Volume 181 — Alabama Reports

Heard before Hon. Charles E. Waller. Sharp Aaron was convicted of murder in the first degree, ivas sentenced to death, and he appeals. Affirmed.

Morris Livingston was convicted, of homicide, and on appeal to the Court of Appeals, the judgment of the trial court was reversed. Whereupon the State applies for a writ of certiorari to review the opinion rendered by the Court of Appeals, and reported in .the case of Livingston v. State, 7 Ala. App. 43; 61 South. 54. Writ awarded, and the judgment of the Court of Appeals reversed and the cause remanded.

Heard before Hon. M. Frank Cahalan. Arthur Jones was convicted of murder and he appeals. The indictment should have been quashed on motion of defendant.— Acts 1909, p. 305. The defendant ivas arraigned, before one of the judges of the Criminal Court, and tried and sentenced by another judge of such court at the same term, each of whom were acting separately, and operates as a discontinuance.

<p> Murder. </p> <p>1. Homicide Evidence; Jury Question. — Where the evidence was conflicting as to whether the killing was a continuance of an earlier difficulty, or a separate transaction, that question was properly submitted to the jury, for if the earlier quarrel was a part of the main transaction all the circumstances surrounding it were admissible, and if not, then only the fact of the difficulty was admissible, and not the details.</p> <p>2. Evidence; Declaration of Accused. — Evidence of declarations in his own hehalf made by one accused of homicide is not admissible, unless of the res gestee of the transaction.</p>

Heard before Hon. Lum Duke. Bartow Reid was convicted of murder, and he appeals. The folloAving charges were refused to defendant: “(2) The defendant has proven Avithout conflict in this case a good character.

Heard before Hon. Thomas W. Coleman, Jr. Erwin Pope ivas convicted of murder in tbe first degree, and he appeals. The court was in error in admitting the testimony that the John Body mule could not have made tracks similar to those found leading from the scene of the killing to the home of Erwin Pope. — Pope v. State, 57 South. 45, and authorities there cited.

Heard before Hon. Armstead Brown. Arnold Gilmer, alias, etc., was- convicted of murder and he appeals. The court was in error in permitting testimony of the dying declarations as the deceased merely said “if she was not going to get well, she desired to tell about the shooting.” — Sims v. State, 139 Ala. 74; Pulliam v. State, 88 Ala. 3; 5 Mayf. 302. The court was in error in permitting the confessions alleged to have been made to the police officer.

Heard before Hon. Armstead Brown. Yank Beasley was indicted for the murder of Epliriam White, convicted, and sentenced to be hanged, and he appeals.

Heard before Hon. John T. Lackland. Henry Sanders was convicted of murder in tbe first degree, and be appeals. Tbe bill of exceptions shows that several witnesses who bad been summoned for the defendant were not present, and, in' fact, only one witness was present; and it was stated by counsel for defendant that tbe witness present was a character witness, and knew nothing of tbe facts of tbe case.

Heard before Hon. M. Frank Cahalan. William Watson was convicted of murder in tbe first degree and he appeals.

Heard before Hon. Armstead Brown. John Adams was convicted of murder in the first degree and he appeals.

Heard before Hon. Armstead Brown. Walter Jones was convicted of murder in tbe first degree, and lie appeals. The indictment charges the killing of S. Rowan, in the usual form, for murder in the first degree. The demurrers raise the questions that Rowan’s true name is “Sloan Rowan,” and is not set out.

<p>Appeal from Houston Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Zach Bishop ivas convicted of murder in the first degree, and he appeals.</p>

Heard before Hon. Charles E. Waller. Tom Simon, alias, was convicted of murder in the first degree, and he appeals. The court erred in not vigorously applying its repressive powers to prevent such departure from legitimate argument as that indulged by the the solicitor in this case. — Tannehill v. State, 159 Ala. 52; James v. State,-170 Ala. 74; B. R., L. é P. Go. v. Drennen, 57 South. 881; Florence G. & I. Go. v. Fields, 104 Ala. 471.

Petition by Morris Livingston for certiorari to Court of Appeals, to review the decision of that court, affirming the decision of the lower court in accordance with the decision of this court made in Ex parte State, infra, 61 South. 53.

