Volume 178 — Alabama Reports

<p> Murder. </p> <p>1. Bill of Exceptions; Establishment. — On the death of the trial judge an undated stipulation signed only by the solicitor for the state, cannot he treated as a sufficient bill of exceptions under section 3022, Code 1907, as such section requires that in the event the judge died the bill of exceptions shall be established as in the case where a judge refuses to sign it.</p> <p>2. Criminal Lmo; Severance; Waiver. — Where the record does not show that any action was taken on a motion made by a defendant for a severance, it will be presumed on appeal that the same was waived.</p>

- Heard before Hon. D. W. Speake. Phil McGhee, was convicted of murder in the first degree, and he appeals. The ¡objections to the evidence sufficiently appear from the opinion of the court.

Heard before Hon. James A. Bilbro. Joe Saulsberry was convicted of murder in the first degree, and he appeals. The exceptions to the evidence are sufficiently noted in the opinion.

<p>Appeal from Wilcox Circuit Court.</p> <p>Heard before Hou. B. M. Miller.</p> <p>Johnson Lewis was convicted of murder in the first degree, and appeals.</p> <p>The facts sufficiently appear from the opinion of the court. The following charges were refused the defendant:</p> <p>(14) “The court charges the jury that if the jury believe from the evidence that the deceased was not appointed a deputy by the sheriff, S. D. Moore, and if they further believe that the only authority that deceased had for the arrest of defendant was a request of Springle that deceased should arrest and bring in the defendant, Springle not being with deceased at any time, then the court charges the jury that the deceased had no authority in law to arrest the defendant.”</p> <p>(15) “The court charges the jury that a special deputy sheriff cannot, without being present, delegate his authority to another. He might call on some one to assist him, but cannot appoint another to act in his stead.”</p> <p>(16) “The court charges the jury that, under the evidence in this case, they cannot find the defendant guilty of either murder in the first or second degree.”</p> <p>(10) “I charge you, gentlemen of the jury, that, under the evidence in this case, Trammel, the person alleged to have been killed, was a trespasser upon the premises of Johnson Lewis; and, if the jury believe from the evidence that the defendant was rightfully in his diverting house on said premises, then I charge you that the defendant was in his castle, and had a right to defend the same against unlawful and forcible intrusion.”</p> <p>(12) “If the jury believe from the evidence that Trammel had no warrant for the arrest of the defendant, and if they further believe from the evidence that deceased forcibly took defendant to defendant’s house and put his hand on his pistol, then, the defendant being at the time in his dwelling house, the jury must acquit the defendant.”</p> <p>(13) “The court charges the jury that if the jury believe from the evidence that deceased had no warrant for the arrest of defendant, and the deceased forcibly carried defendant to his house and put his pistol in defendant’s face, that then the jury must acquit the defendant.”</p> <p>(6) “The court charges the jury that, even though the deceased had a legal warrant or capias for the arrest of defendant, if the jury believe from the evidence that the warrant charged the defendant with the commission of a misdemeanor, it would have been murder in deceased, had he killed defendant in an attempt to escape.”</p> <p>(1) “The court charges the jury that, there is no evidence in this case that deceased had either a warrant or capias when he attempted to arrest the defendant.”</p> <p>The order of the court Avas not sufficient. — Acts 1909, p. 319; Washington v. State, 81 Ala. 35. Defendant’s motion to quash the venire should have been granted. — Acts 1909, p. 319. The dying declarations Avere not admissible.— Johnson v. State, 99 Ala. T80; 117 Ala. 20. The court erred in admitting the books in evidence, and also erred in permitting the sheriff to shoAV that he had.a capias for defendant, and had turned it over to a deputy. Charge 1 should have been given — Adams v. State, in MSS. Charge 6 should have been given. — Brown v. State, 109 Ala. 70; Adams v. State, supra. Charges 17, 10, 12, 13, 14, 15 and 16 should have been given.— Brown v. State, supra; Sec. 6267, Code 1907, and cases there cited.</p> <p>The service of the second copy on defendant two days before the. trial corrected any errors or irregularities in the order and service of the venire. — Coates v. State, 1 Ala. App. 35; Savage v. Slate, 57 South. 469. A motion to quash was properly denied. — Sec. 29, Acts 1909, p. 319. Counsel discuss charges given and refused, but Avithout citation of authority. The court properly admitted the book as tending to shoAV hoAV the wounds were inflicted. —Barnett v. State, 165 Ala. 59; Newell v. State, 115 Ala. 54; Burton v. State, 107 Ala. 108; Holley v. Slate, 75 Ala. 410. The court properly admitted evidence of the dying declarations. — Heninburg v. State, 153 Ala. 313; Pate v. State, 150 Ala. 10; Blackburn v. State, 98 Ala. 63; Pulliam v. State, 88 Ala. 1. Where a question is ansAvered before objection is interposed, the objection comes too late. — Stowers P. Co. v. Brake, 158 Ala. 639; Downey v. State, 115 Ala. 108; McCalman v. State, 96. Ala. 98. Questions not answered do not show error. —Hughes v. State, 75 Ala. 31; Snodgrass v. Caldwell, 90 Ala. 319; Harris v, Basden, 162 Ala. 367.</p>

