Volume 190 — Alabama Reports

Heard before Hon. William E. Foet. George De Wyre was convicted of murder in tbe second degree, and sentenced to 35 years in tbe penitentiary, and be appeals. Tbe following charges were refused to defendant: (16) Defendant’s good character alone, when taken in connection with all tbe other evidence in tbe case, if proven to your satisfaction, may generate a reasonable doubt of defendant’s guilt, and demand an acquittal at your bands.

Heard before Hon. John T. Lackland. John Thomas Autrey was convicted of murder, and he appeals. The motion to quash was based on three grounds: (1) Because there appears upon said copy of the venire served upon defendant the name of Elvin G. Adams, and no such person is drawn and summoned. (2) Same as to Biggie Williams. (3) Same as to Wm. H. Mobley.

Heard before Hon. William E. Fort. J. W. Moss was convicted of murder in the first degree, and he appeals. The facts sufficiently appear in the opinion. The following were the charges refused. (36) If tbo’y is one single fact proven to the satisfactory of the jury which is inconsistent with defendant’s guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit.

Heard before Hon. W. W. Pearson. Scrapp Agee and Leon Kitchen were indicted for murder. From a judgment of conviction, they appeal. The defendants were jointly indicted for murder in the first, degree. After arraignment and plea of not guilty, they moved for a severance of their trial, which was granted, and a certain day was fixed for the trial of this cause.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Beauregard, alias Bory Forman was convicted of murder in the first degree, and he appeals. The evidence for the state tended to show a conspiracy between this defendant and his codefendant to take the life of Carney Compton, and the killing of said Compton pursuant to this conspiracy by the defendant G. B. Forman.

Heard before Hon. J. C. B. Gwin. Action by Mrs. Mattie Boston, as administratrix, against the Southern Iron & Steel Company for damages for the death of her intestate. Judgment for plaintiff, and defendant appeals.

Heard before Hon. E. C. Ckowe. Action by the Fox Typewriter Company against A. A. Gambill, commenced in trover, to which is added by amendment, the common counts, and a count for breach of a contract of guaranty. Judgment for plaintiff and defendant appeals.

Heard before Hon. John H. Disque. Action by Drew B. Patterson against Jim Snead, begun in detinue and trover, and amended by adding counts for damages for the removal of the house. Judgment for plaintiff, and defendant appeals to the Court of Appeals, the cause being transferred from that court to the Supreme Court under the act creating the Court of Appeals.

Heard before Hon. J. E. Blackwood. Action by Roscoe S. Maxwell by next friend, against the Louisville & Nashville Railroad Company, for damages for eviction from a train, and for putting him off at wrong destination. Judgment for plaintiff, and defendant appeals to the Court of Appeals, the cause being transferred to the Supreme Court under the act creating the Court of Appeals.

Heard before Hon. C. B. Smith. Action by E. M. Williams against the Birmingham, Ensley & Bessemer Railroad Company, for damages for permitting property to be destroyed by fire. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals.

Heard before Hon. John H. Disque. Action by Leonie Bessiere, administratrix, against the Alabama City, Gadsden & Attalla Railway Company. Prom a judgment for plaintiff, defendant appeals.

Court. Heard before Hod. D. WCSpeake.1 Action by Geraldine Jones, administratrix, against the Western Union Telegraph Company, for damages for the death of her intestate, by electrocution. Judgment for plaintiff and defendant appeals.

Heard before Hon. Henry B. Poster. Trover by Walter McDougal against J. P. Alston and others. Prom a judgment for defendants, plaintiff appealed to the Court of Appeals, an'd the cause was transferred to the Supreme Court. ■ Defendant set up the taking of the property under the power of a validly executed mortgage to them by defendant which was unpaid and past due at the time of taking of the property.

Heard before Hon. D. W. Speaks. Action by May M. Miller, as administratrix, against tbe town of Athens for damages for the death of her intestate. Judgment for plaintiff, and defendant appeals. The pleadings and the facts sufficiently appear in the opinion.

Heard before Hon. W. W. Haralson. Action by Ida Johnson Vincent against Nashville, Chattanooga & St. Louis Railway. Judgment for plaintiff, and defendant appeals. The following is the testimony of the plaintiff: I am the plaintiff in this case. Am 19 years of age,' and reside with my father and mother at Boaz in this county. We live not far from the Mann Hotel.

Heard before Hon. E. C. Ceowe. Action by H. C. Perrine against tbe Southern Bitulithic Company in Birmingham, for damages for loss of the society and service of his wife caused by injuries to her from falling into a hole in the street or sidewalk of said city, which was being repaired under contract by the defendant company. Judgment for defendants, and plaintiff appeals.

■ Heard before Hon. J. C. B. Gwin. Transferred from Court of Appeals under the act creating said court. Action by Ida McMicken against L. M. Crawford and others, for damages. Judgment for plaintiff, and defendants appeal.

