Volume 188 — Alabama Reports

Petition of Shell Fletcher for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Shell Fletcher v. State, 11 Ala. App. 180, 65 South , 683. The provisions of the Fuller bill, and the provisions of the act creating the court in which this cause was tried are in direct conflict, and the former must prevail. — 109 U. S. 504; 22 Mich. 322; Endlich on Interpretation, § 216.

Petition of Henry Pappenburg for certiorari to the Court of Appeals, to review and revise the judgment of said court in the case of Henry Pappenburg v. State, 10 Ala. App. 224, 65 South. 418, wherein said court affirms the judgment of the trial court convicting petitioner for transporting prohibited liquors, in violation of section 24 of the Fuller bill. See brief filed in the cause' as' reported in 10 Ala. Ápp. 224, 65 South. 418.

A. H. Alston. • Sam Spicer, Jr., was convicted of the murder of bis wife, sentenced to tbe penitentiary for life, and from such judgment he appeals. The court erred in excusing the jurors, for, notwithstanding their answers disclosed cause for challenge, the state may waive its right to challenge, and the court should not have excused them of its own motion. — Bell v. State, 115 Ala. 37; Lyman v. State, 45 Ala. 78; Murphy v. State, 37 Ala. 142; §§ 7276, and 7278, Code 1907.

Heard before Hon. D. W. Speaice. Jack Francis was convicted of murder, and he appeals. The following charge was refused to defendant: (1) I charge you that defendant, having been employed as night watchman at the place where the difficulty occurred, was under no obligation to retreat or run away from his place of business, but that he had a right to stand his ground and resist an attack made on him, if any were made.

Heard before Hon. C. P. Almon. Prank Tittle was convicted of murder and he appeals. In restricting, the statements of the defendant made in the presence of deceased, and admitted by deceased to be true, to a contradiction only of the previous declaration of deceased, the court was guilty of prejudicial error.' — Ma-loy v. Mate, 8 Ala. App. 73; Hussey v. Mate, 87 Ala. 121; Ex parte Key, 5 Ala. App. 274, and cases there cited.

Heard before Hon. Thomas W. Coleman, Jr. Ervin Pope was convicted of murder in the first degree, and he appeals. Counsel discuss the various errors assigned in the light of the opinions rendered on the former appeals in this case with the insistence that prejudicial error intervened. On the authority of the former appeals in this case the judgment of conviction should be affirmed.

<p> Arson. </p> <p>1. Witnesses; Impeachment; Predicate. — Before a witness can he impeached by showing contradictory statements made out of court, his attention must be called to the time and place at which he made them.</p> <p>2. Same. — Where the facts before the trial judge show that the witness knew the time and place where the contradictory statements were made, about which he was being interrogated, and show that he could not have been taken by surprise, but would be afforded ample opportunity to make any explanation desired, a sufficient predicate was laid for the admission of such statement, although the question asked did not fix the place.</p> <p>3. Appeal and Error; Court of Appeals; Review by Supreme Court. —Where the Court of Appeals found as a fact from the record that witness knew the place inquired about, and could not have been taken by surprise, but was afforded ample opportunity to make any desired explanation, such a finding was a finding of fact which will not be reviewed by the Supreme Court.</p>

Heard before Hon. E. S. Lyman. Walter Davis was convicted of murder, and he appeals.

Heard before Hon. D. W. Speake. William O’Rear was tried for murder in the first degree, convicted of murder in the second degree, and he appeals. Of the 89 special veniremen who answered at the trial 4 were excused for cause shown, and the remaining 85 being held competent jurors, were placed on a list a copy of which was duly served on defendant.

Joe R. Dudley and others were convicted for forgery, and oh appeal to the Court of Appeals, such judgment was affirmed. They bring petition for certiorari to the Court of Appeals to review and revise the judgment of said court. Counsel use the same brief and authorities as will he found set out in the report of this case in 10 Ala. App. 130. Counsel use same brief and authorities as will be found set out in the report of this case in 10 Ala. App. 130.