Heard before Hon. Thomas W. Coleman, Jr. William McGuffin was convicted of murder in the second degree, and he appeals. The oral charge of the court, objected to, Avas as follows: “(1) If a man is subject to arrest — done something for Avhich officers of the law have a right to arrest him — and he should take the life of another intentionally, in order to avoid arrest, that might be his sole motive.

Heard before Hon. James A. Bilbro. Claude Chaney was convicted of murder in the second degree and sentenced to the penitentiary for 35 years, and he appeals.

Heard before Hon. John H. Peach, Special Judge. Lester Ragland was convicted of murder in the first degree, and he appeals. The objections to evidence sufficiently appear from the opinion.

<p> Murder. </p> <p>Homicide; Evidence; Admissibility. — Where the homicide was not committed in self-defense, it was not admissible to introduce evidence of improper relations between decedent and the wife of defendant, before the homicide, where such relations were not so recently sustained as to justify any sudden passion and thus reduce the offense to manslaughter.</p> <p>(Mayfield, Sayre and deGraffenriecl, JJ., dissent.)</p>

Heard before Hon. D. W. Speaks. Lewis Toone was convicted, and appealed to the Court of Appeals, which certified questions to the Supreme Court.

Heard before Hon. John T. Lackland. Tom Jackson was convicted of murder in the first degree, and he appeals. Counsel discusses the evidence, and insists that it failed to show any preconcert with Ben Jackson, and that it was insufficient upon which to rest a finding of guilt, or a reasonable inference of guilt, and that therefore, defendant was entitled to the affirmative charge. — Turner v. Stale, 97 Ala. 57.

Original proceedings in habeas corpus by Law Lamar, to secure his discharge from imprisonment under a warrant of arrest. There was a judgment of the Court of Appeals (5 Ala. App. 259, 59 South. 737) reversing a judgment of the city court discharging petitioner, and he brings error. There is nothing in section 5, Acts 1907, (S. S.) p. 22, which permit, or even suggest, the principle of repeal by implication.— Abernathy v. State, 78 Ala. 413; State v. White, 160 Ala. 168.

Ernest Lower Avas convicted of carrying concealed weapon, and appealed to the Court of Appeals of Alabama Avhere the judgment of conviction Avas affirmed-See Lower v. The State, 3 Ala. App. 122; 57 South. 500. He brings certiorari to review the judgment of the Court of Appeals.

Heard before Hon. Henry B. Foster. Clarence Story was convicted of carnally knowing a woman against her will, and he appeals. The brief on original submission did not reach the reporter. On rehearing counsel insist that to. give the statute the construction contended for by the State would be to eliminate therefrom the words, “without her consent,” and this the courts will not do.

Heard before Hon. L. D. Gardner. Bill by W. J. Singleterry, a non compos mentis, by Ms next friend, against Lncy Bradley and others, to set aside a conveyance as fraudulent, and to subject the property thereby conveyed to the payment of the decree rendered in the probate court in favor of the non compos as against his guardian on final settlement. From a decree overruling demurrers to the bill, respondents appeal.

