Volume 195 — Alabama Reports

<p>Ejectment.</p> <p>1. Public Lands; Patents; Presumption; Adverse Possession. — Presumptions are indulged only to supply facts, and are not available against established facts; hence, the presumption that arises from twenty years occupancy of land after an adverse claimant or his predecessors in interest were entitled to a patent, that a patent had been issued, is not available, where it conclusively appears that title was in the government during such period of occupancy.</p> <p>2. Adverse Possession; Prescription; Public Lands. — Prescription does not run against the government or against one who claims the land through government grants.</p> <p>3. Appeal and Error; Harmless Error; Instructions. — Where the defendant was entitled to and the court properly gave the affirmative charge for defendant, any error in giving or refusing special instructions was not prejudicial.</p>

<p>Ejectment.</p> <p>1. Vendor and Purchaser; Bona Fide Purchaser; Notice; Quit Claim Deed. —Although passing title as between the parties to the quit claim deed, such deed was void as against purchasers for a valuable consideration without notice, where the deed was not recorded as required by § 3383, Code 1907.</p> <p>2. Same. — The object of the statute (§ 3383, Code 1907) being to give notice, actual notice of an unrecorded quit claim deed is equivalent to the constructive notice afforded by the registration of the deed.</p> <p>3. Same; Possession. — Where one is in possession of premises, a purchaser thereof from another is charged with an implied notice of the nature of the title of the possessor.</p> <p>4. Notice; Facts Putting on Inquiry. — Whatever is sufficient to put one on inquiry is sufficient to charge him with notice of everything to which the inquiry would lead. '</p> <p>5. Deeds; Proof; Preliminary. — To authorize secondary evidence of a quit claim deed claimed to be lost, the preliminary proof of the loss is sufficient if it satisfies the court of the fact of loss with reasonable certainty, although it may be circumstantial; the degree of proof may vary with the importance and value' of the instrument, and the surrounding circumstances.</p> <p>6. Judgment; Gonclusiveness. — A judgment in assumpsit can never be a bar to an ejectment suit.</p> <p>7. Appeal and Error; Review; Question of Fact. — The questions as to whether an unrecorded quit claim deed was executed in fact, and whether a subsequent purchaser had actual notice of the deed, were for the jury, under the evidence in this case, and their finding will not be reviewed on appeal.</p>

<p>Appeal from Geneva Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Ejectment by D. L. Watson against J. B. Clark. Judgment for plaintiff, and defendant appeals.</p>

Appeal'from Clay Circuit Court. Heard before Hon. Hugh D..Merrill. Ejectment by H. T. Bachus and others, pro’ami, against Javan J. Smith. Judgment for plaintiffs, and defendant appeals.

Heard before Hon. C. P. Almon. Ejectment by T. L. Shotts against J. R. Phillips. Judgment for plaintiff, and defendant appeals. Testifying as a witness, J. R. Phillips said that the deed was executed by Cummins and wife to him in February, 1899, and the deed was given to him by John Cummins, that Cummins was in possession of the land when he gave the deed, and that witness went in possession after he got the deed.

<p>Ejectment.</p> <p>1. Adverse Possession; Defense. — In ejectment plaintiffs cannot recover as against defendants who had held the continuous, open, exclusive and adverse possession under claim of ownership of land for twenty-one years next before the bringing of the action, and under color of title, though not from plaintiffs.</p> <p>2. Wills; Construction; Life Estate. — Where the will gave testator’s wife whatever real estate he might die seized and possessed of in Shelby county, and directed that the executor should convey the land in Shelby county to trustees for the use of his wife and certain children during her life, with remainder to the children, there was no devise of the land to the wife with remainder to the children.</p> <p>3. Trusts; Jurisdiction; Law Court. — A court of law cannot deal with an unexecuted trust otherwise than to adjudge damages for certain breaches thereof.</p> <p>4. Limitation of Action; Trusts; Lapse of Time. — As between trustees and the cestiu que trust in case of an express trust, lapsed time does not bar the trust estate.</p> <p>5. Adverse Possession; Against Trustee; Effect as to Cestui Que.— Where the trustee and the cestui que trust are both out of possession of land for the time limit fixed by the statute, a third party or a stranger in possession acquires a good title as against both of them.</p> <p>6. Remainders; Adverse Possesion; Trustee. — If the statute of limitation did not run against cestui que trusts having an estate in remainder, or an estate after the estate of their mother was terminated because they had no right to enter lands in the possession of a stranger when the legal title was in their trustee, they had the right at any time to require the trustee to enter, or to bring an action to recover the estate for them, and if they failed to exercise their remedy they would be barred by the statute.</p>

<p>Ejectment.</p> <p>1. Ejectment; Pleading; Boundary Line. — Under § 3843, Code 1907, a defendant in ejectment may interpose a plea of disclaimer and suggest to the court that the suit arose over a disputed boundary line.</p> <p>2. Pleading; Amendment; Additional Pleas. — The case is not in progress after verdict, and, after verdict rendered, it is proper to refuse to permit a defendant in ejectment to file a plea of not guilty, notwithstanding a party has the right to amend his pleadings during the progress of the case, and without cost or delay, unless injustice will be done the opposite party.</p> <p>3. Ejectment; Pleading; Amendment. — Under § 5367, Code 1907, a plaintiff in ejectment may be allowed to amend his complaint so a.s to more specifically describe the lands in suit.</p> <p>4. Easement; Private Ways. — Where land was originally a private alley the rights of adjoining landowners therein can be alienated or lost by an adverse holding for the statutory period, with knowledge of such claim of the party whose rights are affected.</p> <p>5. Ejectment; Actions; Issue. — Where defendant disclaimed and filed_ a suggestion of a disputed boundary line under § 3843, Code 1907, and plaintiff contested the same, the only issue was the location of the boundary line and the affirmance by plaintiff of defendant’s possession; hence, charges as to the manner of establishing a boundary line and of loss of right in a private alley separating the premises were without the issues, and therefore erroneous.</p>

Heard before Hon. J. P. Stiles. Proceedings in the estate of Henry W. Eggler on the claim of L. A. Pulton, contested by the Ouehita National Bank. From a judgment sustaining demurrers to the contest and dismissing it, the Bank appeals.

Heard before Hon. A. E. Gamble. Escheat proceedings by N. G. McKenzie, administrator of the estate of Jorgan Jensen, deceased, opposed by Christian V. T. Jensen. The probate court dismissed the proceedings, the circuit court dismissed the administrator’s appeal from that judgment, and the administrator appeals.

<p>Probate Proceedings.</p> <p>1. Payment; Receipt; Explanation or Contradiction. — A receipt acknowledging that the signer had received from the administrator of her - son’s estate her entire one-half interest therein, for which a decree had been entered against the administrator by the probate court, was open to explanation or contradiction.</p> <p>2. Same. — Where an administrator moves to satisfy a decree which had been rendered against him, and relies on a receipt acknowledging payment of the decree, the burden was on the person giving the receipt to prove nonpayment.</p> <p>3. Accord and Satisfaction,; Receipt; Future Support. — Where it appeared that the receipt did not bear witness of a payment made, and that its consideration was a promise of future support, a motion to satisfy a judgment in accordance with the receipt, was properly denied, allowance being for support actually received from movant.</p>

<p>Appeal from Shelby Probate Court.</p> <p>Heard before Hon. A. P. Longshore.</p> <p>Final'settlement by Henry Milner as guardian of Oscar McGowan, in which motion was made to charge the guardian with certain items of receipts, and in which objections were made to certain credits claimed by the guardian. From a decree for the guardian the ward appeals.</p>

Heard before Hon. J. E. Blackwood. Action by J. T. Foster against Denton Bros, to recover the penalty for failure to satisfy the record of a mortgage. Judgment for plaintiff, and defendants appeal. Transferred from the Court of Appeals under section 6, p. 449, Acts of 1911. The pleadings and the facts sufficiently appear from the opinion.

Clair Circuit Court. Heard before Hon. J. E. BLACKWOOD. Action by D. A. Aderholt against Stockburger Bros, and the members composing the firm for trespass to realty and the statutory penalty for cutting trees. Judgment for plaintiff, and defendants appeal. Transferred from the Court of Appeals under section 6, p. 449, Acts of 1911. Count 1 was for money had and received. Count 2 was for trespass upon the lands therein described.

<p>Certiorari to Court of Appeals.</p> <p>Petition by the city of Birmingham for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of City of Birmingham v. O’Connell, 18 Ala. App. 570, 68 South. 586.</p>

<p>Appeal from Lamar Circuit Court.</p> <p>Heard before Hon. Bernard Harwood.</p> <p>E. E. Abernathy had judgment against W. J. Wright, and had execution thereon levied on certain crops as the property of said Wright, whereupon L. D. Littleton interposed a claim to the property under and by virtue of title conveyed by a chattel mortgage. From a judgment for the execution creditor, claimant appeals.</p> <p>Transferred from the Court of Appeals under act creating same.</p>

Original petition in the Supreme Court. M. Peters having been disbarred by a judgment of the circuit court, which judgment was affirmed on appeal to the Supreme Court, now files original petition in the Supreme Court for reinstatement.

Heard before Hon. W. G. McCorvey. Morvell Ryan sought a mandatory injunction against W. B. Sawyer and others as trustees of the school district, to require them to permit his children to remain in the school without the payment of an incidental fee for heating purposes. From a judgment sustaining demurrers to the petition he appeals.

