Volume 176 — Alabama Reports

Heard before Hon. A. H. Alston. Ed Costello was convicted of murder, and be appeals. The orders for the special venire for the summoning and services of the same on defendant were not properly made, and constitute reversible error. — State v. Mills, in MSS; 69 Ala. 159; 71 Ala. 17; Allen v. State, 146 Ala. 65; Sec. 7840, Code 1907.

• Appeal from Hale Law and Equity Court. Heard before Hon. Charles E. Waller. Frank Olden was convicted of murder in the first degree, sentenced to the penitentiary for life, and appeals. The facts and exceptions to evidence sufficiently appear in the opinion of the court.

Heard before Hon. B. M. Miller. John Sims was convicted of murder and he appeals. The indictment was subject to the demurrer interposed.- — Hornsby v. State, 94 Ala. 55. — The motion to quash the venire should have been granted. — Sec. 32, Acts 1909, p. 305; Davis v. State, 52 South.; Jackson v. State, 55 South. 118; Baily v. State, 55 South. 601; Harris v. State, 55 South. 609; Seay v. State, 55 South. 611.

Heard before Hon. B. M. Miller. Llewellen Underwood was convicted of murder and he appeals. The motion to quash should have been granted, as it appears without dispute that the venire, etc., was not served upon defendant himself. — 'Welch v. State, 56 South. 11; Sec. 82, Acts 1909, 305.

Equity Court. Heard before Hon. Edward J. Gilder. John Jones was convicted of murder, and he appeals. The court erred in giving the charge requested by the state. Successfully means in a successful manner, prosperously, favorably, and a defendant is required to do no more for his acquittal than to' raise a reasonable doubt of his guilt. — Hinson v. State, 112 Ala. 41; Ragsdale v. State, 134 Ala. 24.

Heard before Hon. B. M. Miller. Phillip Travis ivas convicted of murder in the first degree, and he appeals. There is no bill of exceptions in the record, and the record shows all the preliminary steps requisite to a legal trial for murder in the first degree, verdict of the jury, and judgment thereon, together with a judgment overruling a motion in arrest of judgment, but the motion itself does not appear in the record.

Question certified from Court of Appeals. Jacob Isaiah was convicted of carrying a concealed pistol, and appealed to the Court of Appeals, which certified the constitutional question involved to this court. The following opinion is rendered in response to an application for rehearing in the Supreme Court upon the ruling of said court on the question so submitted. For the decision of the Court of Appeals, see 3 Ala. App. 138, 58 South. 57.

Heard before Hon. A. H. Benners. On bill filed by the Attorney General under the state banking laws, the Guarantee Bank & Trust Company was declared insolvent and T. D. Smith was appointed as receiver thereof. John B. Oates files petition against the receiver to set off certain claims due by the bank against the debt due from him to the bank. From a decree sustaining demurrer to the petition he appeals.

I-Iearcl before Hon. Thomas H. Smith. Bill by A. P. Brewer Lumber Company and another, against L. P. Elam and another, to declare a deed fraudulent and void as to creditors, and to set the same aside. From a decree granting relief, respondents appeal.

Heard before Hon. W. W. Whiteside. Bill by James A.. Sims and others against Mary Palmer and others for partition of certain real estate alleged to be owned in common. From a decree granting-partition, Mary Palmer appeals. Counsel discuss the evidence and insist that under it Mary Palmer had shown disseisin and should have been granted a decree confirming her adverse possession under parol gift from the intestate, but they cite no authority.

Heard before Hon. Thomas H. Smith. Bill by Judie Burkhalter and others against A. E. Bell to declare certain deeds Aroid and to cancel same as cloud upon title. From a decree overruling demurrers to the bill, defendant appeals. Paragraph 1 states the name, age, and residence of complainants and respondents.

Heard before Hon. L. D. Gardner. Bill by D. Rothschild & Company, and others against Mamie C. Whaley as executrix of the estate of W. H. Whaley, deceased, to compel payment of their debts against the estate, and for a discovery. From a decree overruling demurrers to the bill, respondent appeals.

Heard before Hon. William H. Thomas. Bill by James Palmore against Frank Vaughan and others to quiet title to land. From a decree overruling demurrers to the bill respondents appeals.

