Volume 171 — Alabama Reports

<p> Robbery. </p> <p>Appeal and Error; Review; Injury. — A conviction by a jury-selected from a special venire drawn under the local laws 1907, p. 238, is illegal. And as it. cannot be said that such trial is without injury within section 6264, Code 1907, the judgment will be reversed.</p> <p>(Simpson, McClellan and Somerville, JJ., dissent.).</p>

Heard before Hon. E. J. Garrison. Mai Patterson was convicted of manslaughter and appeals. The orders of the court, were to summon 20 men whose names appear on the venire of grand jurors. In obedience to that summons, the sheriff summoned all except 2, reported as “not found” in his county.

Heard before Hon. John T. Lackland. Oscar Roberts was convicted of murder in the second degree, and he appeals.

Heard before I-Ion. W. W. Haralson. Walter Simmons was convicted of murder in the second degree, and appeals.’ The charges referred to in the opinion' are as follows: ' “(1) Gentlemen of the jury, I charge you that if the testimony in this case in its Aveight and effect be such as that two conclusions can be reasonably drawn'from it, the one favoring the defendant’s innocence and the other establishing his guilt, law, justice, and humanity alike demand that the jury shall…

Heard before Hon. J. C. Richardson. Fletcher McGehee was convicted of murder and he appeals. Counsel insist without citation of authority that the motion to quash the indictment should have been granted. A statement in the nature of confession cannot be received unless shown to be voluntary. — 1 Mayf. 202.

Heard before Hon. W. W. Pears’on. Joe Wilson was convicted of murder, and he appeals. The demurrer of the state to the motion to strike the indictment ignores sections 7304-5, Code 1907. Section 7572 of the Code has no application to questions arising under those two sections.

Heard before Hon. S. L. Weaver. Richard Gray was convicted of murder in the second degree and he appeals. Counsel discuss the method of drawing the jury in this case and also the constitutionality of the jury laws, and cite authority 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.

Heard before Hon. H. A. Pearce. Elijah. Jackson was convicted of murder and be appeals. Counsel insist that tbe new jury law is unconstitutional because not enacted in accordance with tbe provisions of section 45, 64 and 66, Constitution 1901. As to tbe 1st proposition be cites State ex rel. Bragg y. Rogers, 107 Ala. 444; Bolling & Son v. Legrand, 87 Ala. 492. As to tbe 2nd proposition, be cites Bd. of Rev. v. Crowe, 37 So. 473; State ex rel.

Heard before Hon. J. N. Ham. Jack Kelly was convicted of selling intoxicating liquors, and be appeals. Tlie indictment charges that Jack Kelley sold spirituous, vinous, or malt liquors without license and contrary to. law, against the peace and dignity of the state of Alabama.

<p>Violating Prohibition Law.</p> <p>1. Courts; Bessemer City; Affidavit; Jurisdiction. — The judge of the city court of Bessemer has jurisdiction to take an affidavit charging a violation of the prohibition law, and a warrant issued thereon is not insufficient because returnable to the judge of the city court of Bessemer instead of to the Bessemer City Court.</p> <p>2. Intoxicating Liquors; Sales; Affidavit; Sufficiency. — An affidavit alleging that within twelve months before its making, the accused sold spirituous, vinous or malt liquors without a license and contrary to law, or sold spirituous, vinous or malt liquors contrary to law, sufficiently charges an offense; the omission in the alternate phrase of the affidavit of the words “without a license” being immaterial, since no license for the sale of liquor could be legally issued at that time.</p> <p>3. Samel — An affidavit made Feb. 6, 1910, averring that within twelve mouths accused sold intoxicating liquors without a license and contrary to law, charges an offense not referable alone to a violation of the penal statute adopted at the special session of the legislature in 1909, more than twelve months after the general prohibition law went into effect, and it is, therefore, not subject to demurrer for failing to aver that the act charged was committed after the laws adopted at the special session 1909, went into effect.</p> <p>4. Same; Evidence; Sufficiency. — Where a witness testified to a sale by the accused, and another witness also testified to a sale, but there was a conflict between the witnesses as to where in the room the first witness was when the sale was made, but the latter witness was uncontradicted, the sale was proven without dispute and the court properly gave the affirmative charge.</p> <p>5. Witnesses; Bias; Materiality. — Where the trial was for unlawfully selling liquor to the father of the state’s witness the state of feeling between the witness and his father is not material.</p> <p>6. Same; Impeachment; Silence. — The fact that a witness who testified in the city court did not deny a statement made by another while testifying as a witness in the mayor’s court does not impeach such witness by silence, since the witness was under no obligation to interrupt the trial in the mayor’s court to explain or correct such statement.</p>

' Heard before Hon. R. H. Jones. ’ Jabe Christian was convicted of cruelty to animals .and be appeals.. The affidavit fails to charge any offense in failing to charge that the defendant had the custody of the animal either as owner or otherwise.- — Miles v. The State, 94 Ala. 108; Anderson v. The State, 121 Ala. 126; Stallworth v. The State, 157 Ala. 3.

