, or if the facts and circumstances pleaded are not so pleaded as to lead to that conclusion with requisite certainty.</p> <p>3. Same; Pleading; Contributory Negligence. — 'When the action is for death caused by the falling of the roof of the mine, a plea alleging that the deceased was guilty of negligence, proximately contributing to his death in that he negligently allowed himself to be under or in dangerous proximity to a part of the roof of said mine which was in danger of falling of which deceased had knowledge or which it was his duty to ascertain, and which he negligently failed to do, is good.</p> <p>4. Same; Language of Statute. — A plea alleging that the deceased knew of the defect which caused his death and knew that defendant’s superintendent did not know of the defect is not demurrable where it follows the language of the statute known as the Employer’s Diability Act.</p> <p>5. Same; Assumption of Risk. — A plea alleging that the person injured knew of the defect and with such knowledge continued in the employment for an unreasonable length of time and voluntarily went into the danger, is good as a plea of assumption of risk.</p> <p>6. Same; Contributory Negligence. — A plea averring knowledge of the danger and a disregard of the hazard of the event, and alleging that the same proximately contributed to his death is good as a plea of contributory negligence.</p> <p>7. Same; Replication. — Replications, asserting that the deceased continued in the employment after the knowledge of danger on a promise to remedy the defect is not appropriate as an answer to pleas of contributory negligence, and hence, demurrable as such;</p> <p>8. Same; Independent Contractor; Instructions. — Charges asserting that if the defendant had the right, to dismiss or otherwise control the deceased a sufficient relationship of master and servant then existed between them so as to render the defendant liable in damages, for any negligence, etc., were properly refused as the word otherwise control might embrace an authority not necessarily inherent in the relation of master and servant.</p> <p>9. Same; Safe Place to Work; Instructions. — A servant has the right to rely on the assurance of the master as to the safety of the machinery or appliances, and the place to work, where the attention of the master has been called to it, unless the danger is so obvious that no prudent person would use such machinery or appliances, or would work at such a place or continue in the performance of his duties with such appliances or at such a place.</p> <p>10. Same; Independent, Contractor; Instructions. — Where the evidence tends to show the facts hypothesized in a charge asserting that if the defendant reserves the general control over the work in its mine with the right to direct what should be done, and the manner of doing it, then the relation of master and servant exists, such charge is improperly refused.</p> <p>11. Same; Ditty of Servant; Instructions. — A charge asserting that if the jury believe that it was the duty of the deceased to find out whether the roof under which he was working was safe, and to pull or shoot it down when unsafe, then the jury should find for the defendant, although it was also the duty of the foreman to inspect the roof and order it pulled down, failing to hypothesize a breach by defendant of the duty lain upon him was erroneous.</p> <p>12. Same; Independent Contractors. — The relation of master and servant does not exist between an employe of the contractor and the mine owner where the mine owner gives another a contract to mine and reverse no right to interfere with the details of the work, but only requires the work to be done in conformity to the contract and mining rules; such a contract constitutes the other ijarty an independent contractor.</p> <p>13. Same; Breach of Duty; Instructions. — A charge asserting a duty on the deceased to support and secure the rocks that fell on him but which fails to hypothesize a breach of the duty asserted, and which required the finding for the defendant • even though the jury believe from the evidence that it was the duty of the mine foreman to inspect the roof, is erroneous for failure of proper hypothesis.</p> <p>14. Same; Cross negligence; Instruction. — A charge asserting that the plaintiff means in the count where he charges gross and wanton negligence to say that by gross and wanton negligence the defendant wilfully or recklessly caused or allowed a part of the roof of the mine to fall on him, etc., is erroneous in the use of the word, wilful, since that imposes a too great burden of proof on the plain-' tiff.</p> <p>15. Pleading; Alternate Averments. — A plea alleging in the alternative that plaintiff’s intestate had knowledge or notice of the defects by which he was killed is not good as a plea of contributory negligence, since the notice is not the equivalent of knowledge.</p> <p>16. Appeal and Error; Presumptions; Authority of Attorney. — • Where the bill of exceptions does not contain all the evidence and merely showed that the court overruled a motion to compel the attorney for the defendant to show his authority for appearing, it will be presumed on appeal that the court properly declined to do so.</p> <p>17. Same; Review; Discretion of Cow~t. — The discretionary ruling of the court in overruling objections to questions because leading is not reviewa'ble unless shown to have been abused.</p> <p>IS. Evidence; Supposition.-, — Where a witness testified that the matter inquired about related to one of two or three parties, and that he could not designate the party out of this number, it is not inadmissible as a supposiion.</p> <p>19. Same; Hearsay. — Where the question as to the experience that deceased had had as a miner was a controverted one, testimony of a witness that he had been told by the deceased that he had worked in other mines, was not inadmissible as hearsay.</p> <p>20. Trial; Reception of Evidence. — Where evidence is not offered there is no error in overruling a motion to exclude.</p> <p>21. Charge of Court; Perjury of Witness. — Where it was a material inquiry as to who had charge of the mine, and a witness testified that he was not the foreman of the mine, a charge asserting that if the jury believe from the evidence that he swore falsely in this particular, they might disregard his entire testimony was proper.</p>

