Volume 172 — Alabama Reports

Ejectment. Appeal from Coffee Circuit Court. Heard before Hon. H. A. Pearce. Ejectment by C. T. Russell against S. F. Parrish. Judgment for plaintiff and defendant appeals. The certificate that is attacked is appended to a mortgage executed by Parrish and wife to Russell, and seems to be in proper form.

Ejectment. Appeal from Blount Circuit Court. Heard before Hon. John W. Inzer. Ejectment by C. M. Hill against W. J. King. Judgment for plaintiff and defendant appeals. The court does not contemplate that the notices to non residents should be the same as to residents in a tax sale. The notice by publication is provided and that is all that is necessary.

Ejectment. Appeal from Coffee Circuit Court. Heard before Hou. H. A. Pearce. Ejectment by John Spears against Lon Wise. Plaintiff’s death having been suggested, the cause was revived in the name of his heirs. Judgment for plaintiff’s, and defendant appeals.

Ejectment. Appeal from Birmingham City Court. Heard before Hon. O. C. Nesmith. ■ Ejectment by Alice Hodges against William Hodges. Judgment for plaintiff and defendant appeals. The possession of the lands by the appellant and her husband prior to the possession of the appellees, or either of them, was sufficient to support an action of ejectment.

<p> Ejectment. </p> <p>Appeal from Elmore Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Ejectment by Pinkie Holtzclaw and others, against D. Miley. Judgment for defendant and plaintiff appeals.</p> <p>The assignment was not sufficient to convey the legal title, and the defendant claiming under the assignment acquired no legal title. — Graham v. Newman, 21 Ala. 496; Sanderson v. Oassidy, 5 South. 503; Langley v. Andrew®, 31 South. 469; N. E. M. S. Co. v. Clayton, 24 South. 362.</p> <p>The assignment was sufficient. — Ward v. Ward, 108 Ala. 278; Langley v. Andrexos, 31 South. 469. The bill of exceptions does not purport to set out all the evidence, and hence, the action of the court in refusing the affirmative charge will not be reviewed. — Hxidson G: Go. Gase, 105 Ala. 201. By an insistence only on the insufficiency of the transfer, appellant waived the other assignments of error. —Daniel v. Bradford, 132 Ala.' 262.</p>

Ejectment. Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Ejectment by Emma C. Williams and others, against Joseph E. Tapia. Judgment for plaintiffs and defendant appeals. The Baptiste patent was admissible for two purposes: 1st, to show that the government had no title to convey to Eslava as it had already conveyed to Baptiste, and 2nd, that the patent of Baptiste showed an outstanding title in another. — Dodge v. I. L. Go., 158 Ala. 95.

Ejectment. Appeal from Montgomery City Court. Heard before Hón. William H. Thomas. Ejectment by Miclde Lee, et al., against Mary Poster and others. Judgment for. the plaintiffs and the defendants appeal. That a legitimate child of a bastard cannot inherit from the bastard’s mother, is expressly decided in unequivocal terms in the following cases. See Croan v. Phelps, 23 L. R. A. 753; Curtis v. Hemns, 11 Mass. 294; Steckels Appeal, 64 Pa.

Ejectment. Appeal, from Walker Law and Equity Court. Heard before Hon. Thomas W. Wert. Ejectment by W. G. Terry and others against Charlie Hood and others. From a judgment for defendants, plaintiffs appeal. The Avill is as folloAvs: “State of Alabama, Morgan County.

