Volume 201 — Alabama Reports

J. Curtis, Judge. Action by M. M. Amerson, as administrator, against the Corona Goal & Iron Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section.6, Act of April 18, 1911, p. 449.

<p>Appeal from City Court of Birmingham; John C. Pugh, Judge.</p> <p>Action by Mrs. Pruie Camp against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Chancery Court, Jefferson County; A. II. Benners, Judge.</p> <p>Bill by A. C. Granville and others against Arnold Masberg, the Washington Park Land Company, and others. Decree for complainants, and respondents appeal.</p>

<p>1. Railroads t&wkey;446(3) — Killing Stock — Question for Jury.</p> <p>In an action against a railroad for killing a cow, where there was evidence to afford ground for the inference that plaintiff’s cow, found buried along defendant’s right of way, was killed by one of defendant’s engines or trains, yet there was other evidence warranting a different view of the question, whether defendant killed plaintiff’s cow was for the jury.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 1629.]</p> <p>2. Evidence <&wkey;471(19) — Opinion — Matter of Appearance.</p> <p>In such action, there was no error in allowing a witness to testify whether he “saw anything else had been buried on the right of way,” and what kind of a looking place it was, particularly where the actual conditions as to the burying of animals on the right of way were described by witnesses.</p> <p>3. Railroads <&wkey;443(2) — Killing Stock — Circumstantial Evidence.</p> <p>The death or injury of an animal caused by a railroad train may be shown by circumstantial evidence, as any other evidential fact may be shown.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 1608%:.]</p>

S. Lewis, Chancellor. Bill by Adelia Austin against the Bank of Coffee Springs. From decree for complainant, respondent appeals.

Horton', Jr., Chancellor. Bill by Mary J. Graft against J. P. Moon and others, to declare an instrument a will, or, if found not to be a will, to declare the instrument void and canceled as a deed; also to declare a lease void and canceled, and have same surrendered. From a decree dismissing the bill complainant appeals.

<p>Appeal from Circuit Court, Clay County; Marion H. Sims, Judge.</p> <p>Mandamus by the Alabama Power Company against F. J. Ingram, as Judge, etc. From the final order in favor of applicant, the probate judge appeals.</p> <p>Appellee, on the 29th day of October, 1915, obtained in the probate court of Clay county an order-or decree of condemnation of a right of way across the lands of one J. M. Steverson. The proceedings of condemnation were regular on their face, and recited that notice of the proceedings and of the day | set for their hearing was by the sheriff duly served upon the owner of the land, J. M. Steverson, on the 13th day of October, 1915; but no appearance was ever entered by Steverson, and the necessary and proper orders of and for condemnation were made by the probate court on the day set, the proceedings culminating in a final order or decree of condemnation confirming the report of the commissioners.</p> <p>On the 27th day of December, 1915, two months after rendition of this final order or ' decree, Steverson applied to the probate court to set aside the order of condemnation, because of a false return of the sheriff, alleging that no notice or process was served on him, and that he had had no other notice thereof. This application to set aside the judgment, order, or decree was made under the four months Statute (section 5372 of the Code). Notice of this application to set aside the judgment and grant a rehearing was served on appellee. Appellee corporation appeared and demurred to the petition or application, assigning various grounds, among which were these: That the court was without jurisdiction or power to award the relief prayed, and that the petition or application did not state facts sufficient to warrant the relief asked, even had the court such jurisdiction; the demurrer particularly pointing out the defects or insufficiencies of the petition or application.</p> <p>The probate court overruled the demurrer, and on the 15th day of January, 1916, set aside the order or decree of condemnation, and awarded a rehearing or new trial. Appellee thereupon applied to the circuit court of Olay county for a writ of mandamus compelling the probate judge of Clay county to annul his order setting aside the order or decree of condemnation and granting a rehearing or new trial. The probate judge appeared on the order of the circuit court, to show cause, etc., and a hearing was had, and the mandamus made final, commanding the probate judge to annul his former order granting a rehearing under the four months statute; and from this final order the probate judge prosecutes this appeal.</p>

<p>Appeal from City Court of Birmingham; A. H. Alston, Judge.</p> <p>Statutory ejectment by Mary Ann Snow against R. J. Tulley and others. Fl-om a judgment for defendants, plaintiff appeals.</p>

B. Foster, Judge. Action by Moses Dillard against the Miller-Brent Lumber Company, for trespass to land, conversion of timber, and for the penalty for cutting trees. Judgment for defendant and plaintin appeals. Transfered from the Court of Appeals under section 6, Acts 1911, page 449. The contract was of the ordinary character for the sale of merchantable timber standing l upon certain land, made in the year 1909, and to run for five years.

<p>Wills <&wkey;616(5) — Residuary Devise — Death oe Lire Tenant.</p> <p>Testator devised to his widow his entire estate, for life, to be used at her discretion, with power to sell the same without liability to account, and then made a gift over of all of the estate not disposed of by the wife to the heirs of his body. The widow purchased real estate in her own name, paying from funds! belonging to the estate. Held such investment for the use of the life tenant did not destroy its equitable character as part of the corpus of the estate; so that on the widow’s death the property passed by the residuary devise to the testator’s bodily heirs, notwithstanding the widow’s will, reciting that the property was her separate estate, purchased with her own funds, had attempted to devise it to another.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 1422.]</p>

<p>1. Guardian and Ward <&wkey;43 — Management oe Personalty — Disposal.</p> <p>A guardian may dispose of his ward’s personalty, including choses in action, without an order of eourt.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 173, 186-188, 190, 191.]</p> <p>2. Guardian and Ward <&wkey;43 — Disposal oe Personalty — Rights Acquired.</p> <p>A person receiving property from a guardian is not required to see that its proceeds are used for the ward’s benefit, although he is liable if he knows the guardian is making improper use of the property.</p> <p>[Ed. Note. — -For other cases, see Guardian and Ward, Cent. Dig. §§ 173, 186-188, 190, 191.]</p> <p>3. Guardian and Ward <@=»45 — Pledge of Ward’s Personalty — Rights Acquired.</p> <p>Where a guardian pledges his ward’s property for a present loan, ,a pledgee without notice to the contrary may assume the transaction •is proper.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 202-205.]</p> <p>4. Corporations <&wkey;123(7) — Stock Certificate-Pledge.</p> <p>An equitable title is passed to a pledgee by the simple delivery of a stock certificate.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 508.]</p> <p>5. Guardian and Ward <&wkey;45 — Pledge of Ward’s Personalty — Rights Acquired.</p> <p>Where a guardian pledges shares of stock belonging to his ward as security for a loan, a pledgee without knowledge of the actual ownership secures an unimpeachable title to the stock and its dividends.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 202-205.]</p> <p>6. Payment <&wkey;5 — Joint Obligees.</p> <p>A debtor may discharge his debt by payment to one of several joint obligees, although some of them are minors.</p> <p>[Ed. Note. — For other cases, see Payment, Cent: Dig. §§ 7, 8.]</p> <p>7. Guardian and Ward <&wkey;174r — Indemnity Bond — Liability.</p> <p>A guardian’s surety is not liable for funds received by the guardian in his individual capacity.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 590-599.]</p> <p>8. Subrogation <&wkey;7(4) — Voluntary Payment.</p> <p>A guardian’s surety is not entitled to subrogation for payment of the guardian’s personal obligations for which it was not legally liable.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 22, 83, 92.]</p>

O. Crow, Judge. Action by George E. Busb, as administrator, etc., against Samuel Wilder and another for damages for wrongfully altering, changing, or falsifying tbe minute record of the circuit court of Jefferson county. From a judgment for plaintiff, defendants appeal. Transferred from tbe Court of Appeals under Act of April Í8, 1911, p. 449, § 6. The facts sufficiently appear.

<p>1. Bankruptcy <&wkey;438 — Money Collected eok Bankrupt After Discharge — Liability oe Attorney.</p> <p>After a bankrupt has been discharged he may sue for and recover property not administered, and an attorney who prosecutes such suit and pays over to bankrupt money received in such litigated action is not, -in the absence of fraud, liable for amount so paid on estate being reopened.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 626.]</p> <p>2. Bankruptcy <&wkey;438 — Lien op Attorney.</p> <p>Where after bankrupt had been discharged attorney recovered for him in a litigated suit a sum of money, attorney had a lion for his services, and could retain an admitted reasonable fee which in the absence of fraud could not be recovered on reopening of the bankrupt’s estate.</p> <p>[Ed. Noté. — For other cases, see Bankruptcy, Cent. Dig. § 626.]</p> <p>3. Estoppel <&wkey;90(l) — Estoppel by Acts— Attorney and Client.</p> <p>In such case bankrupt would be estopped by his own acts from claiming against the attorney.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 242, 243, 249, 251-255.]</p>

<p>1. Cancellation of Instruments <&wkey;37(7)— Sufficiency of Bill — Knowledge of Insanity.</p> <p>Under Code 1907, § 3347, providing that when any person shall, in good faith and for a valuable consideration, purchase real estate from an insane person without notice of his insanity, the conveyance is not void, but that the insane person may recover the difference between the market value of the land and the price paid, and section 3348, providing that except as provided in the preceding section, contracts of insane persons are void, a bill seeking cancellation of an insane person’s conveyance was insufficient, whore it did not allege the grantee’s knowledge of the grantor’s insanity at the time of the conveyance.</p> <p>[Ed. Note. — Eor other cases, see Cancellation of Instruments, Cent. Dig. §§ 68, 75, 76.]</p> <p>2. Equity <&wkey;388 — Submission fob I-Ieabing —Dismissal of Bill.</p> <p>Whore after repeated amendments of a bill, submission was had for final decree on defendants’ answers and on their demurrer incorXiorated therein, as permitted by Code 1997, § 3128, in the case of answers to bills amended after answer, there was no error in dismissing the bill without prejudice for failure of a necessary averment.</p> <p>[E<J. Note. — Eor other cases, see Equity, Cent. Dig. §§ 827-829.]</p> <p>3. Equity <&wkey;388 — Submission fob Hearing-Dismissal.</p> <p>Under Laws 1915, p. 135, providing that the chancery court shall always be open for the transaction of business except that the court shall not have power to open or set aside any final decree after 39 days from its rendition, where submission was had by agreement of counsel for final decree, there was no error in rendering a decree of dismissal on holding the bill insufficient.</p> <p>[Ed. Note. — Eor other cases, see Equity, Cent. Dig. §§ 827-829.]</p>

Appeal ■ from City Court of Birmingham; H. A. Sharpe, Judge. Action by John C. Pugh against S. H. Floyd and another for breach of contract. From a judgment for plaintiff, defendants appeal. The agreement is as follows: Dean & Floyd have heretofore bought of Pugh 497 shares of the capital stock of the Security Life & Accident Insurance Company, at the par value of $4,970, and certain furniture to the sum of $75. Dean & Floyd have received the said stock and furniture in full.

<p>1. Principal and Agent <&wkey;C9(4), 75 — Breach oe Fiduciary Relation by Agent —Damage.</p> <p>Where an agent abuses his fiduciary relation with his principal by buying from himself as agent the property of his principal, the transaction is void, unless ratified by the principal with full knowledge of all the circumstances, and to repudiate he need not show damage.</p> <p>2. Principal and Agent <&wkey;84 — Purchase at Own Sale op Principal’s Property — Recovery op Compensation by Principal.</p> <p>An agent cannot become directly or by collusion the purchaser at his own sale of Ms principal’s property, and if he does so without the principal’s knowledge or consent, the latter may recover the compensation paid the agent.</p> <p>3. Principal and Agent &wkey;>75 — Waiver of Rigjit to Avoid Agent’s Acts in Bad Faith — Presumption of Ratification.</p> <p>The principal, if he sees fit to do so, with full knowledge of the facts, may waive the rule that his agent’s acts in bad faith, as by purchasing the principal’s property for himself, are void as to the principal, and his ratification may be presumed if he does not repudiate within a reasonable time after knowledge.</p> <p>4. Brokers <&wkey;65(6) — Realty Broker — Right to Commission.</p> <p>Where a realty broker was authorized to sell at a minimum price of $32.50 an acre, with the understanding that, if he sold for as much as $35 an acre, he should get a commission of 5 per cent., and if he sold for not less than $33.25, and not exceeding $35 an acre, he should get all in excess of $33.25 per acre, and such broker sold for $37.50 per acre, having endeavored to get away from the original contract when sending his principal a telegram for permission to sell at $32.50', the principal not having been deceived into making' a new contract, or relinquishing his rights, as he approved the contract of sale, which disclosed the real transaction, on its receipt, safeguarding himself by an accompanying letter holding the broker to the original agreement as to compensation, the broker was entitled to a commission of 5 per cent, under the-original agreement, and, his principal, not having been misled, and having expressly ratified the sale on condition the broker should be paid as provided by the original agreement, cannot set up that the broker forfeited his right as intending to get from under the original agreement.</p> <p>5. Pleading <&wkey;34(l) — Construction — Statement of Counsel.</p> <p>The court, in ruling upon plaintiff’s pleading, should have been controlled by what the complaint contained, and not by the statement of plaintiff’s counsel as to what he was claiming.</p>

<p>Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.</p> <p>Action by M. Aquilino against the Birmingham Railway, Light & Power Company. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 449.</p>

<p>1. Customs and Usages <&wkey;19(2) — Evidence &wkey;>142(5) — Attorney Fees — Similar Facts.</p> <p>In determining the proper division of fees between attorneys and associate counsel employed by them, evidence of a custom among members of the city’s bar where an attorney engaged an associate, as had been done, to divide tlie fees equally, and evidence of other employments between the parties in other similar cases, wherein the fees were equally divided, was admissible.</p> <p>2. Attorney and Client <&wkey;151 — Compensation — Employment oe Other Firm — Right to Fund in Court.</p> <p>The principle that associate counsel having no contractual relation with the client can have no claim to any part of the fund recovered, but must look for compensation to the attorney employing him as an associate, has no application' to a bill of interpleader to determine rights to fees left by the client with the clerk of court, in which case the fund will be awarded according to the agreement for- division between the attorneys.</p> <p>3.Attorney and Client <&wkey;151 — Employment oe One Firm by Other — Right to Compensation.</p> <p>Where attorneys employed by another firm as associate counsel were to have a half of whatever amount was recovered in fees if the case went to the Supreme Court, and the case went to such court, the associates are entitled to their half, unless they abandoned the contract, or declined, refused, or failed without excuse to perform.</p>

<p>Appeal from Circuit Court, Talladega County; Hugh D. Merrill, Judge.</p> <p>Action by Weil Bros, against J. F. Hanks and J. H. Coughlin. From a judgment for defendants, plaintiffs appeal.</p>

W. Haralson, Judge. Action by Ida Johnson against J. K. Johnson for damages for assault and battery. Judgment for plaintiff, and defendant appeals.

<p>1. Assault and Batteky &wkey;32G — Self-Defense — Burden of Proof.</p> <p>Defendant in an action for assault and battery who set up self-defense lias the burden of proving lie was free from fault in bringing on the difficulty, the rule as to the burden of proof not being changed, because freedom from fault may be shown prima facie by proof of an imperative necessity for defendant’s assault; such proof merely shifting the burden of going forward.</p> <p>2. Assault and Battery <&wkey;2S — Actions— Evidence.</p> <p>Where it appeared that defendant in assaulting plaintiff used a plumb bob, which was a pear-shaped metal piece attached to a chain, and used in defendant’s office as a paper weight, testimony that several months before the assault defendant struck his hand with the plumb bob and remarked that he could make a nice round hole in a man’s head with it was admissible to show defendant’s consciousness of the efficiency of the plumb bob as a weapon of attack.</p>

<p>Appeal from Circuit Court, Monroe County; A. B. Foster, Judge.</p> <p>Willie Reeves was convicted of uxoricide, and he appeals.</p>

Blackwood, Judge. Action in ejectment by Will Quinn against the Tennessee Coal, Iron & Railroad Company. Judgment for defendant, and plaintiff appeals.

<p>Appeal from Circuit Court, Tallapoosa County; W. W. Whiteside, Judge.</p> <p>'Controversy between W. F. Leach, as guardian, etc., and William Gray and others. From the decree rendered, the former appeals.</p>

<p>1. Specific Performance <&wkey;8 — Right to Remedy — Discretion of Court.</p> <p>Discretion of court in awarding or denying specific performance is not an arbitrary authority, but a sound discretion, regulated as nearly as may be by general rules.</p> <p>2. Specific Performance &wkey;>&wkey;REMEDY at Law — Effect.</p> <p>Specific performance will not be had, if the performance, as distinguished from damages or compensation in money for the breach, cannot be of importance to complainant.</p> <p>3. Specific Performance ¡&wkey;28(l) — Contracts Enforceable — Certainty.</p> <p>A contract will not be specifically enforced, unless it is certain in its terms, or can be made certain, under rules of law and evidence; nor can it be enforced if it leaves any of its terms open to future treaty or to be afterwards settled.</p> <p>4. Specific Performance <&wkey;32(10 — (Mutuality of Remedy.</p> <p>Mutuality is necessary to specific performance.</p> <p>5. Specific Performance &wkey;>29(2) — Conveyance of Land — Description—Sufficiency.</p> <p>A contract to convey certain parts of several sections of land in a certain county and township “ranges, 1 & 2 E.,” together with the timber rights on 240 acres, more or less, adjoining said above-described tract, cannot be specifically enforced, the descriptions being-vague with reference to range.</p>

<p>1. Executors and Administrators <&wkey;336— Sales of Land — Application — Sufficiency.</p> <p>Petition of administrator de'bonis non, stating that personalty is insufficient to pay debts, that there is no personalty, that debts were $500 and are unpaid, that the heirs are two sons of deceased, both over 21, and stating their residence, is sufficient, under Code 1907, § 2622, stating requisites of such petition.</p> <p>2. Executors and Administrators <&wkey;338— Sales of Lands — Necessity.</p> <p>The existence of a necessity for subjecting the lands to sale to pay debts is of the essence of the application by a personal representative to sell for such purpose, and hence the heirs may show the nonexistence or the extinguishment of such debts in defense of the application to sell.</p> <p>3. Executors and Administrators <&wkey;33G— Sales of Lands — Petition—Requisites.</p> <p>Petition authorized by Code 1907, § 2622, by personal representative in probate court for sale of lands to pay debts, is jurisdictional, and must conform to statute, which requires the lands to be described accurately.</p> <p>4. Executors and Administrators <&wkey;349(2) —Sales of Lands — Validity.</p> <p>Where general county administrator assumed to administer estate and was removed, sale on petition of administrator de bonis non will be sustained on collateral attack by ejectment suit, on theory that there was no vacancy authorizing appointment of administrator de bonis non.</p>

<p>Appeal from Circuit Court, Jefferson County ; H. P. Ileflin, Judge.</p> <p>William Blackmon, alias,- etc., was convicted of murder in the first degree, and lie appeals.</p>

Leigh, Jr., Judge. Petition by the State, on the relation of Stephen Carlin, for a writ of mandamus against George E. Stone, as Treasurer of Mobile County. From a judgment issuing the writ, respondent appeals.

Lee Cowart was convicted of embezzlement, and, the judgment being affirmed by the Court of Appeals (75 South. 711), defendant • petitions for certiorari directed to the Court of Appeals.

<p>Appeal from Circuit Court, Lee Comity; Lum Duke, Judge.</p> <p>Action by C. J. Suddutli against the Central of Georgia Railway Company in trespass and 'on the case. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; E. C. Crow, Judge;.</p> <p>Action by Mrs. Jennie B. Hughes against the Locomotive Engineers’ Mutual Life & Accident Insurance Association. From a judgment for plaintiff, defendant appeals.</p>

Joe H. Kramer was convicted of embezzlement, and appealed to the Court of Appeals, which reversed the judgment (75 South. 185), and the State brings certiorari.

<p>1. Licenses @=>7(S) — Double Taxation.</p> <p>Acts 1915, p. 573, imposing license tax on vehicles, is not unconstitutional as double taxation.</p> <p>2. Certiorari <&wkey;36 — Scope.</p> <p>To grant writ of certiorari on a point or for reasons not presented to Court of Appeals, when petition for writ urged only grounds presented to such court, is in direct violation of rule 42 (175 Ala. xx), providing for hearing on certiorari only on matters for wMch rehearing in Court of Appeals has been refused.</p> <p>Certiorari to Court of Appeals.</p> <p>Petition by Will Strawbridge for certiorari to review order of 'Court of Appeals (76 South. 479), reversing judgment for the State and remanding.</p>

<p>Appeal from Circuit Court, Talladega County; Hugh D. Merrill, Judge.</p> <p>Action by G. P. Hamilton and others against tbe Alabama Power Company and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.</p> <p>Suit by R. E. Cox and others against tbe Burford-Goff Supply Company. Bill dismissed, and complainants appeal.</p>

<p>Appeal from Circuit Court, Clarke County ; Ben D. Turner, Judge.</p> <p>Bill in equity to quiet title by D. C. Wilson against the G. W. Zimmerman Manufacturing Company. Decree for plaintiff, and defendant appeals.</p>

<p>1. Dedication <&wkey;18(2) — Grant of Perpetual Use of Lane.</p> <p>Grant to a purchaser of a lot of “the perpetual right of use in, to, out of, over, along and across” a 20-foot lane on grantor’s land between the lot and remainder of grantor’s property, which lane had previously been a purely, private one for convenience of grantor’s property, did not amount to a dedication thereof by grantor, in the sense to make it a public street, road, or alley, as where lands are platted and mapped into streets, alleys, etc., and lots are sold in accordance with the map or plat.</p> <p>2. Easements <&wkey;12(l) — Construction — Private Lane.</p> <p>A deed granting the perpetual use of a private lane must be construed in the light of the facts and circumstances attending its execution and in the light of the use to which the lane has since been put by all the parties to the deed for more than ten years.</p> <p>3. Easements <&wkey;G0 — Removal of Obstructions in Lane.</p> <p>Even if, when grantee was given perpetual use of lane on grantor’s property, he was also given right to remove gates therein, his remedy, upon grantor’s refusal to remove them, was to remove thorn himself, rather than to bring a bill in equity, unless his attempt was resisted by grantor.</p> <p>4. Easements <&wkey;60 — Obstruction — Compelling Removal of Obstruction.</p> <p>Where a grant of perpetual use of lane on grantor’s land made no mention of existing gate, but for ten years the grantee did not treat the gate otherwise than as a proper accessory to prevent trespassing, and grantor never used it to obstruct the use of grantee or others, nor claimed a right to do so, the grantee could not compel its removal by grantor.</p>

<p>1. Statutes <&wkey;13S(2) — Amendment^-Reeebence to Title.</p> <p>Code 1907, § 1328, providing that such persons as are authorized to redeem property sold at state tax sales may redeem property sold for municipal taxes, and adopting the appropriate provisions of section 2313, relating to redemption of property sold at state tax sales, does not offend' Const. § 45, providing that no law shall be reviewed, amended or the provisions thereof extended or conferred, by reference to its title only.</p> <p>2. Tenancy in Common &wkey;>2Q(l) — Redemption.</p> <p>Redemption from a tax sale by a tenant in common inures to the benefit of all cotenants, even though the period of redemption has expired as to the latter.</p> <p>3.-Municipal Corporations <&wkey;981 — Tax Sale — Redemption—Tender to Whom.</p> <p>Under Code 1907, §§ 1328, 1329, relating to redemption of property sold for municipal taxes, one redeeming must pay or tender the money due to'the purchaser or the city treasurer, and not to a vendee of such purchase.</p>

<p>Certiorari to Court of Appeals.</p> <p>■G. Baader was convicted of a violation of the prohibition law, and he appealed to the Court of Appeals, which affirmed the judgment of conviction (75 -South. 820). Defendant brings certiorari.</p>

Action by the A. Z. Bailey Grocery Company against the H. C. Schrader Company, substitute defendant. Prom judgment for plaintiff, defendant appealed to the Court of Appeals, which reversed and remanded (74 South. 749 1), and plaintiff petitions for certiorari.

O. Brickell, Judge. Suit by H. T. Manson against John F. Sutterer. From a judgment for defendant, plaintiff! appeals. Motion was made to strike the bill of exceptions on the ground that it contained questions and answers of witnesses Manson and Turnbull, and did not contain their evidence in narrative form. The testimony of these witnesses was obtained by taking their depositions. Another ground was that the bill contained two bills of sale which were the same.

Merrill, Judge. Bill in equity by J. W. Sleigh and another against T. L. Cars-on and others, wherein defendants filed a cross-bill. From the decree rendered, defendants appeal.

B. Foster, Judge. Suit by the City of Troy against the Standard Chemical & Gil Company to recover business license taxes. From a judgment for plaintiff, ' defendant appeals. Transferred from tile Court of Appeals under Act April 18, 1911 (Acts 1911, p. 449) § 6.

Miller, Judge. Action by C. A. Buff, as administrator of the estate of Washington M. Childress, against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals.

Action by J. A. Watson against the Florida Nursery & Trading Company. From a judgment by default, defendant appealed to the Court of Appeals (75 South. 875), where the judgment was affirmed, whereupon he petitions for certiorari.

Sims, Judge. Suit by Anna Biggins and others against A. L. Sims and others for injunction. Decree for plaintiffs, and defendants appeal.

C. B. Gwin, Judge. Suit by H. A. Hubbard against the Woodward Iron Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Circuit Court,,. Jefferson County; John C. Pugh, Judge.</p> <p>Action by John II. Roddam against W. S. Brown and another From a judgment fpr defendants, plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450.</p> <p>The action was on a promissory note and mortgage given for the sale price of a cow. The following pleas were interposed:</p> <p>(4) Defendants aver that part of the consideration of the note sued on was the sale by plaintiff to defendants of a certain cow, among others, which certain cow plaintiff warranted as a part of consideration to defendants to be sound; that in fact said cow was not sound, and was delivered to defendants in an unsound condition, and as a proximate consequence of said breach of said warranty defendants lost said cow, she having died, and before the death of said cow defendants were put to great trouble, inconvenience, worry, and expense in or about treating said cow, and attempting to cure her, and were deprived for a long time of the use of the milk of said cow, same being unfit for use by reason of the said unsoundness of said cow, and defendants were put to great trouble, inconvenience and expense in or about providing for, maintaining, and keeping said cow in her unfit condition, all to the damage of defendants in $100, and defendants hereby offer to offset against the claim of plaintiff and claim judgment for the excess.</p> <p>(5) Defendants aver that part of the consideration of the note sued on was the sale by plaintiff to defendants of a certain cow, among others, which certain cow plaintiff fraudulently represented to defendants to be sound when in truth and in fact she was not sound at or before said sale, and as a part thereof and defendants relied upon said representation's, and as a proximate consequence of said fraudulent misrepresentation defendants suffered the injuries and damage set out in the fourth plea, all to their damage in $100, which they offer to offset against the claim of plaintiff, and they claim judgment for the excess.</p> <p>Judgment by default was suffered, in the court below, and a petition was filed by defendant for certiorari to remove the cause on the ground that defendants had a good and valid defense, and that they were not served with copies of the process, nor was either one of said defendants notified in any way that said suit had been instituted or was pending, and petitioners did not take an appeal from said judgment within the time prescribed by law, because they had no notice of said suit until the constable came to their home at Yineville to take the cows from them, which was more then five days after the rendition of the judgment, and hence defendants could not appeal. Motion was made to quash the writ because the judgment appealed from was a default judgment, and there are no defects upon the face of the record upon which said judgment was rendered, and the application was not sufficient in law to justify the grant or issuance of writ, and plaintiff and his attorney had no notice of the granting of the writ. This motion being overruled, motion was made to dismiss on the same grounds.</p>

<p>1. Homestead <&wkey;154 — Abandonment.</p> <p>Abandonment being a question mainly of intent, involuntary or compulsory abandonment of, or absence from, the homestead will not be hold to constitute an abandonment or forfeiture or waiver of homestead rights.</p> <p>On Rehearing.</p> <p>2. Homestead <&wkey;154 — Abandonment—Commitment to Insane Asylum.</p> <p>Under Code 1907, § 4190, as to homestead rights of wife of absconding husband, and Const. 1901, § 205, Code, § 4161, as to deed of homestead, where a husband deserted his wife who, becoming insane, was committed to an asylum, her absence from the homestead because of the commitment was not abandonment thereof so that his deed of the homestead, not signed and separately acknowledged by her, 'passed no title, but the wife was entitled to possession of the property.</p> <p>3. Trusts <&wkey;295 — Property oe Insane Person — Accounting.</p> <p>Where brother held property for his insane sister, deserted by her husband, and after the brother’s death his widow, as his executrix and sole devisee, continued to hold it, the widow would be required to account to the insane woman’s guardian for income and profits received by the brother during his lifetime and by the widow after his death.</p> <p>McClellan and Sayre, JJ., dissenting.</p>

C. Crow, Judge. Action by Frank Barnes against Joseph H. Davies for injuries from an automobile accident. Judgment for plaintiff, and defendant appeals.

Locke, Judge. In Equity. Bill by William Bibby against the Bruce Coal Company and others, for an accounting and discovery. From a decree for complainant, respondents appeal.

Action by J. W. Emfinger against the Seaboard Air Line Railway Company. A judgment for plaintiff was affirmed by the Court of Appeals (77 South. 415), and defendant petitions for certiorari.

