Volume 192 — Alabama Reports

<p>Appeal from Limestone Circuit Court.</p> <p>Heard, before Hon. D. W. Speaks.</p> <p>Holey Matthews, alias, etc., was convicted of murder and he appeals.</p>

<p>Appeal from Marengo Circuit Court.</p> <p>Heard before Hon. John T. Lackland.</p> <p>Jasper Madley was convicted of murder and he appeals.</p>

Heard before Hon. H. A. Pearce. Assumpsit by tbe First National Bank of Blakely against B. F. W. Davis. Judgment for plaintiff, and defendant appealed, and tbe case is transferred from tbe Court of Appeals under Acts 1911, p. 449, § 6. The note was made payable to “the order of myself,” signed by B. F. W. Davis, and indorsed in blank by B. F. W. Davis. The defendant objected to the introduction of the note because it was not shown that the title to same was in plaintiff.

<p> Assumpsit. </p> <p>Appeal and Error; Judgment to Support; Mandamus. — A judgment dismissing a claim to part of property levied on under an attachment sued out by a plaintiff against a defendant, will not support an appeal, the claimant’s remedy being by mandamus.</p>

Heal’d before Hon. H. A. Pearce. Assumpsit by M. S. Davie against John B. Saxon. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under the act creating such court.

Heard before Hon. H. A. Si-iarpe. Assumpsit by W. B. Copeland against Jefferson county, to recover certain fees alleged to have been earned as clerk of the Jefferson Criminal Court. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under the act creating such court.

Heard before Hon. Edward J. Gilder. Assumpsit by the Jefferson County Savings Bank against J. H. Compton. Judgment for defendant, and plaintiff appeals. The action was on a negotiable promissory note payable to Planters’ Co'-operative Stores Company, and by them transferred to the plaintiff before maturity for value. Plea 2 is that the note sued on is without consideration.

Heard before Hon. W. W. Haralson. Assumpsit by Trotter Brothers against R. H. Walker. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under the act creating such court.

Heard before Hon. Ed T. Albritton. Assumpsit by the Farmers’ Mutual Insurance Association of the State of Alabama against D. B. Stewart and wife upon two- promissory notes. Judgment for defendants, and plaintiff appeals. Transferred from Court of Appeals.

Heard before Hon. John C. Pugh. Assumpsit by J. T. Hackney against Fred Thomas. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section G, p. 449, Acts 1911. The complaint is for work and labor done and upon an account stated.

Heard before Hon. Hugh D. Merrill. Assumpsit by J. H. Ligón against. F. O. Roberts. Insufficient judgment for plaintiff, and he appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 450. The bill of particulars reads as follows: “Balance from 1912, $3.60. April 1913, by cash, $6.40. April 7th to check 1st National Bank, $150. Interest on same, $12. May 2, to cotton seed, 11 bushels, $4.40. Three visits as physician in January at $2.50 per visit, $7.50.

Heard before Hou. Samuel B. Browne. Action by tbe R. J. & B. F. Camp Lumber Company against tbe MeGowin Lumber & Export Company for breach of contract. Judgment for plaintiff, and defendant appeals.

Heard before Hon. H. A. Sharpe. Action by tbe Little Cahaba Coal Company against the Aetna Life Insurance Company, for breach of an indemnity contract. Judgment for defendant, and plaintiff appeals.

Heard before Hon. Gaston Gunter. Action by the International Agricultural Corporation against C. G. Abercrombie. Judgment for the defendant on his counterclaim, and plaintiff appeals. Plaintiff sued defendant on promissory notes aggregating $1,341, with $200 for attorney’s ‘fees.

Heard before Hon. Saffold Berney. Action by the Farmers’ Bank & Trust Company against Shut & Keihn. .Tndement for defendant, and plaintiff appeals.. The following is the draft drawn by Schaffer directed by the court to be set out: $1319 72/xx Scuilpa, Ala., 12/20, 1912. At sight, with B/L attached for 236 poplar, logs branded (S & K), pay to the order of J. W. Lee thirteen hundred and nineteen 72/xx dollars. No. 2229-to 2464 To Shut & Keihn, Inc. 1018 Hennen Bldg.

Heard before Hon. Bernard Harwood. Action by Harriet W. Curtis against D. W. Davis, as tax assessor, and the sureties on Ms official bond. Judgment for plaintiff, and defendants- appeal. Transferred from the Court of Appeals under section •6, p. 449, Acts of 1911. The demurrers raise the pro-position that the law was unconstitutional and that the statute did not make the sureties on the official bond of defendant liable for the penalties claimed and sought to be recovered.

Heard before Hon. John H. Miller. Assumpsit by J. D. Payne against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals of Alabama, under section 6 of the act of 1911, p. 450.

Heard before Hon. Thomas W. Wert. Assumpsit by J. T. Brown against S. T. Long and another. Judgment for defendants, and plaintiff appeals. Transferred from the Court of Appeals under the act creating said court.

Appeal-from Hale Law and Equity Court. Heard before Hon. Charles E. Waller. Action by Nora L. S. Lunsford against the Southern States Fire & Casualty Insurance Company. Judgment for plaintiff, and defendant appeals. The suit was filed at the January or spring term of 1912. At the fall term, 1912, the pleadings are referred to and discussed in the opinion in such way as not to require that they be set out.

Heard before Hon. James H. Ballentine. Action by the City of Hnntsville against the National Surety Company, for • breach of the condition of a bond. Judgment for plaintiff, and defendant appeals.

. Heard before Hon. Bernard Harwood. Action by Marshall C. Garth against the Reliance Life Insurance Company of Pittsburgh, Pa., upon an accident insurance policy. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under the act creating such court.

Heard before Hon. A. E. Gamble. Action by tbe Dunn Hardware Company against James F. Jones on tbe common counts. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under the act creating said court,

Heard before Hon. John T. Lackland. Action by I. M. Turner against W. J. Thornton. Judgment for defendant and plaintiff appeals. Transferred from Court of Appeals under the act creating said court.