Heard before Hon. A. H. Benners. Bill by H. M. Hartón against E. F. Enslen and others, to vacate and set aside an execution sale of land, to vacate and annul a judgment in ejectment, and to cancel certain deeds as a cloud upon complainant’s title. From a deed for respondents complainant appeals. Under the facts in this case appellant is not guilty of laches in filing this suit. — Bimmons v. Sharp, 138 Ala. 451; First Nat.

Heard before Hon. A. D. Sayre. Bill by Hattie Burnett and others, against S. Zadek and others, for an accounting and redemption, or the cancellation of certain mortgages. Decree for complainants and respondents appeal. Counsel discuss the errors assigned as to exceptions noted to the finding of the Register on the facts, but ivithout citation of authority.

Heard before Hon. Armstead Brown. Bill by Samuel H. Westeott and others to remove an administration of an estate into the chancery court and to construe a will. From a decree construing the will, B. P. Crum, the guardian of the minor, appeals. The will is as follows: “Item One. After just debts are paid, my estate shall be divided as directed by the statutes of Alabama in case of intestacy subject to the provisions of items two hereof. “Item Two.

Heard before Hon. L. D. Gardner. Bill by Kinnon Barry and others against James M. Stephens and others to quiet title of land and remove cloud from title. Decree for respondents, and complainants appeal.

Heard before Hon. A. H. Benners. Bill by-H. M. Hartón against the Empire Realty Company and others to enforce a resulting or constructive trust in favor of the Ensley Realty Company, and to declare certain sales of stock therein fraudulent and void. From a decree overruling demurrers to the bill, respondents appeal.

Heard before Hon. W. W. Whiteside. Bill by W. D. Dillard against IT. F. Hays and others to quiet title to land. From a decree for complainant, respondents appeal. After setting out a description of the land, and alleging that orator and those under whom he holds said land have been in open, adverse, exclusive, and notorious possession of said land for more than 10 years, claiming title to same, it is alleged that IT.

Heard before Hon. W. IT. Simpson. Bill by George IT. Caperton and others against W. K. Graham and others to establish a ferry franchise, and to enjoin respondent from refusing free ferryage to complain ants. Decree for complainant and respondents appeals. The respondents sustain their pleas of prescription and the statute of limitation. — Milton v. Eeyden, 32 Ala. 30.

Heard before Hon. W. W. Whiteside.' Bill by James M. Parker against R. M. Cooper and others. Prom a decree for complainant, defendants appeal. The consideration clause of the mortgage is as follows: “And we, or either of ns, agree to pay to the said James M. Parker, for any and all advances, in addition to' the above amount of money, the said James M. Parker may make to ns during the year 1907.

<p> Bill tú Enforce Material-man’s Lien. </p> <p>1. Contracts; Building Contracts; Modification. — Where the contract fixes a time for the completion of the work and makes time of the essence of the contract, a party who sets up a subsequent change in the contract extending the time for the completion of the work has the burden of proof as to the modification.</p> <p>2. Same; Performance; Waiver. — Where the contract fixes the time for the erection of a building and makes time of the essence of the contract, the owner does not waive non-performance within the specified time by accepting what was done by the surety of the contractor in furnishing financial aid to the contractor to enable him to complete the building, though he may not be able to do so within the time specified, and does not waive the non-performance by allowing the work to go on to completion after the expiration of (lie time, the owner not being at fault for the delay. A waiver must operate by way of an estoppel, or be supported by a valuable consideration to lie binding.</p> <p>3. Same; Modification; Proof Required. — The proof of a parol altera!ion of a written contract must be clear and satisfactory when the change is denied.</p> <p>4. Estoppel; Conduct.- — To operate as a basis for an estoppel conduct of the other party must have been intended for the party relying on an estoppel to act upon, and he must have been induced' to act upon it.</p> <p>5. Principal and Surety; Contract; Liability of Surety. — A surety on a building contractor’s bond is bound equally with the contractor for the performance of the contract, and is equally responsible in damages for any failure in performance, and the surety merely does his duty to the owner, and does* not furnish any new consideration for the original contract by coming to the relief of the contractor who is unable to carry out the contract because of financial embarrassment.</p> <p>G. Same; Contract of. — A surety on a building contract is chargeable with knowledge of the terms of the contract limiting the time for the completion of the work, and making time of the essence, and no duty is on the owner to call the surety’s attention to the time limit, and to notify the surety that he will insist on it.</p> <p>7. Set off and Counter Claim; Building Contract; Damages.— Where the time fixed for completion of a building is made of the essence of the building contract, the owner may recoup the damages sustained by a delay in the completion of the work, when sued upon the contract.</p> <p>8. Damages; Breach of Contract; Measure. — The measure of damages resulting from a delay in the completion of the building erected under a contract fixing a time for its completion, and making time of the essence, is the value of the use of the building for the time the owner was deprived thereof by the delay of the contractor.</p>

