Volume 162 — Alabama Reports

Heard before Hon.- W. H. Thomas. York Smith petitioned for habeas corpus, and upon the hearing was discharged, from which order the state appeals.

Heard before Hon. S. N. Rowe. Application of Willie Jeter, on babeas corpus, for bis. discharge from judgment and sentence of the county court of Coffee county. From an order granting bis discharge, the state appeals.

Heard before Hon. D. W. Speake. John Holland was convicted of murder in the first degree, and he appeals. Held: in the calling of which no order had been entered for a grand jury, but only the petit jurors had been ordered and summoned. During the progress of the term the court drew and impaneled a grand jury, who investigated the killing and returned the indictment. The motion and pleas addressed to the indictment raise these questions.

Heard before Hon. S. L. Brewer. Bill Phillips was convicted of murder, and he appeals.

Heard before Hon. B. M. Miller. Joe McDaniel’s was convicted of murder in the first degree, sentenced to death, and he appeals. The facts are sufficiently stated in the opinion of the court.

Heard before Hon. H. A. Pearce. Cleve Roberson was convicted of murder in the second degree, and he appeals. The following charges were requested by and refused to the defendant: “(1) In determining what weight or credit, if any, you will give to the testimony of Lulu Ward, you may consider the fact, if it be a fact, along with all the other evidence,' that she was the mother of the deceased, Foy Ward.

Heard before Hon. H. A. Peaece. Allen Pate was convicted of manslaughter in the 1st degree, and he appeals. It was competent to show the blood-thirsty character of deceased as shedding light on the question of defendant’s self defense. — 6 Ency of Evi. 772; State v. Sumner, 130 N. O. 781; 21 Cyc. 956; State v. Ellis, 30 Wash. 369.

<p> Murder. </p> <p>1. Statutes; Local Laws. — General Acts 1907, page 542, amendatory of Local Acts 1907, page 385, is a local law, within the meaning of section 110, Constitution 1901.</p> <p>2. Same; Enactment. — Under Section 106, Constitution 1901, the spreading of the affidavit on the journal of the Senate with the name of the officer taking the affidavit omitted renders the .local law invalid under section 106, Constitution 1901, although the affidavit properly appears on the House Journal.</p> <p>3. Affidavit. — Sufficiency.—The test of the sufficiency of the paper as an affidavit is the right to assign perjury on it if false, and it is essential that the officer taking it he disclosed either by the recitals in the body thereof or by his signature to the jurat.</p>

Heard before Hon. J. W. Mabry. Frank Elder was convicted of violating a prohibition law, and he appeals. The act was unconstitutionally passed. — Roberson v. The State, 130 Ala. 164; Bob parte Howard-Harrison Go., 119 Ala. 484; Montgomery B. Whs. v. Gaston, 125 Ala. 425.

' Heard before Hon. S. L. Brewer. Bill Phillips was convicted for retailing spirituous, vinous, or malt liquors, and he appeals. The evidence for the state tended to show that, about three weeks before the finding of the indictment, Jack Browning purchased a pint of whisky of defendant, paying him 35 cents therefor. Defendant’s evidence tended to show that this was not true, and that Browning was at outs with the defendant.

<p>Appeal from Walker Law and Equity Court.</p> <p>Heard before Hon. T. L. Sowell.</p> <p>Ike-Pace was convicted for violation of the prohibition law, and appeals.</p> <p>The evidence tended to show that Henry Jones bought some whisky from the defendant, a pint, paying 25 cents therefor. The state was permitted to show, over the objection of the defendant, what Jim Davis said to Henry Jones, and what Henry Jones said to Jim Davis, about buying the whisky before Henry Jones went to the defendant’s house. The conversations were in reference to Davis having given Jones money, to go buy the whisky, and what was said between them concerning what Jones was about to do. This court admitted this evidence from a number of witnesses.</p>

<p> Violating Prohibition Law. </p> <p>1. Charge of Court; Directing Verdict.- — -Where the evidence justified the court in refusing the affirmative charge as to both counts of the indictment, the fact that the court gave, the affirmative as to the 2nd count, and refused a like charge as to the 1st count cannot be made a predicate for error, and this is true although the jury returned a verdict of not guilty as to the 2nd count, and a verdict of guilty on the 1st count.</p> <p>2. Same; Form. — A charge asserting that if the jury have a reasonable doubt as to the truth of the statements testified to by the state’s witnesses they cannot convict the accused, fails to hypothesize the materiality of the statements, and is properly refused.</p> <p>3. Same; Misleading Instructions.- — -A charge asserting that if, after considering the evidence, unless the jury can say that they have a fixed opinion of the truth of the charge they are not satisfied beyond a reasonable doubt and must acquit, is misleading.</p> <p>4. Same; Form. — An instruction that the jury upon finding accused guilty must assess a fine of not less nor more than certain specified sums, is properly refused, for the use of the word “must” instead of the word “may.”</p>

Heard before Hon. D. J. Long. John Darrington was convicted of selling intoxicating liquors and he appeals. One who acts as-the agent of the purchaser or as the assisting friend merely is not guilty of violating such a prohibition law as exists in Washington County. — Maples v. The State, 130 Ala. 121; Bonds v. The State, 130 Ala. 117; DuBoise v. The State, 87 Ala. 101; Morgan v. The State, 81 Ala. 72.

Heard before Hon. W. W. Haralson. Oris Cox was convicted of publishing a defamatory letter that had a tendency to provoke a breach of the peace, and he appeals.

<p>Appeal from Marshall Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Willie Butler was convicted of defamation, and appeals.</p> <p>Omitting the formal charging part, the indictment was as follows: “Willie Butler did falsely and maliciously speak of and concerning Alta Petty, in the presence of Sam Kennamer, charging her with a want of chastity, in substance as follows: That Dr. W. P. Allen said that he was called to see her, meaning that said Alta Petty, who was then and there a single woman, never having been married, and that she miscarried, and that her mother, Grace Petty, buried it, meaning the remains, in the garden, against,” etc. (This is a copy of the corrected indictment, sent up in response to a certiorari to perfect the record.)</p> <p>The demurrers were as follows: “(1) It does not impute any want of chastity to Alta Petty to say that Dr. Allen was called to see her. (2) Because the language charged against the defendant does not impute a want of chastity to Alta Petty. (8) Because the indictment avers as a matter of fact that the said Alta Petty did miscarry. (4) Because the indictment avers that, as a fact, Grace Petty buried the remains.”</p> <p>The demurrer to the indictment should have been sustained. — Harris v. The State, 50 Ala. 77; Noble v. The Stale, 59 Ala. 77. The evidence offered was not competent except for the purpose of showing malice. — Riley v. The State, 132 Ala. 13; Grant v. The State, 141 Ala. 96. The court went further and permitted it to go in for the purpose of showing guilt, and this is error. — Olarh v. The State, 78 Ala. 474; Smith v. The State, 52 Ala. 384; McPherson v. The State, 54 Ala. 221; Scott v. McKinnich, 15 Ala. 653; Slayton v. The State, 108 Am. St. Rep. 988; 25 Cyc. 553; 18 A. & E. Ency 1106.</p> <p>The demurrer was properly overruled. — Sec. 7134, Code 1907. There was no merit in the objection to evidence or the charges of court. — Grant v. The State, 141 Ala. 96.</p>

Heard before Horn G. K. Miller. William H. Allen ivas convicted of seduction and he appealed. The court should not have required the defendant to announce ready for trial before disposing of his motion to quash. — Crawford v. The State, 112 Ala. 1. The offense of seduction as defined by the statute was not-indictable at common law. — Wilson v. The State, 73 Ala. 527. The motion to quash should have been granted. — Hart v. The State, 117 Ala. 183.

' Heard before Hon. A. H. Alston. James W. Pannell was convicted of seduction and he appeals. The corroboration was not sufficient. — Cunningham v. The State, 73 Ala. 51 •,Wilson v. The State, 73 Ala. 587; Ca/rney v. The State, 79 Ala. 14; Weaver v. The State, 39 South. 341. On these authorities charges 1 and 2 should have been given.

Heard before Hon. B. M. Miller. Jake Grayson was convicted of carrying concealed weapons and he appeals. The court erred in not permitting defendant to show that the state’s witness had previously had defendant searched for a concealed pistol. — Scott v. The State 113 Ala. 68; Burger v. The State, 83 Ala. 36; People v. Lee Ahr Ghuck, 6- Pac. 862; 2 Wig on Evi. sec. 950. Bias may be shown as affecting the witness’s credibility and weight. — 2 Enc. of Ev. 406; 123 Ala. 482.

<p> Betting With Minor. </p> <p>Gaming; Betting With Minor; Statute. — Section 6989, Code 1907, prohibits adults from betting with minors under any circumstances, . and hence, if defendant and his minor partner jointly engaged in betting with others or against others, the defendant violated said section.</p>

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. S. L. Weaver..</p> <p>Andrew May was convicted of grand larceny, and he appeals.</p> <p>The indictment charges that Andrew May feloniously took and carried away one buggy, the property of Lula Harris, of the value of $100. It seems from the evidence that-Lula Harris purchased the buggy from one Matthews, who retained title in the buggy until it wás paid for; but the buggy was still in the possession of Lula .Harris, and had not. been returned to Matthews. It appears, further, from the evidence, that Lula Harris contemplated going to Savannah, and, not having paid for the buggy, she turned it over to Bob Battle to be delivered to Mr. Matthews; but he kept it at the home of Lula Harris for about a month, when it was stolen. Williams. was called as a witness by the state, and was asked, “Was it reported to you about the loss of your buggy?” and answered, “Yes.” “Did you find that buggy?” and answered: “I found the buggy in Louisville, Ky. I got it there.” “Was that buggy ever identified?” answered, “Yes.” “Did you have a description of the buggy?” answered, “Yes.” “Did the buggy that you found in Louisville, Ky., fill the description?” answered, “Yes; the buggy filled the description.” “Did you bring the buggy back?” answered, “Yes; I had it shipped back.” “Did any one in the presence of defendant in Louisville make any statement in regard to the defendant?” answered, “Yes; a policeman in the presence of defendant in Louisville stated that the defendant was trying to sell the horse and buggy there.” Objection was interposed to each question, and overruled, and-motion made to exclude the answers thereto, which was overruled. It was shown by other evidence that Andrew May was seen with the buggy in Birmingham, and that it was the buggy of Lula Harris.</p> <p>The following charges were refused to the defendant: “(3) Unless you believe from the evidence beyond all reasonable doubt that the buggy alleged to have been stolen was at the time of the alleged felonious taking of the value of $100, you must find that defendant not guilty.” “(5) I charge you as a matter of law under the undisputed evidence in this case, if you believe such evidence, you cannot find that Lula Harris was in possession of the said buggy at the time of the alleged felonious taking. “ (6) I charge you that if you believe the evidence .you cannot find that Lula Harris was the owner of the buggy alleged to have been stolen at the time of the alleged taking.” “(8) I charge you that if you believe the evidence in this case you must find that Bob Battle was the person in possession of the property alleged to have been stolen, and the ownership of such property should have been laid in him.” (9) Affirmative charge for the defendant. (10) Same.</p> <p>The following portions of the oral charge of the court were excepted to: “It appears from the evidence that Bob Battle was in possession of the buggy. If you believe from the evidence that he held possession for Lula Harris, or for both Lula Harris and P. D. Matthews, I charge you that the ownership of the buggy was properly laid in Lula Harris” — and “If you believe from the evidence that Bob Battle was holding possession of the buggy until the debt upon the same was settled, then I charge you that the ownership was properly laid in Lula Harris.”</p> <p>No brief came to the Reporter.</p> <p>The ownership of the property was properly laid in the buyer. — Fowler v. The State, 100 Ala. 96. The court did not err in reference to William’s testimony. — Stoball v. The State, 116 Ala. 459; Frazer v. The State, 116 Ala. 542; Fowler v. The State, supra. Evidence of the value of the buggy was not only admissible but necessary.- — Dozier’s Case, 130 Ala. 57. It was not necessary to prove the value as alleged. — 25 Oyc. 127.</p>

Heard before Hon. H. A. Pearce. Charles D. Cook was convicted of procuring money by false pretense, and he appeals.

Heard before Hon. P. N. Hickman. Tat Carnley was convicted of abandoning Ms wife and cMM, and be appeals. The warrant was returnable to the judge and not to the court, and hence, ;was defective. — Wiley v. The State, 117 Ala. 158; 1 Bish. Crim. Proc. 722; Local Acts 1908, p. 40. Counsel discusses other questions involved, but without citation of authority. The warrant was not defective.- — Hardin v. The State, 109 Ala. 50.

Heard before Hon. Charles P. Almon. Action by J. CrosswMte against the Commissioners'. Court of Colbert County. From an order of the circuit court quashing a writ of certiorari, plaintiff appeals. Appellant was entitled to certiorari, and certiorari was the proper remedy. — Commissioners v. Blount, 145 Ala. 553.

Heard before Hon. A. P. Longshore. J. H. Fulton was declared elected sheriff of Shelby county, and the election was contested by H. M. Norris. From a judgment for the contestant contestee appeals. The finding of the facts in such cases by the court can he reviewed. — Noee v. Garner, 70 Ala. 443.

