Volume 203 — Alabama Reports

Miller, Judge. Action by M. A. Fayet against the St Louis & San Francisco Railroad Company and others for injuries in a crossing accident. Judgment for defendants, and plaintiff appeals.

<p>1. Equity &wkey;>148(3) — Cancellation op Mortgage — Assignment for Benefit of Creditors — Pleading.</p> <p>A creditor in a single bill may pray for a cancellation of a mortgage as being made to hinder, delay, or defraud creditors under Code 1907, § 4293, and, in the alternative, that the mortgage be declared a general assignment in virtue of section 4295.</p> <p>2. Fraudulent Conveyances <&wkey;88 —Voluntary Conveyance.</p> <p>Where bank purchased its debtor’s mortgage to another, and the debtor, to secure his prior indebtedness to the bank as well as such mortgage indebtedness purchased by it, subsequently executed mortgage to the bank covering other land in addition to the previously mortgaged land, the effort of the debtor to convey the additional realty to the bank was without effect, being-"a voluntary conveyance so far as his existing creditors were concerned.</p> <p>3. Fraudulent Conveyances <&wkey;301(l) — Intent to Hinder Creditors — Sufficiency of Evidence.</p> <p>The mere fact that a creditor, to whom a debtor voluntarily executed a mortgage to secure the amount owing to him, knew that the debtor tyas unable to satisfy in money his liabilities was insufficient to establish a purpose on the part of the creditor to hinder, delay, or defraud other creditors under Code 1907, § 4293.</p> <p>4. Assignments for Benefit of Creditors <@=14(1) — General Assignments.</p> <p>Where a debtor unable to pay all his liabilities gave a mortgage on all of his property to a creditor, except his homestead, “which was not subjected to his debts,” to secure indebtedness to such creditor, the mortgage will be held a general assignment under Code 1907, § 4295, inuring to the equal benefit of all creditors.</p> <p>5. Assignments for Benefit of Creditors <&wkey;14(l) — General Assignments — Partial Release — Effect.</p> <p>Where a debtor unable to pay all his liabilities executed a mortgage to a creditor on all his property to secure his indebtedness to such creditor, the mortgage was a general assignment under Code 1907, § 4295, and the rights of all other creditors became fixed, and were not affected by a subsequent release of a part of the property, although the property released had been included in the mortgage through mistake.</p> <p>6. Abatement and Revival <&wkey;43 — Bankruptcy — Creditor’s Suit.</p> <p>A bankruptcy proceeding, instituted and consummated while an action to have a mortgage declared a general assignment under Code 1907, § 4295, was pending, did not abate the action; the pendency of the action having imposed a lien upon the property of the debtor.</p>

Bill by D. F. Green, as Superintendent of Banks, against W. R. Lowery and wife. From a decree overruling a demurrer to the bill, defendants appeal. The affairs of the Union State Bank, a corporation in Chilton county, Ala., are in the hands of the superintendent of banks of this state for liquidation, as provided by statute, and the court has taken jurisdiction of the administration of said trust.

W. Pearson, Judge. Action by Charles Alexander and others • against McQueen Smith and others to recover a penalty. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from Circuit Court, Calhoun County ; Hugh D. Merrill, Judge.</p> <p>Action by John F. Williams against R. L. Formby. Judgment for plaintiff, and defendant appeals.</p>

<p>Master and Servant &wkey;?139 — Injuries to Servant — Negligence oe Master — Proximate Cause.</p> <p>Where as directed by his superior to whose order he was bound to conform (Code 1907, § 3910, subd. 3) an electrician’s helper in a mine alighted from a moving coal car, and while walking beside it was thrown beneath the car by the body of his superior, who attempted to alight, but was carried along with the car because a bolt caught in his clothing, the order to alight was not the proximate cause of the injury.</p>

Leigh, Jr., Judge. Bill by Samuel Zimmern against tbe People's Bank of Mobile and others. Prom a judgment denying relief on the amended original bill and awarding relief to tbe cross-complainants, complainant appeals.

<p>1. Master and Servant &wkey;>286(15) — Jury Question — Switch Stand.</p> <p>Conflicting evidence held to make a jury question whether switch stand which injured plaintiff, a switchman, was placed too near track.</p> <p>2. Master and Servant <&wkey;286(25) — Personal Injury Action — Jury Question.</p> <p>Evidence held to make jury question whether switch stand which injured plaintiff, a switch-man, had been bent long enough to charge defendant with notice of defect.</p> <p>3. Master and Servant <&wkey;289(21) — Personal Injury Action — Jury Question.</p> <p>Evidence held to make jury question whether railroad switchman injured by a bent switch stand near track was guilty of contributory negligence.</p> <p>4. Master and Servant <&wkey;288(12) — Personal Injuries — Jury Question.</p> <p>Evidence held to make jury question whether a switchman, who was injured by a bent switch stand near track, assumed risk of such injury.</p> <p>5. Trial <&wkey;253(9) — Instructions Ignoring Evidence.</p> <p>Requested charges ignoring the defective condition of a switch stand which injured plaintiff, a switchman, yrere properly refused.</p>

<p>1. Jury &wkey;>13(ll) — Mechanics’ Liens — Jury Trial.</p> <p>In a suit in equity to enforce a mechanic’s lien on real property subject to mortgage, the mortgagee may not demand as a matter of right under Code 1907, § 3201, a jury trial of questions of fact involved.</p> <p>2. Trial <&wkey;ll(l) — Improper Docketing — Statutes.</p> <p>Act Sept. 28, 1915 (Laws 1915, p. 830), regulating the disposition' of cases improperly brought as suits in equity, and the disposition of suits at law when an equitable question arises, was enacted for the purpose of avoiding the bEff of limitations by improper filing or docketing of a cause.</p> <p>3. Limitation oe Actions <&wkey;120 — 1Transfer of Causes — Want of Jurisdiction.</p> <p>Where a suit to enforce a mechanic’s lien is properly brought in the circuit court and duly transferred by order of the court to the equity docket, the bar of the statute of limitations is avoided, though the original bill was not filed in the equity division of the circuit court within the six months’ period after the maturity of the indebtedness, as required by Code 1907, § 4777.</p> <p>4. Mechanics’ Liens <&wkey;271(15), 277(2) — Pleading and Proof — Filing of Statement oe Lien.</p> <p>In a suit to enforce a mechanic’s lien against property subject to mortgage, filing of the written statement required by Code 1907, § 4758, must be averred and proved.</p>

<p>1. Afpeal and Error <&wkey;737 — Assignment oe Errors — Including Errors in One Assignment-Pleadings.</p> <p>Conjunction of three rulings on demurrers in a single assignment of error renders the whole assignment bad.</p> <p>2. Corporations <&wkey;308(l) — Advances by Ageno^-Recovery.</p> <p>Where plaintiff, employed by a parent piano company t,o organize subsidiary company on agreement that expenses should be repaid, secured the money to cover such expenses from another subsidiary company having no authority to pay, parent company is liable to plaintiff for the expenses, though plaintiff repaid the money secured to parent company on its promise to apply it for benefit of subsidiary company paying it.</p> <p>3. Accord and Satisfaction <&wkey;2(2) —Construction — Indebtedness Covered.</p> <p>A written proposal made by plaintiff as to settlement of indebtedness owing by him to defendant and return of collateral securing it, and a written acceptance by defendant, held not to include a settlement of plaintiff’s separate claim sued on in the present action.</p> <p>4. Trial i&wkey;251(4) — Instructions—Refusal of Requests.</p> <p>Requested instruction that “there can be no recovery in this case on an implied contract” was properly refused, where the complaint did not declare on an implied contract, but only upon an express one.</p> <p>5. Interest <&wkey;28 — Rate—What Law Governs.</p> <p>The rate of interest to be allowed on a claim for expenses in organizing a subsidiary piano company in Alabama would be 8 per cent., the Alabama rate, where it was contemplated that such expenses would he incurred in Alabama and they were so actually incurred.</p> <p>6. Appeal and Error <&wkey;10.43(6) — Harmless Error — Interrogatories — Exclusion oe Answers.</p> <p>Exclusion' of defendant’s answers to interrogatories, if error, was harmless, where the facts stated could have no possible influence upon determination of the issue.</p> <p>7. Appeal and Error <&wkey;72S(l) — Assignment op Errors — Rulings on Evidence-Broad Application.</p> <p>An assignment of error which recites the overruling of an objection to testimony as to conversation with a witness is too broad to fit a specific objection thereto.</p>

I. Jones, Judge. Wes Johnson was convicted of murder in the first degree, and he appeals. The following charges were refused the defendant: (b) Unless you believe beyond all reasonable doubt that the defendant willfully, deliberately, maliciously, with premeditation, shot Effie Myatt with intent to kill her, you cannot find the defendant guilty of murder in the first degree.

<p>1. Insurance <@^815(1) — Actions on Benefit Certificate — Pleadings—Sufficiency.</p> <p>In an action on a beneficiary certificate, an averment of tbe complaint which was substantially in Code form (Civ. Code, 1907, p. 1196), that defendant insured deceased' “for the term of, to wit, his natural life,” and that insured died on a certain date, was a sufficient allegation that insured died within the life of the policy.</p> <p>2. Pleaoing <&wkey;8(6) — Benefit Certificates — Sufficiency.</p> <p>In an action on a beneficiary insurance certificate, pleas that insured was killed in a foreign state, in consequence of a violation of the laws of such state, were bad as expressing mere conclusions; the foreign law not being substantially stated, nor the facts constituting its I violation averred.</p> <p>3. Insurance <&wkey;687, 711, 815(4) — Actions on Policies — Mutual Benefit Certificates — Variance—“Insurance Companies” —“Policies of Life Insurance.”</p> <p>Eor most purposes, mutual benefit associations are “insurance companies,” and the certificates issued by them are “policies of life insurance,” governed by the rules 'of law applicable to such policies, so that declaring on a policy of insurance and introducing a certificate of a mutual benefit association, did not constitute a variance.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Insurance Company; Policy of Insurance.]</p> <p>4. Insurance <&wkey;646(6) — Action on Policy —Burden of Proof.</p> <p>In an action on an insurance policy, the burden of proving that insured died in consequence of a violation of law is upon the insurer.</p> <p>5. Insurance <&wkey;662(l) — Evidence — Admissibility-Notices and Proofs of Loss.</p> <p>In an action pn an insurance policy, plaintiff is entitled to have the original of all notices and proofs of loss as to the death of insured before the court to show compliance with the conditions of the policy, although such notices and proofs are not,evidence against the company of any fact therein.</p> <p>6. Witnesses <&wkey;205 — Action on Policy-Confidential Communications.</p> <p>Although confidential communications may not be shown in evidence, a letter of the general attorney of a fraternal insurance association to the clerk of the local camp of which insured was a member was admissible in an action on the policy ; it not being confidential and showing on its face that it was intended to be communicated to plaintiff, and presumably had been so communicated.</p> <p>7. Depositions <&wkey;107(l) — Admissibility in Evidence — Time of Objection.</p> <p>It is too late to object to the'admissibility of a deposition after the trial is entered into in view of Code 1907, § 4042.</p> <p>8. Insurance <&wkey;818(4) — Action on Benefit Certificate — Evidence — Admissibility.</p> <p>In an action on benefit certificate, where the plea that deceased was killed while attempting to violate the law of a sister state was interposed, evidence that deceased was a drinking man of an overbearing disposition, or had a bad reputation for peace and quiet, held inadmissible.</p>

<p>Estoppel <&wkey;31 — Mortgage by Devisee Holding in Trust — Knowledge oe Mortgagee.</p> <p>Devisee of land in trust for life of another who mortgages the land to executrix of testatrix is not estopped to deny trust or his own title as remainderman in action by mortgagee to foreclose; both parties being trustees not permitted to impair the trust.</p>

J. Curtis, Judge. Action by Mutie Barton against the Brilliant Coal Company for damages for injuries sustained from the fall of a rock while working in defendant’s coal mine. Judgment for plaintiff, and defendant appeals.

<p>1. Appeal and Error <&wkey;1050(l) — Evidence —Conclusion op Witness — Prejudicial Error.</p> <p>In action for injury sustained by plaintiff pedestrian in collision with defendant’s automobile on a public road, permitting defendant to testify over plaintiff’s objection that he was “very careful” in handling his car on that occasion was error, and the error held prejudicial.</p> <p>2. Evidence <&wkey;471(17) — Conclusion oe ' Witness.</p> <p>In action for injuries sustained by plaintiff pedestrian in collision with defendant’s automobile, answer to question, “If sbe bad stood where she was, and the car bad passed where it did pass, would the car have struck her?” was a conclusion, and inadmissible.</p> <p>3. Trial <&wkey;143 — Apiurmative Charge.</p> <p>The affirmative charge should never be given, where there is material conflict in the evidence.</p>

Appeal froru Circuit Court, Mobile County; Norville R. Leigh, Jr., Judge. . Action by George O. Looker against the Gulf Coast Fair for damages for injuries by the fall of a grand stand. Judgment for defendant, and plaintiff appeals.

<p>1. Specific Performance <&wkey;6S — Enforcement by Vendor.</p> <p>The remedy of specific performance is available to a vendor of land.</p> <p>2. Specieio Performance <&wkey;127(l) —Decree.</p> <p>An appropriate decree may enter requiring specific performance on the part of a vendee by a fixed time after vendor has deposited conveyance, and in case of failure of vendee it may thereupon be contingently decreed that the land be sold to satisfy vendor’s demand and that execution issue against vendee to enforce payment of unpaid balance of purchase price and interest that the net proceeds of the sale fails to satisfy.</p>

Suit by Eunice H. Mayfield against Marie B, Cook and others. From decree for respondents, complainant appeals. For the former appeal in this cause, considering the ruling on demurrer to the original bill, see Mayfield .v. Cook, 77 South. 713,1 where the substance of the original bill is set out in the statement of the case.

Brickell, Judge. Petition for prohibition by James A. Anders and others against W. B. Lindsey, as Judge, and others. From judgment for defendants, plaintiffs appeal.

<p>1. Partnership &wkey;>327(l) — Suit for Settlement of Affairs of Ftrm — Pleading.</p> <p>Bill having for its primary object the settlement of the affairs of partnership existing between complainant and a respondent held sufficient for such purpose.</p> <p>2. Equity <&wkey; 150 (1) — Parties — Mulohfaeiousness.</p> <p>It is not necessary to a bill in equity that all the parties should have an interest in all the matters in controversy; but it is sufficient if each defendant has an interest in some of the matters involved, and they are connected with the others.</p> <p>3. Equity <&wkey;150 (1) — Bili>-Paeties — Multifariousness — 0 bjection .</p> <p>A respondent to a bill in equity cannot object that the bill is multifarious, in that another respondent is not a proper party thereto, where he will not be affected thereby.</p> <p>4. Equity &wkey;>119 — Nonresident Defendant —Service by Publication.</p> <p>In suit for settlement of the affairs of a partnership, where relief sought against nonresident respondent upon whom no personal service had been made was by way of injunction and accounting, his plea to the' jurisdiction should have been sustained; the suit not coming within Code 1907, § 3054, subd. 2, relating to chancery jurisdiction of nonresidents in certain suits.</p>

Pugh, Judge. Action by Ethel Bates against the Birmingham -Railway, Light & Power Company for assault and battery and for trespass on plaintiff’s person. From judgment for defendant, plaintiff appeals. Count 1 claims damages for an assault and battery committed on plaintiff by a servant or agent of the defendant while acting within the line and scope of his employment.

<p>Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.</p> <p>Action by the Decatur Drug Company against E. H. Price and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Intoxicating Liquors i&wkey;327(l) — Agreement Made in Furtherance of Illegal Business.</p> <p>The invalidating effect of Laws 1911, p. 266, § 28, prohibiting one engaged in the manufacture or sale of intoxicants from conducting business for the retail of such liquors, cannot be visited upon an agreement not made for the purpose of conducting a retail liquor business, either in the name of the manufacturer or wholesaler or in the name of another.</p> <p>2. Intoxicating Liquors &wkey;327(l) — Contracts — Carrying on Retail Business in Name of Another.</p> <p>The mere fact that a manufacturer or wholesaler furnishes to a retailer mon'ey and fixtures for the purpose of enabling the retailer himself to conduct a retail liquor business, does not violate Laws 1911, p. 266, § 28.</p>

<p>1. Railroads <&wkey;400(14) — Injury to Person on Track — Question for Jury.</p> <p>Whether engineer or firemen or both saw plaintiff’s intestate on the track, and after discovery of his perilous position whether they used all means and appliances known to prudent and skillful agents to avoid the injury, held, under the evidence, for the jury.</p> <p>2. Railroads <&wkey;400(10) — (Injury to Person on Track — Contributory Negligence —Question eor Jury.</p> <p>Affirmative charge based on theory that contributory negligence of plaintiff’s intestate, killed by a train while walking on the track of defendant railroad, continued until the moment of his death, and was subsequent to any negligence on the part of defendant’s agents or servants, held properly refused.</p> <p>3. Railroads <&wkey;390 — Injury to Person on Track — Contributory Negligence Barring Recovery.</p> <p>Contributory negligence of plaintiff’s intestate, killed by a train while walking on track, to defeat recovery for subsequent negligence on the part of defendant must have been the negligent act or omission of intestate, with knowledge on his part of the then present and impending peril.</p> <p>4. Railroads <&wkey;400(10) — Injury to Person on Track — Contributory Negligence-Questions eor Jury.</p> <p>Theory that plaintiff’s intestate, killed by a train while walking on the track of defendant railroad, walked down the track when he knew a train was scheduled to approach at or about the time of the accident, held not established by the undisputed evidence so as to entitle defendant to an affirmative charge.</p> <p>5. Evidence >&wkey;471(10) — Eyewitness—Ability to See.</p> <p>Testimony of a witness who saw the accident that he measured on the track from a point down the track in the direction from which the train was moving and from which point he could see the place where intestate was killed, and that the distance between the two points was 17 rail lengths, was competent.</p> <p>6. Evidence c&wkey;514(3) — Opinion Evidence-Admissibility.</p> <p>Witness, an engineer, who qualified himself as an expert, and who had examined the track and was shown the point at which intestate was killed, was properly permitted to testify as to whether engineer could have materially reduced the speed of the train in a distance of 15 rail lengths.</p>

<p>Appeal from Circuit Court, Lamar County; A. H. Alston, Judge.</p> <p>Action by Rafe Jones against the Ripley Stave Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1.' Executors and Administrators <&wkey;472— Order Citing to Final Settlement — Appeal.</p> <p>Order citing an administrator to a final settlement of his account supports his appeal.</p> <p>2. Executors and Administrators <&wkey;224— Final Settlement — Effect on Mortgage —Filing of Claim to Preserve Debt.</p> <p>A mortgage is not affected by any settlement of the administrator made in probate court in advance of its due date, but in order to preserve the debt as a charge against the intestate’s general estate,’ filing of claim is necessary under Code 1907, §§ 2590, 2593.</p> <p>3. Executors and Administrators <&wkey;459— Final Settlemeni>-Time — Effect of Unverified Claim.</p> <p>Twelve months having elapsed since the granting of letters of administration, and the estate of the intestate being ready for final settlement in all other respects, an outstanding claim not verified as required and brought forward by the administrator furnished no sufficient reason for delay.</p> <p>4. Executors and Administrators <&wkey;224rPresentation of Unmatured Claims.</p> <p>A claim against the estate of an intestate may fall within the operation of the statute of nonclaim (Code 1907, § 2589), though the right of action thereon has not accrued; it being enough that the daim, the right to- demand in the future, exists; contingent claims alone falling within the provision postponing the presentation of claims accruing after the grant of letters.</p>

Merrill, Judge. Bill by G. S. Gilliland and others as partners doing business under the business name of the Gilliland Mercantile Company against A. C. Sinclair and others to foreclose a mortgage. From the decree rendered, the complainant appeals.

<p>Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.</p> <p>Action by Mrs. C. W. Anderson against W. A. Bellingratb. Prom a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.</p>

<p>1. Interest &wkey;>l — Definition.</p> <p>In view of Code 1907, § 4623, “interest” is compensation paid for the future use of money or other thing upon which interest may be charged.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interest.]</p> <p>2. Usury <&wkey;68 — Excessive Charges — Construction of Contract.</p> <p>Where creditor executes note for balance due on open account, intending to bind himself to pay excessive interest charges, the contract entered into is one for past use of money or credit, and not a contract to pay interest in any proper or legal sense.</p> <p>3.Usury <&wkey;67 — Open Account — Note for Balance — Consideration.</p> <p>Where interest was charged at usurious rate in carrying over annual balance on open account to succeeding year, a note for balance due on the account bearing lawful rate is void for want of consideration to the extent that it covers unlawful interest, but is good as to the remainder of the indebtedness, and payee can recover amount due, with interest.</p>

<p>1. Railboads &wkey;344(3) — Injury at Crossing — Duty to Repair — “Control”—‘“Management.”</p> <p>The alternative averment that defendant railroad “owns, operates, or controls” the track to whose defective condition at a crossing plaintiff’s injury was attributed is sufficient to show defendant’s relation to the track, imposing the duty to keep the crossing in repair; “control” being a synonym of “management.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Control; Management.]</p> <p>2. Railroads &wkey;350(3,13) — Injury at Crossing — Negligence and Contributory Negligence — Questions for Jury.</p> <p>In an action for injuries to one thrown from an automobile at a railroad crossing in a defective condition, questions of negligence and contributory negligence held for the jury.</p> <p>3. Damages <&wkey;173(l) — Personal Injuries — Disability and Earning Capacity — Evidence.</p> <p>Though the amount of plaintiff’s earnings per day is no criterion for the measurement of his damage by reason of permanent disability or diminished earning capacity, it is proper to be considered by the jury in such connection.</p> <p>4. Damages &wkey;>172(l) — Personal Injury —Time Lost prom Employment — Evidence.</p> <p>On the question of damage by reason of time lost from his employment, the amount of plaintiff’s earnings just before his injury was relevant, though plaintiff had been at work but five days when injured.</p>

O. B. Gwin, Judge. Contest of the will of her deceased ex-husband by Margie L. Byars, guardian, etc., against Nannie Smith, executrix, etc. From decree sustaining the will, contestant appeals.

C. B. Gwin, Judge. Action by Leo Jones and others against the Woodward Iron Company. From a judgment in their favor for $1, plaintiffs appeal. Transferred from Court of Appeals under section 6, p. 450, Acts 1911.

Merrill, Judge. Action by J. C. Street against S. D. Tread-well and others. Judgment for defendants, and plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

<p>Appeal from Circuit Court, Jefferson County ; C. W. Ferguson, Judge.</p> <p>Action by Henry Smith against the Alabama Fuel & Iron Company. From judgment for plaintiff, defendant appeals.</p>

Locke, Judge. Suit by Martha C. Wynn against Walter Hoffman and others, which, on death of complainant, was revived in the name of her administrator ad litem and heirs at law. From decree dismissing the cause, complainants appeal.

<p>1. Appeal and Error <&wkey;>1008(l) — Review-Findings op Fact.</p> <p>Where the evidence in proceedings to compel settlement and distribution by an administrator, petitioner’s legitimacy being in issue, is taken ore tenns, the court’s conclusion that petitioner was illegitimate is to be treated on review like the verdict of a jury on a like issue.</p> <p>2. Marriage <&wkey;48 — Evidence Admissible-Reputation.</p> <p>In a proceeding to compel an administrator to settle and distribute the estate, wherein petitioner’s legitimacy was in issue, a question whether witness heard that at one time petitioner’s mother “was being married” to deceased was properly excluded, as not being within the rule permitting evidence of reputation consequent upon cohabitation as husband and wife.</p>

<p>Appeal from Circuit Court, Shelby County; Lum Duke, Judge.</p> <p>Action by W. J. Bean against the Shelby Iron Company. From judgment for plaintiff, defendant appealed to Court of Appeals. Transferred from Court of Appeals under section 6, Act April 18, 1911, p. 449.</p>

<p>1. Electricity <&wkey;19(2) — Injury Incident to Use — Negligence—Pleading.</p> <p>A count of plaintiff’s complaint against an electric power company, the gravamen of which was the negligent burning of plaintiff’s telephone exchange by causing or allowing a current of electricity to come in contact with a telephone wire and be transmitted into the building and switchboard, held broad enough to cover a negligent overcharge of the wire, or a failure to use means or appliances to prevent a contact or injurious results.</p> <p>2. Electricity @=>19(9) — Eire Caused by Use — Negligence — Sufficiency of Evidence.</p> <p>Evidence in action for negligent burning by electric power company of a telephone exchange, through electricity ' coming in contact with telephone wire held sufficient to go to jury, without resort to doctrine of res ipsa loquitur, and to amount to more than mere conjecture or speculation.</p> <p>3. Appeal and Error @=>1040(4) — Harmless Error — Ruling on Pleading.</p> <p>Plaintiffs having under one count of the complaint, broad enough to cover the other count, got the full benefit of the other counts, sustaining demurrer to the others was harmless.</p> <p>4. Electricity @=>19(4) — Fires—Negligence —Evidence.</p> <p>Plaintiffs, claiming negligent burning of their building by.an electric current of defendant power company, were entitled to show that at the time' there existed appliances that would prevent electricity from getting off the wire • and burning up buildings.</p> <p>5. Electricity @=>19(4) — Causing Fire — Evidence — Changes and Improvements After Accident.</p> <p>Plaintiffs may not show changes and improvements in the ways and works of defendant electric power company after the burning of plaintiffs’ building, charged to have been caused by defendant negligently allowing a current to come in contact with a telephone wire.</p> <p>Count A:</p> <p>The plaintiffs claim of the defendant the sum of $5,000 damages for that, whereas, on or about, to wit, May 28, 1914, the plaintiffs owned a building at Helena, Ala., in which was operated a telephone exchange owned by the plaintiffs, and. there was in said building a large number of telephones, office furniture, and fixtures stored, and in connection with said telephone business plaintiffs had in said building a telephone switchboard and all appliances and apparatus necessary to operate the same, together with telephone wires, telephone attachments and equipments, and. $86.60 in cash in said building. Plaintiffs • aver that on said date and for a long time prior thereto the defendant, for its own private use, had a telephone wire run into said building and connected with plaintiff’s switchboard, which was run into said building by the' defendant by the consent of these plaintiffs and connected with said switchboard. Said telephone wire which the defendant had run into said building and connected with said switchboard extended to lock 12 on the Coosa river, where the defendant had a power plant, and the defendant had also constituted a line of wires to transmit electric current from lock 12 to Birmingham and to other points, and said telephone wire was constructed by the defendant parallel with and near to said wires over which electric current was transmitted which the defendant generated at lock 12 on the Coosa river by water power. And plaintiffs aver that on said date the' defendant negligently caused or allowed a current of electricity to come in contact with said telephone wire and be transmitted into said telephone house' and switchboard owned by plaintiffs as aforesaid, causing the same to be set on fire and said house, switchboard, telephone appliances and apparatus, as well as a great number of telephones in said house, and all the contents of said house to be destroyed by fire. Plaintiffs aver that the electric current that came in contact with said telephone wire causing said building to be set on fire as aforesaid was generated or caused to be generated by the defendant at lock 12 on the Coosa river, and transmitted or caused to be transmitted by the defendant over said transmission wires between lock 12 and Birmingham.</p>

<p>1. Master and Servant <&wkey;204(l) — Employers’ Liability Act — Assumption op Risk.</p> <p>Under the Employers’ Liability Act, in no event shall an injured servant be held to have assumed the risk by remaining in the service after knowledge of defect in the ways, works, machinery, etc., unless it was Ms duty to remedy the defect.</p> <p>2. Master and Servant t&wkey;265(14) — Employers’ Liability Act — Contributory Negligence — Burden oe Prooe.</p> <p>In an action by a servant under the Employers’ Liability Act, for injuries, the burden of proof on the issue of contributory negligence is on the employer.</p> <p>3. Master and Servant <&wkey;228(l) — Employers’ Liability Act — Consent to Injury.</p> <p>The provision of the Employers’ Liability Act, that a servant is not guilty of contributory negligence who merely remains in service with knowledge of defect does not abolish the defense of contributory negligence based on other acts or omissions, nor the doctrine of volenti non fit injuria.</p> <p>4. Trial <&wkey;260(l) — Instruction — RepetíTION.</p> <p>The refusal of a requested instruction almost a duplicate of one given was not error.</p> <p>Anderson, O. J., and McClellan and Sayre, JJ., dissenting.</p>

P. Almon, Judge. Action by James H. Mixon against W. T. Burleson for breach of covenant. Judgment for defendant, and plaintiff appeals. The grantor covenanted that be was lawfully seized in fee simple of the premises ' conveyed, that they were free from incum-.' brance, and that be bad a good right to sell same to plaintiff tbe grantee. Tbe cause was tried by tbe court without a jury on tbe complaint and a general traverse.