<p> Ejectment. </p> <p>Appeal from Bibb Circuit Court.</p> <p>Heard before Hon. B. M. Miller.</p> <p>Ejectment by M. M. Head against J. W. Hunnicutt. Judgment for defendant, and plaintiff appeals.</p> <p>The controversy seems to be to recover the western one-third of a lot upon which is situated a commissary of the Hunnicutt Lumber Company and the stables of J. W. Hunnicutt. The lot is described as 1 1/3 acres in the S. W. % of the S. E. section 28, township 23, range 10 E., in Bibb county, Ala., beginning at the southeast corner of the Sandy Church lot on the north side of Randolph and Centerville public roads; thence north along said church lot line 55 yards; thence east 132 yards; thence south 55 yards; thence west 132 yards to the point of beginning. It seems that J. M. Hunnicutt and W. A. Neal owned all the stock of the Hunnicutt-Neal Lumber Company, and desired to divide their property, each owning and controlling one-half of the capital stock of the company, and in pursuance thereof entered into the following agreement:</p> <p>“That, whereas, the said parties hereto own and control all of the capital stock of the Hunnicutt-Neal Lumber Company, a corporation, each owning and controlling one-half thereof, and the other property hereinafter named, and desirous of dividing their interest, so that one of said parties may acquire all of the capital stock, and therefore the' exclusive control of said company, and to further effect a division of their other property and a part of the corporate property, do hereby mutually agree: (1) That J. W. Hunnicutt will have until noon of the 20th day of November, 1907, to accept by written indorsement thereon or by a separate paper writing the certain properties described in either of the items hereto annexed, marked items No. 1 and No. 2, leaving the property in the other said items to the said W. A. Neal. If the said Hunnicutt shall fail by noon of said day to make known as aforesaid which of said items he accepts, then said Neal may select any one of such items after noon of said day and before noon of November 25, 1907, by indorsement thereon or by separate paper writing, and the other of said items shall belong to said J. W. Hunnicutt. The said items, and also item No. 3 hereto annexed, are hereby referred to and made a part of this agreement. Immediately after this agreement becomes binding by indorsement hereon or by separate paper writing the Hunnicutt-Neal Lumber Company shall convey to J. W. Hunnicutt and W. A. Neal jointly the lands and timber rights mentioned in item No. 2, and the party who under the- provision provided in this agreement becomes entitled to the property and rights described in item No. 1 shall convey to^ the other an undivided half interest in the lands mentioned in item No. 2 for the consideration of $13,500, which general warranty, such sum representing the estimated value of such interest in said land, and the said Hunni-cutt-Neal Lumber Company shall transfer to- said party becoming entitled to item No. 2, the Lathrop Lumber Company’s note, indorsing the same without recourse, and other lights mentioned in item No. 2. (2) The party becoming entitled to the property described in item No. 1, the other party will cause the transfer of one-half of the capital stock of the Hunnicutt-Neal Lumber Company. The lands in Cleburne and Tuscaloosa counties owned by the Hunnicutt Lumber Company are to be conveyed by the said company to J. W. Hunnicutt and W. A. Neal jointly, and the party becoming entitled to item No. 2 shall convey the same to the party acquiring item No. 1 (or to the HunnicuttNeal Lumber Company) an undivided half interest in said lands, and an undivided third interest in the lands in Cleburne county owned by J. W. Hunnicutt and W. A. Neal, jointly (Crider, Herren, Evans, Jackson, Shackelford, and Wheeler lands; Vaughan retaining his interest), and an undivided one-half interest in the Anna Howe extension interest held in the name of B. W. Vaughan, with good and sufficient warranty, the deed to recite the consideration of $9,750, being the estimated value of such interest in said land.</p> <p>“Item No. 1. All the capital stock of the HhnnicuttNeal Lumber Company; the lands in Cleburne county known as tbe Crider, Herren, Evans, Jackson, Shackelford, and Wheeler lands, two-thirds undivided interest; tbe Woodstock Iron Company lands; tbe interest in tbe Anna Howe extension land held by W. A. Neal, J. W. Hunnicutt, D. W. Vaughan, with tbe lands in Tuscaloosa county known as the Derrett lands — tbe party acquiring this item No. 1 to have just such rights as regards this land (the Derrett land) as tbe company now has — may buy tbe land and acquire tbe title or retain tbe money to be applied to such persons, if not made, which is agreed to be left in tbe treasury of tbe company ($3,000) for that purpose. Tbe party accepting this item is to have tbe $500 which is with tbe First National Bank of Tuscaloosa, Ala.; a sufficient amount of cash now on band, and, if not sufficient cash on band, it shall be supplemented by notes, accounts, and bills receivable to pay the debts of tbe company up to tbe date of the transfer; the money in bank to be treated as cash or as an account at tbe election of tbe party acquiring item No. 1. This item is also to include any other interest in tbe said Anna Howe extension held by said Hunnicutt and Neal; also all tbe lands and timber rights held in the names of Hunnicutt & Neal, W. A. Neal, and J. W. Hunnicutt, situated in Bibb county, Alabama, to be conveyed without warranty; all tbe lands in Tusca.loosa county owned by tbe Hunnicutt-Neal Lumber Company (additional to tbe Derrett lands above mentioned) included in this item.</p> <p>“Item No. 2. All tbe lands and timber rights in Tallapoosa, Elmore, Blount, and Jefferson counties owned by tbe Hunnicutt-Neal Lumber Company on tbe date of tbe acceptance of the proposition to- which this item is annexed as a part; also notes Nos. 4 to 14, both inclusive, each for $1,000, on Lathrop Lumber Company; also the right of the said company to the $500 left with Attorney Lull at Wetumpka, or the company’s right to the land which was to be purchased with this money.</p> <p>“Item No. 3 includes all notes, accounts, and bills receivable and cash not covered by items 1 or 2 owned by the Hunnicutt-Neal Lumber Company, collected by either party, etc., and all lumber on hand.”</p> <p>On November 15,1907, J. W. Hunnicutt filed his written choice of the properties described in item 1, which was approved by W. A. Neal on the same date. On the same day W. A. Neal and wife executed to J. W. Hunnicutt, without warranty of title, a deed to the following land: N. W. % of S. E. %, section 6, township 23, range 9 E., the W. % of N. W. % of S. E. % and the S, W. % of section 15, and the S. E. % of section 16, and the N. E. % of the N. W. % of section 22, township' 23, range 10 E., and all timber rights and easements owned by Hunnicutt & Neal, a partnership composed of J. W. Hunnicutt and W. A. Neal, and all timber rights and easements owned by Hunnicutt and Neal jointly on lands in Bibb county, Ala.; the purpose of this conveyance being a conveyance by the grantors of their entire interest in real estate and timber rights in Bibb county, Ala., to the grantee without warranty of title. On the 22d day of August, 1898, Victoria. G. and James N. Brown conveyed to W. A. Neal, by deed with full covenants of warranty the following real estate: Beginning at stake north of public road at corner of graveyard lot, running east, north of public road, 390 feet to stake; thence north 165 feet to stake; thence west 390 feet to stake; thence south 165 feet to the beginning point, containing iy2 acres, more or less, situated in Bibb county, Ala. On September 26, 1908, W. A. Neal and wife executed to M. M. Head a deed with full covenants of warranty to the following described property: One lot upon which the residence of W. A. Neal and other buildings' and all appurtenances near Vick post office are now located, and more particularly described as follows: Beginning at southeast corner of Sandy Church lot, north side of the Bandolpb and Centerville public roads, along said church lot 55 yards; thence easterly 132 yards; thence south 55 yards; thence west 132 yards; thence south 55~yards; thence west 132 yards, to the point of beginning, located in the S. W. % of S. E. %, section 28, township1 23, range 10, and containing 1% acres, more or less. The testimony tended to- show that the lot described in the deed from Brown to Neal was the same as that described in the deed from Neal to Head.</p> <p>The sole point in this case is the proper construction to be placed upon the deed of Neal and wife to Hunnicutt. As to the proper rules of construction see. — Campbell v. Gilbert, 57 Ala. 570; Dickson v. VanHoose, 47 South. 720; 110 Ala. 394; May v. Ritchie, 65 Ala. 602; 17 A. & E. Enc. of Law, 2. The question then is not what the parties may have meant or intended, but what is the meaning of the words which they have used,-which is taken as an important distinction. — 58 Ala. 636; 79 Ala. 516; 17 A. & E. Enc. of Law, 2. The whole instrument must be considered rather than any particular clause. —Brush E. L. Co. v. Montgomery, 114 Ala. 433. The doctrine of ejusdem genaris applies. — 17 A. & E. Enc. 6; Going v. Hilton, 95 Ala. 591; 13 Cyc. 616; Dickson v. VanHoose, supra. From these authorities it follows that the deed conveyed only the joint or firm rights of the individuals composing the corporation and not of lands owned separately by them.</p> <p>Parol evidence is not admissible to cure a patent ambiguity. — Chambers v. Ringtsaff, 69 Ala. 140; Dane v. Glennon, 72 Ala. 160; Dixon v. Letois, 144 Ala. 459. It is the duty of the court to declare the meaning of what is written, and not what was intended to be written. — Gidlmartin v. Wood, 76 Ala. 204. The doubtful terms of the contracts are construed most strongly against the promissor. — Beay v. McCormick, 68 Ala. 549; Chambers v. -Ringstaff} sv/pra.</p>

<p> Ejectment. </p> <p>Appeal from' Gadsden City Court.</p> <p>Heard before Hon. John H. Disque.</p> <p>Action of ejectment by the city of Gadsden against Thamer J. Strother to recover possession of certain streets, etc. Judgment for defendant and plaintiff appeals.</p> <p>The municipality had a right to recover or at least maintain ejectment to recover one of its streets. — T. é 0. B. B. do. v. E. A. B. B. Co., 75 Ala. 516;-125 Ala. 196; 10 A. & E. Enc. of Law, 475; 15 Cyc. 27. The street had become dedicated to a public use. — Jackson v. Birmingham F. & M. Co., 154 Ala. 464; Weiss v. Taylor, 144 Ala. 447; Beid v. Birmingham, 92 Ala. 339; E. B. B. Co. v. Bir. F. Co., 49 South. 449; Webb v. Demopolis, 95 Ala. 126; Smith x>. City of Opelika, 51 South. 823. When the dedication is completed, the owner cannot annex a condition. — Chambers v. Talladega B. é E. Co., 126 Ala. 297; 2 Devlin on Deeds, secs. 958 and 970; 13 Cyc. 692; Miler v. Swann, 89 Ala. 631. Defendant is estopped by the recitals of her deeds to deny dedication. — Beid v. M. & A. of Bharn, 92 Ala. 339.</p> <p>The dedication was not complete, hut was conditional on the happening of certain things which the testimony showed never happened. Such a dedication may be made, and before there can he a complete dedication its terms must be strictly complied with. — 13 Cyc. 459-460; 71 111. 68; 97 Mo. 644; 64 Cal. 498; 127 Mich. 454; 8 Mete. 238.</p>

Ejectment. Appeal from Birmingham City Court. Heard before Hon. C. C. Nesmitpl Action by Gretchel McCann against Bessie Ellis and others. From a judgment for defendants, plaintiff appeals.

Ejectment. Ejectment by W. W. Kirkland against W. J. Wilson and others. Kirkland having died pending the suit, the action was revived in the name of Laura Kirkland as executrix who was also a devisee under the will. Judgment for plaintiff and defendants appeal.

