Volume 179 — Alabama Reports

Heard before Hon. M. Sollie. Henry Gaston was convicted of murder and he appeals. The judgment entry is as follows: “The defendant, being present in open court in his own proper person and attended by his attorneys, and being arraigned, pleads not guilty. It is ordered that this cause be and it is set- for trial on Wednesday of the present week, on the 20th day of September, 1911.

<p> Murder. </p> <p>1. Homicide; Evidence; Motive. — In support of the state’s theory that robbery was the motive, evidence that decedent’s pockets were emptied when found, and that a dime was found on the ground, a foot or two from decedent’s body, and that defendant and decedent were playing cards for money at a party from which decedent was returnmg home when killed where decedent had won $2.50 from defendant was properly admitted.</p> <p>2. Same. — Where the prosecution was for a homicide committed about 1 a. m., while decedent was going home from a party which he and defendant had attended, it was competent to show that ■ a witness saw defendant as he passed witnesses’ house about daylight the morning after the murder at which time defendant said he was walking about and had been up all night raising sand.</p> <p>3. Evidence; Opinion Evidence. — A witness could properly testify that a wound on a person’s head “seemed to have been made with a blunt instrument.”</p> <p>4. Same; Hearsay. — Evidence as to what one, not a party or witness, said as he approached the place where a decedent’s body was, was hearsay and properly excluded.</p> <p>5. Same; Statement of Accused; Voluntary. — Where a statement made by defendant .was not a confession, it was not necessary that preliminary proof of its voluntary character should be made in order to render it admissible.</p>

<p> Murcler. </p> <p>1. Jury; Sumomning; Empaneling. — Where the defendant was indicted for murder, and on his arraignment, a day was fixed for his trial, and the judge made an order fixing 75 as the number of persons to constitute the venire for this trial, 34 of whom had been drawn and summoned as regular jurors for the week in which the ease was set for trial, and -in open eo/urt drew from the jury box the names of 49 persons to serve as special jurors, who together with the regular jurors should make the seventy-five persons ordered summoned, and it appeared that more than 34 had been drawn to serve as regular jurors for the week, but only 34 had been summoned, and the sheriff forthwith served upon defendant a list of all the names drawn and summoned for the week, and of the special jurors drawn for the trial, no such showing was made as would require the court to grant a motion to quash the venire'.</p> <p>2. Same; Challenge; Cause. — The court may on its own motion and against the objection of defendant excuse a .juror who stated on his voir dire examination that he had a fixed «¡pinion as to the guilt or innocence of defendant which would bias his verdict, which evidence would not remove.</p> <p>3. Same. — The state may challenge for cause any juror who has a fixed opinion as to capital punishment when trying a person indicted for a capital felony.</p> <p>4. Same. — In all prosecutions for felony, the state may challenge for cause any juror who is of the opinion that a conviction should not be had on circumstantial evidence.</p> <p>5. Same; Disqualification; Witness in Cause. — At the common law a juror was not disqualified because he was a witness in the case; while either party may challenge for cause, a juror who is a witness the trial court cannot on its own motion exclude him,'as the parties may waive such challenge.</p> <p>0. Same; Opinion. — The common law disqualifications of jurors go to their fitness to serve as such, and one having a fixed opinion as to a matter in issue is disqualified; and the court has an inherent power to excuse him regardless of the .wishes of the parties.</p> <p>7. Evidence; Admission. — Where the preliminary evidence showed that the statements made by defendant shortly after the homicide were freely and voluntarily made, such statements were properly received in evidence against him.</p> <p>8. Homicide; Threats; Admissibility. — Where a defendant admitted a homicide and relied on self-defense, evidence that he had threatened the life of decedent, probably a year before the homicide was admissible as illustrating the intent with which the killing was done.</p> <p>9. Same; Self-defense; Evidence. — Such evidence was also admissible on the issue as to who provoked or who was the aggressor in the difficulty resulting in the killing.</p> <p>10. Same. — Where the state showed that defendant knew before the killing that his father -on that day had had a difficulty with decedent, and had been arrested at the instigation of deceased, the defendant relying on self-defense, it was competent to introduce proof of the fact of the difficulty and of the arrest, without the particulars thereof, as bearing on the issues or motives, and as to who provoked the difficulty when the killing occurred.</p> <p>11.. Samo; Right to Invoice. — One must be free from all fault in provoking or bringing on the fatal encounter in order to invoke the right of self-defense.</p> <p>12. Same; Instructions. — Where there was evidence that defendant began shooting before decedent could draw his weapon, and that before decedent drew his weapon, defendant could have retreated without increasing his peril, a charge that if there was no reasonable ground of escape after decedent began shooting, without increasing defendant’s peril, defendant must be acquitted, was properly refused.</p> <p>13. Sonne. — Where there was evidence justifying the inference that defendant brought on the difficulty which resulted in decedent’s death, it was proper to refuse a charge that there was no evidence that defendant was at fault in bringing on the difficulty.</p> <p>14. Same. — The honest belief of the slayer, that his life is in danger at the hands of decedent, at the time of the homicide, must be that of a reasonable man; and the belief must be a reasonable and honest one.</p> <p>15. Same. — A charge that defendant was under no duty to retreat unless he could have done so without endangering his life or limb, was. properly refused.</p> <p>16. Same; Killing by Deadly Weapon; Burden of Proof. — Where the proof showed an intentional killing by defendant by the use of a deadly weapon, the defendant had the burden of proving a pressing necessity to take life, and that he could not safely retreat without apparently increasing his danger.</p> <p>17. Same; Degrees. — Where a defendant was convicted of murder in the second degree, the giving or refusing of instructions as to murder in the first degree is rendered harmless, and will not be considered on appeal.</p> <p>18. Charge of Court; Meaningless. — In a homicide case a charge which refers to the deceased as defendant, and defendant as plaintiff, is meaningless and properly refused.</p> <p>19. Same; Covered by Those Civen.\ — It is not error to refuse instructions which are but duplicates of written instructions given.</p> <p>20. Same; Assuming Facts. — A. charge which assumes as a fact matter as to which the evidence is in conflict, is properly refused.</p> <p>21. Same; Reasonable Doubt. — A charge asserting that the jury cannot find defendant guilty unless they believe him guilty beyond all reasonable supposition is properly refused.</p>

