Volume 193 — Alabama Reports

<p>Appeal from Tallapoosa Circuit Court.</p> <p>Heard before Hou. S. L. Brewer.</p> <p>Early Morris was convicted of murder and given the death penalty and he appeals.</p>

<p> Murder. </p> <p>Homicide; Self-Defense; Right to Claim. — The fact being that defendant, having eloped with the fourteen-year-old daughter of deceased, was pursued and overtaken by deceased, and deceased being armed and getting defendant into a close corner was killed by defendant, the defendant being without right to marry the daughter of deceased without his consent, forfeited any claim of justification on the ground of self-defense, because by eloping with her, he contributed to the situation out of which the necessity of taking human life arose.</p>

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. Wm. E. Fort.</p> <p>Sid Jones was convicted of murder, and he appeals.</p>

Heard before Hon. H. A. Pearce. Bill Gibson was convicted of murder in the second degree, and he appeals. In his argument to the jury, the solicitor said: “I understood, and no doubt the jury did, that what the witness Simmons said about what the defendant said that the defendant had done what he came there to do.”

<p> Murder. </p> <p>1. Trial; Objections to Evidence; Motion to Exclude. — The rule is that if it is apparent that illegal testimony will result from a responsive answer to a question asked, objection must be interposed to the question; Jience, if no objection is made to the question it is proper to overrule a motion to exclude the answer.</p> <p>2. Homicide; Evidence; Threats. — The fact that defendant had made threats against the police officer, although not particularizing either of the deceased officers by name, was admissible as tending to show an intentional and malicious killing of the policeman who had come to arrest him.</p> <p>3. Same; Surrounding Circumstances— As a general rule, in prosecutions for murder, evidence as to the relative position of a witness, the deceased and the defendant at the time of the killing is admissible.</p> <p>4. Witnesses; Credibility. — Evidence that certain witnesses had been placed in different places of confinement, was' competent as tending to shed light on the Credibility of their testimony.</p> <p>5. Trial; Argument of Counsel. — Where the state’s counsel had said in argument to the jury, “Don’t you think it about time we are calling a halt in this country? Don’t you think there has been enough officers killed in this country by outlaws, and that it is about time to stop them?” The statement was proper, and the objection properly overruled in the absence of a suggestion that the court instruct the jury to disregard it, the objection being made to the statement and not to the court.</p> <p>6. Homicide; Evidence; Drunhenness. — Questions as to what extent the defendant drank intoxicating liquors, or had been drinking such liquors for the last two or three years, were properly excluded as immaterial.</p> <p>7. Charge of Court; Covered by Those Given. — Where the court had already given a requested charge that the jury should acquit the defendant if there was a probability of his innocence, it was not error to refuse to instruct that the jury should acquit if there was a reasonable probability of his innocence, suggested by any part of the evidence.</p> <p>8. Same. — It is not error to refuse instructions substantially covered by written instructions given.</p> <p>9. Evidence; DrunJcenness. — -It was competent in a prosecution for murder, to show that defendant did not appear drunk, and was transacting business and talking sensibly.</p>

Ben Pollard was convicted of manslaughter and appeals to the Court of Appeals, and his case being there affirmed, he brings certiorari to review such judgment.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Tom Jackson was convicted of murder and sentenced to life imprisonment, and he appeals. The facts sufficiently appear.

<p>Appeal from Gadsden City Court.</p> <p>Heard before Hon. James A. Bilbro.</p> <p>Son Prater was convicted of murder and he appeals.</p>

<p>Appeal from Cullman Circuit Court.</p> <p>Heard before Hon. D. W. Speake.</p> <p>Alpheus Brindley was convicted of murder, and he appeals.</p>

