Volume 194 — Alabama Reports

<p> Murder. </p> <p>Bills of Exceptions; Filing; Time; Judgment. — The time within which a bill of exceptions must be presented to the trial judge for signing, under section 3019, runs from the date when the judgment was rendered and entered, and not from the date of the sentence; hence, a bill of exceptions presented, to the trial judge on January 22, 1915, wa% not presented within the time allowed where judgment was rendered and entered on October 21st, previous, notwithstanding sentence wms not imposed until October 24th.</p>

<p> Murder. </p> <p>1. Homicide; Degree; Evidence.- — The evidence examined and held to sustain a conviction of murder in the second degree.</p> <p>2. Same. — Since the statute requires that the jury shall fix both the degree of the crime, and the measure of the punishment in a homicide case, the court cannot be required to instruct the jury that they must convict defendant of murder in the first degree or else acquit him, nor was it error for the court to decline to set aside the verdict on that account.</p> <p>3. Jury; Venire; Quashing; Waiver. — Where a defendant, in a murder case, waives in writing a special venire, as authorized by section 7264, Code 1907, there was no error in declining to quash the venire selected for the trial.</p> <p>4. Same; Ground, — The fact that some of the jurors constituting the panel were incompetent or ineligible to serve as such, furnishes no ground for quashing the regular and agreed panel; such objection going to the- individual juror and not to the panel.</p> <p>5. Homicide; Evidence; Weapon. — There was no error in permitting the state to show that a pistol was found in the wood near the scene of the homicide, or in allowing a witness to describe it and to testify that one chamber was empty, since such evidence tended to show the means by which the crime was committed, and that the pistol was that of defendant.</p> <p>6. Witnesses; Competency; Interest. — A defendant, upon cross-examination, may inquire into the interest or feeling which a witness had in the prosecution, as affecting thé worth or credibility of his evidence.</p> <p>7. Same. — The bias or prejudice of a witness does not affect his competency, but the weight or credibility of the evidence he gives; hence, the court properly declined to allow a witness for the prosecu-' tion to be examined by defendant on his voir dire to ascertain his ■ bias or prejudice.</p> <p>8. Same; Impeachment; Contradictory Statement. — Voluntary statements made by a witness concerning the shooting, tending to exculpate the defendant and not to show his guilt except as it might be inferred from the identity of the pistol found with that of defendant’s were admissible to show contradictory statements made by defendant; and if confessions, and they were voluntary, such statements were admissible as such.</p> <p>9. Homicide; Evidence. — The description of the character of the mud at the scene of the shooting, and upon the clothes of defendant, and evidence as to whether a person could throw a pistol from where the shooting was done to where the pistol was afterwards found, and as to whether few or many persons passed the road about the time of the shooting, were admissible.</p> <p>10. Witnesses; Contradiction.- — Evidence as to a conversation had between defendant, the witness and one B., was competent to prove the statements of defendant in answer to the questions of B., and that defendant and B. differed in their testimony as -to such conversation, since such,evidence tended to corroborate B., and to contradict defendant.</p> <p>11. Examination; Character. — Where defendant introduced as a character witness the pastor of his church, it was competent on cross-examination to inquire of such witness the motive which led him to inquire about the character of the members of his church, the defendant being one of that class.</p> <p>12. Homicide; Evidence. — Where defendant was charged with shooting his father, evidence as to whether defendant knew that his father had insurance on his life, and if so, how-much, was admissible as tending to show motive.</p> <p>13. Evidence; Opinion.- — There was nd error committed in permitting witnesses to testify to the character and size of bullet holes which would be made by bullets of 32, 38, 41 and 44-caliber pistols at different ranges, and on entering and leaving an object, where such witness has made observation as to and had had experience with such pistol.</p> <p>14. Charge of Court; Argumentative. — Written instructions which are either argumentative or give undue prominence to parts of the evidence or possess misleading tendencies, are properly refused.</p> <p>15. Same; Covered Toy Those Given. — It is never error to refuse charges which have been fully covered in written charges given.</p> <p>16. Neto Trial; Criminal; Review. — At the time of the trial of this cause the denial of new trial in criminal cases was not reviewable on appeal.</p>

Appeah from Gadsden City Court. Heard before Hon. J. A. Bilbro. Harmon Hill, alias, was convicted of murder in the first degree, sentenced to imprisonment for life, and he appeals. Defendant was prosecuted for killing Will Tidwell. He was killed on Thursday and his body not found till Sunday. The physician testified that death was the result of a gunshot wound in the left breast.

