Volume 186 — Alabama Reports

Heard before Hon. B. M. Miller. Clarence Monts was convicted of mnrder in the first degree, and he appeals. The facts and the objections to evidence sufficiently * appear from the opinion of the court.

Heard before Hon. William E. Fort. Harry Rohn, alias Harry Rohm, was convicted of murder in the first degree, and he appeals. Being- without counsel, the court appointed counsel for defendant, who discussed the case with defendant on several occasions.

Heard before Hon. E. S. Lyman. George Ziniman was convicted of murder and he appeals. The provisions of the jury law are mandatory, and the court may not strike from the venire the name of a juror on account of a clerical error in his name, against the objection of defendant. — Edgar v. State, 62 South. 800; Acts 1909, p. 305.

Heard before D. C. Almon. Jack Reeves was convicted of murder and he appeals. The court should have charged the jury upon all the decrees of homicide included in the indictment, as the evidence made it a question for the jury whether there Avas sufficient provocation to reduce the offense from murder to manslaughter.- — Dennis v. State, 112 Ala. 67; So. Ry. v. Burgess, 143 Ala. 364; Smith v. State, 83 Ala. 28; Mitchell v. State, 60 Ala. 32.

<p>Appeal from Bibb Circuit Court.</p> <p>Heard before Hon. B. M. Miller.</p> <p>Perry Mackey, alias, was convicted of murder in the first degree, and sentenced to be banged, and be appeals.</p> <p>Tbe indictment charged that tbe defendant, who was then and there a convict sentenced to imprisonment for life for a capital felony (naming it) from tbe circuit court of Macon county, Ala., on, to wit, the 10th day of October, 1905, and while said sentence was yet in- force against him, did unlawfully and with malice aforethought kill Will Anderson, by striking him with an axe. The motion to quash is based on the ground that, there was no legal evidence before the grand jury to sustain the averment in said indictment, that at the time of the commission of the crime charged the defendant was a convict sentenced to imprisonment for life under a conviction for a capital felony, from the circuit court of Macon county, Ala., and because there was no legal evidence before the said grand jury identifying the defendant as being the convict sentenced to imprisonment for life from the circuit court of Macon county, on October 10, 1905.</p> <p>The plea in abatement set up that the indictment charged the identical offense as an indictment returned against the defendant at the spring term, 1913, of the circuit court of Bibb county; that said former indictment was filed in this court at said spring term, 1913; that defendant was duly arraigned under said former indictment at the spring term,-1913, of this court, pleaded not guilty thereto, and said cause was set down for trial at said spring term; that on the day set for trial an order' was made by the court continuing the cause; that the indictment in this cause returned against him by the grand jury at this term of the court charges the identical offense alleged against him in the former indictment, and that this former indictment is still pending against him in this court, and undisposed of at the time the indictment in this cause was filed in this court; that prior to the filing of this indictment no order for another indictment had been made and entered by the court as required by section 7156, or 7157, or 7160, Code 1907. Nor was any order ever made by this court allowing, permitting, or requiring the finding of a second indictment against this defendant for the same offense charged in the first indictment.</p> <p>For further plea iu abatement and motion to quash the defendant alleges that while the indictment in this cause purports to have been signed by J. F. Thompson, as solicitor of the Fourth judicial circuit, as a matter of fact, the said indictment was not signed by J. F. Thompson, but his name thereto was signed by some other person.</p>

Heard before Hon. James A. Bilbro. Walter Pryor was convicted of murder and lie appeals. The application for a change of venue was filed in time. — § 7851, Code 1907, as amended Acts 1909, p. 212. The evidence fails to sustain the degree of homicide as found by the jury. —Clark’s Manual of Criminal Law, 60.

Heard before Hon. B. M Miller. Randall Woods was convicted of murder and he appeals. Counsel .discuss the motion to quash the indictment and to strike the venire, but in view of the opinion, it is not deemed necessary to here set it out.

Heard before Hon. Charles E. Waller. Ross D-ucett was convicted of murder in the second ■ degree, his punishment fixed at 50 years in the penitentiary, and he appeals. The facts sufficiently appear from the opinion.

Heard before Hon. S. L. Brewer. Action by J. H. Hingson against tbe Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. Thomas W. Wert. Action by Eliza Norwood against the Southern Railway Company for damages for injuries sustained while alighting from one of its passenger trains. Judgment for plaintiff and defendant appeals.

• Heard before Hon. Charles W. Ferguson. Action by Lee Beyer against the Birmingham Kail-. Avay, Light & Power Company for damages for assault and battery. Judgment for defendant, and plaintiff appeals. The complaint is based on the fact that plaintiff was a passenger, and that while a passenger the conductor, agent of defendant, while in the exercise or duty of his employment, struck plaintiff Avith a pistol or other heavy instrument, inflicting the injuries complained of.

Heard before Hoh. Hugh D. Merrill. Action by T. A. Haynes against the Southern Railway Company for damages for an assault committed upon him by a third party while in the depot of defendant company. Judgment for plaintiff and defendant «appeals. The evidence showed that defendant’s agent could not have prevented the assault, and defendant was entitled to-the affirmative charge. — So.

Heard before Hon. W. W. Haralson. Action by W. S. Miller against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals'.

Heard before Hon. John H. Miller. Action by Lena E. Scisson against the Birmingham Railway, Light & Power Company for damages suffered while a passenger. Judgment for plaintiff and defendant appeals.

Cullman Circuit Court. Heard before Hon. H. W. Speake. Action by Mary E. Whaley against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. The complaint charges that plaintiff was injured while attempting to alight from defendant’s passenger train at Cullman, by reason of the negligent conduct of said train by defendant’s servants.

