Volume 183 — Alabama Reports

Fletcher Tennison was convicted of murder, and he appeals. Ora Slaton in testifying stated, in response to the question by the solicitor if she had heard a conversation between her husband and defendant in reference to his going out of the state and leaving and not appearing here before the grand jury about Mr. Tennison, said: “I heard Arthur ask Fletcher just about a week before the killing to buy his crop; that he didn’t want to appear against him in the court, and…

Tom McOllister, alias, etc., was convicted of murder and he appeals. The case was submitted on motion to strike the bill of exceptions, and on the merits. The motion to strike the bill of exceptions should be sustained. The judgment of the court was rendered on October 19, 1912, and the bill of exceptions presented to the trial judge on January 18, 1913, ninety-one days after the judgment. — Code, section 3019; McLeod v. Flournoy, 3 Ala.

Jay Smith ivas convicted of first degree murder, and appeals. The defendant was indicted and tried for killing one Will A. Patterson with a pistol.

Carson Robinson was convicted of manslaughter in the first degree, and on appeal to the Court of Appeals, the cause was remanded to the lower court for resentence, but in other respects affirmed, as will appear by reference to Robinson v. State, 6 Ala. App. 13; 60 South. 558. He petitions the Supreme Court to review said judgment of the Court of Appeals.

Circuit Court. r Jesse J. Edgar ivas convicted of murder in the second degree, and he appeals. The provisions of section 32, Acts 1909, p. 305, are mandatory, and the court was in error in not requiring the name of the juror Bruton to be placed on the venire from which the jury was to be selected. — Shepherd v. Stade, 5 Ala. App. 178. The court was in error id refusing to quash the venire. — Acts 1909, p. 305.

Joseph McGay was convicted of murder and he appeals. for the State. The bill of exceptions should be stricken because not filed until 91 days after judgment was entered —McOlUster v. State, infra. There is no error apparent of record, and the cause should be affirmed.

Bart Roberson was convicted of homicide and he appeals. For former appeals in this case see Roberson v. State, 175 Ala. 15, 57 South. 829; s. c. 5 Ala. App. 45, 59 South. 321. The court erred in not summoning a special venire, and in not serving a copy on the defendant. — MoStoean v. State, 57 South. 732; Jaolcson v. State, 55 South. 118; Ilaisten v. State, 59 South. 361; Kirby v. State, 59 South. 374.

<p> Murder. </p> <p>1- Evidence; At Former Trial; Absent Witness. — Inability to find a witness and produce him at the trial is a sufficient predicate for the admission of his testimony given at a former trial, although it is not affirmatively shown that he is dead, insane or out of the jurisdiction of the court.</p> <p>2. Same. — The predicate examined and held sufficient to show that a witness could not be found by the exercise of due diligence and hence, sufficient as a predicate for the introduction of his evidence, given on a formel trial.</p> <p>3. Same. — Where there is no evidence that the witness ever resided or remained in any other county than that of the county of the trial, and that a subpoena to any other county would procure his attendance, due diligence does not require the issuance of subpoenas to other counties.</p> <p>(McClellan and Somerville, JJ., dissent.)</p>

Wiley Goforth was convicted of murder, and he appeals. The letter referred to in the opinion was dated Birmingham, Ala., August 22, 1911, addressed to Mrs. Zella Cohelia, Altoona, Ala. Dear Friend: I am somewhat surprised at not seeing or hearing from you. I think it is time for you to get busy. You know I have told you how to do. What do you know, anything of value? Listen, keep me posted about everything, and when you are in Birmingham, be sure and come around and see me.

Tom Hays was convicted of murder and he appeals. The affidayit signed by deceased charging defendant with the violation of the prohibition law was admissible to show motive in view of the evidence of threats made by defendant. — Overstreet v. State, 46 Ala. 30; Marler v. State, 67 Ala. 55; Duncan v. State, 88 Ala. 31; Tate v. State, 94 Ala. 14.

