Volume 17 — Alabama Appellate Reports

<p>Appeal from Circuit Court, Lawrence County; Robert C. Brickell, Judge.</p> <p>Action by Dee Almon against the Home Supply Company. From the judgment rendered, defendant appeals.</p>

<p>Appeal from Circuit Court, Elmore County; A. B. Poster, Judge.</p> <p>Duff Walker was convicted of violating the prohibition laws, and appeals.</p>

<p>1. Payment <&wkey;9 — Payment in PropertyExtinguishment of Debt.</p> <p>Where parties agree that property other than money may be used in the payment of an obligation, a delivery and conveyance of the property specified will extinguish the debt.</p> <p>2. Payment <&wkey;65(6) — Payment in Property —Burden of Proof.</p> <p>Debtor who claims to have discharged obligation to pay money by payment in property other than money has the burden of proving that substituted performance was.accepted by the creditor as tb.e equivalent of payment in money or in satisfaction of the obligation.</p> <p>3. Payment <&wkey;24 — Payment by Giving of Security:</p> <p>A higher security taken from the debtor himself extinguishes the original contract, where the contrary does not appear upon the face of the security itself.</p> <p>4. Sales <&wkey;59 — Construing Instruments Together.</p> <p>Where automobile sales contract provided for payment by the execution and delivery of a note securéd by mortgage on real estate, and the mortgage executed to seller by buyer in payment guaranteed that the land described was free of all liens and incumbrances, these papers were to be construed together as establishing the intention of the parties that the buyer’s obligation under the contract should he satisfied, and title to the automobile divested out of the seller, only by buyer’s délivery to the seller of a valid mortgage which should be prior to all other liens and incumbrances.</p> <p>5. Appeal and Error &wkey;>1011(l) — Review— Conflicting Evidence — Finding.</p> <p>Finding of court upon conflicting evidence will not be disturbed on appeal.</p>

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Lela West was convicted of violation of an ordinance of the City of Montgomery, and appeals.'</p>

<p>1. Trover and Conversion <®=»38 — Admissibility oe Evidence.</p> <p>In action for conversion, any fact or circumstance tending reasonably to show that defendant exercised illegal acts of dominion over the property either directly or through the agency of another is admissible.</p> <p>2. Evidence <&wkey;474(l) — Identity oe Property.</p> <p>A witness who has knowledge of the fact may testify to the identity of property:</p> <p>3. Trial &wkey;>192 — Instructions—Assumption oe Facts.</p> <p>In the general charge to the jury, court may assume as true a fact admitted to be true by the parties to the suit.</p> <p>4. Trover and Conversion <&wkey;46 — Damages —Time.</p> <p>In action for conversion where plaintiff has lost his property wholly by the conversion, and the value of the property is not fluctuating, the measure of damages is the value at the time of the conversion with interest to the time of the trial and verdict.</p> <p>5. Trover and Conversion &wkey;>49 — Damages —Fluctuating Value.</p> <p>In action for conversion where plaintiff has wholly lost property by the conversion, the measure of damages, if the value is fluctuating, is the highest value at any time between the conversion and the trial.</p> <p>&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

M. Miller, Judge. Action by tbe S. Punkenstein Company, Limited, against O. D. Cummings, on the common counts for merchandise sold and delivered. From a judgment for plaintiff, defendant appeals.

<p>Burglary <&wkey;2 — Larceny <&wkey;6 — Property Su,bjeco>-Interstate Shipment op Liquor.</p> <p>An interstate shipment of whisky had a legal valne in Alabama, and contention that defendant cannot he convicted of breaking into freight cars where liquor was being kept or under larceny count will be overruled.</p> <p>(Cr^For other oases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes</p>

Turner, Judge. James M. Howard was convicted of unlawfully entering the lands of another and cutting, girdling, or boxing pine trees for the purpose of obtaining crude turpentine, and he appeals.

M. Miller, Judge. Action by Mrs. Lizzfle Shelby against W. M. Mitchell as administrator. Judgment for plaintiff, and defendant appeals.

Leigh, Jr., Judge. Max Maisel was tried by the court without a jury for a violation of the prohibition law, was convicted,'and from the-judgment he appeals.

<p>1. Criminal Law i©=^364(7) — Evidence—Res Gest-’e — Explaining Possession of Stolen Property.</p> <p>In prosecution for larceny, evidence of defendant’s statement as to his possession of the stolen property made after he had had time to fabricate an excuse as to his possession thereof was inadmissible, not being a part of the res geste of the discovery of the property in defendant’s possession, or explanatory thereof.</p> <p>2. Witnesses <&wkey;236(6) — Question Objectionable in Part.</p> <p>' A question which elicits both competent and incompetent testimony is objectionable.</p> <p>3. Criminal Law <&wkey;G70 — Reception of Evidence — Failure to Inform Court of Expected Answer.</p> <p>In prosecution for larceny, answer to question as to declaration made by defendant relat-' ing to his possession of the stolen property, where court was not informed as to the nature of answer expected, was properly excluded, inasmuch as such answer might have elicited a self-serving declaration.</p> <p>4. Larceny &wkey;>43 — Tiieft of Cattle — Admissibility of Evidence.</p> <p>In prosecution for stealing cattle, evidence that the defendant had given the owner of the cattle permission to hunt on his plantation was not relevant or material.</p> <p>5. Larceny <&wkey;68(l) — Theft of Cattle — Jury Question.</p> <p>In prosecution for stealing cattle, evidence held to authorize submission of the case to the jury.</p> <p><Sss>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes</p>

L. Sowell, Judge. Will Metcalf was convicted of manslaughter in the first degree, and he appeal^. The defendant was indicted for murder in the first degree. The pleas interposed were not guilty, and not guilty by reason of insanity.

Charles Miles was complained against for selling, keeping for sale, and offering for sale certain liquors, contrary to an ordinance of the City of Montgomery, his demurrers to the complaint were overruled, and he appeals.

I. Jones, Judge. Warner Allen was convicted of violating an ordinance of the Town of Thomaston, and appealed to the circuit court, where he was again convicted, and he appeals to the Court of Appeals.

■ Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge. Three separate actions by Gertrude Hairston against J. B. Smiley, doing business as the Alabama Livery Company, the Alabama Livery Company, and the Southside Livery Company and others, consolidated and tried as one action. Judgment for plaintiff against defendant Southside Livery Company, and the latter appeals.

S. Van de Graaff, Judge. Action by Mrs. Carrie McGee against the Eutaw Ice, Water & Power Company, to recover damages for disconnecting water supply. Erom a judgment for plaintiff, defendant appeals.

<p>1. Criminal Law &wkey;>1092(l) — Appeal—Bill of Exceptions — Indorsement of Date.</p> <p>On appeal' from conviction for violating the prohibition law, a purported bill of exceptions will not be considered where it affirmatively appears that the judge who tried the case has not indorsed thereon the true date upon which the alleged bill of exceptions was presented to him.</p> <p>2. Criminal Law <&wkey;1092(4), 1109(2) — Appeal— Sufficiency of Bill of Exceptions —Waiver.</p> <p>The seasonable presentation of a bill of exceptions on a criminal appeal, to be evidenced by the bill itself, is a jurisdictional fact, and is not waived by submission of the cause without motion to strike the bill.</p>

<p>Appeal from Circuit Court, Tuscaloosa County; Henry B. Roster, Judge.</p> <p>Proceeding between Wile Humphreys and the State. From a determination in favor of the State, Humphreys appeals.</p>

<p>1. Statutes &wkey;>181(l) — Construction—Legislative Intent.</p> <p>In construing statutes, the intention of the Legislature will be given effect.</p> <p>2. Statutes <&wkey;183 — Construction — Purpose op Act.</p> <p>The meaning of the Legislature may be extended beyond the precise words used if such was the intent of the Legislature.</p> <p>3. Schools and School Districts &wkey;>63(l, 5) — Attendance Officer — Authority to - Appoint.</p> <p>Acts 1915, p. 534, foeTS, in view of section 5, to authorize board of school commissioners of Mobile county, as constituted under Acts 1875-76, p. 363, to appoint attendance officer for city of Mobile to be compensated out of city treasury, notwithstanding Const. 1901, § 270, such city haying no city board of education, and Acts 1915, p. 534, not being limited to the county' boards created under Code 1907, § 1713, or city boards created under section 1349.</p> <p>ocher eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Marengo County; R. I. Jones, Judge.</p> <p>Warren Dodd was indicted for trespass. From an order sustaining a demurrer to the indictment, the State appeals.</p>

Clair Óounty; O. A. Steele, Judge. Action by L. H. Davis against the Coal City Mining Corporation and others. Erom judgment for plaintiff, the named defendant appeals.

<p>Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.</p> <p>Action by John F. Williams against R. L. Formby. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Cherokee County; W. W. Harralson, Judge.</p> <p>Proceedings between the State and Sam Rodgers and Ed Rodgers. Sam Rodgers and Ed Rodgers appeal.</p>

<p>1. Appeal and Ebboe @=>440 — Amendment of Judgment Afteb Appeal — Jurisdiction. v</p> <p>After appeal from judgment had been perfected, trial court was divested of jurisdiction, and could not amend judgment appealed from by reducing amount thereof.</p> <p>2. Highways @=>172(1) — Use—Degeee of Cabe.</p> <p>An automobile is not excluded from common1 right of use of public highways, and proprietor or operator thereof is only liable for the consequences of negligence in such use.</p> <p>3. Highways @=>172(1) — Use — Degree of Caee.</p> <p>The operator of an automobile on a public highway must use such care as a reasonably prudent man would under like circumstances; the highest degree of care not being exacted.</p> <p>4. Highways @=>183 — Killing of Hogs —Liability of Opeeatob of Automobile.</p> <p>Where plaintiff’s hogs, not on the highway, suddenly darted into the road just as defendant’s automobile got alongside of them and got under his caí-, resulting -in their being killed, there could be no recovery; killing being due to an unavoidable accident.</p> <p>©=>For other eases see same topic and KEY -NUMBER in all Key-Nnmhered Digests and indexes</p>

<p>1. Principal and Surety <&wkey;33 — Extinguishment oe Indebtedness — Consideration por Surety’s Promise.</p> <p>When an existing debt is extinguished, or the date of payment postponed either expressly or by implication, in consideration of a note with surety being given, the contract is a new, substitutionary one, and is binding, resting for its consideration, so far as the surety is concerned, on the fact that without his promise the contract would not have been consummated.</p> <p>2. Bills and Notes <&wkey;226 — IndorsementConsideration.</p> <p>Where note operates expressly or by implication to extend payment of a pre-existing debt, or is accepted in payment thereof, and is indorsed contemporaneously with the execution and delivery of the note, the note is based upon a consideration as to the indorser.</p> <p>3. Bills and Notes <&wkey;226 — IndorsementConsideration.</p> <p>Where a debtor, being threatened with suit, executed note to trustee for creditors, who thereupon surrendered evidences of indebtedness, the note rests upon a good consideration as to indorser who indorsed note at time of its execution.</p> <p>other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

P. Almon, Judge. Allen Stokes was indicted for assault with intent to murder, convicted as charged, and sentenced to the penitentiary for a term of ten years. From the judgment, he appeals.

<p>Appeal from Circuit Court, De Kalb Coun~. ty; W. W. Harralson, Judge.</p> <p>Bill Taylor was .convicted of an offense, and he appeals.</p>

<p>1. Appeal and Error <S=o265(3) — Review— Findings — Exceptions.</p> <p>Under Code 1907, § 5359, as amended by Acts 1915, p. 824, the Court of Appeals will review the finding of the trial court on the evidence without an exception having been reserved thereto.</p> <p>2. Appeal and Error <&wkey;1012(l) — Review-Findings.</p> <p>When the evidence is given ore tenus, the finding of the court will not be disturbed unless the conclusion and judgment is plainly contrary to the great weight of the evidence, notwithstanding Code 1907, § 5359, as amended by Acts 1915, p. 824.</p> <p>3. Husband and Wife <®^19(3) — Liability of Husband — Neoessaries—Temporary Separation.</p> <p>A husband was liable for necessary medical attention rendered to his wife during childbirth, and to his minor children, one of whom was the child of which the mother was delivered, though, at time such services were rendered, the wife in the nervous state incident to pregnancy had temporarily left the husband, and had gone to her mother; such temporary separation not constituting abandonment.</p> <p><&=Wor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Criminal Law <&wkey;670 — Evidence—Showing of Materiality.</p> <p>Where materiality of testimony sought to be elicited by question on cross-examination as to whether it was his father’s custom, when witness was not in calling distance, to whistle between his fingers, was not apparent from question itself or from the evidence, or shown by statement of counsel, its exclusion was not error.</p> <p>2. Homicide &wkey;>116(3, 4) — Self-Defense — —“Afparent Imminent Peril.”</p> <p>To constitute a basis of apparent “imminent peril” as an element of self-defense, the circumstances must be such as to impress a reasonable man that he is in imminent peril of losing his life or of great bodily harm at hands of person slain, and defendant must entertain an honest belief that he is in actual danger when he strikes.</p> <p>3. Homicide i&wkey;300(15) — Self-Defense — Charge.</p> <p>A charge on self-defense pretermitting defendant’s freedom from fault and the duty to retreat was properly refused.</p>

<p>1. Criminal Law <&wkey;844(l) — Triaí>-Exceptions — Sufficiency.</p> <p>An exception, sufficiently definite to have directed the court’s attention to the principle announced in a part of the charge so that it could have been modified or changed, is sufficient.</p> <p>2. Intoxicating Liquors <&wkey;139 — Offense —Illegal Possession.</p> <p>The fact that whisky was placed on the premises of a soft drink establishment by a third party, with the owner’s knowledge, is not a violation of Acts 1915, p. 13, § 16, condemning the keeping or storing of prohibited liquors on the premises of a person engaged in selling beverages.</p> <p>3. Jury <&wkey;22(4) — Waiver of Trial by Court — Failure’ to Object.</p> <p>Failure of accused to object to trial by jury in a prosecution for violation of the prohibition law is a waiver of his right to trial by court in a misdemeanor prosecution, but on now trial such cause should be tried without a jury.</p> <p><5=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Criminal Law <&wkey;1086(12), 1144(11) — Review — Presumption—Presence of Defendant — Record.</p> <p>In all felonies, the record must affirmatively show that the defendant was present at the trial, verdict, and sentence; but where these were severally had, returned, rendered, and imposed on the same day, it affirmatively appears by fair inference that there was a continuity of the proceedings, and, it having been affirmatively stated that defendant was present in person and by attorney when the- verdict was returned, his continued presence will be presumed.</p> <p>2. Criminal- Law <&wkey;995(2) — Judgment-Asking Defendant Why Sentence Should Not be Pronounced.</p> <p>A judgment for felony, which fails to show that the defendant was asked by the court, if he had anything to say why the sentence should not be pronounced, was erroneous, and the sentence must be set aside; but, the defendant having been present when verdict was returned, the judgment of conviction may stand and defendant be properly sentenced.</p> <p>3. Burglary <&wkey;34 — Evidence — Proof of Goods that Were in Warehouse Burglarized.</p> <p>In a prosecution for burglary, it is competent to prove what goods or merchandise were in the warehouse burglarized, their description, and value.</p> <p>4. Criminal Law <&wkey;448(l) — Evidence — Conclusion.</p> <p>It is never error for the court to refuse to permit a witness to testify to a conclusion.</p> <p>(&wkey;>For other cases see same topic and KEY-NUMBER in «11 Key-Numberea Digests and Indexes</p>

<p>1. Evidence &wkey;j320 — Testimony Founded on Hearsay.</p> <p>Where testimony as to date of payment of assessment by insured itself showed that the witness had ascertained the information testified to from the official notice of insured’s death and the statement of insurer’s officers included in the proof of death, the testimony was properly excluded, being hearsay.</p> <p>2. Evidence <&wkey;244(5) — Admission against Interest — Action on Benefit Certificate —Proof of Death.</p> <p>In action on benefit certificate involving question of whether insured had forfeited membership, the proof of death prepared by insurer’s officers, acting within the scope of their authority, and reciting that insured was a member in good standing at the time of his death, was admissible upon the question of whether insured was a member in .good standing, being an admission against interest.</p> <p>. On Rehearing.</p> <p>3. Evidence <&wkey;265(2) — Admissions—Fraternal Insurance — Prima Facie Evidence-Membership in Good Standing.</p> <p>Proof of death prepared by insurer’s officers, acting within the scope of their authority and reciting that insured, at time of death, was a member in good standing, was prima facie evidence that insured at time of his death was a member in good standing, notwithstanding Acts 1911, p. 700, §§ 8, 20.</p>

An action by J. C. Dale against Robert E. McGraw, with garnishment against the Flake-town Graphite Company. Judgment against the garnishee, and it appeals.

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.</p> <p>Action by A. G. Goodwyn against the Birmingham Southern Railroad Company. Judgment for plaintiff and defendant appeals.</p>

Action by the People’s Shoe Company against the Ocean Steamship Company of Savannah. On certiorari the Supreme Court reversed a judgment of this court affirming a judgment in favor of plaintiff, and remanded the cause (81 South. 241, 202 Ala. 594).

1 Appeal from Circuit Court, Montgomery County; Leon McCord, Judge. Frank S. Vaughn was found guilty under an indictment charging that he did buy, receive, and conceal, or aid in concealing, certain stolen property, and he appeals.

Leigh, Jr., Judge. Charles Wassmuth was convicted of selling liquor in violation of law, and in addition to the fine and costs assessed by the jury the court sentenced him to hard labor for the county, and he appeals.

<p>1. Evidence <§=>12 — Judicial Knowledge-Population.</p> <p>The Court of Appeals judicially knows that the town of Brighton is a town of 1,502 population according to the last federal census.</p> <p>2. Animals <§=>50(1) — “Stock Law District.”</p> <p>A “stock law district” within Code 1907, § 4251, is a district in which stock is by law prohibited from running at large.</p> <p>3. Appeal and Error <§=>690(4) — Record — Admissibility op Evidence.</p> <p>Ruling on admission of ordinance in evidence will not be reviewed, where ordinance is not set out in bill of exceptions.</p> <p>4. Appeal and Error <§=>701(2) — Bill of Exceptions — Matters Presented.</p> <p>Where bill of exceptions does not purport to set out all the evidence, the refusal of requested charges is not properly presented for review.</p> <p>5. Animals <§=>55 — Damages—Pleading.</p> <p>In an action for damages done by defendant’s cow in plaintiff’s garden in a town, a stock law district, complaint was demurrable where it did not allege that defendant was a resident of said district, or was in said district at the time of the wrongs alleged.</p> <p><g^>For other cases see same topic and ICEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>6. Animals <@=48 — Running at Large — Liability for Injuries.</p> <p>Under the common law prevailing in Alabama, the owner of domestic animals may suffer them to run at large, and the owner of premises not properly inclosed is without remedy for resulting injury.</p> <p>7. Statutes <@=2.39 — Derogation oe Common Law — Strict Construction.</p> <p>Statutes in derogation of the common law are strictly construed.</p> <p>8. Statutes <@=231 — Construction—Codification.</p> <p>When doubt and ambiguity result from codifying a statute, the court will refer to the original enactment and give effect to its provisions as originally framed, notwithstanding a change in the phraseology, unless a clear intention is manifested to change its operation and effect.</p> <p>9. Animals <5=49 — Trespass — Common-Law Liability — Change by Statute.</p> <p>Act 1886-87, p. 67, providing that whenever two or more districts in which stock is prohibited from running at large lie adjacent and any stock passes from one into the other, said stock and the owner thereof shall be liable for damages, does not abolish the common law of the state applying to persons and property not residents, or situated within the stock law district.</p> <p>10. Animals <@=53 — Trespass—Common-Law Liability.</p> <p>So long as the law recognizes and protects the rights of a citizen to turn his domestic animals on the common, the exercise of that right cannot be made thé basis of personal liability, unless it is attended with negligence or wrongdoing.</p> <p>11. Animals <@=53 — Trespass—Common-Law Liability.</p> <p>Before the act of defendant in turning her cow on the common can be made the basis of personal liability, it must be shown that the general rule of law protecting such right has been abrogated by statute, or is not applicable to the territory wherein the act was done.</p> <p>12. Animals <@=97 — Trespass — Statutory Liability.</p> <p>To entitle one to recover damages under Code 1907, § 4251, he must show, either that his premises were .inclosed by a lawful fence, or were within a district wherein stock was prohibited by law from running at large, and that defendant turned his .stock at large in such district, or in an adjacent stock law district, or ■allowed his stock to run at large in a common inclosure within which more persons than one cultivated lands without the consent of all such persons.</p> <p><g=»Fo<- other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

I. Jones, Judge. Motion for summary judgment by the Underwood Typewriter Company against the Marengo County Bank. From judgment of nonsuit, movant appeals. Motion in the eourt below by appellant, for a summary judgment against the respondent under section 5938 of the Code.

<p>Appeal from Circuit Court, Jefferson County; J. O. B. Gwin, Judge.</p> <p>Bob Hardaman. was convicted of man-' slaughter in the first degree, and he appeals.</p>

<p>Exceptions, Bill oe @=56(4) — Signing—Indorsement.</p> <p>Though the bill of exceptions bore indorsements by the trial judge reciting that it was presented to him for signature, such indorsements did not establish a signing of the bill of exceptions, as required by Code 1907, § 3019, so the document cannot be considered as bill of exceptions on appeal; there being no other signature of the judge.</p>

<p>Champerty and Maintenance <@=37(1) — Adverse Possession oe Land Sold.</p> <p>Deed held insufficient to show title in grantee, who bad never been in possession of the j property as against third party, who had ad-' versely claimed and held property at time of conveyance.</p> <p><S=zaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Insurance <@=3723(2) — Life Insurance— Fraud of Insured.</p> <p>Fraud vitiates any transaction into which it enters, and frand on the part of insured will render the insurance contract void, without any ■express provision to that effect in the policy.</p> <p>2. Insurance <¡=3723(5) — Life Insurance — Statements as to Health — Warranties.</p> <p>Statements relating to the health and physical condition of an applicant for life insurance are material to the risk, and, if false, are fatal to the policy, being regarded as warranties, and, even where regarded as representations, may be made material by the terms of the contract, so as to avoid the policy if false.</p> <p>3. Insurance <S=»761 — Fraternal Benefit Insurance — Fraud Preventing Reinstatement.</p> <p>If insured, knowing he was not in good health, and without revealing his condition to his fraternal order, simply paid arrearages due to the order, concealing his information as to his health, it was such a fraud on the order as would prevent his reinstatement, unless the order had knowledge of his condition when it received or retained the money.</p> <p>4. Insurance <@=3-755(3) — Life Insurance-Waiver of Forfeiture or Its Avoidance.</p> <p>No waiver of a forfeiture or its avoidance .arises from acceptance or retention of a premium, unless the insurer at the time had knowledge of the facts authorizing the forfeiture or avoidance, and the mere opportunity to make an examination will not charge the insurer with knowledge of what examination would have disclosed.</p> <p>■5. Insurance <@=j763 — Fraternal Benefit Insurance — Fraudulent Reinstatement —Tender oe Premiums.</p> <p>Where insured defrauded his fraternal order in paying dues in arrears without revealing his impaired health, which he knew, it is immaterial to the order’s liability after insured’s death that it had not tendered back the amount paid by insured as dues subsequent to reinstatement, though it owes the money to insured’s legal representative, having retained it without full knowledge of the fraud. '</p> <p><@=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

; Suit by the Rawleigh Medicine Company against T. S. Herren and another. The action was dismissed as to unnamed defendant, and the named defendant appeals from the judgment rendered.

<p>Appeal from Circuit Court, Marion County; C. P. Almon, Judge.</p> <p>George Peoples was convicted of assault with intent to murder, and he appeals. On motion to strike the bill of exceptions.</p>

S. L. Brewer, Judge. Action by Carrie Vaughn against Ben Vaughn, as administrator of the estate of ■ Fred Vaughn, and the sureties on his bond as such • administrator. Judgment' for defendants, and plaintiff appeals.

W. Haralson, Judge. Houston Buckner was convicted of manslaughter in the second degree, and he appeals. The following charges were refused to the defendant: (1) If the jury believe all the evidence in this case, the defendant was not at fault in bringing on the difficulty.

<p>Appeal from Circuit Court, Calhoun County ; Hugh D. Merrill, Judge.</p> <p>Action by Sarah Walker, as administratrix, etc., against J. H. Wright and Harry Wright. From judgment for plaintiff, defendants appeal.</p>

<p>Pleading <@=o139'— Set-Off — Independent Tjransaction — Necessity of Plea.</p> <p>In a farm hand’s action against his employer for services rendered, in the absence of a plea of set-off, the court properly refused to submit to defendant’s «laim against plaintiff for care given by defendant to plaintiff’s sick brother at plaintiff’s request; defendant’s claim being a distinct and independent transaction, unrelated to the employment contract.</p> <p>c^tcoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Action in detinue by W. B. Simison, Jr., against Charles Howe, for the recovery of personal property. The cause was tried by the court without a jury, and judgment rendered for plaintiff. From this judgment, defendant appeals.

W. Ferguson, Judge. Action by Alice Hammons against the Empire Clothing Company and J. H. Upton for damages for an assault and battery. Judgment for plaintiff, and the defendant Empire Clothing Company appeals. Before the case went to trial the complaint was amended by striking J, H. Upton as a party defendant.

W. Haralson, Judge. Action by Bale Helms against A. L. Hale and others for wrongful'and malicious suing out of an attachment. Judgment for plaintiff, and defendants appeal. The action was on an attachment bond made by A. L. Hale as the basis of an attachment against Bale Helms for rent; the suit being in the sum of $150.

Brickell, Judge. Action by George McWilliams against the Louisville & Nashville Railroad Company on account for work and labor done. From a judgment for plaintiff, defendant appeals.

<p>1. Bailment <@=>28 — Tendee <&wkey;16(3) — Unauthorized Claim.</p> <p>Where there had been a modification of lease of furniture by lowering amount of monthly rental, and lessor notified lessee that he would not accept such lower rental, lessee would be under no duty to offer to pay any amount until lessor receded from demand for excessive amount and so notified lessee, and lessor, notwithstanding title remained in it, would not be entitled to institute suit for possession until expiration of lease period as fixed by terms of modified agreement.</p> <p>2. Evidence <&wkey;581 — Testimony at Former , Trial — Predicate. .</p> <p>Admitting- in evidence, over timely objection and exception, defendant’s testimony at a former trial, where no predicate had been laid for introduction, was prejudicial error.</p> <p>&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.</p> <p>Action by Lucy Walker against the Independent Order of Brothers and Sisters of Consolation on á policy of insurance. Judgment for plaintiff by default, and defendant appeals.</p>

<p>1. Appeal and Error <&wkey;882(8) — -Invited Error — Inquiry as to Evidence.</p> <p>A defendant, in an action on a note, who inquired about a mortgage executed by his codefendant to him, thereby inviting inquiry as to it, could not complain of its introduction in evidence by plaintiff, though it was immaterial.</p> <p>2. New Trial <&wkey;97 — Surprise by Evidence —Failure to Move por Continuance.</p> <p>A defendant is not entitled to a new trial because taken by surprise by certain testimony, where he made no motion for continuance or postponement of the trial.</p> <p>3. New Trial <&wkey;96 — Surprise by Testimony — Absence oe Showing oe Diligence.</p> <p>A defendant is not entitled to new trial because taken by surprise by certain testimony, in the absence of anything to show that he could not have learned of the testimony by using proper diligence before trial.</p> <p><&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Merrill, Judge. Austin G. Weldon was convicted of larceny, and he appeals. Defendant was indicted under five counts. Four of the counts charged embezzlement, and one charged grand larceny. The defendant was convicted under the larceny count, and from the judgment appeals.

<p>1. Intoxicating Liquoks &wkey;>233(2) — -Incriminating Evidence.</p> <p>In a prosecution for a violation of the prohibition law, a note found on top of 4% cases of beer found in defendant’s room, reading as follows: “Drank: Please put this beer in the lounge and make Elvira burn the boxes and go to sleep and don’t talk. B.” — was as much admissible in evidence, as a label on the bottle or a tag on the boxes, although it was not shown that it was written by the defendant or at his instance, or that he had anything to do with the placing of the note there, other than evidence to the effect that he had stolen the beer.</p> <p>2. Criminal Law <&wkey;673(l) — Limiting Effect of Evidence. .</p> <p>If evidence is admissible for any purpose,' complaint cannot be made of its admission, the only recourse of an objecting party being to request the court to limit the effect of the evidence by appropriate instructions.</p> <p>3. Criminal Law <&wkey;1120(9) — Matters Reviewable — Documentary Evidence.</p> <p>On appeal in a criminal case the court cannot say that the trial court erred in sustaining the state’s objection to the introduction of an alleged contract between accused’s brother and another, where the contract alleged to have been offered in evidence is not set out in the bill of exceptions.</p> <p>©=»For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes</p>

AY. Ferguson, Judge¡ Zeb Page was indicted on a charge of murder in the first degree, convicted of manslaughter in the first degree, and from the judgment he appeals.

W. Haralson, Judge. Action by W. N. Bain against Curtis Johnson, as administrator of the estate of Pat Bain and the sureties on his bond. Judgment for plaintiff, and defendants appeal.

B. Poster, Judge. Louis Martin was convicted of having carnal knowledge of girl between 12 and 16 years of age, in violation of Code 1907, § 7700,. as amended by Acts 1915, p. 137, and he appeals.

<p>Appeal from Circuit Court, Covington County; A. B. Eoster, Judge.</p> <p>’ • Action by J. J. Keefe against the Matthews Turpentine Company. Judgment for plaintiff, and defendant- appeals.</p>

P. Almon, Judge. f Action by Thomas Gantt against the Northern Alabama Railway Company, for damages for the killing of-a'dog, tried by the court without a jury. From a judgment for plaintiff, defendant appeals.

<p>Appeal from Circuit Court, Limestone County; Robert C. Brickell, Judge. • ,</p> <p>Marshall Carroll was convicted of a crime, and be appeals.</p>

Petition of W. G. Tyler for mandamus to be directed to Hon. Romaine Boyd, requiring him to set aside an order granting a rehearing in the case of W. G. Tyler against Mrs. M. S. Williams.

<p>1. Corporations <&wkey;62 — Stock — Preferred Stock — Statutory Provision — “Capital Stock.” ’</p> <p>The purpose of Code 1907, § 3479, providing for the issue of preferred stock, but “in no case exceeding two-thirds of the capital stock paid for in cash or property,” is to limit issue of preferred stock; the word “capital stock” meaning “common stock,” and not preferred stock.</p> <p>[Ed. Note. — For other definitions,' see Words and Phrases, First and Second Series, Capital Stock.]</p> <p>2. Corporations <&wkey;S8 — Subscriber to Stock — Overissue — Recovery of Price Paid.</p> <p>A purchaser of preferred stock issued in a greater proportion of the common stock paid for in cash or property than was authorized by Code 1907, § 3479, can recover as for money had and received from the corporation on the ground of want of consideration for the money paid.</p> <p>-iteoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Zach Benjamin was 'convicted of larceny, and he appeals. The goods were laid as to title in the Louisville & Nashville Railroad Company, and the contention is that the title should have been laid in the United States government or William G. McAdoo, Director General. The defendant was indicted under an indictment containing two counts; the first for grand larceny, the second for receiving stolen property; and upon the trial there was a general verdict of guilty.

<p>1. Sales &wkey;>85(3), 168%(10> — Contracts — Construction.</p> <p>Where plaintiff shipped to defendant one-half a barrel of boiler compound under an agreement that a 99-day trial should' be given, and, if unsatisfactory, the same should be returned and no charges made, defendant was bound to make the 90-day test, and, as the compound had to be consumed in making the test, defendant, where it proved' unsatisfactory, was not liable for any charges or to return the compound, though the whole was consumed.</p> <p>2. Trial <&wkey;256(2)~--Instructions — Request.</p> <p>Where a charge was not erroneous, though it might have been misleading, a party, if not satisfied with it, must ask an explanatory charge in order to predicate error thereon.</p> <p><S=^For other cases see same topic and KEY-NUMBEE in all Key-Numbered Digests and Indexes</p>

B. Poster, Judge. Action by Ester Boyette against the Benton Mercantile Company in trover, conversion, and detinue. Judgment for the plaintiff, and defendant appeals.

<p>Appeal from Circuit Court, Morgan County ; Robert C. Bricked, Judge.</p> <p>Action by J. M. Phillips against J. M. Hartselle. Prom judgment for defendant, plaintiff appeals.</p>

<p>Carriers @=136 — Injuries by Fire — Action —Affirmative Charge.</p> <p>In suit for damages for loss by fire of wood awaiting shipment along defendant’s railroad, the court erred in refusing a general affirmative charge requested by defendant, where plaintiff failed to prove his allegations that defendant promised him cars to transport the wood, and that relying thereupon he placed such wood along the tracks.</p>

<p>1. Criminal Law <&wkey;2G0(7) — Appeal to . County Court — Record—Return oe Original Warrant.</p> <p>If the original warrant, sworn to before a justice of the peace, charging defendant with offense of carrying a concealed weapon, was made /returnable to county court, the fact should have been shown by the record on appeal to circuit court, as otherwise no jurisdiction of the case was shown to have been vested in county court.</p> <p>2. Criminal Law <&wkey;260(7, 13) — Appeal erom County Court to Circuit Court-Record — Trial De Novo.</p> <p>Upon appeal from a conviction in the county court to the circuit court, the record should disclose that the necessary steps have been taken to perfect the appeal, as prescribed by Code 1907, § 6725, and thereupon the' trial in circuit court should be do novo and without indictment and presentment by the grand jury.</p> <p>3. Criminal Law <&wkey;2G0(13) — Appeal — Statement oe 'Cause oe Complaint.</p> <p>Where the solicitor did not make a brief statement of the cause of complaint, signed by him, etc., in the circuit court, as required by Code 1907, § 6730, it was error, unless sucia statement was waived, to place defendant upon trial in circuit court on appeal from a conviction in the county court.</p> <p>4. Criminal Law <&wkey;69G(3) — Appeal — Assignment oe Error — Exclusion oe Evidence.</p> <p>The proper practice is to assign as grounds the failure of evidence to establish a prima facie ease, and where no grounds are assigned, the court should not be put in error for overruling defendant’s motion to exclude the evidence.</p> <p>(gs^For other cases see sasio topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Action by A. Z. Oberhaus against Sam Brawley, in which the J. Zimmern’s Company was garnished. From a judgment of the inferior civil court of Mobile, the garnishee appealed, and from a judgment of the circuit court the garnishee again appeals. .

<p>Appeal from Circuit Court, Pike County; A. B. Foster, Judge.</p> <p>'Hattie Cannon was convicted of grand larceny, and she appeals.</p>

• Appeal from Circuit Court, Barbour County ; J. S. Williams, Judge.

P. Almon, Judge. Action by T. B. King against the Dearing-Orman Mercantile Company. From an order purporting to set aside a judgment of the court, and granting new trial, plaintiff appeals.

<p>1. Agriculture <&wkey;6 — Mutual Co-operative Associations.</p> <p>A corporation to be protected by Acts Sp. Sess. 1909, p. 168, relating to the incorporation of mutual co-operative societies and associations for farming and trucking purposes, must be within its letter, and it will not bo protected if, after a consideration of the entire charter, it appears that its powers as therein set out are so broad as to authorize it to engage in business of a general nature not authorized by the act, and it is immaterial that there is a statement in the articles of incorporation that “this corporation is not organized for pecuniary profit.”</p> <p>2. Agriculture <&wkey;6 — Mutual Co-operative Associations.</p> <p>A corporation cannot be organized under Acts Sp. Sess. 1909, p. 168, relating to agricultural associations and providing for the incorporation of mutual co-operative societies for farming and trucking purposes, where the charter gives it the power “to buy, sell, lease, mortgage, hypothecate and deal generally in both real and personal property,” and to own, buy, sell, lease, operate, maintain, and construct packing and warehouses and other buildings, and to lease, and operate sawmills and paper mills and box factories, etc.</p> <p>3. Agriculture <&wkey;6 — Mutual Co-operative Associations — Power as Business Corporation.</p> <p>Where an attempt to organize a corporation under Acts Sp. Sess. 1909, p. 168, relating to the incorporation of mutual co-operative societies and associations for farming and trucking purposes and for the exemption of.the same from all corporate taxation and licenses, failed' by reason of the wide powers given under its charter, the corporation was nevertheless entitled to conduct its business as provided in its charter under the general laws of the state, if it complied with Code 1907, § 3445- et seq.</p> <p>4. Corporations &wkey;>55 — By-Laws — Ultra Tires.</p> <p>A by-law of a corporation, not authorized by its charter, is ultra vires and void.</p> <p>5. Monopolies <&wkey;17(2) — Corporation—ByLaws.</p> <p>A by-law of a corporation, that “a member of the corporation selling his produce to any person other than the regularly authorized agent of the corporation, shall pay 3 per cent, of his gross sales into the treasury of the corporation,” is unenforceable, being in restraint of trade.</p> <p>(®=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Mobile County; SafCold Berney, Judge.</p> <p>Action by R. A. Myles & Co. against the A. D. Davis Packing Company and [another. Judgment of nonsuit, and plaintiffs appeal.</p>

<p>1. Appeal and Error i&wkey;634, 766 — Record , —Construction.</p> <p>In action by sellei" of two jennets on purchase-money note, where buyer alleged that the jennets were not “in fold” by a horse so as to bring forth mule colts as guaranteed by seller, the term “in fold,” used in record and briefs, will be construed to mean “in foal,” since it could have no other intelligent meaning.</p> <p>2. Appeal and Error <&wkey;634, 766 — Record-Construction — “Jennies.”</p> <p>In action on note given for part purchase price of two jennets alleged by defendant to have been guaranteed to be in foal at time of sale, the word “jennies” as used in record and briefs, will be taken to mean the female of an ass, and not a machine for spinning cotton thread, in view of nature of case.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Jenny.]</p> <p>3. Evidence <&wkey;472(l) — Witnesses <&wkey; 240(8) — Leading Question — Conclusion op Witness — Invasion op Jury’s Province.</p> <p>A question that was leading, that invaded the province of the jury, and that called for a conclusion of the witness was properly disallowed.</p> <p>4. Appeal and Error <&wkey;882(10) — Review-Invited Error.</p> <p>A party cannot invite action by the court by objection to testimony and assign court’s action in sustaining objection as error on appeal.</p> <p>5. Evidence i&wkey;500 — Opinion Evidence —Question—Characteristics op a Jennet.</p> <p>In action by seller of two jennets upon purchase-money note, where defense was that the jennets were impregnated by a “jack” instead of being in foal by a horse as guaranteed, question of “how is a jennet about breeding a horse?” for purpose of showing that a jennet which would accommodate a horsed was of greater value than one who refused to so do, was properly excluded, where evidence did not show that the jennets sold would not take a stallion; the question being inappropriately framed, and not being confined to the jennets in question.</p> <p>®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

B. Foster, Judge. Suit by John L. Holloway and another against the Henderson Lumber Company for 'the statutory penalty for cutting trees and for damages for trespass quare clausum fregit, and plaintiff recovqyed judgment in the sum of one cent, together with all the costs expended in that behalf. Plaintiff appealed from the judgment for insufficient damages, and defendants file a cross-appeal against the judgment for costs for more than one cent.

