Volume 197 — Alabama Reports

<p>Appeal from Madison Circuit Court.</p> <p>Heard before Hon. R. C. Brickell.</p> <p>Petition by the State of Alabama, on the relation of T. T. Terry, for mandamus, to M. H. Lanier, President of the Board of Commissioners of the City of Huntsville-, to require him to submit at an election of the qualified electors the question ■ of abandoning the commission form of government. From a decree sustaining demurrers to the petition, relator appeals.</p> <p>The petitioner alleges that a petition signed by the requisite number of qualified voters was addressed and submitted to and filed with the judge of probate, and that after a scrutiny of the signatures of said petition he found that they were requisite in number and qualified electors, residents of the city of Huntsville, and in his official capacity did certify and deliver to said M. H. Lanier, president of the board of commissioners, the original petition, together with a certified copy of his certificate, and further certifying to the genuineness of the petition, and that notwithstanding all this said Lanier has refused and declined, and still refuses and declines, to submit the question of abandoning the commission form of government to the qualified electors of the city of Huntsville at a special election as provided by law.</p>

Heard before Hon. John H. Disque. Action by Leonie Bessiere as administratrix, against the Alabama City, Gadsden & Attalla Railway Company, for damages for the death of her intestate. Judgment for plaintiff and defendant appeals. The facts and the pleadings are sufficiently stated in the opinion in this appeal and the other appeals referred to in the opinion.

Heard before Hon. E. C. Crow. Action by the Fitz Water Wheel Company against K. L. Hurst for the price of goods sold. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals.

<p>Injury to Servant.</p> <p>1. Master and Servant; Injury to Servant; Complaint. — A complaint alleging that plaintiff's injuries were caused by a hammer falling and striking him on the head, and that the injuries proximately resulted by reason of the negligent failure of defendant to furnish plaintiff a reasonably safe place to work, was sufficient in allegation of negligence as a common law action by a servant against the master.</p> <p>2. Same; Instructions. — A charge relieving defendant from liability if the superintendent of defendant warned plaintiff away from the smokestack, was properly refused, where it appeared that the superintendent warned plaintiff away from the top of the stack, but not from the bottom, where he was injured.</p> <p>3. Same; Jury Question; Proximate Cause. — If a servant is injured by being struck by an object falling, he being at the time in the discharge of his duty, and the master has failed to take proper measures to protect him, causal connection between the injury and the failure of the master to protect against it, is ordinarily a question for the jury.</p>

<p>1. Fraudulent Conveyances; Consideration; Contradiction. — If the valuable consideration recited in a deed from a husband to his wife, is merely nominal, and for the self evident purpose of coloring a gift as a sale, such deed will be considered as voluntary as to the husband’s creditors, and parol evidence of a substantial valuable consideration is not admissible to support it.</p> <p>2. Same; Voluntary; Nominal. — A deed from a husband to his wife conveying land worth $10,000, but carrying an incumbrance of $5,000, upon a recited consideration of $100, and love and affection, is not a purely voluntary conveyance on its face.</p> <p>3. Same; Antecedent Debt; Burden of Proof. — Where the conveyance was attacked as fraudulent, if the consideration paid by the grantee was an existing debt due him from the grantor, he must not only show the bona fide existence of the debt, but also that the value of the property was not more than the fair equivalent for the debt, and when this is done, the intention of the parties to hinder, delay or defraud the creditors of the grantor is immaterial, and will not defeat the conveyance.</p> <p>4. Same; Burden of Proof. — Where complainant shows that his debt antedated the conveyance, the burden shifts to the grantee to show that he paid a valuable substantial consideration, and not merely a nominal one, whereupon, the burden rests upon complainant to show that the grantee had notice of an intent by the grantor to hinder, delay or defraud his creditors.</p> <p>5. Same; Inadequacy of Consideration. — Where a conveyance by the husband to his wife was attacked as fraudulent, in an action in ejectment, and the only consideration actually stipulated for and paid, was a valuable consideration, its inadequacy was effective only to show, as an inference to be drawn by the jury or not, the fraudulent intent of the parties towards the creditors of the husband; it not appearing that the husband was insolvent, failing or embarrassed when he made the conveyanace.</p> <p>6. Frauds; Statute of; Conveyance in Consideration of Marriage. — A parol agreement or promise in consideration of marriage is void under the statute of frauds; hence, the execution by the husband of such an agreement after marriage is without consideration to support it, and is purely voluntary as to pre-existing creditors of the husband.</p> <p>7. Deeds; Voluntary. — A voluntary deed, in a court of law, is one which is given without any valuable consideration, as the term “consideration” is defined by law, which must be substantial as opposed to nominal merely.</p> <p>8. Fraudulent Conveyance; Voluntary; Husband and Wife. — Where a divorced wife promised to re-marry her former husband in consideration of his conveyance of land to her, and also to give him $500 as a money inducement to the grant, the non legal character of the marriage promise as a consideration did not deprive the transaction of its standing in law as based on a valuable consideration.</p> <p>'9. Same; Jury Question. — Under the evidence in this case, it was a question of fact for the jury to determine whether the deed attacked as fraudulent was in fact based on the pecuniary consideration therein recited, and, if so, whether it existed as a present consideration, or merely as a past indebtedness for money received by the husband from the wife.</p> <p>10. Same; Partial Invalidity; Rule in Equity. — When a conveyance is fraudulent, made upon a consideration which is valuable, but substantially inadequate, and the grantee is without notice of intent on the part of the grantor to defraud creditors, and the grantee intends no fraud, in equity the conveyance will stand as security for the value actually paid, it not being wholly void.</p> <p>11. Same; Legal Rule. — In courts of law a conveyance fraudulent as to the grantor’s creditors must stand or fall in its entirety.</p> <p>12. Same; Consideration; Notice or Participation in Intent. — Where the-grantee pays a valuable money consideration for the conveyance, though inadequate, the conveyance is not void as to the creditors of the grantor unless the grantee had notice of or participated in the fraudulent intent of the-grantor to hinder, delay or defraud his creditors.</p> <p>13. Same; Intent. — A grantor’s intent to hinder, delay the. collection of his. debts is just as fraudulent as if made to defraud his creditors.</p> <p>14. Appeal and Error; Harmless Error; Instructions. — Where the court’s-oral charge specifically embodied the substance of a requested written charge, the refusal of the written charge is harmless.</p> <p>15. Fraudulent Conveyance; Good Faith; Evidence. — Where the action was ejectment, and the plaintiff claimed title by purchase under execution sale against a party deriving title from the judgment debtor through conveyance-from the judgment debtor to his wife, the terms of the verbal, ante-nuptial agreement between the judgment debtor and his wife, in which the debtor orally agreed to convey land to his wife in consideration of her marrying him, was admissible to show good or bad faith in the transaction towards the creditors of the debtor.</p> <p>16. Same; Husband and Wife. — The fact that the grantee in a conveyance by the debtor is the wife of the debtor, is not in itself a badge of fraud, but only a suspicious circumstance not altering the application of the general rules of law governing conveyances between unrelated persons, nor shifting the burden of proof which would otherwise prevail.</p> <p>17. Evidence; Parol to Vary Writing; Deeds; Consideration.' — Where the deed recited a money consideration of $100, it was proper to admit evidence to show payment of any greater amount of money or value than $100; the rule that the recital of cosideration cannot be varied by evidence of a consideration differing in kind, changing the legal effect of the instrument, being without application.</p> <p>18. Fraudulent Conveyance; Evidence. — Where the action was ejectment by a purchaser under execution sale, and against a party deriving title from the judgment debtor through conveyance from the debtor to his wife, and the conveyance to the wife was attacked as fraudulent, the defendant may show that the wife had no knowledge of the debts of her husband, just as it was competent for plaintiff to show tha't she had such knowledge, such as by showing that her husbanad never informed her of his debts.</p> <p>(Anderson, C. J., dissents.)</p>

Heard before Hori. Marion H. Sims. Action by Dora Jordan for damages against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals. The pleadings, the facts and most of the charges sufficiently appear.