Fanny Daly was convicted of using abusive, insulting or obscene language in the presence of a woman, and appeals to the Court of Appeals, where her cause was affirmed. See 13 Ala. App. 310, 69 South. 338. And she brings certiorari to review the judgment and decision. of the Court of Appeals.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. C. B. Smith.</p> <p>Action by George H. Hoffman and others, administrators, against the Birmingham Railway, Light & Power Company. From a judgment for defendant, plaintiffs appeal.</p> <p>The following is charge 3, given at the request of defendant : The court charges the jury that if, after a fair consideration of all the evidence, your minds are left in a state of confusion as to whether or not plaintiffs are entitled to recover, you cannot find for plaintiffs.</p> <p>Charge 4: The court charges'the jury that the burden of proof in this case is on plaintiffs to prove to the reasonable satisfaction of the jury, not only that plaintiffs’ intestate was killed by a street car of defendant, but that the operatives of said street car actually discovered plaintiffs’s intestate on or near defendant’s track, in peril of being struck by said car, in time to have avoided striking him, and that thereafter the operatives of said street car negligently failed to use all the means at hand to avoid striking the ifitestate.</p> <p>The following is the substance of count 2, referred to in the complaint: (2) After stating the character in which plaintiffs sue, and the business, of defendant, it is alleged that plaintiffs’ intestate was in a place of danger upon or near defendant’s track in Jefferson county, Ala., and defendant’s agents or servants were at the time engaged in operating or running an electric car over defendant’s said track, and plaintiffs aver that their intestate was upon or near said track, at said time, at said place, when said electric car- was approaching said intestate, and said intestate was in danger. Plaintiffs aver that said danger, of said intestate was seen or known at the time to defendant’s servants or agents in charge or control of defendant’s said electric car, but, notwithstanding such knowledge on their part, defendant’s said servants or agents in charge or control of said car negligently permitted the same to run upon, over, or against plaintiff’s intestate, and that the death of their said intestate was proximately the consequence of, and was caused by reason of, the negligence of defendant, its servants or agents, as aforesaid.</p> <p>Count 3 was as follows: Plaintiffs, who sue as administrators of the estate of Leo H. Hoffman, deceased, claim of the defendant the sum of fifty thousand ($50,-000) dollars, for this: That heretofore, to wit, on the 16th day of August, 1912, the ‘ defendant was engaged in the following business in the state of Alabama, viz.: The operation of a street railway, and the running thereon of electric cars propelled by electricity, for the transportation of passengers for hire. That on, to wit, the above-named date, plaintiffs’ intestate was in a place of danger upon or near defendant’s street railway track at the following place, viz.: In a public street in the city of Birmingham, Jefferson county, Alabama, and. the defendant’s agents or servants were at the time engaged in operating or running an electric car over and along said railway, and over and along said public street. And plaintiffs aver that their intestate was upon or near defendant’s said track on said public street, and defendant’s said electric car was approaching said intestate, and said intestate was in danger. And plaintiffs aver that the danger of said intestate was known at that time to the defendant’s servants or agents in charge or control of defendant’s said electric car; but, notwithstanding such knowledge on the part of the defendant’s servants, the defendant’s said servants or agents in charge or control of said electric car negligently permitted the same to run upon, over, or aginst the plaintiffs’ intestate, thereby killing him. And plaintiffs aver that the death of their said intestate was the proximate consequence of, and was caused by reason of, the negligence of the defendant, its servants or agents,' as aforesaid.</p>

Heard before Hon. S. L. Brewer. Action by E. W. Weaver against tbe Central of Georgia Railroad Company, for damages for delay in transporting a carnival outfit and troup. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under act creating said court.

Heard before Hon. W. W. Haralson. Action by Mike Brewster against the Southern Railway Company for damages for the loss of a bale of cotton. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under act creating said court.

Heard before Hon. D. W. Speake. Action by R. G. Fleming as administrator against tbe Louisville & Nashville Railroad Company for damages, for the death of his intestate, brought under the Federal Employers’ Liability Act. Judgment for plaintiff and defendant appeals. The facts and pleadings sufficiently appear.

Heard before Hon, H. A. Sharpe. Action by R. B. Broyles and others against the Birmingham Railway, Light & Power Company, for damages for injury to a truck. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under act creating such court. Counts 1, 2, and 3 describe the place of the injury as First avenue and Fifty-Fourth street, at a public street crossing in the city of Birmingham, which was a large, populous, and incorporated city.

Heard before Hon. E. C. Crow. Action by J. L. Bumpas against tbe Florence Hotel Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

Jackson Circuit Court. Heard before Hon. W. W. Haralson. Action by W. M. Bates against the Southern Railway Company for injuries while on its premises. Judgment for plaintiff, and defendant appeals.