Heard before Hon. H. A. Pearce. Action by M. E. Donaldson against E. L. Wilkerson and another, on a replevy bond. Judgment for defendants, and plaintiff appeals.

Heard before Hon. Ed. T. Albritton. Action by tbe Phoenix Insurance Company against J. E. Seegers in assumpsit. Judgment for defendant, and plaintiff; appeals.

Heard before Hon. P. H. Pitts. A petition by Roger ap C. Jones, as administrator of the estate of Roxie Hert, deceased, seeking to sell land to pay a debt, was contested by Henderson Hert, alias, etc., and others. Prom a decree dismissing the petition, petitioner appeals.

<p> Mandamus. </p> <p>Infants; Removal of Disability; Petition. — Construing §§ 4505-6 Code 1907, it is held that a minor whose father was living at thie time, though in another state, had no right to file a petition to be relieved of the disabilities of nonage.</p>

Original petition in the Supreme Court. Proceedings by the State on the relation of W. L. Martin, Attorney General, against W. L. Pratt, as judge •of probate of the county of Bibb, to impeach and remove respondent from office because of habitual drunkenness. Order entered removing respondent from of.fice.

Heard before Hon. Gaston Gunter. Petition by the Tennessee Coal, Iron & Bailroad Company for mandamus to require C. Brooks Smith, as State Auditor, to issue a warrant for the refund of certain taxes. From an order awarding the writ, respondent appeals.

Heard before Hon. W. W. Haralson. Action by J. W. Mayhall against Joe Woodall for the penalty for failure to satisfy im full the record of a mortgage. Judgment for defendant and plaintiff appeals. Transferred from Court of Appeals under the statute creating such court.

Heard before Hon. Samuel Browne. Proceedings by the Mobile & Birmingham Bailroad Company to condemn a right of way and crossing over the tracks of the L. & N. Bailroad Company. From an order denying the right to condemnation, petitioner appeals.

<p>Appeal from Chilton Probate Court.</p> <p>Heard before Hon. E. B. Deason.</p> <p>Contest by John S. Dennis of a stock law election held in Chilton county. From a judgment denying the contest he appeals.</p>

Heard before Hon. Charles E. Waller. Action by Ben S. Evans against the Drennen Motor Car Company to recover the penalty for failure to enter satisfaction of a mortgage upon the record. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under the act creating such court.

Original petition in the Supreme Court. Petition by Jerome Price for a writ of certiorari to review and reverse the finding and proceedings of the Marengo Law and Equity Court, decreeing that a former finding of the court relieving petitioner from the disability of nonage, was not null and void.

<p>Appeal from Etowah Probate Court. '</p> <p>Heard before Hon. L. L. Herzberg.</p> <p>Partition proceedings between Sophie Reed and others and Mark Hughes, for sale of land for division. From an order setting aside the sale and directing a resale, Reed and others appeal.</p>

<p>Appeal from Tallapoosa Circuit Court.</p> <p>Heard before Hon. S. L. Brewer.</p> <p>Detinue by W. A. Leacb against R. L. Nix, with suggestion from Nix that Graves & Gross were the owners of the property, such parties appearing as claimants and defending. From a judgment for plaintiff, claimants appeal.</p> <p>Transferred from the Court of Appeals under the act creating such court.</p>

Heard before Hon. A. H. Alston. Detinue by Lindsey & Company against Dee Steenson, for tbe recovery of a mule. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under the act creating such court.

Heard before Hon. C. P. Almon. Detinue by Mrs. M. E. Scott against T. L. Shotts and others to recover a mule. Judgment for plaintiff, and defendants appeal. Transferred from the Court of Appeals under the act creating that court.

<p> Ejectment. </p> <p>1. Mortgages; Conditions; Performance; Title. — A defense that plaintiff’s title was derived through a sale on foreclosure of a mortgage given to secure an appearance bond, the terms of which had been fully complied with, and that the mortgage was consequently rendered null, is not the performance, within section 4988, Code 1907, of a condition upon which the obligation to pay a certain sum by a certain day depends, such not being equivalent to payment.</p> <p>2. Mortgages; Ejectment; Ascertainment of DeM. — Where the mortgage through which title is claimed has been foreclosed under a ■power of sale therein contained, the provisions of section 3851, Code 1907, are not applicable.</p> <p>•3. Same. — In the absence of a statute, a defendant cannot go behind She mortgage and attack its consideration, in an action of ejectment -where plaintiff claims through a mortgage.</p> <p>4. Same; Assignment; Title. — The mere assignment of a mortgage to the persons named in the assignment, although without apt words of conveyance of the real estate therein described, authorizes its foreclosure in accordance with the powers of sale therein, vests the purchaser with title to the property conveyed.</p>

<p>Appeal from Pike Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Ejectment by Martha Harris against P. F. Hanchey. Judgment for defendant and plaintiff appeals.</p>

Heard before Hon. H. A. Sharpe. Ejectment by one Doe on the demise of W. A. Evers, against E. E. Matthews and others. From a judgment for defendants, plaintiff appeals. The following is the agreed statement of facts: That on October 7, 1889, the United States issued and delivered a patent to Augusta Oates, conveying the lands sued for, which patent was recorded in the office of the judge of probate of Jefferson county in July, 1892.

