Volume 187 — Alabama Reports

Heard before Hon. En. T. Albritton. Mitcbell Wells was convicted of murder in the second degree, sentenced to tbe penitentiary for 25 years, and he appeals. The indictment charged that Mitchell Wells unlawfully and with malice aforethought killed B. Sagers, alias B. Segers, by shooting him with a pistol.

Equity Court. Heard before Hon. Tiíomas W. Wekt. John Ragland was indicted for murder, sentenced to be hanged, and he appeals. ' The following is charge 2: Unless you believe beyond a reasonable doubt that defendant willfully, deliberately, maliciously, and premeditatedly killed deceased, you cannot find him guilty of murder in the first degree, but you may find him guilty of murder in the second degree, or manslaughter in one of the degrees.

Original petition in the Supreme Court. James Adams was convicted for keeping a gaming table and he appealed to the Court of Appeals, who affirmed the judgment up to the sentence, but remanded the cause to the lower court for the imposition of a proper sentence, and defendant brings certiorari to review the judgment and opinion of the Court of Appeals.

Original petition in the Supreme Court. Petition by Mike Ross for mandamus directed to J. J. Curtis, as Judge of the Circuit Court for Walker County, seeking to compel him to overrule the demurrer of the state to a plea in abatement filed by petitioner to an indictment pending against him in said court. The indictment charges petitioner with an assault with intent to murder, and the plea in abatement shows, in substance, as follows: Petitioner was indicted in August, 1912.

Heard before Hon. Hugh D. Merrill. Action by Lillie Looney against the Endowment Department of the District Grand Lodge No. 23, G. U. O. O. F., on an endowment policy, in which plaintiff recovered a judgment, and in aid thereof procured an ancillary attachment or garnishment issued to the Prudential Savings Bank of Birmingham, alleging that the Endowment Department had money therein deposited in the name of John G. Wright, Grand Treasurer of the order.

Heard before Hon. C. C. Nesmith. Action by J. A. Scales and another against Fannie Deslandes, for breach of covenant to repair. Judgment for plaintiffs and defendant appeals. The exceptions to evidence sufficiently appear from the opinion.

Heard before Hon. M. Sollie. Assumpsit by tbe Bullock County Bank against J. D. Norman. Judgment for plaintiff and defendant appeals. Tbe demurrers ought to bave been sustained to tbe amended or substituted counts of tbe complaint from 2 to 6 inclusive.—Daniels v. Carney, 148 Ala. 84; Newton v. Brooks, 134 Ala. 272; Jones v. Powell, 15 Ala. 824.

Heard before Hon. Joi-in H. Miller. William H. Daniel sued R. J. Hughes for commissions •alleged to be due him on a sale of real estate. Judgment for plaintiff and defendant appeals. Evidence of an offer to compromise is never admissible.—Gibbs v. Wright, 14 Ala. 466; Matthews v. Farrell, 140 Ala. 298; Zimmerman M. Co. v. Dunn, 151 Ala. 435; Cronin v. Amer. Sec. Go., 163 Ala. 533.

Heard before Hon. H. A. Sharpe. Alex Butler sues the Tennessee Coal, Iron & Railroad Company in assumpsit for work and labor, and from a judgment in his favor defendant appeals.

Heard before Hon. W. W. Haralson. S. J. Turner obtained judgment against the H. H. Hitt Lumber Company in a justice court, and the lumber company petitioned for certiorari to quash such judgment. The circuit court denied the writ and petitioner appeals. In the absence of anything to the contrary, the name of the defendant imports a corporation.—Moore v. Martin & Hoyt Go., 124 Ala. 292; 41 S. E. 79; 9 Minn. 239.

Heard before Hon. Saffold Berney. Assumpsit by R. P. Roacb against John T. McDonald, based on notes given for commission. Judgment for defendant and plaintiff appeals. Tbe purchase of tbe property upon wbicb tbe lien existed puaid and satisfied tbe debt secured thereby to tbe extent of tbe purchase money.— Harris v. Miller, 71 Ala. 33; Adams v. Sayre, 76 Ala. 520; 2 Jones on Mortgages, 953.

Heard before Hon. C. B. Smith. Action by S. P. Davis against E. E. Forbes upon a judgment rendered by tbe city court of Floyd County, Georgia. Judgment for plaintiff and defendant appeals.

Heard before Hon. Gaston Gunter. Suit by the state of Alabama against W. H. Sanders as State Health Officer, to recover excess of salary. Judgment for defendant and the state appeals. The office of State Health Officer is a public office.—United States v. Morris, 2 Brock. 96; Bradford v. Justices, etc., 33 Ga. 333; §§ 698, 702 and 704, Code 1907.

Heard before Hon. J. J. Curtis. Action by G-. C. Bay against the Fidelity-Plioenix Fire Insurance Company, upon a fire policy. Judgment for defendant and plaintiff appeals.