<p> Murder. </p> <p>1. Charge of Court; Credibility of Witnesses. — A charge asserting that if defendant had wilfully and corruptly testified falsely as to any. material fact in the case, the jury might disregard any part or all of his testimony, was not erroneous as singling out and giving undue emphasis to his testimony.</p> <p>2. Witnesses; Privilege. — Under the statutes permitting a defendant in a criminal case to testify for himself, a defendant taking advantage thereof, and becoming a witness in his own behalf waives the constitutional protection against answering questions touching the merits of the case which might tend to incriminate him.</p> <p>3. Same. — Where defendant takes the stand in his own behalf, he may be examined by the state as to all facts material to his guilt, and his failure to explain or rebut any incriminating fact, when he can reasonably do so, may be considered by the jury as prejudicial to his innocence.</p> <p>4. Same. — Where a defendant voluntarily takes the stand as a witness in his own behalf, he may be recalled and examined further.</p> <p>5. Same; Impeachment; Defendant — Where a defendant voluntarily takes the stand as a witness in his own behalf he may be impeached in the same manner as other witnesses, such as by showing that he has been convicted of crime involving moral turpitude, or that he has made contradictory statements, or that he is a person of bad character.</p>

Heard before Hon. D. W. Speaks. George James was convicted of murder in the first degree, and he appeals. Aside from the general issue, defendant also interposed the plea of not guilty by reason of insanity.

Heard before Hon. H. A. Sharp. Action by Mrs. John A. Milner against tbe Brotherhood of Locomotive Firemen & Engineers, upon an insurance policy issued on the life of Hiliary H. Milner. Judgement for plaintiff, and defendant appeals.

Heard before Hon. E. C. Crow. Action by J. W. Clay against the Wahouma Drug Company, begun in an inferior court, and appealed to the circuit court. From a judgment there for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, Acts 191Í, p. 450. The facts sufficiently appear from the opinion of the court.

Heard before Hon. John C. Pugh. Action by Mary W. Singleton against the National Life & Accident Insurance Company, on one of its policies. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under the act creating said court.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. John H. Miller.</p> <p>Action by Mary H. Stokely against the Fidelity & Casualty Company of New York, on an insurance policy. Judgment for defendant, and plaintiff appeals.</p>

Heard before Hon. H. A. Pearce. Assumpsit by Vivian H. Marshall against Jesse W. Barnes. Judgment for plaintiff, and defendant appeals. The plaintiff was general agent for a life insurance company, and employed the defendant as his agent to solicit the application for insurance policies.

W. W. Pearson. Action by the Cotton Seeds Product Company against S. J. Ward for damages for breach of contract of sale.. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under act creating such court.

Heard before Hon. H. A. Si-iarpe. Action by the Central of Georgia Railway Company against the Southern Ferro Concrete Company to recover for freight undercharges. Judgment for defendant and plaintiff appeals.

Heard before Hon. W. W. Pearson. Action by E. G. Ensign and others against the Twin Tree Lumber Company, to recover a sum of money. Judgment for plaintiff, and defendant appeals.

Heard before Hon. W. W. Pearson. Assumpsit by the Commercial Bank & Trust Company against Howell Tatum. Judgment for plaintiff, and defendant appeals; plaintiff also takes cross-op-peal.

Heal’d before Hon. H. A. Sharpe. Action by Horace C. Wilkinson against the City of Birmingham to recover his salary as recorder. Judgment for defendant, and plaintiff appeals.

Heard before Hon. J. E. Blackwood. Proceeding between the State of Alabama and the South & North Alabama Railroad Company to correct an assessment. From a judgment for the State, the Railroad Company appeals.

Heard before Hon. John C. Pugh. Assumpsit by E. P. Cantrell against Ben F. Barbour. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911 (Gen. Acts 1911, p. 450).

Heard before Hon. John C. Pugh. Action by A. E. Fields against J. W. Altman and another, to recover for the illegal sale of property to him for taxes. Judgment for defendant, and plaintiff appeals.

Action by Connie Hunter against C. H. Austin & Sons and others, on a garnishment bond. Judgment for plaintiff, and on appeal to the Court of Appeals, the cause was affirmed, and appellants bring certiorari to review the judgment and decision of the Court of Appeals.

Heard before Hon. H. A. Pearce. Action by the Sales-Davis Company against the Henderson-Boyd Lumber Company. Demurrer to complaint sustained, and plaintiff appeals. Transferred from the Court of Appeals of Alabama under section 6, Act April 18, 1911 (Gen. Acts 1911, p. 449).

Heard before Hon. W. W. Whiteside. Bill by A. McAllister against Robert Lauderdale for an injunction to restrain the diversion of water. Prom a decree overruling á motion to dissolve, defendant appeals.

