Volume 173 — Alabama Reports

Heard before Hon. A. H. Benners. Bill by J. C. Forney against the City of Birmingham' for specific performance of a contract-. From a decree overruling demurrers to the bill, defendant appeals.

Heard before Hod. A. H. Benners. Bill by Winston B. Grant against James H. Davis and another to establish a disputed boundary line. Decree for complainant, and respondents appeal. The allegations of the bill fall far short of what would have been necessary to have authorized a reformation of White’s deed if the latter conveyed land north of the line. — Turner v. Kelly, 70'Ala. 85; Dexter v. Orlcmder, 95 Ala. 467.

Heard before Hon. Ti-ios. W. Wert. Bill by tbe State of Alabama,-by its solicitor, against M. E. Woodward, to abate a liquor nuisance. From decree overruling demurrer to bill and motion to- dismiss, respondent appeals.

Heard before Hon. W. H. Simpson. Bill by Daniel Hammonds against J. B. Nelson and another to specifically perform a contract for the sale of lands and for other relief. From a decree overruling demurrers to the bill and refusing to dissolve a temporary injunction, respondents appeal. The bill alleges an agreement to purchase and a contract to sell certain lands described in the bill, the payment of a part of the purchase money, and the going into possession of the land.

Heard before Hon. A. H. Benners. Petition by Daisy I. Clisby against A. A. Clisby, her husband, to require the payment of alimony already decreed and alleged to be in arrears. From a decree denying the petition, petitioner appeals. The decretal order of reference in the divorce case in the city court did not settle or adjudge any rights, and was not a final decree. — Vice v. Littlejohn, 109 Ala. 294; Thompson v. Maddox, 105 Ala. 326.

Appeal, from Mobile Chancery Court. Heard before Hon. Thos. H. Smith. Bill by Prelate D. Barker and another against the Mobile Electric Company to declare an easement in an alley, and to enjoin its obstructions. From a decree for respondents, complainants appeal. In construing descriptions of boundaries, monuments, whether natural or artificial, dominate courses and distances. — Crumpton v. Prince, 83 Ala. 250; Pearson v. Heard, 135 Ala, 348.

Heard before Hon. W. H. Simpson. Bill for partition by Annie Winkles against James Powell and others. From a decree granting partition and allowing petitioner a one-sixth interest, she appeals. The ejectment suit settled the interest of the parties in the land and became res adjudicaba as to the matter. The vital question in this cause is, where Avas the homestead of Powell when he executed the deed to a one-half interest in the lands in controversy?

Heard before Hon. W. W. Whiteside. Bill by B. H. Hardaway against J. O. Wilkins to enforce the specific performance of a contract. Decree for complainant and respondent appeals. The terms of the contract are not sufficient to meet the requirements of the statute of fraud, and the demurrers to the hill should have been sustained. — Ala. Min. Land Go. v. Jackson, 121- Ala. 172; Alba v. Strong, 94 Alá. 168; Kopp v. Reiter, 37 A. St. Rep. 156; Rcrnb v. Smith, 1 Am.

Clair Chancery Court. Heard before Hon. W. W. Whiteside. Bill by Mary Dean and others against D. P. Rankin, Sr., to enjoin an action of ejectment, and to remove the cloud from title. Prom a decree for complainants, respondent appeals. The legal rights of these parties were settled on ■ former appeal. — Rankin v. Dean, 157 Ala. 490. On this authority the case should be reversed and remanded.

Heard before Hon. Wm. H. Thomas. Bill by Will Singo and others against Mark D. Brainard to set aside a sale and declare a trust. From a decree sustaining demurrer to the amended bill-, complainants appeal. A general demurrer should never be sustained unless complainant’ is without right to equitable relief. — Seals v. Robinson, 75 Ala. 863.

Heard before Hon. W. W. Whiteside. Bill by John W. Durr, executor, against J. B. Turner to enjoin the cutting of timber from land, and for damages therefor. Prom a decree upon a so-called amended demurrer respondent appeals. The court erred in overruling the demurrers- to the bill for want of equity. — Keller v. BuUimgton, 14 South. 466; High on Injunctions, sections 698-700.