Heard before Hon. W. W. Haralson. Action by Mit Peters against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. O. B. Smith. Action by Morton K. Moore, against T. C. Cairns. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Gaston Gunter. Action by Evelyn W. Burton against the International Agricultural Corporation, for damages because of injury to her crops. Judgment for plaintiff and defendant appeals.

Heard before Hon. H. B. Foster. Action by A. J. Widener against the Alabama Great Southern Railroad Company. Judgment for defendant, and plaintiff appeals.

Heard, before Hon. C. B. Smith. Action- by Julia Quinton, as administratrix, against the Republic Iron & Steel Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. John H. Miller. Action by D. A. Moore against the Tennessee' Coal, Iron & Railroad Company, for damages for personal injuries received while engaged in its employment. From a judgment overruling demurrer to the second count, defendant appeals.

Heard, before Hon. Bernard Harwood. • Action by Burlie S. Carpenter against tbe Birmingham-Tuscaloosa Railway & Utilities Company. From a judgment for plaintiff, defendant appeals.

Heard béfore Hon. J. C. B. Gwin. Action by Joe Davis against the Tennesse Coal, Iron & Railroad Company, for damages for personal injury. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under act creating said court.

Heard before Hon. M. Sollie. Action by Canty Chambers against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. D. W. Speake. • Action by C. F. Yarbrough against tbe Nashville, Chattanooga & St. Louis Railway'for overflowing plaintiff’s property by maintenance of an embankment. There was a judgment for plaintiff, and defendant appealed to the Court of Appeals, and it transferred the cause, under Gen. Acts 1911, c. 449, § 6, to the Supreme Court.

Heard before Hon. C. B. Smith. Action by L. D. Williams against the Birmingham Railway, Light & Power Company, and another, for damages for injuries suffered in a collision. Judgment for plaintiff against the Birmingham Railway, Light & Power Company, and it appeals. Transferred from Court of Appeals under act creating said court.

Heard, before Hon. J. J. Curtis. Action by M. M. Amerson, as administrator against the Corona Coal & Iron Company. Judgment for defendant, and plaintiff appeals. The complaint alleges that plaintiff’s intestate was employed by defendant, and while engaged in the duties of his employment a- piece of rock or slate fell from the roof of the mine, striking plaintiff’s intestate and killing him.

Heard before Hon. H. A. Pearce. Action by John L. Holloway and another against the Henderson Lumber Company for trespass’ to realty and the statutory penalty for cutting trees. Judgment for defendant, and plaintiffs appeal.

<p> Damages for Killing Property. </p> <p>1. Parties; Substitution; Receiver. — Where a receiver was appointed by the Federal Court to operate a railroad, and suit was brought against such receiver for injuries in its operation, and pending such suit the receiver sued resigned and the court appointed another receiver, it is proper to permit plaintiff to amend his complaint by striking out the name of the first receiver as a defendant, and inserting therein the name of his successor as such receiver.</p> <p>2. Railroads; Receiver; Personal Injury. — Where the railroad was in the hands of a receiver, and being operated by such receiver and his agents at the time of the injury of plaintiff, the railroad itself is not liable, as in such cases the law holds the receiver and his agent liable in his representative capacity, but does not hold the corporation liable since it has been deprived by the receivership of the right to control its property.</p> <p>3. Receivers; Successor; Liability; Injuries. — The successor of a receiver of a railway corporation is liable in an action brought against the first receiver in his representative capacity for injuries received by a plaintiff through the negligent operation of a railroad while in the control of the first receiver, as the proceedings were quasi in rem, binding the property or estate of the receiver in his representative capacity, rather than the receiver individually.</p>

<p>Appeal from Jackson Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Action by H. O. Bynum against the Southern Railway Company for injury to animals while in transit. Judgment for plaintiff, and defendant appeals.</p> <p>Transferred from the Court of Appeals under section 6, Acts of 1911, p. 449.</p> <p>The action was for damages for the death of one mule and injuries to another, and for injuries to certain cattle. The bill of lading contained the statement that the shipper has made application for a special low rate, lower than the regular tariff rate, and. in consideration thereof has offered to indemnify the railway against liability, and himself to assume certain duties in respect to such live stock, and the damages are limited as follows: Horses and mules each, $100, grown cattle, $30, and other enumerations not necessary to be here set out.</p> <p>The following charges Avere refused to defendant: “(3) If the jury find from the evidence that some of the cattle were either killed or injured in a manner that made defendant liable for damages, then defendant would not be liable for exceeding $30 damages for each head of cattle killed, and as damages for injuries.to each head which may have been injured an amount which would permit him to receive not exceeding $30 for each head injured.”</p> <p>“(11) The stipulation of $30 as a maximum of value of each cow shipped as contained in the contract of shipment is a valid stipulation, and such stipulation of value should control the jury in determining what, if any, amount plaintiff was entitled to recover for injury to any of said cattle.”</p> <p>The oral charge of the court was in substance that, notwithstanding the lower rate granted because of limitation of liability, yet if under the evidence the limitation was grossly inadequate to the market value of the stuff injured, then the jury might grant the shipper a larger remuneration than that fixed by the contract of shipment.</p>

Heard before Hou. D. W. Speaks. Action by Mrs. E. M. Hayes against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. The pleadings and the facts sufficiently appear from the opinion.