Heard before Hon. A. H. Benners. Bill by Adrian DeLong against the Southern States. Fire & Casualty Insurance Company to rescind and cancel a contract of purchase of stock in said corporation on the ground of fraud and misrepresentation. There ivas a decree for complainant and respondent appeals. The representations must have been of a material existing fact on which the person relied, and must have been false in order to rescind.- — -Story’s Equity, sec. 199.

Heard before Hon. A. H. Benners. Bill by H. Brannon against the Southern States Fire & Casualty Company to rescind and cancel a purchase of the shares of the capital stock of such company because of misrepresentation and fraud. Decree for complainant, and respondent appeals. Counsel discuss the equities of the bill and the finding of the Chancellor on the facts, but in view of the opinion it is not deemed necessary to here set them out.

Heard before Hon. W. W. Whiteside. Bill by Martha Dickson against Louis F. Dickson and others to quiet title to land under the statute. Decree for complainant, and respondents appeal.

<p> Divorce. </p> <p>Divorce; Ground; Desertion. — To constitute an abandonment, authorizing a divorce, there must be a final departure without the consent of the other party, without sufficient reason, and with no intention to return; the facts examined in this case and held not to constitute an abandonment of the husband by the wife.</p>

■ Appeal from Jefferson Chancery Court. Heard before Hon. A. H. Benners. Bill by John W. Barclay against the Alabama Great Southern Railway to abate a nuisance. From a decree overruling demurrer to the bill, respondents appeal.

Heard before 1-Ion. L. D. Gardner. Bill by Lula Graves, individually, and as administratrix with the will annexed, of Emma Seay, against W. J. Seay, to remove the administration of decedent’s estate from the probate to the chancery court, to recover assets and for an accounting against the husband of testatrix as agent of the estate.

Heard before Hou. W. H. Simpson. Bill by Mollie V. Woodruff and others, against the City of Florence, and another, to abate a public nuisance, and incidentally to recover damages therefor. There was a decree overruling demurrers to the bill, and the respondents appeal and separately assign error after severance. The bill was demurrable for failure to show an injury other and different from that suffered by the general public. — Sloss-8, S. & T. Go. v. Johnson, 147 Ala. 384.

Heard before Hón. A. H. Benners. Bill by A. -S. Cowan, as trustee, against D. F. Staggs and others, to annul a conveyance as a fraud on creditors and condemn the land for payment of respondents’ debt. Decree for respondents, and complainant appeals.

Heard before Hon. L. D. Gardner. Bill by Paul Heun against P. L. Dunson to quiet title. Decree for complainant and respondent appeals. An altered deed contains a memorial of the conveyance, and may be introduced to prove such conveyance, and the existence of title with or without explanation. — Burgess v. Blake, 128 Ala. 105; Ala. 8. L. Co. v. Thompson, 104 Ala. 570.

Heard before Hon. L. I). Gardner. . Bill by Mary V. Austill against the American Freehold Lánd Mortgage Company, Limited, and others, to enforce a lien of a mortgage executed by her so as to relieve her of suretyship. From a decree sustaining demurrers to the bill complainant appeals. The failure of a third party to accept the promise of the purchaser to pay the debt of the vendor does not destroy the lien.

Jefferson Chancery Court. Heard before Hon. A. H. Benners. Bill by Nannie E. McFarlin against E. V. Conniff and others, to cancel a sale of land made by the probate court, and for partition. From a decree overruling demurrers to the bill respondents appeals. The power of the probate court in granting letters testamentary or of administration is constitutional, general, original and unlimited. — Barclift v. Treist, 77 Ala. 528.

Heard before Hon. W. W. Whiteside. Bil] .by the Independent Lumber Company against J. A. Pay & Egan Company, to cancel a contract for fraud, and for an injunction against a suit at law. Prom a decree overruling demurrers to the bill respondent appeals. The contract contained an express warranty covering the particular points about which complaint is made, and parol evidence cannot be introduced to add to that warranty. — ■ 17 Oyc. 596; Mecham on Sales, sec. 1251.

