Volume 168 — Alabama Reports

Heard before Hou. TV. TV. Haralson. Will West was charged and convicted of grand larcenY in that he stole eleven cow-hides of a stated value, the property of the N. C. & St. L. Railway, and he appeals. Section 6876, Code 3907, is violative of section 6 of the Constitution 1901. The court should have granted a change of venue.— Seams’ Case, 84 Ala. 410. The acts of Paul West were not admissible. — Me Anally’s Case, 74 Ala. 9.

Heard before Hon. Armstead Brown. Clevis Bailey and others were convicted of burglary and grand larceny, and they appeal.

Heard before Hon. W. W. Haralson. Roy Steele was convicted of larceny and lie appeals The charges refused were properly refused.— Troup v. The State, 49 So. 382; Griffin, v. The State, 50 So. 963.

Heard before Hon. John T. Lackland. Wyley Huckabee was convicted of larceny, and he appeals.

Heard, before Hon. .Thomas W. Coleman, Je. Ervin Pope ivas convicted of murder in tbe first degree, and he appeals. Pope was charged with the murder of James MeClerldn, whose body was found early on the morning of the 20th, near a public road in Oxford, with head battered and crushed. Bloody stones and sticks were found thereabout.

Heard before Hon. Alto V. Lee. Jact Whitmore Avas conAdcted of manslaughter in the first degree, and he appeals. In drawing the jury the court followed the usual method employed in capital cases before the adoption of Avliat is known as the “jury law,” and the orders made and the drawing Avas conducted accordingly.

Heard before Hon. B. M. Miller. Toilev Mason was convicted of murder in the first degree, and he appeals.

Heard before Hon. W. W. Pearson. John Davis was convicted of murder in the first degree, and he appeals. It appears from the transcript that in drawing the venire for the case of State v. Walter Harrison the following were drawn as jurors and placed upon said venire : W. R. De Bardalaben, O. H. Williams, J. R. Roy, L. T. Norris, S. M. Peevey, J. H. Jones, and T. R. Collier.

Heard before Hou. C. P. Almon. William H. Twitty was convicted of murder, and he appeals. The defendant was charged with the killing of John Murphy.

• Appeal from Gadsden City Court. Heard before Hon. Alto V. Lee. Kebe McMahan- was convicted of murder in the first degree and he appeals. One defense was that the deceased killed himself under a compact with the defendant, and the other defense was that the defendant had nothing to do with it. The evidence of John Bates should have been excluded.

<p>Appeal from Choctaw Circuit Court.</p> <p>Heard before Hon.- John T. Lackland.</p> <p>Mollie Bush was convicted of murder and she appeals.</p> <p>No brief reached the Reporter.</p>

LI card before ITou. A. H. Alston. John Kirklin was convicted of murder, and lie appeals. Kirklin was indicted for killing Tom Brasher. The evidence excepted to is' sufficiently set out in the opinion.

Heard before Hon. John T. Lackland. John Thomas Witherspoon ivas convicted of murder, and he appeals.

Heard before Hon. A. H. Alston. John Green was convicted of manslaughter and he appeals. See in this connection also 160 Ala. 1; 49 So. 676. The court erred in admittting the confessions as they are prima facie involuntary and inadmissible. — Mg Alpine v. The State, 117 Ala. 92; Bradford v; The State, 104 Ala. 70; Wilson r. The State, 84 Ala. 426; Banks v. The State, 84 Ala. 431. Counsel discusses other assignments of error, but without citation of authority.

Heard before Hon. John T. Lackland. From a conviction for violating the prohibition law, Jasper Treadwell appeals. The facts sufficiently appear in the opinion of the court. The solicitor in his argument said: “The proof in this case tends to show that whisky is being dispensed from the depot and in the shadow of your county capítol.” The court charged the jury orally as follows: “That this party went to the shop and delivered it as porter.

<p> Violating Prohibition Law. </p> <p>1. Intoxicating Liquors; Unlancful Sale; Evidence. — The evidence in this case stated and examined and held to show a violation of section 73G3, Code 1907, in aiding in an unlawful sale of intoxicants.</p> <p>2. Appeal and Error; Harmless Error; Evidence. — Where a defendant’s own evidence establishes his guilt any error in rulings on other evidence is harmless.</p> <p>3. Same; Instructions. — Where defendant’s own evidence establishes his guilt, any error in refusing requested instructions is harmless.</p>

<p>Appeal from Andalusia City Court.</p> <p>Heard before Hon. Robert I-I. Jones.</p> <p>Harvey Mitcliell was convicted of carrying concealed weapons and he appeals.</p> <p>No brief came to the Reporter.</p>

Heard before Hon. Robert H. Jones. Lee Green was convicted of carrying a pistol concealed about his person, and he appeals.

