Volume 174 — Alabama Reports

<p> Habeas Corpus. </p> <p>1. Extradition; Requisition. — The requisition in extradition proceedings need not set out an authenticated copy of the law of the state which the alleged fugitive is charged with having violated.</p> <p>2. Habeas Corpus; Detention Under Requisition; Return. — Where a petitioner is held under requisition papers and brings habeas corpus for his discharge, a return showing a warrant from the governor of this state as well as the requisition papers from the governor of another state, each reciting the jurisdictional facts, and that petitioner is charged with crime, makes out a prima facie case of lawful detention which can only be overcome by proof that the petitioner is not a fugitive from justice, or that the process was void. The sheriff is not required to prove a law of the other state covering the crime charged.</p>

Heard before Hon. O. J. Semmes. Lawrence Odom' was convicted of murder in tbe first degree and he appeals. The court erred in not permitting the witness to testify as an expert.— 54 Cal. 509; 64 Yt. 233; 35 Yt. 389; 39 L. R. A. 317; 12 Mich. 36; 127 Mass. 4421; 111 U. S. 612; Wigmore on Evict sec. 568.

Heard before Hon. S. L. Weaver. John Andrews was convicted of murder, and he appeals. The facts as to the venire sufficiently appear in the opinion.

Heard before Hou. John Pelham. Will Jones was convicted of murder and he appeals. Counsel discuss the action of the court in permitting counsel to come in and assist in the prosecution after it had been announced that such counsel would not assist, and the jury had been drawn under that impression, but they cite no authority in support of their contention. Counsel discuss the evidence, but without citation of .authority.

Heard before Hon. Thomas W. Coleman, Jr. Ervin Pope was convicted of murder, and lie appeals. For former report of this case, see 168 Ala. 83, 53 South. 292. The exceptions to evidence are sufficiently set forth in the opinion of the court.

Heard before Hon. Thomas W. Wert. Will Jones was convicted of murder in the second degree, and he appeals. The facts as to the admission of the stenographer’s notes as to Will Harvey’s testimony sufficiently appear in the opinion.

Heard before Hon. B. M. Miller. Frank Savage was convicted of murder, and he appeals.

Heard, before Hon. M. Prank Cabalan. Son Talley, alias Paul Talley, was convicted of murder in the first degree, and appeals. The exceptions to evidence sufficiently appear in the opinion.

Heard before Hon. Samuel B. Browne. ■ .Ejectment by Anna Rickert against Kate Touart. From a judgment for defendant, plaintiff appeals. Affirmed. Plaintiff claimed title under tbe will of Mary Rodrigues made in 1879 and admitted to probate in 1907, seven years after her death on August 25, 1900, while defendant claimed under two conveyances, each executed August 23, 1900, one of which was made to Margaret Wall.

Heard before Hon. Charles S. Senn. Ejectment by Carrie Bradford and others, against John Sneed and others. Judgment for plaintiff, and on motion of defendant the judgment was arrested on account of the insufficient description of the verdict, and the plaintiff appeals and seeks mandamus to compel the circuit judge to annul said order granting said motion in arrest of judgment. The description was sufficient. — Rayburn v. Flrose,, 43 Ala. 700, and cases there cited.

A ureal from the Mobile Circuit Court. Heard before Hon. Samuel B. Browne.- Ejectment by Frank Hemley, against James M. Sea-bury, et al. Judgment for plaintiff and defendants appeal. The assignment of the mortgage spoken of in the opinion is as follows: “For value received, we hereby transfer, assign, and set over to Stark H. Oliver all our right, title, and interest in and to the within mortgage, together with all the poAvers therein and privileges thereby conferred upon us.