E. Blackwood, Judge. Edd Holcombe was convicted of assault with intent to murder, and appeals. Mr. Turley was asked: “Did the defendant say to you that this is the spirit level that he used on Bellah, or that he hit Mr. Bellah with?” The defendant objected on the grounds that it was leading, that it called for immaterial, irrelevant, incompetent, and illegal evidence, and that it called for a declaration of the defendant before the defendant was put on the witness stand.

P. Almon, Judge. Joe Tyra was indicted on two counts for burglary and grand larceny. He was convicted on the burglary count, and from tlie judgment he appeals.

Loyd Tate, Judge. Brice Brock was convicted of grand larceny, and he appeals.

<p>Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge.</p> <p>Action by W. B. Faust against the Central of Qeorgia Railway Company. Judgment for plaintiff, and defendant appeals.</p>

Action by Wilbur E. Beasley against James. S. Dowdell and another for damages for injuries sustained in a collision with an automobile of the defendants. Judgment for plaintiff, and defendants appeal.

<p>1.. Animals <&wkey;44 — Killing Animals — Knowledge or Notice op Vicious Propensities.</p> <p>In an action for killing a dog, in which defendant pleaded justification of necessity in order to protect his guineas from harm, whether plaintiff had knowledge or notice of his dog’s vicious propensities is not material.</p> <p>2. Animals &wkey;>4&wkey;AcTioN for Killing Animal — Plea op Justification — Reasonable Cause op Belief.</p> <p>In an action for damages for killing a dog worrying defendant’s guineas, it is essential to justification, on the ground of necessity to kill to save his own property from harm, that defendant had reasonable cause to believe that such necessity existed.</p> <p>3. Animals <&wkey;52 — -Killing op Animals— Knowledge of Vicious Habits by Owner.</p> <p>Where killing of dog was sought to be justified on the ground he was a nuisance, under Code 1907, § 6236,' as a dog suffered to run at large by owner knowing of his tendency to worry or kill domestic fowls, knowledge or notice on the part of the owner of the vicious habits of the animal is a material inquiry, unless the animal is such as that the law charges him with notice of its vicious tendencies.</p> <p>4. Animals <&wkey;52 — Nuisance — Dog Running at Large.</p> <p>Where defendant’s killing of dog is sought to be justified on ground that he was a nuisance because suffered to run at large in violation of Code 1907, § 6236, the question of the relative value of the dog to the property of defendant, which the dog was injuring, is not material; the law attaching no value to a thing that is a common nuisance.</p> <p>5. Animals <&wkey;44 — Killing Animal — Affirmative Charge — Malice.</p> <p>An affirmative charge could properly be given for defendant on counts charging that his act in killing plaintiff’s dog was malicious, where there was no evidence showing that the defendant or his servant knew who was the dog’s owner, or that the act of killing the dog was prompted by malice toward the owner.</p> <p>6. Master and Servant <&wkey;332(2) — Action for Killing Animal — Servant’s Authority-Affirmative Charge.</p> <p>Defendant was not entitled to an affirmative charge on the theory that if plaintiff’s dog was not one of those dogs in the habit of worrying defendant’s fowls, defendant’s servant acted without authority in killing the dog, in view of defendant’s testimony that he delegated to his servant the authority to determine whether the dog in question was,one of the dogs habitually worrying Ms fowls.</p> <p>7. Animals <&wkey;44r — Action for Killing Animal-Question for Jury.</p> <p>In an action for damages for killing a dog worrying defendant’s fowls, whether it was necessary to kill the dog to save the fowls, whether the dog had vicious habits rendering it a common nuisance, and whether plaintiff had notice of such vicious habits, held for the jury.</p> <p><@s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Ferguson, Judge. Action by J. T. Carlton against D. Simonetti for damages for maintaining nuisance. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge.</p> <p>Paul Morrill and others were convicted of manufacturing spirituous liquors contrary to lawq and they appeal.</p>

P. Almon, Judge. Henry Arnett was convicted of manufacturing spirituous, vinous, and malt liquors contrary to law, and he appeals.

<p>Appeal and Error <&wkey;123 — “Final Judgment” — Nonsuit.</p> <p>A judgment which, after reciting the rulings on motion affecting the pleadings, stated that thereupon plaintiff asked for and was granted a nonsuit with bill of exceptions, was not a final judgment within Code 1907, § 2837, from which an appeal can be taken.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Final Judgment.]</p> <p><8=^For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Clay County; A. H. Alston, Judge.</p> <p>Action in assumpsit by F. D. Pruet against A. J. Glenn and others. From a judgment fot plaintiff, defendants appeal.</p>

<p>Appeal from Circuit Court, Madison County; Robert C. Brickell, Judge.</p> <p>Charles Spurlock was convicted of grand larceny, and he appeals.</p>

<p>1. Criminal Law <&wkey;807(l) — Trial — Instructions.</p> <p>In a prosecution for larceny of cheese, the court properly refused, as a mere argument, a charge that if accused was employed by H. and at time he put the cheese on the wagon did so under instruction or direction of a person over him, and did so openly and notoriously, a strong presumption arises that there was no guilty intent to deprive the owner of the use thereof, which must be rebutted by strong and convincing evidence to the contrary before a conviction will be authorized.</p> <p>2. .Criminal Law <&wkey;958(3) — New Trial —Newly Discovered Evidence — Necessity for Diligence.</p> <p>Accused cannot complain of tlie denying of a motion for new trial based on newly discovered evidence, where the motion nowhere disclosed that by due diligence the evidence could not have been produced upon the trial.</p> <p>©zaT?or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

W. Burkett, Judge. Action by Annie Cotton against Neil Gamble to obtain the custody of a child. From a judgment in favor of the former, the latter appeals.

<p>1. Intoxicating Liquors t&wkey;241 — Appeal-Different Charge in Complaint. .</p> <p>- Where prosecution was begun -by affidavit in county court, charging defendant with manufacturing liquors, and defendant was convicted and appealed to the circuit court, in which court the solicitor filed a complaint charging the' same offense, defendant cannot complain that the charge in the circuit court was a different charge from the one in the county court.</p> <p>2. -Criminal Law <&wkey;670 — Harmless Error —Exclusion of Evidence.</p> <p>Defendant in a criminal case cannot complain of the sustaining of an objection to a question, an answer to which might or might not have been rendered legal, where he did not state what he expected the witness to answer.</p> <p>cgssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

P. Almon, Judge. Victor Corkran was convicted of violating the prohibition laws, and he appeals. The evidence tended to show that the defendant maintained a small outfit consisting of a carbide eán, holding about 12 gallons, a wooden cap, and a copper pipe measuring about 14 inches, and that he attempted to make one or two runs, but that he got no further than the singlings, and that was not whisky, and not. fit to drink.

<p>Appeal from Circuit Court, Elmore County; Leon McCord, Judge.</p> <p>Suit by the Southern Cotton Oil Company against B. T. Howie and J. Z. Moore for breach of warranty as to title to a certain carload of cotton seed. Judgment for defendants, and plaintiff appeals.</p> <p>The facts in the case seem to be that the plaintiffs received by freight a carload of cotton seed for which they paid $30 pefi ton, and that these seed were consigned to them at Electic, Ala., to be delivered at Union Springs, where they were delivered; the dispute arising over the fact as to whether the defendants in this suit were purchasing as agents of the defendants or whether the defendants here bought straight out from Graham and consigned the seed to plaintiff as sellers of the seed, and as to these matters the evidence was in sharp conflict. In the meantime, and after the seed were delivered and paid for, Ross Barton, Jr., brought suit in the circuit court of Tallapoosa county against both the plaintiff and defendants in this suit for the conversion of the particular carload of cotton seed involved here and recovered a judgment against both the plaintiff and defendant in this suit, which the plaintiffs in this suit have paid under execution in the hands of the shferiff, and for which they now seek recovery against the defendant.</p>

<p>1. Bills and Notes <&wkey;503 — Evidence—Admissibility.</p> <p>In bank’s action on a note which it claimed had been given in return for the bank having paid a debt of defendants, evidence that bank had placed certain amount to credit of defendants’ creditor is admissible.</p> <p>2. Bills and Notes &wkey;>501 — Evidence—Admissibility.</p> <p>In bank’s action on a note claimed to have been given in return for the bank paying defendants’ creditor, evidence regarding the value of certain cotton which defendants claimed to have delivered to the creditor in part payment held inadmissible.</p> <p>3. Bills and Notes <&wkey;501 — Evidence—Admissibility.</p> <p>In bank’s action on a note given in return for the bank paying defendants’ creditor, evidence that there was no written agreement with reference to certain cotton which defendants claimed to have delivered to their creditor in part payment held admissible.</p> <p>4. Bills and Notes <&wkey;501 — Evidence—Admissibility.</p> <p>In bank’s action on a note given in return for the bank paying defendants’ creditor and in which defendants claimed to have delivered certain cotton to the creditor in part‘payment, evidence that any such transaction was with the. creditor, and not with the bank, held admissible.</p> <p>5. Appeal and Ebroe &wkey;690(2) — Assignment of Ebeob — Evidence.</p> <p>Assignment that court erred in overruling an objection to a question will not be considered, wh'ere record does not indicate that question was answered.</p> <p>BER in all Key-Numbered Digests and Indexes cS=>For other eases see same topic and KEY-NUM</p>

L. Sowell, Judge. Assumpsit by J. L. Gallagher against Perry & Walden. Judgment for plaintiff, and defendants appeal.

<p>1. Waters and Water Courses <&wkey;179(6)— Damages from Elowage — Directed Verdict.</p> <p>Where there was evidence from which the jury could find that defendant made deposits in the creek and damages from overflow resulted to plaintiff’s land, the afiirmative charge requested by defendant was properly refused, though there was no evidence showing what portion of damage was done by the deposits made in the creek by the defendant, or by those made by others.</p> <p>2. Waters and Water Courses <&wkey;179(5)— Damages from Elowage — Instructions— Amount.</p> <p>Where there was evidence sufficient to justify a finding of permanent injury to plaintiff’s land, a requested charge that the jury could find against defendant only for nominal damages was properly refused.</p> <p>3. Waters and Water Courses <&wkey;179(4)— Elowage — Damages—Evidence.</p> <p>Where there was evidence that plaintiff’s crops for the year prior to the suit were damaged as a result of deposits in the creek by the defendant, but no evidence as to the value of the crops, it was error to refuse a requested charge that no damages could be awarded for injury to the crop during that year.</p> <p>4. Appeal and Error <&wkey;1067 — -Harmless Error — Refusal of Charge.</p> <p>Where there was a general verdict for plaintiff, error in refusing á requested charge that damages could not be awarded for one item claimed by plaintiff cannot be held harmless.</p> <p><§zmFor other cases see same topic and KEY-NUMBER in ali Key-Numbered Digests and Indexes</p>

<p>1. False Pretenses &wkey;>38 — Indictment—Variance.</p> <p>An indictment charging that accused by certain false pretenses obtained $500 is not sustained by proof that he secured a cheek for $500.</p> <p>2. False Pretenses <&wkey;12 — Elements — Title.</p> <p>In prosecution for obtaining property by false pretenses, the injured party must have had general or special title in the property secured by accused.</p> <p>3. False Pretenses <&wkey;22 — Repayment—Effect.</p> <p>The offense of obtaining property by false pretenses is Complete when the property is obtained, and a subsequent restoration or repayment is no defense.</p> <p>(SSsaFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Jefferson County ; C. W. Ferguson, Judge.</p> <p>John McKenney was convicted of murder in the second degree, and he appeals.</p>

A. Pearce, Judge. The defendants, Luther Follies and Joe Baxley, were jointly indicted and tried for the murder of S. P. Saunders by shooting him with a gun, convicted of murder in the second degree, and they appeal. The facts in reference to the juror Hall sufficiently appear.

<p>Appeal from Circuit Court, Morgan County ; O. Kyle, Judge.</p> <p>Edgar Fennell was convicted of larceny, and he appeals.</p>

<p>1. Judgment <&wkey;474^CouRTs of Chan ceuy— Suits to Sell Land fob Nonpayment of Taxes.</p> <p>In suits by a city to sell land for the nonpayment of taxes, the chancery court is exercising limited and special jurisdiction, and its decrees stand on the same footing as those of courts of limited and inferior jurisdiction.</p> <p>2. Municipal Cobpobations <&wkey;978(10)— Suits to Sell Land fob Nonpayment of Taxes — Decrees.</p> <p>A decree of a chancery court in a suit by a city to sell land for nonpayment of taxes need not set out all the evidence which induced the court to render the same, nor recite in terms that the court was satisfied by the evidence of all facts averred whielkwere necessary to support it.</p> <p>3. Judgment <&wkey;470 — Collateral Attack —Presumption .</p> <p>In a collateral proceeding, a court is required to hold that a chancery court was justified by the evidence before it, in a proceeding to soli land for nonpayment of taxes, in reaching the conclusion that the land in question was liable for taxes on a certain date, in the absence of proof to- the contrary.</p> <p>4. Judgment <&wkey;497(l) — Collateral Attack —Recitals.</p> <p>In a collateral proceeding, all recitals of fact relating to matters of jurisdiction in a decree of chancery court, in a proceeding to sell land for nonpayment of taxes, must be taken as true, In the absence of evidence to the contrary.</p> <p>5. 'Covenants <&wkey;127(4) — Purchasing Outstanding Title.</p> <p>A grantee in a deed containing a covenant warranting the title free from all incumbrances may purchase an outstanding title or incumbrance, and is entitled to recover from the grantor the reasonable price he has fairly and of necessity paid for same.</p> <p>6. Covenants <&wkey;108(l) — Defenses.</p> <p>It was no defense, in an action by a grantee to recover damages for the breach of a covenant warranting the title free from all incumbrances, that, subsequent to the delivery of the deed, the land was mortgaged to the grantor; the mortgage containing a covenant against incumbrances, and mortgage debt having been paid, in view of Code 1907, § 4899.</p> <p>7. Mortgages &wkey;>298(4) — Title to Property —Effect of Payment.</p> <p>A mortgage of real estate is a conveyance with a condition subsequent, and the payment of mortgage debt, either before or after the law day of the mortgage, reinvests the mortgagor with the title to the property; ' the rights of the parties thereafter being determined as though there had been no mortgage.</p> <p><§r^>For other eases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes</p>

W. Haralson, Judge. Action by H. H. Killian against the Alabama Great Southern Railroad Company for damages for maintenance of a . nuisance. From a judgment for plaintiff, defendant appeals.

<p>1. Sales <&wkey;262 — Representations — Warranties.</p> <p>Representations, in order to amount to a warranty, must be relied upon by purchaser.</p> <p>2. Sales <&wkey;246 — “Warranty.”</p> <p>A warranty is a collateral undertaking forming a part of the contract by the agreement of the parties, express or implied.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Warranty.]</p> <p>3. Sales &wkey;^246 — Antecedent Representations — Warranties. ,</p> <p>Antecedent representations made by seller as an inducement to buyer, but forming no part of the contract when concluded, are not warranties, but where, by agreement of parties, they enter into and form a part of the contract of sale, they are warranties.</p> <p><&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>4. Exchange of Property <&wkey;13(3) — Warranty — Burden of Proof.</p> <p>Defendant, pleading indebtedness by plaintiff by reason of breach of warranty made in exchange of mules, has burden of proving the existence of warranty and breach thereof.</p> <p>5. Trial <&wkey;260(l) — Requested Instructions.</p> <p>Refusal of requested charge was not reversible erroi', where the subject-matter was adequately covered by the oral charge.</p>

<p>1. Receiving Stolen Goods <&wkey;8(3) — Complicity in Offense — Sufficiency of Evidence.</p> <p>The fact that a witness was acting under the direction of another person in hauling quantities of goods from a freighthouse to places not controlled or owned by such person, and delivered them to other parties without asking any questions, was sufficient facts from which a jury could draw the conclusion that the witness was in a conspiracy with the other two, who were stealing such goods.</p> <p>2. Criminal Law <&wkey;510 — Accomplices — Necessity for Corroboration.</p> <p>A conviction for a felony cannot be had on the' uncorroborated testimony of three accomplices, under Code 1907, § 7897.</p> <p>3. Receiving Stolen Goods <&wkey;6 — Accomplices.</p> <p>One who hauled goods from a freight depot for another with knowledge that the same had been stolen was an accomplice of both the one who stole' the goods and one who received them.</p> <p>4. Larceny i&wkey;27 — Persons Liable.</p> <p>The crime of “larceny” is the felonious taking and carrying away of chattels, and every person who, with a guilty knowledge, aids and abets in. the taking and carrying, is guilty of larceny and of every crime committed in the' furtherance of the common purpose.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Larceny.]</p> <p>5. Criminal Law <&wkey;511(l) — Corroboration of Accomplice — Sufficiency of Evidence.</p> <p>In a- prosecution for receiving stolen goods, evidence in corroboration of accomplice held insufficient to sustain a conviction. .**</p> <p>6. Criminal Law >&wkey;780(2) — Trial — Instructions.</p> <p>In a prosecution for receiving stolen goods, where it was a question for the jury whether a witness for the state was an accomplice and there was not sufficient evidence to corroborate such witness, if he was an accomplice, the court did not err in refusing to give the affirmative charge, but did err in refusing to charge that defendant should be acquitted if the jury should find that the witness was an accomplice.</p> <p><&wkey;For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes</p> <p>7. Criminal Law i&wkey;427(4) — Conspiracy-Admissibility op Evidence.</p> <p>A wide latitude is allowed in proving conspiracy to commit a crime, extending to everything said, done, or written by any one of the conspirators in the execution or furtherance of their common purpose.</p> <p>8. Criminal Law <&wkey;372(l) — Evidence — Other Offenses.</p> <p>In a prosecution for receiving stolen goods, a conspiracy being charged, it was proper for the court to admit evidence of the delivery of other goods to the defendant, stolen at or about the same time as the goods charged from the same place and by the same parties, and also evidence that other property was stolen from the same place by the same parties at about the same time.</p> <p><gzs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes .</p>

<p>Appeal from Circuit Court, Jefferson County ; J. C. B. Gwin, Judge.</p> <p>Henry Reims was convicted of violating the tick law, and he appeals.</p>

B. Smith, Judge. , Action by D. F.' Faireloth against Charles and Lena Capri in assumpsit. From a judg? ment for the plaintiff, the defendant Lena Capri appeals. The evidence tended to show that one Thrasher called at the storehouse of Lena Capri in the city of Birmingham and saw Charles, the husband of Lena, and asked him if he did not want to bny a house and lot. situated just across .the street from their storehouse.

<p>Appeal from Circuit Court, Jefferson County ; C. W. Ferguson, Judge.</p> <p>Action by George H. Dupree against the Travelers’ Insurance Company. Judgment for plaintiff, and defendant appeals.</p> <p>The facts sufficiently appear. The following written charges were refused to the defendant:</p> <p>Assignment 2. If you believe from the evidence that the plaintiff was the physical aggressor and struck the first blow in the encounter between him and Mr. Harper, it is your duty to return a verdict in favor of the defendant, although you may also believe from the evidence that before plaintiff struck said Harper said Harper cursed and abused the plaintiff.</p> <p>Assignment 3. If you believe from the evidence that plaintiff would not have been injured .had he not struck Harper, and that the striking at Harper by plaintiff was the direct and sole cause of the struggle' in which plaintiff was injured, you must find for the defendant.</p> <p>■ Assignment 6. The court charges you that, if you believe from the evidence that Mr. Harper went to plaintiff’s office and without cause or reason abused and cursed the plaintiff, 'yet if you further believe from the evidence that plaintiff was the physical aggressor and struck the first blow in the encounter which followed, and that during the said encounter he was injured, you must find for the defendant.</p> <p>The following excerpts from the court’s oral charge were excepted to:</p> <p>“If you believe that Harper committed this assault on Dupree or was advancing on him in a threatening manner as if to attack him, why, then, if the circumstances were such as to impress a reasonably prudent man with the belief that he was about to attack, taken in connection with the words Harper is said to have used towards Dupree, then it is for you to say whether or not Dupree under these circumstances was acting in self-defense when he resisted that.”</p> <p>And:</p> <p>“Or if he was acting in self-defense, and this injury was received by him falling against the safe and breaking two or three ribs and an arm, if you believe he injured or broke his arm while resisting the alleged threatening advance of Harper on him at the time, then it may be said that the injury received was accidental.”</p> <p>And:</p> <p>“But it is insisted by the plaintiff, however,' that his statement while on the stand as a witness ii? a true version of the facts in this case.”</p>

W. Ferguson, Judge. Action by Ida Belle Canter against F. O. Harris for damages for unlawfully issuing a warrant against plaintiff. Judgment for defendant, and plaintiff appeals.

L. Sowell, Judge. Action by Mrs. Ada Elliott against the Illinois Central Railroad Company for dam- ages for injury to land by overflow.

B. Heflin, Judge. J. Morgan Flowers was convicted of violating an ordinance of the City of Birmingham, and he appeals. The information was laid in five counts, each charging a violation of the prohibition law; the first of section 2, Ordinance No. 325-C approved October 8, 1915, and published October 9, 1915, but the ordinance is not set out. Count two charges a violation of section 4 of the ordinance above referred to, but the ordinance is not set out.

<p>Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.</p> <p>Norman Evans was convicted of assault with intent to murder, and he appeals.</p> <p>The original record contained no judgment. In response to the first certiotari, the clerk of the trial court forwarded the judgment containing the presently important words:</p> <p>“Wo, the jury, find the defendant guilty of an assault to murder as charged in the indictment. It is therefore considered and adjudged by the court that the defendant is guilty of an assault to murder as charged in the indictment.”</p> <p>This judgment bears date July 30, 1918. At a special session of the court convened on April 1, 1919, the state moved the court to amend the judgment nunc pro tunc, alleging that the clerk made a mistake or clerical error in the said minutes and judgment, as is shown by the memoranda or bench notes of the court (setting out the judgment as above set out).</p> <p>It was agreed that the verdict returned by the jury was lost and' could not be found. The bench notes were as follows:</p> <p>“July 31, 1938, jury and verdict guilty of an assault with intent to murder, notice of appeal by defendant,”</p> <p>—and the appeal bond. The objection interposed was, briefly, that the term of the court at which the judgment was rendered had adjourhed prior to the date of the filing of the application and prior to the date of the hearing of same, that the recital of the minute entry is the best evidence of the verdict of the jury, and that the memoranda or bench notes are insufficient to permit an amendment to the verdict of the jury as shown by the minute entry, and that the proceedings at once contradict or vary the terms of the verdict of the jury as shown by the minute entry.</p> <p>The following charge was given at the request of the state :-</p> <p>1. The defendant is interested in the result of the verdict of the jury, and in weighing his ’evidence the jury may consider his evidence in the light of his interest, together with all the evidence in the case.</p> <p>The following is charge 4, refused to the defendant:</p> <p>The burden is on the state to convince you beyond the reason of a doubt that the defendant committed the offense as charged in the indictment, and that at the time he was mentally capable of forming the intent; and if the state has failed to so convince you, then you cannot convict the defendant of an assault to commit murder.</p> <p>Charges 5 and 6 were charges on the presumption of innocence.</p>

<p>Food <&wkey;5 — Milk Ordinance — “Milk’ ’ — “Skimmed Milk.”</p> <p>Birmingham City Code, e. 313, § 337, defining adulterated milk and prohibiting its sale, etc., is unaffected by section 340, making different provisions as to skimmed milk, since “milk” means the unadulterated fluid, while “skimmed milk” means milk with butter fat extracted.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Milk.]</p> <p>©soFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Usury <&wkey;114 — Evidence—Materiality.</p> <p>In action by mercantile company on a note, one defense being usury, court did not err in sustaining objections to questions as to whether or not plaintiff had charged 10 per cent, extra on bills to carry them to the fall, and had a cash price, etc., where it had not been shown that the note sued on was secured for the payment of goods sold by the mercantile company, although such questions would have been proper if it was shown that the note was given for goods.</p> <p>2. Evidence <&wkey;471(6) — Conclusions of-Witness.</p> <p>The court properly sustained an objection to a question, “Now, at the time this mortgage was given, was there any conversation or .any definite promise to pay that old indebtedness?” same calling for a conclusion.</p> <p>3. Bills and Notes <&wkey;4S9(4) — Pleading — Issues — Evidence.</p> <p>In an action on a note the court did not err in sustaining objection to the question, “Was this phrase ‘All past-due indebtedness’ on the mortgage at the time you signed it?” there being no plea of non est factum.</p> <p>4. Evidence &wkey;?177 — Receipts — Carbon Copies.</p> <p>Where receipts were admitted in evidence, carbon copies thereof were admissible to show whether any changes had been made.</p>

<p>Appeal from Circuit Court, Marion County ; C. P. Almon, Judge.</p> <p>Lawyer Poore was convicted of V. P. L., .and appeals.</p>

' Appeal from Circuit Court, Mobile County; Norvílle R. Leigh, Jr., Judge. B. Goldberger was convicted of a violation of a city ordinance of the city of Mobile prohibiting the sale of liquors, and he appeals.

<p>1. Witnesses <&wkey;240(4) — Leading Questions.</p> <p>In a prosecution for assault to murder, a question by defendant’s counsel to defendant, “And Mr. S. jumped on you and gave you a licking?” was a leading question.</p> <p>2. Criminal Law <&wkey;448(2) —Conclusions oe Witness.</p> <p>In a prosecution for assault to murder, a question by defendant’s counsel to defendant, “And Mr. S. jumped on you and gave you a licking?” was improper, as calling for a conclusion of tbe witness.</p> <p>3. Criminal Law <&wkey;390 — Evidence—As to Motive.</p> <p>In a prosecution ■ for assault to murder, It was improper for defendant’s counsel to ask defendant, “Had you carried that gun for Mr. S.?” — an uncommunicated motive, for doing or failing to do, not being matter to which a witness may testify.</p> <p>4. Homicide <&wkey;>295(l) — Assault to Murder. —Instructions.</p> <p>In a prosecution for assault to murder, the court properly refused defendant’s request to instruct, “To reduce the offense to an assault and battery, it is not necessary that the defendant, at the timo he struck the blow, should have been unconscious of what he was doing, but, if there was a. sufficient provocation to excite sudden passion, then the presumption is that passion disturbed the sway of reason, and made him regardless of his act,” because it omitted the fact that defendant acted under the passion aroused.</p> <p>5. Criminal Law <&wkey;759(2) — Instructions— Invading Province oe Jury.</p> <p>In a prosecution for assault to murder, a requested instruction that, “If there was a sufficient provocation to excite sudden passion, then the presumption is that passion disturbed the sway of reason, and made him regardless of bis act,” was properly refused, as invading tbe province of the jury.</p> <p><&wkey;jEor other eases see same topic, and KI3Y-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.</p> <p>Action by D. S. Lacey against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error <&wkey;758(3) —Briefs — Insistence on Assignments of Error.</p> <p>Insistence in appellant’s brief 'on assignments of error ti» rulings, on pleadings, “We submit that the court erred in sustaining the demurrers to pleas 2, 4, 5, and 6,” is insufficient.</p> <p>2. Appeal and Error <&wkey;1040(7) — Harmless Error — Rulings on Pleadings</p> <p>Any error in sustaining demurrers to pleas was harmless, defendant under other pleas having had the benefit of all the defenses raised therein.</p> <p>-©soFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Kyle, Judge. Rervin Love was convicted of assault with, intent to murder, and he appeals. The following charges were refused the defendant: 2.

<p>1. Criminal Law &wkey;386 — Telephone Conversation-Admissibility.</p> <p>In a forgery prosecution, a bank cashier’s testimony that he cashed the check in question pursuant to a telephone conversation, but without stating with whom the conversation was held, is admissible.</p> <p>2. Criminal Law &wkey;>371(5), 673(5) —Evidence — Admissibility—Limitation to Specific Purpose.</p> <p>In a forgery prosecution, other checks claimed to have been forged by, accused were properly admitted, where court charged that they could be considered only for purpose of determining accused’s intent.</p> <p>3. Criminal Law i&wkey;807(l) — Requested Instructions — Argumentativeness.</p> <p>In a forgery prosecution, a requested in•struetion that the jury could not consider checks claimed to have been forged, by defendant unless state offered them in evidence, was properly refused because argumentative.</p> <p><S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

A. Pearce, Judge. Action in detinue by the Dothan Foundry & Machine Company against L. B. Hallman, for the recovery of personal property in specie. From a judgment for plaintiff, defendant appeals.

<p>Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.</p> <p>Nolan Grisham was convicted of manslaughter in the 'first degree, and appeals.</p>

<p>Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge:</p> <p>Mack Winford was convicted of crime, and appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; F. Loyd Tate, Judge.</p> <p>Robert Simmons was convicted of an offense, and appeals.</p>

<p>Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.</p> <p>Oscar Chapman was convicted of murder in the second degree, and appeals.</p>

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Arthur Garner was convicted of assault to murder, and appeals.</p>

<p>Criminal Law <&wkey;1182 — Disposition of Appeal — Opinions.</p> <p>Where no brief or argument is--submitted supporting an appeal by one convicted of crime, the appellate court will examine the'record, and if it is free from error the judgment will be affirmed.</p> <p>©£»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Morgan County; Bobert C. Brickell, Judge.</p> <p>Action by L. T. Wallace against Sam Anders. Judgment for plaintiff, and defendant appeals.</p>

W. Haralson, Judge. Henry Evans was convicted of murder in the second degree, and he appeals. The following charges were refused the defendant: 30.

<p>1. Money Received <&wkey;9 — Demurrage Extorted from Consignee — Recovery by Consignor.</p> <p>Where a railroad extorted money as demur-rage, as a condition precedent to delivery of a shipment of lumber to plaintiff’s consignee, and consignee paid the demurrage under protest, and deducted the amount from the price and assigned the claim to plaintiff, plaintiff was entitled to recover from the railroad as for money had and received.</p> <p>2. Money Received <&wkey;5 — Nature of Action —Privity.</p> <p>The action for money had and received is denominated a liberal and equitable action, and lies whenever the defendant has money which ex síquo et bono belongs to the plaintiff, and privity of contract, except that which arises by implication of law from the fact that the defendant has money belonging to the plaintiff which he has no right to retain, is not an essential to the right to maintain the action.</p> <p>3. Money. Received <&wkey;12 — Equitable Defenses.</p> <p>The action for money had and received is subject to equitable defenses, and defendant may show that he is in equity and good conscience entitled to retain the money.</p> <p>4. Carriers <&wkey;100(l) — Demurrage—Refusal to Deliver — Claim by Third Person.</p> <p>Where a consignor’s possession of lumber was tortious, and he had no title thereto, after notice by the true owner, the carrier could not deliver the lumber to the consignee without liability, and, so far as the consignor was concerned, the carrier was within its legal rights in refusing to make such delivery until the consignor acquired the title, and, in the meantime, could make reasonable charges for the use of the cars unavoidably held from use on account of the consignor’s wrong.</p> <p>5. Carriers <&wkey;72 — Wrongful Possession by Consignor^Claim by Third Person.</p> <p>While' it was incumbent on a railroad to use reasonable and convenient care to minimize the damages that resulted from a consignor’s tortious act in getting possession of lumber and consigning it, yet it was under no duty to deliver the lumber to the consignee upon its offer to pay the freight without satisfactory indemnity, having been notified by a third person of the tortious act of the consignor.</p> <p>6. Carriers &wkey;100(l) — Demurrage—Duty to Deliver — Claim by Ti-iird Person.</p> <p>The mere fact that a third person notified a carrier that a shipment consigned had been wrongfully taken from such third person’s possession by the consignor, and sued such carrier for conversion, would not entitle carrier to charge the consignor for demurrage by reason of the cars having been withheld from use as a result of.the suit; the consignor’s possession having proved to be rightful.</p> <p><&wkey;>For other eases see same topic and KEY-NUMBEH in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Morgan County; O. Kyle, Judge.</p> <p>Action by the E. C. Payne Lumber Company against Mary D. Simpson. Judgment for plaintiff, and defendant appeals.</p>

' Appeal from Circuit' ¡Court, Montgomery CountyLeon McCord^ judge. Charlie Holyfield, indicted under two counts, the first charging the- receiving of stolen property, and the second charging grand larceny, was convicted of receiving stolen property, and appeals.

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.</p> <p>Suit by Mrs. R. J. Fowler against Rena Griffin. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Chattel Mortgages &wkey;>229(3) — Conversion — Burden of Proof — Description of Property.</p> <p>A chattel mortgagee suing for the conversion of cotton has the burden of showing that cotton was covered by the mortgage.</p> <p>2. Chattel Mortgages &wkey;>159, 173(1) — Rights of Mortgagor.</p> <p>Except as against the chattel mortgagee, a chattel mortgagor is regarded as the owner of mortgaged property, and may sue third parties for its conversion.</p> <p>3. Chattel Mortgages <&wkey;225(2) — What Constitutes — Mortgaged ’ Property.</p> <p>Defendant warehousemen, who received mortgaged cotton from a mortgagor and returned it to him before notice that his possession was wrongful, were not liable to the chattel mortgagee in a conversion suit.</p> <p><g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Criminal Law <&wkey;696(9) — Triat>-Motiox To Exclude Part of Answer — Ruling of Court.</p> <p>Court’s statement “Leave out what he said,” in response to motion to exclude part of answer as not response and as hearsay, was not a proper ruling on the motion.</p> <p>2. Criminal Law <&wkey;1168(5) — Harmless Error-Inaccurate Ruling on Motion.</p> <p>Court’s failure to make proper ruling on motion to exclude part of answer of witness will not be considered on appeal, where defendant, at the time, appeared satisfied with court’s direction to “leave out what he said,” and raised no objection and reserved no exception to such form of ruling, and where court evidently treated the objectionable part of answer as excluded by such ruling.</p> <p>3. Intoxicating Liquors &wkey;>238(2) — Criminal Prosecutions — Jury Question.</p> <p>In prosecution for violating prohibition law, by selling or otherwise disposing of bottle of whisky to certain person, evidence that witness had visitéd defendant with such person, ■who had produced bottle of whisky after the. two had left defendant and gone about quarter of mile from her house, held insufficient for submission to jury of whether liquor had been received from defendant, where witness did not know but what such person had liquor before going to defendant’s house.</p> <p>4. Criminal Law <&wkey;563 — Evidence—Sueficiency — Gorpus Delicti.</p> <p>Corpus delicti, like any other fact, may be established by circumstantial evidence.</p> <p>5'. Criminal Law <&wkey;741(l) — Trial — Jury .Question — Corpus Delicti — Weight of Evidence.</p> <p>When a chain of circumstances, tending to establish the corpus delicti, has been proven to such an extent as to make it appear prima facie, the weight and sufficiency of the entire evidence is for the jury; but question as to whether corpus delicti has been established is for the court.</p> <p>6. Criminal Law <&wkey;409 — Inculpatory Admissions — Presumptions as to Admissibility.</p> <p>Inculpatory admissions in the nature of a confession, directly relating to the fact or circumstances of the crime and connecting the defendant therewith, are subject to the same rules of admissibility as direct confessions, and are therefore prima facie involuntary and inadmissible.</p> <p>7. Criminal Law <&wkey;409 — Evidence—Inculpatory Admission — Violation of Prohibition Act.</p> <p>If defendant, accused of violating prohibition law by selling liquor to F., stood mute while charge was being made in her presence and hearing that “she sold the whisky to F.,” it was an inculpatory admission, in nature of a confession directly relating to the facts and circumstances of the crime, and was therefore prima facie involuntary and inadmissible.</p> <p>8. Criminal Law <&wkey;409 — Evidence—Duty of Court — Inculpatory Admissions.</p> <p>It was court’s duty to ascertain whether inculpatory admission was freely and voluntarily made.</p> <p>9. Criminal Law <&wkey;1144(12) — Appeal — Presumptions — Reception of Evidence as to Admissions.</p> <p>It will be presumed on appeal, in absence of affirmative showing in record to the contrary, that trial court performed duty of ascertaining whether inculpatory admission was freely and voluntarily made.</p> <p>10. Criminal Law <&wkey;407(2) — Evidence-Declarations in Presence of Accused: ■</p> <p>The rule allowing the silence of a person being charged with guilt to be taken as an admis-' sion of the statement made in his presence is based upon the assumption that- the party is- at liberty to speak, and that the circumstances arc such as to call upon him for a reply. . .</p> <p>H. Criminal Law <&wkey;409 — Evidence. — Admissions — Silence in Hearing of Áccusa - TION.</p> <p>Evidence of defendant’s silence on being charged with crime'' should be admitted with great caution, and only when it is made to appear clearly to the court that the charge was made definitely, was understood by defendaút,' and that silence was voluntary and not under duress.</p> <p>12. Husband and Wife <&wkey;108 — Coercion of Husband — Common-Law Doctrine. v ; .</p> <p>Common-law doctrine that wife was un.der the protection, influence, power, .and authority of husband, and that she is presumed, while, in his presence, to have acted in obedience to bis will or under his coercion, has not been changó ed by statutes relative to married .women and their property rights. ' •</p> <p><S=>Fbr other oases see same topic and-KEY-NUMBER in all Key-Numbered Digests and-Indexes</p> <p>13. Criminal Law <&wkey;407(l) — Evidence— Silence Following Accusation — Husband’s Domination of Wife.</p> <p>Wife’s silence during husband’s charge in her presence that she has committed crime cannot be taken as an admission against her; she being under husband’s domination at time hé made charge.</p> <p>14. Criminal Law &wkey;>409, 532(1) — Confessions — Inculpatory Admissions — Preliminary Proof — Corpus Delicti.</p> <p>The corpus delicti must be established to the satisfaction of the court by evidence, prima facie, as a predicate for the introduction of evidence of a confession, or of inculpatory admissions directly connecting defendant with the crime charged.</p> <p><J=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Brickell, Judge. ' Isaiah Swope was convicted of grand larceny, and ho appeals. The Attorney General makes a motion to dismiss the appeal on the ground that the transcript was not filed in timé. Motion denied.

