Volume 164 — Alabama Reports

<p> Injury to Passenger. </p> <p>1. Carriers; Passengers; Injury; Complaint. — Counts 1 and 2 of the complaint stated and examined and held not subject to demurrer on the grounds of vagueness, uncertainty and indefiniteness, and that it did not sufficiently appear what duty was owing the plaintiff from defendant, or wherein or how defendant violated any duty owed her.</p> <p>2. Discovery; Interrogatories; Use of Evidence Obtained. — Construing together sections 4049, 4053 and 4057, Code 1907, it is held that where interrogatories were propounded by defendant to plaintiff, and plaintiff’s depositions were in defendant’s control after they were answered, to be offered as evidence, the defendant could not introduce a part thereof on the suggestion of laying a predicate for impeachment without offering the whole.</p> <p>3. Charge of Court; Unsupported by the Evidence. — A charge predicated upon a theory unsupported by the evidence, or any reasonable inference to be drawn therefrom, is properly refused.</p>

<p> Injury to Passenger. </p> <p>Pleading; Amendment; New Cause of Action. — -A count added ' by way of amendment to a complaint for personal injuries which alleges generally the negligence of the defendant in transporting the plaintiff as a passenger and which refers to the- same accident and injury as set out in the original complaint, without setting out the particulars of the accident, does not constitute a departure or a new cause of action, and is not subject to the statute of limitations.</p>

Heard before Hon. H. A. Sharpe. Action by L. N. Girod against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. Charles A. Senn. Action by T. S. Weathers against the Birmingham' Railway, Light & Power Company for injuries received while, a passenger. Plaintiff had judgment, and defendant appeals.

Heard before Hon. A. O. Lane. Action by Giles Williamson against tbe Tennessee Coal, Iron & Railroad Company. From a judgment for plaintiff, defendant appeals. ■ The pleadings sufficiently appear from the opinion.

Heard before Hon. A. A. Coleman. Action by Ed'Bonner against the Tennessee Coal, Iron & Railway Company, for injuries received in the course of his employment.

Heard before Hon. William Jackson. Action by Allen Bibb against the Sloss-Sheffield . Steel & Iron Company for injuries received while working in defendant’s mine as a servant of an independent contractor.

Heard before Hon. D. W. Speake. Action by W. T. Holland, as administrator, against the Louisville & Nashville Railroad Company. Plaintiff had judgment, and defendant appeals.

<p> Action for Death of Servant. </p> <p>1. Master ancl Servant; Injury to Servant; Negligence; Presumption. — As between a master and a servant no presumption of negligence arises from the mere fact of an injury, even where a highly dangerous instrumentality is employed, such as electricity, and the servant is injured thereby.</p> <p>2. Same; Care Required.' — The measure of care required of a master in conserving the safety of his servant is that degree of care which careful and prudent men exercise in their own affairs, or the care and diligence which a man of ordinary care and prudence, would exercise for his own protection, or the x>rotection of his property.</p> <p>3. Same; Dangerous Instrumentality. — The degree of care which a master is required to exercise for the safety of his servant must be proportionate to the dangerous nature of the means, instruments and machinery used.</p> <p>4. Same; Duty to Warn. — A master is under no duty to warn where there is no apparent reason to anticipate danger from the use of an electric lamp or fan by employes working inside a boiler.</p> <p>5. Same; Instruction. — An instruction in an action for the death of a servant that the law under which the suit was instituted applies to all persons who employ labor, whether farmers, merchants, mechanics or corporations, was not prejudicial to plaintiff.</p> <p>6. Same; Liability Act. — Where the action was for the death of a servant from an electric shock while working inside a boiler, charges asserting that mere knowledge of the defect, if there -was a defect, does not constitute negligence; that the jury could not find for plaintiff on account of the defect in electric wires connected with the lamp or fan used in the boiler, if there was such a defect, unless it arose from or had not been discovered by reason of the negligence of the defendant, or of the person intrusted by the defendant with the duty of seeing that the works or wire was in proper condition, and if the jury were reasonably satisfied that there was no danger in the electric lamp or wore until the lamp or globe became broken, defendant would not be negligent nor liable for injuries resulting from the breaking of the lamp until it had reasonable opportunity to repair the same, were in conformity to the Employer’s Liability Act and not erroneous. ■</p> <p>7. Same — Charges hypothesizing the defendant’s nonliability if plaintiff’s death resulted from unexpected events not reasonably to be provided against were-proper.</p> <p>8. Same; Incidental Risks. — A charge that the master is not an insurer of the safety of the servant against risks incidental to the business, was not rendered erroneous by failure to qualify the word “incidental” by the word, “ordinarily.”</p> <p>9. Same. — Where decedent was killed by an electric current flowing from wires attached either to an electric light globe or an electric fan used by him in connection with his work inside of a boiler, and there was evidence tending to show that at the time of the death, intestate had his hand in contact with part of the then broken electric lamp charged with the current, and that in coming out of the boiler a part of his body rested on or touched the wire conveying current to the fan, thus making a circuit to his body and causing his death, charges exempting defendant from liability in case intestate would not have been injured, but for the breaking of the electric light globe, which defendant had no opportunity to repair-, were proper.</p> <p>10. Same; Evidence. — -Where the action was for the death of a servant by electricity, it was incompetent to show that one W. dropped the servant’s body and ran away as tending to prove that the body was electrified.</p> <p>11. Charge of Court; Witness Shoicing; Weight. — An instruction that the statement of what an absent witness would testify if present was entitled to the same consideration by the jury as if the witness had testified to such statement, was not improper.</p> <p>12. Evidence; Conclusion. — Where the decedent was killed by an electric shock and the limit of voltage that could be conveyed to the tan and lamp used by him and not burn out the fuse aud stop the fan or explode the lamp, was shown, and it was further shown that both the fan and the lamp continued to perform their respective functions after intestate’s death without an increase of current, evidence that there was not more voltage on the wires than the limit previously testified to at the time intestate was killed, did not state a conclusion of the witness, although the witness admitted that he had not taken the voltage scientifically.</p> <p>13. Appeal and Error; Harmless Error; Evidence. — -Where the action was for a servant’s death from electrocution by coming in contact with wires connected with an electric light bulb and a fan in a boiler where the servant was working, the admission of evidence as to the motive, purpose or source of suggestion for putting them in the boiler was harmless to the plaintiff.</p> <p>14. Same. — Where, by the subsequent testimony of the same witness, the subject was fully developed as far as the witness could testify the exclusion of a question asked by the plaintiff of the witness was not prejudicial.</p> <p>15. Trial; Objection to Evidence; Grounds.- — Unless the evidence is palpably inadmissible a trial court is not required to sustain objections to evidence not specifying the grounds.</p>