Action by Bill Johnson against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals.

<p>Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.</p> <p>Bill by Julia Q. Thompson against J. Virgil Smith. Decree for complainant, and defendant appeals.</p>

Suit by Harry Scheuer against S. D. Dantzler. From judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

<p>Appeal from Circuit Court, Calhoun County ; Hugh D. Merrill, Judge.</p> <p>Proceedings by the State- against Arthur J. Hughes and others to condemn a mule, a buggy, and a harness which were being used in the transportation of intoxicating liquors in violation of the Bone Dry Law. Judgment for defendants, and the State appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.</p> <p>Action by T. L. Finney against the American Bottling Company. Judgment for plaintiff, and defendant appealed. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.</p>

<p>1. Mechanics’ Liens i&wkey;135, 263(6) — State- ■ ment — Parties — Enforcement of Lien-Other Incumbrancers.</p> <p>Code 1907, § 4755, relating to priority of mechanics’ and materialmen’s liens as to other liens, mortgages,, or incumbrances, does not require mortgagees, incumbrancers, or other lienors to be named in lien statement filed under section 4758, or that they be made parties to proceeding to enforce the lien.</p> <p>2. Mechanics’ Liens <&wkey;136(6) — Statement —Description.</p> <p>Description of lot upon which improvement was placed was a sufficient description of the building or improvement in. statement of materialmen’s lien under Code 1907, § 4758, even though lien was upon building only.</p> <p>3. Mortgages <&wkey;151(3) — Foreclosure of Mortgage — Lienor’s Rights as to Purchaser.</p> <p>Materialmen’s lien on mortgaged premises was not affected by subsequent foreclosure of mortgage where purchaser took with notice of and subject to materialman’s rights.</p> <p>4. Mortgages <&wkey;151(3) — Mechanics’ Liens —Priority as to Mortgage Sale Purchase — Rights as to Building.</p> <p>Where materialmen having liens for material used in construction of buildings upon mortgaged lots foreclosed liens without making mortgagee a party to the proceeding, and purchased the property at the sale, they acquired title to the buildings as against mortgagee purchaser at mortgage foreclosure sale, and will be permitted, by equity, to remove buildings upon mortgagee’s failure to pay amount of liens within a reasonable time.</p> <p>5. Mechanics’ Liens <&wkey;260(2) — Foreclosure-Sale — Mortgage Foreclosure — Rights as to Building — Limitations.</p> <p>Where materialmen, having lien for materials used in construction of buildings on mortgaged lots, foreclosed liens and purchased property, their bill against mortgagee, ■which had purchased the property at mortgage foreclosure sale, seeking decree of priority and right to remove buildings on the land upon mortgagee’s failure to pay amount of liens, was not required under Code 1907, § 4777, to be filed within six months of the maturity of the indebtedness.</p>

Robert Thomas was convicted of violating an ordinance prohibiting traffic in forbidden liquors, and he appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

Merrill, Judge. Bill by Anne D. Street against the Alexander City Bank to have a deed declared a mortgage and then to have the mortgage declared void as being a mere security for the husband’s debt, or, in the alternative, to have a redemption from the mortgage upon doing equity in the premises. Decree for respondent, and complainant appeals.

<p>Certiorari to Court of Appeals.</p> <p>Ex parte petition by Mrs. R. J. Fowler for certiorari to Court of Appeals. Writ granted.</p>

<p>1. Criminal Law <&wkey;1169(3) — Review — Harmless Error — Evidence.</p> <p>Admission of a confession that defendant shot deceased, if error, is harmless, where the shooting was admitted by defendant on the stand.</p> <p>2. Criminal Law <&wkey;404(4) — Evidence—Admissibility — Clothing Worn by Deceased.</p> <p>In a homicide case wherein defendant was charged with shooting deceased, the clothing worn by deceased at the time he was shot was admissible to show the character of the wounds, position and distance of the' parties, and number of shots fired.</p> <p>3. Criminal Law <&wkey;670 — Evidencie—Materiality and Relevancy.</p> <p>In a homicide case it was not error to exclude a question to defendant’s wife, “I will ask you if, when he [defendant] left home, he told you where he was going;” the materiality or relevancy of the question or its answer not appearing.</p>

<p>1. Waters and Water Courses <&wkey;205 — Public Water Supply — Liability of Water Company — Breach of Contract.</p> <p>A water company, engaged in furnishing water for reward to the public of a city, which, after plaintiff had duly paid its charges for three months, breached its contract by shutting off the water from plaintiff’s residence, was liable in damages.</p> <p>2. Waters and Water Courses &wkey;>209 — Public Water Supply — Wrongful Shutting Off — Damages.</p> <p>In an action against a public water company for wrongfully shutting off water, the inconvenience and annoyance of being deprived of a water supply on the premises formed an item of recoverable damages in connection with proof of pecuniary loss.</p> <p>3. Waters and Water Courses <&wkey;209 — Public Water Supply — Wrongful Shutting Off — Evidence.</p> <p>In an action against a water company for breach of its contract to supply plaintiff’s residence, evidence that after his water was shut off plaintiff procured water from a well a block and a half from his residence, showing how many buckets, or the number of trips he was required to make, was admissible.</p> <p>4. Trial <&wkey;>62(2) — Reception of Evidence —Rebuttal.</p> <p>In an action against a water company for breach of its contract to supply plaintiff’s residence, testimony of plaintiff’s wife in regard to what was said when a witness and employs of the company came to plaintiff’s house held admissible as in rebuttal of what the witness had testified.</p> <p>5. Waters and Water Courses <&wkey;209 — Public Water Supply — Wrongful Cutting Off — Instructions.</p> <p>In an action against a water company for breach of its contract to supply plaintiff’s residence, charges requested by the company that the words used in -the complaint “wrongfully cut the water off” meant more than the mere cutting off of the water, that it was cut off in a wrongful manner, unjustly, contrary to'moral law, held properly refused.</p> <p>6. Trial <&wkey;260(l) — Instructions — Repetition.</p> <p>Requested charges containing, in substance, the matter of-given charges or the oral charge were properly refused.</p> <p>7. Waters and Water Courses "&wkey;209 — Public Water Supply — Wrongful Cutting Off — Excessive Yerdict.</p> <p>In an action against a water company for breach of its contract to supply plaintiff’s residence, compensatory damages only being sought, and there being no proof of aggravating circumstances, verdict for $350, plaintiff only having been forced to go to a well some distance away for water for a few days, will be reduced, in the discretion of the court under Acts 1915, p. 610, as excessive by $150.</p>

Bill by the Orpheum Taxi Company against the City of Montgomery and the City Commissioners to enjoin the enforcement of the taxicab ordinance.^ There was judgment for complainant, and respondents appeal. The ordinance directed to be set out is as follows: Be it ordained by the board of commissioners of the city of Montgomery, Alabama, as follows: Section 1.

<p>1. Equity <&wkey;141(l) — Bill — Alternative allegations — Sufficiency.</p> <p>A bill by the guardian of a minor against the stepmother, praying for an accounting for rents and profits on land exempted to them in lieu of his deceased father’s homestead, and charging in the alternative that she cultivated the land or received rents therefrom, is defective; the first alternative stating no equity.</p> <p>2. Homestead <&wkey;143 — Rights of Decedent’s Minor Children* — excluded Child —Equitable Relief.</p> <p>Though land exempted as a homestead is occupied by the widow, a coexemptioner and stepchild not living with her is not entitled to rents and profits received by her, but equity may protect such child, if unfairly excluded, on the basis of equality of enjoyment of a property right, which under Code 1907, §§ 4196, 4227, canno't forcibly be destroyed.</p> <p>3. Homestead &wkey;>143 — Construction of Statute — Widow and Children — Presumption — Legislative Intent.</p> <p>There being no enforcement provided for the equality of benefit clause relating to homestead exemptioners in Code 1907, §§ 4196, 4227, it may be presumed that the Legislature intended that, where a family is a collective unit, rents and profits be collectively administered by the widow, as guardian of the minor children, in which case specific division of shares is impracticable.</p> <p>4. Homestead <&wkey;143 — Surviving Wife and Children — Rents and Profits.</p> <p>Under Code 1907, § 4197, granting a homestead exemption out of decedent’s other land, section 4228, declaring occupation unnecessary, and sections 4196 and 4227, providing for equal benefits to its owners, share and share alike, a minor child, who has a guardian and does not live with his stepmother, is entitled to share in the rents and profits from exempted land occupied by neither of them.</p> <p>Anderson, O. J., and McClellan and Gardner, JJ., dissenting.</p>

<p>Appeal from Circuit Court, Mobile County ; Norville R. Leigb, Jr., Judge.</p> <p>Action by Edward Lewis, administrator, against J. R. Wallace. Judgment for defendant, and plaintiff appeals.</p>

Grayson, Judge. Suit by the Dixie Lumber Company against T. O. Young and others, and bill by one Bates, trustee in bankruptcy, against T. O. Young and others. The two cases were consolidated, and on the trial the company was allowed to amend its complaint by making Bates party defendant. There was judgment in favor of Bates and the company, but each, being denied the enforcement of its lien, appeals.

<p>Appeal from Circuit Court, Lawrence County ; Robert C. Brickell, Judge.</p> <p>Action by the Louisville & Nashville Railroad Company against Oscar F. Wright and another. From judgment for plaintiff, defendants appeal.</p> <p>Action in ejectment by appellee against appellant for the recovery of the S. W. % of S. W. % of section 25, township 5, range 7 West, Lawrence county, Ala. The affirmative charge was given by the court for the plaintiff (appellee), and from the judgment for plaintiff the defendants prosecute this appeal. The suit was , originally against J. E. Strickland, who was the tenant in possession of Oscar F. Wright, and the latter was on motion made a party defendant in the cause. The defendants filed plea of general issue — ■ not guilty — and some special pleas, setting up the statute of limitations and adverse possession. These latter special pleas were stricken by the court on motion of plaintiff, and the cause proceeded to trial upon the complaint and issue of not guilty.</p> <p>Plaintiff claimed under the provisions of the act of Congress granting public lands in alternate sections in the states of Florida and Alabama to aid in the construction of certain railroads in said states (said act was approved May 17, 1856 [U. S. Stat. at L. vol. 11, p. 15, c. 31]), and the renewal acts of Congress approved April 10, 1869 (U. S. Stat. at L. vol. 16, p. 45, c. 24), and March 3, 1871 (U. S. Stat. at L. vol. 16. p. 540, c. 118), also act of Alabama Legislature “to execute the power of disposal of the lands granted by an act of Congress,” etc., “approved June 3, 1856; which power of disposal is conferred upon the Legislature of Alabama by said act of Congress” approved February 10, 1S76. Acts of Alabama, 1875-76, pp. 154,155. Plaintiff then offered in evidence a certified copy of the list of lands, including said act of Congress, allotted to the South & North Alabama Railroad Company by the commission, and approved by the Governor of the state of Alabama. The certified transcript was a literal copy of what is termed “List No. 15, South & North Alabama Railroad Lands,” and was. duly certified by the secretary of state, and also shows the certificate of the Commissioner of the General Land Office, certificate of examiners, Division “F,” certificate of examiner in connection with swamp land records, which include the 40 acres of land here involved, as listed, selected, and approved for the South & North Alabama Railroad Company under said act of Congress of June 3, 1856 (11 Stat. 17, e. 41), and March 3, 1871. Said list is shown to have been approved by the Secretary of the Interior May 19, 1896.</p> <p>Plaintiff then offered the deed of South & North Alabama Railroad Company of date January 21, 1914, conveying all the property owned by the grantor, real and personal, of every kind and character, then belonging to said grantor, including all the lands owned by the grantor in fee simple, situated in a number of counties in Alabama, including Lawrence county. Objection to the introduction of said deed was interposed by the defendants upon the ground that the deed did not specifically describe the lands sued for in this action, and therefore conveyed only an equitable title. This objection was overruled.</p> <p>The defendaifts offered in evidence a book purporting to have been published by Milton, Brown & Co. at Birmingham, and also statement of W. E. Brown, public land lawyer, as compiler, which defendants claimed to be a plat book kept in the office of the judge of probate of Lawrence county, which showed a cash entry of the land in question by Thomas Early in 1S60. Plaintiff's objection to the introduction of said book was sustained.</p> <p>Defendants then offered in evidence records of the probate court of Lawrence county, showing the report of the tax collector of said county reporting the lands involved in this suit assessed to “owner unknown,” order of court setting date for hearing same, decree ordering a sale of the lands for payment of taxes, and a sale in May, 1891, for the taxes of 1890. The plaintiff objected to the introduction of said records on the ground that the title to said land was then in the government and not subject to assessment of taxes in the year 1890. Defendants’ counsel stated to the court that the records were not offered for the purpose of establishing title in the defendants, but merely for the purpose of «howing color of title. Plaintiff objected to the introduction of the records for the purpose of showing color of title, which objection was sustained.</p> <p>Defendants then offered in evidence tax deed executed by the probate judge of Lawrence county on July 7, 1893, purporting to convey the lands involved in this suit by S. A. McBride, the purchaser of said land at the tax sale. Similar objections by plaintiff were sustained by the court. Defendants’ counsel stated he only offered the tax deed as color of title; and plaintiff’s objection to the introduction of- said deed as color of title was sustained. Defendants then introduced S. A. McBride to show that he purchased the land at tax sale in 1891, and procured a tax deed in 1893, and, further, to show that he immediately went into possession of the land, and also what acts of ownership he exercised after his purchase of the land at said tax sale, and whether or not he had paid taxes thereon. Similar objections on the part of plaintiff were sustained by the court, to all of which the defendants excepted. Defendants offered evidence tending- to show that said McBride continued in the uninterrupted possession of said land up to the time of the execution of a deed to defendant Oscar F. Wright. The defendants then offered in evidence deed from S. A. McBride and wife dated May 3,1907, purporting to convey the land involved in' this suit to said Wright. Plaintiff’s objection to the introduction of said deed was sustained.</p> <p>Defendants offered to show by said Wright what actual possession he exercised from the time of his purchase from McBride to the time he sold the land to Strickland, but plaintiff’s objection was sustained. Defendants’ counsel stated to the court that the evidence as to possession was offered for the purpose of showing adverse possession of the land by S. A. McBride and those holding under him, including defendants, from and after the date the land involved in this suit was granted to the South & North Alabama Railroad Company, and title acquired by it, that is, in the year 1S96, upon the theory that after said date the possession of McBride under his tax deed became adverse-to said railroad company. Plaintiff’s counsel objected to the Introduction of evidence for that purpose because the title to said land was in the government at the time McBride acquired his tax deed and possession thereunder, and said McBride could not hold said land adversely to the government, and that his possession of said lands could not therefore become adverse to one acquiring title from the government. The court sustained the objection,' and defendants excepted.</p> <p>Defendants offered in evidence deed from Oscar E. Wright to J. E. Strickland, and deed from said Strickland to said Oscar E. Wright, both of which purported to convey the title to the land involved in this suit. Plaintiff’s objection thereto was sustained. Due exceptions were reserved to the several rulings of the court.</p>

Miller, Judge. Action by George P. ICyser, as administrator, against the Birmingham Railway, Light & Power Company for damages for the death of his intestate. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.</p> <p>Bill by Scheuer, Wise & Co. against the New York Life Insurance Company. From decree rendered, complainants appeal.</p>

<p>1. Counties &wkey;>133 — Supplies — “Stationery.”</p> <p>Typewriters are within the terms of the statute providing for stationery for public officers, and may be supplied as such when the nature and character of the office is such' as to require their use in discharge of duties incident thereto.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Stationery.]</p> <p>2. Depositaries <&wkey;ll — Summary Proceedings.</p> <p>A summary motion against a depositary under Code 1907, §§ 5938, 5939, cannot be maintained.</p> <p>Thomas, J., dissenting.</p>

<p>1. Depositaries <&wkey;6 — Depository oe County Funds as Public Officer.</p> <p>A depository, under Gen. Acts 1915, pp. 348-350, making banks depositories and abolishing the office of county treasurer, is not a public officer, but a contractee.</p> <p>2. Depositaries <&wkey;6 — Oounty Funds — Contractual Agency or Office.</p> <p>Gen. Acts 1915, pp. 348-350, abolishing the office of county treasurer and providing for deposits of county funds in banks, was intended to create a mere contractual agency to perform the functions of the former county treasurer.</p> <p>3. Depositaries <&wkey;ll — County Funds — Summary Remedy — Statutes.</p> <p>Gen. Acts 1915, pp. 348-350, abolishing the office of connty treasurer and authorizing the deposit of county funds in certain banks, did not, by section 5, subject such depository to the summary remedy provided by Oode 1907, § 5938.</p> <p>4. Depositaries &wkey;ll — Claims—Warrants for Payment of Jury Commissioner — “Allowed Claim.”</p> <p>If Oode 1907, § 5938, be available against a depository of county funds under Gen. Acts 1915, pp. 348-350, a warrant from the judge of probate to a jury commissioner under Gen. Acts 1909 (Sp. Sess.) p. 305 et seq., for salary, is not an allowed claim against the county within Oode 1907, § 5938.</p> <p>5. Statutes <&wkey;225% — Construction—Effect of Re-enactment — Prior Decisions.</p> <p>The repeated readoption without material change enacts as a part of the statute itself, the construction placed upon its terms by the Supreme Gourt.</p>

Kyle, Judge. J. A. Wade and another brought suit against Arthur H. Garnett to recover damages for the loss of a mule belonging to plaintiffs and under contract of hire to the defendant. There was judgment for the defendant, and the plaintiffs appealed. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Most of the facts sufficiently appear.

Brickell, Judge. Bill by the Chattanooga Savings Bank against Baxter Crawford and others for reformation and foreclosure of a mortgage. Decree for complainant, and respondents appeal. The bill is filed by complainant as transferee of Mrs. D. O. Rawlings to foreclose a mortgage executed by respondent to Mrs. Rawlings to guarantee the repayment to her of one-half of a loan made by her to her son-in-law, C. C. Crawford, who is also the son of respondent.

<p>1. Railroads <&wkey;391(4) — Personal Injuries —Wanton Injury.</p> <p>If trainmen aware of the danger of a person on the track consciously fail to do all in their power with the means in hand to ayoid injuring him, and his injury is proximately caused by such failure, they are guilty of wantonness notwithstanding his contributory negligence.</p> <p>2. Trial &wkey;>242 — Instructions—Refusal of Misleading Instructions.</p> <p>Instructions calculated to mislead the jury under the issues and evidence are properly refused.</p> <p>3. Negligence <&wkey;82 — Contributory Negligence-Proximate Cause.</p> <p>Contributory negligence, in order to avail defendant, must not only be a want of ordinary care, but there must further be a connection between such want of care and the injury.</p> <p>4. Railroads <&wkey;401(9) — Personal Injury Action — Instructions.</p> <p>In an action for injuries to one struck by a train, held error to refuse an instruction- to find for plaintiff if the jury found that defendant’s servants were wantonly negligent.</p> <p>. 5. Trial <&wkey;253(l) — Instruction — Instructions Ignoring Issues.</p> <p>An instruction ignoring the issues under some of the counts of the complaint is properly refused.</p> <p>6. Trial &wkey;>240 — Instructions—Argumentative and Misleading Instructions.</p> <p>Argumentative instructions are properly refused.</p>

<p>1. Injunction <&wkey;137(2) — Temporary Injunction-Grounds for Denial — Inconvenience.</p> <p>On appeal under Code 1907, § 4531, the trial court’s order denying a writ of temporary injunction after hearing as provided by section 4529 will be sustained where the benefit to complainants as compared with the great inconvenience to the defendants is so small that it will amount to an oppression to grant an injunction until final hearing is had.</p> <p>2. Appeal and Error <&wkey;695(3) — Facts Not Presented to Court.</p> <p>Where on appeal from an order denying a temporary injunction it appears that the trial court had the benefit of an exhibit and certain evidential facts not presented to the appellate court, decree of the lower court will be affirmed.</p>

Petition by Alonzo L. Willoughby and others for the removal of Jennie U. Willoughby, as administratrix. Prom an order denying the petition, petitioners appeal.

<p>1. Fraudulent Conveyances <&wkey;271(4) — Bulk Sales Law — Bubden of Proof.</p> <p>. In an action by a judgment creditor to set aside a sale' as fraudulent under the Bulk Sales Law, 'the burden is upon the purchaser to allege and prove facts relieving the sale of the legal implication of fraud.</p> <p>2. Fraudulent Conveyances &wkey;?295(l). — Suit to Set Aside — Bulk Sales Law-Evidence.</p> <p>In a suit by a judgment creditor to set aside a sale of merchandise as being fraudulent as to creditors under the Bulk Sales Law, evidence held to show that neither the seller nor the purchaser intended to hinder, delay, or defraud creditors.</p> <p>3. Fraudulent Conveyances <&wkey;276 — Bulk Sales Law — Evidence.</p> <p>If a purchaser of merchandise knew that any existing creditor of the seller was not to be provided for, and notwithstanding took over the debtor’s property at a price substantially lower than its reasonable value, the inference of fraud is justified in an action to set aside the sale under the Bulk Sales Law.</p>

Leigh, Jr., Judge. Bill by Samuel G. Neuberger against Nicholas Felis and wife to set aside a conveyance as a fraud on creditors. From a decree sustaining demurrers to the bill, complainant appealed.

<p>Appeal from Circuit Court, Madison County; Robert C. Brickell, Judge.</p> <p>Action by John B. Brannum against the Cherokee Life Insurance Company on a life insurance policy. Judgment for plaintiff, and defendant appeals.</p> <p>The second replication contains the receipt referred to in the opinion, and is as follows:</p> <p>(2) On said 26th day of October 1916, the defendant, by and through its duly authorized agent Charles B. Tarr, signed and delivered to the plaintiff an instrument in writing in words and figures as follows :</p> <p>“This receipt is not valid for more than first year’s premium nor in excess of a premium on $25,000.00 of insurance. This receipt must not be altered. The settlement as shown herein must correspond in amount with the settlement as shown in the application of corresponding number signed by the applicant. '</p> <p>“Received of John S. Brannum, at Owen's X Roads, state of Alabama, this 26th day ot October, 1916, the sum of seventy-eight and OS/100 dollars, in connection with his application for insurance in the Cherokee Life Insurance Company, said application corresponding in date and number with this receipt and containing said applicant’s declaration that he paid the sum hereby receipted for, and that he assents to the terms of this receipt, as follows, to wit:</p> <p>“First, that if a policy be delivered on said application said company shall accept this receipt as cash towards the payment on the first premium of said policy.</p> <p>“Second, that if the company fails to offer to deliver a policy on said application within ninety days from this date, and if such failure is not attributable tó the applicant’s neglect or refusal to comply with the company’s rules, regulations and requirements as to medical examination and other customary requirements in acting upon application for insurance (and only on this event) the company will return said sum to the applicant upon surrender of this receipt, otherwise the payment will be retained by the company in consideration of this trouble and expense incurred on account of this application.</p> <p>“Third, that if said company will within ninety days from this date offer to deliver to said applicant a policy of insurance on the plan applied for and said sum in consideration of the trouble and expense it shall have incurred on account of said application,” etc.</p> <p>“Fourth, that this receipt will not be valid for any sum in excess of the sum declared by said applicant in his said application to have been paid. It will not be valid if issued after December 31, 1916. It will not be valid if any erasures or additions have been made in printed form.</p> <p>“Fifth. That this receipt is nonnegotiable and cannot be assigned or transferred.</p> <p>“Sixth. If full settlement has been made with this application the insurance will be in force from the date of approval of the completed application by the company medical adviser.</p> <p>“Seventh. No conditions or agreements other than those printed herein and in the application shall be binding. Conditions on back of this receipt a part of same, as if printed herein.</p> <p>“[Agent imust sign here] Chas. B. Tarr, Agent. No. 46397. AC. Chas. B. Tarr. R. R. Guiee. Cherokee Life Insurance Company. Gadsden, Alabama.”</p> <p>On the back is found the following in writing: “The agent is not authorized to give this receipt to the persons exceeding the limit of height and weight indicated in the table below or to those who have been rejected by another company or who are not in good health.”</p> <p>And plaintiff alleges that full settlement was made with said application by said agent taking the notes of said plaintiff for the premium one for $50 due on delivery of the policy and the other for $28.0S due oh January 15, 1917, both of which were paid when due and payment accepted by the defendant and said policy delivered to plaintiff. And plaintiff further alleges that said completed application for insurance was approved by the defendant’s medical director on the 4th day of January, 1917, which was prior to the death of said Bertha Brannum.</p>

Brickell, Judge. Proceedings by the State against Arch Maples and wife in which C. H. Beiker filed a petition setting up a claim to the automobile in question. From decree rendered, respondents and petitioner appeal.