<p>Appeal from Dale Circuit Court..</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Ejectment by James Bottoms, against Joe Wilkinson and others. Judgment for plaintiff and defendant appeals.</p> <p>The exceptions made the basis of the assignments of error are as follows: “(1) In sustaining the plaintiff’s objection to the following question to witness Whaley: ‘Did you ever hear Wilkinson say that he and Bottoms had traded the land and had made the road- the line between the 40’s, and that Wilkinson got Bottom’s land on the west side of the road, and Bottoms got Wilkinson’s land on the east side of the road?’ (2) In sustaining objection to the following question to Wha-. ley : ‘Did you ever hear Levi Wilkinson say that he and W. H. Bottoms had swapped land, and had made the Pleasant Ridge road the line between their two 40’s?’ (3) Sustaining objection to the following question to the witness Whaley: ‘Did Levi Wilkinson ever point out the line around the Bottoms land that was on the west side of the Pleasant Ridge road, and did he say it was the land he got -when he and Bottoms swapped?’ (4) Overruling objections to question to same witness: ‘Did Levi Wilkinson point out to you the lines around the Bottoms land on the west side of the Pleasant Ridge road, and tell you that he got from Bottoms the said ■ piece of land when he and Bottoms made the swap?’ Í5) Error in refusing to grant motion for new trial.”</p> <p>The court erred in not permitting proof to be made as to declarations by Wilkerson while in possession relative to the trade between he and Bottoms, and the making of the road the line.— 62 Ala. 369; 65 Ala. 259; 74 Ala. 64; 102 Ala. 398; 148 Ala. 291; 159 Ala. 297. The exchange was valid.— 98 Ala. 182; 123 Ala. 133. The possession of each became adverse to each. — 131 Ala. 386; Dams, et al. v. Grant, 55 South. 210; Grant v. Nation, 55 South. 310. The court erred in refusing to grant a new trial. — 131 Ala. 422; 140 Ala. 313; 143 Ala. 392.</p> <p>The questions as to declarations were hearsay and inadmissible. — Dotharcl v. Denson, 72 Ala. 544; Vincent v.■ The State, 74 Ala. 282; Bcmcum v. George, 65 Ala, 266; Pilcher v.. Hickman, 148 Ala. 516; Gouch v. Vouch, 141 Ala. 364; Butler v. Butler, 133 Ala. 380; Daffron v. Crimp, 69 Ala. 79; Rynels v. Jemes, 49 Ala. 185. The deniql of the motion for new trial cannot be reviewed where no exception is taken to such denial. — Rosenhury v. Lcnerence, 160 Ala. 425. Evidence merely cumulative is not ground for new trial because of newly discovered evidence. — McLendon v. McKissack, 143 Ala. 192; E. G. M. & B. v. Phillips, 98 Ala.. 168.</p>

. Heard before Hon. Mike Sollie. Ejectment by S. L. Bedsole against W. F. Williams and others. Judgment for plaintiff and defendant appeals.

Heard before Hon. T). W. Speake. Ejectment by Jacob' Abraham against Archie Clarady and others. Judgment for plaintiff and defendants appeal. The description was uncertain. — Hurt v. Freeman, 63 Ala. 335. Tlie court committed error in striking the pleas. —A. G. 8. w. Clark, 136 Ala. 461; Otoensboro Wagon Go. o-. Hall, 149 Ala. 210. Under tlie facts in this case evidence of fraud was admissible as going to the merits of plaintiff’s titles. — Rodgers o. Brent, 50 Am.

Heard before Hon. S. L. Brewer. Ejectment by Thornton Lodge against- R. B. Wilkerson and others. Judgment for defendant and plaintiff appeals. (For a former report of this case see Lodge v. Wilherson, 51 South. 69.) The court erred in excluding the deed of the probate judge to Lodge of the tax sale. — Section 2810, Code 1907; Section 2297, Code 1907.

Heard before Hon. W. B. Browne. Special Ejectment by the Southern Mineral Land Company against the Montevallo Mining Company. Judgment for plaintiff and defendant appeals. Where the vendor conveys two separate tracts to only one of which he has title, an entry upon and occupation of that tract of which he has title will not, without more, operate a disseizen of the owner of the tract to which the vendor had no title. —Fenvo v. Sayre, 3 Ala. 458; Bailey v. Garitón, 37 Am.

Heard before Hon. I-I. A. Pearce. Ejectment by II. A. Windbam against Dan McIntosh. Judgment for plaintiff, and defendant appeals. The following charges were requested by defendant and refused.