Heard before Hon. W. H. Simpson. Bill by Carter Swope against Clay Swope and others, with cross-bill by Edgar C. Swope as administrator, for the settlement of an estate, and to remove it from the probate to the chancery court. From the decree Clay Swope and others appeal.

Heard before Hon. L. D. Gardner. . Bill by Mrs. E. C. Wesley against the Interstate Bank to cancel a mortgage on her land, because given as security for the debt of her husband. From a decree granting relief respondent appeals. The bill as amended was not proven and there was a variance as to the date of the alleged^ mortgage.

Heard before Hon. Armstead Brown. Bill by Robert Woolf oik against tbe Atlantic Coast Line Railroad Company, to enjoin respondent from collecting -and discharging surface water upon bis land, and incidentally, for damages. Decree for complainant and respondent appeals.

Heard before Hon. H. A. Pearce. Bill by E. D. Wills and others against the City of Birmingham to enjoin the city from enforcing the collection of an assessment for public improvement, and to cancel the lien as cloud on title. From a decree granting relief respondent appeals. There is no equity in the bill. — McCullough v. Maryland, 4 Wheat. 316; Coley’s Const. Lim. 587-8; Page & Jones on Taxation, sec. 918; sec. 1381, Code 1907.

Heard before Hon. H. A. Si-iarpe. Bill by Mrs. C. E. Abernathy against the City of Birmingham to enjoin the city from enforcing an assessment for public improvement, and to cancel same as cloud on title. From a decree granting relief respondent appeals. There is no equity in the bill. — McCullough v. Maryland, 4 Wheat. 316; Cooley’s Const. Lim. 587-8; Page & Jones on Taxation, sec. 918; sec. 1381, Code 1907.

Heard before Hon. L. D. Gardner. Bill by M. W. Kirkland against J. F. Arnold to restrain the collection of a mortgage and cancel same. From a decree denying complainant’s relief he appeals.

Heard before Hon. A. H. Benners. Bill by the Warrior Coal & Land Company, against Walter Moore and others, for an accounting, and for the cancellation of certain shares of stock, alleged to have been fraudulently issued. Decree overruling demurrer to the bill, and respondent appeals.

Heard before Hon. W. H. Simpson. Bill by J. H. Harbison against N. J. Campbell to enjoin the obstruction of a public road. From a decree sustaining demurrer to the bill and dissolving the injunction, complainant appeals.

<p> Petition for Intervention. </p> <p>Appeal and Error; Rcvieio; Theory Below. — Where the petition did not count on that theory the erroneous overruling of demurrers to petition for intervention cannot be sustained on the theory that petitioners were entitled to a reasonable fee for service rendered respondent under section 3010, Code 1907.</p>

Heard before Hon. L. D. Gardner. Bill by Hobbie Grocery Company against T. S. Faulk, Ada E. Faulk, George Stuart, receiver in bankruptcy, and B. Frank, as trustee, to treat orator as having a lien of equal dignity with the other creditors in the mortgage on the lands, to reform and correct the mortgage so as to show that the same is and does stand as a security to orator, to foreclose, etc. Decree for complainant, and respondents appeal.

. Heard before Hon. L. D. Gardner. Bill by the Lynchburg Shoe Company and others as creditors without a lien against P. B. McDuffie, Sr., and others, to set aside a conveyance as fraudulent and to subject it to the payment of their debt. From a decree overruling demurrers to the bill respondent appeals.

Heard before Hon. William H. Ti-iomas. Bill by First National Bank of Cleveland, Ohio, against Charles A. Scott, and others, for discovery and relief. From a decree overruling demurrers to the bill, respondents appeal. On the question of the right to take the appeal when taken, and as against the motion to dismiss the appeal, it seems sufficient to cite. — Alexander v. Bales, 127 Ala. 328; Sims. Ch. Cr. sec. 421.

