Volume 170 — Alabama Reports

Heard, before Hon. Armstead Brown. Jim White was convicted of bastardy and he appeals. In bastardy proceedings it is sufficient to show the guilt of the accused to the reasonable satisfaction of the jury. — JaisIo v. The State, 129 Ala. 1; Miller v. The State, 110 Ala. 69; 5 Cyc. 664.

Heard, before Hon. S'. L. Weaves. George Woodruff was convicted of trespass after warning and be appeals. The affidavit was defective and demurrer to same should have been sustained. In order to sustain a conviction the evidence must show that the party giving the warning was in actual possession or the agent or representative of the person in actual possession. — Matthews v. The State, 81 Ala. 66; Sewell v. The State, 82 Ala. 57.

<p> Assault With Intent to Murder. </p> <p>1. Evidence; lies Gestae; Assaults. — Where a prosecution is for an assault with intent to murder the condition of the assaulted parts7 resulting from the assault is admissible as of the res gestae.</p> <p>2. Same; Expert; Distance. — Where the question of the distance between defendant and prosecutor at the time of the shooting was in issue, it was competent for a gun expert to testify as to powder burns, the character of the shells and the manner in which shot would scatter within a given distance.</p> <p>3. Trial; Evidence; Objection. — Under rule 33, the objection to the question on the ground that it is illegal is not sufficient to present error in the overruling of such objection since it is not specific.</p> <p>4. Qlvvrge of Oourt; Invading Province of Jury. — A charge asserting that if the jury concluded that the prosecutor was reaching for a gun in the hands of his daughter and was near enough to her to get the gun, and the defendant was free from fault in bringing on the difficulty, and had no reasonable mode of escape without increasing his danger, then defendant was entitled to stand his ground even to the taking of the prosecutor’s life if necessary, assumes that the defendant was entitled to stand his ground on the facts therein hypothesized., and was objectionable, since it was for the jury to determine whether or not he was in imminent peril at the time.</p> <p>5. Samo; Reasonable Doubt. — A charge asserting that the jury could not convict the accused if there was a single juror who was not fully satisfied beyond a reasonable doubt of the guilt of the defendant as charged in the indictment, was properly refused for pretermitting a conviction for the lesser offenses thereing charged.</p> <p>6. Homicide; Assault With Intent to Murder; Evidence. — It is competent to show the character of the wound resulting from the assault charged to show intent.</p> <p>7. Same. — As the character of the wound resulting from an assault is competent evidence on the question of intent, it is not error to limit such evidence to the issue of the fierceness of the attack.</p>

Heard before Hon. Armstead Brown. Mac McCoy was conviced of murder, and appeals. Defendant was charged with killing one Speigel. There was evidence tending to show that defendant was the man who fired the pistol that killed the deceased, and that there were others with him. The defense was an alibi.

Heard before Hon. O. J. Semmes. John Bell, alias, was convicted of murder and he appeals. The following charges were refused to the defendant: (2) “The only foundation for a verdict of guilty in this case is that the entire jury shall believe from the evidence beyond a reasonable doubt and to a moral certainty that the defendant is guilty as charged in the indictment, to the exclusion of every probability of his innocence and every reasonable doubt of his guilt.

Heard before Hon. Armstead Brown. John Bradberry was convicted of murder and he appeals. Under the facts in this case the defendant was not guilty of murder of the deceased. — 1 McLean on Criminal Law, Sec. 326; G-olliher v. Gomononwealth, 87 Am. Dec. 493. The court erred in refusing charge 17. — Stone-Icing v. The State., 118 Ala. 68; Aúams v. The State, 13á Ala. 166; Hunt v. The State, 135 Ala. 1; Compton v. The State, 110 Ala. 24.

<p> Manslaughter. </p> <p>Homicide; Second Degree Manslaughter; Punishment. — One convicted of manslaughter in the second degree is entitled to have the jury fix the punishment as, the provisions of section 7092, construed in connection with section 7623, (both code 1907) requires that the jury fix the punishment and not the court.</p>

Heard before Hon. John T. Lackland. Cora Hutcheson was convicted of murder, and appeals. The facts are that Cora Hutcheson’s husband was kilied, that the killing took place in the home of the deceased and the defendant, and that death resulted from a gunshot wound fired by the defendant.

Heard before Hon. T. L. Sowell. Tom Wade was convicted of violating tlie prohibition law and he appeals. Counsel discuss the demurrers to the affidavit and cite authorities in support of their contention, but in view of what is said in the opinion it is not deemed necessary to here set them out. The court erred in overruling the motion to exclude the testimony of Jack Lambert, as it showed no sale. — 86 Ala. 288.

Heard before Hon. William E. Fort. Henry Cain was convicted of selling intoxicating liquor without a license, and be appeals.

Heard, before Hon. S. L. Brewer. John Lester was convicted of violating tbe prohibition law and be appeals. Tbe court did not err in admitting tbe confession as it was sliown that it was voluntary. — Spicer v. The State, 69 Ala. 157; Dodson v. The State, 68 Ala. 208.

Heard before Hon. William Jackson. Matt Sapp was convicted of a violation of the liquor law, and he appeals.

Heard before Hon. Armstead Brown. Proceedings by tbe state of Alabama against W. J. Toole, for the condemnation of intoxicating liquors. Judgment for ¡lie state and the claimant of the liquors appeals. The warrant was not made returnable to the proper tribunal, and hence, was subject to motion to quash. — Holberg M. Go. v. The State, 48 So. 620. The warrant fails to describe the place with certainty, which was to be searched. — State v. Duane, 100 Me. 447.

Heard before Hon. W. H. Lindsev. Will Campbell was convicted of violating the stock law and he appeals. The charge for the state-was faulty in that it was not predicated upon the belief of the evidence beyond a reasonable doubt. The stock law district was not properly established. — Acts 1900-1, p. 2066; Flowers v. Gramt, 129 Ala. 275; 68 Ala. 129.

Heard before Hon. O. J. Semmes. Burwell Boykin Boone was convicted of acting as attorney for a public utility corporation, while holding a municipal office, in violation of statute, and be appeals.

Heard before Hon. John T. Lackland. Newton F'owler was convicted of larceny and he appeals. Counsel discuss the appli cation for a continuance and conclude that under the facts in this case, a great abuse of discretion was disclosed. The court erred in admitting the conversation between the prosecuting witness and the defendant, and in admitting the note for $22.00. The court erred in refusing charge 1. — 1 Mayf. 202.