W. H. Simpson. Bill by the city of Florence against the Florence Land Company to enjoin the use of a public park by the land company. From a decree overruling demurrer to the bill, respondent appeals. The allegations of the bill sufficiently appear.

A. H. Benners. Bill by W. L. Sibley against the Linton Goal Company to redeem land from mortgage foreclosure sale. There was decree for respondent, and complainant appeals.

Heard before Hon. A. H. Benners. • Bill by Eli Wood and others, against George Tribble for partition of land. Decree for complainants, and respondent appeals.

Heard before Hon. W. H. Simpson. Bill by tbe Holland Blow Stave Company, against D. E. Barclay and another for tbe reformation of a written instrument. From a decree dismissing the bill, complainants appeal.

Heard before Hon. A. H. Benners. Bill by N. H. Kimbrell and another, against T. L. Stricklin to enjoin a judgment in ejectment, and for reformation of a written instrument. Decree for complainants and respondent appeals.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. John C. Pugh;</p> <p>Bill by Charlotte L. Procter, as Grand Protector of the Grand Lodge Knights and Ladies of Honor of the World, and another, for a mandatory injunction against C. F. Huffman and another. Decree sustaining demurrer to the bill and complainant appeals.</p> <p>The bill sets up: That the Grand Lodge complainant is a secret benevolent association of-local lodges of a society now doing business in Alabama, which provides death benefits to some of its members, not exceeding |300 to any one person, and is not an incorporation engaged in insurance business, and is doing business solely in Alabama, and has its principal place of .business at Birmingham. That said organization has for its purpose only the organization of lodges and the association of such persons as may be acceptable to said organization as desire to join its lodges and association for the purpose of participating in the said secret lodges for their mutual benefit and aid, as provided by its charter arid by-laws, and in connection herewith to issue to such members of such association as may apply therefor, and be acceptable to said association, a death benefit not exceeding |300 to any oné person. Complainant Proctor avers that she is Grand Protector and has been for the past five years, and is properly holding the said office, having been elected according to the constitution and by-laws of the Association. The bill then proceéds to set up the acts and doings of Mamie Adams, one time Grand Secretary of the tax department of said lodge, tending to destroy the association and to bring dissatisfaction and discord, and that she'has resorted to the insurance department of the State of Alabama, which has brought about an order to C. S. Huffman to make some kind of investigation of the books and affairs of said corporation, etc.</p>

Heard before Hon. H. A. Sharpe-. Bill by William M. Bagley and others against the Republic Iron & Steel Company, and one Isaacs, to enjoin them from the use of entries on land for transporting coal from other land and to enjoin the use of air shafts, etc. Isaacs made his answer a cros-bill, whereupon complainant and' cross-complainant appeal.

Heard before Hon. E. C. Crow. Bill by the Ensley Mortgage & Realty Company against Ivey P. Lewis to effect a redemption of land from sale under an execution. Decree for respondent, and complainant appeals. The bill alleges: That on December 12, 1912, complainant, for a valuable consideration, purchased from J. J. Braswell the following described property or land situated in Jefferson county, Ala.

Heard before Hon. Gaston Gunter. Bill by tbe City of Montgomery against tbe Postal Telegraph-Cable Company. Prom a decree for complainant, defendant appeals.

Heard before Hon. W. R. Chapman. Bill by W. J. Hides against Joe Meadows and another to restrain the prosecution of a detinue suit for the recovery of a certificate of deposit. From a decree sustaining demurrer to the bill, complainant appeals

Bill by Nettie Cooper and another against Febbie Stockdale to cancel mortgage, and for an accounting and redemption. There was judgment for complainant, and respondent appeals.

Heard before Hon. W. R. Ci-iapman. Bill by J. E. Henderson against Y. Allen Holman and others, to enjoin the sale of property under execution. From a decree sustaining demurrer to -the bill the complainant appeals.

Hea^d before Hon. W. II. Chapman. Bill by J. F. Jones against P. M. Johnston and another to reform a deed. From a decree sustaining demurrers to the bill, complainant appeals.