Heard before Hon. Henry B. Foster. Dick Parsons was convicted of murder and he appeals. Counsel discuss the errors assigned, but without citation of authority. The ruling on the demurrer to the plea is shown only by bill oí exceptions and cannot be reviewed. — Powell v. State, 89 Ala. 172; Peters v. State, 100 Ala. 10. The plea was lacking in two requirements. — Henry v. State, 33 AJa 338; Gross v. State, 117 Ala. 73; Hollis v. State, 123 Ala. 74; Blade v. State, 123 Ala. 78.

Heard before Hon. O J. Semmes. Mary E. Godau was convicted of murder and she appeals. The lower court erred in refusing to grant the application of the defendant for a change of venne in view of the testimony and the newspaper articles written at the time of the commission of the alleged offense and the court will review it here, without any presumptions favorable to the finding of the lower court.

. Appeal from Morgan Law & Equity Court. Heard before Hon. Thomas W. Wert.

Heard before Hon. W. W. Pearson. George Williams was convicted of violating the prohibition law and appealed to the Court of Appeals, ivho certified the constitutional question involved to the Supreme Court.

Heard before lion. Armstead Brown. C. L. McLendon ivas convicted of violating the revenue law imposing license tax upon those engaged in the practice of law and he appealed to the Court of appeals, Avho certifies the constitutional question involved, to this court.

¡Appeal from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Action by E. L. Martin, as administrator, against'S. M. Adler. Judgment for plaintiff, and defendant appeals. Plaintiff’s intestate, a man 29 years of age, was killed about 10 a. m. on May 7, 1910, on Twenty-First Street Bridge, in the city of Birmingham, by an automobile belonging to tbe defendant, and driven by defendant’s servant.

Heard before Hon. S. L. Brewer. Action by Georgia B. Finch as administratrix against the Central of Georgia Railway Company, for damages for the death of her intestate. Judgment for defendant in the trial court, which on motion of plaintiff was set aside and the cause restored to the docket and defendant appeals. The jury Avas right in its finding under the evidence, and the court was in error in setting aside the verdict.

Heard before Hon. Thowas W. Wert. Action by C. JB. Newsom, as administrator, against tbe Decatur Light, Power & Fuel Company. From a judgment for plaintiff, defendant appeals. The theory of both plaintiff and defendant sufficiently appears from the opinion.

Heard before Hon. E. C. Crowe. Action by W. D. Saxon, as administrator against tlie Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals. Count 3 is in subsequent negligence for a negligent failure of the servants of the defendant to use all means at their command to prevent the car from running against plaintiff’s intestate after becoming aware of his peril, when, by the use of such means, the accident might have been avoided.