Jefferson Circuit Court. Heard before Hon. A. O. Lane. Dearborn & Wakefield sued William Conniff in detinue for a typewriter. Coniff suggested Cefalu as the claimant and be came in and defended. From a judgment for plaintiff the suggested defendant appeals. The court erred in reopening the case after it bad been submitted to him.— 15 Ency. P. & P. 403; 5 Mo. 71; 6 South. 291.

Heard before Hon. H. A. Pearce. Action by the Smytbe Lumber Company -against B. W. Austin and others to recover the penalty provided for the wrongful cutting of timber. Judgment was directed for the defendant and plaintiffs appeal. This case is very similar to that of Clifton Iron Co. n. Jemison L. Co., 108 Ala. 581.

Heard before Hon. James W. Shepherd. Application by E. W. King to vacate a decree ordering a sale of land. From a judgment refusing to vacate the decree, King appeals. Where an administrator becomes a purchaser at his own sale notice to the heirs to - obtain a confirmation of the sale and an order to convey is necessary. — 108 Ala. 411; 114 Ala. 393; 119 Ala. 377.

<p>Appeal from Lee Law and Equity Court.</p> <p>Heard before Hon. A. E. Barnett.</p> <p>Action by I. H. Prince as administrator against Frank Prince for knowingly and Avillfully cutting down trees. Judgment for defendant and plaintiff appeals.</p> <p>The deed from Holderness and wife to Elbert Prince as trustee for Mary Prince created a naked trust and tbe legal title to tbe lands conveyed vested in tbe beneficiary. — Code 1896, sec. 1027; You v. Flynn, 84 Ala. 414; Tindall v. Brahe, 51 Ala. 574; Wilkerson n. May, 69 Ala. 33; Jordan v. Phillips, 126 Ala. 561; Robinson v. Pierce, 118 Ala. 173.</p> <p>The deed passed the legal title to Elbert Prince as an individual and not as trustee for any one. The descriptive words being merely descriptive of tbe person.- — Mary v. Howard, 91 Ala. 133; Agee v. Williams, 27 Ala. 644; Arrington v. Hare, 19 Ala. 242. The affixing of the name is not tbe equivalent of an averment that be sues in a representative capacity. —Wright v. Wright, 56 Ala. 43; Bradley v. Grady, 46 Ala. 277. This being true plaintiff has no title. In any event, the error in excluding the deed, if it Avas error, was harmless, since tbe proof shoAved that the cutting was from the Ellis Prince place and not from the George Prince place as alleged.</p>

Heard before Hon. H. A. Pearce. Proceedings in the nature of quo warranto by tbe state on the relation of H. H. Blackmon against J. M. Ham, to oust Ham from office. From a judgment of ouster defendant appeals. Tbe county court of •Coffee county was created by tbe Acts of 1900-01, at page 861, and this act was afterwards amended by tbe Acts of 1903,398, and this latter act was declared constitutional in tbe case of Blue v. Everett, 40 South. 203.

Heard before Hon. A. A. Evans. Action by S. B. Davis as landlord against a tenant to enforce a landlord’s lien for rent. Claim interposed by Belle Houston, mortgagee of the tenant, resulting in a trial of right of property. From a judgment for the plaintiff claimant appeals. There was material alteration in the rent contract. — 2 Mayf. Dig. 101. The verdict of the jury is cleariy contrary to the great weight of the evidence. — Cobb v. Malone, 92 Ala. 630.

<p>Appeal from Etowah Circuit Court.</p> <p>Heard before Hon. John H. Disque.</p> <p>Detinue by A. Montgomery against J. L. Mofbut for a mule. Upon suggestion that Patterson claimed the mule notice was issued to him and he came in and defended. From a judgment for the substituted defendant plaintiff appeals.</p> <p>The rule is that in order for a claimant to. recover he must show that his title existed prior to the time he interposed the claim. He must recover on the strength of Ms own title and not the weakness of his adversary. — Seisel v. Folrner, 103 Ala. 495] Donaldson v. Waters, 30 Ala. 175.</p> <p>The questions presented are purely of fact, and under the evidence plaintiff failed to carry the burden by showing title in himself. — 3 Mayf. 47.</p>

<p>Appeal from Gadsden City Court.</p> <p>Heard before Hon. Alto Y. Lee.</p> <p>Tim Feagin was tried in the mayor’s court in the city of Attalla, and upon conviction appealed to the Gadsden City Court, after executing bond as required by the charter of the city of Attalla. The case was placed upon the criminal docket of the city court, and Feagin failing to appear, the judge declared the bond forfeited and entered judgment accordingly. Defendant and bondsman appeals.</p> <p>The judgment was not authorized by the bond given. — Sec. 12, Acts 1900-01, p. 943.</p> <p>No brief came to the Reporter.</p>

<p>Appeal from Houston Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Ejectment by Minnie Elliott against P. E. Napier and others. Judgment for plaintiff and defendants appeal.</p> <p>The court erred in permitting the plaintiff to testify that after the deed from her father to her had been signed it was sent to Geneva county to the probate office to be recorded and was recorded; also in permitting her to testify that she had possession of the deeds and carried them to- Florida and kept them until she delivered them to Josiah Hughes after the death of her father; also in permitting her to testify that the deeds came into her possession. These were statements as to transactions with her father who was at the time dead. — Elliott v. Ncapier, 44 South. 552; Miller v. Kennon, 84 Ala. 59; Bibb v. Hunter, 79 Ala. 351; Dismukes v. Tolson, 67 Ala. 386. The defendant should have been allowéd to show' by the plaintiff that her husband rented a portion of the land from the grant- or after the execution of her deed. The declarations of Hughes made shortly before he died that he had been hunting his deeds and that Minnie Elliott and Robert Hughes had stolen them and carried them to Florida, should have been admitted.' — Bcheiffelin v. Bcheiffelin, 127 Ala. 35; Law v. Lata, 83 Ala. 432. The evidence of the making and non-delivery of other deeds at the same time for the purpose of avoiding claims of creditors should have been admitted on the question of intention to deliver. — Elliott v. Napier, 146 Ala. 2Í3; s. c. 44 South. 562; Fitzpatrick v. Brigman, 133 Ala. 242; Badders v. Davis, 88 Ala. 373; McLemore v. Pinkston, 31. Ala. 269; Law v. Law, supra; Moses v. Katzenberger, 84 Ala. 95; Bragg v. Massey, 38 Ala. 89.</p> <p>No brief came to the Reporter.</p>

<p> Ejectment. </p> <p>1. Corporations; Default Judgment; Record. — In order to sustain a default judgment against a corporation the record must show that the court ascertained by proof that the person served was an officer or agent of the corporation within the meaning of that term as defined by section 5303, Code 1907.</p> <p>2. Same; Jurisdiction; Service of Process; Presumption. — Where the sheriff return on process against a corporation was in effect that he had served a copy thereof on one P. as president of the defendant corporation, and the decree recited that “it being made to appear to the court that a summons requiring the defendant corporation to appear, etc., was served upon it by the sheriff” it will be presumed that the court' had jurisdiction of the corporation by a proper service under section 5203, Code 1907.</p> <p>3. Judgment; Regularity; Presumption; Collateral Attach. — The judgment of a court of record of this state having general and superior jurisdiction is always presumed to be regular and valid and founded on jurisdiction duly acquired until the contrary definitely appears; such judgment is not open to collateral impeachment merely because the record fails to show the service of process by which the court acquires jurisdiction of the defendant.</p>

<p> Ejectment. </p> <p>1. Vendor wild Purchaser; Bona Fide Purchaser; notice; Third Person. — Where a husband conveys a lot to his wife by deed which is not recorded and there was no change of possession, even if the husband and wife living together afterwards lived on the lot conveyed, that would not afford notice of the wife’s rights in the lot as against those claiming as bona fide purchasers from the husband.</p> <p>2. Same. — To render a purchaser at a foreclosure sale exempt from the effect of notice to the mortgagee of the existence of the wife’s title, before the execution of the mortgage, it is essential that there should be proof of a valuable consideration for the mortgage or for the assignment at the time it was made; neither the foreclosure proceedings, the recitals in the mortgage nor those in the assignment could operate against the wife as proof of consideration paid, where the husband conveyed the lot mortgaged to the wife, before executing a mortgage on it, and the mortgage was assigned before the deed was filed for record, but the foreclosure was had after the recording of the deed.</p>

<p> Ejectment. </p> <p>1. Estoppel; by Deed After Acquired 'Title.. — Where the grantor grants, by warranty deed, title subsequently acquired by him enures to the benefit of the grantee.</p> <p>2. Appeal and Error; Evidence.; Presumption. — Where the bill of exceptions does not purport to contain all or substantially all of the evidence, and a deed, on which depends plaintiff’s right to recover in ejectment is sufficiently definite to permit its further identification by parol evidence, it will be presumed on appeal that the description was properly aided by parol evidenec to identify the lands conveyed.</p> <p>3. Adverse Possession; Public Lands. — Adverse possession being unavailable as against the government, no claim of adverse possession could be founded where the certificate or- final receipt and patent to the land in controversy was issued within ten years before the bringing of the suit in ejectment.</p> <p>4. Appeal and Error; Bevieio; Affirmative Charge. — Although not entitled to recover the entire subject-rpatter claimed in this suit, if in fact, plaintiff in ejectment was entitled to a verdict for part, a general charge in his favor is not reversible error.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard, before Hon. C. W. Ferguson.</p> <p>Ejectment by the Tennessee Coal Iron & Railway Company, against R. U. Crowder. Judgment for plaintiff and defendant appeals.</p> <p>Actual possession of any part of land under color of title extends to the limit and boundaries defined in the color of the title with the exception that it may not embrace such as may be adversely held by another. — Anniston >Oo. v. Edmonson, 127 Ala. 464; Barrett v. Kelly, 131 Ala. 378, and Authorities cited. The essential elements of adverse possession are, 1st: The possession must be hostile; 2nd: It must be actual; 3rd: It must be open and notorious; 4th: It must be exclusive; 5th: It must be continuous. — Qhastcmg v. Chastazig, 141 Ala. 451; and authorities there cited. Adverse possession once established can be broken only in one of three ways, 1st.: By act of the real owner; 2nd: By intrusion of a stranger; 3rd: By abandonment of premises. — Yol. 2 Mayfield Digest 79; Hormant v. Eureka Go., 98 Ala. 189; Hughes x>. Anderson, 79 Ala. 215. Continuity of possession will be presumed when once actual possession is shown, and [years''thereafter the same property or possession in some subsequent purchaser or tenant is still in actual possession. — Yol. 2 Mayfield Digest 79; Land Go. v. Kyle, 99 Ala. -474. Adverse possession for ten years with or without' color of title confers title, which will support or defeat an action of ejectment. — Yol. 2 May-field Digest 77; Ikicy v. Railroad Go., 92 Ala. 249; Burks v. Mitchell, 78 Ala. 63. A conveyance of land, which is, at the time adversely held by a third person, who is exercising acts of ownership, and claiming to be in rightful possession, is void as to such adverse possessor. — Lowery v. Baker, 141 Ala. 600.</p> <p>If A, conveys to B, a tract of land of which he is in adverse possession, and of which he pnts B in adverse possession, he cannot extend B’s adverse possession to C”s land by describing C’s land in the conveyance of B, along with the lands which A owns. — Henry v. Broion, 143 Ala. 446; Woods v. Montevallo O. Go., 84 Ala. 560; 1 A. & E. Ency of Law, 873. The lands were separate parcels of land. — Stevenson v. Anderson, 87 Ala. 228. Presumptions are not indulged to show adverse possession. —Scales v. Ott, 127 Ala. 582; 1 Ency of Evid. 642; Newton v. L. ScN., 110 Ala. 474.</p>

<p> Ejectment. </p> <p>1. Sales; Execution; Purchaser; Notice. — Open possession by a grantee under an unrecorded deed, either personally or by a tenant, is constructive notice to a purchaser at execution sale of a change in ownership.</p> <p>2. Executions; Purchaser; Unrecorded Deed; Notice. — A wife obtained a bond for title from her husband to certain lands, rented out the lands and collected the rents, and then obtained a deed, but did not have it recorded until after the levy of an execution on the laad as the property of the husband. Held, a purchaser at the execution sale was charged constructively, with notice of the change in possession.</p> <p>(Simpson, Anderson and McClellan, JJ., dissent.)</p>

Clair Circuit Court. Heard before Hon. A. H. Alston. Ejectment by W. R. Taylor against Ruthy Taylor and others. Judgment for defendants, and plaintiff appeals.

Heard before Hon. A. A. C'oleman. Forcible entry and detainer by J. W. Bush, against John Thomas. The court directed a verdict for defendant and the plaintiff appeals. The deed was clearly admissible for the purpose of proving the constructive possession of the appellant. — ■Clements v. Hayes, 76 Ala. 284.