<p>Appeal from Shelby County Court.</p> <p>Heard before Hon. E. S. Lyman.</p> <p>Bill by the Kaul Lumber Company against J. R. Phillips and others to enjoin a trespass and for a recovery of damages. From a decree for complainant, the respondents Brewer and Moore appeal.</p> <p>The bill alleges that complainant is the owner of certain lands, valuable only for timber purposes, and that respondents own and operate a sawmill on adjoining lands, and have entered upon, wrongfully and unlawfully cut and carried away timber from said land; that the trespasses have been repeated and continued, although respondents and their agents and servants have been repeatedly warned not to do so. The bill alleges that Phillips was alone until the 19th day of October, 1913, but since that time has associated with him Brewer and Moore, and that they, together with Phillips, have continued to trespass. There was decree pro confesso, and, after proof taken as to the damage, judgment was entered decreeing a money judgment of $225 against respondents named.</p>

<p> Bill to Quiet Title. </p> <p>Quieting Title; Bill; Offer to Do Dquity. — Although a bill filed under the Code (Section 5443-5449) is not demurrable for a failure to offer to do equity, yet where it appears that the respondent claimed as mortgagee under a mortgage given for value by the mort-' gagor, but which mortgage is invalid because of the mortgagee’s failure to comply with the provisions of Sections 3642-3644, Code 1907, relief will not be granted unless complainant offers to do equity by repaying a consideration received, or as much thereof as remains unpaid.</p>

Heard before Hon. W. H. Simpson. Bill by Mollie G. Hall against Cornelia Bennett and others, to subject lands to the satisfaction of a judgment. Prom a decree sustaining demurrer to a cross bill and dismissing it, respondents appeal.

Heard before Hon. T. L. Sowell. Bill by Martin O’Rear against C. M. Sartain and others constituting the Commissioner’s Court of Walker County, to enjoin them from letting contracts for the construction of certain bridges. From a decree dissolving the injunction, complainant appeals.

Heard before Hon. Thomas H. Smith. Bill by A. J. Melville against the Fairhope Single Tax Corporation, for a dissolution thereof, and for other relief. From a decree overruling demurrers to the bill, respondent appeals.

Heard before Hon. Gaston Gunter. Bill by Teresa F. Wing, and another against T.-B. Hill to enjoin him from obstructing án alleyway abutting on her property. From a decree for complainant respondent appeals.

Clair Chancery Court. Heard before Hon. W. W. Whiteside. Original bill by W. W. Woodruff against H. H. Black, to rescind a contract of purchase, with supplemental bill to enter as a decree and enforce the award of arbitrators in the matter of the original bill. Prom a decree specifically enforcing the aivard, respondent appeals.

Heard before Hon. Thomas H. Smith. Bill by Joel A. McDavid against the Bank of Bay Minette, and the State Superintendent of Banks, to enjoin such superintendent from interfering with or otherwise handling the assets of the bank, and for an accounting. From a decree denying the injunction, complainant appeals.

Heard before Hon. W. H. Simpson. Bill by Ella Coburn and others against Rosser J. Coke as trustee and others, to quiet title to land. From a decree denying relief and dismissing the bill complainants appeal.

Heard before Hon. Thomas H. Smith. Bill by W. G. Hibbler and others, against Sallie J. Oliver and others, to sell lands for distribution, among tenants in common, and incidentally for damages for waste. Decree for respondents and complainants appeal.

Heard before Hon. W. H. Simpson. Bill by Margaret M. Cowley, against Thomas L. Farrow and others, to cancel a mortgage given on her property because given to secure the debts of her husband. Decree for respondents and complainant appeals.

Heard before Hon. Saffold Berney. Bill by Thomas L. Lloyd against John R. Yidmer and others, to quiet title to'land. Decree for complainants and respondents appeal.

