Volume 166 — Alabama Reports

Heard before Hon. S. L. Brewer. George Crain was convicted of murder, and be appeals. Tbe jury law referred to can be found in Acts 1907, p. 238, and tbe record shows that tbe jury was drawn under said act, and not under tbe previous act relative to ■the drawing of tbe juries.

Heard before Hon. B. M. Miller. Joe McDaniel was convicted of murder in the first degree, and he appeals. Counsel discuss assignments of error, but without citation of authority. Counsel discuss the evidence objected to, but without citation of authority.

Heard before Hon. S. L. Weaver. Joseph Rogers was convicted of murder, and lie appeals. The record shows that the defendant was arraigned on April 15, 1909, and pleaded not guilty, when a day was set for his trial, and juries ordered drawn. The arraignment was of Joseph Rogers and Jim Powell, charged in the same indictment with the crime of murder.

Heard before Hon. B. M. Miller. Freeman Harrell was convicted of murder in the first degree, and he appeals. The facts are sufficiently stated in the opinion of the court. The following- charges were refused to the defendant: “(1) The court charges you, gentlemen of the jury, that if there are two constructions which may be placed upon any point in the evidence, one favorable to the defendant and the other unfavorable, you must follow the construction favorable to him.

<p> Murder. </p> <p>1. Homicide; Evidence; Prior Difficulty.' — It is not admissible to show the details of a prior difficulty in a prosecution for murder; only the fact that there was a prior difficulty may be shown.</p> <p>2. Same; Instructions. — Where the evidence tended to show that the deceased lived where he was killed, that about three hours before 'the shooting defendant and deceased had a difficulty, and that when deceased received the woufid from which he died, he was unarmed and not attacking the defendant, a charge asserting that the fact that a man makes threats against another does not put him out of the pale of society, and authorize the man that he had threatened to hunt him up and kill him, was not objectionable as being abstract.</p> <p>3. Same. — A charge asserting that the fact that decedent was at his house did not justify him in attacking the defendant or in killing his without cause, and if he did so and shot at defendant with a pistol, and defendant did not bring on the difficulty, then the defendant had the right of self defense, and if it reasonably appeared to the defendant as a reasonable man that his life was in danger or that he was in imminent danger of life or limb at the hands of deceased, he would be entitled to shoot deceased to death, etc., was not only faulty from being argumentative, but'pretermitted defendant’s duty to retreat.</p>

Heard before Hon. W. W. Haralson. Pone Lang was convicted of manslaughter in the first degree, and he appeals. The court, at the request of the solicitor, gave the following charges: “(1) You are the sole judges as to the credibility of the witnesses. (2) You are the sole judges as to the weight that should be given the testimony.

Heard before Hou. C. P. Almon. Will Smith, alias Jim Wallace, was convicted of homicide, and he appeals. Counsel insist that the defendant was not furnished with proper venire for the trial of his cause in that the venire was limited to the regular jurors drawn and summoned for the fourth week of the court. — Sec. 7265, Code 1907.

Heard before Hon. A. A. Evans. Balkom Fantroy was convicted of assault and battery, and he appeals.

<p> Assmlt With Intent to Murder. </p> <p>1. Conspiracy; Proof of; Circumstantial Evidence. — A conspiracy may be proven by circumstantial evidence, and in this case, the question as to whether or not there was a conspiracy between the defendant and another who committed the overt act, was one for the jury under the evidence.</p> <p>2. Appeal and Error; Harmless Error; Evidence. — 'Where evidence was subsequently admitted making the question of conspiracy one for the jury, any error in admitting evidence of the acts of an alleged co-conspirator of accused before the conspiracy had been shown, was rendered harmless.</p> <p>3. Evidence; Res Qestae. — Where the prosecution was for assault with intent to murder, and the overt act was alleged to have been committed by an alleged co-conspirator of defendant, it was admissible as part of the res gestae to show whether or not the ball from the pistol used hit any person standing near.</p> <p>4. Homicide; Pan-ties; Principals. — Where one commits an assault with intent to murder and another standing by gives to the one who fired it the pistol used for the purpose of committing the offense, both parties are conspirators equally guilty.</p> <p>5. Homicide; Assault 'with Intent; Evidence. — It was competent to show that the pistol used in the commission of the offense was loaded with a ball.</p> <p>6. Witnesses; Impeachment; Contradictory Statement. — A witness may always be impeached by showing inconsistent or eontracdictory statements made by him as to a material matter; and hence, where the charge was an assault with intent to murder, the overt act of which was committed by an alleged co-conspirator of the defendant, and such co-conspirator testified that the defendant did not give her the pistol used, which was a material fact, it was competent to show that after the act she said that the accused gave her the pistol, the testimony being limited to such purpose, although ordinarily statements of a co-conspirator made after the accomplishment of or failure of the object of the conspiracy are not admissible against the other.</p>

<p> Habeas Corpus. </p> <p>Habeas Corpus; Return to Writ; Prima Facie Case. — Where a prisoner is arrested upon the requisition of the Governor of another state, and brings habeas corpus for release, a return to the writ showing a demand or requisition for the person by the executive of another state, a copy of the indictment found or affidavit made charging the alleged fugitive with the commission of a crime, certified as authentic by the state demanding extradition, and the warrant of the Governor authorizing the-arrest, is sufficient, prima facie, to show that all the necessary prerequisites have been complied with prior to the issuance of the Governor’s warrant, and that the person is properly held.</p>

Appeal, from Tallapoosa Circuit Court. Heard before Hon. S. L. Brewer. Matthew Peters was convicted under Code 1907, § 6218, for sending a. letter, and appeals. The letter referred to is as follows: “Alexander City, Ala., 4-1-99. In re Eclipse Paint & Mfg. Co. v. W. M. Conine & Co. $37.50. Messrs. W. M. Conine & Co.— Dear Sirs: I wish to call your attention to the above matter and to remind you that it is unpaid.

Heard before Hon. S. L. Weaver. John Thomas was convicted of wantonly or maliciously disabling or injuring stock, and he appeals.

Heard before Hon. J. J. Ray. Eliza Whitley was convicted of mnrder and she appeals. Counsel discuss the merits of the case as raised by the charges and the evidence, but do not discuss the points decided. Counsel discuss the case as presented by the appellant with citation of authority, and on motion for rehearing insists that the indictment was properly endorsed, and that the clerk was guilty of a clerical error in failing to so show in the transcript.

<p> Defamation. </p> <p>Appeal anti, Error; Time for Talcing. — The time within which an appeal may be taken from a conviction is limited by statute to twelve months, and unless taken within that time, is unauthorized and cannot be considered.</p>

Heard before Hon. S'. L. Brewer. Ejectment by E. W. Thompson and another against Warren Logan. Judgment for defendant and plaintiffs appeal. Declarations made by a party in possession as to his title or interest are admissible in evidence. — Humes v. O’Brien, 74 Ala. 64; Fountain, et al. v. Beers, et al., 19 Ala. 728.

Heard before Hon. S. H. Sprott. Ejectment by Fannie Deason against Steve Stone and another. Judgment for defendant and plaintiff appeals! The deed in this case was executed under and is governed by the statutes of 1812 as found in Clay’s Digest, section 37. The decision in the case of Finley v. Hill, 133 Ala. 229, is based upon the statutes and authorities as they now exist.

Heard before Hon. J. C. Richardson. Ejectment by P. H. Bardelaben against J. C. Dickson and others. Judgment for defendant and plaintiff appeals. The provisions of the will in this case bring it squarely within the rule of Shelley’s Case. — 11 Am. St. Rep. 100; Wilson v. Alston, 122 Ala. 630. This rule having been abolished by the statute Sophie E. DeBardelaben did not take a fee simple title to the land. — Mason v. Pate, 34 Ala. 379, and authorities supra.

<p>Appeal from Mobile Law and Equity Court.</p> <p>Heard before Hon. Saffold Berney.</p> <p>Ejectment by John Doe on the demise of the State Land Company and another against Richard Roe with notice to the Factors & Traders Insurance Company. Judgment for defendant and plaintiffs appeal.</p> <p>Brief of counsel on the first submission of the cause did not reach the Reporter. On application for rehearing counsel for appellant insist, that the provisions of the statute is not extended to corporations as corporations are not citizens, and that the effect of the law creating a bar of limitations in favor only of citizens seems to be violative of the constitutional provisions discussed by out-court in the following cases. — 8. & JSf. R. R. 'Go. v. Morris, 65 Ala. 193; Smith v. L. <& N., 75 Ala. 449; Gulf G. & 8. 8. R. R. Go. v. EUis, 165 U. S. 150. Corporations are not citizens. — 7 Cyc. 136.</p> <p>No brief reached the Reporter.</p>

Heard before Hon. J. J. Ray. Action by J. W. Self against L. C. Comer in unlawful detainer, commenced in a justice court and removed upon application of the defendant to the Circuit Court as provided by sections 4283-84-85, Code 1907. Judgment for defendant and plaintiff appeals. The court erred in admitting the deed from Pierce to Self. — Arrington v. Sew. & W. R. R. Go., 95 Ala. 437. The omission of requisites is defensive matter. — Nelson v. Hubbard, 96 Ala. 238.

Heard before Hon. A. D. Sayre. Mandamus by Price Williams as judge of probatey against W. W. Brandon as state auditor, to require- him to issue bis warrant upon a certain fund for fees earned and alleged to be payable out of sucb fund. From a judgment granting tbe writ, tbe auditor appeals.

<p>Appeal from Crenshaw Circuit Court.</p> <p>Heard before Hon. J. C. Richardson.</p> <p>Detinue by H. Y. Brooke against C. L. Kettler. From a judgment for defendant, plaintiff appeals.</p> <p>The second plea referred to in the opinion is as follows: “Defendant says: That on, to wit, May 28, 1906, one M. Tucker filed in the chancery court at Luveme, Ala., his original bill of complaint against this plaintiff and others, and among other things said bill prayed for a settlement of the partnership affairs of the Crenshaw County Critic, a partnership, having for its members this plaintiff and one M. Tucker. Said bill also prayed that the partnership property be sold for the satisfaction of certain mortgages therein described. At the time of the filing of said original bill said M. Tucker filed his petition asking for the appointment of a receiver to take charge of said partnership property. That upon the hearing of said petition upon, to wit, August 10, 1907, the register of the said chancery court appointed one W. B. Howard receiver of all the property of the said Crenshaw County Critic, and empowered and directed him as such receiver to take possession of all the property of the said Crenshaw County Critic upon his entering into bond as required by said order. That on February 20, 1907, said Howard executed his bond as receiver, as required by the former order of the said register, and did, on, to wit, February 20, 1907, take charge of all the property of the said Crenshaw County Critic, including the property involved in this suit. That on, to wit, August 27, 1907, said H. Y. Brooke, the plaintiff in this action, filed his answer and cross-bill to said original bill of tbe said M. Tucker, and on August 23d, same year, said H. Y. Brooke also filed in said cause bis petition praying that tbe property of tbe Crensbaw County Critic then in tbe bands of a receiver be sold for tbe satisfaction of certain mortgages set out and described in said petition. That upon tbe bearing of said petition a decree was made and entered on, to wit, September 6, 1907, decreeing and commanding said receiver to sell tbe said property wbicb bad been committed to bis care. That on, to wit, November 5, 1907, said Howard as such receiver under and in pursuance of said order did sell all of tbe property wbicb be as said receiver took possession of, and that said sale was on January 23, 1908, duly reported by said receiver to said chancery court. Defendant alleges that said receiver did on July 27, 1908, in pursuance of an order of said chancery court, file in said cause an amended report of the property sold by him at said receivers sale, and that said amended report shows that be as such receiver under said order sold tbe property involved in this suit. Defendant further alleges that there has been no confirmation of said sale wbicb was made by said receiver under said order. Defendant further alleges that a.t said sale, one L. M. Johnson became tbe purchaser, and that on the--day of January, 1908, defendant bought of said L. M. Johnson tbe property wbicb has been sold by such receiver, and that said Johnson delivered to him under bis purchase all of tbe property of tbe said Crensbaw County Critic, including1 tbe property involved in this suit. Defendant further alleges that tbe suit of M. Tucker against this plaintiff and others is still pending in said chancery court and is undetermined, and that said receiver is still tbe receiver in said cause. Defendant further alleges that said H. Y. Brooke, tbe defendant in tbe said original bill, and the complainant to said cross-bill, and the party who petitioned for the sale of the property then in the hands of the receiver, did not and has not obtained any order or decree or consent from said chancery court authorizing or permitting him to bring said suit. Wherefore defendant prays judgment of this court that this suit be dismissed for want of jurisdiction, and defendant makes oath that his plea is true.”</p> <p>The suit in detinue was commenced on August 25th, 1908, and the following order was entered in the chancery court August 25th, 1909:</p> <p>In the above stated cause (Receivership) comes H. Y. Brooke and shows to the court in chambers that he claims individually certain personal property mentioned in his complaint in a detinue suit in the circuit court of Crenshaw county, filed against C. L. Kettler, which said personal property was formerly in the possession of the receiver appointed in this case, and which is represented to have been sold by the said receiver; and, whereas, the said circuit court has required as a condition precedent for the further prosecution of the said suit that the leave of this court should be given to the said H. Y. Brooke to prosecute said suit, now the court doth hereby order that the said H. Y. Brooke is given leave hereby to prosecute said suit for said property, and to show therein such title as he can for the recovery of the same, subject, of course, to any estoppel that there may be against him (whether there be or not, this court does not declare) arising from the prior proceedings in this cause. If the rignts of said Brooke have in any wise been con eluded by the prior proceedings in this case, the circuit court is competent to declare the same and will do so; if he has not bee*' concluded the circuit court will not hold him bound. (Signed by the Chancellor.)</p> <p>The demurrer to the special plea should have been sustained. — Beach on Receiv., pp. 669 and 715; High on Receiv., sec. 257. The suit in this case was not against the receiver, but against one not an officer of the court. A receiver may be sued personally and not as receiver without leave of court. — 23 A. & E. Ency. of Law, 1124; Beach on Receiv., p. 715. Parol testimony was admissible to show what was intended by the record.- — Thomason v. Odom, 31 Ala. 108; Gave v. Burns, 6 Ala. 780; 17 Ala. 733; 26 Ala. 504. Counsel discuss other assignments of error relative to charges, but without further citation of authority.</p> <p>The sale had not been confirmed and hence, the property was in gremio legis and had not passed to the purchaser who is sued in this case. — R. & D. R. R. Go. v. Sibert, 97 Ala. 393; Ex parte Branch & Go., 63 Ala. 386, and authorities there cited. The appellee’s second plea was a good-plea and presented a good defense. — Southern G. Go. v. Wadsworth, 115 Ala. 571; Tu-rrentine v. Blackwood, 125 Ala. 436. See also Gay, Bardie & Go. v. Brierfield G. & I. Go., 94 Ala. 303.</p>

