Volume 205 — Alabama Reports

W. Ferguson, Judge. Action by C. B. Johnston against the Illinois Central Railroad Company. There was judgment for plaintiff in the sum of $30,000, and the defendant appeals.

Petition by the State of Alabama, on the relation of its Attorney General, for the alternate wilt of mandamus, directed to Hon. L. P. Troup, as Probate Judge of Morgan county, to require him to make an order suspending his judgment, admitting to bail one Charley Namie, pending an appeal by the State, and permitting the State to take an appeal from said judgment. Writ awarded.

<p>Certiorari to Court of Appeals.</p> <p>Tossie King was convicted of manslaughter, judgment was affirmed by Court of Appeals (17 Ala. App. 536, 87 South. 701), and he applies for certiorari.</p>

Leigh, Judge. Bill by Frances I. Irwin against J. M. Shoemaker and others to acquire title to land and to enjoin certain trespasses. From the decree rendered, complainant appeals. This is the second appeal in this chuse. Irwin v. Shoemaker, 85 South. 269,1 present term.

Application of Walker D. Hines, as Director General of Railroads, operating the Louisville & Nashville Railroad, for certiorari to the Court of Appeals to review and revise the judgment and decree of said court rendered in the appeal of Walker D. Hines, as Director General, etc., against M. D. McMillan (17 Ala. App. 509, 87 South. 696). The action was for damages for killing a ■mule.

Bill by Harry W. Ollinger against tbe Mississippi Shipbuilding Corporation, the Lever Transportation Company, and another to fasten a lien upon the Elizabeth Ruth for materials furnished, in constructing the vessel. Erom decree overruling demurrers to the bill, respondent Lever Transportation Company appeals.

<p>Appeal from Circuit Court, Mobile County ; Saifold Berney, Judge.</p> <p>Bill by the Standard Supply Company against the Mississippi Shipbuilding Corporation and the Lever Transportation Company, to enforce a lien, under section 3085 ,of the Mississippi Code, for materials and supplies furnished in. the construction of a vessel. From a decree overruling demurrers to the bill, respondents appeal.</p> <p>It is- thoroughly settled in Mississippi that the lien provided attaches only when the supplies are furnished under a contract with its owner. 77 Miss. 912, 28 South. 720; 90 Miss. 737, 44 South. 65; 61 Miss. 509. Any statute that would undertake to authorize a lien upon a vessel without the consent of the owner would be unconstitutional. 88 Ala. 500, 7' South. 194; 106 Ala. 520, 17 South. 707; 116 Ala. 253, 22 South. 555. The lien does not attach unless and until the goods are actually used upon the boat. 105 Ala. 361, 17 South. 216 ; 99 Ala. 246, 13 South. 506. It therefore follows that the court was in error in overruling the demurrers.</p> <p>In the absence of a maritime law, it is competent for the state to affix a lien and provide for its enforcement, and the “home port” doctrine is not applicable here. Section 4790, Code 1907. One contracting with the builder is contracting with the owner and is within the statute. 35' N. J. Law, 265;' 36 N. J. Law, 449, 13 Am. Rep. 463; 16 Gray, 514. The bill complies with the statute and with the authorities. Section 3094, Code 1907; 35 Ala. 70; 73 Ala. 393; 34 Ala. 85; 202 Ala. 43, 79 South. 383. No maritime law exists, giving a lien for material and supplies furnished and work done in the building of a vessel; and this is true as well after her launching as before. 113 Ala. 561, 21 South. 136, 59 Am. St. Rep. 147; 205 U. S. 354, 27 Sup. Ct. 509, 51 L. Ed. 836; 20 1-Iow. 393, 15 L Ed. 961; (D. C.) 17 Fed. 460; 24 Or. 121, 32 Pae. 1040, 41 Am. St. Rep. 838; 173 Fed. 475, 97 C. C. A. 477; 185 Mich. 200, 151 N. W. 660; 61 Fed.. 860. This being true, state courts 'necessarily have the jurisdiction to enforce and fix liens created by their statutes. Authorities supra.</p>

B. Foster, Judge. Action by the May Hosiery Mills against the Munford Cotton Mills for damages for breach of contract. Judgment for defendant, and plaintiff appeals. The action is for the recovery of $2,000 damages for the breach of a contract by which plaintiff purchased from the defendant 30,000 pounds of cotton yarn which defendant agreed to deliver to plaintiff and which it failed and refused to do.

<p>Appeal from Circuit Court, Morgan County; Robt. C. Brickell, Judge.</p> <p>Action by John L. Brock against Speake & Moebes for rent of store premises. Judgment for defendants, and plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.</p> <p>The holding over, without more, rendered the defendants liable for' the full year. There was no need for a written lease. 191 Ala. 333, 67 South. 695. The reserving of rent at a fixed rate per month did not prevent or preclude the complete entirety of the contract. 88 Ala. 510, 7 South. 331; 109 Ala. 143, 19 South. 402; 127 Ala. 570, 30 South. 523, 85 Am. St. Rep. 143; 204 Mass. 18, 90 N. E. 394, 25 L. R. A. (N. S.) 957, 134 Am. St. Rep. 645. Brock did nothing to waive his rights, an'd it is common knowledge that storehouses are not rented for a shorter period than a year. 108 Ala. 440, 19 South. 321; 90 Ala. 115, 7 South. 441.</p> <p>It matters not wliat the contract was as it was abandoned by mutual consent.' 16 R. C. L. 1153; 2 Taylor, L. & T. 94; 66 N. J. Law, 60, 48 Atl. 1026; 204 Pa. 1, 53 Atl. 528, 59 L. R. A. 907, 93 Am. St. Rep. 782; ISO App. Div. 348, 167 N. X. Supp. 871; 56 Minn. 93, 57 N. W. 329.</p>

Petition of J. F. South for certiorari to Court of Appeals, to review and revise the judgment and decision of said court (88-South. 219* 1), rendered on his appeal in an action against him by the First National Bank of Fayette. Unless the conditions are complied with, there is no agreement tp pay. 106 Ala. 561, 17 South. 534; 144 Ala. 166, 39 South. 898; 194 Ala. 672, 69 South. 894. On these authorities the court erred in sustaining demurrers to the pleas.

Manuel Reaves was convicted of murder in tbe second degree, and be appealed to tbe Court of Civil Appeals, which affirmed the judgment (87 South. 705),' and he brings certiorari.

Locke, Judge. Bill by O. C. Hill against Mose Hill to settle and dissolve a partnership. Decree for complainant, and respondent appeals. The original bill of complaint was filed for the purpose of dissolving a mercantile partnership formed by agreement between complainant and-respondent in March, 1911, at Tarpley City, in Jefferson county, Ala., where the business was conducted.

E. Gamble, Jud’ge. v Action by Benjamine F. McMillan against Norma Aiken and another for trespass to land, conversion of certain lumber, and for trover. Judgment for defendants, and plaintiff appeals. The court erred in directing a verdict for the defendant. 110 Ala. 452, 18 South. 215; 146 Ala. 685, 40 South. 323; 144 Ala. 343, 39 South. 74; 186 Ala. 580, 64 South. 787.

L. Brewer, Judge. Bill by Lena Reagan against J. L. Reagan to enforce a vendor’s lien. Decree for complainant, and respondent appeals.

Lloyd Tate, Judge. Action by Mrs. Pearl P. Holmes against the Louisville & Nashville Railroad Company for damages for injuries while a passenger. Judgment for the plaintiff, and defendant appeals. Transferred from the Court of Ap-XDeals under .section 6, Acts 1911, pi. 449. The original summons and complaint was executed June 27, 1918, and alleged the accident to have occurred on or about January 28, 1918. The amendment offered was in September, 1919.

A. Steele, Judge. Ejectment by J. W. Pope against Laura C. Chandler. Judgment for plaintiff, and defendant appeals. Being the widow of Brewster Chandler, Laura Chandler had the right to retain the land. Section 3824, Code'1907; 139 Ala. 270, 35 South. 883. The warranties in the three deeds do not bind the appellant. Section 3824, Code 1907.

<p>Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.</p> <p>Suit by the Alabama Machinery & Supply Company and others against the Douglass Cotton Oil Company and others. Decree for complainants, and defendants appeal.</p> <p>Bill to declare a sale or an assignment as a fraud upon creditors and to annul the same.</p> <p>The appellees, as simple contract creditors of the Samson Cotton Oil, Gin & Fertilizer Company, file their bill against that appellant company to set aside and annul a conveyance by the Samson Company to the Douglass Company of substantially all its property. Several insurance companies ar4 made parties respondent, but no question is raised as to that. The original bill alleges in. substance that at the time the Samson Company became indebted to complainants it owned and was in possession of a large cotton seed gin and manufacturing plant consisting of real estate and personal property worth in the neighborhood of $75,000, and that it continued to hold and own said property until som'e time in the summer of 1918, at which time it pretended to sell and did in fact convey to the Douglass Company all of its property, of the value above set out, for a pretended consideration, of $40,000, and the Douglass Company pretended to buy and did have conveyed to it all this property, claiming a debt against the Samson Company, and the Samson Company, in order to satisfy the debt, sold and conveyed the property in question, and that said sale or pretended sale is fraudulent and void as against complainants because “the consideration in said deed is fictitious and simulated. It is further charged that the conveyance is fraudulent and void as against complainants because the Samson Company sold and conveyed all of its property of any real value to the Douglass Company, in satisfaction of a fictitious and simulated debt, and thus left itself insolvent and utterly unable to pay complainants and its other creditors. It is also charged that it is fraudulent and void because, if it be admitted that the debt of $40,000 claimed by the Douglass Company was bona fide, then the said property so sold was worth a large sum over and above, the debt due the Douglass Company, and by such sale and conveyance the said Samson Company became insolvent and unable to pay its debts. It is further charged that the sale was fraudulent and void as against complainants and was made for the purpose of hindering, delaying, or defrauding the complainant and other creditors of the Samson Company, in the collection of their debt against the Samson Company, It is further charged that, at the time appellant took said fraudulent conveyance, it knew, or had notice, that it was buying from the Samson Company substantially all of its property in payment and satisfaction of a fictitious or simulated debt, and therefore purposely entered into the plan for the purpose of aiding the Samson Company in defrauding its creditors; but, even if the debt was bona fide, the said deed or conveyance was for the sale of substantially all of the Samson Company’s property -to pay a pre-existing, debt at an inadequate price, and that the Douglass Company knew at the timq the deed was made that the property was worth largely more than the price paid for it, and also knew that the Samson Company owed a large amount of debts and was rendered by said sale insolvent and unable to pay the debts. Bill was further amended by adding section 5%, which is the following:</p> <p>Plaintiffs aver that they are informed that the said property conveyed in said deed by the said Samson Cotton,Oil, Gin & Fertilizer-Company to the Douglass Cotton Oil Company was so conveyed as to pay off and discharge a mortgage debt against said property in the sum of about $40,000, and plaintiffs again charge and aver that said debt, although a mortgage debt, and secured by a mortgage, upon the said property so conveyed, the said debt was fictitious and simulated. However, if said debt forming a consideration of said deed made by said Samson Cotton- Oil, Gin & Fertilizer Company to said Douglass Cotton Oil Company was bona fide and justly owing by said Samson Cotton Oil, Gin & Fertilizer Company, and was honestly secured by a valid mortgage upon said property embraced in said deed, yet the said mortgage debt was an antecedent debt, and the said property was conveyed to pay such antecedent debt; and the price at which said property was sold was greatly less than the value of the said property, and the property was worth a large sum of money, to wit, $35,-000 more than the said mortgage debt, and at the time said deed was made all of the parties participating in. said transaction knew that the same rendered the said Samson Cotton Oil, Gin & Fertilizer Company insolvent and unable to pay its debts, and by, making the conveyance of said property in said deed the said Douglass Cotton Oil Company obtained and received property worth ip the neighborhood of $75,000 in- satisfaction of, or by paying, a mortgage debt of about $40,000. The said conveyance is therefore fraudulent and void against the plaintiffs, because the price at which it was bought was inadequate.</p> <p>The fact that a debtor is insolvent and prefers one creditor to another, in the absence of fraud in fact or in law, does not bring the case under section 3739, Code 1907. 98 Ala. 546, 14 South. 550. The fraud must be distinctly alleged and the facts thereof averred. 79 Ala. 370; 110 Ala. 377, 17 South. 935. The amendment in section 5% does not help the matters any. 3 Okl. 204, 41 Pae. 023, 32 L. R. A. 52; 103 Ala. 630, 16 South. 15; 108 Ala. 218, 19 South. 392; 105 Ala. 670, 17 South. 185; 148 Ala. 353, 42 South. 545; 167 Ala. 456, 52 South. 592. It therefore follows that the demurrers should have been sustained.</p> <p>. The trial court properly overruled the demurrers to the amended bill. 98 Ala. 549, 14 South. 550. The insurance companies were properly made parties. 10 Ala. 255; 21 Ala. 271; 131 Ala. 478, 31 South. 20, 56 L. R. A. 461, 90 Am. St. Rep. 95; 124 Ala. 213, 27 South. 475, 51 L. R. A. 112, 82 Am. St. Rep. 159; 32 Minn. 381, 20 N. W. 334; 5 Wall. 513, 18 L. Ed. 524; 129 Ala. 211, 30 South. 579; 194 Ala. 477, 69 South. 916; 111 Ala. 620, 20 South. 640, 33 L. R. A. 264, 56 Am. St. Rep. 76.</p>

Action in detinue by Jesse Sansom against C. N. Speigner for certain personal property, in which a claim thereto was interposed by the Covington National Bank. Verdict for claimant, and plaintiff appealed to the Court of Appeals, which affirmed the judgment (87 South. 406* 1, and the plaintiff petitions for certiorari.

Almon, Judge. Action by I. L. Jackson against G. W. Strickland. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

Action by James W. Sullivan against the North Pratt Coal Company. Judgment for plaintiff was set aside on defendant’s motion, new trial was ordered, and plaintiff appeals. Appellant was injured by a rock which fell upon him from) the roof of appellee’s coal mine, and recovered judgment therefor. The trial court granted defendant’s motion for a new trial, and plaintiff prosecutes this appeal.

C. Brickell, Judge. Action by E. E. Taylor and others, partners, doing business under tbe name and style of Lyle-Taylor Grain Company, against W. H. McClellan, for damages for breach of contract to deliver 2,000 bushels of com. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

Greene, Judge. Action by Leopold Marx against Paul A. Ivy. Judgment for plaintiff, and defendant appeals. Appellee recovered a judgment against the appellant on account of injuries sustained by the plaintiff as a result of being struck by defendant’s automobile on one of the public streets of the city of Birmingham. The complaint contained two counts, one a simple negligence oount and the other a wanton count.

I. Jones, Judge. Bill by C. I. Williams against D. J. Noland to restrain foreclosure of mortgage and for accounting and to redeem. From a decree sustaining demurrers to the bill, complainant appeals.

<p>Appeal from Circuit Court, Jefferson' County; H. A. Sharpe, Judge.</p> <p>Action by the John W. O’Neill Company against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.</p>

C. Brickell, Judge. Bill by Robert Chamblee against J. E. Johnson. Decree for respondent, and complainant appeals.

A. Steele, Judge. Action by A. B. Jones and others against John Sandlin. Judgment for defendant, and plaintiffs appeal. The complaint filed November 14, 1918, by the appellants against the appellee, contained five counts; the first two being common counts, one for money due and the other for money had and received.

J. Martin, Judge. Action by J. C. Cooper against Walker D. Hines, as Director General operating the Nashville, Chattanooga & St. Louis Railway. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. J. C. Cooper, appellee, brought suit to recover damages to an automobile which was wrecked and otherwise damaged by a Nashville, Chattanooga & St. Louis Railway'train at a prablic street crossing in the town of Attalla.

<p>1. Animals 95(2) — Questions involving ownership and possession held properly refused, where neither was in issue.</p> <p>In detinue by the owner to recover a cow eaten up by defendant and held for damages for trespass under Code 1907, § 5890, a question asked the defendant whether he had not gone into the justice court and undertaken to hold the cow, if pertinent as to plaintiff’s ownership and defendant’s possession, was properly rejected, because no such issues were in the case, plaintiff’s ownership', except as affected by the stock law, being freely admitted by the defendant, whose possession was admitted by the plea of the general issue (Acts 1911, p. 33).</p> <p>2. Trial <&wkey;4S — Court was not bound to overrule a question because the offer of proof ' was of matter not responsive.</p> <p>Though plaintiff’s statement of what he expected to proye by a question to defendant showed plaintiff expected an answer not responsive, the court was not bound to assume that the witness would so answer.</p> <p>3. Detinue <&wkey;l7 — Questions, tending to show that defendant’s wife took up plaintiff's cow under estray iaw in defendant’s absence, held competent.</p> <p>In an owner’s action in detinue against defendant, who had taken possession of cow under estray law (Code 1907, § 5890), questions asked the defendant, tending to show that he was away from home, and that his wife in his absence took up the cow, held competent without special plea.</p> <p>4. Trial t&wkey;56 — Rejecting question as to matter already in evidence held not error.</p> <p>In detinue for plaintiff’s co.w, taken up by defendant under estray law (Code 1907, § 5890), a question concerning difficulties between plaintiff and defendant on a prior occasion was properly overruled, where defendant had already stated that for a year or more a bad feeling had existed between them.</p> <p>5. Animáis &wkey;>50(4) — Owner relying on partition fence agreement does not violate stock law.</p> <p>In view of Code 1907, § 5889, giving an owner of premises within a stock law district a lien upon stock for damages caused if negligently or willfully permitted to go at large, and the criminal statute, section 7S13, applying to those knowingly permitting stock to go upon the lands of another without such other’s consent, a landowner, who in good faith relies upon a contract with coterminous owner that the latter shall maintain a portion of the fence, is not liable for trespass because of a defect in the other’s fence.</p> <p>6. Trial c@=39l — Motion to strike not proper, where objection not made at time,</p> <p>AYhere no objection was made when evidence was being elicited, denial of motion to strike the evidence is not error.</p> <p>®c^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>7. Animals &wkey;>5l — Evidence held admissible to show notice of taking up.</p> <p>In owner’s action in detinue for recovery of cow taken up by defendant under the stock law (Code 1907, § 5890), a question asked a witness as to whether plaintiff had told him that defendant’s wife had informed plaintiff that she had taken up the cow was admissible on the issue whether plaintiff had notice.</p> <p>8. Appeal and error &wkey;>l073(7) — Animals c&wkey; 95(2) — Plaintiff appellant may not complain of error doing him no harm.</p> <p>In detinue for plaintiff’s cow taken up by defendant under the estray law, in which plaintiff had given bond and was in possession of the animal, and the judgment was for defendant, the value of the animal and damages should have been assessed undér Code 1907, § 3781, but plaintiff cannot complain of the -omission because it did him mo harm.</p> <p><&wkey;For other eases see same topic anti KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Clifford Fox was convicted of grand larceny. From the judgment of the Court of Appeals affirming the judgment of conviction (17 Ala. App. 559, 87 South. 621), he brings certiorari. Clifford Fox, petitioner here, was indicted under two counts; the first charging grand larceny, and the second charging embezzlement of an automobile.

D. Turner, Judge. Earnest Williams was convicted of murder in the first degree, and he appeals. No brief came to the Reporter. No brief came to the Reporter.

L. Brewer, Judge. Action, by J. S. Bryant against Thomas Ledbetter for trespass to land and for the statutory penalty for destroying trees. Judgment for plaintiff, and defendant appeals. The following are the charges refused to the defendant: (3) Under all the evidence in this case the plaintiff is not entitled to recover under the count for statutory penalty for cutting the timber alleged to have been cut.

A. Steele, Judge. Action by S. A. Kelly against the Altoona Coal Company for damages for injuries suffered while engaged in his employment. Judgment for defendant, and plaintiff appeals.

Buddie McGilvary was convicted of embezzlement, and, conviction having been affirmed by the Court of Appeals (17 Ala. App. 588, 87 South. 409), he petitioned for a writ of certiorari.

I. Jones, Judge. Action by Bob Huggins against the Alabama, Tennessee & Northern Railroad Company for damages lor personal injury. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911,. p. 449, § 6. The complaint on which the case was tried sufficiently appears from the opinion.

<p>Certiorari to Court of Appeals.</p> <p>Petition by Charlie Mote for writ of certiorari to the Court of Appeals to review its judgment (17 Ala. App. 526, 87 South. 628) affirming judgment of conviction of petitioner.</p>

L. Sowell, Judge. Action by John S. Miles, against W. D. Hines, as Director General of Railroads. Judgment for defendant, and plaintiff appeals. The engineer was guilty of negligence in failing to comply with the statutory requirements. Section 5473, Code 1907, and cases there cited. The burden was on a defendant to show a compliance. Section 0476, Code 1907, and cases there cited. As to the duty of those operating trains over a populous crossing, see 16 Ala.

Evans, Judge. Assumpsit by Newman & Heller against S. A. Williams & Co., a corporation. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

<p>Certiorari <&wkey;68 — Supreme Court will not review determination of Court of Appeals on question of fact.</p> <p>The Supreme Court will not, on certiorari, review the determination of the Court of Appeals on a question of fact.</p>

J. Curtis, Judge. Action by Mutie Barton against the Brilliant Coal Company for damages for personal injuries suffered in a mine of the defendant’s. Judgment for the plaintiff, and defendant appeals. Por the pleadings and some of the facts, see former opinion (203 Ala. 38, 81 So. 828).

Bill’ by J. W. Powell and others against Maude Adams, for specific performance, with cross-bill for sale of the land for division among the joint owners. Erom a decree for complainants, respondent appeals.

J. Garrison, Judge. Ejectment by W. L. Washam and others against Wiley Thomas, as tenant, who brought in his landlord, T. J. Beaty. Judgment for the plaintiffs, and defendants ap-. peal. Counsel insist' that under section 4196, Code 1907, there was a discontinuance of the suit by the death of Mrs. Washam.

Brickell, Judge. Action by R. C. Douglass against I. L. Maples. Judgment for plaintiff, and defenclant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Court erred in overruling demurrers to count 3. Section 5334, Code 1907; 83 Ala. 388, 3 South. 769; 169 Ala. 573, 53 South. 797 ; 201 Ala. 593, 79 South. 22; 194 Ala. 489, 69 South. 897; 192 Ala. 274, 68 South. 897; S3 South. 11; 94 Ala. 488, 10 South. 222; 1 Ala. App. 599, 56 South. 22.

Grayson, Judge. Bill by Rolf Seeberg against Peyton Nor-ville and others. From a decree overruling demurrers to the bill as last amended, respondents appeal.

<p>1. Statutes (&wkey;>279 — Workmen's Compensation Act need not be pleaded.</p> <p>Courts take judicial knowledge of the Workmen’s Compensation-Act, which dispenses with the necessity of allegation thereof, so that the mere allegation of a state of facts making the statute applicable suffices.</p> <p>2. Master and servant <&wkey;40I — Complaint against employer must allege exception to Compensation Act.</p> <p>Where a complaint for recovery of damages for death shows that the injuries resulting' in the death arose out of decedent’s employment with defendant, so as to be within the Workmen’s Compensation Act, the complaint must allege facts which bring the employment within one of the exceptions to that act, to be valid.</p> <p>3. Master and servant <&wkey;401 — Complaint against employer must allege nonassent to Compensation Act.</p> <p>Under Workmen’s Compensation Act, § 11, making all contracts of employment presumably subject to the terms of that act unless one of the parties gives'notice to the other of an intention not to be governed thereby, a complaint for injuries to an employee arising out of the employment, so as to be within the act, but -which does not comply with the requirements of sections 21 and 28 for a complaint in cases of dispute as to compensation under the act, must allege nonassent to the act by. either the employer or employee.</p> <p>4. Statutes <&wkey;226 — Legislature presumed to have adopted construction of similar statutes in other states.</p> <p>Where the provisions of the Workmen’s Compensation Acts of other states had been construed with practical unanimity, the Legislature is presumed to have enacted the Compensation Act containing similar provisions with the intention that it should receive the settled judicial construction given it by the other states,' though the question had not been decided in the state from which the act was mainly taken.</p> <p>(S^sPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

K. McMorris, Judge. Action by Chilton County against the Town of Clanton on a contract for street improvement. Judgment for plaintiff, and defendant appeals. The county had no authority to apply its funds derived from that source to the improvement of the streets of a town. Section 215, Const. 1901; 172 Ala. 138, 54 South. 757; 54 South. 763; 173 Ala. 442, 56 South. 131, 274, Ann.

Don Blakey was convicted of distilling whisky. The judgment of conviction was affirmed by the Court of Appeals (17 Ala. App. 581, 87 South. 408), and he brings certiorari.

<p>1. Ejectment &wkey;9(3)— Plaintiff must recover on the strength of his own title.</p> <p>The general rule in ejectment is that plaintiff must recover on the strength of his own, and not on the weakness of the title of his adversary.</p> <p>2. Evidence &wkey;473 — Adverse claimant may testify as to possession.</p> <p>In ejectment where defendants relied on adverse possession, testimony of one of defendants as to the collective fact of her possession for 30 years, the continuons listing of the land for taxes, and payment thereof, was competent.</p> <p>3. Adverse possession <®=^>3I — Hostile possession of land is “adverse possession.”</p> <p>The possession of land under claim of ownership hostile to the title of the true owner is “adverse possession,” and neither the claim of the real title in good faith nor color of title is essential; the actual possession in such case being equivalent to notice.</p> <p>[Ed. Note. — Bor other definitions, see Words and Phrases, First and Second Series, Adverse Possession.]</p> <p>4. Champerty and maintenance &wkey;>7(2) — Conveyance of land in possession of adverse holder without color of title void.</p> <p>Prior to the adoption of Oode 1907, § 3839, allowing statutory ejectment to be brought in the name of the real owner who has obtained his title by conveyance of a grantor not in possession at the time of execution of the conveyance, a deed executed by a grantor out of possession was void as to the adverse claimant, who was in possession, though such claimant had no color of title.</p> <p>5. Adverse possession <&wkey;>63(4) — Champerty and maintenance <&wkey;7(2) — Presumption that grantor remaining in possession holds as tenant by sufferance does not extend to subsequent grantee; conveyance during such possession was void.</p> <p>While Oode, § 3364, declares that the property and possession of a grantor pass as fully by conveyance as if seizin had been formally delivered, and it is the rule that, if a grantor remains in possession, he is presumably but a tenant by sufferance of the grantee, and nothing short of an express disclaimer of such a relation and a notorious assertion of title in himself will be sufficient to change the character of his possession and render it adverse to that of the grantee, that rule does not apply in favor of a subsequent grantee, and, where the grantor remained in possession claiming the property adversely, a conveyance to a subsequent grantee was void prior to the adoption of Oode 1907, § 3839.</p> <p><S=»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests andJndeXes</p>

<p>1. Wills &wkey;j88(3) — Instrument with reservation of use for life held a “deed,” and not a will.</p> <p>Instrument, designated a “deed,” whereby owner of land, in consideration of love and affection and the payment of $1, “do grant, bargain, sell, and convey” the land to named persons, reserving to herself the use and control of the land during her natural life, heló a deed, and not a will, the operation thereof not being postponed until her death.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Deed.]</p> <p>2. Wills <&wkey;93 — Whether instrument is will or deed is governed hy intention of maker, as gathered from the instrument itself.</p> <p>The controlling inquiry, in ascertaining whether an instrument is a will or a deed, is the intention of the maker, which ■ is to be gathered primarily from the language of the instrument itself, except In case of inapt phraseology, in which case proof of instructions given to- the draftsmen in reference to the nature of the paper he was expected to prepare is admissible.</p> <p><fe^>B'or other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>3. Wills <&wkey;93 — Evidence Inadmissible to prove grantor intended deed to be a will.</p> <p>Where an instrument, designated a deed, was in the form of a deed, and made no effort to postpone its operation until grantor’s death, extraneous proof was not admissible to prove grantor’s intention as to whether the instrument was a deed or a will.</p> <p>4. Wills <&wkey;88(l) — Instrument not operative as a deed should be pronounced a will, if possible.</p> <p>In doubtful cases, if a paper can have no operation as a deed, but may as a will, it should be pronounced a will.</p> <p>5. Appeal and error <&wkey;>228 — That appeal from probate court was taken to equity instead of law side in circuit court did not affect court’s jurisdiction, in absence of objection or exception.</p> <p>Where appeal to the circuit court from the probate court was based on the equity instead of the law side of the docket, notwithstanding Code 1907, § 2855, and the court proceeds to hear the case without objection or exception, the appeal from circuit court’s judgment will not be dismissed by the Supreme Court, on the ground that circuit court had no jurisdiction, since the question of whether the case was one of equitable cognizance, or should have been considered a law case, did not go to the general powers of the circuit court to hear and determine it, but merely as to the capacity in which such court did so, in view of the act (Acts 1915, p. 598) whereby the chancery court was merged into the circuit court.</p> <p>dtooFor other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Appeal and error <&wkey;265(3) — Exception unnecessary to review finding of fact by court without jury.</p> <p>Under Gen. Acts 1915, p. 824, no exception is necessary to effect the right to review on appeal a finding of fact by the court trying a civil case without a jury, and there is no inconsistency between this statute and Gen. Acts 1915, pp. 939-941.</p> <p>2. Appeal and error <&wkey;50I (3) — -Record must disclose exceptions to rulings on evidence.</p> <p>Where the bill of exceptions fails to disclose exceptions reserved to rulings on evidence adverse to appellant, the rulings cannot be reviewed.</p> <p>3. Appeal and error <&wkey;l033(9) — Judgment against defendant in ejectment for less area than sued for harmless.</p> <p>Defendant in ejectment cannot complain that judgment was rendered against him for a less area than sued for.</p> <p>4. Deeds @=^42 — Defective description held to convey title to part will described.</p> <p>A deed, describing land as “149 yards and 15 square in northwest corner of east half of southeast quarter” of a certain section, was valid in respect of a description of an area 149 yards square in the corner designated, irrespective of whether the figure “15” in the ' description should be given effect as referring to inches.</p> <p><S=^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>5. Ejectment <&wkey; 150 — General judgment for plaintiff denied defendant’s right to benefit of vaiue of improvements.</p> <p>■Where defendant in ejectment filed a suggestion claiming the value of permanent improvements, a general judgment for plaintiff necessarily carried a denial of defendant’s right to have the benefit of the value of the improvements.</p> <p>6. Evidence t&wkey;568(4) — Opinion evidence as to rental value not absolutely binding on court.</p> <p>In ejectment, the opinion evidence of witnesses testifying to the rental value of the premises was not absolutely binding on the court trying the case without a jury.</p> <p>7. Appeal and error <&wkey;l73(ll)> 932(1)— Claims must be made in trial court; presumptions indulged to support judgment.</p> <p>Where appellant, defendant in ejectment, did not seek on the trial to obtain the benefit of the common-law rule that one in possession, under claim of right, characterized by good faith, may offset the value of permanent improvements against plaintiff’s demand for rents, etc., ho coüld not, on appeal, complain because no such offset was made; and, in support of the judgment, evidence offered of the character and value of defendant’s permanent improvements claimed by him would be referred to his suggestion, under Code 1907, § 3846, claiming the value of permanent improvements.</p> <p>@=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Merrill, Judge. Action by J; W. Browning against J. O. Street, and others, for damages for breach of the condition of an attachment bond made by the defendant as a condition to the issuance and levy of the writ against J. W. Browning. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

J. Garrison, Judge. Suit by Moses Jacobs, Sr., against tbe Goodwater Graphite Company to enforce a vendor’s lien. ' Decree for respondent, and complainant appeals. The ease was submitted on motion of appellee to dismiss tbe appeal because not consummated within tbe time and within the manner prescribed by Gen. Acts 1919, p. 84, and on tbe merits.