Heard before Hon. Edward J. Gilder. Ejectment by Laura E. Compton against A. Y. Sharpe and others. Judgment for defendant and plaintiff appeals. The mortgage executed by Simmons to Compton was a good and valid conveyance and was not fraudulent, and the only way that Sharpe could defeat the same ivas by showing a superior lien. — 3 Mayf. 853.

Heard before Hon. Mike Sollie. Action by the Montgomery & Eufaula Railway and others against McKenzie and others, with the suggestion that E. M. Lovelace was the landlord, and order issued to have him come in and defend! Judgment for plaintiff and defendant appeals.

'Heard before Hon. S. L. Brewer. Ejectment by W. W. Williams against George W. Chambly. Judgment for plaintiff and defendant appeals. The suit was originally begun by A., J. B., E. B. and W. W. Williams, but was later amended by striking as parties plaintiff, all except W. W. Williams, and the suit proceeded to judgment in favor of said W. W. Williams for a one-eighth undivided interest in the lands sued for.

Heard before Hon. H. A. Pearce. Detinue by J. W. Barnes, as administrator of tbe estate of William Barnes, deceased, against Jesse Barnes. Judgment for plaintiff and defendant appeals. A valid gift may be made of a promissory note by delivery merely. — 16 Ala. 221; 87 Cm. Rep. 371; 44 Id. 53; 50 Id. 172; 20 Cyc. 1237. Tbe delivery of a certificate of deposit is a valid gift of tbe money deposited. — 105 Ala. 193; 93 Am. Dec. 517; 7 Cyc. 811; 14 N. W. 363; 27 L. Ed. 500.

Heard before Hon. H. A. Pearce. Action between W. J. Kirkland and G. W. Pilcher. From a judgment- for the latter, the former appealed to the Appellate Court, and it certifies a question to the Supreme Court.

Heard before Hon. M. W. Rusi-iton, Special Judge. Detinue by the General Electric Company against tbe town of Fort Deposit, for tbe recovery of certain electrical fixtures and attachments. Judgment for defendant and plaintiff appeals. The record failing to show that the trial court ruled' on the demurrers or motions to strike, they will be treated on appeal as having been abandoned. — Henderson v. Berry, 145 Ala. 404; 98 Ala. 608; 88 Ala. 434; 47 Ala. 667.

Heard before Hon. C. P. Albion. Detinue by the Hall & Brown Woodwork™g Machine Company against Haley Furniture & Manufacturing Company, in which the Sheffield Trust Company intervened as claimant. Judgment for claimant, and. plaintiff appeals. The failure to comply with the requirements. of section 6043, Code 1907, was fatal to the right of claimant to recover. — Bennett v. McKee, 144 Ala. 601; Ivey v. Coston, 134 Ala. 259.

Heard before Hon. George Leslie. Proceedings by J. W. Smith for the probate of the will of Mary Smith, deceased, in which J. M. Smith and another appear as contestants. From a judgment refusing the probate, tlie proponent appeals.

Heard before Hon. Samuel E. Greene. Contest of settlement of estate in the probate court between T. G. Holt and E. F. Stollenwerck. From a decree ■ denying participation in the estate, the contestant appeals. Under section 3765, Code 1907, Holt was entitled to half of his wife’s estate. As to what is the half of a wife’s estate, see. — Sec. 4486, and sec. 2, Code 1907. As to what is property see 32 Cyc. 647, et seq.; 6 L. B. A. 554.

Heard before Hon. R. L. Bradley.- ¡Partition and division between Nancy J. Taylor, and Nancy Cribbs and others, for a division according to a devise. From a judgment apportioning the property, Nancy Taylor • appeals. The devise was to the children of the women mentioned therein. — Watson v. Williams, 129 Ala. 362. The intention was clearly to provide for the grandchildren. — Ballentine v. Foster, 128 Ala. 638.

Heard before Hon. A. E. Singleton. Application by M. B. Johnston for probate of the will of Morgan P. Johnston, deceased, contested by M. W. Johnston and others. Decree refusing probate, and proponent appeals. The facts sufficiently appear in the opinion.

Heard before Hon. J. B. Gaston. Rose Tolliver Stevens propounded for probate the will •of Hannah Chambless, which was contested by Belle P. Elmore. From a judgment sustaining a demurrer to contestant’s allegation of contest, contestant appeals. Having purchased in good faith from the only heir of the-testatrix Mrs. Elmore had the right of contest under section 6196, Code 1907. — Raney r. Ridgtray. 148 Ala. 524.