Petition by M. E. Woodward for certiorari to tbe Court of Appeals to review tbe decision of that court, affirming tbe decision of tbe trial court in tbe case of Woodioard v. State, 5 Ala. App. 202; 59 South. 688. Section 4, Acts 1909, p. 63, is violative of tbe Fourteenth Amendment of tbe Constitution of tbe United States, and of section 6, Constitution 1901. — Bailey v. State, 31 Sup. Ct. 145.

Heard before Hon. A. H. Benners. Bill by S. M. Freeman against J. D. Hamner, Sr., and others, to declare certain deeds void, for an accounting, and to declare a lien in favor of complainant upon certain property. Decree for complainant, and respondent named appeals.

<p> Bill to Annul a Mortgage as Security for Husband’s Debt. </p> <p>1. Fraudulent Conveyances; Evidence; Sufficiency. — Where the respondent filed a cross bill to cancel a deed from respondent’s debtor to the debtor’s wife, which deed conveyed a certain lot as a gift, in answer to a bill by the wife to declare a mortgage on said lot void as security for the husband’s debt, the evidence was sufficient to sustain the finding that prior to the conveyance by the debtor to his wife he had agreed to give the creditor a mortgage on the lot for money advanced by the firm composed of the debtor and creditor, to enable the debtor to build a house on said lot.</p> <p>2. Same; Pleading; Vuriance. — Where there was no variance between the allegations of the cross bill, and the evidence on the controlling issue as to whether a deed from the debtor to his wife was fraudulent, the fact that there were variances between the pleadings and proof as to other distinct equities in the case, could not have the effect to deprive the creditor of the right to a cancellation of the deed.</p> <p>3. Frauds; Statute; Executory Agreement. — The statute does not apply to executed contracts, and hence, a mortgage executed pursuant to a prior parol agreement to answer for the debt of another is not void under the' statute of frauds.</p>

Heard before Hon. A. H. Benners. Bill by E. J. Smyer against the Birmingham Railway Light & Power Company to enjoin the laying of double tracks in a certain street in the city of Birmingham, and for other relief. From the decree rendered, respondent appeals, and complainant takes a cross appeal. The word injured as used in section 235, Constitution 1901, includes only the violation of a right, or damages for the violation of a legal right. —-88 Am. St. Rep. 895; 40 Am.

Heard before Hon. E. S. Lyman. Bill by Lula C. Borum against Douglas W. Kidd and others to quiet title. From a decree for complainant, defendants appeal. The agreed statement of facts is as follows: “That John W. Kidd died in Shelby county, Ala., in 1865 Anno Domino, being at the time of Ms death a resident thereof. That he was at the time of his death the owner in fee of the lands described in the second paragraph of the amendment to the bill.

Heard before Hon. William H. Simpson. Bill by Lillian P. Danley against Rufus Peerson and another, to rescind and cancel a conveyance for fraud, to remove a trusteeship, to cancel and annul a written agreement, and to have the lands restored to the real trustee. From a decree overruling demurrers to the bill, respondents appeal. The bill is multifarious. — Eotoard v. Corey, 126 Ala. 283. The bill improperly joins parties respondent. — O’Bear J. Co. v. Volfer, 106 Ala. 205.

Heard before Hon. J. J. Curtis. Bill by Jane Felkins against John H. Lovell, praying a decree to enforce a trust in the lands and in the notes and mortgages given to secure deferred payments, for an accounting, and for general relief. From a decree overruling demurrers to tbe bill, respondent appeals. Tbe bill did not sufficiently allege tbe fact constituting tbe fraud. — Bell v. Sou. IT. B. & L. Go., 140 Ala. 377; Scholze v. Steiner, 100 Ala. 152.