Heard before Hon. Edward S. Lyman. J. W. Jones was convicted of assault and battery in the county court to which he had been bound over by a justice of the peace before whom the affidavit was issued and to whom the wárrant was made returnable, and he appeals. Counsel discuss a good many matters not mentioned in the opinion and cite authorities in support thereof, but they do not discuss the matters decided.

Heard before Hon. Tancred Betts. William Sanderson was convicted of assault and battery, and he appeals.

Heard before Hon. Thomas W. Coleman, Jr. Robert Reid was convicted of bigamy and he appeals.

Heard before Hon. C. P. Almon. Hez- Palmer and Jennie Langston were convicted of living in adultery, and they appeal.

Heard before Hon. Ti-xomas W. Wert. Willis Turney was convicted of using abusive, insulting, or obscene language in the presence or hearing of a female, and he appeals. The evidence for the state tended to show that on Christmas morning Mrs. Sharp was in her lot, across the road from her home, and that the defendant came into the lot and asked if Mr. Sharp ivas at home, and was told that he was not.

Heard before Hon. Alto V. Lee. Beecher Thrasher was convicted of playing a game of cards and dice at a public place, and he appeals. The following charges were refused to the defendant: (1) The affirmative charge. (2) “The court charges tbe jury that there is no conflict in this evidence that the playing or betting at a game of dice by the defendant took place in the defendant’s private bedroom' in the residence of his father on Saturday night.

<p>Appeal from Bullock Circuit Court.</p> <p>Heard before Hou. A. A. Evans.</p> <p>John C. Bradberry ivas convicted of an offense and be appeals, and endeavors to establish a bill of exceptions.</p>

Heard before Hon. Armstead Brown. Fib Arrington was convicted of trespass after warning, and he appeals. The evidence for the state tended to show that one O. E. Johns was a rider or overseer, whose duty it was to superintend the work of the laborers and renters on the plantation of W. B. Bell, and that he rented the premises in question from the agent of Mr. Arrington, signing the rent notes in his own name, and saying nothing about Mr. Bell at the time of the renting.

Heard before Hon. J. N. Ham. Etmma Flowers was convicted of allowing a cow to run at large, and she appeals. In its oral charge the court read to the jury section 7813, Code 1907, and further charged the jury that if the cows or yearlings in question belonged to defendant or were under her control, and they believed the same beyond a reasonable doubt, and that she knowingly permitted said cattle to run at large off of defendant’s premises, she was guilty.

Appear from Jefferson Criminal Court. Heard before Hon. S. L. Weaver. R. A. Wlialey was convicted of buying or receiving a transfer issued by a street car company for the purpose of using it as fare, and he appeals. The law is clearly unconstitutional as a delegation of legislative authority to the officers of a street railway corporation. As to what a fact is see. — Huber v. Guggenheimer, 89 Fed. 598; Woodfill v. Patton, 40 Am. Rep. 269;. 3 Words & Phr. 2638.

Heard before Hon. D. W. Speake. Petition by W. T. L. Cofer for habeas corpus to be discharged from a judgment of conviction in the county court of Cullman county. Upon the hearing the judge dismissed the petition and the petitioner appeals.

Heard before Hon. M. Sollie. Mandamus by tbe state on the relation of the city of Girard against H. T. Benton, judge of probate, and the commissioners court to compel them to repair and maintain a certain bridge in the city of Girard, and to do all things necessary to restore it to a condition of safety. From an order granting an alternate writ of mandamus, respondents appeal.

Original petition in the Supreme Court. Application by Alfred Smith for mandamus, the writ to be directed to Hon. C. W. Ferguson, Judge of the Birmingham City Court.

Original petition in the Supreme Court. Petition of J. W. Jones for mandamus to the judge of the county court of Shelby County to set aside and vacate orders made by him requiring the petitioner to pay alimony pendente lite and attorney’s fees.