<p>Appeal from Lawrence Circuit Court.</p> <p>Heard before Hon. C. P. Almon.</p> <p>Statutory ejectment by F. Roman as trustee, against Henry Burnett. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Marion Circuit Court.</p> <p>Heard before Hon. A. H. Carmichael, Spécial Judge.</p> <p>Action by James P. Pearce against the Aldricb Mining Company, for the conversion of 8,000 tons of coal. Judgment for plaintiff, and defendant appeals.</p> <p>For statement of the controversy, see former appeals, reported in Alclrioh Mm. Go. v. Pearce, 169 Ala. 161, 52 South. 911, Ann. Cas. 1912B, 288; Pearce v. Aldrich Mm. Go., 18á Ala. 610, 64 South. 321.</p> <p>The following charges were refused to defendant: “(2) Abandonment by an adverse possessor of farm land for three summer months ends the adverse possession preceding.”</p> <p>“(6) If the jury believe from the evidence that there was a break or interruption in the continuous possession of the land between the time Elliott gathered his wheat crop and the time Spiller Avent on the land, you cannot find for plaintiff unless Pearce had 10 years of actual, open, notorious, continuous possession at the time the coal was severed.</p> <p>“(7) Abandonment of farm lands for five months, namely, July to November, inclusive, by a person claiming to hold said land adversely, is a break in continuity, and wipes out the adverse possession preceding the month of July.”</p> <p>“(1) The court charges you that Pearce was not in the possession of the Butler 40 from which the coal was taken at the time the coal was taken.”</p> <p>“(3) If the jury believe the evidence, they cannot find that plaintiff was in the actual possession of the Butler land at the time the coal was mined.”</p> <p>(4) General affirmative charge.</p> <p>“(5) The survey of Dryer is not evidence in itself, and if Dryer testified his survey was not to be absolutely relied on, the evidence of Dryer’s survey must not be considered.”</p> <p>The following charges were given for plaintiff: “(8) If you find from the evidence that the land from- which the coal in dispute was mined is situated in the S. E. 14 of S. E. 14, section 10 township 12, range 12, and if you are further satisfied reasonably from the evidence that this land belonged to Jim Pearce, and if defendant did not then intend to claim any further than the true line, such holding would not be adverse to- plaintiff, and you should find a verdict for plaintiff, and assess his damages at what you think to be reasonable and right under the evidence, not to exceed the amount of the complaint.</p> <p>“(9) If the jury believe from the evidence that defendant mined the coal as alleged in the complaint from the land described in the complaint and converted such, coal as alleged in the complaint, and that the averments of the complaint are true, and that at the time of the mining and conversion the land was the property of plaintiff as alleged in the complaint, then plaintiff would be entitled to recover unless the jury believe that defendant was in the adverse possession of that part of the lands from which the coal was mined, claiming to own the same and disputing plaintiff’s title.”</p> <p>The jury returned a verdict awarding plaintiff damages at $3,000, and judgment was entered accordingly.</p>

<p>Appeal from Wilcox Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Bill by Lillie M. Davidson against J. T. Adams and J. G. Donald and others. Judgment for complainant, and respondents appeal.</p> <p>The bill alleges that complainant and one Pauline Adams were joint owners to the extent of a half interest of a life estate in and to certain lands described in the bill; that respondent J. T. Adams, the husband of Pauline Adams, acts as her agent in the transaction of business; that the above lands' were rented to Tom Andrews, for part of which he ivas to pay $350 per year rent under a ten-year lease since 1907; the other part he was to pay 16 bales of cotton per year rent under a five-year lease beginning Avith 1912; that other parts of the land Avere rented by Harris for $10 per year, and another part of the lands Avas rented by J. C. Harper and J. T. Adams, both of whom are respondents, for the sum of $310 per year; that in March, 1912, complainant’s husband, Paul Davidson, left his home and family, and has never returned, and his whereabouts are still unknown; that soon after his departure J. T. Adams, Avho is her said husband’s brother-in-law, made known to complainant that her husband was short in his account with the Bank of Pine Apple, of Avhich bank he had been cashier, in a large sum of money, to wit, $1,700; and that he Avas also indebted to respondent Dr. J. G. Donald in the sum of $1,200. Adams informed complainant that said indebtedness must be paid, and that he could arrange the matter Avith the „bank if she Avould secure him by executing to him a transfer of the rents above set out, but later informed her that he- could not arrange the matter without the, assistance of Donald, and that Donald would not come to his assistance unless complainant would agree to release the said Donald a part of the rents of said lands to secure the debts due him by complainant’s husband. It is alleged that complainant was inexperienced in business matters, did not know her liability in the premises, relied on the representations of Adams and Donald, and did execute to Donald a note releasing all claim on rent notes held by Dr. Donald for rent of the lands for the years 1912-13, and also executed to Adams a note, a-nd as security a release on all the incomes, rents, and profits that may arise from the land above described until the note, with interest, is fully paid; that Adams again representing that more than $1,-000 was yet due the Bank of Pine Apple by her said husband, induced her to sign some deed, the nature of which she does not know, and has not been able to ascertain, but believes it to be a deed or conveyance of her dower interest in certain other lands owned by her husband. The conveyances are alleged to be without consideration, and that both the parties to whom they were made were interested in the Bank of Pine Apple as large stockholders and as officers. It is further alleged that the Bank of Pine Apple had an attachment against her husband with the levy upon certain lands, and his interest therein sold to satisfy the debt due from Paul Davidson to the bank ascertained to be in the sum of $2,317.98, and it is averred on information and belief that the debt due from her husband to said bank was thereby satisfied, and should have been can-celled. The bill makes J. G. Donald, Pauline Adams, Tom Andrews, J. C. Harper, Sam Harris, and the Bank of Pine Apple respondents also.</p> <p>The demurrers were that the bill was multifarious; that there was a misjoinder of parties respondent, because it prays for an accounting against the Bank of Pine Apple with which the other respondents are not concerned; that Pauline Adams is not a proper party, and that the Bank of Pine Apple is not a proper party; and that there are no facts stated in the bill entitling complainant to any relief against this respondent. Each one of the respondents adopted the demurrer. The answers set up the matters discussed in the opinion.</p>

