Volume 204 — Alabama Reports

Certiorari on behalf of the State of Alabama to the Court of Appeals to review and revise the judgment of said court, rendered in the appeal of Robinson v. State of Alabama, 86 South. 927. The appellate court was in error in holding that the state had elected to prosecute the defense of selling liquor. 13 Ala. App. 246. 68 South: 799; 69 South. 1020; section 7565, Code 1907; 14 Ala. App. 638, 72 South. 293.

<p>Certiorari to Court of Appeals.</p> <p>Petition of Joseph J. Morris, individually and doing business as the Southern Steam Carpet Cleaning Company, for certiorari to the Court of Appeals to review and revise the judgment of said court rendered in the case of Southern Steam Carpet Cleaning Co. v. Mrs. Godfrey Goldman, 84 South. 478.</p> <p>Count AA is as follows:</p> <p>“Plaintiff claims of the defendant the sum of $300 as damages, for that heretofore, on, to wit, the--day of July, 1917, the more particular time being to the plaintiff unknown, the defendant bailee for her received from plaintiff a certain oriental rug, to be redelivered to plaintiff within a reasonable time, to wit, one week, and defendant so negligently conducted • itself in and about its duties as said bailee that it did not have and has not returned said oriental rug.”</p> <p>A gratuitous bailee is only liable for gross negligence. 29 Ala. 265. An ordinary bailee is only held to such diligence as he gives his own business affairs. 46 Ala. 293; Cooley on Torts, 131. A defendant may show bis good faith, for the same reason that a plaintiff may show aggravated circumstances, in an action for damages. 13 Cyc. 121. A coinXilaint which does not contain a substantial cause of action will not support a judgment. 19S Ala. 445, 73 South. S18; 131 Ala. 220, 31 South. 566; 113 Ala. 402, 21 South. 938. If the judgment is for a greater amount than is sued for, it will be reversed. 1 Ala. 89; 1 Stewart, 79.</p> <p>No brief reached the reporter.</p>

Action by A. H. McCormick against H. L. Badham in assumpsit. Judgment for defendant, and plaintiff appeals. The third, fourth, fifth, sixth, and seventh counts were the common counts.

Grayson, Judge. % Petition by the State of Alabama, on the relation of the Jett-Muths Construction Company, for mandamus to George ¡E. Stone, as Treasurer of Mobile County, to require him to register and number certain county wai;Yants. From a decree granting the writ, the Treasurer appeals. Loc. Acts 1907, p. 722, § 3, has no bearing on this case, since money to be paid on the warrants is derived from a property tax levied under the authority of Acts 1915, p. 412.

W. Haralson, Judge. Bill to redeem by W. W. Vaughn against S. E. Wooten and others. From the decree rendered, respondents appeal. J. T. Vaughn, brother of W. W. Vaughn, owned 80 acres of land, which was covered by a $500 mortgage to Mrs. Mitchell. Under an agreement he was to sell the land for $1,000, the purchaser to pay half cash and to assume the mortgage.

Locke, Judge. Bill by Bessie R. Allen against William M. Duke to dissolve partnership and for a receiver. From an order appointing receiver, respondent appeals. The factsi are sufficiently stated in the opinion of the court. Error infected the order of the court appointing a receiver. 54 Ala. 466; 180 Ala. 350, 60 South. 931; 147 Ala. 340, 41 South. 909; 201 Ala. 219, 77 South. 745; 142 Ala. 448, 38 South. 664, 4 Ann.

'E. Gamble, Judge. Suit by W. T. Brock against Mattie Hall-man and others. From an adverse decree, the named defendant appeals.

<p>I. Principal and agent <&wkey;48 — Agent required to exercise authority for principal’s benefit.</p> <p>It is agent’s duty to act in matters touching the agency with due regard to the interest of his principal, since in accepting the agency he impliedly undertakes to give principal his best care and judgment, and to use the power conferred upon him for the sole benefit of principal consistent with the purpose of the agency.</p> <p>.2. Powers &wkey;> 13 — Trusts @=60 — Cannot continue beyond period of purposes for which created.</p> <p>Powers and trusts cannot continue beyond the period of the purposes for which they are ■created.</p> <p>.3. Principal and agent &wkey;>3l, 151(2) — Power extinguished by accomplishment of purpose.</p> <p>Where debtor executed power of attorney to convey land for the payment of the debt, the extinguishment of the debt before the exercise of the power operated to extinguish the power, and if the purchaser had notice of the lapse of the power, or the circumstances were such as to charge him with notice, he is not a bona fide purchaser.</p> <p>■4. Principal and agent @=151 (2¡) — Purchaser not bona fide, in view of facts putting him on inquiry as to termination of authority.</p> <p>W’hore a debtor executed a power of attorney to convey his property for payment of debt, on creditor’s request, and power was exercised more than five years after the granting of the power, after debtor had paid debt and been continuously in possession of the land as owner, the purchaser, who paid only about one-seventh of its real value, though he had knowledge of actual value, held not a bona fide purchaser; the facts being sufficient to put him on inquiry as to whether debt had been paid.</p> <p>5. Powers @=32 — Power to convey on written consent of specified person must be executed by such person joining in conveyance or certifying consent thereon.</p> <p>Where debtor executed power to third person to convey land on written request of creditor for purpose of paying debt, it was necessary, under Code 1907, § 3434, that creditor "join in conveyance, or that he certify his consent thereon; such power not being a simple power of attorney, and therefore not within the exception made by section 3440.</p> <p>6. Quieting title <@=7(3) — Deed invalid on face not cloud on title.</p> <p>Where deed recited that it was executed pursuant to power of attorney, which required written consent of certain person as a condition to its exercise, but such person neither joined in the conveyance nor certified his consent thereon, as required by Code 1907, § 3434. the deed was invalid on its face, and therefore did not constitute a cloud oh grantor’s title.</p> <p>7. Quieting title <&wkey;34(l)— Bill held sufficient.</p> <p>Bill to quiet title, dated April 27th, averring that complainant was in the actual possession of the lands, claiming them- as owner, and exercising acts of ownership over them, on February 19th, the date of the execution of certain deed,. that respondent held deed and on the faith thereof had executed a mortgage to a correspondent, that both deed and mortgage had been entered of record, and that no steps had been taken by respondent to acquire possession from complainant, held sufficient, under Code 1907, § 5443; it being a necessary inference that' complainant was in possession at time of filing bill, and that no suit was pending to test respondents’ rights.</p>

Action by Kate O’Connor against the Montgomery Light & Traction Company for damages for personal injuries. Verdict for the defendant, which on motion of plaintiff was set aside, and defendant appeals.

<p>1. Statutes <&wkey;224 — Meaning of words differ in different statutes.</p> <p>The extent of the meaning of words or phrases is not always the same, when used in different statutes relating to different subjects.</p> <p>2. Words and phrases — “Roads.”</p> <p>The word “roads” applies generally to highways, and in its broader generic sense includes highways, streets and lanes (citing 7 Words & Phrases, First Series, pp. 6250-6252, 6684).</p> <p>3. Highways &wkey;396(l) — “Road,” in statute relating to superintendent of public roads, held to include streets.</p> <p>The word “road,” 'as used in Loc. Acts 1907, p. 727, §§ 2, 3, providing for the election of a superintendent of public roads and employment of convicts and his responsibility to board of commissioners, was intended to embrace thoroughfares, both outside and inside the city, which were covered by the act.</p> <p>4. Municipal corporations <@^761 (I) — City liable for injury on sidewalk in “street” under control of county.</p> <p>The word “street,” as used in Loc. Acts 1907, p. 727, § 1, divesting the cit^ of Mobile of, and investing the county with, the control, management, and supervision of the streets named therein, was not intended to include sidewalks, which still remain under the control and supervision of the city, which remains liable for injuries arising from defects therein.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Street.]</p>

B. Poster, Judge. Action by Willie Bass and others upon a fraternal benefit certificate issued by the Sovereign Camp, Woodmen of the World, to Willis H. Bass upon his life. Judgment for plaintiffs, and defendant appeals.

<p>Appeal from Circuit Court, Chilton County; Leon McCord, Judge.</p> <p>Petition by the Birmingham Trust & Savings Company to require D. F. Green, Superintendent of Banks, to pay a portion of its claim against a defunct bank. From decree overruling demurrers to the petition, the superintendent appeals.</p> <p>The suit was against the bank, and not the Superintendent of Banks, and was not such a presentation, or within the time required by Acts 1911, p. 62, § 10.</p> <p>The contentions of the appellant are fully answered by the following authorities: 130 Ala. 269, 30 South. 564; „185 Ala. 333, 64 South. 366.</p>

G. Carelton; Judge. Petition by S. C. Jackson and others for the sale of certain lands for division, naming Olivia Pollard and others as respondents. From the decree, respondents appeal. Appellees filed their petition in the probate court of Tallapoosa county, seeking a sale of certain lands therein described for partition am'ong the tenants in cqmmon. An order of sale was made by said court, and the sale had in conformity therewith.

<p>I.Pleading <&wkey;9 — Legal effect of contract may be stated.</p> <p>In an action by an employé of' a shipbuilding company against the independent contractor engaged to drive piles, a general averment that the injured employé was entitled by reason of the contract to be on the pile driver at the time he was injured is sufficient, for in pleading a contract it is permissible to state its legal effect.</p> <p>2. Negligence <&wkey;lll(!) —Specific averment unnecessary.</p> <p>In an action by an employé of a shipbuilding company, injured while on a pile driver belonging to defendant, engaged to drive piles for the company, where it was alleged that by virtue of the contract between the parties plaintiff was entitled to be on the pile driver at the time of the accident, the imputation that plaintiff was á wrongdoer or trespasser was rebutted, and a specific averment, pointing out the negligent act proximately causing the injury, was not necessary, and a general averment was sufficient.</p> <p>3. Negligence <&wkey;4 11 (3) — Pleading should show agency inflicting injury.</p> <p>In an action for injuries to an employé of a shipbuilding company on a pile driver belonging to defendant engaged in driving piles for the company, counts are open to demurrer when they fail to show what agency or instrumentality inflicted the injury.</p> <p>4. Pleading <&wkey;298 — Grounds of demurrer, not assigned, will not bo considered.</p> <p>Under Code 1907, § 5340, a demurrer to counts is properly overruled, where the only grounds to which they were subject to attack were not assigned.</p> <p>5. Negligence <&wkey;ll7 — Plea held demurrable.</p> <p>In an action by an employé of a shipbuilding company, injured while on a pile driver belonging to defendant engaged to driyc piles for the company, where it was alleged that by reason of the contract plaintiff was entitled to be on the pile driver at the time of the accident, a plea, alleging that prior to the time of the accident plaintiff was directed by his superior in employ of the company not to go upon the pile driver, but in violation of such instructions went thereon and was injured, is open to demurrer; it not being shown that the alleged superior had authority to give instructions which plaintiff was bound to obey, or that the violation of such instructions in any wise increased the hazard of plaintiff’s employment.</p> <p>6. Negligence t&wkey;>I24(l) — Evidence as to conduct of person injured held admissible.</p> <p>In an action by an employé of a shipbuilding firm, injured while on a pile driver of defendant engaged to drive piles for the firm, where plaintiff1 offered evidence tending to show that it was necessary in the performance of his duties to go upon the pile driver, defendant was entitled to offer countervailing evidence.</p> <p>7. Negligence 124(1) — Evidence of commands held inadmissible.</p> <p>Where plaintiff, an employé of a shipbuilding company, injured while on the pile driver of defendant, which was doing work for the company, contended that he was entitled by reason of the contract to be on the pile driver, and that it was necessary in the performance of his duties, evidence that employes of defendant forbade plaintiff from going on the pile driver is inadmissible without further showing that such employés were persons in a position of authority.</p> <p>8. Negligence <&wkey;G24(l) — Evidence as to commands held inadmissible.</p> <p>Where plaintiff, an employé of a shipbuilding company, injured while on a pile driver of defendant which was doing work for the company, asserted his right to be upon the pile driver, and defendant denied the same, the question as to whether one in employ of the ■company directed him not to go on the pile driver was properly excluded on objection, it •appearing that witness was not in the company’s service.</p> <p>9. Infants <&wkey;72(2)~Prior to emancipation, infant cannot recover for loss of time.</p> <p>Prior to the emancipation of an infant, he cannot recover in an action for damages for personal injuries for loss of time, or for expenses in the cure of his injuries.</p> <p>10. Negligence <&wkey;>32(!) — Contractor must use ordinary care as to inspector.</p> <p>An independent contract owes employés of the principal rightfully on the premises for purposes of inspection the" duty of ordinary care to avoid inflicting injuries.'</p> <p>11. Negligence <@=332(3) — Inspector present for his own purposes cannot recover.</p> <p>Where an employé of a shipbuilding company, injured while on the pile driver of defendant, which was doing work for the company, asserted that he was rightfully on the same in the performance of his duties of- inspection, there can be no recovery if ho was on the pile •driver for' his own purposes, engaged in conversation with employés thereon, and instructions to that effect were improperly refused.</p> <p>12. Trial <&wkey;260( I) — Requests covered properly refused.</p> <p>The refusal of a request covered by the charge given was not error.</p>

Appeal fiom Circuit Court, Chilton County; F. Lloyd Tate, Judge. Bill by F. B. Collier against/Grady Reynolds, as Treasurer, and others, to enjoin the payment of the salary of the Judge of Probate of Chilton County, etc. From a decree overruling demurrers to the petition, respondents appeal.

E. Gamble, Judge. Petition for writ of certiorari by C. E. Mills, to be directed to the Court of County Commissioners of Conecuh County, to review and vacate an order of said court levying an automobile tax. From the decree rendered,' the .petitioner appeals.

S. Williams, Judge. Bill by the state of Alabama, on the relation of its solicitor, T. M. Patterson, to condemn • one five-passenger Paige automobile in the possession of John C. Collins, because engaged in illegal liquor traffic, with claim by L. L. Purvis. From the decree rendered ordering the sale of the car, the costs of the seizure and so1 much to Purvis, with balance if any to the officers and the state, the state appeals.

W. Haralson, Judge. Bill by the State of Alabama against W. E. Bradford, as County Superintendent of Education, and the sureties on his official bond, to recover an amount alleged to have been misappropriated by Bradford of the public funds coming into his hands by virtue of his office, with ancillary writ of attachment. From a decree granting the relief prayed, respondents appeal.

<p>Appeal from Circuit Court, Etowali County; O. A. Steele, Judge.</p> <p>Action by Neona Jones, as administratrix of the estate of George Jones, against the Gulf States Steel Company for damages for the death of her decedent while in the employment of the defendant. Judgment for the plaintiff, and defendant appeals.</p> <p>The statute of limitations was a bar to count 1, and the court erred in its oral charge, and in refusing the defendant’s charge thereon. 9 Ala. 524; 158 Ala. 396, 48 South. 485, 17 Ann. Oas. 516; 177 Ala. 441, 59 South. 155. Gulf States Steel Co. v. Jones, 203 Ala. 450, 83 South. 356. The court erred in its charge on the life expectancy. 144 Ala. 192, 40 South. 280. Under the Homicide Act the damages are punitive, not compensatory. 191 Ala. 398, 67 South. 604.</p> <p>Although a charge is erroneous, if no injury is done, the reversal should not follow. 31 Ala. 59,. 68 Am. Dec. 150; 127 Ala. 445, 30 South. 61; 143 Ala. 411, 39 South. 136; 202 Ala. 312, 80 South. 395. The statute of limitations was not applicable, and the failure to reply was not prejudicial. 200 Ala. 617, 76 South. 975; section 4855, Code *1907. Counsel discuss other assignments of error, but without further citation of authority.</p>

<p>1. Deeds <&wkey;53 — Whether defendant signed and acknowledged the deed involved held for jury.</p> <p>Where defendant denied having signed and acknowledged the deed on which plaintiff relied, and testimony of his witnesses indicated that he was so intoxicated at the time that he did not know what he was doing, the question was, under the evidence, for the jury.</p> <p>2. Homestead <&wkey;I62(l) — 'The owner and occupant of a homestead may abandon it.</p> <p>The owner and occupant of a homestead may abandon it, in such sense as to destroy its homestead character, by ceasing to occupy it as such without any definite intention to return.</p> <p>3. Homestead &wkey;>l62(l), 181(3) — A temporary absence is not abandonment, nor conclusive evidence of intention to abandon.</p> <p>A temporary absence from a homestead with intention to return is not an abandonment, no other homestead being acquired in the meantime; and the duration of such absence, though relevant to the question of intention, is not conclusive.</p> <p>4. Homestead &wkey;>l8l'/2 — Intent as to abandonment held for jury.</p> <p>Whether defendant intended to abandon his homestead held, under the evidence, for the jury.</p> <p>5. Homestead &wkey;>!8l (3) — Offer to sell not evidence of intention to abandon.</p> <p>An offer to sell one’s homestead, not then in actual occupation as such, is a fact to be considered, but it is not conclusive evidence of intention to abandon.</p> <p>6. Homestead &wkey;G67 — Invalid conveyance with delivery of possession constitutes abandonment.</p> <p>The execution of a deed to homestead without conformity to legal requirements, if followed by delivery of possession to the purchaser, would be an abandonment, but the execution of a deed invalid without a previous abandonment is not itself a conclusive act of abandonment, unless accompanied by surrender of possession to the purchaser.</p>

W. Fergus on, Judge. Action by the City Cleaning Company, a partnership composed of R. R. Hudson .and W. Gilmore against the Birmingham Waterworks Company, for damages for cutting off their water. Judgment for defendant, and plaintiffs appeal.

Action by Sudie N. McWilliams, as administratrix of the estate of L. L. McWilliams, against the Birmingham Southern Railway Company for damages. From an order setting aside a judgment in her favor, plaintiff appeals.

S. Williams, Judge. Bill by C. J. Brock and another against the Clio Banking Company and others to reopen a settlement and purge the account of usury. From a decree for complainants the respondent bank appeals. The attorney’s fee was fixed by the agreement of counsel, and was; binding. 97 Ala. 505, 11 South. 836. The accounts were novated, and closed up in a bona fide manner, and cannot be now opened to be purged of usury. 200 Ala. 129, 75 South. 577.

W. Ferguson, Judge. Assumpsit by the Lawrenceburg Roller Mills Oompan3r against Charles A. Jones & Company. Judgment for the defendant, and plaintiff appeals. The trial court erred in overruling demurrers to defendant’s pleas 3 to 8, inclusive. 70 Ala. 417; 155 Ala. 516, 46 South. 760; 174 Ala. 389, 57 South. 464. The court erred in giving the affirmative charge for thd defendant. 222 U. S. 511, 32 Sup. CL 114, 56 L. Ed. 288; 181 Ala. 591, 61 South. 947.

Coleman, Jr., Judge. Petition of Katherine Glover, as an heir of the estate of George Woodward, deceased, then being administered in the probate court by A. B. Sawyer as administrator, to charge Andrew Woodward with an advancement of 20 acres of land as equivalent to his portion or share in the estate. From a decree denying the petition, petitioner appeals. The court erred in excluding the deed as evidence. Sections 1 and 4289, Code 1907.

W. Haralson, Judge. Assumpsit by the Bank of East Chattanooga against O. W. Clayton. Judgment for plaintiff, and defendant appeals. ■ Count 1 is as follows; The plaintiff claims of the defendant the sum of $1,000 due from him by promissory notes made by him on January 18, 1917, and due and payable 12 months from date, with interest thereon from date.

A. Steele, Judge. Ejectment by J. A. Thomas against Mary K. Little and another. From judgment for plaintiff, the named defendant appeals. The evidence of the witness Herzberg was relevant, and the defendant was entitled to the affirmative charge. 187 Ala. 350, 65 South. 796; 201 Ala. 366, 78 South. 222; 174 Ala. 113, 56 South. 532; 130 Ala. 313, 3t) South. 493. It was error to admit the account of Hagin, as it appeared on the ledger. 63 Ala. 494, 35 Am.

<p>Appeal from Circuit Court, Jefferson County ; H. B. Heflin, Judge.</p> <p>Horace Chisolm, alias, etc., was convicted of robbery, and he appeals.</p> <p>The court erred in admitting the Stevens letter. 203 Ala. 349, .83 South. 93; 188 Ala. 237, 66 South. 452; 163 Ala. 272, 50 South. 906; 149 Ala. 210, 43 South. 71; 149 Ala. 552, 43 South. 108; 114 Ala. 94, 21 South. 934; 112 Ala. 304, 20 South. 413; 52 Ala. 183 ; 74 Mo. 33; 9 Tex. App. 283. Counsel discuss other assignments of error, but without further citation of authority.</p> <p>No brief reached the reporter.</p>

<p>Appeal from Circuit Court, Jefferson County ; Hugh A. Locke, Judge.</p> <p>Bill by A. T. Newell and others against J. B. Bushard, as executor, and others, to enjoin the prosecution of an action at law. From a decree for respondents, complainants appeal.</p> <p>The bill is filed to enjoin an action at law brought by the respondents against the complainants, and is based on the ground that the complainants have settled and discharged the claim there sued on by the payment of $1,000 to Mrs. Mary Bushard, the widow and sole distributee of the estate of Thomas E. Bushard, and that she has executed a full and complete discharge in writing of complainants’ liabilities for said claim. The basis of the action at law is the alleged negligent conduct of these complainants, which proximately caused the death of plaintiff’s intestate, and the action is filed under section 248.6, Code 1907. The deceased was killed in a collision with the motorcar of the complainant *in October, 1917, and J. B. Bushard qualified as executor in January, 1918, and filed his action for damages during the following March. In October, 1918, complainants here made said settlement with the widow, Mrs. Mary Bushard. In June, 1919, the complainants filed this bill of complaint and procured the issuance of an injunction against the said executor and his several at-</p> <p>torneys, who are prosecuting said action at law. Afterwards, on motion of said respondent, the temporary injunction was' dissolved for want of equity in the bill, and from that order this appeal is taken. The attorneys for the executor in the lawsuit are made parties respondent to this bill with the allegation that they are asserting their right to a lien on the, / cause of action sued on, and that unless enjoined from so doing they will intervene and prosecute said suit to judgment for the recovery of an attorney’s fee. The bill alleges that the said death of Bushard did not result proximately from the defendant’s negligence as charged in the complaint and that there is in fact no cause of action against these complainants. The bill contains a prayer for a general relief, but does not offer to do equity.</p> <p>The validity of the bill was sustained in a similar case. 171 Ala. 609, 55 South. 104, Ann. Cas. 1913B, 225. Under the homicide statute the damages form no part of the estate of the decedent, and hence the executor was without right to recover. 157 Ala. 345, 47 South. 166, 18 L. R. A. (N. S.) 568; 174 Ala. 213, 56 South. 912. Under the averments of the bill, the attorneys had no valid claim or lien for attorney’s fee, which they could assert against complainants. 44 Ala. 611; 5'Pom. Eq. Jur. § 2066 et seq.; 1 Pom. Eq. Jur. § 236 et seq. A failure to offer to do equity is an amendable defect. 130 Ala. 502, 30 South. 517; 116 Ala. '494, 22 South. 863; 157 Ala. 299, 47 South. 701. It was not necessary to offer to do equity here. 182 Ala. 291, 62 South. 692, Ann. Cas. 1915D, 738; 157 Ala. 32, 47 South. 251.</p> <p>This case is ruled by the case of Johnson v. Longmire, 39 Ala. 143. But see, also, 18 Ala. 19; 59 Ala. 272; 143 Ky. 171, 136 S. W. 212, 35 L. R. A. (N. S.) 211; 199 Ala. 463, 74 South. 931; 149 Ala. 515, 43 South. 411; section 2602, Code 1907.</p>

Merrill, Judge. Bill for divorce by Mary I. Hudson against W. K. Hudson. Decree for complainant, and respondent appeals. Where cruelty is alleged as a ground for divorce, the bill should state with certainty time and place. 19 Ala. 307 ; 23 Ála. 785; 44 Ala. 435. It should also be specific in allegation of violence attended with danger. 39 South. 679. It should also state the state and county where the separation occurred. Section ■ 3801, Code 1907.

Pugh, Judge. Action by Grace M. Loveless, as administratrix of the estate of W. R. Loveless, against the Clinton Mining Company, for damages for the death of her intestate while in its employ. From a judgment for plaintiff, defendant appeals.

Action by the State (of Alabama against the Atlantic Coast Line Railway Company to recover franchise tax. From a judgment for the State, defendant appeals. The corporation was a Virginia corporation. Acts Gen. Assem. Va. 1899-1900, p. 24; 7 R. C. L. -132; 130 U. S. 1, 9 Sup. Ct. 409, 32 L. Ed. 837; 145 U. S. 393, 12 Sup. Ct. 953, 36 L. Ed. 748; 118 U. S. 290, 6 Sup. Ct. 1094, 30 L. Ed. S3; 161 TJ. S. 677, 16 Sup.

Petition of Leah McNeil for certiorari to the Court of Appeals to review and revise the judgment and decision of said court in the case of North Alabama Traction Co. v. Leah McNeil, 85 South. 568. The whole count must be considered in arriving at its true and full meaning. 163 Ala. 241, 50 South. 996.

<p>1. Master and servant <&wkey;90 — Care required is that of reasonable men in like circumstances.</p> <p>In servant’s action, the jury cannot impose on the master a degree of care beyond that required of reasonable men in like circumstances, and guided by those considerations which ordinarily regulate the conduct of human affairs.</p> <p>2. Master and servant <&wkey;97(2), 101, 102(2)— Injury to servant, while throwing away defective chain, held one that the master was not bound to anticipate; master not insurer.</p> <p>Where an employé of a lumber company was directed to throw away a used chain, and on attempting to throw it from a platform was caught by a loose rivet and overbalanced and thrown from the platform, held that as a guard rail on the platform could not have been more than 15 or 18 inches high, and as the chain was being thrown away, the master cannot be held liable, for the danger could not have been anticipated, and the master is not a guarantor of the servant’s safety.</p>

S. Williams, Judge. Bill by the State, on the relation of the solicitor to confiscate one Buick automobile, seized in the possession of Judge Smith, engaged in transporting unlawful liquors, claimed by Lee Wise. From the decree entered, claimant appeals.

A. Pearce, Judge. Petition by the J. B. McCrary Company for mandamus to require J. C. Brunson, Máyor, and others as the municipal authorities of the Town of Samson, to levy an annual budget sufficient to care for the bonds and interest due petitioner. From a decree sustaining demurrers to the petition, petitioner appeals. The facts sufficiently appear from the opinion of the court. The indebtedness was properly settled and adjusted. Section 1436, Code 1907.

Ex parte application by Acha Hermanos y Cia for writ of certiorari to the court of appeals to review a decision affirming a judgment. in favor of one Rosengrant against petitioner (84 South. 399). Writ denied.

E. Gamble, Judge. Ejectment by Jacob H. Reichert against Jerome H. 'Sheip, Incorporated, and another. From the adverse rulings of the court plaintiff takes nonsuit with bill of exceptions, and appeals.

E. Gamble, Judge. Bill by Frances I. Irwin against J. M. Shoemaker and others to quiet title to land and restrain trespass. From a decree dissolving a temporary injunction, complainant appeals. Equity has jurisdiction to restrain the trespass. 198 Ala. 236, 73 South. 486, L. R. A. 1917C, 232; 92 Ala. 484, 9 South. 262. The wife cannot do indirectly what .section 4494, Code 1907, says she cannot do directly. 185 Ala. 179, 64 South. 312; 195 Ala. 601, 71 South. 177.

A. Pearce, Judge. Isaac-Baldwin wás convicted of robbery, and he appeals.

E. Gamble, Judge. Action by Hays Allen against the Alger-Sullivan Lumber Company for damages for death of his minor son in employment.' Erom judgment for defendant, plaintiff appeals. Appellant sued appellee to recover damages for the death of his son Rupert Allen, a minor between 14 and 15 years of age, who was in the employ of the defendant company.

<p>1. Usury i&wkey;l 15 — Parol evidence admissible.</p> <p>Though several mortgages showed on their face that they were given for the principal sums actually advanced as loans, with interest from date, the court, in suit to declare the final mortgage usurious and for an accounting, could go behind the contract so expressed; paz-ol or extrinsic evidence being admissible to show the contract was usurious in its inception.</p> <p>2. Usury &wkey;>l 17— Payment and receipt of usurious interest evidence of usurious contract.</p> <p>The payment and receipt of usurious interest is prima facie evidence of a prior usurious contract.</p> <p>3. Usury <@=388 — -Renewal of usurious obligations did not purge debt.</p> <p>Renewal of obligations to pay mortgage debt, as embodied in final note and mortgage, did not purge the debt of its taint of usury, present in the inception of the transaction; the renewed obligation, so far as founded on usurious interest previously charged, being without consideration, and unenforceable as between the parties to the usurious contract.</p> <p>4. Bills and notes <&wkey;497(2)— Holder could meet burden as to usury by showing purchase 'or value in due course.</p> <p>In suit to declare note and mortgage usurious, the note being a negotiable instrument, though the rule of pleading required the holder to aver that she acquired the paper in good faith and without notice of usury,' she could meet the burden by showing she was a purchaser for value and in due course, when the burden shifted to complainant maker to show the holder had notice or its equivalent.</p> <p>5. Evidence <&=>75 — Failure to produce evidence creates suspicion.</p> <p>In action for accounting and to redeem from a mortgage claimed to be usurious, where cross-complainant, seeking foreclosure of the mortgage, claimed to be an innocent purchaser for value, and where important evidentiary facts were in the keeping of cross-complainant, the failure to produce them or to account for their absence cast suspicion on the bona fides of her claim.</p> <p>6. Bills and notes &wkey;?497(2) — Evidence for holder insufficient to meet burden to show lack of notice of usury.</p> <p>In suit to declare note and mortgage usurious, and for an accounting, evidence for holder of the mortgage note held insufficient to meet the burden of proof resting on her that she purchased for value and in due course without notice, so that she was not entitled to relief on her cross-bill.</p>

L. Martin, Judge. Action by W. P. Russell, as administrator cum testamento annexo of the estate of W. P. Russell, deceased, against Eva F. Garrett, as executrix of the estate of O. W. Garrett, for breach of contract entered into between their testators. From judgment sustaining demurrers to the complaint, plaintiff appeals.

Action by Y. B. McAleer, as trustee in bankruptcy, against tbe People’s Bank of Mobile to recover a sum of money alleged to have been paid to the bank by Henry C. Meyer, bankrupt. Judgment for the plaintiff, and defendant appeals.