Heard before Hon. Edward J. Gilder. John H. Minge sued tbe Faunsdale Oil Mill Company, and bad garnishment in aid thereof served upon W. C. Clark, who was president of the corporation. From a judgment condemning certain money in Clark’s hands, the garnishee appeals. The answer of the garnishee not controverted in the mode prescribed by statute is to be taken as strictly true.—White v. Hobard, 90 Ala. 370.

Heard before Hon. John C. Pugi-i. Action by R. W. Draper against tbe Pennsylvania Fire Insurance Company on a fire insurance policy. Judgment for plaintiff and defendant appeals. Tbe facts sufficiently appear.

Heard before Hon. John H. Disque. Assumpsit by C. A. Nelson against J. B. Holcomb, and others. Judgment for defendants and plaintiff: appeals. The payment of the note certainly cannot be worked out of the facts in this case on any principle of abstract justice.—22 Cyc. .565-6.

Heard before Hon. C. P. Almon. Assumpsit by Prank M. Perry against George Young and the North Alabama Construction Company. From a judgment for plaintiff defendant Young appeals. The court erred in sustaining demurrers to appellant’s plea 2.—Bean v. Ohapman, 62 Ala. 58; State v. Parker, 72 Ala. 181; Smith v. Kirkland, 81 Ala. 345; Sharp v. All-good, 100 Ala. 183; So. Got. 0. Go. v. Bass, 126 Ala. 343; U. S. F. cG G. Go. v. Dothan, 56 South. 953; Raleigh Med.

Heard before Hon. J. J. Curtis. Action by W. F. Shauf against R. J. Potter and another. Judgment for plaintiff and defendant Potter appeals. Counsel discuss the errors assigned but without citation of authority. Counsel discuss the errors assigned but without citation of authority.

Heard before Hon. A. E. Gamble. Assumpsit by H. Williams against T. W. Shows, judgment for defendant and plaintiff appeals. The first count was on an account due.

Heard before Hon. Hugi-x D. Merrill. Action by D. W. Baker against S. M. Cotney to recover damages equivalent to a judgment paid by plaintiff. Judgment for defendant and plaintiff appeals. Plaintiff was entitled to recover, and tbe court erred in tbe judgment rendered.—2 Words & Phrases 1015; 3 N. W. 272; Stark v. Bernheim, 102 Ala. 464. The statute of limitations was without application.—Washington v. Norwood, 128 Ala. 383. Privity existed.—Sherm v. Brackett, 36 Minn. 152.

Heard before Hon. C. B. Smith. Action by E. S. Carden against T. P. Johnson for breach of a contract to purchase machinery. Judgment for plaintiff and defendant appeals. There was a rescission of the sale when Johnson declined to receive the machinery, and Carden undertook to sell the same in open market.—Eagan Go. v. Johnson, 82 Ala. 233; Frith v. Holland, 133 Ala. 586.

T. L. Sowell. Action by the Union Nursery Company against Peter Copeland. Judgment for plaintiff, and defendant appeals. The judgment entry was silent as to any ruling as to-count 5.

Heard before Hon. A. H. Benners. Bill by G. W. Shields against W. 0. Gewin and another, to declare a deed a mortgage and to cancel same as a cloud ou title. From a decree granting relief to complainant, respondents appeal.

Heard, before Hon. A. H. Benners. Bill by S. P. Bradley against W. T. Williams to declare and enforce a lien for attorney’s fees. Prom a decree overruling demurrers to the bill respondents appeal. The provisions of § 3011, Code 1907, are not retroactive.—Le-hart, et al. v. Deedmeyer, 48 South. 371.

Heard before Hon. A. H. Benners. Bill by O. J. Moore against the Wiseola Company of U. S. A. to cancel and annul a contract of subscription for certain shares of stock. From a decree overruling; demurrers to the bill, respondent appeals. The bill did not make a sufficient case of fraud to entitle complainant to a rescission.—10 Cyc. 437, 430.

Chancery Court. Heard before Hon. A. H. Benners. Bill by Catharine D. Edford against Felton T. Culley and others to confirm a sale of lands to complainant, and to divest whatever right or title defendants may have, and for general relief. Prom a decree granting relief to complainant, respondents appeal. It seems that the facts in the case were undisputed. Lots 9 and 10, block 39, Birmingham, were owned by Pfaffenschlager (formerly Mrs. Stone) at the time of her death in 1885.

Heard before Hon. A. H. Benners. Bill by Hiram O. Cain and others, against John G. Smith, as executor, and others, to enforce complainant’s claim for certain money and securities and to enjoin respondents from taking or disposing of same. From a decree overruling demurrers to . the bill respondents appeal.