Heard before Hon. D. W. Speaks. Fletcher Tennison was convicted of murder and he appeals.

Heard before Hon. Bernard Harwood. Eugene Washington was convicted of robbery, and he appeals. The transcript shows that the case of the state of Alabama against Eugene Washington was tried at a regular term of the circuit court of Greene county, begun and held on September 22, 1913, it being the time and place fixed by law for holding such court.

Raymond Ratley was convicted of an assault with intent to murder, and on appeal to the Court of Appeals, judgment of the trial court was affirmed. He brings certiorari to review and revise such judgment. Counsel insists that the plea of former jeopardy was improperly overruled, and in support thereof cites the authorities to be found in his brief in 11 Ala. App. 104. Counsel use same authorities as set out in their brief in the former appeal, 11 Ala. App. 104.

Morgan Law and Equity Court. Heard before Hon. Thomas W. Wert. Action by tbe National Parle Bank of New York against tbe Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. Gaston Gunter. Action by tbe Smith Sons Lumber Company, a corporation, against Richard Tillis. .Judgment for plaintiff, and defendant appeals.

Pickens County sued L. C. Hudgins, and his official bond, for the failure to collect a certain mortgage tax, and had judgment thereon. Defendant moved for an order to vacate such judgment and appealed to the Court of Appeals from a denial of such motion. The Court of Appeals affirmed the action of the lower court, and Hudgins petitions for certiorari to revise such judgment.

Heard before Hon. Cecil Browne. Assumpsit by T. W. Reid against G. T. MeElderry on the common counts and on an award. Judgment for defendant and plaintiff appeals. Tbe plea of set-off was proper in this action. — Drennen v. Gilmore, 132 Ala. 248. The court should set aside the verdict. — Dar gem v. Maoris, 68 Ala. 144; L. cG N. v. Solomon, 127 Ala. 189.

Heard before Hon. D, W. Speaks. Assumpsit by Sallie Winter as administratrix, against Ignatius Poliak. Judgment for refendant and plaintiff appeals. Payment is confession?, and avoidance, and of course, must be proved by the-party affirming it. — 3 Brick. Dig. 433. The granting of the motion to exclude plaintiff’s evidence was error, if on any theory of the case the jury could have found for plaintiff.—97 Pac. 709; 142 U. S. 134; 6 Enc. P. & P. 444, 944-9, 951-2.

Calhoun Circuit Court. Heard before Hon. Hugh D. Merrill. Action by Mary Bee Crinningham against tbe Continental Casualty Company. From a judgment for plaintiff, defendant appeals. Tbe assured was a police officer of tbe city of Anniston, and was shot and killed by one McG-uffin, under tbe following circumstances: On Snnday afternoon, June, 1911, tbe Anniston chief of police, accompanied by tbe sheriff, went into tbe bouse of McG-uffin to arrest him.

Heard before Hon. W. W. Pearson. Action by the Protective Life Insurance Company against Cyrus B. Brown, as Insurance Commissioner of the State, for money had and received. Judgment for plaintiff, and defendant appeals.

Heard before Hon. H. A. Pearce. Assumpsit by D. M. Perry & Co-, against Smith Hall, as Tax Collector, to recover taxes paid under protest. Judgment for defendant, and plaintiff appeals.

Heard before Hon. Edward J. Gilder. Assumpsit by the Jefferson County Savings Bank against J. H. Compton. From rulings on the pleadings adverse to defendant he appeals. Counsel discuss the rulings on the pleadings, with citation of authority to the proposition that the various rulings were erroneous and prejudicial, but in view of the opinion, it is not deemed necessary to here set them out. Judgments on pleadings generally are not reviewable. — 2 Ene.

