Volume 200 — Alabama Reports

L. Brewer, Judge. Action by Rudolph Gilbert against the Southern Bell Telephone & Telegraph Company, for injuries to person and property. Judgment for defendant, and plaintiff appeals.

<p>1. Trial <&wkey;139(l) — Question eor Jury — Motion to Exclude Evidence.</p> <p>Where there is even a modicum of legal evidence before the jury, a motion to exclude all of plaintiff’s evidence is improper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341.] (</p> <p>2. Evidence <&wkey;78 — Presumptions — Operation and Eeeect — Presumption Against Spoliator.</p> <p>In statutory ejectment, plaintiff’s evidence tending to show that the conveyance sustaining his action was in form a deed, bearing certain signatures, that it was a deed, and had been delivered to him, and that he was named as grantee therein, etc., together with evidence that defendant had purposely destroyed or caused to be destroyed such instrument, made a prima facie case, since the rule of presumption against the spoliator was applicable.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 98, 100.]</p> <p>3. Evidence <&wkey;78 — Presumption — Spoliation oe Evidence.</p> <p>Against a party who has purposely and wrongfully destroyed documentary evidence that the spoliator knows is pertinent and material to the interest of his opponent, whether an action is then pending- or not, a rebuttable presumption arises unfavorable to the spoliator, such rule being the result of common experience and judgment that men will not ordinarily destroy evidence beneficial to themselves, and that it is proper to attribute to the spoliator a prima facie knowledge on his part that the truth manifested by the instrument would operate against him.</p> <p><&wkey;J?or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 98, 100.]</p> <p>4. Evidence <&wkey;78 —Presumption —Spoliation oe Evidence.</p> <p>The measure and quality of the evidence descriptive of the instrument necessary to afford the bases for an application of the presumption against the spoliator are that there should be presented, by him whose right or interest is supposed to be prejudiced by the destruction of the instrument, evidence of a general character, reasonably calculated to invite the conclusion that an instrument of the type in question existed, and that it was purposely destroyed or caused to be destroyed by the alleged spoliator, and strict proof of the contents of such an instrument, so destroyed, is not required, for if a higher degree of proof were to be exacted, the rule of the maxim would be without practical service.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 98, 109.]</p> <p>5. Ejectment i&wkey;95(3) — Burden oe Prooe.</p> <p>Where plaintiff in statutory ejectment showed he was one of the heirs at law of his parents and had been excluded from the enjoyment of the common inheritance by his defendant brother, he made a prima facie showing of his tenancy in common, throwing the burden on defendant to bring- forward evidence of a conveyance to him to justify such exclusion.</p> <p>[K'd. Note. — For other eases, see Ejectment, Cent. Dig. § 284.]</p> <p><§=»For other cases see same topic and KEY-NUMBER in all Key-Numfcered Digests and Indexes»</p>

<p>Appeal from Chancery Court, Cullman County; James E. Horton, Jr., Chancellor.</p> <p>Suit by Gray & Dudley Hardware Company against W. L. Guthrie, as trustee, and others. From decree for respondents, complainant appeals.</p>

P. Almon, Judge. Suit by Flippo & Son against J. R. Lauder-dale. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449.

<p>1. Detinue <S=>7 — Demand.</p> <p>A demand for the property before suit brought is not essential to authorize a plaintiff to maintain detinue unless such demand is necessary to change a rightful possession into an unlawful detention.</p> <p>[Ed. Note. — For other eases, see Detinue, Cent. Dig. § 12.]</p> <p>2. Detinue &wkey;>7 — Demand.</p> <p>If the relation of bailor and bailee does not exist between the parties in respect of the property in question, the service of the writ in detinue is a sufficient demand; but, if the plaintiff would recover damages for the detention rior to the institution of his action, he must ave made a special demand for the possession of the property.</p> <p>[Ed. Note. — For other cases, see Detinue, Cent. Dig. § 12.]</p> <p>3. Chattel Mortgages <&wkey; 161 — Right to Possession oe Property — Eeeect oe Subsequent Extension Note.</p> <p>The authority to seize the property given by a mortgage stipulation was not extinguished by a subsequent extension note, expressly stating it did not release the mortgage; such note showing it was a mere supplementary assurance.</p> <p>[Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. §§ 282 — 285.]</p> <p>4. Chattel Mortgages &wkey;>159 — Title to Mortgaged Property.</p> <p>Unless the mortgagor reserves" the fight to the possession of the mortgaged property until default, the effect of a chattel mortgage is to at once vest in the mortgagee the title to, and right to immediate possession of, such property.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 272-281.]</p> <p><®=»For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

C. Brickell, Judge. Action by T. F. Wyley against the Southern Railway Company for damages for the death of a horse. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450, § 6. The facts sufficiently appear. The following are the charges refused to defendant: (5) Affirmative charge for defendant.

Petition by the State of Alabama, on the relation of the Attorney General, directed to the- Honorables John H. Miller, John O. Pugh, and Charles W. Ferguson, as Judges of the City Court of Birmingham, requiring them to vacate an order of injunction issued by them on a former occasion.

A. Pearce, Judge. Detinue by J. E. Ellis against Amanda Hesk and others, wherein a claim was interposed by Amanda Hesk and others. From judgment for plaintiff, claimants appealed to the. Court of Appeals, and the cause was transferred to the Supreme Court.

<p>1.Apijeal and Error <&wkey;103 3 — Mortgages &wkey;481 — Reference—Exception to Report.</p> <p>In determining the amount of allowances to a receiver, his attorney and the trustee in a deed of trust, a chancellor, when justice so required, could look to the whole record, including the register’s report and the evidence taken on the reference, and make such decree as he deemed just in respect to the contested items, and the Appellate Court has the same right.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3993-3995; Mortgages, Cent. Dig. § 1400.]</p> <p>2. Appbai. and Error <&wkey;1017 — Review-Contested Report of Register.</p> <p>Although the presumption on appeal is that a register’s report is correct, it is competent for the appellate court, in the case of questions as to the value of services rendered by a receiver, his attorney and a trustee in a deed of trust, to exercise its independent judgment and_ determine the contested items upon consideration of the whole case as developed on the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig’. §§ 3911, 3961, 3996-4005.]</p> <p>3. Evidence <&wkey;50S(4) —Expert Evidence-Question of Fact.</p> <p>The court is not bound to accept tho opinions of witnesses as to the value of services rendered by a receiver, his attorney and trustee in a deed of trust.</p> <p><gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Barbour County; Judge S. Williams, Judge.</p> <p>George Gray was convicted of murder, and appeals.</p>

<p>Exceptions, Bill oe <&wkey;55(l) — Establishment-Statute .</p> <p>Acts Í915, p. 816, amending Code 1907, § ■3022, providing for establishing bills of exceptions, where the trial judge dies, resigns, is sick, etc., is not an exclusive remedy, but Code 1907, § 3021, still governs where the trial judge retains office and could, but refuses to, approve a bill properly' presented.</p> <p>[Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 90.]</p>

A. Pearce, Judge. Detinue by J. W. Capps against Monroe Lisenby. ' From a judgment for plaintiff, defendant appealed to the Court of Appeals, and the case was transferred to the Supreme Court. Transferred from .Court of Appeals under Acts 1911, p. 450, § 6. Plaintiff amended his complaint by adding count 2 in trover and count 3 in case, which amendment was allowed over the objection of defendant.

<p>Courts &wkey;190(8) — Review — Questions oe Fact.</p> <p>If decree of city court is passed after hearing, where witnesses were examined ore tenus, the Supreme Court cannot disturb it, unless plainly erroneous.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3381.]</p>

H. Benners, Chancellor. Bill by Mrs. Nora Cross against R. B. Cross. Prom a decree overruling a demurrer to the bill, respondent appeals. Appellee filed this bill against the appellant, seeking alimony without divorce.

<p>1. Chattel Mortgages (&wkey;229(l) — Recovery oe Property — Right to Aejtrmative Charge.</p> <p>In a mortgagee’s suit in detinue against a third person for the recovery of a horse and' mules, where there was evidence on plaintiff’s part tending to show that the mortgagor was in possession of the property, claiming it, at the time of the execution of the mortgage, and defendant offered proof tending to show that such was not the case, defendant was not entitled to. the affirmative charge requested.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 479, 480, 482, 483.]</p> <p>2. Chattel Mortgages <&wkey;229(3) — Recovery oe Property — Evidence.</p> <p>In such suit, where plaintiff relied- for recovery upon its mortgage, neither the execution of which nor that its consideration was past due and unpaid was controverted, the court properly excluded evidence offered by defendant as to the conversation between the mortgagor’s wife and plain tiff's agent when the horse and mules were carried to defendant.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 481, 483.]</p> <p>tfteol-’or other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes</p>

<p>Appeal and Error <&wkey;>1095 — Review—Findings and Conclusions.</p> <p>The Supreme Court will not review or revise the findings of fact by the Court of Appeals, or the application of the law to the facts by such court.</p> <p>. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ '4268, 4329, 4339.]</p>

Horton, Jr., Chancellor. Bill by Pleasant Grove Local Union No. 204 of the Farmers’ Educational & Co-operative Unioi} of America, and certain individuals, against Z. M. Teal and others, to- set aside and annul the transfer of certain stock, and to reissue same in the name of complainant, to determine who are interested in the shares, and their respective interest, and to require respondents to pay into court the full amount of dividends received.

<p>Equity <@=^419 — Decree — Setting Aside —Time—“Final Decree.”</p> <p>Where, on their bill to prevent foreclosure of a mortgage and to redeem, complainants had a decree pro confesso before the register, and' later the cause was submitted to the chancellor for decree, under Code 1907, § 3164, as amended by Acts 1915, p. 606, whereupon a decree was rendered declaring complainants’ right to redeem and ordering a reference for tlio ascertainment of any balance due on the mortgage, there was no final decree within Acts 1915, p. 135, providing that the chancery court shall not have the power to open or set aside any final decree after the lapse of 30 days from the date’of its rendition, since, so long as the ultimate relief remains in the keeping' of the court, it may recast its interlocutory decrees.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 972-985.</p> <p>For other definitions, see Words and Phrases, First and .Second Series, Final Decree or Judgment.]</p> <p><S£s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Smith, Chancellor. Suit by Jessie Long against M. Van Heuvel. Erom a decree for plaintiff, defendant appeals. The bill of complaint in this case is filed by Jessie Long (appellee), the grantor in a conveyance of lands absolute on its face, against the grantee, Martin Van Heuvel (appellant), and ten parties to each of whom Van Heuvel sold portions of said lands.

A. Sharpe, Judge. Injunction by the State, on relation of Hugo L. Black, Solicitor, against the Southern Express Company, and others.

A. Pearce, Judge. Suit by T. M. Borland against the Atlantic Compress Company. Prom a judgment for defendant, plaintiff appeals. This was a suit brought by the appellant against the appellee, seeking to recover of the appellee damages for the destruction of the.lien that appellant had on certain cotton.

<p>1. Release &wkey;>53— Avoidance —Pleading and Proof.</p> <p>Where defendants, in an action to recover money, set up a release, and plaintiff introduced no replication in avoidance, evidence that the release was secured by fraud practiced by one defendant was improperly admitted.</p> <p>[Ed. Note. — Eor other cases, see Release, Cent. Dig. § 93.3</p> <p>2. Sales &wkey;437(2) — Breach of Warranty-Recovery by Buyer.</p> <p>Where an engine sold under warranty proved defective and was returned within the time provided by the contract, the buyer could# recover from the seller such sums as he had paid up to that time, but could not recover money, subsequently paid in consequence' of fraud, in the absence of a count to that effect.</p> <p>[Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 1251, 1252.3</p> <p>3. Sales <&wkey;397 — Breach of Warranty — Return of Property — Burden of Proof.</p> <p>In an action to recover money paid for an engine which proved not to be as warranted, the burden was on plaintiff to prove that the engine was seasonably returned to defendants.</p> <p>[Ed. Note. — Eor other case, see Sales, Cent. Dig. § 1136.]</p> <p>4. Appeal and Error <&wkey;1042(2) — Harmless Error — Pleading—Evidence.</p> <p>Where evidence that the buyers returned an engine to defendants as agents for the manufacturer rather than as sellers was admissible under a general traverse to the counts, alleged error in striking pleas setting up this theory was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4111; Pleading, Cent. Dig. § .1172.]</p> <p>5., Sales <&wkey;391(l) — Breach of Warranty-Defense.</p> <p>The institution of an action against the manufacturer of an engine which proved not to be as warranted did not exonerate the sellers from liability for .the purchase money paid, where it did not appear that they were prejudiced thereby.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1110, 1115, 1117, 1118, 1121.]</p> <p>6. Sales <&wkey;692 — Breach of Warranty — Return of Property — Estoppel.</p> <p>Where the buyer is induced by false representations of the seller to return the engine which has proved not to be as warranted to the seller as agent for the manufacturer, the seller is estopped, in an action to recover the purchase money paid, to question the return as a compliance with the contract.</p> <p>[Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 1128-1131.]</p> <p>7. Principal and Agent &wkey;>136(l) — Liability of Pretended Agent.</p> <p>A pretended agent contracting without authority renders himself liable to the other contracting party unless he at the time makes a full and honest disclosure of the nature and extent of his authority, so that the other contracting party may be said to have acted on his own judgment as to such authority.</p> <p>[Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 476,’477.]</p> <p>©=5oFor other oases see same topic anfl KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

L. Brewer, Judge. Forcible entry and detainer by W. B. Prater against J. J. Lessley. Judgment for plaintiff for a portion of the land, and defendant appeals.

Equity Court, Mo^ bile County; Saffold Berney, Judge. Assumpsit by William H. Martin against W. A. Powell. From a judgment for defendant, plaintiff appeals. The substance of count 2 sufficiently appears.

C. Crow, Judge. Suit by Mrs. L. B. Arthur against J. I. Sarratt. Judgment for plaintiff, and defendant appeals. Suit by appellee against the appellant for the recovery of rent claimed to be due for certain business property located in Birmingham, xlla. The trial was had before the court without a jury, resulting in a judgment for plaintiff, from which defendant prosecutes this appeal.

Browne, Judge. Ejectment by the Lyon Company against Sarah Crane. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear.

<p>Appeal fro-m Chancery Court, Jefferson County; A. H. Benners, Chancellor.</p> <p>Suit by Charles A. Olson against Lnla 01-spn. From decree for complainant, respond-ent appeals.</p> <p>The bill is by a grantor to cancel a deed executed by Mm to Ms wife on the sole ground of fraud practiced by her and her father in procuring its execution.</p> <p>The facts alleged are that complainant and respondent are husband and wife; that they intermarried on July 3, 1900, and lived together as husband and wife until August, 1907, when respondent, refusing to live with ■complainant longer, left him, and filed against Mm her bill for divorce on the grounds of cruelty and habitual' drunkenness. Before any decree was rendered or hearing was had in the divorce proceeding, complainant and his wife entered into a written agreement by the terms of which complainant should convey to respondent the land in question, would quit drinking, and admitted that he was guilty of the charges alleged in the bill and that his wife was not at fault in the separation; and respondent, in consideration of the concessions and undertakings on the part of comxfiainant, promised to return and live with him as Ms wife and dismiss the divorce suit. It was, however, agreed that if complainant should ever thereafter at any time be cruel to respondent, or return to the habit of drinking, Ms wife should be at liberty to leave him again and carry their child with her. In accordance with this agreement re-' spondent did return to complainant, and lived with him as his wife, for about a month. She then left Mm again, and filed another bill for divorce.</p> <p>The bill in the instant case alleges (but as a conclusion of the pleader only) that this whole agreement to return to eomplaihant, with the stipulation that he convey the property to respondent, was a fraud and a conspiracy conceived by respondent and her father to defraud complainant of his land, and that respondent never intended to live with complainant except long enough to secure the land.</p> <p>The bill makes the written agreement and the deed exhibits to the bill, and asks that the deed be canceled, and that respondent be restrained or enjoined from conveying or exchanging the lands in question.</p> <p>Respondent demurred to the bill, assigning various grounds. The chancellor overruled the demurrer, and respondent appeals.</p>

S. Williams, Judge. Action by R. F. Boswell against the Cen-' tral of Georgia Railway Compaziy. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals. Suit by the appellee against the appellant for the recovery of damages for the death of a dog owned by plaintiff, 'alleged to have been negligently killed by the defendant while i-unning alozig the line of track of said railway.

<p>Appeal from Chancery Court, Dale County ; Oscar S. Lewis, Chancellor.</p> <p>Action by W. S. Gamer, trustee in bankruptcy, against J. C. Henderson. From a decree overruling demurrers to the bill, the defendant appeals.</p> <p>The bill in this cause shows that the Ariton Mercantile Company, a domestic corporation, on October 7, 1915, executed a deed of assignment for the benefit, of creditors, and that on October 8,1915, petition was filed by certain creditors in involuntary bankruptcy in the District Court of the United States at Dothan, Ala., and that on October 80, 1915, said corporation was duly adjudged a bankrupt by said court, and W. S. Gamer duly appointed as trustee in bankruptcy of said estate, qualified as such, and entered upon the discharge of his duties as such trustee, and that said court before the filing of this bill entered an order authorizing said trustee to prosecuté this suit, which was done on behalf of said bankrupt, its estate, and its creditors.</p> <p>The bill further shows:</p> <p>That on April 3, 1906, said Ariton. Mercantile Company was incorporated under the' laws of Alabama for the purpose of carrying on the mercantile business, borrowing and lending money, buying and selling property, etc., with its principal office at Ariton, in Dale county, Ala., with an authorized capital stock of $12,500, divided into 125 shares of $100 each, beginning business with a capital of $3,100. That its stock was originally subscribed for as follows: W. C. Windham, 65 shares; J. C. Barnes, 20 shares; J. C. Henderson, respondent in this cause, 20 shares; and E. R. Phillips, 20 shares. That each shareholder was elected a director of the corporation, with W. C. Windham, as its president and general manager, and J. C. Barnes as secretary and treasurer, and, as thus organized, entered into business. That said Windham, Henderson, Barnes, and Phillips continued to act as directors of said corporation and to conduct its affairs as directors until January 6, 1913, when said directors. of said corporation pretended to purchase from said J. O. Barnes for treasury stock “the said 20 shares of the capital stock of said corporation owned by said J. O. Barnes as aforesaid, and he, the said J. O. Barnes, pretended to cease to be a stockholder in and director of said corporation, but that the said W. O. Windham, E. R. Phillips, and J. O. Henderson continued to act as directors of said corporation and to conduct its affairs as such until, to wit, the 19th day of February, 1913, when two of its directors, said W. C. Windham and E. R. Phillips, pretended for it to purchase the shares of capital stock of said J. C. Henderson in said corporation as treasury stock, as will he sot forth more in detail hereafter, and he, the J. O. Henderson, pretended that he cease to be a stockholder in and a director of said corporation.</p> <p>“Orator avers that after said corporation nad been engaged in business for about a year it did, on, to wit, the 1st day of January, 1907, increase its capital stock to $24,000, issuing to said J. C, Henderson 80 additional shares of the par value of $100 each, to Schloss & Kahn, Montgomery, Ala., 5 shares of the par value of $100 each, and the said W. C. Windham 35 shares of the par value of $100 each, thus absorbing the $11,500 increase in capital stock, and thus making the said J. C. Henderson to hold all 100 shares of the par value of $100, aggregating $10,000 of said capital stock.</p> <p>“Orator avers that the said incorporation never had in fact much in market value paid upon the subscriptions to and for its capital stock issued to its said stockholders; that, as orator was informed and believes, and upon such information and belief states and charges the fact to be, the said capital stock was mainly paid for by ragged remnants of stock-worn merchandise at largely inflated values turned over to it by the stockholders in payment of their stock, with only a small portion and percentage of the capital stock issued by it paid for . in cash, in consequence whereof and in connection with bad management of its affairs otherwise it was from the'beginning financially crippled and labored under disadvantages financially, and from a short time after its organization it became indebted in large sums to. divers persons, which continued to increase in number and amounts until on the said 19th day of Febi’uary, 1913, it owed between $60,000 and $100,000 to a vast number of creditors scattered about the country; that among these creditors were the National Park Bank of New York City, N. Y., to which it owed from $10,000 to $20,000, the Farmers’ & Merchants’ Bank of Troy, Ala., to which it owed from $5,000 to $10,000, the Ariton Fertilizer Company of Ariton, Ala., to which it owed about $20,000, to the Ariton Banking Company, to which it owed about $8,000 to $10,000, and a vast number of mercantile and divers and miscellaneous creditors, while at that time the total market value of all its assets was far less than $40,000, so that its capital stock was worthless, and it was insolvent. Orator avers that said .corporation had been insolvent for a long time before‘the said pretended sale to it by said J. C. Henderson of his said capital stock, and that its assets and estate were, on said 19th day of February, 1913, and had been for a long time prior thereto, a trust estate and fund and the said J. C. Henderson, as one of its said directors, did jointly with its other directors, and for a long time prior thereto had jointly with them controlled said estate and assets as a trust fund for the benefit of said corporation, or was in duty bound so to control them.</p> <p>“Third. That on, to wit,'said T9th day of February, 1913, two of said directors, viz. said W. C. Windham and said E. R. Phillips, met as such in said Ariton and made entries upon the minutes of said corporation in words and figures as follows: ‘Record- of a called meeting of the directors of the Ariton Mercantile Company held at Ariton, Ala., on the 19th day of February, 1913, at 10 o’clock a. m. Directors present: W. C. Windham and E. R. Phillips. The above constituting a quorum of directors, on motion duly made and carried, W. C. Windham was made chairman of the meeting, and E. R. Phillips, secretary. It is ordered that this company do buy for its treasury the stock of J. C. Henderson as a stockholder herein and pay him therefor the sum of $15,984 on January 1, 1914; and in consideration of a transfer to this company by said J. C. Henderson of his entire interest as such stockholder herein this company shall execute by its president its note to said J. C. Henderson, due January 1, 1914, for said sum of $15,984, and to secure the same shall transfer to said J. C. Henderson its 76 shares' of stock in the Ariton Banking Company and its 39 shares of stock in the Ariton Fertilizer Company, and shall execute to said J. C. Henderson by its president a mortgage on all its real estate, and W. C. Windham, president of the company, is hereby authorized to execute on behalf of this company the note and mortgage of said company to the said J. C. Henderson, above mentioned, attach the seal of this company thereto, and also "transfer to said J. C. Henderson, as security for said debt, said stock in said Ariton Banking Company, and in said Ariton Fertilizer Company, and include said stock in said mortgage. There being no further business, upon motion duly made and carried, the meeting adjourned. W. C. Windham, Chairman. E. R. Phillips, Secretary.’</p> <p>“Orator avers that no meeting of the stockholders of said corporation was hold at which any vote or action was taken upon or any authority given to said two directors' to make said entries upon the said minutes of the said corporation, and that as such directors they were wholly without authority or right to make the same; that they did not constitute a quorum or majority of the directors of said corporation; that its by-laws require four directors, and no action by said corporation was ever taken authorizing less than four directors prior to said 13th day of February, 1913, or on that day, and two of them was not a majority or quorum of the four required by the by-laws of said corporation to act in such matters as those appearing on said minutes and copied herein-above; and that the said two directors neither had any authority from any action of the stockholders taken as such in any meeting of them nor were they a sufficient number of directors to act as such and bind the corporation in the matters and things entered by them on said minutes as aforesaid. Yet orator avers that, pursuant, to tho directions given by said order of said two directors, said corporation, acting by its president, said W. O. Windham, pretended to receive from said J. C. Henderson his said 100 shares of its capital stock at the purchase price of $15,984, to be held by it as treasury stock, and in consideration thereof executed the note of said corporation to said J. C. Plenderson for said $15,984, due January 1, 1914; and, further, to secure the same transferred to said J. O. Henderson the 76 shares belonging to said Ariton Mercantile Company of the capital stock of the Ariton Banking Company and its 39 shares of the capital stock of the Ariton Fertilizer Company, each of the par and the market value of $100 a share, and also executed to said J. C. Henderson a mortgage upon all its real estate, consisting of and comprising- its storehouse and lot, warehouse and lot, stables and lot, and dwelling house and lot, all known as tho Ariton Mercantile Company property, situated in the town of Ariton, in Dale county, Ala., and orator avers that said -stock and said real estate was at the timo of the aggregate market value of about $18,000, and was nearly or quite one-half of all the estate and assets at the time belonging to said corporation, Ariton Mercantile Company. Orator further avers that at the annual stockholders’ meeting of said Ariton Mercantile Company held on the 1st day of July, 1913, there was an election of directors of said corporation, and said W. C. Windham, said E. R. Phillips, and one E. K. Windham, who had in the meantime become a stockholder in said corporation, were elected its directors; that thereafter’, on, to wit, the 6th day of March, 1914, sáid last-named directors held a call meeting of their board at Ariton, Ala., at which meeting they caused the following entries to be made and entered upon the minutes of said corporation: ‘Record of call meeting of the directors of the Ariton Mercantile Company, held at Ariton, Ala., on the 6th day of March, 1914, at 7:30 o’clock, p. m. At a meeting of the directors o£ the Ariton Mercantile Company at its storehouse in Ariton, Ala., there being present W. C. Windham, E. R. Phillips, and E. K. Wind-ham, being all the directors of said company, on this the 6th day of March, 1914, it is ordered that, for and in consideration of $15,984, the president and secretary of this company sell and convey to J. O. Henderson, by warranty deed of conveyance, the brick storehouse, stables, and warehouse lots and dwelling- house and lot belonging to this company, and all situated in Ariton, Ala. It is further ordered that ithe seal of this company bo attached to said deed of conveyance, the same being in foreclosure of -the mortgage held by said J. 0. Henderson upon said property, that also the president of this company for same consideration sell, transfer, and convey unto the said J. C. Henderson 50 shares of the paid-up capital stock held by said company in the Ariton Banking-Company, and .that said transfer bo made upon the books of said banking company, and that a certificate of stock "therefor be issued by said banking company to said J. O. Henderson. [Signed] W. G. Windham, President and General Manager. E. R. Phillips, Vice President and Assistant Manager.’</p> <p>“Orator avers that shortly thereafter the said corporation, acting through its president, said W. O. Windham, and its secretary, said- E. I-C. Windham, conveyed to said J. O. Henderson its brick storehouse and lot, stables and lot, warehouse and lot, and dwelling house and lot, in pretended foreclosure of said mortgages, and transferred and conveyed unto said J. O. Henderson the said shares of capital stock in said banking company. Orator avers that the said Ariton Mercantile Company, being so insolvent on said 19th day of February 1913, was without the legal and equitable right to purchase said stock of said J. G. Henderson, to be held ■by it as treasury stock, and that its said directors were without authority in law' to order the purchase thereof for said purpose, and that said corporation was without the right in law to sell to said J. O. Henderson the said shares of capital stock in said banking company, or the said shares of capital stock in said fertilizer company, or the said real estate or any part thereof, and that said directors were without the authority m law to order the same or any part thereof sold to him in payment for his said capital stock, and that said president and secretary either or both of them were without authority i^ law to convey to said J. O. Henderson either the said shares of capital stock in said banking company and in said fertilizer company -or said real estate or any part thereof, and orator avers that the attempt by said corporation and its -said officers to convey its said property, real and personal, as aforesaid, to said J. G. Henderson, was void and did not operate to pass the title to him. Orator avers, however, that upon the face of the record and as the matters appear thereon the said title does pass to said J. O. Henderson to said property. He avers, however, that if he is mistaken in' his allegation that the title to said property or any part thereof did not pass to said J. C. Henderson by said convey■ances or any of them, that the parties thereto intended thereby to do so, and did in fact thereby hinder, delay, and defraud the said creditors of said Ariton Mercantile Company, most of whom it still owes the debts then owing by it to them. Orator further avers that the sale by said J. C. Henderson of his said capital stock therein to said Ariton Mercantile Company and the taking over by him of the said real and personal property in consideration of his surrender to it of his said capital slock was in breach of his duty as trustee, as aforesaid, in consequence whereof orator avers that he took and held and holds so much as he yet does hold of said property as trustee de son tort and ex mal officio, with resultant duty fastened and resting upon him as such trasteo to account in this proceeding to orator as trustee in bankruptcy of said Ariton Mercantile Company, as hereinafter appears, for all of said property, real and personal, and for all the rents, incomes, profits, usufructs, interest, dividends, and benefits received or which he, if he had cared for said property as in duty bound to do, he would have received therefrom from the time he received the same till now and till he shall finally .account therefor in this proceeding,; and that whether the said title to said property passed to him or not by said attempted or pretended or de facto conveyances and transfers to him, in either event ho as such trustee de son tort and ex mal officio is in equity and duty bound in this proceeding so to account. Orator avers that said real estate has a large rental value, viz. $1,000 a year and upwards, and that the said capital stock has been paying large dividends, viz. 10 cents on the dollar of par value a year or more, and that said J. G. Henderson has received said rents and dividends annually ever since said property was so transferred and conveyed to him, and that he has said real estate now rented or leased upon contracts which provide for him to receive like and greater sums therefrom this year.</p> <p>“Fourth. Orator avers that said Ariton Mercantile Company, being insolvent, as aforesaid, continued to be so insolvent until and including the 7th day of October, 1915, when there was held a meeting of its stockholders in Ariton, Ala., at which meeting said stockholders caused to be entered upon the minutes of said corporation the following: ‘At a meeting of the stockholders of the Ariton Mercantile Company on this the 7th day of October, 1915, there -being present W. O. Windham, E. R. Phillips, Sr., and E. K. Windham, it is ordered that the president of this company execute to Fox Hemjerson a deed of assignment in trust conveying all the property of this company for the equal benefit of all creditors, subject to existing priorities. W. O. Windham, President. E. R. Phillips, Secretary. E. K. Wind-ham. Witness: M. W. Thornton.’</p> <p>“Orator avers that said order was passed as indicated therein directing said assignment to said Fox Henderson therein named. Orator avers that, pursuant to said order, of said stockholders, said W. C. Windham, as president of said corporation, executed said assignment to said Fox Henderson, and that thereafter, on the 8th day of October, 1915, a petition- in involuntary bankruptcy was filed by certain of the creditors of said corporation.”</p> <p>Paragraph 6 of the bill avers the employment of attorneys to prosecute the suit, and seeks to have their charges for services allowed as a charge against the fund involved in the-suit out of the proceeds recovered.</p> <p>In the prayer of the bill a reference is sought to ascertain the value of the property conveyed to said, J. O. Henderson, the amount of rents, dividends, interest, and benefits received by him since he acquired the same, what waste, if any, he has - committed, an accurate description of the property conveyed to said Henderson, and what is a reasonable attorney’s fee for services. The said prayer continues as follows :</p> <p>“That said J. O. Henderson be required to account in all said matters referred to said, register, and be charged as trustee, as aforesaid, for all rents, dividends, interests, and benefits which either he has received from said property so received by him or any portion thereof, or which he would have received if he had cai-ed for and managed the property as he should have done; that if he has disposed of the property or any portion thereof, or has allowed the same to become injured, or has committed any waste or devastavit as to said property or any portion thereof, that he be required to account for so much thereof as he has parted with and for such waste, injury, or devastavit as he has committed or has allowed; that personal judgment be rendered against hirq in all said matters . wherein such judgment may be or become necessary to the' doing of complete equity in the premises; that he be adjudged to have received said property as trustee de son tort and ex mal officio, and as such held to a strict account in the premises to your orator in all said matters; that all said property so received by said J. G. Henderson which he has not disposed of and which is now under his control be sold under the orders of this court and converted into money, to the end that orator, as said trustee, may apply the same as in equity he should do; and for such other and fdrther relief, general and special, as unto your honor may seem meet and proper; also that all title to any and all of said property so received by said J. O. Henderson from Ariton Mercantile Company, if any title to any of it passed to him by virtue of the matters herein alleged, be by this court divested out of him and invested in orator as said trustee.”</p> <p>There were numerous assignments of demurrers to the bill, among them that it does not appear that any fraud was committed by the respondent on the creditors of the Ariton Mercantile Company, and that it does not appear that the conveyances were made by the Ariton Mercantile Company to respondent with actual fraudulent intent, or with the purpose of hindering, delaying, or defrauding the creditors. Another assignment of demurrer takes the point that the bill does not show that the respondent had knowledge of the insolvent condition of said mercantile company at the time of making said property or said conveyance, nor that he had notice of the alleged insolvent condition of said Ariton Mercantile Company at that time.</p> <p>These were the assignments of error treated by the court as the ones having been argued by counsel for appellant. The demurrers were overruled, and from this decree the respondent prosecutes this appeal.</p>

Disque, Judge. W. D. Pinckard and another, a partnership, recovered a judgment against D. C. Abel, and had it levied upon certain personal property, including a mule, and a certain mill outfit. Claim to one-third interest in the mill outfit and in the mule was interposed by O. R. Abel, and there was jury and verdict for claimant, from which plaintiff appeals. Transferred from the Court of Appeals under section 6, .Acts 1911, p. 449.

Pugh, Judge. Action by L. L. Smith against the Western Union Telegraph Company for damages for failure to transmit and deliver a telegram. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. The plaintiff was the sender of the message, and it was sent from Birmingham, Ala., to plaintiff’s father in Georgia. It contained the news of the death of the sender’s daughter, and requested the grandparents to come.

Coleman, Jr., Judge. Suit by the Louisville & Nashville Railroad Company against the Kilby Car & Foundry Company. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals. This is a suit by the appellant, Louisville & Nashville Railroad Company, against the Kilby Car & Foundry Company, to recover $785 for money paid by the plaintiff for the use of the defendant on the 14th day of November, 1913.

L. Sowell, Judge. Action by J. L. Gallagher against Perry & Walden in assumpsit. Judgment for plaintiff, and defendant appeals. Transferred from the Churt of Appeals under section- 6, p. 449, Acts 1911.

