Volume 202 — Alabama Reports

<p>Nuisance (&wkey;60(l) — Damages—Nature op Injury.</p> <p>In a suit for damages as for nuisance in the maintenance and operation of a cotton oil mill, damages as for permanent injury were improper where the injuries result, not from the effect of the permanent structures, but from the operations carried on therein which were capable of modification or abatement.</p>

<p>1. Master and 'Servant <&wkey;131 — Employers’ Liability Act — Proob op Negligence.</p> <p>Noninsertion, in Employers’ Liability Act, of provision that employé shall not be entitled to compensation under subsection, unless injury results from some impropriety or defect in rules, by-laws, or instructions, does not eliminate rule that proof of negligence in respect to subject-matter is condition precedent to recovery in actions against employer.</p> <p>2. Master and Servant <&wkey;149(l) — Employers’ Liability Act — Improper or Negligent Instruction.</p> <p>Improper or negligent instruction to workman by employer is essential to employer's liability under Employers’ Liability Act.</p> <p>3. Master and Servant <&wkey;265(ll) — Employers’ Liability Act — Burden of Proof.</p> <p>In servant’s action under Employers’ Liability Act, burden of proof as to allegation that instruction by reason of having obeyed which plaintiff was injured was given by person delegated with master’s authority in that behalf was on plaintiff.</p> <p>4. Master and Servant <&wkey;96(2) — Injury to Servant — Independent Contractor— Negligence of Servant.</p> <p>A master was not answerable to his servant for the acts or omissions of an employé of an independent contractor.</p> <p>5. Master and Servant i&wkey;286(19) — Safe Place to Work — Nature of Work.</p> <p>Where nature of work excluded idea of coal company’s liability as alleged in injured servant’s counts under common law charging company had negligently failed to furnish reasonably safe place in which to work, company was entitled to general charge as to such counts.</p> <p>6. Master and Servant &wkey;>10>l, 102(1) — Injuries to Servant — Liability as to an Invitee.</p> <p>Coal mining company not liable as master could not be held liable to servant for personal injuries from fall of rock, as it would be to an invitee on premises.</p> <p>7. Master and Servant ©=^235(9) — Duty of Coal Miners — Inspection.</p> <p>Under Acts 1911, p. 513, § 35, workmen in coal mines have burden to examine those places and conditions from which danger may be expected, including the roof of the mine. ,</p> <p>8. Master and Servant <&wkey;247(3) — Injury to Servant — Negligence.</p> <p>If employé of coal mining company had inspected working place, as required by Acts 1911, p. 513, § 35, and would have discovered danger of roof, but nevertheless went under ■ it, and was injured, he cannot recover; his own negligence having been proximate cause.</p> <p>Gardner and Thomas, JJ., dissenting.</p>

L. Brewer, Judge. Lon Tucker was convicted of murder in the first degree, and sentenced to the death penalty and he appeals. The following charge was given for defendant: (16) In cases of homicide drunkenness may be material in determining the degree — whether it is murder in the first or second degree. Willfulness, premeditation, and deliberation must concur with malice to constitute murder in the first degree.

Action by Cowgill & Son against R. H. Bozeman and others. Plaintiffs’ motion to direct issuance of an execution to enforce statutory judgment denied, and they appeal.

W. Haralson, Judge. Assumpsit by the Brenard Manufacturing Company against Jacobs & Padgett. Prom judgment for defendants, plaintiff appeals. Transferred from the Court of Appeals under Acts 1911, p. 450, § 6. The charge refused to defendant is as follows: The written contract, a copy of which is in evidence, shows what was agreed to between the parties.

W. Haralson, Judge. , Action by C. W. Shipp against Reuben L. Ferguson. Judgment for defendant, and plaintiff appeals. The following are the charges noted as refused to defendant: (1) The boundaries given in the deed describes a piece of land of three sizes, or a triangular shaped piece or parcel of land. (3) The southwest corner of fractional section 8 is the beginning point of the two-acre tract of defendant’s land.

<p>1. Homestead <&wkey;142(2) — Wife’s Interest in Homestead — Statutes.</p> <p>Where husband and wife owned homestead jointly, and wife died intestate, leaving minor children, children took mother’s interest under Code 1907, § 4204.</p> <p>2. Homestead t&wkey;140 — Joint Estate — Death of Wife — Husband’s Interest.</p> <p>Where husband and wife owned homestead jointly, and wife died intestate leaving minor children, the husband did not take, by virtue of Code 1907, § 3765, a life estate in the wife’s undivided half interest.</p> <p>3. Exemptions <&wkey;4^CoNSTRUCTiON of Statutes.</p> <p>Exemption laws are founded in a spirit of humanity and benevolence, and are liberally construed, but not against obvious intention or manifest justice.</p> <p>4. Executors and Administrators <&wkey;173 — Exemption to Widow and Minors — Title —Statute.</p> <p>The exemption to widow and minors under Code 1896, § 2072, is absolute, and not a part of their distributive share of the estate and title thereto never vests in the personal representative.</p> <p>5. Homestead &wkey;>81 — Estate in Fee.</p> <p>An estate in fee is not necessary to a right of homestead.</p> <p>6. Homestead <&wkey;87 — Rights of Married Woman — Defense to Action.</p> <p>A homestead may he situate on lands which constitute the statutory separate estate of a married woman.</p> <p>7. Homestead &wkey;>90 — Separate Property — Liabilities — Support of Household.</p> <p>If homestead is situate on lands constituting separate estate of married woman, she may assert a claim to it in defense of an action for subjection of lands to payment for articles of comfort and support of household.</p>

Ejectment by J. M. Tollett against W. B. Smith, with notice to O. L. Howard, as landlord, who came in and was made party defendant. Judgment for plaintiff, and defendant Howard appeals. Plaintiff relied on deed from Adolph Lund and wife oí date May 2, 1911, and it was shown that Lund had had prior possession of the land, which he conveyed. Defendant held and claimed the land sued for under deed executed to him by O. B. Smith, as state auditor, on April 24,1914.

W. Haralson, Judge. Bill by W. S. Wiles against J. G. Moore and others for an accounting and sale, or redemption of property under second mortgage. From a decree rendered, complainant appeals, and certain of the respondents filed cross-appeals.

Habeas corpus by B. E. Pool against the State. Motion to quash the return was overruled, and petitioner appealed to the Court of Appeals, which affirmed (78 South. 407),1 and he petitions for certiorari.

<p>Appeal from City Court of Birmingham; H. A. Sharpe, Judge.</p> <p>Action by the Gulf States Steel Company against the Interstate Casualty Company. Judgment for plaintiff, and defendant appeals.</p>

Petition by W. J. Foster for certiorari to review the judgment (78 South. 7211), affirming a judgment convicting relator of obtaining money under false pretenses.

<p>Appeal from Circuit Court, Pickens County; H. B. Foster, Judge.</p> <p>Earnest Lawrence was convicted of murder in the first degree, with death sentence, and he appeals.'</p>

<p>1. Mortgages <&wkey;377 — Attorney’s Fees — Services in Depending Action.</p> <p>In ascertaining amount of attorney’s fees due as part of mortgage indebtedness, the services of mortgagee’s attorney in defending a suit to restrain foreclosure upon ground that amount due had been rendered will not be considered, where mortgage did not provide for attorney’s fees for defending such suit.</p> <p>2. Mortgages <&wkey;377 — Attorney’s Fees — Reasonable Feb.</p> <p>Where mortgagee had handed mortgage and note to his attorney, who had written mortgagor and prepared and posted notice of foreclosure, $40 was reasonable attorney’s fee, where a portion of the mortgagee’s demand was unjust.</p> <p>3. Costs <&wkey;32(3) — Partial Success by Complainant-Dividing Costs.</p> <p>In a suit to restrain mortgage foreclosure, where complainant, having contested amount claimed due upon interest and also collection of attorney’s fees, was. successful as to former claim, but unsuccessful as to latter, the costs of the suit should be equally divided.</p> <p>4. Costs <&wkey;23<D-AppEAL — Modification of Judgment.</p> <p>Where appellant, against whom more costs had been taxed, succeeds, on appeal, in having costs equally divided and in having amount of attorney’s fees fixed as part of mortgage indebtedness by court in amount of $100 reduced to $40, tbe costs, on appeal, should bo taxed against appellee.</p>

<p>Judgment i&wkey;138(3) — Default — Opening»— Misnomek in Summons.</p> <p>Judgment by default against the Tennessee River Navigation Company will not be set aside because “River,” in its corporate name, waa omitted from summons, where copy of complaint, wherein name was correctly given, was served on company, which also was named correctly in sheriff’s return.</p>

J. J. Campbell was convicted of keeping intoxicating liquors for sale or other unlawful disposition, the judgment was affirmed by the Court of Appeals (16 Ala. App. 452, 78 South. 715), and he petitions for certiorari.

<p>1. Divorce <&wkey;326 — ¡Foreign Decree.</p> <p>A foreign divorce is presumptively legal and binding on the parties thereto.</p> <p>2. Dower <&wkey;52 — Bar—Divorce.</p> <p>A wife divoi’ced a vinculo cannot undei’ any circumstances claim dower after death of her husband; such right being, expressly excluded by Code 1907, § 3816.</p> <p>3. Dower <&wkey;2 —Bar—Foreign Divorce — What Law Governs.</p> <p>A foreign divorce from the bonds of matx-imony bars the wife’s dower, unless preserved by the lex rei sitae.</p>

<p>1. New Trial <&wkey;102(9) — Newly Discovered Evidence — Failure to Produce at Trial-Fact oe Marriage at Time oe Execution oe Deed.</p> <p>Where defendant recovered judgment, after testifying that she was married at time of execution of deed and after court’s charge that in-such event deed was invalid, plaintiff was entitled to new trial upon newly discovered evidence negativing- fact of such marriage, where deed to defendant, executed on day of execution of former deed, having been in defendant’s maiden name, and sale proceedings having treated her as single, plaintiff had no reason to anticipate such evidence.</p> <p>2. New Trial <&wkey;103 — Newly Discovered Evidence — Materiality.</p> <p>Where court charged jury; that deed was invalid if defendant was married at time of execution, and defendant testified to having been married at such time, evidence discovered after judgment for defendant, and which negatived fact of marriage, was material.</p>

Proceeding between Benjamin Hardeman and others, pro ami, and Sara A. Hardeman. Erom a decree, the former appeal, and the latter brings a cross-appeal. The following is the last will and testament of Benjamin P. Hardeman: I appoint my wife, Sara A. Hardeman, ex-jcutrix without bond. Not required to report.

<p>1. Judgment <&wkey;3Sl — Void Judgment — Purging Records of Court.</p> <p>If a judgment, on its face or the face of its record, is void, it is a nullity; and, as it is calculated to mislead, the court, ex mero motu, or on motion of a stranger, or amic'us curice, may purge its records of such void matter.</p> <p>2. Costs &wkey;57 — Motion to Set Aside -Judgment.</p> <p>By Code 1907, § 4144, where motion to set aside judgment or decree is contested, the costs must be adjudged against the unsuccessful party.</p> <p>3. Appearance <&wkey;15 — Lack of Authority in Counsel — Effect on Judgment.</p> <p>If counsel, who appeared for defendants in certiorari proceedings, had no authority to appear for any particular party, the fact did not make the judgment absolutely void on its face.</p>

Wert, Judge. Bill by Etta B. Fair and Lydia E. Hughes against' W. S. Cummings. From a decree for defendant, complainants appeal. Bill filed on August 14, 1914, by Etta B. Fair and Lydia E. Hughes, seeking- a cancellation of a certain mortgage executed to the respondent on real estate therein described, situated in the city of Decatur, Ala.

E. Fort, Judge. Lewis Russell was convicted of murder in the first degree, and he appeals.

C. B. Gwin, Judge. Action by J. W. Bunn against the Tennessee Coal, Iron & Railroad Company, for damages to land. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

Kyle, Judge. Walter Hardley, alias, was convicted of murder in the first degree, and he appeals. Transferred from the Court of Appeals under section 6, p. 450, Act of April 18, 1911.

<p>Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge. .</p> <p>Suit by Theobald Boylan and others against Albert F. Wilson. From decree for defendant, complainants appeal.</p> <p>Tlje contract between the parties follows: “July 13, 1916. This agreement made by and between Annie U. Boylan, Theobald Boylan and Sallie M. Boylan, parties of the first part, and Albert F. Wilson, party of the second part, on this July 13, 1916. Whereas the parties of the first part have agreed to sell and convey unto the said Albert F. Wilson and the said Albert F. Wilson has agreed to buy, all their right, title and interest in and to lots 9 and 10 on north side of Madison avenue, according to the Pittman plat, for the sum of $1,809.00 clear of all expenses contingent to said sale. But said sale and transfer are subject to said payment, a good title, and is to be closed within a period of sixty days from date, and said deed is to be signed and delivered to the cashier of the Exchange National Bank, to be held in escrow by him until completion of sale and delivery of check by second party. Said parties of the first part are to furnish abstract for examination of title.</p> <p>“Annie U. Boylan,</p> <p>“Sallie M. Boylan,</p> <p>“Theobald Boylan,</p> <p>“Per Theobald Boylan.</p> <p>“It is further agreed that all taxes due and assessed against the property for the year 1916 shall be paid by the party of the second part, and all rents to be collected by parties of the first part until the deal is closed.</p> <p>“Albert F. Wilson.”</p>

<p>1. Sales <&wkey;71(4) — Linters—Contract—Number or Bales — Rules of Association — “Estimate.”</p> <p>Statement of “expectation to make some 560 bales, but we may have * * * 700 bales, then it might not exceed 300 bales” is not an “estimate,” within rule of Cotton Seed Crushers Association, as to sale of season’s output of linters, when “estimated” number of bales is stated.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Estimate.]</p> <p>2. Sales &wkey;>71(4) — Season’s Make — Obligation to Run Mill.</p> <p>Contract of sale of “season’s make” of linters imposes no obligation to opferate mill to produce linters.</p> <p>3. Sales <&wkey;-71(4) — Subject-Matter—Quantity — Output oe Plant.</p> <p>Where the seller engages to sell and deliver the output of his plant and the buyer engages to take and pay therefor, the buyer is liable to the seller for the damages resulting from the refusal of the buyer to receive and pay for the make or output that the seller’s plant has actually produced.</p>

<p>1. Appeal and Error <&wkey;1078(l) — Review —Waiver op Assignments.</p> <p>The review of the Supreme Court must be restricted to rulings complained of by the assignments of error insisted upon in the brief filed for appellant on submission of the appeal.</p> <p>2. Evidence <&wkey;243(2) — Declaration by Agent or Employe — Recital oe Past Transaction.</p> <p>An agent or employs cannot bind his principal or employer by a recital — not of the res gestse of the event — of a past act or transaction.</p> <p>3. Master and Servant <&wkey;270(9) — Injuries to Servant — Evidence.</p> <p>In a servant’s action for injuries while replacing a wedge on a planing machine, testimony of the employer’s foreman as to his prior harmless experience in replacing the wedge while the machinery was running was material and relevant.</p> <p>4. Witnesses <&wkey;388(5) •— Contradiction —Laying Predicate.</p> <p>In servant’s action for injuries, plaintiff’s question to foreman whether he had not stated that same gear caught his sweater, designed-to elicit testimony warranting introduction of evidence contradictory of foreman, who had testified sweater had been caught some time before in mailing different repair, was proper.</p> <p>5. Damages <&wkey;64 —< Evidence — Indemnity oe Defendant.</p> <p>On trial of action for damages, evidence that defendant is indemnified against pecuniary loss because of injury to plaintiff, oa that a representative oa an attorney of an insurance company is defending or directing the defense of the action, is inadmissible.</p> <p>6. Appeal and Error <§=>1060(1) — Harmless Error — Conduct oe Counsel — Oure.</p> <p>In servant’s action for injuries, where no statement was made before jury that defendant was indemnified, and person inquired about represented employer, and not insurer, while court instructed that side remarks of counsel were not to be considered, and plaintiff’s counsel empha*sized denial that person represented insurer, instruction, with statement person did not represent indemnitor, obviated prejudice to employer.</p>

<p>1. Principal and Agent <&wkey;22(l) — Evidence oe Agency — Declaration of Agent.</p> <p>Where the fact of agency rests in parol, or is to be inferred from the principal’s conduct, and there is evidence tending to show agency, the agent’s acts or declarations are admissible.</p> <p>2. Principal and Agent <&wkey;-23(2) — The Relation — Circumstantial Evidence.</p> <p>Agency may be proved by circumstances.</p> <p>3. Principal and Agent <&wkey;23(l) — The Relation — Sufficiency of Evidence.</p> <p>Evidence held sufficient to establish agency for a corporation, to sell its capital stock.</p> <p>4. Principal and Agent <&wkey;115(2) — Defenses against Principal — Representations of Agent.</p> <p>The principal is bound by the inducing representations of its agent in selling its stock that the buyer would not have to pay the balance of price above cash payment and mote given, but that the dividends would satisfy it.</p> <p>5. Corporations <&wkey;82 — Subscription — Action — Defense.</p> <p>Agreement of plaintiff in selling its capital stock that balance of price above cash payment and note given will be satisfied out of stock dividends, to be available as defense to action for such balance, does not require buyer to have demanded application of dividends.</p> <p>6. Principal and Agent <&wkey;28 — Presumption — Continuance.</p> <p>Continuance of the established personal relation of agency will be presumed till the contrary is shown or a different presumption is raised from the nature of the subject.</p> <p>7. Corporations <&wkey;82 — Subscriptions — Modification of Contract.</p> <p>Right of purchaser of plaintiff’s capital stock, under agreement that balance of price over cash payment and note given would be satisfied out of stock dividends, was not changed .by the fact that, on plaintiff refusing to give certificate without payment of balance, he executed note and mortgage therefor, on selling agent’s advice, to secure certificate; this not being a distinct transaction, but the product of, consequent on, and not inconsistent with, original contract.</p>

Albert Sanders was convicted of murder, and lie appeals. The following are tbe charges refused to the defendant and directed to be set out: “(d) The evidence against the defendant is circumstantial, and his innocence should be presumed by the jury until his guilt is established by the evidence, in all the material aspects of the case, beyond a reasonable doubt and to a moral certainty.” (5) Same as (d), and adds: “To find him guilty, the evidence must be strong and cogent;…

. Appeal from Circuit Court, Jefferson County; Hugh1 A. Locke, Judge.’ Bill by Fannie J. Howell against the Birmingham Trust & Savings Company and others, to cancel a note and mortgage because given for,the debit of the husband. From decree for complainant, respondents appeal. Fannie J. Howell and husband jointly executed a mortgage and note to the Alabama Penny Savings Bank, which1 was transferred by it to the Birmingham Trust & Savings Bank.

J. Curtis, Judge. Action by Pherbia Hudson against Wilson & 'Co., and others. From judgment in her favor for part of the relief demanded, plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

<p>Appeal from Circuit Court, Escambia County; A. E. Gamble, Judge.</p> <p>Quo warranto by the 'State of Alabama, on the relation of R. E. Adams, against M. R. McLellan. From an order for respondent, the State appeals.</p>

<p>1. Pleading <&wkey;8(16) — Conclusion's—Undue Influence.</p> <p>An allegation that “J. took unfair advantage of her needy condition, her yielding disposition, her confidence in and affection for him, and his position as administrator of estate of F., deceased, and did abuse her confidence in him,” held insufficient averment of undue influence; no sufficient facts being alleged to support pleader’s conclusions.</p> <p>2. Pleading <&wkey;ll — Evidence.</p> <p>It is unnecessary to allege evidence.</p> <p>3. Equity <&wkey;153 — Pleading—Inferences.</p> <p>Bills should be sustained on the facts alleged, and not those inferred.</p> <p>4. Pleading <&wkey;8(15) — Conclusions—Fraud.</p> <p>A general charge of fraud, without alleging the facts, is insufficient.</p> <p>5. Equity &wkey;>142 — Argumentative Allegations.</p> <p>Argumentative allegations and expressions of opinions in bills axe objeotipnable.</p> <p>8.Equity <&wkey;153 — Construction—Against Pleader.</p> <p>Bills are construed against pleader.</p> <p>7. Cancellation of Instruments &wkey;>37CPPleading — Bill.</p> <p>Material averments in a bill to rescind and annul a contract should be made directly and positively and be sufficiently complete to enable court to ascertain, without the evidence, complainant’s rights.</p> <p>8. Equity (&wkey;133 — Bill—Facts Constituting Cause of Action.</p> <p>A bill in equity must contain allegations of every essential fact necessary to show plaintiff entitled to the relief prayed for.</p> <p>9. Equity <&wkey;143 — Bill—Certainty.</p> <p>The facts alleged in bill must be stated with sufficient certainty and clearness to distinctly inform defendant of the nature of the ease he is called upon to defend.</p> <p>10. Deeds <&wkey;211(3) — Fraud—Sufficiency of Evidence.</p> <p>In action to cancel deed, evidence held insufficient to show that defendants procured conveyance through fraud.</p> <p>11. Deeds <&wkey;72(4) — Undue Influence — Relative.</p> <p>The fact that grantor and grantee are related by blood and that grantee is manager of grantor’s business does not render deed invalid, where there is no evidence that grantee procured conveyance by means of improper influence.</p> <p>12. Deeds <&wkey;211(4) — Undue Influence — Evidence — Sufficiency.</p> <p>Grantor’s declaration after execution of deed that grantee had requested' him to make conveyance is alone insufficient to impeach deed.</p> <p>13. Deeds <&wkey;72(l) — “Undue Influence.”</p> <p>Influence proceeding alone from sympathy or affection for grantee is not sufficient to invalidate deed, and to be “undue” influence must be such as to dominate grantor’s will and to coerce it to serve the will of another in the act of conveying.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Undue Influence.]</p> <p>14. Deeds <&wkey;72(2) — Undue Influence — Age of Grantor.</p> <p>Advanced age of grantor is not sufficient to invalidate deed on ground of undue influence in the absence of showing that grantor’s intellect was so impaired as to make him incapable of acting intelligently as to the conveyance.</p> <p>15. Deeds <&wkey;211(4) — Undue Influence — Delay in Asserting Invalidity — Evidence.</p> <p>Where. grantor did not complain of undue influence until a long time after the conveyance, his continued acquiescence in the transaction without complaint, if not amounting to laches, is strongly persuasive of the validity of the transaction.</p>

<p>1. Counties &wkey;»67 — Removal of Officers— Constitutional Law.</p> <p>Gen. Acts 1915, p. 413, § 62 et seq., relating to appointment and duties of members of county boards of equalization, fixes a definite term of office, that is protected by Const. 1901, §§ 173, 175.</p> <p>2. Officers <&wkey;100(2) — Compensation — Board of Equalization.</p> <p>Under Gen. Acts 1915, p. 413, § 62 et seq., when reasonable compensation for members of county board of equalization is fixed by court of county revenue, or other court or hoard of like jurisdiction, it becomes fixed in sense that it is not subject to diminution or increase during the term of office, under Const. 1901, § 281.</p> <p>3. Courts <&wkey;123 — “Court of Record.”</p> <p>The court of county revenue of Franklin county corresponds to the courts of county commissioners, or boards of revenue in other counties, and is a “court of record,” under Code 1907, §§ 3306,.3314, 3321.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Court of Record.]</p> <p>4. Counties <&wkey;56 — Orders of County Board — Entries by Ex-Official — Expunging.</p> <p>Entry of a formal judgment or resolution on the minutes of the court of county revenue by au ex-official, under color of his former office, is void, and such entry may he expunged from its record by such court.</p> <p>5. Counties <&wkey;53 — Records — Board of Equalization — Compensation.</p> <p>Under Gen. Acts 1915, p. 414, § 70, to become fixed, the compensation of members of the county board of equalization must be shown in writing in the records of the court of county revenue.</p> <p>6. Counties <&wkey;53 — Records — Board of Equalization — Fixing Compensation — Proof.</p> <p>To determine whether a court of county revenue has fixed the compensation of members of the county court of equalization, under Gen. Acts 1915, p. 414, § 70, where the per diem compensation and expenses of the members as entered on the records was for aggregate sums, itemized claims filed, recorded, audited, and passed on, may be referred to.</p>

A. Pearce, Judge. Action by the Atlanta & St. Andrews Bay Railway Company against the Farmers’ Cotton Oil Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act of April 18, 1911, p. 450.

O. Crow, Judge. Action in assumpsit by the Mutual Loan Society, Incorporated, against J. T. Lowery. Judgment for ‘plaintiff and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. The note, the basis of the suit, was executed by defendant in payment of his subscription for 50 shares of the capital stock of the plaintiff corporation, to be issued when the note was paid.

<p>Appeal from Circuit Court, Jefferson County; H. A. Sharpe, Judge.</p> <p>Action by Anderson Jaffe against Walter K. McAdory. From a decree sustaining defendant’s demurrer to plaintiff’s bill, plaintiff appeals.</p>

Clair County; O. A. Steele, Judge. Action by A. L. Pemberton against the Seaboard Air Line Railway Company for damages for personal injury. Judgment for plaintiff, and defendant appeals. Transferred from) Court of Appeals under Acts 1911, p. 4S0, § 6.

Suit by F. B. Buck against the Bransford Mills of Kentucky, in which the Owensboro Banking Company filed a claim to property attached. There was a judgment of the Court of Appeals (16 Ala. App. 346, 77 South. 940), reversing a judgment holding the property subject I to attachment, and plaintiff petitions for certiorari.

<p>Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.</p> <p>Suit by D. M. Graham and another against Peter H. Graham and others. Prom the decree rendered defendants appeal.</p>

<p>Certiorari to Court of Appeals.</p> <p>Action by the Kendrick Mercantile Company against W. W. Quarles and another. Judgment for plaintiff was affirmed by the Court of Appeals (16 Ala. App. 480, 79 South. 160), and defendants petition for certiorari.</p>

Duke, Judge. Action by Richard Underwood, pro ami, against the Montevallo Mining Company, a corporation, for personal injury. Judgment for plaintiff, and defendant appeals. The following matter is directed to be set out: Assignment 4.

<p>Appeal from Circuit Court, Henry County; H. A. Pearce, Judge.</p> <p>Action by W. H. Mills against J. W. Crawford. From adverse judgment, defendant appeals. Transferred from the Court of Appeals under section 6, Act of April 18, 1911, p. 449.</p>

<p>Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.</p> <p>Rich Patterson and. Fannie Harris were convicted of murder in the first degree, and appeal.</p>

<p>Certiorari to Court of Appeals.</p> <p>Action by Thomas McWilson against J. Turner Rhodes. Judgment for plaintiff affirmed by Court of Appeals (16 Ala. App. 315, 77 South. 465), and defendant brings certiorari.</p>

<p>Appeal from -Law and Equity Court, Marengo County; E. J. Gilder, Judge.</p> <p>Statutory action in nature of ejectment by Sallie U. Bju’d against George W. Harris. Judgment for plaintiff, and defendant appeals.</p>

Petition by the State of Alabama, on the relation of E. A. Meador and others, as executors of the estate of D. J. Meador, deceased, to compel R. I. Jones, judge of the circuit court, to abate the action against petitioners as such executors.