APPEAL-from Jefferson Circuit Court. Heard before Hon. E. C. Crow. Action by J. T. Lovinggood against the Greenwood Cafe. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts 1911.

<p>Appeal from Walker Circuit Court.</p> <p>Heard before Hon. J. J. Curtis.</p> <p>Bill by Levi R. Davis against Willie Thomas and others, to cancel and annul a decree. From a judgment on demurrer entered in vacation, and a decree pro confesso, respondents appeal.</p>

<p>Prohibition.</p> <p>Municipal Corporation; Officers; Recall. — Section 14, Acts 1911, p. 345, is void as violative of § 175, Constitution 1901, since the act fixes the term of office at three years, and the additional phrase “until his successor is elected and qualified” does not have the effect to make the term indefinite or uncertain, nor does § 14 operate upon the term to cut it down to an indefinite or unfixed term, but operates only upon the individual commission.</p> <p>(Sayre, Gardner and Thomas, JJ., dissent.)</p>

Heard before Hori. J. J. Curtis. Action by H. Jolley against the Southern Railway Company for damages for the death of his intestate, a child between eight and nine years of age. Judgment for defendant and plaintiff appeals.

Heard before Hon. Thomas H. Smith. Bill by G. T. Jordan against L. Reeves and others, to establish a partnership, and for an accounting. From a decree for complainant respondents appeal.

<p>Injury to Team on Track.</p> <p>1. Railroads; Injury -on Track; Subsequent Negligence. — Where the action was against a railroad for killing animals at or near a track, and the complaint charged negligence generally, plaintiff can recover on proof of negligence subsequent to the actual discovery of a person or animal in a place of danger on or near the track.</p> <p>2. Same; Duty to Trespassers. — A railroad company owes a trespasser no duty except to exercise reasonable care and diligence to avoid injuring him as soon as his peril becomes apparent.</p> <p>3. Same; Knowledge ®!: Peril. — The engineer in charge of the locomotive must have actual knowlege of the peril of the situation of a person or thing on the track to charge the road with liability for consequent injuries.</p> <p>4. Same; Discovery; Duty. — After the agent of the railroad discovered the wagon and mules on the track, it became the duty of the agent to use all means and appliances known to prudent and skillful locomotive engineers, to avoid injuring them, a duty not satisfied by ordinary diligence.</p> <p>5. Same; Diligence. — The term “diligence” is a relative term when applied to the duty of a locomotive engineer to avoid injuring those whom he discovers to be in a perilous position on the track ahead of him, and what is due diligence must be determined by the circumstances of each case.</p>

<p>Assumpsit.</p> <p>1. Vendor and Purchaser; Title of Vendor; Contract; Approval of Counsel. — Where the contract was for the sale of land, dependent upon title in the vendor satisfactory to the attorney of the purchaser, a recovery depended upon the good faith of the expressed dissatisfaction of the attorney of the purchaser.</p> <p>2. Same. — As bearing on the issue of the good faith of the attorney of the purchaser in rejecting title as unsatisfactory, the sufficiency of the title is a pertinent issue.</p> <p>3. Same; Adverse Possession. — Where the vendor’s title is by adverse possession, and the lands had not actually been occupied, and both the character and continuity of possession are in dispute, the rejection of such title by the attorney of the purchaser cannot be deemed capricious or in bad faith.</p> <p>4. Same; Failure of Title to Part. — Where the contract was for the sale of land, depending upon satisfactory title to the whole, it is not separable, and proportionate compensation will not be awarded upon a failure of title as to 20 acres out of the 900 acres.</p> <p>5. Same; Defective Title; Notice. — Where the agent of the vendor was notified that the title was defective, and submitted a second abstract which did not remove the objection, he was not entitled to notice further that the title was unsatisfactory.</p>

Heard before Hon. J. C. B. Gwin. Action by George Hicks against the Western Union Telegraph Company, for damages for delay in the delivery of a death message. Judgment for plaintiff and defendant appeals.

Heard before Hon. W. W. Pearson. Bill by Amanda Jane Mims and another against W. D. Davis and others, to construe the will of Shadrach Mims, and for other purposes. From a decree sustaining demurrers to the bill complainant appeals.

Heard before Hon. N. D. Denson, Special Judge. Action by Canty Chambers, pro ami, against the Central of Georgia’ Railway Company, for damages for personal injury. Judgment for plaintiff and defendant appeals.

Heard before Hon. E. C. Crow. Action by Annie O’Brien against the Birmingham Railway, Light & Power Company, revived in the name of her administrator, for damages for injury to intestate while a passenger. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear in the opinion, and on the report of the former appeal.

Heard before Hon. E. C. Crow. Action by the International Sugar Feed Company. No. 2, against the Miller Grain & Commission Company, on a bill of exchange. Demurrer was sustained to certain of the pleas of defendant, and from the judgment rendered defendant appeals. Transferred from Court of Appeals.

Heard before Hon. C. P. Almon. Action by Ruth K. Seivally as administratrix of the estate of D. W. Seivally, for damages for the death of her intestate. Judgment for plaintiff and defendant appeals.

Clair Circuit Court. Heard before Hon. James E. Blackwood. Action by Herman Roberts, pro ami, against the Pell City Manufacturing Company, for damages for injury suffered while in its employment. Judgment for defendant and plaintiff appeals.

<p>Bill to Quiet Title.</p> <p>1. Quieting Title; Burden of Proof. — Where the action was to quiet title under the statute, and the undisputed evidence shows that both parties claim title from a common source, the respondents under a will, and the complainants by conveyance during the lifetime of a common grantor, the burden rests on the complainant to show such conveyance, and not on ‘respondents', to negative the conveyance.</p> <p>2. Same; Evidence. — In this action the evidence is held to be insufficient to prove the execution and delivery, for a consideration, of a valid deed during the lifetime of the common grantor.</p>

Heard before Hon. Thomas H. Smith. Bill by John Berglin against Harry L. Mizamore to enforce a vendor’s lien, and for other purposes. Decree for complaint and respondent appeals. The bill in this case was filed by the appellee against the appellant and shows the following facts: The complainant is the owner of 320 acres of land described in the bill, and has owned the same for many years.

Heard before Hon. Bernard Harwood. Assumpsit by Grasselli Chemical Co. against J. C. Guin and another. Judgment for plaintiff and defendants appeal. The plaintiff stated his case in several counts based on promissory notes, and on the common count.

<p>Appeal from Montgomery Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Petition by Jesse F. Stallings and another for mandamus directed to M. P. Allgood as State Auditor, to require him to issue his warrant in payment of certain services rendered by petitioner in certain tax cases. From a judgment granting the writ the Auditor appeals.</p>

<p>Detinue.</p> <p>1. Appeal and Error; Review; Findings. — Where there is evidence amply sufficient to support a verdict for either party, the appellate court will not revise or review disputed questions of fact, as such court can review only questions of law properly presented.</p> <p>2. Detinue; Evidence. — Where plaintiff had voluntarily testified to the purchase of certain articles from a widow, and introduced a receipt as to all or part thereof, and a showing as to the value of each, and as to the amount of the mortgage debt, and other debts which the husband of the widow owed him, and that the property was taken in payment of such debt, it was competent for defendant to prove by the plaintiff and other witnesses the value of the articles purchased.</p> <p>3. Same. — In such a case a receipt reciting a consideration of some hundreds of dollars for all the property in gross, purchased by plaintiff of the widow, was open to explanation by parol evidence, it not being a writing conclusive as to its recitals.</p> <p>4. Appeal and Error; Invited Error. — It is not error to receive irrelevant evidence to rebut evidence of like kind offered by the complaining party.</p> <p>5. Witnesses; Cross Examination. — It is largely discretionary with the trial court what extent and scope it will give to the cross examination of a witness.</p> <p>6. Same; Review; Jury Question. — The truth or falsity of a witness’s testimony is a question for the jury.</p> <p>7. Detinue; Evidence. — Where the action was detinue, plaintiff claiming as purchaser from a widow, and the widow testified that her agreement to sell was conditioned on the fact that plaintiff held a mortgage on the property, it was competent for defendant to prove that plaintiff had no mortgage.</p> <p>8. Evidence; Part of Conversation. — Where plaintiff proved part of a conversation between him and the widow from whom he claimed to have purchased certain property, it was competent for defendant to introduce all that was said therein, relating to the subject matter of the suit.</p> <p>. 9. Detinue; Evidence. — Where plaintiff claimed as a purchaser from a widow, property taken in satisfaction of her husband’s indebtedness to him, which was secured by mortgage, evidence that all the indebtedness due plaintiff from the husband was paid by other property taken by plaintiff, and applied thereto, and that no consideration passed from plaintiff for the property, was admissible.</p>