<p> Murder. </p> <p>Trial; Objection to Evidence; Time. — Where the question gave notice of the anticipated answer, and defendant permitted the question to be asked and answered without objection, his motion to exclude the evidence came too late, and was properly overruled.</p>

Jackson Johnson was convicted of murder in the first degree, and he appeals. The indictment was demurrable for failure to sufficiently describe the instrument by which the killing was accomplished.— Williams v. State, 130 Ala. 31.

Luther Johnson was convicted of murder. The conviction having been affirmed by the Court of Appeals (8 Ala. App. If, 62 South. f50), he brings certiorari.

Robert H. Bozeman was convicted of violating the Motor Vehicle Law, and appealed to the Court of Appeals, where the judgment of conviction was affirmed, and he seeks to review snch judgment by certiorari. The act under consideration is violative of section 221, Constitution 1901. — City of B’ham. v. So. Ex. Co., 161 Ala. 533; Little v. Foster, 130 Ala. 163; Ex parte Mayor, etc., 78 Ala. 23; Lehman v. Robinson, 59 Ala. 211; State ex rel.

<p>Certiorari to Court of Appeals.</p> <p>J. J. Smith was convicted of treating diseases without having obtained the certificate required by section 1627, Code 1907, and he appeals to the Court of Appeals, which court affirmed the judgment of the lower court, and he brings certiorari to review such judgment.</p> <p>The agreed statement of facts will be found in the opinion in the case of Smith v. State, 8 Ala. App. 352. The prosecution was begun by affidavit and warrant, in the language of form 84, section 7161, Code 1907.</p> <p>Counsel begin by quoting froih Matthew, 9th chapter, verses 20 to 22, Acts, chapter 14, verses 8 to 10, inclusive, and 1 Cor. chapter 12, and assert that the Legislature cannot directly or indirectly interfere with, limit control prohibit or confine to a certain class of citizens the right to exercise God-given skill or science of healing disease, and they cite 187 TJ. S. 9; 135 Fed. 1. It is insisted, therefore, that the statutes under consideration are unconstitutional and void, citing Bragg v. State, 134 Ala. 164; 36 Cyc. 1131; 67 L. R. A. 903; 89 Psalm 30, 82; City Gotoneil of Montgomery v. West, 42 South. 1000.</p> <p>The writ should be denied on the authority of Smith v. State, 8 Ala. App. 52, and authorities there cited.</p>

Action by Peter Shereda against the Warrior-Pratt Coal Company, for damages for injury while in its employment. Judgment for plaintiff, and defendant appeals.

Action by Ernest Adams against the Corona Coal & Iron Company for damages for injuries suffered while in its employment. Judgment for defendant and plaintiff appeals. The court erred in sustaining demurrer to count 13. — Tutwiler G. & G. Go. v. Farington, 144 Ala. 165. Pleas 5, 6, 7, and 9 were fatally defective. — Osborn v. Ala. 8. & W. Go., 135 Ala. 573; M. & B. B. B. Go. v. Harbin, 84 Ala. 183; H. A. & B. R. R. Oo. v. Walker, 91 Ala. 435.

Action by John Landrum against the American Cast Iron Pipe Company for damages for injuries received while in its employment. Judgment for plaintiff and defendant appeals. Counsel discuss errors assigned relative to the pleadings and to the admission and rejection of evidence, and insist that prejudicial error had been committed.

Action by Joseph E. Williams against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals.

• Action by Canty Chambers against, the Central of Georgia Railway Company for damages for personal injuries. Judgment for the plaintiff, and defendant appeals.

Action by W. C. Brewer against the Louisville & Nashville Railroad Company, for damages for failure to deliver freight. Judgment for plaintiff, and defendant appeals.

Action by Nancy R. Fosbee against tbe Western Railway of Alabama. From a judgment for plaintiff, defendant appeals.

Action by Mrs. Bennie Mae Carlisle against the Central of Georgia Bailway Company, for damages for injury to her while a passenger. Judgment for defendant and plaintiff appeals. Contributory negligence must be specially pleaded. — A. O. 8. v. McWhorter, 156 Ala. 269.