Heard before Hon. D. W. Speaks. Action by W. F. Garth against the Nashville, Chattanooga & St. Louis Railway, for damage for injury to stock by frightening. Judgment for plaintiff and defendant appeals. Under the evidence the general charge for defendant might have been given. ' ■ — L. & N. v. Gentry, 103 Ala. 635; Wes. Ry. v. Lma/rus, 88 Ala. 453; Ghoate v. So. Ry., 119 Ala. 614; A. G. S. v. Roebuck, 76 Ala. 277.

Heard before Hon. J. C. B. Gwin. Action by Charlie -Cardwell against the Alabama Great Southern Railroad Company for damages sustained while in its employment. From judgment for plaintiff, defendant appeals. For original counts 1, 2, and 5, see former report of this case in 171 Ala. 274, 55 South. 185.

Heard before Hon. C. W. Ferguson. Action by Jim Hill, by next friend, against the De Soto Coal, Mining & Development Company for damages for injuries received. From judgment for plaintiff, defendant appeals.

Glair Circuit Court. Heard, before Hon. J. T. Blackwood. Action by Lee Scoggins, administrator, against tbe Atlantic & Gulf Portland Cement Company. From a judgment for defendant, plaintiff appeals.

Heard before Hon. H. A. Pearce. Action by Susie Kreamer, as administratrix, against the Jackson Lumber Company for damages for the death of her intestate, while in the employment of the defendant. There was judgment for plaintiff, which on motion was set aside and plaintiff appeals and submits on the merits and on a motion to establish a bill of exceptions.

Heard before Hon. Charles A. Senn. Action by Win. E. Weir, as administrator of the estate of Willie Price against the Sloss-Sheffield Steel & Iron Company for damages for the death of his intestate while a convict employee in the mines of the defendant. Judgment for plaintiff and defendant appeals. The court erred in overruling the demurrer as to the sixth count. — L. & N. R. R. Co. v. Holland, 164 Ala. 73; U. 8. etc. Co. v. Driver, 162 Ala. 588.

Heard before Hon. Jno. C. Pugh. Action by A. C. Morris as administrator of the estate of Henry Readus, deceased, against the Louisville & Nashville Railroad Company for damages for the death of said Readus while in its employment. Judgment for plaintiff and defendant appeals. The eighth count of the complaint was subject to the demurrer interposed.- — T. C. I. cG R. R. Co. v. Smith, 55 South. 170.

Heard before Hon. John Pelham. Action by James S. Glasgow against the Louisville & Nashville Railroad Company for injuries received while on the premises of defendant for the purpose of taking passage on its train. Judgment for plaintiff, and defendant appeals.

Heard before Hon. H. A. Sharpe. Action by Mrs. Alice G-lenn against the Birmingham Railway Light & Power Company for damage and injury suffered while a passenger. Judgment for plaintiff and defendant appeals. The first count of the complaint as originally filed was demurrable on the authority of Birmingham R. L. cC- P. Go. v. Weathers, 51 South. 303. The count was not cured by the amendment. The third count was also subject to the demurrer interposed. — W. U. Tel.

Heard, before Hon. E. C. Ckowe. Action by Sadie C. Barrett against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. John H. Disqtje. Action by S. E. Jordan against tbe Alabama City, Gadsden & Attalla Railway Company. Judgment for defendant, and plaintiff: appeals.

Heard before Hon. C. C. Nesmith. Action by W. H. Bason against the Alabama Great Southern Railroad for damages for being struck while crossing defendant’s railroad. Judgment for defendant, and plaintiff appeals.

Heard before Hon. W. W. Haralson. Action by Adelaide E. Stewart, as administratrix against tbe Southern Railway Company for damages for the death of her intestate by being run over by a train while lying down between the rails. Judgment for plaintiff and defendant appeals. The former opinions in this case will be found reported in 153 Ala. 133 and 164 Ala. 171. Under these authorities the general charge should have been given for the defendant.

<p> Injury to Person on Track. </p> <p>1. Railroads; Persons on Track; Issues and Evidence. — Under a count alleging that the enginemen had knowledge that intestate was on the track, but which fails to allege that it was their duty to keep a lookout, a prima facie ease in an action for death of a person on the track is not made out by the mere fact that the enginemen could see a long way on the track at the time and place in question.</p> <p>2. Same; Trespassers; Negligence. — A trespasser on a railroad track cannot recover for injuries caused by simple initial negligence.</p> <p>3. Same; Wanton Negligence. — The rule that it is wanton negligence to run trains at a dangerous rate of speed without warning or lookout at certain points where it is known that people are liable to frequent to the extent of making it consciously dangerous to disregard their safety is without application to a sparsely settled district.</p>

Heard before Hon. John H. Disque. Action by Leonie Bessierre, as administratrix, etc., against the Alabama City, Gadsden & Attalla Railway Company. Judgment for defendant, and plaintiff appeals.

