Volume 169 — Alabama Reports

Violating Prohibition Law. Appeal from Bessemer City Court. Heard before Hon. William Jackson. Dink Fitzpatrick ivas convicted for violating the prohibitory liquor law, and he appeals.

Violating Prohibition Lam. Appeal from Jefferson Criminal Court. Heard before Hon. S. L. Weaver. From a conviction of violating the prohibition law Jim Bedd appeals.

Murder. Appeal from Bibb Circuit Court. Heard before Hon. B. M. Miller. Jack Johnson was convicted of murder in the first degree, and he appeals. Trick Cottingham was the man alleged to have been killed.

Robbery. Appeal from Anniston City Court. Heard before Hon. Thomas W. Coleman. I. L. Montgomery was convicted of robbery, and he appeals.

Rape. Appeal from Henry Circuit Court. Heard before Hon. W. L. Lee, Special Judge. Under an indictment charging Ely Hutto with carnally knowing a female under the age of consent, he was convicted of an attempt to commit the offense and he appeals. The defendant cannot, under the evidence be guilty as charged. — Dawkins v. The State,-58 Ala. 378; 135 Ala. 28; 55 Ala. 264; Toulet v. The State, 100 Ala. 72.

Trespass to Land. Appeal from Mobile Law and Equity Court, H'eard before Hon. Saffold Bernby. Action by Toulmin Cleveland and others against the Southern Railway Company. From a judgment in favor of plaintiffs, defendant appeals.

Trespass to Realty. Appeal from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Action by F. B. Buck against the Louisville & Nashville Railroad Company in trespass to land for maintaining and operating a railroad track thereon. Judgment for defendant and plaintiff appeals.

Trespass to Realty. Appeal from Autauga Circuit Court. Heard before Hon. E. J. Garrison, Special Judge. Action by Mary B. Lamont against tbe Marbury Lumber Company ancl others for trespass to land. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Trespass to Realty. Appeal from. Morgan Circuit Court. Heard before Hon. Marvin West, Special Judge. Action by R. P. McEntire against tbe Southern Railway Company for damages for trespass to realty. Judgment for plaintiff, and defendant appeals.

Trespass to Realty. Appeal from Mobile Circuit Court. 'Heard before Hon. Samuel B. Browne. Action by Sallie Williams against B. F. Hardeman, individually, and as doing business under the name of J. O. Bell. From a judgment for plaintiff, defendant appeals. The first count is for assault and battery, as are the third and fourth. The fifth and sixth are for trespass to land. The other counts sufficiently appear in the opinion.

Damages for Personal Injury. Appeal from 'Birmingham City Court. Heard before'Hon. C. W. Ferguson. Action by Selma Agricola against the Lewy Art Company.

Assault- and Battery. Appear from Morgan Circuit Court. Heard before Hon. D. W. Speake. Action by William Fricke against James W. Wilhite for an assault and battery. Judgment for plaintiff, and defendant appeals.

Assault ancl Battery. Appeal from Perry Circuit Court. Heard before Hon. B. M. Miller. Action by Jerome Seigel against Thomas Long for damages for assault and battery. Judgment for defendant and plaintiff appeals. Charge 2 referred to in the opinion was the affirmative charge for the plaintiff. The court erred in overruling demurrers to plea 3. — Stevenson v. 'Wright, 20 So. 622.

Malicious Prosecution and False Imprisonment. Appeal from Birmingham City Court, Heard before Hon. C. W. Ferguson. Action by Charles A. O’Neal against the Sloss-Sheffield Steel & Iron Company, in malicious prosecution and false imprisonment. Judgment for plaintiff and defendant appeals. Plaintiff was prosecuted for an assault with intent to murder upon one Stith, who appears to have been in the employment of the defendant company.

Assault and Battery. Appeal from Limestone Circuit Court. Heard before Hon. D. W. Speake. Action by Wm. H. McClellan against John Morris, Sr., for assault and battery. Judgment for plaintiff, and defendant appeals. A former report of this case may be found in 154 Ala. 6B9, 45 South. 641, where the original pleading is set out in extenso.