<p> Mandamus. </p> <p>1. Detinue; Execution of Writ; Alternate Steps. — Where a writ of distringas on a judgment for plaintiff in detinue directed, the sheriff to attach the specific property, or, if the defendant had secreted or removed it, to distrain all of his property until delivery of the specific property, or if that could not be done, to make its value out of defendant’s estate, it could be executed only in one of the three modes specified and not in any two of them.</p> <p>2. Same; Presumption of Regularity. — Where the writ of distringas directed the sheriff to attach the property recovered, or if removed, to distrain all of defendant’s property until delivery of the property recovered, or if that could not be done to make the value of the property out of defendant’s estate, in the absence of a contrary showing, the sheriff will be presumed to have done his duty and on the execution of the distringas in the third mode directed, it will be presumed that the sheriff could not execute the writ in the other two modes.</p> <p>3. Same; Right of Plaintiff; Other Remedies. — A sheriff’s return on a writ of distringas showing execution by making the alternate value of the property was not so conclusive on the plaintiff as to prevent her from obtaining the property under other appropriate writs subsequently issued</p> <p>4. Same. — A plaintiff in detinue is entitled to insist on having the specific property if obtainable and is not required to accept the alternate value of the property recovered, on a tender made by the defendant or the sheriff; but he cannot have both the property and its alternate value.</p> <p>5. Same. — Where a plaintiff elects not to take the alternate value of the property recovered in detinue which the sheriff has made out of the estate of the defendant, her remedy was to request an alias distringas as authorized by section 3786, Code 1907; the sheriff having already executed and returned the writ it was functus officio and he could not be compelled by mandamus to re-execute it.</p>

<p>Appeal from Bibb Circuit Court.</p> <p>Heard before Hon. B. M. Miller.</p> <p>Certiorari by H. C. McKinney and others to bring up for review the acts and doings of the Commissioners’ Court in proceedings to establish a stock law district. From a judgment denying the relief prayed by the certiorari the petitioner appeals.</p> <p>The court erred in denying the petition. The proper order was either to quash the judgment'or to affirm it. — hide. Pub. Go. v. Am. Pr. Assn., 102 Ala. 475. Certiorari is the proper remedy to review the acts of the Commissioner’s Court. — Gomm. Gt. v. Johnson, 145 Ala. 553. The order calling the second election was void on its face. — Commissioners v. Johnson, supra,; Acts 1903, p. 431.</p> <p>It is not essential that the record show that the signers resided in the district and within the corporate limits of the county. — Com. Gt. v. Wilborn, 46 So. 585. Administrative matters in holding ah election cannot be reviewed by certiorari as here attempted. — Camden v. Bloch, 65 Ala. 236. The appeal should be dismissed. The judgment should be dismissed because it is a joint judgment and the appeal should have been taken by all the parties, instead of by one. — Moore v. McGuire, 26 Ala. 461; Vaughan v. Higgins. 68 Ala. 547. McKinney cannot assign errors for the other defendant.- — Barker v. Gallaban, 5 Ala. 710.</p>

Heard before Hon. J. W. Mabry.' Sam Rosenberg was convicted of violating an ordinance of the city of Selma and he appeals.

Heard before Hon. Henry B. Foster. Common law ejectment by the Alabama State Land Company against W. S. Matthews. Judgment for defendant and plaintiff appeals.

Heard before Hon. H. A. Pearce. Action by Ida McCreary and others in ejectment against the Jackson Lumber Company. Judgment for defendant and plaintiffs appeal. The court erred in admitting the Seagler deed, as it was not executed according to law. (Sec. 1266, Code 1852) and was deficient in description. — Baron v. Baron, 122 Ala. 204; Goodwin v. Foreman, 114 Ala. 489; Webb v. FAyton L. Co., 105 Ala. 471, and cases cited.

Heard before Hon. Samuel B. Browne. Unlawful detainer by Henry C'lay Atchison ag-ainst Thomas Gilchrist. Prom a judgment for plaintiff, defendant appeals.' This cause was commenced in the justice court, and upon proper application and affidavit was removed to the circuit court, where trial of title was had under the statute. No brief came to the Reporter. No brief came to the Reporter.

Heard before Hon. C. P. Almon. Motion by A. F. McClesky, as sheriff, to settle claims of E. L. Bickley, W. H. Gillespie, and others to funds in the hands of the movant. From a judgment sustaining a motion to strike the claim of said Gillespie, he appeals.

Heard before Hon. J. C. Richardson. The board of revenue of Lowndes county audited a claim for taxes illegally paid and directed the probate judge to issue a warrant for the same to Joseph Morgan. The probate judge issued the warrant, and on presentation to the county treasurer, Robert L. Goldsmith, he declined to pay it. Norwood then moved for a summary judgment against the treasurer and his official bond because of such failure.

Heard before Hon. F. M. T. Tankersly. Habeas corpus by Gomez Bennett against Lee Bradley and others for the possession of petitioner’s infant child. Judgment awarding petitioner custody of the child and the respondents appeal.