Heard before Hon. L. D. Gardner. Bill by Hattie Farrior and others against W. B. Dozier to declare void a foreclosure under power of sale in the mortgage, to set aside the sale, and for redemption, or in the alternative for statutory redemption. Prom a decree overruling demurrers to the bill, respondent appeals.

Heard before Hon. W. H. Simpson. Bill by P. R. Hutson as trustee in bankruptcy of the Twin City Installment Company against John W. Sherrill and others, to- have certain transfers of stock set aside as fraudulent, and to recover of such shareholders the money received from the insolvent corporation in the sale of such stock. Prom a decree overruling demurrers to the bill, respondent John W. Sherrill appeals.

<p>Appeal from Montgomery Chancery Court.</p> <p>Heard before Hon. L. D. Gardner.</p> <p>Bill by R. H. Greene and others against the city of Montgomery for a mandatory injunction requiring the city to furnish complainant water at their regular rates, and to- supply meters. From a decree granting the relief prayed respondent appeals.</p> <p>The appellant is operating a system of waterworks for the inhabitants of the city of Montgomery, and the rate to the inhabitants has no relation whatever to the value of the water supply, and neither the inhabitants nor the trustees owe any public duty to those living outside the corporate limits.—A. & E. A. Cases, 519; 10 Id. 130; 44 N. E. 247; 24 Am. Eep. 610; 61 L. B. A. 41. The bill is not filed to enforce any contract, but is filed on the theory of a public duty on the part of the city to supply complainants with water, complainants being inhabitants of another city, which is an anomaly.—42 N. Y. 283. The bill did not state a case within the jurisdiction of the court, and should have been dismissed ex mero motu.—115 Ala. 548.</p> <p>Counsel rely for an affirmance upon the authorities of the former appeal, 180 Ala. 322, and authorities cited in the opinion, and in the brief of counsel for appellee.</p>

' Heard before Hon. A. H. Benners. Bill by J. & G. Lippman against T. M. Pankey and others as directors and individuals, under § 3516, Code 1907, to enhance the assets of the corporation already dissolved by compelling payment of the unpaid subscriptions to the capital stock. Prom a decree overruling demurrers to the bill respondents appeal.

Heard before Hon. L. D. Gardner. Bill by N. B. Johnson against Martha Jacobs and others, to reform a deed. Decree for complainant and respondents appeal. The evidence and pleading did not reach that particularity of averment and clear proof requisite to the reformation of an instrument.—Deooter v. Ohlander, 95 Ala. 467; Burnell v. Morris, 106 Ala. 349; Hough v. Smith, 132 Ala. 204; Folmar v. Lehman-Durr & Go., 147 Ala. 472; Sellers v. Grace, 150 Ala. 185.

Heard before Hon. J. W. Mabry. Bill by Henry C. Keeble against Alex W. Jones and another to redeem a life insurance policy from a pledge, and for an accounting. From a decree for respondents complainants appeal. Unless all the elements thereof are disclosed by the bill, laches is an affirmative defense.—First N. Bank v. Nelson, 106 Ala. 535.

Heard before Hon. A. H. Benners. Bill by J. J. Dikis against K. D. Likis to declare a trust in and to an undivided half interest in a lease, etc. From a decree sustaining demurrers to the hill complainant appeals.

Heard before Hon. Thomas H. Smith. Bill by Thomas Neely and others against Emily Welsh to reform a deed. Decree for complainant, and respondent appeals.

Heard before Hon. W. H. Simpson. Bill by Emil Ahlrichs against George H. Parker, individually and as executor, to cancel and annul cer-, tain mortgages. Decree sustaining demurrers to the bill, and complainant appeals.

Heard before Hon. L. D. Gardner. Bill by Carrie L. McEachern and others against C. B. McLeod and others for an accounting and to redeem and cancel mortgages. From a decree for complainants, respondents appeal. The following is Exhibit A: Whereas, John 0. McLeod is justly indebted to G. B. McLeod in the sum of money as shown by the account hereto attached, which said account shows that the total indebtedness of said John 0.

Heard before Hon. H. B. Foster. Bill by J. A. Ozement against M. G-. Mills and others to enforce an equitable mortgage or lien on certain timber and lumber manufactured therefrom. From a decree for complainant, respondent J. M. Card Lumber Company appeals.

Chancery Court. Heard before Hon. L. D. Gardner. Bill by W. H. Summerford against J. H. Hammond and others, to redeem land from an alleged invalid foreclosure sale. Prom a decree dismissing the bill complainant appeals. A sale of land under a power which rests wholly in parol does not divest mortgagee of the legal title nor cut off the mortgagor’s equity of redemption.—Jackson u. Scott, 67 Ala. 99; Cooper v. Hornsby,.71 Ala. 65; Tif lón v. Warthem, 93 Ala. 323.

Heard before Hon. John H. Disque. Bill by W. Fowler & Company against W. C. Bellenger to enforce an equitable set-off against a judgment. From a decree for respondent, Lay who was one of the partners, and the real party complainant, appeals.