Heard before Hon. C. C. Nesmith. Action by Oscar L. Camp against the Birmingham Railway, Light & Power Company for injuries to a horse and buggy. From a judgment for plaintiff, defendant appeals. The first count was in simple negligence and the second count was for wanton or willful injury. Charge 1 is set out in the opinion.

<p> Action for Damages to Passenger. </p> <p>1. Pleading; Amendment; Departure. — Where the original complaint alleged that the defendant was a common carrier of passe» gers for hire and that plaintiff while a passenger of defendant was injured, and that his injuries were caused proximately hy the defendant’s negligence, and subsequently counts were added hy way of amendment averring that plaintiff’s injuries were proximately caused hy the negligence of defendant’s servants or agents while acting within- the line and scope of his employment in and about the carriage of plaintiff as a passenger, and that the plaintiff was injured proximately by the wilful conduct of defendant’s servants or agents acting within the line and scope of their employment in and about carrying plaintiff as a passenger, which conduct consisted in causing a car to he set in motion with the knowledge that plaintiff would probably he injured thereby, and' with reckless disregard of the consequences, etc., the original and the amend counts were in case and the amendment constituted no departure and was properly allowed.</p> <p>2. Same; Relation Back. — Where a complaint is properly amended, the amendment relates back to the commencement of the action.</p> <p>3. Carriers; Injury to Passengers; Pleading. — The complaint sufficiently alleges the defendant’s negligence where it charges a failure to give plaintiff sufncient time to resume his place in the car after he had alighted at the siding where the train stopped.</p> <p>4. Same; Taking up Passengers. — When a ear stops at a place where it is necessary for a person to take passage it is the carrier’s duty before moving the cars to use- due care to see that no person is in the act of boarding the same; if the place is not one where it is customary to take up passengers but the car stops and a passenger receives permission of the conductor to leave the car temporarily, it is the uuty of the conductor before moving the car to exercise due care to know that the passenger is not in the act of re-entering the car or in a position which would render the moving of the car perilous; but if the place where a car is stopped is not one where passengers are received, the carrier does not breach its duty to one attempting to get aboard by moving the car while he is in a perilous position, unless the servants in charge of the car know that by moving the car the passenger’s position is rendered perilous.</p> <p>5. Same; Authority of Conductor. — A conductor is a representative of the carrier in charge of the train or car, and usually controls the operation thereof, and he acts within the scope of his authority if he grants permission to a passenger to temporarily leave the train while it is stopped at a place where it is not customary to receive passengers.</p> <p>6. Same; Boarding Moving Gar; Contributory Negligence. — It is not negligence as a matter of law for a person to attempt to board a moving car except under special circumstances, such as infirmity or being encumbered with bundles' or when the train is moving at too great speed.</p> <p>7. Same; Wanton or Wilful Negligence; Evidence. — Actual knowledge of the peril of the passenger sufficient to render a carrier guilty of wanton negligence need not be positively and directly shown but may be shown by facts and circumstances from which such knowledge may be legitimately inferred; the evidence in this case stated and examined and held to require a submission to the jury of the question as to whether or not the carrier’s servants were guilty of wanton or wilful misconduct, in and about the carriage of the passenger.</p> <p>8. Same; Instructions. — If permission had been granted plaintiff to leave the car temporarily and there was evidence from which it could be inferred that plaintiff tried to catch the first car and was injured by the last car catching his foot, a charge asserting that plaintiff could not recover unless the jury were satisfied that when the train was signalled to go' forward, plaintiff was in the act of boarding the car and was injured by the train starting while he was in that position, is properly refused for disregarding the inference from the evidence that the car was in motion when the plaintiff attempted to board it, and as disregarding the duty resting on the conductor to know before causing the train to be started that plaintiff was not in the act of boarding it.</p> <p>9. Appeal and Error; Presumption. — This court will not presume on appeal that the conclusions reached by the jury on issues of fact are against the weight of the evidence.</p> <p>10. Negligence; Contributory Negligence; When Available. — Contributory negligence is not available to defeat a charge of wilful or wanton misconduct.</p> <p>11. Same; Acts Constituting. — Wanton or wilful misconduct of the servants of the carrier can only -be predicated on actual knowledge as distinguished from a mere breach of duty that, had it been observed, would have led to knowledge on the part of the servant of the peril of the person injured, or that from reasonable appearances such person would probably be imperilled by the action the servant w.as about to take.</p> <p>12. Trial; Jury Question; Sufficiency of Evidence. — The weight and credibility of evidence, is a question left to the jury to 'determine.</p> <p>13. Witnesses; Interpreters. — An interpreter is a witness for the purpose of interpreting the testimony of other witnesses who do not speak our language, or who cannot speak.</p> <p>14. Same; Competency; Jury Question. — The competency of the person to take the oath prescribed in order to become a witness is a question addressed to the court and not to the jury.</p> <p>15. Same; Competency; Burden of Proof. — The burden of proving a witness incompetent rests upon the party objecting to his competence.</p> <p>16. Oath; Nature and. Function. — An oath is a solemn adjuration to God to punish the affiant for swearing falsely, and it sanctions a belief that the Supreme Being will punish falsehood.</p> <p>17. Charge of Court; Correcting Previous Instructions. — Although a charge standing alone is error, the error is rendered harmless in giving it, if when considered with other instructions and as explained by them it is corrected.</p>