Heard before Hon. A. H. Benners. Bill by Mrs. Mary McLaughlin against the SlossSheffield Steel & Iron Company to abate a nuisance occasioned by the piling of slag in a street. The first question to be considered is whether a general averment of mere circuity of route to reach complainant’s property is sufficient to give the bill equity for injunctive relief, whether the circuity he great or small, or whether it be a slight or considerable inconvenience.

Heard before Hon. H. A. Sharpe. Bill by P. H. Harris and others as trustees and members of the First Cumberland Presbyterian Church of Birmingham against W. M. Coshy and others to- determine the right to possession to certain church property. Decree for respondents, and complainants appeal.

Heard before Hon. A. H. Benners. Bill by R. L. Whatley against the Southern States Eire & Casualty Company. Prom a decree overruling a demurrer to the bill respondent appeals.

Heard before Hon. Thos. W. Coleman. Bill by Gussie Martin against Anee Martin, as'administrator of the estate of M. J. Martin, deceased, and others, for the removal of the estate from the probate to the chancery court, and for other purposes. From a decree for respondents, complainant appeals.

Heard before Hon. A. H. Benners. Bill by the Birmingham Securities Company against the Southern University to quiet title to a particular piece of land. Decree for respondent, and defendant appeals. The map of Forest Hill was an essential part of the description to the same extent as if it had been incorporated in the deed. —Miller v. Outturn, 4 Ala. 576; McQoun v. Laphaon, 21 Pick. 133; Lampley v. Kennedy, 25 Wis. 223; Gov os. Hart, 145 U. S. 376; Devlin on Deeds, Sec. 1020.

Heard, before Hon. H. B. Foster. Bill by M. E. Powell against D. L. Rosenau for an accounting and to declare a deed null and void. Judgment for complainant and respondent appeals. The court was in error in rendering a decree pro confesso against the defendant. First, because interrogatories were never filed, and no order was made by the register requiring and fixing a time for answer. S'ect-ions 8135, 3136, Code 1907. ■ The court erred in permitting the amendment.

Heard before Hon. W. H. Simpson. Bill by A. J. Casey, the outgoing sheriff of Cullman County, against O. W. Bryce, the sheriff declared elected and commissioned, to enjoin him from taking charge of the office of sheriff of Cullman County. From a decree sustaining demurrers to- the bill and dissolving the temporary injunction on the denials to the answer, complainant appeals.

Heard before Hon. E. S. Lyman. Bill by M. E. Bulke against Paul Bulke for divorce and alimony. From a decree granting temporary alimony and attorney’s fee, and ordering a reference, respondent appeals. Reversed and rendered.

Heard before Hon. H. A. Sharpe. Bill by A. B. Vandergrift and others, minority stockholders in the Three Rivers Coal & Iron Company, against J. E. Ellis, the corporation and the corporate officers to dissolve the corporation, correct certain fraudulent acts and for other purposes. Prom a decree overruling his demurrer to the bill the respondent Ellis appeals.

Heard before Hon. W. H. Simpson. Bill by Carter Swope, pro ami against Clay Swope and others as guardians, etc., to remove an estate from the Probate to the Chancery court, and to wind up the estate. From a decree for complainant respondent appeals.

Heard before Hon. W. H. Simpson. Bill by Daniel Coleman and wife against S. W. Irwin and wife for the cancellation of a deed, to declare it a mortgage, and for other relief. Decree for complainants, and respondents appeal.

Heard before Hon. W. H. Simpson. Bill by H. R. McMurry against James McHan seeking an injunction to restrain the erection of a dam. Decree for complainant and respondent appeals. Wliere an injunction is granted on a bill which is wanting in equity it should be dissolved whether the allegations of the bill are admitted or denied. — Satterfield v. J olm, 53 Ala. 127; Hart v. Clark, 54 Ala;. 490; Bishop v. Wood, 59 Ala. 253; Chambers v. Ala. Grain Co., 67 Ala. 356.

Heard before Hon. Thos. W. Coleman, Jb. A bill by G. H. Young as trustee in bankruptcy of R. P. Thomason against J. F. Smith to declare a conveyance a general assignment, or as a fraud on creditors.