<p>Appeal from Circuit dourt, Marengo County ; Robert I. Jones, Judge.</p> <p>Bill by U. iS. Jones and others against Alice C. Meriwether and others. From decree rendered, complainants appeal.</p>

<p>1. Principal and Agent <&wkey;120(4) — Misrepresentations — Evidence of Authority.</p> <p>Where a seller’s agent represented to the buyer’s son that an. electric car would go 80 miles on a charge, and when the representation, which was made in the presence of the witness, was repeated to the seller’s manager, he stated that the agent knew what he was talking about, the witness may, where the buyer claimed the right to rescind for fraud, etc., testify as to the representation; for, though it was not made to the buyer, yet, as the negotiations were begun through the buyer’s son, it tended to establish authority in the agent to make the mis-representations.</p> <p>2. Principal and Agent <&wkey;173(2) — Misrepresentations — Ratification — Evidence.</p> <p>Where the seller’s agent opened negotiations through the buyer’s son and represented to him in the presence of a witness that an electric car would go 80 miles on a charge, held that, where the .seller’s manager, when the matter was' referred to him, stated the agent knew what he was talking -about, the witness might testify as to the agent’s representation; for the evidence tended to show that the manager of the seller ratified such representation.</p> <p>3. Sales <&wkey;52(4) — Misrepresentations —Evidence.</p> <p>Great latitude is allowed fn the range of evidence where a buyer assorts that the seller made fraudulent representations as to the article sold.</p> <p>4. Sales <&wkey;3S(2) — Fraud — What Constitutes.</p> <p>Under Code 1907, §§ 4298, 4299, reckless statements without knowledge or regard to their truth or falsity will be deemed fraudulent, and one who is negotiating a sale must not assert ■'recklessly without knowledge a fact material to be known, the obligation to communicate which may arise from the confidential relation of the parties or from the peculiar circumstances.</p> <p>5‘. Trial &wkey;>60(l) — Order of Proof — Relevant Testimony.</p> <p>That evidence making relevant testimony ad- ^ mitted over objection was not introduced until" after the admission of the testimony objected to does not render admission of such testimony erroneous.</p> <p>6. Principal and Agent <&wkey;194(2) — Acts of Agency — Liability of Principal.</p> <p>Where the buyer of an electric automobile asserted that she was induced to buy through misrepresentations of the seller’s agent, etc., ■ a charge that the burden was on her to make .out every material allegation of the complaint, and that it was for the jury to say whether the .agent made any representation, and, if he did, whether he had authority, which the court modified by excluding any question of the agent’s apparent authority, was more favorable than the seller was entitled to, and not open to objection.</p> <p>7. Sales <&wkey;316(2) — Rescission — Grounds.</p> <p>Where the agent of the seller of an electric automobile made misrepresentations which entitled the buyer to rescind, held', that the buyer might by an action of detinue recover specific chattels or their value delivered to the seller.</p> <p>8. Sales <&wkey;124 — Rescission — Right to Rescind.</p> <p>Where the buyer of an electric automobile was entitled to rescind because of the seller’s misrepresentations, held that, where she had repaired a slight injury to the fender of the electric, which occurred without her fault, the fact of the injury did not preclude rescission.</p>

<p>Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.</p> <p>Dock Bigham was convicted of murder in the first degree, and he appeals.</p>

<p>Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.</p> <p>Suit for divorce by Anna F. Ortman against Emile Ortman. From the decree, allowing alimony pendente lite in the sum of $603, and permanently in the sum of $58.25 per month, defendant appeals.</p> <p>It appeared from the evidence that the respondent was in the drug business, but just what the business was worth or paid in was not disclosed. It further appeared that during the years of their married life respondent contributed $100 per month towards household expenses and paid the other bills, amounting as estimated to about $50 per month additional to the household expenses. It appeared that since the separation the respondent paid for a while the sum of $50, and later reduced it to $40 per month, and that this went to the snpxiort for the two children. It further appeared that the complainant was in possession of the two houses, from which she had an annual income of $502.99; that her brother contributed the sum of $50 per month to her support; that her daughter was in Columbia University, and had two more years there; that complainant’s brother bore most of this expense; and that the son was at work and self-sustaining. The chancellor concluded that complainant had an income of $91.75 per month, and required respondent to pay the difference between that sum and $150 per month.</p>

M. Miller, Judge. Bill by I. N. Jones and another against Pat Kelly, to quiet title to land. From the decree rendered, plaintiffs appeal.

Suit between the First National Bank of Alexander City and Harden & Thompson. There was an adverse judgment as to the bank on appeal to the Court of Appeals (82 South. 655), and the bank petitions for certiorari.

W. Haralson, Judge. Harvey Carden was convicted of murder, and appeals.

<p>Appeal from Circuit Court, Tuscaloosa County; Henry B. Poster, Judge.</p> <p>Bill by Mrs. Ella Leland Paulk against Joseph Leland to enforce a trust. Decree for complainant, and respondent appeals.</p> <p>R. M. Leland, W. A. Leland, H. H. Leland, Joseph Leland, Ella Leland Paulk, Carrie Leland, and Hume Leland, being all the heirs at law of Mrs. Ella M. Leland, deceased, entered into an agreement on the 24th day of December, 1912, relating to the division and disposition of the property of the estate of said Mrs. Ella M. Leland. On the 30th day of December, 1912, they executed a deed among themselves to effectuate the disposition of the property according to the previous agreement.</p> <p>The homestead of Mrs. Ella M. Leland was conveyed by that deed to Carrie Leland and Ella M. Paulk, and by reference to the prior agreement the conveyance contained a restriction upon the sale of the homestead; that is to say, it was provided that it should not be sold for a sum less than $30,000, unless both Carrie Leland and Ella M. Paulk agreed to a sale for a smaller amount.</p> <p>The prior agreement provided for a conveyance of all the other property of the estate, consisting of two river farms, to a trustee for the benefit of Carrie Leland and Hume Leland and the other heirs. And in said deed they conveyed such other property to Joseph Leland as such trustee.</p> <p>The pertinent parts of the deed of trust and the agreement are as follows:</p> <p>1. Prom the deed of trust:</p> <p>“First. Said trustee shall hold said property in trust for use and benefit of such of the heirs of the estate of the said Mrs. Ella M. Leland, deceased, for and during the period of five years from the 31st of December, 1912, as set out and contained in said agreement, and is hereby given full power and authority over said plantations for the purpose of renting out the same, collecting the rents, paying the taxes on said plantations and homestead so long as latter is occupied as such, preserving and taking care of the same for the said heirs, but it is expressly understood and agreed that said trustee shall have no power to lease said plantations or either of them, or any part thereof without written approval of Carrie Leland and subject to the conditions expressly set forth in the agreement above referred to and which is hereto attached. The net rents, incomes, and profits derived from the management of said plantations shall be preserved by said trustee, and distributed by him under, and in pursuance of the terms of said agreement hereto attached; but said trustee shall have no power to lease said place himself or have any benefit or interest in any rent contracts except such interest as he may have as a joint owner.</p> <p>“Second. After the expiration of said period of five years all of the rights, powers and authorities of said trustee shall cease; provided said plantations are sold under, and according to the provisions of the agreement hereto attached. In the event said plantations should not be sold, then said trustee shall continue in the discharge of this trust under, and in pursuance of the provisions of the agreement hereto attached.</p> <p>“Third. Said trustee is hereby invested with all of the powers contained in said agreement hereto attached, and is fully authorized and empowered to carry out the provisions of said contract, under and in accordance with the terms thereof as fully and completely as if the same were specifically set out in this indenture, and he is hereby fully and completely invested with power and authority to carry out and execute all tije terms and conditions of said contract, as fully and completely as if the same were specifically set out in this indenture.”</p> <p>• “Eighth. The said trustee shall pay all taxes and sidewalk, street and sewer assessments against the homestead; and shall keep the same in a reasonable state of repair under the approval and direction of Carrie Leland and Mrs. Paulk; and shall also keep said homestead insured; and all such assessments, charges and expenses shall be a charge againt said plantations; until the sale of said farms.”</p> <p>2. From the prior agreement:</p> <p>“5. Said heirs further agree that they will and shall execute a conveyance conveying all other property to a trustee for the benefit of Carrie Leland and Hume Leland and the other heirs of said estate, as follows: Said trustee shall have full power and control over all of said «other property, consisting of two farms, the Potter place and Leland place, to rent out the same and collect rents, pay taxes and care for the property and preserve said rents, incomes and profits for the following purposes:</p> <p>“(a) Said trustee shall pay to. Carrie Leland $75.00 per month for five years; (b) and shall also pay Hume Leland $10.00 per week for five years; (c) and shall pay any indebtedness duo from said estate and the taxes and other expenses incident to said -trust; and (d) to preserve what surplus there may be for the benefit of the beneficiaries heroin set out.”</p> <p>“16. In the event the rents should fall below a sum sufficient to pay Ilume Leland and Carrie Leland the amounts provided for them and the expenses, taxes, etc., then said sums shall be paid out of any surplus accumulated; or said trustee shall be authorized to borrow money sufficient to pay $75.00 to Carrie Leland monthly and Hume Leland weekly $10.00 as herein provided.”</p> <p>Mrs. Ella Leland Faulk in April, 1918, filed this bill, alleging that Joseph Leland, the trustee, had failed to pay taxes on the homestead, and had failed to carry out the other trusts imposed on him with reference to the same, and prayed for a construction of the agreement, and that defendant be ordered to pay all taxes, sidewalk, street, and sewer assessments against the homestead, and to keep the homestead in a reasonable state of repair under the direction of Carrie Leland and Ella Leland Faulk.</p> <p>The defendant answered, setting up that under the terms of the deed of trust and the prior agreement he, as such trustee, was authorized and empowered to pay the taxes and other charges against the homestead out of the rents received from the farms only so long as the homestead was occupied by Carrie Leland and Ella Leland Faulk as a homestead; that in October, 1916, said Carrie Leland and complainant abandoned said homestead, as a homestead, and leased the same for office purposes for a period of three years from the date of the agreement, and that defendant by reason thereof was no longer under duty to pay the taxes, assessments, etc., against the homestead out of the rents of the farms; that in the year 1916 all the crops on said farms were destroyed by a flood, and defendant was unable to collect any rents that year; that for this reason it became necessary for defendant to exercise his power to borrow money for the support of Carrie Leland and Hume Leland, and that the debts so incurred, together with the charges against the farms, absorbed all the rents collected for the year 1917, and defendant has not, and has not had, any moneys arising from the rent of said farms, available for the purpose of discharging the taxes, charges, and assessments against the homestead.</p> <p>Defendant also alleged that he is now renting out said farms, and it might be that he would have proceeds therefrom over and above the sums necessary to be devoted under the terms of the trust to the support of Carrie Leland and Hume Leland, and that it is important • and necessary that the defendant be informed and instructed by the court as to the construction of said deed of trust and contract and his powers and authority thereunder.</p> <p>Both the bill and the answer called for a construction of the agreements' and a statement of the defendant’s powers and duties thereunder, and in fact such construction is essential to define and conserve the rights of all parties to the agreement.</p> <p>The case was submitted on the pleadings and exhibits, and the court decreed, among other things:</p> <p>“That the complainant is entitled to the relief prayed for, and it is the order, judgment, and decree of the court that the said Joseph Leland, the trustee named in said contracts, be and he is hereby ordered and directed to pay all state, county, and city taxes levied against the property on Greensboro avenue, known as the old Leland homestead, and to pay all sidewalk, street, and sewer assessments against said property, and he is ordered and directed to keep the same in a reasonable state of repair, under the approval and direction of Miss Carrie Leland and Mrs.' Ella Leland Faulk, and he is ordered to keep said property insured for a reasonable amount in some reliable insurance company.”</p> <p>This appeal is from that decree.</p>

Martin, Judge. Bill by John W. Wall and. others against H. R. Screws and others. Decree for complainants, and respondents appeal. Complainants, brothers and sisters and next of kin of Sallie Screws, deceased, filed this bill against appellants H. R. Screws and J. C. Reid, seeking to remove a cloud upon their title.

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, ‘ Judge.</p> <p>Action by the First National Bank of Montgomery, against the American Surety Company of New York. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Probate Court, Conecuh County; S. P. Dunn, Judge.</p> <p>Petition by M. N. Dunn, as guardian of Irene Cobbs, a minor, to secure confirmation of private sale by the guardian jointly with another of realty alleged to be the joint property in equal parts of the minor and such other, J. B. Stearns, as guardian ad litem for the minor, contesting. From an order confirming the sale, the guardian ad litem appeals.</p> <p>Petition by M. N. Dunn as guardian of Irene Cobbs, a minor, to secure a confirmation by the probate court of a private sale made by said guardian jointly with Mrs. Katie E. Bowles Frink, of certain real estate alleged to be joint property in equal parts of said minor and said Mrs. Frink. J. B. Stearns, as guardian ad litem for said minor contests the petition on the ground that said Mrs. Frink has in fact no interest in said property which is owned solely by said minor, and that it would not be to her interest to confirm the sale. The question of the minor’s ownership, whether joint or sole, depends upon the proper construction of the terms of the will of P. D. Bowles, deceased.”' Item 2 of the will devises certain realty to the testator’s married daughter Mrs. Katie E. Bowles Frink, for life; and item 3 devises certain realty to another married daughter, Mrs. Mary E. Bowles Cobbs, for life. Item 5 gives to a sister of the testator a pecuniary legacy, payable $10 per. month, arid declares:</p> <p>“In the event the same should lapse hy death before ah of said money is paid out then the remainder shall revert to my residuary estate.”</p> <p>Item 6 is as follows:</p> <p>“Should any of the gifts and bequests made by me in the second, third, fourth and fifth paragraphs of this will lapse or fail for any reason, then, the whole amount of property named therein for the benefit of either of my daughters shall vest in her child or children and in the event there is no surviving child then to her surviving sister and in the event that the two daughters above named die without any surviving child then all of the real estate lying and being in Hillsboro county, state of Florida, shall vest in fee to the trustees of the Children’s Homo located on Florida Ave. on the outskirts of the city of Tampa, lying and being situated in Hillsboro Co., state of Florida, and all real estate located in the county of Conecuh, shall vest in fee to the bishop of the Protestant Episcopal Church, diocese of the state of Alabama, for the sole use and benefit of St. Mary’s Church, located in the city of Evergreen, in the county and state aforesaid.”</p> <p>The will was executed on July 24, 1919, and filed for record August 6, 1910. The testator was 75 years of age when he died, and when he executed the will Mrs. Frink was 46 or 47 years old, and was childless after 10 years of marriage, and Mrs. Cobb was about 35 years of age, with one child (said Irene) about 4 years of age. Before the sale Mr. Cobb and Mrs. Cobb, parents of Irene were both deceased and left no other child. The trial court made an order confirming the sale, and the guardian ad litem appeals. Reversed and rendered.</p>

<p>1. Railroads <&wkey;400(l, 15) — Injury to Person on Track — Negligence.</p> <p>In action for death of an intoxicated pedestrian struck at night by a backing switch engine while he was prostrate on the tracks, held that trial court properly refused to give affirmative instructions against the right to recover either under the wanton counts or the count charging simple negligence.</p> <p>2. Appeal and Error &wkey;>237(2) — Assignments — Review able.</p> <p>Where no grounds of objection were stated to questions to witnesses or motions made to exclude, assignments predicated on rulings with reference to the testimony elicited cannot be sustained..</p>

<p>Appeal from Circuit Court, Cullman County; Robert C. Brickell, Judge.</p> <p>Bill by J. F. Manning and others against T. C. Yeager and others. Decree of dismissal, and complainants appeal.</p>

<p>Appeal from Circuit Court, Madison County; Robert C. Briekell, Judge.</p> <p>Bill to quiet title by R. A. Manning against W. D. Manning. Prom a decree sustaining demurrer to the cross-bill, defendant appeals.</p>

<p>1. Parties <&wkey;95(l) — Amendment — Addition of Names of Parties.</p> <p>In suit for breach of warranty in the sale of seeds, amendment of the complaint by adding a number of names of persons who sued for the use of the single plaintiff first named did not work an entire change of parties and was permissible under Code 1907, §§ 2490, 5367.</p> <p>2. Action @=>50(3) — Joinder — Joint Cause of Action.</p> <p>Counts of a complaint held to disclose a joint cause of action, on the part of the original plaintiff and his coplaintiffs added by amendment, for a breach of warranty in the sale of seeds.</p> <p>3. Parties @=>15 — Joinder of Plaintiffs— Action on Contract.</p> <p>In order for two or more parties to join in an action on a contract, there must be community interest, that is, they must be parties to the same and jointly interested, though their interests need not necessarily be equal.</p> <p>4. Parties @=»15 — Joinder — Breach of Warranty.</p> <p>If the buyer of seeds made a contract with the seller for himself and other plaintiffs jointly, such other plaintiffs may join with him in an action for breach of warranty, though the seller was ignorant of any interest they had in the contract, otherwise if the buyer bought for himself only, with the expectation to resell to the other plaintiffs.</p> <p>5. Sales @=3273(4) — Sale of Seeds — Implied Warranty.</p> <p>A sale of seeds, accomplished by an unequivocal offer to sell, which was accepted by the buyer, carried with it an implied warranty that the seeds to be delivered were the kind offered and were not to be mixed with any other kind.</p> <p>6. Sales @=>445(1) — Joint Action — Plaintiffs as Parties to Contract — Question for Jury.</p> <p>In an action for breach of warranty in the sale of seeds, whether or not all plaintiffs were parties to the contractor’s sale to authorize a joint action held for the jury under the evidence.</p> <p>7. Sales @=>445(4) — Breach of Warranty —Question for Jury. «</p> <p>In an action for breach of warranty in the sale of seeds, question of the species of seeds delivered, whether they were the kind bargained for, and whether they were mixed with other sorts of seeds, held for the jury under the evidence.</p> <p>8. Evidence @=>13 — Judicial Notice — Crops.</p> <p>It is a matter of common knowledge that Johnson grass and broom corn are quite common in Alabama, and that prolific crops of them are often grown without planting every season.</p> <p>9. Evidence @=>129(5) — Breach of Warranty-Similar Transactions.</p> <p>In an action for breach of warranty in the sale of cane seed by mixing it with the seed of Johnson grass and broom corn, etc., it would have been proper for the buyers to have shown the nature and character of the crops of others using the same kind of seed procured from a similar source, and for defendant to have done likewise, to support and rebut respectively the inference arising from the fact that the fields sown with the purchased seed came up with the grass and corn besides the cane.</p> <p>10. Evidence &wkey;>129(l) — Breach oe Warranty.</p> <p>In an action for breach of warranty in the sale of cane seed, proof that defendant dealer in such seeds received no complaint'from others to whom he had sold similar seeds held inadmissible.</p>

<p>Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.</p> <p>Suit by W. C. Clarke against John H. Minge. Erom judgment for plaintiff, defendant appeals.</p>

Brickell, Judge. Assumpsit by A. W. Newson against D. C. Finney. Judgment for plaintiff, and defendant appeals.

<p>Insurance <&wkey;400 — Life Insurance — Incontestable Clause — Estoppel as to Defense.</p> <p>An insurer which issues a life policy containing an “incontestable clause” is estopped to set up the special defense that insured was a felon sentenced to death, and was killed while attempting to escape imprisonment and execution, a ground of contest of liability not specified in the contract of insurance.</p>

L. Sowell, Judge. Action by Tom Spann against the Corona Coal & Iron Company. Judgment for plaintiff, and defendant appeals. Appellee, while working in the coal mine of the appellant, was injured by the falling of a rock from the roof of the mine, and brings this suit to recover damages therefor.

<p>1. Executors and Administrators &wkey;>418— Insolvent Estate — Distribution Pending Appeal from Disallowance of Claim.</p> <p>An administrator, who, pending a successful appeal from an ox’der expunging a claim reports the claim as expunged and permits a decree nnder which he distributes funds of an insolvent estate to other creditors is liable to claimant for a ratable proportion of the funds, though claimant failed to supersede the decree ordering distribution.</p> <p>2. Executors and Administrators <&wkey;4-19— Wrongful Distribution of Funds of Insolvent Estate — Claimant’s Right to Interest.</p> <p>An administrator’s distribution of all funds of an insolvent estate pending a creditor’s successful appeal from a disallowance of claim, is a misapplication of funds for which he is chargeable with interest on the claim.</p> <p>3. Executors and Administrators <&wkey;510(4) —Appeal — Record — Exception to Allowance to Administrator.</p> <p>Complaint of the failure of the register to allow the administrator a sufficient amount for the expenses of administration of the estate cannot be considered an appeal upon an abridged record containing no exception to the register’s report by the administi’ator which would support such insistence.</p>

<p>Appeal from Oircuit Court, Clay County; Hugh D. Merrill, Judge.</p> <p>Suit by Hester Price against S. W. Pruet and others. From decree for defendants, plaintiff appeals.</p>

<p>1. Criminal Law i&wkey;1087(^) — Record—Minute Entry — Correction.</p> <p>Minute' entry showing that on December 28, 1918, the “judge of the Fifteenth judicial circuit * * * in vacation drew from the jury box of said county” the names of 52 persons to serve as “petit jurors for the second, or criminal week, of this term of this court,” the term recited in the caption being the fall term December 28, 1918, is self-corrective in reciting that jury was drawn in vacation.</p> <p>2. Criminal Law <&wkey;631(8) — Venire — Amendment.</p> <p>There was no error in court amending the name of a juror appearing on the venire, served on defendant, to conform to the true facts of the drawing, in view of Laws 1909, p. 317, § 29, providing that no objection can be taken to venire' except for fraud in summoning or drawing.</p> <p>3. Criminal Law <&wkey;305(l), 371(4) — Res Gestas — Other Offenses — Intent.</p> <p>In prosecution for murder of defendant’s father-in-law, there was no error in allowing defendant’s wife to testify to the res geste of the homicide, that when she cried out defendant attacked her; defendant’s attempts to kill of terrify wife to prevent her outcry, and to burn the house to destroy evidence of his crime', shedding light on intent with which defendant struck the fatal blow.</p> <p>4. Homicide <&wkey;174(6), 193 — Possession of Weapon — Evidence Admissible.</p> <p>In prosecution for murder of defendant’s father-in-law, it was not relevant as to where defendant’s wife found gun when she - moved after the homicide, though she was properly permitted to testify that she did not know where the gun was on the night of the homicide, and that her father was not reaching for any gun when he was struck.</p> <p>5. Witnesses <&wkey;236(4) — Confusing Question-Sustaining Objection.</p> <p>In prosecution for murder there was no reversible error in sustaining objection to question which was confusing as to several blood stains on the floor as detailed by the witness.</p> <p>6. Homicide <&wkey;171(2) — Evidence of Blood Stains — Admissibility.</p> <p>The court properly permitted the witness to explain her location and that of blood on the floor with reference to the' bed where witness was, and to the body of her deceased father, the victim.</p> <p>7. Homicide <&wkey;253(l), 314 —First Degree Murder — Evidence—Sufficiency.</p> <p>Jury hold within its province in finding defendant guilty of murder in the first degree, and fixing his punishment at death.</p>

Pugh, Judge. Action by Richard Graves against the Cruse-Crawford Manufacturing Company, for damages for personal injuries. Judgment for defendant, and plaintiff appeals. Plaintiff sues for injuries received while walking along a public alley in tire city of Birmingham as the result of falling over a pile of iron placed there by the defendant.

P. Almon, Judge. Bill for divorce by W. F. Rickerson against . Pearl Rickerson. From an order allowing temporary alimony and solicitor’s fe.e and overruling motion to set aside the allowance, complainant appeals. Appellant filed the bill in this cause seeking a divorce from appellee, his wife. Answer was filed whereby the wife sought alimony and reasonable attorney’s fee pending the suit. A reference was ordered by the court.

<p>Appeal from Circuit Court, Franklin County; C. P. Almon, Judge.</p> <p>Action by Geneur Thompson, administratrix, against the Poster & Creighton Company. . Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Calhoun County ; Hugh D. Merrill, Judge.</p> <p>Suit by G. B. Sharp and others against W. C. Edwards and others. Decree for defendants, and complainants appeal.</p>

Bill by the State of Alabama, on the relation of J. Q. Smith, Attorney General, against Albert S. Burleson, as Postmaster General, and others. Interlocutory or temporary injunction refused by circuit court, and application therefor renewed under Code 1907, § 4519, to Supreme Court. Erom a decree dismissing the bill and dissolving the injunction, complainant appeals.

