Volume 165 — Alabama Reports

Murder. Appeal from Cullman Circuit Court. Heard before 1-Ton. I). W. Speake. Luther Parker was convicted of murder in the second degree, and he appeals.

Murder. Appeal from Talladega City Court. Heard before Hon. G. K. Miller. Zack Stockdale was convicted of murder in tbe second degree, and appeals. The evidence for the state tended to show the killing of George Brown by Zack Stockdale by striking him twice with a rock — once while standing, and the second time while down on the ground as the result of the first blow.

<p> Murder. </p> <p>Appeal from Monroe Circuit Court.</p> <p>Heard before Hon. John T. Lackland.</p> <p>Cora Hutcherson was convicted of murder in the second degree, and appealed.</p> <p>The oral charge of the court, excepted to, is as follows : “The defendant sets up self-defense in this case, and before she can avail herself to it she must reasonably satisfy you that her life was in danger, either real or apparent, and that she had no safe mode of escape.” Charge 1, referred to, is as follows: “I charge.that,</p> <p>when the wife is living with the husband in his house, his home is her home, and the law imposed no duty upon her to retreat to avoid a difficulty, even with her husband, if she was free from fault in bringing on the difficulty.”</p> <p>— The court erred in refusing charge 1.- — Jones v. The State, 76 Ala. 8; Gary v. The State, 76 Ala. 86; Dolan v. The State, 81 Ala. 17; ■ Lee v. The State, 92 Ala. 19; Perry v. The State, 94 Ala. 29; Haugher v. The State, 105 Ala. 80. On these same authorities the court erred in its oral charge and in excluding evidence relative to former beatings of the wife by her husband.</p> <p>— Evidence of former difficulties was not admissible. — Stalhoorth v. The State, 146 Ala. 8. The court’s oral charge ivas correct, and the court correctly refused charge 1. — Maovwell v. The State, 129 Ala. 40; Howell v. The State, 79 Ala. 283; Goldsmith v. The State, 105. Ala. 8.</p>

Murder. Appeal from. Hale Circuit Court. Heard before Hon. B. M. Miller. Ed Howard was convicted of murder and he appeals: The facts sufficiently appear in the opinion of the court.

Murder. Appeal from Perry Circuit Court. Heard before Hon. B. M. Miller. John Griffiin was convicted of murder, and he appeals. The facts sufficiently appear in the opinion of the court.

Murder. Appeal from DeEalb Circuit Court. Heard before I-Ion. W. W. Haralson. O. Z. Smitli was convicted of murder in the second degree, and he appeals.

Murder: Appeal from Tuscaloosa County Court. Heard before Hon. Henry B. Foster.

Murder. Appeal from Chilton Circuit Court. Heard before Hon. W. W. Pearson. Hattie I. Pope was convicted of murder and she appeals. —The indictment should have been quashed and the demurrers sustained as it was returned by a grand jury summoned to appear at a regular term at a date not fixed by law and was not a grand jury summons for a special term.' — Section 7257, 7269, 7259, 7572-4; Levy v. The State, 48 Ala. 171.

Murder. Appeal from St. Clair Circuit Court. Heard before Hon. John W. Inzer. Walter Streety was convicted of murder and he appeals. — -The court erred in admitting what the defendant said prior to the killing relative to the condition of his wife and hard times.— Cadclle v. The State, 129 Ala. 65.

<p>1. Indictment; Motion to Quash; Record,. — -Where the court minutes and the grand jury venire showed that J. W. B., was foreman of the grand jury, and motion was entered to quash the indictment because it was not signed by the foreman as required by the statute, and the indictment was offered in evidence with the insistence that the name signed as foreman was L. W. B., and the state offered expert testimony to show that the signature was J. W. B., this court cannot, on appeal, pass upon the motion to quash, or put the court in error for overruling it without having the purported indictment before' it.</p> <p>2. Same; Absence of Signature; Hoto Raised. — The question of the absence of the signature of the- foreman on an indictment as required by the statute, cannot be raised by demurrer to the indictment.</p> <p>3. Appeal and, Error; Harmless Error; Admission of Evidence. — ■ Where the homicide was committed while the defendant and decedent and -decedent’s son were riding along the highway and the theory of the state was that the son put the weapons in the buggy, one of which decedent attempted to use during the difficulty, and the defendant’s theory was that the decedent put the weapons in the buggy with a view to trouble with the defendant when they left home, and followed him along the road until they met, it was harmless error to permit the son of the decedent to state whether he and his father had any conversation on the morning they left home and before leaving as'he answered in the negative.</p> <p>4. Charge of Court; Argumentative Instructions. — Charges which merely attempt to answer arguments of the opposing attorney are properly refused.</p> <p>5. Samo. — In a homicide case, a charge asserting that society or the county’s interest did not demand a conviction unless the evidence satisfied the jury beyond a reasonable doubt of the defendant’s guilt, was argumentative, if not abstract.</p> <p>6. Same; Invading Province of Jury. — A charge asserting that as a matter of law defendants stopping and securing a dog at a certain place was not evidence against him that he was not free from fault in bringing on the difficulty, was properly refused as invading the province of the jury.</p> <p>7. Same; Reasonable Doubt. — A charge asserting that a reasonable doubt might exist although there was no probability of defendant’s innocence from the testimony, and if the jury did not have an abiding conviction to a moral certainty of the guilt of the defendant they should acquit, was a proper charge, and its refusal was error.</p>

Manslaughter. Appeal from Montgomery City Court. Heard before Hon. Armstead Brown. Albert Green was convicted of manslaughter, and he appeals.

<p> Robbery. </p> <p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. S. L. Weaves.</p> <p>Mary Lewis was convicted of robbery and she appeals.</p> <p>— No brief came to the Reporter.</p>

Arson. Appeal from Limeston Circuit Court. Heard, before Hon. D. W. Speake. Dan McDonald ivas convicted of arson, and lie appeals. The following charges were refused to the defendant: “(2) If any individual juror is not convinced of the defendant’s guilt beyond a reasonable doubt and to a moral certainty, the jury cannot convict.

Forgery. Appeal from Jefferson Criminal Court. Heard before Hon. S. L. Weaver. John Davis was convicted of forgery, and appeals. . The indictment is as follows (omitting the formal charging part) : “John Davis, with intent to injure or defraud, did falsely make, alter, or forge an instrument in writing, in words and figures substantially as follows: “‘Birmingham, Ala., April 7, 1909.

Violating Prohibition Lem. Appeal from Pickens Circuit Court. Heard before Hon. A. H. Alston. Sam Walker was convicted of selling intoxicating liquor without a license and of otherwise disposing of the same, and he appeals.

Violating Prohibition Law. Appeal from Blount Circuit Court. Heard before Hon. John W. Inzer. John P. Calvert was convicted of violating the prohibition law, and he appeals.

Violating Prohibition Late. Appeal from Walker Circuit Court. Heard before Hon. T. L. Sowell.

Violating Prohibition Law. Appeal from Walker Law and Equity Court. Heard before Hon. T. L. Sowell. J. N. Chandler was convicted of violating the prohibition law, and he appeals. — No brief came to the Reporter. — -No ruling is shown on the demurrer to the affidavit, and hence, nothing is presented for review as to demurrer. — Boss v. The State, 62 Ala. 224; Garrett v. The State, 97 Ala. 18. The court did not err relative to evidence.

<p> Violating Prohibition Law. </p> <p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. William E. Fort-</p> <p>W. H. Moore was convicted of violating the prohibition law and he appeals.</p>

<p> Violating Prohibition Law. </p> <p>Appeal from Cleburne Circuit Court.</p> <p>Heard before Hon. John Peli-iam.</p> <p>Anderson Sadler was convicted of selling whisky, and he appeals.</p> <p>The witness for the state testified to having purchased whisky from the defendant and to have paid him 35 cents therefor some time in the month of June, 1905. The state was permitted to ask the defendant’s witness if it was not true that during the year 1905, and in June of that year, or along about that time, the witness had not shipped whisky in large quantities to the defendant from witness’s saloon in Atlanta, Ga., and if during that time he had not shipped to defendant much more whisky than the defendant could have drank. Objections were interposed to both of these questions and overruled. There was testimony as to the good character of the defendant in the community in which he lived.</p> <p>The following charge was refused to the defendant: “(3) The court charges the jury that they may consider the good character of the defendant, and may find the defendant not guilty, if such good character and the other evidence generates in your mind a reasonable doubt of his guilt.”</p> <p>— Counsel discuss the evidence relative to the shipment of whisky, to the defendant and insist that it was erroneously admitted, but cite no authority in support thereof. They further insist that charge 3 should have been given. — Webb v. The Stale. 106 Ala. 52.</p> <p>— -The evidence was not subject to any of the objections interposed, and no others will be considered.— McDaniel v. The State, 97 Ala. 14. Charge 3 assumes proof of good character and is properly refused.</p>

Violating Prohibition Lem. Appeal from Walker Law and Equity Court-. Heard before H'on. T. L. Sowell. J. N. Chandler was convicted of violating the prohibition law and he appeals. — No brief came to the Reporter. — The court cannot consider the motion to quash and the rulings thereon because not shoAvn by the bill of exceptions. — Jones v. City of Anniston, 138 Ala. 199. The court properly admitted evidence of the Amlue of the checks. — Wilson v. The State, 113 Ala. 104.

Violating Prohibition Law. Appeal from Jefferson Criminal Court. Heard before Hon. S. L. Weaver. Hickman Jordan was convicted of violating the prohibition law, and he appeals.

