Volume 189 — Alabama Reports

Heard before Hon. L. D. Gardner. Bill by Charles B. Goldthwaite against M. B. Campbell and W. P. McGaugh, to enforce a vendor’s lien. Decree for complainant and respondents appeal.

Heard before Hon. Thomas W. Coleman, Jr. Bill by W. L. Little against W. F. Britton and others, to avoid an assignment of a judgment belonging to the firm of Little & Britton. Decree for respondents and complainant ajppeals.

Heard before Hon. W. H. Simpson. Bill by the Cullman Property Company against the H. H. Hitt Lumber Company and others, to enjoin trespass upon land, for discovery in aid thereof, and for damages past and present. From a decree overruling demurrer to the bill, respondents appeal.

Heard, before Hon. Thomas W. Coleman, Jr. Original bill by R. J. Dickie and others, against J. F. Thrasher and others, to enjoin the foreclosure of a mortgage, with petition by R. B. Blake, to intervene, which leave being granted, Blake filed his cross bill in accordance with the petition, making C. F. Douglass and W. L. Abbott cross respondents. From a decree overruling the separate demurrers of said Douglass and Abbott to such cross bill, they appeal.

Heard before Hon. W. W. Whitesides. Bill by the Alabama Iron & Steel Company to quiet title to land, and for an injunction. Decree for complainant and respondent appeals.

Heard before Hon. W. H. Simpson. Petition by W. W. Metcalf against J. W. Gay as receiver, to declare complainant’s deposit a demand deposit and to have him pay the declared dividend on such deposits. From a decree granting relief the receiver appeals.

Heard before Hon. H. B. Foster. Bill by Florence Booth and others, against R. M., Cornelius and others, to reform a deed. From a decree for respondents, complainants appeal.

. Heard before Hon. Cecil Browne. Bill by W. B. Kant against the Atlanta, Birmingham & Atlantic Railroad Company to annul a deed or to reform the description thereof. Decree for respondent, and complainant appeals. The bill alleges the conveyance by Kant and wife to the Atlanta, Birmingham & Atlantic Railroad Company of 2.6 acres of land, the deed to which is recorded in the probate office of Talladega county, a substantial copy of which is set out.

Heard, before Hon. E. J.- Garrison. Bill by Willingham & Bell aginst J. S. Whitley to reform a contract, and for its breach. Decree for respondents and complainants appeal.

Heard before Hon. William H. Simpson. Bill by Veronica Schaufler against the South & North Alabama Railroad Company, to- abate a public nuisance, and incidentally, for damages. Decree for complainant and respondent appeals.

<p>Appeal from DeKalb Chancery Court.</p> <p>Heard before Hon. W. H. Simpson.</p> <p>Bill by W. H. Everett against J. W. Estes, to declare a deed a mortgage. Decree for respondent and complainant appeals.</p>

Heard before Hon. Gaston Gunter. Bill by James Palmore against Samuel Gerson and others, to quiet title and settle the line between two lots.

Heard before Hon. A. H. Benners. Bill by the Hardie-Tynes Manufacturing- Company to enjoin W. D. Cruse and others from interfering with their employees and against a strike. Decree for respondents and complainant appeals. The bill of complaint seeks relief against certain of complainant’s former employees, who are members of the Molders’ Union, and who in co-operation with the union have engaged in a general strike against their employers, including complainant company.

•Appeal from St. Clair Circuit Court. Heard before Hon. J. E. Blackwood. Mandamus by W. E. Oliver and others against P. E. Boberson and others, constituting the Board of Education of the Coal City School District, to compel the board to allow the children of relators to attend the public school free of tuition. From an order granting the writ, defendants appeal.

Heard before Hon. W. H. Simpson. Bill by Jerry Pearsall against John F. Hyde for an accounting and to redeem land from the mortgage lien. Decree for respondent and complainant appeals.

Heard before Hon. W. H. Simpson. Bill by Mary Cummings against A. McDonnell and others to cancel and annul an instrument as the last will and testament of George W. Ward, which instrument has been admitted to probate as the last will and testament of the said Ward, in the probate court of Madison county. The case was tided by a jury selected under venire issued by the chancellor. From a verdict for respondents, complainant appeals.

<p>Appeal from St. Clair Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p> <p>Bill by J. D. Taylor against W. J. Hunter to foreclose a mortgage. Decree for complainant and respondent appeals.'</p>

Heard before Hon. W. H. Simpson. Bill by J. B. Burleson against Martha E. Mays, to enjoin an ejectment suit, and to quiet title to land. Decree for respondent and complainant appeals.

Heard before Hon. W. W. Whiteside. Bill by J. M. Holley against N. B. Sewell and others, to declare a deed a mortgage, and to be let in to redeem, Holley being the vendee of the original mortgagor. Decree for complainant and respondents appeal.

Heard before Hon. H. A. Si-iarpe. Bill by N. Goodman against the Georgia Life Insurance Company and others to enforce the payment of a judgment. Decree on demurrer for respondents, and complainant appeals. The bill shows the following facts: In July, 1911, complainant was injured by an automobile operated by the Birmingham Auto Company, and in November, 1912 recovered a judgment therefor in the sum of $1,500.

Bill for Receiver, and to Subject drops to an Equity. Appeal from Cullman Chancery Court'. Heard before Hon. W. H. Simpson.

Heard before Hon. H. A. Benners. Bill by A. S. Cowan, as trustee in bankruptcy of the West Clothing Company, against Thomas F. West, There was a decree granting relief to complainant, and defendant appeals, and complainant brings cross-appeal. The matters referred to in the cross-bill as being proper matters of set-off are in the shape of proof of a preferred claim, filed by the said West 'against the'estate of the.