Heard before Hon. Wm. H. Simpson. Bill by Jennie S. Snider against Mattie L. Stewart to cancel certain mortgages and deeds as a cloud upon title, because given by-the wife as surety for the debt of her husband. Decree for complainant and respondent appeals.

Heard before Hon. Thomas W. Wert. Bill by Etta B. Fair against W. S. Cummings for the cancellation of a mortgage From a decree overruling a motion for dissolution of an injunction granted to the defendant, plaintiff appeals. Appellants filed a bill in this cause against the appellee seeking the cancellation of a certain mortgage executed to the respondent, on certain real estate situated in Decatur, Ala., with a prayer also for general relief.

Heard before Hon. O. S. Lewis. Bill by M. T. McLain against the Greil Bros. Company and others, to cancel certain notes and mortgages. From an order overruling demurrer respondents appeal.

Heard before Hon. John S. Curtis. John Barnett, as executor, propounded for probate the last will and testament of Lizzie Freeman, deceased, with contest by A. Jack Freeman. From a judgment denying probate, the executor appeals.

Heard before Hon. Saffold Berney. Assumpsit by John Craft against the Mobile Fish & Oyster Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. E. Blackwood. Action under the Homicide Act (Code 1907, § 2486), by Mattie V. Sims, as administratrix, for damages for the death of her intestate. Judgment for defendant, and plaintiff appeals. The pleadings and the facts sufficiently appear.

Heard before Hon. W. W. Pearson. Petition, on the relation of Hill J. Foshee and others, for quo warranto to inquire into and determine the legality of the incorporation of the community of Maplesville, Ala., directed to W. E. Kay and others, as officers of said municipality. From a judgment for respondents relators appeal.

Heard before Hon. Gaston Gunter. The Railroad Commission of Alabama sought by mandamus to compel the Louisville & Nashville Railroad Company, and the Central of Georgia Railroad Company tó make a physical connection between their tracks at Samson, Alabama, in pursuance of an order made by the Railroad Commission. Demurrer was sustained to the petition, and the Commission appeals.

Heard before Hon. Lum DUKE. Ejectment by John P. Reynolds and others, against Sarah Trawick and others. On account of rulings on the evidence, and judgment of non suit, plaintiff appeals.

Heard before Hon. H. A. Pearce. Action by J. C. Turner against the Atlanta & St. Andrews Bay Ry. Co., for damages for destroying property by fire. Judgment for defendant and plaintiff appeals. The evidence tended to show for the plaintiff that its property was situated on or near the line of the railroad, and was burned about noon of May 30, 1914. The first caught by the side of the carriage where the log ramp ran out to the railroad.

Appeal'from Lawrence Probate Court. Heard before Hon. J. C. Kumpe. Action by Lizzie Watson against Mary Cross and others for a sale of land for division among tenants in common. From a decree for the plaintiff, the named defendant appeals.

Heard before Hon. D. W. Speake. Action of assumpsit by Sallie Winter, as administratrix, against Ignatius Poliak, revived against Helen Poliak, as executrix. From a judgment for plaintiff, defendant appeals. For a statement of the case and the facts, see former appeals set out in the opinion.

<p>Appeal from Shelby County Court.</p> <p>Heard before Hon. E. S. Lyman.</p> <p>Ejectment by J. H. Wilder against H. L. Campbell and others. Judgment for defendants and plaintiff appeals.</p>

<p>Murder.</p> <p>1. Evidence; Statement of Pacts. — Evidence that deceased “was killed in another county” was admissible as a statement of fact.</p> <p>2. Trial; Reception of Evidence; Objection. — Timely objection to evidence is not taken unless the objection is interposed to the question before it is answered.</p> <p>3. Witnesses; Impeachment. — It is not competent on cross examination to ask a state’s witness whether he had also been accused of the crime for which defendant was on trial.</p> <p>4. Evidence; Motive. — The uncommunicated intention or motive of a witness is inadmissible as a general rule on direct examination.</p> <p>5. Same; Cross Examination. — A witness may be cross examined as to the motives and reasons actuating his movements as described on direct, examination.</p> <p>6. Same.. — It is not error to exclude cross examination as to a witness’s reasons or motive in doing certain things not mentioned on his direct examination.</p> <p>7. Trial; Reception of Evidence; Objection; Sufficiency. — Where the testimony was not obviously immaterial, a general objection thereto may be overruled without error.</p> <p>8. Homicide; Evidence. — The fact of deceased’s separation from his wife, and defendant’s frequent association with her is admissible as bearing upon the relation existing between the parties, and as furnishing a motive for the crime.</p> <p>9. Same. — The fact that accused was seen near the scene of the murder on the night of the crime was amissible.</p> <p>10. Same. — Testimony that defendant appeared excited some twenty or thirty minutes after the murder is admissible.</p> <p>11. Witnesses; Cross Examination. — It was competent to ask a witness for defendant on cross examination whether or not he knew that his father-in-law had been arrested and charged with the murder in question.</p> <p>12. Same; Bias. — The friendship of a witness for defendant may be developed on cross examination.</p> <p>13. Evidence; Character. — Defendant may not prove his good character by testimony showing that he had never been previously arrested.</p> <p>14. Evidence; Confessions; Predicate. — Where the language of the confession, and the surrounding circumstances show that it was not influenced by fear or hope, no express predicate need be laid for its admission.</p> <p>15. Witnesses; Bias.. — Where a witness had exhibited his friendship for defendant, it is competent for defendant to show that he had been equally friendly with deceased, and the refusal to permit same was reversible error.</p>

Heard before Hon. H. A. Pearce. Dan Carmichael was convicted of murder, and he appeals. The facts and objections to evidence sufficiently appear from the opinion. The following charges were refused to defendant: (1) The court charges the jury that all the necessary and material allegations of the indictment should be proven beyond a reasonable doubt, and, if the state has failed to do this, then defendant should not be convicted.

Heard before Hon. Henry B. Foster. Ella Smith was convicted of murder, and she appeals. Etta McCaney testified that she was the sister of the dead man, husband of defendant, and that the dead man came to her house, drunk, and lay down across the bed, and his wife sat by him and took a nickel and a knife out of his pocket.

. Heard before Hon. W. W. Whiteside. Application by the State, on the relation of W. L. Martin, Attorney General, against the Louisville & Nashville Railroad Company for an injunction to restrain certain rate changes. From a decree denying the injunction, but reinstating it, pending appeal, petitioner appeals, and respondent files cross-appeal.

Heard before Hon. W. H. Simpson. Bill by G. B-. Caldwell and others against D. K. Caldwell and others, for an accounting and settlement, and the fixing of liens. From the decree entered respondents appeal.

Heard before Hon. James E. Horton, Jr. Bill by J. M. Bright against John Mack and others, to foreclose a mortgage, and for a decree against sureties. From a decree for respondent complainant appeals.

Heard before Hon. Thomas W. Wert. Bill by Mrs. A. L. Brindley against C. V. Brindley to enforce a trust in land. From a decree overruling demurrers to the bill respondent appeals.