<p>1. Criminal law <&wkey;>88l (2) — General verdict of conviction held to respond to issues raised by pleas of not guilty.</p> <p>When the jury in a capital case decides both the issues raised by pleas of not guilty and not guilty by reason of insanity against the defendant, a general verdict of conviction amply responds to both issues, in view of Code 1907, § 7177.</p> <p>2. Criminal law &wkey;>824(4) — No complaint as to failure to instruct after announcing satisfaction with charge.</p> <p>Defendant cannot complain of failure to instruct concerning his special plea of not guilty by reason of insanity, where his counsel announced his satisfaction with the court’s oral charge omitting any reference thereto; no special charges being requested thereon.</p> <p>3. Criminal law <&wkey;814(IO)— Special charge on plea of insanity properly refused in ábsence of evidence.</p> <p>Court may properly refuse to give a special charge concerning a special plea of not guilty by reason of insanity where there is no evidence to sustain it.</p> <p>4. Criminal law &wkey;>740 — Evidence held insufficient to take to jury issue as to insanity.</p> <p>Evidence that defendant played around with children could do no more than show that he was of low and childish mentality and disposition, and, standing alone, wa's insufficient to take to the jury the issue as to alleged insanity.</p> <p>5. Criminal law &wkey;>331— Burden of showing insanity on defendant.</p> <p>Where a plea of insanity is filed, the burden of proof rests on defendant on such issue, under Code 1907, § 7175.</p> <p>6. Criminal law <&wkey;522(2) — Confession obtained by threat to leave to lynchers inadmissible.</p> <p>A confession obtained by a sheriff by telling defendant that he would leave him to men who had threatened to kill him unless he told the truth would not be admissible in evidence.</p> <p>7. Criminal law <&wkey;736(2) — Admissibility of confession, question for court on consideration of all evidence.</p> <p>Admissibility of a confession in a criminal prosecution is a question for the court on consideration of all the evidence admitted in relation thereto, subject to review on appeal on proper exception reserved.</p> <p>8. Criminal law &wkey;519(3) — Confession as to hiding place of money accompanied by finding it admissible.</p> <p>A part of a confession wherein defendant in a robbery case stated to the sheriff where a part of the fruits of his crime could be found in the woods, where he went, and pointed out the place where the money was found along with defendant’s coat and a pistol, was admissible without regard to its voluntary character.</p> <p>9. Robbery <&wkey;9 — Taking property from presence of person constitutes crime.</p> <p>Taking property from the presence of a person and under his direct physical personal control is the equivalent of taking from his person.</p> <p>10. Robbery &wkey;s24(2) — Evidence held to show intention to take money in pocket of coat taken.</p> <p>Where defendant shot complaining witness twice through the body with a pistol and took his coat which lay beside him and carried it away, held, under the evidence, that the jury were authorized to find that defendant intended to take from the person money in a bag in a pocket in the coat.</p> <p>11. Criminal law <&wkey;736(2) — Instruction submitting admissibility of confessions properly refused.</p> <p>The court properly refused an instruction which, in effect, submitted to the jury the admissibility of confessions.</p> <p>12. Criminal law <&wkey;56l(l) — State not required to remove possibility of innocence, and instruction to that efféct properly refused.</p> <p>The state is not required to remove by proof the possibility that defendant is innocent, but only to establish his guilt beyond a reasonable doubt; and the court properly refused to instruct that, if there was a reasonable possibility or probability that some one else committed the crime, they must find defendant not guilty.</p>

<p>Appeal from Circuit Court, Walker County ; J. J. Curtiss, Judge.</p> <p>Bill by the Warrior Black Creek Coal Company against the Galloway Coal Company to quiet title to the mineral interest in certain lands. From decree for complainant, respondent appeals.</p> <p>Respondent’s right has become absolute by prescription. 171 Ala. 544, 54 South. 685; 170 Ala. 289, 54 South. 415; 160 Ala. 425, 49 South. 578, 135 Am. St. Rep. 107. After 30 years, the proceedings leading to the tax sale will be presumed to have been in all things regular. Section 4846, Code 1907.</p> <p>The doctrine of prescription has never been applied to tax sales, but persons asserting title thereunder must show that in all things they were regular. 202 Ala. 11, 79 South. 309; 190 Ala. 569, 67 South. 381; 174 Ala. 616, 56 South. 995, 40 L. R. A. (N. S.) 890; 155 Ala. 571, 46 South. 853; 145 Ala. 159, 41 South. 297, 117 Am. St. Rep. 26.</p>

S. Williams, Judge.. Bill by the State of Alabama, on the relation of T. M. Patterson, against one house and lot, particularly described in the bill, and Joe Crews and others to condemn said house and lot to forfeiture and sale, because of its use as a distillery for the manufacture of unlawful beverage. From a decree overruling demurrers to the bill, claimant named appeals. The substance of the bill sufficiently appears from the opinion of the court-.

It is not for the clerk to determine the legality of the order of the judge, nor is it competent for one judge to set aside and annul the order of another judge, properly sitting in the case, some time after the order has been entered. Gen. Acts 1915, p. 810, § 3. No brief came to the reporter.

' Appeal from Circuit Court, CovingtonCounty; A. B. Foster, Judge. Ejectment by T. J. Spear against J. T.. Jones.. Judgment for plaintiff, and defendant appeals. The counsel discusses assignments of error, but without citation of authority. Any irregularity should have been availed' of by motion to set aside the sale, but cannot be taken advantage of on collateral attack. 81 Ala. 563, 8 South. 215; 68 Ala.. 107; 9 Ala. 726.

Petition by W. W. Shuptrine for mandamus to the Honorable Horace O. Wilkinson, as Judge of the Tenth Judicial Circuit, to require him to dismiss a pending cause concerning the custody of a minor child. For the definition of what constitutes proper jurisdiction, in a case like this, see 5 Broom, 418; 140 U. S. 268, 11 Sup. Ct. 773, 35 L. Ed. 464; 51 W. Va. 352, 41, S.- E. 351; 58 if an. 118, 48 Pac. 569, 62 Am. St. -Rep. 609; 105 Mo. 85, 16 S. W. 595, 24 Am.

M. Miller, Judge. Bill by Fairbanks, Morse & Co. against the Town of Camden for the sale of certain property, or for its restoration, and for general relief. From the decree rendered, the respondent appeals. The demurrers to the bill should hav¿ been sustained, because of an adequate remedy at law. 114 r. S. 190, 5 Sup. Ct: 820, 29 L. Ed. 132. The contract was not properly executed.

<p>1. Homicide <@=>2 — Defendant, who shot son-in-law without provocation, guilty of offense.</p> <p>If defendant shot his son-in-law merely because he had stopped to speak to and caress his child, his wife having separated from him 'and taken the child to her father’s house, defendant was guilty of some offense.</p> <p>2. Homicide <@=>116(4), 122 — Defendant had right to protect daughter from son-in-law, and to repel assault, if lie had reasonable appre- , hension of danger.</p> <p>If defendant’s son-in-law attempted forcibly to take his child from its mother, who had left her husband and was living with her father while suing for divorce, and in doing so violently assaulted his wife, defendant’s daughter, defendant was justified in interfering to protect his daughter, and if deceased, to murderously assault defendant, attempted to draw a pistol, or defendant reasonably and honestly thought so, he had a right to act in defense of himself, if free from fault in provoking the difficulty.</p> <p>3. Criminal law <&wkey;429(2) — Pleadings always admissible to show their existence, fact of suit, and issues.</p> <p>The pleadings in an action at law or suit in equity are always admissible to show their existence, the fact that the suit has been filed, and the issues involved.</p> <p>4. Homicide <@=>195 — Pleadings filed by decedent, defendant’s son-in-law, against-wife in her divorce suit, admissible to show decedent was forcibly contending for possession of . child.</p> <p>In prosecution of defendant for killing his son-in-law, who had come up to defendant and his family on the street while viewing a celebration. and approached his (the son-in-law’s) child, whose mother had gone to live with defendant, her father, while 'suing for divorce, answer and cross-bill filed by deceased son-in-law in the wife’s divorce action, in which he charged her with adultery and averred she was unsuitable to have the custody of the child, held admissible to show that deceased was contending for the custody of the child for reasons which might lead him to take it by force, though the original bill, having no such tendency, was inadmissible.</p> <p>5. Criminal law <§=>459 — Testimony as to relative position of parties deduced from wounds inadmissible. '</p> <p>In a prosecution for homicide, it was not permissible for a witness, from his mere examination of wounds on decedent’s body, to tes> tify as to the relative position of the parties at the time of the shooting.</p> <p>6. Homicide <@=>196 — Testimony as to whether physician called to attend defendant’s daughter was called, because of injuries inflicted by deceased was competent.</p> <p>In prosecution for killing defendant’s son-in-law as defendant claimed in defense of his daughter, who had separated from her husband and was suing for divorce, testimony as to wh'ether or not a physician was called to attend the daughter, decedent’s wife, on account of the 'injuries alleged to have been inflicted on her by her husband at the time he was killed, held admissible on the issue of whether defendant killed in defense of his daughter.</p> <p>7. Criminal law <&wkey;7l9(3) — Statement of so-4icitor in prosecution for homicide improper, as not based on evidence.</p> <p>In a prosecution for killing defendant’s-son-in-law, as defendant claimed, in defense of his daughter, living apart from her husband and suing for divorce, statement of solicitor in argument that in many murder cases he had tried he had heard “this hip pocket defense-come up” held improper, as not based on evidence.</p> <p>8. Criminal law <&wkey;789(l8) — Charges on acquittal for reasonable doubt as to a single-fact properly refused.</p> <p>In a prosecution for killing defendant’s son-in-law, as defendant claimed; in defense of his daughter, living apart from her husband and suing for divorce, charges that, if there was a single fact proved, inconsistent with defendant’s guilt, sufficient to create a reasonable doubt in the jury’s minds, they should acquit, were properly refused.</p> <p>9. Homicide <&wkey;l 16(4)— One relying on self-defense must show circumstances reasonably producing belief of imminent peril.</p> <p>One charged with homicide and relying on the doctrine of apparent imminent peril must show that the circumstances by which he is surrounded were sufficient to impress the mind of a reasonable man that he was in imminent pcjril.</p> <p>10. Homicide <&wkey;300(2) — Use of “actionable" for “actual,” in requested charge on self-defense, justified refusal.</p> <p>In a prosecution for killing defendant’s son-in-law, as defendant claimed, in defense of his daughter, living apart from her husband and suing for divorce, use of the word “actionable” for “actual,” in charge on self-defense requested by defendant, justified its refusal.</p> <p>11. Homicide <@=>300(7), 301 — Charges on justification of defendant in carrying concealed pistol abstract.</p> <p>In a. prosecution for killing defendant’s son-in-la .v, defendant relying on self-defense or defense of his daughter, separated from her husband and suing for divorce, question of defendant’s justification in carrying a concealed pistol was not a pertinent issue, and charges thereon were abstract.</p> <p>12.' Homicide <@=>300(13), 301 — Instructions on 11 self-defense and defense of daughter failing to stipulate for defendant’s freedom from fault properly refused.</p> <p>In a prosecution for killing defendant’s son-in-law, as defendant claimed, in defense of his daughter, living apart from her husband and suing for divorce, charges requested by defendant that he was entitled to kill in self-defense, or defense of his daughter, but failing to stipulate for defendant's freedom from fault, were properly refused.</p> <p>13. Homicide <&wkey;300(2)— Charges on self-defense using “attached” for “attacked” properly refused.</p> <p>In a prosecution for killing defendant’s son-in-law, as defendant claimed, in defense of his daughter, living apart from her husband and suing for divorce, charges requested by defendant on the issue of defense of himself or daughter, using the word “attached” for “attacked,” were properly refused as faulty.</p> <p>14. Criminal law <&wkey;76l (6) — -Charges assuming matter in dispute properly refused.</p> <p>In a prosecution for killing defendant’s son-in-law, as defendant claimed, in defense of his daughter, living apart from her husband and suing for divorce, charges requested by defendant, assuming there was a difficulty between deceased and his wife, as to which the evidence was in dispute, were properly refused as invasive of the jury’s province.</p> <p>.15. Homicide &wkey;300(4) — Requested charge on self-defense argumentative.</p> <p>In a prosecution for killing defendant’s son-in-law, as defendant claimed, in defense of his daughter, living apart from her husband and suing for divorce, requested charge on self-defense held properly refused as argumentative.</p> <p>16. Homicide <&wkey;300( 14) — Requested chai-ge on self-defense, failing to stipulate as to honest belief of peril, properly refused.</p> <p>In a prosecution for killing defendant’s son-in-law, as defendant claimed, in defense of his daughter, living apart from her husband and suing for divorce, requested charge on self-defense, failing to stipulate for defendant’s honest belief that he was in imminent peril, was properly refused.</p> <p>17. Homicide <&wkey;300 (2) — Requested charge on self-defense erroneous for misuse of words.</p> <p>In a prosecution for killing defendant’s son-in-law, as defendant claimed, in defense of his daughter, living apart from her husband and suing for divorce, requested charge that a person has the right to use such force as may be reasonably necessary to defend himself held properly refused, on account of its use of the words “as is due,” in lieu of “as it does.”</p> <p>McClellan, J., and Anderson, C. J., and Thomas, J., dissenting.</p>

Petition by John W. Blackburn and others for mandamus to the Honorable Horace Wilkinson, as Judge of the Tenth Judicial Circuit, to require him to compel Mrs. Moore, a nonresident, to give security for cost before proceeding with habeas corpus to obtain custody of a minor child.

Merrill, Judge. Bill by Jack Jones against W- J. Edmond-son and Mrs. Lena Page, as administratrix of the estate of J. R. Castleberry. From a decree overruling demurrers to ' the bill, respondents appeal. As to the necessary proceedings in an inquisition of insanity, see sections 4345, 4350, 4351, 4447, 4408, Code 1907. The judgment was not subject to impeachment on collateral attack. 73 Ala. 173; 78 Ala. 206; 117 Ala. 533, 23 South. 783; 124 Ala. 238, 27 South. 297.

Bill by E. E. Deramus and another against W. M. Deramus and others for the sale of lands and personal property for division. From decree granting relief, respondents appeal. The deed to appellant vested all the title, unless the deed given by the father to his wife vested the remainder in their children after the death of the mother.

A. Pearce, Judge. Action by Ocie L. Pickett Jones against the Central of Georgia Railway Company for damages for personal injuries. Judgment for plaintiff was set aside on defendant’s motion for new trial, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

A. Pearce, Judge. Bill by J. R. Haircloth against the Farmers’ Guano Company to dissolve the corporation and marshal its assets; also to enjoin the prosecution of garnishment writs issued by the Standard Chemical & Oil Company on judgments obtained against the Farmers’ Guano Company. From a decree sustaining .demurrers to the bill, complainant appeals. A stockholder may maintain a.bill like the present one. 187 Ala. 325, 65 South. 820.

<p>Appeal from Circuit Court, Cullman County ; O. Kyle, Judge.</p> <p>Action by Lannie Johnson, by next friend, against the Louisville •& Nashville Railroad Company, for damages for personal injuries. From judgment for plaintiff, defendant appeals.</p> <p>The following is the complaint:</p> <p>Count 1: “Plaintiff claims of the defendant the sum of three thousand dollars damages, for that on, to wit, the 17th day of February, 1918, the defendant v?as engaged in operating a railroad in Cullman county, Alabama, and running the trains thereon for the transportation of passengers and freight; that on said day and date one of defendant’s trains, consisting of an engine and cars thereto attached, was being run and operated on said railroad in this county by its servants and agents, and plaintiff avers that on said day and date he was walking along or was on the defendant’s railroad track in said county, going in a northerly direction, and that said train was also being run in a northerly direction by the agents and servants of the defendant, approaching the'plaintiff from behind; that plaintiff at said time and place was put in peril of his life or of great bodily harm by said approaching train; that the agents or servants in charge of said train, or some of them, saw plaintiff’s said peril; that after discovery of plaintiff’s said peril the agents or servants in charge of said train so negligently and carelessly conducted themselves in and about the management of said engine and train that said engine was caused, by reason of such negligence, to run upon plaintiff and injure him, and as a proximate consequence of same plaintiff was badly bruised. [Here follows catalogue of injuries.]”</p> <p>Count 4 is the same as 1-, except it alleges the negligence to have been that of John Cobb, in charge of the engine pulling said train, and after the discovery of plaintiff’s said peril by said engineer the said engineer in charge of said train negligently failed to blow the whistle or sound the alarm on said engine, and as a proximate consequence of said negligence the said engine -was caused to run against or upon plaintiff, thereby causing him to suffer the injuries complained of.</p> <p>Charge 24, refused to the defendant, is as follows:</p> <p>“I charge you, gentlemen of the jury, if your minds from the evidence are left in a state of uncertainty and doubt as to whether the whistle was blown by the engineer, then, under the law, the plaintiff has failed to discharge the burden cast upon him under count 4 of the complaint, and your verdict must be for defendant as to count 4. * * * ”</p> <p>Counsel discuss the pleadings, but they cite no authorities. They insist the defendant was entitled to the affirmative charge as to each count of the complaint, first, because the train which caused the injury was being operated by the Director General of Railroads; second, plaintiff failed to establish the negligence of the engineer or any other employs of the defendant and, third, plaintiff was guilty of negligence concurrent with the negligence of the employs. To the first proposition they cite (D. C.) 254 Fed. 880; to the second proposition they cite 164 Ala. 110, 51 South. 147; 153 Ala. 235, 45 South. 238, 16 L. R. A. (N. S.) 301; 169 Ala. 308, 53 South. 805; to the third proposition they cite 195 Ala. 422, 70 South. 753; 178'Ala. 619. 59 South. 464; 169 Ala. 311, 53 South. 805; 156 Ala. 277, 47 South. 84.</p> <p>Count 1 was sufficient. 153 Ala. 133, 45 South. 51; 177 Ala. 349, 58 South. 392. The act of Congress permits suits against the railroad, although being operated by the federal government. The other questions are ruled by the case of L. & N. R. R. Co. v. Phillips, 202 Ala. 502, 80 South. 790.</p>

<p>Divorce <@=537(3) — Facts held not to constitute abandonment by wife.</p> <p>There was no voluntary abandonment by the wife, which being continued for two years authorizes divorce, and for which there must have been final departure, without consent of the other spouse, without sufficient reason therefor, and without intention to return; she having been taken by her parents to their home because of her poor health and her husband’s failure to make provision for her and their sick child, and she having during the two years made repeated, overtures for returning, ■which were rejected.</p>

Brickell, Judge. Action of trover and assumpsit by H. M. Evans, as trustee in bankruptcy of the Hitt Box & Lumber Company, against James B. Bronaugh. Prom judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 45.0, § 6. The verified account was improperly admitted in evidence. Section 3965, Code 1907; 4 Words, and Phrases 3797, 3798; 89 Mo. 408, 14 S. W. 557.

A. Sharpe, Judge. Two actions by the John W. O’Neill Company against the Louisville & Nashville Railroad Company, consolidated. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Appellee'failed to make out a case for recovery against appellant. 153 Ala. 274, 45 South. 229. The motion to strike the bill should not prevail. Section 5359, Code 1907, as amended by Acts 1915, p^ 824.

C. B. Gwin, Judge. Action by J. A. Sadler, as guardian of Milton Frank Bell, against the Alabama Great Southern Railway Company, for damages for trespass to land. From a judgment for defendant, plaintiff appeals. The court erred in striking the third count of the complaint. 9 Ala. 26; section 5513, Code 1907. A corporation or individual cannot procure an easement by prescriptive right. 79 Ala. 569, 58 Am.

L. Herzberg, Judge. Petition of Cordelia Brown for tlae removal of D. B. Brown' as administrator of her husband’s estate and for her own appointment as administratrix. Prom a decree granting the relief prayed, D. B. Brown appeals. A careful reading of sections 2559 to 2565, inclusive, Code 1907, is strongly persuasive that the Legislature never intended the appointment of nonresident administrators. 172 Ala. 287, 55 South. 248, Ann.

<p>Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.</p> <p>Action by Ab. H. McKinney against James H. Hilburn for damages for loss of property while being ferried across a river. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under. Acts 1911, p. 450, § 6.</p> <p>A ferryman is not liable as a common carrier. Moore on Carriers, 51, 52. A county is not liable for mishaps or accidents in the operation of free ferries. 19 Cyc. 513; 45 Ala. 176; 48 Ala. 566; 48 Ala. 649; 49 Ala. 110;' 54 Ala. 639, 25 Am. Rep. 730; 195 Ala. 364, 70 South. 634; 196 Ala. 483, 71 South. 704; 80 Ala. 204 ; 80 Ala. 287. Only gross negligence can be recovered for. 142 Ala. 232, 37 South. 825; 42 Ga. 528, 5 Am. Rep. 544.</p> <p>All the grounds of demurrer are treated together, and, unless all are good, no reversal should follow. 165 Ala. 650, 51 South. 517; 195 Ala. 335, 70 South. 271; 143 La. 229, 78 South. 478 ; 203 Ala. 28, 81 South. 818. Count 1 was in Code form, and not subject to demurrer. Count 3 is also good. Section 3026, Code 1907; 19 Cyc. 50S, 509; 187 Mass. 245, 72 N. E. 992, 68 L. R. A. 157, and note; 143 Pa. 122, 22 Atl. 708. 13 L. R. A. 366; 142 Ala. 232, 37 South. 825; 9 Cyc. 378,-and notes. The burden of proving contributory negligence rested upon the defendant. 97 Ala. 165, 11 South. 886.</p>

J. Martin, Judge. Statutory ejectment by W. C. Bellenger against Thomas Gidley. Judgment for plaintiff, and defendant appeals. Both parties claim from a common source of title, Mrs. Elizabeth Gidley. Mrs. Gidley and her son, P. F. Gidley, mortgaged their separate property, including the 40 acres in this suit, in 1913, to one A. Bloch, who foreclosed same by bill in chancery October 8 1914; the decree of sale having been rendered in February, 1915.

W. Haralson, Judge. Bill by E. H. Caldwell and another against D. K. Caldwell, and others, to require the executor to file his accounts and vouchers and for a reference to state an account upon a partial settlement of the estate of Almena Caldwell. From the order, granting the relief prayed, the respondents appeal.

W. Haralson, Judge. Action by Ada Leonard against Ludie Cochran and others for use and occupation of land. Judgment for the plaintiff, and the defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

L. Savage, Judge. Petition by Mary J. Chandler for the probate of a will of John A. Chandler. From a decree denying the probate of the will prbponent appeals, making the heirs party thereto by virtue of their contest. The litigation referred to and its irrelevance is apparent. 97 Ala. 639, 11 South. 838; 135 Ala. 227, 33 South. 42; 16 Cyc. 1198.

<p>Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.</p> <p>Lester Staggs was convicted of crime, and he appeals:</p>

<p>Appeal from Circuit Court, Lawrence County; Robert C. Brickell, Judge.</p> <p>Bill by Annie Swope Patten and others against E. C. Swope for discovery and an accounting and for money decree. From a decree sustaining demurrers to the bill in certain aspects complainants appeal, and respondent E. C. Swope seeks a cross-appeal.</p> <p>The fourth paragraph of the bill is as follows:</p> <p>The decree of sale of said property made no reference to the rents or income from the land for the current year 1918. At the time of the sale under the decree of this court in said cause there were present two of the joint owners of the said real estate, namely, E. C. Swope and J. IC Swope. At the instance of J. K. Swope and the attorney representing the complainants in said cause it was announced publicly at the sale by the auctioneer and attorneys for the complainants in said cause that the rent for the curr'ent year 1918 was reserved from the sale; and would not pass to the purchaser of the land. ' Said announcement was acquiesced in by the respondent, E. C. Swope. The land was then offered for sale, with the distinct understanding among the parties present and bidding at the sale that the rent for 1918 was reserved, and would not pass to the purchaser of the land.</p> <p>The other facts sufficiently appear from the opinion of the court.</p> <p>Personal property is subject to compulsory partition in chancery. Section 5231, Code 1907; 146 Ala. 634, 41 South. 962; 30 Cyc. 175; 107 Ala. 168, 18 South. 247; 138 Ala. 549, 36 South. 459. This disposes of demurrers Nos. 1, 2, and 20. The contention that the facts do not show that compjainants have a joint interest in rents arising from the land is not sound. 4 Pom. Eq. § 1837; 1 Cyc. 404 ; 30 Cyc. 232; 128 Ala. 175, 30 South. 792. Demurrers 6, 8, 10, and 23 assert that the purchaser of the land is entitled to the whole rent, because the register made the sale prior to its maturity; this is not sound. 139 Ala. 505, 35 South. 1014; 165 Ala. 347, 51 South. 728; 149 Ala. 196, 42 South. 807; 78 Ala. 158. The bill was sufficient as one for discovery. 165 Ala. 194, 51 South. 750. While the rents might be discovered, and recovered at law, this does not divest chancery of its jurisdiction. 150 Ala. 605, 43 South. 805, 9 L. R. A. (N. S.) 1255; 190 Ala. 494, 67 South. 384; 93 Ala. 542, 9 South. 256; 1 Cyc. 421.</p> <p>The court erred in retaining the bill after sustaining the demurrer and requiring the respondent to answer. 130 Ala. 268, 30 South. 364; 111 Ala. 209, 20 South. 341; 121 Ala. 579, 25 South. 720; 123 Ala. 479, 26 South. 514. Money is a commodity that can be divided without resort to court. 84 Ala. 352, 4 South. 182. The purchaser was entitled to the rents falling due after the sale. 85 Ala. 137, 4 South. 752; 58 Ala. 277; 75 Ala. 238; 90 Ala. 449, 7 South. 913; 137 Ala. 18, 34 South. 846.</p>

Locke, Judge. Bill by Frank Nelson, Jr., against the F. W. Woolworth Company and the Parisian Company, to enjoin alteration of a leased building. From decree granting injunction, respondents appeal.

P. Almon, Judge. Bill' by the City of Florence against the Florence Land & Lumber Company and another to enjoin the destruction of Monumental Park, alleged to have been dedicated to a public use. From a decree for respondents, complainant appeals. • See former reports of this case in' 199 Ala. 580, 75 South. 20, and 193 Ala. 179, 69 South. 109. There was a common-law dedication under the evidence and allegations of the ’ bill; ¡ 4 McQuillin, Mun.

P. Almon, Judge. Assumpsit by C. A. Watson & Sons against Philip dim & Co. for breach of contract in the sale of apples. Judgment for plaintiff, and defendant appeals. The action is stated on the common counts, including a count for merchandise, goods, and chattels sold by plaintiff to defendant on February 11, 1918.

<p>Appeal, from Circuit Court, Lauderdale County; C.- P. Almon, Judge.</p> <p>Howard Kinsey was convicted of murder, and he appeals.' The facts sufficiently appear from the opinion of the court.</p> <p>The court erred in sustaining the state’s ■objection to the question to defendant. 147 Ala. 100, 41 South. 759; 170 Ala. 36, 54 South. 175; 1 Ala. App. 90, 56 South. 30. If the confessions were not admissible, the defendant was entitled to a directed verdict. 89 Ala. 134, 8 South. 104; 67 Ala. 55, 42 Am. Rep. 95; 76 Ala. 279; 68 Ala. 256; 59 Ala. 104; 40 Ala. 648.</p> <p>No brief reached the reporter.</p>

W. Haralson, Judge. Action by Joseph Cooper against J. B. Cooper and others for damage for conspiracy and so forth. Judgment for defendants, and plaintiff appeals. The plaintiff representing himself called in writing npon the trial judge to recuse himself from the trial of this cause, setting down some half dozen grounds therefor.

Brickell, Judge. Action of assumpsit by J. L. Ricketts against E. Douglass Rodgers. From judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. The evidence was conflicting, and the court should have admitted in evidence the circumstances tending to throw light .on the reasonableness or unreasonableness of the respective claims of the parties. 203 Ala-481, 83 South. 475; 16 Oye. 1118. No brief came to the reporter.

<p>Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.</p> <p>Action by Beauregard Vintson against the Pratt Consolidated Coal Company for breach of contract to mine coal. Judgment for plaintiff, and defendant appeals. Transferred from. Court'of Appeals under Acts 1911, p. 450, § 6.</p> <p>Counsel discuss the errors assigned, bui without citation of authority.</p> <p>No brief reached the reporter.</p>

Kyle, Judge. Assumpsit by Hannah Pierce as administratrix against W. W. Garnett. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450, § 6.

Locke, Judge. John Harduval and Peter Goulas offered to purchase certain leasehold and other interests of the defunct Merchants’ & Mechanics’ Trust & Savings Bank, then being administered by receivers, and from an order of the' court overruling tbe report of the register and refusing to confirm their bid, they appeal. The appellants were parties to a judicial sale. Sections 5511 and 5512, Code 1907; 35 Ala. 503, 76 Am.

<p>Appeal from Circuit Court, Clay County; E. J. Garrison, Judge.</p> <p>Mandamus by Samuel J. Pruet against O. B; Cornelius, as Judge of Probate, to require said Judge of Probate to enter petitioner’s name upon the list of qualified voters of Clay county. Prom a decree granting the mandamus, the Judge of Probate appeals.</p> <p>The facts made by the petitioner and admitted to be true are that petitioner is over 21 years old, was a qualified voter in 1915, but has not paid poll tax for the years 1916 to 1919, inclusive; that he enlisted'in the United States Navy on the 20th day of April, 1917, and served continuously in the Navy until the 5th day of July, 1919, when he received an honorable discharge from said service; and that such discharge shows an honorable service in said United States Navy for more than four months prior to November 11, 1918, and an honorable discharge therefrom.</p> <p>The clear intent of the constitutional amendment was to exempt soldiers and sailors, and no others; but this did not apply to persons prior to their entry into the service.</p> <p>No brief reached the reporter.</p>

A. Sharpe, Judge. Action by Matthew Nunn, pro ami, against the Woodward Iron Company, for damages for personal injuries sustained in its employ-' ment. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

Brickell, Judge. Assumpsit by A. J. Murdock against W. H. Bickley to recover commissions on the sale of real property. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts. 1911, p. 450, § 6. The facts sufficiently appear from the opinion of the court. Counsel discuss the evidence, with the insistence that the court rendered an improper judgment; but they cite no authorities in support of same.

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Action by F. H. Ferguson against the W. F. Covington Manufacturing Company, for breach of contract to sell corn. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.</p> <p>Count 2 is upon an account. Count 1 is as follows:</p> <p>“Court. Plaintiff claims of defendant the sum of $750 damages for the breach of a contract entered into by and between the plaintiff and defendant on, to wit, the 9th day of November, 1917, in substance as follows: Plaintiff agreed to buy.and defendant agreed to sell 11 cars of corn in the ear at $1.50 per bushel of 80 pounds, and defendant agreed to deliver said corn in Birmingham, Ala.; and plaintiff says that, although he has complied with all the provisions thereof, on his part, the defendant has failed to comply with the following provisions, viz.: The defendant delivered only 8 cars of corn, and, although required to do so, wholly failed and refused to deliver the remaining 3 cars contracted for. Plaintiff avers that by reason of and as a proximate consequence of the breach of said' contract as alleged, plaintiff was forced to, or did, go into the market and buy 3 cars of corn at a greatly increased price. Plaintiff further avers that he bought said 3 cars of corn in open market for the account of the defendant, and drew a draft upon the defendant, which said draft was dishonored and protested. Plaintiff avers that he was put to considerable trouble and expense in and about buying said corn, all to the damage of plaintiff as aforesaid. Hence this suit.”</p> <p>Charge 2 given for plaintiff is as follows:</p> <p>“I charge you that if you believe the evidence in this case plaintiff is entitled to recover, and you must fix his damages at the difference between the contract price and the price at which the plaintiff bought the corn in Birmingham.” ’</p> <p>The complaint was demurrable. 170 Ala. 499, 54 South. 203; • 186 Ala. 341, 64 South. 617; 192 Ala. 69, 68 South. 359. Where no time is fixed for the delivery off goods, the law fixes a reasonable time, and the measure of damages is the difference between the agreed price and the market value at the time and the place of delivery. 193 Ala. 101, 69 South. 514; 192 Ala. 69, 68 South. 359; 199 Ala. 23, 74 South. 34; 7 Ind. App. 462, 34 N. E. 579.</p> <p>The court did not err in overruling demurrers to the complaint. 199 Ala. 23, 74 South. 34; 193 Ala. 101, 69 South. 514; 186 Ala. 493, 65 South. 321; 35 Cyc. 210, 639; 73 South. 149; 201 Ala. 176, 77 South. 702 ; 202 Ala. 263, 80 South. 103; 182 Ala. 665, 62 South. 70. The market price must be' determined as of the time to which the contract was postponed. 35 Cyc. 637; 179 Ala. 535, 60 South. 838; 196 Ala. 337, 71 South. 439. On these authorities, charge 2 was properly given.</p> <p>This .appeal was submitted under rule 46 (178 Ala. xix, 65 South, vii), Supreme Court Practice, and the opinion of the court delivered by</p>

W. Haralson, Judge. Action by J. W. Brooks against the Butler Cotton. Oil Company for penalty for a failure to satisfy the record upon payment of a mortgage. Judgment for plaintiff, and the defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449.