<p> Ejectment. </p> <p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. James J. Bay.</p> <p>Ejectment by J. W. Bush against John Thomas. Judgment for defendant, and plaintiff appeals.</p> <p>It is deemed unnecessary to set out the pleas and replications. The plaintiff claimed through a mortgage executed by David Pratt to Stephen A. Ellis. It does-not appear from the record that there was any foreclosure of said mortgage, but that the heirs of Stephen A. Ellis sought partition of this land, and had it divided and sold. At the sale under partition, Louise Lewis became the purchaser, and received a deed from the commissioner. Lewis conveyed to Wilson, and Wilson to plaintiff. Thomas claims through David Pratt.</p> <p>Counsel discuss the assignments of error relative to the action of the court upon 'the pleadings, but without citation of authority. Counsel further insist that in an action of ejectment the court deals solely with the legal title and that a mortgage is a deed, and that the title passed absolutely under the mortgage, and hence, the contention of the defendant that the court was without jurisdiction to partition was not available as a defense. — Welch v. Phillips, 54 Ala. 809; Toomer v. Randolph, 60 Ala. 356; Marks v. Robmson, 82 Ala. 77; High v. Hoffman, 129 Ala. 359. The plaintiff’s undisputed testimony showed that he had acquired title by adverse possession.— Brand v. U. 8. Gar Go., 128 Ala. 578.</p> <p>The partition proceedings did not affect the title to the property as the property had become reinvested in the mortgagor by the payment of the mortgage. The probate court was without jurisdiction to partition the interest of the deceased mortgagee. — Moorer v. Moorer, 85 Ala. 353; Kelly v. Deegan, 111 Ala. 156; 30 Cyc. 194; 5 Mete. 1; 27 Ore. 45. The title to the mortgage indebtedness vested in the administrator. — Sec. 2579, Code 1907.</p>

<p> Ejectment. </p> <p>Appeal from Crenshaw Circuit Court.</p> <p>Heard before Hon. J. C. Richardson.</p> <p>Ejectment by Steiner & Lobman against John Smith. Judgment for plaintiff and defendant appeals.</p> <p>The patent was not admissible in evidence as it was not recorded, and even if it was admissible it was not binding on the defendant, as there was no evidence connecting appellee or those under whom they claim with it. — Kndbe v. Burden, 88 Ala. 439; Sec. 3380, Code 1907. The deed of Flowers was a mortgagee’s deed, and bears no evidence that the conditions had been complied with, and the appellant is not bound by the recitals in said mortgage or in said deed. — Wood v. Lake, 62 Ala. 489; Naugher v. Sparks, 110 Ala. 572. The deed from the Farley National Bank was not properly executed, as the seal of the corporation was not attached, and no written authority was shown to make the deed or to authorize the president to execute it. — Am. S. & L. Assn. v. Smith, 122 Ala. 505; Norton v. Ala. Nat. Bank, 102 Ala. 420; Swann & Billups v. Miller, 82 Ala. 530; Ware v. Swann & Billups, 79 Ala. 330; Swann v. Gaston, 87 Ala. 569. The burden was on the plaintiff to make out their case, and they did not do so. — Florence B. & I. Assn. v. Scholl, 107 Ala. 531; T. O. I. & R. R. Go. v. Tutwiler, 108 Ala. 483. A mere color of title without actual possession of some part of the premises will not support ejectment even against a trespasser, and appellant is not a trespasser.- — Gist v. Beaumont, 104 Ala. 852; Alexander v. Savage, 90 Ala: 383; Black v. T. G. I. & R. R. Go., 93 Ala. 259; Stovall v. Foioler, 72 Ala. 78. The court erred in excluding the evidence as to the possession of the defendant. — Steed v. Knoieles, '97 Ala. 578; Fagle Go. v. Gibson, 62 Ala. 372. The defendant was in the adverse possession of the land when the deed from the Parley National Bank to Steiner & Lobman was executed, and the court should .have excluded it. — Murray v. Hoyle, 92 Ala. 559; Propst v. Busch, 115 Ala. 495; Jackson v. Singleton, 122. Ala. 325; Lower v. Baker, 141 Ala. 602. It follows, therefore, that the court erred .in giving the affirmative charge for the plaintiff as under the evidence, they were barred’ by the statute of limitation. — Bozeman v. Bozeman, 82 Ala. 389; s. c. 83 Ala. 416; Sec. 4834, Code 1907.</p> <p>A copy of the patent was admissible in evidence.— Woodstock I. Go. v. Roberts, 87 Ala. 436; Beasley v. Glark, 102 Ala. 254; Secs. 3979, 3980 and 4000, Code 1907. Possession or occupancy of land is a fact that a witness may testify to. — Eagle Go. v. Gibson, 62 Ala. 369; Woodstock Go. v. Roberts, supra; Steed v. Knowles, 97 Ala. 573. A general objection to evidence is properly overruled; 3 Mayf. 575. Where a party is in possession under it, a void -deed is admissible to show claim tinder color of title. — Gist v. Beaumont, 104 Ala. 350. The defendant was not in adverse possession because of a failure to file notice as required by sec. 1541, Code 1896. — Scales v. Otts, 127 Ala. 582. The defend,ant was a simple trespasser, and- when appellee showed actual possession to a part of this 40, the appellee’s deed became admissible and sufficient to- show possession of the entire 40. — Bolling v. M. & O. R. R. Go., 128 Ala. 555 and authorities there cited. Being a trespasser, defendant could not set up that the deeds to appellee were void as to him. — Sec. 8839, Code 1907; 3 Mayf. 118.</p>

Ejectment. Appeal from Birmingham City Court. Heard before Hon. C. C. Nesmith. Ejectment by W. J. Grant and others against A. L. Nations. Judgment for defendant and plaintiffs appeal.

Ejectment. Appeal from Monroe Circuit Court. Heard before Hon. John T. Lackland. Ejectment by the Stephen-Putney Shoe Company against William Wilburn White, as landlord, substituted. Judgment for defendant, and plaintiff appeals. The facts seem to be that the appellant secured on October 14, 1908, a. judgment on open account against W. S. Gay and M. A. McNeal, partners under the firm name of W. S. Gay Lumber Company.

<p>1. Appeal and Error; Judgment; New Trial; Bill of Exceptions. —No formal judgment is necessary in overruling the motion for a new trial, and such judgment need not be in the record, but is sufficiently shown if it appears in the bill of exceptions.</p> <p>2. Bills of exceptions. — The provisions of section 3019, Code 1907, are mandatory, as to the time-of filing bills of exceptions, and if it does not affirmatively appear that the bill of exceptions was presented within ninety days from the date of the judgment, it will be stricken.</p>

<p> Ejectment. </p> <p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. A. O. Lane.</p> <p>Ejectment by the Republic Iron & Steel Company against Tinie H. Shit. Judgment for plaintiff and defendant appeals.</p> <p>Where there is a conflict in the evidence on a material issue, the affirmative charge should never he given.- — Montón- v. L. & N., 128 Ala. 549; McCormack v. Lowe, 151 Ala, 311. T'he plat of the land was admissible in evidence. — Stiff v. Cobb, 126 Ala. 388; Baron v. Baron, 122 Ala. 196; McCrary v. Jackson L. Co., 148 Ala. 252; Driver v. King, 145 Ala. 585; Theodore L. Co. v. Ly-on, 41 South. 683. Where possession is, shown to have existed at one time, it is- presumed to be continuous. — Hollingsworth v. Walker, 98 Ala. 542. Counsel discuss other assignments, but without citation of authority.</p> <p>The acts attempted to be shown by the defendant do not constitute adverse possession. — Stevenson v. Anderson, 8'7 Ala. 228; 2 Cyc. 379; 61 N. Y. 70; Taylor v. Fomby, 116 Ala. 626; Barnett y. Kelly, 131 Ala. 378; Bernstein ' v. Humes, 75 Ala-. 244. Counsel for appellant has over- • looked the provisions of section 2830, Code 1907.</p>

Ejectment. Appeal from Birmingham City Court. Heard before,Hon. C. C. Nesmith. Statutory ejectment by Willis A. Lester against J. W„ Walker. Judgment for defendant, and plaintiff appeals. Tbe plaintiff relied upon deeds • executed to him by John H. Williams as to certain lots, and by W. C. Terry as to others, and upon the payment of the purchase money, together with deeds conveying the property to his grantor.