<p>Certiorari to the Court of Appeals.</p> <p>Petition by Robert Jordan for certiorari to the Court of Appeals to review a judgment of conviction for receiving stolen goods.</p>

A. Steele, Judge; Bill by Arizona Bolen against A. B. Bolen and A. R. Thomas, for divorce and alimony against A. B. Bolen, and to subject certain lands claimed to be the homestead of the husband and wife to the payment of alimony and attorney’s fee; it being alleged that A. B. Bolen and his son-in-law had conspired together to defeat any decree complainant might obtain by A. R. Thomas claiming the lands.

<p>1. Evidence <&wkey;IO(2) — Judicial knowledge taken as to location of sending and receiving point of telegram.</p> <p>In an action for delay in delivery of death message involving issue as to whether the message was an intrastate or an interstate message, the court will take judicial notice of the physical location of the sending point as situated -in relation to the receiving point.</p> <p>2. States —When state law must yield to federal law.</p> <p>If the federal law in its chosen field of operation will be frustrated, and its provisions refused their natural effect by the state law, the state law must yield to the superior authority of the federal law within the sphere of its delegated and assumed authority, and, if the state law has such direct and incidental effect on the enforcement or the abeyance of the federal law, the state law can have no validity.</p> <p>3. Commerce c&wkey;28 — Transmission of telegram between two points within the state by route through other state held “interstate commerce.”</p> <p>The transmission of a telegram from one point in the state to another point in the state by a route taking it outside of the state held interstate commerce within the Carmack Amendment (U. S. Comp. St. §§ 8G04a, 8604aa), and Act June 18, 1910, § 7, and not intrastate commerce, where the message could not have been transmitted wholly within the state without a physical change in the arrangement of the system of wires and the additional services of another operator, so that the rule of damage in action for negligent delay in delivery was the federal, and not the state, rule.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>®=?For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Almon, Judge. Bill by Charlie Williams against James E. Wilson and others tor an accounting-and for redemption from foreclosure. From a decree sustaining demurrers to the bill, complainant appeals. The demurrers are as follows: (1) There is no equity in the bill because complainant does not show in the bill that he had a right to disaffirm the foreclosure of. the mortgage made exhibits to the bill.

Kyle, Judge. Action by J. T. Wright against H. C. McCord and another for damages for personal injuries. Judgment for defendants, and plaintiff appeals.

E. Gamble, Judge. Action by C. Pope, by his next friend, D. P. Pope, against J. R. Horn, for damages for malpractice. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge. ■</p> <p>Action by Wilbur P. Beasley against James S. Dowdell and others for damages for personal injuries. Judgment for plaintiff, and defendants appeal.</p> <p>The complaint ascribes the injuries of the plaintiff to the negligence of the servant agent, or employee of the defendant, while acting within the line and scope of his authority. The accident occurred in a collision between a motorcycle ridden by the plaintiff and an automobile owned by the defendant, but operated by one Arthur Baldwin, as chauffeur. The evidence tended to show that Baldwin was directed to go to a certain garage, get gasoline, and immediately return to the office. He went to the garage, and got the gasoline, but, instead of returning to the office, went out to West Montgomery, to see a man who he was told was looking for him, and while on his way out the accident occurred.</p> <p>Prom the evidence in this case the chauffeur was acting for himself and in violation of orders from his superior, and therefore the defendant was entitled to the affirmative charge. I-Iuddy on Automobiles, 395; 192 Mich. 624, 159 N. W. 316; 210 S. W. 167; 214 N. Y. 586, 101 N. E. 853, L. R. A. 1916A, 954, Ann. Cas. 1916A, 656. The facts distinguish this case from the case of Penti cost v. Massey, 201 Ala. 201, 77 South. 675. See, also, the former appeal in this case. 17 Ala. App. 100, 82 South. 40.</p> <p>Prom the evidence, it was a jury question whether the chauffeur was acting within the line and scope of his employment. 82 South. 40; 201 Ala. 261, 77 South. 675. Third parties are not bound by secret instructions. 108 Ala. 252, 19 South. 318. The acts of a general agent, within tlio apparent scope of his authority, are binding on his principal. 109 Ala. 498, 19 South. 705; 86 Ala. 398, 5 South. 190, 2 L. R. A. 80S; 31 Cyc. 1582.</p>

P. Alimón, Judge. Action by Irvine C. Porter, as administrator of the estate of L. O. Gulley, deceased, against the Louisville & Nashville Railroad Company, for damages for the death of his intestate while employed as brakeman. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear from the opinion of the court.

Action by Lee & Edwards against the Haas-Pliillips Produce Company, la domestic corporation, on a judgment recovered in 1916 in a circuit court of general jurisdiction in the state of Florida. Judgment for tbe plaintiffs, and the defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

<p>1. Master and servant &wkey;s259(5) — Complaint for mine superintendent’s negligence held insufficient.</p> <p>In an action for death of a coal miner caused by an explosion, complaint under Code 1907, § 3010, subd. 2, and Acts 1911, p. 515, § 40, hold demurrable as not sufficiently setting forth ,the alleged negligence of defendant mining company's superintendent, and as not sufficiently showing or describing in what manner the superintendent was negligent.</p> <p>2. Trial <&wkey;76 — Objection constituting experiment on answer of witness properly overruled.</p> <p>Where plaintiffs asked their witness whether he worked for defendant company, and, after the witness had answered “Yes,” defendant’s counsel objected, the objection was merely experimenting on the answer of the witness, and no error was committed in overruling it.</p> <p>3. Witnesses =&wkey;369 — Testimony that plaintiffs’ witness worked for defendant company admissible.</p> <p>■ In an action for death of a coal mine employee iu an explosion, plaintiffs properly 'elicited from their witness the fact that he worked for defendant company.</p> <p>4. Appeal and error <&wkey;966(2) — Continuance <&wkey;>33 — Question of grant for absence of witness, etc., discretionary, and not reviewable.</p> <p>Question of continuance for absence of a witness and refusal to put plaintiff on admission of showing as to what the witness would testify to was in the exercise of a sound discretion by the trial court, and not reviewable.</p> <p>-Ti-nr other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

W. Harralson, Judge. Action by Ellen Jones, for use of Axie Crutcher, against Walker D. Hines, as Director General of Railroads, operating the Nashville, Chattanooga & St. Louis Railway, for damages for setting out fire. Judgment for defendant, and plaintiff appeals. While it seemed settled that this court will not go behind the finding of the trial judge on facts found by him (16 Ala. App. 583, 80 South. 157; 13 Ala.

Van Wigginton was convicted of murder in the second degree, and his conviction was reversed by the Court of Appeals (17 Ala. App. 651, 87 South. 698), and the State, on relation of its Attorney General, petitions for certiorari to review and revise the judgment of the Court of Appeals.

A. Steele, Judge. Action by Mattie Fail, as administratrix, and another against the Gulf States Steel Company for damages for death of her intestate. Before trial the damages.were settled between the parties, and W. A. Denson, attorney for plaintiff, intervened to recover attorney’s fee. From a judgment for defendant, he appeals.

Kyle, Judge. Action by Mrs. Ellen W. Clark against the Louisville & Nashville Railroad and others. Judgment for the plaintiff, and the defendants appeal. Transferred from Court of Appeals under section 6, Acts 193.1, p. 449. Following charges were refused the defendant: (8) If you believe the evidence, plaintiff is not entitled to recover any damages on account of the weather being cold and the roads muddy on January 28, 1918.

C. Brickell, Judge. Bill by W. H. Johnson against Arthur L. Isom and another to specifically enforce a written contract to convey land. From a judgment overruling demurrers to the bill, respondents appeal. While equity abhors a forfeiture, and time Is not ordinarily of the essence of the contract therein, it may be made so. 25 R. C. L. 256. Time may be made essential by express stipulation, or by implication. Pomeroy’s Equity, § 1408; 33 Ind. App. 434, 70 N. E. 271, 104 Am.

<p>Appeal from Circuit Court, Mobile County; Saifold Berney, Judge.</p> <p>Robert Edwards, alias “Sox,” was indicted for and convicted- of murder in the first degree, and he appealed.</p> <p>The trial court ordered a venire of 80 men from which to select the trial jury, including those drawn and summoned for the regular juries for the week. It appearing that 42 persons had been regularly drawn and summoned, it was ordered that 38 persons be presently drawn to complete the venire. Of the 80 men thus constituting the special venire, only 28 were qualified as competent. It was therefore ordered that the jury box be brought into court, and that 4 names be drawn therefrom and summoned to increase the number competent to try the ease to not less than 30. This being done, it was found that only one of the 4 were competent, whereupon 2 additional names were drawn, and summoned, one of whom was found competent. Prom the venire of 30 thus constituted the jury was selected for the trial of the cause.</p> <p>The following charges were refused to the defendant:</p> <p>(4) If there is a probability of the defendant’s innocence you must find the defendant Not Guilty.</p> <p>(5) The defendant is presumed to be innocent until his guilt is established, and the evidence to induce or authorize a conviction should not be a mere preponderance of probabilities, but should be so strong and convincing, as to lead a reasonable mind to the conclusion that the accused cannot be guiltless.</p> <p>Court was in error in organization of the jury. 12 Ala. App. 237, 67 South. 768; Jury Law, Acts 1919. Court erred in refusing to give charges 4 and 8. 117 Ala. 138, 23 South. 138; 175 Ala. 8, 57 South. 592; 150 Ala. 19, 43 South. 219; 125 Ala. 80, 28 South. 390; 120 Ala. 360, 25 South. 236; 14 South. 409. Counsel discuss other assignments of error, but without further citation of authority.</p> <p>The objections to the jury should have been raised at the time -and comes too late on appeal. 196 Ala. 539, 72 South. 64; 94 Ala. 74, 10 South. 432; 108 Ala. 571, 18 South. 813; 88 Ala. 73, 7 South. 52. It is not necessary that the record show that the jurors last summoned were outside the five-mile limit. 81 Ala. 35, 1 South. 18; 74 Ala. 478 ; 72 Ala. 5; 69 Ala. 159; 22 Ala. 9, 58 Am. Dec. 234. Court properly refused charge 2. 182 Ala. 81, 62 South. 241; 16 Ala. App. 10, 74 South. 846; 4 Ala. App. 29, 58 South. 814. The court properly refused charge 8. 124 Ala. 8, 26-South. 977; 107 Ala. 13, 18 South. 229; 106 Ala. 52; 18 South. 492.</p>

A. Steel, Judge. Action by Charles E. Carpenter against the Gulf States Steel Company for damages for injuries suffered while in its employment. Judgment for plaintiff,' and defendant appeals.

C. Brickell, Judge. - Action by Eva Brown against the Alabama Power Company for damages for injuries to person and property in a collision between a street car and automobile. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. The first count to the complaint is in simple negligence, as is the second.

Pugh, Judge. Action by Whatley & Whatley, a partnership,. composed of G. C. and E. C. Whatley, and S. P. Spurgeon, against W. B. Morgan, for commission on the sale or exchange of real estate. Judgment for plaintiffs, and defendant appeals. An exchange of lots between W. B. Morgan and T. G. Berentz was arranged through the agency of Whatley & Whatley, with knowledge both of Morgan and Berentz that Whatley & Whatley were acting for each in the matter.

Petition by Mary Lou Graves against A. H. Eubank, as Tax Collector, for mandamus to require the said Eubank, as Tax Collector, to receive poll tax of petitioner and issue her poll tax receipt. From a judgment-denying the petition, petitioner appeals.

B. Poster, Judge. / Action by W. P. Hurt against the Southern Railway Company. Judgment for defendant, and plaintiff appeals.

Assumpsit by George W. Fox against the Strand Amusement Company. Judgment for the plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § -6. The action is on two promissory notes executed by the defendant company and made payable to the order of Orchestra, Sales & Supply Company, and indorsed by the payee to the plaintiff.

County; W. J. Martin, Judge. Action by Mrs. J. A. Wright against the American National Insurance Company oh a life insurance certificate issued to Mollie Belle Glaze, in which plaintiff is named as beneficiary. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 499, § 6.

J. Curtis, Judge. Bill by A. B. Aldridge against L. B. Musgrove for tbo sale of certain mineral interest in land among joint owners or tenants in common. Prom a decree for complainant, respondent appeals. The bill did not aver facts sufficient to show that partition in kind was impractica-' ble. 93 Ala. 85, 9 South. 524. Partition in kind was practical under the evidence. 90 Ala. 164, 8 South. 715, 24 Am.

<p>Appeal from Circuit Court, Etowah County; W. J. Martin, Judge.</p> <p>Trespass and trover by T. A. Conwell against J. H. Harden. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.</p> <p>Count A is for trespass by the defendants on one storehouse located at 110- South Fifth street, between Chestnut and Broad, in the city of Gadsden. The third plea of this count sets up that at and prior to the happening of the matters complained of in count A the said storehouse described in the complaint was the freehold of one Robbie K. Smith, and said Robbie K. Smith had the right to the immediate possession of said storehouse, and defendant was a real estate agent, in the employ of the said Robbie K. Smith, and in charge of the said storehouse as her agent, and defendant did the acts' complained of under the command of said Robbie K. Smith, and for the purpose of restoring this storehouse to the possession of said Robbie K. Smith. Count 2 was for the. conversion of one motorcycle, one gas heater and fixtures, and one Tale lock, and count 3 was in trover for the same articles.</p> <p>Defendant was entitled to the affirmative charge as to count A, because defendant proved its plea 3. 183 Ala. 479, 62 South. 874 ; 38 Cyc. 1047; 16 R. C. L. §§ 663, 700. The abandonment of the storehouse as a market was -a forfeiture of the lease and authorized a re-entry. 16 R. C. L. 1144; 17 R. I. 731, 24 Atl. 776, 16 L. R. A. 798, 33 Am. St. Rep. 905; 34 W. Va. 49, 11 S. E. 754, 8 L. R. A. 759, 26 Am. St. Rep. 901; 36 Minn. 80, 30 N. W. 446; 163 Mass. 12, 39 N. E. 409, 47 Am. St. Rep. 434. Counsel discuss other assignments of error, but cite no additional authority.</p> <p>Whether the lease was abandoned or not was a question for the jury. 24 Cyc. 1392. A temporary vacation is not an abandonment. 124 La. 611, 50 South. 598; (Tex. Civ. App.) 180 S. W. 923. There was no error in the charge of the court as to damages. 75 Ala; 407; 37 Ala. 595; 66 Ala. 406.</p>

A. Steele, Judge. Bill by the State of Alabama to condemn a Ford automobile, because used in transporting prohibited liquor. Andy- Allred propounded claim and filed certain demurrers and motions, which being overruled, and the car condemned, he appeals. There must be a seizure of the property before proceedings for confiscation can be executed. 1 Gray (Mass.) 1, 61 Am. Dec. 381; 19 Cyc. 1359; 23 Cyc. 299; 12 R. C. L. 129.

William H. Cutcliff was convicted of assault with intent to mui-dex-, and his conviction was affirmed by the Court of Appeals (17 Ala. App. 586, 87 South. 706), and he brings certiorari. Writ denied.

Merrill, Judge. Ejectment by Emeline House against Lon Clark. There was a directed verdict for the defendant, which, on motion of the plaintiff, was set aside, and new trial ordered, and from this last judgment the defendant appeals.

<p>Appeal from Circuit Court, Jefferson County ; Horace O. Wilkinson, Judge.</p> <p>Application by the State of Alabama, on the relation of W. T. Kemp, for a writ of mandamus to compel M. V. Henry, as Treasurer of Jefferson County, to pay a warrant drawn on him by the Board óf Revenue of said county as payment of salary of petitioner for the month of September, 1920. Erom a judgment granting the writ, respondent appeals.</p> <p>Relator alleges his appointment by the sheriff of Jefferson county as chief deputy sheriff of the Bessemer division, his services as such, and that the board of revenue of Jefferson county fixed his salary in the sum of $250 per month, and ordered a warrant drawn on the respondent in that amount in payment of his services for September, 1920, but the treasurer on demand failed and refused to pay said warrant. The respondent admits the fact set up in petition, but denies that relator is or has been a resident of Bessemer division, and also denies that.he is or has been a qualified elector residing in said division.</p> <p>The statute directs the performance of a certain thing in a certain way, and it cannot be performed in any other manner. 36 Cyc. 1122, 1157; 44 Cent. Dig. § 273. Under the act (Acts 1915, p. 549) the appointee must be a resident of and a qualified elector in the Bessemer division or cut-off. 132 Ala. 43, 31 South. 493, and authorities supra. The county was therefore not liable for his salary. 204 Ala. 463, 86 South. 51; 196 Ala. 481, 71 South. 704; ISO Ala. 639, 61 South. 963; 66 Ala. 187; 53 Ala. 25.</p> <p>The answer was subject to the demurrer. 48 Ala. 414. The presumption is that the Legislature did not intend to make any alteration in the law beyond what is explicitly declared in express terms or by unmistakable implications. 182 Ala. 341, 62 South. 677, 46 L. R, A. (N. S.) 642, Ann. Cas. 1915D, 776. Endlich, Interp. of Statutes, 151. The act cannot be construed as intending to prohibit the appointment of deputies, who are not qualified electors of and do not reside in the Bessemer division.</p>

P. Heflin, Judge. Henry Walker, Jr., was convicted of murder in the second degree, and he appeals. Appellant was indicted for the murder of one W. F. Granger, ‘and convicted of murder. in the second degree, and his punishment fixed at 25 years’ imprisonment. He relied upon self-defense. The deceased, a white man 63 years of age, was, at the time he was killed, town marshal of the municipality of Tarrant City.

Bill by Walter R. Brassell against Jane Porter Brassell for divorce and the custody of the child. Decree for complainant, and respondent appeals. The following is the agreement of counsel referred to: It is mutually agreed by and between the solicitors in the above-stated case, Hill, 1-Iill, Whiting & Thomas and W. A. Jordan, for complainant, and Holloway & Hill, for respondent, as follows: (1) That the demurrers heretofore interposed to said bill are hereby withdrawn.

Greene, Judge. Quo warranto by the State of Alabama, on the relation of D. N. Wright, seeking to inquire by what warrant or authority W. 'T. Kemp holds and exer'eises the office of deputy sheriff of the Bessemer division of the Jefferson circuit court. From a decrée sustaining demurrers to the petition, relator appeals. Counsel discuss the merits of the case on the demurrers, but in view of the opinion it is not deemed necessary to here set them out.

C. Brickell, Judge. Action by R. W. Bennett against the Chase Nursery Company and others for damages for personal injuries sustained in a collision between an automobile and a buggy. Judgment for plaintiff,, and defendants appeal. The appellate court has not renounced its duty to revise verdicts, where grave injustice has been done. 192 Ala. 515, 68 South. 346; 181 Ala. 565, 61 South. 914; 16 Ala.

<p>Appeal from Circuit Court, Walker County; C. P. Almon, Judge.</p> <p>Action by Frank Fergusen against tbe Alabama Power Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals.</p> <p>The case made by the fourth and fifth count is that the defendant owned, operated, and maintained a line of electric wire attached to poles or buildings along and across the public streets in the city of Jasper, and it was the duty of the defendant to maintain its wires high up from said public street, but, notwithstanding this duty, the defendant negligently caused or allowed said wires, to remain on or across one of said streets such a short distance across said highway that the traveling public on said highway were liable to be injured thereby, and that on one occasion, on the 28th day of April, 1919, plaintiff was traveling said highway on a dray loaded with crated merchandise, and that said dray or the load thereon came in contact with or was caught by said wires over said public street, and as a proximate consequence thereof said crated merchandise was caused or made to fall upon or against plaintiff, injuring him as follows:</p> <p>Plea 4 alleges that plaintiff himself was guilty of contributory negligence proximately causing his injuries, in this, that he was riding on a loaded truck under the suspended wire, and either knew, or by tbe exercise of ordinary observation would have known, of the location of said wire, and of the fact that the load on said truck would not pass under said wire, and notwithstanding said fact plaintiff negligently attempted to pass under said wire, and as a proximate result he received his injuries on account of said wire coming in contact with some part of the load on said truck.</p> <p>The other facts sufficiently appear.</p> <p>Plea 4 was good, and not subject to the demurrer. 154 Ala. 616, 45 South. 646; 191 Ala. 628, 68 South. 136; 100 Ala. 377, 14 South. 105; 198 Ala. 590, 73 South. 933; 123 Ala. 46, 26 South. 512; 29 Oyc. 1523. The exception made the basis of th8 fourth assignment was good. 80 South. 882. Counsel discuss the demurrers to the counts of the complaint, but in view of the opinion it is not deemed necessary to here set them out. On application for rehearing, counsel insist that the record properly shows that the demurrers were refiled to the amended complaint and they cite 51 Ala. 74; 132 Ala. 258, 31 South. 81, 90 Am. St. Rep. 907; 120 Ala. 636, 24 South. 927; 76 Mich. 114, 42 N. W. 1119, 15 Am. St. Rep. 293; 2 Ind. 91, 52 Am. Dec. 494 ; 38 Ala. 248.</p> <p>The court properly sustained demurrer to plea 4. 105 Ala. 170, 16 South. 576; 89 Ala. 521, 7 South. 666; 179 Ala. 126, 59 South. 619; 132 Ala. 507, 31 South. 618; 198 Ala. 658, 73 South. 956. Counsel discuss other assignments of error, but ■ in view of the opinion it is not deemed necessary to here set them out.</p>

C. B. Gwin, Judge. Bill by Dominick Liuza against Eugene Parsons to specifically enforce a contract to convey land. From a decree overruling demurrers to the bill, respondent appeals.

L. Sowell, Judge. Action by Tom Spann against the Corona Coal & Iron Company for damages for personal injuries suffered while at work in a mine of the defendant. Judgment for plaintiff and defendant appeals.

Leigh, Judge. Action by J. H. Booker against the Gulf, Florida & Alabama Railway Company for damages for injury to a horse. The complaint, was later amended so as to substitute John T. Steele, as receiver of said Railway, party defendant. Judgement for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

A. Steele, Judge. Action by H. O. Murphree against Jesse Smith in detinue and assumpsit. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. The action was in detinue to recover 200 bushels of peanuts, and also in breach of contract to deliver the peanuts, or rather one-half taken as toll for the use of the machine.

Petition by C. Kuykendall for certiorari to the Court of Appeals to review and revise a judgment of said court (87 South. 878 1), rendered on appeal of petitioner against the state.

Grayson, Judge. Action by the Mobile Drug Company against Obear-Nester Glass Company for damages for breach of contract. Judgment for plaintiff, and defendant appeals. The pleas of the defendant numbered 1 and 2 set out the contract and averred delivery to plaintiff of two cars of the chattels covered by the contract.

D. Turner, Judge. Quinnie Loper was convicted of murder, first degree, and appealed. The ease should be reversed, on the authority of Beech, 203 Ala. 529, §4 South. 753. Wide latitude is allowed in proving conspiracy, and the court was not in error in any of its rulings. 82 South. 574 ; 77 South. 979; 98 Ala. 72, 13 South. 530; 12 Corpus Juris, 634.

Bill by N. J. Greil and' others against Frank Stollenwerck and others to enjoin the obstruction of a street or alleyway. Decree for complainants, and respondents appeal. For the facts not stated in the opinion, see former report of this case, 201 Ala. 303, 78 South. 79. The construction of a contract given by the parties to it will be given effect by the court. 9 Cyc. 588; 70 Ala. 136.

K. McMorris, Judge. Bill by E. E. De Ramus against W. M. De Ramus and others for a sale for division of the proceeds of land jointly owned. From so much of the decree as fixed the amount of the solicitor’s fee payable out of the fund, defendants appeal.

Bill by Minnie L. Barnett, as executrix and trustee under the will of John M. Barnett, deceased, for the purpose of selling for reinvestment a certain house and lot belonging to the estate. From a decree overruling demurrers to the hill, T. E. Martin, as guardian ad litem, appeals.

C. McMorris, Judge. Action by Minnie Pattillo against Mary Holland. Judgment for plaintiff, and defendant appeals. The tenant must be sued, and to take judgment without making the person in possession a defendant is error. 117 Ala. 264, 23 South. 64; section 3838 et seq., Code 1907; Newell on Ejectment, 90 et seq. The court properly called the plea a plea of disclaimant. 148 Ala. 243, 41 South. 840 ; 202 Ala. 266, 80 South. 352.

<p>Appeal from Circuit Court, Coosa County; E. J. Garrison, Judge.</p> <p>Action by Ellis Thomas against the Seminole Graphite Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals.</p> <p>The defendant was entitled to the affirmative charge — first, because it had no custody or control of the warehouse, and was in no way responsible for the condition of the floor; second, because the floor of tile warehouse was not a part of defendant’s ways, works, etc.; third, there was no defect in the floor which caused the accident; and, fourth, appellant discharged his full duty to appellee, since the floor was safe and properly used. In inverse order, the following authorities support the above contentions. 203 Ala. 462, 83 South. 327; 186 Ala. 181, 65 South. 28; 200 Ala. 251, 76 South. 17; 98 Ala. 570, 14 South. 619; 183 Ala. 132, 62 South. 757; 183 Ala. 127, 62 South. 536: 70 Conn. 573, 40 Atl. 462, 41 L. R. A. 200, 66 Am. St'. Rep. 133; 248 Ra. 463, 94 Atl. 136; 205 Pa. 253, 54 Atl. 896; 168 Mass. 395, 47 N. E. 125; 98 N. E. 1029 ; 230 Mass. 423, 119 N. E. 951; 74 N. E. 337; 9 Ga. App. 699, 72 S. E. 64; 139 Ga. 431, 77 S. E. 581; (O. O.) 71 Bed. 143; 118 Mo. App. 163, 94 S. W. 747.</p> <p>The duty of the master to provide a reasonably safe place, and to provide ways, works, etc., that are reasonably safe for the purposes for which they are to be used, is the same, whether owned by the master or hired by him, or procured in some other way, and this duty is nondelegable. 144 Ala. 157, 39 South. 898; 149 Ala. 440, 43 South. 378; 91 Ala. 487, 8 South. 552 ; 6 Ala. App. 423, 60 South. 526; 202 Ala. 369, 80' South. 451; 1 Labatt on M. & S. 172; 128 N. C. 534, 129 N. C. 407, 39 S. E. 43, 40 S. B. 195, 57 L. R. A. 821, and note. On these authorities the court properly submitted the issues to the jury.</p>

K. McMorris, Judge. Petition by Mrs. Sallie C. Nixon and others for the removal of an estate from the probate to the chancery court and a settlement of the same. From decree entered on final settlement, Mary Smith, the administratrix, appeals.

<p>Banks and banking &wkey;80(5) — Failing bank may not pay depositor’s check in exchange for moneys on deposit, having reason to believe that the exchange will not be paid, and where exchange dishonored depositor paying payee of check has rights of unsecured depositor.</p> <p>A bant in failing condition may not on its own motion pay in exchange a depositor’s check drawn against it for moneys on deposit and subject to chock, when by reason of its insolvency at the time of the issue of the exchange the bank had reason to believe the exchange would not be paid; and, where the draft or cashier’s check so issued was not paid upon due presentment, because of the failure of the drawing bank before the exchange reached the bank on which it was drawn, and the payee demanded, and was paid by the depositor after such dishonor, the depositor was restored to his original position as depositor, and entitled to the rights of an unsecured depositor under Const. 1901, I 250.</p> <p><S=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Martin, Judge. Action by Chloe Golson against the W. F. Covington Manufacturing Company and another for damages for death of plaintiff’s minor child. Judgment for the named defendant, after the action was dismissed as against the other defendant, and plaintiff appeals.

Bill by C. Frank Galligher against Ludlow Elmore, as guardian of minors, and another, to quiet title. From a decree for complainant, appeals were separately taken by the defendants.

IC. McMorris, Judge. Bill by the W. T. Rawleigh Company, a corporation, against Frank W. Lull and C. E. O. Timmerman, to enforce judgment lien against tile grantor of respondents and to settle the equities of the party by cancellation of the conveyance from the judgment debtor to the respondent and for general relief. From a decree denying .the relief and dismissing the bill, complainant appeals.

Merrill, Judge. Unlawful detainer by Florence Woods against the Postal Telegraph-Cable Company for a certain storehouse and lot in the city of Anniston. Judgment for defendant, and plaintiff appeals. Affirmed. The contract of lease was between Miss Woods and the Postal Telegraph-Cable Company for a period of two years with the usual terms and conditions.

Petition of Fred Locklear for certiorari to Court of Appeals to review and revise the judgment of said court rendered on the appeal of Fred Locklear against the State of Alabama (17 Ala. App. 597, 87 South. 708).

<p>1. Evidence &wkey;>472(6) — As to whether title had passed out of plaintiff held properly excluded as being for the court.</p> <p>In detinue for an electric elevator installed in defendant’s storehouse by a tenant, it was not error to exclude evidence as to whether title had passed out of plaintiff; that being one of the issues to be tried by the judge without a jury.</p> <p>2. Witnesses <&wkey;268(2)— Cross-examination of plaintiff’s manager to test his knowledge of facts held proper.</p> <p>In detinue for an electric elevator installed in defendant’s storehouse by a tenant, where plaintiff’s manager had testified that plaintiff had never got the company to accept the elevator, and plaintiff himself did not think that it complied with its contract, it was not error on cross-examination tó test witness’ knowledge as to noncompliance with the contract by asking what had been left undone that he thought should have been done. 1</p> <p>3. Fixtures c&wkey;>35(2) — Evidence of rescission of contract between tenant and owner of elevator immaterial.</p> <p>In detinue for an electric elevator installed in defendant’s storehouse by a tenant, evidence as to the rescission of a contract whereby the elevator was installed after defendant had paid the tenant therefor and after he had been ejected held immaterial and properly rejected.</p> <p>4. Appeal and error ¡&wkey;231 (3) — Objection to evidence must state grounds.</p> <p>In detinue for an electric elevator installed in defendant’s storehouse by a tenant, where a contractor was asked as to elevators and their use in installation in buildings, objections to such evidence, not stating grounds, held insufficient to present anything for review.</p> <p>5. Appeal and error <&wkey;1040(l3)— No reversal for errors in rulings on demurrers to special pleas, where defendant entitled to affirmative charge.</p> <p>When the bill of exceptions sets out substantially all the evidence, if it is shown that on the issues made by the complaint and the general issue pleaded defendant was entitled to the general affirmative charge given at his request in that plaintiff was not entitled to recover, though there may have been error in rulings on demurrer to special pleas, the same will not authorize a reversal.</p> <p>6. Fixtures ¡&wkey; 14 — Electric elevator in store building held fixture.</p> <p>An electric elevator, installed in the landlord’s storehouse by a tenant as a substitute for an elevator previously built, the elevator being permanently installed on a ceanent or concrete foundation, the several floor’s through which it passed being materially modified so it could not be removed without injury to the freehold, the elevator was a fixture, no attempt to remove it having been made until after the forfeiture of the lease on the part of the tenant.</p> <p>ig^sFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Petition by Mrs. Lizzie E. Sehoel for mandamus to be directed to Hon. Henry B. Foster, as Judge of the Sixth judicial circuit, requiring him to vacate and annul ah order or decree granting a motion for new trial in the case of Lizzie E. Sehoel against the United Order of the Golden Cross.