Heard before Hon. H. A. Sharpe. Bill by State, ex rel. Charles H. Hamilton against L. W. Scoville, to abate a liquor nuisance. Decree for respondent, and complainant appeals.

Heard before Hon. J. J. Curtis. Action by Lee Hyche against the Barney Coal Company for damages for personal injuries. Judgment for plaintiff and defendant appeals.

<p>Appeal from Tuscaloosa County Court.</p> <p>Heard before Hon. H. B. Foster.</p> <p>Action by W. C. Hinton against J. T. Stokes. A judgment for defendant was set aside, and a new trial granted, from which order defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts April 18, 1911.</p> <p>The suit began in the justice court, where there was judgment for plaintiff, and defendant brought an appeal, and upon the trial in the city court certain evidence as to the date when the house was standing and the timbers thereof had not been removed was offered by defendant contrary to and in addition to evidence offered by him in the justice trial, and this fact is made a basis by plaintiff for the motion for new trial, based on surprise, and on the further fact that had be known that such evidence would be offered, he was not then apprised of the fact that it could have been disproven by three disinterested witnesses, which fact has come to his knowledge since such trial. After hearing the evidence the court entered the following judgment:</p> <p>“Judgment in this cause having been rendered in favor of defendant, and the plaintiff having on * * * filed in this court his motion for new trial, and the same having been duly spread upon the motion docket of this court and said cause now on this * * * coming on for hearing upon said motion for new trial, and the court having now duly considered said motion, and the affidavits filed in connection therewith and evidence thereon, * * * it is the opinion of the court that said motion is well taken and should be granted. It is therefore the order and the judgment of the court that plaintiff’s said motion to set aside the verdict and in arrest of judgment, and to set the judgment aside, and to grant him a new trial in this cause, be and the same is hereby granted; and it is further the order and the judgment of the court that said verdict be set aside, and also the said judgment be set aside and this cause be restored to the odcket for a new trial.”</p> <p>This judgment appears of record and not as a part of the bill of exceptions.</p>

<p>Injury to Servant.</p> <p>1. Master and Servant; Injury to Servant; Complaint. — A complaint under the common law alleging that the injury sustained by plaintiff was the proximate result of the act of a fellow servant while in the discharge of his 'duty connected with his employment, which he was incompetent to perform, and which incompetency was known to the master, was sufficient as against the demurrer interposed.</p> <p>2. Same. — Under the provisions of § 5340, Code 1907, in an action for perrsonal injury caused by a fellow servant, a defect in the complaint in failing to allege that plaintiff was rightfully where he was when injured, could not be taken advantage of on demurrer which did not point out the defects.</p> <p>3. Appeal and Error; Review; Non Suit. — Where four demurrers to the complaint were sustained, and the fifth ground sustained, which caused plaintiff to take a non suit, a review of the action of the trial court is authorized under § 3017, Code 1907, although the non suit is not taken until after the trial court declined to let plaintiff further amend his complaint.</p>

Heard before Hon. W. W. Pearson. Action by Ezekiel Harris against the Montgomery Light & Traction Company, for damages for personal injuries. Judgment for plaintiff and defendant appeals.

Heard before Hon. James E. Horton, Jr. Bill by Henry Betts and another against Mary Lovell and others, to set aside a will, and to annul its probate. From a decree for respondents, complainants appeal.

Heard before Hon. H. A. Sharpe. Action by Mrs. H. V. Middleton against the Western Union Telegraph Company, for damages for failure to deliver a message. Judgment for defendant and plaintiff appeals.

Heard before Hon. John C. Pugh. Petition by Mrs. Willean Murphy against N. J. Hanson and others for the custody of an infant. Judgment for respondents and petitioner appeals. Transferred from Court of Appeals.

Heard before Hon. Robert C. Brickell. Action by W. A. Plunkett against E. G. Dendy and others, to enforce a landlord’s lien for rent, in which sub-tenants were joined with the chief tenant. From a judgment of discontinuance granted because of the striking of the sub-tenant, plaintiff appeals. Transferred from Court of Appeals.

, Heard before Hon. J. W. Mabry. Assumpsit by Thomas H. Long against Robert Whit. Judgment for defendant and plaintiff appeals. Transferred from Court of Appeals.

<p>Appeal from Etowah Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p> <p>Bill by Mrs. Ira Shaddix, as administratrix, against Mrs. Tina Y. Galloway and another, to set aside conveyances as fraudulent. From a decree overruling demurrers to the bill respondents appeal.</p> <p>The bill was filed by appellee as the administratrix of the estate of William Perkins, deceased. It averred that the death of her intestate was caused by the negligence of the appellant Charles V. Galloway on July 4, 1913, and that on September 25, 1913, appellee as administratrix, brought her suit in the city court of Gadsden, claiming damages for the negligent killing of her intestate against Charles V. Galloway, and that on December 4,1915, she recovered judgment against him in the sum of $2,000; that on July 24, 25, and 30, 1913, Charles V. Galloway executed three separate conveyances of real estate to the appellant Tina V. Galloway, his wife, conveying substantially all of his property, which deeds were filed for record on July 30, 1913, and that said Charles V. Galloway made said deeds without consideration, and after appellee’s cause of action had accrued, and were therefore void as to appellee; and that said Galloway executed fraudulently said deeds to his wife, for the purpose of hindering, delaying, or defrauding appellee in the enforcement of her judgment.</p>

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. H. P. Heflin.</p> <p>Walter Fogg was convicted of robbery, and he appeals.</p> <p>The indictment was in Code form, marked a true bill, and signed by the foreman, and had the certificate of the clerk of the court on it, as it was filed in open court February 24, 1915, and was-properly signed by the solicitor.</p>

Heard before Hon. E. S. .Lyman. Detinue by W. H. Sturdivant against the Mt. Dixie Sanitarium, Land & Investment Company and others. Judgment for defendants, and plaintiff appeals.

Heard before Hon. Thomas W. Coleman, Jr. Bill by Henry Walker against J. W. Broughton, to cancel deed and note and for general relief. From a decree overruling demurrers to the bill, respondent appeals.

<p>Certiorari to Court of Appeals.</p> <p>Ed Sherrod was convicted of the offense of using abusive language, and from a conviction in the city court appealed to the Court of Appeals, which affirmed the judgment of the lower court. See Sherrod, v. State, 14 Ala. App. 57, 71 South. 76. Whereupon he seeks certiorari to review the judgment and decision of the Court of Appeads.</p>

<p>Appeal from Morgan Chancery Court.</p> <p>Heard before Hon. James E. Horton, Jr.</p> <p>Bill by Frank Webster against M. C. Camody and others, to enjoin and restrain respondents Erwin & Stout from disposing of and transferring a note, or from surrendering it to respondent Camody, or any one else except complainant, and to compel respondents Camody and Quarles, to specially perform said agreement by endorsing and delivering note to complainant. From a decree overruling demurrers to the bill respondents appeal.</p>

Heard before Hon. Saffold Berney. Petition by W. H. Holcombe in the name of the State for mandamus to issue to George E. Stone as treasurer requiring him to number and register a warrant in the order in which it was presented. From a judgment granting the writ, respondent appeals.

Heard before Hon. A. H. Benners. Bill by Josephine Clements against Frank B. Clements and others, to annul certain conveyances as fraud upon complainant’s right as a judgment creditor of one of defendants. From a decree dismissing the bill complainants appeal.