Heard before Hon. James Trotter, Special Judge. Action by M. M. Gwin against B. H. Long and others, upon a bill single or promissory note. Judgment for plaintiff, and defendants appeal.

Heard before Hon. Thomas W. Coleman, Jr. Assumpsit by Mrs. Susan E. Gunnels against T. K. Walker. Judgment for plaintiff, and defendant appeals. Tbe third assignment of error is: Tbe court erred in sustaining appellee’s objection to appellant’s counsel asking bim bow much be paid for tbe ditching.

Heard before Hon. Armstead Brown. Assumpsit by the State against Lewis S. Betty. Judgment for plaintiff, and defendant appeals. The suit is for the sum of $82 paid to defendant as alleged without authority of law. The facts agreed upon are as follows: Defendant is and ivas a regularly appointed- and acting member of the staff of the Governor of Alabama, being an aid-de-camp with the military rank of Lieutenant Colonel.

Heard before Hou. Samuel B. Browne. Action -by the Ogburn-Griffin Grocery Company against the Orient Insurance Company. Judgment for defendant, and plaintiff -appeals. The substance of the plea is sufficiently set out.

Heard before Hon. A. H. Alston. Assumpsit by the Britt-Carson Shoe Company against D. W. Baker. Judgment for plaintiff and defendant appeals. Interest is not allowed on running accounts so long as they are open, and remain open and unliquidated in the absence of some statutory provision or some contract of the parties to that effect. — 22 Cyc. 1015. Interest does not constitute a distinct claim, and can only be recovered with the principal. — 22 Cyc. 1571.

- Heard before Hon.. Edward J. Gilder. Dora Evans sued J. B. Meador in assumpsit and in trover, and had judgment from which defendant appealed. The corn was taken possession of by the tacit consent of plaintiff, and the demand for its return was necessary before trover could be maintained.; — Wilson v. Curry, 149 Ala. 368; §§ 4734, 4739, Code 1907. Under the authorities cited by appellant, and under the facts in this case, no demand was necessary.

Heard before Hon. Ed T. Albritton. Assumpsit by the S'essoms Grocery Company against the International Sugar Feed Company. Judgment for defendant on the pleadings, and plaintiff appeals.

Heard before Hon. Saffold Berney. Action by McHugh & Groom against E. G. Rike, for work and labor done.

Heard before Hon. W. W. Pearson. Action by Frank Nelson, Jr., and another, as partners, against the Buck Creek Lumber Company, for breach of contract. Judgment for plaintiffs, and defendant appeals. The judgment from which the appeal was taken appears to have been rendered October 25,1912, the bill of exceptions was filed with the judge January 22, 1913, and appears to have been signed by the judge April 21, 1913.

Heard before 1-Ion. Samuel B. Browne. Suit by the Mobile-Gulfport Lumber Company against W. H. Brunner for breach of a contract to deliver lumher.

Heard before Hou. W. W. Haralson. • Action by Dave Nicholson against J. W. Killpatrick for malicious prosecution and false imprisonment. Judgment for defendant, and plaintiff appeals. The first count claims damages for maliciously arresting and imprisoning plaintiff for two days. Count 2 claims for causing same to be done. Count 4 claims for assault and battery.

Heard before Hon. William M. Walker. Irene Briggs, as administratrix of the estate of H. W. Briggs, deceased, brings her action against the Birmingham Railway, Light & Power Company, for damages for the death of her intestate, caused by a high electric current. Judgment for defendant and plaintiff appeals. Electricity is highly dangerous, and care in the use thereof must be commensurate. — B. R. L. & P. (Jo. v-. Murphy, 56 South. 817; So.

Heard, before Hon. E. C. Crowe. Action by John B. Waterman against tbe Age-Herald Publishing Company for libel. Judgment for plaintiff, and defendant appeals.

Heard before Hon. D. W. Speaks. Action by J. T. Vinson against the Southern Bell Telephone &.Telegraph Company. From a judgment for defendant, plaintiff; appeals.