Heard before Hon. William Jackson. James Pulton was indicted under two separate indictments for violating the prohibition laws and brings the two judgments of conviction up in the same record. Counsel discuss the assignments of error as shown by the record, and cites authority in support of his contention, but does not discuss the question decided.

Heard before Hon. W. W. Pears'qn. Mark Young was convicted of selling property upon which another had a lien or claim, and he appeals.

Heard before Hon. H. A. Pearce. Will Janies was convicted of malicious injury to an animal and be appeals. Appellant concedes that under tbe case of State v; Thomas, 52 Sou. 34, tbe indictment was sufficient. Tbe court erred in permitting it to be shown bow long after tbe injury before tbe owner was able to use tbe milk of tbe cow.

Heard before Hon. A. H. Alston. Riley Vickers appeals from a conviction of assault. The judgment of conviction should be reversed and remanded upon the following authorities: Parish v. The State, 139 Ala. 51; Taylor v. The State, 121 Ala. 24.

Heard before Hon. J. N. Ham.. George Jones was convicted of interfering with a laborer under written contract to serve another, and he appeals. No brief reached the Reporter.

Heard before Hob. W. W. Pearson. John Turner was convicted for failure to work the public road after due notice, and he appeals. The court erred in permitting the state to introduce, the minutes of the Board of Revenue showing the election of Dera-mus as overseer. The authority to appoint overseers and to fill vacancies is not in the Board of Revenue but in the apportioned. — Sec. 5780 and 5782, Code 1907.

Heard before Hon. M. Sollie. Ike Lindsey was convicted of burglary and he appeals. Tbe corroborative facts and circumstances introduced were not sufficient to authorize a conviction upon the testimony of the accomplice in this case. — 12 Oyc. 456, 7, 9, and 55 ; Marler v. The State, 67 Ala. 55; Smith v. The State, 59 Ala. 104.

Heard before Hon. T. L. Borum. Robert Cbancey was convicted for failure to perform road duty after warning, under the local law for Pike county, and he appeals. No brief reached the Reporter.

Heard before Hon. S. L. Weaver. John Woodson was convicted of rape, and he appeals. The evidence is all set out in the bill of exceptions, and no offense is disclosed thereby. None of the requisites of the offense charged is made out. — Jacobi v. The State, 133 Ala. 8; Jones v. The Btcvbe, 90 Ala. 628; Norris v. The State, 87 Ala. 85; Lewis v. The State, 35 Ala. 380; Toulet v. The State, 100 Ala. 72.

Heard before Hon. A. E. Gamble. Cleveland Toles was convicted of assault with intent tó rape, and he appeals. The court erred in the admission vof evidence objected to, and in refusing the requested charges. — Thomas v. The State, 133 Ala. 139; Hunter v. The State, 112 Ala. 9; MeAnnially v. The State, 74 Ala. 77; Bushy v. The State, 77 Ala. 66; 1 Mayfield, 333.

<p> Adultery. </p> <p>Adultery; Evidence; Corrohoration. — On a trial for adultery with a certain woman, it was competent to show that at that time she was pregnant as tending to show that she and the defendant had be^p having illicit intercourse.</p>

Heard before Hon. W. H. Simpson. P'etition by Fayette Palmer for writ of habeas corpus. From an order denying the writ, he appeals.

Heard before Hon. Alex 0. Edmonson. ITin Adams was convicted in the Recorder’s Court of the City of Trov, fined $100.00 and costs, and sentenced to an additional term of 180 days, hard labor for the city, and he brings habeas corpus for his discharge. Prom an order denying the prayer of the petition, petitioner appeals.

Heard before Hon. Alex C. Edmonson. Habeas corpus by Willie, alias, Gay Hurd, addressed to tlie City of Troy. From a judgment denying the prayer of the petition an. attempted appeal is taken. Cause stricken from the docket. Counsel discuss matters supposed to be shown by the appeal with citation of authority, hut does not discuss any of the questions decided.

<p> Certiorari. </p> <p>Courts; Jurisdiction,.- — A petition for certiorari to review an order of the probate court revoking the appointment of petitioner as administrator of the decedent’s estate should be made to the circuit court in the first instance and not to the Supreme Court.</p> <p>(McClellan, Sayre and Evans, JJ., dissenting.)</p>

Appeal front St. Clair Circuit Court. Heard before Hon. J. A. W. Smith, Special Judge. Ejectment by W. A. Savage against Martha B. Mi-lum. Judgment for defendant and plaintiff appeals. The deed, was absolutely void under the statute of frauds. -^Sec. 4293, Code 1907. The plaintiff claimed under a sheriff’s deed and the recitals of the deeds from Mylum to his Avife, were not evidence as against the plaintiff.

Heard, before Hon. S. L. Brewer. Ejectment by Lula Emma Harrelson and others against Harriet Harper. From a judgment for defendant, plaintiffs appeal. The description contained in the deed from G-.

Heard before Hon. John W. Inzer. Ejectment by Joe S. Moragne against the city of Gadsden, for a plot of ground alleged to have been dedicated to the city as a park or common. Judgment for defendant and plaintiff appeals. The plaintiff having shown a prima facie right to recover, the obligation passed to the defendant to carry the burden of showing the dedication or adverse possession. — Warrior R. 0. & Go-, v. Ala. St. L. Go., 154 Ala. 141.

Heard before Hon. Sapfold Berney. Action by Thomas F. Stickney in trespass and trover for cutting and removing trees brought against Robert Lyons and others, following a recovery by* Stickney, against them in ejectment. Judgment for plaintiff and defendant's appeal. The recovery in ejectment is not evidence of possession or the right to possession beyond or back of (in statutory ejectment) the bringing of the suit. — Henry v. Davies, 149 Ala. 357; 11 Am. Dec. 196; 6 Am.

Heard before Hon. John T. Lackland. Ejectment by Ben Williams against Will Williams and another. Judgment for defendant and plaintiff appeals. It was competent for the plaintiff to show the agreement between the heirs and. the widow for the occupation by her of the land during her life. — Foy v. Welborn, 112 Ala. 160; Lucy v. R. R. Go., 92 Ala. 417; see 72 Ala. 541; 66 Ala. 516; 65 Ala. 260.