<p>Intoxicating Liquors; Affidavit; Sufficiency. — An affidavit reciting that M. being duly sworn deposes and says on oath that he has probable cause for believing that the offense of .selling or otherwise disposing of spirituous, vinous or malt or other intoxicating liquors, has been committed in said county by Pat Malloy, is a proper compliance with section 6703, Code 1907, and good against demmurrer.</p>

<p> Vagrancy. </p> <p>Appeal from Elmore Circuit Court.</p> <p>Heard before 1-Ion. W. W. Pearson.</p> <p>Augie Kimbell was convicted of vagrancy, and he appeals.</p> <p>No brief came to tbe Reporter.</p> <p>The court properly overruled the objection to the indictment. — Holland v. The State, 50 Ala. 215; Garrett v. The State, 97 Ala. 18; Stoneldn v. The State, 118 Ala. 68. The indictment followed the statute and was sufficient. — Traylor v. The State, 100 Ala. 142.</p>

Hunting on Lands Without Permission. Appeal from Walker Law and Equity Court. Heard before Hon. T. L. Sowell. George Scruggs was convicted of hunting on the lands of P'iaul Eads without permission, and he appeals.

Abusive, Insulting or Obscene Language. Appeal from Clay County Court. Heard before Hon. W. W. Pearson.

<p>1. Indictment and Information; Alternative Averments. — Alternative averments in an indictment must each present an indictable offense, and if one of them charges no offense, the indictment is bad in toto.</p> <p>2. Constitutional Law; Right to Life, Liberty and Property. — Section 6850, Code 1907, is not violative of section 1, Constitution 1901, nor of the 14th amendment of the United States Constitution.</p>

<p> Incest. </p> <p>Appeal from Marion Chancery Court.</p> <p>Heard before Hon. C, P. Almon.</p> <p>Fayette Palmer was convicted of incestuous adultery and lie appeals.</p> <p>— The court erred in refusing to continue the case to the next term, and grant defendant attachment for his witnesses returnable then. At least the court should have granted a continuance to a succeeding day of the term and had attachment for defendant’s witnesses returnable then. — Sec. 6, Const. 1901; Walker v. The State, 117 Ala. 85. The court erred in permitting it to be shown that only defendant, the female and her grand parents were staying at the house. ' The court should have permitted the defendant to show age of the female. — Section 7700, and 7897, Code 1907, and authorities there cited. The court erred in permitting the mother to state what the daughter told her the morning of the day of the birth of the child as to who was its father. On this sort of hearsay evidence Jesus Christ could be convicted of the murder of Abraham Lincoln. Counsel discuss other assignments of error relative to evidence, but without citation of authority. They insist that charge 20 should have been given. — Curd v. The State, 94 Ala. 100 •,Forney v. The State, 98 Ala. 21.</p> <p>— The court did not err in refusing a continuance. ■ — Terry v. The State, 120 Ala. 287. The court did not err relative to the admission and exclusion of evidence. —22 Cyc. 54; Be Hart v. The State, 109 La. 570.</p>

Abusive, Insulting or Obscene Language. Appeal from Bessemer City Court. Heard before Hon. William Jackson. Mrs. W. P. Gillman was convicted of using' abusive, insulting or obscene language within the hearing or presence of a woman, and she appeals. — Counsel discuss the errors assigned, but without citation of authority.

Habeas Corpus. Appeal from Mobile Circuit Court. Heai’d before Hon. Samuel B. Browne. Louisa Megs brought habeas corpus to .be discharged from the custody of the sheriff of Mobile county, because of unreasonable detention.

<p>1. Justices of the Peace; Jurisdiction; Extent of Punishment.— While a justice of the peace has final jurisdiction of the offense of cruelty to animals, if committed within sixty days of the issuance of the warrant, he has no authority to impose a hard labor sentence of. 180 days for fine and costs.</p> <p>2. Same. — Where, a justice of the peace has jurisdiction to- finally try and determine the matter, such as cruelty to animals, he should proceed to determine the guilt or innocence of the defendant and impose a proper punishment, and is without jurisdiction to hold accused for tidal after examination and commitment to the sheriff to that end.</p>

<p> Bill for Partition or Bivision. </p> <p>Appeal from Covington Chancery 'Court.</p> <p>Heard before Hon. L. D. Gardner.</p> <p>Bill by Jacob Sims and another against John Sims and another for a sale of land for division. Decree for complainants and respondents appeal.</p> <p>— On a bill filed for partition and division or for sale for that purpose the court will entertain and settle questions of advancement.— Comer v. Sheahee, 129 Ala. 528; Booth v. Foster, 111 Ala. 312; Marshall v. Marshall, 86 Ala. 383. Property given by a parent to a child is presumed to have been intended as an advancement. — Clements v. Hood, 57 Ala. 459. There was a valid delivery. — Griswold v. Griswold, 148 Ala. 239; Strielclarld v. Griswold, 149 Ala. 325; 13 Cyc. 569. Counsel insist that the inheritance was from the father and not from the mother in this case, and that being a life tenant the widow could not hold adversely to .the remaindermen. — Johnson v. Oldham, 126 Ala. 309; Gaperton v. Hall, 118 Ala. 265; Gintíra v. Western Ry., 96 Ala. 162.</p> <p>— The memorials of the death of Eldridge Sims prepared by his daughter at the time was admissible in evidence.— Cherry v. The State, 68 Ala. 29. This was important for upon the date of his death depends the descent and consequent title in this case. Even if he died prior to statute vesting the title of the land in the widow and the court should find that advancements were made, the respondent would not be entitled to the land. — Sections 3768-9-70, Code of Alabama.</p>

Bill for Divorce and to Enforce Trust. Appeal from Chambers Chancery Court. Heard before Hon. W. W. Whiteside. Bill by Parrie Lou Singer against Irma H. Singer, for divorce and to have lands conveyed to oratrix because paid for with funds belonging to her. Prom a decree overruling demurrer to the bill, respondent appeals. — The bill is clearly multifarious. — 147 Ala. 494. The court properly overruled demurrers to the bill.— 14 Cyc. 712 and 790; 16 Cyc. 274.

Bill by (Stockholders Against Officers of a Corporation for Misconduct. Appeal from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Bill by L. H. Harrison against C. A. Howze and others. From a decree overruling demurrers to the bill, respondents appeal.

<p>1. Appeal and Error; Harmless Error; Pleadings.- — Where the decree rendered conforms strictly to a decree responding to a bill to quiet title drawn within the letter of the statute and adjudged only that the defendant had no right, title or claim in and to the lands described in the bill, no error Intervened in overruling demurrers to the bill, if it be assumed that the bill sought relief beyond that possible under a statutory bill to quiet title.</p> <p>2. Judgment; Res Adjuddeata. — Persons not parties to a proceeding and not claiming under any of the parties thereto, cannot be prejudiced in their rights or titles by such proceeding, whatever the evidential admissibility and value of the court record may have been as a lint in a party’s chain of title.</p>

<p> Bill to Quiet Title. </p> <p>Appeal from Mobile Chancery Court.</p> <p>Heard before Hon. S. P. Gaillard, Special Chancellor.</p> <p>Bill to quiet title by Garland G. Stallworth and others against Richard Roberts and others. Complainants demanded a jury trial, and certain questions were certified to the circuit court, and a verdict rendered thereon. From a final decree dismissing the bill as to certain parties, but decreeing that they had no title in accordance with the issues found by the jury, complainants appeal.</p> <p>— Under section 812, Code 1896, the chancery court can order a new trial of the issues formerly submitted to the jury, and its action in refusing to do so may be reviewed on appeal.- — McCutchens v. hoggins, 109 Ala. 457; Matthews v. Furnace, 91 Ala. 159. A decree in chancery-may be affirmed in part and reversed in part. — Jeter v. Jeter, 36 Ala. 409; Patterson v. B lakeny, 33 Ala. 338; A. G. 8. v. Me Alpine, 80 Ala. 75; Jones v. Dial, cite. — 32 .Conn. 1, 26 N. H. 117; 25 N. C. 459; 46 111. App. 403; 43 Miss. 189; 15 S. W; 259; 1 N. J. L. 182. It was competent for the complainant to identify the lands conveyed by parol testimony. — Baucum v. George, 65 Ala. 259; Clements v. Pearce, 63 Ala. 284; Driggars v. Cassidy, 71 Ala, 529; Edwards v. Bender, 121 Ala. 81. Counsel discuss the rulings of the court on the evidence and in refusing-certain charges and in giving certain other charges, but without citation of authority. They insist that the court erred as to charges relative to effect of boxing the trees for turpentine purposes. — For dan v. The State, 143 Ala. 13.</p> <p>— Counsel insist that the kind of possession here shown is not sufficient to show a peaceable possession as distinguished from disputed possession.' — Randall v. Daughdrill, 142 Ala. 490; Lyons v. Arndt, 142 Ala. 488; Ladd n. Powell, 144 Ala. 408. The court properly ruled out the deed as being too indefinite and uncertain even when taken in connection with the parol testimony. — Hughes v. Wilkinson, 35 Ala. 453; Webl v. Elyton L. Co-, 105 Ala. 471; De-Jarnette v. McDaAiiel, 93 Ala. 215; Clements v. Pearce, 63 Ala. 284.- Having let the deeds, maps and plats be lost without first making use of them to identify the lands, complainants cannot now resort to other uncertain means of making these descriptions certain. — Saltenstall v. Riley, 20 Ala. 169; Kennedy 8. Co. v. Schloss Co., 137 Ala. 408.</p>

Bill for Partition or Division- Appeal from Pickens Chancery Court. Heard before Hon. Thomas H. Smith. Bill by Prank Hamby and others against Mary Ham-by and others, for partition of land, or a sale for a division thereof. Prom a decree holding a plea sufficient, complainants appeal. — The court erred in holding the plea sufficient.