<p> Bill to Redeem. </p> <p>1. Pleading; Gonolusiveness; Estoppel. — In a bill to redeem the averment that the mortgage was executed by complainant and his wife, and that it covered the following described lands situated in Jefferson county, Alabama, and giving the description by government subdivision as they appeared in the mortgage, in addition to the theory'of the existence of a valid mortgage necessarily arising from the purpose and effort of complainant to redeem, precluded complainant from asserting that such mortgage did not contain a sufficient description of the land as respects the state and county of its location.</p> <p>2. Mortgage; Sale; Notice; Advertise. — Where the mortgage contained no provision as to the method of the required advertisement for sale -the publication by the mortgagee of a notice of sale for a period of thirty days before the day fixed for the sale, which was February 4, 1904, such notice appearing on January 1st, 8th, 15th, 22nd and 29th, and on the date set for the sale, the sale was postponed to February 15th, when a sale was made, and an issue of the paper carrying the notice appeared on February 5th, with the same notice, without anything to indicate the postponement, hut there was no express contention of any bad faith or of any prejudice to the mortgagor, there was under the power of .sale, a power to postpone the advertised sale for a reasonable length of time; to advertise a sale not necessarily meaning public notice by ¡publication in a newspaper, but comprehending notice by handbills, placards or other written public notices, the adjourned sale without á new thirty days’ notice being valid.</p> <p>3. Same; Description of Land. — The notice examined and held sufficient as against the objection that it did not locate the land as to state and county, the property being described with that, reasonable certainty as to identity to inform persons of ordinary intelligence of its location.</p> <p>4. Evidence; Judicial Notice; Geographical Facts. — The courts judicially know that there is but one range 5 west, in Alabama, and that that range lies west of the Huntsville meridian, and that there is but one township 18 in the state, which bisects range 5 west, and that section 32, township 16, range 5 west, is in Jefferson county.</p>

<p>Appeal from Marengo Law and Equity Court.</p> <p>Heard before Hon. Edward J. Gilder.</p> <p>Bill by Mattie B. Hendrix against Thomas J. Davis and another to enforce a constructive trust in land. Judgment for complainant, and respondents appeal.</p>

<p>Appeal from Mobile Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Bill by Taylor Foster against Ferdinand Forcheimer and T. S. Bodden, for the dissolution of a partnership and an accounting. From a decree overruling demurrers to the bill, the respondents take separate appeals.</p>

<p>Appeal from Mobile Chancery Court.</p> <p>Heard before Hon. Thomas H. Smith.</p> <p>Bill by Cunningham Hardware Company and others, against Mary E. Kimball and others, to subject to their demand as creditors the proceeds of a certain life insurance policy. Decree for complainants and respondents appeal.</p> <p>The complainants are alleged to be creditors of Lee R. Kimball, deceased, and they seek by this bill to subject to their claims the proceeds of certain life insurance policies, $55,000 in amount, which had been collected by the widow in her own right as the beneficiary named in the policies. With reference to the dates of the claims asserted, it is alleg’d simply that said Kim-ball was indebted to complainant at or before thé date of his death, and it is shown that the claims filed against his estate aggregate $27,000, while the assets reported by the administrator amount to less than $10,000. The allegation is that the said Kimball was insolvent at the time of his death, and had been so for some time prior thereto, and that his estate is now wholly insolvent. It appears that of the three policies in question, two were what is known as “20 payment life” and one as “19 payment life,” and that each of said policies contained a stipulation whereby each of said insurance companies undertook and bound itself to pay to said Lee R. Kim-ball personally certain amounts upon the expiration of a given number of years after the issuance of said policies; the said Lee R. Kimball reserving unto himself a benefit in said policy. It is alleged also that said Kimball paid the premiums on all of said policies during his lifetime, but the date of the policies is not shown other than by the allegation' that they were taken out prior to his death. The bill charges on information and belief that L. R. Kimball, who is the administrator, and who is made a respondent in his representative capacity, has the charge and management of said insurance proceeds, and has bought a large amount of real estate with a portion of it, and taken a title in his own name.</p>

Heard before Hon. L. D. Gardner. . Bill by Mary E. Brooks against Greil Brothers Co. and others to cancel certain notes and leases, and for an accounting for rents and profits received. Decree for respondents and complainant appeals.

<p>Appeal from Coosa Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p> <p>Bill by T. M. Burks against J. M. Parker to settle a partnership. Decree for respondent and complainant appeals.</p>

Heard before Hon. Edward J. Gilder. Petition by Edward de Graffenried as assignee of the City Bank & Trust Company, for a reference to fix bis compensation as assignee. From an order denying a reference, because of a failure to file claim thereto within the time required by an order of a subsequent receiver to file claim, petitioner appeals.

W. H. Simpson. Bill by J. B. Altom against D. D. Moore and others to declare a deed fraudulent and void as to creditors. From a decree overruling demurrers to bill, respondents appeal. Complainant is a resident of the state of Tennessee; Moore, a resident and citizen of the state of Georgia; and Sherwood, a resident of Montgomery, Ala.

Heard before Hon. W. W. Pearson. Bill by J. H. Middleton against E. H. Foshee to enforce an equitable set off against a judgment at law. Decree for respondent, and complainant appeals.

Sumter Chancery Court. Heard before Hon. Thomas H. Smith. Bill by R. L. King against the Livingston Manufacturing Company and others. From a decree sustaining demurrer to- the amended bill, complainant appeals.

Heard before Hon. W. H. Simpson. Maggie Hayes filed a bill for divorce against John Arthur Hayes, and obtained a decree of divorce, but an order was entered granting the custody of a- child of the parties to the father. From an order entered afterwards modifying the decree as to the custody of the child, the father appeals.

Heard before Hon. W. H. Simpson. Bill by J. C. Butler and another, against H. A. Webb and others, for an accounting, and to require a pro rata payment of liability. From a decree overruling demurrers to the bill, respondents appeal.

Heard before Hon. W. H. Simpson. Bill by Rena Slaughter against the Grand Lodge and others to cancel an insurance agreement, and for an accounting as to the proceeds. Prom a decree dismissing the bill and dissolving an injunction issued pendente lite, complainant appeals.

Heard before Hon. W. W. Pearson. Bill by J. H. Carter against D. O. Manning to enforce a vendor’s lien. Cross bill by respondent seeking an abatement of the purchase price because of deliciency in the acreage. From a decree sustaining demurrer to'the cross bill, respondent appeals.

Heard before Hon. Thomas H. Smith. Bill by B. H. Donald, trustee in bankruptcy of R. M. McCrory against R. M. McCrory and wife, to set aside certain conveyances as a fraud upon creditors. Decree for complainant and respondent appeals.