Morgan. Law and Equity Court. Heard before Hon. Thomas W. Wert. Action by Nina L. Moran, as administratrix, etc., against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. The following is the map referred to in the opinion:

Heard before Hon. E. C. Ckowe. Action by Mutual Henderson, as administratrix, against tbe Tennessee, Coal, Iron & Railroad Company, for the death of her intestate, Nathaniel Henderson. Judgment for defendant, and plaintiff appeals.

Will Jones had judgment against the Atlantic Coast Line Railway Company, and on appeal to- the Court of Appeals, the judgment is affirmed. See 9 Ala. 499, 63 South. 693. The Atlantic Coast Line Railway Company brings certiorari to review the judgment and decision of the Court of Appeals.

<p>Appeal from Washington Circuit Court.</p> <p>Heard before Hon. John T. Lackland.</p> <p>Action by W. T. Creagh against Harry Bass, for the ‘conversion of certain timber. Judgment for defendant and plaintiff appeals.</p>

Heard before Hon. J. C. B. Gwin. Action by J. A: Simpson against tbe Birmingham Railway, Light & Power Company, for damages for personal injury. Judgment for plaintiff, and defendant appeals.

Heard before Hon. John T. Lackland. Action by Woodie S. Knight against the Tombigbee Valley Railroad Company for damages for injury suffered while a passenger. Judgment for defendant and plaintiff appeals.

Heard before Hon. Gaston Gunter. Action by M. G. Baker against the Montgomery Light & Traction Company for injuries received while attempting to board a car. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Saffold Berney. Action by Robert E. Bouchard against the Louisville & Nashville Railroad Company for damages for setting out fire. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear from the opinion of the court.

Heard before Hon. J. J. Curtis. Action by Nathaniel C. Martin, as administrator of the estate of Fred Martin, for damages for the death of his intestate. Judgment for plaintiff, and defendant appeals.

Heard before Hon. C. B. Smith. Action by Nate Drennen, as administratrix, against tbe Birmingham Bailway, Light. & Power Company, for damages for the death of her husband. Judgment for plaintiff, and defendant appeals. The first count alleges the negligence as follows: Plaintiff avers that said car ran upon or against said vehicle as aforesaid, and caused said intestate’s death as aforesid, by reason and as a proximate consequence •of the negligence of defendant.

Heard before Hon. S. L. Brewer. Action by Mrs. L. H. Thompson, administratrix, etc., against the Alexander City Cotton Mills Company. Prom a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. The action is to recover damages for the wrongful death of plaintiff’s child, a boy eight years of age. The boy was killed by falling into a ditch or drain that at the time contained hot water.

- Heard before Hon. H. A. Sharpe. Action by John B. Ivey against the City of Birmingham- for damages suffered by reason of a ditch being left open and unguarded. Judgment for defendant, and plaintiff appeals. Charge 1, refused to plaintiff, is as follows: A city, by bringing a highway within its corporate limits and leaving it open for public travel, becomes bound to use ordinary care to maintain it in a reasonably safe condition for such travel.

Heard before Hon. A. H. Alston. Action by John K. Fuller against the Lanett Bleaching and Dye Works. From a judgment for defendant, plaintiff appeals. Plaintiff, while engaged in the services of defendant, as a tender of its dye cans, was injured by the fall of a freight elevator used as part of defendant’s dye works ’ for the raising and lowering of bales of cotton to qnd from the first and second floors of its building.

Heard before Hon. Saffold Berney. Action by Edward Hughes, Jr., against the Mobile Light & Railroad Company, for damages to him as a passenger. Judgment for plaintiff, and defendant appeals.

Heard before Hon. John H. Miller. Action by James W. Colbert against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals. The substance of the complaint sufficiently appears, as does plea 3, from the opinion of the court.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. John H. Miller. ■</p> <p>Action by H. C. Russey against the Alabama Great Southern Railroad Company for damages for injuries received in a crossing accident. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Walker Circuit Court.</p> <p>Heard before Hon. J. J. Curtis.</p> <p>Action by Avery & Son, a partnership, composed of S. M. Avery, and Will Avery, against the Illinois Central Railroad Company for damages to cattle while being transported. Judgment for plaintiff, and defendant appeals.</p>

Heard before Hon. Charles W. Ferguson. Action by Mary A. Jones against R. L. Polk & Company, and another, for libel and slander. Judgment for defendants, and plaintiff appeals.

Heard before Hon. C. C. Nesmith. Action by Braxton Bragg Comer against B. M. Starks and others for libel and slander. Held: and which was held; that said publication was made by said defendants to the electors of Alabama, and for the purpose of advising the electors of Alabama as to the fitness and qualification of plaintiff to fill said office for which he was a candidate at the time of such publication as aforesaid ; that said defendants, before…

Heard before Hon. Jopin H. Miller. Action by William Standifer, Jr., by next friend, against the Seaboard Air Line Railway Company for damages for carrying him beyond his point of destination. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under the provisions of the act creating such court.

Heard before Hon. Charles W. Ferguson. Action by Mrs. J. Broda against the Central of Georgia Bailway Company, for damages to goods. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under the act creating said court.