<p>Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.</p> <p>Mandamus by the State, at the relation of M. I. Goldsmith, against A. G. Ward, as President of the Board of Revenue and Road Commissioners of Mobile County. From a judgment awarding a peremptory writ, the defendant appeals.</p>

<p>Bail <&wkey;44r — Indeterminate Sentence.</p> <p>A prisoner sentenced under Indeterminate Sentence Law (Acts 1919, p. 148) for term of not less than one nor more than ten years is not entitled to bail pending appeal under Acts 1911, p. 626, authorizing release on bail where defendant is sentenced for a period of five years or less, since maximum, and not minimum, sentence governs in determining right to bail in such cases.</p>

Kyle, Judge. Action by the A. Z. Bailey Grocery Company against the Commercial Savings Bank & Trust Company, in which I-I. C. Schrader Company was interpleaded as substituted defendants. Plaintiff petitions for writ of mandamus to compel court to set aside order discharging substitute defendant and directing that funds paid into court with affidavit of interpleader be returned to defendant.

Kyle, Judge. Action by the Commercial Savings, Bank & Trust Company against the A. Z. Bailey Grocery Company and others, in which I-I. C. Schrader Company was interpleaded. From order striking plea of interpleader and discharging the H. C. Schrader Company, the Commercial Savings Bank & Trust Company appeals. On motion to dismiss appeal.

<p>1. Criminal law <&wkey;878(3) — Conviction on ONE COUNT OPERATES AS ACQUITTAL AS TO OTHERS.</p> <p>A conviction under the second count of an indictment for receiving stolen goods contrary to Code 1907, § 7329, operates as an acquittal as to the first count of the indictment, charging the stealing of the same property.</p> <p>2. Indictment and information <&wkey;110(18) —Statutory form on receiving stolen goods sufficient.</p> <p>An indictment, charging accused with receiving or concealing certain specified property knowing that it was stolen, and not having the intent to restore it to ,the owner, etc., in the form prescribed by Code 1907, § 7329, and section 7161 (form 90), is not subject to demurrer.</p> <p>3. Criminal law <&wkey;338(4, 5) — Evidence as to transaction with which accused is NOT CONNECTED INADMISSIBLE.</p> <p>In a prosecution for receiving stolen goods, a witness for the state cannot testify that he had also lost some goods the same night, where there was no conflict regarding the date of the larceny with which it was sought to connect accused, the witness’ recollection as to the date was clear, and no connection was shown between accused and goods stolen from witness.</p> <p>4. Witnesses <&wkey;254 — Recollection may be REFRESHED BY INQUIRY AS TO' IMMATERIAL CIRCUMSTANCES.</p> <p>In a criminal case, if the witness has given an ambiguous answer, or his memory is at fault, the court, in the exercise of a proper discretion, may allow inquiry as to the circumstances, not otherwise material, which may enable the witness to recollect the fact sought to be proved.</p> <p>0. Criminal law <&wkey;369(15) — Evidence of OTHER OFFENSES ADMISSIBLE TO IDENTIFY DEFENDANT.</p> <p>In a prosecution for receiving stolen goods, evidence that other similar property had been stolen the same night may be introduced to identify defendant as the guilty party, if there is evidence tending to show that such property was found in defendant’s possession.</p> <p>6. Witnesses <&wkey;319 — Character witness MAY NOT BE IMPEACHED AS TO IMMATERIAL ISSUES.</p> <p>In a prosecution for receiving stolen goods, evidence seeking to impeach the testimony of a state’s witness on cross-examination that accused often traded wagons is inadmissible, where the issue as to trading wagons was immaterial.</p> <p>7. Criminal law <&wkey;1207 — Only statutes REDUCING PUNISHMENT APPLY TO PRIOR OFFENSE.</p> <p>A statute providing a greater punishment or applying a penalty with greater severity cannot he applied to a crime committed prior to its passage, but statute reducing punishment' or applying the punishment with less vigor are applicable to prior offenses.</p> <p>8. Criminal law <&wkey;1208(9) — Extreme limits OF PUNISHMENT UNDER INDETERMINATE SENTENCE MAY BE FIXED BY COURT.</p> <p>Under Pamph. Acts 1919, p. 148, authorizing indeterminate sentences for terms not less than the minimum nor more than the maximum fixed by statute, and authorising the court to state the minimum and maximum limits in sentencing a prisoner, etc., the court has discretionary power to fix the minimum and maximum limits of au indeterminate sentence within the extreme limits prescribed by the statute.</p> <p>9. Pardon i&wkey;2 — Indeterminate Sentence Law does not impair pardoning power.</p> <p>Pamph. Acts 1919, p. 148, providing for indeterminate sentences, etc., does not impair the Governor’s power to commute sentences under Code 1907, § 7514.</p> <p>10. Criminal law <&wkey;1206(3) — Indeterminate Sentence Law applies to prior offenses.</p> <p>Pamph. Acts 1919, p. 148, providing for indeterminate sentences between the minimum and maximum limits fixed by statute, is applicable to offenses committed prior to its passage^ without violating Const. 1901, § 7, prohibiting punishments except under laws established prior to th,e offense and legally applied.</p> <p>11. Criminal law <&wkey;1218 — Place of imprisonment.</p> <p>Under the direct provisions of Code 1907, § 7620, a sentence for one year or less must be at hard labor for the county; and an order, confining a prisoner in the penitentiary under a minimum sentence of one year, is erroneous.</p> <p>other cases se© same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Indictment and Information &wkey;>6 — Statute, Authorizing Grand Jury in One District to Indict for Offenses in Another, Constitutional.</p> <p>Acts 1909 (Sp. Sess.) p. 16, § 8, authorizing a grand jury in Guntersville district of Marshall county to indict for an offense committed in the Albertville division, is valid, notwithstanding Const. § 6..</p> <p>2. Indictment and Information i&wkey;6— Grand Jury at Guntersville in Marshall County Authorized to Indict fori Offenses Committed in Albertville Division.</p> <p>Acts 1909 (Sp. Sess.) p. 16, § 8, authorizes a grand jury sitting as a part of the circuit ■court of Marshall county at Guptersville to indict for an offense committed in the Albert-ville division of sucb county.</p> <p>3. Criminal Law <&wkey;>753(2) — Failure to Prove Venue Could not be Availed of by Request of Affirmative Charge.</p> <p>Failure of state to prove the venue cannot be availed of by a request for tbe affirmative charge, in the absence of an affirmative showing that this failure of proof was called to the attention of the court before the conclusion of the argument in the case.</p> <p>4. Criminal Law <&wkey;695(2) — General Objection to Evidence Unavailing, Unless Evidence Manifestly Illegal.</p> <p>General objections to the admission of evidence are unavailing, where the evidence is not manifestly illegal and irrelevant and apparently incapable of being rendered admissible in ■connection with other evidence.</p> <p>■5. Criminal Law <S&wkey;1153(4) — Allowance of Leading Questions within Discretion of Court.</p> <p>The allowance of leading questions is a matter within the sound discretion of the court; and, while this discretion should be so exercised .as not to prejudice the rights of the accused, its exercise is not subject to review on appeal, in the absence of a showing that the discretion ■of the court was grossly abused.</p> <p>■6. Criminal Law <&wkey;1036(l) — Accused, not Invoking Aid of Court, cannot Complain of Lack of Opportunity to Examine Documentary Evidence.</p> <p>Although an accused has the right to examine the documentary evidence offered on the trial, and may invoke the power of the court to this end, he cannot complain that he had no ■opportunity to examine such evidence, where he did not invoke the aid of the court, but relied on the courtesy of opposing counsel in the matter.</p> <p>'7. Criminal Law <&wkey;718 — Prejudicial Error' to Allow Prosecuting Attorney to> go Beyond Issues Under Theory Elected to be Pursued.</p> <p>In a seduction case, the state having elected to proceed solely upon the theory that the defendant by a promise of marriage, seduced tbe prosecutrix, and tbe court baying recognized and acted upon this election in sucb way £s to induce the defendant to rely on it in presenting his case to the jury, it was'prejudicial error for the court, over the objection of the defendant, to allow the prosecuting attorney in his closing argument to go beyond the issues as thus defined.</p> <p>8. Criminal Law <&wkey;678(l) — State Held not Required to Elect in Seduction Case.</p> <p>If evidence offered by the state in a seduction case shows,, or tends to show, that the prosecutrix was induced to surrender her virtue to the defendant as the result of temptation, deception, arts, flattery, and promise of marriage, all combined, the state cannot be required to elect as to which means used by the defendant it will rely upon.</p> <p>9. Criminal Law <&wkey;728(5), 729 — Court Should Instruct Jury to Disregard Improper Remarks Without Request; Withdrawal of Improper Argument does not Cure Error.</p> <p>When accused’s counsel objected to improper language employed by prosecuting attorney in argument, and thus called tbe attention of tbe court to it, it was not enough that the offending counsel replied, “I will take it all back,” the audience laughing aloud in the presence and hearing of the jury, it being tbe duty of tbe court to instruct the jury in clear terms that such remarks were not legitimate argument and that they should not consider anything thus said in their deliberations, and an appeal to the court by accused’s counsel for corrective action is necessary.</p> <p><S=s>For other cases see same tocio and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

E. Blackwood, Judge. Walter Warskam was convicted of murder in the second degree, and he appeals. The facts sufficiently appear from the opinion of the court. The exceptions referred to' as taken to the oral charge were as follows: (1) To that part of the charge defining deliberation, wherein the court stated no moment of time was necessary if he thought — that he intended to strike even-only for an instant of time.

L. Brewer, Judge. Antny Collins was convicted of manslaughter, and he appeals. The facts tend to show that Antny Collins-killed Ott Barker by sliooting him with a pistol,. and that the shooting took place following a short altercation between the parties brought about by the approach of Barker while the crowd was making some change and demanding of Collins some money, which was refused. There was evidence tending to show self-defense.

Action by Mary M. Baker against the Scottish Union & National Insurance Company upon a fire insurance policy. There was judgment by default, which on motion the court declined to set aside, and defendant appealed. The judgment of default was erroneous, as it was rendered before the return day of the summons. Acts 1915, p. 825; sections 5299 and '5346, Code 1907; 100 Ala. 545, 13 South. 665; 119 Ala. 484, 24 South. 516; 126 Ala. 264, 27 South. 842; 128 Ala. 474, 29 South. 582.

<p>On Rehearing.</p> <p>1. Indictment and Information <&wkey;176— State Must Make Proof Accordins to Election.</p> <p>The state, having elected to prosecute for having prohibited liquors at the time whisky was found in a certain place, would be entitled to a conviction only on evidence establishing that fact.</p> <p>2. Indictment and Information &wkey;>176 — Evidence Held to- Fix Time of Possession as Elected by State.</p> <p>Evidence on prosecution for possession of prohibited liquors held to fix the time of possession as elected by the state.</p> <p><S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Action by Annie J. Donovan and another against W. H. Kemp and others on an injunction bond. Judgment for plaintiffs, and defendants appeal. Attorney’s fees in an action on an injunction bond are not recoverable, where the general Code form is used and must be claimed as special damages. 69 Ala. 135 ; Id. 373; 74 Ala. 259; 102 Ala. 400, 14 South. 742; 150 Ala. 404, 43 South. 574.

Leigh, Jr., Judge. Action by L. L. Brown against R. H. Os-well for damages for the negligent destruction of property. From judgment for plaintiff, defendant appeals.

<p>.Appeal from Circuit Court, Morgan County; 0. Ryle, Judge.</p> <p>Assumpsit by the E. C. Payne Lumber Company against Mrs. Ella Crawford and another. Judgment for plaintiff, and defendants appeal.</p> <p>Court undoubtedly erred in giving the affirmative charge for the plaintiff. 13 Corpus Juris, 7517; Paige on Contracts, § 1497.</p>

E. Gamble, Judge. Assumpsit by the Alabama Machinery & Supply Company against R. S. Dickson. Judgment for plaintiff, and defendant appeals. In view of the opinion it is not necessary to here set fprth the pleas referred to in the opinion. These pleas were- set-off and recoupment by way of damages to the wheat stored in the barn.

Will Jackson was convicted for receiving stolen property, and he appeals. Defendant was indicted for receiving or concealing tlie property knowing it to be stolen, and also for breaking into and entering a railroad car npon or connected with a railroad in this state. The jury returned a general verdict of guilty. The property was alleged to he the property of the Louisville & Nashville Railroad Company.

Miller, Judge. Action by J. J. Stanley against W. A. Den-son for money had and received. Prom a judgment for plaintiff, defendant appeals.

B. Smith, Judge. Action by -Mrs. Charles Barnitz against the Central of Georgia Railway Company for damages for failure to permit her to alight at her destination. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear from the opinion. The following charges were refused the defendant: (2) The defendant was under no duty to personally notify the plaintiff o-f the arrival of the train at Childersburg.

H. Miller, Judge. Assumpsit by Mrs. G.-I. Mushat against Caldwell Bradshaw and another. Judgment for plaintiff, and defendant named alone appeals. A surety is entitled to stand on the letter of the contract, and it was immaterial that Bradley owed other debts to the plaintiff at the time. 5 Ala. 388; 87 Ala. 334, 6 South. 82, 4 L. R. A. 680; 66 Ala. 211; 63 Ala. 419; section 5387, Code 1907. The court rendered the proper judgment.

<p>1. Malicious Prosecution <&wkey;47 — Complainí Held not Subject to Demurrers.</p> <p>Counts charging malicious prosecution and false imprisonment in the form prescribed by the Code held not subject to demurrers.</p> <p>2. Malicious Prosecution <&wkey;58(3) — Records Held Properly Admitted.</p> <p>In action for malicious prosecution and false imprisonment on warrant issued by a justice of the peace and made returnable to the county court, court did not err in allowing the affidavit, warrant, and bond, together with the records in the county court, to be offered in evidence.</p> <p>3. Malicious Prosecution <&wkey;55 — Proof of Expenses in Attending Court Held Admissible Under Pleadings.</p> <p>In action for malicious prosecution and false imprisonment, where plaintiff alleged as special damages the expense and loss of time in attending court and in employing counsel to defend him, there'was no error in allowing him to testify as to how many times he had attended court and as to expenses incurred by Mm for hack hire in this connection.</p> <p>4. Appeal and Error <&wkey;743(2) — Assignments of Error! Held Insufficient in its Reference to Record.</p> <p>In action for malicious prosecution and false imprisonment, assignment of error, “the court erred in refusing to allow appellant to prove the feeling of appellee toward appellant (page 19),” held too vague to challenge court’s refusal to permit plaintiff’s witness to answer on cross-examination the question as shown on page 19, “You were speaking about what you heard M. [defendant] say; you also informed him that -the plaintiff, Mr. A., had taken up a hammer and beat up part of the sawmill down there?”</p> <p>5. Appeal and Error <&wkey;1058(2) — Exclusion of Testimony Rendered Harmless by Subsequent Testimony.</p> <p>In action for malicious prosecution and false imprisonment on charge of selling or conveying mortgaged property, exclusion of testimony that cut-off saw was included in mortgage, if error, was harmless, where witness was later allowed to testify fully as to whether the cut-off saw was part of the attachment to the mill that was included in the mortgage.</p> <p><&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Action by Mrs. Luella B. Warwick against Mobile County for trespass quare clausum fregit. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear fiiom the opinion. Counsel discusses the assignment of error, but without citation of authority. The county was not liable. 127 Ala. 567, 29 South. 29; 48 Ala. 697; 195 Ala. 338, 70 South. 259; 109 Ala. 235, 19 South. 1, 31 L. R. A. 193; 156 Ala. 354, 47 South. 135, 18 L. R. A. (N. S.) 884.

<p>Appeal from Circuit Court, Barbour County; A. H. Alston, Judge.</p> <p>Action by S. J. Wright, as executor, against Dock Dubose, begun by attachment Judgment for defendant, and plaintiff appeals.</p> <p>The cause was affirmed on the first submission for want of assignment of errors, but the affirmance was set aside, and the ■cause reinstated on the grounds as stated in the affidavit that the request was made uf a brother lawyer to assign errors and .submit the cause, but through misunderstanding of the request the cause was simply submitted, and no errors assigned; the .attorneys representing the appellant, one being in the army, and the other ill with “flu.” The affidavit for the attachment alleged the relation of landlord and tenant, the fact that rent was due, and' that there was also .an amount due for advances to make the’ crop. The writ follows the general form and commanded the attachment of so much of the estate of the defendant as shall be of value to satisfy the debt. The court permitted the plaintiff to amend in certain particulars the affidavit, but declined to permit the plaintiff to amend by striking out the word estate in the writ and inserting in lieu the following: “Crops raised on the land described in the aforementioned afádavit”— and dismissed the writ.</p> <p>Plaintiff had a right to amend his writ, as well as his affidavit. Section 2965, Code 1907; 119 Ala. 27, 24 South. 458.</p> <p>If there was error, it was without injury.</p>

Merrill, Judge. Action by the First National Bank of Birmingham against M. Kaladner upon a promissory note. Judgment for plaintiff and defendant appeals. The plaintiff did not make out even a prima facie case, and was due an instructed verdict. Sherrill v. M. & M. T. & S. Bank, 195 Ala. 175, 70 South. 723; Wilson v. Weaver, 16 Ala.

Appeai from Circuit Court, Dale County; J. S. Williams, Judge. Action by tbe Decatur Cornice & Roofing Company against G. P. Dowling and others. There was judgment for defendants, and plaintiff appeals and seeks to establish his bill of exceptions. The bill of exceptions should have been established. 173 Ala. 559, 56 South. 120. Counsel discussed the assignments of error on the merits, hut in view of the opinion of the court it is not deemed necessary to here set them out.

Clair County ; O. A. Steele, Judge. ' Action by W. F. Donohoo against W. W. Zellner, begun in justice court and appealed, by defendant to circuit court. A judgment was rendered for plaintiff by the circuit court, and, the same having been set aside on defendant’s motion for new trial, plaintiff appeals. The action was one to recover the value of corn on which plaintiff claimed a landlord’s lien, and which defendant had taken under a mortgage executed by one T. F. George.

Merrill, Judge. Assumpsit by tbe North Birmingham Trust & Savings Bank against J. A. Cameron. > Judgment for plaintiff, and defendant appeals. By tbe agreement referred to in tbe opinion the assignments of error relative to tbe pleadings were eliminated, as tbe agreement set forth error in copying tbe transcript showing rulings on the pleadings. Tbe other facts sufficiently appear.

Pugh, Judge. Assumpsit by J. M. Walker against G. P. Randle. Judgment for plaintiff, and defendant appeals. Under the evidence in this case, no recovery can he had under the .common count, hut an action on the contract only lies. 35 Cyc. 367, 446 ; 49 Hnn, 610, 1 N. Y. Supp. 884 ; 61 Tex. 345, 48 Am. St. Rep. 280; 54 111. 157.

J. Martin, Judge. Assumpsit by J. T. Hagin against S. A. Jackson. Judgment for plaintiff, and defendant appeals. The contest was over whether the note was given to take up a note due by the defendants to the First National Bank, or whether it was given in consideration of the sale of beer and whisky to one of the defendants by tbe plaintiff, which was unlawful in that county at that time.

<p>Appeal from Circuit Court, Calhoun County; Hugh D. Merrill,'judge.</p> <p>Assumpsit by tbe L. Sonneborns Sons, Incorporated, against tbe Little-Cleckler Construction Company and another. Judgment for plaintiff, and defendants appeal.</p> <p>The facts and the contention of the parties sufficiently appear from the opinion of the court.</p> <p>The charge given for the plaintiff is as follows:</p> <p>Unless you are reasonably satisfied from the evidence that there was an express warranty as to the second and third shipments of lapidolith from plaintiff to defendant, as claimed by the defendant, and that said lapidolith was not as warranted by plaintiff, then yonr verdict should-be in favor of the plaintiff for the price agreed upon for said second and third shipments.</p> <p>The following charges were refused to the defendant:</p> <p>(1) If you believe from the evidence that the lapidolith purchased by the Little-Cleckler Construction Company from the plaintiff was applied, according to the directions, to the floors of the courthouse at Wake county, N. C., and proved to be without value, the plaintiff cannot recover of the defendant, and if you find from the evidence that it was without value, and that the Little-Cleckler Construction Company incurred expense in applying this lapidolith, then the Little-OIcckler Construction Company would be entitled to recover judgment against the plaintiff for such reasonable and necessary expenses as were incurred in applying lapidolith to said floors.</p> <p>(2) When a manufacturer sells goods- for a particular purpose, he impliedly warrants that it is suitable for the purpose.</p> <p>(3) When goods are sold for a particular purpose, the seller impliedly warrants that the goods are suitable for that purpose.</p> <p>(4) If you believe from the evidence that the lapidolith purchased by the defendant was used according to directions of the seller, and did not prove of any value to the floors to which it was applied, and if you further believe from the evidence that the defendant Little-Cleckler Construction Company incurred an expense of $128.80 in applying this lapidolith, then the defendant would be entitled to recover a judgment against the plaintiff for that sum.</p> <p>The court erred in giving the charge requested by the plaintiff and in refusing the charges requested by the defendant. 83 Ala. 342, 3 South. 680; 114 Ala. 84, 21 South. 479, 62 Am. St. Rep. 88; 69 Ala. 114; 74 Ala. 90; Wilson on Sales, 313. An implied warranty is not waived by a test. 110 U. S. 108, 3 Snp. Ct. 537, 28 L. Ed. 86; 136 App. Div. 22, 120 N. Y. Supp. 163; 83 Ga. 684, 10 S. E. 360, 6 L. R. A. 374, 20 Am. St. Rep. 329; (D. C.) 141 Fed. 219.</p> <p>Where there is an express warranty, the doctrine of implied warranty is without application. 69 Ala. Ill; 114 Ala. 74, 21 South. 479, 62 Am. St. Rep. 88; Benjamin on Sales, 485; 15 A. & E. Ency. Law, 1232.</p> <p>The contract of parties may be rescinded or modified. 14 Ala. App. 501, 71 South. 70.</p>

Miller, Judge. Action by Mrs. Godfrey Goldman against tlie 'Southern Steam Carpet Cleaning Company and others for the loss of an oriental rug. Judgment for plaintiff, and defendants appeal.

Jones, Judge. Action by W. A. Hayes against tbe Atlanta, Birmingham & Atlantic Railway Company for damages for killing a mule. Judgment for defendant, and plaintiff appealed. Court erred in directing a verdict for the defendant. 10 Ala. App. 308, 65 South. 97; 201 Ala. 336, 77 South. 998; 196 Ala. 136, 72 South. 68; 69 South. 591; 77 South. 421; 197 Ala. 454, 73 South. 14; 200 Ala. 73, 75 South. 401.

Action by Henry Jenkins against the Steel Cities Chemical Company for damages for injury to his premises. Judgment for plaintiff, and defendant appeals. The complaint charged, in substance, that the defendant wrongfully caused damage to the property of the plaintiff by wrongfully causing noxious odors, gas, and dust to be wafted or blown upon plaintiff’s property and to surround his premises.

P. Almon, Judge. Action by the Metropolitan Discount Company against H. W. Stewart. Judgment for defendant, and plaintiff appeals. The court erred in permitting the defenses urged and in admitting evidence thereof. 9 Ala. App. 356, 63 South. 741; 109 Ala. 162, 19 South. 503; 109 Ala. 208, 19 South. 522; 105 Ala. 280, 16 South. 879 ; 78 Ala. 67; 88 Ala. 271, 6 South. 909; 127 Ala. 266, 28 South. 658. .

W; Ferguson, Judge. Action by Freeman Wilson against W. T. Kemp and the sureties on liis official bond as constable. From judgment for plaintiff, defendants appeal. The pleadings sufficiently appear.

<p>1. Master and Servant <&wkey;259(5) — Complaint Based on Act of Superintendent Held Insueeicient.</p> <p>A servant’s complaint under Code 1907, § 3910, subd. 2, which alleged that an officer who exercised superintendence docked a vessel with loose lines, allowing the vessel to drift, and that plaintiff, who was employed as a day-laborer in and about the loading of the ship, was injured by a stage or plank falling upon him by reason of the loose lines, was insufficient to state a cause of action; there being no allegation that the officer was in any way superintending the loading, or docked the vessel for the purpose, or knew when he docked that the vessel was being docked for the purpose of being loaded, or was exercising superintend-, ence during the loading, or had any notice that plaintiff would be liable to any injury by reason of any negligence on Ms part.</p> <p>2. Negligence <&wkey;lll(l) — Complaint Defining Particular Negligence Tested by Special Allegations.</p> <p>The sufficiency of a complaint which un: dertakes to define the particular negligence which caused the injury complained of must be tested by the special allegation in that respect, although the general allegation of negligence would, in the absence of such special allegation, be sufficient to make a prima facie case of negligence.</p> <p><Sx5>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Limestone County; Robert C. Brickell, Judge.</p> <p>Action by W. A. Legg against Cary Brown, on a promissory note, with attachment writ, commenced in justice’s court. From judgment of the circuit court, dismissing defendant’s appeal from judgment of the justice’s court condemning the attached property to satisfaction of .the money judgment confessed, defendant appeals.</p> <p>The appeal was properly taken. Section 4713, Code 1907; 9 Ala. App. 251, 62 South. 1018; 11 Ala. App. 423,.66 South. 878. The cause of attachment may be made an issue and tried. Section 2966, Code 1907; 9 Ala. App. 265, 63 South. 27; 166 Ala. 138, 51 South. 932; 198 Ala. 664, 73 South. 966. And authorities supra.</p> <p>The judgment appealed from is not a final judgment, and the circuit court properly dismissed the appeal. 100 Ala. 515, 14 South. 359; 4 Cyc. 825 ; 71 Ala. 461; 98 Ala. 460, 13 South. 524; 109 Ala. 279, 19 South. 814.</p>

<p>Appeal from Circuit Court, Clay County; Hugh D. Merrill, Judge.</p> <p>Claim suit between A. U. Key, plaintiff in attachment, and Z. A. Haynes, with judgment for claimant, from which plaintiff appeals.</p> <p>The circuit court was without jurisdiction to hear the suit. 108 Ala. 359, 19 South. 386; 78 Ala. 147; 74 Ala. 475 ; 77 Ala. 500; 122 Ala. 329, 25 South. 241; 9 Corpus Juris, 7; 30 Cyc. 1132; 64 Ala. 468.</p> <p>There was no payment or other satisfaction. 58 Ala. 147; 8 Ala. 314; 167 Ala. 461, 52 South. 402; 11 Ala. App. 563, 66 South. 839.</p>

Turner, Judge. Suit by H. C. Puller against John T. Cochrane and M. W. Thompson as receivers of the Alabama, Tennessee & Northern Railway. From judgment for plaintiff, defendants appeal. As to the receivers, the suit is barred by the statute of limitations of one year. Section 4S40, Code 1907; 109 Ala. 495, 19 South. 705; 57 Al,a. 168; 56 Ala. 390; 200 Ala. 90, 75 South. 466; 165 Ala. 411, 51 South. 871.

Brickell, Judge. Action by W. W. .Elenn, as administrator of Lucy Flenn, revived in the • name of George Abercrombie, as administrator de bonus non, for damages for injuries to Mrs. Flenn caused by her horse taking fright at the approach of a train near a crossing, running away, and injuring Mrs. Flenn. Judgment for plaintiff, and defendant appeals. Plaintiff was driving along a public road parallel with and approaching the railroad, crossing it at a sharp angle.

<p>Principal and Agent <&wkey;103(8) — -Typewriter Company’s Agent I-Ield to have had Apparent Authority to Sell Secondhand Machines.</p> <p>Agent of typewriter company, engaged in the advertising, exhibiting, and selling of typewriters, who held himself out as the company’s regular agent, and was recognized as such by the public, and was known to be so recognized by the company, had apparent authority to sell a secondhand typewriter belonging to the company to buyer, who had no notice that his authority was limited to the sale of new typewriters, though prior thereto agent had sold nothing but new machines.</p> <p><g^For other cases see same tooic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

A. Pearce, Judge. Action by Mrs. M. W. Eldridge against the Plouston National Bank of Dothan for money' had and received. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.</p> <p>Action by Bertha Rather against the North American Accident Insurance Company for , sick benefit. Judgment for defendant, which on motion of plaintiff was set aside, and the defendant appeals.</p> <p>This case was tried first in the inferior court of Decatur, where judgment was rendered for the plaintiff. Defendant procured certiorari and brought the case to the circuit court, where the defendant filed the following plea:</p> <p>Comes the defendant, having heretofore interposed the same objection in this cause in an inferior court of Decatur, Ala., from which the appeal was had, prays that this cause be quashed, abated, etc., for this:</p> <p>(1) As a part and parcel of this policy sued on, it was stipulated and agreed as follows:</p> <p>“No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after proof of loss has been filed in accordance with the requirements of this policy.”</p> <p>That the plaintiff filed her proof of loss on, to wit, January 27, 1917, and instituted this suit March 15, 1917.</p> <p>(2) It was stipulated and agreed in and by the policy sued on, and which was a part and parcel thereof, as follows:</p> <p>“Written notice .of sickness on which claim may be based must be given to the company within ten days after the commencement of disability from such sickness.”</p> <p>Defendant avers that the plaintiff’s disability counted on commenced October 2, 1910, and the first written notice of said sickness was given on, to wit, October 23, 1916.</p> <p>The jury found for the defendant on its plea of abatement, and judgment was entered accordingly. The plaintiff moved for new trial on the grounds that there was no evidence before the court that said plea was filed in the inferior court.</p> <p>No formal procedure was necessary. Standard Encyclopedia of Procedure, 42. The suit was prematurely brought. 127 Oal. 480, 59 Pac. 901.</p> <p>The court will not disturb the finding of the trial court. 4 Mayfield, 313; 14 Ala. App. 144, 68 South. 584; 197 Ala. 457, 73 South. 92.</p>

<p>1. Pledges &wkey;44 — Tender Extinguishes Lien.</p> <p>A tender of the amount due extinguishes the lien of a pledge.</p> <p>2. Chattel Mortgages &wkey;>172(3) — Tender, to be Availing, must be Kept Good.</p> <p>In ease of a chattel mortgage to entitle the mortgagor to recover the chattel in 'detinue, a tender of the amount due must not only be made, but it must be kept good.</p> <p>3. Chattel Mortgages &wkey;>8 — “Pledge” Distinguished from “Chattel Mortgage.”</p> <p>The necessary elements to constitute a contract one of “pledge” are: Possession of the pledged property must pass from the pledgor to the pledgee; the legal title to the property must remain in the pledgor; and the pledgee must have a lien on the property for the payment of a debt or the performance of an obligation due him by the pledgor or some other person — while, in a “chattel mortgage,” the legal title passes to the mortgagee subject to a defeasance.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Chattel Mortgage; Pledge.]</p> <p>4. Chattel Mortgages &wkey;>8 — Where Title Passes, Transaction is Mortgage Instead of Pledge.</p> <p>Where a transaction operated to pass title to the lender, subject to the right of the borrower to reacquire, it was a chattel mortgage instead of a pledge.</p> <p>5. Chattel Mortgages <&wkey;73 — Chattel Mortgage Invalid for Failure to Comply with Statute as to Requisites of Instrument Securing Loan.</p> <p>Under Acts 1900-01, p. 2685, § 1, applicable to particular counties, and declaring that all persons engaged in the business of money brokers, or loaning money and talcing security therefor by bills of sale, mortgages on, or liens of any kind on personal property shall, when any such loan is made, express in the instrument securing such loan the rate of interest, etc., a chattel mortgage, whereby the borrower, who received $20 and delivered a diamond ring to the lender, executed a bill of sale, declaring that the ring was sold and might be bought back within 30 days after date for $23.50, is invalid; there being no attempt to comply with the statute.</p> <p>6. Chattel Mortgages <&wkey;73 — Pawnbrokers and Money Lenders &wkey;^3 — Chattel Mortgagee Held Engaged in the Business of “Money Lending.”</p> <p>To be engaged in the business of money lending within Acts 1900-01, p. 2685, requiring stated formalities on the part of money lenders in specified counties, it is not necessary that it should be the lender’s principal occupation, and hence, where defendant had made several similar loans, he will be deemed engaged in the business of money lending, and a chattel mortgage, where not in compliance with the statute, is invalid.</p> <p>sz — iffnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Merrill, Judge. Action by the Atlanta, Birmingham & Atlantic Railway Company against W. P. Hurt to recover for an undercharge of freight upon a shipment of oranges from Ora, in the state of Florida, to Lineville, in the state of Alabama. Judgment for plaintiff, and the defendant appeals.

Application by Tom M. Courson for writ of prohibition restraining the circuit court of Russell county from enforcing a certain judgment. The judgment was void, and petitioner is without remedy, except by the writ prayed for. Acts 1915, p. 703 ; 61 Ala. 399; 2 Ala. App. 265, 56 South. 50; 156 Ala. 630, 46 South. S54; 129 Ala. 305, 30 South. 574 ; 143 Ala. 1, 39 South. 318; 157 Ala. 398, 47 South. 569 ; 6 Ala. App. 234, 60 South. 559; 60 Ala. 650.

Action by Jack Nolen, by his next friend, against J. M. Starke to recover money paid for tuition. Judgment for defendant, and plaintiff appeals. Counsel contend that a guardian cannot hind the person or estate of his ward by his contract. 151 Ala. 293, 44 South. 193, 13 L. R. A. (N. S.) 297; 136 Ala 234, 33 South 875; 105 Ala. 149, 16 South. 723; 74 Ala. 422; 50 Ala. 586; 28 Ala. 501; 5 Ala. 42.

<p>Appeal from Probate Court, Monroe County; M. M. Fountain, Judge.</p> <p>Lonziann Montgomery brought'habeas corpus against Jimmie Black and Mary Ranaldson, in separate actions for the custody of her children which were consolidated and tried together, resulting in a judgment for the plaintiff, from which the defendants appeal.</p> <p>The facts sufficiently appear from the opinion.</p> <p>The court erred in rendering the judgment, for plaintiff. 2 Ala. App. 461, 56 South. 589; 166 Ala. 531, 52 South. 52.</p> <p>This case should be affirmed, on the authority of Cook v. Echols, 16 Ala. App. 606, 80 South. 680, and’Gamble v. Cotton, ante, p. 110, 82 South. 558,</p>

A. Grayson, Judge. William Schroeder was convicted of violating the prohibition law, and he appeals. Most of the facts sufficiently appear from the opinion.

