Volume 2 — Alabama Appellate Reports

Heard before Hon. Thomas W. Coleman; Jr. Bat Humphries was convicted of second degree murder, and he appeals. The exceptions to evidence are sufficiently noted in the opinion. The following charges were refused to the defendant: “(1) Unless you believe beyond all reasonable doubt that the defendant fired the fatal shot that took the life of Looney Humphries, or that he was instrumental in procuring some one else to do so, then you should find the defendant not guilty.

B. M. Miller. Arthur Sanders was convicted of murder in the second degree, and he appeals. The original indictment is in words and figures as follows: “The grand jury of said county charged that, before the finding of this indictment, Levi Sanders, alias Levi Zanders, and Arthur Sanders, alias Arthur Zanders, unlawfully and with malice aforethought killed Jeffy Lewis by shooting him with a gun, against,” etc. The motion to strike and quash the indictment must be granted.

Heard before Hon. D. W. Speake. Wess Montgomery was convicted of manslaughter in the first degree and he appeals. The court erred in refusing charge 13. — Garden v. The State, 84, Ala. 420; Sylvester v. The State, 71 Ala. 18. The court erred in refusing charge 14. — Bishop on Crim. Law, Sec. 871. Charge 15 should have been given. — Perry v. The State, 94 Ala. 25; Roberts v. The State, 68 Ala. 156.

Heard before Hon. B. M. Miller. Will Lunsford was convicted of manslaughter and he appeals. Counsel discuss the question of self-defense and in support of his contentions cites, on the question of freedom from fault, Waller v. The State, 89 Ala. 79; Robinson v. The State, 45 So. 916; 25 A. & E. Enc. of Law, 268; Fussell v. The State, 94 Ga. 78; Massey v. Commonwealth, 29 S’. W. 871; Newman v. The State, 69 S'. W. 519.

Heard before Hon. C. P. Alm'on. Hatera,s Fuqua appeals from a conviction of murder in the second degree. The court cannot be put iu error for sustaining objection to a question which had already been asked and answered.— Evans v. The State, 109 Ala. 11; W. U. T. Go-. v. Merrill, 144 Ala. 618. The witness was shown to be out of the state, and hence, the substance of her testimony could be detailed by one who heard it. — Burton v. The State, 115 Ala. 1.

Heard before Hon. Armstead Brown. From a conviction of murder in the second degree Da.ve Jackson appeals. Under the circumstances in this case the right of self-defense revived.— Parker v. The State, 88 Ala. 4; Story’s Case, 71 Ala. 330. Under these authorities, it is apparent that the court erred in its oral charge to the' jury, and that the question of the good faith of the defendant should have been submitted to the jury.

Heard before Hon. W. W. Pearson. TheopMlus Eubanks was convicted of first degree manslaughter, and he appeals. The facts sufficiently appear in the opinion of the court.

Heard before Hon. H. A. Pearce. Alex Flowers was convicted of murder in the second degree, and lie appeals.

Heard before Hon. O. J. Semmes. Lee Sills was convicted of murder in tbe second degree, and he appeals. The bill of exceptions shows that Weinacker was called by the defendant, and the defendant offered to show by him that John Jackson made a statement conforming to his testimony in court before he saw either Dudley or Crozier.

Heard before Hon. Bernard Harwood. Elmer Olive was convicted of murder in the second degree, and he appeals. Where a part of the conversation is brought out by the state, the defendant is entitled to the whole of the conversation. — Webb v. The State, 100 Ala. 52; Maddox v. The State, 48 So. 689; 56 So. 62; lb. 67. These statements were close to the time and place of the fatal rencounter and formed a part of the res gestae. — Smith v. The State, 53 Ala. 486.

Heard before Hon. Bernard Harwood. Boss Sanford was convicted of murder in tbe second degree and be appeals. Tbe following charges were refused to deforman: 5.

<p>Appeal from Elmore Circuit Court. "</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Dawes Barker was convicted of murder in the second degree, and he appeals.</p>

Heard before Hon. William E. Foet. From a conviction of manslaughter, Gilbert appeals. The matter of continuance was within the discretion of the trial court, and not revisable on appeal. — House v. The State, 139 Ala. 132; Terry v. The State, 120 Ala. 287; Walker v. The State, 117 Ala. 85.

Heard before Hon. Lum Duke. Lee Long was convicted of manslaughter in the second degree and he appeals. The question to the witness Lucius Pope and his answer, thereto should have been excluded. — Watkins v. The State, 89 Ala. 82; Fuller v. The State, 117 Ala. 86; McKee v. The State, 82 Ala. 32. The court should have sustained objection to the argument of the solicitor, and should have excluded it. — Dollar v. The State, 99 Ala. 236.

