Volume 177 — Alabama Reports

Law and Equity Court. Heard before Hon. Lum Duke. Hubbard Perry was convicted of murder in the first degree, sentenced to be hanged, and he appeals. Upon the trial, while the defendant was on the stand as a witness for himself, he was shown a letter by the solicitor, and then asked if he had ‘written a letter and given it to Mr. Betts, the deputy sheriff, at the time he was arrested.

Heard before Hon. H. B. Foster. Frank Richardson was convicted of murder and he appeals. The court was in error in admitting evidence that some cartridges, an empty shell and a rifle were found near the scene of the crime, and also in admitting these articles in evidence, as there was nothing connecting these articles even prima facie with the crime in issue. — Mitchell v. State, 94 Ala. 68; Herman v. State, 22 South. 873; Fuller v. State, 147 Ala. 35; Underhill Orim.

Heard before Hon. M. Frank Cahalan. Ed Jackson was convicted of murder in the first degree, and appeals.

Heard before Hon. T. L. Sowell. Frank Harris and Will Jones were convicted of murder, and'they appeal. The facts sufficiently appear from the opinion.

Heard before Hon. O. P. Almost. Will Watts was convicted of murder in the first degree, and lie appeals.

. Heard before Hon. Thomas W. Coleman, Jr. Jim Williams was convicted of arson and appealed to tbe Court of Appeals,, who certified the question as to variance between, the indictment and the proof to this court. For opinion in the Court of Appeals, see Williams v. State, 4 Ala. App. 92; 58 South. 925.

Heard before Hon. W. C. McMillan, Special Judge. Petition of P. L. Chancellor, as administrator, for final settlement of the estate of his intestate. Prom a decree for petitioner, the contestant, I. S. Chancellor, one of the heirs of intestate, appeals.

Heard before Hon. Saffold Berney. Petition by. J. Benedict for certiorari to quash the order of the Board of Revenue and Road Commissioners of Mobile County, establishing a stock law district. Prom a judgment denying the relief prayed, petitioners appeal.

Heard before Hon. A. C. Edmondson. Application by Leonard Griffin for tbe probate of tbe will of Martba A. Motes, deceased, with an attempted contest by Jack O. Milligan. From ajudgment refusing probate, proponent appeals. Milligan was not a proper party to tbe contest. — Lockhart v. Stevenson, 120 Ala. 641; Rainey v. Ridgeway, 148 Ala. 524.

Heard before Hon. M. Sollie. .'Petition by Thomas Holland and others for certiorari to review and quash a judgment or order of the Commissioners’ Court of Henry County establishing a stock law district. Prom a judgment quashing the order, respondents appeal. The amended returns to the writ showed all the jurisdictional facts, and the court erred in quashing the judgment of the Commissioners’ Court. — Lowndes County v. Hearn, 59 Ala. 373; Cray v. So.

Heard before Hon. D. W. Speake. Ejectment by S. Roman as trustee against H. C. Lentz and others. Judgment for defendant and plaintiff appeals.

Heard before Hon. William H. Thomas. Ejectment by Besie W. Walker against Elizabeth A. Wyman. Judgment for plaintiff and defendant appeals.

Heard before Hon. B. M. Miller. Ejectment by Lizzie BroAvn against G. F. Watters and others. Judgment for plaintiff, and defendants appeal. There Airas a division by metes and bounds of a tract of land purchased jointly by De Yampert, McCurdy, and Tillman in the year 1891.

Heard before Hon. W. W. Pearson. Ejectment by Albert F. Wilson against T. J. Carling, as trustee. From a judgment for plaintiff, defendant appeals.

Heard before Hon. W. W. Pearson. Ejectment by L. Sternfeld against Charles P. Soulis and another. There was default judgment for the lands sued for, and a sum awarded as detention damages. The defendant appeals on the record. One holding by tax title can recover mesne profits or damages only from the time the title is cast on the plaintiff. —Brewster v. Buckholst, 3 Ala. 20.

Heard before Hon. A. H. Alston. Ejectment by W. J. Medley and others against Nelson Shipes and others. Judgment for defendants and plaintiffs appeal. The decree of the court discharging the administrator was .final and concluded the probate court’s jurisdiction.

Heard before Hon. E. J. Garrison. Action by Mrs. W. P. Conway, as guardian of Docie Carpenter, against T. E. Clark and others in ejectment and assumpsit. Prom a judgment for defendants, plaintiff appeals. It appears that plaintiff offered in evidence a mortgage executed by the defendant on October 15, 1907, to secure two notes aggregating $188.12.

Heard, before Hon. J. J. Curtis. Ejectment by J. H. Lockbart against Robert Bonner. Judgment for plaintiff and defendant appeals. Under the 30tb Stat. U. S. 837, sec. 2, the defendant should have been permitted to prove that when the state’s selection was filed and patent issued, that these lands were not unoccupied and uninhabited.

Heard before Hon. William H. Tiiomas. ■ Ejectment by Jacques Loeb against Arthur Brown. Judgment for plaintiff and defendant appeals. The defendant properly raised objection to the amendment of the complaint. — T. cG C. R. R. Go. v. Danforth, 112 Ala. 80. The amendment was improperly allowed. — Ex parte Sullivan, 106 Ala. 80; Sec. 5367, Code 1907.

