Volume 163 — Alabama Reports

Heard before Hon. H. A. Pearce. Action by Guilford & Deal against the Western Union Telegraph Company for damages for failure to deliver telegram. Judgment, for defendant, and plaintiffs appeal. The facts are sufficiently stated in the opinion.

Heard before Hon. B. M. Miller. Action by Octavia Sledge against the Western Union Telegraph Company for failure to promptly deliver telegram. Judgment for defendant, and plaintiff appeals. The message was addressed to Mrs. Ii. C. Jones, a ■ sister of Mrs. Sledge, and directed 'her to meet her at the depot at Woodstock a.t a certain time. The message was not delivered until the day after.

Heard before Hon. William Jackson. Action by Willie Jackson against the Western Union Telegraph Company for damages for delay in the delivery of a message. Judgment for plaintiff, and defendant appeals. The complaint was in the-following language: (1) “Plaintiff claims of the defendant the sum of fl,000. damages.

Heard before Hon. A.' D. Sayre. Action by W. W. Hill against tbe Western Union Telegraph Company for delay in delivery of message. -Judgment for plaintiff and defendant appeals. Tbe form of tbe action is ex contractu and tbe damages claimed are based upon mental anguish.

Heard before Hon. B. M. Miller. ■ Action by Madie Peagler against the Western Union Telegraph Company for failure to deliver telegiam. Judgment for plaintiff and defendant appeals. Plaintiff was not entitled to recover damages for mental anguish..— W. TJ. T. Go. v. Northcutt, 48 South 553; Same v. Westmoreland, 151 Ala. 319; Saone v. Ayres, 31 Ala. 391; Same v. Sledge, 153 Ala. 291; Same v. Long, 148 Ala. 202; Same v. Croker, 135.Ala. 492; Saone v-. McMorris, 48 South. 354.

<p> Injury to Passenger. </p> <p>1. Carriers; Injury to Passengers; Instructions. — An instruction that plaintiff would be entitled to recover if the car was negligently started, fails to hypothesize that the starting of the car was the proximate cause of the injury, and its giving was erroneous.</p> <p>2. Sam.e. — Where the action was for injuries to a passenger alighting from a starting car, an instruction predicated upon increasing the speed of the car was properly refused as inapplicable.</p> <p>3. Same; Jury Question.- — -If the motorman of defendant saw that plaintiff whs alighting and started the car with a jerk and injured plaintiff, it was for the jury to determine whether the starting of the car was wanton.</p> <p>4. Charge of Court; Oral Charge; Construction. — The oral charge of the court must be construed as a whole.</p>

Heard before Hon. A. O. Lane. Action by Charles H. Dennison against the Birmingham Railway, Light & Power Company, for damages for injury to him while a passenger. There was judgment for plaintiff, and defendant entered a motion for a new trial, which motion being overruled defendant appealed.

Heard before Hon. Charles A. Senn. Action by T. S. Weathers against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. O. Lane. Action by John J. Savage, a passenger, against the St. Louis & San Francisco Railroad Company, for injuries received in a wreck. Judgment for plaintiff and defendant appeals. Counsel discuss the assignments of error relative to evidence, but. without citation of authority. They insist that the court erred in refusing charges requested by appellant, and cite in support thereof. — Tinney v. G. of Gq. Go., 129' Ala. 523; Western Ry.

Tallapoosa Circuit Court. Heard before Hon. B. M. Miller. Action by H. M. Carleton, as administrator of Joseph Umphrell, against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. A. O. Lane. Action by J. C. Anderson against tbe Birmingham Railway, Light and Power Company. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear in the opinion of the court.

Heard before Hon. Saffold Bek.net. Action by Guy J. Hartwell against the Mobile Light and Railroad Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Samuel B. Browne. Action by Block Bros., as copartners,' against the Southern Hardware & Supply Company and auotber. From a judgment against tlie defendant named, it appeals. The pleas interposed- by the Ogburn-Griffin Grocery Company are the general issue and several special pleas not necéssary to be set out. The Southern Hardware & Supply Company filed only the general issue.

Appear from Houston Circuit Court. Heard, before Hon. H. A. Pearce. Action by I. S. Carroll against tbe Central of Georgia Railway 'Company. Judgment for plaintiff,^ .'and defendant appeals. It is deemed unnecessary to set out tbe pleadings.

Heard before Hon. Thomas W. Wert. Action by A. P. Bragan, as administratrix, against the Birmingham Ry. Light & Power Company, for damage to property, by the change of the grade in a street, and the building of a railroad thereon.

Heard before Hon. William Jacicson. Action by W. D. Baker against the Atlanta, Birmingham & Atlantic Railway Company, and others, for damage to crop. Judgment for defendant and plaintiff appeals. — The defendants were liable for the doing of an illegal and tortuous act by another which was according'to the 1st and 2nd counts of the complaint the acts of the defendant. — A. Al. B. R..

Heard before Hon. H. B. Foster. Action by W. A. McCalla and another against the Louisville & Nashville Railroad Company.' Judgment for defendant and plaintiff appeals. — The cause of action was not barred by the statute of limitation. — 25 Cyc. 1136; Huntsville v. Ewing, 116 Ala. 576; E. & P. Mfg.

Heard before Hon. Saffold Bernby. Action by Alex McKay against the Mobile Light & Railway Company, for damages for killing a mule. Judgment for plaintiff and defendant appeals. — The court erred in overruling demurrers to the complaint. — Glass v. M. & G. B. B. Go., 94, Ala. 581; Montgomery v. Ala. G. S., 97 Ala. 307; L. & N. v. Hairston, 97 Ala. 352; Bir. B. L. & P. Go. v. Jones, 153 Ala. 165.

Heard before Hon. Samuel B. Browne. Action by O. Dickens against tbe Southern Railway Company for killing stock. Judgment for plaintiff and defendant appeals. — The court will look to the transcript and papers sent up as prima facie evidence of what happened and all that happened in the justice court. — Woolf v. Parham, 18 Ala. 441. The summons was never issued. — Section 2667, Code 1896; West v. Ingalls, 101 Ala, 510; see also 42 C. C. A. 154; 26 N. Y. Supp. 98; 8 How.