<p>1. Insurance <&wkey;524 — Accident Insurance —Construction of Policy — Total Disablement.</p> <p>Under accident policy defining total disablement as “continuous disablement and inability from date of accident,” etc., there can be no recovery for total disablement following a period of partial disablement.</p> <p>2. Trial <&wkey;296(13) — Instructions—Correction.</p> <p>In action on accident policy, instruction defining total disablement as inability to perform “any. material or substantial part of his duties” was cured by subsequent instruction calling jury’s attention to former incorrect statement, and charging that there was no total disablement unless insured was disabled, “from performing any and every material and substantial duty.”</p> <p>3. Insurance <&wkey;524 — Accident Insurance —“Total Disablement.”</p> <p>Insured was totally disabled within policy defining total disablement as inability “to perform any and every business duty or occupation,” though on different occasions he went to his place of business and attempted to perform some of his duties, where he had to desist therefrom; the attempt being an error of judgment and indiscretion.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Total Disability.]</p> <p>4. Insurance <&wkey;524 — Accident Insurance— “Total Disablement.”</p> <p>Total disability may exist under policy defining total disablement as inability “to perform any and every business duty or occupation,” though it is physically possible for insured to perform occasional acts as part of his employment or business; it being unnecessary that insured he confined to his room, home, or hospital for entire period for which he claims total disability.</p> <p>5. Insurance <&wkey;524r-AcciDBNT Insurance —Total Disability — Insurer’s Refusal to Attempt Performance of Duties.</p> <p>Insured’s failure or refusal to attempt to do or perform any act relating to. or connected with his business would not have precluded insurer from proving that the injury or accident was not such as to cause total disability.</p> <p>6. Insurance ,<&wkey;52&wkey;AcciDENT — Total Disability-Estoppel. '</p> <p>Insured’s attempt to perform some of the duties of his employment, where in fact ho ought not have made such attempt, did not estop him from showing that he was totally disabled during such period.</p> <p>7. Insurance <&wkey;524^-AcciDENT Insurance —Total Disability — Wages.</p> <p>That insured received wages from his employer during the period of time for which he claimed total disability did not of itself preclude his right to recover as for such total disability.</p> <p>8.Insurance <&wkey;550 — Accident — Notice — Estoppel.</p> <p>Insured, by giving notice and claim for loss for specified period of total and partial disability, did not estop himself from subsequently giving another notice and claim of loss for a longer period, where insurer did not act upon first claim to its detriment or injury.</p>

<p>Appeal from Circuit Court, Marshall County ; W. W. Haralson, Judge.</p> <p>Bill by Thomas M. Boling against the T. L. Farrow Mercantile Company. Decree for defendant, and plaintiff appeals.</p>

<p>Taxation &wkey;549(l) — Tax Sales to State-Redemption — Compensation of Officer Employed to Procure — Liability of City.</p> <p>. Where the state auditor, as authorized under Code 1907, §§ 2335, 2336, made a contract with a party to investigate tax sales of land bid in by the state, allowing him as compensation 10 per cent, of all proceeds arising from sales or redemptions, the city of Birmingham cannot refuse to pay such amount on its share; the collection of assessments of Birmingham city taxes and all tax sales, redemptions, etc., being by Acts 1911, p. 130, turned over to state and county officials.</p>

<p>1. Criminal Law <®=o1086(10, 11) — Capital Cases — Orders oe Record.</p> <p>In capital cases, the statutory orders of the court as to the setting of the day for trial, fixing the number of the special venire, and that a copy of the indictment and venire be served on* defendant, etc., are matters of record proper, and must so appear, though service of the copies of the orders on defendant need not affirmatively appear.</p> <p>2. Jury &wkey;65 — Filling Jury Box — Duty oe Commissioners.</p> <p>Jury commissioners in capital cases should be careful to comply with the statutes as to the manner and mode of filling and keeping filled the jury box of the county.</p>

<p>1. Railroads <&wkey;414r — Injury to Animal on Track — Liability.</p> <p>Where a frightened animal flees before' an approaching train and runs into a trestle and is injured without contact with the train, recovery may be had Without showing willful or wanton misconduct on the part of the trainmen.</p> <p>2. Railroads <&wkey;419(4) — Frightening Animals — Liability.</p> <p>The trainmen muét use due care to avoid driving animals into a trestle, and when it appears that an animal is not going to leave the track before it reaches the place of danger, the trainmen must stop the train and drive the animal off the track before proceeding further.</p> <p>3. Railroads <&wkey;419(4) — Frightening Animals — Liability.</p> <p>Where an animal can without great danger to itself leave the track and thus avoid a trestle, the trainmen may presume that it will do so, but they should sound the alarm and check the speed so as to bring train under control, and where the animal is on a fill so high that it cannot be reasonably expected that it will leave the track, the train should be stopped, if possible, at a reasonable distance behind the animal and before it has reached the. trestle.</p> <p>4. Railroads &wkey;>446(10) — Injuring Animals Running on Trestle — Question for Jury.</p> <p>In case of injury to an animal frightened by train and running into a trestle, the question of negligence and whether seasonably stopping of the train would have checked the flight and prevented the injury are ordinarily for the jury.</p> <p>5. Trial <&wkey;251(3) — Instructions — Not Applicable-Refusal.</p> <p>Where complaint-for injuries to horse does not count on a willful' wrong, requested instructions relating to that theory of the case were abstract and properly refused.</p> <p>6. Railroads <&wkey;446(10) — Injury to Animal on Trestle — Question for Jury.</p> <p>In action for injury to a horse frightened by the train and running into a trestle, whether there was negligence in the operation of the train which proximately contributed to the injury held, under the’ evidence, for the jury.</p> <p>Mayfield, J., dissenting.</p>

<p>1. Mortgages <&wkey;>186(5) — Prior Mortgage— N otioe — Evidence.</p> <p>In suit to quiet title under Code 1907, § 5443 et seq., the parties claiming title through mortgages from a common source, evidence held to show that mortgagee in mortgage upon which respondents base their title was informed of prior mortgage upon which complainants based their title before and at the time he took the second mortgage.</p> <p>2. Evidence <&wkey;183(ll) — Secondary Evidence — Predicate— Sufficiency.</p> <p>Predicate laid held insufficient to establish loss, destruction, etc., of mortgage so as to make admissible certified copy from records in office of probate- judge.</p> <p>3. Ejectment <&wkey;117 — Judgment in Ejectment Suit as a Bar,</p> <p>That there was an adverse decision as to mortgagee through-which complainants claim in one ejectment suit would not give absolute title to respondents claiming through mortgagee under a later mortgage in view of Code 1907, § 3858, requiring two such judgments to bar suit.</p> <p>4. Quieting Title <&wkey;44(4) — Evidence of Title — Suffigency.</p> <p>In suit to quiet title under Code 1907, § 5443 et seq., the parties claiming title through mortgages from a common source, held, that respondents failed to connect themselves with the legal and equitable title or to show their legal or equitable right or claim thereto.</p> <p>5. Quieting Title <&wkey;12(9) — Who May Sue-One in Peaceable Possession.</p> <p>Under Code 1907, § 5443, one in peaceable possession under a claim of ownership, as distinguished from possession which is disputed, may sue to quiet title; but, where the possession as distinguished from the right of possession is disputed, the suit will not lie.</p> <p>6. Quieting Title <&wkey;44(l) — Shifting Burden of Proof.'</p> <p>In suit to quiet title, complainants’ showing of title and possession held sufficient to shift the burden to respondents to show actual possession.</p> <p>7. Quieting Title <&wkey;12(9) — Peaceable Possession-Scrambling Possession.</p> <p>Former possession of respondent’s ancestor or respondents before bill was filed and their claim of ownership held not to change the character of the complainant’s peaceable possession taken and maintained immediately preceding and at the time bill to quiet title was filed, nor make possession of complainants a “scrambling possession.”</p>

A. Steele, Judge. Bill by Mrs. S. H. Webb against the Globe Securities Company to set aside and cancel a mortgage. Decree for respondent, and complainant appeals.

<p>Appeal from Circuit Court, Barbour County ; J. S. Williams, Judge.</p> <p>Bill by Ray G. Irby against the Commercial National Bank. Decree sustaining demurrer to hill, and complainant appeals.</p> <p>The original bill was filed, by appellant, seeking the redemption of certain real estate described in the mortgage executed by the appellant to appellee on May 27, 1912, a copy of which mortgage is made an exhibit to the bill.</p> <p>The bill charged there was usurious interest in the mortgage debt, and sought its elimination, praying for a reference to the register for an accounting, etc., and offer on the part of the complainant to do equity.</p> <p>Respondent filed an answer denying there was any usurious interest charged in said mortgage indebtedness, and setting up that said mortgage was given by the complainant to the respondent to secure the purchase price of $12,340.79, paid by complainant as a purchaser at a foreclosure sale under the power contained in a certain mortgage previously executed on said property by the complainant’s father, L. E. Irby, to one Stella Guice, which mortgage had been duly transferred to the respondent. Attached to the answer and cross-bill was Exhibit B, which was the foreclosure deed made to complainant at the time of the purchase under the foreclosure sale. The answer was prayed to be taken also as a cross-bill, and that said mortgage be foreclosed by decree of the court.</p> <p>After the taking of considerable testimony by the parties, the complainant offered an amendment to the bill, setting up, in substance, as follows: That Ray G. Irby as administrator of the estate of L. E. Irby, deceased, be made a party complainant to the proceedings; that L. E. Irby, now deceased, in October, 1909, borrowed from one Stella Guice the sum of $8,876.20, evidenced by four promissory notes, due at various times, and which were secured by a mortgage on the real estate described and set forth in Exhibit A to the original bill, which mortgage was transferred very soon thereafter to the respondent bank. It is further averred that, while in form the transaction was a loan by said Stella Guice, yet in substance it was a loan by the Gommerical National Bank to said L. E. Irby, that said mortgage indebtedness of L. E. Irby to respondent bank was infected with usury, and that the usurious interest had accumulated to a large amount, and formed a substantial part of the mortgage debt at the time of the said foreclosure sale. It is then averred that the respondent bank wanted to hide the usury in such way as complainant, as administrator of the estate of L. E. Irby, could not successfully assert a plea of usury against said debt, and that said bank and complainant agreed that said mortgage should be foreclosed, and complainant was to bid at said sale the sum due by said L. B. Irby on the mortgage indebtedness, and, in the event complainant bid in. said property as the highest bidder at said sale, it was agreed that he was not to pay cash to said bank for the price so bid, but said bank was to take his note and mortgage on the same real estate; that said mortgage was foreclosed on May 27, 1912, and complainant, pursuant to said agreement and in accord with the information given him by the bank, bid the sum of $12,340.79, being the total amount, as he was informed, due by L. E. Irby to the bank, together with some other small items claimed to be due said bank by complainant; that on the same day a deed was executed, conveying to complainant the real estate, under the purported power contained in said mortgage, the consideration named in said deed being $12,340.79; that on the same day the complainant executed the note and mortgage back to said bank for $12,574.74, being the amount bid at said foreclosure sale, together with the sum of $233.-95, a portion of said difference being a part of the foreclosure expenses which had been omitted from the bid price.</p> <p>The bill charged that the real purpose of the proposed foreclosure of the said L. E. Irby mortgage, and agreement to resell to complainant, was to hide the usury contained in the said L. E. Irby indebtedness, and that, as a matter of fact, the debt remained the same, and was carried forward in said mortgage made by complainant, which is Exhibit A to the bill. The bill then sets up certain payments made by complainant, R. G. Irby, on the mortgage indebtedness (Exhibit A).</p> <p>The prayer of the amended bill was that the court decree the foreclosure proceedings of the said L. E. Irby mortgage were but a device to hide the usury charged in L. E. Irby’s indebtedness (Exhibit A to the original bill), and that in equity and substance it was a mere renewal or carrying forward of said indebtedness, and that said foreclosure proceedings be set aside and held for naught. The bill as amended sought an accounting, elimination of all interest, etc.</p> <p>The respondent demurred to the amendment, and to the bill, as amended, upon numerous grounds, in substance, that the amendment constitutes a departure from the case made by the original bill; that the original bill affirmed the foreclosure sale of the L. E. Irby mortgage, and the amendment seeks to set aside said foreclosure sale; that the amendment makes the cause multifarious, and introduces a new party as the personal representative of L. E. Irby, deceased, who has no interest in common or privity with R. G. Irby, individually, the original complainant Further, that any right on the part of Irby, as personal representative, to redeem or plead usury in the said Guice mortgage was abandoned and waived by his failure to do so before said mortgage was foreclosed, and because the foreclosure of said mortgage and the purchase at said sale by R. G. Irby, individually, for the full amount due tliereon, constituted payment and satisfaction of said Guice mortgage, and any usury in said mortgage is not now available to either R. G. Irby individually or to him as personal representative; that usury in the mortgage debt of L. O. Irby to Stella Guice —which was transferred to and foreclosed by the respondent — does not render usurious the mortgage given by complainant, R. G. Irby, to said respondent in settlement of the purchase price paid by said R. G. Irby at said foreclosure sale; and, further, that the facts set up in the amended bill as a basis for the prayer that the foreclosure proceedings be set aside would not constitute either fraud or any other ground that in law or in equity would warrant the setting aside of said foreclosure sale and deed. The demurrer was sustained, and from the decree sustaining the demurrer the complainant prosecutes this appeal.</p>

<p>1. Municipal Corporations <&wkey;705(10) — Streets — Special Lookout — Due Care.</p> <p>There was no duty resting on a bicycle rider to keep a special lookout for an automobile on an intersecting street, but only the general duty to exercise due care.</p> <p>2. Indemnity <&wkey;13(l) — Servant’s Liability to Master.</p> <p>A master held to pay damages for an injury inflicted on a third party by the wrong or negligence of his servant has a right of action to recover the amount of such damages from the servant.</p> <p>3. Judgment <&wkey;630 — Bar — Joint TortFeasors.</p> <p>While joint tort-feasors, as a master and his servant who wrongfully injure another, are liable jointly or severally, a judgment against one is not a bar to an action against the other for the same wrong, except in case of full satisfaction or what the law must consider as such.</p> <p>4. Judgment &wkey;>631 — Bar — Joint TortFeasors — Election to Accept Proceeds oe Judgment.</p> <p>Where a judgment was recovered against a company whose servant injured another, but nothing was done by the actual or presumptive authority of the injured person’s administrator to determine his election to accept the proceeds of the judgment against the employing company in place of his right of action against the servant who actually caused the injury, the administrator’s right of action against the servant was not barred, though the amount of the judgment against the employing company was paid to the clerk of the federal court in which it was recovered.</p> <p>5. Appeal and Error <&wkey;1056(l) — Harmless Error — Exclusion oe Evidence.</p> <p>In an administrator’s action for death against the servant who caused it, exclusion of evidence of the rendition of judgment in the federal court against the servant’s employing company and of the payment of judgment and costs to the clerk of the court held harmless to defendant servant, where it was clear that the servant relied on the clerk’s receipt of the judgment money in his official capacity as sufficient in itself to determine the administrator’s election of his remedy to recover against the company.</p> <p>6. Evidence <&wkey;>501(l) — Conclusion oe Witness.</p> <p>Where there was no statement of the facts, the mere conclusions of a witness were not admissible.</p>

<p>1. Courts <&wkey;93(l) — Following Decisions— Involved Title.</p> <p>It having been decided in prior cases that instruments identical in terms with the one sought to be canceled in the instant case, except as to parties and lands described, were subject to cancellation, where not executed because unilateral, and the rule of said cases having remained unimpaired for 12 years, it is too late to re-examine the question; such decisions having constituted a rule of property or muniment of title.</p> <p>2. Mines and Minerals <&wkey;58 — Unilateral Lease.</p> <p>A lease of land for mining purposes held lacking in mutuality, where lessee did not obligate himself to institute mining operations, and not to be binding where unexecuted.</p> <p>3. Contracts <&wkey;10(l) — Unilateral Contracts — Ratification.</p> <p>Though an executory contract is voidable and may be canceled because of absence of mutuality at the time of its execution, if the party in whose favor the unilateral promise is made accepts its performance, this supplies the element of mutuality, and gives a right of action.</p> <p>4. Pleading <&wkey;34(5), 126 — Negative Pregnant-Construction on Demurrer.</p> <p>Averment that there has not been any mining of coal upon said land for a long period of time has the effect of a negative pregnant, and imports an affirmation that prior to period mentioned coal mining was done, and on demurrer lease will be held executed and not subject to cancellation on the ground that it is unilateral and lacking in mutuality.</p> <p>5. Pleading &wkey;>34(4) — Construing Against Pleader.</p> <p>On demurrer the pleading assailed must be •construed against the pleader.</p> <p>6. Cancellation of Instruments <&wkey;37(6)— Pleading — Fraudulent Representations —Expression of Opinion.</p> <p>In suit to cancel mining lease upon the ground of fraudulent representations, averment that at time lease was executed, and before, lessor represented to plaintiff that mining operations would begin in the very near future, and that royalties from said operations would amount to a competence for plaintiff, was insufficient.</p>

<p>1. Subrogation <&wkey;23(3) — Mortgages—Husband and Wife.</p> <p>Plaintiff who held a mortgage executed by husband and wife, void under Code 1907, § 4497, because the wife held the title, was entitled to bo subrogated to the rights of a mortgagee holding a mortgage executed before the wife acquired title, where plaintiff’s mortgage was given to secure money paid by plaintiff in satisfaction of the prior mortgage, the prior mortgage being assigned to him, although the prior mortgagee’s attorney satisfied the .mortgage of record.</p> <p>2. Subrogation <&wkey;23(3) — Mortgages—Husband and Wife.</p> <p>Where plaintiff held a mortgage executed by husband and wife, void under Code 1907, § 4497, because the wife held the title, he was entitled to be subrogated to the rights of creditors, as to whom the transfer by the husband to the wife was declared null and void; plaintiff’s mortgage having been executed to secure him for money advanced to pay off the creditors.</p> <p>3. Mortgages <&wkey;5Sl(2) — Foreclosure—Attorney’s Fees.</p> <p>Where notes provided, makers “agree to pay cost of collecting this note, including reasonable attorney’s fee for all services rendered in any way in any suit,” and mortgage provided, “Grantors hereby agree to pay all cost, expense and attorney’s fees that may be legally incurred in collecting the indebtedness aforesaid, or in foreclosing this mortgage,” mortgagee was entitled to recover a reasonable attorney’s fee in a suit to foreclose.</p> <p>4. Mortgages <&wkey;513 — Foreclosure—Husband and Wife.</p> <p>When plaintiff held a mortgage executed by husband and wife, void as to part of the land, under Code 1907, § 4497, because title was in the wife, but plaintiff was entitled to be subrogated to the rights of a mortgagee, who had held a valid mortgage against the wife’s land, on foreclosure of the mortgages, the proceeds of the husband’s lands should be first applied on the indebtedness.</p>

<p>Original application for leave to file bill of review by the Louisville & Nashville Railroad Company, opposed by Theobald Mauter.</p>

Fort, Judge. Cliff Curry, alias, etc., was convicted of murder in the first degree, and appeals.

<p>Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.</p> <p>Trespass by John F. Hogg and others against Henry Biggin. Judgment for plaintiffs, and defendant appeals.</p>

B. Foster, Judge. Action by John L. Holloway and another against the Henderson Lumber Company, a corporation. From judgment for plaintiffs, they appeal, and defendant cross-appeals.

Action by Norborne It. Clarke and others, executors, against the Southern Railway Company. From judgment for plaintiffs, defendant appeals. Transferred from Court of Appeals under section 6, p. 450, Acts 1911.

Ceriorari to Court of Appeals. Action by W. E. Faust against ,the Central, of Georgia Railway Company. A judgment for plaintiff was affirmed by the Court of Appeals (82 South. 36), and defendant petitions for. certiorari.

<p>Petition for common-law writ of certiorari to the Public Service Commission to certify the record in the case of City of Birmingham against the Southern Bell Telephone & Telegraph Company, and before the Supreme Court to review and revise the finding of such Commission, or, alternatively, for the establishing of a bill of exceptions and review of such order upon appeal.</p>

Suit by E. R. Taber against John Figh and others to foreclose a mortgage and enforce a lien. Demurrers interposed by defendants were overruled, and they appeal.

<p>1. Bills and Notes &wkey;133 — Construction of Instrument — Construction as a Whole — Indorsement.</p> <p>Under the general rule requiring the whole of an instrument to be considered, it is necessary in construing an instrument in form of a note to consider a certain indorsement on the margin at the top relating to purpose and for what the instrument was given “as if it had been set forth in the body of the instrument.”</p> <p>2. Bills and Notes <&wkey;144 — Negotiability —Construction oe Terms at Execution.</p> <p>The determination of the negotiability vel non of an instrument must depend upon a construction of its terms at the time of its execution and delivery, not subsequently.</p> <p>3. Bills and Notes <©=M64 — Negotiability — “Conditional Promise” — Negotiable Instruments Act — “Reimburse.”</p> <p>A promissory note to a bank, dated April 17, 1914, due April 17, 1915, bearing on the margin at the top the indorsement, “This note is given to reimburse” the bank “for certificate of deposit No. 1187 for $5,000 due April 17, 1915,” in view of the term “reimburse,” which means to refund or pay back, bears on its face a recital that it was given for the bank’s promise to pay at a future time and not for money received, and renders the promise conditional within Negotiable Instruments Act, § 4960, and the note not negotiable under section 4958 et seq.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Conditional Promise; Words and Phrases, Reimburse.]</p> <p>Sayre, Somerville, and Gardner, JJ., dissenting.</p>

A. Pearce, Judge. Bolon Houston and others were convicted of murder, and they appeal. The objections to evidence and the facts sufficiently appear from the opinion. The following charges were refused the defendant.

Miller, Judge. Action by H. P. McGeever against Fallon O’Byrne for damages for injuries resulting from an automobile collision. Judgment for defendant, and plaintiff appeals. Plaintiff was injured by being thrown from defendant’s motorcar while riding therein as defendant’s guest; the car at the time being on the crossing of Sixth avenue at Twentieth street in the city of Birmingham.

<p>1. Statutes <&wkey;110%(l)—Title and Subject —Eradication oe Cattle Fever Ticks— Penalties and Provisions for Enforcement.</p> <p>Act Feb. 7, 1919, providing for statewide eradication of cattle or fever ticks, etc., which fixed penalties for its violation, and the mode for its enforcement, held not in violation of Const. 1901, § 45, requiring that “each law shall contain but one subject which shall be clearly expressed in its title”; the matter of penalties and mode of' enforcement being clearly allied and germane to the general subject.</p> <p>2. -Constitutional Law <&wkey;70(3)—Policy of Laws—Legislative Discretion—Review.</p> <p>The policy or propriety of the law for “the eradication of cattle fever ticks” is for the Legislature, and the courts have no power to control the exercise of legislative discretion.</p> <p>3. Constitutional Law &wkey;>73 — Enforcement of Act for Eradication of Cattle Fever Ticks in County—Executive Power-Judicial Interference.</p> <p>Whether or when an act for the eradication of cattle fever ticks shall be put into effect in a given county or district is left to the judgment of commissioners or expert boards, and not to the judgment or discretion of the courts, which cannot interfere so long as such officers act within the line and scope of the authority conferred.</p>

<p>Appeal from Circuit Court, Blount County; O. A. Steele, Judge.</p> <p>Action by C. C. Hullett against J. T. Hancock and another. Erom judgment for plaintiff, defendants appeal.</p> <p>Appellee brought this suit, against the appellants to recover damages for wrongfully and unlawfully committing an abortion upon the person of his minor daughter, resulting in permanent injury, as approximate consequence of which the plaintiff was caused to lose the services of his said minor child and was put to great expense for medical attention. The defendant Hancock is a physician; and Washburn, the other defendant, was the' one charged as being responsible for the condition of the plaintiff’s minor daughter. The evidence for the plaintiff tended to show that the defendant Wash-burn carried plaintiff’s daughter to the defendant Hancock’s house, and that by the use of instruments inserted into the womb the abortion was a few days thereafter produced ; that the daughter of the plaintiff was at the time 17 years of age, living at his house and assisting in the labors of the farm as well as of the household; that she was sick for some little time, dangerolisly so for a short period, requiring the services of physicians ; that she was for some time not able to perform any services; and that she is permanently injured and is able to do little work. The evidence for the defendants was in direct conili.ct with that for the plaintiff, to. the effect that no abortion was performed upon the girl, but merely an examination made in a careful and prudent manner to ascertain whether or not she was pregnant, and that nothing was done to produce an abortion. Evidence was also offered tending to show that her injuries were not serious, and that she was able to perform services. The issues of fact were submitted to the jury, resulting in a verdict in favor of the plaintiff for $200 against the defendants; and from this judgment the defendants prosecute this appeal.</p>

Locke, Judge. Bill by C. G. Goodwin against the city of Birmingham and the commissioners thereof to enjoin levy and collection of a 3-mill school tax and to enjoin the issuance of bcínds in pursuance thereof. From a decree sustaining demurrer to the bill, the complainant appeals.

<p>'Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.</p> <p>Petition by the State for the condemnation of an automobile alleged to have been used in illegal transportation of whisky, to which John Frazier was made respondent. From a decree condemning the automobile) respondent appeals.</p> <p>The evidence showed that the sheriff and .certain other persons found a still in the northern part of Bibb county, and that later on they saw John Frazier there, and that he ran away from the still, but was later caught, and that they found the car in question about a mile away from where the still was, but that no whisky was found in the car. It was shown further that Frazier stated at the still that morning that he was there after whisky, and said that, “if they had made the run the night before, we would not have caught him there that morning.”</p> <p>It appeared that John Frazier owned the car, that he lived at Johns in Jefferson county, and that he was there to> buy whisky.</p>

<p>1. Trusts <&wkey;160(2)—Failure — Want of Trustee.</p> <p>The maxim that trusts will not be allowed to fail for want of a trustee will be zealously adhered to.</p> <p>2. Trusts <&wkey;61(2)—Death of Testamentary Trustee—Effect on Trust Estates.</p> <p>Where a trustee under a will, certain items of which directed him to hold in trust the shares of testator’s daughter and granddaughter in the estate, collecting and applying the income from such shares for their benefit, died while acting in that capacity, such trust estates were not terminated nor were remainders attached to such estates defeated thereby; the powers of such trustee not being personal and discretionary so as not to pass to his successor.</p> <p>3. Trusts <&wkey;243 — Appointment of New Trustee—Discretionary Powers.</p> <p>The discretionary powers of a trustee founded in confidence and trust will not pass to a substituted trustee, but such powers and duties which require the exorcise of no personal judgment or discretion are attached to the office, and upon the death or removal of the trustee may be exercised by an appointee of the court.</p> <p>4. Trusts <&wkey;243 — Appointment of New Trustee—Discretionary Powers.</p> <p>Since a trust cannot be suffered to fail for want of a trustee, the court will appoint a successor, even where the trustee’s powers are entirely personal and discretionary and equitable rules will be substituted in place of arbitrary power.</p> <p>5. Trusts c&wkey;243—Management of Estate— Power of Successive Trustees.</p> <p>Powers granted to a testamentary trustee to use the principal of certain trust estates for carrying out the purposes thereof, should it be necessary, to dispose of any property held thereunder as he might think best, and to sell any property bequeathed or devised by the will as may be necessary in making a fair division, .are personal and discretionary powers which cannot be exercised by his successor, but only on authority of the court.</p> <p>6. Dower <&wkey;7—Estates Subject to Dower —Estate in Remainder.</p> <p>Where one having an undivided interest in an estate in remainder under his father’s will died leaving surviving a wife and posthumous child, such estate was not subject to dower in favor of the wife in view of Code 1907, § 3812.</p> <p>7. Dower <&wkey;7—Title of Husband.</p> <p>Under Code 1907, § 3812, dower attaches only when the husband has been beneficially seized of them in possession at some time during coverture.</p>

Bill by Vitus Lambert against J. M. Davis and another to construe the will of Jeremia Davis. From the decree, respondents appeal. After directing that his estate be divided into two equal parts, without specifying how or by whom, and giving and devising one part to his married daughter and one part to his son, then under age, with conditional limitations in each case, the will proceeds as follows: Item 5.

John H. Miller, Judge. Assumpsit by Loveman, Joseph & Loeh against J. W. McQueen. Judgment for defendant, and plaintiff appeals. . The action is on the common count, including one- for an account stated, and the complaint is accompanied by a sworn itemized statement of the account running from July 1, 1909, to July 6, 1914.