Forcible Entry and Detainer. Appeal from Birmingham City Court. Heard before Hon. H. A. Sharpe. Forcible entry and detainer by the Victor Realty Company against Charles Argumanian and others. Judgment for defendants and plaintiffs appeal. Counsel discuss the assignments of error relative to the admission and exclusion of evidence but without citation of authority. The plaintiff was entitled to a judgment under the facts.- — Knowles v. Ogletree, 96 Ala.

Detinue. Appeal from Crenshaw Circuit Court. Heard before Hon. J. C. Bichardson. Detinue by the Albert Hass Lumber Company against J. W. Gibson. From a judgment dismissing the suit for noncompliance with an order of court, plaintiffs appeal. On July 8, 1909, the defendant filed interrogatories to the plaintiff, under section 4049 et seq. of the Code of 1907, and a copy of these interrogatories was on the 12th day of July, 1909, filed upon the attorney of record of plaintiff.

Detinue. Appeal from Morgan Law and Equity Court. Heard before Hon. Th'omas W. Wert. Detinue by H. P. Vest and another, against W. A. Culver. Judgment for defendant and plaintiffs appeal.- The property sued for had been levied upon by the defendant, W. A. Culver, as constable, under and by virtue of an execution in his hands issued out of the justice court of J. C. Hogan.

Detinue. Appeal from Macon Circuit Court. Heard before Hon. S. L. Brewer. Detinue by J. W. Torbert against Sam McFarland. From a judgment for defendant, plaintiff appeals. The pleas were non detinet, and that tbe property sued for was claimed by plaintiff under a mortgage, and be suggests that tbe jury ascertain tbe amount of tbe mortgage debt, if any there be due from tbe defendant to tbe plaintiff under said mortgage.

Mandamus. Appeal from Gadsden Gity Court. Heard before Hon. John H. Disque. Mandamus by tbe State, on tbe relation of tbe Gity of Gadsden, against tbe Alabama City, Gadsden & Attalla Railway Company. From a judgment sustaining demurrers to tbe petition, defendant appeals.

Mandamus. Original petition in the Supreme Court. Petition for mandamus by M. F. Parker and another, to compel the city court of Bessemer to vacate an order setting aside a judgment nil dicit.

Mandamus. Appeal from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Mandamus by the State of Alabama on the relation of the City of Birmingham against the Board of Revenue of Jefferson county. From an order granting the writ the Board of Revenue appeals.

Mandamus. -Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Mandamus by the State on the relation of John S:. Drago, sheriff, against the Board of Revenue and Road Commissioners of Mobile County, to compel them to issue their warrant upon the County Treasurer, to pay out of the general fund of the county, certain sheriff’s fees for summoning witnesses to appear before the grand jury in cases where no indictment was. found.

<p> Mandamus. </p> <p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Mandamus by D. D. Askew as Solicitor, against W. W. Brandon, as Auditor, to require bim to issue a warrant for tbe difference between tbe salary paid Askew as Solicitor, and tlie sum paid other Circuit Solicitors. From an order granting the prayer of the petitioner, the Auditor appeals.</p> <p>It is not essential under section 64, Constitution 1901, that the House or Senate Journals show that the hill as amended was passed in its entirety. The requirement is that the Journal of the House adopting the amendment simply show its adoption. — State v. Porter, 148 Ala. 541. It is not required by section 125 of the Constitution that the legislature adopt the proposal of the Governor, as proposed by the Governor, verbatim. It is sufficient if it be substantially the same. State ex ret. v. Martin, 160 Ala. 181. General Acts 1907, p. 255, was not repealed as to salaries by General Acts 1907, p. 367. The Act fixing the salary was not void because the salaries of circuit solicitors was fixed by section 5527 of the Code of 1907, nor is the act in contravention of section 105, and sections 96 and 104 of the Constitution. — Sec. 167, and 281, Constitution 1907; Jackson Coimty v. Derrick, 117 Ala. 348; Ex pao~te Kelly, 153 Ala. 168; City of Eoisley v. Simpsoov, 160 Ala.</p> <p>The Act of March 7, 1907, was a local law. — State ex rel. Attorneoj G-eoieral v. Sayre, ■142 Ala. 641. This act was unconstitutionally passed for the reasons that the Senate after the adoption of the House amendment, did not pass the bill as amended, and neither the Senate nor the House after the adoption of the amendment proposed by the governor passed the bill as a whole. — Secs. 125 and 64, Constitution 1901. The Act of March 2, 1907, was repealed by Act of March 6, 1907. — Proull r>. The State, 142 Ala. 80; Eclson v. The State, 134 Ala. 50; 64 Miss. 541. The salary of a public officer cannot be fixed by a public act where there is a general law covering the subject. — Sections 96 and 104, Constitution 1901; 19 Cyc. 464, and cases cited; Fabers v. Glass, 22 Ala. 621; Wetunvpka v. Winter, 29 Ala. 651. The Act of March 2 is repugnant to section 105, Constitution 1901; Oity Council of Montgomery v. Reese, 149 Ala. 188; McWhorter v. Lowndes County, 52 South. 750; Norwood v. Goldsmith, 53 South. 84; Griffin v. Drermen, 145 Ala. 128.</p>

<p>1. Equity; Pleas; Joinder of Issue.- -Under the influence of the statute dispensing with replications to answers, issue on pleas to a bill is treated as joined without anything being done by complainant.</p> <p>2. Same; Admissions. — All averments of a bill not expressly denied by plea to the whole bill stands as if expressly admitted.</p> <p>3. Same; Statute. — The provisions of section 3115, Code 1907, apply to all pleas, whether so incorporated in the answer or not.</p> <p>4. Same; Reference; Disposition of Pleas. — Where a complainant has not chosen to test the sufficiency of the pleas and the respondent has not chosen to answer and to take no testimony in support of his pleas, the Chancellor, without an opportunity to decree on the materiality or sufficiency of the pleas, but deeming them insufficient, and regarding a submission of them on their truth useless, and also regarding the allegations of the bill as substantially admitted by the pleas, may under the provisions of section 3115, refer the cause to a register to state an account.</p> <p>5. Mandamus; Proceedings; Laches. — While the statute of limitations does not apply to applications for writs of mandamus, the principle that the court in exercising its discretion regarding the. issuance of the writ will be guided by analogy of the statute, while obtaining where enforcement of a substantial and independent right is sought by the writ, does not obtain where control is sought of a mere dependent rule of practice or method uf procedure; in such a case, application must be promptly made.</p> <p>6. Same. — A petition for mandamus to compel a Chancellor to set aside an order of reference to the register to state an account, because made without a prior submission of the cause on the pleas is subject to the bar of laches; especially, where the order had been abided for more than a year, and until after evidence had been taken and the account stated, as such procedure cannot result in the denial of any substantial right under the pleas,, the sufficiency and truth of which must be determined at the final submission of the cause.</p>