Heard before Hon. C. B. Smith. Action by Mrs. Ruth Mobley against the Seaboard Air Line 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. 119, § 6, to the Supreme Court. The facts sufficiently appear.

<p> Injury to Servant. </p> <p>1. Master and Servant; Injury; Direction to Servant. — Under the evidence in this case it was for the jury to determine whether defendant’s bank boss caused and ordered plaintiff to go to the room where he was injured.</p> <p>2. Same. — Where the count in the complaint charged that defendant’s bank boss ordered plaintiff to work in a certain room, and the proof showed that the order, if given, was not to go there to work, but to go there to inspect the place, the variance was immaterial, as the employer’s liability for injuries received there would be the same whether plaintiff was ordered to the room to work or to inspect it.</p> <p>3. Appeal and Error; Variance; Objection Below. — Under rule 34, Circuit Court Practice, the trial court will not be put in error for refusing the affirmative charge because of a variance unless it appears from the record that the variance was brought to the attention of the trial court by a proper objection to the evidence.</p> <p>. 4. Master and Servant; Injury to Servant; Liability. — Where a miner was due to remain in the mine after he had finished his daily task until a time beyond the time when he was injured, and went to another part of the mine where he was injured, upon the order or with the consent of his superiors, he was still an employee entitled to the protection of the law governing the relationship and answerable for the duties imposed upon him.</p> <p>5. Same. — In such case where the miner went to another ■ room than where he worked without the order or consent of his superior, the employer was not liable whether plaintiff was an employee or licensee, and although the accident occurred before the working day was over and before plaintiff had left or made preparation to leave the mine.</p> <p>6. Same; Variance; Pleading and Proof. — lYhere the liability of an employer under the evidence was rested upon the negligence of a bank boss in ordering or causing the miner, an employee, to go to the room where he was injured, defendant was entitled to the affirmative charge as to a count of the complaint charging that plaintiff while in the mine of defendant was injured, etc., an averment which, whether referring to the status of plaintiff as a licensee when he entered the mine, or to his status as a licensee at the time of the injury, was entirely unsupported by the evidence.</p>

<p> Destroying Lien. </p> <p>1. Evidence; Crop Mortgages; Deeds to Land. — Where the action was for the destruction of a lien on cotton claimed by plaintiff under a mortgage executed by W., and by defendant as purchaser from W.’s wife, mortgages on another crop of cotton raised on the land and executed by W., and deeds conveying the land to W., and from him to his wife, were admissible in evidence as material to show who owned the cotton in suit.</p> <p>2. Same. — Under such circumstances, evidence that W. had cultivated the land on which he and his wife lived, that the cotton was grown, that the children of W. hauled it to the gin and warehouse, tbat receipts were given, in tbe name of W., and tbat while it was in their possession, the children spoke of the cotton as the cotton of W., was material as showing ownership of the cotton.</p> <p>3. Same; Declarations. — In such a ease, where it was conceded that the children of W., the husband, handled the cotton, ginning it and having it warehoused, either as the agent of the father or the mother, the declaration of such children, while the cotton was in their control or custody, as to the character of their possession, was admissible under the rule that declarations of one in possession of property explanatory of the possession, made in good faith, and showing the character and extent of his claim to it, whether in his own exclusive right, or as a tenant of another, or the capacity in which he claimed, as partner, trustee or agent, are admissible in evidence on an issue of disputed ownership, whoever may be the parties to the litigation.</p> <p>4. Charge of Court; Ignoring Evidence— Charges which wholly ignore the theory of the case, which the evidence tends to establish, are refused without error.</p>

Heard before Hon. Charles W. Ferguson. Action by H. Ward against the Alabama Fuel & Iron 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.449).

- Heard before Hon. Thomas W. Wert. Action by Eldridge Fletcher against the Louisville & Nashville Railroad for damage for loss of baggage. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. C. B. Gwin. Action by B. Bailey against the United States Cast Iron Pipe & Foundry Company, upon an agreement to pay a sum certain for personal injury during disability. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911 (Acts 1911, p. 450).

Heard before Hon. John H. Disqite. Action by Ira Perkins, as administratrix of the estate of William Perkins, deceased, against Charles Galloway. Judgment for defendant, and plaintiff appeals.