Heard before Hon. C. W. Ferguson. Action by J. T. Roach against the Birmingham Railway, Light & Power Company, for damages for loss of service and society of his wife by injuries inflicted by defendant upon her while a passenger. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Armstead Brown. Action in trespass and in trover by Bessie W. Walker against Rickard Tillis. From a judgment for defendant, plaintiff appeals.

Circuit Court. Heard before Hon. D. W. Speake. Action by Henry Simington against E. K. Langhorne and others. From a judgment for plaintiff, defendants appeal.

Heard before Hon. John H. Miller. Action by Belle Scisson against the Birmingham Railway, Light & Power Company, for damages for injuries sustained Avhile a passenger on one of. its cars. Judgment for plaintiff and defendant appeals. For brief and insistence, see case of B. R. L. & P. Go.-v. Lena Scisson, 186 Ala. 70, 65 South. 332. For brief and insistence see B. R. L. & P. Go. v. Lena Scisson, 186 Ala. 70, 65 South. 332.

Heard before Hon. W. W. Pearson. Action by William R. Brassell against the Mobile & Ohio Railroad Company, for damages for maintaining a stagnant pool near his dwelling. There was a verdict for plaintiff for one cent, which on motion of plaintiff, was set aside, and a new trial ordered, and defendant appeals. Counsel discuss the propostion that defendant is entitled to the affirmative charge, and in support thereof cite A. G. L. v. Woolf oik, 59 South. 635.

Heard before Hon. C. C. Nesmith. Action by W. M. Nalls against the Birmingham Railway, Light & Power Company for damages for injuries suffered while a passenger. -Judgment for plaintiff and defendant appeals. The judgment was excessive and should be set aside. — Acts 1911, .p. 587; M. & O. R. R. Co. v. Martin, 117 Ala. 382; L. & N. v. Anchors, 111 Ala. 492; B. R. h. tí- P. Co. v. Brown, 150 Ala. 326.

Heard before Hon. C. P. Almon. Action by tbe International Agricultural Corporation against the Southern Railway Company, for damages, for delay in delivering goods, and for injury to tbe goods. Judgment for defendant and plaintiff appeals. Tbe oivner of goods shipped may change bis instructions as to destination and substitute a different place of delivery.— MeTbourn v. L. & N., 88 Ala. 443.

Heard before Hon. H. A. Pearce. Action by J. S. Hutcbins against the W. R. Flowers Lumber Company for damages for injuries alleged to have been inflicted while in its employ. Judgment for plaintiff and defendant appeals. Count 5 was subject to the demurrers interposed. — Conrad v. Cray, 109 Ala. 130; ¡Seaboard Mfg: Co\ v. Woodson, 98 Ala. 378; Laughran v. Brewer, 113 Ala. 509; C. & W■ Ry. Co. v. Bradford, 86 Ala. 574; Tallassee Falls v. Moore, 158 Ala. 356.

Heard before Hon. Charles E. Waller. Action by Dolly McCray by ber next friend against S. C. Sharpe, for personal injury. Judgment for defendant and plaintiff appeals.

Heard before Hon. Gaston Guntek. Action by the Riverside Company against tlie Montgomery Light & Traction Company, for damages to wagon and team. There was judgment for defendant which was set aside on motion of plaintiff, and defendant appeals. The giving of the charges was without injury, if error. Rule 45, Sup. Ct. Pr. 29 Cyc., 654; 81 S. W. 566; 73 S. W. 1073. There ivas no error in giving charge 12.

Mrs. S. B. Whaley sued the city of Bessemer for damages for personal injury because of a defective sidewalk, and had judgment, which judgment on appeal to the Court of Appeals- was reversed and remanded. She now brings certiorari to review the judgment and decision of the Court of Appeals. Counsel uses the same argument in support of the petition for certiorari as was used by them as counsel for appellee in Oity of Bessemer v. Whaley, 10 Ala. App. 569.