Petition by B. S. Davis and another for certiorari to review a judgment of the Court of Appeals (77 South. 413) affirming a judgment against petitioners in favor of E. E. Florey and others.

M. Miller, Judge. Action by J. C. Alverson, administrator of Teddy Alverson, deceased, against the Little Callaba Coal Company for damages for the death of Teddy Alverson. Judgment for defendant, and plaintiff appeals.

<p>Master and Servant ¡&wkey;284(2) — Action eor Injury — Identity oe Master — Question for Jury.</p> <p>Evidence in servant’s action for injury as to identity of the master held insufficient to go to the jury as to one defendant, but sufficient as to the others.</p>

<p>1. Carriers &wkey;>18.9 — Ereigiit Tariffs — Classification.</p> <p>A tank wagon necessary to use with’a traction engine and shipped with the engine, both set up, should be shipped under the same classification as the engine, and it is immaterial that it was not actually attached to the engine during its course of shipment, nor that each could be used without the other, or that there jyas a tank on the engine itself of a limited capacity.</p> <p>2. Carriers &wkey;>189 — Ereigiit Tariffs — Classification — Conduct of Parties.</p> <p>That all parties to a shipment considered a tank wagon as part of a traction" engine, and so treated it, may be considered in determining the proper classification of the tank in regard to freight rates, although such would not control if the classification was clearly unlawful.</p> <p>Somerville, Sayre, and Gardner, JJ., dissenting.</p>

A. Sharpe, Judge. Bill by Kinzea Stone against A. E. Walker, as Superintendent of Banks, and another, to rescind contract of subscription to bank stock. From a decree for respondents, complainant appeals. Application for rehearing overruled; Anderson, C. J., and McClellan, J., dissenting.

<p>1. Master and Servant i&wkey;329 — Injuries to Third Person— Complaint— Sufficiency.</p> <p>In an action for injuries received by plaintiff, a minor, in consequence of a collision between his bicycle on which he was riding and the motorcar of defendant, some counts of the complaint alleged actionable negligence of defendant’s chauffeur in the operation of the car, while others ascribed it to the negligence of the chauffeur in intrusting the operation of the car to another negro, whom he had picked up and who was alleged to be a person inexperienced in the operation of motorcars. However, each' count of the complaint alleged that the person to whom the negligence was ascribed was, at tbe time of tbe injury, the agent and servant of defendant, to whom the operation of the motorcar was then and there intrusted. Held, that the complaint was sufficient to allege that the chauffeur was, at the time of the injury, acting within the scope of his employment.</p> <p>2. Principal and Agent <&wkey;159 — “Scope of Authority” — What is.</p> <p>An act may be within the scope of an agent or servant’s authority, and yet not be in the interest of the master or in the prosecution of the master’s business, the “scope of an agent’s authority” being the extent or sweep thereof, and not limited to acts done in the interest of or in the prosecution of the business of the master.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Scope of Authority.]</p> <p>3. Master and Servant <&wkey;302(6) — Injuries to Third Persons — Liability of Master.</p> <p>The owner of a motorcar is not liable for every injury inflicted .by his driver when operating the car, and to make him liable the driver must bo his agent at the time of the injury, and acting within the scope of his authority; hence, if the driver should steal the car out and use it for joy riding exclusively for his own benefit the owner would not be liable, for the relation of principal and agent would not exist; yet, where the relation of principal and agent actually existed at the time of the injury, and the driver was using- the car for the purpose of bringing the master to Ms place of business, or to his homo, or of returning the machine after so conveying- the owner, the owner would be liable, notwithstanding the driver was using it in a manner contrary to his orders.</p> <p>4. Pleading <&wkey;34(l) — Pleas — Construction.</p> <p>Pleas must be read and construed in connection with the complaint or the counts which they profess to answer.</p> <p>5. Negligence i&wkey;122(6) — Contributory Negligence — Infants—Presumption.</p> <p>A minor under 14 years of age is prima facie incapable of being guilty of contributory negligence, although the presumption is not conclusive; and, when the infant is over 7 years of age, it may be rebutted by proof that his acts were negligent.</p> <p>6. Negligence <&wkey;7 — Care by Infant.</p> <p>A child of tender years has capacity to exercise only such care and self-restraint as belongs to childhood, and reasonable men must govern themselves accordingly; the caution and care required of others towards infants being measured by the age, maturity, capacity, and intelligence of the infant.</p> <p>7. Negligence <&wkey;122(6) — Contributory Negligence — Infant.</p> <p>A child too young to exercise any care or discretion is as incapable of negligence as it is of crime or sin, and not answerable to the doctrine of contributory negligence, so ordinarily there is a conclusive presumption that a child under 7 is not guilty of contributory negligence.</p> <p>8. Negligence <&wkey;85(3) — Contributory Negligence — Infants.</p> <p>Where an action is brought by an infant under 7 to recover damages for personal injuries inflicted' upon it, neither negligence of the infant nor of its parent is available as a defense.</p> <p>9. Negligence <&wkey;95(l) — Contributory Negligence of Parent — Action.</p> <p>Where an action is brought by a parent to recover pecuniary compensation for the death or injury of an infant, contributory negligence of the parent will defeat recovery.</p> <p>10. Negligence <&wkey;85(3) — Contributory Negligence.</p> <p>An infant under 2 years of age is, as a matter of law, incapable of being negligent.</p> <p>11. Negligence &wkey;>85(2) — Contributory Negligence — Presumption.</p> <p>That an infant not 14 years of age is bright, smart, and industrious is not sufficient to overcome the presumption of want of discretion.</p> <p>12. Negligence <&wkey;117 — Contributory Negligence-Plea.</p> <p>Where a complaint alleged that plaintiff, who was run down by defendant’s motorcar, was an infant under 14 years of age, a special plea, alleging that plaintiff at the time of the injury was violating a municipal ordinance, and that fact proximately contributed to his injury, is insufficient to show that the infant was negligent.</p>

C. B. Gwin, Judge. Action by A. J. Littleton against the Birmingham Kailway, Light & Power Company Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911 (Acts 1911, p. 449) § 6. On application for rehearing.

Horton, Jr., Chancellor. Suit by the Cullman Property Company against the I-I. H. Hitt Lumber Company and others. From decree for respondents on demurrer to the bill, complainant appeals.

<p>Appeal and Error &wkey;1022(l) — Findings op Fact by Register — Review.</p> <p>Findings of fact, on evidence largely ore tenus, in the report of a register, confirmed by the chancellor, have the force of a verdict, and will not he reversed, unless clearly erroneous.</p>

W. Ferguson, Judge. Action by B. B. Comer against the Advertiser Company for damages for libel. Judgment for plaintiff for insufficient damages, and he appeals. A statement of the complaint may he found in a report of the former appeal. 172 Ala. 613, 55 South. 195. Plaintiff introduced evidence showing defendant’s publication of the alleged defamatory article in an issue of about 14,000 copies.

C. B. Gwin, Judge. Action by Sam Ross against the Sloss-Sheffield Company, for damages for injuries sustained while in its employment. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Law and. Equity Court, Morgan County; Thomas W. Wert, Judge.</p> <p>Suit by Unity D. Dancy and others against James M. Ratliff and another. From a decree for defendants, complainants appeal.</p>

Circuit Court, Jefferson County; John H. Miller, Judge. Action by J. E. Enqua against the Southern Railway Company, for damages for injury to stock. Judgment for defendant, and plaintiff appealed. The complaint contains two counts, one for negligent injury', and the other for conversion of certain cows alleged to belong to plaintiff.

<p>Appeal from City Court of Talladega.; Marion II. Sims, Judge.</p> <p>Action by Mrs. Maude E. Adams against the Sovereign Camp, Woodmen of the World. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Guaranty &wkey;>85(l) — Complaint —Sufficiency.</p> <p>A seller’s complaint on a guaranty of payment indorsed on purchase-price notes, which set out the guaranty verbatim and alleged that payment was not made at maturity, etc., held sufficient as against a demurrer.</p> <p>2. Evidence t&wkey;119(3) — Res Gesms — Admissibility of Evidence.</p> <p>In a seller’s action on defendant dealer’s guaranty of payment indorsed on purchase-price notes, a contract between the parties, under which the seller delivered the property covered by the notes, held admissible as part of the transaction.</p> <p>3. Frauds, Statute of &wkey;>108(3) — Guaranty of Payment — Consideration.</p> <p>A guaranty of payment on the back of a note containing the expression “For value received” sufficiently expresses the consideration.</p> <p>4. Sales c&wkey;8 — Construction of Contract.</p> <p>A contract between a manufacturer and dealer held to show that the manufacturer sold to the dealer, and not to the ultimate customer, although the dealer could apply the customer’s notes on the purchase price under certain conditions.</p>

J. Curtis, Judge. Action by S. W. Naught against the Benoit Coal Mining Company. Judgment for plaintiff: and defendant appeals. This cause was tried upon count 12 of the complaint, plea of general issue, contributory negligence, and assumption of risk. The questions presented by these issue's were submitted to the jury, resulting in a judgment for the plaintiff (appellee), from which defendant (appellant) prosecutes this appeal.

P. McIntyre, Special Judge. Suit in equity by Estelle Manegold Beaven against Clara J. Manegold and others to impeach a decree for fraud. Nrom decree awarding the relief prayed in the bill as amended, respondents appeal.

W. Haralson, Judge. Bill in equity by tbe Attorney General, in behalf of the State, against W. E. Bradford and others. B’rom an order overruling demurrer to the hill, defendants appeal.

<p>1. Vendor and Purchaser <&wkey;275 — Vendor’s Lien — Broker’s Commission.</p> <p>To enforce a vendor’s lien against purchaser on theory that plaintiffs were to be paid-part of the purchase price as commission for selling the land, the amount agreed to be paid must have been part of the purchase money and the vendor must have so understood.</p> <p>2. Vendor and Purchaser <&wkey;281(3) — Vendor’s Lien — Broker’s Commission.</p> <p>Where complainants, who were agents of vendor but not of defendant, vendee, sold land to defendant for $20 an acre with the understanding that- $5 an acre was to be paid to complainants as their commission, complainants were entitled to enforce a vendor’s lien where defendant failed to prove wherein title was defective, that complainants agreed that defendant was not to be liable if title was not good, or that vendor was insolvent.</p>

<p>Appeal from Circuit Court, Blount County; J. E. Blackwood, Judge.</p> <p>Suit in equity by J. B. Bushard and others against R. L. McCay. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from Circuit. 'Court, Montgomery County; O. S. Lewis, Judge.</p> <p>Suit in equity by Hazard Henry Stay and others against Martha R. E. Henry Stay. From decree for respondent, complainants appeal.</p>

<p>Appeal from Circuit Court, Jefferson County; A. H. Benners, Judge.</p> <p>Bill by Henry M. Dozier and others against Bessie Duy Dozier. • Judgment for complainants, and defendant appeals.</p>

<p>Appeal from Circuit Court, Jefferson County;. John C. Pugh, Judge.</p> <p>Action, by Annie G. Estes against the Jenkins Taxicab Company. Judgment for plaintiff, and defendant appeals.</p>

W. Eerguson, Judge. Action by J. M. Hambright against the Birmingham Railway, Light & Power Company, for damages. Judgment for defendant, and plaintiff appeals. The first count charges simple negligence in running a car against plaintiff who was in the act of crossing the track in a wagon. The second count charges subsequent negligence, and the third count' charges wanton negligence. Defendant filed 10 pleas, the general issue, and other pleas of contributory negligence.

<p>Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.</p> <p>Ejectment by G. F. Gibson against Frankie Pettit and others. From a judgment for plaintiff, defendants appeal.</p> <p>Plaintiff offered deed of W. H. Norwood, commissioner, to plaintiff, of date January 13, 1916, made in pursuance of an attempted sale of said lands for division, and conveying the same to plaintiff. Objection was interposed as stated in the opinion. It is admitted that Dudley, the other defendant, was in possession of the land by permission of Frankie Pettit. It is admitted that the land was at one time the land of Thomas Pettit, who died intestate, leaving surviving him' his widow, S. A. Pettit, Thomas Pettit, Jr., Mrs. G. F. Gibson, and five other children, as the only heirs at law, and that lands were occupied by him as a homestead; that ThomasPettit, Jr., married Frankie Pettit, and that Thomas Pettit lived with his father and mother, and after his father died continued to live with his mother on the land, and to-care for and support her until she died in 1913, and that he continued to live on, the land until he died in May, 1913, and that after he died his widow, Frankie Pettit, and their five minor children, continued to live on the land until the present time; that in 1901, Ms mother, and the brothers and sisters made Thomas Pettit a deed to the laud, which deed was introduced in evidence, and which is mentioned in the opinion as conveying the land by government subdivision, and known as the home place of the late Thomas Pettit, deceased. The other facts sufficiently appear.</p>

<p>Appeal from City Court of Birmingham; H. A. Sharpe, Judge.</p> <p>Action by the Jefferson County Savings Bank against J. C. Carland & Co. From a judgment for defendant, plaintiff appeals.</p>

H. Benners, Chancellor. Bill by the Birmingham Packing Company against the Birmingham Belt Railroad Company. Fl-om a decree sustaining demurrers to the bill, complainant appeals.

Miller, Judge. Suit by Hattie C. Wilkerson against J. Iv. Sorsby and others. Prom a judgment for defendants', plaintiff appeals. Hattie C. Wilkerson, formerly Hattie E. Cash, and her husband, John W. Cash, executed two mortgages in the year 1905 on certain real estate situated in Jefferson county to the King Lumber Company. The husband, John W. Cash, died in January, 1906.

<p>1. Mortgages &wkey;>l54(l) — Mortgagees as Bona Fide Holders for Value.</p> <p>Where banks which took a mortgage on lands from the purchasers thereof had actual notice of the existence of mortgage thereon executed by the sellers, such banks were not bona fide holders for value without notice.</p> <p>2. Novation <&wkey;l — Essentials — Substitution of New Mortgage for Old.</p> <p>To effect a novation, as when the mortgagee of land accepts a new note and mortgage executed by purchasers from the mortgagors, there must be: First, a previous valid obligation; second, an agreement of all parties to the new contract or obligation; third, an agreement that the transaction should bo an extinguishment of the old contract; and, fourth, the new contract or obligation must be valid between the parties.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Novation.]</p> <p>3. Principal and Agent <&wkey;105(9) — Authority to Collect Note and Mortgage — Col-' lection in Money.</p> <p>Had a mortgagee’s agent been authorized by her to collect from the mortgagors the note and mortgage, Be could ha ve done so only in money, and not by way of novation and substitution of a new mortgage, or obligation of the purchasers of the land from the mortgagors, in place of the old mortgage, the primary obligation of the mortgagors.</p>

Bill in equity by Mary W. Barrington against R. L. Barrington, for divorce. From a decree permitting amendments to the bill, and overruling demurrer to the amended bill, respondent appeals.

P. Stiles, Judge. Petition of Nettie Garrett for the removal of E. J. Harrison and another as administrators of the estate of Will Garrett, deceased. Prom a decree sustaining demurrers to the ■petition, petitioner apipeals.

A bill to set aside a will by one alleging a contract with testator to make a will in his favor, alleging that the property was given to the widow and another, was not wanting in equity as to the part of the personalty bequeathed to the second legatee. Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge. , Bill in equity by Eunice H. Mayfield, to set aside a will, and to invest complainant with the property therein conveyed.

Petition by J. A. Sellers for intervention and to be declared a preferred creditor of the Clanton Bank. From the decree rendered, A. E. Walker, the Superintendent of Banks, appeals.

H. Benners, Chancellor. Bill by Mrs. M. R. Hassell against John D. Hassell and. others, to set aside and annul a conveyance. From a decree for complainant, respondents appeal. The bill is filed by Mrs. Hassell setting aside a conveyance of land and release of debt made and given by complainant to her son John D. Hassell.

<p>Appeal from Chancery Court, Jefferson County; A. H. Benners, Chancellor.</p> <p>'Suit by Charles K. Duncan, trustee, against Carrie F. Lum and others. Decree for defendants, and plaintiff appeals.</p>

B. Smith, Judge. Action by R. T. Cole against the Alabama Great Southern Railroad Company. From judgment for defendant, plaintiff appeals.

Miller, Judge. Action by Clyde Douglas Caddell -by next friend, against W. A. Denson, in assumpsit. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

I-I. Benners, Chancellor. Suit by J. G. Farley against J. F. Baldwin and others. From a decree for defendants, complainant appeals.

Russell Robertson was convicted in the municipal court of violating an ordinance of the city of Montgomery by having in his possession a quart or less of whisky in receptacles of capacities less than a quart, and, being again convicted on appeal to the circuit court, he again appeals. Transferred from iCourt of Appeals under section 6, p. 450, Acts 1911.

<p>Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.</p> <p>Bill iu equity to quiet title by G. W. Yancey, trustee, against the Sloss-Sheffield Steel & Iron Company. Decree for plaintiff, and defendant appeals.</p>

W. Ferguson, Judge. Action by John C. Narramore against Peter Monte for damages occasioned by being struck by an automobile. Judgment for defendant was set aside on motion, and new trial ordered, and defendant appeals.

W. Haralson, Judge. Action by Charles W. McGuire against the J. I. Case Threshing Machine Company for the penalty for a failure to satisfy a record of a mortgage. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. The complaint is in two counts, setting up the several breaches of the statutory duty with respect to each of two distinct mortgages, and is brought under section 4898, Code 1907.

<p>1. Insane Persons <&wkey;66 — Setting Aside Conveyance — Mental Disability — “Unsound Mind.”</p> <p>In an action by a guardian to set aside a conveyance to his ward on the ground of mental infirmity, a petition, charging that the ward was a feeble-minded ignorant negro, but yet capable of making a valid contract if not dis-affirmed, and that lie was oí unsound mind, was insufficient to support a judgment; the phrase “unsound mind” being of elastic significance, and not sufficient to show such insanity as would justify disaffirmance of the contract, and there being evidence that the property was worth the price for which it was sold.</p> <p>[Ed. Note.' — For other definitions, see Words and Phrases, First and Second Series, Unsound Mind.]</p> <p>2. Insane Persons <&wkey;66 — Setting Aside Conveyance — Evidence</p> <p>In a suit to set aside a conveyance on the ground of mental unsoundness, the fact that the grantee was found by the probate court to be of unsound mind three months after the transaction was consummated was insufficient to support a judgment disaffirming the contract.</p>

<p>1. Trial &wkey;>252(6) — Instructions — Conformity with Issues.</p> <p>In action for assault and false imprisonment of plaintiff, while he was trespassing, in the absence of evidence that plaintiff’s companion told him that the land was posted, and trespassing thereon was prohibited, an instruction on trespassing, predicated on the companion having so told plaintiff, was properly refused.</p> <p>2. Arrest <&wkey;G4 — Without Warrant — Malicious Trespassing — “Public Offense.”</p> <p>If one willfully trespassed on another’s land and picked blackberries thereon' with malicious intent, lie was guilty of a public offense, under Act 1911, p. 625, defining malicious trespassing, and under Code 1907, § 6273, permitting an arrest without warrant for public offense committed in the sight of a private person, he might properly be arrested by a watchman, employed by the owner of the land.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Public Offense.]</p> <p>3. Trespass <&wkey;81 — Criminal Liability-Warning.</p> <p>A person’s mere wrongful presence on the premises of another, and his wrongful picking of berries thereon, did not justify his arrest, unless followed by refusal to leave after warning.</p> <p>4. Trial <&wkey;45(l) — Offer of Proof — Including Immaterial Matters.</p> <p>In action for false imprisonment caused by a servant of defendant, offer to show that the servant was himself arrested on complaint of plaintiff, and that ho was tried and acquitted, was bad, it being immaterial whether he was tried and acquitted, so that the whole offer was vitiated.</p> <p>5. Evidence <&wkey;151(3) — Reason for Action.</p> <p>In action for false imprisonment and assault by a watchman, the watchman could not state his reason for carrying a pistol, nor the independent fact that two previous watchmen had been shot.</p> <p>6. False Imprisonment &wkey;>27 — Evidence-Admissibility.</p> <p>In action for false imprisonment when plaintiff was arrested for trespassing,' evidence that he was tried before a jury for trespassing was properly excluded.</p>

<p>1. Mortgages <&wkey;>186(2) — Accounting—Redemption— Sufficiency oe Bill.</p> <p>Bill by a second mortgagee, against the mortgagor and the first mortgagee, before foreclosure, to give the second mortgagee’s mortgage precedence, upon the theory that the first mortgagee had consented for valuable consideration to subordinate his mortgage, held to authorize an accounting and redemption, relief obtainable under the general prayer.</p> <p>2. Mortgages <&wkey;186(l) — Bill to Give Second Mortgage Precedence — Proper Party.</p> <p>One who acted for a first mortgagee in agreeing with the second mortgagee to give the latter’s mortgage precedence over the first was a proper, if not necessary, party to suit by the second mortgagee against the mortgagor and the first mortgagee before foreclosure to give the second mortgage precedence.</p>

<p>Licenses <§^11(1) — Oorporatiqns—Reporting upon Oredit.</p> <p>Defendant corporation was organized to inquire into and report upon the credit of persons in the state. It was paid annually sums by the various members for the purpose, and has furnished reports as to the standing of persons both within and without the city of Montgomery. Held, that defendant was within Code 1907, §• 2361, subd. 22, and Acts 1915, p. 499, § 1, subd. 31 requiring a license of corporations inquiring into and reporting upon the credit and stand-1 ing of persons in the state; that the members received no dividends not removing defendant from the effect of the statute. i</p>

Miller, Judge. Assumpsit by A. H. McCormick against Henry L. Badham. Judgment for defendant, and plaintiff appeals.

<p>Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.</p> <p>Action in equity by Howell W. Slaughter and others against Mrs. E. O. Hall and others to quiet title. Judgment for defendants, and plaintiffs appeal.</p>

C. Crow, Judge. Action by A. Eubanks against J. W. Dliller for breach of agreement. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6.

<p>1. Homestead <&wkey;151 —Right of Widow — Statute,.</p> <p>If the 20 acres in contest in a widow’s action of statutory ejectment did not constitute a part of her husband’s homestead when he died, or if his homestead consisted of the 20 acres, together with another 60 acres, and the 80 acres thus comprising the husband’s homestead when he died was worth more than $2,000, Code 1896, § 2071, in effect when the husband died, did not automatically vest in the widow the absolute fee in the 20 acres, since by the statute the homestead must have constituted all the real estate owned in the state by decedent at the time of his death.</p> <p>2. Homestead &wkey;>32 — Actual Occupancy.</p> <p>Actual occupancy, except in the single instance of temporary absence, for which the statutes prescribe a preservative remedy, is essential to the constitution and retention of a homestead.</p> <p>3. Homestead <&wkey;161 — Abandonment—Occupancy.</p> <p>Abandonment of an area of land in whole or in part as a homestead, so as to remove therefrom the impression of the homestead character, is determinable by the occupancy as one of the factors in the inquiry.</p> <p>4. Homestead &wkey;>181% — Abandonment — Question for Jury.</p> <p>The question of decedent’s intentional abandonment of 20 acres of agricultural land as part of his homestead because he ceased to cultivate it, mistakenly'thinking that he had lost title by sale for taxes, was a question for the jury, if it found that decedent in fact abandoned the use of the 20 acres as a source of support for his family.</p> <p>5. Homestead <&wkey;57(l) — Homestead Character oe Land — Burden of Proof.</p> <p>In a widow’s action of statutory ejectment to recover 20 acres as her husband’s homestead, the burden of establishing the affirmative of the two issues involving the homestead character of the 20 acres in question was on the widow.</p> <p>6. Homestead &wkey;>181% — Question for Jury.</p> <p>In a widow’s action of statutory ejectment to recover 20 acres as her husband’s homestead, charges whereby plaintiff sought to have the court instruct that under the evidence decedent had not abandoned the 20 acres as a part" of his homestead were properly refused as invading the jury’s province on an issue to be submitted to them.</p> <p>7. Evidence <&wkey;269(2) — Declarations of Decedent as Evidence of Intention.</p> <p>In a widow’s action of statutory ejectment to recover 20 acres as a homestead, what was the intention of her deceased husband with reference to the homestead character of the 20 acres, and whether he had abandoned it as part of his homestead, were inquiries upon which his statements when disclosing his intention might be shown.</p> <p>8. Appeal and Error <&wkey;233(2) — Reservation of Grounds of Review — Objection to Evidence.</p> <p>In a widow’s action of statutory ejectment to recover 20 acres as a homestead, where no objection was made to the reception in evidence when offered of a paper purporting to be a petition in probate filed by the widow, the previous objection of plaintiff to her examination in reference to the petition on the ground that it was illegal, immaterial, and incompetent was ineffectual to reserve the inadmissibility of the paper for review in the Supreme Court.</p> <p>9. Witnesses c&wkey; 140(7) — Competency— Statements oe Decedents.</p> <p>Where a decedent’s estate could not have been affected financially or otherwise by any judgment in the widow’s action of statutory ejectment to recover 20 acres as a homestead, decedent’s son, defendant, was not incompetent, under Code 1907, § 4007, to testify to statements by his father with reference to the land in controversy.</p>

<p>Appeal from Circuit' Court, Chilton County; Leon McCord, Judge.</p> <p>Suit in equity by J. H. Carter against D. O. Manning. From the decree rendered, Manning appeals.</p>

Leigh, Jr., Judge. Bill by W. H. Kemp against A. J. Davis and another, to fasten the lien or for an injunction. From a decree overruling demurrers to the bill, respondents appeal.

Disque, Judge. Assumpsit by the J. C. Lysle Milling Company against the North Alabama Grocery Company. Judgment for 'defendant, and plaintiff appeals. The following are the pleas: 3.

J. Curtis, Judge. Bill in equity by G. S. Douglas and others against Queenie Bishop. Decree sustaining demurrers to bill, and complainants appeal. This bill was filed by the appellants against the appellee to have canceled and set aside a decree of the probate court of Walker county, setting aside to the respondent in the court below certain lands therein described, consisting of 160 acres, as a homestead.

Injunction by tbe State against tbe T. J. Mattox Cigar & Tobacco Company. Prom an order dissolving tbe temporary injunction and dismissing tbe bill, tbe State appeals.

Bill in equity by the State of Alabama against the Advertiser Company, to enjoin the publication of a certain advertisement. Erom a decree sustaining demurrers to the bill, complainant appeals.

Action by I. C. Ewing against the Barbour Plumbing, Heating & Electric Company. On application of defendant for writ of certiorari to review judgment of the Court of Appeals (77 South. 430) affirming judgment for plaintiff.