<p>Appeal from Circuit Court, Dallas County; B. M. Miller, Judge.</p> <p>Bill by Emma Jones against the City of Selma to abate a nuisance. From an order overruling a demurrer to the bill, defendant appeals.</p>

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

<p>Appeal from Circuit Court, Jefferson County ; Romaine Boyd, Judge.</p> <p>Action by the Empire Mining Company against P. B. Bowers. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911 (Acts 1911, p. 449).</p> <p>The following is the statement of facts as made by the appellant’s brief:</p> <p>“Appellant, within the time and as required by law, filed return of its lands, which was all of its property, with the tax collector of Jefferson county, Ala., for the tax year beginning October 1, 1915. and ending September 30,1916. On June 1, 1916, appellant received notice from the board of equalization of said county of a proposed increase in the valuation for taxation of this property over the valuation of the preceding year.</p> <p>“Appellant appeared before the board on the third Monday in June, 1916, and the board declined and refused, as a board, to hear the1 objections of appellant, or of any other property holder. The board announced publicly that it was. physically impossible, on account of the number of property holders cited (there being several thousand different property holders who had been cited to a raise as appellant was) for the full board, or a majority of the board to pass upon or consider the objections of any property holder, and that each member of the board separately would hear and pass upon the objections of the property holder coming before each separate member of the board, and further announced that the cases of the different property holders would he heard in the order in which property holders presented themselves, except that, if the property holder desired his ease set down for a particular day, the case would be set.</p> <p>“On application of appellant the board fixed July 12, 1916, as a day for hearing appellant’s case, and the objections of appellant, and on that day appellant appeared before the board, and the chairman of the board referred the hearing' of appellant’s case to ono Klyce, a member of the board, and Klyce heard the objections andi fixed the valuation of appellant’s property at $52,580, and entered this valuation as the tax valuation of the property on the proper tax record, and required appellant in writing to agree to this valuation. At the time Klyce heard appellant’s case, the other two members of the board were in the same room, within a few feet of Klyce, using the same books, and at the same time each hearing the case of a property holder as Klyce was hearing the case of appellant.</p> <p>“The board, as a board, declined and refused to hear any ease of any property holder, and it was understood by each property holder that the decision of the member of the board, hearing the case, was final. From the time of the.fixing of the valuation by Klyce of appellant’s property on July 12, 1916’, which valuation appellant agreed to, and in writing on the direction of Klyce, agreed to on the tax records, the appellant supposed that its case was settled and disposed of, and heard nothing further in regard to the case until the 23d day of September, 1916, when it received notice by post card through the mail, purporting to be signed, by the chairman of the board, which post card notified appellant in substance that on September 22, 1916, the valuation of appellant’s property as fixed, by Klyce had been changed to $70,-6B0, and appellant then, upon examining the tax records, ascertained that some one had made a change on the tax records of the assessed valuation to $70,650; in lieu of the valuation of $52,560 as fixed by Klyce.</p> <p>“From the time the valuation was fixed by Klyce on July 12, 1910, toi the time appellant received said post card on September 23, 1916, appellant had no knowledge, information, or notice that the board of equalization, or any member thereof, was dissatisfied with the valuation fixed by Klyce, or that the board, or any member thereof, was going to take up or consider or pass upon the valuation of appellant’s property again on September 22, 1916, or at any other time.</p> <p>“Appellant does not know who made the change in the valuation, on September 22, 1916, or whether there was a special session of the board at that time, or, if a special session, ■whether the whole board or any two members of the board ordered or made the change.</p> <p>“After receiving the post card notice of the increase in valuation, appellant filed a petition for mandamus, to require the valuation as fixed by Klyee to be reinstated on the tax records. The case went to the Supreme Court, and the Supreme Court adjudged that the valuation as fixed by Klyee was invalid, and that appellant could not force a reinstatement of that valuation.</p> <p>“The tax valuation of this same. property of appellant for the preceding year was $54,600, and, pending the litigation in the mandamus case, when taxes became due, as required by law, appellant paid to the tax collector taxes on this property on the valuation of $54,600, or the preceding year’s valuation.</p> <p>“After the Supreme Court decided the mandamus case, the tax collector of Jefferson county made demand on appellant for taxes on the changed valuation of the property of $70,650', less a credit of the taxes paid on the preceding-year’s valuation of $54,600, and, on the refusal of appellant to pay, was proceeding to make sale of appellant’s property, and on June 6, 1917, in order to prevent a sale, and under protest, appellant paid to the tax collector $364.36, which was the amount the collector then demanded, appellant giving notice at the time of payment that it would sue to recover the amount paid:</p> <p>“The appellant filed suit to recover this amount on June 7, 1917. The defendant filed a demurrer to the complaint (there being but one count in the complaint), and on the hearing the court sustained the demurrer, to which ruling of the court the plaintiff excepted, and then the plaintiff took a nonsuit with bill of exceptions, and this appeal is taken by appellant, and the ruling of the court in sustaining the demurrer is assigned as error.</p> <p>“There is but one count in the complaint, and the facts are more fully set forth in the complaint. Attention is called to the fact that under a general law approved March 24, 1911 (Acts 1911, p. 130), the tax collector of Jefferson county algo collects the taxes of the city of Birminghanl.”</p>

<p>Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.</p> <p>Suit by Eua Wehrhan against the White Swan Laundry Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals of Alabama under section 6, Act April 18, 1911 (Laws 1911, p. 449).</p>

<p>Appeal from Circuit Court, Jefferson County; H. A. Sharpe, Judge.</p> <p>Application by the State of Alabama, on the relation of Jefferson County, for mandamus directed to Wm. J. Waldrop as clerk. From a decree denying the writ, petitioner appeals.</p> <p>This case arises upon a judgment rendered by the circuit court of Jefferson county dis-' missing a petition for mandamus, filed by the relator, directed to William J. Waldrop as clerk of the circuit court, in which a writ was sought, commanding him to pay into the county treasury of Jefferson county solicitor’s fees, taxed in criminal cases:, prosecuted in the circuit court of Jefferson county, since the 1st day of August, 1917. The petition shows that the clerk of the circuit court has in his possession $1,440, the proceeds of solicitor’s fees, taxed in criminal cases, prosecuted in the circuit court, by the circuit solicitor, of the Tenth judicial circuit, collected since the 1st day of August, 1917, on which date, as is shown by the petition, the county solicitor, Hugo Black, • resigned. The petition shows that under a series of local laws of Jefferson county the county solicitor’s fees taxed in criminal prosecutions were payable into the county treasury to be used by the county solicitor for various purposes, in the suppression of crime, and that under the operation of said local laws said fee when so paid into the county treasury became designated and known as the solicitor’s fund. The resignation of Solicitor Black was accepted and took effect on the 1st day of August, 1917, and his successor has never been' appointed.</p> <p>The theory advanced by the petition in this cause is that under section 10 of a general act of the Legislature of 1915, approved September 25, 1915, page 823 of General Acts of 1915, that the local laws or special acts providing for the payment of the county solicitor’s fees into the county treasury are made applicable to the circuit solicitor, and that therefore the fees taxed in criminal prosecutions by the circuit solicitor, since Black’s resignation, should be paid into the county treasury just as they were under the county solicitor’s administration.</p> <p>The theory of the respondent is that said fees, taxed since the 1st of August, 1917, are payable into the state treasury as provided in section 7792 of the Code of Alabama of 1907.</p>

P. Almon, Judge. Action by the Capital Fertilizer Company against the Ashcraft-Wilkinson Company, for breach of contract. From a nonsuit rendered on overruling demurrers to defendant’s plea, plaintiff appeals.

<p>1. Explosives &wkey;2 — Gasolines, Benzines, Naphthas — Validity oe Ordinance.</p> <p>An ordinance providing for the inspection of gasolines, benzines, naphthas, and requiring the specific gravity thereof at 00 degrees Fahrenheit to be between 58 and 84, is void for uncertainty, and because unreasonable and impossible of performance; the specific gravity of heaviest substance known being only 22.5.'</p> <p>2. Explosives <&wkey;3 — Ordinances—Construction.</p> <p>An ordinance that “gasolines, benzines, and naphthas shall have a specific gravity at 60 degrees Fahrenheit of not less than 58 or more than 84,” being clearly expressed and unambiguous, will not be construed as if the word “specific” was omitted, and the words “degrees Baume” added at the end, or as though there was a decimal point before the 58 and 84, although, being unreasonable and incapable of performance as it stands, it would, by such construction, be made reasonable and capable of enforcement.</p> <p>8. Municipal Corporations <&wkey;120 — Ordinances— Construction — Words Omitted— Grammatical and Typographical Errors. In construing an ordinance, courts may supply words by construction, or substitute one for another, where it appears that a typographical or grammatical error has been made, and where, construed as a whole, the ordinance is self-correcting, but not to correct legislative errors.</p> <p>4. Explosives <&wkey;l — Police Power — Use op Gasoline — Regulation.</p> <p>A city has no power to absolutely prohibit the use of gasoline, benzine, and naphtha, but merely to regulate and control the sale, use, and disposition thereof.</p> <p>5. Municipal Corporations <&wkey;120 — Ordinances — Construction—Extrinsic Aid.</p> <p>Where scientific or technical words or terms are used in an ordinance, extraneous evidence is proper to show meaning thereof, but not to instruct court as to word or phrase lawmakers should have used to make the law reasonable.</p>

S. Lewis, Chancellor. Bill by Rudolph Dinkins. and others against H. S. Latham. Prom the decree rendered, complainants appeal. The amendment to the bill, referred to in the opinion, is as follows: A10.

<p>Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.</p> <p>Bill in equity by John R. Tyson against W. D. Hale. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Wills &wkey;>616(6) — Construction — .Estates Devised.</p> <p>Will giving life estate to wife with remainder to others, wife to have privilege of changing remainder interests upon certain conditions, conferred no absolute power of disposition upon wife, within Code 1907, §§ 8423-3426,- as .to particular estate being changed to fee by giving owner an absolute power of disposition.</p> <p>2. Wills <&wkey;616(6) — Construction — Estates Devised.</p> <p>A will devising to testator’s wife property to be used for her sustenance and comfort during her life and giving what is left to others, the wife to have privilege of changing clevises to remaindermen upon happening of certain contingencies, gave her a life estate only, and with respect to remainders a power to divest and substitute another or others (not herself) as beneficiary or beneficiaries upon happening of contingency specified.</p> <p>3. Wills <&wkey;630(S) — Construction — Estates Devised.</p> <p>Under will devising to testator’s wife property to be used for her sustenance and comfort during her life and giving what is left to others, the wife to have privilege of changing devises to remaindermen upon certain contingencies, devisees of remainder upon death of testator become vested with remainders in fee, subject to conditions subsequent that wife should have privilege of making change.</p> <p>4. Wills <&wkey;10-L-CoNDiTioN Subsequeno^Validity— Certainty.</p> <p>Condition subsequent that wife to whom was devised a life estate should have right to divest devisees of remainders in fee, if they should not “treat her right during her life,” was not void for uncertainty; uncertainty effecting only ascertainment of existence of conditions subsequent.</p> <p>Mayfield, T., dissenting.</p>

<p>1. Mortgages &wkey;593 —. Redemption — “Property.”</p> <p>The right of redemption from mortgage foreclosure as given by Code 1907, § 5746, is transferable either before or after foreclosure and gives a property right under definition of property as right to possess, use, enjoy, sell, and dispose of a thing. (Per Sayre and Thomas, JJ.)</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Property.]</p> <p>2. Mortgages <&wkey;616 — Absolute Conveyance — Security—Right to Redeem.</p> <p>A bill, alleging that mortgagee purchasing at foreclosure sale obtained no deed and did not go into possession, but thereafter secured an absolute deed from mortgagor, the complainant, on parol agreement; to give right of redemption and praying for recovery of land and cancellation of deed, held to be sustained as against demurrer for want of equity based on contention that statutory right of redemption was cut off by the agreement, and that agreement could not be varied by parol, on theory of declaring absolute conveyance security for right of redemption. (Per Sayre and Thomas, JJ.)</p> <p>3. Mortgages <&wkey;32,(3) — Absolute Conveyance — Security—Right oe Redemption.</p> <p>The right to have the deed declared security held not affected by the fact that redemption under Code 1907, § 5746, must have certain formalities, as relief is granted on contract and not statute. (Per Sayre and Thomas, JJ.)</p> <p>4. Mortgages ' <&wkey;616 — Redemption — Agreement Affecting Right — Cancellation — Pleading.</p> <p>A bill, alleging that mortgagee purchasing at foreclosure sale obtained no deed and did not go into possession but thereafter secured an absolute deed from mortgagor, the complainant, on parol agreement to give right of redemption and praying for recovery of land and cancellation of deed, held to be sustained as against demurrer for want of equity on theory of bill to secure statutory right of redemption inequitably denied complainant with cancellation of deed as incidental relief. (Per Gardner, Mayfield, and Somerville, JJ.)</p> <p>Anderson, C. J., and McClellan, J., dissenting.</p>

<p>Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.</p> <p>Bill by C. A. Ivy against J. W. Hood. Decree for defendant, and complainant appeals.</p>

<p>1. Judgment <&wkey;669 — Disclaimer by Complainant — Eeeect.</p> <p>Where one of several complainants moves to strike his name from a bill to quiet title and dismiss it as to him, alleging he has no interest, did not authorize any one to make him a party, and refusing to be bound for costs and expenses, and no action is taken thereon, he thereafter becomes a respondent subject to the court’s jurisdiction, and the decree rendered concludes his interest in the subject-matter of the litigation.</p> <p>2. Appeal and Ereob <&wkey;240 — Parties.</p> <p>Having acquiesced in disclaimer by a complainant seeking to be dismissed from the case, by omitting to test same by proper motion or exception, neither party on appeal will be permitted to insist he is a complainant appealing and joining in the assignment of errors.</p> <p>3. Appeal and Error &wkey;>721(l)— Joint Assignment of Error.</p> <p>A joint assignment by all appellants is unavailable unless well taken as to all.</p> <p>4. Equity <&wkey;71(4) — Laches — Acquiescence and Knowledge.</p> <p>Acquiescence in or knowledge of the assertion of an adverse right, and possession thereunder for an unreasonable time, is the basis of the rule of laches, which rule, after lapse of time, is presumed to attach where the equity of the case demands.</p> <p>5. Equity &wkey;>75 — Laches—Asserting Title —Delay by Reversioners.</p> <p>Right of homestead without occupancy, or right of dower unassigned, do not amount to an estate in lands justifying delay by reversioners in asserting title, but only to a right of action for the land.</p> <p>6. Adverse Possession c&wkey;81 — Possession and Claim oe Ownership — Grantee oe Widow.</p> <p>Land of a decedent not being subject to a life estate in his widow when sold by her, her sale thereof was a sale of the fee, so that her grantee’s possession and claim of ownership thereunder and thereafter would suffice to complete the -bar of the statute if retained for sufficient time.</p> <p>7. Adverse Possession <&wkey;62(3) — Possession oe Dwelling House — Dower—Nature oe Right.</p> <p>Code 1907, § 3824, giving a widow right to possession of a dwelling house, with appurtenances free of rent, till dower assigned, gives her no property right that would by such occupancy defeat the ultimate title and right of possession descending to heirs.</p> <p>8. .Dower <&wkey;33 — Assignment oe Right.</p> <p>The right of dower is in its nature a right of action not assignable otherwise than by a release to the heir or terre-tenant, and operating by way of extinguishment, and not by way of conveyance.</p> <p>9. Homestead <&wkey;141(l) — Right oe Widow— Abandonmeni^-Rights oe Heirs.</p> <p>' Right of homestead where the fee is not taken under the statutes is the right of the widow to occupy the land during her life.</p> <p>10. Homestead <&wkey;146 — Right oe Widow-Abandonment — Rights oe Heirs.</p> <p>If by her alienation of homestead the widow abandons such right, the heir is given the right to immediate possession and right of action.</p> <p>11. Dimitation oe Actions <&wkey;72(l) — Computation oe Period — Infancy.</p> <p>Exception for additional time given by Code 1907, § 4846, to infants, does not enlarge the statute, but merely gives the person under disability the specified additional time in which to act or sue.</p> <p>12. Adverse Possession &wkey;>33 — Evidence-Knowledge oe Adverse Claim.</p> <p>Evidence heH to show that complainants knqw of an adverse claim to land in controversy so as to impose on them the duty of asserting their right of action therefor within the bar of the statute.</p>

Turner, Judge. Suit by James E. Carpenter against Sallie Carpenter. From a decree sustaining demurrer to the bill, complainant appeals. This cause was previously before the court for consideration of the decree overruling the demurrer to the original bill, resulting in a reversal of the decree of the court below.

<p>Appeal and Error <&wkey;753(2) — Failure to Assign Errors — Affirmance — Rule of Court.</p> <p>Under Supreme Court Practice Rules, No. 1 (20 South; iv), appellant’s failure to assign any errors requires affirmance.</p>

<p>Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.</p> <p>Suit by the United States Fidelity & Guaranty Company against H. M. Hartón. From an order overruling motion for temporary injunction, complainant appeals.</p> <p>The bill in this cause was filed by appellant against the appellee, and sought to enjoin the appellee from enforcing against appellant, by execution, garnishment, or otherwise, a judgment which had been theretofore rendered in favor of said appellee by the Supreme Court of Alabama, on an appeal from a judgment rendered by the probate court of Jefferson county.</p> <p>The facts, as set forth in the bill, may be briefly stated as follows: H. M. Hartón, respondent to the bill, was in March, 1905, adjudged insane, and one C. B. Powell appointed as his guardian, and the United States Fidelity & Guaranty Company became surety.on the guardian’s bond, which was dated March 17, 1905. In May, 1907, said Hartón was restored to sanity, and in July, 1907, said Powell, as guardian, filed his accounts for settlement '¡in the probate court. During the time of the insanity of Hartón, and pending the term of guardianship of Powell, the said Powell, seeking to enforce the rights of his ward, filed a bill in chancery as such guardian, and, in the course of the proceedings, the litigation was settled by said Powell as an individual and also as guardian of Hartón, Under said settlement the guardian was paid 82,550, as shown by the agreement attached to the bill. The settlement was had on January 10, 1906. Hartón was subsequently restored to sanity, and after Powell had filed his accounts for final settlement of his guardianship, he agreed with Hartón that a final settlement would be postponed for the purpose of Hartón asserting his rights against the respondents in the proceedings wherein the guardian had made settlement, as heretofore stated, on January 10, 1906.</p> <p>In March, 19OS, the complainant filed its petition in the probate court seeking to be released from the bond of said Powell as guardian; and on the same day an order was entered releasing complainant from liability on said bond, and requiring the said Powell, as guardian, to execute a new bond, which was not done, and no action was taken to enforce the giving of said bond, or the removal of said guardian, but that complainant has been without fault or- negligence in the matter of the probate court to require a new bond; that by reason of the agreement and postponement in the settlement above referred to the complainant has been discharged from any and all liability on said bond. Subsequently, in March, 1910, said Hartón filed his bill against the respondents, who were parties to the litigation by his guardian in which he repudiated the settlement that had been made by his guardian on January 10, 1906, and sought to recover all of his rights, which were involved in said settlement, and to require the respondents to account to him for the property which they had acquired by reason of the settlement which Johnston had had with his guardian. This litigation continued until May, 1915, when the same was settled by agreement entered into by Hartón and respondents by the terms of which Hartón was conveyed property of considerable value, and judgments against him were canceled. A copy of the agreement is made an exhibit to the •bill.</p> <p>The bill further avers that after this settlement, and after Hartón had received all the benefits to be derived from the repudiation of the sale and transfer made by his guardian he filed a petition in the probate court to compel a settlement of the account of Powell, as guardian. And it was on this settlement that judgment was rendered against Powell, as guardian, the enforcement of which is now sought to be restrained. It is further averred that by said conduct Hartón had estopped, himself from claiming the proceeds of said settlement. The bill also avers that complainant!, surety on the bond, did not know of the repudiation by Hartón of the settlement which Powell had made with Johnston, and that Hartón had been paid for his interest involved in the settlement with his guardian until after judgment had been rendered in the case of Hartón v. Powell in the Supreme Court; and that the amount of the judgment cannot be made by legal process against said Powell, but that complainant will be compelled to pay the same unless relief is awarded in this suit.</p> <p>The settlement proceedings in the probate court resulted in a judgment in favor of Hartón for $1,000 against the said C. B. Powell, as guardian, from which judgment Hartón prosecuted an appeal to the Supreme Court, resulting in a judgment in favor of Hartón against Powell, as guardian, in the sum of $3,574.64 (the case being reported as Hartón v. Powell, 78 South. 373 1), and it is the enforcement of this judgment complainant seeks to restrain. The bill was sworn to, and sought a temporary injunction. The court entered an order overruling the motion for the temporary injunction, and from this order the present appeal is prosecuted.</p>

<p>1. Municipal Corporations &wkey;>908 — Notes —Consideration.</p> <p>Municipal notes, reciting consideration of extras on light and water plant installation, but actually given to tbe contractor to pay tbe difference between the agreed 6 per cent, bonds by which be was to be paid,-and 5 per cent, bonds which he accepted, believing the 6 per cent, bonds would be illegal, did not show illegal consideration, and were valid.</p> <p>2. Municipal Corporations &wkey;>907 — Bonds —Interest.</p> <p>Under Acts Sp. Scss. 1909, p. 192, § 11, which repealed Oode, § 1432, cities of less than 6,000 population may issue bonds 'bearing 6 per cent, interest.</p> <p>3. Municipal Corporations <&wkey;955(2) — Action on Note — Defenses—Pleading—“Incurring Debt.”</p> <p>In action on municipal notes for difference in interest between contract and bond rate, plea that the debt was incurred in violation of Const. 1901, § 225, which prohibits indebtedness in excess of 5 per cent, of the assessed valuation, but excepts debts contracted prior to its adoption, was insufficient when it failed to allege that the debt was in excess of tbe limitation, or to show what portion of tbe debt was in excess, or to show whether the notes were renewals, or whether the indebtedness recited included sums excepted by statute, since tbe mere giving a note is not incurring tbe debt.</p>

E. Blackwood, Judge. Action by John- Porter, as administrator of the estate of M. S. Porter, against the Louisville & Nashville Railroad Company, for damages for the death of his intestate. Judgment for defendant, and plaintiff appeals.

B. Poster, Judge. Bill by the Town of Eutaw against the Eutaw Ice, Water & Power Company for a forfeiture and dissolution of the respondeat corporation. Prom a decree overruling demurrers to the bill, respondent appeals. The substance of the bill sufficiently appears from the opinion.

Locke, Judge. Suit by IS. E. Thompson against T. D. Eppes to foreclose a m.ortgage, and for a deficiency decree. From a decree for complainant, respondent appeals.

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Suit by John J. Benson, individually and as administrator, against the Dixie Industrial Company and others. Prom a decree overruling demurrers, respondents appeal.</p> <p>This bill was filed by John J. Benson, individually and as administrator of the estate of William E. Benson, deceased, against the Dixie Industrial Company, a corporation, the Ko.waliga Academic and Industrial School, a corporation, Alabama Interstate Power Company, a corporation, and one Benjamin Russell. The bill sought the enforcement of a vendor’s lien upon a certain 540 ames of land therein specifically described, and alleges in substance as follows: John J. Benson in 1900 was the owner of 540 acres of land in Elmore county, Ala., and, having contracted for the purchase of 4,56S acres of land in the same or an adjoining county, on which he owed a large sum of money, entered into a contract with the Dixie Industrial Company to sell to said company both of said tracts of land, amounting to 5,108 acres, at the price of $4.25 per acre. The terms and conditions of the purchase, appearing in .a copy of the contract entered upon the minutes of said corporation on November 1, 1900, are as follows:</p> <p>“The said Benson agrees to sell and said company agrees to buy five thousand one hundred and eight (5,108) acres of land described in conveyance of even date at four dollars and twenty-five cents ($4.25) per acre on the following terms and conditions, viz.: The said J. J. Benson is to receive in part payment seven hundred and fifty (750) shares of paid-up capital stock in said company at par value of ten dollars ($10.-00) per share, to be issued as directed by Mm, and said company is to take up the balance of unpaid notes of J. J. Benson still due the loan company et al. on Ms contract for the purchase of four thousand six hundred and eight (4,608) acres of land. It is agreed that, should there be any difference between the price of the lands bought from J. J. Benson and the value of the stock and other obligations assumed by the Dixie Industrial Company, such differences will be covered by note, which will be held by the company in suspense pending final adjustment. Said J. J. Benson guarantees the valuation of said lands to reach at least $5.00 per acre, in which event said note is not to be paid, but to be canceled and surrendered by the company. In the event the value of said lands exceed five dollars per acre, it is agreed that any excess with respect to the five hundred and forty acres of personal lands included in this sale, which it is understood that said J. J. Benson is putting in to pay for stock on his own and on behalf of his son, Wm. E. Benson, shall be paid in additional stock of the company or in cash, or in such other proceeds as said Wm. E. Benson may elect to accept at the time of adjustment, to be made within the expiration, of twenty years from date.</p> <p>“It is expressly understood that the said J. J. Benson, in contracting for the purchase of bulk of said lands from the loan company et al. prior to the organization of said Dixie Industrial Company, have turned them over to the company without desire of making any substantial profits therefrom or expectation of participating in any subsequent enhancement of property values, except only as to his personal lands amounting to five hundred and forty (540) acres above mentioned, which said lands are spendidly improved and under such state of cultivation as to make them now worth more than five dollars ($5.00) per acre, but said J. J. Benson, desiring to aid in the formation and the organization of said company, which could not be completed without such aid, is induced to put in said lands by Wm. E. Benson, on the conditions herein named and agreed to.”</p> <p>It is then averred that the original contract signed between John J. Benson, individually, and the Dixie Industrial Company, is dated the 1st day of November, 1900, and is identical with the copy above set out, with the exception that the next to the last clause, commencing with the words “In the event the valuation of said lands,” and ending with the words “within the expiration of twenty years from date,” is, in the original, in the following form:</p> <p>“In the event the valuation of said lands should exceed five dollars ($5.00) per acre, it is agreed that any excess with respect to the five hundred and forty (540) acres of the personal lands included in this sale, which it is understood that said J. J. Benson is putting in to pay for stock on behalf of his son AYm. El Benson, shall be paid to said son in additional stock of the company, or in cash, or in such other proceeds as said AVm. E. Benson may elect to accept at the time of adjustment within the expiration of twenty years from date.”</p> <p>It is averred that it was the intention of John J. Benson to sign the original contract as appeared in the copy above set out and entered upon the minutes of the Dixie Industrial Company of November 1, 1900, but by mistake or inadvertence, and without his actual knowledge, the above clause, showing a variation between the copy on the minutes and the original as above referred to, was changed so as to be in the terms of the original; and therefore it might appear there was some conflict between William E. Benson and John J. Benson as to the several rights and interests of these parties in result of a settlement as to the 540 acres of land mentioned in the contract, and here sought to be adjusted. But this difference or conflict, if it exists, does not concern the defendants in this suit, but only John J. Benson individually and the estate of William E. Benson, represented by him as administrator. Both of said parties join in this 'suit as complainants, so that there may be no difficulty as to the defendants making an adjustment of the rights of all parties in reference to the said 540 acres of land. The said John J. Benson, individually and as administrator of the estate of William E. Benson, deceased, will adjust their differences, if any, between themselves by separate proceedings hereafter to be instituted, and here join in any and all acquittances which may be necessary to finally adjust the said matter in dispute in this case between the said Dixie Industrial Company and the complainants.</p> <p>The third paragraph avers there has never been any adjustment as provided for in said contract between the complainants, or either of them, and the Dixie Industrial Company, and this bill is filed for the purpose of having said adjustment made. By the fourth paragraph it is averred that the lands contracted to be sold to the Dixie Industrial Company were conveyed to it by two deeds, one for 3,328 acres of land, and the other — by subsequent deed in 1904 — for 1,780 acres, and that said company went into possession of the land so conveyed, and it or its vendees have so remained since; that the value of the said land is and was more than $5 per acre, and the 540 acres of “personal lands,” mentioned in said contract as belonging to said J. J. Benson, individually, were conveyed in said deed of 1,780 acres as of February 12, 1904. Then follow's a description of said 540 acres by government numbers. It is then averred that the Dixie Industrial Company conveyed said lands in 1912 to the respondent Kowaliga Academic and Industrial School, and on the same day a deed was executed to said respondent to the other property referred to in the first deed above mentioned; the consideration for the first deed herein mentioned being $5,000 and 20 notes, and the consideration of the second deed being $2,000, constituting one promissory note.</p> <p>Paragraph 5 of the bill avers that in March, 1913, respondent Kowaliga Academic and Industrial School entered into a contract with the respondent Alabama Interstate Power Company to sell .certain lands acquired (as above stated) from the Dixie Industrial Company, including the 540 acres of individual lands of John J. Benson, at the price of $25 per acre, and in June, 1913, entered into another and more formal agreement with the said Dixie Industrial Company and Kowaliga Academic and Industrial School for the sale of the same lands, but no deed has passed for said lands so far as complainants know to date. Upon information it is averred that $10 per acre has been paid as a cash payment upon said purchase, and $15 per acre is still unpaid, payable as described in the last-mentioned contract. In said contract of the Alabama Interstate Power Company the timber and other rights were reserved.</p> <p>In the sixth paragraph it is alleged that the 540 acres of land, referred to as the individual lands of John J. Benson, are worth $35 per acre, and were worth that amount at the time of the contract of .sale to the Alabama Interstate Power Company, including the reservations. In paragraph 7, it is alleged that under the terms of the contract of sale to the Dixie Industrial Company there was due on the said 540 acres of land the difference between $5 per acre and the value of the said lands at the date of the filing of this bill and at the date of said contract of sale to the said Alabama Interstate Power Company. Complainants now elect to adjust said values as provided by said contract, and elect to take the difference due them, or either of them, in cash, instead of in stock of said Dixie Industrial Company, or in other proceeds.</p> <p>The bill further avers that the Kowaliga Academic and Industrial School has never paid the agreed consideration, and that there is still due on the purchase money agreed to be paid to the Dixie Industrial Company the sum of $20,000, which is a lien upon said lands agreed to be sold to the Alabama Interstate Power Company, and of which lien the said Alabama Interstate Power Company had notice at the time of its purchase. It is further averred that there is due and unpaid the sum of $8,100 by the said Alabama Interstate Power Company for the 540 acres of land, which is a lien upon said land. Defendants to this bill each had notice of complainants’ rights and liens at the time of their several purchases. Respondent Russell is alleged to have purchased the timber upon said 540 acres, reserved in the above sales, which is in part or in whole still uncut, and there is due by the said Russell, or will be due upon his contract of purchase, the sum of $5,000.</p> <p>The bill prays for an adjustment of the amount due the complainants under the terms of the contract on and for the said 540 acres of land described as being the individual lands of said John J. Benson, for the purpose of ascertaining the amount of such liability to the complainants. It is further prayed that a decree be rendered subjecting to the payment of such debt the said 540 acres of land, so far as it may be equitable and just to charge the same for said debt in justice to the purchasers of said lands from the Dixie Industrial Company, and, in the event said lands may not be charged in equity for said debt, that the lien of the Dixie Industrial Company upon said lands against the Kowaliga Academic and Industrial School on the sale of said lands to it, so far as unpaid, may be enforced for complainants’ benefit for the payment of this debt; that the purchase money still due and unpaid from the Alabama Interstate Power Company to the Dixie Industrial Company and the said Kowaliga Academic and Industrial School, to the extent the same may be still unpaid, if necessary, may be condemned and applied to the payment of complainants’ debt. Like relief is prayed as to any unpaid balance as to respondent Russell for the purchase price of said timber. There is also general prayer for relief.</p> <p>Respondents filed separate and several demurrers, attacking the bill for misjoinder pf parties respondent, for multifariousness, and upon the further grounds that the vendor’s lien 'cannot be enforced for an uncertain, contingent, or indefinite demand, cannot be enforced where the description of the land is indefinite and uncertain, cannot be enforced where it appears from the whole transaction that the vendor of the lands trusts to •the personal responsibility of the vendee, and does not look to the land as security; that the lien cannot be enforced by the transferee, who acquires the debt from the vendor, under such circumstances as to relieve the vendor of all liability therefor; that, in order for equity to relieve against the consequence of a mistake, the mistake must be mutual, or must have been induced by the misconduct of the other party; upon the further ground that courts will never give a contract such a construction as will convert it into a mere speculative contract, and where a personal privilege is reserved to a party to a contract, and such party dies without having asserted his right under the contract, the privilege and right expire. There was a decree overruling these demurrers, and from this decree this appeal is prosecuted.</p>

<p>Certiorari &wkey;>39 — Time oe Application-Rules oe Court.</p> <p>A petition for certiorari, filed June 13, 1918, reciting that the application for rehearing in the Court Of Appeals was overruled May 28, 1918, will be dismissed as not being made within 15 days after overruling the application for rehearing by the Court of Appeals, as required by Supreme Court Rule 42' (198 Ala. xiv, 77 South, vii).</p>

<p>1. Equity <&wkey;150(3) — Pleading—Multifariousness.</p> <p>A bill to foreclose a ebattel mortgage was not rendered multifarious by joinder of purchasers from mortgagor of distinct parts of tbe mortgaged property.</p> <p>2. Equity <&wkey;150(l) — Pleading—Joinder of Parties — Interest in Subject-Matter. _</p> <p>_ Where suit has a single object, all parties who are made defendants need not be interested or concerned in all questions involved in the suit.</p> <p>3. Chattel Mortgages &wkey;>269 — Adequate Remedy at Law — Foreclosure.</p> <p>In suit to foreclose chattel mortgage, where mortgaged property was sold by mortgagor and was in possession of purchasers before bill was filed, tbe court’s jurisdiction to render money judgment against purchasers was not subject to the objection that there was an adequate remedy at law.</p> <p>4. Chattel Mortgages <S&wkey;275 — Necessary Parties — Mortgage of Crops.</p> <p>In action to foreclose chattel mortgage on crops, where parties to whom crops were sold were joined as defendants, mortgagor’s son, who was installed on land as tenant, but who was a sort of nomad, without means to operate the farm, was not a necessary party.</p> <p>5. Appeal and Error &wkey;>1039(13) — Review —Harmless Error — 'Variance.</p> <p>Variance between pleading and proof as to ownership of land on which mortgaged crops were grown is not reversible error, where complainants’ rights were based on their interest in the crops and not in the land, and where appellants were not surprised by such variance.</p> <p>6. Chattel Mortgages &wkey;>39~Crops — Foreclosure-Sufficiency of Evidence.</p> <p>In an action to foreclose chattel mortgage on crops, evidence held sufficient to show that at the time of the growing of the crops the mortgagor was a tenant on the land on which they were grown, and hence had a mortgageable interest in the crops.</p> <p>7. Chattel Mortgages <&wkey;>275 — Foreclosure by Action — Parties—Crops.</p> <p>In an action to foreclose chattel mortgage on crops that have been sold by mortgagor, the parties to whom crops were sold were properly made parties to the action.</p> <p>8. Chattel Mortgages <&wkey;>229(l) — Foreclosure by Action — Purchasers — Personal Judgment.</p> <p>In an action to foreclose chattel mortgage on crops, the court properly imposed a personal judgment against purchasers of the mortgaged crops, where they had disposed of such crops.</p>

Locke, Judge. • Bill by the Malone Investment Company against Mrs. Jordan M. Greene, to enforce alleged separate liens under the statute made for the benefit of mechanics and material-men. From an order overruling the demurrer of the Magnolia Land Company, a mortgagee, the latter appeals.