Damages for Failure to Properly Transmit Message. Appeal from Marion Circuit Court. Heard before Hon. C. P. Almon. Action by L. D. Littleton against the Western Union Telegraph Company for failure to properly transmit messages. From a judgment for plaintiff, defendant appeals.

Damages for Failure to- Deliver Telegram. Appeal from Jefferson Circuit Court. Heard before Hon. A. H. Alston. Action by J. J. Wright against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.

Damage for Delay in Delivery of Telegram. Appeal from Butler Circuit Court. Heard before Hon. J. C. Richaedson. Action by Jacob A. McGehee against the Western Union Telegraph Company for non-delivery of a telegram. Judgment for defendant, and plaintiff appeals.

Damage for Failure to Deliver Message. Appeal from Gadsden City Court. Heard before Hon. John H. Disque. Action by J. B. Cleveland against the Western Union Telegraph Company for a failure to deliver a message. Judgment for plaintiff, and -defendant appeals.

Malicious Prosecution. Appeal from Marshal Circuit Court. Heard before Hon. W. W. Haralson. Action by David A. Jones against John H. Snead for malicious prosecution. Judgment for plaintiff and defendant appeals.

False Imprisonment. Appeal from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Action by Charles R. Stuckey against E. L. Higdon, sheriff, and his official bond, .for false imprisonment. Judgment for plaintiff and defendant appeals.

Trover. Appeal from Calhoun Circuit Court. Heard before Hon. John Pelham. Trover by the International Harvester Company of America against- Bass, Heard & Howie, a corporation.

Trover. Appeal from Marion Circuit Court. Heard before Hon. A. H. Alston. Action by James P. Pearce against the Aldrich Mining Company in trover for the conversion of certain coals and minerals. Judgment for plaintiff and de fendant appeals. The testimony of Pearce showed that he was not in possession when the conversion happened, and hence, his action will not lie.— Garrett v. Sewell, 95 Ala. 457; Ferris v. Hoglan, 121 Ala. 240.

Damages for Injury From, Malpractice. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Action by James T. Hamrick against M. G. Shipp. From a judgment for defendant, plaintiff appeals. The facts sufficiently appear in the opinion of the court.

Damage for Injury' From Defective Streets. Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Action by H. C. Pool against the City of Birmingham. From a judgment for plaintiff, defendant appeals.

Action for Personal Injury on Account of Defective Street. Appeal from Montgomery Circuit Court. Heard before Hon. W. W. Pearson. Action by W. S. Wycbe against tbe city of Montgomery for personal injuries caused by a defective street. Judgment for plaintiff in tbe sum of $10,000, and defendant appeals. Tbe demurrer to tbe complaint should have been sustained. — City Council of Montgomery v. Wright, 72 Ala. 411; Sec. 1272, Code 1907.

Libel. Appeal from Montgomery City Court. Heard before Hon. A. D. Sayre. Action by Campbell Jones against tbe Advertiser Company for libel. From a judgment for plaintiff for $5,000, defendant appeals. Tbe pleadings and tbe facts sufficiently appear in tbe opinion of tbe court.

Damages for Creating and Maintaining a Nuisance. Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Suit by Mary Ella Pruitt against Adler & Co. and others. From a decree for plaintiff! against, defendant Adler & Co., it appeals.

Damages for Breach of Contract. Appeal from -Jefferson Circuit Court. Heard before Hon. A. O. Lane. Action by Mary B. Brown against the Birmingham Water Works Company, for damages for breach of contract. Judgment for defendant and plaintiff appeals, Under its franchise contract the Birmingham Water Works Company •may charge for water supplied dwellings, hath tubs and water closets, at less than the flat rate fixed in Section 12 thereof. — Smith v. B’ham W. Whs.

Action on Injunction Bond. Appeal from Birmingham City Court. Heard before Hon. C. C. Nesmith. Action on an injunction bond by the mayor and aldermen of the town of East Lake and others, against W. M. DeVore and others. Judgment for defendant and plaintiff appeals.