<p>1.Bail; Pending Appeal; Judge of Court. — Acts 1909, p. 62, amending section 6262, Code 1907, in referring to the judge or court lias reference to the supreme or appellate judge or court issuing the writ of error.</p> <p>2. Same; Criminal Prosecution; Statutory Provision. — Construing together the provisions of chapter 162, Code 1907, it is held that the act of 1909, amending section 6262, Code 1907, has no application to appeals in felony cases. (This rule has been changed by Acts 1911.)</p> <p>3. Statutes; Title; Beginning of Section. — The title at the beginning of a section of the Code is not a part of the section, and a change thereof will not affect the construction to be placed on the section from its positions and relation to other . existing sections. (McClellan, J., dissents.)</p>

Mandamus. Original petition in the Supreme Court. Petition by J. W. Jones for mandamus directed to E. S. Lyman, Judge, to require him to vacate certain inter- ■ locutory orders or decrees. When the fact of marriage is denied, no alimony or suit money pendente lite can be awarded until proof is made of such relation. —State ex rel. Lloyd, 25 L. R. A. (N. S.) 387; Oaste v. Madison, 113 Wis. 346; Jeter v. Jeter, 36 Ala. 391; Hughes v. Hughes, 44 Ala. 698; 1 Ene.

Mandamus. Appeal from Jefferson Circuit Court. Heard, before Hon. A. A: Coleman. Mandamus by the State on the relation of C. C. Ellis, a justice of the peace, against the Board of Revenue of Jefferson County, and others, to compel the hoard to allow and pay certain claims for costs. Judgment for respondents and relator appeals. Execution or bond issue proceedings upon a judgment obtained against the county are not authorized by law. — Edmundson v. DeKalb County, 51 Ala. 107.

Mandamus. Appeal from Mobile Law and Equity Court. Heard before Hon. Saffold Bmrnet. Petition by David D. Langan against the City Bank & Trust Company for a peremptory writ of mandamus to compel such depository to pay petitioner $.500, the semiannual installment of his salary as city tax collector. Prom an order granting the petition, respondent appeals.

Mcmdamus. Original petition in the Supreme Court. Mandamus by J. W. Shepherd directed to the judge of the Fourteenth judicial circuit, requiring him to dismiss a petition filed in an election contest. The petition does not comply as to statement of ground with section 415, Code 1907, and hence, was insufficient, and should be stricken.

Mandamus. Appeal from Cullman Circuit Court. Heard before Hou. D. W. Speake. Petition by C. W. Bryce for mandamus against R. I. Burke, Judge of Probate, requiring him to certify bis incompetency to try a certain contested election. From an order denying tbe writ, petitioner appeals.

Quo Warranto. Appeal from Montgomery Circuit Court. Heard before Hon. W. W. Pearson. Quo- warranto by the State on the relation of C. E. White, against the Citizens Light & Power Company. Decree for respondents and the relator appeals.

Quo Warranto. Appeal from Coffee Circuit Court. Heard before Hon. H. A. Pearce. Quo warranto by the State on the relation of A. V. Buck and others, against J. N. Ham, to try title to office. From a judgment dismissing the petition, and taxing each party with his own cost, respondent appeals.

Prohibition.. Appeal from Washington Circuit Court. Heard before Hon. Samuel B. Browne. Petition by the State of Alabama, on the relation of the Fairford Lumber Company, a corporation, and others, against the Court of County - Commissioners of Washington County and the individual members thereof, to restrain the said court of county commissioners from levying and collecting a certain'tax. From an order granting the petition, respondents appeal.

Probate of Will. Appeal from Lauderdale Probate Court. Heard before Hon. John L. Hugi-iston. Application by W. M. Whitsett and others for the probate of the will of Martha Higgins, deceased, to which a contest was filed by J. J. Belue and others. Probate denied, and proponents appeal. It appears that, in the drawing of the. jury, 18 were drawn, but only 13 appeared.

Petition to Annul Letters of Administration. Appeal from Jefferson Probate Court. Heard before Hod! J. P. Stiles. .Application by Mathew Childs to set aside and annul letters of administration granted to G. W. Davis. From a judgment denying his petition, said Childs appeals.

Contest of Final Settlement of Estate. Appeal from Mobile Probate Court. Heard before Hon. Price Williams, Jr. Petition by Elizabeth McEvoy McArdle, as executrix of the last will and testament of Ann McEvoy, deceased, for final settlement of the estate. On motion of Frederick G. Bromberg, guardian ad litem of the minor heirs, to charge executrix with a certain sum, and to disallow each and every item of credit.

Appointment of Guardian for Insane Person. Appeal from Montgomery Probate Court. Heard before Hon. J. B. Gaston. Proceedings in tbe probate court for tbe appointment of a guardian for Terry J. Toole, a non compos. From a decree appointing Frank D. Kobn as sucb guardian, Annie U. Boylan appeals. Under tbe provision of section 4359 and 4360, tbe court should bave appointed tbe nearest of kin wbo was tbe sister. — Williams v. McOonmco, 27 Ala. 574.

Probate of-Will. Appeal from Clay Probate Court. Heard before Hou. F. J. Ingram. W. A. Conoway propounded tbe last will and testament of William A. Yancey for probate, and its admission to probate was contested by Sallie A. Fulmer and others. From a decree holding that the paper offered for probate is not a will, W. A. Conoway appeals.

Petition to Revoke Letters of Administration. ' Appeal from Jefferson Probate Court. Heard before Hon. S. E. Gkbene. Petition by Frank Carpigiani as consular agent for the removal of E. D. Hall and another as administrators of the estate of Francesco Santangelo, deceased, and for the appointment of petitioner in their stead. From a decree sustaining demurrers to the petition, petitioner appeals.

Contest of Probate of Will. Appeal from Maclison Probate Court. . Heard before Hon. W. T. Lawler. S. J. Mayhew propounded for probate a will, which was contested by William L. Councill. From a judgment admitting the will to probate, the contestant appeals. The facts and the exceptions to evidence sufficiently appear from the opinion.

Eminent Domain. Appeal from. Mobile Circuit Court. Heard before Hon. Samuel B. Br'owne. Application by the Mobile & Birmingham Railway Company to condemn a way across property’ of the L. & N. R. R. Co. There was judgment of condemnation, which on motion of respondent was set aside,’ and a new trial granted, from which petitioner appeals.

Taw Proceedings. Appeal from Mobile Law and Equity Court. Heard before Hon. SafFold Berney. Proceedings by tbe State against Mrs. Anna M. Hall, to reassess her property for taxation. From a judgment for Mrs. Hall, tbe State appeals. The law relative to taxation will be found in sections 2108-2152, Code 1907, and the court was in error in permitting the witness to show that other property was given in at an assessed value of 60% of its real value.

Supersedeas. Supersedeas; .Scope of Remedy. — The province of a writ of supersedeas is to prevent an abuse of the court’s processes; hence, where a defendant has lost the fruits of his appeals through failure of the trial court to properly endorse its bill of exceptions, it may not have the execution authorizel by the judgment strperseded, and require the other parties to try over the case, as this would amount to setting aside the judgment. Appeal from Marengo Circuit Court.

Quo Warranto. Appeal from Madison Circuit Court. Heard before Hon. D. W. Speak®. Action in the nature of quo warranto against Tancred Betts, to determine who held the office of judge of the Madison Law and Equity Court. Judgment for petitioner, and respondent appeals. The controversy lies over the construction of section 4, Local Law 1907, p. 189, in connection with section 1463, Code 1907, and section 336, Code 1907.