<p>Appeal from Mobile Law and Equity Court.</p> <p>Heard before Hon. Saffold Beiiney.</p> <p>Detinue by the Southern Hardware & Supply Company against Prank Cazalas, Sheriff, for certain moneys. On motion of the sheriff, Lillie B. Lester was alleged to be the claimant of the property and was substituted as defendant. Prom a judgment for defendant plaintiff appeals.</p> <p>Under the facts in this case the principal may recover property misapplied by his agent so long as it is distinguishable. — 1 A. & E. Ency. of Law, p. 1175; Overseer of Poor v. Bank, 44 Am. Dec. 399. There was no question under the evidence about the identity of the money. — 31 Cyc. 1605, 1606; People v. Gallagher, 33 Pac. 892, s. c. 35 Pac. 81; Gommomoealth v. Tuckerman, 10 Gray 173. The contention of appellant is that it had absolute property in this money or fund drawn out of the banks and charged against it on th.e books of the bank, but that in any event under the facts in this case absolute property was not essential to maintain this action.— Stoker v. Yerby, 11 Ala. 322; May v. St. Glair, 11 Wall. 235; U. S. v. State Bank, 96 U. S'. 35. Where a substituted defendant is brought in as in this case, the plaintiff has the affirmative of the issue and the burden of proof rests primarily on him, but claimant is limited to the proof of her title. — Keyser v. Mass, et al., Ill Ala. 295. Claimant did not pretend to have title but insisted that the title to the money was in the banks which had paid it out. Her fraud deprived her of any claim against any party or the owner of the money.— Bir. Nat. Bank v. Bradley, 103 Ala. 120; Kitchell v. Jackson, 71 Ala. 561.</p> <p>In the first place the appellant corporation through its president invoked the process of the inferior criminal court to seize the money, and said court not only had the power but it was its duty to award the money to the party entitled to the same and until that was done that court had exclusive jurisdiction of the matter, and no other court had a right-to interfere. — Sec. 7770, and 7771-2, Code 1907; Sullivan v. Robinson, 39 Ala. 613; Henderson v. Phelps, 58 Ala. 590. It appears that the plaintiff did not have the right to immediate possession of the land at the time this action was commenced and hence, detinue will not lie. — Walher v. Fenner, 20 Ala. 192, and authorities supra. The relation between a bank and a. general depositor is that of debtor and creditor, and the money becomes the property of the bank. — Ex parte Jones, 77 Ala. 330; Alston v. The State, 92 Ala. 124. The sheriff was holding the money for the magistrate, the judge of the inferior criminal court, and he had neither the right nor the power without an order from that court to do anything with the money or to choose or determine what should be done with it. The gist of the action of detinue is the tortuous detention of the property, not the oiúginal taking. — Pruett v. Gtwrm, 48 South. 492.</p>

Heard before Hon. H. A. Pearce. Detinue by the F. A. Ames Company against the Slocomb Mercantile Company. Judgment for defendant and plaintiff appeals. Section 1017, Code 1896, has no application to purchasers at a bankrupt sale. — Section 70, Clause 5, Bankruptcy Act; Spenser v. Duplan Silk Go., 112 Fed. 638; Hewlett v. Berlin Mach. Whs, 11 Am. B. R. 709; 194 U. S. 246; 163 Fed. 496; 201 U. S. 352.

Appear from Marengo Circuit Court. Heard before Hon. John T. Lackland. Detinue by J. S. Ryall against Pearson Brothers. The court directed a verdict for the defendant, and tlie plaintiff appeals. Counsel discusses the action of the court in giving the affirmative charge for the defendant, but cites no authority in support thereof. No brief reached the. Reporter.

Heard before Hon. H. A. Pearce. Proceedings to establish a private road by L. F. Cook against B. R. Ballard. Judgment for petitioner, and respondent appeals. The charges requested by the respondent were as follows: “(1) The court charges the jury that this case is tried anew by them, and any assessment of damages or compensation heretofore made by the jury or the commissioners’ court will not control in this case and its determination.

Original petition in the Supreme Court. H. J. Allen petitions for a common law writ of certirorari to review a default judgment rendered against him by the Bessemer City Court. Judgments by default- cannot he taken where no declaration has been filed and served. — Wellborn v. Shepherd, 5 Ala. 674; Ranklin v. Crowell, Minor, 125; 2 Brick. 187, 138; 6 Ency. P. & P., 45-51.

Heard, before Hon. A. A. Coleman. Smith, Stewart & Company bad a judgment against N. C. Dean, and procured the issuance of an execution thereon. Dean moved to recall the execution on the ground that, the judgment had been satisfied before the issuance of the execution. Phom an order directing a recall of the execution the judgment creditor appeals.

Heard before Hon. G. K. Miller. The Chinnabee Cotton Mills was prosecuted for a failure to take out a privilege license and from a conviction thereon, appeals. The corporation was liable under subdivision 27b, section 2361, Code 3907, which tax was paid, and it was therefore not liable under subdivision 26. — City of Bessemer v. T. C. I. é R. R. Go., 131 Ala. 138; Montgomery T. Go. v. The. State, 150 Ala. 661.

Heard before Hon. A. O. Lane. Quo warranto by the State, on the relation of G. TV. Held: and on the return the majority was in favor of the incorporation, and on January 9, 1906, a petition purporting to be signed by more than 100 owners of real estate situated within the extension heretofore described was also filed in the office of the judge of probate.

<p> New Trial. </p> <p>Keiv Trial; 'Kevvly Discovered Evidence; Cumulative Evidence. —In an action for injury from the collapse of a platform, where the only evidence of neglignce in the construction, of the platform consisted in its falling when, and as it did, without its having on it at the time the full complement of people it was designed to accommodate, evidence was not cumulative, when offered as newly discovered evidence in support of a motion for new trial which tended to show that the platform was not braced, and was not properly constructed in the opinion of a witness experienced in such matters which evidence was not used on the original trial.</p>

Heard before Hon. C. C. NeSmith. Contest of election between B. P. Montgomery and E. A. Terry, for the office, of mayor of the town of Warrior.

<p> New Trial. </p> <p>New Trial; Grounds; Newly Discovered Evidence; Diligence.— Because of want of due diligence the absence of a letter disclosing a fact relied on at the trial, did not justify a new trial on the ground of newly discovered testimony where it appeared that with slight diligence, the party or his attorney could have ascertained whether either of them had the letter.</p>

<p> Detinue. </p> <p>1. Abatement and Revivor; Other Actions Pending. — A subsequent suit by a plaintiff against the defendant on the same cause of action is not precluded by a summons in the justice court purporting to be by the plaintiff against the defendant, but not signed by plaintiff or his attorneys and disowned by plaintiff as soon as he saw it, followed by a refusal on his part to prosecute the suit.</p> <p>2. Sales; Title of Buyer. — Where an owner of cattle sold them to-a buyer who paid the price for them, a subsequent sale of the same cattle by the owner to a third person did not pass title to such third person to the cattle.</p>

Heard before Hon. A. D. Sayre. Action by D. R. Dreyfus and another against C. S. De Jarnette. From a judgment for plaintiffs, defendant appeals. D. R. and Morris Dreyfus began their action for breach of covenant of warranty, quiet enjoyment, and against incumbrances against C. S. De Jarneixe nv attachment on the ground that said De Jarnette was a nonresident. Defendant answered by plea to the jurisdiction on the ground that the defendant was not a nonresident.