Action on Attachment Bond. Appeal from Chambers Circuit Court. Heard before Hon. S. L. Brewer. ' Action by J. T. Still, Jr., against Charles Schuessler & Sons and others on an attachment bond. From a judgment for plaintiff, defendants appeal.

Damages for Injury to Person and Property. Appeal from Lauderdale Circuit Court. Heard before Hon. C. P. Almon. Action by S. P. Merrill against the Sheffield Company and others. From a judgment for defendants, plaintiff appeals. The following portions of the oral charge of the court were excepted to: (Al) “The right of an electric street railway in the use of the street is equal to that of the traveling public.

Action Against Landlord for Damage to Goods. Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Action by K. B. Koosa & Co. against Henry Werten. From a judgment in favor of plaintiff, defendant appeals. This was an action of damage to goods owned by the tenants, against the landlord, alleged to have come from ' defective pipes and a failure of the defendant to remedy the defect. A former report of the case will be found in 158 Ala. 496, 48 South. 544.

Action for Damages for Loss of Dogs. Appeal from Montgomery City Court. Heard before Hon. William H. Thomas. Action by Julian M. Rice against' tbe Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals.

Action for Death of Horse. Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Action by J. T. Camp against Weller & Co. From a judgment for plaintiff, defendants appeal.

Damage for Killing Stoch. Appeal from. Selma City Court. Heard before Hon. J. W. Mabry. Action by William Moore against the Western Railway of Alabama, for damages for killing stock. Judgment for plaintiff and defendant appeals.

Damage for 'Loss of Freight. Appeal from Geneva Circuit Court. Heard, before Hon. H. A. Pearce. Action by the Chicago Varnish Company against the Central of Georgia Railway Company, for damages for failure to deliver freight. Judgment for plaintiff and defendant appeals.

Damage for Failure to Deliver Freight. Appeal from Jackson Circuit Court. Heard before 1-Ion. W. W. Haralson. Action by W. L. Moody against the Southern Railway Company for damages for delay in delivery of freight. Judgment for defendant and plaintiff appeals. The appellate court Avill not examine into extrinsic facts to see whether or not from the evidence introduced the facts Avere correctly found by the court.

Damage for Delay in Delivering Freight. Appeal, from Russell Circuit Court. Heard before Hon. A. A. Evans, Action by J. E. Sims against tbe Central of Georgia Railway Company, From a judgment for plaintiff, defendant appeals. Tbe pleadings and tbe issues sufficiently appear in tbe opinion.

Damages for Injury to Person on Track. Appeal from Dale Circuit Court. Heard before Hon. M. Sol-lie. Action by James H. Blackmon, administrator, against tbe Central of Georgia Bailway Company, for damages for tbe death of his intestate. From a judgment for plaintiff, defendant appeals.

Damages for Injury to Person on Trade. Appeal from Birmingham City Court-. Heard before Hon. C. W. Ferguson. Action by William J. Randle, as administrator, against the Birmingham Railway, Light & Power Company. Judgment for plaintiff in the sum of |500, and he appeals.

Action for Death of Person on Trade. .Appeal from Jackson Circuit Court. Heard before Hon. W. W. Haralson. Action by C. W. Shipp, as administrator for damage for death of intestate, against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear from the opinion.

Damage for Injury to Servant. Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Action by George Long by his next friend against the Sloss-Sheffield Steel & Iron Company fop damages for injury to him while in their employ, under a convict contract of hire by the state. Judgment for plaintiff and defendant appeals.

Damages for Injury to Employee. Appeal from Mobile Law and Equity Court. Heard before Hon. Saffold Berney. Action by Charlie L. Sanges against the Mobile Electric Company for personal injury. From a judgment for plaintiff, defendant appeals.