<p>'Appeal from City Court of Birmingham; H. A. Sharpe, Judge.</p> <p>Suit by T. C. McDonald against George B. Ward and others. Erom an order granting a preliminary injunction, defendants appeal.</p> <p>The appeal in this cause is from an order granting a preliminary injunction. The bill was filed by the appellee, as a resident taxpayer of the city of Birmingham, against the commissioners of said city, and sought an injunction against the city to prevent the issuance of" $3,000,000 of bonds, and also the diversion of the special tax of one-hálf of 1 per centum, which Birmingham is empowered to levy under section 216 of the Constitution, and an accounting as to the amount of the sinking fund directed to be accumulated by that section out of the proceeds of such special tax — not necessary to pay the interest on the bonds, to pay which under that section such special tax might be used. The substance of the bill as amended is as follows:</p> <p>The city of Birmingham has outstanding bonded • indebtedness approximating the sum of $7,110,000, exclusive of the bonds issued by said city for street and similar improvements. The interest charges on said outstanding bonds of approximately $7,110,000 approximates the sum of $369,000 per annum. The outstanding bonds of approximately $7,110,-000 include the outstanding bonds of the various municipalities which have been absorbed in the municipality of the city of Birmingham — said assumed bonds amounting to $1,320,000. Of the outstanding bonds solely of the city of Birmingham approximately $2,160,000, face value thereof, were issued prior to the adoption of the Constitution of 1901; the annual interest charges being approximately $121,500.</p> <p>In addition to the above-mentioned bonded indebtedness, at an election held on June 5, 1916, the electors of the city of Birmingham authorized the issuance of bonds in the sum of $2,000,000 for the purpose of acquiring school property, in the sum of $500,000 for the purpose of acquiring an auditorium, and $500,000 for the purpose of acquiring an electric light and power plant; said bonds to be issued at an annual rate of interest of 4% per cent.</p> <p>The revenues of the city, except for small sums, acquired by it from fines and forfeitures, are derived from taxation. The taxes consist of an annual tax of 1 per cent, on the real and personal property in the city subject to taxation, and from licenses. Of the tax of 1 per cent, above referred to, one-half of 1 per cent, is levied for the general purposes of the city, and the other one-half of 1 per centum is levied pursuant to section 216 of the Constitution, which provides, among other things:</p> <p>That “such special tax to be applied exclusively to the payment of interest on bonds of said cities of Birmingham, Huntsville and Bessemer, and the town of Andalusia, respectively, heretofore issued in pursuance of law, or now authorized by law to be issued, and for a sinking fund to pay off said bonds at the maturity thereof.”</p> <p>That, although the taxes had been levied and collected for the purposes for which they might be levied and collected, the commissioners of the city of Birmingham have from time to time used the proceeds of such one!half of 1 per centum for the purpose of paying interest on bonds of the city, regardless of whether such .bonds were issued before or since the adoption of the Constitution of 1901. At the time of the adoption of the Constitution of 1901, there had been enacted an act entitled “An act to authorize the city of Birmingham * * * to buy, build, di■rect and own, maintain and operate waterworks for the supifiy of said city * * * and to issue and sell, or exchange said bonds for said purposes,” approved February 23, 1899 (found in the Local Laws of Jefferson County, p, 259), and which said act authorized the issuance of the $1,000,000 of bonds. It is averred that the bonds authorized to be issued by said act have in fact never been issued. That the general revenues of the city exclusive of those derived from the said one-half of 1 per centum just referred to are not sufficient to pay the ordinary expenses of the city, including the interest on its bonds; and also including the interest on the $3,000,000 of bonds above referred to as having been authorized by the election of June 5, 1916.</p> <p>It is also averred: That the defendants do not expect and propose to pay the interest on the bonds to be issued for the purpose of acquiring an electric light plant and an auditorium out of the revenues to be derived from the operation of the same, but they threaten and propose to pay the interest on such bonds, as well as the interest on the said $2,000,000 of -bonds to be issued for the purpose of acquiring school property, out of the special tax of one-half of 1 per centum, authorized by section 216 of the Constitution for the special purposes therein provided; and, in so proposing, the defendants propose to thwart the plain mandates of the Constitution, of the state, and to divert the revenues derived from taxation to purposes for which the collection of such revenues were unauthorized. There is no source from which the interest on said $3,000,000 of bonds can be derived, except from the proceeds of such special tax. That the defendants propose to issue the $3,000,000 of bonds, as voted on June 5, 1916, and will do so unless restrained by the injunctive 'process of this court. It is further averred that they propose to assert and represent to the prospective purchasers of such bonds that the interest thereon will be paid out of the proceeds of such special tax above referred to, and that, if negotiated and sold, such bonds will be bought by the purchasers thereof relying upon the expectation that the interest thereon will be paid out of such special tax, and that they will claim, if, as a fact, the interest cannot be so paid out of such taxes legally, that nevertheless the city and the taxpayers are estopped from contending that such special tax cannot he used for such special purposes; that said bonds will be neb gotiable, and orator will have no practical means of preventing the payment of interest on said bonds out of such special tax. The bill further charges that such diversion of said special tax of one-half of 1 per centum constitutes a wrong on the part of defendants, to remedy which complainant has-no adequate remedy at law, and as against which he is entitled to injunctive process.</p> <p>The answer admits the averments of paragraphs 1 and 2 of the bill. It is also admitted that the revenues of the city are derived mainly from taxation — as alleged in paragraph 3 of the bill — and from licenses; that the tax of one,-half of 1 per centum is levied pursuant to section 216 of the Constitution, but it is denied that all of the pertinent provisions of said section are quoted. It is further denied that said special tax is levied under the exclusive authority of said section 216, but, on the contrary, said additional tax of one-half of 1 per centum is authorized to be levied, and is levied in fact,, under the provisions of an act of the Legislature entitled “An act to establish a new charter for the city of Birmingham, Alabama,” approved February 23, 1899. Loc. Laws 1898-99, p. 1391.</p> <p>It is admitted that the commissioners of the city of Birmingham have used the proceeds of such tax of one-half of 1 per centum from time to'time for the purpose of paying interest on bonds of the city, regardless of whether such bonds were issued before or since the adoption of the Constitution of 1901, and that this practice has been continuously indulged in by each administration since the enactment of the above-mentioned statute, and that the practice is a lawful one.</p> <p>It is further averred that the general revenues of the city, exclusive of such special tax, are not sufficient to pay the ordinary expenses of the municipality, including, the interest on its bonds issued since the adoption of the Constitution of 1901, and also insufficient to pay such expenses and interest on bonds issued since 1901 including the interest on the $3,000,000 of bonds authorized by the election of June 5, 1916. The answer then avers that it is not true the respondents are under any obligation, in law or fact, to apply the revenues derived from the special tax of one-half of 1 per centum exclusively to the payment of the interest upon and the creation of a sinking fund for the benefit of the bonds issued prior to the adoption of the Constitution of 1901; but, on the contrary, it is lawful and proper to apply the proceeds of such special tax to the payment of the interest on bonds issued since the adoption of the Constitution of 1901, as well as prior thereto; and in so using the proceeds of said tax, the general revenues of the city will be sufficient to pay the ordinary expenses of the municipality, and the proceeds of such special tax will be sufficient to,pay the interest upon the $3,000,000 of bonds authorized by the election of June 5, 1916.</p> <p>It is also averred that the respondents expect the proceeds from the light plant and the auditorium to make the same self-sustaining, and to pay the interest on these bonds out of the operative revenues derived therefrom, but that respondents contemplate the payment of the interest on the $2,000,000 of bonds to be issued for school purposes out of the special tax of one-half of 1 per centum above referred to, which it is claimed is lawful and right. It is then averred that the validity of said bond issues authorized by the election of June 5, 1916, is not affected by the som-ce from which it is expected that the interest thereon will be paid, and that, so far as the legality of said issues are concerned, it is immaterial from what portion of its revenues the interest will be paid; and, further, that said bonds having been duly authorized by the vote of the people will be a binding obligation to the city, and will be lawful; that complainant is without right to challenge the validity of said issues upon such hypothesis, as set up in the bill.</p> <p>The answer further discloses that at the present time the revenue of the city is sufficient to meet its current expenses, but that prior to .September 30, 1916, the current revenue was not sufficient and had not been for many years; that on September 30, 1911, there was an issuance of $1,000,000 of bonds to meet a portion of the current expenses of the city in excess of its revenues theretofore incurred. Said deficit was not incurred for a single year, but represented an accumulation of deficits for a series of years. On July 1, 1915, bond issues aggregating $1,250,-000 were necessary to be issued for a like purpose.</p> <p>It is further averred that by an act approved August 28, 1915 (Acts 1915, p. 320) the governing authorities of the city of Birmingham were required to adopt a budget out of the estimated receipts and expenditures of the city for the year, and that, in compliance therewith, the authorities did adopt a budget of the estimated receipts and expenditures for the current year, and have conducted the affairs of the city within such estimated receipts. But to accomplish this end, it has become necessary to restrict and limit appropriations for public health, to withdraw all direct appropriations for charity, reduce appropriations for police and fire protection, and numerous other matters — not necessary to further enumerate — including public school systems.</p> <p>It is admitted' that the city has collected the special tax of one-half of 1 per centum since the year 1899, but it is denied that the amount collected has been sufficient to pay the interest on all bonds outstanding prior to the adoption of the Constitution, as well as provide a sinking fund sufficient to pay in full the bonds of the city issued prior to the adoption of the Constitution of 1901. It is further denied that it is no longer necessary to levy and collect such special tax.</p> <p>In paragraph 8 it is averred that on the 16th of February, 1897 (see Laws 1896-97, p. 1202), the Legislature submitted to the vote of the people a proposed amendment to the Constitution known as the Birmingham Amendment, and set out in the opinion. Said amendment was voted on in August, 1S98, carried by the people, and immediately proclaimed to be adopted by the Governor, from which time the same became a part of the Constitution. It is then averred that on February 23, 1899 (Loc. Laws 1898-99, p. 1391), the Legislature interpreted this constitutional amendment in an act putting the same into effect — the pertinent provisions of which appear in the opinion. In pursuance of such interpretation by the Legislature, the mayor and board of aldermen of the city of Birmingham, who then constituted its legal authorities, on July 25, 1900, and August 25, 1900, issued bonds for the purpose of funding past-due coupons to the amount of $269,000, bearing interest at the rate of 5 per cent, per annum. And, in like manner, in pursuance to the same authority, numerous bonds were issued which are enumerated in said paragraph 8. It is then averred that the said authorities of the city of Birmingham had levied and collected said special tax, and applied the same indiscriminately to the payment of interest upon bonds issued after the adoption of the amendment of 1898, as well as to the payment of the interest on bonds issued prior thereto; that with full knowledge of the enactment of the act of the Legislature of 1899, and of the issuance of the bonds thereunder, and of the practice of the city in paying the interest on said bonds issued subsequent to the adoption of said amendment to said Constitution, as well as to the payment of interest on bonds issued prior thereto, the constitutional convention of 1901 did re-enact and readopt the provisions of the amendment of 189S without change, except as hereinafter referred to; that the practical effect of the re-enactment of the amendment of 1898 by the constitutional convention of 1901, after the practical construction thereof by the act of the Legislature on February 23, 1899, and by the administrative officials of Birmingham charged with the enforcement thereof, was in law and in fact an approval of and a ratification of the interpretation so placed upon the amendment by the Legislature and by such administrative officials.</p> <p>It is then averred that the only material change by the provisions of the Constitution of 1901 ,in the amendment of 1898 was by the insertion of the words “or now authorized by-law to be issued”; and that the convention intended by the use of such additional words to strengthen and confirm the interpretation placed thereon by the Legislature, as above referred to. In paragraph 9 it is averred that, without reference to the express language of the' amendment of 1898, the quoted provisions of section 216 of the Constitution ■ of 1901, when considered in connection with other provisions of the same section and all other sections of the same Constitution, expressly authorize and validate the practice indulged in by this and all preceding administrations of the city since the adoption of said Constitution, .in the matter of paying interest on the bonds thereafter issued out of such special tax; and that the language “or now authorized by law to be issued” had reference to the bonds not merely authorized by act of the Legislature prior thereto, but also to bonds authorized to be issued by sections 222, 223, and 225 of the Constitution.</p> <p>The answer then quotes section 225 of the Constitution, and it is averred that, by said constitutional provision, the city of Birmingham was authorized to become indebted not exceeding 7 per cent, of the assessed valuation of the property therein, exclusive of temporary loans or obligations already is-, sued for the purpose of acquiring schoolhouses, waterworks and sewage; and that the authorized additional tax of od e-half of 1 per centum was used for the purposes as therein stated, and for bonds then authorized by law, including debts in the form of bonds authorized to be incurred by the provisions of section 225 of the Constitution.</p> <p>It is then averred that since the adoption of the Constitution of 1901, each succeeding administration has, through its executive officers, construed the Constitution so as to authorize and permit the payment of interest out of said special tax on bonds issued since that date. Then follows an enumeration of the bonds issued by the city since 1901— the interest on which was paid out of said special tax.</p> <p>Section 11 has reference to the municipalities which were by legislative enactment allowed to be annexed to the city of Birmingham, and the special taxes and debts in relation to said city, all of which are without any bearing on the result here.</p> <p>As an amendment to the answer, respondents have filed paragraph 9%, in which the act of February 23, 1899, is again referred to. It is averred that by said act the city of Birmingham was authorized and required to carry on certain works of public improvement which required a large expenditure of money, and to discharge which the provisions made by the Constitution and laws of Alabama for raising money by taxation were entirely inadequate and insufficient, and that it would be impossible to carry out the powers conferred, or discharge the duties imposed uncler the charter, without borrowing money for the purpose of paying for the cost of real estate, buildings, and improvements — • some of which the city of Birmingham under its charter was authorized to provide for public purposes. Then is enumerated the various duties of the city, and its varying authorities in regard to public health, schools, streets, and the exercise of the power of eminent domain, which need not be here set out. It is then averred that by said charter, the city was authorized to issue bonds to pay off any outstanding coupons of the municipality .(an enumeration of the bonds of the city then outstanding is attached as an exhibit to the answer). It is further alleged that- the power of the city to borrow money for the purpose of paying for the costs of improvements contemplated by the charter was implied from the express powers granted by said charter, for the reason that the ordinary revenues wei'e insufficient to furnish the necessary funds to carry out the imposed powers, and discharge said duties, and that neither said powers nor said duties could be discharged without borrowing money; that the city had a right under the act of 1'899, and the Constitution of 1901, to issue bonds to secure the repayment of money so% borrowed for such purposes, and that the implied power to borrow money and issue bonds furnishes complete and ample authority for the issuance of all additional bonds by the city subsequent to the adoption of the Constitution of 1901; and that the bonds issued since the adoption of the Constitution of 1901 were, as shown by Exhibit A, bonds which were authorized to be issued within the meaning of section 216 of the Constitution. It is further averred that all bonds issued pursuant to the charter powers, in connection with specific legislative authority enacted prior to January, 1901, are plainly within the protection afforded by section 216 of the Constitution. Respondents aver that the following issues of bonds were not only authorized by the provisions of said charter, including the act of February 25, 1903 (Laws 1903, p. 59), but also the general bonding acts of 1909 (Laws 1909, p. 188) and 1915 (Laws 1915, p. 110) furnish additional machinery for securing the vote of the people for the issuance of the bonds subsequent to the adoption of the Constitution. Then follows an enumeration of bonds issued in .the years 1904, 1906, and 1908. The answer then discloses that in the year 1909 bonds to the amount of $350,000 were issued for the purpose of building schools, the issuance of which were absolutely necessary in order to provide the money therefor; that in the year 1910, $400,000 of bonds were issued, after the same had been authorized by a vote of the people, for the purpose of paying off the floating debt of the municipalities annexed to the city of Birmingham. Numerous other issuances of bonds are then enumerated, which need not be here set forth.</p> <p>Upon submission of the cause on motion of complainant for a preliminary injunction, the court below denied the injunction as to the issuance of the bonds of $3,000,000 authorized by the vote of the people on June 5, 1916, but granted relief as to the use of the proceeds of the special tax of one-half of 1 per centum authorized by section 216 of the Constitution. The portion of the decree which forms the basis of this appeal recites as follows:</p> <p>“It is further ordered that upon the complainant entering into bond in the sum of $5,000 conditioned as required by law, and with the sureties to be approved by the clerk and register of this court, the clerk and register of this court shall issue a writ of injunction restraining and enjoining the respondents, until the further orders of this court, from using any portion of the taxes collected by the city of Birmingham from the special tax of one-half of 1 per centum which it is authorized to levy and collect by section 216 of the Constitution, otherwise than for the payment of the interest on bonds of the city of Birmingham issued prior to the adoption of the Constitution of 1901, and such as were then expressly authorized to be issued by some act or acts of the Legislature or the General Assembly of Alabama, including bonds heretofore issued and bonds which may hereafter be issued to procure means to pay for street and sidewalk improvements and sanitary or storm water sewers, the cost of which has been or may hereafter be assessed in whole or in part against the property abutting said improvements, or drained by such sanitary or storm water sowers, and for a sinking fund to pay off such bonds at the maturity thereof, and for the payment of interest on, and for a sinking fund for, any bonds which have been or which may hereafter be issued for the purpose of funding or refunding any bonds hereinabove mentioned as bonds to which such special tax may be applied: Provided that such part of such special tax as has been or may hereafter be levied and collected from property situated within what were the cox-p orate limits of the towns of Ensley, Pratt City, Wylam, Avondale and Woodlawn, at the time of their consolidation with or annexation to the city of Birmingham, may be applied to the purposes stated in the call for the special elections held by said towns for the purpose of ascertaining whether said tax should be levied.”</p> <p>This cause was submitted with. three copies of the record under new rule 46 (178 Ala. xix, 65 South, vii).</p>

Locke, Judge. Bill in equity by T. C. McDonald against George B. Ward and others. From a decree dismissing the bill, complainant appeals. Held: and a majority vote cast in favor of the issuance of said bonds.

C. Brickell, Judge. In Equity. Suit by Nannie R. Walker and others against Sarah E. Jordan and others. From a judgment for plaintiffs, defendants appeal.

B. Smith, Judge. Suit by Mrs. Fannie Edwards against the City of Birmingham and others. Judgment, for unnamed defendants and for plaintiff against the City, and the City appeals.

<p>1. Judgment c&wkey;719 — Conclusiveness—Matters Concluded.</p> <p>The principle upon which judgments are held conclusive upon the parties requires that the ruling should apply only to matters directly in issue — things material and traversable— and not to everything which was incidentally brought into the controversy during the trial.</p> <p>2. Judgment <&wkey;634 — Conclusiveness—Merits of Case.</p> <p>To support a plea of res ad judicata, not only must the parties and the subject-matter be the same, but the judgment in the first case must have been on the merits of the case, and must be that sought to be pleaded in bar in the second suit.</p> <p>3. Judgment <&wkey;735 — Conclusiveness—Identity of Issues.</p> <p>Where the assignee of a note sued the maker in one action for the face of the note, attorney’s fees, and costs, and brought another action against an indorser for the same items and secured judgment for all of them against the maker with full satisfaction, such judgment was res adjudicata as to all matters except as to costs in the second action.</p> <p>4. Bills and Notes <&wkey;460 — Joinder of Defendants — Common Law.</p> <p>At common law the holder of a negotiable instrument may proceed concurrently, in separate suits, against the respective parties liable, until the. debt is satisfied.</p> <p>5. Bills and Notes <&wkey;460 — Joinder of Defendants.</p> <p>Under our statute a joint action against the maker and the indorser of a promissory note cannot be maintained, since the obligation of each is several, and the liability of each is dependent upon different conditions.</p> <p>C. Costs <&wkey;43 — Liability—Effect of Payment.</p> <p>A general rule attendant upon the payment or satisfaction of the debt is that, when occurring after commencement of action, it will not relieve the defendant of liability for costs incurred up to that time.</p> <p>7. Payment <&wkey;60(l) — Pleading.</p> <p>In pleading payment, it should be averred whether the payment was before or after the bringing of the action, since the first avoids all liability, while the second avoids liability, except for costs accruing, prior to the payment.</p> <p>8. Costs <&wkey;172 — Actions—Attorney’s Fees.</p> <p>The reasonable attorney’s fees under the contract of the maker and indorser of a note to pay such fees, if recoverable at all, are recoverable as a part of the contractual obligation, and not as a part of the costs.</p> <p>9. Costs &wkey;>172 — Attorney Fees — Liability of Indorsers.</p> <p>Where the assignee of a note sued the maker in one action and an indorser in another action for the face of the note, costs, and attorney’s fees, and in the action against the maker got judgment, which was paid before the trial of the action against the indorser, it was error to allow attorney’s fees and costs against the indorser, but costs should have been allowed only to the time of payment of the judgment in the other action, in view of Code 1907, §§ 5068, 5069, providing how liability on a note may bo discharged.</p>

County; John, H. Disque, Judge. Action by William Chandler against Charles West and Lee Friebaum. From a judgment for plaintiff, defendants appeal. Statutory hction in the nature of ejectment, brought by appellee against the appellants before the court without a jury, and resulting in a judgment for the plaintiff, from which the defendants prosecute this appeal.

Petition in equity by Susie H. Youngblood, formerly Susie H. Howard, to set aside and hold for naught the decree of August 11, 1916, giving the custody and control of petitioner’s minor daughter to Mary L. McDaniel. From a decree setting aside and declaring null and void the former decree, Mary McDaniel appeals.

<p>1. Master and Servant <&wkey;332(l) — Automobiles — Pedestrian — Identity of Car — Question for Jury.</p> <p>In an action for death of child, evidence held sufficient to take to the jury the question as to the identity of the automobile that ran down the child.</p> <p>2. Master and Servant &wkey;>300 — Injuries to Third Persons — Respondeat Superior.</p> <p>Where liability is sought to be fastened on a master upon the'principle of respondeat superior, the two important questions are the existence of the contractual relation of master and servant, and whether the act or omission complained of was performed within the scope of the employment.</p> <p>3. Master and Servant <@=»301(1) — Respondeat Superior — Automobiles — Title to Car — Dominion.</p> <p>In an action for injuries occasioned by automobile driven by a servant, it is immaterial that title to the ear is in defendant’s wife and that she pays the driver, where defendant has full dominion over the car and driver and furnishes the wife with funds to pay all the servants.</p> <p>4. Master and Servant &wkey;5332(2) — Injuries to Third Persons — Automobiles.</p> <p>Where person injured by automobile shows that the driver was in the employ of the owner, there is an inference that the servant was acting within the scope of Ms employment at the time of the injury, and the court cannot direct a verdict for defendant on that issue, especially where the defendant’s evidence is only, negative and the servant is not a witness, because the jury might infer that the servant was driving somewhere for tools or to get repairs, or do other things in connection with his dnties.</p> <p>5. Master and Servant <&wkey;332(2) — Injuries to Third Persons — Automobile — Questions for Jury.</p> <p>In action for death of child caused' by automobile driven by servant, whether driver was in employ of defendant and was acting within the scope of his employment held, under the evidence, for the jury.</p>

AY. Ferguson, Judge. Action by George M. O’Rourke, pro ami, etc., against Angeline AVoodward, executrix, etc. From a judgment for defendant, plaintiff appeals. Suit for damages for personal injuries sustained by the plaintiff while being carried as a passenger on an elevator in the Brown-Marx Building, a public office building in the city of Birmingham, on February 11, 1915, resulting in the loss of plaintiff’s right leg, and other injuries.

Henry Mack was convicted of murder in the first degree and sentenced to the penitentiary for the term of his natural life. From this judgment of conviction he prosecutes this appeal.

Locke, Judge. Suit in equity by Mrs. F. W, Hurd against Octavius Spencer. From a decree for com.;plainant, defendant appeals. Bill filed by appellee, Mrs. F. W. Hurd, against appellant, Octavius Spencer, to quiet title to certain property described in the bill. The answer discloses that the (respondent claimed title ta the property through a mortgage executed by the complainant, Mrs. F. W. Hurá, and her husband, W. G. 1-Iurd, to C. H. Spencer, father of respondent.

<p>Appeal from Circuit Court, Pike County; A. B. Poster, Judge.</p> <p>Ejectment by W. B. Polmar against T. J. Powell. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Public Lands <&wkey;01(ll) — Swamp Lands— Conveyance of Land Itself —Vesting of After-Acquired Title.</p> <p>A “Chardavoyne” patent, covering swamp lands issued by the state, conveyed not merely the state’s interest in the land, but the land itself, and the word “grant,” in Code 1907, § 3421, importing a covenant for quiet enjoyment against the grantor, his heirs, and assigns, where not limited by express words, vested in the patentee any title afterwards acquired by the state other than by adverse possession.</p> <p>2. Deeds <&wkey;116 — Title by EstoppeiA-Aftek-Acquired Title under Warranty Deed.</p> <p>A grantor’s after-acquired title passes to his grantee under warranty deed; the rale, being based on principles of morality.</p>

<p>1. Municipal Corporations <&wkey;680, 681(8)— Public Right — Private Use.</p> <p>Public highways belong to the public from end to end, and from sido to side, and there is no such thing as the rightful, private, permanent use of a public highway, and one who uses a public highway for his own. private use commits an indictable public offense, though he does so with the permission of the municipal authorities.</p> <p>2. Dedication <&wkey;58 — Use Contrast to Purpose of Dedication.</p> <p>A public highway cannot be used in a manner foreign to its dedication, and any encroachment thereon, or use thereof inconsistent with such purpose, constitutes an enjoinable nuisance, and the obstruction or encroachment may consist in anything' which renders the highway less commodious, as by plowing and sowing it in grain, accompanied with threats of prosecution to those who travel over it.</p> <p>3. Eminent Domain <&wkey;274(4) — Right of Abutting Owner — Compelling Restoration of Street — Enjoining Damage by City.</p> <p>A property owner has the right to require the municipality to restore a street to its former condition, and he may enjoin acts of damage to his property by the municipality where there is an attempt to take of injure his property for public use without compensation in advance.</p> <p>4. Eminent Domain <&wkey;274(4) — Enjoining City from Changing Grade of Street.</p> <p>A citizen may enjoin a municipality from taking or injuring his property by changing the grade of a street without first making compensation without regard to the solvency or insolvency of the parties, or the fact that adequate damages at law can be recovered.</p> <p>5. Dedication <&wkey;61 — Enjoining Vacation of Street by City — Conversion into Cemetery.</p> <p>An owner abutting on a street whose property was bounded on other sides by other streets could maintain a bill to enjoin the city from obstructing or vacating the street or part of it by converting it into a public cemetery.</p> <p>6. Municipal Corporations <&wkey;657(l)-Injunction Against Vacation of Street-Authority — Setting Up in Answer.</p> <p>If city, defendant in injunction suit to restrain vacation of street, has any authority to do what the bill alleges, such authority should bo set up in the answer if not appearing in the bill.</p>

L. Brewer, Judge. Bill for injunction by Mrs. H. O. Berry against J. J. Dunn and others. From the decree, complainant appeals.

<p>Appeal from Circuit Court, Jefferson County; A. H. Benners, Judge.</p> <p>Suit by the Empire Guano Company against the Jefferson Fertilizer Company. From a judgment for defendant, complainant appeals.</p>

<p>1. Quieting Title <&wkey;50 — Removal oe Cloud on Title — Jurisdiction oe Equity —Statutes.</p> <p>On a statutory bill to quiet and determine title, filed under Code 1907, § 5443 et seq., relief may be granted by canceling deeds or conveyances as clouds on title incidentally to complete relief, but the statutes do not take away the jurisdiction of equity to remove cloud from title which equity had prior to their passage.</p> <p>2. Quieting Title &wkey;>42 — Amendment oe Bill — Relief from Void Mortgage.</p> <p>Where the bill was originally filed as a bill to quiet title strictly under the statutes (Code 1907, § 5443 et seq.), it may be amended by adding averments seeking relief from an alleged void mortgag’e constituting respondent’s claim to the property.</p> <p>3. Quieting Title <&wkey;3-5(3) — Removal of Cloud on Title — Equity of Bill.</p> <p>Bill held to contain equity as one to remove cloud from title, and as such not subject to any ground of demurrer interposed, though, in alleging facts to show his possession, complainant followed the language used in Code 1907, § 5443 et seq., giving the statutory action to quiet title.</p>

<p>1. Appeal and Error <&wkey;1057 (1) — Exclusion of Evidence — Harmless Error.</p> <p>Where defendants, after exclusion of a paper writing, connected themselves with title from the government through another channel, and the court clearly instructed that they had shown a perfect paper title, the exclusion was harmless, and not ground for reversal of judgment for plaintiff based on adverse possession.</p> <p>2. Adverse Possession <&wkey;114(l) — Sufficiency 'of Evidence.</p> <p>In suit to recover value of logs cut on a tract of land, title to which was in dispute between the parties, plaintiff’s proof of title by adverse possession hold insufficient for submission to jury, in view of principle that in case of mixed possession color of title is available to the holder of the true title only.</p>

Horton, Jr., Judge. Bill by tlie Chattanooga Savings Bank against JSaxter Crawford, and others to reform a mortgage, to ascertain tbe amount due on a note, and to foreclose. From a decree overruling demurrers to tbe bill, respondents appeal.

<p>1. Homestead <&wkey;119 — Acknowledgment — Requisites and Sufficiency.</p> <p>Code 1907, § 4161, requiring separate acknowledgment of the wife to a deed alienating the homestead, is satisfied by substantial compliance, since it must be liberally construed.</p> <p>2. Infants <&wkey;10 — Alienating Homestead— Minor Wife.</p> <p>There is no inhibition against assent by an infant wife to the husband’s conveyance of the homestead.</p> <p>3. Infants <&wkey;10 — Alienating Homestead— Minor Wife — Liabilities of the Wife.</p> <p>An infant wife, who separately acknowledges the husband’s grant of the homestead, is not a party to the deed in the sense that she is bound by its covenants and .warranties, since her deed passes only her marital rights.</p> <p>4. Infants <&wkey;5, 47, 60 — Contracts—Validity.</p> <p>An infant’s contract, whether executed or executory, as a rule is voidable merely, except it be a contract for necessaries, which is valid to the value of goods furnished, or an appointment of agent or attorney, which is void.</p> <p>5. Infants <&wkey;57(l), 58(1) — Contracts—Validity.</p> <p>On arriving at maturity, an infant may repudiate his contract, or he may ratify and confirm it without any new consideration.</p> <p>6. Infants &wkey;>10 — Alienating Homestead-Minor Wife — Liabilities of the Wife.</p> <p>A deed executed by an infant feme covert pursuant to the statutory requirements stands on precisely the same footing as a deed executed by an infant feme sole, and is voidable only.</p> <p>7.- Infants &wkey;>10 — Alienating Homestead— Minor Wife — Liabilities of tiie Wife.</p> <p>Where an infant wife separately acknowledged a homestead deed, her act was voidable only within the time and in a mode authorized by law.</p> <p>8. Infants <&wkey;23 — Contracts—Validity.</p> <p>An act or a deed of an infant which the law would compel him to do or make is just as valid as if he were of full age.</p> <p>9. Infants <&wkey;6 — Contracts—Validity.</p> <p>An infant may be an agent or a trustee for another, and may bind such other person, though he cannot bind himself.</p> <p>10. Homestead <&wkey;l 19 —Alienating Homestead — Minor Wife — Validity as Husband.</p> <p>Since the infant wife cannot legally be compelled separately to acknowledge her husband’s homestead deed, if she is-induced or compelled by the husband to do so, the conveyance is void as to the husband.</p> <p>11. Homestead &wkey;>119 — Separate Acknowledgment — Homestead Deed.</p> <p>The constitutional and statutory provisions, requiring separate voluntary acknowledgment by the wife of a homestead deed, are for her benefit, and not that of the husband.</p> <p>12. Homestead <&wkey;129(l) — .Separate Acknowledgment — Homestead Deed — Fraud —Estoppel.</p> <p>If the wife’s separate acknowledgment to a homestead deed is valid on its face, the husband cannot, as against a purchaser innocent of the fraud, set up his own fraud in inducing the wife’s signature.</p> <p>13. Homestead <&wkey;12S — Alienating Homestead — Minor Wife — Liabilities of the Wife.</p> <p>Where the wife, an infant, separately acknowledged a homestead deed, legal title vested in the grantee, subject to be defeated by the wife’s avoiding the conveyance, before legal-title repasses from the grantee to the husband grantor.</p> <p>14. Homestead i&wkey;157 — Abandonment — Rights of Wife.</p> <p>The husband oannot destroy the wife’s homestead rights by abandoning both the homestead and the wife.</p> <p>15. Homestead <&wkey;l — Exemption—To Whom.</p> <p>The homestead exemption runs to the husband, and, though it inures to the wife and infant children, does so by and through the husband’s personal exemption.</p> <p>16. Homestead <&wkey;131 — Conveyance — Avoidance.</p> <p>Where an infant wife separately acknowledged a homestead conveyance, the husband’s bringing ejectment against the grantee did not of itself amount to disaffirmance by the wife.</p> <p>17. Injunction <&wkey;26(6) — Right to Writ.</p> <p>Where an infant wife separately acknowledged a homestead conveyance, the grantee’s bill to enjoin an action in ejectment by the husband against him had no equity, since he had a complete defense to the action.</p>

A. Sharpe, Judge. Action by the Terre Haute Brewing Company against Hugh McGeever and others on a guaranty bond. Judgment for plaintiff, and defendants appeal.