<p>Appeal from Butler Chancery Court.</p> <p>Heard before Hon. L. D. Gardner.</p> <p>Bill by May Lewis against J. J. McBride and others, to redeem land from a sale under the powers in the mortgage. Decree for respondents and complainants ■appeal.</p> <p>Proper procedure to redeem was had under section 5784, Code 1907. — Lehman Durr & Co. v. Collins, 69 Ala. 131. Brown stated that he would not furnish the items of' lawful charges, and it is therefore shown that it would have been a useless requirement to make any further demand. — Francis v. White, 142 Ala. 601; 28 A. & E. Enc. of Law, p. 5. It follows, therefore, that the court was in error in sustaining demurrers to the bill.</p> <p>Counsel insist that under the terms of the statute, complainant is not in a position to redeem having purchased the equity of redemption when that equity had been destroyed by a sale under the power contained in the mortgage, and that being without right to maintain the bill, there was no error in the -action of the trial court in the judgment rendered.</p>

Heard before Hon. L. D. Gardner. Bill by L. R. Rouse against the Central of Georgia Railway Company to quiet title to a strip of land. From a decree for complainant respondent appeals. The evidence fails to show that the complainant was in the peaceable possession of the lot in such a sense as would enable him to maintain this bill.- — Ladd v. Powell, 144 Ala. 409; Johnson v. Johnson, 147 Ala. 543; Crabtree v. Ala. Land Co., 155 Ala. 513.

- Heard before Hon. W. W. Whiteside. ' Bill by A. Lee Scarbrough in his representative capacity, for construction of a will, and to remove the estate from the probate to the chancery court. From a decree construing the will Mamie Scarbrough appeals.

<p> Bill to Partition Land. </p> <p>1. Gifts; Inter Vivos; Parol Gift of Land; Emdence. — A party claiming an interest in land by gift has the burden of establishing the gift, where it rests in parol.</p> <p>2. Adverse Possession; Burden of Proof. — One claiming land by adverse possession has the burden of proving that he has held the land adversely for the statutory period necessary to perfect his title.</p> <p>3. Partition; Evidence. — Evidence considered and held sufficient to justify a decree of partition.</p> <p>4. Equity; Decree; Conformity to- Pleading. — A chancery court cannot grant relief as to a matter or claim which is not made an issue by the bill, answer or plea.</p>

<p> Bill to Annul Conveyance and to Remove Administrar tion to Chancery Court. </p> <p>1. Equity; Pleading; Multifariousness; Joint Interest. — The bill considered and it. is held that all the parties were interested in the .administration, and that the quantum of their respective interests was affected by the conveyance, and that the administrator was affected in- both his personal rights and representative capacity, and that the bill was not multifarious.</p> <p>2. Equity; Prayer; Demurrer. — Where a bill is sufficient in other respects and contains a proper prayer, it is not demurrable because of a prayer for further but unwarranted relief.</p> <p>3. Fraud; Misrepresentation; Reliance. — Where statements are made of facts concerning matters which may be assumed to be within the knowledge of the party making them, the party to whom they are made has a right to rely upon them without making inquiry for himself in the absence of knowledge on his part which should arouse suspicion.</p> <p>. 4. Cancellation of Instrument; Pleading; Offer to Restore Consideration. — A bill for the cancellation of a deed on account of fraud offering to refund the consideration to the grantees, or to such of .them as the court may decree entitled thereto, or to allow the same to be credited on plaintiff’s distributive share of the estate as widow, without paying or tendering the .money into court, or offering to pay interest, is a sufficient offer of restoration, as the interest may be considered as a mere incident to the principal sum, and will be deemed covered by the offer to refund.</p> <p>5. Pleading; Matters of Evidence. — -Where the action was by a widow against her children to set aside a deed executed by her to them which she claimed was induced by the fraudulent representation of defendants as to the value of the estate, allegations in the ' bill that decedent was interested in several partnerships at the time of his death, were proper as serving to inform defendant in part of the nature of the evidence to be met, although relating to matters of evidence, and where the bill was not unduly encumbered by such averment, it was not thereby rendered subject to demurrer.</p> <p>6. Costs; Trust Property; Statutory Provision. — A widow claiming an interest in an estate of her deceased husband' filing a bill to set aside a conveyance by her to defendants and her other children on the ground that it had been procured by a fraudulent misrepresentation, said bill being filed after a son had been appointed administrator, and had filed his inventory and an appraisement of the estate, was not entitled to "attorney’s fees out of the trust funds, as section 3010, Code 1907, was not intended to authorize cestuis que trustent, or parties claiming to be such, to employ at tbe expense of the trust attorneys for the litigation among themselves of adversary claims as to their respective interest therein; hence, the court was not authorized to award such a fee to complainant’s attorney out of the trust fund.</p>