ITeai’d before Hon. R. H. Jones-. Will Williams was convicted of a misdemeanor, and lie appeals. The record shows the organization of the circuit court of Covington county, which convened at the court house thereof on Monday, the 23d day of-May, 1910, the judge presiding, the name of the grand jurors impaneled, together with the other necessary orders of the court.

Heard before Hon. E. F. Ellsberry. Jim Howell was convicted of failing to work the public road, and he appeals. Counsel discusses the various sections bearing upon the question, to-w'it: sections 5804, 5808 and 7737, and insists that the distance must be computed by the practical and usual routes traveled, and not by an air line, and that the criminal statute has- no application 'where a new road is to be opened, but cites no authority in support of his contention.

Heard before Hon. Charles A. Senn. Action by Leichtman, Goodman & Company, against B. Zaveio, in trover and in case. From a judgment for plaintiff defendant appeals. The first count was in trover for the conversion of certain personal property.

I-Tcarcl before Hon. W. W. Haralson. Action by the Alabama State Land Company against the Yellow Pine Lumber Company for conversion of lumber. Judgment for plaintiff, and defendant appeals. The facts seem to be that one Ferguson cut about 225,-000 feet of lumber from lands belonging to the plaintiff, and sold it to the defendant, and that at the time the suit was brought it was stacked in the mill yard of Ferguson.

Heard before Hon. William H. Thomas. Action by J. S. Hamilton against the Mutual Warehouse Company. From a judgment for plaintiff, . defendant appeals. The complaint contains two counts — one in trover; the other for failure to deliver the bale of cotton to the holder of the warehouse receipt. The general issue was pleaded. The facts seem to be that Charles Perry rented a piece of land from Mrs. Nickles and sublet a part to his wife,'Mary Lou Perry.

Heard before Hon. James J. Ray. Action by Molly Bryan and others against the Corona Coal & Iron Company and others, for trover and conversion. Judgment for plaintiff and defendant appeals. Pleading as to time is too indefinite and uncertain, and the demurrer to the complaint should have been sustained. — Shields v. Sheffield, 79 Ala. 94; Dusenherry’s ease, 94 Ala. 413; 6 Ene. P. & P. 255-56.

Heard before Hon. H. P. Merritt, Special Judge. Action joining trover, detinue and trespass on the case brought by A. K. Patterson again 5>. W. Baker. Judgment for plaintiff and defendant appeals.

Heard before Hon. M. Solute. Action by Clemmons, Powers & Co. against P. M. Metcalf for the destruction of a mortgage lien on cotton, From a judgment for defendant, plaintiff appeals.

Appear from Jefferson Circuit Court. Heard before Hon. A. H. Alston. Trover by W. H. Hutchinson & Son against tbe Jebeles & Colias Confectionery Company, for tbe conversion of a lot of bottles. Judgment for plaintiff and defendant appeals. In an action of trover time must be laid and proven as laid. — Williams v. MoKissaclc, 48 South. ,377; Mobile vr Bap. Bhore L. Oo-..*48 South. 377.

Heard before Hon. Safeold Berney. Trover by Henry C. Meyer against W. A. Shriner. Judgment for plaintiff, and defendant appeals. Trover is an equitable action. — Bates v. Murphy, 2 S. & P. 171. A conversion upon which trover may be had must be a tortious act. Neglect or nonfeasance will not do it.— Bolling v. Kirby, 90 Ala. 222. The gist of the action is the conversion. — King v. Franhlin, 132 Ala. 565.

Glair Circuit Court. Heard before Hon. John W. Inzer. Case by E. L. McLellan against James R. Roberson & Son, and others, for certain cotton, alleged to have been raised by one. Brown. Judgment for defendants, and plaintiff appeals. Under tbe. facts in this case appellant bad a landlord’s lien paramount to that of appellee. — Section 4734 and 4736, Code 1907; Smith v. Huddleston, 103 Ala. 233.

Heard before Hon. S. L. Brewer. Action by Mary Lo-u. Lee and others against John Raiford. From a judgment for defendant, plaintiff appeals.