Petition by the Munson Steamship Line for certiorari to the Court of Appeals to review and revise its judgment (87 South. 2181, rendered on appeal of the Steamship Line in an action against it by Elliott Drayton.’ Writ denied on the authority of Citizens’ Light, Heat & Power Co. v. Lee, 182 Ala. 561, 62 South. 199.

L. Brewer, Judge. Action begun by A. E. Walker, as Superintendent of Banks, and prosecuted to judgment by bis successor, D. F. Green, against Melton Slaughter and another, upon a promissory note claimed to be owned by the Farmers’ & Merchants’ Bank of Goodwater, which the plaintiff was liquidating. Judgment for plaintiff, and defendants appeal. • The substance of pleas 4, 5, and 6 suffi■ciently appears.

Action by Zada Tidwell, against Luther Patton, in which Phelan Tidwell, as administrator of Zada Tidwell, was substituted as plaintiff. A judgment for plaintiff was reversed by tbe Court of Appeals, and the administrator brings certiorari. Writ awarded, and judgment of the Court of Appeals reversed and cause remanded.

E. Gamble, Judge. Jake Crenshaw was convicted of murder, and he appeals. The question to the witness Robbins, “Did he make a statement?” was error, since» it called for a confession, since all confessions are prima facie not admissible in evidence. 16 C. J. 715, and authorities there cited; 144 Ala. 106, 42 South. 30; 83 Ala. 1, 3 South. 749, 3 Am. St. Rep. 6S2.

Petition by the E. C. Payne Lumber Company for certiorari to the Court of Appeals to review and revise the judgment of said court rendered on the appeal in an action by E. C. Payne Lumber Co. against Mary D. Simpson, 87 South. 876.1 The following are the counts of the complaint referred to in the opinion: Plaintiff claims of defendant the further sum of $990.92 due from her by one order drawn by R. G. Ross on defendant by the name of Mrs. W. H. Simpson, as follows, viz.:…

B. Teasley, Judge. Application by Michael Vincentelli, as guardian of Mary Vincentelli, non compos mentis, for the sale of certain property with reinvestment of the proceeds. Prom a decree granting the relief prayed for, H. B. Puller, as guardian ad litem, appeals.

Locke, Judge. Petition by M. Brody for mandamus to be directed to Hunter Armstrong, as Register in Chancery and Commissioner, to require him to reduce the answers of petitioner to writing in relator’s presence, etc. Decree denying petition, and relator appealed.

<p>1. Pleading &wkey;>20 — Complaint subject to demurrer as alleging act causing death to have been done in alternative.</p> <p>A complaint, in an action for wrongful death under Code 1907, § 2486, alleging that the defendant wantonly, willfully, or intentionally killed the plaintiff’s intestate by shooting him with a gnn, was subject to demurrer as alleging the act to have been done in three alternatives.</p> <p>2. Death &wkey;>47 — Pleading wrongful death held demurrable.</p> <p>A complaint, in an action for wrongful death under Code 1907, § 2486, alleging that the defendant wantonly, willfully, or intention-' ally killed the plaintiff’s intestate by shooting him with a gun, was subject to' demurrer' in that it did not show or infer the act was wrongful, since every averment as to the killing must state that it was done wrongfully or its equivalent, and every alternative averment must state a cause of .action, and an intentional or willful killing by shooting with a gun may be wrongfully or rightfully done.</p> <p>3. Pleading <&wkey;34(4) — Must be construed most strongly against the pleader.</p> <p>Pleadings must be construed most strongly against the pleader.</p> <p>4. Witnesses <&wkey; 129 — Defendant in action for wrongful death may testify as to transactions with decedent.</p> <p>In an action by administratrix for wrongful death under Code 1907. court erred in not allowing defendant to testify as to the acts of himself and deceased at the time of the killing, since section 4007 disqualifies a defendant from testifying when the “deceased person’s estate” is interested in the result of the suit, and section 2486 provides that the damages recovered are not subject to the payment of debts or liabilities of the testator or intestate, but must be distributed according to the statute of distribution.</p> <p>5. Executors and administrators 4&wkey;5l — Suit for wrongful death brought for benefit of distributees and not estate.</p> <p>Suit for wrongful death under Code 1907, § 2486, must be brought by the administrator of the estate, not for the estate’s benefit, but for the benefit of the ‘distributees, and if any damages are recovered the distributees, and not the estate, receive it.</p> <p>6. Executors and .administrators <®^456(3)— Not taxed against estate in action by administratrix for wrongful death.</p> <p>No costs can be taxed against the administratrix as such, in an unsuccessful action for damages for wrongful death under Code 1907, § 2486.</p> <p>7. Trial <&wkey;260 (I) — Charges covered by given charges properly refused.</p> <p>Court did not err in refusing requested charges where the same principles of law were clearly included in the oral or written given charges.</p> <p><2>=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

P. Agee, Judge. Petition by E. D. Willett for mandamus to compel John P. Weaver, acting courity treasurer, to pay his warrant as judge of the court of common pleas. From a decree denying the petition, petitioner appeals. The mandamus. should have been granted on the following authority: 118 Ala. 7, 24 South. 89; 122 Ala. 130, 27 South. 327; 45 Ala. 160; 172 Ala. 160, 54 South. 605; 29 Neb. 76, 45 N. W. 266, 26 Am.

<p>1. Courts <&wkey;!90(8) — Trial of action in unlawful detainer in circuit court on appeal from municipal court is “de novo,” and new complaint or amendment may be filed.</p> <p>Trial of an action in unlawful detainer in the circuit court on appeal from the municipal court is “de novo,” under Code 1907, §§ 4280, 4720, meaning that, subject only to restriction of the claim to an amount or value within the jurisdiction of the municipal court, the trial is had as though the suit originated in the circuit court, and a new complaint or an amendment to the old may be filed by plaintiff, provided, it does not exhibit entire change of parties plaintiff or defendant, and does not show a departure from or change in the original form of action.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Trial De Novo.]</p> <p>2. Courts &wkey;>l90(8) — Amendment of complaint in unlawful detainer,-to claim attorney’s fees and rent to time of trial, properly allowed on appeal from municipal court.</p> <p>In an action in unlawful detainer, tried de novo in the circuit court on appeal from the municipal court, under Code 1907, §§ 4280, 4720, the trial court properly allowed amendment of the complaint claiming attorney’s fees in each of the trial courts and rent to the time of trial, the aggregate amount of which was less than $100; such claims not being based on a new or different caur of action, but being for elements of damage growing out of the original unlawful detainer. When damage is not in itself the cause of action, but is the consequence of a completed breach or wrong, it is proper to estimate and award damages therefor, if duly claimed and proven down to the time of verdict.</p> <p>3. Courts <&wkey;190(3!/2) — By not claiming attorney’s fee in municipal court, plaintiff did not waive riqht to claim it in circuit court.</p> <p>By ,not claiming an attorney’s fee for prosecuting' the suit in the municipal court, plaintiff in an action in unlawful detainer did not waive his right to make such a claim on appeal to the circuit court, under Code 1907, §¡i 4280, 4720, if he deemed it worth while.</p> <p>or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>4. Bills and notes <&wkey;>II0 — Stipulation for payment of reasonable attorney’s fee not invalid, as calling for a penalty.</p> <p>A stipulation for payment of a reasonable attorney’s fee, if the obligee in a contract should employ an attorney to enforce or defend his rights thereunder by reason of the obligor’s breach, is not in the nature of a penalty, and it is competent for contracting .parties, not only to stipulate for a reasonable attorney’s fees to be paid by the maker of a note in the event of collection by an attorney after default, but to fix the amount of the reasonableness of such fee; the prima facie presumption being that an amount fixed by them is reasonable.</p> <p>5. Damages <&wkey;>78(6) — Lease of house to employee by employer is valid in stipulating for liquidated damages for unlawful detainer.</p> <p>A lease by a mining company to an employee of a house used by it in connection with its operations, and intended for occupancy by employees only, stipulating for damages for an unlawful detention by the lessee on the basis of treble the rent contracted for during lawful occupation by him, contained a lawful stipulation for liquidated damages, instead of an unlawful stipulation for a penalty, in view of its terms and the express understanding of the parties.</p> <p>6. Frauds, statute of <&wkey;l 15(4)— Lease executed by lessee binding on him, though not executed for lessor by person authorized in writing.</p> <p>Written lease duly executed by the lessee, '“the party to be charged,” was binding on him under Code 1907, § 4289, though not exe-' cuted for the lessor by any person “thereunto lawfully authorized in writing”; such contracts not being lacking in mutuality and validity', though unilateral as to their enforceability.</p> <p>7. Frauds, statute of &wkey;3,l29(8) — Delivery of possession under lease and payment of rent removed lease contract from statute.</p> <p>If a lease was for more than a year to bring it within the fifth subdivision of the statute of frauds, delivery of possession by the lessor o.r his agent and payment of rent by the lessee removed the contract from operation of the statute.</p> <p>8. Landlord and tenant <&wkey;24(I) — Lease giving right to terminate at pleasure to lessor alone not void.</p> <p>A lease of a house from a mining company to its employee was not void, because giving the lessor company alone the right to terminate it at its pleasure, and withholding such right from the lessee; the lessee’s right to occupy the premises, though subject to such interruption, being a consideration supporting the agreement.</p> <p>9. Landlord and tenant &wkey;>94(3) — Notice by lessor of intention to terminate effectual as in accordance with lease, though day of termination neither beginning nor end of rent period.</p> <p>In unlawful detainer by a mining company to recover premises leased by it to defendant, ,xs employee, notice given by the lessor company to the lessee of its election to terminate the lease, dated October 5, and demanding surrender or possession of the premises on or before October 7, left on October 5 with the person found at the house at the time, the lessee being absent, was appropriate in form and substance, and in accordance with the lease, providing for one day’s written notice to vacate given the lessee in person or by leaving copy on the premises, being effectual to terminate the lease on the day specified, though not the beginning or end of a period for which a rent installment was due.</p> <p>10. Landlord and tenant &wkey;>l09(!)— Option to terminate must be exercised according to intent.</p> <p>The rule that, when option to terminate a lease is granted with the evident intention that it be exercised at the end of a specified interval of tenancy, it must be so exercised, is founded on the intention of the parties, expressed or implied, and cannot be applied in derogation of their intention to the contrary.</p> <p>11. Landlord and tenant &wkey;>29l(2) — Statutory demand for possession served by leaving original on premises.</p> <p>Statutory demand for possession by a lessor under Code 1907, § 4263, in due form, was effectually served by leaving the original paper “upon the rented premises.”</p> <p>12. Landlord and tenant <&wkey;>33 — Increased rent, impliedly consented to by tenant, was modification of lease.</p> <p>Exaction of $7 a month, instead of $6, for two monthly installments of rent, having been impliedly consented to by the tenant, must be regarded as a voluntary modification of the rent provision of the lease, a modification which could be made without affecting other provisions and obligations.</p> <p>13. Landlord and tenant <&wkey;>34(5) — Exaction of excess rent not a repudiation of lease by lessor.</p> <p>Even if an exaction of excess rent for two months was not assented to by the lessee, the overcharge was not a repudiation of the lease by the lessor, and at most gave the lessee right to claim restitution in some proper way, not a right to resist an action of unlawful detainer after due termination of the lease by the lessor by proper notice.</p> <p>iteoFor other cases seo same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

C. B. Gwin, Judge. Bill by R. C. Gross against the Bank of Ensley and others, to annul and avoid a decree formerly rendered in the case of Cross and others against the Bank of Ensley, and for other relief. From a decree for respondents, complainant appeals. The bill makes a strong case of subrogation and contribution. 62 Ala. 404; 26 Ala. 728, 62 Am. Dee. 747; 21 Ala. 705, 56 Am. Dec. 283; 204 Ala. 224, 85 South. 498; 204 Ala. 238, 85 South. 444.

C. B. Gwin, Judge. Petition by the Bank of Ensley and others for the sale of certain lands not involved in a pending suit, in aid of the execution of a former decree of the court ordering the land, together with other lands, to he sold. From a decree granting petition, the adverse parties appeal. The demurrers to the petition shduld have been sustained. 204 Ala. 224, 85 South. 498; 21 Ala. 705, 56 Am.

<p>1. Intoxicating liquors &wkey;>248 — Bill to condemn automobile which did not describe liquors held sufficient.</p> <p>Though Acts 1915, p. 31, defines prohibited liquors and beverages, a bill seeking condemnation of automobile alleged to have been used for transportation of prohibited liquors and beverages is sufficient, and not too general, though not averring' whether they were spirituous, malt, or vinous.</p> <p>2. Intoxicating liquors <g^>247 — Automobile of one who carried liquor in coat as personal remedy may be forfeited.</p> <p>Where plaintiff, for the sake of his infirmity, asthma, carried liquor in his coat while driving his automobile, the automobile nevertheless may be forfeited; prohibited liquor in any event being transported in the automobile.</p> <p>tecFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Wilkinson, Judge. Certiorari by the Birmingham Realty Company against the City of Birmingham to review an assessment for a street improvement levied by the City against the property of the Realty Company. The, City’s motion to quash and annul the certiorari was granted, and the Realty Company appeals.

<p>Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson, Judge.</p> <p>Certiorari by the Birmingham Realty Company against the City of Birmingham. Judgment for defendant, and plaintiff appeals.</p>

<p>I. Vendor and purchaser &wkey;>278 — Vendor’s lien does not become stale until 20 years after due.</p> <p>The vendor’s purchase-money lien note on land doe's not become stale nor its owner guilty of laches as a matter of law until after 20 years from the maturity of the debt, so that bill which alleged that the deed reciting the purchase-money note as part of the consideration had been recorded before the sale by the original purchaser so as to give constructive notice to subsequent purchasers, and that the defendants had actual knowledge of the note when they acquired their interests in the land, is not demurrable for staleness or laches, though it shows the note matured 15 years before suit was brought and assigned no reasons for the delay.</p> <p>2. Vendor and purchaser <&wkey;251 — Condition of payment of note held not to defeat vendor’s lien.</p> <p>A note given for the balance of the purchase money of a tract of land which stated the sum due, and that it was the balance due for the’land purchased, is sufficient to sustain the vendor’s lieu, though the maturity of the debt was conditioned upon the completion of the house then being constructed on the land by the vendor, since that condition did not change the amount of the debt, but merely imposed the burden on complainant to prove compliance therewith.</p> <p><5£^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

A. Steele, Judge. Bill by Sarah Dooley against the administrator of James P. Dooley and his heirs at law to remove the administration of the estate from the probate to the chancery court and there administer the same. Erom a decree overruling demurrers to the bill, Charles T. Dooley, one of the heirs and a legatee under the will, appeals. The general demurrer was good. Section 3121, Code 1907. The widow must either claim under the will or make proper dissent therefrom.

Wilkinson, Judge. Bill by Willie Tutwiler against E. W. Tutwiler for alimony and the custody of a child, but not for divorce. From a decree overruling demurrers to the bill, defendant appeals. Bill by the wife against the husband seeking alimony independent of divorce and also to be awarded the custody of the children.

<p>Appeal from Circuit Court, De Kalb County ; W. W. I-Iarralson, Judge.</p> <p>Bill by O. W. Clayton and others, as trustees, against O. R: Traylor and wife, to correct a description in a deed and to quiet title, with cross-bill by respondent seeking to have certain additions made to the habendum clause of the deed. From a decree granting relief to complainant and denying relief on the cross-bill, respondents appeal.</p> <p>In order to constitute a conveyance, there must necessarily be both grantor and grantee. 9 Oyc. 860; 13 Cyc. 527. Counsel discuss the evidence, but without further citation of authority.</p> <p>No brief reached the Reporter.</p>

Locke, Judge. Bill by James A. Hale and others against Texanna Kinnaird, formerly Texanna Hale, to redeem lands from mortgage foreclosure sale and to sell the same for division. From a decree sustaining demurrers to the bill, complainants appeal. There was equity in the bill. 200 Ala. 596, 76 South. 954.

C.' B. Gwin, Judge. Bill by the State of Alabama, on the relation of Ben G. Perry, one of the solicitors1, to condemn a Hanson automobile, because used in the transportation of prohibited liquors. Harry Byles filed claim thereto, and from a decree condemning the car he appealed.

Locke, Judge. Bill by the Georgia Loan & Trust Company against the Washington Realty Company to quiet title to land, and for other purposes as noted in the opinion. From a decree sustaining demurrers to the bill, complainant appeals. Reversed, rendered, and remanded. The bill contains all the necessary allegations and averments. Sections 5443, 5444, Code 1907. A person out of possession, holding a tax deed, has nothing more than a lien, claim, or incumbrance.

Greene, Judge. Bill by the Board of Revenue of Jefferson County and others, against Leo Kayser seeking to have certain warrants canceled, and held not to constitute a valid claim against the county or its funds. Prom a decree sustaining demurrers to the bill, complainants appeal.

<p>1. Explosives &wkey;7 — Coal mine held not liable for explosion occurring when lump of coal was placed upon fire.</p> <p>A coal mine operator was not liable for personal injuries sustained as a result of the explosion of some explosive negligently left in a lump of coal by employes of the coal mine which was obtained from the mine by the injured person’s husband, there being no privity of contract between the injured person and the coal mine, and it not appearing that defendant was engaged in the sale of coal to the general public, or to retailers for distribution to the public, the coal mine not being a manufacturer in the sense that it was its duty to make inspection of all coal for such an unexpected and unusual danger.</p> <p>2. Contracts <&wkey;>!86(l) — Stranger may recover only in actions ex delicto for breach of duty not arising from contract.</p> <p>A stranger to a contract may recover only in actions ex delicto as for a breach of some duty not arising from the contract.</p> <p>é=x>For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes</p>

Brickell, Judge. Bill by the State of Alabama to condemn certain lands because used in distilling prohibited liquors. Seab Johnson appeared as claimant and filed answer, and from a decree condemning the lands, he appealed. The land constitutes the homestead, had not been alienated, and may not be decreed to be sold without violating section 205. Const. 1901. 201 Ala. 112, 77 South. 406-; 203 Ala. 441, S3 South. 324 ; 204 Ala. 108, 85 South. 382; (C. C.) 25 Fed. 367.

Wilkinson, Judge. Action by John F. Lehman against the Birmingham Machine & Foundry Company for damages for personal injury suffered while in its employment. Judgment for defendant, and plaintiff appeals.

Petition by Leila S. Vaughn (now Torgerson) for mandamus to be directed to Hon. Hugh A. Locke, one of the Judges in Equity of the Tenth Judicial Circuit, requiring him to restore petitioner’s demurrer and answer to a petition filed in said court against her. Petitioner was not in contempt. 162 Ala. 272, 50 South. 218; 151 111. App. 190; (C. C.) 181 Fed. 217; 9 Cyc. 11; 72 Fed. 14, 18 C. C. A. 410; 161 App. Div. 215, 146 N. Y. Supp. 565; 70 Vt. 430, 41 Atl. 435.

Wilkinson, Judge. Action by F. C. Compton against the American Railway Express Company for damages for personal injuries suffered in its employment. Judgment for plaintiff, and defendant appeals. The pleading and the facts sufficiently appear from the opinion of the court, as does the exceptance to evidence.

<p>1. Mortgages &wkey;>603 — Permanent repairs áre “improvements” for which owner must pay on redemption.</p> <p>Within Code 1907, § 5757, requiring any person offering to redeem to pay the person in possession the value of permanent improvements made after he acquired title, a mortgagor seeking to redeem after sale on foreclosure, under section 5746, must pay for permanent repairs of property injured or decayed, which are “improvements” in the sense that they enhance the value of the property above that it would-have if they had not been made.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Improvement]</p> <p>2. Mortgages <&wkey;603 — “Permanent improvements” are those not intended for removal.</p> <p>Within Code 1907, § 5757, requiring any person offering to redeem to pay their value, “permanent improvements” are not necessarily everlasting in character, but are such as rest on or are attached to the soil and are reasonably enduring, not intended for removal.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Permanent Improvement.] -</p> <p>dfc»For other eases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

B. Foster, Judge. Action by H. H. White against W. B. Glenn and others for breach of warranty in a deed as to title, possession, incumbrances, etc. Judgment for defendants, and plaintiff appeals. The facts as found by the court are as follows: On November 19, 1917, the defendant conveyed, together with his wife, the property described in the complaint, to the plaintiff, by a deed which contained the general covenants of warranty; that on January 20, 1908, L. 1\1.

Petition in habeas corpus by Mrs. Susie York for the custody of her minor child, addressed to S. B. Willingham, probation officer. From a judgment denying the writ, the petitioner appealed to the Court of Appeals, which affirmed the judgment (88 South. 218), and the petitioner brings certiorari.

B. Foster, Judge. Bill by F. B. Carroll and others against Mattie Goodman to fix and locate a disputed boundary line. From a decree overruling demurrers to the bill, respondent appeals.

Merrill, Judge. Bill by John Elston- Kay, by his next friend, against L. R. Elston and Eva Elston to declare a will invalid and to remove administration from the probate to the circuit court. From decree rendered on a verdict of the jury finding the will valid, complainant appeals. In cases like this testimony may take a wide range. 119 Ala. 641, 24 South. 459; 19 Ala. 80; 40 Cyc. 1155; 93 Ala. 293, 9 South. 311; 17 Ala. 58, 52 Am. Dec. 164; 52 Ala. 164.

E. Gamble, Judge. Action by Eva P. Garrett, as executor and individually, and others against M. G. Berry for the statutory penalty for cutting or destroying trees. Judgment for defendant, and plaintiffs appeal. Court erred in overruling demurrers to the Xileas. Section 6035, Code 1907; 93 Ala. 150, 0 South. 3S8; 99 Ala. 31, 11 South. 753; 101 Ala. 294, 13 South. 478; 108 Ala. 581, 18 South. 554; 115 Ala. 345, 22 South. 163. No brief came to the Reporter.

<p>1. Chattel mortgages &wkey;262(l)— Sale held properly set aside.</p> <p>Where the mortgage gave no authority to the mortgagee to purchase at his own sale, a foreclosure sale at which the mortgagee was the purchaser, and at which much of the mortgaged property was not present, some of it being in the adjoining county, and at which all the property was sold en masse for a lump sum, was properly set aside and annulled, and the mortgagor allowed to exercise his equity of redenrption.</p> <p>2. Appeal and error &wkey;977 (I) — Rehearing held discretionary.</p> <p>Denial of respondent’s application for rehearing on ground of absence from court when the case was called, and that the decree entered was inequitable and unjust, held' within the unrevisable discretion of the chancellor.</p> <p>3. Reference <&wkey;>63 — Proof properly excluded of matters not in issue under the order of reference.</p> <p>Where respondent on reference attempted to offer proof before the register concerning matters not embraced within the chancellor’s order of reference, the register properly disallowed proof of such independent matters, which were not made an issue in the case, the respondent having contented himself with a mere general denial by way of answer, whereas the matters offered to be proven on the reference were such as were required to be brought forward as affirmative defenses in the answer or in some instances by way of cross-bill; it being immaterial that some of these independent matters were set up in respondent’s answer to complainant’s interrogatories.</p> <p>&wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

E. Gamble, Judge. Bill by J. V. G. De Priest against John W. Turner to establish a disputed boundary line. From a decree overruling demurrers to the bill, respondent appeals. The court erred in overruling the demurrers. Subdivision 5, § 3052, Code 1907; section 143, Const. 1901; Section 3255, Code 1007; 130 Ala. 570, 30 South. 563; 195 Ala. 518, 70 South. 145; 204 Ala. 269, 85 South. 386.

<p>I. Equity &wkey;j356 — Deere reversed when record shows no note of testimony.</p> <p>Under Acts 1919, p. 1071, § 11, requiring proceedings to condemn stock food to be tried as a case in equity, the decree will be reversed when the record discloses no note of the testimony as required by chancery rule 75.</p> <p>2. Courts &wkey;>40 — Statement of trial judge after loss of control over case not considered.</p> <p>AVhere there was no note of the testimony as required by chancery rule 75, a written statement of the trial judge, four months after the decree and three months after his loss of control over the case, could not be looked to, even assuming that it would change the result if considered.</p> <p>3. Appeal and error <&wkey;77(I) — Decree in proceeding to condemn stock food is appealable.</p> <p>Acts 1919, p. 1071, gives jurisdiction of proceedings to condemn stock food to the circuit court in equity in a general way, and not to the judge to be exercised in a summary manner different from the ordinary exercise of the general powers of the chancery court, and the decree of condemnation is final and appealable under Code 1907, § 2837, authorizing appeals from any final judgment or decree of the chancery courts.</p> <p>©c^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Petition of the Sovereign Camp of the Woodmen of the World, for certiorari to tho Court of Appeals, to review and revise the judgment rendered on the appeal of Sovereign Camp, Woodmen of the World, v. Mrs. L. A. Dennis, 17 Ala. App. 642, 87 South. 616. Counsel discuss the points made in his application, but in view of the opinion it is not deemed necessary to set same out.

Kyle, Judge. Action by Earnest Orr against the Decatur Box & Basket Company for damages for injuries suffered while in its employment. Judgment for defendant, and plaintiff appeals. The counts state the employment by the defendant of the plaintiff in its box-manufacturing plant and the placing of plaintiff to work at a machine .having a lever which was used for the purpose of holding the blocks in place while being sawn.

Bill by Mary G. Taber against John S. Whiteman, to redeem certain property from a mortgage foreclosure sale, and to settle and adjust all the rights and equities between the parties. Decree for complainant, and respondent appeals. For the facts in this case, as well as the pleadings, see former report in 203 Ala. 496, 83 South. 595. Complainant was without right to redeem, being the assignee of the assignee.

<p>!. Highways <&wkey;l30 — Board of revenue of Jefferson county could only pay one-half of road tax to city of Birmingham.</p> <p>Despite act of February 19, 1887 (Laws 1886-87, p. 847), particularly section 6, and act of March 3, 1903 (Terry’s Local Laws of Jefferson County, p. 626), under Gen. Acts 1S8(C85, p. 709, and Acts Sp. Sess. 1909, p. 304, as to one-lialf of the road tax collected on property in the city of Birmingham under the act of 1885, the board of revenue of Jefferson county was without discretion, control, or right of disposal thereof, and could only pay it over to the city as prescribed by the act of 1909.</p> <p>2. Mandamus <&wkey;l00 — Proper remedy for city against board of revenue relative to disposition of road taxes.</p> <p>Where, under Gen. Acts 1884-85, p. 709, and Acts Sp. Sess. 1909, p. 304, as to one-half of a road tax collected under the act of 1885 on property in the city of Birmingham, the board of revenue of Jefferson county was without discretion or right of disposal, but could only pay it over to the city as prescribed by the act of 1909, mandamus is the city’s prop-, er remedy to compel the board so to'do.</p> <p><&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Kyle, Judge. Action by Cleveland F. Franks against the Louisville & Nashville Railroad, for damages for personal injuries while engaged in its employment. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

Action by the State of Alabama against the Maryland Casualty Company, for breach of a bond given by the Thoele-Phillips Manufacturing- Company, to secure its contract for the hire of convicts from the state of Alabama. Judgment for plaintiff, and defendant appeals. The first counts declare on breach of the bond setting forth the contract and the bond and alleging various breaches of the contract and the bond.

Foster, Judge. Bill by Amanda J. Caraway against Henry A. Jones and others, to declare a mortgage foreclosure void, to' hold said Jones as a trustee, and, in the alternative, to redeem. From a decree overruling demurrers to the bill, defendant Henry A. Jones appeals. Complainant, appellee, filed the bill in this cause against Henry A. Jones and others.

Pugh, Judge. Action by Thomas L. Dollar against Walker D. Hines, as Director General of Railroads, operating the Alabama Great Southern Railway Company, for damages for personal injuries received while in its employment. Judgment for the plaintiff, and defendant appeals.

A. Steele, Judge. Action by R. L. Hood and E. B. Raley against Isom Warren and others for deceit in the sale of certain hogs, in which the declaration was amended during the progress of the trial by striking Raley as a party plaintiff thereto. Judgment for -the defendants, and plaintiff Hood appeals. There was nothing but the general issue pleaded, and the partnership did not have to be proved.

A. Steele, Judge. Bill by J. H. Martin against R. L. Hood to enforce a lien upon certain crops and for an accounting, etc. From a decree overruling demurrers to tbe bill, raising the point of a want of equity in the bill and adequacy of legal remedies, respondent appeals. Under the averments of the bill, the relation of landlord and tenant is clearly set forth. Section 4742, Code 1907. The parties are neither tenants in common nor joint owners of the crop.

Locke, Judge. Bill by Mrs. S. E. Webb against M. Slaughter to redeem from mortgage foreclosure sale. From decree overruling demurrers to the bill, respondent appeals. Copeland and wife executed a mortgage tc Steiner Bros, upon certain land situated in Jefferson county, the mortgage being for the sum of $1,250, which Steiner Bros, foreclosed on August 30, 1918, purchased at the sale, and afterwards conveyed the property to M. Slaughter.

Merrill, Judge. Action by the State of Alabama to condemn an automobile because used in transporting contraband liquors. W. G. Senior propounded claim to said automobile, and appeals from an order of condemnation. Counsel discuss the evidence and the sufficiency of the bill, but they cite no authority in support of their contentions. No brief came to the 'Reporter.

Wilkinson, Judge. The City of Birmingham filed petition for mandamus to be directed to the Board of Revenue of Jefferson County, seeking to require them to pay to the City its proportionate part of the road tax collected within the corporate limits of the City. From an order granting the writ, respondent appeals.

<p>Appeal from Gircuit Court, Pickens County; Robert I. Jones, Judge.</p> <p>Bill by Josephine Stewart against T. E. Stewart to cancel and annul certain leases. From decree overruling demurrers to the bill, the respondent appeals.</p> <p>The lease was for certain lands therein described which had been previously conveyed by J. E. Stewart, the husband, to Josephine Stewart, and runs for six years, or from 1st day of January, 1920, to and including the 31st day of December, 1925. Tiie lease was executed to T. E. Stewart by J. E. Stewart and Mrs. Josephine Stewart. The consideration was $4,000 divided into different payments for the benefit of J. E. Stewart, together with cash paid to him. Bill alleges the annual reasonable value to be $4,000 per annum. In reference to the duress it' alleges that complainant became sick and unable to attend to business, and that while so sick and incapacitated in Franklin, Tenn., her husband came there and coerced her into signing said lease. The 'bill further alleges that she did not sign the lease in her capacity as owner, but only as the wife of said J. E. Stewart and,therefore it is not binding on her for that reason.</p> <p>The general demurrer that there is no equity in the bill is the proper method to get this equity. Section 3121, Code 1907; 17 Ala. App. 429, 85 South. 595. The averments of fraud are not sufficient. 201 Ala. 150, 77 South. 574; 13 Ala. 475; 56 Ala. 468; 72 Ala. 456; 75 Ala. 363; 102 Ala. 424, 15 South. 247; 202 Ala. 202, 79 South. 574. This is true as to the statement of coercion. Authorities supra. It is not charged that T. E. Stewart knew of the coercion, and hence it would not affect his rights acquired under the lease. 66 Ala. 600; 69 Ala. 92; 73 Ala. 387; 154 Ala. 117, 45 South. 231. The exhibit answers the charge, and contradicts the recital as to how complainant signed. 130 Ala. 297, 30 South. 347; 127 Ala. 103, 28 South. 654 ; 52 Ala. 167.</p> <p>No brief reached the Reporter.</p>

Turner, Judge. Demus Beech was convicted of murder in the first degree, and he appealed. The defendant together with two Lopers .was jointly indicted for killing James M. Turner. The other facts sufficiently appear from the opinion of the court.