Heard before Hon. William.G. McCorvey. Mandamus by the State of Alabama on the relation of C'hanie Farnliam to compel D. D. Mims, as county treasurer, to pay warrant out of county funds. From a decree sustaining demurrers to the petition, relator appeals. The court erred in sustaining demurrers to the petition.- — Section 1598, Code 1907; Henry v. Cohen, 66 Ala. 382.

Original petition in the Supreme Court. Mandamus by the Butler-Keyser Manufacturing Company asking for the rule against S. L. Brewer, judge of the 5th judicial circuit, compelling him to set aside an order staying an action pending in his court. Writ for mandamus is the only proper and adequate remedy here. — Ex parte Mahone, 30 Ala. 46; State ex rel. v. Williams, 69 Ala. 311; Ex parte Redd, 73 Ala. 548; Ex parte Bar Assn., 92 Ala. 113.

Original petition in the Supreme Court. Mandamus by Caldwell Bradshaw directed against Hon. C. C. Nesmith, judge of the city court of Birmingham, for a rule requiring such judge to dismiss a cause for want of security for costs as fixed by him. The only question is the power of the court to override the mandates of section ■'3687, Code 1907. There are several lines of decisions as to this matter.

Original application in the Supreme Court. .Application by Andy J. Overton for writ of mandamus directed to the judge of the circuit court of Jefferson county, to require him to vacate an order setting-aside a judgment rendered by default. Rule denied. No brief reached the Reporter. The judge’s bench notes are never a judgment. — M. & G. .R. R. Go. v. Martin, 331 Ala. 269; Winn v. McCramy, 156 Ala, 630.

Heard before Hon. E. C. Crowe. Prohibition by Zanie Tavel to prevent John F. Kelton as judge, and others, from entertaining proceedings for condemnation. From an order to show cause why the petition should not be granted, the judge appeals- The objection that mineral lands cannot be condemned in such proceedings is untenable. — 10 A. & E. Enc. of Law 1101; Sec. 3484, Code 1907.

Heard before Hon. Samuel B. Browne, Quo Warranto by the state on the relation of N. R. Clarke against John E. Carter, requiring him to show by what authority he is claiming the right to exercise the functions and authorities of a justice of the peace. From a judgment dismissing the petition relator appeals. The journal sufficiently shows that the bill was referred to a standing committee as required by section 62 of the Constitution. ■ — Walker v. Montgomery, 139 Ala. 479.

Original proceedings in the Supreme Court. The State of Alabama on the relation of its Attorney General, files impeachment proceedings against Edgar E. Latbam, sheriff of Tuscaloosa County, basing the same upon the report of the grand jury of said county recommending impeachment. Defendant discharged.

Heard before 1-Ion. Thomas H. Smith, Bill by Sarah Folda against Robert Folda for alimony. From a decree granting same, respondent appeals.

Heard before Hon. H. A. S'harpe. Bill by Burr Nabors and L. N. Nabors against Thomas H. Woolsey to restrict the operation of a deed to respondent to an estate in the lands described for and during the natural life of said Sarah E. Nabors, and upon her death to immediately invest in orators property described in the bill, and for general relief. Prom a decree for respondent, complainants appeal. Reversed, rendered, and remanded.

. Heard before Hon. Thomas H. Smith. Bill by Carrie McGill Dickens. against Charles C. Dickens, Julian A. Watters, trustee in bankruptcy of said Dickens and others, with cross bill by Dickens and Watters seeking affirmative relief. From a decree for complainant Charles C. Dickens appeals, and both complainant and defendant Watters prosecute cross appeals. The court erred in striking the plea and in exercising jurisdiction of said cause. — 11 A. Bank. Rep. 761; 11 Am.

Heard before Hon. Thomas W. Wert. Bill by Anna Pucket against Leonard R. Packet and others, for divorce and alimony. From a decree for complainant, respondents appeal. The question of jurisdiction was properly raised by demurrer. — Harwell v. Lehman, 72 Ala. 344. Pleadings are construed most strongly against the pleader.- — Tate v. Evans, 54 Ala. 18; Stubbs v. Leavitt, 30 Ala. 352.