Heard before Hon. H. A. Pearce. Statutory ejectment by Minnie Elliott against B. E. Napier and others. Judgments for plaintiff, and defendants appeal. Before a deed can become effective to pass title, it must have been delivered. — 4 Enc. of Evid. 157. The court erred in permitting plaintiff to testify that she had possession of the deed from her grantor. — Napier v. Elliott, 152 Ala. 552. This was objectionable also because the witness was incompetent.

Heard before Hon. W. W. Haralson. Ejectment by James L. Jackson against W. L. Singleton and others. From a judgment for plaintiff, defendants appeal. The land sued for is described as follows: E. % of S. W. %, sec. 5, T. 8, R. 4 east, in Marshall county, Ala.

<p>Appeal from Winston Circuit Court.</p> <p>Heard before Hon. W. B. Bankhead, Special Judge.</p> <p>Ejectment by L. B. Curtis against M. P. Riddle. Judgment for defendant and plaintiff appeals.</p> <p>Tbe court erred in admitting the deed made by the Richardson L. Co. — 111 Ala. 415; 87 Ala. 569; 78 Ala. 88; 68 Ala. 229. If the Richardson Lumber Company was a corporation the deed is void and, if a partnership, the situation is still worse. — 27 Ala. 644; 29 Ala. 623; 56 Ala. 43; 60 Ala. 448; 91 Ala. 123.</p> <p>Principles of law involved in this case are elementary, and were so clearly stated by the court that it is not deemed necessary to cite authorities in support of the ruling' of the lower court.</p>

A. E. Gamble. Ejectment by Lewis B. Weekley against Edgar G. Nelson and others. Judgment for plaintiff, and defendants appeal. Defendants claim title by adverse possession, and insist that the title from the United States passed to John Weekley in August, 1805, upon the certificate of the Commissioners. — J oplin v. Ghachere, 192 U. S. 94; Lgngdeau v. Haynes, 21 Wall. 521; Morrow v. Whitney, 95 U. S. 551. The court was therefore in error in directing judgment for defendants.

Heard before Hon. W. W. Pearson. Forcible entry and unlawful detainer by Jesse W. Powell against W. U McGuire. Judgment for plaintiff and defendant appeals. The acceptance of rent after the breach was a waiver of the right to claim forfeiture for such breach. — Brooks v. Counsel discuss errors assigned, and insists that the demand was not necessary to be in writing, as it might be inferred.— Knowles v. Ogletree, 96 Ala. 555; 0JDonahue v. Holmes, 107 Ala.' 490.

Heard before Hon. Samuel B. Beowne. Forcible entry and detainer by Kerry N. Daniels against T. B. Williams and another. Judgment for defendants and plaintiffs appeal. The affidavit must state and the proof must show that defendant entered peaceably and under claim of title. — Sec. 4288, Code 1907; Mallon v. Moog, 129 Ala. 303; Fern v. Beirne, 129 Ala. 435.

<p>Original petition in the Supreme Court.</p> <p>Petition by Charlie New for writ of mandamus to compel the chancellor to allow a proposed amendment.</p> <p>The court should have allowed the amendment. — Sec. 3126, Code 1907. It was germane to the original bill. — Driver v. New, 57 South. 437. Counsel discuss the demurrers to the original bill and insists that they were improperly sustained, with citation of authority in support of his contentions, but in view of the opinion it is not deemed necessary to here set them out.</p> <p>The amendment did not strike out or add new parties to the bill, and did not meet the demurrer, and added nothing to the equity of the bill, and hence, was properly disallowed.— Sec. 3126, Code 1907. The court will not review the decree of the court sustaining demurrer on this application, as it was a matter from which an appeal will lie.</p>

Heard before Hon. Gaston Gunter. Mandamus by the Capital Brewing & Ice Company to compel the Western Bailway of Alabama to accept and transport as freight beer from the city of Montgomery to the city of Opelika, in Lee county, Ala., both of which cities were on appellant’s line of railway. From a decree granting the mandamus as prayed, respondents appeal.

Heard, before Hon. D. W. Speaks. Mandamus by R. I. Burke, Judge, against B. E. Cook, County Treasurer. From a judgment granting a peremptory writ, respondent appeals. The petition was not sufficient and the court erred in overruling demurrers thereto. — Sec. 3693, Code 1907; Tolbert v. 7/ale, 131 Ala. 144; Troup v. Moryan County, 109 Ala. 162.

Heard before Hon. W. W. Speaks. Quo warranto by the State on the relation oí the Attorney General to test the right of C. C. Scheuing to occupy the office of sheriff. From a judgment for relator, respondent appeals.