<p>1. FlBES <&wkey;7 — COMPLAINT IN ACTION FOB Burning Cotton Held not Insufficient as Failing, to Show Duty Resting on Defendant.</p> <p>In an action for damages for the destruction of cotton by fire communicated from a fire intentionally started by defendant, a complaint for a stated sum as “damages for willfully and intentionally burning and destroying 17 bales of cotton at the value of $1,000, the property of plairftiff,” held not insufficient as failing to show a relation between plaintiff and defendant giving rise to a duty by defendant to plaintiff, defendant owing it to all persons not to destroy valuable property willfully or intentionally.</p> <p>2. Evidence <&wkey;100 — Circumstantial Evidence Admissible to Show Conspiracy and Feaud.</p> <p>Rules of evidence as to the admissibility of testimony are much more liberal as to proof of conspiracy and frauds, which, being easily conceived and carried out in secret, must of necessity be proved by circumstantial evidence.</p> <p>3. Appeal and Erbob <&wkey;1050(3) — Proof, of Unnecessary Matters of Common Knowledge Held not Prejudicial.</p> <p>In an action for burning cotton caused by defendant intentionally burning his own property to secure the insurance, it was not error to allow proofs, although unnecessary, that wells usually contain more water in February and during the spring months than in other seasons, and that the time of the fire was not the dry season; it being a matter of common knowledge, proof of which was without injury.</p> <p><SS=jFor other oases see same topic and KEY-NUMBER in all Kay-Numbered Digests and Indexes</p> <p>4. Evidence <&wkey;171 — Collateral Parol Evidence as to- Insurance on Defendant’s Buildings Destroyed Held Admissible in Action for Burning of Plaintiff’s Cotton.</p> <p>In an action for damages for burning cotton alleged to have been caused by defendant intentionally burning his own property to- obtain the insurance, par’d próof as to insurance on the buildings destroyed was admissible; strict rulings as to primary and secondary evidence not being enforced where the evidence offered is collateral merely.</p> <p>5. Fires <&wkey;7 — Evidence of Transactions Between Coconspirators Admissible to Show Conspiracy.</p> <p>In an action for destruction of cotton by fire alleged to have been started by defendant intentionally to obtain insurance, evidence as to transactions between defendant and', a eoconspiratof near the time of the fire held admissible as circumstances at least in corroboration of the direct testimony tending to show conspiracy.</p> <p>6. Fires <&wkey;7 — Evidence that Defendant’s Conspirator had been Indicted Held Admissible.</p> <p>In an action for destruction of cotton by fire alleged to have been set to obtain insurance, evidence that defendant’s alleged conspirator had been indicted for burning the building in question held admissible.</p> <p>7. Fires t&wkey;7 — Financial Condition of Conspirators at the Time of Fire Held Admissible jn Action for Burning Cotton.</p> <p>In an action for destruction of cotton by fire alleged to have been set by defendant to obtain insurance, the financial condition of the conspirators at the time of the fire held admissible.</p> <p>8. Conspiracy <&wkey;13 — Conspirators Liable for Acts of Co-conspirators.</p> <p>Each” conspirator is answerable for the acts of each and all of his coconspirators if the acts be in furtherance of the conspiracy, or the matter direct and proximate result of such conspiracy.</p> <p>9. Witnesses <&wkey;414(l) — Evidence Held Ad- , missible in Corroboration on Impeachment.</p> <p>In an action for destruction of cotton by fire alleged to have been set by defendant intentionally to se.cure insurance, evidence identifying a trunk and contents as property of a witness who was also a conspirator, there being evidence that this witness was hired by other conspirators in furtherance of the conspiracy, ■ held admissible to corroborate witness’ evidence when impeached.</p> <p>10. Fires <&wkey;7 — -Evidence in Corroboration of Conspiracy Held Admissible. <</p> <p>In an action for destruction of plaintiff’s eotton by fire alleged to have been intentionally set by defendant to Secure insurance, proof of the value of the building destroyed, and that its contents had been removed shortly before the fire, held admissible in corroboration of testimony as to conspiracy.</p> <p>11. Fires <&wkey;7 — Evidence that Building Burned' had been Conveyed under Conveyance with Fictitious Dates Held Competent.</p> <p>In an action for destruction of plaintiff’s cotton by fire alleged to have been set by defendant to secure the insurance, evidence that defendant had conveyed his house shortly before, and that the conveyance showed fictitious dates, both as to the time of execution and acknowledgment, held admissible.</p> <p>12. Fires &wkey;>7 — Instruction in Action for Conspiracy to Burn Building Held Properly-Refused as Misleading.</p> <p>In an action for destruction of plaintiff’s cotton by fire intentionally set by defendant in own building to secure the insurance, an instruction that, if the evidence failed to satisfy the jury that the co.tton was willfully or intentionally or negligently “burned by defendant,” they c-ould not find for plaintiff, was properly refused as being misleading in instructing the jury that defendant must have personally burned and destroyed the property.</p> <p>13. Fires <&wkey;7 — Instruction in Action for Damages by Fire Held Properly Refused.</p> <p>In an action for destruction of plaintiff’s eotton by fire alleged to have been set by defendant to bum own building to secure the insurance, an instruction for defendant, if the jury was not satisfied that the- cotton was “willfully or intentionally or negligently” burned by defendant, was properly refused as requiring proof that the fire must have been willfully, intentionally, and negligently set.</p> <p>14. New Trial <&wkey;44(l) — That Jurors Board with Plaintiff’s Witness Held Insufficient to Justify Setting Aside Verdict for Plaintiff.</p> <p>In an action for destruction of eotton by fire alleged to have been caused by a conspiracy, that one of the jurors while serving on the jury boarded with one • of plaintiff’s witnesses, who was active in plaintiff’s behalf, held not sufficient to justify setting aside the verdict.</p> <p>©¿oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Clair County; O. A. Steele, Judge. Action by the American Lumber & Export Company against R. D. Love, as Sheriff, and the sureties upon his official bond, for damages for the conversion of certain lumber. Judgment for defendants, and plaintiff appeals. Counsel discuss the assignments of error insisted on and treated in the opinion, but without citation of authority.

J. Curtis, Judge. Action by Charlie Dean against the SlossSheffield Steel & Iron Company and Alex Brewis jointly for personal injuries. Judgment for plaintiff, and defendant appeals. The action is under the first subdivision of the Employer’s Liability Act (Code 1907, §§ 3910-3913), for injury to plaintiff’s hand, who was working as a driver of tramcar trips, where his hand became mashed while coupling the cars.

<p>Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.</p> <p>Ed. Murray was convicted on a charge of violating the prohibition law, and from the judgment he appeals.</p>

<p>Criminal Law <&wkey;1090(14) — Requested Instructions not Considered in Absence oe Bill of Exceptions.</p> <p>Refusal to give requested charges will not be considered on appeal, in the absence of bill of exceptions.</p>

<p>Appeal from Circuit Court, Calhoun County ; Hugh D. Merrill, Judge.</p> <p>Action by Fannie E. Broughton against J. W. Broughton in trover and conversion. Judgment for the defendant, and plaintiff appealed.</p> <p>The court erred in the judgment rendered. 76 Ala. 427; 73 Ala. 215; 21 Ala. 448; 14 Cyc. 251.</p> <p>Two important papers are missing from the records, and the court will presume that the trial court rendered the proper judgment. 189 Ala. 628, 66 South. 605; 2 Ala. App. 436, 57 South. 73; 6 Ala. App. 411, 60 South. 468.</p>

B. Poster, Judge. Action by the R. F. Darrah Dumber Company against the McGowin Lumber Company in detinue, trover, and the common count. Judgment for defendant and plaintiff appeals. Action by plaintiff to recover the value of a carload of lumber. From a judgment for ■defendant, plaintiff appeals.

L. Brewer, Judge. Action by R. J. Hooton against W. O. Robertson in trover and trespass. .Judgment for plaintiff, and defendant appeals. The amended complaint is as follows: (4) Plaintiff claims of the defendant the sum of $300 damages for the conversion by him of one automobile on or about the 21st day of October, 1915, the property of the plaintiff.

Merrill, Judge- Action by G. W. Williams against the Central of Georgia Railway Company for damages for injury to his wife while a passenger on its railway. From judgment for plaintiff in the sum of $700, defendant appeals.

<p>1. Garnishment <@=»149 — Garnishee not Discharged on Written Answer Where Plaintiff Demands Oral Answer.</p> <p>Court did not err in overruling a motion of. a garnishee, which had filed its answer in writing denying indebtedness, to he discharged upon such answer, where plaintiff had demanded an oral answer; Code 1907, § 4316, expressly giving plaintiff right to demand oral answer.</p> <p>2. Appeal and Error <&wkey;733 — Assignment that Court Erred in Entering Order Insufficient Where it Contained Erroneous Statement.</p> <p>An assignment of error, “The court erred in entering an order * * * against the defendant and the garnishee,” was not sufficient to invoke a review by the court, where such “order” was a judgment against the garnishee alone and not against the “defendant and the garnishee.”</p> <p>©soFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Action for damages by reason of negligent delay in the transportation of a carload of potatoes, by the Warley Eruit & Produce Company against the Louisville & Nashville Railroad Company. From a judgment of nonsuit taken by plaintiff under the statute, plaintiff appeals.

A. Sharpe, Judge. Action by J. O. Middleton against W. A. Denson in assumpsit. Judgment for defendant, and plaintiff appeals. The verdict was justified 'by the evidence, and the finding of the trial court will not be disturbed, unless it appears plainly and palpably. Cobb v. Malone, 92 Ala. 635, 9 South. 738, and cases following it. The trial court erred in the judgment rendered, and his'judgment is subject to revision by this court.

Grayson, Judge. Assumpsit by George M. Rosengrant against Adía Hermanos y Cia, begun by attachment, and resulting in judgment for plaintiff, from which the defendant appeals. The complaint was filed December 13, 1915, and the affidavit denying the correctness of the count was filed May 15, 1917.

<p>Criminal Law <&wkey;1090(14) — Charges Requested not Reviewed in Absence of Bill of Exceptions.</p> <p>Where no bill of exceptions appears in the record, rulings of the court upon charges requested in writing cannot be passed upon.</p> <p>6=3Í'or other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

I. Jones, Judge. Action by J. T. McKenzie against John H. Minge and others to recover for work and labor done on a cotton oil plant, and to enforce mechanic’s lien thereon. Prom judgment for defendants, plaintiff appeals. A mechanic has four months within which to file his lien in the Probate office and six months within which to file his suit to enforce it. Sections 4758 and 4777, Code 1907.

J. Curtis, Judge. Action by E. B. Wells against the Corona Coal Company. Judgment for plaintiff, and defendant appeals. The defendant was entitled to an instructed verdict, and tbe court erred in refusing the charges directed to that end. 171 Ala. 204, 54 South. 553; 146 Ala. 234, 41 South. 475; 171 Ala. 274, 55 South. 187; 137 Ala. 481, 34 South. 612; 101 Ala. 309, 14 South. 10, 22 L. R. A. 361.

<p>Appeal and Error <&wkey;750 (2) — -Assignments Held not to Raise Propriety op Quashing Complaint and Taxing Costs.</p> <p>On appeal in an action for damages on an attachment bond, assignments of error that the court erred in granting the motion of defendants to dismiss the case, and in granting defendant’s motion to'quash the summons, and in dismissing the case, were insufficient to raise the question as to the propriety of the trial court in quashing the complaint and taxing-plaintiff with costs. .</p> <p><s^x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Kyle, Judge. Action in assumpsit by the Home Supply Company against J. H. Brewer. Judgment for plaintiff, and defendant appeals. Charge A, given for plaintiff, is as follows: If you are reasonably satisfied from the evidence in this ease that the goods in question were sold to L. and P. Brewer and Isom Sparks by plaintiffs on the sold credit of the defendant, your verdict should be for the plaintiff.

<p>Appeal from Circuit Court, Marengo County ; R. I. Jones, Judge.</p> <p>Detinue and trover by Dula Jones against Dan Baty. Judgment for defendant, and plaintiff appeals.</p> <p>Charge 1 was the general affirmative charge for the plaintiff. Charge 2 was the general affirmative charge as to the detinue count, and charge 3 the general affirmative charge as to the trover count.. Charge 4 is as follows:</p> <p>In order to find a verdict for the defendant in this case, you must find that the mortgage purported to be given by Palma Jones to Lonnie Monerief was properly executed by him; that is, that Palma Jones gave Lonnie Monerief a legal mortgage on the property in dispute, and that the property in dispute was the property of said Palma Jones.</p> <p>The following charge was given at the instance of the defendant:</p> <p>The fact that L. A. Monerief signed his name as prosecutor to a bill found in the circuit court of Marengo county is not conclusive evidence that he made a sworn statement in the grand jury room that they were not his cattle.</p> <p>The plaintiff was entitled to recover. Section 4498, Code 1907; 15 Alav App. 419, 73 South. 747 ; 98 Ala. 79, 13 South. 280; 72 Ala. 406; 393 Ala. 447, 69 South. 423 ; 195 Ala. 353, 70 South. 153; 8 Ala. App. 440, 62 South. 308; 12 Ala. App. 456, 68 South. 545. The charges requested should have been given. Authorities supra. The court erred in giving the charges for the defendant. 11 Ala. App. 670, 66 South. 954; 183 Ala. 237. 62 South. 8S9. The oral charge of the court ivas erroneous. 193 Ala. 447, 69 South. 421; 11 Ala. App. 3S2, 66 South. 890; 8 Ala. App. 440, 62 South. 308.</p> <p>The court properly refused the affirmative charges requested by the plaintiff. 180 Ala. 541, 61 South. 68; 194 Ala. 162, 69 South. 582. 'Che title was in the husband, under the evidence in this case. 22 Ala. 743 ; 54 Ala. 309; 99 Ala. 441, 12 South. 420, 19 L. R. A. 700; 164 Ala. 442, 51 South. 268.</p>

Mann Mims was convicted of violating the prohibition law, and lie appeals. Counsel discussed the assignments of error, but without reference to the points cited in the opinion.

Merrill, Judge. Action by Eddie Embry against George I-I. Morgan for penalty for failure to enter partial payment on the margin of the record of a mortgage. Judgment for the plaintiff, and the defendant appeals. The original count was demurred to and was amended, and it does not appear that the demurrers were refiled thereto. The action was to recover the penalty for failure to enter partial payment on the margin of the record of two mortgages.

P. Allman, Judge. Action by Frank Hardy against S. L. Glass, begun in justice court and appealed by defendant to circuit court. From a judgment there for defendant, plaintiff appeals. Counsel discuss the assignment of error, but without citation of authority. Counsel disc-uss the assignment of error, but without citation of authority.

Goldsby, Judge. Nick Canellos was convicted of buying or receiving property knowing that it bad been embezzled or fraudulently converted or fraudulently secreted with intent to defraud the rightful owner, and he appeals.

Merrill, Judge. Action by Armour & Co. against the Alabama Power Company for damages to an automobile in a collision with a street car. Judgment for defendant, and plaintiff appealed.

P. Ileflin, Judge. George Jones, alias Panic, was convicted under an indictment charging- as follows: First count, assault with intent to murder Jim Betts; second, assault with intent to murder AV. L. Gresham; third, shooting at or into an automobile for the carrying of passengers; fourth, shooting at or into a vehicle, a passenger automobile, which was at the time loaded with passengers.

<p>1. Witnesses &wkey;>242 — Leading Questions are Proper to Refresh Witness’ Recollection.</p> <p>A witness may be asked loading questions by the party offering him, as to statements made different from his testimony then being given, not for the purpose of impeachment, but in order to refresh his recollection.</p> <p>2. Criminal Law &wkey;> 448(3 2) — Evidence as to Defendant’s Remarks after Running Over a Child held Inadmissbue as Conclusion.</p> <p>In a murder prosecution, based on the killing of a child by reckless driving of automobile, it was error to permit a witness to testify that after the killing of the child defendant made a statement about cutting the lights off on his oar and referring to it as a “smart trick” and “bragged about it”; such answer being a conclusion as to meaning of defendant’s statement.</p> <p>3. Criminal Law <&wkey;1169(9) — Error in Admitting Conclusion of Witness Held Cured by Eliciting Facts upon Which it was Based.</p> <p>In a murder prosecution, based on negligently driving an automobile over a child, error in admitting testimony that defendant bragged about turning off the lights on his ear and referred to it as a “smart trick” held, cured by eliciting thé actual statement made by defendant.</p> <p>4. Homicide <&wkey;174(7) — Evidence of Defendant’s Flight after Killing Child with Automobile Recklessly Driven PIeld Admissible.</p> <p>Where defendant was charged with murder for recklessly running over a child with his automobile, it was competent to prove that immediately after striking the child defendant speeded up the car, as tending to prove flight.</p> <p>5. Homicide <&wkey;I74(8) — Defendant’s Statement that the Police were after him Held Admissible to Show Consciousness of Guilt.</p> <p>Where defendant was charged with murder for recklessly driving over and killing a child with his automobile, it was competent for the state to prove that shortly after he struck the child, and before the arrest, defendant told his brother that “the cops were after him,” as tending to show a consciousness of guilt.</p> <p>6. Homicide <©=el69(9) — That Defendant, Charged with Running Over Child with Automobile, was Cautioned Against Reckless Driving, Held Admissible.</p> <p>Where defendant was charged with murder for recklessly running over and lulling a child with his’ automobile, it was competent for the state to prove that within six or seven city blocks defendant was cautioned by inmates of the car against fast driving, as tending to show a reckless disregard for human life.</p> <p>7. Homicide <&wkey;>171(l) — Evidence of Recklessness Held Admissible in Prosecution for Running Over Child with Automobile.</p> <p>Where defendant was charged with murder for running over and killing a child with his automobile, that defendant was driving his car on a frequented thoroughfare in a city at a rapid speed, and that a woman sitting on the seat with him had her arms around his neck, was competent as tending to show recklessness.</p> <p>'8. Witnesses <&wkey;380(2) — Contrary Statements Held Admissible for Purpose of Impeaching Testimony of Defendant in Murder Prosecution.</p> <p>In a prosecution for murder for recklessly running over and killing a child with an automobile, it was competent to prove statements by defendant out of court, relative and material to the crime charged, and contrary to the statements he was then making, for the purpose of impeaching his testimony.</p> <p>9. Homicide <&wkey;174(8) — Denial that Defendant was Present Held Competent to Prove Guilt.</p> <p>Where defendant was charged with murder for recklessly running over and killing a child with his automobile, denials by .defendant that he was present at the time the crime was committed were admissible as tending to prove guilt.</p> <p>10. Homicide <&wkey;255(3) — Evidence Held to Support Verdict of Manslaughter for Driving Over and Killing Child with Automobile.</p> <p>The driving of a six-cylinder, seven-passenger automobile along a greatly frequented thoroughfare at night, and at a rate of speed from 45 to 50 miles per hour, with a woman’s arms around the driver’s neck, is the greatest kind of negligence, evidencing a wanton disregard of human life that will support a verdict of manslaughter in the first degree.</p> <p>(SssFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Appeal and Error <&wkey;916(2) — Proper Plea Presumed to have been Filed.</p> <p>Though no plea appeared in the record, it will be presumed on appeal that a proper plea was filed to let in the evidence which the primary court admitted.</p> <p>2. Appeal and Error <@=»706(2) — Overruling of Motion for New Trial cannot be Reviewed, Where Record did not Contain it.</p> <p>An assignment of error complaining of the overruling of a motion • for new trial cannot be considered, where the record did not contain the motion.</p> <p>3. Appeal and Error &wkey;>1011(l) — Judgment on Conflicting Evidence not Open to Attack.</p> <p>Where the complaint was not questioned by demurrer, and it could not be said that the evidence, which was conflicting, did not tend to support its allegation, the judgment will not be disturbed on appeal.</p> <p><gss>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>■ Action by the Greil Bros; Company, a corporation, against the Belcer Grocery Company, in which a fund garnisheed was claimed by the Farmers’ Exchange Bank, a corporation. From a judgment in favor of the attaching creditor, claimant appeals.</p> <p>The bank was a holder for value. 8 Corpus Juris, 483; 189 Ala. 418, 66 South. 509; 189 Ala. 249, 64 South. 561; 158 Ala. 143, 48 South. 340; 9 Ala. App. 352, 63 South. 741. Under the facts in this case, the title to the proceeds was absolute in the hank. 16 Ala. App. 346, 77 South. 940; 191 Ala. 603 ; 12 Ala. App. 514, 67 South. 721; 9 Ala. App. 328, 63 South. 776. The bank was a holder in due course. 191 Ala. 356, 67 South. 839; 7 Corpus Juris, 635; 101 Neb. 96, 162 N. W. 503, L. R. A. 1917E, 374.</p> <p>The only issue arising was whether claimant had a superior right to the garnishing creditor and the burden was on the claimant. 171 Ala. 420, 55 South. 100, 129 Ala. 314, 29 South. 680; 517 Ala. 368; 11 Ala. 151. Until executed a bill of exchange does not operate as an assignment of the funds in the hands of the drawee. Section 5076, Code 1907; 27 Ala. 390; 102 Ala. 537, 14 South. 871; 11 Ala. App. 563, 66 South. 839; 134 Ala, 626, 33 South. 6; 129 Ala. 326, 29 South. 695; 16 Alai App. 256, 76 South. 988; 158 Ala. 343, 48 South. 340; 180 N. Y. 346, 73 N. K. 33, 105 Am. St. Rep. 767; 185 Ala. 256, 64 South. 561; 195 Ala. 175, 70 South. 725; 145 Ala. 625,, 40 South. 278.</p>

B. Almon, Judge. Detinue and trover by Wright & Shaw against W. F. Hammock. Judgment for plaintiffs, and defendant appeals. The landlord’s lien was superior to the mortgage under which plaintiff claimed. Section 4734, Code 1907; 130 Ala. 395, 30 South. 443 ; 4 Ala. App. 312. 58 South. 115. In any event he was the bailee of the sheriff. 163 Ala. 320, 50 South. 1003; 99 Ala. 573, 12 South. 410; 158 Ala. 123, 48 South. 492; section 4103, Code 1907.

Appeal 'from Circuit Court, Cherokee County; W. W. Haralson, Judge. Assumpsit by Johnny Green against Joe W. Baker and C. N. Lowe. Judgment for plaintiff, and defendants appeal. The defendants and Young entered into an agreement for an aviator to make a certain number of flights at a fair in Cherokee county; the aviator specified being Bruner, who was to make loop flights.

Appeal fi-om Circuit Court, Chilton County; Leon McCord, .Judge. William Guin was convicted of violating the prohibition law, and he appeals. This cause must be reversed, on the authority of Haynes v. State, 5 Ala. App. 167, 59 South. 325. The rule invoked by appellant has no application to offenses for violating the prohibition law. SI South. 179; S2 South. 560.

Bricliell, Judge. Action by W. D. Cannon, Jr., against H. W. Dillehay and others. Judgment for defendants, and plaintiff appeals. . The amount of discount does not indicate had faith. 80 Ala. 262; 120 Ala. 493, 24 South. 959. Dillehay’s action constituted negligence as to any subsequent innocent purchaser of the paper. 106 Ala. 535, 18 South. 154; 120 Ala. 493, 24 South. 959; 18 Ala. 227.

Goldsby, Judge. ' Assumpsit by F. M. Deer against the National Timber Company and one Eichberg. Judgment for plaintiff, and defendants appeal. The judgment was against the great weight of the evidence. 201 Aia. 647, 79 South. 119. The court erred in sustaining demurrers to the pleas of the defendant Eichberg. 142 Ala. 449, 38 South. 259; 42 Ala. 255; section 5858, Code 1907.

Brickell, Judge. Action by S. E. Stewart against Lattie B. Orr and others. An affirmative judgment for defendants was rendered, and on plaintiff’s motion for new trial the court made an order providing that, if defendants did not file remittitur, the motion would be granted. From such order, defendants appeal. Plaintiff in the court below brought suit against the defendants on a promissory note executed by them and payable to plaintiff.

<p>Appeal from Circuit Court, Mobile County; Joel \V. Goldsby, Judge.</p> <p>Fred Schaffer was convicted of violating the prohibition law, and lie appeals.</p>

Action by the County of Montgomery against the New Farley National Bank to recover an amount alleged due as a balance on the sale of certain bonds. Judgment for plaintiff, and defendant appeals.

Turner, Judge. John Byrd was convicted of an assault and battery upon the person of Dr. Roberts. He appeals. The objections to evidence sufficiently appear from the opinion of the court. The following charges were accused to the defendant: (3) If the jury believe from the evidence that the witness John Godwin has willfully or corruptly sworn falsely to any material facts in evidence, then the jury may, in its discretion, disregard such evidence of such witness entirely.

L. Brewer, Judge. Action by D. E. Laslie against the Western Union Telegraph Company for damages for delay in delivery of a message, resulting in judgment by default for plaintiff, which defendant moved to set aside, the motion-being denied, and defendant appeals. Where the plaintiff has made the demand for- jury trial, he cannot withdraw the demand without the consent of, or at least notice to, the defendant. Acts 1915, p. 939; 201 Ala. 97, 77 South. 391; 79 South. 253.

S. Williams, Judge. Action by E. M. Patterson against the Central of Georgia Railway Company for damages for the destruction of goods by fire after they had been transported and placed in warehouse. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.</p> <p>William Abrams was convicted of violating the prohibition law, the conviction was affirmed on appeal to the circuit court on a trial by jury, and he appeals.</p>

<p>Appeal from Circuit Court, Montgomery County; F. Loyd Tate, Judge.</p> <p>Ered Jacobs was convicted of burglary,'and lie appeals.</p>

Goldsby, Judge. Sarah Wilson, alias Simmons, was convicted of being a vagrant, and she appeals. A witness may not testify by expressing an opinion as to the very matter tlio jury must determine. 82 Ala. 3S, 2 South. 451; 159 Ala. 44, 49 South. 224, 133 Am. St. Rep. 17; 187 Ala. 10, G5 South. 514; 60 Ala. 97; 55 Ala. 217. The defendant was entitled to the affirmative charge. OS Ala. -Gl, 13 South. 325; 98 Ala. 99, 12 South. 723.

L. Sowell, Judge. Sam Denton was convicted of incest, and he appeals. Counsel discusses the assignments of error, but without citation of authority.

L. Brewer, Judge. Fred Tucker was convicted of bastardy, and he appeáls. Counsel discuss assignments of error based on refusal of requested charges, but in view of the opinion it is not deemed necessary to here set them out. , The oral charge of the court not being in the record, the appellate court will not consider the refused charges. 200 Ala. 656, 77 South. 30.

Merrill, Judge. Action by S. P. Barren against the Spalding Manufacturing Company for breach of contract in the sale of a buggy and for deceit. From a judgment for defendant, plaintiff appeals.

<p>Appeal from Circuit Court, Jefferson County; We. E. Fort, Judge.</p> <p>Ras Martin was convicted of unlawfully dis-</p> <p>tilling prohibited liquors, and he appeals.</p>

<p>Criminal Law <&wkey;753(2) — General Charge SHOULD BE GIVEN IN ABSENCE OF EVIDENCE Connecting Defendant with Crime.</p> <p>■ Though the corpus delicti is proved beyond a reasonable doubt, a general charge for defendant should be given when there is no legal evidence connecting him with the commission of the crime' as charged.</p>

<p>Appeal and Error &wkey;>776 — Dismissal at Request of Parties on Settlement.</p> <p>Where it is certified to the Court of Appeals by the parties in interest that a case has been settled, appeal therein will be dismissed ■at their request.</p> <p>&wkey;>For other oases see same tocio and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Petition by W. A. Gunter for mandamus to be direded to Robert C. Brickell, as Judge of the Eighth judicial circuit, to permit the petitioner to supersede a judgment for costs rendered against him in Cullman circuit court and to enter an order staying execution thereon pending the hearing of petitioner’s motion to vacate and annul such judgment.</p> <p>A void judgment will not support an appeal. 41 Ala. 75. If the judgment is good on its face, you cannot reverse it on appeal, without a bill of exceptions. 20 Ala. 140. It cannot go into equity. Subdivision 1, § 3052, Code 1907. Tbe remedy, then, is -by mandamus. 18 Ala. 778; 16 Ala. 813; 178- Ala. 420, 59 South. 493; 4 Ala. 527; 7 Ala, 460. This is a direct attack on the judgment. Black on Judgments, §§ 274-276, 288; 101 -Ala. 340, 13 South. 502. The court was without jurisdiction to render the judgment. 5 Wall. 148, 18 B. E'd. 502; 18 Wall. 457, 21 B. Ed. 897; 19 Wall. 58, 22 B. Ed. 70; 2 Black on Judgments, § 276. The judgment was not a formal judgment. 3 Port. 335..</p> <p>A former judgment cannot be set aside at a subsequent term of the court, nor may it be shown to be void by evidence aliunde the record. 95 Ala. 478, 12 South. 577 ; 77 Ala. 612; 109 Alq. 388, 19 South. 414. The sheriff’s return is conclusive. 201 Ala. 13, 75 South. 306.</p>

C. B. Gwin, Judge. Detinue and conversion by John Tanneyhill against J. G. Bennett. Judgment for plaintiff, and defendant appeals. The action was to recover for the conversion of,oi\to recover the property in one large white sow and her seven shoats.

<p>Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.</p> <p>Action by Mrs. Leah McNeil against the North Alabama Traction Company and another. Judgment for plaintiff, and the nam-</p> <p>ed defendant appeals.</p> <p>The opinion of tine Court of Appeals and the authorities there cited is a complete answer to the writ.</p> <p>The whole count must be considered in arriving at its true and full meaning. 163 Ala. 241, 50 South. 996. The words “negligently maintained” cover the active as well as the passive attitude of the traction company towards the i>ole. 161 Ala. 170, 49 South. 759; 164 Ala. ISC, 51 South. 340, 159 Ala. 235, 48 South. 603; 11 Corp. Juris, 38; 208 S. W. 470; 160 U. S. 521, 17 Sup. Ct. 661, 41 L. Bd. 1101.</p>

<p>Appeal from Circuit Court, Elmore County; Leon McCord, Judge.</p> <p>J. .W. Dobbs contested the election of T. W. Brunson as Mayor of Tallassee, and from an adverse judgment he appeals.</p> <p>The provisions of section 461, Code 1907, are not applicable to cases like this.</p> <p>Contests of election are of statutory origin, and the statutes must be strictly complied with. 130 Ala. 514, 30 South. 434. This requirement was not met here.</p>

Brickell, Judge. Felix Williams was convicted of murder in, the second degree, and he appeals. The venire should have been quashed. Acts 1909, p. 318; 15 Ala. App. 304, 73 South. 141; 171 Ala. 38, 55 South. 118; 172 Ala. 418, 55 South. 601; 185 Ala. 20, 64 South. 80. Counsel discuss charges 27 and 29, but without citation of authority. The order complained of was a sufficient compliance with the statute. 185 Ala.’ 24, 64 South. 80; 176 Ala. 1, 58 South. 202 ; 5-Ala.

Brickell, Judge. Action by Billie J. Bishop against the Louisville & Nashville Railroad Company for damages for failure to promptly transport and deliver the body of his child. Judgment for the plaintiff, and the defendant appeals. Damages must be minimized, and the judgment ivas excessive. 7 Ala. App. 547, 61 South. 4S2. Tlie verdict was a quotient verdict, and should be set aside. 1S4 Ala. 244, 63 South. 549, 49 L. R. A. (N. S.) 415.

J. Martin, Judge. Attachment by O. H. Alford against J^ D. Strickland and Mrs. J. D. Strickland, in which a sewing machine seized was claimed by the Singer Sewing Machine Company. From a judgment of the justice in favor of plaintiff, claimant appealed to the circuit court, and, from a judgment there for claimant, plaintiff appeals. The plaintiff undoubtedly had a lien under sections 2948, 4747, Code 1907.

<p>Criminal Law <©=>1090(16) — In Absence of Bill of Exceptions, Motion for New Trial will not be Reviewed.</p> <p>Where there was no bill of exceptions and the time for presenting it had expired, a motion for new trial, although made, will not be reviewed.</p>

<p>,Appeal from Circuit Court, Jefferson County ; H. P. Heflin, Judge.</p> <p>Bill Carden was convicted of seduction, and he appeals.</p>

<p>Cbiminal Law <©=>1094 — There being no Bill oe Exceptions or Errors in Record, Conviction Affirmed.</p> <p>Where there íá no bill of exceptions, and the time for signing the same has expired, judgment of conviction will be affirmed; there being no error apparent of record.</p> <p><S=>For other eases see same tonic ai.d KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

C. B. Gwin, Judge. Ex parte petition by Otho Olive for writ of habeas corpus. From an order denying him bail, petitioner appeals. On any hypothesis of the evidence, petitioner was entitled to bail. 51 Ala. 1. The court properly denied bail, as evidence was in sharp conflict. 75 South. 756, and authorities there cited.

<p>Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.</p> <p>Rufus Springer was convicted of violating the prohibition laws, and lie appeals.</p>

L. Brewer, Judge. Will Whatley was convicted of gaming, and. he appeals. The defendant was entitled to an acquittal under the pleadings and facts in this case. 120 Ala. 259, 24 South. Y20; 109 Ala. 56Y, 20 South. 43; -119 Ala. 606, 24 South. 892; 8 Port. 465. There was a total failure of proof to support the plea, and the judgment should not be disturbed.

Action by the Seals Piano .& Organ Company against N. J. Bell and others, executors, for damages for wrongful attachment. From an insufficient judgment,for plaintiff, it appeals. S. W. Warrick, being on the stand, was asked by the plaintiff: “I will ask you if, after the issuance of the attachment, there was any difference, or if you had any difficulty in purchasing goods on the same terms.” The question was objected to, and the objection overruled.

L. Martin, Judge. Action by J. M. Wilkerson against Ray Rushton, as receiver of the Montgomery Light & Traction Company, for damages for killing a clog. Judgment for defendant, and plaintiff appeals.

Lloyd Ray was convicted of violating the prohibition laws, and he appeals. The ease was tried in the circuit court on the warrant and affidavit issued from the county court. So far as disclosed by the record, no trial was ever had in the county court. No statement by the state’s counsel was filed. The return to certiorari shows a trial and conviction in the county court and an appeal regularly taken to the circuit court.

C. B. Gwin, Judge. Assumpsit by S. P. Orr and others against R. I. Jones. Judgment for plaintiffs, and defendant appeals. In support of their contentions that error infected the judgment, counsel cite sections 5384, 5385, 5405, Code 1907; 148 Ala. 519, 41 South. 982; 84 Ala. 560, 3 South. 475, 5 Am. St. Rep. 393; 9 Ala. 391; 8 Port. 529; 121 Ala. 138, 26 South. 19, 77 Am. St. Rep. 34.

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>D. P. Johnson was convicted of embezzlement, and he appeals.</p>

Assumpsit by the Montgomery Cordage Company against the Alabama Cordage & Twine Company. Judgment for the plaintiff, and defendant appeals. The defendant ordered goods from .the plaintiff, which order was accepted, but the goods not shipped. Plaintiff was therefore liable in damages to the defendant. 91 Ala. 576, 8 South. 719; 78 Ala. 512; 65 Ala. 418; 68 Ala. 66; 96 Ala. 255, 11 South. 280; 181 Ala. 439, 61 South. 345; 104 Ala. 449, 18 South. 38.

<p>Appeal from Circuit Court, Tuscaloosa County; H. B. Foster, Judge.</p> <p>Action between J. T. Tillery and Sam F. Jackson. From judgment for the latter, the former appeals.</p>

<p>Appeal from Circuit Court, Jefferson County ; William E. Fort, Judge.</p> <p>Dennis Gillespy was convicted of robbery, and he appeals.</p> <p>The evidence did not support a conviction. 102 Ala. 25, 15 South. 722 ; 59 Ala. 106; 83 Ala. 1, 3 South. 749, 3 Am. St. Rep. 082; 8 Ala. App. 187, 62 South. 579; 91 Ala. 34, 9 South. 81; 69 Ala. 249 ; 80 Ala. 4;- 136 La. 345, 67 South. 26.</p> <p>The motion to exclude all the evidence and the motion for new trial are not set out in the bill of exceptions, and cannot be considered. 78 South. 309; Acts 1915, p. 59S; Id. 722.</p>

<p>1. Contracts i@=310(1) — Unilateral Contract Supported by-Consideration when Offer Accepted.</p> <p>There is no mutuality in a unilateral contract until the party claiming under it has complied with the terms of the proposition made him, but on compliance the promisor is liable; the contract having'beeome clothed with consideration relating- back.</p> <p>2. Contracts <@=10(2) — Employé Who Worked Fo-ur Months Entitled to Promised Bonus Therefor.</p> <p>Where an employer offered to give 5 per cent, bonus to men in its employ making four months’ straight time, and an employé accepted the offer by working four months, he was entitled to the bonus; the employer’s unilateral contract having become supported by consideration through the acceptance.</p>

<p>1. Brokers <§^>49(1) — Entitled to Compensation for Procuring Acceptable Land for Exchange.</p> <p>Broker who pursuant to contract procures a party ready, willing, and able to exchange lands acceptable to principal for principal’s land is entitled to compensation.</p> <p>2. Brokers <§=>49(3.) — Not Entitled t<r Compensation for Finding Party to Exchange, where Land Procured not Acceptable.</p> <p>Broker employed to procure a party willing to exchange land' acceptable to both husband and wife for husband’s, property was not entitled to compensation for procuring party •with land acceptable to husband, on husband’s execution of contract with such party in which wife’s name appeared as one of the contracting parties, where wife did not declare herself satisfied with the land and did not agree to the contract.</p> <p><§x=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>3. Brokers <@=69 — Compensation Reasonable Value oe Services in Absence oe Agreement.</p> <p>Where no price is agreed upon between the seller of real estate and his broker, who is engaged to exchange his property for other property as basis of value, and no compensation for services is agreed upon, the measure of recovery in broker’s action for compensation will be the reasonable value of the services rendered as shown by ordinary and customary charges for like services in the community.</p> <p>4. Brokers <@=85(10), 86(8) — Value oe Property Exchanged Competent, but not Controlling, on Question oe Reasonable Value oe Services.</p> <p>Where amount of broker’s compensation for services in effecting an exchange of land is not agreed on, the fair market value of the property exchanged, or offered for exchange, would be competent and relevant, but not necessarily controlling on the question of the reasonable value of the services rendered.</p> <p>5. Brokers <@=79 — Can Recover Reasonable Value oe Services under Common Counts.*</p> <p>Broker entitled to the reasonable value of services rendered can recover under the common counts.</p> <p>C. Brokers <@=54 — Compensation Dependent on Procuring Party Ready, Able, and Willing to Consummate Transaction.</p> <p>Broker engaged to exchange principal’s land for land acceptable to principal is not entitled to compensation until the party procured by him is ready, able, and willing to consummate the transaction in accordance with the terms made by tbe principal.</p> <p>7. Evidence <@=442(1) — Parol Evidence Admissible where Contract is Partly in Parol.</p> <p>Where a contract is partly written and partly parol, parol evidence is admissible to show what the contract really is.</p> <p>8. Evidence <§=445(1) — Modification of Ex-ecutory Contract may be shown by Parol.</p> <p>Where written executory contract is modified, the modification may be shown by parol.</p> <p>9. Brokers <@=65(4) — May Act for Purchaser IN ANY WAY NOT INCONSISTENT with Duty to Principal.</p> <p>A broker contracting to procure a purchasér for another to sell land to, or exchange land with, may act for the purchaser in any way not inconsistent with his duty to his principal.</p> <p>10. Trial <@=252(10) — Abstract Instruction that Broker could not Act for Both Parties was Improper.</p> <p>In a broker’s action for compensation, instruction that broker could not act for both buyer and seller in the same transaction held improper, where there was no evidence that broker acted for the purchaser or took compensation from him; such instruction being abstract.</p> <p>11. Evidence <§=471(4) — 'Witness not Permitted to give Reasons, Why he Signed Paper Placing Valuation on Property Claimed to be Incorrect.</p> <p>It was improper to permit witness who testified to value of certain property to give reasons why he had signed a paper fixing another valuation, since if the paper did not state' the true valuation the witness could so testify, and state facts concerning the value fixed, permitting the jury to draw the conclusions.</p> <p>12. Brokers <@=88(13) — Instruction that Broker could not Recover Expenses held Misleading.</p> <p>In broker’s action for compensation for procuring party to land exchange transaction, instruction that broker could not recover railroad fare spent on trip to show the property to be exchanged to defendant held misleading.</p> <p>13. Appeal and Error <@=1064(1) — Misleading Instruction held ' not Ground foe Reversal.</p> <p>In .broker’s action for compensation for procuring party to exchange contract, the granting of misleading instruction that broker could not recover expenses in showing property to principal held not reversible error on appeal from judgment for principal.</p> <p>14. Brokers <@=8S(10) — Instruction as to Procuring Cause held Misleading.</p> <p>In broker’s action for compensation, instruction as to broker being the procuring cause held misleading, and therefore properly refused.</p> <p>15. Brokers t@=88(7) — Requested Instruction held Properly Refused as Misleading.</p> <p>In broker’s action for compensation, broker’s requested instruction, submitting the issue of the case, held properly refused as misleading.</p> <p><@=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Circuit Court, Mobile County; Claude A. Grayson, Judge. Action by Henry J. Lindsey against Rowe Broadus for breach of warranty and deceit. Judgment for plaintiff, and defendant appeals. The first count is for breach of warranty and eviction after suit. The second and third counts are practically the same, each alleging that at the 'time the warranty was made the title was in the government of the United States, and was duly patented to others than the plaintiff.