Heard before Hon. J. O. B. Gwin. The following opinion was filed on application for rehearing, and should be read in connection with the former report of this case found in 1 C. of A. 48; 55 So. 956.

Heard before Hon. M. Frank Cahalan. Charles Kelly was convicted of an assault with intent to murder, and he appeals. Counsel discuss assignments relative to the exclusion of evidence, but without citation of authority. 'They insist that the court erred in refusing charges 3 and 4, and cite Kennedy v. The State, 140 Ala. 1; Tribble v. The State, 145 Ala. 23.

Heard before Hon. S. L. Weaver. Will Milford was convicted of assault with intent to murder and sentenced to twenty years in the penitentiary. The defense was not guilty by reason of insanity. From the conviction he appeals. The general character of the wife (in this case the person assaulted) and her acts, tending to produce strange mental condition, were admissible, and the court erred in excluding the evidence offered in this connection. — White v. The State, 22 So.

Heard before Hon, M. Frank Cabalan. John Hankinson was convicted of an assault with intent to murder, and he appeals. The indictment is as follows (omitting formal charging part) : John Hankinson unlawfully and with malice aforethought did assault Josh Jones, with intent to murder him, etc. The demurrers are: 1. -Fails to allege with what kind or character of instrument the said assault was committed. 2. Fails to allege how Josh Jones was assaulted. 3.

Heard before Hon. Samuel B. Br'owne. From a conviction of assault with intent to murder Jordan Crandall appeals. The indictment was subject to the pleas interposed, and should have been quashed. — Gochran v. The State, 89 Ala. 40. The curative effect of section 23, Acts 1909, p. 305, cannot save the indictment.

<p> Raspe. </p> <p>1. Rapo; Moments. In order to sustain an indictment for rape, it is necessary to prove actual penetration.</p> <p>2. Same. — One who has sexual intercourse with a female, by force and against her will is guilty of rape.</p> <p>3. Criminal Lato; Former Jeopardy; Conviction by Recorder.— Where the facts charged constituted a felony, a conviction by the mayor or recorder of a city of an assault, is not a bar to a prosecution for rape. (Sec. 1221, Code 1907.)</p> <p>4. Witnesses; Impeachment; Proof of Contradictory Matter.— Where the prosecutrix testified that the defendant by force and against her will had sexual intercourse with her, and it was claimed by the- defendant that on a former trial before the mayor the prosecutrix had testified that the defendant assaulted her but did not have sexual intercourse with her, this was contradictory matter of a material fact in the case, and the defendant was entitled to show if he could, such contradictory statements.</p>

Heard before Hon. H. A. Pearce. Frank Herndon was convicted of rape, and lie appeals. Counsel insist that the court erred in several particulars in the empaneling and arrangement of the jury that tried his case, to his prejudice, and in support of these insistences cite; Acts 1909, page 305; Jackson v. The State, 171 Ala. The court erred in refusing to give charge 1. —McQuirk v. The State, 81 Ala. 135; Davotdns p. The State, 58 Ala. 278.

Heard before Hon. W. W. Pearson. Jim Parker was convicted of assault with intent to rape, and he appeals. Under the proof the offense was committed more than three years before the commencement of the prosecution, and as the offense was governed by Sec. 7346, Code 1907, the defendant was entitled to the affirmative charge, as requested.

Heard before Hou. A. H. Alston. Freeman and Ernest McGuire were convicted of assault and battery, and they appeal. The evidence as to general character was properly admitted.

Heard before Hon. A. E. Barnett. Addison Flake was indicted for an assault with intent to murder and convicted of an assault and battery, and he appeals. Counsel insist that under the facts in this case, the application to establish the bill of exceptions was filed in accordance with the statute, and in time, and that the bill of exceptions as presented should be established. — Sec. 3022, Code 1907.

Heard before Hon. M. Frank Cabalan. From a conviction for assault and battery defendant appeals.

Heard before Hon. Thomas W. Davis. Charley Cox was convicted of larceny and he appeals. Larceny involves three propositions: 1st, the taking from possession or control; 2nd, carrying away against the will of the oivner, and 3rd, felonious intent to convert.

Appear from Lee Law and Equity Oourt. Heard before Hon. Lum Dukes. Hix, Alias John Davis, was convicted of grand larcey and he appeals. Where testimony is illegal in whole or in part, and is given in answer to a legal question, objection to such testimony and motion to exclude it is proper and does not come too late. —A. O. E. Go. v. Ryan, 112 Ala. 337; McDonald v. Wood, 118 Ala. 589.