Action by Mrs. Mary E. Harrison, as administratrix of the estate of J. E. Mackey, against the Birmingham Southern Railroad Company for damages for the death of her intestate in a collision between an automobile in which intestate was riding and an engine of the defendant. Judgment for the plaintiff in the sum of $22,500, and defendant appeals. The pleadings and the facts sufficiently appear from the opinion of the court.

W. Ferguson, Judge. Action by Isaiah Washington, as administrator, against the Birmingham Southern Railroad Company for damages for the death of his intestate in a collision. Judgment for defendant, and plaintiff appeals. Plaintiff’s intestate was a passenger in a jitney automobile, and was killed by its collision with defendant’s train while crossing defendant’s track at a public road crossing. The complaint contains three counts.

Clair County; O. A. Steele, Judge. ' Action by Mrs. K. A. Campbell against the Birmingham & Atlantic Railroad Company for' damages for tbe death of her intestate in a crossing accident. Judgment for plaintiff, and defendant appeals. Most of tbe questions decided sufficiently appear from the opinion.

<p>Appeal from Circuit Court, Conecuh County; A. E. Gamble, Judge.'</p> <p>Bill by J. J. Potts against Court of Commissioners of Conecuh County and others. From judgment for defendants, plaintiff appeals.</p>

Martin, Judge. Action between J. R. Patterson, plaintiff in execution, Marion Gilliland, defendant in execution, and Mrs. S. E. Gilliland, claimant. Judgment for claimant, and plaintiff appeals.

Frank Rickerson was adjudged guilty of contempt, and petitions for writ of certiorari to the judge of the Eleventh Judicial Circuit.

Petition by A. G. Ward, as president, etc., for certiorari to the Court of Appeals to revise the judgment thereof (82 South. 660), affirming a judgment of the circuit court awarding a peremptory writ of mandamus, requiring petitioner to draw a warrant upon the county treasurer in favor of the relator, M. I. Goldsmith, for an amount alleged due for salary as circuit court bailiff.

<p>1. Municipal Corporations i&wkey;57—Powers of Corporation.</p> <p>A municipal corporation may exercise only the powers granted in express terms, those necessarily applied in or incident to the powers expressly inferred, and those indispensably necessary to the accomplishment of the declared objects and purposes of the municipality.</p> <p>2. Municipal Corporations <&wkey;910—Hospitals—Bonds.</p> <p>The city of Montgomery in 1908 had ample authority to aid, establish, set up, and regulate hospitals for the city, and to issue and sell bonds for such purposes, an election having been held in which the establishment of a hospital and tho issuance of bonds for such purposes was voted for, under Acts 1907, p. 865, § 143 (Code 1907, § 1277) Gen. Acts 1903, p. 59 (Code 1907, § 1421).</p> <p>3. Municipal Corporations <&wkey;48(2)—Bond Issues—Election—Subsequent Change in Form op Government.</p> <p>Where, in an election in 1908 it was voted in the city of Montgomery that the council he authorized to issue bonds to establish a hospital, there was nothing to prevent the issuance of the bonds in 1919, and. the establishment of the hospital, notwithstanding that the form of government was changed in 1911 and is now governed by a board of three commissioners, under Acts 1907, p. 865, § 143 (Code 1907, § 1277), Gen. Acts 1903, p. 59 (Code 1907, § 1421), and Gen. Acts 1909 (Sp. Sess.) p. 188, § 2.</p> <p>4. Municipal Corporations <&wkey;918(l) — Bonds—Statutes.</p> <p>Gen. Laws 1919, p. 57, limiting the time for attacking validity of elections held by a municipality for the purpose of issuing bonds or levying taxes, is remedial and retroactive, and applies to the election of December 14, 1908, in the city of Montgomery, in which it was voted to authorize the city to issue bonds to establish a hospital, and it was proper to issue such bonds in 1919.</p>

Merrill, Judge. Bill by W. D. Henderson against Essie C. Porter for the sale of lands for division. From the decree rendered, respondent appeals.

Circuit Court, Covington County; A. B. Poster, Judge. Bill by J. K. Everett against Julia G. Pick-ens and others, to enjoin execution of judgment in ejectment. Prom a decree denying relief and dismissing the bill, complainant appeals.

<p>Appeal from Circuit Court, Colbert County; C. P. Almon, Judge.</p> <p>Suit in equity by Ferdinand Funke against J. M. Elledge and another. From a decree for complainant, respondents appeal.</p>

’Appeal from. Circuit Court, Lauderdale County; C. P. Almon, Judge. Petition by the State, on relation of W. J. Kernachan, for quo warranto to determine the right of S. S. Roberts to exercise the office of all time, county health officer. From judgment of nonsuit, relator appeals. Transferred from Court of Appeals under section 6, p.' 449, Acts 1911.

<p>Certiorari to Court of Appeals.</p> <p>Action by D. S. Lacey against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appealed to the Court of Appeals, which affirmed the judgment (82 South. 636), and defendant brings certiorari. '</p>

<p>Appeal from Circuit Court, Monroe County ; Ben D. Turner, Judge.</p> <p>Mandamus by the State, on the relation of T. W. Bussell, as Sheriff of Monroe County, to compel M. McFountain, as Judge of Probate and ex officio Judge of the County Court of Monroe County, to prepare a proper bill of costs in the case of State v. George Gandy, and make his bill of costs in accordance with the prayer of the petitioner. From a judgment overruling demurrers to the petition, the'Judge appeals.</p> <p>The case made by the petitioner is that Bussell is the duly elected sheriff of Monroe county, and that M. McFountain is the probate judge of Monroe county, and by virtue of his office is judge of the county court of Monroe county, but one George Gandy was charged under proper affidavit and warrant with petit larceny, said warrant being returnable to said county court; that relator in his official capacity arrested said Gandy under said warrant, and after the arrest admitted said Gandy to bail as provided by law, conditioned on his appearance at the next term of the county court of Monroe county; that at the time the case was regularly set for trial said Gandy appeared, and after the case was heard by the court it was ordered and adjudged that the same be nol. prossed upon the payment by the defendant of the cost; that the said judge proceeded to make out the bill of costs and issue execution thereon, allowing relator the sum of $1 for serving the warrant or writ of arrest and only 50 cents for taking and approving bail bond in said court.</p> <p>Belator avers that under section 6638, Code 1907, as amended by Acts 1911, p. 41, relator, as sheriff, is entitled to the sum of $2 making said arrest and the sum of $1 for taking and approving said bond, while the judge contends that in all misdemeanor cases, prosecuted and disposed of in the county court, relat- or is entitled under section 6655, Code 1907, to the sum of $1 for making arrest and only 50 cents for taking and approving bail bond, and as such judge he refuses to correct the bill of costs and to allow relator proper fees for the services rendered.</p> <p>The demurrer asserts that it affirmatively appears from the petition that relator is not entitled to the fees claimed; that it affirmatively appears from the petition- that the relator has been allowed the fees authorized by law in such cases. It affirmatively appears from the petition that section 663S, Code 1907, as amended by Gen. Acts 1911, p. 41, has no application to criminal cases tried in the county court of Monroe county.</p>

<p>Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.</p> <p>Action by Charles P. Carpenter against the Gulf States Steel Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Franklin County; C. P. Almon, Judge.</p> <p>Bill by W. A. Orman against James E. Wilson and Charles Wilson to dissolve a partnership and administer its assets, for an accounting, and to charge respondents with money received for certain land, and for partition of land. From a decree dismissing the bill, complainant appeals.</p> <p>The allegations of the bill are that in 1880 complainant and respondents formed a partnership under the name and style of Wilson Bro. & Co., for the purpose of conducting a mercantile company at Bellgreen, under an agreement that respondents should furnish the capital and complainant would conduct the business for a small salary, and that the three would share equally in the profits and losses of the business, and that, while there was no agreement as to the time when the partnership would terminate, on January 1, 1890, the business was closed out by the sale of the entire stock of merchandise to Wilson & Co., another partnership then existing at Russellville, Ala., and composed of the two respondents herein. It is then alleged that this sale did not dissolve the partnership of Wilson Bro. & Co., but that the partnership relation thereafter continued, and the notes, accounts, and lands were left in charge of complainant for the purpose of collecting and paying debts and otherwise managing jthe assets; that in 1893 complainant moved from Bellgreen to Russellville, but continued to manage the affairs of the partnership of Wilson Bro. & Cb. for a consideration of $75 per month as compensation for his service; and that he continued to draw this salary for about four years, but since that time has drawn no further salary, notwithstanding he continued to manage and control the same and devoted much time to the preservation of the assets.</p> <p>It is further alleged that complainant had a personal account with Wilson & Co. and also had an account with Wilson Bro. & Co.; that the books of tbe latter company were kept by complainant, and are still in charge of complainant; while the books of Wilson & Co, are kept by and still in charge of that firm; and that the accounts extend over a period of 35 years and are intricate and complicated, and an accounting is necessary to ascertain the true status between the parties hereto. It is further alleged that the partnership of Wilson Bro. & Co. acquired title to a large acreage of land, and also had notes and mortgages in account totaling about $30,000, and owed but few debts, which were soon thereafter paid, and that said firm acquired other real estate in the payment of debts due it, and that the real estate has greatly increased in value and has from time to time been sold, said sales being made and conducted by complainant for and on behalf of the firm and being signed by the individual members thereof; that the purchase money received for such sales was turned over to respondents and amount to a large sum, for which they are accountable to complainant. Facts are alleged tending to show that all parties to the partnership treated the same as continuing up to the time of the filing of this bill, such as execution of deeds by the individual members of the firm, the bringing of suits, and the filings of bills in the names of the parties composing the firm and acts of similar character. The bill also alleges that acquisition of other lands through debts belonging to the firm of Wilson Bro. & Go., but title taken the in the firm of Wilson & Go. The bill also alleges the frequent demands for settlement and the fact that complainant is entitled to'participate in a division of the assets amounting to $60,000 or $70,000.</p>

<p>Appeal from Circuit Court, Madison County; Robert O. Brickell, Judge.</p> <p>Action by Sallie N. Overton against tbe United Order of tbe Golden Gross. Judgment for plaintiff, and defendant appeals.</p>

B. Poster, Judge. Bill by S. O. Davis against W. B. JTolmar for the spe'ffie performance of a contract for the sale of real estate. Decree for respondent, and complainant appeals. The contract was for the sale of 80 acres of land, the first contract being dated December 15, 1915, with one note payable October 1, 1916, in the sum of $1,728.

<p>Appeal from Circuit Cojart, Etowah County ; O. A. Steele, Judge.</p> <p>Suit by 8. A. Kelly against the Altoona Coal Company. From judgment for plaintiff, defendant appeals.</p> <p>Appellee, an employe of appellant company, was injured by a rock falling from the roof of the mine of said company, while at work . therein, engaged in “robbing an entry of said mine,” and brought this suit to recover damages for such injuries.</p> <p>The counts of the complaint upon which the cause of action was submitted to the jury rested for recovery upon the provisions of section 38 of the act approved April 18, 1911 (Gen. Acts 1911, p. 500). There was verdict and judgment for the plaintiff, from which the defendant prosecutes this appeal.</p> <p>The evidence for the plaintiff tended to show: That he was working for the defendant company in its coal mine, engaged in “robbing an entry.” That “robbing [an entry] means that they come along and take down pillars that have been left for the coal there is in them”—being done after the mines are mined out. That he was “robbing” an entry in the mine when a rock fell from the roof, resulting in his injuries which are detailed, and that the roof should have been propped. That about 18 hours before the accident occurred on Friday evening, a wagon load of props and timbers was brought to the mouth of the mine. That the plaintiff saw them, but did not ask that any of the timbers be brought in, and did not mark any of them for that purpose. The plaintiff further testified:</p> <p>“There were no timbers marked by me that day that were not brought in. I hardly ever marked any timbers at all. All I had marked wore brought in, so far as I know. I just told the motorman to fetch us timbers such as was on the yard that we could use. All the trouble about the timbers was that they were a little too long; otherwise the dimensions were proper. I made no requisition for timbers for any particular size or length. I did not designate the length I wanted my timbers. * * * When I asked for timbers, I did not ask for them to be delivered at any particular place, nor of any particular length.”</p> <p>The defendant requested the affirmative charge, which was refused.</p>

Merrill, Judge. Action by Georgia Ann Williams against the Central of Georgia Railway Company for damages for injuries while a passenger. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

<p>, Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Action by Albert F. Wilson against the Montgomery Bank & Trust Company for a deceit in the sale of stock. From adverse rulings on pleadings, the plaintiff took a non-suit, and appealed.</p> <p>The complaint is as follows:</p> <p>(1) The plaintiff claims of the defendant the sum of $1,500 for this, to wit, that defendant, being insolvent or greatly embarrassed and unable to conduct'its, usual business, and being well aware of this fact, induced the plaintiff to buy from it $2,000 worth of its stock at par (for $2,000), when in fact said company was in an insolvent and failing condition, by representing to him, which representations plaintiff relied on through its agents, that the company was solvent and in a prosperous condition, when in fact it was then practically insolvent or in a failing condition, and said stock was not worth more than 50 cents on the dollar, whereby plaintiff sustained a loss of, to wit, $1,500—the said stock was bought on, to wit, the 27th day of January, 1910, but plaintiff did not discover the facts showing the falsity of said representations until within six months last passed; that said stock declined in value from its purchase to this date, and is now practically worthless; that plaintiff after his purchase sold the stock at about $700 or $800, which was the market price at that time—all to the damage of the plaintiff $1,500, for which he sues.</p> <p>The replication is in the following words:</p> <p>Plaintiff replies to the plea of the statute of limitations of one year that the defendant, from the time plaintiff’s demand arose, so as to start the statute of limitations against it, had against this plaintiff an existing debt, induced by promissory note on which payment was secured within less than one year before the commencement of this suit, and this plaintiff’s cause of action was a legal existing claim against said defendant’s said debt due to it at the time said cause of action accrued to said defendant in this case, and that judgment has resulted in the claim of ■said Montgomery Bank & Trust Company’s claim which plaintiff in this case paid, and this suit was commenced within one year from the rendition of said judgment, and plaintiff failed to plead his said set-off thereto by accident, and now asserts it by independent suit.</p> <p>The following demurrers were filed to the replication:</p> <p>(1) The existence of defendant’s claim and suit thereon against the plaintiff did not prevent plaintiff from prosecuting a suit on the demand herein claimed.</p> <p>(2) The facts alleged in said replication did not postpone the beginning of the time from which the statute of limitations began to run. It does not set out the facts showing that plaintiff failed to prove set-off by accident in the suit referred to therein.</p>

Brickell, Judge. Suit by Mary L. Looney against R. L. Francis and others, wherein there was final decree for sale of certain lands, with directions to the register to sell the lands and report the sale for confirmation.

Action in assumpsit by the Baldwin County Producers’ Corporation against Adam Eiskhorn to recover a 3 per cent, commission on certain gross sales made by Eiskhorn to a person other than plaintiff. The defendant had judgment in the trial court, and on appeal to the Court of Appeals this judgment was affirmed. 81 South. 862. Plaintiff brings certiorari to review and revise the judgment rendered by the Court of Appeals.

Petition by the State of Alabama, on the relation of J. Q. Smith, Attorney General, for writ of prohibition or other remedial writ directed to Hon. Leon McCord, as Judge of the Circuit Court of Montgomery County, requiring him to vacate an order overruling petitioner’s motion to strike certain interrogatories propounded to the State of Alabama by the defendant in the case of State of Alabama v. Maryland Casualty Company.

Ben Edmunds was convicted of a violation of the prohibition law, and appealed to the Court of Appeals, which affirmed (81 South. 847), and defendant petitions for certiorari. The petition is for writ of certiorari or other remedial writ as may be necessary to secure the revision of the judgment of the Court of Appeals, and sets out the return of an indictment by the grand jury of Russell county October 2, 1918, charging petitioner with a violation of the prohibition law.

W. Ferguson, Judge. Action by Elias Willingham against the Birmingham Railway, Light & Power Company, for damages for injuries suffered while a passenger. Judgment for the defendant, and plaintiff appeals.

W. I-Iaralson, Juge. Ejectment by W. R. Wade against T. Y. Daniel and others. Judgment for plaintiff, and defendants appeal. The land is described as fractional northeast quarter of southwest quarter, section 23, township 8 south, range 9 east, situated in Cherokee county, Ala.

<p>Appeal from Circuit Court, Lee County; Lum Duke, Judge.</p> <p>Action by J. P. Robertson against the Central of Georgia Railroad Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Circuit Court, Crenshaw County; A. E. Gamble, Judge.</p> <p>Bill by the Folmar Mercantile Company against the Town of Luverne, to abate a public nuisance. From a decree for respondent complainant appeals.</p>

Miller, Judge. Action by Mrs. Etta Tally against the Louisville & Nashville Railroad Company for damages for the death of her husband.' Judgment for plaintiff, and defendant appeals.

<p>1. Limitation of actions <&wkey;70(2) — Disability of JOINT TENANT ; BIGHTS OF OTH- * er joint tenants saved.</p> <p>Complainant in suit for partition by sale being a minor recently attaining majority, if be may recover bis moiety of the property^ the rights of the other joint tenants are saved from the operation of the statute of limitations or of the rule of repose by the infancy of the minor complainant.</p> <p>2. Tenancy in common <&wkey;15(2) — No CHANGE OF TENANCY WITHOUT NOTICE TO OTHER COTENANTS.</p> <p>Being in possession, a cotenant cannot change his tenancy without notice to the other cotenants, as a cotenant out of possession may rely on the possession of one of bis cotenants as being for all until an actual ouster is shown.</p> <p>3. Tenancy in common <&wkey;>14 — Disseisin; TAKING BY ONE TENANT OF RENTS AND PROFITS.</p> <p>The mere fact that a cotenant in possession has taken all the rents and profits does not show ouster of his companions.</p> <p>4. Tenancy in common <&wkey;30—Redemption FROM MORTGAGES AND TAX SALES BY COTENANT.</p> <p>A redemption of the lands from mortgages and tax sales by one cotenant, or a purchase before the time for redemption has expired, and the discharge of other liens, will inure to the benefit of all cotenants.</p> <p>5. Tenancy in common <&wkey;13 — Defeat of RIGHTS OF COTENANTS BY FORECLOSURE.</p> <p>If a cotenancy is destroyed by foreclosure and expiration of the time for redemption, or by a sale for taxes and expiration of the time within which to redeem, or by a long-continued adverse and hostile possession of a tenant denying the title of his cotenants and the knowledge of the hostile claim actually known to his cotenants, the rights of such cotenants are defeated, and a subsequently acquired title and possession of the land by a former cotenant will be in his individual capacity.</p> <p>6. Tenancy in common <&wkey;9 — Failure to CONTRIBUTE TO REDEMPTION OR REPURCHASE.</p> <p>Failure of cotenants to contribute as agreed to the price for redeeming or repurchasing the land did not of itself destroy the cotenancy.</p> <p>7. Tenancy in common <&wkey;15(10) — Evidence NOT SHOWING TERMINATION AND OUSTER.</p> <p>In suit for partition between cotenants, evidence hold insufficient to show a termination of cotenancy and ouster of cotenants by one of them, or that a claim of exclusive and hostile ownership by such one was brought home to the others by actual knowledge, not by mere constructive notice, in such a way as to terminate the tenancy.</p> <p>8. Taxation <&wkey;734(l) — Tax sales void WITHOUT SHOWING OF JURISDICTIONAL FACTS.</p> <p>Tax sales are void unless it affirmatively appears from the record that jurisdictional facts exist to give the court right and power to order sale of the specific lands.</p> <p>9. Partition <&wkey;87 — Reimbursement of COTENANT FOR EXPENDITURES.</p> <p>A cotenant in suit for partition being treated as trustee of the title for the benefit of the several cotenants, on final reference will be allowed due reimbursement out of the use, occupation, etc., of the property for his lawful ■ expenditures in protecting it against the lien of taxes and for valuable improvements made in good faith.</p> <p>10. Tenancy in common <&wkey;30 — Redemption OB REACQUIREMENT BY SINGLE TENANT INURES TO ALL.</p> <p>Redemption or reaequirement by one eotenant of land -which, had belonged to all, before they were barred by statute, inured to the benefit of all the cotenants, regardless of the subsequent intent of the redeeming or reacquiring co-tenant.</p> <p>11. Taxation <&wkey;734(4)—Sale void for insufficiency of description.</p> <p>A tax sale of land described as “240 acres in Madison X Roads Beat” was a nullity.</p> <p>12. Limitation of actions <&wkey;72(3)—Rights OF INFANT COTENANT. ,</p> <p>The claim, or title, or possession of a purchaser at tax sale of lands of cotenants, and that of a single cotenant, were not conclusive of another infant cotenant’s right to sue for the land until the expiration of the three years allowed by Code 1907, § 4840, after the infant cotenant had attained his majority.</p> <p>13. Partition <&wkey;83—Jurisdiction to give COMPLETE RELIEF.</p> <p>A court of equity, having jurisdiction of the subject-matter and-of the parties for the primary purpose of a sale for distribution among joint tenants, will retain and exercise such jurisdiction to give complete relief to a cotenant who has another interest in the land.</p> <p>14. Descent and distribution &wkey;>52(3) — Right of surviving husband.</p> <p>Where decedent left a husband and infant daughter, the infant dying before decedent’s sister, the husband took no further interest on the death of decedent’s sister, the sister’s one-sixth undivided interest in land descending by statute to her brothers and sisters, or their descendants ; her brothers and sisters taking as next of kin of the aunt.</p> <p>15. Executors and administrators <&wkey;439 —Personal representative or administrator AD LITEM a NECESSARY PARTY IN PARTITION.</p> <p>In suit for partition by a cotenant, the personal representative of the estate of a deceased cotenant should have been made a party, or an administrator ad litem should have been appointed by the court, as provided by Code 1907, § 2818, in the absence of proof corresponding with the allegations of the bill that there were no debts of the estate of decedent, and that she died intestate, allegations which should have been proved to enable the court to ascertain whether her lands descended to and vested in certain nephews and nieces freed from the necessity and burden of formal administration in a court having jurisdiction.</p> <p>16. Appeal and error <&wkey;187(3)—Notice of ABSENCE OF MATERIAL PARTY BY SUPREME Court.</p> <p>The absence from the cause of a material party is such defect as the Supreme Court will take notice of ex mero motu.</p> <p>17. Tenancy in common &wkey;>15(10)—Recognition OF RIGHTS OF OTHERS BY COTENANT HOLDING ADVERSELY.</p> <p>A reasonable and actual presumption is that when a tenant in common in possession recognizes a cotenant’s right in or title to the land he ceases to be an adverse holder, no matter how hostile his previous possession has been; the recognition of the existence of cotenancy as to another one of the cotenants having effect to put them all in possession of their shares.</p>

Miller, Judge. Action by S. A. Williams against the Parisian Company, Incorporated, and another. Erom a judgment for plaintiff, defendants appeal. Suit for malicious prosecution by S. A. Williams, appellee, against appellant, the Parisian Company, and its manager, Laurens Block, resulting in a verdict and judgment for the plaintiff in the sum of $3,000, from which judgment the defendants prosecute this appeal.

B. Smith, Judge. Action by Ben F. Barbour against D. J. Poncelor in deceit and breach of contract. Because of adverse rulings on‘the pleading, plaintiff took a nonsuit and appeals.

Api>eal from Circuit Court, Walker County; J. J. Curtis, Judge. ' Bill by Kuss Setzer as administrator, against the Burnwell Coal Company and others, to set aside a conveyance as fraud on creditors. Decree for complainant, and respondents appeal.

Kyle, Judge. Action by Guthrie Harper against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appealed. Transferred from Court of Appeals, under section 6, p. 449, Acts 1911. .

A. Pearce, Judge. Petition for writ of mandamus by Terry, Briggs & Co. against the Bank of Henry; the First National Bank of Abbeville being substituted as respondent. Fro.m an order awarding the writ, respondent appeals.

S. Windham, Judge. Petitions by Mrs. Margaret I. Carden and Mrs. Birdie L. Lewis for letters of guardian’sliip of the person and estate of Albert Winters Loftin. From a decree awarding letters to Mrs. Margaret I. Carden, the infant, by his next friend, Mrs. Birdie L. Lewis, appeals. The facts sufficiently appear from the opinion.

Petition of J. J. Stanley for writ of certiorari to the Court of Appeals to review and revise the judgment in said court, reversing and remanding the case of W. A. Denson v. J. J. Stanley, 84 South. 770-

<p>1. Telegraphs and telephones <&wkey;47—Construction OE CONTRACT FOE SENDING MONEY AS TO EMPLOYMENT OP OTHER AGENCIES.</p> <p>A paragraph of an order for sending money by telegraph, providing that, “when the company has no office at destination authorized to pay money, it shall not be liable for any default beyond its own lines, but shall be the agent of the sender, without liability, and without further notice, to contract on the sender’s behalf with any * * * bank or other medium for the transmission and final payment of this order,” bound the parties, and did not refer to the absence of an ordinary telegraph office, but to one without authority to pay money, and in such case authorized the transmission of the money through banks which were constituted sender’s agent, and for whose negligence the telegraph company would not be liable. »</p> <p>2. Telegraphs and telephones <&wkey;47—For TRANSMISSION OP MONEY BY WIRE COMPANY MAY DETERMINE WHICH SHALE BE MONEY ORDER OFFICES.</p> <p>A telegraph company may reasonably and validly stipulate, in an agreement for transmitting money by wire, that, if sent to a place where the company has no agency authorized to pay money, the company may employ a banij as the agent of the sender, and will not be responsible beyond its lines or for the bank’s neglect, and the company may in the regular course of its business determine which of its offices will constitute money order offices with reference to such contracts.</p> <p>3. Telegraphs and telephones <&wkey;47—Liability FOR NEGLIGENCE OP AGENT POR SENDER OP MONEY BY WIRE.</p> <p>Under a contract for transmission of money by wire, providing that the company shall not be liable beyond its lines, and authorizing it to employ banks as the sender’s agents, where the company did not have a money order office, the company was only liable for a culpable failure diligently to exercise as sender’s agent the authority to employ a suitable bank, as a further medium to execute a final payment, and any default of the bank is not chargeable to the company.</p> <p>Somerville, Gardner, and Thomas, JJ., dissenting.</p>

Merrill, Judge. Edgar C. Caldwell was convicted of murder In the first degree and sentenced to death, and he appeals. The facts sufficiently appear from the opinion of the court, as do most of the excepted-to portions and of the court’s oral charge.

M. Miller, Judge. Action by C. H. Dozier against the Vizard Investment Company for damages for foreclosing mortgage. Judgment for defendant, and plaintiff appeals.