Bill to Foreclose Mortgage. Appeal from Geneva Chancery Court. Heard before Hon. L. D. Gardner. Bill by The Faircloth-Byrd Mercantile Comapny to have a mortgage executed to it by Mrs. Evans foreclosed, and to declare a previous mortgage executed by Evan’s wife on the same land, void as security for the husband’s debt.

<p>Divorce; Custody of Children. — Where the wife secures a divorce from the husband on account of cruelty and shows a.reasonably good character, as good or better that that of the husband, and the children are of tender age, their custody is properly decreed to the wife.</p>

<p> A Bill Confessing Forfeiture of Lease and' Seeking Belief Against Same. </p> <p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by T. W. O’Byrne against the Jebeles & Colias Confectionery Company, as assignee of Mary F. Robinson. From a judgment sustaining demurrers to the bill, complainant appeals.</p> <p>The contents of the bill are sufficiently set out in the opinion. The notice referred to therein, so far as breaches of covenant are concerned, is as follows: “That for a stipulated rental reserved in said lease, and on condition that you will keep the property in repair and. in good order, and to keep the lot and appurtenances at all times in good and proper condition, and to keep said premises in good and sanitary condition, the undersigned, as assignees and purchasers from Mary F. Robinson, hereby declare the said lease forfeited and terminated, because of your failure to repair the building on said premises, when said repair was and is needed, and because the floors of the said building have become rotten in places and have sunken and have large holes in them, and the closets and plumbing are out of repair and unsanitary, and said building needs paper on the walls of said rooms which have become torn off in places, there are several leaks in the roof, which injure the building, all of which repairs have been needed for more than thirty days, and because said premises are not kept in good sanitary condition. The said lease having terminated by this notice, the undersigned has taken possession of the premises.”</p> <p>— The grantors of a reversion may not enter for a condition broken even though the covenant might be one that ran with the land. — 24 Gyc. 927; Taylor’s Landlord & Tenant, section 489. Counsel discuss the provisions of the lease, confess a forfeiture, but insist that under the facts in this case equity will relieve against it. — Schiefferlin v. Carpenter, 15 Wend. 409; Calhoun v. Wilson, 27 Grat. 94 U. S'. 53; 108 Cal. 208; 34 Ark. 246; 42 La. 230.</p> <p>— Counsel insist that the decision should be affirmed on the authority of section 3365, Code 1907; Doe v. Clayton, 73 Ala. 359; Otis v. McMillan, 70 Ala. 46. While forfeitures are not favored by courts of equity, yet, a court of equity will not, without some valid excuse prevent a landlord from reentering his own premises when the tenant violates the terms upon which the property is rented to him. — Miller v. Craves, 51 Mich. 482; Patton v. Bon, 50 la. 508; Jacksoni v. Allen, 3 Cow. 220; Tate v. McClure, 25 Ark. 168; Coiemcm v. Eight, 14 La. Ann. 564; Mayer v. Mitchell, 53 Md. 171; City of N. O. v. Rigney, 24 La. Ann. 235; Maxwell v. Todd, 112 N. C. 677; McCowey y. Puckett, 27 Ohio 669; Jcickson v. Harrison, 17 John. 66; Baldwin v. Reece, 6 Ohio, Dec. 869; Brown v. Vandergridt, 80 P. St. 142.</p>

Bill for Reformation and to Establish Boundary. Appeal from Bullock Chancery Court. Heard before Hon. L. D. Gardner.

Bill for Divorce. Appeal from Jefferson Circuit Court. Heard before Hon. A. A. Coleman. Bill by Nell Morrison against Roddy Morrison, for divorce on the grounds of cruelty and habitual drunkenness.

<p>1. Account; Equality; Discovery.- — Where, from the facts averred discovery is sought of matters peculiarly within the knowledge of the respondent, and without which complainant cannot establish the measure of his right against respondent, equity has jurisdiction of an accounting.</p> <p>2. Same; Bill; Sufficiency. — A bill for an accounting and discovery is sufficient in averment of facts leading to the necessity for a discovery where it set out the contract between the parties, alleged its assignment to complainant and furnishing under the contract of orders by complainant to respondent and the filling thereof by the complainant, the agency of the respondent for the complainant, that respondent had entire control and management of the sale of practically all the output of complainant’s mill, and the collection of the purchase money; that respondent would collect the same and was supposed to deduct his commission and account for the balance to complainant; also alleging that many cars of lumber were shipped and deals had aggregating in value many thousands of dollars, and that complainant was not able to prove or show the amount for which the lumber was sold except by aid of discovery; alleging also on information and belief that the respondent in many cases obtained a much larger price for the lumber than represented by his account thereof, and that by reason thereof respondent is largely indebted to complainant, but from the nature of the case it is impossible for complainant to state the amount of such indebtedness; alleging further several requests upon respondent to render an itemized statement of the account and respondent’s failure to do so, and that complainant had no way of arriving at a correct statement of account, except by discovery, and containing a detailed description of the way in which respondent handled and disposed of the orders charging in this connection the need of an accounting and discovery.</p> <p>3. Assignments; Instructions; Property Conveyed,. — An assignment conveying to the assignee all sums owing to the assignor under and by virtue of a certain contract, or under or by virtue of any transactions based upon or growing out of said contract, or any business done thereunder, conveys not only the claims arising out of the original contract but those arising under its extension by agreement.</p> <p>4. Sales; Contract; Construction. — The contract of sales in this cause examined and held to create the relation of principal and agent between the parties thereto, and not that of vendor and vendee.</p>

Bill to Enjoin Keeping Unlawful Drinking Place. Appeal from Montgomery Chancery Court. Heard before Hon. L. D. Gardner. Proceedings by the state on the relation of the Attorney General, against Joe Abraham by way of an injunction to prohibit the unlawful sale of whisky, resulting in a seizure of the fixtures, etc., for which Greii Brothers and B. S. Greil, interposed a claim by way of intervention.

<p>1. Mortgages; Foreclosure; Pan-ties. — In the foreclosure of a mortgage executed by one since deceased, the heirs of the mortgagor are indispensable parties and the personal representative is a proper party, and hence, the joining of the heirs and personal representatives in a bill for foreclosure did not render it demurrable as for misjoinder of parties respondent.</p> <p>2. Same; Accounting; Attorney’s Fees. — Where the note and mortgage provided for reasonable attorney’s fees in case the same was collected by an attorney, and the same was placed in the hands of an attorney for collection who filed the claim against decedent’s estate, the administrator was bound to tender a reasonable sum for attorney’s services up to the time of an agreement made subsequent to the filing of the claim by which the holder of the mortgage agreed not to exact payment of the debt until the summer following.</p> <p>3. Same; Foreclosure; Time. — Where, after claim filed in the probate court, it was agreed that payment of the note and mortgage would not be demanded before the following summer, a bil to foreclose filed on Aug. 4, following, was not prematurely filed.</p> <p>4. Parties; Indispensable Pan-ties; Omission. — Where, during the progress of the cause it appeared that indispensable parties have not been joined or have been omitted, the proceeding should be suspended until such parties are brought in, or the cause should be dismissed if the complainant, after reasonable opportunity, failed to bring in such party.</p> <p>5. Same; Defective Pan-ty; Objection; Waiver. — Where a bill is defective for want of proper parties, advantage of the defect should be taken by demurrer, plea or answer, and if not so taken, is waived unless the presence of the parties not joined is necessary to a disposition of the case on its merits, in which event, the court may notice it ex mero motu, or the objection may be made at the hearing of the court on the merits or on appeal.</p> <p>G. Appeal and Error; Parties; necessity of Objection in Lower Court. — While the omission of an indespensable party in a chancery case is available on appeal, without previous objection at the trial, yet, in order, however, to put the court in error, the absence of such parties must have been known or brought to its attention before the rendition of the decree.</p>

Bill to Quiet Title. Appeal from Mobile Chancery Court. Heard before Hon. Thomas H. Smith. Bill by Augustine Mealier against Henry Austin and others, to quiet title to certain lands. Decree for complainant and respondent appeals. — Adverse pos session to land does not run until title has passed out of the state. — Lowery v. Baker, 141 Ala. 600. Appellee was, therefore, a mere trespasser, without even color of title. — 1 Cyc. 1094; Smithe v. Henry, 41 Fed. 705.