Heard before Hon. Chas. E. Waller. Action by J. W. Collins, Jr., against the Southern Railway Company for damages to property by fire alleged to have been set out by a passing railway locomotive of the defendant. Judgment for plaintiff and defendant appeals.

Heard before Hon. Saffold Berney. Action by James W. Morgan against H. V. Bachelder. From a judgment for plaintiff, defendant appeals. The substance of the complaint sufficiently appears.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard, before Hon. .E. C. Crowe.</p> <p>Action by W. J. Carter against H. F. Yarbrough. Judgment for plaintiff, and defendant appeals.</p> <p>The first count of the complaint is that plaintiff claims of defendant the sum of $10,000 as damages for that on, to wit, the 27th day of September, 1911, the defendant wantonly or willfully injured plaintiff by causing an automobile to run over, upon, or against plaintiff, severely injuring him, and that as a proximate result of said injury he has suffered and will suffer, etc. The demurrers raise the proposition that the count fails to state a cause of action for wanton or willful injuries. The evidence tended to show that near the terminal station at Birmingham, on one of the streets, an automobile running between 25 and 40 miles an hour struck the plaintiff, throwing him up in the air, and rendering him unconscious, and partially running over him. It further appeared from the tendencies of the evidence that no signals were given of the approach of the automobile, and that it was being run by Otis Wheeler, who.was in the employ of Mr. Yarbrough, the defendant in this case, who was in the machine and who was the owner of the machine. The evidence for the defendant tended to show that the machine was not going more than 7 or 8 miles an hour, and that the plaintiff stepped out in front of it in close proximity to it, and was hit before the machine could be stopped.</p> <p>The court erred in overruling demurrers to count one. — Neyman v. A. G. 8. B. B. Go., 55 South. 509; B. B., L. & P. Go. v. Brown,, 150 Ala. 326; L. & N. B. B. Go. v. Mitchell, 134 Ala. 265. The defendant was' entitled to the affirmative charge. ■ — B. B., L. cG P. Go. v. Brown, supra. The court erred in permitting the introduction of the ordinance regulating the speed of automobiles as it was not shown that said ordinance was in force and effect at the time of the collision and courts do not judicially know when ordinances become operative. — 28 Cyc. 393; Adler v. Martin, 179 Ala. 97; Excelsior Steaon Laundry v. Lomax, 166 Ala. 612; E. C. M. & B. By. v. Flippo, 138 Ala. 387.</p> <p>Where the complaint is amended and demurrers were not refiled the court will not be put in error for its ruling thereon as to the original complaint. — B. R., L. & P. Go. v. Fox, 56 South. 1013; Central of Ga. Ry. Co. v. Ashley, 18 South. 981. The complaint was sufficient. — E. C. M. & B. v. Flippo, 138 Ala. 187; J ones v. Darden, 7 South. 923; Railroad Company v. Crenshaw, 65 Ala. 566. Where the evidence is in conflict as to material issues the affirmative charge cannot be properly given. — Garrett v. Fields, 131 Ala. 305. Where specific grounds of objection to the evidence are interposed the others are, waived and a reversal will not be had because the evidence was objectionable for any other reason than those specified. ■ — McDaniel v. State, 97 Ala. 611; Sterner v. Tranum, 98 Ala. 319; A. G. S. R. R. Co. v. Bailey,’112 Ala. 167. If otherwise relevant a municipal ordinance appearing in a book purporting to be a code of ordinances of the city, and certified under the hand of the clerk, is admissible. — Section 3989, Code 1907. The ordinance was therefore admissible.- — L. & N. R. R. Co. v. Webb, 98 Ala. 308; Ga. Pac. v. O’Shields, 8 South. 218. There was no prejudicial error in calling the defendant in for disturbing the proceedings of the court. — 38 Cyc. 1231-5.</p>

Circuit Court. Heard before Hon. E. C. Crowe. Action by Wm. M. Parker, as administrator, against Cunningham Wilson for damages for the death of his intestate caused by a collision with the plaintiff’s automobile while being driven by a son of defendant. Judgment for defendant and plaintiff appeals. The case of Stowe v. Morris, 144 S. W. 52, is an authority which this court should look to in reference to the pending case.