<p>Appeal from. Jefferson Circuit Court.</p> <p>Heard before Hon. A. O. Lane.</p> <p>Action by Elizabeth Pritchett against the Birmingham Railway, Light & Power Company, for damages for falling from car while attempting to alight therefrom. Judgment for plaintiff and defendant appeals.</p> <p>The court should have given the affirmative charge for the defendant under the 2nd count. — Motile L. & Ry. Oo. v. Bell, 45 South. 56. Counsel discuss assignments of error relative to evidence, hut without citation of authority.</p> <p>The affirmative charge should never be given where there is a conflict in the evidence as to any material fact. The court properly permitted the evidence objected to. — 8. & N. Ala. Ry. Go. v. McLendon, 63 Ala. 266; Smalley v. Allerton, 70 Wis. 340; Elliott v. Stocks, 67 Ala. 301; A. G. S. v. Hill, 93 Ala. 518.</p>

City Court. Heard before Hon. H. A. Sharpe. Action by Lott Morgan against the Central of Georgia Railway Company for damages for being carried be-yon’d destination. Judgment for plaintiff and defendant appeals. The demurrer to count 2 should have been sustained as there were two causes of action joined in the same count. — L. & N. v. Dancy, 97 Ala. 888.

Heard before Hon. A. O. Lane. Action by G. F. Stanfield v. The Birmingham Railway, Light & Power Company, for damages for injury sustained in a collision. Judgment for plaintiff and defendant appeals. The court should have given charge 4 requested by the defendant. The relation alleged is not shown to have existed. — Bir. R. L. & P. Go. v. Sawyer, 47 South. 67. The court erred io overruling demurrers to the 2nd count. — City D. Go. v. Henry, 139 Ala. 161; Bir.

<p> Action for Damages to Passenger. </p> <p>1. Carriers; Passengers; Duty to; Injury hy" Stranger; Known and Unknown Danger. — While a carrier is bound to protect its passengers from all dangers which are known, or which ought to be known by the exercise of a high degree of care, whether occasioned by its own servants or strangers, yet, where neither the carrier nor its agents know of the danger of its passengers, and could not reasonably anticipate or provide against injury, the carrier is not liable for injury suffered by a passenger at the hands of a stranger.</p> <p>2. Same; Concurring Negligence of Stranger and Carrier — Where injury results to a carrier from the concurring negligence of a stranger and the carrier, the carrier is liable.</p> <p>3. Same; Vehicles and Appliances. — The carrier of passengers must provide vehicles as safe as skill andt foresight can reasonably make them, and must provide cars and appliances of the most approved type in general use by others engaged in a similar calling, and exercise a high degree of care to maintain and keep them in suitable repair and efficient for their intended purpose, and if a passenger is injured owing to any defect or unsafe condition of the vehicle, carriages, cars, or other appliances, the carrier is liable.</p> <p>4. Swine; Liability for Unavoidable Casualty. — The law does not. impose on a carrier the duty to absolutely warrant the safety of passengers and a carrier is not liable for casualties against which iuman sagacity cannot provide, nor the utmost prudence prevent.</p> <p>5. Same; Missile Throion Through Window.- — Under ordinary circumstances a carrier is not required to anticipate that missiles will be thrown through the windows of its cars, and injure passengers, and so is not required to see that the blinds are closed or lowered • to prevent it, the windows and blinds being for the purpose of admitting and excluding light and air, for the comfort and convenience of the passengers. Therefore, in the absence of a showing that such an assault or injury could have been reasonably anticipated at the time and place at which it happened, the carrier cannot be held liable for such injury.</p>