Heard before Hon. John T. Lackland. Action by Charles T. Ezell against John A. Watters, for damages for trespass to realty. Judgment for plaintiff and defendant appeals. Under the evidence in this case defendant had actual adverse possession of said land which .had continued for more than thirty years at the time of the trespass. — Black v. Term. O. I. & R. R. Go., 93 Ala. Ill; Burkes v. Mitchell, 78 Ala. 73; Ala.

Heard before Hon. Gaston Gunter. Action by tbe Sellers & Orum Company against J. H. Hardaway and others, for damages for the destruction of a mortgage lien. Judgment for defendants and plaintiff appeals.

Heard before Hon. H. A. Pearce. Action by A. E. Helms, as administrator of the estate of E. D. Hobbs, deceased, against the Central of Georgia Railway Company, for damages for the death of his intestate. Judgment for defendant, and plaintiff appeals. The first count is based- on the negligence of the servants or employees operating the train in failing to ring the bell and blow the whistle at a street crossing.

Application by the state of Alabama for certiorari or other remedial writ to review the decision rendered by the Court of Appeals in. the case of State of Alabama v. T. E. Lovejoy, (Mem) 64 South. 1021, to collect on the suit of the state the sum of $157.95 as taxes due by Lovejoy to the- state and county upon 1,950 shares of the capital stock of the Alabama Fidelity & Casualty Company.

Original petition by John Doak for a writ of mandamus. The affidavit filed with tbe motion of tbe city of Birmingham to set aside tbe judgment by default is as follows : Personally appear before me, clerk of tbe circuit court- in and for said state and county, M. M. UHman, wbo being duly sworn deposes and says that be is tbe attorney of record for tbe city of Birmingham, in tbe above-entitled cause.

Heard before Hon. Gaston Gunter. Application by Charles B. Teasley as probate judge, for a writ of mandamus directed to John Purifoy as State Treasurer, requiring him to pay a certain pension warrant. From a judgment for petitioner respondent appeals.

Heard before Hon. James A. Croley. Contest of a stock law election by M. M. Price against DeKalb county. From a judgment for contestant, contestee appeals. Counsel discuss the qualifications of certain voters mentioned in the transcript, with citations of authority to show that they were not qualified voters, but in view of the opinion it is not deemed necessary to set them out. in detail.

Heard before Hou. W. W. Haralson. Motion by tbe Gay-Padgett Hardware Company for summary .judgment against Dallas Brown, as county treasurer, for refusing to pay certain claims wbicb bad been allowed by the commissioners’ court of Jackson county, and for which Avarrants had been draAvn against the general or special funds of the county. From a judgment granting the motion, the treasurer appealed. Motion Avas filed under section 5938, Code of 1907.

Heard before Hon. Gaston Gunter. Petition by the State Tax Commission of Alabama for mandamus directed to the State Auditor to require him to cease drawing his warrant in paying salaries of the members and secretary of the commission against the fund of $25,000 appropriated by section 2222, Code 1907, but to draw and charge said salary account against the general fund not otherwise appropriated, and' to diréct the Auditor to draw his warrant against said above-named sum only…

Original application in Supreme Court. Application by the Seals Piano & Organ Company for a writ of mandamus directed to the Honorable W. W. Pearson, judge of the circuit court, to require him to annul and set aside an order made by him continuing an attachment proceedings.

Original petition in Supreme Court. Petition by A. Delpey, Sr., for mandamus directed to Honorable A. H. Benners, as Chancellor, to require him to allow an amendment to a bill filled by the petitioner against the Thompson Realty Company.

Heard before Hon. Thomas W. Wert. Suit by tbe State, by its solicitor, against tbe Southern Express Company to enjoin the maintenance of a whisky nuisance. From a decree overruling demurrers to the bill, and a motion to dissolve a temporary injunction, defendant appeals.