Heard before Hon. E. C. Crowe. Acton by Nannie C. Cockrum against tbe Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. The following are the counts discussed' in the complaint: (2) Wantonly or willfully or intentionally causing a wire to be heavily charged with electricity, with the knowledge that plaintiff would probably be injured thereby, and with reckless disregard of the consequences.

Heard before Hon. Bernard Harwood. Action by Maud Seay, as administratrix, against Eunice Lawrence and others. Judgment for plaintiff, and defendants appeal. Counts 1, 2, 3, 5, 8, 9, and A sufficiently appear in the opinion.

<p> Tresspass to Realty. </p> <p>1. Appeal and Error; Harmless Error; Pleading. — Where the court sustained demurrer to three counts of the complaint, all of which set up matters that were litigated under the two remaining counts of the complaint, the error, if any, was without injury.</p> <p>2'. Pleading; to the Merits. — A plea to the merits must either specifically deny the cause of action set up in the complaint, or must confess such cause and set up matter which will avoid it.</p> <p>3. Same; Essentials.- — A plea must state facts and not present a mere argument.</p> <p>4. Same; Sufficiency.- — Where a plea is filed to the whole of the complaint containing several counts, the plea is demurrable unless it is a sufficient answer to each count.</p> <p>5. Trespass; Evidence; Directing Verdict. — Where the evidence disclosed legal title and possession in the plaintiff at the time of the trespass, the defendant was not entitled to have the verdict directed for him in an action for damages for trespass in cutting and removing trees, although the evidence was conflicting as to whether plaintiffs bought the land with the knowledge that the timber had been sold to the defendant.</p> <p>6. Same. — Where the action was for damages for trespass for cutting trees and removing them, and there was evidence, that the land was only worth one-half as much after the trees were cut than before, the defendant was not entitled to have the verdict directed on the ground that the evidence of damage was too uncertain to sustain a verdict.</p> <p>7. Trover and Conversion; Directing Verdict. — Where the evidence showed that the defendant’s title to pine trees alleged to have been cut and removed from the land was superior in equity to that of the plaintiffs, but there was some evidence of the taking of trees other than pine trees, and it appeared that plaintiffs’ title to such other trees was better than that of defendant, defendant was not entitled to have the verdict directed.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. Chas. W. Ferguson.</p> <p>Action by William G. Mclntire against the Cudahy Packing Company. Judgment for defendant, and plaintiff appeals.</p> <p>The appeal is on the record, and the wrong sought to be set out in each count is substantially as follows: That the defendant was a wholesale dealer in meat; and had in its employment the plaintiff, William G. Mclntire. The defendant presented to Tanner Bros, a bill for meat, and a dispute arose between them as to the correctness of certain items. Tanner Bros, denying that it had received certain articles charged in the bill, and to prove that those articles were delivered to Tanner Bros., defendant is alleged to have forged the signature of the plaintiff, William G. Mclntire, to a receipt for the articles in dispute, ahd to have presented it to Tanner Bros.; it being alleged that neither Tanner Bros, nor the plaintiff ever received those articles set out in the receipt, and that this defendant knew it. The dray receipt Avas alleged to be in the following-words: “Birmingham, Ala., November 5, 1909. Tanner Brothers, received of Cudahy Packing Company (giving the names of the various places of business) sales ticket No. 701; Six D. P. Loins, $5.85; 1 D. Ribs, $5.25; 3 Livers, $1.21. Total $12.31. O. K. Me.” And it is alleged that the letters, “O. K. Me.,” were intended to mean that the goods mentioned in said dray ticket were received by this plaintiff. And it is alleged that defendant maliciously and falsely charged plaintiff with embezzlement by speaking of and concerning him, in the presence of divers persons, in substance as follows : Mclntire received and receipted for the goods mentioned in the dray receipt or writing. The demurrers raise the point that no libelous matter is contained in the receipt, and that the count fails to state a cause of action. Certain other counts charge the statement above set out to have been made by the agents, servants, or employees of the defendant, and the demurrers raise the point that no ratification is shown, and that the matters spoken of were not libelous or slanderous per se, and that no innuendo is alleged showing how they could be slanderous. The demurrers were sustained, and plaintiff appeals.</p> <p>The appeal is on the record and the errors assigned are the sustaining of demurrers to the counts of the complaint. As to the definition of a libel see Iron Age Publishing Go. v. Grucluj), 85 Ala. 519, 25 Cyc. 245; Smith Bros. v. Agee, in MS. Two considerations arise then, first, did any of the counts show a libel of the plaintiff in his trade, folloAved by special damages? The following authorities answer the question in the affirmative. — 25 Cyc. 326: 13 Ency. of P. P. 38; 3 Bing. 104; 102 Mich. 189. Whatever conclusion the court may reach as to whether the counts make a case for libel of the plaintiff in his trades, the complaint clearly makes out a case for libel of plaintiff as an individual. — Robinson v. Drummond, 24 Ala. 171; Smith, v. Gafford, 31 Ala. 41; 25 Cyc. 440. A demurrer will only be sustained when the court is of the opinion that the publication is incapable of any reasonable construction which will render the words defamatory. — Iron Age Pub. Go. v. Grudup, supra; Trimble v. Anderson, 79 Ala. 514. Written words which charge dishonesty or fraud will support an action for libel although not importing the commission of a crime —~Wafford v. Meeks, 129 Ala. 249; Ivey v. Pioneer Savings Go., 113 Ala. 249. An application of these principles to the counts in question will show ■that the counts added by way of amendment state a cause of action.</p> <p>Corporations cannot commit libel, except by their agents, and then only where they specifically authorize it or approve or ratify it. — Singer Mfg. Go. v. Taylor, 150 Ala. 574. This eliminates counts 1, 3, 4, 5, 6, 7, and 8, and leaves only the second and ninth count to be considered. The published matter in this case was not libelous per se and special damages resulting to plaintiff must appear. — Gaither v. Advertiser Go., 102 Ala. 415; L. B. Pub. Go. v. Galliher, 153 Ala. 364; Johnson v. Turner, 159 Ala. 356; Ferdon v. Dickens, 161 Ala. 181; T. G. I. & B. B. Go. v. Kelly, 163 Ala. 348; Same Gase, 165 Ala. 378.</p>