Heard before Hon. William Jackson. Action by James C. Lovelady as administrator against Birmingham Railway, Light & Power Company, for causing the death of his intestate. Judgment for defendant and plaintiff appeals. The court erred in excluding the evidence. — Bir. Ry. L. & P. fío. v. J ones, 45 South. 177; Thomas v. The State, 139 Ala. 85; Sims v. The State, 139 Ala. 77; Simmons v. The State, 108 Ala. 27; Paige v. The State, 61 Ala. 16.

Heard before Hon. L. D. Gardner. Bill by A. S-. Clark against the 1st National Bank of Abbeville, to redeem from mortgage foreclosure, and setting up usurious interest. From a decree overruling a demurrer to the bill respondents appeal.

Heard before Hon. Thomas W. Coleman, Jr. Bill by Charles E. Thomas against Carrie B. Thomas for a divorce on the grounds of abandonment. The respondent filed a cross bill for divorce on the ground of cruelty and other statutory causes, and also prayed for the cancellation of an instrument in writing which is attached to her cross bill as an exhibit. From a decree overruling demurrers to the cross bill, complainant appeals.

Heard before Hon. W. O. Mulkey, Special Judge. Bill by W. J. Wilson against the Henderson-Law Company to restrain foreclosure sale. Decree for complainant overruling demurrers to the bill and respondent appeals.

Heard before Hon. Alfred H. Benners-. Bill by the Aetna Life Insurance Company against the heirs of Thompson, asking the construction of a will and praying to be directed as to the payment of the policy on the life of Thompson. Prom a decree adverse to Della K. Thompson and others, they appeal.

Heard before Hon. A. H. Benners. Bill by the Birmingham Industrial Company against Lovick W. Phillips for an accounting. Prom a decree overruling demurrers to the bill, defendant appeals.

Heard, before Hon. W. H. Simpson. Bill by Gertrude Dodson against Aughtie Aston and others. Prom la decree sustaining demurrers to the cross bill filed by the defendant and dismissing the same, respondents appeal. On demurrer being sustained to the cross bill in vacation it was error to dismiss the cross bill without giving respondent an opportunity to amend. — Gilmer v. Wallace. 75 Ala. 220; Olds v. Marshall, 98 Ala. 148.

Heard before Hon. W. L. Parks. Bill by Amos Cbancey against Ammon Crittenden. From a decree for complainant, respondent appeals. The decree corrects the misdescription and forecloses the mortgage and refers the matter to the register to ascertain the amount due upon the mortgage.

Heard before Hon. T. L. Sowell. Bill by J. H. & W. B. Bankhead against John DeB. Hooper to quiet title. From a decree overruling respondent’s demurrer to the bill he appeals. The bill should have set forth facts showing title to the land in complaint instead of resting upon the mere naked averment of that fact. — Berry v. T. & O. R. R. Bo., 134 Alá. 622. The bill fully conforms to all the requirements of section. 5444, Code 1907.

Heard, before Hon. A. H. Benners. Bill by the city of Elyton against Z. T. Rudolph to abate as a public nuisance an obstruction located and maintained in a public street or highway. From a decree overruling demurrer to the bill, respondent appeals.

Heard before Hon. L. D. Gardner. Bill by J. E. Wilkerson against the Sellers & Orum Company to quiet and settle title to certain lands named therein. From a decree dismissing the bill, complainants appeal. The bill alleges that in 1903 Sellers & Orum.

<p> Bill to Cancel Judgment. </p> <p>1. Judgment; Cancellation; Equity; Jurisdiction¿ — A court of equity will cancel a judgment at law when it is averred and proven that defendant had no notice of the suit and has a meritorious defense thereto.</p> <p>2. Same; Vacation; Proof. — The evidence in this case stated and examined and held not to show want of notice or meritorious defense sufficient to authorize the court to render a decree vacating or annulling the judgment at law.</p>

<p> BUI to Enjoin Belling Property. </p> <p>1. Judgment. — A recital in a judgment that the parties interested and sui juris consented to its rendition, is conclusive of the facts recited and imports absolute verity in the absence of fraud.</p> <p>2. Same; Consent to Rendition; Wavoer of Irregularity. — A consent that a decree be made and entered waives prior irregularities, and is a release of errors.</p> <p>3. Evidence; Presumptions; Personal Status. — The presumption is that parties to a suit are sui juris and without disability unless the contrary 'appears, and where the decree recites that all the adult parties interested consented to its rendition, it will be presumed that a party to the cause was an adult and within the recital of the decree.</p>

Heard before Hon. C. W. Ferguson. Action by the Tuskegee Land & Security Company against the Birmingham Realty Company. From a judgment for defendant, plaintiff appeals.