Heard before Hon. Saffold Berney. Bill by the Mount Vernon Lumber Company against Kate T. Shepard, for partition of land and timber thereon, and for a division. From a decree overruling demurrers to the hill, respondent appeals.

<p>Appeal from Dale Chancery Court.</p> <p>Heard before Hon. L. D. Gardner.</p> <p>Bill by J. II. Whaley and others against Phoebe Crittenden, nee Whaley, to cancel a deed, and for a sale of the lands for division. From a decree dismissing the bill, complainants appeal.</p>

<p>Appeal from Walker Circuit Court.'</p> <p>Heard before Hon. J. J. Curtis.</p> <p>Bill by J. R. Kilgore against Nellie W. Edwards and another, to enforce a vendor’s lien, with cross bill by respondent to abate purchase price. Prom a decree for complainants, respondents appeal.</p>

Heard before Hon. E. C. Crow. Action by J. W. Miller against the Southern Bell Telephone & Telegraph Company and others for damages for being struck by a pole falling. Judgment for plaintiff, and defendant named appeals. The original suit was against the Southern Bell, the People’s Home Telephone Company, and the Birmingham Railway, Light & Power Company.

<p> Trover and Case. </p> <p>’l.Property; Ownership; Presumption. — Possession of property without explanation as to ownership is merely presumptive evidence of ownership which may be overcome by evidence showing the character of the possession.</p> <p>2. Same. — Acts of dominion and control over property furnishes a presumption that the possessor has title thereto, but the presumption is rebuttable.</p> <p>3. Witnesses; Contradiction. — Where a witness stated that, the property belonged to the plaintiff, he could be contradicted by the introduction of a mortgage upon the property made by the defendant' in execution, the action being for wrongful levy and sale of plaintiff’s property under execution.</p> <p>4. Execution; Wrongful Levy; Ownership, — In an action for the wrongful levy and sale of plaintiff’s property under execution against another, evidence that the execution defendant stated that he' did not own the property was sufficient to overcome the presumption that he owned it, and being uncontradicted, required a verdict to be directed for the plaintiff.</p>

Heard before Hon. E. C. Crow. Action by Frances Gross against tbe Central of Georgia Railway Company. There was a judgment for plaintiff, and defendant appealed to the Court of Appeals, and it- transferred the cause under Acts 1911, p. 450, § 6, to the Supreme Court.

Heard before Hon. E. C. Crow. Action by Jack Levine against Joe Ferlisi for injuries sustained in an automobile accident. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under act creating said court.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. E. C. Crow.</p> <p>Action by Ben Moody against the Tennessee Coal, Iron & Railroad Company. Judgment for plaintiff, and defendant appeals.</p> <p>Count 2 as amended relies on the negligent order of one Dave Dermott, to whose orders and directions plaintiff was bound to conform, and did conform, resulting in the injuries complained of, that he negligently ordered plaintiff to break a hot runner. Count 3 as amended was a wanton count, based on the same allegations of negligence, with the addition that the order was given with knowledge that plaintiff would be injured thereby probably, and with reckless disregard of the consequences. Plaintiff had been employed by defendant at its furnaces for about 19 years, and had had many years’ practical experience in the work of breaking the metal after its run from the furnace into the sand. About October, 1911, he began having epileptic fits, and was laid off from work for two or three months, lie was then employed to break the runway of molten cinders, which leave the furnace separately, or, as he expressed it, “to work the cinder fall.” This was his daily or nightly task, which he was accustomed to perform as a matter of routine, with or without direct orders from his superiors, by 10 p. m. and 4 a. m. every night. On the occasion in question he was breaking the runway about 4 a. m., when he fell into a pit and was badly burned. He had been ordered by the superintendent from 30 to 45 minutes before this. Plaintiff’s witnesses testified variously that his spells gave visible indications in conduct or appearance before the actual seizure, for 15, 30, and sometimes 40 minutes. The evidence shows nothing as to such indication at the time the order was given him. Plaintiff knew and understood his infirmity, and had consulted a physician and been treated by him. It does not appear that the superintendent had any knowledge of it, unless it was inferable from notoriety about the plant. Besides the general issue, there were special pleas of assumption of risk, and of accord and satisfaction, and a written instrument was put in proof, reciting the receipt of $182 in satisfaction of his claim against defendant, and releasing defendant from all further liability. Defendant requested affirmative charge, which was refused, and also requested in writing the following charges: “If you believe from the evidence that, at the time plaintiff got work at defendant’s furnace breaking runner, that he knew he was subject to fits, and that such a fit might cause him to fall into the hot iron, you must find for defendant. A man, laboring under any physical disability of which he has full knowledge, who accepts employment with another, cannot recover damages of that other in the event he sustains personal injuries while in his employment, where such personal injuries were directly caused by such physical disability. Even though you should find from the evidence that defendant through its employee knew that plaintiff was subject to fits, plaintiff cannot recover in this case, if you should find from the evidence that at the time he accepted such employment- plaintiff also knew that he was subject to said fits, and of the danger of his sustaining personal injuries while at work as a result of falling in such fit. If you believe from the evidence that plaintiff accepted from defendant a sum of money in settlement of any claim for damages which he might have against defendant on account of sustaining personal injuries, while in its employment, your verdict must be for defendant regardless of any calculation by which it was arrived at.”</p>

<p> Fraudulent Alteration of Note. </p> <p>1. Evidence; Bes Inter Alios Acia. — Where the action was against one not a party to a note for damages for altering such note by erasing the words, 10% from the clause providing for attorney’s fees, resulting in the maker being required to pay a larger attorney’s fee, notes payable to the same payee, executed by third parties a year or more after the execution of plaintiff’s note, offered to show the conduct or custom of the payee with reference to his note, were properly excluded.</p> <p>2. Appeal and, Error; Harmless Error; Evidence. — Where the note itself showed that it had been changed, and a blank note purporting to have been printed by the same printing establishment, and to be an exact duplicate of plaintiff’s note, except for the erasure, was in evidence, and the defendant admitted that the note had been changed, the exclusion of other notes offered to show that plaintiff’s note had been changed from its original form, was not prejudicial: the only controversy being as to the time of the change and defendant’s connection therewith.</p>

Houston Circuit Court. Heard before Hon. H. A. Pearce. Action by Richard C. Fowler against the Atlanta & St. Andrews Bay Railway Company, for the statutory penalty for failing to put in cattle guards after written demand. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Act of April 18, 1911 (Gen. Acts 1911, p. 450).