Heard before Hon. Mike Sollie. Action by J. W. Floyd against J. J. Wilson in trespass to realty, joining statutory penalty for cutting trees. Judgment for defendant, and plaintiff appeals. The original complaint in trespass quare clausum fregit was served on the defendant April 6, 1907. There was an amendment filed September 1, 1908, and another filed August 30, 1910. Count 4 seems to have been filed February 21, 1910, and is for the statutory penalty for cutting trees.

Heard before Hou. H. P. Meeritt, Special Judge. Action by T. J. Mann against John A. Darden and others, to recover the value of a horse alleged to have been obtained by fraud and deceit. Judgment for defendants and plaintiff appeals. Fraud is sought to be established, and great latitude should have been allowed in cross examining the party charged with the fraud. — Nelms v. Steiner Bros., 113 Ala. 562; Darden v. Mann, 163 Ala. 297.

Heard before Hon. H. P. Merritt, Special Judge. Action by John Blair against J. S. Stewart for malicious prosecution. Judgment for plaintiff and defendant appeals. The court erred in permitting plaintiff to show that the grand jury had not indicted him. — 25 Cyc. 55-A.. The court erred in permitting it to be shown that plaintiff ivas a married man. — Killebreto v. Carlisle, 97 Ala. 535; Lunsford v. Dietrich, 86 Ala. 250; 26 Cyc. 61.

Heard before Him. D. W. Speake. Action by Robert H; Watson against James F. Cain. From a judgment for defendant, plaintiff appeals.

Heard before Hon. Saffold Berney. Action by James G. Chambers against Martin Lindsey, judgment for the defendant, and plaintiff appeals.

Heard before Hon. Charles A. Sunn. Action by B. H. Stokes against the Western Union Telegraph Company for damages for failure to transmit and deliver a telegram. Judgment for plaintiff and defendant appeals. The court erred in submitting to the jury the question of punitive damages. — W. U. T. Go. v. Westmoreland, 44 South. 382; Western Ü. T. Go. v. Lelmd.

Heard before Hon. Saffold Berney. Action by William T. Lay, against tbe Postal Telegraph Cable Company, for damages for mistake in the transmission of a message. Nonsuit by plaintiff on account of adverse ruling with bill of exceptions plaintiff and appeal. The court erred in striking from the complaint claim for mental anguish. Under the pleadings, it was certainly recoverable in this action. — W. Ü.

Heard before Hon. Thomas W. Wert. Action by John A. Thomason as administrator against the Louisville & Nashville Railroad Company, for the damages for the death of his intestate. Judgment for plaintiff and defendant appeals. Where the complaint alleges a negligence of duty and the evidence shows no duty, there is a fatal variance. — G. P. R. R. Go. v. Propst. 85 Ala. 205; A G. 8. v. Hall, 105 Ala. 606.

Heard before Hon. Thomas W. Wert. Action by Amelia F. Chamblee, administratrix, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. William H. Thomas. Action by John D. Andrews against the Louisville & Nashville Railroad Company, for damages for injuries received, while engaged in the business of the master. Judgment for plaintiff and defendant appeals. Plaintiff failed to prove his complaint or any count thereof, and hence, the defendant was entitled to the affirmative charge. — Richards v. Sloss-8. 8. & I. Co. 146 Ala. 245.

Heard before Hon. B. M. Miller. Action by John T. Sharp against the Louisville & Nashville Railroad Company, for damages for injuries while engaged in its employment. Judgment for plaintiff and defendant appeals. The count attempting to charge wilfulness is at best a count in simple negligence only. —B. R. L. & P. Go. v. Wright, 153 Ala. 99. The court, therefore, erred in sustaining the demurrers to the pleas of contributory negligence on that ground.

Heard before Hou. W. W. Pearson. Action by J. A. Maddox against tbe Chilton Warehouse & Manufacturing Company. From a. judgment for defendant, plaintiff appeals. The substance of count 1 is set out in the complaint, as is the substance of counts 2 and 3.

Heard before Hon. Thomas W. Coleman. Action by A. J. Jones against the Union Foundry Company., From a judgment for defendant, plaintiff appeals. The judgment resulted in a verdict for the defendant, and the plaintiff made an application for new trial, based upon alleged error in giving certain charges for the defendant, which motion was overruled.

Heard before Hon. William Jackson. Action by H. B. Lewis, administrator, against the Woodward Iron Company. Judgment for plaintiff, and the defendant appeals.

Heard before Hon. William Jackson. Action by Richard H. Smith against the Tennessee Coal, Iron & Railroad Company. From a judgment for plaintiff, defendant appeals.

Heard before Ron. John W. Inzer. Action by Ada V. Heald, as administratrix, for damages for the death of her intestate, an employee, against the Alabama Consolidated Coal & Iron Company. Judgment for plaintiff, and defendant appeals.