Heard before Hon. Armstead Brown. Mandamus by the state on the relation of Jos. L. Nor-wood to compel Robert L. Goldsmith, as treasurer of Lowndes county to pay warrant issued by the court of county commissioners, refunding taxes. From an order denying the rule nisi, the relator appeals. Counsel insist that the acts under which, the tax was levied contravenes subdivision 10 of section 104, Constitution 190.— Sisk v. Cargile, 35 South. 115.

Original petition in the Supreme Court. Petition by the state on the relation of the Attorney General for mandamus or other remedial writ directed to O. J. Semmes, Judge of the City Court of Mobile. Mandamus is a remedial writ granted where there is a specific legal right and there is no other adequate legal remedy. — Ex parte Merritt, 142 Ala. 115; Ex parte State, ex rel. Stouye, 51 Ala. 69; Ex parte Lowe, 20 Ai a. 330.

Original petition in the Supreme Court. Petition for mandamus by the state on the relation of E. L. Higdon, sheriff, to review the action of the circuit court of Jefferson County, in adjudging relator guilty of a contempt for violating a writ of injunction.

<p> Prohibition. </p> <p>1. Indictment and Information; Misdemeanors; Dispensing With. Acts 1907, Special Session, p. 189, is a valid exercise of the powers conferred on the legislature by section 8 of the Oonstitutiou of 1901.</p> <p>2. Statutes; Title; Sufficiency. — The title of Acts, 1907, special session, p. 189, is an act to regulate prosecution for violations of prohibition law; the body of the Acts provides that prosecutions may be begun by affidavit and indictment, and that when begun by affidavit, the prosecution will continue thereon, etc. Held, the act contains but one subject, which is expressed, in the title, and hence, does not violate section 45, Constitution 1901.</p> <p>3. Same; Enactment; Requisite. — -Acts 1907, special session, p. 189, as passed by the house and senate and signed by the Governor, provides for a jury trial in prosecutions for the violation of a prohibition law, when the defendant filed in the cause the demand for a jury, or where the ease is set for trial, such written demand may be made, etc. The house struck out the word, written, wherever it appeared in the bill, by way of amendment, but the word, written, was in the bill when enrolled and passed by the senate, and signed by the Governor. Held, that as the law-requires accused to file his demand for a jury, the striking out of the word written adopted by the house by way of amendment did not change the law, and hence, it is not void.</p>

Heard before Hon. William E. Fort. Petition by Morris Costello for a writ of prohibition to be directed to Judge N. B. Feagin of the inferior court of Birmingham, prohibiting him from trying a certain cause against petitioner for violation of a city ordinance. From a judgment denying the writ petitioner appeals.

Heard before Hon. A. A. Coleman. Quo warranto by the state on the relation of Edward IT. Scholl and others against Ellis N. Duncan, to ascertain his rights to hold the office and exercise the powers of city bacteriologist of Birmingham, Ala. Prom a decree for respondent relators appeal.

Heard before Hon. William Jackson. W. S'. Eidge was convicted for the violation of an ordinance of the city of Bessemer in its municipal court. Upon application to the city court of Bessemer, he was discharged upon a writ of habeas corpus, from which judgment the city appeals. The city had the authority to pass ordinances to prevent the storage of liquor. — Secs. 1251 and 1341, Code 1907; 17 A. & E. Ency of Law, 287. The liquors may be seized and destroyed. — 23 Oyc. 292.

Original application in the Supreme Court. Impeachment proceedings begun by the State of Alabama on the relation of its attorney general against Frank Cazalas, Sr., as 'sheriff of Mobile county, for permitting prisoners to be taken from the jail and lynched. (The argument was oral.) (The argument was oral.)

Heard before Hon. Thomas W. Wert. Action by B. H. Sample against John L. Wright and another. Judgment for plaintiff, and defendant John L. Wright appeals. The suit was originally begun against John L. Wright and Laura F. Wright. It seems that after the filing of the complaint an amendment was allowed striking Laura F. Wright as a party defendant. Upon this amendment being allowed, appellant John Wright moved for a discontinuance, which was overruled.

Heard before Hon. O. J. Semmes. Eliza J. Allman was convicted for a violation of ordinance 830, of the city of Mobile, and appeals from the judgment. Ordinance 830 was void in that another ordinance' was in force which expressly forbid under penalty that which defendant is hetre prosecuted ifor not doing. — Ordinance No. 829.; Philo, v. Prov. T. Co., 132 Pa.' St. 224.

Heard before Hon. A. H. Alston. The tax commissioner of Franklin county returned a re-assessment against the Sloss-Sheffield Steel & Iron Company raising the assessed value of their property, situated in said county. The Sloss-Sheffield Company appeals- from the judgment of the -Commissioner’s Court, and filed motion to quash the entire proceedings, which urns granted, and the state appeals. Counsel discuss the errors assigned, but without citation of authority.

Circuit Court. Heard, before Hon. John T. Lackland. Proceedings by the state against Isadore Bley for taxation of bank stock. The commissioners’ court dismissed the proceedings and the state appealed to the circuit court, where the proceedings were also dismissed, and from this order the state appeals. The court erred in dismissing the appeal.

Heard before Hon. D. W. Speaks. Trial of right of property between the Montgomery Moore Manufacturing Company and G. S. Leith, claimant. From a judgment for claimant, plaintiff appeals.

Heard before Hon. .William Jackson. Attachment by Yielding Bros & Co., against S-. L. Weinstein. Judgment for plaintiffs, and defendant appeals. Attachment for claim for goods sold levied upon certain personal property as the property of Weinstein. It seems that the defendant had already filed the claim ■of exemptions to the property levied on, in the probate office prior to the levy of attachment.

Heard before Hon. C. W. Ferguson. Action by the South & North Alabama Railroad Company and others, against Henry B. Gray, and others, upon an injunction bond. Judgment for plaintiff and defendant appeals. The allowance of a filing of a plea in abatement after the time for filing such plea is within the sound discretion of the trial court.— Hawkins v. Armour Packing Go., 105 Ala. 545; Dozier L. Go. v. Smith-Isburg L. Go., 145 Ala. 317.

Heard before Hon. Samuel B. Browne. Contest of Exemption upon levy on execution by William F. Glover upon the lands of Harry Bass. The court directed a verdict for the defendant, and plaintiff appeals. The court erred in excluding the return of the levy of the sheriff on the execution issued by tbe justice of tbe peace.

Original petition in Supreme Oonrt. Charles O. Dickens was imprisoned as for a contempt for a failure to comply with certain decrees of the Mobile Chancery Court, and petitions for certiorari to review the proceedings leading up to his imprisonment. Certiorari is the proper remedy in this case. — McAllilley v. Horton, 75 Ala. 492; Camelen v. Bloch, 65 Ala. 239; A. G. 8. v. Christian, 82 Ala. 309; Stanfield v. Dallas County, 80 Ala. 290; Pub.

Heard before Hon. George Malone. D. Clay Jones filed for probate the will of E. A. Jones. Webster L. Jones filed a contest, and from a judgment admitting the will to probate, be'appeals.

<p>Appeal from Tuscaloosa County Court.</p> <p>Heard before H'on. Henry B. Foster.</p> <p>Action by Trotter Bros., a .partnership, against the Bridgeport Coal & Land Co., with garnishment in aid of suit to J. A. Blount and others, on an unpaid stock subscription. There was judgment .discharging Blount as garnishee and plaintiff appeals.</p> <p>The subscriber to the capital stock of a corporation is liable to the creditors of the corporation to the extent of unpaid stock owned by Mm. — Secs. 234 and 236, Const. 1901; Henderson v. Mayfield W. Mills, 45 South. 211; Williams n. Evans, 87 Ala. 725; Tutiviler v. Tuscaloosa G. I. & L. Go., 89 Ala. 391; Parsons v. Josephs, 92 Ala. 403; Elyton L. Go. v. Birmingham W. & E. Go., 92 Ala. 407; Hay v. Brier-field G. & I. Go., 94 Ala. 303; Davis v. Montgomery F. & G. Go., 101 Ala. 127; Ala. Nat. Banlc v. Halsey, 109 Ala. 196. The transferee of stock who takes it with knowledge that it has not been fully paid for succeeds to-the liability of the transferrer as well as to his rights. —Henderson v. Mayfield W. Mills, supra; Allen v. Montgomery R. R. Co., 11 Ala. 437; 3 Thomp. on Corp. sec. 3222; 91 U. S. 65; 96 U. S. 328; 193 111. 394.</p>

Heard before Hon. William Jaoilson. Action by Mrs. Ida Satterfield against tbe Mutual Life Insurance Company on a policy issued upon the life of her husband. Judgment for plaintiff and defendant appeals. Tbe court erred in permitting it to be shown that on tbe date tbe policy was delivered to insured be bad $100.00 in money in bis pocket. — A tioood v. Scott, 99 Mass. 177; Woodward v. Leavitt, 107 Mass. 458; Rogers v. Burns, 27 Pa.

Heard before Horn John Pelham. Action by A. Marx, against the Kilby Locomotive & Machine. Works for breach of. a contract. Judgment for defendant, and plaintiff appeals.

‘Appeal from Geneva Circuit Court, Heard before Hon. A. A. Pearce. Action by tbe First National Bank of Samson against J. J. Morris and W. T. Edge, late partners composing the firm of Samson Live Stock Company. Judgment for plaintiff, and defendants appeal. The action was on account and for money loaned. The pleas-were non assumpsit, nil debet, and set-off. The Samson Live Stock Company was a firm, composed of J. J. Morris and W. T. Edge.

Heard before Hon. C. W. Ferguson. R. M. Jenkins sued the principal defendant in assumpsit and had garnishment in aid of suit against P. J. McGeever and others. After answer as set forth in the opinion, a judgment was entered discharging Mc-Geever as garnishee, and plaintiff appeals.

Heard before Hon. C. W. Ferguson. Action by the Wilkesbarre Lace Mfg. Co., against the 1st National Bank of Birmingham for the difference in the weight of cotton shipped under bill of lading payable to the bank. The facts are sufficiently stated in the opinion. There was judgment for the plaintiff and defendant appeals. Under the facts in this case the appellant did not buy a bill of lading.

Heard before Hon. D. W. Speaice. Action by Gunter & Gunter against Ignatius Pollack, for legal services rendered. Judgment for plaintiff and defendant appeals. The assignments of error as well as certain charges given render the bill of exceptions in this case clearly within subdivision 1 rule 33, Supreme Court- Practice, as well as subdivision 2 thereof, and hence the motion to strike the bill of exceptions should not be entertained.

Heard before Hon. Tpiom:as W. Coleman, Jr. The Art Metal Construction Company sued the Fidelity & Deposit Company of Maryland upon a supersedeas bond, for the assessed value of property recovered in detinue by it previous to the appeal that the bond was given to .secure, and there ivas judgment for plaintiff, and defendant appeals.

Heard before Hon. H. A. Pearce. J. B. Carlton as administrator sued J. A. Prestwood for breach of a covenant of warranty in a lease. Judgment for plaintiff and defendant appeals. It is too certain for argument that a plea of fraud need not be sworn to. A party making a contract who relies upon representations of the other party which are false may avoid the contract, although he did not read it. — Folmar p. Siler, 132 Ala. 297.

Heard before Hon. D. W. Speaice. Action by H. C. Turner against tbe W. T. Adams Machine Company. Judgment for plaintiff, and defendant appeals. Tbe issues on which tbe case was tried, together with tbe facts of the same, sufficiently appear in tbe opinion ■of tbe court. The following charges were refused to tbe ■defendant: (1) General affirmative charge.

Heard before Hon. C. W. Ferguson. Action by F. W. Bromberg- against the Eugenotto Construction Company, for damages for the breach of a lease caused by the improper construction of a storehouse. —There is no absolute rule that expected profits cannot be recovered as an element of damage, but the rule is. that such profits as are speculative and remote cannot be considered.

Heard before Hon. O. P. Almon. . Action by John L. Basden against W. W. Harris. Judgment for plaintiff, and defendant appeals.

<p> Assumpsit. </p> <p>1. Sales; Action; Price; Evidence. — -Where there was evidence which tended to show that the defendant authorized her builder to purchase certain mantels sued for on her account, it was competent to show that statements of the account were delivered to the defendant and retained by her without objection.</p> <p>2. Trial; Order of Proof; Agency. — Where the agency is subsequently established by other evidence, the fact that proof of the acts of the agent were admitted before proof of the agency is not grounds for reversal.</p> <p>3. Principal and Agent; Evidence; Declaration of Agent. — Where mantels were purchased by an alleged agent of the defendant, after proof ,of the agency, it was competent to show the agent’s declarations at the time of the purchase as to his authority.</p> <p>4. Evidence; Account Boole; Original Entry. — Where the action was for the price of mantels purchased for the defendant by an alleged agent, the original entries in plaintiff’s account booh concerning them were admissible.</p>

Heard before Hon. S. L. Brewer. Action by J. J. G-andy against T. J. Tippett, for money had and received. Judgment for plaintiff and defendant appeals. The complaint contained the common count, on an account stated, on open account, for money loaned and for money had and received.

Heard before Hon. Ti-tomas W. Coleman, Jr. Action by the Carolina-Portland Cement Company against the Alabama Construction Company, for the price of a carload of cement. Judgment for defendant and plaintiff appeals. The court erred in overruling plaintiff’s demurrers to the pleas.