<p>Detinue.</p> <p>1. Detinue; Title; Right to Possession; Burden. — In the action of detinue the burden is on plaintiff to show a legal title to the property and a right of immediate possession.</p> <p>2. Sales; Order and Acceptance; Completion. — Where the selection of the particular motorcycle was left to the buyer, an order for a motorcycle and an acceptance thereof did not constitute a completed sale.</p> <p>3. Same; Transfer of Title. — Where the seller took a bill of lading consigned to itself and attached same with endorsement thereon to its draft on the buyer, payable to the bank to which it delivered the same, there was no delivery to the buyer of the machine, such as was needed to complete the sale and vest title in the buyer.</p> <p>4. Detinue; Issuance; Title. — Where.it appeared, in an action brought by the buyer to recover a motorcycle, that though the machine had been shipped consigned to the seller, the sale was executory, and title had never passed to the buyer, the buyer was not entitled to recover, regardless of whether there had been any breach of contract by the seller; the only question involved in detinue being the question of title and right to immediate possession.</p>

<p>Certiorari to Court of Appeals.</p> <p>Jerome S. Brown was convicted of violating an ordinance, of the city of Birmingham, and on appeal to the criminal court of Jefferson county, the prosecution was quashed, and the city appealed to the Court of Appeals, where the judgment was affirmed (13 Ala. App., 69 South. 263), and the city brings this appeal to review and revise the judgment of the Court of Appeals.</p> <p>The petitioner, the city of Birmingham, contends that its own ordinance fixing a limitation of 12 months on prosecutions such as this is not in violation of or in conflict with any laws of the state, and must govern this case. The Court of Appeals, one judge dissenting, held that a prosecution for violating a city ordinance was subject to the limitation of 60 days as prescribed by section 7348, Code 1907, governing prosecutions before the justice of the peace. ■</p>

<p>Mandamus.</p> <p>1. Appeal and Error; Stay of Proceedings; Supersedeas. — Under §§ 2873-4-5, Code 1907, an appeal from a decree cancelling a mortgage and taxing the costs of the suit against the mortgagee, but requiring the performance of no other act by the mortgagee, operated as a stay of execution for costs, without supersedeas bond, since such a decree was not a dcree for the payment of money under § 2873, and did not fall within the operations of the other sections mentioned; at common law an appeal operated as a stay of further proceedings.</p> <p>2. Costs; Nature and Ground. — Costs are a mere incident of a suit, and do not arise from any inherent power in the court to award them, but are granted only'by virtue of express statutory authority.</p>

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. J. C. B. GwiN.</p> <p>Petition by T. T. Huey and others for mandamus to the Board of Revenue of Jefferson county, and the individual members thereof, requiring them to provide quarters for branch offices for certain county officers in Jefferson county. From a decree granting the writ, respondents appeal.</p>

<p>Appeal from Limestone Circuit Court.</p> <p>Heard before Hon. D. W. Speake.</p> <p>Detinue by Henry Warten against Owen Black. Plaintiff ,ving died, the action was revived by Leo M. Warten and others as executors. Judgment for defendant, and plaintiffs appeal</p> <p>The facts sufficiently appear from the opinion. The follow ing charges were given for defendant: (1) I charge you, gen tlemen of the jury, that where a debtor owes to a creditor : secured debt and an unsecured debt, he has the right under tb law to direct the application of payment made by him, or credi to which he is entitled, to the reduction of or satisfaction of th secured debt; and where such direction is so given by the debtor I charge you that the creditor has no right to apply payment o: credit otherwise than as directed.</p> <p>(4) If you believe from the evidence that defendant directe< Warten to apply the credit of $520 to the credit of his mortgag debt,, then I charge you that the said Warten was obliged t< apply such payment or credit as directed.</p>

<p>Appeal from Morgan Law and Equity Court.</p> <p>Heard before Hon. Thomas W. Wert.</p> <p>Action in detinue and trover by Lizzie Key against James E. Cain. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 669.</p> <p>The plaintiff is the widow of one Pat Key, and claims the mule sued for as such. The case was tried on the general issue and special plea 2, setting up a title derived by defendant in a purchase of the mule at a foreclosure sale under a mortgage given by said Thatch Key to one Poteet, also alleging that said Key was in possession of the mule, and held a title superior to plaintiff at the time he executed said mortgage. Defendant also filed special pleas 3 and 4, setting up a former adjudication of the title to the mule in favor of Cora Poteet, as administratrix of the said mortgagee, as against the plaintiff who sued said Poteet in detinue and trover; the issue tried being the superiority vel non of Poteet’s title under said mortgage. The court sustained demurrer to- each of these pleas; the grounds assigned being substantially that the judgment alleged was rendered in favor of Poteet after this defendant had acquired title from her, and did not show such privity between plaintiff and Poteet as that the judgment would bind plaintiff. Plea 4, by its adoption of all the averments of plea 2, shows that defendant acquired title by said purchase after plaintiff had sued said Poteet, but before a judgment had been rendered thereon.</p> <p>The evidence is in dispute as to whether plaintiff or her husband, said Thatch Key, owned the mule when he gave the Poteet mortgage. Plaintiff also claims title through a mortgage given by Thatch Key to one Gilchrist, prior to the Poteet mortgage, which she paid out of the proceeds of the crop for 1912, which belonged to Thatch Key, but which she and her children cultivated after his death in June or July, 1912. Her testimony was that, when she paid the money due to Gilchrist she requested him to transfer the mortgage to her. Gilchrist denies this, and says that she simply paid the debt, and he marked the mortgage “Paid by Lizzie Key,” and handed it to her. The Gilchrist mortgage was executed January 11, 1910, and filed for record March 14, 1910. The Poteet mortgage was given March 10, 1910, and filed for record March 15, 1910, and appears to have been executed for a valuable consideration. The other faqts sufficiently appear.</p>

<p>Mandamus.</p> <p>1. Statutes; Subject; Validity. — Acts 1915, p. 279, does not violate § 45, Constitution 1901, since each provision of the act is germane to the one general purpose of providing a circuit court in each county, and abolishing all others. ■ . . 1.1</p> <p>2. Same — Such statute does not violate § 45, Constitution 1901, by a failure to include the subject of the act in the title, as each provision of the statute was therein referred to.</p> <p>3. Constitutional Law; Instructions. — It is the duty of the court to uphold the acts of the legislature unless such acts plainly transgress the organic law, and courts will not seize upon garbled expressions or strained definitions for the purpose of striking down an act.</p> <p>4. Statute; Plurality of Subject. — Since §§ 148 and 171, Constitution 1901, must be construed in pari materia, and when so considered, Acts 1915, p. 279, must be held not invalid because it combines the consolidation and abolition provisions in one act.</p> <p>5. Same; General Law. — Acts 1915, p. 279, is a general law within the definition of § 110 of the Constitution, and is not made a local law by the fact that some counties had at the time of its enactment, no circuit court and others had only circuit courts, for although its operation is not uniform in that respect, the result is uniform in providing but one court for each county.</p> <p>6. Same. — Section 147, Constitution 1901, contemplates that counties detached from circuits shall, to all intents and purposes, constitute in themselves judicial circuits, irrespective of the name and character of the courts therein created; hence, the contention that the act in question is rendered local by the fact that Lee and Marengo counties possessed law and equity courts, and hence, are not parts of a judicial circuit, and the act cannot be operative as to them, is not sustained.</p> <p>7. Courts; Establishment; Nature. — Section 144, Constitution 1901, guarantees that each county shall have a circuit court or court of like jurisdiction, and leaves it to the discretion of the legislature what the court shall be.</p> <p>8. Same. — Under § 147, Constitution 1901, when a county is detached from á judicial circuit, it, ,in effect, becomes a circuit in itself.</p> <p>9. Statutes; Construction, — A statute must be construed as it stands, without conjecture, and the fact that a bill passed by the legislature, but vetoed by the governor, was intended to accomplish a given result, does not require a construction of another statute passed at the same session, in accordance with the vetoed measure.</p> <p>10. Courts; Establishment; Circuits. — Where two counties are at some distance from each other, and each qualified to constitute a separate judicial circuit, and they were removed from the circuit in which they had formerly been, it cannot be presumed that the legislature intended to group them in a single circuit.</p> <p>11. Statutes; Construction; Terms Used. — The fact that a statute operates to cause confusion in the practice of the court, does not warrant the court to construe it contrary to its terms; it must be construed as it stands.</p> <p>12. Constitutional Law; Construction; Presumption. — In construing a statute the courts resolve all reasonable doubt in favor of its constitutionality, regardless of results.</p> <p>(Sayre, J., dissents.)</p>

<p>Appeal from Mobile Law and Equity Court.</p> <p>Heard before Hon. Saffold Beeney.</p> <p>Petition by the State of Alabama, on the relation of Mobile Light & Railroad Company, for writ of mandamus directed to Hon. Price Williams, as Judge of Probate of Mobile county, directing him to issue a franchise license covering the year from January 1, 1916, to December 31st, both inclusive. From the decree granting the mandamus as prayed, respondent appeals.</p> <p>The petition alleges that prior to the approval of the act of September 14, 1915, petitioner had paid his franchise tax for the year 1915, as required by law, and that said license tax covered a period.from January 1, 1915, to December 31, inclusive. It is further alleged that prior to December 31st, 1915, the commissioners’ court of Mobile county at a regular meeting thereof levied a county franchise tax of 20 cents on every $1,000 of the capital stock of domestic corporations for county purposes. It is further alleged that petitioner has a capital stock of $2,225,-000, and on Friday, December 31, 1915, tendered to Price Williams, as such judge of probate, $1,013, and requested from him the issuance of a license covering the period from January 1, 1916, down to and including September 30, 1916, which tender the judge of probate refused to receive, and that petitioner thereupon tendered to said Price Williams the sum of $1,350.50, and requested him to issue a license from January 1, 1916, to September 30, 1916, both inclusive, which petitioner refused to receive, and refused to issue license. It is then alleged that petitioner tendered said last-mentioned sum to the said judge of probate as such judge, in payment of whatever franchise tax, state and county, which''“might be due and payable by your petitioner for the period including the 1st day of January, 1916, which said tender the said Price Williams, as such judge of pro-1 bate, accepted, and your petitioner then demanded the issuance of a state and county franchise license tax covering the year 1916, from the first to the last day thereof, inclusive,” but that said judge of probate declined to issue such license. The decree was that the judge of probate accept the sum of $1,013 in payment of the franchise tax down to and including September 30, 1916, and issue license accordingly.</p>