<p>Appeal from Circuit Court, Pike County; A. B. Foster, Judge.</p> <p>Bill by .Sallie Blair and others against Louvenia Jones and others to cancel a mortgage. Decree for defendants, and plaintiffs appeal.</p>

Suit by the State against Bessie Ellis to restrain a nuisance. From a decree of the circuit court sustaining a demurrer to the bill for want of equity and dissolving the writ of injunction, the State appeals.

County; R. C. Brickell, Judge. Assumpsit by the Central National Bank against J. F. Neill. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. The original complaint claimed the sum of $500 due by defendant to plaintiff, payable six months after date, to the order of defendant, and plaintiff avers that defendant duly indorsed said note, and that the same, with interest thereon, is now due and unpaid.

C. Briekell, Judge. Action by the Central National Bank against J. R. White and others. Judgment for plaintiff, and defendants appeal. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6.

<p>Appeal from Circuit Court, Cullman County; J. E. Blackwood, Judge.</p> <p>Action by Lucy Flenn against-the Louisville & Nashville ¡Railroad Company. From judgment setting aside directed verdict for defendant, defendant appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; O. B. Smith, Judge.</p> <p>Assumpsit by W. H. Acker against W. A. Denson. Judgment; for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.</p> <p>The complaint was upon the common count, and the special count on contracts. The seventh, eighth, and thirteenth assignments of error are as follows:</p> <p>(7) The court erred in overruling defendant’s objection to the following question: “You are not a contractor; you were not skilled on that; you couldn’t state positively?”</p> <p>(S) Answer to said question: “No, sir; not at that time. The work was pretty high at that time.”</p> <p>(13) The trial court erred in overruling defendant’s objection to the following question: “Mr. Mann, considering that the material on the job consisted of this bill here, which I will ask you to look over (handing paper to witness), do you understand what is on that bill? Suppose a house was 32 feet square, with the pitch of a ceiling of 10 feet, and suppose it had a projection over the eaves about a foot on all sides of that house, and that house required a new roof, except the hip rafters, and the old rafters, according to — being virtually destroyed, and it had to be braced with new stuff, a complete new roof, consisting of the decking and the shingles, ali this grade No. 1 cypress, and the joists 2x4 over two rooms and part of another, about half, and the ceiling in two rooms, and patching in another, and the siding on the outside of the property, it says here, 250 feet of siding, I don’t know whether it was square, maybe more than that, including a closet which — I don’t believe it is conceded what the size of it is, but it was a small closet, two doors with framing and hardware put up, one window framing, and a pair of blinds, and also blinds and sash for one window complete, with the framing all around it, some framing in the main body of the building where it had to be taken out and replaced, all done with this material here, and the cornice put on one side of the house new; what would be a reasonable and fair amount to charge in such a case as that, where the house had been damaged by fire to the extent that I have just told you; what would be a reasonable value for the labor where the material bill was $117.82, and consisting of the material in this bill?”</p> <p>The fifteenth and. sixteenth assignments of error covered a similar objection to a question similar in its nature as that above set out.</p> <p>The instruction set out in the seventeenth assignment of error was refused to defendant, and is as follows:</p> <p>If you believe from the evidence that there was a contract, and that the contract was for .two coats of paint, and that plaintiff did not put on the two coats of paint, then plaintiff cannot recover in this case.</p>

Bill by N. J. Greil and. others against Erank Stollenwerck and others to enjoin the obstruction of a way. Erom a decree sustaining demurrers to the bill and dismissing it, complainants appeal. The following is the ordinance and contract referred to and directed to be set out: An Ordinance. Be it ordained by the city council of Montgomery as follows: Section 1.

<p>Appeal from Circuit Court, Etowah County; J. E. Blackwood, Judge.</p> <p>Action by J. H. Rothrock and another against the Alabama Great Southern Railroad Company. Judgment for defendant, and plaintiffs appeal.</p> <p>The third count in averment of negligence is that plaintiff was damaged as a proximate consequence of the negligence of defendant in running said train at an excessive rate of speed, to wit, about 40 miles per hour. The pleas are as follows:</p> <p>(3) For further plea to the first and second counts of the complaint defendant says that at the time of the happening of the injuries complained of the said automobile was being driven by one E. H. Rothrock, plaintiff’s agent, and that said agent of plaintiff, within the line and scope of his duties as such agent, was guilty of contributory negligence which proximately contributed to the injuries complained of in this: That the said agent of plaintiffs, before driving the said automobile across said track, negligently failed to stop, look, and listen within the space that would have been sufficient to enable him to stop said automobile before going on the track in the event he discovered said train approaching, and thereby proximately contributed to the injuries complained of.</p> <p>(4) And for further plea on this behalf to the first and second counts of plaintiffs’ complaint, defendant says that plaintiff’s agent in charge 'of and driving said automobile at the time of the happening of the injuries complained of was guilty of contributory negligence in the performance of the duties which he owed plaintiffs and within the line and scope of his agency, which proximately contributed to the injuries complained of in this: That before driving said automobile upon said track he negligently failed to stop, look, and listen at a place and in time to have stopped his automobile before going upon said tragic, when by stopping, looking, and listening he could have seen the approaching train and have stopped his automobile before going upon said track, and thereby have avoided the injury complained of.</p>

<p>1. Appeal and Error &wkey;>1009(l) — Conclusions of Trial Court — Eeview.</p> <p>Witnesses having been examined orally before the trial judge, his conclusion of fact will not be disturbed unless plainly palpably erroneous.</p> <p>2. Acknowledgment <&wkey;7 — Correction of Deed — Eeacknowledgment.</p> <p>Acknowledgment and delivery of a deed having been perfected, correction of the description therein by the grantor, though with the grantee’s consent, had no effect or operation; the instrument not having been again acknowledged or attested.</p> <p>3. Yendor and Purchaser <S=»220 — Bona Fide Purchaser — Want of 'Title.</p> <p>Where grantor did not have legal title because description in recorded deed to him was defective, his grantee could not be a bona fide purchaser without notice.</p> <p>4. Appeal and Error <&wkey;1078(l) — Assignment of Error — Waiver.</p> <p>Assignments of error not insisted upon in brief will be held to have been waived.</p>

<p>1. Appeal and Ebror <&wkey;843(l) — Scope oe Review — Waiver oe Errors.</p> <p>Since the appellant may waive on appeal questions other than jurisdictional questions, and so invest the appellee with rights which he would not have without such waiver, the court’s review will be confined to the single ground upon which insistence for error in overruling demurrer to the bill was made.</p> <p>2. Homestead <&wkey;133 — Conveyance — Cancellation — Action—Parties.</p> <p>In suit to cancel a deed of the homestead made by the husband after separating from his wife, it was not misjoinder for the widow and the children of the grantor to join as plaintiffs in view of Code 1907, §§ 4196, 4198, as to the rights of the widow and children in the homestead, especially in view of section 3212, providing that the chancellor may decree such relief as equity, may require in favor of any one or more complainants.</p> <p>3. Homestead <&wkey;118(3) — Conveyance — Joinder of Wife — Statutes Applicable.</p> <p>Code 1907, § 4161, requiring that in a deed of the homestead, the wife shall join hy separate acknowledgment, applies only to conveyances by the husband, and not to conveyances by a third person, so that where the homestead was sold under foreclosure, and the land was purchased hy the husband in the name of a third person, validity of a deed by such person was not determinable according to whether the original owner’s wife separately acknowledged it.</p>

<p>Original petition in mandamus ex parte Ren P. Elmore, to require the Judge of the Circuit Court to hold terms in Marengo County at Demopolis.</p>

<p>1. Courts <&wkey;52 — Abolition of Chancery Court — Pending Causes.</p> <p>Where the ehaneery court ceased to exist by operation of law, causes pending therein were transferred for trial or decision to the circuit court, which was clothed with the power either to set aside a former submission and have resubmission, or to render decision on the original submission.</p> <p>2. Equity &wkey;>363 — Motion to Dismiss — Want oe Equity.</p> <p>A motion to dismiss for want of equity will be sustained only when complainant can have no relief after admitting all the facts apparent on the face of the bill, whether or not well pleaded.</p> <p>3. Injunction <&wkey;171 — Dissolution—Want of Equity — Denials—Amendable Defects. •</p> <p>Dissolution of an injunction will be allowed only for want of equity in the bill, or upon the denials of a verified answer; the amendable defects being regarded as amended.</p> <p>4. Injunction &wkey;136(2) — Injunction Pendente Lite — Cutting of Timber.</p> <p>In suit to enjoin the cutting and removal of timber, ordinarily the court will allow a temporary writ of injunction, whether complainant or respondent be in possession, to preserve the property until the rights of the parties to the timber can be judicially determined,</p> <p>o. Lis Pendens t&wkey;8 — Institution of Suii>Statute.</p> <p>Where injunction to restrain the cutting and removal of timber was sought, lis pendens extended from the date of institution of the suit under Code 1007, § 4853, when the bill of complaint was filed in the office of the register in chancery.</p> <p>6. Lis Pendens <&wkey;l — Essentials of Application of Doctrine.</p> <p>Two things are indispensable to give the doctrine of lis pendens effect: First, the litigation must be about some specific thing, which must be affected by the termination of the suit; second, the particular property involved in the suit must be pointed out by the proceedings, so as to warn the whole world that they intermeddle at their peril.</p> <p>7. Judgment &wkey;682(l) — Subsequent Purchasers — Effect.</p> <p>■ Where the special defense sought to be made in suit to restrain the cutting and removal of timber could have been pleaded in bar of a former suit by complainant’s predecessor in title, the judgment in the former suit was binding on a purchaser pending litigation from a party to the suit.</p>

Action by the State, against the Louisville & Nashville Railroad Company, for collection of a franchise tax. Ftom the judgment rendered, the Railroad Company appeals.

H. Benners, Chancellor. Bill by Warwick Saunders against R. N. McDonough and others to restrain and enjoin the selling, pledging, or transferring of certain stock and bonds of the Self-Fluxing .Ore & Iron Company, and for an accounting and other relief. From a decree for plaintiff, both parties appeal. ' The letter agreement referred to in the opinion is as follows: “Birmingham, Ala.

<p>Appeal from Law and Equity Court, Mobile County; Saffold Berney, Judge.</p> <p>Assumpsit by the American Agricultural Chemical Company against Baker, Lyons & Co., a partnership, and as individuals. Judgment for plaintiff,' and defendants appeal.</p> <p>The gravamen of plaintiff’s case is that defendants, who are cotton factors, sold and converted to their own use about 130 bales of cotton, which were the property of plaintiff. The complaint contains several counts for money had and received, a count in trover, a count in trespass, and several counts for conversion, with a statement of the fact's. Count 5 is as follows:</p> <p>Plaintiff claims of defendants the further sum of $7,500 for that heretofore, to wit, in the latter part of the year 1914, one E. N. Amos, who had previously assigned to and hypothecated with the plaintiff to secure an indebtedness owing by the said Amos to the plaintiff in the sum of, to wit, $8,620.60, sundry mortgages given to him by various people, and who had been appointed by the plaintiff as plaintiff’s agent to collect the indebtedness secured by said mortgages for the plaintiff, and who had received as payments on many of said mortgages from the respective makers thereof, to wit, 130 bales of cotton covered by one .or more of said mortgages, and had credited each of the parties delivering the said cotton with the value thereof upon the indebtedness secured by the mortgage of the party making such delivery, collection in that manner having been authorized by plaintiff, delivered the cotton so' collected and received, to wit, 130 bales, to the defendants, who were then doing business as cotton factors in the city of Mobile, Ala., and the defendants during, to wit, the month of January, 1915, sold to bona fide purchasers for value, to wit, 111 bales of the said cotton, and retained the proceeds thereof, applying the same as a credit upon an indebtedness then owing by the said Amos to the defendants, all to the hurt and injury of the plaintiff in the sum herein claimed, wherefore plaintiff sues.</p> <p>Besides the general issue and the statute of limitations for one year, defendant pleaded several special pleas, the general substance of which is shown by plea 3, which is as follows:</p> <p>That defendants are cotton factors doing business in the city of Mobile, Ala., and have been doing such business for more than five years preceding the filing of this suit; that some time in the month of, to wit, March, 1914, E. N. Amos, who was engaged in the general merchandise business at Brooklyn, Ala., made arrangements with defendants to provide for the extension of an indebtedness then due and owing defendants and to secure additional moneys and advancements for the purpose of carrying on his business during the year 1914; that as security therefor the said E. N. Amos promised and agreed to ship to the defendants all cotton which he would raise, handle, or control during the season of 1914; that in pursuance of said arrangements, and in consideration of the security offered, the defendants advanced the said E. N. Amos large sums of money during the said year of 1914, and that defendants had no notice of any lien whatsoever which may have been claimed by the plaintiff, but that they sold said cotton on, to wit, the 8th day of January, 1915, and applied the proceeds as a credit to the indebtedness arising by reason of the said transaction had with the said E. N. Amos. They further allege that there is still due and owing them a large sum of money, to wit, $11,000. They further allege that they had the right to make such application of the proceeds by reason of the lien existing in their favor as cotton factors.</p> <p>‘The following facts are substantially undisputed: The plaintiff company sold fertilizer in the'spring of 1914 to one Amos, a merchant, who sold it to farmers, and took from them notes and mortgages on their crops and other personalty as security. By a prearrangement Amos transferred, assigned, and delivered these mortgages to plaintiff as collateral security for its account against Amos, said transfer being made July 21, 1914. On September 24, 1914, said notes and mortgages were redelivered to Amos under the following written agreement with him: ,</p> <p>“The American Agricultural Chemical Company, a corporation, hereby constitutes and appoints E. N. Amos of Brooklyn, Ala., its trasteo for the express purpose of collecting the notes, mortgages, and accounts hereinafter listed, and said company does hereby authorize and empower said trustee to cancel and render said notes and mortgages upon payment of the same to him. * * *</p> <p>“I, E. N. Amos, do hereby acknowledge receipt of the foregoing note, mortgages, and accounts (and accept the trust), holding myself ready to pay said company the proceeds of said notes and mortgages at any time as collections shall be made thereon, or upon demand made upon me tjicrefor.”</p> <p>Thereafter, in the fall of 1914, Amos received 115 bales' of cotton from the several mortgagors covered by the mortgages, besides 13 bales for a half interest only. As each lot of cotton was delivered to Amos he agreed with the several mortgagors that the mortgages should be credited with the value of the cotton delivered, and credit was after-wards given by him on the basis of the sales of the cotton afterwards made by defendant, to whom he delivered the cotton, on his own account. On March 4, 1914, Amos executed to defendants, Baker, Lyons & Go., his promissory note aggregating $25,000, to cover existing indebtedness for farm advances, and also present and future advances of money, said notes containing the provision:</p> <p>“X also agree as part of the consideration hereof to ship Baker, Lyons & Co. all the cotton I raise, handle, or control during the season of 1914.”</p> <p>Under this agreement, and also an oral agreement to turn over his collateral securities to defendant, Amos shipped to them a large quantity of cotton, including the bales' here in question during the fall of 1914, anil defendant sold it about January 12, 1915, and credited the proceeds to Arnos’ account. Defendants had mortgages as collateral security covering some of the cotton received from Amos, but not for any of the lot claimed by plaintiff. Plaintiff’s agent made demand on defendants on the morning of January 12, 1915, for the cotton or the proceeds of such as may have been sold, which demand was refused. The court, sitting, without a jury, found that defendant had no notice of any claim prior to January 12, 1915, but on the evidence rendered judgment for plaintiff for the sum of $3,867.29. The bill of exceptions does not show that it contains all the evidence for the court.</p>

B. Postor, Judge. Bill by Diana Hausman and others against A. Brown to perpetually enjoin interference in any wise with the easements and rights of complainants, and from closing the openings of doorways in partition walls, etc. Decree for respondent, and complainants appeal. *The following is the opinion of the court: In the year 1879 Stephen Miller owned the brick store at the southeast corner of the intersection of Broad or Pifth street and Greensboro avenue, in the city…

<p>Certiorari to Court of Appeals.</p> <p>Petition by C. A. Tyson for certiorari to review a judgment of the Court of Appeals (77 South. 986) in an action by the Jennings Produce Company against petitioner.</p>

Action by Vashti Bailey against the Clark-Pratt Cotton Mills Company for damages for injuries received while engaged in their employment. Judgment for plaintiff, and defendant appeals. While in the discharge of her duties as an employs of defendant cotton mill company, plaintiff was severely injured by the falling of a piece of steel shafting carrying several pullers and belts from its hangers overhead. There were four counts to the complaint.

<p>Appeal from. City Court of Talladega; Marion II. Sims, Judge.</p> <p>Action by W. M. Bell against W. N. Jones and others. Judgment for plaintiff, and defendants appeal.</p>

Action by T. E. Lovejoy, administrator of ■ W. C. Lovejoy, deceased, against the Mutual Life Insurance Company of New York. Judgment for plaintiff, and defendant appeals.

<p>1. Exemptions <&wkey;62 — Costs.</p> <p>Costs partake of the nature of the suit, and neither plaintiff nor defendant in an action ex delicto or founded upon a tort, though the form of the action be ex contractu, can claim exemptions against execution for costs.</p> <p>2. Homestead <&wkey;90 — Extent oe Exemption —Costs—“Debts. ’</p> <p>In suit in chancery between tenants in common for sale of the land for division, where plaintiff failed for want of title, and the register in chancery issued execution for costs taxed against him, against which process plaintiff interposed a claim of homestead exemption, plaintiff’s homestead was exempt, since the suit in which the costs accrued was not in a technical sense an action or suit ex contractu, nor was it ex delicto in character, being quasi ex contractu, that is, to enforce a civil right given by law to tenants in common, while costs in civil cases, except in actions ex delicto or quasi ex delicto, are “debts” within tne meaning of the term as used in the constitutions and statutes of Alabama.</p> <p>[Ed. Note.' — For other definitions, see Words and Phrases, First and Second Series, Debts.]</p>

W. Ferguson, Judge. Action by Mary Coleman against Sidney J. Hart. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. Suit by appellee against the appellant to recover damages for personal injuries suffered by her on June 20, 1913, while occupying a house, including a front porch, as a residence in the city of Birmingham, which plaintiff had rented from defendant.

<p>1. Malicious Prosecution <&wkey;ll — Civil Action-Absence oe Arrest or Seizure.</p> <p>Even in the absence of an arrest of his person dr a seizure of his property, the successful defendant has an action against plaintiff who has proceeded against him to his damage in a civil action maliciously and without probable cause.</p> <p>2. Malicious Prosecution <&wkey;10 — Civil Action-Probable Cause.</p> <p>At the ancient common la-^ an action would lie for the malicious prosecution without probable cause of a mere civil action.</p> <p>Anderson, C. J., and McClellan and Mayfield, JJ., dissenting.</p>

<p>1. Specific Performance &wkey;>68 — Right to Remedy — Sale of Chattels.</p> <p>Generally, contracts concerning sales of chattels will not be required to be specifically performed, because their money value as damages will enable purchase of others of like kind and quantity; but specific performance may be decreed where the chattels have a special value to the owner.</p> <p>2. Specific Performance <&wkey;114(l) — Sale of Chattels — Bill of Complaint.</p> <p>In suit for specific performance of contract to sell railway rails, where plaintiff alleged that he had sold the rails to a third person, his damages by the breach were easy of ascertainment, and the allegations that he would be irreparably damaged did not make a case of damage which could not be fixed by a jury at law.</p> <p>3. Specific Performance <&wkey;68 — Right to Remedy — Sale of Chattels.</p> <p>In suit for specific performance of contract to sell rails, where the defendant’s insolvency was not alleged, plaintiff was not entitled to specific performance, since a decree for damages would compensate him for all damages from the breach, and he failed to show that, as required by Code 1907, § 3052, he had no plain and adequate remedy at law.</p> <p>4. Specific Performance &wkey;>68 — Right to Remedy — Sale of Chattels.</p> <p>Mere fact that economical conditions due to war rendered it impossible to get other rails than those which defendant agreed to sell plaintiff did not entitle plaintiff to specific performance of contract, where his damages were ascertainable in an action at law.</p> <p>" Gardner, J., dissenting.</p>

<p>Public Lands <&wkey;135(2), 136 — Entry—Sale by Entkyman,</p> <p>A warranty deed or mortgage by one who had not perfected his homestead rights, having' no patent, certificate, or final receipt, and not having furnished sufficient proof to acquire a certificate, was absolutely void, under Rev. St. U. S. §§ 2290, 2291 (U. S. Comp. St. 1916, §§ 4531, 4532), and the subsequent issue of a patent did not inure to the grantee.</p>

<p>Appeal from City Court of Montgomery; Gaston Gunter, Judge.</p> <p>Proceedings to enforce a materialman’s lien by the J. C. Letcher Lumber Company against the College Court Realty Company. Judgment for plaintiff, and defendant appealed. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6.</p>

' Proceedings by the J. C. Letcher Lumber Company against the College Court Realty Company, to enforce a mechanic’s lien. Judgment for plaintiff, and defendant appealed. Transferred from the Court of Appeals under ’ section 6, Act April 18, 1911 (Acts 1911, p. 449).

C. Brickell, Judge. Action by S. F. Farley, as administrator, against the Louisville & Nashville Railroad Company, for damages for the death of plaintiff’s intestate. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Circuit Court, Etowah. County; John H. Disque, Judge.</p> <p>Action by R. T. Royster against M. T. Thrasher. Judgment for plaintiff, and defendant appeals.</p>

B. Smith, Judge. ■ Action by Alphonse Milbrat, pro ami, against the Birmingham Railway, Light & Power Company. From judgment for plain-, tiff, defendant appeals. Reversed and cause Plaintiff was injured by jumping from a window of the fourth floor of a burning building, leased and occupied by defendant company in the city of Birmingham as its place of business. Plaintiff was employed by defendant,. and engaged in the performance of his duties at the time.

Suit in equity by J. W. Sleigh against W. F. Carson and others, wherein cross-hill against complainant, J. C. and T. L. Carson was filed. From the decree, respondents and cross-complainants appeal.

Pugli, Judge. Action by Charles Ilann against the Western Assurance Company. Judgment for plaintiff, and defendant appeals. Suit by appellee against the appellant upon a policy of fire insurance to recover damages for the destruction of his stock of goods insured against loss by said policy contract.

M. Miller, Judge. Action by G. W. Segrest as administrator -of the estate of Grover Einley, deceased, against the Roden Coal Company, for damages for the death of his intestate, while in the service and employment of defendant. Judgment for plaintiff, and defendant appeals.

<p>1.Detinue <&wkey;22 — Proof of Value of Property — Verdict for Defendant.</p> <p>Under Code 1907, § 3781, providing that upon the trial of an action in detinue the jury must; after they find for plaintiff, assess the value of each article separately, if practicable, and also assess damages for its detention, and if they find for .defendant, they must in like manner assess the value, and if in possession of the plaintiff assess damages for its detention, where plaintiff has failed to prove the value of the property sued for judgment cannot be entered for him, and it is not error to give a general charge for defendant.</p> <p>2. Detinue <&wkey;18 — Burden of Proof — Title.</p> <p>The burden is on plaintiff in detinue to prove that he has a general or special property in all or some identified part of the chattels sued for, with the right to immediate possession, and if he has never had actual possession, he must show legal title.</p> <p>3. Bailment '<&wkey;16 — Conversion— Assignment.</p> <p>An attempted assignment by bailee contrary to the terms of a bailment is a conversion.</p>

Jim White was convicted of murder, and he appeals. Indictment found against the appellant by the grand jury of Shelby county, in the comity court of Shelby, charging murder in the first degree at the July term, 1915, of said court. Said indictment bore the indorsement of a “True Bill. D. W. Kidd, Foreman of the Grand Jury.

Prank Moragne, alias Prank Moriner, was convicted of unlawfully transporting intoxicating liquors. His conviction was affirmed by the Court of Appeals (78 South. 98), and he applies for a writ of certiorari.

Clarence Stollenwerck was convicted of keeping open store on Sunday, and be appealed to the Court of Appeals, wbicb affirmed (77 South. 52), and he petitions for certiorari.

<p>Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.</p> <p>Action by F. M. Douglass against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff appeals.</p>

Court, Clay County; Leon McCord, Judge. Action by J. C. Street against Barnie Griffin. From an order directing plaintiff to pay the costs for failure to answer interrogatories and an order dismissing the suit for failure to comply with the first order, plaintiff appeals. Transferred from the Court of Appeals under Act April 18, 1911, p. 449, § 6»

C. Brickell, Judge. Suit in equity by George D. Atchley against Mary ! The power of attorney executed by Mrs. Thompson to Petty is as follows: State of Alabama, Madison county.

J. Curtis, Judge. Action by S. Hamilton against the Cranford Mercantile Company. Judgment for defendant, and plaintiff appeals.

Grayson, Judge. Suit by the Cunningham Hardware Comr pany and others against Mary E. Kimball. Decree for complainants. From a ruling sustaining complainants’ contest of homestead exemption interposed by defendant after levy of execution, defendant appeals.

<p>Certiorari to Court of Appeals.</p> <p>Action by Pauline Weil against the Travelers’ Insurance Company. Judgment for defendant was affirmed by the Court of Appeals, and plaintiff brings certiorari.</p>

Assumpsit by the People’s Bank of Mobile against I-Iattie B. Moore. Judgment for defendant, and plaintiff appeals. The action is on three promissory notes, of like amount and tenor, which are separately declared on in counts 5, 6, and 7. Count 8 is for a reasonable attorney’s fee for the collection of these notes.

Turner, Judge. Bill by Mabala McKenzie and others against Carl Hixon and others. Ffom a decree denying relief to complainants, and granting relief to defendants on their answer, treated as a cross-bill, complainants appeal.