<p>Appeal from Law and. Equity Court, Walker County; T. L. Sowell, Judge.</p> <p>Assumpsit by the Citizens’ Bank of Lexington, Tenn., against L. Weinstein, surviving partner, etc. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449.</p> <p>The several counts of the complaint declare as follows:</p> <p>Plaintiff claims of defendant the sum of $300 due by their promissory note executed and payable to the American Manufacturing Company at Lexington, Tenn., which said note was executed by defendant on May 4, 1911, and payable as follows: In sums of $50 each, payable two, three, four, five, six, and seven months after date, respectively, which said sums, with interest thereon, are duo and unpaid. And plaintiff avers that said notes were duly transferred by the American Manufacturing Company to plaintiff for a valuable consideration before maturity, and is now the property of plaintiff.</p> <p>By amendment, to each count the following was added:</p> <p>Plaintiff avers said notes were purchased by plaintiff from the American Manufacturing Company for a valuable consideration, before maturity, and in due course of business, and without notice of any defense thereto.</p> <p>By further amendment it is averred that said note was payable to the order of the American Manufacturing Company at Lexington, Tenn., that plaintiffs are the owners and holders of said notes, and that plaintiff purchased said note from the American Manufacturing Company for a valuable consideration before maturity in good faith in due course of business, and without any notice or knowledge of any defense thereto or against the same, and plaintiffs aver that the American Manufacturing Company, the payee of said note, indorsed, transferred, and delivered said note to plaintiff.</p> <p>The following are the pleas referred to:</p> <p>(3) “The American Manufacturing Company, mentioned in the complaint is indebted to defendants in the sum of $500 for the broach of the condition of a bond or agreement made by said American Manufacturing Company on May 12, 1911, payable to defendants in the sum of "$500, with the condition that in consideration of an order which defendants caused to be sent to the American Manufacturing Company for a piano contest, said American Manufacturing Company, guaranteed that the merchandise sales of defendant would be. increased $7,001) for the 12 months following the execution of said bond or agreement, over the sales for the 12 months next preceding the execution of said bond or agreement. And defendant says that the condition of said bond or agreement has been broken by the American Manufacturing Company in this: The merchandise sale of defendants was not so increased as provided in said bond or agreement, and defendant here offers to set off the above amount against the claim of defendant.” Plea 4 in legal effect is practically the same as plea 3, except that they say there was a guarantee of an increase in the sale, and that said guarantee or warranty was broken in the manner set out in plea 3.</p>

Coleman, Jr., Judge. Suit by May C. Ford against C. S. Borders and another. Decree for respondents, and complainant appeals. Appellant, in her individual capacity, filed the original bill against C. S. and Ab. G. Borders, appellees, as tenants in common of a certain tract of land.

L. Boram, Judge. Action by M. M.■'Williams against the Central of Georgia Railway Company for damages for killing animal. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. The first count declared for the killing of two cows. ’ The second count for one ye ailing.

C. B. Gwin, Judge. Statutory ejectment by Georgia A. Veitch. against James H. Hard and others. Judgment for defendants, and plaintiff appeals. Plaintiff showed a paper title from the government into her deceased ancestor, and her succession thereto, but without any actual possession by either. Defendant claimed by adverse possession under color of title for 10 years.

A. Pearce, Judge. Suit by E. E. Forbes Piano Company against J. M. Vann, which was revived against defendant’s administrator, B. O. Hay. On motion of Hay the case was stricken from the docket and dismissed, and plaintiff appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449. Suit in detinue begun on September 6, 1912, by the appellant against J. M. Vann, for the recovery of one piano.

Coleman. Jr., Judge. Action by H. Priebe against the Southern Railway Company. From judgment for defendant, plaintiff appealed to the Court of Appeals, and the ease was transferred to the Supreme Court. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

<p>1. Mortgages <&wkey;137, 188 — Mortgagee’s Title — Possession.</p> <p>At law a mortgagee acquires the legal title to the premises described, and, unless expressly or impliedly stipulated to the contrary, is entitled to the immediate possession and right of entry, even as against the mortgagor.</p> <p>[Ed. Note. — For other cases, see Mortgages, Oeat. Dig. §§ 270-276, 469, 471-475, 479-481.]</p> <p>2. Mortgages <&wkey;206 — Trespass by Mortgagee.</p> <p>Where the mortgagor did not show any reservation of the right to the possession' until the law day of the mortgage, or that the law day ' had not arrived at the time of the alleged entry on the land, she could not maintain trespass against the mortgagee.</p> <p>[Ed. Note. — For other cases, see Mortgages, ; Gent. Dig. §§ 551, 552.]</p> <p><&wkey;>For other cases sec same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Court, Houston County; O. S. Lewis) Chancellor. Bill by Leonora Culbreth against S. C. Dawsey to declare a deed a mortgage and to redeem. Decree for complainant, and respondent appeals.

H. Alston, Judge. Suit by Gordon S. Jones against J. L. Thompson. Judgment for plaintiff, and defendant appeals. Suit by appellee against appellant on certain “bond and mortgage” executed by defendant to one J. E. Littlejohn March 12, 1914, and transferred to plaintiff for value. The paper sued upon was executed by defendant and one B. E. Jones; it appearing that defendant and said B. E. Jones had composed a partnership under the style of Jones & Thompson Lumber Company.

<p>1. Mortgages i&wkey;121 — Mortgage Debt — Subsequent Items.</p> <p>Where a mortgage, the debt being the joint and several debt of several mortgagors, was given to secure a stated amount and any other advances, or liabilities to the owner or holder, items evidenced by notes executed after execution of the mortgage by some of the mortgagors were properly included as part of the mortgage indebtedness in the’ report of the special register on reference in the mortgagor’s suit to enjoin sale on foreclosure.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 237-241.]</p> <p>2. Mortgages <&wkey;469 — Amount oii Indebtedness— Sufficiency oar Evidence.</p> <p>In suit against a bank to enjoin the sale of property on foreclosure, testimony of the bank’s assistant cashier held to support the register’s finding as to the amount of indebtedness.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1376-1381.]</p> <p>3. Appeal and Error <&wkey;1017 — Review — Finding op Register.</p> <p>On appeal in suit to enjoin sale of mortgaged property on foreclosure, a finding of the register will not he disturbed unless plainly wrong.</p> <p>[E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3911, 3961, 3996-4005.]</p> <p><E=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Criminal Law <&wkey;829(l) — Appeal and Error- — Instructions.</p> <p>Under Acts 1915, p. 815, refusal to give a requested charge correctly stating the law in a criminal case is not reversible error, where the charge as given substantially and fairly gives the requested instruction.</p> <p>[Ed. Note — For other cases, see Criminal Law, Cent. Dig. § 2011.]</p> <p>tScsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Judgment <&wkey;785(2) — Lien—Priority.</p> <p>A judgment creditor, without notice when filing its judgment for record that judgment debtor’s wife claimed an equity in judgment debtor’s land, secures a lien prior to such equity.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1359.]</p> <p>2. Judgment <&wkey;785(2) — Lien — Constructive Notice of Equity.</p> <p>Where the recorded copy of a deed to a judgment debtor was altered so as to insert his wife’s name as grantee, such altered record was not constructive notice to a judgment creditor of the wife’s equity in the land.</p> <p>-[Ed. Note. — For other cases, see Judgment, Cent, Dig. § 1359.]</p> <p>3. Judgment <&wkey;785(2) — Lien — Constructive Notice of Equity.</p> <p>Where a judgment debtor’s wife owned a half interest in land, her possession thereof did not charge a judgment creditor with notice of her claimed equity in the judgment debtor’s half interest in the land.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1359.]</p> <p>4. Creditors’ Suit <&wkey;4 —Establishing Judgment Lien.</p> <p>While a judgment creditor may sell a judgment debtor’s interest in land despite the fraudulent effort to substitute the name of the debt- or’s wife in the recorded deed, yet he may have equitable relief to render his judgment lien more effectual.</p> <p>[Ed. Note. — For other eases, see Creditors’ Suit, Cent. Dig. §§ 5, 8.]</p> <p>5. Mortgages <&wkey; 151(5) — Priority — Judgment Lien.</p> <p>A recorded judgment lien is superior to an unrecorded mortgage of which the judgment creditor had no notice.</p> <p>[Ed. Note. — For other eases, see Mortgages, Cent. Dig. §§ 320-322, 332-336.]</p> <p>6. Appeal and Error <&wkey;>173(2) — Reserving Grounds for Review — Homestead Exemption.</p> <p>In suit to subject land to a judgment lien, the judgment debtor cannot first claim upon appeal that land was exempt as homestead property.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1120.]</p> <p><S=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests an,d Indexes</p>

<p>Appeal from Circuit Court, Colbert County; C. P. Almon, Judge.</p> <p>Action by Nannie E. Hackworth, guardian, etc., against the Sovereign Camp, Woodmen of the World. Judgment for plaintiff, and defendant appeals.</p>

Merrill, Judge. Mandamus by tl)e Anniston Electric & Gas Company against T. A. Turner, as President of the Commissioners’ Court of Calhoun County. From a judgment granting a peremptory writ, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

<p>Appeal from Circuit Court, Jefferson County; O. B. Smith, Judge.</p> <p>Action by J. H. Ferrell against I. W. Ross, receiver, etc. From an order granting a new trial, plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.</p>

C. Crow, Judge. Suit by F. P. Gray against W. S. Mudd and others. ' Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Suit by appellee (plaintiff) against the appellants to recover damages for injuries received by plaintiff, resulting from a fall on the stairway of a building owned by the defendants in the city of Birmingham.

County; A. E. Gamble, Judge. Suit ¡between Sam yf. Coker and others and W. A. Fountain and others, in which the former appeal. The cause was submitted upon motion to dismiss the appeal as well as on the merits.

<p>Appeal from Chancery Court, Washington County; Thomas H. Smith, Chancellor.</p> <p>Bill by J. C. Carpenter, administrator of the estate of W. J. Carpenter, against Lucy Carpenter and others. Judgment for plaintiff, and defendants appeal.</p>

W. Pearson, Judge. Action by Cornelia O. Benton, as administratrix, against the City of Montgomery and the Montgomery Light & Traction Company. Judgment for defendants, and plaintiff appeals.

Petition by Gid Bankhead for certiorari or other remedial writ to be directed to Hon. A. S. Vandegraaf, as Judge of the Circuit Court of Lamar County, to' review the order of the court committing said Gid Bankhead for contempt.

Merrill, Judge. Action by Artie Newman against Carrie Parker, for damages for alienating the affections of her husband. Judgment for plaintiff, and defendant appeals.

C. Crow, Judge. Action by H. A. McKinnon against tbe City of Birmingham and others. Judgment for plaintiff, and defendant named appealed to. the Court of Appeals. Cause transferred, under Acts 1911, p. 449, § 6. Most of the facts sufficiently appear.

<p>1. Injunction <&wkey;38 — Trespass — Dispute over Title — Injunction to Permit Suit.</p> <p>When title to land is in dispute, and trespasses are continuous and cause irreparable injury, equity will award temporary injunction, whether defendant or complainant is in possession, to enable the parties to bring a suit at law to establish the legal title.</p> <p>[Ed. Note. — Eor other cases, see Injunction, Cent. Dig. §§ 86-90.1</p> <p>2. Injunction <&wkey;36(2) — Trespass—Jurisdiction op Chancery — Irreparable Injury.</p> <p>Where a bill to enjoin a continuous trespass shows that title to the land involved is in dispute, and that complainant has not taken steps in a proper forum to establish her title, and no irreparable injury is shown, a court of chancery . has no jurisdiction to enter decree for complainant, thus taking property out of the possession of one party and putting it in the possession of another.</p> <p>[Ed. Note. — Eor other cases, see Injunction, Cent. Dig. § 83.]</p> <p>(S=3Por other cases see same topic and KEY-NUMBElt in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Law and Equity Court, Morgan County; Thomas W. Wert, Judge.</p> <p>Suit by Mrs. D. A. Solomon against Mrs. Cora Gardiner for damages for the death of her intestate, alleged to have been caused by an automobile belonging to Mrs. Gardiner. Judgment for plaintiff, and defendant appeals.</p> <p>The first count alleges that defendant’s agent, Thomas Gardiner, wrongfully caused the death of Charlie Solomon, by wrongfully propelling, in the course of his agency, against said decedent, a powerful and ponderous automobile, the property of defendant, which defendant was, through said agent, then and'there engaged in operating. (Then follow the details of the accident resulting in decedent’s death.)</p> <p>Count 2 alleges that plaintiff is the widowed mother of Charles Solomon, deceased, and that defendant’s agent, Thomas Gardiner, wrongfully and, negligently caused the death of said Charlie Solomon, by wrongfully and negligently propelling against decedent, in the course of his employment, a powerful and ponderous automobile, the property of defendant, which defendant’s said agent was then and there engaged in operating in the course of his employment.</p> <p>Count 3:</p> <p>Plaintiff claims of defendant the sum of $15,000, for that heretofore, to wit, on or about August 21 or 22, 1915, the defendant was the owner of a motorcar of tremendous weight and great power, which she allowed her son, Thomas, to operate. The said Thomas, on the day and date aforesaid, was, and long had been, a careless, indifferent, heedless, and reckless driver of such car, so that said ear in his hands was a dangerous and deadly agency, of which facts defendant had been duly informed; yet, with information of such facts, she allowed her said son to propel said car along the public streets of New Decatur, Ala., at will, and intrusted its management and operation to him, and while, on the day and date aforesaid, he was engaged in running said car along a highway, to wit, Second avenue, in New Decatur, Ala., in the very heart of the business section of said city of over 6,000 people, and in broad daylight, the said Thomas so negligently, heedlessly, recklessly, wrongfully, and indifferently conducted himself with respect to said car that he ran same against plaintiff’s minor son, Charlie Solomon; and he, said defendant’s said son, by means of such death-dealing instrumentality, so crushed and pushed, rolled, and dragged plaintiff’s said minor son that he very soon died, and, his father being dead, plaintiff therefore sues. And plaintiff avers that at the time of said injury, defendant’s said son was using said car by defendant’s consent and acquiescence; she having been informed of his dangerous proclivities in connection with the same as aforesaid.</p> <p>Count 4:</p> <p>Plaintiff claims of defendant the sum of $15,,000, for that heretofore, to wit, on or about August 21 or 22, 1915, defendant was the owner of a motorcar of tremendous weight and great power, which she allowed her son, Thomas, to operate. Said Thomas, on the day and date aforesaid, was, and long had been, a careless, indifferent, heedless, and reckless driver of such car, so that said car in his hands was a dangerous and deadly agency, of which facts defendant had been duly informed ; yet, with information of such facts, she allowed her said son to propel said car along the public streets of New Decatur, Ala., at will, and procured indemnity insurance as a mode of protecting or reimbursing her against damages that might he recovered or recoverable by reason of her son’s disastrous operation of said car, he being, with her consent, named on her application for such insurance, or in the policy, or in both, as the operator or one of the operators of said car, the name of the insurance company being to plaintiff unknown, and while, on the day and date aforesaid, defendant’s said son was engaged in running said car along a highway, to wit, Second avenue, in New Decatur, Ala., in the very heart of the business section of said city of over 6,000 people, and in broad daylight, said Thomas so negligently, heedlessly, recklessly, wrongfully, and indifferently conducted himself with respect to said car that he ran same against plaintiff’s minor son, Charlie Solomon, and he, defendant’s said son, by means of such death-dealing instrumentality so crushed and pushed, rolled, and dragged plaintiff’s minor son that he very soon died, and, his father being dead, plaintiff therefore sues. And plaintiff avers that at the time of said injury defendant’s said son was using said car by defendant’s consent and acquiescence, she having been informed of his dangerous proclivities in connection with the same, as aforesaid.</p> <p>The pleas referred to are the special pleas of contributory negligence, to which demurrers were sustained before amendment; the negligence alleged being that deceased stepped off a moving street oar at a place where passengers were not accustomed to alight, and so close in front of the moving automobile that it was impossible to stop same by the- exercise of all means known to careful and skillful drivers of automobiles, all of which means were exercised to stop the automobile.</p> <p>Replication 2 is that, after Charlie became in a condition of peril from which he could not escape, defendant Gardiner saw said peril, and after so seeing said peril, and after seeing that said Charlie Solomon could not escape, said Thomas Gardiner by prompt and reasonable efforts could have stopped, checked, or turned aside said machine, so as to have avoided hitting said Charlie Solomon, but that he negligently failed to do so.</p>

Miller, Judge. Action by Allie C. Birch against Geo. B. Ward and others for trespass to realty. Judgment for defendants, and plaintiff appeals. The case made by the pleadings and the facts sufficiently appears in the opinion. The following charges were refused plaintiff: (A) If you believe from the evidence that defendants caused plaintiff’s building to bo torn down, and she was damaged as a proximate consequence of such tearing’ down, you will find for plaintiff.

A. Pearce, Judge. Detinue by J. T. Edmonson & Co. against Whit Clark, in which the Houston National Bank of Dothan interposed as claimant. From a judgment for plaintiff, claimant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. , The bank intervened under section 3792, Code 1907, and tbe issue was made up as in statutory claim, suits.

W. Mabry, Judge. Detinue by T. A. Walthall, Jr., against the People’s Bank & Trust Company. The facts sufficiently appear. The following charges complained of were given for plaintiff: (3) I charge you that a check received in payment of a debt, or for property sold, or as a loan, is not the same as cash unless it is so accepted and treated by the party receiving it, and, unless it i,s so received and treated, it, in law, is not a payment.

<p>1. Deeds <@=»38(4) — Construction.</p> <p>The conveyance of “a certain strip of land, 100 feet wide,” over a square named by number, was void as a conveyance of any particular part of the square, of a width of 100 feet or less, and did not transmit to the respective grantees any particular area 100 feet in width within the coniines of such square.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. § 70.]</p> <p>2. Deeds &wkey;>93 — Construction — Intention of Parties.</p> <p>It is the obligation and office of the court to ascertain and effectuate the intent of the parties in the execution of conveyances, unless the intent thereby manifested is opposed to some rule of law, and in the performance of this function the whole instrument is to be taken into consideration.</p> <p>[Ed. Note. — Fbr other cases, see Deeds, Cent. Dig. §§ 231, 232.]</p> <p>3. Deeds <&wkey;90 — Construction — Construction Favorable to Validity and to Grantee.</p> <p>Where a deed admits of two constructions, that favorable to its validity and that^more favorable to the grantee will be accepted.</p> <p>[Ed. Note.' — For other bases, see Deeds, Cent. Dig. §§ 234-237, 247, 248.]</p> <p>4. Easements <&wkey;12(3) — Creation — Deed — Construction.</p> <p>An easement or right of way over a definitely described tract of land may be effectively granted, and its particular location on the tract fixed, through the aid of a court pf equity, even though the grant does not define the boundaries of the way intended to be so granted.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. § 41.]</p> <p>5. Easements &wkey;>12(3) — Creation — Deed — Construction.</p> <p>Where a conveyance manifests a major intent to grant an easement of access over a definitely described tract of land, and in an effort to effect its paramount purpose an obvious fail-lure to efficiently define the particular location of the easement is made, no such conflict in manifested intention, or in clauses of the instrument, is instituted as would justify a court in pronouncing the conveyance void for indefiniteness or uncertainty.</p> <p>(SnxiFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>[Ed. Note. — For'other cases, see Easements, Cent. Dig. § 41.]</p> <p>6. Easements &wkey;12(2) — Creation — Deed— Construction — “Lands.”</p> <p>Where the intent to convey an easement is manifest, the employment of terms that would otherwise describe corporeal property will not suffice to defeat the purpose of the grant, or render the instrument void as a grant of an easement; and the term “lands” may, and often does, when consistent with the manifest intent of the parties, comprehend an easement as distinguished from the fee in the soil.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 36-38.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Land.]</p> <p>7. Easements &wkey;12(2)— Creation — Deed — Construction.</p> <p>A conveyance of a certain strip of land 100 feet wide across a square of land described, with the expressed purpose of giving railroad track facilities into and from property first conveyed, did not convey any definite part of the square, but vested in the grantees an easement or right of way for railroad purposes 100 feet in width over the square named.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 36-38.]</p> <p>other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Trial <&wkey;33 — Burden oí Prooí.</p> <p>A party is under no obligation to prove the case of his adversary, and a party on whom there is no burden of proof may rest his case upon the weakness of his adversary’s evidence.</p> <p>[Ed. iNote. — For other cases, see Trial, Cent. Dig. §§ 85, 86.]</p> <p>2. Usury &wkey;>113 — Suit to Redeem Mortgage —Burden oí Explanation.</p> <p>In suit to redeem under a mortgage, where plaintiff averred that the debt was in large part usurious, and defendant bank’s original contract was usurious, and the operations whereby renewals of the debt to a third person were effected indicated that they were under the entire control of the bank or its officers, the burden of explanation was on the hank.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 308-323.]</p> <p>3. Usury <&wkey;117 — Evidence—Failure to Examine Witness — Iníerences.</p> <p>In suit to redeem under a mortgage, where the mortgagee bank had effected renewals through its employe, who knew the facts and was at time of trial without financial interest in the question of usury, failure to examine him weighed against the bank, rather than against the mortgagor.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 328-340.]</p> <p>4. Usury <&wkey;lS — Loan in Good Faith to Pay Usurious Debt.</p> <p>A loan made in good faith and at a legal rate of interest to enable the borrower to pay a debt owed to a third person is not affected by usury inhering in the original debt.</p> <p>[Ed. Note. — For other eases, see Usury, Gent. Dig. §§ 31-34, 36-38, 40.]</p> <p>5. Usury <&wkey;34 — Renewal oí Usurious Debt.</p> <p>If an original debt in fact persists through renewals, having been usurious in its inception, the taint abides in it, and will affect it through all its renewals and mutations, and follow it, into whose hands soever it may come, unless the holder receives it through the fraud of the debtor; and where a mortgagor, on suggestion of the mortgagee bank, borrowed at legal interest from the bank’s employé a sum of money wherewith he paid the mortgage debt, which was usurious, the transactions constituting a mere device of the bank to avoid usury, the fact that the mortgagor supposed he was paying his debt to the bank did not relieve the new contract of its usurious character.</p> <p>[Ed. Note. — For other cases, see Usury, Gent. Dig. §§ S3y89.]</p> <p>6. Usury <&wkey;15 — Requisites.</p> <p>To constitute usury, the borrower must enter into an obligation the effect of which is to bind him to pay more than legal interest.</p> <p>[Ed. Note. — For other cases, see Usury, Gent, Dig. §§ 27-29.]</p> <p>7. Mortgages <&wkey;121 — Items Chargeable Against Mortgagor — Renewal.</p> <p>Where a mortgagor bought fertilizers through the mortgagee bank from a mercantile firm, the bank giving the mortgagor a credit for the purpose and entering the charges on its books, the items were chargeable by the bank against the mortgagor under a renewal mortgage.</p> <p>TEd. Note. — For other cases, see Mortgages, Cent. Dig. §§ 237-241J</p> <p>É=oíor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Morgan County; R. 0. Brickell, Judge.</p> <p>Suit by Tennie S. Lampkin, as administratrix, etc., against E. H. Peck. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.</p>

<p>Appeal from Law and Equity Court, Monroe County; W. G. McCorvey, Judge.</p> <p>Bill by George W. Cook against Riley Kelly and another to quiet title to land. Decree for respondents, and complainant appeals.</p> <p>The bill alleges that orator is the owner of certain land therein described; that he purchased it and paid on the same the sum of $200, and was placed in possession of the land, and immediately erected valuable improvements on the land amounting to about $1,500, and that he and his wife have continued to reside on the land since as their homestead, and have paid the. balance of $400 due on said land; that there is no suit pending, etc., and that the value of the land and improvements will not exceed $2,000. It is then alleged that they became indebted to Riley Kelly in the sum of $624, and that Kelly was anxious to secure same by a mortgage on the homestead above described, and that orator went to his wife to get her to sign the same, but she refused, and, on informing Kelly of her refusal, Kelly asked if he had a deed to the land, and, on being told that his son had not made any deed, Kelly procured John A. Cook, his son, orator’s vendor, to make him a mortgage on the land in the above sum, and then to execute to orator a dee'd to the same land, whereupon orator agreed, and the mortgage and deed were executed. This is averred to be an evasion of the requirements of the homestead law as to the separate acknowledgment of the wife; that John A. Cook was not indebted to Riley Kelly in any manner, and said Kelly is now threatening to foreclose his mortgage and put orator off his homestead, etc. The mortgage and deed are set out as exhibits. Riley Kelly answered, and made his answer a cross-bill, setting up his equities, in that he furnished the money, or a greater part of it in making the improvements and paying the purchase price of the land, "and that at the time this was done Cook promised and agreed to execute him a mortgage as soon as he could obtain title to the land.</p>

<p>Carriers <&wkey;317(10) — Carriage oe Passengers — Injury—Negligence—Evidence.</p> <p>In an action for injuries in attempting to leave a street car when the handhold broke and precipitated plaintiff to the ground, evidence that plaintiff had on previous occasions jumped off the car at the particular point and was accustomed to jumping off, as tending to show the intention of plaintiff when he rose from his seat and went to the running board of the car, was properly rejected; there having been eyewitnesses to the accident.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1303, 1304.]</p> <p>©ssFor other oases see same topic and KE Y-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Chancery Court, Pike County; O. S. Lewis, Chancellor.</p> <p>Bill by Charles B. Goldthwaite against M. B. Campbell and W. P. McGaugh. Decree for complainant, and respondents appeal.</p>

en D. 'Turner, Judge. Suit by Mrs. Mattie Emma Hestle against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from tho Court of Appeals under Acts 1911, p. 450, § 6.

<p>Appeal from Chancery Court, Russell County; O'. S. Lewis, Chancellor.</p> <p>Bill by Ophelia J. Adams against Louisa J. Walsh and others. Judgment for defendants, and complainant appeals.</p>

<p>Appeal from Circuit Court, Mobile County; Saffold. Berney, Judge.</p> <p>Action by the City of Mobile against the Mobile Light & Railroad Company, a corporation, for taxes, and for breach of the terms of an ordinance granting defendant a contract. From a judgment for plaintiff, defendant appeals.</p> <p>Section 23 of the ordinance granting the franchise is as follows:</p> <p>In order to ascertain the amount of compensation due the city of Mobile by said company, their successors and assigns, under the provisions of this ordinance, a sworn statement shall be made by the proper representative of said corporation, their successors or assigns, annually on the 1st day of April in each year, showing the gross income of said - company, or their successors and assigns, giving, in detail the sources thereof, and the deduction claimed for tatfes actually assessed and paid; and the city clerk, or a person designated by him, shall have free access to all the books, papers and documents of said corporation, their successors and assigns, for the purpose of ascertaining such gross receipts.</p> <p>Section. 22 fixes the following as compensation for said franchise: One-fourth of 1 per cent, for the first 10 years; one-half of 1 per cent, for the second 10 years; 1 per cent, for the third 10 years, etc.</p> <p>The ordinance was adopted and approved in September, 1901.</p>

<p>1. Mortgages &wkey;>86(3) — Duress — Evidence. —Sufficiency.</p> <p>In a suit to cancel a mortgage on the ground that its execution was obtained by duress, evidence held sufficient to warrant conelusion that plaintiff executed the mortgage as the result of duress imposed upon him, and not of his free will.</p> <p>©a^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>[Ed. Note. — Eor other cases, see Mortgages, Cent. Dig. %% 197, 1364.]</p> <p>2. Cancellation of Instruments <®^»24(2)— Condition Precedent.</p> <p>In a bill to cancel a mortgage on the ground of fraud, restoration or offer to restore an older mortgage received in exchange was not a condition precedent to plaintiff’s right of action.</p> <p>LEd. Note. — Por other cases, see Cancellation of Instruments, Cent. Dig. §§ 34-38.]</p> <p><Sua>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

J. Semmes, Judge. The State of Alabama, through its authorized officer, seized and condemned 850 eases of beer found in the possession of the Pensacola, St. Andrews & Gulf Steamship Company-in Mobile.

<p>Appeal from Chancery Court, Henry County ; O. S. Lewis, Chancellor.</p> <p>Bill by the Farmers’ State Bank against Kirkland & Brackin and others. Decree sustaining claim of precedence of defendant F. Mayer Boot & Shoe Company, and plaintiff appeals.</p>

H. Alston, Judge. Action by J.'H. Middleton against MacArthur Bros. Company and others, for, damages for trespass, and conversion. Judgment for plaintiff, and defendants appeal. Count 3 is as follows: Plaintiff claims of defendant the sum of $3,-000 damages for the conversion by them, of the following personal property: 300,000 feet of lumber, the property of plaintiff, during the months of December, 1913, and January and February, 1914.

1 Appeal from Circuit Court, Elmore County; W. W. Pearson, Judge. Application to condemn a right of way by the Ensign Yellow Pine Company against Morris Hohenberg. Erom a judgment for defendant, the applicant appeals.

<p>1. Principal and Agent <&wkey;119(l) — Presumption of Agent’s Authority.</p> <p>An agent with power to conduct a particular line of business is presumed to have authority to do whatever is necessary, proper, or usual in the ordinary course of such business.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 391, 393, 398, 399, 401.]</p> <p>(SxmFor other casos see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>2. Principal and Agent <&wkey;120(5) — Agent’s Authority — Admission of Evidence.</p> <p>There being evidence tending to prove agency in the purchase of cotton of plaintiff for •defendant, it was competent to prove all of the alleged principal’s, acts and declarations in and about the business.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 407.]</p> <p>3. Principal and Agent <&wkey;124(l) — Agent’s Authority — Question por Jury.</p> <p>There being evidence tending to prove agency, it was proper to submit all evidence of the alleged principal’s acts and declarations to the jury, and there was no error in refusing a general .affirmative charge.</p> <p>[Ed. Note. — For other eases, see Principal and Ag'ent, Cent. Dig. § 724.]</p>

<p>Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.</p> <p>Action by J. R. Kelly against the Kinston Supply Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.</p>

<p>Appeal from Chancery Court, Chilton County; W. W. Whiteside, Chancellor.</p> <p>Suit to set aside a deed by Ed Wilson and others against W. I. Mullins. Judgment for defendant, and plaintiffs appeal.</p>

C. Brickell, Judge. Unlawful detainer suit between J. A. Anders and others and Randolph Sandlin and others in justice court, removed to circuit court under provisions of Code 1907, § 4283. On motion to dismiss appeal and on merits.

H. Alston, Judge. Action by Jessie Y. McCallum against the Maryland Casualty Company, on an accident insurance policy upon the life of E. Ben McCallum. Held: was it?” propounded to Dr. B. C. Stewart. The following is charge 6, refused to defendant : The court charges the jury that if they believe the evidence, McCallum did not die from the injuries inflicted by the blows on his head.

<p>Appeal from Chancery Court, Marshall County; James E. Horton, Jr., Chancellor.</p> <p>Bill by Susan M. Downs against Trotter Bros. From the decree entered, respondents appeal.</p>

<p>Appeal from Chancery Court, Lawrence County; James E. Horton, Jr., Chancellor.</p> <p>Bill by Mrs. Mary E. Martin against M. J. Jackson. Decree for plaintiff, and defendant appeals.</p>

<p>1. Ejectment <&wkey;15(l) — Claim of Title Through Common Source.</p> <p>Where in an action of ejectment both parties claimed title through plaintiff’s grandfather, neither could dispute grandfather’s title.</p> <p>[Ed. Note. — Eor other cases, see Ejectment, Cent. Dig. § 59.)</p> <p>2. Trial <&wkey;259(l) — Refusal of Instructions. !</p> <p>We cannot put the trial court in error for refusing instructions not requested in writing, as required by statute.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 648, 650.)</p> <p>3. Costs <&wkey;110(4) — Security for Payment —“Removal” from State.-</p> <p>Under Code 1907, § 3690, providing that if suit be commenced by a resident, who after-wards removes from the state, defendant may require security for costs, mere removal of plaintiff resident from the state without a change of residence did not subject him to giving security for costs; “removal” as used in the statute including only such absences as amount to a change of residence.</p> <p>[Ed. (Note. — For other cases, see Costs, Cent. Dig. §§ 432, 448, 449.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Removal.)</p> <p>4. Trial <&wkey;307(3) — Depositions — Sending to Jury Room.</p> <p>It is frequently a question of discretion whether showings for absent witnesses should be carried out by the jury upon retiring to consider the case.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 735, 736..]</p> <p>other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Original mandamus proceedings by the State of Alabama, on the relation of W. D. Letford, against A. E. Gamble.</p>

P. Almon, Judge. Assumpsit by R. G. Taylor against J. C. Taylor. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

S. Lewis, Chancellor. Bill by John C. Whitcomb against Lida J. Haralson and others. From an order sustaining a demurrer to the named defendant’s cross-bill, she appeals.

<p>Appeal from Circuit Court, Houston County ; H. A. Pearce, Judge.</p> <p>Action by J. R. Parker against W. E. Wells. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.</p>

<p>1. New Trial &wkey;>155 — Time eor Hearing— ' Continuance — Power oe Court at Subsequent Term.</p> <p>The ordinary motion for new trial is not continued by operation of law if not decided at the term at which it is made, nor will a general order continuing all cases and motions not otherwise disposed of keep a motion for new trial alive, but to give it vitality at a subsequent term and give the court power then to act on it tile record must show affirmatively that the motion was made and called to the attention of the court and continued during the term at which judgment was rendered, otherwise the . court is ever afterwards without power* to entertain it.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. § 315.]</p> <p>2. New Trial <&wkey;155 — Time eor Hearing-Continuance — Power oe Court at Subsequent Term.</p> <p>Where the court failed to act upon a motion for new trial within the time limited by an order of continuance of such motion for 30 days or to make an order of further continuance, the motion was discontinued, and the court could not thereafter hear the motion except by consent of the parties.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. § 315.]</p> <p><&wkey;>Ror other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

L. Brewer, Judge. S. H. Pope, having recovered judgment against John Glenn, had execution issued on said judgment and levied on a lot of goods shipped by Lowe-Samford Grocery Company to John Glenn at Goodwater, Ala. Mattie Glenn, wife of John Glenn, interposed a claim to the property, and recovered judgment therefor, and plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

Action by County of Montgomery against New Farley National Bank. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Suit by the county of Montgomery against the appellee hank for the recovery of $583.75, balance due on the purchase price of certain bonds of date May 1, 1909, issued by the county. The issue aggregated the sum of $150,000, and the bonds were of the denomination of $1,000.

Action by the Grasselli Chemical Company against the City Ice Company. From an adverse judgment, plaintiff appeals. Suit by appellant, the Grasselli Chemical Company, against appellee, the Oity Ice Company of Mobile, to recover the price of certain shipments of anhydrous and aqua ammonia sold by plaintiff to the defendant. The complaint contained only the common counts. The defendant interposed several special pleas.

<p>Appeal fromi Chancery Court, Houston County; O. S. Lewis, Chancellor.</p> <p>Bill by Willie J. • Gamble against Ligón Solomon Gamble and others. Decree for plaintiff, and defendants appeal.</p>

<p>1. Judgment <&wkey;235 — Ejectment—Necessity of Recovery by All Plaintiffs.</p> <p>, In ejectment all of the plaintiffs must recover or none can recover.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 414, 429.]</p> <p>2. Evidence <&wkey;478(l) — Opinion — Mental Condition.</p> <p>In ejectment, testimony showing* mental, status and physical condition of grantor of deed in question was admissible, providing the witnesses were shown to be qualified to form and express such opinions.</p> <p>LEd. Note. — For other cases, see Evidence, Cent. Dig. § 2242.]</p> <p>3. Deeds <&wkey;78 — Validity—Question for Jury — Grantor’s Capacity.</p> <p>In ejectment the question of the mental capacity vel non of grantor of a deed'in question was for the jury.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. § 648.]</p>

Disque, Judge. Bill hy Lillie S. Johnson and others against A. W. Balls, as administrator, and others, to construe a will. Prom the decree rendered, the administrator and others appeal. The will directed to be set out is as follows: (1) Payment of just debts.