<p>Appeal from Pickens Circuit Court.</p> <p>Heard before Hon. Bernard Harwood.</p> <p>Quo warranto by the state on the relation of Mrs. Sallie D. Baker against S. H. Floyd, and others. Judgment granting the writ and respondents appeal.</p> <p>Counsel discuss the pleadings, but in view of the opinion it is not deemed necessary to set them out. In the organization of corporations, the law need not be strictly complied with, and if the incorporators are satisfied, the state cannot complain if only 20% is paid in. — Sec. 3447, 3467, Code 1907; Bolling v. Lagrange, 87 Ala. 482; Planters Go. v. Webb, 144 Ala. 666; Sparks v. Woodstock Go., 87 Ala. 294; Oioensboro W. Go. v. Bliss, 132 Ala. 253; 1 Thompson on Corporations, 221-225; 13 Am. Rep. 78; 10 Cyc. 224; 10 Cyc. 1293; Hall v. Selma Ry. Go., 6 Ala. 741; Bibb v. Hall, 96 Ala. 101. A deed without attestation may operate as an agreement to convey. — Branch v. Smith, 114 Ala. 463; Hollis v. Harris, 96 Ala. 288; Sec. 335, Code 1907, and authorities there cited. The courts do not look with favor upon proceedings brought for private gain. — So. Bldg. Go. Gase, 132 Ala. 151; L. & N. v. State ex rel. Gray, 154 Ala. 156. On these authorities, counsel insist that the court was in error in granting the writ.</p> <p>It was competent to introduce evidence in respect of the so-called deed of Sallie D. Baker to the purported corporation, as respondents introduced the deed. — West End, et al. v. State ex rel., 36 South. 423; 68 Pac. 75; 113 Mo. 33; 126 Cal. 541;' State v. Hogan, 163 Mo. 43; State v. Webb, 97 Ala. 111. The deed was void as there was no grantee in esse. — 13 Cyc. 527; 2 Cook on Corp. 1811. The issuance of fictitious stock was fraud authorizing dissolution. — Parsons v. Joseph, 8 South. 788; State v. Debenture G. é L. Go., 26 South. 601; State v. Webb, supra; Elyton L. Go. v. Bit. W. & E. Co., 92 Ala. 407. False statements in the affidavit as to the amount paid in is fraud authorizing dissolution.^— West End v. State, ew rel., supra; State v. Hogan, supra; 45 Penn. 411; 195 Mo. 15. The statute expressly authorizes the purported corporation to be joined as party defendant.</p>

Heard before Hon. W. W. Pearson. Petition by the State of Alabama on the relation of Bibb Graves and Bibb Graves for quo warranto to test tbe right of Louis V. Clark to bold the office of Brigadier General of the militia. Prom a judgment granting the petition, the respondent appeals.

Heard before Hon. C. P. Almon. Quo Warranto by the State on the relation of M. L. Allen and others, against the town of Phil Campbell, and the official board thereof. Judgment for respondent and relators appeal. A general denial is not a sufficient answer to the writ here, but it should affirmatively appear from the answer that the proceedings were in all things regular. — Sec. 1053, Code 1907; West End v. State, 138 Ala. 295.

Heard before Hon. W. W. Pearson. Quo Warranto by the state on the relation of W. B. Crumpton against Arthur H. Montgomery and others, to test their right to hold the office of Excise Commissioners of Montgomery County. Judgment for respondents and relator appeals. The petition attacks the validity of the law creating the office, and therefore denies the rightful existence of the office, and quo warranto is the remedy.— State ex rel.

Original petition in tbe Supreme Court. Petition by Leonard Griffin, as a proponent of the will, to review a decree of the probate court of Pike county denying probate of the will. The probate court is a court of limited jurisdiction, and the jurisdiction must affirmatively appear from the record. The court has no jurisdiction when sitting other than in term time as provided by section 5429. — Moore v. McGuire, 26 Ala. 461.

Heard before Hon. John H. Disque. Action by the Alabama Consolidated Coal & Iron Company to recover of defendant Herzberg as judge of probate of Etowah county, a license tax for the year 1911, paid him under compulsion, etc., for the conduct of a store or commissary.

Heard before Hon. John H. Disque. Action by R. L. Frix against M. B. Johnson for penalty for failure to satisfy a mortgage of record.' Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. O. Lane. Action by J. C. Triplett against the Sloss-Sheffield Steel & Iron Company, for damages for injury, while engaged in its employment. The original appeal was to the Court of Appeals, and under the statute made and provided in such cases, the court of Appeals certified to this court the question as' to whether count 4 of the complaint was subject to the demurrers interposed. — See 4 Ala. App. 323, 58 South. 109.