Action by William A. Wright, as Insurance Commissioner of the State of Georgia, against W. T. I-Iix in assumpsit. Judgment for defendant, and plaintiff appeals. The allegations of the complaint sufficiently appear from the two opinions.

- Locke, Judge. Bill by Joseph R. Tate, as solicitor of the Tenth Judicial Circuit of the State, against B. B. Dowda, to condemn property because of manufacture of prohibited liquors thereon. Prom decree overruling demurrer to the bill, respondent appeals. The style of the bill is the State of Alabama v. One House and Two Lots and B. B. Dowda, and it is brought by Joseph R. Tate, as solicitor for the Tenth judicial circuit, wherein the real estate is situated.

<p>1. Appeal and error &wkey;>l—Appeals purely CREATIONS OE STATUTE.</p> <p>There is no right of appeal in the absence of a statute creating such right.</p> <p>2. Prohibition <&wkey;10 (2)—Entertaining appeal WITHOUT RIGHT.</p> <p>Where the statute gives no right of appeal to the circuit court, such court can acquire no jurisdiction to review or revise where an appeal is attempted, and any action on the part of such court or the judge thereof to that end would be coram non judice and would be arrested on timely application to the Supreme Court for a writ of prohibition.</p> <p>3..Taxation &wkey;>493(l)—Optional to appeal TO CIRCUIT COURT OR DEMAND AN ARBITRATION.</p> <p>It. is purely optional, under Acts 1915, pp. 386, 418, § 77, with a taxpayer dissatisfied with the action of the county board of equalization, to demand an arbitration, and he may appeal instead under section 292.</p> <p>4. Taxation <&wkey;493(4)—Right of appeal FROM REVALUATION; “REVALUATION”; “REASSESSMENTS.”</p> <p>The words “revaluation” and “reassessments” are used interchangeably in Acts 1915, p. 386, and a taxpayer may appeal from the action of a county board in increasing the valuation of his property.</p> <p>[Ed. Note.—Por other definitions, see Words and Phrases, Second Series, Reassessment.]</p> <p>On Rehearing.</p> <p>5. Prohibition &wkey;>29—Finding of fact of court sought to be prohibited conclusive.</p> <p>On application for prohibition directed to a judge of the circuit court to prohibit him from taking jurisdiction of an appeal from a revaluation of property by the county board of equalization, the Supreme Court cannot presume, as against a finding of the circuit judge, that the county board acted in pursuance of an order of the state board made by virtue of Acts 1915, pp. 386, 426, § 97, the assessment from which the appeal was prosecuted failing to show on its face that it was made in pursuance of an order of the state board, and there being no proof aliunde the face of the assessment records to show that the county board in making the particular assessment or revaluation appealed from was acting by virtue or in pursuance of an order of the state board.</p> <p>6. Taxation <&wkey;452—Appeals taken from ANY FINAL ASSESSMENT:</p> <p>Acts 1915, p. 386 et seq., did not repeal Revenue Act 1911, § 36c, providing that an appeal will lie from any final assessment made by any officer, board, or tribunal charged with the duty of revising or reviewing assessments.</p>

' Circuit Court, Montgomery County; Leon McCord, Judge. Action by Miriam N. Kirven against S. C. Dawsey and. others. Judgment for ifiaintiff, and defendants appeal. The certificate of a foreign notary must he authenticated by his seal. Ala. National Bank v. Chattanooga Door & Sash Co., 106' Ala. 663, 18 South. 74. Such a certificate must recite the seal. Wetmore v. Laird, 5 Biss. 160, Fed. Cas. No. 17467.

<p>Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.</p> <p>Action by T. S. Jones against Gulf States Steel Company for personal injuries. Judgment for plaintiff, and defendant appeals.</p> <p>The staging or scaffold which fell and injured employé was a mere temporary staging, and not a part of the ways, works, machinery, or plant of the defendant. 1 Dresser, p. 228, § 46; 2 Dresser, p. 91, § 46; Holland-Blow Stave Go. v. Spencer, 16 Ala. App. 227, 77 South. 65; Tobler v. Pioneer M. & M. Co., 166 Ala. 482, 52 South. 86; Caldwell-Watson E. & M. Co. v. Watson, 183 Ala. 326, 62 South. 859; Woodward Iron Co. v. Wade, 192 Ala. 651’, 68 South. 1008; Sloss-Sheflleld S. & I. Co. v. Terry, 191 Ala. 476, 67 South. 678; Langhorne v. Simington, 188 Ala. 337, 66 South. 85; Adasken v. Gilbert, 165 Mass. 443, 43 N. E. 199; Brady v. Norcross, 172 Mass. 331, 52 N. E. 528; Callahan v. Phillips Academy, 180 Mass. 183, 62 N. E. 260; Feeney v. York Mfg. Co., 189 Mass. 336, 75 N. E. 733; Nichols v. Boston & M. R, Co., 206 Mass. 463, 92 N. E. 711; Thompson v. City of Worcester, 184 Mass. 354, 68 N. E. 833.</p>

Action by T. E. Lovejoy, as administrator of the estate of W. C. Lovejoy, against tlie Mutual Life Insurance Company of New York on a life insurance policy. Judgment for plaintiff, and defendant appeals. There was but one count which declared upon the policy, setting the same out in full.

W. Haralson, Judge. Bill by Jerry F. Tumlin and others against Julia C. Tumlin and others for partition of land or sale for division. From decree for complainants, respondents appeal. For the facts in this case, see the opinion rendered in the case of Tumlin v. Tumlin, 195 Ala. 457, 70 South. 254.

A. Sharpe, Judge. Ejectment by Alberta. Drake against Jim Ellis. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear in the opinion.

<p>Appeal from Circuit Court, Elmore County; Gaston Gunter, Judge.</p> <p>Action by the Sturdivant Bank against the Bank of Eclectic. Decree for plaintiff, and defendant appeals..</p> <p>The bill in this case was filed by the Stur-' divant Bank, a partnership, against the Bank of Eclectic (appellant), the Elmore County Bank, and others. The bill, in substance, charges, as follows: The Elmore County Bank, prior to December 7, 1916, was engaged in the general banking business, with H. S. Holloway as president and G. A. Collins as cashier, and that on said date the Bank of Eclectic was also engaged in a general banking business; that in 1916 said Holloway, president of the Elmore County Bank, was engaged in buying cotton in Dadeville, Ala., employing one T. J. Gilliland as his agent for that purpose; and the said Holloway, desiring to arrange for the necessary funds for his agent with which to make his purchases, and to provide a checking account upon which his agent could check in payment for cotton bought by him from day to day, requested the complainant bank to cash drafts drawn by said agent on the Elmore County Bank, assuring complainant that all of said drafts would be honored by said bank. The said Elmore County Bank, by its cashier, gave to complainant the following agreement or letter of credit:</p> <p>“Elmore County Bank.</p> <p>“Eclectic, Ala., Sept. 29, 1916.</p> <p>“Sturdivant Bank, Dadeville, Alabama—Gentlemen: This is to’advise that we will honor drafts of T. J. Gilliland for his daily cotton purchases in your city. You may send these drafts direct or through regular channel and we will remit them at par.</p> <p>“Yours very truly,</p> <p>“G. A. Collins, Cashier.”</p> <p>It is averred that under this letter of credit the said agent, between the above date and the 18th of October, 1916, drew a number of drafts on the Elmore County Bank through the complainant bank, upon which complainant advanced the cash to said Gilliland, placing the same to his credit on the books of the complainant bank, which amounts were checked out by said agent in making his purchases; said drafts so drawn being paid to complainant by the Elmore County Bank.</p> <p>On October 18, 1916, the said Gilliland drew a draft on the Elmore County Bank for $1,000, which complainant cashed, placing the same to his credit, and said amount was checked out by him in the purchases of cotton. It is further averred that complainant sent the draft to the Elmore County Bank for payment, in accordance with its previous agreement with the president of said bank and the letter of credit above set out, and received from said bank the following acceptance:</p> <p>“Elmore County Bank.</p> <p>“Eclectic, Ala., 10/20/16.</p> <p>“The Sturdivant Bank, Dadeville, Alabama— Gentlemen: This is to advise that we are today remitting $1,000.00 to the Chase National Bank of New York for your credit and advice.</p> <p>“Yours very truly,</p> <p>“G. A. Collins, Cashier.”</p> <p>The bill alleges, however, that said remit-' tance was not made, and that said draft remains unpaid. It is further alleged that on December 7, 1916, the Elmore County Bank sold and transferred to the Bank of Eclectic all of its assets of every character for a recited cash consideration of $10, and the further consideration of the Bank of Eclectic assuming and agreeing to pay all liabilities of the Elmore County Bank, as shown by its records, and, further, that said' Bank of Eclectic has so assumed charge of said assets; that at the time of said sale, the Elmore County Bank was indebted to the Bank of Eclectic in a large sum which constituted a substantial part of the consideration for the sale of its assets to the Bank of Eclectic ; and that the real consideration for said sale was the said indebtedness to the Bank of Eclectic and the agreement on the part of said bank to pay the debts and assume the' liabilities of the Elmore County Bank; that the property sold constituted all, or substantially all, of the property of the Elmore County Bank. It is further averred that, in addition to the agreement of the Bank of Eclectic to pay the debts of the Elmore County Bank, said sale by the Elmore County Bank of all its assets, under the circumstanc: es shown, was a general assignment for the benefit of the creditors of the Elmore County Bank, and that the complainant is therefore entitled to have the assets administered so as to have its debts paid out of said assets by the Bank of Eclectic, the assignee.</p> <p>The bill was demurred to for want of equity, and for its failure to show that the complainant was a creditor of said Elmore County Bank, and upon the further ground that the allegations of the bill show that the acceptance of said draft was not in writing and subscribed to by the Elmore County Bank. The demurrer was overruled, and the bill answered.</p> <p>Complainant offered testimony tending to support the material averments of the bill, and there was evidence tending to show that at the time of the sale by the Elmore County Bank to the Bank of Eclectic, the former was largely indebted to the latter on account of dishonored checks and drafts.</p> <p>The testimony also tended to show that the draft in question had not been paid, and that the same had been destroyed by the president of the Elmore County Bank prior to the sale; that it was not on the files of the bank at the time; and, further, that one of the members of the Sturdivant Bank had told the president of the Elmore County Bank that he thought the drafts had all been paid, but there is no evidence that this was communicated to the Bank of Eclectic at the time or prior to the transfer. This statement on the part of the member of the Sturdivant Bank grew out of some confusion in reference to correspondence and telegrams as to a number of drafts on said Elmore County Bank.</p> <p>The trial court was of the opinion that while the special agreement of the Bank of Eclectic to pay all the liabilities of record of the Elmore County Bank did not include the liability on this particular draft, because the same was not of record at the tim.e of the purchase, nevertheless the court was of the opinion that the Bank of Eclectic purchased and took over all of the assets of the Elmore County Bank upon consideration of a pre-existing debt, and that, such a conveyance operated as a general assignment for the benefit of all the creditors of said Elmore County Bank, and that the Elmore County Bank was liable to the Sturdivant Bank for the amount of said draft. A decree was entered, granting the relief prayed, from which respondent Bank of Eclectic prosecutes this appeal.</p> <p>Sections 5081, 5086, 4295, Code 1907, were complied with, so as to authorize relief. Where one of two innocent persons must suffer by the wrongful act of the' third, he who enabled the other party to cause it must bear the loss. Noble v. Moses, 74 Ala. 604; Person v. Thornton, 86 Ala. 308, 5 South. 470; Hill v. Nelms, 86 Ala. 442, 5 South. 796; Turner v. Elynn, 72 Ala. 532; Brown v. Bank, 103 Ala. 123, 15 South. 435. Sturdivant’s statement estopped the Sturdivant Bank from claiming on account of the Gilliland drafts. Allen v. Maury, 66 Ala. 10.</p> <p>On an assignment or sale by a person or corporation of all of its property, in consideration of the assignee or purchaser undertaking or agreeing to pay the debts of the seller, the creditors may maintain actions against the assignee or purchaser. Dimmick v. Register, 92 Ala. 458, 9 South. 79; North Alabama Development Co. v. Short, 101 Ala. 333, 13 South. 385; Young v. Hawkins, 74 Ala. 370; Coleman & Carroll v. Hatcher & Brannon, 77 Ala. 217; Bessemer Savings Bank v. Rosenbaum Grocery Co., 137 Ala. 534, 34 South. 609; Moore v. Eirst National Bank of Florence, 139 Ala. 595, 36 South. 777; Huckabee v. May, 14 Ala. 263.</p> <p>The sale of all of its property by the Elmore County Bank to the Bank of Eclectic for the purpose of paying its debts, or a part of its debts, was and is a general assignment for the benefit of all of the creditors of the said Elmore County Bank, even if there had been no express agreement on the part of the purchaser to do so as the consideration for such sale. Elliott et al. v. Kyle, 176 Ala. 376, 58 South. 309; Smith v. Young, 173 Ala, 190, 55 South. 425; Sinith v. McCadden, 138 Ala. 284, 36 South. 376; Gay, Hardie & Co. v. Strickland, 112 Ala. 567, 20 South. 919.</p> <p>Where it is agreed as the consideration for a sale of property that the purchaser will pay the debts of the seller, the purchaser owes the money to such creditors. Tyson v. Austin, 168 Ala. 525, 529, 53 South. 263; Dim-mick v. Register, 92 Ala. 458, 9 South. 79.</p>

Clair County ; O. A. Steel, Judge. Action by J. A. Vaugbn against the Alabama Fuel & Iron Company, for damages for the deposit of deleterious matter upon his lands. Judgment for plaintiff, and defendant appeals. The remedy is case, and not trespass. Tutwiler C., C. & I; Co. v. Nichols, 146 Ala. 364, 39 South. 762, 119 Am. St. Rep. 34; Drake v. Lady-Ensley Co., 102 Ala. 501, 14 South. 749, 24 L. R. A. 64, 48 Am.

A. Steele, Judge. Action by J. A. Vaughn against the Dwight Manufacturing Company and another for damages sustained while in the employ of the defendants. Judgment for the plaintiff, and defendant Dwight Manufacturing Company appeals. The facts sufficiently appear from the opinion.

Kyle, Judge. Bill by R. C. Gibson against Willie Gibson for divorce. Respondent filed a cross-bill seeking temporary alimony, solicitor’s fee, and permanent alimony. There was a decree granting divorce, but denying alimony, and from this decree respondent appeals. The facts sufficiently appear.

Petition by W. H. Kemp and the National Surety Company for certiorari to the Court of Appeals to review and revise the judgment and decision of the Court of Appeals, rendered in the case- of W. H. Kemp et al. v. Annie J. Donovan et al., 84 South. 412.

Application by John W. McAlpine and others, as executors of the estate of Blanche C. Turner, deceased, for final settlement of their accounts, opposed by Edmund Carre and others. From a decree sustaining the objections, the executors appeal.

Kyle, Judge. Bill by the Hughes & Tidwell Supply Company against J. D. Carr and others, seeking to have a receiver appointed, for an accounting, creating a lien, foreclosing the mortgage, and for personal judgment over. From the decree rendered, complainant appeals. The facts are sufficiently stated, in the statement made by Brown, J. The decree overruled the demurrers of the respondent to the original bill as well as the demurrers of complainant to the answer and cross-bill.

G. Earner, Special Judge. Petition by J. E. Henderson against Y. Allen Holman to supersede execution and for exoneration in an amount that the lumber was delivered to'the sheriff and by him delivered to Holman. The judgment was that petitioner be credited with all the lumber received by him from the sheriff except 10,000 feet, worth about $150. Erorn this judgment respondent appeals. The facts will be found stated in Henderson v. Holman, 185 Ala. 538, 64 South. 11.

Petition of Homer Kirby for certiorari to 'the Court of Appeals to review and. revise the judgment of said court affirming the appeal of Homer Kirby against the State. The court erred in admitting the extraneous charge. King v. State, 8 Ala. App. 239, 62 South. 374. The court erred in admitting the phone conversation. 16 Ala. App. 467, -79 South. 141; 16 Ala. App. 394, 78 South. 310; 143 Ala. 228, 39 South. 141; 153 Ala. 295,. 45 South. 73; 14 Ency. of Ev. 154; 6 Id. 924.

Circuit Court, Coffee County; A. B. Foster,'Judge. Bill by J. E. Henderson against W. J. Wilson and others for partition of certain real estate, with cross-bill by respondent for reformation of mortgage as to land conveyed.

M. Miller, Judge. Action by D. H. Ellard against Thomas Goodall for damages for the statutory penalty for cutting trees, conversion of certain trees, and for trespass upon land. Judgment for defendant, and plaintiff appeals. The act of Congress advancing the time one hour could not operate to deprive the plaintiff of the full 90 days allowed by our statute for presentation of bill of exceptions.

D. Turner, Judge. Action by B. P. Means against C. F. Blanks for conversion and trespass. Judgment for defendant, and plaintiff appeals. The paper referred to in the opinion as of date August 12, 1914, is as follows: State of Alabama, Choctaw County: This is to certify that I have this day sold to C. F. Blanks 160 acres of timber near Job Buflins, said timber was originally owned by A. B. Hardin, the price of said timber being $1,200.00, one thousand two hundred dollars.

Action by Phillip B, Minor against Thomas W. Coleman for damages for killing a dog. Prom judgment for plaintiff, defendant appealed to the Court of Appeals, which reversed and remanded (82 South. 42), and plaintiff petitions for certiorari.

B. Foster, Judge. Bill by tbe Spurlin Mercantile Company against J. T. Boutwell and others to declare a conveyance /fraudulent and void as made to hinder and delay creditors. Decree for complainant, and respondents appeal. The facts sufficiently appear from the opinion.

<p>1. Street railroads <&wkey;lll(3)—Where complaint SO ALLEGES, PLAINTIFF MUST PROVE THAT DECEDENT WAS STRUCK BY CAR.</p> <p>.Where each count of the complaint expressly averred that plaintiff’s intestate was injured by one of defendant’s street cars, there can be no recovery without proof of such fact.</p> <p>2. Street railroads &wkey;>117(34) — Evidence HELD TO SHOW AS MATTER OF LAW THAT plaintiff’s intestate was not struck by STREET CAR.</p> <p>In an action for the death of plaintiff’s intestate, whom it was claimed was struck by a street car, held, that defendant was entitled to a directed verdict; all of the evidence showing that the intestate was not struck by the street car,,but fell beside it.</p>

Ferguson, Judge. Action by J. S. Standridge against T. W.' Martin for damages for an automobile accident. There was judgment for plaintiff which on motion of the defendant was set aside, and plaintiff appealed. After setting out the minute entries relating to the motion for a new trial, the bill of exception recites: Said motion for a new trial coming on for hearing on, to wit, * * • the following evidence and exhibits was submitted by the defendant in support of said motion.

Action by N. L. Carpenter & Co. against W. J. Naftel and others, as executors of the estate of C. G. Abercrombie upon a note and stated account. Judgment for defendants, and plaintiffs appeal. The controversy is as to whether or not the claims were presented to the executors within the time allowed by law. There was no dispute as to the correctness of the account.

M. Miller, Judge. Assumpsit by T. L. Warren against tbe Moundville Lumber Company. Judgment for plaintiff, and defendant appeals. Plaintiff stated bis cause in several counts, tbe common count and several counts for breach of contract. The pleas were the general issue, payment, and set-off. The other facts sufficiently appear. Counsel discussed the assignment of error, but without citation of authority. Counsel discussed the pleadings, and cites authority.

A. Peajjce, Judge. Action for breach of contract begun by attachment by the Dowling-Martin Grocery Company against the J. C. Lysle Milling Company. From judgment sustaining demurrers to the complaint, plaintiff appeals. The following telegrams and letters are directed to be set out; “Jan. 4, 1917. The J. O. Lysle Milling Company, Leavenworth, Kansas. Wire quick best price White Crest. “Dowling-Martin Grocery Company.” Telegram: “Jan. 4, 1917.

<p>1. Curtesy <&wkey;7—Essentials oe estate by “curtesy” stated.</p> <p>At common law the requisites of an estate by curtesy were marriage, actual seisin of the wife, issue, and the wife’s death.</p> <p>[Ed. Note.—Eor other definitions, see Words and Phrases, Eirst and Second Series, Curtesy.]</p> <p>2. I-Iusband and wife <&wkey;193—Wib;e may assign STATUTORY EIGHT TO REDEEM FROM FORECLOSURE WITHOUT HUSBAND JOINING; “INTEREST IN PROPERTY.”</p> <p>Under Code 1907, §§ 4492-4494, 4497, giving a wife capacity to contract, except that she cannot alienate her lands or any interest therein without her husband’s consent, etc., a statutory right to redeem from a mortgage foreclosure is assignable under section 574:6 by a wife without her husband’s joining in the assignment, since the right is not an “interest” in property, but merely a personal privilege.</p> <p>[Ed. Note.—Eor other definitions, see Words and Phrases, Eirst and Second Series, Interest.]</p> <p>3. Equity i&wkey;233—General demurrer tests ONLY DEFECTS IN SUBSTANCE.</p> <p>Under Code 1907, § 3121, relating to demurrers to bills in equity, a general demurrer tests only defects in substance, and all proper amendments are considered to have been made.</p> <p>4. Equity &wkey;s241—Decree on demurrer confined TO -GROUNDS ASSIGNED.</p> <p>, A decree on demurrer to a bill in equity will be confined to the grounds assigned under Code 1907, § 3121, relating to demurrers to bills in equity.</p> <p>5. Mortgages <&wkey;616—Bill to redeem sufficient.'</p> <p>Under allegations in a bill to redeem from real estate mortgage foreclosure that purchaser had been in possession since the sale, it will not be presumed, on a general demurrer to the bill, that complainant had refused to deliver possession to the purchaser on his written demand, although there is no direct allegation that such possession had been delivered.</p> <p>6. Mortgages c&wkey;542—Demand of purchaser AT FORECLOSURE SALE FOR POSSESSION MUST BE WRITTEN. ' ,</p> <p>Under Code 1907, § 5747, requiring land sold at a mortgage foreclosure sale to be delivered to the purchaser within ten days upon his written demand, the purchaser’s failure to give a demand in writing is a good excuse for failure to deliver possession.</p> <p>7. Mortgages ¡&wkey;591(l)—Delivery oe possession NECESSARY TO STATUTORY RIGHT OE REDEMPTION.</p> <p>The statutory right to redeem from a real estate mortgage foreclosure docs not exist unless the property has been delivered to the foreclosure purchaser.</p> <p>8. Mortgages &wkey;>616—Bill to redeem held suepicient.</p> <p>In bill to redeem from a mortgage foreclosure sale, allegations that the mortgagors had conveyed subject to a named mortgage and other mortgages mentioned in their deed held not an allegation that any mortgage executed subsequent to the named mortgage existed at the time of foreclosure.</p> <p>9. Mortgages <&wkey;615 — Mortgagees not. CLAIMINGI UNDER PARTIES TO SUIT TO REDEEM ARE NOT NECESSARY PARTIES TO SUCH SUIT.</p> <p>In suit to redeem by assignee of the statutory right of redemption against the purchaser at foreclosure, the rights of prior or junior mortgagees of the original mortgagors were not affected, so that it was not necessary to make such mortgagees parties.</p>

B. Foster, Judge. Bill by George Stuart, as trustee of the bankrupt estate of J. M. Strickland, against J.'M. Strickland and others, to correct an error in a final decree formerly rendered, and to correct the descriptions of the lands therein as to the location of land, or to require a proper conveyance. From a decree sustaining demurrers to the bill, complainant appeals.

A. Locke, Judge. Proceeding by the State of Alabama, on the relation of J. R. Tate, Solicitor, against One Lexington Automobile, alleged to have been used by one Hubert Harrison and others for the illegal conveyance of intoxicating liquors, with intervention by the Denegre Car & Truck Company under retention title notes in the car. From an adverse decree, the State appeals.

Bill by A. B. McWhorter against S. L. Tyson to restrain foreclosure of mortgage, for an accounting, and for cancellation. From decree for respondent, complainant appeals. Respondent files cross-bill alleging that there were $7,000 due on the mortgage debt with interest, and prayed foreclosure of his mortgage for that amount.

Victor Corkran was convicted of an offense, on appeal the judgment was reversed by the Court of Appeals- (82 South. 560), and J. Q. Smith, Attorney General on behalf of the state, petitions for certiorari to the Court of Appeals to review and revise such judgment. In following Mixon’s Case, 14 Ala. App. 11, 70 South. 949, the Court of Appeals committed error, since that case is unsigned and should be overruled. 149 Mass. 229, 21 N. E. 377, 3 D. R. A. 747, 14 Am.

W. Ferguson, Judge. Action by the ¡State of Alabama to condemn one Ford automobile, motor No. 1459-798, license No. 40S01, found transporting whisky, with claim of same by I. B. Igo. From a decree condemning the automobile, claimant appeals. The car was captured by officers of the law on a public highway in Jefferson county and had in it 25 gallons of corn liquor, whisky.

Bill by Mrs. Nettie McClellan, as an individual and as administratrix of the estate of Oscar McClellan, deceased, against J. E. McClellan and others, to declare a resulting trust in land. From decree overruling demurrer to the bill, respondents appeal.

<p>Appeal from Circuit Court, Jefferson County ; Hugh A. Locke, Judge.</p> <p>Bill ¡or petition by W. Barnes Morgan against Mrs. Leila J. Morgan,'now Mrs. Leila J. Lavender, for modification of a decree, heretofore rendered, granting alimony to re- ' spondent. From a decree overruling demurrers, respondent appeals.</p> <p>The demurrers should have been sustained, ¡section 3816, Code 1907; ante, p. 167, 82 South. 417; 131 Ala. 445, 31 South. 91; 84 Ala. 262, 4 South. 137; 71 Ala. 83; 45 Ala. 264; 125 111. 608, 18 N. E. 329, 1 L. R. A. 320, 8 Am. St. Rep. 417; 64 Ohio St. 369, 60 N. E. 560; 58 N. X. 664.</p> <p>The court properly overruled the demurrers. 1 R. C. L. 950; 14 Oyc. 787; 99 111. 196, 39 Am. Rep. 21, and authorities cited by appellant. See, also, 141 Wis. 491,124 N. W. 1028; 31 S. D. 459, 139 N. W. 341; 104 Cal. 45, 37 Pac. 770, 43 Am. St. Rep. 70.</p>

Locke, Judge. The state of Alabama through a solicitor filed a bill to condemn the automobile in question because found transporting prohib-, ited liquor. Tony Gattina intervened and filed claim for the automobile, and from the decree rendered he appeals. The court erred in rendering judgment condemning the automobile. Ante, p. 90, 82 South. 104; 161 Ala. 153, 49 South. 772. The court was correct in the judgment rendered. Ante, p. 153, 82 South. 183.