Heard before Hon. Thomas W. Wert. Certiorari on behalf of John L. Brock directed to the city of Decatur to review the action of said city in making street improvements and assessments therefor. The trial court granted the writ and on the hearing quashed the proceedings, and the city brings this appeal. The act is not unconstitutional as a deprivation of property without due process of law. — 7 Page & Jones, 141; 2 Page & Jones, 747; 76 Am.

Mobile Law and Equity Court. Heard before Hou. Saffold Berney. Petition by N. Fellis & Company for a common law writ of certiorari to review tbe action of F. T. Perkins in rendering a judgment against petitioner and in favor of respondent. From a judgment denying petition and quasbing tbe writ, petitioner appeals. Tbe writ should bave been granted on tbe averments of tbe petition.— Blmlte v. Wilke, 52 So. 526; Beach v. Lavender, 138 Ala. 456.

Appeal frm Birmingham City Court. Heard before Hon. H. A. Sharpe. Common-law certiorari on the petition of Blanche Bernard against Evelyn Fleming to review a judgment. From a judgment declining to quash the judgment on certiorari, petitioner appeals. As originally filed the complaint claimed for a trunk and contents. Before judgment the complaint was amended, setting out the contents of the trunk.

Heard before Hon. A. E. Gamble. Quo warranto by the State oí Alabama on the relation of William H. Thomas, to test the right of the respondent Gunter, to hold the office of judge of the Montgomery City Court. From a judgment denying the writ relator appeals. Relator insists that the Act of 1907 is wholly invalid, and that respondent’s claim is, therefore, void.

•Appeal from Mobile City Court. Heard before Hon. O. J. Semmes. Mandamus by the State on the relation of the Attorney General against J. E. Alford, Judge, to require him-to restore certain, cases to Ms docket which had been transferred by his order to the city court and to require him to proceed to try such cases without a jury. From a judgment granting the writ respondent appeals. The facts are sufficiently set out in the opinion of the court.

Heard before Hon. William H. Thomas. E. it: Franklin recovered judgment against N. B. Comer, and levied execution on certain lots alleged to belong to Comer.

Heard before Hon. James J. Ray. Goodbar & Company recovered judgment against L. B. McNamee, and bad the same recorded in Winston county. The judgment contained waiver of exemptions. Execution was issued on said judgment and levied upon certain goods and merchandise, which were claimed by S. K. Blackwell under purchase from said McNamee. On trial of right of property, the court directed a verdict for claimant and the plaintiff in execution appeals.

Appal from Mobile City Court. Heard before Hon. O. J. Semites.

<p> Bill to Quiet Title. </p> <p>1. Evidence; Ancient Documents; Authentication. — In connection with proof of actual possession by the present owner, or his predecessor in title under the deed, a deed thirty, years old, coming from the proper custody, without any marks of suspicion attaching to it, is .admissible in evidence under the'rule as to ancient ■ documents, especially where it is shown that the grantee and those claiming under him have looked after the land conveyed by the deed, and paid taxes bn it.</p> <p>2.- Sam,e; Validity. — The evidence must be' clear, satisfying and convincing to show that it was signed in blank, in order to overcome the presumption of the due execution and genuineness of a deed over thirty years old, regular on its face. In this case, the evidence is examined and held insufficient to overcome such presumption.</p> <p>8. Deeds; Requisites: Description of Parties. — Although the body of the deed should show who are the grantors, the renuirement is met, if, from the deed in its entirety, enough is_ shown from which, by the aid of extrinsic evidence, the names of the grantors can be made certain.</p> <p>4. Same. — Where a deed named a widow and her heirs as the ' grantors the word “heirs” will be taken as meaning children, and the deed held sufficient as against the objection that the grantors are not named in the body of the deed.</p> <p>5: JPushaMd and Wife; Conveyances ~by; Estoppel to Deny Valid* ity. — Although the doctrine of estoppel does not operate against a married woman where she conveys land without her husband joining as required by the statute, yet, where a woman, before her marriage, participates in the sale of land and in the proceeds arising therefrom, her subsequent marriage and execution of a deed thereto without her husband joining cannot save her from an estoppel already operative against her.</p> <p>6. Vendor and Piorchaser; Bona Fide Purchaser; G-ood Faith.— Where one seeks not to buy land, but to buy whatever claim the seller might have in the land, and tells the seller that whatever he pays for his claim is just .that much picked up by him, and thereupon pays $112.50 for the same, although telling them that he had rather pay $6,400.00, and buy the land straight, and who procures deeds expecting at the time to bring suit against a former grantee, is not a purchaser for value without notice.</p> <p>7. Quietmg Title; Proceedings; Judgment. — Where a bill to quiet title containing all the essential averments is filed under the statute, and the answer specifically sets forth the defendant’s title and claim, and the manner and sources through which it was derived, the bill should not be dismissed, although the complainant is not in possession, since under section 5446, Code 1907, the defendant is entitled to have his title and claim determined by the decree of the court.</p> <p>8. Same; Cross Bill; Possession Toy the Defendant. — A cross bill is necessary to a defendant in a statutory bill to quiet title, if the defendant desires affirmative relief; possession is not necessary to sustain such cross bill, since a court of equity retains jurisdiction for all purposes necessary to a final determination of the controversy.</p>

<p>Appeal from St. Clair Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p> <p>Bill by D. A. Stewart against James R. Coleman, for partition. Decree for complainant and respondent appeals.</p> <p>Complainant showed no muniment of title or color of title in Amos Stewart but only a naked possession of an indefinite portion of the land, his possession will be presumed to have been in subordination of the true owners.-A ie®-ander v. Wheeler, 69 Ala. 832; Lude v. Tenn. Go., 92 Ala. 246. In the evidence in this case Coleman has shown title in himself to the entire tract. — Draper v. Scott, 25 Mo. 197. Adverse possession was shown.— &oodson v. Brothers, 111 Ala. 549; 1 Cyc. 98, and notes. Coleman’s claim of title and open possession had continued for twenty years, and every one else was barred. —S'ecs. 4834-4836; 98 Ala. 543; 81 Ala. 384; 72 Ala. 389; 54 Ala. 552.</p> <p>While possession may be abandoned, there can be no abandonment of title.— T. O. I. & B. R. Go. v. Lynn, 123 Ala. 102; Ross v. Qoodwyn, 88 Ala. 390; Arnold v. Stephens, 35 Am. Dec. 309; Doe v. Butler, 3 Wend. 149. There are two reasons why Coleman never acquired title by adverse possession. 1st, he never actually occupied the land, was never in actual possession of iD — A. S. L. Go. v. McCullough, 155 Ala. 246; McDaniel v. T. G. é I. Go., 153 Ala. 593; Alder v. Prestwood,122 Ala. 367; Howell v. Henry, 157 Ala. 43. The evidence does not show an adverse possession of ten years. — Test v. Miche, 31 Am. Rep. 723. One judgment in an ejectment suit is not an estoppel against the complainant. — Qibson v. Lyon, 115 U. S. 439; Sec. 3538, Code 1907; Marshall v. Groom, 60 Ala. 121.</p>