<p>Appeal from Circuit Court, Dale County; J. S. Williams., Judge.</p> <p>Bill by the Modern Order of Prsetorians against E. W. Merriman'and others, as executors, for an intervention. Prom a decree sustaining demurrers to the bill and administering the funds, complainant appeals.</p> <p>The bill alleges that the Modern Order of Praetorians is a fraternal benefit society; that Oliver O. Skipper held a benefit certificate in the order for $1;000 with Callie V. Skipper, his mother, as the beneficiary. It alleges on information and belief that said Oliver O. Skipper was killed in action in Prance on November 7, 1918, and that Callie V. Skipper, the beneficiary, died on November 8, 1918, leaving a will, naming Martin Luther Skipper and Hiram P. Edwards, as her executors, and Anna Dean, Laura Pain, and Sallie Hayes, her daughters, all her personal property; that she also left surviving her two sons, Martin Luther Skipper and John Skipper, half-brothers of Oliver Skipper. The constitution of the order is set out," and it is alleged that under the constitution Oliver Skipper being unmarried and having no children, and his mother being dead, the brothers and sister are entitled to share in the beneficiary certificate. It further alleges that T. W. Merriman is the father of Oliver Skipper and is' now living' and has made demand on orator for the amount due. The bill also alleges that the three sisters named above have also made demand. It alleges that the executors of Callie V. Skipper and the two half-brothers mentioned above have made no demands, but have executed their voluntary release and discharge to orator. All the parties above named in their individual and representative capacity were made parties respondent. The court sustained demurrers and dismissed the bill, but directed that the fund be retained and administered by the court.</p> <p>The bill contained equity, and the court erred in its decree. 7 Ala. 281, 42 Am. Dec. 592; 76 Ala. 472 ; 86 N. J. Eq. 443, 97 Atl. 276; 99 Atl. 1071; 186 Mich. 284, 152 N. W. 1085; 69 N. J. Eq. 706, 60 Atl. 1122; 65 Pae. 1105; 118 N. X. 648, 23 N. E. 991; 100 Mo. App. 655, 75 S. W. 377; 112 N. X. 157, 19 N. E. 649; 80 S. W. 699; 3 Pom. § 1319 ; 5 Pom. 60; 23 Oyc. 29. . Complainant was entitled to attorney’s fee. 29 Cent. Dig. 76; Adams, Eq. 206; 11 Ene. P. & P. 475.</p> <p>The chancellor properly dismissed the bill. Acts 1915, p. 136; 201 Ala. 28, 75 South. 150; 177 Ala. 371, 58 South. 986. The complainant cannot complain that the court or■dered a distribution of the fund. 168 Ala. 278, 53 South. 182; 201 Ala. 337, 78 South. 299, L. R. A. 1918D, 860. Under the facts, the bill should have been supported by an affidavit of noncollusion. 112 Ala. 606, 20 South. 851; 96 Ala. 447, 11 South. 480. The agreement with the executors rendered the bill demurrable. 67 Ala. 472 ; 23 R. I. 1, 49 Atl. 26, 91 Am. St. Rep. 605. There was a misjoinder of parties respondent. 143 Ala. 24, 39 South. 406; 145 Ala. 397, 40 South. 398, 4 L. R. A. (N. S.) 103, 8 Ann. Cas. 218; 139 Ala. 548, 36 South. 729 ; 23 Ala. 548, 58 Am. Dec. 305; 67 Ala. 472. Counsel was not entitled to attorney’s fee. 82 Ala. 213, 2 South. 760; 100 U. S. 483, 25 L. Ed. 628; 195 Ala. 560, 70 South. 733.</p>

<p>Appeal from Circuit Court, Madison County; Robert C. Brickell, Judge.</p> <p>Action by Lucy Stewart against the First National Bank of Huntsville for damages for failing or refusing to pay a check when she had funds on deposit. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.</p> <p>■ Charge 1, given at plaintiff’s request, is as follows:</p> <p>(1) If you are reasonably satisfied from the evidence in this case that the conduct of the teller of the defendant bank was characterized by a reckless indifference as to the probable consequence of his act in telling the payee of plaintiff’s check that she had no funds with the defendant bank, then he would be guilty of wantonness, and plaintiff would be entitled to recover punitive damages of the defendant bank, if you are reasonably satisfied from the evidence that she was damaged as the result of such wanton conduct on the part of the teller.</p> <p>Plaintiff was not entitled to punitive damage, but only such damage as, in its discretion, the jury might award. 131 Ála. 429, 30 South. 777; 159 Ala. 310, 49 South. 310; 163 Ala. 170, 50 South. 975. Plaintiff was trader, or in business, and was really entitled to only nominal damages. 7 Corpus Juris, 697, and notes.</p> <p>Plaintiff recovered only temperate damages, and hence no error intervened as to the giving of charges. 74 S. C. 185, 54 S. E. 206, 7 Ann. Cas. 818; 29 App. Cas. 580 ; 96 Ga. 334, 23 S. E. 190, 51 Am. St. Rep. 139; 130 Pa. 419, 18 Atl. 632, 17 Am. St. Rep. 779.</p>

B. Foster, Judge. Action by Ada Blackerby, formerly Ada Rambo, upon a certificate of insurance on the life of her former husband, Rambo. Judgment for plaintiff, and the defendant appeals. For the pleadings and other matters, see former report of this case in 201 Ala. 443, 78 South. 821.

B. Foster, Judge. Suit by N. A. Thompson against the Miller-Brent Lumber Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Suit by appellee against appellant to recover damages for the death of certain cows alleged to have been negligently killed by the appellant’s train. From the judgment in favor of the plaintiff (appellee), this appeal is prosecuted.

B. Foster, Judge. Action by Holmes & Dawson against J. E. Henderson and J. L. Warren for breach of contract to sell peanuts. . Judgment for plaintiffs, and defendants appeal.

<p>Appeal from Circuit Court, Winston Coum ty; T. L. Sowell, Judge.</p> <p>Assumpsit by J. A. Kelly against John Lynn, Jr., and L. M. Norris. .Judgment for plaintiff, .and defendants appeal. Transferred from Court of Appeals under Agís 1911, p. 450, § 6.</p> <p>The court erred in admitting the contents of the note. 86 Ala. 94, 5 South. 780. There was no evidence to sustain the charge of the court that plaintiff would be entitled to sue on the note,' if its transfer was obtained from him by misrepresentation or fraud. 11 Ala. App. 670; 66 Ala. 954; 192 Ala. 396, 68 South. 298.</p> <p>No brief reached the reporter.</p>

<p>1. Boundaries <&wkey;>43 — Fixing line between sections beyond the boundary in litigation held not error.</p> <p>In suit to establish a disputed boundary line between two sections, under Code 1907, § 3052, subsec. 5, error could not be predicated on the report of the commissioner and the decree of the court, in so far as they defined the line between the two sections beyond the boundary line in litigation; the line projected beyond plaintiff’s and defendant’s land being surplusage.</p> <p>2. Boundaries <&wkey;52(l) — Objection to commissioner’s authority must be made before report.</p> <p>In suit to establish disputed boundary line under Code 1907, § 3052, subsee. 5, objection to authority of the register to act as commissioner cannot be made the first time after his report has been filed.</p>

<p>Appeal from Prohate Court, Barbour County; Bob T. Roberts, Judge.</p> <p>Olin Whittington propounded for probate the alleged will of T. N. Whittington, and Savannah Miller, and other I^eirs filed a contest. From a decree admitting the will to probate, the contestants appeal.</p> <p>The judgment or decree was rendered on March 18, 1919, and the record shows that the hill of exceptions was not presented to the tridl judge until June 19, 1919.</p> <p>The judge makes this certificate:</p> <p>I certify that the above bill of exceptions was tendered and presented and filed with me and accepted by me this June 19, 1919. B. T. Roberts, Judge of Probate, etc.</p> <p>Counsel discuss the various assignments of error-, with citation of authority; but, in view of the opinion, it is not deemed necessary to here set it out.</p> <p>The bill must be stricken, becau'se'not filed in time nor ' signed. Sections 3019, 3020, Code Í907; 184 Ala. 598, 64 South. 69; 195 Ala. 272, 71 South. 106; 15 Ala. App. 434, 73 South. 756.</p>

<p>Appeal from Circuit Court, Walker County; J. J. Curtiss, Judge.</p> <p>Action by Luigi Cassiatore, as administrator, against the De Bardeleben Coal Company for the death of his intestate. Judgment for the defendant, and the plaintiff appeals.</p> <p>Suit by appellant against appellee to recover damages for the death of one Frank Lamoto, who was killed by the falling of a draw rock in the roof of an air course in defendant’s mine. The first count of the complaint relies on a defect in the condition of the ways, works, machinery, etc. The second and third counts charge negligence on the part of the superintendent, in that he ¡negligently caused or allowed a part of the roof of the mine to fall upon the plaintiff.</p> <p>There were numerous special pleas, setting up contributory negligence in various forms. Plea 14 was to the effect that intestate was an experienced miner, and that the draw rock, which .was several inches thick, rested on the coal, and was likely to fall at any time, if the coal was removed from under it, all of which facts were known to intestate, as well as the danger of injury from the falling of the draw rock, and, further, that intestate was instructed* by the foreman not to work under the draw rock after the coal was removed, but to take it down, and that intestate disregarded said instructions and negligently worked under said draw rock after the coal had been mined from under it until said rock fell, and as a proximate result plaintiff’s intestate met his death.</p> <p>The proof tended to show that plaintiff was killed while at work in the air course of the mine, and that in working the roof of the air course a 7%-foot under-cut machine was used. It was plaintiff’s insistence that this machine cut too wide and deep a space in the roof, thereby leaving insufficient room to prop the roof with timbers; that a smaller machine should have been used on that particular roof, because the draw rock was of soft material; and that the foreman or assistant superintendent was notified that a smaller machine should have been used, but did not change the same. There was also evidence tending to show that the mine foreman, fopr or five days before the death of plaintiff’s intestate, examined the roof where intestate and his companion were working, which, at that time, he considered safe; but there was evidence tending to show they had worked regularly each day since that time, and had worked some distance from this place, though it is not shown that the foreman so examined or stated as to the condition of the roof at the point plaintiff’s intestate was working at the time he was killed.</p> <p>There was evidence tending to show the relation of employer and employe, and that deceased received compensation — being paid a certain tonnage price for coal worked, and certain additional price per yard for making the entry and the air course, and making safe the roof in the entry and passage way. Plaintiff’s intestate was working this entry with one Tony Sciari. The draw rock on top of the coal at this particular place was about 7 inches thick, and was of soft material which usually fell with the coal, lying right on top of the coal — being between the coal and the main rock. The evidence is without dispute that plaintiff’s intestate had been given particular instructions by the mine foreman to take down the draw rock, and that this had previously been done, except for the last .one or two times, and that he had been warned only the day before he met his death of the danger of not taking down the d,raw rock after each cutting. There was also evidence tending to show that the machine used was the kind in use in the best-regulated mines, and was proper for this purpose.</p> <p>At the conclusion of the evidence the court gave the affirmative charge in favor of the defendant, and from the judgment following plaintiff prosecutes this appeal.</p> <p>Where the evidence shows that the defendant requires its employees to use a mining’ appliance, which resulted in leaving a dangerously large section of-roof unsupported, this was sufficient evidence of a defect to carry the case to the jury. 92 Ala. 300, 9 South. 252, 25 Am. St. Rep. 47; 100 Ala. 187, 14 South. 175; 178 Ala. 515, 59 South. 445. The furnishing of such machinery constitutes a defect under the Employers’ Liability Acts. 141 Ala. 479, 37 South. 789; 178 Ala. 554, 59 South. 498. Defendant superintendent was guilty of negligence in instructing Lamato to work thereunder. Defendant was not entitled to affirmative instruction on the. pleas of contributory negligence and assumption of risk. 150 Ala. 356, 43 South. 501; 174 Ala. 593, 56 South. ’539.</p> <p>Where the employee injured is the one intrusted with the works, ways, etc., and undertakes that duty, he cannot complain. '133 Ala. 279, 32 South. 15. The court properly directed a verdict for defendant. ' 97 Ala. 181, 12 South. 103.</p>

<p>Appeal from Circuit Court, Jefferson County; H. A. Sharpe, Judge.</p> <p>Action by Mrs. Mattie Burrell against the Sovereign Camp, Woodmen of the World, upon a benefit insurance ticket issued to Jesse R. Burrell. Judgment for plaintiff, and de-: fendant appeals.</p> <p>It is fundamental that the certificate did not go into effect until the applicant perfected his membership. 29 Cyc. 28. In order to perfect membership, an applicant must be initiated or obligated as required by the laws of the society. 81 Ark. 512, 99 S.. W. 834; 99 Mo. App. 105, 72 S. W. 463; 76 Neb. 562, 107 N. IV. 795; 82 Tex. 301, 18 S. W. 306, 27 Am. St. Rep. 886; 180 Mo. App. 538, 167 S. W. 578; 142 S. W. 641; 168 Iowa, 579, 150 N. W. 714, Ann. Cas. 1917B, 373; 186 Mo. App. 445, 171 S. IV. 629. Delivery of certificate by an officer of the local lodge does not excuse failure to be initiated. 175 Mich. 684, 141 N. IV. 589.</p> <p>The court carefully prepared a statement of facts, as required by section 5344, Code 1907. Proof of death is some evidence of the facts therein stated. 81 South. 246. By demurrer to the evidence, defendant admits its competency, and refers it to the court to determine its legal sufficiency. 5 Ala. 376; 2 Stew. 175; 19 Ala. 703 ; 2S Ala. 637; 38 Cyc. 1543. There is no proof to show that appellant was not an insurance company. 202 Ala. 520, 81 South. 23; 29 Cyc. 229; 115 Iowa, 450, 88 N. W. 965; 190 Mo; App. 606, 176 S. W. 209 ; 161 N. W. 125; 179 Mo. App. 60S,' 162 S. IV. 682; 87 Mise. Rep. 327; 149 N. Y. Supp. 862. There was a waiver of a provision of its contract and laws, and defendant was estopped. 160 Ala. 334, 49 South. 354 ; 29 Cyc. 187, and note; 198 Ala. 332, 73 South. 519, L. R. A. 1917C, 469; 80 South. 84.</p>

<p>Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.</p> <p>Action by Delia Goodwin against the Grand Lodge of Alabama, A. F. A A. M. (Colored), and others, on an insurance benefit certificate. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.</p> <p>As originally brought, the suit was against the Grand Lodge of Alabama, Ancient Free & Accepted Masons (Colored). By amendment the following were added as parties defendant: H. C. Harris, J. T. Gregory, H. C. Binford, W. T. Woods, C. H. Evans, C. W. McDaniel, and C. W. Allen, with the additional allegation:</p> <p>“Plaintiff avers that the individual defendants hereto, and others whose names are to the plaintiff Unknown, were at the time of the accrual of plaintiff’s cause of action acting as a voluntary association known and called Grand Lodge of Alabama, Ancient Free & Accepted Masons.”</p> <p>The following is plea 8:</p> <p>(8). For further plea and answer ■ to the complaint, and each and every count thereof, separately and severally, defendants say the deceased, James Wright, was a member of Purity Lodge prior to his death, and in accordance with the laws of the endowment defendant executed a certificate, showing what disposition should be made of the endowment to which he was entitled at his death, which certificate is in words' and figures as follows:</p> <p>“ ‘Certificate, Showing to Whom Money of Endowments must be Paid St Death. — To the Worshipful Master, Warden and Brethren of Purity Lodge No. 215 of Free & Accepted Masons, under the Jurisdiction of the Grand Lodge of Alabama, Located in the Town of Trussville, County of Jefferson, and the State of Alabama: I, James Wright, do consider myself to be of sound mind. I am --— years of age, and a member of Lodge No. 215 in good standing, and reside at No. Trussville street in the county of Jefferson of - and state of Alabama. I direct that in ease of my death all benefits to which I may be entitled from the endowment department, all to be paid to my wife, Mrs. Hattie Wright, or so much to my -. This certificate may be changed by signer from time to time. [Sign name in full] James Wright. Witness: J. D. Kent. R. H. Bradshaw.’</p> <p>“And defendants aver that they had no notice of any change of the beneficiary designated by said certificate, and had no notice that Delia Goodwin, the plaintiff, had any interest in the proceeds of said endowment, and that in accordance with said certificate they paid Hattie Wright the amount of the benefits or endowment to which said James Wright was entitled at the time of his death, namely, the sum of $100, which was in full settlement of the endowment due by virtue of the membership of the said James Wright in the defendant association.”</p> <p>The question in the sixteenth assignment of error was a question to A. J. Nelson on the cross-examination:</p> <p>“Q. Did you, or not, or was it, or not, discussed in the lodge, after James Wright died, and before you paid the $100, that this woman claimed $250?”</p> <p>The other facts sufficiently appear from the opinion of the court.</p> <p>An unincorporated association cannot be made a defendant. 165 Ind. 421, 75 N. E. 877, 2 L. R. A. (N. S.) 788, 6 Ann. Cas. 829. Parties to a cause should appear in the body of the complaint. 31 Oyc. 96. Depositions were taken before the amendments, and therefore were not admissible against the parties brought in. Section 5367, Code 1907; 145 Ala. 617, 39 South. 576. If there was no legal entity in the defendant, there is no foundation upon which to base an amendment. 30 Oyc. 27 and 98. A change of beneficiary cannot be had without the consent of the insurer. 4 Cooley’s Briefs, 3671. Delia Goodwin’s evidence violated the provisions of section 4007, Code 1907.</p> <p>No brief came to the reporter.</p>

<p>Appeal from Circuit' Court, Etowah County ; O. A. Steele, Judge.</p> <p>Assumpsit by W. P. Goodwin against S. W. Riddle. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.</p> <p>The court erred in allowing the letter of July 6, 1916, from Riddle to Goodwin to be admitted in evidence. 20 Ala. 358; 115 Ala. 83,-22 South. 565; 116 Ala. 43, 22 South. 461; 201 Ala. 403, 78 South. 401. Jones on Evidence, 869, 870. The court erred in permitting Riddle to testify to the contents of the letter to Hubbard, which letter Hubbard had in his files at Albertville. 160 Ala. 657, 49 South. 426; 113 Ala. 496, 21 South. 348. Counsel discuss other assignments of error, but without further citation of authority.</p> <p>Counsel discusses assignments of error, but without citation of authority.</p>

E. Gamble, Judge. Bill by G. B. Searcy against Mary F. Shows and others to declare a mortgage a valid lien, to foreclose it, and to redeem from former mortgage. From decree sustaining demurrers to the bill, complainant appeals.

J. Curtis, Judge. Action by John E. Hooker against the Corona Coal Company for damages to land by overflow, etc. Erom a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

J. Curtiss, Judge. Action by J. H. King against the Corona Coal Company for damages to land by overflow. From a judgment for plaintiff, defendant appeals. For the pleadings in this case, see the report of the case of Corona Coal Co. v. Hooker, ante, p. 221, 85 South. 477. The demurrer to the complaint should have been sustained. 203 Ala. 78, 82 South. 93; 202 Ala. 381, 80 South. 463; 90 Ala. 534, 8 South. 46.

J. Curtis, Judge. Action by Annis Wright against the Corona Coal Company for damage to land by overflow, etc. Prom judgment for plaintiff, defendant appeals.

A. Pearce, Judge. Bill by the Dothan Grocery Company against H. H. Dowling and others for exoneration and subrogation to a tax lien. Prom a decree sustaining demurrers to the bill complainant appeals.

W. Haralson, Judge. Suit by Gertrude Milner, by next friend against Jo L. Henry, for damages from frightening of a mule by defendant’s automobile. From judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

<p>Appeal from Circuit Court, Covington County; A. B. Foster, Judge.</p> <p>Action by T. D. Champion against Walker D. Hines, as Director General of Railroads (Louisville & Nashville Railroad Company), for damages for injury to automobile. Judgment for defendant, which on the motion of the plaintiff was set aside, and defendant appeals.</p> <p>Suit by appellee to recover damages for injuries to his automobile, sustained at a public crossing in the town of Opp. Counts 1 and 2 were for simple negligence, while the third was a wanton count. The cause was submitted to the jury upon these counts and general issue thereon, and contributory negligence. There was verdict for the defendant. Plaintiff moved for a new trial, which was granted upon the ground that charge five, given in writing at tne request of the defendant, if not positively erroneous, was misleading to such an extent as probably injuriously affected the plaintiff’s cause, all of which appears from the opinion of the court, which was filed in response to the motion and is a part of- the judgment thereon. To this action of the court the defendant reserved an exception, and prosecutes this appeal from the order granting the new trial.</p> <p>The charge referred to is as follows:</p> <p>“(5) If from the evidence you are reasonably satisfied that at.the time of and before attempting to cross defendant’s railroad, the plaintiff did not stop, look, and listen for defendant’s train and that by reason of such failure plaintiff’s car was injured, then plaintiff is not entitled to recover under counts 1 and 2 of the complaint.”</p> <p>Plaintiff’s testimony tended to show that as he reached the crossing he slowed his car down to about 4 miles an hour, and that upon hearing no train he gave the car more speed, but just as it got upon the main track of the Louisville & Nashville Railroad the engine choked down and he was unable to again start. The train, consisting of the engine and three coaches, was then approaching — it having just left the depot, about 300 yards distant; that he jumped from his car and waived his handkerchief, but the approaching train struck the car and praetically demolished it. There was also evidence tending to show that the engineer was looking ahead, and that the track was straight, with nothing to obstruct the view, and that in fact the engineer saw the car upon the track. There was further proof from which the jury could infer that the emergency brakes were not promptly applied, and also testimony from which the jury could infer the accident could have been avoided, if prompt and efficient effort had been made.</p> <p>Tlie evidence for the defendant tended to show that, while the engineer saw the automobile in this perilous condition some 80 feet distant, yet he did all possible to avoid the injury.</p> <p>Charge 5 was properly given. 203 Ala. 3, SI South. 671; 202 Ala. 222, SO South. 44; 201 Ala. 308, 78 South. 84; 196 Ala. 133, 72 South. 67; 192 Ala. 392, 68 South. 277; 179 Ala. 299, 60 South. 922; 172 Ala. 560, 55 South. 218. Under these authorities, defendant was entitled to the general affirmative charge on the simple negligence count. Under the facts, the jury could not have found for subsequent negligence. 135 Ala. 533, 33 South. 332; 152 Ala. 133, 44 South. 602.</p> <p>Recovery for subsequent negligence can be had under counts charging simple negligence. 17¿ Ala. 600, 55 South. 812; 158 Ala. 391, 48 South. 99; 125 Ala. 199, 27 South. 1006. The court properly granted a new trial. Authorities supra. Its finding will not be disturbed. 141 Ala. 342, 37 South. 490.</p>

<p>1. Mandamus i&wkey;109 — Remedy available against county depositary.</p> <p>As the summary remedy given by statute against a county treasurer is not available against a county depositary, mandamus is a proper remedy to compel payment by the depositary of a salary warrant.</p> <p>2. Counties &wkey;>l97 — Claim for salary fixed by statute need not be audited by commissioners.</p> <p>As the salary of the judge of the county court of Marengo county was fixed by Acts 1915, p. 603, at $600 per year, payable monthly out of the county treasury, claims for such salary do not come within the influence of Code 1907, § 211, relative to claims which have been audited and allowed by the court of county commissioners, requiring registration thereof.</p> <p>3. Statutes &wkey;>230 — An original act is not rendered amendatory because of reference in title to laws affected.</p> <p>Acts 1915, p. 603, which by its title required all fees collected by Code 1907, §§ 6655, 6656, in the county court to be paid in the county treasury to provide a fund out of which the salaries of the judges of the county court should be paid, etc., is not rendered an amendatory act by reference to the sections of the Code affected; the reference being merely to make the act more definite.</p> <p>4. Evidence <&wkey;28 — Courts judicially know statute law.</p> <p>Court takes judicial notice of state statutes.</p> <p>5. Statutes &wkey;> 124(1) — Title of act relating to salaries of judges of county court sufficient.</p> <p>Acts 1915, p. 603, entitled an act “to require all the fees collected, by sections 6655 and 6656 of the Code, in the county court to be paid into the county treasury; to provide a fund out of which the salaries of the judges of the county court shall be paid, and to fix the amount of .such salaries,” is sufficient, underConst. 1901, § 45, declaring that an act shall contain but one subject, which shall be expressed in its title, the reference to the sections not making amendatory the act which was intended to fix the salaries of the judges of the county courts, which had been re-established throughout the state in counties where they had previously been abolished.</p> <p>6. Judges &wkey;>22(3) — Salary not limited to fees collected.</p> <p>Acts 1915, p. 603, providing for payment of fees collected in county court into the county treasury, and fixing the salary of the judge of such court, does not limit payment of salary to the special fund created by collection of fees; the obvious purpose of the act being to abolish the fees entirely.</p> <p>7. Statutes <&wkey;93( 10) — Fixing of salary of - county judge according to population valid'.</p> <p>Acts 1915, p. 603, which fixed the salaries of county judges according to classification based on the population of the several counties, is valid; "the classification being reasonable.</p> <p>8. Statutes <&wkey;l24(i) — Title of act fixing sal- • aries need not indicate that they were based on population.</p> <p>Acts 1915, p. 603, fixing the salaries of county judges based on classification of the counties according to population, is valid under Const. 1901, § 45, although the title did not suggest that the salaries of the several counties of the county court should he regulated according to population.</p> <p>9. Counties 165 — Salaries are payable on the last day of each month, and warrants should be so drawn.</p> <p>While Acts 1915, p. 603, fixing the salaries of the judges of county courts became effective January 15, 1917, yet as Code 1907, § 1569, provides that salaries of all officials are payable on the last day of each month, a salary warrant for January, 1917, should have been drawn on the last day of January for the amount of salary due for the fractional part of the month, so a warrant drawn on Eebruary 14, 1917, for one month’s salary, was not proper, and payment should be refused.</p>

K. McMorris, Judge. The State of Alabama, on the relation of its solicitor, filed a bill to condemn and confiscate a Briscoe Motor Car, found in the possession of one J. H. Reeves, and alleged to have been used in transporting prohibited liquor. The Briscoe Motor Car Company intervened and filed claim to the car, and from a decree condemning the car it appeals. Under the evidence in this case, the decree was erroneous.

J. Garrison, Judge. Petition by the State of Alabama, on the relation of W. A. Denson, for writ of mandamus directed to Prank Miller, as president of the jury commission of Shelby county, and others, to require the commission to fill the jury box as required by statute. Erom decree denying relief and dismissing the petition, relator appeals.

J. Garrison, Judge. Petition of the State of Alabama, on the relation of W. A. Denson and others, for alternative writ of mandamus directed to Frank Miller, as president of the jury commission of Shelby county, commanding him to bring into court the jury roll of the county and to keep it so that it may be open to the inspection of petitioners and other persons interested, in order that they may inspect it at sea-sonable times and places and gain information in reference to…

<p>1. Injunction <&wkey;l 18(4)— Bill must show equity.</p> <p>A bill without equity will not support an injunction.</p> <p>2. Chattel mortgages <&wkey;28l — Remedy of mortgagee in respect of promise of lessee to indemnify mortgagor.</p> <p>Where mortgagor of a barge, anticipating possible loss thereof in the hands of a lessee, took a promise of the lessee to pay a fixed sum | upon that contingency, and the barge was lost, if there was created a debt to the beneficiary of the promise to pay the sum stipulated, the mortgagee’s remedy was in an action at law against the .promisors who undertook to give the indemnity désired in the agreement, and not a suit to enjoin the collection of judgments against the lessee and to have substituted certain money for the barge and to foreclose the mortgage; the contract between the mortgagor and the lessee indicating no purpose on the part of any of the parties to undertake to substitute a stipulated sum for the barge in the mortgage.</p> <p>3.Chattel mortgages <§=277 — Pleading insufficient to show that certain money was substituted for mortgaged property.</p> <p>In an action to have certain money substituted for mortgaged property and to foreclose a mortgage, an averment in the complaint that ’“the said sum of $2,500, which represents the Value of said barge,” is but an allegation that the sum stated is the equivalent, but has no tendency to assert that the sum stated is the proceeds of a “sale” of the barge, or is money that was set apart to make good an assurance given by a lessee of the barge to the mortgagor-lessor that on loss of the barge a certain amount of money would be paid.</p>

Proceeding by the State to condemn an automobile used by Walter E. Puckett’s chauffeur for the unlawful transportation of prohibited liquors. From a decree of condemnation, Walter E. Puckett and others appeal.

Merrill, Judge. Bill by. Joseph Eros against the Wells Amusement Company for mandatory injunction to detach parts of a roof from the wall of complainant’s building. From a decree granting relief, respondent appeals.

<p>Appeal from Circuit Court, Jefferson County ; Romaine Boyd, Judge.</p> <p>Action by Peter Sampson against the- ’• Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Master and servant <&wkey;258(I)— Complaint for injury need not allege kind of braces which should have been furnished.</p> <p>Complaint for injury to servant through negligent failure of superintendent to furnish proper appliances for supporting or bracing platform need not allege the character or kind of appliances that should have been furnished.</p> <p>2. Evidence <&wkey;471 (31)— Statements that one was in charge of work not conclusion.</p> <p>Witness may testify that D. was in charge of the work, or that he got his orders from D. and that D. gave the orders and directions to the men.</p> <p>3. Trial &wkey;>79 — Objection to modified question necessary.</p> <p>On repeating, in a slightly different form, of a questiop to which objection had been sustained, objection must be made to it or the answer.</p> <p>4. Evidence &wkey;»471 (31) — Stating who had superintendence, not conclusion.</p> <p>A witness may testify as to who had superintendence over -him under the rules of the master.</p> <p>5. Appeal and error t&wkey;97l (2) — Finding witness an expert, not revised.</p> <p>Evident finding by trial court that witness to sufficiency of bracing of platform, who had testified he had been a carpenter for years, was an expert; will not be revised on appeal.</p> <p>6. Evidence &wkey;>5l3(l) — Expert may give opinion as to safety of platform.</p> <p>An expert may give his opinion as to unsafoty. of a platform and as to how it could have been'made safer.</p> <p>7. Master and servant <&wkey;204(!) — Servant does not assume risk of superinteiident’s negligence.</p> <p>Defense of assumption of risk is not available in action under Code 1907, § 3910, subd. 2, for injury to servant through negligence of superintendent.</p> <p>8. Master and servant <&wkey;289(4) — Servant not contributorily negligent as matter of law . in going on platform.</p> <p>A servant was not as matter of law guilty of contributory negligence in going on a platform without knowing it had been properly braced; he having a right to rely to some extent on the superintendent seeing it was safely braced before sending him to work on it, and the evidence not conclusively showing that he knew it was not properly braced or that it was in a dangerous condition.</p> <p>9. Trial <&wkey;228(4) — Instruction properly refused as unintelligible.</p> <p>Requested instruction liel& elliptical, and therefore unintelligible, and so' properly refused.</p> <p>10. Master and servant <&wkey;264( fl)' — 1Recov-ery not prevented by concurrence of negligence not charged.</p> <p>Though the complaint for injury to a servant from fall of an old platform only charges failure to properly brace it, yet there may be a recovery if, had it been properly braced, it would have withstood the contact of a new tank which, being improperly braced, fell on the old platform, occasioning its fall.</p> <p>11. Appeal and error i&wkey;!004(3)— Refusal of new trial for excessive verdict, not disturbed.</p> <p>Refusal of a new trial on the ground of the verdict being excessive cannot be held error, the jury having been properly instructed and having had sufficient data to warrant the amount' of the verdict.</p>

Merrill, Judge. Ejectment by the Calhoun Water Company against the Profile Cotton Mills. Judgment for plaintiff, and defendant appeals. The court erred in finding that appellant was in possession of certain tracts of land described as being beneath or underneath the dams, pipes, pipe line, and water box, and in finding for appellee on appellant’s plea of disclaimance.

Locke, Judge. Bill by the Columbia Loan & Investment Company against William A. R. Laird and others to enjoin the prosecution of ejectment actions. From a decree refusing to dissolve temporary injunctions, and overruling demurrers to the bill, respondents appeal. The complainant does not connect itself with the title at all, in the sense of being a bona fide purchaser. 113 Ala. 419, 21 South. 403.

Greene, Judge. Action by Lena Hoehn against the Sovereign Camp of Woodmen of the World upon a benefit certificate issued upon the life of William Herrick, in which she was named beneficiary. Judgment for plaintiff, and defendant appeals. A person cannot be named as a beneficiary of a member of a fraternal order, unless be comes within the class provided by law and the rules and regulations of the society, and a person not a dependent cannot be named as a beneficiary.

