Volume 198 — Alabama Reports

Heard before Hon. A. E. Gamble. Jesse, alias Bud, Nearer, was convicted of murder in the first degree, and sentenced to be hanged, and he appeals. The boy Clements was found dead with the front part of his skull crushed in, and near him was a twisted iron pipe.

<p>Murder.</p> <p>1. Homicide; Evidence. — The evidence examined and held sufficient to sustain a conviction for murder.</p> <p>2. Same; Preparation. — There was no error in permitting the state to introduce evidence tending to show that on the evening preceding the shooting defendant purchased ammunition at a neighboring store.</p> <p>3. Witnesses; Examination; Cross. — Where defendant was prosecuted for murdering his wife, and his contention was that she had abandoned him for another negro, it was competent on cross examination of defendant, to inquire whether or not he had caused their separation by ill treatment.</p>

<p>Murder.</p> <p>1. Appeal and Error; Review; Failure to Instruct. — The partial or total failure of the trial court in its oral charge to instruct relative to the law involved in the trial of a criminal case is not reviewáble; the remedy of defendant being to request special written instructions according to the practice prescribed by § 5362 and § 5364, Code 1907, as amended by General Acts 1915, p. 815.</p> <p>2. Same; Assignment of Error; Criminal Case. — Under § 6264, Code 1907, assignments of error on the record are not required on appeals in criminal cases.</p> <p>3. Homicide; General Charge; Exceptions. — Where the oral charge stated that defendant was guilty of murder in the first degree, or was innocent and entitled to an acquittal, and failed to submit the nature of defendant’s guilt of murder in the second degree, although error, was not reviewable in the absence of an exception, since no change was effected in the established practice relative to the necessity of a seasonable objection and exception to general charges by the amendment made to § 5364, Code 1907, by Acts 1915, p. 815.</p> <p>4. Same. — The fact that the oral charge infracted the provisions of § 7087, Code 1907, did not relieve defendant of the necessity of reserving an exception to the charge.</p> <p>(Mayfield and Thomas, JJ., dissent.)</p>

<p>Murder.</p> <p>1. Homicide; Evidence; Defendant’s Character. — Where the prosecution was for wife murder and the motive asserted was the recovery of proceeds of a life insurance policy, and a desire to be released from the restraint of an uncongenial marriage, testimony of the immoral acts, conduct and association of defendant with other women during the second year preceding the homicide, and up to a short time before the homicide, was admissible.</p> <p>2. Same. — The exclusion of evidence that shortly after the homicide another person had stated that he shot and killed decedent by mistake, intending to shoot defendant, was proper.</p> <p>3. Witnesses; Credibility; Evidence. — Where the employee of the insurer appeared as a witness for the state, and his testimony was without dispute, evidence that insurer of the life of decedent had employed a detective to secure evidence of defendant’s guilt, was excluded without injury; such evidence being admissible only as affecting the credibility of witness.</p> <p>4. Appeal and Error; Harmless Error; Evidence. — The admission in evidence of a letter of defendant to a witness for the state, which tended to show a state of ill will between defendant and the witness, who was greatly concerned in and active for the conviction of defendant, was not prejudicial to defendant.</p> <p>5. Homicide; Evidence. — Where one of the motives attributed to defendant accused of murdering his wife was the desire for release from the restraint of his marriage, the admission of letters of the defendant to another woman to show his infidelity to'his wife, and an immoral propensity and conduct, was not error.</p> <p>6. Same. — Where there was other evidence that the relation of defendant with another woman, was immoral, the admission of evidence of the physical attraction of such woman with whom defendant corresponded, was not erroneous.</p> <p>(Mayfield, J., dissents in part.)</p>

Heard before Hon. A. H. Alston. Mary Lucinda Osborn was convicted of murder in the first degree, and she appeals. The indictment charges the killing of Lula, whose name is to-the grand jury otherwise unknown, by cutting her, or by stabbing her with a knife.

<p>Murder.</p> <p>New Trial; Criminal Case; Review. — The evidence examined and held too meager to support the verdict, and that defendant’s rhotion for new trial should .have been granted.</p> <p>(Thomas, J., dissents.)</p>

<p>Original petition in Supreme Court.</p> <p>Application by Atlantic Coast Line Railway Company for a writ of prohibition directed to the Honorable Leon McCord as judge of the circuit court of Montgomery County.</p>

Heard before Hon. W. W. Whiteside. Bill by Duncan & Sons, a partnership, against H. W. Pearson to restrain him from violating a contract not to sell ice in the city of Alexander City. From an order granting the injunction prayed, respondent appeals.