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. J. C. B. Gwin.</p> <p>Action by J. M. Reid' against the Sloss-Sheffield Steel & Iron Company. From a judgment for defendant, plaintiff appeals.</p> <p>The first count alleges that plaintiff’s hand was caught in the disk or side rods of said engine, and one of his fingers cut off, and it'is alleged that it was owing to a defect in said engine, in that the steam valves or throttle valves permitted steam to leak- into the cylinders, causing the engine to start up suddenly. Practically the same defect is alleged in the second count.</p> <p>The following were the pleas referred to in the complaint. :</p> <p>“(18) To each count of the complaint: Defendant ■says that plaintiff was aware that steam was escaping from the boilers into the cylinders of said engine, and that this would probably cause the disk and side rod on said engine to move at any moment, and with knowledge and appreciation of the danger arising therefrom he voluntarily placed his said hand on said disk or side rod, without necessity therefor, and received the said injury.</p> <p>“(19) To each'count of the complaint: That the plaintiff was himself guilty of negligence which proximately contributed to his said alleged injuries in this: That plaintiff, with knowledge that steam was escaping from the boilers into the cylinders of said engine, and in danger of causing the disk or side rods of said engine to move, and with knowledge that, should the said disk or side rod move while his hand or arm was on or dangerously near the same, injury would result to him, nevertheless negligently placed his hand or arm on or dangerously near said disk or side rod on said engine, whereby, and as a proximate consequence thereof, the said disk or side rods moved, and injured him as aforesaid.</p> <p>(20) To each count of the complaint: That plaintiff himself was guilty of negligence which proximately contributed to his said alleged injuries in this: That the defendant had equipped the said machinery with a safety device by which the steam could be cut off, so as to prevent the engine from starting, owing to the defective valve, while work was being done on said engine, and defendant avers that plaintiff knew of this safety device, and knew that by using it the steam could be cut’off, and the engine prevented from starting while he was working upon it, and defendant further avers that plaintiff knew that, if the steam was not cut off, the engine would likely or probably start while he was working-on it, and injure him, but nevertheless the plaintiff failed to cut off the steam by means of said safety device before beginning work on said engine, and received the said injuries.</p> <p>“(21) To each count of the complaint: That plaintiff was himself guilty of negligence which proximately contributed to his said injuries in this: Plaintiff, well knowing the engine on which he was at work would likely or probably start and injure Mm if the steam was not shut off, nevertheless negligently failed to shut jthe steam off said engine, and received his said injuries.</p> <p>“(22) To each count: Plaintiff was himself guilty of negligence which proximately contributed to his said injuries in this: Plaintiff well knowing that the steam valve or throttle was defective as alleged, and that the engine would likely or probably start up while he ivas at work on the same, and that, should the said engine start Avhile his arm or hand Avas on the disk or side rod on said engine, he would probably be injured, nevertheless plaintiff negligently placed his arm which was injured on the said disk or side rod, and received his injury.”</p> <p>“(25) To each count: Plaintiff himself Avas guilty of negligence Avhich proximately contributed to his injury in this: That plaintiff, at and before the time of receiving his said injury, kneAv that the throttle valve of the said engine was defective, and that, when said throttle valve was closed, steam would nevertheless pass from the boilers into the cylinders of said engine, and would cause said engine to move, and that it Avas dangerous for him to place his hand on the disk or rods of said engine, or between said disks and said rods; and plaintiff knew that there Avas another and safer Avay for him to do the Avorlc in which he was engaged at the time he Avas injured, nevertheless plaintiff negligently placed his said hand at the place Avhere the same was injured, and as a proximate consequence thereof was injured as alleged.”</p> <p>“(27) As amended (to each count of the complaint) : That plaintiff Avas himself guilty of negligence which, proximately contributed to his said injriry in this: That he negligentiy caused or allowed his said hand to be on or dangerously near the disk or side rods of said engine, or between said disk and sáid side rods, knowing that it was dangerous to cause or allow his said hand to be at said place, or in said position, and knowing that the throttle valve of said engine was defective, and that steam was passing from ;the boilers into the cylinders of said engine, and that said steam would probably cause said engine to start up when said steam reached or acquired a certain pressure in said cylinder, and that said certain pressure could be prevented by opening the cylinder cocks or valves then and there connected with said engine; nevertheless plaintiff negligently failed to open said cylinder cocks or valves before causing or allowing his hands to be at said place or in said position.”</p> <p>The following charges were given for the defendant:</p> <p>(1) “If you are reasonably satisfied, from all the evidence in the case, that plaintiff negligently failed to open the cylinder valves on the engine before placing his hand at the place or about said engine where it was injured, and that said negligent failure contributed to his injury, you must find for the defendant.”</p> <p>(2) “I charge you that, when a person enters the employment of another, he assumes all of the ordinary risks of danger to which he may be subject while pursuing the duties of his employment.”</p> <p>(3) “If, after considering all the evidence in this case, your minds are in a state of confusion as to what was the proximate cause of plaintiff’s injury, you must find for the defendant.”</p> <p>(4) Same as 2.</p> <p>(5) “It was the duty of the plaintiff to exercise due care to conserve his own safety, under all the circumstances; and if you are reasonably satisfied from the evidence that plaintiff’s negligent failure to exercise such care, as alleged in any one of the pleas of contributory negligence, proximately contributed to plaintiff’s injuries, you must find for the defendant.”</p> <p>(6) Same as 2.</p> <p>(7) “If you are reasonably satisfied from the evidence in this case that the plaintiff was guilty of negligence which proximately contributed to his injuries in the slightest degree, you must find for the defendant.”</p> <p>(8) “Unless each individual juror is reasonably satisfied from the evidence that the plaintiff is entitled to recover, you cannot find a verdict for the plaintiff.”</p> <p>(9) “If the jury believe from the evidence that the plaintiff knew that steam was escaping' from the boilers into the cylinders of said engines, and in danger of causing the disk or side rods to move, and kneAV that should said disk or side rods move while his hand Avas on or dangerously near the same, and the plaintiff negligently placed his said hand on or. dangerously near said disk or side rod, and that said disk or side rod moved and injured him as alleged, the jury must find for the defendant.”</p> <p>(10) “Even if you find from the evidence in this case that plaintiff Avas injured by reason of such defect, no presumption arises from such fact that plaintiff was injured as a proximate consequence of the negligence alleged in the complaint, or in any count of the complaint.”</p> <p>(11) “The mere fact that plaintiff Avas injured raises no presumption that he Avas injured as a proximate consequence of the negligence alleged in the complaint, or any count thereof.”</p> <p>(12) “If the jury believe from the evidence that the plaintiff was himself aware that steam was escaping from the boilers into the cylinders of said engine, and that this would probably cause the disk or side rods of said engine to move at any moment, and with knowledge and appreciation of the danger arising therefrom he voluntarily placed his said hand that was injured on the said disk or side rods of said engine without necessity therefor, and thereby received his said alleged injuries, then the jury must find for the defendant.”</p> <p>(13) “The jury must find for the defendant if they believe from the evidence that the plaintiff failed to cut off the steam from said engine before beginning his work of cleaning or wiping said engine, and that his said failure to cut off said steam proximately contributed to his said injuries.”</p> <p>(15) “If the jury believe from the evidence that the defendant had equipped said machinery Avith a safety device by which the steam could be cut off, so as to prevent the engine from starting, owing to the defective throttle valve, while work was being done on said engine, and the plaintiff knew of this safety device, and knew that by using it the steam could be cut off, and the engine prevented from moving Avhile he was working on it, and if the jury further believe from the evidence that the plaintiff kneAV that, if the steam Avas not cut off, the engine would likely or probably start while he Avas working on it, and injure him, and that plaintiff failed to cut off the steam by means of said safety device before beginning said work on said engine, and that said engine started by reason of said steam not being cut off, and injured him then the jury must find for the defendant!”</p> <p>The court should have stricken pleas 19, 22, 23, 25, 26, and 27, as plea 17 was on file, and embraced the same defenses, and the same averments. The demurrer to plea 18 should have been sustained. — Osborn v. Ala. 8. & W. Co., 135 Ala. 571; Southern C. O. Co. v. Walker, 51 South. 169; Lockhart v. Sloss-Sheffield, 51 South. 627; Jones v. Pioneer M. & M. Co., 149 Ala. 402. Pleas 19, 20, 21 and 22 were subject to the demurrers interposed.- — -Authorities supra. Plea 25 was subject to the demurrer interposed. — T. C. I. & R. R. Co. v. Herndon, 100 Ala. 451; Bear Creek M. Co. v. Parker, 134 Ala. 293. Plea 27 as amended was subject to the demurrer. — Authorities supra. The court erred in giving charge 1 requested by defendant.- — So. Ry. v. Arnold, 114 Ala. 183; Holland v. T. C. & I. Co.; Woodward I. Co. v. Sheehan, 52 South. 25. On the same authorities charge 3 should have been refused. The trial court erred in giving written charges 2 -and 4. — A. G. S. v. Brooks, 135 Ala. 401. Charge 8 was improperly given. — Crain v. State, 52 South. 32. Counsel discuss other charges given and refused, but without further citation of authority.</p> <p>Pleas 23, 26 and 27 were eliminated by demurrer, and hence, the assignment of' eror because of a failure to strike these with other pleas mentioned cannot be sustained. Plea 18 was good and not subject to the demurrer interposed.- — Sloss-Sheffield Co. v. Knowles, 129 Ala. 410; Alteriac v. West Pratt Co., 161 Ala. 436; George v. M. & O: R. R. Co., 109 Ala. 246; So. Ry. v. Worthy, 114 Ala. 184; Coosa Mfg. Co. v. Williams, 133 Ala. 606; Plea 19 was good. —Merriweather v. Sayre M. cG H. Co., 161 Ala. 454. Plea 20 was not subject to the demurrers interposed. —A. B. cG A. v. Alexander, 161 Ala. 382. Plea 21 was sufficient. — Qtainor v. So. Ry., 152 Ala. 191, and authorities previously cited. Plea 25 was not subject to demurrer. — Garlson v. Ericlcson, 51 South. 174. Plea 27 was sufficient under the above authorities. It is never error to give misleading charges, the duty being on the opposing party to request explanatory charges. Counsel discuss other charges given and refused, but without further citation of authority.</p>