Appeal, from Shelby County Court. Heard before Hon. E. S. Lyman. Bill by Emma E. Killingsworth against Fred Hardy, to perpetually enjoin a judgment in ejectment, and to invest complainant with a legal title to the lands involved.. Judgment for complainant and respondent appeals. The husband was not competent to testify for the wife in this case. — Sec. 4007, Code 1907; Boykin v. Smith., (55 Ala. 294; Miller v.-Connor, 84 Ala. 59.

Heard before Hon. A. H. Benners. Bill by the Highland Realty Company against the Avondale Land Company, to have the attempted vacation of a plat declared null and void, and cancelled as constituting a cloud on complainant’s easement and right of way, to quiet complainant’s right as against the respondent, and to enjoin the respondent from interfering Avith and exercising any authority over said avenues, streets and alleys.

. Heard before non. W. H. Simpson. Bill by J. F. C. Hammer against Robert Lange and another, to reform a deed. Judgment for respondent and complainant appeals. A mistake of the kind here sought to be corrected may be shown by parol evidence and corrected in equity. — Miller v. Morris, 128 Ala. 164; Jones v. McNcaly, 139 Ala. 379; Stevens v. Hertzler, 114 Ala. 563; Houston v. Haul, 86 Ala. 237; Page v. Whatley, 50 South. 116.

Heard before Hon. A. H. Benners. . Bill by tbe Princess Amusement Company against Mrs. Lucy Smith, for an accounting to ascertain’ the value of a lease and for damages for the conversion of certain chattel.

Heard before Hon. Thomas H. Smith. Bill by Carrie McGill Dickens against Charles C. Dickens, in which defendant sought cross-relief. From decrees for complainant, both defendant and complainant appeal.

Heard before Hon. Thomas H. Smith. Bill by the Southern Grocery Company against W. B. Skinner and others, to declare certain conveyances fraudulent and void and to annul them. Prom a decree overruling demurrers to the bill respondents appeal.

Heard, before Hon. E. C. Crowe. Bill by Mrs. D. M. Smith and others, against the Birmingham Disinfectant Company and others, for appointment of a receiver, and for an accounting. From a decree appointing a receiver respondents appeal. Reversed and remanded. Tlie court erred in the appointment of a receiver. In the first instance the affidavits were on information and belief, and were, therefore, insufficient. — Schlicer v. Brock, et al., 124 Ala. 626; Pollardv. SouthernF.

Heard before Hon. A. H. Benners. Bill by Monroe Copenny against the Southern Realty Company and others, to have a deed declared a mortgage, and to redeem. Decree for respondent and com: plainant appeals. The deed was given as security for a debt, and the court erred in dismissing the bill. — 3 Pom. sec. 1195; Smith v. Smith, 153 Ala, 508.

Heard before Hon. W. H. Simpson. Bill by Sophia B. Troy against the Protestant Episcopal Church and others for a sale of land for division, and to require defendants to pay a proportionate part of the costs of a public improvement. From a judgment sustaining demurrers to the bill, plaintiff appeals.

Heard before Hon. L. D. Gardner. Bill by W. E. Gunter against Wayne Able to specifically enforce a contract. Decree for complaint and respondent appeals. The bond for title directed to be set out is as follows: “State of Alabama, Covington County. Know all men by these presents, that we, Wayne Able and H. H. Hogg, are held and firmly bound to W. E. Gunter in the sum of $2,200.00, for the payment of which we hereby bind ■ourselves, our heirs, and personal representatives.

Heard before Hon. John M. Ci-iilton, Special Chancellor. Bill by the Grand Lodge Knights of Pythias against the Grand Lodge Knights of Pythias of North and South America, Europe, Asia, etc., to enjoin and restrain the use of the name, and the use of badges, mottoes and insignias, etc. Prom a judgment overruling demurrer to the bill, respondent appeals.