William Jacks'on. Action by Citarles Cardwell against the Alabama Great Southern Railway Company. From a judgment for plaintiff, defendant appeals.

Appear from Etowah Circuit Court. Heard before Hob. John W. Inzer. Action by Thomas Ventress against the Alabama City, Gadsden & Attalla, Railway Company. Prom a judgment for plaintiff, defendant appeals. The first count was in simple negligence, with general averment, as was the second and third. The fourth and fifth were in whnton negligence. The pleas of contributory negligence are sufficiently stated in the opinion.

Heard before Hou. Charles W. Fergus'on. Action by Denia Humphries against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. A part of the oral charge, excepted to and referred to in the opinion, is as follows: “Now the law does not lay down any fixed rule by which to ascertain damages, for physical pain and mental distress, hut leaves that to the sound judgment of the jury trying the case.

Heard before Hon. W. W. Haralson. Action by William C. Morgan against the Southern Railway for damages for injuries received while a passenger. Judgment for plaintiff and defendant appeals. Under the facts in this case, the defendant was guilty of contributory negligence. — S. & N. R. R. Go. v, Gkalker, 75 Ala. 141; E. T. V. <& G. v. Holmes, 97 Ala. 333; So. Ry. v. Hill, 39 South 879; Dilbwm v. L & N. 47 South. 210; McDonald v. Mont.

Heard before Hon. S. L. Brewer. Action by J. P. Lawrence as administrator, against tbe Kaul Lumber Company, for the death of his intestate, alleged to have been a passenger on one of defendant’s logging trains. Judgment for the defendant and plaintiff appeals.

. Heard before Hon. A. O. Lane. Action by Samuel Brown as administrator, against the St. Louis & San Francisco Railroad Company, for damages for the wrongful death of his intestate. Judgment for defendant and plaintiff appeals. The allegations of the complaint sufficiently appear-from the opinion.

Heard before Hon. H. B. Foster. Action by Maxwell Bros, against the Tuscaloosa Belt Railway Company, for damages for injury to property. Judgment for plaintiff and defendant appeals. The court erred in sustaining demurrers to the plea setting up contributory negligence in the driver in going on the track without stopping, looking or listening. — • H. A. & B. By. Go. v. Maddox, 100 Ala. 618; So.

Heard before Hon. John H. Disque. Action by H. L. Appleton against tbe Alabama City, Gadsden & Attalla Railway Company. Judgment for plaintiff, and defendant appeals.

Heard before Hou. C. P. Almon. Action by Frank Irvine against J. B. Thomas in assumpsit on the common counts. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. O. Lane. Motion by G. A. Griffith against H. C. Miller as treasurer of Jefferson county, for a summary judgment under section 5938, Code 1907, for services as bailiff of the city court of Birmingham. From a judgment granting said motion, the treasurer appeals.

Heard before Hon. Saffold Berney. Action by Florence H. Prine against the American Central Insurance Company. From a judgment for defendant, plaintiff appeals.

•Heard before Hon. Ti-iomas W. Wert. Action by R. J. Riddle against'Scruggs & Ecbols for breach of contract. Prom a judgment for plaintiff, defendant appeals.

Heard before Hon. John H. Disque. Action by L. L. Herzberg, as trustee of S. W. Riddle & Co., against R. J. Riddle and the Tennessee Milling Company, to recover money alleged to have been paid by tbe bankrupt in violation of the bankrupt law. Judgment for defendants, and plaintiff appeals.

Heard before Hon. S. H. Spuott. Action by Pickens County against Greene County to recover for part of tbe price of a bridge constructed by Pickens County on a public road over a stream forming the dividing line between tbe counties. Judgment for tbe defendant and plaintiff appeals.

Heard before Hon. W. W. Haralson. Action by John H. Wood against the Nashville, Chattanooga & St. Louis Railway. From a judgment for plaintiff, defendant appeals. The following is the correspondence between plaintiff and G. D. Hicks, called for in the opinion: Letter from Hicks to Wood: “Jan. 25, 1906.

Heard before Hon. E. J. Garrison. Action by Mrs. W. F. Conway as guardian, against T. E. Clark and another upon certain promissory notes. Judgment-for defendant and plaintiff appeals. Counsel discuss certain assignments of errors with citation of •authority, but in view of what is said in the opinion, it is not deemed necessary to set them out.

Apppeal from Birmingham City Court. Heard before Hon. C. C. Nesmith. Action by the Cosmos Cotton Company against the 1st National Bank of Birmingham for shortage in weight and deterioration in cotton purchased by it through hill of lading with draft attached, which had been cashed by-defendant’s bank, and forwarded to and paid by plaintiff-judgment for defendant and plaintiff appeals.