<p>1. Corporations; Sale of Property Under Mortgage; Bill hy Stockholder to Redeem; Time. — Where the sale was made openly to the knowledge of the stockholders, the time for redemption by a stockholder on refusal of the corporation to do so is not extended beyond the two years fixed, by the fact that the person who bought from a stockholder the notes secured by deed of trust or mortgage, broke his agreement with the stockholder to defer the sale for a certain time.</p> <p>2. Same. — Where the stockholders are not misled into a belief that the corporation would act in the matter of redemption so that it would be unnecessary for them to do so, the fact that there was a collusion between the purchaser and the president of the company to prevent the redemption, would not extend the time beyond that fixed for redemption.</p> <p>3. Same. — The delay of stockholders to file a bill to redeem the property of the corporation from foreclosure sale is not excused because of the pendency of a suit of another nature, by other stockholders against the purchaser to secure the property for the corporation.</p> <p>4. Limitation of Action; Existance of Trust; Constructive Trust.— Fraud or collusion of the purchaser at the sale under foreclosure of the property of a corporation with the president of the corporation to prevent a redemption by the corporation does not raise a trust in favor of the corporation; so, the stockholders must redeem on refusal of the corporation, within two years of the sale or .within a year after knowledge of the fraud.</p> <p>5. Same. — A breach of promise made by one buying notes secured by a mortgage or deed of trust on the property of a corporation, to a stockholder thereof, of whom he bought the notes, that he would defer for a year the exercise of the power of sale under the conveyance, does not render the sale void, so as to make him on purchasing at the sale, a trustee for the corporation and suspend the running of the statute of limitations against a suit to redeem.</p>

<p>1. Reformation of Instrument; Mistake as to Subject Matter; Evidence. — Where it is sought to reform a conveyance in respect to. the subject-matter thereof so as to conform to the intent of the parties, the person complaining must show by' clear, exact and convincing proof that the intention and agreement he would have substituted in the instrument was that of both of the parties thereto. In this case, the evidence stated and examined' and held not to come up to such measures.</p> <p>2. Evidence; Res Q-estae; Statements Before Execution of Deed.— A statement made by a grantor to his wife a day or two before the deed was executed as to what was the agreement between the parties was not a part of the res gestae.</p>

Bill for Divorce. Appeal from Lee County Law and Equity Court. Heard before Hon. Albert E. Barnett. Bill by H. Ambrose Bass against Addie K. Bass, for divorce on account of impotency. Decree for respondent and complainant appeals. Limitations do not run against divorce.- — Nelson on Divorce, Secs. 515-7; Mosely v. Mosely, 67 Ga. .92. Tbe term discovery of the act complained of refers to adultery. — Bmedley v. Bmedley, 30 Ala. 714.

<p> Assumpsit. </p> <p>Appeal from Monroe Circuit Court.</p> <p>Heard before Hon. John T. Lackland.-</p> <p>Action by Self Brothers against J. R. Dees on the common counts for the price of timber. Judgment for plaintiff and defendant appeals.</p> <p>The bill of exceptions shows that the evidence tended to show that plaintiffs sold the defendant individually in June or July, 1907, all the pine timber standing and growing on a certain 120 acres of land in Monroe county at and for the price of $2.50 per 1,000 feet, said timber to be cut and removed as early as possible; that the defendant had cut and removed from said land between 118,000 and 120,000 feet, on which plaintiffs had received a payment of $65.17, which payment was made by the Limestone Lumber Company; that there was a balance of $225 due, with interest thereon- and that the agreement is not in writing. The evidence for the defendant tended to show that the sale was made to him for the Limestone Lumber Company, and that after the sale was made, under the direction of the Limestone Lumber Company, plaintiffs pointed out the lines to the defendant, and the defendant began cutting and hauling the timber; that defendant cut and hauled about 30 days, when plaintiffs stopped him, and said they were afraid that the lumber company would not pay them, and that they went to see the lumber company, and in a few days told defendant to go ahead with the cutting, and that defendant cut 15 or 20 days more, when the lumber company failed, and he had not cut any more for them. The’objections to evidence are sufficiently stated in the opinion of the court.</p> <p>The following charges were refused, to the defendant: “(1) The court charges the jury that an executed contract is one that is completed, and where nothing remains to be done by either party to the contract. (2) The court charges the jury that an executory contract is one where something remains to be done, such as determining the price, quantity, or identity of the thing sold.” (3) The affirmative charge found for the defendant.</p> <p>— The evidence tends to show that the defendant was merely an agent, and the burden is on the defendant of showing the credit was given to the agent exclusively. — Anderson v. Timberlalce, 114 Ala. 377. The contract was not executed, and hence, no recovery could he had on the common counts. — Beadle v. Graham, 60 Ala. 99; Stafford v. Sibley, 106 Ala. T89; Abercrombie v. Vandiver, 126 Ala. 532. Counsel cite. — 3 Words & Phrases, 2606, as to the distinction between express and implied contracts.</p> <p>— No brief came to the Reporter.</p>

Assumpsit. Appeal from Gadsden City Court. Heard before Hon. John H. Disqije. Attachment by C. R. Frix against J. H. Sligh, to enforce his lien for stumpage. Judgment for plaintiff and defendant appeals. — There was a variance between the complaint and the proof. Timber is not lumber. — Bobbins v. Otis, 1 Pick. 368; 22 A. & E. Ency. P. & P. 598. For analoguous cases, see.— Stewart v. Tucker, 106 Ala. 319; Wilkerson v. King, 81 Ala. 156.

<p>Appeal and, Error; Review; Exception; Necessity. — Although objection was interposed to certain statements of counsel, no exceptions appears to have been reserved to the ruling of the court thereon, and hence, there is nothing to revise here.</p>

Assumpsit. Appeal from Morgan Circuit Court. Heard before Hon. A. H. Alston. Action by Lorenzo Corey against J. A. Penney upon certain promissory notes. Prom a judgment for the plaintiff awarding insufficient damages, plaintiff appeals. — The court erred in overruling demurrers to defendant’s new plea 9 and in sustaining demurrers to plaintiff’s replication to such plea. — Nesbitt’s Case, 144 U. S. 610.

Action on Note. Appeal from Morgan Circuit Court. Heard before Hon. D. W. Speaice. Action by R. L. Stephenson as trustee in bankruptcy against E. H. Allison on an account due the bankrupt. Judgment for -defendant and plaintiff appeals. — Counsel insist, that there was no delivery of the policy. — Flanders on Insurance, 104 and note; Consumers M. Co. Case, 57 Atl. 440.

Assumpsit. Appeal from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Action by Brewer & Jones against tbe Mountain Terrace Land Company for work and labor done. Judgment for plaintiff and defendant appeals. — Counsel discuss the pleas on tbe demurrer to tbe complaint, but without citatiob of authority. They insist that tbe 2nd replication to defendant’s plea was insufficient. — Higgins Mfg.

Assumpsit. Appeal from Choctaw Circuit Court: Heard before Hon. John T. Lackland. ■ Action by J. G. Allen against A. C. Smith on insurance note. Judgment. for defendant and plaintiff appeals. See also 145 Ala. 657; 39 South. 615: — Counsel discuss the issues hut without citation of authority. — As to the question of agency see. — Queen’s I. Go. v. Young, 86 Ala. 424; G. II. I. Go. v. Allen, 128 Ala. 451.

Assumpsit.. • Appeal from Morgan Circuit Court.' Heard before Hon. D. W. Speake. Action by B. P. Hoimes and others against W. H. Phillips .and others, on a promissory note. Judgment for plaintiff in the court below, which was appealed by certiorari to the circuit court, where judgment was again rendered for plaintiff and defendants appeal.

Assumpsit. Appeal from Birmingham City Court. Heard before Hon. Charles A. Senn. Action by G. W. Piapot against Ben F. Barbour. From a judgment for defendant, plaintiff appears. The complaint contained four counts; the first three being on the common counts, and the other declaring on a breach of contract, for the building of a house.

<p> Assumpsit. </p> <p>Appeal from Aut-uaga Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Assumpsit by J. M. Sorrell against Cruise-Splawn Lumber Company. Judgment for plaintiff and defendant appeals.</p> <p>— Counsel discuss motion for a new trial and insist that the verdict ivas not even in accord with the plaintiff’s evidence.' Charge 1 should have been given. — ■Martin v. Massey, 127 Ala. 508. Unless the whole consideration is to be paid in money, the action must be on the contract declaring specially. — 4 Ency. P. & P. 925. A recovery cannot be had under the common count when the proof discloses that the cause of action is based on the special contract. — Snaclieor v. Leachman, 10 Ala. 330. Charge 2 should have been given, as the contract was entire.— Wolfe -17. Parkham, 18 Ala. 441; Martin v. Massey, supra. Charge 3 should have been given. — Martin v. Massey, supra; Burkman Bros. v. Spier, 56 Ala. 547.</p> <p>— There is no assignments of error, and the cause should be affirmed. — 67 Ala. 400. The bill of exceptions does not purport to set out all the evidence, and the presumption will be indulged that there was sufficient evidence to support the verdict. — Barwiclc v. Rachley, 45 Ala. 215.</p>

Assumpsit. Appeal from Houston Circuit Court. Heard before Hon. H. A. P:earce. Assumpsit by Meinhard & Schaul against C. W. Long. Judgment for plaintiff and defendant appeals. — If the account matured on July 6, 1900, then it was barred by the statute of limitations at the time the suit was commenced, and no amendment could take it without the bar of the statute, for if it did the subject-matter of the suit was changed. — Nelson v. First Nat.

Assumpsit. Appeal from Coosa Circuit Court. Heard before Hon. S. L. Brewer. Assumpsit by R. E. Brown against W. A. Corley. Judgment for plaintiff and defendant appeals. — Tbe defendant proved his pleas and ivas entitled to the affirmative charge. — Gilliland & Bon v. Martin, 42 South. 7. — The evidence was not so free from conflict as to entitle defendant to the affirmative charge. — 134 Ala. 242; 135 Ala. 537; 136 Ala. 562.

Assumpsit. Appeal from Coosa Circuit Court. Heard before Hon. S. L. Brewer. Assumpsit by Thomas Atchley against It. T. Carlisle. Judgment for plaintiff and defendant appeals. — On cross-examination, any fact may be elicited which tends to show bias or partiality in favor of the party in whose behalf the witness is testifying. — L. & N. B. B. Go. v. Tegnor, 126 Ala. 593; Drum v. Hwrrison, 83 Ala. 381.