Action by Maude W. Brewer, as administratrix of the estate of Willis Brewer, deceased, against A. D. Rich and others for damages for the death of her husband. There was judgment for the defendants which on motion of the plaintiff was set aside and new trial granted, from which order defendants appealed. The action was for the wrongful death of Willis Brewer by wrongfully shooting him with a gun. The defendants were A. D. Rich, Joe Baltzer, Jack James, and Charley Varner.

E. Gamble, Judge. Ejectment by Sam W. Coker and others against 3. A. Hughes, as tenant, and Irene Talliaferro, as landlord. Judgment for defendants, and plaintiffs appeal.

Bill by J. M. Simpson against the Grand Bay Land Company. Judgment for complainant, and respondent appeals. The complainant forfeited all right to commissions by acting in bad faith. 88 Ala. 640, 7 South. 108, 7 L. R. A. 605, 16 Am.

<p>1. Master and servant <&wkey;228(2) — Contributory negligence inapplicable to parent’s count for wrongful employment of minor.</p> <p>In a suit by a father for death of a minor son employed by defendant, a plea of contributory negligence is properly allowed as answer to counts under the Homicide Act, but the plea is not a proper answer to a count resting upon-employment of the son in dangerous work without plaintiff’s consent.</p> <p>2. Appeal and error <&wkey;>!078(l) — -Assignments of error not insisted upon in briefs not discussed.</p> <p>It is not necessary that the appellate court discuss assignments of error not insisted upon in brief or argument of counsel.</p> <p>3. Parent and child <&wkey;7(!4) — Instruction as to knowledge constituting assent to employment of minor child held proper.</p> <p>In an action by a father for injuries to his minor son, under and by reason of employment by defendant of the son in dangerous work without plaintiff’s consent, an oral charge that, if it was brought home to plaintiff’s knowledge that his son was working for defendant, and he did nothing, he thereby assented to the employment, held proper.</p> <p>4. Parent and child <&wkey;7(3)— Minor son must be in discharge of duties when killed to warrant recovery by father on ground that employment was without his consent.</p> <p>In a suit by father for death of minor son by reason of employment by defendant of the son to engage in dangerous work without plaintiff’s consent, plaintiff could not recover simply because defendant ■ employed the son without his consent, hut the son must be injured while in the discharge of the duties at which he was employed or placed by the defendant.</p> <p>other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>5. Parent and child &wkey;>7( I) — Injury to plaintiff’s son held not to grow out of employment.</p> <p>In an action by father to recover for death of minor son alleged to have been employed by defendant to engage in dangerous work without plaintiff’s consent, death of boy when he left his place of business as wood chucker and went 300 or 400 yards, where men were cutting trees down, and wanted to shoot craps with them, held not to grow out of his employment.</p> <p>6. Trial <&wkey;267(l) — Adding to requested instruction held not reversible error.</p> <p>Under Acts 1915, p. 815, requiring requests to charge to be given in terms requested, the giving of a requested instruction that it is unlawful to employ a minor in dangerous work without the consent of the parents, and then giving in addition definition of consent, held not reversible error, when the entire charge, both oral and written, asserts the law governing the facts in evidence.</p> <p>(§zs>For other cases see same topic and KET-NUMBER in all Key-Numbered Digests and Indexes</p>

J. Garrison, Judge. Action by Jacob Moon by his next friend against Walker D. Hines, Director General of Railroads, operating the Central of Georgia Railroad Company. Judgment for defendant, and plaintiff appeals.

M. Miller, Judge. Action in unlawful detainer by the Galloway Coal Company against Harry Eddins, first brought in justice’s court. Judgment in circuit court for plaintiff, and defendant appeals. In this case the lease was verbal, and was made on Sunday, as appears from the opinion.

■ Appeal from Circuit Court, Shelby County; E. J. Garrison, Judge. Action in unlawful detainer by the South.ern Coal '& Coke Company against Wiley Allen. Judgment for plaintiff, and defendant appeals. Proposition (1). The court erred in overruling the motion of defendant to dismiss said cause on the ground of disqualification and incompetency of the justice of the peace who heard and determined the same.

Appeals from Circuit Court, Bibb County; B. M. Miller, Judge. Actions of unlawful detainer by the Galloway Coal Company against John Dubose and others. From judgments for plaintiff, defendants appeal.

<p>Appeal from Circuit Court, Shelby County; E. J. Garrison, Judge.</p> <p>Action in unlawful detainer by the Southern Coal & Coke Company against Ed Allen. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Shelby County; E. J. Garrison, Judge.</p> <p>Action in unlawful detainer by the Southern Coal & Coke Company against Sam McSpadden. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Shelby County; E. J. Garrison, Judge.</p> <p>Action in unlawful detainer by the Southern Coal & Coke Company against Jesse Benton. Judgment for plaintiff, and defendant appeals.-</p>

<p>Appeal from Circuit Court, Shelby County; E. J. Garrison, Judge.</p> <p>Action in unlawful detainer by the Southern Coal & Coke Company against Charley McClendon. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Shelby County; E. J. Garrison, Judge.</p> <p>Action in unlawful detainer by tbe Southern 'Coal & Coke Company against Eli White. Judgment for plaintiff, and defendant appeals.</p>

M. Miller, Judge. Unlawful detainer by the Roden Coal Company against J. H. Watkins. .Judgment for plaintiff, and defendant appeals. See abstracts of brief sot out in the case of William Johnson v. Bloeton-Cahaba Coal Co., post. p. 373, 87 South. 559, and in Thornton Cleveland v. Little Cahaba Coal Co., post, p. 369, 87 South. 567.

M. Miller, Judge. Action.in unlawful detainer by tbe Little Oababa Coal Company against Thornton Cleveland, in justice court.

<p>Appeals from Circuit Court, Bibb County; B. M. Miller, Judge.</p> <p>Action in unlawful detainer by the Roden Coal Company against J. R. Reach. Erom judgments for plaintiff, defendant appeals.</p>

Appeals from Circuit Court, Bibb County; B. M. Miller, Judge. Action in unlawful detainer by the Little Cahaba Coal Company, against Charles Bradford and others. From judgments for plaintiff, defendants appeal.

<p>Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.</p> <p>Action in unlawful detainer by the Bloc-ton-Cahaba Coal Company against William Johnson. Judgment for plaintiff, and defendant appeals.</p> <p>This is one of a number of cases in which the coal operators sought to dispossess miners of the houses occupied by them and held under lease from the coal company; miners having gone and ceased to work for the coal company. The lease contract is as follows :</p> <p>“State of Alabama, County of Bibb</p> <p>“This indenture, made and entered into this the 16th day of November, 1919, by and between the Blocton-Cahaba Coal Company and William Johnson, witnesseth: That in consideration of a rental of six and no/10o dollars per month, to be paid by the said William Johnson on the 15th day of each month, the said Blocton-Cahaba Coal Company does rent to William Johnson house No. 98 at Coleanor so long as the said William Johnson continues in the employ of the said company.</p> <p>“Said house to be used by said William Johnson as a dwelling only, and not to be sublet. Peddlers, solicitors for the sale of goods, or other persons objectionable to the officers of the said Blocton-Cahaba Coal Company, shall not be allowed on the premises.</p> <p>“For any violation of the terms of this agreement the said Blocton-Cahaba Coal Company may immediately terminate this lease, and immediately take possession of the said premises, and a waiver of one breach of this contract by the Blocton-Cahaba Coal Company, shall not operate as a waiver of other breaches.</p> <p>“The said William Johnson hereby expressly 'waives the thirty days’ notice to vacate,' or any other notice to'vacate, that the Blocton-Cahaba Coal Company would otherwise be required to give. Blocton-Cahaba Coal Co.,</p> <p>“By E. C. Parnell.</p> <p>“William Johnson.”</p> <p>The notice to vacate is as follows:</p> <p>“Tour possessory interest in house No. 98, located at Coleanor, Ala., and belonging to the Bloeton-Cahaba Coal Co., is hereby terminated, effective July 26, 1920, and according to the terms of the lease you are hereby notified to surrender possession of said house and inelosure in which said house is located to the Bloc-ton-Cahaba Coal Co., or its agent, on or before the said date, or legal steps will be taken to dispossess you thereof.</p> <p>“Bloeton-Cahaba Coal Co.,</p> <p>“By W. E. Henley, V. P.”</p> <p>This notice is dated July 23, 1920.</p> <p>On July 27, 1920, the following notice was served on defendant:</p> <p>“Possession of house No. -98, at Coleanor, Ala., and the premises appurtenant thereto, heretofore rented to you by the Bloeton-Cahaba Coal Company, and now occupied by you as a residence, are hereby demanded of you by said company; your possessory interest therein having terminated. Railing to deliver possession within 10 days from receipt of this notice, an action of unlawful detainer will be instituted against you to recover possession of said house and premises, and for damages for the detention thereof, and in such event your household goods may be sold to satisfy the judgment rendered in such proceedings.</p> <p>“Bloeton-Cahaba Coal Co.,</p> <p>“By IV. E. Henley, V. P.”</p> <p>There was no proof of Parnell’s right to execute the lease in behalf of plaintiff, except that given him by Vice President Henley, and its introduction wa's error. 181 Ala. 368, 61 South. 951; 153 Ala. 322, 45 South. 157; 7 Ala. 283, 42 Am. Dec. 592 ; 8 Ala. 333; 5 Nev. 224; 10 Cyc. 906. The lease was a lease for the calendar year. Section 4732, Code 1907. No authority is shown in Henley to terminate the lease. 153 Ala. 138, 45 South. 51; 142 Ala. 609, 38 South. 662; 18 A. & E. Enc. of Law, 394, and authorities supra. No authority is shown in Henley to give notice to terminate the tenancy. Authorities supra. It is not shown that a re-entry is made before bringing the suit. 169 N. T. 381, 62 N. E. 425; 18 A. & E. Enc. of Law, 448; 2 Bouvier, 525; See, generally, 2 Tiffany, L. & T. 1751, and authorities there cited.</p> <p>The written lease was properly admitted in evidence. 100 Ala. 431, 14 South. 281; 36 Ala. 351; 159 Ala. 462, 49 South. 76; 108 Ala. 252, 19 South. 318; 105 Ala. 629, 17 South. 109; 163 Ala. 55, 50 South. 113; 166 Ala. 616, 52 South. 81, 139 Am. St. Rep. 50; 59 South. 584; 80 Wash. 489, 141 Pac. 1147, Ann. Cas. 1916B, 306; 16 R. C. L. 1108, 1111, 1112; 24 Cyc. 1339; 27 Iowa, 269; 37 W. Va. 778, 17 S. E. 299; 52 Red. 268, 3 C. C. A. 76. The notice terminating defendant’s possession, referred to as the first notice, was properly admitted in evidence. 80 Ala. 537, 2 South. 438; 156 Ala. 458, 47 South. 256; 155 Ala. 250, 46 South. 564; 26 N. C. 291, 42 Am. Dec. 123; 2 Taylor’s L. & T. 56; 108 Mass. 150, 11 Am. Rep. 328; 48 Barb. 551; 1 K. B. 1902; 24 Cyc. 1332. The second notice was properly admitted. Authorities supra. The collection by the plaintiff of $7.75 per month, instead of $6.75, for the months of April and May, did not annul the lease. 167 Ala. 597, 52 South. 887; 9 Ala. App. 178, 62 South. 567; 17 Ala. App. 263, 84 South. 311; 99 Ala. 436,12 South 61; 93 Ala. 126, 9 South. 598. Under these authorities, court did not err in giving the affirmative charge for the plaintiff.</p>

<p>Appeals from Circuit Court, Bibb County; B. M. Miller, Judge.</p> <p>Action by the Blocton-Cahaba Coal Company against Lee Martin and others. From judgments f-or plaintiff, defendants appeal.</p>

Green, Judge. Suit by W. J. Yielding against D. C. Ball and others, as members of the Board of Revenue of Jefferson County, to enjoin them from paying certain expenses incident to the operation of automobiles by the officers of the county. From a decree denying the injunction, complainant appeals. Injunction is the proper remedy. 157 Ala. 327, 47 South. 703; 189 Ala. 198, 66 South. 98; McQuillin, Municipal Corporations, §§ 2590 and 2596.

Merrill, Judge. Action by C. M. Sims against the Alabama AYater Company. Judgment for defendant, and plaintiff appeals. The ordinance referred to appears as a part of count 6, as follows: “Sec. 1094. AVater Service: AYhen Unlawful to Cut Off.

Locke, Judge. Bill by Kinzea Stone, filed originally against A. E. Walker, Superintendent of Banks, and afterwards amended as against D. P. Green, as Superintendent, to rescind and cancel a- contract of subscription for stock'in the Jefferson County Bank, whose affairs were then being administered by the Superintendent of Banks. Prom a decree granting relief, the Superintendent of Banks appeals, and complainant files cross-appeal.

Action by the Cleveland Lumber Company against'Thomas Worthington. A judgment for plaintiff was affirmed by the Court of Appeals (17 Ala. App. 613, 88 South. 156), and defendant petitions for certiorari.

Jones, Judge. Bill by A. M. Johnson, Jr., against John Craft and others constituting the Alabama State Highway Commission, to enjoin the issuance of the good roads bonds. Held: the places where said terms of court are held, shall be connected with each other.

<p>Wilis <&wkey;6!7 — Bequest held only of life estate.</p> <p>Under a will, “I bequeath unto S. all of my property .of every description, personal, real and mixed, during her natural life only,” S. took a life estate only which was'not changed by subsequent clause: * * * All money left after the death of S. to be divided as follows: Three-fourths of the amount to go to L., E., and L. A., share and share alike.”</p> <p>(ScsFor other oases see same toitic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Mortgages <&wkey;3l9(2) — In an ejectment action against mortgagors after foreclosure, admission of evidence of other advances by mortgagee to explain that-credits did pay mortgage, held proper.</p> <p>In an action in ejectment, where the defendants had owned the land which had been sold under foreclosure of a mortgage which defendants claimed had been paid before foreclosure, and where the mortgage was given for advances, hold that the court did not err in permitting the mortgagee to prove other debts, and the taking of other securities as explanatory of credits for the purpose of showing that the mortgage had not been thereby paid.</p> <p>2. Evidence <&wkey;>376(5) — Plaintiff’s statement that he believed account was correct, and had gone over items with defendant who did not object, held admissible.</p> <p>In an ejectment action involving the question whether the defendant mortgagors had paid the mortgage given for advances before foreclosure, where an account between mortgagors and mortgagee was involved, it was not error to refuse defendants’ motion to exclude plaintiff’s testimony that the account was correct where witness merely stated that he believed the account was correct, and the court let it in as a witness’ statement that he had gone over the account with the defendants, who did not object to it.</p> <p>3. Evidence <&wkey;2l9(l) — Listing of account against mortgagors in mortgagee’s bankruptcy does not affect one to whom mortgagee had mortgaged the land after purchasing it at foreclosure sale.</p> <p>In an ejectment action against mortgagors, defended on the ground that the mortgage had been paid before foreclosure, where the land, on foreclosure sale, was bought by one of the members of the mortgagee firm, and mortgaged to the plaintiff bank, it was not error to sustain an objection to a question to a witness that the account was listed in the bankrupt court, purchaser having gone into bankruptcy, since it may have been listed without the knowledge or consent of the bank, and such listing could not affect the bank’s security.</p> <p>4. Trial <&wkey;253(5) — An instruction as to mistake in executing mortgage held erroneous as ignoring fraud.</p> <p>In an ejectment action against mortgagors who claimed payment of mortgage before foreclosure, an instruction that if defendants thought they were signing a mortgage of $350, instead of $950, the jury should find for defendants, was properly refused, because it pretermits any fraud on the part of any one in causing the defendants to so think.</p> <p><Sfe>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Bxickell, Judge. Ejectment by Richard J. Shafer against J. N. Brown, in possession, in which William Kinney, as landlord, intervened. Judgment for plaintiff, and defendants appeal. The court erred in directing a verdict for the plaintiff. 184 Ala. 184, 63 South. 1011; 184 Ala. 610, 64 South. 321; 185 Ala. 591,' 64 South. 317; 199 Ala. 639, 75 South. 293. Court erred in admitting the patent in evidence. 16 Ala. App. 149, 75 South. 825.

<p>I. Municipal corporations cj&wkey;705(IO) — Pedestrian crossing street and placing himself in danger held negligent.</p> <p>A pedestrian attempting to cross a street who, without necessity, placed himself in a position of danger from defendant’s motor truck, through inadvertence, forgetfulness, inattention, absent-mindedness, or carelessness, was guilty of contributory negligence barring his recovery, if such negligence proximately contributed to cause his injury.</p> <p>2. Municipal corporations <&wkey;>705(IO) — Pedestrian on city streets has right to assume street, is reasonably safe.</p> <p>A pedestrian on city streets has the right to assume, unless he has knowledge or reason to believe to the contrary, that the street is in a reasonably safe condition for travel.</p> <p>3. Municipal corporations <&wkey;705( 10)— Excuse of pedestrian for forgetfulness must be apart from inattention itself.</p> <p>The cause given by a pedestrian as excuse for his momentary forgetfulness on the street, resulting in his injury from a defect in the street, or from a passing automobile, must be something apart from inattention itself if he is to escape the imputation of contributory negligence.</p> <p>4. Municipal corporations &wkey;>705( 10)— Pedestrian cannot rely on money matters as excuse for forgetfulness to look.</p> <p>A pedestrian who, in attempting to cross a street, was struck by defendant’s motor truck, cannot rely, as an excuse for his forgetfulness to look for approaching motor cars, after passing in front of a street car, on the fact that he was thinking of money matters, being on the way to the bank.</p> <p><gx^>For other cases see same topic and KEY-N (JMBER in all Key-Numbered Digests and Indexes</p>

A. Pearce, Judge. Action by the' Elba Bank & Trust Company against the Mutual Life Insurance Company of New York, in which defendant filed an interpleader, bringing in Eva C. Marsh as a party. From a judgment in favor of the bank, the latter appeals. Under the interpleader all equitable defenses may be tried and all equitable titles are available. Sec. 6050, Code 1907; 168 Ala. 270, 53 South. 182.

<p>Appeal from Circuit Court, Madison County; Robt. C. Brickell, Judge.</p> <p>Petition by the State of Alabama, on the relation of its Solicitor, against Joe B. Davenport, Tom Scotti, and one Oakland touring car, to condemn said car because transporting illegal liquors. From a decree condemning the car, respondents appeal.</p> <p>No brief came to the Reporter.</p> <p>The owner had such notice of the use to which the car was being put; such information, which was followed up, would have resulted in knowledge, and therefore the car was properly condemned. Acts. 1919, p. 6.</p>

Kyle, Judge. Bill by J. W. Holliday against B. F. Wood and others to quiet title to land and to correct a deed. From a decree overruling demurrers to the bill, respondents appeal.

Wilkinson, Judge. • Action by J. L. Ward against J. A. Meadows. Judgment for defendant, and plaintiff appeals. The appellant, Ward, sued appellee, Meadows, for damages for injuries received by him in a collision between himsqlf and the defendant’s automobile. The collision occurred in a public highway known as Juniper avenue in the city of Birmingham. The complaint contained three counts.

Kyle, Judge. Bill by Marion L. Robertson, against Harry Parker and Sarah Blomberg, as executors of the last will and testament of George H. Parker and as legatees under the will, for the removal of the estate from the probate to the chancery court, sale of the properties for division, filing of proper inventories, and final settlement of the estate. From a decree rendered, respondents appeal. The expressed intention of the testator must not be defeated.

<p>1. Deeds &wkey;>l05 — Deed to married woman and named children, also in trust for after-born children, an express conveyance to each grantee.</p> <p>A conveyance to a married woman and her named children, also in trust for such children as might be born of the woman, the habendum clause providing the land was to .be held by the parties of the second part and their heirs forever, and also in trust for such children as •might be born of the woman, did not limit the interest of the grantee woman to a life estate, and as trustee for the named children as remaindermen, being an express conveyance to each grantee jointly and in fee simple, subject to have their respective interests diminished by subsequently born children, for whom title was to be held in trust by the existing grantees.</p> <p>2. Deeds <&wkey;105 — Husband’s deed to wife and children to be born of her included children of subsequent marriage.</p> <p>A husband’s deed conveying land to his wife and her named children, also in trust for such children as might be bom of the wife, conveyed to all children to be born to the wife, including those of a« subsequent marriage after her husband’s death.</p> <p>3. Partition <&wkey;77(4) — -Where bill averred land could not be divided, and answer admitted averment, and proof established it, the decree of sale for division must be affirmed.</p> <p>Where bill to sell land for division among joint owners averred the land could not be equitably divided between the owners, and that a sale would be to the interest of the minor owners, which averment was admitted by the answer and established by the proof, decree of sale for division must be affirmed.</p> <p><S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Clay County; E. J. Garrison, Judge.</p> <p>Bill by Martha Carmichael against C. W. McKay and another to cancel and annul a deed and that the title be vested in oratrix in fee simple. From a decree overruling demurrers to the bill, respondents appeal.</p> <p>The bill is as follows:</p> <p>(2) Oratrix states, charges, and avers that she is the widow of Calvin Carmichael, who died intestate in Clay county, Alabama, in the year, to wit, 1910, leaving surviving him your oratrix, his widow, ten sons, viz. Moses, Edmund, Thaddeus, Macolm, commonly called Macon, Milos. James, Taulbert, Prince, Artemus, and Warren Carmichael, and three children of his deceased son George, viz. Anna Pitts, Bama Ware, and Nancy Pryor.</p> <p>That said Galvin Carmichael died intestate, as aforesaid, and left no property except the 120 acres of land, the subject of this suit, and which is described as follows, viz. the north half of the northeast quarter and the southwest quarter of the northeast quarter of section 1, township 22, range 5, in Clay county, Alabama.</p> <p>(3) Oratrix states, charges, and avers that the said land hereinabove described was the only estate left by said Calvin Carmichael, as above set forth, and that the same was duly and regularly claimed by her and was set apart to her and said AVarren .Carmichael by the probate court of Olay county, Alabama, in a proceeding therein had on petition filed by her for having said property set apart to her as hers in fee simple according to the statutes in such cases made and provided; but oratrix is informed and believes, and therefore on such information and belief states the fact to be, that her solicitor in- this suit searched for the file and record of such papers and proceedings in having the said land set aside, in the probate office of Clay county, Alabama, on Thursday, February —r-, 1920, and such papers could not be found, nor the record thereof; hence she is unable to make such papers, or any part thereof, .an exhibit to this bill.</p> <p>(4) Oratrix further states, charges, and avers that the said land was set apart to this oratrix and her son AVarren Carmichael, because of the fact that said Warren was a minor at the time of the death of his father but was of age when said land was so set apart; and oratrix was informed that said laxd should be set apart to both of them, but has since been informed that said AVarren was not a proper party in said proceedings, and that he obtained no right or title to the said land by said decree setting same apart, but that the entire fee-simple title was vested in your oratrix.</p> <p>(5) Oratrix further states, charges, and avers: That after the said land was so set apart she and said Warren sold the timber on said land, and that when Edmund and Thaddeus Carmichael learned of such-timber sale they employed the respondents herein, viz. the firm of McKay & Crumpton, attorneys, of Ash-land, to recover for them what they claimed as their part of the timber money. That said Mr. McKay came to the home of this oratrix and represented to her and to said AVarren that he had been employed by said Edmund and others, and that it was the law that they owned part of the land, and that said proceeding setting apart the same to this oratrix was a void proceeding, and unless they, oratrix and said Warren, gave to him the part of the timber money for the other heirs, he would have them arrested for false swearing, in said proceedings in said probate court. Oratrix states, charges, and avers: That she had known the • said McKay since his infancy, and had great confidence in his words and representations; that he represented to this oratrix that he would not do anything at all to take any of her land, nor would he. let his clients, “the boys," take any part of her land. That by fraud, deceit, and artful wiles and misrepresentations the said McKay obtained from said AVarren Carmichael part of the money gotten from the sale of the timber, and also stated that ho would have his partner, Mr. Crumpton, the other respondent herein, who is also a notary public, come down and get her to sign a deed, but that the signing of said deed would only have to do with the timber sale money, and would not in any way interfere with the title of this oratrix in the said land. That this occurred some time in the year 1919, and to the best recollection of oratrix in the late spring of said year. That after the visit of said McKay, and probably a week or two later, the said Crumpton came clown to the home of this oratrix and presented said Warren and this oratrix with a deed to sign, representing and stating that said deed was in regard only to the timber sale, and that oratrix and said AVarren had sworn'falsely in regard to their homestead proceeding in the probate court of Clay county, Alabama, and unless they, said oratrix and AVarren, signed the said deed, he would have them prosecuted for such false swearing and would be sure to win such prosecution. That he gave no consideration at all for the said deed, nor was any consideration of any kind given to this oratrix or the said Warren; nor did said Crumpton read over the said deed to her, nor inform her of its contents, although she requested same to be done, other than to tell her it related only to the timber sale. That said deed was not, up to February 26, 1920, recorded nor filed in the probate office of Clay county, Alabama; hence oratrix cannot state with more certainty what it contained, nor attach a copy herewith as an exhibit. That oratrix is an old and ignorant colored woman, unable to either read or write, and acting solely on the representations and statements of the said McKay and Crumpton she signed the said papers presented to her by said McKay and Crumpton, having been told by them that such papers related only and solely to the said timber sale, and had nothing to do with the land.</p> <p>(6) Oratrix further states, charges, and avers that on, to wit, September 1, 1919, the said McKay and Crumpton, claiming to represent Edmund Carmichael and various other complainants, filed a bill in this court, alleging the said complainants and respondents named in said bill were the owners of the said land, that the same could not be equitably divided among the joint owners thereof, and praying that the said land be sold for a division of the proceeds thereof ambng the joint owners, a copy of which said bill is hereto attached, marked Exhibit A, and prayed to be taken as a part hereof, with leave of reference thereto; that said oratrix was not made a party to the said bill in any manner, nor was notice of same given to her; that during the course of the said partition proceedings a sale of the said property was ordered, the sale was made on, to wit, February 23, 1920, and the said property deeded to said C. W. McKay and A. L. Crumpton; that the price bid for said property, and at which it was' sold, was grossly inadequate to its value, and that no testimony was taken in said proceedings to show the value of the same, the price at which it was sold having been, to wit, $160, nor was the value of said land alleged in the said bill, a copy of which is hereto attached, marked Exhibit A; that at the sale of said property the said C. W. McKay, by misrepresentations, deceit, and fraud, prevented prospective buyers from bidding on said' property.</p> <p>(7) Your oratrix further states, charges, and avers that the said firm of McKay & Crumpton was not employed by any of the parties to the said bill for partition to file the said bill, nor ask for a sale of the said property, but filed the said bill and carried on the said proceeding without having been in any manner employed to do so by any of the parties to the said bill, or any of the owners or alleged owners of the said land, and in the belief of this oratrix was filed, by them solely for the purpose of buying in the said property for greatly less than its value, which they finally did.</p> <p>Prayer. The premises considered, oratrix prays that the said C. W. McKay and A. L. Crumpton be made'parties respondent to this bill of complaint in the manner provided by law and by the rules of this honorable court; that process of subpoena issue to them, commanding and requiring them to plead, answer, or demur to the same within the time required by law, or that, failing therein, a decree pro confesso may be rendered against them; and on the final hearing hereof oratrix prays that the said deed hereinbefore referred to as having been obtained from this oratrix and said Warren Carmichael by fraud as aforesaid, and the said sale of said property in said partition proceeding, and the deed made in pursuance thereof, may be canceled, rendered void, and removed as clouds on the title of this oratrix to the said property, and that the entire title to the said property may be invested, in fee simple, into this oratrix. And if in anything oratrix is mistaken in her prayer for relief, then she prays for such other, further, and more general relief as to which in equity and good conscience she may be entitled, and as to your honor may seem meet and proper; and as in duty bound she will ever pray.</p> <p>Footnote. — The respondents are required to answer every material allegation in the foregoing bill of complaint, from paragraphs 1 to 7, inclusive; but answer under oath is hereby expressly waived.</p> <p>Exhibit A to Bill.</p> <p>State of Alabama, Clay County.</p> <p>To the Honorable Hugh D. Merrill, judge oí said court, sitting in equity, humbly complainant, your orators, Princes Carmichael, Edmund Carmichael, Moses Carmichael, Thaddeus Carmichael, Malcomb Carmichael, Artemus Carmichael, Anna Pitts, Bama Ware, and Nancy Pryor, respectfully show and make known unto your honor, the following facts, to wit:</p> <p>(1) That Anna Pitts, Bama Ware, and Nancy Pryor reside in the state of Tennessee, that the other orators live in the state of Alabama, and that all of the above-named orators are over the age of 21 years and of sound mind.</p> <p>(2) That Warren Carmichael and Tolbert Carmichael are each over the age of 21 years and reside in Clay county, Alabama, and are of sound mind; that James Carmichael and Miles Carmichael are each over the age of 21 years and of sound mind, and reside somewhere in the state of Georgia, but that the correct address of said persons is unknown to orators.</p> <p>(3) That orators and said Warren D. Carmichael, James Carmichael, Miles Carmichael, and Tolbert Carmichael, who are hereinafter referred to as respondents, own jointly the following described property, to wit: The northeast quarter of the northeast quarter, the northwest quarter of the northeast quarter, and the southwest quarter of the northeast quarter of section 1, township 22, range 5.</p> <p>(4) That each of said parties has the following interest in said property, to wit: Bama Ware, Anna Pitts, and Nancy Pryor each own an undivided Vs 3 interest, and each of the other complaiiiants and respondents own an undivided Vn interest.</p> <p>(5) That said property cannot be equitably divided among the joint owners thereof without a sale for the division of the proceeds among said joint owners.</p> <p>(6) That it was necessary for complainants to employ a solicitor to aid them in the proceedings to sell said property for a division* and they have employed McKay & Crumpton, practicing solicitors, of Ashland, Alabama, to represent them in said proceedings, and that said solicitors should be paid a reasonable fee for their said services.</p> <p>The premises considered, orators pray that Warren D. Carmichael, James Carmichael, Tolbert Carmichael, and Miles Carmichael be made parties respondent to this bill, and that notice issue to them as required by law and the rules of this court, and that on final hearing your honor will make and enter a decree ordering the said above-described property sold for division among the joint owners thereof, ascertaining the amount of the interest of each party, and that your honor will order a reference to determine the amount of the solicitor’s fee which should reasonably be paid orators’ solicitors, and will order that said amount be-taxed as costs and paid as other costs in this cause. And if orators have not prayed for the proper relief, they ask such other, further, additional relief, general or special, may be granted them as may to the court seem meet and proper, and orators will ever pray, etc.</p> <p>McKay & Crumpton, Sols, for Complts.</p> <p>Respondents filed exceptions to that part of paragraph 3 of the bill which states the loss of the records in the probate court, all of paragraph 4, paragraph 5, paragraph 6, paragraph 7, and Exhibit A to the bill, and also demurrers setting up nonjoinder of parties complainant, in that Wairren Carmichael should have been made a party, that the bill is multifarious in seeking to amend a decree of probate court, and in seeking to change a decree to which respondents are not parties, and for other reasons stated in the opinion.</p> <p>The exceptions were well taken and should have been sustained. 119 Miss. 410, 80 South. 119. There was a nonjoinder of parties complainant. 187 Ala. 165, 65 South. 381; 129 Ala. 214, 29 South. 920; 107 Ala. 163, 18 South. 247; 10 Ala. 149; 16 Cyc. 185. The bill is multifarious. 165 Ala. 144, 51 South. 755, 29 L. R. A. (N. S.) 819, 138 Am. St. Rep. 19, 21 Ann. Cas. 1102. The charges of fraud were insufficient. 72 Ala. 207; 76 Ala.. 347; 201 Ala. 150, 77 South. 574; 16 Cyc. 231.' The bill will be construed more strongly against the pleader. 201 Ala. 150, 77 South. 574.</p> <p>No brief reached the Reporter.</p>

Wilkinson, Judge. Bill by the W. D. Wood Lumber Company against the First Colored Cumberland Presbyterian Church and others to enforce a materialman’s lien. Decree for complainant, and respondents appeal. The lien is of statutory origin, dependent in this case upon a valid contract with the owner or proprietor. 57 Ala. 598; 117 Ala. 589, 23 South. 526. The evidence fails to support this allegation. 78 Ala. 228.