Heard before Hon. W. W. Whiteside. Bill by Jemima Cantrell against H. C. Cantrell to specifically perform. Prom a decree sustaining demurrers to the bill, complainant appeals. The contract referred to is as follows: “State of Alabama, Tallapoosa County. Know all men by these presents, that I, H. C. Cantrell, of Chambers county, have this day given to Jemima Phillips my entire possessions, which is 190 acres of land and 4 mules. The valuation of the above property is |3,000.

Heard before Hon. H. B. Poster. Bill by Helen Spencer against Joseph Leland and others to cancel a mortgage upon realty because made as security for the debt of the husband. Decree for respondents and complainant appeals.

Heard before Hon. L. D. Gardner. General creditors’ bill by the Bank of Tupelo and others against A. B. Hall and others, to set aside certain conveyances as fraudulent. Prom a decree sustaining demurrers to certain portions of the bill, com- . plainants appeal.

Heard before Hon. Gaston Gunter. Bill by J. P. Dimmick as executor of the estate of J. W. Dimmick, deceased, against T. R. Jones, to foreclose a pledge. From a decree overruling demurrer to the bill respondent appeals. It is well set'tled that in bills of this character the consideration must be distinctly stated, and the mere conclusion of the pleader that there was a valuable consideration is not sufficient. — 20 Ene. P. & P. 435 and 445.

Heard before Hon. L. D. Gardner. Bill by W. ft. Blanchard against Goulding Fertilizer Company and others to reform a deed and mortgage and to enjoin the sale of a certain quarter section of land. From a decree overruling demurrers to the bill, respondents appeal.

Heard before Hon. John H. Disque. Bill by B. T. Walshe against the Dwight Manufacturing Company, to enjoin the casting of surface waters upon his lower land, and for damages. From a decree sustaining demurrers to the bill complainant appeals. Where no appeal is taken from interlocutory order, such order may be assigned for error on an appeal from a final order. — Nelms v. McGraw, 93 Ala. 345; Wadsworth v. Goree, 96 Ala. 227; sec. 2838, Code 1907.

Appeal'from Jefferson Circuit Court. Heard before' Hon. E. C. Ckowe. Bill by B. Zavelo against J. Goldstein and another, to enjoin the enforcement of a judgment at law. From a decree dissolving the temporary injunction, complainant appeals.

Heard before Hon. W. H. Simpson. Bill by Robertson and Bouldin, as administrators against F. D. Gurley and others, to annul a certain conveyance for fraud, and to subject the land and other land to… Held: and it was so stated in the release which must be given effect according to the intention of the parties. — Sec. 3973, Code 1907; Garroll v. Gorbitt, 57 Ala. 579; Smith v. Gayle, 58 Ala. 600; Home Tel. Go. v. Fields, 150 Ala. 306; Gross v. Scruggs, 115 Ala. 258.

Heard before Hon. A. H. Benners. Bill by John R. Dailey against the Alabama Consolidated Coal & Iron Company, to quiet title to certain land. Decree for respondents and complainant appeals. Ten years adverse possession before the filing of the bill was sufficient to vest the legal title. — ■ Echols v. Hubbard, 90 Ala. 309; Brand v. Gar Go., 128 Ala. 579; sec. 4834, Code 1907.

Heard before Hon. H. A. Pearce. Ejectment by Martha Powell and others, against Will Bassett and others. Judgment for plaintiffs and defendants appeal. The following is the agreed statement of facts: “On and prior to September 21st, George W. White owned and was seised and possessed of the land sued for in the complaint, which was the homestead of said White, and was occupied by him and his wife.

Heard before Hon. A. E. Gamble. Ejectment by Sallie B. Kenon and others against W. D. McCurdy, and others. Judgment for plaintiffs and defendants appeal.

Heard before Hon. D. W. Speaks. Ejectment between E. R. Wheeler and Conrad Strickland. Prom a judgment for Strickland, Wheeler appeals. The following is the agreed statement of facts: Conrad Strickland is in possession of the lands sued for as the tenant of Ida Cocroft, and he was so in possession at the time of bringing this suit.

Heard before Hon. B. M. Miller. Ejectment by Maggie E. Barber against the Shuttle & Weaver Land & Improvement Company. Judgment for plaintiff and defendant appeals.