Action by Nannie Cornelius against the Louisville & Nashville Railroad Company, for damages for being carried beyond her destination while a passenger on one of defendant’s trains. Judgment for plaintiff and defendant appeals. The court should have sustained demurrer to count 3. — Bir. Ü. Ry. v. Smith, 90 Ala. 50; B. & A. Ry. Go. v. Norris, 59 South. 63.

Action by Phillip Murphy against W. K. McAdory, and his official bond as sheriff, for damages for assault and battery and false impi’isonment. Judgment for defendants and plaintiff appeals. The gravamen of the action is the false imprisonment of plaintiff by defendant McAdory acting in his official capacity as sheriff of Jefferson county.

Action by Mrs. H. Y. Middleton against tbe Western Union Telegraph Company, for damages for delay in delivering telegram.’ Judgment for defendant, and plaintiff appeals.

Action by Minnie M. Godwin against the Louisville & Nashville Railroad Company for injuries sustained by plaintiff while a passenger. From a judgment setting aside a judgment for defendant, it appeals.

Action by C. T. McGraw against the Western Railway of Alabama for injuries sustained while a passenger. Judgment for palintiff and defendant appeals. The complaint was demurrable as it averred a conclusion and stated no facts from which negligence could be inferred. — M. T. L. Go. v. Burns, 165 Ala. 242; Pa. Gas. Go. v. Perdue, 164 Ala. 508; B. R. L. & P. Go. v. Weathers, 164 'Ala. 23; Meyer v. Bladk, 139 Ala. 174.

Action by Carrie Waldrop against the Nashville, Chattanooga & St. Louis Railway. From a judgment for defendant on demurrer to the complaint, plaintiff appeals.

Action by Mrs. Bora Crosby against the Nashville, Chattanooga & St. Louis Railway for damages for injuries to her while a passenger. Judgment for plaintiff, and defendant appeals.

Action by- S. M. Hanby against the Southern Railway Company for damages for injuries from an assault while a passenger. Judgment for plaintiff, and defendant appeals.

Action by Mrs. Laura B. Robinson against the Alabama Great Southern Railroad Company for damage for injury to her while a passenger. Judgment for plaintiff, and defendant appeals.

Action by Mrs. Mary H. Gonzalez against the Birmingham Railway, Light & Power Company, for damages for injuries received while a passenger. Judgment for plaintiff and defendant appeals. The court erred in overruling demurrers to the first count of complaint. — B. R. L. cG P. Co. vJt Parker, 156 Ala. 251; Same v. Weathers, 51 South. 303; Mobile L. cG P. (7o. v. Bell, 153 Ala. 90.

Action by J. T. Elliott against the Cahaba Coal Company, for injuries, while in its employment. Judgment for plaintiff, and defendant appeals.

Action by W. A. Marbut against the Woodward Iron Company for damages for injury sustained while in its employment. Judgment for plaintiff and defendant appeals. The complaint in so far as the count based on the negligence of the superintendent is concerned was insufficient, and demurrers should have been sustained thereto. — Maddox v. OMlton W. & M. Go., 171 Ala. 216; Whitmore v. Ala.

Action by W. P. Webster against the Sloss-Sheffield Steel & Iron Company for damages for injuries received while in its employment. Judgment for plaintiff, and defendant appeals. The judgment was rendered December 11, 1912. The appeal bond was filed January 30, 1913. The bill of exceptions was presented on March 10, 1913, and filed with the clerk, March 11, 1913, and the cause was filed in this court April 21, 1913.

Action by Frederick Watson against the Caldwell-Watson Foundry & Machine Company, for damages for injury received while in its employment. Judgment for plaintiff, and defendant appeals. The facts of the case sufficiently appear from the opinion.

Action by Homer Stewart against the Nashville, Chattanooga & St. Louis Railway for damages. From a judgment for defendant on demurrers, plaintiff appeals. The original complaint contained three counts. Plaintiff’s case against defendant was founded upon the following facts: Plaintiff was locomotive engineer in the service of the Southern Railway Company on its main line between Tuscumbia, Alabama., and points in Tennessee beyond Stevenson, Ala.