<p>Appeal from City Court of Montgomery; Gaston Gunter, Judge.</p> <p>Action by the Bank of Tallassee against Mrs. M. R. Jordan. From a judgment for defendant, plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.</p>

<p>1. Dower <&wkey;56(3) — Right Before Assignment. -</p> <p>A widow may retain possession free from payment of rent of the dwelling house where her husband most usually resided next before his death, together with the offices and buildings-appurtenant thereto until her dower is assigned.</p> <p>2. Dower <&wkey;56(3) — Failure to Have Dower Assigned — Ownership of Fee.</p> <p>Failure to have dower assigned and permitting the widow to retain possession of the homestead -without more does not deprive the owner-of the fee in the land.</p> <p>3. Dower¡ <&wkey;44^-ExTENT of Right.</p> <p>A landowner died leaving a widow and children, and the widow held possession of the homestead tract in question until her death without having the estate administered or her dower or homestead set apart. One son who had conveyed his interest in his father’s estate without his wife’s relinquishing her dower died before his mother. Held, that the fact that the son died before his mother did not affect his widow’s rights, and that his conveyance was subject to her right of dower.</p> <p>^xxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>[Ed. Note. — For other cases, see Dower, Cent. ■Dig. §§ 3, 130-143.]</p> <p>4. Courts <&wkey;472(4) — Chancery Courts — Jurisdiction — Dower.</p> <p>The statutory jurisdiction conferred on courts of probate in the allotment of dower does not take away the original jurisdiction prevailing in courts of chancery.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 1204, 1259.]</p> <p>5. Courts &wkey;>472(4) — Chancery Courts — Jurisdiction — Dower.</p> <p>Code 1907, § 3835, providing that when land out of which dower is demanded has been alienated by the husband, and from improvements made by the alienee, or from any other cause an assignment of dower by metes and bounds will be unjust, the court of probate must decline jurisdiction, clearly implies that the power conferred on the probate court for the assignment of dower was intended to be concurrent with that of the chancery court and limited to cases where such estate might be justly assigned by metes and bounds.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1204.]</p> <p>6. Dower &wkey;>85 —From What Date Allowed.</p> <p>Under- Code 1907, § 3836, providing that the widow is dowable of the value of the land at the time of the voluntary or involuntary alienation thereof from the death of the husband, where petitioner’s husband who conveyed his interest in his deceased father’s estate without his wife’s relinquishment died before his mother, petitioner’s right of dower will be decreed to date from the death of her mother-in-law rather than from that of her husband; dower not having been assigned to the first widow.</p> <p>[Ed. Note. — For other cases, see Dower, Cent. Dig. §§ 325, 326.]</p> <p>(ScreFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Equity &wkey;>150(l) — Pleading —Multifariousness.</p> <p>A bill, by an assignee of a mortgage, whose attorney bid in at foreclosure sale, and took foreclosure deed under verbal agreement to hold for his client, and thereafter brought ejectment against the mortgagors, wherein he prevailed, against the attorney’s devisee and the mortgagors, seeking complainant assignee’s investment with the title apparently acquired by the ■attorney after foreclosure, and sale for division of the proceeds of the land, in which complainant assignee was also tenant in common with the feme mortgagor, was not multifarious, since each defendant had an interest in the subject-matter, and the relief sought asked the court to determine all rights or claims relating thereto.</p> <p>[Ed. Note. — Eor other cases, see Equity, Cent. Dig. §§ 342, 371, 373, 378.]</p> <p>■2. Costs <&wkey;13 — Costs in Equity — Control oe Court.-</p> <p>'The costs of .a cause in equity are within the control of the court, so that a defendant, in a ¡suit in equity, could not be prejudiced'by the ■presence of another as party defendant.</p> <p>[Ed. Note. — Eor other cases, see Costs, Cent. Dig. §§ 21, 25.]</p> <p>'3. Judgment <&wkey;675(2) — Binding Force-Real Party in Interest.</p> <p>The assignee of a mortgage, whose attorney •bid in the property on foreclosure, and who ' was, in reality, plaintiff in the attorney’s action of ejectment against the mortgagors, would have been bound by the judgment had it favored the mortgagors, who were bound by an adverse judgment as to execution of the mortgage, a contested issue.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1191.]</p> <p>4. Equity <§=324 — Pleadings — Single Cause.</p> <p>A cause in equity, composed of the original bill and the responses thereto, and the cross-bill and the response thereto, was one cause.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 635-640.]</p> <p>•5. Equity <&wkey;206 — Pleading—Sufficiency of Response to Cross-Bill.</p> <p>The sufficiency of the original complainant’s response to the cross-bill is to be determined with reference to the allegations of the original bill.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 474=477.]</p> <p>■6. Reformation of Instruments <&wkey;32— Pleading — Laches.</p> <p>In suit by the assignee of a mortgage against the mortgagors, in the absence of appropriate •assertion by. complainant, cross-respondent, of the defensive matter of laches, relief to defendant mortgagors, by reformation of the mortgage, could not be soundly denied them on the ground of laches.</p> <p>[Ed. Note. — Eor other cases, see Reformation of Instruments, Cent. Dig. §§ 119-121.]</p> <p>On Rehearing.</p> <p>7. Appeal and Error <§=721(1) — Joint Assignments of Error — Denying Relief on Defense Not Pleaded.</p> <p>In suit by the assignee of a mortgage against the mortgagor, husband and wife, error in denying defendants reformation of the mortgage, as prayed in the cross-bill, on the ground that laches 'precluded the relief, a defense to the cross-bill not pleaded, was not harmless to the feme mortgagor, where, if the reformation had been accorded, 120 acres of land in which the feme mortgagor had an undivided half interest .would have been exempt from an order of sale for division at the instance of complainant, who would not then have been a tenant in common with the feme mortgagor in the tract.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2985-2988.]</p> <p><f--sFnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Husband and Wife &wkey;>193 — Conveyance by Wife — Validity—Statute.</p> <p>A conveyance by the wife to her husband and daughter of lands belonging to her separate estate, was invalid in so far as it purported to convey an interest to the daughter in view of Code 1907, § 4494, requiring the husband to join in conveyances by the wife.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 716-718, 940.]</p> <p>2. Husband and Wife &wkey;>193 — Conveyance by Wife — Validity—Statute.</p> <p>The wife alone may make a valid conveyance of her lands to her husband; Code 1907, § 4494, requiring the husband to join, having no application to conveyances to the husband.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 716-718, 940.]</p> <p>3. Husband and Wife &wkey;>19S — Sale of Property — Nonjoinder of Husband — Estoppel.</p> <p>Where the husband did not join in the conveyance by his wife as required by Code 1907, § 4494, his conduct could not estop him from asserting the invalidity of the conveyance; as such conveyance could not be made the basis of an estoppel.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 733, 944.]</p> <p>4. Estoppel <&wkey;52 — As to Acts Which One Has no Power to do.</p> <p>The doctrine of estoppel can go no further than to preclude a party from denying that he has done that which he had the power to do.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 121-125, 127.]</p> <p>©=AFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Chilton County; A. H. Alston, Judge.</p> <p>Action by S. J. Reynolds against Holcombe & Bowden and others. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.</p>

<p>Appeal from Chancery Court, Conecuh ■County; O. S. Lewis, Chancellor.</p> <p>Suit by Mary Ella Cobb against Katie Bowles Frink and others. Decree for defendants, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Baldwin County ; A. E. Gamble, Judge.</p> <p>Escheat proceedings by N. G. McKenzie, administrator of the estate of Jorgan Jensen, deceased. Opposed by Christian V. T. Jensen. From an adverse judgment, the administrator appeals.</p>

Certified Questions to Court of Appeals. Suit between, the Mobile Light & Railroad Company and one Copeland and others. On application of the company for writ of certiorari.

<p>Appeal from Circuit Court,' Wilcox County; B. M. Miller, Judge.</p> <p>Action by the People’s Bank & Trust Company against Matelyn F. Floyd. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>1. Forcible Entry and Detainer &wkey;>6(2) — Evidence — Admissibility.</p> <p>Under Code 1907, § 4271, providing that in an action of forcible entry and detainer the estate or merits of the title cannot be inquired into, all questions as to the ultimate title or right of possession as distinguished from the actual possession are excluded.</p> <p>[Ed. Note. — For other cases, see Forcible En,try and Detainer, Cent. Dig. § 31.]</p> <p><§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>2. Evidence <&wkey;121(6) — Declarations—Possession of Land — Admissibility.</p> <p>In trials of the title to realty, a party may prove the claim or disclaimer of a party in possession to show the intént with which possession is held; such declarations being admissible as of the res gestae and explanatory of the actual possession otherwise proved.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§. 316, 1117, 1119.]</p> <p>3. Evidence <&wkey;273(2) — Declarations as to Title — Admissibility.</p> <p>Declarations as to the source of title are not admitted in any form of action.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1111, 1112.]'</p> <p>4. Forcible Entry and Detainer <&wkey;29(3) —Evidence—Admissibility.</p> <p>In foi’cible entry and detainer a deed purporting to convey the land in question to defendant’s ancestors is admissible for the limited purpose of showing the extent of the possession claimed.</p> <p>5. Forcible Entry and Detainer <&wkey;29(2)— Evidence — Admissibility.</p> <p>In forcible entry and detainer, where a deed was admitted for the limited purpose of showing the extent of possession, testimony that the grantor had been working the land was irrelevant as drawing the attention of the jury to the question of title rather than possession.</p> <p>[Ed. Note. — For other cases, see Forcible Entry and Detainer, Cent. Dig. §§ 135-139,147.]</p> <p>' 6. Forcible Entry and Detainer <&wkey;34 — Evidence — Sufficiency.</p> <p>Evidence held to warrant general affirmative charge for defendants in forcible entry and detainer suit.</p> <p>[Ed. Note. — For other cases, see Forcible Entry and Detainer, Cent. Dig. § 157.]</p> <p>7. Forcible Entry and Detainer t&wkey;29(2)— Evidence — Admissibility.</p> <p>In forcible entry and detainer, where defendants put in evidence the possession of one under whom they claimed, it was proper for plaintiffs to show that such person took possession under a lease from them.</p> <p>[Ed. Noto. — For other cases, see Forcible Entry and Detainer, Cent. Dig. §§ 135-139, 147.]</p> <p>On Rehearing.</p> <p>8. Evidence <&wkey;273(3) — Declarations as to Title — Admissibility.</p> <p>In an action of forcible entry and detainer, declarations of an alleged tenant in possession claiming to own the property were inadmissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1113, 1114.]</p> <p>McClellan, J., dissenting.</p> <p>©soPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from City Court of Gadsden; John H. Disque, Judge.</p> <p>Ejectment by X. A. Fowler against Sampson E. Burgess. Judgment for defendant, and plaintiff appeals.</p>

<p>Exemptions &wkey;>119(2) — Claim: of Exemption —Time for Filins.</p> <p>Judgment debtor who failed to fill claim of exemption with judge of probate under Code 1907, § 4168, before levy, or to assert same after levy before sheriff under’section 4174, could not enforce his claim after sale by petition in equity.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 141-145.]</p> <p>Mayfield, J., dissenting.</p> <p><§^For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes</p>

C. B. Gwin, Judge. ' Action by J. H. McEniry against the Alabama Great Southern Railroad Company. Judgment for plaintiff, and defendant appealed to the Court of Appeals, which transferred the cause to, the Supreme Court under Acts 1911, § 6, p, 449. The cause was tried upon count 1 of the complaint, the plea of general issue, and the plea of the statute of limitations of one year.

<p>Appeal from Chancery Court, Morgan County; James E. Horton, Jr., Chancellor.</p> <p>Bill by John W. Gilchrist against Mary J. Johnson, to enjoin the foreclosure of a mortgage, and for an accounting and redemption. Decree for respondent, and complainant appeals.</p>

Action of assumpsit by B. F. .Jeffries against R. R. Pitts. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under Acts 1911, p. 450, § 6. The action was upon a promissory note, which defendant asserted was given for commissions due complainant to defendant as an agent for plaintiff in selling spirituous, vinous, or malt liquors furnished defendant by plaintiff, which is against the law.

<p>Husband and Wife <&wkey;171(4) — Wife as Husband’s Surety — Burden of Proof.</p> <p>A wife seeking cancellation of a mortgage and notes on the ground that she was her husband’s surety in the transaction has the burden of proof on that issue.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 674, 676, 950, 951.]</p>

<p>1. Equity- <&wkey;325 — Pleading — Proof of Averment — Admission.</p> <p>Averment of bill admitted by the answer need not be proven.</p> <p>[E'd. Note. — For other cases, see Equity, Cent. Dig. §§ 641-647.]</p> <p>2. Mortgages <&wkey;292(6) — Assumption by Grantee of Land — Sufficiency of Evidence.</p> <p>In suit on a mortgage indebtedness against the grantee of the property, evidence 7leld to show that the mortgage involved was assumed by the grantee.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 769, 770, 790.]</p> <p><gsx>For other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

S.' Williams, Judge. Actions by the State, on the relation of J. W. Dedge, against E. Hemmelweit and C. P. Porter and another. Judgment for plaintiff, and defendants appeal.

<p>1.Municipal Corporations &wkey;48(l) — Commission Form oe Government — Petitions —Rights op EIleotors.</p> <p>If the probate judge has, under Acts 1911, p. 591, acted on petition for an election to determine whether the commission form of government shall be adopted, the mere fact that a person is an officer under the old form gives him no greater right than any other citizen to have the petition set down for further hearing, since he has no vested interest in the office, and the statute does not provide for a proceeding inter partes.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 127, 128.]</p> <p>2. MIandamus <&wkey;29 — Functions oe — Judicial Acts.</p> <p>The probate judge’s action in regard to petition for an election under Acts 1911, p. 591, involves judicial discretion, and though mandamus is the proper remedy, if he refuses to act, after he has acted and regardless of wrong, it cannot be remedied by mandamus.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 64.]</p> <p>3. Constitutional Law <&wkey;56 — Powers oe Legislature.</p> <p>The provision of Acts 1911, p. 591, making the decision of the probate judge final as to sufficiency of a petition for an election relating to commission form of government is within the powers of the -Legislature.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 62-65.]</p> <p>&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Master and Servant <&wkey;88(3) — Servant’s Injuries — Relation of Parties — “Servant” — “Independent Contractor” — “Master.”</p> <p>Whether one performing a service is a “servant” or an “independent contractor” is determined by whether or not the person for whom he is working has control over means and agencies by which the work is done, or by which the result is produced, and he will be deemed the “master” who has the supreme choice, control, and direction of the servant, and whose will the servant represents, not merely in the ultimate result of his work, hut in all its details, and he is an “independent contractor” when the service rendered represents the will of the master only as to the resuit of Ms work, and not as to the means by which it is accomplished.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 146.</p> <p>For other definitions, see Words and Phrases, First and Second .Series, Independent Contractor; Master; Servant.]</p> <p>2. Master and Servant <&wkey;264(16) — Miner’s Injuries — Issues, Proof, and Variance— Relation.</p> <p>Where complaint alleged that injured miner was working on said premises as an invitee, employed by an independent contractor, and was not a servant of defendant, and the evidence showed that the miner was defendant’s servant, there was a variance, warranting an affirmative charge for defendant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 870.]</p> <p>fcmFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>' Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.</p> <p>Action by Gale-Hooper Company against S. D. Rice. From judgment for defendant, plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.</p>

C. Crow, Ju'dge. Action by Emma J. Hanby against tbe Ca'baba Coal Company and others. Decree dismissing the bill, and complainant appeals.

C. B. Gwin, Judge. Bill by the Edmundson-Randle Drug Company against, the Partin Manufacturing Company and others, to enjoin certain prize voting contests. From the granting of a motion dissolving the temporary injunction granted, complainants appeal.

H. Alston, Judge. Action by Central Hardware Company against A. G. Anderson for rent and advances, in which attachment was levied upon certain personal property, which was claimed by Henry King. On the trial of the claim suit there was judgment for plaintiff, and claimant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

A. Pearce, Judge. Ejectment by J. B. Long against A. B. Martin and others. Judgment for plaintiff, and defendants appeal. Defendant demanded an abstract of title, and, replying thereto, plaintiff answered: (1) Patent from the United States government to S. S. Curry, May 1, 1§61; (2) possession of the lands involved in the suit by Curry to his death, and after his death possession in his widow to her death; (3) heirship of Annie Long, wife of plaintiff, to the lands of S. ®.

<p>.Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.</p> <p>Assumpsit by M. E. Killen, ,as administratrix against J. G. Wade as administrator. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, page 449.</p> <p>The following are the assignments of error referred to:</p> <p>(3) The court erred in refusing, on motion of defendant, to exclude the testimony of Mary E. Killen, on the ground that said witness was interested in the result of the suit, and the evidence was as to transaction with a deceased person, whose estate was interested in the result of the suit.</p> <p>(4) The court erred iu overruling the motion to exclude the evidence of witness Mary E. Killen on the ground that it was immaterial and did not show any credits on the note in evidence from 1898 to 1911, and on the further ground that it failed to give any information about the dates of the credits, and that most of the testimony of the witness related to alleged credits not shown on the note.</p> <p>(5) The court erred in failing to exclude the testimony of the witness J. C. Killen as to credits on the note in evidence, excepting as to credits 'appearing on the notes for the reason set forth in the motion.</p> <p>(9) The court erred in rendering judgment in the sum of $300.</p>

<p>Appeal from City Court of Birmingham; John H. Miller, Judge.</p> <p>Action by J. H. Moore against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 449.</p>

<p>Appeal from Chancery Court, Covington County; O. S. Lewis, Chancellor.</p> <p>Action by W. H. Chandler against E. E. Kelley and others. From a judgment for complainant,' defendants appeal.</p>

<p>1.. Chattel Mortgages <&wkey;124^-MoRTGAGE on After-Grown Crops — Title.</p> <p>Where a mortgage on crops grown in 1915 was executed in 1914, the legal title never passed by virtue of the mortgage, but, at most, only the equitable right to subject the crops to payment of the debt secured.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 208, 209.]</p> <p>2. Bankruptcy <&wkey;433(5) — Discharge—Debt Secured by Mortgage.</p> <p>Where the debt secured by a chattel mortgage on crops to be grown was a provable debt under Bankruptcy Act July 1, 1898, e. 541, § 17, 30 Stat. 550 (U. S. Comp. St. 1916, § 9601), the bankrupt was personally discharged therefrom.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 812.]</p> <p>3. Bankruptcy <&wkey;433(5) — Destruction of Mortgage Lien.</p> <p>Where the only debt secured by a chattel mortgage on after-grown crops was a provable debt, the mortgagor, who became bankrupt, was personally discharged therefrom, and the lien of the mortgage did not continue to exist so as to attach to after-grown crops with the right of enforcement against them, since there was no enforceable debt or demand to support the mortgage lien when the crops came into existence, and the law will not allow a lien to attach to property acquired by a bankrupt after his discharge as security for a debt of which he was discharged.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 812.]</p> <p>4. Bankruptcy &wkey;418(l) — Discharge — Revivor of Debt.</p> <p>Neither bankruptcy nor the discharge of the bankrupt necessarily pays or exinguishes his debt, even though it is a provable debt, but merely destroys the remedy for enforcing it, and the debt, though provable, may be revived by a promise to pay after discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 764, 765, 768-771.]</p> <p>5. Bankruptcy &wkey;433(l) — Annulment of Liens and Mortgages.</p> <p>All liens and mortgages are not annulled or avoided by bankruptcy or discharge, but only those coming within the provisions of Bankruptcy Act, § 17.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 80S.]</p> <p>6. Bankruptcy <&wkey;433(5)— Discharge — Destruction of Mortgage Lien.</p> <p>If a chattel mortgagee had acquired a lien on after-grown crops covered by the mortgage, and the lien was in existence when the mortgagor was discharged a bankrupt, it was not destroyed or extinguished by the discharge, though no personal action could be maintained for the debt secured by the lien.</p> <p>[Ed. Note.' — For other cases, see Bankruptcy, Cent. Dig. § 812.]</p> <p>7. Liens <&wkey;l — Incidental Character.</p> <p>All liens are mere incidents to the debts secured.</p> <p>[Ed. Note. — For other cases, see Liens, Cent. Dig. §§ 1, 4, 23.]</p> <p>8. Bankruptcy <&wkey;433(l) — Limitation of Actions &wkey;>165 — Enforcement after Action on Debt is Barred.</p> <p>Though courts of equity enforce liens after pers'onal action to enforce the debt is barred, they will not enforce those which come into existence after such actions are barred by the bankrupt laws and the statute of limitations.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 808; Limitation of Actions, Cent. Dig. § 649.]</p> <p>®x^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

C. Brickell, Judge. Action by ArletMa E. Davis against the Louisville & Nashville Railroad Company for the destruction of property by fire. From a judgment for plaintiff, defendant appeals. There are five counts in the complaint which charge generally that defendant negligently set fire to and destroyed plaintiff’s house, and also specifically by the emission of sparks from a locomotive engine.

<p>Appeal from City Court of Gadsden; John -H. Disque, Judge.</p> <p>Action by James Word against the Dwight Manufacturing Company for personal injuries caused by electricity. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449.</p> <p>The case was submitted to the jury on counts 4, 5, 6, and 7, and the averment of fact common to all of them is as follows:</p> <p>Count 4. The plaintiff claims of defendant corporation the further sum of $5,000 as damages for.that on, to wit, the 11th day of June, 1914, plaintiff was in the employ of the Southern Bell Telephone & Telegraph Company as a lineman; that the Southern. Bell Telephone & Telegraph Company was then engaged in operating a telephone system in Gadsden, Ala., and contiguous territory thereto, and a part of its plant consisted in wires strung along Tuscaloosa street, in said city of Gadsden, Ala.; said telephone wires were stretched from one pole to another pole, and attached to cross-arms on insulators arranged for that purpose, and said cross-arms were attached to said telephone posts in the usual manner of constructing such wires; the posts of said telephone company were set along the northern margin of said Tuscaloosa street. Plaintiff further avers that defendant maintained and operated a wire heavily charged With a dangerous current of electricity, which was very likely to cause death or serious bodily harm if it should come in contact with the human body; defendant’s said wire or wires so charged were also strung from one pole to another, and attached to cross-arms on its posts, which posts were also along the northern margin of Tuscaloosa street, in Gadsden, Ala. Plaintiff further avers that the posts of said telephone company and the posts of defendant were maintained and operated in such close proximity to each other, and in some places ¿long said street substantially in the same line with each other, that linemen of said telephone company, 'in the proper discharge of the duties of their employment, were very likely to come in contact with the heavily charged electric wire of defendant; and plaintiff avers that these wires of the telephone company had been maintained and operated in the manner above averred for more than three years at the time this plaintiff was injured as hereinafter set out. Plaintiff further avers that his duties as lineman of said telephone company required him to repair, adjust, clear, and keep in working order the telephone lines, and to do this it was very often necessary for him to get among the wires of the telephone company where they were strung from one pole to another; that on said date, to wit, the llth day of June, 1914, plaintiff’s duties as lineman of said telephone company required that he get up among the telephone wires strung along said Tuscaloosa street for the purpose of remedying some condition of said wires, and that while he was thus in the proper discharge of the duties of his employment as lineman of said telephone company, and while he was at a place he had a right to be, he came in contact with the wire of the defendant, which defendant maintained and operated as aforesaid in close proximity to the said telephone wires, and which said defendant’s wire or wires were charged with dangerous current of electricity, and as a proximate consequence plaintiff was severely shocked, caused to fall and be bruised, was burned on the left side of his body, caused to suffer much physical and mental pain, caused to be confined to the hospital for some time, lose much time from earning wages, put to great expense in having his injuries treated, and is permanently injured and rendered less able to earn a living, hence this suijt. The count then avers that plaintiff’s injuries were the proximate result of defendant’s said negligence in operating and maintaining said wire charged with the dangerous current of electricity in such close proximity to the said telephone wires that employés of said telephone company, in the proper discharge of their duties, were likely to come in contact therewith. Count 5 imputes the injuries to defendant’s negligence in negligently causing said wife to be charged with a current of electricity which was dangerous to human life, at said time and place, when it knew that the employés of said telephone company were likely to come in contact therewith. The negligence imputed in count 6 is that defendant negligently failed to keep said wire, which was charged with the dangerous current of electricity, properly insulated, so as to disarm it of danger to persons coming in contact therewith, as did plaintiff as aforesaid. Plaintiff’s injuries in count 7 are imputed to defendant’s conduct in negligently allowing or permitting its said wire,- which was charged with the dangerous current of electricity, to sag down among the wire of the telephone company to where it was likely to come in contact or become in contact with by the employés of said telephone company, while rightfully in the discharge of their duties as linemen, as plaintiff was at the time of his injuries.</p> <p>Numerous grounds of demurrer were filed to these counts and overruled. Defendant filed a number of special pleas to each, count separately, as follows:</p> <p>(9) Contributory negligence proximately contributing to his injury, which negligence consisted in this: The wires of said telephone company were strung about two feet below the wire of defendant, and plaintiff negligently came in contact with defendant’s wire or wires by climbing a tree in the margin of said Tuscaloosa street or road, and going above the wires of the telephone company for a distance of some two feet or more, and negligently came in contact with the wire or wires of defendant, which were in open view to plaintiff, and were known by plaintiff to be strung along said street at the time and place of plaintiff’s injury above the wires of the telephone company, and were known by plaintiff to be high voltage electric wires, likely to inflict serious bodily injury on him in case he came in contact therewith.</p> <p>(15) Further answering count 4 of the complaint, defendant says plaintiff was himself guilty of negligence which proximately contributed to his injury, which negligence consisted in this: That plaintiff, with knowledge that defendant’s wires were strung along said street about two feet above the wires of the telephone company at the time and place of his injury, and with knowledge that they were high voltage electric wires, likely to inflict on him serious bodily injury in case he came in contact therewith, climbed a tree in the northern margin of said street, and went up above the wires of the telephone company, and assumed a position in dangerous proximity to defendant’s wire or wires, with knowledge of the danger of contact therewith and probable injury therefrom, when it was unnecessary for him to do so in order to get among the wires of the telephone company or to properly discharge the duties of his employment with the telephone company, and when he could have assumed a safe position in said tree out of or beyond danger of contact with defendant’s wire or wires, and plaintiff knew of such safe position, but nevertheless he' negligently failed to assume such safe position, and as a proximate consequence thereof he came in contact with defendant’s said wire or wires and was injured.</p> <p>Plea 18, as amended, is: For further answer to the entire complaint, and each count thereof, defendant says that the Southern Bell Telephone & Telegraph Company, plaintiff’s employer at the time of his injury, and defendant are jointly liable to plaintiff for the injury sustained by him, if defendant is liable at all; that the two companies named are jointly responsible for the conditions complained of in the complaint; that plaintiff’s cause of action was satisfied and extinguished long before the bringing of this suit by the receipt by plaintiff from said telephone company of full compensation for his injury or compensation, accepted by plaintiff as full compensation, and plaintiff executed a release to said telephone company, and said release extinguished his entire cause of action and claim for damages arising from or growing out of his said injury. Said release is in words and figures as follows:</p> <p>“Election of Employee, under Plan for Employees’ Pensions, Disability Benefits and Death Benefits.</p> <p>“In consideration of the compensation payable to me by the Southern Bell Telephone & Telegraph Company, under its plan for Employees’ Pensions, Disability Benefits and Death Benefits, I elect, in accordance with the provisions contained in paragraph 26 of § 9 of the Plan, to accept the benefits to which I am entitled under the ‘Plan’ in lieu of and in release of any claims and demands which I might otherwise have against said company on account of injuries sustained by ine at Gadsden, in the state of Alabama, on June 11, 1914.</p> <p>“[Signed] J. W. Word.</p> <p>“Signed in my presence this the 1st day of August, 1914, by J. W. Word, after above was read aloud to him.</p> <p>“[Sd.] Jack Abbot.</p> <p>“[Sd.] J. C. Wilcox.”</p> <p>Defendant avers that plaintiff, James W. Word, received under his said election and the release above set forth the sum of, to wit, $363.-49, and the retention of his job or employment with said telephone company during the period of his life.</p> <p>Demurrers were sustained to all these special pleas except 15 and 18, and the trial was had upon these special pleas and the general issue. It was a disputed question whether the telephone company’s wires or the defendant’s wires were first erected along Tuscaloosa avenue at the place of accident to plaintiff. It was a disputed question also as to how much, if any, defendant’s wires were sagging down where they passed through the tree above the telephone wires; plaintiff’s testimony tending to show that they were sagging to within a little more than 12 inches of them, while other witnesses stated that there was no more than the normal and necessary sag, and that defendant’s wires were 22 inches above the telephone wires. Plaintiff is an expert lineman, having had about 10 years experience in working for electric light and telephone companies in that capacity. He ascended the tree where the accident occurred for the purpose of wrapping a telephone wire with tape to prevent its contact with a limb. In doing this he pushed his shoulder against defendant’s wire, and was severely burned and knocked from the tree. The tree was from 10 to 15 feet from the power and telephone pole, from which the wires of both companies ran into and through the branches of the tree, about 15 feet above ground. Plaintiff had known for five years of the presence of the power wires on the street, had seen the poles, and knew the wires carried a high voltage. He testified that he did not know that they were in the tree or so close to the telephone wires, and that he went about his work in the tree without looking for or thinking about the power wires, which he never saw at all at the time of his injury. The evidence tended to show that at or about the place of plaintiff’s contract with the power wire, after the injury, the wire was bare of insulation for two or three inches; and tins could be caused either by its contact with the limb, or with a man’s shoulder if another part of his body was on the telephone wire, of if it were grounded. The evidence is without dispute, from expert witnesses, that in such a case the insulation of a power wire of this voltage (about 2,200) would be no protection to a human being, although one expert stated that when fresh the insulation would be a protection “to a certain extent.” Several of the witnesses stated that the insulation would be of no service at all. Defendant’s wires were properly insulated when put up three or four years previously, and the evidence tended to show that the insulation lasts from six to eight years. The court gave the following charges at plaintiff’s request:</p> <p>(A) The court charges the jury that before plaintiff can be guilty of contributory negligence you must bé reasonably convinced from the evidence that he knew he could come in contact with the wire that injured him by his act and knew it would injure him.</p> <p>'(B) The court charges the jury that defendant had a right to perform his duties in a way most convenient to him, and in doing so would be guilty of no negligence unless he knew that to do so would injure him.</p> <p>The following among other charges were refused to defendant:</p> <p>(11) The court charges the jury that if they find from the evidence in the ease that the Dwight Manufacturing Company constructed its line first along Tuscaloosa street at the place where plaintiff was injured, and the telephone company afterwai’ds built its line along the same margin of said street at said place, placing its wires in close proximity to the wires of defendant, then plaintiff is a bare licensee or trespasser-, and he cannot recover in this case unless defendant wantonly, willfully, or intentionally injured him.</p> <p>(18) Defendant’s plea of the general issue, which it has filed in this case, is a denial of any negligence on its part as charged in the complaint, and the fact that defendant has also pleaded contributox-y negligence on the pax’t of plaintiff is not an admission by defendant that it was guilty of negligence in the case to any extent whatever. Defendant also requested the general affix-mative charge as to each count separately, each of which was separately refused.</p>

<p>Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.</p> <p>Suit by the Carlisle Seed Company against the Georgia Cotton Oil Company. From a decree for complainant, respondent appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6.</p>