Heard before Hon. Jopin Pelham. A. J. Williams sued the Central of Georgia Railway Company, first in the justice court, for killing a mule. There was a judgment there for plaintiff, and defendant appealed to the circuit court, where judgment was also rendered for plaintiff, and defendant brings this appeal. • — This case was not properly triable by jury. — Local Acts 1898-9, p. 196.

■Heard before Hon. Samuel B. Browne. Action by the S-ullivan Timber Company against the Louisville & Nashville Railroad Company. From the judgment, plaintiff appeals. The facts in this case may be found in a former report of the case under the style of Louisville & N. R. R. Go. v. Sullivan Timber Go., 138 Ala. 379, 35 South. 327.

Heard before Hon. Samuel B. Browne. .Action by Prank S. Greene against the Louisville & Nashville Railroad Company, for damages, for the destruction of a carload of lumber by fire. Judgment for defendant and plaintiff appeals. — The complaint was not subject to- the demurrer interposed.

Heard before Hon. J. C.' Richardson. Action by Irby T. Smith against the Louisville & Nashville Railroad Company. Judgment for plaintiff,, and defendant appeals.

Heard before Hon. Samuel B. Browne. Action by the Stonewall Insurance Company against the Southern Railway Company, for the destruction of property by fire, insured with such company and for which it had paid the insured.

Heard before Hou. W. W. Haralson. Action by H. M. Long & Son against the N. C. & St. L. By., for failure to deliver freight. Judgment for plaintiff and defendant appeals. — The stipulation in the bill of lading was a reasonable one, and binding upon the shipper. — Moore on Carriers, p. 332; 4 Elliott on Bailroads, sec. 1512; Broadxoood v. Southern Express Go., 41 South. 769; see also H. &N. 867; 180 IT. S. 49. — Thirty days was unreasonable. — Gtcyn-Earper Mfg.

Heard before Hou. Samuel B. Browne. Action by E. H. Britton, against the Louisville & Nashville Railroad Company, for failure to deliver certain freight. Judgment for plaintiff and defendant appeals. — The defendant was clearly entitled to the affirmative charge-as no authority ivas shOAvn on the part of Johnson to receive the goods. — L- & N. v. Britton, 39 South. 586; Bolling v. Kirby, 90 Ala. 222; Butler v. Jones, 80 Ala. 436.

Heard before Hon. John H. Miller, Special Judge. Action by S. E. Cox as administratrix, against tbe Birmingham Railway, Light & Power Company, for causing the death of her intestate. There was judgment for plaintiff, and on motion the trial court set aside the judgment. From this order, plaintiff appeals. — It appears that the defendant was stimulated by the verdict to a' diligence which it should have exercised before the trial.

Circuit Court. Heard before Hon. W. W. Haralson. Action by Albert J. Smith, as administrator of Robert Taylor Smith, deceased, against the Southern Railway Company, for damages for the death of the deceased. Prom a judgment for plaintiff, defendant appeals.

Heard before Hon. A. A. Coleman. Action by William F. White against the Bepnblic Iron & Steel Company for a personal injury resulting from falling into a.hole from which weighing scales which had formerly occupied it had been removed and the hole left unguarded without lights or other signals of danger. From a judgment for plaintiff, defendant appeals.

Heard before Hon. H. A. Sharpe. , Action by W. C. Morris, administrator, against the Birmingham Railway, Light & Power Company for wrongful death of a child on the track. Judgment for plaintiff, and defendant appeals.

Heard before Hon. S. H. Sprott. Action by Letitia E. Stanford as administratrix against the St. L. & S. P. R. R. Co., for damages for causing the death of her intestate in a railroad crossing accident. Judgment for defendant and plaintiff appeals. ■ — The court erred in giving charge 1. — Brown v. L. & N., 121 Ala. The court erred in giving charge 6. — ¡{¡Hand v. The State, 52 Ala. 322; 92 Ala. 285; 115 Ala. 13; 127 Ala. 37.

Heard Before Hon. A. A. Evans. Action by Cora Martin as administratrix, against the Union Springs & Northern Railroad Company, for the death of her intestate, while walking along the side of defendant’s track. Judgment sustaining demurrer to the complaint and plaintiff appeals.

Heard before H'ou. William Jackson. Action by W. L. Ambrose, as administrator, against the Alabama, Great Southern Railway Company, for damages for the death of his intestate. Judgment for plaintiff and defendant appeals. — Counsel insist that under section 4207, Code of 1896, as amended by General Acts 1903, p. 182, the court improperly sustained demurrers to defendant’s plea to the jurisdiction. They also cite in this connection sec. 1751, Code 1896.

Heard before Hou. B. M. Miller. Action by A. P. Dobbins against the Western Union Telegraph Company. From a judgment for defendant, plaintiff appeals.

Heard, before Hon. Samuel B. Brown. Action by Thomas Ott, by his next friend, against the Weinacker Ice & Fuel Company. Judgment for plaintiff, and defendant appeals. The facts are sufficiently stated in the opinion.

Heard before Hon. C. C. Nesmith. Action by Millage Briggs against the Tennessee Coal, Iron & Railroad Company. Judgment for plaintiff, and defendant appeals. The damages are alleged to have been caused by slipping through a trestle, -and the negligence is alleged to be a defect in the ways, works, etc. The second count alleges the injuries to have been caused by a negligent order, to which plaintiff was bound to conform, and to which he did conform.

Heard before Hon. A. O. Lane. Action by Dewitt Fletcher, pro ami, against the Tennessee Coal, Iron & Railroad Company for damages, From a judgment for defendant, plaintiff appeals. The first count is by a license for damages, and the allegations of negligence are general. The second count was charged out.

. Heard before Hon. Saffold Bekney. Action by John McNerney against Charles L. Huyck for injuries received while engaged in doing the work for which he was employed. Judgment for defendant, and plaintiff appeals.

Heard before Hon. Thomas W. Coleman, Jr., Action by W. J. Bean, an employe, against the Western Steel, Car & Foundry Company, for damages to personal injury.

''Appeal from Birmingham City Court. ' Heard before Hon. C. C. Nesmith. Action by Tobe Jones, an. employe, against the Tennessee' Coal, Iron & Railway Company, for ' injuries caused by an insecurely fastened furnace door falling on him. From a judgment sustaining demurrers to the complaint plaintiff appeals.