Heard before Hon. Lum Duke. Bill by Joseph B. Summers and others against Geo. W. Summers and others, for partition of land among tenants in common. From a decree sustaining demurrers to the bill, complainants appeal.

Heard before Hon. O. S. Lewis. Bill by C. E. Hughes as trustee of an insolvent corporation -against E. C. Porter and others to collect an unpaid subscription to stock. From a decree overruling demurrers to the bill respondents appeal.

Heard before Hon. W. R. Chapman. Bill by I. M. Carnley against R. J. Hataway and others to reform a deed. From a decree for complainant, respondents appeal.

Heard before Hon. H. A. Pearce. Action by Aliene Louis Norris against the New England Mutual Life Insurance Company. Judgment for defendant, and plaintiff appeals. Suit by appellant on an insurance policy in the sum of $3,000, on the life of Thomas Watts Norris, in which appellee, widow of the insured, was named beneficiary.

.Appeal from Montgomery City Court. Heard before Hon. Gaston Gunter. Bill by M. Scheuer and others, doing business as Scheuer & Wise, against the New York Life Insurance Company, to pay to orators the true amount due on said policy. Decree for complainants, and respondent appeals.

Heard before Hon. Samuel B. Browne. Assumpsit by E. S. Linch against Mobile County. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear. The following charges were given for plaintiff: (1) An agreement by a county to pay for work and material in warrants of the county is equivalent to an agreement by the county to pay in money.

Heard before Hon. Gaston Gunter. Assumpsit by the Alabama Marble Quarries against the Puffer Manufacturing Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450, § 6. The complaint was on the common counts as to counts 1, 2, and 3.

Heard before Hon. C. W. Ferguson. The Aetna Accident & Liability Company sued the Birmingham Railway, Light & Power Company for damages to an automobile 'in collision with a street car, and recovered a verdict in the sum of $20. It made a motion to set aside the verdict and judgment and to be granted a new trial, on the ground that, if entitled to recover, it was entitled to a verdict for more than the sum granted, on the undisputed evidence in the case.

Heard before Hon. W. W. Pearson. Bill by Louise N. Holt and others against the Prattville Cotton Mills Company and George Stuart, its trustee in bankruptcy, with cross-bill by defendant trustee. Decree for complainants, and defendant trustee appeals.

Heard before Hon. A. H. Benners. Bill by George W. Lewis and wife against John W. Davis to vacate and annul a deed, and for general relief. From a decree for respondent, complainants appeal.

Heard before Hon. W. W. Haralson. Ejectment by C. W. Shipp against R. L. Ferguson. Judgment' for plaintiff, and defendant appeals.

Heard before Hon. John H. Miller. Action by Will Wilson against the National Baking & Lunch Company and Herman Fisch, for damages for injuries received. Judgment for plaintiff, and defendants appeal. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449.

ullman Circuit Court. Heard before Hon. R. C. Brickell. Special and general assumpsit by Mrs. Tillie Sparks against Tony Wise and others, for rent. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. It appeared that prior to August 15, 1913, defendants verbally leased from plaintiff a certain building and premises, the lease to begin October 1, 1913, and run six months.

Heard before Hon. A. H’ Alston. Action by J. A. Burke against the Louisville & Nashville-Railroad Company, for damages for injuries suffered in a collision. Judgment for plaintiff and defendant’s motion for a new trial being overruled, he appeals.

Heard before Hon. J. J. Curtis. Suit by Marian Shirley against the Southern Railway Company for damages for the death of her intestate. Judgment for defendant and plaintiff appeals.

Heard before Hon. Gaston Gunter. Bill by Mary J. Smith against J. Lee Holloway, to charge a •certain lot of land with a lien for an amount necessary for the •erection of a suitable residence for a family such as Holloway has, or to vacate and set aside a conveyance of the lot to Holloway. From a decree overruling demurrers to the bill, respondent appeals.

Heard before Hon. A. H. Alston. Action by Eula V. Morris against Ada B. Scott. Judgment overruling the demurrers to special pleas, and plaintiff appeals.

Heard before Hon. Thomas W. Coleman, Jr. Action by J. B. Griffis against the Anniston Lumber & Manufacturing Company and others for damages for breach of the covenant against encumbrances. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450.

Heard before Hon. C. W. Ferguson. Action by J. B. Brannon against I. W. Ross as receiver of the Birmingham, Ensley & Bessemer Railroad Company. Judgment for defendant, which on motion was set aside and new trial ordered, and defendant appeals. The following are the charges directed to be set out as given at the request of defendant: (4) Affirmative charge under the first count.