Heard before Hon. T. L. Sowell. Action by tbe Jasper Trust Company against T. P. Lampldn. There was a directed verdict for defendant, and plaintiff appeals. The' transfer of the judgment referred to as having been made by defendant and his wife is as follows: “State-of Alabama, Walter County.

Heard before Hon. C. P. Almon. Action by the Talley-Bates Construction Company against the Alabama Western Railroad Company to recover price of construction work in the building of said road. There was a'judgment for plaintiff and defendant appeals. The contract in this case is entire. Full performance on its part constituted the defendant’s promise to pay.

Heard before Hon. S. L. Brewer. Action by J. P. Batson against J. H. Johnson on a promissory note. From a judgment for defendant plaintiff appeals. To put the plaintiff at fault the defendant must show a full and complete compliance on his part of everything required of him, or a reason for not doing so. — Johnson v. Collins, 17 Ala. 324; Harcly v. The Bank, 15 Ala. 722; Gentry v. Rogers, 40 Ala. 442; Assurance Co. v. McGlathery, 115 Ala. 213.

Heard before Hon. Tancred Betts. Action by J. E. Hough & Sons against W. V. Styles and others, upon a -judgment formerly obtained in a justice court. Certain counts were added by way of amendment wbicb upon motion of the present defendant were stricken, and plaintiff appeals. An acton upon a judgment is simply an action for debt. — Kingston v. Forrest, 18 Ala. 518; 23 Cyc. 1502.

<p> Asmmpsit. </p> <p>Evidencc; Parol to Vary Writing; Contract. — Where the contract of sale of merchandise contains certain conditions and requests the seller to ship the goods on the condition specified and on no other, such contract shows on its face that any former conversation relative thereto is merged in the written contract, and that it is the sole expositor of the agreement, and the buyer may not avoid paying the purchase price by setting up other matters not provided for in the contract.</p>

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. A. D. Sayre,</p> <p>The Capital City Insurance Company sued the Montgomery Iron Works and had garnishment in aid of suit to Baldwin and others. From a judgment fixing the interest upon the decree rendered, defendants and garnishees appeal.</p> <p>Counsel insist that the court erred in fixing the amount due by . the appellant Baldwin, but cites no authority in support of his contention.</p> <p>Counsel insist that there was no error in the judgment, but cite no authority in support of their contention.</p>

Heard before Hon. S. L. Brewer. Action by Charles Burton against Walter Andrews. The plaintiff had judgment in the justice court, and the defendant appealed to the circuit court, where judgment was also rendered for the plaintiff, and the defendant again appealed. Counsel discuss assignments of error, but without citation of authority. No brief came to the reporter.

Heard before Hon. Saffold Ber.net. Action by tlie Simpson Coal Company against H. E. Davis, for rent. Judgment for plaintiff: and defendant appeals. When the city authorities dispossessed Davis he Avas relieved of any further liability under the lease. — Copeland v. McAldory, 100 Ala. 553; Warren v. Wagnon, 75 Ala. 189. The city had paramount title. — Webb v. Demopolis, 95 Ala. 116. The court erred in sustaining demurrer to plea 3.— Orendorf v. Tollman, 90 Ala. 443.

Heard before Hon. A. D. Sayre. Action by Willie Patterson against the Grand Lodge of Knights of Pythias. Prom a judgment for defendant, plaintiff: appeals.

Heard before Hon. C. P. Almon. Action by Jolm A. Smith against Andrew Sharpe and others for commissions for sale of real estate. Judgment for defendants, and plaintiff appeals. Appellant did nothing which required of him the taking out of the license providing for real estate brokerage, and covered by section 5467, Code .1896.— Dudley v. Collier, 6 South. 304; Mfg. Go. v. Ferguson, 113 U. S. 727; Farrior v. Nett; Dug. Mfg.

<p>Assumpsit by S. J. Brown against John D. Mc-Creary. Judgment for plaintiff and defendant appeals.</p>

<p>Appeal from Houston Circuit Court.</p> <p>Heard before Hon. Terry Rioi-iardson.</p> <p>Action by H. P. Calhoun against Y. J. Lord and another, in assumpsit. Judgment against both defendants and they appeal.</p> <p>The court erred in permitting evidence as to the relation between defendants.— Brewer p. Watson, 65 Ala. 88; Wharton p. Ounnmgham, 46 Ain. 590; Thrash v. Bennett, 57 Ala. 156; Stein p. Swadley, 126 Ala. 616; Garter v. Fulgham, 184 Ala. 239; O’Neal v. Gurry, 134 Ala. 216. On these authorities the court erred in admitting the testimony of complainant.</p> <p>Counsel discuss assignments of error relative to evidence, hut without citation of authority.</p>

Heard before Hon. W. H. Thomas. Bill by W. S. Reese, Jr., and others, against J. R. G. Ivey and others. From a decree sustaining demurrers to the bill, complainants appeal. The instrument mentioned in the opinion is as follows: “State of Alabama, Montgomery County.

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H Benners.</p> <p>Bill by John Vary as the assignee of the Birmingham National Bank against R. D. Smith and others to foreclose a mortgage executed by them to said land, and assigned to complainant. There was a decree dismissing the bill and complainant appeals.</p> <p>The mortgage has been construed as containing a statutory warranty and was not therefore, a quit claim.. See former appeal in this case. — Smith v. Vary. The plea of discharge in bankruptcy urns no answer to the foreclosure proceedings. — Stewart v. Anderson, 10 Ala. 504; Carlisle v. Wilkins, 51 Ala. 371. The proof in bankruptcy of a claim by. a mortgagee without disclosing his security does not estop him from foreclosing the mortgage. — Cook v. Farrington, 104 Mass. 212; Cayle v. Randall, 71 Ala. 469. Under the facts disclosed an estoppel operated against the respondent. — Secs. 3396 and 3421, Code 1907; Jaokson v. Stephens, 16 John 110; Fash v. Blake, 38 111. 363; Touchard v. Crow, 81 Am. Dec. 108; Fairly v. Fairly, 34 Miss. 18; Van Renselaer v. Kearney,- 52 U. S. 297; 13 Cyc. 655; 68 Mo. 441; Chambers v. Ring-Staff, 69 Ala. 140; l!Us on v. Austin, 25 South. 225;. TV. E. M. Co. v. Fry, 32 South. 57; 4 Kemp. 98. Under the mortgage all after acquired title passed tó the mortgage. — Chapman v. A.bram, 61 Ala. 108; Jones v. - Reese, 65 Ala. 134; Holgrave v. Melbourne, 5 South. 285; Pruett v. Ashford, 90 Ala. 294.</p> <p>Only the property rights possessed by the bankrupt prior to the adjudication in bankruptcy passed to the trustee. — Caple v. Randall, 71 Ala. 469. Smith could testify that he had title at the time the mortgage was executed. — Florence L. & M. Co. v. Warren, 91 Ala. 536. The mortgage ivas a quitclaim, and if Smith had no title none passed.— 9 A. & E. Ency. of Law, pp. 104-5; 27 S. W. 78.; 8 N. W. 680; 56 Vt. 441; 58 Am. Dec. 575; 62 S. E. 590; 2 Dev. on Deeds, 931; Tiedman on Beal property, sec. 858; 67 Vt. 360; 112 111. 466. Sec. 3421, Code 1907, has no application. — Gee v. Pharr, 5 Ala. 586; Derrick v. Brown, .66 Ala. 162. It being a mere quitclaim it operated no estoppel against the mortgagor from asserting an afterwards acquired title. — Bean v. Welch, 17 Ala. 77; Tillotson v. Kennedy, 5 Ala. 407; J ones n. Wilson, 57 Ala. 112; Blakeslee v. Mobile I. G., 57 Ala. 205.</p>

<p>Appeal from Limestone Chancery Court.</p> <p>Heard before 1-Ion. W. H. Simpson.</p> <p>Bill by Mattie B. Coleman against John P. Holland an other to quiet title. From a decree for complainants respondents appeal.</p> <p>In order to maintain a bill filed under § 809 of the Code of Alabama, of 1896, § 5443 of the Code of 1907, to quiet title, the complainant must have an actual or constructive possession, which must be peaceable and undisputed as contradistinguished from a disputed or scrambling possession.-— Ladd i>. Powell, 144 Ala. 408; Randle v. Daughrill, 142 Ala. 490; Brand v. U. S. Gar. Go., 128 Ala. 579 \ Adler v. Sullivan, 115 Ala. 582; Sou. Ry. Go. v. Hall, 145 Ala. 224; Chastang v. Chastang, 141 Ala. 451; Kyle v. Ala. State Land Go., Sou. 174; Johnson v. Johnson, 147 Ala. 543; Lyon v. Arndt, 142 Ala. 486; Crabtree v. Ala. State Land Go., 46 Sou. 450; Foy v. Barr, 145 Ala. 244; Mor- . gan v. Leham, Durr & Go., 92 Ala. 440; Geo. E. Wood Lbr. Go. v. Williams, 47 So. 202; Drhtm v. Bryan, 40 So. 131; Johnson r. Johnson, 147 Ala. 543. A bill to remove a cloud from title cannot be maintained by a party not in possession. — Drum v. Bryan, 40 Sou. Rep. 131; Morgan v. Lehman, Durr & Go., 92 Ala. 440. There can be no constructive possession of land where the party making the deed has no land to convey. — Sou. By. Go. v. Hall, 145 Ala. 224; Smith v. Gordon, 136 Ala. 495, 498; Ghastang «. Ghastang, 141 Ala. 451. While payment of taxes on land may not of itself be evidence of possession, yet it may with other evidence tend to show both a claim of ownership and the extent of claimant’s possession.Go lemán v. First TsfarPl Hank, 115 Ala. 27, 314. Where the husband has abandoned the wife, the wife has power to alienate her land without the joining of her husband therein. — Code § 4497; High v. Whitfield, 130 Ala. 44; George Biles Sons v. Dreher, 139 Ala. 384. Only statutory relief, under § 5443-5449, Code of 1907, can be obtained. — Fowler v. Alabama, Iron & Steel Go., 45 Sou. Bep. 645.</p> <p>When any person is in peaceable possession of lands, whether actual or constructive, claiming to own the same, and his title thereto, or to any part thereof, is denied or disputed, and no suit is pending, such person so in possession may bring and maintain a suit in equity to settle the title to such lands, and to clear up all doubts or disputes concerning the same. — Code (1896) sec. 809r A court of equity has exclusive jurisdiction to set aside deeds, and other legal instruments, which are a cloud upon the title to real estate, and to order them to be delivered up and canceled. — Lufboro v. Foster, 92 Ala. 477; Marston r. Bowe, 39 Ala. 722; Gh~eene v. Boas, 47 South. 255; Smith v. Pem~son, 24 Ala. 355; Hodge v. MeMahaAV, 137 Ala. 174; 6 Oyc. 286; 2 Story Eq. Jur. (13th ed.) sec. 700, note. A party who has'a perfect title by prescription to land, a part'of which is in the actual'possession of another, may come into equity to remove a cloud on his title, which is caused by the assertion of title on the part of the person thus in possession, and the registration of the sheriff’s deed under which he claims. — Marston v. Rowe> 39-Ala. 722; (cited in Echols v. Hubbard, 90 Ala. 319; Normant v. Eureka Company, 98 Ala. 190; Toi-rent Fire Engine Company v. City of Mobile, 101 Ala. 563. Proper on a hill filed under code to quiet title, upon proper allegations to pray for relief besides statutory, as for cancellation of mortgage, and this amendment may filed after original bill filed.— Long v. Mechem, 142 Ala. 405; Interstate Bldg. & Loan Ass’n v. Stocks, 124 Ala. Ill; Cheney v. Nathan, 110 Ala. 254; Inge v. Demony, 122 Ala. 171. Legal title gives the right and draws the possession. — Woodstock Iron Co. v. Roberts, 87 Ala. 441; Powers v. Hatter, 44 South. 859. Possession under color of title limited to description in and fixed by boundaries of color of title. - — Normant v. Eureka Co., 98 Ala. 189; T. C. I. & R. Co. v. Lum, 123 Ala. 136. Mere cutting of timber on land is not alone such evidence of ownership as to amount to a possession adverse to the true owner, and the additional circumstances that the claimant paid taxes on it and excluded trespassers, will not constitute actual possession.' — 1 Cyc. p. 990-991. If a person enters upon land and uses it thereafter as a wood-lot appurtenant to his farm, in the usual and ordinary way, and exercises such acts of ownership over it as are necessary to enjoy it, such acts have been held to amount to actual possession. — 1 Cyc. 992. In order that an instrument may confer color of title it must describe the land. — 1 Am. & Ency. of law, p. 858; Reddick u Long, 124 Ala, 266. To constitute actual possession of land, it is only necessary to put it to such use by exercising such dominion or acts of ownership over it as in its present state it is reasonably adapted to. — Brand v. U. S. Oar Go., 128 Ala. 580, 80 South. 60. As against every person not claiming under a tenant in common, one tenant in common may sue for and recover in his own name the entire tract. — LeOroioo v. Malone, 47 South. 725. A conveyance of land which is at the time of its execution in the advérse possession of a third person, exercising acts of ownership and claiming to be in rightful possession is void as to such person holding adversely. — Bernstein v. Humes, 60 Ala. 582, and the cases citing this case; Sharp v. Robertson, 76 Ala. 343. Defendant’s placing notices on various parts of the land, forbidding trespassing, and employing an attorney 'to look after the land and prevent trespassing, are not sufficient acts to disturb the peaceableness of the constructive possession of the complainant. — George E. Wood Limber Go. v. Williams, 47 South. 202; See Brand v. U. S. Oar Go., 128 Ala. 580; 30 South'. 60. If a complainant has the legal title to lands that are wild, unimproved, and unoccupied, he may invoke the aid of a court of equity to remove a cloud from his title, although he has no other than the constructive possession resulting from legal ' ownership. — Olay v. Hammond, 199 111. 370; 93 Am. St. Bep. 146; note to Helden v. Helden (80 Maryland, 616)' 45 Am. St. Bep. p. 377, citing as authorities; Graham v. Florida, etc. Go., 33 Fla. 356; Mathews v. Merries, 44 Ark. 436; Shirk v. Williamson, 50 Ark. 562; Thompson v. Woolf, 8 Or. 455; Gage v. Curtis, 122 111. 520; Glos v. Randolph, 133 111. 197; Wetherell v. Merle, 123 111. 666; 5 Am. St. Bep. 574; Johnson, v.. Hiding, 127 111. 14; Lejewne v. Harmon, 29 Neb. 268.</p>

Heard before Hon. Thomas H. Smith. Bill by Jack Mitchell against the State Land Company, to quiet title and for relief against a void mortgage. A mortgagor is a tenant by contract under the mortgage. — Ooyle v. Wilson, 57 Ala. 108; 2 Jones on Mortgages,' sec. 672.