Heard before Hon. Hugo L. Black, Special Judge. Action by Mrs. Annie May Hass against the Birmingham Railway, Light Power Company for damages caused by the company carrying her beyond her distination. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals.

<p>Appeal from Montgomery Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Action by -Lula Woods against George Dozier for damages for being struck by an automobile. Judgment for plaintiff in tbe sum of $150, and defendant appeals. Transferred from Court of Appeals.</p> <p>Tbe first count states that defendant was in,charge of an automobile, and did negligently run said automobile upon or against plaintiff, wbo was then and there on tbe Mt. Meigs road, a public road or highway in said county, and by reason of said negligence, and as a proximate consequence thereof, plaintiff received personal injuries, which are set out in extenso. Count 2 states that defendant was engaged in operating an automobile in the county of Montgomery and state of Alabama, and, while so operating said automobile upon or along the Mt. Meigs Road in said county, defendant was so negligently operating said automobile that by reason thereof, and as a proximate consequence thereof, said automobile collided with plaintiff!, who was then and there upon said Mt. Meigs Road, a public road in said county, and by reason thereof plaintiff! received the following personal injuries, which are set out. Count 8 states the same facts as count 1, but with the averment that defendant did wantonly or willfully run said automobile upon or against plaintiff. The demurrers raise the question discussed in the opinion.</p>

<p> Delay in Delivery of Telegram. </p> <p>1. Telegraphs and Telephones; Messages; Delay; Damages. — Where the action is in tort for delay in delivering a telegram, a plaintiff cannot recover for mental pain and anguish unless there is a right of recovery aside from such injuries.</p> <p>2. Same; Oomplaimt; Pleading. — A complaint alleging that defendant did not promptly deliver a death message sent to the plaintiff, but the same was delayed for one day, and as a proximate consequence of said negligence, plaintiff suffered certain damages which are set out, and lost the sum paid to defendant for the message, and a similar count based on the same state of fact, but alleging wanton or intentional negligence, show loss of the toll paid, aside from the mental anguish, and. were not demurrable.</p> <p>3. Same; Evidence. — The evidence examined and held sufficient to authorize a recovery by plaintiff of mental pain and anguish from the failure of the telegraph company to deliver a death message.</p> <p>4. Trial; Strilcing Out Evidence; Demurrer. — Where plaintiff’s evidence was relevant and tended to establish at least some if not all, of the material allegations of plaintiff’s complaint, it was not error to '■efuse a motion made by defendant at the conclusion of plaintiff’s evidence to exclude all of the evidence, on the ground that plaintiff had failed to make out a case; the better practice being either to demur to the evidence or not offering any testimony to ask for a directed verdict.</p>

Heard before Hon. J. C. B. Gwin. Action by J. M. Salter against G. W. Fox for damages for breaking his close. Judgment for defendant, and plaintiff appeals.

Heard before Hon. John H. Miller. Action by Louis Prosch and others against the SlossSheffield Steel & Iron Company, for damages to plaintiff’s residence by the explosion of dynamite. Judgment for plaintiffs, and defendant appeals.

Heard before Hon. J. C. B. Gwin. Action by W. W. Frazier against the Woodward Iron Company. From a judgment for plaintiff, defendant appeals. Count B is as follows: Plaintiff claims of defendant $1,000 as damages for that heretofore, to-wit, about November 20, 1911, defendant entered into a contract with plaintiff which was in words and figures as follows: “Woodward, Ala., Nov. 20, 1911.

Heard before Hon. A. H. Alston. Action by S. H. Wooddy against E. H. Berry for deceit in the sale of laud, and for a breach of contract of sale. Judgment for defendant and plaintiff appeals.

Heard before Hon. Gaston Gunter. Assumpsit by the Hubbell Publishing Company against Gustave F. Mertins. Judgment for plaintiff and defendant appeals. ’Transferred from Court of Appeals under the authority of the act creating such court. For former appeal in this case see 4 Ala. App. 500, 58 South. 679, where the facts fully appear.

Heard before Hon. Saffold Berney. Assumpsit by James L. Coleman against the O. H. Broun, Jr., Timber Company, a-partnership, consisting of O. H. Broun and G. T. Loper. Judgment for plaintiff and defendant Loper alone appeals.

Heard before Hon. Saffold Berney. Action by tbe Naylor Lumber Company against the American Tie & Timber Company, for breach of contract. Judgment for plaintiff and defendant appeals.