<p> Injury in Mine. </p> <p>1. Appeal and Error; Harmless Error; Pleading. — Where no proof was offered to sustain pleas of contributory negligence the plaintiff was not injured by the overruling of demurrers to such pleas.</p> <p>2. Mines and Minerals; Statutory Regulations; Compliance; Evidence. — Where the action was by a coal mining contractor for injury caused by a rock falling from the entry roof his evidence examined and held to show that the defendant supplied the mine with sufficient props as required by law and that hence plaintiff was not entitled to recover under his complaint.</p>

<p> Damages for Creating Nuisance. </p> <p>1. Nuisance; Action hy Private Person; Peculiar Damage. — An allegation that the death of plaintiff’s son was caused by an issuance of foul, unwholesome and noxious air from a pond or lake which defendant constructed, shows damage to the plaintiff from the issue of such airs, which is peculiar to him, not only in kind, but in degree.</p> <p>2. Same; Interest; Who May Sue; Parent and Ohild. — A child residing with his father has the same right of protection against nuisances in the neighborhood, which are so noxious and long continued as to materially affect his health, as the father, notwithstanding he has no legal title in the soil; and he, or his personal representative, in case of death, can bring an action*on the case for damages, since in such an action all that is necessary is to have a lawful habitation in the neighborhood.</p>

Birmingham City Court. Heard before Hon. Chas. W. Ferguson. Action by Frank Girardino against the Birmingbam Southern Railroad Company for damages for setting fire to and destroying the building belonging to plaintiff. Judgment for the defendant and the court having refused to set the same, aside plaintiff appeals.

Heard before Hon. John H. Disqtje. Action by W. P. Sbanan against A. Brown and others for damages for changing the flow of waters. From a judgment for defendants, plaintiff appeals.

Heard before Hon. E. J. Garrett. Action by J. H. Watts against tbe Atlanta, Birmingham & Atlantic Railroad Company and others for damages for tbe improper construction of a culvert. Judgment for defendants, and plaintiff appeals. Tbe original count does not appear in tbe record.

Heard before Hon. W. W. Pearson. Assumpsit by T. H. Mabson against the G-riel Bros Company. Judgment for plaintiff, and defendant appeals. The action was based upon eight promissory notes for the sum of $300 each, together with attorney’s fees, given as rent notes for a certain part of the Windsor Hotel and fixtures therein, to be used for a barroom, and for no other purpose.

Heard before Hon. Hugh D. Meeeill. Action by Nellie M. Thomason against the Pittsburg Life & Trust Company on a policy on the life of her father, B. P. Thomason, payable to plaintiff as beneficiary. Defendant answered that C. H. Young, as trustee in bankruptcy of the estate of the insured, claimed the money which defendant paid into court, and Young was brought in, and under an issue made by the court propounded his claim to the money.