Heard before Hon. W. H. Simpson. Bill by W. E. Snodgrass against Eliza Snodgrass individually, and as administrator, for the removal of an estate from the probate to the chancery court, and for the allotment of -dower. From the decree overruling demurrers to the bill, the administratrix appeals. In the instant case it is not a concurrent duty of the administratrix to assign dower. — Shelton v. Gwrroll, 16 Ala. 148.

Heard before Hon. A. H. Benners. Bill by Sig. & Sol. Freiberg, partners, against Barbara and Victor Wertheimer, to set aside a conveyance as a fraud on creditors. From a decree granting relief, respondents appeal.

<p> Greditor’s Bill for Discovery. </p> <p>1. Creditor’s Bill; Discovery; Conditon Precedent. — A creditor whose debt was evidenced by a foreign judgment need not bring suit upon or obtain judgment thereon in this state before being authorized to bring a creditor’s bill for discovery, under section 3740, et seq., Code 1907.</p> <p>2. Same Grounds; Fraud. — It is not necessary that creditor’s bill for diseoverey of a debtor’s assets should show any fraudulent conveyance or disposition, other than the concealment of assets, which, if discovered, would be liable to the satisfaction of complainant’s debt.</p> <p>3. Same; Property in Other Jurisdictions. — As sections 3740, et seq., Code 1907, expressly provides for tlie discovery, of property wherever located, a creditor’s bill for the discovery of concealed assets may be maintained, although the property sought to be discovered is outside of the state of Alabama.</p> <p>4. Same; Bill; Averments. — A creditor’s bill for discovery which alleges as a fact the existence of property, that it is concealed from the creditors and that it can be discovered and subjected to the debts by the aid of the chanery court alone, sufficiently avers the necessity for discovery, notwithstanding it does not state the nature and location of the property.</p> <p>5. Same. — A creditor’s bill for discovery which alleges that a debtor has no visible means or property subject to legal process, and that a discovery of property alleged to be owned by the debtor is necessary to enable complainant to reach and subject it to the satisfaction of his debts, sufficiently avers that complainant has no other means of ascertaining the facts which are sought to be discovered, and that those facts are peculiarly and solely within the knowledge of the respondents.</p> <p>6. Constitutional Law; Right to Jury Trial; Abridgement. — Sections 3740, et seq., Code 1907, authorizing a' bill for the discovery of assets is not unconstitutional as impairing the right to trial by jury.</p> <p>7. JBquiiy; Bill; Demurrer; Discovery. — -Where a court of equity acquired jurisdiction of a controversy containing some element of purely equitable cognizance, it does not confine its remedy to the adjustment of the mere equity, but retains the cause, and administers complete justice between the parties notwithstanding in doing so it may decide questions which are otherwise of purely legal cognizance; hence, a bill in which a discovery of assets is the main equity, is not demurrable because some additional relief was sought that may be obtained in conjunction therewith.</p>

Heard before Hon. W. W. Whiteside. Bills by J. M. Collins and another against the Louisville & Nashville Railroad Company, and another for mandatory injunction seeking to provide adequate waterways, and for damages. Prom a judgment dismissing the bill -plaintiffs appeal.

Heard before Hon. John H. Disque. William Chandler as a junior mortgagee filed his bill against T. S. Kyle and others, senior mortgagee to enjoin foreclosure, and to marshal securities. The court sustained a demurrer to the bill and complainant appeals. If one joint mortgagor in order to protect his interest pays a joint debt he is subrogated to the interest of the joint mortgagor until he'is paid. — Newt old v; Smart, 67 Ala. 326; 1 Jones on Mortgages, 878.