Heard before Hon. E. C. Crow. Action by Harrison Hawkins against the Southern Sewer Pipe Company for injuries received while in its employment. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under the act creating said court.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. C. B. Smith.</p> <p>Action by R. P. Parker against the firm of Crews & Green and its members. Judgment for plaintiff, and defendants appeal.</p> <p>Transferred from Court of Appeals under section 6, Acts 1911, p. 450.</p> <p>The complaint alleges, in effect, that defendants or their agents or employees, acting within the line .and scope of their employment, entered the place of business of plaintiff in Birmingham and took therefrom certain personal property, and plaintiff avers that as a proximate result of said wrong, he has been deprived of the possession of such property; he has been greatly damaged in his business; he has been caused to suffer much discomfort, mental pain and anguish, and was greatly distressed. The first count alleges that the property was taken against his will and over his protest, and in a rude and rough manner. The second count alleged the taking after a warning not to molest said property in any manner against the will and protest of plaintiff, and by the use of enough force to take and carry it away. The other counts allege the wrongful, willful, and wanton taking thereof with force and against plaintiff’s will. The pleas set up the usual installment form of contract, and that the property was purchased thereunder, and that a certain amount was due thereon, that demand was made for the return of property, etc., The following are charges 8 and 10: “(3) I charge you, gentlemen, that the power to take possession of the property embraced in the complaint and described in the contract is a power coupled with an interest, and created a license in favor of defendant, which became irrevocable without their consent.”</p> <p>“(10) If you believe from the evidence that there was a default in the payment, under the contract, of the plaintiff in this cause, defendant had a right to enter the premises of plaintiff and take possession of said property against his will and protest, if nothing more was said or done than a simple protest on the-part of plaintiff.”</p>

<p> Failure to Deliver Goods. </p> <p>1. Action; Loss of Goods; Nature and Form of Remedy. — In an action for the value of trunks transported by a carrier and not delivered, a count in Code form as upon a bill of lading, but having no allegation that the transportation was for a reward, was ex delicto.</p> <p>2. Same. — A count in trover for the value of trunks transported by a carrier, but not delivered, was ex delicto.</p> <p>3. Carriers; Goods; Failure to Deliver; Remedy. — Where plaintiff took certain household goods to a depot to be transported as freight, and also took two trunks to the depot, and informed the agent that they were to be carried as baggage, but before he had returned to the depot to purchase his ticket and have the trunks checked, they were sent forward by freight, and on demand were not delivered, the plaintiff could sue for the breach of duty arising by operation of law out of the carrier’s dealing with the trunks as freight, or in trover because of the exercise by the carrier of dominion over his property in defiance of his right to have it carried as baggage or riot at all; and the same consequences followed upon either theory of the case.</p> <p>4. Continuance; Special. — It rests- within the sound discretion of the trial court to grant or refuse an application for a continuance; and it is not reviewable unless abuse is shown.</p>

Heard before Hon. J. C. B. Gwin. Action by Edna Turner against the Louisville & Nashville Railroad Company, for damages for personal injuries received at a crossing. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals under the act creating said court.

Heard before Hon. S.,L. Brewer. Action by N. H. Graham against Alex Wall for damages for deceit. There was a judgment for plaintiff, and defendant appealed to the Court of Appeals under Acts 1911, p. 450, § 6, and it transferred the cause 'to the Supreme Court.

<p> Slander. </p> <p>1. Corporations; Tort; Slander; Liability. — Unless the corporation expressly directed the officer to use the words, the corporation is not liable for the slander uttered by one of its officers, though he be acting for its benefit and within the scope of his duty.</p> <p>2. Assault and Battery; Action; Evidence. — Where a plaintiff sought to recover damages for the insulting and abusive language used by the manager of defendant’s store, the tone of voice in which the words were spoken was admissible; for whether the act amounted to an assault or otherwise, depended largely on the tone.</p> <p>3. Corporations; Acts of Manager; Liability. — Where plaintiff stated to the manager that he would take money off a dead man’s eyes, and in reply thereto the manager used abusive and insulting language, and told her to leave the premises, the corporation was not liable, as the abusive language was not an incident to the duties of the manager.</p> <p>4. Assault and Battery; Acts Constituting. — An assault being an offer or attempt to strike or injure another, but without an actual battery, the fact that the manager of defendant’s store told plaintiff she was no lady, charged her with being a liar, and ordered her out, but did not use or offer to use any force, did not render the manager guilty of an assault for which defendant corporation was liable, and the only remedy of defendant was by an action for slander.</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. C. B. Smith.</p> <p>Action by Joseph A. Feast, pro. ami, against the Birmingham, Ensley & Bessemer Railroad Company, for damages suffered at a crossing. Judgment for plaintiff, and defendant appeals. Affirmed.</p> <p>Count 3 avers, in effect, the defendant was operating an interurban railway in Jefferson county, which ran along the public street known as Fifth avenue in the city of Birmingham, and that plaintiff was lawfully, rightfully, and properly attempting to cross the said public street at a public street crossing, namely, Twentieth street, and that defendant’s servants or agents were then and there engaged in and about the business of operating a street car over and along the said street, and above and upon said crossing, and the said servants or agents in charge or control of said car negligently permitted the same to run over, upon or against plaintiff while he was upon said, public street at said public crossing as aforesaid, thereby inflicting the following injuries (which are set out), and plaintiff avers that his said wounds and injuries were the proximate consequence and caused by reason of the negligence of such servants or agents. The demurrers were that the road was not on grade with the street; not averred or shown that plaintiff’s injuries resulted proximately from the negligence complained of; no causal connection was shown between the injury and the way in which the car was alleged to have been operated; and some others relative to the charge of wantonness.</p> <p>The following is the oral charge of the court which is excepted to: The motorman is also required to operate his car under such speed and with such control that, if persons or property be upon or dangerously near the track of a street railway, the car may be, with skillful application of stopping appliances, stopped and injury thereby averted. It is the duty which the motorman of defendant company in operation of the car at this place and at that time owed the people who were using this street.</p> <p>The second assignment of error is as follows (to the oral charge) : * * * But in regard to a child of tender years, that is, under seven years old, he has no right to assume that a child of such tender age, who is seen on or in such dangerous proximity, the law requires him to at once put his car under such control as to immediately stop it, if that becomes necessary to avert the injury; in other, words, and, if you are reasonably satisfied from the evidence in this case that the motorman saw the child on the track, then it became his duty at once to put his car under such control as to be able to immediately stop it, if it was necessary to do that in order to avert injury.</p> <p>The following is charge A: I charge you that, while it is the duty of defendant’s motorman to exercise reasonable care while approaching and along past the point of injury, yet I charge you that the streets of the city of Birmingham at the point of injury are not intended for use as a- playground for children, and the motorman is not under the duty of controlling his car to the degree which might be reasonable in approaching and passing through a children’s playground, if you are reasonably satisfied that he exercised reasonable diligence under all the circumstances, and with reference to the known and probable uses of the street.</p> <p>B. If you believe the evidence, you cannot find that defendant’s motorman was negligent in reversing the car, rather than in using the air in emergency.</p> <p>C. If you are reasonably satisfied from the evidence that the sole proximate cause of the injury was the fact that the little child was allowed to play unattended on the morning of the injury, your verdict should be for defendant.</p>