Heard before Hon. William E. Fort. E. B. Mitchell was convicted of embezzlement and larceny, and he appeals.

Heard before Hon. J. W. Mabry. Walter Bell was convicted of receiving stolen property, and he. appeals. The facts sufficiently appear in the opinion.

Heard, before Hon. John T. Lackland. John Wall was convicted of embezzlement, and appeals. Omitting the formal charging part, the indictment is as follows: “John Wall, alias John Walls, agent of Mandy Simpkins, embezzled or fraudulent converted to his own use money to about the amount of $500, which came into his possession by virtue of his agency or employment, against the peace and dignity,” etc. The demurrers raise the questions discussed in the opinion.

Heard before Hon. Armstead Brown. Reese Martin was convicted of keeping a gaming table, and he appeals. ■ The exceptions to evidence sufficiently appear in the ■opinion of the court.

Apeal from Morgan Law and Equity Court, I-Ieard before Hon. Thomas W. Wert. W. J. Wylsonne was convicted of carrying concealed Aveapons and he appeals. The averments of the affidavit AA-ere sufficient. — Jordan v. A. C. 8:, 81 Ala. 226; Lunsford v. Deitrich, 93 Ala. 569; Maries v. Hastings, 101 Ala. 173. Local Acts 1907, page 206.

Heard, before 1-Ion. William Jackson. Mat Sapp was convicted of violating the prohibition law, and he appeals. The facts as to the pleas sufficiently appear in the opinion of the court.

Heard before Hon. B. M. Miller. Schug Clark was convicted of violating the prohibition law, and front a sentence to hard labor, including costs of removal, he appeals. Counsel insists that section 13 of the present Act relative to the convict system is the same as section 54 of the Acts of 1892-3, and that it is unconstitutional. — Brown v. The State, 115 Ala. 74.

Heard before Hon. Ti-iomas W. Davis. Rafe Davis was convicted of violation of the prohibition law and appeals. Omitting the formal charging part, the indictment is as follows: (1) Rafe Davis sold spirituous, vinous, or malt liquors, without license and contrary to law, within the limits of Clarke county, Ala.

Heard before Hon. C. P. Admon. From a conviction for violating the prohibition law Taz Wilson appeals. The case should have been continued in the absence of the stenographer. Acts 1909, p. 264. Counsel discusses the assignments of error relative to evidence, but without citation of authority.

Clair Circuit Court. Heard before Hon. John W. Inzer. Make Shell was convicted of violating the local option law, and he appeals.

Heard before I-Ion. E. S. Lyman. From a conviction for violating the prohibition law James Smith appeals. The pleadings do not appear in the record and the action of the lower court cannot be reviewed. Ala. O. Go. v. Niles, 156 Ala. 298; G. of Ga. v. Ashley, 160 Ala. 580. Counsel discuss objections to evidence, and insist that under the Fuller bill, Acts 1909, p. 91, the evidence admitted was competent.

Heard before Hon. A. H. Alston. Harve McGuire was convicted of violating tbe prohibition law, and be appeals.

Heard before Hon. J. C. B. Gavin. Joe F. Bell was convicted of violating the prohibition law, and appeals. The exceptions to evidence sufficiently appear in the opinion.

Heard before Hou. John T. Lackland. Dudley Jackson was convicted of embezzlement, and appeals. The contract referred to in the opinion is as follows: “Tennessee Valley Fertilizer Company, Florence, Ala., 12/7/1908.

Heard before Hon. Thomas W. Davis. John D. Dungan was convicted of defamation, and he appeals. The affidavit was as follows, omitting the formal charging part: ‘‘Personally appeared T. W. Walker, who, first being duly sworn, deposeth and says that he lias probable cause for believing, and does believe, that within 12 months before the commencement of this prosecution, in said county, John I).

Heard before Hon. John S. Curtis. Love Rowe was convicted of seining or taking fish out of season, and be appeals. Tbe conrt erred in putting tbe defendant to trial before tbe court without a jury. — 24 Cyc. 164-170; Oliver v. Herron, 106 Ala. 80. Sufficient proof of venue was not made. — Frank v, The State, 40 Ala. 9; Sparks v. The State, 59 Ala. 82; Omothorn v. The State,- 63 Ala.. 157. Counsel discusses other assignments of error, but Avithout citation of authority.