Heard before Hon. H. H. McClelland, Special Judge Bill by Mary S. Nortkup against tbe Blacksher Company and others to sell lands owned jointly. . Decree overruling demurrer to the hill and certain of the respondents appeal. As amended, the hill alleges: That Dr. J. W. Shomo died leaving certain heirs named.

Heard before Hon. A. H. Bennees. Bill by Adele Chamboredon as guardian of Clio May Fayet, against Tony Fayet and others, to remove an administration from the probate to the chancery' court, and have a homestead and certain articles of personal property, together with $1,000.00 in money set aside to such minor as exempt. From a decree dismissing the bill complainant appeals.

Heard before Hon. Thomas H. Smith. Bill by John F. Hay les against Hermenia Chrichton, ns administratrix for an accounting against her intestate. From a decree overruling demurrers to the bill, respondent appeals.

Heard before Hon. L. D. Gardner. Bill by the Geo. W. Muller Manufacturing Company against tlie First National Bank of Dotban to enforce a lien for supplies and labor in a building. Decree for respondent, and complainant appeals. The bill alleges that the complainant is a corporation, organized under the laws of the state of.

Heard before Hon. William H. Thomas. Bill by Camilla G. Waddell, originally filed against her children for partition, and afterwards amended as noted in the opinion so as to make W. J. Osborne, a party respondent. From a decree overruling Osborne’s demurrers, he appeals. The bill as finally amended was subject to a general demurrer.

Heard, before Hon. W. H. Simpson. Bill by Mary A. Loring against S. S. Grummon and others, as heirs of Charles A. Loring to annul certain deeds, and to have her title to the land therein conveyed recognized and confirmed. From a decree for respondents, complainant appeals. Fraud vitiates everything it touches, and when it enters into a contract vitiates same and furnishes ground for the interposition of equity to cancel it. — Frierson v. Andrews, 134 Ala. 626.

Heard before Hon. W. H. Simpson. ...Bill by Mary A. Loring against Sidnia S. Grummon , and, others, to reform a deed. From a decree dismissing the, bill complainant appeals.

Heard before Hon. A. H. Benners. Bill by L. J. Cole against Savilla F. Hafer to rescind a contract for fraud, and to compel a reconveyance of land. Prom a decree overruling demurrer to the bill respondent appeals. In a bill for rescission, it must be shown either that defendant is insolvent, or that some fraud or misrepresentation was practiced by respondent in making sale. — Yarbrough v. Thornton, 147 Ala. 222; 8 Mayf. 218.

Heard before Hon. Cecil Browne. Bill by Fannie C. Stringer against E. C. String’er and others to quiet title. From a judgment for complainant, W. B. Castleberry, as guardian for one of defendants, appeals.

Heard before Hon. W. H. Simpson. - Will contest by W. R. Alexander against F. D. Gibson and others. From a decree sustaining a demurrer to the bill, complainant appeals.

Heard before Hon. E. J. Garrison. Bill by Willingliam & Bell and the members composing the firm against J. S. Whitley, seeking- to reform a contract and to recover damages for its breach. From a decree overruling demurrers to the bill respondents appeal. The contract is shown to have been so carelessly drawn that the complainants are not entitled to recover. — 9 L. R. A. (N. S.) 1211.

Heard before Hon. A. H. Benners. Bill by H. M. Hartón, against W. M. Little and others, to declare and enforce a trust against certain lands. From a decree sustaining demurrers to the bill, complainant appeals. The bill Aims not demurrable for joinder of parties respondent. — La/i'kin v. Meed, 77 Ala. 485; Eoicard v. Kennedy, 39 Am. Dec. 307.

■ Heard before Hon. Edward J. Gilder. Bill by W. C. Lewis and another against R. S. Alston to declare a deed void, and to cancel same. From a decree sustaining demurrer to the amended bill, complainants appeal.

Heard before Hon. W. H. Simps'on. Bill by John H. Snodgrass as administrator of the estate of Ann O. Snodgrass, against Eliza A. Snodgrass as administratrix of the estate of Nathaniel Snodgrass, for an accounting of a trusteeship or agency. , From a decree overruling demurrers to the bill, respondent appeals.