Heard before Hon. Robert N. Bell. Action by Isaac Ralston against the Sloss-Sheffield Steel & Iron Company for injuries received from an explosion of dynamite while engaged in its employment. Judgment for plaintiff and defendant appeals. The defendant was entitled to the affirmative charge on the first count, as the theory of that count was not supported by the evidence.

Shelby County Court. Heard before Hon. E. S. Lyman. Action by A. J. Crim against J. B. Adams, doing business as tbe Longview Lime Works, for damages for personal injury. From a judgment for plaintiff, defendant , appeals. Tbe complaint charged that the plaintiff was in the employment of the defendant, and was riding upon a certain dinkey, or engine, in the discharge of his duty, when the engine became derailed, proximately causing the injury complained of.

Heard before Hon. W. W. Haralson. Action by Marcus Johnson against the Nashville, Chattanooga & St. Louis Railway for damages for injuries received while in its employment. Judgment for defendant on a directed verdict, and plaintiff appeals. The court was in error in directing verdict for defendant, as under the evidence, it was a question for the jury as to whether or not the superintendent was negligent. — 2 LeB.

Heard before Hon. Charles A. Senn. Action by Mary E. Goocli, administratrix,' against the Birmingham Railway, Light & Power Company. From a judgment for defendant, plaintiff appeals.

Heard before Hon. C. W. Ferguson. Action by Amanda Tannehill against the Birmingham Railway, Light & Power Company for injuries alleged to have been received by her while a passenger in alighting from a car. Judgment for defendant, and plaintiff appeals. There was but one count in the complaint, charging simple negligence. The pleas were: (1) The general issue.

Heal’d before Hon. C. W. Ferguson. Action by Hattie I. Anderson against the City of Birmingham and another. From a judgment for defendants, plaintiff appeals.

Heard before Hon. C. W. Ferguson. Action' by Ben Shebor against W. O. Barbour for personal injury. Judgment for plaintiff, and defendant appeals.

Heard before Hon. S. L. Brewer. Action by Frank H. Ellis against J. P. Batson for damages. Judgment for defendant, and plaintiff appeals.

W. W. Pearson. Action by Mrs. G. P. North against the Western Union Telegraph Company for delay in delivery of a death message. Judgment for plaintiff, and defendant appeals. The verdict was against the law and the.evidence, and defendant was entitled to new trial although a remittitur was offered by plaintiff. — 27 A. & E. Enc. of Law, 1035; W. U. T. Co. v. Emerson, 161 Ala. 221.