<p> Injury to Person on Track. </p> <p>1. Railroads; Persons on Trade,; Injury; Complaint; Wantonness. — ■ A complaint which alleges generally that the servants oí a railroad company wantonly or intentionally ran an engine over plaintiff’s intestate, sufficiently charges a wanton killing.</p> <p>2. Sa/me. — An averment in a complaint that the servants of defendant wantonly propelled the engine which ran down and killed plaintiff’s intestate while crossing the track, at a high rate of speed, without any signal of its approach along the street where people in great numbers crossed and recrossed the track, and that as a proximate result of these acts, intestate was killed, sufficiently charges a wanton killing.</p> <p>3. Same; Knowledge of Danger. — Where the servants of defendant had operated a switch engine for more than a month at the point where intestate was killed, they were charged with knowledge of the conditions there, and that a great number of people constantly passed and repassed along or across the track.</p> <p>4. Same; Instructions. — A charge asserting that if the servants of defendant railroad company in charge of a switch engine backed the same at a high rate of speed along the street without light or signals, and it was known to such servants that people crossed the tracks in large numbers, then their conduct was wanton, and defendant is liable, regardless of whether intestate stops to look and listen, was an invasion of the province of the jury.</p> <p>5. Same. — A charge asserting that if the agent in charge of the engine was guilty of wanton negligence, then the failure of intestate to stop, look and listen would not defeat a recovery, and that the running of the train at a high rate of speed in a populous district without signals, where the public are expected to pass and repass with frequency, creates an imputation of reckless negligence was not erroneously given.</p>

Action by T. A. Johnson against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals.

Action by Bryant Harris, pro ami, against the Sheffield Company for damages for personal injury, caused by a collision. Judgment for plaintiff and defendant appeals. The court erred in overruling demurrers to counts 1 and 4, and in refusing to give the general charge. — Rogers v. Brooks, 99'Ala. 31; Patrick v. deBardelaben, 90 Ala. 13; Pulliam v. Schimpf, 109 Ala. 182.

Action by Beatrice Ely against Birmingham Railway, Light & Power Company, for damages for injury alleged to have been sustained in a collision between a street car of defendant and an automobile in which plaintiff was riding. Judgment for plaintiff and defendant appeals.

Action by Lntber Turney against the Louisville & Nashville Railroad Company for damages for injury while crossing the defendant’s railroad track. From a judgment for plaintiff, and from tbe denial of its motion for new trial, defendant appeals. Plaintiff was injured by defendant’s passenger train near its station in tbe town of Falkville. This station, with the main track and two sidings, was located in the midst of the town, and within a few feet of a street crossing.

<p>' Appeal from. Franklin Circuit Court.</p> <p>Action by Kate Wilson and another against the the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiffs, and defendant appeals.</p> <p>The complaint alleges in effect that plaintiffs were in possession of and owned certain lands which are described, and that at the time of the injuries complained of the defendant owned and controlled or had possession of certain lands near to plaintiff’s land but above plaintiff’s land, which were lower and subservient, and that prior to the injuries complained of defendant had constructed a large and high dam across a stream running through the lands of both plaintiff and defendant, and that said dam had collected a large body of water which was held by said dam until on or about April, when said dam broke, and the water flowed upon and over plaintiff’s land, washing away the soil of a large area of plaintiff’s farm, which plaintiff alleges was fertile and productive until it was washed away, but that now it is permanently injured and damaged by reason of the said dam breaking and washing the same away.</p> <p>The court erred in overruling demurrers to the complaint. —Ala. C. G. & I. Go. v. Turner, 145 Ala. 639. Plea 2 sets np a proper defense, and the court erred in striking it from the file. — Potoell v. Gratoford, 110 Ala. 300; Stuart v. Hargrove, 23 Ala. 249. As to the general rule of holding that defendant would not be liable unless his negligence in construction or maintenance was the proximate cause of the injury, and that he would not be liable where the break was caused by an unprecedented rainfall, see. — So. Ry- v. Plott, 131 Ala. 312; Shahan v. A. G. $.,115 Ala. 181; s. c. 116 Ala. 302; Gent. Ry. v. Windham, 126 Ala. 552; Goosa River S. Go. v. Barclay, 30 Ala. 120; Smith v. Western Ry., 11 L. R. A. 619; 40 Cyc. 575-6; 13 Enc. of Law 1st Ed. 697; Gulf R. G. Go. v. Walker, 132 Ala. 553.</p> <p>Defendant’s demurrers to plaintiff’s complaint should have been overruled, and the defendant’s special plea was correctly stricken. The issue was not one of negligence, but did defendant build a dam that broke, and was plaintiff’s injured thereby. — Alabama Western R. R. Go. v. Wilson, 55 South. 932; Southern Ry. Go. v. Lewis, 165 Ala. 555; Central 'of Ga. R. R. Go. v. Wind-ham, 126 Ala. 560; Savannah, Amer. & Montgomery Ry. Co. v. Buford, 106 Ala. 303; Sloss-Shefield Steel é Iron Go. v. Mitchell, 161 Ala. 278; Crabtree v. Baker, 75 Ala. 91.</p>