<p>Appeal from Birmingham City Court.'</p> <p>Heard before Hon. Charles A. Senn.</p> <p>Action by Dora E. Holmes, administratrix, against tbe' Lacey-Bnek Iron Company. From a judgment for plaintiff, defendant appeals.</p> <p>Count 2 of the complaint is as follows: ’ “The plaintiff, Dora E. Holmes, as administratrix of the estate of C. R. Holmes, deceased, claims of the defendant, LaceyBuek Iron Company, a corporation, the sum of $10,-000 damages, for that heretofore, to wit, on the 10 th day of April, 1905, the plaintiff’s intestate was regularly in the service or employment of the defendant at Trussville, in the county of Jefferson, state of Alabama, as fQreman of the crew of men working at the defendant’s coal washer, and while her intestate ivas in the exercise of his employment as such foreman it became his duty to accompany his crew of men and some railroad cars which had been loaded with refuse at the defendant’s coal washer to the dump for the purpose of unloading the said cars, and that preparatory to accompanying his crew and the said cars to the dump he boarded one of said cars, which were to be hauled ta the dump by the defendant’s locomotive on a railroad operated by the defendant; and the plaintiff avers that while her intestate was on said car, in the discharge of his duty, and immediately after the engineer of defendant’s locomotive had started said cars on their way to the dump, he ivas knocked off of said car by a brace of a shed which extended over the defendant’s railway and over the car on which he was standing, and was run over by one of said cars and received injuries as a proximate result of which he died on, to wit, the 12th day of April, 1905; and plaintiff alleges that the injury which resulted in the death of her intestate Avas proximatelv caused by reason óf the negligence of a person in the service or employment of defendant, to wit, one Will Akers, who had charge or control of defendant’s locomotive on a railway which was being operated by the defendant, and who was the engineer on defendant’s said locomotive, and that said negligence consisted in this, viz., said Akers started the said cars, upon one of which the plaintiff’s intestate was standing, and negligently failed to ring the bell or blow the whistle on said locomotive, or to otherwise give warning of the fact that he was ready and about to start said cars, which caused the plaintiff’s intestate to be struck by said brace and run over by one of said cars, and to receive injuries as a proximate consequence of which he died as aforesaid.”</p> <p>The following demurrers were interposed: “(1) It is not alleged or shown that it was the duty of said person to ring the bell or blow the whistle on said locomotive, or to otherwise give warning of the fact that said cars were to be started. (2) The necessity for' warning plaintiff’s intestate is not therein shown. (3) It is not alleged or shown that plaintiff’s intestate was ignorant of the fact that said cars were about to be started. (4) For aught that appears, plaintiff’s said intestate was in charge of the crew which operated said cars. (5) For aught that appears, plaintiff’s intestate was himself superintendent over the cars and persons working thereon. (6) No facts are alleged which show that it was the duty of said person to warn plaintiff’s intestate of the starting of said cars. (7) For aught that appears therein, plaintiff’s intestate knew that the brace of said shed would strike him if said cars were started, and nevertheless assumed a dangerous position on said cars with reference to said brace. (8) It does not appear therefrom with sufficient certainty that plaintiff’s intestate’s death was caused proximately by reason of the negligence of the person in the service or employment of defendant who had charge or control of a locomotive," car, or train upon a railway.”</p> <p>— The court erred in overruling appellant’s demurrer to the 2nd count. — Ala. 8. & W. Co. v. Griffin, 42 South. 1038; Woodward I. Go. v. Gurl, 44 South. 973. The court should have given the general charge as to the count as the statute was intended for the protection of the public and not for employes, and if it be conceded that the engineer did not give the signal, his failure to do so was no more than simple negligence.— G. P. B. R. Co. v. Lee, 92 Ala. 270; L. & N. v. Webb, 97 Ala. 310; A. G. 8. v. Lynn, 103 Ala. 138. Besides, the proof showed conclusively that he was guilty of contributory negligence in assuming the position he did on the car with knowledge of the circumstances and surroundings. — M. & O. v. George, 94 Ala. 218; Southern Ry. Co. v. Reecler, 44 South. 701; A. G. 8. v. Roach, 110 Ala. 271; L. & N. v. Orr, 91 Ala. 554; Mothershed’s Case, 97 Ala. 258. It was not the engineer’s duty to warn Holmes that the train was about to start. — L. & N. v. Hall, 87 Ala. 718; R. R. Go. v. Houston, 95 TJ. S. 697; Bir. R. L. & P. Co. v. Oldham, 141 Ala. 199; Ga. Pac. v. Ross, 100 Ala. 492. - The affirmative charge as to the 11th count should have been given. — Johnson v. Bir. R. L. & P. Go., 43 South. 36, and authorities there cited. — Bush’s Case, 122 Ala. 486. It was the duty of Holmes to exercise a reasonable care to select a safe place on the train, and the court erred in refusing the charge asserting such to be the law. — Authorities supra. That Holmes had no right to rely on the custom of the engineer to blow the whistle before starting the train, see case of. — Martin v. G. of Ga., 138 Ala. 531.</p> <p>— Counsel discuss the demurrers to the second count of the complaint in the light of the Griffin and Curl cases relied on by appellant, and conclude that those cases are unsound and should be overruled. They insist that the court did not err in refusing the general charge as to the second count, and cite in support of their contention- that Holmes was not guilty of negligence in assuming the position he occupied on the train; —Bir R. L. & P. Go. v. Brantley. 141 Ala. 619; Bir. R. L. & P. Go. v. Jackson, 136 Ala. 286; Southern Ry. v. Shirley, 128 Ala. 595; G. of. Go. v. Foshee, 125 Ala. 218; A. G. S. v. McWhorter, 47 South. 84. They insist that it was the engineer’s duty to warn Holmes that the train was about to start. — Sweet v. Bir. R. L. & P. Go., 136 Ala. 116. The court did not err in refusing the affirmative charge as to the 11th count. — Southern Ry. Go. v. Shelton, 136 Ala. 191; Southern Ry. Go. v. Bush, 122 Ala. 486; Bir. R. & E. Go. v. Smith, 121 Ala. 355. The defendant was not entitled to the affirmative charge upon the whole case, and the court properly refused charge 6. — 81 Minn. 496-; 26 Cyc. 1233. Counsel discuss the motion for a new trial, but without citation of authority.</p>

Heard before Hon. A. O. Lane. Action by Carl Carter against the Southern Bailway Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. H. A. Sharpe. Action by Charles A. Moseley, administrator oE Charles S. Moseley, deceased, against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. , All the counts of the complaint were stricken, except the fifth and seventh. The seventh count is sufficiently set out in the opinion.