<p>Appeal from Sumter Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Bill by Hugh A. Haralson, filed originally against M. C. Foscue and others, for the sale of land for division. Decree for complainant, and respondents appeal.</p> <p>The bill is filed on the theory that Haralson and Shepherd and Mrs. Foscue were joint owners of a certain 80 of land, deriving their title by heritage through Mrs. Irene Larkin. The title was derived in the following manner: W. R. Larkin, Mrs. Foscue, and Betty Haralson were the sole heirs of Mrs. Allen Larkin; that W. R. Larkin had sold his interest in the property to one D. J. Shepherd, who is made a party; and that Haralson had succeeded to the interest of his first wife, Betty Larkin Haralson, as sole devisee. W. R. Larkin claimed the entire interest in the land, and Shepherd set up that he was an innocent purchaser for value from W. R. Larkin, and also set up in substance that, at the time he was on a trade for the land, Haralson knew that he was on such trade, and, instead of his objecting thereto, offered to sell Shepherd lands belonging to himself.</p>

Heard before Hon. Ti-iomas H. Smith. Bill by H. B. Sessions and others, against Sarah L. Trucks for the sale of land for partition and division. From a decree overruling demurrers to the bill respondent appeals. The land is described- by government subdivision as being in section 31, township 34, range 11 east, known as the Charley Woods place.

Heard before Hon. T. M. Espy. Bill by Josh P atenían by next friend, against W. A. Fountain and others, to redeem from mortgage foreclosure sale. From a decree overruling demurrers to the bill, respondents appeal.

Heard before Hon. Thomas H. Smith. Bill by Thomas W. Coleman as citizen and taxpayer, to enjoin the town of Eutaw from collecting certain warrants issued by the county in payment of street improvement around the buildings belonging to the county.

<p> Bill to Declare a, Resulting or Constructive Trust. </p> <p>1. License; Verbal; Revocation. — A verbal license to use land is revocable at the pleasure of the licensor, unless a valuable consideration has been paid and possession yielded to the licensee.</p> <p>2. Same; Water. — Incidental benefits that may accrue to a licensor as an officer or stockholder of a corporation, by way of a salary, cannot be regarded, as a valuable consideration .precluding such per* son to revoke a verbal license granted such corporation to take water from his land.</p> <p>3. .Same; Revocation; Equitable Estoppel. — A landowner’s consent or acquiescence in the use of his land by another under a verbal license raises ho equitáblé estoppel, and may be 'revoked, notwithstanding the licensee had made expenditures, in reliance thereon.</p> <p>4. Same; Notes. — A licensee under a verbal license is entitled to a reasonable notice only to permit him to remove personal property from the land, and is entitled to no notice for other purposes.</p> <p>. 5. Frauds; Statute of; Easement; Grant. — The right to take water from a reservoir on the lands of another, using a dam to collect it, and laying pipes to carry it away, is an easement rather than a personal license, and is of no effect'unless granted by a writing or acquired by prescription.</p> <p>G. Trusts; Constructive. — Wherever one person is placed in such relation to another by the act or consent of that other, or the act of a third person, or of the law, so that he becomes interested for him or interested with him in any subject of property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interest he has become associated.</p> <p>7. 'Injunction; Dissolution; Temporary. — Where a bill contains equity a respondent has no absolute right to have a dissolution of a temporary injunction on the sworn denials of his answer, and the injunction should be continued if it will do the respondent no harm, .and its dissolution might work an irreparable injury to complainant.</p> <p>8. Srnne. — In determining whether a temporary injunction should be dissolved, the court is not limited to the sworn allegations of the bill, and the sworn denials of the answer, but may consider ex parte affidavits, the courts possessing a sound judicial discretion in the matter.</p> <p>9. Same. — If there is grave doubt as to whether a complainant will prevail on the final hearing of the cause, the temporary injunction should be dissolved.</p>

<p>Appeal from Morgan Chancery Court.</p> <p>Heard before Hon. W. H. Simpson.</p> <p>Bill by J. R. White against S. E. Stewart, Stewart Brothers, and the members composing the firm, to specifically perform a contract. Prom a decree granting a temporary mandatory injunction, respondents appeal.</p> <p>The bill asked for a receiver to take charge of the property of the Stewarts, and that the receiver sell or sequester so much of the property as may be necessary to finance complainant’s enterprise, according to the contract, and to restrain and enjoin each and all of the respondents from refusing to accept all invoices for the output of complainant’s mill, and from refusing to advance the face valne thereof in cash to complainant, and from attempting to foreclose the mortgage in any way, and for general relief.</p>

Heard before Hon. L. D. Gardner. Bill by J. I.. Findley against J. A. May, to redeem land from mortgage and for general relief. Decree for complainant, and respondent appeals.

Heard before Hon. A. H. Benners. Bill by Gus Colvin against George B. Ward and others, as governing officers of the municipality of Birmingham, to restrain the issue of bonds for a municipal auditorium and the acquisition of a site therefor. From a decree sustaining demurrers to the bill, complainant appeals.

Heard before Hon. A. H. Benners. Bill by Belier Leith against the Galloway Coal Company to redeem from mortgage foreclosure sale. Decree for respondent, and complainant appeals. Bill alleges the execution by the Douglass Coal & Coke Company on August 19, 1910, of a mortgage to the Galloway Coal Company to secure the payment of an indebtedness due from the mortgagor to the mortgagee.