<p> Damage for Injury to Servant. </p> <p>Appeal from Walker Law and Equity Court.</p> <p>Heard before Hon. T. L. Sowell.</p> <p>Action by Columbus Walker against the Southern Bailway Company for damages for personal injuries alleged to have been inflicted while in the course of his employment. Judgment for defendant and plaintiff appeals.</p> <p>The court erred in sustaining demurrer to count 5. — Postal T. Go. v. Jones, 133 Ala. 226; Duncan v. S. L. & S. F. B. B. Co., 152 Ala. 119. The court erred in overruling demurrer to pleas 3 and 4. — Osborn v. Ala. S. & W. Go., 135 Ala. 575. The court erred in overruling demurrers to amended pleas 5 and 6. — Authorities supra. The court erred in giving the defendant the affirmative charge. — So. By. Go. v. Shelton, 136 Ala. 191; Ensley By. Go. v. Gheuming, 93 Ala. 24; L. & N. v. Tammell, 93 Ala. 350; M. & O. v. Martin, 131 Ala. 278.</p> <p>No brief reached the Beporter.</p>

Damage for Injury to Passenger. Appeal from Montgomery City Court. Heard before Hon. William H. Thomas. ■ Action by Charles P. Storrs against the Central of Georgia Railway Company for personal injuries received while a passenger. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear in the opinion of the court. The following charges were refused to the defendant: (1) General affirmative charge.

Damage for Injury to Passenger. Appeal from Walker Circuit Court. Heard before Hon. James J. Bay. Action by Cleve Humphries against the Alabama Central Railroad Company. From a judgment for plaintiff, defendant appeals.

Damage for Assault and Battery on Passenger. Appeal from Etowah Circuit Court. Heard before Hon. John W. Inzer. Action by James J. Sampley against the Alabama City, Gadsden & Attalla Railway Company. Prom a judgment for plaintiff, defendant appeals.

Damage for Injury to Passenger. Appeal from Birmingham City Court. I-Ieard before Hon. Charles A. Senn. Action by J. P. Yates, pro and, against the Birmingham Kailway, Light. & Power Company. Judgment- for plaintiff, and defendant appeals.

Injury to Employee. Appeal from Birmingham City Court. Heard before Hon. Charles A. Senn. Action by James R. Sutton, an employee, against the St. Louis & San Francisco Railroad Company, for injury. Judgment for plaintiff and the defendant appeals.

Settlement of Estate. Appeal from Mobile Probate Court.' Heard before Hon. Price Williams, Jr. Petition by Callie White by her guardian Edward Walsh and Emma 'Green to have the letters of administration upon the estate of William White issued to Fannie Hill revoked and annulled. From a decree denying the petition Callie White appeals.

Contest of Appointment of AAminisbi ator. Appeal from Montgomery Probate Court. Heard before Hon. J. B. Gaston. Application by John G. Crommelin for letters of administration upon tlie estate of his deceased uncle with contest and objection filed by Sadie G. Baoull and others. From an order denying the application, petitioner appeals.

Contest of Will. Appeal from Montgomery Probate Court, Heard before Hon. J. B. Gaston. Proceedings by Mary Elizabeth Elliott to probate the will of her testator, with contest of same by Mary Louise Winston and others. From a judgment admitting the will to probate the contestants appeal.

Contest of Settlement of Estate. Appeal from Lawrence Probate Court. Heard before Hon. J. C. Kumpf. In the matter of the settlement of the insolvent estate of Gabe Pool, deceased. The Sheffield Oil Mill and other creditors intervened, to have certain funds obtained from life insurance accounted for. From a decree overruling their contention, they appeal.

Gondemnalion Pro ceedAngs. Appeal from Walker Circuit Court. Heard before Hon. James J. Bay. Proceedings by Alabama Central Railway Company against E. C. Musgrove to condemn a certain right of way. From an assessment of damages in the probate court, the respondent appealed to the circuit court, and from the judgment rendered in the circuit court the petitioner appeals.

Ejectment. Appeal from Covington Circuit Court. I-Iearcl before Hon. H. A. Pearce. Ejectment by M. M. Biley against J. H. Fletcber and others. Judgment for plaintiff, and defendants appeal.