Heard before Hon. W. H. Simpson. Bill by Marvin West as trustee in bankruptcy of the estate of Herbert Cartwright against Cartwright and others to cancel certain conveyances as fraudulent and void, made by the bankrupt. From a decree, holding certain pleas insufficient respondents appeal. Pleas may be filed to a part of a bill. Sims Chan. Prac. Sec. 457; 2 Daniels Chan. Prac. 685; Story’s Eq. Plead. Sec. 647.

Heard before Hon. A. H. Benners. Bill by George W. Newell against Chas. Manley to quiet title to certain land. Judgment for respondent and complainañt appeals.

Heard before Hon. L. I). Gardner. Bill by.W. S. Oates against W. J. Whitehead, as Tax Collector, for injunction. Decree sustaining demurrer to the bill, and complainant appeals.

Heard before Hon. H. A. Sharpe. Bill by E. I). Coffman against the City of Birmingham to enjoin the enforcement of a lien and to remove same as cloud upon title. From a decree for complainant respondent appeals.

Heard before Hon. W. H. Simpson. Bill by Geo. B. Caldwell and others against D. K. Caldwell and others to apportion a mortgage debt as to several parcels of land and for redemption. From a decree overruling demurreris to the bill respondents appeal.

Heard before Hon. W. H. Simpson. Bill by T. B. Horton, and others, against the Southern Railway Company, to enjoin the removal of its depot from one point to another in the city of Tuscumbia. From a decree denying the temporary injunction, and dismissing the bill, complainants appeal.

Heard before Hou. Saeeold Berney. Bill by Theodore L. Guesnard against Theodore H. Guesnard and another for sale of land for division, and incidentally to construe a will. From a decree overruling demurrer to the bill, respondents appeal.

Heard before Hon. A. H. Benners. Bill by J. C. Maben against the Gulf Coal & Coke Company and others, to annul and set aside a conveyance of the corporation’s property in mineral lands. From a decree dismissing the bill on demurrer, the complainant appeals.

Heard before Hon. A. H. Benners. Bill by F. P. Dawson and others, against W. B. Copeland and others, to remove the administration of an estate from the probate to the chancery court, for an accounting, and to sell lands in a foreign jurisdiction for partition. From a decree denying relief, complainants appeal.

Aiteal from Tallapoosa Chancery Court. Heard before Hon. W. W. Whiteside. Bill by Tallapoosa County Bank against W. H. Wynn as administrator to enjoin a suit, and to set off certain claims against deposits. Prom a decree dissolving the injunction restraining the action, complainants appeal.

Heard before Hon. W. H. Simpson. Bill by C. Edward Albes against the Southern Railway Company, and the city of Decatur to enjoin the closing of a street, and for damages to abutting property. Decree for respondents and complainant appeals. Section 235, Constitution 1901, should be liberally construed in favor of the citizens. — Gity Council of Montgomery v. Toionsend,' 80 Ala. 489.

Autauga Chancery Court. Heard before Hon. W. W. Whiteside. Bill by Kate Coleman and others, against Claude Coleman and others, for an accounting, and to declare a trust. From a decree sustaining demurrers to the bill, complainants appeal. The right, if any, is against the legal title, and therefore, equitable, and must be asserted in equity. — Berry v. Webb, 77 Ala. 507; Donnor v. Quartermaster, 90 Ala. 164; 1 Pomeroy, 137.

Heard before Hon. Thomas H. Smith. Bill by Paul Gartman and others, against Anna E. Johnson, to declare a deed void, and to sell lands for division. Judgment for complainant and respondents appeal. Appellant was bona fide purchaser for value without notice of the claim of the heirs of Gartman and entitled to protection as such. — Center v. P. & N. Bank, 22 Ala. 743; Crosky v. Smith, 126 Ala. 120; Fley v. Pace, 139 Ala. 293; Nolan v. Farrow, 154 Ala. 269.

Heard before Hon. L. D. Gardner. Bill by I. F. Goodson against F. J. Dean, probate judge, and the members of the commissioner’s court of Conecuh county seeking to restrain the issuance of certain bonds. From a decree sustaining demurrers to the bill complainants appeal. The issuance of the bonds would create an indebtedness. — Hag (Mi v. Commissioner’s Court, 160 Ala. 544, and authorities cited.