Heard before Hon. Samuel B. Browne. , Action by Matthew L. Davis against Honor R. Turner. From a judgment for plaintiff, defendant appeals. The plaintiff offered in evidence a certified copy of patent from the United States to the state of Alabama conveying the swamp- and. overflow land, and covering the land in. question.

Heard before Hon. J. C. B. Gwin. Action by Pinkney R. Parsons against the Tennessee Coal, Iron & Railroad Company for damages to stream. Judgment for defendant, and plaintiff appeals.

Heard before Hon. C. P. Almon. Action by C. Streit against Luvenia Wilkerson in trespass guare clausum fregit. Judgment for defendant and plaintiff appeals. Tbe contract had been altered by the parties which they could'legally do, and the court erred in admitting the contract for one year. — 88 Ala. 367; 99 Ala. 620; 58 Ala. 296; 61 Ala. 312; 54 Ala. 122; 66 Ala. 548; 146 Ala. 568.

Heard before Hon. C. B. Smith. Action by J. L. Addington against the American Casting Company for damages for injury received in a collision between defendant’s wagon and team and plaintiff’s buggy. . Judgment for defendant on the pleadings and plaintiff appeals. The count in ques tion was good and the demurrers thereto should have been overruled. — Randolph v. Sharp, 42 Ala. 265; First Nat. Bank v. Chandler, 144 Ala. 307; 26 Ala. 1518, and cases cited.

Heard before Hon. W. W. Pearson. - Action by J. J. Stanley against the Louisville & Nashville Railroad Company and others for setting fire to and destroying plaintiff’s ginning plant. Prom a judgment for plaintiff, defendant named appeals.

Tuscaloosa County Court. Heard before Hon. H. B. Foster. Action by T. S. Deason against tbe Alabama Great Southern Railroad for damages for setting out fire. From a judgment for defendant, plaintiff appeals. The residence premises of plaintiff was destroyed by fire alleged to have been caused by sparks emitted from one of defendant’s passing locomotives.

Heard before Hon. E. C. Crowe. Action by Nicholas Brooks against Bert A. Ingram and others for conspiracy in preventing the running of an excursion planned and contracted for by plaintiff. 'Judgment for defendant and plaintiff appeals. It is competent to show that the agent of the railroad said that the train was canceled because Ingram and their crowd had broken it up by their conduct and their threats. — Noel v. Btate, 49 South. 824.

Heard before Hou. W. W. Haralson. Action by Lola Liverett as administratrix against the Nashville, Chattanooga & St. Louis Railway, for damages for the wrongful death of her intestate caused by being run down by a train on defendant’s railway. Judgment for defendant and plaintiff appeals. The court erred in sustaining demurrers to the fourth count of the complaint. • — M. J. é E. O. v. Smith, 153 Ala. 127; Montg.

<p>Appeal from Chambers Circuit Court.</p> <p>Heard before Hon. S. L. Brewer.</p> <p>Action by J. K. Fuller against the Lanett Bleaching Company for damages for personal injury. There was a judgment for defendant, and plaintiff appealed, and, pending the appeal, the cause of action was settled by the parties.</p> <p>On reaching this court, the appeal was submitted, and the appellee filed a motion to set aside the submission and dismiss the appeal because of the fact that, after the appeal was taken,' plaintiff and defendant compromised and settled the claim; the defendant paying the plaintiff the sum of $200 in full accord and satisfaction, releasing and forever discharging defendant from any and all actions, causes or causes of action, claims and demands in consequence of the injuries suffered. This accord was in writing and executed on February 21, 1912. Attorney for appellant resisted the motion, and asked to intervene for the purpose of prosecuting ■ the appeal, setting up a lien and an interest under the statute in the suit pending. In response to these several applications and motions, the following opinion was written.</p>

Heard before Hon. D. W. Speake. Action by E. D. Loyd against the Louisville & Nashville Railroad Company and others. From a judgment for plaintiff, defendants appeal.

Heard before Hon. E. C. Crowe. Action by Mittie Carter against James Walker for damages for personal injury caused by an obstruction across an alleged public highway. Judgment for defendant and plaintiff appeals.. The first inquiry is what is a public road and how is a public road established. The question is answered by the following authorities. — 37 Cyc. 17, 18 and 21; Rosser v. Bunn, 66 Ala. 89; Jesse-F. Go. v. Forbes, 29 South. 683; Godhran v. Percy, 152 Ala. 354; Wes.

Heard before Hon. D. W. Speake. Action by Winston F. Garth against the Nashville, Chattanooga & St. Louis Railway, for damages for the injury and death of certain horses alleged to have been caused by negligent operation of defendant’s train in frightening said animals and causing them to run on a trestle. Judgment for defendant and plaintiff appeals. For the former appeals in this case, see 155 Ala. 311, and 57 South. 640.

Heard before Hon. M. Sollie. The Central of Georgia Railway Company prayed for and obtained an appeal to the Court of Appeals from an adverse judgment against it in the circuit court at the ■suit of T. M. Courson, for damages for the loss of baggage. The Court of Appeals certified certain questions to the Supreme Court, which question, together with the answers, fully appear in the opinion. For opinion and decision of Court of Appeals, see 8 Ala. App. 589, 62 South. 977.

<p> Injury to Servant. </p> <p>Master and Servant; Injury to Servant; Pleas; Contributory negligence. — Where the action was by an employee for injuries sustained while driving cars along an air course in a mine due to an obstruction negligently placed in the air course without the knowledge of the servant, a plea setting up that such employee was guilty of negligence proximately contributing to his injuries in that it was his duty to keep a lookout to discover and avoid injury from obstructions, and that he negligently failed to keep such lookout, and thereby failed to discover the obstruction in time to avoid the injury, thereby proximately causing the injury, but which failed to allege that the obstruction could have been discovered, or the injury avoided by keeping a lookout, was subject to the demurrer interposed.</p>

Heard before Hon. A. H. Alston. Action by Joseph W. Epsey, administrator, against the Cahaba Coal Company.