<p> Bill to Reform Instrument, and for Specific Performance. </p> <p>1. Husband and Wife; Conveyance by Wife; Joinder. — Under section 2707, Code 1876, a married woman could not convey her property without the husband joining therein, even though the husband was out of the state or had abandoned her, unless she had become a feme sole under the provisions of sections 2723, 2834, Code 1876.</p> <p>2. Specific Performance; Deed by Wife. — Where the deed would be void because the husband did not join under section 2707, Code 1876, specific performance of the delivery of a deed by a married woman will not be granted.</p> <p>3. Reformation of Instruments; Validity After Reformation. — A deed by a married woman will not be reformed as to the grantee named therein where, after reformation the deed would be void, because of the failure of the husband to join therein as required by section 2707, Code 1876.</p>

<p>Appeal from Clay County Court.</p> <p>Heard before Hon. E. J. Garrison.</p> <p>Bill by C. H. Galliland and others, against J. F. Williams and others, to be subrogated to rights under a mortgage, and for cancellation. From a decree sustaining demurrers to the bill, complainants appeal.</p> <p>In filing the bill in this cause complainants pursued the only remedy they had. — Half mam v. Ellison, 51 Ala. 543. The vendee is entitled in equity to subrogation. —4 Mayf. 868. The conveyance is void because made with intent to hinder or delay. — Sec. 4293, Code 1907, and authorities cited.</p> <p>The mortgage was properly recorded where the property was located and constituted constructive notice to all the world until the expiration of three, months after the removal of the property to another county. — Williams v. Vining, 43 South. 744; sec. 999, Code 1896. The hill failing to show that complainants purchased the property after the expiration of three months from its removal, and also failing to show that the mortgage was not recorded in the county to which the property was removed, the presumption will he indulged that they had constructive notice of the mortgage, and having committed a wrong by the conversion of the property, were not entitled to subrogation. — Starkes v. Bernheim, 102 Ala. 466; 3 Ala. 352; 27 A. & E. Enc. of Law, 202. The bill was multifarious. — Green, et al. v. Wright, et al., 49 South. 320; Henry v. Tenn. L. S. Go., 50 South. 1029. Nolan elected to sue Gilliland when he could have sued both Galliland and Williams, and Galliland cannot no w be subrogated to Nolan’s right to bring trover against Williams, since it has been waived. — Vandiver v. Poliak, 107 Ála. 551; Smith v. Gayle, 58 Ala. 600.</p>

Heard before Hon. L. D. Gardner. Bill by G. M. Gachet against A. M. Morton to specifically perform a contract for the sale of lands. Decree for respondent and complainant appeals. Having failed to plead the statute of frauds, the chancellor ought not to have considered the statute in determining whether complainant was entitled to relief . — Shakespeare v. Alba, 76 Ala. 351; Phillips v. Adams, 93 Ala. 450; Strouse v. Filing, 110 Ala. 132; Marsh v. Frick, 1 Ala. App. 649.

Heard before Hon. Thomas H. Smith. Bill by the Realty Investment Company against the city of Mobile to perpetually restrain and enjoin the city from issuing or selling certain bonds. Prom a decree sustaining demurrers to the bill defendant appeals. The ballot used did not conform to the requirements of section 222, Constitution 1901, and hence, the election was of no avail, and the bond issue should be enjoined. — Coleman v. Town of Eutcrn, 157 Ala. 827.

Heard before Hon. Ti-iomas H. Smith. Hill by Ellen Quinn against the Dixie Grain Company and others for injunction to restrain the maintenance of a turpentine orchard upon. certain lands, and to redeem. Decree for complainant, and respondents appeal. The bill of complaint shows the following material facts: The complainant was and is owner and in possession of certain land, known as the Quinn plantation, on the Bigbee river.

Heard before Hon. L. D. Gardner. Bill by Nettie Clements and others against T. S. Faulk & Co., and others for the sale of land for parti; tion. From a decree denying relief because the court was uncertain as to its power to order the sale, complainants appeal. This is a friendly suit for partition, and relief was denied because the chancellor doubted his power to make the sale.

Heard before Hon. W. W. Whiteside. Rill by R. F. East against I. N. Nolen to declare a deed a mortgage, for an accounting and a cancellation on payment of the amount found due, and to call in and cancel a deed from Dmnmway to Nolen, and require Nolen to execute a deed conveying the land to orator. Decree for complainant, and respondent appeals.

Heard before Hon. W. W. Whiteside. Bill by George Heard against Heard & Lee for reference to ascertain who has paid and how much has been paid by the respondents or either of them as purchase money, and to ascertain the. amount of indebtedness between said parties, and to declare an assignment a mortgage. From a decree for complainant, respondents appeal.