<p>Appeal from Crenshaw Chancery Court.</p> <p>Heard before Hon. L. D. Gardner.</p> <p>Bill by R. F. Bryan and others against Drum &-Ezekiel and others, to set aside a foreclosure sale, and redeem, or to cancel the foreclosure deed as a cloud on complainant’s title. From a decree granting complainant’s relief in part, respondents appeal.</p>

<p>Appeal from Houston Chancery Court.</p> <p>Heard, before Hon. W. R. Chapman.</p> <p>Bill by the Bell Lumber Company and others, as judgment creditors against Dothan Lumber Company and others, to cancel certain conveyances as a fraud on creditors, and for general relief. From a decree overruling demurrers to the bill, respondents appeal.</p>

<p> Bill to Cancel Deed For Frond. </p> <p>Brokers; Duty to Principal; Interest of Broker. — Where an ignorant negi’o woman procured a real estate agent to sell her lands for her, and he persuaded her to execute an option to him thereon for about half the price, or half what the land is worth, and she files a bill against him, to cancel a deed made pursuant to the option, the burden was upon him to prove that the transaction was just, fair and equitable in every respect; the fact that he had acquired an option not destroying the relation of principal and agent, and its‘attendant confidential relation.</p>

Heard before Hon. Gaston Gunter. Bill by Isadore Weil against Eugene L. Hill to enjoin the removal of a house nearer the street. Prom a decree dismissing the bill for want of equity, complainant appeals.

Heard before Hon. W. R. Chapman. Bill by the state of Alabama on the relation of its Attorney General against the Advertiser Company, and others to restrain it from inserting advertisements of alcoholic or spirituous liquors. Prom a decree overruling demurrers to the bill, and denying motion to dissolve a temporary injunction, respondent appeals.

<p> Bill of Review. </p> <p>1. Equity; Bill of Bevieio; Scope of Hewing. — On a bill of review for error apparent of record, questioning the correctness of the final disposition of the cause as affecting the substantial rights of the complainant, the answer must be found on the face of the-record, including all the proceedings, except the evidence, which cannot be considered.</p> <p>2. Same; Issue, Proof and Variance. — -Under Section 4094, Code 1907, a party must stand on his own pleadings.</p> <p>3. Descent and Distribution; Vendor and Purchaser; Hen. — The-debt of a purchaser of land, who has executed purchase money notes to secure the same, is a lien on the land which follows the land upon its descent to the heirs.</p> <p>4. Bills and Notes; Parties; Joint. — Where complainant and respondent took a joint deed to realty, and gave their joint notes, the-one was surety for the debt of the other, who was the principal obligor for his half of the debt.</p> <p>5. Subrogation; Right to; Surety on Purchase Money Note. — Where one who, with another, took a joint deed to realty, both giving joint notes to secure the purchase money, and on the other's failure to-pay his half of said indebtedness was compelled to pay the whole, filed a bill not specially claiming a vendor’s lien or subrogation eonomine, such one was entitled to subrogation to the vendor’s lien against his co-purchaser and his heirs, and entitled to stand in the; place of the vendor with all his remedies and preferences.</p> <p>6. Same; Enforcement. — In such a case there was no presumption' that the vendor had taken independent security, or waived the lien which otherwise equity raised up for his protection; but if there was-in fact a forfeiture, it was a matter to be set up in defense and proven.</p> <p>7. Equity; Review; Matters Considered. — On a bill of review the ehancery court considers errors of substance only.</p> <p>8. Same; Error as to Parties. — Where complainant had purchased’ land jointly with another and had executed a joint note for the purchase money, and because of the failure of the co-purchaser, was compelled to pay the entire debt, -where the amount of the indebtedness for which a lien was sought was fixed against the heirs of the-^purchaser, the failure of such complainant in his bill for subrogation to make the personal representative of his eo-purchasei" a party respondent, if error, was not error to work a reversal of the decree on a bill of review, it not being shown to have prejudiced an heir in the determination of the amount.</p> <p>9. Same; Proof; Chancery Practice; Compliance. — Where the record showed a bill for subrogation to a vendor’s lien against a co-purchaser of complainant, and the heirs of such co-purchaser, and the record recited “Jan. 27, 1896, Testimony ordered published and cause submitted on pleadings and proof for decree in vacation and “July 27, 1896, Continued under former order of submission, the file to be forwarded to the Chancellor by Feb. 10th, nextand there was a purported note of testimony, certified as of July 27, 1896, whereon the Chancellor decreed on April 7, 1897: “This cause was submitted on pleading and proof in term time for consideration and final decree in vacation, and is argued and heard on such submission,” the effect of rule 75, Chancery Practice, is, by reference to the note of testimony, to make a record of the evidence and to bring to the Chancellor’s attention evidence upon which the parties r;ely, and upon appeal to inform the Supreme Court as to the evidence considered by the Chancellor, and that, while the Supreme Court will reverse decrees where the evidence on which they have been based is not noted as the rule requires, yet in this ease, there was a substantial compliance with the rule in the proceedings sought to- be reviewed.</p> <p>10. Vendor and Purchaser; Lien; Sale; Confirmation. — Am order of sale, made after the register had reported, and after exceptions by the guardian ad litem of the minors had been heard and overruled, and a deed to the purchaser made, could only have meant that the sale was to be made subject to confirmation, and gave the purchaser notice of the meaning and effect of the decree, and with a report of execution of the decree, and an order after report of sale that the report had been read and by consent in open court, had been confirmed, was a sufficient provision 'for report and confirmation, when brought in review by bill of review.</p> <p>11. Same. — Upon such a bill, where the facts necessary to a lien and the amount of the indebtedness thereby secured had been ascertained by judicial proceedings in which such fact had been contested by the guardian ad litem for the minor heirs, and the sale had been made as required by law, the decree confirming the sale of the land to the satisfaction of the lien, would not be set aside on the ground that the report of sale had been confirmed by consent, since there was no inference therefrom that the minor respondents had not had the protection required by law, and the usages of the court.</p>