Heard before Hon. D. W. Speaks. Action by Frank Schwaiger against tbe Louisville & Nashville Railroad Company, for injuries suffered by him while in its employment. Judgment for plaintiff and defendant appeals. The failure of the court to give the charge in writing after being notified and requested to do so constitutes reversible error. — § 5363, Code 1907; L. & N. v. Hall, 91 Ala. 122; 2 nEc. P. & P. 261.

Heard before Hon. John H. Miller. Action by Lennie Churchill as administratrix of the estate of J. C. Churchill for damages for the death of her intestate while engaged in the service or employment of defendant. Judgment for palintiff and defendant appeals.

Heard before Hon. Charles W. Ferguson. Action by Devie Witt against tbe Southern Railway Company for personal injuries. Judgment for plaintiff, and defendant appeals.

Heard before Hon. D. W. Speake. Action by L. L. Bontrager against the Louisville & Nashville Railroad Company, for damages for injury while in its employment. Judgment for plaintiff and defendant appeals. The court erred in admitting the testimony of Johnson as he was not shown to be an expert.- — Anniston v. Ivey, 151 Ala. 392; 125 Ala. 585. Defendant was entitled to the general charge as to count 1. — Hollcmd v. Tenn.

Heard before Hon. John-C. Pugi-i. Action by N. H. Fancher against the St. Louis & San Francisco Railroad Company for damages for injuries received in its employment. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. C. B. Gwin. Action by Joe Cole, as administrator, against the Sloss-Sheffield Steel & Iron Company for damages for the death of Ms intestate. Judgment for defendant, and plaintiff appeals.

Heard before Hon. B. M. Miller. Action by Frank Ravarono- against the Roden Coal Company for damages for injuries received while in its employment. Judgment for plaintiff and defendant appeals. The court erred in overruling demurrers to the complaint as amended. • — Woodward I. Go. v. Johnson, 150 Ala. 355. Defendant established without conflict its plea of assumption of risk, and the court erred in refusing the affirmative charge. — Gaynor v. So.

Heard before Hon. L. D. Gardner. Bill by Pauline Steinhart against the People’s Bank of Greensboro, to cancel certain mortgages and notes alleged to have been given to secure the debt of the husband. Decree for complainant, and respondent appeals.

Heard, before Hon. W. H. Simpson. Bill by Y. A. Reynolds against J. J. Cudd to- cancel certain mortgages. Decree overruling demurrer to the bill, and respondent appeals.

<p>Appeal from Morgan Chancery Court.</p> <p>Heard before Hon. W. H. Simpson. .</p> <p>Bill by Martha L. Joiner against James T. Watkins and others to cancel a mortgage as cloud on title, or, in the alternative, to declare a deed, absolute in form, a mortgage, and for redemption. Decree for respondents, and complainant appeals.</p> <p>The facts made by the bill are: That in November, 1906, Rube Grizzard became indebted to the respondent Watkins in an amount which was due and payable in October, 1907; the same being given to secure the purchase price of’ a mule, with interest. This was secured by a mortgage on appellant’s land which was signed by Grizzard, Martha L. Joiner, and her husband, Elisha Joiner; the last two signing by mark. That some time prior to September, 1909, Watkins began to insist and demand the payment of this mortgage debt, and on September 17, 1909, a deed was executed by Martha Joiner and her husband to Watkins for a recited consideration of $264. That Watkins only paid her $50 in cash; the balance of the consideration being supposed to be the amount due on the Grizzard mortgage, the said Watkins accepting the deed in settlement of the Grizzard mortgage, and payment of the additional cash to- appellant.. That on December 28, 1910, Watkins conveyed this land by warranty deed to S. U. Lemmonds, one of the respondents, for the sum of $850. The bill then'alleges: That the complainant was an old, illiterate woman, unable to read or write, and with no business experience. That her husband was dead. That he was- about 100 years old when he died, was unable to read or write, and for 10 years prior to his death was very feeble, and unable to transact any business. That Watkins was a brother of complainant, was an' active, experienced business man, and had, to some extent, looked after appellant’s business. That appellant had remained in possession of and dwelt upon this land continuously from the time she executed the deed up to the present- time. The facts were in dispute.</p> <p>Deeds conveying equity of redemption are always set aside if the consideration is grossly inadequate irrespective of other frauds or artifices. — Noble v. Graham, 140 Ala. 416; Lock v. Palmer, 26 Ala. 313; Hitchcock v. U. S. Bank, 7 Ala. 386; MoKinstry v. Gonly, 12 Ala. 678; Oakley v. Shelley, 129 Alá. 467; 27 Cyc.. 1374; 46 Am. Dec. 171. Under these authorities and under the evidence in the -case, relief should have been granted because of inadequacy of price. The mortgage should also be cancelled. —White v. Life Assn., 63 Ala. 419; Life Assn. v. Ne-ville, 72 Ala. 517; Brandt on Suretyship, § 295. Refusal to accept, a tender relieves the party tendering of paying the money into court, or from keeping tender good otherwise.- — U. S. Go. v. Lesser, 126 Ala. 589; Andrews v. Frierson, 39 South. 515. Counsel discuss other matters, but in view of the opinion, it is deemed not necessary to here set them out.</p> <p>The bare fact that the allegations of the bill and the proof were at such variance, required a dismissal of the bill. — A. F. L. M. Go. v. Sewell> 92 Ala. 171; Bone v. Lansden, 85 Ala. 564. The evidence was conflicting, and there was evidence to support the chancellor’s finding, and this court will not review the same on appeal.</p>

Heard before Hon. Ti-iomas H. Smith. Bill by James Jefferson against Annie D. Bailey and others. From a decree overruling demurrers to the bill, defendants appeal.