Heard before Hon. John H. Deque. Action by George Whitmore, as administrator, against the Alabama Consolidated Coal & Iron Company, for damages for the death of his intestate. Judgment for defendant, and plaintiff appeals.

<p> Injury to Servant. </p> <p>1. Master and Servant; Injury to Servant; Complaint. — A complaint for injury to a servant which alleges defects in appliances and places for doing the work should allege facts showing a connection between the defects or negligence complained of and the injuries sustained, or that such defects or negligence were the cause proximately of the injury.</p> <p>2. Same; Contributory negligence. — Where a servant voluntarily attempts to replace a belt on a pulley while it is making from one to two hundred revolutions per minute, he is guilty of contributory negligence.</p> <p>3. Same; Assumption of Risk. — Where a servant voluntarily undertakes to replace a belt on a pulley making from one to two hundred revolutions per minute, he assumes the risk of injury, although he had no absolute authority to order the machinery stopped for the purpose of replacing the belt.</p>

Heard before Hon. W. W. Haralson. Action by Mike Hudson against the Alabama Great Southern Bailway Company for damages for injuries received while in its employment. Judgment for plaintiff and defendant appeals. The principles expressed in Gaynor v. Southern By., 44 South. 652, are decisive and controlling in this case. See also, Coosa M. Go. v. Williams, 133 Ala. 609; Byrd v. Indian Head Mills, 131 Ala. 356; Sloss-8.

Heard before Hon. Thomas W. Wert. Action by Squire Ratliffe, as administrator, against tbe Louisville & Nashville Railroad Company, for tbe death of plaintiff’s intestate. From a judgment for plaintiff, defendant appeals.

<p> Grossing Accident. </p> <p>1. Railroads; Operation; Grossing Accident; Complaint.— A complaint alleging that defendant’s servants wantonly and recklessly or intentionally inflicted the injury complained of, is not demurrable for a failure to particularize in what the wantonness consisted, or as alleging wantonness or willfulness in the alternative.</p> <p>2. Pleading; Demurrer; Waiver. — It is the office of demurrer to •call attention to defects in pleading, and where appropriate grounds of demurrer are not interposed to properly raise a question as to defects in pleading, such defects will not be considered.</p> <p>3. Charge of Count; Ignoring Evidence. — Charges which ignore certain phases of the evidence are properly refused.</p> <p>4. Bame; Invading Province of Jury. — Charges which invade the province of the jury are properly refused.</p> <p>5. Bame; Particularizing Parts of the Evidence. — Charges which particularize or stress parts of the evidence to the exclusion of other evidence are properly refused.</p> <p>6. Bame; Oral Charge; Construction. — The oral charge of the court must be construed as a whole, and error cannot be predicated upon ■extracts from the charge which are proper when read in connection with the whole charge.</p>

Heard before Hon. A. O. Lane. Action by Barbara Street as administratrix against the Louisville & Nashville Railroad Company, for the death of her decedent.

Heard before Hon. C. P. Almon. Action by John F. Hyde, administrator of Robert Hyde, deceased, against tbe Southern Railway Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. W. W. Haralson. Action by Adelaide E. Stewart, administratrix, against tlie Southern Railway Company, for the death of her intestate while on the track. Judgment for plaintiff and defendant appeals. Reversed and remanded. For the facts and pleadings in this case on former appeal, see 153 Ala. 133; 45 South. 51. The 1st count of the complaint Avas defective.- — Goodloe v. M. & G., 107 Ala. 233; A'. G. S. v. Sanders, 145 Ala. 548; Case v. Hulsehush, 122 Ala.

<p> Injury to Person on Track. </p> <p>1. Negligence; Pleading; Quo Modo. — Where the gravamen of the count is the alleged misfeasance or nonfeasance of another, it is not necessary to define the quo modo of the negligence.</p> <p>2. Same; Actionable Negligence; Proximate Cause. — To he actionable the negligence relied on must be the efficient proximate cause of the injury.</p> <p>3. Railroads; Crossing Accident; Complaint. — In an action against a railroad for personal injuries received in a collision at a crossing a count which alleges that the defendant negligently ran an engine towards the pike along which plaintiff, was driving, thereby causing his team to become frightened and run across the track where it was struck causing the injuries alleged is sufficient, although it does not allege the particulars of defendant’s negligence.</p> <p>4. Same. — In an action against a railroad for personal injuries received in a crossing accident, a count alleging that defendant negligently ran an engine at a rapid rate of speed towards the pike along which plaintiff was driving thereby causing his team to become frightened and run across the track where it was struck, causing the injury complained of is not defective as violating the rule that the sufficiency of a complaint' for personal injuries which undertakes to define the particular negligence which caused the injury must be tested by the special allegation in that regard.</p> <p>5. Same; Violation of Statutory Duties. — While a failure to observe the requirements of section 5473, Code 1907, is negligence in itself, it is not actionable unless it is the efficient proximate cause of the injury.</p> <p>6. Same; Object of Regulation. — The object of section 5473, Code 1907, is to put the traveller upon his guard so as to prevent personal injuries and to enable him to guard against injuries from frightened animals that he may be driving.</p> <p>7. Same; Frightening Animals; Liability; Wanton Acts. — While a railroad has authority in its operation to make such noises as are incident thereto, and is not liable for injuries occasioned by animals taking fright at noises made in the reasonable exercise of such acts and duties, yet, if the acts of its employes which cause such fright, are wanton and malicious and. are done in the discharge of their business by using the appliances in a wanton or reckless manner, the railroad is liable.</p> <p>8. iSame; Failure to Whistle or Ring Dell. — The failure to observe the provisions of section 5473, Code 1907, before reaching a highway crossing will be treated as the efficient cause of injury to a traveller along the highway, who, in the absence of such signals, goes so near the track that an approaching train frightens his team, although there is nothing unusual in the operation of the train.</p> <p>9. Same; Complaint. — Although a count does not charge that the operation of an engine immediately at the crossing was unusual or in any respect negligent, but relies on the failure of the engineer to blow the whistle or ring the bell at least one-fourth of a mile before reaching the pike, and in consequence of which failure the traveller approached the crossing without warning of danger on account of which his team became frightened and ran on the track in front of the engine, shows sufficiently a connection between the negligence alleged and the injury in cause and effect.</p> <p>10. Same; Duty of Traveler. — It is not the duty of a traveler on a highway approaching a railroad crossing to leave his vehicle and go to the head of his team to be in better position to control it until he becomes aware of the approach of the train.</p> <p>11. Same; Jury Question. — The evidence in this case stated and examined and held insufficient to submit to the jury the question of ■negligence in the rapid operation of the train.</p>

. Heard before Hon. D. W. Speake. Action by Robert Lee Penney against the Southern Railway Company for damages for killing a mule.