Heard before Hon. W. W. Pearson. Action by Mary E. Brooks against Greil Bros. Company for money bad and received. Judgment for defendant and plaintiff appeals. Under tbe facts in this case tbe action for money bad and received will lie as tbe possession was not adverse to tbe true owner. —Price v. Pickett, 21 Ala. 741; 27 Cyc. 865. No estoppel is shown on tbe part of Mrs. Brooks to maintain this action. — 21 Cyc. 1240; First Nat.

Heard before Hon. -Wm. M. Walker. Action by the Hopkinsville Milling Company against J. C. B. Gwin and others, as partners doing business under the firm name and style of the Bessemer Grocery Company,- for breach of contract. Judgment for defendants, and plaintiff appeals. The following is a copy of the contract: “No.-. Date, 8/26/10.

Heard before Hon. C. P. Almon. Assumpsit by I. E. Alexander against the Alabama Western Railroad Company. Judgment for defendant and plaintiff appeals.

Heard before Hou. S. L. Brewer. Action by the Alexander City Bank aganst J. P. Bat-son, doing busness as the Bank of Rockford. Prom a judgment for plaintiff, defendant appeals. Plaintiff’s case, as presented by count Al and A2 of the complaint as amended, is as follows: On February 4, 1910, plaintiff made a loan of $1,200 to one Ellis, receiving from him as security a chattel mortgage on six mules, together with other property.

Heard before Hon. Wm. M. Walker. Assumpsit by J. R. Jarrell against the Birmingham Waterworks Company. Judgment for defendant, and complainant appeals.

Heard before Hon. B. M. Miller. Action by Otto Wolf against the Planters’ & Merchants’ Bank, in which W. S. Loval, as trustee in bankruptcy of Knight, Yancey & Co., was made a party defendant. From the judgment, the trustee appeals.

Heard before Hon. Lum Duke. Action by Annie L. Hudmon against Isham K. Dorsey, as executor of the estate of B. J. Thornton, deceased, upon a promissory note. Judgment for plaintiff and defendant appeals. Counsel insist that the instrument sued on was either a testamentary instrument or promise to make a future gift which was void, or that it was a promissory note void for uncertainty as to time of payment, but they cite no authority to support their contentions.

Heard before Hon. Saffold Berney. Action by W. B. Patterson against the Union Naval Stores Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. O. J. Semmes. Assumpsit by the Pierson Lumber Company against George F. Craig & Company. Judgment for plaintiff' and defendant appeals. The suit was instituted and served February 19, 1907. Plea 7 was filed February 18, 1911.

Heard before Hou. Samuel B. Browne. Action by Howard C. Rusb against Glenn E. Aunspaugh. Judgment for defendant, and plaintiff appeals.

Heard before Hon. H. A. Pearce. Assumpsit by Elmore, Quillian & Company against the Henderson-Mizell Mercantile Company. Judgment for defendant and plaintiff appeals. The replication filed to the plea of ultra vires was entirely sufficient as an answer and the proceedings in the bankrupt court allowing plaintiff’s claim was conclusive. — MóDougal v. Rutherford, 30 Ala. 253; Clendenning v. First Rational Bank, 11 Amer. Bk.

Heard before Hon. E. C. Crowe. Assumpsit by Robert A. Tunstall against Louis V. Clark for breach of covenant of warranty. Judgment for plaintiff and defendant appeals. The burden was upon plaintiff to prove an eviction, either actual or constructive, under a lawful and paramount title. — 1 Cyc. 1125; 26 S. W. 1048; 15 S. E. 10; 63 Md. 129.

<p> Ejectment. </p> <p>1. Execution; Bona Fide Purchaser; Uwecorded Deed; Burden of Proof. — Under section 3383, Oode 1907, it is incumbent upon party holding under an unrecorded deed to show notice in order to defeat ejectment by the purchaser at execution sale against his grantor.</p> <p>2. Same; Possession. — It requires an actual change of possession, as distinguished from a constructive one, to charge a purchaser under execution sale with notice of an unrecorded deed, under section 3383, Oode 1907, it not being enough that the tenant in possession agreed to hold for his landlord’s grantee.</p> <p>3. Deed; Passing Title; Delivery. — Title does not pass under a deed until it is delivered, no matter when signed and acknowledged.</p>

Heard before Hon. B. M. Miller. Ejectment by M. M. Head against J. W. Hunnicutt. Judgment for plaintiff, and defendant appeals. See, also, 172 Ala. 18, 55 South. 161.