<p>Appeal from Mobile Circuit Court.</p> <p>Heard before Hon. Samuel B. Browne.</p> <p>Action by John Craft against William A. Shriner. From a judgment for plaintiff, defendant appeals.</p> <p>It appears from the record that Mary B. Shriner attached her signature to the contract, and was originally sued; but the complaint was afterwards amended upon her demurrer and motion, so as to strike her as a party defendant, whereupon the other defendant moved for a discontinuance because of the striking out of the party defendant. The other errors complained of are the sustaining of appellee’s demurrer to the second and third pleas of defendant; and they are as follows:</p> <p>“(2) That, subsequently to the making of said contract set out in the complaint, the plaintiff and the defendant modified said contract by mutual agreement, in this: The defendant requested the plaintiff in substance as follows: At the end of each week during the time that defendant should be at work on said contract on said building to advance a sufficient amount to satisfy the laborers on said building, and the plaintiff agreed with the defendant to so advance at the end of eacn week a sufficient amount to pay the laborers that work on said building.</p> <p>“(3) And for further answer to said complaint the said William A. Shriner alleges that, after he entered into a contract with the plaintiff, it was agreed between him and the plaintiff that the plaintiff should furnish at the end of each week the money necessary to pay the men employed by the defendant in the erection of said houses; and said defendant alleges that the plaintiff breached such agreement, in that he failed to furnish at the end of each week the money necessary to pay the laborers the defendant had employed in erecting said houses; and the defendant avers that such breach of the agreement by the plaintiff occurred before he (the defendant) abandoned the contract.”</p> <p>The demurrers were: To the second plea, that it does not appear that plaintiff failed to comply with his promise to advance; and that it does not appear that there was any consideration for. the promise to advance; and no justification is shown on the part of the defendant for his breach of the contract. To plea 3, because it does not appear that plaintiff elected to rescind such contract on account of the alleged breach; or that defendant’s promise was dependent on plaintiff’s promise to advance; and also no consideration.</p> <p>The other pleas set up the same matter in an amplified form and with more particularity, except the ninth, which is as follows:</p> <p>“(9) The defendant, as a defense to the action of the plaintiff, saith that at the time the said action was commenced the plaintiff was indebted to him in the ■sum of |250 damages, arising in connection with the contract described in the complaint, in this: That the buildings provided for to be erected under the contract described in the complaint were to be built upon lots •of land lying within what are known as the ‘fire limits’ •of the city of Mobile, within which limits it was unlawful to erect frame buildings, such as was provided in the contract described in the complaint should be erected on said lot, and the plaintiff agreed with the defendant that, because he was a member of the general council of the city of Mobile, he would have an ordinance passed by the general council of the city of Mobile excepting these lots from the provisions of said ordinance ancl permitting defendant to erect frame buildings on said lot, and that he would do this sufficiently in advance of the commencement of the contract to enable the defendant to begin the erection of buildings upon the day prescribed by the terms of the contract; but defendant says that plaintiff negligently failed to secure the passage of such ordinance as would exempt the buildings to be erected under the contract, from the provisions of law establishing the fire limits of the city of Mobile, until two weeks had elapsed after the time defendant was required to commence constructing said building under the terms of the contract, and the defendant says that by the said delay of the plaintiff he was damaged in the sum of $250, which he hereby offers to set off against the demand of the plaintiff, and he claims judgment for the excess.”</p> <p>Demurrers to this plea were that the agreement alleged is void for uncertainty and because it, does not set out the time when the alleged agreement was made. The other facts sufficiently appear in the opinion, with the exception that the suit was upon the breach of the contract made by Shriner to construct certain buildings for Craft, and which contract seems to have been abandoned by Shriner.</p> <p>A contract may be made which is partly in writing and partly oral. Murphy v. Farley, 124 Ala. 279; Moore v. Seaboard, 161 Fed. 99; Dannat v. Fuller, 22 N. E. 815; 2 Mayf., secs. 48 and 601. Parties may change or modify their contracts in writing at their pleasure without new consideration when such contract is not required by the statute of frauds to be in writing. — Prestutood 'V. Eldridge, 19 Ala. 72; Badders v. Dams, 88 Ala. 267; G-urthrie v. Campbell, 70 N. Y. 486; 5 Cur. Law, p. 462; 2 Mayf. p. 298. Further in support of, both propositions counsel cite. — 9 Cur. Law, pp. 421 and 431; 102 N. Y. Supp. 874, 112 N. W. 1003; 101 N. Y. Supp. 351; 105 lb. 70; 143 Fed. 929.</p> <p>The fact that there was an improper party as defendant was brought to the attention of the court by demurrer and the striking of such party did not amount to a discontinuance. — Jones v. Nelson, 51 Ala. 471; Masterson v. Gibson, 56 Ala. 56; Reynolds v. Simpkins, 67 Ala. 378; Jones v. Engelhardt, 78 Ala. 505; Englehardt v. Clan-ton, 83 Ala. 336; Crossthvmite v. Pitts, 139 Ala. 421. The court properly sustained demurrers to the plea,— Burkham v. Mastín, 54 Ala. 127. The party against whom a contract is violated has the option either zo rescind the contract on account of the breach, or to waive the, right to rescind, and sue for damages suffered by reason of the breach committed, holding the other party to a continued performance of the contract.— Powell v. Sammons, 31 Ala. 552; Stroms v. Mertief, 64 Ala. 299; Holloway v. Talbot, 70 Ala. 389; Marks v. Miller, 134 Ala. 347. In- any event the pleas were filed after the time of filing had expired, and it was optional with the court whether it would allow them to be filed. - — Reid L. Go. v. Leiois, 94 Ala. 626; Watson v. Herring, 115' Ala, 272. Parties may relegate to the architect the right to fix damage. — 6 Cyc. 13; 63 Pac. 833; 39 N. E. 394; 56 Am .St, Rep. 314; 175 U. S. 602; 114 U. S. 549.</p>

<p> Action on Insurance Policy. </p> <p>1. Statutes; Construction. — Separate sections of a statute should be construed so as to give effect to each and avoid a conflict, if that can be done without doing violence to the letter of either, and in accordance with the plain language and intent.</p> <p>2. Insurance; Avoidance of Policy; Misrepresentation. — While any contract relating to insurance is not binding on the insured unless expressed in the policy misrepresentations made by insured in an application for a renewal or for his reinstatement are binding on him though not expressed in the policy as renewed, if made with intent to deceive and the risk is thereby increased. (Construing together sections 4572 and 4579, Code 1907.)</p>

Heard before Hon. J. C. Richardson. Action by E. A. Broclie against the New England Mortgage Security Company for breach of covenants against encumbrance. Judgment for defendant and plaintiff appeals. The facts are deemed relevant as evidence which logically tend to prove or disprove the issue. — Steen v. Steadley, 126 Ala. 633. An encumbrance need not convey the legal title.

Heard before Hon. Charles A. Senn. Action by Evelyn Lokey against the National Life & Accident Insurance Company, upon a policy of insurance. Judgment for plaintiff and defendant appeals. The demurrers to the complaint should have been sustained. — Insurance Co. v. Bledsoe, 52 Ala. 538. The court erred in sustaining demurrer to the several pleas interposed by the defendant. .

Heard before Hon. Saffold Berney. J. B. Ellis & Co. obtained a judgment against E. A. Bayley, and on said judgment summoned the M. J. & K. C. R. R. Co., and another as garnishees. There was judgment discharging the garnishees and plaintiff appeals.

<p> Action on Insurance Policy. </p> <p>1. Constitutional Law; Insurance; Statutes.- — Construing together sections 4572 and 4583, Code 1907, it is held that they are not violative of section 1, article 14, Constitution of United States, but áre valid, and their effect was to supersede a provision in a policy of life insurance in an insurance company in Indiana written on an application executed in Alabama, reciting that the party stipulated that it should be an Indiana contract and should be determined in accordance with its laws.</p> <p>2. Appeal and Error; Harmless Error; Pleading. — Where the defendant had the benefit of the evidence on all the matters set up under pleas to which no demurrer was sustained, it was harmless error to sustain a demurrer to other similar pleas.</p>

Heard before Hon. Ti-iomas W. Wert. Action by Fairbanks, Morse & Co. against George Holland and others. Judgment for plaintiff, and defendants appeal. The first, second, third, and fourth counts are the common counts, and the fifth count is for breach of a contract, for the price of an engine and stem-wheel equipment to a boat, pleading the delivery of the machinery to the defendants and their failure to pay the balance of the contract price.

Heard before Hon. John T. Lackland. Action by tbe Janovicb-Calafiore Company and others against tbe North Italian Colonial Company. From a judgment for plaintiffs, defendant appeals. Tbe suit was commenced in tbe name of P. Janovich and F. Calafiore, partners, under tbe firm name and style of tbe Janovich-C'alalore Company, and sought recovery under tbe common count.

Heard before Hon. Saffold Berney. Action by Edward G. Fike against Georgia K. Stratton. Prom a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion.

Heard before Hon. A. H. Alston. Action by D. M. Drennen against Evans J. Dunn. From a judgment for defendant, plaintiff appeals. Tlie plaintiff, as a surviving partner, sought to recover judgment upon a judgment rendered on the 5th day of May, 1890’, which judgment is set out in the complaint.

Heard before Hon. Joi-in T. Lackland. Assumpsit by J. H. Compton against H. Kramer. From a judgment for plaintiff, defendant appeals. It appears tliat the controversy was over an amount advanced to John Wingate, and the evidence for the plaintiff tended to show that Wedemeyer came to plaintiff and asked him if he would advance to Win-gate corn, hay, oats, etc., for his team while he ivas hauling staves for the defendant, and that he advanced Wingate $304.30.

<p>Appeal from Tuscaloosa. County Court.</p> <p>Heard before Hon. IT. B. Foster.</p> <p>Action by J. M. Burroughs against T. J. Pate for breach of the covenant of possession and quiet enjoyment. Judgment for defendant and plaintiff appeals.</p> <p>The breach declared on is for quiet and peaceable possession when in fact the premises were not in the quiet and peaceable possession of the defendant, but were in the possession of one S. J. Johnson, who occupied and now occupies the same under a right of possession paramount and superior to that of the defendant. The second breach declared on was warranty of title, which was breached in that at the time the deed was made the said defendant did not have title to said property, but, on the contrary, there was a paramount outstanding leasehold interest therein for a number of years in one S. J. Johnson, who holds the said property under the said right or lease, and refuses to permit or allow the plaintiff to enter into possession thereof. The third breach complained is that the defendant warranted that he was seised of the indefeasible title and estate to said land, when in fact the premises aforesaid were not free from incumbrance at the time of making said deed; but, on the contrary, plaintiff avers that at said time one S. J. Johnson had the paramount and lawful right and title to said, premises under and by virtue of a lease executed by the said defendant to the said S. J. Johnson on, fount, the 4th day of January, 1907, for a term oí five years therefrom. It is further alleged that the said Johnson has declined and refused to allow the plaintiff to enter into possession of his said property, or has ousted or evicted the plaintiff from said premises, although the plaintiff had made lawful demand therefor.</p> <p>Pleas 4 and 6 were as follows: (4) “That the defendant was the grantor of the said deed of conveyance mentioned in said complaint, and that while the said deed of conveyance recites a money consideration of $1,500, for which defendant, bargained and sold to the plaintiff a certain tract of land correctly set out in said complaint, yet as a matter of fact said deed of conveyance does not set out in words and figures a true recital of the real consideration flowing from the defendant to the plaintiff, but defendant avers that said real consideration was as follows: That at the time of the execution of said deed of conveyance there was a lease of said tract of land to one S. J. Johnson for a term of five years, one year of which had about expired, of which fact the plaintiff was well informed at the time of the said bargain and sale of the said tract ■of land; that defendant agreed to convey said tract ■of land to the plaintiff for a consideration of $1,200, and transfer the said lease to said tract of land to the plaintiff for an additional consideration of $300, the purchase price of said lease, provided defendant should be allowed to collect and retain the first payment due under said lease or rent contract; and defendant avers that plaintiff accepted such proposition, and that he has transferred and delivered said lease to plaintiff, and that plaintiff has accepted the same; and defendant avers that the said tract of land and the transferring the lease on the said tract of land was the real consideration flowing from the defendant to the plaintiff. Wherefore defendant says he has not breached his warranty in said deed.” (6) “Defendant says plaintiff ought not to recover in said action, because at the time defendant sold and conveyed to plaintiff the premises therein described the plaintiff was fully Informed and well aware of the existence of the jjossession, right, or leasehold interest in said Johnson as alleged in his complaint, and bought said land subject thereto; it being agreed between the plaintiff and defendant as a part of their trade, and as part of the consideration thereof, that said Johnson was to retain possession of the said premises during the remainder of the term of the lease contract with the defendant, and that said Johnson was to convey to the defendant the amount of money due on his first payment under said contract, and was to pay to the plaintiff the amount of money due on his remaining payment under his said contract.”</p> <p>The demurrers to plea 4 were that it presented immaterial issues and illegal issues, in that it undertook to set up an agreement different and variant from that set up in the deed; in that it undertakes to set up an oral agreement between the parties to the contract, or vary the express terms of the deed. The same grounds were assigned to plea 6.</p> <p>—At common law there is no general issue or plea which amounts to a general traverse on the whole declaration for breach of covenant. — 2 Greenl. sec. 233. The court should have sustained the demurrers to pleas 4 and 6. — Steele v. Hinson, 76 Ala. 298; Holt v. Williams, 5 Ala. 521; Holley v. Young, 27 Ala. 207. The consideration of a deed is open to explanation by parol. —Sanders v. Hendricks, 5 Ala. 224; Grawelee v. Lamp-kin, 120 Ala. 221. A deed may not be varied, contradicted or explained by parol. — Rogers v. Peebles, 61 Ala. 82; Thompson v. Glass, 136 Ala. 648; 17 Cyc. 619-20. No parol reservation can be made whether prior to or contemporaneous with the execution of the deed. —Wright v. Graves, 80 Ala. 416; Williams v. Higgins, 69 Ala. 517; Melton v. Watkins, 24 Ala. 433. The covenants were broken when the deeds were delivered. — ■ Copeland v. McAdory, 100 Ala. 557; Anderson v. Knox 20 Ala. 156; Andrews v. McCoy, 8 Ala. 920; Sayre v. Sheffield, 106 Ala. 440; Treadwell v. Tillis, 108 Ala. 262; Adams v. Robertson, 67 Ala. 586. Charge 2 should have been given. — Gunter v. Beard, 93 Ala. 235.</p> <p>Plea 2 was the plea of the general issue under section 5331, Code 1907, and did not have to be sworn to. — Mayor v. White, IS South. 428. The case was fairly submitted to the jury on a single issue determining the rights of the parties, and any erroneous ruling was error without injury.— Bur gin v. Marks, 48 South. 348. It is well settled that under a deed reciting a money consideration or other express considerations, that it is competent to support the conveyance by parol proof of any consideration however much it may differ from the one recited, if it is valuable, without affecting the operation of an instrument or varying or altering the writing. — Hubbard v. Allen, 59 Ala. 297; 11. R. Go. v. Pippin, 86 Ala. 357; Pique, v. Avendale, 71 Ala. 91; Pettus v. Roberts, 6 Ala. 811; Btringfellow v. Ivey, 7 Ala. 209; Mobile Bank v. McDowell, 8 South. 133; Kelly v. Karsner, 2 South. 161; Steed c. Hinson, 76 Ala. 298. It ivas competent to show that the whole matter was understood by the vendor and the vendee and that such understanding was a part of the consideration for the sale of the land and the transfer of the lease. — 6 A. & E. Ency. of Law, 766-773; Lowery v. Downing, 50 N. E, 79; 17 Cyc. 655.</p>

Heard before Hon. John T. Lackland. The Marengo Abstract Company procured garnishment in aid of suit to he served on the sheriff who had in his hands money collected for one Small on an execution on a judgment secured by Small against another. Canterbury & Gilder,, interposed without objection a claim to the money under an assignment of the judgment. There was judgment for the garnishor plaintiff and claimants appeal.