<p> Action on Insurance Policy. </p> <p>1. Pleading; Plea in Bar. — A plea which only goes to the amount of recoverable and does not go to the right of recovery, is not good as a plea in bar; but in the absence of a demurrer to such a plea it must be taken and treated as a plea in bar.</p> <p>2. Same; Replication; Departure. — Where the complaint is' ex contractu for recovery on an insurance policy, a replication -setting up a breach of duty and seeking a recovery thereon is in case, and hence, a departure.</p> <p>3. Same; Replication to General Issue. — A special replication has no office to perform as a reply to the plea of the general issue since such plea merely denies the allegations of the complaint.</p> <p>4. Same; Proof; Videlicit. — Where a' date is laid under a videlicit in pleading it need not be proven exactly as alleged.</p> <p>5. Appeal and Error; Harmless Error; Failure to File Demurrer to Replication. — Although a replication constitutes a departure from the complaint, if no rulings are invoked upon it in the trial court, this court will treat the replication as good on appeal.</p> <p>C. Evidence; Burden of Proof. — Where the plea of the general issue is interposed, which merely denies the allegation of the complaint, and to which no special replication can be filed, such plea places the burden on the plaintiff to prove the allegations of the complaint before he is entitled to a verdict, or before one can be rendered against the defendant under the complaint.</p> <p>7. Insurance; Benefit lnswram.ee; Complaint. — Where the action is upon a certificate of benefit insurance, the death of the insured and the fact that it occurred during the life of the certificate are material averments.</p> <p>8. Same; Ownership of Certificate. — Although the plaintiff was named as the beneficiary, the mere issuing or signing of a benefit certificate after the death of the insured, without more, did not constitute it the property of defendant.</p> <p>9. Same; Recovery on; Delivery. — Where a benefit certificate was neither actually nor constructively delivered and was not in fact issued, until after the death of the insured, no recovery could be had on it.</p> <p>10. Charge of Court; Directing Verdict; Pleading. — Where there was the plea of the general issue, and a special plea to which only a general replication was filed, the fact that there is evidence in support of replication to certain other special pleas would not deny to the defendant the affirmative charge where the facts were established as alleged in the special plea and the plea of the general issue.</p> <p>11. Same.- — Where there was a plea going only to the amount of damages recoverable and no demurrer or special replication is filed to such plea, but issue was joined thereon, defendant is entitled to a verdict if he prove such plea, notwithstanding the plaintiff established his special replication to other, special pleas, and consequently plaintiff’s right to the general charge as to such replication would not change the proper verdict for the defendant in such ease.</p> <p>12. Same. — Notwithstanding the other pleading the defendant is entitled to the general affirmative charge where plaintiff wholly fails to prove material averments of the complaint to which the general issue is interposed.</p>

<p> Garnishment. </p> <p>1. Garnishment; What Demands Subject to. — It is only where defendant in garnishment could maintain debt or indebitatus assumpsit against the garnishee for the demand that garnishment lies to •subject a money demand to the satisfaction of the plaintiff.</p> <p>2. Same; Charter Party. — Where the owner of a vessel had arranged with a bank for a credit in favor of the master of a vessel mot to exceed $5,000.00, under which arrangement the master’s check would be honored by the bank within that limit, and the charterer •of the vessel was entitled under the terms of the charter party to about $1,000.00 after allowing all proper credit, a creditor of the charterer could not garnishee the master who had not drawn on the hank at the time he was served as garnishee.</p>

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. William Jackson.</p> <p>Action by the Wood Mercantile Company against Elmore Austin with garnishment to the L. & N. It. It. Co. Susie McAdoo was made defendant on the suggestion that she claimed the funds, and judgment was rendered in her favor. The Wood Mercantile Company later prayed for and obtained certiorari to the city court of Bessemer, but not until after the fund had been paid to the claimant. From a judgment quashing the certiorari plaintiffs appeal.</p> <p>Plaintiff had a right to certiorari. — Grantham v. Payne, 77 Ala. 586. The Code of 1907 by section 10 thereof, was made not to apply to the remedy here. Certiorari was the proper way to bring up appeal for review. — Washington v. Parker, 60 Ala. 448. The petition having been granted, the court erred in quashing it. — Wright v. Hurt, 92 Ala. 593; Washington n. Parker, supra; Wright v. Gray, 20 Ala. 363.</p> <p>The certiorari was sued out too late. — Sec. 4714, Code 1907. Under the facts in this case, the judgment having been discharged, certiorari will not lie, and the question is properly raised by motion to quash. — Smith v. Patton, 30 South. 582; Hall v. Hrabroiosld, 9 Ala. 273; Frochlichstem v. Jordan, 138 Ala. 310. Sec. 4714, applies to the case at bar. — Scales v. Ott, 127 Ala. 582; 8 Cyc. 921 and 928, and cases cited.</p>