Heard before Hon. W. W. Pearson. Bill by James M. Sorrell against A. C. Cruise and others, to set aside a conveyance because made with the intent to hinder, delay and defraud creditors. Decree for complainant and respondent appeals. The court erred in overruling the 7th, 8th, 9th and 10th grounds of demurrer. — Tutwiler v. Building & L. Assn., 127 Ala. 103; Barrett v. Century Co., 130 Ala. 298; Flewellen v. Crane, 58 Ala. 627; Bell v. So. H. B. & L. Assn., 37 South. 230.

Heard before Hon. W. W. Wi-iiteside. Bill by Lula Esco and others against Emmett L. Thornton, to enforce vendor’s lien. From a decree for complainants respondents appeal. Under the circumstances of this case, the burden was on the complainant to prove by clear and satisfactory evidence the existence of a debt from their vendee. — Adams v. Adams, 127 Ala. 518; Í4 Ene. of Evid. 135. There was a variance . between tbe allegations and the proof. — Kyle v. Bellinger, 79 Ala. 516.

Heard before Hon. William H. Simpson. Bill by Della Watkins against J. L. Hollis, and another, for partition. From a decree overruling demurrers to the bill, respondents appeal. The bill shows that two of the respondents own a life estate in an undivided one-third and a one-half interest in the land sought to be divided. This was pointed out by demurrer, and the demurrers should have been sustained. — Wilkinson v. Stewart, 74 Ala. 198.

Appear from Henry Chancery Court. Heard before. Hon. L. D. Gardner. Hill by the Stegall-Cheairs Fertilizer Company against the Bethune Male Company and others for an accounting and to declare a lien upon the proceeds of certain guano. Decree for respondents, and complainant appeals. Exhibit C is as follows: “Abbeville, Ala., Dec. 27, 1910.

<p> Creditors Bill. </p> <p>1. Fraudulent Conveyance; Grounds; Want of Consideration. — A conveyance by an insolvent debtor to his wife on a simulated consideration is voluntary and void as against existing creditors, whether mala fide or not.</p> <p>2. Same.- — Inadequacy of price alone may constitute fraud when so gross as to shock the conscience.</p> <p>3. Same; Bill; Sufficiency. — A bill by-existing creditors alleging that while insolvent respondent conveyed to his wife for a simulated or fictitious consideration, real estate of a value greatly in excess of the consideration expressed, leaving practically no property in respondent out of which complainant’s indebtedness could be satisfied and that the wife accepted the conveyance to hinder and defraud complainants, as to whom it was fraudulent and void, and that such a conveyance constituted a preference, and was a general assignment of defendant’s property, was open to the demurrer to so much of the bill as charged fraud mala fide, but was good as against the other demurrers.</p>

Heard before Hon. Thomas H. Smith. Bill by O. W. Presnall against D. R. Burgess & Company, and the individuals composing the firm, for an accounting and to restrain the foreclosure of certain mortgages. Decree for respondents and complainant appeals. The mortgage exhibit 0 provided that it was to secure this note, and any other amount owed in 1899, and is broad enough to cover every character of indebtedness accruing that year. — (Jollier v. White, 97 Ala. 615.

Heard before Hon. H. A. Sharpe. Bill by Margaret H. Spink against the Guarantee Bank & Trust Company to declare -a deed void and remove it as a cloud upon title. Decree for respondent, and complainant appeals. The facts of the case seem to be that appellant, with her husband, on the 7th day of April, 1910, executed an instrument, purporting to be an absolute conveyance, conveying to appellee an absolute title in the property of appellant described in said conveyance.

Heard before Hon. A. H. Benners. Bill by Annie Vandegrift and another, against W. W. Shortridge to quiet title to land. From a decree for respondents complainants appeal. Appellant was not required to have title by possession, but merely actual, peaceable possession. — Ne%o-■ell v. Manley, 173 Ala. 205.

Heard before Hon. A. H. Benners. Bill by W. L. Smith against H. B. Morris and others, to enjoin continuous trespass to realty. Decree for respondents and complainant appeals.

Heard before Hon. W. W. Whiteside. Bill by the Sturdivant Bank, a partnership, against C. A. Farrow, to require defendant to surrender and deliver up a contract, to cancel the same, and to enjoin defendant from prosecuting his suit in the circuit court of Tallapoosa county, on said contract, and for general relief. From a decree overruling demurrers to the bill, respondent appeals.