<p> Bill to Foreclose Mortgage. </p> <p>1. Equity ; 'Pleading ; Multifariousnessi — Pending a bill to foreclose a mortgage the parties entered into an agreement by which the respondents were to execute a deed to a trustee for complainant, to the property mortgaged, the deed to be deposited in escrow to be delivered to complainant in payment of the mortgage, should the respondents fail to pay the amount agreed upon by a named date, in which event, complainants were to be entitled to a decree of strict foreclosure ; it being further agreed that should the respondent pay the amount of the mortgage debt by the time stipulated, the bill should be dismissed and the mortgage and notes surrendered. Respondents failed to make the payment and complainants filed an amended bill setting up the agreement and the default, and praying that the agreement be carried out, and a decree of strict foreclosure entered, or if not entitled to that relief, that the mortgage should be foreclosed as prayed in the original bill. Held, that under the provisions of section 3095, Code 1907, the amended bill was not demur-rable for multifariousness.</p> <p>2. Same; Amendment. — Pending a bill to foreclose a mortgage the interest of one of the complainants was transferred,, and thereafter the respondents agreed with the transferee, and the other complainants to execute a deed to the property mortgaged to a trustee for complainant, and deposit tbe same in escrow to be delivered to complainant upon the failure of respondents to pay an amount agreed upon at a stipulated time, with the further agreement that should the payments be made as agreed, the suit should be dismissed and the notes and mortgages delivered up, but if default should be made, complainant should be entitled to have a decree of strict foreclosure. The respondents failed to make the payment. Held, the court had the power to enforce the agreement under an amended or supplemental bill.</p>

<p> Bill for an Accounting. </p> <p>1. Account; Bill for Accounting; Sufficiency. — Where the bill for an accounting made no specific allegation of error as to particular items of an account rendered, and no charges of fraud, sufficient to authorize a court of equity to open any one of the accounts stated between the parties in its entirety, such bill is properly dismissed.</p> <p>2. Accounts Stated; Effect; Oonclusiveness. — Where there is no proof of fraud or specific error, proof and allegation, found alike in the bill and answer, that the several accounts had been stated between the parties, is a perfect answer to a bill for an accounting.</p>

<p>Appeal from Autauga Chancery Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Bill by parties composing the firm of J. H. McDaniel & Son, against J. W. Martin, and F. E. Pulsifer, composing the firm of Martin & Pulsifer, and others, to set aside a certain conveyance as a fraud' on creditors. Prom a decree for complainants respondents appeal.</p> <p>' A voluntary conveyance is fraudulent and void as to existing creditors per se whether solvent or insolvent.—Anderson v. Anderson, 64 Ala. 403; Henderson v. Farley N. Bank, 26 So. 226; Wood v. Potts, 140 Ala. 425; 20 Cyc. 511. But where the conveyance is upon a valuable consideration it must not only be made with fraudulent intent, but the grantee must have had notice of such intent or facts sufficient to charge him with notice or must have participated in the fraud.—Coleman v. Smith, 55 Ala. 368; Marshall v. Croom, 60 Ala. 211; Carter v. O’Brien, 16 So. 897; Simmons v. Shelton, 21 So. 309; 20 Ctc. 465. When the grantee shows a valuable and adequate consideration, the burden shifts to the creditors to show fraudulent intent on •the part of the grantor, and knowledge or notice thereof, or participation therein on the part of the grantee.—Moog v. Farley, 76 Ala. 246; Bank v. McDonald, 98 Ala. 434. The vendee is not limited in proof to the identical consideration set out.—Biller v. Rowna, 108 Ala. 99. Fraud is never presumed.—Harold v. Mitchell, 61 Ala. 270. Relationship is not even a badge of fraud.—Marks v. Lienkauf, 92 Ala. 453; Smith v. Collins, 94 Ala. 394. This is a case of sufficient allegation, but totally insufficient proof.</p> <p>The court.can only look to the legal evidence and the bond for title is not competent because not set up in the answer. — Robinson v. Mos'eley, 93 Ala. 70; Barrow v. Moog, 101 Ala. 209. Equity will protect to the extent of the part of the consideration paid before notice of the fraud but not for any payments made thereafter. — 14 A. & E. Enc. of Law, 293; Thames v. Rembert, 63 Ala. 561; Simmons v. Shelton, 112 Ala. 284; Florence S. M. Go. v. Zeigler, 58 Ala. 221. .Bond for title being eliminated, the deed was presumptively fraudulent. — Russell v. Davis, supra; Murray v. Hurd, 103 Ala. 400. The burden to show bona fide consideration being upon the respondent, and the degree of relationship' being such as it is, the evidence should be very closely scrutinized. — Murphy v. Green, 128 Ala. 486; Gordon v. Mcllwain•, 82 Ala. 246; Hubbard v. Allen, 59 Ala. 83. On the question of what is constructive notice, attention is called to the following cases: Lehman & Durr v. Kelly, 68 Ala. 192; Sheally v. Edwards, 75 Ala. 411; Smith v. Kauffman, 100 Ala. 408; 14 A. & E. Enc. of Law, 290.</p>

<p> Bill to Remove Obstruction Across a> Road. </p> <p>1. Highways; Establishment; Obstruction; Evidence. — In determining whether a road is considered a public road and whether it was obstructed the fact of the erection of the fence across the road with a gate therein is proper for consideration, since the fence even with the gate constituted an obstruction.</p> <p>2. Same; Establishment; Prescription. — While the doctrine of prescription applies to the establishment of public roads, it must be shown in addition to continuous user for twenty years, that the use was a matter of right and not merely permissive, since mere user without proof that it was adverse under a claim of right is not sufficient.</p> <p>3. Same; Evidence; Sufficiency. — The evidence in this ease stated and examined and held consistent with a permissive user and therefore, not to show the adverse use of the road by the public, so as to make it a public highway by prescription.</p> <p>4. Dedication; Evidence. — The mere use of a-road without proof tending to show that the use was adverse under a claim of right does not raise a presumption of dedication.</p>