A. Steele, Judge. Bill by D. E. Townson against M. T. Fambrough, to specifically enforce a contract not to engage in business, by mandatory injunction. Decree for complainant, and respondent appeals. Bill by appellee against appellant, seeking to restrain the respondent from the operation of a barber shop in the town of Oneonta, Ala., in violation of an agreement to that effect entered into between the parties January 15, 1919.

<p>Appeal from Circuit Court, Shelby County ; Hugh D. Merrill, Judge.</p> <p>Action by Fannie Brown against Shelby' County for damages for personal injuries. Judgment for defendant, and plaintiff appeals.</p> <p>Portions of the minutes o'f the June and , July term of 1905 of the commissioners’ court, offered as evidence, should have been admitted. 119 Ala. 601, 24 South. 505; 137 Ala. 158, 34 South. 171; 185 Ala. 504, 64 South. 311; 193 Ala. 529, 68 South. 971; 197 Ala. 313, 72 South. 636. The contract could be ratified. 175 Ala. 391, 57 South. 823; 15 Corp. Jur. 554. The contract of June 20, 1905, was admissible. 81 Ala. 216, 1 South. 74. It is the duty of county boards to take a bond of guaranty from a contractor building a county building. Section 2512, Code 1896; 125 Ala. 390, 27 South. 977; 80 Ala. 207.</p> <p>The contract entered into was void, because no bond was taken. Acts 1903, p. 413. Being void, it cannot be ratified. 9 Ala. 198; 32 Ala. 288; 93 Ala. 503, 9 South. 596; 54 ' Miss. 668; 59 Cal. 517; 77 N. Y. 130; 48 Ala. 575. No action lies against the county, unless the bridge was erected under a valid and legal contract. 116 Ala. 378, 22 South. 545; 54 Ala. 639, 25 Am. Rep. 730. The orders,' etc., of the commissioners’ court were not admissible. Sections 955, 3970, 3979, 3985, Code 1896; 20 Ala. 446; 18 Ala. 694; 137 Ala. 155, 34 South. 171; 186 Ala. 611, 65 South. 163; 195 Ala. 336, 70 South. 259; 113 Ala. 626, 21 South. 135; 146 Ala. 455, 41 South. 619. On these authorities, the court properly refused to admit the other evidence complained.</p>

Bill by F. C. Pryor against J. E. Gowan to compel specific performance of contract to convey lands. From decree sustaining demurrer to the bill, complainant appeals. The contract set up in the bill does not come within the purview of Acts 1909, p. Ill, § 2. Section 4579, Code 1907; 159 Ala. 533, 49 South. 234; Joyce on Ins. 1092-A; Lewis’ Sutherland, Stat. Const, vol. 2, §§ 422 to 434 ; 36 Oyc. 1119, 1120; Dix v. State, 8 Ala.

B. Foster, Judge. Bill by M. L. Jackson against J. P. Jackson and others to declare a deed a mortgage and to redeem. From a decree denying the relief prayed, complainant appeals. Ruder the facts in this case, equity will treat the deed as a mortgage. 72 Ala. 361. While property is usually worth what it brings, there was manifest a great disparity between the value of the laud and what Spear loaned upon it.

P. Almon, Judge. Bill by the Franklin Social Club against the Town of Phil Campbell to enjoin the enforcement of an ordinance and from prosecuting suits thereunder. From a decree dissolving the temporary injunction, complainant appeals. Acts Sp. Sess. 1909, p. 193, granted the complainant tbe right for which it contends. The ordinance sought to be enjoined contravenes tbe right given by this statute and is otherwise unreasonable. 118 Ala. 143, 22 South. 628, 72 Am.

<p>Appeal from Circuit Court, Dallas County; B. M. Miller, Judge.</p> <p>Bill by Lula E. B. Cox against R. L. Somerville and others to have mortgages declared void. From decree in part for respondents, complainant appeals.</p> <p>Appellant filed this bill against appellees, seeking to have declared void three certain mortgages purporting to have, been executed by complainant and her husband, C. O. Cox. The mortgages embraced two separate tracts of land, one consisting of 45 acres owned by complainant in her own name, and the other consisting of 33% acres owned by the husband, O. C. Cox, who was'made a party respondent to the bill. This latter tract is alleged to have been the homestead at the time of the execution of said mortgages, and of value less than $2,000. Complainant alleged that she neither signed nor acknowledged any of these mortgages, and sought to have the mortgage on the 45 acres, her separate estate, canceled upon the additional ground that it was to secure a debt of her husband.</p> <p>Respondent C. C. Cox admitted the allegations of the bill. The other respondents answered, denying the bill, and sought correction of the description of the 33% acres, together with foreclosure of the mortgages.</p> <p>The witnesses were examined orally before the court, except C. C. Cox, whose depositions were taken. C. C. Cox, the husband of complainant, testified that he signed the name of his wife to the mortgages without her knowledge or consent, or authority in any manner; that she. did not appear before the officer purporting to have taken such acknowledgment as shown by the mortgages, but that he signed the name of the officer to the acknowledgments, his wife knowing nothihg about it. His testimony further discloses that he. had resided upon the 33% acres as his homestead for the past 30 years, and that its value did not exceed $2,000. The mortgages in question were dated in 1910, 1912, and 1916.</p> <p>Complainant testified in her own behalf, denying that she executed, any of the mortgages, or that she appeared before any officer to have her acknowledgment taken, or that she received any benefit therefrom.</p> <p>The husband was at that time confined to his bed with a fatal malady, and it appears that he died before the submission of the cause, and revivor was therefore had against his administrator.</p> <p>One witness, qualifying as an expert, testified to the genuineness of the signature to the mortgages by comparison of admitted handwritings, while another testified to the contrary. The original instruments, together with the handwriting of admitted genuine signatures, were certified to this court.</p> <p>The court below granted relief as to the 45 acres, holding the mortgages void as to said, separate estate of the complainant, but held to the conclusion that her signature to all the mortgages was genuine, and decreed that the mortgages on the homestead tract of 33% acres were valid and subsisting liens thereon, and ordered the foreclosure of said mortgages upon said homestead. From this decree the complainant prosecutés this appeal.</p> <p>No mortgage on the homestead is valid, without the voluntary signature and assent of the wife, section 205, Const. 1901; section 4161, Code 1907; 62 Ala. 486, and the cases following it.</p> <p>Counsel' criticize the evidence and the authorities cited by appellant, and assert that the court had the witnesses before it, and that its finding will not be disturbed, unless plainly erroneous. 201 Ala. 653, 79 South. 125; 201 Ala. 629, 79 South. 191; 201 Ala. 674, 79 South. 246 ; 201 Ala. 685, 79 South. 257; 202 Ala. 175, 79 South. 659; 80 South. 36; 80 South. 410; 81 South. 364; 202 Ala. 609, 81 South. 551, and 203 Ala. 38, 81 South. 829 ; 203 Ala. 170, 82 South. 420 ; 203 Ala. 266, 82 South. 510.</p>

C. B. Gwin, Judge. Action by L. G. Carroll, as administrator of Sam Carroll, deceased, against the Thomas Furnace Company for damages for death of intestate while in defendant’s employ. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Circuit Court, Calhoun County.; Hugh D. Merrill, Judge.</p> <p>Bill by the First National Bank of Anniston against J. R. Cleckler and his wife, Ethel M. Cleckler, to set aside a conveyance as fraudulent and to foreclose a mortgage. J. R. Cleckler filed a cross-bill making the First National Bank of Anniston, the Little-Cleekler Construction Company, the National Surety Company of New York, W. L. Little, and F. M. Cleckler parties respondent thereto, asking for tire appointment of a receiver, and to cancel and surrender the mortgage sought to be foreclosed in the original bill as a cloud upon the title of Ethel M. Cleckler. From a decree sustaining demurrers to the cross-bill, cross-complainants appeal.</p> <p>The original bill charged that Cleckler owed the complainant $20,000 at the time of the conveyance in 1912 by J. R. Cleckler to his wife, Ethel M. Cleckler, of certain lands, alleged the conveyance to be fraudulent, and sought foreclosure of a mortgage upon one of the tracts of land which had been so conveyed to Ethel M. Cleckler.</p> <p>The cross-bill sets up that J. R. Cleckler is not indebted to the bank in any amount as an individual or in any other manner unless as a member of the firm of Little-Cleeklér Construction Company; that the partnership is insolvent and has discontinued active business, but still owes money to the creditors of the firm, which these creditors are seeking to collect from the individual partners; that W. L. Little is a member of the firm and owes debts to the bank other than his liability as a partner for which he has pledged individual property to the bank; and that the indebtedness of J. R. Cleckler to the bank would be materially reduced upon an accounting between Little, the partnership, and the bank, for the reason that Little appropriated assets of the firm to his1 own use and had illegally used such property of the firm to pay and secure the bank large amounts on his individual indebtedness, and had paid other creditors individual debts out of the firm’s' assets, of all of which dealings the bank knew. The demurrers raise the question discussed in the opinion. The court denied the petition for a receiver.</p> <p>The court erred in declining to appoint a receiver. 142 Ala. 444, 38 South. 664, 4 Ann. Cas. 459; 149 Ala. 96, 43 South. 141; 166 Ala. 247, 52 South. 316; 54 Ala. 463 ; 37 Ala. 201; 27 Ala. 432, 62 Am. Dee. 771. The cross-bill was not multifarious, nor was it a departure from the original bill. 65 Ala. 617; 56 Ala. 147; 51 Ala. 574; 188 Ala.- 449, 66 South. 22; 96 Ala. 574,. 11 South. 642, 18 L. R. A. 166; 192 Ala. 269, 68 South. 897; 152 Ala. 262, 44 South. 592.</p> <p>The cross-bill proceeds upon an erroneous assumption as to the liability of partners, and the demurrers were properly sustained thereto. 22 A. & E. Ency. of Law, 173.</p>

W. Haralson, Judge. Bill by R. A. McWhorter against R. R. Chappelear to acquire title to certain lands and for other purposes. From a decree overruling demurrers to the bill, respondent appeals.

<p>1. Reformation of instruments <&wkey;36(3)— Bill not directly averring bilateral mistake not _ good.</p> <p>Where, under averments of bill to reform contract and enforce specific performance, mistake or inadvertence averred might be that of one only of the parties, though there was a later averment that purpose of parties was otherwise, bill did not comply with that strict rule of pleading which requires great particularity in a bill for reformation, with averment of facts showing how the mistake was made, whose mistake it was, and what" brought it about.</p> <p>2. Specific performance &wkey;?20 — Bill without equity as against party not privy to contract.</p> <p>Bill for reformation of a contract and to enforce specific performance held without equity as against a party not a privy to the contract; it neither creating nor transferring any right for or against him.</p> <p>3. Specific performance &wkey;>l4 — Not decreed where performance of contract depends on consent of third person.</p> <p>An agreement with S. by B. to cause a mortgage held by a third party on the property of S. to be paid, satisfied, and discharged of record held not specifically enforceable by S.; performance depending on the consent of such third person to have the record satisfied after payment.</p> <p>4. Specific performance &wkey;>!7 — Bill demurrable as not showing gomplainant’s interest.</p> <p>In suit to specifically enforce a contract to procure record release of mortgage on land described in the contract as belonging to complainant, and to reform such contract to show that complainant’s sister owed the mortgage debt and owned the mortgaged land, bill held demurrable where the sister was not made a party defendant and there was no averment of facts showing complainant to be the real beneficiary.</p>

Kyle, Judge. Bill by Asa B. Puller and others, individually and as executors, against R. E. Butler and another, for the sale of surface rights for division among joint owners. Prom decree granting relief, respondents appeal. Appellees filed the bill in this cause against the appellants, seeking a sale of the, surface rights in 100 acres of land and the mineral rights in 440 acres situated in Cullman conn-1 ty for division among the parties to the suit as tenants in common.

<p>Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.</p> <p>Action by the Home Guano Company against the International Agricultural Corporation for breach of contract. From a decree sustaining demurrers to the complaint, plaintiff takes nonsuit and appeals.</p> <p>The following is the contract:</p> <p>This agreement made this 6th day of June, 1912,’by and between the International Agricultural Corporation, a corporation duly organized under and pursuant to the laws of the state of New York, party of the first part (hereinafter designated as “seller”) and the Home Guano Company, of Dothan, Ala., a corporation duly organized under and pursuant to the laws of the state of Alabama, party of the second part (hereinafter designated as “buyer”) witnesseth: The parties hereto have contracted and agreed, and do hereby contract and agree, as follows: Buyer agrees to purchase and receive, and does hereby purchase, and the seller agrees to sell and to deliver, and does hereby sell, under the terms and conditions hereinafter set forth, sulphuric acid of the following grades, quantity, and at price stipulated:</p> <p>Fifty-six hundred (5,600) tons of two thousand (2,000) pounds each, minimum, and eight thousand (8,000) tons, of two thousand (2,000) pounds each, maximum, of 60% Beaume sulphuric acid for delivery in approximately equal monthly quantities from August 1, 1912, to February 1, 1913. Eight thousand tons (8,000) tons, of two thousand (2,000) pounds each, 60% Beaume sulphuric acid (10% more or less buyer’s option), for delivery in approximately equal monthly quantities from August 1, 1913, to February 1, 1914. Eight thousand (8,000) tons, of two thousand (2,000) pounds each, 60% Beaume sulphuric acid (10% more or less buyer’s option), for delivery in approximately equal monthly quantities from August 1, 1914 to February 1, 1915.</p> <p>Five dollars and sixty cents ($5.60) per ton of two thousand (2,000) pounds basis 60% Beaume acid, f. o. b. Copperhill, Tenn., contingent upon seller’s ability to secure a rate of freight on 60% acid, Copperhill, Tenn., to Dothan, Ala., of three dollars ($3.00) per ton of two thousand (2,000) pounds. Seller guarantees that during the life of this contract no higher rate of freight shall be enforced than three dollars and twenty-five cents ($3.25) per ton two thousand (2,000) pounds between the above-named points, but should said freight rate be in excess of three dollars ($3.00) per ton two thousand (2,000) pounds, seller agrees to pay, upon demand one half of such excess up to the maximum rate guaranteed by seller. Seller agrees to furnish, without additional expense, tank cars (tank cars to be in good condition) for the transportation of such acid. Payment for acid under this contract, as delivered from seller to buyer, shall be made in cash in New York exchange- on the tenth of each month for the preceding calendar month’s deliveries; each month’s deliveries to stand as a separate sale and contract.</p> <p>It is understood that seller is privileged to deliver acid of greater or lesser strength than 60% Beaume”, but not less than 57% Beaume nor more than 62.50% Beaume. For any excess in such acid above or bejow 60% Beaume a proportionate or reduction shall be made in the price per ton according to the per cent, of 60% acid contained in such acid of higher or lower degree, as set forth in the table of the Manufacturing Chemists’ Association. Approximately at the end of each month seller shall reimburse buyer for additional freight which buyer may have paid or incurred liability for by reason of the shipment of acid of weaker strength than 60% Beaume, and buyer shall pay to the seller the amount of freight charges saved to the buyer by reason of the shipment of acid of greater strength than 60% Beaume. Settlement shall he made for each and every shipment upon the basis of 60% Beaume, as determined by the producing company, Copper-hill, Tenn., whose test shall be the basis of the settlement. In case of dispute as to the accuracy of such analysis, sample of the carload in question, as drawn by the producing company at Copperhill, shall be submitted to Ledoux & Co., Analytical Chemists,- No. 99 John street, New York, for analysis, whose determination shall be final; railroad weights at the point of shipment to govern.</p> <p>It is understod that all acid purchased under this contract is for buyer’s own consumption, and for shipment to buyer’s works at Dothan, Ala.</p> <p>In the event of war, or if prevented by strikes of workmen, epidemics, fires, cyclones, floods or other providential cause, accidents to machinery, boilers or hindrances in shipping, whereby the seller or buyer may be prevented from carrying out the provisions of this contract, then and in that (event, it is mutually understood that this contract is suspended pending peace declaration, or for such time as may reasonably be required to rebuild or make repairs caused by fires, providential influences or other hindrances above enumerated.</p> <p>Even if time is expressly declared to be of the essence of the contract, it may be. waived by the conduct of the parties. 196 Ala. 337, 71 South. 439; 235 U. S. 451, 35 Sup. Ct. 190, 59 L. Ed. 312; 181 U. S. 453, 21 Sup. Ct 680, 45 L. Ed. 948; 128 U. S. 403, 9 Sup. Ct. 127, 32 L. Ed. 468; 127 Ala. 602, 29 South. 34; 171 Ala. 568, 54 South. 1000; 78 Ala. 243, 56 Am. Rep. 28; 13 Corpus Juris, 689. Where time of performance is waived, time thereafter becomes indefinite, and one party cannot rescind until after notice and a reasonable time for performance. 196 Ala. 337, 71 South. 439; 146 Ala. 568, 40 South. 1018; 128 Ala. 221, 29 South. 640 ; 208 N. Y. 253, 101- N. E. 867, Ann. Cas. 1914D, 284; 113 Cal. 221, 41 Pac. 1017 ; 45 Pac. 254. This case is ruled by 196 Alá. 337, 71 South. 439, and 10 Ct. Ex. L.' R. 195.</p> <p>Time was of the essence of the contract. 196 Ala. 337, 71 South. 439; 5 Elliott on Contracts, §-4996. 'Such being the case, there can be no recovery at law on the failure to perform within the stipulated time. 115 U. S. 188, 6 Sup.- Ct. 12, 29 L. Ed. 366; 115 U. S. 213, 6 Sup. Ct. 19, 29 L. Ed. 372 ; 96 U. S. (6 Otto) 24, 24 L. Ed. 644; 144 U. S. 394, 12 Sup. Ct. 646, 36 L. Ed. 479; 132 Ala. 593, 32 South. 306; 1 Ala. App. 664, 56 South. 49; 121 U. S. 225, 7 Sup. Ct. 951, 30 L. Ed. 936; 187 Ala. 148, 65 South. 834; 139 Mich. ' 612, 102 N. W. 1057; 126 111. 294, 18 N. E. 735 ; 95 Me. 209, 49 Atl. 1062.</p>

B. Foster, Judge. Bill by S. B. Bowdoin and Ms wife, N. B. Bowdoin, againsf T. S. Faulk & Co. and the People’s Bank of Samson, for an accounting, > purging of usury certain mortgages, and to enjoin foreclosure. From the decree rendered, complainants appeal, and respondents file a cross-appeal.

W. Haralson, Judge. Ejectment by J. B. NicholS against V. A. Claborne. Judgment for plaintiff, and defendant appeals. The plaintiff was the son of James G. Nichols and was of age at the time of his father’s death. His father died leaving a widow and eleven children, five of whom were minors at that time.

Locke, Judge. Bill by the Fowlkes & Myatt Company, judgment creditor, against C. C. Fleming and others to enforce the lien of their judgment upon certain property. From a decree overruling his demurrers to the bill, respondent C. C. Fleming appeals. The judgment is presumed paid and satisfied. Sections 4152 and 4833, Code 1907; 106 Ala. 353, 52 South. 200; 86 Ala. 391, 5 South. 306.

<p>I.Shipping &wkey;>l32 — Counts held to be based on breach of special contract, and not on breach of common-law or statutory duty.</p> <p>In an action against a carrier for failure to transport plaintiff’s goods by defendant’s steamboats, counts alleging notice to defendant that goods were placed at customary landing and stopping place on the river, and that defendant agreed to take up and load such goods on its steamboats and barges and transport goods to specified landing on the river for an agreed compensation but negligently failed and refused to transport goods, negligently permitting them to be washed away by a flood, held- based on a breach of a special contract, and not on a breach of the common-law or statutory duty of defendant as a common carrier.</p> <p>2. Carriers <&wkey;69(2) — Counts based on breach of special contract by agents without alleging authority held demurrable.</p> <p>In action against a carrier based on breach of a special contract, counts alleging contract to have been made with defendant’s agents held demurrable for failure to allege that the agents had authority to make it.</p> <p>3. Shipping <&wkey; 108 — Refusal of Instruction on issue of whether carrier’s special contract was unconditionally to transport goods held error under evidence.</p> <p>In action for breach of a special contract to transport ties, wherein there was evidence that the carrier did not agree absolutely and unconditionally to transport but merely to do so whenever a barge could be secured for the purpose, and’ that it was unable to transport them before they were washed away by a flood, refusal of requested charges hypothesizing such theory of the ease lieW reversible error.</p>

'C. B. Gwin, Judge. Action by Will Underwood against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and from an order denying its motion for new trial, defendant appeals. The defendant’s motion for a new trial should have been granted. 129 Ala. 410, 30 South. 584; 133 Ala. 279, 32 South. 15; 183 Ala. 187, 62 South. 500; (C. C.) 31 Fed. 528; 67 Fed. 510, 14 C. C. A. 492 ; 84 Fed. 772, 28 C. C. A. 207.

Petition by the State of Alabama, on the relation of J. Q. Smith, Attorney General, for writ of prohibition to Hon. W. T. Lowe, as Judge of the County Court of Morgan County, to restrain him from hearing application for bail made by one Charlie Namie. Charlie Namie was indicted for murder in the first degree, tried on said charge, and a mistrial resulted.

Pugh, Judge. Petition by the county authorities of Jefferson county for mandamus to require Hon. J. P. Stiles, as Judge of Probate, to sign certain bonds. From a judgment denying the writ, petitioner appeals. The statute designates the Judge of Probate as the person to sign such bonds, and the court erred in declining to require him to do so. Sections 171, 172, Code 1907; 110 U. S. 162, 3 Sup. Ot. 555, 28 L. Ed. 105.

Kyle, Judge. . Assumpsit and trover by the Hinton Milling Company against Smith Bros, and others. The court suppressed a certain deposition, whereupon plaintiff took a nonsuit, with bill of exceptions, and appealed. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

Bill by W. D. Donovan against J. A. McCord, to restrain trespass pending a decision in ejectment. From a decree denying relief, complainant appeals. Appellant filed this bill against the appellee, seeking an injunction against trespass in aid of a pending ejectment suit brought by him against respondent to this bill for the recovery of lands, the subject-matter of this controversy.

Bill by Annie W. Thompson against H. F. Martin and the Union Bank & Trust Company for an accounting and to fix a lien upon certain lands. From the decree for respondent last named, complainant appeals. Martin held as trustee for Mrs. Thompson. 73 Md. 191, 20 Atl. 920, 10 L. R. A. 689; 54 Ala. 309, 25 Am. Rep. 679. A special agent’s powers are to be strictly construed. 1 Mechem on Agency, § 742; 104 Ala. 100, 16 South. 29; 69 Ala. 379; 68 Ala. 204; 16 Ala. 28; 12 Ala. 252.

W. Haralson, Judge. Detinue by J. O. Grow against Robert B. Beck. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. The suit was for four hales of cotton and the seed. Crow furnished the teams and the land to be cultivated, and Beck furnished the labor, with an ¿greement to divide the crops, share and share alike.

A. Sharpe, Judge. Action by the Cleveland Laundry Machinery Manufacturing Company against the Southern Steam Carpet Cleaning Company upon a verified account. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

<p>Í. Vendor and purchaser <@=»265 (2) — Recital of outstanding note notice of vendor’s lien.</p> <p>The recital in a deed of an outstanding note for the purchase money carried notice of the vendor’s lien to all persons claiming as purchasers.</p> <p>2. Contracts <&wkey;273 — Rescission must be in . toto.</p> <p>Where a contract is rescinded, it must be rescinded in toto.</p> <p>3. Pledges <©==38 — 'Transfer of note carries collateral, but same may be withheld.</p> <p>While, in general, the transfer of a note passes to the transferee the right of the transferor in collateral held as security, and the same rule is applicable to the assignment of a debt, yet the parties may agree otherwise and the assignor reserve the collateral.</p> <p>4. Fraudulent conveyances &wkey;>3l5(I) — Decision held not to vest complainant with any rights in a note.</p> <p>Where complainant, who acquired a debtor’s stock of goods and gave his note to a creditor, filed, in a suit by the creditor attacking a conveyance and setting up nonpayment of the note, a cross-bill, which asserted complainant was entitled to the delivery of a vendor’s lien note received by the creditor as collateral, which was dismissed, and the appellate court reversed the decree, merely ordering that the creditor first exhaust his remedy against the vendor's lien note, such decision was in no sense an adjudication giving complainant any right or title to the vendor's lien note.</p> <p>5. Pledges <&wkey;44 — Settlement held to have dis< charged vendor’s lien note.</p> <p>Where, to enable a firm to obtain credit, one member conveyed to it lands, taking back a vendor’s lien note which was pledged for firm debts, held that transactions between the creditor and others operated as a discharge of the note, so that, though the creditor still held it, he had no enforceable rights therein which he could pass to an assignee.</p> <p>6. Adverse possession <&wkey;60(4) — Disavowal necessary, where possession is in privity with title of rightful owner.</p> <p>When the original possession of the holder of land is in privity with the title of the rightful owner, in order to enable such holder to avail himself of limitations, nothing short of an open and explicit disavowal and disclaimer of holding that title and assertion of title in himself will satisfy the law, though if a mortgagor or vendor in possession sells to a third person he may hold it adversely to the mortgagee or vendee, since every trustee may repudiate his trust.</p> <p>7. Champerty and maintenance <&wkey;6(l) — Transfer of vendorfs lien note held champertous.</p> <p>A transfer of a vendor’s lien note by a creditor after settlement, so that the creditor no longer was entitled to enforce it, for the sole consideration that the transferee pay one-fourth of any recovery he might obtain, is c-hampertous.</p>

A. Pearce, Judge. Assumpsit by H, H. Dowling against (be Southern Cotton Oil Company. Judgment for plaintiff, and defendant appeals. The action is stated on the common counts, as for an account stated, balance due on account, and for goods, wares, and merchandise sold.

<p>1. Appeal and error <&wkey;500(2) — Record held not to show ruling on demurrer to particular count.</p> <p>Where the judgment entry recited the filing of demurrer to the complaint and the overruling of the same and the complaint contained four counts and it did not appear that there was a specific ruling upon a demurrer to count four, defendant on appeal cannot complain of the demurrer to that count.</p> <p>2. Partnership <&wkey;264 — Partner’s transfer of interest causes dissolution.</p> <p>The transfer by one partner of his interest in the firm operates as a dissolution.</p> <p>3. Partnership <&wkey;296(l) — Where partners agreed as to payment of debts, of dissolved firm, partner paying same may recover at law.</p> <p>Though only a chancery court can settle partnership accounts between partners, yet, where the firm was dissolved by one partner’s sale of his interest and the two agreed that plaintiff should pay the debts of the firm and defendant would reimburse him, the plaintiff may in such circumstances recover at law. ■</p> <p>4. Appeal and error <&wkey; 1008(1) — Finding by court has force of verdict.</p> <p>Where the evidence was heard by the court, its findings of fact is equivalent to a verdict.</p>

L. Martin, Judge. Action by the Smith Sons Lumber Company against the individuals composing the firm of 'Steiner, Crum & Weil and Thomas M. Stevens on the common counts and on special contract. Judgment for defendants, and plaintiff appeals.

A. Greene, Judge. Will Stover was convicted of murder in the first degree, and he appeals. Affirmed. The court should have granted the motion to quash the venire and continue the case. Sections 7276, 7277, Code 1907; 109 Ala. 45, 19 South. 491; 110 Ala. 11, 20 South. 363; 44 Ala. 81; 48 Ala. 386; 58 Ala. 594.

A. Sharpe, Judge. Action by Lillie W. Parker against the Manhattan Life Insurance Company on a policy of insurance. Judgment for the plaintiff, and the defendant appeals. Premium notes accepted by appellant were made out on the following form: (This note is to be signed by the person whose life is insured, and also by the persons to whom the policy is payable.) $-.

Grayson, Judge. Action by A. T. Lawson, as administrator of the estate of J. R. Lawson, against the Mobile Electric Company for damages for the death of his intestate. Judgment for defendant, and plaintiff appeals. The affirmative charge was not proper in this case. 151 Ala. 313, 44 South. 47; 166 Ala. 482, 52 South. 86; 175 Ala. 176, 57 South. 724, Ann. Cas. 1914C, 1119; 194 Ala. 175. 69 South. 601: 194 Ala. 338, 70 South. 7; 195 Ala. 152, 69 South. 964.

A. Pearce, Judge. Ejectment by the Southern Cotton Oil Company against Freddie Lammon. ■ From judgment for plaintiff, defendant appeals.

<p>Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson, Judge.</p> <p>Petition by the State of Alabama, on the relation of vVm. J. Waldrop, as Clerk of the Circuit Court of Jefferson County, for mandamus compelling George A. Hogan, as Coroner of Jefferson County, to make return to his office of the proceedings had by him in a certain investigation. From a decree denying the petition, petitioner appeals.</p> <p>Counsel quote the provisions of sections 6649, and 6648, 7162, 7169, Code 1907, and insist that it is the coroner's duty under section 7169 to file with the clerk the proceedings had in the inquest into the death of Granger, but they cite no authority in the support thereof.</p> <p>Counsel insist that there was no inquest held under the allegations of the petition, and that therefore the sections disputed are without application.</p>

B. Foster, Judge. Bill by W. H. Jones and another against H. S. Lunday and another to set aside a conveyance as a fraud upon creditors. From the decree entered, the respondents appeal. Bill by appellees against appellants to set aside a' conveyance executed by the husband to the wife (respondents) as a fraud against complainants who were creditors.

R. McLellan, Judge. T. H. Pritchett, as administrator of the estate of Mary J. Lowery, filed his accounts and vouchers for the final settlement of the estate. There was contest by R. E. Lowery and others, distributees of the estate, and from a decree passing the account contestants appeal.

P. Almon, Judge. Bill' by William L. Chenault against Tim E. Toney and others for statutory redemption of certain lands foreclosed under mortgage. Prom the decree rendered, respondents appeal. No one is named in the bill as respondent, and hence there is no bill.1 66 Ala. 115; 2 Stew. 280; 1 Ala. 379; Sim’s Chancery Practice, § 161; rule 17, Chañe. Pract. Complainant had no right to redeem. Section 5746, Code 1907; 176 Ala. 134, 57 South. 705.

S. Williams, Judge. Action between N. H. Mooneyham and Mrs. Gussie Herring, under claim to certain property levied on by Mooneyham as the property of J. F. Herring. Judgment for claimant, and plaintiff appeals.' Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Subtenant’s only right is to have the landlord first exhaust the crops of tenant in chief. Section 4734, Code 1907; 102 Ala. 464, 14 South. 770.

<p>1. Appeal and error <&wkey;l008(l) — Judgment of trial court which heard witnesses and inspected scene not disturbed.</p> <p>Where the trial judge not only had the witnesses before him, but also made personal inspection of the scene of the automobile collision involved, his judgment on the issues of fact will not be disturbed on appeal.</p> <p>2. Appeal and error <&wkey;l058(2) — Exclusion of superfluous testimony harmless to plaintiff.</p> <p>In an action for damages to plaintiff’s automobile in collision defendant’s, where witness testified defendant’s car was running from 20 to 25 miles an hour, and that plaintiff’s car was also running at like speed, exclusion of testimony of such witness as to whether or not defendant was coming as fast or faster than plaintiff was harmless to plaintiff.</p> <p>3. Appeal and error t&wkey; 1053(I) — 'Withdrawal of defendant’s statement hy her counsel eliminated any error.</p> <p>AYhere, after plaintiff moved to exclude certain testimony of defendant, defendant’s counsel stated the statement would be withdrawn, there was no error.</p> <p>4. Appeal and error <&wkey;I056(I) — Exclusion of plaintiff’s offered evidence adding nothing harmless.</p> <p>In action for damages to plaintiff’s automobile in collision with defendant’s, exclusion of plaintiff’s proof of a custom in the city giving cars on a main thoroughfare, like the avenue through which his had been traveling, the right of way over cars Coming into such avenues from side streets, as defendant’s had done, held harmless to plaintiff, as the evidence would have added nothing to the case.</p> <p>5. Municipal corporations <&wkey;705(2) — Automobilist coming from side street held not negligent in failing to stop.</p> <p>Defendant automobilist, coming into a main avenue from a side street, was not necessarily negligent in, failing to stop her car immediately on discovering plaintiff’s car, driven by his son, approaching on the avenue, the proof showing that a reasonably prudent person would have been impressed that to stop would have meant destruction to both cars, and danger to their occupants.</p>

Wilkinson, Judge. Bill by Rose Johns Cannon against the Birmingham Trust & Savings Company and A. W. Smith, to annul two trust agreements. From a decree overruling the demurrers of respondents to the hill as amended, respondents appeal.