Appeal, from Birmingham City Court. Heard before Hon. C. C. Nesmith. Assumpsit by J. S. Reeves & Company against BZavello. Judgment for plaintiff and defendant appeals.

Heard before Hon. Charles A. Senn. Action by J. S. Shannon against W. W. Wisdom for breach of contract in the sale of land. Judgment for the defendant and plaintiff appeals.

Heard before Hon. H. P. Merritt, Special Judge. Assumpsit by tbe Moline Jewelry Company against B. F. Crew. Judgment for defendant, and plaintiff appeals. Charge 1 was the general affirmative charge.

Heard, before Hon. William H. Thomas. Action by tbe Diamond Rubber Company against W. M. Cannon and others, doing business as the Capital City Auto Company, as defendants, and against the Southern Hardware & Supply Company as garnishee, in which the Fourth National Bank appeared as claimant. From a judgment for claimant, plaintiff appeals.

Heard before Hon. A. O. Lane. Action by the Carolina Portland Cement Company against the Southern Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Heard before Hon. William Jacks'on. Action by Ida Satterfield against the Fidelity Mutual Life Insurance Company, on a policy o.f insurance. Judgment for defendant and plaintiff appeals. The first plea seeks to set np another contract than, that plainly.expressed in the policy of insurance. This is specially prohibited in section 4579, Code 1907. — Mutual L. I. Co. v. Allen, 51 South. 879; Manhattan L. I. Co. v. Verneuill, 47 South 72; 116 la. 597.

Heard before Hon. B. M. Miller. Action by Susan B. Gee against tlie Empire Life Insurance Company on a policy. Judgment for plaintiff and the defendant appeals. The circuit court -erred in sustaining demurrer to pleas 1 and 2. — S'ec. 4572, Code 1907; Mut. L. I. Go. v. Allen 51, South. 877. The court also erred in sustaining demurrer to pleas 6 and 7. — Allen’s case, supra; Yernuille’s case, 156 Ala. 592.

Heard before Hon. A. H. Benners. Bill by the Birmingham Industrial Company against Lovick W. Phillips and others for a receiver to take charge of property pending litigation. From a decree for complainant respondents appeal.

Appear from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Bill by William J. Randle, as administrator of M. F. Howell, deceased, and others, for the administration of the estate in the chancery court.

Heard before Hon. W. H. Simpson. Bill by H. B. Greenwood against J. H. West, and others to compel the opening of a way. From a decree for defendants, complaintant appeals.

Heard before Hon W. H. Simpson. Bill by John D. Wyker against Oliver Wade and H. M. Waltz to enforce a. materialman’s lien. Decree for complainant, aiid respondents appeal. Wyker was the party furnishing material. Waltz was the contractor, and Wade was the owner.

Heard before Hon. A. H. Benneks. Bill by T. F. Johnson against the 1st Avenue C'oal & Lumber Company, for an injunction to abate a nuisance alleged to be continuous in its character. From a decree overruling demurrers to the bill, respondent appeals. Under section 5193 and section 5196, Code 1907, the nuisance complained of ivas a public nuisance, and the effort to abate is must be made in the name of the state. — Joyce on Nuisances, § 32.

Heard before Hon. Armstead Brown. Bill by F. J. Cramton against the city of Montgomery and other to enjoin the paving, or the letting of a paving contract for certain streets in the city of Montgomery. From a decree for respondent complainant appeals. The jurisdiction of the chancery court to grant relief against continuing trespasses and against nuisances is well established.' — ■ So.

Heard before Hon. W. H. Simpson. Bill by A. J. Stewart and others, against R. A. Stewart to annul a deed, and to. sell land for division. From a decree for complainant respondents appeal. As to the undue influence that will avoid a deed, see. — Knox v. Knox, 95 Ala. 895; Bancroft v. Otis, 91 Ala. 290; Adair v. Oraig, 135 Ala. 332.

Heard before Hon. W. W. Whiteside. Bill by the Anniston Mercantile Co. against Ida L. Eubanks, to foreclose a chattel mortgage, with a cross bill by respondent to declare the mortgage void and for cancellation. Decree for complainant and respondent appeals. The declarations of Eubanks as .to his agency were not admissible to show agency. — Parker v. Bond, 121 Ala. 530; Learned L. Go. v. Ohatchee L. Go. Ill Ala. 453.

Heard before Hon. W. H. Simpson. Bill by M. D. Wiggins against William E. Skeggs and others. Judgment for respondents, and plaintiff appeals.