Heard before Hon. A. H. Benners. Bill by Duke C. Bradford against A. T. Newell, as administrator of William A. Bradford, decease'd, and individually, and others, to remove the administration of the estate of the deceased from the probate to the chancery court, and for equitable relief against the administrator and for final settlement. Prom a decree for complainant, defendant named appeals.

Heard before Hon. John H. Bisque. Bill by Myrtle Kidd Dunlap, as executrix, etc., against A. W. Woodliff and lier minor children for the construction of the will of her testator and husband. From a decree construing the will, respondents appeals. The will is as follows: Item 1. It is my will and desire that all my just-debts be paid as soon as practicable after my death. 2.

Heard before Hon. A. H. Benners. Bill by the Fidelity Mortgage Bond Company against W. M. Morris and others for an accounting, cancellation of a deed, and the sale of property to pay debt, and to declare a deed a general assignment. From a decree overruling demurrers to the bill, respondents appeal.

Heard before Hon. E. C. Crowe. Bill by Mattie Henderson against A. L. Gilliland and otbers to restore to complainant a certain note and mortgage for the fraud and misrepresentations in procuring its assignment. Decree for respondents and complainant appeals.

Heard before Hon. Cecil Browne. Bill by W. F. Fitzpatrick and others against J. P. Barton and others to determine the right of possession and control of church property. Decree for complainants and respondents appeal. The court erred in refusing to dissolve the preliminary injunction.—Weeks v. Bynum, 158 Ala. 231; Johnson r. Howe, 154 Ala. 494; 16 Cyc. 199. All complainants must be entitled to relief or none can be granted.—Davis v. Williams, 130 Ala. 530.

Heard before Hon. W. W. Whiteside. Bill by the First National Bank of Anniston against B. C. Bynum Mercantile Company and others to enforce its- rights as the assignee of a certain mortgage and a certain lease contract, together with the notes of the mortgagee and lessee given to secure the same. From a decree overruling demurrers to the bill, defendants appeal.

Heard before Hon. W. W. Whiteside. Bill by the First National Bank of Jacksonville against B. W. Henderson to have a certain deed declared a general assignment for the benefit of creditors. Decree for respondent and complainant appeals. The contract is an Alabama contract and should be governed by the laws of Alabama.-—Bo. Ry. v. Harrison, 119 Ala. 639; 2 Mayf. 668; 30 Am. St. Rep. 823; 226 U. S. 112; 167 Mass. 211.

Heard before Hon. A. H. Benners. Bill by the Birmingham Securities Company against Alice Hodges to enjoin and restrain her from prosecuting an ejectment suit for land therein described. Decree for complainant and respondent appeals. The case was submitted for final decree on the bill of complaint and the decree pro confesso formerly taken against the respondent, and so far as the record shows no evidence was taken by either party.

Bill by J. E. Crane against J. H. Blackburn to reform the description in certain deeds executed by complainant to respondent. From a decree denying relief complainant appeals. After a discussion of the averments of the bill, counsel declare that the law is too well settled to need citation of authority to support the right of complainant to relief; hence, counsel cite no authority. Counsel discuss the errors assigned, but without citation of authority.

Bill by M. A. Gamble and others as executors of the estate of F. A. Gamble, against J. F. Andrews, to clear up title to land. Decree for respondent and complainant appeals.

Heard before Hon. Gaston Gunter. Bill by Edward Goode as administrator, against J. W. Abercrombie to foreclose a mortgage. Decree for complainant and respondent appeals. By the acceptance by appellee’s attorney and by appellee himJ self of appellee’s check, with the endorsement thereon contained, there was a complete accord and satisfaction of the mortgage.—Hand L. Go. v. Hall, 41 South. 78; Andrews v. Heller, 16 Ann.

<p>Appeal from Winston Circuit Court.</p> <p>Heard before Hon. J. J. Curtis.</p> <p>Bill by D. R. Dennis against tlie McEntire Mercantile Company to quiet title to land. Decree for respondent and complainant appeals.</p> <p>The execution of the deed did not impair the legal or equitable rights of the mortgagee.—Fouche v. Bwam, 80 Ala. 151; Jones v. Davis, 121 Ala. 315; Threefoot Bros. v. Hillman, 150 Ala. 256. Complainant was entitled to maintain the bill under § 5443, Code 1907.— § 2456, Code 1907; Brand v. U. 8. Oar Go., 128 Ala. 583; Bo. Ry. v. Hall, 145 Ala. 226; Wood L. Go. v. Williams, 157 Ala. 73; Jordan v. McOlure L. Go., 170 Ala. 310.</p> <p>When a deed was taken in satisfaction of a mortgage there was a release of the lien held under the mortgage, and appellant can only hold title under his deed, and the mortgage could not be looked to for any purpose.—N. E. M. 8. Co. v. ITvrsh. Bros., 96 Ala. 232. Under the facts, there was such a disputed possession, as would prevent complainant from maintaining his bill to quiet title to lands under the statute.—Holland v. Coleman, 162 Ala. 462; Fog v. Barr, 145 Ala. 244; Ladd v. Powell, 144 Ala. 408; Lyon v. Arndt, 142 Ala. 490; Downs v. Bailey, 135 Ala. 331. It is not necessary to show such character of adverse possession as would ripen into a title, but only such as would amount to a disputed possession. Crabtree v. Ala. L. Co., 155 Ala. 513; Ra/tvdall v. Daax/hdrill, 142 Ala. 490, and authorities supra.</p>