<p>1. Commerce <&wkey;27(5) — Federal Employees’ Liability Act — Engagement in Interstate Oommerce.</p> <p>A person employed by a railroad as a member of a posse to search for and apprehend bandits who had robbed an interstate train whs not engaged in interstate Commerce to fix liability ' on the road for his death under the federal Employers’ Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]).</p> <p>2. Sheriffs and Constables <&wkey;27 — Assisting Sheriff — Liability for Injuries, s</p> <p>Persons engaged in an attempt to aid sheriffs and their deputies in the enforcement of the criminal laws of the state may be liable as for wrongs done to or injuries inflicted upon third parties or upon one another under certain circumstances.</p> <p>[E'd. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. § 44.]</p> <p><$^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.</p> <p>Bill by W. R. McDade against R. H. Jones and others, as the Board of Revenue of Montgomery County. From a decree for complainant, defendants appeal.</p> <p>The acts and the proposal referred to in the opinion are as follows:</p> <p>An act to submit to the qualified voters of the state of Alabama at the general. election to be held on the first Tuesday after the first Monday of November, 1916, for their consideration, an amendment to the Constitution of the state, fixing the salaries and compensations and allowances to be paid to the judge of probate, sheriff, the tax assessor and the tax collector of Montgomery county requiring the said officers to cover the fees collected by them into the county treasury of Montgomery county and authorizing and empowering the Legislature thereafter to'fix and regulate and alter the costs, charges, and fees and salaries of such officers including the method and basis of their compensation.</p> <p>Be it enacted by the Legislature of Alabama:</p> <p>Section 1. That the following amendment to the Constitution of Alabama is hereby proposed to be submitted to the qualified voters of Alabama for their consideration as hereinafter set fox-th, viz.: commencing at the beginning of their next term of office, subsequent to the general election to be held on the first Tuesday after the first Monday of November, 1910, the compensation and allowance of the following named county officers of Montgomery county shall be as follows: Salary of judge of probate of Montgomery county $5,000.00 per year net; allowance of $5,500.00 per annum for office expenses as follows: One clerk at $1,500.00 per annum; two clerks at $1,000.00 per annum each; one clerk at $800.00 per annum, and $1,-200.00 per annum for all other expenses, including extra clerks. The said $1,200 to be paid to the judge of probate in monthly installments and disbursed by him. The tax collector of Montgomery county shall l'eceive a salary of $4,000.00 per year net; allowance of $1,500.00 per year for his clerk in said office and $1,000.00 for extra help. The tax assessor of Montgomery county shall receive a salary of $4,000.00 per year net; allowance of $1,500.00 per year for a chief clerk in said office; $900.00 for an assistant clerk in said office and $600.00 per year for extra kelp. The sheriff of Montgomery county shall receive a salary of $4,000.00 per year net; allowance of $1,200.00 per year for a chief clerk'in said office; $1,380.00 per year for a chief deputy; $2,200.00 per year for two deputies in said office, and $1,000.00 for extra assistance. These amounts to be paid out of the county treasury of Montgomery county, This shall not interfere with the amounts now or hereafter allowed the sheriff for guards at the county jail or bailiffs for courts, nor with the provisions for feeding prisoners; The sheriff shall receive amounts now provided by law, and shall cover the same into the county treasury of Montgomery county, and the board of revenue of Montgomery county shall pay out of the county treasury of Montgomery county the expenses incurred by the sheriff in feeding said prisoners. The above-named amounts shall be in lieu of all compensations and allowances to the respective named officers. These amounts shall be paid out of the county treasury of Montgomery county as the salaries of other county officers are paid. The above-named officers shall collect the fees heretofore collected by them and shall cover such fees into the county treasury on the first Monday of each month. The board of revenue of Montgomery county shall provide said officers with necessary quarters, books, stationery and other conveniences. Tbe Legislature of Alabama may hereafter from time .to time by local or general laws, fix, regulate and alter the amount of the above-named salaries and allowances, including the method and basis of their compensation, also fix, regulate and alter amount of 'compensation received by all other county officers of said county.</p> <p>Sec. 2. That it shall be the duty of the Governor to give notice by proclamation to be published in one newspaper in each county in the state, at least eight consecutive weeks, next preceding the general election in November, 1916, of the election on the amendment proposed by this act, to be submitted to the qualified voters of the state, for their consideration, together with the proposed amendment.</p> <p>Sec. 3. That at the general election in November, 1916, an election shall be held for the vote of the qualified electors of the state upon the proposed amendment. Upon the ballots used at such election shall be printed the following: “Amendment to the Constitution, fixing the compensations and allowances of the following named county officers of Montgomery county, commencing at the beginning of their next term of office, subsequent to the general election in November, 1916, as follows: Salary of judge of probate of Montgomery county $5,000.00 per year net; allowance of $5,500.00 per annum for office expenses as follows: one clerk at $1,-500.00 per annum; two clerks at $1,000.00 per annum each; one clerk at $800.00 per annum, and $1,200.00 per annum for all other expenses including extra clerks. The said $1,200.00 to be paid to the judge of probate in monthly installments and disbursed by him. Tax collector of Montgomery county, salary of $4,000.00 per year net; allowance of $1,500.00 per year for a clerk, and $1,000.00 per year for extra help. Tax assessor of Montgomery county, salary of $■4,000.00 per year- net: allowance of $1,500.00 for a chief clerk and $900.00 per year for assistant clerk and $600.00 per year for extra help. Sheriff of Montgomery county, salary of $4,000.00 per year net; allowance of $1,200.00 per year for chief clerk; $1,380.00 per year for chief deputy, $2,000.00 per year for two deputies, and $1,000.00 per year for extra assistance. These amounts shall be paid out of the county treasury of Montgomery county as the salaries of other county officers are paid. The above-named officers shall collect the fees heretofore collected by them, and shall cover such fees into the county treasury on the first Monday of each month. The above-named amounts shall be in lieu of all compensation and allowances to the respectively named officers, except that this shall not interfere with the allowances for the guards at the county jail, bailiffs to attend the court of the county, nor with the provisions for feeding the prisoners at the county jail, provided, that as to feeding prisoners, the sheriff shall receive the amounts now provided by law, and cover same into the county treasury of Montgomery county, and the board of revenue of Montgomery county shall pay out of the county treasury of Montgomery county the expenses incurred^ by the sheriff in feeding such prisoners. The board of revenue of Montgomery county shall provide said officers with the necessary conveniences. The Legislature of Alabama may hereafter from time to time, by local or general laws, fix, regulate and alter the amount of the above-named allowances and salaries including the method and basis of their compensation.” Following the proposed amendment on the ballot shall be printed the word “Yes,” and immediately under that shall be printed the word “No.” The choice of the elector shall be indicated by the cross-mark by him opposite the word expressing his desire.</p> <p>Sec. 4. The officers of such general election shall open á poll for the vote of the qualified electors upon the proposed amendment. The election shall be held in all things in accordance with the law governing general elections. In the election upon such proposed amendment, the votes east thereat shall be canvassed, tabulated, and the returns thereof made to the secretary of state, and counted in the same manner, as in elections for representatives to the Legislature, and if it shall thereupon appear that a majority of the qualified electors who voted upon the proposed amendment voted in. favor of the same, such amendment shall be valid to all intents and purposes as a part of the Constitution of Alabama. The result of such election shall be made known by proclamation of the Governor.</p> <p>Article XVIII. Mode of Amending the Constitution.</p> <p>Sec. 284. Amendments may be proposed to this Constitution by the Legislature in the manner following: The proposed amendments shall be read in the house in which they originate on three several days,. and, if upon the third reading three-fifths of all the members shall vote in favor thereof, the proposed amendments shall be sent to the other house, in which they shall likewise be read on three several days, and if upon the third reading three-fifths of all the members elected to that house shall vote in favor of the proposed amendments, the Legislature shall order an election by the qualified electors of the state upon such proposed amendments, to be held either at the general election next succeeding the session of the Legislature at which the amendments are proposed or upon another day appointed by the Legislature, not less than three months after the final adjournment of the session of the Legislature at which the amendments were proposed. Notice of such election, together with the proposed amendments, shall be given by proclamation of the Governor, which shall be published in every county in such manner as the Legislature shall direct, for at least eight successive weeks next preceding the day appointed for such election. On the day so appointed an election shall be held for the vote of the qualified electors of the state upon the proposed amendments. If such election be held on the day of the general election, the officers of such general election shall open a poll for the vote of the qualified electors upon the proposed amendments; if it be held on a day other than that of a general election, officers for such election shall be appointed; and the election 'shall be held in all things in accordance with the law governing general elections. In all elections upon such proposed amendments the votes cast thereat shall be canvassed, tabulated, and returns thereof be made to the secretary of state, and counted, in the same manner as in elections for representatives to the Legislature; and if it shall thereupon appear that a majority of the qualified electors who voted at such election upon the proposed amendments voted in favor of the same, such amendments shall bo valid to all intents and purposes as parts 'of this Constitution. The result of such election shall be made known by proclamation of the Governor. Representation in the Legislature shall be based upon population, and such basis of representation shall not be changed by constitutional amendments.</p> <p>Sec. 286. No convention shall hereafter be held for the purpose of altering or amending the Constitution of this state, unless after the Legislature by a vote of a majority of all the members elected to each house has passed an act or resolution calling a convention for such purpose, the question of convention or no convention shall 'be first submitted to a vote of all the qualified electors of the state, and approved by a majority of those voting at such election. No' act or resolution of the Legislature calling a convention for the purpose of altering or amending the Constitution of this state, shall lie repealed except upon the vote of a majority of all the members elected to each house at the same session at which such act or resolution was passed: Provided, nothing herein contained shall be construed as restricting the jurisdiction and power of the convention when duly assembled in pursuance of this section, to establish such ordinances and to do and perform such things as to the convention may seem necessary or proper for the purpose _ of altering, revising, or amending the existing Constitution.</p> <p>Sec. 287. All votes of the Legislature upon proposed amendments to this Constitution, and upon bills or resolutions calling a convention for the purpose of altering or amending the Constitution of this state, shall be taken by yoas and nays and entered on the journals. No act or resolution of the Legislature passed in accordance with the provisions of this article, proposing amendments to this Constitution, or calling- a convention for the purpose of altering or amending the Constitution of this state, shall be submitted for the approval of the Governor, but shall be valid without his approval.</p>

<p>1. Appeal and Error <&wkey;656(l) — Review — i Error in Transcript — Correction.</p> <p>It is bad practice to correct a transcript in pencil, particularly where an omission has been made that is not self-correcting; and the appellate court, in the absence of agreement of counsel or effected correction of the transcript by certiorari, can consider only the transcript certified by the clerk, except where the imperfection is clerical merely.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Gent. Dig. §§ 2S26, 2828.]</p> <p>2. Street Railroads <&wkey;112(l) — Negligence —Presumption—Use op Headlight.</p> <p>As it is the office of headlights to give light ahead, it cannot be assumed that, although a headlight casts rays that may or will blind the vision of a person looking directly toward it, or interfere with a view back of the point of the headlight’s location, the use, under ordinary circumstances, of such an agency, however powerful, is negligence.</p> <p>[Ed. Note. — Eor other eases, see Street Railroads, Cent. Dig. §§ 227, 228.]</p> <p>3. Street Railroads <®=>110(1) — Negligent Use of Headlight — Pleading.</p> <p>.Since, under ordinary circumstances, it is not a breach <5f duty to pedestrians or other travelers in public streets to use headlights on vehicles moving along or over public thoroughfares, if plaintiff would state a cause of action for damages resulting from the use of a headlight, he must aver such facts as disclose a duty in the premises, and a breach thereof, to Ms proximately resulting injury.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 224.]</p> <p>4. Pleading <&wkey;8(17) — Conclusion — Negligence.</p> <p>In an action against a street railroad for injuries received when plaintiff was struck by an automobile, alleged to have been proximately caused by the negligence of defendant in using such a powerful headlight on its car that the plaintiff and the automobile driver were blind^ ed immediately preceding the accident, an allegation that the motorman negligently threw the headlight along a street is but a conclusion of the pleader, even when taken with a further allegation that the motorman knew that his rays would likely or probably blind people using the street.</p> <p>5. Pleading <&wkey;192(3) — Demurrer—Grounds —Conclusions.</p> <p>As only through the allegation of a conclusion of the pleader that the motorman negligently threw the headlight along the avenue was a duty in the premises averred, a demurrer faking objection on such ground should have been sustained.</p> <p>[Ed. Note. — For other cases, see Pleading, Gent. Dig. § 411.]</p> <p>6. Street Railroads <&wkey;102(l) — Injury to Pedestrian — Proximate Cause — Use of • Headlights.</p> <p>Where the headlight of a street car blinded a pedestrian and driver of an automobile, and injuries to pedestrian resulted from a collision with the automobile, negligence will be attributable to the driver of the automobile, unless the collision was so immediate upon the blinding effect of the rays of 'the headlight that the driver of the automobile bad no adequate opportunity to stop his machine before striking the pedestrian, or to avoid- a collision.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 186, 194, 200, 203.]</p> <p>(2=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Railroads @=>344(1) — Injuries' at Crossing — Pleading.</p> <p>In an action against a railroad for death on a crossing, it was necessary, in a count restrictively describing the conditions under which the alleged negligence of defendant’s agents proximately caused the death, that any possible implication that deceased was at the time a trespasser on defendant’s track should be excluded by appropriate averments.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1107.]</p> <p>2. Railroads @=>346(1) — Injuries at Crossing — Burden of Proof — Statute.</p> <p>By Code 1907, § 5476, a railroad has the burden to acquit itself of negligence in killing a person on a crossing with its train while he was crossing the railway.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1117.]</p> <p>3. Railroads &wkey;274(5) — Warning When Leaving Station — ¡Duty of Engineer— Statute.</p> <p>The duty of an 'engineer with respect to warning when'leaving a station whereat a stop has been made is fixed by Code 1907, § 5473, requiring him to blow the whistle or ring the bell immediately before or at the time of leaving the station or stopping place.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 872.]</p> <p>4. Evidence @=>594 — Positive Testimony of • Fact — Rebuttal by Possibilities.</p> <p>The mere possibility that a result might have been wrought in a certain way or by certain means cannot serve to contradict or reflect on the credibility of positive testimony of facts, not- opinions, otherwise not impeached or rendered of doubtful verity.</p> <p>• [Ed. Note. — For other cases, see Evidence, Cent, Dig. § 2431.]</p> <p>5. Railroads @=>348(2) — Injuries at Crossing-Sufficiency of Evidence.</p> <p>. In an action against a railroad for a death at a crossing, evidence held insufficient to support finding that the proximate cause of decedent’s death was the negligence charged in an amended count for which the road was responsible, so that the court erred in refusing defendant the general affirmative charge.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1139.]</p> <p>Gardner and Thomas, JJ., dissenting.</p> <p><§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Chattel Mortgages <&wkey;150(l) — Record-Constructive Notice.</p> <p>Whatever rights the mortgagee acquired through a subsequent mortgage on crops were subordinate to the rights of prior mortgagees acquired through a previously executed and recorded mortgage, the registration of which afforded constructive notice -to the subsequent mortgagee of its existence.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Oent. Dig. §§ 246-248, 252.]</p> <p>2. Chattel Mortgages &wkey;>150(l) — Duty of Prior Mortgagees — Notice to Subsequent Mortgagee.</p> <p>There was no obligation on tbe prior mortgagees of a crop to notify a subsequent mortgagce of the existence of their claim, notice of which was imputed to the subsequent mortgagee by the operation of the registration laws.</p> <p>(SxxsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 246-248, 252.]</p> <p>3. Discovery <&wkey;19 — Pleading and Proof.</p> <p>Where the object sought by a bill in equity is discovery and relief, though only the inhibition of further prosecution of an action at law, complainant must aver and prove not only the materiality of the matter of -which he would have discovery, but aléo -that it is indispensable to establishment of his cause or defense, and that he is unable otherwise to make his proof.</p> <p>[Ed. Note. — For other cases, see Discovery, Cent. Dig. §§ 20-26.]</p> <p>4. Discovery &wkey;>19 — Pleading—Interrogatories — Statute.</p> <p>A bill seeking discovery, and relief consequent thereupon, or discovery only, disclosing on its face that complainant’s adversary had answered interrogatories propounded in a pending action at law under the statutory system for the examination of one party by another prescribed by Code 1907, § 4049 et soq., in disclosure of the relevant material matters sought to be discovered through answer to the bill, is subject to' demurrer.</p> <p>[Ed. Note. — For other eases, see Discovery, Cent. Dig. §§ 20^26.]</p> <p>5. Discovery <&wkey;3 — Equity of Bill — Remedy at Law by Interrogatories — Statutes.</p> <p>Where complainant, who filed bill for discovery- and relief, could have secured all the desired evidence of facts, as well as books, etc., through the use, in actions at law pending against him, of the statutory system for the examination of one party by another through interrogatories, prescribed by Code 1907, § 4049 et seq., the bill did not have equity.</p> <p>[Ed. Note. — For other cases, seo Discovery, Cent. Dig. §§ 3, 4.]</p> <p>C. Chattel Mortgages <&wkey;17 — Interest of Mortgagor.</p> <p>The mortgagor of land to a loan company, who, when he executed a subsequent crop mortgage, and when he brought the crop into existence and gathered it, was in possession of the land, had such an interest that he could mortgage the crops to grow or that were grown thereon.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 55-58.]</p> <p>7. Chattel Mortgages &wkey;?129 — Security or Conveyance.</p> <p>In a court of equity, a mortgage is a security, and not a conveyance, in the sense that title is thereby divested.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 216.]</p> <p>©=^For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes</p>

Wert, Judge. Action by Mrs. E. M. Hayes against the Pacific Mutual Life Insurance Company, Judgment for plaintiff, and defendant appeals. Flea 3 alleged: That insured, Arthur J. Maynor, failed to pay the premium which said policy stipulated he should pay September 7, 1913, or else said policy should become lapsed and void, unless the same should be reinstated by Arthur J. Maynor’s warranty of good health and condition.

<p>Appeal from Law and Equity Court, Hale County; Charles E. Waller, Judge.</p> <p>Action by J. A. Mathews against the Alabama Great Southern Railroad Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1, Corporations <&wkey;79 — Action oe Stock Subscription — Jury Question.</p> <p>Where there was no authenticated certificate of stock to show that plaintiff was a stockholder in defendant corporation and there was evidence that defendant had denied plaintiff’s ■ownership of stock, contending that an agent had received the money with which the plaintiff intended to pay for the stock and embezzled it to the plaintiff’s loss, it cannot be said as a matter of law that plaintiff had not the right to recover the money so paid to the agent for stock which he did not get; hence the court erred in giving the general affirmative charge for defendant at the trial, and properly set a judgment for plaintiff aside and granted a new trial.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 186-193.]</p> <p>2. Corporations <&wkey;79 — Subscription oe Stock.</p> <p>Where plaintiff paid defendant’s agent for stock which he did not get, if any act of rescission on Ms part was necessary, the bringing of the suit to recover the money served that purpose.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 186-193.]</p>

P. Stiles, Judge. Application by Mattie Curry for homestead and personal exemptions. Opposed by Cordelia Barnes. From a decree sustaining exceptions to the exemptions, the applicant appeals.

<p>1. Evidence &wkey;>343(l) — Copy of Public Record — Application for Automobile License-Statute .</p> <p>Under Code 1907, § 3983, providing that all transcripts of books or papers required by law to be kept in the office of any public officer when certified by the proper custodian must be received in evidence, in an action for injuries in collision ■ with an automobile, a copy of defendant’s application for automobile license, _ properly certified by the custodian of the original, was admissible, though the original was not verified, and did not conform to the requirements of law authorizing issuance of license; an application for license being a paper required by Acts 1911, p. 634, to be kept in a public office.</p> <p>2. Appeal and Error <&wkey;1051(3) — Harmless Error — Evidence.</p> <p>In such action any error in admitting a copy of defendant’s application for automobile license was harmless, where defendant himself testified and admitted that he was using the automobile on his own account, and had full control, except over its mere mechanical manipulation.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4164, 4167.]</p> <p>3. Municipal Corporations <&wkey;705(12) — Automobile Accident — Liability of Person Not Owning Car.</p> <p>Where defendant was driving in an automobile in full control thereof, except that he did not control its mere mechanical manipulation, ownership of the machine was not necessary to fix liability upon him for injuries to plaintiff in a collision.</p> <p>[Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. § 1515.]</p> <p>4. Trial &wkey;>114r — Argument of Counsel.</p> <p>In an action for injuries to a boy whose bicycle collided with an automobile, where defendant sot up that the car was owned by his wife, the remarks of plaintiff’s counsel in argument that the certificate of the secretary of state showed the license was paid by defendant, that if they had sued the wife she would have come into court and said the automobile belonged to her husband, or was loaned to him, etc., were not reversible error, since remarks sufficient to reverse must be made as of fact, and the fact must be unsupported by the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 275-278, 296.]</p> <p>5. Municipal Corporations &wkey;>706(4) — Collision with Automobile — Evidence of Ownership — License.</p> <p>In such action the fact that defendant applied for a license to operate the automobile was a circumstance to which the jury might look in determining the fact of ownership, whether in defendant or in his wife, and if the wife had claimed personally to own the machine, and it had been sought to charge her with ownership, that she had not applied for license, and that another had applied for and been granted license to operate the car, would' have been a circumstance admissible in evidence on the issue.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518.]</p> <p>6. Trial <&wkey;121(5) — Trial on Illegal Evidence-Argument.</p> <p>Parties have a right to try their cases on illegal evidence, if they desire, and, if they do so, counsel have the right to argue the evidence to the jury.</p> <p>7. Municipal Corporations &wkey;>700(4) — Automobile Accident — Evidence.</p> <p>In an action for injuries to a hoy when his bics'cle collided with an automobile, proof as to bow the car in collision was decorated, there being evidence that a certain car had been used in a parade, and that after the parado defendant was using the same car to go home, was admissible as tending to identify the car, and to show the uses to which defendant and others were putting it, though a negro fair was in progress and the car had been used in connection therewith.</p> <p>[Ed. Note. — For other cases, see Blunioipal Corporations, Cent. Dig. § 1518.]</p> <p><§x^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

A. Sharpe, Judge. Bill by Mattie I. Macke against Frank C. Macke and others. From a decree overruling demurrer to the bill, respondents appeal. Bill by Mattie I. Macke against Frank C. Macke, Frederick G. Macke, and George H. Davis.

<p>Corporations <&wkey;423 — Liability for Agent’s Tort — Killing of Servant.</p> <p>Where the general agent or manager of defendant corporation in the work of constructing a railway shot and killed an employs after termination of a quarrel over whether the employé had performed his contract to build a part of the road, defendant company was not liable for its manager’s act, since it was not in the line of his employment and duties.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1692-1695, 1903, 1906.]</p> <p><§^For oilier eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Chancery Court, Jefferson County; A. H. Benners, Chancellor.</p> <p>Bill by the American Trust & Savings Bank against James H. 1-Iard. and others. Prom adverse rulings on their demurrers to the bill, respondents appeal.</p>

<p>Appeal from City Court of Birmingham; John C. Pugh, Judge.</p> <p>Action by Lucy E. Goodhue, as administratrix of her deceased husband, against the Empire Coal Company. Judgment for plaintiff, and defendant appeals.</p> <p>The action is for the wrongful death of plaintiff’s intestate. The case was tried on four counts. Counts 1, 2, and 5 were under the Employers’ Liability Act; while count 0 declared on the common law duty to furnish deceased a safe place in which to work. The measure of recoverable damages under count 6 was therefore entirely different from that under any one of the other three counts, the damages being purely punitive if recovery was had under count 6, and purely compensatory if recovery was had under any of the other counts. The trial was had under the general issue as to each of the counts, with leave and consent to the giving in evidence of any matter of special defense.</p>

<p>1. Statutes &wkey;64(4) — Partial Invalidity— Effect — Appointment and Election of Officers.</p> <p>Since Loc. Acts 1911, p. 154, created a board of revenue for Shelby county and provided for its appointment by the Governor, and because the two divisions of the statute are Inseparable, one elected under void local Acts 1915, p. 199, cannot defeat quo warranto pro-i ceedings on the theory that the portion of the 1911 act providing for executive appointment was invalid, and relator’s appointment thereunder void, and that therefore respondent’s election will be imputed to Code 1907, § 334, since the statute, if invalid in part, is entirely invalid.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 61, 195.]</p> <p>2. Statutes &wkey;>125(5) — Subjects and Titles — Validity.</p> <p>Loc. Acts 1911, p. 154, “to establish a board of revenue for Shelby county and to abolish the board of county commissioners thereof,” does not violate Const. § 45, by including the provision for appointment of the officers by the Governor; the subject being fairly embraced in the title.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 187,' 188.]</p> <p>3. Quo AVarranto <&wkey;24^-lNTEREST of Parties — Effect.</p> <p>In quo warranto directed against a member of the board of revenue, it is of no consequence that some incidental benefit may result to the relator from the ouster of the respondent.</p> <p>[Ed. Note. — For other cases, see Quo AVarranto, Cent. Dig. § 27.]</p> <p>4. Quo AVarranto <&wkey;24 — Interest of Parties — Effect.</p> <p>In quo warranto directed against a member of the board, of revenue, tlie fact that the relator personally assumed the office under the same election as the respondent could not be urged against the relator personally as an estoppel, since it could not affect the right of the state to oust the respondent from a public office unlawfully held.</p> <p>[Ed. Note. — For other cases, see Quo AVarranto, Cent. Dig. § 27.]</p> <p>5. Quo AVarranto <&wkey;54^BuRDEN of Proof.</p> <p>In quo warranto the respondent is bound to show, not merely a commission from the Governor, but also that the commission was issued as required by law either after election or upon appointment.</p> <p>[Ed. Note. — For other cases, see Quo AVarranto, Cent. Dig. § 61.]</p> <p>6. Statutes <&wkey;8%(l)— Enactment —Local Acts.</p> <p>Loc. Acts 1915, p. 199, as to election of county officers, is void because violative of Const. § 106, in that the journals of the houses do not affirmatively show that the prescribed notice for local act was given, and therefore an election held under such act is invalid, and does not authorize the Governor to issue a commission , to the persons receiving the greatest number of votes at such election.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 6.]</p> <p>7. Counties <&wkey;62 — Officers—Appointment —Validity.</p> <p>AVhere county officers were, chosen at a void election, their commissions issued by the Governor could not be operative as an executive appointment to fill a vacancy.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 87-90.]</p> <p>8. Evidence <&wkey;44 — Judicial Notice — Incumbents of Office.</p> <p>AVhere it appears that relator was appointed by the Governor to the office of president of the -board of revenue of Shelby county under Loc. Acts 1911, p. 154, for a term commencing May 22, 1915, and ending May 22, 1919, the Supreme Court will judicially know that there was no vacancy in said office on January 15, 1917, at which time respondent took possession of the office under an election held under a void local act, so that the Governor’s commission issued to respondent in pursuance of such- election could not operate as an appointment to fill a vacancy.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. § 66.]</p> <p><&wkey;For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes</p>

<p>1. Executors and Administrators <&wkey;411— Judgments — Contestability.</p> <p>Under Code 1907, § 2796, providing that, if an estate is declared insolvent after judgment against the executor or administrator for any debt or damages against the estate, the administrator may file a certified copy of the decree of insolvency with the clerk of court, who shall certify to the probate court a copy of the judgment against the estate, after which no execution shall issue or be further enforced against the executor or administrator or sureties personally, a judgment so secured and so certified not only relieves administrators from personal liability, but makes the judgment a fixed charge against the estate, so that it is thereafter incontestable in the probate court.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1620-1623.J</p> <p>2. Executors and Administrators <&wkey;411— Judgments — Contestability.</p> <p>The application of such statute follows an estate in its removal to a court of equity in spite of Acts 1911, p. 574, providing that in chancery administration of estates the court may proceed according to its own rules.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1620-1623.]</p> <p>3. Executors and Administrators <@=411— Judgments — Contestability — Equitable Relief.</p> <p>Where a creditor of an estate made his judgment incontestable under Code 190-7, § 2796, a bill subsequéntly filed for removal of the estate to chancery, and for relief against such judgment, alleging forgery of and want of consideration for the' note on which it was based, was insufficient showing of fraud, as not extrinsic or collateral to the matters determined by the judgment, and the complainant could have no relief.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1620-1623.]</p> <p>4. Executors and Administrators <&wkey;411 — > Jud gments — Contestability.</p> <p>Code 1907, § 2796, precludes recourse to the equitable doctrine that equity will, in a proper case, enjoin a judgment holder from enforcing it to the prejudice of one who was not a party or privy in the cause resulting in his judgment.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1620-1623.]</p> <p><&wkey;For other eases see same topic and KEY-NUMBER in.all Key-Numbered Digests and Indexes .</p> <p>5. Executors and Administrators <&wkey;411— Judgments — Contestability—Statute.</p> <p>Validity-of Code 1907, § 2796, is not subject to question. '</p> <p>[Ed. Note. — For oilier cases, see Executors and Administrators, Cent. Dig. §§ 1620-1623.]</p> <p><@=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Cullman County; R. C. Brickell, Judge.</p> <p>Action by Emil Aldrichs against A. A. Rollo. Judgment for defendant, and plaintiff appeals.</p>

Equity Court, Walker County; T. L. Sowell, Judge. Action by the Devon Manufacturing Company against the Southern Express Company for failure to deliver goods and for a conversion. From a judgment for defendant, plaintiff appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 450.

W. Ferguson, Judge. O. W. Clark sued I. W. Ross and Augustus Benners, as receivers of the Birmingham, Ensley & Bessemer Railway Company, for injuries received at a crossing. Judgment for plaintiff, and defendants appeal.

J. Curtis, Judge. Suit for specific performance by the Black Diamond Coal Mining Company against the Jones Coal Company. From a judgment sustaining a demurrer to the bill and dissolving a temporary injunction, plaintiff appeals. Bill by the Black Diamond Coal Mining Company, a corporation, against the Jones Coal Company, a corporation, each doing business in Walker county, Ala., for the specific performance of a contract.

S. Van de Graaf, Judge. Proceedings before the county board of equalization, fixing value of certain property for taxation. From the value fixed upon her property Mary M. Marre appealed to the circuit court, and from the judgment there rendered appeals to this court.

<p>Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.</p> <p>Proceeding by Horace C. Wilkinson against J. P. Stiles, as Judge. ■ From the decree rendered, petitioner appeals.</p>

P. Almon, Judge. Action by Sallie Harrison, as administratrix, against the Sloss-Sheffield Steel & Iron Company, for damages for the death of her intestate. Judgment for plaintiff, and defendant appeals.

Miller, Judge. Action by Max Sington against the Birmingham Railway, Light & Power Company for damages for personal injuries. Judgment for defendant, and plaintiff appeals. Most of the pleadings and facts sufficiently appear.

<p>1. Equity &wkey;>418 — Decree Peo Coneesso.</p> <p>A final decree based upon decrees pro eonfesso, taken without notice after defendants had regularly entered an appearance, some by demurrer and all by a plea, will be reversed.</p> <p>@^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 952-971.]</p> <p>2. Appeal and Error <&wkey;1173(l) — Review-Moot Case as to Part of Appellants. The fact that a case has become moot as to some of the appellants will not exclude consideration of the appeal as to the others, there being a severance in the assignments of error, and the appellants who are no longer necessary parties can be discharged by the trial court.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4562-4567, 4569, 4656.]</p>

<p>On Rehearing.</p> <p>Equity <&wkey;418 — Decree Pro Confesso.</p> <p>Although the answer filed to a bill of complaint was not sufficiently complete, a decree taken pro confesso subsequent to such filing was not authorized, and a final decree in part based upon such decree pro confesso, will be reversed.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 952-971.]</p> <p>Mayfield, J., dissenting.</p> <p><S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

H. Benners, Chancellor. Bill by the State of Alabama, for the use of Jefferson County, against the Jefferson County Bank, etc. Decree for defendant,, and plaintiff appeals.

County; R. C. Brickell, Judge. Action by Newt Butner aga.tust the Huntsville Knitting Mills for damages for injuries to his minor son. Judgment for plaintiff, and defendant appeals. Most of the facts sufficiently appear. The following charges were refused to defendant: (1) If the jury believe from the evidence in this case that plaintiff emancipated his son Mason Butner before the injury in this case occurred, he is not entitled to recover.

<p>Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.</p> <p>Proceeding by Guy V. and G. D. O’Rear against'the Sloss-Sheffield Steel & Iron Company. Judgment for petitioners, and respondent appeals.</p>

<p>Appeal from Slielby County Court; E. S. Lyman, Judge.</p> <p>Ejectment by Dutch Cruse and others against Douglas W. Kidd and others. Judgment for defendants, and plaintiffs appeal.</p>

S. Dyman, Judge. Bill by Cecil Browne against James M. Kidd and others, to quiet title to land. Decree for complainant and respondents appeal.

<p>Appeal from Circuit Court, Morgan County; R. O. Brickell, Judge.</p> <p>Action by Stewart Bros, against W. T. Ransom in statutory ejectment. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from City Court of Birmingham; John G. Pugh, Judge.</p> <p>Action by Sam Bradford against the Clinton Mining Company, for personal injury. Judgment for plaintiff, and defendant appeals.</p> <p>The first count charges that defendant was operating a mine in Jefferson county, Ala., and .that plaintiff was in the employment of defendant company, and at said time and place, while plaintiff .was engaged in the performance of his duties as such employé, he was injured as aforesaid. Count 5 adopts count 1 down to the allegation of negligence, and adds:</p> <p>■ Owing- to the gross and wanton negligence of the master or employer, or of some person in the service of defendant, and intrusted by it with the’ duty of seeing that the ways, works, etc., were in proper condition, which defect consisted in this: The roof of the mine in which plaintiff was working was defective, and plaintiff avers that the fact that said roof was defective was known to defendant, or to the person so mentioned as being in charge of the ways, works, etc., and that defendant or said person knew that if said roof remained in said defective condition, plaintiff would likely or probably be killed or seriously injured in his body and person, but notwithstanding said knowledge, defendant grossly and wantonly and recklessly permitted said roof to remain in said defective condition, and plaintiff was proximately injured from said gross and wanton negligence.</p> <p>The following written charges were refused to defendant:</p> <p>(A) The court charges the jury that if you believe the evidence in this case your verdict must he for defendant.</p> <p>(3) Affirmative, charge against finding for plaintiff under count 5.</p> <p>(4) Same as to count 1.</p> <p>(18) I charge you that plaintiff is not in this ease entitled to punitive damages, even though he might be entitled to recover, and all the argument of plaintiff’s attorney in reference to punishing the defendant or making an example of it should be disregarded by either.</p> <p>The following are written charges given for plaintiff:</p> <p>(26) Even if you believe from the evidence that plaintiff knew of the dangerous condition of the roof, and that a prop was needed, and knew that props had not been furnished, and continued after such time to make conditions more dangerous, by the work which he was doing, that would not defeat his recovery if you are reasonably satisfied from, the evidence that plaintiff is entitled to recover on count 5 of his complaint.</p> <p>(28) If you find for plaintiff under the fifth count of the complaint, you may award him, in addition to compensatory damages, such damages as in your sound discretion you see fit to punish defendant for its said action, and to deter othex-s in like business from such wrongdoing in the future.</p> <p>(29) I charge you that defendant’s plea of contributory negligence constitutes no defense to count 5 of plaintiff’s complaint, and if you are reasonably satisfied fx-om the evidence that p.laintiff was injured by reason of the gross negligence and x-eckless act or omission to act, on the part of defendant, with the knowledge on defendant’s part that its action or failure to act would likely or probably i*esult in injury to plaintiff, and with a reckless disregard of whether plaintiff was injured or not so failed to act, then plaintiff would be entitled to recover, irx-espective of the pleas of contributory negligence.</p> <p>The following is charge 6 refused to defendant :</p> <p>If the jury believe from the evidence that defendant reserved no right to interfere with the details of Sam Bx-adford’s work, hut only to require it to be done by him, and by the men who were working under him, so as to conform to the mining rules, then I charge you that Stewart Hollins would be an independent contractor, and plaintiff would not be liable for the injuries received by him.</p> <p>Charge 13:</p> <p>If you believe from the evidence that plaintiff was paid by the tx-am, and employed his own helpers, and their time was taken out of the amount which defendant was due him, and the number of tx-ams, and plaintiff had entire charge of the details, subject only to the supervision of the bank boss in seeing that the mining rules were complied with, then plaintiff could not recover in this case.</p> <p>The court gave plaintiff the following charge:</p> <p>(25) If plaintiff in this case was a mere servant of defendant representing and carrying out the will and direction of the Clinton Mining Company, not only as to the result to be accomplished, but also as to the means by which it was to he accomplished, he was not an independent contractor, but an employé, and the mere fact that he was paid by the piece or the job would not make him an independent contx-actor.'</p> <p>(27) I charge you that the law does not impose on an employé the duty of notifying his employer of a defect of whidi the employer already has notice.</p>

P. Almon, Judge. Assumpsit by the Winfield Bank & Trust Company against T. A. Roberts. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

<p>Appeal from Chancery Court, Montgomery County; O. S. Lewis, Chancellor. •</p> <p>Suit for divorce by Mary W. Barrington against R. L. Barrington. Decree for plaintiff, and defendant appeals.</p>

<p>Appeal from Chancery Court, J-efferscm Count#; A. H. Benners, Chancellor.</p> <p>Action by F. M. Drennen against Joseph D. Cooper and others. From judgment for defendants, plaintiff appeals.</p>

' Appeal from Chancery Court, Jefferson County; A. H. Benners, Chancellor. Bill by Edward E. Evans and others against Mrs. Grace Evans and others to enforce a trust on a fund distributed by decree of the probate court. From the decree of the chancellor, defendants appeal.