<p>Bill to Annul Will.</p> <p>1. Wills; Annulling; Fraud; Evidence. — Where the bill was to annul a will, filed under § 6207, Code 1907, evidence that testatrix had long had a fixed purpose to will her property to the contestee, her step-son, on account of his kindness to her, as shown by a deed to him of her property; that he was not present at the execution of the will; that his participation in the preparation of the will was mainly referable to testatrix’s request for his services, and not showing persuasion or argument by him, was sufficient to support a decree for respondent.</p> <p>2. Same; Confidential Relations; Burden of Proof. — One attacking a will for fraud and undue influence does not shift the burden of proof to the proponent of the will by merely showing confidential relations between the beneficiary and testatrix.</p> <p>3. Same. — Where, in addition to confidential relations between beneficiary and testatrix, circumstances of suspicion are shown, such as that the beneficiary aided in the preparation or procurement of the will, the burden shifts to proponent to show that the instrument was not superinduced by undue influence.</p>

<p>Murder.</p> <p>1. Homicide; Malice; Presumption. — Malice is presumed from the use of a deadly weapon unless the circumstances surrounding the killing indicate otherwise.</p> <p>2. Same; Nature and Elements. — Whenever malice is shown and not rebutted there cannot be a conviction for any degree of homicide less than murder.</p> <p>3. Same; Instructions. — Where defendant shot deceased, and there was nothing to suggest a lack of malice, the court properly instructed the jury to find defendant guilty of murder if they believed the evidence beyond a reasonable doubt.</p> <p>4. Same; Evidence. — Testimony that defendant’s wife told him the morning before the killing that deceased had behaved improperrly towards defendant’s niece, and that a brother of deceased had assaulted her, was inadmissible because too remote.</p> <p>5. Same; Instructions. — The failure of the court to sufficiently define murder in the second degere cannot be made the basis of error where no objection is interposed or exception reserved.</p> <p>(Mayfield, J., dissents.)</p>

Heard before Hon. S. L. BREWER. Assumpsit action by the Roanoke Banking Company against J. H. Jackson and A. J. Langley. Judgment for plaintiff and defendant, Jackson, appeals.

Heard before Hon. Thomas H. Smith. Bill by Annie E. Letfwich against the Vinegar Bend Lumber Company to cancel a mortgage because given to secure the husband’s debt. From a decree for complainant respondent appeals.

Heard before Hon. William G. McCorvey. Mandamus proceedings by the State, on the relation of John M. Coxwell, against D. D. Mims, as County Treasurer. From a judgment sustaining a demurrer to the petition, the relator appeals.

Heard before Hon. Gaston Gunter. Action by John Harris against the Montgomery Light & Traction Company. There was judgment for defendant, which judgment was, on motion of plaintiff, set aside, and a new trial ordered, and defendant appeals. Among the interrogatories propounded was one requiring defendant to give the names of any and all passengers, with their street addresses, that were on the car at the time of the accident to the child.

Heard before Hon. C. W. Ferguson. Action by Andrew Scott against Wadsworth Red Ash Coal Company for damages for injuries suffered while in its employment. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals.

Heard before Hon. W. W. Pearson. Action by Tom Mays against the Western Railway of Alabama, for injuries received while in its employment. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Act of April 18,1911.

Heard before Hon. E. S. Lyman. Mandamus by Farson, Son & Co. against the Board of Revenue of Shelby County. From a judgment granting the writ, the Board appeals. Application by the appellees for mandamus to compel the board of revenue of Shelby county to levy a special county tax of one-fourth of 1 per cent., or a sufficient amount of said tax, to raise money for payment of certain warrants past due in 1916, and to provide for the payment of said warrants falling due in 1917.

<p>Mandamus,.</p> <p>1. County; Claims; Special Fund; Mandamus. — Mandamus will lie to compel a county treasurer to pay a special claim under a special fund, even in certain cases where an action would also lie against him for a failure to make such payment.</p> <p>2. Mandamus; Legal Remedy; Payment of Claims. — Mandamus does not lie to compel a county treasurer to pay a certain class of claims, even though he has the funds in hand, and ought to pay, where the statutes have provided a summary and adequate remedy against the county treasurer, and his bondsmen.</p> <p>3. Same; Insufficient Funds. — Mandamus to compel a county treasurer to pay county warrants will not issue unless he has funds on hand liable for their payment, and which he ought to pay thereon, although he may have wrongfully paid out on other demands funds which he should have applied exclusively to the claims of the party seeking the mandamus.</p> <p>4. Same. — Mandamus will not lie to compel a county treasurer, as such, to pay out of his individual funds, or out of the general fund of the county, a claim against a special fund, and not the general fund.</p> <p>5. Same. — Where the county governing board for the construction of a court house issued warrants maturing in annual installments, and agreed to levy annually for their payment, a special tax under subdivision A, § 215, Constitution 1901, and under statutes in aid thereof, and later, there was a change in the governing body which, instead of making the annual special levy, levied a special tax for the purpose of improving public roads, mandamus will not lie against the county treasurer to compel him to pay out of the county money which was collected for the road fund, although a levy could have been made to pay the warrant held by petitioner.</p> <p>6. Same; Petition; Conclusion. — An allegation in a petition for mandamus that a county treasurer had breached his official duty in failing and refusing to pay petitioners, on their warrants, the funds which were collected for a different purpose, not alleging facts showing breach of duty, was a pure conclusion of the pleader.</p>

Heard before Hon. Lum Duke. Petition by the State, on the relation of the Attorney General, for mandamus to compel the Central of Georgia Railway Company to transport certain liquors within the state. From a decree granting the writ, respondent appeals.

Heard before Hon. Lum Duke. Action by C. J. Sudduth against the Central of Georgia Railway Company for trespass. Judgment for defendant, and plaintiff appeals.

Heard before Hon. Thomas H. Smith. Bill by Perry P. Pepper against Alex G. Horn and another, for specific performance. Decree sustaining demurrer to the amended bill and complainant appeals.

<p>Injury to Servant.</p> <p>1. Master and Servant; Injury to Servant;. Contributory Negligence.— Where the action was under subdivisions 2 and 5, § 3910, Code 1907, and the negligence alleged was that of the superintendent or person in charge of the car upon the railway, and plaintiff’s own negligence, concurring with that alleged, proximately contributed to the .injuries complained of, plaintiff could not recover without showing wantonness or willful injury.</p> <p>2. Same. — Where a railroad employee knew it was dangerous to ride on the car without holding on, when it was in motion, and was warned to- hold on, but failed to do so, and he fell off when the car was stopped, or its speed slackened or reduced by braking, he was guilty of contributory negligence barring recovery.</p>

Heard.before Hon. Lum Duke. Assumpsit by the Muscogee Bank against L. A. Whatley. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. The complaint declared simply on a promissory note. The pleas set up failure and want of consideration, and that the note was secured under false and fraudulent pretenses, the facts being therein set out.

Heard before Hon. Saffold Berney. Assumpsit by the Naylor Lumber Company against the American Tie & Timber Company. Judgment for defendant, and plaintiff appeals. Count 14 sufficiently appears. Count 15 sets out the contract, and alleges a compliance therewith from February 19, 1913, until March 19, 1913, at the date of the repudiation thereof.

Heard before Hon. B. M. Miller. Tax proceedings by the State of Alabama against the Roden Coal Company. Judgment for defendant, and plaintiff appeals. By the proceedings in this case the state seeks to tax the leasehold interest in the mineral rights in certain lands in Bibb county, Ala., leased by the defendant from the Alabama Mineral Land Company.

<p>Trover.</p> <p>1. Charge of Court; Directing Verdict. — The defendant is not entitled to have a verdict directed unless there is no evidence tending to establish plaintiff’s case, since the sufficiency of the evidence is not for the court where there are conflicting tendencies, but should be submitted to the jury.</p> <p>2. Trover and Conversion. — Under the evidence in this case, it was for the jury to determine whether plaintiff should recover for the fifty bushels of corn alleged to have been converted. .</p>

. Certiorari to Court of Appeals. Application by the State of Alabama for certiorari to the Court of Appeals to review and revise the judgment of said court, reversing and remanding the appeal of Hugh Brooms against the State, 15 Ala. App. 72 South. 691.