Heard before Hon. Milo Abercrombie. The defendant, Robert Jones, was convicted of petit larceny and he appeals. The evidence was not sufficient and wholly fails to show the corpus delicti, and the defendant should have been discharged. — San- ' ders v. The State, 167 Ala. 85.

Heard before Hon. Milo Abercrombie-. Richard Wheat was convicted of presenting a firearm at another and he appeals. Proof of bias, hostility or ill will of the prosecuting witness to the defendant, is competent and may be shown by questions on cross examination. — Blalcey v. Blalcey, 33 Ala.. 611 McHugh v. The State, 31 Ala. 317; Bullard v. Lambert, 40 Ala. 204; Fincher v. The State, 58 Ala.. 219.

Heard before Hon. W. W. Pearson. ■ James Maddox was convicted of perjury and he appeals. The indictment was insufficient in that it failed to state the substance of the proceeding as required by section 7542, Code 1907. — Jacobs v. The State, 61 Ala. 448; McGlerldnn v. The State, 105 Ala. 107; Smith v. The State, 103 Ala. 57; E'icks v. The State, 86 Ala. 30; Davis v. The State, 79 Ala. 20.

Heard before Hon. Thomas W. Davis. John Adam Banks was convicted of trespass, and lie appeals.

Heard before Hon. A. O. Lane. Application by W. M. Curry for bis discharge from a warrant issued by the governor on extradiction application. Held: because habeas corpus is not the proper proceeding in which to try the issue of an alibi. — Hyatt v. State of Neto York, 188 U. S. 710, 47 Law Ed. 661; Munsey v. Clough, 196 U. S. 374, 49 Law Ed. 518, 25 Sup. Ct. 282; Bruce v. Rayner, 124 Fed. 483; Farrell v. Hanoley, v. Ilmoley, 70 L. R. A. 689.

Heard before Hoa. George Leslie. Application by Thomas J. Law for-his discharge from custody on a warrant issued by the Governor on the. demand of the Governor of a sister state in extradition proceedings. From a judgment denying the discharge petitioner appeals.

Heard before Hon. C. P. Almon. Hez Palmer was convicted under an indictment, and thereafter entered motion to vacate the judgment entry because made and entered after the adjournment of the term at which he was tried. From a judgment denying this motion he appeals. The judgment was void. — Winn v. McCraney, 46 South. 854. Motion to vacate was the proper remedy. — Gofer v. The State, 52 South. 935.

Heard before Hon. James J. Rat. Action by W. R. Long & Son against J. M. Gann on a contract to purchase cotton for future actual delivery. Judgment for plaintiffs and defendant appeals.

Heard before Hon. S. L. Brewer. Action by J. D. Parks and another against the Tallassee Falls Manufacturing Company, on. an injunction bond. Judgment for plaintiff and defendant appealed. Error in admission of evidence is cause for reversal, unless the record affirmatively rebuts the idea of injury. In this case the court admitted evidence of a number of damages not claimed in the complaint and its action in doing so was fatally erroneous.

Heard before Hon. Thos. W. Coleman, Jr. Action by Ruby Bentley against tbe. Johnston Bros. Company. From a judgment for plaintiff, defendant appeals. Tbe facts sufficiently appear in tbe opinion of tbe court.

A. O. Lane. Action by the Southern Construction Company against the Philip Carey Manufacturing Company for damages for breach of contract. Judgment for plaintiff, and defendant appeals.

Heard before Hon. W. W. Haralson. Action by Thos. M. Barclift against John H. Snead on a negotiable instrument. Judgment for plaintiff and defendant appeals. The fact that the note was not delivered at the time of payment is not sufficient to charge the maker with notice of a transfer. — Bmh v. Bproiill, 105 Ala. 281; Vann v. Mar-bury, 100 Ala. 438; Hart v. Freeman, 42 Ala. 567. The charges refused should have been given. — Gillman v. FF. O. B. B. Go., 72 Ala. 585.

Mobile Law and Equity Court. Heard before Hon. Saeeold Berney. Assumpsit by Strauss Saddlery Co. against C. Y, Johnson and others. There was judgment by default for the plaintiff and the defendant, C. Y. Johnson, filed a writ of error coram vobis to set aside the default judgment. From an order denying the writ the petitioner appeals. The court had jurisdiction to grant the writ. — Holforcl v. Alemncler, 12 Ala. 280; 101 U. S. 110; 12 Peters 188; 11 Am.

Heard before Hou. H. A. Pearce. Action by Mrs. C. A. Mathews against J. ■ Rawls. Judgment for plaintiff, and defendant appeals. The complaint is as follows: “Plaintiff claims of the defendant the sum of $175 for rent of one storehouse and lot in the town of Enterprise for the months of February, March, April, May,- June, July, and August, 1908.