Heard before Hon. W. W. Whiteside. Bill by Fannie A. Prouty against the Alabama Great Southern Railway Company, and others, to abate a nuisance, and for damages. From a judgment granting insufficient relief, complainant appeals. After the agreement of the co-tenant to convey, and after putting complainant in possession under that agreement, the grantor ceased to have any right therein. —Smith v. Price, 42 111. 399; Mistress v. Cress, 5 Pa.

Chancery Court. .Heard before Hon. L. D. Gardner. Bill by J. D. Deming against Walter Lee and others - to enforce a trust and for other relief. Decree for respondents, and complainant appeals.

Heard before Hon. John H. Disqtte. Bill by W. J. Sibert against Charles Hughes and Harriet Hughes to foreclose a mortgage. W. J. Sibert having died pending the suit, it was revived in the name of his executors, W. L. Sibert and others. Decree for respondents, and complainants appeal.

Heard before Hon. L. D. Gardner. Bill by Simpson & Harper against Harris & Scrandrett for an injunction to restrain tbe cutting of timber on certain lands. From a decree for defendants, complainants appeal. Tbe averments of tbe bill are sufficiently shown by the opinion.

<p> Bill for Partition and to Quiet Title. </p> <p>1. Quieting Title; Complaint; Sufficiency. — -A bill to quiet title should allege that no suit to try the title was pending, and that complainant was in peaceable possession, and failing therein was demurrable on either or both grounds.</p> <p>2. Partition; Bill; Construction. — ■A bill which alleges that the complainant and one of the respondents were joint owners of the land and prays that all the other respondents be required to propound their interest in the land, and that the interest of all be ascertained and the land divided, must be treated primarily as a bill for partition between joint owners.</p> <p>3. Same; Possession. — It is immaterial'-whether the complainants or respondents, or neither, are in possession to entitle one of several co-tenants to maintain partition.</p> <p>4. Equity; Bill; Multifariousness; Partition ancl Quieting Title.— A bill seeking partition and also to quiet claims of third person is multifarious. Courts of chancery have long employed their general powers to adjust equities between co-tenants growing out of that ownership of property sought to be partitioned, and sections 5231, 5232, Code 1907, are no more than a codification of the previous chancery powers, so that the power to adjust cláims and equities is merely that incidental to the partition, and to render it more effective, and does not extend to claims of third parties in possession, claiming adversely.</p>

Heard before Hon. L. D. Gardner. Bill by N. J. Bell against M. E. Bell and others, to foreclose a mortgage, with cross bill by respondents seeking affirmative relief. From a decree for complainants, respondents appeal. The controlling question in this case is whether or not the mortgage sought to be foreclosed should be given effect as a purchase money mortgage.

Heard before Hon. A. H. Benners. Bill by C. F. McEvers against the Bellview Cemetery Company to abate a nuisance. From a decree overruling demurrers to the bill, respondent appeals. The amendment as to the road is as follows: “Sec. 17.

<p> Divorce and Alimony. </p> <p>1. Dicoroe and Alimony; Separate Maintenance; Husband and Wife. — The statutes and chancery proceedings authorize a bill for alimony in the nature of separate maintenance without divorce.</p> <p>2. Same; Agreement. — The fact that the wife had not joined in executing certain conveyances as she had contracted to do in a separation agreement would not lea defense to an action for separate maintenance in which the agreement is set forth as bearing on alimony, if she had never been requested to do so.</p> <p>3. Same; Pleading. — The fact that the wife had refused to join in executing certain conveyances as she had contracted to do in a separation agreement should l e set up l y plea or answers, and not by demurrer as a defense to an action by her for separate maintenance.</p>