Heard before Hon. S. L. Brewer. Ejectment by Mary E. Lay against Charles L. Fuller and others. Judgment for defendant and plaintiffs appeal. Evidence establishing the relation of parent and child between plaintiff and the former possessor'of the land was one of the facts necessary to be proven, and this fact could be proven by general reputation in the community of such relationship, and that it was so recognized by the father and child.

Heard before Hon. James J. Ray. Ejectment by W. P. Taff and others against the SlossSheffield Steel & Iron Company. From a judgment for plaintiffs, defendant appeals. The facts sufficiently appear in the opinion. The following charges were given at the instance of the plaintiff.

Heard before Hon. T. L. Sowell. Common-law certiorari by Wm. Cook and others to the Court of County Commissioners of Walker County to quash an order establishing, the stock law district. From a decree dismissing the writ, petitioners appeal.

Question certified from Court of Appeals. The Standard Oil Company was convicted of violating the Revenue Act, approved March 31, 1911 (Acts 1911, p. 176) § 23, and questions relative to the validity of such section are submitted to the Supreme Court.

<p> Mandamus. </p> <p>1. Statutes'; Witness Fees; Custody of Funds; Vested. Bights.— Construing Acts 1909, p. 213, and Acts 1911, p. 200, it is held that unclaimed witness fees, not reported by the clerk of the court by which they were collected, did not vest in the state; and by the repeal of the former act without a saving clause as to pending proceedings and prosecutions, such fees were made i)ayable to the County Treasurer, and not to the State Treasurer.</p> <p>2. Same; Construction. — Where the language of a statute is plain and unequivocal and its application definite and certain, courts will not look about for unexpressed intentions nor indulge in speculation as to possible or probable qualifications that might have been in the minds of the legislators.</p> <p>3. Same; Bepeal. — If the repealing statute was general and unconditional, without a saving clause for pending proceedings and prosecutions, these fall with the repeal of the statute authorizing them.</p> <p>4. Same. — When a statute is repealed, it stands as if it had never existed as a general rule, except as to vested rights which have accrued under its operations.</p> <p>5. Constitutional Lato; Vested Bights; Bepeal. — The Legislature has full power to take away by statute rights which have been conferred by statute, when not vested.</p> <p>(McClellan, J., dissenting.)</p>

<p> Mandamus. </p> <p>1. Jury; Commissioners; Powers; Statutes. — Construing together sections 110, 11, 12, 14, 27, Acts 1909, p. 308, it is held that the jury commissioners, haying made the roll, cannot withdraw a name once placed thereon, or add other names; their powers to make a jury roll being exhausted, save when required to make a new list-because of a deficiency.</p> <p>2. Same. — Construing sections 27 and 29 of said Act, it is held that having made a jury roll as required by the Act, the jury commission is without power to remove names therefrom or add names thereto except when required by law to make a new jury roll.</p>

Heard before Hon. H. A. Pearce. Petition by J. E. Henderson directed to the Planters '& Merchants Bank of Ozark to supersede the enforcement of an execution, and to vacate and annul the judgment on which it was founded. From a judgment denying relief petitioner appeals.

Heard before Hon. W. W. Pearson. Mandamus by the State of Alabama to require M. D. Still as Judge of Probate of Elmore county to vacate and annul certain orders made in a condemnation proceeding quashing notice of service, etc. From a decree denying the writ the state appeals. The state has a right to proceed under article 1 of chapter 79, Code 1907, to the condemnation of the lands for public use.

Heard before Hon. J. P. Stiles. Final settlement of E. D. Hall as administrator of the estate of Frank Santangelo, deceased, contested by the heirs of said Santangelo. From a decree disallowing counsel fees and commissions to the administrator, the administrator appeals.

Heard before Hou. W. W. Haralson. Assumpsit by the Gadsden Fertilizer Company against W. S. Wiles and others. Judgment for defendants, and plaintiff appeals.

Heard before Hon. C. C. Nesmith. Action by Joseph Lee against J. S. Shannon to recover commissions as a real estate broker. Judgment for plaintiff and defendant appeals.