Trial of Right of Property. Appeal from Geneva Circuit Court. Heard before Hon. J. M. Carmichael. Claim suit in which Charles H. Stern & Co., was plaintiff with N. J. Harris, defendant, and Lehman-Durr & Co., claimants. Judgment for the claimants and the plaintiff appeals.

Ejectment. Appeal from Marengo Circuit Court. Heard before Hon. John T. Lackland. Ejectment between the Edinburgh-American Land Mortgage Company, Limited, and I. I. Canterbury, as administrator, etc. From a judgment in favor of the latter, the former appeals.

Ejectment. Appeal from Monroe Circuit Court. Heard before Hon. John T. Lackland. Ejectment by M. F. Byrd against Dock Bailey and others. Judgment for defendants and plaintiff appeals. The tax deed to William Sawyer was clearly a good and valid tax deed. Loxoe v. Martin, 79 Ala. 366.

Forcible Entry ancl Detainer. Appeal from Covington Circuit Court. Heard before Hon. H. A. Pearce. Forcible entry and unlawful detainer by the Jackson Lumber Company against W. H. Bass. Bemoved by petition and affidavit to the circuit court under the ■statute by the defendant before trial in tbe justice court. Judgment for plaintiff and defendant appeals.

<p>1. Witnesses; Competency; Transaction With Decedent. — Where the mortgagor is dead and the suit is in detinue by a mortgagee against one not in privity with the dead mortgagor, the mortgagee is competent to testify as to the amount due on the mortgage, since the estate of the dead mortgagor is not interested in the result of the suit, and section 4007, Code 1907, is without application.</p> <p>2. Appeal and Error; Harmless Error; Evidence. — Where a reasonable attorney’s fee is not within the issue and no recovery is had for such attorney’s fee, any error in admitting evidence thereof is harmless.</p> <p>3. Detinue; Issue; Verdict.- — To support a judgment for the recovery of the property or its alternate value, in detinue, a verdict finding for the plaintiff for $60 for 2,000 pounds of seed cotton and $7.50 for 500 bundles of fodder, shows a sufficient finding for the specific property and the ascertainment of the value thereof.</p> <p>4. Same. — In an action of detinue by a mortgagee against one not in privity with the mortgagor, such an one is not entitled to have the amount of the mortgage debt ascertained under section 3789, Code 1907.</p> <p>5. Same; Insane Person; Instructions. — In an action of detinue by a mortgagee, where there was evidence of the insanity of the mortgagor at the time of the execution of the mortgage, a charge asserting that the presumption of sanity could be rebutted, and that if the jury was reasonably satisfied that the presumption had been overcome, and that the mortgagor was of unsound mind so that he did not understand the subject of the contract and its nature and probable consequences, they must find for the defendant, properly submitted the issues.</p> <p>6. Evidence; Burden of Proof. — The jury need only be reasonably satisfied of the facts on which their verdict was based to justify a finding in a civil case.</p>

Detinue. Appeal from Hale Circuit Court. Heard before Hon. B. M. Miller. Detinue by Dunaway & Lambert against J. B. Stickney, for a mule colt. Judgment for plaintiffs and defendant appeals. Both parties claim title through Will Hinton, and it was competent to sIioay Iioaa” many mules Hinton had, and also the color of the mule.

Detinue. Appeal from Montgomery Circuit Court. Heard, before Hon. W. W. Pearson. Detinue by J. T. Robinson against J. R. Minchener and others. Judgment for plaintiff and defendants appeal. The court erred in its ruling on the admission of the testimony because the same was illegal, irrelevant and immaterial to the issues involved in the case.

Detinue. Appeal from Geneva Circuit Court. Heard before Hon. H. A. Pearce. Detinue by the First National Bank of Opp against the Hacoda Mercantile Company. Judgment for defendant and plaintiff appeals.

Detinue. Appeal from Anniston City Court. Heard before H'on. Thomas W. Coleman, Jr. Detinue by Charlotte Jones against D. M. Boozer. From a judgment for plaintiff, defendant appeals. The facts made by the testimony tend to show that the plaintiff was the. owner of four mules, which she rented through her agent to a man named McKinley; that McKinley used the mules to haul oil with, and agreed to pay a rental therefor of $1 per day.

Motion to Require Proceeds of Sale Paid Over. Appeal from Montgomery City Court. I-Iearcl before Hon. Armstead Brown. Action by J. T. Butledge and others against F. J. Cramton and others. From a judgment for plaintiffs, defendants appeal. This proceeding grew out of the former proceedings of Rutledge v. Cramton for the partition of lands, the reports of which can be found in 150 Ala. 275, 43 South. 822, and 157 Ala. 141, 47 South. 214, and 163 Ala. 649, 50 South. 900.

Breach of Contract. Appeal from Randolph Circuit Court. Heard before Hon. S. L. Brewer. Action by J. P. Cantrell against Mrs. I. M. Hester and others, for breach of contract. Judgment for plaintiff and defendants appeal. Counsel discuss the assignments of error raised upon the record as shown by the bill of exceptions, but in view of the decision it is not deemed necessary to set them out.

Heard before Hon. C. W. Ferguson. Jerome A. Tucker entered a motion against John S'. Gillespie as clerk and register of the city court of Birmingham for summary judgment to compel him to pay over certain fees collected for the movant as a witness in a certain cause theretofore tried in such court. From a judgment denying motion movant appeals.

Trial of Right of Property. Appeal from Anniston City Court. Heard before Hon. Thomas W. Coleman, Jr. William Chandler as execution creditor bad execution upon judgment against T. B. Cohen and another levied upon an engine and boiler, to which the Johnson Lumber Company, a corporation interposed its claim. From a judgment for the claimant the execution plaintiff appeals.

New Trial. Appeal from DeKalb Circuit Court. Heard before Hon. W. W. Haralson. W. E. Killian had a judgment against Kenneth Killian and from an order granting a new trial in said case he appeals.

Trial of Right of Property. Appeal from Randolph Circuit Court. Heard before Hon. S. L. Brewer. The Marbury Lumber Company obtained a judgment against J. W. Hunter, and had execution thereon levied upon three shares of stock in the Wedowee Oil Mills, which shares stood in the name of J. W. Hunter on the books of the corporation. Mrs. K. E. Hunter claimed the shares and from a judgment sustaining her claim the execution plaintiff appeals.

Assumpsit. Appeal from Mobile City Court. Heard before Hon. O. J. Semmes. Assumpsit by M. Odom, as assignee, against the Mobile, Jackson & Kansas City Railroad Company. Judgment for plaintiff, and defendant appeals.

Assumpsit. Appeal from Jefferson Circuit Court. Heard before Horn A. A. Coleman. Action by Lizzie G. Howell against J. H. Roll for balance due under a written contract of rent. Prom an insufficient judgment for plaintiff she appeals. The plaintiff was entitled to a verdict for the entire amount and the court should have given the affirmative charge without qualification. — Ala. 6r. L. I. Go. v. Mobile L. I. Co., 81 Ala. 329, and authorities there cited.

Assumpsit. Appeal from Birmingham City Court. Heard before Hon. H. A. Sharpe. Action by J. B. Bryan against W. F. Carter and others. From a judgment for defendant, plaintiff appeals. The plaintiff offered in evidence a paper writing purporting to be a contract of lease for a dwelling bouse between J. R. Bryan and the Carters.

Action on Insurance Policy. Appeal from Montgomery City Court. Heard before Hon. A. D. Sayre. Action by J. Ryalls against the Commercial Union Assurance Company to recover on a fire insurance policy. Judgment for plaintiff and defendant appeals.

Assumpsit. Appeal from Mobile City Court. Heard before Hon. O. J. Semmes. Action by the city of Mobile against the county of Mobile to recover the price of water furnished the county building. Judgment for defendant and plaintiff appeals. The city had full authority to purchase the plant under the provisions of Local Acts 1898-9, p. 19, but in purchasing the property it did not become burdened with the franchise.

Breach of Contract.' Appeal from Geneva Circuit Court. Heard before Hon. H. A. Pearce. Action by P. E. Greer against tbe Malone-Beal Mercantile Company for breach of contract. Judgment for plaintiff, and defendant appeals.

Assumpsit. Appeal from Mobile City Court. Heard, before Hon. O. J. Semmes. Action by the Pierson Lumber Company against George P. Craig & Co. for tbe purchase price of lumber. Judgment for plaintiff, and defendants appeal.

Assumpsit. Appeal from Randolph Circuit Court. Heard before Hon. S. L. Brewer. Action by the Columbia Mill & Elevator Company against T. C. Bingham and others for the price of certain flour, as a breach of contract of sale thereof. Judgment for defendant and plaintiff appeals. The admission of evidence of Bingham as to the contents of the contract was clearly illegal. — Potts v. Coleman, 86 Ala. 94.

Action for Rent. Appeal from Montgomery City Oonrt. Heard before Hon. William H. Thomas. Action by J. C. Tyson against Abe Weil for rent, begun by attachment. From a judgment awarding insufficient damages, plaintiff appeals.

Assumpsit. Appeal from Madison Law and Equity Court. Heard before 1-Ion. Tancred Betts. Action by J. H. Snead and others against the Jones Cotton Company for the price of cotton sold. Judgment for plaintiff and defendant appeals. The agreement set out is void and the court cannot give it effect. — Robinson v. Bulloch, 58 Ala. 621; Boykin v. Bank of Mobile, 72 Ala. 269. The contract cannot be said to be ambiguous so as to be made certain by evidence aliunde. — 4 Ene.

Assumpsit. Appeal from Montgomery City Court. Heard, before Hon. William H. Thomas. Action by E. R;. Franklin against N,. B. Comer to cover the purchase price of goods upon rescission of sale. Judgment for plaintiff and defendant appeals. The pleas presented a defense to the complaint and the court erred in sustaining demurrers thereto. — Bill v. Camp, 22 Ala. 258; Hodges v. Tufts, 115 Ala. 374; Stevenson v. Allison, 123 Ala. 447; Roma>noff M. Co. v. Comieron, 137 Ala. 214.

Assumpsit. Appeal from Coosa Circuit Court. Heard before Hon. S. L. Brewer. Assumpsit by B. F. Roclen Grocery Company against J. T. Leslie. Judgment for defendant, and plaintiff appeals.

Assumpsit. Appeal from Anniston City Court. Heard before Hon. Thomas W. Coleman, Jr. Assumpsit by tbe Jacksonville Oil Mill Company against D. J. McCullars. Judgment for plaintiff and defendant appeals.

Assumpsit. Appear from Houston Circuit Court. Heard before Hon. H. A. Pearce. Assumpsit by M. E. Carmichael against M. E. Register. From a judgment sustaining demurrers to defendant’s special pleas, defendant appeals. The court erred in sustaining demurrers to the plea. 1st, because the allegations of the pleas show that the suit is by one partner against another on partnership matters before settlement. — Newton v. Pittman, 98 Ala. 526; 4 Mayf. 411.

Assumpsit. Appeal from Cullman Circuit Court. Heard before Hon. D. W. Speaks. Action by Gunter & Gunter against Ignatius Poliak, From a judgment for defendant, plaintiffs appeal. In this case appellants moved to strike the bill of exceptions from the record, which was granted; and they then sought to establish a proper bill of exceptions, which motion was denied by the court.

Bill by Married Woman to Cancel Mortgage Because Given to Secure Husband’s Debt. Appeal from Jefferson Chancery Court. Heard before Hon. Alfred R. Benners. Bill by Elizabeth Hopper against M. M. Freed and others to cancel a mortgage because given to secure the husband’s debt. Décree for complainant and respond- ' ents appeal.

Bill to Enjoin Ejectment Suits, to Reform a, Deed, and for General Relief. Appeal from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Suit by W. H. Hollingsworth and another against Alex Gillespy and others. Prom a judgment for complainants, defendant named appeals. After the submission of the cause on demurrer, the bill was. dismissed for want of equity.

Bill for Accounting, Discovery in Aid Thereof and for Injunction. Appeal from Butler Chancery Court. Heard before Hon. L. D. Gardner. Bill by Lonisa E. Crenshaw and others against the Gulf Bed Cedar Company for an accounting, discovery in aid thereof and for an injunction to prevent further removal and cutting of timber. Decree for complainant and respondent appeals.

Bill for Partition. Appeal from Bessemer City Court. Heard before Hon. William Jackson. Bill by Ida Bennett against J. Hardy Bennett. From a decree overruling demurrers to the bill, respondent appeals.

Bill to Atate Continuing Nuisance, and for Damage. Appeal from Shelby Chancery Court. Heard before Hon. W. W. Whiteside. Bill by S. Z. T. Champion against tbe Central of Georgia Railway Company to abate a contiuing nuisance, and for damages. Decree for complainant and respondent appeals. Counsel insist that under tbe facts in this case tbe damages awarded were too great and that tbe cause should be reversed and remanded.

Bill to Quiet Title. Appeal from Houston Chancery Court. Heard before Hon. L. D. Gardner. Bill to quiet title by John C. Knight against J. W. Gabbett and others. From a judgment for complainant, respondents appeal. The bill alleges proceedings leading up to a sale of sixteenth sections or school lands; that orator became the purchaser, executed notes, paid a certain cash price, and received a certificate of the township trustees to the lands in question.

Bill to Declare Mortgage a Trust and to Foreclose. Appeal from Montgomery Chancery Court. Heard before Hon. L. D. Gardner. Bill by Montgomery Cooperage Co. and others against the firm of Winter, Loeb & Company, and individuals composing said firm, to declare a trust in a certain mortgage, and to foreclose same. Decree for complainant and respondent appeals.

Bill to Quiet Title. Appeal from Mobile Law and Equity Court. Heard before Hou. Saffold Berney. Bill by Jett Bros. Contracting Company against Louis Touart. Demurrers to the bill were overruled, and respondent appeals. Tbe bill alleges: (1) That complainant is a business corporation duly chartered under the laws of the state of Alabama with its office and principal place of business in Mobile.

Homestead Exemption. Appeal from Autauga Chancery Court. Heard before Hon. W. W. Pearson. McDaniel & Sons filed a bill against Pulsifer and others to have certain lands sold to pay off certain judgments, and certain deeds made to said lands, declared fraudulent and void as against creditors. A decree was entered granting the relief prayed, and an appeal taken, and pending said appeal Pulsifer filed this petition for homestead exemption in some of the land.

Bill for Partiition. Appeal from DeKalb Chancery Court. Heard before Hon. W. H. Simpson. Bill by E. R, Bell by next friend and others against W. W. Russell and others for partition. Decree for complainants and respondents appeal. The statute of limitations will run against one tenant in common in favor of his co-tenant. — Brady v. Stiff, 75 Ala. 80.

Bill to Bet Aside Deed. Appeal from Elmore Chancery Court. Heard before Hon. W. W. Pearson. Bill by Earle V. Walkley against H. W. Walkley and another. From a degree overruling a demurrer to tbe bill, defendants appeal.

Bill for Doiaer Interest. Appeal from Barbour Chancery Court. Heard before Hon. L. D. Gardner. Bill by Julia McLeod against Sallie E. McLeod, administratrix, and others, to impress the proceeds of the sale of certain lands, so far as her husband’s share appeared, with the dower interest therein. Prom a, judgment overruling demurrers to the bill respondents appeal.

Bill to Foreclose First and Second Mortgage. Appeal from Morgan Chancery Court. Heard before Hon. W. H. Simps'on. Bill by J. B. Orr against Tony Baker and others to foreclose certain mortgage. Decree for complainants and respondent Baker appeals. A proper application of the principles of law with reference to usury contracts will impel a modification of the decree in this case.

<p>(Addenda to the opinion in the above styled case, which case will be found reported in this volume at page 196. To be read just after the opinion on rehearing. This was omitted by an oversight of the Reporter.)</p>

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H. Bennees.</p>