Heard before Hon. W. L. Parks. Bill by T. J. Whatley against Monroe Page to reform the description in a deed. Decree for complainant and respondent appeals. Presumption always is that a written instrument expresses the true intent of the parties, and one desiring relief must furnish clear and satisfactory evidence in order to reform a written instrument. — Hough v. Smith, 132 Ala. 204; Kilgore v. Redmill, 121 Ala. 485; 24 A. & E. Ency. of Law, 650.

<p>Appeal from Mobile Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Bill by Bryant L. White and another against E. R. Crooker and another, to rescind a contract for fraud, and to cancel certain notes and mortgages given therefor. Decree for complainants and respondents appeal.</p> <p>The bill cannot be maintained for the reason that it attempted to remove a cloud upon title, and the complainants are not in possession of the land.- — Creighton v. Johnson, 27 Ala. 803; Tyson v. Brown, 64 Ala. 244; Bonner v. Bonner, 64 Ala. 375; Curry v. Peoples, 83, Ala. 225; Ashurst v. McKenzie, 92 Ala. 484; Brotan v. Hunter, 121 Ala. 210. Where representations are immaterial equity will not interfere.— Grown v. Carrier, 66 Ala. 590. Even if the .representation is material, if the purchaser could ascer: tain the truthfulness of. such representation by ordinary diligence, then the contract will not be avoided.-— Taber v. Peters, 74 Ala. 90.; Colemcm v. Booties, 115 Ala. 307. In-order to rescind there must be an offer to tender the thing received at the earliest practical moment, and the disaffirmance must be prompt and unreserved. ■ — Stevenson v. Ellison, 123 Ala. 439; Algood v. Banks, 115 Ala. 425; Lockwood v. Fitts, 90 Ala. 153. False representations as to immaterial facts or matters are not actionable. — Greil Bros. v. Lomax, 89 Ala. 420; Jordan v. Pickett, 78 Ala. 331.</p> <p>Council discuss the rulings on pleadings and cite authorities to support his contention. He insists that it is not necessary to aver or prove possession of complainant. — Brown v. Hunter, 121 Ala. 210; Beeler’s Sons v. Dreher, 129 Ala. 386. The amendment sufficiently .alleged an offered to do equity by surrendering the things received. — 24 A. & El Ency. of Law, 621; Martin v. Martin, 35 Ala. 566; Perry v. Boyd, 126 Ala. 169. The complainants acted within a reasonable time after the discovery of the fraud.- — -Kilpatrick v. Hinson, 81 Ala. 468; Young v. Arntz, 86 Ala. 121; Algood v. Bank of Piedmont, 115 Ala. 424. The fact that complainants did not inform themselves was no defense. — Hooper v. Whittaker, 130 Ala. 324; Woodlmry v. The State, 69 Ala. 245; Brown v. Freeman, 79 Ala. 410; Burrows v. Pacific Q-. Go., 81 Ala. 258; Henry v. Allen, 93 Ala. 200; Baker v. Maxwell, 99 Ala. 564. Ward’s misrepresentations were material, and will avoid the contract if they were relied on. 138 Ala. 214; 112 Ala. 578; 90 Ala. 428; 56 Ala. 377.</p>

<p>Appeal from Jefferson Chancery Court.'</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by Mollie Jackson against Henry L. Badham to quiet title. Decree for respondent and complainant appeals.</p> <p>No matter how unessential the directions in a power may seem, one who conveys another’s land under it must comply strictly with all the directions, conditions, etc., in the power, or title will not pass; and the burden is on him who claims under such a conveyance to show such compliance.- — Wood v. Lake, 62 Ala. 489; Jones v. Morris, 61 Ala.- 518; March v. England, 65 Ala. 275; 22 A. & E. Ency. of Law, 1098. A conveyance of land at a time when it is held adversely is void. — 2 Mayf. 92. A vendor who remains in possession of the land sold, and with knowledge of the vendee, claims and holds the same adversely to the vendee for ten years acquires title.— Dolittle v. Robinson, 109 Ala. 412; Yancey v. Savannah fío., 101 Ala. 234. Where the homestead occupied by the husband at the time of his death does not exceed the area and value allowed by law as exempt, a selection of such property by the widow is not necessary to enforce the right of homestead exemptions, and if the same constitutes all of the decedent’s property, the title vests absolutely in the widow. — Qumn v. Campbell, 126 Ala. 280; Faircloth v. Carroll, 137 Ala. 247; Secs. 4196-7-8, Code 1907, and cases cited. Defendant cannot defeat-the action by showing a superior title in a stranger who had conveyed to defendant while the land was adversely held. — Kendrick v. Golyar, 148 Ala. 597.</p> <p>No brief came to the Reporter.</p>

Heard before Hon. L. D. Gardner. Bill by Houston County against Henry County to enjoin the prosecution of a suit to collect money alleged to be due Henry County, for a portion of Houston County taken therefrom. Prom a decree sustaining demurrers to the bill, complainant appeals. The authority for bringing the suit sought to be enjoined was found in sections 124, Code 1907.

Appear from Morgan Chancery Court. Heard before Hon. W. H. Simpson. Bill by Acton C. Hartshorne against the city of Decatur and the Southern Bailway, to subject certain property to his claim against the city alleged to have been purchased with funds of the city, and conveyed to the Southern Bailway Company for terminal facilities. Decree for complainant and respondent appeals.

<p> BUI to Declare Deed Absolute a Mortgage, and for Cancellation. </p> <p>Mortgages; Deeds as Mortgages; Cancellation, etc. — Where a deed absolute on its face was intended to operate as a mortgage, and the grantee in the deed gave the grantor a bond for title, conditioned to reconvey on the payment of the debt secured, and the debt having been paid, and the grantor being in possession, had the right to have the deed canceled as a cloud upon title, and to have a re-conveyance in accordance with the bond for title; or on failure of the' grantee to reconvey, to have the deed declared a mortgage, and to have a reconveyance executed by the register in accordance with the decree.</p>

<p> Injunction. </p> <p>1. Charities; Equity; Jurisdiction. — Equity will not take jurisdiction of matters concerning charitable associations or religious societies except for the purpose of protecting some property right.</p> <p>2. Equity; Motion to Dismiss; Determination. — Upon a motion to dismiss a bill for want of equity only the bill and its allegations can be looked to.</p> <p>3. Same; Jurisdiction; Property Rights. — A bill which showed that the right of a complainant to an office in a fraternal society, to which office is attached some pecuniary interest In the shape of exemption from dues of the society and in which is Involved, a right to life and health insurance shows a property right, and such bill does not fall within the rule that equity will not take jurisdiction of matters concerning charitable and religious associations, but falls rather in the exception that a property right is involved.</p>

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by Kate O. Rosser against Engene Fies and others. Decree for complainant, and respondents appeal.</p> <p>The case made by the bill is that Jennie Johns in her lifetime was the owner of certain lands in the county of Jefferson, and that before her death she undertook to execute and deliver deeds.for the same to her husband, L. W. Johns, that L. W. Johns undertook to and did execute and deliver a deed to said property to. Eugene Fies for the consideration expressed therein, and that said Fies executed to Johns a mortgage for part of the purchase money; that complainant and certain other respondents named therein, other than Fies, are the legal heirs and distributees of Jennie Johns’ estate; and that she is dead intestate. The bill alleges the insanity of Jennie Johns at the time of the execution of the deed to L. W. Johns, and that the deed is void for that reason, and that Johns, having no title, conveyed none to Fies, .except possibly his life estate in the said land. The prayer of the bill is that the deed from Jennie-Johns to L. W. Johns and from L. W. Johns to Eugene Fies, and the mortgage from Fies to Johns, be declared null and void and of no effect and delivered up for cancellation, and that the property described be sold for the purpose of division between complainant and certain of the respondents, who are joint owners. Fies interposed demurrers, setting up that it appeared that L. W. Johns had a life estate in the property described, and that it is not averred that the respondent L. W. Johns joins in the prayer of the bill of complainant for the sale of the property described, for division, or consents thereto, and this court has no jurisdiction to order a sale for division without the consent of the life tenant, or until the life estate falls in. The other respondents filed numerous demurrers, setting up that Kate Rosser is not shown by the bill to be entitled to possession of the property mentioned in the bill, or that she has an estate in possession, and many other grounds not necessary to be set out.</p> <p>The appellee not being in possession is not in position to maintain this bill. Equity cannot be predicated upon the alleged execution of the deed by Mrs. Johns while insane, and so the complainant has the legal title. — Galloway v. Hendon, 181 Ala. 380; Wilherson v. Wilherson, 129 Ala. 270; Dougherty v. Powe, 127 Ala. 577. The life estate was in L. W. Johns as a tenant by courtesy, and the appellee is not entitled to possession or the immediate use of the proceeds after sale, and hence, may not maintain partition. — Wilkinson v. Steioart, 74 Ala. 198; Gayle v. Johnson, 80 Ala. 395. There was no tenancy in common between the appellee and appellant. — Freeman on Co-Tenancy and Partition, sec. 431, Nichols v Nichols, 67 Am. Dec. 699; Savage v. Savage, 20 Am. St. Rep. 795; 30 Cyc. 178; 21 A. & E. Ency. of Law, 1150 (a), and 1155 (g) ; Bussell v. Beasley, 72 Ala. 190.</p> <p>The appeal being joint and errors haying been separately assigned without permission, they should not be considered. — 110 Ala. 555, Rudolph v. Brewer, 96 A5|a. 189. Appellee being the remaindermen and out of possession can maintain this bill by virtue of the statutes and constitution of the state. — Sec. 3354, Code 1907; Sec. 13, Constitution 1909; Woodstock I. Co. v.. Fullenwider, 87 Ala. 587; Lansden v. Bone, 90 Ala. 446; Lowery v. Davis, 90 Ala. 468; Worthington v. Miller, 134 Ala. 420; Mitchell v. Baldwin, 45 South. 715. Appellee as a remainderman can maintain the hill for partition notwithstanding there is an outstanding life estate. The husband and children of a married woman take and hold real estate of which the mother and wife died seized and possessed as tenants in common. — Sections 3762, and 3765, Code 1907; 16 Cyc. 648; 4 Kent. 198; McQueen v. Turner, 91 Ala. 272; Thompson v. Thompson, 107 Ala. 163; Marshall v. Crowe, 29 Ala. 280; Goree v. Dickinson, 98 Ala. 363; Section 5231, Code 1907; Broion v. Hunter, 121 Ala. 210. The life, estate is such an obstacle or impediment as authorizes removal of the cloud, —Kelly v. Deegan, 111 Ala. 156; Fitts o. Craddock, 144 Ala. 437. On the above authorities, the bill was not multifarious.</p>

<p> Bill for Accounting. </p> <p>1. Corporations; Corporate Wrong; Action hy Stockholders; Ttights. — Actions to redress wrongs committed against corporations or for money due it from its offices must he brought in the name of the corporation, and the stockholder cannot sue in his own name in such cases unless he shows that he has done all that he can do to ■obtain redress within the corporation itself, and having failed with the officers thereof that he has applied without avail to the stockholders as a body.</p> <p>2. Same. — A hill by a stockholder suing a corporation and its officers for an accounting for moneys received by an officer for the corporation, which show's only that complainant’s wife and the wife of the officer are sisters, and that they and some of their nephews and nieces are owners of the stock, does not show such an excuse for not applying to the stockholders as a body for redress of the wrongs complained of, is not sufficient in that aspect, and justifies the denial of the relief sought.</p>