R. Beckwith, Special Judge. Bill in equity to remove cloud from title by Charles P. Gunter against George W. Townsend, Josie Walker, and Sadie Shelton and others. Decree for respondents Walker and Shelton, and complainant appeals.

<p>Appeal from Law and Equity Court, Marengo County; Edward J. Gilder, Judge.</p> <p>Action by J. S. Brasfield against the Robertson Banking Company. Judgment for plaintiff, and defendant ap'peals.</p>

<p>1. Principal and Agent '<&wkey;89(8) — Right to Commissions — Sufficiency of Evidence.</p> <p>In action for commissions on gross sales earned in procuring defendant company right to manufacture patented lathes, and in securing orders for such lathes, evidence held to support verdict for plaintiff.</p> <p>2. Appeal and Error &wkey;>1005(l) — Review-Motion for New Trial.</p> <p>Where trial court had witnesses before it, and opportunity to note their demeanor, Supreme Court is unwilling to predicate reversal on action of court in overruling motion for new trial.</p> <p>8. Appeal and Error <&wkey;197(3) — Objections in Lower Court — Pleading — Amendment —Rule of Circuit Court.</p> <p>Under rule 34 of the Circuit Court (175 Ala. xxi), a point of variance between the allegations of the complaint and the proof, a matter which could have been corrected by amendment during trial of the cause, can avail defendant nothing on its appeal from an adverse judgment.</p> <p>4.. Principal and Agent <&wkey;89(8) — Right to Commissions — Sale Within Agreement-Sufficiency of Evidence.</p> <p>In action for commissions on gross sales earned in procuring defendant company right to manufacture patented lathes, and in securing orders for such lathes, evidence held' to justify finding sale of certain lathes by defendant came within agreement stated by plaintiff.</p> <p>5. Principal and Agent &wkey;=89(5) — Action for Commissions — Common Count for Work and Labor — Evidence.</p> <p>In action for commissions earned in procuring right to manufacture patented lathes, and in securing orders, contract whereby defendant company sold lathes to company owning patents, which had been procured by plaintiff to license manufacture, could be considered by jury in estimating value of plaintiff’s services under common count for work and labor done.</p> <p>6. Principal and Agent &wkey;>89(7) — Action for Commissions — Evidence.</p> <p>In action for commissions for procuring right to manufacture patented lathes, and for making sales of such lathes, where defendant agreed either to pay 10 per cent, of gross sales, or made no contract with plaintiff at all, testimony of plaintiff, who qualified as competent witness, that reasonable value of services rendered was minimum of 10 per cent, on gross sales, was admissible.</p> <p>7. Principal and Agent '¡&wkey;89(7) — Action for Commissions — Evidence.</p> <p>In action for commissions earned in procuring right to manufacture patented lathes, and in securing orders, proof as to usual commissions in machine tool business for making sales was admissible.</p> <p>Anderson, C. J., and McClellan and Sayre, JJ., dissenting in part.</p>

<p>1. Attorney and Client <&wkey;101(l) — Agreement to Release from Levy.</p> <p>Agreement, made with defendant in execution by attorney for -plaintiff in execution, to have sheriff release defendant’s property from levy, was not binding on plaintiff in execution.</p> <p>2. Judgment <&wkey;342(l) — Power oe Court-Termination — Statute.</p> <p>Where judgment was rendered March 13th, and execution issued April 1st, though term of court was open until last of June, so far as finality of particular judgment was concerned, term ended, under Acts 1915, p. 7Ó8, so as to terminate court’s power over judgment, on lapse of 30 days after its rendition.</p> <p>3. Judgment <&wkey;4-07(2) — Motion to Vacate— Failure in Diligence.</p> <p>If judgment debtor received notice of judgment in sufficient time before expiration of 30 days from its rendition to move in court which rendered judgment to have it set aside, it was judgment debtor’s duty to act upon his reasonable opportunity to have judgment vacated for lack of notice of suit to him, and, having failed to do so, he is without-remedy in chancery.</p> <p>4. Judgment <&wkey;407(6) — Redress —Failure to Apply — Excuse.</p> <p>Judgment debtor’s failure to apply to trial court for redress against judgment must show that no reasonable opportunity so to apply came to the judgment debtor, or that he was prevented by fraud.</p> <p>5. Execution <&wkey;172(4) — Suit to Restrain— Notice oe Judgment — Sufficiency of Evidence.</p> <p>In suit to enjoin execution of judgment, averment of amended bill, as to date of first notice to complainant of judgment against him, held not sustained by evidence.</p> <p>6. Execution <&wkey; 172(4) — Injunction—Lack of Notice of Judgment — Burden of Proof.</p> <p>In suit to enjoin execution of judgment, burden of proof was upon complainant to establish his lack of notice of existence of judgment in time to apply to court of its rendition to have it set aside, because he had no knowledge of suit until after rendition.</p> <p>7. Process <&wkey;78 — Execution — Leaving Copy.</p> <p>Although it was competent for sheriff or deputy to execute process by leaving copy with defendant, under Code 1907, § 5301, leaving a copy at home of party to be served is not sufficient compliance with the statute.</p>

Pugh, Judge. Action by Thomas B. Donaldson, receiver, etc., against the Illinois Surety Company and others. From judgment for plaintiff, defendant Surety Company appeals. This action is for the breach óf a surety company’s bond, given by appellant to the Employers’ Indemnity Company.

Rufus Jerome Barnett was convicted of an assault with intent to ravish a woman. On appeal to Court of Appeals, judgment, was reversed and cause remanded (16 Ala. App. 539, 79 South. 675), and the State petitions for certiorari.

Sims, Judge. Bill by W. A. Hughston and others against Garfield and George Prater and others. Decree for complainants, and defendants named appeal. One Exalicia Caruthers executed a will on April 11, 1916, died on April 15, 1916, and the will was admitted to probate June 25, 1916. The original bill was filed by a number of heirs in September following, asking for a removal of the administration and for a construction of the will.

<p>1. Mortgages &wkey;314 — Cancellation — Rights oe Parties.</p> <p>Where a wife as grantee of a life estate subject to support of a child with remainder to the child, conveyed to mortgagee, she could nevertheless cancel and satisfy the mortgage of reeord if the debt secured thereby had in fact been paid.</p> <p>2. Mortgages <&wkey;137 — Character of Title.</p> <p>While a valid and properly executed mortgage passes legal title to the lands, the title is not absolute, but is subject to be defeated by the performance of the conditions stated.</p> <p>3. Life Estates &wkey;>23 — Conveyance—Character of Title Conveyed.</p> <p>Where the wife, as grantee of a life estate subject to support of a child, with remainder to child, conveyed to a third person by warranty deed purporting to convey the fee simple, her deed conveyed only her life estate, and not the fee simple.</p> <p>4. Quieting Title <&wkey;7(2) — Who hay Maintain Suit.</p> <p>Where a wife, as grantee of a trust deed for support of, child, conveyed to a third person, by deed purporting to convey the fee simple, having held a life estate, a bill to quiet title against claimants under the third person was proper.</p> <p>5. Quieting Title <&wkey;44(2) — Evidence—Admissibility — Reported Cases.</p> <p>In suit to quiet title the report of a prior case, shown to be relevant, as disclosing that part at least of the consideration of the same mortgage involved in the instant suit was paid or had failed, was admissible in evidence.</p>

Smith, Judge. Suit by Delena L. L. Chapman against the City of Mobile and others. From decree for' complainant, defendants appeal. The maps and plans, directed to be reported, follow: EXHIBIT No I Chancery Court Records Book R* Pase 8*0

<p>Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.</p> <p>Bill by the City of Birmingham against Mrs. Ella M. Graham to abate a nuisance. From a decree dismissing the bill, the municipality appeals.</p>

Action by George S. Lazenby against the Travelers’ Insurance Company. A judgment for plaintiff was affirmed by the Court of Appeals (16 Ala. App. 549, SO South. 25), and defendant brings certiorari.

Circuit Court, Covington County; A. B. Foster, Judge. Bill by Mary Barron against H. A. Hughes. Plaintiff dying during pendency of suit, cause was revived in the name of Mary Barron, her mother, as sole surviving heir. From a decree dismissing the-bill complainant appeals. Bill filed by Mary Barron against H. A. Hughes to have three lots in the town of Florala, Ala., sold for division, and the proceeds divided between the complainant and respondent as joint owners thereof.

Bill by I. O. Anderson and others against Algernon Blair for a receiver, and to enforce the performance of a contract, and an accounting. From a judgment sustaining demurrers to the bill, complainants appeal.

S. Williams, Judge. Bill by Lovick Rutledge and others against Annie Jones and others for partition of land. Decree for plaintiffs, and defendants appeal.

<p>Appeal and Error <&wkey;1012(l) — Decision oe Trial Court — Review.</p> <p>The only question raised in ease tried by court without a jury being one of fact, judgment will be affirmed, where court on appeal is unable to say that it is contrary to weight of evidence.</p>

<p>1. Appeal and Error i&wkey;1005(l) — Review-Denial op New Trial — Statute.</p> <p>The rule that appellate court will not disturb denial of new trial by judge, who had the witnesses before him and could note their demeanor, still prevails, in spite of recent legislative enactment.</p> <p>2. Evidence <&wkey;213(2) — Admissibility— Offer oe Compromise — Extension oe Payment.</p> <p>Testimony relating to a statement or suggestion for extension of time of payment of debt was not inadmissible, as being an offer of compromise.</p>

<p>Appeal from Circuit Court, Hale County; B. M. Miller, Judge.</p> <p>Action by Perry Daniel against Thomas A. Walthall, Jr. Judgment for defendant, and plaintiff appealed. Transferred from Court of Appeals under section 6, Act of April 18, 1911, p. 449.</p>

B. Foster, Judge. Suit by E. P. Rodwell and others against the Lake Jackson Hotel Company, wherein deficiency money decree was rendered against defendant, execution thereon was returned no property found, and writs of garnishment issued against G. F. Petery and others as subscribers to defendant company’s stock. From judgment for complainants against the garnishees, the latter appeal.

J. Mcbolson, Judge. John R. EUlgbam petitioned for administration of tbe estate of Marion Bell, deceased, Ms half-brother, and qualified and made bond on May 4, 1918, when letters were issued. May 15, 1918, J. M. Bell petitioned as the father of deceased for letters of administration on the estate, qualified, and later asked for the recall of the letters issued to J. R. Eulgham, and to have himself appointed instead. Erom denial of his petition, ha appeals.

L. Brewer, Judge. Action by Will Heard against the Burton-Boyd Mercantile Company in assumpsit on the common count, and on special contract. Judgment for defendant, and plaintiff appeals. The evidence for plaintiff tended to show that in the fall of 1914 he loaned defendant 29 bales of cotton, and that defendant sold the cotton, and had never settled with him for it.

M. Miller, Judge. ■ On motion for rehearing. The facts made by the bill are that H. C. Ogletree is the father of AYilliam T. Ogle-tree, who is over the age of 14 years and under the age of 21 years, Catherine Ogletree, Lillian Ogletree, and Carrie Ogletree, who áre under the age of 14 years; that complainants and Pat Shannon are the owners jointly, or tenants in common, of certain lots or parts of lots located in Bibb county, Ala., on which are several houses so built and…

<p>Appeal from Oircuit Court, Franklin County; J. J. Curtis, Judge.</p> <p>Suit by Willie Bearden, by next friend, against the Sloss-Sheffield Steel & Iron Company. From judgment for plaintiff, defendant appeals.</p>

Action by D. W. Jones against the Atlantic Coast Line Railroad Company. There was a judgment for plaintiff which was affirmed by the Court of Appeals (16 Ala. App. 447, 78 South. 645), and the defendant petitions for certiorari.

Foster, Judge. Suit by Walter O. Chiles, revived in name of Anna D. Chiles, executrix, against Mary Elizabeth H. May and others. From an adverse decree, defendant named appeals. Original bill filed by Walter C. Chiles (who during the pendency of this suit died, and the cause was revived in the name of his executrix) against the respondents, M. H. May, Mary E. May, Merchants’ & Farmers’ Bank of Greene County, Mrs. F. J. Dimiek, and Steele’s. Bluff Mercantile Company.

<p>Appeal from Circuit Court, Etowah County; J. E. Blackwood, Judge.</p> <p>Suit by Thomas W. Atkinson against the Travelers’ Insurance Company of Hartford. From a judgment of nonsuit, plaintiff appeals.</p>

<p>1. Appeal and Eeeoe i&wkey;1052(5) — Harmless Ebeok — Admission oe Evidence.</p> <p>In an action against partners, individually and as a firm, where the defense was that a refrigerator was not ordered, and, if ordered, was not to be used by firm, but by partner alleged to have ordered it and a third person, admission of incompetent testimony as to whether or not defendant witness knew that the business of the third person and one partner was advertised under the name of the firm was harmless, where there was a general verdict for defendants.</p> <p>2. Trial <&wkey;83(2) — Reception oe Evidence-Specific Objection.</p> <p>In an action against a partnership for the purchase price of a refrigerator, which plaintiff claimed one member of the partnership had ordered, it was not error to permit another partner to testify whether he received or accepted the same, or whether any one received or accepted it for him, over an objection that the evidence was “immaterial, irrelevant, and incompetent.”</p>

<p>1. Appeal and Error &wkey;>877(4) — Who May Allege'Error — Cross-Complainant.</p> <p>Where an injunction was ordered issued, and was invited by the averments of the bill, and not by or through the averments of a cross-bill by a defendant, the cross-complainant cannot complain of an order granting the motion of another defendant to dissolve the injunction.</p> <p>2. Injunction <&wkey;118(4) — Bill — Sufficiency.</p> <p>A bill without equity will not support an injunction or justify its issuance.</p> <p>3. Mortgages <&wkey;616 — Redemption — Equity.</p> <p>A bill by a junior mortgagee against the holder of a senior mortgage is without equity, if it does not bear an offer to do equity by paying all that may be found due under the senior mortgage.</p> <p>4. Mortgages <&wkey;413 — Redemption — Equity.</p> <p>A bill by a junior mortgagee to enjoin a senior mortgagee from foreclosing held to carry a sufficient offer under the alternative prayer of redemption to do equity by paying all that may be due on the senior mortgage:</p> <p>5. Specific Performance i&wkey;49(l) — Agreement — Consideration.</p> <p>An agreement by a senior mortgagee to accept a certain amount .from a second mortgagee for Ms interest cannot be specifically enforced, where there was no consideration for the agreement.</p> <p>6. Mortgages &wkey;>29 — Assignment of Contract-Equitable Mortgage.</p> <p>An agreement, in consideration for the indorsement of a note, that the indorser should hold as security a mortgage executed by the promisor to indorser and a third person, was assignable, under Code 1907, § 5158, and constituted the assignee an equitable mortgagee.</p> <p>7. Mortgages <&wkey;413 — Enjoining Fore-’ closure.</p> <p>Where the real amount due on a senior mortgage and the property covered were uncertain, a second mortgagee was entitled to injunction to restrain senior mortgagee from foreclosing until the relative rights of the parties were determined.</p> <p>McClellan and Mayfield, JJ., dissenting in part.</p>

<p>Appeal from Circuit Court, Franklin County ; J. J. Curtis, Judge.</p> <p>Suit by Joe Tbomas a minor, by next friend against tbe Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals.</p> <p>Suit by Joe Thomas, a minor, by bis next friend, against defendant (appellant) to recover damages for injuries sustained while he was employed by defendant in its , ore mines in Franklin county. The cause was tried on count 5 of the complaint and defendant’s plea of general issue and contributory negligence, resulting in a verdict and judgment for plaintiff in the sum of $2,500; from which the defendant prosecutes this appeal.</p> <p>Count 5 relied for the recovery upon the negligent conduct of one Will Irvin, who was bank boss and had superintendence intrusted to him, and to whose orders the plaintiff was subject. Said count alleges in substance that on tbe day of the injury the plaintiff, with others, was engaged .in boring a hole into a bank of earth and ore; that the bank might be shot with dynamite so as to loosen the ore therein. Just prior to this time, a quantity of powder had been poured into the-hole so that the hole became choked; and while plaintiff was engaged in unchoking the hole, under the direction of Will Irvin, the powder exploded; and in trying to get away from the place of said explosion, and being unable to see on account of the smoke caused by the explosion, the plaintiff ran off a high bank, and by reason of said fall his legs were broken, his jaw bone broken, and he was otherwise bruised and injured, suffered physical and mental pain, and was permanently injured. Plaintiff alleges that the explosion of said powder, which caused said injuries, was caused by reason of, and as a proximate result of, the negligence of Will Irvin. There was no claim in said count for any damages for decreased earning capacity.</p> <p>The evidence for the plaintiff tended to show that the hole which had been bored in the bank had become choked with the powder, and he (plaintiff), with others, was ordered by Irvin to unchoke the same, and for this purpose at first used a stick; that the powder had been put in the hole by the order of Will Irvin; that, after failing to unchoke it with a stick or x>ole, they undertook to Unchoke the hole with a drill, which worked up and down, requiring two men to pull the handle, and two to drill. The drill used was 15 or 20 feet long, and about as large around as a chair post, and “had a bit like a diamond,” and “they would lift it up and then drop it back.” The hole was about S feet deep. The drill had a steel point, and while engaged in drilling the powder in this manner the explosion occurred, throwing up dense smoke as well as earth. The plaintiff was blinded thereby, ánd running away from the place of explosion he ran down the embankment and sustained the injuries set out in the complaint.</p> <p>One or two witnesses for the plaintiff, after having sufficiently qualified as to their experience with powder and drilling holes through earth and rock and the use of powder therewith, were permitted to testify, over the objection of the defendant, that the danger in using a steel drill would be the steel might hit a rock or other hard substance and cause an explosion.</p> <p>One Creighton, witness for the defendant, testified that he was superintendent of Rock-wood Quarry, and had had many years of experience in handling powder, boring holes with steel drills, etc.; and that in his plant holes are bored with steel drills, and -are unchoked -as was done in the instant case, and that one had never, in his experience, exploded; that such was the custom of his plant, which was operated in the ordinary method of mining companies. Thereupon the witness was asked the following question: “In your judgment is it safe or unsafe?” The court sustained the plaintiff’s objection thereto.</p> <p>There was evidence tending to show that plaintiff had a cigarette in his mouth at the time, which- was on rebuttal denied by the plaintiff.</p> <p>The testimony for the defendant further tended to show that, in unchoking holes with steel drills, the drill usually knocks down dirt on the powder; but there was no recollection by any witness of the powder catching fire and blazing out before this one.</p> <p>The court refused to give the following charges:</p> <p>(32) “If you believe the evidence, you cannot award the plaintiff more than nominal damages for decreased earning capacity.”</p> <p>(80) “I charge you, gentlemen, that you should not find a verdict against the defendant in this case unless you would be willing to render a verdict against Will Irvin on the same evidence.”</p> <p>(19) “If you believe from the evidence that the accident complained of was of an unusual character and one that could not be reasonably anticipated by the use of ordinary care, then the plaintiff cannot recover in this case, and your verdict must be in favor of the defendant.”</p>

A. Pearce, Judge. Trover and conversion by O. C. Hughes, as trustee in bankruptcy of the estate of the Shop .of Quality, bankrupt, against H. P. Nichols for the conversion of a lot of goods. Judgment for defendant, and plaintiff appeals. Pending said appeal, plaintiff died, and the cause was revived in the name of E. O. Jones as the successor as trustee in bankruptcy.

<p>1. War <&wkey;ll — Alien Enemies.</p> <p>As affecting civil rights and liabilities, it is not nationality, but the carrying on of business or residence in an enemy country, that constitutes one an alien enemy, and an alien, subject of Germany, residing in the United States, becomes an alien enemy on internment, under U. S. Comp. St. 1918, § 7615.</p> <p>2. Appeal and Error <S=»9(M> — Presumption —Alien Enemy.</p> <p>The court on appeal cannot presume that the court or any of its agencies in the administration of justice would have discriminated against a plaintiff on account of his being an alien enemy.</p> <p>3. Appeal and Error <&wkey;966(l) — Scope of Review — Denial of Continuance.</p> <p>The denial of a continuance will be reversed only where thez-e is an obvious abuse of the discretion of the trial court.</p> <p>4. War &wkey;»10(2) — Effect on Action — Denial op Continuance — Alien Enemies.</p> <p>Denial of stay of proceedings, in effect an application-for a continuance on account of the war between the United States and Germany, to an alien enemy plaintiff who has been interned, held not an abuse of discretion, especially where it did not appear that plaintiff was a necessary witness in his own behalf.</p>

<p>Appeal from Circuit Court, Dale County; J. S. Williams, Judge.</p> <p>Bill by Lonnie Crawford against Jesse B. Walter and others. From decree of dismissal, complainant appeals.</p>

<p>1. Appeal and Ebboe &wkey;>655(2) — Bill oe Exceptions — Time oe Filing — Corrections.</p> <p>Whore judgment was rendered October 4, 1917, a bill of exceptions presented on December 17, 1917, but not signed until February 9, 1918, where, on later date, some corrections were made, but no new ground of alleged error, or no new exception was incorporated, will not be stricken.</p> <p>2. Appeal and Error <&wkey;713(3) — Bill oe Exceptions — Affirmative Charge.</p> <p>An affirmative charge will be considered on appeal, though it appears in the bill of exceptions only.</p> <p>3. Insurance <&wkey;349(3) — Construction oe Contract — Deeault in Payment oe Note.</p> <p>Whore premium on policy providing for one month’s grace was not paid when due, but shortly thereafter insured gave insurer note for amount thereof, payable about two months thereafter, and was given receipt stating that, upon default in payment of note when due, the receipt should -become void and the 'insurance immediately terminate, insured was not entitled to grace upon failure to pay note at maturity.</p> <p>4. Insurance <&wkey;349(3) — Payment oe Premium by Note — Validity oe Oontbact.</p> <p>Agreement by insured, on policy providing for grace upon failure to pay premium when due, that a receipt given him 'by insurer upon payment of premium by note should become void and the insurance terminate upon failure to pay note at maturity, was valid.</p>

J. Curtis, Judge. Suit by T. L. Long against A.-L. Myers. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

Turner, Judge. Bill by Z. T. Cobb against S. C. Garrett for an injunction restraining Garrett from interfering with complainant in the use and enjoyment of certain land, and to cancel a deed executed by Ladd and others to Garrett as a cloud upon complainant’s title. Decree for complainant, and respondent appeals.

<p>1. Homicide &wkey;171(2) — Evidence.</p> <p>In a homicide case it was proper to allow a witness to describe the scene of the, killing together with the blood stains and other evidences of the mode of homicide.</p> <p>2. Homicide @=>173 — Evidence.</p> <p>In a homicide case it was proper to allow a witness to testify that, to his best judgment, a certain knife found near place of killing, or shown to have been present at the killing, belonged to defendant, where witness was shown to have knowledge of same and to have seen defendant with the particular knife.</p> <p>3. Homicide @=>170 — Evidence.</p> <p>In homicide case it was proper to allow a witness to testify that at about the time of the killing and at or near the place in question he heard defendant’s voice, witness being shown to be acquainted with voice of defendant, and that he was making threats, although witness was not sure that it was deceased whom defendant was threatening.</p> <p>4. Criminal Law @=>627(7), 631(11) — Serving Copt of Indictment and Venire — Objection.</p> <p>Objection made for the first time after verdict that no copy of the indictment or the venire was served on defendant was too late, in a prosecution for a capital offense.</p> <p>5. Criminal Law @=>1086(1, 10) — Capital Offense — Record.</p> <p>The setting of day for trial and ordering of special venire were judicial acts which court must perform, and must appear of record proper, or a waiver thereof in the manner described by statute, to support a conviction for a capital offense.</p>

<p>1. Mortgages <&wkey;425 — Trust Deeds — Foreclosure — Laches.</p> <p>Foreclosure of mortgage after 31 years, during which the mortgagors and the trustee had died, held properly denied on the ground of stalenoss of demand, laches, and the statute of limitations.</p> <p>2. Equity <&wkey;87(l) — Prescription—Presumptions.</p> <p>There is a rule of prescription or a presumption raised from the statute of limitations that any and all claims or rights of property which have been permitted to slumber without assertion or recognition for 20 years have no legal existence, or that they have been adjusted.</p> <p>3. Equity <&wkey;87(l) — Laches.</p> <p>As a matter of public policy, antiquated demands will not be considered by the courts, and, without regard to any statute of limitations, there must be a time beyond which human transactions will not be inquired into.</p> <p>4. Pleading <&wkey;34(3) — Construction—Presumptions.</p> <p>Courts will not presume that parties have a better case or a better defense than that which they state in their pleadings.</p>

Miller, Judge. Action by L. Jaffe against the Koplin Iron Company and another. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 499, § 6. Suit fp-r the alleged breach of a garnishment dissolution bond executed by Koplin Iron Company, as principal, and Fidelity & Deposit Company of Maryland, as surety.

<p>Appeal from Circuit Court, Jefferson County; Charles W. Ferguson, Judge.</p> <p>Suit by John C. Gustin, as administrator of the estate of Christopher Gustin, deceased, against the Supreme Lodge of the World, Loyal Order of Moose, and others. From a judgment for plaintiff against the Supreme Lodge it appeals.</p>

County; O. A. Steele, Judge. Action by Henry E. Stowers against the Dwight Manufacturing Company for damages for injury while engaged in its employment. Judgment for defendant, and plaintiff appeals. Before introducing evidence, by agreement of the parties, the court, the jury, the attorneys, and the sheriff went to where the plant was located, and there viewed the machinery upon which plaintiff was working when he was injured.

<p>1. Damages <&wkey;33 — Aggravation of Previous Incurable Disease.</p> <p>A railroad may be liable, under Federal Employers’ Liability Act (U. S. Oomp. St. 1916, §§ 8657-8665), for death of an employé from injuries caused by sudden stop of train, although employé was suffering from a slow, but incurable and fatal, disease, and although the shock received would have been of no serious consequence to a man in sound health.</p> <p>2. Master and Servant @=217(1) — Assumption of Risk.</p> <p>A servant assumes all the risks which he is capable of appreciating, remaining after master has exercised reasonable care for Ms safety.</p> <p>3. Master and Servant @=217(1) — Assumption of Risk — “Ordinary Risk.”</p> <p>An ordinary risk assumed by an employs who appreciates its hazard is one which remains after the employer has exercised reasonable care for the safety of his employes.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Ordinary Risk.]</p> <p>4. Master and Servant @=288(1) — Assumption of Risk — Jury Question.</p> <p>Whether a risk is one which remains after the master has exercised reasonable care for the safety of his employés is a question of fact, and is generally for the jury; but, where there is no sufficient evidence to warrant the opposite conclusion, the court will declare the risk to be of such a character.</p> <p>5. Master and Servant @=262(4) — Contributory Negligence — Necessity of Pleading.</p> <p>Under Federal Employers’ Liability Act (U. S. Comp. St. 1916, §§ 8657, 8659), a railroad being sued for death of employé, need not specially plead contributory negligence.</p> <p>6. Appeal and Error @=1066 — Review — Harmless Error.</p> <p>In action against railroad for death of employé, under Federal Employers’ Liability Act (U. S. Comp. St. 1916, §§ 8657-8665), an instruction defining law of contributory negligence was a mere abstraction, where there was no evidence of such negligence, aid was not prejudicial to defendant railroad.</p> <p>7. Appeal and Error @=1033(5) — Review-Harmless Error.</p> <p>In action against railroad for death of employé, under Federal Employers’ Liability Act (U. S. Comp. St. 1916, §§ 8657-8665), court’s statement ■ that railroad insisted upon plea of contributory negligence, where in fact no such plea had been interposed, was not prejudicial to railroad.</p> <p>8. Appeal and Error @=763 — Assignments of Error — Waiver—Supplemental Brief.</p> <p>Assignments of error argued for first time in appellant’s supplemental brief, filed after the cause had been submitted, cannot be considered, although in original brief appellant stated that it insisted on all assignments of error, and would later file a supplemental brief.</p>

Action by V. B. McAleer, as trustee in bankruptcy of Henry C. Meyer, against the People’s Bank. Prom judgment of nonsuit, plaintiff appeals.