<p>Appeal from Washington Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Bill by C. Eugene Harrell against Quibus Mason and others for partition. From a decree for defendants on demurrer to the complaint, complainant appeals.</p> <p>The facts made by the bill are that complainant is the owner of a certain timber interest on an undivided one-third of the land therein described, setting forth a description of the land, together with the interest of each of the respondents and complainant in the land. It it further alleged that one Spear has a judgment against Jeff Mason, which is recorded, and that he is a necessary party to the bill of complaint. It is then alleged that the land cannot be equitably divided. The amendment strikes out the last paragraph above referred to, asserting that the lands cannot be divided equitably or by partition between the joint owners, and substitutes for the prayer for relief the following prayer: “That the land be partitioned and divided among the joint owners thereof in an equitable manner, in order that orator may have the right to enjoy the use of the timber purchased by him, in the event it cannot be done equitably, that a sale be decreed.” A later amendment is by striking out in their entirety all amendments to the bill herein made. The exhibit to the bill is a deed made by Quibus Mason to C. E. Harrell,, which conveys a one-third interest, undivided, in all trees of every class and all timber now standing or down or growing upon the lands described in the bill, with the right during seven years from the date of this instrument to do all things necessary for the purpose of removing the timber from the laud, and for other purposes necessary thereto. The demurrers raise the proposition that the only interest shown in the complainant is a timber interest, that he has no interest in the land, and therefore cannot maintain a bill for partition.</p> <p>The party purchasing timber growing on lands purchases an interest in the land as distinguished from an interest in the trees considered as chattels, — Heflin v. Bingham», 56 Ala. 574; Rogers v. Brooks, 99 Ala. 31; Magnetic 0. Go. v. Marbury L. Go•., 104 Ala. 465; Rothchilds v. Bay Gity L. Go., 189 Ala. 571; Zimmlerman v. Daffin, 149 Ala. 389; Davis v. Miller-Brent, 44 So. 641. Complainant is entitled to maintain this bill. — Brown v. Hunter, 121 Ala. 213; Sec. 5222, Code 1907; 11 L. R. A. 278; 22 L. R. A. 641. If the partition cannot be had by meets and bounds, then the sale for division should be had.— Berry v. T. ■& G. R. R. Go., 134 Ala. 622; Garrett S. & D. Go. v. Watts, 140 Ala. 449; Fitts v. Graddock, 144 Ala. 438; Gram-ton v. Rutledge, 157 Ala. 150.</p> <p>No brief came to the Reporter.</p>

Heard, before Hon. Thomas H. Smith. Bill by the McClure Lumber Company and others against Fred J. Jordan and others, to quiet title to land. From a decree for complainants, respondents appeal.

Thomas H. Smith. Bill by Chester G. White and others against William H. Cotner, to qniet title to land. From a decree sustaining demurrer to the bill complainant appeals. Cotner was a necessary party. — Teal v. Chancellor, 117 Ala. 612; Jtensford v. Magnus & Co-., 150 Ala. 288. The bill is unlike the one in Slosson v. McNulty, 125 Ala. 124.

Heard before Hon. L. D. Gardner. Bill by Annie T. Lee and husband against R. D. Reynolds to redeem from mortgage foreclosure. Decree for respondents and complainant appeals. No question of law is involved in this case, but the appeal is from a decision on the facts, no presumption is indulged in favor of the chancellor. Counsel discuss the evidence, and from it conclude that the court erred in holding that there was no usury in the note.

Heard before Hon. L. D. Gardner. Bill by J. TV. Watson against P. E. Greer and others, to reform a mortgage. From a decree overruling demurrer to the bill, respondents appeal.

Heard before Hon. Sapfold Berney. A bill for divorce by Grace St. John McMahon against William Otis McMahon. Prom a decree for complainant respondent appeals. The allegations as to habitual drunkenness and as to cruelty were too general, and were mere conclusions, and this rendered the bill subject to the demurrer interposed. — 14 Cyc. 700; Batchelder v. Batchelder, 14 N. H. 380. A pleader is under no duty to deny mere legal conclusion.

<p>Appeal from Mobile Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Bill by Malazie M. Palliser against the Home Telephone Company. From a decree dismissing the bill complainant appeals.</p> <p>Appellant assigns as error the decree made May 10th, in that, by that decree appellant was not allowed to take testimony; and also assigns as error, the previous interlocutory order of April 20th, overruling appellant’s var cation application for extension of time to take testi-money, and cite the following in support of siicb assignment: 20 Enc. PI. & Pr. 607, 657; Prestwood v. Watson, 111 Ala. 604; see rule 14, Code, page 1520; Collier v. Fallo, 66 Ala. 229. Being under the supervision of the court, agreements may be relieved against when for any reason they are improper. — 20 Enc. PL & Pr. 607, 657; Haney v. Thorpe. 28 Ala. 250. Stipulations may be set aside when enforcement would work inconvenience or injustice. — Hancock v. Wiivans. 20 Tex. 324. Or when enforcement, would result in serious injury to one party while the other would not be prejudiced by setting aside — the exact case at bar. — McClure v. Sheek, 68 Tex. 426; 20 Enc. PL & Pr. 644, notes. They usually relate to time or method of trial, and, as evidence, the ruling of the lower court is somewhat like its ruling upon a deposition. The ruling is revised by the Supreme Court on appeal from the final decree by assigning error as upon action of the lower court just as on suppressing depositions leading to the judgment or decree. — Fw parte Hayes, 92 Ala. 120, 124.</p> <p>In support of the contention that the appellant was not entitled to further indulgence, appellee cites the following cases: Harold v. Mitchell, 61 Ala. 270; Nunn v. Nunn, 66 Ala. 38; Cordon v. Tweedy, 74 Ala. 236; Dixon v. Higgins, Rule 75, C. O. Pr.</p>