<p>1. Weights and measures &wkey;>l I — That only one . of 22 sacks was under weight would have been a strong circumstance that there was no intent to deceive.</p> <p>In action to condemn,22 sacks of feedstuff on the ground of being under weight under Acts 1919, p. 1069, § 11, and Acts 1919, p. 88, § 2, the fact that 21 of the sacks were practically correct, and that only one was nine pounds under weight, would have been a strong if not a conclusive circumstance that there was no intent to deceive or defraud.</p> <p>2. Weights and measures &wkey;>ll — Evidence of underweight held to prove intent to deceive.</p> <p>In state’s action to condemn 22 sacks of feedstuff as being under weight' in violation of Acts 1919, p. 1069, § 11, and Acts 1919, p. 88, § 2, evidence that 21 out of the 22 sacks purporting to weigh 100 pounds each were under weight in the aggregate of 100 pounds held sufficient in the absence of evidence to the contrary to prove the intent to deceive or defraud.</p> <p>other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>. Appeal from Circuit Court, Madison County; Robt. C. Briekell, Judge.</p> <p>Bill by Will Crutcher against Prances Jones and others to reform a description in a deed. The bill was amended by making Sallie L. Stewart, who held a mortgage against Will Crutcher on the land, a party complainant, seeking also to reform the mortgage description. Prom a decree overruling demurrers to the bill, respondents appeal.</p> <p>This jurisdiction is exercised with great caution. 136 Ala. 443, 34 South. 911; 102 Ala. 406, 14 South. 760; 82 Ala. 570, 1 South. 897; 70 Ala. 85; 34 Cyc. 905. The bill does not meet the requirements. 147 Ala. 472. It is presumed that the conveyance as executed is the final agreement of the parties. 121 Ala. 485, 25 South. 766. Mrs. Stuart is presumed to have known of the alleged mistake there being no allegation to the contrary. 139 Ala. 378, 35 South. 1022, 101 Am. St. Rep. 38. The court will not indulge inferences from the pleadings, in order to supply deficiencies in the bill. 158 Ala. 338, 47 South. 1017; 189 Ala. 48, 66 South. 598.</p> <p>The bill was sufficient in all its aspects. 195 Ala. 568, 71 South. 92; 201 Ala. 579, 78 South. 923; 151 Ala. 141, 43 South. 864; 21 Ala. 252 ; 34 Cyc. 910. It is not necessary to request correction of description before filing bill. 74 Ala. 499 ; 201 Ala. 282, 78 South. 58. There was ample consideration. 148 Ala. 353, 42 South. 545; 8 Cow. (N. Y.) 406; 4 Wend. (N. Y.)'301; 34 Cyc. 929. Defects of form will not be considered on general demurrer. 202 Ala. 442, 80 South. 826.</p>

J. Curtis, Judge. Action by the State of Alabama, on the relation of its pirosecuting attorney, to condemn an automobile because used in transporting prohibited liquors, with claim by Luard Glover. From a judgment of condemnation the claimant appeals.

P. Almon, Judge. Bill by J. E. Mitchell against the Northern Alabama Railroad Company to enjoin the obstruction of a ditch or drain. From a decree overruling demurrers to the bill, defendant appeals. The pleadings are construed more strongly against the pleader, and the bill must be construed as a whole. 171 Ala. 274, 55 South. 185; 163 Ala. 141, 50 South. 241; 162 Ala. 665, 60 South. 300.

<p>I. Mechanics’ Hens <&wkey;260(3)— Evidence held to show that limitations had run against claim for heating plant to be paid for in 30 days.</p> <p>In a bill against a realty company and its trustee in bankruptcy to enforce a material-man’s lien for a heating system furnished for defendant’s hotel building, wherein the six months’ statute of limitations (Code 1907, § 4777) was interposed as a defense, evidence held to sustain a finding that the apparatus furnished was to be paid for within 30 days of its delivery, so that the claim was barred, notwithstanding that the whole account was not to fall due until a certain time within six months before commencement of suit.</p> <p>other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>2. Mechanics’ liens &wkey;>2l I (I) — Acceptance of note waives materialman’s lien.</p> <p>Acceptance of a note by a materialman operates as a waiver of tlie ¡materialman’s lien under the statute.</p> <p>3. Mechanics’ liens i&wkey;260(3) — Furnishing extra flange for pump in heating system held not to make contract a continuous one.</p> <p>In a materialman’s suit ’to enforce a lien for a heating apparatus for a hotel building, •where the six months’ statute of limitations was interposed as a defense, the mere furnishing of an extra flange for a rotary pump which was an essential part of the heating system held not to make the contract a continuous one so as to bring it within the statute of limitations, where the price of the flange had been included in the original bill.</p> <p>4. Mechanics’ liens 4&wkey;26Q(3) — If there is sufficient time between items to file lien, it will be presumed that they belong to separate contracts.</p> <p>In proceedings to enforce a materialman’s lien, if there is a hiatus between the items furnished sufficiently to permit the filing of a lien, the presumption is that the items belong to separate contracts.</p> <p><fc»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes</p>

<p>Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.</p> <p>Bill by Henry J. Martin as Guardian, etc., for Forney Todd and another, against Maggie Moore, to review a former decree because of error apparent and newly discovered evidence. From a decree sustaining demurrers to the bill, complainants appeal.</p> <p>The following authorities are relied on to show that the court was in error in sustaining demurrers to the bill. 136 Ala. 354, 34 South. 905, 96 Am. St. Rep. 26; 21 South. 490; 154 Ala. 346; 45 South. 715; 97 Ala. 458, 12 South. 48; 79 Ala. 319; 69 Ala. 65; 39 Ala. 428 ; 10 Ala. 667. Sims, Chan. Prac. 630. There is error apparent of record in the decree attacked. Section 3347, Code 1907; 54 South. 272; 110 Ala. 254, 20 South. 99, 55 Am. St. Rep. 26.</p> <p>The complainant has assumed with knowledge a particular position, and is now es-topped to assume an inconsistent one. 136 Ala. 354, 34 South. 905, 96 Am. St. Rep. 26; 133 Ala. 642, 32 South. 573; 132 Ala. 667, 32 South. 683; 118 Ala. 441, 24 South. 428;-16 Cyc. 796. The newly discovered testimony does not give it equity. 16 Cyc. 530; 131 Ala. 90, 31' South. 594; 130 Ala. 653, 31 South. 451.</p>

J. Harris, Special Judge. Action by Randolph Sandlin and others against James A. Anders and wife in unlawful detainer. Erom adverse rulings on the evidence, plaintiffs took a nonsuit, with bill of exceptions, and appeal.

T. Lowe, Judge. Petition for writ of prohibition by R. W. Cowart to 'prevent J. A. Thornhill from exercising the powers and duties of a justice of the peace. From decree granting the petition, respondent appeals. Transferred from Court of Appeals, under section 6, Acts 1911, p. 450. If respondent was not an officer, as alleged in the petition, then prohibition is not the remedy. 32 Cyc. 600, 620 ; 22 R. C. L. par. 18; 131 Ala. 670, 29 South. 191; 134 Ala. 549, 33 South. 339.

W. Harralson, Judge. Bill by R. F. Lyons and another against W. Y. Jacoway. Prom a decree denying relief,' complainants appeal. A sufficient tender was made. 165 Ala. 206, 51 South. 744. The whole decree was erroneous under the facts of the case. 132 Ain. 128, 31 South. 92; 186 Ala. 514, 65 South. 151; 200 Ala. 377, 76 South. 293; 199 Ala. 566, 75 South. 1; 176 Ala. 122, 57 South. 472 ; 95 Ala: 463, 10 South. 638; 180 Ala. 8, 60 South. 98; 199 Ala. 101, 74 South. 239.

Clair County; Woodson J. Martin, Judge. Bill to quiet title by J. G. McGill against Buel Taylor, who filed a cross-bill. Prom a decree for complainant dismissing the cross-bill, defendant appeals. Respondent had a materialman’s lien. Section 4754, et seq., Code 1907; 70 Ala. 587; 63 Ala. 225; 63 Ala. 338; 78 Ala. 592; 88 Ala. 500, 7 South. 194.

<p>Appeal from Circuit Court, Limestone County; O. Kyle, Judge.</p> <p>Charley Carter was convicted of murder in the second degree, and he appealed.</p> <p>The party killed was Dave Robinson, and his brother testifying, stated that lie had a conversation with Dave before the doeter examined him, in which Dave stated that he was going to die. The doctor then examined him, and told him that there was not a chance for him, and Dave then made a statement to the doctor in presence 'of witnesses. The witness was then permitted to detail the statement made. The witness Jarrett testified that he did not see the shooting, but that he saw the defendant and the deceased about five minutes after the shooting, and that the defendant and his brother were trying to get the deceased to stand up. The solicitor asked the following question, “To refresh your recollection, didn’t defendant say to deceased, ‘God damn you; stand up; you can walk?’ ” This was objected to because leading. Objection being overruled, the witness answered, “I think the way he said it was, ‘You damn fool; stand, up.’ ” The defendant then moved the court to exclude the answer, as it was immaterial and irrelevant and because not an answer to the question put to him.</p> <p>Dr. Allen stated that two or three hours after the killing he had a conversation with the defendant, in which he said to the defendant, “Charley, I am sorry this happened.” To which the defendant did not reply. Witness then said, “Both of you got my sympathy,” and defendant replied, “See, you don’t know a thing about it.”</p> <p>The witness Louise Roberts stated that she was eight years old; that she believed in a good place and a bad place hereafter; that she went to Sunday school; and if she told a lie she would go to the Bad man.</p> <p>The following charges were refused to the defendant:</p> <p>(4) “The presumption in this case is that the defendant is innocent until the state has proven beyond all reasonable doubt that he is guilty, and if the jury have a reasonable doubt, growing out of the evidence, as to whether he was sufficiently sober to form a specific intent to take life, then the jury cannot find the defendant guilty of murder.”</p> <p>(5) “Unless you believe from the evidence, beyond a reasonable doubt, that the defendant fired the shot intentionally that killed deceased, you should find the defendant not guilty.”</p> <p>■ (6) “If the shot that killed deceased was accidently fired, then you cannot convict the defendant.”</p> <p>(11) “The burden is on the state to show that the killing of the deceased by this defendant was intentionally done.”</p> <p>(13) “I charge you that it was a violation of law for the defendant to have carried a pistol concealed abput his person, or to have carried it about his person on premises not his own, or not under his control, and on this occasion. But I further charge you that as a matter of law such carrying of a pistol on the occasion of the shooting of the deceased would not render the defendant guilty in this case unless such carrying of the pistol was the proximate cause of the shooting or the killing, and I charge you that under the evidence in this case, such carrying of the pistol on this occasion was not the proximate cause of the shooting or the killing.”</p> <p>(14) Practically the same as 13.</p> <p>(17) Practically the same as 13.</p> <p>(15) “Before you can convict the defendant in this ease, you must be satisfied beyond reasonable doubt, from the evidence in the case, that defendant had a criminal intent to do the killing.”</p> <p>(19) “Neither the intoxication of the defendant on this occasion nor the carrying of the pistol by him concealed about his person, or on the premises where the shooting occurred, constituted the proximate cause of the shooting and the killing.”</p> <p>(20) Practically the same as 19.</p> <p>(23) “Before you can convict the defendant in this ease, you must be satisfied from the evidence in the case to a moral certainty that the defendant had a criminal intent to do the killing, or that the defendant wantonly did the killing, and I charge you that to constitute the acts or conduct of defendant on this occasion, in the handling of the pistol, and shooting of the deceased, as .being one, you must believe from the evidence’ in the case that the defendant at the time was conscious of his conduct, and, Without having the intent to injure, he was at the time conscious, from his knowledge of the existing circumstances and conditions, that his conduct would likely or probably result in injury, and I charge you that a mere error of judgment on the part of the defendant on this occasion as to'the result of his acts, having at the time no evil intent, and not being conscious of probable result, would not amount to wantonness within the meaning of the law, and if after a consideration of all the evidence in the case you have a reasonable doubt as to whether or not the defendant at the time was conscious of the probable result, or if you have a reasonable doubt from the evidence as to whether or not ho intentionally did the killing, I charge you that in either event you should acquit the defendant.”</p> <p>(27) “Á mere error in judgment on the part of the defendant on this occasion as to the manner of handling the weapon, and to the result of his acts, would not authorize a conviction in this case.”</p> <p>(30) Same as the first part of charge 23.</p> <p>No brief reached the Reporter.</p> <p>The predicate was sufficiently laid for a dying declaration. 139 Ala. 74, 36 South. 138, 101 Am. St. Rep. 17; 152 Ala. 38, 44 South. 619. The motion to exclude went for the entire answer, and hence was not good. 190 Ala. 10, 67 South. 237; 180 Ala. 576. The court may permit leading questions. 171 Ala. 112, 55 South. 156, Ann. Cas. 1913A, 1103; 87 Ala. 24, 5 South. 829. In any event, the evidence wras admissible. 146 Ala. 66, 41 South. 274. Dr. Allen’s statement was competent. 194 Ala. 11, 69 South. 941, 2 A. L. R. 509; 181 Ala. 35, 61 South. 336. The qualification of the infant was for the court. 109 Ala. 64, 19 South. 530'. Counsel discuss refused charges, but without citation of authority.</p>

W. Harralson, Judge. Action by Daisy Caldwell and others, for the use of G. B. Caldwell and E. H. Caldwell, against the United States Fidelity & Guaranty Company, for breach of a super-, sedeas bond. Judgment for defendant, and plaintiffs appeal.

P. Almon, Judge. Proceeding by the State of Alabama to condemn an automobile used in the illegal traffic of liquor, in which Ed Eckl interposed claim to the car. From an order of condemnation, claimant appeals. This case should be reversed and rendered on the authority of 203 Ala. 90, 82 South. 104, and 204 Ala. 238, 85 South. 452. No brief came to the Reporter.

<p>Appeal from Circuit Court, Limestone County; O. Kyle, Judge.</p> <p>George Long was convicted of murder, and be appeals.</p> <p>No brief came to the Reporter.</p> <p>No brief came to the Reporter.</p>

P. Almon, Judge. Bill by Mary H. Conner and another against Ed. Camp and others to enjoin trespass, for a receiver, and to reclaim posses-, sion of, property. From a decree granting the relief prayed, respondent Camp appeals. Court erred in overruling the demurrers of the defendant Camp. 16 Cyc. 52; 92 Ala. 490, 9 South. 262; 148 Ala. 843, 42' South. 564; 70 South. 554, 70 Fla. 514; 182 Ala. 303, 62 South. 519; 20 South. 506, 111 Ala. 656; 126 Ala. 155, 27.

<p>Master and servant <&wkey;302(2) — Automobile truck owner not liable for Injury to child invited to ride by chauffeur.</p> <p>The owner of an automobile delivery truck held not liable for injuries to a child eight years old, who fell off while riding by the permission or at the invitation of the chauffeur without the owner’s knowledge or consent and without necessity therefor.</p> <p>^»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>I. Injunction <&wkey;l 18(2) — Biil to enjoin collection of increased water rates should allege interest of complainants.</p> <p>In suit by a hotel company and its lessee to enjoin collection of a water rate in excess of the hotel company’s contract, the bill was-defective in not showing clearly what interest, if any, the hotel company had in the suit, except that it owned a hotel leased to the other complainant, that it had a contract for water with defendant, and that it was assignor and-the other complainant assignee of the water contract.</p> <p>2. Injunction <&wkey;114(2)— Hotel company held properly joined as complainant with its lessee in suit to enjoin collection of increased water-rates.</p> <p>In suit by a hotel company -and its lessee to enjoin collection of a water rate in excess of the hotel company’s contract, the hotel company, being lessor of its hotel and assignor of the water, contract to its lessee, could be joined as complainant with its lessee and assignee, with its consent, which, as it was a complainant, would be presumed to have been given.</p> <p>3. Waters and watercourses <&wkey;2Q3( 12)— Pub-lie Service Commission has exclusive jurisjkdiction to fix reasonable water rates.</p> <p>I The court has no jurisdiction to determine that a water rate is unreasonable and to fix ¡what would be a just and reasonable rate; the Public Service Commission having that exclusive authority and jurisdiction, under Acts 1915, p. 865.</p> <p>4. Specific performance t&wkey;l 14(2) — Bill for specific performance of water contract held defective in not setting out contract clearly.</p> <p>A bill to require a water company to supply complainants at rates fixed by contract held insufficient as a bill for specific performance, in not setting out the contract in full or even in. substance, in not showing when the contract was to begin or end, in not averring its continued existence, and in that the only breach averred was that the water company presented, bills for more than the contract rate and refused to accept the contract price when tendered.</p> <p>5. Waters and water courses <&wkey;203(l2) — Complainants not entitled to injunction against increased water rates where no threat to-shut off water.</p> <p>Complainants were not entitled to injunction against increased water rates where they were receiving the water, and, although defendant would not accept the contract rate therefore, but presented monthly bills for more than complainants’ contract permitted, no suit bad been filed for it nor was there any pleading that the water supply had been shut off or notice-given that it would be shut off or that defendant was talcing steps to carry out this purpose- and that irreparable injury would result unless-injunction were granted; although, if such facts had been averred, a temporary injunction should issue, complainants having tendered and deposited in court the contract price for the water.</p> <p>6. Injunction <&wkey;>ll8(3) — Allegation that defendant “claims the right to” do the act sought to be enjoined not sufficient showing of threat to do it.</p> <p>A bill for injunction, not alleging that defendant has stated it will do the act sought to-be enjoined, nor averring any fact showing that defendant will probably do it, but simply averring .that defendant “claims the right to” do the act, is insufficient to support an injunction; but there must be facts alleged showing a reasonable apprehension of the intent or .probable intent, or probable purpose of defendant to do the act.</p> <p>(g^jFor other cases seesame topic and KEY-NUMBER in all Key-Numhered Digests and Indexes</p> <p>7. Discovery <&wkey;70 — Interrogatories in suit to enjoin increased water fates held irrelevant to issues.</p> <p>In suit to enjoin increased water rates, it was not error to refuse to enter decree pro confesso against defendant water company, under Code 1907, §§ 4049, 4054, 4055, for its failure to answer interrogatories propounded by complainants calling for the number of its customers, the value of its property, the assessed value, and its income and profits, as the facts called for would shed no light on any material issue tendered by the bill.</p> <p>dfcoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Morgan County; Robt. C. Brickell, Judge.</p> <p>Bill by W. D. Lyle against James E. Penney for the specific! enforcement of a contract to convey land. From a decree overruling demurrers to the bill, defendant appeals.</p> <p>In a bill to specifically perform, complainant must show that he has performed in full or his reason for nonperformance. 167 Alav. 475, 52 South. 423, 140 Am. St. Rep. 52; 75 Fla. 744, 79 South. 168; 36 Cyc. 778. His sending the cheek 10 days later did help his case. 135 Ala. 630, 34 South. 31, 62 L. R. A. 551, 93 Am. St. Rep. 49. The bill must show that the respondent was the owner and capable of conveying. 202 Ala. 690, 81 South.. 666; 10 Mont. 5, 24 Pac. 695, 24 Am. St. Rep. 17; 18 R. I. 672, 29 Atl. 998; 49 Am. St. Rep. 811; 92 Md. 371, 48 Atl. 161; 155 App. Div. 750, 140 N. Y. Supp. 639. The bill shows the contract was oral, and therefore void under the statute of frauds. 69' Ala. 354; 135 Ala. 630, 34 South. 31, 62 L. R. A. 551, 93 Am. St. Rep. 49. The bill does not sufficiently aver agency. 45 South. 178; 159 Ala. 462, 49 South. 76.</p> <p>Time was not of the essence of the contract. 185 Ala. 71, 64 South. 55; 89 Ala. 402, 8 South. 114, 18 Am. St. Rep. 126; 25 R. C. L. § 58. By retaining the check he waived the time. 187 Ala. 322, 65 South. 803, 1 C. J. 563-4; 86 Ala. 424, 5 South. 116, 11 Am. St. Rep. 51; 27 R. C. L. § 6, and authorities supra. Ownership was sufficiently alleged. 25 R. C. L. sec. 150; 36 Cyc. 777; 10 Mont. 5, 24 Pae. 695, 24 Am. St. Rep. 17. The contract was not within the statute of frauds. 149 Ala. 464, 43 South. 13; 190 Ala. 446, 67 South. 255; 202 Ala. 690, 81 South. 666, Agency was sufficiently alleged. 159 Ala.- 464, 49 South. '76; 157 Ala. 218, 47 South. 142, 131 Am. St. Rep. 52.</p>

<p>Intoxicating liquors @=3246 — Automobile purchased by father and turned over to son, who used it for transportation of liquor, subject to condemnation.</p> <p>Automobile purchased by a father and lent or turned over to his sou for use as a public taxicab, to be paid for out of the proceeds of the taxicab business, a license being issued to the son to run it in his name as owner, which the father knew, AeJei subject to condemnation and forfeiture under Gen. Acts 1919, p. 13, § 13, whore used by the son for the unlawful transportation of whisky.</p> <p><@ES>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes</p>

W. I-Iarralson, Judge. Bill by W. Y. Jacoway against R. F. Lyons and others for the sale of real estate for division among the joint owners thereof. From a decree granting the relief prayed for, respondents appeal. The bill alleges the purchase of the Stuart lands by a number of people in a deed to George S. Smith as trustee, conveying the lands and a certificate by him showing the interest of each of the beneficiaries.

<p>1. Evidence <&wkey;4l9(!5) — As to consideration for note held admissible.</p> <p>In action on a note, alleged to have been delivered along with an application for corporate stock and a notice to banks of permission to exchange bank time certificate for note, where defendant testified he signed npte, but not the application or the instrument addressed to the banks, it was competent for defendant to testify as to conversation and contract made by him with agent selling the stock when he gave Mm the note, and that agent agreed that the stock should be attached to note and sent to defendant’s home.</p> <p>2. Bankruptcy &wkey;>268 — Purchaser after maturity at bankruptcy sale acquired only title bankrupt had.</p> <p>One purchasing note at bankruptcy sale after maturity acquired only such title or interest as the bankrupt had, and the maker had the right to same defense against purchaser that it would have had if the trustee in bankruptcy was plaintiff.</p> <p>3. Evidence <&wkey;4l9(!5) — That stock was not attached to note circumstance tending to show corporation did not accept and approve ap-. plication for stock.</p> <p>In action on a note given for corporate stock, where defendant testified, “I never wrote to the P. Company or had any communication with them whatever in regard to these notes,” and “I made no effort to rescind contract before this suit was filed,” and the “note was given for subscription for 10 shares of stock in the P. Company,” and that said note has not “been paid or any amount thereon, the fact that the note was introduced in evidence and stock was not attached thereto was a circumstance tending to show that corporation did not accept note pr approve application for stock; it being proper to inquire whether or not the stock was issued and tendered or dividends received thereon.</p> <p>4. Trial (@=H43 — No general charge on conflicting evidence.</p> <p>General charge asked by plaintiff in writing was properly refused where the evidence was conflicting.</p> <p>5. Corporations <&wkey;92 — No recovery on note where corporate stock was not delivered as agreed.</p> <p>Where note was not to be paid until corporate stock for which it was given was delivered, and no stock was ever delivered or tendered to maker, then the maker was entitled to verdict in action on the note.</p> <p>&wkey;jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit- Court, Tuscaloosa County; Henry B. Poster, Judge.</p> <p>Action by M. Cohen & Sons, partners, against the Pizitz Mercantile Company on a promissory note. Judgment for defendant, which, on plaintiff’s motion, was set aside, and new trial ordered, and from the latter order, defendant appeals.</p> <p>The note was ultra vires the corporation. 120 Ala. 128, 26 South. 494; 58 South. 740 ; 10 Cyc. 1099. Being entitled to the affirmative charge, the defendant was injured by the granting of a new trial. 17 Ala. App. 251, 84 South. 559. The evidence palpably supported the verdict, and the court erred in granting a new trial. 92 Ala. 680, 9 South. 738; 150 Ala. 662, 43 South. 787; 84 South. 556.</p> <p>The abandonment of a legal right is sufficient consideration to support the contract. 54 Ala. 246; 84 Ala. 570, 3 South. 286, 5 Am. St. Rep. 401. The contract constituted a general assignment. 72 South. 76; section 4295, Code 1907. Sacks was made a stockholder, and the two other partners were paid sums of money which were secret transactions, and the assets conveyed were considerably more than the consideration paid. This gave appellees a legal right to sue. 59 Ala. 612; 91 Ala. 401, 8 South. 548; 104 Ala. 481, 16 South. 534; 110 Ala. 511, 18 South. 135, 55 Am. St. Rep. 35; section 4293, Code 1907. Under the facts, appellant was not a surety, but a principal. 98 Ala. 92, 12 South. 723; 104 Ala. 409, 16 South. 23, 53 Am. St. Rep. 70; 168 Ala. 328, 52 South. 926.</p>

E. Blackwood, Judge. Action by the J. C. Lysle Milling Company against the North Alabama Grocery Company to recover the price of certain flour. Judgment for the plaintiff, and the defendant appeals. The controversy arose with reference to two orders of flour, one for 800 barrels and a later one for 700 barrels.

<p>Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.</p> <p>Bill by Ruth Pruitt against John A. Pruitt for divorce and alimony. From a decree denying relief, and dismissing tbe bill, complainant appeals.</p> <p>Tbe evidence makes out a case of legal cruelty, and tbe court was in error in its decree. 30 Ala. 714; 44 Ala. 437; 44 Ala. 670; 69 Ala. 84; 80 Ala. 254; 171 Ala. 600, 55 South. 96; 27 Ala. 222; 11 Ala. 620.</p> <p>Tbe evidence did not support the allegations of the bill, and tbe court properly dismissed tbe bill. 165 Ala. 191, 51 South. 743; 189 Ala. 286, 66 South. 4.</p>

<p>Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.</p> <p>Bill by H. M. Beck, as trustee, and others under a mortgage executed to secure creditors against J. G. Burchfield and his wife to ascertain the amount of the mortgage debt and to foreclose. From a decree dismissing the bill complainants appeal.</p> <p>Counsel discuss the jurisdiction and functions of the court of equity and also the right of complainant to a personal judgment in case the mortgage is invalid or defective; but they do not discuss the matters decided in the opinion.</p> <p>Counsel insist that in view of the record court could not have rendered any other judgment; therefore the decree should be affirmed.</p>

<p>Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson, Judge.</p> <p>Action by Dora Harden against Lee C. Bradley, as Receiver of the Birmingham Railway, Light & Power Company. Judgment for defendant, and plaintiff appeals.</p> <p>The charge made the basis of the fourth assignment of error is as follows:</p> <p>“If you believe from the evidence the manifestation of peril of the plaintiff, and her being seen by defendant’s servant or agent in charge of said street car, was so close in point or in time that the car could not have been stopped under the circumstances and with the appliances in hand in time to have avoided the injury to her, then the defendant’s servant or agent in charge of said car cannot be deemed .guilty of a failure to exercise due diligence to avoid injury to plaintiff after discovering her peril.”</p> <p>The other matters treated sufficiently appear from the opinion.</p> <p>Hearsay evidence is always inadmissible. The negligence of the driver of the automobile cannot be imputed to. the plaintiff. 194 Ala. 265, 69 South. 875, L. R. A. 1916E, 1190; 195 Ala. 378, 70 South. 729. Charges given defendant were erroneous. 168 Ala. 262, 52 South. 896; 166 Ala. 460, 52 South. 75; 160 Ala. 594, 49 South. 369; 148 Ala. 69, 41 South. 616; 148 A'la. 96, 42 South. 627; 96 Ala. 363, 11 South. 427; 153 Ala. 133, 45 South. 51'; 184 Ala. 601, 64 South. 44. Renfroe. v. Collins', 201 Ala. 489, 78 South. 395.</p> <p>Counsel discuss the evidence assigned as error, but cite no authority to support their contention. They insist that the charge made the basis of the fourth assignment of error was correct, and they cite 148 Ala. 673, 41 South. 829; 159 Ala. 195, 48 South. 798, 133 Am. St. Rep. 32; 196 Ala. 663, 72 South. 263.</p>

P. Almon, Judge. Bill by the Otis Elevator Company against the Sheffield Realty Company and others to establish a materialman’s lien. From a decree granting insufficient relief, complainant appeals. Suit to enforce materialman’s lien on the Sheffield Hotel for the balance due appellant on two contracts made with the Sheffield Realty Company.