Heard before Hon. Lum Duke. Bill by L. Penn Montgomery and another against Maud Wilson and others to quiet title to land. Decree for respondents, and complainants appeal.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon.'Gaston Gunter.</p> <p>Bill by Ella Downing' Foshee' against the Hillcrest Land Company to foreclose a mortgage. Decree for complainant and respondent appeals.</p>

Heard before Hon. W. W. Whiteside. Bill by J. L. McAllister and others against J. M. McAllister and others, to avoid and cancel conveyances and contracts upon the ground of fraud, for a sale of certain lands for division or partition, and for an accounting by tbe beneficiaries of tbe conveyance. From a clecre overruling demurrers to the bill, respondents appeal.

Heard before Hon. W. H. Simpson. Bill by W. A. Douglass against the Standard Real Estate Loan Company and others, to cancel a mort-t gage as a cloud upon title. From a decree sustaining demurrer to the bill, complainant appeals.

Heard before Hon. John H. Disque. Bill by J. F. Jackson against M. B. Johnson and others, to cancel notes and mortgages on the ground of fraud. Decree for respondents and complainant appeals.

Heard before Hon. L. D. Gardner. Bill by Laura K. Brightman against E. L. and C. P. Rogers, Jr., and others. From a decree overruling the demurrer to the bill, defendants appeal.

Heard before Hon. Armistead Brown. Bill by Estelle Manegold Beaven against George Manegold and others, to impeach a decree for fraud. From a decree overruling demurrers to the bill, defendants appeal. A general statement of facts will he found' in the opinion. The following are the paragraphs of the bill referred to: (13) That at the time of the death of her said father, Joseph Manegold, oratrix was 11 years old. Her mother had been dead for six years.

Court. Heard before Hon. Gaston Gtjnter. Bill by Robert Woolfolk against tbe Atlantic Coast Line Railroad Company to require the opening of certain sewers, to enjoin the overflow of complainant’s land, and for other relief. Decree for complainant and respondent appeals.

Heard before Hon. W. W. Whiteside. Bill by S. M. Peavey and others, against John T. Peavey and others, for the sale of land for division. Decree for respondents and'complainants appeal.

Heard before Hon. A. H. Benners. Bill by C. P. Chabert and others against J. M. Henley. From a decree overruling demurrers to- the bill, respondent appeals.

Heard before Hon. Thomas H. Smitpi. Bill by Mary E. Holmes and others, against the Mobile Temperance Hall Association for the distribution of assets of the defunct corporation. Decree for complainant and respondents appeal.

Heard before Hon. W. W. Whiteside. Bill by R. L. Evans against W. D. Mackey to enforce an equitable set off against a judgment at law. Judgment for respondent and complainant appeals.

Heard before Hon. E. S. Lyman. Bill by Mary Jones against J. W. Jones for absolute divorce on the grounds of cruelty. From a decree for complainant and dismissing respondent’s cross-bill, respondent appeals. The respondent denied the cruelty and. filed a plea alleging the invalidity of his marriage with complainant because of the existence of a living husband of a former marriage, and by cross-bill prayed for a decree annulling his alleged marriage with complainant.

Heard before Hon. A. H. Benners. Bill by Mary R. Timmons against Minnie Shelton and others to follow and subject to- complainant’s demand certain money alleged to have been fraudulently donated to respondents.by complainant’s debtor, and incidentally for discovery. Decree overruling demurrers to the bill, and respondents appeal.

<p> Bill for Partition. </p> <p>1. Partition; Right to Partition. — Where two brothers were tenants in common, and one died leaving a widow but no children, and then the other died leaving a widow and seven children, the children being the sole heirs of each estate, subject to the homestead and •dower rights of each widow, the widow and children were entitled to have the land divided into two equal parts, one of which should be set aside to them as the heirs of the latter brother, and the other to them and the widow of the first brother, the same as if partition had been had during the life of the brother, and just as if there were no common heirs to each estate.</p> <p>2. Same; Situation of Home; Effect. — Where land is held by two tenants in common, each of whom had a residence thereon which, together with the land and improvements on his side of the tract he occupied and used for a period of twenty years with the other’s acquiescence, each tenant was entitled to have set apart to him on partition, as against the other tenant in common, or his heirs, the land upon which his home was situated.</p> <p>3. Same; Homestead; Right to Have Set Apart. — Under the facts in this case, an actual partition of the land is unnecessary, as equity can be done by setting aside the homestead of the widow of the brother leaving children, and by setting aside to her for her life by metes and bounds one-sixth of the entire tract as dower, and then selling the remainder of the land for division between the widow of the first brother dying without issue, and the children of the second brother, paying to the widow of the first brother out of such proceeds the value of her dower and homestead rights, and dividing the remainder, after payment of indebtedness, among the children.</p> <p>4. Homestead; Right of Widow. — Tt is the policy of the law to settle upon the widow for her natural life the home occupied by her husband as his residence, and not to give her money in lieu thereof, unless the home cannot be given her.</p> <p>5. Dower; Rights of Widoto. — A widow should be given as her ■dower a life estate in a one-third part in acreage and value of the lands of which her husband died seized and possessed, and not be given money in lieu thereof unless the lands cannot be allotted to her.</p> <p>8. Appeal arul Error; Remand; Subsequent Proceedings. — While the widow of one tenant in common had not by cross bill sought the relief to which she was entitled under the evidence, yet if her answer supported by evidence shows the situation under which a complainant is not entitled to a decree for entire partition, as granted, the case will be remanded that the decree may be set aside, and the pleadings amended to meet the equity shown by the evidence, and for the admission of such evidence in addition as the parties may desire.</p>

<p>Appeal from. Lowndes Circuit Court.</p> <p>Heard before Hon. A. E. Gamble.</p> <p>Ejectment by Mrs. Mary R. Gordon against Mrs. Birdie Shepherd Hall. Judgment for plaintiff and defendant appeals.</p>

Clair Circuit Court. Heard before Hou. James E. Blackwood. Ejectment by A. O. Campbell against Maggie Beyers and others. Prom an order overruling plaintiff’s motion for entry of judgment on the verdict, and from an order granting a motion to expunge a judgment entered by the clerk of court, plaintiff appeals.