<p>Appeal from Montgomery Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Assumpsit by the Puffer Manufacturing Company against W. B. Kelly. Judgment for defendant and plaintiff appeals.</p>

Heard before Hon. H. A. Pearce. Statutory ejectment by Mittie E. Frederick as administratrix of the estate of Thomas W. Ansell, deceased, against J. H. Wil-bourne and others. Judgment for defendants and plaintiff appeals.

Heard before Hon. John H. Disque. Action by G. R. Vance against J. F. Morgan and others,, partner's, doing business under the firm flame of Morgan & Co. Judgment for defendant and plaintiff appeals.

'Heard before Hon. W. W. Pearson. Assumpsit by Alex Giles against Malcolm Manning. Judgment for plaintiff and defendant moved to set aside the judgment and dismiss the suit, the plaintiff having failed to file the requisite affidavit. The court denied the motion and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450.

Heard before Hon. W. W. Whiteside. Bill by Earl B. Walkley and others against N. B. Sewell, for rescission and to redeem. Prom a decree overruling demurrers to the amended bill, respondent appeals.

Heard before Hon. C. P. Almon. Action by A. J. Craven against H. C. Quillin. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

Action by Mrs. Charles Barnitz against the Central of Georgia Railway Company for damages for injury while a passenger. There was judgment for plaintiff and defendant appealed to the Court of Appeals, where the judgment was affirmed. Defendant now brings certioari to review and revise said judgment as the same appears reported in 14 Ala. App. 354, 70 South. 945.

Heard before Hon. W. W. Whiteside. Bill by Carter B. Harrison against Ethel Harrison and others for an injunction, and to specifically enforce a parol contract to convey lands. Judgment for respondents, and complainants appeal.

Heard before Hon. H. B. Foster. Trover by Theodore Plummer against Forbes & Carloss, Carloss as surviving partner, and individually, and one Hardi-son. Judgment for plaintiff and defendants appeal.

Heard before Hon. W. W. Pearson. Action by Sula King against the Louisville & Nashville Railroad Company for damages for personal injuries. Judgment for plaintiff and defendant appeals.

Heard before Hon. W. W. Whiteside, Special Judge. Bill by G. F. Park and others against Wm. R. Powledge and others. From an adverse judgment, complainants appeal. Bill by complainants G. F., J. T., and R. 0. Park (appellants here) against W. R. Powledge and others for the enforcement of a resulting trust in and to certain real estate situated in the city of Opelika.

<p>Appeal from Perry Circuit Court.</p> <p>Heard before Hon. B. M. Miller.</p> <p>Ejectment by L. C. Watson as trustee in bankruptcy, against Kate C. Duncan and others. Judgment for plaintiff and defendant appeals.</p>

Heard before Hon. A. H. Benners. Bill by S. N. Gore against Jere W. Gwin, et al., as members of the Board of Kevenue of Jefferson County, to enjoin them from issuing a warrant for the purpose of paying out of the funds of said county for transferring the books, papers, files, records and cases pending in the criminal court of Jefferson county to the circuit court of said county. From a decree granting the injunction the respondents appeal.

Heard before Hon. Thomas W. Wert. Action by Frank Rayburn against the Louisville & Nashville Railroad Company for damages for the death of his intestate. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

Heard before Hon. Thomas W. Coleman, Jr. Action by Bonds Brothers. against the Mitchell Transfer Company with garnishment to the Anniston City Bank. From a judgment for garnishee the plaintiff appeals. (Transferred from the Court of Appeals under Acts 1911, page 450.)

Heard before Hon. W. W. PEARSON. Bill by Alice V. Taylor against the E. E. Yarbrough Turpentine Co., et al, to restrain them from going upon certain lands and from boxing, cutting and scraping the trees thereon for turpentine, and to cancel the lease in so far' as the same purports to carry authority for any additional time to work and operate the timber after a certain date. Decree for complainant and respondents appeal.

Heard before Hon. Robert C. Brickell. Action by Geraldine Jones, as administratrix, etc., against the Western Union Telegraph Company. From judgment for plaintiff, defendant appeals.

Appeal fr.om Marshall Chanc.ery Court. Heard before Hon. James E. Horton, Jr. Bill by W. D. Cardwell against the Virginia State Insurance Company and others, for redemption from mortgage, to declare the policy of insurance an existing and binding obligation, and decree the right of complainant to collect the policy or to have credit on his mortgage to the full amount of-the claim.