Heard before Hon. A. H. Benners. Bill by tlie Kirkpatrick Sand & Cement Company against the Wahouma Drug Company and others, to establish and enforce a material-man’s lien. From a decree for complainant certain of the respondents appeal. Where other than an original contractor claims the material-man’s lien, notice in writing must be given to the person against whom the lien was claimed.—§ 4762, Code 1907; Osborn v. Johnson, 99 Ala. 309; Crawford v. Staling, 155 Ala. 511.

Heard before Hon. W. W. Whiteside. Bill by M. A. E. Peavey and others against N. B. Sew-ell, to specifically perform. From a decree overruling demurrer to the bill, complainants appeal.

Heard before Hon. John H. Disque. Hill by the First National Bank of Gadsden and others against Cassels’ Mills, seeking the appointment of a receiver therefor. From an order appointing the receiver respondent appeals. An appeal lies from an order appointing a receiver.—§ 2840, Code 1907. Creditors asking for a receiver must be either judgment or lien creditors.—Ft. Payne Go. v. Ft.

Heard before Hon. W. W. Haralson. Action by O. I). Street and another against Joe P. Doyle in ejectment. There was judgment for plaintiffs for the land sued for, and the taxes paid by defendant for the land assessed against the plaintiffs, from which judgment they appeal. Plaintiffs proved their right and title to the land, and waste committed by defendant.

Circuit Court. Heard before Hon. M. Sollie. Ejectment by the Bank of Roanoke against Joshua Ballard. Prom a judgment for plaintiff, defendant appeals.

Heard before Hon. S. L. Brewer. Ejectment by Ida I. Oliver against W. S. Oliver. From a judgment for defendant, plaintiff appeals. The plaintiff sued to recover a rectangular strip of land 32 yards deep on the north side of the S. W. 14 of the S. W. 1/4, section 32, township 24,- range 23, Tallapoosa county.

Heard before Hou. H. A. Pearce. Ejectment by John F. Wise and others against J. H. Spears. Judgment for plaintiffs, and defendant appeals. The land sued for is described in the opinion.

Heard before Hon. John H. Disque. Ejectment by R. T. Royster against Allie Tbrasker. Judgment for plaintiff, and defendant appeals. The deed from Bradford & Tidwell as set out in the record conveying certain land to Susan Rogers simply convéys lots 1 and 2 in block B in the town of Mountainboro. Susan Rogers conveyed to S. J. Brewster by the same description. Brewster and wife conveyed to Royster by tbe same description; their deed also including other land not involved.

Heard before Hon. Joiín H. Disque. Ejectment by S. E. Jordan against R. B. Kyle. Judgment for plaintiff, and defendant appeals. Plaintiff sued for the recovery of five acres of land in the N. W. % of the S. W. section 33, township 11, range 6 E., in Etowah county. As to their paper titles, both plaintiff and defendant claim through one N. M. Thornton.

Heard before Hon. Tpiomas W. Wert. Bill by tbe Southern Railway Co., against the City of Decatur and others to remove as a cloud upon its title certain assessments for street improvements against its right of way in the city of Decatur. Decree for complainants and respondents appeals.

Heard before Hon. A. H. Alston. The City of Huntsville made certain assessments against the property of Georgia A. Pulley, for benefits accruing from street improvements. Pulley appealed from the judgment of the city council to the circuit court where a judgment was had for defendant, and the municipality appeals.

Original petition in the Supreme Court. Petition by the Montgomery Light & Traction Company for prohibition against the Alabama Traction Company, and Honorable Gaston Gunter, Judge of the City Court of Montgomery to halt certain condemnation proceedings in that court by the Alabama Traction Company pending a decision by the Supreme Court, on the question of jurisdiction.

Original petition in the Supreme Court. Petition by Tommy Pritchett for certiorari to the Court of Appeals to review and revise the decision of said court in the case of Pritchett v. Fife, 8 Ala. App. 462 ; 62 South. 1001. The plea of infancy is required to be pleaded specially, it being a personal privilege.—Cooper v. Payne, 94 Ala. 223; Riley v. DU-, Ion, 148 Ala. 283. The plea was sufficient and the court erred in sustaining the demurrers.—Daniels v. Hamilton, 52 Ala. 105.