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by the Southern Steel Company against Wiley Hopkins, administrator, and others-, to enjoin a number of tort actions, to ascertain liability and damage. From a decree for respondents, complainants appeal.</p> <p>The bill had equity on the ground of multiplicity of suits, and the court erred in sustaining demurrers thereto. — Morgan v. Morgan, et al.; 3 Stew. 383; Cleveland v. Ins. Co., 44 South. 37; So. Steel Co. v. Hopkins, 157 Ala. 175, and authorities cited in said case.</p> <p>The bill was without equity, the court properly sustained demurrers thereto, and this court should recede from the position taken in the case of So. S. Go. v. Hopkins, 157 Ala. 175. —Brown v. Birmingham, 140 Ala. 590; Brickerhoff v. Bosttoick, 105 N. Y. 567, 12 N. E. 58; Nat. Tube Go. v. Smith, 110 Am. St. Rep. 771, 1 L. R. A. (N. S.) 195; Deepwater Ry. Go. v. Motter, 116 Am. St. Rep. 875; Freer v. Davis, 94 Am. St. Rep. 895, 59 L. R. A. 556; Story’s Equity, Sections 72, 73; Sadilier v. N. T., 185 N. Y. 408, 78 N. E. 272; Bumrd v. Huston, 119 U. S. 347; Winslow v. Geness, 64 Mick. 84; Dyer v. Doig, 2 Ves. Jr., 486; Marsellis v. Morris Ganal Go., 7 N. J. Eq. 31; Ward v. Northumberland, 2 Anst. 469; Morris and E. R. Go. v. Pueden, 20 N. J. Eq. 531; Hinchman v. Patterson R. Go., 17 N. J. Eq. 75; 86 Am. Dec. 252; Murphy v. Mayor of Wilmington, 22 Am. St. Rep. 355; Ritchie v. Dorland, 6 California 40; Schulenberg v. ' Town of Hayward, 20 Fed. 425; Scottish Union Insurance Go. v. Mohlman, 73 Fed. 68; Dodd v. Gity of Hartford, 25 Conn. 236; Swift v. Larrabee, 31 Conn. 239; Doggett v. Hart, 58 Am. Dec. 68; Woodward v. Seeley, 50 Am. Dec. 445; Storr v. P. & A. R. R. Go., 11 So. Rep. 229; Booneville National Bank v. Blakely, 76 N. E. Rep. 534; School District v. Rice, 81 Pac. Rep. 155; Scott v. Erie R. R. Go., 36 N. J. Eq. 355; Scott v. McFarland, 70 Fed. Rep. 281; Merrill v. Lake, 47 Am. Dec. 380; Hardin v. Swoope, 47 Ala. 276; Zulinger v. Hefner, 35 S. E. page 4; Tompkins v. Graig, 93 Fed. 885; Scott v. Neeley, 140 U. S. 106; Elridge v. Hill, 2 Johns, 281; N. T. R. Go. v. Amacker, 49 Fed. 529; s. c. 46 Fed. Re. 283; Manchester Fire Ins. Go. v. Stockton, 38 Fed. 378; Dodge v. Briggs, 27 Fed. 160; Hughes v. Hanna, 22 South. 613; Jones v. Rowbotham, 19 L. R. A. 663; Richardson v. Davidson, 53 Hun. 630; 5 N. Y. Supp. 617; Town of Mt. Zion v. Gillam, 14 Fed. 123.</p>

Heard before Hon. H. A. Pearce. Action for breach of contract by the Town of Dothan against the United States Fidelity & Guaranty Company. The allegations of the complaint to which demurrers were overruled sufficiently appear from the opinion.

Heard before I-Ion. J. C. B. Gavin. Action by A. S. Cowan, as trustee in bankruptcy, against the National Surety Company and others for breach of a bond given to A. Dreber & Co. and others. From a judgment for defendants, plaintiff appeals.

Equity Court. Heard'before Hon. Edward J. Gilder. Action by tbe firm of C. W. Hooper & Co. against the Marengo Abstract Company for breach of contract. Judgment for plaintiff, and defendant appeals. The contract set out in the complaint is as follows: “Selma, Ala., May 25, 1909.

Heard before Hon. B. M. Miller. Action by Lulu T. Allen against the Mutual Life Insurance Company of New York on a policy issued on the life of her husband. Judgment for plaintiff, and defendant appeals. For former appeal in this case see. — Mutual L. I. Co. v. Allen, 166 Ala. 159. A misrepresentation renders a policy void on the .-ground of fraud. — Ala. G. L. I. Co. v. Johnson, 80 Ala. 470. Each of the pleas stated a good defense. — Mut. Jj.

Heard before Hon. Albert E. Barnett. Action by T. S. Sturdivant and others doing business under the name and style of the Bank of Camp Hill against Phabra Anthony, as executrix, etc., upon a joint note. Judgment for plaintiff and defendants appeal. The main question in this case was whether or not the discharge in bankruptcy operated to render the surviving joint maker competent to testify against the executrix of the deceased joint maker.