Equity Court. Heard before Hon. Thomas W. Wert. Action by Henry Thomas, pro ami, against the North Alabama Traction Company, for damages received in a runway accident alleged to have been occasioned by the negligent running of defendant’s, cans. Judgment for plaintiff, and defendant appeals.

Heard before Hon. S:. L. Brewer. Action by Lelia Fuller, against the Central of Georgia Bailway Company. Judgment for plaintiff and defendant appeals. Charge 2, referred to, is the affirmative charge as to the sixth count.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. C. W. Ferguson.</p> <p>Action by J. H. Gordon against the Tennessee Coal, Iron & Railroad Company for injuries while crossing its track. Judgment for defendant, and plaintiff appeals.</p> <p>The first count is as follows: “Plaintiff claims of defendant the sum of nineteen hundred ninety-nine dollars ($1,999.00) as damages, for that heretofore, to wit, August 27, 1906, plaintiff was in a vehicle drawn by a horse, and engaged in or about crossing a railway, in a city, town, or village in Jefferson county, Alabama, to-wit Johns, and while so engaged at said time and place one or more cars on said railway ran upon or against said vehicle, and as a proximate consequence thereof plaintiff was greatly shocked, bruised, mashed, and otherwise injured in ihis body, he was injured in his back, hips, kidneys, liver, and bowels, and other internal organs, and was made sore and sick, his health and physical stamina were greatly and permanently impaired, he was permanently injured, he was rendered permanently less able to work and earn money, and was rendered likely for ,a long time to suffer great mental and physical pain, and was put to great trouble, inconvenience, and expense in .and about his efforts to heal and cure his said wounds and injuries. Plaintiff alleges that said car or cars ran upon or against said vehicle as aforesaid, and he suffered said injuries and damages, by reason and as a proximate consequence of the negligence of the defendant, or its servant or agent, acting within the line and scope of its authority as such servant or agent.” This count was amended, after demurrers were sustained, by adding after the words “plaintiff alleges,” where they first occur, the following.: “that defendant, by. and through its servant or agent, was operating a car or cars upon, along, or over said line of railway at said time, and.”</p> <p>The 1st count was sufficient, and the court erred in sustaining demurrers thereto. — Southern By. Co. v. Hobbs, 151 Ala. 335.</p> <p>The complaint was insufficient, and the court properly sustained demurrers thereto. — Ensly By. Co. v. Chewning, 93 Ala. 2fi; Montgomery v. Gilmer, 33 Ala. 116; Phoenix I. Go. 17. Moog, 78 Ala. 284; L. & N. v. Jones, 88 Ala. 376.</p>

Heard before Hon. D. W. Speai-ce. Action by P. M. Ramey against the Southern Express Company for the death of an animal while in transit. Judgment for plaintiff and defendant appeals. The law will not presume negligence in the absence of any evidence having a tendency to show negligence. — Soiithicorth v. Shea-, 131 Ala. 419. There is no evidence in this case as to the cause of the irtjury except that the death ensued from natural causes.

Heard before Hon. W. W. Haralson. Action by J. C. Wallace against the Nashville, Chattanooga & St. Louis Railway. Plaintiff had judgment, and defendant appeals.

Heard before Hon. H. A. Sharpe. Action by Lewis Whaley against the Sloss-Sheffield Steel & Iron Company for damages to his property caused by the explosion of dynamite or other explosive substance. From a judgment for defendant, plaintiff appeals.

Heard before Hon. Charles A. Senn. Action by Robert Johnson against the Western Union Telegraph Company for damages from delay in delivery of a message. Plaintiff had judgment, and defendant appeals.

Heard before Hon. C. G. Nesmith. Action by K. D. Saunders against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Complaint Avas as follows: “Plaintiff claims of de- ' fendant $1,999.99 as damages, for that heretofore, to wit, on the 12th day of September, 1905, defendant was in the business of transmitting by wire from Birmingham, Alabama, to Ft.

Heard before Hon. A. O. Lane. Action by Mrs. Mattie Burns against tbe Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. With the exception of replication 4 to plea 2, the pleadings sufficiently appear from the opinion.

Heard before Hon. Thomas W. Knight, Special •Judge. Action by Dora S. McEacbin against the mayor and aldermen of tbe city of Tucaloosa for damages to abutting property on account of tbe removal of shade trees from tbe edges of tbe sidewalk.

Heard before Hon. William Jackson. Action by Mrs. D. J. Allinder against the Bessemer Coal, Iron & Land Company for fraud and deceit. Judgment for defendant and plaintiff appeals.

Heard before Hon. A. A. Coleman. . Action for malicious prosecution and false imprisonment by William Hendricks against C. M. Lacey and another. Plaintiff had judgment, and defendant appeals.

Heard before Hpn. Tennis Tidwell, Special. Trover by Martha L. Young against John L. Brock and others. Judgment for defendants, and plaintiff appeals. For former report of this case, see 147 Ala. 668, 41 South. 954.

Heard before Hon. W. W. Haralson- Action by J. W. Gilbreath against James T. Ham-rick and others for trespass and unlawfully seizing goods. Judgment for plaintiff and defendant appeals. The court erred in refusing to permit plaintiff to ask plaintiff as to his testimony on former trial. — Polly v. McCall, 37 Ala. 20; 1 A. & E. Ency. of Law, 675; 2 Id. 508.

Heard before Hon. T. W. Coleman, Jr. Action by D. P. Haynes & Bro. against W. C. Gray for conversion. From a judgment for plaintiffs, defendant appeals. The plaintiffs relied upon two mortgages executed by M. W. Johnson to them, conveying the entire agricultural crop grown or raised by him or his tenants in Calhoun county, Ala., during the year 1903.

Heard before Hon. John H. Disque. Trover by Harvey Wright against F. N. Hudson. From a judgment for plaintiff, defendant appeals.