Action by the Central Hardware Company against A. G. Anderson for rent and advances, in which attachment was levied upon certain real property which was claimed by Henry King. On second trial of the claim suit, there was judgment for plaintiff (85 South. 821), and claimant brings certiorari.

Proceeding between L. A. Marler and the United States Cast Iron Pipe & Foundry Company. Judgment for the former was reversed on appeal by the Court of Appeals (86 South. 103), and L. A. Marler petitions for certiorari to the Court of Appeals to review and revise such judgment.

L. Brewer, Judge. Bill by_ Julia S. O’Brien against G. J. Sorrell, as guardian, etc., of the heirs of William B. O’Brien, deceased, for a lien upon lands to her support and maintenance. From a decree overruling demurrer to the bill, the guardian appeals. Appellee filed the bill in this cause seeking to fasten a lien on certain lands for her support and maintenance, claiming that such was her right under the will of William B. O’Brien, deceased.

<p>Certiorari to Court of Appeals.</p> <p>Artemis Vacalis was convicted of receiving , stolen property, and he appealed to the Court of Appeals, which affirmed (80 South. 89), and he brings certiorari.</p> <p>In holding that Touart was not required to testify, because the communication was privileged. 171 Ala. 19, 55 South. 159; 39 South. 580;- 124 Ala. 268, 27 South. 420 ; 67 Ala. 164; 75 Ala. 546. The oral charge of the court, misstating the law, is not cured by written charges given. 168 Ala. 658, 53 South. 241. The oral charge of the court was clearly erroneous. 8 Ala. App. 257, 62 South. 959; 33 Ala. 434; 17 N. D. 519, 117 N. W. 869; 80 S. C. 368, 61 S. E. 1073; 62 N. J. Law, 40, 40 Atl. 641; 34 Cyc. 527.</p> <p>No brief reached .the reporter.</p>

A. Pearce, Judge. Ejectment by Travis Mixon against Thad B. Pennington to establish a boundary line. Judgment for defendant, and plaintiff appeals.

B. Foster, Judge. Action by Mrs. A. L. Wimbish against Walker D. Hines, as Director General of Railroads, operating the Central of Georgia Railway Company, for damages for personal injuries suffered in a collision. Judgment for the plaintiff, and the defendant appeals.

B. Foster, Judge. Petition of M. A. Owen, as Deputy Solicitor, for mandamus to be directed to S. N. Rowe, as Judge of Probate, to require him to issue monthly a county warrant payable to Owen as salary at the rate of $750 per annum. From a decree granting the writ, respondent appeals. For rules of statutory construction, see 184 Ala. 28, 63 South. 87; 5 Ala. App. 56, 59 South. 361; 10 Ala. App. 191, 64 South. 637; 182 Ala. 582, 62 South. 28; 179 Ala. 579, 60 South. 280.

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Action by D. T. Burke against the Curtis' Aeroplane Motor Company for damages for personal injuries. Judgment for the defendant, and the plaintiff appeals.</p> <p>The court erred in directing a verdict for the defendant. 95 Ala. 404, 11 South. 341; 107 Ala. 272, 18 South. 37; section' 5331, Code 1907.</p> <p>Counsel, after a discussion of the evidence, insist that the court properly directed the verdict; but they cite no authority in support of their contention.</p>

W. Haralson, Judge. Bill by W. S. Wiles, as transferee of a mortgage executed by Moore to the International Agricultural Corporation, against J. T. Moore, A. L. Teal, and others, with the T. L. Farrow Mercantile' Company as cross-complainants for an accounting, foreclosure, etc. From a decree confirming an accounting report by the register, Al. Teal appeals.

<p>Appeal from Circuit Court, Coosa County; S. L. Brewer, Judge.</p> <p>Action by D. F. Green, as Superintendent of Banks, against Z. D. McCord, on a promissory note. From rulings on the pleadings, plaintiff took nonsuit with bill of exceptions, and appeals.</p> <p>The plaintiff has a right to review the ruling of the court inducing the nonsuit. 184 Ala. 279, 63 South. 567. Counsel discuss the assignments of error, but without citation of authority.</p> <p>A surety; who has paid his principal’s debt, becomes the owner of the debt and all the collateral security thereto. Sections 5385 and 5388, Code 1907; 196 Ala. 576, 72 South. 115. The consideration of a written instrument may be impeached. 141 Ala. 308, 37 South. 367; section 3966, Code 1907. Accommodation parties may plead absence or failure of consideration against any person not a holder in due course. Sections 4983, 4984, 5013, C6de 1907. The plaintiff here was not a holder in due course. Section 5007, Code 1907.</p>

Petition by William Gray for certiorari to the Court of Appeals to review and revise the judgment and decision of said court rendered on the appeal in the case of William Gray v. W. H. Burdette, 86 South. 95. The Court of Appeals erroneously construed the provisions of section 4695, Code 1907, in holding that it applied, not only to the cultivation, but also to the finishing of the crop. 84 Ala. 80, 4 South. 19.

S. Williams, Judge. Action by Mrs. C. B. Stephens begun by attachment against Bill Jackson, with levy upon certain corn and claim to the same by J. A. McDonald. Judgment for plaintiff, and claimant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. The court erred in refusing to allow the affidavit of claimant to be amended. Sections 2965 and 6043, Code 1907; 149 Ala. 655, 43 South. 117; 66 Ala. 177.

Loyd Tate, Judge. Petition by W. Z. Shackleford for a writ of certiorari to quash a proceeding in the county court, where the costs of a proceeding, charging trespass after warning instituted by the petitioner against Charles La Rouke, were assessed against petitioner. From a. judgment denying the writ, petitioner appeals. Section 6722, Code 1907, is highly penal, and should be strictly construed. 58 Ala. 579.

J. Garrison, Judge. Assumpsit by D. F. Green, as Superintend-ant of Banks, liquidating the Farmers’ & Merchants’ Bank of Goodwater, against Z. D. McCord. Judgment for defendant, and plaintiff appeals. The action is upon certain promissory notes, executed by the defendant, and payable on demand to the Farmers’ & Merchants’ Bank of Goodwater, aggregating with interest and attorney’s fees something more than $1,500.

<p>Appeal from Circuit Court, Jefferson County; G. B. Smith, Judge.</p> <p>Action by A. J. Gandy, as administrator the estate of Joseph Gandy, against John R. Copeland for damages for the death of his intestate. From a judgment sustaining demurrer to the complaint, plaintiff appeals. of</p> <p>As originally filed the complaint contained three counts. Count 1 alleges that on the 13th day of March, 1916, plaintiff’s intestate fell into an open well uninclosed on premises owned by defendant and was drowned in the water therein contained. It is averred that decedent lost his life as a proximate consequence of the negligence of the defendant, in that defendant negligently allowed a well to remain open and uninclosed on said premises, upon which plaintiff’s decedent was a licensee. Count 2 is the same as 1, with the averment that plaintiff’s intestate lost his life as a proximate consequence of the negligent failure of the defendant tp keep a well or deep hole, into which plaintiff’s intestate fell, properly guarded or inclosed, and that the defendant knew that the premises upon which said well or hole was located, and which were owned by him and under his control, were attractive to children in that community as a playground, and that the danger to them from said open well or hole into which de- . cedent fell and lost his life was well known to defendant at and before the plaintiff’s intestate lost his life as aforesaid. Count 3 alleges that defendant was the owner of certain premises in the corporate limits of Birmingham, in Jefferson county, Ala., upon which or in which there was a deep hole or well, and plaintiff well knew that such premises were used by children in the community and neighborhood of said premises as a playground, and that children were in the habit of using such premises as a playground and that said premises' were attractive to them for such purpose, and defendant knew that the well or deep hole located on said premises -was dangerous to the children using said premises as a playground. And plaintiff avers that his son and intestate, Joseph Gandy, while using said premises as a licensee and playing on said premises as he had been in the habit of doing before that time, fell into said deep hole or well and thereby lost his life, and plaintiff avers that the death of said decedent was proximately caused by the negligence of defendant in allowing said deep hole or well to be in an uninelosed, open, and dangerous condition. Demurrers having been sustained, plaintiff amended his complaint by adding ten counts numbered from A to J, inclusive.</p> <p>Count A is as follows:</p> <p>Plaintiff, who sues as administrator of the estate of Joseph Gandy, deceased, claims of the defendant $50,000 as damages, for that heretofore, to wit, on the 14th day of March, 1916, the said defendant owned or controlled a parcel of land in the city of Birmingham, Jefferson county, Ala., and on, to wit, said date there was, and had been for a long time prior thereto, a deep well or spring with water contained therein located thereon, and plaintiff avers that said well or spring was uncovered and unprotected from people falling therein, and that said premises were attractive to children as a playground and that same were frequently used by children for that purpose, and that many people passed and repassed thereon.</p> <p>Plaintiff further avers that said premises and said well or spring were in an unsafe, dangerous condition and that said defendant knew it, or by the exercise of common judgment and prudence should have known it, and it became and was the duty of defendant to place a cover upon or protect said well or spring; and plaintiff further avers that while his intestate, a minor, to wit, nine years and three months, was flying a kite on said premises on, to wit, said date, he backed or fell into said weE or spring, and as a proximate consequence thereof he was drowned in the water therein contained.</p> <p>Plaintiff avers that .he sustained the foregoing injuries and damages as a reason of, and as a proximate consequence of, the negHgence of the defendant, in this, to wit, in negligently failing or refusing to place a cover upon or protect said well.</p> <p>Count B: Same as A down to and including the words “in the water therein contained,” and adds:</p> <p>Plaintiff avers that he sustained the foregoing injuries and damages for the reason of, and as a proximate consequence of, the defendant wantonly, willfully, or intentionally causing, permitting, or allowing said well or spring to be in an uninclosed, open, and dangerous condition on said date, as aforesaid.</p> <p>Count C: Same as count B, except it is alleged that defendant wantonly or willfully or intentionally failed or refused to place a cover upon or protect said well or spring.</p> <p>Counts D and E use the same inducement as count A, and claim a negligent failure to comply 'with section 543 of- the Code of the city of Birmingham, requiring all vessels or other thing containing standing water to be screened, and section 592, prohibiting the creation or maintenance of a nuisance.</p> <p>.Count F is the same practically as count C, as are counts G and H.</p> <p>Counts I and J are practically the same .as counts D and E.</p> <p>The other pleadings sufficiently appear from the opinion of the court.</p> <p>Under the allegations of the various counts of the complaint, it was the duty of the defendant to exercise due care to prevent injury to children attracted to his premises, and his failure to do so renders him liable in damages for injury caused thereby. 131 Ala. 584, 31 South. 561; 161 Ala. 153, 49 South. 772; 152 U. S. 262, 14 Sup. Ot. 619, 38 L. Ed. 434. The doctrine of the turntable cases is a' general rule applicable to conditions of any .kind that are dangerous and calculated to entice children, who may be too young to know their dangerous character. 100 Ark. 76, 139 S. W. 301, 38 L. R. A. (N. S.) 754; 128 Tenn. 433. 161 S. W. 997, Ann. Oas. 19150, 283; 164 Mich. 251, 129 N. W. 29, Ann. Cas. 1912B, 866; 33 Utah, 222, 93 Pae. 570, 14 L. R. A. (N. S.) 619, 126 Am. St. Rep. 828, 14 Ann. Oas. 1004; 18 Colo. App. 142, 70 Pac. 440; 41 Okl. 227, 137 Pac. 724, 51 L. R. A. (N. S.) 672,. Ann. Cas. 1915C, 290; 9Q Kan. 379, 133 Pac. 551; 133 Pac. 1040; 69 Wash. 419, 125 Pac. 147; 154 111. 141, 39 N. E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114; 11 Am. Neg. Rep. 496; 108 Ind. 530, 9 N. E. 155, 58 Am. Rep. 65; 154 Pa. 109, 26 Atl. 304; 130 La. 833, 58 South. 589, 40 L. R. A. (N. S.) 671; 66 S. W. 609; 58 Kan. 551, 50 Pac. 450, 62 Am. St. Rep. 625. There is a positive duty on every person to so use his property as to not injure others. 2 Ala. App. 652, 56 South. 830; 78 S. C. 10, 58 S. E. 960, 12 L. R. A. (N. S.) 468.</p> <p>A landowner is not liable to a trespasser or bare licensee for an injury sustained on his private premises, unless in contact with a trap or pitfall, or unless it is wantonly or intentionally done. 129 Ala. 399, 29 South. 79S; 156 Ala. 202, 47 South. 185, 130 Am. St. Rep. 76; 179 Ala. 304, 60 South. 927; 194 Ala. 78, 69 South. 431, L. R. A. 1916A, 510; 29 Oyc. 449; 194 Ala. 78, 69 South. 131, L. R. A. 1916A, 510. This rule applies to children, aS' well as adults. 116 Ala. 300, 22 South. 546, 38 L. R. A. 458, 67 Am. St. Rep. 116; 115 Cal. 345, 47 Pac. 113, 598, 56 Am. St. Rep. 106; 116 Ala. 642, 22 South. 900; 124 Ala. 113, 27 South. 422, 82 Am. St. , Rep. 153; 177 Fed. 374, 101 C. C. A. 428, 28 L. R. A. (N. S.) 98, 21 Ann. Cas. 746. The only exception to. this rule is known as the attractive nuisance doctrine, first laid down in the turntable cases; but the facts of this case do not bring it within this doctrine. 191 Ala. 646, ■'.$§ South. 154; 161 Ala. 153, 49 South. 772. Counsel discuss this doctrine with reference to the decisions in other states, and cite the following authorities, among others: 53 Mont. 254, 163 Pac. 473; 116 Mo. App. 545, 92 S. W. 734; 127 N. C. 328, 37 S. E. 468, 52 L. R. A. 359; 76 N. W. 48; 122 Ga. 853, 50 S. E. 1003. Wantonness or intentional misconduct cannot be predicated of sucb passive conduct as is bere alleged. 197 Ala. 74, 72 South. 366; 74 Fed. 350, 20 O. O. A. 436; 120 Ga. 521, 48 South. 166; 144 Oal. 473, 77 Pac. 1001, 1 Ann. Gas. 206; 66 N. X. 243; 119 Wis. 441, 96 N. W. 800.</p>

<p>1. Criminal law <&wkey;4033(2) — Failure of bill of exceptions to show proof of venue no ground for reversal where matter not raised.</p> <p>Where the question of the sufficiency of evidence to prove venue was not raised by appropriate instructions requested or given, the failure of the bill of exceptions to show the venue was proved, though it set out substantially all of the evidence,-will not work a reversal of the judgment; no compliance with circuit court rule 35 (175 Ala. xxi) being shown.</p> <p>2. Criminal law <&wkey;994( I) — Judgment entry sufficient pronouncement of sentence, though not signed.</p> <p>While Code 1907, § 5732, declares that the minutes of the court must be read each morning in open court and on adjournment must be signed by the judge, it is not necessary that each judgment entry be signed, so an entry reciting conviction of murder on verdict of. the jury, and that defendant, being asked if he had anything to say why sentence should not be pronounced upon him, said nothing, which further fixed the death penalty, is sufficient though the entry was not signed.</p>

S. Williams, Judge. Bill by Eugene Mathis against T. Allen Holman to enforce a lien for work done and materials furnished in the repair of an automobile. From a decree sustaining demurrer to the bill, complainant appeals.

B, Foster, Judge. Bill by Rosana Daniels against W. T. Davis, to quiet title to lands. From a decree overruling demurrers to the bill, the respondent appeals. The substance of the pleadings sufficiently appear from the opinion of the court.

Petition by Charlsey Sumlin for alternate writ of mandamus, directed to Hon. Hugh D. Merrill, as Judge of the Seventh Judicial Circuit, commanding him to set aside a judgment affirming the judgment of the probate court of Calhoun county sustaining the validity of a will, which was contested by petitioner, and to place said cause on the jury docket in the Calhoun circuit court for trial de novo by a jury.

Brickell, Judge. Bill by D. O. Randolph and others against J. M. Bradford and L. J. Byars for equitable redemption or statutory redemption, to dis-, affirm an attempted sale under mortgage, and to correct certain descriptions. From a decree sustaining demurrers to the bill, complainants appeal. Where equitable redemption is sought, all that is necessary is to aver a readiness and willingness to pay what the court finds due.

<p>Counties &wkey;s 161 — Surplus of special sanitary fund cannot be diverted to payment of maturing road bonds.</p> <p>Surplus in sanitary fund of Jefferson county, created under Acts 1901, p. 1722, by a levy of a special tax of one-twentieth of 1 per cent, on all property in the county, over and above current charges provided for, cannot be legally diverted by the county and applied to other uses, as payment of a maturing issue of county road borids, while the bonded principal debt of the sanitary fund remains unpaid; the statute having appropriated the surplus to payment of the bonded principal debt.</p>

L. Martin, Judge. Bill by Walker D. Hines, as Director General of Railroads, in charge of the Western Railway of Alabama, against R. E. Seibels, as administrator of tbe estate of M. L. Fort-son, deceased, to enjoin an action at law for damages for tbe death of said decedent. From a decree sustaining demurrers to tbe bill, complainant appeals.

<p>1. Statutes &wkey;j 122(1) — School Code not unconstitutional on account of title.</p> <p>The School Code (Acts 1919, p. 567), held not void as in contravention of Const. 1901, § 45, having expressed in its title one clear comprehensive subject, to provide a complete educational system for the state, followed by a complete index as to each minor subject contained in the body of the act, all related to the general subject.</p> <p>2. Statutes <&wkey;>96(l) — School Code not local act because unnecessary in certain localities.</p> <p>The School Code (Acts 1919, p. 567), is not local because at the time of its passage there were in the state certain localities without need for its operation.</p> <p>3. Schools and school districts &wkey;s46 — Legislature could constitute county board of education agency of state.</p> <p>It was entirely within the legislative power, by the School Code (Acts 1919, p. 567), to constitute a county board of education a quasi corporation and an independent agency of the state for the purposes enumerated in the Code.</p> <p>4. Schools'and school districts <&wkey;95(3) — Warrants of county board of education not negotiable instruments.</p> <p>Warrants issued by a county board of education under authority of the School Code (Acts 1919, p. 567), containing no promise to pay, but merely an acknowledgment of indebtedness of the board and an order on the county treasurer of public school funds, held not negotiable instruments.</p> <p>5. Schools and school districts &wkey;>95(2)-< County board of education may pledge tax levy by issue and sale of warrants. ’</p> <p>Special school fund collected under three-mill tax, being under control of county board of education as provided in the School Code (Acts 1919, p. 567), the board is empowered to pledge the' tax levy by 6 per cent, warrants constituting an acknowledgment of indebtedness and an order on the county treasurer of public school funds to procure cash to erect a school building for a particular district, the board being also authorized to place the warrants on the market for conversion into cash, the warrants not being bonds sought to be issued by any political subdivision of the state or county, so that Const. 1901, § 104, prohibiting local laws, section 222, relative to authorization of bond issue by a majority .vote of the county, and section 224, imposing a debt limit for municipal corporations, have no application to the ease.</p> <p>6. Schools and school districts <&wkey;95(2)— County board of education may issue warrants bearing interest payable semiannually.</p> <p>Under the School. Code (Acts 1919, p. 567), a county hoard of education has authority to issue 6 per cent, warrants for a school building on the public school funds of the county having their interest payable semiannually instead of annually.</p>

Petition by the State, on the relation of J. Q. Smith, Attorney General, for certiorari to review a ruling of the Court of Appeals, reversing a judgment of conviction in the case of Will Montgomery v. State of Alabama, S6 South. 132. The sheriff was properly denied the right to state whether or not Red Nelson was a fugitive from justice. 197 Ala. 193, 72 South. 316: 177 Ala. 12, 59 South. 171.

Petition by J. G. Bennett for certiorari to the Court of Appeals to review and revise the judgment and decision of said court rendered in the case of John Tanneyhill v. J. G. Bennett, 86 South. 108. Under Perry’s Local Acts for Jefferson County, p. 567, a written statement or complaint was not necessary .to be filed with the justice of the peace.

<p>1.Nuisance <&wkey;76 — Pleading t&wkey;8(3) — Complaint for damages from public nuisance must state facts.</p> <p>In action for ^damages for maintenance of a public nuisance, it is not enough to aver as a mere conclusion that the thing complained of is a nuisance, but to withstand appropriate demurrer the complaint should state facts sufficient to overcome the presumption that the act complained of is lawful.</p> <p>2. Municipal corporations &wkey;^693 — Permanent structure in street, though licensed, is a “public nuisance.”</p> <p>A permanent structure, placed and maintained on a public street in the absence of express statutory authority, though permitted and licensed by municipal authorities, is a “public nuisance.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Public or Common Nuisance.]</p> <p>3. Constitutional law <&wkey;63(2) — Construction of public utilities under license from municipality authorized by state not nuisance.</p> <p>The state in the exercise of its sovereign power of police, by legislative, enactment, observing constitutional limitations, may grant cities.and towns power to make use of streets for the construction and maintenance of public utilities; such structures not being per se nuisances.</p> <p>4. Constitutional law <&wkey;63 (2) — Constitution does not divest state of sovereign power to authorize municipality to .make use of streets for utilities.</p> <p>Const. 1801, §§ 220, 228, do not divest the state of its sovereign power to grant cities and towns power to make use of streets for construction and maintenance of public utilities, and do not vest power in cities and towns, but restrict or limit power of Legislature, and of cities and towns possessing statutory authority to grant such use, in the exercise of such power.</p> <p>5. Pleading <&wkey;34(4) — Complaint construed most strictly against pleader on demurrer.</p> <p>On demurrer to a complaint, its averments must be construed most strictly against the pleader.</p> <p>6. Municipal corporations &wkey;>682(l) — Use of street to move building subject to existing use by street railway.</p> <p>Uso of a public street to move a building, requiring consent of the proper municipal authorities, also requires exercise of reasonable care so'as not to interfere unreasonably with the public right, and such right so to use the street is subordinate to other lawful uses, as by a street railway, which is not under duty to remove obstructing posts or poles on demand of the mover of the building.</p> <p>7. Municipal corporations &wkey;>698 — Plaintiff, complaining of public nuisance obstructing street, entitled to recover special damages.</p> <p>If plaintiff, mover of a building through the streets, was entitled to recover at all for obstruction of street by a public nuisance causing him special damage, he was entitled to recover all such damages directly resulting to him, not suffered in common by the public generally, including delay in prosecution of work, extra expenses, loss of tools and equipment, etc.</p> <p>8. Municipal corporations <&wkey;698 — Punitive damages may be awarded for willful, refusal to abate nuisance in street after demand.</p> <p>If a nuisance really existed through obstruction of public streets by defendant street railway, and the railway, after demand made ¡ by plaintiff seeking to mov.e a building through the streets, willfully refused to abate the nuisance, punitive damages may be awarded plaintiff. ¡</p>

Petition by Jefferson County and the City of Birmingham for certiorari to the Court of Appeals to review and revise the judgment and opinion ,of said court rendered , in the case of State of Alabama v. City of Birmingham and Jefferson County, 86 South. 88. 'Counsel discuss the case cited by the Court of Appeals in the support of its opinion, and insist that it is without application and that the Court of Appeals improperly construed the statutes in question, but they cite no…

William Lindsey was convicted of violating the prohibition law, the conviction was affirmed by the Court of Appeals (86 South. 86), and he brings certiorari. The Court of Appeals was in error in saying that the testimony of the witness Haney was admissible. 97 Ala. 72. The Court of Appeals’ decision should be affirmed. 130 Ala. 66, 30 South. 413; 115 Ala. 1, 22 South. 585.

Pugh, Judge. Action by J. G. McCall against the Spurgeon & Dozier Company, a partnership, for breach of contract. Judgment for the plaintiff, and the defendant appeals.

A. Grayson, Judge. Bill by Elizabeth G. Zadek and others against the Merchants’ Bank of Mobile and others for an. accounting and for discharge from further liability of complainants, to require respondents to deliver certain property and effects, and for other relief.' From a decree sustaining demurrers to the bill, complainants appeal.

Locke, Judge. Bill by Annie B. O’Steen against Ida O’Steen to quiet title to land. From a decree dismissing the original and cross-bill, complainant appeals. The following is the agreed statement of facts: The complainant and respondent are each over the age of 21 years, respondent being a resident of Jefferson county, Ala., ^and complainant being a resident of Lauderdale county, Ala.

<p>Appeal from Circuit Court, Montgomery County; W. L. Martin, Judge.</p> <p>Bill by J. F. Darden and others, as trustees of the Pine Level Public School, against Josephine Y. Dick to quiet title to certain land claimed as school land. Judgment for complainants, and respondent appeals.</p> <p>Evidence tended to show that the land belonged to Lee Shaver, and that he executed a deed to the trustees of the public school at Pine Level, granting them title to the land so long as the same was used for school purposes, the deed containing a clause that upon the abandonment as used for school purposes the same should revert to him or to his estate. Desiring to move the school, the trustees brought this bill to quiet that title, claiming uninterrupted adverse possession' for a period of about 60 years. Josephine V. Dick claims as the sole surviving heir of Lee Shaver the right of reverter.</p> <p>Under the evidence in this case, appellant is entitled to a decree fixing her interest in the property. 138 Ala. 245, 36 South. 367; 170 Ala. 239, 54 South. 272. Counsel discuss other propositions, with citation of authority'; hut in view of the opinion it is not deemed necessary to here set them out.</p> <p>Counsel have no desire to take advantage of lack of testimony showing requisite search for lost deed. The finding of the chancellor has the effect of the verdict of the jury. 76 South. 932. Twenty years’ possession under claim of right gives rise to a rebuttable presumption of a fee-simple title. 32 Ala. 75, 70 Am. Dee. 529; 170 Ala. 209, 54 South. 213, Ann. Cas. I912C, 1093; 171 Ala. 544, 54 South. 685; 175 U. S. 509, 20 Sup. Ct. 159, 44 L. Ed. 255. It was not competent to show the legal effect of the deed. -81 Ala. 378, 2 South. 281. The deed must be shown to have been executed as the law requires. 33 Ala. 658; 190-Ala. 654, 67 South. 301.</p>

<p>Appeal from Circuit Court, Covington County; A. B. Foster, Judge.</p> <p>Motion by J. T. Jones to set aside execution sale of lands subsequently purchased by T. J. Spear. From a decree denying the motion, movant appeals.</p> <p>Motion by appellant to have set aside the sale of his lands upon the grounds of. inadequacy of price, irregularity in sale, etc., which lands were sold under execution, issued out of the Andalusia city court of law and equity on a judgment rendered against him in said court in favor of Wilder and Head. From the judgment denying the motion this appeal is prosecuted, with bill of exceptions which shows, among other things, that notice of the levy was issued and served on the defendant in execution, movant here, the property duly advertised, and, after one continuance from the original day fixed, the land was sold on May 19, 1913, and deed executed the following day, J, M. Head being the purchaser who afterwards sold the land, and after the same had passed through other hands was purchased by appellee, Spear. Spear brought ejectment suit against the movant, and afterwards this motion to set aside the sale was made, being filed in September, 1918.</p> <p>The bill of exceptions does not indicate that it contains all the evidence.</p> <p>The recitals at the beginning and end of the bill of exceptions and the manner in which the bill is framed make it appear that the bill contains substantially all the evidence. 65 Ala. 61; 69 Ala. 332; 180 Ala. 407, 61 South. 898. The requirements of sections 4104 and 4109 were not complied with. 81 Ala. 563, 8 South. 215. The case falls within provision to section 4134, Code 1907, and authorizes the setting aside of the sale. 201 Ala. 550, 78 South. 904; 17 Cyc. 1277. There was no laches shown. 106 Ala. 324; 18 South. Ill; 187 Ala. 153, 65 South. 769; 193 Ala. 211, 69 South. 14. As to inadequacy of price, see 56 Ala. 32; 58 Ala. 206; 3 Pom. p. 1670.</p> <p>The court will presume any state of the evidence to sustain the judgment. 50 South. 1036. The movant failed to act promptly. 104 Ala. 597, 18 South. .48; 74 Ala. 44; 22 Ala. 365, 58 Am. Dec. 260; 39 Ala. 131; 90 Ala. 117, 7 South. 512; 92 Ala. 585, 9 South. 605. The recitals in the deed are prima facie .evidence of the facts therein. 17 Cyc. 349.</p>

Goldsby, Judge. Bill by Agnes T. Brunnier against Charles W. Hill and others to annul a judgment in the justice court and to quash execution issued thereon.. Prom a decree dismissing the bill, complainant appeals.

S. Williams, Judge. Bill by Levy W. Eoy and another against Helen A. Dent, individually and as administratrix, and others, to remove the administration of the estate of George H. Dent from the probate to the Chancery court, and for the further administration of the estate there. From a decree overruling a demurrer to the bill, respondents appeal.

<p>Exceptions, bill of &wkey;>55(l) — Appellant on refusal to sign bill may move to establish in Supreme Court.</p> <p>Whore presiding judge refused to sign the bill as presented and claimed to be correct by appellant, the proper course is for appellant tto move to establish his bill of exceptions in the Supreme Court.</p> <p>Sayre and Brown, JJ., dissenting.</p>

L. Brewer, Judge. Bill by the State,-on the relation of its Solicitor, to condemn and sell one Hudson Super-Six automobile, alleged to have been used in transporting prohibited liquors by one M. C. Blackwell, deceased, wherein H. G. Bowling claimed the car. From a decree denying ljis claim and confiscating the car, Bowling appeals.

<p>Appeal from Circuit Court, Elmore County; Gaston Gunter, Judge.</p> <p>Bill by the Union Bank & Trust Company, as administrator, against the People’s Savings Bank of Tallassee, for an accounting and to enjoin the foreclosure of a mortgage. Decree for complainant, and respondent appeals.</p> <p>The court erred in stating an account before determining the right of complainant to an accounting. 1 Corpus Juris, 643. Even after a decree pro confesso, only a decree directing that an account be taken should be rendered. 1 Corpus Juris, 643, 644, and cases there cited. It is, irregular and erroneous to render a decree on a submission made 17 months previously.</p> <p>A chancellor may state an account. Sims, Chancery Practice, § -598; 49 Ala. 590; 52 Ala. 444. The other insistencies are not such as to require action by the court.</p>

Appeal'from Circuit Court, Bibb County; B. M. Miller, Judge. Intervention by Riddle & Ellis and others to fix a lien for attorney fees upon a fund paid into court in settlement of a pending action. From tbe decree declaring a lien, Mollie Johnson, one of tbe parties to tlie suit, appeals. Counsel discusses tbe demurrers filed, but without citation of authority. He insists that the question of nonclaim was properly presented.

Brickell, Judge. The Alabama Broom & Mattress Company began by attachment an action against the Nashville Broom & Supply Company and served garnishment upon the Huntsville Bank & Trust Company.

<p>I.Estoppel &wkey;o95 — Silence estopped lessor to claim improvements improperly constructed.</p> <p>Where lessor, who leased land for a term of years in consideration of a certain rental and the construction of a building on the land at a certain cost, stood by while the building was being constructed and remained silent, ho was estopped by his silence, after the expiration of the term, to claim that the building did not comply with the contract.</p> <p>2. Estoppel <&wkey;95 — Fraud not essential to estoppel by silence.</p> <p>Fraud is not essential in cases of equitable estoppel arising out of negligent silence, for negligent silence alone, coupled with both an opportunity and a real or apparent duty to speak, suffice for the creation of the estoppel, if the other party is induced by such silence to act to his prejudice.</p> <p>3. Contracts <&wkey; 170(1) — Practical construction by parties entitled to great weight.</p> <p>Where the parties have given a contract a practical construction by their conduct, such construction is entitled to great weight in determining its proper interpretation.</p> <p>4. Landlord and tenant <&wkey;41 — Landlord held to have acquiesced in construction of lease as to manner of constructing building.</p> <p>Where a lot was leased for a term of years in consideration of a certain rental and a construction of a building at a certain cost, and in pursuance thereof lessee constructed a building, lessor standing by and saying nothing as to the manner of construction, lessor must be held to have acquiesced in the construction of the contract as made by the lessee in constructing the building as he did, and such practical construction is entitled to great weight in determining proper interpretation of the lease.</p>

B. Foster, Judge. Action by the Owensboro Wagon Company against, the Benton Mercantile Company in assumpsit. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. A contract is not binding on one until both are bound. 5 Stew. & P. 264, 26 Am. Dec. 344; 70 Ala. 144.

