Volume 167 — Alabama Reports

<p> Seduction. </p> <p>1. Seduction; Evidence; Complwint of Prosecutrix. — Whether or not the prosecutrix made immediate complaint is immaterial in a prosecution for seduction.</p> <p>2. Appeal and Error; Argument of Counsel; Invasion of Right. — ■ Where counsel, in criticizing the testimony of a witness, did not exceed the bounds of legitimate argument, it was error for the court to instruct the jury not to regard that portion of the argument of counsel for accused wherein he criticised the evidence of a certain witness, since it is the constitutional right of all accused of crime to be heard by counsel.</p> <p>3. Same; Necessity of Reserving Exceptions. — Where no exception was reserved in the trial court to an oral instruction directing the jury that they must consider the interest of accused in the case in weighing his testimony, if _ it was error it is unavailing on appeal.</p> <p>4. Charge of Court; Invading Jury’s Province. — An instruction that the jury may weigh the testimony of the accused in the light of his interest in the result of the verdict is proper, but it is an invasion of the province of the jury to instruct that they must do so.</p> <p>5. Same; Directing Verdict. — The general affirmative charge is properly refused where there is any evidence upon which the jury is authorized to base a verdict of guilty, in a criminal prosecution.</p>

<p> Murder. </p> <p>1. Homicide; Evidence. — Where there was no evidence tending to -show nor any offer to prove that the defendant knew of the deceased having obtained a pistol from a third person on the day before the killing, evidence that the deceased obtained such a weapon from such third person is not admissible.</p> <p>2. Same; Threats. — Where it is doubtful as to who commenced the affray and obscurity in the testimony as to the conduct of the parties immediately preceding and at the time of the difficulty, evidence of uncommunicated threats made by the deceased become admissible in a homicide case for the purpose of shedding light as to who was the aggressor.</p> <p>3. Same. — Clothes worn by the deceased at the time of the fatal ■difficulty are admissible in evidence.</p> <p>4. Appeal and, Error; Harmless Error; Evidence. — The fact that the deceased had been a marshal was harmless to the defendant, and it was harmless error to sustain objection to questions as to ■certain protests against the deceased being a marshal.</p> <p>5. Evidence; Hearsay. — Protests of other citizens against a person being made a marshal, is in the mouth of a witness not a prot•estant, hearsay evidence.</p> <p>6. Same; Motive. — One testifying cannot state his or another’s motives for doing a particular act.</p> <p>7. Homicide; Instructions; Self Defense. — A charge asserting that the defendant did not provoke or bring on the difficulty, and that if deceased turned toward him and put his right hand in his hip pocket so as to indicate to a reasonable man his purpose to draw a weapon and use it, the defendant was authorized to anticipate him •and shoot first, not only invaded the province of the jury but was ■otherwise bad.</p> <p>8. Same; Burden of Proof. — A charge asserting that the burden was on the state to show that defendant was at fault in bringing on or provoking the difficulty, and to show that such was the case beyond a reasonable doubt, was properly refused as misleading in not •stating the conditions on which the burden was on the state to prove freedom from fault.</p> <p>9. Same. — A charge asserting that in order to convict the state must prove that there was no reasonable means of escape for the defendant, is. properly refused.</p> <p>10. Same. — Charges on apparent danger are properly refused if they fail to hypothesize the fact as a fact that defendant did believe that he was in imminent danger of death or great bodily harm.</p> <p>11. Same. — A charge asserting that if the defendant shot - in self defense as defined by the court, he did not hill deceased voluntarily in the sense used in the code in defining murder, and the jury should acquit, is properly refused.</p> <p>12. Same. — A charge on self defense which fails to hypothesize all the elements thereof is properly refused.</p> <p>13. Charge of Court; Reasonable Doubt. — A charge to acquit the defendant unless the evidence “should be such as to exclude to a moral certainty” every hypothesis but that of his guilt, is properly refused since the question never is what the evidence should be, but what it is, and the hypothesis authorizing an acquittal must be reasonable.</p> <p>14. Same; Faulty in Form. — A charge asserting that if there is a reasonable doubt that the defendant was free from fault in bringing on the difficulty, and that deceased made demonstrations which were calculated to lead a reasonably prudent man to the belief, is incomplete and states no proposition.</p> <p>15. Same; Effect of Conviction. — Juries are to try and determine the causes according to the facts and the law, and not according to their opinion as to whether public peace and good order will be promoted by a conviction, and hence, a charge which permits the jury to consider the effect of a conviction in this respect, is properly refused.</p> <p>16. Same; Covered by Those Given. — It is not error' to refuse charges substantially covered by charges given.</p> <p>17. Same; Argumentative Instructions. — Charges which are argumentative are always properly refused, such as charges 9 and 10 in this case.</p>

Heard before Hon. C. P. Almon. Willie James was convicted of murder in the first degree, and appeals.

Heard before Hon. Thomas W. Wert. From a conviction of murder Bob Clemons appeals. The power of the court to make an order for tbe grand jury must be found under statutes creating tbe court, or the general statute. — O’Byrne v. The State, 51 Ala. 25. There is no discretion resting in the court, to organize a grand jury in a manner other than the statute provides. — Berry v. The State, 63 Ala. 126; Tucker v. The State, 44 South. 587. See in this connection Local Acts p. 193.

Heard before Hon. C. P. Almon. John J. May was convicted of homicide, and he appeals. The matters of evidence objected to sufficiently appear in the opinion.

<p> Murder. </p> <p>1. Homicide; 'Evidence. — Where the prosecution was for murder alleged to have been committed by defendant and other striking miners by dynamiting house No. 158, in which decedent was, a witness, a non-striking employe, who knew the defendant was competent to state whether the defendant lived in house No. 159, next to 158, before he moved off the company’s premises.</p> <p>2. Same; Res Qestae. — Where the evidence tended to show that a number of the company’s houses were blown up at the same time by the same person as a part of a common design, and the prosecution was based upon the blowing up of the house 158 in which decedent was, alleged to have been blown up by the defendant and other-striking miners, a witness who testified that he went to the houses that were blown up and that persons were then living in all the houses, including 158, such witness could testify as part of the res gestae that persons were injured in the other houses.</p> <p>3. Same; Silence in Face of Accusation. — The officer who arrested the defendant under a charge of dynamiting a certain house in which decedent was could testify that immediately after the arrest he called defendant’s attention to the condition of his pants and told him that he had done what he said he was going to do and what they had him in jail for threatening to do; that his pants were wet at the knees and showed that he had been out in the grass, and that he was the guilty party, and to which defendant made no reply, though not under restraint at the time, on the theory that where one accused of guilt remained silent when he has an opportunity to deny the allegation, is admissible as a circumstance tending to show guilt.</p> <p>4. Same; OVjection m Loioer Court. — A general objection to a question to a witness whether another who was arrested with the defendant, on the charge of dynamiting a certain house in which decedent was, made any statement in the defendant’s presence, the answer to which was, that in the presence of the defendant it was stated that defendant and several others were with the crowd who left the striking miner’s tent the night before the dynamiting and came back thereafter, was properly overruled, since the question was capable of eliciting competent evidence, and no motion was made to exclude the answer.</p> <p>5. Same; Confessions; Laying Predicate. — A proper predicate for. proving confession was laid when the witness was asked if accused with defendant, about' an hour or two after the dynamiting, as persons were passing, did not make a statement as to the dynamiting, and answered that he did, and that such statement was voluntary, and it was then competent to ask the witness what the defendant said and did at the time.</p> <p>6. Same; Res Gestae. — -Where the prosecution was for murder al- . leged to have been committed by accused and other striking miners by dynamiting a house in which decedent was, a witness who testified that after he heard the explosion, he also heard pistol and gun shots in the direction where the last explosion occurred, could be asked if he could tell from the sound whether they were pistol or gun shots or both, as the question calls for evidence within the res gestae.</p> <p>7. Same; Certainty. — A sheriff-who knew accused could be asked as to a conversation between accused and other persons who were in one cell in the jail on a certain night after they had been arrested for a homicide resulting from the dynamiting of a house, and at a time when they did not know that the sheriff was present, in which conversation the sheriff was sure that he recognized the defendant’s voice, the questions asked calling for admissions or statements made by others in the defendant’s presence tending to implicate the defendant in the crime charged and it was competent for such witness to answer that the defendant said that they must stick together, and that another said when they got out they would go right back, and another stated that it would be just like some of the negroes implicated to turn state’s evidence, and accused said that if he ever got into anything else he did not want such a big crowd; it was for the jury to determine whether or not it was accused’s voice, and as to the weight of the evidence.</p> <p>8. Same; Admissions. — A statement by one charged with homicide committed by dynamiting a house that if he ever got into anything else he did not want such a big crowd was an implied admission that he participated in the crime charged.</p> <p>9. Same; Evidence. — Where a witness answered that he went as a deputy sheriff to the tent where accused was could be asked who else was in the tent with the defendant, since such evidence tended to show that the defendant and another jointly indicted with him had been together at the time and place of the dynamiting, and that each was dressed in a particular way at that time, and was still so dressed; the charge being that accused and others dynamited a house in which decedent was.</p> <p>10. Same. — Where the state’s theory was that the defendant and others arrested at that time were co-conspirators in dynamiting the house in which decedent was, and that on the night of the dynamiting they went through wet grass and dew, it was permissible to show that their shoes were wet and that their pantaloons were wet up to ther knees when arrested shortly after .the dynamiting.</p> <p>11. Appeal and Error; Review. — Where a question could not have been answered by competent evidence, tbe court will not be put in error for overruling a general objection.</p> <p>12. Trial; Reception of Evidence; Rebuttal. — Where the defendant’s witnesses stated who was at the place at the time the defendant was arrested, and named the defendant and another, the state on rebuttal could inquire into the same matter.</p> <p>13. Same; Time of Offering. — A trial court, can, in its discretion, allow additional evidence concerning a matter already testified to by a state witness before the state first rested its case.</p> <p>14. Same; Reception of Evidence. — It is usually the better practise to require the state to offer all its evidence upon a given matter in making out its case in the first instance, but it is within the discretion of the trial court to permit it to be done afterwards.</p> <p>15. Same; Rebuttal; Scope. — Where defendant denied remaining silent when charged with the commission of the crime, it was competent for the state to offer evidence in rebuttal, tending to show the contrary, since the state may offer evidence rebutting evidence offered by the defendant.</p> <p>16. Jury; Summoning; Officers; Disqualification. — It is not contrary to the official duties of the sheriff to assist actively in working up evidence against a defendant, and hence, his doing so does not disqualify him from summoning jurors to try the case.</p> <p>17. Witnesses; Examination; Re-direct. — Where a state witness was asked on cross examination if he did not meet and converse with some persons while he was going through the camps where the explosion occurred, who told him that the strikers had gone towards the dago stand, could be asked on re-direct examination what such persons told witness as to the way the people ran, so long as he confined himself to the same conversation about which the defendant had inquired; the state being entitled to have the witness state the whole of the conversation where the defendant had brought out a part of it.</p>