<p>Appeal from Circuit Court, Mobile County; Saft'old Berney, Judge.</p> <p>Action by Frank Carroway against the Union Mutual Aid Association of Mobile. 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 Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Action by Mrs. S. Hertz against the Advertiser Company. Judgment for defendant, and plaintiff appeals.</p> <p>The case made by the record is thus stated by counsel for appellant:</p> <p>“Appellant sued appellee for damages occasioned by a fall she received while upon the premises of appellee by invitation; the fall being due to the alleged negligence of defendant in failure to use proper care and diligence to keep the building reasonably safe for plaintiff. The defendant pleaded not guilty and contributory negligence.</p> <p>“The evidence offered by plaintiff tended to pi-ove that plaintiff had business to transact with defendant, and for that purpose (and after an express invitatioxx over the phone) went to defendant’s premises on the night of March 8, 1916. That she entered these premises from the Lawx-ence street entrance, through which the public was invited and accustomed to go.- That upon leaving the public street she Entered defendant’s vestibule that was on grade or level with the street. A door from this vestibule opened into the office. As the door was opened there was a flight of steps leading abruptly down into the office. It was dark in this place, and as plaintiff opened the door (the door opening to the inside of the office away from the vestibule and -over the steps) she fell down the steps and received most serious injuries. This condition of the premises was to plaintiff unknown until after her fall. During the trial of the case plaintiff, after proving the condition of the premises to have been the same, undertook to prove by the witnesses Joxxes and Leak that they each fell at the place plaintiff fell, and about the same time plaintiff fell. The trial court refused to permit the introduction of this evidence to which plaintiff, duly excepted. R. pp. 12-14. After the evidence was closed, at the request of defendant in writing the court gave 16 charges. To the giving of each plaintiff excepted. R. pp. 18-22, 25-27.”</p> <p>Brief of appellee states the case as follows:</p> <p>“The complaint claims $25,000 damages fox-personal injuries x-eceived by plaintiff while on defendant’s premises, the complaint alleging in vax-ious terms that defendant was negligent in respect to maintaining its premises in a reasonably safe condition, and that plaintiff while on said px-emises by invitation received personal injuries as a proximate consequence of such negligence. The defenses were the general issixe and contributory negligence.</p> <p>“The advertiser company is a corporation engaged in the business of publishing a newspaper in the city of Montgomery; its place of business is on the southeast corner of Dexter avenue and Lawrence street. The building fronts on Dexter avenue and runs back about 110 feet on Lawrence street. There is a decided slope on Lawrence street, the rear of the building being about 2% feet higher than the front. The business offices of the defendant are on the first floor of the building; the printing presses are in the cellar: the editorial rooms and working rooms are on the second and third floors. On the first floor the offices of the various officers and employés are partitioned off by fixtures similar to banking fixtures, with mahogany bases and glass panels.</p> <p>“There is a wide entrance to the business offices of the defendant on the corner of Dexter avenue and Lawrence street, having a vestibule and a double door. On the Lawrence street side, to the rear of the building, there is an outer entrance leading into a vestibule 8 or 10 feet wide and 4 or 5 feet deep. To the right of this vestibule a flight of steps leads to the second floor, and to the left of the stairway, after passing through the vestibule, there is an entrance leading down to the business offices on the first floor. It is 16 inches from the level of the floor in the vestibule to the level of the floor in the rear of the business offices on the first floor of the building, and there are two ordinary steps from the vestibule down to this floor. At the head of the short flight of steps is a door opening from the vestibule in towards the rear of the offices. These business offices of the defendant are lighted with a series of 500 watt Mazda or Tungsten electric lamps, suspended from beams in the ceiling, and there is a drop-light in the vestibule. Defendant’s witnesses testified that on the flight of the accident to Mrs. Hertz all of these lights were burning. Plaintiff’s witnesses, testified, however, that it was dark in the vestibule .and in the space to the rear of the offices on the first floor into which the door from the vestibule opened. Rec. pp. ldr-lS.</p> <p>“The door opening from the vestibule into the rear of the business offices was put there in order that the employés might go from the first floor up to the operating departments on the second and third floors without going out on the street. Rec. p. 14. This door was used by the employés, and left unlocked for most of the time. There was no sign over the Lawrence street entrance that it was for employés only, and there was testimony that the public had been accustomed to use this entrance, although defendant's testimony was to the effect that it was designed primarily for and used -mainly by its employés.</p> <p>“At about 8 o’clock on the night of March 8, 1916, plaintiff, in company with another lady and her daughter, went with Mr. Wolff, in .the latter’s automobile, from the apartment house where the plaintiff lived, down town, intending to go to a picture show. Mr. Wolff stopped his automobile at the sidewalk on Lawrence street, near the Lawrence street entrance to the defendant’s building, which was directly across the street from the Lawrence street entrance, to the post office. Plaintiff wished to go into defendant’s offices in order to see about answers to an advertisement which she had inserted in the Advertiser. Plaintiff had been in the defendant’s offices on the first floor of the building several times before, always going through the wide entrance facing Dexter avenue. She had also been to the second floor of the building on two occasions, passing through the vestibule and ascending the flight of stairs to the right of the vestibule, but she had never been through the door leading from the vestibule down into the rear of the offices.</p> <p>“Mr. Wolff got out of the automobile and went across the street to the post office. Mrs. Hertz also got out of the car, entered the vestibule above described, went on to the door leading down into the offices, took hold of the doorknob, ‘and as soon as she started in she fell. She fell in a heap, and her ankles turned under her. It was dark in where she fell. Her feet crumpled up under her. She remembered she just opened the door and fell in a heap on the floor, and her feet were caught under her body. * * * She did not know any steps were there. She had never noticed any steps in there. Rec. _p. 10. * * * That she supposed that her idea was that the floor that she was on was the same level as the floor on the other side.’ Rec. p. 11. As the result of her fall, the plaintiff received severe injuries.</p> <p>“The case was submitted to the jury, which returned a verdict in favor of the defendant, and judgment was entered accordingly.”</p> <p>The negligence alleged, and relied upon for a recovery was the construction of, and maintenance of, dangerous premises. Some counts alleged this negligence in very general terms; others were special. The defenses were the general issue and contributory negligence, which were pleaded in short by consent.</p>

<p>Apxieal from Circuit Court, Mobile County; Claude A. Grayson, Judge.</p> <p>Bill by the First National Bank of Lake-land, Fla., against the Mobile Towing & Wrecking Company, and Harry T. Hartwell, to fix a lien upon 60 shares of stock, and have same issued and delivered to complainant. Decree for complainant, and respondents appeal.</p> <p>The bill alleges that on April 13, 1915, defendant Harry Hartwell, having for some time been indebted to the bank, executed and delivered to the bank his certain promissory note for $6,250, dated as of that date and payable six months after date, and also indorsed and delivered to his bank the promissory note of one Arthur Bailey for the same amount, and of the same date, and payable six months after date to the order of the bank, and also delivered to orator certificate No. 40, for 60 shares of the capital stock of the Mobile Towing & Wrecking Company, as collateral security for said note, and that said stock so delivered stood ón the books of the Mobile Towing & Wrecking Company, in the name of said Harry T. Hartwell, and that no part of said amount so secured and evidenced by said note has ever been paid by said Harry T. Hartwell to the bank, and that the said sum or $13,355.38, principal and interest, is now due from Hartwell to orator.</p> <p>' The’ second paragraph deals with the notice marked “Exhibit A,” which is set out in the opinion, and alleges, further, that in October, 1915, the, bank’s attorneys notified the Mobile Towing & Wrecking Company in writing that “your orator held as collateral security to the notes above set out certificate. No. 40, for 60 shares of the capital stock of respondent Mobile Towing & Wrecking Company.”</p> <p>The third paragraph sets up the notice and sale of the certificates of stock, and the purchase by defendant, and a demand upon the Mobile Towing & Wrecking Company to transfer to the bank on the books of the corporation the said shares of stock, and to issue in the bank’s name a new certificate for said capital stock.</p> <p>The fourth paragraph sets up the refusal of the Mobile Towing & Wrecking Company to issue said certificate, and to transfer said stock on the books of the company, and the assertion of a lien by the respondent on the shares of stock for a debt due it by said Harry T. Hartwell.</p> <p>The fifth paragraph sets up that the Mobile Towing & Wrecking Company has given notice by publication that at will sell in June, 1916, the 60 shares of stock standing in the name of the 'said Harry T. Hartwell, and which was purchased by the bank at the said sale aforesaid, to satisfy an alleged indebtedness of said Hartwell to the Mobile Towing & Wrecking Company.</p> <p>.The sixth paragraph alleges that whatever right or lien said Mobile Towing & Wrecking Company may have on or to said stock, such right or lien is subordinate to tbe right of orator to said stock, and orator is entitled to have said stock transferred in its name upon the books of the Mobile Towing & Wrecking Company. Defendant answered and made his answer a cross-bill. It admits the ownership by Harry T. Hartwell of certificate No. 40 for 60 shares of the capital stock of respondent. it denies the indebtedness of Harry Hartwell to complainant, as evidenced by the note, and that the respondent corporation in writing advised the hank that it was in receipt of complainant’s notice relative to said shares of stock, and that proper notification had been made on its books that such certificate had been given as collateral security for said note, and that there was no other pledge on the stock registered on the books of the company It admits that Hart-well was secretary of the respondent company, but denies that he has authority as such to make such communication in behalf of the company. It alleges that by reason of the relation of the transaction notice to Hartwell is not notice to defendant, and that the statement contained in Exhibit A that respondent corporation had no claim against the stock was false, and that said Hartwell had no power or authority, individually or as secretary of the company, to bind it by such papers; for in truth and in fact said Hartwell on said date was indebted to respondent corporation in the sum of more than $40,000, and has ever since been so indebted to this defendant, and this defendant had a lien upon the stock for the payment of such indebtedness. It neither admits nor denies the allegations of the third paragraph, except that it admits a demand by c’omxfiainant to have the certificate of stock issued to complainant. It admits the allegations of the fourth paragraph. It admits the allegations of the fifth paragraph, and further alleges the sale thereof. It denies that its lien is subordinate to the claim set up by defendant, and denies that complainant is entitled to have said stock transferred in its name upon the hooks of the Mobile Towing & Wrecking Company. It is then alleged that on March 16,1914, said Hartwell was indebted to respondent in a sum exceeding $40,000, and said indebtedness is still due and unpaid on April 13, 1915, and has ever since remained due and unpaid, except for the partial payment thereof that has been affected by the sale of the stock standing in his name on the books of the Mobile Towing & Wrecking Company, as hereinafter shown. Said Hartwell owned and there stood in his name on the books of the respondent corporation 199 shares of the capital stock of the Mobile Towing & Wrecking Company, and the value of the entire stock that so stood upon the books of respondent in the name of said Hartwell was much less than the amount of his indebtedness to it. On May 23, 1916, this respondent demanded payment of said indebtedness of said Hartwell, and notified him that said stock would be sold at public outcry on June 26, 1916, for the enforcement of the lien of said respondent thereon. In the meantime said Hartwell paid no part of said indebtedness, and that this respondent, on June 26, 1916, sold said 199 shares of stock, including the 60 shares owned by complainant, at public auction to the highest bidder (here follows the notice), and at such sale this defendant was the highest bidder, and became the purchaser of said stock and is the lawful owner thereof.</p>

<p>1. Sales <&wkey;176(4), 267 — Warranty — Sale Subject to Inspection.</p> <p>Whore defendant agreed to sell hoisting engine of certain type and capacity “subject to inspection,” and plaintiff wrote that a third person had gone to inspect the engine, and a week later wrote, ordering it to be shipped, and it was shipped in reliance on presumption that it had been inspected, plaintiff was estopped to claim that it was shipped under warranty or representations calculated to deceive.</p> <p>2. Sales <&wkey;168(l) — Inspection—Rights oe Parties.</p> <p>Agreement that buyer should inspect hoisting engine before shipment, and, if lie failed to do so, seller’s inspection should be final, applied at most to excuse defects of quality or condition, but did not permit shipment of a machine of different kind and size.</p> <p>3. Sales <&wkey;166(l) — Inspection—Rights of Parties.</p> <p>Where defendant agreed to sell hoisting engine of certain type and capacity, hut shipped a different sort, plaintiff was not bound to accept it, regardless of fact that defendant was not the manufacturer or did not have it in stock, and the parties were negotiating for a particular engine, unless he had knowledge of the difference or had led defendant to believe that he had inspected it.</p> <p>4. Evidence <&wkey;5(2) — Judicial Notice.</p> <p>Where defendant agreed- to sell a 6x10 hoisting engine, hut shipped an 8x10 log skidder, the court could not take judicial notice that they were practically the same.</p>

Bill in equity by James Duvall and another against Virginia Smith and another for partition. Decree for complainants, and respondents appeal. The bill alleged joint ownership between all the parties to lot 434 on South Bainbridge street; the entrance being specified. .

<p>Appeal from Circuit Court, Chambers County; S. L. Brewer, Judge.</p> <p>Ben Johnson was convicted of murder in the second degree, and he appeals.</p>

Action by the Seals Piano & Organ Company against N. J. Bell, as trustee, and others for damages for wrongfully suing out an attachment. Judgment for plaintiff, and defendants appeal. The facts sufficiently appear.

<p>Certiorari to Court of Appeals.</p> <p>Action by Hancock & Son against H. W. Pearson. To review a judgment affirming a judgment for plaintiff (77 South. 934), Pearson petitions for certiorari.</p>

<p>1. Appeal and Error <&wkey;l 012(1) — Findings by Court — Review.</p> <p>In suit on an itemized verified account under Code 1907, § 3970, where the evidence adduced before the judge trying without a jury was developed ore tenus, or partly so, the findings of the court will not be disturbed, unless plainly contrary to the great weight of the evidence, under Gen. Acts 1915, p. 824.</p> <p>2. Witnesses <&wkey;275(2) — Cross-Examination of Party — Scope.</p> <p>In action against a county to recover for publishing poll list, where plaintiff testified that the probate judge authorized him to nublish it, it was proper, on cross-examination, to ask whether the judge did not say he would personally pay for it, and whether he said the county would pay for it, the issue being as to authorization.</p> <p>3. Witnesses <&wkey;275(2) — Cross-Examination of Party — Scope.</p> <p>In action against county to Recover for publishing poll list, issue being whether plaintiff was authorized to publish it, it was error, standing alone and without statement of counsel, to Xiermit defendant to ask plaintiff whether a certain other paper did not also publish the list, as the fact of such publication alone would not prove that plaintiff was not first authorized to publish the list.</p> <p>4. Witnesses <&wkey;275(2) — Cross-Examination of Party — Answer—Explanatory Matter.</p> <p>In action against county to recover for publication of poll list, where defendant was permitted to ask plaintiff whether another paper did not also publish the list, it was proper to allow plaintiff to explain that the other paper used plaintiff’s forms; the question being whether plaintiff was authorized to publish the list, and whether he was the first authorized.</p> <p>5. Evidence <&wkey;83(4) — Presumptions—Regularity of Official Acts.</p> <p>Since Gen. Acts 1915, p. 242, § 14, authorized judge of probate to publish poll list in only one paper, the presumption is that a judge did not authorize two papers to publish such list.</p> <p>6. Evidence <&wkey;147 — Competency—Negative, Evidence.</p> <p>In action against a county to recover for publishing the poll list, it was competent for the clerk of the probate, court to testify that he _ did not know of a contract with plaintiff, or' that plaintiff received the list, and did not remember that the probate office received a copy of plaintiff’s paper containing the list.</p> <p>7. Newspapers <&wkey;l(l) — Publication of Poll List — Authorization.</p> <p>Under Gen. Acts 1915, p. 242, § 14, the judge of probate, and not the board of revenue or county commissioners, was authorized to have the poll list published, and when such authority was exercised by the judge as to one news-, paper, his powers become functus officio, and he could not. bind the county by authorizing a second paper to publish the list.</p> <p>8. Newspapers <&wkey;l(4) — Poll Lists — Publication — AUTHORIZ ATIO N.</p> <p>No formal act was necessary by a county judge to authorize a newspaper to publish the county poll list, under Gen. Acts 1915, p. 242, § 14.</p> <p>9. Newspapers &wkey;>5(l) — Publishing Poll List — Compensation.</p> <p>In a"etion against a county to recover for publishing poll list, question being as to whether plaintiff had been authorized to publish the list, statements of the probate judge touching his friendship for plaintiff, and the latter’s supposed financial embarrassment and the judge’s desire to aid, should not have been admitted over plaintiff's objection.</p> <p>10. Newspapers &wkey;>5(l) — Publishing Poll Lisi^-Authority — Evidence.</p> <p>For the purpose of showing whether a paper •was authorized to publish a poll list, instructions of the probate judge that the cost of the setting up of the poll list should be divided with another paper publishing such list were admissible, as was a question as to whether the judge gave the contract to both with understanding that they divide the fee.</p> <p>11. Newspapers <&wkey;5(l) — Publishing Poll List — Evidence.</p> <p>AVhere question was as to which of two newspapers had authority to publish poll lists, evidence that the claim of one paper was allowed while the judge of probate was living was admissible, and a statement of the judge that the claim of the other paper was valid was admissible to rebut it.</p> <p>12. Evidence <&wkey;245 — Admissions of Public Officials.</p> <p>Since a probate judge has authority, under Gen. Acts 1915, p. 242, § 14, to authorize publication of poll lists, his declarations are admissible to show who in fact has received such authority, and their admission in evidence does not offend Code 1907, § 4007, relating to admission in evidence of admissions of- officials offered by one affected by interest.</p> <p>13. Officers <&wkey;103 — Authority.</p> <p>While individuals are liable to the extent of the power they have apparently given their agents, a government is liable only to the extent of the power it has actually conferred upon its officers.</p> <p>14. Appeal and Error <&wkey;1031(3) — Prejudicial Error — Reversal—Admission of Evidence — Trial by Court.</p> <p>Where a cause is tried by the court without a jury, the admission of illegal evidence raises the presumption of injury, and requires reversal, unless the remaining evidence is without conflict and is sufficient to support the judgment.</p>

ord, Judge. Action by the E. E. Yarbrough Turpentine Company against Alice V. Taylor for damages for the institution and prosecution of an injunction suit. Judgment for plaintiff, and defendant appeals. Defendant, Mrs. Taylor, filed her bill in equity against E. E. Yarbrough and the Yarbrough Turpentine Company to enjoin them and their agents from entering upon certain lands (toi which they claimed to have a lease from complainant) and operating a turpentine business thereon.

Gamble, Judge. Action by J. G. Brown against Lowndes County for breach of a contract to build roads. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear from the opinion.

<p>Appeal from Circuit Court, Montgomery County; ’Gaston Gunter, Judge.</p> <p>Proceedings by the State of Alabama against R. F. Kolb and others. From a judgment for defendants, plaintiff appeals.</p>

Berry Glass was convicted of murder in the first degree, and he appeals. The following are the charges referred to in the opinion: (2) It is not necessary under the evidence in this case that defendant should have been actually in danger of death or great bodily harm at the time he killed Campbell, or that retreat would have really increased his peril in order for him to have been justfied in shooting Campbell.

<p>Appeal from Circuit Court, Marengo County; R. I. Jones, Judge.</p> <p>Action by E. G. Thomas against Robert Smith. Judgment for plaintiff, and defend-, ant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.</p>

<p>Appeal from Circuit Court, Covington County; A. B. Booster, Judge.</p> <p>Action by Ada Blackerby, formerly Ada Rambo, against the Eminent Household of Columbian Woodmen. Judgment for plain' tiff, and defendant appeals.</p>

M. Miller, Judge. Bill to foreclose a mortgage and for an accounting by Minnie Wollner against M. M. Kelly and another. Demurrer to hill overruled, and defendant Kelly app'eals.

S. Williams, Judge. Ejectment by H. W. Albrecht against John Bennett. Judgment for plaintiff, and defendant appeals. Plaintiff claimed through a deed from E. G. Bennett as trustee, and Annie and Jappie Bennett and a deed from Jerre Bennett, unmarried, to E. G. Bennett as trustee for Annie and Jappie Bennett, Ms granddaughters, and evidence showing title in Jerre Bennett. The charge referred to as having been given for plaintiff was the affirmative charge.

<p>Appeal from Circuit Court,. Butler County; A. E. Gamble, Judge.</p> <p>Action by Nettie B. Ward against the Sovereign Camp, Woodmen of the World. Judgment for plaintiff, and defendant appeals.</p>

Bill in equity by the State of Alabama, by and through the State Superintendent of Banks, against the Montgomery Bank & Trust Company, a domestic corporation, doing business in the city of Montgomery, Ala., to procure dissolution, and praying for the appointment of a receiver to take charge of its assets, collect its debts, pay its creditors, and make distribution among the stockholders of the remaining funds. From a decree appointing a receiver, respondent bank appeals.

<p>1. Appeal and Error <&wkey;690(4) — Scope — Record.</p> <p>In ejectment, where plaintiff introduced mortgage and foreclosure deed, and the bill of exceptions failed to set them out, or state their stipulations and recitals, the court could not determine whether defendant’s objections to their admission were well taken.</p> <p>2. Appeal and Error <&wkey;671(3) — Scope — Record.</p> <p>Where purchaser at foreclosure brought ejectment, and defendant relied on payment of the mortgage debt before foreclosure, the court on appeal could not pronounce erroneous a judgment for iMaintiff, where the record failed to show date of foreclosure, and the bill of exceptions did. not contain all of the evidence.</p> <p>3. Appeal and Error <&wkey;1051(l) — Harmless Error.</p> <p>Erroneously permitting party to testify to agreement with other party’s deceased husband was harmless, where same testimony had previously gone in without objection.</p>

Ejectment by John P. Reynolds and others against Sarah Trawick and others. From order setting aside judgment on directed verdict for plaintiffs, and granting new trial, plaintiffs appeal.

A. Pearce, Judge. Bill by the Moore-II^ndley Hardware Company and others against W. T. Middlebrooks and others. From a decree overruling demurrers to the bill as amended, defendants appeal.

L. Sowqll, Judge. Suit in equity by S. W. Faught against B. D. Leith and others. From a decree for respondents, complainant appeals. Appellant is the owner of the surface of lots 13 and 14 in block 127, in the town of Carbon Hill, Ala., and filed this bill against appellees, B. D. Leith and others, to enjoin said respondents from operating or in any manner excavating underneath said lots for the purpose of removing coal therefrom.

E. Gamble, Judge. Action by J. Lee Long against John E. Clark and others. From judgment rendered, plaintiff appeals. The appellees, John F. Clark and John F. Clark & Co., were, at the time of the bringing of this suit, nonresidents of the 'state of Alabama. John F. Clark was a member of the firm of John F. Clark & Co., a partnership whose place of business was in New Orleans, in the state of Louisiana.

M. Miller, Judge. Action by the Western Railway of Alabama against J. W. Collins, Jr. From a judgment for defendants, plaintiff appeals. Transferred from Court of Appeals under section 6, p. 449, Act of April 18, 1911.

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Action by the Citizens’ Light, Heat & Power Company and others against the National Surety Company on an injunction bond. Judgment for plaintiffs, and defendant appeals.</p> <p>The facts sufficiently appear from the opinion. The following charges were refused to defendant:</p> <p>(7) You should not consider the amount which Doherty & Co. agreed to pay for the stock in question as any evidence of the market value of the property.</p> <p>(8) You should not consider the amount which Tillis paid or agreed to pay for the stock in question as any evidence of the market value of the stock in question.</p> <p>(9) I charge you that neither the contract between Rice and Doherty & Co., nor the contract between Rice and Tillis, is any evidence of the market value of the stock involved in this suit.</p> <p>(10) Neither the contract between Doherty & Co. and Rice, nor the contract between Tillis and Rice, is evidence of the market value of the capital stock of the Citizens’ Light, Heat & Power Company, alleged to have been acquired by the said Richard Tillis.</p> <p>(5) If you believe from the evidence that the depreciation in the value of the stock subsequent to the suing out of the injunction complained of, if there was any such depreciation, was due to the fact that the customers of the Citizens’ Light, Heat & Power Company were diverted and supplied by the new plant built by Tillis, and the Citizens’ plant had been shut down by reason of it, you should return a verdict for defendant.</p> <p>(6) There is nothing in the bond sued upon in this case which prevented the Citizens’ plant from being operated in the usual and ordinary way, and if you are reasonably satisfied from the evidence that there was any depreciation in the value of the stock in question, and that that depreciation was proximately caused by the shutting down of the'Citizens’ plant, then I charge you plaintiff cannot recover anything more than nominal damages in this case.</p>

<p>1. Action <&wkey;48(2) — Joinder oe Causes.</p> <p>A count to recover statutory penalty under Code 1907, § 6035, for cutting trees or saplings, and a count for trespass as for injury to the land by cutting trees, may be joined in one action.</p> <p>2. Pleading <&wkey;248(l) — Amendment.</p> <p>Where there was no departure nor prejudice by substitution for defective counts so as to allege the same matters effectively, it was not error to permit amendment under Code 1907, § 5367.</p> <p>3. Pleading <&wkey;252(l) — Amendments Pending Trial — Effect.</p> <p>Where original complaint was defective, a proper amendment setting up no new cause of action as to which the original complaint did not stop the running of the statute of limitations related back to time of filing original complaint in view of Code 1907, § 5367.</p> <p>4. Principal and Agent &wkey;>159(l) — Torts of Agent — Cutting Trees — Penalties.</p> <p>No recovery can be had of penalty, under Code 1907, § 6035, for cutting trees, from one whose servants or agents cut the trees, where such person did not authorize the cutting or have knowledge or notice of it until long after it was done, since for the penalty to be recoverable the cutting must have been done “knowingly and willfully.”</p> <p>5. Trial <&wkey;267(2) — Instructions — Bad Form.</p> <p>A requested instruction, if bad in form, is properly refused, though a charge on the subject should have been given.</p> <p>6. New Trial <&wkey;38 — Grounds.</p> <p>Error in failing to give proper affirmative charge as to one count, when properly assigned, is ground for new trial.</p>

Bill by B. C. Gray against P. B. Bernheimer for an accounting and the cancellation of a mortgage, with offer to do equity. Prom a decree overruling demurrers to the bill, respondents appeal. The bill is as follows: That on the 29th day of January, 1907, orator borrowed from the First National Bank of Montgomery $2,000, for which he gave said bank his note due on the 4th of December, 1907, for $2,160, due and payable at said bank in the city of Montgomery.

<p>1. Chattel Mortgages <&wkey;172(2) — Deeense —Rescission and Fraud — Statute.</p> <p>Under Code 1907, § 3791, providing what may be pleaded in detinue by a mortgagee or vendor, in detinue for the recovery of a mare sold to defendant, the defense of rescission of the contract of purchase, for the price of which the mortgage on which the suit was founded was executed, was available to defendant.</p> <p>2. Sales <&wkey;38(l) — Misrepresentations — Rescission — Statutes.</p> <p>Under Code 1907, § 4298, providing that misrepresentation of a material fact constitutes fraud, where defendant told plaintiff he wanted a gentle horse suitable for a woman to drive, and plaintiff said he had such a horse, and exhibited a mare, representing her to be gentle and suitable for a woman to drive, and defendant, relying on such representations, took the horse and executed a note and mortgage in payment, but plaintiff’s representations as to the gentle character of the horse, etc., were false to his knowledge, defendant, on discovery of the horse’s true character, was entitled to rescind his purchase.</p> <p>3. Sales <&wkey;124 — Rescission—Restoration oe Goods.</p> <p>To rescind a sale of goods for fraud or breach of warranty, an offer to return the goods within a reasonable time after discovery of the fraud or breach is as effectual to rescind the contract as if the seller had accepted it.</p>

<p>Appeal from Circuit Court, Walker County ; J. J. Curtis, Judge.</p> <p>Action by Sam Clark against the Choctaw Mining Company. Judgment for defendant, and plaintiff appeals.</p>

P. Stiles, Judge. Proceedings in probate court by H. M. Hartón against Charles B. Powell, guardian, to effect a settlement. From decree settling the guardian’s account, Hartón appeals.

<p>1. Negligence <&wkey;101 — Injuries to Servant — Contributory Negligence — Federal Employers’ Liability Act.</p> <p>In actions brought .under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-S665]), contributory negligence is not a complete defense, but is only considered by way of reduction of damages.</p> <p>2. Pleading <&wkey;194(l) — Contributory Negligence — Pleas in Bar — Demurrer.</p> <p>In action under federal Employers’ Liability Act, providing that contributory negligence is provable, only to Teduce damages, demurrer to pleas in bar, which were in substance pleas of contributory negligence, should have been sustained.</p> <p>3. Master and Servant <&wkey;262 (4) — Federal Employers’ Liability Act — Contributory Negligence — Pleas in Bar.</p> <p>In action under federal Employers’ Liability Act, pleas that plaintiff on cars making a gravity switch knew that there probably were cars on the switch, and that it was his duty in the dark to go at a lesser speed, etc., were pleas of contributory negligence, and not assumption of risk, and were demurrable.</p> <p>4. Master and Servant <&wkey;285(ll) — Injuries to Servant — Cause oe Injury — Question eor Jury.</p> <p>Whether brakeman falling under wheels of cars, making a gravity switch in the dark, fell off a car, or was thrown off by sudden impact with stationary cars, held, under the evidence, for the jury.</p> <p>5.. Master and Servant <&wkey;286(34) — Injuries to Servant — Negligence oe Master— Question eor Jury.</p> <p>Whether a brakeman riding on the leading car of a string, making a gravity switch in the dark, was negligent in allowing a collision with a stationary car, held, under the evidence, a question for the jury.</p> <p>6. Master and Servant <&wkey;295(4) — Assumption oe Risk.</p> <p>An instruction that, if the jury believed that a servant assumed all the risks arising out of the conduct of the work in the manner which defendant’s witnesses testified switching operations were conducted at such station, and if he was aware of the manner of conduct of such operation he could not recover, was erroneous as comprehending risk of negligent discharge of duty by a fellow servant.</p> <p>7. -Master and Servant <&wkey;286(34) — Injuries to Servant — Negligence—Question eor Jury.</p> <p>Whether one in charge of gravity.switch of a string of cars in the dark was negligent in telling brakeman operating the string that there was a stationary car near the platform, when in fact the car was 100 feet nearer, whereby a collision occurred, held, under the evidence, for the jury.</p>

E. Blackwood, Judge. Al. Henry Vaughan was convicted of .murder in the second degree, and he appeals. Appellant and his father, Ake Vaughan, were jointly indicted by the grand jury of Blount county for the murder of one Richard Stephens. Appellant was separately tried and convicted of murder in the second degree; his punishment fixed at 21 years and 8 months. From the judgment of conviction, he prosecutes this appeal.