Heard -before Hon. Thomas W. Davis, Special Judge. Trespass and trover by William I). Dunn and others, against the C. W. Zimmerman Manufacturing Company. For former report of this case see 151 Ala. 435; 44 South. 533. From a judgment for plaintiff: defendant appeals. The court erred in admitting the tax deed in evidence.

Clair Circuit Court. Heard, before Hon. A. H. Alston. Action by S. J. Dunklin against W. N. Maddox, individually and as surviving partner of Wait & Maddox. From a judgment for plaintiff, defendant appeals. The evidence tended to show that the mules, together with others, had been mortgaged by W. M. Cochran and by Cochran & Webb to J. C. Street.

<p> Trespass for Gutting Trees. </p> <p>1. Trespass; Complaint; Construction.-. — Where' a complaint alleges damages and for knowingly and willfully cutting and hauling off and for converting into stock certain timber thereon, and for cutting and hauling off certain other timber, and for cutting up and converting into stock, and hauling off certain trees which had been already cut, it is in trespass quare clausum fregit, and not for the statutory penalty of cutting trees.</p> <p>2. Same; Amendment. — Under section 5367, amendments to a complaint by striking out or adding statements of -causes of action which might have been included in the originál complaint, intended merely to correct the description of the subject-matter so as to meet plaintiff’s proof, are proper and should have been allowed.</p>

Heard before Hon. A. A. Coleman. Action by W. J. Garrett against E. L. Higdon, as sheriff, for conversion of personal property. Judgment for plaintiff and defendant appeals. Plaintiff was estoped to assert that she retained title to the goods. — Tobias v. Josiah Morris & Co., 126 Ala. 550. The verdict was excessive. — Ryan, et al. v. Young, 147 Ala. 669.

Heard before Hon. Samuel B. Browne. Action by Thomas J. Eisely against the Wilmer Lumber Company, in trespass and trover, for the cutting and removal of timber from certain lands. Judgment for plaintiff and defendant appeals.

Heard before Hon. S. L. Brewer. Robert A. Gandy sued Charles Cowart in trover for converting certain crops, and in case, for the destruction of his mortgage lien under the same. Upon the admission of certain evidence, plaintiff took a nonsuit with bill of exception. The landlord’s lien cannot be shown under the genera 1 issue. It must be specially pleaded.- — -S'ec. 5331, Code 1907, and cases cited.- — Petty v. Dill, 53 Ala.. 641. No brief came to the Reporter.

Heard before Hon. A. H. Alston. Action by T. J. Mann against. John A. Darden and others. From a judgment for plaintiff, defendants appeal.

Heard before Hon. J. J. Bat. Action by Houston Bros, against M. Garden. From a judgment for plaintiffs, defendant appeals. -The action was for tlie taking of a horse, and the defense attempted to be pleaded was that the taking was done under a bill of sale retaining title to the horse, etc. The defendant also offered to file a plea of set-■off, which the court refused to allow; but this effort is shown only by the record, and not by the bill of exceptions.

Heard before Hon. W. W. Quarles, Special Judge. Action by Josh Dixie against W. C. Harrison. From a judgment for defendant, plaintiff appeals. The special pleas are as follows: “(3) That the plaintiff voluntarily surrendered the mule, for which damage is now sought, to the defendant. (4) The plaintiff voluntarily surrendered possession of the mule for which damage is now sought to the defendant, or the agent of the defendant.

Heard before Hon. S. L. Brewer. Action by D. H. Riddle against George Blair. Judgment for defendant, and plaintiff appeals. The pleadings and the facts will be found set out in a former report of this case in 148 Ala. 461, 42 South. 560.

Heard before Hon. S. L. Brewer. Action by Mary L. Floyd against R. E. Brown and others, in trespass quare clausum fregit vi et armis. Judgment for plaintiff and defendant appears. An administrator cannot be made liable in bis representative capacity for a tort. — Daily v. Daily, 66 Ala. 266; Shorter v. TJrquhart, 28 Ala. 360; Spottsioood v. Bentley, 132 Ala. 266; 11 A. & E. Ency. of Law, 912.

Heard before Hon. H. A. Pearce. Action by M. E. Carmichael against the United States Fidelity & Guaranty Company. Judgment for defendant, and plaintiff appeals.

Heard before Hon. W. J. Pearce. Action in case by J. T. Bell against tbe Haynes Mercantile Company and others for destruction of a lien. From a judgment scetting aside the judgment for defendants, and granting plaintiff a new trial, defendants appeal. Affirmed. Plaintiff had procured a judgment against M. N. & G. W. Warren before a justice of the peace in Clay county, which was registered in the office of the probate court of that county.

Heard before Hon. John H. Disque. Action by John Hicks against J. K. P. Beard. Prom a judgment for plaintiff, defendant appeals. The first count is as follows: “The plaintiff claims of defendant $1,000 damages for wrongfully obstructing a certain alley in the city of Gadsden. And plaintiff avers: That he is the owner of a certain lot in the city of Gadsden, it being the lot on which plaintiff resides with his family.

Heard before Hon. D. W. Speake. Action by -Joe Scheuermann, pro ami, against William Scharfenberg, for damages for being shot by a spring gun in an attempt to burglarize a store. Judgment for defendant and plaintiff appeals. The defendant was liable in this case. — Simpson v. The Statej 59 Ala. 14; State v. Blair, 29 L. B. .A. 154. It follows that the demurrers should have been sustained to defendant’s pleas.

Heard before Hon. B. M. Miller, Action by James L. Strickland against J. E. Gray for false imprisonment. Judgment for plaintiff in the sum of $250,- and defendant appeals.

■ Heard before Hon. C. C. Nesmiti-i. Action by Henry C. Kelly against the Tennessee Coal, Iron & Railway Company, for damages for procuring his discharge from employment and for libel and slander. Judgment for plaintiff and defendant appeals.