Assumpsit. Appeal from Mobile Law and Equity Court. Heard before Hon. Sapfold Bernby. Assumpsit by Jackson Lumber Company against the McIntyre Lumber & Export Company. Judgment for the plaintiff and defendant, appeals. — The contract was wanting in mutuality. — Haslehurst L. & 8. Co. v. Mercantile L. & 8. Co., 166 Fed. 191; Comer v. Bankhead, 70 Ala. 144; Evans v. C. 8. 8. & R. Co, 78 Ala. 341; Highee v. Rust, 103 Am. St. Rep. 204; Morrow v. Southern 'Ex.

Assumpsit. Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Action by the Fairford Lumber Company against the Tombigbee Yalley Railroad Company. Judgment for defendant, -and plaintiff appeals.

Assumpsit. Appeal from Jefferson Circuit Court-. Heard before Hon. A. O. Lane. Assumpsit by the Messer-Moore Insurance & Beal Estate Company against Walter C. Agee, for commissions for sale of real estate.. Judgment for plaintiff and defendant appeals. Counsel discuss the charges refused, but without citation of authority.

Ejectment. Appeal from Pickens Circuit Court. Heard before Hon. A. H. Alston. Ejectment by W. E. Atkins against Charles Moody and others. Judgment for plaintiff, and defendants appeal. The facts seem to be that T. J. Moody purchased the lands in question from W. E. Atkins, and gave a mort gage to secure the purchase price, and afterwards conveyed the lands to the defendants.

<p>1. Ejectment; Pleading; Description of Property. — -Where the complaint describes the property as being a hotel and lot situated in a named town then occupied by a named person, it was sufficient, since it was capable of being made certain by proof.</p> <p>2. Same; Evidence. — Where the complaint alleged that the property sought to be recovered was occupied by a named person, the plaintiff had the burden of showing its occupancy by such named person.</p>

Ejectment. Appeal from Walker Law and Equity Court. Heard before Hon. T. L. Sowell. Ejectment by the Alabama Coal & Coke Company against the Gulf Coal & Coke Company. From a judgment for defendant, plaintiff appeals. Plaintiffs claim title through deed from one Peters, who claimed title from Key. The defendants claim title through Musgrove, and from Key to Musgrove. It was undisputed that Key made a deed to Peters, which in some manner got upon the records.

Ejectment. Appeal from Dale Circuit Court. Heard before Hon. A. A. Evans. Ejectment by E. T. Kelly against Henry Griffin and another. Judgment for defendants and plaintiff appeals. — The proof showed that appellant paid the purchase money and was put in possession, and that appellee claimed under appellant, and hence, the court erred in giving the affirmative charge. —Sec. 4899, Code 1907. — No brief reached the Reporter.

Ejectment. Appeal from Bullock Circuit Court. Heard before Hon.' A. A. Evans. Ejectment by Montgomery & Eufaula Railway Company, against W. J. Rutland. Judgment for defendant and plaintiff appeals.

Ejectment. Appeal from Conecuh. Circuit Court. Heard before Hon. J. C. Richardson. Ejectment by Chester G. White and others against J. E. Witherington. Judgment for plaintiffs and defendant appeals. Where both parties claim through a common source, both are estopped from denying title to him through, whom they claim. — 3 Mayf. p. 124.

Detinue. Appeal from Bessemer City Court. Heard before Hon. William Jackson. Detinue by W. D. Busk, against William Wright. Judgment for plaintiff and defendant appeals. — The seventh plea was good and the demurrer should have been overruled. — McIntosh v. Parker, 82 Ala. 239. Under the evidence in this case, the banking concern fell within the purview of Local Acts 1900-01, p. 2685, and hence, the court improperly admitted the mortgage in evidence.

Detinue. Appeal from Marshall Circuit Court. Heard before 1-Ton. W. W. Haralson. Detinue by John Evans against J. E. Snellgrove. Judgment for plaintiff and defendant appeals. For former report of this case see Snellgrove v. Evans, 145 Ala. 603; 40 South. 567. It was encumbent upon the plaintiff to prove the bona fieles of Snow’s indebtedness to him independently of the recitals of file mortgage. — Snell grove v. Evans, 145 Ala. 603.

Detinue. Appeal from Gadsden City Court. Heard before Hon. John H. Disque. Detinue by J. W. Bramlett against one Mooney, who suggested Pinckard & Lay as claimants of the property, to whom notice was issued to come in and defend, which they did. Judgment for plaintiff and defendants appeal. — The court erred in sustaining plaintiff’s demurrer to plea 2.

Detinue. Appeal from Coffee Circuit Court. Heard before Hon. H. A. Pearce. Detinue by the Norvell-Shapleigh Hardware Company against B. W. Morrow.

<p>■ Mortgages; Bona Fide Purchases; Record,; Priority. — Conveyances of personal property to secure debt or to provide indemnity are inoperative as against creditors and purchasers without notice, until recorded, and hence, where both parties claim under mortgages, one of which was executed, Feb. 13th, 190S, and filed for record 4 P. M. March 5th, thereafter, and the other executed on Feb. . 28th, 1908. and filed for record 8 P. M March 5th, thereafter, the mortgagee under the last mortgage in xioint of time acquired the •better title, neither having notice of the other, or facts sufficient to put them upon' inquiry.</p>

Contest of Stock Law Election- Appeal from Geneva Probate Court. Heard before Hon. P. O. Black. Action by M. H. Sellers against the Commissioners’ Court of Geneva County to contest a stock-law election. From a judgment dismissing the petitioner’s contest, he appeals.- The bill of exceptions recites that all the allegations of the petition were admitted, except the allegations contained in the fourth paragraph.

Penalty for Cutting Trees. Appeal from Henry Circuit C'onrt. Heard before Hon. A. A. Evans. J. E. Cummings sues J. B. Long to recover the penalty for cutting trees as prescribed by the statute.

Accounting by Administrator.- Appeal from the Coosa Probate Court. Heard before Hon. J. A. Crawford. Judicial accounting by J. G. Fulmer, as administrator de bonis non with the will annexed, of the estate of Hezekiak Allen, deceased. From a judgment overruling objections of L. C. Pierce and others to the accounting, the distributees appeal.

Violating City Ordincmce. Appeal from Barbour Circuit Court. Heard before Hou. A. A. Evans. Cliff Ventress was convicted in the mayor’s court for violating an ordinance of the Town of Clayton'. He appealel to the circuit court, and was again convicted, and again appeals. The ordinance alleged to have been violated was one against rolling at the crack, pitching at a mark, or matching coins for any money, cigars, soda water, or other thing of value whatsoever.

Judgment- by Default for Failing to Answer Interrogatories. Appeal from 01a.y County Court. ' Heard before Hon. W. J. Pearce. Action by J. S. Reeves & Co. and another against J. W. Sparks. Judgment for plaintiffs, and defendant appeals.

Violating City Orclinmice. Appeal from Jefferson Circuit Court. Heard before Hon. A. O. Lane. J. C. Simmons is prosecuted for violating a license tax ordinance of tbe city of West End, and on convictiou appealed to tbe circuit court.

Action Against Constable ancl Bond. Appeal from the Birmingham City Court. Heard before Hon. C. C. NeSmith. Action by S. A. Cefalu against J. T. Burton and others. Judgment for plaintiff, and defendants appeal. Dearborn & Warfield sued Cefaul for a typewriter, and the detinue writ was executed by Burton, by his deputy, by a seizure of the typewriter, and a delivery to the plaintiffs.

Mandamus. Original petition in the Supreme Court. Annie Hill seeks by mandamus to compel tbe Hon. W. W. Pearson as judge of tbe 15tb judicial circuit, to set aside an order by him, quashing service upon an unincorporated association. — Mandamus will lie for the purposes sought. — Wilson v. Duncan, 114 Ala. 569; Bob parte Woodruff, 123 Ala. 99; Brassell v. Southern C. Go., 131 Ala. 416; Ex parte Jones, 133 Ala. 212; Brady v. Brady, 144 Ala. 414.

Mandamus. Appeal from Montgomery Circuit Court. Heard before Hon. W. W. Pearson. Mandamus by H. K. Watts against the Montgomery L. & W. P. Co., to compel it to furnish gas in accordance with the rates fixed by the municipal contract franchise ordinance.

Violating City Ordinance. Appeal from Jefferson Criminal Court. Heard before Hon. William E. Fort. Charles Arzumanian was convicted of violating a city ordinance and appealed to the criminal court where he was again convicted, and he appeals.

Libel. Appeal from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Action by Charles A. Kelley against the Tennessee Coal, Iron & Railroad Company. Judgment for plaintiff, and defendant appeals. The writing referred to as contained in the complaint, is in the shape of a letter, addressed to Messrs.

Damages for Destruction of Lien. Appeal from Henry Circuit Court. Heard beforé Hon. A. A. Evans. Action by First National Bank of Headland against Howell and another as partners, for the destruction of an alleged lien under a. mortgage on a certain crop.

Damage on Account of Defect in Street. Appeal, from Birmingham City Court. Heard before Hon. C. C. NeSmith. Action by James Smith against the Mayor and City Council of Ensley. From a judgment for plaintiff, defendant appeals.

Damage for Failure to Deliver Message. Appeal from Colbert Circuit Court. Heard, before Hon. C. P. Almon. Action by J. E. Fuel against Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. The facts and pleadings sufficiently appear from the opinion.