Heard before Hon. Samuel B. Browne. Action by J. B. Ellis & Co., against D. F. Brannon and others as sureties on the bond of John W. Greene, agent for an insurance company. From a judgment dismissing the suit plaintiffs appeal. The court erred in sustaining demurrers to the complaint, — Morrisette v. Wood, 128 Ala. 507; Phoenix I. Co. v. Copeland, 90 Ala. 386. Counsel discuss other assignments of error, but without citation of authority.

Heard before Hon. W. J. Pearce. Action by tlie First National Bank of Lineville against T. E. Alexander. Judgment for defendant, and plaintiff appeals. The note as set out- in this record is as follows: “$313.55. Lineville, Ala.,- May 6, 1905. “Four months after date I promise to pay to the order of J. M. Minnis $313.55, value received, with interest from maturity until paid, payable to- the First National Bank of Lineville, Alabama.

Heard before Hon. W. W. Haralson. Action by S. B. Austin against H. E. Jordan. Judgment for plaintiff, and defendant appeals. The issues presented by the pleadings were that the noté was given for the purchase price of the mare, with the guaranty that she was sound and.would work well anywhere, while in fact she was not sound, and would not work to the plow, wagon, or buggy, and was unsafe. Rescission was also set up.

<p> Assumpsit. </p> <p>1. Pleading ; Variance; Allegation and' Proof. — Where the complaint describes the contract as having been made between plaintiff and others proof that the contract was between plaintiff and his brother operating as partners, and others constituted a variance which was not cured by proof that plaintiff’s brother had relinquished all interest in the claim.</p> <p>2. Same; Amendment After Demurrer to Evidence. — In view of the liberality of the statute relating to amendment of pleading, the fact that defendant had demurred to the evidence, would not ipso facto deprive plaintiff of the right to amend his complaint.</p> <p>3. Dismissal and Non Suit; Discontinuance; Dismissal as to One Defendant. — Where it appears that one of the parties sued was acting only as the agent of the other defendant in the premises, the plaintiff can dismiss as to the agent on the ground that no cause of' action exists against him without effecting a discontinuance as to the other defendant.</p>

Heard before Hon. H. A. Pearce. Action by W. W. Beall against B. E. Byrd. Judgment for plaintiff, and defendant appeals. The facts are sufficiently stated in the opinion.

Heard, before Hon. C. W. Ferguson. M. M. Freed sued J. A. Jemison and another upon a note containing power of attorney to confess judgment, etc., and judgment was rendered on confession without preliminary process. Jemison entered a motion to vacate and annul the judgment which was denied, and he appeals. Counsel insists that unc-er the wording of the note that suit must be brought, that is, the process must issue thereon. — 30 A. & E. Ency of Law, 113.