Heard before Hon. Samuel B. Browne. Acton by Jerry M. Tew against A. R. Ganus & Co., for damages to his health and estate - caused from the maintenance of a mill dam. Judgment for plaintiff and defendant appeáls. Appellants had a right to show that they entered and erected a dam .under parol license from appellee. — Hides Bros. v. Swift Greek Mill Go., 133 Ala. 421; Mitchell v. Gamhrell, 140 Ala. 216; Barlow v. Hamilton, 44 South. 657.

I-Ieard before Hon. Samuel B. Browne. Action by Anna Rickert against Kate Touart. Judgment for plaintiff and defendant appeals. The question of insanity is one of fact and should be left to the determination of the jury.— Dougherty v. Powe, 127 Ala. 580. The deed should have been left for determination as to its validity to the jury. — O’Donnell v. Rocliger, 76 Ala. 222; Boswell v. The State, 63 Ala. 307; Pike v. Pike, 104 Ala. 642.

Heard before Hon. J. C. Richardson. Ejectment by Ella Hughes against T. L. Rose. Judgment for -defendant, and plaintiff appeals. The plaintiff was a daughter of Netta Mims, whose husband, George Mims, owned the land at the time of his death; but Ella Hughes was not George Mims’ daughter. T. L. Rose claimed under a deed from Mary J. Anderson, and it was shown that Mary J. Anderson was the child of George Mims, deceased.

. Appeal from Marengo Circuit Court. 'Heard before Hon. John T. Lackland. Ejectment bv Morris Mayer, as administrator of Allen Kornegay and Thornton Kornegay and others. Judgment for defendants, and plaintiff appeals. The following is the agreed statement of facts: ' That Morris Mayer duly qualified as the administrator of Allen Kornegay, and letters of administration were duly issued to him out of the probate court of Marengo county, Ala., on the 30th day of June, 1896.

Heard before Hon. John T. Lackland, , Ejectment by Arthur Williams against J. H. Oliver. Judgment for plaintiff and defendant appeals. Where partition is by parol and possession is taken and held thereunder, this will take it out of the statute of frauds. — 9 South. 359.- Miss Kirkman was called by the plaintiff and hence, her evidence was admissible on cross examination as to the parts of her father’s and mother’s land. German v. Brown & Leeper, 145 Ala. 264.

Heard before Hon. John T. Lackland. Ejectment by Thomas W. Davis against Ollie Anderson and another. Judgment for defendants and plaintiff appeals. The mortgage offered in evidence by defendant John Kimbrough from Anderson and wife to himself should have been excluded because it shows that a. sale and transfer of same had been made to Kimbrough & Company.

Heard before Hon. A. A. Evans. . Statutory ejectment by Sue K. Neville against J. M. ■Cheshire. Judgment for plaintiff and defendant appeals. Appellants held the legal right to the property in controversy and was entitled to the affirmative charge.

Heard before Hon. H. A. Pearce. Ejectment by the Chattahoochie & Gulf By. Co., against B. B. Pilcher. Judgment for defendant and plaintiff appeals.

Heard before Hon. C. W. Ferguson. Action by the Birmingham Paint & Roofing Company against J. P. Gillespie. Prom a judgment for defendant, plaintiff appeals.

Heard before Hon. John T. Lackland. Detinue by Fred Gernert against L. Limbach. Judgment for defendant, and plaintiff appeals. • The mortgage was as follows: “State of Alabama, Marengo County.

Heard before Hon. B. M. Miller. Action by Hill & Shafer Company against W. H. Coker, to recover certain personal property. Basil Hill intervened, claiming the property. Judgment for defendant and plaintiff appeals. Counsel discuss the merits of the case, and insist that the judgment rendered in this case was unauthorized.

Heard before Hon. A. A. Evans. The Atlantic Coast Line Railway Company was sued in a justice court by tbe Saunders Hardware Company, and judgment having- been rendered against it, they brought said judgment to the circuit court by certiorari. Upon the trial, the circuit court taxed the cost against appellant, from which this appeal is taken. Counsel practically admit that on the authority of L. & N. v. Solomon> 138 Ala. 152, and under section 4830.

Heard before 1-Ion. John T. Lackland. Quo warranto by the state on the relation of W. H. Welch and others, against George J. Michael, to test his right to hold the office of city treasurer of the city of Demopolis. Judgment for relators and respondent appeals. The Municipal Code Act is a complete law, which by its terms, became operative in September .1908. — Ward v. State ex rel. Packer, 45 South. 655; Sec. 1063 and 1068, Code 1907.

Heard before I-Ion. Samuel B. Browne. Mandamus on the relation of Douglas G. Campbell, against the revenue and road commissioners of Mobile county, to require them to fix a fair salary for him as county physician under an election by the county board of health. The court granted a peremptory writ, and the respondents appeal.

Heard, before Hon. H. A. Pearce. Action by Dan Williams against J. D. Sanders, fon breach of warranty in the sale of a horse. Judgment for plaintiff and defendant appeals.

Heard before Hon. SAffold Berney. Certiorari by Mrs. Jane Johnson to review the actions of the justice of the peace in proceedings instituted by Mrs. Frederick to compel Mrs. Johnson to pay a portion of the expense of erecting a common or partition fence. From a judgment in favor of plaintiff in the original proceedings, the defendant appeals.

<p>Appeal from Clay Circuit Court.'</p> <p>Heard before Hon. John Pelham.</p> <p>Action by Delineóla Holmes against S. Y. Lambreth, clerk, to recover the penalty for failure of the clerk to properly prepare transcript. Judgment for defendant and plaintiff appeals.</p> <p>The statute of limitation has no application. — -Washington v. Norwood, 128 Ala. 389. Plaintiff was entitled to a judgment under the provisions of section 2850, Code 1907.</p> <p>The issue on the plea was found in favor of the plaintiff, and if there was any error in the preliminary rulings thereon, it was without injury. — Woodicard I. Go. v. Andrews, 114 Ala. 343; S. A. & M. 11. R. Go. v. Buford, 106 Ala. 503. The omission contended for does not fall within the terms of the statute. — 13 A. &' E. Ency. of Law, p. 55. The statute is penal and must be strictly construed.- — State ex rel. v. Brewer, 59 Ala. 130; Postal T. Go. v. Lenoir, 107 Ala. 640.</p>