<p>Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.</p> <p>Bill by the Prudential Casualty Company against J. W. Kerr. Judgment for defendant, and plaintiff ..appeals.</p>

<p>Appeal from Circuit Court, Morgan County; R. C. Brickell, Judge.</p> <p>Action by R. N. Harris, Jr., and others, against the Southern Railway Company. From judgment for plaintiffs, defendant appeals.</p>

Suit by the Marbury Lumber Company against J. B. Wainwright and others. Prom judgment for plaintiff as against the named defendant, plaintiff appeals.

B. Foster, Judge. Bill by the Benson Hardware Company and others against D. R. Roberts and others. From the decree which denied part of the relief sought, complainants appeal.

<p>Appeal from Circuit Court, Mobile County; Saffold Bernéy, Judge.</p> <p>Statutory ejectment by Hunter Rutland and others against Mamie R. Emanuel</p>

<p>1. Appeal and Error <&wkey;866(l) — Matters Reviewable — Ruling on Demurrer.</p> <p>Under Code 1907, § 3017, where plaintiff was required to take a nonsuit because defendant’s demurrer to his complaint was sustained, plaintiff on appeal could assign court’s ruling on the demurrer as error.</p> <p>2. Statutes <&wkey;124(l) — Title — Ex Oeeicio Clerks oe Inferior Court.</p> <p>Title of act reading “to establish an inferior civil court in lieu of justices of the peace for all precincts lying within, or partly within, the city of Mobile” (Loc. Acts 1911, p. 274), held to comprehend and provide for the discharge of the duties of the clerk of the inferior civil court, created by such act, by the clerk of the inferior criminal court, and to provide for his compensation as ex officio clerk of such inferior civil court.</p> <p>3. Officers <&wkey;94 — Compensation—Fees.</p> <p>An officer demanding fees for services rendered must point to some clear and definite provision of the statute which authorizes the demand.</p> <p>4. Clerks of Courts <&wkey;37 — Action for Fees —Complaint.</p> <p>In action against county by ex officio clerk of inferior civil court for one-half of costs and fees allowed judge and clerk of certain court, in, proceedings to condemn prohibited liquor under Gon. Acts 1915, p. 22, § 22, to which such clerk was entitled under Loc. Acts 1911, pp. 275, 276, §§ 9 and 10, complaint held to bring costs and fees sued for within former statute.</p> <p>5. Clerks of Courts <&wkey;31 — Compensation— Ex Officio Clerk of Inferior Couri>— Fees.</p> <p>Loc. Acts 1911, p. 275, § 9, giving ex officio clerk -of inferior civil court the unconditional right to one-half of the costs and fees when collected, necessarily gave him the right to collect such costs and fees by appropriate proceedings out of the consolidated fund of the county, where the fine and forfeiture fund of the county, out of which costs are payable where state fails under Code 1907, § 6889, was consolidated by local act with the general fund.</p>

B. Foster, Judge. Suit by J. E1. Henderson and others against the City of Enterprise and others. From, the decree dissolving a temporary injunction, complainants appeal.

Original petition in the Supreme Court by J. A. Walter and others for writ of mandamus directing the Judge of the Circuit Court of Montgomery County to vacate an order. This is a petition for a writ of mandamus be directed to the judge of the circuit court of Montgomery, instructing him to vacate an order directing the register to strike from the hill of complaint — mentioned in the petition and record — certain portions thereof.

Henry Kreutner was convicted of crime, and, the conviction being affirmed by the Court of Appeals, defendant brings certiorari.

<p>Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.</p> <p>Action by D. M. Murchison against the Red Feather Coal Company, for damages for the death of plaintiff’s minor son, caused by a car or tram of defendant’s being run over him while engaged in labor as a convict in defendant’s mine. Judgment for plaintiff, and defendant appeals.</p> <p>The complaint alleged, in effect, in count 1, that plaintiff’s son, a minor, was being forced to work in the mine of defendant by the defendant, or agents of the defendant acting within the line and scope of their employment, and that while so \Vorking there defendant negligently allowed or caused a tram or car to run over plaintiff’s minor son, thereby proximately causing his death. In count 2 the allegation is made that plaintiff’s minor son was being worked in said mine as a convict, under some kind of arrangement with the state of Alabama, and that the injury occurred as set out in count 1, causing his death. Count 3 was the same as 2, except it charged wantonness.</p> <p>The following pleas are referred to: Pleas 2, 3, 4, 5, 6, were pleas of contributory negligence, and each contained this allegation:</p> <p>That if there was a manway prepared by the defendant for the use of its employés in going to and from their work in said mine, and the deceased negligently used the slope of said mine as a passageway to and from said work, which said slope was parallel to said manway and about 10-feet distant therefrom, and on said slope was a track on which empty cars were let down into said mine and loaded cars of coal were brought up from said mine over said track, and. said cars were rapidly operated over said track so that it was obviously dangerous for persons to walk up and down said slope, the defendant avers that the deceased voluntarily used said slope as a passageway from his work out of said mine.</p> <p>Plea 2 was that he knew or was informed of a safe way, and used a dangerous way.</p> <p>(3) He was warned of the danger of using the slope to travel upon.</p> <p>(4) He was notified of the danger of traveling upon the slope.</p> <p>(5) Defendant had provided a safe way, and plaintiff’s son negligently failed to use the safe way.</p> <p>(6) It was obviously dangerous to use said slope, but, notwithstanding this, the plaintiff’s son voluntarily used said slope.</p> <p>Plea 7 is as follows:</p> <p>(7) At the time of the alleged injuries for which this suit was brought there was a rule in force in said mine forbidding employés from using tbe slope as a passageway to and from the work in said mine, which rule was known to the deceased, and defendant avers that the deceased disobeyed said rule and voluntarily attempted to go on said slope, where he knew trips of cars were constantly passing rapidly, and know that it was dangerous to so use said slope, and as a proximate consequence of such negligent conduct on the part of the deceased he received his alleged injuries.</p> <p>The following assignments of error are referred to in the opinion:</p> <p>(13) Overruling the defendant’s objection to the following question propounded by plaintiff to his witness Dartey: “Did he see these people using that slope going in and out of there?”</p> <p>(14) Overruling the defendant’s motion to exclude the answer of said witness.</p> <p>(15) In overruling the defendant’s objection to the following question propounded by plaintiff to the same witness: “Which way did Murray Lane go in and out while he was there?”</p> <p>(16) Overruling defendant’s motion to exclude the answer of said witness.</p>

Jones, Judge. Suit by O. C. Thomas against Charles For-man and another. From a decree overruling demurrers to the bill, respondent Forman appeals. The bill of complaint in this cause was filed by appellee (C. C. Thomas) against Charles Forman and Gertrude Taylor for the purpose of removing a cloud from the title to certain lands, therein described, situated in Marengo county.

<p>Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.</p> <p>Bill by J. M. Simpson against the Grand Bay Land Company. Erom an order overruling a demurrer to a cross-bill, the complainant appeals.</p>

<p>1. Master and Servant <&wkey;264(10) — Injuries to Servant — Respondeat Superior-Issues and Proof.</p> <p>Where injured servant sought recovery only on the theory of negligence of fellow servant under the doctrine respondeat superior, there could be no recovery in the absence of positive evidence of negligence of some servant.</p> <p>2. Master and Servant <&wkey;278(17)— Injuries to Servant — Evidence—Sufficiency.</p> <p>In servant’s action for injury, evidence held insufficient to show negligence of mine switch-man, resulting in ear running upon and over plaintiff.</p> <p>3. Master and Servant <&wkey;180(5) — Injuries to Servant — Persons in Charge of Railway Apparatus.</p> <p>Mine servant engaged in hauling tramears in and out of mine was the one in charge of the cars and switches within Code 1907, § 3910, subd. 5, and so could not recover under such statute for alleged negligence of switch tender for failure to send a car down the proper track, with the result that plaintiff, on the wrong track, was injured.</p> <p>4. Master and Servant <&wkey;246(l) — Injuries to Servant — Sudden Peril.</p> <p>Where mining car operator upon derailment of cars refused to assist in placing them on the track, and went to a point between the ears and went to sleep, and a wild ca-r coming down the tracks placed him in a position of sudden peril, he could not recover on the theory of sudden peril, having placed himself voluntarily in such position.</p> <p>5. Master and Servant <@=»289(38) — Injuries to Servant — Sudden Peril Rule.</p> <p>As a rule, one who suddenly acts wildly and madly when unwarned peril surrounds him is not as a matter of law chargeable with contributory negligence for failing to exercise the care and prudence of a prudent man under normal and ordinary conditions, as instinct would prompt him to use diligence to save Ms life or insure his safety.</p> <p>6. Master and Servant <&wkey;289(38) — Injuries to Servant — Sudden Peril — Questions for Jury.</p> <p>Ordinarily it is for the jury whether an injured servant suddenly placed in a position of peril has acted negligently.</p>

<p>Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.</p> <p>Action by Gertrude B. England against Thomas F. Stein and others. Judgment for plaintiff, and defendants appeal.</p> <p>Appellants (defendants) seek by this appeal to reverse the judgment of the lower court, whereby appellee is entitled to lands in the vicinity of Mobile through inheritance from her ancestor, Anthony Espejo, to whom a “permit to settle” the lands was issued March 21, 1803, by the Spanish commandant at Mobile, while it constituted a part of the Spanish possession called “West Florida.” Espejo inhabited and cultivated the lands from 1806 to 1813 and after his death it was possessed and claimed by his heirs, up to and at the occupation of Mobile by the United States troops April 15, 1813. Espejo’s heirs presented. their claim to this land to the United States commissioners appointed to receive such claims, who reported the facts to Congress, which on March 22, 1819, confirmed the same to the extent of 640 acres, which were duly surveyed and noted as belonging to the heirs of said Espejo on the maps of the United States land office filed in Mobile county as early as 1831. The cultivation and use of the lands were abandoned by the Espejo heirs, and in 1870 the lands were regularly assessed for state and county taxes to “unknown owners,” and were sold for taxes. This tax title, accompanied by actual, continuous, open, notorious, and exclusive possession of the land, under claim of ownership, adversely and hostilely to the world, passed by conveyances and inheritance to the appellants in 1912. Since 1870 the lands have been assessed for taxes and the taxes paid by the appellants and their predecessors in interest.</p> <p>In January, 1913, some of the heirs of Espejo procured from the register and receiver of the United States land office at Montgomery a “private land claim certificate,” reciting that the Espejo’s claim to this land was confirmed by the act of Congress of March 3, 1819, was surveyed as shown by the township plat approved in 1845, and that, upon presentation of the certificate to the Commissioner of the General Land Office at Washington, the heirs shall be entitled to receive a patent. They then procured the issue of the United States patent dated April 30, 1913, reciting the certificate, that the claim was confirmed by Congress in 1819, and regularly surveyed as shown on the plats approved in 1845, and that in consideration of the premises the United States patented the land to Espejo’s heirs.</p> <p>This suit was brought on May 2, 1917, resulting in a judgment for the plaintiff, from which defendants prosecute this appeal.</p>

E. Gamble, Judge. Action by Sidney Bedgood, by his next friend, R. L. Bedgood, against the T. R. Miller Mill Company, for damages for personal injury while in the service of the defendant. Judgment for the defendant, and plaintiff appealed. ■The plaintiff, while in the service of the defendant as off-bearer for a ripper saw, was injured in attempting to replace a belt on a pulley from which it had slipped while the driVing shaft was revolving.

<p>Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.</p> <p>Suit to quiet title by Z. A. Laney and others against the Pell City Realty Company. Prom decree for .complainants, respondent appeals.</p> <p>Bill filed under section 5443 of the Code of 1907 to quiet the title to lots 1 and 2, in block 4 of the town of Pell City, Ala., according to the S. H. Lee map. Decree was rendered in favor of complainants (appellees), and respondent prosecutes this appeal.</p> <p>It was admitted in' the answer that complainants were, at the commencement of this suit, in the peaceful possession of said lots 1 and 2; and that complainants own a part of said lots. It further appears without dispute that at the time of the filing of the bill no suit was pending to enforce or test the validity of such title or claim of complainants.</p> <p>Complainants offered deed from Martha M. Cameron, dated August 12, 1914, purporting to convey lots 1 and 2, in block 4, of the town of Pell City, as described in the bill; also, deed from Theo Zellner to said Martha M. Cameron, dated December 15, 1890, describing the property as follows:</p> <p>“Commencing at the southeast comer of a lot of land, being one and one-half acres, bought by the party of the first part (Theo Zellner), from James M. Brown; running 100 feet west; then running 150 feet north; then running 100 feet east — then 150 feet to the corner stake, the place of beginning.”</p> <p>Also, deed from James M. Brown to said Theo Zellner, purporting to convey:</p> <p>“A lot or parcel of land containing one and one-half acres, being a part of the northeast fourth of the northwest fourth of section one, township seventeen, range three east, and situated in the town of Pell City, St. Clair county, Alabama; commencing 630 feet north of the southwest corner of the above-described forty, and running east 210 feet to a stake, thence south 315 feet to a stake; thence west 210 feet to a stake, thence north along the west boundary line of the above-described forty 315 feet to a stake at starting point.”</p> <p>Complainants offered proof of possession by them of lots 1 and 2, in block 4, in the town of Pell City, as described in the bill; and that said Martha M. Cameron was in possession of the same under claim of ownership at the time she executed the deed to complainants in August, 1914; and that the said Martha M. Cameron had so been in possession under said claim of ownership of said lots 1 and 2 — in the recollection of one of the complainants — for a period of 14 years.</p> <p>The evidence for the complainants of John P. Cameron, a son of said Martha M. Cameron — the latter being deceased — tended to show: That, at the time his mother obtained the deed from Zellner, lots 1 and 2 had been staked off, but the streets had not been opened; and that the property described in the deed to his mother, of date December 15, 1890, embraced lots 1 and 2, in block 4, of the town of Pell City. That immediately upon the purchase of said'property his mother took possession thereof, built a house thereon, and lived there for a number of years, cleared the land upon the lots, and cultivated the same (either herself .or rented the same to other parties who cultivated it) up until the time she sold said lots to complainants, which would cover a period of nearly 24 years. That during such period his mother was in the “open, exclusive, notorious, adverse possession of said lots” under claim of ownership, and that he heard of no one else claiming title to the same during that time; and that his mother paid the taxes thereon during said 'period. That after the property was sold to the complainants they built a house thereon. Complainants also offered the testimony of one Wyatt, who was the county surveyor, and who had made a survey of the property here in controversy. His testimony tended to show that the property embraced in the deed of Martha M. Cameron corresponded substantially to lots 1 and 2, in block 4, as described in the bill — of which the complainants are now in possession.</p> <p>Respondent offered in evidence deed from Robert Garry to Sumpter Cogswell, dated April 18, 1904, purporting to convey a parcel of land containing IY2 acres, being a part of the northeast quarter of the northwest quarter, section 1, township 17, range 3 east, St. Clair county, “beginning at a point 630 feet north of the southwest corner of the above forty-acre tract, running thence east 210 feet to a stake, thence south 315 feet to a stake, thence west 210 feet to a stake, thence north along the west boundary of said forty-acre tract 315 feet to the begining, except that part thereof heretofore sold to Mrs. M. M. Cameron, “and also deed from the said Cogswell to the Pell City Realty Company of date October 4, 1904, with the same description as above, and containing the expression “except that part thereof heretofore sold to Mrs. M. M. Cameron.” The respondent offered proof tending to show that the property conveyed to said Mrs. M. M. Cameron did not embrace all of lots 1 and 2, block 4, but embraced a large portion thereof; and further tended to show that the said Martha M. Cameron had not been in possession of all of said lots 1 and 2; that there was a variation between the land lines of the government survey and of the survey or map of the town of Pell City. The evidence for the respondent further tended to show that respondent took possession of that portion of lots 1 and 2 at the time of the execution of the deed from Cogswell, and that Martha M. Cameron did not have possession of said portion of said lots.</p>

Petition for mandamus by the State, on relation of the City of Mobile, against the Board of Revenue and Road Commissioners. Decree for defendant, and relator appeals.

<p>1. Trial <&wkey;234(3) — Affirmative Charge.</p> <p>The amount recoverable depending on construction of instruments, but a certain amount being conceded due and recoverable, there was no error in an instruction to find for plaintiff if the jury believed the evidence.</p> <p>2. Trial <&wkey;255(14) — Instructions—Necessity of Request.</p> <p>Defendant should have raised the question, of what amount was due, by requesting an instruction limiting recovery to the amount authorized by proper construction of instruments, where, a certain amount being conceded due, the jury were properly instructed to find for plaintiff if they believed the evidence.</p> <p>3. Appeal and Error &wkey;»292 — Review—Necessity of Motion Below.</p> <p>Where defendant, after proper instruction to find for plaintiff if jury believed the evidence was given, failed to request an instruction limiting recovery to amount authorized by proper construction of instruments in suit, the question could thereafter be raised only by motion to set aside the verdict, for the- full amount sued for, as excessive under the law and evidence.</p>

<p>Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.</p> <p>Action by Edward Taylor against P. D. Beville. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450.</p> <p>As amended, count A, which alone was submitted to the jury, charges that defendant negligently permitted an incompetent driver, to wit, Lee or Leo Dahlgreen, to oi)erate the auto of defendant, and during such permissive use of such machine, and while in control thereof, the sai(i driver negligently ran said machine into or upon the horses and wagon of plaintiff, while he was driving the same on a public highway in Mobile county, etc. Demurrers were overruled to the count, and there was judgment for plaintiff, and defendant appeals, assigning as error this action of the trial court and certain other rulings on evidence and instruction.</p>

<p>1. Equity <&wkey;148(l) — Pleadino — Multipariousness.</p> <p>Single bill to remove distinct estates from probate court into equity for administration held multifarious; administration of each affording distinct matter for consideration, though heirs and distributees of one had litigable rights against devisees and legatees of other, or heirs of one were tenants in common with devisees of other.</p> <p>2. Executors and Administrators i&wkey;473, 474(1) — Removal op Estates to Equity.</p> <p>Distinct estates may be removed from probate court into court of equity for administration, by filing appropriate petitions under Gen. Acts 1915, pp. 738, 739.</p>

<p>1. Highways <&wkey;79(2,3) —• Public Highways — Use.</p> <p>A highway may be public, though little traveled, whether established by due proceedings for that purpose or by a dedication on the part of the owners of the soil, or by a general user as a public thoroughfare for 20 years or more.</p> <p>2. Negligence <&wkey;35 — Injuries by Frightened Animals — Objects Near Highway.</p> <p>Where plaintiff was injured by being thrown from a wagon because his mules were frightened by defendant’s hydraulic pump operating close to the highway, there was no liability:, the pump being a standard device, performing a useful domestic function in the ordinary and approved way upon defendant’s lands.</p>

Turner, Judge. Suit by Judge Tucker and others, trustees, etc., against Hillary Denson and others. From order denying temporary injunction, complainants appeal.

<p>Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.</p> <p>Bill by the Dixie Industrial Company against G. A. Threadgill and others to quiet title to land. From the judgment rendered, respondents appeal.</p> <p>The decree appealed from is as follows:</p> <p>It is a bill to quiet peaceable possession, and, while the evidence satisfies the court that complainant is entitled to the land in the peaceable possession of complainant, as the foundation of this suit, the same is not sufficiently made out. The witnesses for the defense are not impeached except by internal evidence of weakness, but the court is unable to say on all the testimony that complainant’s peaceable and quiet possession is clearly made out.</p> <p>The court is of the opinion that respondents have not title to the land, upon the evidence which is before the court. The court feels compelled, therefore, to dismiss complainant’s bill without prejudice.</p> <p>It is ordered that complainant pay the costs incurred by it, and the respondents pay the cost incurred by them, to be taxed by the register, for which execution may issue.</p>

O. Wood, Judge. In the matter of the estate of W. P. Russell, deceased. From a decree on the final settlement of the executors, H. H. McPherson and others, an appeal is prosecuted by W. P. Russell, as administrator de bonis non with the will annexed, and others.

<p>Appeal from Circuit Court, Geneva County, in Equity; H. A. Pearce, Judge.</p> <p>Action between P. E. Greer and M. D. Golden. and others. Judgment for latter, and former appeals.</p>

<p>Appeal from Circuit Court, Mobile County; Norvell R. Leigh, Jr., Judge.</p> <p>(Suit by the Moragues Lumber Company, a corporation, against J. M. Scott, for damages for breach of an agreement of charter party. Judgment for plaintiff, and defendant appeals.</p> <p>Count 2 of the complaint as amended is as follows:</p> <p>The plaintiff claims of the defendant $13,000 as damages from breach of an agreement entered into between the plaintiff and the defendant on the 27th day of June, 1917, consisting of an offer by the defendant that, subject to his buying a certain American vessel, 15 years old, which he was then figuring on and which was of about 1,050 tons and then due in Chile, he would charter said vessel to the plaintiff for the transportation of a cargo of lumber from any port in the Gulf of Mexico to Montevideo or Buenos Aires, for the freight of $65 per thousand feet of lumber, freight to be prepaid, free of discount and of insurance, and the vessel to be furnished to the plaintiff within a reasonable time after its purchase by the defendant, which' said offer was accepted by the plaintiff, and the plaintiff avers that although the defendant purchased said vessel, and although the plaintiff was at all times ready, willing, and able to comply with all tbe provisions of said contract on its part, the defendant without notifying the plaintiff of said purchase, and before said vessel was delivered to him, chartered said vessel to a third person, and thereby rendered himself unable to comply with the said contract.</p> <p>The following are the charges refused to the defendant:</p> <p>(4) If you are reasonably satisfied from the evidence that the plaintiff did not buy or contract for a cargo for the “Amazon,” that plaintiff did not have a cargo for said vessel, and that plaintiff did not sell or offer for sale or receive any offer for the alleged charter of said vessel, then the damages with reference to both the probable use of said vessel and the probable sale of alleged charter would be speculative and could not be recovered in this case.</p> <p>(7) If you are reasonably satisfied from the evidence that the plaintiff had not made any arrangements to supply a cargo for the “Amazon,” that plaintiff had no cargo for said vessel, that plaintiff did not try to sell said alleged charter, and had no offers therefor, then the damages with reference to the probable or possible use of said vessel and the damages with reference to the probable or possible sale of said alleged contract or charter are purely speculative and cannot be recovered in this case.</p> <p>The following are the assignments of error referred to in the> opinion:</p> <p>(7) The court erred in sustaining plaintiff’s objection to the following question propounded by the defendant to the witness Marty: “Suppose that she arrived here on the 26th day of November after the rates had been put down for $51, would you have canceled that charter, or would you have taken the boat?”</p> <p>(8) The court erred in .sustaining objection to the following question to the same witness: “Suppose on the 1st day of November, 1917, the vessel had not yet arrived and the shipping board had put the freight down to $50 or $55 a thousand, would you have exercised your option to cancel that charter, or would you have kept the charter?”</p>

<p>Appeal and Error <&wkey;1151(2) — Correction oe Judgment.</p> <p>Where evidence in action on account did not justify allowance of certain items against defendant, Supreme Court will correct judgment by deducting items, and affirm.</p>

Suit by Yirgil H. Harless against the Connors-Weyman Steel Company. From judgment for plaintiff, defendant appeals. Appellee brought suit against the appellant for the recovery of damages, for personal injuries received while engaged in discharging the duties of his employment in the rolling mill of appellant. There are numerous counts in the complaint; but those relied upon are based upon alleged defects in the rolls, in that the rolls were negligently lined or adjusted.

<p>Fraudulent Conveyances <&wkey;300(3) — Suit Against Husband and Wine — Consideration as Moving from Wife — Evidence.</p> <p>In landlord’s suit against tenant and wife to impose lien for debt for house rent on real estate conveyed to tenant’s wife by third persons, evidence that consideration or money paid for real estate moved from wife, not from tenant, held to sustain decree for her.</p>

W. Haralson, Judge. Suit hy James Peppers against J. L. Dorsey and another, wherein W. W. Curry was garnishee. From judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

<p>Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.</p> <p>Action between W. W. Reed and the J. M. Card Lumber Company. From a judgment in favor of Reed, the Lumber Company appeals. Transferred from Court of Appeals under Acts 1911, § 6, p. 449.</p>

<p>Appeal from Circuit Court, Monroe County; Ben D. Turner, Judge.</p> <p>Suit by Liston McMillan and others against John McMillan and wife and others. From decree rendered, respondents appeal.</p>

Brickell, Judge. Assumpsit by the City National Bank of Decatur against B. P. Wallace. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. The action is on two checks drawn by one Camron on a Moulton bank payable to bearer and presented by the defendant as the holder to the plaintiff bank in Decatur about 10 o’clock on the morning of December 15th.

<p>Appeal from Circuit Court, Clay County; Hugh D. Merrill, Judge.</p> <p>Action by J. W. Morris against J. J. Clark. From judgment for defendant, plaintiff appeals. Transferred from- Court of Appeals under Acts 1911, p. 450, § 6.</p>

<p>Appeal from Circuit Court, Etowah Co'tlnty; O. A. Steele, Judge.</p> <p>Action by T. A. Conwell against Sam Rice. From an adverse judgment, plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.</p>

S. Lewis, Judge. Bill by the Steiner-Lobman Dry Goods Company and others against J. E. Henderson and others. From decree rendered, defendant named appeals and complainants prosecute a cross-appeal.

<p>Appeal from Circuit Court, Cullman County ; O. Kyle, Judge.</p> <p>Bill by Theobald Mauter against the South & North Alabama Railroad Company and others. Decree for complainant, and defendants appeal.</p>

<p>Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.</p> <p>Action by the Union Springs Guano Company against Sallie M. Thompson. Judgment for plaintiff, and defendant appeals.</p>

W. Ferguson, Judge. Suit iu justice court by S. Milazzo against the Commercial Finance Company. On appeal to the circuit court there was judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under Act April 18,1911 (Acts 1911, p. 450), § 6.

<p>1. Evidence i&wkey;355(5) — Memoranda—Admissibility in Connection with Other Evidence.</p> <p>In an action on account for lumber sold, memorandum of items held admissible in connection with plaintiff’s testimony that it was furnished him by defendant at the time he bought the lumber, and that plaintiff gave it to third parties as an order to be filled by them.</p> <p>2. Appeal and Error <&wkey;1054(3) — Improper Admission of Testimony — Reversible Error.</p> <p>Where irrelevant and inadmissible evidence exerted no controlling influence upon the court in rendering the judgment, its admission would not warrant reversal.</p> <p>3. Appeal and Error <&wkey;690(2) — Erroneous Admission of Memoranda.</p> <p>Record showing only that memoranda were handed to witness who identified them is insufficient to show error in admission of memoranda.</p> <p>4. Appeal and Error <&wkey; 1011(1) — Conclusions of Fact Based on Conflicting Evidence-Review.</p> <p>The court on appeal will not set aside the trial court’s conclusions of fact upon conflicting testimony.</p>

<p>Appeal from Circuit Court, Jackson County ; W. W. Haralson, Judge.</p> <p>Action by Tinie Lockerd against the Eminent Household of Columbian Woodmen. Judgment for plaintiff by default, and defendant appeals.</p>

P. Almon, Judge. Suit between Percy Hampton and others and W. M. Counts, to quiet title and remove cloud. From a decree in favor of W. M. Counts, Percy Hampton and others appeal.

Leigh, Judge. Bill by the Union Naval Stores Company against D. B. Cobbs. Decree for complainant, and respondent appeals. Bill by appellee against appellant, seeking partition of the lands therein specifically described, situated in Mobile county, and alleged to be owned in equal parts by the parties as tenants in common.

G. Seay, Special Judge. Contest of claim between the Wiley Fertilizer Company and D. S. Carroll, as receiver of the Citizens’ Bank of Goshen. From decree overruling motion to dismiss the contest filed by the receiver and denying the claim, the claimant appeals. At the suit of the Hanover National Bank of New York, the Citizens’ Bank of Goshen was declared insolvent, its assets were declared to be a trust fund, and D. S. Carroll was appointed receiver, with the usual powers.

<p>1. Equity <&wkey;316 — Waiver of Answer Under Oath — Effect.</p> <p>Where the bill expressly waived answer under oath, the answer could not be excepted to for insufficiency, in view of Ch. Pr. rule 34 (Code 1907, p. 1538).</p> <p>2. Contracts <&wkey;99(l) — Presumptions.'</p> <p>In the absence of intimation of mistake, fraud, or imposition, it is to be accepted that the parties were entirely competent to contract, and freely entered upon such engagement as they made.</p> <p>3. Mines and Minerals <&wkey;58 — Oil and Gas Leases — Consideration.</p> <p>Nominal consideration of 31 for mining lease granting privilege of prospecting and removing oil and gas during period of one year, to be paid for at stipulated rates, was a sufficient consideration.</p> <p>4. Mines and Minerals &wkey;>73 — Leases — Construction.</p> <p>Construction of contracts relating to oil and gas should favor the owner where their terms admit of doubt, especially in view of the mobile character of such substances.</p> <p>5. Mines and Minerals <&wkey;73 — Leases — Construction.</p> <p>So-called leases of oil and gas held not to effect a grant in preesenti of the oil and gas as a part of the realty.</p> <p>6. Mines and Minerals &wkey;>73% — Leases— t Construction.</p> <p>So-called leases of oil and gas held not to create a tenancy at will so far as the lessor was concerned, though the lessee had the option of retiring from the agreement at any time.</p> <p>7. Mines and Minerals <®=58 — Contracts— Mutuality.</p> <p>Oil and gas leases, reciting consideration of $1, and authorizing lessee at any time within one year to prospect for and to remove oil and gas at stipulated rates, to be paid upon removal, were not void for want of mutuality merely because they failed to bind the lessee to prospect within one year.</p> <p>8. Mines and Minerals <&wkey;5S — Contracts-Mutuality.</p> <p>Oil and gas leases, authorizing lessee to prospect at any time within one year, were not void for want of mutuality, merely because they also gave the lessee the option of surrendering his rights under the contract at any time.</p> <p>9. Mines and Minerals &wkey;>58 — Contracts— Mutuality.</p> <p>Assuming that provision of oil and gas lease authorizing lessee to surrender and refuse to prospect within.the year’s option, “in consideration of the agreements herein contained,” should be restrictively referred to lessor’s obligation, the question was not available until the lessee attempted to surrender and abandon contract.</p>

Turner, Judge. Bill by A. L. Wilson against C. W. Zimmerman Manufacturing Company to quiet title to land. Judgment for complainant, and respondent appeals. Respondent denies plaintiff’s peaceable possession, and propounds his claim as founded upon a grant by the owner in June, 1889, of “all the pine timber 'now standing and being” on said lands, together with certain easements for its cutting and convenient removal.