<p> Assumpsit. </p> <p>1. Mortgages; Foreclosure; Complying icith Terms; Necessity.— In foreclosing a chattel mortgage the mortgagee must in taking possession of the chattel and selling them comply with the directions and stipulations contained in the mortgage, or the sale will not pass the title.</p> <p>2. Same; Sufficiency. — Where the evidence tended to show that notice was posted at three specified places ten days or more before the sale, although the witnesses could not fix the date of the posting such evidence was sufficient to authorize a finding by the jury that the notice of sale was given as required by the mortgage, and thus find the sale valid.</p> <p>3. Same; Instructions. — A charge asserting that the evidences must be such that the jury should be reasonably satisfied of some identified and specific localities where foreclosure notices were placed before they could find a valid foreclosure, and if the jury were not reasonably convinced that notices were posted either at one set of localities or else at another set of localities, then there was no valid foreclosure, was erroneous as exacting a too high degree of proof of notice, the mortgage stipulation requiring that ten days notice of the time and place of sale be given by posting in three public places.</p> <p>4. Same; Evidence. — In a mortgage foreclosure sale it is competent to show the amount that the chattels brought at such sale as tending to show a valid foreclosure.</p> <p>5. Sarnie; Disposition of Proceeds. — Where the mortgage provides that the proceeds arising from a sale under foreclosure may be devoted to the payment, first of the expenses of recording the mortgage, advertising, selling and conveying the property, and second, of the amount with interest that may be due on the notes secured by the mortgage, a mortgagee selling may devote the proceeds to the expenses of the foreclosure.</p> <p>6. Appeal and Error; Questions Review able; Instructions. — When reviewing an instruction specifically objected'to, the court on appeal will only consider whether it is sufficient as against the particular objection.</p> <p>7. Charge of Court; Conformity to Evidence. — Instructions are not improper for hypothesizing facts if there was evidence tending to show the facts hypothesized.</p> <p>8. Same. — A charge asserting that defendant had not proven his plea that there was no consideration for the bond sued on was not improper where the evidence showed an abundant consideration.</p> <p>9. Same; Assumption of Fact. — Where, under the evidence in the ease, the validity of the mortgage sale was a question for the jury to determine, instructions assuming the illegality of the sale, are properly refused.</p>

Heard before Hon. A. A. Coleman. Action by tbe A. H. Andrews Company against tbe Stowers Furniture Company for the price of certain chairs. Judgment for defendant, and plaintiff appeals. The first four counts were the common counts.

<p> Assumpsit. </p> <p>1. Account; Complaint; Allegation of Balance Diie. — In an action for balance due on an account, a count is demurrable for failure to allege that the account was due from the defendant, it alleging only that the plaintiff claims of the defendant $200.00, balance due on the account, on to-wit, Aug. 1, 1908.</p> <p>2. Pleading; Variance; Parties.■ — Where the suit is on a joint contract and the eyidence shows that only one defendant is liable, the variance is fatal; judgment cannot be rendered against one of two joint defendants, unless the other is discharged on some personal defense.</p>

Heard before Hon. D. W. Speake. Assumpsit by Sallie Winter as administratrix against Ignatius Poliak. Judgment for plaintiff and defendant appeals. The general issue is an averment that the allegations of the complaint are untrue and puts in issue all the allegations made in the complaint.- — -Sec 5331, Code 1907; L. & N. v. Trammel, 93 Ala. 352; K. C. M. & B. v. Crocker, 95 Ala, 427; Fields v. Brice, 108 Ala. 642; Amer.

Heard before Hon. John H. Disque. Action by Strater Brothers Grain Company against Cassels’ Mills and others. Prom a judgment for plaintiff, defendants appeal. The pleadings are sufficiently set out in the opinion of the court.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Mon. C. W. Ferguson.</p> <p>Action by the Evans Brothers Construction Company against L. B. Lavergne, administrator of the estate of L. N. Archer, deceased, to enforce a mechanics’ and materialman’s lien and for a judgment against the personal representative. Judgment for plaintiff and defendant appeals.</p> <p>The general charge should have been given for the defendant. It was not shown that the administrator was the. owner or proprietor of the building or the lessee of the lot. — Touart v. Y. P. L. Co.j 128 Ala. 61. It is further submitted that there was not sufficient, evidence to sustain the charge of the court. — Merrill v. Smith, 48 South. 495; Gulf City Co. v. L. S N., 121 Ala. 621; Talladega I. Cv. v. Peacock, 67 Ala. 253. The lien was not filed in time, nor is there authority for filing a lien against an administrator. The court erred in striking the plea of insolvency. — Secs. 2794-5, Code 1907; Stern v. Collier, 101. Ala. 424; Cunningham v. Lindsey, 77 Ala. 511; Coffee v. Norwood, 81 Ala. 814. The court- erred in rendering the verdict as there was no evidence to support the judgment rendered. — Goldstein v. Lake, 138 Ala. 573; Copeland v. Kelroe, 57 Ala. 394; Hughes v. Torgerson, 96 Ala. 349; Roman v. Thorn, 83 A!a. 443.</p> <p>The court did not err in sustaining demurrers to the plea, in abatement. — Sec. 4779, Code 1907, nor in sustaining demurrers to the plea of insolvency. — Woodall v. Wright, 142 Ala. 210; Finn v. Barbour, 63 Ala. 533; Reed v. Nash, 23 Ala. 739. There was no error in decreeing a lien. — Section 4756, Code 1907. The lien was admissible in evidence. —Section 4758 and 5367-8, Code 1907.</p>

<p>Appeal from Mobile Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Bill by the Hunter, Benn & Co.’s Company against J. M. Ackley & Co., and cross-bill by Ackley & Co., against the I-Iunter-Benn Company. Decree for complainant, and respondent appeals.</p> <p>The bill was for a discovery and a statement of account and construction of the contract. The cross-bill sought an abatement of the original purchase price to the extent of the purchase price of 380 acres to which the complainants had no title. The pleadings in the case were settled on the former appeal, found in 154 Ala. 416, ■ 45 South. 909. The contract referred to in the opinion is as follows;</p> <p>“By agreement made on February 7, 1902, between Hunter, Benn & Co.’s Company, a corporation, and J. M. Ackley & Co., a partnership, naming the partners, the Hunter-Benn Company, being the owners of the following described' land, situated in Choctaw county, Alabama, towit: [Here follows description of the land by government subdivision] — does hereby sell and convey to J. M. Ackley & Co. all of the pine trees standing upon the said land which are of such size that,when all of them shall have been manufactured into sawn timber, the average of the entire lot shall be not less than 30 cubic feet per stick. It is understood between the parties hereto that it is not practicable to log any lands’ so that the timber manufactured from such logs shall average an exact number of feet per stick, and it is agreed that in this case such reasonable variations from a 30-foot average as may result from this cause shall not be deemed a violation of this contract or entitle either party to claim anthing from the other on account of such variation.</p> <p>“(2) Ackley & Co. agree to pay for said stumpagc upon said lands the sum of $9 per acre, such payments to come out of the proceeds of the timber cut from said lands, and to be made immediately after the sale of each raft or lot of said timber, and in all respects as hereinbefore shown. It is supposed that the said lands upon the average will cut about nine of said timber logs per acre, and until such time as one or the other of the parties hereto shall request a change in that respect under the provisions thereof there shall be paid to the said Hunter, Benn & Co.’s Company the sum of $1 out of the proceeds of each stick of said payment. Should either of the said parties at said time request that the amount of said payments be. changed, and the parties hereto cannot agree thereon, then ail of said lands shall be estimated by some disinterested and competent timber estimator, to be chosen in the manner hereinafter shown, and such estimate shall be binding upon both parties hereto. Should the said estimate show that the said lands will cut more than nine sticks of 30-foot average timber per acre, then the payment to be made from the proceeds of each stick as sold shall be decreased proportionately. Should the said estimate show that the said lands will not cut as many as nine sticks of such timber per acre, the payments per stick shall be increased proportionately. The said estimator shall be some competent and disinterested person agreed upon by both parties hereto, and, in the event they cannot agree, then they shall each select one person, and the two thus- selected shall choose a third, and the three so chosen shall name some competent and disinterested estimator, who shall make the estimate hereinabove provided for. There are 4,386.64 acres of said land, which, at $9 per acre, amount to $39,479.76, and when that amount shall have been paid to said Hunter, Benn & Co.’s Company by said J. M. Ackley & Co., the stumpage for all timber thereby sold shall be deemed to be fully paid for, and all further payment on that account shall cease. Any balance of said sum of $39,479.76 which may remain unpaid on the 1st day of April, 1903, shall become due and payable at once.</p> <p>“(3) In consideration of it so selling said stumpage, the said Hunter, Benn & C'o.’s Company is hereby given the option for 60 days from this date of making a contract with the said J. M. Ackley & Co., by the terms of which the said J. M. Ackley & Co. shall bind themselves to sell to the said Hunter, Benn & Co.’s Company, and the said Hunter, Benn & Co.’s Company shall bind itself to buy from the said J. M. Ackley & Co., all of the sawn timber classing B and better which may be manufactured from the logs cut from lands under this contract prior to April 1, 1903, at the market price of such timber at Mobile, Ala., at the time said option is exercised, hut not exceeding 14% cents per cubic foot on a basis of 30 cubic feet average. The said contract shall also embrace any hewn timber that may he cut from said land, and the price thereof is to be 15 cents per cubic foot upon the basis of 100 cubic feet average and B1 good. It shall further provide that payment for all said timber should be in cash on delivery of specifications, and that the said timber shall be inspected at seller’s expense by W. J. Thornton, of Mobile, Ala., whose inspection shall be final. Should the said Hunter-Benn Company, elect to exercise this option before the expiration of 60 days from this date, and the parties hereto cannot agree as to what is the then price of timber in Mobile [Here follows the agreement for selection of arbitrators to determine].</p> <p>(4) Is the retention of the statutory lien for stump-age upon each lot or raft of timber manufactured from the logs cut from said land.</p> <p>°(5) Constitutes the agreement as to the amount to be cut and the time and the conditions under which it shall revert.</p> <p>(6) Has reference to the extension of the contract in the event Hunter, Benn & Co. should take the option to make the contract referred to in paragraph 3.</p> <p>(7) Has reference to certain disputed title to the land and agreement in reference thereto.</p> <p>(8) Warranty by Hunter, Benn & Co. as to the ownership of the land.</p> <p>“(9) In the event of a purchase by Hunter, Benn & Co.’s Company of any of the timber manufactured from the logs cut from said lands, it is agreed that the timber be so purchased at the mill of C. L. Sowell & Co., at Magazine, Ala., or some equally good mill in the vicinity of Mobile, Ala., and that it shall be delivered to the said Hunter, Benn & Co. in C'hickasabogue, in Mobile county, Alabama, in all respects as deliveries are now made by the said J. M. Ackley & Co. to W. H. Greenwood & Co. under the contract now existing between them. The Greenwood agreement was between Greenwood & Co. and Ackly & Co., by which Greenwood & Company took from Ackley & Co. their entire cut of logs brought down from their timbered lands and camp now established and in operation in Choctaw county, Alabama, to class B and better, not less than one-third A. and to average not less than 30 cubic feet per stick, price to be 14% cents per cubic foot on the basis of 40 cubic feet average for class B and better, delivery to be made at buyer’s boom as fast as water will permit and timber is gotten, and to be completed before the 1st day of September, 1900, timber to be inspected and measured on all four sides by buyer’s inspector, and classified according to the classificaion of timbers, etc., now current at the port of Mobile, seller paying the usual inspection fees; payment, cash in exchange for specification. It is further understood that seller shall not deliver or sell any timber to other parties until this contract is completed [with the noted exception]. It is also agreed that the lumber cut from these logs in the manufacture of timber is to be included in this contract, particulars as follows: [Here follow certain lumber measurements and prices.] It is further agreed that all lumber and deals shall be delivered alongside of vessel at seller’s expense; also that each and every raft is taken on its own average, and there shall not be two averages worked on any one raft, and that no raft shall contain less than 300 pieces, said average, if any, to be made up at their mill boom. Should sellers wish it, buyers are to advance 80 per cent, on the prime and heart face cut when it is properly manufactured and cut.”</p> <p>The Chancellor erred in ignoring and disregarding objections presented to certain portions of certain depositions which were made at length and duly noted. — Seals v. Robinson, 75 Ala. 3G9; Babcock v. Garter, 117 Ala. 581. Under the facts in this case the entire 5th paragraph of appellant’s answer to the original bill must be accorded due consideration as evidence in the case. — Wilson v. Calvert, 8 Ala. 757; Bradford v. Bush, 10 Ala. 389; Ward v. Winston, 20 Ala. 168. As to the construction of the contract counsel cite the following authorities. — Williams v. (Mover, 66 Ala. 189; E. L. Co. v. Elder Bros., 115 Ala. 148; Mason v. Ala. I. Co., 73 Ala. 74; B. E. L. & P. Go. . Montgomery, 114 Ala. 442; Crass v. Scruggs, 115 Ala. 268; Comer v. Bankhead, 70 Ala. 141; Bolman v. Lobman, 79 Ala. 67; Thornton v. Sheffield, 84 Ala. 112. Sufficient authority for serving notice of rescission was shown. — Kansas City v. Cullman, 68 Pac. 1102; 14 A. & E. Ency. of Law, 1002. Failure to pay the two installments, in this instance the two rafts of timber, constituted a breach of the contract so as to authorize the rescission. — Hieronymous v. Bienville Water Sup., 131 Ala. 454; Worthington v. Q-win, 119 Ala. 53; 9 Cyc. 649; 1 Atl. 323; 26 Atl. 504; 30 Pa. St. 116; 31 N. É. 249; 24 A. & E. Ency. of Law, 1104; 51 Atl. 208. The rescission of the contract was completed on Dec. 22, and the tender of Dec. 23, was without efficacy or effect, especially when considered in connection with the letter accompanying it. The original contract is essentially an executed conveyance of realty.— Roscou: v. Bay City L. Co., 139 Ala. 571. There was no condition npon the grant and conditions or limitations upon such grants are not raised readily by inference. — Zimmerman Mfg. Co. v. Baffin, 149 Ala. 388.</p> <p>One party cannot violate the contract himself and then seek a rescission on the ground that the other party had followed his example. — 24 A. & E. Ency. of Law, 647; Chitty on Contr. 633. By accepting delivery of other rafts which had been made up on like order appellees had not varied their contract in withholding delivery. — Dare & C'o. v. Mobile C. é B. M. Co., in MS. The defendants conld not rescind the entire contract on account of the failure of complainant to accept and pay for one delivery. — Sims v. Ala. B. Co., 132 Ala. 313; Worthington v. Qioin, 119 Ala. 53. The contract could not he rescinded without putting the party in default upon notice and give him a reasonable opportunity after notice to perform. — Elliott v. Howison, 146 Ala. 568. A rescission must be distinct and unequivocal, absolute refusal to perform, and must be treated and acted upon by the party to whom the promise is made. — Dingley v. Oler, 117 U. S. 503; Benj. on Sales, sec. 744 and 784; Smoots’ Case, 15 Wall. 47; 9 Cyc. 637; 97 N. Y. Supp. 103; 50 N. W. 837; 4 Atl. 91. Insisting upon counter claim does not amount to a refusal to perform. — Benj. on Sales, 784; Cochran v. Prosser, 22 W. K. 222. Stevens was without authority to serve notice and no ratification by his principles would be binding upon them without evidence showing that it had been made upon full and fair knowledge of the facts. — Wheeler v. McGuire, 86 Ala. 298; 1 A. & E. Ency. of Law, 1189. Communications upon which depended the question as to whether or not the agent had authority upon the principle can never be privileged.— 10 Ency. of Evid. 244-5-6 and 237; Meachum on Agencies, sec. 282; Home Ins. Co. v. Ecller, 71 Ala. 517. In order to rescind one part of the contract, the whole must be rescinded. The appellants could not rescind the part of the contract beneficial to the appellees and retain that part beneficial to themselves. — Jones v. Anderson, 82 Ala. 302; Young v. Amts, 86 Ala. 116; Henderson v. Boyett, 126 Ala. 173; Sample v. (Payer, 126 Ala. 172.</p>