<p>Appeal from City Court of Selma; J. W. Mabry, Judge.</p> <p>Action by the Alabama Penny Savings Bank against the Alabama Fidelity & Casualty Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Wills &wkey;>282 — Mental Capacity — Pleading.</p> <p>Contestants’ allegations that testator was of unsound mind when executing his will held, sufficient to raise the question of decedent’s mental capacity.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. '§ 640.]</p> <p>2. Wills <&wkey;282 — Undue Influence — Pleading.</p> <p>Contestants’ allegations that testator was under the control of certain persons when executing his will, and that the will was the result of undue influence exercised by them, sufficiently raises the question of undue influence as against a demurrer.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 640.]</p> <p>3. Wills &wkey;>282 — Fraud—Pleading.</p> <p>Contestants’ allegations that the will’s execution was procured by fraud of certain persons, specifying alleged fraudulent misrepresentations made by them, held sufficient.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 640.]</p> <p>4. Trial <&wkey;240 — Requested Instructions— Necessity of Giving.</p> <p>A requested instruction that there is no evidence of certain facts, or supporting a particular proposition, need not be given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 561.]</p> <p>5. Trial <&wkey;253(3) — Instructions—Ignoring Issues.</p> <p>A requested instruction to find for proponent on the question of testator’s mental capacity, if the jury believes the evidence, is properly refused, where undue influence was also an issue.</p> <p>[Ed. Note. — For other cases, see'Trial, Cent. Dig. § 616.]</p> <p>6. Trial <&wkey;253(3) — Instructions-^Ignoring Issues.</p> <p>A requested instruction that, if testator’s mind was sound, etc., the issues should be found in favor of proponent, was properly refused, where undue influence was also an issue.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 616.]</p> <p>7. Trial <&wkey;240 — Argumentative Instructions. '</p> <p>Requested instructions defining undue influence held properly refused, because argumentative.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 561.]</p> <p>«EtaaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>8. Wills &wkey;>332 — Undue Influence — Instructions.</p> <p>In a will contest, instructions that undue influence must he determined by the effect produced, rather than the means used, and that it may be caused 'by physical force, mental coercion, or importunity, etc., hold proper.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 785.]</p> <p>9. Evidence &wkey;>472(8), 506 — Mental Capacity — Opinion Evidence.</p> <p>In a will contest, neither an' expert nor non-expert witness can give an opinion as to whether testator was mentally competent to execute the will.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2194, 2309.]</p> <p>10. Evidence <&wkey;49S% — Province of Court and Jury — Qualification of Witness.</p> <p>Whether a nonexpert witness is qualified to give an opinion upon the soundness of testator’s mind rests in the sound judicial discretion of the trial court.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2290, 2291.]</p> <p>11. Appeal and Error <&wkey;971(2) — Decisions Reviewable — Discretion of Trial Court.</p> <p>A trial court’s decision as to whether a non-expert witness was properly qualified to give an opinion i-egarding- testator’s soundness of mind will not be reversed, unless plainly erroneous.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3852.]</p> <p>12. Evidence <&wkey;OT (3) — Mental Capacity-Opinion Evidence.</p> <p>In a will contest for lack of mental capacity, a properly qualified nonexpert witness may state whether the testator was capable of transacting ordinary business, provided, if his answer be negative, the facts upon which his opinion is based are also stated.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2297.]</p> <p>13. Wills <&wkey;53(l) — Mental Capacity — Admissibility of Evidence.</p> <p>Testimony that the testator’s mind did not possess its full strength when the will was made held admissible. <</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 111, 112, 126, 130.]</p> <p>14. Exceptions, Bill of <&wkey;26 — Construction.</p> <p>Equivocal statements in a bill of exceptions are resolved against the exceptor.</p> <p>[Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 33.]</p> <p>15. Exceptions, Bill of <&wkey;26 — Construction — Reserving Grounds for Review.</p> <p>An objection that a question called for witness’ opinion “and not properly qualified” refers to the witness’ qualifications, and not to the point that the question was not properly limited as to time, under the rule that equivocal statements in a bill of exceptions will be resolved against the exceptor.</p> <p>[Ed. Note. — For other eases, see Exceptions, Bill of, Cent. Dig. § 33.]</p> <p>16. Appeal and Error &wkey;>1050(l) — Harmless Error — Admitting Evidence.</p> <p>Any error in admitting evidence regarding testator’s ability to transact business is harmless, where witness stated he hardly knew, but supposed it would depend on the kind of business.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.]</p> <p>17. Evidence <&wkey;501(3) — Mental Capacity-Opinion Evidence.</p> <p>A nonexpert witness’ opinion that testator was mentally incapable of transacting ordinary business is inadmissible, where the facts upon which such opinion was based were not stated.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2297.]</p> <p>18. Appeal and Error <&wkey;232(2) — Reserving Grounds for Review — Objections.</p> <p>An objection that a witness was not qualified to answer a question saves that point for review, although the question was thereafter qualified in another respect before being answered, and the objection was not rehewed to the amended question.</p> <p>LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. '§§ 1430, 1431.]</p> <p>19. Wills <&wkey;53(4) — Mental Incapacity-</p> <p>Admission of Evidence.</p> <p>Where there is other proof tending to establish testator’s mental incapacity, evidence that his ancestors and blood relatives became insane is admissible.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 122.]</p> <p>Sayre, J., dissenting.</p> <p>étepFor other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

O. Brickell, Judge. Assumpsit by I-I. T. Manson against Mrs. I-I. E. Vogler and P1. G. Hartun. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

Miller, Judge. Taxpayer’s suit for injunction by R. E. Osborn against M. V. Henry, as treasurer of Jefferson County, and others. Decree sustaining demurrer to the bill, and plaintiff appeals.

<p>Appeal from Chancery Court, Jefferson County; A. H. Benners, Chancellor.</p> <p>Action by James Yeitch and others against the Woodward Iron Company. From judgment for defendant, plaintiff's appeal.</p>

<p>1. Bills and Notes <&wkey;476(l) — Plea — No Consideration.</p> <p>A plea, reading, “There was no consideration for the note sued on,” is not subject to any possible ground of demurrer.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 1519.]</p> <p>2. Bills and Notes <&wkey;473 — Pleas — Bóna Fide Holder.</p> <p>In an action on a renewal note, where the complaint does not disclose that the plaintiff banlt^was even a purchaser of defendant’s obligation on which the note was based, the sufficiency of the pleas thereto must be determined without reference to the principles available where the complaint discloses that plaintiff was a bona fide holder of the note of which that sued on is a renewal.</p> <p>[Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 1503-1507, 1555.]</p> <p><§=sFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>3. Bills and Notes &wkey;112 — Consideration —Partial Illegality.</p> <p>In view of Code 1907, § 4579, making rebates on contracts of insurance illegal, where a part of the consideration of notes was an unlawful promise to accord the njaker such rebate, there was a partial illegality of consideration which rendered the notes void.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 222.]</p> <p>4. Bills and Notes &wkey;>140 — Consideration —Partial Illegality — Effect on Renewal Notes.</p> <p>Where original notes were affected with illegality, their renewal was subject to the same invalidating consequences.</p> <p>[Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 355-359.]</p> <p>5. Bills and Notes <@=>478 — Defenses—Illegality of Consideration. .</p> <p>-In an action on a renewal note, a plea, alleging that a portion of the consideration for the original note was a promise to give rebates on insurance contracts, in violation of Code 1907, § 4579, was a good defense to the complaint as framed.</p> <p>[E'd. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 1522, 1523.]</p> <p>6. Bills and Notes <&wkey;477 — Pleading—Plea —Sufficiency.</p> <p>In an action on a renewal note, a plea which did not show that defendant had relied or acted upon alleged false statements made by the agent of the payee of the original note was demurrable.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1524, 1525, 1558.]</p> <p>7. Corporations &wkey;>116 — Note for Stock-Defenses — False Representation.</p> <p>Statements, made by the agent of an insurance company to induce the execution of notes in payment of corporate stock, that if the subscriber would purchase stock in the company such stock would pay him annual dividends of at least 12 per cent., and that he would not have to actually pay the notes, hut that they would be paid from such dividends, was a statement, of the opinion of the agent, and not a representation which would be a defense to an action on the notes, or a renewal thereof.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 493, 494, 496.]</p> <p>8. Bills and Notes <@=>140 — Defenses — False Representation.</p> <p>In an action on renewal notes, that the agent of an insurance company to which the original notes were payable falsely represented the amoupt of the capitalization of the company, and defendant relied upon this representation as an inducement to his purchase of stock and execution of the original notes, was a good defense.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 355-359.]</p> <p>. 9. Pleading <&wkey;362(5) — Striking Out — Amendment of Plea.</p> <p>In an action on renewal notes, where a plea as amended could not be read to any intelligent effect because of confusion resulting from inapt description of the place in the -original plea at which the amending expressions should be set in, the trial court -cannot be put in error for striking it.</p> <p>10. Novation <&wkey;6 — Execution of Renewal Note to Another Payee.</p> <p>Even though there was a change in the name of the payee in renewal notes to plaintiff hank to whom by succession the original indebtedness had become payable, the execution of such renewal note to such payee was not a novation, since the same indebtedness was the basis of the promise executed to such payee; it not appearing that the original indebtedness was extinguished when the renewal note was taken.</p> <p>[Ed. Note. — For other cases, see Novation, Cent. Dig. § 6.]</p> <p>11. Bills and Notes.<&wkey;356 — Bona Fide Holder — Certificate, of Deposit as Consideration.</p> <p>Where a hank did not pay a certificate of deposit given as consideration for notes, it did not part with value so as to constitute it a bona fide holder.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §. 908.]</p> <p><S=>For other cases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes</p>

Certiordri to Court of Appeals. Joe Bell was convicted of violation of the prohibition law, and appealed to Court of Appeals where judgment was affirmed (75 South. 181), and defendant petitions for certiorari.

J. Curtis, Judge. Action by B. R. Boshell against the receivers of the St. Louis & San Francisco Railroad Company. Judgment for defendants, and plaintiff appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts 1911. Appellant bad been engaged in the mercantile business at Townley, Walker county, Ala., for a period of 26 years, and had received carload shipments of freight from the defendant company during said period.

B. Smith, Judge. Bill by P. M. Edwards and wife against the Alabama Penny-Prudential Savings Bank and another. Decree for defendants, and complainants appeal.

W. Haralson, Judge. Action by ,Jess E. Hollind against tbe Farmers’ & Merchants’ Bank for tbe statutory penalty for failure to mark satisfied tbe record of a mortgage. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts 1911. The facts sufficiently appear.

<p>1. Dead Bodies <&wkey;9 — Rights oe Relatives.</p> <p>It is well-settled law in this state that there is at least a quasi legal right in, to, or concerning- dead bodies, which the courts will recognize and protect by proper action.</p> <p>[Ed. Note. — For other cases, seo Dead Bodies, Cent. Dig. §§ 13, 14.]</p> <p>2. Carriers <&wkey;135 — Transportation oe Dead Bodies — Rights oe Brother or Sister. .</p> <p>A brother or sister may, in a proper case, recover damages as for mental pain and anguish against a common carrier, resulting from its negligence or breach of contract in the carrying or delivering of a corpse.</p> <p>[Ed. Note. — For ' other cases, see Carriers, Gent. Dig. §§ 557-559, 599-602, 603%-604%.]</p> <p>3. Commerce <&wkey;33 — Interstate Shipment oe Dead Bodies — Negligence—Recovery.</p> <p>Plaintiff sued defendant carrier to recover damages for negligence in the carrying or delivering of the corpse of her brother consigned to her in Alabama and shipped from Kansas. Defendant had no agent at the place of delivery,, and the coffin containing the corpse was placed on a truck and wheeled under a shelter or shed, but got wet from rain blowing in or breaking through the top thereof. Held, that the damages sustained were the consequences of the breach of the contract for an interstate shipment governed by the federal laws, and therefore plaintiff, having failed to show any. damage other than mental anguish, could not recover.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 26, 81.]</p> <p>4. Torts <&wkey;&wkey;ToRTS Independent oe Contract — What Law Governs.</p> <p>Torts not dependent upon contract are governed by the laws of the state in which the toft is committed.</p> <p>[Ed. Note. — For other cases, see Torts, Cent. Dig. § 2.]</p> <p>5. Commerce <&wkey;8(12) — Interstate Shipments — What Daw Governs.</p> <p>The rule that a contract for interstate shipment of goods is governed by the law of the place where the contract is made has no application, where the subject-matter of the contract is one of national cognizance, and Congress has enacted laws for its complote regulation.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5.]</p> <p><§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>6. Carriers <&wkey;134 — Negligence of Carrier.</p> <p>Where a sister sued a carrier for damages in allowing a coffin containing the body of her brother to remain on the platform in the rain, evidence that she had agreed with her brother, who paid express charges, to pay a part thereof, showed no loss in property or estate, authorizing any recovery other than for mental anguish.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 588-592, 607.]</p> <p>©r^For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Landlord and Tenant <&wkey;152(l) — Duty to Repair.</p> <p>The landlord is not required to keep the tenant’s premises in repair or condition, in the absence of stipulation, which will not be implied from doing certain work for several months after the renting.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. ■§§ 538, 546, 554.]</p> <p>¡S^jJTor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Appieal from Circuit Court, Calhoun County ; Hugh D. Merrill, Judge. Bill by R. A. Lapsley and another against the Anniston Banking & Loan Company to quiet title to land. Decree for complainants, and respondent appeals.

Action by Noah Means against Abraham Bros. There was judgment for plaintiff, and defendant appealed to the Court of Appeals (75 South. 1S7), where the cause was reversed and remanded, whereupon plaintiff brings certiorari.

<p>Appeal from Circuit Court, Tallapoosa County; Lum Duke, Judge.</p> <p>Action by Corine Harrison against C. E. Harrison. Judgment for plaintiff,' and de< fendant appeals.</p>

<p>Appeal from Law and Equity Court, Morgan County; Thomas W. Wert, Judge.</p> <p>Action by Mrs. P. S. Malone against the Louisville & Nashville Railroad Company. Judgment for defendant, which upon motion of plaintiff! was set aside, and new trial ordered, and defendant appeals.</p> <p>The charges referred to as having been given for plaintiff are as follows:</p> <p>(7) If, from the evidence, you are not reasonably satisfied that the agent or servant of defendant purposely and intentionally accused plaintiff of stealing property of defendant in or from the dining car, then it is your duty to return a verdict for defendant, under counts 1, 2. 3, and 5.</p> <p>(10) Same as 7.</p>

<p>Adverse • Possession &wkey;>114(l) — Between COTERMINOUS OWNERS.</p> <p>Evidence held insufficient to establish title by adverse possession.</p> <p>[Ed. Note. — For other eases, see Adverse Post session, Qent. Dig. §§ 682, 683.]</p> <p>other cases see same topic a,nd KEY-NUMBER in all Key-Numfcered Digests and Indexes</p>

<p>1. Execution <&wkey;297 — Redemption—Requisites — Tends,®.</p> <p>Under Code 1907, §§ 5746-5749, redemptors of land sold under execution must pay or tender the required amount to the purchaser or his vendee; and if the alienee has actual visible possession of the land, such possession is suffi-.cient notice of the alienation, and the redemptors must pay or tender the required amount to such alienee.</p> <p>[Ed. Note. — For other cases, see Execution, Ceiit Dig. §§ 857-864.]</p> <p>2. Quieting Title <&wkey;35(3) — Removing Clouds — Right to Sue — Requisites.</p> <p>TO permit a cancellation of clo-uds upon title, the complainant’s bill must show that he is in possession.</p> <p>[Ed. Note. — For other eases, see Quieting Title, Cent» Dig. § 74.]</p> <p>3. Execution &wkey;>300 — Sales—Redemption.</p> <p>WherS the owner has attempted to redeem from the purchaser at execution sale, and the purchaser has alienated the land, the owner may waive the -effect of his redemption from the purchaser, as well as the alleged illegality of the execution sale, and seek redemption from the alienee.</p> <p><@^»For other cases see same topic and KEY-NUMBER in all KCey-Numbered Digests and Indexes</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 878-882.]</p> <p>4. Execution <&wkey;301 — Sales—Redemption-Bill — Requisites.</p> <p>A bill to redeem from the alienee of the purchaser at execution sale is defective, if it fails to allege that the amount tendered included all lawful charges of which the complainant had notice.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 883-889.]</p> <p>5. Execution <&wkey;295 — Sales—Redemptions— Tendees — Time .</p> <p>A delay in tendering the amount due to the alienee of the purchaser at execution sale is sufficiently accounted for by a showing that the complainant had attempted to redeem from the execution purchaser without notice of his prior alienation, and that such purchaser had accepted the tender.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 846-850.]</p> <p>6. Equity <&wkey;232 — Demurrer—Requisites.</p> <p>Where several demurrers were addressed to the bill as a whole, and not severally to such particular aspect as each was appropriate to, the demurrers were properly overruled, though the bill was defective in every aspect.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 50S.]. '</p> <p>7. Pleading &wkey;3S — Requisites—Sufficiency. . ,,</p> <p>,, Where the allegations of the bill upon which alternative prayers are based are not made disjunctively, an insufficiency in one set of allegations does not render the whole bill bad on that ground alone.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 89, 90.]</p> <p>¿SíspFor otter cases see same topic and KEY-NUMBER in all Key-Numbered ‘Digests and Indexes</p>

P. Almon, Judge. Volley Glover, alias, etc., was convicted of murder in the first degree, and appeals. The witness Roberts was permitted to testify: “I had a talk with Glover a short time before the killing, something like 10 minutes before, and he said the other fellow had a lemon squeezer, and it snapped, but that he had one that never did.

<p>1. Innkeepers <&wkey;ll(2) — Establishment oe Relation — Rights.</p> <p>When the relation of host and guest is established, the rights and duties of both parties are at once fixed by law, and remain fixed so long only as the relation continues, in the absence of a binding contract to effect different results.</p> <p>[Ed. Note. — For other cases, see Innkeepers, Cent. Dig. §§ S, 19, 20.]</p> <p>2. Innkeepers <&wkey;ll(l) — Establishment oe RelationsRights.</p> <p>The innkeeper is liable for the goods of his guest, lost in the inn, unless the loss was due to the act of God, to that of a public enemy, or to that of the owner.</p> <p>[Ed. Note. — For other cases, see Innkeepers, Cent. Dig. §§ 17, 18, 21, 23.]</p> <p>3. Innkeepers <&wkey;ll(6) — Establishment oe Relation — Rights.</p> <p>The liability of an innkeeper for loss to the goods of his guest is not confined to any particular kind of goods, But extends to money and all other classes of personal property brought by the guest to the inn for use by, or suitable to the use of, the guest.</p> <p>[Ed.' Note. — For other cases, see Innkeepers, Cent. Dig. §§ 3, 25-27.]</p> <p>4. Innkeepers <&wkey;ll(2) — Establishment oe Relation — Rights.</p> <p>The liability of an innkeeper for loss to the goods of his guest terminates when the relation of host and guest terminates, although the property remains in the inn thereafter, except that the strict liability may continue during a merely temporary absence of the guest from the inn.</p> <p>[Ed. Note. — For other eases, see Innkeepers. Cent. Dig. §§ 3, 19, 20.]</p> <p>5. Innkeepers <&wkey;ll (2) — Establishment oe Relation — Rights.</p> <p>To preserve the liability of an innkeeper for loss to the goods of bis guest during the temporary absence of the guest, there must be on the part of the guest .an animus revertendi, known to the innkeeper, and the intent must be to return within a reasonable time, and the liability to compensate the innkeeper on the part of the guest must continue during the absence.</p> <p>[Ed. Note. — For other eases, see Innkeepers, Cent. Dig. §§ 3, 19, 20.]</p> <p>6. Innkeepers &wkey;>ll(2) — Establishment oe Relation — Rights.</p> <p>When the guest pays bis bill and departs, the strict liability does not cease at once, but continues for a reasonable time within which to remove the baggage; and if the host undertakes to deliver the baggage to a common carrier thereof, the strict liability continues until the deliv-, ery is made.</p> <p>[Ed. Note. — For other eases, see Innkeepers, Cent. Dig. §§ 3, 19, 20.]</p> <p>7. Innkeepers <&wkey;ll(l) — Establishment oe Relation — Rights.</p> <p>If the host receive the goods of the guest, to keep after the relation has ceased, the former is not'liable therefor as á hotel or inn keeper, but only as an ordinary bailee for or without pay, as the ease may be, even though he agree to receive and forward the goods.</p> <p>[Ed. Note. — For other cases, see Innkeepers, Cent. Dig. §§ 17, 18, 21, 23.]</p> <p>8. Innkeepers <&wkey;ll(l) — Establishment oe Relation — Rights.</p> <p>Where the guest, intending to return, had paid his bill, left bis baggage in the check room, and deposited money with a person assuming to act as clerk of a hotel, the hotel was not strictly i liable as a host.</p> <p>[Ed. Note. — For other cases, see Innkeepers, Cent. Dig. §§ 17, 18, 21, 23.}</p> <p>9. Innkeepers <&wkey;ll(10) — Establishment oe Relation — Rights.</p> <p>If the guest’s goods are lost or injured on account of bis own wrong or negligence, the innkeeper is not liable therefor.</p> <p>[Ed. Note. — For other cases, see Innkeepers, Cent. Dig. §§ 31, 32.]</p> <p>10. Innkeepers <&wkey;ll(12) — Establishment oe Relation — Rights—Question eob Jury.</p> <p>Evidence held to present a question for the jury whether a guest, on leaving a hotel and depositing money with one assuming to act as clerk, was contributorily negligent, so as not to charge the hotel for loss of the money, when the person with whom it was left absconded.</p> <p>[Ed. Note. — For other cases, see Innkeepers, Cent. Dig. §§ 35-40.]</p> <p>11. Innkeepers <&wkey;ll(2) — Establishment oe Relation — Rights.</p> <p>The mere fact that the guest and the host contemplated renewing that relation within a few days, the guest having paid his bill and commenced a temporary absence from the hotel, and that the hotel keeper received the goods or money to keep until the relation .should be renewed, is insufficient to charge the host as an innkeeper, but be is only a gratuitous bailee.</p> <p>[Ed. Note. — For other cases, see Innkeepers, Cent. Dig. §§ 3, 19, 20.] •</p> <p><§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Fixtures <&wkey;27(l) — Houses.</p> <p>A one-room plank house, erected by a widow with her own moans on land of her deceased husband’s estate, with full understanding and agreement of the heirs that it should remain hers, to be disposed of as she saw fit, became a chattel, subject to be disposed of as such.</p> <p>[Ed. Note. — For other cases, see Fixtures, Cent. Dig. §§ 5, 54.]</p> <p>2. Frauds, Statute ob <&wkey;72(4) — Contracts</p> <p>Concerning Fixtures.</p> <p>The statute of frauds has no application to an agreement relative to a house erected under circumstances whereby it remains personalty.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 118.]</p> <p>3. Vendor and Purchaser <&wkey;228(l) — Innocent Purchaser — Fixtures.</p> <p>No right of innocent third person is involved, where one purchases land with knowledge that a house thereon is personalty, and not included in his purchase of the land, and with agreement to pay its owner therefor.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 495, 496.]</p> <p>iteoPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Payment &wkey;>44 — Application — Psesump - TION.</p> <p>Where one general account existed between debtors and creditors before execution of a mortgage by the debtors to the creditors, and such account continued after execution of the mortgage without any change in any manner, the mortgagees being under the impression that the mortgage secured the entire account, a payment made by the mortgagors extinguished the oldest debt, the one secured by the mortgage; the presumption of law that the credit was to be applied, most beneficially to the creditor, to the most precarious debt, having no application.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 17, 195-197.]</p> <p><@s»For other cases see same topic and KEY-NUMBER in aU Key-Numbered Digests and Indexes</p>

A. Pearce, Judge. Action by Fred Henderson & Walters against the Atlantic Coast Line Railway Company. Judgment for defendant, and plaintiff appeals. Plaintiff shipped separately a number of cars of beef cattle from Troy, Ala., and other nearby points, to their selling agent at New Orleans. The bills of lading stipulated for through transportation to New Orleans, but contained no specification as to the point or mode of delivery to the consignee after arrival at New Orleans.

<p>1. Venue <&wkey;5(4) — Fraudulent Conveyance-Setting Aside Statute.</p> <p>Under Code . 1907, § 3093, requiring bill in chancery to be filed in the county in which defendants reside, the chancery court of Cull-man county had jurisdiction to set aside a conveyance of land situated in Marshall county made by defendants, residents of Cullman, in fraud of creditors.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. § 8.]</p> <p>2. .Subrogation <j&wkey;14(3) — Payment of Mortgages — Grantee of Fraudulent Grantee — Cancellation of Original Conveyance.</p> <p>Whore a debtor fraudulently conveyed land, and his grantee conveyed to another on part consideration of the assumption and later payment of mortgages executed by the grantee, and thereafter the original conveyance by the debtor was canceled at suit of his creditor, the ultimate grantee, who had paid the mortgages,.was subrogated to the rights of the original mortgagees in the premises ag’ainst the creditor which had the conveyance set aside, and was entitled to be paid the amount paid the mortgagees.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. § 38.]</p> <p>^==?Por other cases see same topic and KEY-NUMEER in all Key-Numbered Digests and Indexes</p>

Appeal froni City Court of Birmingham; H. A. Sharpe, Judge. Action by S. S. I-Ieide against the Capital Securities Company. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449. Judgment for defendant, and plaintiff appeals. ' Appellant, plaintiff in the court below, brought this suit against the appellee to recover $500, which he had paid to the defendant by way of purchase of 5 shares of preferred stock of the par value of $100 in said company.

S. Lewis', Chancellor. Bill by the Moore-I-Iandley Hardware Company and others against W. T. Middlebrooks, the Dothan National Bank, and others. Demurrers of the Middlebrookses sustained, and those of the Banks overruled, and the Banks appeal.

<p>1. Appeal and Error <&wkey;621(l) — Delay in Filing Transcript.</p> <p>Where an appeal was taken January 17th, several days after the call of the division to which the county of trial belonged, the transcript was filed May 28th, and the appeal submitted the next day on the call of another division, no call of such other division intervening after the appeal was taken before submission was effected, the appeal will not he dismissed for delay in filing the transcript, the diligence contemplated in requiring the filing of transcripts is inceptive upon the taking of the appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2724-2727, 2729, 2731.]</p> <p>2. Exceptions, Bill of <&wkey;36(l) — Time of Signing.</p> <p>That a bill of exceptions was signed before the appeal was taken is immaterial.</p> <p>[Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. §§ 44-46, 48, 53, 56.]</p> <p>3. Master and Servant <&wkey;189(l) — Employers’ Liability Statute — Partner as “Superintendent.”</p> <p>A partner may be an employó of his firm so as to constitute him a “superintendent” within the employers’ liability statute, Code 1907, § 3910, though a superintendent must be a servant to answer the intent of the act.</p> <p>[Ed. Note.' — For other cases, see Master and Servant, Cent. Dig. §§ 427-430.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Superintendent.]</p> <p>4. Master and Servant <&wkey;>270(2) — Injuries to Servant — Evidence.</p> <p>j.n a servant’s action for personal injuries, it was competent for plaintiff to ask defendant firm’s superintendent, a partner in the firm, if he was short of hands at the time, the question calling for evidence ¡pertinent to the controverted ¡issue whether plaintiff was employed by defendant firm on the day before or on the day of his injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 914.]</p> <p>5. Master and Servant &wkey;>269 — Injuries to Servant — Evidence. ■</p> <p>The question, to the superintendent on cross-examination, whereby it was shown by Mm that part of the time a man would have to work at a place and then go over to another place and work in order to carry on defendant firm’s operations, was proper.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 912.]</p> <p>6. Master and Servant <&wkey;286(22) — Injuries to Servant — Safeguarding Saw — Question for Jury.</p> <p>Whether the saw, which injured plaintiff employe, where it revolved beneath the table was properly safeguarded against possible injury to one removing sawdust, and ignorant of the dangers in the premises, was a question for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1028.]</p> <p>7. Trial c&wkey;143 — Credibility of Testimony —Question for Jury.</p> <p>What credence should have been given the. testimony on either side of the controverted issues of fact was a question for the jury.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 342, 343.]</p> <p>¡Su^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

S. Williams, Judge. Bill by H. M. Kaiglor, as trustee in bankruptcy, against Mary Barrett and another. From a decree overruling demurrer to the bill, respondents appeal. The following are the grounds of demurrer insisted upon: (2) Failure to aver whether the creditors represented by the trustee are secured or unsecured creditors. (3) Failure to name the creditors represented by him, • and the amounts due each one, and whether they are secured or unsecured.

<p>1. Statutes <&wkey;255 — Construction—Date of Taking Effect.</p> <p>Statutes go into effect upon their approval by the executive unless otherwise provided in the act.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 336.]</p> <p>tfssjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>2. Statutes <&wkey;248 — Time of Taking Effect —Code Provision.</p> <p>The provision of the Code that no penal act shall go into effect until 30 days after the adjournment of the Legislature, is a mere legislative enactment, subject .to repeal, and not hindering the General Assembly from providing otherwise as to any new enactment.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 330.]</p> <p>3. District and Prosecuting Attorneys <&wkey; 2(1) — Appointment of Deputy Cirouit Solicitor — Statute—Constitutionality.</p> <p>General Solicitors’ Bill, Acts 1915, p. 817 et seq., authorizing appointment of a deputy circuit solicitor by the circuit solicitor, was not violative of Const. 1901, § 167, providing that the Legislature may provide by law for the appointment by the Governor or the eleetion_ by the qualified electors of a county of a solicitor for any county; the office of deputy circuit solicitor not being in legal effect a county solicitor-ship, though the incumbents of the offices are required to perform the same or like services and duties.</p> <p>[Ed. Note. — For other cases, see District and Prosecuting Attorneys, Cent. Dig. § 2.]</p> <p>4. Officers <&wkey;114^-“DEPOTY Officer.” _</p> <p>_ A “deputy officer” - does not act officially for himself, but acts for his principal, and, while, he may be personally liable, he is not officially so, unless by express law (citing Words and Phrases; Deputy).</p> <p>[Ed. Note. — For other cases, see Officers, Cent. Dig. §§ 187-192.]</p> <p>&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

C. Briekell, Judge. Bill by Ida T. Bushnell against Frank B. Gurley and others, to remove an estate from the probate to the chancery court, and. to-require the filing of an inventory, and, the execution of a bond, and to impress a trust upon real estate to secure the payment of a legacy left complainant. From a decree overruling demurrers to the bill, and remov- ‘ ing the estate, respondents appeal.

<p>Carriers <&wkey;320(21) — Injuries to Passengers — Negli&ence—Evidence.</p> <p>Evidence that an auto truck had broken down across the street car track, that a passenger saw it when a great distance away, that the motorman made no effort to slacken Ms speed, and that a collision occurred injuring plaintiff, is sufficient to make a jury question on the negligence of the carrier.</p> <p><&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>. [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. § 1323.]</p>

Action by Joseph Espalla, Jr., against the County of Mobile. , Judgment for defendant, and plaintiff appealed to- Court of Appeals, where judgment was reversed and remanded (73 South. 7611), anjl the County of Mobile petitions for certiorari.

Miller, Judge. Suit by the Yielding Bros. Department Store, Incorporated, against W. S. Brown Mercantile Company, Incorporated.

<p>Cebtiobaei <&wkey;68 — Scope op Remedy.</p> <p>A writ of certiorari to review a decision of the. Court of Appeals will be denied where only debatable question presented is one of fact.</p> <p>[Ed. Note. — For other cases, see Certiorari, Cent. Dig. §§ 180-182.]</p> <p><gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>I. Logs and Logging &wkey;>3(14)— Sale of Timber — Right to Remove — “Condition.”</p> <p>Where the conveyance of standing timber provided that the grantee should have and hold title thereto upon the “condition” and providing it was cut and removed from the land oh or before a certain date, the estate was subject to defeasance on failure to cut the timber on such date.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Condition.]</p> <p>2. Logs and Logging &wkey;>3(5) — Sales of Timber-Deficit in Amount — Relief.</p> <p>Where the seller of standing timber guaranteed that it would cut a certain number of feet, and provided that the purchaser could cut timber from.other land, should there be a deficit, but the purchaser did not actually cut all the merchantable standing timber, he was not entitled to rescind on the ground that there was a deficit, or that the seller misrepresented the amount of timber upon the land.</p> <p>3. Logs and Logging <&wkey;3(7) — Sales of Timber — Deficit in Amount — Relief.</p> <p>Since the owner of land, who sells a mineral and coal right with the right to cut timber necessary to the mine, retains the title to the timber until it is actually cut for mining purposes, another, who purchases the timber from the owner before it is cut for the mine, cannot rescind the contract upon the ground that the seller has no title.</p> <p>cgr^jFor other cases see same topic and KEi-NUMBEB in all Key-Numbered Digests and Indexes</p>

S. Lewis, Chancellor. « Will contest between Cora West and A. H. Arrington, executor, and others. Prom the decree of the chancery court confirming the validity of the will, contestant appeals.

<p>Appeal from Chancery Court, Sumter County; Thomas H. Smith, Chancellor.</p> <p>Suit by the National Stockyards National Bank against the Interstate Trust & Banking Company and another. From an adverse decree, defendants appeal.</p> <p>The Pinson & Geiger Land Corporation, Incorporated, located in Sumter county, in 1910, executed and delivered to the Interstate Trust & Banking Company a deed of trust to secure bonds in the principal sum of $100,000, proposed to be issued, conveying therein approximately 10,000 acres of land in Sumter county, Ala. The bonds were in part bought by the Mortgage Securities Company. In 1916 default having been made in the payment of these bonds, or some of them, as well as of interest coupons, the trustee, in accordance with and under the power conferred by the deed of trust, undertook to sell the property conveyed and advertised for sale. Before this date, hut long after the execution of the deed of-trust and the issuance of the bonds, the appellee became a judgment creditor of Pinson & Geiger Land Corporation in a large sum, and filed a certificate of its judgment in the probate office of Sumter county. Shortly before the advertised sale occurred, appellee filed its bill in the chancery court of Sumter county, seeking a cancellation of the said deed of trust and of the bonds thereby secured, upon the ground that the transactions evidenced by them occurred in Alabama, and that at the time of said transactions the appellants were foreign corporations not qualified under the statutes of Alabama to do business in this state; and secured a temporary injunction restraining the impending sale. The matter was submitted to the chancellor upon demurrers to the bill as the second time amended, and upon a motion to dissolve the injunction. The court overruled the demurrer to the bill as a whole, as well as to specified portions thereof, but granted the motion to dissolve the injunction, upon the ground that the proof showed the transactions to have occurred in the state of Louisiana. Ffom the decree overruling the demurrers, appellants present this appeal.</p>

<p>Appeal from City Court of Montgomery; Gaston Gunter, Judge.</p> <p>Suit by E. C. Ramage and others against Bernice E. Kerlin and others. From an adverse decree, defendants appeal.</p>

E, Blackwood, Chancellor. Bill by the Alabama Great Southern Railroad Company, an Alabama corporation, against Walter .Weaver, a resident of De Kalb county, Ala., to enjoin the prosecution by respondent of an action for damages agains£ complainant in the city court of Atlanta, Ga. From an order granting a temporary writ, respondent appeals.

Arthur Davis was convicted in the recorder’s court of a violation of the prohibition laws, and he appealed to the city court of Montgomery, which ordered his discharge, and from that judgment the city appealed to the Court of Appeals, where the cause was reversed and remanded (74 South. 730U, whereupon defendant petitioned for certiorari to review and revise the judgment of the Court of Appeals.

• Appeal from Circuit Court, Coffee County; A. B. Foster, Judge. Suit by the Elba Bank & Trust Company against the Mutual Dife Insurance Company, in which Eva C. Marsh was interpleaded. Defendant Marsh appealed from an order overruling her motion to set aside the judgment requiring her to interplead, and as an alternative asked for a writ of mandamus in case appeal did not lie.

<p>Petition, for mandamus on behalf of the City Bank & Trust Company against Circuit Judge Turner.</p>

<p>Appeal from Clay County Court; E. J. Garrison, Judge.</p> <p>Action by J. O. Street against W. S. Crab-tree. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts 1911.</p>

A. Sharpe, Judge. Action by the State of Alabama, on the relation of Victoria Dallas and others, against the Atlanta Mutual Insurance Company. From judgment for defendant, relators appeal.