Heard before Hon. W. H. Simpson. Bill by John D. Snodgrass, as guardian of J. T. Snodgrass, an incompetent, against Eliza A. Snodgrass, administratrix of Nathaniel H. Snodgrass, deceased. From a. decree overruling a demurrer to- the bill, defendant appeals.

. Heard before Hon. W. H. Simpson. Bill by Charles M. Evans against J. D. Wilhite, to set aside a judgment obtained in an action at law, and to enjoin its enforcement. Prom a decree dismissing the bill complainant appeals. There are but two questions involved in this case. 1st, does the evidence present a case which shows a meritorious defense to the •action at law?

Heard before Hon. W. H. Simpson. Bill by Ether M: Decker against George M. Decker for divorce, alimony and the custody of the child. From a decree for complainant, respondent appeáls. The only matter presented is the decree awarding permanent custody and control of Paul Decker to its mother, and it is insisted that the court erred in making this award permanent. — Cornelius v. Cornelius, 31 Ala. 479; Mc-Gough v. McGough, 136 Ala. 170.

Heard before Hon. A. H. Benners. Bill by the city of Birmingham against the Birmingham Water Works Company to require it to perform a public duty in furnishing an adequate water supply to a portion of the city which had become populous through natural growth. Decree for complainants and respondent appeals.

<p> Divorce. </p> <p>Divorce; Grounds; Pleading and Proof. — A divorce cannot be decreed or granted upon any other ground than those alleged in the bill.</p>

Appeal.from Marengo Law and Equity Court. Heard before Hon. Edward J. G-ilder. Bill Benjamin F. Gilder, Superintendent of Education, against Samuel W. Compton and Ms bondsmen, for an accounting. From a decree overruling demurrers to tbe bill, respondents appeal. The bill is filed in tbe official capacity of tbe complainant, and alleges that be was successor in office of the respondent as county superintendent of education in Marengo county.

Heard before Hon. Safeold Bebney. Bill by Samuel E. McCreary and others against Mollie Billing and others, for a sale of land and reinvestment of funds, and to fix the reversionary interest of the minors therein. From a decree sustaining demurrers to the hill complainants appeal.

Heard before Hon. Edward J. Gilder. Bili by the Southern Railway Company against T. S. Adams, as Tax Collector for Marengo county, and others, to enjoin the collection of a special road tax. From a decree for complainants respondent appeals.

Heard before Hon. W. W. Whiteside. Bill by W. H. Weatherly, as trustee in bankruptcy of D. M. Sparks, a bankrupt, against H. O. Sparks, to reach and sell land for the satisfaction of the debts of the bankrupt. From a decree for complainant, defendant appeals.

Heard before Hon. A. H. Benners. Bill by Irene W. Lamkin against W. S. Lovell as trustee, to cancel note and mortgage because given to secure debt of the husband. From a decree for respondent complainant appeals. Under the facts in this case the note and mortgage were void, as in any event, they were given as collateral security for the debt of the husband, and rendered the wife at least indirectly responsible for the husband’s debt. — Sec. 4497, Code 1907; Evans v..

Heard before Hon. H. A. Sharpe. Bill by John IT. Minge against P. B. Green to require specific performance of a contract to convey land. From a decree sustaining demurrers to the bill, complainant appeals.

Heard before Hon. Gaston Gunter. Bill by Ike Levystein against Alex Cassimus to abate a nuisance. Decree for complainant and respondent appeals. The bill shows no special injury sustained by appellee, so as to entitle him to maintain the present bill. — 29 Cyc. 1213, 3220. The mere fact that an act is prohibited by law does not render the doing of such an act a nuisance.— 29 Cyc.. 1163, 1165. As to the injunctive feature see McHan v. McMurray, 55 South. 792 and cases cited.

: Appeal from Marengo Law and Equity Court. Heard before Hon. Edward J. Gilder. Bill by Etliel Steinhart and others, against B. P. Gregory and others, for an accounting, and to impress a trust upon certain property, and for general relief. Prom a decree sustaining demurrers to the bill complainant appeals. The statute governing leases by guardian of the lands of the ward will be found in sections 4379, 4380, 4381.

Heard before Hon. W. H. Simpson. Petition by George W. Long, directed to John R. Morris, for a writ of assistance to restore him to the possession of certain lands. From a decree denying the petition, petitioner appeals.