Grayson, Judge. Noah Bisliop was convicted of manslaughter, and appeals. The defendant was indicted and tried on an indictment charging murder in the first degree. The defendant being held in confinement under the charge, the trial court, having reasonable ground to doubt the sanity of defendant, suspended the trial and instituted an investigation as to the sanity, of defendant under seqtion 7178 of the Code of 1007.

Monroe Griggs was convicted of burglary and grand larceny, and he appeals. The record is regular, and in the absence of a bill of exceptions no other question is-presented. 10 Ala. App. 85, 65 South. 262.

<p>Criminal Law <@=>1001 — Conviction Affirmed After Time for Filing Bill of Exceptions.</p> <p>Where there is no bill of exceptions and the time for filing same has expired and the record is free from error, a judgment of conviction will be affirmed.</p> <p><§=>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.</p> <p>James Bigham was convicted for unlawfully killing a mule, and he appeals.</p>

<p>1. Bail <§=>43 — Defendant should be Admitted to Bail in Robbery Case, where Capital Punishment would not be Imposed.</p> <p>Though Code 1907, § 6337, declares that a defendant cannot be admitted to bail when he is charged with an offense which may be punished by death, if the court or the magistrate is of the opinion on the evidence that he is guilty of the offense in the degree punished capitally, a defendant accused of robbery, which may be punished capitally, should be admitted to bail, where. the evidence showed that ho would not be so punished.</p> <p>2. Bail <§=>49 — Presumption of Guilt Authorizing Capital Punishment may be Overcome.</p> <p>The presumption on application for bail by one charged with robbery that he was guilty in- the highest degree, which is punished capitally, may be overcome by proof.</p> <p>3. Bail <§=>43 — Larceny <§=>12 — Robbery <§=>5 —• Where Property is taken by Stealth, Offense is Larceny, not Robbery, and is Bailable.</p> <p>The offense of robbery is against the person and property, and where a pickpocket by stealth removed another’s pocketbook he is not guilty of the offense of robbery, but larceny, and should be admitted to bail.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Larceny; Robbery.]</p> <p>4. Bail <§=>43 — Larceny is Bailable. Larceny is bailable as a matter of- right.</p> <p>5. Indictment and Information <@=>191(9)— Robbery Includes Larceny.</p> <p>The offense of robbery includes a charge of larceny.</p>

A.-Steele, Judge. T. H. Johnson was convicted of violating the road law of Blount county, and he appeals. The facts sufficiently appear, with the exception that it also, appears that the auto truck was the property of the Blount -Lumber Company, of which Johnson was president, and that the regular state and county license on said truck had been paid. The defendant should have been discharged under .the agreed statement of facts. Acts 1915, pp. 386 to 533; Acts 1915, p. 573.

B. Foster, Judge. Action by the Central Hardware Company, begun by levy upon certain property as the property, of A. G. Anderson, with claim to same by Henry King. Judgment for plaintiff in execution, and the claimant appeals.

Loyd Tate, Judge. Lib Cook and Maggie Holt were convicted of living' together in a state of adulterous fornication, and they appealed. The evidence did not make out a case, and the defendants were entitled to an acquittal. 4 Port. 467; .29 Ala. 313.

<p>1. Darcent &wkey;>G8(2) — Evidence Sufficient to make Intent a Jury Question.</p> <p>In a prosecution for larceny of a hog, whether defendant’s taking of the hog was with felonious intent hold for the jury.</p> <p>2. Criminal Law <&wkey;413(l) — Self-Serving Declarations Inadmissible.</p> <p>In a prosecution for larceny of a hog, it was not competent for defendant to prove a statement made by him to a third person regarding the hog alleged to have been stolen, since a defendant cannot make evidence for himself.</p> <p>3. Criminal Daw <&wkey;419, 420(10) — Evidence Inadmissible as Hearsay.</p> <p>In a prosecution for larceny of a h»g, where defendant testified that his nephew knew a hog, which defendant had lost, and he sent him to a certain place to see if a hog there belonged to him, court properly sustained objection tO' question asked by his counsel, “What did your nephew report to- you?” being hearsay.</p> <p>other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.</p> <p>Action by Peter B. Laurendine against Walker D. Hines, as Director General of Railroads, for damages for injuries to an automobile track. Prom a judgment for plaintiff, defendant appeals.</p> <p>The pleadings for the plaintiff sufficiently appear from the opinion of the court, as do assignments of error 1, 2, 4, 5, 8, and 9. The demurrers to the first count, made the basis of assignments 3, 6, and 10 are as follows:</p> <p>Ho facts are stated showing a duty arising on the part of defendant relative to plaintiff’s automobile; it is not shown by what means plaintiff’s automobile became -stalled on the track of the railroad; it is not shown that the stalling of the automobile was not plaintiff’s fanlt; because it is not alleged whether -the negligence complained of was initial or subsequent in nature.</p> <p>The first plea sets up contributory negligence, in that plaintiff’s agent, acting in the line and scope of his authority, while driving said automobile, immediately before and at the time of the occurrence coinplained of, attempted to cross the track in front of a moving engine without first stopping, looking, and listening.</p> <p>The third plea sets up the same fact, and alleges that said agent negligently drove said automobile upon the track, and stopped said automobile upon said track in front of the approaching train, which struck it. The fifth plea is the same as the third, except that it adds the following;</p> <p>“After becoming conscious of the immediate approach of the train and until struck by said train.”</p> <p>The sixth plea sets up that said agent negligently failed to stop said automobile before reaching the said railroad track, and negligently failed to permit said automobile to cross said track, which defendant avers could have been done by permitting it to continue at the same rate of speed with which it approached said track, and which would have permitted it to clear said track before being struck by the approaching train, but in some way stopped said automobile immediately in front 'of the approaching train, and so closely thereto as that it was impossible for the operatives of the train to stop the same after seeing the automobile stop upon the track before striking it.</p> <p>The other facts sufficiently appear. •</p> <p>There was a misjoinder. 1 S. W. 498. This may be raised by motion to strike or demurrer. 186 Ala. 443, 65 South. 78; 13 Ala. App. 47, 69 South. 302; 114 Ala. 128, 21 South. 992. The court improperly overruled the demurrers. 170 Ala. 409, 54 South. 203; 15 Ala. App. 507, 74 South. 156; 1S1 Ala. 491, 61 South. 361; 171 Ala. 251, 55 South. 170; 200 Ala. 238, 75 South. 996; 199 Ala. 654, 75 South. 15; 199 Ala. 571, 75 South. 159. The court improperly sustained demurrers to plea 3. 151 Ala. 335, 43 South. 844; 125 Ala. 191, 27 South. 770; 33 Oyc. 986. On these authorities the court erred in sustaining demurrers to the other pleas. The counsel discuss assignments of error relative to evidence, but without further citation of authority. The court erred in declining to give the affirmative charge<( for the defendant. 222 U. S. 506, 32 Sup." Ct. 114, 56 Ii. Ed. 288; 172 Ala. 597, 55 South. 812; 196 Ala. 133, 72 South. 67; 197 Ala. 151, 72 South. 328; 81 South. 15.</p> <p>There was no misjoinder. 190 Ala. 36, 66 South. 655; 14 Ala. App. 187, 68 South. 801; 14 Ala. App. 287, 69 South. 993; 14 Ala. App. 380, 70 South. 986; 186 Ala. 443, 65 South. 78; section 5329, Code 1907. There was no tenable objection to count 1. 172 Ala. 600, 55 South. 812. Counts 6 and 4 were practically eliminated. Counsel discuss action of court on the pleading, but without further citation of authority. The defendant was not entitled to the affirmative charge. 15 Ala. App. 571, 74 South. 396; (D. C.) 247 Fed. 888; 246 Fed. 786,-159 C. C. A. 88, h. R. A, 1918C, 795; (D. C.) 249 Fed. 609; 233 Mass. 162, 123 H. E. 621.</p>

W. Haralson, Judge. Paul West was convicted of assault with intent to murder, and he appeals. The following are the 'charges refused to the defendant: Á. Gentlemen, if out of any part of the evidence in this case there arises in your mind any part of the evidence which when taken together with all of the evidence creates in your mind a reasonable doubt as to defendant’s guilt then you should acquit him.

Grayson, Judge. • Action by the R. O. Harris Grocery Company against the 'Mobile Light t& Railroad Company for damages to an auto truck and its contents. Prom a judgment for plaintiff, defendant appeals. The assignments of error referred to are as follows: (1) What was the reasonable value of this car after the accident and after the repairs had been made? (question to plaintiff’s witness Shaw, to which defendant objected).

G. -Key, Judge. Habeas corpus by T. F. Smith against Mrs. P. O. Smith for the custody of the children. Decree for respondent, and petitioner appeals. The court erred in the judgment rendered. 31 Ala. 425; 60 Ala. 299; 134 Ala. 317, 32 South. 659, 92 Am. St. Rep. 35.

Pugh, Judge. Action by L. A. Marler against the United States Cast Iron & Foundry Company for damages foivpersonal injuries. The defendant was entitled to the affirmative charge, as no negligence on the part of any person in control of an engine or car upon the railway was shown. 172 Ala. 505: subdivision 5, § 3910, Code 1907. A person who would disaffirm a fraudulent release must return whatever he has received under it; without this no recovery can be had.

C. B. Gwin, Judge. Action by Gilbert Gardner against the Sloss-Sheffield Steel '& Iron Company for damages for personal injuries. Judgment for plaintiff, and' defendant appeals. Gilbert Gardner along with others ivas a mucker loading ore on cars at a. mine called Sloss mine, and with some others was hit by flying rocks from a shot on the slope. Gardner’s arm was injured severely by one of the rocks, while the others escaped injury.

Grayson, Judge. Action by Nicholas Druhan, for the benefit of the Georgia Casualty Company, against the Mallory Steamship Company, to recover an indemnity paid because of injury to one of the servants of the plaintiff. Judgment for plaintiff, and defendant appeals. The facts and the exceptions to the evidence sufficiently appear from the opinion of the court.

Brickell, Judge. Action by M. C. Camody against the Louisville & Nashville Railroad Company, to recover demurrage. Judgment for plaintiff was reversed (82 South. 6481), and on certiorari to the Supreme Court the judgment of the Court of Appeals was reversed, and the cause remanded, with instructions (84 South. 8242). Counsel discuss the errors assigned on the original hearing, with citátion of authority, but they cite no authority on the propositions as cited by the court.

B. Foster, Judge. Assumpsit by the McKinley Music Company against P. Lewis. Judgment for defendant, and plaintiff appeals. The defendant entered into a contract with plaintiff to have shipped to him certain articles of merchandise. The contract was made on October 25, 1916, and, tbe goods not having been received on November 21, 1916, defendant countermanded the order.

S. Williams, Judge. Minnie Wade was convicted of larceny, and she appeals. The facts, as stated in brief of counsel for appellant and borne out by the record, are as follows: ■ The defendant, Minnie Wade, appellant here, was a negro girl about 17 years of age, and was employed as house servant by Dr. and Mrs. Cornell. With them lived their daughter, Miss Florence Cornell.

A. Steele, Judge. Action by Luvisa Crocker, by her next friend, against Marion Hopper and his wife, for damages for personal injury resulting from a bite of a dog. Judgment for plaintiff, and defendants appeal. The pleadings and the tendencies of the evidence sufficiently appear from the opinion of the court. The following charges were refused to the defendant: (2) Unless the dog that bit plaintiff was mad or rabid, plaintiff would not be entitled to recover.

Greene, Judge. 'Action by James Glover against the Western Union Telegraph Company, for breach of contract to deliver telegram. Judgment for plaintiff, and defendant appeals. The message was interstate, and plaintiff was not entitled to recover damages for mental anguish. 198 Ala. 682, 73 South. 973; 200 Ala. 65, 75 South. 393. The contract was not made with the defendant, but with the agents of the federal government. 250 U. S. 163, 39 Sup.

M. Miller, Judge. Earnest Coleman was convicted of murder in the second degree, and he appeals. The provisions of the jury law are mandatory, and, not having been complied with in this case, the conviction is unlawful. 171 Ala. 603, 55 South. 120; 172 Ala. 418, 55 South. 601; 172 Ala. 413, 55 South. 609; 185 Ala. 20, 64 South. 80; 16 Ala. App. 303, 77 South. 453.

I. Jones, Judge. Wess Howell was convicted of larceny, and he appeals. Defendant was charged by affidavit before a justice of the peace with petit larceny of a hog, was convicted, and on appeal to the' circuit court the solicitor filed a statement under the statute charging the larceny of a hog of the value of $15. To this complaint defendant filed a plea to the jurisdiction of the court, along with his plea of not guilty.

A. Sliarpe, Judge. ■ Assumpsit by the J. B. Colt Company against the Armstrong Light Company. From an insufficient judgment for plaintiff, plaintiff appeals. The court improperly construed the contract as imposing a penalty, while it was a contract for liquidated damages. 136 Ala. 610, 33 South. 884; 137 Ala. 132, 34 South. 13; 138 Ala! 650, 35 South. 694; 2 Ala. 425; 136 Ala. 600, 33 South. 818; 85 Ala. 552, 5 South. 149.

Grayson, Judge. • Will Abrams was convicted of violating the prohibition law, and he appeals. In producing its testimony, the first sale was shown to have been on August 2d, and over the objection of the defendant the state was permitted to show by the same witness several other sales of whisky previous to this. The other facts sufficiently appear from the opinion of the court.

<p>Appeal from Circuit Court, Coffee County; F. Lloyd Tate, Judge.</p> <p>Jay Suxton was convicted of grand larceny, and he appeals.</p>

Brickell, Judge. Heck King was convicted of murder in the second degree, and he appeals. Defendant was under no duty to retreat. 106 Ala. 1, 17 South. 328;- 89 Ala. 34, 8 South. 22, 18 Am. St. Rep. 87. Defendant should have been permitted to have shown threats made him by deceased. 88 Ala-. 85, 7 South. ,335 ; 68 Ala. 156 ; 71 Ala. 351.

Appeal-from Circuit Court, Jefferson County; J. C. B. Gwin, Judge. T. W. Loveless, A. F. Parsons, and H. C. Caldwell entered into an agreement to arbitrate certain land lines and certain land values. There was an award, and, it not having been carried out, Loveless filed a motion to enforce said award.

<p>Appeal from Circuit Court, Blount County; W. J. Martin, Judge.</p> <p>A1 Henry Vaughn was convicted of murder in the second degree, and he appeals.</p> <p>For former report of this see Vaughan v. State, 201 Ala. 472, 78 South. 378, where a statement of many of the facts are found to he set out. Matter relative to the motion to quash the venire sufficiently appear from thp opinion, as do many of the exceptions to evidence. The questions to the witness Lon Wallace were as follows:</p> <p>“By the State’s Counsel: You remember my coming to the field where you were plowing some ten days after the shooting, don’t y.ou?”</p> <p>“You remember me having this paper, don’t you, and reading it over to you?”</p> <p>“Do you remember me telling you that wo did not want you to make any statement of anything but the truth do you?”</p> <p>“Then you told me the statement was true.”</p> <p>Objections were interposed to each of these questions, were overruled, each question answered in the affirmative, and motion made to exclude the answers.</p> <p>The following charges refused' to the defendant are directed to be set out:</p> <p>(12) Insulting or obscene language used by the defendant, if you find such were so used, will not deprive him of his right of self-defense. Therefore, if you find from the evidence that Ake Vaughn, the father of A1 Henry Vaughn, made use of any insulting or obscene language against the deceased, Dick Stevens, the fact of his having used such obscene or insulting language did not deprive Ake Vaughn of his right of self defense against an attack or threatened assault by the deceased, Dick Stevens. And if the deceased at the time of the homicide was making, ,or' about to make, an attack on Ake Vaughn, or it reasonably appeared to the son of Ake Vaughn, A1 Henry Vaughn, the defendant in this case, that such an attack was being made or about to be made, viewing the case from the defendant’s standpoint the defendant A1 Henry Vaughn had the right to defend the person of his father from such attacks or threatened attack, and his right to do so would not be abridged by such previous use of insulting or obscene language, if such language was not used for or was not reasonably calculated to provoke, encourage, or bring ou a difficulty.</p> <p>(2) The law gives a person the right to use such force as may be reasonably necessary, under the circumstances by which he is surrounded, to protect himself from great bodily harm, as it does to prevent his life being taken, and this right is imputed by law to the son of a person so jeopardized. The son may justifiably use this necessary force to save his father from any felonious assault.</p> <p>(6) If Ake Vaughn had no reasonable cause or ground to believe that Stevens was about to assault him in such a way or manner as to endanger his life or put him in peril of serious bodily harm until he was knocked down, he was under no duty to retreat.</p> <p>(34) If at the moment the fatal shot was fired the circumstances were such that they impressed the defendant with the reasonable and honest belief that his father was in danger of losing his life or of suffering serious bodily harm, and if at that moment there did not reasonably appear to defendant a means of escape without increasing his danger, then you must find the defendant not guilty unless the state has proven beyond all reasonable doubt that either Aka Vaughn or the defendant was at fault in bringing on the difficulty.</p> <p>The venire should have been quashed. Acts 1909, pp. 312-318. The court erred in permitting the evidence of specific acts as an impeachment of the character of -the witness for truth and veracity. 46 Fla. 20, 35 South. 667; 15 Ala. App. 665, 74 South. 756, and cases there cited; 1 Greenleaf, § 580; 28 Ala. 61. The fact that the witnesses had been drinking with the defendant, and had played cards with him prior to the difficulty, was not admissible. 161 Ala. 114, 49 South. 461; 111 Ala. 92, 21 South. 330. It was error to require defendant’s counsel to produce his certified, transcript of the evidence on former trial. Section 5, Const. 1901; 15-Okl. Cr. 146, 175 Pac. 555; 174 Ala. 531, 56 South. 956; 107 Ala. 151, IS South. 234; 116 U. S. 616, 6 -Sup. Ct. 524, 29 L. Ed. 746; 86 Ala. 610, 6 South. 110, 4 L. B. A. 766, 11 Am. St. Bep. 84; 131 Ala. 16. Charges asserting that abusive or insulting language, if not used for the purpose of provoking a fight, do not deprive defendant of the right of self-defense. 79 Ala. 283; 123 Ala. 69, 26 South. 515; 129 Ala. 23, 30 South. 348; 8 Ala. App. 7, 62 South. 392. The charges defining as to what course may be used, and when, should have been given. 78 South. 378.</p>

Merrill, Judge. Jordan West was convicted of murder in the second degree, and be appeals. There is no error in the record, and the cause should be affirmed.

Ferguson, Judge. Action by the Farmers’ Produce Company against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. The complaint is as follows: Count 1.

E. Fort, Judge. Louis Brandes was convicted of violating the prohibition law, and he appeals. The court’s action, in its remarks to the witnesses and in its examination of them, was highly prejudicial to the defendant. 59 Ala. 83. The bill of exceptions in this case is a misnomer, and nothing is presented for review. 16 Ala. App. 469, 79 South. 143 (both cases).

' Appeal from Circuit Court, Jefferson County; Romain Boyd, Judge. Assumpsit by L. & E. Lamar, claiming as indorsees of a check, against Albert C. Deshazo. Judgment for plaintiffs and defendant appeals. The title of a person who negotiates an instrument is defective, when he obtains the instrument by fraud or other unlawful means. Section 5010, Code 1907; 145 Iowa, 185, 123 'N. W. 1000, 29 L. R. A. (N. S.) 638; 201 Ala. 197, 77 South. 723.

P. Almon, Judge. Dalias Jones was convicted of murder in tlie second degree and be appeals. The acts and declarations admitted in evidence were not a part of the res gestae. 142 Ala. 112, 38 South. 261; 91 Ala. 39, 8 South. 689; 187 Ala. 1, 65 South. 950; 155 Ala. 44, 46 South. 259; 88 Ala. 73, 7 South. 52; 68 South. 544; 15 Ala. App. 135, 72 South. 608.

Briekell, Judge.. The defendant Herman Harwell was indicted and tried jointly with Erie Posey on a charge of adultery or fornication. The defendant Harwell alone was convicted, and from the judgment, he appeals.

<p>Appeal from Circuit Court, Madison County ; Robert C. Brickell, Judge.</p> <p>Frank Jacobs was convicted of knowingly permitting cattle to run at large and go upon the lands of another without his consent, in violation of the stock law regulations, and he appeals.</p> <p>Counsel insist that under the evidence the defendant was entitled to the affirmative charge, and also upon the ground that the name of the owner of the land trespassed upon was not alleged and proven. 11 Ala. App. 225, 65 South. 848.</p> <p>Proof of possession was sufficient. He did not have to have actual title. Rule 35, C. C. P.; 155 Ala. 120, 46 South. 646. The complaint charged an offense. 147 Ala. 104, 41 South. 911. The records of the commissioners’ court were admissible. 157 Ala.- 599, 48 South. 84; -Gus Sims v. State, post, p. 408, 85 South. 836.</p>

■Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge. Bud Bell, alias Will Rogers, was convicted of larceny, and he appeals. The evidence tended to show that two green country negroes came to Birmingham, named Ananias Thompson and his wife, Rosa, and were met by a very nice, polite negro, called variously Bud Bell and Will Rogers, who offered to show them to a street car, but in the meantime desired to have them change a $100 bill.

Briekell, Judge. Bill Aaronheart was tried and convicted for a violation of the prohibition law, and from the judgment hfe appeals. After judgment, the defendant made a motion for a new trial, which motion was overruled, and from the judgment he appeals.

Brickell, Judge. Edd Spelce was tried and convicted on a charge of having possession of prohibited liquors contrary to law after January 25, 1919, and from the judgment he appeals. Under the evidence, the defendant was entitled to the affirmative charge, and the court erred in not granting his motion for a new trial. 16 Ala. App. 152, 75 South. 828: 16 Ala. App. 151, 75 South. 827 ; 81 South. 366; 65 South. 683; 90 Ala. 630, 8 South. 383, 24 Am. St. Rep. 850.

W. Haralson, Judge. William A. Denham was convicted of violating the prohibition law, and he appeals. The following charges were refused to the defendant: (1) The court charges the jury that, Bryant being an accomplice in the offense charged, the defendant cannot be convicted on the evidence in this case. (2) The court charges the jury that under the evidence they cannot convict the defendant of selling prohibited liquors or beverages.

Brickell, Judge. Will Broglan was convicted of violating the prohibition laws, and he appeals.

<p>Appeal from Circuit Court, Madison County; Robert C. Brickell, Judge.</p> <p>- George White was convicted for a violation of the prohibition law, and appeals.</p>

<p>Appeal from Circuit Court, Madison County; Robert C. Brickell, Judge.</p> <p>Erwin Hall was convicted of violating the prohibition law, and he appeals.</p>

' Merrill, Judge. Petition for writ of habeas corpus on behalf of Wesley Forbes. From judgment denying the writ, petitioner appeals. Petitioner was entitled to inquire into the legality of the proceedings. 73 Ala. 503; 142 Ala. 72, 39 South. 55; 188 U. S. 691, 23 Sup. Ct. 456, 47 L. Ed. 657. He may show that the process is void, or that he is not a fugitive from justice, and may do this by oral testimony.

<p>Appeal from Circuit Court, Madison County; Robert C. Briekell, Judge.</p> <p>J. A. McClure was convicted of a violation of the prohibition law, and appeals.</p>

Merrill, Judge. Action by Julia B. Thompson, by next friend, against the Southern Railway Company for damages for personal injuries. There was judgment for plaintiff, which on motion of the defendant was set aside, and plaintiff appeals. The case was tried on counts 1 and 2 of the complaint.

<p>Appeal from Circuit Court, Etowah County ; Woodson J. Martin, Judge.</p> <p>G-us Sims was convicted of violating the-stock law, and he appeals.</p> <p>The defendant was indicted at the Spring term, 1919, of the circuit court of Etowah county. The indictment contained two counts; one drawn under section 7813 of the Code of 1907, and the other under an act of the Legislature of 1909. Acts 1909. p. 42. The defendant was put on trial on this indictment before the judge of the circuit court sitting without a jury, was convicted, and from the judgment of conviction, he appeals.</p> <p>Counsel discusses the errors assigned, but without citation of authority, further than to show that stock can run at large, unless prohibited by statute. 93 Ala. 427, 9 South. 378, 30 Am. St. Rep. 61.</p> <p>A person may testify that the land is within a particular district. 87 Ala. 441, 6 South. 349; 104 Ala. 33, 16 South. 135. The witness could also testify that the defendant owned the stock, or it had been under his control. 24 Ala. 9 ;• 69 Ala. 79.</p>

A. Steele, Judge. Action by D. H. Johnson against the Sugár Valley Land Company and another for damages for trespass. Judgment for plaintiff, and defendants appeal.

Kyle, Judge. Petition by Love Kimbrell for habeas corpus. From an order granting bail to petitioner, the State appeals. Counsel insist that, as the time for sending bill of exceptions has not expired, therefore the case could not be considered until the clerk had an opportunity to prepare and forward the proper transcript. 170 Ala. 142, 54 South. 496.

W. B. Hawkins, Judge. James F. Brown was convicted of violating the prohibition law, and he appeals. The complaint contained five counts, each charging an offense denounced by the statutes as a violation of the prohibition law.

<p>Appeal from Circuit Court, Franklin County; C. P. Almon, Judge.</p> <p>Ollie Fowler was indicted and convicted on a charge of assault to murder, and he appeals.</p>

<p>Appeal from Circuit Court, Marengo County; A. B. Foster, Judge.</p> <p>Flemmie Williams was convicted of manslaughter, and appeals.</p>

P. Heflin, Judge. Preston Johnson was convicted of robbery, and he, appeals. Counsel discusses the error assigned and the charges refused, but in view of the opinion it is not deemed necessary to here set it out.

A. Pearce, Judge. Henry Walker was convicted of robbery, and lie appealed. Omitting formal charging parts, the indictment is as follows: Henry Walker feloniously took one twenty-dollar bill, of the value of twenty dollars, and four five-dollar bills of the value of twenty dollars, the property of Sol Dismuke, from his person and against his will by violence to his person, or by putting him in such fear as unwillingly to part with the same.

Merrill, Judge. John Ledbettqr was convicted of violating the prohibition law, and he appeals. The verdict was a quotient verdict and should have been set aside. 113 Ala. 620, 21 South. 328; 184 Ala. 244, 63 South. 549, 49 L. R. A. (N. S.) 415; 274 111. 637, 113 N. E. 934. ■ Under the evidence the verdict was not a quotient verdict. 142 Ala. 162, 37 South. 925; 148 Ala. 115, 42 South. 1024; 4 Johns. (N. V.) 487; 80 South. 36.

<p>1. Exceptions, Bill of &wkey;>43(l) — Presentment oe Bill within Time Jurisdictional.</p> <p>Presentment of bill of exceptions to trial judge within 90 days from rendition, of judgment as required by Code 1907, § 3019, is jurisdictional; the statute being mandatory. -</p> <p>2. Exceptions, Bill of <&wkey;43(2) — Affidavit of Inability because of Judge’s Absence from State does not Excuse Failure of Bill to Show Presentation.</p> <p>Affidavit by appellant’s attorney that bill of exceptions had been prepared, but could not be presented because of trial judge’s absence from state, could not excuse failure of bill of exceptions to show presentation within 90 days as required by Code 1907, § 3019, the proper procedure in the event of the judge’s absence being to establish a bill o'f exceptions before a justice of the Supreme Court, or a judge of the Court of Appeals,'as authorized by section 3022, as amended by Acts 1915, p. 816.</p> <p>3. Appeal and Error <&wkey;655(2) — Court of Appeals will Strike Bill of Exceptions not Presented to Judge within Time.</p> <p>Bill of exceptions not presented to trial judge within 90 days from rendition of judgment as required by Code 1907, § 3019, will be stricken by the Court of Appeals on its own motion, notwithstanding section 3020, forbidding appellate courts to strike a bill of exceptions ex mero motu; such statute applying only to the unseasonable signing of the bill by the trial judge, and not to its unseasonable presentation</p> <p>ifesFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

g. Williams, Judge. Alto Horn was convicted of failing or refusing to dip his cattle, and he appeals.

County ; Claude A. Grayson, Judge. John H. Castona was convicted, of an assault with intent to murder one Otto Delius, and he appeals. The facts and the exceptions to evidence sufficiently appear from the opinion of the court. Counsel discusses assignment of error relative to evidence, but without citation of authority. Charge 4 should have been given. 86 Ala. 16, 5 South. 651.

Loyd Tate, Judge. Baymond Tarver was convicted of seduction, and he appeals. The court erred in not granting the motion to exclude the state’s evidence, as it failed to make out a prima facie case. 16 Ala. App. 213, 77 South. 83; 162 Ala. 81, 50 South. 281; 162 Ala. 74, 50 South. 279, 19 Ann. Cas. 867; 118 Ala. 99, 24 South. 43; 90 Ala. 641, 8 South. .821; 11 Alá. App. 134, 66 South. 126. Eor the same reason the defendant was entitled to the affirmative charge.

<p>Appeal from Circuit Court, Madison County; Robert C. Briekell, Judge.</p> <p>Tom Campbell was convicted of violating the prohibition law, and he appeals.</p>

<p>1. Criminal Law <&wkey;400(4) — Books must be Produced to Snow Contents.</p> <p>In a prosecution for grand larceny of a warehouse at a steamboat landing, it was necessary for the state to produce the shipping boohs of a steamboat company in order to show their contents, and a witness could not testify as to their contents without proper predicate.</p> <p>2. 'Criminal Law @=338(3) — Larceny @= 51(1) — Property on Premises Previous to Robbery and Things found at Defendant’s House Admissible.</p> <p>In a prosecution for grand larceny from a warehouse at a steamboat landing, the state could prove by a witness that there was a bag of coffee put off at the landing on the day before the merchandise was missing, there being evidence tending to show it was the coffee stolen, and testimony as to flour found at defendant’s house was admissible.</p> <p>3. Criminal Law @=736(2) — Voluntary Character of. Confessions Matter of Law for Court.</p> <p>Whether confessions are freely and voluntarily made is a matter of law to be determined by the court.</p> <p>4. Criminal Law @=115S(4) — Determination as to Voluntary Character of Confessions not to be Disturbed.</p> <p>In a prosecution for grand larceny, determination of the trial court as to the voluntary character of confessions of defendant testified to by a witness excused from the rule held not to be disturbed, having been made on the witnesses before him, consequently with advantage.</p> <p>5. Criminal Law @=538(3) — Evidence by way of Confession will Support Conviction.</p> <p>A confession shown to be voluntary is evidence which will support conviction.</p> <p>6. Criminal Law &wkey;741(3) — Weight of Confession for Jury.</p> <p>The weight to be given defendant’s alleged confession is a question for the jury.</p> <p>{gz^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

W. Haralson, Judge. ■' Action of assumpsit by W. L. Kirkpatrick against F. L. Sparkman. Judgment for plaintiff, and defendant appeals. The original action was for an account for merchandise and goods sold to the amount of $55. The defendant pleaded byway of set-off that the plaintiff was indebted to the defendant for cross-ties, and extract wood to the amount of $300.

Kyle, Judge. Jim Williams was convicted of perjury, and he appeals. The perjury is alleged to have been committed by .defendant as a witness on the trial of Doyle Hooten, who was charged with murder. The stenographer’s official notes were used as evidence to prove the testimony of the defendant. The defendant was indicted, tried, and convicted of perjury, and from the judgment he appeals.

<p>Criminal Law <&wkey;1091^-JuDGMENT Affirmed after Expiration of Time fob filing Bill of Exceptions.</p> <p>Where an appeal is upon the record proper, without a bill of exceptions, and the time for filing the bill of exceptions has expired, and the record is free from error, the judgment will be affirmed.</p> <p><&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

'Appeal from Circuit Court, Jefferson County ; J. C. B. Gwin, Judge. Action in trespass by Mrs. Annie Comstock and another against the Gulf States Steel Company and another. Judgment for the plaintiffs, and defendant Gulf States Steel Company appeals. It is deemed unnecessary to set out the pleadings, also assignments of error 1 to 6, inclusive, 9 to 15, inclusive, and 17, as they sufficiently appear.

<p>Criminal Law <&wkey;1086(2) — Conviction by Circuit Court Reversed, in Absence of Record Showing how it Obtained Jurisdiction.</p> <p>Where there is nothing in the record to indicate appeal was taken from county to circuit court in prosecution for unlawfully carrying a pistol, and nothing to show how circuit court obtained jurisdiction, no brief statement of case having been filed by the solicitor in circuit court, as required by Code 1907, § 6730, judgment of conviction by circuit court must be reversed.</p> <p><&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

L. Brewer, Judge. Attachment by W. H. Burdette against T. J. Definy to enforce the laborer’s lien, with elaini by William Gray for the property levied on. Judgment for plaintiff, and claimant appeals. Thtf following charges in writing were requested by the claimant, and were refused: (1) and (2) Affirmative instructions to find for claimant.

<p>Appeal from Circuit Court, Jefferson County; J, C. B. Gwin, Judge.</p> <p>Action by Mrs. Avarillar Roy agaiust the Commonwealth Life Insurance Company of Louisville, Ky. Prom judgment for plaintiff, defendant appeals.</p> <p>For the pleading see report of the same case on certiorari to the Supreme Court.</p> <p>Assignment of error is as follows:</p> <p>The court erred in overruling defendant’s objection to the question propounded by plaintiff to Mrs. Roy: “At the time he got the policy from you to attach this rider to it, or at the time he brought it back to you, did he make any statement to you about the payment of the extra premium on the policy? If so state what he said.” ,</p> <p>The oral charge of the court excepted to was that part of the charge submitting to the jury the question as to whether or not Adams, the agent, did waive payment of the premium due under the terms of the policy.</p> <p>The charge made the basis of assignment 9 is as follows:</p> <p>The court charges the jury that, if you believe the evidence in this case, Adams had no authority to waive the payment of the $50 additional premium, provided in the consent to serve, attached to said policy, to be paid by the insured to the defendant.</p> <p>Assignment 15, practically the same as assignment 9.</p> <p>Assignment 19, practically the same as assignment 9.</p> <p>Assignment 10:</p> <p>The court charges the jury that, if you believe the evidence in this case, the payment of the additional premium of $50 by the insured to the defendant before engaging in_ the military service of the United States in time of war beyond the land territory of the 48 states and the District of Columbia of the United States, was a prerequisite to the putting in force the policy to cover Ms death in such service, as a result of such service.</p> <p>Assignments 17 and 18 state the same legal proposition as is asserted in assignment 10, the phraseology being varied somewhat.</p> <p>Assignment 13:</p> <p>The court charges the jury that if you are reasonably satisfied from the evidence that G. W. Adams told plaintiff no more, in substance, than, “You will not have to pay this extra premium, and if I were you I would not do it,” this did not in fact amount to a refusal to accept the premium nor to a waiver thereof.</p> <p>Assignment 14 states the same legal proposition.</p> <p>The following authority will demonstrate that the court erred in its rulings on the pleadings, the evidence, and the charges to the jury: 96 Ala. 568; 11 South. 671; 74 Ala. 487; .138 Ala. 526, 35 South. 463; 45 South. 208; 155 Ala. 265, 46 South. 578, 130 Am. St. Rep. 21; 187 U. S. 335, 23 Sup. Ot. 126, 47 L. Ed. 204; 25 Cyc. 861, note 37; 109 Mass. 430; 94 Ala. 434, 10 South. 530; 5 Ala. App. 392, 59 South. 336.</p> <p>There was no error in the rulings on the pleading. 128 Ala. 242, 29 South. 646; 201 Ala. 486, 78 South. 392; 130 Ala. 356, 30 South. 496; 157 Ala. 663, 47 South. 572; 187 Ala. 364, 65 South. 536; 186 Ala. 420, 65 South. 143; 199 Ala. 164, 74 South. 63.</p>

A. Pearce, Judge. Georgia Russell was indicted for murder in the first degree, convicted of manslaughter in the first degree, and she appeals. The charge was that defendant killed Claudie Jones by cutting her with a knife. The witnesses Gussie Lewis and Willie Austin testified that at times the defendant would act peculiarly; that she would curse, shut herself up in hex- room, and not let any one come in.

<p>Criminal Law <&wkey;260 (11) — Conviction not Disturbed unless Palpably Contrary to Weight oe Evidence.</p> <p>Where defendant accused of violating the prohibition law, was tried by a court without a jury, the conviction will not be disturbed on the ground of insufficiency of the evidence, the trial court having had the opportunity of observing the testimony and demeanor of the witnesses, unless its conclusion was palpably contrary to the great weight of the evidence.</p> <p>tgzsFor other-cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Trespass &wkey;>89 — General Affirmative Charge for the State Erroneous, where. Information Laid Possession Jointly in Several and Evidence Showed Possession in One Only.</p> <p>Where the information for trespass laid' the possession of the property jointly in five parties, while the uncontradicted evidence disclosed that the possession was in only one-party, it was error to give the general affirmative charge for the state.</p> <p>2. Criminal Law e&wkey;561(l) — Jury Authorized to Return Verdict of Guilt only WHEN THEY BELIEVE EVIDENCE BEYOND A Reasonable Doubt.</p> <p>A jury is only authorized to return It verdict of guilt against a defendant charged with crime when they believe the evidence beyond a reasonable doubt.</p>

' Appeal from Circuit Court, Jefferson County ; J. C. B. Gwin, Judge. Action by Susie Davis against Walker D. Hines, as Director General of Railroads operating the Louisville & Nashville for damages for the conversion of certain household goods. Judgment for defendant, and plaintiff appeals. Habit, actj or custom cannot control, and it is error to introduce it. 61 Ala. 247; 80 Ala. .51. There was a clear case of conversion. 35 Ala. 220 ; 202 Ala. 640,- 81 South. 582.