Heard before Hon. A. D. Sayre. Action by the First National Bank of Gadsden against Steiner, Lobman & Frank and the individuals composing the partnership. Judgment for defendants, and plaintiff appeals. The contract sued on is in the following language: “State of Alabama, County of Etowah.

Heard before Hon. A. O. Lane. Action by the Cleveland Crane & Car Company against the American Cast Iron Pipe Company for the price of six cranes. Judgment for defendant, and plaintiff appeals. The contract for the cranes, leaving out the formal heading part, is as follows: “Six three-motor electric cranes, as per specifications and blue print furnished, $22,680.00, with freight allowed to Birmingham. Shipment three months after date of order.

Heard before Hon. A. H. Alston. Action by John A. Darden against J. L. Holloway. Judgment for plaintiff, and defendant appeals. The note sued on is as follows: “$100.00. Kellyton, Nov. 15, 1906.

<p>Appeal from Morgan Circuit Court.</p> <p>Heard before Hon. D. W. Speake.</p> <p>Action by Butterworth & Lowe against John Catho.art. From a judgment for defendant, plaintiff appeals.</p> <p>The issues and evidence are sufficiently indicated in the opinion. The following is charge 6, refused to the plaintiff: “If the jury believe from the evidence that plaintiff shipped the defendant such cars as defendant ordered, and if you further believe that at the time said cars were delivered to the railroad company they were in perfect condition and free from defects and other imperfections, and if you further believe from the evidence that said wheels were consigned to the defendant, and the bill of lading was issued to him, and mailed to him, then I charge you that, if you believe that, a delivery to said railroad was a delivery to the defendant, and title vested in the defendant from the date of such delivery to the railroad.”</p> <p>When the articles were delivered to the railroad company properly consigned to the defendant, it was a delivery, and when bill of lading was issued and mailed them title was immediately divested out of the appellant and into the appellee. — Bank of Guntersville v. Jones Gotton Go., 46 So. 971; Foley v. Felrath, 98 Ala. 176; Robison v. Pogue, 86 Ala. 257; McGormich v. Joseph, 77 Ala. 237. The court erred in directing execution to issue against the sureties for costs. — Dowe Wire W. v. Englehart, 136 Ala. 608. The court is authorized before the introduction of depositions to exclude the answers of the witness where an inspection of the answers disclosed the fact that the witness had no knowledge of the things he was attempting to testify about.- — Woodall v. Peoples Bank, 45 So. 196. The court erred in the admission of the letters in evidence. — O’Gonnor M. & M. Go. v. Dickson, 112 Ala. 308; L. & N. v. Britton, 43 So. 108. Charge A should have been given, as should charges 2 and 6. — Hodges v. Tufts, 115 Ala. 366; Bank of Gum tersville v. Jones G. Go., supra. Charge 8 should have been given. — Hodges v. Tufts, supra; Loclvwood v. Fitts, 90 Ala. 150; Eagan v. Johnson, 82 Ala. 237.</p> <p>Apellants cannot complain of the court’s action against her sureties. — Eslava v. Farley, 72 Ala. 214. Where there is evidence of the fact admitted without objection the improper sustaining of objections to similar evidence is not prejudicial. There was no error in admitting the letter because it was and purported to be a reply to defendant’s letter of Feb. 20th. — 3 Wig., Sec. 2153; White v. Tolliver, 110 Ala. 300. No presumption will be indulged as to the omissions in the bill of exceptions. — Dupre v. The State, 42 So. 1004; Carpenter v. Joyner, 24 So. 424; Alexander v. Wheeler, 78 Ala. 171. The court properly refused to charge that the title vested in the appellee on the conditions named therein. — 24 Enc. of Law, 1072; Benj. on Sales, Secs. 693 and 723;. Taylor v. Cole, 111 Mass. 363.</p>

Heard before Hon. Thomas. W. Wert. Action by B. H. Sample against W. H. Drinkhard upon an accepted order drawn by the tax assessor assigning his commissions as such, in which S. E. Stewart as administrator of the tax assessor was brought in and substituted as a defendant by statutory interpleader. Judgment for plaintiff and the substituted defendant appeals.