Exemption Contest. Appeal from Cherokee Circuit Court. Heard before Hon. W. W. Haralson. Claim of exemption and contest between Pinckard & Lay, execution plaintiffs, and J. A. Freeman and Garry Freeman, execution defendants. From a judgment sustaining demurrer to the contest, and dismissing same, the execution plaintiffs appeal.

Petition to Vacate Judgment. Appeal from Shelby Circuit Court. Heard before Hon. John Pelham. Petition by the Mayor and Council of the City of Columbiana to vacate a judgment rendered against petitioner in favor of J. W. Kelley & Co. From a judgment sustaining demurrers to the petition, and dismissing the same, petitioner appeals.

Impeachment Proceedings. Original petition' in the Supreme Court. Impeachment proceedings begun by the State on the relation of the Attorney General, to remove from office P. W. Jinwright as sheriff of Bullock County, on account of negligence in permitting a prisoner to be lynched. No brief came to the Reporter. No brief came to the Reporter.

Violating Municipal Ordinance. Appeal from. Tuscaloosa. County Court. Heard before Hon. H. B. Foster. Susie McKinstry was convicted of violating an ordinance of tbe City of Tuscaloosa and sbe appeals. This is a purely criminal action and is governed by tbe constitution and laws of tbe State with reference to criminal prosecutions. — Arzumanian v. City of Birmingham, 51 S'ontb. 645; Barron v. City of Anniston, 157 Ala. 399; City of Selma v. Shivers, 160 Ala. 505; Crim.

Murder. Appeal from Ohilton Circuit Court. Heard before Hou. W. W. Pearson. Alice Sheppard was convicted of murder, and she appeals. The facts sufficiently appear in the opinion. The following charges were refused to the defendant. (1) and (2) The affirmative charges.

Murder, Appeal from Gadsden City Court. Heard before Hon. James A. Bilbro. Claude Cheney was convicted of murder, and he appeals. The defendant was indicted for hilling Sam Snyder by shooting him with a pistol. It appears from the evidence that Snyder was in appellant’s poolroom in Alabama City, and when' appellant returned from the council chamber and entered his place of business he fired rapidly three shots.

Murder. Appeal from Jefferson Criminal Court. Heard before Hon. S. L. Weaver. John Hubbard was convicted of murder in the first degree, and he appeals. Counsel insist that the Jury Law is unconstitutional and that therefore the venire should have been quashed.

<p>1. Jury; Venire; Selection; Harmless Error. — Where the court designated 70 as the number of jurors to constitute the special venire and drew 30 names from the box, while 50 names had been drawn as regular jurors for that week, 48 of whom were summoned and appeared, no error was committed prejudicial to the defendant, by putting him upon a venire composed of 78, where it appeared that after setting aside all jurors subject to challenge for cause, the defendant and State alternately struck from the remaining names on the list until 'it was reduced to 12.</p> <p>2. Appeal; Bill of Exceptions; "Necessity for. — A motion to quash the special venire and the court’s action thereon cannot be reviewed on appeal where neither the motion nor the evidence in support thereof is shown by bill of exceptions.</p>

Murder. Appeal from Jefferson Criminal Court. Heard before Hon. Samuel L. Weaver. Dave Seay was convicted of murder and he appealed. No brief came to the Reporter. Error is confessed on the authority of Jackson v. State, 171 Ala. 38.

Murder. Appeal from Mobile City Court. Heard before Hon. O. J. Semmes. J. Lawrence Odom was convicted of murder in the first degree, sentenced to death, and he appeals'.

Murder. Appeal from Anniston City Court. Heard before Hon. Thos. W. C'oleman. Leo Gilbert was convicted of murder, and sentenced to the penitentiary for life, and he appeals.

Murder. Appeal from Pike Circuit. Court. Heard before Hon. H. A. Peaece. Robert Spivey and others were convicted of murder, sentenced to the penitentiary for thirty years, and they appeal.

Murder. Appeal from Covington Circuit Court. Heard before Hon. H. A. Pearce. J. Finley Howard was convicted of murder in tbe second degree, and be appeals. The bare presumption of sanity is not sufficient to support a conviction in the face of competent and uncontradicted evidence to the contrary. — Utah v. Brown, 24 L. R. A, 545; Harris v. N. G. & St. L. Ry., 153 Ala. 139; Central of Qa. Ry. Go. v. Foshee, 125 Ala. 109.

<p> Bobbery. </p> <p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. S. L. Weaver.</p> <p>Will Harris was convicted of robbery, and lie appeals.</p>

Robbery. Appeal from Morgan Law and Equity Court. Heard before Hon. Thos. W. Wert. Rufus Henderson was convicted of robbery, and he appeals. An objection fatal on demurrer to an indictment will prevail on a motion in arrest of judgment. — Benjamin v. State, 121 Ala. 26; Francois v. State, 20 Ala. 83; Foster v. State, 39 Ala. 229; Brazier v. State, 44 Ala. 387.

Carnal Knowledge of Female Under Twelve Years. Appeal from Jefferson Criminal Court. Heard before Hon. Wm. E. Fort. William Moseley Bailey was convicted of the offense denounced by Section 7699, Code 1907, and he appeals.

Violating Prohibition Law. Appeal from Geneva County Court. Heard before Hon. E. Foster Ellsberry. Noah Johnson was convicted of selling spirituous, vinous or malt liquors contrary to law, and he appeals. The facts here shown do not constitute a sale. — Coker v. State, 91 Ala. 92. The court should have admitted the fact that the defendant was working for the purchaser of the whiskey under a criminal contract.

Action on Insurmce Policy. Appeal from Madison Law and Equity Court. Heard before Hon. Tancred Betts. Action by Alice Hereford against the Manhattan Life Insurance Company on an insurance policy. Judgment for plaintiff, and defendant appeals. We submit that under the facts in this case there was never any contract of insurance. — Powell v. Prudential Insurmce Go., 153 Ala. 611; Whiting 'v. Mass. Ins. Go., 189 Mass. 317; Russell v. Prudential Ins.

Assum/psit. Appeal from Cherokee Circuit Court. Heard before Hon. W. W. Haralson. Assumpsit by Hamilton Yancy, Jr., against M. Gordon. Judment for defendant, and plaintiff appeals. A plea of non est factum puts in issue the fact of execution only. — 5 A. & E. Ency. P. and P. 924. There was no plea of alteration, hence the court erred in admitting evidence as to what was said relative to the agreement. — Nome Protection v. Widclen, 103 Ala. 203; Singer Mfg.

A:ction on Insurance Policy. Appeal from Montgomery Circuit Court. Heard before Hon. W. W. Pearson. Action by J. C. Hunt against the Preferred Accident Insurance Co., of New York. Judgment for defendant and plaintiff appeals. Plea IS!3 is as follows: “Defendant, for answer to the complaint and each count thereof separately and- severally, pleads and says: That plaintiff made an application in writing, sighed by him, for said policy sued for.

Breach of Contract. Appeal from. Mobile Law and Equity Court. Heard before Hon. Safpold Berney. Action by John D. Mott against M. R. Jackson and otters. Judgment for defendants, and plaintiff appeals.