<p>Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.</p> <p>Henry Jones was tried and convicted on a charge of having in his possession prohibited liquors, as defined by the prohibition laws of the state, and from his conviction he appeals.</p> <p>The Legislature could not make it an offense for the defendant to have in his possession after a given date that which it was lawful for him to have prior to that date; in fact, Acts 1909, p. 1, did not repeal in this respect the Act of 1915, and, if it did, it was violative of the Bill of Rights. 164 Ala. 599, 51 South. 246, 26 L. R. A. (N. S.) 394; 133 Ky. 50, 117 S. W. 383, 19 Ann. Cas. 159, 24 L. R. A. (N. S.) 172; 163 Ky. 227, 173 S. W. 340, L. R. A. 1915D, 172; 134 La. 352, 64 South. 137, Ann. Cas. 1916A, 283; 2 Old. Cr. 268, 101 Pac. 288; 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847; 109 Ga. 373, 34 S. E. 590, 47 L. R. A. 366, 77 Am. St. Rep. 384; 61 111. 242 ; 27 Vt. 328: 6 Ind. 501; 71 Kan. 356, 80 Pac. 589, 6 Ann. Cas. 132.</p>

<p>Appeal from Circuit Court, Limestone County; Robt. C. Brickell, Judge. •</p> <p>John William Townley was convicted of a violation of the prohibition law, and he appeals.</p>

<p>Appeal from Circuit Court, Cullman County; O. Kyle, Judge.</p> <p>Alfred Gay, alias, etc., was indicted and convicted of manufacturing liquor contrary to law. From the judgment, he appeals.</p> <p>The witness was not qualified to state that whisky was made from the beer and stuff found at the still. 35 Ala. 176; 119 Ala. 555, 25 South. 251, 72 Am. St. Rep. 943; 150 Ala. 167, 43 South. 747; 160 Ala. 422, 49 South. 771. The confession was not admissible. 84 Ala. 426, 4 South. 383. The defendant was entitled to the affirmative charge. 14 Ala. App. 11, 70 South. 949.</p>

<p>Appeal from Circuit Court, Madison County ; Robert C. Brickell, Judge.</p> <p>Action by the McAnnelly Hardware Company against T. L. Mastín. From a judgment for plaintiff, defendant appeals.</p>

W. Haralson, Judge. John Jones was convicted of murder in the second degree, and he appeals.

<p>1. Indictment and Information <&wkey;50 — Information Need not Conclude Against the Peace, etc.</p> <p>An information need not conclude against the peace and dignity of the state, that being necessary only in case of indictment.</p> <p>2. .Statutes &wkey;> 97(2) — Statute Allowing 'Counties to make Road Regulations not Special.</p> <p>Act Sept. 22, 1915 (Acts 1915, p. 576) § 13, authorizing the court of county commissioners to establish, promulgate, and enforce rules and regulations with reference to the public roads, is not a local or special law, violative of Const. 1901, § 106; the act applying to all counties alike.</p> <p>3. Constitutional Law i&wkey;63(3) — Statute not Unlaweul Delegation of Legislative Power.</p> <p>Act Sept. 22, 1915 (Acts 1915, p. 576) § 13, authorizing the court of county commissioners to promulgate and establish road regulations, is not invalid as an unlawful delegation of legislative power, section 2 fixing a penalty for violation of the regulations so established; the Legislature having power to delegate the authority to fix such regulation and the statute itself fixing the penalty for violation.</p> <p>4. Criminal Law &wkey;?1044 — Admission of Evidence cannot be Reviewed, where THERE WAS NO MOTION TO EXCLUDE.</p> <p>Where objection t'o a question was waived by defendant, anS no motion was made to exclude the answer, the question of the admissibility of the evidence will not be reviewed.</p> <p>5. Criminal Law &wkey;>429(l) — In Prosecution for Hauling on County Road without License, Minutes of Commissioners’ Court Admissible.</p> <p>In a prosecution under Act Sept. 22, 1915 (Acts 1915, p. 574) § 2, for hauling on a county road without a license required by the court of county commissioners pursuant to section 13, the minutes of the court relating thereto are admissible.</p> <p>(&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

J. Curtis, Judge. Action by L. T. Crayton against the Stith Coal Company for damages for personal injuries suffered while in its employment as a miner. Judgment for the plaintiff, and the defendant appeals.

C. B. Giwinn, Judge. Action by John Ashworth against the Birmingham Railway, Light & Power Company and another, stricken as a party defendant by amendment, for damages for obstructing a street. Judgment for the plaintiff, and the defendant appeals. The facts sufficiently appear from the opinion of the court and the report of the certiorari decision of the Supreme Court in Ex parte John Ashworth, In re Birmingham Ry. L. & P. Cq. v. Ashworth, 204 Ala. 391, 86 South. 84.

' Appeal from Circuit Court, Covihgtoh County; A. B. Foster, Judge. Charlie Lundy was convicted of murder, and he appeals. While a physician may testify as an expert, this has no application to articles of clothing, and Dr. Young’s testimony as to the shoes were but' conclusions or opinions. 7 South. 149; 97 Ala. 37, 12 South. 164, 37 Am. St. Rep. 145; 118 Ala. 79, 23 South. 777; 136 Ala. 475, 34 South. 970.

E. Gamble, Judge. Sim Andrews was convicted of manslaughter, and he appeals.

Bessie Felder was convicted of larceny, and she appeals. The confession was not voluntary, and should not have been admitted. 39 Ala- 359; 63 Ala. 1; 59 Ala. 37; 179 Ala. 27, 60 South. 908. Under Acts 1915 p. 588, § 14, no act or confession of a child is evidence against it, nor is its silence, when questioned or accused, evidence against it.

<p>Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson, Judge. . Action by the State of Alabama against Jefferson County and the City of Birmingham to recover certain portions of the automobile license tax. Judgment for defendants, and the State appeals.</p> <p>The contention of the state is that the state should bear its proportionate part only of the burden of collecting these licenses, and that the counties and cities should bear their proportional part. Attention is directed to the section as it appears in Acts 1911, p. 170, and in Acts 1915, p. 493, in the light of the following authorities: 188 Ala. 166, 66 South. 47; 186 Ala. 192, 65 South. 177, Ann. Cas. 1916E, 99; 185 Ala. 512, 64 South. 549; 163 Ala. 174, 50 South. 390; 183 Ala. 554, 63 South. 76; 185 Ala. 439, 64 South. 57; 59 Ala. 195; 37 Pac.. 781.</p> <p>In the use of the words “gross” and “remainder” the Legislature intended that the taxing power should bear the burden of collecting it, and that the city and county should receive their portion of the gross, without any deduction. 191 111. 410, 61 N. E. 94; 80 Md. 483, 31 Atl. 439, 27 L. R. A. 648; 5 Mise. Rep. 8, 24 N. Y. Supp. 769. The case of Shaver v. Robinson, 59 Ala. 195, is without application to the incident case.</p>

<p>Appeal and Error c&wkey;H26 — Delay of more than Year to- Perfect Appeal Authorized Motion to Affirm on Certificate.</p> <p>Where appeal was taken on April 17, 1919, and filed in Court of Appeals on May 13, 1919, and nothing further was done to perfect appeal, motion made in June, 1920, to affirm on certificate will be granted; full compliance with Supreme Court rule 32 (Code 1907, p. 1514) being shown.</p>

Kyle, Judge. Henry Shoemake, alias, was convicted of manufacturing prohibited liquors, and he appeals. The demurrers and the pleas raise the same question that section 15 of the Weakley Bone Dry Act is unconstitutional and void, because its contents are not expressed in the title.

C. Brickell, Judge. Assumpsit by R. N. Grayson against J. S. Brown. Judgment for plaintiff, and defendant appeals. The action was for merchandise- sold by the plaintiff to the defendant, but alleged by the defendant not to have been purchased by him, or by any one authorized to act for him.

S. Williams, Judge. Burrell Howard was convicted of manufacturing prohibited liquors, and he appeals. The defendant was entitled to the affirmative charge under the evidence. 7 Ala. App. 144, 62 South. 270; 167 Ala. 85, 52 South. 417, 28 L. R. A. (N. S.) 536. The indictment charged no offense, or was so indefinite as to time, etc., that it cannot'support a conviction.

D. Merrill, Judge. J. L. Isbell was convicted for using the public roads by driving a two-horse wagon or dray thereover without having procured license therefor, and he appealed.

<p>Appeal and Error <&wkey;987(l) — Conclusions oe Court Given Eeeeot of Yerdict Notwithstanding Statute.</p> <p>The conclusion of a court sitting without a jury, if based on the oral testimony of witnesses, must on appeal be given the force and effect of a verdict of a jury, and, unless plainly wrong, cannot be disturbed, notwithstanding that the statute requires the appellate court to review the conclusions and judgments of the trial court without any presumptions in favor of the court below on the evidence.</p> <p><§z=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

C. B. Gwin, Judge. Action by Walter McDougal against the Louisville & Nashville Railroad Company for ,the negligent killing of an ox. From a judgment for defendant, plaintiff appeals. The case of Vaughn v. State, ante, p. 35, .81 South. 417, is without application, for neither the trial court nor any other court can judicially know that as a matter of fact the Louisville & Nashville Railroad Company did not operate the train over this railroad that killed plaintiff’s animal.

<p>Appeal from Circuit Court, Chilton County ; Leon McCord, Judge.</p> <p>Albert Gore was convicted of assault with intent to murder, and he appeals.</p> <p>The indictment should have been quashed on the plea in abatement, in the absence of a proper solicitor. Section 7787, Code 1907. 78 Ala. 448. The sentence was improper. 55 Ala. 86; 103 Ala. 95, 15 South. 506; ante, p. 49, 81 South. 449.</p>

Loyd Tate, Judge. Will Montgomery was convicted of murder-in the second degree, and he appeals. ’ Under section 6252 and Acts 1915, p. 815, the oral charge of the court, as well as the charges refused to the defendant, are not required to be shown by bill of exceptions, but become a part of the record.

P. Almon, Judge. George McKinney was indicted upon a charge of murder in the second degree, and on his trial was convicted of manslaughter in the second degree, and, from the judgment, he appeals.

• Action by O. D. Griffith against the Boss Livery Company for damage for injury to goods in transit. There was judgment for the plaintiff, and the defendant made a motion for a new trial, which was overruled, and it appeals. On application for rehearing, attorneys for the appellant state the reason above given for their failure to file a brief, and then proceed to brief the case on its merits; but it is not deemed necessary to here set it out.

<p>Appeal from Circuit Court, Jefferson County ; H. P. Heflin, Judge.</p> <p>Aline Clisby was convicted of buying, receiving, or .concealing stolen goods, and she appeals.</p>

<p>Bailment <&wkey;21 — Lender of Automobile not Liable foe Negligent Use bt Borrower.</p> <p>The mere lender of an automobile is not liable to one who is injured by its negligent use in the hands of the borrower, even under Acts 1911, p. 643, § 23.</p> <p>Brieken, P. J., dissenting.</p> <p><§ss>For other cases see same topic and KEJY-NUMBER in all Key-Numbered Digests and Indexes</p>

Dennis Cobb was convicted of burglary and grand larceny and he appeals. The defendant was 15 years old, and was committed to jail under a mittimus from the juvenile court, and held to await the action of the grand jury. A grand jury met, investigated many charges, and adjourned without returning an indictment against the defendant.

Habeas Corpus by Nicholas C. Phelps against Mrs. James McLeod for the custody of two boys, children of petitioner. Prom a decree denying the writ, petitioner appeals.

<p>Appeal from Circuit Court, Jefferson County ; J. C. B. Gwin, Judge.</p> <p>Action by Leo Jones and others (names not given) against the American Tar Products Company for damages for the pollution of water in a stream, for creating a nuisance, and for diminishing the water in volume. Judgment for plaintiffs, and defendant appeals.</p> <p>The following charges were refused to the defendant:</p> <p>Assignment 1: If after considering the evidence in this case you find that plaintiffs’ land was damaged by the pollution of Valley creek, and that defendant contributed thereto with others, and you further so find that you are unable to ascertain the amount or portion of said damages this defendant caused, then you can only award these plaintiffs nominal damages.</p> <p>Assignment 2: You cannot award plaintiffs any damages in this case as for any noxious or disagreeable smells arising from Valley creek during the time involved in this case.</p> <p>Assignment 3: Yon cannot award plaintiffs any damages as for any inconvenience or annoyance suffered by the plaintiffs.</p> <p>Assignment 4: If you find from the evidence that the plants of the defendant did contribute to the pollution of Valley creek, and that such plants were modern up-to-date plants and were properly operated, and that no more was done towards the pollution of said creek by the defendant than was reasonably necessary under all the circumstances, your verdict must be for defendant.</p> <p>Assignment 5: If you find from the evidence in this case that the use to which the defendant put Valley creek was reasonable, when considered in connection with the fact that the district and vicinity where the alleged wrongs were perpetrated was and is a thickly populated district, in which there are large and extensive manufacturing enterprises, then your verdict must be for the defendant, and this is true even though you may find from the evidence that defendant has contributed to the pollution of Valley creek to the extent that its waters have become unfit for domestic and animal use and the odors from it have become offensive.</p> <p>Assignment 6: If you find from the evidence that, the defendant contributed to the pollution of Valley creek only to such an extent as was reasonably necessary under all the circumstances, then I charge you that you must find for the defendant.</p> <p>Assignment 8: In a thickly populated manufacturing district manufacturing industries have the right to pollute the waters of running streams so as to render them unfit for domestic use or animal consumption, if to do so is reasonably necessary under all the circumstances.</p> <p>Assignment 9: It is immaterial that the waters of Valley creek are polluted and offensive, if you find from all the evidence in this case that the defendant’s use of the waters of Valley creek and its tributaries was, under all the circumstances, a reasonable use thereof.</p> <p>Assignment 13: The reasonable use to which a stream of running water may be devoted in a thickly populated manufacturing district is different from the reasonable use of a like or similar stream in a rural or thinly populated section, where there are no manufacturing industries.</p> <p>Assignment 7: The rights of persons to the waters of running streams is not the same under all circumstances and conditions; for instance, persons living along a running streapi in thinly populated agricultural districts have a right to have the water of such stream maintained in clearer and purer state than those who live along a running stream of like kind in a thickly populated manufacturing district.</p> <p>Assignment 10: If you find from the evidence that the plaintiffs had suffered all,the damages that they have suffered in 1916, and that they have recovered therefor in previous suits, then they cannot recover in this case, and your verdict must be for the defendant.</p> <p>Assignment 11: If you find from the evidence that plaintiffs’ property was damaged to the extent of $150 by the pollution of Valley creek during the 11 months next preceding the filing of this suit, and you further find from the evidence that this defendant contributed to said pollution only 10 per cent, thereof, then you cannot lawfully render a verdict awarding plaintiff more than $15.</p> <p>Assignment 12: If you are reasonably satisfied from the evidence that plaintiffs were injured as a proximate result of the acts of this defendant complained of, but your minds are left in such a state of doubt and confusion that you cannot tell how much this defendant ought to contribute to the plaintiffs’ damage, then you cannot find for the defendant.</p> <p>Assignment 14: If you believe from the evidence that the water turned into Possum creek by this defendant during the period alleged was not in a more polluted condition than when taken out of Possum creek for the use of this defendant, plaintiffs , cannot recover.</p> <p>Assignment 15: If the American Tar Prod-nets Company takes the water from Possum creek and uses it and turns it back into the same creek "without adding to the pollution, then you must find for the defendant.</p> <p>Assignment 16: If you believe from the evidence in this case that the water discharged by the defendant from its plant into Possum creek is in the same condition as to pollution as when withdrawn from Possum creek for the defendant’s use, then you should find for the defendant.</p> <p>Assignment 17: If you believe from the testimony in this case that the reasonable rental value of plaintiffs’ farm for the year immediately preceding July, 1917, was $60 and that the reasonable rental value for the year following July, 1917, was $50, then the measure of damages which plaintiffs are entitled to recover is the proportionate part between $60 and $50 which this defendant caused by the pollution it added to Valley creek.</p> <p>The charge set out in assignment 1 should have been given. 183 Ala. 265, 62 South. 815: 179 Ala 136, 59 South. 592; 203 Ala. 66, 82 South. 27; 12G Ala. 95, 27 South. 7G0; 87 Ala. 277, 6 South. 291; 93 Ala. 514, 9 South. 722, 30 Am. St. Rep. 65; 104 Ala. 451, 16 South. 443. The charge made the basis of assignment 2 should have been given. 182 Ala. 633, 62 South. 40; 2 Ala. App. 652, 56 South. 830. Charge 3 should have been given. Authorities supra. On these authorities, the other charges requested should have been given. See, also, 202 Ala. 381, 80 South. 464; 29 Cyc. 156; 21 A. & E. Ency. L. 690. The charges referring to ratable pollution of the stream should have been given. Authorities supra. The charge as to the measure of damages, charge 17, should have been given. 139 Ala. 376, 35 vSouth. 996; 158 Ala. 630, 48 South. 48; 58 Ala. 654. The court erred in not requiring plaintiffs to elect whether they would prosecute their suit to enjoin the nuisance or proceed with their damage suit. 59 Ala. 192; ' 5 Ala. 770'; 7 Ala. 926; 1 Ala. 708; rule 112, p. 1564, Code 1907. The exceptions to evidence were proper. 169 Ala. 213, 53 South. 320, 32 D. R. A. (N. S.) 889; 42 Ala. 480; 13 Cyc. 208; Jones on Evidence, § 363. Counsel discuss other assignments of error, based on the authority above cited.</p> <p>The fact that the plant was up-to-date does not excuse the pollution. Sections 5193 and 519S, Code 1907. The case of Stein v. Burden, 29 Ala. 127, settles the law against the contention of plaintiff in his requested charges. See, also, 12 Ala. App. 431, 68 South. 565. These also answer his proposition 10. The duty in thickly populated districts is no different from the duty in thinly populated districts. 100 Ala. 252, 14 South. 167, ■ 46 Am. St. Rep. 48 ;■ 84 Wash. 47, 146 Pac. 163, D. R. A. 1915D, 911; 28 Vt. 459, 67 Am. Dec. 723; 1 N. D. 309, 47 N. W. 390, 10 D. R. A. 167. Counsel discusses other assignments of error, but without further ci-' tation of authority.</p>

<p>Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.</p> <p>John Frazier was convicted of manufacturing prohibited liquors, and he appeals.</p> <p>The following are the charges refused to the defendant:</p> <p>“(1) If you are in doubt of any material element of the offense, the offense having been sufficiently proven, you must acquit the defendant.”</p> <p>(C) Affirmative charge to find the defendant not guilty.</p> <p>The judgment was void, first, because the sentence was .not definite; and, second, it was not based on the verdict of the jury. 69 Ala. 320; 120 Ala. 293, 25 South. 6; 123 Ala. 48, 26 South. 512; 151 Ala. 10, 44 South. 46. The state had clearly elected to try for one offense, and therefore the sheriff’s evidence was not admissible. 96 Ala. 60, 11 South. 435; 148 Ala. 628, 42 South. .813; 152 Ala. 89, 44 South. 537. Counsel discuss other assignments, but without further citation of authority.</p> <p>The sentence was erroneous, and should be reversed for proper sentence. Section 7620, Code 1907. The provisions of Acts 1919, p. 148, are without application 'to this class of cases. Ante, p. 175, 83 South. 359.. There was no error in admitting the sheriff’s testimony. 11 Ala. App. 299, 66 South. 896; 8 Ala. App. 391, 62 South. 342. The charge given for the state was correct. 82 Ala. 38, 2 South. 451; 8 Ala. App. 164, 62 South. 1027. There is no merit in the other assignments of error.</p>

<p>1. Lewdness <&wkey;10 — Positive Evidence of Sexual Intercourse not Necessary.</p> <p>It is not necessary, to a conviction of living together in a state of adultery or fornication, to prove by positive evidence that the parties ever had sexual intercourse, as such fact may be shown by circumstances.</p> <p>2. Criminal Law <&wkey;369(10) — Evidence of Other Illicit Relations Admissible in Prosecution for Living in Adultery.</p> <p>Facts and circumstances, which tend to show illicit relations between the parties anterior and subsequent to the period of time relied upon for a conviction for living in a state of adultery or fornication, are admissible in evidence.</p> <p>other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

W. Ferguson, Judge. Action by Mary J. Cain against the City of Birmingham for damages for injuries sustained because of a defective sidewalk. There was judgment for plaintiff in the sum of $325, and on motion of the plaintiff this judgment was set aside for inadequacy, and defendant appeals. The grounds of the motion were: (1) Inadequacy of the verdict.

<p>Appeal from Circuit Court, Calhoun County ; I-Iugh D. Merrill, Judge.</p> <p>Jesse Beecliam was convicted of distilling prohibited liquors, and he appeals.</p>

E. Gamble, Judge. Alice James was convicted of murder, and she appeals. The facts sufficiently appear from the opinion of the court. Counsel discuss the assignments of error, but without citation of authority.

B. Poster, Judge. Lawrence Dumas was 'convicted of operating a cotton mill without a license, and he appeals. The statute makes no reference to hosiery mills, and the defendant should have been permitted to prove that he was operating a hosiery rather than a cotton mill. 86 Ala. 196, 5 South. 468; 6 Ala. App. 629, 60 South. 949 ; 5 Ala. App. 171, 59 South. 318; 22 Ala. 69; 25 R. C. L. 1047 and 1064 ; 203 Ala. 128, S2 South. 158; 163 Ala. 460, 50 South. 140.

<p>Larceny <&wkey;3(l) — Taking must be" with Felonious Intent.</p> <p>In order to convict of larceny, the taking must be shown to have been with felonious intent.</p>

Boyd. Tate, Judge. Andrew Mills was convicted of manufacturing prohibited liquors, and he appeals.

<p>Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.</p> <p>Charles MeGlon was convicted of an offense, and he appeals.</p>

<p>Appeal from Circuit Coul't, Colbert County; O. P. Almon, Judge.</p> <p>A. C. Tyler was indicted and convicted of the offense of buying, receiving, or concealing stolen property, and from the judgment he appeals.</p> <p>The evidence is not sufficient to sustain the verdict, and the court should have granted defendant a new trial. 34 Cyc. 515; 150-Ala. 101, 43 South. 204; 174 Ala. 71, 57 South. 245. On these authorities the court erred in refusing the defendant permission to explain his possession. 107 Ala. 85, 52 South. 417.</p>

Goldsby, Judge. William Schroeder was convicted of violating the prohibition law, and appeals.

E. Gamble, Judge. Andrew Leatherwood was convicted of violating the prohibition law, and he appeals. The court erred in refusing the charge set out in assignment 6. 107 Ala. 26, 18 South. 23S'. Counsel discuss other assignments of error, but in view of the opinion they are not here set out. The charge referred to involved the same principle as the charges given, and hence the refusal was' not error.

<p>Appeal from Circuit Court, Morgan County; O. Kyle, Judge.</p> <p>Carl Deemer and Jim Gilbert were convicted of an assault with intent to rob, and they appeal.</p>

<p>1. Criminal Law <&wkey;747 — Conflicting Evidence for Jury.</p> <p>Where the evidence was in sharp conflict, the question of defendant’s guilt was a question of fact for the jury.</p> <p>2. Criminal Law <&wkey;82!)(l) — Requested Charges Substantially Covered Properly Refused.</p> <p>Refusal of requested charges covered substantially by the given charges and by the oral charge of the court was not error.</p> <p><&soFor oilier cases see same topic and KEYrNUMBER in all Key-Numbered Digests and Indexes</p>

C. Brickell, Judge. Caffe Perdue wa's convicted of assault with intent to rob, and he appeals. Reversed and remanded. The grounds for new trial were: First, that the evidence was all circumstantial; and, second, third, and fourth, that the verdict was contrary to the law and evidence; and fifth, that the argument of the solicitor (which appears in the opinion) was highly improper and prejudicial. The defendant’s motion for a new trial should have been granted. 16 Ala.

<p>Appeal from Circuit Court, Jefferson County; H. A. Sharpe, Judge.</p> <p>Assumpsit by D. F. Allen against Mrs. George Ella Stradford, as administratrix of the estate of M. T. Stradford. Judgment for defendant, and plaintiff appeals.</p> <p>The facts sufficiently appear from the opinion of the court and from the former report of this case in 201 Ala. 559, 78 South. 955.</p> <p>If anything, the case made on this appeal is stronger than the case on. former appeal, and plaintiff was entitled to the affirmative charge. 201 Ala. 559, 78 South. 955. See, also, 9 C. J. 591, 598, 599, 623-625, and cases cited.</p>

<p>1. Criminal Law <&wkey;69o(2) — General Ob- . jections Insufficient, Unless Testimony Inadmissible for any Purpose.</p> <p>The -admission of testimony over general objections is not error, unless the testimony is plainly inadmissible for any purpose.</p> <p>2. Witnesses <&wkey;219(3) — Defendant’s Conversation with Attorneys not Privileged after Disclosure of Seoreoy by Defendant.</p> <p>Testimony as to what defendant had told •witness concerning' defendant’s conversation with his attorneys held not objectionable as testimony as to a privileged conversation, since defendant, having disclosed its secrecy, could not claim the privilege that he had had before disclosure.</p> <p>3. Criminal Law <&wkey;419, 420(10), 1169(12)— Evidence as to why Defendant did not Surrender Himself as ■ Intended held Harmless.</p> <p>In homicide prosecution, involving self-defense issue, where there was testimony that defendant had gone to town planning to give himself up to the sheriff, but that he had not in fact surrendered himself, admission of testimony that defendant had told witness that on reaching town .he had talked to some lawyers who had hold him not to give himself up, was hearsay, but harmless; such evidence tending to explain his failure to surrender himself to the sheriff.</p> <p>4. Witnesses <&wkey;287(4) — Redirect Examination held Proper in View of Cross-Examination.</p> <p>In murder prosecution involving self-defense issue, where defendant, on cross-examination of state’s witness, elicited that witness had heard people talk of deceased as a bad fighting, dangerous man, it was competent for the state to prove, on redirect examination, that witness had never heard of deceased fighting with anything but his fist.</p> <p>5. Homicide <&wkey;268 — Whether Certain Testimony had Reference to Defendant held for Jury.</p> <p>In murder prosecution, where witness, having been asked whether he had seen defendant or his brothers going in the direction of the place where body had been found, answered that he had seen “the Holland [defendant’s family-name] boys” going in that direction, the question of whether the defendant was one of the Holland boys referred to was for the jury.</p> <p>6. Homicide <&wkey;170 — Testimony as to Direction of Wagon Tracks held Competent.</p> <p>In murder prosecution, where witness had testified to seeing wagon in which defendant was riding 'going toward place where deceased’s body was discovered on day of killing, it was competent for witness to further testify as to the direction the wagon tracks wer.e going.</p> <p>7. Homicide <&wkey; 192 — Testimony as to Defendant’s Utterance Amounting to Threat held Admissible when Self-Defense Claimed.</p> <p>In murder prosecution involving self-defense issue, testimony that defendant, on certain occasion shortly before the killing, had had possession of a pistol, and had stated that deceased had accused him of theft, that he had been run over until he had got tired of it,’and that, “I guess I am already in. trouble; I have got to where I don’t give a G-d d-n” — held admissible; the utterance being susceptible of interpretation as a threat against deceased.</p> <p>8. Criminal Law <&wkey;1044 — Objection .to Question Presumed Waived by Failure to Move for Exclusion of Answer.</p> <p>Where no motion was made to exclude answer to question propounded to witness, it will be presumed on appeal that the objection to the question was waived.</p> <p>other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.</p> <p>Memory McMullen was convicted of manufacturing prohibited liquors, and he appeals.</p> <p>Counsel discuss errors insisted upon, relative to the admission and exclusion of evidence, but do not brief the subject discussed in the opinion.</p> <p>Counsel for the state admit the invalidity of the indictment, but suggest that the cause be reversed, and the defendant held until discharged by due process of law.</p>

W. Haralson, Judge. Jeff Weaver was convicted of manufacturing prohibited liquors, and he appeals. The defendant was entitled to the affirmative charge in this ease. 63 Ala. 234 ; 99 Ala. 145, 13 South. 566; 115 Ala. 42, 22 South. 551; 160 Ala. 290, 49 South. 362. Counsel discuss exceptions to evidence, but cite no authorities, except to the proposition that the defendant was entitled to know the sheriff’s pecuniary interest in a conviction.

C. Brickell, Judge. Spencer Taylor was convicted of assault with a weapon, and he appeals. The court erred in its application of the doctrine of self-defense and freedom from fault to this case. 186 Ala. 56, 64 South. 609; 11 Ala. App. 125, 65 South. 860; 75 South. 641; 160 Ala. 96, 49 South. 679; 122 Iowa, 88, 97 N. W. 979, 64 L. R. A. 77.

<p>Appeal from Circuit Court, Monroe County ; Beu D. Turner, Judge.</p> <p>Action by M. D. McMillan against Walker D. Hines, as Director General, operating the Louisville & Nashville Railroad Company, for damages for killing a mule. Judgment for plaintiff, and defendant appeals. Reversed and remanded in conformity with mandate of Supreme Court, 8T South. 691.</p> <p>The action was for damages for killing a mule. The second plea is that the mule was killed by defendant’s train upon a portion of •defendant’s railroad within a fence erected by defendant in conformity to a notice of the Public Service Commission of Alabama. As a special replication to said plea plaintiff replied and said that the cattle guard at the place where said mule was killed was defective and not so constructed as not to prevent said mule going over the same and within the inclosure of defendant’s right of way. And plaintiff avers that on account ■ of the said defective condition of said cattle guard said mule went over or across the same within the inclosed right of way of defendant. The demurrers interposed to the special replication were:</p> <p>(1) It does not allege that the cattle guard in question was a part of the inclosure ordered to be fenced by the Alabama Public Service Commission.</p> <p>(2) It does not allege that the said cattle guard referred to was not a standard cattle guard, such as are constructed and used by well-regulated railroads.</p> <p>(3) It does not allege that the cattle guard referred .to was insufficient to prevent stock generally from passing over it.</p> <p>(4) The allegation is confined to the particular mule in question.</p> <p>The Court of Appeals should have stricken assignment No. 9. Section 5364, Code 1907; Gen. Acts 1915, p. 815 ;■ 201 Ala. 493, 78 South. 399. The court erred in holding that the trial court properly overruled demurrer to special replication to plea 2. 98 Ala. 409, 12 South. 918; 109 Ala. 196, 19 South. 522; 148 Ala. 27, 41 South. 461; 200 Ala. 530, 76 South. 856; 16 Ala. App. 347, 77 South. 941.</p> <p>The court cannot consider section 5654, Code 1907, without undertaking to review the ruling of the trial court on the demurrers to plea 2, which are not assigned as error in the record. 54 Ala. 589; 120 Ala. 535, 24 South. 955; 172 Ala. 655, 55 South. 293; 184 Ala. 103, 63 South. 1022.</p> <p>Section 5654, Code 3907, is unconstitutional. 58 Ala. 594; 100 Ala. 662, 13 South. 602, 27 L. R. A. 263, 46 Am. St. Rep. 92. A bad replication is good enough for a bad plea. 32 Ala. 506; 162 Ala. 424, 50 South. 368; 148 Ala. 17, 41 South. 769.</p>

<p>1. Indictment and- Information <&wkey;184 — Charging Defendant _ by Initials of Christian Name Insufficient, where Name in Fact Known to Grand Jury.</p> <p>Where, in a prosecution for embezzlement, the indictment designated defendant by the initial letters of Ms Christian name, which was followed by the allegation, “whose Christian name is to, the grand jury unknown,” and there was uncontradicted evidence that the grand jury did know the Christian name of defendant, the indictment is insufficient to sustain a conviction.</p> <p>2. Embezzlement <&wkey;38 — Report of Examiner of Public Accounts held Admissible Only so far as Pertaining to Issues.</p> <p>In a prosecution of a circuit court clerk for embezzlement, where a report of the examiner of public accounts made prima facie evidence of what it charged, by Code 1907, § 547, as amended by Acts 1911, pp. 492, 493, but containing irrelevant matters was sought to be introduced, such report was improperly admitted ; it not being limited to matters germane to the issues.</p> <p>3. Witnesses <&wkey;271(l) — Defendant may Cross-Examine as to Report of Examiner of Public Accounts Allowed in Evidence.</p> <p>In a prosecution of a circuit court clerk for embezzlement, wherein it was sought to introduce a report of the examiner of pnblic accounts made prima facie evidence, by Code 1907, § 547, as amended by Acts 1911, pp. 492, 493, defendant had a right to cross-examine as to matters contained in the report and allowed in evidence.</p> <p>4. Embezzlement <&wkey;26 — Indictment held Sufficient.</p> <p>In a prosecution of a circuit court clerk for embezzlement, a . count of the indictment held sufficient as against demurrer.</p> <p><§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Covington County; A. B. Foster, Judge.</p> <p>Will Bush was indicted and convicted on a charge of violating the prohibition law. From the judgment, he appeals.</p> <p>Charge 5 should have been given. 11 Ala. App. 205, 65 South. 847; 16 Ala. App. 399, 78 South. 315; 16 Ala. App. 138, 75 South. 814; 67 South. 800. Under the rule laid down in Pickens v. State, 115 Ala. 42, 22 South. 551, the case was not made out.</p>

A. Pearce, Judge. Fannie Turner was convicted of manslaughter, and she appeals. The following charges were refused to the defendant: (3) The court charges the jury that if they are not convinced beyond a reasonable doubt that the defendant is guilty as charged, then they cannot so convict the defendant.

C, Bricked., Judge. Arthur Weeden was convicted of larceny, and he appeals. The court erred in not permitting the defendant to show his good character for honesty. 14 Ala. App. 46, 70 South. 991; . 18 Ala. 720; 40 Ala. 698;. 63 Ala. 173; 74 Ala. 1; 88 Ala. 223, 6 South. 761; 89 Ala. 121, 8-South. 98, 18 Am. St. Bep. 96; 142 Ala. 14, 39 South. 329.

<p>1. Intoxicating Liquors @=>233(2) — That Defendant’s Eatheb-In-Law had a Still held Admissible.</p> <p>In a prosecution for violating the prohibition law, it having been shown defendant had in his possession beer from which whisky is usually made, evidence that defendant’s father-in-law, who lived only 150 feet away, had a still and beer similar to that found in defendant's possession, as well as that there was a path leading between the places, was competent to connect defendant with the manufacture of prohibited liquors.</p> <p>2. Criminal Law @=>1206(4) — Provision of Code giving Judge Discretion as to Sentence does not Extend to Offenses Thereafter Created by Statute.</p> <p>Code 1907, § 7620, providing that, in all convictions for felonies in which imprisonment or hard labor is for more than one year and not more than two, the judge, in passing the sentence, is invested with the discretion to sentence the party to the penitentiary or county jail, etc., modifies every other section of the Code to which it relates, but it does not extend to statutes creating felonies and establishing punishments enacted since the passage of the Code, and, in case of repugnancy between it and such later statutes, the later govern.</p> <p>3. Criminal Law @=>1208(9) — Indeterminate Sentence Law Applies to Sentence for Violating Prohibition Law.</p> <p>In a prosecution under Act Jan. 25, 1919 (Acts 1919, p.. 16) § 15, making the manufacture or distillation of whisky a felony and fixing the punishment at imprisonment in the penitentiary for not less than one or more than five years, the sentence should conform to Indeterminate Sentence Act, § 2, providing that, in all cases in which the punishment is imprisonment in the penitentiary and a minimum and maximum term is prescribed, the court shall pronounce an indeterminate sentence, etc.</p> <p>@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

E. Gamble, Judge. Sam Joseph was convicted of the larceny of a heifer, and he appeals. The facts seem to be that Dick Earl was left in the possession of the heifer by Ed Cole, and that the heifer was lost, and was found in the possession of one Phillips, who testified that the defendant traded him the heifer for a steer.

W. Haralson, Judge. Walter Has well was convicted of manslaughter in the first degree, and he appeals. The court’s oral charge, to which exception was reserved, is as follows: The court charges you that, no mere words, however insulting or abusive, would reduce a killing, otherwise unlawful, when it would otherwise be murder, to manslaughter. The venue was not shown. 153 Ala. 31, 45 South. -640; 148 Ala. 608, 42 South. 999.

Grayson, Judge. Artemis Vaealis was convicted of receiving stolen property, and lie appeals. The communication was not privileged. 29 Ala. 254 ; 67 Ala. 164; 86 Ala. 69, 5 South. 674; 124 Ala. 268, 27 South. 420. The interest of a witness, which might bias his testimony, may always be shown by the party against whom lie testified. 39 South. 580; 171 Ala. 19, 55 South. 159. The court erred in its oral charges, marked A and B. 8 Ala.

T. Lowe, Judge. Lee McCrosky was convicted of violating the prohibition law, and he appeals. The pleas of former jeopardy were sufficient, and were proven, and hence the defendant was entitled to an acquittal. 9 Tex. App. 338; 3 Mote. (Mass.) 828, 37 Am. Dec. 139; 8 R. C. L. 140, 141; 94 Cal. 304, 29 Pac. 642, 28 Am. St. Rep. 129; 86 Ala. 609, 6 South. 120, 11 Am. St. Rep, 79; 159 Ala. 6, 48 South. 813; 12 Ala. 840,'46 Am. Dec. 283.