<p> Action on Insurance Policy. </p> <p>1. Insurance; Action on Policy; Misrepresentation; Pleas. — Pleas which allege that the insured represented that his health was good from infancy, when, in fact, it was not always good, and that he was in failing health due to a disease unknown to the insurei*, and pleas which otherwise failed to show with certainty wherein the alleged representations were false, were subject to demurrer.</p> <p>2. Same. — A plea alleging that the insured represented his health to be good, when in fact, he was suffering from a disease unknown to the insurer, which increased the risk, is self-contradictory, since if the insured did not know the nature of the disease, it could not know that it increased the risk, and courts will not enter upon such wide inquiries.</p> <p>3. Pleadings; Requisites; Certainty. — All matter pleaded ought to be clearly and distintly stated so that it may be fully understood by the adverse party, and by the jury and the court.</p> <p>4. Appeal and Error; Harmless Error; Pleading. — Where other pleas set up the same defense, and under them defendant could introduce all the evidence which would be admissible under those held bad, error in sustaining demurrer to some of such pleas was harmless.</p> <p>5. Chwge of Court; Reference to Pleading. — Where demurrers have been sustained to some of the pleas, a charge asserting that if defendant proved any of its pleas plaintiff could not recover was properly refused.</p> <p>6. Insurance; Evidence; Hearsay. — Hearsay evidence that the mother of the insured had died with tuberculosis is not admissible.</p> <p>7. Same; Misrepresentations. — Where the defense to an action on a life insurance policy was misrepresentations by insured, it was not error to exclude evidence of the poor conditions of his health, of the fact that he was engaged in an occupation exposing him to tuberculosis, or was in a weak condition after the policy was issued, in the absence of an offer to show that such condition existed at the time the application was made.</p> <p>8. Same. — Where the defense was fraudulent misrepresentations in procuring a life insurance policy, evidence that insured had written a letter claiming- indemnity on the ground of illness under an accident insurance policy, and that on such application a physician would have been consulted, raised collateral issue where it was not conceded that insured had such a policy or made a claim thereunder, and was therefore inadmissible.</p> <p>9. Appeal and, Error; Review; Questions Presented; Record — • Where the record showed that a notice of claim on an accident policy had been received by the witness, but witness did not know that it was sent by the insured, and this was followed by directions to the clerk to set out the claim in full, and the clerk showed that it had never been filed with him, error in the rulings as to the claim for indemnity is not so presented as to be reviewed.</p> <p>10. Evidence; Handwriting; Comparison; Disputed Standard. — • Where the signature of neither document was admitted, conceded, or proven without dispute, an expert witness cannot testify as to the similarity or identity of the handwriting in the two documents.</p>

<p> Action on Insurance Policy. </p> <p>• 1. Insurance; Accident; Action; Pleading. — Where the action is on an accident policy, a complaint setting out that part of the policy sued' on showing the consideration, and the promise of which a breach was alleged, .and averring generally that plaintiff complied with all the provisions of the contract, is sufficient; it not being necessary to set out all the conditions precedent to a recovery.</p> <p>2. Appeal and Error; -llevieio; Presumption. — Where the record does not affirmatively show that the court disposed of defendant’s demurrers before entering a default judgment, it will be presumed on appeal that the demurrers were waived and no ruling thereon insisted upon.</p>

Heard before Hon. Armstead Brown. Assumpsit by Mrs. H. T. Gilmer against the Capital' Securties Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals. Tbe action was on the common counts. There was quite a number of pleas filed which are not deemed necessary to be here set out, as is indicated by the opinion. The controversy was over certain sums paid to- defendant by plaintiff under a home purchasing investment contract.

Heard before Hon. H. A. Sharpe. Assumpsit by the Hopkinsville Milling Company against J. C. B. Gwin and others. Prom a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals. The action was for breach of an agreement to buy 1,000 barrels of flour, to be shipped at a reasonably postponed date to be selected by defendant.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Assumpsit by the American Can Company against Henry Vandiver. Judgment for plaintiff, and defendant appeals.</p>

Heard before Hon. Armstead Brown. Action by tbe First National Bank of Montgomery against the Montgomery Iron Works, defendant, .and J. W. Dimmiek and others, garnishees. Judgment for the garnishee named, and plaintiff appeals. Plaintiff recovered judgment against defendant and sued out garnishment in aid of the judgment to J. W. Dimmiek, A. M. Baldwin, and G. W. Craig, on the theory that they were indebted to said defendant on stock subscriptions.

Heard before Hon. Gaston Guntee. Action by the city of Montgomery against the county of Montgomery to recover its portion of the alleged road and bridge fund set aside by the county of Montgomery for that purpose, Judgment for plaintiff, and defendant appeals.