Heard before Hon. A. H. Benners. Bill by J. B. Dixon as a purchaser at a foreclosure sale against Jane Hayes and another, to redeem from first mortgage. From a decree dismissing bill and cross bill complainant appeals.

I-Iearcl before Hon. A. H. Benners. Bill by Henry Clay Howell against George Howell and others, to sell land for partition, and incidentally to allot dower and homestead, and for an accounting for rents, income and profits. From a decree dismissing the bill complainant appeals. The bill filed in Cherokee County was not a proper matter of abatement. — Hall v. Holcomb, 26 Ala. 720.

Heard before Hon. L. D. Gardner. Bill by W. R. Barnes against A. J. Bentley and another. From a decree overruling demurrer to the bill respondent appeals. Counsel insists that by the amendment a departure from the original bill of complaint as last amended was had, and that under the allegations of the bill, no specific performance would be granted. — Jones v. Jones, 155 Ala. 644.

Heard before Hon. G. K. Miller. Bill by Andrew Headen against Nannie Headen and others for the sale of land for partition. From a decree overruling a motion to strike certain pleas filed by the defendant, and holding said pleas sufficient, plaintiff' appeals. Plea 1 was bad and should have been stricken. 1st because no notice was given of the proceedings to set apart the widow’s exemptions. — Sec. 7, Const. 1876.; 14 Amend. Const.

Heard before ITou. Th'omas H. Smith. Bill for injunction by J. T. Keener and the Keener Amusement Company against George E. Moslander. Decree for defendant and plaintiffs appeal.

Heard before Hon. T. L. Sowell. Bill by the Alabama Coal & Coke Company against tlie Gulf Coal & C'oke Company, to establish title to land by equitable estoppel, and to cancel a deed as cloud upon title. From a decree sustaining demurrers to the bill, complainant appeals.

Heard before Hon. W. H. Simpson. Bill by Calvin G. Jackson, against Shelby Grisham, as administrator, and others. From a decree for defendants, complainant appeals. The bill seeks to have sold for the debts of a third person alleged to be due the qomplainant certain lands described in the bill, the title to which were at the time of her death in Sallie M. Long, formerly Sallie M. Winston.

Heard before Hon. William H. Thomas. Bill by Lucy Witherspoon and others, against Phoebe Williams, and others, to sell lands for division. Decree for complainants and respondents appeal. The word “children” as used in the statute means solely legitimate children.— Wilkinson v. Alums, 1 Y. & B. 462; Bell v. Phyn, 7 Yes. 458; -Dickinson- v. N. E. By Go. 2 H. & C. 735; 49 Cent. Dig. sec. 1085.