Heard before Hon. John H. Miller. Action by Irene Briggs as administratrix against the Birmingham Railway, Light & Power Company for damages for the death of her intestate. Judgment for defendant, and plaintiff appeals.

Heard before Hon. John H. Miller. Action by Nettie Patterson, as administratrix, against the Alabama Fuel & Iron Company, for damages for the death of her intestate. Judgment for defendant, and plaintiff appeals. Plaintiff’s intestate was an employee of one Richardson, who had contracted with defendant company to drive a certain heading and an air course in defendant’s mine.

Heard before Hon. J. C. B. Gwin. Action by Jim Spencer, by next friend, against the Woodward Iron Company for damages for injury while in their employment. Judgment for plaintiff, and defendant appeals.

Heard before Hon. John H. Disque. Action by E. J. Clifton as administrator against the Standard Steel Company, for damages for the death of his intestate while employed in defendant’s mine. Judgment for plaintiff, and defendant appeals.

Heard, before Hon. James E. Blackwood. Action by H. T. Wilson, administrator, against the Gulf States Steel Company. Judgment for defendant, and plaintiff appeals. •The allegations of counts 1, 2, 3, and 4, and counts 5 and 14, sufficiently appear from the opinion.

Heard before Hon. D. W. Speaks, Action by Newt. Butner against the Huntsville Knitting Mills Company for damages for injury sustained by Ms minor son while in the employment of defendant. Judgment for plaintiff, and defendant appeals.

Heard before Hon. W. W. Pearson. Action by W. D. Woods against the Montgomery Light & Traction Company for damages for killing a calf. 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 W. H. Frazier against the Louisville & Nashville Railroad Company, for damages caused by fire. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts of 1911.

Heard before Hon. J. C. B. Gwin. Action by W. A. Jones against the Louisville & Nashville Railroad Company for damages for injury suffered while a passenger. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Act 1911, p. 449. The facts and pleadings sufficiently appear from the opinion.

Heard before Hon. John H. Disque. Action by Mrs. Dora Crosby against the Nashville, Chattanooga & St. Louis Railway. Judgment for plaintiff, and defendant appeals. For former appeal in this case, see 183 Ala. 237, 62 South. 889, where the facts and the pleadings are sufficiently set out for a proper understanding of this opinion. There was judgment for plaintiff in the sum of $7,500.

Heard before Hon. J. E. Blackwood. Action by H. E. Stewart against E. J. Bryan. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts 1911.

Heard before Hon. Bernard Harwood. Action by O. M. Walker, as administratrix of the estate of J. P. Stallings, against tbe Alabama, Tennessee & Northern Railway. Judgment for defendant, and plaintiff appeals.

Action by A. L. Blankenship against the Southern Railway Company. Judgment for plaintiff, and on appeal to the Court of Appeals the judgment was affirmed, and defendant brings certiorari to review such judgment.

Heard before Hon. A. H. Benners. Bill by Letty Jenkins and others, against the Woodward Iron Company to have the title and interest of complainants declared as against the claims of respondent. Decree for respondents and complainants appeal.

Heard before Hon. James E. Horton, Jr. Bill by John C. Hill against W. W. Cameron and others, to enjoin and restrain them from putting into effect quarantine for the purpose of carrying on the work of tick eradication. From a decree dissolving the temporary injunction, complainant appeals.

Heard before Hon. W. W. Whiteside. Suit by Margaret Wooddy against K. N. Matthews for an accounting, and to declare a trust in certain lands, and to require a conveyance thereof to complainant. From a decree for respondent, complainant appeals.

Heard before Hon. W. R. Chapman. Bill by J. S. Carroll against the Winter-Loeb Grocery Company to enjoin a suit in ejectment, and decree rights in certain land. Decree for complainant, and respondent appeals.

Heard before Hon. Gaston Gunter. Bill by J. E. Whittle against the Southern Express Company to compel it to receive and transport from Pensacola, Florida, to Earner, Alabama, a shipment of intoxicating liquors. From a decree granting a mandatory injunction, respondent appeals.

Heard before Hon. J. J. Curtis. Bill by Richard Long against George W. Powell to cancel a mortgage on the ground of want or failure of consideration. Prom a decree for respondent complainant appeals.

Heard before Hon. W. W. Whiteside. Bill by R. F. East against I. D. Nolen to declare a deed a mortgage, and for an accounting and cancellation. Decree for complainant and respondent appeals.

Heard before Hon. John H. Disque. Bill by J. M. Elliott, Jr., revived in the name of his executrix, against the Hudson Trust Company, to enjoin execution, and to require the making of the money on the jdugment out of the property of the maker of the note. From a decree declining to dissolve the temporary injunction, respondent appeals.