<p>Contest Stock Law Election.</p> <p>1. Appeal and Error; Record; Petition. — Where the probate court upon certiorari from the Supreme Court, certified as part of' the record omitted from the transcript, a copy of the petition calling for the stock law election, and which was a part of the proceedings in the cause, the petition will be considered as a part of the record on appeal from the contest of the stock law election.</p> <p>2. Animals; Stock Law Election; Validity. — Where an election is void there is nothing to contest; hence, on appeal from the rulings in the contest of the stock law election, the validity of the petition and order for election, and of the proceedings of the commissioners’ court are matters not properly presented on the contest.</p> <p>3. Same; Remedy. — In such case the remedy for the review of such question is by certiorari to quash the proceedings..</p> <p>4. Same; Presumption of Regularity. — Where the record affirmatively shows that the orders entered upon the minutes of the court in respect to the election contained all the necessary and jurisdictional averments, and their regularity is not questioned, the proceedings should not be quashed upon certiorari, since § 3312 gives the court of county commissioners original and unlimited jurisdiction in regard to stock law elections.</p>

Heard before Hon. B. M. Miller. . Condemnation proceedings by the Western Union Telegraph Company to condemn an easement for its line along the right of way of the Louisville & Nashville Railroad Company. From a judgment condemning the property and assessing the damages at one dollar, respondent appeals.

Heard before Hon. J. J. Curtis. M. J. Lowery sued the Illinois Central Railroad Company for damages for personal injuries, and recovered judgment therefor, which was reversed on appeal to this court. Pending another trial of the cause plaintiff settled with the railroad, and released them from further liability, but without the consent of his attorney. Plaintiff’s attorney sought to enforce their lien and moved to strike the pleas of release filed by defendant.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. Gaston Gunter.</p> <p>Action by Lowndes W. Adams against the Afro-American Life Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

Heard before Hon. H. A. Sharpe. Assumpsit by W. C. McCarty against Robert Green, with garnishment in aid thereof upon -the Louisville & Nashville Railroad Company. Judgment for plaintiff, and the garnishee appeals. The action was on a promissory note, with a writ of garnishment to the Louisville & Nashville Railroad Company in aid of the suit.

Heard before Hon. H. A. Sharpe. Action by the Crandall-Pettee Company against the Jebeles & Colias Confectionary Company. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under section 6, Act of April 18, 1911 (Laws 1911, p. 449). The first four counts were on the common counts.

Heard before Hon. H. A. Pearce. Assumpsit by Watson Bros, against L. E. Davis and another. Judgment for defendants, and plaintiff appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts of 1911. The basis for a new trial was that the verdict of the jury was contrary to the evidence, and that the court erred in giving the special charge requested by defendant. The evidence sufficiently appears.

Heard before Hon. Thomas W. Wert. Action by J. A. Bates and W. B. Bates against the Exchange Underwriters’ Agency of the Royal Exchange Assurance of London, England. Judgment for plaintiffs, and defendant appeals. The substance of the complaint sufficiently appears.

Heard before Hon. A. E. Gamble. Assumpsit by W. T. Ray against M. A. Conner and S. A. McCoy as partners. Judgment for plaintiff, and defendant Conner appeals. The action was on the common count and on a breach of contract. The pleas were the general issue and payment; Conner also filing a plea denying the existence of a partnership.

Heard before Hon. D. W. Speake. Assumpsit by the Merchants & Mechanics’ Savings Bank against S. L. Sherrill. Judgment.for plaintiff, and defendant appeals. Transferred from Court of Appeals under act creating said court.

Heard before Hon. S. L. Brewer. Assumpsit by the Union Springs Guano Company against Jesse L. Wheat. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear from the opinion.

Heard before Hon. B. M. Miller. Assumpsit by H. M. Hartón against A. N. Belcher. Judgment for defendant, and plaintiff appeals. The action was upon a promissory note for deferred, payments on certain land.

Heard before Hon. C. B. Smith. Action by Tallie Prayter against C. S. Northen and another. From a judgment granting new trial to defendant Studebaker Corporation of America, in said action, plaintiff appeals, with, petition for mandamus to set aside such judgment granting new trial and reinstate the former judgment.

Heard before Hon. W. W. Pearson. Assumpsit by the Clanton Bank against W. T. Robinson. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under act creating said court.

Heard before Hon. W. W. Pearson. Action by the county of Montgomery against the city of Montgomery to recover money paid to the city by the county as a portion of the road fund going to the city under a supposed statutory authority. From a judgment overruling its demurrer to defendant’s plea of non claim, plaintiff appeals.

Heard before Hon. Saffold Berney. Action by Edward M. Bailey against Dellie V. Padgett and another to recover compensation for effecting a sale of land. Judgment for defendant, and plaintiff appeals.

Heord before Hon. H. A. Pearce. Assumpsit by the White Sewing Machine Company against M. O. Forehand. Judgment for plaintiff, and defendant appeals. The action was brought upon a verified, itemized account, and the correctness of this account was denied under oath by defendant. To support its action plaintiff filed interrogatories to W. W. Chase and C. A. Nelson.

Heard before Hon. W. W. Haralson. Action by the W. P. Brown & Sons Lumber Company against J. B. Steele and G. S. Mussetter. From a judgment for defendant Steele, plaintiff appeals. G. S. Mussetter and J. B. Steele executed a joint promissory note to C. M. Hunter, which was transferred to the present appellant. After Mussetter, Steele was only a surety, which fact was known to payee.

Heard before Hon. John T. Lackland. Action by Marengo County against the city of Demopolis to recover money paid said city as part of the special road tax. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under act creating said court.

Heard before Hon. Saffold Berney. Assumpsit by L. B. Musgrove as surviving partner of the firm of L. B. & J. C. Musgrove, against the Gulf Coal & Coke Company, to recover dividends declared and withheld. Judgment for plaintiff, and defendant appeals.

Heard before Hon. S. L. Brewer. Assumpsit by Tyson & Arrington against W. W. Thompson. From judgment for defendant, plaintiffs appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. The facts sufficiently appear from the opinion. The following are the charges referred to in the opinion: (1) Affirmative charge to find for plaintiffs. (2) Under the testimony $500 is a reasonable fee for the services rendered.

Clair Circuit Court. Heard before Hon. James E. Blackwood. Assumpsit by James B. Drake against Martha M. Bruce to recover broker’s commission. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under act creating said court.

Heard before Hon. S. L. Brewer. Action by the Butler-Kyser Manufacturing Company against O. D. Mitchell & Co. From a judgment for defendants, plaintiff appeals. The complaint shows that plaintiff consigned to defendants for sale on commission 200 tons of fertilizer, to remain the property of plaintiff until sold in due course, and, when sold, the proceeds were to be thé property of plaintiff and fully accounted for to plaintiff as such.

Heard before Hon. J. W. Mabry. Action by M. M. Lehman and J. G. Wilkins, trading under the firm name and style of American Candy Manufacturing Company, against J. C. Austin and another. From a judgment for defendants, plaintiffs appeal. Transferred from Court of Appeals under section 6, Acts 1911, p. 450. The first nine counts were the usual action on the promissory notes, and declared on nine separate notes.

Heard before Hon. Saffold Berney. Action by Catherine G. Sage against the Barker Cotton Mills Company. There was judgment for defendant, which was set aside on plaintiff’s motion, and defendant appeals. The suit was upon a demand loan.

Heard before Hon. J. J. Curtis. Assumpsit by the Cranford Mercantile Company against Mrs. W. T. Wells and others. Judgment for defendants, and plaintiff appeals.

Heard before Hon. H. A. Pearce. Assumpsit by the Portsmouth Cotton Oil Refining Company against the Madrid Cotton Oil Company, for breach of contract to sell cotton seed oil. Judgment for defendant, and plaintiff appeals.

Heard before Hon. J. E. Blackwood. Action by Birdie M. Crenshaw against the Massachusetts Mutual Life Insurance Company for the face of a policy issued upon the life of John W. Crenshaw. Judgment for plaintiff, and defendant appeals. For former report of this case, see 186 Ala. 460, 65 South. 65, where the necessary pleas will be found set out.