Assumpsit. Appeal from Madison Law and Equity Court. Heard before Hon. Tancred Betts. Action by Jennie L. Campbell against James Hughes and the American Bonding Co., of Baltimore, Md., as surety for James Hughes as administrator of the estate of John Hughes, deceased. Judgment for defendant, and plaintiff appeals. It appears that James Hughes foreclosed a mortgage which he alleged belonged to the estate of his decedent and recovered thereon the sum of five thousand dollars.

Assumpsit. Appeal from Chambers Circuit Court. Heard before Hon. S. L. Brewer. Action by one Jemigan and others, associated and doing business as the Covington County Stock Company, against W. J. Ratchford and another, late partners in the firm of Dr. A. S. Kilby & Co. From a judgment for plaintiffs, defendants appeal. The complaint is as follows: “Count 1.

Assmnpsit. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Action by the Merchants’ National Bank of La Fayette, Ind., against Thomas B. MeNaron and others, upon a promissory note. Judgment for defendants, and plaintiff appeals. The summons commanded that the defendants appear at the next term of the circuit court to be held in said county of Marshall, at Guntersville, Ala.

Assumpsit. Appeal from Montgomery City Court. Heard before Hon. Wm. H. Thomas. Assumpsit by the Exchange Nat. Bank of Montgomery against Ered C. Briel. Judgment for plaintiff and defendant appeals. Independent of the evidence showing the note to be a corporate note, the note on its face clearly showed it to be such and it was incapable of being varied or contradicted by parol evidence. — Liebscher v. Kraus, 17 Am.

Injury to Passenger. Appeal from Shelby Circuit Court. Heard before Hon. John Pelham. Action by Delia S'eale, a passenger, against the Louisville & Nashville Bailroad Company, for damages resulting to her from being carried beyond her destination. Judgment for plaintiff, and defendant appeals. The facts and the exceptions to the admission and rejection of testimony sufficiently appear from the opinion.

Injury to Passenger. Appeal from Birmingham City Court. Heard before Hon. Robert N. Bell (Special). Action by Elizabeth McCurdy against Birmingham Ry., L. & P. Co., for damages for injuries received while a passenger. Judgment for plaintiff and defendant appeals. The court erred in overruling the demurrer to the first count. — L. The first count was good as against the demurrer interposed. — Birmingham By., L. & P. Go. v. Harris, 165 Ala. 483; Selma S. & S. By.

Damage for Injury to Wife. Appeal from Birmingham City Court. Heard before Hon. H. A. Sharpe. Action by W. L. Humphries against the Birmingham Railway Light & Power Co., for injuries to his wife while a passenger on the defendant’s car. Judgment for plaintiff, and defendant appeals. Reversed and remanded. The objections to testimony sufficiently appear from the opinion. The following charges were refused to the defendant: 2.

<p>Master wild Servant; Injury to Servant; Negligence; Complaint. — The allegation in a complaint that the master negligently failed to furnish the servant with a reasonably safe place to work, being the equivalent of the allegation that the master failed to exercise reasonable care and- skill to furnish a safe place, is a sufficient allegation of negligence in that regard.</p>

Injury to Servant. Appeal from C'olbert Circuit Court. Heard before Hon. O. P. Almon. Action by Richard L. Cooper against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. The original first count was as an employee injured by being struck by an engine while attempting to cross the track to deliver orders to other employees. The second count was for negligently running the engine against the crossing without giving the signal required.

Injury to Servant. Appeal from Bessemer City Court. Heard before Hon. J. C. B. Gwin. Action by Wade Stewart against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals.

Injury to Servant. Appeal from the Coffee Circuit Court. • Heard before Hon. H. A. Pearce. Action by Sam Beeves against the Henderson-Boyd Lumber Company for damage for injury to him while in their employment. Judgment for the defendant, and plaintiff appeals.

Injury to Servant. Appeal from St. Clair Circuit Court. Heard before Hou. John W. Inzer. Personal injury action by Robert F. Cosper against the Pell City Manufacturing Company. Judgment for plaintiff, and defendant appeals.

Injury to Servant. Appeal from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Action by O. A. Cottrell against the Tennessee Coal, Iron & Railroad Company, for injury to plaintiff while in defendant’s employ. Judgment for plaintiff, and defendant appeals.

Injury to. Servant. Appeal from Bessemer City. Court. Heard before Hon. Wm. Jackson. Action by Jobn Granger against the United States Cast Iron Pipe & Foundry Company. From a judgment for plaintiff, defendant appeals.

injury to- Parson on Trade. Appeal from Autauga Circuit Court. Heard before Hon. E. J. Garrison. ■ Action by Joséph S. Williams against tbe Louisville & Nashville B. R. C’o., for damages for injuries suffered in a crossing accident. Judgment for plaintiff and defendant appeals.

Action Under Homicide Act. Appeal from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Action by E. F. Benefield and others as administrators, under the homicide act, against the Southern Railway Co., for the death of a minor child. Judgment for plaintiff, and defendant appeals.

Grossing Accident. Appear from Blount Circuit Court. Heard before Hon. John W. Inzer. • Action by Jasper Calvert, as administrator, against tbe Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals.

Injury by Explosion. Appeal from Birmingham City Court. Heard before' Hon. H. A. Sharpe. Action by Jos. W. John, by his next friend, Sam Will John, against the Birmingham Realty Company and Bracket O. Watkins, for damages for injury caused plaintiff by reason of an explosion alleged to have oc- ' curred on account of negligently leaving some caps and explosives unprotected and exposed to sight on the public streets of the city of Birmingham.

Death of Trespasser. Appeal from Bessemer City Court. Heard before Hon. Wm. Jackson. • Action by Ben H. Neyman, as Administrator, of the estate of B. F. Neyman against the Alabama Great Southern Railway Company for damages for the death of his intestate. There was judgment for plaintiff, and the court on motion of defendant set the judgment and verdict aside, and plaintiff appeals.

Libel cmd Slander. Appeal from Birmingham City Court. Heard before Hon. Chas. A. Senn. Action by B. B. Comer against the Advertiser Company and others. From a judgment granting insufficient relief, plaintiff appeals. The complaint was as follows: “Count 1.

Fraud and Deceit. Appeal from Marshall Circuit Court. Heard before Hon. A. H. Alston. Suit by C. K. Maxwell against James R. Sherman for fraud and deceit. Judgment sustaining demurrer to the complaint, and plaintiff appeals. The complaint contained 14 counts, some of which claim in various phraseology damages for misrepresentation and fraud in the sale of certain property within the town of Albertville.

Causing Building to Fall. Appeal from Montgomery Circuit Court. Heard before Hon. W. W. Pearson. Action by H. H. Parker & Bro., against James Hodgson for damages for cansing a wall to fall. Judgment for defendant and plaintiff appeals. Tbe court erred in sustaining demurrers to tbe fourth count of tbe complaint. — 29 Clc. 424, 425, and note; Wharton on Neg. Sec. 437; Pollock on Tort, 352; 10 Mo.

Trover. Appeal from Gadsden City Court. Heard before Hon. John H. Disque. Trover by tbe Rockhill Buggy Company against tbe McEntire, Wagnon & Tbomas Co., for tbe conversion of certain buggies. Judgment for plaintiff and defendant appeals. Tbe evidence was sucb as to authorize tbe jury to find that plaintiff’s traveling salesman bad authority to consent to tbe transfer of tbe buggies to the defendant corporation.— B’hcrn. M. R. R. Oo. v. T. O. I. & R. R. Oo., 28 South. 679.

Bill to Reopen Guardianship Settlement. Appeal from Mobile Law and Equity Court. Heard before Hon. Saffold Berney. Bill by Mary J. Martinez, et al., against Elizabeth Meyers, et al., to reopen guardianship settlement, to ■charge the guardian with certain items, and for other purposes. From a decree overruling the demurrers to the bill, respondents appeal.