<p> Ejectment. </p> <p>1. Deeds; Description; Area. — Where plaintiff claimed under a deed conveying two 40-acre tracts, except 7 acres thereof, theretofore sold to defendant’s predecessor in title, as described in his deed, and defendant claimed under a deed reciting that it was in fulfillment of the contract to convey about 7 acres out of the north side of the two forties, the deed describing the land conveyed as 7 acres more or less, situated in said two forties, lying north and northwest of a certain railroad, and including the right of way, plaintiff was entitled to all the land south of the right of way, although there were only three or four acres in the tract north of the railroad; since quantity cannot control the bounds iií a description where the words“about” and “more or less” are used.</p> <p>2. Same; Uncertainty; Validity. — A deed must be given effect if possible, and is to be construed against the grantorhence, where a deed, other than a tax deed, conveys an entire tract, except a part, and the description of the part excepted is uncertain, the exception, but not the grant, will fail.</p> <p>3. Same; Description. — Where a deed refers to another deed, the deed to which reference is made is considered as incorporated in the deed containing the reference, for the purpose of interpretation.</p> <p>4. Same. — Where a deed refers to a previous contract in pursuance of which it is given, the deed will be construed in the light of the contract, but such contracts cannot enlarge the grant, even though the deed stated that it conveyed the same lands described in the contract, and there were elements in the description in the contract' which might include more land than was described in the deed; the deed determining the construction placed by the parties upon the contract.</p> <p>5. Same; Presumption. — Where a grantor conveys a certain quantity of land in a larger tract, without describing the boundaries thereof, the presumption is in favor of a square or parallelogram, not a fanciful or unique figure.</p> <p>6. Ejectment; Burden of Proof; Exception. — Since a plaintiff must recover on the strength of his own title, and not on the weakness of that of his adversary, plaintiff must prove the extent of the exception, where he had purchased an entire tract, except a part' previously conveyed to another.</p> <p>7. Same; Taching; Outstanding Title. — One who entered upon land under a deed which did not give him even color of title thereto, is a mere trespasser, and cannot show an outstanding title in his grantor by adverse possession to defeat ejectment.</p> <p>8. Adverse Possession; Continuity; Color. — .Where a plaintiff took possession of the land in controversy as soon as he received his deed conveying title thereto, a defendant, who received the deed under which he claimed the premises thereafter, and ousted plaintiff, cannot rely upon the adverse possession of his predecessor in title, where his deed was not color of title to the land in controversy.</p> <p>9. Same. — To constitute color of title enabling a grantee to rely upon the adverse possession of his grantor, the description therein must be sufficiently certain to enable a surveyor on search or inquiry as to the attendant circumstances to locate the land without reliance upon the claims of the grantee, even though such claims be honestly made.</p>

<p> Ejectment. </p> <p>1. Taxation; Sale; Redemption; Limitation. — Under the provisions of section 2311, Code 1907, an action of ejectment is barred against one claiming under a tax sale, who, during the years 1900-6, turpentined and logged the land, although his predecessor had for many years taken no possession of the land, it being timber land.</p> <p>2. Evidence; Lost Records; Secondary Evidence.- — Where the record of the sale was lost, and no copy of the notice thereof existed at the time of the trial, the court might resort to secondary evidence and permit witnesses who knew the contents of the lost records to testify as to their recollection of its contents, the action being to recover land claimed by defendant under a tax sale.</p> <p>3. Adverse Possession; Jury Question. — Ordinarily, adverse possession is a question to be submitted to and determined by the jury.</p> <p>4. Ejectment; Directing Verdict. — Where the evidence showed that neither plaintiff nor his ancestors had been in possession of the land for thirty years, and that for the defendant showed that his predecessor purchased the same at tax sale, hnd that such predecessor through his licensees had held the land for a longer period than the three year limitation, defendant was entitled to have a verdict directed, the action being ejectment for the land.</p>

'Appeal from Baldwin Circuit Court. Heard,before Hon. A. E. Gamble. Ejectment by 'Norma Aikin. against Benjamin McMillan and ' others. Judgment fqr plaintiff,; and defendants .appeal. The .following documents are referred to in the opinion, other than the map; Patent- executed by the president of the United States: United States of America.

<p>Appeal from Houston Circuit Court.</p> <p>Heard, before Hon. H. A. Pearce.</p> <p>Ejectment by J. L. Ward against Isaiab P. Lane. Judgment for defendant and plaintiff appeals.</p>

Circuit Court. Heard before Hon. S. L. Brewer. Ejectment by S. P. Wright and others against George Sellers, who suggested O. H. Perryman as landlord. Judgment for plaintiffs, and the substituted defendant appeals. Plaintiffs claim as the heirs at law of George V. Shamblee, who died in 1901, without children, but leaving surviving him a Avidow, Avho died in 1912, and brothers, J. A. Shamblee and S. P. Shamblee, and a sister, Mrs. S. P. Wright.