<p>Detinue.</p> <p>1. Mortgages; Record; Mistake in Name. — A mistake in the middle initial of a mortgagor in a properly recorded chattel mortgage, does not, under the statute, impute constructive notice to a subsequent purchaser or mortgagee.</p> <p>2. Name; Record; Jury Question, — On the evidence in this case it was a question for the jury whether the true initials of the mortgagor was J. A. or J. F. Johnson.</p>

Heard before Hon. H. A. Pearce. The Planters Warehouse & Gin Company sued the Terminal Oil Mill Company, a foreign corporation, and had attachment levied upon certain goods alleged to belong to the foreign corporation. After proceedings had as indicated in the opinion, there was judgment for plaintiff, and defendant appeals.

<p>Assumpsit.</p> <p>1. Assumpsit; Evidence; Ownership of Accounts. — Where plaintiff failed to show any indebtedness to herself, or as to how or why she should recover a judgment, or recover on an indebtedness due another, she could not recover, notwithstanding she proved an indebtedness due from defendant to another.</p> <p>2. Appeal and Error; Province of Court. — Under § 17, Acts 1907, p. 570, where the appeal is from the Law and Equity Court of Mobile, on a ease tried by the court without a jury, the appellate court must render such judgment as sho.uld have been rendered below, if it finds error, or may reverse and remand for further proceedings.</p>

Heard before Hon. H. B. Foster. Bill by J. W. Robertson and others against K. E. Robertson, to ascertain the extent of interest in land. Decree for complainant and respondent appeals.

Heard before Hon. D. W. Speake. Action by R. I. Burke, as administrator, against J. C. Car-land & Co. and another. Judgment for plaintiff, and defendants appeal.

Heard before Hon. A. H. BENNERS. Bill by Mrs. I. E. Boyett against William Hahn and others, to declare complainant the owner of one-half the capital stock of the Plainview Land Company, and for a sale of the assets of said company for a division. From a decree sustaining demurrer, complainant appeals. The original bill alleges: (1) The parties.

<p>Assumpsit.</p> <p>1. Contract; Mutuality. — The minds of two or more parties must meet to constitute a valid contract.</p> <p>2. Guaranty; Offer and Acceptance. — A mere offer of guaranty must be accepted before it becomes binding.</p> <p>3. Same. — Where there is a request by the guarantee to the guarantor for guaranty, and the guaranty is made in response to such request, the contract becomes complete.</p> <p>4. Same; Bi-Lateral Contract. — If a guaranty is bi-lateral and completely executed by both parties, and recites on its face a consideration, though nominal, no acceptance is required as it is a complete contract.</p> <p>5. Same. — If a guaranty is absolute in form and expresses a consideration, no acceptance is necessary.</p> <p>6. Same. — A mere proposed guaranty, such as a letter of credit, generally requires notice of acceptance to make it binding on the guarantor.</p> <p>7. Same; Waiver. — The right to notice of acceptance of a guaranty may be waived by the form or condition of the guaranty, or waiver may be im- ■ plied by the terms of the instrument.</p> <p>8. Same; Mode. — If a guarantor expressly or impliedly intimates a particular mode of acceptance, of his proffered guaranty, it is necessary only for the other party to follow the indicated method of acceptance.</p> <p>9. Same. — If the person offering the guaranty expressly or impliedly intimates in his offer that it will be sufficient to act upon the proposal without communicating the acceptance of it to himself, the performance of the condition is sufficient acceptance without notification.</p> <p>10. Same; Notice to Guarantor. — Where a letter requested a publishing concern to ship to the customer such books as he might order on credit, and contained an express waiver of notice to the guarantor of any and all transactions with and extensions of credit to the customer, and pursuant thereto sale and delivery of the books were made to the customer, the guaranty was binding.</p>

<p>Ejectment..</p> <p>1. Appeal and Error; Dismissal; Filing Transcript. — Where the appeal was taken within a year after the judgment, and continuances were twice granted by the Supreme'Court, and the case was not submitted until a year and a half after the appeal, at which time the transcript was filed, the case will not be dismissed for undue delay in filing the transcript, the appellees not having seasonably invoked such action.</p> <p>2. Trial; Record; Directing Verdict. — Where the clerk noted the fact in his certificate to the transcript that three matters of documentary evidence could not be found by him, and were consequently omitted from the bill of exceptions, this court could not review the action of the trial court in refusing the general affirmative charge for the appellant, notwithstanding the bill of exceptions recited that it contained all or substantially all of said testimony,</p> <p>3. Limitation of Action; Disability. — Under § 4846, Code 1907, in ejectment by heirs against one claiming by adverse possession, the heirs must show, in order to suspend the running of such adverse possession by the statute, both that they had title as heirs at the time the asserted adverse possession began, and that some of them were minors at the time.</p> <p>4. Same; Burden of Proof. — The burden of showing that one is within, and therefore entitled to the benefit of the exception of such statute, is upon one claiming the benefit.</p> <p>5. Ejectment; Instructions. — Where the action was ejectment against adverse possessors, plaintiff was not entitled to an unqualified instruction that the burden of proving title by adverse possession was on defendant, where there was no evidence of alleged facts suspending the operation of the adverse possession because of plaintiff’s minority under § 4846, Code 1907.</p> <p>6. Same; Evidence. — In an action of ejectment by heirs against an adverse possessor, it was competent for plaintiff to show declarations made by one of defendant’s grantors inconsistent with any claim of right by such grantor hostile to the title of the heirs of plaintiff ancestors.</p>

<p>Appeal from Mobile Law and Equity Court.</p> <p>Heard before Hon. Saffold Berney.</p> <p>Assumpsit by E. T. Barry against Page & Jones. Judgment for plaintiffs and defendant appeals.</p> <p>Transferred from Court of Appeals.</p>

<p>Mandamus.</p> <p>1. Mandamus; Petitioners; Joinder. — Where the proceeding was by parents against a teacher and the members of the board of education, to compel respondent to admit the parents’ children to a public school without the payment of a fee of $1 a month for each pupil, the state having an interest in the education of the children, and each of the parents having alike special and peculiar interests in having the regulation exacting the fee set aside and annulled, there was no tenable objection to the joinder of the parents as petitioners for mandamus.</p> <p>2. " Schools and School District; Charges; Authority of Teacher. — Where the action was mandamus to compel the teacher to receive children in school, claimed to be public, without the exaction of a monthly fee therefor, it was immaterial that the teacher, in demanding the fee, and excluding the children for the non payment thereof, was acting by authority of the board of education of the county, or the local board of the town, since the duty of the teacher to conduct the school according to the law and the statute, could be enforced by mandamus, whether one board or the other had the right to control the school.</p>

Heard before Hon. C. W. Ferguson. Action by Louis Negron against the Southern Railway Company for damages for killing a mule. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals.

<p>Appeal from Mobile Chancery Court.</p> <p>Heard before Hon. Norvelle R. Leigh, Special Judge.</p> <p>Bill by Essimena Hanlon against Claire de Riviere Darling and others for partition. Judgment for complainants and respondents appeal.</p>

Heard before Hon. John C. Pugh. Trover and assumpsit by Henry Mathias against J. H. How-ton. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. C. B. Smith.</p> <p>Action by Jesse Vernon, pro ami, against the Birmingham Railway, Light & Power Company for damages for personal injury. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449.</p> <p>The complaint contained two counts, one in simple negligence, and one for wanton injury. The facts alleged are that plaintiff was riding in a wagon along the public highway on a public street in the city of Birmingham where defendant maintained street car tracks on grade and embedded in the street, and that while so riding a car operated by defendant collided with the wagon, and caused the injuries set out in the complaint. The facts sufficiently appear. Charge 11 refused to defendant is as follows: If you believe from the evidence that defendant’s motorman acted as an ordinarily reasonable person would have acted under similar circumstances, it would be your duty to return a verdict for defendant.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. H. A. Sharpe.</p> <p>Action by J. Burger and others against the Peerless Lumber & Manufacturing Company, for damages for trespass, and injury to goods. Judgment for defendant and plaintiffs appeal.</p> <p>Transferred from Court of Appeals.</p>

Heard before Hon. B. M. Miller. Action by Mrs. L. C. Koger against the Roden Coal Company, for damages for the death of her intestate. Judgment for defendant and plaintiff appeals.