<p>Appeal from Circuit Court, Cullman County ; R. C. Brickell, Judge.</p> <p>Bill by Mary E. Martin against W. J. Copeland and others. Decree for complainant, and defendants appeal.</p>

<p>Appeal from Circuit Court, Etowah County; J. E. Blackwood, Judge.</p> <p>Action between Willie, Walden, as administratrix, and Dr. J. .E. Leach. Judgment for Leach, and Walden appeals.</p>

W. Haralson, Judge. Bill by Julius B. Cooper and others against Joseph Cooper. From decree rendered respondent appeals.

<p>Appeal from Probate Court, Etowah County; D. L. Herzberg, Judge.</p> <p>Suit by Willie Darrow against Dena L. Darrow. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Quieting Title &wkey;>12(9) — Scrambling Possession.</p> <p>Suit to quiet title is not maintainable by one whose possession of the land in controversy is not a peaceable one, but has been acquired by force or threats, and is at the time of suit disputed and is at best a scrambling possession.</p> <p>2. Specific Performance &wkey;>94 — Default of Complainant.</p> <p>Complainant cannot maintain suit to enforce a contract to sell land, where without legal excuse he declined to perform his part of the contract before, the sale was canceled by defendant and land resold.</p>

Petition for certiorari by the City of Birmingham to review the opinion of the Court of Appeals in the case between the City of Birmingham and I-I. W. Collins (77 South. 60), affirming a judgment against the city.

<p>1. Execution <&wkey;249, 275(3) — Sale — Vacation-Title oe Purchaser. '</p> <p>A mere irregularity in an execution sale, such as failure to give statutory notice of time and place, will not authorize vacating a sale, nor render defective a purchaser’s title.</p> <p>2. Ejectment <&wkey;86(l) — Evidence — Prima Facie Right oe Recovery.</p> <p>To show a prima facie right of recovery in ejectment, plaintiff must introduce in evidence a regular chain of title back to some grantor in possession, or tó the government.</p> <p>3. Ejectment <&wkey;95(l) — Evidence — Prima Facie Right oe Recovery.</p> <p>In a suit in nature of ejectment, evidence held sufficient to establish a prima facie right of recovery in plaintiff.</p> <p>4. Corporations <&wkey;672(4) — Foreign Corporations — Actions—Pleading.</p> <p>The fact that plaintiff, a foreign corporation, has not complied with the laws of the state as to doing business therein, should he pleaded by direct averment, and not by way of implication.</p> <p>5. Corporations <&wkey;661(l) — Foreign Corporations — Actions—Right to Sue.</p> <p>A corporation created in another state may sue in the courts of this state.</p> <p>6. Corporations <&wkey;661(4) — Foreign Corporations — Suit as Act oe Business.</p> <p>Institution and prosecution of a suit by a foreign corporation, without more, is not a prohibited act of business in the state, and action may be brought by it without having a place of business and an authorized agent in the state.</p> <p>7. Corporations <&wkey;514(2) — Actions—Plea oe Nul Tiel Corporation.</p> <p>The plea of nul tiel corporation is a good plea in bar.</p> <p>8. Corporations &wkey;>517 — Actions—Plea oe Nul Tiel Corporation — 'Verification.</p> <p>Under Code 1907, § 3969, providing that when suit is brought by a corporation plaintiff need not prove its existence unless denied by verified plea, the plea of nul tiel corporation must be verified, and failure to verify renders the plea subject to demurrer.</p> <p>9. Pleading &wkey;>355 — Motion to Strike — Unverified Plea.</p> <p>A plea may he stricken only in the cases specified by Code 1907, § 5322, which does not specify want of verification, and hence a motion to strike is not an appropriate method for testing the sufficiency of an unverified plea.</p> <p>10. Appeal and Error <&wkey;1042(l) — Reversal — Prejudicial Error — Striking Out Pleas.</p> <p>It cannot be said that striking out defective pleas, which were capable of amendment, is not prejudicial to a defendant, and for error in so doing, and not putting plaintiff to demurrer, thereby withholding opportunity to amend to meet the valid objections, a judgment for plaintiff must be reversed.</p>

Lawrence 1-Ierber.t was convicted of seduction, and he appealed to the Court of Appeals, .which affirmed the conviction (77 South. 83), from which he brings certiorari.

<p>Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.</p> <p>Bill by J. T. McLaughlin against Annie McLaughlin to annul a marriage. Decree for defendant, and plaintiff appeals.</p>

Merrill, Judge. Original bill in equity by the Profile Cotton Mills against the Calhoun Water Company. Decree for defendant dismissing the suit and complainant appeals.

A. Sharpe, Judge. Action by A. A. Vines, as administrator, against the Continental Casualty Company. Judgment for plaintiff, and defendant appeals. Most of the facts sufficiently appear. The assignments of error referred to in the opinion are as follows: (2) Overruling objections of appellant to the following question and answer directed to the witness Emma Love: “Q. How much was Love’s average monthly wages?

Pugh, Judge. Action by E. S. Renfroe against Collins & Co., a partnership, for damages for the death of James Renfroe. Judgment for defendant, and plaintiff appeals. The defendant filed the following pleas, which are directed to be set out: (1) Not guilty.

Action by Elijah Thomas against the Mobile Light & Railroad Company. Judgment for plaintiff, and defendant appealed to the Court of Appeals, which affirmed the judgment (77 South. 463), and defendant brings certiorari. Judgment of Court of Appeals

<p>1. Landlord and Tenant c&wkey;290(3) — Unlawful Detainer — Title — When Relevant.</p> <p>Under Code 1907, § 4271, providing that in unlawful detainer the state or merits of the title cannot be inquired into, but that all legal and equitable defenses may be had against a recovery for damages or for the unlawful detention of the land, inquiry into the title cannot be had to defeat the plaintiff’s right to recover possession.</p> <p>2. Trial <&wkey;48 — Offer of Evidence — Necessity for Stating Purpose.</p> <p>In unlawful detainer action, conceding that evidence as to title is admissible in diminution of damages, there was no error in excluding such, evidence where not limited to that purpose when offered, in view of Code 1907, § 4271.</p> <p>3. Appeal and Error <&wkey;1033(5) — Harmless Error — Instructions.</p> <p>In view of Code 1907, § 4273, fixing the damages for the unlawful detention of land at double the amount of the annual rent agreed upon by the parties, the defendant in unlawful detainer action cannot complain that the court instructed the jury "to find $100 for the detention, where the agreed annual rent was $100, and the jury found less than double the same.</p> <p>4. Principal and Agent &wkey;>21 — Relation-Proof by Agent.</p> <p>An agent can testify as to the fact of the agency.</p> <p>5. Appeal and Error &wkey;>1051(3) — - Harmless Error — Evidence.</p> <p>In unlawful detainer action, where defendant admitted that he received all notices required, it was harmless, if error, to permit plaintiff’s son to testify that he made a demand on defendant as agent for plaintiff.</p>

<p>1. Master and Servant <&wkey;330(2) — Injuries to Third Persons.</p> <p>In action for killing of cbild by collision with defendant’s automobile, on the issue whether the boy driving the car at the time was running it with the authority or consent of defendant, testimony that the boy had been seen_ several times operating the car was not objectionable because not confined to the occasion.</p> <p>2. Master and Servant &wkey;s332(4) — Requested Instructions —■ Misleading Instructions.</p> <p>In such action, a requested charge that, if the jury believed that the boy had never before operated the automobile of the defendant with his consent, to find for defendant was misleading, because operation with defendant’s knowledge, though without his actual consent, might indicate ultimate consent.</p>

<p>Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.</p> <p>Action by Wade C. Welch against the Evans Bros. Construction Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.</p> <p>Action by J. P. Johnson against L. A. De Hart. Judgment for plaintiff, and defendant appeals. -Transferred from Court of Appeals under Acts 1911, p. 449, § 6.</p>

<p>Appeal from Circuit Court, Lawrence County; R. C. Briekell, Judge.</p> <p>Action by L. W. Norton against Jake Alexander. Judgment for defendant, and plaintiff appealed. Transferred from the Court of Appeals under Act April 18, 1911, p. 449, § 6.</p>

<p>1. Adoption <&wkey;16 — -Restoration oe Adopted Child.</p> <p>In a bill to restore an adopted child to its natural parents, the court, having due regard for that parental love which covers a multitude of shortcomings, is clothed with a sound discretion to grant such relief as the best interests of the child.may demand.</p> <p>2. Adoption <&wkey;16 ■ — Restoration — Discretion oe Court.</p> <p>Although a child has been adopted by proceedings in probate court under Code 1907, § 5202, a court of equity, its jurisdiction being properly invoked, exercises a free discretion in disposing of the child for its own benefit and welfare.</p> <p>3. Adoption <&wkey;16 — Restoration—Consent oe Parents.</p> <p>In bill for restoration of a child to its natural parents, adoption proceedings had by consent and request of the parents is not without weighty consideration.</p>

<p>Appeal from Circuit Court, Madison County; R. C. Brickell, Judge.</p> <p>Assumpsit by the Murphree Insurance Agency against William Pinnington. Judgment for defendant, and plaintiff appealed. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6.</p>

<p>Appeal from Circuit Court, Hale County; B. M. Miller, Judge.</p> <p>Action by S. G. Halladay against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Act April 18, 1911, p. 449, § 6.</p>

Action by Agnes Gerald, pro ami, against John Patton, Jr. Judgment for plaintiff. In aid of such suit a writ of garnishment was sued out against A. E. Walker, as Superintendent of Banks. Prom a judgment discharging the garnishee, the plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

<p>1. Appeal and Error <&wkey;035(l)— Record — Decisions Reviewable — Finality of Determination.</p> <p>Where the record shows no final judgment which wonld support an appeal under Oode 1907, § 2837, -providing for appeals from final judgments or decrees of the chancery, circuit, or other courts, the appellate court is without jurisdiction to consider the errors assigned.</p> <p>2. Appeal and Error <&wkey;78(3) — Decisions Review able — Appeal from Ruling! of Demurrer.</p> <p>The law does not authorize an appeal from a judgment sustaining a demurrer before final judgment.</p>

<p>1. Landlord and Tenant <&wkey;152(3) — Duty to Repair — Actions for Damages.</p> <p>A covenant in a lease of a storehouse, whéreby lessor agrees to repair and stop leaks, will support an action by the lessee against the lessor for damages on account of failure to stop leaks, notwithstanding a preceding covenant whereby the lessor is exempted from liability for damages on account of defects, or from rain, wind, or other cause; it being necessary to construe the lease as a whole.</p> <p>2. Appeal and Error &wkey;>1039(l) — Harmless Error — Pleading—Time to Prepare.</p> <p>In a lessee’s action for damages for lessor’s breach of covenant to maintain premises in repair, the action of the court in refusing defendant time to prepare demurrers, and in overruling them when orally stated, and in denying time to prepare written pleas, compeHing defendant to plead in short by consent, while irregular, did not injure defendant; he not having shown diligence in preparing pleadings, and having had every advantage he could have had if the pleadings had been written out in full.</p>

<p>Appeal from Circuit Court, Etowah County ; John H. Disque, Judge.</p> <p>'Suit by Elizabeth Gidley against J. T. Gidley and others. From judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.</p>

<p>Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.</p> <p>Bill by J. Henry Davidson and others against W. B. Rice to determine title to land. Decree for respondent, and complainants appeal.</p> <p>The decree is as follows:</p> <p>The cause was submitted and held for decree in said case upon the pleadings and proof as noted by the register, and now upon consideration thereof, the court is of the opinion that the demurrers filed by the respondent to thei original bill are well taken, but it is true that in the note of submission the demurrers are not made. Upon consideration of all the evidence, however, the court finds that complainants are not entitled to recover as the_ bill is now framed, for the very reasons specified in said demurrers, to wit, ail of the complainants are not in possession of all of the land, all of the complainants do not have title to all of the land, according to complainants’ own testimony each complainant claims to have title to and be in possession of a separate and distinct part of the land; therefore they cannot recover under this bill. 'It is therefore ordered, adjudged, and decreed by the court that defendant’s demurrers be, and the same are hereby, sustained, and the bill of complaint is dismissed out of this court, hut without prejudice to each complainant to bring his appropriate bill to quiet the title to his individual land if he sees proper to do so. It is further ordered, adjudged, and decreed that complainants' be taxed with the costs of this suit, for which let execution issue.</p>

J. Curtis, Judge. Action by the C. S. Huffman Auditing Company against the United Brothers of Friendship and Sisters of Mysterious Ten and another. Judgment for plaintiff, and defendants appeal. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6.

<p>Appeal from Circuit Court, Franklin County; C. P. Almon, Judge.</p> <p>Bill by George W. Hargett against Daniel W. Hargett and others for the sale of land for division. Decree for respondents, and complainant appeals. '</p> <p>The defense was that before tbe bill was filed E. E. Hargett and wife, from whom complainant claims to bave derived title to a one-third interest in the lands described, had executed and acknowledged a deed conveying all their interest in said lands to Robert and Hattie Devaney, and that at the time of the execution of the deed to complainant said E. E. Hargett and wife had no right, title, or interest in said lands to convey.</p>

C. Brickell, Judge. Richard Madry was convicted of murder, and he appeals. The party killed was Bob Odom, and the killing appears to have occurred near the lot or barn of defendant, at least somewhere on the place which belonged to defendant, and on which he and . Odom were farming on shares.

<p>Appeal from Circuit Court, Randolph County ; Thomas W. Wert, Judge.</p> <p>Action by Green & Tates and others against Eldred C. Bass. Judgment for plaintiffs, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.</p>

<p>1. Pleading <&wkey;8(10) — Conclusion — Discharge in Bankruptcy.</p> <p>In assumpsit, plaintiff’s replication to defendant’s plea of discharge .in bankruptcy, failing wholly to allege the facts on which plaintiff relied cu sustain bis conclusion that his lien in attachment was acquired more than four months prior to the bankruptcy, was defective.</p> <p>2. Bankruptcy <&wkey;438 — Discharge — Failure to Schedule Asset.</p> <p>A debtor’s fund in bank, not scheduled as an asset in his bankruptcy proceedings, nevertheless passed to him on his discharge.</p> <p>3. Appeal and Error <&wkey;1040(8) — Harmless Error — Demurrer to Replication.</p> <p>Sustention of demurrer to a replication was harmless to plaintiff, where the question to which the replication was addressed was fully contested in Hie evidence, without any objection that the evidence was without the issues.</p> <p>4. Evidence <&wkey;345(2) — Records — Bankrupt’s Schedule — Amendment.</p> <p>In assumpsit, wherein defendant pleaded a discharge in bankruptcy, the referee’s notation, on a copy of the transcript of his docket transmitted to the court of bankruptcy, of the allowance of amendment of defendant’s schedule by including plaintiff as a creditor, was sufficient to admit in evidence certificate from the referee showing the allowance of the amendment of schedule after suit brought by including plaintiff as a creditor, also to admit a copy of the transcript of the referee’s docket; the schedule constituting a part of the record to be transmitted to the bankruptcy court, and formal judgment entry by the referee allowing the amendment, or a certified copy, not being the only competent evidence of its allowance.</p> <p>5. Bankruptcy t&wkey;425 — Knowledge of Proceedings — Bar.</p> <p>If a creditor had knowledge or notice, however acquired, of proceedings in bankruptcy against bis debtor in time to prove his claim, his claim, whether scheduled or not, was barred by the debtor’s discharge.</p>

Locke, Judge. Bill by Lucy M. Hayden against Mary B. Russell and others, to wind up a partnership and for other relief. From a decree overruling demurrers to the bill respondents appeal. The bill, after stating the parties, alleges: That Mary B. Russell was appointed executrix of the estate of Ralph M. Russell, whose widow she is, and that Ralph L. Russell is the son and only heir at law of the said Ralph M. Russell.

<p>Trial c&wkey;ll(2) — Pleading — Effect of Transfer to Equity.</p> <p>Acts 1915, pp. 830-832, as to transfer to the equity side of cases involving equitable defenses, and providing that 30 days after transfer plaintiff shall make “such amendments to the pleadings as may be necessary to confox-m to the appropriate pleadings in the equity court,” does not require complainant, upon such a transfer, to answer the equitable defense or defenses invoked by defendant in order to secure such transfer; but complainant need do no more than present his legal demand, so as to show a prima facie right to recover, thereon, and respondent must plead and pi-ove the equitable matters and defenses relied on.</p>

<p>Detinue <&wkey;22 — Plaintiffs’ Title — Direction of Verdict.</p> <p>In detinue for a mule claimed by defendant as assignee under a mortgage, where there was no evidence that such mortgage had been paid off and discharged, and it appeared that the transfer to defendant was legal, verdict for defendant was properly directed.</p>

<p>Appeal from Circuit Court, Etowah County; J. E. Blackwood, Judge.</p> <p>Suit between Leila Ford ahd Jesse B. Ford. From decrees and orders for the former, the latter appeals.</p>

<p>1. Master and Servant &wkey;>286(l) — Injury to Servant — Submission to Jury.</p> <p>In action against railroad for injuries sustained by an emplo-yé, the question of whether the railroad was negligent was properly submitted to the jury, although evidence thereon was not conclusive.</p> <p>2. Master and Servant <&wkey;285(l) — Injury to Servant — Proximate Cause — Submission to Jury.</p> <p>In an action against railroad for injuries to an employs, the question of whether negligence was proximate cause of injury was properly submitted to jury, although evidence thereon was not conclusive.</p> <p>3. Master and Servant <&wkey;289(37) — Injury to Servant — Contributory Negligence— Submission to Jury.</p> <p>In an action against railroad for injury sustained by employs while riding on the wing of a dirt spreader, the question of whether employs was guilty of contributory negligence in riding on the wing of the spreader was properly submitted to the jury, where he had been ordered to áo ride by his superintendent.</p>

C. Brickell, Judge. Action by D. C. Finney against James A. Baker. Judgment of inferior court for plaintiff was quashed by the circuit court on defendant’s petition for certiorari, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

P. Almon, Judge. Rufus Pinson was convicted of murder, and appeals. The following are the charges refused to defendant: (O) If there is one single fact proved to the satisfacti£m_pf the jury which is inconsistent with the defendant’s guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit.

<p>Appeal from Circuit Court, Etowah County; J. E. Blackwood, Judge.</p> <p>Suit by Mattie Fail, as administratrix, and another, against the Gulf States Steel Company and another. From judgment for plaintiffs, defendants appeal.</p> <p>Suit by Mattie Fail, as administratrix, and A. J. Wheeler, as administrator of the estate of L. F. Fail, deceased, against the Gulf States Steel Company, a body corporate, and A. M. McEntyre, to recover damages for the death of plaintiffs’ intestate, an employé of defendant Gulf States Steel Company, alleged to have been the result of the negligence of defendant McEntyre, who had been intrusted with superintendence, while in the exercise of his duties in the employ of said Gulf States Steel Company. There was but a single count in the complaint, which reads as follows:</p> <p>“Plaintiffs, Mattie Fail, as administratrix of the estate of L. F. Fail, deceased, and A. J. Wheeler, as administrator of the estate of L. F. Fail, deceased, claim of the defendants, Gulf States Steel Company, a body corporate, and A. M. McEntyre, $50,000 damages, for that on, to wit, October 10, 1916, plaintiffs’ intestate, while in the employment of the defendant said Gulf States Steel Company, and while engaged in the active performance of the duties of said employment, was killed in the county of Etowah, state of Alabama, as follows: A concrete structure fell upon intestate and killed him. Plaintiffs aver the death of their intestate was proximately caused by the negligence of the defendant McEntyre, a person in the service or employment of the defendant, Gulf States Steel Company, who had superintendence intrusted to him, whilst in the exercise of such superintendence, which, negligence consisted in this, said McEntyre negligently caused said concrete structure to fall upon the intestate of the plaintiffs.”</p> <p>The cause was tried upon the general issue, and special pleas of contributory negligence. Demurrers were interposed to the complaint by the defendants separately and severally, which were overruled. From a judgment for the plaintiffs, the defendants prosecute this appeal, and assign errors separately and severally.</p>

Lee Cowart was convicted of the statutory offense of embezzlement, and from a judgment of the Court of Appeals (79 South. 398) he petitions for certiorari.

M. Miller, Judge. Claim suit by Walton H. Hill against E. O. Rentz. Judgment for defendant, plaintiff in attachment, and claimant appeals. This cause was submitted, and considered under rule 46 of this court (178 Ala. xix, 65 South, vii), and the opinion was delivered by Mr. Justice MAYFIELD: Statement of the Case. This is a claim suit to try the right of property to 15 mules.

L. Brewer, Judge. Statutory claim suit by J. C. Jackson against Wilson Bros. Judgment for claimant, and plaintiff appeals. Transferred from the Court of Appeals under section 6, p. 449, Act of April 18,1911.

<p>Appeal from Circuit Court, Walker County ; J. J. Curtis, Judge.</p> <p>Action by E. H. Clem against B. B. Ptasten. Judgment for plaintiff, and defendant appeals. Transferred from the court of appeals under section 6, Acts 1911, p. 449.</p>

<p>Appeal from Circuit Court, Montgomery County;- Leon McCord, Judge.</p> <p>Action by S. E. Centerfit against Adolph .Weil. 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, Jackson County; W. W. Haralson, Judge.</p> <p>Bill by Ruth Coffey, by guardian, against J. E. Owen. Decree for complainant, and defendant appeals.</p>

<p>Limitation of Actions &wkey;>167(2) — Bar of Debt as Affecting Mortgage.</p> <p>In tbe absence of some peculiar circumstances imputing laches to the mortgagee or his assignee, a .bill to foreclose a mortgage brought ■within 20 years after its date may be maintained, though an action at law on the debt secured would be barred by the statute of limitations.</p>

<p>Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.</p> <p>Suit in equity by Mrs. Arlie L. Toney against Mrs. Carrie E. Dewey. From a decree for respondent, complainant appeals.</p>

H. Alston, Judge. Ejectment by Hoyt B. Bachus and other's against J. \ an J. Smith. Judgment for plaintiffs, and defendant appeals. The following is charge 10 given for plaintiff: I charge you - that defendant in this suit is not entitled to hold any land that he is in possession of, to which he has not shown a paper title, unless he or his predecessors in title were in actual adverse possession of for more than ten years prior to March 1893.

<p>Appeal from Circuit Court, Morgan County; O. Kyle, Judge.</p> <p>Bill by W, G. Ralph against W. E. Lynne. From a decree granting an injunction pendente lite, defendant appeals.</p>

C. Brickell, Judge. Action by Mason Butner, by next friend, against the Huntsville Knitting Company. Judgment for plaintiff, and defendant appeals. Ap-pellee, a boy 16 years of age, sues to recover damages for injuries sustained by him while in the employ of appellant, which injuries resulted in the loss of his left arm. The machine on which appellee was injured is known as a wringer or extractor, and was used for wringing cloth or ribs in appellant’s plant.

<p>Appeal from Circuit Court, Calhoun County ; Hugh D. Merrill, Judge.</p> <p>13111 by Ross Blackmon against W. H. Johnson and another for an interpleader, and for other relief. From a decree overruling demurrers to the bill, respondents appeal.</p> <p>The allegations of the bill are that respondent and one Rutherford Dapsley, at the request of Thomas H. Owens, went to his place of residence and drafted the last will and testament of said man, which was delivered to orator, and was thereafter placed in the hands of the judge of probate of Cullman county, and after drafting the will, and in pursuance of instructions of Dr. Meharg and Mary J. Mount, orator and Lapsley brought into Anniston the sum of $2,395 in cash, the property of said Thomas H. Owens; that deposit was made in the First National Bank of Anniston of $1,197.50, said bank issuing a time certificate therefor, same being payable to the order of Thomas H. Owens, and that orator and Lapsley made a like deposit in like amount in the City National Bank, taking a certificate of deposit therefor, payable to the order of Thomas H. Owens; that thereafter Lapsley, acting for himself, and ostensibly as a friend to Mary J. Mount, induced said Owens to indorse to her the two certificates of deposit above described, and that said Lapsley and said Mount returned such certificates to the two hanks, ahd caused same to be canceled and annulled, and certificates from equal sums represented by the certificates of deposit to be issued by said banks to said Mary J. Mount. The originals are delivered to the court, and copies of the certificates issued to Mount are made exhibits to the hill. Later orator went out to the residence of said Thomas H. Owens and explained to him the force and effect of his conduct in indorsing certificate to said Mary J. Mount, and that then and there said Thomas H. Owens signed the document hereto attached in the presence of the witnesses therein named, and which document is made Exhibit O to the bill, and is as follows:</p> <p>In the presence of the undersigned witnesses, I, Thomas H. Owens, make this statement in regard to certain money heretofore given by me to my sister, Mary J. Mount, now deceased. At the time when the money was taken from my home for deposit in the banks of Anniston, it was my intention and I understood that the money was being given by me to my sister Mary J. Monnt, for her lifetime, to be used by her as she saw fit in taking care of me and herself, and the place, and there was never any intention on my part to give and transfer to her absolutely any of this money, or any certificates of deposits for the money, but only for her lifetime, and at her death to pass to my estate; any indorsement by me of any certificates of deposits for this money was made by me for this purpose only as above stated, and with this understanding.</p> <p>Signed by Thomas H. Owens, in the presence of four witnesses.</p> <p>The bill alleges the death of Mary J. Mount and that L. B. Liles has been appointed her administrator; it also alleges the death of Thomas H. Owens, and the appointment of W. H. Johnson and A. J. Skelton, as his administrators. The bill also alleges that Liles as administrator, as well as Johnson and Skelton as administrators, have each, acting in their capacity as administrator as such demanded that your orator surrender and deliver to them the above certificates of deposit, one claiming the same to be the property of Mary J. Mount, and the other claiming same to he the property of the estate of Thomas H. Owens. The bill further alleges how the certificates of deposit came into orator’s possession, and that the administrator of Mary J. Mount, and the administrators of Thomas H. Owens, respectively, are each threatening to sue for the possession, etc., of said certificates.</p>

H. Benners, Chancellor. Bill by the Woodlawn Lumber Company against S. P. King and others to enforce a materialman’s lien. Decree for complainant, and respondents appeal.

<p>Appeal from Circuit Court, Jefferson County; H. A. Sharpe, Judge.</p> <p>Proceeding by the City of Birmingham to assess property of the Sloss-Sheffield Steel & Iron Company. From a judgment sustaining the assessment on appeal to circuit court, the company appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; J. C. B. G-win, Judge.</p> <p>Action by Joe Crosby against the SlossSheffield Steel & Iron Company for damages for personal injury while in the employment of defendant. Judgment for plaintiff, and defendant appeals.</p> <p>Charge 1 is as follows;</p> <p>If plaintiff bad the choice of two ways in getting out of the mine, one of which was safe and the other dangerous, it was his duty to take the safe way.</p>

Action by Will Hubbard, pro ami, against tbe Caravella Shoe Company, for damages for personal injury while in its employment. From judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449.

L. Brewer, Judge. Suit by the Adams Hardware Company against H. A. Wimbish. Verdict and judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under Act April 18, 1911, p. 449, § 6.

L. Brewer, Judge. Detinue by the Adams Hardware Company against H. A. Wimbish for certain engines and machinery. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals uuder Acts 19Í1, p. 449, § 6.

<p>Appeal from Circuit Court, Hale County; Charles E. Waller, Judge.</p> <p>Action by J. B. Stiekney, as judgment creditor of Ira Nabors, by writ of garnishment, against L. & E. Lamar, to subject money or property in their hands to the satisfaction of his judgment. From an adverse judgment, plaintiff appeals. Transferred from Court of Appeals under section. 6, Acts 19H, p. 449.</p> <p>The garnishees answered orally, disclosing the following material facts: Nabors was indebted to the garnishee on and prior to July 17, 1914, as evidenced by waive note in the .sum of $792. On that day Nabors executed to him a conveyance of certain personal property, a part of his stock of merchandise, and including only the specified items which Nabors had selected as exempt to him; his declaration and claim of exemption having been duly made and filed in the probate office prior to said conveyance. The inventory value of the goods was $999, and the actual value about $540, and they were then and there delivered to the garnishee. The parties to this transaction did not comply with the provision of the Bulk Sales Act (General Acts 1911, p. 94), which declares that, in the absence of a compliance therewith, a sale of any portion of a stock of merchandise otherwise than in the usual course of business, or in the regular and usual prosecution of the seller’s ■ business, and a sale of the entire stock of merchandise in bulk, or substantially in bulk, shall be presumed to be fraudulent and void as against the creditors of the seller. This answer was controverted by plaintiff, the issues tendered being in substance: First, that the merchandise in question was worth more than $540, to wit, $1,000; and, second, that defendant in execution, Nabors, in making said conveyance, reserved a benefit to himself. These issues were determined adversely to plaintiff, and the cause was continued for judgment on the answer. Plaintiff thereafter moved for judgment on the answer, which was denied.</p>

Miller, Judge. Suit for trespass to realty by Press Burch-field against A. T. Danforth. There was judgment for defendant, and later an execution for costs was issued against plaintiff and levied upon certain land. Sale was had, and the land bought by defendant. Plaintiff’s motion to set aside and vacate sale granted, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

Action by the Newcomb Bros. Wall Paper Company against James H. Wiggins as sheriff, for failure to execute process and to seize property subject thereto. Transferred from the Court of App'eals under section 6, p. 449, Act of April 18, 1911. Judgment for defendant and plaintiff appeals. 'jChe facts sufficiently appear.