Damages for Delay in Delivery of Message. Appeal from Etowah. Circuit Court. Heard, before Hon. John W. Inzer. Action by Jane West against the Western Union Telegraph Company, for failure to deliver a message. Judgment for plaintiff and defendant appeals. — Plaintiff was not entitled to recover any damages growing out of the absence of her brother-in-law. — W. Ü. T. Go. v. Ayres, 131 Ala. 391.

Damages for Closing Place of Business. Appeal from Birmingham City Court. . Heard before Hon. Charles A. Senn. Action by Joseph Marsicano against the city of Birmingham to recover an amount of money deposited by him to insure his obedience to the excise laws of the city. Judgment for defendant and plaintiff appeals. — The contract was illegal for several reasons. — Clark on Conrtacts, 374- and 414; 7 A. & E. Ency. of Law, 117.

Injury to Person on Track. Appear from Houston Circuit Court. Heard before Hon. H. A. Pearce. Action by J. E. B. Smith, administrator, against the Central of Georgia Railway Company, for damages for causing the death of his intestate.

Injury to Person on Track. Appeal from Monroe Circuit Court. Heard before Hon. John T. Lackland. Action by Braxton B. Hobdy against the Manistee Mill Company for damages for personal injury. Judgment for plaintiff, and defendant appeals.

Injury to Licensee. Appeal from Wilcox Circuit Court. Heard before Hon. B. M. Miller. Action by John T. Morgan against the Louisville & Nashville Railroad Company, for personal injuries received while on a wagon way leading to the side of defendant’s station platform.

Damage for Loss of Goods. Appeal from Mobile Law and Equity Court. Heard before Hon. Saffold Bernet. Action by T. A. Hatter & Son, against the Southern Bailway Company, for damages for loss of goods.

Loss of Goods by Fire. Appeal from Chambers Circuit Court. Heard before Hon. S. L. Brewer. Action by Y. L. Burton against the Central of Georgia Railway Company for destruction of goods by fire. ■ From a judgment for plaintiff, defendant appeals. The facts are sufficiently stated in the opinion of the court.

Damage for Loss of Goods. Appeal from Houston Circuit Court. Heard before Hon. H. A. Pearce. Action by G. H. Malone against the Central of Georgia Bailway Company. Judgment for plaintiff, and defendant appeals.

<p> Loss of Goods 1>¶ Fire. </p> <p>Appear from Colbert Circuit Court. ■</p> <p>Heard, before Hon. C. P. Armón.</p> <p>Action by tbe W. T. Adams Machine Company against the Southern Railway Company for loss of goods by fire. From a judgment for plaintiff, defendant appeals.</p> <p>The complaint is in the following form: (1) “Plaintiff claims of the defendant $750 damages for the failure to deliver certain goods, consisting of the following machinery: (Here follows detailed description of same) — received by the defendant as common carrier to be delivered to plaintiff at Florence, Alabama, for a reward, which it failed to deliver.” (6) “Plaintiff claims.of the defendant the sum of $750 as damages, for that, whereas, on the 29th day of March, 1906, defendant received as a common carrier from the plaintiff, at Corinth, Miss., a lot of machinery, to wit: Here follows a detailed description of the machinery) — the property of the plaintiff, of the value of $750, which it agreed for reward to deliver in Florence, Alabama, to the plaintiff’s order*, and to notify Green & Jenkins, of Florence, Alabama. Plaintiff avers that some few days after the shipment of said machinery it reached Florence, Ala., and was held in defendant’s possession. And plaintiff alleges that after the said machinery reached Florence, Ala., and before it had been burned, plaintiff, through Green & Jenkins, inquired of defendant’s agents at Florence, Ala., whether said machinery had arrived, and was informed by said agent that it had not. And plaintiff avers that, prior to the burning of said machinery it made further inquiries as to the arrival of the said machinery of the defendants’ agents at Florence, Ala., and was each time notified that the machinery had not arrived. And plaintiff avers that, although it undertook in the manner aforesaid to get information of the whereabouts of said machinery after its arrival in Florence, Ala., it was unable to do so, and the defendant held possession of the same until it was burned, and wholly lost to plaintiff’s damage as aforesaid.”</p> <p>The demurrers take the point, first, that there was a misjoinder and that it does not appear that said inquiries were made after said machinery had reached Florence, and before a reasonable time had elapsed for the consignee to remove same, and that it appears that defendant’s liability as a carrier had terminated at the time said inquiries were made, but does not appear that there was any breach of its duty as a warehouseman, and that it does not appear that the fire occurred by reason of defendant’s negligence.</p> <p>The following pleas were filed by the defendant: (3) “The contract sued on was made in the state of Mississippi for the carriage of the machinery to Florence, in the state of Alabama. Said machinery was carried by defendant, to Florence, Ala., as required by said contract, and the car containing it was placed on defendant’s track at or near defendant’s said depot at Florence, on or about the 31st day of March, 1906, and a notice of its arrival was given to Green & Jenkins, by depositing a notice to that effect with postage prepaid in the post office at Florence, Ala., addressed to Green & Jenkins, at Florence, Ala., which was the address of the said Green & Jenkins, as shown by the contract of affreightment. Said notice was so mailed within a day or two after the arrival of said goods at Florence. Said Green & Jenkins did not call for said machinery, although it remained in said depot or warehouse until it was destroyed by fire on or about April 20, 1906, without fault on defendant’s part. And the defendant further avers that the plaintiff did not call for the said machinery prior to said fire on April 20, 1906.” Plea 4 is the same as 3, except that it alleges that notice was mailed on April 18, 1906, instead of a day or two after the arrival of the goods. (5) “The contract sued on is made in the state of Mississippi, for the transportation of the said machinery to Florence, Ala., said machinery was duly carried by defendant to Florence, Ala., as required by said contract, and the car containing said machinery was placed on defendant’s track at or near the depot or warehouse at Florence, Ala., on or about, the 31st day of March, 1906, and the plaintiff on March 30, 1906, notified said Green & Jenkins, at Arthur, Ala., that skid machinery had been shipped to Florence, Ala., and plaintiff had drawn on said Green & Jenkins for $300, balance of cash payment on same. Said Green & Jenkins did not call for said machinery until after it was destroyed by fire, on or about April 20,1906, and such fire occurred without fault or want of reasonable care on the part of the defendant. And the defendant further avers that plaintiff did not call for said machinei’y at Florence, Ala., prior to said fire on April 20 ,1906.”</p> <p>The following charges were refused to the defendant: (8) “There is no evidence in this case that Green & Jenkins were the agents of the defendant.” (9) “Under the evidence in this case, the defendant cannot be lield liable as a warehouseman.” (10) “I charge you that neither Mrs. Moore, nor Mrs. Beaton, nor Mr. Kyser was the agent of plaintiff in making inquiry for said machinery, under the evidence in this case.” (5) “If you believe, from the evidence, that the machinery had been safely carried to Florence, and remained there in the car in which they were shipped on defendant’s track, at or near the depot of defendant, until it was destroyed hy fire on April 20, 1906, and that within three or four days after the arrival of said machinery at Florence the defendant’s agents or employes mailed a postal card addressed to Green & Jenkins, at Florence, Ala., notifying them of the arrival of said machinery, I charge you that the defendant would not he liable under the first count of the complaint.” (6) “If you believe,, from the evidence, that the machinery arrived in Florence on March 31, 1906, and that within three or four days thereafter defendant’s agent or employe mailed a postal card notice, addressed to Green & Jenkins, at Florence, Ala., notifying them of the arrival of said machinery and the machinery remained there until it was destroyed hy fire on April 20, 1906, then the defendant would not be liable as a common carrier.” (A) “If you believe, from the evidence, that plaintiff, the W. T. Adams Machine Company, did not use reasonable care and diligence to prevent the loss of said machinery, and allowed it to remain at Florence, Ala., for 20 days after its arrival there, and if you further believe, from the evidence, that said fire was not caused by the defendant’s negligence, your verdict must he for the ■ defendant.” (7) “If you believe the evidence, and that plaintiff is entitled to recover, it cannot recover more than $600, with interest thereon from March 31, 1906.”</p> <p>Count 6 was a departure from the action stated in the original count of the complaint, and the court should have sustained demurrer thereto for a departure. The court erred in sustaining demurrers to pleas 3, 4, and 5. — Soitthern Ry. Co. v. Harrison, 119 Ala. 539; A. & A. R. R. v. Led-better, 92 Ala. 326; Frederick v. L. & K-, 133 Ala. 486; Tallassee F. M. Co. v. Western Ry., 128 Ala. 167; Collins v. A. G. 8., 104 Ala. 390. The notice was sufficient to relieve the railroad company of liability as a common carrier, and after it its liability was only as a warehouseman. — Collins v. A. G. 8., supra. This was a defense against an action against the carrier as such.— Tallassee F. M. Co. v. Western Ry. Co., supra; Frederick v. L. & N., supra. A warehouseman is only liable •for negligence. The replications were a departure from the original complaint and demurrers should have been sustained thereto. Appellants insist that the court erred in refusing charges 1, 2 and 3, as well as charges 8, 9 and 10, 5 and 6, but cite no authority in support thereof. ’ They insist that charge A should have been given on the authority of L. A N. v. 8ulVmm T. Co., 138 Ala. 379.</p> <p>— Counsel insist that count 6 did not constitute a departure, but cite no authority in support of their contention. They insist that the court was not in error as to the pleas.— L.-A K. v. McGuire, 79 Ala. ; 8. AN- R. R. Go. v. Wood, 66 Ala. 168; Cullom v. A. G. 8., 104 Ala. 395. They insist that under the facts the carrier’s common law liability was not changed to that of warehouseman. • — 8- A N- R. R. Co. v. Wood, supra; A. A T. R. R. Co. v. Kidd, 35 Ala. 209; L. A K. v. Gilmer, 89 Ala. 545. Counsel discuss the replications to the pleas, and insist that no error was committed thereto, but cite no authority in support thereof. Charges 1, 2 and 3 were properly refused. — L. & N. v. McGuire, supra; S. & N. v. Woods, supra. Counsel discuss the other charges assigned as error, but without citation of authority.</p>

Delay in Delivery of Goods. Appeal from Mobile Circuit Court. Heard before Hou. Samuel B. Browne. Action by James A. Lewis against tbe Southern Railway for damages for delay in delivery of freight.