Héarcl before Hon. A. E. Gamble. Detinue by L. M. Johnson against G. A. Miller. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Gaston Gunter. Petition by Tommie Richardson, by next friend, against Rosa Toliver Stephens, to contest a will on the ground that it was not genuine, and was never executed by deceased, and that the said probating of said will be vacated and held for naught, and that the said paper be rejected and held not to be the will and testament of Hannah Chambliss. Decree for complainant, and respondent appeals.

Heard before Hon. John S. Cuetis. Petition by J. A. Donaldson for the probate of the will of J. C. Donaldson, deceased, contested by Ella Posey and another. Prom a judgment for the proponent, contestants appeal. The contest was based on testamentary incapacity, and undue influence. The evidence on this issue is sufficiently stated in the opinion. The will was executed January 25, 1913, and the testator died March, 1913, at the age of 77 years.

<p>Appeal from Madison Probate Court.</p> <p>Heard before Hon. W. T. Lawler.</p> <p>Petition by William H. Watkins to probate the will of D. P. Yeatman, with contest by J. R. Yeatman, From a judgment refusing probate, proponent appeals.</p>

Heard before Hon. E. S. Lyman. Condemnation proceedings by the Alabama Power Company to condemn property of P. L. Carden. From a judgment awarding compensation, the petitioner appeals. Reversed and remanded.

Heard before Hon. Bernard Harwood. Petition, by D. E. McConnell against E. P. Goodwin, as Judge of Probate to recuse himself in a proceeding to establish a public road. From a judgment denying the petition, petitioner appeals. The petition showed that a proceeding was pending in the probate court of Fayette county, filed by the road supervisor in the name of the county, for the establishment of a public road.

Heard before Hon. A. H. Alston. Proceedings by the State, on the relation of Verner, as solicitor, to remove G. B. Worthen from the list of practicing attorneys, and to revoke his license. From a judgment granting the relief prayed, respondent appeals.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. John C. Pugh.</p> <p>Assumpsit by Laura E. Mitchell, as administratrix, against B. Randman. Judgment for plaintiff and defendant appeals.</p> <p>Transferred from the Court of Appeals under Acts 1911, p. 450, § 6.</p>

The Pittsburgh Life & Trust Company sued Cyrus B. Brown, State Insurance Commissioner, for license tax paid upon certain.premiums received from policy holders paid to the home office of the company, and recovered judgment. The State Insurance Commissioner .appealed to the Court of Appeals, where the judgment for plaintiff was reversed and the cause remanded. (10 Ala. App. 614, 65 South. 699.) And plaintiff applies for writ of certiorari.

<p> Assumpsit. </p> <p>1. Bills and Notes; Endorsee; Burden of Proof. — Where it is shown that a bill is put in circulation by fraud, or that it is without consideration, the burden of proving payment of value is cast upon the endorsee.</p> <p>2. Same; Action by Endorsee; Pleading and Proof. — Where the action is by the endorsee of a note, pleas setting up want and failure of consideration and fraud in the inception of the note, present a good defense although not alleging notice to the endorsee of the alleged infirmity.</p> <p>3. Same; Burden of Proof. — Where an endorsee sues upon a note and proves that he purchased in due course of business, before maturity, and for value, the burden shifts to defendant of proving that when the endorsee acquired it, he had knowledge of the infirmities relied upon as a defense, or that he had notice of facts which if diligently followed up would have led to a knowledge of such defect.</p> <p>4. Same; Bona Ficle Holder; Subsequent Notice. — Where one acquires a note in due course of business, and for value without notice of any infirmity or defect, subsequent notice thereof to him or his agent would not be sufficient to defeat the commercial paper.</p> <p>5. Same. — Under section 5011, Code 1907, an endorsee without actual knowledge of the infirmities or defects in the note, but with knowledge of facts, which if pursued, would have led to actual knowledge, was charged with such knowledge.</p> <p>6. Same; Bona Fide Holder; Value. — An endorsee of a note who did not pay money for it, but issued a certificate of deposit, carrying interest, which certificate was immediately negotiated by the endorser, who was also the maker, and ultimately paid by the endorsee, wás in the same position as if it had paid value for the note.</p> <p>7. Same; Certificate of Deposit. — A certificate of deposit by which a bank agrees to pay a sum certain, together with interest thereon, is in effect a negotiable promissory note and commercial paper.</p>

<p>Appeal from Calhoun Circuit Court.</p> <p>Heard before Hon. Hugh D. Merrill.</p> <p>Assumpsit by H. Priebe against the Southern Railway Company. Judgment for defendant and plaintiff appeals.</p> <p>Transferred from Court of Appeals.</p>

<p> Assumpsit. </p> <p>Comities; Limitation of Indebtedness; Constitutional Provision.— Where a county has already exceeded the debt limit as prescribed by section 224, Constitution 1901, it is not authorized under section 215, Constitution 1901, to levy a special tax to pay debts thereafter created in erecting a courthouse and constructing public roads, and for the accumulation of a fund in contemplation of future expenditures for the same purpose.</p>

<p>Appeal from Lawrence Circuit Court.</p> <p>Heard before Hon. D. W. Speake.</p> <p>Assumpsit by B. F. Britnell against W. D. Smith and others. Judgment for defendant and plaintiff appeals.</p> <p>Transferred from Court of Appeals.</p>

Heard before Hon. E. C. Crowe. Assumpsit by John ganders against J. D. Head, to recover money paid on a real estate purchase. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals.