Heard before Hon. John T. Lackland. Action by John H. Minge against W. C. Clark and others for breach of contract. From a judgment for defendant, plaintiff appeals.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. John C. Pugh.</p> <p>Action by the Alabama Fuel & Iron Company against the Alabama Fidelity & Casualty Company and another. Judgment for plaintiff, and defendant Alabama Fidelity & Casualty Company appeals.</p> <p>The following is the contract between Banks and the fuel and iron company:</p> <p>This contract and agreement, made and entered into on this the 4th day of October, 1911, by and between the Alabama Fuel & Iron Company, a corporation, party of the first part, and R. G. Banks, party of the second part, witnesseth: That the party of the first part agrees to allow the party of the second part to handle,-its coal--in the city of- Montgomery,. ¿Alabama, and the party of the second.part.agrees to handle such coal, upon the following terms and conditions: (1) The party of the first part agrees to ship coal in car load lots, consigned to the party of the second'part, .as its agent in the city of Montgomery, Ala., in such quantities as is warranted by the trade in said city, and as the output of its mines and its ability to secure cars from the--railroad company justifies. (2) The party of the second part agrees to use his best1 efforts to- the end of selling as much of the coal of the party of the first part as he can, and to account as the agent of the party of the first part, both in selling such coal and in accounting therefor, and in accounting for the proceeds thereof. Each shipment of coal made by the party of the first part shall be accompanied with an invoice; and it is understood and agreed that the party of the second part shall.not sell any of said coal at a price less than the price as shown on said invoice, plus freight and reasonable cost of handling after the arrival in Montgomery, except that small portion, not to exceed 10 per cent, of said coal, which, through process of handling, has become too small in size to be classed as nut or lump coal, which said party -of the second part has, necessarily, to sell- at a reduced price. He is to keep an accurate account showing the amount of coal sold, to whom sold, the price paid therefor, - and the sum collected thereon; and, is to. render monthly statements on or before the 5th day .of each month, showing the amount of such sales, and paying the party of the .first, part, on or before the 20th of each month, for all .coal,shipped.to.the. party of the second part up to the .first day .of that same month, except in such cases as may be covered by special, agreement in writing between said p.arties. All sums of. money which he collects over and above said sum per, ton and, all accounts to be his commission or .compensation for acting as agent of the party of the first part in .selling such coal. (3) It is further understood and agreed that.all coal of the party of the first part which is placed in the yards of the party of the second part shall be kept separate from any coal-belonging to the party of the second part, to any other person, firm or corporation; and that such coal so kept separate shall be marked by board or other designation showing that it is coal of the party of the first part. (4) It is distinctly understood and agreed that the party of the second part has no interest of any kind in and to the coal which he agrees .to handle for the party of the first part, except such amount as he collects for each ton of coal over and above the amount at which said coal was invoiced by the party of the first part to the party of the second part; and that the coal, the proceeds and accounts are and shall remain the property of the party of the first part until settlement is made with the party of the first part; and the party of the second part agrees and binds himself to hold such coal and such, proceeds, and such accounts as the. property of and in trust for, and as the agent of the party of the first part. (5) It is further agreed and understood that, the party of the first part at any time may call for a- stock of its coal on hand to be taken, and can call for a settlement between the amount of coal.then on hand and the amount of coal which had been shipped to the party of thejecond part; and in making such settlement the railroad weights at mines shall govern and be considered conclusive. Nor shall such settlement on the difference between the stock on hand and the coal shipped be waived .by.reason of the fact that previous settlements have been made upon the books and records of the party of the second part without taking stock of the coal in hand; it being understood that the settlements herein called for are not conclusive, but are subject to correction by the taking of stock as herein provided for; and that it is the understanding between the parties that the party of the second part shall account for each shipment of coal made to him in accordance with the invoice price. (6) It is understood and agreed that this contract shall remain in force indefinitely with the understanding that either party can at any time it desires terminate the same by giving 60 days’ notice in writing and upon such termination, final settlement shall be made between the parties, and the party of the second part shall pay the party of the first part, in accordance with invoices rendered, for all coal that he then has on' hand, and shall make payment of all amounts of any kind in arrears. (7) It is further understood and agreed that the party of the second part shall have no authority of any kind to incur any debts for which the party of the first part shall be responsible, and that his authority is limited solely to the handling of its coal in the manner and upon the terms herein set forth. (8) It is further understood and agreed that the party of the first part shall not be responsible for the costs of handling this coal, of advertising, freight, clerk hire, or debts of any other kind or character incurred by the party of the second part; it being the intention of this contract that the party of the first part is to receive from the party of the second part the minimum price herein set forth for each ton of coal which it ships to the party of the second part as its agent, and that all other charges and expenses are to be borne by the party of the second part. (9) It is further un■derstood and agreed that the party of the second part shall execute a surety bond in the sum of $7,500 to insure the faithful compliance on his part with the provisions of this, contract. In witness whereof the parties hereto have caused this contract and agreement to be executed, on this the day and year above written. Alabama Fuel & Iron Company, by Chas F. De Bardeleben, Vice President. R. G. Banks.</p> <p>The following is the contract of guaranty: Know all men by these presents, that we, Richard G. Banks, as principal, and Alabama Fidelity & Casualty Company, as surety, are held and firmly bound unto the said Ala-_ bama Fuel & Iron Company, a corporation, in the just and full ,sum of seven thousand five hundred dollars, for the payment of which, well and truly to be made, we bind ourselves, jointly and severally, and our heirs, executors, administrators, successors, and assigns, by these presents, and as' against the liability hereof, the principal waives all right which he may have to claim either real or personal property as exempt to him under the laws of Alabama. The condition of the above obligation is such that whereas, the above-bound Richard G. Banks has entered into a contract with the said Alabama Fuel & Iron Company, of date the 4th day of October, 1911, copy of which is attached to and made a part of this bond, in which the said Alabama Fuel & Iron Company agrees to allow said Richard G. Banks to handle its coal in the city of Montgomery, Ala., upon certain terms and conditions, which are specifically set forth in said contract. Now, therefore, if the said Richard G. Banks shall faithfully comply with all of the provisions of said contract required of him to be performed during the term of this bond, to wit, one year from the date hereof, then this obligation to' be void; •otherwise to remain in full force and effect. In witness whereof, the said Richard G. Banks has hereunto set his hand and seal, and the said Alabama Fidelity & Casualty Company has caused this instrument to be executed in its name, and its corporate seal hereto* affixed, by Frank N. Julian, its general manager, and J. W. Kelly, its secretary, who are duly authorized so to act, on this the 11th day of October, 1911.</p>