<p>Appeal from Walker Law and Equity Court.</p> <p>Heard before Hon. T. L. Sowell.</p> <p>Rill by the Black Warrior Ooal Company against Milly West and others, to quiet title to mineral interests in certain lands. Decree for respondents and complainant appeals.</p> <p>Under the facts in this case the presumption will be indulged in to sustain complainant’s title. It was not necessary that the contents be more accurately shown as the conveyance was made more than forty years ago. — Clements v. Cox, 116 Ala. 567; Norment v. Eureka Go., 98 Ala. 187; Wilson v. Holt, 83 Ala. 546; Long v. Palmer, 81 Ala. 384; McArthur v. Garry, 32 Ala. 76. The defendant is not only estopped from asserting’ title to the land, but her demand is stale, and the court Avill refuse to enforce her asserted right. — Woodstock v. Roberts, 87 Ala. 439; Black v. P. C. cG C. Co., 85 Ala. 511; Jefferson v. Pettus, 132 Ala. 671; Harrison v. Heflin, 54 Ala. 552; McCartney v. Bore, 40 Ala. 536; Garrett v. Garrett, 69 Ala. 429; McArthur v. Coomils, 32 Ala. 75; Martin v. Keeley, 132 Ala. 201; Nettles v. Nettles, 67 Ala. 601; Johnson v. Johnson, 5 Ala. 90; Brackin v. Newman, 121 Ala. 311. Under the facts in this case there was a privity of estate between appellant and Garner, that of grant- or and grantee, and Garner’s adverse possession of the surface was the adverse possession of the minerals in favor of his grantee. — McBurney v. G. C. <& C. Co., 118 S. W. 694; Yancey v. 8. & W. R. R. Co., 101 Ala. 238; Abbott v. Page, 92 Ala. 574. The fact of severance can be material only when the true owner claims thereunder, and when the true owner does not claim under the statute, it can play no part save as mere evidence of intention when pertinent. — L. S N. v. Massey, 136 Ala. 156. The theory upon which adverse possession becomes a perfect title is that the true owner by his own fault has failed to assert his right against the hostile holding for the full period of the statute. — Lecroix v. Malone, 157 Ala. 441. Notice of such holding must be actual, or the holding must be so open and notorious as to raise the presumption of notice. — Eureka Go. v. Norment, 104 Ala. 631. Where such possession has been established it can be broken in only one of two ways. — Hughes v. Anderson, 79 Ala. 215; Norment v. Eureka Go., supra. Possession of the landlord and his tenant, of an ancestor and his heirs, or of a vendor and his vendee, may be tacked to complete the bar. — Riggs ■o. Fuller, 54 Ala. 141. We submit, therefore, that the evidence shows that the title of appellee to the minerals and the surface is barred by adverse possession.</p> <p>The evidence failed to establish title in the complainant, as the deeds under which it claimed were not produced and no sufficient evidence for the introduction of secondary evidence was brought. — King v. Scheuer, 105 Ala. 560; Ech-ols v. Hubbard, 90 Ala. 313; Potts v. Coleman, 86 Ala. 101; Elyton L. Oo. v. Denny, 108 Ala. 561. When minerals are severed from the surface by deed, possession of the surface does not include possession of the minerals. — L. & N. v. Massey, 136 Ala.. 156; Delaware v. Grill, 18 Pa. S. Ct. 98; Murray v. Allard, 39 L. R. A. 249; Gataline G. Go. v. Lloyd, 176 Ill. 275; Barranger & Adams on Mines, 568; White on Mines and Mining, Sec. 438; Caldwell v. Copeland, 37 Pa, 427; 1 Cyc. 994. Under the circumstances in this case the possession of the land is referred to the legal title and respondent having the legal title was in constructive possession.— Smith v. Gordon, 136 Ala. 495; So. Ry. v. Hall, 145 Ala. 224. Title cannot be here divested by virtue of the doctrine of estoppel. — Jones v. Peebles, 130 Ala. 274. There is no room for the doctrine of laches or staleness of demand. — Haney v. Legg, 129 Ala. 625; First Nat. Bank v. Nelson, 106 Ala. 542. There is a difference between a mere claim to property and the actual possession of property on the question of staleness of demand. — Shorter v. Smith, 56 Ala. 210; Montgomery L. & P. Co. v. Lahey, 121 Ala. 136. Where complainant seeks other than the statutory relief the bill must contain allegations other than those in the statute. — Cheney v. Nathan, 110 Ala. 254; Interstate B. & L. Assn. v. Stock, 124 Ala. 111.</p>

Heard before Hon. L. D. Gardner. Bill by H. Elliott against Coleman & Davis, for discovery, accounting for damages, and injunction. From a decree for respondent, complainant appeals. Tbe equity of tbe bill was determined by this court on former appeal. — Coleman & Davis v. Elliott, 40 So. 666. Tbe description in this case could be aided by parol evidence so as to render tbe description complete.

Heard before Hon. Thomas H. Smith. Bill by Margaret Donagbey against J. S. Hardeman, revived against B. F. Hardeman as administrator. Decree for complainant and respondent appeals. Tbe bill sought to compel the surrender of a mortgage and its cancellation, to declare a judgment void, and to require J. S. Hardeman to render a full, true, and correct account of tbe dealings bad with oratrix, and to declare a trust for her benefit.

Heard before Hon. William H. Thomas. Bill by K. H. Bozeman against the Sun Insurance Company, for an accounting, and to enjoin a foreclosure sale under a mortgage with offers to do equity. From a decree sustaining demurrers to the bill complainants appeal.

Heard before Hon. A. H. Benners. Bill by Alfred M. Shook and others against the Avon-dale Land Company and others, to correct certain abuses in the corporation, and to enjoin the stockholders from amending the charter. Prom a decree overruling demurrers to the bill interposed by certain of the respondents they appeal.

Heard before Hon. William H. Thomas. Bill by N. J. Greil against Bichará Tillis, to reform a contract. Judgment for respondent and complainant appeals. The contract referred to was a contract to sell certain personal property situated within the limits of what was then known as “Electric Park,” owned by the Montgomery Amusement Company. It is alleged that the stuff was itemized, and an estimate of value placed opposite each item.

(Dowdell, C. J., Sayre and Evans, JJ., dissent in part.) Appeal from Jefferson Circuit Court. Heard before Hon. A. A. Coleman. Assumpsit by J. E. Hollingsworth & Company against the mayor and aldermen of the city of Ensley. Judgment for plaintiff and defendant appeals.

Heard before lion. Thomas W. Coleman, Jr. Assumpsit by Dixie L. Scott against the Mutual Life Industrial Association of Georgia, on a mutual certificate in which she was named as beneficiary. Judgment for plaintiff and defendant appeals.

Heard, before Hou. Samuel B. Browne. Action by Felix Cleveland and others against E. M. Wheeler for breach of contract, Judgment for plaintiffs, and defendant appeals.