<p>Appeal from Houston Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Action by J. B. Vinson, doing business as tbe New-Enterprise Company, against J. L. Jay and another, doing business as the Farmers’ & Merchants’ Warehouse, in which D. F. Johnson interposed a claim to the property. From a judgment for plaintiff, claimant appeals.</p> <p>The plaintiff claimed under a mortgage executed to it by E. B. Hughes in January, 1907, conveying the crops raised by him during that year. It was shown that the cotton was raised by Hughes and placed in the warehouse of defendant, on whom demand was made before suit, was brought for the possession of the cotton. It wras shown that E. B. Hughes raised the cotton, rented the land on which the cotton was raised from D. J. Johnson, and a mortgage was given by Hughes to Johnson in January, 1907; but it fails to appear that the Johnson mortgage wras. recorded, though the mortgage given the New- Enterprise Company was recorded. The contention of the claimant was that his landlord lien was superior to any outstanding mortgage or other liens.</p> <p>It is not necessary that a claimant claiming property for which detinue is brought should have such a legal title to the property as would authorize him to bring or defend a suit in detinue before he can interpose the claim. — Sec. 6039, Code 1907; Sec. 3792, Code 1907; Ballarcl v. Mayfield, 107 Ala. 396; Shows v. Brantley, 127 Ala 352; Tapsieo G, Co. v. Ballard, 107 Ala. 710.</p> <p>The legislature not having prescribed or set forth the character of liens, or authorized the filing of the claim based upon a landlord’s lien, in claim suits where detinue is brought for property, such liens or claims will not support a claim in such a case.— Sec. 3792, Code 1907; Columbus I. W. Co. v. Renfroe, 71 Ala. 577; Abraham v. Carter, 53 Ala. 8; Jackson v. Bain, 74 Ala. 328; Treadtoay v. Treadway, 56 Ala. 390; Starnes v. Allen, 58 Ala. 316; Bosioell v. Carlisle, 55 Ala. 554, In attachments and suits of that character, the allegation is that the title to the property is in another but subject to the satisfaction of the attachment lien, while in detinue the allegation is that the plaintiff has a general or special property right in the chattel, and the right to the immediate possession thereof, hence, equitable liens might defeat the one but would be no defense to the other.</p>

Heard before Hon. J. H. H. Smith. Virginia Boyles propounded the will of Mattie A. English for probate. , Contest was instituted by Ella B. Latham and another on the grounds of insufficient testamentary capacity and undue influence. There was judgment admitting the will to probate, and contestants appeal.

Heard before Hon. Sapfold Berney. Toulmin Cleveland and others brought suit against the Southern Railway Company for damages, for the removal of certain sand, and had judgment. ' The defendant moved for a new trial on account of surprise, accident, mistake, etc., setting up that under a certain statute, they were entitled to certain rights and privileges, and that they were ignorant of the statute at the time of the trial.

Heard, before Hon. B. M. Miller. Action by Ernest Ward by his next friend against Bibb county to recover of the county the difference between the rate per day of his sentence for cost and the contract rate at which the county hired him, he having performed full time. Judgment for plaintiff and defendant appeals.

Heard before Hon. Saffold Bbrney. Action by the Southern Hardware & Supply Company against H. Rowland Duke. Judgment for plaintiff, and defendant appeals. The testimony sufficiently appears from the dissenting opinion. The following charges were refused to the defendant: “(7) The court charges the jury that the burden was on the plaintiff to show that its claim is now due; and, unless the plaintiff has so reasonably satisfied you, you must find for the defendant.

<p>Appeal from Walker Circuit Court.</p> <p>Heard before Hon. James J. Bay.</p> <p>Action by tbe Merchants’ National Bank of La Fayette, Ind., against J. A. Norris and others. Judgment for defendants, and plaintiff appeals.</p> <p>Counts 2 and 3 describe tbe notes as payable to tbe order of J Couch & Sons, at tbe Jasper Trust Company’s Bank, Jasper, Ala., and allege that they have been duly transferred to tbe plaintiff, and are tbe property of tbe plaintiff. Count 1 describes tbe notes as payable to tbe order of J Couch & Sons, but contains no allegations as to where payable. Pleas 2 and 3 allege fraud in procuring tbe signature. Plea 6 alleges a breach of warranty; 8, also breach of warranty. Beplications 1 and 2 allege that tbe notes were purchased in good faith, in the regular course of business-, for value, and before maturity thereof, and without notice of the frauds, misrepresentations, or warranty set up, but do not show that the notes were commercial paper. Replication 3 sets up the same matters-, and alleges that the notes were commercial paper.</p> <p>Commercial paper in the hands of a bona fide purchaser for value before maturity are not subject to defenses which would be available against the original payee unless it be shown that such purchaser had actual notice of such defenses at the time he purchased. — Blachnfon v. Lehmmi, 63 Ala. 550; Capital G. I. Co. v. Flynn, 73’Ala. 558; 1st. Nat. Baoik v. Dawson, 78 Ala. 67; Marks v. 1st Nat., 79 Ala. 550; 80 Ala. 261; 88 Ala. 271; 96 Ala. 193; 103 Ala. 126; 109 Ala. 196; 127 Ala. 266; 45 South, 197. It follows that the court erred in its rulings on the pleadings. — Boss v. Drink-hard, 35 Ala. 434, and authorities supra. It also follows that the court erred in the admission of evidence, as to the failure of consideration, breaches of warranty and fraud in the procurement of the signature. The court erred in admitting the letter from Couch & Sons, to Kilgore Bros., — O’Connor M. & M. Co. v. Dickinson, 112 Ala. 304; Owensboro W. Co. v. Hall, 43 South. 71. The burden was on the appellee to show that appellant had notice. — 1st Nat. Bank v. Dawson, supra.</p> <p>No brief came to the Reporter.</p>

Heard before Hon. S. L. Brewer. Action by J. W. Strother against John Irvin and another, for services rendered as an attorney. At the request of the plaintiff the court gave the affirmative charge to find against John Irvin, and refused a. like charge to find for Irvin. . Judgment for plaintiff from which defendant appeals.