<p>1. Master and servant <&wkey;4 80(5) — Statutory fellow-servant rule applicable to injuries by railroad engineer stated.</p> <p>In an action against a mine operator under Code 1907, § 3910) subd. 5, for injuries through the negligence of a locomotive engineer, the complaint must aver that plaintiff at the time of the injury was a railroad employee of the defendant, and hence a fellow servant with the engineer, or that at the time of his injury his employment in performing defendant’s work placed him in close proximity to the railroad, so that the danger therefrom was one of the ordinary dangers incident to his particular employment, or else he must sue as a stranger.</p> <p>2. Master and servant <í&wkey;259(7) — Complaint held insufficient to charge negligence of fellow servant under statute relating to railroad engineers.</p> <p>A complaint for injuries to an employee of defendant mine operator, which avers that while he was engaged in his work as a laborer “near” defendant’s railroad he was run -over by cars through the negligence of the locomotive engineer, does not state a cause of action under Code 1907, § 3910, subd. 5, for the negligence of a fellow servant having charge of a train; the word “near” being a relative term does not aver how close the work took plaintiff to the railroad.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Near.]</p> <p>3. Trial &wkey;>253(9) — Instruction on supervening negligence held properly refused for excluding negligence of trainmen in-not sooner discovering plaintiff.</p> <p>In a servant’s / action against the master, an iron company, also operating a railroad, an instruction that if the jury believed that plaintiff was in a place of safety, and suddenly went on the track in front of the train, and the engineer was not negligent after discovering him, the verdict should be for defendant, was properly refused, since the engineer or head-switch-man may have been guilty of negligence in not keeping a proper lookout and discovering plaintiff sooner.</p> <p><g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Action by J. R. Cox against Thomas Collins for damage for breach of an agreement to convey land. From an adverse ruling on the pleading, plaintiff took a nonsuit, and appeals. Suit by appellant against appellee. Prom the ruling of the court sustaining demurrers to the first count of the complaint plaintiff took a nonsuit with bill of exceptions to review such rulings.

<p>Appeal from Circuit Court, Jefferson County ; Hugh A. Locke, Judge.</p> <p>Bill by O. W. Ford against Catherine Ers-well and. others for discovery and the fixing of compensation concerning the sale of real estate. From a decree overruling' the demurrers to the bill, respondents appeal.</p> <p>Failure of Ford to notify Mrs. Erswell that Pizitz had offered $105,000 for the property was a breach of duty, barring right to recover. 177 Ala. 636, 59 South. 286; 19 Oyc. 225; 9 O. J. 567. The contract was unilateral, and subject to be terminated at the pleasure of the owner at any time before complainant made a sale. 73 Ala. 372; 9 Ala. App. 152, 62 South. 560. As a hill for discovery the bill was insufficient for four reasons. 167 Ala. 553, 52 South. 892; 180 Ala. 118, 60 South. 143; 138 Ala. 644, 35 South. 645; 164 Ala. 422, 51 South. 393; 93 Ala. 542, 9 South. 256. The contract was not fully executed.</p> <p>There is no question of complainant’s right Tight to recover. 163 Ala. 433, 50 South. 929; 196 Ala. 419, 72 South. 89; 177 Ala. 636, 59 South. 286. The bill was good as a bill for •discovery. 93 Ala. 542, 9 South. 256; 84 Ala. 600, 4 South. 725; 150 Ala. 602, 43 South. 805, 9 L. R. A. (N. S.) 1255. Mutuality ■of agreement had been supplied, if it was wanting when the contract was made. 191 Ala. 379, 68 South. 63; 203 Ala. 233, 82 .South. 483.</p>

L. Brewer, Judge. Suit by J. Y. Lipham against J. W. Shamblee and others. Decree for defendants, and complainant appeals. The answers to sections 2, 3, 4, and 5 of the bill amount to an admission of the same. 28 Ala. 280.

Action by Clyde Marcrum, by next friend, against the Indian Refining Company for damages for personal injuries. Judgment for the defendant, which on motion of the plaintiff was set aside, and a new trial ordered, from which last order defendant appeals.

<p>Appeal from' Circuit Court, Etowah County ; Woodson J. Martin, Judge.</p> <p>Bill by Inez Merchant Smith, by next friend, against Charlie Smith. Erom decree sustaining demurrers to the bill, complainant appeals.</p> <p>The bill alleges that plaintiff is a minor of 15 years, and that her'husband is 25 years of age, and that by the exercise of his arts and wiles, his powers of persuasion and constraint on the plaintiff, her said husband constrained her to forge her father’s name to an instrument in writing purporting to be the consent of her father in writing to the marriage of complainant and respondent, complainant being too immature in mind, years, and judgment to understand and appreciate the wrong thereof, and that after obtaining said forged written consent the defendant procured a marriage license to be issued authorizing the marriage, and by virtue of his superior years, mind, and power over the immature mind and judgment, and by his arts, wiles, and power of persuasion as to complainant, exercised upon the will and judgment of complainant, constrained her to enter into and go through a marriage ceremony with him. Complainant avers that this was without her free and intelligent consent, and that her father had -never authorized, ratified, or confirmed the said forged written instrument, etc.</p> <p>Demurrers raised the proposition that fraud is not sufficiently charged, and that the fraud charged is not sufficient as grounds upon which to annul the marriage contract.</p> <p>Court erred in sustaining the demurrers to the bill, as the age of consent is placed at 16 years. Acts 1915, p. 137. The fraud alleged was sufficient. 26 Cyc. 901; 102 Ala. 430, 15 South. 247 ; 84 Ala. 262, 4 South. 137; 80 Ala. 148.</p> <p>The age of consent is 14 years. Section 4879, Code 1907. Written consent, as prescribed by section 4885, Cod.e 1907, is for the protection of the probate judge. Fraud alleged is not available as a ground for divorce. 141 Ala. 590, 37 South. 638; 127 Ala. 580, 30 ■South. 524.</p>

<p>Appeal from Circuit Court, Marshall County; W. W. Harralson, Judge.</p> <p>Bill to redeem from foreclosure by M. L. Cornelius (formerly Woodham), on behalf of herself and her minor children, by her bus band, Woodham, against Richard Bishop and others. Decree for respondents, and complainants appeal.</p> <p>There was no authority given the mortgagee to purchase at her sale, and complainants had the right to disaffirm and redeem. 88 Ala. 487, 7 South. 238, 16 Am. St. Rep. 55. The purchaser is regarded as the assignee of the mortgage, and is accountable to the mortgagor in all respects as the mortgagee. 187 Ala. 181, 65 South. 364; 17 Colo. 489, 30 Pae. 43, 31 Am. St. Rep. 328. A purchaser under a defective foreclosure, entering into possession, has no more rights than those of an assignee, and the redemption money- is to be divided in proportion to money paid by each, and in the order that the purchases were made. Thomas on Mortgages, p. 233; 189 Ala. 153, 66 South. 75,- and authority supra. Purchaser is chargeable with notice of every matter affecting the estate which appears on the face of the muniments of title, and whatever he could have learned by inquiry which ought to have been prompted by these recitals. 46 Ala. 664; 39 Cyc. 1711-1714; Thomas on Mortgages, p. 149. A mortgagee coming into possession before a valid foreclosure becomes a trustee for the mortgagor or those holding in privity under him. 106 Ala. 417,17 South. 623; 114 Ala. 63, 21 South. 483; 46 Ala. 664; 79 Ala. 192; 74 Ala. 232, 49 Am. Rep. 813. The decree should have allowed each of the complainants separately to redeem the land from the mortgage. 65 Ala. 511; 79 Ala. 192; 2 Jones on Mortgages, § 1126. The respondents are not entitled to compensation for improvement. 60 Ala. 360; 79 Ala. 192, and authorities supra. Respondents are not bona fide holders without notice. 46 Ala. 664; 132 Ala. 155, 32 South. 630; 114 Ala. 63, 21 South. 483; 79 Ala. 192.</p> <p>The mortgage holder was not in fact the purchaser at the sale, and the defendants are bona fide purchasers. 80 Ala. 403 ; 74 Ala. 232; 22 Cyc. 17-20; 2 Jones on Mortgages, § 1886. The respondents were entitled to taxes and reasonably necessary repairs. 132 Ala. 155, 32 South. 630; 59 Ala. 535. Having acted in good faith, they were entitled to set off the value of the improvements against their liability. 22 Cyc. 561; 27 Cyc. 1266; 16 Cyc. 143; 74 Ala. 232 ; 65 Ala. 511; 92 Ala. 463, 8 South. 417, 12 L. R. A. 136; ,88 Ala. 346, 6 South. 698. In estimating the rent, rule is their value in the condition of thq land when the mortgagee went into possession. 132 Ala. 155, 32 South. 630; 79 Ala. 192; 74 Ala. 232; 65 Ala. 511. If the improvement exceeds the rent, it must be paid for before redemption, under the facts in this case. 29 Ala. 478; 39 111. 521, 89 Am. Dec. 322; 48 Neb. 646, 67 N. W. 452, 58 Am. St. Rep. 714, and authorities supra. The adult as well as the minor complainants are required to account for the money expended by Mrs. Buccalew in exonerating the farm occupied by them, by paying their father’s debts. 130 Ala. 502, 30 South. 517; 87 Ala. 584, 6 South. 197; 73 Ala. 116; 64 Ala. 420, 38 Am. Rep. 13, 99 Ala. 36, 11 South. 419; 12 South. 605; 99 Ala. 52, 11 South. 830; 122 Ala. 602, 26 South. 139, S2 Am. St. Rep. 103; 169 Ala. 648, 53 South. 830. Infants can no more obtain equity without doing equity than adults. 193 Ala. 364, 69 South. 574; 19 111. 295, 68 Am. Dec. 597.</p>

Kyle, Judge. Action by W. J. Walling against A. E. Churchill for damage to cotton while stored in defendant’s warehouse. Judgment for plaintiff, and defendant appeals. Suit by appellee against appellant, tried upon count 1 and the general issue thereon.

Clair County ; Woodson J. Martin, Judge. Bill by George A. McAllister against J. D. Moore, individually and as Trustee to quiet title to certain lands. From a decree granting the relief prayed, respondent appeals. It is settled in this state that a conveyance of standing timber is a transmission of an interest in the land supporting it. 154 Ala. 660, 46 South. 239.

<p>I. Evidence &wkey;>383(7) — Presumed that a conveyance fully speaks truth.</p> <p>The presumption arises from a deed conveying land that it fully speaks the truth and that the grantees therein are the owners of the land, and this presumption must prevail until the contrary is established beyond a reasonable controversy, and the burden of removing such presumption rested upon cross-complainants in an action by one of the grantees for partition who relied on the deed.</p> <p>—-.v-m- other cases see same topic and KEY -N UMBER in all Key-Numbered Digests and Indexes</p> <p>2. Trusts —Consideration establishing resulting trust must have been paid at time of purchase.</p> <p>Persons seeking to establish a resulting trust in land must not only show that the consideration moved from them, but that it was paid contemporaneous with the purchase of the land.</p> <p>3. Parent and child <&wkey;5(l) — Parent entitled to services of minor children.</p> <p>A widow is entitled to the services of her minor children, and minor children who assisted in farm work upon the homestead of their widowed mother had no title to the proceeds of the farming operation.</p> <p>4. Trusts <&wkey;91 — “Constructive trust” defined.</p> <p>A “constructive trust” arises when the legal title to property is obtained by one in violation, express or implied, of some duty owed to one who is equitably entitled thereto, and when the property thus obtained is held in hostility to his - beneficiary’s, rights of ownership, but such trusts are often termed trusts in invitum.</p> <p>5. Trusts <i&wkey;365(2) — Relief denied uhder doctrine of laches.</p> <p>In partition where defendants attempted to establish that plaintiff held the legal title in trust, held, that defendants should be denied relief under the doctrine of laches, having shown no sufficient excuse why the claim was not asserted during 30 years transpiring after conveyance of land to plaintiff.</p> <p>6. Tenaney in common <&wkey;l5(l) — Defendants in partition held barred from asserting tenancy in common.</p> <p>Where complainant in partition and bis mother upon the face of the record were joint owners of land, and complainant resided upon such land for a long number of years and for 30 years received the rents, incomes, and profits therefrom, and paid the taxes thereon, with no recognition of any rights on the part of defendant brothers and sisters, the latters’ claim that they were tenants in common was completely barred, having known of complainant’s claim to the land during the 30 years.</p> <p><@cx>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Original petition by John Little and Robert Little for mandamus to Henry B. Foster, Judge of the Sixth Judicial Circuit, sitting in equity in the circuit court of Tuscaloosa county, to have him annul an interlocutory order requiring petitioners to answer certain interrogatories.

<p>Appeal from Circuit Court, Bibb County; Lloyd Tate, Judge.</p> <p>Action by W. J. Carson against the Tennessee Coal, Iron & Railroad Company for damages for personal injury suffered while in its employment. From a judgment for plaintiff and denial of a motion for new trial, defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450.</p> <p>The first four grounds of motion for new trial are that the verdict of the jury was contrary (1) to the weight of the evidence; (2) to the preponderance of the evidence; (3) to the great preponderance; and (4) to the overwhelming weight of the evidence.</p> <p>The motion for new trial should have been granted, on the ground that the verdict was contrary to the great weight of the evidence. 189 Ala. 662, 66 South. 627; 181 Ala. 565, 61 South. 914; 171 Ala. 294, 54 South. 626; 175 Ala. 319, 57 South. 718, 40 L. R. A. (N. S.) 998. The statement made in the conversation between two of the employees of the defendant was clearly not a part of the res gestae, and not binding on defendant. 48 Ala. 15; 90 Ala. 80, 8 South. 90, 9 L. R. A. 442, 24 Am. St. Rep. 764; 196 Ala. 59, 71 South. 990. Substantial disputed facts cannot be proven by hearsay. 159 Ala. 361, 48 South. 696.</p> <p>Court properly overruled motion for new trial. 92 Ala. 630, 9 South. 738; 50. South. 316. Counsel discuss other -assignments of error, but in view of the opinion it is not deemed necessary to here set them out.</p>

C. B. Gwin, Judge. Bill of review by Iverson Wright agqinst Angoline Wright to correct a decree allowing divorce and alimony. From a decree dismissing the bill complainant appeals. The complainant, defendant to the divorce and alimony suit, was entitled to notice. Rule 97, Chan. Prac.; sections 3158, 3161, and 3166, Code 1907; .87 Ala. 750, 6 South. 703.

Action by William Daniels against the Patterson & Edey Lumber Company for breach of contract and in assumpsit. ‘Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

Brickell, Judge. Bill by H.' L. Hamby against Lillie Mc-Derm'ond and others to quiet title to land. Decree for complainant, and respondents appeal. The deed of the Louisvillé & Nashville Railroad to S. A. Jones, being recorded, was notice of the title of her heirs. 148 Ala. 233, 41 South. 780. The deed relates back to the contract of purchase. 76 Ala. 560. W. L. Jones had only a life estate. 172 Ala. 672, 55 South. 190; 105 Ala. 382, 16 South. 883; 164 Ala. 393, 51 South. 20.

<p>Appeal from Circuit Court, Dallas County; B. M. Miller, Judge.</p> <p>Bill by Samuel A. Fowlkes and others against Mary Clay and others, to construe the will of Mary L. Clay, deceased. From the decree rendered, complainants appeal.</p> <p>Samuel A. Fowlkes was appointed trustee by the chancery court of Dallas county to succeed J. D. Olay, who was the former trustee under the will for Edna Olay and Elizabeth Olay, daughters of James Olay, and granddaughters of testator, and also trustee for Mary, Leone, Jefferson, and Edith Olay, children of J. L. Olay. The agreed statement of facts is . that the allegations contained in sections 1, 2, and 3 of the bill, and 1, 2, and 5 of the answer, are true, and that the attached copy of the will is true; that the testator was horn in 1837, and died in 1907; that Mary Olay was born in 1895, Edna Olay in 1896, and Elizabeth Olay in 1898. The sections of the bill referred to as being true set up the facts already stated as to the trusteeship, and also gives the residence and ages of the parties complainant and respondent. Sections of the answer admitted to be true set up the fact that Mary Clay has married, and is now Mary Clay Clamp, and section 5 sets up the fact that the will of the testator" was drafted and executed by her when she was quite old, and suffering with a fatal malady, from which she died in about 18 months after executing the will, and that at the time of her death all the devisees mentioned in the will were minors under the age of 14 years.</p> <p>Items 5, 8, and 11 of the will .were as follows:</p> <p>“Item 5. I give and bequeath unto my said son J. L. Olay, in trust, the hereinafter described real and personal property to be held by him as trustee for the use, benefit and behoof of ,my two grandchildren, Edna and Elizabeth Olay, daughters of my deceased son, James B. Clay, as follows, to wit: All the land which I own in Perry county,' Alabama, containing 750 acres more or less; also the following real estate in Selma, Alabama, with the improvements thereon, the lots known as the Welborn property in the western part of said Selma; the lot known as the Berry property in East Selma, and an undivided one half interest in the hereinbefore described Furguson lots. In the event X fail during my lifetime to make contemplated improvements on the said Welborn property, to cost about twenty five hundred dollars ($2,500'.-00), I devise and bequeath unto my said son, in trust as aforesaid, out of any money or property belonging to my estate, not herein specifically disposed of, the sum of twenty-five hundred dollars ($2,500’.00'), in lieu of said contemplated improvements. And also ten shares of the capital stock of the Oity National Bank of Selma which I now own.”</p> <p>“Item 8. The other half of my estate, not otherwise disposed of, I give and bequeath unto my said son J. L. Olay as trustee for my said grandchildren, Edna and Elizabeth Olay, daughters of my deceased son James B. Olay.”</p> <p>“Item 11. I further will and direct that should either of my grandchildren, Edna and Elizabeth Olay, daughters of my deceased son James B. Olay, die without issue, that- her share shall descend and vest in the survivor, and in' the event both should die without issue, the property herein bequeathed to them shall descend and vest in the issue of my said son J. L. Olay, per stirpes.”</p> <p>The limitations mentioned in item 11 apply only in case of the death of Edna and Elizabeth Clay prior to the death of testatrix, and hence court erred in holding that their estate was subject to divestiture in case both died with issue. Section 3896, Code 1907; 135 Pa. 575, 19 Atl. 951, 20 Am. St. Rep. 889; 157 Ala. 79. 47 South. 220, 25 L. R. A. (N. S.) 1045; 189 Ala. 107, 60 South. 36; 196 Ala. 224, 72 South. 81; 139 Ala. 406, 36 South. 616; 173 Ala. 604, 55 South. 500 ; 65 Ala. 321; 40 Cyc. 1390; 157 Ala. 79, 47 South. 220, 25 L. R A. (N. S.) 1059.</p> <p>The appellees contend that the trial court did not err on its final decree, but correctly held that Edna and Elizabeth Olay, under the will of the said Mary L. Olay, deceased, took a fee-s'imple title to the property devised to them, subject to divestiture upon both dying without issue, either before or after the death of the testatrix. Rives et al. v. Bur-rage et al., 110 Miss. 789, 70 South. 893; Harvey v. Johnson, 71 South. 824; Montgomery v. Wilson, 189 Ala. 209, 66 South. 503; Ex parte White, 118 Miss. 15, 78 South. 949, L. R. A. 1918E, 1065; Dickson v. Dickson, 178 Ala. 117, 59 South. 58; Smith v. Smith, 157 Ala. 79, 47 South. 220, 25 L. R. A. (N. S.) 1045 and note; English v. Mc-Creary, 157 Ala. 487, 48 South. 113; McWilliams v. Ramsey, 23 Ala. 813; Castle-berry v. Stringer, 176 Ala. 250, 57 South. 849; 30 A. & E. Ency. 666.</p>

<p>Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson, Judge;</p> <p>Action to quiet title by G. R. Harsli against Edward Wald. Decree for defendant, and plaintiff appeals.</p> <p>The filing of a bill to set aside the judgment, is no grounds to set aside a sale, and the fact that a judgment is liable to reversal on error, does not invalidate an execution sale thereunder, made while the judgment is still in force. 17 Cyc. 1274. A bona fide purchaser from a purchaser at a judicial sale is not affected by irregularities, etc., of which he has no notice. 24 Cyc. 67; 60 W. Va. 106, 54 S. E. 47, 10 L. R. A. (N. S.) 443, 116 Am. St. Rep. 882, 9 Ann. Cas. 982. The judgment was not void. 94 U. S. 351, 24 L. Ed. 195; 22 N. J. Law, 356; 44 N. C. 78, 57 Am. Dec. 573; 139 Ala. 528, 36 South. 720; 117 Ala. 454, 23 South. 821; Freeman on Judgments, 363.</p> <p>Where a party to a decree purchases under an erroneous judgment or decree in his favor, he acquires a defeasible title only which fails upon a subsequent reversal of such judgment or decree. 61 Ala. 299; 65 Ala. 358. The judgment was void. 126 Ala. 268, 28 South. 640. A party purchasing land then in litigation is charged with the knowledge of lis pendens. 70 Ala. 253; 49 Ala. 419; 75 Ala. 321; 120 Ala. 71, 23 South. 686; 128 Ala. 175, 30 South. 792. The judgment in the attachment suit was void on its face. 122 Ala. 149, 25 South. 697, 82 Am. St. Rep. 68; 151 Ala. 311, 44 South. 37; 153 Ala. 595, 45 South. 205; 153 Ala. 644, 45 South. 206; 154 Ala. 284, 45 South. 666; 164 Ala. 411, 51 South. 236.</p>

O. B. Gwin, Judge. Action by William S. Humphries against the Standard Oil Company for damages for malicious prosecution and false imprisonment. Judgment for plaintiff, and defendant appeals.

<p>1. Equity <&wkey;!48(6) — Suit to rescind contracts and cancel evidences thereof held not multifarious.</p> <p>Where contracts for the sale of land and personal property on the land arose out of a single transaction, and the written contracts bore the same date, and the deed to the land was executed the following day, and the bill of sale of the personalty a few days later, a bill to cancel the contracts, deed, and bill of sale and rescind the contracts was not multifarious.</p> <p>2. Cancellation of- instruments <&wkey;35(3) — In suit to cancel contracts and conveyances, party to whom buyer conveyed held proper party.</p> <p>In a suit to rescind the sale of land and personal property and cancel the written conveyances and contracts, one to whom the buyer conveyed was a proper, if not a necessary, party, where the bill alleged that the contracts were induced by the combined fraudulent efforts of tile buyer and such grantee.</p> <p>3. Equity <&wkey;222 — Failure to number paragraphs is not ground for demurrer.</p> <p>The failure to number the paragraphs of, a bill in equity as required by chancery rule 8 (Code 1907, p. 1531)' is not a ground for demurrer.</p> <p>4. Equity c&wkey;l29 — Bill should be paragraphed.</p> <p>A bill in equity should be paragraphed as required by chancery rule 8.</p> <p>5. Equity c&wkey; 152 — Exhibit may aid imperfect bill.</p> <p>An exhibit may, in proper circumstances, aid an imperfect bill.</p> <p>6. Equity &wkey;>!52 — Exhibit amplifies bill when not contradictory thereof.</p> <p>An exhibit to a bill as a part of. it, when not contradicted by the averments of the bill, serves to amplify the bill as if written in its body.</p> <p>7. Cancellation of instruments <&wkey;37(3) — Instrument should be set out or exhibited with bill.</p> <p>In a suit to cancel contracts and conveyances for fraud, the instruments in question should be either set out in the_ bill or appropriately exhibited therewith; care being exercised to avoid the implication or inference that matters of fact or circumstances implied, recited, or affirmed therein have the effect of averments.</p> <p>disoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes'</p> <p>8. Equity &wkey; 152 — Exhibit hsid not to be given effect as contradicting bill.</p> <p>In a suit to rescind the sale of land and personal property and cancel the contracts and conveyances, a contract exhibited as a part of the bill held not to be given the effect of' contradicting or qualifying the allegations of the bill, but only to be regarded as made an exhibit to bring it before the court.</p> <p>9. Deeds <&wkey;70 (7)— Conveyance by one mentaiiy weak set aside when obtained by unfair advantage.</p> <p>A conveyance of lands obtained for a grossly inadequate consideration by unfair advantage taken of great mental weakness, though not amounting to absolute incapacity of the grantor, will in equity be set aside on equitable terms when application'therefor is seasonably made by the grantor, his representatives or heirs.</p> <p>10. Exchange of property >&wkey;>3(.l) — Representations as to value held representations of fact, and not matters of opinion.</p> <p>Representations by a buyer of land and personal property to be paid for by the conveyance of other property as to the value of his property were representations of fact, and not mere matters of opinion, where to his knowledge the other party was ignorant of its value and relied on his representations.</p> <p><§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Locke, Judge. Rose Johns Cannon filed, a bill to annul two trust agreements, and made parties thereto the Birmingham Trust & Savings Company and A. W. Smith. Later the Birmingham Trust & Savings Company and A. W. Smith filed an answer and cross-bill, making Wallaee C. Johns and others parties respondent, and seeking to construe the trust and fixing the duties and obligations of the trustees.

<p>Appeal from Circuit Court, Cullman County; O. Kyle, Judge.</p> <p>Action by Fred Schneider, administrator of I-Ienry K. Schneider, deceased, against Tony Wise and others, for death of plaintiff’s intestate in an automobile collision. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.</p> <p>The affirmative charge should have been given for the defendant. 202 Ala. 252, SO South. 90; 175 Ala. 108, 56 South. 984; 197 Ala. 473, 73 South. 33; 20 R. C. L. 194. The question to the witness Davis as to his duty in turning a corner was objectionable. 188 Ala. 375, 66 South. 441; 193 Ala. 614, 69 South. 137. So, also, was the question to the witness Newsome. Authority supra. The court should have granted motion for new trial. 17 Ala. App. 25, 81 South. 361; 1 Bailey, Personal Injury, pp. 560, 563, 568, and authorities supra.</p> <p>Under count 1 the evidence supported the general averment of negligence, and denied to the defendant the affirmative charge. 169 Ala. 612, 53 South. 812. The plaintiff is entitled to recover, even though his intestate was guilty of some negligence. 1S7 Ala. 622, 65 South. 984. There was no error in the admission of evidence. Jones on Evidence, § 811; 16 Ala. App. 461, 78 South. 724.</p>

<p>1. Master and servant &wkey;>30¡>(3) — Assault by employé, on former employé demanding pay, actionable.</p> <p>Where a former employé, who had returned to collect pay due her, was assaulted by another employé, designated as a floor lady, who had authority to hire or discharge employés, who kept their time and paid them off, the master is liable for the assault, which grew out of the demand for pay.</p> <p>2. Evidence &wkey;> 123(9) — Declarations of bystander, which evidence showed terminated affray, are admissible as res gestae.</p> <p>Where the evidence for plaintiff showed that defendant’s employés were continuing their assault upon plaintiff as they followed her down the ■ steps, a declaration b'y a bystander that he would shoot the employé if he did not desist is admissible as part of the res gestae, though defendant’s evidence showed the assault had -terminated before that time, and that employé was following plaintiff for an innocent purpose.</p> <p>3. Appeal and error <&wkey;l003 — Number of witnesses does not necessarily determine preponderance of evidence so as to authorize reversal.</p> <p>Whether the verdict was so contrary to the great weight of the evidence as to be palpably and plainly wrong, therefore to be set aside, depends upon the peculiar facts and circumstances in each case, and the mere fact of superiority in number of witnesses is not alone a determining factor. .</p> <p>4. Appeal and error <&wkey; 1005(4)— Evidence held not to show verdict was so contrary to preponderance of the evidence as to justify reversal.</p> <p>In an action for assault and battery committed by defendant’s employés upon plaintiff, a discharged employé, evidence held not to show that a verdict for plaintiff was so contrary to the preponderance of the evidence as to warrant the Supreme Court in disturbing the judgment of the trial judge, who saw and heard the witnesses, and who denied a motion for a new trial.</p> <p>5. Now trial &wkey;>151 — Affidavit held not to show diligence to secure testimony, in view of counter affidavits.</p> <p>A general affidavit as to newly discovered evidence, refuting testimony of declarations by a bystander at the time of the assault in question, which alleged that defendant’s attorney had not been informed of such declarations, and therefore did not subpcena the bystander, does not show sufficient diligence to require the granting of a new trial, where plaintiff’s countervailing affidavit showed that the same attorney appeared in another trial growing out of the same assault, in which the declarations of the bystander were offered in evidence.</p> <p>6. Appeal and error <&wkey;>!004(l) — Verdict care be set aside as excessive only where amount indicates passion or prejudice.</p> <p>-A verdict, awarding damages for assault and battery, is not to be set aside merely because the court thinks the jury gave too much, but only in case the ámount is so excessive as to indicate prejudice, passion, partiality, or corruption on the part of the jury.</p> <p>7. Assault and battery &wkey;>40 — Verdict, awarding $3,000 for assault and battery, where punitive damages might be allowed, held not excessive.</p> <p>In an action for assault and battery by defendant’s employés upon plaintiff under the most humiliating circumstances, and where the evidence justified the awarding of punitive damages, so that the jury was authorized to exercise a wide discretion, a verdict, awarding plaintiff $3,000 will not be disturbed as excessive.</p> <p><§=»For other oases see same topic and KEY-NUMBER in all Key-Nunihered Digests and Indexes</p>

Wilkinson, Judge. Action by Wiley- Nunn against the Woodward Iron Company, for damages for injuries to Matthew Nunn, a minor son of plaintiff, while engaged in the duties of his employment in the mines belonging to the defendant. Judgment for the plaintiff, and defendant appeals. 'Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

O. B. Gwin, Judge. Action by A. J. Terrell against Heaty and Nelson Kimbrell. On motion by plaintiff to retax certain costs in the action. From an order overruling the motion, movant appeals. The motion should have been granted. Sections 3679 and 3684¡ Code 1907; 104 Ala. 548, 16 South. 422 ; 79 Ala. 285. The sanction of an oath is necessary to the reception of any oral testimony. Section 3958, Code 1907; 20 Ala. 296; 6 May. 335. The motion in itself was not sufficient.

S. Williams, Judge. Assumpsit by Clark & Barker, a partnership, against the Eufaula Brick Works. Judgment for defendant, 'and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. The following charges were refused to the plaintiff: (1) I charge you that, if you believe the evidence, you will find from the evidence that Freeman was the agent defendant. (2) Affirmative charge for the amount claimed.

P. Agee, Judge. Walter Lambert was convicted of murder in the first degree, and he appeals. Reversed and remanded. On re-examination of Tom Dill the following occurred: The witness said: “I couldn’t say I personally knew Seab Eason’s reputation in the community for turbulence and violence. I have heard it. So far as anything bad, I couldn’t say; just only hearsay; I know what people say.