Heard before Hon. W. H. Simpson. Bill by R. A. Gaines against W. M. Hanvey to fix and enforce a vendor’s lien. From a decree overruling demurrers to the bill respondents appeal. The bill was subject to the demurrer interposed, and the court erred in overruling it. — Suddeth v. Knight, 14 South. 475, and authorities cited.

Heard before Hon. Saffold Bernex. Bill by Mary J. Martinez and others against Elizabeth D. Meyers and others to correct a guardianship settlement on the ground of fraud. From a decree sustaining demurrer to part of the bill, complainants appeal.

Heard before Hon. A. H. Benners. Bill by A. B. Cromartie against the Southern States Fire & Casualty Insurance Company, to rescind for fraud the contract for sale of certain shares of stock in said corporation. Decree for complainant and respondents appeal. Representations which are mere matters of opinion are not such fraudulent representations as'constitute a defense to an action on subscription. — Story’s Eq., sec. 199; Thompson on Corp., sec. 722.

Heard before Hon. Saffold Berney. Bill by William H. Roper against the Union Baptist Church of Mobile, and others, to foreclose an unrecorded mortgage alleged to have been destroyed by fire. Decree for complainant and respondents appeal. Reversed and rendered. .

Heard before Hon. L. D. Gardner. Bill by R. E. Bell against Gus Shiver and others to declare a deed a mortgage, for an accounting, and to redeem. Decree ■ .for respondents, and complainant appeals.

Heard before Hon. A. H. Benners. Bill by J. L. Pippen against Allen Harris and others, doing business as the Camel Bottling Works, seeking to restrain an infringement of complainant’s trade mark and trade name, and from molesting and injuring complainant’s business by unfair and fraudulent trade competition. Prom a decree dismissing the bill complainant appeals.

Heard before Hon. Thomas H. Smith. Bill by Wade H. Orr against the Board of Commissioners of the City of Mobile and the City Health Officers to enjoin the enforcement of an ordinance requiring the paving of certain stables and connection thereof with the city sewerage system, and to declare the ordinance invalid as unreasonable. From a decree granting a preliminary injunction, respondent appeal.

Heard before Hon. Henry B. Poster. Bill by L. H. Dearman against G. W. Phalin, for an accounting. From a decree overruling demurrers to the bill respondents appeal. Counsel discuss the bill and insist that it was subject to the demurrers interposed, but they cite no authority in support of their contention.

Heard before Hon. C. J. Torrey, Special Judge. Bill by W. T. Harrison by next friend against C. F. Carter, for an accounting, to hold Carter as trustee for Harrison, and to satisfy certain mortgages. Decree for respondent and complainant appeals. No brief reached the Reporter. The burden was on complainant to sustain the averments of his bill, and his failure to do so authorized a dismissal of the bill whether it contained equity or not.

Heard before Hon. W. H. Simpson. Petition by R. C. P> rick ell, as Attorney General, against the First State Bank of Bridgeport, J. W. Gay, receiver. Prom a decree allowing a certain sum for the receiver’s services, W. W. Metcalf, an intervening creditor, appeals.

<p> Bill for Partition. </p> <p>1. Partition; Disputed Title; Jurisdiction of Equity. — In an action for partition, equity.lms jurisdiction to determine the controverted question of title raised by the answer (section 5232, Code 1907).</p> <p>2. Descent and Distribution; Widow’s Share. — Upon a decedent’s death, leaving no minor children, and leaving land of less value than $2,000. and less than 160 acres in area, the al solute fee in such land passed to his widow, notwithstanding there has been no proceeding setting such lands apart to her as her homestead exemption.</p>

Heard before Hon. Thomas H. Smith. Bill by D. H. Stewart against James A. Mackintosh, and Others,-to abate the purchase price of land, and to enjoin a bank from paying certain notes until the matter of the purchase price is determined. Prom a decree overruling demurrers to the bill respondents appeal.

Heard before Hon. Thomas H. Smith. Bill by T. T. Daughdrill as executor, etc., against J. E. Lockhart to enforce a vendor’s lien. Decree for respondent and complainant appeals. The admissions of the answer would be considered by the court without any formal offer by complainant. — McGhee v. Lehman, 65 Ala. 316; Thorington v. Gity Council, 88 Ala. 551.