Heard before Hon. A. B. Benners. Bill by George Veitch, Jr., against the Cahaba Coal Company and others, to enforce a constructive trust. From a decree for complainant, respondents appeal. The property is certain coal property in the state of Kentucky, valued at $50,000.

Houston Chancery Court. Heard before Hon. L. D. Gardner. Bill by the Dothan National Bank for interpleader between the Enterprise Lumber Company and others, to determine to whom certain funds deposited therein belong. From a decree denying the right of interpleader complainant appeals. The bill of inter-pleader was proper in order to determine the respective claimant’s right to the funds. — Wheeler v. Armstrong, 164 Ala. 452; Kyle v. Mary Lee Go., 112 Ala. 606; Gonley v. Ala.

Heard before Hon. A. H. Benners. Bill by tbe Woodlawn Realty & Development Company against J. David Hawkins and others, to reform a certain deed' as to description. Decree sustaining demurrer to the bill and complainant appeals. Tbe appellant is not barred by laches nor staleness of demand. — 18 A. & E. Enc. of Law, 124; Glements v. Gow, in MSS.

Heard before Hon. W. H. Simpson. Bill by Mollie Woodruff against the city of Florence to enjoin the obstruction of a street. From a decree overruling demurrer to bill as amended, respondent appeals. The amendment did not meet the objections raised by demurrer, and failed to show liability on the part of the city. — City of Florence v. Woodruff, 59 South. 436; Campbell v. City of Montgomery, 53 Ala. 527; 58 Am. Rep. 866.

Heard before Hon. A. H. Benners. Bill by H. M. Hartón against the Empire Realty Company, R. D. Johnston, and others to cancel certain deeds, and for an accounting. From a decree for respondents on demurrer to the complaint, complainant appeals.

Heard before Hon. W. W. Pearson. Bill by J. C. Butler and wife against the partnership and the individuals composing it of W. E. Wright & Company, to declare a deed, absolute in form, a mortgage, and to redeem. Decree for complainants and respondents appeal. Fraud is never presumed, but when relied on must be clearly stated and clearly proven. — Johnson v. Rogers, 112 Ala. 576; McDonald v. Pearson, 114 Ala. 630; Howie v. Land Go., 95 Ala. 389.

Heard before Hon. L. D. Gardner. Bill by the Marbury Lumber Company against Virginia H. and W. H. Woolfolk to foreclose a mortgage. Cross bill by the wife setting up that the mortgage on her property was void because given to secure the husband’s debt. There was decree granting relief to the cross complainant, and complainant appeals.

Heard before Hon. A. H. Benners. . Bill by Thomas C. Kelley against Southern States-Fire Insurance Company to rescind sale of stock for fraud and to cancel note given therefor. Decree for complainant, and respondent appeals.

Heard before Hon. W. H. Simpson. Bill by W. D. Cardwell against the Virginia State Insurance Company, and others, to require a mortgage to be credited with the amount of a fire insurance claim, for an accounting, and to be allowed to redeem. From a decree sustaining demurrers to the bill, complainant appeals.

Heard before Hon. Thomas W. Coleman, Je. Bill by tbe Anniston Manufacturing Company against tbe Atlanta & Birmingham Air Line Railway Company and tbe Seaboard Air Line Railway Company to cancel and surrender a deed granting a right of way, and for general relief. From a decree for complainant, respondents appeal.

Heard before Hon. A. H. Benners. Bill by Joseph Y. Allen and others against the Providence Oil & Gas Company, G. B. Crowe, and another. Decree for complainants, and respondents appeal. Bill against G. B. Crown and James L. Davidson, individually and as president and secretary, respectively, of the Providence Oil & Gas Company, for the purpose of canceling a trust agreement entered into between complainant and respondents.

Heard before Hon. W. H. Simpson. Bill by the Ft. Payne Company against E. C. Drew, trustee, and others, in which a trustee in bankruptcy of a party respondent sought to intervene. Prom a decree denying intervention and granting relief, respondent and the trustee in bankruptcy appeals. In paying commission a fraud was being perpetrated on the buyer which complainant well knew. — McDowell v. Rigney, 108 Mich. 276.

Heard before Hon. Gaston Gunter. ' Bill by Ellen Love against C. O. Young and others, to sell land for division or patition,' with' cross-bill by respondent Binner: Prom a decree granting relief to complainant and cross complainant, respondent Young-appeals. There is no allegation of undue influence existing- at'the'time'of the execution'and'delivery of the deed, and the fifth ground of demurrer should have been sustained. — 75 Pac. 760; .127 Pa.

Heard before Hon. E. J. Garrison. Bill by C. D. Clifton against J. W. Burrows for specific performance. Decree for complainant and respondent appeals. There is no equity in the bill. — §§ 4196, 4207, Code 1907. The Clay county court had no jurisdiction. — § 3093, Code 1907; Hanoell v. Lehman, 72 Ala. 344. Complainants were not parties to the contract, and not entitled to specific performance. • — 1 Dan. Ch. 285; Waterman on Specific Perf. § 63.

Heard before Hon. John H. Disque. Bill of interpleader, by the Grand Lodge A. P. & A. M. (colored) of Alabama against Sarah Slaughter and Robert B. Slaughter, to- determine the right to- the proceeds of the benefit certificate in favor of Jacob Slaughter, deceased member of a local lodge. Prom a decree awarding the fund to Sarah Slaughter, Robert Slaughter appeals.