Heard before Hon. A. A. Coleman.. Action by the American Amusement Company against the East Lake Chutes Company for work and labor done and materials furnished. Judgment for defendant, and plaintiff appeals. Affirmed.

Heard before Hon. H. A. Pearce. Action for breach of contract by Hugh G. Smith against J. S. Sherman. From a judgment of nonsuit, taken after tlie sustaining of demurrers to the complaint, plaintiff appeals.

Heard before Hon. Saffold Beb/ney. Action by Edward Gf. Fike against Georgia K. Stratton to enforce a material-man’s lien. From a judgment for insufficient damages, plaintiff appeals. The complainant declares for $1,015 on account for work and labor and for materials furnished in remodeling and improving a residence.

Heard before Hon. Edward J. Gilder. Action . by tlie Mutual Alliance Trust Company against John G. Coats on a note. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. A. Coleman. Action by II. L. Vines against the Queen Insurance Company of North America, on a fire insurance policy. Judgment for plaintiff and defendant appeals. Under the evidence in this case the inventory and the books were not taken and kept as required by the iron safe clause in the policy. — 2 Cooley on Insurance, 181; 48 S. W. 559; 67 S. W. 153; 36 S. E. 622; 19 Cyc. 762; 4 Words & Phrases, 3755.

Heard before Hon. W. W. Haralson. Action by Milton IT. Evans against the Bixby-Theisen Company. Judgment for plaintiff and defendant appeals.

Appear from Montgomery City Court. Heard before Hon. Gascon Gunter. Action by Walker Reynolds against Henry F. Vandiver to recover the purchase price of lands. Judgment for plaintiff and defendant appeals.

Heard before Hon. Henry B. Foster. Action.by William T. Robertson, Jr., against the Tennessee Coal, Iron & Railway Company, for damages, for injuries suffered while in its employ. Judgment for defendant and plaintiff appeals. The court erred in sustaining demurrer to counts 4 and 6 of the complaint. —M. & O. v. George, 94 Ala. 214; A. G. S. v. Dams, 24 South. 863; West Pratt G. Go. v. Andrews, 43 South. 348; Huych v. McNerney, 50 South. 926.

Heard before Hon. D. -W. Speaice. Action by George W. Handley against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. The substance of the complaint is sufficiently stated in the opinion.

Heard before Hon. William H. Th'omas. • Action by Richard H. Hutcherson against the Louisville & Nashville Railroad Company, for injuries received while in its employ. Judgment for plaintiff and defendant appeals. Counsel insist that defendant was entitled to the affirmative charge under the evidence in this case. — Peters v. Southern By. Go., 135 Ala. 533. Motion for a new trial should have been granted. — Bingham v. Davidson, 141 Ala. 551.

Heard before Hon. J. C. B. Gwin. Action by Benton H. Neyman, as administrator,, against the Alabama Great Southern Bailway Company,, for damages for the death of his intestate. Judgment for defendant and plaintiff appeals. Counsel discuss assignments of error relative to evidence, but without citation of authority.

Heard before Hon. Thomas W. Coleman, Jr. Action by Arthur Drew against the Western Steel Car & Manufacturing Company, for injuries sustained while in its employment. Judgment for defendant and plaintiff appeals.

Heard before Hon. O. W. Ferguson. Action by Mack Woody against tbe Republic Iron & Steel Company, for damages for injury suffered while in its employ. Judgment for plaintiff and defendant appeals.

Heard before Hon. A. O. Lane. Action by E. A. Fuqua, as administrator, against the Birmingham Railway, Light & Power Company, for the death of his intestate, by being run over or upon by a street car on a public street. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Charles A. Senn. Action by Mrs. Alice MeFarlin, administratrix of Reuben W. MeFarlin, deceased, against the Alabama Great Southern Railroad Company, for death of intestate. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear in the opinion of the court, taken in connection with the dissenting opinion. The following charges were refused to defendant: (1) General charge for the defendant.

Heard before Hon. Charles A. Senn. Action by Carl Eos, administrator of Lillie Newman, •against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals.