Volume 175 — Alabama Reports

' Henry Parris ivas convicted of murder in tbe second degree, and be appeals. Tbe plea in abatement is based on tbe fact that tbe judge of tbe circuit court, whose duty it was to draw tbe grand jury wbicb returned tbe indictment, did not draw it before tbe last term before tbe present term of tbe circuit court adjourned, but that the court, on about tbe 24th day of March, 1910, drew from tbe jury box of Fayette county tbe grand jury.

Heard before Hon. Armstead Brown. John Adams ivas convicted of murder in the first degree, and he appeals. It appears from tlie facts in the case that Ellington and Berry, two policemen, went to the home of John Adams to arrest him on a misdemeanor charge, Ellington being armed with a warrant for his arrest; and that in attempting to make the arrest Berry was killed and Ellington wounded by Adams.

Heard before Hon. C. P. Almon. Bart Roberson -was convicted of murder, and he appeals. The rulings as to the evidence sufficiently appear from the opinion of the court.

Heard before Hon. H. A. Pearce. Henry McSwean was convicted of a capital offense, and he appeals. The judgment should affirmatively show an order requiring a copy of the indictment against the defendant to. be served upon him one day at least before the day set for his trial. — Sec. 7840, Code 1907; Lomineck v. The State 39 South. 676. This is mandatory. — Spicer’s Case, 69 Ala. 159; Green v. The State, 160 Ala. 1.

Question certified from Court of Appeals. The question certified is as follows: In the above entitled case the Judges of the court being unable to reach an unanimous conclusion or decision, the undersigned Judges of said court, pursuant to the provisions of the statute in such case made and provided, hereby, certify to the Supreme Court of Alabama for determination the following questions of l.aw as to which the said Judges differ, as abstract propositions as directed and…

Heard before Hon. A. 0. Lane. Action by Lillian Bush against the Birmingham Railway, Light & Power Company, for damages for injury received in collision with a street car on a public street. Judgment for plaintiff and defendant appeals. The court erred in overruling demurrers to the first count as amended. — B. R. L. & P. Go. v. Weathers, 164 Ala. 23; Republic I. & 8. Go. v. Williams, 53 South. 78.

Heard before Hon. A. O. Lane. Action by Annie E. White against the Central of Georgia Railway Company, for damages for injuries received while a passenger. Judgment for plaintiff for $16,000.00, and defendant appeals.

Heard before Hon. D. W. Speake. Action by W. F. Rice as administrator, against the Southern Railway Company, for damages for the death of his intestate. Judgment for defendant, and plaintiff appeals.

Heard before Hon. C. P. Almon. Action by R. L. Wallace against the Southern Railway Company, for failure to deliver stock at point of destination. Judgment for plaintiff and defendant appeals. A contract in violation of a criminal law cannot be made the basis of a recovery. — W. U. T. Go. v. Young, 138 Ala. 240; Youngblood v. fi. T. & 8. Go., 95 Ala. 526; W. U. T. Go. v. Walters, 139 Ala. 652; Boyette v. 8. G. & 0. Go., 146 Ala. 554; McNeel v. Dunham, 95 Am. St. Rep. 641.

Heard before Hon. A. O. Lane. Action by Mrs. Inez B. Jones against Ike Adler. Judgment for defendant on demurrer, and plaintiff appeals.

<p> Personal Injury Action. </p> <p>Pleading; Conclusion; Contributory Negligence. — Where the action was for injury to plaintiff caused by falling down an elevator shaft, and the complaint alleged the existence of a dangerous opening, and the failure of the defendant to warn plaintiff of the existence thereof, to guard the opening, and to keep the premises in a reasonably safe condition, a plea alleging that plaintiff proximately contributed to the injury, in that he negligently stepped into the opening causing the injury, was a conclusion of the pleader, and subject to demurrer on that ground.</p> <p>(Sayre, J., dissents.)</p>

<p> Death from Defeet of Street. </p> <p>1. Municipal Corporation; Defective Street; Action; Complaint.— Where the action was against the city for the death of a child caused by permitting water to flow along a street in such quantity, and with such force as to carry the deceased into the mouth of a sewer pipe negligently left open, an averment in the complaint that the city negligently allowed the street to become in a dangerous condition, was a sufficient allegation of implied or constructive notice thereof to the city authorities.</p> <p>2. Same; Defenses; Plan.■ — Where the action was against a city for the death of a child caused by the negligence of the city in permitting water to flow into the street in such quantities, and with such force as to sweep decedent into the mouth of a sewer left open, the city cannot escape liability on the ground that the accident was the result of a defective sewer plan, where it appeared that there was a palpable lack of skill in constructing the sewer, which should have been appreciated by men of ordinary understanding, or where its unfitness had been demonstrated by previous experience.</p> <p>3. Same; Duty of Corporation. — While the municipality is not bound to provide an underground sewer system, yet, having undertaken to provide such a system, it becomes its duty to see that a proper one is provided which will not leave the street ill a dangerous condition.</p> <p>4. Same; Evidence. — Where the action was against a city for the death of a child caused by a defective sewer, it was not competent to show that other well regulated cities followed the same plan in constructing sewers.</p> <p>5. Same; Pan-ties. — Where the action was begun against the mayor and aldermen of the municipality, and pending the suit and before judgment, section 1046, Code 1907, was enacted, judgment was properly rendered against the defendant, as named in the complaint, under the provisions of section 1050, Code 1907.</p> <p>6. Death; Action For; Right to Recover. — The administrator of the estate of a deceased child may recover damages for its death, although the parents or other persons having control of the child were guilty of contributory negligence.</p> <p>7. Same; Action ~by Administrator; Statute. — Where the right of action for the death of a child arose prior to the adoption of the Code of 1907, action therefor might be brought by the personal representative under section 26, Code 1896, though the infant left parents surviving him, upon whom section 2485, Code 1907, conferred the right to sue, since it is provided in the act adopting the Code of 1907, that its adoption should not affect existing rights.</p> <p>8. Evidence; Opimon Evidence. — In an action against a municipality for the death of an infant drowned in an alleged defective sewer, expert testimony that the sewer system as provided was reasonably safe, was inadmissible as usurping the functions of the jury.</p>

<p> Collision Accident. </p> <p>1. Negligence; Violation of Ordinance. — The violation of an ordinance is negligence per se, and entitles one to damages who has been injured in person or estate as a proximate result thereof.</p> <p>2. Same; Contributory Negligence. — Where the plaintiff violates an ordinance, it may be contributory negligence if it proximately contributed. to the injury, provided the ordinance was enacted for the defendant’s benefit, and not merely for the public generally, or for a class.</p> <p>3. Street Railways; Collision Accident; Contributory Negligence. —As the ordinance requiring vehicle drivers to keep to the right of the center of the street was not enacted for the benefit of a street car company, though their tracks be in the center of the street, such street car company is not in position to plead contributory negligence on account of the owner being in the center of the street contrary to the ordinance, when sued for damages to an automobile, caused by one of its cars striking it.</p> <p>4. Same. — The driver of an automobile running ahead of a street car was not-guilty of contributory negligence in failing to signal the motorman to stop unless such driver knew that the car was approaching.</p> <p>5. Same; Accident; Evidence. — Where the evidence showed that the automobile was being run astride the south rail of the street ear track which was twelve feet from the south curb, while the north rail was fifteen feet from the north curb, the automobile was on the right hand side of the center of the street, and an ordinance requiring vehicle drivers to keep to the right of the center of the street became irrelevant and immaterial.</p>

<p>Appeal from. Birmingham City Court.</p> <p>Heard before Hon. Charles W. Ferguson.</p> <p>Action by William D. Coivden against the Alabama Consolidated Coal & Iron Company. Judgment for plaintiff, and defendant appeals.</p> <p>The pleadings and facts sufficiently appear from the opinion. The following charge was refused to the defendant: (2) “If you believe from the evidence that the mule was frightened by the whistle, and if you also believe from the evidence that the whistle was only bloAvn in a careful and proper manner, and that the plaintiff was not Avillfully, Avantonly, or intentionally injured, you must find for the defendant.” The fifth assignment of error is as follows: “The court erred in the following part of its oral charge: £If you are reasonably satisfied from the. evidence in this case that this was done with a wanton disregard of the plaintiff’s rights, and with a knowledge of the situation, and that to bloAV the whistle and continue to blow the whistle would result in injury to the plaintiff, if you are reasonably satisfied from the evidence in this case that that state of facts existed, Avhy, as I have already stated, you would have the right to inflict what the laAV calls punitive damages.” The fourth assignment of error was to the following part of the oral charge: “ £Noav, verdicts always are desirable, because trials are expensive. They are expensive, perhaps, to both sides, and the laAV don’t like mistrals.’ Relative thereto, the court said, after exception Avas taken: £Now, gentlemen, I Avant to say another word on this subject of a verdict. Of course, the court or anybody else don’t know Avhat your verdict will be, and Avhat the court had to say with reference to bringing in a verdict or having a mistrial is not intended to intimate one Avay or the other, because, as I said, the court don’t know — it has no way in the world of knowing — what your verdict may be. Noav, if, after full, fair, and conscientious consideration of the evidence in this case, you can’t reach a unanimous verdict, and that is what the law requires, why, then, after you have — after you have done that, it would have to result in a mistrial, if you are unable to reach a verdict after full, fair, and conscientious consideration of all the evidence in the case/ ”</p> <p>The court should have sustained demurrers to the 1st count. — Stanton v. L. cG A., 91 Ala. 382; Oxford L. Co. v.Stedham, 101 Ala. 376; B. R. L. & P. Co.v. Weathers, 51 South. 303; 12 Am. Rep. 396; 22 Am. Rep. 522; 104 N. W. 617; 51 Am. Rep. 496; 47 Am. Rep. 592; L. & A. v. VanZant, 158'Ala. 527; Cleghorn v. Western Ry., 134 Ala. 601; L. cG A. R. R. Co. v. Lee, 136 Ala. 182. The court erred in refusing charge 2. — Stanton v. L. & A., supra. The court erred in its oral charge as to the conduct and demeanor of witnesses. — Boswell v. Thompson, 160 Ala. 306; Berneyv.Torrey, 14 South. 685; Paul v. The State, 14 South. 634; Crimes v. The State, 63 Ala. 166; L. & A. v. Watson, 90 Ala. 68. The court erred in charging that the jury had a right to inflict punitive damages, as the charge omitted proximate cause. — B. R. L. & P. Co. v. Moore, 163 Ala. 43; Same v. Jones, 146 Ala. 277; Hudgins v. So. Ry., 148 Ala. 154. The answer of the witness stated a conclusion, and was ojectionable. — So. Ry. v. Taylor, 148 Ala. 52; Rarden v. Cunningham, 136 Ala. 263.</p> <p>The 1st count was not subject to demurrer. — 7 Inch App. 171; B. R. L. é P. Co. v. Weathers, 51 South. 303, and cases cited; Same v. Haggard, 155 Ala. 343; Same v. Adams, 126 267; Same v. Jung, 161 Ala. 467; H. A. cG B. v. Miller, 120 Ala. 535; L. & A. v. Church, 155 Ala. 329; Armstrong v. Mont. St., 123 Ala. 233; B. R. L. & P. Co. v. Jordan, in MSS; 167 Inch 330. The demurrer does not raise the question of the allegation of ordinary gentleness, and hence, it will not be considered. There was no error in refusing charge 2. — Authorities supra. Error cannot be based on excerpts from a charge, but the charge must be construed as a whole. — So. Ry. v. Lynn, 128 Ala. 298. Counsel discuss the other charges objected to, but without further citation of authority.</p>

<p>' Appeal from Montgomery Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>' Action by Julius D. Phelps against the Alabama Chemical Company, for damages for injuries received while in its employment. Judgment for plaintiff, and defendant appeals.</p> <p>The court erred in overruling defendant’s motion to strike that part of the witness’ testimony to the effect that Austin said the acid was dropping from the pipe, a drop every two or three minutes. — M. cG M. R. R. Co. v. Ashcraft, 48 Ala. 15; 72 Ala. 117; A. G. S. v. Ilawhs, 72 Ala .112. The court erred in rendering a verdict for the plaintiff on the evidence, first, because plaintiff failed to sustain the burden of proof to show that, he was injured by acid dropping from tbe end of tbe pipe. — So. Ry. Oo. v. McGowan, 149 Ala. 440; Rehearing opinion, 149 Ala. 456. The evidence does not show a negligent failure to furnish appellee with a reasonably safe place in which to work. Appellee assumed the risk of employment.— G. G. & 8. Ry. Go. v. Jackson, 12 C. C. A. 507; Chicago Edi. Go. v. Davis, 93 Ind. 285. Phelps had knowledge of the acid mixture in the bins which will prevent his recovery. — 26 Cyc. 1203, and authorities supra.</p> <p>Part of the evidence was clearly competent and the motion to exclude it all was properly denied. — Davis v. The State, 131 Ala. 10; Ray v. The State, 126 Ala. 9; Wright v. The State, 136 Ala. 139. The movant itself brought out the testimony. — Curtis v. Parks & Go., 136 Ala. 224. There was no error in rendering the verdict for the plaintiff on the evidence. — Robinson M. Oo. v. Colbert, 132 Ala. 462; W. Pratt G. Go. v. Andrews, 150 Ala. 368; Bir. T. Oo. v. Reville, 136 Ala. 335; Osborn v. Ala. S. é W. Go., 135 Ala. 575. The common law duty is to provide a reasonably safe place for the servant to work. — Wolf v. Smith, 149 Ala. 457; 26 Cyc. 1097. Also to warn of latent danger. — 5 Mayf. 643. The plaintiff did not assume the risk of danger from other sources and places. —26 Cyc. 118.</p>

<p> Injury to Servant. </p> <p>Master and Servant; Injury to Servant; Contributory Negligence. — Under the facts in this case it is held that plaintiff’s failure to avoid the danger arising from defects in the machinery was at least due to inattention, absent-mindedness or thoughtlessness' and hence, plaintiff was guilty of contributory negligence proximately contributing to his injury.</p>

Heard before Hon. C. W. Ferguson. Action by Millage Briggs against tbe Tennessee Coal, Iron & Railroad. Company for injuries while engaged in its employment. Judgment for defendant, and plaintiff appeals. A trial was bad and judgment entered under tbe following facts: On tbe 25th day of March, 1910, judgment was rendered in favor of tbe defendant, and tbe judge’s bench notes showed as follows: “By leave of tbe court, plaintiff refiled bis complaint and amendments thereto.

Heard before Hon. Charles W. Ferguson. Action by Rafaella Baranco against the Birmingham Terminal Company, for damages for obstructing a street. From a non suit occasioned by the refusal of the court to permit an amendment, plaintiff appeals. The statutes found in the Code of 1907 did not change the law existing previous to their enactment. The amendment offered was not a change of parties, and introduced no new cause of action.

Heard before Hon. Charles W. Ferguson. Action by Enola N. Harris against the Randolph Lumber Company, for damages for maintaining a nuisance. Judgment on demurrer for defendant, and plaintiff: appeals.

<p>Appeal from Andalusia City Court.</p> <p>Heard before Hon. A. L. Rankin.</p> <p>Action by Henry Lunday against the Miller-Brent Lumber Company and others for trespass to land and personal property. Prom a judgment for plaintiff, defendants appeal.</p> <p>The first, second, and fourth counts are in trespass to realty. The third count is as follows: “The plaintiff aforesaid, claims of the defendant aforesaid the other and further sum of fl,000 damages for wrongfully taking the following goods and chattels, the property of the plaintiff, to wit, 3,000 pine rails and 3,000 pine boards.”</p> <p>The demurrer to the 3rd count should have been sustained. — Snedecor v. Pope, 143 Ala. 275; Glenn v. Garrison, 17 N. J. L. 1; Kendall v. Bay Slate B. Go., 125 Mass. 532; 38 Cyc. 1082; 2 lEnc. P. & P. 811.</p> <p>The complaint as to the 3rd count was for trespass to personal property, and follows the exact language of form 23, p .1199, Code 1907, and was, therefore, sufficient. The case of Bnedecor v. Pope, 143 Ala. 275, and the other authorities cited by appellant are cases in trespass to realty, and have no application to the case at bar.</p>

Heard before Hon. H. A. Sharpe. Action by G. B. Duy against the Alabama Western Railroad Company for damages for obstructing street. Judgment for defendant, and plaintiff appeals.

Certified question from the Court of Appeals. Action by Groesbeck & Armstrong against the Central of Georgia Railway Company, for failure to furnish cars to ship goods. Judgment for plaintiff and defendant appeals to the Court of Appeals, which certified the question decided to the Supreme Court. No brief reached the Reporter. No brief reached the Reporter.

Appear from Bessemer City Court. Heard before Hob. J. C. B. Gwin. Action by William T. Orotwell against Thomas F. Robinson for malpractice. From a judgment for plaintiff, defendant appeals.

Heard before Hon. Samuel B. Browne. Action by Mrs. Mary E. Slaughter against J. M. Cooper and another in trespass and for the statutory penalty for cutting trees. Judgment for plaintiff, and defendants appeal. Affirmed. The pleadings are sufficiently noted in the opinion.

Heard before Hon. W. W. Haeals'on. Action by W. E. Killian against G-. W. Killian and another. Judgment for defendants, and plaintiff appeals. The facts sufficiently appear from the opinion of the court.

H. A. Pearce. Action by William J. Hancbey against John F. Brunson. From a judgment for defendant, plaintiff appeals. The third count was for false imprisonment, declaring on a warrant issued by R. A. King, clerk of the county court of Coffee county, on December 3, 1908, on a charge of embezzlement. The amendment proposed set up that the warrant was issued by Gus Owens, a justice of the peace of Coffee county, on December 3, 1908, on a charge of embezzlement.

Heard before Hon. Tangled Betts. Action by E. R. Grogan against Abingdon Mills for damages for malicious prosecution. Judgment for plaintiff and defendant appeals. Under the evidence defendant was guilty of the offense for which he was prosecuted. — 3 Words & Phrases, 2410; 8 Id. 7651; 99 N. IV. 541; 9 N. IV. 487. Charges 11 and 12 should have been given. — Fleming, et al. v. L. cC- N., 148 Ala. 527; Lynch v. Sneed, 21 L. R. A. (N. S.) 852; Fla.

Heard before Hon. A. 0. Lane. Action by Charlie Smith against the Sloss-Sheffield Steel & Iron Company, for damages for false imprisonment. Judgment for plaintiff and defendant appeals.

Heard before Hon. D. W. Speaks. Action by Henry Broom against W. H. Douglass, a justice of tbe peace, and others, for trespass to the person by false imprisonment. Judgment for defendants, and plaintiff; appeals. As to what is jurisdiction see Lamar v. Gunter, 39 Ala. 338; Drake v. State, 68 Ala. 512; Woodruff v. Stewart, 63 Ala. 211; Wilson v. State, 117 Ala. 160; 1 Smith’s Leading Cases, 1107; Two Rivers Mfg. Go. v. Byers, 17 Am. St. Rep. 113 and note.

Heard before Hon. W. W. Pearson. Action by B. Wolff and others, against Paul Mc-Gfaugh, for damages for trespass to realty. Judgment for plaintiff in the justice court, and on appeal to the circuit court, defendant was allowed to file a plea to the jurisdiction, and plaintiff reserves the question.

Heard before Hon. William H. Thomas. Action by Minnie Reese Richardson and others, by next friend against J. A. L. W. Mertins, in trover. Judgment for defendant and plaintiffs appeal. The plea did not take into consideration the .provisions of section 4846, giving minors the right to sue until the termination of their disability, and hence, this section and its citation disclose the error of the court in overruling the demurrers to plaintiff’s replication.

Heard before Hon. S. L. Brewer. Action by B. F. Nabors against R. T. Brown and others, for trespass to realty. Judgment for defendant and plaintiff appeals. Counsel discuss the assignments of error on the merits and cite authority in support of their contention, but in view of the opinion it is not deemed necessary to set them out.

Heard before Hon. S. H. Sprott. Action by A. P. Loveman & Co. against the Alabama, Tennessee & Northern Railroad Company for failure to deliver cotton. Judgment for defendant, and plaintiffs appeal. It appears from the evidence that the cotton was in a warehouse in Aliceville that was owned and operated by Arch Hood, who urns also cotton agent for the defendant company for Aliceville.

Heard before Hon. W. W. Pearson. Action by Leo Gassenlieimer against the Western Railway of Alabama, for damages for assault and battery alleged to have been committed on him by one of defendant’s freight delivery clerks. Prom, a judgment overruling motion for new trial plaintiff appeals. Reversed and remanded. The motion for a new trial should have been granted. — A. €f. S. v. Poioers, 73 Ala. 248; Cobb v. Malone, 92 Ala. 630; T. O., I. & R. R. Go. v. Stevenson, 115 Ala.

Heard before Hon. J. T. Blackwood. Action by W. A. Harris against the Southern Cotton Oil Company and others. From a judgment for plaintiff, defendants appeal. The action ivas for wrongfully taking a stock of goods, wares, and merchandise of the plaintiff, located at the storehouse of the plaintiff at Gum Springs, in Blount county, Ala.

Heard before Hon. C. C. Nesmith. Action by Thomas H. Wildman against Evans Brothers Construction Company, and others, for damages for trespass to land by entry and removal of building. Judg- ment for defendant and plaintiff appeals. Any person injured by the criminal act of another has his action for damages caused by the criminal act. — Müler-Bfent L. Go. v. Stewart, 166 Ala. 657; Morris v. McClellan, 169 Ala. 90; Smith v. Gafford, 31 Ala. 45; 3 Main. 458; 67 Mass. 83.

Heard before Hon. A. O. Lane. Action by Hate D. Drennen, as administratrix, against tbe Birmingham Bail way, Light & Power Company -for damages for death of her intestate, alleged to have been caused by a collision with one of defendant’s cars. Judgment for plaintiff in the sum of $7,000, and defendant appeals. The facts sufficiently appear from tbe opinion of tbe court.

Heard before Hon. E. C. Crowe. Action by Lula Ogburn'against the Continental Casualty Company on an accident and death policy. Judgment for plaintiff, and defendant appeals. Plea 6, after quoting part 1 of the contract as set out in the opinion, avers that the insured did not receive personal bodily injuries which caused at once and continuously after the accident a total inability to engage in any and every labor or occupation.

Crenshaw Circuit Court. Heard before Hon. A. E. Gamble. Action by Steiner, Lobman & Frank against T. W. Shows, on a guaranty. Judgment for plaintiff on a directed verdict, and defendant appeals. An undertaking of guaranty is primarily an offer, and does not become a binding obligation until its acceptance, and notice of acceptance given to the guarantor. — 1 Brandt on Suretyship, sec. 205 and note 20; 20 Cyc. 1404, and note 48.

Heard before Hon. W. W. Haralson. Action by the Birmingham Trust & Savings Company against W. W. Currey and others. From a judgment for defendants, plaintiff appeals. See, also, 160 Ala. 370, 49 South. 319, 135 Am. St. Rep. 102. The action is in assumpsit on certain promissory notes executed by Currey, with the others names as sureties, to Hooper & Co., and by Hooper & Co. indorsed to the plaintiff.

Heard before Hon. William: H. Thomas. Action by O. J. Pruett against the County of Montgomery. Judgment for plaintiff and defendant appeals. The demurrer was general, and hence, was improperly sustained. — Cowan p. Motley, 125 Ala. 371; Sledge v. Swift, 53 Ala. 110. The plea was good and the demurrer improperly sustained. — K. C. M. & B. v. Burton, 37 South.'240; 'Bnell v. Derricot, 49 South; 895; Milligan v. Pollard, 112 Ala. 465; Prior v. Beck, 21 Ala. 393.

Heard before Hon. H. A. Pearce. Action by Bluthenthal & Bickart against the city of Columbia upon certain promissory notes. Judgment for defendant and plaintiff appeals. The note was a commercial paper. — Acts 1909, p. 154. Cities have power to borrow money and make notes. — Sec. 1409. Power to borrow carries with it the power to issue the usual evidence of indebtedness. — Lytle v. Bank, 121 Ala. 215; 138 U. S. 1609.

Heard before Hon. J. C. Richardson. Ejectment by S. J. Pendrey against Daniel Godwin and another. From a judgment of nonsuit, plaintiff appeals.