<p> Appeal From an Order Removing Trustee. </p> <p>1. Appeal and Error; Parties Entitled. — One not a party to a cause cannot prosecute an appeal therefrom to the Supreme Court; hence, attorneys for the assignee or trustee for the benefit of creditors, cannot appeal from a decree fixing their fees on an order removing the trustee.</p> <p>2. Same; Decrees Appealable; Discharge of Trustee. — An order removing an assignee or trustee appointed for the benefit of creditors is a mere incident of the administration of the trust, and is not a final decree within the purview of section 2837, . Code 1907, and hence, not appealable.</p>

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by John Scott against John Hogan and others to vacate certain proceedings in the probate court. From a decree overruling demurrer to the bill, respondent named appeals.</p> <p>The bill alleges that the father of orator, one John 5. Scott, died in Jefferson county, seised and possessed of, occupied by him as a homestead, lot No. 21 in block 6, Howell’s addition to the town of Woodlawn. That said John Scott left a widow, and your orator who was at the time a minor, under 14 years of age, and who was residing in the above-described property at that time. That on the 29th day of July, 1903, Emma Scott, the widow, filed in the office of the probate judge of Jefferson county, Alabama, her petition in writing, in which she averred that she was the widow of said John S. Scott, that said John S. Scott died seised and possessed of no homestead, and leaving no minor children, and praying that said lot 21 be set apart to her in lieu of homestead. Whereupon the judge of probate issued a commission to certain parties therein named to set apart exemptions to the said widow, and on August 4, 1906, thé commissioners filed their report with the judge of probate, setting aside lot 21 to said widow. That on August 4th said report was ordered to lie over for 30 days, and on September 4, 1903, the probate judge confirmed the report of said commissioners setting aside said lot 21 in lieu of homestead. (The petitions, reports, and decrees are attached as exhibits.) Paragraph 4 sufficiently appears in the opinion. Paragraph 5 avers that the respondents named are claiming an interest in the lot above described under and by virtue of said probate proceedings, and it is averred that the legal title properly belongs in orator; but, so long as the probate decree remains in force,, he has no adequate remedy at law for the enforcement of his right to said property.</p> <p>The fraud necessary to impeach a judgment must be actual fraud effecting the procurement thereof. — McDonald v. Pearson, 114 Ala. 630; Stallworth v. Blum, 50 Ala. 56; Cromelin v. McCauley, 67 Ala. 542; 98 U. S. 61; N. J. E. 229; 27 N. J. E. 315; 42 N. J. E. 573; 25 Pac. 970. Fraud is not well pleaded in this instance, and the demurrers do not admit that the acts complained of constituted fraud. —Penny v. Jackson, 85 Ala. 67. The proceedings tq set aside the lot to the Avidow Avas a proceeding in rem. — ■ Singo v. Frits, 165 Ala. 658. All that was nesessary then was that the court had jurisdiction of the res, not that it had jurisdiction of the owner of the res. — Fried-' man v. Shamlm, 117 Ala. 455; Lyons v. Rammer, 84 Ala. 197. The proceedings did not bar the right of the minor, but his remedy at law was adequate.</p> <p>The allegation of fraud was sufficient to give equity jurisdiction, and the court properly overruled the demurrer. — McBroom v. Hives, 1 Stew 72; Kennedy v. Kennedy, 2 Ala. 572. Equity Avill take jurisdiction and relieve fraud. — Authorities supra. The question of limitation and laches is a matter for answer and not for demurrer in this case.</p>

<p>Appeal from Jackson Chancery Oonrt.</p> <p>Heard before Hon. W. H. Simpson.</p> <p>Bill by C. W. Hayes and others, against J. Gr. McCarrell and another, for an accounting. Decree for complainants and respondents appeal.</p> <p>Error infected the decree in holding Boggs jointly liable with McCarrell for damages growing out of the alleged representations made by McCarrell at the time they bought. — Ghmnberlain v. Prior, 41 N. Y. 539; Margetts v. Lindsey, 112 Pac. 339; 84 111. 517; Taylor v. Thompson■, 111 N. Y. There was nothing of privity between complainant and Boggs.— Bomar v. Rosser, 131 Ala. 215; Stephenson v. Allison, 123'Ala. 439; Harrison v. Ala. Mid., 144 Ala. 246. The demurrers interposed by appellant McCarrell should have been sustained. — Henderson v. Yaughn, 5 Ala. 609; Smith v. Mwrphy, 58 Ala. 630; McIntosh v. Alexander, 16 Ala. 87; Paige jo. Bartlett, 101 Ala. 193; 20 Cyc. 30-53. In order to rescind they must put McCarrell in statu quo. — Authorities supra. The fact that' McCarrell paid the money to satisfy a debt due the bank of which they had no knowledge, is not a fraud. — Ball v. Fanley, 81 Ala. 228; Allgood v. Bank, 115 Ala. 418.</p> <p>One partner is liable for the frauds perpetrated by his associates on behalf of his firm. — 30 Cyc. 526. Under the mortgage, a secret encumbrance was placed on the interest in the second firm with rights to come in, dissolve and wind it up. — Renfroe n. Benedick, 75 Ala. 121. One whose property is applied by others to the satisfaction of a debt or encumbrance, is subrogated to- the rights of the creditor or encumbrancer. — 37 Cyc. 467; Murphree v. Cflisby, 168 Ala. 339.</p>

Heard, before Hon. A. H. Benners. Bill by Eli Wood and others against George Tribble for partition of certain land. Decree for complainants, and respondent appeals.

Heard before Hon. L. D. Gardner. Bill by W. M. Head against Malissa Lane and others to quiet title to land and to enjoin trespass thereon. From a decree overruling demurrers to the answer and cross-bill, and holding the pleas sufficient, complainant appeals.