Heard before Hon. W. W. Haralson. From a conviction of manslaughter in the first degree George Lowman appeals. The court erred in permitting the state to challenge the juror Bailey because he had been a witness for the defendant. — Subd. 10, Sec. 7276, Code 1907.

Heard before Hon. H. B. Foster. Howard Gallant was convicted of murder and he appeals. Counsel insist that the evidence tending to show ill will on the part of the defendant towards his sister and stepmother was not admissible for any purpose and in support thereof cite Clark v. 'The State, 78 Ala. 472; 2 Enc. of Evi. 737; Sec. 4198, Code 1907; Page v. The State, 61 Ala. 16; DuBose v. The State, 50 Ala. 139; Raglan v. The State, 125 Ala. 12; 17 Cyc. 242.

Heard before Hon. T. L. Sowell. Griffith Davidson was convicted of murder in the second degree and he appeals. Counsel discuss the errors assigned to the organization of the jury, but it is deemed unnecesary to here set out the authorities. Appellants insist that the court erred in refusing the charges requested, especially charge “H,” and in support thereof cite Williams v. The State, 129 Ala. '659; Hale v. The State, 122 Ala. 85; Hurd v. The State, '94 Ala. 100.

’ Heard before Hon. John Pelham. Columbus Gaines, alias, etc., was convicted of rape, and appeals.

<p> Burglary. </p> <p>1. Infants; Criminal Prosecution; Juvenile Delinquents. — Section 6450, Code 1907, as amended hy Acts Special Session 1909, p. 107, does not authorize the trial of a child under fourteen years of age charged with burglary committed prior to said amendment as a juvenile delinquent, although not brought to trial until after the amendment became effective, since said section as amended applies only to children under fourteen charged with misdemeanor or the violation of city ordinances.</p> <p>2. Evidence; Confessions; Iinfants; Statutes. — Although section 6464, Code 1907, is in the chapter entitled “children, juvenile delinquents,” it is general in its application and precludes the admission of confessions made by a child under fourteen years old in a prosecution against him for burglary.</p>

Heard before Hon. William Jackson. Stanford Phillips was convicted of petty larceny and he appeals. The motion in arrest of judgment should have been granted because the indictment charged grand larceny while the conviction was for pettit larceny.- — Stone v. The State, 115 Ala. 121. On the proof the court should have instructed a verdict for the defendant. — McCullough v. The State, 63 Ala. 79; Carl v. The State, 125 Ala. 104; Willis v, The State, 134 Ala. 450.

Heard before Hon. O. P.Almon. Vernon Jackson was convicted of tbe larceny of a gun, and be appeals. Tbe court erred in permitting tbe witness Willis to state tbat be received a package from Herron that was said to be a gun. — Bemtett v. The State, 52 Ala. 370; McKee v. The State, 82 Ala. 32; Riley v. The State, 88 Ala. 193. Tbe rule is that a witness must state facts and not bis deduction or conclusions. — 1 Mayf. 338.

Heard before Hon. C. P. Almon. Cl eye Johnson was convicted of the larceny of certain money, and he appeals. The defendant was entitled to the affirmative charge because it was not shown that the money stolen was currency of the United States as alleged in the indictment. — McGehee v. The State, 52 Ala. 224.

H'eard before Hon. S. Hi. Sprott. Frank Sanders was convicted of larceny and receiving stolen goods, and be appeals.

<p> Embezzlement. </p> <p>Criminal Load; Judgment; Sufficiency. — A judgment in a misdemeanor ease which fails to ascertain the amount of costs and the number of days sufficient at hard labor for working them out is irregular, and where such appears to be the facts, the supreme court will reverse the cause and remand the same for proper sentence.</p>

Apeal from Jefferson Criminal Court. Heard before Hon. S. L. Weaver. Will Knox was convicted of violating tbe prohibition laws, and be appeals. Tbe motion- to quash and tbe demurrer came too late. — Garrett v. The State, 97 Ala. 18; Banna v. Grew 32 South. 822. Tbe court did not err relative to tbe evidence. — By an v. The State, 100 Ala. 94.

Heard, before Hon. Thomas W. Coleman, Jr. Tom Bayfield was convicted of violating tfie prohibición laws, and he appeals. The court erred in the charge given. It is not only a charge upon the effect of the evidence but pretermitted the consideration of the plea of insanity. — Young v. The State, 58 Ala. 358; Campbell v. The State, 79 Ala. 271; Morgan v. The State, 81 Ala. 72; BuBois v. The State, 87 Ala. 101; Bonds v. The State, 130 Ala. 117; Maples v. The State, 130 Ala. 121.

Heard before Hon. S. L. Weaver. Jim Bed was convicted of violating tbe prohibition law and he appeals. The judge of the inferior court of Birmingham ivas without authority to issue a warrant returnable to the criminal court of Jefferson county much less to make the warrant returnable to the judge of such court. — Lee v. The State, 143 Ala.

Heard before Hon. A. A. Evans. Press Clark was convicted of violating tbe prohibition law, and he appeals. The indictment was framed under section 7352, and does not purport to follow the code form in such cases, the general prohibition law repealed this section and at the time the indictment was found there was no such section in the Code. The evidence shows a loan and not a barter or sale. — State v. Maries, 159 Ala. 88.

Heard before Hon. Thomas W. Coleman, Jr. George Tilley was convicted of violating tbe prohibition law and he appeals. Counsel discuss the issues raised by the assignments of error but cite no authority in support of their contentions. The court did not err in permitting the state to prove the good character of the witness since an attempt had been made to impeach him. — Bell v. The State, 124 Ala. 94; Solly v. The State, 105'Ala. 100.

Heard before' Hon. William; Jackson. Joe Colley was convicted of violating the prohibition law and he appeals. The court erred in not allowing the juror Gunn his exemptions as claimed by him. — Secs. 4629 and 7245, Code 1907. The court erred in admitting evidence of the sale by defendant’s clerk of the whisky and his arrest and trial therefor. The section under which the proceedings Avere had, namely 7849, Code 1907, has been declared void. — 50 South. 370.

A. F. Fite, Special Judge. Isaac Lollar was convicted of appearing in a public place where others were present and manifesting a •drunken condition by boisterous or indecent conduct or loud and profane discourse, and he appeals. The Court erred in permitting the opinion of the witness. — Jackson v. The State, 137 Ala. 180. The court should have given charges 2 and 3. — Roden v. The State, 136 Ala. 89.

Heard before Hon. A. HI Alson. Action by V. Foust against Bain Bros., in trespass- and trover for the conversion of cotton and other crops. From a judgment directed for the defendant, plaintiff' appeals. The-statement of the owner who had the legal title to said, crop was authority to the tenant to mortgage same so as. to convey the legal title thereto. — Sellers & Go. v. Malone Pilcher & Go., 44 South. 414; 2 A. & E. Enc. of Law, 955.

Heard before Hon. Thomas W. Wert. Action by J. M. Engle against M. F. Patterson and others for false imprisonment and malicious prosecution. Judgment for defendants, and plaintiff appeals. A good many rulings are invoked on the pleadings; but they are unnecessary to be here set out, in view of what is said in the opinion.

Heard before Hon. Jopin T. Lackland. Action by J. W. Gulsby against the Louisville & Nashville Railroad Company for maliciously and without probable cause, procuring the issue of a search warrant directed against the premises of plaintiff. Prom a judgment for defendant, plaintiff appears.

Heard before Hlon. A. H. Alston. Action by Mrs. Nellie Cleaney against T. O. Parker and others. Prom a judgment for defendant, plaintiff appeals.

Heard before Hon. William Jackson. Action by O. C. Walls and others against C. D. Smith & Co., and others for damages. Judgment for {defendants, and plaintiffs appeal.

.Appeal from Madison Law and Equity Court. Heard before Hon. Tancred Betts. Action by A. R!. Grogan against the Abingdon Mills. From a judgment for plaintiff, defendant appeals. The complaint contained five counts, all of which were in Code form.

Heard before Hon. Charles A. Senn. Action by Mrs. M. A. Smith against Sibley & Sibley, for trespass debonis asportatis and trover. Judgment for plaintiff and defendants appeal. The court erred in declining to allow the docket to be admitted upon the agreement of counsel made. — J ones v. Davis, 2 Ala. 731. The docket was the best evidence of the former adjudication. — Ware v. Robertson, 18 Ala. 105; Thompson v. The State, 14 South. 878.

Heard before Hon. A. A. Evans. Action by J. W. Pippin against the Farmers’ Warehouse Company and others. Judgment for defendants, and plaintiff appeals.