Heard before Hon. W. W. Wi-iiteside. Bill by the Southern Mineral Land Company against Annie E. Vandegrift and others, to quiet title to certain lands. Decree for complainant and respondents appeal. In statutory bills to quiet title the court acts only upon peaceable, actual. possession or constructive possession by virtue of legal title. — Fowler v. Ala. I. & F. Go., 45 South. 635; Meritt v. Ala. Pyrites Go., 145 Ala. 252.

<p> Bill to Enforce Resulting or Constructive Trust in Capital Stock. </p> <p>1. Corporations; Organisation; Failure to Issue Stock. — Where a corporation is validly organized in every other way, the organization is not defeated by a failure to issue certificates of stock, or to note the respective shares on the books of the corporation.</p> <p>2. Same; Interest of Stockholders; Right to Enforce. — The stockholders of an existing corporation cannot enforce individual benefits that may or will accrue to them in virtue of their interest in the corporation, as primarily the corporation itself must assert and vindicate its own rights, although they may implead for the corporation when it is threatened.</p> <p>3. Same; Shareholders; Interest in Property. — Shareholders in an existing corporation are not tenants in common of the corporate property.</p> <p>4. Same; Individual Interests of Stockholders; Dissolution of Corporation. — Where a corporation organized for the purpose of selling real estate sells all its property to an investment company who assumes all the debts of the corporation as part consideration for the sale, and does not thereafter engage in the business for which the purchased corporation was incorporated, or earn or declare any dividends, such facts are not sufficient to show that such corporation was dissolved so as to authorize a stockholder to sue to enforce individual benefits that would accrue to him by virtue of his interest in the corporation.</p>

<p>Appeal from Montgomery Chancery Court.</p> <p>Heard before Hon. L. H. Gardner.</p> <p>Bill by .Lehman-Durr Company against George A. Folmar and others to set aside a fraudulent conveyance and cross bill in the nature of set-off. See also 154 Ala, 480, 45 South. 289. From a. decree for respondents complainants appeal.</p> <p>There is no question about the rig'ht of appeal in a decree of this character.— 18 Ene. P. & P. 896; Bridgeport I. Co. v. Bridgeport L. Go., 104 Ala. 281; Thornton v. R. R. C'o., 94 Ala. 354; R. R. Co. v. Sibert, 97 Ala. 393; Malone’s Case, 84 Ala. 489; Walker’s Case, 70 Ala. 571; Jones v. Wilson, 54 Ala. 50. Folmar was not entitled to rents or profits.— White v. St. Guirons, Minor 331; Avent v. Reid, 2 Port. 480; Cummings v. McGehee, 9 Port. 349; 18 Encq. P. & P. 884; 65 Ark. 553; 3 N. Y. 327. This proceeding is not the only one by which property can be restored.— Burdine v. Roper, 7 Ala. 466; Duprey a. R.ohuck, 7 Ala. 484; Stewart v. Conner, 9 Ala. 803; Williams v. Simmons, 22 Ala. 426. If liable at all, appellant should have been allowed credit for the expenses resonably incurred in looking after the property. Interest as a general rule is not recoverable for deprivation of use' of property. — Ghulte v. L. & N., 108 S. W. 941; Rag-land u. Wood, 71 Ala. 145; Gresham v. Ware, 79 Ala. 192; 27 Cyc. 1845.</p> <p>There is no final decree in the cause and the appeal should be dismissed. The proceeding of restitution is strictly a matter within the original lis pendens: it is an imperative right.- — Ex parle Walter Bros., 89 Ala. 237; Marks a. Coxales, 61 Ala. 299. The court properly allowed interest and refused to allow commissions for looking after the property. — Adams v. Sayre, 76 Ala.; Marks v. Cowles, supra.</p>

<p> Bill to Enjoin Issuance of Bonds. </p> <p>Counties; Bonds; Refunding. — Under section 157, Code 1907, counties have an additional means of discharging their bonded indebtedness without impairing the rights of bondholders, and therefore. bonds issued under the authority of Acts 1888-9, p. 577, may, after twenty years, be retired by the county commissioners by the issuance of bonds in their stead, after having been so directed by an election held in said county.</p>

Heard before Hon. W. H. Simpson. Bill by Mrs. W. E. Smith against the town of New Decatur to enjoin saicl town from changing the grade' of a street and paving same, and for damages resulting therefrom. Decree for respondent and complainant appeals. General benefits resulting from improvements must be excluded. — City of Omaha v. Schaller, 42 N. W. 721; Widman I. Go. v. St. Joseph, 90 S. TV. 763; Bir. etc. Go. v. Oden, 146 Ala. 495.

Heard before Hon. A. H. Benners. Bill by Fred J. Bender against Geo. W. Barton, Jr., for specific performance. Judgment for defendant, and plaintiff appeals. The bill alleges a sale by Geo. W. Barton, Jr., to Fred J. Bender, of a certain tract of land for a-certain consideration, expressed in the option, the payment by Bender of $100 on the same, and the refusal by Barton to accept the other cash payments and notes, and to execute the deed. The defense set up was that Geo.

Heard before Hon. C. W. Ferguson. Bill by William M. Little against Hugh M. Hartón, to which Hartón filed an answer. Hartón was after-wards adjudged insane and Charles B. Powell was appointed guardian and guardian ad litem, and filed a cross bill, seeking affirmative relief. There was a decree dismissing the original bill at the instance of the ■complainant, after the interposition of the cross bill, •carrying the cross bill out with it.

<p> Bill for Specific Performance. </p> <p>1. Religious Society; Right to Sold Property. — An unincorporated religious society cannot acquire or hold title to property.</p> <p>2. Same; Equitable Jurisdiction. — Independently of the English statute of charitable uses, and of any prerogative power of the eonrt, equity jurisdiction over voluntary religious - associations and their property is maintained on the grounds of the trust nature of the property the charitable uses for which it is designed, and the inadequacy of legal remedy; hence, equity has power to compel the performance of an agreement to convey land made to the trustees of the society before it was incorporated, upon the application of the incorporated religious society.</p> <p>S. Same; Property; Effect of Incorporation. — An organization under the statute by a majority of the members of an unincorporated religious society into a corporated religious society, operates of itself as a transfer of the rights and interests of the individual members. to the corporation thus created.</p> <p>4. Same; Incorporation; Agreements to Convey; Rights of Minority. — Where a voluntary religious society of the Baptist faith with power to rule itself in accordance with the laws of the church divides upon questions not of religious doctrine or denominational practice, and the majority thereof organized as a corporation and maintained the same doctrine as the church had before the schism, the minority cannot defeat the rights of the corporation to have an agreement performed by a conveyance to the corporation, the agreement being to convey land to the church and made to the trustees of the church, before incorporation.</p> <p>5. Same; Membership; Judicial Control. — Courts are without power to revise ordinary acts of church discipline, or to pass on controverted rights of membership, but such matters are given consideration when they form the basis on which civil rights or the rights of property depend.</p> <p>6. Charities; Conveyance to Religious Society. — In strictness an agreement to convey property to the trustees of an unincorporated religious society does not create a charitable use.</p>

Heard before Hon. W. W. Whiteside. Bill by Annie Gordon Sanders against C. W. Sanders, and others, for the custody of a child. Decree for complainant and respondent appeals. Counsel discuss the evidence and insist that the court erred in the decree rendered. No brief reached the Reporter.