<p> Assumpsit. </p> <p>1. Appeal and Error; Review; Fmding of Court; Presumption.— AVliere a cause is tried by the court without the intervention of a jury, the finding of the court has the same presumption of verity as that accorded to a verdict of the jury.</p> <p>2. New Trial; Grounds; Excessive Verdict. — Although the cause is tried by the court without intervention of the jury, a new trial should be awarded where there is no evidence supporting a recovery in anything like the amount awarded as damages by the court.</p>

Heard before Hon. A. E. Gamble. Action by the Walshe Manufacturing Company against the W. T. Smith Lumber Company. From a judgment for defendant, plaintiff appeals. Count 1 is as follows: “Plaintiff claims of defendant the sum of $1,750 as damages for the breach of an agreement in writing, made and entered into by and between the plaintiff and defendant on, to wit, the 1st day of October, 1908, which said agreement is in words and figures as follows, to wit: ‘Proposal.

Heard before Hon. B. M. Miller. Action by Susan B. Gee against the Empire Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. Samuel B. Browne. Assumpsit by Alfred Rose against James A. Lewis for breach of contract in the sale of lumber. Judgment for defendant and plaintiff appeals. The fundamental law of construction of contracts is to seek to ascertain and enforce the intention of the parties, and what is a reasonable time for the doing of the thing where no time is fixed must be determined by the facts and circumstances of each case, as it arises. — Cocker v. Mfg. Co., Fed.

Heard before Hon. B. M. Miller. Action by George F. Gilbert against the Little Cahaba Coal Company for damages for personal injuries sustained while in their employment. Judgment for plaintiff, and defendant appealed. The facts and pleadings sufficiently appear from the opinion, as do the charges given for the plaintiff.

Heard before Hon. B. M. Miller. Action by J. E. Black as administrator against the Roden Coal Company for damages for death of his intestate while engaged in the service or employment of the defendant. Judgment for defendant and plaintiff appealed.

Heard before Hon; H. A. Si-iarpe. Action by William J. Hull, as administrator of the estate of Charlie Hull, deceased, against the Wimberly & Thomas Hardware Company, and others, for damages for the death of his intestate. From a judgment for defendant plaintiff appeals. The point at issue is whether or not a recovery by a father under section 2485, Code 1907, for the death of his child is a bar to a recovery by him as administrator under section 3912, Code 1907.

Heard before Hon. W. W. Peakson. Action by Henry McKinney, pro ami, against the Prattville Cotton Mill Company for damages for personal injuries suffered while in defendant’s employ. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. 0. Lane. Action by C. E. Gardner against Birmingham Machine & Foundry Company, for injuries received while in its employment. Judgment for defendant and plaintiff appeals. Counts 9, 10, 11 and 12 state a cause of action, and the error in overruling demurrers to plea 3 thereto was injurious. — Sloss-Sheffield v. Tilson, 141 Ala. 152; Jackson L. Co. v. Cunningham, 141 Ala. 206; A. G. S. v. Davis, 119 Ala. 572; L. £ N. v. Hunt, 101 Ala. 34.

Heard before Hon. Charles W. Ferguson. Action by J. W. Thomas, Jr., against the Tennessee Coal, Iron & Railroad Company. From a judgment for defendant, plaintiff appeals.

Heard before Hon. C. W. Ferguson. Action by Tillman C. Walker against the Woodward Iron Company for damages for injuries received ivhile in its employment. Judgment for defendant and plaintiff appeals.

Heard before Hon. W. W. Haralson. Action by W. C. Morgan against the Southern Railway Company for damages sustained while a passenger. Judgment for plaintiff, and defendant appeals. For the facts in this case, see former appeal, 5á South. 626, together with the statement made in the opinion.

Heard before Hon. J. C. Richardson. • Action by J. S. Dilburn, as administrator, against tbe Louisville & Nasliyille Railroad Company for the death of his intestate while a passenger. Judgment for plaintiff and defendant appeals. The facts sufficiently appear from the opinion of the court.