<p>Appeal from Marengo Chancery Court.</p> <p>Heard before Hon. Ti-iomas H. Smith.</p> <p>Bill by Enos Rodgers and others against W. C. Harrison to cancel deed. .Judgment for complainants and respondent appeals.</p> <p>No trust relation was shown and the evidonee shows no improvident bargain. — Holt v. Agnew, 67 Ala. 868; Judge v. Williams, 19 Ala 765.</p> <p>Harrison was an agent. — Gibson v. Snoto Go., 94 Ala. 851; 1 A. & E. Ency. of Law, 938. This relation being shown the burden was on the respondent to show that the transaction was fair and just, and without undue influence.' — Holt v. Agnew, 67 Ala 368; Shipman v. Furniss, 69 Ala. 564; Haraway v. Haraway, 136 Ala. 503; Waclclell v. Lanier, 62 Ala. 347; Williams v. Poioell, 66 Ala. 21; Noble v. Aloses, 81 Ala. 541; McQueen v. Wilson, 131 Ala. 506.</p>

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by V. O. Smith against Lillian Keily and others to enforce an equitable lien. Decree for complainant and respondents appeal.</p> <p>In order to enforce an equitable mortgage and to foreclose the condition precedent existing must be fully performed. — 27 Cyc. 984. Statutory requirements must be strictly complied with. — Lloyd v. Guthrie, 131 Ala. 65; Long v. Pocahontas Goal Go., 117 Ala. 587. The lien was cleared away. — Copeland v. Kehoe, 67 Ala. 594. The original contractor was a necessary party. — Acts 1901, p. 2122. The husband could not fix an equitable lien unless authorized to do so in writing. — Sec. 2289. Code 1907; Phillips v. Adams, 70 Ala. 372. There was neither a mechanic’s lien nor a special equity. — Lehman v. Myer, 67 Ala. 396; 3 Mayf. 197.</p> <p>An equitable mortgage was created. — 11 A. & E. Ency. of Law, 185; 19 Id. 113; Morrow v. Turner, 35 Ala. 131; Hewiin v. McGaffee, 64 Ala. 357; Woodruff v. AdaAr, 131 Ala. 530; Marhham v. Wallace, 147 Ala. 243; Gourtney v. Etheridge, 149 Ala. 78. The assignment was sufficient to pass the title. —Wells v. Oody, 112 Ala. 282; 2 A. & E. Ency. of Law, 1055; Sec. 28, Code 1896. The exception to the register’s report was too general. — Harper v. Raisin Frt. Go., 148 Ala. 362; Rule 93, Chan. Pr.</p>

Heard before Hon. L. D. Gardner. Bill by W. B. Barnes against A. J. Bentley and another to compel specific performance of contract. Decree for complainant and respondents appeal. The bill as amended introduced a new cause of action and ivas without right. — Glass v. Glass, 76 Ala. 868; Ward v. Patton, 75 Ala. 207; Rapier v. Gulf 'City Go., 69 Ala. 476; Scott v. Ware, 64 Ala. 174.

Heard before Hou. Charles A. Senn. Bill by G. B. Duy, against Alice S. Higdon and others to cancel certain contracts. Decree for respondents and complainants appeal.

<p>Bill to Abate Nuisance, and for Damage.</p> <p>1. Nuisances; Public; Injunction. — Any person who suffers damages by reason of a' public nuisance may maintain a bill to abate or enjoin the same.</p> <p>2. Same; Defense. — The fact that a complainant maintains a similar nuisance near her own premises will not prevent her from maintaining a bill to enjoin a public nuisance.</p> <p>3. Same; Public; Knowledge of Defendant. — The evidence m this case stated and examined and held insufficient to establish that the nuisance was maintained with the knowledge of and concurrence in</p> <p>■ by one of the defendants.</p> <p>4. Same; Variance. — -Where the bill sought to enjoin two defendants from maintaining a public nuisance, and the proof failed to establish the allegation of knowledge on the part of one defendant, or his consent to the maintenance of the nuisance, the variance was fatal to the whole bill, and the bill should have been dismissed without prejudice.</p>

Heard before Hon. Ti-iomas H. Smith. Bill by the Southern Railroad Company against Madison Jones, and others to enjoin an ejectment suit. From a decree overruling demurrers to the bill and refusing to dissolve an injunction respondents appeal.

Heard before Hon. A. H. Benners. Bill by A. S. C'owan as trustee in bankruptcy of the estate of Steve Lacey against Ollie V. Lacey and others to subject certain property to the claims of the creditors of the bankrupt. There was a decree for complainant and certain respondents appeal.

Heard before Hon. A. D. Sayre. Bill by W. IT. Underwood against Piety Underwood to require a sale of personal property for bis benefit as remainder, or to require security given tberefor. From a decree dismissing tbe bill complainant appeals. Tbe demurrer was sustained on every gnound and unless there is some ground wbicb goes to tbe whole bill on its merits, tbe order dismissing tbe bill must be reversed. — House v. Mullen, 22 Wall. 42.

Heard before Hon. Saffold Behney. Bill by Mary J. Martinez and others, against Elizabeth D. Meyers, and others to re-open a decree of settlement of administrator’s accounts. From an order overruling the motion to dismiss the bill for Avant of jurisdiction apparent on its face, respondents appeal.

Heard before Hon. Alfred H. Benners. Bill by the city of Woodlawn against J. A. Durham,, to declare and enforce a lien on property abutting a street which has been improved by the city. Decree for respondent and complainant ¿ppeals. No brief came to the Reporter. No brief came to the Reporter.

Heard before Hon. A. D. Sayre. Suit by the State against the Capitol Brewing & Ice Company, to recover a brewer’s license tax. Judgment for defendant, and the State appeals.

Heard before Hon. C. W. Ferguson. Action by Alonzo K. Arnold and others, against the Southern Railway for damages. From a judgment against the Southern Railway it appeals. The- court erred in disallowing the petition for removal. — A. G. S. v. Thompson, 200 U. S. 206; O. N. O. & T. P. R. R. Co. v. Bohon, 200 U. S. 221.

Heard before Hon. William Jackson. Action by Ernest Driver, by bis next friend, against the United States Cast Iron Pipe & Foundry Company. From a judgment for plaintiff, defendant appeals. The third count of the complaint is as follows: “The plaintiff, who is under the age of 21 years, suing by his next friend, Mrs. L. D. Driver, who is over the age of 21 years, claims of the defendant the sum of $1,900 damages.

Heard before Hon. H. A. Sharpe. Action by Tom Turner, an employe, against the Louisville & Nashville Railroad Company for damages for injury received while in its employment. Judgment for defendant and plaintiff appeals. No brief came to the Reporter. No brief came to the Reporter.

Heard before Hon. C. W. Ferguson. Action by William H. Wilson, pro ami, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. William Jackson. Action by Semey Travis, administratrix, against the Sloss-Shef&eld Steel & Iron Company for the death of her intestate, while in the employment of the defendant. Judgment for defendant and plaintiff appeals. A witness may state collective facts. — Elliott v. Stocks, 67 Ala. 590; Woodstock I. Go. v. Roberts, 87 Ala. 442; Hood v. Diston, 90 Ala. 377; Abbott v. Paige, 92 Ala. 575; Southern G. & F. Go. v. Bartlett, 137 Ala. 235.

<p>Appeal from Bibb Circuit Court.</p> <p>Heard before Hon. B. M. Miller.</p> <p>Action by Mrs. M. A. Green, administratrix of the estate of W. T. Green, deceased, against the Bessemer Coal, Iron & Land Company.</p> <p>The following counts of the complaint are referred to in the opinion:</p> <p>(4) “The plaintiff, as administratrix of the estate of W. T. Green, claims of the defendant, the Bessemer Coal, Iron & Land Company, a corporation, the sum of $15,000 as damages, for that heretofore, to wit, on the 11th day of March, 1907, the defendant was operating a coal mine at or near Belle Ellen, in Bibb county, Ala., by the slope system, and that on said day plaintiff’s intestate was in the service or employment of the defendant in or about the operation of said mine, and that on said day the defendant in the operation of said mine was using a hoisting engine, and with it was letting down tram or dump coal cars into, and pulling them out of, said mine on a tram track by using a cable from said hoisting engine and fastened to said cars, the cars being coupled together, and that the intestate on said day, while in said tram or dump coal cars, and the said car was being lowered in the said mine by the means aforesaid with intestate upon it, and before said car had been lowered to the bottom of said mine, and while it was being lowered or let down the incline of said slope, the car upon which the intestate was riding and while the intestate was upon it, became detached or uncoupled from the car above it, and ran down said incline and killed the intestate as a proximate consequence thereof; and plaintiff avers that said cars became detached or uncoupled, and ran down said slope, and killed the intestate as aforesaid, by reason and as a proximate consequence of the negligence of a person in the service or employment of the defendant who had superintendence intrusted to him whilst-in the exercise of such superintendence, viz., whose name is unknown to plaintiff, negligently caused or allowed said car to become detached or uncoupled as aforesaid, and thereby negligently caused the death as aforesaid of plaintiff’s intestate.”</p> <p>(9) Same as 4, except that it is alleged that defendant ivas using the hoisting engine, drum or machine and coal cars for lowering and hoisting persons into and out of said mine, and while in the discharge of the duties of said employment he was being lowered by defendant by the means aforesaid into said mine, etc., same as fourth count. The negligence alleged is as follows: “That defendant on said day was using said car or cars as cages for the purpose of lowering and hoisting persons into and out of said mine without any approved safety catches attached to the said car or cars then and there being used as aforesaid, which proximately contributed to the injury and death of intestate. (This is the amended count.)</p> <p>Count 10 is not set out.</p> <p>(11) Same as 4,- except that it is alleged that he was injured while going to his work down a certain slope in said mine of defendant, as he had a right to do, on a trip of cars attached to each other. The negligence alleged in this count is under the' first subdivision of the employer’s liability act (Code 1907, § 3910).</p> <p>Plea 4: “Defendant is not liable in' this action because plaintiff’s intestate had notice that it was dangerous to ride on said tram cars, and had been warned and informed thereof, yet, notwithstanding said warning and knowledge, he negligently got on said car on the morning of the injury complained of, and proximately contributed to the said injury; and defendant says that he assumed the risk as to injuries received' on account of his negligence.”</p> <p>Plea 8: “Plaintiff’s intestate was himself guilty of negligence which proximately contributed to his death, in this: With knowledge of a safe.way to walk to his place of work, and with knowledge of the danger of riding on said tram car, he negligently conducted himself in going to his said work by riding on said car.”</p> <p>Plea 10: “Defendant’s foreman warned plaintiff’s intestate that it was dangerous to ride on said tram car, and instructed said intestate not to ride on said tram car.”</p> <p>Plea 11: “Plaintiff’s intestate was an employe of defendant, and his duties were in the main way in the said mine, and a safe way was provided for said intestate to walk to his place of work; and defendant says that said intestate was guilty himself of negligence which proximately contributed to his said injuries in this: With knowledge of the safe way to walk to his place of work, and with knowledge that it was dangerous to ride on the tram cars into said mine, negligently undertook to go to his place of work by riding on said cars.”</p> <p>The replication numbered 1, 3, and 4 set up a custom, of the employes in riding to their work and an acquiescence with knowledge by the master that the servants were in the habit and custom of riding to their work on the cars as plaintiff’s intestate was doing when he was killed. It is deemed unnecessary to set out replication No. 3.</p> <p>The court erred in sustaining demurrers to the 4th count. — Williamson I. Go. r. McQueen, 144 Ala. 265; Bessemer L. Go. v. Campbell, 121. Ala. 50; Bear Greek M. Go. v. Parker, 134 Ala. 293; A. G. S. v. Davis, 119 Ala. 573. The court erred in sustaining demurrer to the 9th count of the complaint originally and as amended. — Sec. 1028, Code 1907; Deserant v. Cerillos, C. '&c R. Co., 178 U. S. 1123. Aside from the statute, it is the master’s duty to furnish safe appliances, and safe working places. — 137 Mass. 380; 80 Wis. 84; 1 L. R. A. 78; 111 A. S. 228. The court erred in sustaining demurrer to the 10th count. — West Pratt C. Co. v. Andrews, 43 South. 348. The court also erred in sustaining demurrer to the 11th count. — Southern Ry. Co. v. Svñnney, 42 South. 811. The court erred in overruling demurrer to plea 4. — Jones v. Pioneer Min. Co., 42 South. 999; 1 Dresser, sec. 97; Robinson M. Co. v. Tolbert, 132 Ala. 466. The same is true of the 8th plea. — - 141 Ala. 206; 43 South. 378. The court erred in sustaining demurrers to replications 1, 2, 3 and 4. — L. & N. v. York, 128 Ala. 307; 12 Cyc. 1087-8.</p> <p>The court properly sustained demurrers to the 4th count.- — Jones v. Pioneer M. & M. Co., 149 Ala. 402;: Osborn v. Ala. S. & W. Co., 135 Ala. 571; Woodward I. Co. v. Curl, 44 South. 696. The court did not err in sustaining demurrers to the 9th count, since it shows that the tram car worked upon a slope or inclined track, and not upon a hoist, hence, section 1028, Code 1907,, has no application. The court properly sustained demurrers to the 10th count of the complaint. — Woodward 1. Co. v. Curl, supra; C. P. Ry. Co. v. Propst, 4 South. 711. The court properly sustained demurrers to count 9 as amended.- — Bir. R. & E. Co. v. Baylor, 13 South. 793; R. R. Co. v. Dusenberry, 10 South. 274. The court properly overruled demurrers to plea 4. — Mascot C. Co. v. Garret, 47 South. 149; Pioneer M. & M. Co. v. Thomas, 32 South. 216; Bessemer L. I. Co. v. DuBose, 28 South. 380; Worthington v. Goforth, 26 South. 531. The court properly overruled demurrer to plea 8. — 26 Cyc. 1188; Holcomb’s Case, 44 South. 136; M. J. & K. C. B. B. Co. v. Bromberg, 37 South. 395; Ceis v. T. C. I. & B. B. Co., 39 South. 301.</p>