Arread from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Bill by Randolph Richard and another to quiet title against- Steiner Bros. Judgment for defendant, and complainants appeal. The facts seem to he that in 1891 B. & S. Steiner, a firm, recovered judgment against the Birmingham Ensley Land. & Iprovement- Company in the sum of $1,822, and had execution issued thereon, which was returned in April of the same year nulla bona.

Heard before Hon. Thomas H. Smith. Bill by William T. Holt against Rosa A. Johnson and others, and William A. Holt and others against Elizabeth McEvoy and others, to establish a resulting-trust in land. There were decrees for the respondents in both cases, and complainants appeal. The doctrine ■conceded to cover the purpose of this bill is stated in Preston v. McMillan, 58 Ala. 87.

Heard before Hon. A. H. Benners. Bill by J. B. Simpson against the city of Ensley and others, to enjoin the municipal officers from turning over the books, papers, etc., of the municipality to the city of greater Birmingham, and to declare the acts consolidating the two cities, void. From a decree for complainants respondents appeal.

Heard before Hon. W. H. Simpson. Bill by city of Huntsville against Madison county, to declare and enforce a lien against the ■ county courthouse and property situated within the city for a special assessment levy against it for paving and street curbing, etc. From an order sustaining demurrer to the bill for want of equity, complainant appeals.

Heard before Hon. A. H. Benners. Bill by S. N. Morris and others against Huida Thacker and others, to restrain the respondents and their attorneys of record from proceeding with an ejectment suit, and to correct the description of the deed, and declare the complainants the legal and equitable owners of the land. Decree for complainants, and respondents appeal.

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. William Jackson.</p> <p>Bill by Ruby E. Tillman and others against Lucy E. Kifer, and others to enforce a trust in land. Decree for respondents and complainants appeal.</p> <p>This trust does not fall within the statute of frauds. A trust arises when property has been conveyed to one person and accepted by him for the benefit of another. — McCarty v. McCarty, 74 Ala, 552; Krassioell v. Jones, 68 Ala. 420. The relations between the parties bring this case within the influence of Kyle v. Perdue, 95 Ala. 576; Noble v. ■Moses, 81 Ala. 530. Mrs. Kifer could not claim any of the benefits of the fraudulent transaction. — Henderson v. Sega/rs, 28 Ala, 532. The statute of limitation has no application.— McCarty v. McCarty, supra; Hasty, et al. v. Aiken, 67 Ala. 313; Holt v. Wilson, 75 Ala. 58; Whetstone v. Whetstone, 75 Ala. 495.</p> <p>The bill seeks to enforce a‘ parol trust to land, which cannot be done. — Section 3412, Code 1907; Oden v. Lockwood, 136 Ala. 514; Moore v. Campbell, 102 Ala. 453; Brock v. Brock, 8 South.- 11; Patton v. Beecher, 62 Ala. 579. No conveyance or trust designed to defraud creditors will be enforced. — Authorities supra, When the trust relationship is repudiated or time and long acquiescence have obscured the nature of the trust, a court of equity will not interfere. — Nettles v. Nettles, 67 Ala. 599; Bracken v. Newman, 26 South. 3.</p>

Heard before Hon. W. H. Simpson. Bill by E. H. Caldwell against S1. A. Caldwell to enjoin the execution of a power of sale contained in a mortgage until an unliquidated demand due from respondent to complainant could be ascertained and set off. Judgment for respondent and complainant appeals. Counsel discuss assignments of error and insist that appellant has offered to do the right thing, and that appellee should be willing to do likewise.

Heard before Hon. W. H. Simpson. Bill by B. B. White, administrator, against W. R. Francis, and others, to redeem from execution sale. Decree for complainant and respondents appeal.

Heard before Hou. D;. W. Speake. Action by Tom Winn against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. O. Lane. Action by Steve Elliott against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. A. O. Lane. Action by William T. Slieeban against the Woodward Iron Company. Prom a judgment for plaintiff, defendant appeals.

Heard before Hon. Thomas L. Sowell. Action by S. A. Smith against the Sloss-Sheffield Steel & Iron Company for personal injuries sustained by an employe. Judgment for plaintiff and defendant appeals. The court should have sustained the demurrer to the first count of the complaint, since the cause alleged constituted no part of the ways, works, machinery, etc. — Bir. F. Go. v. Gross, 97 Ala. 220; Southern By.

Heard before Hon. John Pelham. Action by Sara A. Adams against the Southern Railway Company. Prom a judgment for defendant, plaintiff appeals.

Heard before Hon. Charles W. Ferguson. Action by J. M. Thompson against the Alabama Steel & Wire Company. From a judgment for plaintiff, defendant appeals. The pleadings and evidence are sufficiently stated in the opinion.

Heard before Hon. A. O. Lane. Action by W. O. Davis, against Garselli Chemical1 Company for personal injuries. Judgment for plaintiff, and defendant appeals.

Heard before Hon. O. C. Nesmith. Action by Mary Tobler as administratrix against the Pioneer Mining & Manufacturing. Company, for damages for. the death of her intestate, an employe of the defendant. Judgment for defendant on a directed verdict, and plantiff appeals. Statement of facts by the court.

Heard before Hon. Thomas W. Coleman, Jr. Action by George Pace against tbe Louisville & Nashville Railroad Company for personal injuries while an employe. Judgment for defendant and plaintiff appeals. Tbe court erred in overruling demurrer to pleas 2, 3, and 4. — Osborn v. Ala. 8. & W. Co., 135 Ala. 571, and authorities there cited; T. O. I. & R. R. Go. v. Burgess, 47 South. 1029; 'Woo(heard I. Go. v. Gurl, 44 South. 969.

Glair Circuit Court. Heard before Hon. John W. Inzer. Action by Lula Johnson as administratrix against the Alabama Fuel & Iron Company for damages for injury to an employe. From a judgment for defendant the plaintiff appeals. Both the 1st and 2nd counts were good as against the demurrers' assigned. — Richards v. Burgess, 49 South. 294; City Del. Go. v. Henry, 139 Ala. 167; Lmnpldn v. L. & N., 106 Ala. 287; 26 Cyc. 1518.

Heard before Hon. A. A. Coleman. Action by Joe Walton against tbe Tennessee Coal, Iron & Railroad Company. Judgment for defendant, and plaintiff appeals. Tbe complaint contains five counts, under subdivisions 1 and 2 of tbe employer’s liability act (Code 1907, § 3910).

Heard before Hon. William Jackson. Action by Elizabeth V. Drake as administratrix against the Southern Bilway Company for damages for the death of her intestate while trespassing upon the railroad track. Judgment for plaintiff and the defendant appeals.

Heard before Hon. A. H. Alston. Action by Jesse C. Counts against the Northern Alabama Railway Company for injuries inflicted on the plaintiff near a public crossing with the tracks in Russellville, by a projection from one of the cars of the train operated by the defendant company. Judgment for plaintiff and defendant appeals. Counsel discuss the action of the court on motions relative to quashing the process had at a former term, and cite McGall v. By. Go., 89 Ala. 379.

Heard before Hon. A. A. Coleman. Action by E. F. Stollenwerck, as administrator de bonis non of tbe estate of Charles M. Bryan, deceased, against the Southern Railway Company. Judgment for plaintiff, and defendant appeals.

Clair Circuit Court. Heard before Hon. A. H. Alston. Action by S. J. Tucker as administrator against the Atlanta & Birmingham Air Line Railway. Company, :for damages for the death of his intestate at a crossing. From a, judgment directed for the defendant, plaintiff appeals. As to the effect of' a demurrer to the evidence see Burtis v-. Daughclrill,. 71 Ala. 590; Gluck v. Cox, 90 Ala. 331; Gentray By. v. Boquemore, 96 Ala. 237.

Heard before Hon. H. A. Sharpe. Action by Ben Jaffe against the Birmingham Railway, Light & Power Company for injuries received by plaintiff while crossing defendant’s track. Judgment for defendant, and plaintiff appeals. The complaint contains a good many counts, some in simple negligence, and some for wanton, willful, or intentional injury. These counts may be found, or at least some of them, set out in former report of this case in 154 Ala. 548, 45 South. 469.

<p> Crossing Accident. </p> <p>1. Death; Action; Oontrihutory Negligence of Deceased. — In an action brought for the death of deceased under section 2486, Code 1907, contributory negligence which would have barred a recovery by the deceased for damages for the injury, if he had lived, will defeat an action for his death by his personal representative.</p> <p>2. Same; Presumptions. — No presumption for or against a personal representative in an action by him for the death of his* intestate by wrongful act is raised because of the fact that his decedent cannot testify as to how the injury happened.</p> <p>3. Railroads; Grossing Accident; Rate of Speed. — 'The running of a train over a street crossing at a traveled street at the rate of thirty miles per hour, and in excess of the speed limit fixed by the ordinance of the town is simple negligence.-</p> <p>4. Same; Duty to Trespasser. — With the exception of public .crossings and a few other places mentioned in the statute a railroad’s right of way is its exclusive property, and it owes no duty to those trespassing there on except not to wantonly or willfully injure them.</p> <p>5. Same; Duty at Grossings. — The rights of a railroad company and the public to use a street are mutual, but the railroad has the right of way at crossings by reason of the nature of the vehicles operated thereon, and must use reasonable care to avoid the injury in view of all the circumstances; it is only to a limited and reasonable extent that each may rely upon the exercise of due care by the other to avoid injury.</p> <p>6. Same; Contributory Negligence; Stop, Loolc and Listen. — It is the duty of pedestrians at a public street crossing with a railroad to inform themselves of the proximity of the train by stopping, looking and listening before attempting to cross, unless excused therefrom by the facts of the particular case.</p> <p>7. Same; Effect of Statute. — The imposition of certain duties upon railroad companies at public crossings, imposed by statute or ordinance, does not exempt them from all other duties which are necessary to be exercised to avoid injury at such crossing.</p> <p>8. Same; Violation of Statute. — Where a railroad company violates the duties imposed upon it by statute or ordinance at public crossings they become liable at least for simple negligence.</p> <p>9. Same; Negligence; Liability. — The provisions of section 5476, Code 1907, do not render railroad companies liable for injury at crossings irrespective of negligence contributing thereto of the person injured.</p> <p>10. Same. — The mere injury of person or property at a public crossing does not of itself render the railroad company liable since the doctrine of res ipsa loquitur does not apply.</p> <p>11. Same; Violation of Statutory Duty; ’Wanton Negligence.— While the failure of a railroad company to comply with the duties imposed upon it by statute at public crossings is usually simple negligence, yet, the failure to comply with such duty may be so gross, reckless and wanton as to amount to wanton or willful injury.</p> <p>12. Same. — Though the injured party was negligent and the railroad employes were not negligent after discovering his danger, yet a railroad company is liable for injuries at a crossing if the train was run at a high rate of speed without signals over an unguarded public crossing in a populous city district, or at a place where the public usually crossed the track in large numbers, if these facts were known to the employes; their conduct under such circumstances amounting to reckless indifference.</p> <p>13. Seme; Jury Question. — Where the railroad track curved from the signal post about a quarter of a mile from the crossing to within a point within 150 and 300 feet from the crossing and was straight from there to the crossing, and the train was running from twenty-five to thirty miles an hour with headlights burning, and the signal blown at the signal post, but it was not shown with certainty whether the bell or whistle signals were given or brakes applied and the speed slackened between the signal post and within twenty or thirty feet from the crossing, but at that point the steam was shut off, brakes applied and the danger signal given, though the train was not stopped until it had passed the place of the injury several hundred feet, and intestate was seen standing by the side of the track just as the danger signals were given, and there was a building on either side of the track at the crossing and at the time of the accident there was much travel over the street, and the street had been much used by the public and the engineer in charge of the engine had been on that run for sometime, and the accident happened about 8 p. m., it was a question for the jury as to whether or not the employes of the defendant were guilty of wanton negligence in running over the intestate; and as to whether defendant’s wanton negligence was the proximate cause of the injury to plaintiff’s intestate was also a question for the jury.</p> <p>14. Same; Evidence. — Where the action was for the death of plaintiff’s intestate caused by being struck by a train of defendant at a public crossing, it is competent to show the extent and frequency of travel at crossing at the time of the injury.</p> <p>15. Same. — Where the action was for the death of plaintiff’s intestate. and it was not shown that intestate was so deceived, it was not competent to show whether one standing where intestate was when injured could distinguish defendant's tracks from those of another company paralleling them, or whether the lights seemed to make one track look like the other.'</p> <p>16. Negligence; Proximate Cause. — In order to be actionable, a de- . fendant’s negligence must have proximately contribtued to the injury in that it would not have 'happened except for such negligence.</p> <p>17. Witnesses; Examination; Leading Question. — It is within the discretion of the trial court to permit or not, leading questions to be asked, and not revisable unless abused.</p> <p>(Dowdell, C. J., and Simpson, J., dissenting.)</p>