Heard before Hon. J. H. Ballentine. Assumpsit and trover by J. E. Brannum against J. C. Hair-slip. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under Acts 1911, page 450.

<p>Ejectment.</p> <p>1. Evidence; Record of Deeds. — Under § 3374, as amended by Acts 1909,. page 14, it was not error to admit the record of the deed where one grantee was dead, the other grantee was out of the state and the defendant, who was landlord of the other defendant, testified that the deed had never been in his possession.</p> <p>2. Ejectment; Right to Recover* — Where the plaintiff claimed under devises, but a deed by the testator to other parties was proven, this foreclosed plaintiff’s right of recovéry and rendered it unnecessary to pass upon alleged errors on the trial.</p> <p>3. Wills; Revocation; Disposition of Property. — A proper deed from a testator while living conveying the property devised to parties other than the devisee foreclosed plaintiff’s right to recover, where plaintiff claimed title through such devisee.</p>

Heard before Hon. John H. Disque. Assumpsit by R. I. Yancey against H. P. Smith. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under. Acts 1911, p. 450, § 6.

Heard before Hon. John H. Disque. Bill by Charles Coleman against Carrie Lee Coleman for divorce, with cross bill by the respondent seeking divorce, alimony. and attorneys’ fee. There was a decree for complainant granting absolute divorce and awarding him the custody of the minor child. The decree also denied the respondent attorneys’1 fee and temporary and permanent alimony and respondent appeals.

Heard before Hon. John H. Disque. Action by Nina Kyle Elliott as Executrix of the estate of J. M. Elliott, deceased, against the Provident Life and Accident Insurance Company upon one of its policies. Judgment for the plaintiff and the defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450.

<p>Assumpsit.</p> <p>Frauds, Statutes of; Oral Promise; Substituted Obligation. — Where the buyer was entirely released and the obligation of one to whom the buyer sold his property and business was substituted, a new debt was created which was binding on the substituted debtor without liability on the part of the original debtor, though the new obligation was not reduced to writing in accordance with the statute of fraud.</p>

Heard before Hon. James E. Horton, Jr. Bill by C. Wesley Tidwell against the H. H. Hitt Lumber Co. and others to enjoin trespass to land. Decree for respondents and complainant appeals.

Heard before Hon. C. B. Smith. Action by Ed Britton against James W. Lusk and others, as receivers of the St. Louis & San Francisco Railroad Company for ■damages for personal injuries. Judgment for plaintiff and defendants appeal.

Heard before Hon. John H. Disque. Assumpsit by the Alabama City, Gadsden & Attalla Railway Company against C. G. Cassels. Judgment for plaintiff, and defendant appeals. The evidence referred to in assignments 5, 9, 17, 18, 38, and 39, sufficiently appears.

Heard before Hon. A. H. Alston. Action by Bob Pope against Mary 0. Copeland and others. Judgment for plaintiff, and defendants appeal. The first two counts were for conversion of personal property. Count 3 was for trespass to land.

Heard before Hon. C. B. Smith. Action by Mrs. Kate Dean against H. M. Atkinson and others as receivers for damages for injuries received while a passenger. Judgment for plaintiff and defendants appeal. Transferred from the Court of Appeals under Acts 1911, p. 450.

' Heard before Hon. W. W. Pearson. Action by John B. Byrd against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Suit by appellee for the recovery of damages for injuries sustained by his being struck by one of appellant’s engines while engaged in the performance of his duties as an employee of defendant.

Heard before Hon. Bernard Harwood. Assumpsit by the Butcher Tool & Hardware Company against J. C. Shepherd. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911 (Laws 1911, p. 450) § 6.

Heard before Hon. R. C. Brickell. Detinue by Newton J. Dickey against John Vaughn for a cow. Judgment for the defendant and plaintiff appeals. Transferred from the Court of Appeals under Acts 1911, p. 450.

Heard before Hon. C. P. Almon. Trover by William L. Chenault against' H. W. Stewart and another for the conversion of a mule. Judgment for the defendants and the plaintiff appeals. . Transferred from the Court of Appeals under Acts 1911, p. 450.

Heard before Hon. Bernard Harwood. Assumpsit by Roberts & Sons against B. P. Williams and others for a deficiency on notes secured by mortgage, which had been foreclosed, with plea of set-off and payment by the defendants. There was judgment for defendants for a balance on their plea of set-off and plaintiffs appeal. Transferred from the Court of Appeals under Acts 1911, p. 450.