<p>Appeal from Mobile Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Bill by the State of Alabama for the use of the trustees of the Alabama Insane Hospital against the Mobile & Ohio Railroad Company to settle title to land, and for an accouting for the lumber cut and manufactured from said land, and all turpentine and rosin obtained from the same. From a decree denying relief, complainants appeal.</p>

Heard before Hon. Gaston Gunter. Bill by William Jackson against tbe Montgomery Bank & Trust Company to determine priority of debt, and to subject tbe property and assets on wbicb tbe corporation bas a lien for tbe payments of its debts, other than tbe stock held by complainant, and for an order of sale for tbe stock, and tbe payment of complainant’s debt out of tbe proceeds of same. From a decree for complainant, respondent appeals.

Mobile Chancery Court. Heard before Hon. Ti-iomas H. Smith. Bill by the Mobile & Birmingham Railroad Company, and others, against the Louisville & Nashville Railroad Company, and others, to restrain the latter road from interfering with complainant’s crossing over respondent’s track, pending an appeal in a condemnation proceeding denying that right. From a decree discharging a temporary injunction, complainant appeals.

Heard before Hon. J. W. Mabry, Bill by James Q. Smith against the Dallas Compress Company and others, to quiet title to land, and for an accounting. Decree for complainant, and respondents appeal, complainant also filing cross appeal.

Heard before Hon. Tpiomas H. Smith. Bill by J. J. Hauser against Foley & Company, to enjoin the enforcement of a judgment at law, and to vacate and annul said judgment. Decree for respondent and complainant appeals.

Heard before Hon. Thomas H. Smith. Bill by Lucinda Williams and another against Samuel Zimmern for specific performance and damages. From a decree overruling demurrers to the bill, respondent appeals.

Heard before Hon. Ti-iomas H. Smith. Bill by Lee Sherman against Alice Sherman to specifically perform a parol contract for the sale of lands. Decree for complainant and respondent appeals.

Heard before Hon. W. W. Whiteside. Bill by Birmingham, Montgomery & Gulf Power Company against Ida Gay and others, to quiet title to certain lands. Decree for complainant, and respondents appeal. The last will and testament of B. S'.

Heard before Hon. Stewart Brooks, Special Chancellor. Bill by G; Hardy Smith, pro ami, against the Irvington Land Company, to quiet title to' land. Decree for respondent, and complainant appeals.

Macon Chancery Court. Heard before Hon. L. D. Gardner. Bill by Moses H. Wheat and others against Jessie L. Wheat and others, for partition of certain land. Decree on demurrer for complainants, and respondents appeal. It is alleged that complainants, jointly with the respondents named herein, own certain lands described in the bill located in Macon county, Ala., and that complainants and respondents together own all of said land in the proportions set forth in the bill.

Heard before Hon. Thomas H. Smith. Bill by H. C. & W. B. Reynolds Company, against E. D. Reynolds and others, to declare and enforce a resulting trust in lands, with original bill in the nature of a cross-bill by the Bibb County Banking & Trust Company, to enforce its claim or lien against the property. From a decree sustaining the cross complainant, the complainant appeals.

<p>Appeal from Macon Chancery Court.</p> <p>Heard before Hon. L. D. Gardner.</p>

Heard before Hon. W. G. McCorvey. Bill by Susan Williamson' and others against L. Bernard Myrick. Decree for complainants on demurrer, and respondent appeals.

W. W. Whiteside. Bill by Henry W. Pond, as administrator, against D. M. Carmichael and others, for discovery. Decree over: ruling demurrers to the amended bill, and respondents appeal. The original bill sufficiently appears from the opinion.

Heard before Hon. Thomas H. Smith. Bill by C. W. Collins and another against J. P. Compton, and the partners composing the firm of Mayer Brothers, to restrain the sale of certain land, and for a discovery and an accounting, to relieve the indebtedness of usury, and to redeem from a mortgage. Decree for complainants and respondents appeal.

Heard before Hon. W. R. Chapman. Bill by Ophelia J. Adams, as administratrix of the estate of Warren D. Halliday, against Louisa J. Walsh and others, to vacate a decree rendered against her on final settlement. From a decree sustaining demurrers to the bill, complainant appeals.

Heard before Hon. W. W. Wi-iiteside. Bill by Tempie Smith against Dave Johnson to redeem land from mortgage, with cross-bill for foreclosure. Prom a decree granting the relief prayed in the original bill, and denying relief under the cross-bill, respondent appeals.