Heard before Hon. James J. Ray. Action by the Talladega Fertilizer & Manufacturing Company against the Farmers’ Union Warehouse Company on a promissory note given for the sale of commercial fertilizer. Judgment for defendant, and plaintiff appeals.

Heard before Hon. D. W. Speak®. Trial of the right of property between G. -S. Leeth and Kornman, Sawyer & Co. Judgment for plaintiffs and claimant appeals. Submitted on motion to dismiss the appeal and to strike the bill of exceptions.

Heard, before Hon. A. H. Alston. Action by the Deming Co. against E. J. Bryan for the price of machinery. Judgment for the defendant and plaintiff appeals. The general affirmative charge should be given by a trial Court when there is no conflict in the evidence as to any material point involved in the determination of the cause, and when so' requested in writing. — Ala. G. L. Ins. Go. \v. Mob. Ins. Go., 81 Ala. 829.

Heard before Hon. James J. Bay. Assumpsit against the Bed Star Coal Co. Judgment for plaintiff and defendant appeals. The contract was void for uncertainty, no recovery could be had in this action. — Lambie v. Sloss Iron & Steel Go., 118 Ala. 427.

■ Heard before Hon. D. W. Speake. Attachment by tbe Montgomery-Moore Manufacturing Company against McCutcben & Son; G. Scott Leeth, claimant. Judgment for claimant, and plaintiff appeals. The facts and exceptions to evidence are sufficiently set out in the opinion of the court.

and Equity Court. Heard before Hon. Sapfold Berney. Assumpsit by Lindsey Bros, against W. M. Johnson. Judgment for plaintiff and defendant appeals.

Heard before Hon. Thos. W. Wert: ‘ Action by TV J'. Bussell against the First Nat. Bank of Hartselle to recover money paid by it on a check drawn by him, endorsement of wkicb was forged.

Heard before Hon. Samuel Browne. Assumpsit by N. B. Borden & Co. against tlie Vinegar Bend Lumber Co. There was judgment for plaintiff and from a judgment granting the defendant a new trial, plaintiff appeals. The expression f. o. b. vessel meant delivery on the vessel without charge to appellant. — Elliott v. Howison, 146 Ala. 568; Nash v. Towne, 5 Wall. 689.

Heard, before Hon. C. W. Ferguson. Action by C. D. Ritter and another against F. L. Hoy and others on a garnishment bond. From a judgment for defendants, plaintiffs appeal. The court sustained defendant’s objection to the following question propounded by plaintiff to its witness Ritter: “State whether or not, at the time of the suing out of the garnishment in this case, you were a practicing attorney in Birmingham.

Heard, before Hon. S. L. Brewer. Action by G. F. Manly against the Dixie Industrial Company on account. Judgment for plaintiff and defendant appeals. The court erred in not sustaining demurrer to tbe count.— Smythe v. ■Dothan F. & M. Works, 52 South. 398. The defendant proved his pleas and was entitled to a verdict. — ■Gilliland & Son v. Martin. Counsel discuss assignments of error, but without citation of authority.

Heard before Hon. John T. Lackland. Assumpsit by the Montgomery Cooperage Company against J. D. and F. C. Carter. Judgment for defendants, and plaintiff appeals. The following is the deed referred to in the opinion: “State of Alabama, Marengo County.

Heard before Hon. B. M. Miller. Action by R. Miller against Carpenter, Baggett & Co. in which the Bank of Camden was served as garnishee. From a judgment refusing a motion to dismiss the cause, defendant appeals.

Heard before Hon. Saefold Berney. Action by George J. Clausen against Charles N. Davis, to recover commissions on real estate sale. Judgment for plaintiff and defendant appeals. The portion of the court’s oral charge excepted to was erroneous.- — ¡Stevens v. Bailey, et al., 149 Ala. 256; 33 Pac. 163; 29 S. W. 438.

Heard before Hon. Edward J. Girder. Action by A. Y. Sharpe against R. L. Simmons and others. From a judgment- for plaintiff, defendants appeal. The complaint was as follows: “Plaintiff claims of defendants the sum of |500 as damages for breach of a certain bond made by defendants on, to wit, the 27th day of October, 1905, in words and figures as follows: ‘State of Alabama, Marengo County. Know all men by these presents, that we, R. L. Simmons, C. B. Jones, L. E. Compton, 1).