Apppeal from Lawrence Circuit Court. Heard before 1-Ion. D. W. Speake. Ejectment by W. T. Lowe and’ others against S. A. McBride. Judgment for plaintiffs and defendant appeals. The cleecl Avas inadmissible because made in Jackson county, Alabama, and acknoAvledged before a Tennessee notary Avho did not attach his seal. The court erred in admitting the record as section 3374, Code 1907, provides for a certified transcript of the record.

Heard before Hon. H. A. Pearce. Ejectment by J. 'S. Beard against John DuBose. Judgment for defendant on a directed verdict, and plaintiff appeals. The only question presented is the right of courtesy in the husband under the statute laws of Alabama, it not being shown that any child was ever born to John and Betty DuBose. The husband takes as a distributee of the wife’s estate. — S'ection 3765, Code 1907.

Heard before Hon. Saffold Berney. Ejectment by T. E. Brue against Thomas N. McMillan. Judgment for defendant and plaintiff appeals. The patent was not properly executed and was void, and hence, the court erred in permitting defendant to introduce the patent purporting to have been executed by the Governor by his secretary. — So. By. v. Cleveland, 53 South. 767.

Heard before Hou. I-I. P. Merritt, Special Judge. Ejectment by E. W. Thomas and others, as trustees, against Lafayette L. Busbee and others. Judgment for plaintiffs, and defendants appeal. The oral charge of the court, excepted to, is as follows : “I charged you as a matter of law this morning that the boundaries govern, and that is still my charge to you.

Heard, before Hon. W. W. Haralson. Ejectment by E. Leath against E. Cobia and others. Judgment for defendant and ¡plaintiffs appeal. The court erred in overruling plaintiff’s demurrers to pleas 1 and motions to strike filed by plaintiff. — 7 Ene. P. & P. 238; People v. River R. Co., 12 Mich; Richardson v. Stephenson, 114 Ala. 238; Zirlde v. Jones, 129 Ala. 444.

Heard before Hon. Hugi-i D. Merrill. Ejectment by Julia A. Bell and others against A. D. Leggett and others. Judgment for defendants and plaintiffs appeal.

Heard before Hon. S. L. Brewer. Ejectment by Hudmon &• Company against A. B. Mills & Company. Judgment for plaintiffs and defendants appeal.

Heard before Hon. Samuel B. Browne. Ejectment by Mary Henry against L. I. Brannan. Judgment for plaintiff and defendant appeals. See also 142 Ala. 698; 89 South. 92; 110 Am. St. Rep. 55. The Act 'of April 4, 1911, is unconstitutional, because violative of section 45 of the Constitution of 1901, as well as section 95, Constitution 1901. — M. J. & K. C. v. Turnipseed, 219 IT. S. 35.

Heard before Hou. H. A. Pearce. Ejectment by L. A. Culver and others, against J. S. Carroll. Judgment for defendants, and plaintiff appeals. Under the evidence in this case the deed was not shown to be so effectually delivered as to pass title to the grantees therein named.

Heard before Hon. John W. Inzer. Ejectment by tlie Curtis-Attalla Lumber Company agaist Obal Christopher, revived after his death against G. E. Christopher and others, as his heirs. From a judgment for plaintiff, defendants appeal. The facts sufficiently appear from the opinion. The oral charge is set out in the opinion also.

Heard before Hon. A. H. Alston. Detinue by tbe John Deere Plow Company against the City Hardware Company to recover certain goods sold under a conditional contract. Judgment for defendant and plaintiff appeals. The court erred in overruling plaintiff’s demurrer to defendant’s rejoinder No. 2. Counsel indulge in argument to .show this is true, but cite no authority-in support of their argument.

Heard before Hon. Ti-iomas W. Coleman, Jr. Detinue by the John Deere Plow Company against the City Hardware Company. Judgment for defendant, and plaintiff appeals. The contract referred to ivas a regular contract of sale' of certain farming implements manufactured by plaintiff, and contained a great many conditions, but with a retention of title in the John Deere Plow Company, and a right to retake.

Heard before Hon. Price Williams, Jr. Petition by Jane Brnce Sierra for the probate of the will of Catherine L. Bruce, deceased, and Catherine L. Bruce and others appeared to contest the probate. Prom a decree admitting the will to probate, contestants appeal.