Heard before Hon. A. A. Coleman. Action by H. 0. Miller against tbe Ledger1 Publishing Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. John L. Hughston, Special Judge. Assumpsit by the Acme Lumber & Manufacturing Company against the Merchants’ Bank. Judgment for plaintiff, and defendant appeals. For the pleadings and some of the facts, see the former appeal in this case, found in 160 Ala. 435, 49 South. 782. The facts in this case are sufficiently set out in the opinion.

Heard before Hon. Samuel B. Browne. Action by Francis Kierman against tbe City of Mobile. From a judgment for plaintiff, defendant appeals.

Heard before Hon. C. P. Almon. Action by Jim Pearce & Co., against T. H. Fisber for breach of contract. Judgment for defendant and plaintiff appeals. The court erred in refusing to strike plea A and in overruling demurrers to the same. — Secs. 17, 63, 57, Bankrupt Act; Collier on Bankruptcy, 450-1. The transcript of the discharge in bankruptcy was not properly authenticated for its admission in evidence under the Code.

Heard before Hon. H. A. Sharpe. Action by the Elmwood Cemetery Company against George B. Tarrant, Tax Collector, for money paid for taxes… Held: owned, and lots sold therein for profit on said 1st day of October, 1908, and has been suet cemetery ever since ttat time; ttat under and by virtue of section 91 of- the Constitution of Alabama of 1901 said real estate was exempt from taxation for said year 1909, that part of subdivision 2 of section 2061 of tte Code of Alabama of…

Heard before Hon. A. E. Baknett. Assumpsit by Beele. H. Collier, as administratrix, against J. H. Thompson. Judgment for plaintiff and defendant appeals. Tbe burden was on tbe plaintiff to show by clear and convincing proof tbe fact that partial payment bad been made, in order to stop tbe running of tbe statute. — McGehee v. Grier, 7 Port 537; Knight v. Clements, 45 Ala. 89; Kelson v. Larmer, 95 Ala. 300; Pearce v. Walker, 103 Ala. 250; 17 Cyc. 778; 25 Cyc. 1368.

Heard before Hon. A. O. Lane. Action by the Trotwood Park Land Company against the Messer-Moore Iusurance & Beal Estate Company, and Messer for money had and received. Judgment for plaintiff and defendant appeals. Before the agent can be held responsible he must be given notice of an election to hold him responsible before he pays the money over to the principal. — Eufemia G. Go. v. Mo.

John Pelham. Assumpsit by D. J. Meador against D. B. Lacy and others. From a judgment for plaintiff defendant appeals. . The deposition should have been suppressed. — McGut chins v. Logging, 109 Ala. 465; East v. Pace, 57 Ala. -523. The. court erred in admitting the letters written after the original letter claimed as the authority for letting' the contractors have the goods.

•Appeal from Perry Circuit Court. Heard before Hon. B. M. Miller. Action by W. L. Ward, as surviving partner of W. L. Wand & Son,, against tbe Farmers’ Cotton Oil & Trading Company. From a judgment for plaintiff, defendant appeals.

Heard before Hou. Saffold Berney. Action by Bicbard M. Jackson against the Birmingham & Gulf Bail way & Navigation Company. From a judgment for plaintiff, defendant appeals. It appears that plaintiff was a pilot on a steamboat owned by Jones for a salary of $1,350 per annum, with a month’s vacation and pay.

Heard before Hon. H. A. Pear.ce. Action by Elmore, Quillian & Company against Parrish Brothers, for the breach of two executory contracts for the sale of cotton. Judgment for the defendant on demurrer to the complaint, and plaintiff appeals.

Heard before Hon. J. N. Ham. Action by M. E. Donaldson against J. H. Wilkerson begun by attachment to enforce landlord’s lien for rent and advances. Judgment for defendant and plaintiff appeals. The court erred in declining to 'permit the entries on the journal and cash book in evidence. — Dismukes v. Tolson, 67 Ala. 142; Sec. 4008, Code 1907; 2 Enc. of Evi. 620.

Heard before Hon. William H. Thomas. Action by J. C. Tyson against Abe Weil for rent of storehouse, begun by attachment, levied upon certain goods alleged to belong to the subtenant. Samuel Gans Company intervened, claiming the goods as purchaser from the sub-tenant. Judgment for plaintiff and claimant appeals.

Heard before Hon. S. L. Brewer. Action by J. T. Williams against Thomas Brothers. Judgment for plaintiff and defendant appeals. The court erred in overruling demurrers to the complainant. — 9 Cyc. 712 and 713. Counsel discusses the evidence and insists that the court erred in its rulings thereon, and in denying the motion for a new trial, but cites no authority in support thereof.

Heard before Hon.' Mike Solly. Action by G. B. McElvane against the Central of Georgia Railway Company for damages for injuries received while alighting from one of its passenger trains. Judgment for the defendant, and plaintiff appeals. A person going on a train to meet a passenger or to assist a passenger to alight or to board the train is not a trespasser. — So. Ry. v. Patterson, 148 Ala. 78.

Heard before Hon. Chari.es A. Senn. , Action by Ida Jordan against the Birmingham Bail-jvay, Light & Power Company for damages for injury to her while a passenger. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. O. Lane. Action by Bailie Wiggins against tlie Birmingbam Railway, Light & Power Company for damages for injury to her as a passenger. Judgment for plaintiff’, and defendant appeals.

Heard before Hon. William Jackson. Action by Wade Stewart against the Sloss-Sheffield Steel & Iron Company. Prom a judgment for defendant, plaintiff appeals. The negligence alleged in the first count is a failure to provide plaintiff with a safe place in which to do his work under said employment, in that the roof of the mine where said rock fell was not sufficiently propped up or sustained.

Appeal, from Bibb Circuit Court. Heard before Hon. B. M. Miller. Action by J. D. Siinmerman against the Hills Creek Coal Company, a corporation, for injuries received in its employment. Judgment for defendant and plaintiff appeals.

Heard before Hon. William Jackson. Action by Will Riddle against the Bessemer Soil Pipe Company for damages for injuries received while in their employment. Judgment for defendant and plaintiff appeals. The court erred in overruling demurrers to special plea No. 4.— L. & N. v. Wynn, 51 So. 97T; Ala. S. & W. Go. v. Valiant, 51 So. 835; 86 Ala. 449; 1 LeB. 863. The court erred in overruling demurrers to the 5th and 6th pleas. Osborn v. Ala. 8. ■& W. Go., 135 Ala. 575.