Heard before Hon. H. A. Sharpe. Bill by First Avenue Coal & Lumber Company against S. J. King and others to determine priority of lien, and to quiet title. From a decree denying relief, complainants appeal.

Heard before Hon. W. W. Haralson. Detinue by J. N. Nixon against W. H. Smith and others. Prom a judgment for defendants in circuit court, on appeal from a justice’s court, plaintiff appeals. Transferred from the Court of Appeals under section 6, Acts of 1911, p. 450.

• Heard before Hon. Edward J. Gilder. Detinue by John H. Minge against W. C. Clark and others to recover certain certificates of stock. Judgment for defendants and plaintiff appeals.

<p>Appeal from Lawrence Circuit Court.</p> <p>Heard before Hon. A. H. Alston.</p> <p>Detinue by E. D. Reynolds against J. W. Hardee. Judgment for defendant and complainant appeals.</p> <p>Transferred from Court of Appeals under the act creating said court.</p>

Heard before J. C. B. Gwin. Detinue by the Donaboo Horse & Mule Company against Steve Durick. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. The facts sufficiently appear.

Heard before Hon. Ed. T. Albritton. Detinue by the King Mercantile Company against Mrs. Ola Adams. From a judgment for defendant, plaintiff appeals. Transferred by law from Court- of Appeals. The suit was for the recovery of a mule, a wagon, and a cane mill outfit, the latter alleged to- have been affixed to land belonging to- the defendant.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. E. C. Crow.</p> <p>Action by John Doe on tbe demise of Sam Arnett against Richard Roe with notice to R. L. Crowder. From a judgment for plaintiff defendant appeals.</p>

<p> Ejectment. </p> <p>1. Ejectment; Disclaimer ;° Amendment. — Section 5367, Code 1907, authorizes an amendment^ of a disclaimer in ejectment at the trial and just before the cause is submitted to the jury, although a disclaimer is not, strictly speaking, a pleading.</p> <p>2. Same; Costs. — Where there was no controversy as to the minerals apart from the surface, and defendant amended his disclaimer at the trial in ejectment so as to include the minerals under the surface claimed by him, because such minerals were reversed by his grantor the plaintiff is not entitled to judgment for costs where the delay because of the amendment, did not result in any additional cost.</p> <p>3. Same; Judgment; Mineral Right. — Where the defendant disclaimed mineral rights as being reserved by his grantor, and plaintiff made no claim to the minerals apart from his claim to the surface, the possession of which -was awarded to defendant, plaintilt was not entitled to judgment for the mineral rights so disclaimed.</p> <p>4. Adverse Possession; Claim; Filing. — Where defendant claimed both under color of title, and as a bona fide purchaser, the statute requiring the filing of a written declaration of claim is without application.</p> <p>5. Ejectment; Disputed Boundary. — Where the rights of the parties depended on the location of the line between their co-terminus property, it was not error to charge the jury to find for the defendant if they found the bounds to be as claimed by him, notwithstanding there was no formal suggestion of a disputed boundary line as provided by section 3843, Code 1907.</p> <p>6. Same; Verdict; Certainty. — Where the suit in ejectment, and the disclaimer properly defined the land in controversy, a verdict responding to the issues thus presented was certain and definite.</p>