<p>Appear from Bessemer City Court.</p> <p>Heard before Hon. William Jackson.</p> <p>Action by Elma Carlisle as administratrix, etc., against the Alabama Great Southern Railroad Company for the death of her intestate. Judgment for defendant, and plaintiff appeals.</p> <p>The case made by the pleadings and evidence is sufficiently stated in the opinion of the court. The evidence to which objection was sustained, which is referred to in. the opinion, is as follows: Plaintiff asks its witness George Going if there was an arc light between Alabama avenue and Arlington avenue; also its witness Lipscomb whether or not Lowe had been running an engine on that road for three years through Bessemer; also of witness Wood, “What distance could an engine, with 23 cars well equipped with air emergency brakes, be stopped, running at not exceeding eight miles per hour, and not less than six, being operated over this track, going north and upgrade?” also, to the same witness, “An engine with 20 cars behind it, going south over this track as mentioned, between Nineteenth and Fourteenth streets, with all modern appliances, and in good order, with an air emergency brake throughout the train, running at not over eight miles per hour, and not less than six miles per hour, could be stopped in what distance, with such- train and appliances?” also to the witness Van Hearn, “If the train he had testified to as being on the Nineteenth street crossing, was an Alabama Great Southern train?”</p> <p>The plaintiff was entitled to judgment by default for failure of plaintiff to answer interrogatories. — Sections 4052 and 4055, Code 1907. The court erred in overruling demurrer to plea 2. — G. of Ga. By. Go. v. Hyatt, The court erred in overruling demurrer to pleas 3, 4 and 5. — Johnson v. Bir. B. L. & P. Go., 149 Ala. 533. Under the provisions of section 5476, the facts in this case were certainly sufficient to raise the presumption or the inference that the trainmen saw the deceased sometime before striking him. — Bush’s Case, 122 Ala. 487; Southern By. v. Shelton, 136 Ala. 214; Southern By. Go. v. Smith, 50 South. 390. It follows that under these authorities the court erred in giving the affirmative charge for the defendant. — Blanton’s Case, 84 Ala. 154; Bir. Min. v. Harris, 98 Ala. 332; Shanks’ Case, 139 Ala. 490.</p> <p>The answers to the interrogatories are n ot set -out in the record and the court cannot pass on the same. — A. G. S. v. Bailey, 112 Ala. 167; Wiggins v. Withering ton, 96 Ala. 535. Plaintiff was not entitled as a matter of right to judgment.— M. & G. v. Martin, 30 South. 827; City of Bessemer v. Southern, 157 Ala. 428. If the defendant was entitled to the affirmative charge any error that might have intervened in passing upon special pleas was without injury where the general issue was pleaded. — Mizell v. Southern By. Go., 132 Ala. 504; Wynn v. McOraney, 46 South. 854. The court did not err in reference to the evidence. — A. G. S. v. Clark, 39 South. 816; Harris ». Basclen, 50 South. 321; Horton v. L. & N., 49 South. 423; Chandler v. Higgins, 47 South. 284. The court has the right to refuse to permit a witness to be recalled for further cross examination. — Tarín v. The State, 140 Ala. 122. As to all the counts except the first, there was a variance which entitled defendant to affirmative charge as to them. — A. G. S. v. McWhorter, 47 South. 84; H. A. & B. v. Maddocc, 100 Ala. 618; M. & H. v. Culver, 75 Ala. 587. The counts show that plaintiff’s intestate was a trespasser on the track.- — Ensley Ry. Co. v. CheuMing, 93 Ala. 24; G. & A. R. R. Co. v. Julian, 133 Ala. 371; H. A. & B. v. Robbins, 124 Ala. 113. It therefore follows that unless there was wanton or intentional wrong or negligence after the discovery of peril, there can be no recovery. — Glass v. M. & C. and authorities supra, 94 Ala. 581. Where there is no duty violated there is no actionable negligence, and hence, counts 4 and 6 state no cause of action. — Southern Ry. Co. v. Drake, in MS; Southern Ry. Co. v. Smith, 50 South. 390. Knowledge of peril is requisite to subsequent negligence. — Anniston E. & G. Co. v. Rosen, 48 South. 798; Johnson v. Bir. R. L. & P. Co., 43 South. 33. The evidence does not make out a case of subsequent negligence or wanton injury. — Johnson v. B. R. L. & P. Co., supra, and authorities cited; Southern Ry. v. Gullatt, 150 Ala. 318; L. & N. v. Mitchell, 134 Ala. 261; Nash v. Southern Ry., 136 Ala. 177; Mizell v. Southern Ry., supra.</p>

<p> Grossing Accident. </p> <p>1. Appeal and Error; Revieio; Record. — In reviewing rulings on demurrer the bill of exceptions cannot be looked to, and the record proper alone will determine it.</p> <p>2. RaiVroads; Injury at Grossing; Evidence. — Where the complaint for injuries received at a public crossing alleged that plaintiff’s injuries were the proximate result of the negligence of the defendant through its servants and employes in charge of said engine and car, and that such employes or servants recklessly, wantonly or intentionally ran one of defendant’s cars against plaintiff, evidence that it was the negligence of a flagman of the defendant at the crossing was admissible. So also was the city ordinance providing for the keeping of a watchman at the crossing admissible as tending to show that plaintiff had a right to look to him to warn of the danger, thus tending to disprove contributory negligence.</p> <p>3. Trial; Reception of Evidence; Limiting Application. — Where evidence is admissible for certain purposes only, it is the duty of the objecting party to request that it be limited to that purpose, and the court will not be put in error for admitting it if it is admissible for any purpose.</p> <p>4 Negligence; Contributory Negligence. — While a child may be guilty of negligence which will bar recovery to the same extent as an adult if it proximately contributes to the injury, yet a child of tender years has capacity to exercise only such care as belongs to childhood, and one too young to exercise care cannot be guilty of contributory negligence.</p> <p>5. Same; Presumption. — It is usually a conclusive presumption that a child under seven years cannot be charged with contributory negligence; and those over seven and under fourteen, are presumed prima facie to be incapable thereof, but those over the age of fourteen are presumed to be capable, and the burden is on the infant after that age to show want of capacity or understanding.</p> <p>6. Same; Jury Question. — Unless so young and immature as to require the courts to judiically know that the child could not contribute to its own injury or be responsible for its acts, or unless the child w7as so old and mature that the court must know that it is responsible, although an infant, the question as to whether the child’s capacity is such that it may be charged with contributory negligence is one fact for the jury.</p> <p>7. Same; Presumption; Instruction. — Where the action was for injury to a girl eleven years old, a charge as to the degree of proof necessary to rebut the presumption of plaintiff’s immunity from negligence on account of her age, which requires that the jury be satisfied instead of reasonably satisfied, requires a too high degree of proof.</p> <p>8. Infant; Disabilities; Ability. — The law presumes that an infant fourteen years old has sufficient discretion to select its own guardian, contract a lawful marriage, and to be capable of malice.</p>

<p> Damages for Injury From Teaon Left Unattended on a, Street. </p> <p>1. Municipal Corporations; Violation of Ordinance; Leaving Team Unattended. — Where the 'driver of a laundry wagon left his team standing at the curb, and went into the second story of a building forty to fifty yards away, and thirty feet from the sidewalk to deliver some articles from the laundry, the team was left standing without any person in charge within the meaning of an ordinance punishing such neglect, and the leaving was not within an exception that the vehicle was being loaded and unloaded, where the exception was not to be extended so as to include more than such temporary abandonment of the reins as is reasonably incident to loading and unloading by the driver.</p> <p>2. Same; Jury Question. — Where there was some evidence that the driver took some precaution in the way of securing the horses before he went into the house, the question of negligence in leaving the team unattended in the street was one for the jury.</p> <p>3. Proximate Cause; Jury Question. — Under the evidence in this ■case, it was a question for the jury to determine whether or not the leaving of the team unattended in the street was the proximate ■cause of the injury.</p> <p>4. Evidence; Judicial Knowledge; Municipal Ordinance. — While a citizen within a municipality must take notice of its ordinances which have the force of laws within the municipality, the courts of this state do not take judicial notice of municipal ordinances, and where an ordinance was offered in evidence a court cannot assume to know the date on which it .ecame effective as law where not shown. ' / .</p> <p>5. Appeal and Error; Bill of Exceptions; Statement as to Evidence; Oonehisiveness. — Where the hill • of exceptions states that it contains all of the evidence, this court cannot deal with it on a contrary hypothesis.</p>

<p>Appear from Birmingham City Court.</p> <p>Heard before Hon. H. A. Sharpe.</p> <p>Action by Mrs. Mamie Broyles against the Central of Georgia Railway Company. ■ Prom a judgment for defendant, plaintiff appeals.</p> <p>The complaint was: as follows: Count 2: “Plaintiff claims of the defendant the like sum of ¡§20,000 as damages, for that heretofore, to wit, on or about the 14th day of November, 1906, the defendant was engaged in carrying passengers for hire between Birmingham, Ala., and Montezuma, Ga.; that on or about said date the plaintiff entered a car on one of defendant’s train, in the city of Birmingham, Ala., and while riding therein, and while the said car was at or about'Kellyton, Ala., the said car became wreaked or derailed, and as a result thereof the plaintiff was thrown against a portion of said car in which she was riding, and was bruised, maimed, wounded, and injured internally and externally, and as a result thereof she has been caused to suffer,” etc., a catalogue of which is given. The averments in counts A and B as to negligence are sufficiently set out in the opinion.</p> <p>The following pleas were filed: (1, 2, and 3). The general issue. (4) “For further answer to each of the counts, separately and severally, defendant says that when plaintiff presented herself as a passenger, and got upon defendant’s train at Birmingham, she had in her possession, or her mother, with whom she was at the time, and who undertook to arrange for the transportation of plaintiff, had in her' possession, a pass issued by defendant to one Mrs. J. F. Sloyer and daughter; and the plaintiff, or her mother, Mrs. Little, presented said pass to the defendant’s conductor without disclosing that the plaintiff and Mrs. Little were net the parties mentioned,, described, and referred to in said pass, bnt as if they were the parties entitled to, ride'thereon; and defendant says that plaintiff was not Mrs. J. F. Slover,- or Mrs. Slover’s 'daughter,, .and was not entitled ■to ride on said pass, and had no other, right to be. on said train, and was- accepted as. a passenger and. carried upon said train upon the said, conduct or act of the plaintiff or her. mother in presenting said pass to the defendant’s conducto!*, and the belief of defendant’s servant in charge of said train that plaintiff,was one of the persons entitled to ride on the pass issued to Mrs. J. F. Slover and daughter; and defendant avers that its servants or agents did not know that plaintiff was not one of the persons entitled to ride on said pass; and defendant says-that the plaintiff neither paid noy offered to pay anything for her transportation from Birmingham to Kellyton.” Plea 5 sets up the same state of facts, and alleges that the pass entitled Mrs. Slover and daughter, and no one else, to ride thereon, and was not intended for the use of the plaintiff, and did not entitle her to ride thereof,, and avers that the plaintiff, was neither Mrs. Slover nor her daughter. Plea 7 is in all respects similar to the other two.</p> <p>The following replications were filed to the pleas: (1) “That if any pass or authority for being upon said train was presented to or accepted by the conductor or agent of defendant, and was. a pass or authority for another to ride upon the said train other than plaintiff’s mother or herself, it was without the knowledge of plaintiff.” (2) “Plaintiff says that she entered upon plaintiff’s train at Birmingham, intending to be a passenger thereon from Birmingham to Montezuma,, Ga.; that she was in company with her mother, who had said pass or token; that she, the plaintiff did not have possession of said pass or token, and did not deliver .the same to the conductor or agent of defendant; but that her mother had the said pass or token, and delivered the same to the said conductor or agent of the defendant, and that the said conductor or agent received the same. Plaintiff avers that she went upon said train or car in good faith, believing that she had a right to be there as a passenger, and nojt knowing that she had no right to be received as a passenger upon said train or car under said token or pass, and that said conductor or agent of the defendant received from plaintiff the sum of $1 for the right to ride on said car or train.”</p> <p>The single question in this case is whether or not the appellant was rightfully on defendant’s train, and the following authorities answer the question in the affirmative: 4 Elliott on R. R., sec. 1578; 96 Pa. St. 256; 132 Pa. St. 1; 39 Neb. 798; 161 Mass. 298; 115 N. C. 602; 82 Am. Dec. 293; 107 Ind. 442; 4 Ind. App. 413; 56 Mo. App. 664; 115 Pa. St. 135; 40 Miss. 391; 16 Ore. 261; 30 Fla. 1; 30 111. 9; 1 Sneed 220; 64 Tex. 144; 79 Tex. 371; 118 N. C. 1031; 133 Ind. 346; 75 Am. Dec. 748; 33 Fed. 796; 2 Hutchison on Carriers, sec. 997; Id. 1021-2; 25 A. & E. Ency. of Law, 1081-2-1091; 14 la. 363; B. R. L. & P. Go. v. Brown, 139 Ala. 389; A. G. 8. v. Yarbrough, 83 Ala. 241. Counsel then proceed to discuss the assignments of error seriatum with insistence that on the above authorities the court erred in the several matters discussed in the opinion.</p> <p>The 2nd assignment of error is joint, and unless demurrer was wrongfully sustained to both counts, the assignment is not available. — Bingham v. Davidson, 141 Ala. 551; M. J. & K. G. v. Bromberg, 141 Ala. 258; Seaboard A. L. v. Hubbard, 142 Ala. 546; Western By. v. Arnett, 137 Ala. 414; A. G. S. v. Clark, 145 Ala. 459. Count A is patently bad, for failure to state the relation. — Stringer’s Gase, 99 Ala. 410; Crocker’s Case, 95 Ala. 412; L. & N. v. Barker, 96 Ala. 435; Ohetcning’s Gase, 93 Ala. 23. The errors made the basis of assignments numbered from 12 to 19 inclusive, as to the admission of evidence, and the objection thereto was general in each instance. —Sanders v. Davis, 44 South. 979. The court did not err in giving the affirmative charge for the defendant in this case as the person injured was a trespasser, and the action was in simple negligence. — 2 Hutchison on Carriers, sec. 1172; 28 L. R. A. 749; 108 Fed. 14; 114 Fed. 123; 5 A. & E. Enc. of Law, 486; A. G. G. & A. By. Go. v. Bates, 149 Ala. .487 ; 59 Conn. 531; 45 N. Y. Supp. 861.</p>