Heard before Hon. ft. C. Brickell. The city of New Decatur assessed the value of certain public improvements against certain lots owned by the Decatur Land Company from which assessment the Land Company took an appeal to the circuit court. The circuit court dismissed the appeal and from this order the Land Company appeals.

Heard before Hon. R. C. Brickell. Action by Thompson & Buchmann against J. 'P. Lockwood and others for rent. There was judgment for plaintiff in the justice of peace court and the defendants are the appellant and sureties on an appeal bond to the circuit court. After judgment for plaintiff in the circuit court against defendant and the sureties on his appeal bond the sureties entered a motion to retax the costs, and their motion being overruled they appeal.

Heard before Hon. John H. Miller. Action by B. E. Jackson and another, doing business under the firm name of Jackson & Syphus, against Alice D. Catanzano, for work and labor done and materials furnished. Judgment for plaintiffs, and defendant appeals.

Heard before Hon. C. P. Almon. Action by Z. D. Howington against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. W. W. Haralson. Ejectment by A. B. Green against Marshall L. Stephens and others, in which John F. and Charles F. Fugazzi intervened as parties defendant. Judgment allowing redemption by intervening defendants, and plaintiff appeals.

Heard before Hon. C. W. Ferguson. Suit by Thomas P. Kenny, as administrator of the estate of Donald A. Kenny, deceased, against the Supreme Lodge of the World, Loyal Order of Moose, Birmingham Lodge No. 432, Loyal Order of Moose, and certain officers of the lodge.

Heard before Hon. J. C. B. Gwin. Action by James Wiggins against the Tennessee Coal Iron & Railroad Company for injuries suffered while in its employment. Judgment for plaintiff and defendant appeals.

Heard before Hon. W. W. Haralson. Action by Lora Rowe against the Southern Railway Company for breach of contract. Judgment for plaintiff, and defendant appeals. The following is the complaint: Count 1.

Heard before Hon. C. B. Smith. Action by S. H. Jones against Sterling S. Lanier for breach of contract to purchase coal. Judgment for defendant and plaintiff appeals.

Heard before Hon. A. H. Alston. Action by Irene Jackson and another, as administrators, against the Birmingham Bailway, Light & Power Company. From judgment for plaintiffs, defendant appeals.

Heard before Hon. Hugh D. Merrill. Action by James W. Perkins, as administrator, against the Alabama Fuel &'Iron Company, with intervention by.W. A. Denson. From a judgment for defendant, the intervener appeals.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. John C. Pugh.</p> <p>Ejectment by Mary A. Snow against J. A. Bray and others. Judgment for the defendants and plaintiff appeals.</p>

Heard before Hon. C. P. McIntyre. Suit by J. B. Lewis against the International Insurance Company upon a fire insurance policy. From a judgment of non-suit plaintiff appeals.

Heard before Hon. William M. Williams, Special Judge. Action by J. J. Williams against the Louisville & Nashville Railroad Company for failure to deliver a shipment of cotton. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449.

Heard before Hon. E. C. Crow. Action by Alex Nobles against H. H. Goldstein and Ed Putnam for maliciously suing out an attachment. Judgment for plaintiff, and defendants appeal. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6.

. Heard before Hon. Hugh D. Merrill. Action by F. M. Adams against the Central of Georgia Railway Company for damages for ejecting him while a passenger. Judgment for defendant and plaintiff appeals.

Heard before Hon. C. W. Ferguson. Action by William Garrett against the Birmingham Railway, Light & Power Company, for injuries received while a passenger. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Act April 18, 1911.

Heard before Hon. C. W. Ferguson. Action by Max Karpeles as administrator against the City Ice Delivery Company for damages for the death of his intestate in a collison with an automobile. Judgment for defendant, and plaintiff appeals.

Heard before Hon. James H. Ballentine. Bill by D. C. Finney against George McCalley for a sale of land for partition. There was a decree for complainant confirming the sale and respondent appealed.

• Appeal from Shelby Circuit Court. Heard before Hon. Hugh D. Merrill. Action by J. L. Isbell against the Central of Georgia Kailway Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. John H. Miller. Assumpsit by the Terre Haute Brewing Company against Hugh McGeever and others on a joint and several obligation bond. The court overruled demurrer to defendant’s pleas and the plaintiff took judgment of non suit and appeals.

Heard before Hon. Saffold Berney. Bill by Emeline Thomas against D. J. Dinsmoor, to specifically perform an agreement to convey. Decree for complainant, and respondent appeals. The facts sufficiently appear from the opinion. The order of submission was originally filed on April 2, 1914, and on July 30th there is indorsed on said order a refiling as of that date.