Heard before Hon. Armstead Brown. Bill by T. J. Rutledge and others, against F. J. Cramton and others, for partition. From a decree denying interest on a note deposited with a custodian pending litigation beyond the time of payment, complainants appeal.

Heard before Hon. Armstead Brown. Bill by J. Loeb Grocery Company, against I. Brick-man & Co., and others, to declare a preference a general assignment for the benefit of all creditors holding waive notes. Prom a decree sustaining demurrer to the bill, complainants appeal.

Heard before Hon. W. W. Whiteside. Bill by A. T. Stock against the city of Gadsden to enjoin the change of the grade of a street. From an order dissolving the preliminary injunction, complainant appeals. Although reference be had and the amount ascertained and paid into court the injunction should not have been dissolved, as no public necessity is shown. — Town of New Decatur v. Scharferiburg, 41 South. 1025; City Council v. Townsend, 84 Ala. 486.

Heard before Hon. L. D. Gardner. Bill by D. S. Carroll against J. W. Draughon and others, to establish a resulting trust in land. Decree for respondent and complainants appeal. The application to have the land set apart to the widow as a homestead does not estop her or her vendee to seek the redress here sought. — Fa/ir cloth et al. v. Carroll, 137 Ala. 243.

Heard before Hon. Gaston Gunter. Bill by tbe Union Bank & Trust Company as guardian of Virginia Powell, against Bolling R. Powell, and. others, for the sale of certain lands for partition. From a decree for complainant the respondent named above appeals. The appointment of a guardian without inquisition is void. — Moocly v. Bibb, 50 Ala. 248.

Heard before Hon. A. H. Benners. Bill by D. P. Brock against Sam Foley and others for partition of land. From a judgment overruling a demurrer respondents appeal. The bill was subject to the demurrers interposed for the reason that the railroad company is a joint owner or tenant in common of the land, under the averments of the bill. Tbe bill was sufficient under the statute. — Section 5205, Code 1907.

Heard before Hon. L. D. Gardner. Bill by D. S. Carroll, as administrator, against J. W. Draughon for restitution, and for an accounting for rents and profits. From a decree dismissing the bill complainant appeals. The application to have the land set apart to the widow as a homestead does not estop her or her vendee to seek the redress here sought. — Faircloth et al. v. Carroll, 137 Ala. 243.

Heard before Hon. W. W. Wi-iiteside. Bill by the Roanoke Guano Company against Hattie Saunders and others, to enjoin several actions at law, and to ascertain and determine the damage suffered by respondents. From a decree by respondents complainants appeal. Every question presented by the demurrers from 1 to 11 inclusive, is fully answered by the opinion in the case of Southern Steel Go. v. Hopkins, 47 South. 274; Cleveland v. Ins.

Heard before Hon. W. W. Whiteside. Bill by Fanny Atkins, against James A. Cook and., others, to enforce-a. vendor’s lien. From a decree overruling demurrers to the bill, respondents appeal. Under the conveyance the lien of Atkins on the lands in controversy could be but a mere creation of equity. — Eester v. Eunnicutt, 104 Ala. 282; Sykes v. Betts, 87 Ala. 537.

Heard before Hon. Sapfold Bernby. Bill by William Griffin and others, against Allen Robinson, to cancel certain deeds and to require a return of property. Prom a decree for complainant, respondent appeals. It is never sufficient to aver fraud as a legal conclusion, but facts must be set out which are legally sufficient to show fraud.— Kidd i>. Morris, 127 Ala. 393 \.BeU v. Southern Home Go. 140 Ala. 377; Pinkston v. Boykin, 30 South. 398.

Appkal. from Morgan Chancery Court. Heard before Hon. W. H. Simpson. Bill by 'Walker A. Hawes against Walter M. Grubbs and others. From a decree for complainant on demurrer, defendants appeal. Held: and which they had acquired under said sale under said decree, at and for the sum of $90.81, taking from them a quitclaim deed to said property.

Heard before Hon. A. D. Sayre. Bill by Hall & Farley as trustees, against the Alabama Terminal and Improvement Company and others, to subject equitable assets of the insolvent corporation to the payment of certain judgments, execution thereon being returned “no property found.” Decree for respondent and complainant appeals.