Heard before Hon. James H. Ballentine. James Clark and an other filed their hill for partition of certain lands, and under a sale for partition, Ohassie A. Cloud became the purchaser. Á writ of assistance was issued to Cloud as against A. J- Cooper and others, and they filed their petition seeking to have the writ of assistance quashed, and praying, for a writ of restitution. Both petitions were denied and they appeal.

Heard before Hon. W. H. Simpson. Bill by Joe S. Prince against J. G. Prince and others to enforce an adoptive contract or agreement made between the mother of complainant and one William T. Prince and wife. Decree for complainant, and respondents appeal. For another branch of this case, see Prince u. Primee, et ail., 188 Ala. 559, 66 South. 27.

Heard before Hon. W. H. Simpson. Bill by J. T. Sharp against C. E. Blanton and others, to redeem from mortgage foreclosure sale. Decree for respondents and complainant appeals.

Heard before Hon. A. H. Benners. Bill by Rose Johns Cannon against the Birmingham Trust & Savings Company, and others, to cancel a trust agreement. From a decree sustaining demurrers to her bill, complainant appeals.

Heard before Hon. C. B. Smith. Bill by Maggie Miller and another against the First National Bank of Birmingham and another to require the payment into court of certain money, and to enjoin its payment to one Williams, or the personal representative of Jennie Forrest, as well as to enjoin said parties from collecting said money. From a decree dismissing the bill, complainants appeal.

Heard before Hon. T. L. Sowell. Bill by the Consumers Coal & Fuel Company against H. F. Yarbrough, to restrain the foreclosure of a mortgage, and for cancellation or reformation of a contract to purchase a mining lease. From a decree dissolving the temporary injunction issued thereon, complainant appeals.

Heard- before Hon. Edward J. Gilder. Bill by Decimas Lucas as administratrix of tbe estate of Smith Lucas, against Milly Boykin Skinner, and otkers, heirs of W. H. Skinner, for an accounting and to redeem from an unforeclosed mortgage. From a decree dismissing the bill, complainant appeals.

Heard before Hou. W. R. Chapman. Bill by H. L. Seay and others against Rebecca N. Huggins and others to declare' a certain deed a cloud upon title, and to cancel and annul the same. Decree for respondents, and complainants appeal.

Heard before Hon. A. H. Benners. Bill by Ida Clark against W. A. Thompson and another to. cancel a certain mortgage because executed as surety for the debt of her husband. From a decree dismissing the bill, complainant appeals.

Heard before Hon. A. H. Benners. Bill by the Ely-Robertson-Barlow Drug Company against the Averyt Drug Company and others, to foreclose a lien, and seeking discovery. From a decree overruling demurrers to the bill respondents appeal.

Heard before Hon. W. W. Pearson. Bill by Mary A. Chapman and another against C. W. Chapman, for specific performance of a contract to convey. Decree for complainants, and respondent appeals.

Heard before Hon. W. R. Chapman. Bill by H. L. Martin against Lillian V. Harper for partition of land. Decree for complainant, and respondent appeals. The bill describes by government subdivision 360 acres of land, alleges orator to own an undivided one-sixth interest and respondent to own an undivided five-sixths interest, and that the land cannot be equitably divided or partitioned, and hence the sale ivas necessary; the facts being set ont showing why this is true.

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by James F. Sulzby against Mary Palmer to foreclose a Mortgage. Decree for respondent, and complainant appeals.</p>

Heard before Hon. H. A. Sharpe. Bill by the He Sota Coal Mining & Development Company against Jim Hill and another, to enjoin the collection of a judgment, and for general relief. Decree for respondents, and complainant appeals. For former appeal see De Sota* Goal Moving & Development Company v. Sill, 188 Ala. 669, 65 South. 988, where it was held that the bill was not sufficient against demurrer to invoke the jurisdiction of equity.

Heard before Hon. E. C. Crow. Action by G. W. Densmore and others, against D. J. Davis, in forcible entry and detainer. Judgment for plaintiff, and defendant appeals.

The State of Alabama proposed to assess the property of the Tallassee. Falls Manufacturing Company, situated west of the thread of the Tallapoosa River in Elmore county, and from a judgment so fixing it, the Tallassee Falls Manufacturing Company appeals to the Court of Appeals, where the judgment of the nisi prius court was reversed and remanded. See 13 Ala. App. 623„ 68 South. 805. The State now brings certiorari to review and revise the judgment of the Court of Appeals.

The City of Tuscaloosa sought an assessment of special benefit for street improvement against the property of Mrs. Alonzo- Hill, and from an adverse judgment appeals to the Court of Appeals, where the judgment was reversed. See City of Tuscaloosa, v. Evil, 14 Ala. App., 69 South. 486. Mrs. Hill now brings certiorari to review the judgment of the Court of Appeals.