Heard before Hon. C. C. Nesmiti-i. Action by Mary Wise as administratrix against J. N, Curl and others, for damages for killing her intestate by shooting him. Judgment for defendants and plaintiff appeals. Counsel discuss assignments of error, but without citation of authority.

Heard before Hon. Samuel B. Browne. Action by the Stonewall Insurance Company against the Southern Railway Company, for damages for loss occasioned by fire alleged to have been set out by its locomotive, the Insurance Company having paid the loss, and had the claim assigned to it. Judgment for plaintiff and defendant appeals. The basis of the suit is tort or ex delicto. — 28 A. & E. Enc. of Law, 253.

Heard before Hou. B. M. Miller. Action by Jerome Seigel against Thomas H. Long for damages for assault and battery. Judgment for plaintiff and defendant appeals. The bill of exceptions does not violate the rule in such a sense as to authorize the bill to be stricken'. — N. A. Go. v. Brakefiolcl, 123 Ala- 605; Gainor v. L. é N., 136 Ala. 244. The court erred in permitting the appearance of Mr. Long to be introduced in evidence. — 3 Brick. 436.

Heard before Hon. J. A. Bilbro. Suit by John C. Billingsley against the Nashville, Chattanooga & St. Louis Railway for personal injury. Judgment for defendant, and plaintiff appeals. The facts made by the complaint are that plaintiff was a passenger on a street car, operated by the Alabama City, G. & A. Ry. Co., and that he was injured in a collision by a train of defendant with the street car on which he was a passenger at a grade crossing.

Heard before Hon. D. W. Speake. Action by Julia A. Bogue as administratrix against the Louisville & Nashville Railroad Company, for damage for the death of her intestate caused by being struck by one of defendant’s trains while walking along such roadway, lighting its switch lamps. Judgment for plaintiff: and defendant appeals.

Heard before Hon. Charles W. Ferguson. Action by J. E. Griffith against the Southern Railway Company, for wrongful ejection of passenger. There was judgment for defendant, which, on motion, the court set aside under the circumstances stated in the opinion, and the defendant appeals.

Heard before Hon. W. W. Haralson. Action by Albert J. Smith, as administrator, against the Southern Railway Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. C. B. Gwin. Action by Thomas Dickerson against U. Schwabacher for malicious abuse of process. Judgment for defendant, and plaintiff appeals.

Heard before Hon. William M. Walker. Action by Clifton E. Linderman against the Tennessee Coal, Iron & Railroad Company. From a judgment for defendant, plaintiff appeals.

Original petition in the Supreme Court. Petition by J. M. Steverson for certiorari to review the judgment and opinion of tbe Court of Appeals in the case of Cent, of Ca. By. Co. v. J. M. Steverson, 3 Ala. App. 313; 57 South. 494, wherein it ordered a reduction of the verdict, which being refused by appellee, the cause was reversed and remanded for new trial.

Heard before Hon. John W. Inzer, Trespass and trover by J. E. Brown against E. A. Morris and others, for the conversion of a sawmill outfit. Judgment for plaintiff; and defendants appeal. The court was in error in permitting Brown to testify in reference to the value of the sawmill outfit. — Winter v. Burke, 81 Ala. 33; Nelson v. Wood, 61 Ala. 177. Counsel discuss other assignments of error, but without further citation of authority.

Heard before Hon. A. O. Lane. Action by Mrs. Mary W. Lide against the Birmingham Railway, Light & Power Company, for damages for injury to her while a iiassenger. There was judgment for defendant, which on motion was set aside, and defendant appeals.

Heard before Hon. Charles W. Ferguson. Action by Leanna Porter, administratrix of Ira Porter, deceased, against the Tennessee Coal, Iron & Railroad Company. From a judgment for defendant, plaintiff appeals. The complaint contains 11 counts, the first being under the Employers’ Liability Act (Code 1907, § 3910), and counting on the negligence of the superintendent.

Heard before Hon. C. TV. Ferguson. Action by Mrs. M. E. Brannon against the City of Birmingham for injuries occasioned by a defective street. From a judgment for defendant, plaintiff appeals.

Heard before Hon. C. C. Nesmith. Action by Lloyd H. Canfield against the Birmingham Bailway, Light & Power Company. From a judgment for plaintiff, defendant appeals. The facts appear from the opinion of the court.

Heard before Hon. A. H. Alston. Action by Joe Bynum against Joe L. Jones, for damages for an assault and battery. From a directed verdict for defendant plaintiff appeals. The court was in error in giving the affirmative charge in this case. — Mitchell v. Gambill, 140 Ala. 316; Thomas-on n. Gray, 82 Ala. 291; Phillips v. Kelly, 29 Ala. 628.

Heard before Hon. A. O. Lane. Action by C. E. Quinn against tbe Pratt Consolidated Coal Company for damages for waste to bis reversion. Judgment for defendant and plaintiff appeals. Fraud by one accompanied with damages to tbe party defrauded gives a right of action. — Sec. 2468, Code 1907.

Heard before Hon. II. A. Sharpe. Action by C. H. Larue as administrator against the C. Gr. Kershaw Contracting Company, for damages for the death of his intestate. Prom a judgment overruling demurrers to defendant’s plea of the statute of limitations, plaintiff appeals. The only question presented is the single one whether the cause of action created by the Tennessee statute is barred by the statute of limitations of Alabama of one year.