Heard, before Hon. J. J. Cuktis. Bill by the Empire Land. Company against J. S. Moore and others, to qniet title to land, and for other relief. From a decree for complainants, respondents appeal. Objections for misjoinder may be made at the hearing, 'or by the court ex mero mota on error. — Langley v. Andrews, 132 Ala. 147; Gar-wile v. Grump, 165 Ala. 206; 57 Ala. 28. As a rule the record must show a responsible interest in every respondent. — 16 Ene.

Heard before Hon. W. W. Whiteside. Bill by Allen Robinson against Anthony Vizard to quiet title to timber interest in land. Decree for complainant, and respondent appeals.

Adpeal from Autauga Chancery Court. Heard before Hon. W. W. Wi-iiteside. Bill by Mary E. Nelson and others against W. W. Wadsworth and others to declare a deed a mortgage, and to redeem. Decree for respondents, and complainants appeals. The substance.of the bill will be found set otit in the former report of this case in 171 Ala. -603, 55 South. 120. The account referred to in the opinion is as follows : J. H. Nelson to W. W. Wadsworth, Ur. 1895.

Heard before Hon. L. D. Gardner. Bill by A. E. Walker, as Superintendent of Banks, against tbe Montgomery Bank & Trust Company to collect and preserve tbe assets of tbe Bank of Geneva, of which he had taken charge by virtue of his office. From a decree overruling demurrers to the bill, respondent appeals.

Heard before Hon. Saffold Berney. Bill by the State, on the relation of W. R. RoAve and others, against Frank L. Allen and others for writ of injunction and a seizure against the sale of intoxicating liquors in the town of Citronelle. From a decree for relators, respondents appeal.

Chancery Court. Heard before Hon. L. D. Gardner. Bill for interpleader by the First National Bank of Dothan against the Enterprise Lumber Company and others. From a decree granting the relief prayed for, the respondent Enterprise Lumber Company appeals. The following are the exhibits to the bill of complaint : Exhibit A. “State of Alabama, Houston County.

Heard'before Hon. W. W. Whiteside. Bill by Gillie D. Ashurst against Harry G. Ashurst and others for removal of an estate from the probate to the chancery court, to construe a will and for instructions to the executor. Decree for complainant, and respondents appeal. The will of J. V. Ashurt, executed January 3, 1903, is as follows: “Item 1.

City Conrt. Heard before Hon. Thomas W. Coleman, Jr. Action by Era Gray against Ed. J. Webb for damages for libel and slander. Judgment for plaintiff, and' defendant appeals.

Heard before Hon. O. W. Ferguson. Action by C. D. Ebersole against A. E. Fields for slander of title. Judgment for defendant on demurrer, and plaintiff appeals.

Heard before Hon. William M. Walker. Action by Rosa Beyer, by her next friend, against Lizzie N. McLaughlin. Judgment for plaintiff, and defendant appeals from the judgment, and also from orders refusing to amend and to set aside the judgment.

Heard before Hon. John C. Pugh. Action by W. M. Parsons against tbe Age-Herald Publishing Company for damages for libel and slander. Judgment for defendant, and plaintiff appeals. The charges referred to are as follows: (1) Affirmative charge not to find for defendant on special plea 4. (2) Same as to special plea 5.' (3) Same as to special plea 6.

Heard before Hon. H. A. Pearce. Action by William J. Hanchey against John F. Brunson for malicious prosecution. Judgment for defendant, and plaintiff appeals. The court erred in imposing costs as a condition precedent to allowing the amendments offered. — Jicmchey v. Branson, 56 South. 971; Sec. 5367, Code 1907.

Heard before Hon. John C. Pugh. Action by Jim Booze against the Jebeles & Colias Confectionery Company, for damages for assault and battery. Judgment for plaintiff, and defendant appeals.