Action by M. B. Travis against tbe Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. The substance of count 1 sufficiently appears.

Action by Grace Diehl, a minor, by her next friend, against the Glover Creamery Company for personal injuries. Judgment for the plaintiff in the sum of $3,500, and defendant appeals.

Action by E. T. Jones against Morris Adler and others for damages for maintaining a nuisance. Judgment for defendants, and plaintiff appeals. The pleadings and facts sufficiently appear.

Court of Appeals. Certiorari by the Birmingham Realty Company to review the opinion in the Court of Appeals in the case of .the Birmingham Realty Company against R. E. Thomason (8 Ala. App. 535, 63 South. 65). The Court of Appeals affirmed the judgment of the trial court in this case, and the appellant seeks by writ of certiorari to review that decision.

The Jackson Lumber Company brought its action against the Western Union Telegraph Company, for damages for a mistake in the delivery of a message, and judgment having been rendered for defendant, plaintiff appealed to the Court of Appeals Avhere the judgment of the trial court was reversed and remanded. The defendant seeks by certiorari to- review the judgment of the Court of Appeals (7 Ala. App. 644; 62 South. 266).

Shelby Circuit Court. Action by Laura Dunlap against the Western Union Telegraph Company for damages for delay in delivery of telegram. Judgment for plaintiff in the sum of $700, and defendant appeals. Counsel discuss the action of the court on the pleading, and in the refusal of charges requested,' citing authorities in support of their contention, but in view of the opinion it is not deemed necessary to here set them out.

Action by Lula W. Boteler against the Western Union Telegraph Company for delay in delivery of a message on which special delivery charges had been paid. Judgment for plaintiff and defendant appeals. So far as the question of technical liability is concerned, this case cannot be distinguished on the facts from the cases of W. U. T. Go. v. Brown, 59 South. 329; Same v. Adams, 154 Ala. 657.

Action by Fannie Hayes and others against the Southern Bailway Company for trespass quare clausum fregit. From a judgment for plaintiffs, defendant appeals.

Action by W. L. Smith against the Southern Iron & Steel Company, for trespass to realty. Judgment for defendant and plaintiff appeáls. Corporations are responsible civilly for the authorized acts of their agents or servant, or when they ratify the same. — So. G. cG F. Go. v. Adams, 131 Ala. 158.

Action by G. T. Duke aaginst the Interstate Lumber Company. From a Judgment for plaintiff, defendant appeals.

Bill by E. L. Bickley against Arthur Hays. Prom a decree sustaining demurrers to the bill complainant appeals. Counsel discuss the questions raised by the demurrer to the bill with citation of authority in support of his contentions, but in view of the opinion, it is not deemed necessary to here set them out.

Bill by Hugh K. Hale against the Tennessee Coal, Iron & Railroad Company to guiet title to certain lands. Decree for respondent and complainant appeals. Under the evidence, appellant had so used the land as to have acquired title thereto by adverse possession, and the court erred in the judgment rendered. — Goodson v. Brothers, 111 Ala. 589; Brand v. U. S. Goa- Go., 128 Ala. 579; Oioen v. Moxen, 52 South. 527; 1 Cyc. 983, et seq, and cases cited; 157 Ala. 23.