Heard before Hon. H. A. Sharpe. Assumpsit by D. Coplon against Sam Z. Gingold. Judgment for plaintiff and defendant appeals-. Transferred from Court of Appeals under § 6, Acts 1911, p. 451. Counsel discuss the errors assigned with the insistence that they should bring about a reversal, but they cite no: authority in support thereof.

Heard before Hon. W. M. Walker. Action by J. B. Payne against the Sloss-Sheffield Steel & Iron Company for damages for breach of contract. Judgment for plaintiff and defendant appeals. The court erred in overruling demurrers to the sixth count of the complaint. — Elmore-Q. & Go. v. Parrish Bros., 54 South. 203; 1 Chitty’s Pld. 209; Red O. G. Go. v. Graves, 56 South. 506; Ghristy, et al. v. Patton, 148 Ala. 324; Pulliam v. Schimpf, 109 Ala. 179.

<p> Assumpsit. </p> <p>Pleading; Evidence; Variance; Persons Liadle. — In an action against two persons jointly for the value of the services of a physician and surgeon, rendered at their request, proof that the services were performed at the request' of only one of the defendants, was fatally variant with the complaint, and would not support a judgment against that defendant alone.</p>

Heard before Hon. J. J. Curtis. Assumpsit by W. Ed. Hall against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff and defendant appeals. The demurrers should have been overruled as to the second plea. —Mayer v. Kornegay, 152 Ala. 650. The demurrers'to complaint should have been sustained. — Em-tsell v. Masterton, 132 Ala. 275. All of the counts being upon the common count, no recovery conld be had on proof of the special contract.

Heard before Hon. H. A. Pearce. Trover and assumpsit by Rush Harmon against the Dotban National Bank. Judgment for defendant, and plaintiff appeals. The original complaint was in trover for the conversion of certain personal property alleged to belong to plaintiff, and claiming the sum of $2,000 as damages. A count was added by way of amendment for that sum had and received by defendant for use of plaintiff.

Ella Shoaf seeks by certiorari to review the judgment of the Court of Appeals reversing and remanding the judgment of the nisi prius court in the case of Hagin v. Shoaf, 9 Ala. App. 300, 63 South. 764. Ownership of personal property is a fact to which a witness may testify. —Rasco v. Jefferson, 142 Ala. 705.

Heard before Hon. E. C. Crowe. Assumpsit by Lula Ogburn against the Continental Casualty Company. Judgment for plaintiff and defendant appeals. The action of the court in striking plea 3 was erroneous and prejudicial. — Ramsey v. Smith, 138 Ala. 333; Coburn v. State, 151 Ala. 100;’ 16 Ene. P. & P. 52.

Heard before Hon. Edward J. Gilder. Assumpsit by John H. Minge against the Faunsdale Oil Mill, with garnishment in aid of. suit directed to the First National Bank of Birmingham. The garnishee answered indebted, but sought by answer to set off a debt dne the garnishee by defendant on a note not yet matured. From a judgment condemning the amount in the hands of the garnishee, to the claim of plaintiff, garnishee appeals.

Heard before Hon. T. L. Bortjm. Action by the Troy Lumber & Construction Company against J. T. Boswell for work and labor done, with set off and recoupment by defendant. Judgment for defendant and plaintiff appeals.

Heard before Hon. E. S. Lyman. Assumpsit by the J. R. Watkins Medical Company against S. P. Davidson as principal, with W. E. Love-lady and others as sureties. Judgment for defendant Lovelady and others, and plaintiff appeals. Count 1 is based upon damages for the breach of an agreement entered into by defendant jointly and severally with plaintiff on the 1st day of December, 1911.

Heard before Hon. John H. Disque. Asumpsit by W. J. F. Mitchell against the Sun Insurance Office of London. Judgment for plaintiff, and defendant appeals. The declaration was in code form for action on the policy of fire insurance for loss by fire.

Heard before Hon. W. W. Pearson. Assumpsit by J. H. Moore against tbe Elrod Lumber Company. Defended under tbe plea of general issue and recoupment. Judgment for plaintiff and defendant appeals.

Morgan Law and Equity Court. Heard before Hon. Thomas W. Wert. P. R. Hutson sued W. D. Griffin in the justice court, and had garnishment issued to the Illinois Central Railroad Company. The justice entered judgment on the garnishment, and the garnishee applied for certiorari to annul and quash or vacate the judgment of the justice court, which having been granted, plaintiff appeals.

Heard before Hon. John H. Miller. Assumpsit by Lutber M. Herrick against Annie Vu Herrick, a non-resident defendant begun by attachment. There was default judgment for plaintiff and defendant appeals. The notice required by the attachment' statute is jurisdictional, and without it the court cannot render a judgment by default, or make an order condemning property. — WUmerding v. Gorbm B. Go., 126 Ala. 268; § 2931, Code 1907.

Heard before Hon. C. B. Smith. Action by the Charlie’s Transfer Company against the Union Marine Insurance Company. Judgment for plaintiff, and defendant appeals.

<p> Assumpsit. </p> <p>1. Partnership; Obligation; Joint Liability. — Where several defendants were sued as partners for lumber alleged to be sold to the firm on the order of one of its members, plaintiff must show that the co-partners were bound by virtue of the buying partner’s authority to bind the firm in order to recover as against the partnership.</p> <p>2. Sarnie; Authority of Partner; Purchase of Q-oods. — Whether the partnership is commercial or not, one of the partners as such, has no authority to bind the firm for a purchase of lumber for a strictly-private purpose, wholly foreign to the firm’s business, the seller being apprised thereof on the face of the transaction.</p> <p>3. Sale; Action by Seller; Price. — -The burden is on the seller to show either an agreement as to the price, or the reasonable value of the goods where the action is for goods sold.</p>

Heard before Hon. M. Sollie. Assumpsit by the Montgomery Showcase Company against the Eason Drug Company. Prom a judgment for plaintiff, defendant appeals. The complaint sufficiently appears from the opinion. The following are the pleas: (1) The general issue.