<p>Appeal from Winston Circuit Court.</p> <p>Heard before Hon. W. B. Banki-iead, Special Judge</p> <p>Ejectment by C. D. Haley against W. N. Miller and others. Judgment for defendants and plaintiff appeals.</p>

Application by the state on the relation of the Attorney General for mandamus directed to the judge of the Montgomery City Court to require him to re-sentence certain prisoners. The Court of Appeals granted the writ of mandamus and respondent filed petition for certiorari to review the judgment of the Court of Appeals.

<p> Mcmdamus. </p> <p>Dismissal and Non-suit; Setting Aside; Expiration of Terms; Powers. — Where the attorneys for both parties agreed upon a continuance, but neither had a formal order of continuance entered, and on the call of the case the court dismissed it for want of prosecution, and defendant’s attorney subsequently agreed orally with plaintiff’s attorney that he would have the order of dismissal set aside and the cause re-instated, but the matter was overlooked; and at a subsequent term of the court with these facts before it, and over the objection of the attorneys for the defendant, the court set aside the dismissal and restored the cause to the docket, such action was without authority, since the court is without power over its final judgment after the close of the term, except for the correction of clerical errors or omissions; such case not being within the rule that after a case is put out of court by an order irregularly entered, the party who would profit by the order may put the case again within the power of the court by appearing at a subsequent term and participating in its litigation.</p>

<p> Injunction Against Advertising Liquors. </p> <p>1. Intoxicating Liquors; Regulation; Anti-Advertising Laiv. — The Anti-Advertising Liquor Law, Acts 1915, p. 37, is all in the present tense and contains no indication of exception or postponement of time when it shall become effective, but instead makes it effective immediately on enactment because required by the public welfare, and it applies at once to all sections of the state, including territory where the sale of liquor was permitted under the local option statute.</p> <p>2. State; Powers; Police. — The police power of the state to impose restraints and burdens on persons and property for the public health, good order and prosperity, was not surrendered to the general government, nor restrained by the Federal Constitution, and is exclusive.</p> <p>2. Intoxicating Liquors; Regulation; Police Power. — The regulation or prohibition of the manufacture and sale of intoxicating beverages is a proper subject for the exercise of police ppwer.</p> <p>4. Same; Injunction. — A bill for injunction against violation of the anti-advertising liquor law need not negative the application of the rule concerning original packages in inter-state shipments, that being a matter of defense.</p> <p>5. Commerce; Regulations; Original Packages; Newspapers.— Where newspapers which are published out of the state are received by a dealer within the state, the bundles broken and the individual papers placed upon sale, such papers are no longer original packages, but become mingled with the property of the state generally, and subject to state regulation.</p> <p>6. Same; Anti-Advertising Liquor Ladv; Constittitionality. — The Anti-Advertising Liquor Law as applied to a newspaper published out of the state, and containing advertisements of liquor manufactured out of the state, and to be shipped to individuals in the state ordering it, does not violate section 8, article 1, of the Federal Constitution, since the states have the right to prohibit sales of intoxicating liquors, and incidentally the right to prohibit solicitation of such sales whether by agent or advertisement.</p> <p>7. Courts; Decision; Constitutional Construction. — A decision of the United States Supreme Court construing the Interstate Commerce Clause of the Federal Constitution is final and binding on the state courts, and a former decision of the state courts, in conflict therewith, is thereby overruled.</p> <p>8. Intoxicating Liquors; Advertising. — Since the power to prohibit or regulate the sale of intoxicating liquors, includes also the power to prohibit solicitation for such sales by advertisement or agent, the enactment of the Anti-Advertisement Liquor Law of 1915, was a proper exercise of the police powers of the state.</p>

E. R. Merrill filed a bill against the Board of Revenue of Covington County and others to enjoin the erection of a courthouse, and for other relief. From certain orders and decrees holding. respondents in contempt for violating the injunction, respondents bring certiorari.