Heard before Hon. W. W. Habalson. Detinue by Mrs. C. M. Morrow against Frank Gfossett and others. Judgment for plaintiff, and defendants appeal. The following Avere the charges refused to defendants : 1. If any one else is interested in the property, then Mrs. Morrow cannot recover. 7. If defendants in this case were not in the possession of the property sued for when this suit was brought, then your verdict must be for defendants.

Heard before Hon. C. B. Smith. Action by I. D. Smoot by Ms next friend, against J. H. Byan, in detinue to recover an automobile. Judgment for defendant and plaintiff appeals. Counsel discuss the errors assigned, but without citation of authority. No brief reached the Be-porter.

Original petition in tfie Supreme Court. Petition by Amanda Summerville for certiorari to tfie Court of Appeals to review and revise tfie decision of tfiat court reversing and remanding tfie cause of Duff in, et al. v. Summerville, 9 Ala. App. 573; 63 South. 816. Counsel make tfie same contention and cite tfie same authority as cited by them in 9 Ala. App. 577. Certiorari should be denied on tfie authority of tfie opinion and authorities cited in 9 Ala. App. 577.

Heard before Hon. Gaston Gunter. Mandamus by Phillip B. Bowers, as Tax Collector of Jefferson county, against C. B. Smith, as State Auditor, to compel a refund of certain moneys paid into the State Treasury. From a decree granting the writ, the auditor appeals.

Heard before Hon. Gaston Gunter. Mandamus by .the state on the relation of Daniel W. Troy against C. B. Smith, as State Auditor. From a judgment denying the writ relator appeals.

Original petition in the Supreme Court. Writ of prohibition on the part of the State of Alabama, on the relation of the Attorney General, to prohibit Hon. D. W. Speake, as Judge of the Eighth Judicial Circuit, from entertaining a writ of habeas corpus on behalf of Ben F. Strange, alleged to be in the custody of the sheriff of Morgan county under a warrant or order for contempt issued by Hon. Thomas W. Wert, as Judge of the Morgan County Law and Equity Court, sitting in…

Heard before Hon. J. J. Curtis. Petition by D. O. McConnell, as citizen and taxpayer '.of Payette County, for-a writ of prohibition against E. P. Goodwin, as Judge of Probate in said county, to prevent the said Goodwin as such judge from proceeding to hear and determine a certain proceeding for the condemnation of petitioner’s land for a county public road. From a judgment granting the writ, respondent appeals.

Heard before Hon. W. W. Pearson. Action by M. B. Lamont against the Marbury Lumber Company for trespass to realty. Judgment for defendant, and plaintiff appeals. See, also, 169 Ala. 33, 53 South. 773. The complaint is as follows: Count 1.

Heard before Hon. Thomas W. Wert. . Action by H. L. Kirby as administrator, against the Louisville & Nashville Railroad Company for damages for the death of his intestate while engaged in the employment of defendant. From an order granting defendant’s motion for new trial, plaintiff appeals. Under the evidence it was the duty of defendant to give some warning to its employees of the subtle and unappreciated danger of the compressed air hose.—1 LeB. § 235; 13 Am.

Action by Sam Dobbs, by next friend, against the Sloss-Sheffield Steel & Iron Company, for personal injuries. From a judgment for plaintiff, defendant appeals.

Action by I. A. Rice against the Alabama Fuel & Iron Company, and others, for damages because of an assault and battery, and false imprisonment. Judgment for plaintiff and defendant appeals. There was misconduct on the part of the officers of the court, and of the jury, sufficient to vitiate the verdict.—Martin v. State, 73 S. E. 686; Ellerbe v. State, 41 L. R. A. 561. The affidavits were admissible in evidence.—25 Barb. 98; E. C. M. & B. v. Phillips, 98 Ala. 170; 53 Am.

Heard before Hon. John H. Miller. Action by Mrs. Nellie M. Fuqua against the Louisville & Nashville Railroad Company for damages for being carried beyond her destination as a passenger. Judgment for plaintiff and defendant appeals. The court was in error in instructing the jury as a matter of law to return a verdict for plaintiff.—8 A. & E. Enc. of Law, 560.

Heard before Hon. Henry B. Foster. Action by Rice Brothers, a partnership, against J. H. Anders Mercantile Company, for damages for the destruction of a lien of a mortgage on certain cotton. ¿Judgment for plaintiff and defendant appeals. The court erred in admitting in evidence the record of the mortgage from Sammie Prewitt where the cotton was shown to have been grown by Soonie Prewitt, and also in giving charge 1 for plaintiff.—McNeelv.