Heard before Hon. W. H. Simpson. Bill by Minnie Johnson against William J. Johnson for alimony without divorce. From a decree overruling demurrers to the bill, respondent appeals.

Heard before Hon. A. H. Benners. Bill by M. G. Arnett against Pauline Willoughby‘and others, to foreclose a mortgage, and for other relief. From a decree sustaining demurrers to the original and amended bill, complainant appeals.

<p>Appeal from Tallapoosa Chancery Court.</p> <p>Heard before Hon. W. W. Wi-iiteside.</p> <p>Bill by R. L. Henry against Roy Nolen, to correct the description in a deed. From a decree overruling demurrers, to the bill, respondent appeals.</p>

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by Ellie H. Robinson against W. C. Hamilton and others, to be subrogated to rights under a second mortgage. Decree for complainant, and respondents appeal.</p>

Heard before Hon. W. H. Simpson. Bill by J. E. Kyle against W. W. Haley and others, to declare a deed absolute on its face a mortgage, and to redeem. Decree for respondents, and complainant appeals.

<p>Appeal from Washington Circuit Court.</p> <p>Heard before Hon. John T. Lackland.</p> <p>Ejectment by Robert A. Loper against John R. Dickey. Judgment for defendant, and plaintiff appeals.</p>

Heard before Hon. C. C. Nesmith. Statutory ejectment by Mary Ann Snow against B. J. Tulley and others. . From' a judgment- for plaintiff, defendants appeal.

<p>Appeal from Mobile Circuit Court.</p> <p>Heard before Hon. Samuel B. Browne.</p> <p>Ejectment by George Brue and others against John McArthur. Judgment for plaintiffs, and defendant appeals.</p>

Heard before Hon. M. Sollie. Ejectment by the First National Bank of Abbeville against Frank Johnson and others. Judgment for defendant, and plaintiff appeals. Plaintiff claims through J. R. Ward, and defendants claim through E. C. Ward, by adverse possession. J. R. Ward and E. 0. Ward, are brothers, and sons of 0. Ward, who owned the tract in controversy and the adjacent lands. On March 7, 1891, 0.

Heard before Hon. D. W. Speaks. Ejectment by Ignatius Poliak against W. K. Milam. Judgment for defendant, and plaintiff appeals. Plaintiff claims under a deed received at a tax sale on May 30, 1906, deed of date June 16, 1908, and the suit begun on February 10, 1913.

<p> Ejectment. </p> <p>1. Appeal ancl Error; Law of the Case; Subsequent Appeal. — The construction of an item of the will in the opinion on a former appeal will be adhered to on a subsequent appeal where the court is not persuaded of error in the former opinion.</p> <p>2. Wills; Construction; Gift; Presumption. — A will devising land to the testator’s son to be held during his natural life, and at his death to be equally divided between the heirs of his body, and, should he die, without leaving child or children, the right to dispose of the land “herein devised to him and the heirs of his body” as he should see fit, justifies the assumption that the testator intended to make a gift of the property by will rather than the mere narration of a past transaction.</p>

Heard before Hon. Saffold Berney. Ejectment by the Mount Vernon Lumber Company against Kate T. Shepherd and others, to recover standing timber. Judgment for defendants and plaintiff appeals.

Heard before Hon. Gaston Gunter. Ejectment by Lucy Hill against Adolph Butler. Judgment for plaintiff, and defendant appeals. See, also, Butler v. Hill, (mem.) 65 South. 1032. The facts sufficiently appear from the opinion.

Heard before Hon. C. D. Smith. Ejectment by Henry Jackson, as guardian, against James L. Phillips. Judgment for plaintiff, and defendant appeals. The case was tried by the court without a jury. There was judgment for plaintiff with a special finding of facts with respect to the instrument of title referred to in the opinion.

<p>Appeal from Montgomery Circuit Court.</p> <p>Heard before Hon. Armstead Brown.</p> <p>Ejectment by William Hill against Kincheon Harris. Judgment for plaintiff and defendant appeals.</p>

<p>Appeal from Coosa Circuit Court.</p> <p>Heard before Hon. S. L. Brewer.</p> <p>Ejectment by the Alabama White Marble Company against the Eureka White Marble Quarries. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Walker Circuit Court.</p> <p>Heard before Hon. J. J. Curtis.</p> <p>Ejectment by W. R. Boshell against the Birmingham Fuel Company. Judgment for plaintiff, and defendant appeals.</p>