<p> Damages for Causing Overflow of Land. </p> <p>Appeal from Houston Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Action by Joe' Baker against the Central of Georgia Bailway Company for damage to land by overflow. Judgment for defendant and plaintiff appeals.</p> <p>Counsel discuss the motion to strike the bill of exceptions and insist that there is no showing that the bill was not signed within the time required by law, and it appearing that the bill was in fact' approved by the judge, it would" be presumed that it was signed and. approved within the time allowed by law. Counsel also discuss the merits of the appeal and cite authorities to sustain their contention, but it is not deemed necessary to here set them out.</p> <p>— Counsel insist that the bill of exceptions should be stricken under the express provisions of section 3019, Code 1907, and that no presumption will be indulged, that it was signed and approved within the time. — Morris v. Bran-non & Bon, 103 Ala. 602, and authorities there cited. Counsel also discuss the merits of the case, and cite authority in support of their contention.</p>

<p>1. Appeal and Error; Harmless Error; Evidence. — Where the answers are favorable to the party complaining, error in sustaining objection to question is harmless, especially where the objections were not interposed until after answer.</p> <p>2. Witnesses; Contradiction; Inconsistent Pacts. — Where it appeared that a witness would testify that he saw a person at another’s house on a certain day, such other person may testify that such witness was not at the house on that day, since it was simply the showing of a fact inconsistent with the latter’s statement, and not an impeachment of the witness without laying a predicate.</p> <p>3. Evidence; Opinion. — One cannot testify as to whether or not another person knew that a suit was pending.</p> <p>4. Trial; Argument of Counsel. — Where no fact is asserted, but simply an inference is drawn and an argument made, though not strictly pertinent to the issue, it is not error to refuse to exclude such argument.</p> <p>5. Charge of Court; Argumentative. — Argumentative instructions are properly refused.</p> <p>6. Same; Particular Facts. — A court cannot be required to charge that there is no evidence of a particular face.</p>

<p>1. Carriers; Passengers; Injury; Complaint. — A count which alleges that as plaintiff was in the act of boarding the car and was on one of its steps, the persons in charge of the car negligently caused it to lurch or jerk, causing the passenger to be thrown to the ground, is sufficient, since the words used imply notice of plaintiff’s position.</p> <p>2. Same. — A count alleging that the injuries complained of were proximately caused by the wantonness of the conductor in charge of the car while acting within the scope of his employment in that knowing that the passenger was in the act of boarding the car and knowing that to cause the car to start forward would likely injure the passenger, wantonly caused the car to start forward and wantonly inflicted the injuries complained of, is sufficient to charge wantonness.</p> <p>3. Same. — The‘action being for injuries to a passenger while attempting to board a car, a count alleging that the injury was caused proximately by the persons in charge of the car, while acting within the scope of their employment, because of the negligent manner in which they operated the car sufficiently sets forth the negligence complained of, and relied on.</p> <p>4. Same; Existence of Relation; Pleading. — An averment in a complaint that the defendant was operating streets cars as a common carrier of passengers for reward is tantamount to an averment that the carrier was a public carrier of passengers.</p> <p>5 Same; Contributory Negligence. — Pleas of contributory negligence which fail to set out the constituent elements of the negligence charged, are bad.</p> <p>6. Same; Evidence. — It was not error to refuse to permit plaintiff to testify that his little boy knew that he had fallen from the car, which is alleged to have injured him.</p> <p>7. Same; Wantonness; Jury Question. — The evidence stated in this case examined and held sufficient to require the counts charging wantonness to be submitted to the jury for a determination of that issue.</p> <p>8. Negligence; Contributory Negligence; Evidence. — Where the action was for injury to passenger while attempting to board a car questions as to his habits of riding on the platform on previous occasions were not permissible on the issue of his contributory negligence.</p> <p>9. Same; Contributory Negligence; Defense. — Contributory negligence is not available as a defense to a count charging wanton or wilful injury.</p> <p>10. Trial; Reception of Evidence; Necessity of Showing Purpose. —In the absence of a statement of a purpose to show the relevancy of questions prima facie inadmissible, the court will not be put in error for sustaining objections thereto, although when properly explained, the answers to the questions might be made relevant.</p>

<p> Injury to Passenger. </p> <p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. C. W. Ferguson.</p> <p>Action by Ella Harris against the Birmingham Railway, Light & Power Company for damages for injuries received while a passenger. Judgment for plaintiff, and defendant appeals.</p> <p>The first count is as follows: “Plaintiff claims of the defendant $5,000 as damages, for that- on, to wit, the 16th day of March, 1907, plaintiff was a passenger on an electric street car operated by the defendant in the city of Birmingham, Ala., for the common carriage of passengers for hire, and while in an effort to alight from said car plaintiff ivas thrown down and injured in her left hip and on her left arm and internally, and said injuries are permanent in their nature. Plaintiff avers that she suffered great mental and physical pain from and by reason of her said hurts and injuries, and that they are permanent in their nature; and she avers, further, that she has paid out large sums of money for medicine and medical attention to her wounds and injuries, and has lost time and money in being sick and sore therefrom and unable to work. Plaintiff avers and says that all her injuries and damages were proximately caused by the negligence of one or more of the defendant’s servants or agents or employes acting within the scope and line of their employment, and in the control, management, and operation of said street car upon which plaintiff was at the time a passenger.”</p> <p>The demurrers were as follows: “(1) Vague, uncertain, and indefinite. (2) It does not appear with sufficient certainty-what duty the defendant owed to plaintiff. (3) It does not appear wherein or how defendant violated any duty.”</p> <p>— The court erred in overruling demurrer to the 1st count.— Mobile L. & Ry. Go. v. Bell, 45 South. 56. The decisions which hold that negligence may be averred barely as a conclusion, also require the pleader to aver the facts from which a duty springs.</p> <p>— Count 1 is an exact copy of the 1st count in the complaint. — Armstrong v. Montgomery St. Ry. Co.,. 123 Ala. 233. On the authority of that case and the authorities therein cited, this cause should be affirmed. — K. O. M. & B. v. Flippo, 138 Ala. 487.</p>

Action for Injury to Passenger. Appeal from Madison Law and Equity Court. Heard before Hon. Tancred Betts. Action by Juliet Clanton against the Southern Eailway Company and another. Prom a judgment for defendants, on sustaining a demurrer to each count of the complaint, plaintiff appeals.

Action for Injury to Passenger. Appeal from Birmingham City Court. Heard before Hon. H. A. St-iarpe. Action by Miles Brown against the Central of Georgia Railway Company, for damages for injuries received while a passenger. Judgment for plaintiff and defendant appeals.

<p>Master and Servant; Contributory Negligence; Evidence.— Where the plaintiff was a switchman and stood between the rails of the track on which a switch engine was approaching at the rate of from two to four miles an hour, and who undertook to mount the footboard when the engine came within stepping distance, and fell and was injured, he -was guilty of contributory negligence barring recovery: this, notwithstanding, the footboard and the handhold were defective and he had a right as such switchman to ride on the footboard.</p>

Injury to Servant. Appeal from Walker Law and Equity Court. Heard before Hon. T: L. Sowell. Action by J. M. Phillips against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals.

Injury to Servant. Appeal from Walker Circuit Court. Heard before Hon. James J. Ray. Action by P. R. Lockhart against the Sloss-Sheffield Steel & Iron Company. Judgment for defendant, and plaintiff appeals.

Injury to ¡Servant. Appeal from Gadsden City C'onrt. Heard before Hon. John H. Disque. ■ Action by Mark Tallant against the Alabama Steel & Wire Company for personal injuries. Plaintiff had judgment, and defendant appeals.