Heard before Hon. D. W. Speaks. Action by James A. Anders against Randolph Sandlin, for malicious prosecution and false imprisonment. Judgment for plaintiff, and defendant appeals. The contents of the affidavit sufficiently appear in the opinion.

Heard before Hon. C. W. Ferguson. Action by Thomas J. Kinnon as administrator, against the Louisville & Nashville Railroad Company for damages for the death of his intestate, Frank Kin-non. Judgment for defendant and plaintiff appeals.

Heard before Hon. E. C. Crowe. Action by W. S. Brown for tbe use of tbe Southern States Fire & Casualty Insurance Company, against tbe Southern Garage Company, to recover, money paid under protest, tbe same having been furnished by said insurance company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. E. C. Crowe. Action by Fannie Allen Adams as administratrix, and by John T. Franklin, against T. J. Watson, the first being for the death of her intestate, and the other for personal injury, both actions growing out of the same transaction. There Avere separate judgments for plaintiffs upon a joint trial, and defendant takes an appeal in both cases, hut which are considered together.

Heard before Hon. C. B. Smith. Action by Laura L. Green against the Birmingham, Light & Power Company, for damages for injuries to her while a passenger. Judgment for defendant and plaintiff appeals. The court erred in giving charges G and H for defendant.-—So. By. v. Hobbs, 151 Ala. 351; Smiley v. Hooper, 147 Ala. 646; So. By. Go. v. Bobinson, 62 South. 813.

<p> Failure to Furnish Gas. </p> <p>1. Gas; Failure to Furnish; Complaint.-—The gas company carrying on a business affected with a public service is under the duty to furnish gas to anyone who will pay for it and comply with its reasonable regulations; hence, in a complaint in tort for damages for failure to supply plaintiff, it was necessary to allege a relation between the parties suing and the company’s duty to supply gas to such party, and an allegation that defendant wrongfully cut off the gas without stating the facts and that plaintiff was ready and able to pay for the gas, was not sufficient.</p> <p>2. Same; Contracts; Validity.—Where the gas was furnished through a prepayment meter, an agreement that the consumer should be liable for the loss or theft of the meter, or any money deposited therein, was valid.</p> <p>3. Same; Partial Illegality.—A contract by a public service corporation to furnish gas with an agreement that the consumer should be liable for the loss or theft of the prepayment meter, or any money therein deposited, was not illegal as to that agreement, although containing other stipulations and conditions contrary to public policy, since it was severable, and the stipulation as to the loss or theft was not affected by the illegality of the other stipulations and Conditions.</p>

.Appeal from Jefferson Circuit Court. Heard before Hon. C. B. Smith. Action by W. A. Reno against the Birmingham Railway, Light & Power Company, for damages for personal injury, from falling into an unguarded open ditch. Judgment for plaintiff and defendant appeals. The question asked the witness was a mere argument and properly disallowed.—Foxworth v. Brown, 120 Ala. 59; Bienville Go. v. Motile, 125 Ala. 178; Steele v. May, 135 Ala. 483; Griffin v. Bass F. Go., 135 Ala. 490.

Heard before Hou. J. J. Curtis. Action by Lee Hyche against the Barney Coal Company for damages for personal injury by being struck with a cross tie. Judgment for plaintiff and defendant appeals. The evidence was not sufficient to submit to the jury the question of defendant’s negligence or to show that the person who threw the cross tie was a servant of defendant.—Palos G. do G. Go. v. Benson, 39 South. 727; Mayer v. Bldg.

S. B. Whaley sued the city of Bessemer for damages for injuries sustained on account of certain extraneous substances on the sidewalk. There was judgment in the lower court for plaintiff, and on appeal, the Court of Appeals reversed and rendered such judgment. (8 Ala. App. 523, 62 South. 473.) Plaintiff brings certiorari to review and revise the judgment of the Court of Appeals. Certiorari awarded.

Heard before Hon. J. J. Curtis. Action by J. L. Ferrier against the Corona Coal & Iron Company for' damages for injuries to the surface by alleged negligent mining operations. Judgment for plaintiff and defendant appeals. The court erred in its action .upon the charges requested by defendant.—§ 2455, Code 1907; Williams v. Gibson, 4 South. 353; A. G. S. v. Hall, 105 Ala. 599; Phillips v. Amer. G. Go., 110 Ala. 521; Henry v. Garitón, 113 Ala. 636; Zimmerman Mfg.

Heard before Hon. C. P. Almon. Trover by the Pulaski Mule Company against Haley & Koonee for the conversion of two mules. Judgment for defendant and plaintiff appeals. The main point of contention is the proper construction of § 3394, Code 1907, relating to the recordation of conditional sales.

Heard before Hon. Hugh D. Merrill. Action by R. G. Bell, as administrator of L. F. D. Rosser, deceased, against the Central of Georgia Railway Company, for damages for the death of his intestate. Judgment for plaintiff, and defendant appeals.