Apxreal from Chancery Oourt, Morgan County; James E. Horton, Jr., Chancellor. Bill by E. A. Bloodworth, as executor of • the last will and testament of John P. Parsons, deceased, against Harry Reed and others, in which respondents Reed and Eppler filed cross-bills. The demurrers to the original bill were overruled, while the demurrers to the cross-bills were sustained, and respondents' Reed and Eppler appeal.

• Appeal from Circuit Court, Mobile County; Thomas H. Smith, Judge. Bill by D. H. Tolman against the Alabama, Tennessee & Northern Railway and others. From an order appointing a receiver, respondents appeal. Appellee, as a creditor, in behalf of himself and other creditors, filed his bill against the Alabama, Tennessee & Northern Railway, a domestic railroad corporation formed by a consolidation or merger of three other corporations.

Mandamus by the State, on the relation of Corinne A. Roberts, against the Board of Revenue and Road Commissioners of Mobile County. Judgment for relator, for peremptory writ, and respondents appeal.

nty; O. S. Lewis, Chancellor. Suit by Mrs. W. H. Yarbrough and. others against R. H. Walker and others. From an adverse decree, the named defendant appeals. The bill in this case was filed by the appellees against the appellant and other respondents.

<p>Appeal from Chancery Court, Jefferson County; A. H. Benners, Chancellor.</p> <p>Bill by W. H. Graves against the City of Birmingham and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Circuit Court, Elmore County; Gaston Gunter, Judge.</p> <p>Bill by T. L. Austin against L. C. Smith and others, as members of the Commissioners’ Court of Elmore County, to enjoin the-issuance of certain warrants. Decree for complainant, and respondents appeal.</p> <p>The purpose of the bill is to prevent the-commissioners’ court of Elmore county from proceeding to borrow $30,000 for the county; the allegation being that the assessed valuation of the property in the county is $5,917,-035, and that the existing county indebtedness prior to January 1, 1917, is in excess of $240,000, which is more than 3% per cent, of the total assessed value. On the theory that the actual value of the county’s property is shown to he $9,862,725, and that an additional indebtedness of $30,000 would not aggregate an amount in excess of 3% per cent, of the actual value of listed property, respondent .moves to dissolve the injunction for want of equity in the bill; and from a decree overruling this motion, respondents appeal.</p>

Will Killen was convicted of murder in the second degree, and appealed to the Court of Appeals, where the judgment was reversed, whereupon the State petitions for certiorari.

A. .Sharpe, Judge. iV(andamus by the State, on the relation of W. S. Welch, against M. V. Henry, Treasurer of Jefferson County, to compel the payment of warrant. From a decree granting the writ, the Treasurer appeals.

<p>Appeal from Circuit Court, Jefferson County; fí. A. Sharpe, Judge.</p> <p>Mandamus by the State, on the relation of Ben E. Ray, against M. Y. Henry. From judgment denying the writ, relator appeals.</p>

<p>Appeal from Circuit Court, Jefferson County ; H. A. Sharpe, Judge.</p> <p>Proceedings by the State, on the relation of Van Hayes, Jr., against F. E. Harrington. From the judgment rendered, Harrington appeals.</p>

<p>Appeal from Circuit Court, Elmore County; Leon McCord, Judge.</p> <p>Information by the State, on relation of L. C. Smith and others, against Dr. C. S. Justice. Judgment for respondent, and plaintiffs appeal.</p>

<p>Appeal from Chancery Court, Etowah County; W. W. Whiteside, Chancellor.</p> <p>Suit between W. P. Lay and others and Adolphe Hohenberg and others. Fróm the decree, W. P. La.y and others appeal.</p> <p>. This cause was submitted under new rule 46 (65 South, vii), and the opinion of the court was prepared and delivered by Mr. Chief Justice ANDERSON.</p> <p>The sole question for consideration upon this appeal involves the amount due the complainants from the proceeds of the sale of the property there involved and the relative value of the site a.t lock 15, as compared with the other property embraced in the sale as per the ■ agreement entered into between the parties, and which said agreement is made a part of the bill of complaint as Exhibit B. The complainants’ theory is that the relative value of their property, which will be designated as lock or site 15, is worth one-fourth of all that was sold, and that they are therefore entitled to one-fourth of the proceeds of the sale, and which seems to have been the views ■ entertained, by the chancery court in the rendition of the decree from which this appeal is prosecuted, and which we would not be inclined to disturb if the grant as to lock 12 is not taken into consideration, as the evidence convincingly shows that lock 15, exclusive of the grant as to lock 12, was worth approximately one-fourth of the combined value of locks 7,12,14, and 15. The respondents’ theory is that the grant at lock 12 was the most valuable part of the property sold, and that by virtue of the existence of same said lock 12 was worth many times more than all of the other sites combined. This contention would, no doubt, be sound if the existence of the grant be considered as an inseparable asset and for the purpose of enhancing ,the value of lock 12, and thereby diminishing the value of the other locks or sites upon a ratio or comparative value basis, but, owing to the facts and conditions connected -with the joint venture of the parties and the negotiations between them from the original acquirement of the sites until the final sale of same in 1912, we do not think that it was their intention that the grant as to lock 12 would so augment the value of same as to give it a superior value upon the relative value basis as to practically destroy the valué of the -other sites in case of a sale under a comparative value basis, and thus make them an insignificant part of the subject of the 1912 sale. While it is doubtful that the said sale could have been made without the grant, it is also doubtful if it could have been made had not site 15 been included. We therefore think that the grant should have been treated as a separate and distinct asset or property in the nature of a betterment or improvement, and that the value of same should be deducted from the purchase price before a division is made between the respective sites. Oapt. Lay testified that the estimated value of the grant was $100,000, and which estimated value does not seem to have been questioned, notwithstanding it may be regarded as a mere intangible asset, and which we do not consider an unreasonable valuation when compared with the price brought by the entire property, including said grant. It is true we have estimates as to the value of the respective sites which take little or no account of the grant as to lock 12, but we are bound to know that the said grant was a valuable factor and formed a conspicuous part in the sale, and 'while it should not be used to enhance the value of lock 12 so as to reduce the value of the other sites to insignificant proportions, as estimated by some of respondents’ witnesses, it should be considered as forming a part of the consideration of the sale, and its value should be deducted before the Wetumpka stockholders are to participate in the distribution of the proceeds. We therefore find that the value of the grant was $100,000, and which should be deducted from the purchase price under the sale of 1912. With the grant eliminated, we think that the Wetumpka interest, that is, site 15, is fairly worth approximately one-fourth 'of all the sites, and so find. The fact that the owners agreed to take a certain amount óf stock on a previous occasion in a company which did not materialize is no test that it is not worth the proportionate value placed upon same. From aught that appears, the other sites were not to consume all of the other stock of the proposed corporation, and they, too, may have been considered at a lower estimate than the price realized for same under the sale of 1912. We direct that one-fourth of the value of the grant, that is, $25,000, be turned over by the receiver to the' respondent owners, as per their respective interest in lock 12, less their portion of the cost, and that the rest of the money, bonds, and stock as held by the receiver, being one-Tourth of the total consideration of the sale, less the $25,000, being a fourth of the value of the grant, to the owners of the Wetumpka Company, consisting of the complainants and the respondent Lay, in proportion to their respective ownership of same, less their part of the cost.</p> <p>We do not think that these complainants were under any contractual obligations, express or implied, to pay the cross-complainant G. I-I.'Schuler any commissions or expenses, and hold that the cross-bill was properly dismissed by the chancery court.</p> <p>The cost will be equally divided between the complainants and respondents, meaning the cost of the chancery court and this court, one-half to be taxed against the respondents, and one-half against the complainants.</p> <p>The decree of the chancery court as corrected is affirmed.</p> <p>Corrected and affirmed.</p> <p>MAYFIELD, SOMERVILLE, and THOMAS, ¡IJ., concur.</p>

<p>Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.</p> <p>Action -by Clara C. Hobbs against the Meridian Life Insurance Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, p. 450, Acts 19,11.</p> <p>Plea 2 sets up the policy and alleges the payment of the first four annual premiums, and that by the terms of the policy it is provided that, after the payment of annual premiums for three or four years, the insured may have extended insurance, or paid-up insurance, or a loan, or a cash payment upon the surrender of the policy, as set forth in the table of options contained in the policy. The option set forth is extended insurance for 4 years and 206 days, or to paid-up insurance of $157, or to- a loan of $78, or to a cash payment of $78, upon surrender of the policy. It is alleged that the insured exercised his right under the table of options, and procured a loan from said company on said policy for the full loan value thereof, to wit, $78, which loan was evidenced by the loan agreement, which is attached to the plea; said agreement being executed by the insured and the beneficiary in the policy, plaintiff in this case. The plea then sets up the failure to pay the fifth premium, and the lapsing of the policy because thereof, and that, by reason of having borrowed the full value of-the policy, insured was not entitled to any extended insurance because of his failure to pay the fifth annual premium. Then follows the nonforfeiture provision set out in the opinion, but it alleges that there was an unpaid note as evidenced by the loan agreement as heretofore set out. The plea also sets up the fact that the sixth annual premium was not paid. Amended pleas A and B sufficiently appear from the opinion.</p>

• Oscar Morrissette was convicted of an assault with intent to murder, and appealed to the Court of Appeals, where the judgment was affirmed (75 South. 177), whereupon he brings petition for certiorari.

<p>Appeal from Circuit Court, Cherokee County; W. W. Whiteside, Judge.</p> <p>Action by Nettie Wright against A. E. Wright, Jr. Prom decree for complainant, defendant appeals.</p>

A. Pearce, Judge. Action by the ■ Dothan Grocery Company against H. L. Wolford & Son, defendants, and Whatley Bros. & Chambliss, garnishees. From a judgment discharging the garnishees, plaintiff appeals. Transferred from Oourt of Appeals under section 6, Acts 1911, p. 450.

W. Pearson, Judge. Bill by II. S. & J. L. Holloway against the Tallassee Oil & Fertilizer Company and others. From a decree overruling motion to dissolve a temporary injunction, respondents appeal. This bill was filed by the appellees, H. S. and' J. L. Holloway, against the appellants, the Tallassee Oil & Fertilizer Company and , F. L. Owen and T. W. Brunson, president and secretary of said company. Complainants set up in the bill that they, under the firm name of II.

<p>1. Corporations &wkey;>666 — Actions against Foreign Corporations — Venue—Statute.</p> <p>Code 1907, § 6112, in so far as it provides that actions cannot be brought against a foreign corporation in a county or counties in which the corporation is doing business, is violative of Const. 1901, § 232, fixing the venue-of actions brought in Alabama against foreign corporations, and so void.</p> <p>2. Constitutional Law >&wkey;48 — Validity oe Statutes.</p> <p>A court should never declare a statute to be in conflict with the Constitution unless convinced beyond a reasonable doubt that there is such conflict.</p> <p>3. Constitutional Law &wkey;3l8 — Readoption oe Constitutional Provision — Eeeect.</p> <p>Where a constitutional provision had boon repeatedly construed by the Supreme Court when readopted in a later Constitution, it was readopted with the previous judicial construction, and the Supreme Court is bound thereby.</p> <p>4. Constitutional Law <&wkey;36 — Legislative Powers.</p> <p>The Legislature may provide statutes to give force, effect, and application to the provisions of the Constitution, but" it cannot bend or alter provisions that are self-executing.</p> <p>Sayre, J., dissenting!</p> <p><&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

M. R. Jordan sued the People’s Savings Bank of Tallassee arid its successor, the bank of Tallassee, to recover on a noté, and for breach of contract to insure. Judgment for plaintiff, and defendants appeal.

A. Steele, Judge. Certiorari hy the State, on the relation of T. B. Wagnon, against the Town of Altoona and others. From judgment denying relator relief, relator appeals.

<p>1. Embezzlement <s»14L-Bt “Agent” — Indictment — Sueeicienot on Demurrer.</p> <p>Under Code 1907, § 6828, with reference to embezzlement by an “officer, agent or clerk,” the word “agent” is used in its popular sense, and the use of the word “servant” in the alternative with agent rendered the whole count bad on demurrer.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, First and Second Series, Agent.]</p> <p>2. Criminal Law c&wkey;i032(5) — Indictment>Absence oe Demurrer — Extent oe Review.</p> <p>As one of the alternatives was good under the statute, the indictment was not void, and was sufficient to support a judgment of conviction, and the defect did not warrant an arrest of judgment or the reversal of the case by the appellate court in the absence of the point being appropriately raised in the trial court.</p> <p>(S^Kor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Law, and Equity Court, Mobile County; Saffold Berney, Judge.</p> <p>Action by Eugenia Harrison, as administratrix, against the Munson Steamship Line, for daipages' for the death of her intestate while in the employment of defendant.</p> <p>The cause was submitted on motion to strike the bill of exceptions, and the following is the agreed statement of facts:</p> <p>It is hereby agreed between the respective attorneys of record for the parties in the matter of the motion by appellant to establish h. bill of exceptions in said cause -before 1-Ion. William H. Thomas, associate justice of the Supremo Court of Alabama, that the following facts are true: That said cause was tried in the law and equity court of Mobile on June 23, 1916, and judgment therein rendered on said date; that Hon. Saffold Berney, judge of the law" and equity court of Mobile, was the judge before and by whom the said cause was tried, and that said judge after the trial of said cause remained in the city of Mobile continuously from and after the date of the trial of said cause until some time in the early part of Septembei’, 1916; that during the month of .September, 1916, said judge left the city of Mobile upon a trip to Nashville, Tenn., and remained away from the county of Mobile and state of Alabama for the period of about ten days; that early in the morning of September 21, 1916, said judge re* turned to the city of Mobile, and that on said day lie was not in any way incapacitated from performing tho duties of his office; that since said 21st day of September Judge Berney has. remained continuously in the city of Mobile, and lias not been in any way incapacitated to transact the duties of his office; that on the 20th day of September, 1916, counsel for appellant filed with Sextus H. Smith, clerk of said trial- court, the bill of exceptions now - sought to be established in the above-entitled cause; that upon the said day when said bill of exceptions was so presented to the clerk the judge of said court was absent from the city and county of Mobile; that, when the said bill was so presented to said clerk, counsel for appellant liad no notice or knowledge as to when said judge would return to Mobile; that the official court reporter who took down the testimony in said cause was William J. Goodman; and that said Goodman prepared the transcript now offered in evidence before Judge Thomas_ of the ■Supreme Court of Alabama, and that said transcript is a true record of the proceedings and evidence in said cause, but that the counsel executing this agreement reserve the right to cure and correct any clerical misprisions which may develop in connection with the motion to establish such bill of exceptions.</p> <p>In witness whereof we have hereunto set our hands this 2d day of January, 1917, and that the bill of exceptions in this cause was presented to Judge Thomas December 14, 1916.</p>

W. Haralson, Judge. • Statutory ejectment by J. W. Livingston against Sam Nelson. Judgment for defendant, and plaintiff appeals. The parties are adjoining landowners, and the strip of land in the suit is about one rod in width on the north side of the government 40, just south of the 40 owned by defendant. As to this strip defendant pleaded not guilty, and by amendment made suggestion of a disputed boundary line, on which an issue was made up and tried under § 3843,.

<p>Appeal from Law and Equity Court, Morgan County; Thomas W. Wert, Judge.</p> <p>Action by Rutby Lile against the National Order of Mosaic Templars of America. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, p. 450, Acts 1911.</p>

<p>Appeal from Circuit Court, Autauga County; Leon McCord, Judge.</p> <p>Suit by William Lewis, who 'died during suit, the cause being revived in the name of his next of kin and heirs at law, against T. H. Heath and Maggie Nell Myrick. From a judgment for plaintiffs, defendants appeal. On motion to strike bill of exceptions, and on the merits.</p>

<p>Appeal from Law and Equity Court, Mobile County; Saffold Bernéy, Judge.</p> <p>Bill by Anna S. More and another against Harry Gill to set aside, cancel, and annul the decree in the case of Harry Gill v. Abraham G. More et al. in so far as said decree refers to or in any manner affects or relates to and clouds orator’s, title to certain lands described. From a decree for complainants, respondent appeals.</p>

Smith, Chancellor. Bill by Crosha Blue against Eddie Lord, to redeem certain land. Decree for complainant, and respondent appeals.

<p>Appeal from Circuit Court,. .Montgomery County; W. W. Pearson, Judge.</p> <p>Action by Willie B. Shepard against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appealed.</p>

<p>Appeal from Circuit Court, Mobile County; Thomas H. Smith, Judge.</p> <p>Bill by Marshall T. Russell against C. W. Bohlin. Decree for defendant, and plaintiff appeals.</p>

<p>Appeal and Ebbob <&wkey;724(l) — Assignments of Ebbob — Requisites. ■</p> <p>No question is presented for review on appeal from a decree in equity where the appellant fails to state concisely in writing of what the error complained of consists, as required by rule 1 (Code 1907, p. 1506), or to write the assignment upon the transcript or to identify the error, unless the error goes to the whole decree.</p> <p><®=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

A. Pearce, Judge. Action by the Newton Grocery Company against C. R. Robinson. Judgment for plaintiff by default, and the defendant moved to set aside the default. From the order declining to set aside the default, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

S. Lewis, Chancellor. Bill by Mary S. Clements and others against Mrs. Nettie Clements and others. From a decree sustaining á demurrer to the bill, complainants appeal.

G. McCorvey, Judge. Bill by S-. B. Sharpe against the Gulf, Florida & Alabama Railway Company, to enforce a lien for work and labor. Decree for complainant and respondent appeals.

<p>Appeal from Chancery Court, Pike County; O. S. Lewis, Chancellor.</p> <p>Suit by W. A. Copeland against W. E. Fleming. From a judgment for plaintiff, defendant appeals, and plaintiff moves to dismiss.</p>

Application by the Southern Bell Telephone & Telegraph Company for mandamus to the board of revenue of Montgomery county,- to compel said board to draw its warrant on the county treasurer in a certain sum upon the certificate of the judge of probate, reciting that the appellee had made erroneous payments of franchise taxes for certain tax years named 'therein. From a decree granting the writ, respondent appeals.

<p>1. Statutes <&wkey;93(3) — “Special Law.”</p> <p>An act singling out and withdrawing from' the influence of a general law a certain class of counties by a distinction applicable at present only to one county, though in theory a general law, is in fact a “special law.”</p> <p>[Ed. Note. — For. other definitions, see Words and Phrases, First and Second Series, Special Law.]</p> <p>2. Statutes <&wkey;162 — Repeal op Local by General Act.</p> <p>A later general act does not repeal a former local act relating to the same subject-matter unless repeal is necessary to give the words of the general act any meaning at all.</p> <p>3. Statutes <&wkey;159 — Implied Repeal.</p> <p>A general law cannot be held to be repealed by a later one if it be possible to reconcile the two statutes so as to permit both to stand without violating sound principles of construction.</p> <p>4. Statutes <&wkey;51 — .Construction — Reenactment.</p> <p>When existing statutes are re-enacted, the effect is merely to continue them in force in their original sense.</p> <p>5. Highways <&wkey;122 — Liability to Work on Public Roads — Statutes.</p> <p>Senate Bill 744, approved September 16, 1915 (Laws 1915, p. 589), providing that in all counties whose aggregate tax values amount to $100,000,000, all persons shall be relieved of legal obligation to work on the public roads, etc., was not repealed by the re-enactment- of Code 1907, §§ 5777, 5778, as House Bill 1449, §§ 5%,</p> <p>6. approved September 22, 1915 (Laws 1915, p. 573), providing that all persons are liable to work on the public roads, except all women, all men under 18, etc.</p> <p>©ssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Browne, Judge. Suit between S. Saibara and the Yokohama Nursery Company. .From a judgment in part for plaintiff failing to give defendant judgment over on plea of recoupment or set-off, defendant appeals.

Injunction by the Alabama Central Railroad Company against the Alabama Public Servicq Commission and others. Appellant is a common carrier by rail. It owns and operates a railroad from Jasper, Ala., to Manchester, Ala., a distance of six miles.

M. Miller, Judge. Bill by H. C. Ogletree, for himself and as next friend of William T. Ogletree and others, against Pat Shannon, for the sale of land for division. From a decree overruling demurrers to ¿the bill, respondent appeals. The original bill was filed by H. C. Ogle-tree, for himself and also as next friend for four minor children of himself and deceased wife.

<p>1. Appeal and Error &wkey;>101 (2) — Orders Appealable — Refusal to Vacate Receivership.</p> <p>Ip a suit to enjoin the foreclosure of mortgages- and for redemption, in which respondent filed a cross-bill on which a receiver was appointed, an order refusing to vacate the ap‘pointment of the receiver is not reviewable.</p> <p>2. Appeal and Error &wkey;>736 — Assignments op Error Bad in Part.</p> <p>Though an order appointing a receiver of mortgaged land and the rents thereof was improper, assignments of error impeaching the order in whole, and not in part, could not be sustained.</p> <p><§=mITor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

S. Lewis, Chancellor. Suit by George Stuart, trustee, against J. M. Strickland and another. Defendants’ application for a rehearing was denied, and they appeal.

<p>Appeal from Circuit Court, Mobile County; Thomas H. Smith, Judge.</p> <p>Suit in equity by E. M. Waters against Ella Waters. From a decree in favor of defendant, plaintiff appeals.</p>

<p>Certiorari to Court of Appeals.</p> <p>Action by R. L. Hood against John Jenkins. Judgment for defendant, and plaintiff petitions for certiorari.</p>

<p>Appeal from Law and Equity Court, Mobile County; Saffold Berney, Judge.</p> <p>Suit by the People’s Bank against J. M. Dees. Erom a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450, § 6.</p>

<p>1. Master and Servant &wkey;>258 (15) — Action —Complaint—Duty of Defendant.</p> <p>The complaint, in a servant’s action for injury in a coal mine from the falling of the roof, by the averment that defendant negligently allowed it to be and remain in a dangerous condition, sufficiently states its duty to maintain it in a reasonably safe condition.</p> <p><S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>2. Witnesses <&wkey;275(2) — Cross-Examination of Party.</p> <p>Defendant in a personal- injury action may test the evidence given by plaintiff as to his diminished earning capacity, by cross-examination as to his earnings after the injury.</p> <p>3. Appeal and Error <&wkey;1048(6) — Harmless Error-Refusal of Cross-Examination.</p> <p>The error in denying right to cross-examine plaintiff in a personal injury case, who has testified to diminished earning capacity, as to his subsequent earnings, is not cured by the fact that it could have made the pay roll evidence.</p> <p>4. Master and Servant &wkey;>103(l) — Safe Place to Work — Master’s Duty — Delegation.</p> <p>While the master’s duty as to furnishing a safe place to work cannot be delegated, its duty as to maintaining it may be delegated.</p> <p>®=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Horton, Jr., Judge. Suit in equity by G. B. King against P. M. Allison and others. From an adverse decree, the named defendant appeals.

<p>1. Criminal Law <&wkey;>1035(6) — Appeal—Matters Reviewable — Saving Objections.</p> <p>Objection to the impaneling of the jury must be taken in the court below, and exception reserved, in order that the matter may be reviewable on appeal.</p> <p>2. Criminal Law &wkey;>1144(10) — Appeal — Presumptions.</p> <p>Unless the record shows to the contrary, the appellate court will presume that the jury heard all the evidence in the case; it being the duty of the court to see to it that the. jury hears all the evidence.</p> <p>3. Criminal Law <&wkey;3G3 — Evidence — Res Gestas.</p> <p>In a murder case acts of the participants on a day previous to the day of the murder are not admissible £\s a part of the res gesta;.</p> <p>4. Homicide <&wkey;189 — Evidence—Prior Difficulties— Self-Defense.</p> <p>In a murder ease, where the issue was self-defense, defendants might show that they had a prior difficulty with the deceased, but not the details thereof, to elucidate the reasonable appearance of conditions at the time of the homicide.</p> <p><§^>For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>5. Criminal Law &wkey;>448(7) — Evidence — Self-Defense — Admissibility.</p> <p>In a homicide case, where self-defense was an issue, evidence tending to show that a knife found on deceased had not been recently opened was admissible.</p> <p>6. Criminal Law <&wkey;383 — Evidence—Self-Defense.</p> <p>In'a homicide case, where self-defense was an issue, the court did not err in refusing to allow a witness to testify that she “expected trouble.”</p> <p>7. Criminal Law <&wkey;361(4) — Confessions— Statements of Third Parties — Admissibility.</p> <p>During a quasi confession, what a third party says is admissible if necessary for the pm-pose of connecting and rendering intelligible defendant’s statement, and also if the statement involves such an accusation against one of several defendants as to call for a denial from the other defendants.</p> <p>S. Criminal Law <&wkey;1169(2) — Appeal—Ad- ’ mission of Evidence — Prejudice.</p> <p>Where one witness testified as to statements of a third person during a quasi confession by one of several present defendants, without objection, or motion to require it to be limited to the defendant making the confession, _ there was no prejudice in overruling an objection to the same testimony by another witness.</p> <p>9. Criminal Law <§=^361(1) — Evidence — Materiality.</p> <p>Where witness in murder case testified that he met defendants, and one of them said that deceased was below the old house with his head in the ditch, there was no error in overruling an objection as to whether the witness asked about the deceased; it being competent to’illustrate the other testimony, though made by only one defendant, and not being-denied by the others.</p> <p>10. Criminal Law <&wkey;351(3) — Evidence — Plight.</p> <p>It was proper to refuse to allow defendants to show that they made no attempt to evade arrest where the state introduced no proof tending to show flight.</p> <p>11. Homicide <&wkey;297 — Instructions—Justification.</p> <p>In homicide case requested charges to acquit if defendants were “justified” or “justifiable” were properly refused, where the constituent elements of the justification under the law were not given in such Charges.</p> <p><Sx^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Mobile County; Thomas H. Smith, Judge.</p> <p>In Equity. Bill. by Clarence B. Ferdon against J. V. Robinson and wife. From a decree denying defendant husband’s right to a homestead exemption, he appeals.</p>

Disque, Judge. Action by William P. Lee against the Alabama City, Gadsden & Attalla Railway Company for damages for injuries in a collision. From a judgment for plaintiff, defendant appeals. Plaintiff was injured by 'a collision with one of defendant’s cars while passing obliquely across defendant’s street car track which formed part of the surface of a public street in the city of Gadsden. The case went to the jury on the fourth and fifth counts only.

C. B. Gwin, Judge. v Action for damages for assault and battery by John Collins against the Woodward Iron Company. Judgment for plaintiff, and defendant appealed. Transferred from the Court of Appeals under Acts 1911, p. 449, § G. The complaint alleges that J. C. Duffle, who was defendant’s roadmaster in Jefferson county, and while acting within the line and scope of his employment as said roadmaster, committed an assault and battery wrongfully upon plaintiff.

In the matter of the petition of E. J. Cox for a writ of certiorari to reverse a judgment of the Court of Appeals (76 South. 409) in an action by E. J. Cox and others /igainst the De Bardeleben Coal Company ánd others.

<p>Appeal from Circuit Court, Macon County ; S. L. Brewer, Judge'..</p> <p>- Action by Iola Brown against William Brown. From an order granting plaintiff a new trial, defendant appeals.</p>

B. Snith, Judge. Action by Iola Maxey and R. W. Walker, as administrators of the estate of Stephen Maxey, deceased, against the Woodward Iron Company. Judgment for plaintiffs, and defendant appeals. While the complaint was in nine counts, it is only necessary in this case' to refer to the fourth and sixth counts. Both of these counts allege that plaintiff’s intestate was in the service or employment of the defendant corporation as a miner in its ore mines.

Assumpsit by E. M. Cowling against O D. Rutherford. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450. . The action was upon the common counts. The defense was payment and the general issue. The proof showed for plaintiff an agreement for the use of a right of way over plaintiff’s land, at the sum of $75 for the first year and $60 for the succeeding year.

<p>Corporations <&wkey;642 (3) — Foreign Corporations — Collection oe Debts — Notes — “Transacting Business.”</p> <p>Settlement of account and balance between foreign corporation and debtor, who gave notes for the balance due, was a mere collection of debt, and not a transaction of such corporation within the state, so that it could recover on the notes, though it had not complied with Const. 1901, § 232, and Code 1907, § 3642, stating requirements of foreign corporation before being allowed to do business within the state.</p> <p>©soFor other oases see same topic and KEY-NUMUER in all Key-Numbered Digests and Indexes</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Transacting Business.]</p>

<p>1. Carriers <&wkey;298(l) — Injuries to Passengers — Sudden Movement oe Car.</p> <p>It is culpable negligence for a motorman in charge of a car on a steep up grade either to release the brake or to apply power to the motor, while a passenger is alighting.</p> <p>2. Carriers <&wkey;318(10) — Injuries to Passengers — Alighting erom Moving Oar.</p> <p>Evidence held insufficient to show that, as alleged by plaintiff, the ear from which she was alighting jerked and moved suddenly.</p> <p>3. Appeal and Error <&wkey;1082(3) — Harmless Error — Withdrawal oe Issue.</p> <p>In passenger’s action for injuries, under allegations that while she was alighting the street car moved suddenly, where the jury found that the car did not move while plaintiff was alighting, withdrawal of the question of wanton injury, if error, was harmless.</p> <p>4. Evidence &wkey;>514 (3) — Opinion Evidence— Competency oe Witness.</p> <p>A merchant tailor without experience in operation of cars was properly denied the opportunity to state whether, if a car on a steep up g;rade should start backwards, it would cause a violent movement of the car to apply the brake or the power.</p> <p>5. Carriers &wkey;>317(3) — Injuries to Passengers — Evidence—Admissibility.</p> <p>In action by a passenger for injuries, under allegation that while she was alighting the car suddenly started, the motorman in charge of the car could state whether he loosened the brakes, or did anything to cause the car to start forward.</p> <p>6. Witnesses <&wkey;240(2) — Leading Question —Discretion. (</p> <p>The only objection to a question put to a witness being that it was leading, its admission was discretionary with the trial judge.</p> <p>7. Carriers <&wkey;3l7(7) — Injuries to Passengers — Evidence—Admissibility.</p> <p>In passenger’s action for injuries, under allegation that while she was alighting the car suddenly moved backwards, in the absence of evidence that the brake was released, evidence that if the brake were released at all the car would move was inadmissible.</p> <p>©^nEo? other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Tallapoosa County; W. W. Whiteside, Judge.</p> <p>Proceeding between Gillie D. Ashurstl as administratrix, etc., and the Union Bank & Trust Company,'as administrator, etc. From an order refusing to set aside a prior order revoking letters of administration granted to Ashurst and appointing the Trust Company as her successor, Ashurst appeals.</p>

<p>Appeal from Circuit Court, Jefferson County ; C. B. Smith, Judge.'</p> <p>Action by L. E. Hunt against tbe Birmingham Railway, Light & Power Company for personal injuries while a passenger.</p> <p>The complaint alleges that defendant was engaged on, to wit, December 8, 1915, in tbe operation of a street ear line as a common carrier of passengers in, about, and upon the streets of the city of Birmingham, and to Bessemer, Ala., and that at or near one of its stations on said car line, to wit, a regular station for the letting on and taking off of passengers, plaintiff was thrown violently to the ground and injured as set out. Plaintiff avers that his said injuries and damages were proximately caused by' reason of tbe negligence of defendant in and about the transportation of plaintiff as a passenger as aforesaid. Plaintiff amended his complaint hy alleging that he was a passenger of defendant at the time and place of and at which he received the injuries therein set out.</p> <p>Plea 4 is as follows:</p> <p>The defendant says that plaintiff himself was guilty of negligence, which proximately contributed to his alleged injuries, in this: After the conductor in charge of said car had signaled the same to be started, as was. known to plaintiff, or could have been known to a reasonably prudent person situated as plaintiff had been situated, plaintiff negligently attempted to disembark from said car without waiting for same to be stopped to enable him to disembark, and received his alleged injuries while so attempting to disembark.</p> <p>In cross-examination of plaintiff, defendant attempted to show that certain interrogatories were propounded to plaintiff, and that plaintiff made certain answers thereto, and offered to ask certain questions concerning his answers to the interrogatories; hut the court declined to permit him to do so, stating at the same time that he would permit the introduction of the interrogatories and answers. Plaintiff was asked:</p> <p>Did you suffer any physical pain at the time from that injury, or as a result of that injury, or not?</p> <p>Appellant objected to the question, which was overruled.</p> <p>The court gave for plaintiff the following written charge:</p> <p>I charge you that, if you are reasonably satisfied from the evidence that plaintiff was injured in the manner and form alleged in the complaint, as a proximate consequence of defendant’s negli-, gence, then the burden of proof is placed upon defendant to prove its plea of contributory negligence to your reasonable satisfaction, and a failure to do so would authorize you to find a verdict in favor of plaintiff in this case.</p>