<p>Assumpsit.</p> <p>1. Bills of Exceptions; Presentation; Signing. — The fact that the bill of exceptions was presented to the trial judge within 90 days from the date of the judgment is attested by the fact that the bill showed that it was signed by him within that period, notwithstanding it appears to have been filed as of a later date; the latter filing referring evidently to the filing in the office of the circuit clerk.</p> <p>2. Executors and Administrators; Claims Against; Presentation; Burden. —A plaintiff suing an executrix and joining issue on a plea of the statute of non claims assumes the burden of proving presentation of the claim within the time provided by § 2590, Code 1907, and in one of the ways provided by § 2593, Code 1907.</p> <p>3. Same; Verification. — Although under § 2593, Code 1907, presentation of the claim need not be to the executor personally, and by filing in the probate court, yet whether made in the one or the other way, such claim must be verified.</p> <p>4. Same; Presentation; Necessity. — To prevent the bar of the statute of non claim, actual, formal presentation - of the claim must be made by one having the right to make the presentation; mere knowledge by the executrix of its existence is not enough.</p> <p>5. Same; Presentation to Attorney — Presentation of a claim against decedent’s estate to the attorneys of the executrix is not a presentation to executrix as authorized by § 2593, Code 1907; and this is true although the attorneys present it to her, as they are not persons authorized to make the presentation.</p>

<p>Appeal from Walker Circuit Court.</p> <p>Heard before Hon. J. J. Curtis.</p> <p>Assumpsit by the American Trust & Savings Bank against Caine O’Rear. From a judgment for plaintiff, defendant appeals.</p> <p>The note was made by Caine O’Rear to one W. E. Thomas, and is alleged in the plea to have been given for 20 shares of the capital stock of the Standard Coal Company. The pleas further allege fraud, misrepresentation, and failure of consideration, going into details as to the fraud and misrepresentations complained of.</p>

Heard before Hon. H. A. Sharpe. Action by the Jefferson County Savings Bank as against J. C. Carland and others, service on defendant being perfected in Cullman county, Alabama, and they being nonresidents of the state. From a judgment sustaining defendants’ plea in abatement, plaintiff appeals.

Heard before Hon. D. W. Speake. Action by J. J. Ballard against the Stouts Mountain Coal & Coke Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, p. 440, Acts 1911.

<p>Killing Dog,</p> <p>1. Street Railroads; Operation; Killing Animal. — The standard being the conduct or omission as respects negligence of a reasonably prudent man, charges which predicate recovery upon the judgment and act of the individual operative of the street car, in an action for the killing of a dog, were properly refused.</p> <p>2. Same. — The negligent killing of a dog by a street car invests the owner of the dog with a right to be compensated therefor.</p> <p>S. Same. — It is the duty of the motorman operating a street car to keep diligent lookout for persons or property using the street.</p> <p>4. Same, — Where the action was for the negligent killing of a dog by a street car, a charge which confused the duty of the motorman to keep a diligent lookout and to employ the means at hand to avert injury was erroneous.</p> <p>5. Same. — Negligence of a motorman in failing to keep a lookout will impose liability upon the company if the injury is the proximate result thereof unless contributory negligence intervenes.</p> <p>6. Same. — An instruction which concludes to liability of the street car company for the killing of a dog without predicating that result upon the essential condition that the negligence was the proximate cause of the killing, is erroneous.</p> <p>7. Same. — Charges which impose the duty on the motorman of a moving street car to bring his car under control or slacken the speed upon merely seeing an animal approaching the track for the purpose of crossing it, which omit reference to the distance of the animal from the track or the probability of injury to the animal, are erroneous.</p> <p>8. Same. — Charges which fail to distinguish between the care required of the motorman upon discovering cattle near the track, and that required upon discovering a dog near the track, are erroneous as they should have considered the agility and celerity with which the dog could avoid the car.</p> <p>9. Same. — Liability for injury or death to dogs by a street car is not restricted to those cases where the injury was wantonly or willfully inflicted.</p>

<p>Injury to Servant.</p> <p>1. Master and Servant; Injury to Servant; Similar Accidents. — Where the action was for injury to a servant alleged to have been caused by a1 switch flying around as a car passed over it, evidence that about a month before the accident, a witness observed that the same switch flew around as an engine passed over it, was properly admitted.</p> <p>2. Same. — To allow proof of an occurrence similar to that claimed to have caused an injury, it must first be shown that conditions were substantially the same, but it is not necessary that there be direct proof of a similarity, and the occasions may be so near together in point of time as to afford a presumption that they were similar, or the similarity may be shown by the circumstances.</p> <p>3. Trial; Reception of Evidence; Preliminary Proof. — While evidence may be prima facie incompetent at the time of the admission because of the failure to prove some fact necessary to its competency yet such incompetency may be removed by evidence subsequently introduced.</p> <p>4. Master and Servant; Injury; Defective Appliance; Subsequent Use.— Where the action was for injuries alleged to have been caused by the defective. condition of a switch and the track at the switch, the exclusion of evi-„ dence as to the continued use of the switch and switch track subsequent to the accident, and that the switch had not been repaired, was not erroneous. where there was no evidence or offer to produce evidence to show that such use was not attended with other results than those consistent with a normal non-defective mechanism or agency, or that the switch afforded normal service during such use.</p> <p>(Mayfield, J., dissents in part.)</p>

Heard before Hon. W. W. Haralson. Action by H. M. Cash against the Nashville, Chattanooga & St. Louis Railway, for damages to an automobile in transit. Judgment for plaintiff, and defendant appeals. The action was the usual action for damages for goods in transit.

Heard before Hon. S. L. Brewer. Trover and conversion of the Union Warehouse Company against S. H. Pope & Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under act creating said court.

<p>Assault and Battery.</p> <p>Master and Servant; Tort of Servant; Scope of Employment; Jury Question. — In -this case it was a question for the jury whether the sheriff was acting for the company when he arrested plaintiff, in order to intimidate her and her husband into keeping their son .away from the mining company’s property; the action being by the woman against such mining company for an alleged assault committed upon her by a deputy sheriff in the course of his employment by the defendant company in keeping undesirables and trespassers off of defendant’s property.</p>

<p>Killing Animal.</p> <p>1. Street Railways; Killing Animal; Complaint. — A count alleging that the track was straight and the view unobstructed, and that defendant, its servants and agents, could have seen the peril of the cow by the exercise of due care and diligence, but wantonly ran the car upon the cow and killed it, to plaintiff’s damages, was not subject to demurrer that such count did not show any duty on the part of defendant to plaintiff not to be negligent, since the count was a general averment of fact causing the injury, and that the injury was the proximate result of defendant’s negligence.</p> <p>2. Pleading; Demurrer; Object.. — The office of a demurrer is to specifically point out the defects in pleading to which it is directed in order that the opposite party may have an opportunity to cure the defect by amendment.</p> <p>3. Same; Sufficiency. — Under § 5340, Code 1907, a demurrer may not be general.</p> <p>4. Same; Amendment; Conforming to Proof. — Where the complaint alleged the killing of a cow after its discovery on the track and plaintiff asked leave to amend by substituting for the quoted words the words, “after discovering it trying to cross the track,” after plainitff had rested, the allowance of such amendment was proper, as it introduced no new cause of action, no new element of proof, and was not a departure under § 5367, et seq., Code 1907; the defendant being entitled to a continuance upon request if it thought such an amendment prejudicial.</p> <p>5. Trial; Demurrer to Evidence. — Under the provisions of § 5343, Code 1907, a party invoking the aid of the court by a demurrer to the evidence to pass upon the sufficiency of his adversary’s evidence, withdraws his case from the consideration of the jury and substitutes the court as a judge of the fact.</p> <p>6. Same; Motion to Exclude Evidence. — While, if there is no evidence to support plaintiff’s case it would not be error for the court to exclude plaintiff’s evidence, yet the trial court cannot be compelled to pass upon the sufficiency of the evidence in this way, and its refusal to do so is not subject to review.</p> <p>7. Street Railways; Injury to Animal; Duty. — It is the duty of a street car motorman to keep a diligent outlook for persons or animals 'using the street, including the space occupied by the track, to run the car at reasonable speed, to sound the gong, and to decrease the speed and stop the car if necessary to avoid a collision.</p> <p>8. Same; Jury Question. — Where the action was for the death of a cow struck by a street car, whether the collision would have been avoided but for the negligent failure of the motorman to keep a diligent lookout for her, or proceed along the street át a reasonable speed, dependent upon circumstances, or whether, after discovering the dangerous proximity of the cow to the track, he sounded the alarm, or did all he reasonably could to stop the car and prevent the collision, were questions of fact for the jury.</p> <p>9. Appeal and Error; Cured by Verdict. — Where the verdict was less than the undisputed value of the cow, defendant was not prejudiced by the rulings of the court on the count alleging wanton or willful injury, as it is evident that the jury did not find for plaintiff under that' count.</p> <p>10. Same; Harmless Error; Evidence. — The admission in evidence of the statement by the motorman after the car had backed up to the point where the accident occurred, “I got her alright,” if error, was harmless, as it related to the undisputed fact that the cow was killed.</p>

Heard before Hon. Thomas W. Wert. Action by Newton Fitzpatrick against the Southern Railway Company for damages for the death of a cow. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals, under section 6, Act April 18, 1911 (Acts 1911, p. 449). The action was stated in four counts, and each declared for damages for killing a cow by running a train on, over, or against her.

Heard before Hon. Bernard Harwood. Action by A. J. Wright against J. R. Roach and another who was stricken from the case. Judgment for plaintiff, and defendant Roach appeals.

Heard before Hon. Samuel B. Browne. Action by Lizzie Maddox against Mobile County for injuries received because of a defective bridge. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under act creating said court.