Original petition in Supreme Court. Petition by Angie Johnson for mandamus to the Honorable James E. Horton, Jr., Special Chancellor, to require him to strike from the docket a certain cause therein pending against petitioner.

The City of Huntsville appealed from a judgment rendered against it at the suit of Otto Gudenrath, and the Court of Appeals reversed and remanded the cause, which is reported as City of Huntsville v. Qoodenrwbh, in 13 Ala. App. 579, 68 South. 676. Gudenrath brings certiorari to review and revise the judgment and decision of the Court of Appeals.

Heard before Hon. C. P. McIntyre. Petition by the State on the relation of W. B. Bras-sell for mandamus requiring C. B. Teasley as probate judge of Montgomery county to receive and file the statement and petition of Walter B. Brassell to have his name placed on the ballot for city commissioner of the city of Montgomery. From an order denying the writ and declining to award the rule, petitioner appeals.

Heard before Hon. Bernard Harwood. E. E. Abernathy had judgment against D. D. Wright and others and had execution on said judgment levied upon property as the property of said defendants in execution, and C. E. Mitchell interposed a claim thereto. From a judgment for the execution plaintiff, claimant appeals. Transferred from Court of Appeals under act creating said court.

<p>Appeal from Lawrence Circuit Court.</p> <p>Heard before Hon. D. W. Speake.</p> <p>Ejectment by S. Roman, as trustee, against H. C. Lentz and others. Judgment for defendants, and plaintiff appeals.</p>

Heard before Hon. M. N. Manning. Prom a decree of the probate court granting letters of administration to Viola Herd on the estate of John P. Herd, deceased, Sadie Herd appeals.

Heard, before Hon. Robert C. Brickell. Detinue by Fletcher Barksdale against Mrs. Ida Bullington for a mule, together with the use and hire thereof. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911 (Laws 1911, p. 449). The plea was non detinet. The description of the mule contained in the complaint was one black mare mule named 'Mat, about eight years old in 1914.

Heard before Hon. John J. Disqtje. Detinue by F. E. McCarver and others against T. F. Griffin, for possession of a colt. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals, under Acts 1911, p. 449, § 6. The eighth plea sets up that plaintiffs claim title by virtue of a mortgage executel by W. R. Goss and wife, to plaintiff, which mortgage plaintiffs allege was a lien upon the mother of the colt at the time of the birth of the colt.

Heard before Hon. D. W. Speake. Action by Brown & Hagin Company against R. N. McCullough in detinue, trover and trespass. Plaintiff appealed from a judgment of non-suit. Transferred from Court of Appeals under act creating said court.

Heard before Hon. S. L. Brewer. Detinue by G. F. Webster against J. W. and R. D. Aiken, for a mule, in wbicb Arthur Aikin ivas named as claimant,- with T. M. Slaughter and others as sureties upon the claim bond. There was judgment by default for plaintiff, and the bond being returned forfeited, the bondsmen appeal. Transferred from Court of Appeals under act creating said court.

Crenshaw Circuit Court. Heard before Hon. A. E. Gamble. Claim suit between E. Perry Thomas, as execution plaintiff, and W. H. and J. T. Brantley, as surviving partners. Judgment for plaintiff, and claimants appeal. Transferred from Court of Appeals under section 6, p. 449, Acts of 1911.

<p>Appeal from Fayette Circuit Court.</p> <p>Heard before Hon. Bernard Harwood.</p> <p>Ejectment by Earl M. Perkinson and others, against W. M. Gibson. Judgment for defendant and plaintiffs appeal.</p>

<p> Ejectment. </p> <p>1. Adverse Possession; Holders; Rights. — Where defendants after the death of their ancestor, who. was in possession, held the land adversely under a bona fide claim of inheritance for the period of limitation, they acquired the fee, notwithstanding the fact that their ancestors had only a life estate.</p> <p>2. 'Same; Running of Statute; Change. — A claim of ownership by adverse holders prior to the year 1908, is not affected by the new provision of section 2830, Code 1907, which went into effect in the year 1908.</p>

Heard before Hon. H. A. Si-iarpb. Action by William Bibby and others against John H. Adams and others. Judgment for plaintiff, and defendants appeal. Transferred from the Court of Appeals under section 6, p. 449, Acts 1911. The action is stated on the common counts, and on breach of a contract, which is set out.

Heard before Hon. J. J. Curtis. Assumpsit by J. O. Williams against A. A. Lowery and others. Judgment fox plaintiff, and defendants appeal. Transferred from Court of Appeals under act creating said court.