Heard before Hon. J. B. EVANS. Action by W. L. Vaughan as administrator against the Selma Street & Suburban Railway, for damages for the death of his intestate. Judgment for plaintiff and defendant appeals.

<p>Failure to Deliver Telegram.</p> <p>1. Telegraphs and Telephones; Delivery of Message; Place. — When a telegraph company accepts a message for delivery at a designated place, which is unincorporated, it is ordinarily a question of fact for the jury whether or not the sendee’s locus was in fact comprehended within the designated place by the common understanding of the people.</p> <p>2. Same.. — Where the sendee’s locus is several miles from the place to which the message is addressed, the telegraph company is under no legal duty to deliver the message at such locus.</p>

Heard before Hon. W. R. Chapman. Bill by J. B. Johnston against Betty Josey and others for partition of land. Prom a decree for complainant the named respondent appeals. Bill by appellee, against appellant and others, seeking the sale of a certain 80 acres of land described therein, for division among the parties to the suit as tenants in common.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Action by C. A. Terry and others against J. M. Rich for breach of covenant of warranty. Judgment for defendant on demurrer, and plaintiffs appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

Heard before Hon. R. C. Brickell. Action by Mrs. Agnes Bloom, as administratrix, against the city of Cullman for damages for the death of her intestate caused by an electric current operated by the city. Judgment for defendant and plaintiff appeals.

Heard before Hon. H. A. Pearce. Action by S. Horseman against the city-of Dothan for damage arising from improvements of the street and sidewalk abutting his property. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals.

<p>Appeal from Bullock Probate Court.</p> <p>Heard before Hon. J. T. Norman.</p> <p>Petition by Oscar Johnson and others, for the probate of the will of Mary A. D. Reynolds, with contest by W. T. O’Neill and others. From a decree admitting the will to probate contestants appeal.</p>

Heard before Hon. T. L. Sowell. Action by the A. L. Arundel Company against the Manchester Sawmills Company for the price of goods sold. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals. The action is on the common count for the price of merchandise and two special counts for breach of a contract by which defendant purchased of plaintiff 55 gallons of “Belt Life” at $2.50 per gallon.

Heard before Hon. Saffold Berney. Assumpsit by D. A. Wilkins against Robert Windham and others. There was judgment nil dicit for plaintiff, which on motion and affidavit of defendant, was set aside and a new trial ordered, and plaintiff appeals. Transferred from the Court of Appeals.

Heard before Hon. W. W. Pearson. Action by Hobson Abernathy, by his next friend, against the Louisville & Nashville Railroad Company and others, for damages for personal injury. Judgment for plaintiff, and defendant named appeals.

Heard before Hon. ,E. C. CROW. Suit by D. S. Lacy against the Louisville & Nashville Railroad' Company. There was judgment for plaintiff, which was set-aside on defendant’s motion, and plaintiff appeals. Transferred', from Court of Appeals under Acts 1911, p. 449, § 6.

Heard before Hon. E. C. CROW. Action by Mrs. J. F. McHenry against the Woodmen of the World upon a fraternal benefit certificate. Judgment for plaintiff and defendant appeals.

Heard before Hon. Bernard Harwood. Assumpsit by J. B. Cobbs against M. D. Clearman. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals.

<p>Appeal from Marshall Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Action by T. R. Ratcliff against W. W. Wilson in detinue for an undivided half interest in one bale of cotton, and the seed therefrom, and an undivided half interest in 600 pounds of seed cotton. The court permitted an amendment by allowing plaintiff to add a count in trover for the conversion of said cotton. Judgment for plaintiff and defendant appeals.</p> <p>Transferred from the Court of Appeals.</p>

Heard before Hon. W. W. Haralson. Action by L. J. Cobb, Register in Chancery, for the use of R. L. Formby, against G. F. Morrison and others, for damages for the breach of a supersedeas bond. Judgment for defendants, and plaintiff appeals.

Heard before Hon. John H. Miller. Suit by Mrs. Harry Muller against the City of Birmingham. From judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. H. A. Sharpe.</p> <p>Ejectment by the Woodward Iron Company against Louis Perolio and others. Judgment for plaintiffs and defendant appeals.</p>

Heard before Hon. Thomas W. Wert, Jr. Ejectment by the Anniston Banking & Loan Company against Miller B. Green. From a judgment for defendant, plaintiff appeals.

Original petition in the Supreme Court. Quo Warranto by the state on the relation of the Attorney General, addressed to the Honorable Thomas W. Wert, Judge of the Morgan Law and Equity Court, requiring him to show by what authority he exercised the powers and performed the functions of such judge, after November 10, 1916, and prior to the first Monday after the second Tuesday in January, 1917.

<p>Assumpsit.</p> <p>1. Bill of Exceptions; Filing; Time; Computation. — Considered in the light of the provisions of § 11, Code 1907, a bill of exceptions presented to the trial judge on Monday the 91st day after judgment was entered, was filed within the time provided by § 3019, Code 1907, allowing 90 days for the filing of the bill of exceptions.</p> <p>2. Appeal and Error; Record; Conclusiveness. — Where the judgment entry recites that issue was joined “on the general issue in short by consent,” the recital is conclusive although the record shows special pleas setting up defenses not available under the general issue.</p> <p>3. Bills and Notes; Action; Issues.. — Where the action was by an endorsee of the note, and the ease was tried on the general issue only, its effect being pierely to deny the execution or assignment of the note in suit, as to which there was no dispute, the court erred in directing a verdict for defendant, although irrelevant evidence was admitted, which would have tended to support special defenses.</p>

Heard before Hon. John. C. Pugh. Action by Mrs. Sol Shugarman against R. H. Carter and others, for damages for injuries suffered in an automobile accident. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals.

Heard before Hon. W. R. Chapman. Bill by Pinkie E. Rice and others against the Henderson-Boyd Lumber Company and others. From a decree for respondents, complainants appeal. The original bill was filed by Pinkie E. Rice, widow of William S. Rice, deceased, and by his heirs at law, with the exception of Mattie Elam and John Rice, heirs who are made parties respondent with the Henderson-Boyd Lumber Company, a corporation.

Heard before Hon. H. A. Sharpe. Action by Logwood U. Goin against the United States Health & Accident Company .upon a policy. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6.

Heard before Hon. J. J. CURTIS. . W. Worthington was convicted in the recorder’s court of the city of Jasper of the violation of an ordinance of said city, and appeals to the circuit court, where he was again convicted. From this latter judgment he appeals. Transferred from Court of Appeals.

<p>Appeal from Tuscaloosa County Court.</p> <p>Heard before Hon. H. B. Foster.</p> <p>Ejectment by the city of Tuscaloosa against James Hughes. Judgment for plaintiff and defendant appeals.</p>

Heard before Hon. A. E. Gamble. Assumpsit by H. Williams against T. W. Shows. Judgment for defendant and plaintiff appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449. Count A, together with the facts, will be found reported in 187 Ala. 132, 65 South. 839.

<p>Assumpsit.</p> <p>Brokers; Performance; Time Limit. — Where a broker’s commission depended on his closing the sale within 15 days, and, although the broker secured a purchaser, the sale was not completed within such time because of inability of the abstractor to complete the abstract, and when the owner learned who the prospective purchaser was he thereafter refused to sell to him, the broker was not entitled to his commission, although for a time after the expiration of the time limit, the parties continued uninterruptedly to negotiate just as if the contract was still in force.</p>

Heard before Hon. S. L. Brewer. Action by Edwyna Turrentine against the Western Railway of Alabama for damages for injuries while a passenger. Judgment for plaintiff, and defendant appeals.