<p>1. Animals i&wkey;27 — Death of Hired Mule— Negligence of Bailee.</p> <p>In action for death of mule hired by plaintiff to defendant, evidence held insufficient to justify submission to jury of whether mule’s death was the result of defendant’s negligence.</p> <p>2. Appeal and Error <&wkey;1177(5) — Disposition — Remand of Case.</p> <p>On appeal from judgment for plaintiff in action on three counts, where court erred in refusing affirmative instruction for defendant on two of the counts, but evidence was sufficient to justify submission to jury of third count and to justify finding for plaintiff thereon, the court on appeal not knowing under what count jury found for plaintiff will reverse judgment and remand ease.</p>

Turner, Judge. Contest between C. E. Mathers and T. J. Barrow, two attaching creditors for priority in the distribution of the proceeds of certain lumber sold under process against one Martin, and arises upon a motion of the sheriff for instruction. From the judgment rendered, Mathers appeals. Transferred from Court of Appeals under Acts 1911, p. ,450, § 6.

<p>Appeal from Circuit Court,- Clarke County; Ben D. Turner, Judge.</p> <p>Suit by the Robertson Banking Company against T. B. Pace. From a decree overruling. a demurrer to the bill, the defendant appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.</p> <p>Suit by Cullen Hárris pro ami against the Republic Iron & 'Steel Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Master and Servant &wkey;>129(2) — Proximate Cause oe Injury — Deeective Lever.</p> <p>There could be no recovery on count alleging that lever for disengaging machine was defective, where it appeared that had the lever not been defective it would have been useless because of the absence of a loose pulley.</p> <p>2. Master and Servant <&wkey;276(4) — Injury to Servant — Proximate Cause — Absence oe Loose Pulley.</p> <p>In action under Employers’ Liability Act for injuries received by plaintiff while operating a “dough roller,” held, under the evidence, that plaintiff’s injury could not, as a matter of reasonable inference, be ascribed to the absence of a loose pulley on the machine.</p> <p>3. Master and Servant &wkey;>265(4) — Injury to Servant — Negligence—Presumption.</p> <p>In cases under the Employers’ Liability Act, the employe’s claim cannot be aided by the presumption that negligence characterized the cause of his injury, it being necessary to prove negligence to the reasonable satisfaction of the inquiring mind.</p>

C. B. Guin, Judge. Action by J. M. Norwood against J. E. Stinnett on a promissory note. Judgment for defendant, and plaintiff appealed. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. The defendant filed the plea of the general issue and the following special pleas: (1) The defendant for further plea and answer to the plaintiff’s complaint says that the note upon which this suit is based is void for want of consideration.

E. Gamble, Judge. Action by Minnie S. McGuire, a grown woman, against B. G. Miller, in trespass In statutory form for an assault and battery committed upon , plaintiff by defendant. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450. Tlie pleas were tbe general issue, molliter manus imposuit in protection of defendant’s premises from tbe trespass o£ plaintiff.

<p>1. Carriers <&wkey;283(2) — Injuries to Passenger — Negligence.</p> <p>If any of a carrier’s servants, in charge of a train which plaintiff was in the act of boarding, negligently pushed or shoved her against the car steps or platform, it was a breach of duty for which the carrier was liable.</p> <p>2. Damages <&wkey;>148 — Personal Injuries —Pleading.</p> <p>Damages for the cost of medicines or medical treatment cannot be- recovered in a personal injury action, unless specially claimed.</p> <p>3. Trial <&wkey;62(2) — Reception of Evidence —Rebuttal.</p> <p>In a personal injury action, where defendant brought out on plaintiff’s cross-examination that she did not call in a doctor, it was competent for plaintiff in rebuttal to testify that she applied medicines to her alleged injuries, although she did not claim damages for the cost of the medicines.</p> <p>4. Appeal and Error <&wkey;1059 — Harmless Error — Evidence.</p> <p>In an action by a passenger for injuries from being shoved against a platform, the exclusion of testimony by the flagman who shoved her that he held no malice toward plaintiff was without prejudice, where the issue of willful or wanton negligence was withdrawn from the jury.</p> <p>5. Appeal and Error &wkey;>1058(2) — Harmless Error — Exclusion of Evidence.</p> <p>In an action for personal injuries, exclusion of testimony that defendant’s servant held no malice toward plaintiff was without prejudice, where he was immediately allowed to state that he had no “ill feeling” toward her.</p> <p>6. Appeal and Error <&wkey;1048(6) — Harmless Error — Admission of Evidence.</p> <p>In an action against a carrier for injuries, a question to defendant’s flagman on cross-examination, “if you gave her a shove or pushed her on that step, then you had no authority to do that?” to which he answered, “No,” could not have been prejudicial to defendant.</p> <p>7. Trial t&wkey;260(l) — Harmless Error — Instructions.</p> <p>It was not prejudicial to refuse an instruction fully covered by the oral instructions given to the jury.</p> <p>8. Damages <&wkey;131(l) — Excessiveness.</p> <p>$350 was excessive damages for a woman’s bruises from being shoved against a car step, and will be reduced to $200.</p>

Action by Eugene Ballard against the Atlantic Coast Line Railroad Company for damages for personal injury. Judgment for plaintiff, and defendant appeals. The injuries are alleged to have been sustained by plaintiff on February 4, 1916, by being struck on the head by a falling safety gate operated and maintained by the Atlantic Coast.

Action by Willie Holmes against the Alabama Power Company. Judgment for plaintiff was affirmed by the Court of Appeals (16 Ala. App. 633, 80 South. 736), and the defendant petitions for certiorari.'

F. Goodwyn, Special Judge. Action by J. O. B. Gwin against R. H. Long and others upon promissory note. Judgment for plaintiff, and defendants Long and Newman appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. The complaint declares for money due by bill single made by the defendants Newman and Long.

<p>1. Criminal Law <&wkey;631(l) — Impaneling oe Jury — Service oe Venire Upon Defendant — Statutes.</p> <p>Codo 1907, § 7840, requiring service of list of jurors with copy of indictment on defendant or Ms attorney in capital case at least one entire day before day set for trial, has been superseded by Jury Daw, § 32, providing that a list of names of jurors summoned for week in which trial is set and those drawn as provided by law to be forthwith served upon defendant, and that he should be entitled to no further notice.</p> <p>2. Criminal Daw <&wkey;301 — Pleas — Change on Day oe Trial.</p> <p>Whether defendant, after having pleaded “not guilty” on day of arraignment, shall be permitted to change plea on day of trial to “not guilty, by reason of insanity,” is discretionary with court.</p> <p>3. Criminal Law &wkey;>1166(l) — Harmless Error-Service oe Venire.</p> <p>Where venire served upon defendant in capital case omitted names of six of regular jurors for the week in which trial was set, and upon day of trial, on defendant’s motion, court ordered new venire to include omitted names which was served upon defendant about 9 o’clock p. m. on such date, and passed trial until following day, defendant was not prejudiced by such omission or such service of amended venire.</p> <p>4. Criminal Law <&wkey;927(2) — New Trial-Jury — Separation.</p> <p>Where four jurors, accompanied by bailiff, with court’s consent left jury room for toilet while jury was deliberating, being gone four or five minutes and being in court’s view until they entered toilet, and where jurors had been instructed not to discuss case pending separation, court did not commit error in refusing to set aside verdict on ground of such separation.</p> <p>5. Jury &wkey;>70(8) — Special Venire — Return op Card to Box.</p> <p>Refusal to quash venire on ground that card containing- name of person living within required radius of courthouse was returned to box after being exposed to court’s view was not error, where it was ascertained, after card had been drawn and name exposed to view, that required number had been drawn, and where it was necessary to expose names to ascertain if person drawn lived within required radius of courthouse.</p>

Leigh, Jr., Judge. Suit by Charles T. Ezell, revived after his death by B. W. Patrick, as administrator, and C. Agnew Ezell, against W. B. Paterson, individually, and W. B. Paterson doing business under the name and style of the W. B. Paterson Lumber Company. C. Agnew Ezell stricken as a party plaintiff, and judgment for plaintiff, and defendant appeals.

<p>1. Contracts <&wkey;15 — Mutual Assent.</p> <p>There must be a concurrence of intention to constitute a contract, and the minds of the parties must meet as to all the essential elements involved in the contract and as to the subject-matter and as to their respective rights and duties.</p> <p>2. Contracts <&wkey;24 — Offer and Acceptance —Letters.</p> <p>Letters will not constitute an agreement, unless the answer is a simple acceptance without the introduction of a new term.</p> <p>3. Sales &wkey;>22(4) — Contract — Mutual Assent.</p> <p>Where defendant by letter offered an indefinite quantity of boards at certain prices for different grades, and plaintiff’s letter in reply did not unqualifiedly accept the offer hut ordered a minimum quantity and added terms not referred to in offer, there was no mutual assent of parties to the same thing in the same sense, and hence no contract.</p>

<p>Appeal from Circuit Court, Lawrence County ; Robert C. Brickell, Judge.</p> <p>Action by W. I>. Kenner against Thomas F. Almon and another. Eh’om a judgment for defendants on their demurrers, plaintiff appeals.</p>

<p>1. Continuance <&wkey;35 — Admission oar Testimony oe Absent Witness — Instruction— Rule oe Court.</p> <p>The showing in an affidavit as to what absent witness would have testified to was entitled to same weight as if witness had appeared and testified, plaintiff having admitted witness’ testimony to avoid continuance under Circuit Court Rule of Practice, No. 16 (Code 1907, p. 1521).</p> <p>2. Trial <&wkey;296(8) — Instructions—Cure oe Error.</p> <p>Error in refusing defendant’s requested charge, that showing by affidavit as to what defendant’s absent witness would testify to was entitled to same weight as if witness had appeared and testified, held not cured by general charge within contemplation of Gen. Acts 1915, p. 815, amending Code 1907, § 5364.</p> <p>3. Evidence <&wkey;77(l, 3) — Presumption — Failure to Produce Witness.</p> <p>No unfavorable inference may be drawn because of absence of testimony of witness, where evidence shows absent witness’ evidence to be equally accessible to both parties, or that testimony would have been cumulative.</p> <p>4. Trial <&wkey;>122 — Argument oe Counsel — Comment on Failure to Produce Witness.</p> <p>No unfavorable argument of counsel may be made because of absence of testimony of witness, where evidence shows such absent witness’ evidence to have been accessible to both parties, or' that his testimony would have been cumulative.</p> <p>5. Master and Servant <&wkey;101, 102(8) — ,Saee Place to Work — Duty oe Master.</p> <p>Master need only exercise reasonable care and skill to have place of work reasonably safe for servant in exercise of due care in discharge of duties of employment.</p> <p>6. Master and Servant <&wkey;286(19) — Death oe Servani>-Saee Place oe Work — Questions eor Jury.</p> <p>In action for quarry servant’s death when struck by rock from blast in oilhouse where he had taken refuge, whether signals and places of refuge provided by company were reasonably sufficient, and whether it permitted employes to use oilhouse as refuge held for jury.</p>

<p>' Appeal from Circuit Court, Shelby County; Lum Duke, Judge.</p> <p>Suit by Peggy Kilgore and others against the Connors-Weyman Steel Company.</p>

<p>Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.</p> <p>Action by John Almon against the Royal Exchange Assurance of London. From judgment for plaintiff, defendant appeals.</p>

A. Pearce, Judge. Action by Central of Georgia Railway Company against Eunice O. Folkes, administratrix of the estate of A. M. Folkes, deceased. From decree overruling demurrer to bill, defendant appeals.

W. Haralson, Judge. Bill by Elmira S. Bothwell against Sallie B. Livingston to cancel deed for fraud and to sell lands for division. Decree for complainant, and respondent appeals. . The bill seeks the cancellation of a deed made by complainant to respondent to a half interest in property held by them as tenants in common, and to sell said lands for division.

C. B. Gwinn, Judge. Action by Leo Jones and others against the Tennessee Coal, Iron & Railroad Company for damages for polluting a stream. Judgment for defendant, and plaintiffs appeal.

D. Merrill, Judge. Action by Annie Carrie Headley against tlie HStna Insurance Company. Judgment for defendant, and plaintiff appeals. Appellant sued appellee on a policy of insurance 'known as tornado or cyclone insurance.

<p>Appeal from Circuit Court, Talladega County ; Hugh D. Merrill, Judge.</p> <p>Action between H. L. Castleman and the Royal Insurance Company, Limited. From the judgment rendered, the former appeals.</p>

<p>1. Insurance <&wkey;629(l) — Accident Insurance-Code Pleading.</p> <p>Counts of complaint on accident policy con forming to analogous forms contained in Code held sufficient as setting out contract of insurance in legal effect, though not in hsec verba, and as averring insurer had notice of death as required by policy.</p> <p>2. Appeal and Error >&wkey;1040 (6) — Prejudicial Error — Demurrer to Plea.</p> <p>If plea was not subject to demurrer, well assigned, reversible error was committed in sustaining demurrer to it, where defense presented was not embraced in other pleas on which issue was joined.</p> <p>3. Insurance <&wkey;629(2) — Accident Insurance-Pleading — Consideration.</p> <p>Counts of complaint on accident policy held to aver sufficiently that policy was in writing and founded on valuable consideration.</p> <p>4. Insurance <&wkey;640(2) — Accident Insurance — Pleading — Misrepresentation by Insured.</p> <p>Plea to complaint on accident policy, averring that certain statement made to insurer in application was made “with intent to deceive and did deceive” the insurer, held not demurrable for its omission of the word “actual” in connection, with “intent,” as used in Code 1907, § 4572.</p> <p>5. Evidence <&wkey;123(10) — Res Gest^ü — Accident Insurance.</p> <p>In action on accident policy, testimony of bystander as to what he did and said in assisting insured a few moments after his fall, while yet alive, held admissible as res geste.</p> <p>6. Insurance <&wkey;662(l) — Accident Insurance — Evidence—Notice oe Loss.</p> <p>In action on accident policy, where notice of loss required by policy was made an issue, beneficiary having been absent from state at time of death, her absence, illness, and immediate subsequent death were circumstances admissible for jury to consider on issue of due notice to insurer.</p>

Kyle, Judge. Action by W. P. Foust against E. O. Kinney and others in detinue, trespass, and trover. From judgment for defendants, plaintiff appeals.

<p>Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.</p> <p>Bill by the Lauderdale Power Company against E. M. Perry. Decree of dismissal, and complainant appeals.</p>

<p>Certiorari to Court of Appeals.</p> <p>Action by Helen Riley against S. B. Webb & Co. Judgment for plaintiff was affirmed by the Court of Appeals (16 Ala. App. 570, 80 South. 144), and defendant petitions for certiorari.</p>

<p>Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.</p> <p>Bill by Isadore Weil against E. L. Hill. Decree for complainant, and defendant appeals.</p>

<p>Appeal from Circuit Court, Coffee County; A. B. Poster, Judge.</p> <p>Action by the Elba Bank & Trust Company against the Mutual Life Insurance Company of New York, in which Eva C. Marsh was substituted as party defendant. Judgment for substituted defendant, and plaintiff appeals.</p>

<p>1. Quieting Title <&wkey;19 — Statutory Remedy-Scope.</p> <p>Bill to quiet and determine title and claims to land under Code 1907, §§ 5443-5449, may properly seek to correct or cancel deeds under which respondents claimed title and thereby remove cloud from complainant’s title.</p> <p>2. Adverse Possession <&wkey;29 — Uncleared Land.</p> <p>Landowner using land adjoining on two sides and very near his residence, for more than 30 years, as a part of bis land for the purpose of firewood and other timbers, where such use was open and notorious and land was not cleared or fenced, held to have title thereto by adverse possession.</p> <p>3. Estoppel <&wkey;94(2)^-ADMiNiSTRATOR’s Sale —Heir as 'Grantee.</p> <p>Administrator’s sale of land did not constitute an estoppel against heir to whom land had been conveyed by decedent by deed claimed to have described land by mistake, where no possession was ever taken by purchaser at such sale or bis grantees.</p> <p>4. Quieting Title <®=»23 — Statutory Remedy-Necessity of Possession.</p> <p>Complainant in bill to quiet and determine title and claims to land under- Code 1907, §§ 5443-5449, was required to show either actual or constructive possession at time bill was filed.</p>

<p>Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.</p> <p>Action by the Montgomery Light & Traction Company against J. P. Avant. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.</p>

T. Roberts, Judge. Proceedings for probate of the will of Tom Whittington, propounded by Olin Whittington, and contested by Savannah Miller and others. From judgment admitting the will to probate, the contestants appeal. Exceptions to evidence sufficiently appear from the opinion.

<p>Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.</p> <p>Suit by P. G. Kimbrough, trustee, for J. R. White, bankrupt, against L. T. Aired and others. From the decree, plaintiff appeals.</p> <p>The substance of the bill, which is filed by Kimbrough as trustee in bankruptcy for J. R. White, is that in 1915 White was considerably involved, most of which, was unsecured or inadequately secured, and that he owned a certain municipal lighting plant in Hartselle, consisting of machinery and appliances and certain valuable franchises, and that he executed to his brother-in-law, one L. T. Aired, a mortgage on this property for the sum of $6,000. Aired is described as a small farmer, living some distance from any town or village, and in the wilds of Cullman county. The detail of the mortgage is not stated, as it is stated that it has heen withheld from record and carried around by White; that after the execution of the mortgage White remained in possession of the properties, receiving the incomes, which were lucrative; and that it was understood when the mortgage was executed that White should retain it and the property, and he did so, and carried the mortgage around with him, putting it up with banks for the purpose of getting money on it, and it was withheld from record for these purposes.</p> <p>The consideration for the mortgage is denied, and it is alleged: That Aired never had that amount of money to lend, and could not have raised it at any time during his career without the aid of said White, and that said mortgage was made a secret trust for the ,greatly embarrassed White to shield his property and revenue from clamorous creditors, several of whom were suing him at the time. That in August, 1915, White sold out said plant and equipment to the Alabama Power Company for the sum of $8,000, prior to the payment of which sum White made an affidavit as to incumbrances, disclosing in said statement said mortgage. The Alabama Power Company in paying for said plant made out a check for $6,000 to his order, which he paid to said Aired really in trust for himself, and to screen the same from his creditors. The Alabama Power Company is charged with notice of the fraudulent designs of White and Aired, the unrecorded mortgage, and all the facts above set out as to the actions of White and Aired. That in making said check payable to White and requiring that he pay same to Aired the Alabama Power Company participated with knowledge of the fraudulent design and purpose of White and Aired.</p> <p>It is further alleged that A. B. Turney is a small merchant, having in stock at no time more than $1,000 of goods, also a bankrupt, and being involved in several sets of bankruptcy cases, and that White executed to him a mortgage for $2,000, which was devoid, or almost entirely devoid, of consideration, and conveyed thereby certain real estáte, which is set forth. White, being greatly indebted to the First National Bank of Hartselle and being embarrassed, procured Doss and Day to indorse for him, and executed to Doss a mortgage on certain real estate for the purpose of securing an indebtedness of $3,089.42, due January 1, 1917.</p> <p>It is alleged that the consideration for this mortgage was largely simulated, and that really only a small amount was due, while the other was for advances which were never really made; that for reasons best known to themselves said White and Doss concocted and antedated, as of July, 1915, a certain previous equitable mortgage which was without consideration, and which was given for the same indebtedness as the last above set out mortgage; that in February, 1916, AVhite made a fraudulent arrangement with the Hoods, father and son, by which they took over the Hartselle Heading and Stave Mill,.White as general manager, and Archie Hood, a minor, the sole owner, and doing those things that required personal responsibility, and together they obtained large profits, which were divided, and doctored the accounts, and covered up the transactions in such a way that it appeared that the enterprise was run at a -loss, when in fact it was profitable; that by such methods and by one S. E. Stewart, a ground floor mortgagee of the series, coming into the arrangement further, other profits were suppressed, said Stewart availing himself of a watchman, who stalked the works at intervals as an excuse for the claim of Stewart that he was in possession of the property. About this time White concluded it was best to be adjudged a voluntary bankrupt, and it was arranged in order that White and the Hoods might find shelter under the ample folds of the Stewart mortgage from the bankruptcy sequelse, to acknowledge Stewart’s possession and to attorn to him, and Stewart agreed to pose as possessor and protector for an agreed stipend to be paid at the rate of $75 per month for the time that the mill should operate.</p> <p>Other matters are alleged not necessary to be here set out. The prayer is to cancel the alleged mortgages from AVhite to Aired, to Doss and to Turney as fraudulent and simulated, and to require Aired to account for the money paid him by the Alabama Power Company for White; to hold the Alabama Power Company jointly and severally liable for the said sum of $6,000, and to render a decree against each of them personally, and to enjoin said Tumey and Doss from receiving any of the proceeds of the pretended foreclosure of their pretended mortgages; to set aside and annul the arrangement between White and the Hoods, for an accounting and ■general relief.</p> <p>The bill was amended by setting forth additional derelictions of the Hoods and White in the management of the Heading and Stave Mill.</p>

Grayson, Judge. Suit by Rolf Seeberg against Peyton Nor-ville and another. From a decree sustaining a demurrer to the bill, complainant appeals. Bill by appellant against appellees to cancel and set aside a deed executed by appellant through his attorney in fact to respondent Peyton Norville, and to cancel the mortgage executed by Peyton Norville to respondent Ellen T. Kelly upon the property conveyed to said Norville by complainant’s attorney in fact. .

Mandamus by the State of Alabama, on the relation of C. T. Rambow, against M. Y. Henry, as Treasurer of Jefferson County. From judgment for respondent, petitioner appealed to the Court of Appeals, which affirmed (16 Ala. App. 559, 80 South. 133), and the state petitions for certiorari.

<p>Appeal from Circuit Court, Elmore Couuty; Leon McCord, Judge.</p> <p>Robert Cosby was convicted of a crime punishable by death, and he appeals.</p>

<p>1. Master and Servant <&wkey;330(3) — Injuries to Servant — Independent Contractors— Evidence.</p> <p>In a coal miner’s action for personal injuries due to a fall of coal, evidence held to show that plaintiff’s direct employer as well as plaintiff himself were under the control and direction of defendant, not only as to the ultimate result of the work, but as to all its details.</p> <p>2. Master and Servant &wkey;52C5(l) — Injuries to Servants — Burden oe Prooe — Employment.</p> <p>In a coal miner’s action for personal injuries sustained through a fall of coal, the burden'was on plaintiff to show that he was a servant or employ'd of the defendant as averred.</p> <p>3. Trial <&wkey;141 — Direction oe Verdict — Undisputed Pacts.</p> <p>In a coal miner’s action for personal injuries sustained through a fall of coal, it was error to give a peremptory instruction that plaintiff was defendant’s servant without requiring the jury to believe plaintiff’s evidence, although undisputed.</p> <p>4. Master and Servant <&wkey;270(6) — Injuries to Servani^-Evidence.</p> <p>In a coal miner’s action for personal injuries due to a fall of coal, testimony by witness as to conditions in the mine when he first saw it after the injury was properly excluded, in the absence of proof that conditions were unchanged between that time and the time of the accident.</p> <p>5. Master and Servant &wkey;270(8) — Injuries to Servant — Evidence.</p> <p>Where a coal miner' was injured by a fall of coal in a mine, testimony by a witness who investigated soon after the accident, as to whether other coal or rock had fallen at other places than that where plaintiff was working, was erroneously excluded, the contested issue being whether the fall of coal was confined to the pillar at which plaintiff was working.</p> <p>6. Master and Servant &wkey;>270(8) — Injuries to Servant — Evidence.</p> <p>In a coal miner’s action for personal injuries due to a fall of coal, where it was contested whether the fall was confined to the pillar at which plaintiff was working or whether it started elsewhere, it was not sufficient to permit a witness to testify that the roof was not broken when he examined it after the accident, in answer to a question as to whether other coal bad fallen.</p>

Action by H. F. Bierly against the Shelby Iron Company for damages for personal injuries while in its employment. From judgment for plaintiff, defendant appeals.

<p>Certiorari to Court of Appeals.'</p> <p>Action by Mrs. A. B. York against W. H. Kemp. Judgment for plaintiff was affirmed by the Court of Appeals (16 Ala. App. 675, 81 South. 195), and defendant petitions for certiorari.</p>

<p>Appeal from Oircuit Court, Mobile County; Norville R. Leigh, Jr., Judge.</p> <p>Ejectment by Catherine Arata against against Henry F. Píeme. Affirmative charge was given in favor of plaintiff, and from the judgment rendered thereon defendant appeals.</p> <p>Suit in ejectment by appellee against appellant for the recovery of a certain strip of real estate, about 6 feet and 3 inches in width, fronting on the east side of North Lawrence street, in the city of Mobile. The affirmative charge was given in favor of the plaintiff, and from the judgment rendered the defendant prosecutes this appeal.</p> <p>At the time of her death, and for many years prior thereto, Laura G. Danne owned the property on the east side of Lawrence street between Dauphin and St. Francis streets, known as Nos. 10 and 12 North Lawrence street. Each of these lots contains a two-story residence, and is inclosed by fences, and the premises so arranged that a strip on the south side of each lot is used as a driveway going from Lawrence street to the rear to enable the occupants of the respective buildings to reach the garage, etc. The frontage of the property known and treated as No. 10 North Lawrence street, as inclosed by fences at the time of Mrs. Danne’s death, was 63 feet and 6 inches, and that of the adjoining lot, known as No. 12, as inclosed by fences, was 44 feet and 9 inches. In June, 1916, the executors of the last will of Laura G. Danne conveyed to the plaintiff, Catherine Arata, she being the highest bidder therefor, after having by proper proceedings obtained an order to that effect from the probate court of Mobile county, the following described property:</p> <p>“All that real property in the city and county of Mobile, state of Alabama, described as follows, to wit: That certain lot or parcel of land, with the frame dwelling thereon, situate on the east side of Lawrence street, between Dauphin and St. Francis streets, opposite the old No. 8 engine house, having a front on the east side of Lawrence street of sixty-nine -feet nine inches, and extending back eastwardly with even width one hundred ten feet four inches; bounded on the north by lands belonging to the estate of Laura G. Danne, deceased, and property now or late of Glennon; on the east by lands now or late of Richard; south by lands now or late of McCarty; and west by Lawrence street; being known as No. 10 North Lawrence street, and being the same property conveyed to Laura G. 'Danne by Sophia Frolichstein and William Frolichstein, by deed dated December 18, 1901, and recorded in the office of the probate judge of Mobile county, Alabama, in Deed Book 99 N. S., pages 32, 33.”</p> <p>This deed was executed June 13, 1916, and duly recorded the following day.</p> <p>Subsequent to the purchase by said plaintiff, on January 8, 1917, the devisees under the will of Laura G. Danne conveyed to the defendant, Henry F. Pieme, the adjoining property, known and called No. 12 North Lawrence street, and in the particular description therein gives the frontage along Lawrence street as 44 feet and 9 inches. At the time of the purchase by the plaintiff she went into possession of the property known as No. 10 North Lawrence street, as inclosed by fences, and did not discover until a few months afterwards that she had not acquired the entire property as described in her deed— that is, the 6 feet and 3 inches which lies north of the division fence, and which embraces a part of the driveway going to the rear of the premises of No. 12 North Lawrence street.</p> <p>Laura G. Danne acquired both pieces of property — Nos. 10 and 12 North' Lawrence street — in 1901 from one Frolichstein; the two pieces of property being conveyed in the same instrument, but as separate parcels or lots. That conveyed to plaintiff was described in the deed of Laura G. Danne from Frolichstein as follows:</p> <p>“That certain lot or parcel of land, with the frame dwelling thereon, situate on the east side of Lawrence street, between Dauphin and St. Francis streets, opposite the old No. 8 engine house, having a front on the east side of Lawrence street of sixty-nine feet and nine inches, and extending back eastwardly, with even width, one hundred and ten feet and four inches, bounded on the north by lands hereinafter described and property of Glennon, on the east by lands of Richards, south by land of McCarty, and west by Lawrence street, and being same property conveyed to these grantors by deed of record in Deed Book No. 55, N. S., page 115, Mobile county records.”</p> <p>The description in this deed of the lot subsequently conveyed to the defendant recited a frontage of 35 feet on the east side of North Lawrence street.</p> <p>It is further shown by the evidence that the strip of land in dispute originally belonged to the property known as No. 10 North Lawrence street; but that subsequently Laura G. Danne, being the owner of both pieces of property, built the fence — as the same stood at the time of her death — so as to add to No. 12 the strip of land here sued for, being a part of the driveway.</p> <p>When the case was called for trial the defendant filed a motion to have the cause transferred to the equity docket, under the ■act of the Legislature approved September 28, 1915. This motion set out, in substance, the facts as above stated, with additional averments, and seems to have been based upon .the theory that the defendant would be entitled to have a reformation of the deed to Catherine Arata, or “probably, more properly speaking, a proceeding in the nature of one to construe the description contained in tire said deed to Catherine Arata.” Demurrer to this motion was sustained.</p>

<p>Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.</p> <p>Proceedings for sale of land and distribution of proceeds among tenants in common, all of whom are parties. From an order and judgment in favor of Daisy White and others, setting aside a judicial sale and directing a resale, W. H. De Loach, as a tenant in common and purchaser at the sale, appeals.</p>

M. Miller, Judge. Ejectment by J. A. Pair against N. C. Fuller. Judgment for the plaintiff, and the defendant appeals.

<p>1. Evidence &wkey;471(27) — Conclusion — Extent of Possession.</p> <p>One could testify that he was in possession of the entire tract in controversy, though he could not testify that Ms possession was open and notorious.</p> <p>2. Adverse Possession <S=^85(3) — Evidence— Sufficiency.</p> <p>In suit to quiet title, evidence held sufficient to show that one of defendants’ predecessors had been in actual adverse possession of the entire tract in controversy for more than ten years.</p> <p>3. Evidence <&wkey;184 — Certified Copy of Deed — Admissibility.</p> <p>Where deed had been made to defendants’ ancestors about nine years before commencement of action by plaintiff to quiet title, no presumption should be indulged that defendants did not have custody and control of deed, and certified copy was, in view of Code 1907, § 3374, inadmissible in the absence of proof that original had been lost or destroyed, or that defendants did not have custody or control of original.</p> <p>4. Evidence &wkey;67(l) — Deeds—Continuance of Possession — Presumption.</p> <p>In the absence of proof to the contrary, the law presumes that a deed remains with the grantee.</p> <p>5. Appeal and Error <§=^1050(4) — Erroneous Admission of Certified Copy — Reversible Error.</p> <p>• In suit to quiet title, admission in evidence without proof that original had been lost or destroyed, or that defendants did not have custody and control of original, of the certified copy of a deed which was a necessary chain in defendants’ title, was reversible error.</p>

<p>Appeal from Circuit Court, Perry County; B. M. Miller, Judge.</p> <p>Bill by James T. Blackburn against Rowena McLaughlin and others. Prom a decree sustaining a demurrer to the bill, complainant appeals.</p>

<p>Appeal from Circuit Court, Talladega County; Hugh D. Merrill, Judge.</p> <p>Action by E. R. Partridge against the Win-field Lumber Company. Judgment for plaintiff, and defendant appeals.</p>

Appeal’ from Circuit Court, Tallapoosa County; S. L. Brewer, Judge. Action between W. IT. Knight and others and W. D. O’Brien and others. From a decree in favor of the latter, the former appeal.