B. Foster, Judge. Petition by H. S. Harkins against J. Alex Smith and J. T. Maddox, as probate judges of their respective counties, to require them to appoint a member of the board of viewers for the Fayette and Lamar drainage district. From a decree sustaining demurrers to the petition, complainant appeals. No brief reached the reporter. No brief reached the reporter.

S. 'Williams, Judge. Bill of Ray G. Irby against tbe Commercial National Bank of Eufaula for an accounting and cancellation of a mortgage debt, with cross-bill by respondent seeking to foreclose tbe said mortgage. From tbe decree rendered, complainant appeals.

B. Foster, Judge. Bill by S. A. Fryer and others against Dick Fryer and others for sale of land for division, with cross-bill by respondents. From a decree overruling demurrer to the cross-bill, complainants appeal. The deeds marked Exhibits E, F, and G do not contain a reservation to the grantors therein, and if they did dower cannot be assigned after .the lapse of 20 years. 76 Ala. 204; 138 Ala. 650, 35 South. 694; 191 Ala. 297, 6S South. 52.

W. Haralson, Judge. Ejectment by W. J. Yancey against B. Bowers, alias, etc. Judgment for plaintiff, and defendant appeals. It was agreed that T. J. Duffey owned the land in question, and each party traced to him as the common source of title. Plaintiff claimed by deed from Duffey to H. Bowers, and from H. Bowers to himself.

Action by W. O. McOarty against the First National Bank of Birmingham in assumpsit. Judgment for défendant, and plaintiff appeals. Reversed and remanded. The plaintiff sues to recover $7,290 alleged to be due him from the hank as a balance on his checking account carried with the bank. The bank paid out the amount in question upon a series of checks, drawn in the name of the plaintiff, and shown to have been forgeries.

<p>1. Intoxicating liquors <&wkey;25l — Burden of proof on claimant of automobile unlawfully ' used in transporting liquor.</p> <p>The state having established a prima facie case for the condemnation of an automobile for unlawful transportation of liquor, the burden of proof rested on- claimant reasonably to satisfy the court that she was a bona fide mortgagee, innocent of, and without fault as to, the ear’s illegal use.</p> <p>2. Intoxicating liquors <&wkey;251— Evidence held to sustain condemnation of automobile for unlawful transportation.</p> <p>In a proceeding to condemn an automobile for use in unlawfully transporting liquor, wherein -claim was made by a mortgagee, the case being peculiarly one in which the demean- or of witnesses, was of advantage in ascertaining "the truth, evidence held such that the court’s condemnation of the automobile should not be disturbed.</p> <p>3. Intoxicating liquors &wkey;>251— Evidence held insufficient to show .claimant of automobile without knowledge of unlawful use.</p> <p>In a proceeding to condemn an automobile for unlawful transportation, evidence held insufficient to show claimant mortgagee was without notice or knowledge of the automobile’s unlawful use.</p>

P. Almon, Judge. . Action by Verdo Toy Webb against the J. G. White Engineering Corporation and another for damages for personal injuries. Judgment for the defendants, and plaintiff appeals. The defendant was not a servant of the government. 96 U. S. 421, 24 D. Ed. 847; 39 Stat. at Large, 747; (D. C.) 256 Fed. 552; 141 ü. S. 543, 12 Sup.

J. Garrison, Judge. Bill by the State of Alabama for the condemnation of one Packard Automobile with claim by the Denegre Car & Truck Company and one Whitman. From a decree of condemnation claimants appeal. The bill shows that on December 13, 1919; the oar in question was seized by the sheriff, and that at the time it was seized it contained certain prohibited liquors, and that the car and the liquors were in the possession -of Willie Moore and Ernest Williams.

<p>Appeal from Circuit Court, Shelby County; E. J. Garrison, Judge.</p> <p>Bill by the State of Alabama, on relation of its solicitor, to condemn one Ford Automobile because used in the illegal transportation of prohibited liquors. The Flint Motor Car Company filed claim to the seized car, and from a judgment condemning the car, the claimant appeals.</p> <p>One Haygood was in possession of the car when seized. The claimant propounded, its claim under a conditional sales contract with Haygood, and showed that the purchase money had not been paid.</p> <p>The bone dry law does not contemplate the seizure and sale of property of those who do not assist or knowingly aid in the transportation of the prohibited beverages with vehicles belonging to them. 203 Ala. 90, 82 South. 104; Tony Gattina v. State, 203 Ala. 517, 84 South. 760.</p> <p>No brief came to the reporter.</p>

L. Martin, Judge. Bill by the Vesuvius Lumber Company and another against the Alabama Fidelity Mortgage & Bond -Company to enforce a lien for materials furnished to- the College Court Realty Company in the erection of certain buildings. From a decree granting the relief, the Alabama Fidelity Mortgage & Bond Company appeals. The facts’ sufficiently appear from the opinion of the court and from.-the former report of this case in 203 Ala. 93, 82 South. 107.

<p>1. Intoxicating liquors <&wkey;246 — “Appliance” used in the manufacture of liquors held not to extend to wagon, mule, and harness.</p> <p>Acts 1919, p. 12, § 12, providing for condemnation by the state of all “appliances” used in the manufacture of prohibited liquors, held not applicable to mule, wagon, and harness; an “appliance” being a mechanical thing, a device, or apparatus.</p> <p>v [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Appliance.]</p> <p>2. Intoxicating liquors t&wkey;25l — Wagon and mule of another used by owner of distillery not subject to condemnation.</p> <p>Acts 1919, p. 12, §'12, providing that owner of distillery shall forfeit all property used in connection with such distillery, held not to authorize condemnation of wagon and mule owned by claimant, who did not own and who had no connection with the distillery*, but who had merely permitted owner of distillery to use wagon and mule.</p>

Petition by Bobert C. Brickell, as Judge of the Eighth Judicial Circuit, for certiorari to the Court of Appeals to review and revise the judgment and decision of said court rendered in the mandamus proceeding of W. A, Gunter v. Bobert C. Brickell, as Judge.

Wilkinson, Judge. Action by the Blumberg Shoe Company, against the Phcenix Assurance Company, Limited, on a fire insurance policy and for the penalty. Judgment for the plaintiff, and the defendant appeals. Suit on a fire insurance policy, brought by appellees against appellant to recover for the loss of a stock of goods. There was judgment for the plaintiffs.

Kyle, Judge. Bill by W. B. Vaughn against Alice E. Oden, as administratrix, and others to compel the transfer of stock to be entered upon the book of the corporation and divest all apparent right to same out of Alice Oden and the estate of her decedent. From a decree granting the relief prayed, respondent Alice E. Oden appeals. There was no proof, and under section 3163, Code 1907, this was clearly error.

<p>Appeal from Circuit Court, Jefferson County; Romain Boyd, Judge.</p> <p>Action by the Blumberg Shoe Company against the American Insurance Company. From judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.</p>

W. Haralson, Judge. Oscar Fondren was indicted for murder in the first degree, convicted of murder in the second degree, and he appeals. The defendant was charged with killing one Albert Patterson. The evidence tended to show that about 5 o’clock one afternoon defendant rode up to deceased’s house, stopped under a tree, and' deceased came out to where he was.

A. Rearce, Judge. Bill by the Atlantic Coast Line Railroad Company against M. J. Patterson and A. H. May, as Sheriff, and others, to enjoin respondents, Patterson and May, from taking up or otherwise interfering with certain track of the complainant, to ascertain the proper compensation, and to perpetually enjoin interference with the track upon payment of the compensation.

C. B. Gwin, Judge. Ejection by A. J. Terrell against Neaty Kimbrell and another. Judgment for defendants, and plaintiff appeals. Both parties to the suit reside in Jefferson county, and the action was properly brought there. Section 6110, Code 1907; 139 Ala. 486, 36 South. 512; 57 Ala. 586. ■ Actions relative to land must be brought in the county where the land is located. Section 6110, Code 1007; 175 Ala. 299, 57 South. 754; 139 Ala. 482, 36 South. 512.

Bill by Thomas D. Parke and others against R. L. Bradley, as State Treasurer, Samuel W. Welch, State Health Officer, and üie Medical Association of the State of Alabama. Judgment for defendants, ana complainants appeal.

Application by John Harduval and Peter Goulas for mandamus to be directed to Hon. Hugh A. Locke, as one of the Judges of the Tenth Judicial Circuit, sitting in equity, to require him to permit petitioners to intervene in a certain cause.

Green, Jiidge. John B. Weakley and Eugene Eies sought by motion for summary judgment and by petition for mandamus to compel M. Y. Henry, as Treasurer of Jefferson County, to pay a warrant issued to them by the county board. Prom an order denying their motion for a summary judgment, as well as for a mandamus, petitioners appeal.

Greene, Judge. Petition by John B. Weakley and others for writ of mandamus against M. V. Henry, County Treasurer, etc. From an order denying a motion for the writ, petitioners appeal.

<p>Appeal from Circuit Court, Montgomery County; Wm. L. Martin, Judge.</p> <p>Action by the State of Alabama against the Republic Iron & Steel Company to recover the tonnage tax on coal and iron. Judgment for the State and defendant appeals.</p> <p>This appeal involves the constitutionality vel non of schedules 66' and 67 of section 361 of the license schedule to the Revenue Law of 1919, p. 419, and which schedules read as follows:</p> <p>“Schedule 66. Mining Goal — Every person, firm, corporation, partnership, joint-stock company or association engaged in the business of operating a coal mine in this state shall pay to the state treasurer for the use of the state a license or privilege tax, by the twentieth day of each month, for the privilege of operating such coal mine during the current month in which such payment is due, in amount equal to two cents per ton on all coal mined during the last preceding month in which such mine was operated, according to the run of' the mine, whether such mine be an open mine or an underground mine, but no such tax shall' be paid to any county in the state, providing this shall not apply to wagon mines which do not load said coal in or on railroad cars, boats or barges. Railroad rates shall govern in determining the amount of coal mined, provided, said coal is loaded in railroad cars.</p> <p>“Schedule 67. Mining Iran Ore. — Every person, firm, corporation, partnership, joint-stock company or association engaged in the business of operating an iron ore mine in this state shall pay to the state treasurer for the use of the state a license or privilege tax, by the-twentieth day of each month, for the privilege of operating such iron ore mine during the current month in which such payment is due. in amount equal to three cents per ton on all iron ore mined during the last preceding month in which such mine was operated according to the run of the mine, whether such mine be an open mine or an underground mine, but no such tax shall be paid to any county in the state. -Railroad rates shall govern in determining the amount of iron ore mined, provided said iron ore is loaded in railroad cars.”</p> <p>The points of attack made upon said -act sufficiently appear in the opinion of the court, together with an abstract of the brief of counsel, which will be set out in the official publication of the cause.</p> <p>Until they are mined, coal and iron ore are property only in a theoretical sense. Being incapable of use until they are mined, they do not become property in any real sense until they are mined, whether they be mined now or in a thousand years. The tax, being not only measured by, but predicated on, the act of converting the minerals as they lay in the ground into usable property, is inevitably on property. The tax is on nothing but the act of conversion, making personalty of realty.</p> <p>The right to own things, without the right to use them, is a conception unknown to, and therefore without name in, the law. The word “property” includes, not only the thing, but the right to use and enjoy the thing. Dorman v. State, 34 Ala. 216, 221; Eruth v. Board of Affairs, 75 W. Ya. 456, 84 S. E. 105, L. R. A. 1915C, 981, subd. 1,. opinion; City of St. Louis v. Hill, 116 Mo.. 527, 22 S. TV'. 861, 21 L. R. A. 226, 228; Western Union Co. v. State Board, 80 Ala. 273, 60 Am. Rep. 99; Ex parte Marshall (C. C.) 102 Fed. 324, 325; Ex parte Koser, 60 Cal. 210; Braceville Coal Co. v. People, 147 111. 71, 35 N. E. 62, 63, 22 L. R. A. 340, 37 Am. St. Rep. 206; Buchanan v. Warley, 245 U. S. 60, 38 Sup. Ct. 16, 62 L. Ed. 149, L. R. A. 191SC, 210, Ann. Cas. 1918A, 1201.</p> <p>Coal and ore in place, whether owned separately from the fee or as a part of it, have been the subject of property taxes in this state since 1852, or earlier. To tax minerals through years as they lay in the ground, and then to tax the act of taking them out, is to tax them twice. Code of 1852, § 391, subd. 4; Code of 1867, § 434, subd. 2; Code of 1886, § 453, subd. 1; Revenue Act of 1919, p. 284, § 5, subd. (a).</p> <p>The taxes levied by schedules 66 and 67 are taxes on property. There is no distinction in law, there being none in fact, between taxing a thing and taxing the enjoyment of, that thing. Thompson v. McLeod, 112 Miss. 383, 73 South. 193, L. R. A. 1918C, 893, Ann. Cas. 1918A, 674; Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429, 580, 582, 15 Sup. Ct. 675, 39 L. Ed. 759, S19; Id., 158 U. S. 601, 637, 15 Sup. Ct. 912, 39 L. Ed. 1108; Sims v. Parish of Jackson,' 22 La. Ann. 440; Coveil v. Young, 11 Neb. 510, 9 N. W. 694; Pittsburgh, etc., R. R. v. Ohio, 49 Ohio St. 189, 30 N. E. 435, 16 L. R. A. 380; Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678; State of Maryland v. Cumberland, etc., R. R. Co., 40 Md. 22, 51; Pittsburgh Ry. Co. v. City of Pittsburgh, 211 Pa. 479, 60 Atl. 1077, 1080; Scully v. People, 104 111. 349; State v. Lakeside Land Co., 71 Minn. 283, 73 N. W. 970; Fatjo v. Pfister, 117 Cal. 83, 48 Pae. 1012; Wheeler v. Weightman, 96 Kan.' 50, 149 Pac. 977, L. R. A. 1916A, 846; State v. Moore, 12 Cal. 56; State v. Bengsch, 170 Mo. 81, 70 S. W. 710; In re Page, 60 Kan. 842, 58 Pac. 478, 47 L. R. A. 68.</p> <p>The nature of the tax is to be determined by its effect. The name given by the Legislature is of no consequence. Crew Levick Co. v. Penn., 245 U. S. 292, 294, 38 Sup. Ct. 126, 62 L. Ed. 295; American Mfg. Co. v. St. Louis, 250 U. S. 463, 39 Sup. Ct. 522, 63 L. Ed. 1084; State v. Parker, 5 Ala. App. 240, 59 South. 741; Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429, 15 Sup. Ct. 673, 39 L. Ed. 759; Pittsburgh Ry. v. Pittsburgh, 211 Pa. 479, 60 Atl. 1077; Fatjo v. Pfister, 117 Cal. 83, 48 Pac. 1012; State v. Bengsch, 170 Mo. 81, 70 S. W. 710.</p> <p>A discriminatory excise tax is offensive both to the state and federal Constitutions. Ala. Consolidated Co. v. Herzberg, 177 Ala. 248, 59 South. 305; Judson on Taxation (1st Ed.) pp. 258-264; Birminghanf-Tuscaloosa Ry. v. Carpenter, 194 Ala. 141, 69 South. 626; Board of Commissioners of Mobile v. Orr, 181 Ala. 308, 61 South. 920, 45 L. R. A. (N. S.) 575.</p> <p>In levying the tax on those who mine coal and load it into railroad cars, and not on those who mine coal and load it into wagons, schedule 66 is arbitrary and void. Harding v. People, 160 111. 459, 43 N. E. 624, 32 L. R. A. 445, 52 Am. St. Rep. 344; Cotting v. Godard, 1S3 U. S. 79, 102-108, 22 Sup. Ct. 30, 46 L. Ed. 92; Adams v. Miss. Lumber Co., 84 Miss. 23, 36 South. 68; In re Yot Sang (D. C.) 75 Fed. 983; Birmingham-Tuscaloosa Ry. v. Carpenter, 194 Ala. 141, 69 South. 626; Commonwealth of Pennsylvania v. Alden Coal Co., 251 Pa. 134, 96 Atl. 246, L. R. A. 1916F, 154, and note; City Council of Montgomery v. Kelly, 142 Ala. 552, 38 South. 67, 70 L. R. A. 209, 110 Am. St. Rep. 43; Ala. Consolidated Co. v. Herzberg, 177 Ala. 248, 59 South. 305; Minn. v. Wagener, 69 Minn. 206, 72 N. W. 67, 38 L. R. A. 677, 65 Am. St. Rep. 565; Commonwealth v. Clark, 195 Pa. 634, 46 Atl. 286, 57 L. R. A. 348, 86 Am. St. Rep. 694.</p> <p>The right to own and enjoy property is not a privilege conferred by or derived from Constitutions or the statutes, but is a fundamental right, existing at common law as a part of our free institutions. Jones v. N., C. & St. L. R. R., 141 Ala. 393, 394, 37 South. 677; Cooley, Const. Lim. (6th Ed.) p. 49; 6 R. O. L. top page 18; Thompson v. Kreutzer, 112 Miss. 165, 72 South., 891; City of Lexington v. Thompson, 113 Ky. 540, 68 S. W. 477, 57 L. R. A. 775, 776, 101 Am. St. Rep. 361; State V. Denny, 118 Ind. 449, 21 N. E. 274, 4 L. R. A. 65, 77.</p> <p>The applicable provisions of the Alabama Constitution are sections 35, 211, 214, and 217.</p> <p>(a) A tax on property, or on taxable property, is a tax assessable and payable solely on account of the ownership, use, or disposition of property (the essential attributes of the right of property), which leaves no opportunity or election on the part of the owner or possessor of the property to avoid the tax, except upon the abandonment of the property as such, and which is not levied in the exercise of the police power.</p> <p>“The stamp duty is contingent on the happening of the event of sale, and the element of absolute and unavoidable demand is lacking.” Thomas v. United States, 192 U. S. 363, 24 Sup. Ct. 305, 48 L. Ed. 481.</p> <p>(b) Section 211 of the Constitution permits no tax on property of any kind with reference to its yield, or by any standard or measure, except its value. Board for Assessment v. Ala. Central R. R., 59 Ala. 551; Western Union Tel. Co. v. State Board of Assessment, 80 Ala. 273, 60 Am. Rep. 99; Sims v. Parish of Jackson, 22 La. Ann. 440; 27 Amer. and Eng. Ency. of Law, 605; 37 Oyc. 760.</p> <p>The exemption of wagon mines destroys the tax under schedule 66. Vines v. State, 67 Ala. 73.</p> <p>The statute is highly penal, and as such will be strictly construed. See sections 417 to 421 of the Revenue Act.</p> <p>In addition, as a tax measure it will be construed against the state. State v. Roden Coal Co., 197 Ala. 417, 73 South. 5; Ex parte Birmingham, 201 Ala. 641, 79 South. 113; Crocker v. Malley, 249 U. S. 223, 39 Sup. Ct. 270, 63 L. Ed. 573, 2 A. L. R. 1601; Gould v. Gould, 245 U. S. .151, 38 Sup. Ct. 53, 62 L. Ed. 211.</p> <p>Mining coal or ore is an incident to the business of mining and disposing of coal and ore, and patently mining coal and ore is merely one feature of defendant’s principal business of making pig iron. Defendant is taxed, without reference to its property taxes, on its franchises and by other excise taxes. Occupation taxes cannot be levied on a business as a whole and then on its incidents. Gambill v. Endrieh, 143 Ala. 509, 510, 39 South. 297; Tuscaloosa v. I-Iolczstein, 134 Ala. 636, 32 South. 1007; Mefford v. Sheffield, 148 Ala. 539, 41 South. 970; Southern Express Co. v. Rose, 124 Ga. 581, 53 S. E. 185, 5 L. R. A. (N. S.) 625. See note on page 619.</p> <p>The mining of its own coal and ore by defendant, for use in its business of making and selling pig iron, is not an occupation or business; not more so than is defendant’s transportation of these raw materials to the furnace, nor more so than any of its furnace operations. An occupation, within the meaning of statutes levying occupation taxes, involves the element of receipt of money as the result of which the activity is taxed. It must be levied on that which is' in fact one’s occupation. Texas Co. v. Amos (Fla.) 81 South. 471; Watts v. Com., 106 Va. 851, 56 S. E. 223, Ann. Cas. 1914B, 738; Lane v. Rowan County, 139 N. C. 443, 52 S. E. 140; State v. Anniston Rqlling Mill, 125 Ala. 121, 27 South. 921; Love v. State, 31 Tex. Cr. R. 469, 20 S. W. 978; Carter v. State, 44 Ala. 29; Perkins v. State, 50 Ala. 157.</p> <p>The state takes the position that the taxes in question are not property taxes, but special taxes, and concedes their unconstitutionality if they are property taxes. - That they are not property taxes they cite 183 Ky. 84, 209 S. W. 19; 125 Ky. 402, 101 S. W. 321; 217 U. S. 563, 30 Sup. Ct. 578, 54 L. Ed. 883; 40 S. C. 221, 18 S. E. 853; (D. C.) 249 Fed. 172.</p> <p>The tax is not discriminatory. 251 Pa. 134, 96 Atl. 246, L. R. A. 1916F, 154; 183 Ky. 84, 209 S. W. 19 ; 240 Ü. S. 369, 36 Sup. Ct. 379, 60 L. Ed. 691; 247 U. S. 132, 38 Sup. Ct. 444, 62 L. Ed. 1025; 185 U. S. 364, 22 Sup. Ct. 673, 46 L., Ed. 949; 96 U. S. 97, 24 L. Ed. 616; 220 U. S. 61, 31 Sup. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160; 229 U. S. 322, 33 Sup. Ct. 833, 57 L. Ed. 1206; 50 W. Va. 533, 40 S. E. 514; 64 Neb. 342, 89 N. W. 1053, 57 L. R. A. 922; 80 Ala. 273; 188 Ala. 487, 66 South. 169, L..R. A. 1915A, 185, Ann. Cas. 1916E, 752.</p> <p>The exemption of wagon mines has not the effect to render the act void.</p> <p>185 U. S. 203, 22 Sup. Ct. 616, 46 L. Ed. 872; 186 111. 134, 57 N. E. 880, 56 L. R. A. 266. See, also, 121 Ala. 28, 25 South. 622; 155 Ala. 149, 46 South. 237; 147 Ala. 682, 39 South. 353; 148 Ala. 539, 41 South. 970; 94 Ala1. 156, 10 South. 5345 Ala. App. 231, 59 South. 741; 53 Ála. 510; 146 Ala. 177, 41 South. 465; 120 Ala. 623, 24 South. 952; 151 Ala. 473, 44 South. 113, 12 L. R. A. (N. S,) 568, 125 Am. St. Rep. 33; 79 Ala. 1; 118 Ala. 143, 22 South. 627, 72 Am. St. Rep. 143; 151 Ala. 469, 44 South. 388, 125 Am. St. Rep. 31.</p>

Loyd Tate, Judge. Duff Walker was convicted of murder in the first degree, and be appeals. Tbe court erred relative to tbe venire. Acts 1919, p. 1041; 172 Ala. 418, 55 South. 601; 186 Ala. 9, 65 South. 56; 185 Ala.. 20, 64 South. 80; 16 Ala. App. 303, 77 South-456; 183 Ala. 36, 62 South. 800 ; 5 Ala. App. 178, 59 South. 333; 171 Ala. 38, 55 South. 118. The supernumerary judge was without authority to hold the court. Sections 142-144, 161, Const. 1901.

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

<p>1. Homicide <&wkey;l69(l) — Irrelevant evidence of finding of whisky held erroneous.</p> <p>In a prosecution for murder of officers who-had gone to arrest defendant, evidence tending, to show that the officers had found whisky in. the woods only a short time before they went to the place where defendant lived was erroneously received and must be regarded as-harmful.</p> <p>2. Criminal law &wkey;>363 — Homicide <&wkey;!84 — State entitled to show that officer was proceeding to arrest defendant when killed, and all res gestee of occasion.</p> <p>In a prosecution for the murder of officers who had gone to arrest the defendant, where it was a question for the jury whether deceased or the officers had brought on the shooting, and whether defendant and his brother began shooting before the officers had a chance to-declare themselves and their authority, the state was entitled to show officers’ authority to justify their presence on the defendant’s premises and to prove the res geste of all that happened,on such occasion, including physical canse and manner and extent of injuries suffered by any of the sheriff’s party.</p> <p>3. Criminal law <&wkey;720(5)— Statement of prosecuting attorney calculated to injure defendant as witness error.</p> <p>Where defendant, prosecuted for murder of' an officer, denied a statement attributed to him, the solicitor’s reply, “I thought you would,” which was not made at time or place of the argument to the jury, was improper, as directed against the witness and calculated to injure the credit of the witness by placing it against that of the prosecuting attorney.</p> <p>4. Criminal law <&wkey;363 — Ail said and done when deceased was killed while' making an arrest held res gestee.</p> <p>In a prosecution for murder of' an officer who had gone to arrest defendant and his brother, evidence of all that was said and done at the time of the difficulty, whether by defendant, his brother, or the officers, was within the narrowest definition of res geste, and, being contemporaneous with the main fact and illustrative of its character and of defendant’s connection with it, was admissible, and it was not necessary to show as an independent fact a community of design between 'defendant and his brother; that question being for the jury.</p>

<p>1. Innkeepers <&wkey;>IO — Complaint in action for death of guest because fire escapes not “located” securely held sufficient.</p> <p>In an action for the death of plaintiff’s intestate through the burning of a hotel owned by defendant, a complaint based on the violation of defendant’s duty, under Code 1907, § 7095, to have “securely fixed and conveniently arranged” good and sufficient fire escapes for each story of the building, was not defective because it charged that defendant’s hotel was not equipped with good and sufficient fire escapes “located securely and conveniently arranged”; “located” meaning fixed.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Locate.]</p> <p>2. Innkeepers &wkey;s 10 — Sufficiency of fire escapes held for jury.</p> <p>In such action, whether one fire escape for the building constituted a negligent or improper equipment held a question of fact for the jury,</p> <p>3. Pleading &wkey;>7— Inferences must be charged where facts alleged are equivocal.</p> <p>When facts charged are equivocal, that is, when they reasonably permit, but do not demand, the inference on which the pleader relies, it is necessary tiiat he should color the facts by drawing the inference in question and charging it as a fact.</p> <p>4. Pleading <&wkey; 193(1) — Trial <&wkey; 143 — Whether fact inferred is supported by facts alleged question for court on demurrer, but whether inference is' supported is question for jury.</p> <p>Where the pleader justifiably charges an inference as a fact, whether the facts stated may support the inference charged is a question of law for the court and may be tested on demurrer, but whether they do support the inference is a question of fact for the jury.</p> <p>5. Pleading <&wkey;l92(3) — Charge of negligence not defective as setting up negligence as a matter of law.</p> <p>In an action by an administratrix for the death of her intestate by the burning of defendant’s hotel, a complaint charging that there was only one fire escape 200 feet from the room occupied by intestate, “from which he was cut off by the fire, which was negligence,” held not demurrable as setting up as a matter of law that one fire escape was negligent or improper equipment.</p> <p>6. Pleading <&wkey;l92(3) — Complaint in death action not demurrable as setting up negligence as matter of law.</p> <p>A complaint in an action for the death of a hotel guest by the burning of the hotel, a complaint charging that the hotel was equipped with but one fire escape, which was not in compliance with Code 1907, .§ 7095, held not demurrable as setting up negligence as a matter of law.</p> <p>7. Innkeepers &wkey;> 10 — Copiplaint not demurrable as failing to negative sufficient equipment of fire ladders.</p> <p>In an action for the death of a hotel guest through the burning of the hotel, a complaint charging that the building had only one fire escape held not demurrable as conceding that it might have been equipped with abundant fire ladders.</p> <p>8. Innkeepers <&wkey;)0 — “Fire escapes” include fire ladders.</p> <p>A fire ladder is a fire escape, and “fire escapes”, used in complaint for death of a person in a hotel fire, include fire ladders of such sort and location as to permit safe descent Of persons caught in a building on fire.</p> <p>9. Witnesses <&wkey;388 (2) — Contradiction of deposition held properly excluded, where no foundation was laid. ,</p> <p>In an action for the death of a hotel guest ,through the burning of the. hotel, a question to a witness who had attempted to rescue the decedent as to whether a third person had not asked him what the hotel clerk had said as to the number of the room decedent was in, held properly excluded, where it would contradict a statement by the third person in his deposition as a witness; no predicate having been laid therefor.</p> <p>10. Appeal and error <&wkey;971 (6)— Allowance or rejection of questions to test memory of witness in sound discretion of court.</p> <p>Allowance or rejection of questions to test the memory of the witness as to events which he has narrated rests in the sound discretion of the trial court, the exercise of which will not be reviewed unless clearly oppressive and prejudicial.</p> <p>11. Innkeepers <&wkey;IO — Nature of building material held relevant as to sufficiency of fire escapes.</p> <p>In an action for the death of a hotel guest through the burning of the hotel, based on the alleged insufficiency of fire escapes, the structure of the hotel and the nature of its building material held relevant to the sufficiency of the fire escapes provided.</p> <p>12. Innkeepers <&wkey; 10 — Whether statutory duty of maintaining fire escapes breached held for jury.</p> <p>Whether the evidence established a breach of the defendant’s duty, under Code 1907, § 7095, to provide adequate fire escapes, held for the jury.</p> <p>13. Innkeepers <&wkey; 10 — Breach of duty to warn guest of fire held for jury under evidence.</p> <p>Whether evidence established a breach by the owner of the hotel of the common-law duty to seasonably warn the guest held for the jury.</p> <p>14. Innkeepers &wkey;>IO — Failure to select other means of escape not a defense where fire escapes inadequate.</p> <p>If the hotel keeper had breached his statutory duty to provide adequate fire escapes, he cannot be heard to say that his dereliction was not the cause of the guest’s death, because of guest’s failure to intelligently select and resort to other means of escape.</p> <p>15. Innkeepers t&wkey;5 — Balcony or interior staircase not “fire escape,” within statute.</p> <p>Neither a balcony nor an interior staircase in a hotel can be regarded as a “fire escape,” within Code 1907, § 7095.</p> <p>16. Innkeepers <&wkey; 10 — Evidence held to show that failure to warn guest of fire was proximate cause of death.</p> <p>Evidence held to sustain a finding that the hotel clerk’s failure to warn the deceased was the proximate cause of his death.</p> <p>17. Innkeepers <&wkey;>IO — Variance in action for wrongful death of guest held immaterial.</p> <p>Where the complaint alleged that intestate came to his death while in bed asleep, and the evidence showed that he had risen from his bed and left his room to escape the fire, the variance was immaterial, as not affecting defendant’s duty to the guest.</p> <p>18. Trial &wkey;> 169 — Advantage of variance cannot be taken by affirmative charge.</p> <p>Advantage cannot be taken of a,supposed variance merely by a request for a general affirmative charge, where a permissible amendment of the complaint would remove the variance.</p> <p>19. Trial <&wkey;251 (8) — Instruction based on con: tributory negligence properly refused where not pleaded.</p> <p>In an action against a hotel keeper for the death of a guest through the burning of the hotel, a charge based upon contributory negligence of decedent held properly refused, where such negligence wag not pleaded.</p> <p>20. Trial <&wkey;240, 244(4) — Instruction held properly refused as argumentative and as singling out evidence.</p> <p>In an action against a hotel keeper for the death of a guest through the burning of a hotel, an instruction that the fact that decedent was registered as a guest did1 not of itself rest the presumption that defendant or his servants knew he was asleep or occupying the room when the fire broke out held properly refused as argumentative and as singling out evidence.</p> <p>21. Trial <&wkey;296(3) — Instruction defining due care held harmless error when considered with other instructions.</p> <p>In an action against an innkeeper for the death of a guest through the burning of a hotel, an instruction that if plaintiff’s intestate was in danger of losing his life due care and diligence required defendant to do everything that gave reasonable promise of the preservation of his life, regardless of difficulties, held not reversible error when considered with other instructions.</p> <p>22. Innkeepers <5&wkey;IO — Duty to warn guest need not be performed regardless of all difficulties. /</p> <p>An instruction in such action that the duty to warn one who is in peril of his life must be performed regardless of all difficulties held erroneous.</p> <p>23. death <&wkey;99 (4)— $15,000 not excessive for death of railway conductor.</p> <p>In a wife’s action against an innkeeper for the death of her husband, who was a railway conductor, a verdict of $15,000 held not excessive.</p> <p>Anderson, O. J., and McClellan and Thomas, JJ., dissenting.</p>

P. Almon, Judge. Proceedings by the United States of America against Judith Goodloe and others and' Mary Steele Figures and others, respectively, for the condemnation of certain lands, consolidated. From the judgment rendered, the United States appeals.