<p>1. Carriers <&wkey;287(l) — Passengers—Negligence.</p> <p>Where the crowded condition of a passageway adjacent to tracks at a station, and the platform, could have been seen a considerable distance, and a passenger, pushed forward by a crowd, was struck by the approaching train, the fact that the engineer, in approaching the station, propelled his train at a rate of speed of from 15 to 20 miles per hour, will support a finding for negligence.</p> <p>2. Carriers &wkey;287(l) — Passengers—Negligence.</p> <p>Where an engineer, proceeding1 through a populous city and approaching a populous station, kept no lookout to see whether passengers might be crowded 'so near the tracks as to be injured, negligence may be inferred from his failure, regardless of statute or ordinance.</p> <p>3. Carriers <&wkey;327 — Passengers—Trespassers.</p> <p>While one at a railroad station, waiting to take passage on a train, who voluntarily gets on the track or dangerously near thereto, without 'stopping, looking, or listening, is not only guilty of negligence, but may become a trespasser, a passenger, though she left the waiting room at the station and took her position on a passageway adjacent to the tracks, is not guilty of negligence, where she was pushed by the crowd into a position of danger.</p> <p>tS^jKor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>4. Carriers <&wkey;320(2) — Passengers — Jury Question.</p> <p>Whether plaintiff, who was struck by an approaching train on which she expected to take passage, was a passenger at the time of the accident, or whether she had forfeited her rights by taking position of danger, held for the jury.</p> <p>5. Carriers <&wkey;2S7(l) — Passenger — Negligence.</p> <p>Whore it did not appear that a depot and passageway was ordinarily insufficient, or that railroad company had reasonable grounds for anticipating that there would be an extraordinary rush and collision between the passengers, whereby one in the front would be shoved or pushed on the track in front of an approaching train, the fact that a passenger was pushed into such a position of danger, and injured, does not establish negligence on the part of the com-X>any ip, failing to take precautions against crowding.</p> <p>6. Carriers <&wkey;321(4) — Passengers—Actions —Instructions.</p> <p>Where plaintiff, injured when struck by a train on which she expected to take passage, asserted that, though she was pushed into a position of danger by the crowding of passengers, her injury resulted from the negligent operation of the train, a requested charge that, if plaintiff was struck as the sole and proximate result of being forced too close to the track by the misconduct of another ijassenger, verdict should be for defendant, was improperly refused; it not appearing that the railroad company was negligent in failing to take precautions with respect to crowding.</p> <p>7. Carriers i&wkey;347(3) — Passengers — Jury Question.</p> <p>Whether plaintiff, struck by an approaching train on which she expected to take passage, was guilty of negligence in going upon or in dangerous proximity to the tracks, held for the jury.</p> <p>8. Evidence <&wkey;194 — Exhibits — Propriety.</p> <p>In a personal injury action, where the fact of injury was .uncontroverted, admission in evidence of clothes worn by plaintiff at the time of the accident was improper, tending to arouse the. prejudice of the jurors.</p> <p>9. Carriers &wkey;>317(l) — Passengers—Evidence.</p> <p>In an action by one injured at a station by an approaching train on which she intended to take passage, testimony that the witness saw blood on the tracks early the next morning after the accident was admissible, in the absence of evidence showing changed conditions, to show the exact point where .the collision occurred, and how far the passenger was carried after being struck.</p> <p>ig^oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Usury &wkey;>95 — -Forbearance of Money — Effect — “Borrower”—“Loan.”</p> <p>Under Code 1907, § 4623, providing that contracts for payment of interest on loan or forbearance of goods or money at higher rate than 8 per cent, are usurious, and cannot be enforced except as to the principal, and that the borrower shall never be required to pay more than the-principal, the word “borrower” includes one having tiie use of money by the forbearance of his creditor, and money remaining in a debtor’s hands by agreement is a “loan.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Borrower; First and Second Series, Loan.]</p> <p>2. Usury <&wkey;6 — Forbearance of Money — Effect.</p> <p>Such statute is remedial, and not penal, and must be liberally construed.</p> <p>3. Usury &wkey;>95 — Forbearance of Money-Effect — “Borrower.”</p> <p>The word “borrower” in such statute is used in its broadest sense, and applies to any person who secures the use of money in any way upon an agreed consideration exceeding 8 per cent, of the principal.</p> <p>4. Appear and Error <&wkey;847(l) — Scope of Review — Record.</p> <p>The court on appeal from a decree in chancery is bound by a recital in the decree as to the issues below, and must treat other issues not specified in the decree as waived.</p> <p><®=>Fo.- other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Jefferson County; O. B. Smith, Judge.</p> <p>Action by George Parker against tbe SlossSheffield Steel & Iron Company for damages for personal injury. From judgment for defendant, plaintiff appeals.</p> <p>Tlie' complaint as submitted to the jury was in two counts. Both counts charge, and the evidence shows, that plaintiff was a state convict, arid was working in defendant’s mine under a contract between defendant and the state, and while so working was injured by a rock falling from the roof of the mine. Count 2 charges that said mine was, under said contract, in charge of defendant’s engineer, whose duty it was to direct the operation of the mine, and to, use reasonable care to so direct it as to render reasonably safe the place wherein plaintiff was being worked, and that said éngineer negligently omitted to do so, and thereby caused plaintiff’s injury. Count 4 charges that the defendants had a servant, known as the fire boss, whose duty it was to inspect and mark with chalk rooms or places as dangerous within or near to which the plaintiff and other convicts might be caused to work, and that his negligent failure to do so, or to so mark the place where plaintiff was injured, proximately caused his injury. The written contract between state and defendant contains the following pertinent provisions in substance: (1) That the state should have entire charge and control of the convicts; (2) the convicts were to he worked under mine foremen or pit bosses to be selected, controlled, and paid by the state; (3) the mines were to he worked according to the plans and specifications of defendant’s mining engineer, and under and subject to his direction and supervision, who shall have the power and authority to direct the dimensions and locations of all entries, narrow workrooms, pillars, or supports, and all dead work to he done therein, and. all other matters of every character pertaining to the development of said mine, and to their conservation and well-being; and (4) the mine foreman and pit bosses were to see that said mines were worked by said convicts according to the plans and directions and specifications made and given by defendant’s mining engineer. On this evidence the court directed a verdict for defendant.</p>

<p>Appeal from Circuit Court, Chilton County ; Leon McCord, Judge.</p> <p>Action between Sam Du Bose against G. C. Shaw & Son. There was a verdict for defendants and plaintiff being awarded a new trial, defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.</p>

<p>Appeal from Chancery Court, Pickens County; Thomas H. Smith, Chancellor.</p> <p>Bill by Marilou Marlowe against the Owings Lumber Company and another to foreclose a mortgage and enjoin cutting of timber. A temporary writ of injunction was. granted, and from a decree overruling a motion to dissolve and discharge the writ, respondents appeal.</p> <p>. Complainant advanced $4,000 to'Mrs. Lida I-I. Jones, and on February 25, 1913, Mrs. Jones and husband executed to complainant their promissory note for that sum, secured by a mortgage, not made an exhibit to the bill, and secured additionally by the assignment to complainant as collateral security a certain mortgage executed by W. H. Owings to Mrs. Jones on November 7, 1911, with a debt due of $2,800, and interest, and covering the 800 acres of land here involved, and being the mortgage here sought to be foreclosed. The respondents’ answer showed by exhibit that the direct security given to complainant was a mortgage'upon town lots and country lands which were alleged to be worth, and which the affidavit showed'to be' worth, about $11,000. The answer also showed the intervening history of the Owings mortgage to be as follows: It was assigned by the mortgagee, Mrs. Jones, to a Gordo' bank on December 19, 1911, as collateral security for her note for a debt of $3,156.50. After default in payment on December, 1912, said bank transferred and sold Mrs. Jones’ note for a recited cash consideration of $3,-222.83 to said W. H. Owings, assigning with it the principal mortgage directly securing it,, and also the Owings mortgage and note held by said bank as collateral. Thereafter, on March 15, 1913, for a consideration of $3,-399.33, Owings “granted, bargained, sold, and conveyed” to complainant the Jones note and mortgage, and also the Owings note and mortgage, “together with the premises therein described.” The deed contains the recital:</p> <p>“This transfer and assignment is made without any warranty or guaranty of title to any of the property mentioned in either of said mortgages above described, and without recourse of any liability whatever on us.”</p> <p>The cause was submitted on the motions to dissolve and discharge the injunction, on the sworn bill and sworn answer, and a number of affidavits showing the value of the security held by complainant outside of the Owings mortgage, and the value of the lands in the Owings mortgage with and without the timber..</p>

<p>1. Criminal Law <&wkey;1090(5) — Appeal on Record Proper — Matters Not Reviewable.</p> <p>Where defendant appeals on the record proper without a bill of exceptions, the Supreme Court is unable to review the trial court’s action in overruling his motion to quash the indictment because found by an illegal grand jury, or to quash venire because a true copy of the indictment was not served on him therewith, and cannot review overruling of defendant’s objections to being put upon trial because of such defect and omission.</p> <p>2. Indictment and Information <&wkey;147 — Demurrer — Want of Defect on Face.</p> <p>Demurrer to the indictment because of the alleged illegality of the grand jury was properly overruled, no defect appearing on the face of the indictment.</p> <p>¿3=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Tuscaloosa County; John D. McQueen, Special Judge.</p> <p>Action by R. C. Kyzer against the Kaul Lumber Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Jackson County; James E. Horton, Jr., Judge.</p> <p>Suit by G. B. Caldwell and another against D. K. Caldwell and another. From a decree for respondents, the complainants appeal.</p>

<p>Detinue &wkey;>18 — Burden oe Prooe.</p> <p>In an action of detinue to recover a_ bale of cotton, the burden of proof is upon plaintiff to establish his title to the specific cotton.</p>

<p>Appeal from Chancery Court, Franklin County; James E. Horton, Jr., Chancellor.</p> <p>Bill for partition by Sallie Smith and others against John Purser. Judgment for complainants, and respondent appeals.</p> <p>The lands sought to be divided consisted of 80 acres, find was originally owned by Jack Smith, who died in 1912. His widow died about three months later. Jack Smith left surviving him three married daughters, two sons, apd two jninors, children of a daughter who was dead. The three daughters, their husbands, and C. N. Smith, with liis wife, went before T. B. Barnes and made a deed to this land to their brother, John Smith. Barnes had been elected justice of the peace, and had qualified, and was acting as justice of the peace, but his term of office had not begun. It seems that all the grantors could write, but that none signed the deed, but had their names signed by the justice of the peace. Each grantor denied signing or authorizing his signature to be signed. At any rate the justice of the peace wrote the deed, signed the grantors’ names to it, wrote out the acknowledgment, and pinned them to the deed, and delivered it to' John Smith, who later on deeded it to John Purser.</p>

H. Benners, Chancellor. Bill by John M. Murphree against the Farmers’ 'Savings Bank to set aside a mortgage foreclosure sale, for resale, and to be allowed to redeem from said sale, or to have a decree for the amount of the purchase money over the amount due to the appellant’s bank. Decree for complainant, and respondent appeals.

<p>Appeal from City Court of Talladega; Marion H. Sims, Judge.</p> <p>Suit in chancery by Wiley F. Fitzpatrick against Lorena Stringer, R. L. Stringer, and others. Degree for respondents, and complainant appeals.</p>

<p>1. Malicious Prosecution &wkey;>71(l) — Evidence-Questions for Jury.</p> <p>In an action for malicious prosecution, however great the preponderance of probability may seem to be on the side of defendant, the question where the evidence is conflicting is one of.fact for the jury.</p> <p>2. Malicious Prosecution &wkey;>56 — Malice-Probable Cause — Burden of Proof.</p> <p>In an action for malicious prosecution, the burden is on the plaintiff to prove both malice and lack of probable cause.</p> <p>3. Afpeal and Error <&wkey;1015(3) — Weight oe Evidence — Statutes—Presumptions.</p> <p>Regardless of Acts 1915, p. 722, providing that on appeal there is no presumption as to the correctness of the judgment of the trial court on motion for new trial, a judgment will not be reversed on the ground of the insufficiency of the evidence although the judgment seems against the preponderance of the evidence.</p> <p>4. New Trial <&wkey;103 — Evidence—Malice— Probable Cause — Newly Discovered Evidence.</p> <p>Newly discovered evidence unknown to defendant when he caused prosecution of plaintiff could shed no light on the issues of probable cause or malice in an action for malicious prosecution.</p> <p>©a^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. False Imprisonment <&wkey;>7(l) — Justification — Defense.</p> <p>Justification of arrest and hnprisonment under legal process is a complete defense to an action for false imprisonment.</p> <p>2. Criminal Law &wkey;211(l), 218(5) — Affidavit and Warrant — Certainty.</p> <p>Though an affidavit and warrant in a prosecution before a justice of the peace were far from perfect, and would have been insufficient as an indictment, the same particularity was not required, and it was sufficient if either the complaint or warrant designated the offense by name only, or by words from which it might be inferred.</p> <p>3. .Chattel Mortgages <&wkey;231 — Buying Mortgaged Property — Criminal Prosecution-Affidavit and Warrant.</p> <p>An affidavit and warrant charging the offense of “buying mortgaged property” can be reasonably interpreted as charging a violation of Code 1907, § 7342, which prohibits “removing, selling or buying property to which others have claim,” and is therefore sufficient in a court of a justice of the peace.</p> <p><g=»3Tor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Names <&wkey;18 — Same Name — Presumptions of Identity.</p> <p>The presumption that identity of name in a special venire imports prima facie identity of person is prima facie overcome by recitals in the venire of diverse residences.</p>

C. Brickell, Judge. Assumpsit by the Tennessee Valley Bank against John R. Sample. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449.

• Appeal from Law and Equity Court, Walker County; T. L. Sowell, Judge. Action by Rufus M. Cunningham against Will J. Boshell and others for damages for false imprisonment, malicious prosecution, and assault and battery. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

<p>1. Logs and Logging <&wkey;3(15) — Right of Removal of Trees — Enforcement in Equity.</p> <p>Where the vendor by lawsuits, threats, and divers interferences has prevented the vendee from cutting and removing the trees and timber within the time limited in a deed, the vendee’s right to a reasonable time thereafter in which to remove will be declared and enforced by an appropriate decree in equity.</p> <p>2. Logs and Logging <&wkey;3(9) — Conveyance of Timber — Construction.</p> <p>Where a vendee entered on the land shortly after execution of,deed to him limiting title to timber then suitable for marketable saw timber, and removed such timber, he could not, after the lapse of some years, return and cut trees which were not large enough for saw timber at the first cutting.</p> <p>ifeplTor other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes</p>

<p>1. Trial <S=>91 — Evidence — Motion to Strike — Necessity of Previous Objection.</p> <p>•. A motion to exclude an answer to a question is properly overruled, in the absence of any objection to the question by which it was elicited.</p> <p>2. Evidence <i&wkey;215(3) — Admissions — Letters.</p> <p>In action for balance due under cropping contract, plaintiff could testify that be received a letter from defendant offering to buy bis interest in the crop for a stipulated price; such letter constituting an admission of what was due when it was written.</p> <p>3. Evidence <@=^213(1) — Offer to Compromise —Admissibility.</p> <p>The rule that an offer to compromise is inadmissible to establish the amount due does not apply where there was no controversy at the time the offer was made.</p> <p>4. Trial &wkey;>84(3) — Objection to Evidence-Scope.</p> <p>. An objection to testimony that plaintiff received a letter from defendant offering to pay a certain amount for his crop, on the ground that defendant’s offer was no evidence of the value of the crop, is not apt for presenting the question that the testimony related to a compromise offer and was therefore incompetent.</p> <p>5. Appeal and Error >&wkey;>1053(l) — Harmless Error — Evidence—Striking Out.</p> <p>In action for balance due under a cropping contract, original admission of'plaintiff’s testimony as to the value of bis -work, if erroneous, became harmless when such testimony was later ruled out.</p> <p>6. Landlord and Tenant &wkey;331(5) — Action on Cropping Contract — 'Variance.</p> <p>In an action by the tenant on a cropping contract where the plea of set-off and recoupment gave no hint of a claim for damages resulting from negligence in doing the work, evidence as to the difference in the yield had the crop been properly cultivated was properly ex- : eluded.</p> <p>¡S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Lauderdale County; W. H. Mitchell, Special Judge.</p> <p>Ejectment by Wesley Willis against Ada May. Judgment for plaintiff, and defendant appeals.</p>

Sterne, Special Judge. Action in the nature of ejectment by William M. Little against D. V. Vice. Judgment for defendant, and plaintiff appeals.

Equity Court, Mobile County; Saffold Berney, Judge. Assumpsit by the Mobile Auto Company against John Alexander. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 449.

C. Briekell, Judge. Suit by the Sanitary Plumbing Company against Mary D. Simpson, individually and as executrix, and others. From. a judgment for defendants, plaintiff appeals. Transfer-ed from the Court of Appeals under section 6, p. 449, Acts 1911.

<p>Appeal from Chancery Court, Crenshaw County; O. S. Lewis, Chancellor.</p> <p>Bill by Sam Gibson and others against R. M. Gibson and others. Decree for complainants, and defendants appeal.</p>

<p>1. Trial <&wkey;82—General Objections to Evidence.</p> <p>Where objections to questions to a witness were general, and the subjects the. questions concerned were relevant to the issues, the trial court properly overruled such objections, and also motions to exclude on the same general grounds.</p> <p>2. Evidence &wkey;>158(28) — Best Evidence — Books of Account—Statute.</p> <p>Under Code 1907, § 4003, providing that the books of account of any person, doing a regular business and keeping dauy entries, may be admitted as evidence on certain conditions, books of account, when properly supported by suppletory oath, are usually the best evidence of their contents.</p> <p>3. Mechanics’ Liens <&wkey;71 — Enforcement of Materialman’s Lien — Property of Married Woman.</p> <p>To sustain plaintiffs right to effect and have adjudicated and enforced a materialman’s lien on the lots of a married woman described in the complaint, it was essential to show, either that her husband in ordering the materials acted authoritatively for her and as her agent, or that, fully advised of the facts, she ratified his acts.</p> <p><£=»For other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>4. Mechanics’ Liens <&wkey;281(3) — Married Woman’s Property — Autiiority'and Ratification — Evidence.</p> <p>The mere act of a company in charging the price of materials for use on a married woman’s lots to her husband as “agent” tended neither to prove that she authorized or empowered her" husband to act as agent for her in the premises, nor to show a ratification of his- unauthorized acts by her; she not being shown to have the knowledge or information of the facts necessary to effect a binding ratification.</p>

W. Haralson, Judge. Ejectment by E. D. Rosebrook against J. E. Martin. Judgment for defendant, and plaintiff appeals.. Both parties claim from a common source, Noel C. Leach and wife, the plaintiff by deed of March 21, 1900, and defendant by mortgage from Rosebrook to Noel C. Leach, and the foreclosure thereof in chancery and deed to Martin under the decree. The other facts sufficiently appear.

<p>Appeal from Circuit Court,' Etowah'County ; John I-I. Disque, Judge.</p> <p>Action by R. B. Kyle against the Gadsden Hardware & Supply Company. Judgment for defendant, and plaintiff appeals.</p>

H. Benners, Chancellor. Bill hy S. C. M. Amason against H. M. Hartón and another to enforce an attorney’s lien upon land. From the decree for plaintiff, defendants appeal. The original bill was filed for the purpose of enforcing an attorney’s -lien upon certain land which accrued to respondent Hartón by the compromise of a suit in equity in which complainant had served as counselor and solicitor.

<p>1. Equity <&wkey;'418 — Default Decree Against One Not Served.</p> <p>While generally a decree pro confesso cannot be rendered against a defendant who has not been served with process or entered an appearance, where defendant files a cross-bill against complainant default may be entered as to the cross-bill in view of Code 1907, § 3118, providing that it shall not be necessary to issue summons to any defendant in a cross-bill except where he is not complainant in the original bill.</p> <p>2. Equity &wkey;>420 — Decree Pro Confesso — Setting Aside.</p> <p>Code 1907, § 3170, providing that a decree entered against a defendant, without personal service, who does not appear, is not absolute for 12 months, has no application to a defendant in a cross-bill who is a complainant in the original bill and against whom a decree pro confesso is taken by default.</p> <p>3. Divorce <&wkey;161 — Decree—Setting Aside —Time.</p> <p>The circuit court of the Tenth judicial district created by Acts 1888-89, p. 17, Acts 1907, p. 260, having- bad chancery jurisdiction conferred upon it by Acts 1894^95, p. 881, could not set aside its divorce decree 3 months after entry, where the record failed to show a proper continuance of the application therefor within the 3(hday period in which it was made or a regular continuance from term to- term in view of Acts 1888-89, p. 797, § 11, Acts 1898-99 p. 1213, and Chancery Court Practice Rule 81 (Code 1907, p. 1553), giving the right of application for rehearing if made within 30 days, and Acts 1894r-95, p. 881, providing that chancery rules have application to equity cases in said court; the general order of continuance of all pending cases being insufficient 'to prevent the lapse of the application.</p> <p>4. Judges &wkey;>28 — Acts Done in 'Vacation-Validity.</p> <p>Acts of a judicial nature, except such as may be specifically authorized by statute done in vacation, are absolutely void.</p> <p>5. Mortgages <&wkey;603 — Redemption — Reimbursement of Purchaser.</p> <p>Improvements made by purchaser at a mortgage foreclosure sale after he has acquired title are lawful charges under Code 1907, §§ 5746 et seq., as to redemption by debtors and others.</p> <p>6. Mortgages <&wkey;603 — Redemption — Reimbursement of Purchaser.</p> <p>The purchaser at mortgage foreclosure sale was not entitled to reimbursement for improvements made after foreclosure, where she did not upon written demand of party entitled to redemption furnish itemized statement of her lawful charges or show due diligence in attempting to comply with demand.</p> <p><&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.</p> <p>7. Mortgages <&wkey;G01, 602 — Redemption — Liability eor Waste.</p> <p>One in possession of land as purchaser at a foreclosure sale made in strict compliance with the terms of the mortgage is not a mortgagee in possession, but the absolute owner not chargeable with rent or waste.</p> <p>8. Mortgages t&wkey;601, 602 — Redemption—Liability eor Waste.</p> <p>A mortgagee in possession before foreclosure or after irregular foreclosure may be liable for rent and waste.</p> <p>9. BIortgages <&wkey;G01, 602 — Redemption—Liability eor Waste.</p> <p>A purchase by the mortgagee, unless authorized by the mortgage, is such an irregularity as to render him liable for rent and waste.</p> <p>10. BIortgages <&wkey;601 — Redemption — Liability eor Waste.</p> <p>After an offer to redeem accompanied by a tender, the purchaser in possession may be liable for waste committed.</p> <p>11. Executors and Administrators &wkey;>3(4) —Necessity oe Administration — Redemption EROM BIORTGAGE — DISTRIBUTION.</p> <p>In bill seeking redemption from mortgage foreclosure, division and distribution among the heirs should be granted where prayed; there being an offer to do equity and no debts of the estate other than Jliat embraced in mortgage in controversy, in view of Code 1907, § 5741, as to adjustment of all the rights and equities of the parties on bill for redemption.</p> <p><S^?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

W. Haralson, Judge. Action by John M. Daniel against the Tennessee, Alabama & Georgia Railroad Oompiany. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 450. The following are the charges refused to defendant: (2) The court charges the jury that the mere fact that plaintiff’s dog* was injured carries with it no presumption of negligence on the part of defendant’s servants or agents.

<p>Appeal from Circuit ' Court, Limestone County; James E. Horton, Jr., Judge.</p> <p>Bill in equity by N. D. French, as Sheriff, and as administrator of the estate of Bettie B. Dement, deceased, against John Dement and others. Frdm a decree for complainant, respondents appeal.</p> <p>Bill by appellee, as administrator of the estate of Bettie B. Dement, deceased, against John Dement and others, children and heirs at law of James C. Dement, deceased, to quiet the title to certain lands, specifically described in the bill,, and referred to as the “Oaple place” and also referred to as the “home place” situated in Limestone county, Ala.</p> <p>That the complainant was in the peaceable possession of the land as said administrator, and that respondents were claiming title thereto or interest therein, and that no suit was pending involving said title to said lands were questions admitted.</p> <p>Respondents answered the bill, claiming title to the land by virtue of being the children of James G. Dement, deceased. Upon submission of the cause for final decree on pleading and proof, the chancellor granted the relief prayed for in the bill, and entered his decree to the effect that respondents had no right, title, or interest in and to the lands. From this decree the respondents prosecute this appeal.</p> <p>The proof showed that one Josiah B. Dement died in November, 1884, seised and possessed of two tracts of land in Limestone county, Ala., one of which was known as the Oaple place, or home place, and the other as the Vassar place. He left a widow, Bettie B. Dement, of whose" estate complainant is administrator, and one son by a former marriage, James G. Dement, and through whom the respondents claim title. There was offered in evidence without objection a certain instrument signed by James G. Dement and Bettie B. Dement, and witnessed by one 'S. M. Olay, bearing date December 4, 1885, which was referred to as an agreement for a division of the estate of Josiah B. Dement. This agreement reads as follows:</p> <p>“This agreement entered into this the 4th day of December, 1885, as to‘the division of the estate of J, B. Dement, deceased, certifies that B. B. Dement take the Oaple place, and J. G. Dement take the Vassar place; also to equalize the value_ of said places the said B. B. Dement promises and binds himself )to pay the said James G. Dement the sum of one thousand dollars in five annual installments with interest from date (1st day of January, 1886), said payment to begin the 1st day of January, 1887, also her half of whatever balance there may be due on the Vassar place from the estate of Josiah B. Dement, deceased, to be paid in three years with interest from the 1st day of January, 1886. And it further witnesses that said James G. Dement agrees to release the said B. B. Dement from all liabilities hanging over the Vassar place, provided that Mrs. E. D. Vassar will consent to release the said Oaple place from said estate of Josiah B. Dement, said release to be effected by James G. Dement giving an individual mortgage on the Vassar place, it being his, part (by this agreement) of the estate of Josiah B. Dement.”</p> <p>There was also offered in evidence a deed executed by Bettie B. Dement to said James G. Dement, bearing date December 4, 1885, conveying all the interest of the grantor in what is referred to as the Vassar place, the deed reciting that the same was made “in consideration of a division of the estate of Josiah B. Dement, deceased,” between the wife, Bettie B. Dement, and the son, James G. Dement, and also refers to the sum of 81,000 which is to be paid the said grantee as “the amouqt necessary to equalize the division.” The evidence for complainant tended to show, as also appeared from the agreement as to the division of the.estate above set out, that, as a part of the agreement, the said Bettie B. Dement was also to pay one-half of the remaining indebtedness of the Vassar place which went to the said James G.' Dement in the division.</p> <p>In 1889 the said Bettie B. Dement executed a mortgage to James G. Dement to secure the sum of $2,015 which was payable in several annual installments; and the proof tended to show that this mortgage had been duly transferred to one Easter by the said James G. Dement, and that there still remained due some part of the indebtedness. This mortgage was offered in evidence duly acknowledged and recorded.</p> <p>There was no deed offered in evidence by James G. Dement to Bettie B. Dement to the Caple or home place, the lands here involved. The respondents contended .that their father, James G. Dement, only gave the said Bettie B. Dement a life interest in the said lands. Complainant offered proof tending to -show that said James G. Dement had in fact executed a deed to convey the lands, and that the same had been lost, misplaced, or ^destroyed; that the said Bettie B. Dement had since December, 1885, remained in the possession of said lands adversely and openly, claiming the same as hers absolutely, and executing two different wills disposing of same, and so continued in possession until the time of her death in July, 1915. Complainant offered testimony tending to show that the said James G. Dement had admitted that he executed his deed to the said Bettie B. Dement, but that for some reason he did not think it valid. Respondents offered testimony tending to show that Bettie B. 'Dement claimed only a life interest in the property, asserting that at her death the lands would go to these respondents. Complainant’s testimony further tended to show that the deed of James G. Demfent to Bettie B. Dement contained no limitations as to the title, but conveyed the land to her absolutely.</p>

<p>Appeal from Law and Equity Court, Morgan County; Thomas W. Wert, Judge.</p> <p>Action by J. B. Orr against the Louisville & Nashville Railroad Company. Judgment for defendant and order granting plaintiff’s motion for new trial, and defendant appeals.</p>

<p>Appeal from Circuit Court, Chilton County; Leon McCord, Judge.</p> <p>Action by Eunice Kennedy, administratrix, against J. H. Lyle, administrator. From a judgment for the latter, the former appeals.</p>

Miller, Judge. Action by William F. Dorough, as administrator, against the Alabama Power Company, for damages for death of his intestate. From a judgment for defendant, plaintiff appeals. Plaintiff sues to recover for the death of his intestate who was killed as the result of contact with defendant's high power wire, while he was in the service of the Standard Portland Cement Company, at a place where his work required him to be.

<p>1. Municipal Corporations &wkey;592(l), 661(2) —Streets—Regulation of Traffic — Ordinances — Validity.</p> <p>A municipal ordinance regulating traffic upon streets is not void for unreasonableness or uncertainty, nor for inconsistency with the general law of the state, merely because it fails to provide the rule of evidence that a rate of speed in excess of 30 miles an hour for a distance of a quarter of a mile shall be presumptive evidence of excessive speed, as is provided by Acts 1911, p. 642, § 21.</p> <p>2. Municipal Corporations <&wkey;70G(l) — Useof Street — Accidents — Pleading—Sufficiency.</p> <p>Failure of an automobile truck driver to observe the duty imposed by a mandatory ordinance requiring reasonable speeds, being negligence per se, in an action for personal injuries when struck by such truck negligence eo nomine need not be alleged.</p> <p>3. Municipal Corporations r<&wkey;70G(l) — Use of Street — Accidents—Pleading.</p> <p>In an action for injuries in an automobile accident, a count, ■ alleging the substance of an ordinance prohibiting excessive speeds, that it was in effect, and that the driver failed to comply therewith, and that plaintiff was injured in consequence thereof, was sufficient.</p> <p>4. Negligence <&wkey;85(3) — Contributory Negligence-Minors.</p> <p>A child seven years of age is prima facie incapable of contributory negligence.</p> <p>5. Municipal Corporations <&wkey;706(l) — In- ' juries on Street — Pleading—Demurrer.</p> <p>In an action for injuries to seven year old child in an automobile accident, it was not reversible error to sustain demurrer to a plea that the child ran from place of safety with knowledge of the approach of the automobile and so was injured, since, if the plea was not one of contributory negligence, it was denial of which defendants had the full benefit under the general issue, and if it were a plea of contributory negligence it was incompetent; plaintiff not being capable of contributory negligence.</p> <p>6. Municipal Corporations <&wkey;705(4) — Streets — Crossing Accidents — Evidence-Admissibility.</p> <p>In actiOT for injuries in automobile accident, the jury could consider, on the question of the proper rate of speed of the automobile, the fact that the street was torn up, that traffic was heavy, and that all vehicles had to pass on the street car tracks and not on the other portion of the. pavement.</p> <p>7. Damages <&wkey;212 — Instructions—Particular Words.</p> <p>Mere failure of instruction that reasonable compensation was within the discretion of the jury, to require the jury to exercise a sound discretion, is not error.</p> <p>8. Municipal Corporations <&wkey;705(4) — Streets — Speed of Travel — Negligence.</p> <p>If plaintiff was injured as a proximate consequence of driving an automobile in violation of a city ordinance by a servant of defendant acting within the line and scope of his employment, a prima facie case of actionable negligence was made out.</p> <p>9. Municipal Corporations <&wkey;70G(5) — Streets — Speed of Travel — Wanton Negligence.</p> <p>Evidence held to authorize finding of wanton and willful negligence in the driving of the automobile by which plaintiff was struck</p> <p>10. Municipal Corporations <&wkey;706(8) — Streets — Speed of Travel.</p> <p>Since automobiles have no special privileges in the street by reason of their speed, it is not error, in action for injuries when struck by automobile, to refuse a charge that the use of highways and streets must be extended to meet the modern innovations of rapid locomotion; such charge being misleading.</p> <p>11. Trial <&wkey;2G0(l) — Instructions — Requests Covered.</p> <p>By specific provision of Code 1907, § 5364, as amended by Acts 1915, p. 815, refusal of a charge fully covered by the court’s oral charge was not ground for reversal.</p> <p><to»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and.Indexes</p> <p>12. Municipal , Corporations ©=3706(8) — Streets — Crossing Accidents — Instructions.</p> <p>In action for injuries to a seven year old child by an automobile, a requested instruction that, if 'plaintiff voluntarily ran in front of the automobile, and that this alone caused his injury, verdict should be for defendant, was properly refused.</p> <p>13. Municipal Corporations <&wkey;706(8) — Streets — Crossing Accidents — Instructions.</p> <p>In action for injuries to a seven yeaT old child by an automobile, an instruction that, if plaintiff knew of the danger of being injured by an automobile traveling in the streets, and did not look for any automobile on the streets before he attempted to go back across the street, and he voluntarily left a place of safety and ran in front of the automobile, and this caused his injury, and the driver of the automobile was not guilty of negligence causing said injury, the verdict should be for defendant, was properly refused as calculated to mislead the jury.</p> <p>14. Appeal and Error <&wkey;999(l) — Scope oe Review — Finding oe Facts.</p> <p>Where a fact question is clearly for the 'jury, the court on appeal is unable to interfere with its finding.</p> <p>(S6=3Po.- other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Jefferson County; J. J. Curtis, Judge.</p> <p>Action by Walter Capps against the Sloss-Slieffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. Transferred from tbe Court of Appeals under Act April 18, 1911, p. 449, § 6.</p>

P. Almon, i Judge. Suit by James E. Wilson against John T. Ezzell. From decree for complainant, respondent appeals. Bill by ¡appellee against the appellant seeking a. sale for partition of a certain tract of land therein described in Franklin county, Ala., consisting of about 428 acres; ¡it being alleged that the complainant and respondent owned the said land as tenants in common, and that the same ¡could not be equitably divided without a sale thereof.

Smith, Judge. Suit between T. L. Brown & Co. and others and 'the Tishomingo Banking Company and others. Erom the decree, T. L. Brown & Co. and others appeal.

H. Alston, Judge. Detinue by the Owings Dumber Company against the Reform Feed & Commission Company and others for a carload of lumber. From a judgment for defendants, plaintiff appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449.

Sims, Judge. Attachment by H. Herzfeld against Isaac Hayne, wherein Miner J. Cliett filed a claim suit. Judgment for claimant, and plaintiff appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. This case was commenced by an attachment by H. Herzfeld, which was sued out against one Isaac Hayne, and levy was made on three bales of cotton in a warehouse at Childersburg, Ala., showing the levy by the numbers of the warehouse receipts and the weights.

P. Almon, Judge. Assumpsit by W. A. MeRight and wife against A. Famed. Judgment for defendant, and plaintiffs appeal. Plaintiffs sued to recover the surplus proceeds of a foreclosure sale made under power in a mortgage executed by them to defendant. The sale and conveyance pursuant thereto were made on July 21 and 27, 1914, respectively, and defendant became the purchaser for $3,100.

<p>Appeal from Circuit Court, Dale County; J. S. Williams, Judge.</p> <p>Action by the Dowling-Martin Grocery Company against R. E. Dominey. Judgment for plaintiff, and defendant appeals. Transferred from the Court oil Appeals under Acts 1911, p. 449, § 6.</p>

<p>1. Appeal and Error <&wkey; 1040(16) — Harmless Error — Overruling Demurrer to Count of Complaint.</p> <p>Where the court in its oral charge affirmatively excluded the first count of the complaint from the jury’s consideration, any error in overruling demurrer to the first count Was harmless to defendant.</p> <p>2. Railroads <&wkey;441(l) — Injuries to Stock —Statute.</p> <p>Where a mule was not injured by collision or contact with a railroad’s locomotive or ears, but by breaking its legs on a trestle upon which it ran away from the train, the provisions of Code 1907, § 5476, governing the burden of proof in cases of injuries to stock, are not applicable.</p> <p>3. Railroads <&wkey;441(l) — Injuries to Stock —Burden of Pleading and Proof.</p> <p>In an action against a railroad for injuries to a mule driven on a trestle by a train, the burden of efficient allegation, and of proof supportive thereof, to show negligence, or willful or wanton wrong, is upon plaintiff, unaided by any statutory presumption or shifting of the obligation of averment or of proof.</p> <p>4. Railroabs <&wkey;439(5) — Injuries to Stock —Pleading—Sufficiency of Averment of Negligence.</p> <p>The general averment of negligence in a count of the complaint that the injuries to a mule were the proximate consequence of the negligence of defendant railroad’s engineer, in that after he became aware of the peril of the mule on the track, he continued to approach the mule with his train, knowing that it would probably cause the mule to run onto a trestle ahead, and injure itself, was sufficient against demurrer.</p> <p>5. Railroads <&wkey;414 — Injuries to Stock — Liability.</p> <p>Where a mule was on a railway track through no negligence of the company, in the absence of wanton wrong, or willful or wanton omission or misconduct on the part of the railway’s engineer, the railway was not liable for injuries to the mule when it became frightened at a train and ran ahead of it onto a trestle, where its legs were broken.</p> <p>r other cases see same topic and KEY-NUMBER in all Key-Nurqbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Madison County; B. M. Miller, Judge.</p> <p>■ Action by the Alabama Red Cedar Company against the Tennessee Valley Bank. From a judgment for defendant, plaintiff appeals.</p>

A. Sharpe, Judge. Action by John King against the Tennessee Coal, Iron & Railroad Company for damages for personal injuries suffered while in the employment of defendant. Judgment for plaintiff, a,nd defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts 1911. A judgment by default was entered, and a writ of inquiry executed to ascertain the damages, and, upon the inquiry,. the questions discussed in the opinion arose.