<p>Injury to Servant.</p> <p>1. Master and Servant; Injury to Servant; Action; Pleading. — A plea setting up that defendant had, when it employed intestate, delegated to him the duty of providing a reasonably safe place for himself and its other employees in said mine to work in, and that said intestate negligently failed to exercise reasonable care to provide a safe place, and as a proximate consequence thereof, received his alleged injuries, was inapt, as it did not properly declare under the statute, but only under the common law.</p> <p>2. Same. — Such a plea was also bad for the reason that an employer cannot delegate to his employee the duty of providing himself with a safe place to work, that duty resting upon the master, although the master may delegate to the employee the duty of caring for such a place after it is provided.</p> <p>3. Same; Contributory Negligence. — A plea that said employer had entrusted to said intestate the duty of seeing that its ways, works, machinery and plant in and about said mine were in proper condition, and that the alleged defect had not been discovered or remedied as a proximate consequence of the negligence of the intestate who negligently failed in and about the performance of said duty, followed the language of the statute, and was good, and it was error to sustain a demurrer thereto when there was no other plea setting up the same defense.</p> <p>4. Death; Action; Negligence of Decedent; Recovery. — Where a servant could not maintain an action for injuries because of his own negligence, his personal representative could not maintain such action after his death.</p> <p>5. Master and Servant; Contributory Negligence; Assumption of Risk.— While § 3910, Code 1907, preserves the defense of contributory negligence, it transfers to the master the risk held under common law to be assumed by the servant, and a master cannot plead assumption by the servant of the risk of a fellow servant’s negligence.</p> <p>6. Same; Delegation of Duty. — Where the master entrusts an employee with the duty of seeing that the ways, works, etc., are in proper condition, and the employee breaches that duty by his own negligence, and as a result the employee is injured, such employee cannot recover for the injury.</p>

<p>Injury to Animal.</p> <p>1. Witnesses; Examination; Memoranda as Aid. — A witness cannot be permitted to aid his testimony by referring to a bill of lading or other written memoranda for facts which had never come within the scope of his own personal knowledge.</p> <p>2. Carriers; Live Stock; Evidence. — Where the action was for injuries to a shipment of animals, questions to a conductor as to whether any exceptions were noted on the bill of lading when the horses were turned over to him, were objectionable not only because the bill of lading was the best evidence, but also because if the question had been answered affirmatively, it would have been hearsay, and if negatively, would have shown nothing as to the condition of the horses on delivery or as to how they were injured.</p> <p>3. Evidence; Conclusion. — A witness should never be permitted to testify to his conclusion of fact or the reason for his conclusion.</p> <p>4. Appeal and Error; Harmless Error; Evidence.. — Where a witness was permitted to testify fully as to facts sought to be elicited by certain questions, objections to which were sustained, any error in sustaining such objections was rendered harmless.</p> <p>5. Carriers; Injury to Animals; Instructions. — Where the action was for injury to a shipment of animals, and the defense interposed was a stipulation in the bill of lading relieving the carrier from liability for injuries to the animals in consequence of any of the animals being vicious, wild, unruly or weak, and alleging that the injuries were due to such viciousness or weakness of some of the animals, and also alleging that the injuries were inflicted by other animals in the same car, a charge to find for defendant if the injury was caused by some of the animals being vicious or weak, and not by defendant’s negligence, was properly refused for a failure to hypothesize the element of defense that the injuries were inflicted by other animals in the car.</p> <p>6. Same.- — Charges asserting that there was no evidence showing that lack of bedding caused the injury, or evidence that the stock were not fed for twenty-eight hours after leaving the point of shipment, were properly refused where there was evidence authorizing inferences contrary to the assumption of the instruction.</p> <p>7. Charge of Court; Existence of Evidence- — While on written request, the court may instruct as to the effect of uncontradicted evidence, the court cannot be required to instruct whether there is evidence of any fact.</p>

<p>Appeal from Walker Circuit Court.</p> <p>Heard before Hon. J. J. Curtis.</p> <p>Action by Louis Bowen against the Empire Coal Company for damages for injuries received while in its employment. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.</p> <p>The facts as to the motion to dismiss sufficiently appear from the opinion. The following are the counts of the complaint; “(D) Plaintiff claims of defendant the sum of $10,000 as damages for that on, to wit, April 23, 1913, defendant was operating a coal mine at or near Empire, in Walker County, Ala. In connection with the operation of said coal mines, the defendant operated a special trip of empty cars over a tram track in said mines for the purpose of transporting the workmen in and out of said mines. That on said date plaintiff was being transported by defendant in a special trip of cars to his working place in said mines where plaintiff was to work in and about the business of defendant and by the invitation of defendant, and, while so transported, a rock which projected from the walls of said entry struck plaintiff. (Here follows catalogue of injuries.) Plaintiff alleges that he received said injuries by reason of and as the proximate consequence of the negligence of defendant, its agents or servants, in that defendant, its agents or servants, negligently allowed said rock, which struck plaintiff, to be and remain in dangerous proximity to the tram cars on which plaintiff was being transported to his said working place in said mines, as aforesaid, whereby plaintiff was injured as aforesaid, all to his damages as aforesaid.</p> <p>(E) Plaintiff adopts all of count D down to and including the catalogue of injuries, and adds thereto as follows: Plaintiff alleges that it was defendant’s duty to use reasonable care and skill in transporting plaintiff to his working place in said mines, and plaintiff alleges that defendant, its agents or servants, negligently failed to use such reasonable care or skill in so transporting plaintiff to his working place in said mines, but negligently allowed or caused plaintiff to have and receive the injuries and damages aforesaid; all to plaintiff’s damage as aforesaid.</p> <p>The pleas set up assumption of risk and contributory negligence, and using an unsafe way when there was a safe way known.</p>

<p>Appeal from Gadsden City Court.</p> <p>Heard before Hon. John H. Disque.</p> <p>Action by W. D. Pinckard and Carl Lay against C. G. Cassels in trover and conversion for two bales of cotton. Judgment for defendant, and plaintiff Pinckard appeals. Transferred from Court of Appeals under section 6, Act April 18, 1911 (Acts 1911, p. 449).</p> <p>Plaintiff claims through a mortgage executed by W. H. Edwards on May 23, 1914, and recorded on the same day. Defendant claims through a mortgage executed to him by W. H. Edwards on May 2, 1913, and recorded June 10, 1913. The cotton was grown on what is known as the Thornton land. The facts as to the renting sufficiently appear from’the opinion.</p>

<p>Certiorari to Court of Appeals.</p> <p>B. N. Baker sued the Western Union Telegraph Company for damages for delay in delivering a telegram, and obtained judgment therefor. The telegraph Company appealed to the Court of Appeals, where the judgment was affirmed. (14 Ala. App., 69 South. 246.) Defendant telegraph company brings certiorari to review and revise such judgment.</p>

Heard before Hon. W. W. Pearson. Action by Lula M. Ross against the City of Montgomery for damages occasioned by a defective sidewalk.

Heard before Hon. W. W. Haralson. E. T. Davenport & Company sued the Alabama Great Southern Railroad Co. for damages for setting out fire. Judgment for defendant, which, upon motion was set aside, and plaintiff granted a new trial, and defendant brings this appeal.

Circuit Court. Heard before Hon. E. C. Crow. Action by Leslie Morris, pro- ami, against W. W. Bragan, for damages for assault and battery. There was judgment for plaintiff in the sum of $1, and plaintiff appeals.

Heard before Hon. John C. Pugh. Action by Mollie Jones against the Central of Georgia Railway Company for damages for injuries in a crossing accident. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. E. Gamble. Action by Frank Carter against the Louisville & Nashville Railroad Company, for damages for personal injury sustained while in its employment. Judgment for plaintiff, and defendant appeals.

Heard before Hon. W. W. Haralson. Action by Mrs. Beulah Foley against the Alabama Great Southern Railroad Co. From a judgment for plaintiff, defendant appeals, The only count which was submitted to the jury, and in which plaintiffs case is stated, is count 5 as follows: “Plaintiff claims of defendant the sum of * * ’ * damages, for that heretofore * * * defendant was engaged in the business of operating a railroad in and through the town of Ft.

.Heard before Hon. J. W. Mabry. C, Action by Albert Meyer against the Pullman Company, for damages for breach of contract to furnish him and wife drawing-room transportation from Anniston to the East.

Heard before Hon. E. C. Crow. J. W. Miller sued the Southern Bell Telephone & Telegraph Company for damages for injuries suffered, and recovered a verdict for $2,000.00. He made application for new trial because of inadequacy of damages, and from the judgment of the court denying said motion he appeals.

Heard before Hon. D. W. Speake. Action by June Irwin against Tom Strain for damages for malicious prosecution and false imprisonment. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449.

Mrs. Leila Minderhout had judgment against the Postal Telegraph-Cable Company, for damages for personal injury, from which defendant took an appeal to the Court of Appeals where the cause was affirmed. (See 14 Ala. App., 71 South. 89.) Defendant petitioned for writ of certiorari to review that decision.

Heard before Hon. D. W. Speake. Action by Bennie Herring against the Louisville & Nashville Railroad Company for injuries received while on the track. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear from the opinion.

<p>Partition.</p> <p>1. Appeal and Error; Parties. — All the respondents will be treated as appellants, in the absence of any summons to the other respondents or severance prior to the submission of the cause, where the prayer for an appeal by an appellant is in behalf of “itself, and all other respondents.”</p> <p>.2. Same; Assignment; Joint. — Joint assignments by all the appellants as to errors prejudicial only to some of them are not available to reverse, and will not be considered on appeal.</p>

Heard before Hon. W. W. Whiteside. Bill by the Alabama Power Company against G. F. Hamilton and others, to enjoin the prosecution of numerous actions sounding in damages. Decree for complainants, and respondents appeal.

Heard before Hon. W. R. Chapman. Bill by Larue Horn and others against F. M. Prestwood. From a judgment for plaintiff, defendant appeals.

Heard before Hon, Thomas H. Smith. Bill by Robert C. Shwarz against the- Mobile Transfer Company, Incorporated, and others, to enjoin the use of a trade name or trade mark. Decree for complainant, and respondents appeal.