Heard before Hon. Thomas W. C’oleman, Jr. Action by the City of Anniston against K. E. Garner to enforce a lien for special street… Held: that if the original resolution was not sufficiently specific, the subsequent resolution confirming it and providing for bithulithic pavement, cured any defect. Authorities supra. There was sufficient compliance with the provisions of section 1393 and 1394, Code 3907 as to the costs of improvement, and the special benefit accruing.

Heard before Hon. William H. Ti-iomas. Action by the Wertheimer-Swarts Shoe Company against S. B. Kent. From a judgment for plaintiff, on garnishment directed to the Montgomery Candy Company, the garnishee appeals.

Heard before Hon. D. W. Speake. Assumpsit by B. L. Tbomas against J. G. Smoot. Judgment for defendant and plaintiff appeals. The court erred in giving tbe affirmative charge. — Bates v. Harte, 124 Ala.' 427; Bomar v. Rosser, 128 Ala. 641; Bufforcl v. Rainey, 122 Ala. 565; Abbott c. Mobile, 119 Ala. 595; Cole v. Propst, 119 Ala. 99.

Heard before Hon. H. A. Pearce. Assumpsit by the Newton Loan & Banking Company against J. H. Reeves, brought on a lost note. Judgment for defendant and plaintiff appeals. Counsel discuss assignments of error relative to evidence, but without citation of authority in support thereof. He insists that the motion for new trial should have been granted. — Teague v. Bass, 181 Ala. 422; 140 Ala. 312; 143 Ala. 162; 160 Ala. 287.

Heard before Hon. Edward J. Gilder. Assumpsit by C. W. Allen against Lea Woodruff with garnishment in aid of suit to the Robertson Banking Company. From a judgment for garnishee plaintiff appeals. The deposit was a general and not a special deposit, and the relationship of debtor and creditor existed between Woodruff and the bank. — Ray v. Inc. Co., 34 Ala. 58; Alston v. The State, 92 Ala.. 124; Cwtis v. Pcurker, 136 Ala. 217; Clishy v. Mastin, 150 Ala. 132.

Heard before Hon. Saffold Berney. Action by J. B. Wolfe & Sons against J. T. McKeon. From a judgment for defendant, plaintiffs appeal. It was admitted that the Gamma Transportation Company, by J. T. McKeon, its president, executed the note to the plaintiffs, and that the Bay City Lumber Company, by Jos.

Heard before Hou. William H. Thomas. Action by Newell & Allen against the Port Huron Engine & Thresher Company. Judgment for plaintiff, and plaintiff appeals. The action was on the common counts and upon counts setting up special contracts on what are called “commission certificates,” issued by the defendant to the plaintiff.

Heard before Hon. T. L. Sowell. Action by the Merchants’ National Bank of LaFayette, Ind., against J. A. Norris, and another, upon a promissory note. Judgment for plaintiffs and defendant appeals.

Heard before Hon. B. M. Miller. Assumpsit by tbe Hunnieutt Lumber Company against the Mobile & Ohio Railroad Company. Judgment for defendant and plaintiff appeals. The action is on the common counts.

Heard before Hon. W. W. Haralson. Action by M. P. Couch against J. D. Hutchinson and others upon a bond executed by the defendants to A. J. Mason of a certain date, and due and payable on the 10th of December, 19.08. Judgment for defendants, and plaintiff appeals.

J. J. Cuktis. Assumpsit by Kendrick & McGough against W. H. Chafin. Judgment for defendant and plaintiffs appeal. The third count was sufficient in its allegation. — MoGeever v. Harris, 148 Ala. 503. The court erred in giving the affirmative charge for the defendant. — Garter v. Fulgham, 134 Ala. 234; Ala. S. L. Go. v. Slayton, 120 Ala. 259.

Appjcal, from Clay County Court. Heard before Hon. E. J. Garrison. Howard Turner ivas convicted of violating an ordinance of the town of Lineville, and he appeals. The original affidavit set forth probable cause for believing, and belief, that Howard Turner was guilty of the offense of selling, giving away, or otherwise disposing of whisky in the town of Lineville.

Heard before Hou. A. O. Lane. Petition for habeas corpus for the custody of an infant child brought by W. A. Brown, the paternal grandfather, against Mataline Brown, the mother. From a judgment denying relief the petitioner appeals. On the question of apprenticeship the power to attack it and evidence of it, counsel cites. — Brinster v. Compton, 68 Ala. 29; Cochran v. The State, 46 Ala. 714; Oiwen v. The State, 48 Ala. 328; Secs. 2907 and 3983, Code 1907.