Heard before Hon. Tan creé Betts. Bill by Franklin Alter against West Huntsville Cotton Mills Company and another.

Heard before Hon. L. D. Gardner. Bill by The Dothan National Bank against R. D. Crawford as administrator of the estate of A. B. Jones, deceased, to enforce a trust upon money in the hands of an administrator. Decree for respondent and complainant appeals. A mortgagee has three remedies. — An action to recover the debt. '2nd, an action to recover the property, and 3rd, an action to foreclose the mortgage. — Tyson v. Webber, 81 Ala. 470.

Heard before Hon. A. H. Benners. Certain parties filed a. bill in the chancery court against Harry Rensford, et al., to compel a removal of the estate of his decedent from the probate to the chancery court, and for the appointment of a receiver.

Heard before Hon. Ormond Somerville, Special Judge. Bill by William A. Koepple against John E. Dailey to enjoin an ejectment suit and for other relief. Decree for complainant and respondent appeals. —The record shows that a motion to dismiss was made and insisted upon, and that the bill is without equity, hence, it will be dismissed on final hearing, even if not raised before. — J ackson v. King, 119 Ala. 320.

Heard before Hon. H. B. Foster; Bill by Martha C. Burroughs against James C. Burroughs, to enforce a vendor’s lien.

Heard before Hon. Saffold Berney. Bill by John H. Cowley and others, against the Louisville & Nashville Railroad Company, to enjoin the erection and maintenance of a passenger station and iron fence in and along a public street. Decree for complainant and respondents appeal. The bill does not show that the complainants were deprived of reasonable access to their property. — Jackson v. Bir. F. & M. Co., 154 Ala. 472.

Chancery Court. Heard before Hon. L. D. Gardner. ■ Bill by O. M. Mauldin against J; C. Blackman to enjoin the maintenance of a boom or. dam across a floatable stream, and for damages. Decree for complainant and respondent appeals. There is no sufficient allegation and no sufficient proof that the stream was a navigable stream, and this was necessary before the .plaintiff could maintain his. suit. — Lewis ' v. Coffee County, 77 Ala. 190.

Heard before Hon. Thomas H. Smith. Bill by B. E. Cox against Thomas C. Hand to reform description in a deed on account of mistake and fraud. Decree for complainant and respondent appeals. — The complainant had an adequate remedy at law by abatement of the purchase money to the extent that he is injured, hence, the demurrer was good. — Bridges v. McLendon, . 56 Ala. 327.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. W. H. Thomas.</p> <p>Bill by Will Singo and others against Mark D. Brainard to set aside a sale and to enforce a trust. From a decree overruling demurrers to the bill respondents appeal.</p> <p>-The allegation of fraud was not sufficient and the bill was without equity. — McDonald v. Pearsou, 114 Ala. 680; Reynolds v. Excelsior Go., 100 296; Longheim v. First Nat■ Bank, 98- Ala. 521. The bill was wanting in necessary parties and no reason is given for their omission. — Front v. Hoge, 57 Ala. 28; Parker v. Parker, 99 Ala. 239. At the time the purchase was made the contract of employment had ceased. — Baker v. Humphrics, 101 IT. S. 500.</p> <p>The demurrer was-general and unless the bill was without equity it was properly overruled. — Seals v. Robinson, 75 Ala. 363. The facts in the bill revealed a confidential, relation, and such a state of facts as to invoke the aid of a. court of equity — 'Noble v. Moses, 81 Ala. 530 and cases, there cited. See note in 38 Am. Rep. 388. As to relationship of attorney and client see. — Malione v. Kelly, 54 Ala. 552; Yonge v. Hooper, 73 Ala. 119. Counsel discuss other features of the evidence not necessary to be here set out.</p>

<p> BUI to Enjoin Vacating Streets. </p> <p>1. Statutes; Repeal; Legislative Power. — Except as restrained by the Constitution, the legislature has absolute power and may abrogate any right created by it, unless the same constitutes a contract or has become property which cannot be taken without compensation.</p> <p>2. Eminent Domain; Compensation; Closing Streets. — Sec. 235, Const. 1901, has no application to injuries caused by vacating a street so as to require compensation therefor.</p> <p>3. Same; Abutting Property. — Where only the corner of property touched the corner of a street to be closed and no part of said street was immediately opposite the property, such property was not abutting property so as to entitle the owner to damages for closing it, even if it be conceded that an abutting owner is entitled to compensation for vacating a street.</p> <p>4. Municipal Corporation; Vacating Streets; Persons Entitled to Object. — Owners of property not abutting on a street are not entitled to object to additional easements being imposed thereon, and hence, only abutting owners can question the right of a city to require a railroad to erect a depot in a vacated street as a condition precedent to vacating the street through which the railroad ran.</p> <p>5. Same. — If the vacation was otherwise valid, the fact that the ■city ordered it vacated in contemplation of its being occupied by .a railroad as a depot, did not affect the validity of the vacation.</p> <p>6. Constitutional Law; Inquiry as to Legislative Intent. — The courts are without power to inquire into the motive of the legislature in enacting a statute.</p>

<p> Bill to Enforce Vendor’s Lien. </p> <p>1. Pleading; Parties; Amendment. — The test of amendment is whether or not a recovery under the original 'pleading would bar a recovery under the amendment, and vice versa; if so, the amendment is permissible.</p> <p>2. Same; Departure. — Where the original bill sought to enforce a vendor’s lien byx complainant as the assignee of one person as vendor and the amendment sought to enforce the lien by complainant as the assignee of another person as vendor, the land being the same, such amendment set up another cause of action and rendered the bill, demurrable as for a departure.</p>

Heard before Hon. W. W. Whiteside. Bill by J. W. Tatum against A. A. Northen and another, to dissolve and settle a partnership, and for other purposes. From a decree for complainants respondents appeal. One partner cannot sue another as to partnership matters until there has been a settlement and a balance struck — Minor, 103; 4 Port. 497; 1 Stew 19; 10 Ala. 690; 58 Ala. 618; 82 Ala. 459. The bill was not sufficient. — 2 Mayf. 19.