Heard before Hon. H. A. Sharpe. Bill by C. B. Sullivan as trustee, against the Central Land Company, and others, to dissolve the corporation and wind up its business, and affairs. From a decree denying relief complainant appeals. The equities of the bill were settled on a former appeal. — C. L. Co. v. Sullivan, 152 Ala. 360.

Heard before Hon H. A. Pearce. Quo Warranto by the state on tbe relation of W. J. Gresham, against Frank J. Mizell and others, seeking to oust them as mayor and council of the town of Samson. From a judgment for relator respondent appeals. Quo Warranto is not the proper remedy. — Sec. 5464, Code 1907; Patton v. Wattains, 131 Ala. 387.

Heard before Hon. H. A. Pearce. Mandamus by tbe City of Troy against tbe Commissioners’ Court of Pike County. 'Order in favor of petitioner, and defendants appeal. Tbe petition alleges that there was levied and collected for Pike county by the commissioners’ court thereof a road tax of one-fourth of one per cent, on tbe property assessed for taxes in said county. Tbe said tax was levied for tbe years 1908-09, was due October 1, 1909, and delinquent January 1, 1910.

Heard before Hon. Samuel B. Browne. Quo warranto by the State on the relation of D. J.. ■Callaghan, against Stephen Touart, to oust him from 4he office of Tax Commissioner of Mobile county. Judgment for relator, and respondent appeals. Section 2288, Code 1907, is violative of section 175, Constitution 1901. — Nolan v. State ex rel. Moore, 118 Ala. 154; Hawkins v. Roberts, 122 Ala. 130.

Heard before Hou. H. A. Pearce. Arch Dowling was convicted in the circuit court of a violation of an ordinance of the City of Troy, and he appeals. Eeversed and remanded, and a constitutional question was certified to the Supreme Court for determination. Question answered. There was conviction in the mayor’s court for a violation of the prohibition law, and the defendant was sentenced to pay a fine of $100 and $2 costs.

. Heard before Hon. J. J. Curtis. Mandamus by Charles M. Sartain against John M. Gray, sheriff of Walker county, to require him to furnish poll lists of a certain election, which was being contested. From a judgment denying petition, petitioner appeals. Affirmed. As a contesting claimant of the office it is the clear statutory right of appellant to have a certified copy of the poll list. — Section 458, Code 1907.

Heard before Hon. J. J. Curtis. Action for mandamus by Charles M. Sartain against James W. Shepherd, as judge of probate. From a judgment sustaining demurrers to the petition, petitioner appeals. The contents of the petition sufficiently appear from the opinion.

Heard before Hon. O. J. Semmes. Quo wárranto by tbe State on the relation of J. E. McNamara against A. Z. Oberhaus, to determine respondent’s right to the office of jury commissioner of Mobile county. From a judgment granting the writ, respondent appeals. The main point of the controversy is the time for expiration of the defendant’s first term as jury commissioner, and the point of beginning of Governor O’Neal’s term as governor.

Heard before Hon. John T. Lackland. Ejectment by Cammie Vera Farr, and others, against • Lemuel Perkins and others. Judgment for defendants and plaintiffs appeal.

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. William Jackson.</p> <p>Ejectment by W. D. Bush against F. D. Fuller. Judgment for defendant and plaintiff appeals.</p>

Heard before Hon. W. W. Wallace. Common-law ejectment by F. H. Hardy against B. T. Bandall. Judgment for defendant, and plaintiff appeals.

Heard before Hou. John Pelham. Ejectment by tbe Marietta Fertilizer Company against R. W. Blair and others. Judgment for defendants and plaintiffs appeal. Under section 5361, Code 1907, the appellant is entitled to have the conclusion and judgment of the lower court on the evidence reviewed without any presumption favorable to the court below. Under the facts in this case, the doctrine declared in Lawrence v. Ala. St. L. Co. 144 Ala. 524, must'prevail.

Heard before Hon. J. P. Stjles. Petition by the Birmingham Coal & Iron Company for the substitution of records directed to William E. Arnett and others. From a judgment substituting the record, Arnett appeals. The guardian who made the sale having died, the personal representative of such guardian should be made a proper party by the proper notice. — Davney v. Mitchell, 56 Ala..