Heard before Hon. Henry B. Foster. Action by William M. Smith, as administrator, against the Alabama Great Southern Railroad Company for damages for the death of his intestate. Judgment for plaintiff, and defendant appeals.

Heard, before Hon. J. C. B. Gwin. Action by Sandy Murkerson against Morris Adler and others, for damages for maintaining a nuisance. Judgment for defendants and plaintiff appeals.

Heard before Hon. Charles A. Senn. Action by Smith Brothers & Company against W. C. ' Agee & Company. Judgment for defendant, and .plaintiff appeals. As originally brought, the action was by Smith Bros. & Co., a copartnership composed of A. E. Smith and N. C. Smith, against Walter C. Agee and W. C. Agee & Co., a copartnership composed of W. C. Agee and E. W. Rucker. The complaint was afterwards amended by eliminating all parties defendant except Walter C. Agee.

Heard before Hon. James E. Blackwood. Action by Robbie F. Heald and another as administratrices, against the Alabama City, Gadsden & Attalla Railway Company, for damages for causing the death of their intestate. Judgment for plaintiffs and defendant appeals.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. Charles A. Senn.</p> <p>Action by Raphelia Barranco against the Birmingham Railway, Light & Power Company for damages to her property by planting a post in front of the same. Judgment for defendant, and plaintiff appeals.</p> <p>Count 4 is as follows: “Plaintiff claims of the defendant the sum of $1,000 as damage, for that heretofore, to wit, the 24th day of November, 1906, plaintiff was the owner of lots 16 and 17, in block 207, in the city of Birmingham, county of Jefferson, state of Alabama, and also the buildings and improvements thereon; that on, to wit, said date the defendants, through its agents or servants, were planting poles along Twenty-Sixth street and Sixth Avenue North; and that while doing so the said servants or agents of defendants negligently planted a pole which was several feet in circumference and several feet high, within, to wit, five feet of her building, and in front of her window, on the sidewalk in front of her said property, which was located on the northeast corner of where Sixth avenue intersects with Twenty-Sixth Street North, and negligently planted said pole in an upright position through said shed, and, as proximate consequence thereof, damaged and materially injured her said property; and plaintiff avers that the defendant, through its servants or agents, committed the aforesaid act, Avrongs, and injuries after she had notified the defendant’s said servants and agents not to do so.”</p> <p>Count 5: Same as 4, except that it alleges that the acts done were Avantonlv and intentionally done, in the absence of her husband and over her protest.</p> <p>The laAv does not require the litigant to bring two or more actions for different Avrongs growing out of one transaction.— Birmingham Southern v. Lintner, 141 Ala. 420; Brown v. Masters, 104 Ala. 154. Demurrer is not the proper Avay to reach non recoverable damages. — W. Ü. T. Go. v. Westmoreland, 43 South. 790; Same v. Gartright, 44 South. 212. The 4th and 5th counts as amended Avere sufficient. — B. R. L. & P. Go. v. Oden, 40 South. 129; Donovan v. Alberg, 58 South.. 775; 58 L. R. A. 782; 47 Am. Rep. 453. The person specially injured by a public nuisance may have his action to abate the same, or to recover damages. — 37 Cent. Dig. 1703.</p>

Heard before Hon. Hugi-i I). Merrill. Action by Charity B. Stewart, as administratrix, against Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. The first count was for wanton or willful injury. The second count was for subsequent negligence after the discovery by the servants or agents of the defendant of the peril of plaintiff’s intestate on or near the track, and of failure to use preventive effort by them to avoid injury.

Question certified from the Court of Appeals. A. M. Hinds brought an action against the Nashville, Chattanooga & St. Louis Railway for damages for injury to stock. The defendant set up in pleas 4 and 7 certain clauses of the contract of shipment, and on appeal to the Court of Appeals, from a judgment for plaintiff, the Court of Appeals certified certain questions of law to the Supreme Court.

Heard before Hon. D. W. Speake. Action by J. F. Bieker against the City of Cullman. From a judgment for defendant, plaintiff appeals.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. H. A. Sharpe.</p>