<p>Assumpsit.</p> <p>1. Partnership; Powers of Partners; Endorsing Note. — While one partner has no authority to endorse a note in the partnership name for the benefit of third person, without the consent of the others and his endorsement imposes no liability on the firm, yet if such endorsement is assented to by the other partners it is obligatory on the firm.</p> <p>2. Same; Ratification. — The assent of a partner to the execution and renewal of a note originally endorsed by a partner for the benefit of a third person may be inferred from the partners silence upon being informed by the other partner of the existence of the note and that the partnership would have to renew it.</p> <p>3. Charge of Court; Requested Instructions. — It is not error to refuse instructions substantially covered by written or oral instruction given.</p> <p>4. Partnership; Accommodation Endorsement; New Partner. — Where an accommodation note had become a partnership liability which an incoming partner had assumed upon becoming a member of the firm, the note was an original debt of the firm and either partner had the right to renew it with or without the assent of the other partner.</p> <p>5. Same; Action Against. — Where the action was against a partner on a firm note, one-half of which had been paid by the other partner, it was not error to sustain an objection to a question whether plaintiff had not agreed with the other partner when he paid his half of the note that he was to pay no further sum on the note in the absence of a plea setting up a release of such other partner by plaintiff.</p>

Heard before Hon. H. A. Sharpe. Action by Ben. J. Johnson against the Union Central Relief Association upon a sick benefit policy. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449.

Heard before Hon. A. H. Benners. Bill by the Securities Company of America against A. D. Smith & Sons Inc. and others for specific performance of a contract of sale of corporate stock and for general relief. Decree for complainants and respondents appeal.

Heard before Hon. C. B. Smith. Action by J. D. Lanier against the Central of Georgia Railway Company for damages for selling him the wrong script. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449.

Heard before Hon. A. B. Foster. Assumpsit by R. G. Hoover against Grffiin Miller and others. Judgment for defendants, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. It appears that the note was executed by the Central Hardware Company, and was indorsed by defendant to plaintiff; the note being payable to the order of Griffin Miller.

' Heard before Hon'. J. H. Ballentine. Assumpsit by the Oil Well Supply Company against the West Huntsville Cotton Mills Company. Judgment for defendant and plaintiff appeals. Transferred from the Court of Appeals under Acts 1911, p. 450.

Heard before Hon. James E. Horton, Jr. Bill by Unity D. Dancy and others against the Alabama Power Company and others to restrain trespass to land and for damages. From decree sustaining demurrers to the bill complainants appeal.

Heard before Hon. John H. Disque. Action by Thomas W. Atkinson against The Travelers’ Insurance Company of Hartford Connecticut, on a policy of accident and employees’ insurance. Judgment for plaintiff and defendant appeals.

Heard before Hon. A. H. Benners. Bill by G. R. Trammell against William H. Bradford. From a decree sustaining demurrer to the bill, complainant appeals.

Heard before Hon. Bernard Harwood. Action by Mrs. L. E. Buckelew against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. Judgment for deféndant, and plaintiff appeals. Suit by appellant against appellee for recovery of damages caused by the flooding of a residence lot by water alleged to have been backed upon the premises from a waterway the natural course of which was changed by the construction of defendant’s roadbed.

Heard before Hon. J. J. Curtis. Action by Henry Allen and others as administrators against the Standard Insurance Company. There was judgment for plaintiff which on motion of defendant was set aside and a new trial granted. From this order plaintiffs appeal.

Heard before Hon. R. C. Brickell. Action by Mason Butner, by bis next friend, against the Huntsville Knitting Company. Judgment for plaintiff, and defendant appeals. The second count sufficiently appears.

<p>Appeal from Morgan Circuit Court.</p> <p>Heard before Hon. Robert C. Brickell.</p> <p>Assumpsit by Fannie Rose against Tennie Lampkin, as administrator. Judgment for plaintiff and defendant appeals.</p> <p>Transferred from Court of Appeals under Acts 1911, p. 450.</p>

Heard before Hon. J. C. B. Gwin. Bill by the City of Bessemer against the Bessemer Water Works to enforce service connection with a consumer at the expense of the company. Decree for complainant and respondent appeals.'

Heard before Hon. E. S. Lyman. Action by C. C. Martin against the Louisville and Nashville Railroad Company for damages for personal injuries sustained in getting off of a moving train. Judgment for the plaintiff and defendant appeals. (Transferred from the Court of Appeals under Acts 1911, p. 449.)