Heard before Hon. C. B. Smith. Assumpsit by E. S. Ferguson against the National Life Insurance Company of the United States of America. Judgment for plaintiff, and defendant appeals. Transferred from, the Court of Appeals under section 6, Acts 1911, p. 449.

<p>Appeal from Calhoun Circuit Court.</p> <p>Heard before Hon. Hugh D. Merrill.</p> <p>Assumpsit by Oma Diekert and another, against E. M. Sellers and another. Judgment for plaintiffs, and defendants appeal.</p>

Heard before Hon. Ed. T. Albritton. Assumpsit by J. A. Mason against J. B. Bullock. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1191, p. 449. • The action is on the common counts, founded on claims for compensation for cutting and hauling logs for defendant, and for merchandise and board furnished to defendant’s servant.

Birmingham City Court. Heard before Hon. John H. Miller. Assumpsit by J. H. Ryan against H. H. Black. Judgment for plaintiff. On denial of motion to set it aside, defendant appeals. Transferred from the Court of Appeals under section 6, p. 466, Acts of 1911. The complaint is on the common counts. Judgment by default was entered, and the jury assessed the damages at $210.

Heard before Hon. E. C. Crow. Assumpsit by the Fifth Avenue Library Society against J. T. Rhodes. Demurrer being sustained to the the complaint, plaintiff took a non suit with bill of exceptions, and appeals. Transferred from Court of Appeals under act creating said court.

Heard before Hon. Gaston Gunte'r. Assumpsit by the Commerce Trust Company against J. C. Haas. Judgment for plaintiff. Defendant appeals. The action is founded upon two promissory notes of $2,000 each, executed by one R. L. Haas, to one Simon Guggenheim, having been executed by the maker and delivered to payee at .Kansas.City, Mo. They had been previously indorsed at Montgomery, Ala., by J. C. Haas, the father of the maker, and by him forwarded to his son for execution.

Heard before Hon. J. E. Blackwood. Action by J. A. Gallant as administrator of the estate of William H. Lee, deceased, against the Eminent Household of Columbian Woodmen, upon a benevolent covenant or life policy. Judgment for plaintiff and defendant appeals.

<p>Appeal from Tallapoosa Circuit Court.</p> <p>Heard, before Hon. S. L. Brewer.</p> <p>Assumpsit by the Jefferson Fertilizer Company against the Dadeville Union Warehouse & Wholesale Grocery Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Mobile Circuit Court.</p> <p>Heard before Hon. Samuel B. Browne.</p> <p>Assumpsit by the City Bank & Trust Company against Dora D. Staples. From a judgment for plaintiff, defendant appeals.</p> <p>The action is on a promissory note, and the defense set up is that the note was given to plaintiff bank as a security for the debt of defendant’s husband (now deceased) in violation of the statute. The note is for $2,500, and is indorsed on its back by N. A. Staples, husband of defendant. It was given in renewal of a previous note for the same sum and between the same parties. When the first note for $2,500 was given, plaintiff held a note for $2,100 signed by defendant. Plaintiff then drew its check for $2,500 in favor of defendant, and this check was returned by some one (not the defendant) with her indorsement, and a few days later her previous note to plaintiff for $2,100 was marked paid and surrendered. This $2,100 note was itself a renewal note, and the first of a series of $2,000 by which-defendant first became indebted to plaintiff bank, originated in negotiations betAveen defendant’s husband and plaintiff, following which he produced and delivered the note for discount, and the amount was credited to an account then opened by plaintiff Avith defendant, and on the same day, January 6, 1911, her husband presented and cashed her check, payable to his order, for $2,000. ■</p> <p>Defendant’s evidence tended to show that she never had any knowledge of these transactions, and that she never received any money therefrom; but she admits that she signed such papers as her husband brought to her at home and requested her to sign, which included the several notes and checks. It appears without dispute that, when she signed the original note for $2,000, her husband was then indebted to plaintiff bank by tAVo promissory notes aggregating $2,000; and the president of the plaintiff bank testified that at some later time (which he could not fix) some one paid off said husband’s note. The trial judge excluded numerous items of evidence offered by defendant Avhich are sufficiently referred to in the opinion. The general affirmative charge was given for plaintiff, and there was verdict and judgment accordingly for $2,890. The following charge requested in writing was refused to defendant: The court charges the jury that, while the wife may borrow money on her own account and loan or give it to her husband, yet, if the money is borrowed by the wife from the husband’s creditors, and it is the intention of the contracting parties at the time that this money is to be used to pay his debts, and it is, in fact, so used, such transaction was in violation of our statute, and the wife’s note given for money so loaned cannot be enforced</p>

<p>Appeal from Limestone Chancery Court.</p> <p>Heard before Hon. James E. Horton, Jr.</p>