Heard before Hon. W. W. Pearson. Trover by L. Lasseter against J. C. Deas. Judgment for plaintiff which was set aside, or was attempted to be set aside, and plaintiff appeals. Counsel discusses the issues involved in the original hearing of the case, 'but in view of the opinion it is not deemed necessary to set the same out. He insists, however, that the conrt erred in granting a new trial, and in support thereof, cites. — Chambers v., Morris, 144 Ala. 626.

Heard before Hon. Thomas W. Wert. Action in detinue by tbe W. T. Adams Machine Company against tbe South State Lumber Company for machinery. From a judgment granting insufficient relief, plaintiff appeals.

Heard before Hon. A. E. Gamble. Detinue by H. Y. Brooke against C. L. Kettler. From a judgment for plaintiff, defendant appeals.

Heard before Hon. John Pelham. Detinue by Charlotte Jones against John W. Journey for one horse. Judgment for the defendant, and plaintiff appeals. The question propounded to the witness Carr is aS follows: “Did not McKinley once make an offer to you, at the time he had the horse in possession, for you to mortgage your house and raise some money for the purpose of buying a horse from Mrs. Jones?” The other assignments of error sufficiently appear from the opinion.

Heard before Hon. D. W. Speake. Action by Rebecca Young against C. CL Campbell, to recover the penalty prescribed by statute for a failure to enter partial payments on the record of a mortgage after request therefor. Judgment for defendant and plaintiff appeals. The judgment entry shows that issue was joined upon the general issue, and this was conclusive as to the issues on the trial. — Providence B. L. I. Go-, v. Pruett, 157 Ala. 546.

Heard, before Hon. S. L. Brewer. Action by Angeliue Mays and another against Nixon Lucas for trespass. Judgment for plaintiff and defendant appeals. The bill of exceptions should he stricken for the reasons stated in the motion. —Hester v. Cantrell, 53 South. 1099; Rule 32, S. C. Pr.

Appeal- from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Action by Rosa Moore against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Charge 5, given for plaintiff, is as follows: “The court, instructs the jury that, if you find for plaintiff in this case, in estimating and fixing her damages, if you find she is permanently injured, you have the right to give damages for that as a distinct item.

Heard before Hon. W. W. Pearson. Action by Josie Johnson against the Central of Georgia Railway Company, for damages sustained while a passenger. Judgment for plaintiff and defendant appeals.

Heard before Hon. W. W. Pearson. Action by Ethel Barber, pro ami, against the Mobile & Ohio Railroad Company, for injuries received while a passenger. Judgment for plaintiff for $500, and defendant appeals. The following charges were refused to the defendant: (1) The general affirmative charge. (2) ¿nd (3) Affirmative charge as to first and second count.

Heard before Hon. H. P. Merritt, Special Judge. Action by Mrs. Bennie May Carlisle against the Central of Georgia. Railway Company for damages for injuries received in alighting from one of defendant’s passenger trains. Judgment for plaintiff and defendant appeals.

Heard before Hon. H. A. Pearce. Action by W. F. Clements against the Central of Georgia Railway Company for injuries alleged to have been received in alighting from the train, or while on the station ground of the defendant. Judgment for plaintiff and' defendant appeals. The court erred in the admission of evidence that the plaintiff asked the doctor to hold on, that his side hurt him so bad. — Stowers F. Go. v. Brake, 158 Ala. 647.

Heard before Hon. Charles A. Senn. Action -by W. D. Lawson, pro anai, against the Republic Iron & Steel Company, for damages for injuries while engaged in the duties of his employment. Judgment for plaintiff and defendant appeals. When a witness swears to a fact, it may be shown on his cross examination that he urns mistaken, or was stating a mere conclusion. — So. Ry. Go. v. Hall, 145 Ala. 227; B. R. L. & P. Go. v. Ellard, 135 Ala. 445; Patterson v. Goal-brook', 29 N. H. 94.

Heard before Hon. C. P. Almon. Action by Walter McCrory' against tbe St. Louis & San Francisco Railroad Company, for damages for injuries received while engaged in the duties of his employment. .Judgment for plaintiff and defendant appeals. One cannot avoid the effects of a release by showing an unfulfilled promise to give him employment. This might be ground for an action for breach of contract, but not for avoiding release for fraud. — 6 Thomp. on Neg. Sec. 7375.