Heard before Hon. Oscar S. Lewis. Bill by P. R. Dubberly and others against the Alabama Fidelity, Mortgage and Bond Company to cancel and annul the consolidation of the corporation and for other relief. From a decree .-overruling demurrers to the bill respondent appeals.

Heard before Hon. Thomas W. Coleman, Jr. Action by V/. L. Little against C. 0. McGraw and others. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. The only damages counted on are for counsel fees incurred in defending the injunction suit.

Heard before Hon. C. B. Smith. Petition by the Alabama Fidelity & Casualty Company against the Jefferson County Savings Bank to vacate a judgment.

Heard before Hon. John H. Bisque. John F. Cox sued ft. W. Johnson and others in unlawful de-tainer and in ejectment under an agreement that one case should be tried and that judgment should enter in each case in conformity to the finding of the jury in the case tried.

Heard before Hon. W■ W. Pearson. Action by Mary B. Lamont against the Marbury Lumber Company for damages for trespass to realty. Judgment for plaintiff and defendant appeals.

Heard before Hon. Robert C. Brickell. Ejectment by Alice Oden and others, by their guardian, against Nancy Bates and others. Judgment for plaintiffs, and defendants appeal. Plaintiffs relied on a deed executed by J. H. Hornsby and wife to J. M. Hornsby, a mortgage from J. M. Hornsby and wife to J. J. Cudd, and a foreclosure deed from J. J. Cudd to P. A. Oden; Alice and Izez Oden, plaintiffs, being the only heirs at law of said P. A. Oden, he and his wife both being dead.

Heard before Hon. John F. Kelton. Petition by Annie Kohlenberg to probate the will of Charles Kohlenberg, with contest by Kate Shaw. Decree for contestant, and proponent appeals. The contest was based on the ground that the alleged will was not the last will and testament of the said Kohlenberg, in that it was revoked by a later will.

Heard before Hon. Henry B. Foster. Bill by E. S. Latimer and others against Anders Brothers and others to have a mortgage declared a general assignment and for other relief. Eespondents filed a plea setting up the pendency of bankrupt proceedings at the time the bill was filed. The court' held this plea insufficient and respondents appealed.

Heard before Hon. J. C. B. GwiN. Bill by J. D. Faulks against the Bellview Cemetery Company and others. From a decree overruling demurrer to the bill, respondents appeal.

Heard before Hon. J. J. CURTIS. Ejectment by S. J. Gaines and others against H. P. Gibson. Judgment for plaintiffs, and defendant appeals. The facts sufficiently appear.

Heard before Hon. John H. Disque. Action by Samantha Holmes against the Dwight Manufacturing Company for personal injuries. Judgment for the plaintiff and the defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450.

Heard before Hon. C. B. Smith. Action by Alex. Warner against the United States Cast Iron, Pipe & Foundry Company for damages while engaging in its employment. Judgment for plaintiff, and defendant appeals.

Heard before Hon. D. W. Speake. Action by Fannie Hayes and others against- the Southern Railway Company for damages for trespasses to land. Judgment for plaintiffs and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450.

<p>Ejectment.</p> <p>1. Partnership; Suit in Firm Name. — A partnership is not a person, natural or artificial and -cannot sue in the firm name without the aid of the statute.</p> <p>2. Judgment; Amendment after Term; Common Law. — At common law courts were not authorized to amend judgments after the close of the term at which they were rendered, and judgments are not amendable at a subsequent term except in pursuance of statutory provisions.</p> <p>3. Same; Lien; Naming Parties; Statute: — Neither a judgment which describes plaintiff, the partnership, in its title and body as J. Pollock & Company, nor a certificate of the judgment filed for registration in the office of judge of probate, which describes the plaintiff likewise, showed the names of all the parties as required by section 4156, Code 1907, as a condition precedent to the acquisition of the lien under section 4157, Code 1907.</p> <p>4. Same; Nunc Pro Tunc Judgment; Rights of Purchaser. — The purchaser of real estate takes it charged with only such judgment liens as actually existed at the time of the purchase, and it is not competent for a court to fasten a lien on the land of a third person by the rendition of a nunc pro tunc judgment against his grantor, nor can the certificate of the judgment, registered in the office of the judge of probate be amended to affect the title of a third person previously acquired.</p>

Heard before Hon. Sapfold Berney. Action by the Hallett Manufacturing Company against H. Curjel & Co. for breach of contract. Judgment for plaintiff, and defendant appeals.