Grayson, Judge. Bill by Elizabeth G. Zadek and others against the Merchants’ Bank of Mobile and others for an accounting and other relief, with cross-bill by certain respondents. From a decree overruling demurrers to the bill, certain respondents, including the named respondent, appeal. The Zadek Jewelry Company, should have brought this suit. 2 Ala. 699; 165 Ala. 150, 51 South. 614.

<p>Appeal from Circuit Court, Montgomery County; William L. Martin, Judge.</p> <p>Bill by Patrick Mulcahy for the sale of certain lands for reinvestment for the benefit of his minor heirs. Prom the decree rendered the minor heirs appeal.</p> <p>Patrick Mulcahy is the father of the six respondents, all of whom are minors. Pat-rick Mulcahy owns a life estate in certain property on Alabama street in the city of Montgomery, with the remainder in the six respondents to this bill. Patrick Mulcahy owns certain real estate situated on Monroe street in the city of Montgomery, and it is agreed that the reasonable market value of each place is $5,000. A citizen of Montgomery offers $5,000 for the Alabama street property, and Mulcahy desires to sell this property to him, and with the proceeds pay off an indebtedness on the Monroe street property, putting the title in the children. The court decreed a private sale of the Alabama street property, with an order to the register that out of the proceeds of this sale the mortgage on the Monroe street property be paid off and discharged, the remainder be paid to Patrick Mulcahy, and that the title to the Monroe street property be vested in the. six minor children.</p> <p>Counsel propounds the inquiry if the court of chancery has the authority to authorize a private sale of property belonging to minors for reinvestment. He cites no authority in answer thereto.</p> <p>Where it is to the best interest of the minors, a court of chancery has authority to authorize a private sale of property for reinvestment. 176 Ala. 314, 58 Soutn. 311, Ann. Cas. 1915A, 561; 14 South. 475; 82 Ala. 4S9, 1 South. 716; 64 Ala. 410; 16 Ala. 409.</p>

Petition of M. O. Camody for certiorari to the Court of Appeals to review and revise the judgment of said court rendered in the case of Louisville & Nashville R. R. Company v. M. C. Oamody, 82 South. 648. It was an Alabama contract, and no demur-rage was chargeable except, through the fault of the consignee. Section 5614, Code 1907; 4 R. C. L. §§ 317-326.

Action by the Commercial Savings Bank The statute of inter-pleader entitled to a liberal construction. 23 Cyc. 36; 36 Cyc. 813. The judgment as to the Schrader Company was final. 19 Cyc. 532; 3 Corpus Juris, 493; 23 Cyc. 35. The statute controls appeals. Sections 2837, 2838, 2S39 et seq. The judgment in' this case was not final. 79 Ala. 287; 15 Ala. App. 647, 74 South. 749 ; 81 South. 179.

B. Foster, Judge. Bill by Lucile Blue against Mrs. Lemmer Lee and the Elba Bank & Trust Company to cancel a mortgage. Decree for complainant, and respondents appeal.

Appeál from Circuit Court, Franklin County; O. P. Almon, Judge. Bill by E. B. Sockwell against Clark Fuller and others for the sale for division of certain land. From a decree granting relief the dedefendant Clark Fuller appeals. The purchaser had notice of the title of the children, since they were in possession. 182 Ala. 314, 62 South. 525; 172 Ala. 669, 55 South. 190; 111 Ala. 601, 20 South. 485; 9 Ala. 436; 12 Ala. 434.

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Suit by J. W. Kelly against the Fourth National Bank of Montgomery and others, wherein F. D. Kirvin intervened. Decree for plaintiff, and intervener and defendants appeal.</p> <p>The appeal is from a decree upon the petition of J. W. Kelly, as a bondholder under a deed of trust, to be allowed compensation out of the proceeds of the foreclosure sale of the property for fire and tornado insurance premiums alleged to have been paid by him during the years 1915 and 1916 for the protection and common benefit of himself and the other bondholders, pending the execution of the trust. Kelly’s petition is ancillary to the original proceedings instituted by tbe trustee, tbe Montgomery Bank & Trust Company, for the foreclosure of said deed of trust against the grantor therein, the Planters’ Cotton Oil Company, for the satisfaction of its bonds in amount $100,000. The petition alleges that Kelly owns $4,500 of the bonds as shown by his statement and claim filed as required by the decree of date November 6,1917; that the deed of trust requires that the Planters’ Cotton Oil Company shall keep said property insured for as much as can be reasonably carried thereon, with loss payable to said trustee as its interest may appear in said property, and further, if said Planters’ Cotton Oil Company shall fail to provide such insurance, then the trustee may do so, and the Planters^ Cotton Oil Company must repay the trustee the amount so paid out by it within 30 days after demand therefor, with interest, for which the trustee shall have a first lien on all the property covered thereby. Tbe petition further alleges that in the years 1915 and 1916 said Planters’ Cotton Oil Company was without funds and unable to pay premiums for insurance to protect said property against fire and tornadoes, and that petitioner so informed the trustee, who in turn likewise informed petitioner that it had no funds to pay for such insurance. Whereupon petitioner to protect himself and the other bondholders took out in each of said years an insurance on said property for $53,000 against fire and $15,000 against tornadoes besides some smaller amounts on other items of said property, the premiums for which aggregated $2,325.10, less his commission as insurance agent. The petitioner paid these premiums on the several policies, which were made payable to the Montgomery Bank & Trust Company as trustee, and without which said property would have been unprotected. The petition concludes by praying that petitioner be reimbursed for the sum thus paid out by him out of the proceeds of the sale of the said property ordered to be sold under the decree of foreclosure entered in this case.</p> <p>One IP. D. Kirvin, alleging that he was a bondholder whose claim had been duly filed, intervened and objected to the allowance of petitioner’s claim, denying its validity, and denying the allegation of the petition, as did also the trustee, and both Kirvin and the trustee filed a demurrer to the petition setting up numerous grounds. The demurrer was overruled, and the petition was heard on pleadings and proofs. And a decree was rendered giving petitioner’s claim priority over the claim of bondholders and ordering his payment out of the proceeds of the trust sales.</p> <p>The appeal is taken by Kirvin, the Fourth National Bank of Montgomery, and by T. J. Reynolds and C. B. Brown, as receivers of the Montgomery Bank & Trust Company.</p> <p>Insurance prezzziums, when not a lien by statute, are not entitled to priority in favor of one paying them for the company as agaizist bondholders. 89 S. E. 195; 3 Fletcher, Oye. Corp. 2417.</p> <p>The parties appealizig have not been injured by the decree, and can therefore take nothing by their appeal. 6 Ala. 166; 18 Ala. 34.</p>

Golsby, Judge. Action by the People’s Bank of Mobile against W. H. Martin, doing business under the name of the Gulf Export Company, on an accepted bill of exchange. Judgment for plaintiff, and defendant appeals. Suit by appellee against W. H. Martin (as amended during trial), doing business under the name of Gulf Export Company, on the acceptance of a bill of exchange; said suit resulting in a judgment for the plaintiff, from which the defendant prosecutes this appeal.

Turner, Judge. Demus Beech was convicted of murder in the first degree, and he appeals. Appellant was jointly indicted with Quinnie and Henry Loper for the murder of one James M. Turner, Jr. A severance was demanded, and appellant tried, resulting in a conviction of murder in the first degree, and punishment being fixed at life imprisonment, from which judgment of conviction he prosecutes this appeal.

Pugh, Judge. Action by A. L. Morton against the Gorman-Gammill Seed & Dairy Supply Company for damages for false imprisonment and malicious prosecution. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals, under section 6, Acts 1911, p. 449.

<p>1. Homicide <&wkey;169(9)— Complaints of citizens, INDUCING DEFENDANT POLICE OFFICER TO' ENTER BUILDING, WHERE HE KILLED DECEASED, ADMISSIBLE.</p> <p>In a prosecution against a police officer, who entered a woman’s house, where he found drunken soldiers, and killed one in attempting to make an arrest, testimony that citizens living in locality complained to the officer of the disorder in the house, and that as a result of their complaint he visited the premises, is admissible; the state’s theory being that the officer went to premises for a personal motive, and, under guise of arresting deceased, assaulted 'and killed him.</p> <p>2. Homicide <&wkey;339—Exclusion of evidence HELD PREJUDICIAL.</p> <p>Where it was the state’s theory that defendant police officer for a personal motive visited a woman’s house, and there, under guise of arresting, shot and killed, deceased, exclusion of testimony that citizens in neighborhood had complained of disorder in the house, and' as a result that defendant went to premises, was prejudicial.</p> <p>3. Homicide <&wkey;180—'Whether deceased was DRUNK OR SOBER HELD ADMISSIBLE.</p> <p>Where defendant, a police officer,' who entered a woman’s house and shot deceased, asserted that he found deceased drunk and disorderly, and that he resisted arrest, etc., testimony of persons living in vicinity, who complained of disorder on premises, as to whether deceased and his companions appeared to be drunk or sober, and whether they were staggering, admissible.</p> <p>4. Homicide &wkey;>184—That place where accused ATTEMPTED TO ARREST DECEASED WAS A DISORDERLY RESORT ADMISSIBLE.</p> <p>Where, on complaint of citizens of disorder in premises, defendant, a police officer, visited a house, where he shot and killed deceased in attempting to make an arrest, etc., evidence that the place was a disorderly house is admissible,. together with proof that defendant knew the general reputation, for in such cases he might well be entitled to more latitude in making arrests.</p> <p>5. Homicide <&wkey;105, 298—Rule of self-defense not applicable to force used by officer in making arrest.</p> <p>An officer, in making a lawful arrest, need not retreat before resistance, but may become the aggressor, and use any necessary force, hence the rules governing the conduct of an officer in making an arrest are different from the rules applicable to self-defense, and where an officer claimed that defendant, on being arrested, >resisted him and attempted to draw a deadly weapon, whereupon he killed deceased, the jury should be instructed as to right of officer to use force.</p>

Leigh, Judge. Action by'the Paterson & Edey Lumber Company against the Bank of Mobile for breach of contract relative to the sale of lumber. Judgment for plaintiff, and defendant appeals.

Grayson, Judge. Bill by .Robert L. Jones and William C. Sims against Joseph H. Hunt for rescission and an accounting. Erom decree for complainants, respondent appeals. The proof did not meet the requirements of the law for the rescission of the contract. 95 Ala. 389, 11 South. 15.

Grayson, Judge. Bill by James K. Clark, Sr., against Viva A. Pickens and others to review a decree rendered and for other relief. From a decree overruling demurrers to the bill, respondents appeal.

Contest by Godfrey B. Dunning of the election of William H. Holcombe, Jr., as Sheriff of Mobile County. Prom adverse rulings on the evidence resulting in contestant’s taking a nonsuit, he appeals.

Clair County; O. A. Steele, Judge. Bill by Lizzie E. Cameron, by next friend, Mattie L. Butler, against R. A. Martin and Florence Ellis, to remove the guardianship of a non compos mentis from the probate to the chancery court, to cancel a deed, and to revoke letters of guardianship. From a decree granted, respondents appeal. The case made by the bill is: That Lizzie Cameron was of unsound mind and resided with her mother in Pell City up to the time of the death of her mother.

Clair County; J. E. Blackwood, Judge. Action by Addle Haywood, as administratrix, against the Alabama Fuel & Iron Company, for damages for the wrongful death of her intestate. There was judgment for plaintiff, which was set aside on motion of the defendant, and plaintiff appealed. The plaintiff's intestate was killed by a gas explosion while engaged in the mining of coal for the defendant corporation in its coal mine.

A. Sharpe, Judge. Action by the Blumberg Shoe Company against the Phoenix Assurance Co., Limited, of London,- on a fire insurance policy. Judgjnent for defendant, and plaintiff appeals. The action was to recover $2,000 on a fire insurance policy issued May 21, 1917, for loss by fire on a stock of goods.

Brickell, Judge. Action by C. D. Patterson, as administrator of the estate of Walter Brand, deceased, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Suit by appellee, as administrator of the estate of Walter Brand, deceased, against the appellant railway company to recover damages for the killing of plaintiff’s intestate by defendant’s passenger train.

Brickell, Judge. Suit by Maggie J. Naugher, administratrix, against the Louisville & Nashville Railroad Company. Prom judgment for plaintiff, defendant appeals. Suit by appellee against appellant to recover damages for the death .of one Joseph Naugher, resulting in a judgment for the plaintiff, from which judgment this appeal is prosecuted. The cause was tried upon issue joined upon nine counts of the complaint .and the plea of contributory negligence.

C. B. Gwin, Judge. Suit by Z. Cross and another against the Bank of Ensley and others to redeem from certain mortgages, with cross-bill by defendant named for foreclosure. From a decree granting relief under the cross-bill, complainants appeal. The deed or mortgage from R. C. Cross is void. 130 Ala. 393, 30 South. 553 and cases there cited. The deed or mortgage was neither properly witnessed nor acknowledged. Section 3355, Code 1907; 140 Ala. 378, 37 South. 275, 1 Ann.

<p>1. Usury <&wkey;115—A written contract may BE SHOWN USURIOUS BY PAROL EVIDENCE.</p> <p>Despite the parol evidence rule, a written contract can be shown to be usurious by parol evidence.</p> <p>2. Mortgages <&wkey;37(2)—An instrument in FORM OF DEED MAY BE SHOWN SECURITY FOR DEBT.</p> <p>An instrument in form a deed may be shown by parol evidence to be security for a debt.</p> <p>3. Evidence &wkey;414, 419(2), 441(8)—Consid-eration AND DATE MAY BE SHOWN, BUT DEED CANNOT BE VARIED BY. PAROL EVIDENCE.</p> <p>While the true consideration of a conveyance and its date of delivery and execution may be shown by parol, evidence of an agreement made prior to or contemporaneous with a deed, containing usual covenants, is not admissible to vary the ordinary scope of the covenants in the absence of fraud or mistake.</p> <p>4. Evidence <&wkey;419(2)—Where deed was absolute IN FORM, PAROL EVIDENCE IS INADMISSIBLE TO SHOW MINERALS WERE EXCEPTED.</p> <p>Where a deed was absolute in form, parol evidence cannot be received, on the theory that proof of the consideration can be shown by parol, to establish that minerals were reserved and excepted from the operation- of the conveyance.</p> <p>5. Reformation of instruments <&wkey;20, 44r— Equity may relieve in case of misrepresentation of law; to relieve from FRAUD, PAROL EVIDENCE MAY BE RECEIVED though; contradicting writing.</p> <p>While a misrepresentation as to a matter of law does not per se constitute fraud, yet, if the purchaser’s agent knowing the vendor’s ignorance of the law made misrepresentations as to a desired reservation, equity will grant relief from the fraud, and for such- purpose parol evidence may be received though contradicting the terms of the deed.</p> <p>6. Witnesses <&wkey;154—Witness incompetent BY REASON OF DEATH OF AGENT OF OPPOSITE PARTY.</p> <p>Where the agent with whom a vendor of lands contracted for their sale has died before trial of a suit to compel the purchaser to convey an interest in the minerals on the theory that they were to be reserved, etc., the vendor, under Code 1907, § 4007, is incompetent to testify as to the agent’s statements.</p> <p>7. Mines and minerals <&wkey;55(8)—Evidence HELD NOT TO SHOW PURCHASER’S AGENT KNOWING VENDOR’S IGNORANCE OF LAW PRACTICED FRAUD.</p> <p>In a suit to compel purchaser of laud to convey an undivided one-half interest of the minerals on the theory that the minerals were to be reserved and excepted from the conveyance, evidence held insufficient to show that the agent took advantage of the vendor’s ignorance of the law to defraud him.</p> <p>8. Evidence <§=>243(7) —• A former agent CANNOT BIND HIS PRINCIPAL AFTER COMPLETION OF THE TRANSACTION.</p> <p>After completing a purchase of land for his principal, the former agent cannot bind his principal by assenting to the vendor’s assertion that minerals were reserved. N</p> <p>9. Evidence <@=>71 — Prompt delivery of MAILS PRESUMED.</p> <p>There is a presumption of prompt delivery of letters mailed.</p> <p>10'. Evidence <&wkey;241(l) — Correspondence BETWEEN PURCHASER AND AGENT ADMISSIBLE ON ISSUE OF FRAUD.</p> <p>In a suit to compel a purchaser to convey mineral rights on the theory that they had been reserved by the vendor, correspondence between the purchaser and his agent relative to the vendor’s assertion of such rights held admissible on the issue whether the agent, knowing the vendor’s ignorance of the law, took advantage of it to defraud him.</p> <p>11. Evidence &wkey;121(2) — Declarations of AGENT OF PURCHASER AS TO RESERVATION HELD ADMISSIBLE, BEING PART OF TRANSACTION.</p> <p>Where, after the death of the purchaser’s agent, the vendor asserted that he was entitled to one-half of the minerals under the land and that they were reserved, declarations by the purchaser’s agent relating to such matter made at the time of the transaction are admissible.</p> <p>12. Reformation of instruments <&wkey;45(7)—• Evidence that purchaser’s agent misrepresented NOT SUFFICIENT TO ESTABLISH FRAUD ON THE VENDOR.</p> <p>Evidence that the agent of a purchaser kept his principal in ignorance of the trade actually made which contemplated reservation of part of the minerals win not establish that the vendor, who relied on the agent’s representation that he would be protected, etc., was ignorant of the law and was defrauded.</p> <p>13. Trusts <&wkey;44(3)—Evidence to establish PAROL TRUSTS AS AGAINST ABSOLUTE DEED MUST BE CLEAR AND CONVINCING.</p> <p>A parol trust will not be ingrafted on a legal title evidenced by conveyance absolute on its face except by the greatest caution and where the fraud necessary to give rise to the trust is established by clear and convincing proof.</p> <p>14. Trusts <&wkey;365(5)—Where fraud is relied ON TO CREATE PAROL TRUST, PROMPT ACTION necessary.</p> <p>Where fraud is relied on to create a parol trust, prompt action after discovery of the fraud is necessary.</p> <p>15. Trusts <&wkey;365(5) — Complainant held BARRED BY REASON OF LACHES FROM ENFORCING THE PAROL TRUST.</p> <p>Where a vendor through alleged fraud conveyed land without reserving minerals relying on the statements of the purchaser’s agent, the delay of seven years during which the agent died is laches_ precluding the ingrafting of a parol trust on the absolute conveyance.</p>

Quo warranto by Alex Hancock and tbe councilmen elected with him to oust Harry ■Pillans and his associate commissioners, as the governing body of the city of Mobile. Prom a decree of ouster, respondents appeal.

Goldsby, Judge. Bill by the Mobile Electric Company against the City of Mobile and its municipal authorities to restrain and enjoin the… Held: that the adoption of the ordinance would impair the obligation of the contract, and that, having entered into the agreement to permit the Alabama Public Service Commission to fix the rates, and the Alabama Public Service Commission having assumed jurisdiction and fixed the rates, the city is now estopped to withdraw said jurisdiction…

Petition by Sallie Johnson for writ of prohibition against Hon. Lum Duke, individually and as Judge of the Lee Circuit Court. Writ denied.

<p>1.. Certiorari <&wkey;8—Unnecessary to grant CERTIORARI TO COURT OE APPEALS WHERE CASE WAS PROPERLY AFFIRMED.</p> <p>Although it may be conceded that an assignment of error gives the date and pages of the record of the judgment complained of and should not have been disregarded by the Court of Appeals, notwithstanding one of the appellants was not set out or named in the face of the judgment, yet it would serve no useful purpose to grant writ of certiorari and send the case back to the Court of Appeals for an affirmance, where an examination of the original record shows that the appeal was properly affirmed.</p> <p>2. Judgment <&wkey;24íG-M0DE of designation HELD TO INDICATE CORPORATION, AND NOT A FORMER PARTNERSHIP.</p> <p>A contention of variance in that judgment was against the old firm, and not against the subsequently organized corporation, because of the use of a hyphen between the parties’ names instead of the word “and,” is hypercritical, and not well taken, where in the affidavit, garnishment writ, appellant’s motion and bond, and especially in the judgment entry, the name is followed by the words “a corporation.”</p>

L. Sowell, Judge. Bill by the State against Priestly Trimble to condemn one Ford automobile because engaged in illegally transporting prohibited liquor, with intervention and claim by George W. Crosswhite of superior right to the ear by virtue of a mortgage. Judgment for claimant, and the State appeals.

Pugh, Judge. Action by Emanuel Hatcher, pro ami, against the Harbison-Walker Refractories Company. From judgment for plaintiff, defendant appeals.

W. Haralson, Judge. Bill by Daisy Caldwell against the .Trustees of Cumberland University, the Cumberland Presbyterian Church, and a number of the Caldwell heirs, to sell certain land for division. Decree for complainant, and respondent trustees appeal. The testatrix was bound by tbe provisions in tbe charter of the college permitting the discontinuance of certain departments, and to apply the income going to that department to the benefit of the corporation. 20 Wend. 457.

Bill by E. A. Biorris against the Southern Realty & Construction Company and others. From a decree sustaining demurrers to the bill, the complainant appeals. The case made by the bill is that the Southern Realty & Construction Company had charge of certain machinery for the purpose of disposing thereof, and that one Charles Lehman held a mortgage on it.

<p>Intoxicating liquors <&wkey;251—Wife’s business RELATIONS WITH HUSBAND AND NOTORIETY OF HIS OFFENSES AGAINST PROHIBITION LAWS RAISED PRESUMPTION SHE KNEW HIS USE OF HER AUTOMOBILE WAS ILLEGAL.</p> <p>In proceeding to forfeit an automobile for its illegal use by claimant’s husband for carrying contraband liquors, circumstances, including claimant's intimate social and business relations with her husband and the notoriety of his repeated offenses against the prohibition laws, held sufficient to generate a strong inference that she must have known or suspected that he was using her car in aid of his unlawful enterprises, thereby imposing upon her the duty of inquiry and prevention.</p>

<p>1. Nuisance <&wkey;49(2)—Evidence of value of defendant’s products immaterial.</p> <p>In suit against a cotton oil manufacturing company for damages for maintaining a nuisance, the value per ton of products of its plant was immaterial to issue of nuisance as against plaintiff property owner.</p> <p>2. Injunction <5&wkey;137(2)—Probable damages IN GRANT OR. DENIAL BALANCED IN DETERMINING WHETHER TEMPORARY INJUNCTION SHALL ISSUE.</p> <p>In exercising discretion in granting or withholding a temporary injunction, the court will balance probable resulting damages to the re-spective parties.</p> <p>3. Trial <&wkey;251(2)—Question of negligent OPERATION OF PLANT BY BEFENDANT NOT PRESENTED SO AS TO AUTHORIZE CHARGE ON BURDEN OF PROOF.</p> <p>In an action for damages for maintaining nuisance, where the counts presenting as an issue of fact the negligence vel non of defendant were withdrawn by plaintiff before the jury was charged, and the pleas to count charging .wrongs as constituting the nuisance were the general issue and statute of limitations, no question of negligent operation of its plant by defendant was presented so as to authorize a charge on the burden of proving negligence.</p> <p>4. Appeal and error <§=^1066—‘Charge as to BURDEN TO PROVE NEGLIGENCE, QUESTION NOT BEING PLEADED, HELD PREJUDICIAL.</p> <p>In an action for damages for maintáining a nuisance, charge that burden to prove negligence was on plaintiff, question of negligent operation of defendant’s plant not being litigable under the count on which submission was had, 7teZd prejudicial to plaintiff.</p>

J. Curtis, Judge. Bill by Susan N. MeKleroy and others against L. B. Musgrove, as administrator and individually, for' an accounting and settlement of administration. Prom the decree, complainants appeal. The facts in this case were contained in seven large volumes of records and are too voluminous to be set out. The court in its opinion indicates sufficiently the facts leading to the conclusion.

<p>1. Wills <&wkey;692, 698(1) — Testamentary POWER TO CONVEY POR CERTAIN PURPOSES HELD NOT TO GIVE “ABSOLUTE POWER” OE DISPOSITION.</p> <p>Where a power of sale, given by will to testator’s widow, was to be exercised only in the continuance of the business left by testator, or to support and maintain the widow, the power was not an “absolute one,” within Code 1907, §§ 3423-3425, changing, in certain cases, an absolute power of disposition into a fee absolute, so as to authorize the widow to convey land generally.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and' Second Series, Absolute Power of Disposition.]</p> <p>2. Wills <&wkey;692, 693(1) — Grantee under limited testamentary power oe disposition HELD NOT “PURCHASER” WITHIN STATUTE.</p> <p>Where testator’s widow, acting under a testamentary power to dispose of realty for the continuance of testator’s business and for her o„wn maintenance, attempted to convey to her son in consideration of love and affection and recognition of services already performed, and it appeared that such grantee had previously been compensated for Ms service, he was a mere volunteer, and not a purchaser, within Code 1907, §§ 3423-3425, transforming an absolute power of disposition, in certain cases, into a fee absolute, and enacted to preserve remainders against everybody except purchasers, who, on the faith of the power, have parted with value; “purchasers” in such act applying to acquisitions of land obtained by way of bargain or some other valuable consideration, and not to its ordinary legal meaning.</p> <p>[Ed. Note.—For other defimtions, see Words and Phrases, First and Second Series, Purchaser.]</p> <p>3. Wills <&wkey;692, 693(5)—Limited power oe DISPOSITION HELD NOT TO AUTHORIZE DISPOSAL OE PROPERTY BY WILL.</p> <p>Where a will conferred a power of disposition upon testator’s widow, limited to the continuance of testator’s business and .to the widow’s maintenance and support, she was not authorized to convey to a son, in consideration of love and affection and in recognition of services already performed, where the deed was testamentary in character; grantor having no power to dispose of the property by will.</p> <p>4. Wills &wkey;>692, 693(1)—Power limited to DISPOSITION EOR CERTAIN PURPOSES HELD NOT ABSOLUTE.</p> <p>Code 1907, § 3426, providing that every power of disposition is deemed absolute, by means of which the donee of such power is enabled, in Ms lifetime, to dispose of the entire fee for his own benefit, operates only in cases where the terms of the instrument confer a general and beneficiary power, and does not apply to a power limited to sales for continuance of testator’s business, or for the maintenance and support of his widow.</p>

Merrill, Judge. Bill by the Mutual Life Insurance Company of New York against the First National Bank of Anniston, Charles J. Haase, executor of the estate of Julius Saarbaeh, and Charles Wurtzburger and wife. From the decree rendered, defendant First National Bank of Anniston and defendant Charles J. Haase appeal. Each of the respondents answered.