Heard before Hon. John W. Inzer. Action by Alba Calvert against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. James J. Bay. Action by Gus Westbrook against the Kansas City, Memphis & Birmingham Kailroad, for damages for injury received while attempting to cross over between cars of a freight train standing over a crossing. Judgment for defendant and plaintiff appeals. Defendant’s plea B did not present a good defense to counts of the complaint which were filed after the twelve months had expired.

Heard before Hon. Wiliam: H. Thomas. Action by J. L. Wallace against the Western Railway of Alabama. From a judgment for plaintiff, defendant appeals. The facts as made by the complaint under plaintiff’s testimony are: That at the time of the injury plaintiff was the servant or employee of the Montgomery Tract-ion Company, wbicb crosses the defendant’s track at grade.

Heard before Hon. A. O. Lane. Action by J. C. Choate against the Alabama Great Southern Railroad Company, for injuries received while in the employment of the defendant. There was judgment for plaintiff, and on motion of defendant, the verdict was set aside and a new trial granted. From this order plaintiff appeals. The right of appeal exists. — Sec. 2846, Code 1907.

Heard before Hou. W. W. Harals'on. Action by W. H. Lowe against the Southern Railway Company, to recover excess of freight paid. Judgment for plaintiff and defendant appeals. Counsel discuss the 110 Commodity Act, and insist that the carrier had the right to reclassify the material shipped, and to charge the rate fixed by law, and that hence, the court should have directed a verdict for the defendant, but cite no authority in support of their contention.

Heard before Hon. A. O. Lane. Action by S. J. Cavender against the St. Louis & San Francisco Bailroad Company, for damages for injury to stock, “while being held for transportation. Judgment for plaintiff and defendant appeals. For a definition of “bill of lading,” see Elliott on Railroads, Sec. 1415; 122 U. S. 79. An action on a bill of lading is ex contractu and tenders no issue of negligence vel non.

Heard before A. O. Lane. Action by Mrs. K. A. Jones against the Central of Georgia Bailway Company for delay in delivering baggage. Judgment for plaintiff and defendant appeals.

Heard before Hon. W. W. Pearson. Action by Dahlberg Brokerage Company against the Atlantic Coast Line Railroad Company for delivering goods to the Avrong person. .Judgment for plaintiff, anl defendant appeals. The facts and pleadings sufficiently appear from the opinion.

H. A. Pearce. Action by the Sigma Lumber Company against the Central of Georgia Railway Company for damages for the destruction of lumber. Judgment for plaintiff and defendant appeals. The court erred in overruling appellant’s demurrers to counts 1 and 2, and in refusing’ to give charges 11, 16 and 20. — Missouri K. £ T. R. R. Co. v. Witherspoon, 38 S. W. 833; Inman v. St. Louis, 37 S'. W. 37; international v. Starts, 33 SW 575; Hutchinson on Carriers, Yol. 3, sec. 1370.

Heard before Hon. T. L. Sowell. Action by J. B. Long and T. L. Long against the Kansas City, Memphis & Birmingham Railroad Company for destruction of houses by fire. Judgment for defendant and plaintiff appeals. If a suit is instituted by parties who are partners, and one of the partners dies, the same should proceed in the name of the surviving partner. — Dams v. Davis, 93 Ala. 173; 9 South. 736; InsuraAice Go. v. Moog, 81 Ala. 335; 1 Qyc. 71-92.

Heard before Hon. S. L. Brewer. Action by S. W. Turner against the Western Railway of Alabama for damages for killing a mule. Judgment for plaintiff, and defendant appeals.

Heard .before Hon. S. H. Sprott. Action by J osepbine Rodgers against Harper & Moore, for damages for personal injuries received alleged to have been caused by the frightening of her horse by defendant’s sawmill situated near the highway. Judgment for defendants and plaintiff appeals. The court erred in overruling demurrers to plea 13. — Postal T. Co; v. Hulsey, 115 Ala. 193; Johnson'd case, 104 Ala, 221; Herndon’s case, 100 Ala. 457.

Heard before Hon. William II. Thomas. Action by Silas Tyson, as trustee, against Joseph Nor-wood and others, on an injunction bond. From a judgment for defendants, plaintiff appeals. The action was upon an injunction bond made pursuant to an order of the city court of Montgomery in an equity suit wherein Norwood was complainant and Tyson, as trustee, was respondent.

<p>Appeal from EtoivaJi Circuit Court.</p> <p>Heard before Hon. John W. Inzer.</p> <p>Action by B. T. Collier against M. B. Johnson and others, on an injunction bond. Judgment for plaintiff and defendant Johnson appeals.</p> <p>The plaintiff was not entitled to recover in the absence of a showing of malice in its legal acceptation. — 79 N. C. 548. The court should have directed the jury that there could be no recovery for loss on sales where the injunction was ■habitually violated, and no sales were prevented thereby. — 14 Wash. 521. The amount claimed was subject to set off for mutual demands existing. — Sec. 5858, Code 1907; Loche v. Locke, 57 Ala. 473. The defendant was entitled to have the aliquot part of the dead defendant’s costs taxed against, the plaintiff. — Handley v. Lawloy, 90 Ala. 527; Neff v. Edwards, 81 Ala. 246; Secs. 3668-9, Code 1907.</p> <p>There was no error in the courts refusing pleas to be filed that had already been filed. — Burgess v. Am. Mtg. Go.. 115 Ala. 473; Shelton v. St. Clair; 64 Ala, 565; Davis v. The State, 17 Ala. 415. The presumption is that the court declined for this reason to allow a refiling. — Nash v. Schraeder, 27 Ala. 377; Harris v. Howland, 23 Ala. 644; Patton v. Haitcr, 15 Ala, 18. The court properly refused to tax plaintiff with one-fourth of the costs.— Henry v. Murphy cG Go., 54 Ala, 346; Sec. 3668, Code 1907. It is expressly shown by the record that nothing but attorney’s fees were recovered for, and hence, errors as to other matters of damage was without injury. The liability on an injunction bond is conditioned soiely on the dissolution of the injunction, and damages in consequence of the writ. — Bush v. Kirlcbride, 131 Ala. 405; Jackson v. Millspangh, 100 Ala. 285.</p>

Heard before I-Ion. W. W. Haralson. • Action by Frank Walker, by next friend, against Allen Carpenter, for malpractice.

<p>Appeal from Washington Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p>

<p>Appeal from Order of Hon. W. H. Simpson, of Marion Chancery Court.</p>