Heard before Hon. W. W. Whiteside. Bill by Jerry F. Tumlin and others, against Julia C. Tumlin and others, for partition of land, or for a sale for division. From a decree for respondents, complainants appeal.

Heard before Hon. W. W. Whiteside. Bill by Fannie Miller and others against the Vizzard Investment Company and others, for a sale for division of certain land. From a decree dismissing the bill complainants appeal.

Heard before Hon. Edward J. Gilder. Bill by Emma Pearl Herring against William Cunninghame, as executor, etc., to declare the probate of a will invalid and for an accounting. Decree for complainant, and respondent appeals. The allegation is that the execution of said will was obtained by undue influence on the part of William Cunninghame, executor named in said alleged will.

Heard before Hon. W. W. Whiteside. Bill by the Talladega Hardware Company against R. T. Smith and W. B. Gilbert. From a decree overruling demurrers to the bill, respondent Gilbert appeals.

<p>Material-man’s Lien.</p> <p>1. Mechanics’ Lien; Improving Wife’s Property; Husband’s Authority.— Where tho contract was admittedly with the husband alone, and he was not authorized by the wife to contract on her behalf for the material, a material-man had no lien under § 4754, Code 1907, for materials furnished for the improvement of the wife’s real estate.</p> <p>2. Same; Ratification. — The fact that the wife was constantly on the premises during the time while the work was in progress in which the materials were used, and caused changes in the plan to be made, did not constitute a ratification by her of the contract for materials so as to impose liability upon her for them.</p>

Heard before Hon. W. R. Chapman. Bill by T. L. McCullough against T. B. Bethea and others, for a specific performance. Decree for complainant, and.respondents appeal.'

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Bill by H. J. Inzer and others, against H. C. Robinson, for a sale of land for division. Decree for complainants, and respondent appeals.

<p>Bill to Declare Deed Fraudulent as Against Creditor.</p> <p>1. Fraudulent Conveyances; Creditors; Who Are; Torts. — Ordinarily claims for damages arising from torts are within the protection of the statute against fraudulent conveyances, as persons having such claims are regarded as creditors within the meaning of the statute.</p> <p>2. Death; Wrongful Act: Damages. — The damages provided for by § 2486, Code 1907, are punitive and not compensatory.</p> <p>3. Same. — The fact that the damages recoverable under § 2486, are declared thereby to be such as the jury may assess, clearly shows the legislative intent to be that actions under said section should be in courts of law where jury trials can be demanded as of right, which is not true in a court of equity, where the submission of issues of fact to juries is discretionary with the Chancellor, and the verdict rendered merely advisory.</p> <p>4. Fraudulent Conveyances; Creditor’s Bill; Unliquidated Claim for Tort; Inclusion. — Where plaintiff’s bill sought the recovery of a judgment against defendant under the provisions of § 2486, Code 1907, and to have conveyances of his property by defendant to his parents set aside as fraudulent under § 3739, Code 1907, the bill is without equity, since the claim being an unliquidated claim for punitive damages under § 2486, Code 1907, plaintiff was not a creditor within the meaning of § 3739, Code 1907.</p>

<p>Bill to Declare a Nuisance and for Damages.</p> <p>1. Water and Watercourses; Obstruction. — The owner of land has a right to discharge waters falling upon or flowing through his land onto the land lying below his, and can bo deprived of the right only by his own grant or license, or by condemnation for public use; hence, any obstruction by the lower proprietor resulting in unnatural enlargements of the stream to the injury of the upper proprietor, gives a right of action.</p> <p>2. Same; Dams; Erection. — While a riparian owner may erect a dam or ■detain water for reasonable purposes, yet if such act injure others, actionable injury results, as a man must use his .own property with reasonable regard for the rights of others.</p> <p>3. Same; Obstruction; Remedy, — Where the owner of a servient estate erects a dam across a stream, raising the waters on the dominant estate, the injury is, in its very nature, permanent and constantly recurring, and the legal remedies do not afford adequate redress; hence, a court of equity will intervene to abate the nuisance in order to prevent irreparable injury, and a multiplicity of suits.</p> <p>4. Estoppel; Acquiescence. — Although one who acquiesces for a time in an alleged nuisance may be denied equitable relief and left to his legal remedies, the fact that he knows that a structure is being built, and knows of its purposes, does not estojj him to sue to abate it as a nuisance, because of injuries thereafter arising, unless he encouraged the building of the structure.</p> <p>5. Limitation of Action; Accrual. — The ten year period of limitation in which one may sue for damages arising from a nuisance begins to run at the time of the working of the first injury or damages.</p> <p>6. Nuisances; Abatement; Damages. — Where equity assumes jurisdiction of an action to abate a nuisance it may award damages for injuries already sustained in order to do complete justice between the parties.</p> <p>7. Same. — In such an action the question of damages may be ascertained by the chancellor or referred to a register or submitted to the determination of a jury.</p> <p>8. Same. — Where the action was to abate as a nuisance a dam across a creek, it was proper to allow nominal damages for injuries accruing within twelve months next preceding the filing of the bill.</p>

Heard before Hon. W. R. Chapman. Bill by W. F. Mathews and another against the J. S. Carrol] ' Mercantile Company, which filed a cross-bill.. From a decree sustaining demurrers to the bill as amended and overruling demurrers to the cross-bill, complainants appeal.

Heard before Hon. W. R. Chapman. Bill by the United States Fidelity & Guaranty Company against A. E. Singleton, former judge of probate, and others, for subrogation to the lien of the county on property belonging to said judge at the time of the execution of the bond. Decree for complainant and respondent appeals.

<p>Bill to Cancel Conveyance.</p> <p>1. Deeds; Validity; Inadequacy of Price. — Inadequacy of price is not within itself sufficient to avoid a conveyance, but the conveyance must be shown to have been tainted with fraud; even then fraud and not inadequacy of price is the ground for equitable relief.</p> <p>_ 2. Same; Setting Aside; Evidence. — The evidence examined and held sufficient to warrant the cancellation of one of two deeds, but not of the other; the grounds alleged being fraud and inadequacy of price.</p> <p>3. Cancellation of Instruments; Costs. — Where respondents received and filed a voidable conveyance which constituted a cloud on complainant’s title, and necessitating the filing of a bill to set aside such conveyance, complainant was entitled to cost, although he did not secure the cancellation of other conveyances sought by the bill.</p>

<p>Bill to Define Boundary.</p> <p>1. Boundaries; Establishment, — Where the parties to a bill to establish an uncertain boundary line, the bill being filed under subdivision 5, § 3052, Code 1907, entered into a consent decree fixing the boundary, and providing for commissioners to lay it out, but making no provision in the decree for a report by the commissioners of the data or evidence upon which they acted, the report of such commissioner as to the true line could not be revised by the court, in the absence of evidence of fraud; it not appearing that the parties desired that such revision should be made.</p> <p>2. Same; Title, — Where the parties to a suit to determine disputed boundary lines entered into a consent decree establishing a line and by the agreement, which was carried into the decree, provided for commissioners to lay out the line, and to report whether respondent had been cultivating or using any lands on the other side of the agreed line, and to determine the value of the use, and the commissioners found that respondent had been using lands beyond his line, and fixed the value of such use, the respondent cannot complain of a personal decree rendered against him for the value of such use, on the ground that the court was exceeding .its power by proceeding to determine disputed title, since the consent decree- did not contemplate the determination of any such question, but merely to fix the value of the use of the land outside of respondent’s boundary.</p> <p>3. Equity; Jurisdiction; Money Decree. — A court of equity has jurisdiction to render a personal decree for the payment of money.</p>

Heard before Hon. W. R. Chapman. Bill by J. Pollock & Company against W. L. C. Haigler and others to remove the administration of an estate from the probate to the chancery court, and to discover and subject to complainant’s claim withheld and concealed assets. From a decree in vacation sustaining demurrers to the bill and dismissing it, complainants appeal.

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by J. W. Williams against H. L. Baines to quiet title to land. Decree for complainant, and respondent appeals.</p>

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. Gaston Gunter.</p> <p>Bill by the St. Louis & San Francisco Railroad. Company to enjoin certain orders of the Alabama Railroad Commission for additional train service. Decree for complainant, and the Railroad Commission appeals.</p>