Heard before Hon. John H. Miller. Action by 'W. M. Earquhar against the Southern Railway Company. There was a judgment for plaintiff, - and defendant appealed to the Court of Appeals, and it, under Acts 1911, p: 450, § 6, transferred the cause to the Supreme Court.

Heard before Hon. J. C. B. Gwin. Action by Richard Wrigbt against the Tennessee Coal, Iron & Railroad Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals of Alabama under section 6, Act April 18, 1911 (Gen. Acts 1911, p. 450).

Heard before Hon. E. J. Garrison. Action by Amanda Smith against C. M. Williams for damages for being expelled from the public school. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. W. Mabry. Action by Tom Price against the Western Railway of Alabama for damages for killing a mule. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals under the act creating said court.

Heard before Hod. A. H. Alston. Action by J. H. Saxon against tbe Central of Georgia Railway Company for damages sustained in a crossing accident. From a directed judgment for defendant plaintiff appeals.

Heard before Hon. E. C. Crow. Action by Mary Alice Yessell as administratrix, against the Southern Railway Company for the death of her testatrix. Judgment for plaintiff, and defendant appeals.

Heard before Hon. John C. Pugh. Action by Mary Coleman against Sidney J. Hart. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts of 1911, p. 450.

Heard before. Hon. D. W. Speake. Action by B. M. Travis against tbe Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. The following is charge 43: If you believe the evidence, I charge you that the oysters and eggs eaten by plaintiff neither appeared tainted nor tasted tainted, nor smelled tainted.

Heard before Hon. A. H. Alston. Action by Charles Knowlton against the Central of Georgia Railway Company, for the destruction of property by fire, alleged to have been set out by the company’s engine. Judgment for defendant and plaintiff appeals.

Heard before Hon. W. C. Ferguson. Action by J. W. Crenshaw against the Birmingham Railway, Light & Power Company, for damages for malicious prosecution and false imprisonment. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals under the act creating said court,

Heard before Hon. James H. Ballentine. Action by A. C. Brentz against F. G. Hereford, for illegal arrest and false imprisonment. Judgment for defendant, and, from a new trial granted, defendant appeals. Transferred from the Court of Appeals under section 6 of Acts 1911, p. 450.

Heard before Hon. W. W. Haralson. Action by D. I. Ambrester against the H. H. Hitt Lumber Company, and others, in case, for the unauthorized use of a mule, and in conversion. Judgment for plaintiffs, and defendant appeals. Transferred from Court of Appeals under the act creating said court.

Heard before Hon. W. W. Haralson. Action by Reuben L. Ferguson against Robert O. Starkey, sheriff, for damages for false imprisonment. Judgment for defendant, and plaintiff appeals.

Heard before Hon. E. C. Crow. Action by A. W. Hilton against the Birmingham Railway, Light & Power Company, for damages for injury suffered in a collision with a street car. Judgment for defendant and plaintiff appeals.

Heard before Hon. W. W. Haralson. Action by J. O. Crow against J. H. McKown for damages for killing Ms dog. Judglnent for defendant, and plaintiff appeals. Transferred from the Court of Appeals under the act creating said court.

Petition by Y. A. Spenny for certiorari to review and revise the judgment and decision of the Court of Appeals, reversing and remanding the cause of Mobile & Ohio B. B. Go. v. Speivmf, 12 Ala. App. 375, 67 South. 740.

Heard before Hon. Saffold Berney. Action by Mary Roberts, as administratrix, against the Mobile Light & Railroad Company, for damages for the death of her intestate. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Thomas W. Wert. Action by Frank Rayburn against the Lousville & , Nashville Railroad Company for damages for the death of his intestate while on the track of the defendant company. Judgment for plaintiff and defendant appeals. ; Transferred from the Court of Appeals under the act creating said court.

Bessemer City Court. Heard before Hon. J. C. B. Gwin. Action by John Luster against the Republic Iron & Steel Company. Prom a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, p. 450, Acts 1911.

Heord before Hon. B. M. Miller. Action by L. C. Adler & Company against tbe Western Railway of Alabama. Judgment for tbe defendant, and plaintiff appeals. Tbe lease referred to in tbe opinion was as follows: State of Alabama, County of Dallas.