Heard before Hon. Saffold Berney. Action by Maxwell & .Delehomme against Perry L. Moore, for work and material in painting a house. Judgment for defendant and plaintiff appeals. The contract was severable and not entire. — Nonnington v. Wright, 5 Fed. 768; Worthington v. Gtum, 119 Ala. 44; Simms v. Ala. Broto. Go., 132 Ala. 311; Davis v. Preston, 6 Ala. 83; 4 Atl. 828. The contract being severable, recovery could be had.' — Kirkland v. Oates, 25 Ala. 467.

<p> Assumpsit. </p> <p>1. Partnership; Denial of; Pleading. — Where the note was signed by a company name by one defendant as manager and-endorsed by the other, and defendants were sued individually and as partners doing business under the company name, special pleas denying the partnership and alleging that the company was an individual business owned by one defendant and managed by the other, were -wholly insufficient; those pleas attempting to deny the partnership were-not even colorable as a defense to the-suit against them indivually.</p> <p>- 2. Corporations; Foreign Corporations; Failure to Qualify. — 'Where the suit is by a bank on a note executed by defendants in this state, a plea setting up that the bank was a foreign corporation, that the note was executed and delivered in this state, and that plaintiff had not then complied with the law, so as to entitle him to do business in this state, was wholly insufficient and subject to demurrer.</p>

Heard before Hon. Saffold Berney. Assumpsit by C. M. Walter against A. C. Deleon. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Saeeold Berney. Assumpsit by Jesse W. Hannon against Thomas B. Pace. Prom a judgment by default for plaintiff, and a writ of inquiry by the court, defendant appeals. The court erred in rendering default judgment and assessing damages without the intervention of a jury. — Wagnon v. Turner, 73 Ala. 197; Warwick v. Brooks, 67 Ala. 252; Manhattan F. I. Go. v. Powell, 76 Ala. 372; Acts 1907, p. 569.

Barbour Circuit Court. Heard before Hou. A. A. Evans. Action by Elloise Long against J. A. Grant, for rent. Judgment for defendant and plaintiff appeals. A tenant who holds over after the termination of his lease is held to continue under the former terms notwithstanding he refuses to continue the lease and' gives notice of his purpose not to do so. — Robson, et al. v. Holt, 90 Ala. 115; Woolf v. Woolf, 69 Ala. 549; Rhodes F. Go. v. Weedon & Dent, 108 Ala. 252; Singer Mfg.

Heard before Hon. Samuel B. Browne. Action .by John M. Green against the Southern States Lumber Company, to recover his commission as a real estate broker for effecting a sale of land.

Heard before Hon. S. L. Brewer. Action by tbe Phonoharp Company against Mattie C. Cook. For former report of this case, see 157 Ala. 501. Judgment for plaintiff and defendant appeals. A judgment by default or' nil dicit entered before the expiration of the time allowed for pleading will be reversed.- — Hollis v. HerTiber g Bros., 128 Ala. 474; Ex parte Howard Harrison Go., 119 Ala. 424. No brief came to the Reporter.

Heard before Hon. Samuel B. Browne. Action on an insurance policy by Mims R. Baker against the Supreme Lodge Knights and Ladies of Hon- or. Judgment for plaintiff, and defendant appeals. There was the following entry in response to the summons: “I enter this my appearance for the defendant, and reserve the right to plead specially to the complaint filed against it in this cause.

<p> Assumpsit. </p> <p>1. Witnesses; Competency; Transactions With Person Since Deceased. — Under section 4007, Code 1907, one maker of a note who-is joined in an action thereon with the executor of his co-maker, is not competent to testify as to any transaction with, or statement by his co-maker, since deceased, relative to the subject-matter of the action.</p> <p>2. Same; Removal of Disability; Adjudication of Bankruptcy.— The fact that an action has been dismissed against one maker of a note on the suggestion of adjudication of his bankruptcy, does not render him competent to testify in an action against the executor of a deceased co-maker as to any transaction with or statement by the deceased, relative to the giving of the note, since the adjudication of his bankruptcy is not the equivalent of a discharge in bankruptcy, and hence, does not remove his disqualifying interest.</p> <p>3. Same. — The fact that no relief is sought against a joint maker of a note and that he is called as a witness by the plaintiff in an action on the note against the executor of the other joint maker, does not remove the disqualifications provided in section 4007, Code 1907.</p>

<p> Broker’s Commission. </p> <p>1. Brokers; Compensation.; Termination of Contract. — -Where plaintiff and defendant agreed that defendant would pay plaintiff a commission for-selling certain land to a corporation which plaintiff might promote for that purpose, and while plaintiff was endeavoring to bring the deal about, the owner withdrew the offer, and sold the land himself, he was not liable for commission; the efforts of the plaintiff not having in any way tended to the consummation of the sale.</p> <p>2. Same; Contracts; Consideration. — Where the owner of land revoked the authority of the agent as to the sale of certain lands, but told the agent that he would be taken care of, as if he had made the sale, and the owner subsequently made a sale through-his own efforts, the promise was without consideration.</p> <p>3. Same; Revocation of Authority.- — An authority to sell land may be revoked at any time before sale, as a general -principle, and the-owner will not thereby be liable to the agent for services.</p>

Heard before Hon. H. A. Peaece. Assumpsit by G. M. Lunsford, and others, against P. T. Fleming and others. Judgment for plaintiffs and defendants appeal.

Heard before Hon. A. D. Sayre. Action by David Linton, for the use, etc., against Seth Johnson, for breach of covenant and Avarranty. From a judgment for plaintiff, defendant appeals.