<p>Appeal from Selma City Court.</p> <p>Heard before Hon. J. W. Mabry.</p> <p>Bill by J. Q. Smith against the Dallas Compress Company and others. From a decree sustaining a demurrer to his amended bill, complainant appeals.</p> <p>For a full statement of the facts in this case, see Smith v. Turpin, 109 Ala. 689, 19 South. 914, and Dallas Compress Co. v. Smith, 190 Ala. 423, 67 South. 289.</p> <p>The following is the amendment: Section 9Complainant further shows unto the court that he never had any knowledge •or notice of any of the facts in reference to the land involved in this suit until, to wit, some time in May, 1913, when, he received a letter from some attorney in Selma, Ala., making inquiry of complainant as to whether or not he made any claim to a part ■of the land involved in this suit; that up to this time this complainant never knew that his father had ever owned any property in Dallas county, Ala.; that up to said time he never knew nor was he in possession of any fact which would put him on notice of the execution of any of the instruments or conveyances mentioned in this bill; that complainant’s mother had never disclosed to complainant, nor was complainant in any way informed by her that his father ever owned any of the property involved in this suit, or that said antenuptial contract was ever executed, or that this complainant had any interest in the property involved in this suit. Complainant avers that he was an infant of Render years, about one year of age, at the time of the execution of the deed by complainant’s mother to Ikelheimer; that this complainant had never lived in Dallas county, Ala.; that he never knew or heard until the communication from the said attorney in Selma, Ala., above referred to, that his father ever owned or was interested in any property in Dallas county, Ala., or that this complainant had any interest in any property in said county. Complainant also avers that the said Ikelheimer, and those claiming through him, have never at any time brought any knowledge home to this complainant that they were holding or claiming said property adversely to the rights of this complainant, or the rents, issues, incomes, or profits therefrom, antagonistic to the rights of this complainant, and that no demand has ever been made by this complainant, or any one authorized to act for him, on any of these parties respondent for an accounting, or for maintenance and support. Complainant avers that immediately after the receipt of the communication above referred to he began an investigation of his rights to the property involved in this suit, and filed this, his bill of complaint, within four months thereafter, and as soon as he could ascertain sufficient facts on which to base his complaint. Plaintiff further avers that none of the parties respondent have been prejudiced by the seeming delay in this cause, and that they each took whatever part of the property they have an interest in with notice of the said antenuptial contract executed by complainant’s father, and that they have never brought to the notice or knowledge of this complainant, or made any open disavowal of, the trust therein created for complainant’s benefit. And complainant avers that it was the intention of complainant’s father in said antenuptial contract to provide such child or children as might be born of the marriage mentioned therein with maintenance and support so long as such child or children might live up to the death of the said Marie L. Smith, and that such maintenance and support was to continue until the death of said Marie L. Smith, during the life of such child or children and not to cease until such child or children became of lawful age, and that it was the further intention of complainant’s said father in said instrument that said maintenance and support should be allowed from time to time as such child or children might require the same.</p> <p>The same demurrers were refiled to the bill as amended, and the additional demurrer that it does not state a case of secret fraud, nor does it sufficiently state that any of the conveyances were fraudulently concealed or that the grantees therein were guilty of any fraud in acquiring said land, etc.</p>

Heard before Hon. W. R. Chapman. Bill by Schloss & Kahn against Laura K. Brightman and others to declare respondent Brightman a trustee, for an accounting and sale of the land to pay an indebtedness due by her decedent. Decree for respondent, and complainant appeals.

Heard before Hon. Thomas H. Smith. The original bill was filed by Howard D. Johnson and others against Jennie H. Bidwell, executor, etc., for the removal of an estate from the probate to the chancery court, which order was granted, and upon a reference the master determined that the solicitor for complainant in the original bill was entitled to compensation from the estate for services rendered, and decreed accordingly.

<p>Bill by Wife to Cancel Deed as Surety for Husband.</p> <p>Husband and Wife; Contract; Surety for; Cancellation. — Where a deed executed by the wife recited that the grantee therein would reconvey the property upon the payment of a debt due by the husband of the grantor, and the grantor filed a bill to cancel the instrument on the ground that it was in fact a mortgage to secure a debt of the husband, the bill reciting that she had paid the debt due by her to the grantee, but had not paid her husband’s debt, the allegations of the bill, considered in connection with the provision of the deed, were sufficient to show, if sustained by the evidence, that the conveyance was executed in violation of § 4497, Code 1907, and an order sustaining a demurrer to the bill was erroneous.</p>

Heard before Hon. James E. Horton, Jr. Petition in intervention by the Lummus Cotton Gin Company against A. E. Walker, Superintendent of Banks of Alabama, administering the affairs of the insolvent German Bank of Cull-man, to establish a claim as a preferred creditor. Relief denied, and petitioner appeals.

Heard before Hon. W. H. Simpson. Bill by Ignatius Poliak against the Stouts Mountain Coal & Coke Company and others, for discovery and accounting. Decree for complainant, and respondents appeal. By a written contract dated May 4, 1907, the complainant Poliak leased to respondent certain coal lands, with the right to mine for three years, unless the coal should be exhausted sooner.

Heard before Hon. H. B. Foster. Bill by Ida Long and others, against J. T. Long and others, for partition or sale for division. Decree for complainants, and respondents appeal.

<p>Specific Performance.</p> <p>1. Homestead; Selection; Sale; Part. — Where the owner of land sells a part thereof, the original tract being greater in value than $2,000.00, or in area than 160 acres, but leaves including the dwelling and land contiguous thereto, the maximum value or area allowed by law for the homestead, he selects a homestead to the exclusion of the alienated tract, and the provisions of § 4161, Code 1907, are without application to the sale.</p> <p>2. Specific Performance; Encumbrance; Willingness to Accept. — Where a buyer of land was willing to accept a deed thereto not joined in by the wife of the seller, the failure or refusal of the wife to execute the deed was no obstacle to its specific performance, the land being thus encumbered with her inchoate dower right.</p> <p>3. Same; Pleading; Proof; Variance. — Where the bill sought specific performance of a contract to convey land, and the bill alleged that the price agreed on and paid was $50, but it appeared from the evidence that the real consideration was the difference between the value of horses exchanged between the buyer and the seller, there was no variance, although the difference in value was in fact but $35.00; the material issue in a spedific performance action being whether the consideration is fair and reasonable, and it is of no consequence whether such consideration be expressed in terms of cash or its equivalent in property, and proof of a different consideration, not changing the rights of the parties or destroying the right of redress, is not a variance.</p> <p>4. Same; Agreement. — Where the owners of horses exchanged them, one agreeing to convey an acre of land to the other as the difference between the value of the horses, and which difference was at least as much as the acre of land was worth, the party to whom the conveyance was agreed to be made was entitled to specific performance.</p> <p>5. Same; Failure of Consideration; Novation; Burden. — In a suit for specific performance of a contract to convey land, the burden is on respondent to establish defenses of partial failure of consideration and novation, whereby complainant agrees to pay an additional price which he had failed to do.</p> <p>6. Same; Relief Warranted; Enforcement of Lien. — Where complainant did not make out his right to a specific performance of an agreement to convey land, the court may retain the bill to do equity by compelling respondent to restore the value paid him; the complainant having an equal equity to recover the consideration paid, or to have compensation for improvement.</p> <p>7. Same. — Where complainant was entitled to the relief prayed the respondent could not complain of the decree declaring a vendor’s lien on the land in favor of complainant for the collection of the consideration paid, granted as an alternative to the spocific performance under the general prayer of the bill and power of the court since respondent created a condition which would have supported the decree under a special prayer for the relief.</p>

Heard before Hon. James E. Horton, Jr. Bill by J. O. Crow against F. M. Warren and others, first, to reform a certain mortgage, and as reformed, to foreclose it. From a decree overruling demurrers to a bill, respondents appeal.

Heard before Hon. J. J. Curtis. Bill by Henry C. Snow and others against Jack Franklin for a sale of land for division and distribution. Decree for complainant, and respondent appeals.

Heard before Hon. H. A. Sharpe. Bill by the American Lumber & Export Company against P. B. Bower, as Tax Collector, to recover a sum of money paid voluntarily to defendant, as Tax Collector. Decree overruling demurrers to the- bill, and defendant appeals.

<p>Appeal from Henry Chancery Court.</p> <p>Heard before Hon. W. R. Chapman.</p> <p>Bill by the Owens Horse & Mule Company against S. R. Brackin, to foreclose a mortgage. Decree for complainant, and respondent appeals.</p>

Heard before Hon. Thomas H. Smith. Bill by Joseph F. Durham against John T. Roe, Bell McGowin Roe, Lena McGowin, and the Roe Drug Company, to hold the corporation liable in judgment for a certain debt owed to the corporation by one W. T. McGowin, and to compel its payment out of corporate assets. From a decree overruling demurrers, defendants appeal.

Heard before Hon. Ed. T. Albritton. Bill by William R. Barnes against Frank White and others, to specifically perform an oral contract to convey lands. From a decree for respondents, complainant appeals.

Heard before Hon. W. W. Whiteside. Bill by Julia Hill Marshall against John P. Lister and others to enjoin the advertising, selling, or offering for sale of certain lands. Decree for respondents, and complainant appeals.

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by S. C. M. Amason against H. M. Hartón and others. From decree overruling demurrers to the bill, respondents appeal.</p> <p>The bill alleges the employment by Hartón of' orator as an attorney to advise him as to his rights against the other respondents to this cause, or some of them, and that Hartón authorized the institution and prosecution of a certain suit in the chancery court of Jefferson county against all the respondents to this suit, together with one Lula B. Hartón, said cause being numbered 5443, in said chancery court; (2) that orator and Hartón, on April 15, 1910, entered into a certain written contract of that date, as to the terms of orator’s employment with relation to said suit, and the fee he was to receive for the services rendered therein, a copy of which is attached and marked “Exhibit A.” The bill then gives the history of the work done, and the appeals prosecuted from the decrees rendered. It is then alleged that while said last appeal was pending, as aforesaid, Hartón, with orator’s consent, entered into negotiations with defendants, or some of them, for a settlement of the litigation, and later orator was informed by the solicitors of record for respondent, and also by Hartón, that the negotiations had resulted in an agreement for settlement between them, and later, in May, 1915, an instrument, setting forth the terms of said agreement for settlement, was submitted to orator for his approval by counsel of record for respondent, which instrument already bore the signature of said Hartón, as well as those of the several respondents, and your orator on, to wit, May 3, 1915, indorsed thereon the following words: “I hereby consent to the foregoing agreement of settlement.” A copy of the agreement is made Exhibit B. Orator further shows that afterwards, and in furtherance of said settlement, the respondents Enslen, Johnson, and the Empire Realty-Company, either separately or jointly executed to defendant Windsor Realty & Trust Company deeds purporting to convey to such company all the property recited in said agreement of settlement, which respondents had obligated themselves therein to convey to Hartón, or to the said Windsor Realty & Trust Company, as the said Hartón should require, and the title to all of said property now appears by the record in the office of the judge of probate of Jefferson county, to remain in the said Windsor Realty & Trust Company. It is alleged, further, that Hartón had refused to pay him for his services as counselor and solicitor under the contract; that complainant had never compounded with him for the same, and that the deeds to the property were executed to the said Windsor Realty & Trust Company without orator’s consent; and that orator has never consented to it being conveyed by respondents to anybody, even to said Hartón, before orator’s fee for his services 'should have been paid or otherwise secured to said orator than by the statutory lien in favor of attorneys at law; and that the said Windsor Realty & Trust Company is chargeable with full knowledge that orator has not been paid or settled with for his said fees, because Hartón is and has always been president of said corporation, and said corporation is, as orator verily believes, a mere volunteer to the title of said property. The bill was afterwards amended by alleging that the suit was for money, among other things, and the prayer was amended by praying in the alternative that the conveyance of the lands under the direction of defendant Hartón to defendant Windsor Realty & Trust Company, before orator’s claim was satisfied, was a fraud against orator, and that for that reason the said Windsor Realty & Trust Company holds title to said land as a trustee to satisfy the claims of orator as a creditor of defendant. The substance of the agreement sufficiently appears.</p>