<p>1. Master and Servant i&wkey;259(5) — Employees’ Liability Act — Negligence—Sufficiency of Allegations.</p> <p>Counts of a complaint in an employé’s action for personal injnry based on the negligence of the employer’s superintendent under the second subdivision of the statute (Code 1907, § 3910) in failing to warn plaintiff that he had oonnected a belt with a pulley operating a spike roller and certain machinery of a cotton gin, not averring even in general terms any act of negligence on the part of the alleged superintendent with respect to his duty while so engaged, was subject to demurrer,</p> <p>2. Pleading &wkey;>8(17) — Conclusions — Employers’ Liability Act — Allegations of Negligence.</p> <p>A complaint under the Employers’ Liability Act (Code 1907, § 3910) may aver conclusions, but conclusions must ordinarily be accompanied with averments of fact whereon issues can be understood, joined, and tried.</p> <p>3. Negligence <&wkey;108(l) — Pleading.</p> <p>All negligence is not actionable, and pleadings, to be sufficient to state a cause of action grounded on negligence, must affirmatively show that negligence relied upon is actionable.</p> <p>4. Pleading <&wkey;8(17) — Conclusions—Negligence.</p> <p>Where pleadings as to negligence show a duty owed by defendant to the plaintiff and its breach to the plaintiff’s injury, very general averments of negligence will suffice, and they need not he but little more than conclusions, though the duty and its breach must be shown, but merely alleging that a given act was negligence or negligently done without more is not sufficient.</p> <p>5. Master and Servant <&wkey;259(5) — Employers’ Liability Act — Negligence of Superintendent-Sufficiency of Averments.</p> <p>Amended counts alleging the relation of master and servant and' the relation between the servant and the master’s superintendent, and charging that the alleged negligent person was intrusted with superintendence and was negligent in a specific matter, and that plaintiff’s injuries proximately resulted therefrom, and alleging a breach of the duty to warn or notify plaihtiff, were sufficient.</p> <p>6. Master and Servant <®=o279(6) — Injury to Servant — Evidence.</p> <p>In a servant’s action for injury to his hand from being caught in the spikes of a roller, part of a cotton gin, after the superintendent, without warning, had connected a belt with a pulley operating the roller, evidence that gins could be run with or without spike rollers, or that the gin breast could he raised by means of a button, was admissible on the issue of negligence and failure to warn plaintiff that the roller was in operation.</p> <p>7. Master and Servant <&wkey;281 (8) — Contributory Negligence — Evidence.</p> <p>Such evidence was also admissible on the issue of plaintiff’s contributory negligence.</p> <p>8. Trial <&wkey; 120(2) — Argument—Evidence.</p> <p>In a servant’s action against a company for personal injury, refusal to exclude part of counsel’s argument which said, “How easy it is for a corporation or an individual that employed men to have a set of technical rules by which it should be governed, and still let them go on and do the work in a different manner, and then go to the courthouse here and make defense in a different manner,” where there was no evidence of any specific rules of defendant, although there was evidence of certain instructions, was not reversible error.</p>

County; Hugh D. Merrill, Judge. Action by B. F. Meharg against the Alabama Power Company. From the judgment, rendered, plaintiff appeals, and the cause was-' submitted under rule 46 (175 Ala. xxi, 65-South. vii).

J'. Curtis, Judge. Action by T. O. Partridge against Richard Bates and others on breach of warranty. From a judgment for defendants, plaintiff appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

<p>Appeal from Oircuit Court, Jefferson County; Romaine Boyd, Judge.</p> <p>Assumpsit by D. F. Allen against Mrs. George Ella Stradford as administratrix. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals, under section 6, Acts 1911, p. 450.</p> <p>The plaintiff, a broker, sues for compensation for procuring a loan for defendant’s intestate. Counts 1 and 2 are for money due on account, and for work and labor done; count 3 declares upon a written agreement signed by the intestate, by which he authorized plaintiff to procure for him a loan of 82,850, at 7 per cent, on certain real estate, stipulating in material parts as follows:</p> <p>“I agree to furnish you at my own expense, a satisfactory abstract of title as soon as you have advised me of the approval of my application for the loan applied for, and if within * * * days thereafter you shall be ready to complete said loan, I agree to pay you for services rendered in that behalf, the sum of 8142.50. * * * I also agree to pay for the expense of the examination of abstract, and preparation of papers by an attorney to be selected by you for that purpose, the sum of 8-.”</p> <p>The count alleges that a breach of the contract that plaintiff did procure said loan for said Stradford pursuant to the terms of said written agreement by finding a person who was ready, able, and willing to make the said loan; * * * and that the funds for the purpose of making said loan were actually sent to the attorney, who was to pass on the title for lender at Birmingham, Ala.; and that the agreed compensation has never been paid. Demurrers were sustained to said count, and it was amended by adding the following:</p> <p>“Plaintiff further avers that he secured said loan for said Stradford in the sum of 82>850, within a reasonable time after the date of said contract, to wit, within four days thereafter, and plaintiff advised or informed said Stradford, or said Stradford otherwise had knowledge of the approval of his application for the loan applied for on' or before December 11, 1915, and plaintiff was ready to complete said loan within a reasonable time thereafter, to wit, on December 13, 1915.”</p> <p>The trial was had on the issues presented by counts 1, 2, and 3 as amended, with plea of the general issue interposed.</p>

<p>Appeal from Circuit Court, Monroe Goun-' ty; Ben D. Turner, Judge.</p> <p>Suit by Frank Boone and others against the Gulf, Florida & Alabama Railway Company. Demurrer to defendant’s cross-bill overrruled, and plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Monroe County ; Ben D. Turner, Judge.</p> <p>Bill by S. J. Byrd and others against Frank Boone and others. From the overruling of defendants’ demurrer to the bill, the defendants appeal.</p>

Miller, Judge. Claim by Y. Millitello to property on which execution was levied in aid of a judgment in favor of the B. F. Roden Grocery Company. Judgment for plaintiff, and claimant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

<p>Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.</p> <p>Action by W. M. McClain against De Kalb County. Judgment on directed verdict for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911, p. 449, § 6.</p>

E. Blackwood, Judge. Action by Robert J. Wheeler against R. O. Steading and others wherein plaintiff got judgment and defendants filed petition in certiorari to remove the cause to the circuit court, and plaintiff moves to dismiss th'e writ and to issue procedendo. From an order granting the motion, dismissing the writ and issuing procedendo, defendants appeal. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6.

<p>Appeal from Circuit Court, Jefferson County; H. A. Sharpe, Judge.</p> <p>Petition by the State of Alabama, on the relation of the City of Birmingham, for mandamus against the Board of Revenue of Jefferson County. Demurrer to the petition sustained and the application dismissed, and petitioner appeals.</p>

<p>Appeal from Circuit Oourt, Lauderdale County; C. P. Almon, Judge.</p> <p>Suit by Rosa Peters, as executrix, against Frank Rasch. From a decree for complainant, respondent appeals.</p> <p>The hill in this case was filed, by Rosa Peters, as executrix of the estate of Martin Specker, deceased, against Frank Rasch, and alleges, in substance: That Martin Specker died in 1904, leaving a last will, which had been duly admitted to probate, and under the terms of which complainant was appointed executrix of the estate. That in 1901 Lorenzo Specker died leaving a last will, which was admitted to probate in the same year, a copy of which is attached to the bill as an exhibit. Sections •2 and 4 of said will are as follows:</p> <p>“Second. I give to my wife, Catherine Speck-er, to have and to hold during the term of her natural life my homestead consisting of one hundred and sixty acres of land lying in the county of Lauderdale and state of Alabama, to wit, tíre northwest quarter of section 31, township 2, range 10' west, together with the appurtenances thereunto belonging, also all the live stock, grain, forage and everything belonging to the farm just as I leave it.</p> <p>“Said tract of land is the same on which my dwelling house is situated and now used by myself and wife as our place of residence. 1 also give to my wife, Catherine Specker, all the furniture, pictures, ornaments and other household goods which may be in said homestead at the time of my death.”</p> <p>“Fourth. I give, devise and bequeath to my son Martin Specker, the reversion or remainder of my homestead consisting of one hundred and sixty acres it being tbe northwest quarter of section 31, township 2, range 10 west, situated in Lauderdale county, Alabama, and ail profits, income, and advantages that may result therefrom, including stock, farming implements, etc., from and after tbe death of my wife, Catherine Specker, to have and to bold the same to him ¡and the said Martin Specker his heirs and assigns from and after the decease of my said wife to his and their use and behoof forever.</p> <p>It is further alleged: That, after tbe death of Lorenzo Speaker, bis widow, Catherine Specker, continued to operate the farm, consisting of the homestead, live stock, etc., as set out in paragraph two of the bill. That after paying the current expenses, and her own living expenses, she put the remainder into the farm property, until in the year 1906, when she decided to sell the remaining personal property belonging to the farm and rent the real estate. That in December, 1906, she had a sale of the live stock, farming utensils, and farm products belonging to the estate of Lorenzo Specker, and realized from the sale thereof the sum of $898.24. On the day of the sale she delivered the money to the respondent, Frank Rasch, directing him to place the same in the bank, and preserve it for tbe estate of Martin Specker, deceased. At tbe same time the said Catherine Specker turned over to the respondent 'the management of her business, including the renting of the homestead, together with the collecting of the rents, and constituted him as her agent. Respondent continued in possession and control of the money and lands from year to year, renting the lands and collecting the rents, and gave to the said Catherine Specker only a part of the' rents, which she used for her personal living expenses; the remainder he retained, by her instructions, together with the other money she had turned over to him, to be preserved for the estate of Martin Specker at her death. That Catherine ‘Speaker died in January, 1916, and that, after her death, complainant made demand on respondent for the funds above referred to, which respondent had and held for the benefit of said estate. That at first respondent admitted he had funds belonging to said estate, but after-wards stated he did not know about turning over the same to her, and has failed and refused to make an accounting of the same to complainant. Paragraph 5 of the bill is as follows:</p> <p>“Complainant is advised that she is entitled to the funds held by the defendant referred to above, and that she, as executrix of the estate of Martin Specker, deceased, has a right to demand an accounting and settlement of this fund by the defendant, and that she has a right to require him to pay over the remainder thereof to her as executrix of the estate of Martin Specker, deceased.”</p> <p>Tbe prayer of tbe bill is that respondent be required to make a full and complete accounting of tbe funds intrusted to him by said Catherine Specker, which grew out of the sale of the personal property, and the renting and management of the real estate referred to, and, further, that a reference be held to ascertain the amount due. Interrogatories were then filed to the respond-' ent, touching the matter of funds in his hands.</p> <p>The bill was demurred to; the assignments of demurrer taking the point that all the live stock, grain, forage, etc., belonging'to the farm, given to Catherine Spe'cker under the second paragraph of the will of Lorenzo Specker; created in the said Catherine Speck-er an absolute title to said personal property, and that the estate of Martin Specker, deceased, had no reversionary interest in said property under the terms of the will. There is also an assignment of demurrer that the, bill is without equity. A decree was entered overruling the demurrers, and from this decree the respondent prosecutes this appeal.</p>

<p>Appeal from Circuit Court, Blount County; O. A. Steele, Judge.</p> <p>Bill for absolute divorce by Lizzie Hudson against Cleveland Hudson. Decree for complainant, and defendant appeals.</p>

C. Crow, Judge. Action by L. E. Cook against F. Ferlesie and another on a contract. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

<p>Appeal from Circuit Court, Morgan County ; Thomas W. Wert, Judge.</p> <p>William D. Russell was convicted of murder, and he appeals.</p> <p>It appears that at the trial three jurors answered they had a fixed opinion against capital or penitentiary punishment, and the state waived cause for challenge, and the jurors were put upon venire to try defendant. Two other jurors being asked the same question answered in the affirmative, and the state challenged them for cause, and their names were not put upon the venire. Defendant excepted, insisting the state should be required to challenge each and every one so answering, or that it be required to waive all challenges of a similar character. The following is the excerpt from the oral charge of the court excepted to by defendant:</p> <p>Gentlemen of the jury, a man might be what people sometimes consider insane, and yet be legally responsible for the acts he commits. If a man has lucid intervals, and if that man during his lucid intervals commits a crime, and he knew that he was committing a crime, and knew the conditions surrounding Mm, and that he would be legally responsible, and his mind was not destroyed at that time that he had the lucid intervals, then, gentlemen of the jury, he can be held legally responsible for his acts, even though at other times he may be what is termed an insane person, or a person of un-sound mind. Now, gentlemen, it is not true that if a man is insane at one time he is -presumed to continue insane, provided that he has lucid intervals, but if a person’s insanity has been established as being of a permanent nature, then, gentlemen, tMs presumption of that condition continues until it is overcome by evidence in the case, and in that case the jury is to determine.</p> <p>In his argument to the jury, state’s counsel said:</p> <p>“Defendant’s counsel argues that he should be sent to the asylum. Send defendant to the asylum and then let a few doctors come along, and in a few months or few years, and give another opinion, and have him discharged from the asylum and turned loose on tMs neighborhood.”</p> <p>The following charges were refused to defendant:</p> <p>(44) If the jury, upon considering all the evidence, have a reasonable doubt of defendant’s guilt arising out of any part of the evidence, they must find defendant not guilty.</p> <p>(46) Same as 44.</p> <p>(54) The court charges the jury that before they can convict defendant the evidence must be so strong as to convince each juror of Ms guilt, beyond a reasonable doubt, and if after considering all the evidence a single juror has a reasonable doubt of defendant’s guilt, arising out of any part of the evidence, they cannot convict him.</p>

<p>1. Executors and Administrators <&wkey;l80 — Allowances to Widow and Minor Children.</p> <p>Under Code 1907, §§ 4199, 4200, exempting personal property to the widow and minor children of a decedent, a minor child- not living with the widow is entitled to its share, since such right is given, not as an incident to the family relation, but because of minority.</p> <p>2. Homestead <&wkey;143—Surviving Wipe and Children—Rents and Propits.</p> <p>Under Code 1907, § 4196, exempting homestead to widow and minor children of decedent, who are to be equally benefited by the rents and profits, a minor child, not living thereon, is not entitled to share in the rents and profits, although the widow is a stepmother, and the child has a guardian.</p>

<p>Appeal from Circuit Court, Morgan County ; R. C. Bricliell, Judge.</p> <p>Bill by J. Miller Óerren against Harris, Cortner & Co. and others. Decree sustaining demurrer to the bill, and complainant appeals.</p>

<p>1. Reformation of Instruments &wkey;>45(4)— Mutual Mistake — Proof.</p> <p>To reform a deed on the ground of mistake, it must be shown by clear, exact, and satisfactory proof that the mistake exists, and that the writing deviates from the intention and understanding of both parties at the time of its execution.</p> <p>2. Reformation of Instruments &wkey;>36(l) — Mutual Mistake — Pleading.</p> <p>There must be great particularity of averment to authorize the reformation of a deed for mutual mistake.</p> <p>3. Pleading <&wkey;>34(4) — Construction AGAiNSt Pleader.</p> <p>Although pleadings are to be construed most strongly against the pleader, yet the language used should be given a reasonable construction, and the pleading construed as a whole.</p> <p>4. Reformation of Instruments <&wkey;36(3)— Mutual Mistake — Pleading.</p> <p>A bill for reformation of a deed on the ground that, “through a mistake” the land was incorrectly described, sufficiently alleged mutual mistake, where from the whole bill it appeared that the mistake averred was a-mistake of both parties at the time of the execution of the deed, although the word “mutual” was not used.</p>

<p>Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.</p> <p>Action by F. O. Camper against the Nashville, Chattanooga & St. Louis Railway Company for damages for failure to deliver stock. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.</p> <p>The following is plea 3:</p> <p>That the contract between plaintiff and defendant contained a clause in substance that as a condition precedent to the recovery of any damages for any loss or injury to live stock covered by the contract for the claim therefor to some general officer, or to nearest station agent of the delivering line, before such stock is removed from the point of shipment or from the place of destination and before such stock is mingled with other stock, such written notification to be served within one day after delivery of the stock at destination to the end that such claim may be fully and fairly investigated, and that a failure to comply with this clause shall be a bar to the recovery of any and all such claims and to any suit or action brought thereon; and defendant avers that said written notification was not given to either of the persons named above and that information as to the injury complained of was peculiarly within the knowledge of the plaintiff, in that the matters complained of were known to said Henry Knight & Go. at the time of delivery, and were unknown to defendant for more than 24 hours thereafter, and until after said cattle were mingled with other cattle or moved away, and defendant avers that the delivery of the cattle was made by Louisville & Nashville Railroad Company at Louisville, Ky., and that defendant was not present at the time and place of delivery by agent or otherwise, and that the injury and loss complained of occurred on. the line of the Louisville & Nashville Railroad Company.</p>

A. Pearce, Judge. Assumpsit by the Alabama Chemical Company against.W. T. Bowdoin. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 449. Corrected and The note sued on was executed by defendant to one Austin & Gentry, and is alleged to be now the property of plaintiff.

<p>Appeal from Circuit Court, Henry County H. A. Pearce, Judge.</p> <p>Action by the Bank of Henry against C. J. Norton. Judgment for defendant, and plaintiff, appeals. Transferred from the Court of Appeals under Act April 18, 1911, p. 449, § 6.</p>

<p>1. Insurance c&wkey;606(4) — Subrogation — Right of Action for Damages.</p> <p>Where an automobile is damaged and an insurance company partially reimburses owner for loss suffered, owner, who subrogates insurer to his rights against company responsible for damage to the amount of such reimbursement, does not, by such subrogation, assign his right of action for damages, and can sue therefor in his own name.</p> <p>2. Negligence, <&wkey;136(14) — Submission of Question of Negligence to Jury.</p> <p>In an action for damages to automobile on defendant’s premises, caused by collision with defendant’s wagon, evidence held sufficient to justify submission to jury of question of defendant’s negligence.</p> <p>Sayre, J., dissenting.</p>

<p>Appeal from Circuit Court, Clay County; Leon McC'ord, Judge.</p> <p>Action by J. L. Lane against tbe Ashland Oil Mill & Fertilizer Company. Judgment for plaintiff, and defendant appeals. Transferred from tbe Court of Appeals under Acts 1911, p. 449, § 6.</p> <p>Appellee (plaintiff) sues appellant (defendant) for 15,30S pounds of cotton seed; and also, under a separate count, for tbe conversion of said seed. The complaint was afterwards amended by adding counts A, B, and C, which are tbe common counts for money due by account, mercbandise, goods, and chattels, sold by the plaintiff to the defendant, and on an account stated; it being alleged that all these different counts arose out of tbe same transaction, and relate to tbe same subject-matter. There was verdict and judgment for tbe plaintiff in tbe sum of $497.51, and from this judgment tbe defendant prosecutes this appeal.</p> <p>Tbe testimony for tbe plaintiff tended to show tbat tbe defendant company was in possession of tbe cotton seed, tbe subject-matter of this suit, under a replevin bond, and demand had been made before bringing suit for said seed, which demand was refused. Evidence was also offered to show the value of tbe seed at the time and place of tbe demand and conversion. Tbe testimony further tended to show tbat plaintiff bad bought these seed from a number of farmers who bad carried their cotton to tbe defendant company to be ginned, and after the cotton was ginned tbe seed were blown into tbe seedhouse, and tbe farmer given a ticket as evidence of tbe amount of cotton seed due him. Tbe defendant company bad these tickets printed, which were in the following form:</p> <p> </p> <p>The plaintiff bad purchased tbe seed, the subject-matter of this litigation, from various farmers, and they bad delivered to him tickets representing tbe amount of seed in defendant’s possession; tbe total amount purchased by tbe plaintiff, as represented by these tickets, being 15,308 pounds. Tbe evidence shows that plaintiff demanded of tbe manager of defendant oil mill company tbe seed, as represented by the tickets, prior to the institution of this suit, and tbe said manager refused to deliver the seed, but admitted be bad them in bis possession. Plaintiff then tendered to defendant company $10 in money as storage charge for said seed, 'and defendant still refused to deliver tbe seed, or to give any information as to what tbe storage charges were, if any. Tbe manager of tbe defendant company offered to pay plaintiff $55 per ton for said seed on tbe day. of demand, but seed were, in fact, on tbat day worth $58 per ton. Tbat at tbe time be (plaintiff) demanded tbe seed, the manager said, “You can have your seed less 5 per cent, shrinkage or storage,” and plaintiff answered, “I will pay you your money for the storage.”</p> <p>One of the farmers who sold some of tbe seed .to plaintiff testified that be left some cotton at tbe defendant’s mill, as represented by tbe ticket which was offered in evidence, with the blanks filled out as to tbe ¿mount of seed cotton, lint cotton, and tbe net amount of seed, together with tbe name. This witness stated tbat be did not sell tbe seed to the oil mill, but when be left tbe mill be was given a ticket, and that he subsequently sold the seed to the plaintiff. He further testified that the ticket was given to him by the weigh-er at the scales, but he had made no arrangements with the oil mill “to take a ticket like this before the seed were blown in, or before they gave me the ticket”; that he made no arrangement with the oil mill to allow a reduction on the seed of 5 per cent, shrinkage, “or any other agreement of that kind.” ■ It was agreed in substance that the testimony concerning the tickets of the other farmers who sold the seed in question to the plaintiff would be the same as was the testimony of this witness.</p> <p>The manager for the defendant company testified that when the seed were demanded of him he stated he would deliver the seed less 5 per cent, shrinkage, or would pay the market value less 5 per cent, and take the seed; that he did not refuse to let plaintiff have the seed, but told him that he would “deliver them at any time less the 5 per cent, shrinkage,” or would buy them at the market price less 5 per cent. He further stated that he did not refuse to deliver the seed if plaintiff would settle according to the terms of the ticket; that the tickets had been printed, and he did not know that he had made any verbal agreement with the farmers, and, in fact, had made no agreement except as stated on the tickets ;■ that the defendant is paid for the bagging, ginning, and ties, and then bought the seed according to the terms of the ticket; that some of the.seed had been in storage for some time, and some for a very short time. There was no evidence tending to show how much, if any, seed would shrink, and what was the actual shrinkage charge or storage charge.</p> <p>There were some charges refused to the defendant. A written charge was given at the request of defendant, and read to the jury, but this charge is not set out in the record.</p>

C. Brickell, Judge. Action of detinue by J. A. Lindsey & Co. against Dee Steenson. Prom judgment for defendant, plaintiff appeals. Transferred from the Court of Appeals under Act April 18, 1911, p. 449, § 6. The .following charges were refused to plaintiff: 3. If you believe the evidence in this case you will find that the balance due upon the mortgage debt is $34.97, with interest since October 1, 1906. AA.

<p>Appeal from Circuit Court, Wilcox County; B. M. Miller, Judge.</p> <p>Bill in equity by the Eliasberg & Bros. Mercantile Company against Baker, Dyons & Co. Decree for complainant, and defendant appeals.</p>

<p>Appeal from Circuit Court, Madison County; R. C. Brickell, Judge.</p> <p>Action by I. W. Shinault against Lowe & Armstrong. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act of April 18, 1911, p. 449.</p>

B. Smith, Judge. Motion for a- summary judgment by Mrs. Kate B.. Prude, administratrix, against Thompson & Thompson and others, attorneys at law, for money collected and not paid over. Judgment for movant. Prom action of the trial court in granting a new trial, plaintiff appeals.

B. Smith, Judge. Suit by the Champion Register Company against James W. Lusk and others, as receivers of the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendants appeal. Submitted on motion to strike bill of exceptions and upon the merits. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

Charlie Vest was convicted of murder in the second degree, and appeals, Appellant was indicted and tried on a charge of murder in the first degree. He was •convicted of murder in' the second degree, and sentenced to the penitentiary for a term of 25 years. The evidence for the state shows that the defendant shot the deceased, Grady Lowery, with a pistol, without provocation or excuse, and was sufficient to make out a charge of murder in the first degree.

C. Brickell, Judge. ' Suit in equity by J. F. Manning and others against T. C. Yeager and others. From a decree for respondents, complainants appeal.

Miller, Judge. Action for rent by Richard W. Massey against the Georgia Casualty Company. From judgment for plaintiff,' defendant appeals. Transferred from the Court of Appeals under. Act April 18, 1911, p. 449, § 6. The facts sufficiently appear.

A. 'Pearce, Judge. Action by Jennie Fanner against the Atlantic Coast Line Railroad Company, for damages for injury while a passenger. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Plaintiff was a passenger on defendant’s train en route from Abbeville to Dothan, involving a change of cars at Grimes.

Miller, Judge. Action by Zaehery Taylor Hardy against Isaac E. Loveless and another. From judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Suit by appellee (plaintiff) against appellants (defendants) to recover damages for an assault and battery with a gun, committed by the defendants on the plaintiff September 14, 1915.

.Grayson, Judge. Bill by the City of Mobile against the Mobile Electric Company to enjoin respondent, its officers, employés, etc., first, from establishing and adopting a schedule of rates for currency supplied the city of Mobile and from charging the general customers of respondent ■in the city of Mobile for electric current an amount in excess of the rate specified in the contract of December 31, 1906, as amended, and from cutting off current from those who failed to pay…

G. B. Gwin, Judge. Action by Laura Johnson, pro ami, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. This cause was tried upon count 1, the plea of general issue, and, in short by consent, the plea of contributory negligence, resulting in a judgment for the plaintiff in the sum of $1,500, from which judgment the defendant prosecutes this appeal.

B. Smith, Judge. Action by the Acme White Lead & Color Works against Mrs. R. H. Fries. From the judgment or order overruling defendant’s motion for new trial, she appeals. Transferred from the Court of Appeals under Act April 18, 1911, p. 449, § 6.

<p>1. Bills and Notes &wkey;>366 — Bona Fide Purchaser — Wife’s Note for Husband’s Debt.</p> <p>Wife who joins with husband in executing note to secure husband’s debt cannot assert invalidity thereof under Code 1907, § 4497, providing that wife shall not become surety of husband, where holder of note is a bona fide purchaser.</p> <p>2. Bills and Notes <&wkey;358 — “Bona Fide Purchaser” — “Value” — Pre-existing Debt.-</p> <p>Under Code 1907, § 5007, subd. 3, requiring payment of value by one claiming as a bona fide purchaser, and section 4982, providing that a pre-existing debt constitutes value, and section 5012, providing that bona fide purchaser takes note free from defects of title of prior parties, a bank taking note as collateral for pre-existing debt is a “bona fide purchaser.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Bona Fide Purchaser; Value.]</p> <p>3. Mortgages &wkey;153 — Bona Fide Purchaser oe Note Secured by Mortgage.</p> <p>A mortgage securing a note in the hands of a bona fide purchaser has the same protection from equitable defenses of maker as the note; the mortgage being a mere incident of the note.</p> <p>4. Equity <&wkey;153 — Biel—Construction.</p> <p>In construing allegations of bill in equity to determine whether a holder of note is alleged to be a bona fide purchaser thereof, the allegations will be construed most strongly against the pleader.</p> <p>5. Bills and Notes <&wkey;464^-PEEADiNG — Description of Instrument — “Promissory Note.” %</p> <p>An allegation that a “promissory note” was assigned is sufficient allegation that the instrument assigned was an unconditional promise to pay another a certain sum of money at a special specified time (citing Words and Phrases, First and Second Series, Promissory Note).</p> <p>6. Cancellation of Instruments &wkey;>37(5)-~ Pleading — Holder of Note.</p> <p>Where bill praying for cancellation of note refers to possible assignment of note from bank to some other person “who might claim to be an innocent purchaser thereof,” the bill sufficiently alleges bank to be holder of the note.</p> <p>7. Bills and Notes <&wkey;497(l) — Presumption —Holder in Due Course.</p> <p>Under Code 1907, § 5007, defining holder in due course, and section 5014, making holder prima facie holder in due course, a bank alleged to be holder of a note is presumed to be a holder in due course.</p> <p>8. Cancellation of Instruments <&wkey;37(5)— Pleading — Holder in Due Course.</p> <p>Complainant seeking cancellation of note and alleging bank to be holder thereof must affirmatively plead notice to bank of the infirmity in note on which action is based; the bank alleged to be holder being presumptively a holder in due course taking note free from equitable defenses thereto.</p> <p>9. Bills and Notes <&wkey;365(l) — Bights of Holder in Due Course.</p> <p>A bank receiving a note. from payee in the usual course of business, before maturity, for a valuable consideration, and without notice of any defect or infirmity, has an original right of action against maker exempt from all legal and equitable defenses to which it might have been subject before transfer.</p> <p>10. Husband and Wife <&wkey;171 (10) — Mortgage for Husband’s Debt — Marshaling Assets.</p> <p>Where wife joins with husband in executing note to secure husband’s debt and gives mortgage on her land to secure note, she cannot compel a bona fide purchaser of note to marshal the assets of payee before foreclosing mortgage.</p> <p>11. Principal and Surety <&wkey;169 — Compelling Becouese to Other Securities.</p> <p>A surety cannot compel creditor to marshal assets of principal.</p>

<p>1. Banks and Banking <&wkey;262 —. Assignment of Assets — Ratification.</p> <p>Where the Comptroller of Currency declined to permit a national bank in embarrassed condition to continue business unless it made some satisfactory arrangement, and under the stress of such circumstances its directors, pursuant to agreement, assigned all its assets to another national bank which assumed all its indebtedness and agreed to wind up its affairs, and stockholders of the assigning bank later ratified the agreement, the ratification related back, except as to intervening rights, to the date of the directors' agreement of sale and conveyance pursuant thereto.</p> <p>2. Banks and Banking &wkey;s254 — Suit Against Directors — Parties.</p> <p>For loss sustained by a national bank through the negligent conduct of its business, the right of action against the directors would be in the bank, and it through its directors and stockholders could convey such right, together with its other assets, to another national bank which had agreed to wind up its affairs.</p> <p>3. Banks and Banking &wkey;>254 — Assignment of Assets — Rights of Assignee.</p> <p>Where, under authority of the Comptroller of the Currency, the directors and stockholders of a national bank assigned all property, assets, and effects of every kind to another national bank which was to wind up its affairs, any cause of action by the bank first mentioned against its directors for misconduct of its business was vested in the assignee.</p> <p>4. Banks and Banking <S=?254 — Stockholders’ Bill — Other Adequate Remedy.</p> <p>A stockholders’ bill against directors of a national bank for negligence in the conduct of its business cannot be maintained if there be other adequate remedy.</p> <p>5. Banks and Banking <&wkey;254 — Negligence of Directors — Action—Parties.</p> <p>Where a national bank made a lawful assignment to another national bank which was to wind up its affairs, any right of action of the assigning bank or it stockholders against its directors for negligence became vested in the assignee, and the violation of the assignee bank’s-obligation to enforce such claim would not reinvest in the assigning bank or its stockholders-the right of action against such directors, but would give a right of action against the assignee bank. .</p> <p>6. Banks and Banking <&wkey;251 — Estoppel— Prior Action Pending.</p> <p>Where a stockholder of a national bank, after its assets were assigned by it to another national bank, brought a bill against its directors for negligence in conduct of the bank’s business, the stockholder, if not ready and willing to dismiss his own suit, would be estopped to demand that assignee sue the directors.</p>

J. Curtis, Judge. Action by P. J. Dodd against the Choctaw Coal & Mining Company for injuries received while in its employment. Judgment for plaintiff, and defendant appeals. The complaint sufficiently appears.