Heard before Hon. Charles W. Ferguson, H. A. Sharpe, John H. Miller, and John C. Pugi-i. Action by the State of Alabama against the Alabama Fuel & Iron Company. Judgment for defendant, and. plaintiff appeals. This is an appeal by the state of Alabama from a judgment of the city court of Birmingham dismissing an assessment levied against the defendant for escaped taxes for the tax year beginning October 1, 1913.

Heard before Hon. Charles W. Ferguson, H. A. Sharpe, John H. Miller,, and John C. Pugh. Action by the State against the Tennessee Coal, Iron & Railroad Company. Judgment for defendant, and plaintiff appeals.

Heard before Hon. Saeeold Berney. Election contest instituted by J. P. Walters and others, against Pat J. Lyons, to contest his election to the office of commissioner of the city of Mobile. Judgment for contestee and contestants appeal. The appeal relates only to the ineligibility of Lyons, and this ineligibility arises through a violation of the statute, and of the Code.

<p> Ejectment. </p> <p>1. Boundaries ; Beetion Linej Location. — Where the sole issue in ejectment was the location of a boundary line between two government sections, such line, when located, was conclusive and fixed, notwithstanding the encroachment by the parties on either side of the line may have ripened into title by adverse possession, since such fact could not change the location of the section line, nor transfer the land so claimed from one section to the other.</p> <p>2. Same; Instructions. — Where ejectment was brought to recover the south half of the southwest quarter of a certain section, and defendant filed a disclaimer and set up that the dispute arose over a disputed boundary line separating sections 17 and 18 in the township, and each party pleaded what he claimed to be the true boundary line, a charge that if the jury were satisfied that the owners of the land on both sides of the M. line had recognized it as the true line, and had held up to such line adversely for more than ten years up to the time defendant bought his land, the jury should find the issues for plaintiff, was beyond the issues and erroneous.</p>

Heard before Hon. John T. Lackland. Ejectment by Isidore Bley and others against Maggie M. Lewis. Judgment for defendant, and plaintiffs appeal. The exceptions to evidence and other- facts sufficiently appear in the opinion.

Heard before Hon. W. W. Pearson. Ejectment by A. F. Wilson against T. J. Carling, as trustee, etc. From a judgment for defendant, plaintiff appeals.

Heard before Hon. H. A. Pearce. Ejectment by W. A. Childs against S. C. Floyd and others. Judgment for defendants, and plaintiff appeals. The suit is for 80 acres of land, which was originally owned by B. E. Floyd, who deeded it to his wife, M. G. Floyd, in 1880, he and his wife thereafterwards occupying it jointly as their homesteád until the death of the wife in 1887.

Heard before Hon. W. W. Haralson. Ejectment by John G. Prince and others, against Joe S. Prince. Judgment for plaintiffs and defendant apv peals. Declaration of adoption in Alabama is more in the nature of'a'deed than anything else — -A.imey v. DeLoach, 84 Ala. 394.

Heard before Hon. A. E. Gamble. Ejectment by S. J. Pen dry against Daniel Godwin and others. Judgment for defendant and plaintiffs appeal. It appears from the former opinion in this case that it was affirmed on the ground that plaintiff was estopped from maintaining his action on account of having accepted a deed from the executors of the estate of Pendry, deceased.

Heard before Hon. Samuel B. Browne. Ejectment by Caleb Toxey against H. W. Garrow and another. Judgment for plaintiff and defendants appeal. The mortgage from Wrag to Chandler did not cover the land in controversy, and the court erred in admitting it.—Garrow v. Toxey, 54 South. 556.

Heard before Hon. M. Sollie. Detinue by H. K. Gustin against C. C. Wilson for certain staves. Judgment for defendant and plaintiff appeals. The deed offered conveyed the legal title to- all the timber mentioned therein. — Zimmerman v. Daffin, 149 Ala. 380. A timber deed should be recorded. — Milliken v. Faulk, 111 Ala. 658. Defendant was a trespasser in the taking of the staves and the selling of them. — 80 Ala. 230.