<p>Habeas Corpus <@=80 — Withdrawal oar Original Return and Substitution op Substantially Similar One held not Abuse op Discretion.</p> <p>Where, on habeas corpus to be relieved from custody by the chief of police on a charge of embezzlement under a foreign indictment, it was not an abuse of discretion to allow respondent to withdraw his original return that be hold petitioner in custody under a requisition from the Governor, of the foreign state,, and to substitute a new and corrected return of substantially the same nature.</p> <p><@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Merrill, Judge. Charlie Mote was convicted of manufacturing prohibited liquor, and he appeals. The evidence did not disclose a making, and an attempt to make is not a violation under the law. 70 South. 949;' 82 South. 560; 115 Ala. 121, 22 South. 275. The cases 'relied on by the appellant have been expressly overruled.

<p>Appeal from Circuit Court, Lawrence County ; Robt. C. Brickell, Judge.</p> <p>Lum Terry was convicted of manslaughter in the first degree, and he appeals.</p> <p>The following is the charge given for the state:</p> <p>If you believe from the evidence in this case beyond a reasonable doubt that the defendant entered into the fight willingly, that resulted in the death of John Graham, then the defendant cannot invoke the doctrine of self-defense.</p> <p>The following charges were given for the defendant:</p> <p>(4) The court charges the jury that, if they are reasonably satisfied from the evidence in this case that at the time the defendant fired the fatal shot he was in imminent danger of losing his life or suffering grievous bodily harm at the hands of the deceased, or reasonably appeared to be in such danger and honestly fired the fatal shot under such belief, then your verdict should be for the defendant, unless you are satisfied beyond all reasonable doubt from the evidence in this case that the defendant entered the fight willingly, or was at fault in bringing, on or encouraging the difficulty; and I charge you as a matter of law that, if you are reasonably satisfied from the evidence that he was in danger as I have just defined, or reasonably appeared to be in such danger, then to fire the fatal shot in honest belief of such danger, with an intent and fixed purpose to kill, would not constitute entering the fight willingly, so as to cut off his right of self-defense, as I have defined the ingredients of self-defense to you; and I further charge you that if what he said or did at the time prior to'the fatal shooting was not wrongfully said or done with a view of bringing on or encouraging the difficulty, and, further, if said words, conduct, or deeds of whatever kind did not in fact bring on the difficulty, then such acts and conduct would not be such as to render him at fault in bringing on or encouraging the difficulty, in such manner as to cut off his right of self-defense, as I have defined the same to you.</p> <p>(5) Before words,- conduct, or deeds of the defendant can be said, within the meaning of the law, to encourage or provoke the difficulty, that must have been intentionally said or done by the defendant, and his words, conduct, or deeds must have brought on or encouraged the difficulty.</p> <p>(6) It is the law that defendant had a right to protect himself from real or reasonably apparent felonious assault upon himself by the deceased, and if, on considering the evidence or any part of it, when considered with the whole evidence, you have a reasonable doubt as to whether defendant was justified in taking •the life of deceased in defending himself from such assault, it will become your duty to acquit him.</p> <p>(44) It is not -necessary, under the evidence in this case, that’ defendant should have been in actual danger of death or great bodily harm at the time ho killed deceased, or that retreat would have really increased his peril, in order for him to have been justified in shooting the deceased. 1-Ie had the right to act on the appearance of things at the' time, taken in the light of all the evidence, and had the right to interpret the conduct of deceased in the light of any threat or threats that the evidence proves deceased to have made against the defendant. If the circumstances attending the killing were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and that he coúld not have retreated without adding to his peril, and he honestly believed such to be the case, then he had a.right to shoot deceased.in his own defense, although as a matter of fact he was not in actual danger and retreat would not have endangered his personal safety; and if the jury believe that the defendant acted under such conditions and circumstances as above set out, the burden of showing that he was not free from fault in bringing on the difficulty was on the state, and, if not shown, the jury should acquit the defendant.</p> <p>(45) If defendant shot deceased under a bona fide belief that he was in impending danger of life or limb, and he had, under all the circumstances, reasonable cause to believe that he was in imminent danger at the time the shooting was done, it would be immaterial whether there was such danger or not.</p> <p>(47) If you believe from the evidence in this case that the deceased made a sudden, felonious, murderous attack on the defendant, in such manner as to raise in the mind of a reasonable man the belief, and the defendant did believe, that he was in imminent danger of great bodily harm at the time he fired the fatal shot, then the defendant was under no obligation to retreat anfl was justified in taking the life of the deceased, provided he was without fault in bringing on the difficulty, and the burden of proof is on the state, in such a case, to show that the defendant was at fault in bringing on the difficulty.</p> <p>The following charges were refused to the defendant:</p> <p>(8) The court charges the jury if they are reasonably satisfied from the evidence in this case that the defendant was without fault in bringing on the difficulty, and at the time of the firing of the fatal shot the defendant honestly and' reasonably believed the deceased wás about to make a murderous attack upon him in such a manner as to immediately imperil his life, the defendant was under no duty to retreat, and was authorized, under the law, to stand his ground and repel such murderous attack by taking the life of the deceased, if it reasonably appeared and he honestly believed it to be necessary to preserve his own life or his body from grievous harm.</p> <p>(10) I charge you, gentlemen of the jury, that, in order to constitute putting the defendant at fault in bringing on or encouraging the-difficulty, his words, conduct, or deeds must-have been a contributing cause of the difficulty; it is not enough, as a matter of law, that such words, conduct, or deeds were calculated to. encourage or bring on the difficulty, but such words must have brought it on or encouraged it. If you have a reasonable doubt from the evidence in this case as to whether or not what Terry said‘or did to deceased, or his conduct towards him prior to the commencement of the difficulty, was the cause of the deceased assaulting, or attempting to assault, if you believe he did so assault or attempt to assault him, then I charge you that Terry’s words, acts, deeds, and manner towards the deceased prior-to the beginning of the difficulty would not put him at fault in bringing on the difficulty, within the meaning of the law.</p> <p>(15). I charge you, gentlemen of the jury, that, in order to constitute putting the defendant at fault in bringing on or encouraging the difficulty, Ms words, conduct, or deeds must have been a contributing cause of the difficulty; it is not enough, .as a- matter of law, that such words, conduct, or deeds were calculated to encourage or bring on the difficulty, but such words must have brought it on or encouraged it.</p> <p>(16) I charge you, gentlemen of the jury, that the burden is on the state in this case to satisfy you from the evidence beyond a reasonable doubt that -the defendant entered the fight willingly, or fought willingly, and if you have a reasonable doubt from the evidence in this ease on that point, then you cannot deny the defendant the benefit of his plea of self-defense, as I have defined that plea and doctrine to you in my oral charge.</p> <p>(17) If the defendant’s acts or words towards the deceased did not actually bring about the difficulty, he was under no duty to retreat. It is not necessary, under the evidence in this case, that the defendant should have been actually in danger of death or great bodily harm at the time he killed the deceased, in order for him to have been justified in shooting deceased. He had the right to act on the reasonable appearance of things at the time, taken in the light of all the evidence, and he had the right to interpret the conduct of the deceased in the light of any threats that the evidence proves deceased to have made against the defendant. If the circumstances attending the killing are such as to justify a reasonable man in the belief that he. was in danger of great bodily harm or death, and he honestly believed such to be the case, then he had a right to shoot the deceased in Ms own defense, although, as a matter of fact, he may have been in no actual danger; and if the jury believe that the defendant acted- under such conditions and circumstances as above set out, the burden of showing that he was not free from fault in bringing on the difficulty and that he entered the fight willingly is on the state. The court charges you that this burden is on the state to prove one or the other beyond a reasonable doubt, either that he was not free from fault in bringing on the' difficulty or that he entered the fight willingly, and if not so shown the jury must acquit.</p> <p>(18) The court charges the jury that if they are reasonably satisfied from the evidence in this case that at the time of the firing of the -fatal shot the defendant was in actual danger of losing his life or suffering- grievous bodily harm, or reasonably appeared to be in such imminent danger, and he honestly so believed and on such belief fired the fatal shot, then the jury should acquit him, unless they are satisfied from the evidence beyond all reasonable doubt that the defendant was at fault in provoking or bringing on the difficulty, or entered willingly therein; and the court charges the jury that before the defendant can be put at fault, within the meaning of the law, in bringing on the difficulty, he must either say some wrongful word or commit some wrongful deed which did actually provoke or encourage the difficulty, and such words or deeds must have been said or done by Mm at the time with a knowledge of the circumstances surrounding Mm, and that his words or conduct at that time would be likely to provoke a difficulty.</p> <p>(28) If the defendant’s acts or words towards the deceased did not actually bring about the difficulty, he was under no duty to retreat. It is not necessary, under the evidence in this case, that the defendant should have been actually in danger of death or great bodily harm at the time he killed the deceased, in order for him to have been justified in shooting the deceased. He had the right to act on the reasonable appearance of things at the time, taken in the light of all the evidence, and he had the right to interpret the conduct of the deceased in the light of any threats that the evidence proves deceased to have made against the defendant. If the circumstances attending the killing are such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and he honestly believed such to be the case, then he had a right to shoot the deceased in his own defense, although, as a matter of fact, he may have been in no actual danger.</p> <p>Refused charge 8 should have been given. 181 Ala. 28, 61 South. 259; 196 Ala. 590, 71 South. 706; 170 Ala. 29, 54 South. 119; 68 South. 334; 183 Ala. 88, 63 South. 73. Refused charge 8 is not covered by given charge 47. 16 Ala. App. 396, 78 South. 312. Refused charges 10, 15, and 18 should have been given. 75 South. 176; 183 Ala. 10, 62 South. 864; 177 Ala. 24, 59 South. 270.. Refused charges 17 and 28 should have been given. 5 Ala. App. 96, 59 South. 714, and authorities supra. Refused charge 16 should have been given. 178 Ala. 4, 59 South. 573. The court erred in giving the charge for the state.</p> <p>The bill of exceptions does not purport to contain all of the evidence, and a state of the evidence will be presumed to support the ruling of the trial court. 168 Ala. 285, 53 South. 279;- 200 Ala. 14, 75 South. 326. The exclusion of evidence is not harmful, where the evidence is afterwards admitted. 16 Ala. App. 542, 79 South. 678; 82 South. 503. Not purporting to set out all the evidence, the bill of exceptions does not properly present for review the refused .charges. Ante, p. 44, 81 South. 426; 128 Ala. 633, 29 South. 586; 132 Ala. 264, 31 South. 78. The refused charges were substantially covered by -the oral charge of the court and the charges given for the defendant.</p>

C. Brickell, Judge. Will Cain was convicted of manslaughter in the first degree, and he appeals.

J. Garrison, Judge. Motion by G. W. Weaver, as Judge of the County Court of Shelby County, for summary judgment against W. L. Acuff, as County Treasurer, for failure to pay warrant drawn in his favor for salary as such C'ounty Judge. From a decree granting the writ, the Treasurer appeals. The act has the effect to repeal the general act making all clerks of circuit courts ex officio clerks of county courts, and takes away all fees. This is not expressed in the title.

Brickell, Judge. Oscar Clemons was convicted of seduction, and be appeals. The court erred in excluding everybody from the courtroom. 157 Ala. 411, 47 South. 590; 71 N. W. 491; 16 C. J. 807; 8 R. C. L. 75-77. The court erred in not granting new trial on the affidavit of the juror. 103 Ala. 94, 15 South. 893; 16 C. J. 1079, 1162; 169 Ala. 552, 53 South. 803. Counsel discuss other assignments of error, but without further citation of authority.

Tossie King was convicted of manslaughter for the killing of one W. G. Thrower, a policeman, in the city of Tuscaloosa, and he appeals. Most, of the facts sufficiently appear from the opinion of the court.

<p>Original petition by Emily C. Roberts for a preliminary 'writ of mandamus to compel Hon. Joel W. Goldsby, as Circuit Judge, to fix a supersedeas bond on appeal by petitioner from a judgment in habeas corpus, which awarded to Kate M. Massingill the custody of her minor child as against petitioner, the paternal grandmother.</p>

A. Pearce, Judge. Victor Carr was convicted of burglary, and he appeals. The state did not meet the burden of showing that the' confessions were voluntarily made, and hence erred in admitting the testimony of Domingas, 16 Corpus Juris, 717; 84 Ala. 426, 4 South. 383; 181 Ala. 23, 61 South. 377? 127 Ala. 100, 28 South. 558. The corpus delicti had' not been proven, and therefore they were inadmissible. It was not shown that the ownership of the store was proved as laid.

<p>Criminal Law @=>1094^Conviction Affirmed in Absence of Bill of Exceptions and Error in Record.</p> <p>No bill of exceptions appearing in the record, and no error being found after an examination of the record, a judgment of conviction will be affirmed.</p>

<p>Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.</p> <p>Walter -Harris was convicted of manufacturing prohibited liquors, and he appeals.</p> <p>Counsel discuss the evidence and insist that under the Braxton Case, ante, p. 167, 82 South. 657, the corpus delicti was not made out. The action of the court in interrogating. the witness was improper, and-should work a reversal. 158 Ala. 539, 48 South. 553, 132 Am. St. Rep. 38.</p>

<p>Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.</p> <p>Oscar McLean was convicted of manufacturing prohibited liquors, and he appeals.</p>

<p>1. Evidence <©=>461(1) — Quitclaim Deed Admissible as Showing Construction put upon Contract of Sale.</p> <p>In an action by a broker to recover commissions for furnishing a purchaser, a quitclaim deed, from the alleged purchaser to the-seller, was admissible as going to show what construction the defendant put upon a contract of purchase and sale entered into, and that it was considered as a binding contract.</p> <p>2. Brokers <©=>60 — Entitled to Compensation on ' Furnishing Purchaser Regardless of Contract Entered into.</p> <p>A broker, having procured purchaser ready, willing, and able to purchase the property upon terms satisfactory to the owner, was entitled to be paid the agreed commission, and where a purchaser was procured and a contract of purchase and sale executed and accepted, a broker’s duty was ended, and he was entitle!! to Compensation, whether the owner ever enforced the contract or whether he afterwards agreed to rescind.</p> <p>3. Appeal and Error <s^1047(1) — Errors "as to Evidence Immaterial, where Plaintiee Entitled to General Charge.</p> <p>Erroneous rulings of the court on evidence were immaterial, where, upon the undisputed evidence in the Case, and considering everything offered to be proved by defendant, plaintiff was entitled to the general affirmative charge.</p> <p><te>For other eases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Criminal Law &wkey;1032(l) — ‘Sufficiency of Indictment not Challenged not Reviewed.</p> <p>Where an indictment was not challenged by demurrer or otherwise, its sufficiency -will not be reviewed on appeal.</p> <p>2. Perjury <&wkey;l — Essentials of Offense.</p> <p>Under Code 1907, § 7543, the essentials to-a conviction for perjury are that- a lawful oath was administered by an officer having authority, that defendant as a witness swore falsely as to a material matter involved in some judicial proceeding, and that such false swearing was willful and corruptly done.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Perjury.]</p> <p>3. Oath <&wkey;l — Nature of.</p> <p>An oath may be defined to be a solemn adjuration to God to punish the affiant if he swears falsely, the sanction of the oath being a belief that the Supreme Being will punish falsehood, or it may be defined as a declaration or promise made by calling on God to witness what is said (quoting Words and Phrases, Oath.)</p> <p>dfcoIPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>4. Criminal Law <&wkey;450 — Testimony that Commissioner Administered Oath Inadmissible, being Conclusion.</p> <p>Testimony by commissioner, before whom it was asserted defendant gave false testimony, that he administered the oath, was improper, being the conclusion of witness as to a matter which it was for the jury to determine.</p> <p>5. Perjury i&wkey;10 — To Constitute Valid Oath there must be some Unequivocal Act.</p> <p>To constitute a valid oath for the falsity of which perjury will lie, there must be an unequivocal and present act in some form, in the presence of an officer authorized to administer oaths, and the mere delivery of an affidavit signed by the person presenting it to an officer for,his certificate is not such an act.</p> <p>C. Witnesses <§=^248(2) — Answer not Responsive.</p> <p>In a prosecution for perjury, where the commissioner supposed to have administered the oath to defendant in response to a question as to whether he did so said that he usually did, such answer should be stricken, not being responsive.</p> <p>7. Perjury <&wkey;33(5) — Evidence Insufficient to show Oath was Administered.</p> <p>In a prosecution for perjury, evidence held insufficient to show -that the oath was administered to defendant as alleged.</p> <p><g^>Por other cases see same topic and KEY-NUMBER in all X£ey-Nnmbered Digests and Indexes</p>

W. Haralson, Judge. Joe Stephens was indicted on a charge of murder in the first,degree, and on the trial was convicted of manslaughter in the first degree, and from the judgment he appeals. The language of the court in excluding the admittedly incompetent testimony did not remove the prejudice of its admission. 15 Ala. App. 454, 73 South. 766.

P. Heflin, Judge. Solomon Porter was convicted of buying, receiving, or concealing stolen property, and he appeals. The burglary count in the indictment is as follows, omitting formal charging parts: Solomon Porter feloniously took and- carried away from the dwelling house of E. F. Terry [here follows description and value of property], the personal property of E. F. Terry.

Brickell, Judge. John Leigeber was indicted for a violation of the prohibition law, and was convicted of having in his possession more than two quarts of spirituous liquors, and from the judgment he appeals. Plea 3 was good, and the demurrers interposed should not have been sustained. Acts 1915, p. 724, §§ 1221, 1222; 16 Ala. App. 36, 75 South. 181; 155 Ala. 78, 46 South. 491; 136 Ala. 96, 33 South. 888.

S. Williams, Judge. Tom Jimmerson was convicted of manufacturing- prohibited liquors, and lie appeals. Counsel point out errors, as they insist, in the admission and rejection of evidence, and in support thereof they cite G8 South. 673; 10 Ala. App. 161, 64 South. 544; 6 Ala. xVpp. 41, 60 South. 455; 8 Ala. App. 367, 62 South. 322. The record is free from error, and the case should be affirmed. 78 South. 378;- 16 Ala. App. 126, 75 South. 718; 15 Ala.

C. Brickell, Judge. Jake and Ed Morell were convicted of assault with intent to murder, and they appeal. The charge given for the state was error to reversal. 60 Ala. 441; 85 Ala. 11, 4 South. 730; 90 Ala. 618, 8 South. 680 ; 94 Ala. 19, 10 South. 606; 105 Ala. 72, 72 South. 119; 98 Ala. 23, 13 South. 329; 102 Ala. 156, 15 South. 438; 147 Ala. 5, 41 South. 519.

Circuit Court, Dallas County; B. M. Miller, Judge. Ben Walker was convicted of making or manufacturing prohibited liquors, and he appeals. The facts sufficiently appear from the opinion of the court. 1 The evidence showed that the second ground of the motion should have been sustained, and that the court erred in failing, to do so. Section 7297, Code 1907; 53 Ala. 481, 25 Anf. Rep. 643; 117 Ala. 183, 23 South. 43; 162 Ala. 74, 50 South. 279, 19 Ann. Cas. 867; 13 Ala.

B. Poster, Judge. Detinue by Jesse Sansom against C. N. Speigner for certain personal property in which claim to the property was interposed by the Covington National Bank. Upon trial of the issues there was verdict for the claimant, and the plaintiff appeals. The plaintiff relied upon a mortgage executed by C. N. Speigner on February 21, 1916.

County; O. A. Steele, Judge. Clifford Fox was convicted of larceny and he appealed. For statement of facts see 87 South. 623. The following charges were refused to the defendant: (4) I charge you that, if under the evidence Williams contracted to sell the Ford car to the defendant, you must acquit the defendant.

<p>New Trial &wkey;j75(2) — Inadequacy op Damages no Ground, where Jury Justified in so Finding.</p> <p>In an action for damages for failure to pay check drawn on defendant bank, where it. could not be said that the jury could not find from the evidence, as it did, that the actual damages suffered by plaintiff was only six cents, trial court erred in granting plaintiff new trial on the ground of inadequacy of damages.</p> <p>other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.</p> <p>Harry Blevins was convicted of murder in tbe first degree, and be appeals. Reversed and remanded.</p>

<p>Appear and. Error <&wkey;1010(l) — Findings Supported by Evidence not Disturbed.</p> <p>Findings of the trial court, sitting without a jury, based upon ample evidence, will not be disturbed on appeal.</p> <p><®s»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

J. H. Nelson sued Sidney Frenkel for damages for injuries arising out of the negligent operation of an automobile, and propounded certain interrogatories, as appears from the opinion of the court, and being dissatisfied with the answers thereto, or the failure of Frenkel to answer some of them, asked for an attachment to compel Frenkel to fully answer.

P. Almon, Judge. William Lindsey was convicted of violating the prohibition law, and he appeals. Counsel discuss the errors assigned, but without citation of authority.

D. Merrill, Judge. Hugo Smith was convicted of violating the prohibition law, and he appeals. The sheriff of Talladega county and two revenue officers arrested Hugo. Smith and Grady Walker as they were driving along a road in a buggy and found some whisky that Grady Walker had thrown out of the buggy. Smith was not seen with any whisky, and Walker testified that he had the whisky in his pocket when Smith caught up with him and when he got into Smith’s buggy.

<p>Appeal from Circuit Court, De Kalb County ; W. W. Haralson, Judge.</p> <p>Action by Ben E. Hunt against the Alabama Great Southern Railroad Company for damages for injuries suffered while a passenger. . Judgment for plaintiff, and defendant appeals.</p> <p>The following is charge 2, given for the plaintiff:</p> <p>I charge you that if you believe from the testimony that- this plaintiff was treated as he says he was on the occasion when he jumped from the train, and if you further believe that tKe men operating the train, or"any of them, had knowledge of his treatment, or if from the circumstances they were put on notice that Hunt was being imposed upon, then it was the duty of those in charge of the train to protect Hunt, and it is their duty to protect him whether he appeal for it or not, and if those in charge of the train failed to so protect the plaintiff, then the defendant was guilty of negligence.</p> <p>Assignments 27 and 28 relate to tlie evidence of the witness Wheeler Stout and his answer, as more fully appears from the opinion itself.</p> <p>The oral charge of the court and charge 2 given for plaintiff were erroneous. 78 Tex. 385, 14 S. W. 890. The court was in error in admitting the evidence of the witness Stout. 77 Ala. 112; 77 Ala. 14; 132 Ala. 637, 32 South. 299. The court should have directed a verdict for the defendant on counts 10, 11, C, and D. 72 Mass. 224; 113 Ind. 205, 14 N. E. 541 ;■ 4 Ind. T. 462, 69 S. W. 937 ; 22 U. S. (9 Wheat.) 325, 6 L. Ed. 101.</p> <p>If a passenger acts as a reasonably prudent man would have acted, in view of the danger as it appeared to him, he is not guilty of contributory negligence. 6 Cyc. 637; 10 O. J. 1100; 132 Ala. 420, 31 South. 598. The trial court properly construed the law, ás fully appears from the opinion of the Court of Appeals.</p>

Foster, Judge. Action by the First National Bank of Fayette against J. F. South. Judgment for plaintiff, and defendant appeals. Where the note contains conditions, it cannot be enforced until the conditions have been complied with. 106 Ala. 561, 17 South. 534; 144 Ala. 166, 39 South. 898; 194 Ala. 672, 69 South. 894.

<p>Indictment and Information &wkey;>190 — Under Indictment for an Offense' Conviction MAY BE FOR ATTEMPT.</p> <p>By express provision of Code 1907, § 6311, on trial of an indictment for any offense, the jury, though finding defendant not guilty of the offense charged, may, if the evidence warrants it, find him guilty of an attempt to commit such offense; so that a charge, to acquit in case of doubt whether the treatment produced the abortion charged in the indictment, is properly refused.</p> <p><5te»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Chilton County; Leon McCord, Judge.</p> <p>Action by Charles Phillips against J. M. Langston, upon a promissory note. Judgment for. plaintiff, and defendant appeals.</p> <p>The complaint is as follows:</p> <p>Plaintiff claims of the defendant the sum of $750; due by promissory note dated March 2, 1914, due on or before November 1, 1914. payable to the order of “myself,” which said note was signed by the said J. M. Langston, and indorsed by him, and thereupon delivered to the Pep-to-Lac Company of America, a corporation. The said ncte was sold and delivered to plaintiff, and he is now the holder and owner thereof; and the said sum of $750 and interest thereon from date are due, owing, and unpaid. (Then follows the usual declaration of waiver clause and the promise to pay and claim for attorney’s fee.)</p> <p>The following pleas were filed by the defendant:</p> <p>1. That the plaintiff should not have and maintain this cause of action, for that the note, the subject of this suit, was executed to Pep-to-Lac Company-of America, and subsequently acquired by this plaintiff, so defendant is advised, am} so avers: That the said Pep-to-Lac Company of America was a corporation organized under the laws of the state of Delaware; that on, to wit, the 2d day of March, 1914, the said Pep-to-Lac Company of America had no permit, as required by law, to do business in the state of Alabama, for the year 1914.</p> <p>2. That the plaintiff should not have maintained this cause of action, for that the note, the subject of this suit, was executed and delivered to Pep-to-Lac Company of America, a Delaware corporation, in the state of Alabama, which said note plaintiff . claims to own for corporate stock sold by said Pep-to-Lac Company of America to this defendant, in Alabama. And defendant alleges that the said Pep-to-Lac Company of America failed to procure from the Secretary of State of the state of Alabama v permit admitting it to do business in -the si,ate of Alabama as a foreign corporation, in the year 1914. In no manner waiving other defenses, by demurrer or plea, but insisting on the same, this defendant says, therefore, that this action on the said note is forever barred, cather in the hands of the original holder or any subsequent holder or owner, and that said note should therefore be dismissed out of this court, at the 'cost of the plaintiff in this behalf expended. That defendant, on the hearing of this plea, will offer in support of same the duly authenticated certificate of the proper department of the state.</p> <p>3. That this plaintiff should not have and maintain this cause of action, for that the note, the subject of this suit, was executed and delivered to the Pei)-to-Lac Company of America, a Delaware corporation, for corporate stock sold by said Pep-to-Lac Company of America, to this defendant in Alabama. And defendant alleges that the said Pep-to-Lac Company of America failed to pay its franchise tax due to the state of Alabama for the year 1914.</p> <p>4. That this plaintiff should not have and maintain this cause of action, for that the note, the subject of this suit, was executed and delivered to Pep-to-Lac Company of America, a foreign corporation, for corporate stock sold by said Pep-to-Lac Company of America to this defendant, in Alabama, and defendant alleges that the said Pep-to-Lac Company of America failed to pay its franchise tax due to the county of Jefferson, state of Alabama, for the year 1914.</p> <p>5. That this plaintiff should not have and maintain this cause of action, for that the note in suit was executed and delivered to Pep-to-Lac Company of America, a foreign corporation, stock sold by said Pep-to-Lac Company of America to this defendant, in the state of Alabama; and defendant alleges that for the year 1914 said corporation failed to pay its franchise license.</p> <p>6. That defendant should maintain or demand any action on said note, which was a contract made in this state, the consideration for which was corporate stock purchased by defendant from Pep-to-Lac Company of America in the year 1914, in Alabama. For which year said corporation, being a foreign corporation, failed to pay its state franchise license.</p> <p>7. Defendant says further that for the said year, 1914, the said Pep-to-Lac Company of America failed to pay its county franchise license due to Jefferson county, Ala., and should not maintain or demand any action in this court on said note.</p> <p>■ Plaintiff demurred to these several pleas, as follows:</p> <p>1. It is not alleged that the contract was made in Alabama, and to be performed in Alabama.</p> <p>2. It is not alleged that plaintiff is not a bona fide holder for value.</p> <p>3. No facts are alleged sufficient to show that Pep-to-Lac Company of America is a foreign corporation, and engaged in doing or transacting business in Alabama, contrary to law.</p> <p>4. It is not alleged that the sale of the stock on the part of the Pep-to-Lae Company of America constituted the act, business or transaction prohibited by statute to be done by foreign corporations.</p> <p>5. For aught appearing from said pleas, the Pep-to-Lac Company of America accepted the •subscription for stock and issued the stock outside of the state of Alabama.</p> <p>6. It is not alleged that the note, the foundation of this suit, was accepted in Alabama, or that it was in payment of stock issued by the Pep-to-Lac Company of America in Alabama, contrary to law.</p> <p>7. Nothing is alleged in said pleas to show that Pep-to-Lac Company of America, a foreign •corporation, unlawfully engaged in doing or transacting business in Alabama.</p> <p>8. The facts alleged in said pleas are not sufficient to show that the Pep-to-Lac Company of America engaged in or was doing business in Alabama contrary to law.</p> <p>9. An agreement to sell stock by acceptance of subscription by an agent for stock in a foreign corporation, the stock to be issued when the contract for said stock is approved by the Pep-to-Lac Company of America, is not doing business, or transacting the same, that is contrary to law of Alabama.</p> <p>10. For aught appearing in said pleas, the Pep-to-Lac Company of America was engaged in interstate commerce at the time the act complained of took place.</p> <p>11. The act complained of as being contrary to law is not sufficiently set forth to show that the Pep-to-Lac Company of America violated any law of the state, or was engaged in doing business contrary thereto.</p> <p>. 12. That said allegation that said corporation is a foreign corporation and engaged in business in the state of Alabama is but the conclusion of the pleader.</p> <p>13. It is not alleged that the Pep-to-Lac Company of America sold the stock in Alabama.</p> <p>14. The allegations that Pep-to-Lac Company of America is a foreign, or Delaware, corporation is but the conclusion of pleader.</p> <p>' 15. The allegation that Pep-to-Lac Company of America was engaged in doing business in Alabama is but the conclusion of pleader.</p> <p>16. The allegation that Pep-to-Lac Company of America failed to pay its franchise taxes for the year 1914 is but the conclusion of the pleader.</p> <p>17. The allegation that Pep-to-Lae Company of America failed to obtain from the Secretary of State an annual permit for the year 1914 to do business in Alabama is but the conclusion of the pleader.</p> <p>18. It is not alleged that the sale of stock in the state of Alabama, or the acceptance of the note therefor by Pep-to-Lac Company of America, to the defendant, was the act, the doing of business by said corporation, that is contrary to law.</p> <p>Tííe court erred in overruling demurrers to the pleas. 197 Ala. 10, 72 South. 314; 16 Ala. App. 86, 75 South. 634. The court erred in permitting the witness to testify as to the contents of the record. 3 Stew. & P. 81; secs. 3983 and 3985, Code 1907, and authorities cited.</p> <p>The pleas were sufficient. 15 Ala. App. 675, 74 South. 761; 75 Ala. 473; 120 Ala. 493, 24 South. 959; 171 Ala. 76, 54 South. 537. There was no error committed in admission of evidence. 17'Cyc. 499 ; 1 Greenl. (Me.) 121, 10 Am. Dec. 45; 15 Ala. App. 675, 74 South. ,761.</p>

S. Williams, Judge. Robert Jordan was convicted of receiving stolen goods,' and he appeals. After reading the written charges to the jury, the court said: “Those charges are given for the defendant and are correct statements of the law; they are in keeping with what I have said to you orally.

S. Williams, Judge. Soloman Kelly was convicted of manslaughter,- and appeals.

A. Pearce, Judge. Weeks Taylor was convicted of manufacturing prohibited liquor, and he appeals. Witness May testified as follows: “I had a conversation with Mr. Taylor after we got down there. I did not make any threats against him or offer him any inducement or make any promise or tell him it would be better to make a statement.” Following this, the witness testified to certain admissions or statements made by the defendant.

<p>Appeal and Error <&wkey;843(l) —' Questions before Court op Appeals Becoming Moot through Supreme Court’s Decision need not be Decided.</p> <p>Upon an appeal to the Court of Appeals, where as a result of the decision of the Supreme Court in the original appeal the questions involved have become moot, so that a decision thereof _could be of no value, such questions will not be decided.</p> <p>©=^>For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.</p> <p>Lon Blakey was convicted of - distilling whisky, and he appeals.</p> <p>The court was in error in permitting testimony as to what was found at the place five or six weeks prior to the commission of the alleged crime. 10 Ala. App. 161, 64 South. 544; 8 Ala. App. 367, 62 South. 322; 6 Ala. App. 41, 60 South. 455. Counsel discuss other assignments of error, but without further citation of authority.</p>

W. Harralson, Judge. O. Kuykendall was convicted of manslaughter, and he appealed. The following is the argument of counsel objected to: “Gentlemen, you know as a matter of common knowledge that a shot that entered the eye and went through the brain would kill a man instantly.” The following charges were refused the defendant: (2) “You should endeavor to ascertain from all the evidence in the case wbat purpose and motives prompted the defendant.” (3) Identical with 2.

P. Heflin, Judge.' William IT. Cutcliff was convicted of assault with intent to murder his wife, and he appeals. The defendant was entitled to the affirmative charge because of a variance in the name of the person alleged to have been assaulted. Section 7142, C'ode 1907; 61 Ala. 224 ; 52 Ala. 405; 53 Afa. 476 ; 59 Ala. 37; 52 Ala. 414; 147 Ala. 104, 41 South. 911; 134 Ala. 145, 32 South. 273.

S. Williams, Judge. Buddie McGilvary was convicted of embezzlement, and he appeals.. Certiorari denied by Supreme Court, 87' South. 410.

Kyle, Judge. Joe Gardner was convicted of grand larceny, and appeals. Counsel insist that the judgment is not sufficient to show that defendant appeared in open court, but they cite no authority. The charge set out in the opinion should have been given. 131 Ala. 10, 31 South. 569; 130 Ala. 99, 30 South. 394.

Grayson, Judge. Mitchell Latikos was convicted of receiving or concealing stolen goods, and he appeals. Counsel discuss the evidence, but without citation of authority. They insist that the charges requested should have been given. 21 South. 993; 58 Ala. 355; 106 Ala. 44, 17 South. 321. There was no error commitiod in the rejection of the evidence. 63 Ala. 80; 200 Ala. 265, 76 South. 31; 155 Ala. 99, 46 South. 459; 15 Ala. App. 325, 73 South. 209.

<p>Appeal from Circuit Court, Jefferson County ; Dan A. Green, Judge.</p> <p>Action by Arlie Barber against F. P. Locascio. Judgment for plaintiff, and defendant appeals.</p> <p>Certiorari denied, 87 South. 704.</p> <p>Court erred in rendering judgment for the plaintiff. 65 Ala, 70; 9 Ala. App. 71, 64 South. 158; 1 Taylor’s L. & T. § 291; 2 Wood’s L. & T. 1174.</p> <p>There was no retaking in such a sense as to deprive the landlord of his rent between the abandonment and May 1st. . 68 Miss. 664, 9 South. 895, 13 L. R. A. 598, 24 Am. St. Rep. 294; 184 111. 421, 56 N. E. 807, 75 Am. St. Rep. 181; .89 Cal. 464, 26 Pac. 967, 23 Am. St. Rep. 488; 22 Or. 566, 30 Pac. 430, 29 Am. St. Rep. 625; 101 S. W. 269; 25 S. E. 713. Court properly rendered judgment for the plaintiff. 193 Ala. 438, 69 South. 549; 24 Cye. 1165.</p>

I. Jones, Judge. Action by the Pennsylvania Railroad Company against the Allison Lumber Company, to recover a balance alleged to be due on the shipment of a car of lumber. Judgment of nonsuit and plaintiff appeals. Counsel discusses the action of the court in its ruling on demurrer with citation of authority, but does not discuss -the matters treated in the opinion. The appeal is not taken within six months from the ruling on demurrers. Acts 1915, p. 711.

S. Williams, Judge. Albert Planners was charged with murder in the first degree, convicted of manslaughter in the first degree, and he appeals. Counsel discuss the various exceptions to evidence and to charges given and refused, with citation of authority, but in view of the opinion it is not deemed necessary to here set them out.

<p>Appeal from Circuit Court, Etowah County; W. J. Martin, Judge.</p> <p>Fred Locklear was convicted of assault with intent to murder, and he appeals.</p> <p>The following are the assignments of error referred to in the opinion:</p> <p>(18) Oral charge of the court:</p> <p>“I think, gentlemen, that I have probably covered this matter, but in the event I did not, and that you may understand what the court desires to say to you, in determining the intent of defendant at the time of the alleged assault, you may consider the character of the wounds, whether or not they were such as to cause serious bodily harm or death, in determining whether or not the defendant at the time intended to take the life of Tom Sanson.”</p> <p>Assignments 19 and 20 sufficiently- appear.</p> <p>The charge under assignment* 24, refused to the defendant, is as follows:</p> <p>“If at the time of the difficulty, the defendant knew that he was cutting the defendant, but did not intend to kill him, you cannot convict him of assault with intent to murder.”</p> <p>Assignment 25: A charge refused to the defendant is as follows:</p> <p>“If the defendant’s mind, at the time of the difficulty, was in such a condition by reason of drunkenness, or anything else, that he could not form in his mind the intent and purpose to commit murder, so as to appreciate and understand that he was then and there perpetrating a murder or attempting to do so, then you cannot convict him of assault with intent to murder.”</p> <p>Assignment 29:</p> <p>A charge refused to the defendant as follows: The usual charge as to self-defense.</p> <p>Charge 26:</p> <p>“If the defendant did not realize what he was doing, when he assaulted Sanson, you cannot convict him of any offense.”</p> <p>Charge 9:</p> <p>By the term “malice aforethought” is meant malice entertained and present in the mind and considered by the mind before the act is committed. Although the defendant may have had malice at the precise instance, when he struck Sanson with a knife, yet, if that malice had not been entertained in the mind long enough to have been considered and acted upon it is not malice, aforethought.</p> <p>The burden is- on the state to offer evidence that at th<^ time of the assault the defendant entertained, or had the capacity to entertain, the intent. 13 Ala. App. 133, 69 South. 376-. Court erred in its oral charge to the jury. 1 Ala. App. 178, 56 South. 21; 8 Ala. App. 364, 62 South. 313; 63 South. 18. The court erred in admitting the clothes in evidence. 150 Ala. 327, 43 South. 342. Counsel discuss other assignments of error, but without further citation of authority.</p>

S. Williams, Judge. Aaron McGilvary was convicted of the of-fense of bastardy, and he appeals. The court erred in declining to permit the defendant to show that he objected to going to trial on the original affidavit and warrant in the justice court, and in refusing to quash the proceedings because the original warrant did not allege that the prosecutrix was a single woman. 71 Ala. 11.