Heard before Hon. C. P. Almon. Action by T. E. McCullough against the Sloss-Sheffield Steel & Iron Company for damages for overflowing lands.

Heard before Hon. B. M. Miller. Action by B. Appel against the Selma Street & Suburban Railway Company. Prom a judgment for defendant, plaintiff appeals.

Heard before Hon. B. M. Miller. M. E. Martin brought action against the Selma Street & Suburban Railway Company, for damages for killing a dog. There was judgment for plaintiff and on appeal to the Court of Appeals of Alabama, the judgment was affirmed. (Selma Si. é Su. Ry. Go. v. Martin, 2 Ala. App. 537; 56 South. 601). The appellant brings certiorari to review the judgment in that case.

Heard before Hón. J. C. B. Gwin. Action by J. A. Simpson against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. Charles W. Ferguson. Action by Lela King and others, as administrators of the estate of George King, deceased, against the Woodward Iron Company for damages for death of their intestate while in the employment of the defendant. Judgment for defendant, and plaintiffs appeal. The substance of the complaint is sufficiently set out in the opinion.

<p>Appeal from Perry Circuit Court.</p> <p>Heard before Hon. B. M. Miller.</p> <p>Action by the Bibb County Banking & Trust Company against C. J. Stewart. Judgment for plaintiff, and defendant appeals.</p> <p>It appears that tbe notes were made payable to the order of N. H. Thompson, and negotiable and payable at the office of the plaintiff. It is alleged that they were transferred and indorsed to plaintiff on the 15th day of January, 1904, and have been ever since and are now the property of the plaintiff. The following are the pleas: (2) “That the note sued on in said complaint, and the notes sued on in each count thereof, Avere transferred by the payee thereof, N. H. Thompson, to the plaintiff, as collateral security to the indebtedness of said N. H. Thompson to the plaintiff, secured by the transfer of said notes, bore a usurious rate of interest, or was made at a usurious discount; that prior to the bringing of any suit on the said note the defendant paid each of said notes in full to N. H. Thompson, without knowledge of the fact that said notes, or either of them, was held by the plaintiff, but believing that each of them was held by the payee, said N. H. Thompson, who is now dead, and that said bank is not a bona fide holder of said notes.” The eighth plea is that the notes were transferred by Thompson as collateral security to secure an indebtedness due by Thompson to said bank, and that said Thompson demanded of plaintiff a receipt for said note so transferred as collateral security, and that said plaintiff willfully failed and refused to give said Thompson, who is now dead, such receipt. Wherefore defendant avers that no title to said noté passed to plaintiff, and it cannot now recover.</p> <p>One is not a bona fide holder of a note who takes it as collateral security to a debt which bears usurious interest. — r Hart v. Adler, 109 Ala. 467. Notes taken as collateral to secure two existing debts are not held bona fide.— Connolly v. Insurance Co., 66 Ala. 432; Moore v. Ensley, 112 Ala. 228; Thompson v. Maddox, 117 Ala. 468. Therefore, the commercial paper was not protected in. such hands. — Vann v. Mayberry, 100 Ala. 438; Hart v. Freeman, 42 Ala. 568. The notes were a mere pledg'd and the legal title was not in plaintiff in this case.— Sims v. Canfield, 2 Ala. 560; Williamson v. Culpepper, 16 Ala. 211. The holding of commercial paper for an undue length of time casts a cloud on the bona fides of the transaction. — 25 N. Y. 293.</p> <p>.The court properly sustained demurrers to the pleas. — Primm £ Eimbell v.. Hammel, 134 Ala. 652; Louisville B. Co. v. Howard, 123 Ala. 380; Same v. Cray, 123 Ala. 251; First Nat. Bank v. Johnson, 97 Ala. 655. Nothing short of the limitation will bar a right of recovery on a note.</p>

Heard before Hon. William L. Lee, Special Judge. Assumpsit by J. B. Long against J. M. Holley and others. Judgment for defendants and plaintiff appeals.

Equity Court. Heard before Hon. Saffold Bernes:. Action by B. B. Chamberlain as trustee in bankruptcy against the Shawnee Fire Insurance Company upon a policy issued to the bankrupt. Judgment for defendant and plaintiff appeals. The iron safe clause is a condition in the nature of a promissory warranty, a breach of which by the assured will void the policy. — Robinson v. Aetna F. I. Go., 135 Ala. 650; Home I. Go. v. Allen, 128 Ala. 457; Gramford v. Hanover F. 1.

Appear from Selma City Court. Heard before Hon. J. W. Mabry. Assumpsit by the Imperial Cotton Seed Oil Company against Phillip T. Shanks. Judgment for defendant and plaintiff appeals. The law governing the sale of fertilizer will be found in sections 24 to 48, Code 1907. By section 45, cotton seed meal is exempt, and its regulations will be found in sections 49 and 50.

Heard, before Hou. J. J. Ray. Action by J. W. Drummond against Howard Lamar. Judgment for defendant and plaintiff appeals. Counsel discuss the assignments of error, with citation of authority, but do not discuss the points decided. Counsel insist that what purports to be a bill of exceptions cannot be so considered by the court, and that as there are no errors assigned on the record proper, the judgment should be affirmed.

Heard before Hon. Charles W. Ferguson. Action by Will McFarlin & Company, against Christina S. Webb and others on an injunction bond. Judgments for plaintiffs and respondents appeal. The following is the contract referred to in the opinion: The State of Alabama, Jefferson County.