<p> Action on Insurance Policy. </p> <p>1. Insurance; Fire Insurance; InswaMe Interest. — A stockholder in a corporation has such an insurable interest in its property as will support a recovery on a policy issued to him thereon.</p> <p>2. Same; Waiver of Condition of Policy; Authority of Agent. — An agent who is authorized to write and deliver an insurance policy has authority to waive a condition in the policy.</p> <p>3. Same; Interest of Insured; Extmt. — The interest of a stockholder of corporate property is not measured by the value thereof, since the property is liable first for the corporate debts and the only interest in the stockholder is his right to share in the distribution of the proceeds after the payment of the debts, and his insurable interest therein is measured accordingly.</p> <p>4. Same; Burden of Proof. — The burden is on the plaintiff to show the value of his interest in the property destroyed and if he does not carry the burden his recovery can be for nominal damages only.</p> <p>5. Same; Evidence. — The evidence in this case examined and held sufficient to raise an inference that the plaintiff had some interest in the property on which the policy of insurance was issued.</p> <p>6. Same; Notice. — Notice to a soliciting agent after the issuance of a fire insurance policy is not notice to the company.</p> <p>7. Same; Regulation; Validity. — The provisions of section 4594, Code 1907, dispensing with notice or proof of loss, etc., under the condition therein named is constitutional.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. C. W. Ferguson.</p> <p>Action by the' Oliver-Watts Construction Company against P. F. Walstrom on a building contract. Judg-</p> <p>ment for plaintiff and defendants appeal.</p> <p>On the question of when recovery may be had on the common count or quantum meruit, when there is a special contract, counsel cite the following authorities. — Cunningham’s Case, 44 South. 1016; 2 Mayf. Dig. sec. 333. Charges as to what, constitutes an acceptance requested by the defendant should have been given. — Armes v. Winclhaon, 34 .South. 816; Dams v. Badders, 95 Ala. 348. Use and occupation alone is not a waiver of strict performance.— Ccmin v. Wallee, 17 la. There is no waiver in the present case. — 17 Me. 216; 57 Am. Rep. 413; 72 Am. Dec. 443; 43 N. Y. Supp. 139; 59 N. E. 455; 6 Cyc. 70. Under the circumstances in this case the contractor is not entitled to any compensation for his partial performance. — 12 Ala. 538; 30 Cyc. 126, and the numerous cases cited in note. Counsel discuss the question of damages and cites authorities in support of his contentions.</p> <p>The contractors were not builders and cannot be held to the rule of builders. The blocks were put on the ground for inspection and after they were inspected or after a fair chance had been given to inspect them the appellant could not raise any objection to visible defects whether discovered or not. —43 N. W. 834; 69 L. R. A. 973; 61 N. W. 655; 12 L. R. A. 399. The appellant accepted the work and material.— 1 Cyc. 221; 58 N. Y. 358; Badders v. Dams, 10 South. 425; Armes v. Winclham, 137 Ala. 513; 68 Tex. 32; 106 N. Y. 90; 93 Mo. 374. On the question of damages attention is called to the authorities herein first cited.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. C. C. Nesmith.</p> <p>Action by John C. Henley and others against T. W. O’Byrné for the rent of a building leased for saloon purposes which accrued after the passage and going into effect of the prohibition law. Judgment for plaintiff and defendants appeal.</p> <p>The uses and purposes for which the premises were rented were whol: ly and totally destroyed by legislative enactment, and as completely as if the premises had been totally destroyed by fire. The rule is that where the performance becomes impossible subsequent to tbe making, of tbe contract tbe promisor is not thereby discharged. — 9 Cyc. 627. This rule has its exception and these exceptions are where the performance becomes impossible by law, either by reason of a change in the law or by some action by or under the authority of the government. — 9 Cyc. 629-30; Wood v. la. B. & L. Assn., 102 N. W. 410; Am. Mer. Ex. v. Blount, 66 Atl. 212. The authority which confers upon one body-the power of legislation authorizes its successors to change, alter or annul existing laws. And this is especially true in reference to the whiskey traffic — 2 L. R. A. 384; 29 L. Ed. 636; 98 N. W. 660; 76 Pa. St. 506; 3 Mich.. 330. A contract is invalidated by the subsequent enactment of police regulation which-renders its performance illegal as to one of the parties. —12 L. R. A. 652; 30 Am. St. Rep. 201; 115 Mass. 152. Attention is directed to a recent case in Georgia where the contention of appellant was upheld under very similar facts. — Potts-Thompson Liq. Go. v. Goodrum Tobacco Co., in MS.</p> <p>The lease was not terminated by the action of the legislature in prohibiting the sale of intoxicants enacted subsequent to the execution of the lease. — 3rd Supp. A. & E. Ency. of Law, 965; 30 Atl. 966; 88 S. W. 197; lb. 368; 2 L. R. A. (N. S'.) 973; 31 N. Y. Supp. 818; 27 N. Y. Supp. 986. The validity of a contract must be determined by the statutes in force at the time of its execution. — May v. Williams, 27 Ala. 267. In the particular case in hand see the following authorities. — Chamberlain v. Godfrey, 50 Ala. 530; Warren v. Wagner, 75 Ala. 188; Cook v.- Anderson, 85 Ala. 99; Phillips v. Whitley, 109 Ala. 645.</p>

Heard before Hon. William Jackson. Action by Mrs. Mary B. Yeitch against the United States Health & Accident Company, on an insurance policy. Judgment for plaintiff and defendant appeals. Counsel discuss assignments of errors seriatim but without citation of authority. No brief came to the Reporter.

Heard before Hon. T. L. Sowell. Action of unlawful detainer by J. M. Miller against W. R. Johnson, Judgment for plaintiff, and defendant appeals. To terminate a lease by the month there should be notice to quit, equal in time to the tenancy. — McDevitt v. Lambert, 80 Ala. 536; Sec. 4953, subd. 3; Code 1907. After the termination of the tenancy the statute requires another written notice before suit can be maintained.