Heard before Hon. J. E. Blackwood. Action by Berdie M. Crenshaw against the Massachusetts Mutual Life Insurance Company. Judgment for plaintiff, and defendant appeals. The complaint ivas in Code form for action on an insurance policy.

Birmingham City Court. Heard before Hon. C. C. Nesmith. Assumpsit by J. S. Shannon against Calvin R. Mower. Judgment for plaintiff granting insufficient relief, which judgment and costs were paid by defendant under circumstances set forth in the opinion, and plaintiff appeals. Counsel discusses the merits of the appeal with citations of authority, but in view of the opinion, it is not deemed necessary to here set it out.

Heard before Hon. Sapfold Berney. Action by Nathaniel P. Moss against J. H. King and another. Judgment for- defendants, and plaintiff appeals.

Heard before Hon. I). W. Spbake. Action by the Oneonta Trust & Banking Company against Harris, Cortner & Company, on an account. Judgment for plaintiff and defendant appeals. Under tbe hypothesis in the charge, the jury would have no right to disregard Winn’s entire evidence, as therein instructed. — Prater v. State, 107 Ala. 32; Little v. State, 39 South. 674.

Heard before Hon. S. L. Brewer. Action by Lehman, Weil & Co. against D. W. Baker for breach of contract to deliver 100 bales of cotton. From a judgment for plaintiff, defendant appeals.

Heard before Hon. W. W. Habalson. Action by M. H. Evans against the Bixby-Theisen Company for damages for breach of contract. Judgment for plaintiff, and. defendant appeals. The complaint on which the case was tried will be found set out in a former report in 174 Ala. 571, 57 South. 39.

Heard before Hon. E. O. Crowe. Assumpsit by Sifney Hart against the Rarden Mercantile Company. Judgment for plaintiff by default, and defendant appeals. Proof of service was not shown by the record in such a sense as to support a default judgment against the corporation.— Roman v. Morgan, 162 Ala. 133; Oxanna Assn. v. Agee, 99 Ala. 591. The service was on the proper officer and is sufficiently shown by the record.— Hoffman v.A. E. & F. Go., 124 Ala. 542.

Heard before Hou. C. P. Almon. Assumpsit by Robert L. Seals, as administrator against Frank M. Perry, to recover the excess of the amount brought at mortgage sale over the mortgagee’s proper demand. Judgment for plaintiff and defendant appeals. The purchase money was the mortgage debt and costs of foreclosure without regard to what the mortgagee may have bid, and without regard to what may be the expression of consideration in the deed. — Bean v. Pearce, 151 Ala. 165.

Heard before Hon. C. C. Nesmith. Assumpsit by the Leeds State Bank against E. W. Brandon and others. Judgment for plaintiff and defendants appeal. The default judgment was void. — Ew parte Haynes, 140 Ala. 196; Acts 1888-9, § 5. The court was without jurisdiction to assess damages, a jury having been 'demanded. — Authorities supra, and Constitution 1901, § 11.

<p> Assumpsit. </p> <p>1. Pleading; Set-Off and Counter-Claim; Necessity of Pleading.— Set-off and counter-claim must be specially pleaded to be available, and the sustaining of demurrer to such pleas on the theory that they were available under the general issue, was error.</p> <p>2. Contracts; Pleading. — Where the action was for work and labor done upon a building, the defense that the certificate of the architect was a condition necessary to payment, must be specially pleaded.</p> <p>S. Same. — A defense based upon a provision of the building contract making the architect the arbiter with respect to difference between the parties, must be specially pleaded.</p> <p>4. Same; Modification; Mode. — -An executory contract providing for the construction of a building not being of a class required to be in writing, may be modified by parol, without any new or independent consideration.</p> <p>5. Damages; Liquidated; Building Contracts. — Where the contract provided for $10 for each day’s delay in the completion of the contract beyond the day fixed for its completion it was a provision for liquidated damages and not a penalty.</p> <p>C. Appeal and Error; Harmless Error. — The court will not consider whether it was harmful to sustain the demurrers to special pleas setting up matter not available under the general issue, where defendant offered no evidence.</p>

Heard before Hon. Thomas W. Coleman, Je. Ejectment by L. A. Gilmer against M. L. Wade. Judgment for plaintiff and defendant appeals. The court erred in the admission of the testimony of the surveyor. — L. & N. v. Tegner, 125 Ala. 593. The only way to show delivery of deed is by parol testimony.

Heard before Hon. J. J. Curtis. Statutory ejectment by Hardy Blackwell against James L. Harbin. Judgment for defendant and plaintiff appeals. Tbe court was in error in bolding tbe deed to plaintiff to be witbin tbe purview of § 3422, Code 1907, and in not permitting appellant to show that tbe grantee of Mayo bad actual notice of tbe deed and claim of- appellant. — Ranhm M. Go. v. Bishop, 137 Ala. 271; Seeley v. Curtis, 61 South. 807.

Heard before Hon. H. A. Sharpe. Ejectment by Mrs. S. M. Prince and others against Mrs. Alice E. Carter. Judgment for defendant and plaintiffs appeal. Dormant judgment, until revived, ought not to affect intervening rights.— Leonard v. Brewer, 86 Ala. 390; Richardson v. Sterner Bros., 166 Ala. 351. Defendant was not a bona fide purchaser. — Barclay v. Plant, 50 Ala. 520; Doe, ex dem. Stevens v. King, 21 Ala. 429; 86 Am. Dec. 657; 16 Am. St. Pep. 381; 2 Devlin on Deeds, § 640.