Heard before Hon. D. W. Speaks. Ejectment by the Crawford Mercantile Company against James Anderton and others. There was judgment for the plaintiff, which on motion of the defendant was set aside and a new trial ordered and plaintiff appeals. The doctrine of equitable estoppel is without application in an ejectment suit which must be determined on the legal title. — Nevill v. Ghesshwe, 163 Ala. 390; Milan v. Crowley, 144 Ala. 547; Maxwell v. Grace, 85 Ala. 578.

Heard before Hon. J. W. Mabry. Ejectment by Martha Stokes and others against E. C. Jones. Judgment for plaintiff and defendant appeals. It is a well settled doctrine that it is only where the real property does not exceed in area and in value the statutory exemption that an order under section 2562, Code 1896, is authorized. — Jemes v. Clark, 89 Ala. 606; Wilkins v. Walker, 115 Ala. 590; Chamhlee v. Cole, 128 Ala. 649; Drake v. Betoell, 145 Ala. 581.

Heard, before Hon. Edward J. Gilder. Ejectment by H. A. Feibelman, against Dina Wallace and others. Judgment for plaintiff and defendant appeals. The voluntary assent of the wife and her signature to the conveyance of the homestead to her is not an essential under our constitution and statutes, — Turner v. Bernheimer, 95 Ala. 244; section 2058, Code 1896; section 205 Constitution 1901; Thompson on Homestead, section 474; 28 Wise. 85.

Heard before Hon. Henry B. Foster. Ejectment by J. J. Williams against W. W. Lawrence. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. E. Gamble. Ejectment by E. N. Amos against J. A. Givens and others. Judgment for defendants, and plaintiff appeals. The facts are: That Peter Gray was the owner of 120 acres of land described in the complaint, and that in December, 1905, he executed, with his wife,' a mortgage thereon to Joseph H. Givens & Co. This mortgage was filed November 16, 1909.

Heard before Hon. Tuos. W. Wert. Unlawful detainer by Nancy. E. Nichols against Jessie Allen and others.' The court ordered the substitution of R. B. Nichols as landlord, and from a judgment for defendant, plaintiff appeals.

Heard before Hon. Ti-ios. W. Wert. Action by Shelley Harris against Flora Hill. From a judgment for plaintiff, defendant appeals.

Heard before Hon. E. C. Crowe. Petition for mandamus, filed by Bailey & Howard ' as trustees, against the Alabama State Tax Commission, and the individual members thereof, to prohibit them from increasing taxes. From a judgment granting the writ, the Commission appeals.

Appear from Cullman Circuit Court. Heard before Hon. D. W. Speake. Petition for mandamus by S. J. Griffin against O. S. Roden, to compel Roden to pay to Mm certain fees earned in the prosecution of criminal cases in the county court of Cullman county. From a judgment granting the writ the defendant appeals.

Original petition in the Supreme Court. Mandamus by the state on the relation of the attorney general to compel the annuli ng of an order quashing a writ of seizure and restore the order directing the issuance and execution of a writ of seizure, directed to the judge of the Morgan Law & Equity Court.

Original Petition in Supreme Court. Petition by R. D. Whitehead for mandamus directed to the Honorable A. H. Benners to compel him to vacate and avoid a decree granting temporary alimony and for other relief. Section 3803, Code 1907, makes alimony payable as a matter of right and payable out of the estate only of the husband.

Heard before Hon. Saeeold Berney. Petition for mandamus by the State on the relation of Milton C. Skinner against tte Excise Commission of Citronelle to be permitted to inspect certain records. From a decree granting the writ respondents appeal. The court erred in over-ruling demurrers to the petition. Smith & Parks Bills.

Heard before Hon. D. W. Speaks. Petition by T. F. Almon and others against the Court of Revenues of Lawrence county to prohibit the County Court of Revenue from ordering an election, and from appointing officers to hold such election in said county, and to revoke and set aside an order calling said election to determine whether or not stock should be allowed to run at large in said county. Petition denied, and petitioners appeal.

Appear from Macon Probate Court. Heard before Hon. M. B. Abercrombie. Petition by Anderson Dawkins to probate the will of Martha Dawkins, deceased. Contest by James W. Dawkins and others. Prom a decree for contestants, proponent appeals.

Heard before Hon. J. P. Stiles. Contest between Carrie A. Tuggle and Irene Wilson as to the division of the estate of Harry Wilson, deceased. From a judgment decreeing the estate to Irene Wilson Carrie Tuggle appeals. If Lillian Wilson was the wife of Harry Wilson, then Carrie Tuggle as the sole legatee named in her will is entitled to receive the estate. — Section 3763, Code 1907.