<p>1. Abatement and revival &wkey;>74(3)—Judgment OF REVIVAL NEED NOT BE ENTERED WITHIN 12 MONTHS.</p> <p>Where the death of original plaintiff was suggested to the trial court within 12 months after the death, as required by the statute, the actual judgment of revival need not be entered within the 12-months period.</p> <p>2. Pleading <&wkey;193(6), 362(2)—Motion to STRIKE PROPER REMEDY FOR COUNT IMPROPERLY ADDED.</p> <p>A motion to strike, not a demurrer, is the appropriate remedy to eliminate a count improperly added to the complaint by. amendment.</p> <p>3. Limitation of actions &wkey;>180(7), 182(2)— Objection that action for death under FEDERAL EMPLOYER'S’ LIABILITY ACT WAS TOO' LATE NEED NOT BE PLEADED.</p> <p>Employers’ Liability Act U. S. § 6 (U. S. Comp. St. § 8662), providing that no action shall be maintained unless commenced within two years, limits the right of action, and is not merely a bar of the remedy, so that it need not be pleaded, and the objection that a count added by amendment to recover under that act was too late can be raised by motion to strike the count, and by request for the affirmative charge.</p> <p>4. Limitation of actions &wkey;>127(5) — Complaint MAY BE AMENDED AFTER LIMITATION TO AVER INTERSTATE CHARACTER OF EMPLOYMENT.</p> <p>A complaint for injuries to a railroad employé, which was silent as to whether his employment was interstate or intrastate, may be amended, after expiration of the two years within which to bring an action under federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665), to allege that the employment was interstate.</p> <p>5. Death <&wkey;82 — Damages for suffering AND DEATH RECOVERABLE IN O’NE ACTION UNDER FEDERAL ACT.</p> <p>Under Employers’ Liability Act U. S. § 9, as added in 1910 (U. S. Comp. St. § 8665), providing that the right of action for injuries shall survive to personal representative, but that there shall be only one recovery for the same injury, .the personal representative of a railroad employé, who lived four years after injury and then died as a result thereof, may recover in one action for the suffering of the employé caused by the injury, for damages to employé resulting from permanent injuries, and for damages to his next of kin resulting from the death.</p> <p>6. Limitation of actions &wkey;>127(6)—Amendment TO RECOVER FOE DEATH SUBSEQUENT TO SUIT NEED NOT BE MADE WITHIN TWO YEARS AFTER DEATH.</p> <p>Where an injured interstate employé died while his action to recover for his injuries was pending, an amendment to the complaint, adding counts to recover for the death, need not be filed within the two years after the death limited by the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) for commencing actions thereunder.</p> <p>7. Appeal and error <&wkey;1213 — Decision THAT EVIDENCE DID NOT SHOW NEGLIGENCE CONCLUSIVE ON SUBSEQUENT TRIAL, WHERE EVIDENCE WAS THE SAME.</p> <p>Where the Supreme Court had held that the evidence did not warrant a finding of negligence by an employé as alleged, and on a subsequent trial, after the death of original plaintiff, the testimony of the plaintiff at the former trial, which alone related the circumstances, was repeated, it was error for the trial court to submit to the jury the issue of negligence by the employé in question.</p> <p>Sayre and Somerville, JJ., dissenting in part.</p>

Foster, Judge. Action by George Harris against the Henderson Land & Lumber Company for personal injuries. Judgment for defendant, and plaintiff appeals. The Henderson Land & Lumber Company operated a turpentine orchard and still for the manufacture of turpentine and its byproducts, and in the operation thereof hired from the state of Alabama 100 male convicts. The still was located in the forest, some distance from the river where defendant maintained a storage warehouse.

P. Stiles, Judge. Contest between Emma Hines and Anna Hines and others for appointment as administratrix of the estate of Sam (or Elias) Hines. From the decree granting letters to Anna Hines, Emma Hines appeals. Pinkney Scott, of Bessemer, for appellant.

Wilkerson, Judge. Bill by Frances Stabile against Sam Sta-bile for divorce. Decree for complainant, and respondent appeals. The court erred in granting the divorce. 39 South. 679; 39 Ala. 348; 27 Ala. 222; 14 Oyc. 648. The evidence was sufficient to sustain the decree. 23 Ala. 785; 44 Ala. 437; 17 Cent. Dig. § 172.

A. Sharpe, Judge. Action by Ered Keefe and another against the Sovereign Camp, Woodmen of the World, for a beneficiary certificate issued on the life of Will Keefe and payable to plaintiffs. Judgment for plaintiffs, and defendant appeals. Plaintiffs stated their cause of action in five counts, the first three being on the beneficiary certificate, count 4 claiming for an account, and count 5 for money received by the defendant to the use of the plaintiff.

O. B. Gwin, Judge. Action by Mrs. C. P. Barranco against the Birmingham Railway, Bight & Power Company. Judgment for the' plaintiff, and defendant appeals.

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.</p> <p>Action by Mrs. E. Coli against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Bankruptcy <&wkey;308 — Right of city AGAINST BANKRUPT DEPOSITEE OF ITS FUNDS PARAMOUNT TO THAT OF ITS TREASURER.</p> <p>A city treasurer as the city’s agent, and although he was insurer of its deposited funds, and might personally hold the depositee to an accounting, the city, as beneficial owner, had the paramount right to do so, and its intervention m depositee’s bankruptcy superseded the treasurer’s right to prosecute a personal claim, so that his bondsmen were not subrogated to his rights to proceed against the depositee by their subsequent payment of a part of the city’s loss.</p> <p>2. Bankruptcy <&wkey;375—Transfer of property in return for money to effect composition NOT FRAUDULENT.</p> <p>Where depositee of city’s money, in his bankruptcy proceeding with the court’s approval, turned property over to another in return for money to effect a composition, and the city was a scheduled creditor, the transfer could not have been in fraud of the city treasurer’s bondsmen, whatever reservation was made as to any amount transferee might receive from the property in excess of the named amount for the depositee’s wife in lieu of her inchoate dower.</p> <p>3. Bankruptcy <&wkey;434r-BoNDSMEN of city TREASURER, RECEIVING NOTE FROM DISCHARGED BANKRUPT DEPOSITEE O'F CITY FUNDS, BECOME SUBSEQUENT CREDITORS.</p> <p>Where depositee of city funds, after discharge in bankruptcy, the city having filed its claim, recognized his moral obligation to the city treasurer’s bondsmen by giving them his promissory note for what they had paid the city on the treasurer’s liability, they became subsequent creditors of bankrupt.</p> <p>4. Mortgages <&wkey;32(l)—Transfer by bankrupt HELD ABSOLUTE CONVEYANCE.</p> <p>A conveyance by bankrupt to secure money for composition with creditors containing an agreement that money realized from the property beyond a certain sum was to be paid bankrupt’s wife in lieu of her inchoate dower, interest in the property held an absolute conveyance, and not a mortgage, in an action by city treasurer’s bondsmen upon depositee’s note given subsequent to discharge.</p> <p>5. Bankruptcy <&wkey;175—Gift by bankrupt TO WIFE VOID AS TO EXISTING, BUT NOT AS TO SUBSEQUENT CREDITORS, UNLESS MADE TO DEFRAUD.</p> <p>A bankrupt’s transfer of property to secure money for composition without reservation to himself, but with reservation to his wife of excess transferee should receive for property, if a mere gift, to wife, would be fraudulent and void as to existing creditors, but not as to subsequent creditors, unless made with intent to hinder, delay, or defraud them.</p> <p>6. Bankruptcy <&wkey;181 — Transferee’s'payment to bankrupt’s wife of excess amount received from banrkupt’s property OVER THAT PAID HELD CONSIDERATION FOR RELINQUISHMENT OF INCHOATE DOWER.</p> <p>A transfer of property by bankrupt to secure money for composition, with provision that amount transferee received in excess of amount he paid go to bankrupt’s wife, held not a gift, but a consideration inducing relinquishment of her inchoate dower interest in her bankrupt husband’s lands.</p> <p>7. Bankruptcy <&wkey;178(l) — Insufficient SHOWING OF BANKRUPT’S INTENTION TO DEFRAUD FUTURE CREDITORS BY TRANSFER.</p> <p>Where a bankrupt transferred certain property to secure composition funds, excess received by transferee to be paid to bankrupt’s wife in consideration for relinquishment of dower, facts held not to show that bankrupt intended thereby to hinder, defraud, or delay future creditor whose existence he then had no reason to anticipate.</p> <p>8. Assignments <&wkey;52, 59 — Equitable assignments BY WIFE OF PROPERTY TO PAY HUSBAND’S debt not revocable, apart FROM STATUTORY INHIBITION.</p> <p>Where bankrupt’s wife gave her note to husband’s subsequent creditors to be paid from surplus funds due her on agreement from property bankrupt had transferred to secure composition money, the order to pay signed by transferee held to operate as an equitable assignment pro tanto of the .trust fund, which she could not revoke, apart from statutory inhibition against her becoming surety for her husband’s debt.</p> <p>9. Husband and wife <&wkey;171(8)—Wife’s assignment OF PROPERTY HELD COLLATERAL SECURITY FOR HUSBAND’S DEBT.</p> <p>Where a husband transferred lands to secure money for composition in bankruptcy, surplus to be received by transferee of such land to go to bankrupt’s wife in consideration of inchoate dower interest, the wife’s pledge of such trust fund to pay husband’s subsequent debt held a conditional appropriation, which though absolute m form, was but a collateral secui'ity for the husband’s debts, not binding upon her.</p>

H. Alston, Judge. Bill by George Zaner and others against A. B. Thrower and' others for review or to cancel a decree of sale as a cloud on complainants’ title. From a decree sustaining demurrers to the bill, the complainants appeal. As alleged in the bill in the present case, the defendant Margaret E. Green is the daughter of Jane Zaner, and plaintiffs are the wife and children of Bailey Zaner, a son of Jane Zaner.

Petition by the Comity of Montgomery for certiorari to the Court of Appeals to review and revise the judgment and opinion of said court rendered upon the appeal of the New Farley National Bank against the County of Montgomery.

W. Haralson, Judge. Bill by J. H. Gunter and others, resident citizens and taxpayers, against J. B. Hack-worth, as Judge of Probate, and the other members of the Commissioners’ Court of Jackson County, and the contractor, to enjoin the building of the courthouse, and to declare void certain interest-bearing warrants.

M. Miller, Judge. Assumpsit by Mrs. Andrew M. Calvin against Mrs. A. F. Holloway administratrix of the estate of Mrs. Sarah L. Bland. Judgment for plaintiff, and defendant appeals. The complaint is on the common counts for work done and supplies furnished by plaintiff to defendant’s intestate from May, 1913, to May, 1916, and from May, 1910, to May, 1916.

Briekell, Judge. Bill by J. J. Cudd against James Cowley and others to enjoin an action at law, for an accounting, and to foreclose a mortgage. From decree sustaining demurrers to the bill, complainant appeals.

Petition by the E. C. Payne Lumber Company for certiorari to the Court of Appeals to review and revise the judgment of said court rendered in the case of Mary Simpson v. E. C. Payne Lumber Co., 82 South. 649.

<p>Appeal and errob <&wkey;102—Decree overruling EXCEPTIONS TO SPECIAL PLEA NOT AP-PEALABLE.</p> <p>While Code 1907, § 2838, allowed appeals from a decree overruling exceptions to a special plea, appeals from such a decree are forbidden by the amending act (Acts 1915, p. 137).</p>

L. Sowell, Judge. John W. Robinson, a citizen and taxpayer and a qualified voter of the county of Winston, filed a contest against Winston County of an election held on April 10, 1918, to provide for the issuance of certain funding bonds of the county. On motion of contestee the petition of contest was dismissed, and contestant appeals.

J. Curtis, Judge. Bill by T. J. Moon against W.‘ H. Lollar, to enjoin an obstruction of a public highway. From decree denying the relief prayed, complainant appeals. Counsel cite the following authorities in support of its contention that the court erred in the decree rendered: 122 Ala. 184, 27 South. 303; 129 Ala. 478, 29 South. 683, 87 Am. St. Rep. 71; 128 Ala. 208, 30 South. 526, 55 L. R. A. 211; 66 Ala. 89; 84 Ala. 220, 4 South. 153; 111 Ala. 148, 18 South. 565, 56 Am.

Locke, Judge. Bill by W. H. Gwin and others against H. L. Franklin, to quiet title to certain mineral interests. Decree for complainants, and respondent appeals. A motion to suppress depositions should have prevailed rule 49, Chan. Prac., and cases there cited. Evidence of transaction with deceased persons are not admissible. Section 4009, Code 1907, and cases cited.

C. B. Gwin, Judge. Action by Miss Roehel Canidate against the Western Union Telegraph Company for damages for injuries as set forth in the complaint. Judgment for plaintiff, and defendant appeals.

L. Sowell, Judge. Action by Monroe Aaron against P. O. Goodwin for damages for assault and battery. Judgment for plaintiff, and defendant appeals. The assignments of error noted in the court’s opinion are as follows: (2) The trial court erred in permitting the plaintiff, over the objection of the defendant, to testify to the amount paid by him to his physician for treatment of his. injuries.

A. Greene, Judge. Suit by Mabel Smith, as administratrix of the estate of Reuben Smith, against the Alabama Packing Company. From a judgment for plaintiff, defendant appeals. The pleadings and the essential facts sufficiently appear from the opinion.

Locke, Judge. Suit by W. L. Yielding against Solomon Lyons for an accounting, to have a bill of sale declared a mortgage and redeemed. Decree for claimant, and respondent appeals. The bill alleges that Yielding procured from Lyons a loan of $85 for 30 days, receiving therefor a sum of $75 himself, and executing to Lyons a bill of sale for certain Sto.clr in the Julian-Beggs Signal Company; said bill of sale being intended as a security or pledge for the money loaned.

Locke, Judge. Bill by J. R. Tate as solicitor, on the relation of the State of Alabama, to condemn one Paige automobile, with intervention by Marion Washington, who claimed the car. From a decree denying the claim, and condemning the car, claimant appeals. The court erred in permitting the claimant to be asked, “Have you ever been convicted before?” Section 4008, Code 1907 ; 3 Ala. App. 646, 57 'South. 108; 155 Ala. 135, 46 South. 489.

<p>Appeal from Circuit Court, Fayette County ; Henry B. Foster, Judge.</p> <p>Bill by George D. Ray against G. M. Watkins, as executor of the estate of Lizzie Ray, deceased, and others, for specific performance of a contract to convey land. Decree for respondents, and complainant appeals.</p> <p>The bill alleges that Lizzie Ray executed a bond for title to George D. Ray for certain land, and that the purchase money thereof was paid at a later date and Lizzie Ray executed a deed to complainant; but that in the execution of the deed, which was intended to be a warranted deed, the parties thereto, through ignorance or inadvertence, selected as the justice of the peace one A. D. Ray, to take the acknowledgment to the deed, who was the father of the complainant and grantee in said deed. It is further' alleged that Lizzie Ray afterward married G. M. Watkins, and, having died, left a will leaving all of her property to Watkins and naming him as executor. The judge trying the cause found the following facts as a basis for his decree dismissing the bill:</p> <p>“(1) The complainant’s uncle, Alex Ray, at the time he devi--ed the land to Lizzie Ray, then his wife, expressed a request or wish that she should will the land at her death to the complainant, and apparently up to the time of som.e difference, as shown by the testimony of L. B. Thompson, between Lizzie Ray and complainant, when the latter left the place, both Lizzie Ray and complainant expected the land to go to complainant at Lizzie’s death. The undisputed testimony shows that in pursuance of this purpose Lizzie Ray had Mr. J. A. Brown write her will, leaving this land and all her personal property to complainant. But after her marriage to respondent Watkins, Lizzie made another will devising all her real and personal property to her husband.</p> <p>“(2) Lizzie Ray up to the time of her death was in possession of the land,- claiming absolute title to it, and during her life neither she nor complainant ever made mention -of his having executed a deed to complainant, . except that complainant claims to have showed it to his brother, Mack Ray. On the contrary, Lizzie inferentially denied ever having made a deed to complainant, when she told L. B. Thompson, in the fall of 1912, after the date of the instruments relied on by complainant, that she ■was rid of complainant and was glad to get rid of him and it seemed to her that complainant got mad and wanted her to make him a deed for staying there.</p> <p>“(3) If the bond for title and deed were in fact executed, they were withheld from record, and their existence was kept secret from all •except complainant, his father, his brother, and his stepbrother. I have reached this conclusion notwithstanding the testimony of George Gurley, which does not impress me, because it hardly is probable that after a lapse of five or six years this witness would be able to recall the date of a casual call by the house of Lizzie Ray, and, further, because the statement alleged by him to have been made by A. D. Ray, or complainant, is not consistent with their seemingly studied care to keep the existence of that document secret until after the death of the principal obligor, if it in fact was executed. It hardly is probable, in view of their continued reticence to all their friends, that they would have proclaimed the fact to a comparative stranger in that neighborhood.</p> <p>“(4) With the exception of complainant’s alleged disclosure to Mack Ray, his brother, the day of the alleged execution of the deed, complainant did not disclose his claim to having a deed until about three weeks after Mrs. Watkins’ death, although the day after her burial he saw defendant Watkins and asked him if he had found among Mrs. Watkins’ papers a will or deed to him, and was informed by Watkins that he (Watkins) was claiming the land under Mrs. Watkins’ will.</p> <p>“In these circumstances it requires clear and convincing proof of the execution of the deed ;and bond for title to satisfy the mind that they were in fact executed, and especially should the proof be free of marks of suspicion. All the witnesses were examined orally before the court, and I thus had opportunity to observe the bearing and demeanor of the witnesses, and in a general way know the personal character of most of the witnesses.</p> <p>“The alleged bond for title makes no mention of a life estate to be reserved to Lizzie Ray, but calls for the execution of a warranty deed, and, in legal effect, a deed granting the present right of enjoyment, and the consideration expressed in the bond for title is $300, the evidence showing that the property was worth ?over $2,000. Under this bond for title the complainant had the right to compel the execution of a warranty deed with present right of enjoyment fdr the sum of $300, and could then eject Mrs. Lizzie Ray (Watkins) from this land, which was substantially all the property she owned. But when the deed is written there is inserted a condition that it is to take effect at the death of Lizzie Ray, and not before. Under the bond for title, if genuine, complainant could have compelled the execution of a deed conveying a present right of possession. If a deed were fabricated for the purpose of making a false claim, the insertion of such a clause might be thought more readily to explain the failure to record the deed and the keeping secret of the claim to the land through a number of years, and until after the 'death of the alleged grantor.</p> <p>“The alleged circumstances of the execution of the bond for title are, I am convinced, suspicious. According to the testimony of complainant and Ms witnesses there just happened to be present as witnesses complainant’s father, his brother, and his stepbrother. The complainant testified that the trade between him and Lizzie Ray called for a deed to be executed that morning, and the only reason it .was not executed was because his father, being a justice of the peace in Tuscaloosa county, could not take an acknowledgment in Eayette county. Apparently for that reason alone complainant asserts that without any change of the terms of the trade, except as the bond for title changed them, Lizzie Ray gave up her right to present payment of the purchase money and complainant his right to present execution of the deed, and postponed the completion of the transaction for nearly two months.' And this occurred .although the transaction was in the morning and within a mile of a competent justice of the peace or notary public, to obtain whose services no effort whatever was made. If that justice or notary had been called in, complainant,' if he in fact made the trade with Lizzie Ray, would have had a deed executed under circumstances which would have dispelled all suspicion, as to the bona tides of the transaction.</p> <p>“Likewise is the testimony with reference to the execution of the deed. -Complainant and Lizzie Ray lived within a mile of a competent justice or notary public of Eayette county. But, instead of having that justice write the deed and take the acknowledgment, complainant says they took a long journey to his father’s home in Tuscaloosa county, and, as in the case of the bond for title, the only persons who witnessed the execution of the deed were members of complainant’s immediate family. He attempts to explain this by saying that Lizzie Ray would not have anybody but his father make the deed. But the testimony shows that she had a friend, Mr. J. A. Brown, in Berry, to whom she had gone to write the will in which she left her property to complainant. It is a fact of general knowledge that most people, when they do'not employ a lawyer, are more solicitous to have a friend in whom they have implicit confidence to make their wills than they are with reference to any other kind of document. So it hardly seems reasonable that, having such a friend within a mile of her residence to whom she could have gone for advice and for the making of the deed, Lizzie Ray, in feeble health, as the testimony shows, should have gone a journey of 15 to 18 miles in winter weather for the purpose of having complainant’s father make the deed, for the sole reason that there was no one else whom she would trust to make it for her.</p> <p>“Complainant’s conduct and declarations after the date he claims the deed was executed are wholly inconsistent with his claim to have had a deed since Eebruary 2, 1912. J. B. Hogg, a man of good character and a credible witness, testified positively that in the fall of 1912, when complainant was trying to get him to buy the land, he went on it with complainant; 'that complainant asked him not to mention anything about his selling the place to Lizzie Iiay; that the witness then asked complainant if he bad a deed to the land, and complainant replied that be did not have á deed to it, but he could get one for the witness if be bought it. This occurred within less than a year after the date of the deed which complainant offered in evidence, and he could not have forgotten that be had a deed, if in fact he had one.</p> <p>“J. H. Stone, complainant’s pastor, testified that the day after Mrs. Watkins was buried he accompanied complainant to Tuscaloosa, at the latter’s request, and to be a witness to whatever might occur, to see Watkins; that complainant asked Watkins if he had found in Lizzie Ray’s papers a will or .deed to the complainant for this land; that Watkins told him he had not, but that she had left a will giving everything to him (Watkins); that they accompanied Watkins to the office of the probate judge and had the will read over to them, and that complainant, though Watkins asserted ownership under his will, did not then claim to have a deed to the land, but did ask Watkins if he had found a will or deed to complainant for the land.</p> <p>“J. A. Alexander testified that he went out of town with complainant on his return trip on the day he saw Watkins in Tuscaloosa; that complainant told witness that he had a will to the land and Watkins had a will to it; that he thought he could ‘bust’ the Watkins will, and as his reasons for thinking he could break the Watkins will stated that his uncle willed the place to Lizzie Ray and told her he wanted complainant to have it at her death, and that if he knew that she would not will complainant the place he himself would will it to him then. Complainant then did not make any assertion he had a deed, but claimed it under a prior will of Lizzie Ray, and discussed the probability of making good his claim to the land by breaking the Watkins will.</p> <p>“J. B. Wheat testified that he heard a conversation between complainant and Wheat’s wife, complainant’s sister, some four or five days after Lizzie Watkins’ death; 'that in that conversation complainant told Mrs. Wheat that he had seen the Watkins will and that it was good; that he could not break the will; that in reply to a question by Mrs. Wheat as to what complainant was going to do about it complainant replied that he was going to sue old man Watkins for the money due to him for improvements he made on the place; and that complainant said nothing about having a deed to the place.</p> <p>“J. A. Brown, who wrote the will in which Lizzie Ray left the property to complainant, testified that shortly after Mrs. Watkins’ death complainant went to see him and asked him if he remembered writing such a will and the contents, and that complainant then made no mention of having a deed to the place; that about three weeks afterwards complainant again went to see him and then claimed that he had a deed which Mrs. Watkins delivered to him some time during the summer before she died. This was the summer of 1915, whereas complainant testified that the deed was delivered to him in the winter of 1912.</p> <p>“The complainant’s possession of the bond for title is not very satisfactorily explained. Complainant says he turned it back to Lizzie Ray at the time she delivered the deed, and explains his possession of it on the trial by saying that Lizzie Ray afterwards gave it to him. It appears that Lizzie Ray held on to all papers whether they were important or not, as shown by the testimony of complainant that she kept carefully the old form of bond for title. This habit, it seems, would have led her to keep the $1,500 bond for title which had been delivered back to her as evidence that its conditions had been complied with.</p> <p>“Lizzie Ray could not read or write. Complainant testified that she kept this old form of bond for title among other papers; that neither he nor his father could write a bond for title; and that Lizzie Ray went to her trunk and got out this form from among other papers and brought it to him to copy, although she could not read or write.”</p> <p>Counsel insist, first, that specific performance will be enforced against the executor, that the deed to Ray will be construed as a deed, and not a will, and that, though ineffectual to convey title, it will be construed as a bond for title; but, in view of the opinion, it is not deemed necessary- to here set out the authorities cited. They further insist that no weight can be given the finding of the trial court, but that the appellate court must weigh the evidence and render the proper decree, citing section 5955, subd. 1, Code 1907; 127 Ala. 376, 30 South. 555; 133 Ala. 599, 32 South. 495; 172 Ala. 655, 55 South. 293.</p> <p>Most of the evidence was ore tenus, and the questions presented are of fact, and not of law, and the appellate court will not disturb the decree of the trial court, unless it is manifestly unjust. 199 Ala. 152, 74 South. 62.</p>

Merrill, Judge. Bill by the State of Alabama to condemn one Winton Six touring automobile and the prohibited liquors therein contained, found in the possession of Bob Merrill. From the decree rendered, complainant appeals. Sections 2 and IS of the Bone Dry Law are intended to cover just the case made by the evidence, and the court erred in denying relief. Nothing can be added to the exhaustive opinion of the trial court, and we call the court’s attention to said opinion.

Action by Horace Turner, doing business as Horace Turner & Co., against the Munson. Steamship Company, for loss of certain lumber. Judgment for plaintiff, and defendant appeals. Count 10 alleges a delivery by the plaintiff to the defendant of certain lumber to be shipped from the port of Mobile to a firm in Cuba to be carried for hire from Mobile to Cuba and there delivered.

Locke, Judge. Bill by Sylvester Blythe and others against Eugene F. Enslen and others, as stockholders and officers of the Jefferson County Savings Bank, for an accounting and a money decree. Prom a decree sustaining demurrers to the bill, complainant Blythe appeals. The superintendent of banks is not the only person authorized to institute a suit of this kind. Acts 1911, p. 50; 154 Ala. 151, 45 South. 841; 36 Cyc. 1128.

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

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

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

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

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

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

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

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

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

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

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

Merrill, Judge. Action between B. F. Jones and others and the Commissioners’ Court of Calhoun County and others. From a decree adverse to Jones and his coparties, they appeal.

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

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

<p>Certiorari to Court of Appeals, Petition by Jack McCaig for certiorari to' review judgment of Court of Appeals (16 Ala. App. 581, 89 South. 155), affirming judgment of conviction in prosecution of petitioner by the State.</p>

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

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

<p>Certiorari to Court of Appeals. Petition for certiorari by Sid Marsh and another to review judgment of the Court of Appeals (16 Ala. App. 597, 80 South. 171), affirming conviction.</p>

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