Appeal 'from Circuit Court, Mobile County; Saffold Berney, Judge. Bill by Elsie B. Adams against Thomas H. Brannan and John P. McKay for redemption from sale under vendor’s lien, and for a reference to ascertain the amount necessary to effect the redemption. Decree overruling the demurrers to the bill, and respondents appeal.

Petition by the Terrell-Hedges Company against A. H. Moody, Judge of Probate of Jackson County, for mandamus to issue warrants authorized by resolution of the county board. To review a judgment of the Court of Appeals (78 South. 6391) reversing a judgment in favor of petitioner, petitioner brings certiorari.

Suit to foreclose mortgage by Win. J. Tesch, as trustee, and others, against Ella C. Atherton and others, wherein the named defendant filed a cross-bill. 'From decree of foreclosure, and granting cross-complainant part of the affirmative relief sought by her, she appeals.

<p>Appeal from Circuit Court, Covington Comity; A. B. Foster, Judge.</p> <p>Bill by Julia Miller and another against John R. Smith to quiet title to the timber on certain lands, and for a temporary injunction against its cutting and removal. From decree dismissing the bill, complainants appeal.</p> <p>The title to the land was in one S. T. Miller, who conveyed it by warranty deed to his wife and son, complainants here, oh August 29, 1916, without reservation or exception of the timber growing thereon. Respondent claims title to the timber by virtue of Ms parol purchase thereof from S. T. Miller in July, 1915, the purchase being $90, and that at the time he made the contract he paid $5 on the purchase price and took possession of the land and timber and cut cross-ties during that month from 100 to 140. He then discontinued cutting until July and August, 1916, when he cut about 800 more, paying in July $52.40 and August $42.50. On the final submission the trial court denied relief, dissolved the injunction, and dismissed the bill.</p>

<p>1. Insurance <&wkey;392(l) — Agents — Acceptance of Defaulting Premium.</p> <p>Where agent, having authority to accept defaulting premium, accepts premium with knowledge that payment was being made after default, such knowledge was imputable to the company, and forfeiture was waived.</p> <p>2. Principal and Agent <&wkey;>124(l) — Authority — Jury Question.</p> <p>Where agent’s authority is partly in writing and partly in parol, the extent of such authority is a question for the jury.</p> <p>3. Principal and Agent <&wkey;122(l) — Authority of Agent — Determination.</p> <p>Where agent’s authority is partly in writing and partly in parol, the jury in determining the extent of such authority may consider the acts and declarations of the agent.</p> <p>4. Insurance <&wkey;665(8) — Authority • of Agent — Notice to Insured — Sufficiency of Evidence.</p> <p>Evidence held insuffieent to show that beneficiary or insured was informed of the real authority of agents, to whom defaulting premium was paid.</p> <p>5. Insurance &wkey;>392(l) — Life Insurance-Agent’s Apparent Authority — Defaulting Premium.</p> <p>Acceptance of defaulting premium on life policy by agents having apparent authority to accept premium after default, upon payment thereof by persons having no information as to agent’s real authority, was binding upon insurer.</p> <p>6. Insurance <&wkey;665(8) — Life Insurance-Authority of Agent — Acceptance of Defaulting Premium.</p> <p>Evidence held to warrant jury finding that agents were authorized to accept defaulting premium.</p> <p>7. Insurance t&wkey;392(l) — Payment of Defaulting Premium.</p> <p>Where check in payment of defaulting premium was cashed by general agent with knowledge of default, and sent on for collection by paying bank and paid by drawee bank, the truth or falsity of statements in good health certificate subsequently received from insured was immaterial, though the drawee bank did not pay the check until after receipt of the certificate; since such payment, in view of' Code 1907, § 5136, related back to the day when the check was cashed and changed the conditional acceptance into an absolute payment as of that date.</p> <p>8. Insurance &wkey;>668(15) — Waiver — Jury Question.</p> <p>Whether there was a waiver of default by acceptance of defaulting premium was a question for the jury.</p> <p>9. Insurance &wkey;37l — Waiver of Forfeiture-Effect.</p> <p>Waiver by insurer of forfeiture by acceptance of defaulting premium did not create a now contract dating from the waiver, but merely gave the original contract binding force as if no cause of forfeiture had occurred.</p>

W. Harralson, Judge. Ejectment by H. P. McWhorter against the Alabama Great Southern Railroad Company. Judgment for the plaintiff, and defendant appeals. The action is for a small strip of land on either side of the defendant’s right of way, and it is agreed between the parties that Vann Hall is the common source of title.

<p>Appeal from Probate Court, Blount County; E. G. Alldredge, Judge.</p> <p>In the matter of the final accounting of J. B. Morris, guardian of Reedy H. Morris. Prom decree rendered on final accounting, the ward appeals.</p>

<p>1. Deeds <&wkey;194(3) — Date of Execution— Presumptio n — Ackno wled gment.</p> <p>Where a deed bears no other date than that of its acknowledgment, such date is. prima facie that of its execution or delivery.</p> <p>2. Dower <&wkey;66 — Parol Assignment — Statutes.</p> <p>The statutes providing for assignment of dower are not exclusive of the parol assignment recognized at common law.</p> <p>3. Life Estates <&wkey;8 — Assignment of Dower — Transfer—Rights of Purchaser — Adverse Possession.</p> <p>If there was a valid or binding parol assignment of dower whereby lands were set apart as a life estate to the widow, the subsequent possession of the person to whom the widow conveyed her dower interest prima facie would not be adverse to the title of the owner of the estate in reversion during her life.</p> <p>4. Appeal and Error <&wkey;713{3) — Review— Bill of Exceptions.</p> <p>The ruling of the trial court in equity on disputed issues of fact, tried by the jury, is presented for review by bill of exceptions, and the giving or refusing of a properly requested written instruction may be so reviewed, whether the charge is presented as a part of the record proper or by bill of exceptions.</p> <p>5. Affidavits <&wkey;18 — Admissibility in Evidence.</p> <p>Gen. Acts 1915, p. 919, is not broad enough to embrace the admission in evidence of affidavits tending to show a parol assignment of dower.</p>

<p>1. Appeal and Error &wkey;>843(3) — Review — Matters Necessary to Decision.</p> <p>Where it appears without dispute that plaintiff was guilty of negligence which concurred with that of defendant to produce the injury, it is unnecessary to decide whether there was any evidence to go to the jury on the question of defendant’s negligence.</p> <p>2. Railroads &wkey;3Sl(5) — Defective Bridge —Contributory Negligence — Effect.</p> <p>Although barriers and red lights intended to warn against use of bridge maintained by •defendant railroad under authority of city and was being repaired were insufficient, plaintiff, who, seeing both, attempted to cross the bridge without looking for holes and defects, could not recover.</p> <p>•3. Railroads <&wkey;384 — Defective Bridge-Personal Injuries — Contributory Negligence.</p> <p>Plaintiff pedestrian, who saw barriers and red lights intended to warn against use of bridge which was maintained by defendant railroad under authority of city and was being repaired, was conclusively charged with knowledge that' barriers and lights were placed to warn him not to attempt to cross.</p> <p>4. Railroads <&wkey;381(5) — Defective, Bridge — Injury to Pedestrian — Assumption of Risk.</p> <p>The mere fact that plaintiff pedestrian saw •others using bridge which was being repaired by defendant railroad did not justify him in disregarding defendant’s signals and red lights, .and where he did he assumed the risk.</p>

<p>1. Pleading <&wkey;106(l) — Plea in Abatement-Sufficiency.</p> <p>A plea in abatement is bad unless it gives the plaintiff a better writ.</p> <p>2. Justices of the Peace <&wkey;92 — Plea in Abatement — Unlawful Detainer Action.</p> <p>In an unlawful detainer action, a plea in abatement denying jurisdiction of the justice of peace, on the ground that cause of action accrued in adjoining precinct in which property fvás situated, under Code 1907, § 4267, was demurrable, where it failed to allege that there was a justice of peace in ’ adjoining precinct qualified to try cause.</p> <p>3. Justices of ti-ie Peace <&wkey;72 — Unlawful Detainer Action — Jurisdiction of Court.</p> <p>In view of Code 1907, § 4267, unlawful detainer action was properly brought before justice of peace of precinct adjoining that in which property was situated, though the office of justice of peace in latter precinct had not been vacated, where such office had no incumbent.</p> <p>4. Landlord and Tenant <&wkey;288, 290(3)— Unlawful Detainer Proceedings — Re-renting of Premises — Collusion.</p> <p>Although unlawful detainer action is possessory and grows out of the relation of landlord and tenant, a rerenting or subletting of a part of the premises, or any collusions by which other parties are placed in possession of a part of the premises, will not defeat the action.</p> <p>5. Landlord and 1?enant &wkey;>291(8) — “Unlawful Detainer” Proceedings — Possession by Surviving Wife — Sufficiency of Complaint.</p> <p>In unlawful detainer action against surviving wife of plaintiff’s lessee, complaint alleging that husband of defendant went into possession under a lease from plaintiff, and that defendant entered into possession under the tenancy of her husband as his wife, held sufficient allegation of defendant’s possession of the property, notwithstanding Code 1907, § 4263, defining “unlawful detainer” as where tenant refuses to deliver possession,</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Unlawful Detainer.]</p> <p>6. Landlord and Tenant <&wkey;291(8) — Unlawful Detainer Action — Complaint— —Possession of Plaintiff.</p> <p>In unlawful detainer action, complaint held to sufficiently allege plaintiff’s possession.</p> <p>7. Landlord and Tenant &wkey;>62(3) — Estoppei>-Title to Property.</p> <p>Lessee will be estopped from setting up any title adverse to lessor while retaining possession.</p> <p>8. Landlord and Tenant &wkey;>6(L-UNLAWful Detainer Action — Estoppel —Adverse Title to Property.</p> <p>Where defendant in unlawful detainer‘action entered into the possession of the property, by virtue of being the wife of lessee, she will be estopped from setting up title adverse to lessor, while retaining such possession.</p> <p>9. Appeal and Error &wkey;>1071 (6) — Review-Harmless Error.</p> <p>Court’s failure to make a special finding of facts upon defendant’s written request therefor, under Code 1907, § 5360, if error, was harmless, where under the undisputed evidence plaintiff was entitled to recover.</p> <p>10. Courts <&wkey;101 — Hearing — Circuit Court — Number of Judges.</p> <p>On appeal to circuit court of Mobile county from justice of peace court in unlawful detain-er action, the trial was properly held before only one instead of all three of the judges.</p>

<p>1. Appeal and Error i&wkey;994(2) — Review — Finding of Jury.</p> <p>In action on benefit certificate, jury’s determination, depending on the credibility of the evidence, will not-bo disturbed on appeal.</p> <p>2. Insurance ' &wkey;>755(2) — Mutual Benefit Insurance — Authority of Agent — Waivee of Defaults — Statute.</p> <p>Before Act 1911, p. 713, agent of mutual benefit society charged with duty of collecting premiums might have conferred upon him by implication, despite absence of authority in bylaws of society, authority to waive, defaults and forfeitures, resulting from failure duly to pay premiums and assessments, by reception thereof after they should have been paid.</p> <p>3. Insurance <&wkey;S25(2) — Mutual Benefit Insurance — Authority of Agent — Collection of Premiums — Question for Jury.</p> <p>In action against mutual benefit society on its certificates of life insurance, existence and extent of authority of agent to collect premiums after due date, and bind company on its certificates, resting on implication and in parol, held a question for the jury.</p> <p>4. Insurance <&wkey;S25(l) — Mutual Benefit Insurance — Agent to Collect — Delegation of Authority — Question for Jury.</p> <p>In action against mutual benefit society on certificates of life insurance, whether agent who collected assessments was authorized to delegate his authority to another to act for him, and in turn for defendant society, was a question for the jury.</p> <p>5. Insurance <&wkey;S18(l) — Mutual Benefit Insurance — Evidence.</p> <p>In action against mutual benefit society on certificates of insurance, it was competent for plaintiff to adduce evidence in recital of her version of statements made to her by society’s agent, who collected assessments, subsequent to agent’s receipt from his wife of check and cash in payment of assessments, delivered by insured’s relative to agent’s wife.</p> <p>6. Trial <&wkey;253 (5) — Mutual Benefit Insurance-Action on Certificates — Instructions — Omitting Issues.</p> <p>In action on benefit certificates, society’s special charges, which omitted to take account of issues of waiver of suspension from membership for nonpayment of assessments, asserted in plaintiff's replications, held properly refused, as they incorrectly contracted the issues for the jury.</p>

<p>1. Vendor and Purchases <&wkey;22 — Uncertainty in Contract — Explanation by Parol Proof.</p> <p>Contract, whereby respondent agreed to make complainant deed to 40 acj'es of land “joining the John Edge forty by him paying fifty dollars per year for three years and interest,” was not void for uncertainty in lacking description of any particular 40 acres, being capable of being, and having been, made certain by parol proof without violating statute of frauds or rules of evidence as to explanation of. written contracts.</p> <p>2. Frauds, Statute of <&wkey;129(8) — Sale of Lands — Part Performance.</p> <p>Where purchaser of lands by contract which did not describe any particular tract was put into possession of the particular tract of 40 acres, and part of the price was paid, the case was within the exception to the statute of frauds as to the sale of lands.</p> <p>3. Deeds <@=38(1) — Indefiniteness of Description.</p> <p>Mere indefiniteness in description of land conveyed by deed, though such as to render instrument prima facie inoperative, does not necessarily have that effect; evidence of extrinsic facts and circumstances being available to identify subject-matter.</p> <p>4. Contracts <&wkey;9(l), 155, 169 — Uncertainty —Construction.</p> <p>Courts are loath to strike down deliberate contract for supposed uncertainty in any of its terms, and, if any are ambiguous aud capable of more than one moaning, court will look to situation of parties and their objects to determine true meaning, and especially will construe doubtful terms against party who framed them and who was offering or undertaking to do things in question.</p>

<p>1. Corporations <&wkey;544(2) — Corporate Assets — Trust Fund — Rights oar Creditors— Stockholders.</p> <p>Capital stock and other property of corporation are deemed trust fund for payment of debts, so that creditors have lion or right of priority of payment out of it in preference to any right of stockholders, and this whether corporation is solvent or insolvent, independent of Code 1907, § 35.09.</p> <p>2. Corporations <&wkey;246 — Liability op Stockholders — Debts.</p> <p>Where stockholders of a corporation divide up assets without paying debts, creditors may obtain a" joint or several personal judgment against the stockholders up to value or proceeds of corporate property each has received.</p> <p>3. Corporations <&wkey;279 — Liability op Stockholders — Personal Judgments — Contribution.</p> <p>Where stockholders of corporation have divided assets of corporation without paying debts, a stockholder who has been compelled to pay more than his share of debts may compel contribution pro rata by other stockholders.</p>

<p>Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.</p> <p>Assumpsit by the Mobile Steel Company against the Bay City Roofing & Sheet Metal Works and W. B. Paterson and W. J. Nelson, partners composing the above firm. Judgment for plaintiff, arid the defendant W. B. Paterson appeals.</p> <p>The plea sufficiently appears. The following are the replications referred to in the opinion:</p> <p>Al, as amended:</p> <p>“Plaintiff says that defendant W. B. Paterson is estopped from denying his liability as a partner in this suit because he held himself out, or permitted himself to- be held out, as a partner in the following manner: The Bay City Roofing & Sheet Metal Works was organized by said defendant Paterson, W. J. Nelson, and Albert Max, as an unincorporated concern, for the purpose of engaging in business under that trade name at Mobile, Ala., and did so engage in business at said place, and while so engaged in its business the defendant Paterson participated in its business affairs, and, jointly with the defendant W. J. Nelson, controlled its funds. The said defendant Paterson has previously to organization of said concern been engaged in business with the said defendant Nelson as partners, and, after the organization of the Bay City Roofing & Sheet Metal Company, the individual names of said Paterson and Nelson and Max appeared on the business stationery of said concern, and the defendant Paterson had notice of these facts at the time the g-oods herein sued for were sold; and plaintiff alleges that its authorized representative, who for it and in its behalf extended the credit for which this suit is brought, knew the facts as hereinabove set forth at said time, and sold the goods which plaintiff alleges were to be used in said business at the express request of said Paterson, reasonably believing from said facts and such request that he was a partner in said Bay City Roofing & Sheet Metal Works, and the credit was extended because of said belief.”</p> <p>Replication A2, as amended:</p> <p>“For replication numbered A2 plaintiff adopts all the averments of replication Al, as herein-above set forth, down to and including the words ‘on the business stationery of said concern,’ and adds thereto the following: And previously to the opening of this account carried on business correspondence with plaintiff on said stationery. The Bay City Roofing & Sheet Metal Works was described in the reporting agencies of Dun and Bradstreet, who are engaged in giving to their subscribers in the trade information in such matters, as composed of said Paterson, Nelson, and Max. The Bay City Roofing & Sheet Metal -Works was carried in the city directories of the city of Mobile, Ala., and advertised in the daily newspapers in Mobile, as so composed. It was treated and spoken of generally in the trade in Mobile as a partnership composed of said individuals, and W. J. Nelson, who. was interested with the said Paterson with the active management of said concern, advised the trade generally and plaintiff that it was a partnership as so composed; that said Paterson stated to the representatives of Dun and Bradstreet that he was a partner in said company, and he had notice of all of the facts as hereinabove set forth at the time the goods herein sued for were sold; and plaintiff alleges that its authorized representative, who for it and in its behalf extended the credit for which this suit is brought at said time, know the facts as hereinabove set forth, and sold the goods whose value is sued for at the request of said Paterson, reasonably believing- from said facts and such request that ho was a partner in said concern, and the credit was extended with the knowledge of said Paterson because of such belief.”</p>

Clair County; O. A. Steele, Judge. Action by the Smith Lumber Company against Tony Garry, wherein the Company, as execution creditor, contested defendant’s claim of a homestead exemption. Prom an adverse judgment, the contestant appeals.

B. Smith, Judge. Action by Ruth Van Tinder against the Birmingham Railway, Light & Power Company for damages sustained while a passenger on one of its cars. Judgment for defendant, and plaintiff appeals.

<p>Appeal from Circuit Court, Lowndes County ; A. E. Gamble, Judge.</p> <p>Bill by Rudolph Dinkins and another against T. B. Holly. From a decree in favor of plaintiffs, the defendant appeals, and plaintiffs bring a cross-appeal.</p>

<p>Wills <&wkey;539 — Provision for Survivorship —Restriction "to Lifetime of Testatrix.</p> <p>Under will bequeathing to husband and children all property and providing that should children die before husband he “shall inherit their share,” held, that provision as to survivorship was restricted to the lifetime of testatrix, so that, where she was survived by her husband and their two children, a son and daughter, the son took an unqualified fee in an undivided one-third interest in land devised.</p> <p>Sayre, Somerville, and Thomas, JJ., dissenting.</p>

Clair County; O. A. Steele, Judge. Contest of claim of homestead exemptions between the Planters’ Chemical & Oil Company and T. L. Graham. Judgment for contestee, and contestant appeals. The Planters’ Ohemical & Oil Company had judgment against T. L. Graham with execution which was returned executed. An alias execution was issued on March 5,1918, and on March 6, 1918, was levied on certain lands as the property of Graham, who filed claim of homestead exemption.

Houghton, Jr., Judge. Bill by BIrs. Julia B. Edwards and others, as the sole heirs and distributees of BIrs-. America W. Neville, against Sadie Williamson and others, as the heirs of J. A. Neville and remainderman and devisee under the last will and testament of R. B. Neville.

B. Foster, Judge. Bill by Ruth Evans against A. J. Bryan, Jr., and E. Patterson to rescind land transaction and put the parties in statu quo. From a decree declining to grant the relief prayed as against the respondent Patterson, complainant appeals. Complainant exchanged her homestead property, then occupied by her, for land owned by A. J. Bryan, and a small money consideration.

B. Sowell, Judge. Suit by Z. R. Christian against Tullie Dunn for possession of a child. From a decree awarding the custody of the child to petitioner, the defendant appeals. The petition in this case was filed by Z. R. Christian against the respondent, Tullie Dunn, in Walker circuit court sitting in equity, seeking to have the court give to the petitioner the custody and control of a male child about three years of age, Paul Christian by name.

<p>Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.</p> <p>Suit by Lidia E. Helianas against the Dixie Lumber Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Statutes <&wkey;120(l) — Title—Cities.</p> <p>Acts 1915, p. 294, entitled an act “to further provide for the organization, government, and regulation of cities which now have or which may hereafter have a population of 100,-000,” etc., section 12 of which relates to giving city of notice of personal injuries, held not violative of Const. 1901, § 45, as containing two subjects not expressed in the title, or, if one only, that one not clearly expressed.</p> <p>2. Statutes <&wkey;141(2) — Amendment by Reference to Title — Constitution.</p> <p>Acts 1915, p. 294 et seq., providing for organization, government, and regulation of cities having population of 100,000, by implication affecting Code, § 1275, being in itself complete and original in form, is not violative of Const. 1901, § 45, providing no law shall be amended by reference to its title only.</p> <p>3. Municipal Corporations <&wkey;755(2) — Injuries on Street — Liability—Origin.</p> <p>Municipal liability for injuries to pedestrian on public street arises by necessary implication from legislative enactments on subject of municipal power and authority over streets.</p> <p>4. Municipal Corporations <&wkey;812(2) — Injuries on Street — Requirement oe Notice.</p> <p>Acts 1915, p. 298, § 12, providing that city within act shall not be liable for personal injuries to pedestrian through defect in street, unless notice is given within certain time, held not unreasonable, liability of city being statutory in origin, so that Legislature may attach conditions.</p> <p>5. Municipal Corporations <&wkey;812(6) — Injuries on Street — Statement op Injury —Technical Accuracy.</p> <p>Technical accuracy in statement of injury required by Acts 1915, p. 298, § 12, to.be filed with city clerk, by person injured on street, is not necessary.</p> <p>6. Pleading <&wkey;193(l) — Condition Preced-ENJy-PEREOEMANCE — EXCUSE.</p> <p>Omission to allege performance of condition precedent, or excuse for nonperformance, in case an excuse may be allowed, is fatal on demurrer.</p> <p>7. Municipal Corporations <&wkey;816(5) — Injuries on Streets — Pleading and Proop— Statement op Injury.</p> <p>Claimant against city for personal injuries on street can prevail in courts against city’s diligent defense only by alleging and proving that, as required by Acts 1915, p. 298, § 12, he has filed statement of injury with city clerk according to substantial requirement of statute.</p>

Locke, Judge. Bill by John Gaiter against W. B. Morgan, administrator of the estate of Harry Wilson, deceased, for the cancellation on the ground of fraud of two certain instruments executed by the complainant to the respondent. From a decree overruling the demurrer to the bill as amended, the defendant appeals. Bill by appellee against the appellant to cancel, on- the ground of fraud, two certain instruments executed by the complainant to the respondent.

B. Foster, Judge. Action by Mrs. M. M. Williams against the Central of Georgia Railway Company for damages for the death of certain cows. Judgment for plaintiff, and defendant appealed. Transferred from Court of Appeals under section 6, Acts 1911, p. 450. The complaint alleged the killing of a yearling and two cows by reason of the negligence of the defendant in the operation of its train of cars.

<p>Appeal from Circuit Court, Covington County; A. B. Foster, Judge.</p> <p>Proceeding to enforce collection of a tax by the Town of Red Level against the People’s Bank of Red Level. From judgment for complainant, respondent appeals.</p>

Merrill, Judge. Action by A. C. Dement, as administrator, against the Central of Georgia Railway Company for damages for death of his intestate. Judgment for defendant, and plaintiff appeals. It appears that verdict was rendered and judgment entered on April 23, 1918. There is some dispute as to when the bill of exceptions was sent to the judge, but it is not disputed but that the judge did not receive the bill until July 27, 1918.

<p>1. Evidence <&wkey;472(4) — Opinion Evidence —Matters for Jury.</p> <p>In a miner’s action for personal injuries, due to tbe fall of a roof, evidence by plaintiff as to bis opinion of bis duty to prop or inspect the roof was properly excluded; such duty being a question of law, fixed by statute on ascertained facts.</p> <p>2. Negligence <&wkey;122(2) — Burden of Proof —Contributory Negligence — Plaintiff’s Evidence.</p> <p>In action for personal injuries, due to fall of roof in mine, Where proof of contributory negligence was furnished by plaintiff himself as witness, affirmative charge for defendant was not erroneous.</p>

<p>Appeal from Circuit Court, Jefferson County ; Hugh A. Locke, Judge.</p> <p>Action between Frank Stevens, as Treasurer, etc., and James F. Hawkins, as Tax Collector, etc. Decree for the latter, and the former appeals.</p>

Brickell, Judge. Action by J. W. Phillips against the Louisville & Nashville Railroad Company iand John Cobb, the engineer in 'charge of the train, for damages for the death of plaintiff’s minor son. There was judgment for plaintiff in the sum of $15,000, and defendants appeal.

<p>■Certiorari &wkey;42(l) — Proceedings — Submission of Brief.</p> <p>Where petition for certiorari to Court of Appeals is not accompanied by brief in support thereof, as required by Supreme Court amended rule 42 (198 Ala. xiv, 77 So. p. vii), it will be dismissed.</p>

<p>Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.</p> <p>Suit by M. B. Grace, as guardian, against Louis Perunbo and others. From decree for respondents, complainant appeals.</p>

<p>1. Insurance <&wkey;591% — Indemnity Against Principal — Judgment for Person Injured —Enforcement Against Company.</p> <p>Under contract insuring against liability for injuries with stipulation that insurance copipany should not be liable except for liabilities actually discharged by payment of money, a person injured by assured and obtaining a judgment against him has no standing in equity as against insurer to compel it to pay judgment, even though insurance company assumed the conduct of defense to action against assured and even though assured is insolvent.</p> <p>2. Insurance <&wkey;591% — Indemnity Against Liability — Judgment for Person Injured —Enforcement Against Company.</p> <p>Under contract insuring against liability for injuries with stipulation that insurance company should not be liable except for liabilities actually discharged by payment -of money, a person injured by assured and obtaining a judgment against him has no standing in equity against insurance company by reason of fact that insurance company settled its liability with the assured rather than by payment of judgment ; assuror not having been made a party to suit except that it assumed the conduct of defense.</p>

<p>1. "Wills <&wkey;53(C) — Probate—Testamentary Capacity — Evidence.</p> <p>Where will was being contested on ground of insanity, proponent should have been, allowed to introduce evidence that testator’s aberrations were temporary and consistently coincident with excessive use of intoxicants; testator not being under influence of intoxicants at time of signing of will.</p> <p>2. Appeal and Error &wkey;>743(l) — Matters Reviewable — Assignments oe Error.</p> <p>Assignments of error which point to wrong1 pages of transcript need not he considered.</p>

<p>1. Appeal and Error &wkey;>511(l) — Matters Reviewable — OBills oe Exceptions — Authentication.</p> <p>Where the appeal record contains bill of exceptions, but does not show that it was authenticated by signature of judge presiding at trial as required by Code 1907, § 3018, questions depending on the bill cannot be reviewed.</p> <p>2. Appeal and Error i&wkey;>511(2) — Matters Reviewable — Bills oe .Exception — Time poe Filing.</p> <p>Where appeal record contains bill of exception, but does not show that it was presented within time prescribed by Code 1907, § 3019, questions depending on the bill cannot be reviewed.</p> <p>3. Appeal and Error @=>637 — Defects in Record — Judicial Notice.</p> <p>Supreme Court will take notice ex mero that a bill of exceptions was not authenticated by judge as required by Code 1907, § 3018, and was not presented within time prescribed by Code 1907, § 3019.</p>

<p>1. Taxation i@=584^-Action for Taxes— Debt or Assumpsit.</p> <p>Either debt or assumpsit will lie to recover taxes due and unpaid.</p> <p>2. Pleading <&wkey;63 — Complaint—Statutory Action.</p> <p>In actions based on statutes, it is necessary to show that act or omission, complained of as constituting cause of action is within provisions of statute which gives right of action, and all facts and circumstances which are necessary to support action must be alleged.</p> <p>3. Licenses <&wkey;32Í2) — Action for Tax-Pleading — Sufficiency. ■</p> <p>A complaint, in action by county to recover license or privilege tax under act approved September 14, 1915 (Gen. Acts 1915, p. 527), held insufficient.</p> <p>4. Pleading <&wkey;48 — Inferences.</p> <p>Facts which constitute cause of action should be stated in complaint and not left to inference.</p> <p>5. Pleading <&wkey;63 — Statutory Actions— Exceptions.</p> <p>In action for debt, in declaring on a statute, if there be an exception in enacting clause of statute, pleading must show that defendant is not within exception; but, if exception be in a subsequent clause of- statute, it becomes a matter of defense to be shown by, defendant.</p> <p>6. Pleading "&wkey;48 — Complaint—Statement . of Facts.</p> <p>Code 1907, § 5321, which enjoins brevity, has not impaired substance of requirement that facts which constitute a cause of action should be stated.</p> <p>7. Action <&wkey;16 — Preservation of Forms of Action.</p> <p>It is duty of judges to preserve forms of actions, and parties are not to be permitted to convert them by their own contrivances, and to perplex court and jury with multifarious and inconsistent claims.</p> <p>8. Pleading <&wkey;34(4) — Construction op Pleading.</p> <p>Under both Code and common law, a pleading must be construed most strongly against the pleader.</p>

A. Pearce, Judge. Suit by T. T. Willis against the Excello Bottling & Ice Company and another. From a judgment for defendants, plaintiff appeals. Appellant brought suit against the Excello Bottling & Ice Company and one T. H. MeGriff to recover damages for injuries to himself and his car in an accident occurring on the public roads of Henry county, which he charges was caused hy the wrongful conduct of the servant or agent of the defendants.