<p>Appeal from Walker Circuit Court.</p> <p>Heard before Hon. A. O. Lane.</p> <p>Action by C. F. Harrington against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.</p> <p>The pleadings and facts are sufficiently set out in the opinion of the court. The following charges were refused to the defendant: (1) “The court charges you that if you are reasonably satisfied from the evidence that plaintiff’s injuries were proximately caused by inadequate clothing worn by plaintiff, to meet the demands of the season and climate, you must find for the defendant.” Charges 9 and 10 were the affirmative charges as to the third and fourth counts. (11) “The court charges you that if you believe from the evidence that the cold condition of the car, as complained of by the plaintiff, was due to unusual cold weather, and that plaintiff made no complaint to those in charge of the train, and made no effort to remedy or have remedied the condition of the car, you must find for the defendant.” (12) “If you are reasonably satisfied from the evidence that the mail car was equipped with stoves sufficient to properly warm the car, and that sufficient fuel was placed in the car, the court charges you that it was the duty of the plaintiff, for his own protection to start or cause to be started the fire in said stove.”</p> <p>The court erred in sustaining demurrers to the plea in abatement. Sec. 6112, Code 1907. Counsel discuss demurrers to the complaint, but without citation of authority. Pleas 3, 1, 5, 6 and 7 set up contributory negligence in different ways but each show that plaintiff failed to make complaint and failed to use appliances at hand which with slight trouble on his part would have saved the injury, and the court erred in sustaining demurrers thereto. — Hastings v. Northern Pac., 53 Fed. 326. Pleas 2, 8 and 10 present assumption of risk, and the demur-refs should have been overruled. The court erred in allowing testimony that it was the duty of plaintiff to get on his car an hour before leaving time. — Page v. L. & N.} 129 Ala. 232. Counsel discuss other assignments of error based upon the admission and rejection of evidence but without citation of authority. The court erred in refusing charge 1. — Taylor v. Wabash, 42 L. E. A. 110; Turrentme v. B. & D., 92 N. C. 638. Counsel discuss other charges, but without citation of authority.</p> <p>Counsel discuss the pleas in abatement, but without citation of authority. They insist that the court, properly overruled demurrers to the complaint, and cite: 140 TJ. SL 435; 23 App. D. C. 113; 10 L. E. A. 36; 19 L. E. A. 339. As to most of the pleas of contributory negligence it is sufficient to cite the duties imposed on postal clerks.by the Federal Statute. — Section 5474, Fed. St. Ann.; Fed St. Ann. 924. Counsel discuss motion to dismiss the bill of exceptions not necessary to be here set oue. Counsel also discuss the assignments or error as to evidence, but without citation of authority. They further insist that the court did not err relative to charges given or refused, and cite Taylor v. Wabash, 42 L. E. A. 110; Ala-. G. G. & I. Go. v. Healcl, 45 South. 686.</p>

<p> Damages for Assault gncl Battery on Passenger. </p> <p>. 1. Master and Servant; Tort^Committed by Servant; Form of Action.- — Where the master did not authorize, aid, abet, or ratify the wrongful act' of the servant, his liability for assault and battery committed by the servant while acting within the line and scope of his employment is in case and not in trespass.</p> <p>2. Pleading; Separate Cause of Action; Joinder in One Count.— Distinct and independent causes of action cannot be joined in the same count, and where the action was against the master and a servant for an assault committed by the servant, a count alleging that the servant while acting within the scope of his employment assaulted plaintiff and then proceeds in the same count on the theory of respondeat superior in imputing liability to the master without alleging facts authorizing the inference that the master permitted, authorized, aided, abetted, or ratified the wrongful act, states a cause of action in trespass against the servant and in case against the master, ancl is demurrable for misjoinder of action and parties'.</p> <p>3. Same; Demurrer. — A demurrer to the complaint on the grounds that 1,.,. fails to state facts sufficient to constiute a cause of action against the defendants jointly, and that it affirmatively shows that it is not a joint cause of action sufficiently points out the misjoinder of action and parties.</p>

Heard before Hon. John Pelham. Action by W. T. Reeves against the Anniston Knitting Mills for damages for loss of wages occasioned by an injury to his minor child alleged to' have been inflicted by the negligence of the master. The facts and pleadings are sufficiently set out in a former appeal in this case reported in 154 Ala. 575; 45 South. 702, reference to which is hereby made. Judgment for defendant and plaintiff appeals.

Heard before Hon. A. D. Sayre. Action by W. H. Bowell against tbe Western Union Telegraph Company for failure to deliver a message. Plaintiff had judgment, and defendant appeals. A statement of the pleadings and the facts in this case may be found in the former report of it in 153 Ala. 295, 45 South. 73.

<p> Damages for Assault ancl Battery. </p> <p>1. Evidence; Res Gestae. — Where the action was for assault and battery alleged to have been committed on the plaintiff by a servant of the defendant occasioned by the plaintiff’s attempt to prevent the servant of the defendant from entering on plaintiff’s land, it was competent to show whether or not just before the assault the servant had told the plaintiff that the general manager of the defendant had instructed him to go through the gate onto plaintiff’s land, if immediately preceding the effort to enter the gate, the statement was made, since it would be of the res gestae of the transaction</p> <p>2. Principal and Agent; Relation; Jury Question. — The evidence in this case stated and examined and held to require a submission to the jury as to whether the person committing the assault was at the time acting as the agent of another.</p> <p>3. Same; Declaration of Agent; Proof of Agency. — Where the existence of agency is an issue and the facts rest in parol and there are in evidence other facts and circumstances tending to show the agency the declarations of the agent become admissible.</p> <p>4. Appeal and Error; Harmless Error; Instructions. — In an action for assault and battery alleged to have been committed on plaintiff bv an agent of the defendant, a charge asserting that if defendant, the master gave such servant orders to go through plaintiff’s gate, and if conforming to such orders, was calculated to produce a difficulty of which defendant knew, and if in carrying out such instructions the servant assaulted plaintiff, then the defendant would be liable, was not prejudicial to the defendant.</p> <p>5. Same; Evidence. — Where there was no dispute between the general manager of the defendant and the servant, the admission of the same fact on questions to another witness than the servant was not prejudicial to the defendant.</p> <p>6 Assault and Battery; Acts Constituting. — Although one is entitled to the unhindered enjoyment of a way across another’s land, such right would not authorize an assault and battery upon the other to enforce it.</p> <p>7. Master and Servant; Liability for Acts of Servants; Torts.— If the instructions given a servant by the master imputed authority to go through a gate on to plaintiff’s land, and the authority was abused by the servant, the master would be liable through the servant’s act in assaulting the plaintiff at the gate in order to enter was not anticipated or expressly authorized by the master.</p> <p>8. Same; Injury to Third Persons; Exemplary Damages. — If a servant acting within the scope of his employment undertakes to enforce with might, weapons and great bodily hurt, a civil right of the master to enter plaintiff’s land the assault would be aggravated and the master would be liable for exemplary damages.</p> <p>9. Same; Evidence.- — It was admissible for the servant to testify as to the instructions given him by the general manager of the defendant.</p> <p>10. Same; Instructions. — Where the action was for an assault by defendant’s servant occasioned by plaintiff refusing to permit such servant to go through a gate on plaintiff’s land, a charge asserting that although the servant was authorized to go through the gate, such authority did not carry with it the authority to assault plaintiff in the attempt to pass through, and if the servant assaulted plaintiff without defendant’s authority, defendant would not be liable, and that before the jury could find for the plaintiff, the jury must find from the evidence that the servant had authority from defendant express or implied, to commit the assault, were properly refused as tending to mislead the jury to the conclusion that expressed or implied authority to commit the particular act complained of was essential to render the defendant liable.</p> <p>11. Same.- — A charge asserting that if the servant assaulted plaintiff as a result of anger aroused by plaintiff’s conduct, plaintiff could not recover, was properly refused since its hypothesis may have been true, and yet there might have been a liability existing on the defendant, since the charge did not ascribe the cause of the assault to the state of feeling or temper of the servant independent of his relation to the service and to his master.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. C. C. Nesmith.</p> <p>Action by Oonnatto Scipio against the Pioneer Mining & Manufacturing Company and others, for damages for an alleged trespass and assault committed by one of the defendants alleged to be a servant of the other defendant. Judgment for defendants and plaintiff appeals.</p> <p>The whole case turns upon the question as to whether or not Thomas was an agent of the defendant, and this question should have been submitted to the jury under the evidence.- — Ins. Co. v. Gatchings, 104 Ala. 186; Ins. Co. v. Lesser, 28 South. 646; M. & O. v. Hopkins, 41 Ala. 486; Bank of Montgomery v. Plannetto, 87 Ala. 222; King v. Pope, 28 Ala. 601. As to how acts of agency may be shown see. — 101 Ala. 1; 39 Ala. 33; 38 Ala. 208; 20 Ala. 313.</p> <p>As defining an assault see. — 1 Mayf. 69; 3 Cyc. 1066-68; 2 A. & E. Enc. of Law, 983. There can be no constructive intent in an action for an assault. — McCormack v. The State, 102 Ala. 156. Where the premises are occupied, an action of quare clausam fregit can be maintained only by the person in possession. — 28 A. & E. Enc. of Law, 573; 15 111. 558 ; Dean v. Comstock, 32 111. 179. Under the count in this complaint, actual participation by the corporation must he shown. — City D. Co. v. Henry, 139 Ala. 161; C. of Ga. v. Freeman, 140 Ala. 581. The court properly gave the affirmative charge because the complaint was without support either in fact or justifiable inference. — L. & N. v. Perkins, 152 Ala. 133.</p>