Heard before Hon. John H. Disque. Bill by T. S. Kyle against J. M. Elliott and. others, to declare a deed a general assignment for the benefit of the creditors. From a decree overruling demurrers to the bill respondent appeals. The two aspects of the bill are wholly inconsistent, and at war with each other, cannot stand together. — 87 Ala. 404. The bill is insufficient as charging fraud. — 58 Ala. 667; 3 Mayf. 826.

Heard before Hon. A. H. Benners. Bill by Richard Randolph against Laura J. Norton, to enjoin the maintenance of a private nuisance. From a decree overruling demurrers to the bill respondent appeals. The case made by the bill is not one of a spite fence, and must depend for its equity upon the unsightliness of the structure and the injury it does complainant by depriving him of light and air.

Appear from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Bill by Maybelle Wharton against Kate Rittenberry and her sureties, to set aside and annul a decree of final settlement of the guardianship and to reopen and settle guardianship accounts. From a decree overruling demurrers to the amended bill, respondents appeal.

Heard before Hon. L. I). Gardner. Bill by Henry Jones against W. H. Gainer and others for specific performance. Decree for complainant, and respondents appeal. The decree of October 21, 1909, referred to in the opinion, is as follows: “Upon consideration, the court is of the opinion that complainant is entitled to the relief he seeks, and that a reference is necessary to be held. It is therefore ordered, adjudged, and decreed that complainant is entitled to relief.

Heard before Hon. Edward J. Gilder. Bill by James E. Alston against J. C. Dunn and another. From a decree sustaining demurrers to the bill, and dismissing it, complainant appeals.

Heard before Hon. William H. Thomas. Bill by tbe Alabama Machinery & Supply Company against A. G. Forbes to enforce a mechanic’s or material-man’s lien. Decree for complainant, and respondent appeals. The bill was filed against Forbes as trustee in a deed of trust to secure bonds in the sum of $10,000, issued by the State Publishing Company.

Heard before Hon. C. K. Torrey, Special Judge. . Bill by the members composing the firm of Barnett & Jackson against Carrie M. McMillan for an injunction to restrain a mortgage sale, and for cancellation of a moidgage. From a decree for respondents complainants appeal.

Heard before Hon. F. W. Hare, Special Judge. Bill by M. E. Davison against T. E. Dennis to reform a mortgage, and to foreclose. From a decree for respondents complainant appeals. The mortgage referred to is as follows: “That the note of even date with this to M. E. Davison for the sum of $200.00, and payable on the 1st day of December next, was 'given for money obtained by us from her bona fide.

Heard before Hon. W. H. Simpson. Bill by Lillian Armstrong and others to cancel the issue of stock, and have same reissued to complainant, the stock having been issued in the name of C. T. Clifford. From a decree for complainants respondent appeals. Under the facts Clifford is a tenant in common with complainant of the stock, and a trust cannot be declared in favor of complainant.

Heard before Hon. W. W. Whiteside. Bill by B. D. W. Harris as administrator against A. J. Brummitt, as executor, revived in the name of R. L. Johnson, administrator cum testamento annexo for specific performance. From a decree for respondent on the cross bill, complainant, appeals.

Heard before Hon. W. W. Whiteside. Bill by Evie Johnson for a divorce and annulment of marriage filed against H. J. Johnson, the husband. From a decree for respondent complainant appeals. Under the facts in this case such a fraud was perpetrated by the husband as entitled the wife to an annulment of the marriage contract. — 2 Nelson on Divorce, 535. Fraud vitiates every transaction .which it enters.— Eslava v. Eslava, 50 Ala. 32; Comer v. Heicllebach, 109 Ala. 223.

Equity Court. Heard before Hon. W. F. Dickinson, Special Judge. Petition by T. P. Hudmon against T. J. Tillery, as administrator, and others. From a judgment overruling demurrers to the petition, certain defendants appeal.

Heard before Hon. A. H. Benners. Bill by E. W. Rucker against the Tennessee Coal, Iron & Railroad Company to quiet title to land. Decree for respondent and complainant appeals. The question is one of title in this case, as neither party had anything other than a mere constructive possession which is drawn to it by the title. — O’Neal v. Prestwood, 153 Ala. 446. Appellant acquired title under deed from Henley.