Merrill, Judge. Suit by Thomas B. Hale, administrator of the estate of Charles E. Hale, deceased, against the Saginaw Lime & Lumber Company, for damages for deceased’s wrongful death. Judgment for plaintiff, and defendant appeals.

<p>. Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.</p> <p>Bill by J. M. Turner and others against L. L. Turner and others. Prom decree for defendants, complainants appeal.</p>

Leigh., Jr., Judge. Action by James Gibbony & Co. against the Ollinger & Bruce Dry Dock Company. From judgment for plaintiffs, defendant apxieals. Appellees, owners of a barge called Cahaba, entered into a contract with the appellant for the “proper repair.” of said barge; the repairs not being specified, nor anything said as to the price or the time within which the work was to be done.

Miller, Judge. , Action by Harry A. Hammett against the Birmingham Railway, Light & Power Com-pany, for injuries sustained while a passenger. Judgment for defendant, and plaintiff appeals. The plaintiff stated his ease as for injuries proximately caused by the negligence of the servants or agents of the defendant while acting in the line and scope of their employment in and about the carriage of plaintiff as a passenger of the defendant.

B. Foster, Judge. Action by tbe Nadawah-Lumber Company against V. W. Long and T. A. Moore, for conversion of timber. Judgment for plaintiff, and defendants appeal. Tbe following are tbe counts of tbe complaint referred to in tbe opinion: Second.

<p>Appeal from Circuit Court, Cullman County; Robert C. Brickell, Judge.</p> <p>Suit by Robert Chamblee against H. E. Johnson. Prom decree overruling demurrer to the amended bill, respondent appeals.</p> <p>This appeal is from a decree overruling a demurrer to an amended bill. The original bill was to cancel a deed conveying 50 acres of land, more or less, which was executed by complainant to respondent. The bill alleges the main consideration for the deed to be that the grantee would provide and maintain a home and care for the grantor during the life of the latter. The grantor was an aged man, and was suffering from an affliction of cancer on his face. The members of his family having left or deserted him, he was left alone.</p> <p>The equity of the bill is made to rest on two theories: One that of undue influence; the other, actual fraud which deceived the grantor to his prejudice, and which authorized him to rescind and to have the deed canceled.</p> <p>The appellant contends the considerations for this deed, and others like it, are in a class to themselves sui generis, and cannot be canceled or annulled as for failure to perform; that the remedy of the grantor is on the undertaking in a court of law.</p> <p>The trial court sustained the demurrer to the original bill upon the theory that the facts to show undue influence or fraud were not sufficiently alleged. The bill was thereafter amended by amplifying the averments as to both undue influence and fraud, and to the bill as amended the demurrer was overruled. No material facts were averred in the amended bill which were not averred in the original bill, though there is amplification by averring the quo modo by which it alleged the undue influence and fraud were effected.</p> <p>It is proper to say that different judges passed on the sufficiency of the original and amended bill.</p>

<p>Appeal from Circuit Court, Blount County; O. A. Steele, Judge.</p> <p>Suit by S. A. Woolbert against L. R. Julian, administrator de bonis non of the estate of Andrew J. Reilly, deceased. Decree for complainant and respondent appeals.</p>

W. Harralson, Judge. Bill by Lee Dowdy against W. P. Hicks and others to redeem, and for an accounting, and for other relief. Demurrers to the bill were overruled, and respondents appeal. The bill shows that the complainant transferred to the respondent W. P. Hicks, as collateral security for complainant’s own note to Hicks for the sum of $272, a certain mortgage on 40 acres of land, which mortgage was executed to complainant by William King to secure an indebtedness of $572.

Bill by Annie W. Thompson against H. F. Martin and the Union Bank& Trust Company for an accounting and to fix a prior lien upon certain property described in a mortgage executed by the Cowarts to her. From a decree overruling the demurrers to the bill, the respondent Union Bank & Trust Company appeals. The assignment referred to is as follows: State of Alabama, Montgomery County.

<p>Appeal from Circuit Court, Jefferson County; Hugh. A. Locke, Judge.</p> <p>Bill by Walter Williams, pro ami, against Charles Williams and others. Decree for defendants, and plaintiff appeals.</p>

_ Bill by the Wqgtern Union Telegraph Company against the Louisville & Nashville Railroad Company. Erom. decree rendered, complainant appeals.

<p>1. Brokers <&wkey;67(2) — Compensation—Dual Agency.</p> <p>A broker may be the agent of both principals, if that be the understanding between'all parties, but he cannot be openly the agent of one and secretly the agent of the other, and claim compensation from both.</p> <p>2. Brokers <&wkey;88(l) — Actions for Compensation — Evidence—Submission to Jury.</p> <p>In an action by a broker, the question of the right to recover compensation and the amount thereof were properly submitted to the jury.</p> <p>3. Evidence <&wkey;>159 — Parol—Proof of Existence.</p> <p>The existence of a deed may be shown by parol, without its production or accounting for its absence, .where there is no attempt to prove its contents or its legal effect.</p> <p>4. Trial <&wkey;76 — Evidence—Admissibility-Time of Objection.</p> <p>An objection to a question calling for inadmissible testimony, not made until after the question is answered, is too late.</p> <p>5. Brokers <&wkey;85(8) — Actions for Commission — Evidence—Admissibility.</p> <p>In an action by a broker to recover compensation, where 'defendant had introduced proof as to the date of proceedings in another suit affecting title to the land, and of the parties to it, etc., the record of such case was admissible to contradict or explain that evidence.</p> <p>6. Brokers <&wkey;85(8) — Action for Compensation — Evidence—Admissibility.</p> <p>In action by a broker for compensation, the record in another suit against defendant held admissible, since it may have involved title to lands exchanged, and preventing the title from being merchantable, thus showing tnat the failure to consummate the exchange was the fault of defendant and not of plaintiff.</p> <p>7. Appeal and Error ■&wkey;837(2)— Review — Record.</p> <p>In a suit by a broker for commission, where the exchange was not consummated because of defects in title, the appellate court cannot determine whether a certain suit was a lis pen-dens, where the record thereof is not presented.</p> <p>8. Brokers <&wkey;85(7) — Action for Compensation — Evidence.</p> <p>In an action, by a broker for compensation, in which defendant claimed fault of plaintiff in not-procuring a person able and willing to make the agreed exchange, in that such party did not show a good and merchantable title to his lands and that the cause of failure of negotiations was not any defect in defendant’s title, becp.use of pending litigation, a letter held admissible to show that the third party, who was to make the exchange, had notice of such defect in title.</p> <p>9. Brokers <&wkey;48 — Action for Commission— Party Procured — 'Variance.</p> <p>In an action by a broker for commission, it was wholly immaterial whether the party procured as able and willing to purchase was an individual or a company,</p> <p>10. Brokers i$=^S8(7) — Action for Compensation-Instructions.</p> <p>In an action by a broker for compensation for negotiations for an exchange, which failed because of defects in title, a requested instruction, usmg the word “complete” abstract, which it was not in the agreement to furnish, was properly refused, the parties having understood there were one or more incumbrances on each piece to be exchanged, for the phrase “complete” abstract might have instructed the jury that one showing perfect title was required.</p>

<p>Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.</p> <p>Action by T. S. Kyle and another, trustees, against the Alabama City, Gadsden & Attalla Railway Company. From judgment for plaintiffs, defendant appeals.</p> <p>This cause was submitted and determined under new rule 46 (178 Ala. six, 65 South. vii), Mr. Justice MAYFIELD delivering the opinion of the court.</p> <p>Statement of Case..</p> <p>Appellees sued appellant. The complaint contained nine counts. All the counts except the first and the ninth were eliminated, and their elimination is not questioned on this appeal. Count 1 is in. Code form, on a promissory note. The note sued on is in words and figures as follows:</p> <p>“Gadsden, Ala., July 22, 1909. $4060.00.</p> <p>“No. -..</p> <p>“Six months after date we promise to pay T. S. Kyle and E. T. Hollingsworth, trustees, or order four thousand and sixty dollars for value received with 6% interest from maturity until paid, payable at the First National Bank of Gadsden, Ala.</p> <p>“The makers and indorsers of this note hereby expressly waive all right to claim exemption allowed by the Constitution and laws of this state or any other state, and agree to pay cost of collecting this note, including reasonable attorney’s fee for all services rendered in any way in any suit against any maker or indorser, or in collecting or attempting to collect, or in securing or attempting to secure, this debt, if this note is not paid at maturity. Notice and protest on the nonpayment of this note is hereby waived by each maker and indorser.</p> <p>“Ala. City, Gadsden & Attalla Ry. Co.,</p> <p>“By E. T. Schuler, V. Pt.</p> <p>“P. O. Gadsden.”</p> <p>Count 9 declared as for a breach of contract, which contract consisted of a letter the proposals of which were accepted and acted upon by the addressee, and parties interested therein. The letter was in words and figures as follows:</p> <p>“Gadsden, Ala., July 22, 1909.</p> <p>“Mr. W. H. Hassinger, Prest. Southern Iron & Steel Co., Birmingham, Alabama — Dear Sir: In consideration of your moving the entire rod and wire mill now located at Ensley, and reconstructing same upon an enlarged scale at, or adjoining, your present Alabama City plant, and putting same in operation,</p> <p>“We, the undersigned, who would be benefited thereby agree to pay to the Southern Iron & Steel Company the sum of: Twelve thousand one hundred eighty dollars in cash, to be paid as follows:</p> <p>“We will execute note, with security, payable in six months after notice of your acceptance of this proposal for % of the above amount, and note of the same date for % payable in twelve months and % payable in 18 mos., and will deposit same with T. S. Kyle and E. T. Hollingsworth, of Gadsden, Ala., as trustees, or with other parties satisfactory to you. s</p> <p>“This will be the trustees’ authority to deliver the note payable in six months, to you, so soon as the mill is half completed, and the twelve months note and eighteen months note when the mill is completed and has been in operation for a period of thirty days.</p> <p>“Will give you thirty days in which to accept or reject this proposition. Notice of acceptance may be given in the newspapers or otherwise.</p> <p>“Ala. Cy., Gadsden & Attalla Ry. Co.,</p> <p>“By E. T. Schuler, Vice Pt.</p> <p>“Witness: —-”</p> <p>The original action, which was on count 1 alone, was brought April 2, 1910. Count 9 was added October 5, 1917. Defendant demurred to each count, and objected to the allowance of the amendment by adding count 9, and moved to strike the same as improperly filed and as constituting a departure, and upon other grounds. The demurrer and motion of defendant being overruled, defendant filed a plea of non est factum to count 1, and a plea of ultra vires and many other special pleas to count 9. Demurrer was interposed to all of the special pleas, and was sustained as to some, and overruled as to others. To some of the special pleas filed, the- plaintiff interposed replications 2 and 4, which were as follows:</p> <p>“(2) And for further replication to each of said pleas 9, 10, 11 and 17, plaintiffs say that the cause of action stated in the counts of the complaint to which said pleas are filed arose from the same transaction from which the cause of action stated in the original complaint at the commencement of this suit arose, and for that reason said causes of action stated in the several counts to which each of said pleas is filed are not barred by the statute of limitations as pleaded.”</p> <p>“(4) For further replication to defendant’s pleas 2, 12, 13, 14, 15, 16, and 19, plaintiffs say that at the time of the making of the contract, incurring the liability or obligation sued on in each of the counts to which said pleas are filed, the defendant possessed and had the power and authority to contract as set out in the joint agreement of consolidation of the Alabama City, Gadsden & Attalla Railway Company and the Gadsden Railway, Light & Power Company, which joint agreement of consolidation was entered into by said two corporations in the year 1906, a copy of which said joint agreement is attached to this replication and made part thereof, as Exhibit A; that at and before the making of said note and contract and at the time of incurring the obligations and rights of action stated in each of the counts of the complaint to which each of said pleas are filed, the defendant corporation was engaged in the operation of street railways in the cities of Gadsden, Alabama City, and Attalla, one of which of its said linos of railway extended from the city of Gadsden through the city of Alabama City to the city of Attalla, and within such distance from the place, or site, to which said rod and wire mill was to be removed and reconstructed on an enlarged scale and put in operation that the employés of said rod and wire mill could reach the same from the said line of street railway, said line of street railway being located within such distance of said site as to enable the employés of said rod and wire mill residing at Gadsden and Attalla to travel to and from their work on said line of street railway; that at that time the defendant corporation was also operating an electric plant in the city of Gadsden for the production of currents of electricity for heating, lighting, power, and other purposes and was selling said currents of electricity to the public in the city of Gadsden; that at that time the defendant corporation was also operating in the city of Gadsden an ice plant in which it manufactured ice for sale and distribution to the public in said cities of Gadsden, Alabama City, and Attalla, and was also conducting a coalyard and selling coal to the public in said cities of Gadsden and Alabama City; that the removal of said rod and wire mill and the reconstruction of the same on an enlarged scale and the placing of the same in operation, and when placed in operation, did require a large number of employés in the operation of the same, to wit, 1,500 men, many of whom resided in the cities of Gadsden and Attalla and many of whom traveled to and from their work on said line of defendant's street railway extending from Gadsden through Alabama City to Attalla; that the removal and reconstructing on an enlarged scale and the placing in operation of said rod and wire mill has greatly increased the population of said cities of Gadsden and Alabama City, and caused many new houses to be constructed and many people to move into said cities, all of which has resulted in a greatly increased travel on defendant’s street railway lines, and greatly increased consumption of the currents of electricity produced by it, and has greatly increased the sales of coal sold by it in its coalyard; all of which has resulted greatly to the benefit of defendant and to the development, benefit, promotion, and increase of the businesses being conducted by the defendant and which it had power and authority to conduct.”</p> <p>To these replications demurrers were interposed and overruled. The trial resulted in a verdict and judgment for plaintiffs in the •sum of $18,047.91. From this judgment defendant prosecutes this appeal, assigning many errors.</p>

<p>Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.</p> <p>Action by tlie State of Alabama against the Atlantic Coast Line Railroad Company. From' a judgment sustaining a demurrer to the complaint, the plaintiff appeals.</p>

L. Brewer, Judge. Action by the Atlas Lumber Company against the Dixie Industrial Company, both being described as corporations. Judgment for plaintiff, and defendant. appeals.

<p>1. Mortgages <&wkey;226 — Possession oe Mortgagor — Conveyance by Mortgage.</p> <p>The possession of a mortgagor is not adverse to the mortgagee, in the sense to render void the mortgage, or a deed by the mortgagee to a third party, and such deed would pass the mortgagee’s legal title, subject to the equitable title of the mortgagor, which might include the right of possession.</p> <p>2. Mechanics’ Liens <&wkey;57 (1), 187 — Improvements by Mortgagor.</p> <p>A mortgagor in possession is the owner of premises, in such sense that he can contract for improvements to be placed on the premises, and mechanics or materialmen may acquire a lien therefor, which may be enforced against the interest of both mortgagor and mortgagee.</p> <p>3. Mechanics’ Liens <&wkey;263(7) — Foreclosure — Necessary Parties — Mortgagee.</p> <p>A mortgagor in possession before foreclosure is not the owner of the legal title, or owner in such sense as to dispense with the necessity .of having the legal tiñe before the court in a bill to enforce mechanics’ liens, either upon the land or the buildings thereon, Code 1967, § 4766, providing that mortgagee is not bound by proceedings unless a party thereto.</p> <p>4. Mechanics’ Liens <&wkey;5 — Statutes — Necessity of Compliance.</p> <p>The lien a materialman or mechanic acquires is by virtue of the statutes only, and the statutory requirements as to acquiring and enforcing it must be pursued, else it is lost or does not exist; it being neither a right in nor to property, but simply a right to charge property.</p> <p>5. Mechanics’ Liens &wkey;>263(7) — Foreclosure — Necessary Parties — Mortgagee.</p> <p>A mortgagee, who on the date he received the mortgage giving him legal title, and before the bill for foreclosure of the mechanic’s lien •was ¡Bled, or the lien had attached, conveyed his interest to another, was not a proper or necessary party to the proceeding for foreclosure.</p> <p>6. Mechanics’ Liens <&wkey;263(4) — Parties.</p> <p>In proceedings to foreclose a mechanic’s lien, a party holding the legal title as purchaser from the mortgagee is a necessary party.</p> <p>7. Mechanics’ Liens &wkey;>260(4) — Bringing in New Parties.</p> <p>Whore original bill to foreclose mechanic’s lien, filed within the 6 months required by Code 1967, § 4777, sought only a decree in rem subjecting the property to the lien, and assignee of mortgagee was not made a party, although deed from mortgagee to her was filed of record, and complainant knew all the facts prior to the expiration of the 6 months, an amendment to the bill, made after expiration of the 6 months, making such assignee a party, could not relate back to the tíme of filing the original bill, but was barred by the statute. „</p>

<p>Appeal from Circuit Court, Mobile County; Norville R. Leigh, Jr., Judge.</p> <p>Action by William H. Martin against the Norton-Crossing Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.</p> <p>Action by Horace Turner & Co. against the Munson Steamship Line. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Reformation of Instruments <&wkey;19(l)— Mutual Mistake.</p> <p>Where grantor deliberately prepared and executed the warranty deed, without excepting outstanding mortgage from covenant of warranty realizing -that grantee could recover for breach of covenant, notwithstanding knowledge of incumbrance, deed will not be reformed, on ground of mutual mistake by excepting mortgage from covenant.</p> <p>2. Reformation of Instruments &wkey;>19(l)— Inadvertent Osíission.</p> <p>Where grantor inadvertently failed to except mortgage from covenant of warranty, but there was no concurrence of intention or mutual understanding between the parties that mortgage was to be excepted, deed will not be reformed so as to except mqrtgage, where there is no suggestion of fraud.</p> <p>3. Appeal and Error <&wkey;1033(9) — Error Favorable to Appellant.</p> <p>Grantors cannot be heard to complain on appeal that decree against them for breach of warranty was for less than the amount secured by the covenant.</p>

<p>Appeal from. Circuit Court, Tuscaloosa County; Henry B. Foster, Judge. ,</p> <p>Bill by Mary T. Jemison, as executrix of the will of M. P. Jemison, against Lela J. Brasher and others, to remove an estate from the probate to the chancery for partial settlement, and to construe the will. From the decree rendered, the complainant appealed.</p> <p>The bill sought to determine by its construction of the will: (1) Whether or if complainant, as such executrix, should desire before the said Virginia J. Cobb reaches the age of 21 years to sell and convey any of the land belonging to said estate for reinvestment or division among the children of said testator she may lawfully sell the same; and (2) whether, under the fourth clause of the will, complainant may lawfully sell any property of said estate and use the proceeds thereof for her own individual support, or otherwise for her individual use as may be necessary or as she may desire.</p> <p>So far as necessary to be here set out the will is as follows:</p> <p>Second: I give, devise and bequeath unto my beloved wife, Mary Torrey Jemison, all of the property of every kind and character of which' 1 may die seized and possessed, to have and to hold during the term of her natural life and at her death to be equally divided among my children.</p> <p>Third: I nominate and appoint my beloved ■wife, Mary Torrey Jemison, as executor of this will and it is my desire and 1 direct that she shall not be required to give any bond or make any report to any of the courts of this state as to any of her actions as such executor.</p> <p>Fourth: After my youngest child shall become of lawful age of twenty-one years, my wife as such executor shall have the power to sell and convey any lands that may belong to my estate either for reinvestment or for the purpose of division of the proceeds among those entitled to the same, and my said executor shall have the right at any time to sell any personal property that may belong to my estate and use the proceeds thereof as she may desire.</p>

A. Pearce, Judge. Ejectment by M. J. Patterson against the Atlantic Coast Line Railroad Company. Judgment for defendant, and plaintiff appeals. The portions of the contract directed to he set out are as follows: ( “The parties of the second part covenant and agree: * * * “Thirteenth.

Action by the City of Decatur against the Western Union Telegraph Company. Judgment for plaintiff was affirmed by the Court of Appeals (16 Ala. App. 679, 81 South. 199), and defendant petitions for certiorari.

Action by the City of Decatur against the Postal Telegraph-Cable Company. Judgment for plaintiff was affirmed by the Court of Appeals (16 Ala. App. 684, 81 South. 204), and the Telegraph Company petitions for certiorari.

Action by the People’s Shoe Company against the Ocean Steamship Company of Savannah. There was a judgment of the Court of Appeals, affirming a judgment in favor of the plaintiff, and the defendant brings certiorari.

Action by A. G. Goodwyn against the Birmingham Southern Railroad Company. From judgment for plaintiff, defendant appealed to the Court of Appeals, which reversed and remanded the cause, and plaintiff petitions for certiorari.

<p>Partnership <&wkey;340 — Dissolution op Firm —Sale oe Assets — Decree.</p> <p>The court trying bill for dissolution of partnership, having made provision for sale of the firm’s hotel lease under such conditions as will yield best results reasonably obtainable, and having adjudicated nonforfeiture of lease, is without power to require lessor to file a consent to sale or waiver of its rights under lease, and its decree of sale is not improvident for its failure to do so; assumption being that, if sale does not bring a fair price, court will decline to confirm it.</p>

B. Poster, Judge. Proceeding by J. W. Dobbs against T. W. Brunson to contest the election for Mayor of the Town of Tallassee. There was a judgment for the former, and the latter appeals.

<p>Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.</p> <p>Action by John Speer against J. E. Tucker. Judgment for plaintiff, and defendant appealed. Transferred from Court of Appeals under section 6, Acts 1911, p. 450.</p>

Leigh, Jr., Judge. Action by the Grand Bay Band Company against J. M. Simpson. A judgment for plaintiff was set aside, and it appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

<p>1. Principal and Agent &wkey;>170(5) — Ratification of Settlement — Suit to Recover Proceeds.</p> <p>Where plaintiff sued to recover the proceeds of a settlement made by defendant with a railroad company, he ratified such settlement, made on his behalf by defendant.</p> <p>2. Appeal and Error <&wkey;1015(l) — Review-Grant of New Trial.</p> <p>Where the trial court saw and heard the witnesses on an issue of fact, and granted new trial, the Supreme Court will not disturb the decision, unless evidence plainly and palpably supported the jury’s verdict.</p>

S. Lewis, Chancellor. Bill by Mrs. Mary B. Brooks against the Greil Bros. Company for an accounting and to declare a trust. . Decree for respondent, and complainant appeals.

<p>1. Appeal and Eeeoe &wkey;578(l) — Finality of Decree.</p> <p>The test of finality of a decree to support an appeal is, not whether the cause remains in fieri in the court of equity, awaiting further proceedings to entitle the parties to their acquired right, but whether the decree ascertains and declares such rights, embracing the substantial merits of the controversy and the material issues of fact and law litigated or necessarily involved.</p> <p>2. Appeal and Eeeoe &wkey;>71(4) — Finality of Decree — Compensation of Receives.</p> <p>Decree allowing compensation to a receiver for the operation of a hotel under the direction of the court and reserving all other questions is final and supports an appeal.</p> <p>3. Appeal and Eeeoe <&wkey;1009(l) — Finding by Chancellor — Review.</p> <p>The rule precluding review of finding of registers on the oral examination of witnesses, if there is reasonable doubt of its correctness, is applicable to finding of chancellor based on evidence heard in open court.</p> <p>4. Receivers <&wkey;198(l) — Compensation — Amount.</p> <p>The test of the reasonable value of the services of a receiver for the operation of a hotel is, not what the receiver might have obtained for his services in some other business wholly different, but what the services actually performed were reasonably worth,</p> <p>5. Receivers <&wkey;198(2) — Compensation—Discretion of Court.</p> <p>Action of the chancery court in fixing $200 per month for a period of eight months as the compensation of a receiver who operated a hotel, which hotel had no dining room, but was only a rooming house, held not an abuse of discretion.</p>

<p>Appeal from Circuit Court, Mobile County; Norville R. Leigh, Jr., Judge.</p> <p>Action by Charles H. Goodloe against H. M. Friedenthal. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.</p> <p>Count 1 of the complaint is as follows:</p> <p>“Plaintiff claims of the defendant the sum of $1,500 as damages, for that the plaintiff on or about October 4, 1917, was at the depot of the Louisville & Nashville Railroad Company, a public place, in the city of Mobile, waiting to take a train, and that while so waiting, and at about 1 o’clock in the morning, the defendant, who was then and there accompanied by Milton Kopf, an employé, and two police officers, under threats and expressions forced plaintiff to take off his suit of clothes, which he then had on, and wrongfully took said suit of clothes, which was the property of the plaintiff, and all of which was done in a rude, oppressive, and insulting manner, and which caused the plaintiff to suffer much humiliation and embarrass'ment, all to his damage in the above said amount.”</p> <p>There was one other .count in the complaint. The cause was tried upon the general issue, resulting in a verdict and judgment for $500 in favor of the plaintiff; from which the defendant prosecutes this appeal.</p> <p>Plaintiff’s evidence tended to show that he purchased a suit of clothes on open account to be paid for in 60 days, and, while preparing 'to leave the city, the defendant with his clerk and two police officers of the city of Mobile came to the depot in the city of Mobile at 11 o’clock at night, insisting on payment for the said suit of clothes or its return ; that he (plaintiff) was threatened with arrest for obtaining goods under false pretenses; and that, “if I did not give him the suit of clothes or money therefor, I was going to have trouble on my hands.” It is further shown that defendant’s conduct was threatening, and insulting in the presence of others, and in order to avoid trouble and arrest the plaintiff took off the suit of clothes —going into the freight depot for that purpose —and delivered the suit to defendant; that plaintiff had not obtained the goods under false pretenses and had made no misleading statement whatever.</p> <p>The evidence for the plaintiff was further to the effect that he was in the employ of the Louisville & Nashville Railroad Company at the time of the purchase, but left said employ that night, accepting a position elsewhere.</p> <p>Defendant’s evidence tended to show that plaintiff had represented he was in the employ of the Louisville & Nashville Railroad Company, and that he would pay for the goods on the “next L. & N. pay day”; and that defendant went to the depot to get back his goods or the money for same; that he obtained the advice of the police sergeant before going to the depot with the officers. It is further shown that he took the clothes hack to the store and disposed of them. Defendant further stated that the reasonable value of said suit of clothes was $27. No warrant was obtained for plaintiff’s arrest.</p> <p>Defendant requested the affirmative charge in writing, which was refused, and also the following charge, which was refused:</p> <p>“(3) The court charges the jury that if they believe from the evidence that the plaintiff obtained the goods by false representations as to his employment, and that the defendant would not have parted with the goods except for such representations, 'then the defendant had the legal right to take police officers with him for the purpose even of having the plaintiff arrested. He had the legal right to talk to the plaintiff about the goods, and, if the plaintiff, being afraid of being arrested, gave up the goods, then the jury should find for the defendant.”</p> <p>Appellant’s (defendant’s) counsel insists that the verdict is excessive.</p>

E. Blackwood, Judge. Bill by L. L. Herzberg and others against J. C. Miller and others to dissolve the corporation known as the Gadsden Realty Company, for a receiver pending the proceedings and for a sale of the property. Decree for complainants and respondents appeal. The bill is filed by minority stockholders of the common and preferred stock of the Gadsden Realty Company.

Action by S. H. Hendrix against the Mobile Register for libel. Judgment for defendant on demurrer to the complaint, and plaintiff appeals.

Action by Catherine Bancroft against William Vizard. Judgment for defendant, and plaintiff appeals. The first and second counts are the common counts. The third count set up a contract wherein, for certain considerations, Catherine Bancroft leased for a certain term of years to the firm of Hieronymus Bros, a certain tract of land on the river front in Mobile and certain personal property situated thereon.

Pugh, Judge. Action by Blount County against W. J. Shelton, Tax Collector, and his official bond, for taxes alleged to be due. Judgment for plaintiff, and defendants appeal. The action was for a breach of the bond and failing to pay over to the county treasurer $4,000 for county taxes collected for the year beginning October 1, 1916.