<p> Bill to Annul Certain Contracts and Mortgages. </p> <p>1. Equity; Pleading; Multifariousness. — A bill by a corporation which in one aspect alleges that mortgages, executed in its name by a third person, are void because executed without authority and without. consideration, and which in another aspect alleges that the mortgagees are creditors of the corporation, and prays that their mortgages be declared a general assignment for the benefit of all creditors of a corporation, and to have the corporation declared insolvent, is multifarious, even under section 3095. Code 1907, as amended, since parties which are necessary parties to the bill in one aspect are unnecessary parties in another aspect</p> <p>2. Same. — While a bill in equity may be filed in different aspects. each aspect must make a good bill; where either is bad. the whole is bad. Each alternative of a bill should entitle complainant to the same relief in kind but not in degree, so that the court, •the bill being confessed, in decreeing relief on one state of fact can also respond and grant relief appropriate to the alternative state of facts.</p> <p>3. Same. — An amendment to a bill in equity must not present a new cause from that originally presented; and hence, where the original bill alleged that certain mortgages executed in the corporate name by a third person, were void because executed without authority • and without consideration, an amendment thereto alleging that the mortgagees were creditors of the corporation and seeking to declare the corporation insolvent, and the mortgage a general assignment for the benefit of the creditors, made a new cause of action, and changed the rights and character of the demand, thus created a repugnancy and rendering the bill bad on demurrer.</p>

<p> Bill to Declare Resulting Trust. </p> <p>1. Trust; Resulting Trust; Payment of Purchase Money. — A trust arises in l'avor of one who pays part of the purchase money of land upon the understanding and consideration that he is to have a corresponding interest therein.</p> <p>2. Same; Evidence. — In order to establish a trust in land on account of the payment of part of the purchase money he who seeks to establish it must make out his case by full, clear and convincing evidence.</p> <p>3. Statute of Frauds; Agreement to Sell Land — An oral agreement for the acquisition of title to a half interest in land purchased in the name of another is void under statute of frauds unless the party seeking to enforce it actually paid one-half of the purchase money in which event a trust arises in his favor.</p>

<p> Bill, for Reformation and Specific Performance. </p> <p>1. Reformation of Instruments; Right to. — When a writing fails to express some important element which it was the intention of the parties to express, or expresses it differently from their intention as the result of mistake or fraud, upon clear proof of the same equity will reform the instrument.</p> <p>2. Contract; Construction; Time of Performance.- — Where no time is specified in the contract for its performance the law fixes a reasonable term as the time in which it must be performed.</p> <p>3. Same; Mutuality.- — A contract must be taken in its entirety and where by its terms, one party is bound to consent to the change and closing of an avehue, and the other party is bound to make an extension of the avenue as changed in front of the property of the other party, the fact that there is a want of mutuality as to so much of the contract as requires a conveyance of the strip between the old and the new avenue does not render the contract wanting in mutuality.</p> <p>4. Vendor and Purchaser; Breach of Contract; Damages. — Jn a suit for breach of a contract to convey land the damage is the value of the land at the time of the breach.</p> <p>5. Appeal and Error; Review; Presumption. — Where the register’s report is silent as to the time of the breach of a contract fixing no time for performance, this court will, on appeal, assume that he found the breach to have occurred between the time of the execution of the contract and the filing of the bill.</p> <p>6. Same; Review of Demurrer on Appeal From Final Decree. — ■ A decree overruling demurrer to a bill may be brought up for review on final appeal.</p>

<p> Bill to Remove Estate to Chancery Court. </p> <p>1. Equity; Jurisdiction; Removal of Estates. — An heir or devisee of an. estate may, at any time, before the prohate court has taken steps for or entered upon a final settlement thereof, file a bill to remove the cause from the probate to the chancery court without assigning any other or special grounds of equity jurisdiction; and such a bill is .not of the class of suits prohibited by section 2803, Code 1907.</p> <p>2. Executors and Administrators; ¡Sales ' Under Order; Applica- • tion And Order; Chancery Practice. — The statutory requirements prescribed by section 157, Code 1896, being the sole authority for the sale of decedent’s land for distribution, must be observed by the .chancery court administering an estate.</p>

<p>Appeal from Elmore Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p> <p>Bill by Joseph Condon and others against George D. Hall, and others, for the partition of land: Judgment overruling demurrer to the bill and respondent appeals.</p> <p>The life estate is impossible under a parol agreement. — 16 Cyc. 616. It cannot be created by a parol agreement.— Authorities supra. The bill did not sufficiently describe the complainants their right and title to the land or their right to maintain the suit. — 3 Port. 352; 25 Ala. 285; 36 Ala. 594; 56 Ala. 260; Moore v. Lee, 105 Ala. 436; 5 A. & E. Ency. of Law, 1085.</p> <p>Under the deed appellees are tenants in common of appellant and have a right to have the land sold for partition. — Thormgton v. HaU, 111 Ala. 232; Bmarn v. Young, 109 Ala. 528. A life tenant cannot do anything to destroy the title of the remaindermen, nor can the life tenant hold adversely to the remaindermen. — Pickett v. Doe, 74 Ala. 122; Gramtón v. Rutledge, 50 South. 900.</p>

Heard before Hon. A. H. Benners. Bill by Mary E. Nelson against Joe D. Brown to annul a deed and to have dower and homestead alloted tso her. From a decree for complainant granting insufficient relief she appeals. Respondent also files a cross appeal.

Heard before Hon. A. H. Benners. Bill by K. H. White against James Craney and others to quiet title to land. Judgment for complainant,- and respondents appeal.

Clair Chancery Court. Heard before Hon. W. W. Whiteside. Bill by tbe Alabama Iron & Steel Company againsl Samuel O. Fowler to enjoin an ejectment suit, and to decree title to certain lands. From a decree overruling demurrers to tbe bill respondent appeals. Tbe relief sought is barred by laches. — 16 Cyc.. 180; Sternes v. Page, 7 How. 828.

. Heard before Hon. A. H. Benners. Bill by Southern Railway Company against A. J. Terrell and the Union Stone & Contracting Company for discovery, accounting, to enjoin a pending action at law, and settling the equities between the parties. Prom a decree overruling demurrers to the bill, defendants appeal.

Heard before Hon. W. H. Simpson. Bill of interpleader by J. I. Armstrong against Sallie G. Wheeler and others. Decree for complainant and Sallie Wheeler, respondent, appeals for herself and the others. There was sufficient delivery of the gift.— McHugh v. O’Connor. 91 Ala. 243; O’Connor v. McHugh, S9 Ala. 533; Walker v. Crews, 73 Ala. 412.

Heard before Hon. W. H. Simpson. Bill by Jacob Watkins against Sallie Carter and others to enforce resulting trust in land. Decree for respondent and complainant appeals. The-equity here sought to be enforced is one arising by operation of law not within the influence of the statute of' frauds and capable of being established by parol.— Homey v. Legg, 129 Ala. 625; 3 Brick. 785.