Heard before Hon. J. C. B. Gwin. Action by Mrs. Lula Grady against the Southern Railway Company for damages for carrying her past the station of her destination. Judgment for plaintiff, and the court having denied defendant’s motion for a new trial, defendant appeals. Transferred from the Court of Appeals, under the act creating said Court.

Heard before Hon. John H. Miller. Action by TV. TV. Watley against the Birmingham Waterworks Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450.

W. W. Haralson. Action by Luther C. Jordan against the Southern Railway Company for damages for injury to him while a passenger. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under the act creating said court.

T. U. Jones had judgment against the Louisville & Nashville Railroad Company for damages for the loss of freight, and defendant railroad company appealed to the Court of Appeals which affirmed the judgment of the lower court. The railroad company brings certiorari to review the judgment and decision of the Court of Appeals in that case. See L. & N. R. R. Go. v. Jones, 12 Ala. App. 347, 67 South/ 621.

Heard before Hon. John C. Pugh. Action by Hattie Rollins against the Best Park & Amusement Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Defendant was the proprietor of an amusement park, and operated what is known as a scenic railway.

Heard before Hon. J. C. B. Gwin. Action by Mike Steel against the Woodward Iron Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals, under section 6, Acts 1911, p. 449. The following are the grounds of demurrer to count 1: It does not appear that there was any breach of duty on the part of defendant to plaintiff. It does not appear that the act of Fred Huey was negligent in point of fact.

Heard before Hon. Gaston Gunter. Action by Mrs. Alice Mayben against tbe BetheaStarr Packing & Shipping Company for damages, for the destruction of the subject of bailment by fire. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under the act creating said court.

Heard before Hon. J. J. Curtis. Action by J. S. Bozeman, as administrator, against the Pratt Consolidated Coal Company, for damages for the death of his intestate. Judgment for plaintiff, and defendant appeals.

Heard before Hon. M. Sollie. Trover by T. I. Kennedy against the Steagall-Cheairs Fertilizer Company for the conversion of a bay horse. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under the act creating said court.

Heard before Hon. Samuel B. Browne. Action by Sylvia y Cia against Joseph W. Corry for deceit in the sale of a ship and the freight to be earned by her on her then voyage. Judgment for plaintiff, and defendant appeals. The case was tried on counts 3, 4, 5, 6, and 7 as amended, and the plea of the general issue.

Appear from Washington Circuit Court. Heard before Hon. John T. Backhand. Action by James B. Slade against the Southern Railway Company for damages for setting out fire. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450/ Count 1 as amended charges negligence in permitting combustible material to remain on the right of way. Count 2 charges a defect in the - locomotive for Avant of a spark arrester.

Heard before Hon. J. J. Curtis. Action by G Roux against the American Coal Corporation for personal injuries. Judgment for plaintiff, and defendant appeals. Plaintiff alleges: That while in the employment of defendant corporation certain cars broke loose and ran down the slope of a mine against plaintiff, injuring him and damaging him; that the mine was one of the Burn-well mines in Walker county, Ala., and that plaintiff was injured therein.

Heard before Hon. John H. Miller. Action by Sam Bradford against the Clinton Mining Company. Prom a judgment for plaintiff, defendant appeals. The first count charged the defect in the ways, works, machinery, etc., of defendant, in that the roof of the mine in which plaintiff was working was defective.

Jefferson Circuit Court. Heard before Hon. E. C. Crow. Action by Mrs. O. Ayer against tbe Birmingham Railway, Light & Power Company, for damages for personal injuries received in a collision between a street car and an automobile in which she was a passenger. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under the act creating said court.

Heard before Hon. John C. Pugh. Action by Mrs. Florence C. Strickland, as administrator, against the Birmingham Bailway, Light & Power Company, for damages for the death of her intestate, killed by a car at a street crossing. Judgment for plaintiff, and defendant appeals.

• Appeal from Walker Law and Equity Court. Heard before Hon. T. L. Sowell. Action by Dave Sanford against the Stitb Coal Company for damages for personal injury caused by rock falling from the roof of the mine upon him. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under the act creating said court.

Heard before Hon. J. J. Curtis. Action by S. G. Deason against John M. Gray and the sureties on his bond as sheriff, for damages for false imprisonment and assault and battery. Judgment for defendants, and plaintiff appeals.

Heard before Hon. John H. Miller. Action by Mary Washington against the Birmingham Railway, Light & Power Company for damages for injury received while a passenger. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under the act creating said court.

Heard before Hon. John H. Miller. Action by John E. Renes against the Southern Railway Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. W. W. Pearson. Action by C. B. Abernathy against the Louisville & Nashville Railroad Company for damages for injuries to his minor child. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. C. B. Gwin. Action by Ida May McDaniel against the Alabama Great Southern Railway Company, for damages for killing a cow. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911,‘p. 449, § 6. The facts sufficiently appear from the opinion of the court, as do the pleadings. The following charges were refused to defendant: (1) Affirmative charge. (2) Same as to first count of the complaint.

Heard before Hon. John C. Pugh. Action by John Wade against the Woodward Iron Company. Prom a judgment for plaintiff, defendant appeals.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. John H. Miller.</p> <p>Action by Mrs. M. L. Bush against the Seaboard Air Line Railroad Company for damages for injuries caused by falling into a ditcli. Judgment for defendant, and plaintiff appeals.</p> <p>The complaint, after stating the facts as stated in the opinion, alleges that plaintiff fell into the excavation and suffered the damages claimed as a proximate consequences thereof, and alleges that she suffered said injuries and damages as a proximate result of the negligence of defendant, its servants or agents, in negligently failing to provide lights or railings or guards or danger signals upon or near said concrete wall or excavation.</p>

Heard before Hon. Bernard Harwood. Action by John Going by next friend against the Southern Railroad Company for damages for injury while an employee. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 419, § 6.

Heard before Hon. C. B. Smith. Action by Thomas MeWilson against J. Turner Rhodes for a false imprisonment. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 45. The complaint is in four counts, two of which charge unlawful arrest and imprisonment, and two charging the same wrong with malice and without probable cause.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. H. A. Sharpe.</p>

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

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

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

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