Heard before Hon. W. H. Simps'on. Bill by H. W. Fossett against W. T. Turk and others, to enforce a vendor’s lien. From a decree for respondents complainants appeal. As to what is requisite in proof of a defense of bona fide purchaser for value without notice of a vendor’s lien see. — Graft v. Russell, 67 Ala. 9; Hooper v. Strohn, 71 Ala. 75; May v; ■Wilkinson, 76 Ala. 543.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. William H. Thomas.</p> <p>Bill by Patsy Ball and others against C. G. Zirlde and others to specifically perform a contract of sale. Decree for complainants, and respondents appeal.</p> <p>The bill alleges in effect that Zirkle and Moore and their wives entered into a. contract of sale with Queen Rice for lot No. 9, square 9, of Goldth waite plat, in Montgomery, Ala., on April 1, 1902. It is then alleged that at various and sundry times up to March, 1906, sundry small payments had been made on the same, aggregating as a total $405, and that in that month Queen Rice died, leaving the complainants as the only heirs at law, that no administration had been had on the estate, and that the estate Avas of no value. A contract is made an exhibit to the bill, and so far as is material here its provisions are as folloAVS: S'aid Zirkle and Moore agree to sell said property to said Rice for the sum of $500, as follows, to Avit: $15 cash, the receipt of which is hereby acknoAvledged, and the further sum of $15 to be paid on the 1st day of each month thereafter until all of said sum of $500 shall have been paid, together with interest at the rate of 8 per cent, per annum, said interest to be reckoned annually. Said Rice to have the right to pay all of the said sum at any time before maturity; and in case of any payment in excess of $15 per month, or sums which will make $15 per month being paid, if the same should he used as such payment before any forfeiture as hereinafter agreed upon shall begin to run, said Rice shall pay the taxes for the year 1902 and thereafter, and reimburse said Zirkle and Moore during the terms of this contract, and also for any sums advanced by them, for taxes or repairs, before a deed can be demanded. The next paragraph provides how the insurance money shall be distributed in case of a fire. It is expressly agreed between said parties, in consideration of said Zirkle and Moore selling on installment plan, that in case of a failure on the part of said Rice to make such installment payments promptly, and suffer the same to remain during the year 1902 unpaid for 30 days after due, then this agreement shall he declared void by said Zirlde and Moore; should she suffer the same during the year 1903 to remain unpaid for 60 days, and during the year 1904 and thereafter 90 days, then and in that event said Zirlde and Moore may declare this agreement null and void, and in any and all events the money so paid under this contract shall be considered a fair rental value of the property, and shall be so used by said Zirlde and Moore in case said Rice shall not make the payments promptly, and said Rice agrees to hold said property as the tenant of said Zirkle and Moore until all of said money shall have been paid, and she is entitled under the agreement to receive a deed to same. Respondents demurred to the bill, and answered, admitting the contracts, and setting out the payments made, and the money paid out by them on account of said property, and also set up the forfeiture clause of the contract, and further say that they have not been paid or tendered the amount due under the said contract.</p> <p>Where a sale of land is made by installments the receipt of one or more overdue installments does not waive the right to a forfeiture for default in paying subsequent installments.- — • 29 A. & E. Enc. of Law, 685. Habitual indulgence as to time of payment under a contract is no waiver of the right to cancel the contract because of overdue payments. — Wmchell v. Scott, 114 N. Y. 640; 29 A. & E. Enc. of Law, 1091; 73 Mo. App. 161; 55 Mo. App. 224; Stowe v. Russell, 36 111. 18; 63 111. 468; 11 Neb. 201; 56 Is. 658; 184 Mass. 334. Under the evidence the vendors constantly and expressly reserved the right of forfeiture, and constantly stated that the contract had been forfeited. — Wilson v. Meyer, 23 Utah 529; Bennecke v. Ins. Co. 105 U. S. 355. The contract ivas abandoned as appears from the evidence. — 132 N. G. 353; 108 N. O. 167. The proper tender was not made. — Ledyard v. Manning, 1 Ala. 153; Broughton v. Mitchell, 64 Ala. 210.</p> <p>It clearly appears that appellant waived forfeiture on account of default in the payment under the contract. — Stewart v. Cross, 66 Ala. 28; Acker v. Bender, 33 Ala. 230; Hurst v: Thompson, 73 Ala. 158; Danis v. Roberts, 89 Ala. 406; Anderson v. Tucker, 127 Ala. 631; Cole v. Hines, 32 L. R. A. 463.</p>

H. A. Sharpe. Bill by the State on the relation of the Attorney General against C. L. Fuller and others, to abate a liquor nuisance. From a decree overruling demurrers to the bill, and denying the motion to dissolve the injunction and discharge the writ of seizure, defendant’s appeal.

Appeal, from Montgomery City Court. Heard before Hon. William H. Thomas. Bill by H. C. Stanley and others against J. J. Moseley to cancel a deed, appoint trustees and administer the property. From a decree for complainant respondent appeals.

<p>Appeal from Pike Chancery Court.</p> <p>Heard before Hon. L. D. Gardner.</p> <p>. Bill of N. J. Powell against W. E. Hanchey, to declare a mortgage void, because given to secure the husband’s debt and to cancel same as cloud upon title. From, a decree, for complainant respondent appeals.</p> <p>In .the first place, Mrs. Powell was not a surety. — M. & 0, v. Nicholas, 98 Ala. 125; Wimberly v. Windham, 104 Ala. 409; Montgomery v. Hughes, 65 Ala. 204; Anderson v. Bellinger, 87 Ala. 836. Under these authorities, it is insisted that Mrs. Powell was not a mere volunteer, nor was the mortgage without consideration as to her, since the lumber ■ had been bought for her benefit, and had been used in the erection of her house before she signed the papers. The statute is not intended as a prohibition upon the right of the wife to contract further than to be surety for the husband. The word “surety” in the' statute must be given its legal, well defined meaning as set forth in the authorities cited above. It only applies where there is no consideration moving to the surety on account of the transaction. — 21 Cyc. 1456, and 1465, and 1468, and authorities cited in the note.</p> <p>Under the facts in this case the credit was given to the husband, and when the mortgage was executed the creditor was an existing creditor who consented to and was cognizant of the voluntary gift and conveyance of his vendee. Hence, there was nothing in the defense of fraud. — KoJm v. Peters, 104 Ala. 523; Robbins, et al. v. Wooten, 128 Ala. 373; 20 Cyc. 434. If the husband was still bound, then the wife was his surety in violation of the statute. — Richardson v. Stevens, 114 Ala. 238; Houghton v. Hill, 138 Ala. 625. As to how a wife may be bound see. — Wadsworth v. Hodge, 88 Ala. 500.</p>

Heard before Hon. William Jackson. Bill by Lucy Carr against ZenusCarr for divorce on account of cruelty. From a decree dismissing the bill,, complainant appeals.