Bill by Ethel R. Barnes against J. S. Tilley and others to remove administration from the probate to the chancery court and to construe the will of Justice M. Barnes, deceased. From a decree of removal and construing the will, the guardian ad litem of the minors appeal. Codicil No. 2 is as follows: “Codicil No. 1 is by Codicil No. 2 made null and void.

<p> Bill to Enforce Vendors Lien. </p> <p>1. Witnesses; Competency; Payment. — Where the suit was by au administratrix to enforce a vendor’s lien alleged to have been held by her intestate neither the administratrix nor the purchaser is competent under the statute to testify to transactions with or statements by such intestate regarding payments claimed to have been made by the purchaser.</p> <p>2. Payment; Application; Priority. — Where a purchaser of land owed the vendor two unsecured debts which matured prior to the note for the balance of the purchase price of the land, payments made by him to decedent will be applied by the law first to the older debts, in the absence of any competent evidence to show that such payments were applied by the parties to any specific debt.</p> <p>3. Vendor and Purchaser; Vendor’s Lien; Payment. — The evidence examined and held not sufficient to show that the purchaser made a certain payment to the vendor in his lifetime which the purchaser claimed to have made.</p>

Bill hy the Bemington TypeAvriter Company ¿gainst F. W. Hall and others, to enjoin them from selling or procuring for sale of a certain typeAvriter for the satisfaction of a judgment of said Hall against a foreign corporation, and for a decree for sale of same for the satisfaction of the claim and demand of complainant against one Gulley. Decree for respondent and complainant’s appeal. The demurrer was not well taken. — Reid v. Sprague, 34 Ala. 101; 4 Cyc. 596, 570.

Bill by Judy Burkhalter and others against A. E. Bell, to declare a deed void and for removal as cloud on title. For a further statement of the bill see Bell v. Burkhalter, 176 Ala. 62; 57 South. 460. From a decree for complainant, respondent appeals. The bill contained a blank and the motion to strike should have been granted. — Buie 10, Oh. Ct. Pr.

Bill by the Southern Railway Company against the City of Decatur to enjoin the enforcement of a municipal ordinance to enforce the sale of a portion of the right of way. From a decree overruling demurrers to the bill respondents appeal. Under the allegations of the bill the assessment sought was of a benefit to the abutting property regardless of what its uses may be. — Ala. B. B. Go. v. Barbour, 197 U. S. 434.

Bill by Mary L. Nye against Carrie L. Moss and others for sale of lands for partition. Decree for complainant, and respondents appeal. The case made by the bill is that complainants and respondents are interested in a certain tract of land, their various interests being set out, and that said land cannot be partitioned or divided equitably without a sale.

Bill by Stephen Bell against George McLaughlin to quiet title. Cross bill by respondent for like purposes. From a decree in favor of cross complainant, original complainant appeals.

Bill by the State of Alabama against the Board of School Commissioners of Mobile County to annul certain leases, to enjoin waste and for other purposes. Decree for respondent on demurrer, and complainant appeals.

Bill by the B. F. Roden Grocery Company against J. F. Leonard and others, to annul the conveyance as a franc! upon creditors, to declare a judgment lien in favor of complainant, and for a sale of the land for the satisfaction of the judgment. From a decree overruling demurrers to the bill, respondents appeal.

Chancery Court. Bill by H. C. Allen against J. W. Reid to enforce the specific performance of a contract to convey land. Judgment for complainant and respondent appeals.

Bill by W. R. Williams against R. L. Williams to correct a description in a conveyance of land. From a decree granting the relief prayed the respondent appeals.

Bill by G-. B. Caldwell and another against D. K. Caldwell and another, for a decree determining the shares Avhich the several parties should contribute for the redemption of certain lands from a mortgage. From the decree of the chancellor, both parties appeal.

Bill by Eva Pittman and another against the United States Fidelity & Guaranty Company and others, for an accounting. Decree for complainants and respondetss appeal.

Assumpsit by tbe Holmes Furniture & Vehicle Company against W. P. Dilworth and others. Judgment for plaintiff, and defendants appeal. Tbe complaint contained the common counts and certain counts declaring upon a special, contract of guaranty, whereby the defendants guaranteed the payment of a note and mortgage executed by A. Y. Parker to plaintiff February 22, 1911, and payable to plaintiff on November 1, 1911.