Goldsby, Judge. Bill by Eugene Thames against Thomas M. Stevens and others, as trustees of the University . of Alabama and the officials of the University, to enjoin /the removal to Tuscaloosa from Mobile of any of the fixtures, paraphernalia, or other property of the Mobile Medical College. From a decree overruling demurrers to the bill, respondents appeal.

M. Miller, Judge. Bill by W. C. Grimes against Eliasberg Bros. Mercantile Company to enjoin or restrain from certifying to the state tax officials the salary earned by said Grimes as an employe of respondent. From a decree granting the relief prayed, respondents appeal.

<p>Certiorari to Court of Appeals.</p> <p>Charlie Lundy was convicted of murder, his conviction affirmed by the Court of Appeals (85 South. 819), and he petitions for certiorari.</p>

B. Smith, Judge. Action by Mrs. Jennie B. Hughes against the Locomotive Engineers Mutual Life & Accident Association upon a benefit certificate issued upon the life of L. D. Ponda, in which she was named as beneficiary. Judgment for plaintiff, and defendant appeals.

L. Herzberg, Judge. Petition of Millie Miller to set aside certain property to her as exempt, as the widow of James Miller, with contest by John Henry Thompson, a nephew and heir of the deceased.

Application by the Alabama Great Southern Railroad for certiorari to the Court of Appeals to review and revise the judgment of said court rendered in the case of Alabama Great Southern Railroad v. Ber F. Hunt, 86 South. 97.

L. Sowell, Judge. Action by the Black Diamond Coal Mining 'Company against the Jones Coal Company for breach of contract to deliver coal. Judgment for the defendant, and the plaintiff appeals. The court erred in directing a verdict for the defendant, for it is not necessary under the facts in this case that the agent of the ■corporation should have had written authority to execute the contract. 202 Ala. 552, 81 South. 54; 84 Ala. 570, 3 South. 286, 5 Am.

P. Almon, Judge. Action by Jeff Huckelbey against the Corona Coal Company and another, for damages for personal injury. From judgment for plaintiff, the named defendant appeals. The cause was tried upon count A, and the general issue joined thereon.

Locke, Judge. Bill for injunction by the Mudd & Colley Amusement Company against the Alcazar Amusement Company and others.

<p>1. Carriers <&wkey;3!4(4)— Charge of “gross and wanton negligence” held to impute a willingness to inflict injury.</p> <p>Complaint, charging conductor with, “gross and wanton negligence,” held to inpute to'him a willingness to inflict injury, or a willfulness in pursuing a course of conduct which would naturally or probably result in injury, or an attempt to perpetrate wrong.</p> <p>[Ed. Note. — For other definitions,, see Words and Phrases, First and Second Series, Gross Negligence; Wanton Negligence.]</p> <p>2. Carriers &wkey;>284( I) — Carrier’s obligation to transport insane persons stated.</p> <p>_ A carrier cannot absolutely refuse transportation to insane persons, but has the right toi require that such a passenger be in charge of a competent attendant, and, if necessary to the reasonable safety and comfort of other passengers, to remove such passenger from the train at the first station where he may be properly cared for.</p> <p>3. Carriers <&wkey;>284(l) — Must use high degree of care to prevent insane passenger from harming other passengers.</p> <p>A carrier transporting an insane passenger has the duty of exercising a high degree of care to prevent such passenger from harming other passengers.</p> <p>4. Carriers <&wkey;3l5(4) — Charge of gross and wanton negligence as to passenger must be proved.</p> <p>Passenger,- charging conductor with gross and wanton negligence, must prove such negligence, and cannot recover on proof of simple negligence.</p> <p>5. Carriers <&wkey;>284(l) — Not liable for conduct and abusive language of insane passenger if conductor endeavored to protect another passenger.</p> <p>A railroad was not liable for abusive and immodest conduct and language of insane negro woman passenger, if its conductor, charged with gross and wanton negligence in failing to protect another passenger therefrom, acting in good faith, did his best to extend such protection as was reasonably in his power.</p> <p>6. Carriers <&wkey;320 (6) — Whether conductor did his best to protect a passenger from insane passenger held for jury.</p> <p>Whether a conductor in good faith, did his best, under the circumstances, to- protect a passenger from another insane passenger, held for the jury.</p> <p>7. Carriers <@=>321 (4) — Refusal to instruct that it was carrier’s duty to accept insane negro as passenger held reversible error.</p> <p>In action by passenger for injuries caused by abusive manner, language, and immodest conduct' of an insane negro passenger in same car, refusal to instruct that it was the carrier’s duty to accept the negro 'as a passenger held reversible error.</p> <p>8. Carriers <&wkey;284(I) — Railroad cannot shift danger from insane passenger from passengers in coach to others equally entitled to protection.</p> <p>While it is a railroad’s duty to take every reasonable precaution to prevent an insane passenger from annoying or injuring other passengers, providing another available place for her, or putting her off if necessary, it has no ri§jht to shift' the annoyance or prospective danger of her presence from passengers in the coach to others equally entitled to protection.</p> <p>9. Carriers <&wkey;3l8(I)— Evidence held not to show conductor negligently failed to protect from insane passenger.</p> <p>In passenger’s action against railroad for injuries caused by" abusive and immodest con. duct and language of insane negro passenger, in which conductor was charged with gross and wanton negligence, evidence held insufficient to show that conductor had negligently failed or refused to protect plaintiff from such abuse when it was reasonably possible fo-r him to have done. so.</p>

M. Miller, Judge. Detinue by the Reid Lumber Company against C. M. Davis. Judgment for plaintiff, and the defendant appeals. Transferred from Court of Appeals, under section 6, p. 449, Acts 1911. Action was in Code form for certain appurtenance connected with the sawmilling outfit. Complaint was filed October 9, 1917, and claimed damages for the value of the hire and use of said machinery from October 8, 1917.

C. B. Gwin, Judge. Action by Mary and Ike Holly against J. A. Jenkins, in trover and conversion. Judgment for the plaintiffs, and defendant appeals. Transferred from Court of Appeals under section 6, p. 450, Acts 1911. Count 1 is for wrongfully taking the following goods and chattels, the property of the plaintiffs, and count 4 is for the conversion of the following goods and chattels, the property of the plaintiffs (a list of which is set out in the complaint).

A. Sharpe, Judge. Action by D. F. Green, the State Superintendent of Banks, for the Jefferson County Bank in liquidation, against G. R. Harsh, upon a promissory note. Judgment for the defendant, and plaintiff appeals. The action is primarily upon a promissory note for $12,500, made by the defendant, payable to his order, and by him indorsed in blank and discounted and acquired in due course of business by the Jefferson County Bank from the original holder.

A. Pearce, Judge. Bill by Susie Outlaw and others against Mrs. A. E. Sollie, to enforce a decree pf the chancery court of Henry county, Ala. From a decree overruling the demurrers to the bill respondent appeals.

W. Harral, Judge. Bill by J. B. Bisbop against W. S. Fortson and .others to set aside a sale of land under mortgage foreclosure, to redeem, and for other relief. From a decree for complainant respondents appeal. The court erred in decreeing that the complainant was entitled to credit for the amount due on the Pope mortgage, as there was no legal evidence that there was such a mortgage. 81 Ala. 378, 2 South. 281; 108 Ala. 561, 18 South. 561.

P. Almon, Judge. Action by George O. Cabapiss against Walker D. Hines, Director General of Railroads, operating the Southern Railway Company, for damages for failure to deliver certain baggage. Judgment for plaintiff, and defendant appeals.

B. Foster, Judge. Assumpsit by the City of Enterprise against'J. Rawls for the collection of _ city taxes. Judgment for the defendant, and the plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449. The facts sufficiently appear from the opinion of the court.

Clair County ; W. J. Martin, Judge. Action by Buel Taylor against the Southern Railway Company, for damages for killing a cow. Judgment for the plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 460, Acts 1911. Counsel discuss the errors assigned, but without citation of authority. No brief reached the reporter.

<p>Appeal from Circuit Court, Franklin County; C. P. Almon, Judge.</p> <p>Action by Fred Howard Dennis, pro ami, against the Sheffield Iron Corporation for damages for personal injuries while at work in a mine of the defendant corporation. Judgment for the plaintiff, and defendant appeals.</p> <p>Count 1 of the complaint alleges that defendant was operating an iron ore mine, and in and as a part of its operation it used an iron ore washer, and plaintiff was employed by the defendant as a laborer at its said mine at said washer, and was caught and injured by said washer; that he received his injuries and hurts as a proximate of the wrongful conduct of the defendant or its servants and agents while acting in the line and scope of their employment, in that the said defendant or its servants or its agents while engaged in the line and scope of their employment did wrongfully employ the plaintiff, then a minor, under the age of 16 years, to work or labor in or about the defendant’s mine in violation of law. Charge 3 is as follows: “If the jury believed the evidence, they may find for the defendant.” It appears from the evidence that defendant was conducting an ore mine, and that plaintiff applied to the defendant for employment and was asked how old he was. He stated that he was over 16, and was told that before being employed he must have a statement from his parents as to his age and the consent from them for his employment. He later returned with these statements and consent in the form of an affidavit purporting to have been signed by both his parents and attested by a justice of the peace. The other facts sufficiently appear.</p> <p>The mine at which plaintiff was working is not the kind of mine referred to in Gen. Acts 1915, p. 193, and hence the affirmative charge should have been given as to count 1. 199 Ala. 132, 74 South. 230. The court erred in failing to admit the written statement, and in refusing to permit the witness Thompson to testify as to its execution. 179 Ala. 186, 60 South. 583; 16 Ala. App. 665, 81 South. 185; 203 Ala. 131, 82 South. 161.</p> <p>Acts 1915, p. 193, amending section 1035, Code 1907, has been given a broad and liberal interpretation and covers this case. 186 Ala. 192, 65 South. 177. Ann. Cas. 1916E, 99; 199 Ala. 132, 74 South. 230; 16 Ala. App. 665, 81 South. 185; 203 Ala. 131, 82 South. 161. The question is not what the employer believed about the age of the child, but how old the child was. 179 Ala. 186, 60 South. 583.</p>

Wilkinson, Judge. Assumpsit by the Banner Cone Company against the Jersey Ice Cream Company. Judgment for plaintiff, and defendant appeals. Appeal transferred from Court of Appeals under Acts 1911, p. 450, § 6.

J. -Curtis, Judge. Action for damages for libel and slander by John Lillich against tbe Choctaw Coal & Mining Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeal?, under section 6, p. 449, Acts 1911. The complaint contains six counts, the first, fifth, and sixth of which went to the jury. Count 1 alleges defamation of plaintiff by defendant corporation by charging him with being “a slacker” in the alternative by written or spoken words.

<p>1. Appeal and error &wkey;>l078(3) — Grounds ot demurrer, not argued, abandoned.</p> <p>Where defendant, who has assigned the overruling of demurrer to several counts as error, merely argues the overruling of demurrer to one of the counts, he abandons the grounds of demurrer directed to the other counts.</p> <p>2. Railroads <&wkey;344(5) — Count held to charge negligence.</p> <p>A count charging negligence of railroad employ és in permitting a train to run against an automobile and cause driver’s injuries held sufficient as against demurrer.</p> <p>3. Railroads t&wkey;344(5)— Count held to charge negligent failure to keep lookout.</p> <p>A count alleging that train employes negligently failed to keep a vigilant lookout for automobiles crossing the track, and that as a proximate result of such negligence the train ran against "plaintiff’s automobile, held sufficient as against demurrer.</p> <p>4. Railroads &wkey;>327 (2) — Automobile driver, failing to look, held guilty of contributory negligence.</p> <p>An automobile driver, who could have seen approaching train in time to have avoided collision, if he had looked, and who failed to stop and look before going on the track, held negligent as a matter of law.</p> <p>5. Railroads i&wkey;335(5) — Contributory negligence, proximateiy causing injury to automobile driver, precludes recovery.</p> <p>Automobile driver cannot recover for injuries in a collision, though the railroad was guilty of simple initial negligence which proximateiy caused the injury, if he was guilty of breach of duty in failing to stop; look, and listen before proceeding to the point of danger, which contributed to or was a proximate cause of injury.</p>

'Appeal from Circuit Court, Morgan County; O. Kyle, Judge. Action by Ellen Bartee against the Louisville & Nashville Railroad for damages for trespass. Judgment for the plaintiff, and the defendant appeals. Count 2 is as follows: Count 2.

<p>1. Wills &wkey;>524(8) — Devise of remainder held to class, and not limited to children living at termination of life estate.</p> <p>Where a testator devised property in trust to one for life, and the remainder and reversionary interest to his son, in trust for the use of the son’s heirs by a second wife, the bequest was to one of a class, which might be enlarged by the birth of other children at any time during the life of the son and his second wife, and might be restricted by death of children without heirs, and hence was not limited to those children living at the termination of the life estate.</p> <p>2. Trusts <&wkey;l3l — Statute will not execute springing or shifting use.</p> <p>Where testator devised land in trust to one for life, and the residuary interest in the heirs of trustee, etc., the devise being to a class • not established until the death of trustee, etc., was a springing or shifting use, which the statute of uses (Code 1907, § 3408), will not. execute.</p> <p>3. Trusts &wkey;>l93i/2 — Court of equity may direct sale.</p> <p>In exercise of its general power, a court of equity may direct sale of trust property and reinvestment, though not otherwise authorized, if the conditions are such that it is manifestly to the interest of the trust estate.</p> <p>4. Trusts &wkey;>203 — Sale under decree for reinvestment binding on later born beneficiaries of class.</p> <p>Where all of the living beneficiaries who might take under a devise in trust to a class were made parties to a proceeding to sell for reinvestment, a sale made under judicial decree is binding on any beneficiary who may be added to the class by birth, etc.</p> <p>5. Trusts &wkey;>l93¡/2 — Sale of trust property for reinvestment of proceeds proper.</p> <p>Where property devised in trust had depreciated in value, so that the building was condemned, and it was subject to tax liens, which the trustee could not discharge, it was proper for a court of equity to direct sale of the trust property for reinvestment.</p>

A. Sharpe, Judge. Action by Joseph V. Vaughn, Jr., pro ami, against F. M. Jackson, Jr., for damages for injuries sustained in an automobile collision. Judgment for the plaintiff, and defendant appeals.

P. Almon, Judge. Action by William Henry v. J. K. P. .Thorn for damages for maliciously and without probable cause causing plaintiff’s arrest. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Plaintiff, who was a justice of the peace in Colbert county, was arrested on a charge of petit larceny on a warrant issued by Judge Hargett, judge of the county court, based upon an affidavit made by the defendant.

Wilkinson, Judge. Action by A. G. Justice against the Birmingham Waterworks Company for damages for wrongfully cutting off plaintiff’s water service. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 450, Acts 1911. Affirmed. On November 11, 1919, judgment was rendered on verdict for plaintiff for $500. Defendant moved for1 a new trial on various grounds, among others that the verdict was excessive.

Goldsby, Judge. Election contest by Joseph G. Bowen against William H. Holcombe, Jr. From a decree for contestee, contestant appeals. The contestant relies on the corrupt practice act. Acts 1915, p. 250 et seq. The circuit court has jurisdiction of the contest. Sections 470, 471, as amended by Acts 1911, p. 195; 203 Ala. 546, 84 South. 740. The court was therefore in error in holding the contestant was not entitled to contest. Security for cost is jurisdictional.

<p>Landlord and tenant <&wkey;260 — Judgment for defendant proper, where property levied on was not subject to lien.</p> <p>Judgment was proper for defendant in a suit by attachment to enforce a landlord’s lien, where the evidence failed to show that the corn and other provender levied on was subject to a landlord’s lien.</p>

<p>I.Mortgages <&wkey;>l93 — One whose right of redemption h?*d expired could not waive forfeiture of timber contract.</p> <p>Where ownership of lands was subject to a contractual right to redemption or purchase in favor of another, who sold timber on the lands and declared a forfeiture of timber contract prior to expiration of period of redemption, he could not, subsequent to 'expiration of such period, reinstate the timber contract or waive the forfeiture without the consent of the owners of the land.</p> <p>2. Logs and logging <&wkey;3(5) — Acceptance of money for timber cut subsequent to forfeiture validated contract only as to timber paid for.</p> <p>Where vendor of timber terminated timber contract by effectually declaring a forfeiture, his acceptance of money for timber cut thereafter or for timber that might be cut after such a payment did not reinstate the contract as a whole, but validated only the ■ cutting of the timber paid for.</p> <p>3. Logs and logging &wkey;>3(l5) — Temporary injunction issued against cutting of timber pending determination of merits.</p> <p>Owners of timber land suing to cancel timber lease and to enjoin cutting of timber, on ground that timber lease had been forfeited, were entitled to a temporary injunction restraining the cutting of timber pending the determination of the merits.</p> <p>4. Logs and logging <&wkey;3(5) — Contract held ' not to require 60 days’ notice of default before forfeiture.</p> <p>Timber contract requiring a default for 60-day period before vendor could declare a forfeiture held not to require a 60 days’ notice of default before declaration of forfeiture.</p> <p>5. Logs and logging ¡&wkey;3(15) — Injunctive relief against holdover tenant or contractee not dependent on irreparable damage.</p> <p>Owner’s right to injunctive relief against a holdover tenant or contractee in violation of terms of the contract under which possession and timber rights were held and claimed was not dependent on the theory of irreparable injury to the land, it being sufficient that a possessory contract had boon and was being violated to the injury of the owner.</p>

I. Jones, Judge. Action by Howard Dearman against the Standard Cooperage Company for, damages for injuries received while in defendant’s employment. Judgment for plaintiff, and defendant appeals.

Clair County ; W. J. Martin, Judge. Action by D. A. Aderholt against Eugene Stockburger and others for damages to trespass to land. Judgment for plaintiff, and defendants appeal.

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Ejectment suit, in which Carrie S. H. Handy was the plaintiff and T. J. Gray the defendant. There was a judgment for plaintiff, and from a judgment denying defendant’s motion to set aside the judgment, he appeals.</p> <p>No presumption is indulged in favor of the judgment of the trial court. Section 2846, Code 1907, as amended by Acts 1915, p. 722. Section 5372 of the Code affords a less, expensive remedy than is afforded by an equitable proceeding for the same purpose. 71 Ala. 195. The petitioner is not put to full proof of the facts. 60 Ala. 268. There was a meritorious defense, sufficient to set aside' the judgment. 64 Ala. 162.</p> <p>Section 2846 as amended does not change the rule declared in Cobb v. Malone and the long line of cases following it. 81 South. 470 ; 202 Ala. 317, 80 South. 399; 201 Ala. 545, 78 South. 899; 199 Ala. 388, 74 South. 380. The burden rested upon the movant to reasonably satisfy the court that he had no notice or knowledge of the suit. 191 Ala. 287, 68 South. 51; 197 Ala. 690, 73 South. 379. The presumption is that the sheriff’s return was correct. 110 Ala. 487, 18 South. 268; 191 Ala. 287, 68 South. 51; 196 Ala. 302, 71 South. 692; 201 Ala. 13, 75 South. 304.</p>

Petition by the Commonwealth Life Insurance Company of Louisville, Ky., for certiorari to the Court of Appeals to review its judgment (86 So. 520), rendered on the appeal of the insurance company in suit against it by Mrs. Averillar Roy.

L. Martin, Judge. Bill by George Stuart, as trustee in bankruptcy of C. V. Bogacki, against T. A. Monk and wife, to enforce vendor’s 1-ien. From decree- for complainant, respondents appeal. The controversy was over the purchase of a house which was built by Bogacki and purchased by Monk for the sum of $6,000, Monk assuming a $3,500 -mortgage, the balance to be paid out of his salary and commissions, he being at the time employed by Bogacki.

Merrill, Judge. Bill by W. D. Henderson against Essie C. Porter. From the decree rendered, Essie C. Porter appeals, with cross-appeal by W. D. Henderson. Counsel discuss and argue the facts, but without citation of authority. .Counsel discuss and argue the facts, but without citation of authority.

L. Martin, Judge. Suit by the Empire Theater Company against the Montgomery Enterprises and others to enjoin the production of the first run of moving picture films. From decree overruling demurrers to the bill, respondents appeal. The bill was filed by the Empire Theater Company, a corporation, operating a theater for the exhibition of moving pictures for a reward in a city of the county where the bill was filed. One of the defendants, Select Pictures Corporation of.

C. B. Giyynn, Judge. Action by Jesse C. Justice, as administrator, against the Gulf States Steel Company, for damages for the death of bis intestate in the employment of tbe defendant, with intervention by Chas. A. Calhoun and Goodwyn & Ross. Judgment for plaintiff, and defendant appeals.

Action by the W. O. Broyles Stove & Furniture Company against Walker D. Hines, as Director General operating the Southern Railway Company. From judgment for defendanf, plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450. The plaintiff shipped to Mrs. Peck, at Florence, Ala., furniture valued by them at $600.

C. Brickell, Judge. Bill by Rachael Godbey against Isaac God-bey and others to sell land for division. Prom a decree dismissing the bill, complainant appeals. All the parties claim title through William Godbey, Sr., who at one time owned and was in possession of the land. The complainant and all of the respondents, except Mary Moore, M. L. Moore, and Birdie Moore, are children and grandchildren of William God-bey.

<p>Appeal and" error t&wkey;!005(4) — Approved ver" diet may be set aside when preponderance of evidence is decidedly against the verdict.</p> <p>On the question whether the verdict is contrary to the evidence, while great respect is paid to the views and judgment of the trial court in overruling motion for new trial, if, after allowing all reasonable presumptions in favor of the correctness of the verdict, the preponderance of the evidence against the verdict is so decided as to involve the conviction that it is wrong and unjust, the Supreme Court will grant a new trial.</p>

<p>Appeal from Circuit Court, Lowndes County; A. E. Gamble, Judge.</p> <p>Suit by Mildred R. McKeithen against Mildred B. Rich and others. From decree sustaining demurrers to the bill, complainant appeals.</p> <p>A judgment obtained by fraud may be set aside in a court of equity.- 85 Ala. 522; 72 Ala. 1; 34 Ala. 198, 73 Am. Dec. 455. The statute of frauds cannot be set up to protect a fraud, 174 Ala. 410, 56 South. 921; 195 Ala. 454, 70 South. 640; 20 Cyc. 280, 281; Pomeroy’s Equity, § 921, and cases cited in notes. Equity has jurisdiction under the facts averred in this bill, not only to remove the cause, but. to relieve against the judgment of the probate court. 85 Ala. 522; 72 Ala. 1; 98 U. S. 51, 25 L. Ed. 83; 113 Ala. 469, 21 South. 59, 59 Am. St. Rep. 122; 86 Ala. 357, 5 South. 572, 11 Am. St. Rep. 46. None of the demurrers were well taken.</p> <p>The bill violates subdivision 5, § 4289, Code' 1907. A guardian ad litem is without authority to make the agreement here set up. 161 U. S. 691, 16 Sup. Ct. 714, 40 L. Ed. 849. The facts do not show that Mrs. Rich was not entitled -to the credits allowed her. 161 Ala. 534, 50 South. 56. Fraud, without damages, gives no cause of action. 30 Ala. 709. The parties complainant have not acted with promptness. 188 Ala. 667; 65 South. 988; 194 Ala. 537, 69 South. 948.</p>

Lloyd Tate, Judge. Action by Stewart Bros, against W. T. Ransom for the recovery of certain lands. Judgment for defendant, and plaintiffs appeal. There was evidence in the case from which the jury could infer that the defendant claimed through the plaintiff’s grantor in possession, and the court erred in directing a verdict for the defendant. 184 Ala. 153, 63 South. 943; 190 Ala. 597, 67 South. 403; 98 Ala. 480, 13 South..570, 22 L. R. A. 297, 39 Am.

C. B. Gwynn, Judge. Action by W. C. Paden against Walker D. Hines, Director General of Railroads, operating the Alabama Great Southern Railroad. From judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Laws 1911, p. 449, § 6.

<p>1. Set-off and counterclaim <&wkey;35(I) — Defend, ant cannot apply unliquidated counterclaim against liquidated demand.</p> <p>In an action by a corn products company for the purchase price of glucose sold defendants, where it appeared that defendants deducted certain amounts claimed to be due them under a profit-sharing plan, and sent a check to plaintiff for the balance, and the dispute was with respect to such set-off, and not as to the amount of plaintiff’s demand against defendants, defendants could not, without plaintiff’s consent, apply a counterclaim or cross-demand to the admitted indebtedness due plaintiff, and thereby reduce the amount of plaintiff’s demand or create a dispute in respect to the amount due therein.</p> <p>2. Accord and satisfaction <&wkey;11(1) — Check not accepted as tendered in full, but only as payment on account, held inadmissible.</p> <p>In an action by corn products company for the purchase price of glucose sold, wherein defendants admitted the indebtedness, but sought to set up a claim, and tendered check for the balance as full payment, neither the correspondence nor the check was admissible, where defendants’ tender was not accepted as a tender in full, but only as payment on account.</p> <p>3. Monopolies <&wkey;23 — Right to recover on contract of sale held not prevented by violation of anti-trust law.</p> <p>In an action by a corn products company for the purchase price of glucose sold, where defendants admitted the indebtedness, a violation of the Anti-Trust Law by plaintiff in selling the goods constituted no defense.</p> <p>4. Monopolies &wkey;>23 — Plea setting up violation of state monopoly statute demurrable 'where - not alleged that illegal transaction occurred within state.</p> <p>In an action by a corn products company for the purchase price of glucose sold, a plea setting up a violation of the state statutes prohibiting pools, monopolies, trusts, or combinations in restraint of trade held properly sustained, where they did not aver that the combination was formed, carried on, or maintained within the state, or that the transactions out of which plaintiff’s cause of action arose occurred in the state.</p>

A. Steele, Judge. Action by T. S. Kyle and others, as trustees, against the Alabama City, Gadsden & Attalla Railway Company. From judgment for plaintiffs, defendant appeals. The matter referred to as occurring on page 114 of the transcript is as follows: Schulerbeing on the' stand as witness, was shown an indemnity agreement that was signed by a number of people guaranteeing the subscriptions of $150,000 to the Southern Steel &. Iron Company.

<p>1. Appeal and error <&wkey;l050(2) — Railroads t&wkey;l79 — Testimony of city population increase irrelevant in action on railroad’s subscription notes, and prejudicial.</p> <p>In an action against a railroad on a subscription note signed by its president to induce removal of a steel plant from' one point to another, evidence as to an increase in population of a city since removal of the plant, etc., held irrelevant and prejudicial; the admission of such testimony not being justifiable' as in support of the pleas of ultra vires or failure of consideration.</p> <p>2. Pleading <®=3l0l — Plea in action on note not in abatement but in bar.</p> <p>In an action against a railroad company on a subscription note signed by its president to procure removal of a steel plant from one point to another, plea setting up indorsement of the note in blank by trustees to plaintiff bank without actual payment of consideration, and that after the note fell due plaintiff bank charged the same back to the trustees in satisfaction of deposit, and delivered the note to them, etc., ¡held. not a plea in abatement, but one in bar of plaintiff's right of recovery.</p>

C. B. Gwin, Judge. Action by Milton James against the Louisville & Nashville Railroad Company in trover and detinue. Judgment for plaintiff, and defendant appeals. After remand on the former appeal, plaintiff struck out the Alabama Great Southern Railroad Company as a defendant and all the counts except the third, which is as follows: ■ , “Third.

<p>1. Dedication <&wkey;4l — Intention may be inferred.</p> <p>The intention to dedicate may be inferred.</p> <p>2. Dedication &wkey;^44 — Intent to dedicate held not shown.</p> <p>In an action to enjoin obstruction of an alleged public highway originally laid out by the landowner as a matter of private convenience and changed from time to time according to his own pleasure, facts held not to sufficiently show a dedication by the owner of the land, or a public use necessary to establish a prescriptive right in the public.</p> <p>3. Dedication <&wkey;20(5)— Use by public must be exclusive of private rights of owner.</p> <p>Before the public can obtain a prescriptive right to the use of a way over private property, the public use should be exclusive of the private rights of the owner.</p> <p>4. Dedication <&wkey;20(5) — Use of way by postal authorities showed no dedication.</p> <p>Use of a way established by a landowner by post office authorities as a part of a rural route held not to show a dedication of the land.</p>

Pugh, Judge. Action by W. D. Smith against the Republic Iron & Steel Company. Judgment for plaintiff, and defendant appeals. Suit by appellee against appellant to recover damages alleged to have been sustained by the plaintiff while in the employ of defendant, engaged in the operation of a hoisting apparatus or device used for hoisting the ore from defendant’s mine.

A. Pearce, Judge. Action by J. R. Kelly, revived in the name of Ms executors, against the Kinston Supply Company, for damages for destroying a lien. Judgment for the plaintiff, and the defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. The contract between Lawrence and Kelly, directed to be set out, is as follows: “The State of Alabama, Geneva County. “This agreement, made and entered into this 23d day of.

Kyle, Judge. Action by Fred Schneider against the Southern Cotton Oil Company. From judgment for defendant, plaintiff appeals.

J. Garrison, Judge. Petition by J. M. Lyons for mandamus to J. M. Leonard, Jr., as Chairman of the Democratic Executive Committee, for mandamus to compel him to certify petitioner’s name to the proper authorities as the nominee of the Democratic party for commissioner in district No. 1. Prom decree awarding the writ respondent appeals. The title and subject of the act is misleading ,and not clearly expressed in the title.