■ Heard before Hon. C. P. Almon. Action of unlawful detainer by Pat H. Dunn against Henry T. Clark. Prom a judgment in favor of plaintiff, defendant appeals.

<p> Fjectment. </p> <p>1. Public Lands; University Lands; When Title Passes. — Title to the lands granted to the University by acts of Congress of April 23, 1884, passed when the selection was approved by the Secretary of the Interior rather than at the date of the act or of the patent.</p> <p>2. Same. — The University of Alabama is a part of the state and the title to the lands granted by the United States for the benefit of the University is in the state as Trustee and the board of trustees is the agent of the state.</p> <p>3. States; Actions Against; Public Institutions; Property. — Public institutions created by the state purely for charitable or educational purposes, together with all the property held by such institution are a part of the state and are not subject to be sued though their charters and the act incorporating them expressly provide that they may sue or be sued, since section 14, Constitution 1901, prohibits the state from being, made a party defendant in any court of law or equity.</p> <p>5. Same; Actions by; Limitation. — Actions by the trustees of the University of Alabama to recover land granted the University in 1885, and held adversely since that time are governed by the provisions of section 2794, Code 1896, fixing the period of twenty years as the limitations for actions brought by the state for the recovery of property, and this notwithstanding the state holds such lands as trustees for the University.</p> <p>6. Limitation of Action; Applicable as to State. — Unless the statute expressly so provides, the statute of limitations does not run against the state in actions to recover either real or personal property.</p> <p>6. Evidence; Judicial; Knoioledge. — The courts take judicial knowledge of the acts of the state legislature, and although it was not necessary to introduce them in evidence their receipt in evidence is not error.</p>

Heard before Hon. John T. Lackland. Ejectment by J. F. Miller against Cuba Carr. Judgment for plaintiff and defendant appeals. Plaintiff was not entitled to recover and the court erred in giving the affirmative charge. — Bofefr v. Schening, 98 Ala. 338; Bruce v. Bradshaw, 69 Ala. 360; Scranton v. Ballarcl, 64 Ala. 403; 78 Ala. 150. Parties may try their controversies on illegal evidence if they choose to do so. — Moon v. Browder, 72 Ala. 79.

Heard before Hon. Thomas W. Coleman, Jr. Action between the Dorgan & Young Hardware Company and S. T. Stephens and another. From a judgment granting a new trial, the former appeals. The fact that the juror ivas disqualified was known to counsel and ho objection was interposed at the time. It cannot, therefore, be made by the basis for a new trial. — Daniels v. The ¡Atate, 88 Ala. 220; 24 Cyc. 216; 17 A. & E. Ency of Law, 1163; Wasswm v. Feeney, 23 Am.

Heard before Hon. Thomas W. Coleman. From a conviction for violating an ordinance of tbe city court of Anniston, prohibiting tbe sale, giving away, or otherwise disposing- of spirituous, vinous, or malt liquors, without license, Ed White appeals.

<p> Failure to Satisfy Mortgage. </p> <p>1. Mortgages; Failure to Satisfy; Penalty; Evidence. — Where the evidence tended to show that a written demand for the satisfaction of the mortgage was signed by each of the mortgagors, and was given by one of them to a third person who handed the demand to the mortgagee, and returned the copy to the mortgagor, this was prima facie evidence that the third person was acting for the mortgagors, and hence, such third person was qualified to testify that he served the written demand of the mortgagors for satisfaction of the mortgage upon the mortgagee.</p> <p>2. Same. — Where it appeared that certain notes secured by the mortgage were signed by the mortgagors and a third person and there was evidence that one of the mortgagors gave the third person money to pay on the debt, and that such mortgagor went to the mortgagee’s house with the third person and saw him go into the house and come out with one of the notes, such evidence was competent to show that one of the notes were paid with money belonging to the mortgagor.</p> <p>3. Evidence; Declarations 'Against Interest. — A declaration made by one of the makers of the note which was secured by a mortgage executed by the other makers, that all the debt had not been paid, is a declaration against interest and admissible after the death of the declarant as tending to prove non payment of the debt.</p> <p>4. Evidence; Bool' Entries. — Entries involving the transaction of another made in a person’s book in his own handwriting are admissible in evidence after snch person’s death.</p>

<p> Action for Taxes. </p>

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

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. Charles A. Senn.</p>

<p> Habeas Corpus. </p>

<p> Action to Recover Taxes. </p>

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