Heard before Hon. Hugh D. Merrill. Assumpsit, by H. M. Salvo against Cora E. Abell, begun by attachment which was levied on two bales of cotton to which J. C. Wilson & Company interposed a claim. The cause was originally tried in the justice court, and was brought to- the circuit court by appeal, where judgment was rendered for claimants, from which judgment plaintiff appeals. Transferred from the Court of Appeals under Acts 1911, § 6, p. 449.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. E. C. Crowe.</p> <p>Assumpsit by the Ben F. Barbour Plumbing & Electric Company against the Enslen Development Company. Judgment for plaintiff and defendant appeals.</p>

Heard before Hon. E. C. Crowe. Action by Belton Gilreatb as trustee, against Peyton Norvell and others on a guaranty. Judgment for plaintiff and defendants appeal.

Heard before Hon. Bernard Harwood. Assumpsit by F. L. Varnon against J. R. Nabors. From a judgment for defendant, plaintiff appealed to the Court of Appeals, whence the cause was transferred to the Supreme Court. The action was upon a promissory note for $50. Plaintiff recovered judgment in the justice court, but on appeal to the circuit court there was jury and verdict for defendant.

Heard before Hon. John H. Miller. Action by Martin L. Easter, as administrator of the estate of Margaret Easter, against the George Life Insurance Company of Macon Georgia, for the amount of the policy issued on the life of his intestate, whose death is alleged to have been caused independently and exclusively of all other causes through external, violent, and accidental means, while a passenger in or on a public conveyance provided by a common carrier for passenger service.

Heard before Hon. C. B. Smith. Assumpsit by the Hobson-Starnes Coal Company against the Alabama Coal & Coke Company, with garnishment in aid thereof to the Illinois Central Railroad Company. From an order setting aside the judgment rendered against the garnishee, plaintiff appeals. Transferred from Court of Appeals.

Heard before Hon. H. A. Sharpe. Action by the L. S. Meharg Liquor Company against the Washington Hotel Company, and the individuals composing the firm, amended by striking out the partnership and suing the persons individually. Judgment for defendants and plaintiff appeals.

Heard before Hon. W. W. Hakalson. Action by Mat Edmonds against J. B. Stearnes and others, sureties on.his bond as Deputy Tax Collector. Judgment for plaintiff, and defendants appeal. The complaint is as follows: Plaintiff claims of defendants $5,000 as damages for the. breach of the condition of a bond made by defendants to one J. F. Price, now dead and not sued, on October 6, 1905, in the said sum of $5,000, with condition.

<p>Appeal from Marshall Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Action by the Georgia Fire Insurance Company against H. R. Jackson and others. Judgment for plaintiff as against said Jackson and he appeals.</p>

Heard before Hon. J. J. Curtis. Action by Wiley Christian against the Stith Coal Company, for breach of contract to mine coal. The verdict was directed for plaintiff and defendant appeals.

<p> Assumpsit. </p> <p>1. Evidence; Parol; Ambiguous Instrument. — Where a note was ambiguous as to whether .the signers signed as individuals or as agents of the corporation, parol evidence was admissible to show in what capacity they signed.</p> <p>2. Same; Undisclosed Intention. — Notwithstanding the note sued on was ambiguous as to the character in which the makers signed, whether individually or as agents of the corporation, this did not render admissible their testimony as to their undisclosed intention in signing.</p> <p>3. Same; Self-Serving Declaration. — Conversations among the signers of a note in the absence of the payee was not binding on him, and were not admissible in evidence where they formed no part of the res gestas of the execution of the note.</p> <p>4. Same; Negative. — Except as it may tend to contradict plaintiff’s evidence tending to show that the makers of the note signed the same individually, the testimony of the signers that they never heard any of the signers say that they signed the note individually, was not admissible.</p> <p>5. Same; Parol; Rules. — Where parol evidence was admissible to show the capacity in which the makers of a note signed it, such evidence was governed by the general rules of evidence as to mere opinions, conclusions, motives, intentions and self-serving declarations.</p> <p>0. Principal and Agent; Liability of Agent. — An agent signing a note as such, but not showing any intention to bind the principal, except by the use of mere words of description is personally liable.</p> <p>7. Agriculture; Fertilizer; Tags. — In an action on a note given for fertilizer, where there was no evidence that it was not tagged when sold, it was error to admit evidence that it was not tagged, relating to a time long after the seller had lost control of it.</p>

Heard before Hon. W. W. Haralson. Assumpsit by J. A. Baker against R. H. Skelton. Judgment for plaintiff and defendant appeals. Transferred from Court - of Appeals.

Heard before Hon. W. L. Parks, Special Judge. Action by Riley & Johnson, a partnership, against B. C. Stewart, for deceit in the sale of horses, and as-, sumpsit. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6 of Acts 1911, p. 450.

Heard before Hon. J. J. Curtis. Action by N. B. Robinson as administrator against tbe Illinois Central Railroad Company and others. Judgment for plaintiff, and defendants appeal. The matter as to the removal sufficiently appears. Charge I is as follows: If the jury should find from the evidence that plaintiff is entitled to recover damages, and that a small sum or nominal damages would be sufficient punishment of defendant, then the jury should so find.

Heard before Hon. John H. Miller. .Action by W. D. Smith against the Western Union Telegraph Company for delay in delivery of a message. From a judgment for-plaintiff, defendant appealed to the Court of Appeals, from which the case is transferred. The facts sufficiently appear from the opinion.

P. A. Crane bad judgment against tbe Central of Georgia Railway Company in tbe lower court, and on appeal to tbe Court of Appeals sucb judgment was reversed and tbe cause remanded, and sbe brings certiorari to review and revise tbe judgment and opinion of said Court of Appeals. (See O. of Ga>. Ry. Go. v. Grane, 11 Ala. App. 249, 65 South. 866.)