■ Appeal from Etowah Chancery Court. Heard before Hon. W. VW. Whiteside. Bill by Mattie I. Stringfellow against her father, H. R. Cooley, to establish a resulting trust in land.- Decree for complainant and respondent appeals. In order to establish cases of the character here sought the evidence must be clear and strong, unequivocal, and must establish the fact of the payment by the alleged beneficiary beyond doubt. — Pom. Eq.

Heard before Hon! L. D. Gardner. Bill by Thomas Crausby, and others, against William Crausby, and others, to redeem land from foreclosure sale. There was a decree holding the pleas filed by respondents sufficient, and complainants appeal. Title ivas' not necessa.rily litigated or settled between the parties in suits or bills for partition, and hence, the partition proceedings were not a bar to the present suit. — Wood v. Wood, 134 Ala. 566; Greenwood v. Warren, 121 Ala. 71.

City Court. Heard before Hon. William Jackson. Action by E. L. Edmundson against Moss Rockett.

Heard before Hon. H. A. Pearce. Action by the-Western Union Telegraph.’Company against the City of Troy to recover license tax paid under protest.

Heard before Hon. A. O. Lane. Action by George Yin ter against the Birmingham Waterworks Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. O. Lane. Action by J. W. Ferguson against the Birmingham Water Works Company for breach of contract to supply water at his residence. Judgment for plaintiff and defendant appeals. It urns for the jury to determine Avhether there Avas a contract, and the court erred in stating that the plaintiff had shown a contract Avith the defendant. — Hare v. Little, 28 Ala. 236; Fur-ham v. Mayer, 54 Ala. 263; McIntosh v. The State, 140 Ala. 137.

Heard before Hon. John T. Lackland. Action by the Rudder-Adams Mill Company against J. W. Hurst to enforce a material-man’s lien. Judgment for plaintiff and defendant appeals. The court erred in rendering the judgment for the reason that there was no jury and verdict and no ascertainment of the fact of indebtedness. — Tisdale v. A. & G. L. Co., 131 Ala. 161; F. B. & I. Assn. v. Schall, 107 Ala. 534; Sections 4764-4770, Code 1907.

Heard before Hon. C. W. Ferguson. Assumpsit by Lathrop-Hatten Lumber Company against H. H. Goldstein. Judgment for plaintiff and defendant appeals. —Among the guaranteed rights of property is the right of contract, and this includes the persons with whom one may contract as fully as the property which may be its subject-matter. — Sullivan v. L. & N'., 128 Ala. 77, and authorities there cited.

Heard before Hon. C. W. Ferguson. Action by A. B. Perdue, administrator, against the Pennsylvania Casualty Company on a health insurance certificate issued to his intestate. Judgment for plaintiff and defendant appeals.

Heard before Hon. A. O. Lane. Action by R. B. Smyer against Baxter Rittenberry and others for the breach of a lease contract. From a judgment for plaintiff, defendants appeal. The lease was executed on the 17th day of July, 1907, for eight months, and was in the usual form, executed by T. H. Moulton & Oo., as agents for Smyer, and by the other parties to the suit.

Heard before Hou. B. M. Miller. Action by J. Fletcher Holmes and another against the Southern Iron & Equipment Company. Judgment for plaintiffs, and defendant appeals.

Heard before Hon. C. C. Nesmith. Action by the city of Birmingham against the Southern Express Company to recover a license or occupation tax. Judgment for defendant and plaintiff appeals.

Clair Circuit Court, Heard before Hon. A. H. Alston. Action by John A. Carwille, administrator, against Graves Franklin for the hire of a wagon and team. Judgment for defendant and plaintiff appeals. The court erred in excluding the answers of Mrs. Fitzgibbons to all the depositions as to the transactions made by or ivith the deceased. The objections thereto should have been filed at the proper time. — Sec. 4043, Code 1907; Gray v. Brown, 22 Ala. 270.

AppeaXj from Birmingham City Court. Heard before Hon. Charles A. Senn. Action by Art Wall Paper Company against R. D. Burnett Cigar Company and another. Judgment for plaintiff, and defendants appeal. Count 5 is as follows: “Plaintiff further claims of the defendant the sum of $1,500 as damages, to wit: That heretofore, to wit, April 17, 1906, plaintiff made to Messrs.

Heard before Hon. O. J. Semmes. Assumpsit by Charles Hudgens against the Creóla Lumber Company. Judgment for defendant, and plaintiff appeals.

Heard before Hon. John H. Dtsqtje. Assumpsit by the Doster-Northington Drug Company against O. H. Saxon, in which the Sun Insurance Company of New Orleans was made garnishee. Judgment by default was taken against Saxon, and, the answer of the Sun Insurance Company denying the indebtedness being contested, a judgment against the garnishee by default was rendered, which recited that the garnishee failed to appear and answer the contest of the answer of said garnishee.

Original petition in the Supreme Court. Mandamus by the state on the relation of the city of Birmingham to compel the judge of the Jefferson Criminal Court to proceed to try one charged with the violation of the municipal ordinance without a jury. An offense against the municipal ordinance is only quasi criminal in nature. —Camden v. Bloch, 65 Ala. 236; Coldthioaite v. Montgomery, 50 Ala. 486; Mobile v. Jones, 42 Ala. 630.

Original petition in the Supreme Court. Mandamus by the state on the relation of the city of Birmingham against Hon. William E. Port, judge of the Criminal Court, to compel him to transfer a case involving a violation of tlie city ordinance from the jury to the nonjury docket.

Heard before Hon. A. O. Lane. Quo warranto by the state on the relation of John Matthews against Carl H. Seals to test his right to the office of police commissioner of the city of Birmingham. Prom a judgment of ouster respondent appeals. Under the Code, section 1231, and the case of Gibson v. Wood, 43 L. R. A. 699, it is insisted that the judgment of the trial court should be reversed and that Seals should be allowed to continue in the exercise of his office.

Appear from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Mandamus by tbe state on tbe relation of C. W. Ferguson to compel tbe Birmingham Water Works Company to cease discrimination in its charges. Judgment for respondent and relator appeals. Tbe private contracts for tbe supply of water to consumers set out in Section 3 of tbe petition are valid, and indeed specifically enforceable. — Acts 1884-5, p. 415, Sec. 8; Am. Water Works Co. v. State ex rel.