Heard before Hon. H. A- Pearce. Petition by Norman Pike, as relator in the name of the state, for mandamus to the Home Guano Company and its general manager, compelling them to permit relator, as a stockholder of the Home Guano Company to malte an examination of the corporate books and accounts. From a decree for relator respondents appeal.

<p>Appeal from Bibb Circuit Court.</p> <p>Heard before Hon. B. M. Miller.</p> <p>R. W. Edwards and others brought certiorari to quash the proceedings of the Bibb County Board of Commissioners in a matter of an election to establish a stock law district in said county. There was judgment dismissing the writ, and petitioner appeals.</p>

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. Horace Stringfellow, Special Judge.</p> <p>Information in the nature of quo warranto by the state of Alabama on the relation of W. A. Gunter and others, against J. A. Thompson and others, acting as a Bo'ard of Public Safety for the City of Montgomery. Judgment for respondents and relators appeal.</p>

Heard before Hon. Price Williams. Zoé Cañizas, as executrix of tbe last will of Manuel Cañizas, filed ber petition for a final settlement of ber estate, with objection and contest by Rose C. Eastburn and others. From a judgment granting final settlement, contestants appeal.

Heard before Hon. R. L. Faucett. Petition by W. J. Underwood for the probate of the will of Martha Underwood, contested by Bertha Hall Keeble. From a judgment admitting the will to probate, contestant appeals.

Heard before Hon. W. W. Pearson. W. I. Mullins had judgment against G. M. Baker, Avith execution thereon, which was levied upon certain lands, with motion for an order of sale of the same. Baker interposed a claim of homestead exemptions thereto, and after a hearing the court directed the jury to find the issues in favor of claimant Baker, and Mullins appeals. Transferred from Court of Appeals under the act creating said court.

Heard before Hon. S. L. Brewer. On proper proceedings Massey Peters was removed and disbarred from the practice of law in all of the» courts of this state, and he appeals.

Heard before Hon. E. J. Garrison. Claim suit between Bieldey, McClure & Co-., plaintiffs in execution, and R. A.- Porter and others, claimants. Judgment for claimants, and said plaintiffs appeal.

Heard before Hon. W. W. Haralson. Action by Mollie C. West against J. T. Maddox and others for the conversion of pine and oak timber and ■cedar poles. Prom a judgment for defendants, plaintiff appeals.

Heard before Hon. Hugh D. Merrill. Action by G. W. Reaves against T. D. Maybank, for damages for the death of plaintiff’s son caused by an automobile collision. Prom a judgment for defendant, plaintiff appeals.

Heard before Hon. C. B. Smith. Action for malicious posecution by W. C. Morris against the Birmingham Bottling 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).

Appeal, from Talladega Circuit Court. Heard before Hon. Hugh 33. Merrill. Action by J. J. Mickle against the Southern Bell Telephone & Telegraph Company, for damages for injuries from tripping and falling on a wire. Judgment for defendant and plaintiff appeals.

Heard before Hon. John H. Miller. Action by John A. Thompson against the Warrior River Coal Company. Judgment for plaintiff, and defendant appeals. The complaint shows that plaintiff was employed in defendant’s coal mine, and while doing his proper work a part of the roof fell upon him and injured him.

Heard before Hon. Thomas W. Wert. Action by C. F.'Hall against tbe Louisville and Nashville Railroad Company for damages for injuries suffered while in its employment. Judgment for plaintiff and defendant appeals.

Heard before Hon. D. W. Speake. Action by John B. Shelton against Thomas R. Shipp, as sheriff, and his sureties on his official bond, for trespass. There was a judgment for plaintiff, and defendants appealed to the Court of Appeals, and it transferred the case, under Act April 18, 1911 (Laws 1911, p. 450) § 6, to the Supreme Court.

Heard before Hon. C. B. Smith. Action by George Heis against Sam Erlich and another for damages for the death of his child, caused by an automobile. Judgment for plaintiff and defendant Sam Erlich appeals.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>Appeal from Coosa Chancery Court.</p> <p>Heard before Hon. W. W. Wi-iiteside.</p>

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