Heard before Hou. B. M. Miller. Action by M. E. Martin against tbe Selma Street & Suburban Railway Company for tbe death of- a dog. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Samuel B. Browne. Action by L. B. George against the Mobile Light & Railroad Company for ,*150.00 damages, for the negligent killing of an.animal. Judgment for plaintiff, and the defendant appeals. The complaint claimed exactly $50.00 in a suit for injury to an animal, and the court was without jurisdiction to hear and determine the cause; hence, the judgment is void. — McClure v. Leigh, 30 Ala. 208; Sec. 3255, Code 1907; Sec. 143, Const. 1901.

T-Ieard before Hon. W. W. Haralson. Action by R. P. Means against J. A. Morgan, for damages for killing a hog. Judgment 'for defendant and plaintiff appeals.

Heard before Hon. James J. Ray. Action by I. S. Grant against the Birmingham Railway, Light & Power Company, for failure to promptly deliver baggage. . Judgment for plaintiff, and defendant' appeals.

Heard before Hon. B. M. Miller. Action by W. B. Barron against tlxe Mobile & Ohio Railroad Conxpany for failure to deliver a carload of lumber. Judgment for defendant^ and plaintiff appeals. The complaint sufficiently appears in the opinion.

Heard before Hon. Thomas W. Wert. Action by A. J. Chappell against the city of New Decatur, for injuries sustained by falling through a defective bridge or walkway in said city. Judgment for plaintiff and defendant appeals. The city did not have power to waive the provision of section 1275, Code 1907.

Heard before Hon. Charles A. Senn. ■ Action by Thomas Means against' the Wells Amusement Company for damages for being ejected from a jhayhou.se, and assaulted' and otherwise injured. Judgment ' for plaintiff and defendant appeals. The court was in error in permitting Going to testify that he has never heard of the plaintiff ever being drunk or drinking at all.

Heard before Hon. William H. Th'omas. Action by Oscar G. Irwin against the Western Railway of Alabama. From a judgment for plaintiff, defendant appeals.

' Heard before Hon. O. W. Ferguson. Action by C. W. Wilson against the Birmingham Water Works Company for damages for cutting off his Avater supply. Judgment for plaintiff and defendant appeals. Under the facts in this case the court Avas in error in saying that the plaintiff might, if the jury so decided, be awarded punitive damages. — Folk’s .case, 115 Ala. 287; C. P. Ry.

Heard before Hon. C. W. Ferguson. Action by Willie Murphy,.a. minor, against the Birmingham Railway, Light & Power Company, for damages for injuries sustained by. coming in contact with an electrically charged wire left hanging in the street. Judgment for plaintiff and defendant ' appeals. The court erred in refusing affirmative charge as to the 2nd count. — Sou.

Appeal, from Montgomery City Court. Heard before Hon. William H. Thomas. Action by the Kratzer Ice Cream Company against the Alabama Storage & Ice Company for damages for false representation, and for breach of contract. Judgment for plaintiff and defendant appeals. Counsel insist that plaintiffs failed to prove the allegation of the 3rd count upon which count the judgment was) based.

Heard before Hon. Charles A. Senn. Action'by M. L. Norris against the Birmingham Railway, Light & Power Company for assault and battery/ Judgment for plaintiff, and defendant appeals.

Heard before Hon C. C. Nesmith. Action by Dave M. Griswold against Claude D. Bitter, for damages for assault and battery. Judgment for the plaintiff and the defendant appeals. Counsel discuss demand for jury, but without citation of authority. They also discuss assignments of error relative to evidence, but without citation of authority. They insist that under the evidence, plaintiff was not entitled to recover, and that this court ought to reverse and remand or. render.

Heard before Hon. Samuel B. Browne. Action by Oron Overton against Albert P. Bush, for damages for injuries to person and property growing out of a collision between an automobile and motorcycle. Judgment for defendant and plaintiff appeals.

Heard, before Hon. C. W. Ferguson. Action by W. R. Keiley against the Birmingham Water Works Company for damages for shutting oft water. Judgment for plaintiff and defendant appeals.

Heard before Hon. Thomas W. Wert. Action by Robert D. Obunn against Jobii Fairbanks in trespass, trover, and in case. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Charles A. Senn. Action by Oscar L. Camp against the Birmingham Railway, Light & Power Company, for damages sustained to a buggy in being struck by a car. Judgment: for plaintiff and defendant appeals. The court erred in giving plaintiff the general charge as the evidence was in conflict and had. tendencies to support the contention of the defendant. —B. R. L. £ P. v. Gamp, 161 Ala. 456.

Heard before Hon. C. W. Ferguson. Action by J. T. Martini against the Birmingham Water Works Company, for damages for nuisance. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Clay County Court.</p> <p>Heard before Hon. E. J. Garrison.</p>