Action by W. E. Easterwood against W. P. Lay for use and occupation. Judgment for defendant and plaintiff appeals.

Assumpsit by J. M. Jeffreys against Thomas J. «Jeffreys. Judgment for plaintiff and defendant appeals. Defendant was entitled to show that he claimed the land as his own twenty years ago. — Henry v. Brotan, 143 Ala. 446; Lawrence v. Ala. S. L. Co., 144 Ala. 524.

Ejectment by Thomas T. Ashford against Simp McKee. Judgment for defendant and plaintiff appeals. Where adjoining owners agree on a certain dividing line, one of them going into possession of the lands under the agreement, and remaining in possession up to such line uninterruptedly and exclusively, claiming to own them, for ten years, gets a title, which can be divested only by a conveyance, or by adverse possession by another for the statutory period.

<p>Appeal from Birmingham City Court.</p> <p>Ejectment by James Higgins and others, against the Tennessee Coal, Iron & Railroad Company. Judgment for defendants and plaintiffs appeal.</p>

<p>Appeal from Lauderdale Circuit Court.</p> <p>Ejectment by Frank Jackson against Anna Kretzer. Judgment for plaintiff and defendant appeals.</p> <p>Plaintiff traces title through deed from William Peck to Herman Muller, mortgage from Muller to Frank Jackson, and deed from Jackson as mortgagee to himself as purchaser at the mortgage sale. Defendant claims by deed from William Peck to herself and án adverse holding under the facts as stated in the opinion.</p> <p>The provisions of section 1541, Code 1896, are without application here as the holding was by one having title or at least under claim of right by gift or otherwise. — Owen v. Moxen, 52 South. 529; 48 South. 1033; 37 South. 98; 25 South. 716. Under the evidence the holding was adverse, and the court was in error in holding otherwise. — Hess v. Ruddier, 23 South. 136; 1 Cyc. 900; 19 S. W. 61; Authorities supra. Muller delivered the land as a gift together with the deed to him, and at once the possession of his grantor became adverse. — Lee v. Thompson, 99 Ala. 95, and cases there cited.</p> <p>Section 1541, Code 1896, became operative on February 11, 1893, and the evidence discloses that Peck went into possession of the title after that time. Hence, his holdings to become adverse must have been under a declaration or claim filed under said section. While a gift of land and possessions may be color of title as between vendor and vendee, it cannot be held to be color of title as between strangers to the transaction. — T. O. & I. v. Lynn, 123 Ala. 112; Burkes v. Mitchell, 78 Ala. 61; Clements v. Hayes, 76 Ala. 280; Bell v. Den-son, 56 Ala. 444; Matthews v. T. C. & I., 157 Ala. 23. Peck was a squatter and in order for liis possession to ripen into title, it was necessary for him to give the notice prescribed by the statute. — Scales v. Ott, 127 Ala. 582; 28 A. & E. Enc. of Law, 154.</p>

Proceeding for the determination of distributees of the estate of Jim Bell, deceased. Property having been awarded to George Bell and others, and a motion for new trial by Mary Bell and others having been denied, they appealed to- the circuit court, where the judgment was rendered for Mary Bell and others, from which George Bell and others appeal.

Original petition in the Supreme Court. Petition by G. B. Edwards for mandamus directed to the Hon. J. G. B. Gwin, judge of the city court of Bessemer, to require him to vacate and set aside an order and decree affirming or confirming the report of the special master granting to Maggie Edwards alimony and solicitor’s fees, and adjudging that petitioner and Maggie Edwards were legally married. Mandamus awarded. Mandamus is the proper remedy.- — 144 Ala. 414.

Mandamus by the State, on -the relation of Jefferson County, against R. E. Spraggins and others, to compel respondents, as members of the State Highway Commission, to secure payment to the relator of the sums appropriated to its use out of the State Highway Improvement fund in the years 1911 and 1912. From a judgment for the relator, the respondents appeal.