Heard before Hon. ThoImas H. Smith. Bill by V. Silvio against Georgiana Venturi as administratrix,, to enforce an equitable assignment of a bank deposit. Decree for complainant and respondent appeals.

Heard before Hon. Thos. W. Coleman, Jr. Bill of intervention in the nature of a cross bill filed by R. B. Blake in an equity case in which the Anniston City National Bank and others were litigating as to whether or not a chattel mortgage should be foreclosed, the mortgage having originally belonged to the intervenor. From a decree for respondents, the intervenor appeals.

Heard before Hon. O. J. Semmes. James Pippin was convicted of murder in the second degree, and he appeals. Defendant was charged with killing Charlie Williams. After being examined as a witness for the state, Charlie Tipton was asked, on cross-examination, if he was not then serving sentence on the county road for selling cocaine. The state objected, and the court sustained the objection.

Heard before Hon. Edward J. Gilder. Mandamus by W. F. Herbert against the Demopolis School Board of Education to require said board to admit his child to the school, although said child had not been vaccinated. From a judgment denying the writ relator appeals.

Heard before Hon. S. L. Brewer. Detinue by the Columbus Grocery Company against J. W. Prince and others, to recover certain personal property. From an adverse ruling on the evidence, plaintiff takes non suit with bill of exception. Transferred from Court of Appeals.

Heard before Hon. Saffold Berney. Assumpsit by the Vizard Investment Company against the Mobile Fish & Oyster Company. Judgment for defendant, and plaintiff appeals.

Heard before Hon. Thomas H. Smith. Bill by William O’Neal and others against Frances P. Lovett and others, to redeem land from 'a mortgage foreclosure sale. From a decree for respondents, complainants appeal. Corrected and Hettie O’Neal and others interested therein conveyed certain lands to J. A. B. Lovett for the sum of $450, which the deed recited was paid.

Heard before Hon. Thomas H. Smith. Bill by the Cunningham Hardware Company and others against Mary E. Kimball and others. From decree for complainants, respondents appeal. By the bill, complainants, creditors of the estate of Lee E. Kimball, deceased (parties respondent being Mary E. Kimball, widow of said deceased, and L. R. Kimball, administrator of said estate), seek to subject the proceeds of certain insurance policies on the life of said Lee E. Kimball.

Heard before Hon. H. A. Pearce. Assumpsit by A. E. Walker. as superintendent of banks, against J. B. McCrary Company on a note, to which defendant offered to set off an interest-bearing certificate issued by the insolvent bank. Judgment for defendant and plaintiffs appeals.

Heard before Hon. Thomas H. Smith. Bill by Hattie A. Collins and others, against James F. Compton and others, for an accounting and cancellation. Decree for complainants and respondents appeal.

Heard before Hon. Thomas H. Smith. Bill by L. M. Wilson against S. A. Hobson, to enforce a vendor’s lien upon land. Decree for complaint and respondent appeals.

Heard before Hon. Thomas H. Smith. Bill by Allen Houston, Jr., against Will and Cliff Lee. From a decree overruling respondents’ demurrers to the bill, they appeal. This bill was filed by the appellee against the appellants. Demurrers were interposed thereto, and were by the court overruled. From the decree the respondents prosecute this appeal.

Heard before Hon. Thomas H. Smith. Bill by Joseph M. Lyons against Joseph D. Webster and others, for specific performance, in which certain of the respondents filed a cross bill. From a judgment dismissing the bill and the cross bill, both complainant and cross complainant appeals.

Heard before Hon. O. J. Semmes. Petition for mandamus by Angeline Glass against George E. Stone, as Treasurer of Mobile County. From a judgment denying the writ, petitioner appeals.

Heard before Hon. John H. Miller. Detinue by Robert McCoy against L. F. Prince. Judgment for' plaintiff and defendant appealed to Court of Appeals, which transferred the appeal under section 6, Acts 1911, p. 449, to Supreme Court. It appears from the evidence that Prince and McCoy traded horses, McCoy getting Prince’s mare, and Prince getting McCoy’s mule.

<p>Murder.</p> <p>Charge of Court; Covered by Those Given. — Under General Acts 1915, p. 815, it is not error to refuse requested instructions which are substantially covered either by instructions given by the court ex mero motu, or at the request of the parties.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. A. H. Alston.</p> <p>Assumpsit by the Alabama Fuel & Iron Company against the Alabama Fidelity & Casualty Company. Judgment for defendant and plaintiff appeals.</p>

<p>Ejectment.</p> <p>1. Boundaries; Description. — The rule that a statement of the quantity of land inserted in a deed by way of description must yield to a natural or permanent object called for in the conveyance, applies to the description of an area excepted from an entire tract granted in comprehensive terms.</p> <p>2. Same. — Where the deed excepts. “one and one-half acres off of the southeast corner to a branch,” the exception covers the whole of the corner to the branch, although it contains three and one-half acres.</p>

<p>Assumpsit.</p> <p>1. Evidence; Experts; Qualification. — Whether or not a witness offering to testify as an expert is qualified as an expert, is a matter addressed to the trial judge, and within his sound discretion.</p> <p>2. Same. — Where the evidence disclosed that a witness was an expert accountant of many years experience, the exclusion of his testimony on the ground that he was not qualified as an expert, was not a proper exercise of the court’s discretion.</p> <p>3. Same; Foundation of Opinion. — Where the action was for compensation for auditing books, an expert could testify, from his personal observation and examination of the books and of the audit, that plaintiff’s audit was inaccurate and valueless, although his testimony pointed out only some of the inaccuracies and mistakes, and did not state all the facts upon which he rested his conclusion.</p>

Heard before Hon. R. C. Brickell. Action by Joe Smith, pro ami, against C. C. Yearwood and others, for damages. Judgment for defendants and plaintiffs appeal.

<p>Certiorari.</p> <p>1. Certiorari; Issuance; Authority of Judge of Probate. — Under § 5430, Code 1907, a judge of probate has power and authority to issue statutory certiorari but not common law certiorari.</p> <p>2. Same; Trial. — Although the petition to the judge of probate for a statutory writ of certiorari to remove a cause from the justice court, was insufficient, yet it is the duty of the court to which the cause has been removed, to proceed to a trial de novo without reference to the rulings of the justice of the peace.</p> <p>3. Same; Statutory Writ. — Where the petition averred that after continuing the cause, the justice of the peace, without notice to petitioner rendered judgment against petitioner, depriving him of an opportunity to defend, and the prayer in the petition prayed of the judge of probate a writ to. require such justice to certify in return all the papers, and a transcript of the proceedings to the next term of the circuit court, the order of the judge of probate to the circuit clerk directing him, on condition, to issue the writ of certiorari, the writ issued by the clerk in response' thereto was a statutory and not a common law writ, although the petition contained averments appropriate to a petition for a common law writ.</p>

<p>Appeal from Dale Circuit Court.</p> <p>Heard before Hon. M. Sollie.</p> <p>Assumpsit by the Dowling-Martin Grocery Company against R. E. Dominy. Judgment for plaintiff and defendant appeals.</p> <p>Transferred from Court of Appeals.</p>

Heard before Hon. JAMES E. Horton, Jr. . Bill by V. A. Reynolds against J. A. Cudd to cancel two mortgages. Decree for complainant and responded appeals. For another branch of the litigation see 185 Ala. 80, 70 South. 721.

Heard before Hon. O. S. Lewis. Bill by Zalena Birden against Katie Sims and others to set aside and vacate a decree of the pr'obate court setting off a homestead, and vesting the same absolutely in Katie Douglass, now Katie Sims. From a decree granting the relief prayed, respondents appeal.

<p>Appeal from Etowah Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p>

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

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

<p>Appeal from Bibb Circuit Court.</p> <p>Heard before Hon. B .M. Miller.</p>

<p>Appeal from Shelby County Court.</p> <p>Heard before Hon. E. S. Lyman.</p>