<p> Ejectment. </p> <p>1. Ejectment; Parties to. — While each may separately maintain ejectment, the heirs and personal representatives oí a deceased owngr of land cannot join in a single action of ejectment.</p> <p>2. Parties; Amendment. — Where an action of ejectment was begun by the heirs and the personal representatives of the deceased owner, and thereafter, the complaint was amended by striking therefrom the names of all the heirs except one, who had been appointed administrator, leaving him suing as administrator, there was not an entire change of parties plaintiff, as one of the original plaintiffs was still a party although he was suing in a different capacity.</p> <p>3. Executors and Administrators; Right lo Maintain Ejectment.— One styling himself an administrator cannot recover in ejectment where defendants deny.the fact that he was such administrator, and he did not then hold that position.</p> <p>4. Evidence; Presumption; Discharge of Administrator. — Where the records which were preserved merely showed that plaintiff was appointed administrator about thirty years previous, and he testified that he took possession of the personality and applied it to the payments of the debts of the estate, but did not do anything with respect to the realty, the presumption is conclusive that he had made final settlement and been discharged, and he cannot now in his representative capacity maintain ejectment for the recovery of lands of his intestate.</p>

<p> Ejectment. </p> <p>1. Execution; Form; Requisites. — An execution reciting that “you cause to be made the sum of $100.00 judgment * * * which -recovered of him on April 7, 1890, etc.,” failing to show in whose favor it was issued, was void.</p> <p>2. Courts; Stare Decisis. — A decision that an execution not showing in whose favor it was issued which has stood undisturbed for more than twenty-five years will not be overruled, though criticised; the rule of stare decisis applying.</p>

<p>Appeal from Marion Circuit Court.</p> <p>Heard before Hon. C. P. Almon.</p> <p>Ejectment by Lizzie Mills and others against James P. Pearce. Judgment for plaintiffs, and defendant appeals.</p>

Heard before Hon. S. L. Brewer. Forcible entry and detainer by Lewis Harris and others, against Charles Harris. Judgment for plaintiff and defendant appeals.

Original petition in the Supreme Court. ' Mandamus by John Rogers against B. M. Miller, Judge of the Fourth Judicial Circuit, to compel the latter to change or correct the records of the organization of a grand jury. The peition shows: That an indictment was returned against John Rogers for murder by the grand jury organized for the circuit court of Dallas county November 23, 1914.

<p>Appeal from Macon Circuit Court.</p> <p>Heard before Hon. Lum Duke.</p> <p>Mandamus by the City of Tuskegee directed to the Court of County Commissioners of Macon County to require them to pay over to the city a share of certain money derived from taxes levied by Macon county for road, and bridge purposes for tbe years 1911-13. Prom an order denying tbe writ, petitioner appeals.</p> <p>Tbe answer of respondent to petition and the undisputed evidence shows that the taxes in question were levied as follows: At tbe June term, 1911, of tbe commissioners’ court of Macon county, shown by tbe record of said proceédings kept as required by law, tbe following tax levies were made, and tbe following order entered : “On motion of M. E. Aiken it was ordered that one-half of 1 per cent, be levied and collected on tbe value of tbe taxable property in tbe county as shown by tbe book of assessment, and that 50 per cent, be added to all licenses collected for tbe state, for tbe use of tbe county, to be collected at the same time and in tbe same manner that state taxes and licenses are collected.”</p> <p>After and subsequent to tbe above order, tbe following appears of record: “On motion of E. W. Harris, it was ordered that one-fourth of 1 per cent, be levied and collected for road and bridge purposes on tbe valuation of all taxable property in tbe county as shown- by tbe book of assessment.”</p> <p>Like levies were made in like manner for tbe years 1912 and 1913, and for each year under said levies there was actually collected a general tax of one-half of 1 per cent., which was used for general purposes, and, in addition thereto, a tax of one-fourth of 1 per cent., which was used for general purposes, and, in addition thereto, a tax of one-fourth of 1 per cent., which was set apart and used exclusively for tbe roads and bridges of the county.</p>

Heard before Hon. J. H. Miller. Bill by T. C. Windham against the Birmingham Water Works Company to restrain said company from cutting off water from complainant’s house, and for a mandatory injunction to require the said company to accept a sum certain for water services for a certain period. From a decree granting the relief prayed for, respondents appeal.

Original petition in the Supreme Court. Petition by the Seals Piano & Organ Company for a writ of prohibition, mandamus or other remedial writ to the judge of the circuit court for Montgomery county, seeking to have him abate an attachment levied on the property of the plaintiff.

Heard before Hon. S. L. Brewer. Detinue by the Butler-Kyser Manufacturing Company against the Central of Georgia Railway Company, for the recovery of certain cotton in specie, with claim thereto interposed by Weil Brothers. Judgment for claimants and plaintiff appeals.

Heard before Hon. H. A. Pearce. Detinue by G. W. King against J. H. Thomas for certain personal property, with a claim thereto by Bannie Thomas. Judgment for claimant, and plaintiff appeals. Transferred from Court of Appeals under the act creating said court.

Heard before Hon. W. H. Lindsey. Petition by Robert Allen to establish and probate a lost will, with contest by Joe Scruggs and others. From a decree denying probate to the will, petitioner appeals.

City Court. Heard before Hon. H. A. Sharpe. The B. F. Roden Grocery Company had judgment against J. Millitello and had execution issued thereon, and levied upon property which was claimed by V. Millitello. On the trial of the claim suit there was judgment for the execution plaintiffs, and the claimant appeals. Transferred from the Court of Appeals under the act creating said court.