<p>1. Master and, Servant; Injury to Servant; Defective Appliances. —Where the action is by a servant for injuries on account of a defective appliance, the servant has the burden of showing that the defect arose from or had not been discovered or remedied on account of the negligence of the master, or of some person for whom he is responsible.</p> <p>2. Same; Jury Question. — Whether a defect had existed for such a length of time as to render the master liable for a failure to remedy it, or to discover it, is one for the jury, where it appeared from the evidence that the notches on a quadrant on defendant’s engine was worn from use.</p> <p>3. Same; Evidence. — Where the engineer sued for injuries received from the flying out of a lever alleged to have resulted from a defective condition of the quadrant, it was competent to show that six or ten days after the accident and while operating the same engine, the lever flew out, as showing the defective condition of the quadrant.</p> <p>4. Same; Knowledge of Defect. — It not appearing that it was the duty of the servant to report to the master the action of the engine in respect to the lever when operated by him, testimony as to his failure to report the same to the master was inadmissible.</p> <p>5. Same; Instruction. — A charge denying the right to find from the evidence that the defendant or some person for whose fault the defendant was responsible within the Employers’ Liability Act was negligent in remedying the defect if it was discovred, was properly refused.</p> <p>6. Same; Reasonable Belief in Fitness of Appliance. — A charge which asserts that if the master has competent and careful servants in charge of the repairs of machinery, and that such servants as competent and careful men reasonably believed that the machinery and appliances are safe and fit, then no negligence can be imputed to the master, is properly refused, since reasonable and honest belief is not a factor in the ascertainment vel non of the negligence.</p> <p>7. Charge of Court; Immling Province of Jury — Charges asserting that there is or is not any evidence of a certain fact, are properly refused as invading the province of the jury.</p> <p>8. Witnesses; Bias. — It is competent to show that a witness who had testified for defendant told a witness who had testified for plaintiff that the latter’s testimony would cost him five years as tending to show bias or interest.</p> <p>9. Same; Examination; Speculative Answer. — It is proper to disallow a question which calls for a purely speculative answer.</p> <p>10. Same; Responsiveness.- — An answer which is not responsive to the question propounded, is properly excluded.</p> <p>11. Appeal and Error; Harmless Error; Evidence. — It is not error to exclude evidence which has been substantially given at another time without objection, or where the witness was later permitted to testify to the fact then sought to be elicited.</p> <p>12. Trial; Exclusion of Evidence; Necessity for Objection. — It is not error to exclude on motion evidence improperly admitted, although no objection was raised to the question which elicited the evidence.</p>

<p> Da-mage for the Improper TJse of Water. </p> <p>Appeal from Tuscaloosa County Court.</p> <p>Heard before Hon. H. B. Foster.</p> <p>B. E. Thompson sued the General Iron & Coal Company for the unreasonable nse of water of a creek which supplied his mill and ginnery. There was judgment for defendant and upon plaintiff’s motion the court granted a new trial, from which the defendant appeals. The plaintiff also took a cross appeal.</p> <p>— Counsel insist -that there is no ruling in the record of injury to the defendant, and that he was without right to a new trial, but cites no authority in support of his contention.'</p> <p>Counsel discuss the merits of the appeal and cites authorities in support-of his contention, and insists that on the cross appeal, the same questions are presented as upon the original appeal.</p>

Damages for Flooding Lands. Appeal from Shelby Circuit Court. Heard before Hon. A. H. Alston. Action by S. Z. T. Champion against the Central of 'Georgia Bailway Company, for damage for flooding land.

Damage for Flooding Land. Appeal from Calhoun Circuit Court. Heard before Hon. Á. H. Alston. Action by S. A. Lewis against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.

<p> Trover. </p> <p>Appeal from Geneva Circuit Court.</p> <p>Heard before Hon. H. A. Pearoe.</p> <p>Trover by C. D. Chapman & Co. against P. M. Met-calf, for sis bales of cotton. Judgment for defendant and plaintiff appeals.</p> <p>— Mere direction to the mortgagor to sell and pay the money to the mortgagee is not tantamount to a delivery of cotton to the mortgagee. — Keith v. Ham, 89 Ala. 590. Where both parties claim under the .same person, the defendant cannot show an outstanding legal title in another with which he does not connect himself. — Mitchell v. Thomas, 114 Ala. 495.</p> <p>— Counsel discuss the-issues presented and insist that there was a constructive delivery of the cotton to the transferee of the senior mortgagee, that he thus obtained the legal title and directed its sale. Counsel discuss the authorities cited by counsel for appellant and conclude that they have no application.</p>

False Imprisonment and- Malicious Prosecution. Appeal from Birmingham City Court. Heard before Hon. Charles A. Senn. Action by P. M. Cannon against A. A. Gambill for false imprisonment.

Trespass by Animals on Crop. Appeal from Fayette Circuit Court. Heard before Hon. S. H. Sprott. Action by W. H. Wallace against Victor Savage in trespass for damages resulting from stock going upon Ms crops.

Trespass for Cutting Trees. Appeal from Lamar Circuit Court. Heard before Hon. John' H. Bankhead, Jr., Special Judge. Action by Alfred R. Sandlin and others, against the Kennedy Stave & Cooperage Company, for trespass to land.

Damage to Realty ty Construction of Railway. Appeal from Houston Circuit Court. Heard before Hon. H. A. Pearce. Action by E. R. Porter and W. F. Newton against the Enterprise Lumber Company for damages resulting to their property brought about in a change in the grade of a street by the construction of a railroad therein.

Damages from Runaway Team. Appeal from Mobile Law and Equity Court. Heard before Hon. Saffold Berney. Action by the Standard Equipment Company against the Southern Hardware & Supply Company, for damages for injury to a mule, causing his death, alleged to have been inflicted by the negligence of the defendant’s driver, in leaving a team unattended on the streets, which ran away, causing the injury.

Damage to Land Toy Closing Way. Appeal from Birmingham City Court. Heard before Hon. C. C. NeSmith. Action by J. M. Meighan against the Birmingham Terminal Company. From a judgment for plaintiff, he appeals on the ground of inadequacy of damages. The case made by the complainant is: That the plaintiff was owner of a certain lot in the city of Birmingham, on Sixth avenue, which is particularly described, and that defendant within a year obstructed •or caused to be obstructed.

Damage for Failure to Deliver Message. Appeal from Chilton Circuit Court. Heard before Hon. W. W. Pearson. Action by L. M. Tidwell against the Western Union Telegraph Company for delay in the delivery of a telegram. From a judgment for defendant, plaintiff appeals.

Trover. Appeal from Mobile Law and Equity Court. Heard before Hon. Saffold Berney. Action by the Bay Shore Lumber Company against the Mobile, Jackson & Kansas City Railroad Company. Plaintiff had judgment, and defendant appeals.

Contest of Election. Appeal from Montgomery Probate Court. Heard before Hon. J. B. Gaston. Contest of an election of a justice of the peace instituted by J. C. Wilkerson against J. E. Cantelou. Judgment for respondent and petitioner appeals.

Contest of TV ill. Appeal from Montgomery Probate Court. Heard before Hon. J. B. Gaston. Proceedings to contest a will. From a decree holding the will invalid, and an order denying a motion for new trial, both prop on dent and contestant appeal.

Bill to Quiet Title. Appeal from Henry Chancery Court. Heard before Hon. L. D. Gardner. Bill Tby S. A. Elkins, against the Bank of Henry, to quiet title to certain lands. From a decree overruling demurrer to the bill, the respondent appeals. The decree of. the chancellor overruling- the demurrers to the bill should be reversed. — Sec. 5443, et seq. 447, 142 Ala. Ala. 486; 142 Ala. 490.

<p>1. Municipal Corporation; Obstruction of Street; Injunction. — A city may file a bill to enjoin as a nuisance the perpetration or continuance of an obstruction in its streets.</p> <p>2. Dedication by Plat; Loss by Hon User. — Where a street is dedicated by mapping and platting of land by tbe owner and the selling and conveying of lots with reference to tbe plat, such dedication is not lost by a mere failure to open the street or by a non user,’however long.</p> <p>3. Same; Streets; Width. — In order for a street to become dedicated by mapping and platting of a tract of land it must be shown by tbe plat that the strip sought to be made a street by dedication was in the street and a part of it when it was so mapped and platted; and where it appears that at other points the street was only fifty feet wide, and at the point where it was sought to declare a dedication, the street would be one hundred feet wide if such strip was included in the dedication, and it further appears that the map merely failed to show any platting of such strip into lots and that such strip was next to a railroad right of way and that for more than forty years, such strip had been treated as private property, and not as a part of the street, it will not be considered as having been dedicated.</p>

Petition for Injunction and Appoinmtent of Receiver. Appeal from Selma City Court. Heard before Hon. J. W. Mabry. J. E. Reese and others filed a bill for dissolution and distribution of the Minona Portland Cement Company, and pending suit, filed a petition for a temporary injunction pendente lite to preserve the status of the assets to abide the final decree. From an order granting the injunction respondent appeals.

Bill to Enforce Landlord’s Lien. Appeal from Chambers Chancery Court. Heard before Hon. W. W. Wi-iiteside. Bill by Nathan L. Atkinson as surviving partner of the firm of Atkinson & Turner against J. M. Walton, administrator of a tenant of said firm, to enforce a lien for rent and advances. From a decree overruling demurrer to the amended bill, respondent appeals.

Assumpsit. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Assumpsit by Mollie C.” Jordan against Charles H. Moore, aided- by garnishment, in which Thomas R. Rice intervened, claiming the funds garnished. From a judgment for claimant, plaintiff appeals. The charge referred to in the dissenting opinion are as follows: (1) Affirmative charge to find for the plaintiff.

Assumpsit. Appeal from Coosa Circuit Court. Heard before Hon. S. L. Brewer. Action by the Consolidated Portrait & Frame Company against M. P. Barnett and others. Judgment for defendants, and plaintiff appeals. The letter of credit referred to is in the following language: “Letter of Credit. Town of Goodwater, State of Alabama, May 28, 1907.

Petition to Set Aside Decree. Appeal from Montgomery Probate Court. Meard before Hon. J. B. Gaston. Dorcas Singo filed a petition as tbe widow of decedent George Singo requesting that certain property be set aside to her as such widow which was accordingly done by proper decree. Later, Jury Fritz, a minor by next friend, filed a petition seeking to have the said decree vacated, assigning various grounds therefor.

<p>Appeal from Mobile Chancery Court.</p> <p>Heard before Hon. Ti-iomas H. Smith. .</p>

<p>Appeal from Walker Chancery Court.</p> <p>Heard before Hon. A. H. Benners.</p>

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. D. A. Greene.</p>