Appear from St. Clair Chancery Court. Heard before Hon. W. W. Whiteside. Bill by T. Johnse Kilgroe against the Farmers’ Union Warehouse & Storage Company and others to collect and marshal assets for the benefit of creditors. From a decree appointing a receiver and granting an injunction, George E. Warren and others, execution creditors, appeal.

Heard before Hon. Thomas H. Smith. Bill by Henrietta White against Fannie Hill individually, and as administratrix of the estate of William White, deceased, to revoke the issue of letters to administratrix, and to remove the estate from the probate to the chancery court. Decree for respondent and complainant appeals.

Appeal, from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Bill by W. B. Yeal against George H. Whittemore and another to set aside certain conveyances as fraud upon creditors. Prom a decree sustaining demurrers to the bill complainant appeals. The court was in error in sustaining demurrers to the bill. — Silvey & Co. v. Vernon, et al., 153 Ala. 570. The allegations were not sufficient on which to base the relief prayed. • — 1 Dan. Oh.

Heard before Hon. Thomas W. Welt. Bill by the American Telephone & Telegraph Company against the Town of New Decatur. From a decree overruling demurrers to the bill, defendant appeals.

. Heard before Hon. A. H. Benners. Bill by M. Spragner and others against the King-Lumber Company and others to remove cloud from title. Decree for complainants, and respondent King appeals.

Heard before Hon. W. H. Simpson. Bill by M. E. Gabard and others, against L. B. Morgan, and others, to declare and adjudicate the binding-effect of the union between the Presbyterian Church of the United States, and the Cumberland Presbyterian Church, and to fix and declare the rights of these complainants in and to the use of the church property. From a decree for complainants, respondents appeal.

Heard before Hon. L. L>. Gardner. Bill by Mary E. Brooks against Greil Brothers Company and others, to reform a lease and rent note, or to cancel the same as a cloud on title, and for an injunction, and accounting. From a decree overruling demurrers to the bill, respondents appeal.

Appeal fr.om Jefferson Chancery Court. Heard before Hon. A. H. Benners. Suit by Mrs. M. E. P. Bunch against William Bibby and another to enjoin mining operations.

Heard before 1-Ion. A. IT. Benners; Bill by Caroline Braun against L. C. Pettyjohn and others, to foreclose a mortgage. Decree for respondents and complainant appeals.

Clair Chancery Court. Heard before Hon. W. W. Whiteside. Bill by T. J. Smith against E. W. Webb to restrain respondent from engaging in business contrary to his contract, and for damages for non-delivery of chattels contracted to be delivered. Decree for respondent and complainant appeals.

Heard before Hon. Thomas W. Coleman, Jr. Petition by the city of Anniston for mandamus di rected to the Commissioners Court of Calhoun County, requiring the said court to pay over to the city its pro rata of the road tax for certain years mentioned in the petition. From a judgment granting the mandamus, respondents appeal.

Heard before Hon. C. P. Almon, Petition by the town of Russellville for mandamus against the court of county revenue of Franklin county, and the members thereof to require them to pay over to the town certain portions of a special levy made for roads and bridges. From a judgment granting the prayer of petitioners respondents appeal.

' Appeal from Montgomery Circuit Court. Heard before Hon. W. W. Pearson. Petition by B. W. Armstrong and others, for mandamus to compel the governor to order an election in Geneva county on the question of the removal of the county seat. There was judgment of dismissal rendered upon an order sustaining demurrers to the petition, and petitioner appeals. The authority for this proceeding is found in the provisions of section 175, Code 1907.

Heard before Hon. C. C. Nesmith. Information by the State, on the relation of Will Hill and others, against I. L. Dismukes and others, in the nature of quo warranto, to oust respondents as trustees of a certain church. From a decree overruling demurrers to the petition, respondents appeal.

Heard before Hon. John H. Disque. Action hv the State on the relation of the Attorney General to enjoin the Alabama Power Company from constructing and maintaining dams across the Coosa river at the points described in the bill. From a judgment denying the petition relator appeals. Without a strict compliance with section 6148, et seq., Code 1907, there is no authority for building and maintaining a dam upon any navigable stream in this state.

Certiorari in Supreme Court. Petition by tbe Louisville & Nashville Railroad Company to review by certiorari the decision of the Court of Appeals of Alabama in the case of J. J. Williams against the Louisville & Nashville Railroad Company.