L. Brewer, Judge. Action by Henry M. Graves, against Arthur L. Tucker and others, individually and as partners, doing business under the firm name and style of Palace Pharmacy, for damages for personal injuries in the sale of drugs. Judgment for the plaintiff, and defendants appeal.

M. Miller, Judge. Action by H. L. Barksdale against the Coca-Cola Bottling Company for damages for personal injuries received from drinking an imperfect bottle of Coca-Cola. Judgment for the plaintiff in the sum of $500, and defendant appeals.

S. Williams, Judge. Henry Dozier was convicted of violating the Prohibition Law, and appeals. There was prejudicial error in the action of the court in going to the jury room and delivering the oral part of its charge. 146 Ala. 102, 41 South. 274; 11 Ala. App. 191, 65 South. 702; 15 Ala. App. 26, 72 South. 511. Counsel discuss the evidence, but without citation of authority.

<p>Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.</p> <p>Alfred Smith was convicted of manufacturing prohibited liquors and he appealed.</p> <p>Counsel insist that under the evidence the defendant was entitled to the affirmative charge.</p>

B. Foster, Judge. Charlie Culpepper was charged with murder in the first degree, convicted of murder in the second degree, and he appealed. The record must affirmatively show that the defendant was present when the order was made fixing a day for the trial and ordering a special venire. 71 Ala. 17; Acts 1915, p. 708. The case cited by appellant has no application to the instant ease. The rule has been entirely changed by Acts 1915, p. 708; 202 Ala. 24, 79 South. 362.

<p>Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.</p> <p>Pharoah Cook was convicted of petit/larceny, and he appeals.</p> <p>The fact that the court permitted the witness Barton to testify that defendant told him that the mule broke one down in tbe back, and the sow laid on the other and killed it, was error, because it was inculpatory admission on the part of the defendant. 171 Ala. 19, 55 South. 159; 144 Ala. 106, 42 South. 30; 2 Ala. App. 175, 56 South. 64. The testimony as to whether Mhrvin Brown paid any attention to the pigs, and the testimony of Goodwin as to whether he knew anything about tbe pigs being killed and replaced, was error. 159 Ala. 14, 48 South. 858; 151 Ala. 125, 44 South. 60; 142 Ala. 698, 39 South. 92, 110 Am. St. Rep. 55; 147 Ala. 33, 41 South. 973; 96 Ala. 29, 11 South. 478. The affirmative charge should have been given, since tbe evidence showed that the offense was barred. Section 7347, Code 1907.</p>

J. Curtis, Judge. Action by the Cleveland Lumber Company against Thomas Worthington in assumpsit. Judgment for the plaintiff, and defendant appeals. Certiorari denied 88 South 159. Worthington had a contract with a coal company to build a dock on the Warrior river within a stipulated time and carrying heavy penalties for a failure to complete the work within the time.

B. Foster, Judge. S. H. Carroll was convicted of violating the prohibition law, and he appealed. The charge referred to in the opinion is as follows: “Good character, if proven by the defendant, is sufficient, if believed by you, to generate a reasonable doubt of the defendant’s guilt.” The defendant was entitled to the affirmative charge under the evidence in this case. 115 Ala. 42, 22 South. 551; 16 Ala. App. 138, 75 South. 814; Spelce v. State, ante, p. 401, 85 South. 835.

<p>Appeal from Circuit Court, Pike County; A. B. Poster, Judge.</p> <p>•Assumpsit by Irene Grimmer, as administratrix, against M. J. Grimmer. Prom a judgment sustaining the demurrers to the pleas, and entering judgment for the plaintiff, the defendant appeals.</p> <p>Before assignment of dower, the widow may obtain possession of the lands and the dwelling of her husband. Section 3824, Code 1907. There is nothing more we can say upon the subject for the enlightenment of the court.</p>

, Judge. Petition by Frank McClure for a writ of habeas corpus to obtain a release from arrest. From an order denying the writ, he appeals. The commissioners’ court derived its authority to levy this tax from Acts 1915, p. 573 (section 13) and their rules must be strictly construed. 16 Ala. App. 353, 78 South. 100'; 129 Ala. 275, 30 South. 94.

<p>Trial <&wkey;108% — Manner in Which Court Qualified Jury as to Supposed Indemnitor of Defendant Steamship Company not Reversible Error.</p> <p>AVhere court in personal injury action struck out statement of counsel that real defendant was an insurance company, but permitted counsel to examine witnesses as to whether there was in fact another person interested in the suit so that jury could be qualified as to such a party, and on examination it appeared that there was an insurance company, but witness did not know the name thereof, but stated the name of company’s attorneys, and court qualified jury as to the attorneys, there was no reversible error.</p> <p><§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

P. Heflin, Judge. Claude Wriglit was convicted of receiving stolen property, and he appeals. The court erred in admitting the testimony of Sternburg, Hose, and Drake. 17 Ala. 451; 54 Ala. 520; 81 Ala. 20, 1 South. 577; 106 Ala. 1, 17 South. 328; 112 Ala. 1, 21 South. 214; 155 Ala. 93, 46 South. 470.

<p>1. Pleading <&wkey;194(4) — Special Plea Demurrable Where not Necessary Because Matter is Available under General Issue.</p> <p>In an action against a railroad company for death of a mule, where, by amended complaint, M., as Director General, was made a defendant, and interposed a special plea that he was not Director General at the time of uor since the amendment, a demurrer thereto on the ground that such defense was available under the general issue was properly sustained.</p> <p>2. Evidence <&wkey;44 — Court will Take Judicial Notice as to Who is Director General oe Railroads.</p> <p>The court will take judicial notice that the defendant was not Director General of Railroads at the time of an amended complaint making him a defendant, and that another then occupied that position,</p> <p>3. Railroads <&wkey;5%, New, vol. 6A Key-No. Series — Substituting Wrong Director General Requires Affirmative Charge.</p> <p>In an action against a railroad company, where the amended complaint substituted one, as Director General, as party defendant, when in fact another occupied the position at the time of the amendment, an affirmative charge for the defendant should have been given.</p> <p>4. Railroads <&wkey;447(7) — Instruction held Improper as Relieving Engineer of Duty to Keep Lookout for Stock.</p> <p>An instruction denying recovery for the death of a mule if the animal passed over the track and got out of the sight of the engineer and then suddenly turned and ran into the side of the engine before the fireman could notify the engineer, is properly refused as relieving the engineer of his duty to keep lookout.</p> <p>5. Railroads &wkey;>447(7) — Instruction Properly Refused as Tending to Pretermit Duty to Keep Lookout for Stock.</p> <p>An instruction that, if any effort to avert injury after discovery that plaintiff’s mule was running toward the engine would have availed nothing, then it was not incumbent on the engineer to make any effort to avoid the injury, was properly refused as tending to pretermit the duty to keep a lookout and to confine defendant’s duty to avert injury only after discovery that the mule'was running toward the engine.</p> <p>6. Trial <&wkey;242 — Refusal of Misleading and Confusing Charge not Error.</p> <p>It is not error to refuse a misleading and confusing charge.</p> <p><i&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

C. Brickell, Judge. Mrs. W. B. Whittaker was convicted of keeping open store on .Sunday, and she appeals. The court was in error in directing a verdict for the state. 201 Ala. 392, 78 South. 454. . The court’s attention is called to the following cases as bearing upon the question here involved: 201 Ala. 392, 78 South. 454; 59 Ala. 64; 53 Ala. 481, 25 Am. Rep. 643; 76 Ala. 89; 131 Ala. 41, 31 South. 377.

<p>Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.</p> <p>Velpeau Moore was convicted of manufacturing prohibited liquors, in violation of Acts 1919, p. 6, § 15, a felony, and he appealed.</p> <p>Following is charge 4, refused to the defendant :</p> <p>The fact that a still or what purports to be a still was found near the defendant’s house is not alone sufficient to convict the defendant of the offense charged in the indictment.</p> <p>The court does not judicially know that mash beer is a malt liquor. 78 Ala. 417; 89 Ala. 112, 8 South. 56. Counsel discusses the assignments of error relative to the evidence, but without citation of authority. He insists that the new trial should have been granted. 73 Ala. 248; 175 Ala. 319, 57 South. 718, 40 L. R. A. (N. S.) 998.</p>

<p>Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge..</p> <p>Freddie Faulks was convicted of robbery, and he appeals.</p>

Goldsby, Judge. Application for mandamus by Julius S. Du Courneau, as Humane Officer of the County of Mobile, against the Board of Commissioners of the City of Mobile, to compel payment of an account. From an order or judgment sustaining demurrers to the petition, petitioner appeals. Counsel cite, authority in support of their contention that mandamus is the proper remedy, and that tbe Act of August 23, 1919, is constitutional, but they do not discuss the point decided.

<p>Appeal from Circuit Court, Blount County; O. A. Steele, Judge.</p> <p>Dan Washburn was convicted of seduction, and he appeals.</p>

<p>1. Criminal Law c&wkey;1124(4) — Motion for Nf.w Trial not Reviewable without Evidence.</p> <p>Where there is no showing as to the evidence offered in connection with the motion for a new trial, the motion will not be reviewed.</p> <p>2. Criminal Law <&wkey;1090(14), 1122(5) — Refusal of Charges not Reviewed where no Bill of Exceptions and Evidence is not Set Out.</p> <p>When there is no bill of exceptions, and the oral charge of the court is not set out, the refusal of requested charges cannot be reviewed.</p> <p>i&wkey;For other cases see same topic and KEY-NUMRER, in all Key-Numbered Digests and Indexes</p>

Fort, Judge. Ned Howard was convicted of forgery in the second degree, and he appealed.

<p>Appeal from Circuit Court, Mobile County ; Saft'old Berney, Judg*.</p> <p>Assumpsit by, L. J. Knox against the firm of Rivers Bros., and the individuals composing the firm. From a judgment sustaining demurrers to the complaint as well as a judgment for the defendant, the plaintiff appeals.</p> <p>The complaint is a substantial compliance with the code form, and is sufficient. 16 Ala. App. 654, 81 South. 146; 192 Ala. 611, 69 South. 15; 108 Ala. 511, 18 South. 530. The instrument declared on is a bill of exchange. Acts 1909, p. 146. It is not necessary that the signature be made in the usual place at the foot of the instrument, if it appears elsewhere in any part of the writing. 122 Ala. 506, 26 South. 113; 105 Ala. 1, 16 South. 575; 124 Ala. 529, 27 South. 510; 125 Ala. 280, 28 South. 74; 3 Ala. App. 551, 58 South. 63. In the absence of a sworn plea, a negotiable instrument will be presumed to have been properly executed, where it purports to have been executed, or is averred to have been executed, by the parties sought to be charged. 35 Ala. 476; 52 Ala. 196; 88 Ala. 290, 6 South. 833.</p> <p>Counsel criticize the authorities cited by appellant, and insist that they support the conclusions reached by the trial court.</p>

<p>Criminal Law <&wkey;l 090(14, 16) — Refused Charges and Motion for New Teial not Considered on Appeal, where no Bill of Exceptions.</p> <p>Where, on an appeal from a conviction of burglary, the record contained no bill of exceptions, setting out the evidence, and the time for filing one had expired, defendant’s refused charges and motion for a new trial cannot be considered.</p> <p><§=E’or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Cullman County; Robt. C. Brickell, Judge.</p> <p>John Allen was convicted of distilling, making, or manufacturing alcoholic, spirituous, malted, or mixed liquors or beverages in violation of law and he appeals.</p>

<p>1. Municipal Corporations &wkey;>590— Exercise of Power Conferred by Legislature Gives Ordinances Force of Statutes.</p> <p>Exercise by a municipality of power conferred by the Legislature to regulate the running at large of animals on the streets gives to their ordinances pursuant thereto the same force and effect as if passed directly by the Legislature.</p> <p>2. Municipal Corporations <@=>724 — Municipality not Liable for Injury to Person or Property in Performance of Public Functions.</p> <p>A municipal corporation is not liable for alleged tortious injuries to the persons or property of individuals when engaged in the performance of public or governmental functions or duties.</p> <p>3. Municipal Corporations <&wkey;731 — Municipality not Liable for Impounding Animals.</p> <p>A municipal corporation is not liable for impounding animals under an ordinance enacted by virtue of statutory authority, though in the particular instance the seizure was wrongful.</p> <p>4. Animals <&wkey;106 — Burden on Person Claiming Title Through Impounding Proceedings to Show Statute Complied With.</p> <p>In an action to recover possession of stock, where title iá claimed through impounding proceedings, the burden is on the person who claims title through the sale under the impounding proceedings to show affirmatively the statute has been complied with.</p> <p>5. Animals <&wkey;51 — Impounding Officers not Liable for Conversion.</p> <p>Where a mule was running at large on the streets of a city when taken up, and under the city ordinances the city impounding officers has the right to take it up, there was no conversion on their part subjecting them to liability to the owner.</p> <p>6. Animals <@=>51 — Poundkeeper not Liable for Conversion of Mule Sold.</p> <p>The poundkeeper of the city of Bessemer, who, in selling a mule taken up by impounding officers while running at large, acted under City Code, § 451, as agent of the law, bound to execute all process directed to him by a competent tribunal, was not liable as for conversion of the mule.</p> <p>7. Evidence <&wkey;344L-Cn?Y Ordinances Certified to by City Clerk Admissible— Those not Certified to Inadmissble.</p> <p>In an action against a city, its impounding officers, and poundkeeper for conversion- of a mule taken up while running at large and sold, there was no error in permitting introduction of an ordinance of the city certified to by city clerk as required by Code 1907, § 1220, but sections of the City Code not certified to by the clerk, it not appearing that they were part of any code or book of ordinances, etc., were inadmissible under the statute.</p> <p>«gs^JTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

J. Garrison, Judge. Action of detinue by R. P. Harris & Co. against Wylie Thomas for the recovery of a mule. Judgment for defendant, and plaintiff appeals. Under the facts in this case,' and the provisions contained in the mortgage, the plaintiff was entitled to recover the mule. 67 Ala. 529; 22 Neb. 717, 36 N. W. 155, 3 Am. St. Rep. 286; 63 Mich. 97, 29 N. W. 837, 6 Am. St. Rep. 284; Jones on Mortgages, §§ 766, 1174-1191.

S. Williams, Judge. Action by M. L. Beasley against Walker D.. Hines, as Director General of Railroads, operating the Central of Georgia Railroad, for damages for killing of certain mules by one of the trains of the defendant. Judgment for plaintiff, and defendant appeals. The oral charge of the court excepted to is as follows: “There was another rule'of law with regard to approach of trains or to the operation of a train on a foggy morning.

L. Brewer, Judge. Luther Heard was convicted of murder in the second degree, and he appeals.

P. Heflin, Judge. Catherine Jennings was convicted of forgery in the second degree, and she appealed. The following is the indictment: •The grand jury of said county charge that before finding of this indictment Catherine Jennings, with intent to injure or defraud, did falsely make, alter, forge, or counterfeit an instrument in writing, in words and figures substantially as follows: “Birmingham, Ala., Aug. 30, 1919. No. ---. Birmingham Trust & Savings Co. 61-8.

<p>1. Master and Servant <&wkey;265 (2) — Servant must Show Negligence Alleged.</p> <p>A servant suing for personal injuries must show that master was guilty of the negligence alleged in the complaint.</p> <p>2. Appeal and Error &wkey;>1047(l) — Rulings on Evidence not Harmful to. Plaintiff, Where Defendant was Entitled to Affirmative Charge.</p> <p>Any error in rulings of the court on the evidence cannot be complained of on appeal by plaintiff, where defendant was entitled, in any event, to amaffirmative charge.</p> <p>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

B. Foster, Judge. Action by Mrs. L. A. Dennis against the Sovereign Camp Woodmen of the World. Judgment for plaintiff, and defendant appeals. The court was in error in not permitting defendant to file plea 3. Section 5369, Code 1907 ; 38 Ala. 44; 56 Ala. 27; 58 Ala. 365; 60 Ala. 425; 106 Ala. 303, 17 South. 395. The court was in error in refusing the defendant the affirmative charge. 75 South. 463; 103 Iowa, 395, 72 N. W. 559; 142 Fed. 678, 73 C. C. A. 668; 11 App.

Goldsby, Judge. Action by Prank Chassin, by next friend, against J. N. McYoy, for damages for personal injuries suffered in an automobile accident. Judgment for the plaintiff, and defendant appeals. Plea 3, as amended, was good as to count 1, and' the court erred in sustaining demurrers thereto. 60 Ala. 621; 61 Ala. 376; 67 Ala. 114; 77 Ala. 448, 54 Am.

Grayson, Judge. Garnishment by Mrs. Kate L. Baltman on judgment recovered against R. B. Hudson, directed to the Palm Oil & Supply Company. From a special finding of the facts and a judgment staying the proceedings, the plaintiff appeals. • Counsel discusses the propositions of law insisted on by him, but does not discuss the matters touched on in the opinion. This case is ruled by the following; 88 Ala. 249, 7 South. 53; 115 Ala. 575, 22 South. 72.

K. McMorris, Judge. Assumpsit by the M. C. Kiser Company against N. F. Gerald. From adverse rulings on the pleading forcing plaintiff to a nonsuit, plaintiff appealed: The action was on the common counts and promissory notes. In reply the defendant set up his discharge in bankruptcy; that the debt was contracted prior thereto and prior to his petition in bankruptcy; that said debts were provable and were proven and were therefore discharged.

<p>Criminal Law &wkey;109^-CoNvicTiON AotikmED WHERE NO BILL OF EXCEPTION AND NO. Error in Record.</p> <p>Where there is no bill of exceptions in the record, and the time for filing one has expired, and no error appears in the record, judgment of conviction will be affirmed.</p> <p>cE=»Eor otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

M. Miller, Judge. Action by Dunnaway & Lambert, a partnership, against the American Railway Express Company for damages for injuries to a hog. Judgment for plaintiff, and defendant appeals. The defendant was entitled to a directed verdict. 78 Ala. 587; 123 Ala. 683, 27 South. 323; 58 South. 710; 65 Tex. Cr. R. 564, 144 S. W. 949; 123 Ala. 683, 27 South. 323; 10 O. J. 380. The court erred, in giving the charges as to the burden of proof requested by the defendant. 3 Ala.

C. Briekell, Judge. Van Wigginton was indicted on a charge of'murder in the second degree, and on his trial was convicted of manslaughter in the first degree. Prom the judgment, he appeals. The predicate w.as not sufficient upon which to introduce the evidence of the absent witness. 11 Ala. App. 15, 65 South. 444; 15 Ala. 749; 17 Ala. 354;. 17 Ala. 415; 67 Ala. 55, 42 Am. Rep. 95; 92 Ala. 41, 9 South. 406; 106 Ala. 74, 17 South. 512; 183 Ala. 61, 63 South. 71.

<p>Appeal from Circuit Court, Autauga County; B. K. MeMorris,-Judge.</p> <p>George Price was convicted of manufacturing whisky, and he appeals.</p>

<p>Appeal from Circuit Court, Elmore County; B. K. McMorris, Judge.</p> <p>Will Wood was convicted of murder in the second degree and appeals.</p> <p>The following are the charges referred to in the opinion: .</p> <p>(1) If the defendant’s testimony has not been impeached, then the jury' has no right to reject this testimony.</p> <p>(3) If the defendant was free from fault in bringing on the difficulty, it is immaterial whether the decedent had a weapon, but that if he made á demonstration such as to lead the defendant to believe that he was about to draw a pistol, the defendant had a right to fire first and to kill decedent,'without waiting to sée whether decedent had a weapon.</p> <p>(5) The defendant must be acquitted if a single juror has a reasonable doubt of his guilt arising from the evidence.</p> <p>(6) The jury must acquit the defendant if his conduct on reasonable hypothesis is consistent with Ms innocence.</p> <p>(8) A man’s home is his castle, and the, defendant, if free from fault in‘ bringing on the difficulty, was under no duty to retreat, but if the decedent made a demonstration, .such as to lead the defendant to believe that he was about to draw a pistol, the defendant had a right to kill the decedent without waiting to see whether decedent had a weapon or not.</p>

<p>Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.</p> <p>Mitchell Latikos was convicted of buying, receiving, or concealing stolen property, and he appeals.</p> <p>Statements made in the absence of the defendant are not admissible. 87 Ala. 24, 5 South. 829; 105 Ala. 60, 17 South. 114; 109 Ala. 11, 19 South. 535. Hearsay evidence is not admissible. 156 Ala. 44, 47 South 302. It was competent to show that a similar prosecution was pending against the witness Leland. 6 Ala. App. 27, 60 South. 446; 140 Ala. 65, 37 South. 233. The court erred in permitting the details of a previous conviction. 160 Ala. 107, 49 South. 678.</p> <p>What McCant said to Leland when he handed him the cigars was admissible. 177 Ala. 17, 59 South. 205. No predicate was laid to impeach Leland by contradictory statements. 196 Ala. 249, 72 South. 110. At any rate, the question was answered. Ante, p. 421, 84 South. 871. The court properly allowed the state to show the former conviction of the defendant. Section 4009, Code 1907; 131 Alai 48, 31 South. 572.</p>

K. McMorris, Judge. Habeas corpus proceedings by Tom Thurman to secure his discharge from the penitentiary where he was serving sentence of life imprisonment, after cpnviction of murder in the first degree. Prom an order granting the writ, and discharging the petitioner, the State appeals.

Grayson, Judge. Action by the R. O. Harris Grocery Company against the Mobile Light & Railroad Company for damages for injuries to an automobile truck. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.</p> <p>Comer Rowell was convicted of forgery, and he appeals.</p> <p>The evidence shows Reeves to have been an accomplice and his testimony is uncorroborated. Section 7897, Code 1907; 170 Ala. 80, 54 South. 516. 72 South. 596 ; 89 Ala. 134, 8 South. 104. The new trial should therefore have been granted in the trial court, and will be reviewed and granted here. Acts 1915, p. 722 ; 74 South. 400.</p> <p>Error is confessed in the matters indicated in the opinion.</p>

<p>Appeal from Circuit Court, Elmore County ; W. L. Martin, Judge.</p> <p>Cecil Whaley was convicted of violating the Prohibition Law of 1915, and he appeals.</p> <p>The information was insufficient. 39 Ala. 521; 19 Ala. 552; 69 Ala. 235; 89 Ala. 37, 8 South. 28; 98 Ala. 50, 13 SowHi. 148. The defect was one of substance, and not of form. 63 Conn. 522, 28 Atl. 32.</p>

E. Gamble, Judge. John Peterson was convicted of violating the prohibition law, and he appeals. The evidence tended to show that on a Sunday morning two of the witnesses went to the home of the defendant, and, while one remained on the outside, the other went in and purchased a half pint of rum. The defendant’s evidence tended to contradict this. The judgment was not sufficient. 123 Ala. 48, 20 South. 512; 12; Ala. App. 230, 67 South. 719.

M. Miller, Judge. Action by Zada Tidwell against Luther Patton for damages for deceit in the sale of a patent. The death of plaintiff was suggested, and the cause revived in the appellate court in the name of her administrator. Judgment for the plaintiff, and the defendant appeals.

Appeal.from Circuit Court, Jefferson County; J. C. B. Gwin, Judge. Pleas Bouyer was convicted in the recorder’s court of the City of Bessemer of violating a city ordinance, and appealed to the circuit, and from a judgment of conviction there, heagain appeals.

Kyle, Judge. Action by the E. C. Payne Lumber Company against Mary D. Simpson, in assump-' sit. Judgment for plaintiff, and defendant appeals. The contentions made by petitioner are fully answered by the opinion of the court of appeals as well as the following authorities: 8 Port. 268, 33 Am. Dec. 289; 3 Ala. 585, 37 Am. Dec. 714; 49 Ala. 281; 64 Ala. 2S, 38 Am. Rep. 1.

<p>Appeal from Circuit Court, Pickens County ; R. I. Jones, Judge.</p> <p>Ed Easley was convicted of manslaughter in the first degree, and he appeals.</p> <p>After discussing, with citation of authority, certain exceptions to the evidence, counsel insist that under the evidence defendant is not guilty of any offense, and that his motion for new trial should have been granted, and in support thereof he cites 12 Ala. App. 16, 67 South. 773; 77 Ala. 56; 95' Ala. 22, 11 South. 14; 110 Ala. 27, 20 South. 119; 119 Ala. 1, 25 South. 255; 125 Ala. 31, 27 South. 775.</p>

<p>Appeal from Circuit Court, Jefferson County; J. G. B. 'Gwin, Judge.</p> <p>John Baker was convicted of grand larceny, and he appeals.</p>

Action by Irene Johnson against J. E. Matlock, Constable, and the American Surety Company of New York. From a judginent for plaintiff, defendants appeal.

C. B. Gwin, Judge. Will Jackson was indicted on a charge of burglary and receiving stolen property knowing it to have been stolen. There was a verdict and judgment of guilty under the second count, and from the judgment, defendant appeals.

B. Foster, Judge. Claude' Lindsey was convicted of manslaughter in the first degree, and he appealed. The argument objected to was highly improper. 183 Ala. 273, 61 South. 80, Ann. Oas. 1916A, 543; 199 Ala. 411 ,.74 South. 454.

B. Smith, Judge. Action in detinue by Mrs. R. V. Mahan against Marx.,& Co., to recover a stock certificate. Judgment for the plaintiff, and defendant appeals.

<p>1. Criminal Law &wkey;1151 — Granting or Refusal of Continuances not Revisable, Unless Discretion Abused.</p> <p>Granting or refusing' a continuance is discretionary, and, unless it affirmatively appears that this discretion has been abused, the action of the court is not revisable upon appeal.</p> <p>2. Criminal Law <&wkey;605 — Court may Grant Continuance During Trial by Jury.</p> <p>Under Const. 1901, § 9', providing that no person shall, for the same offense, he twice put in jeopardy of life or limb, but courts may, for reasons fixed by law, discharge juries from the consideration of any case, the court had power to grant a motion for a continuance, even when made during the trial before the jury.</p> <p>3. Criminal Law <&wkey;699 — Attorney as Officer of Court and by Statute must Maintain Due Respect to Courts and Judges.</p> <p>An attorney, as an officer of the court, and under Code 1907, § 2985, subd. 2, must maintain due respect for the court and judge, the officers of the court, parties, witnesses, and jurors, and, in return is entitled to similar treatment from the judge especially to the extent that the interests of his client will not.be prejudiced.</p> <p>■4. Criminal Law <&wkey;.1144(10), 1152(1) — Appellate Court will not Interfere with Discretion of Trial Judge in Conduct of Trial Unless Abused. ■</p> <p>The trial judge is vested with much discretion in the conduct of the trial, and appellate courts will not interfere to control such discretion, unless it clearly appears there - has been an abuse of discretion; the presumption being that he will accord to all litigants a fair and impartial trial.</p> <p>5. Criminal Law <&wkey;655(l) —Trial Judge Who Uses any Language Tending to Bring Attorney into Contempt with Jury Commits Error.</p> <p>A trial judge who uses language which tends to bring an attorney into contempt before the jury, or makes any intimation which tends to prejudice them, commits reversible error.</p> <p>6. Criminal Law <&wkey;655(5) — Remarks of Judge to Attorney held not Prejudicial.</p> <p>Where the admissibility of evidence, etc., was discussed in the absence of the jury, but after the jury’s return defendant’s counsel reviewed the controversy, whereupon the court criticized him, and directed him to quit talking so much, to resume his seat and proceed with the trial, the remarks were not such as would prejudice the attorney before the jury, or injuriously affect defendant’s substantial rights.</p> <p>7. Criminal Law <&wkey;660 — Counsel should be Allowed to make Objections and Motions.</p> <p>The court should allow defendant’s counsel full opportunity to make'known his objections and to make such motions as he deems necessary in the interest of his client.</p> <p>8. Criminal Law <&wkey;369(5) — Evidence to Prove Larceny of Another Automobile THAN THAT CHARGED IN INDICTMENT INADMISSIBLE.</p> <p>In a prosecution for the larceny of an automobile, the admission of evidence to prove the larceny by defendant of another automobile, several months before, at a distant point, was error; there being no necessary connection between the two offenses.</p> <p>9. Criminal Law <&wkey;338(l) — Evidence must be Relevant to Question of Guilt.</p> <p>Under Const. 1901, § 6, entitling accused to demand the nature and cause of the accusation, etc., all evidence introduced must be relevant to the guilt or innocence of accused.</p> <p>10. Criminal Law <&wkey;304(2) — That Many Persons, Including Jurors, not Trained in Logical ThinkiWg is Common Knowledge.</p> <p>It is a matter of common knowledge Ahat the large majority of persons of average intelligence are untrained in logical methods of thinking, and prone to draw illogical and incorrect inferences • and conclusions without foundation, and that jurors are selected from such persons.</p> <p>11. Criminal Law <&wkey;370 — Evidence of Another Offense Admissible to Prove Scienter.</p> <p>Evidence of another offense than that charged will be received when necessary to prove the scienter or guilty knowledge, when it is an element of the offense charged.</p> <p>12. Criminal Law <&wkey;369(2) — Evidence of Another Offense Admissible when Part of Same Transaction.</p> <p>Evidence of another offense than that charged will be received when the two are so connected as to form part of one transaction.</p> <p>13. Criminal Law &wkey;>371(l) — Evidence of Another Offense Admissible to Show Intent.</p> <p>Evidence of another offense similar to that charged is admissible, when it is material to show the intent with which the act charged as criminal was done.</p> <p>—.rnr other eáses see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes</p> <p>14. Criminal Law <&wkey;371(12) — Evidence oe Another Oeeense Admissible to Prove Motive, When Two Acts are Connected.</p> <p>Evidence of another offense than that charged will be received, when it is necessary to prove a motive for the crime imputed and there is an apparent relation between the two acts.</p> <p>15. Criminal Law &wkey;>369(15) — Evidence of Another Offense Admissible to Prove</p> <p>. Identity of Offender or Instrument Used in Committing Offense.</p> <p>Evidence of another offense than that charged . will be received, when it is necessary to prove the identity of the offender, or of an instrument used in committing the offense.</p> <p>16. Criminal Law <&wkey;372(l) — Evidence of Another Offense Admissible Where Offense Consists of Series of Acts.</p> <p>Evidence of another offense than that charged will be received where the accusation involves a series of acts which must be proved to make out the offense.</p> <p>17. Criminal Law <&wkey;365(l) — Evidence of Another Offense Admissible Where Part of Res Gest®.</p> <p>Evidence of another offense than that charged will he received where the several offenses are all part of the res gestse.</p> <p>18. Criminal Law <&wkey;369(2) — Evidence of Another Offense not Admissible, Unless Some Connection Shown Uniting Crstmes for Accomplishment of Common Purpose.</p> <p>Before evidence of an offense other than that charged can be received, it must usually appear from the evidence that some connection existed between the crimes, in fact and in the mind of the accused, uniting them for the accomplishment of a purpose common to both.</p> <p>19. Criminal Law &wkey;>374, 736(1) — Evidence of Another Offense should be Rejected, Where Connection does not Clearly Appear — Question being for Court.</p> <p>Whether any connection exists between an offense charged and another sought to be proved is a question for the court, and' the evidence of the other offense should be rejected, if the court does not clearly perceive the connection.</p> <p>20. Criminal Law <&wkey;370 — Scienter not Element in Establishing Actual Larceny, and Evidence of Another Larceny not Admissible.</p> <p>Under a count charging defendant with the actual larceny of a certain automobile, evidence was inadmissible to show his larceny of another car; the question of scienter, or guilty knowledge, not being an element.</p> <p>21. Criminal Law <&wkey;369(15) — Evidence of Another Offense not Admissible to Prove Identity, where Offenses not Connected.</p> <p>Evidence of the larceny by defendant of another automobile than that charged in the indictment to have been stolen by him was not admissible to establish the identity of the accused, where the two offenses were committed some months apart and were in no way connected with each other.</p> <p>&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

C. B. Gwin, Judge. Action by J. S. Willingham against W. S. Schlossburg in assumpsit and conversion. From a judgment for plaintiff, defendant appeals. The trial was • by the court without the intervention of a jury.

P. Heflin, Judge. • ■ James Bailum was convicted of manslaughter in the second degree, and he appeals. While testifying the witness Mrs. A. C. Smith stated that the little girl had made her escape from the truck, and this evidence is told in narrative form in the record. The court excluded it as a conclusion.

<p>1. .Jury <&wkey;316 — Venire not Quashed 'Because of Irregular Opening of Jury Box.</p> <p>Under Acts 1909, p. 305, § 23, providing that no objection to an indictment on grounds ■ going to the formation of the grand jury can be taken except by plea in abatement on the ground that the jurors were not drawn by the officer designated by law, and section 29, providing that no objection can be taken to any venire except for fraud in drawing or summoning the jurors, it was not a ground for quashing the venire that the jury box had been opened (apparently in another division of the court) and the tickets counted and examined and a list of the names made and the box sealed by seals bearing the name of one not authorized to seal it, though such opening, etc., was irregular.</p> <p>2. Robbery <&wkey;26 — Evidence held to make Question for Jury.</p> <p>Evidence -on a trial for robbery held to make a case for the jury and to justify the refusal of affirmative charges for defendant.</p> <p>3. Criminal Law <&wkey;814(20) — Instructions as to Included Offenses Properly Refused as Abstract when Evidence would not Warrant Verdict for such Offenses.</p> <p>Where, under the evidence, defendant was either guilty of robbery as charged, or not guilty, and there was no evidence upon which to predicate a verdict of included offenses, requested charges as to such offenses were properly refused as abstract.</p> <p>4. Jury &wkey;>71 — Striking of Jury by Judge on Defendant’s Refusal not Error.</p> <p>Where defendant refused to strike the number of jurors allowed him, the action of the court in striking the jury for him in strict compliance with Acts 1919, p. 1039, § 32, was not error.</p> <p>5. Criminal Law <&wkey;266 — Plea of not Guilty Properly Entered when Defendant Refused oe Neglected to Plead,</p> <p>Under the express provisions of Code 1907, § 7565, the court properly caused a plea of' not guilty to be entered for defendant, where he refused or neglected to plead.</p> <p>i&^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge. Suit by Joe Thomas against the Alabama Great Southern Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Dallas County; B. M. Miller, Judge. Lonnie Atkins was convicted of</p> <p>crime, and he appeals.</p>

<p>Appeal from Circuit Court, Mobile County; Saffold Berney, Judge; Proceeding between Theodore Bruley and the State. From a decision in favor of the State, Bruley appeals.</p>

J. Curtiss, Judge. Action for damages to land, by pollution of stream, by L. H. Wright and others against the Corona Coal Company. From a judgment for plaintiffs, defendant appeals.

<p>Appeal from Circuit Court, Marion County; C. P. Almon, Judge.</p>

<p>Appeal from Circuit Court, Pike County; A. B. Poster, Judge. Goliah Cox was convicted of grand larceny, and he appeals.</p>

<p>Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge. Harry Chester Pay, alias Allen P. Hill, was convicted of living with a woman in a state of adultery or fornication, and he appeals.</p>

<p>Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge. Frank Parley was convicted of crime, and he appeals.</p>

<p>Appeal from Circuit Court, Cullman County; O. Kyle, Judge. Frank Gay was convicted of manufacturing spirituous liquors, and he appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; F. Loyd Tate, Judge. Annie Amelia Foster was convicted of assault with intent to murder, and she appeals.</p>

<p>Ap.peal from Circuit Court, Jefferson County; 'F. Loyd Tate, Judge. Jesse James Hickson was convicted of burglary, and he appeals.</p>

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge. Arthur Greil was convicted of grand larceny, and appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; Charles W. Ferguson, Judge. William McKinley Grissett was convicted of murder in the second degree, and he appeals.</p>

<p>Appeal from Circuit Court, Barbour County; J. S. Williams, Judge. Tobe Jackson and others stand indicted by the grand jury of Barbour county on a charge of murder' in the first degree. Petition was filed for writ of habeas corpus, praying that the defendants be allowed bail pending their trial. From an order denying bail, petitioners appeal.</p> <p>Counsel discuss the evidence, and insist that it would not justify a. conviction of the highest offense, and hence that the defendants were entitled to bail under section 16, Const. 1901. In support of their contention they cite 34 Ala. 270; 63 Ala. '234; 78 Ala. 414; 95 Ala. 22, 11 South. 14; 11 Ala. App. 70, 65 South. 857.</p> <p>The court trying the case heard the witnesses, and his judgment will not be disturbed, unless clearly erroneous. 5 Ala. App. 271, 50 South. 313; 1 Ala. App. 265, 56 South. 20; 158 Ala. 216, 48 South. 391; 53 Ala. 498; 58 Ala.. 275; 55 Ala. 250; 95 Ala. 22, 11 South. 14. Under these authorities and under the evidence in this case the court rendered the px-oper judgment in denying bail.</p>

<p>Appeal from Circuit Court, Lawrence County; C. P. Almon, Judge. Will McDonald was indicted for murder in the first degree, and upon a trial was convicted of murder in the second degree, and sentenced to a term of 10 years in the penitentiary. From the judgment of conviction he appeals.</p>

<p>Appeal from Circuit Court, Marion County; C. P. Almon, Judge. George Peoples was convicted of a crime, and he appeals.</p>

<p>Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge. Elbert Robertson was convicted of violating the prohibition law, and he appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; F. Loyd Tate, Judge. Sam Ray was convicted of grand larceny, and he appeals.</p>

Brickell, Judge. Christo Robinson was convicted of violating the prohibition laws and appeals. The appeal is from the denial of a motion for new trial because the verdict was contrary to the great weight of the evidence. This is authorized by Acts 1915, p. 722. A careful review of the evidence discloses the fact that there was an absence of evidence showing a sale, and hence no basis for the verdict of the jury.

<p>Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge. Fred Schaffer was convicted in the inferior criminal court of Mobile county of violating the prohibition law, and, having been again convicted on appeal to the circuit court, he appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; H. C. Wilkinson, Judge.</p>