<p> Injury to Passenger. </p> <p>1. Bills of Exceptions; Signing; Time. — Where a special term of court was called for Oct. 28, 1907, to continue two weeks, and it appeared that the order calling the term set down the criminal business to he disposed of during the week beginning Nov. 4, and this cause was tried, and judgment entered Nov. 2, which judgment entry contained a recital that the defendant was to have sixty days from the adjournment of court within which to prepare and present its bill of exceptions, a hill of exceptions signed Jan. 2, 1908, was signed in time.</p> <p>2. Release; Pleading; Avoidance of Defense; Replication. — Where the action was for injury to a passenger and the defense was a settlement and release made with plaintiff, a replication asserting that at the time said settlement was made plaintiff did not have the mental capacity to make it. is a sufficient statement that plaintiff's mind was in such an unsound condition as to render him incapable of making a binding contract.</p> <p>3. Same; Fraud. — It one obtains a settlement of a claim of an injured person when he was in a weak, mental and physical condition resulting from the injuries, and incapable of knowing the extent of his injuries at a time when he was alone and without advisers, knowing of the injured person’s condition, and thus induced and unduly influence him to make a settlement for a sum grossly less than a fair compensation, the settlement would he invalid for fraud.</p> <p>4. Appeal and Error; Harmless Error; Overruling Demurrer.— Where no testimony was offered to support a replication, if it was error to overrule a demurrer thereto, the error was harmless.</p>

<p> Injury to Employe. </p> <p>1. Master and Servant; Injury to Servant; Maintaining Appliances; Delegation of Duty. — The duty resting upon the master to maintain appliances in good repair may he delegated, and the master is not liable to a fellow servant for negligence on the part of another servant to whom the duty to repair is confided, though the master would he liable for negligence in selecting said servant; so it follows that the negligence of another servant charged with the duty of repairing the appliance did not sustain an allegation that the master was negligent in that respect.</p> <p>2. Same; Complaint; Burden of Proof. — A count charging that it was the master’s duty to furnish safe appliances and to keep them in repair and that the master negligently failed to do this, alleges two or more acts of negligence, and puts the burden on the plaintiff to show that the injury resulted from all of the negligent acts or omissions operating together.</p> <p>3. Same; Employer’s Liability Act; Complaint. — A count grounded on subdivision 2, section 1749, Code 1896, should aver the name of the superintendent or that his name was unknown to plaintiff, and if it avers either, the same must be-proven, as charged, and an averment that his name was unknown is not supported by proof that his name was known.</p>

<p>Appeal from Madison Circuit Court.</p> <p>Heard before Hon. D. W. Speaks.</p> <p>"Action for personal injuries by Charles L. Townes against tbe Dallas Manufacturing Company. Plaintiff bad judgment, and defendant appeals.</p> <p>The following counts of the complaint were demurred to:</p> <p>(5) “Plaintiff claims of defendant the sum of $15,000 ■damages, for that heretofore, to wit, on or about the ■6th day of January, 1903, the plaintiff had been and was employed and engaged by the defendant corporation as a helper to the servants and employes of the Saco-Pattee Machine Shop, an independent contractor, who was then and there engaged in setting up and equipping carding machines in the mills of defendant, in said county, under a contract with the defendant whereby said machine shops were to erect, equip, and set up certain carding machines. And the plaintiff was then and there by the direction of the defendant, through its superintendent, engaged as a helper in setting up said carding machine under the immediate orders and direction of one Jackson,, who was then and there in the employ of said machine shop. And the plaintiff, while in the proper discharge of his duties as such helper under the said orders and direction of the said Jackson, had his left hand caught in and between the clothing of the cylinder of one of the carding machines, which was composed of fine, sharp wires, and the clothing of the slats of said carding machine, which was also composed of fine, sharp wires, and his hand was thereby so crushed, mangled, torn and bruised that he was confined to his bed, etc. (Here follows list of injuries and damages.) And the plaintiff avers that at the time of said injuries it was about 6 o’clock in the afternoon, and was dark, and the lights had gone out, or so nearly out, as to render it almost impossible to distinguish objects in the room. And the plaintiff avers that the injuries complained of were caused by the negligence of the defendant or its servants or agents in permitting the lighting apparatus,, or lights, which were electric lights, the electricity for which wfas generated on the premises, to become so defective as to render it unsafe for servants of the Saco-Pattee Machine Shop and for the plaintiff to work around said machinery after dark.”</p> <p>(6) This count alleges the same relation as that alleged in count 5, with the additional allegation that “while engaged in his duties as such helper in said carding room, by the invitation and direction of the defendant, and about 6 o’clock in the afternoon, the electric lights in said carding rooms, the electricity for which was generated upon the premises by the servants and agents of the defendant went out, or so nearly out as to render it difficult to distinguish objects in the said carding room. (Here follows the manner of the injury and the injuries complained of, as set out in count 5.) And plaintiff avers that said injury was caused by the negligence of the servant or agent of the said defendant in charge of the said electric light and the electric lighting apparatus which lighted said carding room, in permitting the same either said lighting apparatus or said light, one or both, to become so defective that they failed to give sufficient light for plaintiff to discharge his duties in said carding room, and so defective that they frequently went out, or died down low.”</p> <p>Count 8 alleges that plaintiff by invitation or direction of the defendant, through its superintendent was engaged in the work upon the premises under the conditions and for the purposes as alleged in count 5, with the injuries and their result as set out therein. The negligence ascribed to the defendant, its agents or servants, was that the defendant or its agents or servants either failed to furnish a proper and suitable plant for the generation of electricity used for lighting said premises, or failed to keep said plant in a reasonably safe and proper condition, so that the same would generate suitable and sufficient light to enable plaintiff and other employes of said Saco-Pattee Machine Shop, engaged in and about the fulfillment of the contract above referred to, to perform their duty.</p> <p>Demurrers were interposed to these counts, raising the points discussed in the opinion and also raising other points not discussed.</p> <p>The amendment Avorked a departure. — Union Pac. By. Co. v. Wiley, 158 TJ. S'. 285; A. & A. B. B. Co, v. Leadbeatter, 92 Ala. 326; King v. Avery, 37 Ala. 173; 25 Oyc. 1308. The complaint did not shoAV a duty OAving by plaintiff in reference to the lights nor a breach of that duty.- — 85 Am. St. Rep. 618; 101 Fed. 526; 1 L. R. A. (N. S.) 283. The independent contractor and its employes had no claim upon the defendant to- be fur-; nished with artificial light for the prosecution of the Avork. — Mayor, etc., v. McCary, 84 Ala. 649; Yarbrough v. Ala. Mid. By. Co,, 94 Ala. 497; Ala. Mid. By. Co. v. Martin, 100 Ala. 511. The plaintiff assumed the risk of injury.- — Sloss- Sheffield S. & I. Co. v. Knowles, 129 Ala. 410; O’Brien v. Tatum, 84 Ala. 186; Henline v. B. & P. B. B. Co., 147 Mass. 136. The risk was incident to the service. — Conway v. Furst, 32 Atl. 380; Kennedy v. Manhattan, 145 N. Y. 288; Gulf B. B. Co. v. Jackson, 65 Fed. 48. The defendant was entitled to the affirmative charge on the evidence. — Patton v. T. & P. By. Co., 179 U. S. 663; L. & N. v. Allen, 78 Ala. 494; Southioorth v. Shea, 131 Ala. 419. The failure of the light Avas not the proximate cause of the'in jury. — Pryor v. L. & N., 90 Ala. 32; 21 A. & E. Ency. of Law, 485; Western By. Co. v. Mutch, 97 Ala. 194; Arnold’s Case, 80 Ala. 600.</p> <p>The amendments did not constitute a departure.— Townes v. Dallas Mfg. Go., 154 Ala. 612; L. & N. v. Wood, 105 Ala. 561; Simpson v. M. & G. R. R. Go,, 66 Ala. 85; G. of G. v. Foshee, 125 Ala. 222; A. G. G. & I. Go. v. Heald, 45 South. 686; Sec. 5367, Code 1907. Under facts averred in the complaint, • defendant owed plaintiff a duty as to the light. — Dallas M. Go. v. Townes, 41 South. 988; Bennett v. R. R. Go., 102 U. S. 577; Sloss S. & 1. Go. v. Tilson, 141 Ala. 152; West v. Thomas, 97 Ala. 632; Bir. M. & G. Do. v. Shelton, 149 Ala. 465. The defective lights were the proximate cause of the injury. — Western Ry. Go. v. Mutch, 97 Ala. 194; 4 Thomp. Neg. sec. 3857; Jones v. Gooh, 128 Ala. 217; L. & N. v. Quick, 125 Ala. 553; Holmes v. Bir. South., 140 Ala. 208; Mouton v. Tj. & N., 128 Ala. 537. The plaintiff has a right to rely on the attempted repairs by Wise and his assurance that the lights were all right.— Eureka Go. v. Bass, 81 Ala. 200; Briggs v. Tenn. G. I. & R. R. Go., 109 Ala. 287; Southern Ry. Go. v. Guyton, 122 Ala. 231. The question as to whether plaintiff was guilty of contributory negligence, was one for the jury. —Authorities supra. Counsel discuss the refusal to grant a new trial, and insist that the evidence was sufficient to sustain the judgment.</p>

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. William Jackson.</p> <p>Action by John Granger against tbe United States Oast Iron, Pipe & Foundry Company, for personal injuries. From tbe judgment for plaintiff, defendant appeals.</p> <p>The following pleas were filed by defendant: (2) “The plaintiff himself was guilty of negligence which proximately caused or contributed to cause his alleged injuries, in that he negligently occupied a position of danger under or near said crane.” (3) Same as 2, down and including the words “said crane,” and adds: “By which core bars Avere being hoisted, and where a core bar Avas likely to strike him if one should fall while being hoisted, and Avhile negligently occupying said position a core bar fell while being hoisted and struck the plaintiff, whereby he was injured.” (4) “The plaintiff is guilty of negligence which proximately caused or contributed to cause his alleged injuries, in that he negligently occupied a position under said crane when he knew that' the core bars or other objects which were being hoisted would be likely to slip or fall, and were likely to strike him if they should fall.” (5) “The plaintiff himself was guilty of negligence which proximately caused or contributed to cause his alleged injuries, in that he negligently occupied a position of danger under or near the said crane, Avhen there was obviously a safer way for him to do his work which he was employed to do, by taking a position out of the path of said crane and at a point Avhere objects falling could not strike him.”’</p> <p>The 2nd, 3rd, 4th and 5th pleas come up to the requirements of the Code. — Sec. 3296, Code 1896; M. & O. R. R. Go. v. Graham, 94 Ala. 545, and authorities cited. The court erred in sustaining plaintiff’s objection to the question to Avitness Chillison, “You thought it was all right?” The court erred in refusing to allow the defendant to ask certain questions of this same witness as to plaintiff’s knowledge of the business. — Southern Oar & F. Go. v. Bartlett, 137 Ala. 234. Counsel discuss other assignments of error relative to evidence, but without further citation of authority. The court erred in giving the affirmative charge for appellee, and in refusing like charge to appellant. — 1 Lahatt, sec. 414; 2 Labatt, sec. 670; 72 111. 138; 97 Am. Dec. 240; M. & O. R. R. Go. v. Graham, supra; Pioneer M. & M. Go. v. Thomas, 133 Ala. 279; Bir. F. & M. Go. v. Gross, 97 Ala. 220; Bir. R. M. Go. v. Rookholct, 143 Ala. 115.</p> <p>The court did not err in permitting the witness Yeitch to state whether or not a hook like the one in question got out of fix at once. — Buclcalew v. Tenn. Go., 112 Ala. 146; 'Birm. F, & M. Go. v. Gross, 97 Ala. 220; Ma. S. & W. Go. v. Wrenn, 136 Ala. 484; Williamson I. Go. v. Mo-Queen, 144 Ala. 265; Tuttviler G. O. & I. Go. v. Farrington, 144 Ala. 157. The court under the evidence properly gave the affirmative charge for the plaintiff. — Fountain v. Ware, 56 Ala. 558; Ala. G. L. 1. Go. v. Mobile Go., 81 Ala. 331. Counsel cite a number of cases showing that the doctrine of res ipsa loquiter applies.</p>