<p>Bill to Reform and to Specifically Perform.</p> <p>1. Husband and Wife; Contract of Wife; Coveture; Joinder. — Where a contract for the exchange of land made between married women bears the mere signature of the husband, that is sufficient to indicate the assent of the husband, if the wives are otherwise bound by their signature.</p> <p>2. Specific Performance; Bill; Demurrers. — Where such authority is not alleged in the bill it must be assumed that a husband had no written authority to contract to convey land belonging to his wife, where the question arises on demurrer to the sufficiency of a bill to specifically perform the contract.</p> <p>3. Same; Oral Contracts; Enforcement; Partial Performance. — While, under the statute of frauds, a contract which is invalid, though partially performed, cannot be enforced against the party whose signature is insufficient, yet the filing of a bill for specific performance of a contract by such person is a sufficient compliance with the statute.</p> <p>4. Same; Wife’s Land; Contract of Husband. — Construing §§ 3355 and 4494, Code 1907, it is held that where the husband signed a contract to convey lands belonging to the wife for himself and as agent for the wife, having no written authortiy from his wife to convey her lands, the contract was not enforceable against the wife, as the husband did not join in the alienation since the wife was not bound by his signature, in the absence of express written authority.</p> <p>5. Frauds; Statute of; Effect. — The statute of frauds does not avoid parol contracts, but merely lays down a rule of evidence by which the contract, must be established, thus rendering them voidable at the election of the non subscribing party.</p> <p>6. Contracts; Consideration; Mutual Promise. — While one promise is a sufficient consideration for another promise, no consideration can be established where the promise of one party is not enforceable against him, because of defective signature to the contract.</p> <p>7. Specific Performance; Contract of Wife; Validity; Enforcement.— While equity may dispense with mere form and enforce a contract, which' it does when it enforces a contract which is voidable under the statute of frauds for lack of proper evidence, it cannot enforce a contract of a wife to convey her lands, which is not properly signed by the husband, as that is a condition of the wife’s power to contract.</p> <p>8. Same; Validity of Contract — Where a contract could not be sufficiently enforced when made, because the signature of the husband assenting to a' conveyance of the wife’s realty did not comply with the statute, a subsequent tender of a deed signed by the wife and the husband was of no avail, as the other party was without recourse between the time of the signing of the contract and the tender of the deed.</p>

Heard before Hon. A. H. Benners. Bill by the Jefferson Plumbers & Mill Supply Company against Mrs. Ailie Peebles to foreclose a materialman’s lien upon a certain lot and building thereon. Decree for respondent, and complainant appeals.

Heard before Hon. W. W. Pearson. Bill by H. T. Littlejohn, as a taxpayer of Chilton county, against J. Wiley Littlejohn, as Treasurer, to enjoin payments out of the county’s money on certain interest-bearing warrants issued by the commissioners’ court of the county to J. G. Brown in payment of certain road work construction under contract made with the commissioners’ court. From a decree denying relief, respondent appeals.

Heard before Hon. Saffold Berney. Henry B. Pake was made assignee for the benefit of creditors of an insolvent bank, and was removed from the administration of the trust and Harry A. Horst was substituted as trustee. Upon the settlement between the trustees, the Chancellor sustained exceptions to the report of the Register denying the original trustee or assignee any compensation and the substituted trustee and some of the creditors appeal.

Heárd before Hon. James E. Horton, Jr. Bill by Minnie Johnson against her husband W. J. Johnson, for alimony, but not divorce. From the decree, and order of reference, the respondent appeals.

Heard before Hon. John H. Disque. Bill by Russell & Duke, and others, for an injunction, and to redeem and foreclose, filed against I. S. Brothers and others. From a decree overruling demurrers to the bill, and a motion to dissolve the injunction, respondents appeal.

Heard before Hon. A. H. Benners. Bill by R. G. Hewitt, as receiver of a dissolved and insolvent corporation, against Oscar R. Hundley, to enforce an unpaid stock subscription. From a decree overruling demurrer to the bill, respondent appeals. The fifth and eighth paragraphs of the bill sufficiently appear. The third paragraph sets up the declaration of dissolution of the corporation, and the appointment of Hewitt as receiver.

Heard before Hon. W. W. Whiteside. Bill by Mary Louise Phinizy and others, minority stockholders of the Anniston City Land Company, against that corporation and others, for a dissolution of the corporation, the appointment of a receiver, and to sequester and distribute the assets of the corporation. From a decree sustaining demurrers to the bill, complainants appeal.

Heard before Hon. W. G. McCorvey. Bill by Ida P. Watkins and others against R. Z. Chapman and others to remove a settlement of an estate from the probate to the chancery court, to annul certain deeds, and for other relief. From a decree for respondents on their cross bill, and for complainants as to other matters, certain of the complainants appeal.

Theo Lacy was convicted of embezzlement, and on appeal to the Court of Appeals the judgment of the. lower court was affirmed, and he brings certiorari to review the judgment and decision of that court.

<p>Capital Felony.</p> <p>Criminal Law; Appeal; Record; Arraignment; Sufficiency. — Where the judgment entry on conviction of one charged with a capital felony combined the cases of two defendants, each being tried on separate indictments, the fact that the entry concluded with an incomplete recital as to the proceedings on the trial of the other defendant, was immaterial, and did not vitiate the recitals of the entry as to the defendant appealing.</p>

<p>Murder.</p> <p>1. Jury and Jurors; Variance in Name; Contiuance. — Under § 32, Acts 1909, p. 320, the fact that one of the veniremen named Walker L. Brooks was drawn and summoned under the name of Walter L. Brooks, and so noted on the copy served on defendant, would not justify a continuance as it would be presumed to be merely a mistake, in the absence of evidence to the contrary.</p> <p>2. Criminal Law; Admissions; Confessions; Distinction. — There is a well defined distinction between inculpatory admissions of collateral facts by a defendant, and confessions or admissions in the nature of confessions of actual guilt.</p> <p>3. Evidence; Inculpatory Admissions; Predicate. — Conversations had by defendant with state witnesses in the nature of inculpatory admissions of collateral fact, and not confessions of guilt, were admissible without a predicate of voluntariness, they being prima facie voluntary.</p> <p>4. Same; Accomplices; Corroboration. — The evidence examined and held to warrant a conviction independent of the testimony of an accomplice.</p> <p>5. Charge of Court; Accomplices; Corroboration. — In this case a charge that there was sufficient corroborative evidence of the accomplice to submit, the question of guilt, and that the question whether such evidence had been sufficiently corroborated to warrant a conviction was for the jury,' was proper.</p>

Heard before Hon. H. P. Heflin. Sol Holmes was convicted of murder in the first degree, and he appeals. Charge 4, requested and refused, is as follows: The court charges the jury that, under the evidence in this case, if you believe the defendant was in imminent peril of life or great bodily harm, and could not have retreated without increasing his peril, then the burden is on the state to show that defendant was not free from fault in bringing on the difficulty.

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. H. P. Heflin.</p> <p>John Wilson was convicted of murder, and he appeals.</p>

Heard before Hon. William E. Fort. Jesse White was convicted of murder, and he appeals. The facts sufficiently appear.

<p>Murder.</p> <p>1. Evidence; Opinion; Expert. — The appearance of fresh blood is within the common knowledge of mankind, and a witness need not be an expert on blood in order for him to testify that fresh marks and spots on defendant’s hands and clothing were made by blood.</p> <p>2. Trial; Objections to Evidence; Time. — Where no objection was interposed to the competency of a witness to give expert testimony before he answered the questions propounded, the objection by motion to exclude came too late.</p> <p>3. Appeal and Error; Harmless Error; Evidence, — Where the same fact was testified to by numerous other witnesses without objection, and was admitted by defendant, its admission was harmless, if error.</p> <p>4. Homicide; Dying Declarations. — Where shortly before his death deceased stated that he was dying, and that defendant had cut his throat, his request in connection therewith that a doctor be called could indicate only a hope for relief from suffering, not a hope that Ms life could be saved, and does not render his dying declarations inadmissible.</p>

<p>Appeal from Marengo Law and Equity Court.</p> <p>Heard before Hon. R. I. Jones, Special Judge.</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 Lowndes Chancery Court.</p> <p>Heard before Hon. W. R. Chapman.</p>