Heard before Hon. H. A. Pearce. Statutory supersedeas by J. E. Henderson against the Planters & Merchants Bank of Ozark. Prom a judgment dismissing the writ, petitioner appeals. The verdict of the jury was clearly contrary to the great weight of the evidence, and did not support the verdict. — Lynn v. McGowan, 156 Ala. 462; Garter v. Fulgham, 134 Ala. 242. The verdict was contrary to the charge of the court, — Wolf v. DeLage, .150 Ala, 445.

Heard before Hon. Gaston Gunter. Bill by Marks & Gayle against Frank Stollemverclc and others, revived in the’name of his executors, to declare a deed a mortgage, to redeem, and for general relief. Decree for complainant and respondents appeal. The following is a copy of Exhibit B: State of Alabama, Montgomery County.

Heard before Hon. A. H. Benners. Bill by the Union Cemetery Company against R. T. Jackson and others to cancel a conveyance, and rescind a contract of purchase of land. Prom a decree sustaining respondents’ demurrers to the bill, complainant appeals.

Heard before Hon. L. D. Gardner. Bill by Louisa Crenshaw and others against the Gulf Red Cedar Company, for an accounting for complainants interest in certain timber cut and sold by respondent. From the decree rendered respondent appeals. Counsel insist that as this is a bill between tenants in common for an accounting, complainant is held to that measure of damages in amount of their interest in the timber actually cut and taken, and that they cannot he held as tort feasors.

Chancery Court. Heard before Hon. A. H. Benners. Bill by the city of Birmingham against Z. T. Rudolph for mandatory injunction to require respondent to remove certain obstruction alleged to be maintained by him in a public road. Decree for complainant and respondent appeals. The court erred in making an order substituting the city of Birmingham for the city of Elyton and letting the suit proceed in that name. — Pitts v. Powledge, 56 Ala. 147; Sims. Ch. § 351.

Heard before Hon. W. W. Whiteside. Bill by T. N. Harris against E. V. Jones and others, to redeem from mortgage and for an accounting for rents and profits against the mortgagee in possession. From a decree sustaining demurrers and dismissing the bill, complainant appeals.

Heard before Hon. A. H. Benners. Bill by H. M. Hartón against W. M. Little and others, to rescind and cancel a deed to' certain bonds, and to have a deed executed to complainant. Decree for respondents and complainants appeal. Counsel adopt practically the same brief as in the cases above set out. Counsel adopt practically the same brief as in the cases above set out.

Original petition in Supreme Court. Petition by Mary O’Rourke Colvert to compel the chancery court of Jefferson county to vacate an order setting aside the verdict of a jury rendered in a will contest. The complainant is entitled to some relief, and if the order of the court is not a final decree which will support an appeal, then she is entitled to the alternate writ of mandamus.- — ■ Bridgeport I. Go. v. Bridgeport L. Go., 104 Ala. 276.

Heard before Hon. J. H. Ballentine. Bill by Frank Hertzler against J. A. Kyser to enjoin the maintenance of a private nuisance. From an- order overruling the motion to dissolve a temporary injunction, respondents appeals. The bill was without equity and the injunction was improperly issued. — St. James Church v. Arrington, 36-Ala. 548. Attention is called to the health officer’s affidavit, and to the case of Gallagher v. Floury, 57 Atl. 672.

Heard before Hon. H. A. Sharpe. Bill by the Be Soto Coal Mining & Development Company against Jim Hill and another, to enjoin a judgment at law. Prom a decree sustaining demurrers to the bill, complainant appeals.

Heard before Hon. A. H. Benneks. Bill by John L. Yancey against the Alabama Methodist Orphanage and Willie Jordan Turner Scruggs for sale for division. Decree for complainant, and respondent Scruggs appeals.