<p>Appeal from Circuit Court, Montgomery County; W. L. Martin, Judge.</p> <p>Bill by the Fourth National Bank of Montgomery against Emma C. Stollenwerck and others, to declare an assginment void as to creditors, and to acquire money paid under it for the benefit of creditors. From a decree granting the relief, respondents appeal.</p> <p>The assignment referred to is as follows:</p> <p>“For value received, J. hereby transfer, .assign, and set over to Emma C. Stollenwerck, all my claims and demands of whatsoever kind that I have against the bankrupt estate of John L. Cobbs & Co., a partnership composed of C. C. Cobbs and J. Lewis Cobbs, as well as all my claims and demands of whatsoever kind against the individual bankrupt estate of C. C. Cobbs and J. Lewis Cobbs, which said estates are now being administered by the District Court of the United States for the Northern Division of the Middle District of Alabama, together with all my right and claim to any and all dividends that may be paid or become due to me on account of said claim in said bankruptcy proceeding; and I hereby authorize and appoint the said Emma C. Stollenwerck my agent and attorney in fact, to receive and receipt for all such dividends and to receive any and all checks or other evidences of debt that may be issued from the said bankrupt court, with full power and authority to indorse my name on such checks and other evidences of debt and collect the same, to the same extent as if I, myself, had made the indorsement.”</p> <p>The following is the agreement entered into by the parties:</p> <p>“This agreement, entered into this 29th day of April, 1918, by and between Mrs. Emma O. Stollenwerek, party of the first part, and Mrs. D. E. Cobbs, party of the second part, witnesseth:</p> <p>“Whereas, heretofore, the said Mrs. Emma C. Stollenwerek did loan to the firm of John L. Cobbs & Co. the sum of five thousand dollars ($5,000) evidenced by the promissory note of said firm, indorsed by the individual indorsements of J. Lewis Cobbs, and C. C. Cobbs, the members of that firm, as well as by the accommodation indorsements of E. E. Cobbs and the above-named Mrs. D. E. Cobbs; and,</p> <p>“Whereas, on the 16th day of October, 1915, the said note and indorsements, with the interest notes, were renewed, and thereafter, during to wit, the month of March, 1916, the said John L. Cobbs & Co., as a partnership, and J. Lewis Cobbs and C. C. Cobbs, as individuals, filed their voluntary petition in bankruptcy in the District Court of the United States, at Montgomery, and were duly adjudicated bankrupts; and</p> <p>“Whereas, the said Mrs. D. E. Cobbs had a claim against the estate of John L. Cobbs & Co., which said proceeding is now pending in said bankrupt court and which claim amounts to about thirty thousand ($30,000) dollars, and it is the desire of all parties that all dividends to be paid on the said claim be credited to the said Mrs. D. E. Cobbs on account of her indorsement aforesaid:</p> <p>“Now, therefore, in consideration of the premises, and the sum of one dollar to each of the parties by the other in hand paid, the receipt of which is hereby acknowledged, the parties hereto agree as follows:</p> <p>“1. The said Mrs. D. E. Cobbs promises and agrees to assign and transfer to the said Mrs. Emma C. Stollenwerek all of the dividends on said claim, with full power to the said Stollenwerek to collect and receipt for same, and upon the receipt of any part or the whole of such dividends the same shall be -credited on account of her obligations as an indorser on the above-mentioned note and the interest due thereon. And the said Mrs. Emma C. Stollenwerek hereby promises and agrees to so credit the dividends and to use reasonable diligence in investing or causing said dividends to be invested in such a way as to bear interest, and when the interest thereon has been collected shall pay over the said interest to the said Mrs. D. E. Cobbs during her natural life.</p> <p>“It is understood and agreed that the said Mrs. D. E. Cobbs shall have no interest or ownership in said dividends to be received from said bankruptcy court, up to the full amount of said note and interest, and the agreement on the part of the said Stollenwerek to pay her interest to be derived therefrom is to be null and void and of no effect on the death of the said Mrs. D. E. Cobbs.</p> <p>“It is further understood and agreed that if the amount that may be collected by said Stollenwerck from said dividends and the amount collected from her own claim filed in said proceedings exceed the amount due on said note, then such excess shall be paid over to said Mrs. D. E. Cobbs or invested by the said Stollenwerek for such time as said Cobbs may elect.</p> <p>“In witness whereof, the parties hereto have hereunto set their hands and seals, the day and year first above written.</p> <p>“.[Signed] D. E. Cobbs. [L. S.]</p> <p>“.[Signed] Emma C. Stollenwerek. [L. S.]”</p> <p>The bill was filed under section 4287, Code 1907, and it does not meet the requirements of section 4293. When properly construed, the assignment and agreement was not an assignment in trust for the use of Mrs. Cobbs. 104 Ala. 481, 16 South. 534; 9 Enc. Plead, and Prae. 687, and cases cited. The agreement to refund any excess of the dividends cannot affect the matter. 129 Ala. 377, 30 South. 618; 119 Ala. 513, 24 South. 846 ; 221 U. S. 333, 31 Sup. Ct. 575, 55 L. Ed. 758. 36 L. R. A. (N. S.) 370, Ann. Cas. 1912D, 497; 12 Ala. App. 546, 67 South. 794.</p> <p>It is unnecessary to cite anything more than a statute, but attention is called to the following cases, as fully upholding the decision of the court: 128 Ala. 129, 29 South. 637; 152 Ala. 452, 44 South. 693; 129 Ala. 377, 30 South. 618; 89 Ala. 561, 8 South. 68, 18 Am. St. Rep. 156; 132 Ala. 92, 31 South. 36; - 85 Ala. 369, 5 South. 164, 7 Am. St. Rep. 57; 68 Ala. 463; 87 Ala. 263, 6 South. 346, 13 Am. St. Rep. 31; 203 Ala. 395, 83 South. 139; 62 Ala. 477; 121 Ala. 84, 25 South. 571, 77 Am. St. Rep. 30; 196 Ala. 397, 72 South. 122; 200 Ala. 638, 77 South. 12; 110 Ala. 511, 18 South. 135, 55 Am. St. Rep. 35.</p>

Foster, Judge. Action by George W. Schrimscher against Walker D. Hines, as Director General of Railroads, operating the Mobile & Ohio Railroad, for damages for killing a dog. Judgment for the plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 450, Acts 1911. Section 5473, Code 1907, has no reference to stock or animals not injured at a crossing. 85 Ala. 481, 5 South. 173.

<p>Appeal from Circuit Court, Greene County; R. I. Jones, Judge.</p> <p>Ejectment by Isora Amelia Glover and others pro ami against George T. Webb. Judgment for defendant, and plaintiffs appeal'.</p> <p>The instrument is a deed, and not a jvill, 172 Ala. 48, 55 South. 161; 106 Ala. 131, 18 South. 60; 201 Ala. 11, 75 South. 302; 148 Ala. 339, 42 South. 450; 186 Ala. 545, 65 South. 49, Ann. Cas. 19161), 994; 180 Ala. 396, 61 South. 75; 194 Ala. 371, 69 South. 648. Webb acquired no title or interest in any land not owned in fee by Williamson Glover at the time of his' death. 129 Ala. 432, 29 South. 592; 156 Ala. 163, 47 South. 75; 112 Ala. 539, 20 South. 952; 108 Ala. 581, 18 South. 554; 201 111. 292, 66 N. E. 357; 21 Or. 339, 28 Pac. 78.</p> <p>The deed from Glover to Webb conveyed Glover’s interest, acquired under the deed from his father. 17 A. & E. Enc. of Law. 299; 139 Fed. 971, 72 C. C. A. 9, 2 L. R. A. (N. S.) 185'; 45 Ohio St. 577, 16 N. E. 475; 70 Ohio St. 36, 70 N. E. 954, 1 Ann. Cas. 618; 83 Vt. 212, 74 Atl. 1115,, Ann. Cas. 1912A, 313; 7 Ala. App. 172, 62 South. 303; 1 Ala. App. 148, 55 South. 268; 6 Ala. App. 61, 60 South. 591.</p>

<p>Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.</p> <p>Action by Wade H. Therrell, against the Mobile Light & Railroad Company, for damages for injuries as a passenger while alighting from a street car of the defendant. Judgment for the plaintiff, and the defendant appeals.</p> <p>The second count, after setting forth the facts as stated in the first count, further avers that the defendant’s servants in charge of the car upon which plaintiff was a passenger knew the character of the ground at the point where it stopped its car, and knew that the ground was rough and irregular and a considerable distance below the step of said car, and knew that plaintiff was upon its car and that he was crippled and walked with cratches, and knew that he intended to leave said car at Prichard, and knew that it was dangerous for him to leave said car without assistance at the point at which said car had stopped, and that if he did so he would probably be injured, and with said knowledge and a present consciousness of said matters, the defendant stopped car at said corner, and invited plaintiff to leave said car, and did not assist him in' doing so, and by reason of the wantonness of the defendant, plaintiff on leaving said car fell and was injured as aforesaid.</p> <p>The first count was demurrable, because not alleging that the place was dangerous, but only that it was dangerous for a person walking on crutches, without alleging that plaintiff was such a person. The second count was likewise demurrable. 142 Ala. 492, 3S South. 836; 156 Ala. 326, 47 South. 323; 91 Ala. 244, 9 South. 165; 110 Ala. 157, 20 South, 67; 116 Ala. 294, 22 South. 546; 132 Ala. 469, 32 South. 1014. The second-count alleged a corporate wrong, which was not proven, thus entitling the defendant to the affirmative charge. 140 Ala. 581, 37 South. 387; 154 Ala. 620, 45 South. 898; 141 Ala. 372, 37 South. 329; 139 Ala. 161, 34 South. 389; 152 Ala. 171, 44 South. 627, 12 L. R. A. (N. S.) 3S9; 153 Ala. 189, 44 South. 1032. The court erred in its charge as to recovery of damages. 139 Ala. 161, 34 South. 3S9; 158 Ala. 421, 48 South. 85; 94 Ala. 226, 10 South. 236; 167 Ala. 212, 52 South. 594; 150 Ala. 402, 43 South. 574; 7 Ala. App. 462, 61 South. 22; 162 N. Y. 193, 56 N. E. 497; 108 N. Y. Supp. 917, 124 App. Div. 29; 17 G. J. 740. In the absence of a request- for assistance, there was no duty on the conductor to assist plaintiff to alight. 198 Ala. 170; 2 Ala. App. 516.</p> <p>The first count was sufficient. 190 Ala. 296, 67 South. 516; 183 Ala. 224, 62 South'. 772; 146 Ala. 291, 40 South. 559, 9 Ann. Oas. 852; 133 Ala. 526, 32 South. 261; 13 Ala. App. 515, 69 South. 306; 161 Ala. 306, 49 Soqth. 909. The allegation of the second count was sufficient. 196 Ala. 63, 71 South. 701; 175 Ala. 345, 57 South. 876, Ann. Cas. 1914C, 1037; 153 Ala. 176, 44 South. 1019. If there was a variance, it must be called to the attention of the court, when the affirmative charge is requested because thereof. Rule 34, S. C. Prac.; 202 Ala. 175, 79 South. 663; 201 Ala. 160, 77 South. 687; 201 Ala. 700, 78 South. 409; 198 Ala. 214, 73 South. 464. While special damages must be alleged, to be recovered for, they may be alleged in very general terms. 164 Ala. 18, 51 South. 242, 137 Am. St. Rep. 17; 166 Ala. 481, 52 South. 35; 150 Ala. 331, 43 South. 342; 133 Ala. 233, 32 South. 13. Every contention made by the appellant is met by recent legislation, and the rules of the Supreme Court. Acts 1915, p. 815; rules 34 and 45, Supreme Court; 196 Ala. 683, 72 South. 313; 197 Ala. 473, 73 South. 33; 15 Ala. App. 385, 73 South. 657; 199 Ala. 164, 74 South. 63; 202 Ala. 222, 80 South. 44; 202 Ala. 352, 80 South. 435.</p>

Bill by Jerry Smith against the City of Montgomery to enjoin the enforcement of an ordinance relative to water as diseriminatory and unjust. From a decree overruling demurrers to the bill, the City appeals. The city had the right to enact the ordinance in the terms in which it was enacted. Acts 1890-91, p. 243; 104 Ala. 325, 16 South. 123. Counsel discuss and criticize cases cited by the court in its decree in overruling the demurrer, but cite no further authority.

M. Miller, Judge. Bill by the Dallas Compress Company against Julins Diepold and others to subject certain property to the satisfaction of a judgment and for general relief. The bill was filed against Julius Liepold and Samuel A. Summers as executors of the last will and testament of Bertha Liepold and as individuals. Jeannetta Summers was als’o made a party respondent. From decree sustaining demurrers to the bill, complainant appeals.

<p>I. Reformation of instruments <&wkey;25 — Grantor’s carelessness as to stating point of beginning held not carelessness barring relief.</p> <p>While grantor seeking reformation of deed was unquestionably careless in designating the point of beginning- from which the boundary lines of his excepted lot were to be fixed, yet this did not amount to culpable and injurious negligence which would bar him from corrective relief; for, so far as such lot is concerned, his mistake in description could not have injured the grantee, and did not amount to a breach of legal duty.</p> <p>2. Fraud <S=^I3(2) — Grantor liable for misrepresenting boundaries, whether knowingly or innocently false.</p> <p>A grantor whose false statements as to boundaries induced the grantee to buy is liable in damages as for deceit, whether his statements were knowingly or innocently false.</p> <p>3. Reformation of instruments &wkey;>36(l) — Denial of reformation of deed to grantor not offering to do equity held correct.</p> <p>A bill for reformation of a deed so far partakes of the nature of a bill for specific performance that it requires an offer to do equity by complying with the stipulations of the contract on complainant’s part to be performed, and in the absence thereof denial of relief was proper, whether upon the theory of injurious deceit by complainant or his failure to make good his obligations.</p> <p>4. Equity <§=»54 — Not active in enforcing unjust claims.</p> <p>Courts of equity ought not to be active in enforcing claims which are not under all the circumstances just as between the parties.</p> <p>5. Reformation of instruments &wkey;>37 — Cross-bill not necessary, where complainant failed to offer to do equity.</p> <p>In grantor’s suit against grantee for reformation of a deed, a cross-bill is not necessary for the grantee to take advantage of matters of inequity by way of defense merely, and when thus interposed, and complainant fails to offer to do equity, and the evidence establishes the averments of the answer, the bill must be dismissed.</p> <p>other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Appeal and error <@=1008(1) — Finding of court ore tenus equivalent to verdict of jury.</p> <p>Finding of facts by trial court on testimony given ore tenus on a trial without a jury is equivalent to the verdict of a jury.</p> <p>2. Money received &wkey;>l — Based on theory that one person shail not be enriched at expense of another.</p> <p>An action for money had and received is based upon the theory that one person shall not unjustly be enriched at the expense of the other, and is equitable in nature, and lies wherever one has received and holds money which in good conscience belongs to another, or where one wrongfully converts the property of another and the tort is waived and recovery is desired of proceeds arising from such conversion.</p> <p>3. Money received <@=l — Law implies promise to pay money belonging to another.</p> <p>The law implies a promise to pay whenever one person has and withholds money belonging to another which in equity and good conscience he has not the right to retain from such other person.</p> <p>4. Joint adventures <&wkey;l — Contractual rights held sufficient consideration for agreement.</p> <p>An agreement whereby defendant paid the purchase price of land for resale with division of profits with plaintiff was supported by a sufficient consideration where plaintiffs had a contractual property right with the vendor which they surrendered to defendant and which had an actual monetary value capable of measurement.</p> <p>5. Contracts <&wkey;50 — Nature of consideration stated.</p> <p>A consideration sufficiently exists or is implied if it arises from any act of the plaintiff from which the defendant or a third party at defendant’s instance derived a pecuniary benefit, if such act is performed by the plaintiff to the desired end, with expressed or implied assent of the defendant, since that which creates and carries a benefit to the party promising, or causes trouble, injury, inconvenience, prejudice, or detriment to the other party, is a sufficient consideration to uphold a promise.</p> <p>6. Frauds, statute of <@=49 — Statute held not to apply to agreement capable of performance within a year.</p> <p>The statute of frauds does not apply to an agreement concerning purchase and sale of land and division of profits which is capable of performance within a year.</p> <p>ig^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Dallas County; B. M. Miller, Judge.</p> <p>Action by W. C. Dyer against E. C. Christie. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.</p>

<p>1. Sales <&wkey;l6l— Delivery to carrier constitutes delivery to buyer.</p> <p>Deliveries to carriers in response to shipping orders by the buyer were in legal effect deliveries to the buyer.</p> <p>2. Sales &wkey;>378 — In seller’s action against buyer, plea of seller’s breach by delivering unmerchantable fruit held not sufficiently specific.</p> <p>In a seller’s action against buyer for breach of contract, held that’ defendant’s plea upon theory of plaintiff’s breach of contractual obligation to deliver merchantable fruit, having knowledge of defendant’s purpose to buy and ship with view to resale, should have more distinctly defined the obligation by stating whether it was expressly assumed, or resulted merely from implied warranty.</p> <p>3. Sales &wkey;>378 — Where complaint declared upon separable breaches, matter pleaded in set-off anil recoupment should distinctly refer to the appropriate breaches.</p> <p>Where a seller’s complaint against buyer declared upon separable breaches by defendant, by failure to pay for fruit actually delivered and by failure or refusal to accept deliveries, the special matters of set-off and recoupment should be distinctly referred iri the averments of the pleas to the appropriate assignments of separate breach.</p> <p>4. Sales <&wkey;273(I)— Seller by delivery to buyer impliedly warrants fruit to be fit for shipment and merchantable. '</p> <p>By delivering perishable fruit to carriers for buyer, seller contracted that the fruit would be properly packed, fit for shipment, merchantable and reasonably fit for resale by buyer in the ordinary course of its business; the buyer having no opportunity to inspect until the fruit arrived at destination on the lines of the carriers, and having to rely upon the skill or judgment of sellers to supply commodity engaged.</p> <p>5. Sales <&wkey;>266 — Where delivery was to carrier as buyer’s agent, there was no implied warranty on the part of seller against deterioration in transit.</p> <p>Where seller made delivery to carrier for buyer, in the absence of evidence that the parties contemplated that seller should assume risk of deterioration in transit other than resulting from improper packing or unfitness at the place of delivery for shipment, there is no implied warranty that seller assures buyer against deterioration in transit.</p> <p>6. Appeal and error <&wkey;1015(1) — Grant of new trial not disturbed, unless evidence manifestly in favor of verdict.</p> <p>An order granting a new trial will not be disturbed on appeal unless the effect of the whole evidence is manifestly and palpably in favor of the verdict.</p> <p><g=5>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

L. Brewer, Judge. Action by Emerson Bice, by next friend, against John M. Steverson, for damages for personal injuries. Judgment for defendant, and plaintiff appeals. The allegations common to all the counts of the complaint are that plaintiff was a minor, 16 years of age, and was in the service and employment of defendant, and engaged in aiding in checking lumber and loading same upon a railroad car, at Kellyton, Ala.

Grayson, Judge. Action in assumpsit by the Standard Motor Oar Company against Samuel Zimmern. Judgment for the plaintiff, and the defendant appeals. Transferred from Court of Appeals, under section 6, Acts 1911, p. 449.

Appeá.1 from Circuit Court, Geneva County; H. A. Pearce, Judge. Assumpsit by the G. P. Dowling Hardware Company against C. D. Chapman & Co. Judgment for the plaintiff, and the defendant appeals.

Clair County; O. A. Steele, Judge. Action by J. A. Vaughan against the Alabama Fuel & Iron Company in trespass on the case. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

L. Martin, Judge. Action by, O. B. Moon against the City of Montgomery and Walker D. Hines, as Director General of Railroads, for damages for injuries sustained by plaintiff’s minor child. Judgment in favor of the Director General and for plaintiff against the City of Montgomery, and it appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

Circuit Court, Madison County ; Robt. O. Brickell, Judge. Action by Q. C. Lemley against T. K. Mullins for damages to a horse and buggy in an automobile collision. Judgment for the plaintiff, and the defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

• Appeal from Circuit Court, De Kalb County; W. W. Harralson, Judge. Action by Mrs. Alice Dickerson, as administratrix, against John Pope, for breach of contract for making a crop. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. The court should have sustained the demurrers to the complaint. 14 Ala. App. 529, 71 South. 963.

W. Harralson, Judge. Assumpsit and conversion by Julia Ballenger against her son, J. J. Ballenger. Judgment for the plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. Motion to strike was the proper method of raising the question. 112 Ala. SO, 20 South. 502. The amendments were against the spirit and letter. Section 5367, Code 1907. The amendments were within the Code, and related back to the filing of the action.

<p>Appeal from Circuit Court, Blount County: W. J. Martin, Judge.</p> <p>Action by P. L. E. Fowler against T. J. Murray for damage by trespass to land. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals, under section 6, Acts 1911, p. 449.</p> <p>It was improper to permit testimony as to where timber had been out merely from looking at the appearance of the stumps. 5 Enc. of Evid. 526. Court erred in admitting evidence as to statements made concerning thé location of the line. 4 R. C. L. 122; 1 Greenleaf,. § 145. Evidence as to the value of the timber when worked into heading timber was not admissible. 151 Ala. 435, 44 South. 533; 38 Cyc. 2099. Plaintiff and J. D. Fowler owned the land jointly and there could not be any recovery under counts 1 and 2 until J. D. Fowler was made a party plaintiff. 112 Ala. 539, 20 South. 952; 108 Ala. 581, 18 South. 554; 115 Ala. 334, 22 South. 163; section 3754, Code 1907. Therefore there should have been an election. 26 R. C. L. 956; 18 Ala. 229; 36 R. C. L. 950.</p> <p>Under the facts in this case, the plaintiff, being the widow, was entitled to recover. 24 Ala. 466 ; 75 Ala. 390; 111 Ala. 32, 20 South. 648.</p>

J. Garrison, Judge. Action by Theopolis Jones against J. W. Maddox, for damages for the death of a colt. Judgment for plaintiff, and defendant appeals. Transferred from court of appeals under section 6, Acts 1911, p. 449.

<p>Appeal from Circuit Court, Franklin County ; O. P. Almon, Judge.</p> <p>W. H. Bradford having recovered a judgment against H. L. Lansford and R. M. Buttram, at execution thereon, which was levied on a gasoline engine and gristmill, P. A. Buttram interposed a claim, and on trial there was judgment for the claimant for the property, and the execution plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.</p> <p>P. A. Buttram was the wife of R. M. But-tram, and the evidence tended to show that in the purchase of the mill her money was used under her direction, and that the profits arising from the operation of the mill met the deferred payments. Testifying as a witness, claimant stated that, after paying off a mortgage in the sale of her land, she had $900 left, $350 of which was invested in the mill, and on cross-examination the plaintiff sought to show that she had spent $1,400 in the purchase of a house and lot, and asked her if it all did not come out of the $900, and also asked the following question:</p> <p>“Now is it not a fact that all the money that you had at that time was $350, and that you paid it on the mill?”</p> <p>Court sustained objection to these two questions.</p> <p>Court erred in not permitting the statements of the defendant in execution as to his possession and ownership of the property to be ’ admitted in evidence. 198 Ala. 290, 73' South. 502; 66 Ala. 514. Court also erred in excluding testimony of the claimant, sought to be brought out on the cross-examination. 198 Ala. 290, 73 South. 502; 8 Ala. 650; 4 Ala. App. 83, 58 South. 809.</p> <p>Any effort on the part of the defendant in execution to resist payment of the judgment could not affect claimant’s rights. 148 Ala. 513, 41 South. 845; 148 Ala. 261, 41 South. 667; 117 Ala. 387, 23 South. 125. There was no error committed in the rulings on the cross-examination of the claimant. Sections 4486, 4487, and 4492, Code 1907; 112 Ala. 262, 20 South. 742, 33 L. R. A. 59, 57 Am. St. Rep. 28; 69 Ala. 72; 88 Ala. 557, 7 South. 188; 67 Ala. 599; 75 Ala. 351. .</p>

Wilkinson, Judge. Assumpsit by Cleveland Judkins against the Alabama Tailoring Company. Judgment for plaintiff and defendant appeals. Transferred from court of appeals, under section 6, Acts 1911, p. 449. The court improperly construed the contract, and erred in rendering the judgment, which this court will reverse, and render such judgment as should have been rendered. Section 5361, Code 1907. No brief came to the Reporter.

P. Heflin, Judge. David S. Anderson was convicted of practicing law without a license in violation of a city ordinance of the city of Birmingham and he appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. This being a taxing statute or ordinance, it must be strictly construed against the taxing power, and in favor of the citizen.

K. McMorris, Judge. Assumpsit by Burnett & Bean against Dalee Miller. Judgment for defendant, and plaintiffs appeal. Transferred from Court of Appeals under section -6, p. 449, Acts 1911. Complaint was on the common counts for work and labor done and sought also to establish a lien.

Kyle, Judge. Assumpsit by W. D. Cannon, Jr., against Dillehay Bros, and others, on certain promissory notes. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals, under section 6, p. 449, Acts 1911. Court erred in directing verdict for the plaintiff. Sections 5007, 5010, Code 1907; 3 R. C. L. 1025; 189 Ala. 418, 66 South. 510; 119 N. Y. 357, 23 N. E. 801, 16 Am. St. Rep. 840-; 9 Ala. App. 352, 63 South. 742 ; 38 Neb. 620, 57 N. W. 664, 41 Am.

<p>Appeal from Circuit Court, Jefferson County ; Dan A. Greene, Judge.</p> <p>Action by Mrs. Rhoda Dorman, as administratrix of the estate of George M. Dorman, for the damages for the death of said Dorman, against the St. Louis & San Francisco Railroad Company, the action being under the federal Employers’ Liability Act. Judgment for the plaintiff, and defendant appeals.</p> <p>The trial was had on count 2 of the complaint, which is as follows:</p> <p>“Plaintiff, who sues as the administratrix of the Estate of George M. Dorman, deceased, claims of tlje defendants $100,000 damages for that on, to wit, July 22, 1917, plaintiff’s intestate, while in the employment of the defendant, St. Louis & San Francisco Railroad Company, a common carrier by railroad then and there engaged in carrying freight for hire between Birmingham, Ala. and Amory, Miss., and while employed by said defendant in said commerce, was killed in the county of Jefferson, state of Alabama, as follows: Plaintiff’s intestate, while a flagman on a train bound from Birmingham, Ala., to Amory, Miss., which train at said time was carrying freight for hire between said points in Mississippi and Alabama, was caused to fall from said train and was killed by said fall near Palos, Jefferson county, state of Alabama. Plaintiff avers that the death of her intestate resulted in whole or in part from the negligence of W. E. Lange, then and there an employee of the defendant, St: Louis & San Francisco Railroad Company, and while acting within the line and scope of his employment as such employee of said defendant, which negligence consisted in this: Said-Lange so negligently stopped said train as to negligently cause intestate to be precipitated therefrom.”</p> <p>The demurrers raised three points: (1) That the count stated no cause of action under the federal Employers’ Liability Act; (2) that the complaint did not show that at the time of his death Dorman was engaged in interstate commerce; (3) that the complaint failed to show that at the time Dorman fell from the train he was performing duties under his employment in interstate commerce. These demurrers were overruled, and issue was joined on the plea of the general issue and assumption of risk.</p> <p>The only witness who testified as to the facts of the case as related to the accident was the engineer, Lange, who was in charge of the train and who was called as a witness by the plaintiff. The following facts are without dispute: The intestate, Dorman, was the rear brakeman or flagman on one of defendant’s freight trains between Birmingham, Ala., and Amory, Miss. This train left Birmingham before sunrise in the morning, and the last time Dorman was seen alive, so far as the record shows, was at East Thomas, just out of Birmingham. The train stopped at Palos, about 15 miles away after daylight, to take on water for the engine, and then proceeded to Jasper, where Dorman’s absence from the train was first discovered. Palos is just west of the Little Warrior river, which is crossed by the railroad bridge, and Dorman’s body was found at the foot of one of the piers of this bridge on the west side next to Palos, about 19 car lengths from the water tank, the water tank being 11 car lengths west of the bridge, and the bridge being about 18 or 19 car lengths in length. The train in question consisted of the engine, 28 loaded freight cars, and the caboose, upon which the duties of Dorman’s employment required him to be, he having no duties which called him to any other part of the train. The average length of freight cars such as these is approximately 42 feet from coupler to coupler. With respect to his operation of the train, preliminary to his stop for water at the tank, the engineer, Lange, testified as follows:</p> <p>“As I approached the trestle, I was going about 20 miles an hour. I made several application of the brakes to my train, as I made the stop at the tank at Palos. When I made the first application I was tipping over the hill from Ooal Creek. The top of the Coal Creek hill is about a mile and a quarter from the trestle, about a mile from the south or east end of the trestle, it is down grade from the top of the hill to the trestle, and it is about level from the trestle to the water tank. I then made a service application. A service application is drawing the air out of the train line gradually. I did it to steady my train. It would have gotten too great speed if I hadn’t done it going down the grade. I applied the brakes at the trestle, service application of the air. I applied 10 pounds then, and didn’t make any more application. I made one as I came over the top 'of the hill, and I made another of 10 pounds when I got to the trestle. It stopped me at the water tank. I did not go beyond the water tank. After I stopped at the water tank I took water. I did not see anything that was wrong. I stopped right at the water tank, and didn’t have to move the engine after I stopped. I turned my water right on then. I hit right at the spot.”</p> <p>In further explanation he said:</p> <p>“On the engine that I was operating on this occasion I had 70 and 90 pounds of air available for use on the air brake. That means 70 pounds in the train line and 90 pounds in the main auxiliary. There is a connection between the air in the train line and the air in the main reservoir. The main reservoir is on the engine and is an extra supply — excess pressure of the air; it is in case you want to use your air. There are 90 pounds of air stowed away in the reservoir on the engine to recharge your train line after you use your air, after you use some of the air out of your train line. The air in the train line is used to operare the automatic brakes. In making the stop for the Falos water tank on this occasion there were two different brakes used. I made two applications of the brakes in making the stop. I tipped over Coal Creek lull about 30 miles an hour; Coal Creek is about 2% miles from Palos. I was going pretty lively and the road was crooked, and there was a yard limit at Palos which I had to approach under control; so, after tipping over the hill, I made a reduction of about 10 pounds in order to steady my train. By the time I passed through Bessie [a junction point on the railroad about 1% miles from the south end of Palos bridge] I had my train down to about 20 miles an hour. I released my brakes and I held my train with the driver brake on the engine. I have got a feature on the locomotive that will release the brakes on the train and hold the brakes on the engine and tank; an,d I left the driver brakes set until I got to Palos. That means that I just almost held my speed of 20 miles an hour from Bessie, which is down hill, to Palos, then when I got on to the bridge I made another reduction of the train line. In the meantime my train line was recharged again to seventy pounds. I released my brakes when I first tipped over the hill. My train line was recharged again.”</p> <p>The testimony of other witnesses explains that the release of the brakes allows a recharging of the air in the train line in from two to four minutes, thereby making the brakes again available for use through application of the air.</p> <p>Lange further testified:</p> <p>“I had 70 pounds in my train line again and still steadying my train with the driver brake and that bunched my train. The cars were all bunched when I tipped over the hill, when I made the first application. By my train being bunched I mean that there is a certain amount of slack in the cars, the springs; some of them are weaker and some of them are stouter, and there is a certain amount of slack in the train, and it has got to be there or else you couldn’t keep these trains together. The effect of bunching the train is that it will make one car bump up against the other. My train was bunched about half a mile before I got to the south end or the Birmingham end of the Palos bridge on the occasion that I made this stop. I made an automatic application of the air of 10 pounds. That is called a service application. After making that service application I did not make any other application to stop at the water tank. After making the service application of 10 pounds of air, it is not possible to make an emergency stop. You cannot make an emergency stop after you have weakened your train line. You have got to have 70 pounds in the train line in order to make an emergency application; otherwise you cannot make an emergency application from a service application. After you have made a service application you have to recharge your train line before you can make an emergency stop. I made my service application that I spoke of when. my train reached the trestle; that is, when the engine reached the trestle.”</p> <p>Plaintiff examined four other witnesses, three of whom were locomotive engineers of experience, and the .other a railroad employs, upon hypothetical questions, which were designed to show that the air brake applications which Lange testified he made to his train and thereby brought 1ns engine to a stop right at the tank would not have been effective to do so, and that with such applications his engine would have gone beyond the tank, and that at the tank would have required an emergency application, the result of which would have been a sudden jar to the caboose and other cars in the rear. This testimony is sufficiently discussed in tthe opinion of the court. The evidence showed that plaintiff was the surviving widow of her intestate, and that she was dependent upon him for support. The defendant requested the general affirmative charge and several special instructions, which were refused, and there was verdict and judgment for the plaintiff in the sum of $15,000.</p> <p>The complaint was subject to the demurrers, for the reason that it failed to allege that the decedent left surviving dependents entitled to the fruits of the recovery under the provisions of the Federal Act. 235 U. S. 308, 35 Sup. Ct. 32, 59 L. Ed. 242 ; 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 19140, 176 ; 227 ü. S. 145, 33 Sup. Ct. 224, 57 L. Ed. 456; 228 U. S. 173, 33 Sup. Ct. 426, 57 L. Ed. 785; 223 U. S. 248, 32 Sup. Ct. 220, 56 L. Ed. 419, 38 L. R. A. (N. S.) 57; 157 Ky. 590, 163 S. W. 752; 74 Wash. 897, 133 Pac. 609, L. R. A. 1916C, 800; 85 N. J. Law, 491, 89 Atl. 990; 153 Ky. 363, 155 S. W. 1119, 47 L. R. A. (N. S.) 31; 20 Ca. App. 49, 92 S. E. 390. Also for failing to aver that the employee was engaged in the performance of duties under his employment in interstate commerce. 233 U. S. 473, 34 Sup. Ct. 646, 5S L. Ed. .1051, Ann. Cas. 1914C, 163; 169 Ala. 3S9, 55 South. 989, Ann. Cas. 1912B, 366; 166 Ala. 449, 51 South. 987; 159 Ala. 1S5, 48 South. 664; 162 Ala. 619, 50 South. 146. There was no proof that the engineer was negligent, or, if negligent, that intestate’s death resulted therefrom. 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; 183 Ala. 132, 62 South. 757; 163 Ala. 240, 50 South. 996; 182 Ala. 669, 62 South. 527; 35 N. E. 89; 91 Ky. 526, 16 S. W. 275; 69 N. H. 285, 46 Atl. 467. The sudden application of air is not negligent, unless the engineer knows or has reasonable cause to believe that the safety of other employees will be endangered. 110 Ala. 185, 20 South. 325; 99 Ala. 346, 12 South. 612; 148 Ala. 153, 41 South. 856; 164 Ala. 103, 51 South. 147; 198 Ala. 311, 73 South. 550. The doctrine of res ipsa loquitur does not apply. 148 Ala. 665, 41 South. 634; 107 Ala. 400, 18 South. 30; 192 Ala. 665, 69 South. 73; 196 Ala. 113, 72 South. 17; 247 U. S. 367, 38 Sup. Ct. 535, 62 L. Ed. 1167; 200 U. S. 480, 26 Sup. Ct. 303, 50 L. Ed. 564.</p> <p>The rules of practice and procedure of the forum govern an action of this character. 241 U. S. 485, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367; 196 Ala. 25, 71 South. 335; 1 Robert’s Eed. Liability, § 427. The complaint was sufficient. 33 Ala. 642; 16 Ala. App. 633, 80 South. 736 ; 207 Eed. 311, 125 C. C. A. 55. The proof cured the infirmity arising from lack of averment as to the pecuniary loss to the widow.- 202 Ala. 599, 81 South. 339; 207 Eed. 314, 125 C. C. A. 55. The absence of averment of pecuniary loss was cured by the positive instructions of the court. 192 Ala. 534, 68 South. 417, Ann. Cas. 1917D, 929; 184 Ala. 420, 63 South. 992, and authorities supra. The evidence was sufficient to establish the negligence. 95 Ala. 397, 11 South. 341; 98 S. C. 348, 82 S. E. 433; 69 Iowa, 450, 30 N. W. 25, 58 Am. Rep. 227; 191 U„ S. 64, 24 Sup. Ct. 24, 4S L. Ed. 96; 77 Ga. 393, 3 S. E. 307; 4 A. & E. Enc. of Law, 76.</p>