Heard before Hon. S. L. Brewer. • Action by the Gilliland Mercantile Company, a partnership, in the name of the individual members, against Pond Bros., and the individual members as partners and individuals for the conversion of a bale of cotton, and for destroying a lien on such cotton. Judgment for defendants, and plaintiff appeals.

Heard before Hon. É. C. Crowe. Action by Wade C. Welch against tbe Evans Bros. Construction Company. Judgment for defendant, and plaintiff appeals.

Heard, before Hon. H. A. Pearce. Action by Howard Stephenson against the Central of Georgia Railway Company for damages for injury to his hand. Judgment for plaintiff, and defendant appeals. Affirmed. The facts sufficiently appear from the opinion.

Heard before Hon. Thomas W. Coleman, Jr. Action by J. H. B. Lumpkin against T. D. Maybank in trover, case, and assumpsit. Judgment for plaintiff, and defendant appeals. Transferred from- tbe Court of Appeals under Acts 1911, p. 449, § 6.

Heard before Hon. J. J. Curtis. False imprisonment and malicious prosecution by J. A. Devaney against -the Sloss-Sheffield Steel & Iron Company, growing out of prosecution for trespass after warning. There was judgment for plaintiff and defendant appeals.

Heard before Hon. J. J. Curtis. Action by Marion Shirley, administrator, for damages for the death of her intestate, against the Southern Railway. Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. William M. Walker. Action by H. H. Stovall against the Corey Highlands Land Company, for injuries resulting from a collision. Judgment for defendant and plaintiff appeals.

Heard before Hon. E. C. Crowe. Action by Prank P. Barker against tbe Tennessee Coal, Iron & Railroad Compány, for injuries received while in its employment. Judgment for defendant, and plaintiff appeals. The action is grounded as stated in the opinion.

Heard before Hon. J. C. B. Gwin. Action by W. F. Laird against tbe Central Foundry Company, for damages for an assault and battery. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals.

Heard before Hon. J. C. B. Gwin. Action by W. E. Benns against the Alabama Terminal Railroad Company, for damages. Judgment for plaintiff, and defendant appeals.

Heard before Hon. D. W. Speake. Action by Reba Powers against George D. Williamson, for damages suffered in an automobile accident. Judgment for defendant, and plaintiff appeals.

Heard before Hon. J. J. Curtis. Action by W. L. Guttery, as administrator of Baxter Guttery, deceased, against tbe Northern Alabama Railway Company for damages under the homicide statute for the death of decedent. From a judgment for plaintiff, defendant appeals.

' Heard before Hon. William M. Walker, Special Judge. Action by H. T. Moore against C. S. Whitmire for breach of contract and for deceit. Judgment for defendant, and plaintiff appeals.

<p> Trover. </p> <p>1. Appeal and Error; Harmless Error; Evidence.-. — Where the action was trover for certain mules, and plaintiff asked a witness as to tbe reasonable value thereof at the time plaintiff’s mortgagor bought them from defendant, and witness stated that the value was not very much because they were too young and unbroken to be able to work, the answer was favorable to defendant, and as to defendant, was harmless, if error.</p> <p>2. Same. — Where, in rendering their verdict, the jury accepted defendant’s estimate of the value of the property, • defendants were not prejudiced by the ruling of the court on the admission of evidence as to value.</p> <p>3. Same. — Where a witness testified in detail as to the character of the mules, defendants, were not prejudiced by the court permitting the witness to answer a question calling for his conclusion as to whether the mules were large enough to work when they were purchased from defendant by plaintiff’s mortgagor.</p> <p>4. Same; Revieio; Necessity of Exception-. — The appellate court will not review the rulings on evidence to which no exception appears in the record to have been taken.</p> <p>'5. Same; Record Governing. — Where, as a return to the writ of certiorari a bill of exceptions is sent up which differs from the one contained in the transcript, the one sent up under the writ of certiorari will be regarded as the correct bill.</p> <p>6. Same; Presumptions. — Where a bill of exceptions does not set out all the evidence on which the case was tried, it will be presumed ou appeal that there is other evidence justifying the rulings of the trial court.</p> <p>7. Same. — Although the bill of exceptions recited that it contained all the evidence in the case, yet where it affirmatively appears that a certain mortgage was offered in evidence and had been omitted from the bill, it will be presumed on appeal that the court’s action in giving and refusing charges relative to such mortgage was correct.</p> <p>8. Trover and Conversion; Measure of Damages. — Ordinarily in trover, the measure of damages is the value of the property at the time of conversion, but if the evidence shows fluctuation in value after the conversión, the jury has the discretion to fix the value at the higher or highest price at any time between the conversion and the date of trial.</p> <p>9. Same; Mortgages. — Where plaintiff’s title in trover is bdsed on a chattel mortgage, the measure of damages is the amount of the mortgage debt and interest, provided it does not exceed the value of the property.</p> <p>10. Evidence; Value; Different Periods. — It is competent in proving the value of property at a certain time to show its value at a prior and subsequent time in the same market within reasonable limits.</p> <p>11. Same; Motive. — On an issue as to the value of certain mules, sold by defendant to plaintiff’s mortgagor, the question as to whether defendant in fixing the price of the mules to a negro took into, consideration that they were being sold to a negro on time, was. objectionable as calling for a mere uncommunicated motive or reason, in making the price.</p> <p>12. Same; Opinion; Relevancy. — On the issue as to value of certain property, a question calling for the opinion of a witness as to what some other person would know, was properly excluded.</p> <p>IS. Bill of Exception; Incorporation of Papers try Reference; Description. — Where the bill of exceptions recited “plaintiff here introduced a mortgage which reads as follows; (the clerk will here set out said mortgage) ” ; and also “defendant here introduced á mortgage’ which is as follows; (the clerk willliere set the same out)”, the references therein contained were insufficient, and justified the clerk in omitting the mortgages from the bill of exceptions; the rule being that when a document is sought to be made a part of a bill of exceptions by reference and not by copy, it must be so described that a succeeding clerk can readily and with certainty know what document or paper is referred to, without room for mistakes, thus necessitating a description of the document by its date, amount, parties, or other identifying features.</p>