. Heard before Hon. A. O. Lane. Action by Nellie M. Houston against J. L. Mattingly and others. Judgment for plaintiff, and defendants appeal.

Heard before Hon. Samuel B. Browne. Action by Burrell Emanuel against G. T. Jordan and another, in trespass quare clausum fregit and in trover. Judgment for plaintiff and defendants appeal. Growing crops are personal property where they are the product of annual sowing or planting. — 56 Ala. 544; 73 Ala. 547. The bill of sale was not void for uncertainty.— Woods v. Rose, 135 .Ala. 300; Wade v. Straohan, 71 Mich. 461; 5 A. & E. Ency 915; 20 Id. 919.

Heard before Hon. Samuel B. Browne. Trespass by J. B. Robertson against the Home Telephone Company. Judgment for plaintiff and defendant appeals. Whether the Eastern Shore Telephone Company connected at Mobile with the Home Telephone Company, had not even a remote bearing on the issue in this case. — C. of Ga. Ry. Go. v. Vaughan, 93 Ala. 209; Harwood v. Harper, 54 Ala. 659; Bolton v. Guthbert, 152 Ala. 407.

Heard before Hon. John H. Disque. Action by Otto E. Fischer against E. T. Schuler. From a judgent for plaintiff, defendant appeals. ' The complaint declares that defendant spoke of and concerning plaintiff, in the presence of persons, in substance as follows: “He is a thief” — laying the date as on or about the 15th day of August, 1908. The first and second pleas were the general issue.

(McClellan, Mayfield and Evans, JJ., dissent in part.) Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Action by W. A. Hunt against the Mutual Fidelity Life Insurance Company. Held: against the company’s contention, that the quicksands of Pecos river swallowed np the body of Hunter beyond discovery.

<p> Libel and Blander. </p> <p>1. Libel and Slander; Words Actionable Per se. — Words which impute larceny are actionable per se.</p> <p>2. Same; Imputing Grime; Malice Presumed. — Words imputing crime are presumed to he malicious and no other evidence of malice is necessary, unless the words are privileged.</p> <p>3. Same; Good Character. — The gist of an action for words imputing larceny is the false and malicious injury to plaintiff’s character, and in addition to the presumption in his favor the plaintiff may show his good character and the falsity of the charge as proving malice in fact and as affecting the measure of recovery.</p> <p>4. Same; Evidence. — Where the defendant was permitted to testify without objection that he had never stolen cotton from any one, and that at the date of the contract the company of which defendant was president became indebted to him under the contract in a large sum for advances made by him to wage hands on the plantation and for cultivating the crops up to that date, and the court admitted evidences of advances after the date of the contract but declined to admit evidences of advances before said date, and there was no objection to this limitation, and the defendant was thereafter asked whether some of the indebtedness to which he had testified was not for money furnished the share croppers, and objection was sustained thereto, this latter ruling was not a departure from the previous ruling; the distinction asserted by the question, if any, not affecting the charge against plaintiff alleged to have been made by the defendant.</p> <p>5. Same; Variance; Interpretation of Language. — The language used as a basis for slander is to be interpreted in its ordinary acceptance, and if to the ordinary apprehension the charge is larceny, it will not be held to constitute a charge of embezzlement and so establish a variance for the reason that it was defective as a technical charge of larceny, and that the charge of embezzlement would have been more appropriate. ;.,</p> <p>6. Same; Evidence of Malice. — One making a slanderous statement knowing that it was untrue is conclusively presumed to be actuated by malice.</p> <p>7. Same; Privileged Communication. — No privilege attaches to mere gossip.</p> <p>8. Same. — Communications by an employer to a superintendent as to the care and protection of property committed to him are confidential, and, if made without express malice, are not actionable, though unjust and expressed in terms supporting an action under different circumstances.</p> <p>9 Same. — Communications by an employer to his superintendent as to the protection and care of property committed to him are conditionally privileged at least. In such instances the law withdraws the legal inference of malice and gives protection on condition that actual or express malice, as distinguished from malice implied by law where a wrongful act is intentionally done, is not shown.</p> <p>10. Same. — A privilege is not defeated by the mere fact that the statement is made in the presence of others than the parties immediatly interested, or by the fact that the communications are intemperate.</p> <p>11 Same. — In determining whether a communication is privileged the" test is whether it is made in good faith in discharge of some legal or moral duty or in the fair and honest prosecution of right or protection of interest on the one hand, or on the other as inspired by ill will, and such question is for the decision of the jury.</p> <p>12. Same; Actual Malice; Determination. — If a communication wherein an alleged slander was repeated was privileged, it cannot be weighed against the defendant as going to show actual malice in the communication on which the suit was based.</p> <p>13. Same; Instructions; General Charge. — Where the version of the words alleged to have been used as given by the plaintiff was so variant from that as given by the defendant that a variance between the pleading and proof would have resulted from the unqualified acceptance of defendant’s testimony, the general charge could not properly be given for the plaintiff.</p> <p>14. Same; Privileged Communications; Instructions. — The privileged character of the communication was asserted with proper hypothesis by the court in a charge that if, on an occasion previous to that laid in the complaint, defendant stated to the witness that plaintiff had stolen cotton belonging to the company, or had diverted it to his own use, or words to that effect, as testified to by the witness, and at the time defendant had a right to believe witness was superintendent of a farm and the words were spoken in what the defendant honestly believed to be in discharge of his duties in the interest of the company, defendant’s utterances on that occasion were privileged communications, from which the law withdraws an inference of malice, and that they were not malicious and could not be considered as evidence of malice in the utterances in the complaint.</p> <p>15. Same. — A charge asserting that if the defendant at the time had a right to believe the person to whom he spoke was superintendent of the company’s farm and the words were spoken with a view to protect its interest against plaintiff, his statement was a privileged communication, though he may have entertained improper or even unjust suspicion of plaintiff’s honesty, failed to assert the privileged character of the communication with proper hypothesis, since the publication in such a case may have been malicious though made to protect the company’s interest, and if both motives therein expressed concurred, there was no privilege.</p> <p>16. Charge of Court; Not Supported ly Evidence. — A charge not supported by the evidence is always properly refused.</p> <p>17. ' Appeal and Error; Review; Exclusion of Evidence. — If the ruling of the court in excluding evidence can be sustained on any ground error will not be imputed.</p> <p>18. Same; Error Not Apparent. — Where neither the question which was overruled as to a certain agreement nor the record disclosed the nature or relevancy to any issue of the agreement proposed to be shown, error cannot be imputed.</p> <p>19. Evidence; Parol Affecting Writing. — Where the slander was based on a charge of larceny of cotton from a plantation, managed by the plaintiff under a contract with the company of which defendant was president, and if plaintiff’s appropriation of the cotton was honestly made in reliance on the agreement between him and the president, it was competent for plaintiff to show an agreement which authorized the appropriation of the cotton in order to show his intent and thus to falsify the alleged slander and to show the president’s knowledge of such an agreement, and this without infringing on the rule that as between the parties in a proceeding to enforce the contract the writing becomes the sole memorial of all prior and contemporaneous agreements; so the plaintiff might be asked as to the agreement between he and the president without the question being objectionable as seeking to vary by parol the terms of a written contract.</p>

<p>Appeal from Walker Circuit Court.</p> <p>Heard before Hon. James J. Ray.</p> <p>Action by W. M. Dickinson, a convict, against the Sloss-Sheffield Steel & Iron Company, for assault and battery. Judgment for plaintiff and defendant appeals..</p> <p>Plaintiff was a county convict from Walker county,, and was hired to the Sloss-Sheffield Steel & Iron Company, and worked by them under the regulations prescribed by the state board of convict inspectors for working convicts. The assault and battery charged as having been committed by the defendant grew out of corporal punishment inflicted by the deputy warden for an alleged infraction of the rules. Seven lashes were administered with a leather strap, and the plaintiff lost no time from his work. The main controversy was ■over the disputed fact as to whether or not the plaintiff was chargeable with slate found in the coal cars under plaintiff’s check number; plaintiff being what is known as a check runner, with a number of miners working under him, and the coal mined by them sent out under his check number. The task of each miner was 20 tons a day, and the check runner was responsible for the task of the men under him, and also responsible for the quality of the coal. Plaintiff claims that when he was whipped he was told that he was whipped .because he was two cars short, and defendant contends that he was whipped for having slate in the coal after being warned against sending out slate, and after having been accused of a former dereliction.</p> <p>The following charges were refused to the defendant: .(2) Affirmative charge as to the second count. (4) “The court charges the jury that you cannot allow the plaintiff any damages under the first count for mental •suffering and humiliation.” (6) “If the evidence reasonably satisfies you that Mr. Hall, who whipped the plaintiff, was at the time deputy warden, in the service -of the state, you must find for the defendant.”</p> <p>Each count charged an act of the defendant itself not for the unauthorized act of the servant for which it was responsible, and the defendant was entitled to the general affirmative charge. — City D. Oo. v. Henry, 139 Ala. 161; Bir. South, v. Gunn, 141 Ala. 372; Bir. B. R. R. Go. v. Gerganous, 142 Ala. 238. On these authorities charges 1. and 2 should have been given. Charge 4 should have been given as compensatory damages were not claimed. ■ — Irby v. Wilde, 43 South. 574. The damages were excessive and the court should have awarded a new trial. —Bir. R. & E. Co. v. Ward, 27 South. 471. — 13 Cyc. 130.</p> <p>Counsel discuss refused charges 5, 1 and 2, but without citation of authority. They insist that charge 4 was properly refused on the authority of Dothard v. Sheid, 69 Ala. 135. Counsel also discuss charges 6 and 7, as well as the application for a new trial, but without citation of authority.</p>

Heard before Hon. C. C. Nesmith.' Action by Velma Hacelip by her next friend against Dr. J. B. Shelton. ' Judgment for plaintiff and defendant appeals. The testimony of an examining physicion is of higher dignity than mere opinion evidence. — Bennett v. Fail, 26 Ala. 603. A physician is not liable in damages for an error in judgment. — Barker v. Lane, 49 Atl. 963; Etaloch v. Holm, 111 N. W. 295; Tefft v. Wilcox, 6 Kan. 43; Tenny’s Case, 123 Ala. 527.

Heard before Hon. A. A. Coleman. Action by tbe Max J. Winkler Brokerage Company against B. E. Darby for fraud in procuring them to purchase bis salary. Judgment under tbe direction of tbe court for the defendant and plaintiff appeals. This action is not on tbe contract.

Heard before Hon. A. O. Lane. Action by G. B. Mitchell against the Sloss-SheffMd Steel and Iron Company for damages for causing the overflow of lands. Judgment for plaintiff and defendant appeals. See also, Sloss-Sheffield S. & I. Go. v. Mitchell, 161 Ala. 278, 49 South. 851.

■ Heard before Hon. W. W. Pearson. Action by T. J. Zeigler against tbe Louisville & Nashville Railroad Company for damages for killing a dog.

W. J. Pearce. Action by C. L. Steed against W. D. Staples for damages resulting from the hilling of a horse. Judgment for plaintiff, and defendant appeals. The case made by the pleading and proof is sufficiently stated in the opinion.

Heard before Hon. Tancred Betts. Action by Clara Payne, an employe, against the Lowe Manufacturing Company 'for damages for injury to her hand while cleaning a spinning frame in obedience to orders from her employer. Judgment for plaintiff and defendant appeals.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. A. O. Lane.</p> <p>Action by Thomas Harmes by next friend against the Tennessee Coal, Iron and Railroad Company, for damages to the employe. Judgment for plaintiff and defendant appeals.</p> <p>Counsel discuss the issues and the evidence and conclude that the defendant was entitled to the affirmative charge, and in support thereof cite: L. & N.. R. R. Go. v. Lowe, 48 South. 99; L. & N. R. R. Go. v, Allen, 78 Ala. 494; Western B. G. & F. Go. v. Gunningham, 48 South. 109.</p> <p>The evidence in this case was sufficient to require a submission of the questions of negligence authorizing a recovery to the jury. — Bir. R. M. Go. v. Rockhold, 143 Ala. 126; Bir. R. M. v. Myers, 150 Ala. 344. See, also, 2 Lebatt on M. & S., sec. 834, and authorities cited.</p>

Heard before Hon. C. C. NeSmith. Action by Lawrence B. Boggs as administrator, against the Alabama Consolidated Coal & Iron Company, for damages for the death of bis intestate, an employe. Judgment for defendant and plaintiff appeals.

Heard before Hon. B. M. Miller. Action by Lillian C. Lee against tbe Southern Railway Company. Judgment for plaintiff, and defendant appeals. Tbe substance of tbe complaint is sufficiently set out in tbe opinion.

Heard before Hou. W. W. Haralson. Action by G. L. Ragan against the Nashville, Chattanooga & St. Lonis Railway for damages to a well-drilling outfit resulting from a defective crossing. Judgment for plaintiff and defendant appeals.

Apeal from Birmingham City Court. Heard before Hon. H. A. Sharpe. Action by Cassie Fox as administratrix against the Birmingham Southern Railway Company for damages for the death of her intestate. Judgment for plaintiff and defendant appeals. The court erred in allowing it to be shown in this case that the whistle was not blown nor the bell rung. — N. G. & St. L. v. Harris, 142 Ala. 252.

Heard before Hon. H. A. Pearce. Action by A. S. Douglas and another against the Miller-Brent Lumber Company, for damages to. property by fire alleged to have been set out by one of its passing locomotives, judgment for the plaintiff and defendant appeals. The evidence was not sufficient to require a submission to the jury of the question of negligence on the part of the defendant in setting out the fire. — 'Southern By. Co. v. Dickens,'49 South. 766. 33 Cyc. 1354.

Heard before Hon. S. H. Sprott. Action Albartus D.emoville against the Alabama Great Southern Railway for damages for the destruction of cotton seed by fire. Judgment for plaintiff the ■defendant appeals. The court should have sustained demurrers to counts 1, 2, 3 and 4 of the complaint.

Heard before Hon. H. B. Foster. Action- by G. C. Norris against the Alabama Great Southern Railway Company for delay in the delivery of goods, and for delivery in a damaged condition. Judgment for plaintiff and defendant appeals. The counts were ex delicto and not ex contractu. — W. U. T. Co. v. Krichbamn, 132 Ala. 535; Wilkerson v. Mosely, 18 Ala. 388; Berners v. Ha/rdy & Co., 48 Ala. 95; Mobile L. I. Co. v. Randle. 74 Ala. 170; Wylder v. M. & P. Hat.

Heard before Hon. A. O. Lane. Action by Walter Brown against tbe Woodward Iron Company. There was an order granting a new trial after judgment for defendant, and it appeals.

Heard before Hon. Thomas W. Coleman, Jr. Action by Bessie Bryant, pro ami, against M. A. AVhisenant and others. Judgment for defendants, and plaintiff appeals'. The suit was for damages alleged to have been- done plaintiff on account of declining to permit her to attend a public school taught in district No. 23, in Calhoun county, of which the defendants were the district trustees.

Heard before Hon. S. L. Brewer. Action by John W. Weaver by his next friend against J. D. Pepper, and others, composing the county board of education of Chambers county. Judgment for defendant and plaintiffs appeal.

Heard before Hon. Charles A. Sbnn. Action by Carrie F. Gordon against the Mayor and Aldermen of Birmingham. Judgment for plaintiff, and defendant appeals. Affirmed.

C. W. Ferguson. Action by Mattie E. Park against the Western Union Telegraph Company for failure to transmit and deliver promptly a telegraphic message. Judgment for plaintiff and defendant appeals. The court erred in overruling demurrer to plea 2. — W. TJ. T. Go. v. Way, S3 Ala. 556; W. TJ. T. Go. v. Merrill, 144 Ala. 622. Under the pleadings in this case the court was not in error in ■overruling demurrer to the plea. — W. TJ. T. Go. v. Emerson, 49 So. 821; W. TJ.

<p> Failure to Deliver Telegram. </p> <p>Pleading; Issue Proof. — Where issue is taken upon a special plea filed by defendant and the plea is proven without contradiction, the defendant becomes entitled to the affirmative charge, although the plea is defective.</p>

Heard, before Hon. P. N. Hickman. Action by W. A. Adkinson against the FairclothByrd Mercantile Company. Judgment for plaintiff, and defendant appeals. The first and third counts were the common counts.

Heard, before Hon. William Jackson. Attachment proceedings by Yielding Bros. & Co., against S. L. Weinstein, in which M. Weinstein & Sons, a copartnership, intervened as claimants. Prom a judgment for plaintiffs, claimants appeal.

Heard before Hon. R. D. Crawford, Special Judge. Action by P. N. Hickman against R. E. Byrd. Judgment for plaintiff, and defendant appeals.

<p> Assumpsit. </p> <p>1. Appeal and Error; Review; Matters Rot Shown in Record.— This court cannot review on appeal the action of the trial court in overruling demurrers to an amended plea where the amendment is not shown in the record.</p> <p>2. Sales; Rescission; Failure to Fully Perform. — In a sale of jewelry the failure of the seller to deliver a show case the very moment or day or hour the jewelry is delivered is not of itself sufficient to warrant a rescission of the sale unless a provision or stipulation to that effect is contained in the contract.</p> <p>3. Same; Action; Plea. — Where the action was assumpsit for the sale of jewelry, a plea alleging that the debt sued on was based upon an account for a lot of jewelry, and as a part of the contract, plaintiff agreed to furnish defendant a show case, said contract being in writing, and being set out in one of the counts of the amended complaint, and that relying on such agreement, defendant agreed to purchase the jewelry, and that when plaintiff shipped the same, it failed to furnish the show case and defendants thereupon returned the jewelry to plaintiff who thereafter sent a show case which defendant refused to accept, does not show a rescission of the contract nor allege facts authorizing defendants to renounce it, and hence, was subject to demurrer.</p> <p>4. Contracts; Rescission; Grounds. — A contract is made by the joint will of two parties, and can only be rescinded by their joint agreement. However, one party may so wrongfully repudiate it, as to authorize the other to renounce it, and refuse to be longer bound by it, as when such parties’ acts and conduct evidence an intent to no longer be bound.</p> <p>5. Same. — The fact that a given act or course of conduct of one party is inconsistent with the contract,'is not of itself sufficient to authorize the other party to renounce it. Such acts to authorize re' scission must be inconsistent with an intent to be longer bound by the contract. While every breach is inconsistent with the contract, yet every breach by one party does not authorize the other to renounce the contract in toto.</p>

Heard before Hou. D. W. Speake. Action by tbe Progress. Distilling Company against D. S. Brandon, in assumpsit. Judgment for plaintiff and defendant appeals. All tbe evidence appears of record and tbe judgment is so manifestly against tbe evidence that tbe court will review it and render a proper verdict. — Natve v. Gardner, 70 Ala. 443; Ward v. Albertville, 130 Ala. 599. Counsel discusses assignments of error seriatum, but without citation of authority.

Hieard before Hon. J. C. Richardson. Action by R. S. McWhorter against Lowndes County to recover certain moneys paid under a special levy for roads, etc. Judgment for defendant and plaintiff appeals. The special act to provide for the improvement of public roads of Lowndes County, is unconstitutional for the reason that there is a general statute authorizing commissioner’s courts and boards of revenue to levy a special tax for the improvement of roads.

Heard before Hon. Joi-in Pelham. Action by Robert M. Green & Sons against the Line-ville Drug Company. From a judgment for defendant, plaintiffs appeal. For a former report of this case, see 150 Ala.' 112, Avliere the contract was set out. The general issue is in form as follows: “That the allegations of the complaint are untrue.” The pleas demurred to are also set out in a. former report.

Heard before Hon. J. C. Richardson. Assumpsit by J. R. Tapia against Jesse T. Baggett. From a judgment for plaintiff, defendant appeals. The action was on a note given by the defendant Baggett to J. C. Hogue for the initial premium on an insurance policy.

Heard before Hon. John T. Lackland. Action by the Southern Bailway Company against Q. S. Adams, as Tax Collector of Marengo county, to recover money paid under protest as a special road tax for a road district in that county established under an Act passed October 10, 1908, as amended by Acts Aug. 13, 1907. Judgment for plaintiff and defendant appeals.

Heard before H]on. A. A. Evans. Action by tbe Huson Ice & Machine Works against Bland & Chambers, for breach of a contract to purchase. Judgment for the defendant and plaintiff ap-. peals. Under the contract appellees were bound to accept the machinery and pay for it according to the terms of the contract, and then sue on the breach of warranty, if there was a failure in the warranty. — Bchleischer v. Mtg.

' Appeal from Jefferson Circuit Court. Heard before Hon. A. A. Coleman. Action in assumpsit by.the Crestline Land Company against George Tribble. Judgment for plaintiff, and defendant appeals. The contract referred to in the opinion as a part of plea 4 is as follows: “State of Alabama, Jefferson County.

Heard before Hon. J. N. Ham. Action by the Standard Oil Company against J. T. Weeks and others, on account for goods sold. From a judgment granting inadequate relief plaintiff appeals.

Heard before Hon. H. A. Pearce. Action by McG-ilvray & Company against the Bank of Coffee Springs, upon a cashier’s check. Judgment for plaintiff and defendant appeals. Fraud was properly set up. — 81 Ala. 255; 81 Ala. 351. As to the question of the certified check, see 77 Ala. 168. Minor officers of a bank act under special authority. — 5 Cyc. 476. It was not necessary to protest the check. — 87 Ala. 561. As to a cashier’s check, see 121 Ala. 165; 95 Am. St. Bep. 963.

Heard before Hon. T. L. Sowell. Action by E. O. Richardson against the Olanthe Milling & Elevator Company, for commissions on the sale of flour. Judgment for defendant and plaintiff appeals.

Heard before Hon. P. N. Hickman. Action by Perryman & Co., against the Farmers’ Union, Ginning & Mfg. C’o., for the purchase price of a cottonseed huller. Judgment for defendant and plaintiff appeals.

■ Heard before Hon. C. C. Nesmith. Action by the Armour P'acking Company against the City of Birmingham to recover a license fee of $250.00, paid under protest, as part of a license to do business in said city. Judgment for plaintiff and defendant appeals. There is no question about the right of the city to impose several licenses or taxes on the same person or business. — 24 A. & E. Enc. of Law, 787.

Heard before Hon. H. A. Pearce. Action by W. W. Beall against J. W. Austin and another. Judgment for plaintiff, and defendants appeal. Thé first three counts are the common counts.

Heard before Hon. W. W. Haralson. Action by M. Hi. Evans against Bixby-Theirson Lumber Company, for breach of contract. Judgment for-plaintiff and defendant appeals. The measure of damages in the case of a breach of contract to make a loan is the difference between the agreed rate of interest and the rate required to be paid if the money is procured elsewhere. — 8 Paige on Cohtr. 2417-8; McGhee v. Wineholt, 68 Pac. 571.

Heard before Hon. Saffold Berney. Assumpsit by the Mobile Electrical Supply Company against Jacob HI. Baumhauer. From a judgment for plaintiff, defendant appeals. The action was for work and labor done on a building of defendant for the price of wiring, put in under a contract.

Heard before Hon. A. O. Lane. Assumpsit by the St. Louis Hay & Grain Company against the American Cast Iron Pipe Company, for the price of hay. Judgment for defendant and plaintiff appeals. The action was properly brought for the price, of the goods, since the goods had been delivered and the contract of the seller had been completed and nothing then remained but the payment.

Heard, before Hon. A, H. Benners. Bill by J. S. Arnold and another against W. D. Washington and others, to set aside a conveyance for fraud, and to enforce the lien. From a decree overruling demurrers to the bill, the respondents appeal.

Heard before Hou. William H. Thomas. Bill by Sandy Grace and others against George R. Bardin and others, to have a deed set aside for fraud and cancelled as a. cloud on title. Judgment for complainants and defendant appeals. The transaction here shown is voidable only. — Swift v. Fitahun, 9 Port. 79. A voidable deed is good in the hands of an innocent purchaser. — 27 Cyc. 591; Sprague v. Buell, 11 N. Y. 480.

Heard before Hon. Saffold Berney. Bill by Mary J. Martinez and others against Elizabeth D. Meyers and others, to correct certain items of account in a probate settlement, and for other purposes. Demurrer was sustained to the bill and complainants appeal. The bill was properly filed under sections 3914 and 3916, Code 1907. Independent of the statute fraud in procuring a judgment is a matter of equitable cognizant and remedial jurisprudence. — 23 Oyc. 1025.

Heard before Hon. W. W. Wi-iiteside. Bill by O. A. M. Pitts against G. A. Smith and others to declare certain deeds from J. M. Smith and wife to M. M. Smith and Rosa Smith, fraudulent and void as against complainant unless G. A. and J. M. Smith pay to complainant certain sums of money paid by him as surety for them. From a decree for complainants respondents appeal. To set aside a conveyance as to subsequent creditors, actual fraud must be shown.

Heard before Hon. William H. Thomas. Bill by Roquemore & Hall against Mitchell Brothers and others, to compel the specific performance of a contract. From a decree dismissing the bill complainant appeals.

Heard before Hon. W. H. Simpson. ' Controversy between Noel C. Leach and others, and Fred..Rosebrook. From an .order quashing a writ of possession on appeal to the chancellor and ordering that Rosebrook.be restored-to the possession, Leach and others appeal. The return of the sheriff is only prima facie evidence of its truth, and it can be overcome by satisfactory proof. — 8 A. & E. Enc. of Pr,. 447.

Heard before 1-Ion. J. W. Mabry. ' Bill by J. E. Réesé and others against' the Minona Portland Cement Company, and others, to dissolve the corporation, distribute its assets and cancel certain stock. From a decree overruling a demurrer to the' bill as amended, the defendants appeal.

Heard before Hon. W. J. Pearce. Bill by Rachel Pinkston against John R. Gilbert, to quiet title and remove a cloud. Cross bill by respondent. Judgment for complainant and respondent appeals. The principle that a defective acknowledgment of a homestead renders the deed void, and that the wife could not properly acknowledge the deed afterwards, has no application to this case.

Heard before Hon. A. H. Benners. Bill by Steiner Brothers against F. H. Kinney to quiet title to certain lands. There was a decree for complainants and respondents appeal.

<p>Appeal from Conecuh Chancery Court.</p> <p>I-Iearcl before Hon. L. D. Gardner.</p> <p>Bill by T. P. Bobbins against the Peoples Bank of Evergreen, for an accounting, and redemption from mortgage sale. Decree for complainant and respondent appeals.</p> <p>Having induced the bank for his accommodation and to obtain indulgence to surrender up to him • and cancel the original mortgage, complainant cannot now assert invalidity of the old mortgage and claim this as a reason for avoiding the payment of the renewed mortgage. — Perdue v. Brooks, 85 Ala. 459; Palmer v. Severance, 8 Ala. 53; Gee v. Bacon, 9 Ala. 699; Taps-cum v. Gipson, 129 Ala. 503; Cook v. Rome B. Co., 98 Ala. 409. Complainant cannot evade a renewal mortgage on the ground of failure of consideration or frand when he knew at the time of its renewal of the fraud and such lack of consideration, and has kept in his possession the old mortgage without offer to surrender.— Henderson v. Boyett, 126 Ala. 172.</p> <p>Under the facts in this case the president of the assignor banking company was acting as agent of the respondent in taking the renewal, the acts were in the scope of his authority and the principal is bound thereby. — Powell v. Wade, 109 Ala. 95; Williaonson v. Tyson, 105 Ala. 644. Notice to the agent was notice to the principal here. — Goodbao• v. Daniels, 88 Ala. 583; Cook v. Cook, 28 Ala. 660. No purchase for value was shown. — Reed v. Baovk of Mobile, 70 Ala. 199; Moore v. Ensley, 11 Ala. 228; Hendon v. Moms, 110 Ala. 106; 27 Cyc. 1053, et seq.; Stork v. Henderson; 30 Ala. 438. *</p>

<p>Appeal from Coffee Chancery Court.</p> <p>Heard before Hon. L. D. Gardner.</p> <p>Bill by William Cooper and others against Kenneth. McIntosh to redeem from a mortgage, in which defendant filed a cross-bill for the foreclosure of that and other mortgages. Prom a decree for plaintiffs, defendant appeals.</p> <p>The report of the register is as follows:</p> <p>“Pursuant to the decree of the court, made and entered on the 11th day of February, 1908, I have proceeded to inquire and take testimony as by law provided, and upon the taking of such testimony there was submitted before me the testimony in this cause taken on January 23, 1908, together with the exhibits thereto, consisting of mortgages, receipts, etc., bound in with the testimony, and of an account book, which is an exhibit and which accompanies the testimony. There has also been taken and submitted before me the testimony of Lizzie Fitzpatrick, Sam Wilkerson, and Joe Tames, taken prior to the reference. An agreement has been made as to attorney’s fees. In consideration of the testimony 1 have had before me three of the parties to the suit and one witness, who from the testimony appears to have no interest of any sort, and who is unimpeached as to-the veracity and good character. There is a vast variance between the amount alleged to be due upon the mortgage debt by the opposing parties herein, and that is the only matter that presents difficulties in the making of this report.</p> <p>“As to usury, the register finds no testimony as to sufficient rate and definiteness upon which to cause a serious consideration of that-phase of the case. Proof as to the admissions of the respondent and cross-complainant that he generally charged 12 1-2 per cent., that he charged the Coopers that rate, etc., in the absence of proof that the Coopers entered into a usurious contract for the payment of interest at a rate higher than 8 per , cent., fails to make out the averment of usury in any sum. In the. event that usurious interest was charged, or, rather, in the event that a rate of interest Avas charged AAdiich Avas higher than 8 per cent., there is no evidence before me on Avhich I could take out the overcharge, or surplusage of interest greater than 8 per cent., charged as a part of the mortgage debt claimed. According to the testimony of McIntosh, he bought the mortgage given by the Coopers to B. J. Stevens, paying therefor the sum of $66.75, on December 18, 1903. On December 15, 1903, he took a mortgage from them for $169.14. There is no testimony to shoAV that he made them the loan of the 15th inst., and included therein as part of the consideration the mortgage that he took up from Stevens three days later, though this Avould not be an unnatural thing to do. In the spring of 1905, he took a mortgage for $169.75, and in January, 1906, he took a mortgage for $147. The testimony of McIntosh is to the effect that he did not take up and carry forward. the balance unpaid into the neiv mortgage, but that each time he let the old mortgage stand for Avhat Avas unpaid on it, and took a neiv mortgage for the neAV advances. He also testified that the odd amount of cents came in by the old negro just telling him hoAV much he wanted, and that it did not come from interest calculation. Immediately after McIntosh had taken the 1906 mortgage, he had, according to his testimony, advanced the old negro a total of about $550, and had been paid considerably less than $200 during the time.</p> <p>“In the light of the fact that McIntosh’s accuracy .and recollection must be weighed against the accuracy and recollection of Lizzie Fitzpatrick and Tom Wilkerson, opposing parties, and- of Joe Tames, who is not a party to the suit, it is well that the manner of keeping the account book, AAdiich is in evidence, and such deductions and presumptions as may be therefrom reached in connection with the testimony, and in the light of common knowledge of- men and things, to be considered, in making up the findings of this report. The book goes from rear to front, according to the testimony of Mr. McIntosh. The items were charged as the advances were made, on the book Avhich is in evidence, and were not charged elsewhere and posted fomvard to the book. In vieAV of this, it is noteworthy that the guano for the three years is all charged in one bunch on entries near the bottom of page 194 of said account book. Another noteworthy point about the account book is the fact that in nearly or quite all of the charges for flour, of Avhich there are a. number in the whole three years’ dealings, the price remained the same, 3 cents per pound. Other items carried the same prices through the whole period or very nearly the same price; the ordinary variations of the commodity price that so frequently occur in the necessities of life, not having occurred during the three years previous, or, if they did occur, they affected the prices charged Cooper and his Avife by McIntosh very little. Then the prices are very remarkably reasonable for credit prices to customers that were paying only 8 per cent, interest. These matters are, of course, of secondary Aveight; but the register has considered them along with the other testimony, and his common knowledge in making up his findings. The physical condition of the books in which the accounts were kept was pointed out to the register by counsel for Cooper, and it is a matter not improperly to be considered.</p> <p>“This book has been kept all three of the years; the manner of its keeping having been several times referred to herein. The register takes note of the fact that, the book is unusually clean and neat for a pencil account book, and that the pencil entries appear to be such that they could have been all made with one pencil at one time; the lighter colored marks with the pencil point dry, and the dark-colored with the pencil moistened in the mouth. The account book is of soft, cheap paper, on which the impression of the pencil makes an indentation on the reverse side of the paper. Use and handling of the hook, along with the lapse of time, frequently smooths down the indentations in paper. The account for 1903, on page 196, was first made; in writing the 1904 account on page 195, the indentations made on 195 • in keeping of the 1903 account on the reverse side of the leaf which is page 196, were not rubbed or smoothed down, indicating to the register a remarkably great care and neatness. It is not unreasonable from the conditions of the account as to all guano entries, prices, freshness of the book, and condition of colors of pencil marks, similarity of prices all through, reverse indentations not smoothed down, etc., noted to a length that is also prolix, and other indications not here mentioned, but which are noteworthy, from a careful examination of the book, to conclude that the witness McIntosh may be in error in regard to the manner in which he kept the book, the time when the entries were made, etc.; and this will be and is considered by the register along with other testimony in making up this report. The admissions made to Joe Tames (who stands in this matter as without interest in the premises) by McIntosh are that the debt was between $150 and $175. The two negroes (who are interested) swear that the amount that was stated to them by McIntosh was $147, or thereabouts.. Mr. McIntosh makes the amount a great deal larger in his testimony; hut, for the reasons herein stated, I am construed to believe that he is in error in his contention. About the amount paid Tames there was no controversy. About the attorney’s fees there is an agreement in writing.</p> <p>“I beg leave to report as follows: (1) I find no usury in the mortgage debt. (2) I find the mortgage debt to be as follows:</p> <p>Amount due Sept. 1, 1906___________$175 00</p> <p>Interest to June 29, 1908___________ 25 65</p> <p>Amount paid Tames_________________ 12 00</p> <p>Interest on same___________________ 2 06</p> <p>Advertising fee____________________ 5 00</p> <p>Total________________________$219 71</p> <p>“I report the attorney’s fee for respondent to be $75.”</p> <p>The court erred in overruling the exceptions filed to the register’s report. — Gresham, v. Ware, 79 Ala. 192; Noble v. GilUam, 136 Ala. 618; Pollard’s Case, 139 Ala. 184. The burden was upon the respondent to show payment and to show any contentions growing out of the consideration of the note, and the same should have been pleaded. — Tatum v. Yohn, 130 Ala. 575; Moore v. Barker, 118 Ala. 563; Pearce v. Walker, 103 Ala. 250; Morion v. Foster, 83 Ala. 213; Bray v. Corner, 82 Ala. 183. The court erred in rendering a decree directing a reference before settling the equity between the parties.— May v. Folsom, 113 Ala. 198.</p>

<p>Appeal from Butler Chancery Court.</p> <p>Heard before Hon. L. D. Gardner.</p> <p>Petition by Dora C. Royal against S. H. Royall, for the possession of the child upon voluntary separation. From an order refusing to dissolve the temporary injunction against interference with petitioner’s possession of the child, respondent appeals.</p> <p>Counsel discuss the statute, and insist that there Avas no voluntary separation shown and no divorce asked or grounds alleged therefor, and that the petition should be dismissed.</p> <p>The petition is clearly. Avithin the statute. (Secs. 4503-4, Code 1907.) And if defective, the motion to dissolve for Avant of equity treats all amendable defects as cured. — Sohlose v. ¡Steiner, 100 Ala. 148. There is no inflexible mile requiring the dissolution of temporary injunction on the coming in of the sworn denials of the answer, and under the facts in this case the court properly awarded the custody of the child to the mother, and in refusing to dissolve the injunction. — Harrison v. Yerhy, 87 Ála. 185; Whitley v. Dunham L. Go., 89 Ala. 497. A voluntary separation was shown. — Anonymous, 55 Ala. 431. .</p>

Heard before Hon. A. H. Benners. Bill by J. Hudson Miles and others against Margaret Townsend as administratrix, and others, for accounting and discovery, and a removal of the estate from the probate to the chancery court. From a decree overruling demurrers to the bill, respondents appeal. The administrator had filed her account for final settlement, the day had been set for the hearing and the bill will not lie. — Warring v. Lewis, 53 Ala. 615; Gamble’s Oase, 54 Ala. 432;.

Heard before Hon. Thomas H. Smith. Bill by Samuel Brown against Lulu B. Powers and others to quiet title to land. From a decree granting a partial relief, complainant appeals. The court erred in overruling demurrer to the cross bill. — Section 3118, Code 1907; Hatchett v. Blanton, 72 Ala. 437. The court erred in the decree rendered in that it failed to grant the full relief to which complainant was entitled.

<p> Bill to Quiet Title. </p> <p>1. Assignment; Benefit of Creditors; Title Vested im, Grantee.— A general assignment of all a debtor’s property to pay debts generally vests in the grantee the entire indefeasible title, leaving the grantor no title legal or equitable.</p> <p>2. Trusts; Resulting Trust in Surplus of Assignment for Benefit of Creditors; Enforcement; Laches. — Where the recitals of an assignment for the benefit of creditors do not negative the creation of a resulting trust in the surplus above the sum necessary to satisfy the debts, or in the unconverted corpus of the estate, the law raises an implied trust in favor of the assignor; but this right is no more than an equity which must be asserted in due time to avoid the imputation of laches.</p> <p>3. Same; Laches. — The failure of an assignor for nearly forty years to assert a resulting trust in lands embraced in an assignment for the benefit of creditors, without excuse, during which time innocent purchasers interested adversely to such trust have invested considerable money in the lands and executed warranties of title thereto, as shown by the public records, raises the conclusive presumption that the trust has become extinguished.</p> <p>4. Same; Enforcement; Laches. — Where the assignor and his successors in right have not been in possession of lands not used in extinguishing debts, but conveyed under a general assignment for that purpose, their equity could not be enforced after forty years, irrespective of whether complainant and his predecessors in bona fide claim of title were in actual possession in whole or in part.</p> <p>5. Equity; Laches; Right to Land; Enforcement. — An equitable right to land not accompanied by possession presupposes title in another, and in order to obviate the rule as to laches appropriate and timely appeal to equity to enforce such right is essential.</p> <p>6. Same; Extinguishment; Presumption. — The presumption of ex-tinguishment of an equity in land arising from laches in asserting the same does not depend on the action or inaction of the bona fide claimant of the title itself, unless such action or inaction is infected with fraud or deception.</p> <p>7. Same; Laches; Grounds. — Laches rests largely on acquiesence which presupposes notice of a status opposed to the title or equity sought to be enforced.</p>

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. William Jackson.</p> <p>Bill by McGrew & Sons against Lettitia Earnest and •others to declare and enforce a material-man’s lien. From a decree for respondents other than Crotwell & Kent, the complainants appeal.</p>

. Heard before Hon. John H. Disque. Bill by J. R. Brown against W. P. Shahan to rescind :sale of land on account of misrepresentation. Decree .for complainant and respondent appeals.

Heard before Hon. Thomas H. Smith. Bill by the Lott-Blackshear Commission Company against G. L. Albritton and another to foreclose mortgage and to appoint a receiver. Decree for complainants and respondents appeal. The court erred in appointing a receiver. — 27 Cyc. 1622; Hayes v. Jasper L. Go., 147 Ala. 840; Meyer v. Thomas, 181 Ala. Ill; Etowah M. Go. v. Wills V. M. & M. Go., 106 Ala. 498; B. I. W. Go. v. Foster, 54 Ala. 622.

<p>Appeal from Jefferson Chancery C'onrt.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by R. W. Francis and others against the Jefferson County Savings Bank. From a decree sustaining demurrers to the amended bill, complainants appeal.</p> <p>The original bill and answer is set out in the former opinion in this case, which will be found reported in 115 Ala. 317, 23 South. 48, reference to which is here made. The bill was afterwards amended by striking out sections 2, 3, 4, and 5, and inserting in lieu thereof the 'following paragraphs, numbered 2, 3, 4, and 5, respectively :</p> <p>“(2) That prior to the 15th of July, 1887, Excelsior Foundry & Machine Company was a corporation under the laws of Alabama, with a capital stock of $10,000, 400 shares, at the par value of $25 each, and on that day Carter owned or controlled 320 shares, and complainants owned jointly 80 shares, and that at that time the corporation had ceased to do business, or carry on or to exercise any of its corporate functions, and was practically dead, and that its entire assets consisted of the property herein described.</p> <p>“(3) That on the 28th day of May, 1886, the Excelsior Foundry & Machine Company, contracted with the Avondale Land Company for the following described land: (Here follows description) — and received a bond from the said Avondale Land Company, for a conveyance of said lot, and afterwards erected valuable improvements on said lot, and placed thereon said machinery and tools for carrying on its said business.</p> <p>“(4) That said Excelsior Foundry & Machine Company, prior to July 15, 1887, had several stockholders, a board of directors, and a president, and carried on its business until some time prior to July 15, 1887, when if ceased to do business.</p> <p>“(5) That prior to July 15, 1887, Carter had secured control and ownership of four-fifths of the capital stock of the Excelsior Foundry & Machine Company, and there was no other stock of said company existing, except the 80 shares owned by complainant; that the board of directors had ceased to perform any of their duties or functions, and the said Carter, desiring to secure the whole of the assets and property of said company for his own use, on said date paid to the Avondale Land Company, the sum of $350 balance due as purchase money for said lot, and procured a deed to be made to himself for the said lot, and on the same day, in order to secure advances that had been made or agreed to be made him by the Jefferson County Savings Bank to the extent of $500, executed jointly with his wife a mortgage on said lot of land, with its improvements, to the Jefferson County Savings Bank; that complainants never consented to or in any way ratified any of the conveyances mentioned, nor did they have any notice or knowledge thereof until long after the same was made; that no meeting of the stockholders or directors was ever held to authorize or ratify any of the conveyances, and the said Jefferson County Savings Bank took said mortgage with full notice or knowledge of the manner in which said party had wrongfully acquired the title to the property, and that complainants had an equitable claim thereto as stockholders of the Excelsior Foundry & Machine Company.</p> <p>“It is further alleged that the value and improvements of the property was $10,000. The demurrers take the point that the bill is without equity; that it is not shown that the complainants were entitled to any relief against the defendants; that it appears from the bill that the complainants sne as stockholders of the Excel■sior Foundry & Machine Company, a body corporate, for and on behalf of the said corporation, and yet the bill fails to show that before filing the bill complainants took any step or proceedings to have the corporation act on its own behalf, and fails to show any excuse for a failure to make the Excelsior Foundry & Machine Company, a party; for failure to join Carter as a party; and because the bill as amended shows that complainants have no equity or interest in the lands described. Respondents also answered, and the answer incorporated certain demurrers not necessary to be here set out.</p> <p>A dissolution of a private corporation charged with no public duties can be effected as shown here. — M. & P. Line v. Waggontner, 71 Ala. 581; 5 Thomp. on Ciorp., sec. 6681; Savage v. Walsh, 26 Ala. 619; McElroy v. Gadsden L. & I. Go., 126 Ala. 193; Noble v. Gadsden L. & I. Go., 133 Ala. '255; Wolf v. Underwood, 91 Ala. 527; G. L. Go. v. Sullivan, 44 So. 644. In this condition of the defunct corporation, the rights of the three stockholders was that ■of partners or joint owners. — Mason v. Peioabic M. Go., 133 U. S. 50. In this relation Francis & Storrs had .a. right to proceedings against Carter, or any person acquiring the rights of Carter with knowledge of their interest. — Authorities supra; 5 Thom, on Corp., sec. ■6747. The right existed in the minority stockholders under the accepted rule that no director or executive ■officer of a corporation can make self serving conveyances of the corporate property. — DeÉardelaben v. Bessemer L. & I. Go., 140 Ala. 621; 124 Ga. 165; 104 Am. St. Rep. 835; 143 Fed. 478. If the authority of Enslen to sign the agreement be important it is abundantly established by his presidency of the bank, and his active management of its affairs. — Merchmvbs’ Bank v. Acme L. & M. Go., 49 So. 782; Richards v. Shepherd, 49 So. 251; Ala. Nab. Bank v. O’Neal, 128 Ala. 192.</p> <p>The amendments did not cure the defects in the original MIL — 115 Alá. 323. The proof is materially variant from the averment. All the stockholders are not represented ' in the bill which is requisite to a hill of this character. — Ross v. Am. B. Go., 43 So. 817; McElroy v. Gadsden L. & I. Go., 126 Ala. 184.</p>

<p> Bill to Quiet Title. </p> <p>1. Quieting Title; Relief; Possession of Defendant. — A bill alleging that respondent claimed certain land and was in possession thereof, and that complainant is the owner in fee and praying for the enforcement of his rights, should be dismissed because complainant has a plain adequate remedy at law.</p> <p>2. Same; Preventing Multiplicity of Suits. — Where the proper action to recover land is .ejectment the mere fact that all the defendants cannot be joined in one suit, and that a multiplicity of suits will result cannot give equity jurisdiction to quiet title.</p> <p>3. Discovery; Relief in Equity; Grounds. — The fact that the claimant of certain lands is ignorant of the territorial extent of the claim of one in possession or the source of his title, cannot give jurisdiction to the chancery court, to quiet title to such land on the theory that the bill seeks discovery.</p> <p>4. Ejectment; Inclusion of Land; Complaint. — -Where a claimant of lands is in doubt as to the territorial extent of the claim of one in possession he may include in his complaint in ejectment all possible territory.</p> <p>5. Landlord and Tenant; Recovery of Land; Title; Estoppel to Assert Outstanding Title. — Before surrendering possession to the landlord, the tenants are estopped from asserting an outstanding title which has been granted them.</p>

Heard before Hon. A. H. Bennees. Bill by the Maryland Casualty Company against the SI oss-Sheffield Steel & Iron Company for a discovery, and on such discovery for an accounting on its liability insurance contract with respondent corporation. From a decree overruling demurrers to the bill respondents appeal.

Heard before Hon. W. H. Simpson. Bill by Eliza A. Orendorff against W. R. Suit and others, to foreclose a mortgage. Decree for respondent and complainant appeals. The amended answer and cross hill denies the execution of the mortgage and should have been sworn to. — Noble v. Gilliam, 136 Ala. 618.

Heard before Hon. William; Jackson. Bill by the Crotwell Brothers Lumber Company against Tom. F. Robinson and others to enforce a material-man’s lien. Judgment for complainants and respondents appeal. The allegation of the bill and tbe statement filed as to the time of its filing were subject to demurrer. — Kelly v. Kellog, 17 111. 477; Beemont v. Trenton Go., 32 N. J. L. 513; Phillips ■on Mechanics’ Liens, sec. 27.

<p>Appeal from Mobile Law and Equity Court.</p> <p>Heard before Hon. Saffold Berney.</p> <p>Bill by E. B. Kirkbride as administrator of the estate of Mary Ann Kelly, deceased, and another, against William P. Kelly and others, to remove the administration from the probate to the chancery court, and for other purposes. Decree sustaining demurrer to the bill, and complainants appeal.</p> <p>Where no steps have been taken for final settlement of an estate it may be removed from the probate to the chancery court by an heir, legatee or devisee without assigning any special reasons. — St. John, et al. v. St. John, 150 Ala. 237; 5 Mayf. Dig. 241. An administrator of an estate has the right to go into a court of equity to subject the interest of an heir or distributee to a payment of a debt which such heir or distributee owes the estate, and such claim may be enforced in prioritv to the claims of the creditors of such heir or distributee. — Street & Go. v. McCurdy, 104 Ala. 493; 5 Mayf. 236.</p> <p>There was a misjoinder of parties. — Chandler v. Winn, 85 Ala 309. No relation of privity existed between the parties complainant. — Teague v. Corbett, 57 Ala. 543. The administrator can exercise no authority over lands of his decedent except as directed by the statute. — Martin v. Williams, 18 Ala. 190; Chighizola v. LeBaron, 21 Ala. 406; Steele v. Steele, 65 Ala. 455”. Until exercised; or steps taken looking to its exercise, the right of the heir is not inturrupted. — Lems v. Butler, 8 Port. 380; Masterson v. Girard, 10 Ala. 60; Branch Bank v. Fry, 23 Ala. 770; Anderson v. McGowan, 42 Ala.' 280.</p>

Apbal from Morgan Chancery Court. Heard before Hon. W. H. Simpson. Bill by the Jones Cotton Company against the Southern Railway Company and the Gulf Compress Company, for a discovery and accounting, and incidentally for damages. Decree for complainants and respondents appeal. See the case of Gulf Compress Co. et al. v. Jones Cotton Co., 157 Ala. 32; 47 So. 251.

Heard before Hon. A. H. Benners. Bill by Rosenheim & Sons and others against Ollie Lacy and others to set aside the sale of partnership property and subject the property to the satisfaction of the partnership creditors. From a decree dismissing the bill on account of the failure of the complainant to pay the costs adjudged against the trustee in bankruptcy in a similar suit, complainants appeal.

<p> Bill to Set Aside Judgment <md Enjoin its Enforcement. </p> <p>1. Judgment; Vacating; Sufficiency of Bill'. — A bill to set aside a judgment and enjoin its enforcement pending suit which alleges that the judgment was obtained by fraud in that the cause was continued for the term by agreement of the parties, and that after plaintiff and his attorney left court, the defendant by fraudulent representation induced the court to set aside the order of continuance and to proceed with trial thus by fraud procuring the judgment, was sufficient against demurrer to entitle complainant to have the judgment set aside and its enforcement enjoined pending suit.</p> <p>2. Same; Existence of Other Remedies.- — Equity has original jurisdiction to vacate a judgment obtained by fraud and restrain its enforcement pending suit, and is not deprived of such jurisdiction by the provisions of section 5372, Code 1907, since the remedy given in the code is not exclusive but is cumulative and concurrent with that of equity.</p> <p>3. Same. — The remedy provided that section 5372, Code 1907, is not a continuation of the original suit but is a new suit to set aside the judgment.</p> <p>4. Same; Necessity for Showing Want of Negligence. — While a party who seeks relief in equity against a judgment obtained in a court of law by fraud, etc., must show that he was without fault or negligence in the matter, and that he was ignorant of the fraud not only at the time the judgment was rendered but also during the term of its rendition when a court could have set aside the judgment, or that he was prevented from making his motion for a new trial by accident, fraud, etc., unmixed with negligence on his part, yet he is not required to acquit himself of negligence in failing to apply to a court of law for relief under section 5372, Code 1907.</p> <p>5. Equity; Jurisdiction; Effect of Statute. — The original jurisdiction of a court of equity is not affected by a statute conferring similar jurisdiction upon courts of law unless the statute so provides, the remedy being considered concurrent and cumulative.</p> <p>6. Same; Motion to Dismiss; Demurrer.- — On motion to dismiss the bill for want of equity and on demurrer to the bill, the averments of the bill are to be taken as true.</p>

<p> Bill to Cancel Deed for Fraud. </p> <p>1. Equity; Subject of Relief; Fraud. — Equity will relieve against fraud ordinarily, but does not relieve against every neglect of a moral or social duty.</p> <p>2. Same; Admissions by Demurrer. — The averments of a bill are taken as true upon demurrer.</p> <p>3. Fraud; Acts Constituting. — Where one with a view to influencing the conduct of another wilfully leads him into a false belief and the other acts accordingly to his injury, actionable fraud is committed.</p> <p>4. Cancellation of Instrument; Nature of Remedy. — The remedy of cancellation of instrument lies only in equity, although the facts stated as a basis for relief will often afford grounds for another action at law.</p> <p>5. Same; Subject of Relief; Cloud Upon Title. — In a proper case an instrument will be cancelled, though void, if it casts a cloud upon title to land.</p> <p>6. Same; Cloud Upon Title; Possession. — One in the possession of land is not required first to test his title in an action at law before filing a bill to cancel an instrument as a cloud.</p> <p>7. Same; Deeds Obtained Through Fraud; Right to Relief.— Where the respondent intentionally deceived complainant by promises not intended to be kept, and pursuant to respondent’s intention to defraud complainant, induced complainant to .execute a deed which he thought to be a mortgage, and respondent afterwards mortgaged the land for a pre-existing debt to his co-respondent who purchased under a foreclosure, and demanded possession and complainant offered to do equity by paying any charge upon the land, the lifting of which was necessary to a relief, the complainant was entitled to a cancellation of the several instruments.</p> <p>8. Mortgages; Foreclosure; Bona fide Purchaser. — Where a mortgage was given to secure a pre-existing debt and there was no valuable consideration for the mortgage, the mortgagee purchasing at a foreclosure sale was not a bona fide purchaser.</p>

Heard before Hon. A. H. Benners. Bill by John T. Creel and others and George W. Creel as administrator to enjoin an administrator’s sale of land and to remove tbe estate from tbe probate to tbe chancery court. Prom a decree overruling demurrer to tbe bill the respondents appeal. Tbe bill has no equity because there was a failure to offer to do equity. —Southern Ry. Co. v. Hood, 126 Ala. 318; 1st Nat.

Heard before Hon. W. W. Haralson. Ejectment by James L. Coulson and others against Felix Scott and others. Judgment for defendants, and plaintiffs appeal. The chain of title relied on will be found stated in a former report of this case in 156 Ala. 450, 47 South. 60. Upon this trial the facts were the same, with the additional facts set out in the opinion.

Heard before Hon. H. A. Pearce. Ejjectment by Anna Dickinson and others against G. M. Champion and others. Judgment for defendants and plaintiffs appeal. The law governing this case is found in the Code of 1896, sections 2069, 2071, 2091, 2097, 2098 and 2100; O’Bear v. Jackson, 124 Ala. 298.

Heard before Hon. John Pelham. Action by Pbillip S. Moxon against W. T. Owen and others. Judgment for plaintff, and defendants appeal.

Marengo Circuit Court. Heard before Hon. John T. Lackland. Ejectment by Jones L. Blakeney against S'. B. Du-Bose. Judgment for defendant and plaintiff appeals.

Heard before Hou. J. C. Richardson. Action by A. C. Cox against J. S. Kern. There was a judgment' for plaintiff, and defendant appeals. The facts sufficiently appear in the opinion of the court. The following charges were refused to the defendant: “(A) The court charges the jury that, if they believe from the evidence that Cox sold Hindman a mule, then you must find for the defendant, although you may believe from the evidence that Hind-man has never paid Cox for the mule.

Heard before Hon. William H. Thomas. Action by J. M. McCool against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. The action was detinue for certain articles shipped •over the Louisville & Nashville line, and alleged to be in their freight depot at Montgomery.

Heard before Hon. B. H. Lewis. Trial of the right of property between J. O. Parker,, an execution creditor and J. L. Knox & Company, claimant of property levied on, as the transferee of the mortgage. Judgment for execution creditor and claimant appeals. Counsel discuss the errors assigned and insist that the court erred in giving the affirmative charge, but cite no authority in support of their contention.

Heard before Hon. A. O. Lane. Petition by the State, on relation of J. N. Sigsby and another, in the nature of qou warranto, against the City of Birmingham. From a judgment for respondents, petitioners appeal.

Heard before Hon. D. W. Speake. F. E. St. Johns applied for a writ of certiorari to bring up for review and to quash an order of the probate court setting aside and annulling former orders made in that court calling an election and declaring the result against the sale of liquor in Cullman county.

<p> Certiorari. </p> <p>1. Justices of the Peace; Appointments; Statutes. — Acts 1884-5, p. -402, is a local law fixing the name of the precincts and the justices of -the peace thereof, and is not repealed by subsequent codes, and the number of precincts and boundaries can only be changed by the legislature notwithstanding sections 339, 340, 1106, 1107 and 4637, Code 1907, empowers county commissioners to establish election precincts and provides for justices in each precinct, and authorizing the •governing board of each city to create new wards and divide the same into voting precincts.</p> <p>2. Same; Judgments. — Where under the law there was no office •of justice of the peace in and for the ward Or precinct of a city, a justice purporting to act as such for such ward was not even a de facto officer, and his judgments were void.</p> <p>3. Oei-tiorari; Void Judgment; Want of Jurisdiction. — Certiorari is the proper remedy to review and quash judgments rendered by one purporting to act as a justice of the peace where he was not even a de facto justice.</p>

Heard before Hon. C. C. NeSmith. Action by Stevens & Kerr against the city of Birmingham to recover the value of' intoxicating liquors seized by the city and destroyed. Judgment for plaintiff and defendant appeals. The city had the authority to pass the ordinance providing for the seizure and destruction of liquor kept for unlawful purposes. — 17 A. & E. Enc. of Law, 219; 29 Conn. 488; 58 Vt. 163; McQuillman on Munic. Ord. sec. 14; Sec. 1251, Code 1907.

Heard before Hon. Thomas W. Weort. j. A. Hartsell and another recovered judgment against J. W. Bibb, and had execution issued thereon and levied upon certain mules as the property of the defendant in execution, and J. W. Wilhite interposed his claim as mortgagee, and on trial of the right of property there was judgment for the claimant, and plaintiff appeals.

Original petition in the Supreme Court. Petition for mandamus by the state on the relation of William.P. Reynolds directed to Hon. Samuel L. Wen's-er as judge to compel him to admit relator to bail, pending an appeal to the Supreme court.