BUI for an Accounting and for Damages. Appeal from Morgan Chancery Court. Heard before Hon. W. H. Simpson. Bill by the Jones Cotton Company against the Gulf Compress Company for an accounting and to apportion damage. From a decree for complainants, respondents appeal. The court erred in permitting Wall to be examined a second time. — Bonner v. Young, 68 Ala. 35; Pearson v. Barrington, 32 Ala. 230; 3 Story, 308; 2 John’s Oh. 495; 4 Elliott on Ev.

<p> Bill to Redeem From Mortgage Sale. </p> <p>Appeal from Lauderdale Chancery Court.</p> <p>Heard before Hon. W. H. Simpson.</p> <p>Bill by Robert L. Seals, as executor, against Thomas M. and Benjamin A. Rogers, to redeem lands belonging to his testator from mortgage sale. Decree for respondents, and complainant appeals.</p> <p>The case made by the bill is that complainant’s testator died leaving a last will and testament naming him as executor; that prior to his testator’s death he had executed five separate mortgages upon certain real estate in the city of Florence, which he described in his bill, the five mortgages aggregating the sum of $11,500; that his testator paid the interest on the same until his death, and that the mortgagee, one Perry, foreclosed the mortgages under power of sale and became the purchaser at the sale, bidding therefor the sum of $14,000; that afterwards Perry and wife conveyed the land to the present respondent for a recited consideration of $15,500; that he had made a written demand upon the vendees of the mortgagee for an itemized statement of all lawful debt, interest, cost, and damages due on said lands, and that they had failed for more than 10 days after receipt of same to furnish said itemized statement, but afterwards did mail such statement. The bill alleges that certain items in the statement are unlawful and unjust, stating the reasons therefor. It is then alleged that the improvements on the property were destroyed by fire, and that a large sum was collected by the present respondent as insurance on the property destroyed. The bill then prays for an accounting to ascertain the amount due, and to redeem upon payment of that amount. The demurrers raise the point that there was no- offer to do equity, no tender before the bill filed, no payment of money into court, and no good and sufficient reasons shown for not doing so. The court ordered, adjudged, and decreed that the complainant be given leave to amend in term time, and the complainant made application for time to amend in vacation, which motion the court denied, and,' the complainant declining to amend in term time, an order was entered dismissing his bill.</p> <p>It was not necessary that the complainant should have paid any sum into court and offered to abide the action of the court as he made the written demand and was not furnished a statement of the amount due. — Secs. 5748 and 5751, Code 1907.</p> <p>It was necessary that the complainant pay into court the amount due on the mortgage, and to offer to abide. the decision of the court. — Burke v. Br&iver, 133 Ala. 389; Baker v. Birdshaw, 132 Ala. 166. The right accrued before the passage of the last Code, and was a valuable right which was saved to respondents by section 10 of the Code of 1907.</p>

<p>1. Appeal and Error; Right of' Review; Persons Entitled. — The litigant in whose favor a decree concludes, and who can take no manner of benefit from a reversal or modification of it, cannot appeal therefrom.</p> <p>2. Same; Assignments of Error; Purpose and Function. — The sole office of assignment of error in appellate procedure is to invite a review of the rules of the trial court, which if sustained, would result in a decree of judgment changing or reversing the decree of the lower court.</p> <p>3. Same; Cross Assignments. — There can be no such thing as cross assigning for the purpose of affirming a judgment or decree, and the right of appellee, after' dismissal of the appeal, to invoke review on appeal of asserted erroneous rulings in the reception of evidence, cannot be determined by the fact that such rulings are not assigned as error.</p> <p>4. Same; Revieto; Scope. — Under section 5955, Code 1907, a review by the supreme court of a decree of a chancellor should be without presumption in favor of the decision of the chancellor on the facts, and as to the facts is de novo; and since a review comprehends the duty to revise properly taken exceptions to the rejection or admission of evidence, and to ascertain the legal evidence in an appeal from a decree dismissing a suit to cancel a deed, the court will consider exceptions of the appellee to the admission of evidence.</p> <p>5. Witnesses; Competency; Transaction with Decedents. — Under section 4007, Code 1907, a grantor, suing the heirs of a deceased grantee to cancel a deed and expunge its record, on the ground that he never executed or acknowledged the deed, may testify that he did not sign or acknowledge it.</p> <p>6. Evidence; Burden of Proof; Negative Averment. — It is a general rule that negative-averments in a pleading need not be proved, but where a party grounds his action on a negative averment, he must establish it, unless the subject matter of the averment lies peculiarly within the knowledge of the other party. Under those cir-. cumstanees, unless disproved the averment is taken as true, and where a negative averment involves fraud, the burden is on the party making the charge.</p> <p>7. Evidence; Presumptions; Innocence. — The presumption of innocence is evidentially effective in civil cases where criminal conduct is imputed, aDd, where the presumption of innocence is a factor in a civil proceeding, the degree of evidence necessary to repel the presumption must be clear and satisfactory, but in such cases it is not required that the imputation of wrong resented by the presumption of innocence should be refuted beyond a reasonable doubt.</p> <p>8. Witnesses; Credibility; Interest. — Where a witness testifies to the falsity of a certificate of acknowledgment to a deed, and such witness is interested in the result, the testimony will be carefully-scrutinized, but if it is full and fair and correct, it is entitled to the same credence which would be given to the evidence of a witness not interested.</p> <p>9. Aclmotvledgments; Impeaching; Burden. — Where a certificate of acknowledgment to a deed is regular and forms a part of the deed it will not be impeached for forgery or falsity, in a case admitting evidence to impeach it, unless the evidence to that end be clear and convincing and reaches a high degree of certainty leaving upon the mind no fair, just doubts.</p> <p>10. Beads; Presumptions. — Where a deed of conveyance bears on its face all the legal requisites to make it a valid instrument, facts will not be presumed against it; but to invalidate such a deed it must be impeached by strong affirmative proof.</p> <p>11. Same; Genuineness; Burden of Proof. — In an action for the cancellation of a conveyance and its expurgation from the record on the ground that the signature of the alleged grantor was a forgery and that the acknowledgment was false, in which the defendants denied the allegation of the bill, the burden of proving the issue was upon the complainant.</p> <p>12. Cancellation of Instruments; Trial; Mvidence. — As the question of title under the conveyance was not in issue, and as the defendants were not actors asserting rights under the conveyance, they were not boui'd after the filing of the affidavit by the complainant that the deed was a forgery, to offer a certified copy of the conveyance, since that would result in shifting the burden of proof to the respondent, when under the issues formed, it was upon the complainants (sec. 3874, Code 1907, as amended by Acts 1909, p. 14).</p> <p>(Simpson, Mayfield and Somerville, JJ., dissent.)</p>

<p>1. Vendor and Purchaser; Bona Pides; Notice. — Actual notice is equivalent to the constructive notice afforded by the registration of a conveyance under section 8383, Code 1907, the design of the statute being to give notice of the existence of the conveyance.</p> <p>2. Same. — A purchaser is charged with notice of the nature of the title of one in possession of the premises.</p> <p>3. Same. — One who has knowledge of facts sufficient to put him on inquiry as to the existence of an unrecorded deed is not a purchaser without notice within the protection of the registry statutes.</p> <p>4. Notice; Constructive Notice. — Whatever is sufficient to put one on inquiry is notice of everything to which such inquiry would lead.</p>