Heard before Hon. E. C. Crowe. Action by Sam Passafume against the Republic Iron & Steel Company for damages for assault and battery. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. C. W. Ferguson.</p> <p>Action by George Lynch, by next friend, against the Empire Improvement Company, for damages for assault and battery. Judgment for plaintiff and defendants appeal.</p> <p>The-court was in error in sustaining demurrer to plea 4 as an answ;er to counts 7 and 8. The court was also in error in its rulings on the evidence, and in refusing the charges requested by defendant, and in giving the charges requested by plaintiff.— Peters v. So. Ry.; 135 Ala. 537; White & Go. v. Farris, 124 Ala. 470.</p> <p>If there was error in sustaining demurrer to plea 4 it was rendered harmless as similar pleas were left in the record on which the same defenses might be made. — 58 South. 1047. Besides the plea shows no manner of justification for the assault. — B’ham R. <£ B. Co. v. Baird, 130 Ala. 349. It does not matter whether the assaulted person is a passenger or not.— Mitchell v. Q-mnbill, 140 Ala. 546. But he was a passenger and entitled to the highest degree of care.— Treadwell v. Whittier, 5 L. R. A. 502. The control of the cross examination rests largely in the discretion of the court. — 8 Ene. P. & P. 109. The question called for a conclusion of the witness. — C. of Ca. v. Clements, 57 South. 53. There was no dispute as to the assault, and the only question as to the amount of damages, and as none of the charges given or refused affected that question, they were refused without error.</p>

Heard before Hon. C. W. Ferguson. Action by Belton W. Coleman against the Birmingham Railway, Light & Power Company for assault and battery. Judgment for plaintiff, and defendant appeals.

Petition by the Southern Railway Company for certiorari to the Court of Appeals to review its judgment affirming the judgment -of the trial court, reported as So. By. v. Cobb, 6 Ala. App. 459; 60 South. 426, where the charge complained of may be found set out. The appellate, court was in error in holding that charge A misplaced the burden of proof, and should have held that the charge asserted a correct proposition of law. — So. By.

Heard before Hon. J. C. B. Gwin. Action by Lucinda Nicholas against the Birmingham Railway, Light & Power Company for damages for personal injury. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. J. Curtis. Action by J. R. Wilcox against the Birmingham Railway, Light & Power Company for damages for injury to his wife while a passenger. Judgment for plaintiff, and defendant appeals.

Heard before Hon. H. A. Sharpe. Action by Joe Goldstein against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals. The facts and pleading are sufficiently set out in the opinion.

Heard before Hon. A. H. Alston. Action by Alice D. Mayo against tbe Birmingham Railway, Light & Power Company for damages to her as a passenger. Judgment for plaintiff, and defendant appeals. Tbe portions of the oral charge excepted to are as follows: “Now, let’s see what the plaintiff has to do to make out a case. Plaintiff must reasonably satisfy you from the evidence in this case that on June 2, 1911, she was a passenger on defendant’s car.

Heard before Hon. Samuel B. Browne. Action by Emily C. Lyon against Homer K. Williams in trespass and as a penalty for cutting trees. Judgment for plaintiff, and defendant appeals.

Heard before Hon. M. Sollie. Action for slander and libel by L. W. Phillips against Caldwell Bradshaw. Judgment for defendant and plaintiff appeals.

Heard before Hon. A. O. Lane. Action by Joe Maxie by next friend, against the SlossSheffield Steel & Iron Company, for damages for injuries as a servant or employee. Judgment for defendant and plaintiff appeals. Counsel insists that the court was in error in sustaining demurrers to count 4. — Sec. 1035, Code 1907. The court was also in error in directing a verdict for defendant on the theory of a variance. — 161 Pa. 386; 1 Leb. M. & S. sec. 291; 32 Am. Rep. 413; 57 Am.

Heard before Hon. Charles A. Senn. Action by William C. Owen against tbe Alabama Great Southern Railway Company, for damages suffered while in its employ. Judgment for defendant, and plaintiff appeals. While in the service of the defendant company as a boiler maker, plaintiff Was injured by having his gloved hand caught in a drilling machine, which was at the time being used by himself and under his exclusive control.

Heard before Hon. W. W.' Pearson. Action by J. E. Day against the Twinn Tree.Lumber Company, for damages suffered while in its employment. The demurrers for indefiniteness should have been sustained as the complaint failed to show how the alleged negligence operated to the injury of plaintiff.— McGhee v. Reynolds, 129 Ala. 540.