<p>Appeal from Circuit Court, Madison County; R. 0. Brickell, Judge.</p> <p>Bill in equity by Mary P. Thompson against Sarah E. Ware and another. Prom a decree dismissing the bill, complainant appeals.</p> <p>Appellant, Mary P. Thompson, filed this bill against the appellees for the foreclosure of a mortgage on certain real estate situated in Madison county, Ala., executed by the appellees to the appellant in September, 1911. It was the contention of the respondents that the mortgage had been fully paid; the same having been paid to one Turner Petty, who, it is insisted, was the agent of the complainant, the mortgagee, and who, the evidence shows, subsequently absconded. That a sufficient sum was paid to said Petty to fully satisfy said mortgage indebtedness is without dispute. On August 1, 1912, the complainant executed a power of attorney to said Turner Petty, which was filed of record August 15, 1912, and which reads as follows:</p> <p>“Exhibit A — Power of Attorney.</p> <p>“Turner Petty, Attorney at Law, Huntsville, Ala.</p> <p>“State of Alabama, County of Madison.</p> <p>“Know all men by these presents that I, Mary P. Thompson, of Madison county, state of Alabama, do hereby constitute and appoint Turner Petty, of Madison county, state of Alabama, my true and lawful attorney for and in my behalf to receive and to hold in charge any or all of my notes and mortgages which I may turn over to him, for the purpose of collection, and he shall collect the interest on the same, and give receipt for same, or in my absence signing my name by him as attorney, as I may direct. Said Turner Petty is to give written receipt to Mary P. Thompson for all papers delivered to him; also to collect all mortgages and notes when due, giving receipt therefor, and have the power of attorney to mark the said mortgage or note paid in full, and in my absence to cancel the mortgage on the records at the courthouse and wherever else they may appear on record, giving the said Tumor Petty the power, in my absence, to satisfy such mortgages as fully and completely as though I had marked them satisfied myself in person. This power of attorney is given for the expresfe purpose of giving the said Turner Petty the power and authority, as I may advise, to collect any or all mortgages and notes that may come due to me from time to time and to receipt for same and mark same satisfied, as above stated.</p> <p>“I, Mary P. Thompson, do hereby ratify and confirm whatsoever my said attorney may do in the premises, according to 'contract.</p> <p>“©iven under my hand and seal this the 1st day of August, 1912. Mary P. Thompson.”</p> <p>Demand was served upon the complainant to mark the record of the mortgage satisfied, and also to show the payments that had been made thereon. The following is a copy of what appears on the record in answer to such demand, appearing as Exhibit A to the testimony of the witness Blanton:-</p> <p>“Exhibit A.</p> <p>“The following partial payments have been made upon the within mortgage on the following dates:</p> <p>Sept. 10, 1912................ $36 00</p> <p>Sept. 18, 1913................ 10 00</p> <p>Sept. 19, 1913................ 26 00</p> <p>Sept. 16, 1914................ 36 00</p> <p>Sept. 11, 1915................ 36 02</p> <p>Oct. 22, 1915................ 50 00</p> <p>“The total unpaid amount secured by this mortgage on September 7,1916, was $432.80, and the same is still the amount unpaid, with such interest as has accrued from that date to this date, September 15, 1916.</p> <p>“Mary P. Thompson, as Mortgagee.”</p> <p>Said witness Blanton also testified that there was found on the record of the mortgages of said Madison county entry of satisfaction on the margin "thereof of the following mortgages executed to the said Mary P. Thompson: By one J. M. Lee and wife, and entry of satisfaction dated December 4, 1913 ; another by James B. Lines and wife, and entry of satisfaction dated November 18, 1914; another by A. D. McLean, and entry bearing date of July 12, 1915; and another by James T. Baker and wife, being marked satisfied , December 14, 1915 — each of which entries of satisfaction was in the handwriting of said Turner Petty, and each of which made reference to the “power of attorney in Mortgage Book 114, p. 439.”</p> <p>At the time of the payment in full of said mortgage the mortgagors received the following receipt: '</p> <p>“Exhibit C.</p> <p>“No. 590. Jan. 31, 1914.</p> <p>“Received of Sarah E. Ware and R. T. Bentley four hunderd sixty-four and 25/ioo dollars for Sirs. Thompson’s mortgage in full.</p> <p>“$464.25. Turner Petty.”</p> <p>The note security for which the mortgage was executed reads in part as follows:</p> <p>“Turner Petty, Attorney at Law, Huntsville, Alabama.</p> <p>“$450.00. Huntsville, Alabama.</p> <p>“Por value received we hereby promise to pay at the law office of Turner Petty, Huntsville, Alabama, to Mary P. Thompson or order, the sum of four hundred and fifty ($450.00) dollars, with interest from date at the rate of eight per centum per annum, due and payable one year after date, together with the interest thereon.”</p> <p>And bears thereon the following indorsements:</p> <p>“Rec’d interest on within note to Sept. 6,1912.</p> <p>“Rec’d interest on within note to Sept. 6, 1913.</p> <p>“Rec’d interest on within note to Sept. 6, 1914.</p> <p>“Rec’d interest on within note to Sept. 6.1915.</p> <p>“And $50.00 on principal on Oct. 22, 1915.”</p> <p>The trial court concluded that the mortgage debt had been fully paid, and entered a decree dismissing the bill, from which the complainant prosecutes this appeal.</p>

<p>Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.</p> <p>Bill in equity by the Corona Coal & Iron Company against M. D. Townley and others. From a decree for complainant, respondent Townley appeals.</p>

P. Almon, Judge. Bill in equity .by Marvin Pearce, as executor, against the Brilliant Coal Company and others to reach corporate assets and subject them to judgment. Decree for respondents on demurrer, and complainant appeals.

<p>1. Brokers i&wkey;91 — Agency — Secret Instructions.</p> <p>A “broker” is an agent acting under a limited authority usually authorized to buy or sell a particular thing in specified quantities, and, though to bind his principal he must keep within the limits of the authority conferred upon him, yet secret instructions conflicting with the usual or apparent powers of a broker will no more affect the rights of third persons dealing with him ih good faith in ignorance of his instructions than in the case of an ordinary ■ agent.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Broker.]</p> <p>2. Brokers <&wkey;103 — Estoppel op Principal —What Constitutes.</p> <p>Defendant authorized a broker to sell for it cotton oil. The broker notified defendant on October 24th of a sale to plaintiff, and defendant, though notifying the broker on November 4th that the oil had been otherwise disposed of, did not notify plaintiff of that fact or in any way question the contract until November 13th. At that time defendant refused to perform the contract on the ground that a tank for the oil had not arrived in time, and did not until November 10th, after being notified that plaintiff would hold it liable for loss on account of failure to deliver the oil, repudiate the contract on .the ground of the broker’s want of authority. ffeld, that defendant was estopped from denying the authority of the broker, not having denied it promptly and in the meantime in effect sneculated on a decrease in the price of the oil.</p> <p>3. Brokers <&wkey;106 — Estoppel oe Principal —Evidence.</p> <p>Where, in an action for defendant’s breach of a contract made through a broker, defendant was estopped to deny the authority of the broker, evidence tending to discredit the broker’s authority was improperly received.</p> <p>4. Witnesses <&wkey;408 — Impeachment — Explanation op Contradiction.</p> <p>In an action by plaintiff on a contract of sale with defendant entered into through medium of a broker, where defendant was allowed to introduce telegrams which the broker sent to-other parties after the date of the alleged sale to plaintiff, the broker was, despite the rule that a witness is not allowed to testify as to the object and purpose of a given act, etc., entitled to explain the sending of such telegrams, for they were offered as contradictory statements to impeaeb him.</p> <p>5. Depositions <&wkey;9'5 — Admissibility —Answer to Part op Interrogatories.</p> <p>The answer of a, party to a part only of the interrogatories propounded by an adverse party cannot be received in evidence.</p> <p>6. Witnesses <&wkey;379(10) — Cross-Examination — Depositions on Former Trial.</p> <p>For the purpose of impeaching a witness he may be questioned as to his interrogatories on a former trial, and, if he admits the statements inquired into, the cross-examiner is not under the burden of introducing the whole of his answers to interrogatories on the former trial.</p> <p>7. Appeal and Error c$=31057(1) — Review-Harmless Error.</p> <p>The exclusion of evidence is not prejudicial, where the matters excluded are otherwise established.</p> <p>8. Witnesses &wkey;>330(l) — Cross-Examination —Scope.</p> <p>In an action on a contract of sale, plaintiff is entitled to cross-examine the manager of defendant as to whether the manager, after receiving a letter from the broker inclosing a contract of sale, notified the broker or plaintiff that defendant would not carry out the contract.</p> <p>9. Trial <&wkey;25'5(2) — Instructions — Request.,</p> <p>Party desiring charge on a special issue is bound to request the same.</p> <p><gr^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit 'Court, Mobile County; Norvelle R. Leigh, Jr., Judge.</p> <p>Bill in equity by the Manchuria Steamship Company against Harry G. G. Donald & Co. and others. From a decree dismissing complaiilant’s bill, complainant appeals.</p>

<p>Appeal from Circuit Court, Coosa County; B. L. Brewer, Judge.</p> <p>Action by J. S. and S. M. Lauderdale against W. E. Maxwell. Judgment for plaintiffs, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.</p>

<p>Appeal from Circuit Court, Coosa County; S. L. Brewer, Judge.</p> <p>Action by the Buckeye Cotton Oil Company against R. H. Crew. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911, p. 449, § 6.</p>

<p>Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.</p> <p>.Action by Mary M. Edmondson against C. Kuykendall. Judgment for plaintiff, and defendant appeals.</p> <p>The facts sufficiently appear. The following charges were refused to the defendant:</p> <p>(4) The fact that the defendant did not retreat was not a fighting willfully, wantonly, and intentionally.</p> <p>(5) The fact, if it be a fact, that the defendant did not retreat from the edge of the porch behind the corner of the room, cannot be looked to as a circumstance tending’ to contradict the defendant’s evidence that he shot in self-defense.</p> <p>(9) The fact, if it be fact, that the defendant could have retreated into his dwelling, and thereby have escaped any danger, if any bo was in, and that he did not do so or attempt to do so, cannot be looked to as evidence tending to prove that the defendant fought willingly.</p> <p>(33) In a ease of this kind the plaintiff must offer proof that reasonably satisfies the jury that the defendant was at fault in bringing on the difficulty of the occasion of the killing, and if no more proof on this point is offered than the fact that defendant came around the front yard with his gun and started into his house on a peaceful mission, this would not, without more, constitute fault on his part in bringing on the difficulty.</p> <p>(37) If it is true that the defendant could have retreated from his front porch to a place of safety, and did not do so, you cannot look to his failure to do so as evidence tending to show that his conduct in shooting the defendant (deceased meant] was willful, wanton, and intentional.</p> <p>(34) It-was not wrongful fov the defendant to go through his front yard with his gun, even though he may have known that Edmondson had gone to Albertville, and if, after considering all the evidence in this case, you are reasonably satisfied that the defendant did no more than that, and if on discovering defendant with his gun the deceased assaulted him with a pistol, the defendant had the right to use his gun in defending himself from such assault, and if from a careful consideration of all the evidence you are reasonably satisfied that the defendant did no more than this, your verdict should bo for the defendant.</p> <p>(43) If you are reasonably satisfied that at the time the fatal shot was fired the circumstances then surrounding the defendant and then known to him were such as to generate in the. mind of a reasonably cautious man, and did in fact generate in the mind of tlio defendant the honest belief that it was necessary for him to shoot in order to save his own life, or to save himself from serious bodily harm, then, if the plaintiff has failed to prove to your reasonable satisfaction by the evidence in this case that Kuykendall was at fault in bringing on the difficulty on the occasion of the killing, then your verdict should be for the defendant, and in determining whether or not the defendant was at fault in bringing on the difficulty, you cannot look to the fact, if it be a fact, that the defendant did not retreat into his dwelling from his front porch with his gun.</p>

C. Crow, Judge. Action by E. T. Beatty, wherein A. D. Gaut and others became defendant’s sureties on replevy bond. Judgment for plaintiff, and the sureties petitioned for supersedeas, which was denied, and they appeal. Transferred from Court of Appeals, under Acts 1911, p. 450, § 6.

<p>Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.</p> <p>Bill by the Birmingham Euel Company-against M. D. Townley and others. Decree for plaintiff, and Townley appeals.</p>

Pugh, Judge. Assumpsit by the Birmingham News Company against Mrs. R. R. Read and others. Judgment for defendants, and plaintiff appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. The instrument directed to be set out is as follows: To Birmingham News Publishing Company, Birmingham, Ala.: You may furnish to A. IT.

<p>Appeal from Circuit Court, St. Glair County; J. E. Blackwood, Judge.</p> <p>Action by Mrs. T. J. Climer and others against the St. Glair County Telephone Company, for trespass to lands. Judgment for defendant, and plaintiffs appeal. Transferred from the Court of Appeals under Acts-1911, p. 449, § 6.</p> <p>The gravamen of the complaint is sufficiently indicated in the opinion. The following charges were given for defendant:</p> <p>(2) I charge you that unless you believe from the evidence in this case that Bowley as an agent, employé, or servant of defendant, while acting in the line and scope of his duty, cut the trees described in the complaint, you cannot, find for plaintiff.</p> <p>(3) Before you can find for plaintiff in this, case you must believe from the evidence that the trees wore cut by defendant, or its agents or servants, while acting within the line and scope of their authority.</p> <p>The following is the charge refused to. plaintiff:</p> <p>(1) If the jury believe from the evidence that Burns, the president of the St. Glair County Telephone Company, directed its agents Otis and Bowley to go out and clear the telephone lines of all timbers touching said lines, and that defendant’s servants were acting within the line and scope of such instructions at the time they cut the timber complained of, then the jury must find for plaintiff under the first count of the complaint, provided the jury further find from the evidence that said timber was cut without the consent of the owners of the land.</p>

<p>Appeal from. Circuit Court, Henry County; H. A. Pearce, Judge.</p> <p>In equity. Bill, by J. R. Faircloth against the Farmers’ Guano Company for a receiver. Wliile the bill was pending, and the receiver managing the company, the Standard Chemical & Oil Company had garnishments issued on judgment formerly obtained against respondent company, and they were pending, whereupon the original bill was amended to enjoin such suits, and to enlarge the powers of the receiver. Demurrers were sustained to the amended bill, and it was again amended, and the demurrers overruled, and the Standard Chemical & Oil Company appeals.</p>

<p>1. Clerks of Courts <&wkey;2 — County Courts— Statute.</p> <p>Loe. Acts 1898-99, p. 1507, providing that the clerk of the circuit court of Conecuh county shall also be clerk of the county court, is repealed by Gen. Acts 1915, p. 862, and therefore the general provision of Code 1907, § 6698, making judges of the county courts clerks of their respective courts, is applicable to such county.</p> <p>2. Statutes <&wkey;64(10) — Matters Not Within Title — Invalidity in Part. Even, if Gen. Acts 1915, p. 865, § 9, subd.</p> <p>3. to the effect that clerks of circuit courts in certain cases shall be ex officio clerks of the county courts, is void, because not embraced within the title of the act as required by Const. 1901, § 45, it would not invalidate the whole act or invalidate it in so far as it repeals Loc. Acts 189S-99, p. 1507.</p> <p>3.Clerks of Courts @=2 — Clerk Ex Officio-Statutes.</p> <p>Gen. Acts 1915, p. 865, § 9, subd. 3, providing that the clerk of the circuit court shall be ex officio clerk of the county court, applies only to counties having a ponulation of more than 26,000 and less than 26,100 inhabitants; all other counties, not otherwise excepted, being governed by the Code provisions as to clerical duties and functions of the county court.</p> <p>(@^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Quo Warranto <&wkey;10 — Propriety oe Remedy — Determining Whether Thebe is a County Court by Statute.</p> <p>Quo warranto is the proper proceeding to determine whether or not there is a county court for Hale county by virtue of Acts 1915, p. 862 et seq., and whether or not, if there is such a court, the probate judge of the county is ex officio judge and clerk thereof.</p> <p>2. Evidence i&wkey;33 — Judicial Notice — Matter of Common Knowledge.</p> <p>It is a matter of common knowledge that the Legislature of 1915 appointed a committee to sit during recess to prepare and adopt bills for a revision of the judicial system of the state, that the committee reported back a great number of bills, and that many were re-enacted into laws at the session; one being Acts 1915, p. 862 et seq.</p> <p>3. Statutes &wkey;>225 — Construction—Acts in Pari Materia.</p> <p>Various acts looking to a revision of the judicial system of the state, being considered by the Legislature at the same time, and entering into the revised judicial system of the state, must, to some extent at least, be construed in pari materia.</p> <p>4. Courts i&wkey;42(3) — County Court of Hale County — Statute—Effect.</p> <p>Acts 1915, p. 862 et seq., repealed the various acts for Hale county pertaining to the county court, in so far as they were not otherwise saved from repeal by this and other acts, and put in force in the county the Code provisions relating to county courts, except as the act or other general acts might apply to such court in the county.</p> <p>5. .Statutes &wkey;>141(2) — Re-Enactment or Amendment — Constitution.</p> <p>Acts 1915, p. 862 et seq., in effect, with other statutes passed at the same session, repealing many local acts providing for or relating to county courts in the respective counties, is not violative of Const. 1901, § 45, as reenacting, amending, or extending the provisions of other laws, without setting out at length the laws so re-enacted, amended, or extended, the act not being a re-enacting or amending' statute within the constitutional provision, the more fact that the act refers to the general Code provisions rendered applicable by the repeal of local statutes not offending against section 45.</p> <p>6. Courts &wkey;>42(3) — Judges i&wkey;29 — County Court of Hale County — Probate Judge as Judge — Statutes.</p> <p>In view of Acts 1915, p. 862 et seq., in effect repealing many local acts providing for or relating to county courts in the respective counties, including Hale " county, provided for by Code 1907, 6696-6732, the Code provisions control in regard thereto, except as chang'ed by other general and local statutes in force, and the probate judge of Hale county is ex officio judge of the county court, under section 6690, authorized and required to discharge the dtíties of judge of the county court.</p> <p>On Rehearing.</p> <p>7. Clerks of Courts <&wkey;2 — County Court of Hale County — Probate Judge as riT TnTVrr C?m » 'PTT'T'T’S!</p> <p>Under Code 1907, § 6698, the probate judge of Hale county is the clerk of its county court, of which he is also judge; the provision of Acts 1915, p. 865, § 9, subsec. 3, which makes the clerk of the circuit court ex officio clerk of the county court, being limited to counties having more than 26,000 and less than 26,100 inhabitants.</p> <p><fc»For other cases see same topic and KSY-NUMBKB. in ali Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Lauderdale County; Charles P. Almon, Judge.</p> <p>Assumpsit by the Sharp Real Estate Company against C. L. Smith for commissions on real estate sales. Judgment for plaintiff and defendant appeals.</p> <p>The facts sufficiently appear. The following charges were refused to defendant:</p> <p>(1) I charge you that if you believe from the evidence that the Sharp Real Estate Company failed and refused to disclose the name of the purchaser, and for that reason defendant was unable to make a deed and furnish an abstract, then your verdict must be for defendant.</p> <p>(2) Before plaintiffs can recover, they must reasonably satisfy your minds that they brought to defendant a purchaser who was able, ready, and willing to buy defendant’s land in the terms set out in the contract between plaintiffs and defendant, and if you believe from the evidence that plaintiff did not produce such a purchaser, then you must find for defendant. The fact that the Sharp Real Estate Company, if it be a fact, failed and refused to disclose the name of the purchaser to Smith when requested so to do, and by so refusing Smith did not have sufficient information to enable him to make a deed and produce the abstract, it would be your duty to find for defendant.</p> <p>(5) I charge you that if you believe from the evidence that the Sharp Real Estate Company in any way represented both Smith and the prospective purchaser in this transaction, then defendant would not be obligated to pay plaintiff any commission.</p> <p>(6) The defendant is not required to take plaintiff’s word as to whether the purchaser was able, ready, and willing to carry out the terms of the contract, and if you believe from the evidence that plaintiff’s failure to produce a purchaser known to defendant to be ready, able, and willing to carry out the contract, then it would be your duty to find for defendant.</p>

<p>1. Appeal and Erbor <s&wkey;1058(l) — Harmless • Error — Excluding Evidence.</p> <p>Error, if any, in excluding book entries showing purchases and prices of seed, in action for broach of contract to sell seed, was not reversible, where the witness fully testified as to such purchases and prices.</p> <p>2. .Sales <&wkey;421 — Actions—Instructions.</p> <p>In action for breach of contract to sell cotton seed, instruction that if defendant sold plaintiff cotton seed, and it was agreed to draw a draft for 80 per cent, of seed shipped, and defendant failed to ship the seed, plaintiff could recover, was not objectionable as failing to hypothesize the conditions on which plaintiff was entitled to recover.</p> <p>3. Evidence <&wkey;474(19) — Value oe Property at Different Place — Knowledge oe Witness-Admissibility.</p> <p>Where witness in action for breach of contract to sell cotton seed disclosed that he was not familiar with prices, and the questions were not confined to prices at time and place involved, his testimony was properly excluded.</p> <p>4. Sale <&wkey;420 — Action eor Seller’s ■Breach — Jury Question.</p> <p>Where plaintiff’s evidence clearly shows breach of an unconditional agreement for the sale of the cotton seed at $25 per ton, and an advance of several dollars per ton at the time and place of delivery, defendant was not entitled to affirmative charge.</p> <p>©=>For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1.Bills and Notes &wkey;>509 — False Representation — Action by Indorsee — Notice— Agency — Evidence.</p> <p>Where a corporation, promoting an additional issue of stock to place a plant in defendant’s town, sent an agent to her town, who made representations as to the company in a speech at a town meeting at which plaintiff bank’s president was present, it was proper to admit in evidence, in an action on a note for a share of stock, false representations and agency of several townsmen, in substance tbe same as the speaker’s, where they had sought defendant out and prevailed upon her to take a share of stock and to sign a note in the handwriting of the speaker, and the representations in the speech of the speaker were also admissible to show that the bank which had taken over the note and had given in exchange a certificate of deposit due after maturity of the note, had notice of false representations and lack of consideration, and all other collective collateral facts 6f the promotion of the issue were admissible.</p> <p>2. Principal and Agent <&wkey;19 — False Representations.</p> <p>In an action by an assignee on a note for a worthless share of stock, the defense being false representations in procuring the note, it was necessary to show that the persons so procuring the note represented the corporation.</p> <p>3. Principal and Agent -&wkey;177(l) — Knowledge oe Agent — Presumptions.</p> <p>Although a principal is not bound by knowledge of an agent acquired prior to the agency, or knowledge acquired out of the scope of the agency, yet there is a rebuttable presumption that such an agent informs his principal of all material facts, no matter when acquired, bearing on the subject-matter of his agency.</p> <p>4. Principal and Agent <&wkey;193 — Knowledge oe Agent — Notice oe Lack oe Consideration-Questions eor Jury.</p> <p>In an action on a note by an indorsee, evidence held to take to the jury the question of notice of lack of- consideration by reason of knowledge of an agent gained out of the course of his employment.</p> <p>Exceptions, Bill oe <&wkey;26 — Equivocal Recitals.</p> <p>Where recitals in a bill of exceptions are equivocal, they must be interpreted against the exceptor.</p> <p>6. Trial &wkey;>256(2) — Misleading Instructions — Duty to Request Explanatory Instructions.</p> <p>Where charges contain misleading tendencies in consequence of unfavorable interpretation of their terms, it is tbe duty of a party complaining of them to request explanatory instructions.</p> <p>7. Bills and Notes <&wkey;o38(4) — Instructions —Notice to Purchaser — Misleading Charges.</p> <p>A charge that, if a corporation agreed to deliver a share of stock and failed to do so, and if plaintiff, suing as holder of defendant’s note for the stock, had knowledge of such breach, or had knowledge which, if followed up, would have resulted in such knowledge, your verdict should be for defendant, ‘held not misleading under the evidence.</p> <p>(g^oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

W. Haralson, Judge. Detinue by Henry Davidson against the T. D. Farrow Mercantile Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18,1911, p. 449. The evidence for plaintiff tended to- show that he had a bale of cotton from the ginyard known as the old Jordan gin, and that about a week afterwards the bale disappeared, and he went to Guntersville looking for it.

<p>Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.</p> <p>Bill by E. E. Lewis against P. N. Hickman. From decree for respondent, complainant appeals.</p>

Coleman, Jr., Judge. Action by Mrs. W. A. Pruett against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911, p. 449, § 6. Thel case is stated in four counts. The first alleges that she was negligently informed by defendant’s waiting woman that the west-bound train was the proper train for her .to take.

<p>1. Insurance i&wkey;>335(3) — Forfeiture for Breach — Keeping Books, Papers, and Safe.</p> <p>Conditions in iron-safe clause that insured merchant “keep a set of books which shall clearly and plainly present a complete record of all business transacted, including all purchases, sales, and shipments, both for cash and credit,” did not exact any specific system or form of bookkeeping, or one conforming to the most scientific standards, but would be satisfied if the books kept and records made would fairly show to a man of ordinary intelligence all purchases and sales, both for cash and on credit.</p> <p>2. Insurance <&wkey;335(3) — Forfeiture for Breach — Keeping Books, Papers, and Safe.</p> <p>One of the purposes of the iron-safe clause is to prevent perpetration of fraud by assured as to quantum and value of goods destroyed.</p> <p>3. Insurance &wkey;>335(3) — Parol Evidence— Records of Insured’s Business.</p> <p>The requirement in the iron-safe clause of a record of insured’s business excludes recourse to parol suggestion, except for the limited purpose of explaining .or elucidating the insured’s bookkeeping- method or entries. '</p> <p>4. Insurance <&wkey;335(3) — Iron-Safe Clause —Substantial Compliance.</p> <p>The requirement of the iron-safe clause that insured keep and produce for the insurer’s inspection the record of his business, is not substantially complied with where there is a hiatus for an appreciable period in such record.</p> <p>5. Insurance &wkey;>335(3)-Iron-Safe Clause —Compliance.</p> <p>Where from an insured merchant’s records which did survive fire destroying his stock, it was impossible to ascertain, unaided by recourse to insured’s memory, what goods became a part of the stock during the year immediately preceding the fire, or of what the stock actually consisted between the issuance of the policy and the fire, and, in consequence, the value of the insured goods, there was such failure to comply with the requirement in the iron-safe clause as to keeping and producing a complete record of the~business, as would preclude recovery on the policy.</p> <p>igr^eFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>6. Insurance <&wkey;665(8) — Actions — Issues and Variance — Waiver.</p> <p>Insured’s replication that after insurer’s adjuster was fully advised of breaches of policy conditions he assured insured that the policy would be paid, was not supported by evidence that he stated he would do in the premises what one B., an adjustor for other companies, did or would do, and that B. promised to pay the other policies.</p> <p>c§&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Insurance <&wkey;375(l) — Forfeiture — Waiver.</p> <p>Forfeitures provided in an insurance policy may be waived by an agent having authority and full knowledge of the facts of the forfeiture, but not every agent may waive such important contract provisions.</p> <p>2. Evidence <&wkey;258(l) — Agency—Declarations.</p> <p>Where the fact of agency rests in parol, or is to be inferred from the conduct of the principal, and there is evidence tending to show the agency, the agent’s acts or declarations are admissible in evidence, on the question of waiver vel non of the contract provisions, notwithstanding a policy provision against any waiver unless written upon or attached to the policy.</p> <p>3. Insurance , <&wkey;642 — Demurrer—Grounds —Matter Not Appearing on Face of Pleading.</p> <p>Where alleged “rider agreement” was not set out in or made a part of either complaint or plea, its effect as modifying the policy sued on could not be considered on demurrer to plea of breach of overinsurance limitation.</p> <p>4. Insurance i&wkey;336(6) — Conditions—Additional Insurance.</p> <p>The purpose of overinsurance policy limitations being to prevent fraud, and the public, as well as the assurer, being interested in preventing a situation in which a fire would be profitable to the assured, such clauses should receive a fair and reasonable interpretation, according to their terms and obvious import.</p> <p>5. Insurance <&wkey;336(6) — Conditions—Addi- ' tional Insurance.</p> <p>Where policy contained overinsurance limitation, and limited additional insurance to $10,-000, procurement of additional insurance of $10,500 without authorization by insurer forfeited the policy.</p> <p>6. Insurance &wkey;>335(3) — Forfeiture—Iron-Safe Clause.</p> <p>Where the insured’s books which ’ survived the fire were insufficient to show the quantity and value of insured merchandise at the time of the fire, unless aided by statements of assured as to the nature of the several items and values thereof, there was such noncompliance with the bookkeeping requirements of the “iron-safe clause” of the policy as forfeited the policy. .</p> <p>7. Insurance ^5335(3) — Forfeiture—Iron-Safe Clause.</p> <p>Insured’s ledger containing only a record of purchases by “bill,” without other description of the goods or articles represented thereby, ■ was not, without more, a substantial compliance with the bookkeeping requirements of the “iron-safe clause” of his policy.</p> <p>8. Evidence <&wkey;445 (1) — Parol Evidence — Subsequent Agreement.</p> <p>That a policy is written does not prevent its change or waiver of its conditions by subsequent parol agreement, notwithstanding a limitation that waivers must be in writing to bind the assurer.</p> <p>9. Insurance <&wkey;376(l) — Nonwaiver Agreement.</p> <p>. The status quo of the parties to a policy may be maintained. by a nonwaiver agreement entered into by them before and at the time of investigation and attempted adjustment of loss.</p> <p>10. Insurance <&wkey;376(l) — Nonwaiver Agreement.</p> <p>A nonwaiver agreement expressly agreeing that “any action taken, request made, or information received by said company or companies, while investigating and ascertaining the cause of said fire, and the amount of loss or damage, shall not in any respect or-particular change, waive, determine, invalidate, or forfeit any of the terms, conditions, or requirements osf the policy or policies of insurance of the company or companies whose names are signed hereto, or any of the rights of any of the parties hereto,” etc., precluded either party from pleading or introducing evidence of a parol waiver of his adversary’s rights under the policy during the period covered by the agreement.</p> <p><§=>Kor other cases see same topic and KEY-NUMBER in .all Key-Numbered Digests and Indexes</p>

<p>Appeal from Law and Equity Court, Morgan County; Thomas W. Wert, Judge.</p> <p>Action by P. W. Williams against the Fire Association of Philadelphia. From judgment for plaintiff, defendant appeals.</p>

Frank Moragne, alias Frank Moriner, was convicted of unlawfully transporting intoxicating liquors, and Ms conviction was affirmed by the Court of Appeals (74 South..862), and he brings certiorari.

C. Brickell, Judge. Action by Morgan County against tbe Fidelity •& Deposit Company to recover certain moneys. Judgment for defendant, and plaintiff appeals. Tbe action is to recover of defendant, as surety on tbe official bond of J. D. Epperson, county treasurer, a sum of money retained by Epperson out of public moneys received by Mm and claimed by bim as compensation for bis official services.

<p>Courts <&wkey;104^SuPREME Courts — Opinions.</p> <p>Under Acts 1915, p. 595, § 3, amending Code 1907, § 5999, so as to provide that justices of the Supreme Court shall not be required to write opinions in cases where the decisions relate to questions of fact only, etc., an opinion need not be rendered in a case where the only question at issue was the propriety of the chancellor’s determination of fact questions.</p>

; Paul Hodges, Special Judge. Petition by Bettie Cole and another for probate of the will of James Canaday, with contest by Josh Wade and another. From a decree admitting the will to probate, contestants appeal.

<p>Appeal from Circuit Court, Mobile County ; Saffold Berney, Judge.</p> <p>Action by Emile F. Fritz, as administrator., etc., against the Mobile Electric Company. Judgmeht for plaintiff, and defendant appeals.</p>

Action by. Emma Lloyd, as administratrix of the estate of Arthur Lloyd, against the Central of Georgia Railway Company, for damages for the death of her intestate. Judgment for defendant, and plaintiff appeals.

<p>Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.</p> <p>Proceeding by J. F. Wise and others against J. H. Spears and others. From a judgment sustaining a demurrer, plaintiffs appeal.</p>

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

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

<p>Certiorari to Court of Appeals. Proceeding between Consolidated Mercantile Company and R. L. Wai’ren, administrator. Application by the Consolidated Mercantile Company for certiorari to the Court of Appeals.</p>

<p>Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge. Bill by the P. M. Formby Company and others against George Hanvey and others. Decree for plaintiffs, and defendants appeal.</p>

<p>Appeal from Circuit Court, Russell County; J. S. Williams, Judge.</p>

La Fayette Jones was convicted of an offense, and to review a judgment of the Court of Appeals (74 South. 843), affirming such conviction, he applies for writ of certiorari.

<p>Appeal from City Court of Birmingham; John G. Pugh, Judge. Action by H. B. Praytor and others against the Alabama Great Southern Railroad Company. Judgment for defendant, and plaintiffs appeal. Transferred from Court of Appeals under section 6, p. 449, Acts. 1911.</p>

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

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

Action by Maggie Jones, administratrix, against the East Pratt/ Coal Company. Judgment for plaintiff affirmed by the Court of Appeals (75 South. 722), and defendant petitions for certiorari.

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

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

<p>Appeal from Chancery Court, Coffee County; O. S. Lewis, Chancellor. Action between Mary Cole and Malinda Law and others. From a decision in favor of the latter, the former 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 Chancery Court, Dale County; O. S. Lewis, Chancellor. Suit by H. L. Martin against Mary E. Garner and others. Decree for complainant, and defendants appeal.</p>

<p>Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge. Proceeding in equity by Jeanette Lowe, as executrix, etc., to settle her accounts, opposed by Sallie Larkin and others. From a decree on partial settlement, the executrix appeals.</p>

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

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

Simon McMillan was convicted of murder in the second degree, and he appealed to the Court of Appeals (75 South. 824)-, where the conviction was affirmed. Petition by defendant for certiorari to review and revise the judgment and ■decision of affirmance.

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

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

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

C. C. Phelps was convicted on several counts for violations of the liquor laws, and to review and revise a decision of the Court of Appeals (75 South; 877), affirming the conviction in part, and reversing and remanding in part, he petitions for certiorari.

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

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

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

<p>Appeal from Circuit Court, Winston County; J. J. Curtis, Judge. Action by the State, for the use of Winston County, against J. M. Tingle and others. From the judgment, defendants appeal. Transferred from the Court of Appeals under section 6, p. 449, Acts 1911.</p>

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