<p>1. Principal and Surety <&wkey;125 — Release op Surety. |</p> <p>Where defendant became surety on bond of coal dealer to a wholesaler whose contract required monthly settlement and accounting, the mere fact that the wholesaler made shipments of coal to the shipper for which he did not pay in full, and that the dealer did not make monthly reports and payments, did not discharge the surety, though it had no notice of such conduct; the wholesaler not having consented or acquiesced therein.</p> <p>2. Principal and Surety <&wkey;>122 — Discharge oe Surety-Failure to Terminate Contract on First Default.</p> <p>Where coal wholesaler required bond of retailer, stipulating for payments and accounting each month, the wholesaler, in order to preserve its 'rights against the surety, was not required, on the first occasion when the accounting at the end of the month was not made, to terminate the contract immediately.</p>

<p>Appeal from Circuit Court, Elmore County; Leon McCord, Judge.</p> <p>Ejectment by Rebecca Hagan and others against C. W. Monfee. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Probate Court, Walker County; E. W. Long, Judge.,</p> <p>Suit between the Schloss-Sheffield Steel :& Iron Company and B. F. Borden. From decree for the latter, the former appeals.</p>

<p>Appeal from Circuit Court, Fayette County ; H. B. Foster, Judge.</p> <p>Bill by P: M. Walker and another against J. D. Moore for an injunction. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Circuit Court, Clay County; Hugh D. Merrill, Judge.</p> <p>Suit by J. C. Street against W. S. Crabtree. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act of April 18, 1911, p. 449.</p>

P. Almon, Judge. Suit between W. P. Burgess and others and Houston Burgess and others. From decree for the latter, the former appeal.

<p>Appeal from Circuit Court, Clay County; Hugh D. Merrill, Judge.</p> <p>Action by Mary E. Clarkson againsit B. W. Pruett and others. From the judgment rendered, plaintiff appeals.</p>

Suit by Julia S. Thompson against J. Vis* gil Smith and others to cancel a deed, and cross-bill by the named defendant. Fíom a decree sustaining a demurrer to the cross-bill, cross-comp]ainant appeals.

L. Sowell, Judge. Suit by the Town of Carbon Hill for an injunction against B. D. Leith and others. From an order dissolving a temporary injunction, the complainant appeals.

A. Pearce, Judge. Suit by S. Johnson against J. M. Dillard and another. Prom judgment for plaintiff, defendants appeal. Transferred _ from the Court of Appeals under section 6, p. 449, Acts 1911. Suit by appellee against appellants, commenced on July 29, 1916, for the recovery of damages for the breach of a certain claim bond executed on January 19, 1916, by J. M. Dillard, as principal, and T. S. Paulk, as surety.

<p>1. Evidence <&wkey;342 — Admissibility — Public Land Records.</p> <p>In partition of “sixteenth section” school lands, where complainant claims as an heir, a transcript of the register of sixteenth section notes authenticated by the state auditor as public custodian by virtue of Acts 1915, p. 217, was admissible to Show that complainant's father had bought the land from the state and paid for it.</p> <p>2. Evidence <&wkey;83(3) — Presumptions — Payment oe Vendor’s Notes.</p> <p>In partition of “sixteenth section” school lands, where complainant claimed that his father had bought the land from the state, giving four notes therefor, and the register of the sixteenth section notes kept by a public custodian showed payment of the two notes last due, it will be presumed that the other notes were paid, especially where the vendee has had undisturbed possession for many years.</p> <p>3. Partition <&wkey;63(3) —■ Ownership — Evidence.</p> <p>In partition, where complainant claimed that his father had bought the land from the state as “sixteenth section” school land, evidence that the purchase-money notes were paid, and that the vendee had remained in possession for many years, authorizes the presumption that the certificate was issued which, under Code 1852, § 539, conveyed a conditional estate in fee.</p> <p>4. Dower <&wkey;114(4) — Sale oe Land-Title oe Grantee.</p> <p>Where a state has granted “sixteenth section” school land, and the grantee’s widow retains possession by virtue of her dower right, a subsequent attempted grant by the state to her is of no effect, and a conveyance by her passes only her interest in the life estate; its execution and delivery not even constituting notice to the reversioners of any change in the title of the property.</p> <p>5. Dower <&wkey;114(4) — Sale oe Land — Innocent Purchasers.</p> <p>Purchasers from a widow occupying land to which her husband held title from the state, as doweress, are not as against one holding under the real owner, entitled to the protection of an innocent purchaser for value without notice.</p> <p>On Rehearing.</p> <p>6. Evidence <&wkey;83(l) — Presumptions — Official Records.</p> <p>Where a duty is imposed by law upon an official, and a record manifesting a discharge of that duty is preserved, and is found in a custody consistent with its official creation, the presumption is that the record is a correct representation of the official act which it purports to memorialize.</p> <p>7.Evidence- &wkey;>342 — Records.</p> <p>In partition of “sixteenth section” school lands, a transcript of the register of sixteenth section notes kept by the state auditor as public custodian, under Acts 1915, p. 217¡ and authenticated by him, was not inadmissible because the state auditor had no power as public custodian at the time the transactions memorialized therein took place, where the register at that time was kept by the state comptroller under Code 1852, § 365.</p>

Frank F. Best was convicted of violating a municipal ordinance, and appealed to the Court of Appeals where conviction was reversed and cause remanded (78 South. 100). The City petitioned for certiorari.

Locke, Judge. Bill by the McVay Seed & Floral Company, Incorporated, against G. B. McVay & Son Seed Company, Incorporated, to enjoin the use of a name. From a decree overruling demurrers to the bill, respondents appeal. The purpose of the bill is to enjoin the use of the.name “McVay” in the corporate name, or in connection with the flower and seed business, either in advertising, or upon the goods of the G. B. McVay & Son Seed Company.

Blackwood, Judge. Action by Katherine J. Parks against R. L. McCay for the conversion of logs. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 449.

<p>Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.</p> <p>Bill in equity by A. McIntosh against the First National Bank of New Brockton and another, to require it to surrender and deliver up a deed for cancellation, and to declare void and canceled a mortgage to the First National Bank executed by M. L. Smith, formerly McIntosh, so far as the lands therein described are concerned. From a decree for complainant, the named respondent appeals.</p>

C. B. Gwin, Judge. Suit by Jesse Snodgrass, pro ami, against the Alabama Great Southern Railroad Company. Judgment for plaintiff, and defendant appeals. Jesse Snodgrass brings this suit by his next friend for recovery of damages alleged to have been sustained by being struck by a car Which it is alleged the defendant negligently caused to run against the plaintiff, resulting in his injury. The cause was tried upon count 1 of the complaint and the general issue.

C. Brickell, Judge. Action by David S. Blackwell against the Nashville, Chattanooga & St. Louis Railway. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Act April 18, 1911,.p. 449, § 6. 'The facts and pleadings sufficiently appear from the opinion.

Horton, Jr., Judge. Suit by F. M. Woodley against S. Z. Woodley to cancel a deed with cross-bill by respondent. From a decree for respondent, complainant appeals.

<p>1. Carriers <&wkey;79 — Routing.</p> <p>A carrier must observe directions of the shipper as to the routing, especially where a greater freight charge than the lawful charge agreed upon will be incurred if a different route is employed, unless intervening circumstances justify the change.</p> <p>2. Carriers <&wkey;79 — Routing.</p> <p>Whore the bill of lading specified a legal rate of 19 cents, and there was only one route over which the shipment could be made at such rate, carrier was sufficiently apprised of the route desired by shipper.</p> <p>3. Carriers <&wkey;198 — Connecting Carriers —Charges—Liability. ,</p> <p>AA’here shipper designated a route at a certain through rate, but the goods were deflected at a certain point over another route, thereby increasing the charges, the remedy of the shipper is not against the carrier to which the goods were deflected.</p>

<p>Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.</p> <p>Bill by John W. Brown against W. E. Irvin. Decree for complainant, and defendant appeals.</p>

<p>1. Evidence <&wkey;44 — Judicial Notice — Appointment oe General Guardian Ad Litem.</p> <p>The Supreme Court takes judicial notice that the Governor appointed a general guardian ad litem for Mobile county after the approval of Gen. Acts 1915, p. 261.</p> <p>2. Costs <&wkey;32(l) — Right of Successful Party — Statute.</p> <p>Under Code 1907, § 3662, the successful pai'ty in a civil case is entitled to full costs, unless otherwise directed by law.</p> <p>3. Costs <&wkey;>56 — Equity—Statute.</p> <p>In equity the costs rest largely in the discretion of the court, under Code 1907, § 3222.</p> <p>4. Executors and Administrators <&wkey;109 (1) — Allowance of Costs and Expenses— Statutes.</p> <p>Under Code 1907, § 2597, in the administration of the estates of deceased persons, reimbursement out of the general estate for reasonable costs and expenses, incurred in good faith, is allowed.</p> <p>5. Executors and Administrators <&wkey;lll (1) — Reimbursement for Costs and Expenses — Good Faith.</p> <p>In Alabama the right of reimbursement to personal representatives fpr costs and expenses of litigation or legal procedure, notwithstanding its failure or success, depends on good faith in prosecuting or defending, and on the reasonable necessity for the expenditure.</p> <p>> 6. Trusts <&wkey;227 — Right of Trustee to Costs and Expenses — Good Faith.</p> <p>In Alabama the right of reimbursement to trustees for costs and expenses of litigation or legal procedure, notwithstanding its failure or success, depends on good faith in prosecuting or defending, and on the reasonable necessity for the expenditure in the execution of the trust.</p> <p>7. Infants <&wkey;83 — General Guardian Ad Litem — Fees—Statutes.</p> <p>The amount and manner of collection of the fees allowed to the general guardian ad litem of a county, appointed by the Governor pursuant to Gen. Acts 1915, p. 261, is unequivocally fixed by the statute.</p> <p>8. Statutes <&wkey;218 — Contemporaneous -Construction.</p> <p>The statute regulating the amount and manner of collection of the feos allowed the general guardian ad litem of a county, being unambiguous, will be given its proper construction, though judges of probate, chancellors administering estates, and parties litigant have construed the statute, which is unambiguous, otherwise.</p> <p>9. Infants <&wkey;83 — General Guardian Ad Litem — Allowance on Partial Settlement by Administrator — Statute — “Case.”</p> <p>Allowance to general guardian ad litem of county, acting for minor on partial settlement of administrator’s accounts, of practically maximum fee fixed by Gen. Acts 1915, p. 261, for general guardian ad litem, was improper as contrary to purpose of statute, “case,” as used, embracing all proceedings of a case in court.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and 'Second Series, Case.]</p>

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Action by J. D. Reese, as administrator of the estate of G. E. Reese, against the New York Life Insurance Company, to recover on a policy of insurance. Judgment for plaintiff, and defendant appeals.</p> <p>The policy was issued November 16, 1896, and by its terms the insurance company agreed to pay $2,000- to beneficiaries immediately upon receipt and approval of proofs-of the death of insured. And the company further agrees to pay in addition thereto an amount equal to one-half of the total premiums received if the death of insured shall occur before November 16, 1916. The accumulation guaranty is: This policy “participates in surplus as hereinbefore provided, but no dividend shall be apportioned to it before the end of the accumulation period, and it is declared that the accumulation period of this policy ends on November 16, 1916.” Then follows the provision that if the insured is living, and if the premiums have been fully paid to that date, and not otherwise, the company will then apportion as dividends to the insured, who shall have the option of continuing or discontinuing this policy under one of the following six accumulation benefits: 1, 2, 3, 4, and 5, received the entire cash value as stated below in cash, and discontinued this policy — or 6.</p> <p>Defendant filed pleas setting up the special provision, of the policy, and alleging that the insured elected on October 27, 1916, to take the benefit under option No. 5 as above set out; that the company then sent insured a written statement on November 16, 1916, showing that the cash surrender value for November 16, 1916, would be $1,484.74, less $922, the amount of a loan on the policy, and forwarded a check for the balance due, to be delivered to insured on that date by its Montgomery agents, of which the insured was notified by letter, dated November 6, 1916; that insured died at 4 o’clock a. m., November 16, 1916, and that defendant offered to pay plaintiff the said sum of $562.74, which he refused to accept.</p> <p>Demurrers were sustained to these pleas, but the facts therein averred were fully established by an agreed statement, and the trial was on the general issue by the court without a jury. The court held plaintiff was entitled to recover the full face of the policy, plus the amount of the tontine dividends, less the amount of the outstanding loan, making, with interest, a balance of $1,578.84.</p>

Appeal, from Circuit Court,' Clay County; Hugh D. Merrill, Judge. Action by W. A. Kitchens against the Ger-mania Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Suit by W. A. Kitchens against Germania Fire Insurance Company on an insurance policy issued by the defendant company to the plaintiff on November 29,1915; the same covering a period of three months from that date, expiring February 29, 1916, and being in the sum of $2,000.

Miller, Judge. Assumpsit by the Birmingham Trust & Savings Company against the Fruitticher Electric Company. Judgment for plaintiff, and defendant appeals. Plea A is the general issue in the following form:. It denies each and every allegation contained in the complaint, and each count severally and separately, and says that the same are not true, and that defendant is not indebted to plaintiff.

<p>1. Acknowledgment <&wkey;19 — Notaries—Powebs.</p> <p>A notary is without power to take an acknowledgment out of his county.</p> <p>2. Acknowledgment (&wkey;62(l) — Notaries — Powers — Questions ow Faci^-Evidence.</p> <p>Although acknowledgment purports to have been taken in one county, it can be shown by parol that notary took the acknowledgment in another county.</p>

<p>1. Master and Servant &wkey;>258(18) — Injury to Servant — Pleading—Complaint—Sufficiency of Count.</p> <p>A count in a complaint setting up a cause of action under Employers’ Liability Act, subd. 3, based on negligence in giving an order to plaintiff to propel a hand car over a crooked track containing a high- trestle when a train was due to pass, held sufficient to show breach of duty to plaintiff and damages proximately caused by such breach.</p> <p>2. Master and Servant <&wkey;258(10) — Injury to Servant — Complaint—Pleadin g — Sufficiency of Count by Reference to Others.</p> <p>Where each of five counts of a complaint clearly and specifically shows which of the five subdivisions of the Employers’ Liability Act it is framed under, and parts of each merely follow the statute in alleging negligence without particularizing the negligent act, such general allegations will be referred to other allegations charging specific acts of actionable negligence.</p> <p>3. Master and Servant <&wkey;204(3) — Assumption of Risk — Employers’ Liability Act.</p> <p>Under the Employers’ Liability Act, a servant does not assume the risks incident to the negligence of a foreman or person to whose orders he is bound to conform or of a person in charge of a locomotive, etc.</p> <p>4. Master and Servant <&wkey;228(l) — Employers’ Liability Act — Contributory Negli- ' GENCE.</p> <p>The Employers’ Liability Act, while abolishing assumption of risk, did not abolish the defense of contributory negligence.</p> <p>5. Master and Servant ¡&wkey;204(l) — Employers’ Liability Aoo> — 'Volenti Non Pit Injuria.</p> <p>The Employers’ Liability Act, abolishing assumption of risk, did not abolish the doctrine of, “Volenti non fit injuria” or its application to negligence cases by a servant against master.</p>

<p>Appeal from Circuit Court, Etowah Coun2 ty; J. E. Blackwood, Judge.</p> <p>Bill by A. H. Quinn against the Woodstock Operating Corporation. Decree for complainant, and defendant appeals.</p>

<p>1. Damages <&wkey;199 — Judgment by Default —Intervention oe Jury — Statute.</p> <p>Suit on fire policy is not a case in which court is authorized, by Code 1907, § 5356, to ascertain amount of plaintiff’s demand, and render judgment therefor, in case of default, without intervention of jury.</p> <p>2. Jury &wkey;>28(3) — Demand for Trial — Withdrawal Without Consent — Statute.</p> <p>Under Acts 1915, pp. 939, 940, where defendant in default did not consent to plaintiffs withdrawal of demand for trial by jury, action of court in entering judgment for plaintiff without intervention of jury was erroneous; plaintiff’s waiver of jury trial being ineffectual.</p> <p>On Rehearing.</p> <p>3. Appeal and Error &wkey;> 1180(1) — Reversal —Effect.</p> <p>Reversal of judgment for plaintiff, entered by court after defendant’s default without intervention of jury, defendant not having consented to plaintiff’s withdrawal of demand for jury trial, is effective only to remand cause for execution of proper writ of inquiry for ascertainment of damages by jury, and does not set aside default.</p>

<p>1. Husband and Wife <&wkey;171(l) — Wife as Surety — Indorsement of Note — Statute.</p> <p>Under Code 1907, § 4497, providing wife cannot become surety for husband, where loan is made only to husband, and effort is to secure payment with wife’s property, neither she nor her property is bound, whatever form of surety-ship.</p> <p>2. Fraud <&wkey;50 — Presumption—Proof.</p> <p>Fraud is never presumed, but must be proved.</p> <p>On Rehearing.</p> <p>3. Husband and Wife ¡&wkey;171(8) — Wife as Surety — Statute .</p> <p>Absence of knowledge or notice on part of or to husband’s creditor that indorser of husband’s note, pledged as collateral security for debt, is his wife, is ineffectual ta avert application of Code 1907, § 4497, providing wife cannot become surety for husband.</p> <p>4. Husband and Wife &wkey;> 171(12) — Wife as Surety — Estopped.</p> <p>Not even an estoppel arises to restrain a wife who has become surety for the debt of her husband from invoking the courts to apply Code 1907, § 4497, providing wife cannot become surety for husband, and avoiding obligation so far as she and her property are concerned.</p> <p>5. Husband and Wife <&wkey;171(l) —Wife as Surety — Statute.</p> <p>Pledge or deposit of wife’s property to secure payment of debt of husband is as much within Code 1907, § 4497, prohibiting wife’s suretyship for husband, as is mortgage of her property.</p> <p>6. Husband and Wife &wkey;> 171(1) — Wife as Surety — Statute.</p> <p>Transactions whereby a wife attempts to become surety for her husband, within Code 1907, § 4497, providing a wife cannot so become surety, are annulled by the statute.</p> <p>7. Husband and Wife <&wkey; 171(1) — Wife as Surety — Statute.</p> <p>Code 1907, § 4497, providing wife cannot become surety for husband, is applicable and effective, though security her agreement or property affords is given to indemnify another to become cosurety with her husband, and though she is not a party to the original contract.</p>

<p>1. Appeal and Error <&wkey; 1009(1) — Review-Findings oe Chancery Court.</p> <p>Chancery court’s conclusion on issues of fact, reached on oral evidence taken before it, is accorded on review same effect as verdict of jhry.</p> <p>2. Vendor and Purchaser &wkey;>281(l) — Waiver oe Lien — Acceptance oe Notes.</p> <p>Where vendor accepted vendee’s transfer of notes of other persons in part payment of purchase money, rebuttable presumption arose that he waived implied vendor’s lien.</p> <p>3. Vendor and Purchaser <&wkey;281(l) — Waiver ojt Lien — Burden of Proof.</p> <p>Though burden of proof primarily rests on party who asserts waiver of vendor’s lien, when act is shown presumptively esfablishing waiver, burden shifts to vendor to show waiver was not intended or effected, which he may do by showing a reservation. • '</p> <p>4. Vendor and Purchaser <&wkey;281(3) — WAivt er of Lien — Sufficiency of Evidence.</p> <p>In suit to enforce vendor’s lien, vendor having taken notes of third persons in part payment of purchase money, evidence helé to sustain chancery court’s conclusion that he thereby waived his implied vendor’s lien.</p> <p>5. Vendor and Purchaser &wkey;>26'6(6) — Rights of Vendor — Acceptance of Notes —Insolvency.</p> <p>If vendor of land accepted, at] his own risk, in part payment, notes of third persons, one of whom was insolvent, hé can take nothing in his suit to enforce his vendor’s lien, by the fact of the insolvency.</p> <p>6. Fixtures <&wkey;21 — Vendor’s Lien.</p> <p>Such machinery as was attached to land sold, and therefore a fixture, was within effect of vendor’s lien, it not appearing that through any agreement between seller and buyer the machinery was to be or remain personalty.</p>

<p>1. Insurance <&wkey;688 —- Fraternal Insurance-Statutes Applicable.</p> <p>Code 1907, §§ 4572, 4573, 4579, as to misrepresentation in application or proof of loss, incontestability of life policy after payment of two annual premiums, and expressing- contract in policy, do not apply to fraternal benefit societies.</p> <p>2. Insurance &wkey;>762 — Fraternal Insurance —Reinstatement of Certificate.</p> <p>If insurer had been properly suspended by defendant fraternal society, statements made in his application for reinstatement would be binding, otherwise not.</p> <p>3. Insurance <&wkey;817(2) — Fraternal Insurance-Reinstatement of Certificate.</p> <p>Insured’s statements in application for reinstatement, though not conclusive, were prima facie evidence of suspension for nonpayment of dues, and made it incumbent upon plaintiff to show that insured had not been properly suspended notwithstanding application and attempted reinstatement.</p> <p>4. Insurance &wkey;>825(2) — Fraternal Insurance-Reinstatement of Certificate.</p> <p>Whether receipts for dues and assessments negatived a suspension, or the right to suspend under terms of policy of fraternal society, held a question of fact.</p> <p>5. Insurance <&wkey;755(3) — Waiver of Conditions of Policy.</p> <p>Fraternal society could waive provision of policy that receipts for overdue assessments were not valid, unless member had been reinstated.</p> <p>6. Insurance <&wkey;745 — Waiver of Conditions of Policy — Statutes.</p> <p>While Acts 1911, _p. 700, §§ 8, 20, would apply to renewal of policy in fraternal society, it would have no application to question whether there was a forfeiture or waiver of forfeiture of original certificate existing 'before act became effective.</p>

<p>1. Evidence <&wkey;32 — Judicial Notice — City Ordinances.</p> <p>While Code 1907, § 3989, does prescribe how city ordinances may be proved, yet by Acts 1915,_ p. 297, § 7, courts are authorized to take judicial knowledge of all ordinances, laws, and by-laws of cities of the class of Birmingham.</p> <p>2. Dismissal and Nonsuit <&wkey;56 — Defect of Parties — Joinder of Third Parties.</p> <p>Motion to nonsuit is proper remedy when municipal defendant 'desires to avail itself of provisions of Code 1907, § 1274, where plaintiff has failed to join another party who is liable with the municipality under the provisions of section 1273.</p> <p>3. Dismissal and Nonsuit <&wkey;50 — Defect of Parties — W ai ver .</p> <p>Under Code 1907, § 1274, providing that in action against city for negligence, when “it is made to appear” that any person ought to be joined as a defendant according to provisions in section 1273, city can make motion for nonsuit, city did not waive benefits of statute where it pleaded to complaint before making motion for nonsuit.</p> <p>4. Dismissal and Nonsuit &wkey;>77 — Defect of Parties — Conditions—Amendment.</p> <p>A judgment for nonsuit under Code 1907, § 1273, for failnre of plaintiff to join another person as defendant in an action against a city for negligence should be conditioned on the plaintiff’s failure to amend so as to join as a defendant such person.</p>

C. Brickell, Judge. Bill by Randolph Sandlin against John H. Sherrill and others. Bill dismissed, and complainant appeals. Bill by Randolph Sandlin, appellant, against his brothers and sisters, and the lawful heirs of deceased brothers and sisters, for the sale of 160 acres of land, as therein described, for division among the parties as joint owners or tenants in common; it being averred that the land cannot be equitably divided without a sale thereof.

<p>Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.</p> <p>Henry Evans was convicted of murder, and appeals.</p>

Petition by the F. B. Fisk Cotton Company for certiorari to the Court of Appeals to review and reverse the judgment of that court in the case of Albany Warehouse Company v. F. B. Fisk Cotton Company, 76 South. 988, reversing the judgment of the lower court.

Application by Henry Ehrensperger for certiorari to the Court of Appeals, to review and revise the judgment rendered by that court (77 South. 439) in the case of E. C. Kinney v. Henry Ehrensperger.

Jim Brannon was convicted of vagrancy, appealed, and the judgment was affirmed (76 South. 991), and he applied for certiorari to review such judgment.

<p>Appeal from Law and Equity Court, Morgan County; Thomas W. Wert, Judge. Bill by E. W. Bussey against J. D. Roberts and others. From the decree rendered, plaintiff appeals.</p>

Action by Nathan O. Hedgecoth against the National Life Insurance Company of the United States of America. Judgment for plaintiff was affirmed by the Court of Appeals (77 South. 422), and defendant petitions for certiorari.

<p>Appeal from Circuit Court, Tallapoosa County, in Equity; S. L. Brewer, Judge. Bill by C. E. Harrison against J. T. Worthy and others. From a decree dismissing, the bill, plaintiff appeals.</p>

<p>Appeal from Chancery Court, Clay County; W. W. Whiteside, Chancellor. Bill by Thomas’ B. Patterson against Mrs. Alice T. Nolen. Decree for complainant, and defendant appeals. Affirmed. The bill in this case was filed by appellee against appellant for the cancellation of a certain mortgage executed by the appellee and.his wife, on March 21, 1905, to secure the sum of $1,060, on certain real estate of which he w'as seized and possessed at the time the bill' was filed, and to enjoin the foreclosure of said mortgage, upon the ground that the same had been fully paid, and further praying to be permitted to redeem from said mortgage, in the event anything should be found due thereon. The complainant paid into court $100, as. in full of the balance due. The chancellor found that the payments made in connection with the $100 deposited in court fully paid the mortgage, and entered a decree granting the relief prayed for in the bill, and respondent prosecutes this appeal.</p>

Grady Pilcher was convicted of crime, and he appealed. Prom a judgment of the Court of Appeals (77 South. 75), reversing the judgment of the trial court, the State brings certiorari.

John M. Johnson was convicted of an offense, and appealed to the Court of Appeals, where the conviction was reversed, and a judgment rendered discharging appellant (75 South. 824), whereupon the State petitions for certiorari.

J. D. Humphrey was convicted of violating the prohibition law, and, the judgment of conviction being reversed and the cause remanded by the Court of Appeals (77 South. 82), the State of Alabama petitions for certiorari.

Lloyd Thomas was convicted of an offense, and he appealed to the Court of Appeals. The case was certified to the Supreme Court, and, pursuant to response by it, reversed and rendered (75 South. 821), and the State petitions for certiorari to the Court of Appeals.

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

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

Action by S. P. Washburn against the Johnston Brothers Company and others. A judgment for plaintiff was reversed by the Court of Appeals (77 South. 461), and plaintiff petitions for certiorari.

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

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

<p>Appeal from Circuit Court, Washington County; R. I. Jones, Judge. Bill by the Alabama Veneer Company against James M. Richardson. Decree for defendant, and complainant appeals.</p>

<p>Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge. Action between Ernest H. Freundt and Maty A. Kuntz. From a judgment for 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 Circuit Court, Jefferson County; John C. Pugh, Judge. Action by George H. Estes against the Jenkins Taxicab Company. From judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.</p>

J. Curtis, Judge. Bob King was convicted of murder, and appeals. The defendant was tried on an indictment charging murder in the first degree. He was convicted of murder in the second degree, and sentenced to the penitentiary for a period of 25 years; hence he prosecutes this appeal.' The defendant pleaded self-defense. Several written charges were given at the request of the defendant, ’and some few refused.

<p>Appeal from Circuit Court, Cullman County; R. C. Brickell, Judge. Bill by Helene Poliak,. as administratrix, against the Stouts Mountain Coal & Coke Company and others. Decree for defendants, and plaintiff 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 Circuit Court, Colbert County; C. P. Almon, Judge. Tom Owens was convicted of an offense, and he appeals.</p>