<p> Assumpsit. </p> <p>1. Appeal and Error; Harmless Error; Evidence. — Where a defendant testified that he sent the plaintiffs a statement corresponding with the entry in a memorandum book as to how many days the boat worked, if it was error to refuse to exclude part of the memorandum showing how many days the boat worked, it was harmless; the action being for the rent of a boat.</p> <p>2. Evidence; Hearsay. — Where the action was for the rent of a boat and the defendant was absent part of the time, the defendant could not state as a witness, what an employe told him as to the number of days the boat worked, such a statement being hearsay.</p> <p>3. Charge of Court; Misleading Instructions; Request for Explanation. — If the charges correctly state the law, but contain misleading tendencies, it is the duty of the. adversary party to ask. explanatory charges.</p>

<p> Assumpsit. </p> <p>1. Logs and Logging; Sale of Standing Timber; Construction of Contract. — Where the contract for sale of standing timber provided that for the sum of $500.00 the purchaser was to have all the white oak, poplar and best red oak trees on the land suitable to make good and sound lumber that would square ten inches at the little end, each tree to be. counted at 50 cents, and if there were not trees enough of the proper size to amount to $500.00 at 50 cents per tree, the purchaser could cut such timber as he desired to make up for the deficiency, counting it.in proportion to the other timber, if there was a deficiency of timber squaring ten inches, the seller had the option of returning a proportion of the amount of the money received, but the purchaser was only entitled to cut other'timber in such case, and could not enforce the option to have the money returned.</p> <p>2. Appeal and Error; Barmless Error; Pleading and Evidence. — ■ Where the action was on a contract which furnished plaintiff no basis for a recovery error as to pleadings and evidence are harmless.</p>

Appear from Mobile Circuit Court. Heard, before Hon. Samuel B. Browne. Action by -John R. Hawkins against tbe M. J. & K* C. R. R. Co., for breach of contract of employment.

Heard before Hon. Saffold Beeney. Assumpsit by the Interstate ' Lumber Company against tbe Lewis Land & Lumber Company. Judgment for plaintiff and defendant appeals. Counsel discuss errors assigned, and cite authority in support of their contention. But do not discuss the matters decided.

Heard before Hon. W. W. Pearson. Assumpsit by the West-Steagall Grain & Milling Company against the Parsons Lumber Company. Judgment by default was entered and from this judgment defendant appeals. The court erred in the rendering of the judgment, in this case, as it fails to show or state that any of the requirements of sec. 3971, Code 1907, were complied with. — Grier et al. v. Liipfert 8. Go., 47 South. '307.

Heard before Hon. S;. L. Brewer. ' Action by Bradley Bros, against Hardaway-Wright Company. Judgment for plaintiff, and defendants appeal..

<p> Assumpsit. </p> <p>1. Bills and Notes; Plea; Non Est Pactum. — Where an action is upon an instrument in the form of a note, and the plea of non est factum is interposed, the plaintiff must show the execution of the instrument before it is admissible in evidence.</p> <p>2. Same; Execution; Promisee Signing for Promisor.- — A promisee cannot become the agent of the promisor for the purpose of signing his name to a contract, and hence, the payee of an instrument in the form of a note could not sign the maker’s name thereto and have the maker make his mark in the execution thereof.</p> <p>3. Same; Actions; Issues; Admissibility of Evidence. — Where the action was on an instrument in the form of a note which was not admissible because not properly executed, and the only basis for a claim of attorney’s fees was under the contract, testimony as to the reasonable value of the attorney’s fee was not admissible.</p> <p>4. Witnesses; Re-direct Examination. — Questions propounded on re-direct examination which call for merely a repetition of what had been gone into on the direct examination, and not in rebuttal to anything brought out on the cross, are properly excluded.</p> <p>5. Same; Scope. — Where the action was on an instrument in the form of a note, and the plaintiff had testified that he went over the items of the account with the alleged maker after the services had been performed, and for which the instrument was alleged to have been given, and on rebuttal was allowed to explain by saying that he told the maker that he wished to be reasonable with him and would reduce the debt and that the debt he was speaking of was the debt which the maker owed, it was competent to inquire whether, when the matter was thus presented to the maker, he made any claim that it was not his debt, since it had a bearing upon the question whether or not the maker had made such an ¡dependent promise as to make it his debt.</p> <p>6. Evidence; Parol Evidence; Execution of Note. — Where the action was on an instrument in the form of a note, and it appeared that the same had not been legally executed, things that were said by the alleged maker when the instrument was alleged to have been executed, could have no bearing on the validity of the instrument and were, hence, not admissible.</p> <p>7. Same; Admissions; Joint Liability. — Whether or not one of the signers of an instrument in the form of a note offered to compromise the debt was irrelevant on the question as to whether the other signer, who was sued owed the debt.</p> <p>8. Trial; Request for Instructions; Form. — A charge asserting that if the debt sued on was the debt of the other signer of the instrument, and. if the defendant only attempted to sign the notes to bind his horse for the payment of the debt, the defendant • should recover, is not error, for if misleading, the duty is on the plaintiff to request an explanatory ehcarge.</p> <p>9. Same; Direction of Verdict. — Where there was evidence tending to prove the counts in a complaint the affirmative charge is improperly given for the defendant.</p>

Heard before Hon. H. A. Pearce. Assumpsit by Simonton & Co. against W. H. Crawford. Judgment for plaintiff and defendant appeals. No brief came to the. Reporter. No brief came to the Reporter.

<p> Bill to Bet Aside Fraudulent Conveyance. </p> <p>1. Eraudmlent Conveyances; Intent of Grantee. — The intent of the grantee is immaterial where the bill is to set aside as voluntary a conveyance by a debtor to his wife.</p> <p>2. Srnne; Secured Creditors; Remedy. — Where the mortgagee attempts to set aside as fraudulent, a conveyance of the debtor’s property, the grantee in such conveyance cannot complain of the choice of remedies made by the mortgagee.</p> <p>3. Same; Pleading.- — A bill by the mortgagee to set aside a voluntary conveyance from a debtor to his wife is not rendered demurrable because containing the allegation that the debtor had paid off and discharged existing liens on the property conveyed as such statement tended to show an attempt to defraud creditors, who had no liens upon the property conveyed, and because equity will not permit such an v expenditure at the expense of other creditors.</p> <p>4. Same; Right of Assignee of Debt. — Since the assignee of a debt stands in the place of the assignor, it is immaterial what consideration the assignee paid for the debt which he holds, the bill being to set aside a conveyance by the debtor to his wife.</p> <p>5. Same; Who May Attach. — A conveyance of property intended by the debtor to defraud future creditors is void both as to future and existing creditors.</p> <p>6. Mortgages; Remedies of Mortgagee. — As against the mortgagor a mortgagee may proceed in equity to foreclose a mortgage, sue in ejectment to recover or sue on his debt at law, and may pursue all the remedies at the same time.</p> <p>7. Husband and Wife; Separate Estate of Wife; Validity of Mortgage. — A mortgage on the separate estate of the wife to secure an indebtedness is void under the provisions of section 4497, Code 1907.</p>

Heard before Hon. Thomas H. Smith. Bill by F. G. Bromberg and others against Edward P.. Allen, executor of the last will and testament of Mary B. Johnson, and others, to enjoin the probate by Alíen of an alleged will of' the said decedent. Decree for plaintiffs and defendants appeal. Reversed and bill dismissed.