Heard before Hon. H. A. Sharpe. Action by A. S. Cowan, as trustee in bankruptcy of the firm of Moore Bros., against the individuals composing such firm, and the American Bonding Company, for breach of a forthcoming bond. Judgment for plaintiff, and defendants appeal.

Heard before Hon. C. W. Ferguson. Action by Alfred Smith against C. D. Smith and others. From a judgment dismissing the cause plaintiff appeals. The court erred in making the order of dismissal of Oct. 9th, and also in overruling appellant’s motion to set aside and vacate such order. — Section 8687, Code 1907; First Nat.

Heard before Hou. D. W. Speake. Assumpsit by Sallie Winter as administratrix, against Ignatius Poliak, for services rendered by her decedent. Judgment for plaintiff and defendant appéals. The court erred in permitting plaintiff to testify that she caused diligent search to be made through the papers of her decedent and found no evidence of payment having been made of the account sued for. — Poliak v. Winter, 166 Ala. 255.

Heard before Hon. A. H. Alston. Assumpsit by J. W. Hughes against Albertville Mercantile Company. From the judgment, Hughes appeals and submits a motion to establish a bill of exceptions. Subsequently to the handing down of this decision the case was transferred to the Court of Appeals, for a decision on its merits, and will be found reported in .3 Ala. App. 462; 57 South. 98.

Appeal- from Jefferson Circuit Court. Heard, before Hon. A. Ó. Lane. Assumpsit by Hoffman & McNeill against Joseph Joseph & Brothers Company,, a corporation. Judgmeat for plaintiff and defendant appeals. The court should not consider items of the account not on the hill of particulars as objection was made at the time the evidence was offered. — Section 5826, Code 1907, and cases cited.

Heard before Hon. D. W. Speakk. Assumpsit by E. C. Kinney against W. J. Oliver, with attachment and garnishment. Judgment for plain- . tiff and defendant appeals. The judgment ivas prematurely rendered. — Sec. 2961, Code 1907; see also sections 2962-4, and sections 5346-7. A plea in abatement must come before a plea in bar or demurrer.— Brown v. Powell, 4 Ala. 149; Leiff’s Case, 101 Ala. 544.

Heard before Hon. Tancred Betts. Bill by J. C. Goodrich and others, as executors of the last will and testament of J. N. Hairston to remove the settlement of the estate from the probate to the circuit court and for a construction of the will. From the decree rendered, Pearl Pitts, one of the devisees, appealed.

Heard before Hon. H. A. Si-iarpe. Action by Mrs. W. W. Bagley against the Central of Georgia Railway Company for injury to her as a passenger. From a judgment for plaintiff, defendant appeals.

Heard before Hon. A. O. Lane. Action by Mrs. Ora M. Fisher against the Birmingham Railway, Light & Power Company for damages for injury to her while a passenger. Judgment for plaintiff, and defendant appeals.

Heard before Hon. John H. Disque. Action by Mary E. Cox against Alabama City, Gadsden & Attalla Railway Company. From,' a judgment for •plaintiff, defendant appeals..

Tuscaloosa County Court. Heard before Hon. H. B. Foster. Action by Willis A. Seales against the Central Iron & Coal Company, for damages for injuries alleged to have been received while in its employment. Judgment for the defendant and plaintiff appeals. The court erred in overruling appellant’s motion to strike the pleas filed more than thirty days after service. — Acts 1896-7, p. 267.

Heard before Hon. Charles A. Senn. Action by Levi Milbra, as administrator, against .the Sloss-Sheffield Steel & Iron' Company. Judgment for plaintiff, and defendant appeals. The pleadings noted in the opinion sufficiently appear therefrom.