<p>1. Work and labor <&wkey;I7— One who accepts services rendered by another impiiedly iiable therefor.</p> <p>In the absence of an express contract, where valuable services are rendered by one person to another, and are knowingly accepted, the law assumes and implies an obligation to pay for such services what they are reasonably worth; but such rule is not applicable where a third person has expressly contracted to do the work, and the person for whom the work is being done is not informed that the person who does the work is looking to him, and not to third person, for compensation.</p> <p>2. Physicians and surgeons ¡&wkey;24(4) — Whether physician’s employment covered services in other and distant plants held for jury.</p> <p>In an action against a corporation by its physician in a certain city for services rendered in treatment of an employé who had been injured and had received first aid treatment in another town, in which the corporation had a plant, and in which they employed a physician, defended on the ground that such services came within the physician’s contract, the question of whether tlie plaintiff’s contract of employment required him to give medical attention only to/employés working in city in which such physician was located, or whether it covered services in treatment of employes injured in plants located at other points, held a question for the jury.</p> <p>3. Physicians and surgeons i&wkey;>24(4) — Whether employer accepted physician’s services, knowing that physician looked to employer for compensation, held for jury.</p> <p>In an action against a corporation, with plants located at different points, by a physician located at one point, for services in treatment of an employé injured in and given first aid treatment at another point, at which the corporation had another physician, the question of whether the corporation accepted such services, knowing 'that plaintiff physician looked to it for payment, so as to estop it from denying liability for services, held a question for the jury.</p> <p>4. Physicians and surgeons &wkey;>24(3) — Custom as to treatment by physician located at one point of defendant’s employés injured in plants at other points held competent.</p> <p>In an action against a corporation, with plants located at different points, by a physician under contract to treat employés at one point, for services in treatment of an employé, who had been injured and had received first aid treatment at another point, at which the eorporation had other physicians, involving the | question whether plaintiff’s contract required him to treat only employés injured in the plant at the point at which he was located, or required him to treat other' employés injured in other plants and sent to the hospital at such point for further treatment, testimony as to the custom relating to treatment of employés from plants located at other points held competent and relevant. „</p> <p>cgssB'or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>5. Appeal and error <©=5231 (3) — General objection to evidence insufficient.</p> <p>A general objection to admission of testimony is insufficient to warrant consideration thereof on appeal.</p> <p>cgr=>Eor other oases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Appeal and error &wkey;763 — Assignments of error not insisted on in original brief cannot be urged in supplemental brief.</p> <p>Assignments of error not insisted on in appellant’s brief filed on original submission will be treated as having been waived, even though argued in supplemental brief subsequently filed.</p> <p>2. Appeal and error &wkey;737 — -Assignment of error complaining of overruling of demurrer not required to assign separately the ruling on the separate grounds of demurrer.</p> <p>Assignment of error complaining of the overruling of demurrer need not assign as separate errors the court’s ruling on the different grounds of the demurrer, the demurrer being an entity in pleading.</p> <p>3. Contracts <&wkey;IO(2) — Expenditure of time and money in effort to sell land supplied want of mutuality.</p> <p>The expenditure by brokers of time, money, or effort to sell land, under what was originally a unilateral brokerage contract, supplied the element of mutuality, and made the contract binding on the owner.</p> <p>4. Brokers <&wkey;>46 — Contract held to entitle brokers to commission though they did not procure purchaser.</p> <p>One who agreed to pay brokers a commission, “should a sale be made at any time by any one within 12 months from date,” is liable on a sale of the land, though brokers did not procure purchaser.</p> <p>5. Brokers <&wkey;>46 — Contract held to entitle brokers to commission on sale of land, notwithstanding withdrawal of the land under contract.</p> <p>Where brokerage contract provided for payment of commission “should a sale be made at any time by any one within 12 months from date,” brokers were entitled to their commission on a sale of the land within such period notwithstanding withdrawal of the land from the brokers under provision of contract providing therefor.</p> <p>6. Pleading &wkey;>8(3)— Allegation that brokers “made or brought about” sale held to state a fact and not a conclusion.</p> <p>In brokers’ action for commission, allegation that the brokers ‘‘made or brought about” the sale to the purchaser asserted a traversable fact, and was not merely the allegation of a conclusion.</p> <p>7. Appeal and error <@=»1050(l) — Admission of testimony held harmless.</p> <p>In brokers’ action for commission, admission of testimony tending to show owner’s willingness to sell at a certain figure, at which he appeared to have later sold the land, held harmless.</p> <p><&wkey;Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

W. Harralson, Judge. Petition of J. F. Hooper for certiorari, directed to the Town of Albertville and the officers of the municipality to quash an assessment of taxes for the year 1914. From a judgment denying the certiorari; petitioner appeals. Transferred from Court of Appeals under section 6 of the Act of 1911, p. 449.

Greene, Judge. Bill by Sam Wallace against the Board of Revenue of Jefferson County and the individuals composing the same, to enjoin the sale of certain bonds and for- general relief. From a decree denying relief, complainant appeals.

Appeal frem Circuit Court, Covington County; A. B. Foster, Judge. Action by L. R. Cross against the Louisville & Nashville Railroad Company and Ed McKenzie, for damages for the death of plaintiff’s minor child. Judgment for plaintiff, and defendants appeal.

Application of 'William M. Hill for certiorari to Court of Appeals, to review and revise the judgment of said court rendered in the case of William M. Hill v. State of Alabama, 88 South. 295. The fault of the opposing attorney in retaining the bill for more than 90 days ought to estop him from, entering a motion to strike the hill, because not signed within the 90 days.

H. Lee, Tudge. Application by'R. E. Gates and others for 'probate of the will of C. E. Gates, Sr., contested by Robert L. Goldsmith, as guardian ad litem of one of the minor legatees. Erom a decree admitting tho will to probate, 'the guardian appeals. The will was not properly executed. Section 6172, Code 1907; 36 Ala. 496; 40 Cyc. 1100 et seq.; 1 I-Ioust. (Del.) 98; 1 Har.

K. MeMorris, Judge. Bill in equity by M. A. Gibbons against Millie Gibbons and others to cancel and annul a conveyance of land. From a decree granting tlie relief prayed, respondents appeal.

Lee, Judge. Booker T. Whittle was convicted of murder in the first degree, and lie appeals. For brief, see the case of Dan Whittle v. State, post, p. 639, 89 South. 43. For brief, see the case of Dan Whittle v. State, post. p. 639, 89 South. 43.

<p>1. Criminal law &wkey;>274 — Defendant may not without permission withdraw plea of not guilty for purpose of moving to quash indictment.</p> <p>A defendant may not, without permission of the court, withdraw his plea of not guilty, for the purpose of making a motion to quash the indictment.</p> <p>2. Criminal law <&wkey;274 — Court may grant or refuse permission to withdraw plea of not guilty to permit motion to quash indictment.</p> <p>Under Code 1907, §§ 7159, 7567, it is within the sound discretion of the court to grant or refuse permission to withdraw a plea of not guilty for the purpose of making- a motion to quash the indictment.</p> <p>3. Criminal law <&wkey;321 — Grand jury presumed to continue until dissolved by expiration of term or order of court.</p> <p>A grand jury regularly impaneled is presumed to continue until dissolved by operation of law at the expiration of the term or by an order of the court.</p> <p>4. Indictment and information <&wkey;>l37(3) — Motion to quash indictment by reconvened grand jury properly overruled.</p> <p>It is not error to overrule a motion to quash an indictment returned by a grand jury reconvened by the court which had not been dissolved by expiration of the term or by order of the court.</p> <p>5. Criminal law &wkey;>l 144(9) — Order fixing day of trial presumed regular.</p> <p>Under Acts 1915, pp. 708, 709, amending Code 1907, § 6256, an order fixing the day of defendant’s trial is not required to be m the record where no question was raised before the trial court as to its sufficiency, and on appeal it will be presumed to have been regular.</p> <p><§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>6. Criminal law <&wkey;632 — Order summoning venire to appear on certain day set for trial without reciting setting of such date not error, where particuiar date set on continuance.</p> <p>Where, after the quashing of a special venire, a case was reset for a certain day, an order on defendant’s first arraignment commanding the sheriff to summon all persons constituting- the venire to appear on a certain day, "the day set for trial,” without reciting' the setting of such day, was not error; the subsequent orders being an affirmative compliance with the statute in fixing the date.</p> <p>7. Jury <&wkey;70(8) — Drawing of second venire, including regular jurors, members of quashed venire, not erroneous.</p> <p>Though a special venire drawn pursuant to (Jen. Acts 1919, pp. 1040, 1041, § 32, for the trial of 'a capital felony, composed of the regular venire drawn for the week plus the number drawn to complete tbe venire as fixed by the court, was quashed, it was not error to proceed to trial on a second special venire, consisting partly of regular jurors who were among the venire quashed, without drawing another regular venire, Code 1907, § 7258, requiring the court, after sustaining a challenge to the array or a motion to quash the venire, to draw a grand or petit jury, or both, as provided in section 7257, being inapplicable, it referring primarily to quashing a venire of regular jurors and the organization of special juries in default thereof.</p> <p>8. Criminal lav/ <&wkey;i 166!/2(5) — Error in selection of special venire not reversible ,where defendant given number ordered by court.</p> <p>Where a defendant was given the number of special veniremen ordered by the court from which to select a jury, there was no reversible error, though such venire included a number of regular jurors who were included in a former venire which was quashed.</p> <p>9. Criminal law <S»8I9 — Charge on effect of evidence given without written request should be withdrawn.</p> <p>In a prosecution for murder, a charge that, if defendant got into a sudden encounter or affray with deceased, was the assailant, and killed deceased with a weapon theretofore concealed, and deceased drew n'o weapon, such killing was murder in the second degree at least, under Code 1907, § 7086, if a charge on the effect of the evidence, and not requested in writing by one of the parties pursuant to section 5363, was properly withdrawn on objection.</p> <p>10. Criminal law &wkey;/1059(l) — Exception to withdrawal of charge not sufficient to review statement of reasons therefor.</p> <p>In a prosecution for murder, an exception to the withdrawal of a charge on the effect of a sudden encounter with deceased was not sufficient to review the explanatory statement of the court that “there is no evidence of any sudden encounter.”</p> <p>11. Criminal Jaw <&wkey;798(I)— Instruction each juror must believe defendant guilty beyond reasonable doubt to convict, but that, if one or more had such doubt, there could be no verdict, not erroneous.</p> <p>In a prosecution for murder, there was no error in instructing the jury that before they could convict each one must believe beyond a reasonable doubt that defendant was guilty, but that, if one or more entertained a reasonable doubt, there could be no verdict, but a hung jury.</p> <p>12. Criminal law &wkey;ri059(2) — Exceptions to general charge held insufficient, not being specific exception to part of oral charge objected to.</p> <p>In a prosecution for murder, where the court charged that, if any one of the jury had a reasonable doubt as to the defendant’s guilt, they could not return a verdict, an exception to tbe general charge, “where he charges the jury that if only two or three * * * have a roasonahle doubt, * * * it would be a hung jury, and'they could not return a verdict,” was insufficient, not being a specific exception to that part of the oral charge sought to be excepted to.</p> <p>13. Criminal iaw <&wkey;822(l) — Instruction jury could not acquit unless all reached conclusion defendant not guilty held not erroneous when referred to whole of charge.</p> <p>In a prosecution for murder, an instruction that, unless all the jury reached the conclusion defendant was not guilty, it could not acquit, but would be a bung jury, when referred to the rest of the charge that before tbe jury could convict each must believe beyond a reasonable doubt that defendant was guilty, but that, if one or more entertained a reasonable doubt, there could be no verdict, but a hung jury, was not erroneous.</p> <p>14. Criminal law &wkey;>865(l) — Instruction jury must stay till it arrived at verdict or was discharged not threat to compel verdict.</p> <p>In a prosecution for murder, an instruction that, unless all of the jury reached the conclusion that defendant was not guilty, it could not acquit and would be a hung jury, and “you stay there till you do arrive at a verdict, one way or the other, or are discharged by the court,” did not amount to a threat to compel a verdict;/the intention of the court to impartially state the law being manifest on consideration of the whole charge.</p> <p>15. Criminal iaw <&wkey;822(I) — Oral charge must be considered as whole.</p> <p>The portion of an oral charge to which an exception is reserved must be considered in connection with tbe whole charge.</p> <p>16. Criminal law 1056 (I) — Parts of charge not excepted to not considered on appeal.</p> <p>Parts of an oral charge to which no exception was reserved at the trial cannot be considered on appeal.</p> <p>other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Bill in equity by D. M. Graham and others against Peter H. Graham and others, for the sale of certain lands for division and for other purposes. From a decree denying the claim of respondents to a portion of the land, and directing its sale for division, respondents appeal.

B.1 Foster, Judge. Assumpsit by Gilmer Brothers Company, Incorporated, against the Wilder Mercantile Company. Transferred from the Court of Appeals under section 6 of the Act of 1911, p. 449. Judgment for the defendant, and plaintiff appeals. One J. B. Carver, representing the Gilmer Bros. Company, took an order from the Wilder Mercantile Company for 40 pieces Riverside plaids, two cases, 20 pieces each, Twin Cities zephyrs, and one case Silver Lake ginghams.

Martin, Judge. Bill by the American Bonding Company of Baltimore against the Fourth National Bank of Montgomery, seeking to hold it as trustee of certain funds and to require the same paid over. Erom a decree sustaining demurrers to the bill because void by the statute of limitations, complainant appeals.

A. Grayson, Judge. Will Lewis was convicted of murder in the first degree, and he appeals. The record contains nothing but preliminary orders of judgment, and the charges given and refused to the defendant.

K. McMorris, Judge. General De Bardelaben was convicted of murder, and appeals. Appellant was convicted of murder in the first degree, and his punishment fixed at life imprisonment. His defense was an alibi.

A. Pearce, Judge. Bill by J. A. Driver against Alto Burch and wife to reform a deed and a mortgage, and to foreclose. Decree for complainant, and respondents appeal.

Certiorari by JR. W. Patrick, as administrator, etc., to the Court of Appeals to review and revise the judgment and decision of the said court rendered in the case of R. W. Patrick, as administrator, against the W. B. Patterson Lumber Company and others, 89 South. 100.

Locke, Judge. Bill by D. F. Sugg against James B. Bur-gin and another to reform a contract and to enforce its performance. From a decree overruling demurrers to the bill, respondents appeal.

<p>Appeal from Circuit Court, Talladega County; A. P. Agee, Judge.</p> <p>Lewis Johnson was convicted of murder, and he appeals.</p>

I. Jones, Judge. Petition by Roy G. Rhodes, for mandamus to be directed to the Marengo County Bank,as county depositary for Marengo county, requiring it to pay a certain -warrant issued by the commissioners’ court'of said county, payable to one B. E. Whitcombe, and properly assigned to petitioner. Erom a decree denying the writ, petitioner appeals.

<p>1. Quieting title <St^l2(6) — Remainderman may maintain action. '</p> <p>A remainderman whose right to possession is supported until the termination of the outstanding life estate may maintain a bill, although out of possession, to remove a cloud and quiet title.</p> <p>2. Quieting title <§fco34(5) — Complaint held not bad as showing defendant widow had conveyed or abandoned homestead rights.</p> <p>In action by nephew against childless widow of deceased uncle, who left a homestead less in area than that allowed as exempt, bill averring that there was vested in the widow a life estate, and that complainant was entitled to the property on death of the widow, who attempted to convey the same in fee simple, held not inconsistent, in that it disclosed that widow had conveyed the homestead by warranty deed to the other respondents to the bill, and that by such alienation to third persons she had abandoned and lost homestead rights, although it did not specifically aver that the value at the time of his death did not exceed in amount that allowed, there being no specific demurrer to such point, and an allotment of the homestead not appearing to be condition precedent to the vesting- of a life estate in the widow under the circumstances.</p> <p>3. Quieting title <&wkey;30(2) — Person claiming interest in land held proper parties defendant.</p> <p>In action by a nephew to quiet title as to his right as remainderman to land left by deceased uncle, who was survived by childless widow, who had attempted to convey the homestead in fee simple, the widow and other defendants alleged to have claimed some interest in the land under the deeds and to have joined in the execution of a warranty deed with the widow purporting to convey a fee-simple title to-other defendants held proper parties defendant.</p> <p>cg^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Goldsby, Judge. Richard Davis, alias, was convicted of murder in the first degree, and sentenced to death, and appeals. No brief came to the Reporter.

<p>1, Evidence <§S=>508 — Expert surveyor properly permitted to testify as to location of true line.</p> <p>In a boundary dispute, an expert surveyor, who had the description of the line before him and had surveyed and located it, was properly permitted to testify as to where the true line ran.</p> <p>2, Evidence <&wkey;2l3 (I) — Defendant held not entitled to complain of exclusion of testimony concerning offers of compromise between witness and defendant.</p> <p>In a boundary dispute, defendant could not complain of the sustaining of objections to questions asked a witness as to offers of compromise and negotiation between him and defendant.</p> <p>3, Ejectment <&wkey;l 11 (10) — Omission of decimal point in describing land in verdict held properly corrected in judgment.</p> <p>The omission of the decimal point in setting forth in the verdict the width of the land involved in a boundary dispute was a clerical error which was properly corrected by the judgment where the verdict recited that it was for the land sued for and described in the complaint.</p> <p><Sn^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

C. B. Gwin, Judge. Bill by Hannah Cooper -and others against I T. H. Posey to redeem from mortgage foreclosure and to fix a trust upon certain lands. Decree for respondent, and complainants appeal. Complainants were the legal heirs of G. Lee Holmes, who was the owner of certain re'al estate, having acquired title thereto in the year 1878.

P. Almon, Judge. Suit in detinue by G. E. Scott against Alex Floyd for the recovery of one yearling. The cause was tried before the court without a jury, resulting in a judgment for the defendant, and plaintiff appeals: The plaintiff was the owner of the yearling, and had it out for pasturage on the property of the Sewanee Iron Company, about three-fourths of a mile from Russellville, Ala.

<p>1. Courts &wkey;>63 — Adjourned term of regular term, held at unauthorized time, illegal.</p> <p>Under Acts 1903, pp. 181, 182, providing that the regular term of a circuit court should begin on the ninth Monday after the fourth Monday in August, a regular term, beginning on the seventh Monday thereafter, was illegal, as was an adjourned term held the following month.</p> <p>2. Indictment and information &wkey;>7 — Indictment found at adjourned term of illegal regular term is nullity.</p> <p>An indictment, found at an adjourned term of court under a void order therefor, made at a regular term, held at a time not authorized by law, is a nullity.</p> <p>3. Statutes <&wkey;63 — Conviction at term of court held under unconstitutional act is null and void.</p> <p>Where a defendant was tried at a term of court held at a time fixed by Acts 1903, .p. 488, which act was declared unconstitutional, the conviction and sentence were null and void.</p> <p>4. Habeas corpus <@=»27 — Petitioner, convicted and sentenced at unauthorized term of court under indictment found at term held at unauthorized time, entitled to writ.</p> <p>One convicted and sentenced at a term of court held under an uneonstitutiónal act, under an indictment returned at an adjourned term of a regular term of court held at a time 'not authorized by law, should be discharged on writ of habeas corpus.</p> <p><§=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Evans, Judge. Action by W. G. Clark against tbe Birmingham Chero-Cola Bottling Company for damages for putting upon the market a drink in a bottle containing flies. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals, under section 6, Acts 1911, p. 449. Amended count 1 is as follows: First count.

Locke, Judge. Bill by S. C. N. Amason against I-I. M. Hartón and others to establish lien for attorney’s fees, and incidentally for discovery and other relief. Erom a decree for respondents, complainant appeals. The bill is sufficient, if it avers the insufficiency of visible assets subject to the legal process and the existence of assets hidden out. 131 Ala. 527, 32 South. 639; 200 Ala. 594, 76 South. 951.

C. Briekell, Judge. Bill by J. J. Cudd against T. P. Wood to reform a contract and to enforce a vendor’s lien, the vendee having failed to pay. Decree for respondent, and complainant appeals. The court erred in sustaining the grounds of demurrer, asserting that the scrivener’s mistake was inconsistent with the mutual mistake of the parties. 39 Cyc. 910, 911, 919, 920.

<p>1. Criminal law <&wkey;l I44( 19) — If clerk’s certificate skews appeal taken within time allowed, court will presume it was taken in proper manner.</p> <p>When a motion to strike from the docket is made after a case is submitted on its merits, and there is a certificate of the clerk in the record showing an appeal was taken within the time the law allows, the court will presume it was also taken in the manner the law directs, viz. by filing with the clerk within six months after sentence a written statement of appeal. Acts 1919, p. 85, § 7, Code 1907, § 2837.</p> <p>2. Homicide <&wkey;!58(2), 166(2), 192 — Declarations by defendant to deceased prior to killing held admissible.</p> <p>In a prosecution for murder, declarations by defendant to deceased two weeks prior thereto that he would work 40 years in the penitentiary and give $4,000 to get to kill him, accompanied by vile epithets, were admissible to show motive, hostility, malice, or criminal intent, and who was the aggressor.</p> <p>3. Criminal iaw tg=3390, 419, 420(1) — Evidence as to accused’s business with one whom he visited at the scene of the crime inadmissible.</p> <p>In a prosecution for murder, it was not error to refuse to allow defendant and his wife, after he testified that he went to the scene of the homicide to see some one other than deceased, to testify as to his business witli such person; same being immaterial and calling for motives, intention, or purpose that were uncommunieated, and the wife’s testimony was hearsay.</p> <p><@^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>4. Homicide <&wkey;166(l) — Any fact tending to prove real motive for killing relevant.</p> <p>Any fact which tends to prove what was the real motive of the prisoner for killing deceased is relevant evidence.</p> <p>5. Criminal law &wkey;342 — Always permissible to show influence operating on accused to lead or tempt him to commit offense.</p> <p>It is permissible in every criminal case to show that there was an influence and inducement operating on the accused which may have led or tempted him to commit' the offense.</p> <p>6. Criminal law <&wkey;22 — Motive or inducement must be either extenuation or aggravation of act.</p> <p>The motive or inducement to an act must be either an extenuation or aggravation of it.</p> <p>7. Criminal law &wkey;>429(2) — Homicide <@=>166 (5) — Affidavit by deceased against defendant and warrant of arrest issued thereon admissible to show motive.</p> <p>In a prosecution for murder, where defendant testified that deceased had sworn out a peace warrant against him, the affidavit made by deceased and the warrant of arrest issued thereon, showing defendant’s arrest under it, were material, they showing facts from which the' jury could find a motive for the crime.</p> <p>8. Homicide <&wkey;>300(3) — instruction relieving defendant from duty to retreat before firing in self-defense erroneous.</p> <p>An instruction that, if defendant fired at deceased under such circumstances as to lead a reasonable man to believe he was in danger of losing his life or suffering grievous bodily harm and was free from fault in bringing on the difficulty, he was under no duty to retreat before striking or firing in his own defense, was properly refused as relieving him from the duty to retreat, which is a necessary element in the doctrine of self-defense.</p> <p>9. Homicide <&wkey;300(l5)— No right to fire in seif-defsnse unless free from fault in bringing on difficulty.</p> <p>An instruction to find defendant not guilty of murder if, when he fired at deceased, the latter was attempting to strike him, and the circumstances were such as to impress him with the belief that he was in danger of death or grievous bodily harm, and there was no reasonable way of retreat without increasing his danger, was properly refused as ignoring the element of freedom from fault in bringing on the difficulty by word or act, in the doctrine of self-defense.</p> <p>10. Criminal law <&wkey;829(5) — No error in refusing charges on self-defense covered by charges given.</p> <p>Under Acts 1915, p. 815, amending Code 1907, § 5364, there was no error in refusing requested charges on self-defense where the court gave charges clearly defining the three elements o'f self-defense.</p> <p><&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

L. Sowell, Judge. Bill by the Cordova Coal & Mining Company against the Dora Fiiel Company and the American Trust & Savings Bank, as trustee, to quiet title to certain minerals and lands. From a judgment overruling demurrers to the bill, respondents appeal. The following is the hill of complaint: (1) The complainant is a corporation organized and existing under the laws of the state of Alabama, with its principal place of business in Walker county, Alabama.

AV. Harralson, Judge. Bill by C. E. Dunn and another against AV. B. W. Dee to establish a disputed boundary line. Decree for complainants, and defendant appeals. Bill by appellees against appellant, to have ascertained and established a boundary line between the parties.

<p>1. Appeal and error <@=jI078(I) — Assignments of error, not discussed or argued, treated as waived.</p> <p>Assignments of error, not discussed and argued in appellant’s brief, will be considered as waived on appeal.</p> <p>2. Pleading &wkey;>2l2 — Demurrers abandoned, when not refiled to amended counts of complaint.</p> <p>The failure to interpose to an amended complaint demurrers filed to the original complaint was an abandonment of them.</p> <p>3. Master and servant &wkey;>l90(l8) — Injury by starting of truck, which superintendent had left in gear instead of neutral, held actionable'.</p> <p>Evidence that it was the custom and duty of the general manager and superintendent of a garage and transfer business to see that trucks were left in neutral, and not in gear, but that he left a truck in gear, and that an employe, whose duty it was to crank the truck, was injured by the starting of the truck, and that he looked before cranking it to see if it was in neutral or in gear, but that it was dark, and it appeared to be in neutral, that he had very little experience, and that an expert could not always tell by looking, if believed, made a cause of action against the employer for the injuries.</p> <p>4. Trial 143 — General affirmative charge properly refused, when evidence conflicting on material issues.</p> <p>Under conflicting testimony on material matters; the court properly refused general affirmative charges.</p> <p><@cs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

P. Agee, Judge. Bill by Z.jy. McCord against J. TJ. Bridges and another, in the nature of specific performance to enjoin the cutting of timber and other relief. From decree for respondents, complainant appeals.

<p>1. Divorce <&wkey;>l84( IO)-¿FinE!¡ng of court accorded weight of verdict of jury.</p> <p>Findings of trial court in a divorce case on evidence taken partly by a commissioner and partly ore tenus before the court are to be accorded by the Supreme Court on appeal an authority equal to that of a verdict of a jury, notwithstanding the Legislature has attempted to provide that findings of fact by the court shall be reviewed by the Supreme Court without any presumption in their favor.</p> <p>2. Divorce <&wkey;!29(l6) — Adultery held not sufficiently shown.</p> <p>In a prosecution for divorce, adultery of wife held not sufficiently shown.</p> <p><&wkey;Jj'0r other eases see same topic and KEY-NUMBER, in all Key-Numbéred Digests and Indexes</p>

<p>Appeal from Circuit Court, Walker County; J. J. Curtis, Judge. Action by J. L. King against the Corona Coal Company. Judgment for plaintiff!, and defendant appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.</p>

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

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

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

C. Brickell, Judge. Petition by the State, on the relation of its Solicitor, against Guy King and another, to condemn an automobile, because used in the illegal transportation of liquor. From a decree of condemnation, respondents appeal. Counsel discuss the facts in the case, but without citation of authority. No brief came to the Reporter.

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