Heard before Hon. John C. Pugh. Action by Rhoda W. Ellis against the Birmingham Water Works Company for damages for loss of property by fire proximately caused by a failure of the water-company to supply sufficient water for fire purposes. Judgment for defendant and plaintiff appeals.

<p> Injury to Servant. </p> <p>Master and Servant; Injury to Servant; Plea; Sufficiency.— Where the action was for the wrongful death of a convict laborer, killed by a mine car, it will not be inferred that deceased was’in such close confinement that he could not have avoided the accident; hence, a plea alleging that deceased was familiar with the track and was aware of the approach of the ear which struck him, and although there was room on either side of the track, he negligently failed to get off the track, is sufficient to present the defense of contributory negligence.</p>

Heard, before Hon. E. C. Crowe. Action by Mrs. Sallie Friedman against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals.

Appear from Birmingham City Court. Heard before Hon. C. W. Ferguson. Action by Mrs. Mary Hatton against tbe Birmingham Bailway, Light & Power Company, for damages for failure to transport her to her destination. Judgment for plaintiff, and defendant appeals.

Heard before Hon. C. C. Nesmith. Action by J. S. Evans, as administrator, against Frances J. Barfield, for damages for the death of his intestate caused by an automobile accident. Judgment for plaintiff, and defendant appeals. Count 2 sufficiently appears from the opinion.

Heard before Hou. W. W. Haralson. Action by Emma Fincher against S. I. Allen, for damages for an alleged slander. Judgment for plaintiff and defendant appeals. Counsel discuss the various matters assigned for error”, but cite no authorities in support of the same.

Heard before Hou. J. B. C. G-win. Action by Mary L. White and another, as administratrix, against the Sloss-Sheffield Steel and Iron Company, for damages for the death of their intestate, while in the service or employment of the defendant. ■ Judgment for defendant, which on motion of plaintiffs, was set aside, from which defendant appeals.

Heard before Hon. W. W. Pea-rson. Action by Charles B. Teasley as administrator of the estate of Ellen Benson, deceased, against the Central of Georgia Bailway Company for damages for the death of his intestate, while a passenger. Judgment for plaintiff and defendant appeals. Count 2 was subject to the demurrer.—B. R. L. & P. Oo. v. Grover, 159 Ala. 276.

Heard before Hon. Armstead Brown. Action by Marian King, by her next friend, against the Montgomery Light & Traction Company. From a judgment setting aside a verdict for plaintiff and granting a new trial, defendant appeals. Tbe suit was for injuries consisting in tbe severing of tbe toes on tbe right foot and tbe mutilating of tbe left foot of a girl about 11 years old.

Heard before Hon. A. E. Gamble. Action by Benton Steadham, pro ami, against the Cedar Creek Store Company, for injuries suffered in an automobile accident. Judgment for plaintiff and defendant appeals. A child between the ages of seven and fourteen presumptively cannot be guilty of contributory negligence, but this presumption can be rebutted by evidence.-—R. R. Go. v. Hanlon, 53 Ala. 70; Iron Go. v. Bramhy, 83 Ala. 374; Jefferson v. Birmingham, 116 Ala. 294.

Heard before Hon. H. A. Pearce. Action by the Jackson Lumber Company against the Western Union Telegraph Company for damages for the erroneous transmission of a message ordering certain machinery. Judgment for plaintiff and defendant appeals. There is nothing in the telegram informing the Fairbanks Company for what purpose the pulleys were ordered, and the only warranty implied was that the articles ordered were of sound material, and free from latent defects.—35 Cyc. 401-3.

Heard before Hon. Gaston Gunter. Petition by I. Brickman & Company, for mandamus to compel the Southern Express Company, a common carrier, to receive and transport a shipment of liquors to a party in another part of the state who was not a liquor dealer, hut where it was lawful to sell liquor. From an order granting the petition respondent appeals. The court erred in overruling the fifth ground of demurrer assigned.—Wes.

<p>Mandamus to Compel Payment of Road Tax.</p> <p>Oounty; Taxation; Road and Bridge Tax.—Under section 215, Constitution 1901, the money collected for road purposes is county money and a town cannot compel the court of county commissioners to pay over a portion thereof to the town.</p>

Heard before Hon. W. W. Haralson. Certiorari by Robert L. Ferguson to review an order of the Commissioner’s Court of Jackson county putting in force the initiative work of cattle tick eradication in said county. From an order of the circuit court dismissing the petition, petitioner appeals. All material facts alleged in the petition and not denied must be taken as true.—6 Cyc. 790.

Heard before Hon. J. E. Acker, Special Judge. Action by W. H. Morris against William Garner for a breach of covenant of seisin, revived against the executors of Gardner. Judgment for plaintiffs and defendant appeals. The following is the complaint: Count 1.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. Gaston Gunter.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court- of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>