Heard before Hon. H. A. Pearce. Ejectment by Nancy Colvin against Camilla Johnson and another. Judgment for plaintiff and defendants appeal. Counsel discusses the errors assigned predicated upon the court’s ruling on the evidence, and the giving and refusal of charges, and cites authority in support of his contentions, which is not deemed necessary to be here set out. Counsel discuss the errors assigned, but without citation of authority. j

Heard before Hon. A. E. Gamble. Ejectment by W. H. Wild against J. F. Jones. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. J. Curtis. Forcible entry and detainer by J. M. Phillips and others against Mary Phillips and others. From a judgment for plaintiffs, defendants appeal. The defendants were E. J. Phillips and Mary Phillips, his daughter, who removed the cause to the circuit court under the provisions of section 4283, Code 1907.

Heard before Hon. W. W. Pearson. Mandamus by the Bigbee Fertilizer Company against C. B. Smith, as State Auditor. Writ denied, and pe- . titioner appeals.

Heard before Hon. J. J. Curtis. Petition for mandamus by E. W. Long, as clerk, against Caine O’Rear, as treasurer. Judgment denying tbe writ, and petitioner appeals. The petition states that Long is clerk of the Walker circuit court and ex officio clerk of the Walker county law and equity court; that for the years 1912-13 the total assessed values of Walker county, as shown by the State Auditor’s report, exceeds $9,000,000.

Heard before Hon. W. W. Haralson. Mandamus by the Gay-Padgett Hardware Company, to require Dallas Brown as county treasurer, to pay certain county warrants. Prom an order granting re^ lief Treasurer Brown appeals.

Original petition, in tbe Supreme Court. Petition by Rebecca Jonas for a writ of mandamus directed to the judge of the law and equity court of Mobile county to compel him to refuse to grant an appeal from an order entered by him discharging a trustee.

Heard before Hon. Samuel B. Browne. The McDonald Lumber Company sued George B. Cleveland for rent and had attachment levied on certain lumber to which the MeGowin Lumber & Export Company filed a claim. From a judgment for plaintiff, claimant appeals. Under the facts it cannot be doubted that the legal title to the lumber had passed to and was in appellant at the time of the levy of the attachment. — Pilgren v. State, 71 Ala. 370; Braoidon P. Go. v. Boshciclc, 126 Ala. 252.

Heard before Hon. J. P. Stiles. J. P. Smith and M. J. Nichols applied for letters of administration upon the estate of Howell Smith, the one being the father and the other the maternal grandmother of decedent. Prom a decree granting letters to J. P. Smith, M. J. Nichols appeals.

Heard before Hon. J. J. Curtis. Tbe Corona Coal & Iron Company sued the Lucas E. Moore Stave Company for trespass to land by cutting trees thereon, and for the statutory penalty for the trees cut. Judgment for defendant and plaintiff appeals. The court erred in striking the first count of complaint. — § 2924, Code 1907; Guy v. Lee, 81 Ala. 163; Atkinson v. James, 96 Ala. 214; U. 8. B. 8. Co. v. Clark, 95 Ala. 322; Dittman B. & 8.

Heard before Hou. JT. J. Curtis. Mandamus by E. W. Long, clerk of the Walker law and equity court, against Caine O’Rear, as county treasurer, to require him to pay certain claims. From a judgment grantiug mandamus, the treasurer appeals. The case made by the petition is that the petitioner is ex officio clerk of the Walker law and equity court, and that there was a cause pending in that court styled State of Alabama v. George W. Ballmger.

Heard before Hon. W. M. Walker. Action by Marion Louise Thompson against William D. Nesbitt, individually and as trustee, to recover certain shares of corporate stock and for the conversion of the stock. ’ Defendant disclaimed any title to the stock, whereupon the Bank of Tupelo was substituted as defendant, and asserted its claim thereto. Judgment for plaintiff, and the substituted defendant appeals.

Heard before Hon. S. L. Brewer. Action by James H. Fletcher against the National Surety Company as surety upon a detinue bond given in tbe federal court. Judgment for plaintiff and defendant appeals.

Heard before Hon. W. W. Haralson. Petition by Letitia Kirby for common law certiorari to review the action of tbe commissioners court of Marshall county in establishing a public road, and to quash such proceeding. From a judgment dismissing petition petitioner appeals.

Heard before Hon. A. E. Gamble. Action by Louisa Wright against the Bentley Lumber Company and others for trespass to1 land and the statutory penalty of cutting trees. Judgment for defendants, and plaintiff appeals.

Heard before Hon. S. L. Brewer. Appeal from Tallapoosa Chancery Court. Heard before Hon. W. W. Whiteside. Held: be the basis of 1,000 horse power; (2) that lands, water, etc., in use by companies having similar powers, shall' not be condemned provided they may in themselves, or in connection with other lands, water, etc., held, be the basis of 500 horse power, but, if they have not the capacity of 500 horse power, they may be condemned; and…

Heard before Hon. Thomas H. Smith. Bill by the Southern Mineral Land Company against W. W. Shortridge and others to quiet title to land, and to divest the title out of respondents and vest it in complainant. Prom a decree overruling demurrers to the bill, respondents appeal.

Heard before Hon. Thomas H. Smith. Bill by M. B. Curry as administrator against William T. Leonard to set aside a conveyance of land and to charge respondent with certain money and evidences of debt alleged to have been transferred by a gift to him from complainant’s testator. Decree for respondent and complainant appeals.