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon.' William Jackson.</p> <p>Action by Robert Kilgore against the New Connells■vilie Coal & Coke Company. From a judgment for plaintiff, defendant appeals.</p> <p>The cause was tried on the following counts:</p> <p>(3) “Plaintiff claims of the defendant the sum of $10,000 damages, for that, to wit, heretofore, on March 6, 1908, and prior thereto, the defendant was a body corporate, and engaged in the business of mining coal at or near Connellsville, in Jefferson county, Ala.; and plaintiff avers that on said date he was in the employment of defendant in said coal mine as a miner and laborer in and about the operation of said mine, and while so employed he was engaged in cutting a brace through or opening between the air shaft and slope; and plaintiff avers that while in the discharge of his duties, and in the line and scope of his employment as such miner and laborer, it was necessary for him to be near the said air shaft to give signals to the engineer in charge ■of the hoist in said shaft in and about the-hoisting of timbers to the place where plaintiff was at work. Plaintiff further avers that in said air shaft there was a skid-way built of timbers on which a bucket ivas operated for the purpose of hoisting coal and timber and other things in and out of the mine, there being a rope attached to said bucket from a hoisting engine on top of the ground, and that signals were given to the engineer in charge of said engine by means of a wire connected with said engine room and extending down into the mine. Plaintiff avers that while near said shaft, having timbers hoisted to his work, said bucket jumped off, or was jerked off, said skidway, and caught plaintiff between the timbers of said mine, breaking, mashing, and bruising his right shoulder cutting, mashing, and bruising his face, and otherwise bruising, injuring, and lacerating his body severely, injuring him internally, which resulted in permanent injuries to his right shoulder and arm; that he has paid out or obligated himself to pay out large sums of money for medicine, medical attention, nursing, and proper diet; that he has lost his earning poAver; that he was confined to his bed for a long space of time; that he has sustained great mental agony and physical suffering, and was made sick, sore, and lame; that he was permanently injured and disabled. And plaintiff avers that his said injuries were proximately caused by reason of a defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the defendant, and that said defect consisted in this: That the timbers out of which the skidway was built were not evenly joined together, and the said skidAvay Avas rough and uneven, thereby proximately causing said bucket to jump out of said skidway and injuring the plaintiff as aforesaid. And plaintiff avers that said defect arose from, or had. not been discovered or remedied owing to, the negligence of defendant, or of some person intrusted by the defendant with the duty of seeing that the ways, works, machinery, or plant were in proper condition.”</p> <p>(4) Same as 3, except that the defect is alleged to have consisted in the fact that the bucket used in lowering and hoisting timbers was broken, and the edges thereof rough and uneven, thereby proximately causing said bucket to catch at the joints of said skidway and jump out, or be jerked out, of said skidway.</p> <p>(5) Same as 3, except that the defects are alleged to consist in this: “That the signal wire from the bottom of the mine to the engine room was rough, crooked, and knotted, thereby preventing signals being instantly transmitted to the engineer, and thereby proximately causing said bucket to jump out of said skidway when it caught in said skidway, and injuring plaintiff,” etc.</p> <p>(6) Same as 3, except that the defect is alleged to have consisted in this: “That an iron band around said bucket, and upon which said bucket slid up and down, was broken, thereby proximately causing said bucket to catch in said skidway, and jump out, or be jerked out, of said skidway.”</p> <p>The following pleas were filed to the complaint originally :</p> <p>(5) “As a further answer to the first count, defendant says that the plaintiff’s alleged injuries were the proximate result of his own negligence, which consisted in this: That he gave a signal to the hoisting engineer to pull the bucket out of the shaft at full speed, well knowing and obvious of the fact that said bucket was apt to jump from said skidway and injure him at the place alleged.”</p> <p>(7) “That plaintiff’s said injuries were the proximate result of the negligence of his fellow servant, in that said timber was insecurely and negligently loaded on said bucket, in that it was not tied or fastened, and by reason thereof said timber became loose, causing the injury as aforesaid by falling against or upon plaintiff, as a proximate result of the said negligence of plaintiff’s fellow servant, viz., Coe, in loading said timber.”</p> <p>(9) “That plaintiff was guilty of negligence which proximately contributed to his alleged injuries in this: That he had control and direction and aided in the construction of said skidway, signal apparatus, and place wherein he ivas injured, and that said unsafe place or condition thereof were known and obvious to the plaintiff, and that plaintiff negligently remained in the service of the defendant after such knowledge.”</p> <p>All these pleas were filed to the first and second count.</p> <p>(C) “That plaintiff voluntarily went to the place where he is alleged to have been injured near or at said skidway, when he knew that the timber on the bucket was approaching and that it would probably strike plaintiff. Nevertheless he negligently remained in such dangerous place, and he thereby assumed the risk of being injured when the said bucket containing the timber reached the place or point where he was standing.”</p> <p>(D) “Plaintiff ordered one of his fellow servants, viz., T. E. Coe, to go to the bottom of said mine and there load timbers or timber on said bucket to be hoisted to the place where plaintiff was at work; that such order was given with the knowledge that it was dangerous and unsafe to so hoist such timbers from the bottom of the shaft; and that the said fellow servant, in conforming to the said order of the plaintiff, loading said timber on said bucket to hoist said bucket; and the said engineer hoisted said bucket on said skidway at a great and dangerous rate of speed, and the timber, being improperly and negligently loaded on said bucket as aforesaid, became loose and swung around causing said bucket to jump from said skidway, injuring the plaintiff as aforesaid.”</p> <p>The last two pleas were filed to counts 1, 2, 3, 4, 5, and 6.</p> <p>The following demurrers were filed to the pleas:</p> <p>(5) “Because said plea fails to show wherein the act of the plaintiff proximately contributed to the injury complained of. Because said plea fails to set out facts which would make it obviously dangerous to give signal to the hoisting engineer to pull the bucket out of the shaft at full speed. Because said .plea fails to show wherein the pulling the bucket out of the shaft at full speed was obviously dangerous.”</p> <p>(7) “Because said plea fails to allege in what way the timber, being loose, proximately caused the injuries complained of. Because the averments are a mere conclusion-of the pleader, unsupported by the facts alleged. Because said plea fails to give the name of the fellow servant Avho caused the injury complained of. Because it does not appear from said plea that a fellow servant of the plaintiff did any act which in any manner contributed to or caused the injury complained of.”</p> <p>(9) “Because said plea fails to allege that the plaintiff continued in the service or employment of defendant after he knew of the defects complained of, and appreciated the danger thereof, for an unreasonable time. The averments in said plea to the effect that the plaintiff was guilty of contributory negligence are mere conclusions of the pleader.”</p> <p>(10) “Said plea fails to aver that defendant provided a reasonably safe place in which the plaintiff could do his work. Because the delegation of the maintenance of the place where the plaintiff worked to a competent person is no excuse or defense for not furnishing plaintiff with a reasonably safe place in which to work.”</p> <p>(C) “Because it does not allege that there was any other place at which plaintiff could have done his work ■under Ms employment. Because it does not allege that there was a safer place for plaintiff to do his work. It is not shown that the risk assumed by the plaintiff was one of the risks reasonably incident to his employment. Because it is not shoivn that plaintiff knew of and appreciated the danger to which he was exposed.”</p> <p>(D) “Because it does not appear that the injury resulted proximately from any fault or negligence on the part of the plaintiff.”</p> <p>Additional pleas to the third count are as follows:</p> <p>(2) “Plaintiff was guilty of negligence which proximately contributed to his alleged injury in this: That he had a full knowledge of said defect, and remained in the employ of defendant for an unreasonable length of time with such knowledge.”</p> <p>(4) “Defendant says the plaintiff ought not to recover in this action, because his injuries were the proximate results of his failure to obey a rule or instruction of the defendant in this: That he was not to load or cause to be loaded any timbers on said skidway at the bottom of said mine; that plaintiff, notwithstanding his knowledge of such rule, caused the bucket on said skidway to be loaded with timber at the bottom of said mine and improperly fastened in said bucket; hence plaintiff’s injuries.”</p> <p>(5) “Defendant says that plaintiff’s alleged injuries were the proximate result of his own negligence in this: That defendant stood by or near said skidway, knowing that it was in an uneven and rough condition, and that notwithstanding such knowledge plaintiff so exposed himself and was injured.”</p> <p>(7) “Defendant says that plaintiff, with full knowledge and aware of the defects alleged, did continue and remain in the employ of the defendant for an unreasonable length of time thereafter.”</p> <p>The following demurrer was filed to additional plea 2: “Because remaining in the service and employment of defendant with full knowledge of the defects complained of is not negligence per se, and no facts are stated that make it so.”</p> <p>To additional plea 4: “Because it seeks to set up a rule of the defendant, but fails to aver that plaintiff had knowledge of the same, and because it does not appear that what the plaintiff disobeyed was a rule or an instruction.”</p> <p>To the additional fifth plea: The grounds assigned to 2 and 4, and the additional ground that, for aught that appeared in said plea, plaintiff’s duty required him to be where he was, because it is not averred or shown that plaintiff negligently exposed himself to danger, and because it does not appear that plaintiff appreciated the danger of standing where he was injured.</p> <p>To additional plea 7 the same demurrer as filed to additional plea 2.</p> <p>The additional pleas to the fifth count were as follows :</p> <p>(1) “That plaintiff constructed and had control and superintendence of the construction and placing of said signal wire, and by reason of his contributory negligence said wire became crooked and knotted, which said contributory negligence proximately caused the injury alleged.”</p> <p>(2) “That it was the duty of plaintiff under his employment to see that said signal wire was in good condition, and as a proximate consequence of the failure of the plaintiff to perform his duty such alleged defect arose.”</p> <p>(3) “That at the place where plaintiff was injured there was no place fixed on said wire for signaling, and the custom was to do all the signaling from the top and bottom of the shaft, and that the plaintiff should have used the accustomed places to do his signaling, and that by reason of the failure to signal from the accustomed place, and the place fixed for such purpose, the plaintiff thereby caused his own injuries as alleged, well knowing the danger he incurred by so doing.”</p> <p>The demurrers interposed to these pleas were as follows:</p> <p>(2) “Because it does not allege that the plaintiff was intrusted by the master with the duty of seeing that the ways, works, machinery, or plant was in proper condition. Because it does not allege in what way plaintiff failed to perform any duty with which he was intrusted by the master. It does not allege that any failure of duty by the plaintiff was the proximate cause of his injury.”</p> <p>(1) “Said plea fails to aver that said signal wire was ever in good condition. It fails to allege any fact from which contributory negligence on the part of the plaintiff might be inferred. It fails to aver that plaintiff whs charged with the duty of seeing that the signal wire was in proper condition.”</p> <p>(3) “Because said plea is not an answer to the count.”</p> <p>Plea A was as follows:</p> <p>“For further answer to the third, fourth, fifth, and sixth counts, defendant says that said skidway, bucket, and signal wire alleged to be defective were only temporary in their nature, and were not a part of the permanent ways, works, machinery, or plant of the defendant.”</p> <p>The following charges were refused to the defendant;</p> <p>(18) “I charge you, gentlemen of the jury, that there is no evidence that the plaintiff was acting in the scope of his duties in giving signals at the time and place he was injured, and you cannot find for the plaintiff under the third, fourth, fifth, and sixth counts of the complaint.”</p> <p>(28) “I charge yon, gentlemen of the jury, that there is no evidence that the defendant knew of the defects alleged and set out in counts 3, 4, 5, and 6 of the complaint, and you cannot find for the plaintiff under said counts.”</p> <p>(26) “If the jury believe from the evidence that the alleged uneven joint in the skidway was not a defect in the ways, works, machinery, or plant of the defendant, then you cannot find for the plaintiff under count 3 of the complaint.”</p> <p>(31) Affirmative charge as to the fourth count.</p> <p>(G) Affirmative charge as to the sixth count.</p> <p>(H) Same as to the fifth count.</p> <p>(E) Affirmative charge as to the third count.</p> <p>No brief came to the Reporter.</p> <p>No brief came to the Reporter.</p>

Heard before Hon. H. A. Si-iarpe. Action by John McLain against the Birmingham Railway, Light & Power Company for personal injuries and injury to a horse and vehicle. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Thomas W. Wert. Action by ■ John Davener against tbe Louisville & Nashville Railroad Company for injuries sustained in a crossing accident. Judgment for plaintiff, and defendant appealed.

Heard before Hon. A. O. Lane. Action by Walter H. Johnson against the Louisville & Nashville Railroad Company for injury. From a judgment for paintiff, defendant appeals. The pleadings are fully discussed in the opinion. The following charges were refused to the defendant: (1) Unnecessary to be set out.

<p> Carrying Concealed Weapons. </p>

<p>Appeal from Hale Circuit Court.</p> <p>Heard before Hon. B. M. Miller.</p>

<p>Appeal from Clay County Court.</p> <p>Heard before Hon. W. J. Pearce.</p>