Appeal, from Autauga Chancery Court. Heard before Hon. W. W. Whiteside. Suit by L. W. Nelson and others, heirs of J. H. Nelson, deceased, against W. W. Wadsworth and another, to declare a deed a mortgage, and for an accounting, and to redeem. From a decree sustaining a demurrer to the bill, complainants appeal.

Heard before Hon. A. H. Benners. Bill by J. D. S. Davis against J. S. Kennedy as administrator, to enjoin a suit for damages for wrongful death of respondent’s intestate.' From a decree overruling demurrer to the bill respondent appeals. S'ection 2486, of the Code of 1907, confers a right upon the personal representative of deceased, which was not recognized at common law or in equity. — S. & N. R. Go. v. Sullivan, 59 Ala. 272; Buchaleto v. T. G. I. & R. Go\, 20 South. 606.

' Heard before Hon. A. H. Benners. Bill by Florence Hall and others against H. B. Hall and others to quiet title to lands. From a decree for complainants respondents appeal. Counsel insists that the court erred in the final decree, but cites no authority in support of his contention. This cause should be affirmed on the authority of. — Fair cloth v. Oarroll, 137 Ala. 243.

<p> Bill to Foreclose Mortgage. </p> <p>1. Mortgages; Foreclosure; Assignment. — In a bill to foreclose a mortgage assigned to the complainant, it was not necessary to allege that the notes secured by the mortgage were actually delivered to the mortgagee and duly assigned by him to complainant.</p> <p>2. Corporations; Foreign Corporations; Doing Business. — Where the only act done by it was the filing of a bill to foreclose a mortgage executed to another and assigned to it in New York, such an act was not the doing of business in the state by a foreign corporation, within the constitutional and statutory provisions fixing the duties of foreign corporations before doing business herein.</p>

Heard before Hon. A. H. Benners. Bill by Frank Leslie against Mrs. Irene Todd and • others, to enjoin the execution of a judgment, and to annul the same. Decree for complainant and respondent appeals. The bill was insufficient in its statement of a defense to the suit should the judgment be set aside. — Dimidin v. Wilson, 64 Ala. 162; Bice v. Tobias, 89 Ala. 214.

Appeal, from Walker Circuit Court. Heard before Hou. James J. Bay. Action by Bankhead & Bankhead against J. deB. Hooper, and others, for possession of minerals. Judgment for plaintiffs and defendant appeals. The case is governed as to the effect of the tax deed as evidence, and as to the statute of limitations, by the Code of 1896. — Doe ex dem. Trotter v. Moog, 150 Ala. 460.

Heard before Hon. John H. Disque. Ejectment by John Doe on the demise of A. L. Christopher against Simon Webb and others. Judgment for defendants and plaintiffs appeal. Under section 2865, the court should reverse and render. A deed is not admissible in evidence which does not describe the lands sued for. — -Morning v. Tipton, 126 Ala. 350. It is not good to show adverse possession under color of title.— Leaclbetter v. Balckcm, 128 Ala. 418.

Mobile Circuit Court. Heard before Hon. Samuel B. Brown. Statutory ejectment by Caleb Toxey against H. W. Garrow and others. Judgment for plaintiff and defendants appeal. The afterwards acquired title of Gazzam derived under the patent did not inure to the benefit of his grantee Wragg, as he held under a quit claim deed. — Tillson v. Kennedy, 5 Ala. 407; Tuttoiler v. Tenn. Co., 108 Ala. 484; Frost v. Missionary Society, 56 Mich. 89.

Appear from Monroe Circuit Court. Heard before Hon. John T. Lackland. Ejectment by Sidney E. Riley against Prank Boon and others. Judgment for -plaintiff and defendant appeals. The case was set down for hearing within the meaning of rule 28, Ch. Pr., and it was dismissed within the rule and such dismissal may be-pleaded in bar. — Howard v. Bugloy, 25 Ala. 548; Lanier v. Hill, 30 Ala. 111.

Mobile Law and Equity Court. Heard before Hon. Saffold Berney. Ejectment by Laura Fowler and another against William H. Powers, in which Irene Pritchard intervened as landlord, and defends. Judgment for plaintiffs, and defendants appeal. The judgment was rendered October 15, 1909, and the bill of exceptions was signed December 27th following. Motion to strike bill of excep tions because not signed within the time.