<p>Appeal from Circuit Court, Jefferson Coun'ty; John C. Pugh, Judge.</p> <p>Action by Ed. Wetzel against the Birmingham Southern Railroad Company for damages alleged to have been suffered in a collision. Judgment for defendant, and plaintiff appeals.</p> <p>The following charges were given at the instance and request of the defendant:</p> <p>N. The court charges the jury that it was not sufficient, in order to entitle you to bring in a verdict for the plaintiff, that he received injuries while crossing the railroad track of the defendant, on account of defendant’s train colliding with him; but before he ((an recover the burden is upon hiim to satisfy the jury and each individual juror that the defendant has been guilty of some act of negligence charged in the complaint, or of Wanton or willful or intentional misconduct, and until he has discharged this burden he will not in any pvent be entitled to a verdict.</p> <p>N. 2. Before you can find that the defendant’s servants or agent were guilty of wantonness, the burden is upon the plaintiff to reasonably satisfy you from the evidence, that the servants of the defendant, operating the train with knowledge of the existence of conditions at the crossing as made it likely or probable that some one would be exposed to danger on the crossing, with such knowledge, did or omitted to do some act, consciously, or with reckless indifference to consequence; and I further charge you that, before you can find that the engineer in operating the train was guilty of such wanton misconduct, the plaintiff must have reasonably satisfied you from the evidence that, with knowledge of such condition of the crossing and with a reckless disregard to consequences, he operated the train at an excessive rate of speed and without giving warning of. its appi’oaeh.</p> <p>(41) Before you can convict the defendant’s' engineer of wantonness in this case, the plaintiff must have reasonably satisfied you from the evidence that the engineer had reason to believe that persons were or probably would be in exposed positions on the track, and that, with such knowledge and with a reckless indifference to consequences, he ran his train on and across such crossing at an excessive rate of speed without giving warning.</p> <p>0¿ Before you can find that defendant’s engineer was guilty of wantonness in operating the train, the plaintiff must have reasonably satisfied you from the evidence that, with knowledge of condition at the crossing which caused him to know that some one would probably be on the crossing and exposed to danger, he knowingly and consciously, and with reckless indifference to consequences, both operated the train at a reckless rate of speed and without giving signals of approach to said crossing.</p> <p>(25) Unless the plaintiff has reasonably satisfied you from the evidence that defendant’s engineer was guilty of negligence which proximately contributed to cause his injury after he discovered plaintiff’s peiil, then plaintiff cannot recover under the second count of the complaint, and in determining whether or not he was guilty of such subsequent negligence you may consider the fact, if it be a fact, that he was acting in an emergency, and if you believe from the evidence that he used the kind of care that a competent engineer of reasonable prudence would have used under like cix-cumstances, then- I charge you that he would not be guilty of negligence.</p> <p>The count erred in giving charge N. Section 5476,- Code 1907; 177 Ala. 346, 58 South. 433; 144 Ala. 530, 41 South. 612; 119 Ala. 666, 24 South. 459; 146 Ala. 512, 40 South. 1017; 126 Ala. 103, 27 South. 760; 202 Ala. 406, 80 South. 504; 198 Ala. 302, 73 South. 513. Charges 41 and C were improperly given. 119 Ala. 563. Charge 25 was improperly given. 197 Ala. 71, 72 South. 367. The fact that,, the jury foxxnd for the .defendant on the subsequent negligence count did not render the giving of the charges innocuous. 184 Ala. 421, 63 South. 992; 184 Ala. 570, 64 South. 46; 192 Ala. 636, 69 South. 57; 75 South. 191.</p> <p>Counsel discuss their motion to strike bill of exceptions, with citation of authority, but do not discuss the case on its merits.</p>

Merrill, Judge. Action by Mrs. M. A. Meshow against A. P. Agee. Erom judgment for defendant, plaintiff appeals. Indorsed on the back of the bill of exceptions is the following: “Presented this 7th day of July, 1919, Hugh D. Merrill, Judge. Approved and allowed as bill of exceptions in this case, this Sept. 1, 1919.

<p>1. Judgment «&wkey;243 — Court cannot decree that complainant has lien superior to that of persons not parties.</p> <p>In- a suit to declare and establish a superior and paramount lieh on property, the court is without authority to decree that complainant has a claim or lien superior to that of persons who are not parties to the .suit.</p> <p>2. Mortgages i&wkey;>l86(l) — In suit against trustee under mortgage, decree against bondholders that plaintiff had superior lien erroneous.</p> <p>In a suit against the trustee under a mortgage to establish a superior lien in plaintiff’s' favor, where the bill alleged that the bondholders were unknown, hut no affidavit was made showing that their names or residences were unknown, and no diligence to ascertain their names and residences was shown, and there was no publication of notice to them, no attachment of their property, and no compliance with statutory requirements to perfect service on them as unknown or nonresident defendants, and no appearance by them, the court had no authority to render a decree injuriously affecting their interests, as, in equity, cestuis que trustent are the real parties, and are not represented by the trustee.</p> <p>'3. Mortgages <&wkey;315(1) — Release by trustee held to prevent bondholder from asserting equities against parties to subsequent mortgage relying on release.</p> <p>Where the trustee under a deed of trust executed a release reciting full payment of the debt and quitclaiming the property, and a holder of warrants secured by' the deed of trust had notice of such release, his successor in title could not assert Equities against the trustee and bondholders under a subsequent mortgage, who relied upon the certificate ,of payment and release.</p> <p>4. Mortgages &wkey;>3!5(2) — Filing of release by trustee held constructive notice without regard to book in which release recorded.</p> <p>The filing of a release of a deed of trust by the trustee was constructive notice of the discharge of the trust deed to all parties in interest, without regard to what book it was recorded in, as the party filing it was not required by the statute to supervise its recordation.</p> <p>5. Trusts <&wkey;!89 — Trustee having ' legal title may convey, assign, or incumber estate, and cestui que trust must resort to equity.</p> <p>As a general rule at law, a trustee clothed with the legal title, unless restrained by the terms of the trust, may convey or assign or incumber the trust estate, and if the cestui que trust is injured, he must resort to a court of-equity for relief.</p> <p>6. Mortgages 186(3) — Holder of warrants secured by released mortgage has burden of showing mortgagee’s knowledge of his rights.</p> <p>The holder of town warrants secured by a deed of trust which had been released by the trustee had the burden of showing that the trustee and bondholders under a subsequent mortgage had knowledge or notice of his claims and rights in order to establish a paramount lien.</p> <p>7. Mortgages &wkey;>!86(3) — In suit to establish superior lien, complainant, alleging notice to defendant, must establish it.</p> <p>In a- suit by a holder of town warrants secured by a deed of trust which had been released by the trustee, against the town and a subsequent mortgagee to establish a superior lien, where complainant alleged notice on the part of defendants of his equity or right, the establishment of such notice was a prerequisite to recovery, aside from the burden placed on him by the release.</p>

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge. 1</p> <p>Action by Albert F. Wilson against the Montgomery Bank & Trust Company. Judgment for the defendant, and the plaintiff appeals.</p> <p>Counsel insist that under the facts the defendant was not entitled to the affirmative charge, but he cites no authority in support thereof.</p> <p>Counsel discuss the history of the case, and insist in argument that the court properly directed a verdict for the defendant.</p>

Application by Georgia Russell for certiorari to the Court of Appeals to review and revise the judgment of such court (87 South. 221) in a prosecution for murder.

<p>1. Ejectment <&wkey;l 11 (3) — Requirements as to description of land in verdict stated.</p> <p>Under Code 1907, § 3853, where the verdict in ejectment is special, as being for a part only of the premises sued for, the. boundaries of the land recovered must be designated with reasonable certainty in the verdict to enable the court to award judgment on it, but a general verdict for the plaintiff, for the land described in the complaint, is good.</p> <p>2. Ejectment &wkey;U 11 (I)— General finding for plaintiff held á good verdict.</p> <p>-In ejectment, a verdict, “We, the jury, find for the plaintiff, assessing the damages” at a named sum, held good, as it must be construed as a finding on the issue joined, and such finding is as definite and determinate as if the verdict had in terms affirmed that the jury found for the plaintiff for the lands described in the complaint.</p> <p>3. Adverse possession <&wkey;66(2) — Possession to turn row and ditch held to give title, although originating in mistake of fact.</p> <p>Possession for 40 years by plaintiff and Ms predecessors of a strip on plaintiff’s boundary up to the line of a turn row and ditch gave plaintiff title, where such possession did not originate in an admitted possibility of mistake, but plaintiff and his predecessors believed such line was the true line, even though such belief as to its correct location originated in' a mistake in fact; it being immaterial what plaintiff or his predecessors might or might not have claimed had they known they were or might be mistaken.</p> <p>4. Adverse possession <&wkey;66(l) — Recording act does not apply to possession of boundary strips.</p> <p>Act Feb. 11, 1893, p. 478 (Code 1896, § 1541), as amended by Code 1907, § 2830, relating to recording color of title, does not apply to eases involving questions as to boundaries between coterminous owners.</p> <p>5. Judgment &wkey;?24 — Trial &wkey;»343 — Judgments and verdicts must be perfect without resort to extrinsic facts.</p> <p>Every judgment must either be perfect in itself, or capable of being made perfect by reference to the pleadings or to the papers on file in the cause or else to other pertinent entries in the court docket, and verdicts, in like manner, cannot be supplemented by intendment, or by reference to mere extrinsic facts.</p> <p>6. Appeal and error <&wkey;>2l8(l) — For objection to verdict, first raised on appeal, to avail, verdict must be wholly void.</p> <p>Where the objection that the verdict is so hopelessly defective as to afford no proper basis for the judgment was not raised in the trial court, but is raised for the first time on appeal, it is necessary, for the objection to avail, that the judgment be found wholly void.</p> <p>7. Appeal and error &wkey;>934(2) — Presumed that trial court referred verdict to that count which the evidence sustained.</p> <p>Where complaint in statutory ejectment was in three counts and verdict for plaintiff was a general one and court gave judgment for land described in the third count, which was sustained by evidence, it will be presumed on appeal that trial couj't referred verdict to that result which court knew the evidence sustained.</p> <p>8. Appeal and error <&wkey;l033(9) — No reversal for error favorable to party complaining.</p> <p>Where judgment on general verdict might have been rendered for plaintiff on either or both first or third count, defendant cannot complain that judgment was rendered for land described in third count but not for that described in first count.</p>

Lloyd Tate, Judge. •Charles Wimberly was convicted of murder in the first degree, and he appeals. Where one party introduces immaterial evidence, the other party has the right to meet such evidence in refutation by evidence of a like kind. 1 Ala. App. 128, 55 South.' 1024. The fact that, 30 days before defendant shot deceased, the deceased had shot at the defendant and threatened to kill him, was admissible. 177 Ala. 24, 59 South. 270; 181 Ala. 28, 61 South. 259; 13 Ala.

Locke, Judge. Bill by Dora D. Black against J. S. Arnold and another. From a decree overruling a motion to dissolve a temporary injunction, respondents appeal.

<p>Appeal from Circuit Court, Coffee County; A B. Foster, Judge.</p> <p>Bill by the Enterprise Auto Company, a partnership composed of Henry A. Dorsey and another, against W. S. Huey to compel the conveyance by him of certain property. From a decree for respondent, complainant appeals.</p> <p>The averments of the bill are that complainants desire to purchase certain property situated in the town of Enterprise then occupied by them as their place of business, and that they heretofore employed the defendant to represent them in various matters, and that he had always accepted employment from them. They informed him that they were contemplating purchasing this property and were beginning to make arrangements to acquire it, and wanted him to pass upon the title and to draw up the papers conveying title to them. Thereafter, and with this knowledge, respondent wrote McSwain, making him an offer for the property, and purchased the same from him, receiving from McSwain a warranty deed. On discovering this breach of duty to complainants they offered respondent the money he had paid for the property, together with a reasonable attorney’s fee, and requested him to make them deeds to the property, and this he refused to' do. Complainants now offer to pay same into court, and ask the court to compel respondent to execute his deed to them for the property. There was evidence introduced by both sides tending to support their various contentions, and the evidence is in irreconcilable conflict.</p> <p>The original brief filed by counsel, if one was filed, is not in the- record, and in their reply brief counsel discuss the facts, but cite no authority.</p> <p>Complainants did not make out their case with that clear and satisfactory averment of errors that is required. 62 Ala. 133; 62 Ala. 584; 166 Ala. 360,-52 South. 323.</p>

B. Foster, Judge. Bill by J. J. Dunnavant against the Bank of New Brockton to redeem from foreclosure. From a decree overruling the demurrers to the bill, respondent appeals.

B. Foster, Judge. Ejectment by Alice Gaines and others against Emma Carter and others. From judgment for plaintiffs, defendants appeal. The following charges were refused to the defendant: (2) In order for cohabitation to arise to the dignity of evidence of marriage, it must be constant and exclusive cohabitation between the man and the woman, entered into with a view of becoming husband and wife.

<p>1. Appeal and error <&wkey;843(l), 1027 — Appellant cannot complain of errors as to count he recovered on except as to amount.</p> <p>In an action in trespass and trover and for the statutory penalty for cutting trees, a verdict for plaintiff for $2.50, being less than the statutory penalty for one tree, could only be referred to the other counts, and plaintiff could only complain of error affecting his right to recover under the statutory counts or the amount of recovery under the other counts.</p> <p>2. Trespass &wkey;?45(6) — Trover and conversion <&wkey;38 — Evidence that trees cut by timber grantee were used on the land held admissible.</p> <p>In an action in trespass and trover and for the statutory penalty for cutting trees, evidence that they were not removed from plaintiff’s land, but were used in constructing a causeway the construction of which- was authorized by a timber deed, was admissible on the question of. conversion and as bearing on the amount of damages, and, under the trespass counts, to negative or mitigate the damages to the freehold.</p> <p>3. Appeal and error c&wkey;1033(3) — Plaintiff not entitled to complain that court limited defendant’s evidence.</p> <p>In trespass and trover and for the statutory penalty for cutting trees, where evidence offered by defendant was admissible on the question of conversion and under the count for trespass, plaintiff could not complain that the court confined it to the counts for conversion.</p> <p>4. Evidence &wkey;>47l (5) — Testimony that defendant’s agent said plaintiff would object to cutting of trees properly excluded as opinion.</p> <p>In an action for cutting trees, testimony that defendant’s agent told the workmen that plaintiff would “raise sand” about the cutting of the trees, but to go ahead and cut them, was properly excluded, as this was a mere opinion of, the agent unaccompanied by any facts or declarations explaining or elucidating it.</p> <p>5. Appeal and error <&wkey;l056(4) — Exclusion of evidence harmless where verdict involves finding for complaining party as to particular fact.</p> <p>In an action for cutting trees, if testimony that defendant’s agent told the workmen that plaintiff would “raise sand” about the cutting was admissible as showing his consciousness or appreciation of the fact that plaintiff had not consented to the cutting or had objected or would object, its exclusion was harmless, where the jury found in his favor for a small amount of damages, thus in effect finding that he had not consented.</p> <p>6. Trespass <&wkey;45(6) — Statement of defendant’s agent that plaintiff would object to cutting of trees immaterial.</p> <p>In an action in trespass and trover and for the statutory penalty for cutting trees, evideuce that defendant’s agent said plaintiff would “raise sand'’ about the cutting was immaterial on the question of defendant’s liability for the statutory penalty.</p> <p>7. Trespass <&wkey;63 — Cutting of trees does not justify statutory penalty if not knowingly and willfully done.</p> <p>If a grantee of timber in cutting undersized trees for the construction of a roadway authorized by the deed did not act knowingly and willfully, but under the honest belief that he had a right to cut them under the deed, he was not liable for the statutory penalty under Code 1907, § 6035, though they were cut without plaintiff’s consent and under circumstances rendering defendant liable for punitive damages.</p> <p>8. Trespass <&wkey;45(6) — Timber deed held admissible as bearing on motive and liability for punitive damages.</p> <p>In an.action against a grantee of timber in trespass and trover and for the statutory penalty for cutting undersized trees in the construction of a roadway authorized by the deed, though the deed did not authorize the cutting, it was admissible as bearing on the motive and intent with which the trees were cut and on the question whether the cutting was an aggravated, rather than an ordinary, trespass carrying punitive damages.</p> <p>9. Trial <&wkey;256(7) — Instruction as to consent to cutting of trees not negativing withdrawal not reversible error in absence of request.</p> <p>In an action for cutting trees, an instruction to find for defendant if plaintiff consented, if misleading because not negativing plaintiff’s subsequent withdrawal of his consent, was not reversible error, as the misleading effect could have been removed by a counter explanatory charge.</p> <p>10. Appeal and error &wkey;>l068(l) — Instruction to find for defendant on specified hypothesis harmless where jury found fon plaintiff, though for insufficient amount.</p> <p>In an action for cutting trees, an instruction to find for defendant if plaintiff consented to the cutting, if erroneous, was harmless, where the jury found for plaintiff, thus finding that ho did not consent, though awarding damages unsatisfactory to plaintiff.</p> <p>11. Trial <&wkey;l94(IO) — Instruction to find for plaintiff if defendant cut trees without plaintiff’s consent held to invade province of-jury.</p> <p>In an action against a grantee of timber in trespass and trover and for the statutory penalty for cutting trees, instructions in effect to find for plaintiff if defendant cut the trees without plaintiff’s consent were properly refused as invading the province of the jury with respect to the statutory penalty, where the jury might have found that the trees were cut under the honest belief that defendant had a right to cut them.</p> <p>12. Trespass <&wkey;68(2) — Instruction properly refused as meaningless.</p> <p>In an action in trespass and trover and for the statutory penalty for cutting trees, an instruction, “If you believe the evidence in this case, that the plaintiff did not consent to the cutting of any pine trees under 12 inches in diameter at the ground that may have been cut from said land, if any, in 1917,” was properly refused as involved and meaningless.</p> <p>13. Appeal and error <&wkey;l068(5) — Refusal of affirmative instruction that plaintiff did not consent to cutting of trees harmless where jury so found.</p> <p>In an action for cutting trees, the refusal of an affirmative instruction that there was no consent to the cutting, if erroneous, was harmless, where the jury found for plaintiff for a small amount of damages, thus finding that there was no consent.</p>

Grayson, Judge. Action by Yeend Brothers Realty Company against Chas. De Briere, Jr., on the common counts to recover for commissions earned on the sale of real estate. Judgment for the plaintiff, and the defendant appealed. Transferred from court of appeals under p. 450, section 6, acts 1911.

A. Green, Judge. Action by Herman Andrews by bis next friend against the Birmingham News Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals.

; John C. Pugh, Judge. Action by E. P. Allen against the Jacob Dold Packing Company, begun by attachment. From a judgment for the defendant on certain counts plaintiff appeals, and from judgment for plaintiff as to certain counts defendant appeals; each party filing a cross-appeal. Transferred from court of appeals under section 6, Acts 1911, p. 450.

B. Poster, Judge. Bill by Wright *E. Watson against S. S. Kirkland and others to enjoin the obstruction of a public road. Decree for complainant, and respondents appeal. The court was in error in denying appellant relief in this cause and in dismissing his bill. 174 Ala. 457, 57 South. 375; 95 Ala. 28, 11 South. 375; 140 Ala. 268, 37 South. 79. The court was also reversed because the decree was rendered before the cause was at issue.

<p>Ax>peal from Circuit Court, Bibb County; B. M. Miller, Judge.</p> <p>Suit by Lucinda Eondren and. others against Margaret Emma Johnston and others to cancel certain deeds, for an accounting, and for the sale of land for division. From a decree granting the relief prayed, respondents appeal.</p> <p>The bill was not sufficient in allegation as a bill for division. 9 South. 524. The burden is on the party alleging insanity to prove it, and, where incaxmcity is alleged, it must be shown as of the time of the execution of the paper. 28 Ala. 565; 100 Ala. 157, 14 South. 685, 46 Am. St. Rep. 33. This has not been done. 135 Ala. 332, 33 South. 902 ; 28 Ala. 100; 87 Ala. 685, 6 South. 95, 4 L. R. A. 637. The conversation with Lavender was privileged. 10 Enc. of Ev. 205 and 334. Counsel discuss other assignments of error; but, in view of the opinion, it is not deemed necessary to here set them out.</p> <p>Counsel confine their discussion to the propositions that certain things are not in the record, and that on the record an affirmanee must follow. They also discuss whether or not certain of the parties respondent can inherit; but, in view of the opinion, it is not deemed necessary to here set them out.</p>

A. Green, Judge. Action by Pearl Bush, pro ami, against the Alabama Fuel & Iron Company, for damages for personal injuries. Judgment for the plaintiff, and the defendant appeals. The counts as amended are a & follows: Count 1.

O. B. Gwynn, Judge. Action by Jesse Johnson against the Louisville & Nashville Railroad Company for damages for failure to deliver household goods. After judgment for plaintiff from which defendant took an appeal, plaintiff filed separate cross-appeal. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Counsel discuss the errors assigned; but, in view of the prevailing opinion, the authorities are not here set out.

S. Williams, Judge. Bill by Elizabeth McSwean against R. L. McSwean to declare null and void a conveyance executed by her because of a failure to observe a condition subsequent. Decree for respondent, and complainant appeals. The case made is that of an old woman conveying what was left her to a nephew in consideration of his care for her for the balance of her life, with the usual charges of mistreatment and falling out.

<p>!. Mortgages <&wkey;59l (I) — Foreclosure of second mortgage cuts off right to redeem from first mortgage.</p> <p>The foreclosure of a second mortgage when there was no redemption therefrom under Code, § 5746, divested the mortgagor of all interest or title in the land, including his right to redeem from a first mortgage.</p> <p>2. Mortgages <&wkey;59l (I) — After foreclosure of second mortgage agreement by purchaser to sell to mortgagor gives no right to redeem from first mortgage.</p> <p>Where property sold on foreclosure of- a second mortgage to the mortgagee was sold by it to the mortgagor’s wife, who entered into a contract with the mortgagor authorizing hiim to purchase the land by paying the amount paid by the wife, the contract merely gave the mortgagor, as between him and the wife alone, a right to purchase, and did not give him any interest or title to the land entitling him to redeem from the first mortgage.</p>

B. Foster, Judge. Action by Maude E. Adams against the Sovereign Camp, Woodmen of the World, on a beneficiary life certificate, issued upon the life of Robert Lee Adams. Judgment for plaintiff, and defendant appeals.

<p>1. Master and servant &wkey;>259(5) — Count under statute for negligence of mining superintendent, causing injury to mine trackman, field sufficient.</p> <p>In an action against a mining company for death of its employee, count, based on Employers’ Liability Act (Code 1907, § 3910, subd. 2) averring that, while plaintiff’s intestate was employed by defendant as a helper to track-men, he was run over or against by a car or cars on a track of defendant’s railway, and so injured that he died, the injuries and damage being caused by reason of and as a proximate consequence of the negligence of a person in defendant’s employ intrusted by defendant with superintendence, etc., held free from the grounds of demurrer directed to it.</p> <p>2. Master and servant 4&wkey;284(3) — Whether statement of mine superintendent was order, a jury question.</p> <p>In an action dgainst a mining company for death of its trackmen’s helper when run over by a car or cars, whether the statement of defendant’s superintendent to plaintiff’s intestate, “Come on, boys, let’s go,” though not in the form of an order, was the order of such superior official to the intestate which the latter was bound to obey, held for the jury, under the evidence.</p> <p>3. Pleading &wkey;>21 — Inconsistent issues may be presented by separate pleadings and replications.</p> <p>There may be inconsistent issues presented by separate pleadings and replications, and each referred to its own relative pleading.</p> <p>4. Master and'servant &wkey;>262(4) — Submission of issues of fact under pleas of contributory negligence not error.</p> <p>In an action against a mining company for death of its trackmen’s helper, defendant company’s pleas of contributory negligence, being to the effect that plaintiff’s intestate negligently went on the track when he knew a car or cars were approaching, etc., and that he went on the track on which cars were being operated while they were rapidly approaching, held that the trial court did not err in submitting the issue of fact under such pleas to the jury.</p>

Application by Lee McCrosky for certiorari to the Court of Appeals to review and revise its judgment (87 South. 219) rendered on his appeal from conviction for violation of the prohibition law. Writ denied.

L. Martin, Judge. Action by Jessie Boggs Thombs, as administrator, against the Montgomery Light & Water Power Company for damages for the death of lier intestate. Judgment for the plaintiff, and defendant appeals. Affirmed on condition that plaintiff enter a remittitur reducing the judgment from $25,000 to $15,000.

A. Grayson, Judge. Walter Delaney was convicted of murder in the first degree, and he appeals. The court erred in admitting the statements made by the alleged coconspirators and in his oral charge. 87 Ala. 27, 6 South. 284 ; 26 Ala. 44; 105 Ala. 60, 17 South. 114; 109 Ala. 11, 19 South. 535; 112 Ala. 102, 20 South. 424; 124 Ala. 37, 27 South. 410; 12 Cyc. 439.

<p>1. Criminal law &wkey;>622(l) — Question of severance rests in discretion of trial court.</p> <p>Though several defendants were jointly indicted, neither has the inherent right to demand joint trial, and where there is no demand for a separate trial as provided by Code 1907, § 7842, such right under rule 31, Code 1907 (vol. 2), p. 1525, is waived, and the question of severance rests in the sound discretion of the trial court, and a severance may be ordered without request.</p> <p>2. Criminal law <&wkey;>l086(IO) — Order as to venire in capital cases need not be part of record proper.</p> <p>Under Acts 1915, p. 708, Supreme Court rule 27, as amended March 23, 1918 (198 Ala. xv, 77 South, vii), the order as to the venire in a capital case, regulated by Acts 1909, p. 305, and Acts 1919, p. 1039, need not be a part of the record proper.</p> <p>3. Criminal law <&wkey;>5!7(2) — Confession admissible on predicate showing it was voluntary.</p> <p>In a prosecution for murder, the confession of defendant is admissible after proper predicate showing it to have been voluntary.</p> <p>4. Criminal law 1036(I) — Admission of confession will not be reviewed in absence of objection.</p> <p>Where no objection was made to the introduction in evidence of the several confessions of defendant and his coconspirators, nothing was presented for review.</p> <p>5. Witnesses <&wkey;>3l8 — Where credibility of defendant not attacked, his reputation for truth inadmissible.</p> <p>Where defendant took the stand and his credibility was not attacked, evidence as to his reputation for truth and veracity is inadmissible, for he cannot in that manner be permitted to support his own testimony, although a defendant when impeached piay sustain his character for truth and veracity by evidence of his reputation covering the period to the time of the trial.</p> <p>6. Criminal law <&wkey;379 — Reputation of defendant must be general reputation.</p> <p>In a criminal prosecution, where evidence of good character is offered, the evidence must be as to the defendant’s general reputation, and a witness cannot state his private opinion.</p>

Action by James A. Lewis against the Auto Service Company for unpaid rent, with attachment levied upon one Saxon automobile, with claim thereto by the Bank of Mobile. Judgment for claimant, and plaintiff appeals. Transferred from Court of Appeals under Laws 1911, p. 449, § 6. On May 24, 1916, Lewis procured an attachment against the property of the Auto Service Company on account of unpaid rent. On May 31 the sheriff executed the writ by levying upon a Saxon automobile.

<p>Appeal from Circuit Court, Monroe County; John D. Lee, Judge.</p> <p>Bill by Frederick I. Coley against Arthur M. English, Jr., and others, to enjoin them, their agents and employees, from cutting and removing or from committing any other depredations upon any of the timber situated upon the lands described in the deed of the Englishes to John J. King, of December 25, 1905, pending the determination of a bill by complainant for the specific performance by the Englishes of their contract to convey said land to complainant, which is now pending in this court. From a decree dissolving the temporary injunction and dismissing the bill, complainant appeals.</p> <p>It is th'e duty of this court, in the interest of justice and equity, to clearly and unequivocally reverse the rule of interpretation of timber deeds as announced in the Zimmerman Case, 149 Ala. 380, 42 South. 858, 9 L. R. A. (N. S.) 663, 123 Am. St. Rep. 58, and the cases following, and to hold that respondent’s title to the timber terminated with the expiration of his right to enter upon the lands for the purpose of removing the timber. 79 Ala. 437; 180 Ala. 48, 60. South. 267. The complainant is entitled to have the lands, including the timber thereon,' held in statu quo, until the rights of himself and his vendor are determined. Complainant is 1he equitable owner of everything belonging to the inheritance. 159 Ala. 633, 47 South. 106, 130 Am. St. Rep. 67; 119 Ala. 194, 24 South. 11; 112 Ala. 539, 20 South. 952; 69 Ala. 575; 18 Ala. 44, 52 Am. Dec. 209 ; 5 Ala. 399; 92 Pa. 318; 84 Ark. 160, 104 S. W. 1110; 120 Mo. App. 281, 96 S. W. 731; 101 Tex. 86, 104 S. W. 1056, 130 Am. St. Rep. 824; 85 Ark. 20S, 107 S. W. 391, 122 Am. St. Rep. 27; 52 Fla. 510, 42 South. 3S4. Counsel also cite, in this connection, 198 Ala. 236, 73 South. 486, L. R. A. 1917C, 232 ; 202 Ala.. 523, 81 South. 25;. 180 Ala. 148, 60 South. 825; 189 Ala. 13, 66 South. 720; 154 Ala. 660, 46 South. 239; 104 Ala. 465, 16 South. 632, 27 L. R. A. 434, 53 Am. St. Rep. 73; 67 South. 989; 182 Ala. 303, 62 South. 519 ; 127 Ala. 78, 28 South. 698; 61 S. E. 122; 201 Ala. 315, 78 South. 91; 200 Ala. 114, 75 South. 881; 96 Ala. 227, 10 South. 848 ; 72 Ala. 285, 47 Am. Rep. 412; 39 South. 318; 32 Ala. 723.</p> <p>The complainant is concluded by the long line of decisions settling the question here presented and which has become a rule of property in this state. 104 Ala. 465, 16 South. 632, 27 L. R. A. 434, 53 Am. St. Rep. 88; 42 South. 858.</p>

Goldsby, Judge. Bill by Bertram J. Vogel against Harriet E. Wood to redeem property from vendor’s foreclosure sale. From a decree overruling demurrers to the bill, respondent appeals.

<p>Appeal from Circuit Court, Mobile County;. Joel W. Goldsby, Judge.</p> <p>Action by Christeen Schmidt against the-Mobile Light & Railroad Company for damages for injury to an automobile in a collision. Judgment for defendant, and plaintiff appeals.</p> <p>Plea 3 as last amended is as follows:</p> <p>“(3) Eor further plea to the first count of the plaintiff’s complaint, the defendant says;That the chauffeur who was in charge of said automobile as the plaintiff’s agent and acting within the scope of his employment was himself guilty of negligence, in this, that he undertook to cross the defendant’s track in front of and ahead of the defendant’s car and in dangerous proximity thereto without first stopping, looking, and listening for the approach of said car, although he would have known of the approach of said car within dangerous proximity if he had stopped, looked and listened before bringing said automobile within dangerous proximity to the defendant’s track, and the defendant avers that the said negligence proximately contributed to the said injury.”</p> <p>Charge 2 given to the defendant is as follows:</p> <p>“If you believe the undisputed evidence, you cannot find for the plaintiff under the first count of the complaint.”</p> <p>Charge 5, given at the request of the defendant, is as follows:</p> <p>“When a motorman sees an automobile approaching the track on which his car is approaching, he has a right to assume that the automobile will either stop or turn off before the automobile reaches the track, and he is under no duty to stop or slow down his car until it becomes apparent that the automobile driver will not stop or turn off in time to avoid the collision, and, if it is then too late to avoid the injury, the street car company is not liable therefor.”</p> <p>The court erred in overruling demurrers to plea 3. 174 Ala. 657, 56 South. 1013. The court erred in giving charge 2. 151 Ala. 313, 44 South. 47; 140 Ala. 339, 37 South. 297; 136 Ala. 191, 34 South. 194; 158 Ala. 391, 48 South. 99; 192 Ala. 629, 69 South. 57; 186 Ala. 119, 65 South. 153; 11 Ala. App. 595, 66 South. 824. The court erred in giving charge 5. 136 Ala. 279, 34 South. 994, and authorities supra.</p> <p>Where the facts s.tated show that plaintiff was negligent per se, it is not necessary to allege that the act was negligently committed. 166 Ala. 524, 52 South. 52; 169 Ala. 387, 53 South. 915; 164 Ala. 33, -51 South. 169. ■ Plea 3 is unlike plea 7, criticized in appellant’s brief, 174 Ala. 673, 56 South. 1013, and is differentiated therefrom. The doctrine of “stop, look and listen” has been frequently applied to electric and street railways. 146 Ala. 344, 40 South. 761; 91 Ala. 564, 8 South. 778; 125 Ala. 212, 27 South. 1006; 84 Miss. 493, 36 South. 492 ; 3 Ala. App. 359, 57 South. 404. Charge 2 was properly given. 149 Ala. 616, 43 South. 359, 10 L. R. A. (N. S.) 801; 144 Ala. 191, 39 South. 715; 163 Ala. 210, 50 South. 110; 156 Ala. 269, 47 South. 84. Charge 5 was properly given. 110 Ala. 328, 20 South. 349; 177 Ala. 457, 59 South. 164; 177 Ala. 475, 59 South. 213; 116 Ala. 198, 22 South. 457.</p>

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

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

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

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

<p>Appeal from Circuit Court, Marengo County; R. I. Jones, Judge.</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 Court of Appeals.</p>

<p>Appeal from Probate Court, Jefferson County; J. P. Stiles, Judge.</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 the Court of Appeals.</p>

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

<p>Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge. George Thompson was convicted of murder in the second degree, and he appeals.</p>