<p>Mandamus.</p> <p>. 1. Mandamus; Subjects of Relief; Claim Against County; Discretion.— Construing sections 1 and 4; Local Acts 1915, p. 3, it is held that where the county board had exercised its discretion to work the convicts on the road, it could be compelled by mandamus to pay the costs out of one or the other of the specified funds, but could not be compelled to pay it out of a particular fund.</p> <p>2. Same; Adequae Legal Remedy. — Until the county board of revenue has exercised its discretion to determine the fund from which such costs shall be paid the remedy at law for the recovery of the costs is not adequate and mandamus will lie.</p> <p>3. Costs; Payment by County; Statutes. — The right of the convict to discharge the costs by payment as provided by section 7635 does not relieve the county of its duty to pay such costs, for if they are paid in part by the convict before payment by the county, the county is liable only for the balance and if they are paid by convicts after payment by the county the amount would be turned over to the county as the party entitled thereto under section 4, Local Acts 1915, p. 3.</p> <p>4. Same. — The fact that a convict may die or escape before the costs are worked out by him does not relieve the county of its statutory liability; such a contingency being a matter for the legislature and not for the court.</p> <p>5. Same; Time. — The county is required by sections 1 and 4, Local Acts 1915, p. 3, to issue its warrant for the costs, although the convicts have not yet discharged the costs by their labors.</p>

<p>Injuries in. Collision.</p> <p>1. Street Railways; Collisions; Contributory Negligence. — The evidence in this case stated and held to show such contributory negligence on the part of the driver of the motorcycle as to preclude a recovery for the injuries so sustained in collision with the street car.</p> <p>2. Negligence; Presumption; Res Ipsa Loquiter. — While there are cases to which the doctrine of res ipsa loquiter applies, negligence is not generally presumed from the fact of injury or damage.</p> <p>,3. Street Railways; Speed. — Assuming that twenty-five miles per hour was a negligent rate of speed for a street car a motorcycle rider whose machine the car cleared, but which was struck by a trailer, could not recover since he and not the car must have brought about the collision.</p>

Heard before Hon. A. H. Benners. Bill by W. A. Brown against J. W. Crumley, personally, and as administrator of Sarah J. Crumley, deceased. On death of defendant pending suit, the cause was continued against L. J. Cox, as administrator de bonis non of Sarah J. Crumley and as administrator of J. W. Crumley, and by amendment against the heirs at law of Sarah J. Crumley. Decree for complainant, and respondents appeal.

Heard before Hon. C. B. Smith. Action by E. D. Goggins against the Southern Railway Company for damages for killing a cow, begun in the justice court and carried by the defendant to the circuit court on appeal. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450.

Heard before Hon. Robert C. Brickell. Action by Cora Kelley against the Louisville & Nashville Railroad Company for damages she received in a runaway alleged to have been caused by the negligent emission of steam and noises from one of defendant’s locomotives. Judgment for plaintiff and defendant appeals.

Heard before Hon. J. C. B. GwiN. Action by Dáisy Lipscomb against the Birmingham Railway, Light & Power Company. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 450. Judgment for plaintiff, and defendant appeals. The pleadings sufficiently appear.

Heard before Hon. John H. Disque. Action by Ida Perkins, as administratrix, against Charles Galloway for damages for the death of her intestate in an automobile accident. Judgment for plaintiff and defendant appeals.

Heard before Hon. Hugh D. Merrill. Action by A. Dishman and another against J. B. Griffis and others. Judgment for defendants on its plea, and plaintiffs appeal. Beversed and remanded. It appears that J. B. Griffis brought suit against the Anniston Lumber & Manufacturing Company and A. Dishman for a certain sum of money, and had garnishment in aid of suit issued to certain named parties, to obtain which the plaintiff executed the ordinary garnishment bond.

Heard before Hon. James E. Horton, Jr. Bill by J. 0. Crow against F. M. Warren and wife to reform and foreclose a mortgage. Decree for complainant and respondents appeal.

Heard before Hon. Gaston Gunter. Action by the Singer Sewing Machine Company against . Charles B. Teasley, Judge of Probate, to recover license money alleged to have been paid through mistake. Judgment for defendant and plaintiff appeals.

Heard before Hon. S. L. Brewer. Action by J. P. Hawkins against the Western Union Telegraph Company. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under section 6, Act 1911, p. 449. The action was ex contractu for a failure to deliver an interstate telegram sent to plaintiff at Notasulga, Ala., by his agent at LaGrange, Ga., announcing the death of the father of the sender and sendee, and the funeral arrangements.

<p>Appeal from Shelby Circuit Court.</p> <p>Heard before Hon. Hugh D. Merrill.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>Appeal from Gadsden City Court.</p> <p>Heard before Hon. John Disque.</p>