<p> Damages for Death of Employe. </p> <p>1. Master and Servant; Injury to Servant;-.Duty of Superintendence. — The duty of a fire boss of a mine to examine the condition of the'mine when gas is known to exist therein, before nien are permitted to enter for work, .is a duty of superintendence within, subdivision 2-of section 3910, Code 1907, notwithstanding the provisions of section 1031, Code 1907. - •• . •</p> <p>2. Master and Servant; Assumption of Rislc. — In the absence of a special contract based on a sufficient consideration an employe, in a mine does not assume the risk of the" owner or operator’s failure to .observe the provision of section 1016,. Code 1907.. •</p> <p>3. Same. — In the absence of a special contract based on a sufficient consideration, an employe does not assume the risk of negligence in superintendence under subdivision 2, section 3910, Code 1907.</p> <p>4. Same; Contributory Negligence— An employe in a mine may be guilty of contributory negligence in going into a place' where he knows gas to exist in dangerous quantities, or where he has been specially warned not to. go, though the owner or operator had hot complied with the requirements of section 1016 and 1031', Code 1907.</p> <p>5. Same; Obligation to the Master; Statutory Regulation. — An operator of a mine cannot evade responsibility for a failure to comply with the requirements of section 1016 and 1031, Code 1907, by setting up general rules for the conduct.of the business as a substitute for the precautions prescribed by the statute, and he may not by such regulation impose on any employe the duty of ascertaining Whether the law has been complied with.</p> <p>6. Depositions; Responsiveness of Answer; Admissibility. — Where the answers of a witness to interrogatories were responsive to the issues as made up by the court’s approval, and were not otherwise objectionable, it was error to strike portions of the depositions containing the answers on the grounds that the answers were not responsive to the interrogatories.</p> <p>7. - Charge of Court; Conformity to Issues. — Where the court had erroneously overruled a demurrer to a plea which there was evidence to support, it was error to refuse to instruct that if the- facts alleged in the plea were found to be true, the verdict should be for the defendant, as-it is not proper to change the issues as developed by. the pleading by giving or refusing instructions.</p> <p>8. •Appeal and Error; Barmless Error; Instructions. — Since this court cannot know on appeal what the evidence would have been if the issues had been differently shaped, or that the defendant might not ha\e amended his insufficient pleas so as to have presented a meritorious defense, if the demurrers thereto had been sustained, errors in charges which depart from the theory observed in passing on the demurrers were prejudicial, notwithstanding plaintiff made out a prima facie case by proof without conflict, and the facts as stated by the bill of exceptions seem to preclude any special defense.</p>

Heard before Hon. D. W. Speak®. Action by W. T. Holland, as administrator, against tbe Louisville & Nashville Railroad Company, for damages for death of his intestate. Judgment for plaintiff, and defendant appeals.

Heard before Hon. W. W. Haralson. Action by A. J. Smith, as administrator, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. The rulings on the pleadings sufficiently appear from the opinion of the court, as do the facts in the case.

<p> Damages for Death at Municipal Plant. </p> <p>1. Evidence; Judicial Notice Special Acts.■ — The courts take judicial notice of public acts, local as to territory, creating municipal corporations or amending their charters, and that a particular municipality was created by several local acts which impliedly, if not expressly, authorized it to own and operate electric lighting plants.</p> <p>Municipal Corporation; Acts in Private Capacity; Maintaining Electric Light Plant. — Under Local Acts, 1892-3, p. 231, and Local Acts 1894-5, p. 938, the town of Union Springs was authorized to own and operate an electric lighting plant so as to render it liable for the negligence of its servants or agents, by reason of which an uninsulated guy wins was permitted to become heavily charged with electricity resulting in the death of the child who came in contact therewith.</p>

<p>Appeal from Walker Law and Equity Court.</p> <p>Heard before Hon. T. L. Sowell.</p>

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

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. C. C. Nesmith.</p>

<p>Appeal from Cullman Circuit Court.</p> <p>Heard before Hon. D. W. Speake.</p>

<p>Appeal from Cullman Circuit Court.</p> <p>Heard before Hon. D. W. Speake.</p>

Heard before Hon. C. C. Nesmith. J. D. Payne was appointed by the judges of the city court of Birmingham to act as bailiff of said court, and the county treasurer having refused to pay his monthly salary, he applied for and obtained a mandamus requiring him to pay such salary. The case of Miller v. Griffith, was brought by Griffith as the appointee of the sheriff, and not of the judges.

<p>Appeal from Clay County Court.</p> <p>Heard before Hon. E. J. Garrison,</p>

<p>Appeal from Tuscaloosa County Court.</p> <p>Heard before Hon. H. B. Poster.</p>