<p>Appeal from Crenshaw Chancery Court.</p> <p>Heard before Hon. L. D. Gardner.</p> <p>Action by Susan Falley against Jeff: Falley, for divorce and praying the custody of the children. There was a decree pro confesso entered and t-lie cause was submitted to the chancellor in vacation under the circumstances set out in the opinion. Judgment for complainant granting the prayer of the bill, and respondent appeals.</p> <p>Section 8164, Code 1907, confers upon chancellors new and unlimited power which depends upon the existence of certain facts and they must affirmatively appear of record. — Good-water W. H. Go. v. Street, 137 Ala. 621. The application was not sufficient under the statute. — Pullman P. O. Co. v. Harris, 122 Ala. 157. The decree is further void because rendered in vacation granting custody of children. — Wright v. Adams, 129 Ala. 305.</p> <p>Counsel insist that under section 3154 and 3808, Code 1907, the decree is valid and binding, and should be affirmed.</p>

Heard before Hon. J. W: Mabry. Bill by Joan F. Barker against Carlisle Jones to remove obstructions across a public highway or roadway. Demurrers were overruled to the bill and respondent appeals. The chancellor’s decree is as follows: “Complainant predicates his rights to the use of the roads in question on three distinct grounds: First, by prescription; second, by reason of having been dedicated to the public; and, third, as a way of necessity.

<p>Bill to Define, Establish and Perpetuate a Convenient Way of Egress and Ingress.</p> <p>1. Basement; Bight of Way; Servitude. — Whether operating as a reservation or exception, the provision in the habendum clause of a deed executed by executors that the executors reserved the right of egress and ingress over the lands therein conveyed to and from certain other lands belonging to the estate, created a servitude of a right of way or passage over the land conveyed.</p> <p>2. Same; Construction; Appurtenant or Gross. — Where executors in their official capacity hold title to certain lands in trust, part of which is inaccessible to a highway, except by crossing the other land held in trust by them, and they convey the lands contiguous to the highway with a provision in the deed reserving to them the right of egress and ingress to the lands inaccessible to the highway, such an easement or reservation is not an easement in gross, creating a void personal right in the executor, but such a provision creates an easement appurtenant to the reserved land under the provisions of section 3396, Code 1907.</p> <p>3. Same; Obstruction; Bight to Sue. — Where the owner of an estate servient to an easement of a right of way obstructs the use thereof and threatens to continue to prevent absolutely a further use of the right of way, which may ripen into a legal right to maintain the obstruction, the owners of the fee and easement may sue to enforce their easement notwithstanding the dominant estate has been let to tenants for agricultural purposes.</p> <p>4. Same; Obstruction; Demand. — A demand to open the way is not essential to the maintenance of a bill by the owners of the dominant estate to enforce their easement where it appears that the owner of the servient estate has erected a wire fence along the entire line between the dominant and servient lands, thus preventing all use of a right of way by the own'ers of a dominant estate or their tenant, and has notified the tenant that they denied his right to use the way and would prevent such use in the future.</p> <p>5. Specific Performance; Pleading; Easement; Description.— Where a deed reserved a right of way to and from certain lands belonging to the estate of a decedent and described the lands as lying west of the land described, and the bill to enforce the easement accurately described the land and alleged that they were the only lands belonging to the estate which lie west of the lands conveyed, the bill contained a sufficient description of the dominant estate to permit the court to decree specific performance of the right of way.</p> <p>C. Same; Enforcement; Right of Way.- — Where the servient tenant denies the dominant tenant’s right to the use of a right of way, reserved in the deed and clearly appurtenant to the dominant estate, it is the duty of the court under proper pleading to enforce specific performance by establishing the right, defining the tract and enjoining disturbance of the way. provided it has not been previously fixed either by deed or by act of the parties.</p>

<p> Bill for Partition. </p> <p>1. Poicers; Execution; Intent. — While no particular formality is required in the execution of a power an intent to execute it must be shown.</p> <p>2. Same; Execution; Title Acquired. — Under, section 1046, Code 1896," a purchaser from a life tenant with power to sell must show, in order to acquire the fee, that he purchased from the life tenant, not only his estate, but the entire property, since the life tenant may exercise his 'discretion by selling the life estate only, thus leaving the remainder for those entitled thereto.</p> <p>3. Partition; Title of Purchaser.- — Where proceedings are commenced by a life tenant who had power to sell merely to sell for partition her estate and the interest of the co-tenant, in fee, and no mention is made of the power to sell, the purchaser under the sale acquired only the fee of the interest of the co-tenant in the estate, and the life estate of the life tenant.</p> <p>4. Life Estate; Adverse Possession; Termination of Life Estate.— Where a purchaser becomes the owner of an interest in fee of land and the owner of the estate of a life tenant in the same land, as against the remaindermen, no question of adverse possession could arise until the death of the life tenant.</p> <p>5. Tenmicy in Common; Adverse Possession. — The possession of one tenant in common is the possession of all, and cannot become adverse until brought home to the knowledge of the other, or the possession is so open and notorious in its hostility and exclusiveness as to put the other tenant on notice of its adverse character.</p>

Heard before Hon. Thomas H. Smith. Bill by the Bay City Machine Works against the Climax Lumber Company and others, to enforce a mechanic’s or material-man’s lien. Decree for complainants and respondent appeals. Counsel discuss objections to testimony and insist that the court erred, but in virtue of what is said in the opinion, it is deemed unnecessary to here set it out.

Heard before Hon Thomas H. Smith. Suit by Mary D. Evans against Margaret Martin. From a decree in favor of' complainant, defendant appeals. The following is the opinion of the chancellor in the court below: “Complainant alleges: That on the 15th day of February, 1907, her youngest son came to her in distress and stated to her that his former employer, Ed Martin, accused him of being an embezzler in a- large amount.