Heard, before Hon. Ti-iomas W. Coleman, Jr. Transferred from Court of Appeals under the act creating said court. Action by A. B. Quennelle against Mrs. S. A. Blackmon for damages for breach, of a covenant of warranty. Judgment for plaintiff and defendant appeals.

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. J. C. B. Gwin.</p> <p>Action by A. M. Finley against the Woodward Iron Company and another for damages for injuries to plaintiff as licensee. Prom a judgment for plaintiff, defendants appeal.</p> <p>Tlie fifth count is as follows: “Plaintiff claims of defendant the further sum of $25,000 damages, and avers defendants Woodward Iron. Company, a corporation, and the said Arthur Williams, were engaged in operating an ore mine near Bessemer, Jefferson county, Ala., on, to wit, October 17, 1912, and had and used in their business a system of tram cars propelled by steam power running in and out of the said mine of defendants, and had in their employment an engineer or servant to operate said steam engine and tram cars in defendant’s said mine, who controlled and managed the operation of the said tram cars in defendant’s said mine by means of a cable connected and attached to the said tram cars and a drum, which said drum was turned and operated by said steam power on the outside of said mine, and on said date aforesaid this plaintiff was on the premises of defendants in one of the said tram cars of defendant’s while the same was descending the* slope in said mine, under the license of defendants, and while in said tram car and on his way in said mine to help or perform work for defendant’s contractor, Yeacher Head, said engineer or servant of defendants, and who was acting within the scope of his authority as such engineer and in charge and control of the said engine and tram cars, wantonly, wilfully, or intentionally wrecked and derailed said tram cars upon which plaintiff was riding into said mine, and plaintiff avers that, by reason of said wanton, willful, or intentional act of said engineer, this plaintiff’s body was badly bruised, one of his legs was broken and crushed, he was greatly shocked from which he suffered great mental and physical pain, his leg was permanently damaged and injured, and the capacity of the same decreased and rendered useless to plaintiff for the balance of his life, he lost time from his employment, he has been rendered, less liable to earn money by his labor, the only means of his support, he had to pay large sums for nursing and medical attention, and made to go lame and halt the remainder of his life, all to his great damage as aforesaid.</p>

Heard before Hon. D. W. Speaks. Action by W. H. Tedder against tbe Stouts Mountain Coal & Coke Company, for damages for creating a nuisance. Judgment for plaintiff and defendant appeals. Transferred from tbe Court of Appeals under section 6 of tbe Acts of 1911, p. 449.

Heard before Hon. Htjgi-i D. Merrill. Action by Peggie Kilgore and others, as administratrices of R. L. Kilgore, deceased, against the ConnorsWeyman Steel Company for damages for the death of their intestate, alleged to have occurred while in the service or employment of defendant. Judgment for plaintiff and defendant appeals.

Heard before Hon. Thomas W. Wert. Action by George Kyker, pro ami, against H. H. Hitt, for damages for injuries suffered -while in Ms employment. Judgment for defendant, and plaintiff appeals.

Heard before Hon. Hugh D. Merrill.' Action by W. T. Howell against the Southern Railway Company for damages for injuries sustained from the explosion of a torpedo on one of its sidetracks while loading lumber on a car. Judgment for defendant, and plaintiff appeals.

Heard before Hon. J. J. Curtis. Transferred from Court of Appeals. Action by Eliza Herron against tbe Southern Railway Company for damages for carrying her beyond her destination as a passenger. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Hugh D. Merrill. Action by F. M. Adams against the Central of Georgia Railway Company for damag’es for being put down at the Avrong station. Judgment for defendant, and plaintiff appeals.

Heard before Hon. J. J. Curtis. Action for false imprisonment by S. G. Deason against John M. Gray, as sheriff, and another, on his official bond. Prom a judgment for defendants, plaintiff appeals. The complaint contained a number of counts, most of which were in Code form, and the facts of which sufficiently appear from the opinion.

Heard before Hon. W. W. Haralson. Action by Joe Bynum against Joe L. Jones for assault and battery. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals. A former report of this case may be found reported as Bynum v. Jones, 177 Ala. 481, 59 South. 65.

<p>Appeal from Morgan Circuit Court.</p> <p>Heard before Hon. D. W. Speake.</p> <p>Trover and conversion by S. N. Sherman against the H. H. Hitt Lumber Company. Judgment for plaintiff, and defendant appeals.</p>

Heard before Mon. Joi-in H. Miller. Action by Mary J. Davis against the Drennen Company Department Store for damages to person and property. Judgment for defendant on demurrer, and plaintiff appeals. The complaint contained two counts, one for simple and the other for wanton negligence.

Heard before Hon. J. J. Curtis. Action by Dan L. King aganst John M. Gray and others, as his official bondsmen, for damages for false imprisonment. Judgment for defendant and plaintiff appeals.