Heard before Hon. E. C. Crowe. Action by Mrs. M. C. Jordan against the Drennen Company, for damages received by the falling of calcimine and glass upon her from the interior of defendant’s store. Judgment for plaintiff and defendant appeals. Counts 1 and 5 were subject to the demurrer interposed. — St. L. & S. F. R. R. Co. v. Sutton, 55 South. 989.

Heard before Hon. A. O. Lane. Action by G. B. Mitchell against the Sloss-Sheffield Steel & Iron Company for damages for causing the waters of a branch to overflow and damage his land and buildings during the flood season. Judgment for plaintiff in the sum of $400, from which defendant appeals.

Heard before Hon. J. J. Curtis. Action by R. M. Morgan against the Sloss-Sheffield Steel & Iron Company for damages to land by the deposit of debris thereon. Judgment for plaintiff and defendant appeals. Defendant’s ' special plea 6 was good, and demurrers were improperly sustained thereto. — Shahan v. A. G. S., 115 Ala. 181; Sloss-S. S. & I. Go. v. Dorman, 159 Ala. 321.

Heard before Hon. H. A. Pearce. Action by C. M. Mauldin against tbe Central of Georgia Railway Company for damages for maintaining a public nuisance in tbe erection and maintenance of a bridge across a navigable stream. Judgment for defendant and plaintiff appeals. Tbe obstruction was prima facie a nuisance. — Walker v. Allen, 72 Ala. 456; 12 Fla. 328; 73 Ga. 306; 7 111. App. 599; 43 Me. 198/; 9 N. J. E. 754; 38 Barb. 286; 60 N. Y. 510; 23 Wis. 410; 4 Ind. 36.

Heard before Hon. Bernard Harwood. Ejectment by Mary Lowery against John L. Bowles. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear from the opinion.

Heard before Hon. C. C. Nesmith. Ejectment by William M. Martin against J. M. Howard. Judgment for defendant and plaintiff appeals. The court was in error in sustaining demurrers to the pleas. — ■ Rayburn v. Elrod, 43 Ala. 700; Sims v. Thompson, 30 Ala. 158; 15 Cyc. 98.

Heard, before Hon. John C. Pugh. Common-law ejectment by William Arnett against the Birmingham Coal & Iron Company. Prom a judgment for plaintiff, defendant appeals. The special finding of facts, to summarize, is that the plaintiff and his brother were the heirs at law of John W. Arnett, deceased, and that they are the sole heirs.

Heard before Hon. Bernard Harwood. Ejectment by J. O. Prude, Jr., against W. M. Cannon. Judgment for plaintiff and defendant appeals.

Heard before Hon. W. W. Pearson. Ejectment by W. A. Saffold against A. S. Noble and others. Judgment for plaintiff and defendant appeals. Saffold could not claim adverse possession under color of title to three and two-tenth acres east of the tract conveyed by his deed when his deed conveyed only thirty acres. — Bromberg v. Yonkers, 108 Ala. 578; Carlin v. Wilson, 58 South. 417.

Heard before Hon. C. C. Nesmith. Mandamus by the State on the relation of Carter R. Bibb, and others, against the town of Warrior, and the municipal council to compel said council to elect a marshal or other police officer for said municipality. Judgment denying relief and relators appeal. The charter of the town of Warrior makes it the duty of the town council to provide for appointment or election of a marshal, or other police officer. — Sec. 4, Acts 1898-9, p. 724.

Heard before Hon. C. C. Nesmith. Quo warranto by the State, on relation of Horace C. Wilkinson and others, against A. O. Lane, to oust defendant, as Commissioner of the City of Birmingham, from office on the ground that at the time of his appointment he was serving under an election as Judge of the Circuit Court of Jefferson County. From an order overruling demurrers to the answer and denying the writ, relators appeal.

Heard before Hon. Samuel B. Browne. Proceedings by tbe state on the relation of M. B. Blisb against C. W. Thomas and others, in the nature of quo warranto to inquire into respondent’s right to hold office. There was judgment sustaining demurrer to the petition, and relator appeals. The petition is filed under section 5453, Code 1907, and authorizes the action here attempted.

<p>Appeal from Washington Circuit Court.</p> <p>Heard before Hon. Samuel B. Browne.</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. E. C. Crowe.</p>