Heard before Hon. Thomas W. Wert. Action by W. A. Hughston against the Southern Bitulithic Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. W. H. Thomas. The First National Bank had judgment against the • Montgomery Iron Works, and in aid thereof procured garnishment to issue and be served upon J. W. Dim-mick. From a judgment for the garnishee plaintiff appeals.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. John C. Pugh.</p> <p>Action by A. J. Terrell against Frank Nelson, Jr., and another, for a breach of contract to purchase stone. Judgment for defendants and plaintiff appeals.</p> <p>The first count charges a contract alleged to have been made by defendants with plaintiff, by which the defendants, for value received, promised to purchase and receive from plaintiff, at fl per cubic yard, all the stone that might be necessary to complete the construction of lock 3 on the Tombigbee river, to wit, 20,000 cubic yards, said stone to be delivered by plaintiff on defendants’ barges on the Warrior river, in Tuscaloosa county, Ala.; and plaintiff avers that defendants breached said contract in this: That, before plaintiff was ready to begin the delivery of such stone, defendants notified plaintiff that they would not receive same, and plaintiff thereby lost the profit which he had expected to make, and might have made, in furnishing same, and sustained other damages. The second count alleges the contract of same as count 1, but alleges the breach as follows: “That defendants failed and refused to receive or purchase said stone, or any part thereof, to plaintiff’s damage as aforesaid, including the profits he might have made.” The third count alleges the contract to be that the defendants promised to purchase and receive from plaintiff, at $1 per cubic yard, all the stone for work upon lock 3 on the Tombigbee river that could be quarried and loaded on defendants’ barges in time for transportation during the boating-season on said river of the spring and summer of 1910, the quantity thereof not to be less than 8,000 cubic yards, and not more than 10,000 cubic yards, the stone to be delivered by plaintiff on defendants’ barges on the Warrior river in Tuscaloosa county, Ala.; and plaintiff avers that said defendants breached said contract in this: That, before plaintiff was ready to begin delivering said stone, defendants notified plaintiff they would not receive same, and declined to comply with said contract, and plaintiff thereby lost the profits, etc. The fourth count charges the contract as in count 3, with an ádditional contract that 10,000 cubic yards of stone should be quarried and piled on the banks of said river, to be delivered on defendants’ barges during the succeeding boating season in 1911, making a total of 20,000 cubic yards to be delivered, but that, before plaintiff was ready to deliver same, defendants canceled their contract, whereby' plaintiff lost profits, etc. The demurrers take the points discussed in the opinion.</p> <p>The complaint Avas good as a complaint for nominal damages at least, and the fact that it counted on non-recoverable damages could not be raised by demurrer. — Gooden v. Moses, 99 Ala. 230; Treadwell v. Tillis, 108 Ala. 262. The court erred in sustaining demurrer No. 2 to the complaint. —Hunt v. Test, 8 Ala. 713; Union Go. v. Barton, 77 Ala. 118; 9 Cyc. 688. The laAV does not favor but leans against the destruction of contracts because of uncertainty. — Robinson v. Bullock, 58 Ala. 618.</p>

Heard before Hon. Tpiomas W. Wert. Action by J. L. Hay, as trustee in bankruptcy, against tbe Home Insurance Company. From a judgment for defendant, plaintiff appeals.

Heard before Hon. Charles W. Ferguson. Action by Daniel Downey against the Alabama Western Railroad Company for work and labor done. Judgment for plaintiff, and defendant appeals. The only question presented hy the assignment of error is the action of the trial court in admitting the stenographic report of the evidence of Ben Talley, C. H. Roehrig, and Baxter L. Brown as witnesses for the plaintiff, under the circumstances as shown by the opinion.

Heard before Hon. A. E. Gamble. Assumpsit by B. B. Bridges and another against E. P. Rentz. Judgment for defendant, which the court on motion set aside and the defendants appeal. All the parties plaintiff must be entitled to recover or none can. — McLeod v. McLeod, 73 Ala. 42; Lovelace v. Hutchinson, 106 Ala. 425; Prestwood v. McGowan, 128 Ala. 267. The agreement fails to show that both parties were entitled to recover, and hence, the court erred in disturbing the verdict.

Heard before Hon. William H. Thomas. Action by William A. Bell against the Cook & Laurie Contracting Company.. Judgment for plaintiff, and defendant appeals. Plaintiff sued defendant for the purchase price for 2.000 barrels of cement. The complaint is in general assumpsit, and contains two counts declaring on simple account and account stated, and one count for the price of merchandise sold to defendant on December 19, 1908.

Heard before Hou. S. L. Brewer. Action by G. R. Shaffer against W. A. Handley and others for broker’s commissions. Judgment for plaintiff, and defendants appeal. The court directs the following statement: Plaintiff sues for commissions due to him as an agent or broker by reason of the sale of 24,000 acres of land.

Heard before Hon. W. W. Whiteside. ■ Bill by tbe Dadeville Oil Mill against W. W. Hicks and others, to declare certain mortgages a general assignment for the benefit of all creditors. Prom a decree overruling demurrers to the bill, respondents appeal.

Heard before Hon. Alfred H. Benners. Bill by the Central Iron & Coal Company against Tom Ballard and others to enjoin certain actions at law, to prevent multiplicity of suits. From a judgment sustaining demurrers to the bill, complainants appeal.

<p>Original petition in Supreme Court.</p>

<p>Original petition in.Supreme Court.</p>

<p>Original petition in Supreme Court.</p>