Heard before Hon. A. O. Lane. Quo warranto by the state on the relation of A. B. Freeman against Louis Gelders and others to test the validity of a corporation. From a decree for relator, respondent appeals. Conceding that the original certificate of incorporation was defective, it ivas cured by the subsequent filing of the paper omitted. — Section 3461, Code 1907; Cook on Corporations, Sec. 5; State eos rel. v. Colias, 150 Ala. 515.

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard, before Hon. A. O. Lane.</p> <p>J. T. Ridgeway was prosecuted for violating an ordinance of the city of Birmingham, and the city takes this appeal, from a judgment acquitting the defendant.</p> <p>The cause was quasi criminal and it was proper for the city to file its declaration. — Allbright v. City of Cullman, 30 South. 415. The complaint followed the ordinance, and the court erred in sustaining demurrers thereto.</p> <p>Counsel insist that the appeal should be dismissed because the record nowhere shows that the appeal involves the validity of an ordinance of the city, and hence, the city has no right to appeal. — Sec. 1220, Code 1907.</p>

Heard before Hou. William Jackson. W. S. Eidge'was convicted of unlawfully keeping intoxicants on storage, and lie appeals. The ordinance is as follows: “Section 1.

Heard before Hon. S. L. Weaver. Fred Kreulhaus ivas convicted of a violation of one of the municipal ordinances of the city of Birmingham, and he appeals. Counsel insist that the acts permitting the affidavit to be made before the clerk of the inferior court of Birmingham and warrants issued by him returnable to said court is violative of section 5 of the bill of rights, Constitution 1901, and also violative of section 15 of said Constitution.

Heard before Hon. Thomas W. Coleman, Jr. W. O. Kelly was convicted of selling whisky in violation of an ordinance of the city of Anniston and he appeals. Counsel insist that it was error to permit to he shown that when the defendant and the person to whom he is alleged to have sold the liquor were arrested and carried to the police station that they were searched and whisky found on them, but cite no authority in support of their contention.

Heard before Hon. G. K. Miller. I). G. Williams was convicted of violating an ordinance of the city of Talledega imposing a license tax of $10(K00 upon telegraph companies doing an intrastate business in that city, Williams being the agent of the Western Union Telegraph Company, and having an office and transacting intrastate business there.

Heard before Hon. S. L. Brewer. Statutory ejectment by Eliza Hester and others against J. M. Gay and others. From a judgment for plaintiffs, defendants appeal. The deed from Wood to Moses was of date December 1, 1868, signed by W. W. Woods and' L. A. Woods, by their mark, and attested by John W. Gray.

Heard before Hon. W. J. Pearce. Ejectment by Mrs. Elizabeth Elder and others against C. C. Jones. From a judgment for plaintiff defendant appeals. Counsel discuss the merits of the appeal based upon exceptions taken by bill of exceptions with citation of authority in support of their contention. They insist that the bill of exceptions was signed properly. — Acts 1898-9, p. 178. The bill of exceptions should be stricken on the authority of Dial v- McKay, 43 South. 218.

Heard before Hon. W. W. Haralson. Ejectment by the Alabama State Land Company against A. J. Hogue. From a judgment granting insufficient relief the plaintiff appeals. Counsel discuss assignments of error, but without citation of authority.

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. William Jackson.</p> <p>Trial of tbe right of property levied upon under execution, between Jacob Epstein and Lightman Bros. & Goldstein, claimants. From a judgment adverse to claimants, they appeal.</p> <p>The following charges were refused to the claimants: (4) “If you believe from the evidence that the claimants paid a price for the goods not grossly inadequate to their value, and that such price was paid to the creditors of Kartus Dry Goods Company, then your verdict must be in favor of the claimant.” (5) “If you find from the evidence that in good faith claimants paid a price for the goods not greatly inadequate to their value, and paid the entire consideration to the creditors of the Kartus Dry Goods Company, then your verdict must Ik* for the claimant.” (7) “I charge you that an insolvent debtor can make a valid sale of his property, if the price received is fair and reasonable, and the entire consideration is paid to his creditors existing at the time of the sale.” (8) “If you find from the evidence that a fair and reasonable price was paid for the property, and all the consideration was paid to the existing creditors of Kartus Dry Goods Company, except a certain part which was set aside for plaintiff, and a good check therefor sent to him, which plaintiff did not receive or object to because it was in the form of a check and not cash, and that such part of such consideration still remains in the purchaser’s hands subject to plaintiff’s orders, then your verdict must be in favor of the claimants.” (9) “If an insolvent debtor makes a sale of his property for a fair and reasonable price, and the entire consideration is held subject to his creditors’ claims, and none of it is secreted, carried away, or applied to any other purpose than the payment of his valid debts, then the sale is a valid transfer.”</p> <p>The judgment is as follows, omitting the formal part: “ ‘We, the jury, find the issue in favor of the plaintiff, and assess the value of the goods levied on at $5007 It is therefore considered and adjudged by the court that the plaintiff have and recover of the claimant the said sum of $500, the value of the goods levied on, so assessed as aforesaid, together with all the costs in its behalf expended, for the recovery of which let execu tion issue.”</p> <p>The stockholders constitute the corporation. Where they agree to a sale of personalty, no directors meeting' and no formal action evidenced by minutes is necessary to its validity. —Jordan v. Gollins, 107 Ala. 572. The intent with which a conveyance is made is involved in every suit to set aside a conveyance as a fraud on creditors, hence evidence is relevant which shows the intent of the grantee and of the circumstances attending the conveyance. Teague v. Bass, 131 Ala. 424; 3 Mayf. Dig. 853. Where a conveyance is attacked as a fraud on creditors and the purchaser shows that it was supported by a valuable and sufficient consideration, the burden of proof shifts to the attacking creditor to show that it was fraudulent, such as that a benefit was reserved. — Morrow v. Gampbell, 118 Ala. 330; Moog v. Farley, 7G Ala. 246; Jordan v. Gollins, 107 Ala. 572. An insolvent debt- or may sell his property for a fair price provided the consideration is paid to creditors. — Rankin v. Vandiver, 78 Ala. 562; Cotlingham v. Greeley, etc., Go., 129 Ala. 200; 3 Mayf. Dig. 857-873. Inadequacy of consideration to invalidate a deed must be so gross as to shock the conscience. — Pope v. Brandon, 2 Stew. 401; Bozeman v. Draughan, 3 Stew. 243; McCaside v. Amarine, 12 Ala. 17; Prosser v- Herklerson, 11 Ala. 484.</p>