<p>1. Partition <&wkey;13 — Cotenancy—NatureRemainders.</p> <p>Where one person owns the entire reversion and another the life estate, there is no tenancy in common, and no sale for distribution can be had, under Code 1907, § 5231.</p> <p>2. Quieting Title <&wkey;35(3) — Pleading — Possession.</p> <p>A bill to quiet and determine title is fatally defective, where it does not allege possession in complainant.</p> <p>3. Equity <&wkey;>452 — Bill op Review — Laches.</p> <p>A bill of review, or in the nature thereof, whose purpose is to correct a final decree and sale of land in a court of equity, is without equity when filed nearly 40 years after the sale, the fact that complainant knew nothing of the matter adding nothing to the equity; the matter being of record.</p>

<p>Appeal from Circuit Court, Coffee County; A. B. Poster, Judge.</p> <p>Suit by James Harrison and others against H. H. White. Prom decree for plaintiffs, defendant appeals.</p>

<p>1. Brokers <@=48 — Compensation—When Entitled to.</p> <p>A broker is entitled to his commission, when he produces to his principal a customer ready, willing, and able to buy on the terms provided by such principal, within the period allowed, or, if the time is not limited, before the revocation of the agency.</p> <p>2. Brokers <&wkey;63(l) — Compensation — Default of Principal.</p> <p>If a broker procures purchaser able, ready, and willing to buy on terms stated, he is entitled to compensation though, by reason of his principal’s fault, the sale is never _made.</p> <p>3. Brokers <&wkey;52 — Compensation — Performance.</p> <p>Unless the contract of employment stipulates to the contrary, the procurement of a binding written contract between his employer and his customer is not necessary to complete performance of his duties on the part of a broker, provided the surrounding circumstances are such that the employer is in a position to execute it himself.</p> <p>4. Brokers <&wkey;58 — Compensation — Performance.</p> <p>If it was not a condition' precedent to the authority of a broker to sell coal, or find a purchaser, that the purchaser supply equipment for moving the coal, it was not necessary for the broker to provide for the same in his negotiations with a purchaser, and failure to do so did not render a contract with the purchaser so indefinite as to render the transaction invalid, as the law would determine whose duty it was to furnish or procure the equipment, a matter with which the broker was not concerned.</p> <p>5¡ Brokers <®=»79 — Action for Compensation-Form of Action.</p> <p>Where a broker brought the mind of the buyer and seller to an agreement upon the terms of sale, and the buyer was able, ready, and willing to buy, there was a constructive consummation of the sale so far as the broker was concerned, and the broker could maintain an action on the common counts and introduce the agreement as evidence of the value of his service.</p>

<p>Certiorari to Court of Appeals.</p> <p>Petition of Lizzie Shelby for certiorari to the Court of Appeals.</p>

<p>Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.</p> <p>Action by Kelly Vandiver against the De Bardeleben Coal Company for damages for injuries while engaged in his employment. Judgment for defendant, and plaintiff appeals.</p> <p>■While engaged in defendant’s service as a scraper behind an electrically driven coal-cutting machine operated by one Guttery, plaintiff was struck and injured by the lever of the machine which he was operating for the purpose of taking up the slack in the chain.</p> <p>Complaint is in six counts. Counts 1 to 4 are framed under subdivision 2 of the employer’s liability statute, and charge that Guttery, the superintendent of the defendant, was negligent in the exercise of the superintendence : (a) In that he ordered plain- , tiff to take the slack out of the chain of the electric machine, and negligently started the machine while plaintiff had hold of the lever; (b) in that he negligently caused or allowed said machine to be put in motion while plain-. tiff had hold of a part of it; (c) in that he failed to instruct plaintiff as to the proper manner of operating said machine, knowing that plaintiff was inexperienced in that line of work; (d) that he negligently caused or allowed said lever to strike plaintiff. Count 5 is framed under the same subdivision as the counts above referred to, and charges that Langley, the mine foreman of the defendant, was negligent in his superintendence, in that he removed plaintiff from his regular work of track cleaning and put him to the most dangerous of scraping after the electrical machine, and negligently failed to instruct him as to the danger of the work knowing that he was inexperienced in such work. Count 6 is framed under subdivision 3 of the statute, and charges that Guttery, to whose orders plaintiff was bound to and did conform, negligently ordered the plaintiff or directed him to tighten the chain on the electrical machine while it was in operation, which it was highly dangerous for plaintiff to do. The court sustained the demurrers to count 3, but overruled the demurrers to all the other counts, and at the conclusion of the evidence gave at the request of the defendant the general charge.</p>

<p>Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.</p> <p>Suit by Howard C. Rush against the City of Mobile and another. From an adverse judgment, the City appeals. Transferred from Court of Appeals, under section 6, p. 449, Acts 1911.</p> <p>Suit for damages by the appellee against the city of Mobile and the Jott Construction Company, for personal -injuries alleged to have been sustained by the plaintiff (appellee) while passing along the wharf at the foot of Dauphin street in the city of Mobile, falling through a hole in said wharf.</p> <p>During the progress of the cause, the construction company was eliminated by action of the court, and the cause was submitted to the jury upon the complaint against the city of Mobile, and the general issue joined thereon, resulting in a judgment for the plaintiff for $150, from which the city prosecutes this appeal.</p> <p>The evidence for the plaintiff tended to show that the wharf had been destroyed by the storm of July 5, 1916, and had been partially rebuilt by the city on September 2, 1916, when the plaintiff was walking on said wharf at the foot of Dauphin street and fell through a hole into the river, sustaining the injuries complained of; that this wharf was a thoroughfare, or public highway, in the city of Mobile; that the hole was caused by several planks having been omitted therefrom ; and that it was left unguarded and without lights to indicate that the hole was there.</p> <p>Defendants insist, and offered testimony to ■show, that the wharf at that place — where the plaintiff claims to have fallen into the river — had been completed, that no planks were missing, and no hole was there.</p> <p>Motion was made for a new trial upon the ground that the verdict, of the jury was contrary to the weight of the evidence. This motion was denied.</p>

A. Pearce, Judge. Bill by P. M. Metcalf against G. D. Griffith and wife, in which G. D. Griffith files cross-bill against his wife and complainant. From a decree overruling a demurrer to cross-bill, complainant appeals.

<p>■Criminal Law <&wkey;1215 —• Punishment — Imprisonment and Fine.</p> <p>Acts 1915, p. 2, § 3, providing a fine of not ■exceeding $500 and imprisonment or confinement at hard labor, at the discretion of the court, for violation of such act, gives the trial judge the right to impose a sentence to jail or at hard labor for the county, although the case was tried by, and a fine assessed by, a jury.</p>

<p>1. Gifts <&wkey;47(l) — Obal Gift of Land— Bubden of Bboof.</p> <p>In action to quiet title to land held under an alleged oral gift, where defendants, heirs of the alleged donor, filed cross-bill, burden of proof was on complainant to show a perfected gift;</p> <p>2. Appeal and Eeboe <&wkey;1118 — Relief Between Codefendants.</p> <p>In action to quiet title, where decree was for defendants and complainant alone appealed, appellate court cannot properly decide whether the several defendants, as between themselves, should have the particular interests decreed them.</p>

P. Almon, Judge. Action by W. I. Hawkins against the Northern Alabama Railway Company, for damages to a cow. Judgment for plaintiff, and defendant appeals. As originally brought the action was against the appellant and the Sheffield Iron Corporation. By amendment the Sheffield Iron Corporation was stricken from the complaint, and the cause proceeded to judgment against the present appellant.

Brickell, Judge. Bill by the Powers Clothing Company, a corporation, against J. B. Smith, to declare a lien upon land and to sell same to satisfy a judgment obtained by complainant against one J. C. Carpenter. Decree for respondent, and complainant appealed.

<p>1. Pleading <&wkey;8(ll) — Conclusion—Interest in Property.</p> <p>A bill attempting to charge a defendant with fraud and wrong in procuring the deed sought to be set aside and containing nothing but the pleader’s conclusion that such defendant had any interest in the property or deed is insufficient.</p> <p>2. Cancellation of Instruments <&wkey;35(2)— Setting Aside Deed to Remainder — Proper Parties — Cloud on Life Estate»</p> <p>Where a mother deeded property to a son retaining a life interest, and the son deeded his remainder to another, the son’s deed is not a cloud on the mother’s life estate and she is not a proper party plaintiff to the son’s suit to cancel his deed.</p> <p>3. Equity <&wkey;427(l) — Decree—Parties—Misjoinder of Plaintiffs.</p> <p>All the parties joined in an equitable suit must be entitled to recover, or none can, and, if a plaintiff is not competent to sue, the only remedy of the' parties plaintiff is to amend by striking out the name of the plaintiff who has no cause of action.</p> <p>4. Cancellation of Instruments <S=»35(3)— Suit to Set Aside, Deed — Parties Defendant — Former Adjudication.</p> <p>In a suit to cancel a deed secured by defendant through her husband, the husband was not a proper party, where the proof showed an independent suit had been filed against him by the present plaintiffs and prosecuted to a final judgment determining that he had no interest therein.</p>

<p>Appeal from Circuit Court, Pickens County; Henry B. Foster, Judge.</p> <p>Suit by Vera Stacy Cook against H. P. Williams, to remove respondent as trustee of complainant’s estate under the will of J. E. Stewart, deceased, and to construe the will. Decree for respondent, and complainant appeals.</p> <p>This bill was filed by appellant against appellee seeking to have appellee removed as trustee of her estate under the will of her father, J. E. Stewart, deceased, and to have the provisions of the will in so far as they related to the complainant construed by the court.</p> <p>The bill, in substance, shows the execution of the will on February 15, 1915, by J. E. Stewart, father of complainant, his subsequent death, and the probate of said will. Pursuant to the terms of the will, the chancery court of that county appointed one Long as trustee of complainant’s estate, who accepted and discharged the duties of that office until March, 1917, when he resigned, and the respondent was appointed trustee as his successor, and is now in the discharge of his duties as such trustee under the provisions of the will. At the time of the death of her father, and the execution of said will, complainant was married to James D. Cook, Jr., who was also a minor. It is further averred that although a trustee is provided for her estate by the will, yet there is nothing in the will stating how long said trust should continue; that it was the intention of the will that said trust should continue only during her incapacity by reason of nonage,, and, notwithstanding complainant has now reached her majority, the trustee continues to discharge the functions of that position and to manage complainant's estate. In paragraph 7 of the bill it is alleged that in the eleventh paragraph of the will provision-is made for the sale of timber belonging to her estate, and that it was the intention of the will that the complainant be permitted to-manage the sale of the timber and receive the entire proceeds thereof; but, notwithstanding this, the trustee declines to allow her to control the sale of the timber or apply the proceeds to her own use.</p> <p>The prayer of the bill seeks a construction of the will in conformity with the contention of the complainant; that the trustee be removed, and the estate be delivered to complainant free from his interference; and, further, that complainant be decreed to have the right; to sell the timber belonging to said estate. There is also prayer for general relief.</p> <p>The will is made an exhibit to the bill. Certain lands are devised to the wife for her life, with remainder over to certain grandchildren. By the will there is also a devise-to the two sons, Thomas Early Stewart and James E. Stewart of certain lands for life, with remainder to their children, eta; also a devise for life to the husband of a deceased daughter, with remainder to de^ visee's son; and also providing for the appointment of a trustee for the granddaughter’s share of the estate, as well as the grandson’s share of the estate.</p> <p>The sixth and eleventh paragraphs of said will are as follows:</p> <p>“6. I will and bequeath to a trustee to be appointed by the chancery court for the benefit of my beloved daughter Mrs. Vera Stacy Cook, said trustee to be required to give bond as the court may direct, but be it remembered that should the said Mrs. Vera Stacy Cook die without child or children .or grandchildren lawfully begotten, living at her death, then in that event ah the land given said trustee for her benefit by this will, and all money or property of any kind the said trustee may have on. hand or be lawfully entitled to receive at her death, shall in that event revert to and become-the property of the heirs of my body. The-lands devised to said trustee as conditioned above are described as follows: [Here follows a description of said land.] And said trustee to be-appointed as above directed, is required to rent out all of the above-described land, and also to receive all money that may come to her, Mrs. Vera Stacy Cook, from my estate, and such money to be loaned out on such terms and security as the chancery court may direct, but I particularly require and direct that all interest on all loans shall be paid annually, and that all interest and rents over and above expenses of this trust and taxes shall be paid to her annually, and I furthermore direct that the said trustee shall allow the said Mrs. Yera Stacy Cook to remain on and occupy and have the use and control of her residence and lands as her said home without interference, and said trustee is required to receive and collect all money or property of any kind that may under any and all circumstances be due her, * * by virtue of this will, and also by virtue of the fact that she is my child and will be an heir at law of my body, and he is required to pay any and all money arising as a profit from the same annually to said Mrs. Vera Stacy Cook.</p> <p>“11. I further will and direct that my wife and two sons, and the trustee appointed for Mrs. Vera Stacy Cook, the trustee appointed for Stacy May Stewart, and the trustee appointed for Joseph Reed Long, should either of them desire to sell the timber on the lands willed to either of them, respectively, may do so, and the money so received for said timber by my wife and two sons become their money respectively in fee simple, and the money received by the trustee or trustees for the respective persons subject to all the terms and conditions as required of the several trustees in this will. But in selling the timber I will and direct no timber less than ten inches in diameter, one foot from the ground on which said timber is standing shall be sold, and when the timber is sold, the purchaser shall not have more than five years from the date of sale to remove the same from said land, and after the expiration of the time not more than five years from date of sale, and any and all timber then remaining on the land shall revert to and become the property as devised as above.”</p> <p>The answer of the trustee admits the allegations of the bill except that it was'the intention of the testator that the trustee should be appointed only during the minority of the complainant, and shows that he was legally acting as trustee in the discharge of his duties, and denies that it was intended by the will that the complainant should have control of the timber or the proceeds of the same. The trustee also joins in the prayer, “if proper so to do, that the will be construed so as to define the duration and character of said trust estate.”</p> <p>The evidence was that the two sons, Thomas E. Stewart and James E. Stewart, were of age at the time of the execution of the will, and that the grandchildren provided for in the will and complainant were minors; the complainant being 17 years of age. Complainant’s husband was also under age. The evidence further shows that the estate left complainant consists of several farms, and that the farm implements, mules, and horses are deterioratipg, and will soon be of no value; that the lands are producing very little income, and insufficient for complainant’s support; that the trustees have handled it as well as could be managed, but the estate will nevertheless continue to deteriorate under said management.</p> <p>The evidence also shows that the will was drawn by a practicing attorney of 30 years’ experience in the drafting of wills and advising as to the management of trust estates.</p> <p>The court decreed that the trust estate had not been terminated, but was still in existence as provided for in the will, and was being economically and well managed, and, further, that the complainant under the will was not entitled to the full proceeds of the timber to be paid over to her; but that the funds were to be loaned out by the trustee and the annual interest paid to complainant, and therefore complainant was not entitled to the relief, and the bill was dismissed. From this decree the complainant prosecutes this appeal.</p>

E. Blackwood, Judge. Action by H. T. Wilson, as administrator, against the Gulf States Steel Compány, for damages for the death of his intestate. Judgment for defendant, and plaintiff appeals. This is an action for the death of plaintiff’s intestate, resulting from defendant’s negligence. After trial, resulting in verdict and judgment for defendant, which was reversed on appeal, defendant interposed four additional special pleas puis darrein continuance, including plea No. 7.

<p>1. Pleading <&wkey;193(6) — Joinder oe Causes —Demurrer—Separate Liability.</p> <p>Where two carriers are sued jointly in action on the case for failure to deliver shipment of household goods, counts based on separate liability of one or the other carrier are demurrable.</p> <p>2. Carriers &wkey;>91 — Nondelivery oe Goods Shipped — Liability.</p> <p>Where shipper marked his goods as destined for “Jones,” when he intended them for “Johns,” carrier would not be liable for failure to deliver at the latter station.</p> <p>3. Pleading &wkey;>ll — Matters oe EvidenceMisdelivery oe Shipment.</p> <p>Where carrier, as defense to nondelivery, pleaded that shipment Was marked “Jones” instead of “Johns,” ^as alleged by shipper, plea need not negative fact that freight money to the latter station was paid, a mere evidential fact not pleaded in the complaint.</p> <p>4. Carriers <&wkey;188 — Charges—Shipment oe ■Goods Misdirected.</p> <p>If shipper misdirected his shipment, he is liable for charges of the roads necessary to reship to correct destination.</p> <p>5. Carriers <&wkey;94(5) — Nondelivery of Goods — Incorrect Marking — Question for Jury.</p> <p>In action against carrier for nondelivery of goods, evidence having tendency to show that incorrect destination was defendant’s fault, or that agent knew of destination intended, held sufficient to take case to jury.</p> <p>6. Carriers <&wkey;89 — Delivery of Goods Shipped — Notice to Consignee.</p> <p>When a railroad company receives goods for transportation, safely carries them to their destination, informs the consignee of their arrival, and affords him reasonable opportunity to remove, its obligations as a common carrier are at an end.</p> <p>7. Carriers <&wkey;174 — Misdelivery — Recovery prom Connecting Carrier.</p> <p>Where initial carrier under through bill of lading to Johns, a station on the L. road, all charges paid, delivers goods to the S. road for delivery at Jones, and S. road under new bill of lading delivers to L. road for shipment to Johns, goods could be recovered from L. road in trover or detinue.</p> <p>8. Carriers <&wkey;183~ Nondelivery— Connecting Carriers — Joint Cause op Action. '</p> <p>An initial carrier liable to shipper for misdelivery and connecting carrier liable to shipper in trover or detinue for the goods could not be sued jointly in an action on the case.</p>

C. B. Gwin, Judge. Action by Jesse Johnson against the Alabama Great Southern Railroad Company and the Louisville & Nashville Railroad Company. From a judgment in favor of the Alabama Great Southern and judgment setting aside verdict for the Louisville & Nashville, plaintiff appealed to Court of Appeals. Cause transferred to Supreme Court under section 6, Acts 1911, p. 449.

I’. Almon, Judge. Bill by the City of Florence against Fannie Ragsdale, to enforce a lien for street irnprovements. Judgment for plaintiff, and defendant appeals.

A. Pearce, Judge. Suit by M. J. Surles against Lula Pilcher and others, for the cancellation of a deed. Prom a decree 'for complainant, respondents appeal. Complainant, appellee here, filed this bill against her three sisters seeking the cancellation of conveyances of certain real estate executed by her on January 19, 1914, to each of them respectively.

<p>Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.</p> <p>Action by C. Scheussler & Sons against Lon Heard. Judgment for defendant, and plaintiffs appeal. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.</p>

<p>Appeal from Circuit Court, Walker County; T. L. Sowell, Judge.</p> <p>Action by Pat Callahan against the Corona Coal & Iron Company. Judgment for plaintiff, and defendant appeals.</p>

Miller, Judge. Detinue by Judge Barrow against D. S. Brent. Judgment for defendant, and from a denial of a new trial, plaintiff appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts 1911. Plaintiff, appellant here, brought suit in detinue against the appellee (defendant) for “one red sandy sow about three years old.” The cause was tried before the court without a jury, resulting in a judgment for the defendant.

W. Haralson, Judge. Action by J. H. Holder, as administrator of the estate of C. M. Coffer, against John J. Williams. Judgment for plaintiff. Motion by plaintiff to correct a distribution of a fund which had been paid into court by defendant. From an order of the court directing the clerk to pay over to plaintiff the sum deposited, the defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

W. Haralson, Judge. Suit by James W. Baker, trustee, against James L. Sparks and others. Judgment for plaintiff against named defendant and in favor of other defendants, and plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

<p>1. Ejectment <&wkey;95(2) — Pbima Facie Case— Title.</p> <p>In a statutory action in the nature of ejectment, plaintiff’s proof of prior possession in a third person, and conveyance by such third person through mortgages and foreclosure deeds, passing whatever title he had, made out a prima facie case.</p> <p>2. Evidence <&wkey;340(3) — Transcbipt of Tax Colleotoe’s Docket.</p> <p>In a statutory action in the nature of ejectment, defendant relying solely on a tax title based on assessment of an unknown owner, defendant’s offered certified transcript from the probate court of a county of the tax collector’s docket as to delinquent taxes assessed to owners unknown was inadmissible, where it did not conform with the requirements of the statutes.</p> <p>3. Appeal and Eebob &wkey;>1056(2) — Habmless Ebbob — Evidence.</p> <p>In ejectment, defendant relying solely on a tax title based on assessment of unknown owner, where defendant’s offered certified transcript from the probate office of a county of the tax collector’s docket as to delinquent taxes assessed to owners unknown was properly excluded, the exclusion of instruments, orders of sale, and deeds, made thereunder to pass title to defendant or those through whom he claimed title, was harmless.</p> <p>4. Judgment <&wkey;883(3) — Set-Off of Judgments — Statute.</p> <p>Under Code 1907, § 5861, judgments, one for plaintiff in a statutory action in the nature of ejectment, and the others against him in the same''action, on ihotion were properly' set off one against the other pro tanto in so far only as they were for the payment of money.</p>

Action by the Montgomery Bank & Trust Company against J. W. Kelly as indorser of certain notes. Judgment for defendant, and plaintiff appeals.

<p>1. Executors and Administrators <&wkey;19— Relinquishment of Widow’s Preferential Right to Administer.</p> <p>Where a widow did not apply for letters of administration on the estate of her husband for more than 40 days after his death, under Code 1907, § 2522, she relinquished her preferential right under section 2520 to be appointed.</p> <p>2. Executors and Administrators <&wkey;30— Conditional Order of Appointment-Failure to File Bond — New Appointment.</p> <p>Where probate court, on widow’s petition for letters of administration, ordered that it be granted provided that she first file bond, after a reasonable time without compliance by her with such requirement, the probate court had a right to disregard and set aside the order and to appoint decedent’s son as administrator.</p>

<p>Appeal from Circuit Court, Etowah' County ; J. E. Blackwood, Judge.</p> <p>Action by Laura Perry against the Southern Express Company. Judgment for defendant, and plaintiff appeals.</p>

C. Crow, Judge. Action by John B. Waterman against the Age-Herald Publishing Company for damages for libel. Judgment for plaintiff, and defendant appeals. For former report of this case, see Age-Herald Co. v. Waterman, 188 Ala. 272, 66 South. 6, Ann. Cas. 1916E, 900.

<p>1. RArLBOADS <&wkey;350(33) — Crossing Accident — Contributory Negligence — Question for Jury.</p> <p>Where there was evidence that one injured at a much-used street crossing was negligent in failing to stop, look, and listen, and that the train was running 40 miles per hour, though the character of the crossing was known to the engineer, the question as-to subsequent negligence was properly submitted to the jury.</p> <p>2. Railroads <&wkey;350(34) — Personal Injury Actions — Questions oe Fact — Wantonness.</p> <p>In an action for injuries to a pedestrian, struck by a train at a street crossing, evidence that defendant’s engineer operated the train at the rate of 40 miles an hour, knowing that the crossing was constantly used by the public, justifies a submission of the question of wanton negligence to the jury.</p>

W. Haralson, Judge. Bill by Charles E. White against E. E. Eddy to foreclose a mortgage. From a decree sustaining demurrers to the bill, complainant appeals. Bill was filed November 15, 1917, to foreclose a certain mortgage on land executed by respondent and his wife on December 3, 1912, to secure six promissory notes of even date and maturing, respectively, on November 1, 1913, and- annually thereafter.

J. Curtis, Judge. Action by Clarence Taylor, by next friend, against the Birmingham Fuel Company, fox-damages'for injuries received while in its employ. Judgment for plaintiff, and defendant appeals. Plaintiff was injured while serving as a driver in defendant’s mine.

W. Haralson, Judge. Bill by E. W. Benefield against M. G. Cox and others, to require the affirmance or disaffirmance in a foreclosure sale and for a receiver. Upon decree annulling the receivership, complainant appeals.

<p>1. Assumpsit, Action of <&wkey;19 — Account— Sufficiency.</p> <p>A count, in an action in assumpsit practically in Code form, alleging that the amount due was by an account between plaintiff and defendant, is sufficient without more.</p> <p>2. Trial <&wkey;214 — Instructions — Unc.on-TRADICTED FACTS.</p> <p>In an action in assumpsit, it was reversible error to refuse defendant’s request to charge that the agent, who, according to plaintiff’s claim, had canceled the contract sued on, had no authority to do so; evidence of want of authority being uncontradicted.</p> <p>3. Principal and Agent &wkey;>101(l) — Power to Cancel Contracts.</p> <p>That one acts as an agent for his principal in making a contract carries with it no power subsequently to cancel or annul it, the making of the contract being in itself a complete transaction.</p>

<p>1. Appeal and Ereos <&wkey;1048 (3) — Review —Harmless Error.</p> <p>That evidence was unfairly and illegally elicited by leading questions is not prejudicial error, where it did not affect the issues on ■which decree was rendered.</p> <p>2. Pleading <&wkey;12 — Sufficiency of Answer — Pacts Peculiarly Within Plead- or’s Knowledge.</p> <p>Where a seller was to be paid by giving him a share in a certain mortgage held by the buyer upon the former’s making a certain deposit, it cannot be urged in an action by the seller that defendant’s answers were insufficient in that his denial was merely general as to complainant’s making the deposit; complainant’s failure in that respect being within the particular knowledge of complainant himself.</p>

<p>1. Trial <&wkey;ll(2)- — Transfer op Law Case to Equity — Proper Procedure.</p> <p>Where a defendant at law procures a transfer of bis case to the equity side of the court pursuant to Gen. Acts 1915, pp. 830-832, in order to make equitable defense available, the appropriate procedure would have been for claimant to file a new or amended complaint in conformity with the chancery practice, and for defendant to present his plea and answer as in chancery.</p> <p>2. Appeal and Error &wkey;>1046(l) — Harmless Error — Procedure on Transfer of Cause to Equity.</p> <p>Where defendant procured transfer of law case to equity side of court under Gen. Acts 1915, pp. 830-832, court’s action in requiring defendants to become complainants on the equity side was not prejudicial to defendants, where the burden of allegation and proof was the same as it would have been under a plea or answer to plaintiff’s complaint made in conformity with chancery practice.</p> <p>3. Appeal and Error &wkey;>1040(3) — Review-Harmless Error.</p> <p>Court’s action in sustaining demurrer to bill was harmless, where new allegations in amended bill were not material to the result or prejudicial to complainant’s burden of proof.</p> <p>4. Equity <&wkey;195 — Cross-Bill — Defensive Matter — Fraud.</p> <p>Where bill sots up equitable title to land because of mistake of description in deed, cross-bill may impeach deed as fraudulent; such fraud being set up for defensive purposes only.</p> <p>5. Equity <&wkey; 195Cross-Bill— Defensive Matter — Fraud.</p> <p>When equity court has jurisdiction in a cause, it will entertain any defense which defeats the equity of complainant, whether such defense be legal or equitable, and it is not necessary that matters set up by a cross-bill in defense only to the original bill should be of equitable cognizance, as distinguished from legal demands.</p> <p>6. Equity <&wkey;195 — Cross-Bill—Cancellation of Deed.-</p> <p>Where a bill sets up equitable title because of mistake of description in deed executed to complainants, cross-bill may seek cancellation of the deed on ground of fraud.</p>

Pugh, Judge. Action by S. Penticost, as administrator, against Richard W. Massey. From a judgment granting a new trial after verdict for plaintiff, plaintiff appeals.

<p>Petition by S. Penticost, as administrator, for mandamus to Hou. John C. Pugh, Judge of the Tenth Judicial Circuit.</p>

B. Smith, Judge. Action by 6. K. Letson against the Mutual Loan Society, to recover money alleged to have been paid by the plaintiff to the defendant on subscription for stock in the corporation. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

<p>Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.</p> <p>Suit by W. W. Vaughn against S. E. Wootten and others. From interlocutory decree ■overruling defendants’ demurrer, they appeal.</p>

Action by John C. O’-Connell against the National Surety Company on the bond given by one Wilson as principal and said Company as surety. There was a judgment of the Court of Appeals (81 South. 146 *) affirming a judgment, from which the Surety Company had appealed, and the Surety Company brings certiorari.

<p>Appeal from Circuit Court, Washington-County; Ben D. Turner, Judge.</p> <p>Action by the United States Lumber & Cotton Company against F. -W. Cole and wife. Judgment for defendants, and plaintiff appeals.</p>

Kyle, Judge. Bill for specific performance of a contract to convey land by Lawrence W. Norton against James B. Penney and wife. Prom a decree for plaintiff, defendant named appeals. The opinion of the trial court was as follows: This is a bill to enforce the specific performance of an alleged contract for the sale of land. It is filed against Penney and wife. Both respondents separately demur, alleging the insufficiency of the bill, upon many grounds.

B. Foster, Judge. Assumpsit by the Southern Cotton Oil Company against W. M. Knox and W. N. Rushton. Judgment for defendants and plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

Bob Hardeman was convicted of manslaughter in the first degree. The judgment was reversed and the case remanded (81 South. 449) and the State petitions for certiorari.

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

Bob Conner was convicted of keeping beer for unlawful sale, and he appealed. The Court of Appeals affirmed the conviction (16 Ala.App. 452, 78 South. 715), and defendant applies for certiorari.

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

<p>Appeal from Circuit Court, Marion County; C. P. Almon, Judge. J. H.</p>

F. S. Dunlap was convicted of operating a penny-in-the-slot machine without license, and the judgment of conviction was affirmed by the Court of Appeals (16 Ala. App. 440, 78 South. 638), and he brings certiorari.

Petition by Pat Crawley for certiorari to the Court of Appeals to review and revise the judgment of said court in the case of Pat Crawley v. State, 16 Ala. App. 545, 79 South. 804.

<p>Appeal from Circuit Court, Etowah County; J. E. Blackwood, Judge. Suit by J. A. Hopper against Dave Harris and others to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.</p>

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

Action by J. H. Arnold & Co. against Pinckard & Lay. From a judgment for plaintiffs, defendants appealed to the Court of Appeals, which reversed and remanded (16 Ala. App. 590, 80 South. 164) on rehearing, and Pinckard & Lay apply for certiorari to review and revise this judgment.

<p>Appeal from Circuit Court, Montgomery County, in Equity; Leon McCord, Judge.</p>

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

<p>Certiorari to1 Court of Appeals. Petition for certiorari by J. F. Rhodes.</p>

<p>Certiorari to Court of Appeals. J. Q. Smith, Atty. Gen., and Horace</p>

<p>Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge. Action by Algernon L. Smith against Mrs. Laura K. Brightman. From an adverse judgment, Algernon L. Smith appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.</p>