Heard before Hon. J. P. Styles. Sallie Prince and Lizzie Edwards filed rival petitions for letters of administration upon the estate of John Edwards, deceased. Prom an order granting letters to petitioner Edwards, petitioner Prince appeals. A man can have but one lawful wife living. — Salter v. The State, 92 Ala. 68; Matrin v. Martin, 22 Ala. 86; 141 Mass. 385.

Circuit Court. Heard before Hon. Hugh D. Merrill. Proceedings to raise the taxes and fix the value of the property of the Ide Cotton Mills for taxation. From a judgment of the circuit court dismissing an appeal by the state from an order of the Court of County Commissioners fixing the value of the property, the state appeals.

Heard before Hon. E. C. Crowe. Action by Cora Beyers, pro ami, against George II. McLaughlin. Prom an order imposing cost as a condition to granting defendant’s motion for a continuance, he appeals. Under the testimony the court should have granted a continuance without tlie imposition of costs. — -Spann v. 'Torbert, 130 Ala. 541.

Heard before Hon. Thomas W. Wert. Quo warranto by the State, on the relation of Pierce Patillo, against James L. Draper, to determine the right to the office of City Commissioner of Hartselle, Ala. There was a decree for relator, and defendant appeals.

Heard before Hon. C. P. Almon. Election contest by William J. Lowery against Sidney J. Petree for the office of judge of probate. From a judgment dismissing tlie petition, because of failure to give statutory bond, contestant appeals.

Heard before Hon. D. W. Speak®. Information by the State on the relation of W. T. Vandiver in the nature of quo warranto directed against E. I. Burke as judge of the county court. From judgment sustaining demurrer to the information relator appeals. The pivotal point in this case is of course the status of the county court of Cullman county, for if it is a court of record, then section 154, Constitution 1901, applies.

Heard before Hon. W. W. Pearson. Information by the State on the relation of C. E. Crensbaw, Jr., and another, in the nature of quo warranto, directed to E. B. Joseph, and the others constituting the City Commissioners of Montgomery. From a judgment for respondent, relators appeal.

Heard before Hon. E. C. Crowe. Mandamus by John J. Jordan, defendant-appellant in an action for divorce brought by Annie Jordan, praying in the alternative that, upon denial of a motion to require the adverse party to pay costs of previous suits as a condition precedent to prosecution and to vacate allowance of alimony pendente lite, to require the Jefferson circuit court to stay proceedings until payment of costs, and to show cause why the order allowing alimony should not…

I-Ieard before Hon. 'William H. Simpson. Bill by AY. J. Talley anil others against the court of county commissioners of Jackson county and others. From a judgment dismissing the bill, complainants appeal.

Apppeal from Coffee Chancery Court. Heard before Hon. L. D. Gardner. Bill by Eula Flowers against D. C. Hutchison and others to redeem land from a mortgage foreclosure sale. From a decree ordering redemption, respondents appeal.

Heard before Hon. Thomas IT. Smith. Bill by Charley New against J. B. Driver and another, to enjoin a trespass to land. Decree for complainant and respondents appeal. Complainant had an adequate remedy at law and the demurrers to the bill should have been sustained.

Heard before Hon. W. H. Simpson. Suit by J. L. Cliambless against Martha E. Farr and others to set aside deeds and for a sale of lands for division. From a decree for complainant, defendants appeal. The case made by the bill is that in October, 1907, one A. T. Cliambless died intestate, leaving as his heirs the parties to this suit. It is alleged that there are no debts, and no need for an administration.

Heard before Hon. W. W. Pearson. Bill by T. J. Zeigler and another, as executors of the last will and testament of Nancy Zeigler, against Julia E. Spiers and others, to remove the administration of the estate from the probate to the chancery court, and to constiue a will. From a decree overruling demurrers to the bill, respondents appeal.

Heard before Hon. W. W. Whiteside. Bill by Gilley D. Ashurst as executrix against Harry G. Ashurst, co-executor, and others, to remove the settlement and administration of an estate from the probate to the chancery court, in which respondents file a cross bill. From a decree overruling demurrers to the original and cross bills, respondents appeal.