<p>Assumpsit.</p> <p>1. Appeal and Error; Reviejo; Presumption. — Where the bill of exceptions does not purport to contain all the evidence it will be presumed on appeal that evidence was introduced that would uphold the rulings of the trial court.</p> <p>J2. Same; Instructions. — Where the bill of exceptions does not show that it contains all the evidence this court will not on appeal review the general affirmative charge on the whole case.</p> <p>3. Contracts; Maturity of Claim; Burden of Proof. — Where in connection with the common counts plaintiff also sought to recover on a special contract to pay $1,000.00 upon performance of services with a certain result, the date of payment to be fixed by a certain event, in order to recover the plaintiff was bound to show that everything had been done and every event had happened on which payment was conditioned.</p> <p>4. Brokers; Services; Right to Compensation; Evidence. — Where plaintiff sued on a special contract for services in inducing a conveyance of certain lands to the defendant, when it should be sold to prospective purchasers, it was competent for plaintiff to show the execution of the deed passing title to the land to defendant and the execution by defendant of the purchase money notes.</p> <p>5. Same; Form of Transaction. — -Where defendant agreed to pay plaintiff $1,000.00 for his services in procuring a conveyance of certain mineral lands to defendant and the defendant has received the benefit of plaintiff’s efforts in accordance with the contract, the defendant could not by the mere form in which the transaction was subsequently confused impair his obligation to pay.</p> <p>6, Same; Evidence. — Wlhere the plaintiff claimed that the defendant contracted to pay him $1,000.00 for his services in procuring the conveyance of certain mineral lands to the defendant, payment to be made when the defendant sold the lands to others it was competent for the plaintiff to show a deed of the lands so purchased and other land owned by the defendant by which he parted with his title thereto, as showing the happening of an event which fixed the time of payment.</p> <p>8. Same; Performance; Instructions. — Where the plaintiff claimed that the defendant agreed to pay him $1,000.00 for services in procuring the conveyance to defendant of certain mineral lands, payment to be made when defendant sold the land to others, while the defendant’s contention was that the land was to be sold so as to net a profit of $1,000.00 each to both plaintiff and defendant, and that plaintiff’s right to recover depended on that contingency, a charge referring to the evidence containing certain alleged statements that the defendant was working to -make money out of the land and out of others if he could, that he was not working for nothing, and if he could not make money out of the particular track in question, that tract would enable him to sell other lands in connection therewith; also that it made no difference whether defendant made anything out of the land- in question because he migh lose on that land and make something out of additional lands, was misleading and prejudicial.</p> <p>9. Evidence; Deeds; Certified Copy. — Where the plaintiff showed that he had not custody of the deeds to certain lands a certified copy thereof became admissible under section 3374, Code 1907, even though the deed was executed to and the note for the purchase price executed by defendant as' trustee.</p> <p>10. Trial; Reception of Evidence; Effect; Duty to Request Instructions. — Where evidence was admissible for one purpose it cannot be excluded on the ground that it authorizes inferences and observations unfavorable to defendant; the remedy is by requesting an instruction limiting the scope of the evidence to the issues involved.</p> <p>11. Charge of Court; Scope. — It is the duty of the judge in charging the jury to give the law applicable to all theories presented by the testimony, and if he recapitulates evidence on one side he should recapitulate evidence for the other side, and should refrain from indicating from the matter or manner of his charge his own views as to the effect of the testimony.</p>

Heard before Hon. William H. Thomas. Assumpsit by tbe Continental Jewelry Company against Pugb Bros. Judgment for defendant, and plaintiff appeals.

Appeal, from Madison Circuit Court. Heard before Hon. D. W. Speake. Action by A. L. Stoner against the Continental Baking Powder Company, to recover a difference in salary. Judgment for plaintiff and defendant appeals. Counsel discuss the facts in the case and conclude that the court erred in giving charge 1 requested by appellee, and in refusing charges 2 and 3 requested by appellant, but cite no authority in support thereof.

<p>Appeal from Pike Chancery Court.</p> <p>Heard before Hon. A. H. Alston.</p> <p>Bill by George Neal and another against M. E. Williams and another for specific performance, and as ancillary thereto for an abatement of the purchase price •on account of fraud and misrepresentation in the sale. From a decree sustaining demurrers to the bill complainants appeal.</p> <p>When a person sells to another any property of any kind or •character and represents it to be one thing, he must make the representation good to the extent of making the property sold worth as much as it would have been had it been as represented. — Stoudenmeir v. Williamson, 29 Ala. 558; Caldioell v. Sawyer, 30 Ala. 385; Foster v. Rodgers, 27 Ala. 602. The doctrine of waiver •does not apply. — Coleman v. The Banh, 115 Ala. 312; 2 Pom. E'q. sec. 965; 14 A. & E. Enc. of Law, 170. Counsel insist that the amendment did not constitute .a departure and that the bill was not repugnant.</p> <p>As amended the bill is a departure from the original bill. Winston v. Mitchell, 93 Ala.. 554; Caldwell v. King, 76 Ala. 149; Ward v. Patton, 75 Ala. 202; Penn v. Spence, 54 Ala. 351. Amendments which would work a departure cannot he allowed.- — Moore v. Algiers, 54 Ala. 356; Marshall v. Oldes, 86 Ala. 296. Another test is whether the same defenses would be applicable to the amended Mil as to the original. — Parle v. Lyde, 90 Ala. 246; Rapier v. Gulf City, 69 Ala. 476, and authorities supra. The bill was repugnant. — Gardner v. Knight, 124 Ala. 273. The bill fails to show that complainant has sustained any damage from the alleged fraud. — Dosier v. Duffey, 1 Ala. 320; Frederick v. Youngblood, 19 Ala. 680. The bill shows that complainants have waived the fraud charged therein. — Edwards v. Roberts, 7 S. & M. 544; Pearsall v. Chaplin, 44 Penn. 9. The sale was not at so much per acre, but was a sale of so much land for a certain sum of money in gross. — Norwood v. Washington, 136 Ala. 657. The complainants did not act promptly on the discovery of the fraud. — Lockwood v. Fitts, 90 Ala. 150; Orendorff v. Tallman, 94 Ala. 441; Coal Co. v. Neal, 87 Ala. 158.</p>

Heard before Hon. A. D. Sayre. Bill by A. T. Hughes against the administrator of the estate of John D. Letcher, deceased, and others, to enforce a resulting trust. Judgment for respondents, and complainant appeals.

Heard before Hon. G-. K. Miller. Bill by George A. Hill against Marcus L. Smith and others. Prom a decree granting the relief prayed, and denying relief on cross-bill, respondents appeal.

Heard before Hon. John H. Disque. Bill by L. W. Bramlett against T. F. Kyle and others» to restrain the foreclosure of mortgage under power so far as his homestead is concerned and to require the creditor to proceed against the firm property in exoneration of the homestead. Decree for respondents and complainants appeal.

Heard before Hon. W. H. Simpson. Bill by Anna Harris against W. T. Yarbrough and others to set aside a deed as fraudulent, and for partition and distribution. Decree for plaintiff and defendant appeals.

Heard before Hon. William H. Thomas. Bill by Mrs. F. W. R. Clisby against W. T. Jackson and others. From a decree overruling demurrers to the bill, defendant Alice Murphree appeals. The case made by the bill as originally filed was to enforce the foreclosure of a mortgage executed by W. T. and Clara Jackson to Clisby.

A. H. Benners. Bill by the mayor and aldermen of Birmingham against Mary E. Wagenseler to enforce a lien for street improvements. There was a cross bill by respondents seeking to recover damages alleged to have been done to the property by such improvements. From a decree dismissing both the original and the cross bills, complainants appeal.

Heard before Hon. A. H. Benners. Bill by G. C. Ray against Goodall-Brown & Co., and others for cancellation of mortgage. Judgment rendered for failure to answer interrogatories against respondents, and they appeal.

Heard before Hon. Alfred H. Benners. The estate of James A. Boy, deceased, was removed from the probate to the chancery court, and an order was made for the sale of land for distribution, and upon the coming in of the report, on objection made by the heirs, an order was entered referring to the register to ascertain if the sale should be confirmed.

Morgan Chancery Court. Heard before Hon. W. H. Simpson. Bill by Richard L. Stephenson, as trustee in bankruptcy of C. H. Bird, against Jennie M. Bird and others. Prom a judgment sustaining the plea, complainant appeals. The plea is as follows, and is filed on behalf of all the defendants separately and severally: “This bill is being maintained by one Richard L. Stephenson, as trustee in bankruptcy of the estate of C. H. Bird.

Heard before Hon. C. O. Nesmiti-i. Bill by W. A. Thompson against John Vary, seeking to review and annul the decree in a former suit between the same parties. Decree for complainants and respondents appeal. The case presented by the bill does not authorize and does not state good grounds for a review. — McCall v. McCurdy, 69 Ala. 65; Tankersly v. Pettis, 61 Ala. 354; McDougal v. Dougherty, 39 Ala. 407.

Heard before Hon. Tancred Betts. Bill by W. T. DuBose against Mayme C. Grayson, to foreclose a mortgage, with cross bill by respondent to declare tbe mortgage void and cancel it, because given as security for the husband’s debt. From a decree granting the relief prayed by the complainant and denying relief under the cross bill, respondents appeal.

Heard before Hon. W. H. Simpson. Bill by Harris-Cortner & Co., against Howell & Howell, and others, for a receiver. From a decree appointing the receiver prior to the filing of the bill respondents appeal. The filing of the bill is the commencement of the suit. — Sec. 3092, Code 1907. The appointment of a receiver in vacation before the filing of the bill is without jurisdiction and void. — Harwell v. Potts, 80 Ala. 70; Croioder v. Moone, 52 Ala. 220.

Heard before Hou. L. D. Gardner. Bill by W. W. Summerlin against H. A. Plitnam and others. From a decree for plaintiff, defendants appeal.

Heard before Hon. W. W. Whiteside. Bill by Elizabeth Smith, and others against William Siglin and others, for the administration of an estate by the chancery court. Decree for complainants and respondents appeal. Multifariousness is of three kinds. — 1 Dan. Ch. Pr. 384, et seq.; Sims Ch. Pr. 231-4.

Heard before Hon. A. H. Benners. A certain corporation had been declared, at the suit of its creditors, to be insolvent and a final decree had been rendered adjudging it insolvent, and declaring its assets to be a trust fund for the benefit of creditors, and a receiver has been appointed to take charge of same.

Heard before Hon. W. H. Simpson. Bill filed by W. P. Hofferbert against O. H. Bird and ethers to subject certain choses in action to complainant’s debt. An order was made substituting Richard L. Stevenson, trustee in bankruptcy of the said C. H. Bird as the party complainant. From a, decree sustaining the sufficiency of the plea the complainants appeal.

Heard before Hon. L. D. Gardner. Bill by Amos Skains against J. M. Barnes originally filed for specific performance and afterwards amended by setting up that the same transaction was a mortgage and praying a redemption therefrom. Prom a decree sustaining a demurrer to the bill complainants appeal. In sustaining the demurrer the chancellor overlooked the nature of the bill, and the recent statute.— Sec. 3095, Code 1907.

Appeal, from Geneva Chancery Court. Heard before Hon. L. D. Gardner. Bill by Geneva County against the Converse Bridge Company and others. Decree for complainant, and respondents appeal. The following is the chancellor’s opinion, which becomes the opinion of the court: “'The bridge which forms the subject-matter of this suit was built by respondent Converse Bridge Company, under contract with complainant, according to plans and specifications.

Heard before Hon. W. W. Whiteside. Bill by B. I. Hughes as administrator of the estate of T. F. Howell, deceased, against B. C. H'owell, and otherers for subrogation to the lien of certain probate proceedings. From a decree for complainants, respondents appear.

Heard before Hon. W. W. Whiteside. Bill by the Tallapoosa County Bank against W. W. Wynn, administrator, d. b. n. of F. A. Vaughan, the deceased cashier of said bank for an accounting and to fix and enforce a. lien upon the stock owned by his decedent, and upon a.deposit left by his decedent, and for other reasons. Decree for complainants and respondents appeal. No brief reached the Reporter.

• Heard before Hon. At IT. Benners. Bill by Lee C. Bradley as executor and trustee against the cestui que trust and donee to have a will construed. Prom a decree for complainant the respondents appeal. It is conceded by the appellant that the rule against perpetuity applies to devises of both real and personal property; that as to real estate the common law is modified by section 3417, Code 1907, but- that the rule as to personal property is not modified by statute.

Heard before Hon. L. D. Gardner. Bill by Mary D. Austill against John R. Tyson, and others, to establish a lien upon land to the extent of the indebtedness which the purchaser agreed to pay and failed. From a decree overruling demurrers to the bill respondents appeal.

<p>Appeal from Elmore Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p> <p>Bill by N. B. Sewell against James Buyck. From a decree sustaining demurrers to the bill, complainant appeals.</p> <p>The court erred in sustaining demurrer to the bill as it contains equity and its averments were sufficient. — 3 Mayf. 318.</p> <p>After a discussion of the want of equity in the bill and of what judgments are open to collateral attacks, counsel insist that the decree was inteidocutory and that the appeal was not taken within the statutory time, and hence, should be dismissed.</p>

Heard before Hon. A. H. Benners. Bill by C. F. McEvers against the Bellevue Cemetery Company to enjoin the establishment and maintenance of a cemetery, and to enjoin the closing of a highway. From a decree for complainant respondent appeals. A cemetery is not a nuisance per se. — Kingsberry v. Fowler, 65 Ala. 479. The court, therefore, erred in overruling respondent’s demurrer to complainant’s amended bill.

Heard before Hon. A. A. Coleman. Action by W. E. Sells as administrator, etc., and others against tbe Alabama Steel & Wire Company, for tlie death of intestate, an employee, of tbe defendant. Judgment for plaintiff and defendant appeals.

Heard before Hon. D. W. Speak®. Action by Roberta Young, as administratrix of Joe Lawrence, deceased, against the Louisville & Nashville Railroad Company for the death of deceased. From a judgment for plaintiff, defendant appeals. For the statement of the facts, and for former report of this case, see citations set forth in the opinion.

<p> Damage for Injury to Servant. </p> <p>1. Appeal and Error; Review; Favorable to Appellant. — Charges or rulings of the court in eliminating counts in the complaint are necessarily favorable to the defendant, and will not be reviewed on an appeal by him.</p> <p>2. Negligence; Contributory Negligence; Pleas of. — Pleas of contributory negligence must impute to the plaintiff in an action for damages an omission of duty, or the commission of some negligence or dangerous act which proximately contributes to the injury, and such acts or conduct must be shown to be culpable or negligent otherwise than by the mere statement that they are so.</p> <p>3. Witnesses; Examination; Indefinite Question.- — Where a witness testified that he was in the saloon business, such witness being the plaintiff, and that the business about made him a living, with nothing clear, a question as to what his average sales in the saloon business amounted to, was too indefinite and uncertain, and hence, was properly disallowed.</p> <p>4. Master and Servant; Injury to Servant; Complaint. — The ¡counts of the complaint in this case examined and held not subject to any grounds of demurer interposed thereto.</p> <p>5. Same; Boarding Moving Train; Jm-y Question. — It is not as a matter of law contributory negligence to attempt to board a moving train, but depends on the circumstances attending the attempted .boarding, such as the speed of the train, the age or condition of person attempting to board it and whether or not he is encumbered with bundles, etc.</p> <p>6. Same; Evidence. — Where the action was by a servant for injuries received while attempting to board a moving engine by reason of defects in the hand-hold, evidence as to the condition of the handholds on the other side of the engine from that on which plaintiff attempted to get, was irrelevant.</p> <p>7. Same; Fellow Servant; Scope of Duty; Supervisor. — Where a section foreman on a railroad was subject to the orders of a supervisor, the mere fact that the supervisor was on an engine and operating it at the time he directed plaintiff to come to him on the engine, in attempting to do which, plaintiff was injured, did not relieve the supervisor of his duties in the capacity of supervisor, nor relieve plaintiff of the duty of obeying orders.</p> <p>(Anderson and McClellan, JJ., dissent.)</p>

Jefferson Circuit Court. Heard before Hou. A. O. Lane. Action by Joseph Brantley against the St. Louis & San Francisco Railroad, for damages for injuries received while engaged in the service of the master. Judgment for plaintiff and defendant appeals. The substance of the complaint sufficiently appears from the opinion. The following are the pleas referred to in the opinion: 5.

Heard before Hon. Thomas W. Wert. Action by Henry T. Cook, an employee, against the Louisville & Nashville Railroad Company, for damages for' injury happening in the state of Tennessee. Judgment for plaintiff and defendant appeals. The court erred in overruling demurrer to the 3rd count. — Conrad v. (-fray, 19 South. 398. Counsel, discuss the action of the court as to permitting challenges of jurors, but cites no authority in support thereof, except section 7280, Code 1907.

Apeal from Birmingham City Court. Heard before Hon. H. A. Sharpe. Action by William Williams, an employee, against the Republic Iron & Steel Company for damages. Judgment for plaintiff, and defendant appeals. The substance of the complaint is sufficiently set out in the opinion, as are the facts in this case.

Heard before Hon. John W. Inzer. Action by Pat H. Heald, as administrator, against the Alabama Consolidated Coal & Iron Company, for the death of his intestate. Judgment for plaintiff, and defendant appeals. The rulings as to pleadings and evidence appear with sufficient certainty in the opinion. For the complaints in the case, see former report thereof in 154 Ala. 580, 45 South. 686.

Heard before Hon. C. W. Ferguson. Action by Isa A. Seaborn against the Birmingham. Railway, Light &-Power Company. From a judgment for plaintiff, defedant appeals. Plaintiff was a passenger on defendant’s cars, and alleges that as a proximate consequence of the negligence on part of the defendant in transporting her she was injured.

<p>Appeal from Lawrence Circuit Court.</p> <p>Heard before Hon. D.‘W. Speake.</p>

<p>Appeal from Lowndes Circuit Court.</p> <p>Heard before Hon. J. O. Richardson.</p>

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

<p>Appeal from Chilton Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p>

<p>Appeal from Elmore Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p>