Volume 206 — Alabama Reports

<p>1. Pleading >&wkey;>6 — Plaintiff need not aver ordinance judicially noticed. '</p> <p>Under Gen. Acts 1915, p. 297, § 7, requiring courts to take judicial knowledge of ordinances of cities of 100.000 or more inhabitants, it is not necessary for plaintiff, averring injury by defendant operating automobile in violation of City Code of Birmingham, to allege that the ordinance was in force at the time plaintiff received her injuries.</p> <p>2. Municipal corporations &wkey;o706( I) — Allegation that defendant’s vehicle when it struck plaintiff or “immediately” prior thereto was operated in violation of ordinance held sufficient.</p> <p>An allegation that defendant’s automobile at the time it struck plaintiff “or just immediately prior thereto” was being operated along a public street in violation of an ordinance, in that it traveled at excessive speed, when construed with the balance of the complaint, manifestly means a very few seconds before the moment of the collision as against the objection that the word “immediately” was relative, and designated no exact portion of time.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Immediately.)</p> <p>3. Appeal and error &wkey;l040(7) — Sustaining demurrer to pleas harmless, where covered by other pleas remaining.</p> <p>Sustaining demurrer to some of defendant's pleas was immaterial, where he received benefit of matter sought to be set up in such pleas by a remaining plea, demurrer to which was overruled.</p> <p>4. Master and servant &wkey;>332(2) — -Automobile truck driver’s “scope of employment” held question for jury.</p> <p>Where defendant’s automobile truck driver, scut on an errand of three blocks, attended to the errand and then went several blocks to his mother’s home to carry goods to her, and on returning when near his employer’s place, and not during his deviation from the course required by his errand, struck and injured plaintiff, it was a jury question as to whether he was within the scope of his employment; that being a term not susceptible of accurate definition, but one to be gathered from surrounding circumstances.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Scope of Employment.)</p> <p>5. Trial <®=?i27 — Counsel’s reference to defendant’s insurance held error.</p> <p>Where it was defendant’s contention that he was not liable for his driver’s injury to plaintiff because the driver was deviating from his line of employment, argument of plaintiff’s counsel that defendant would have scorned such an idea had it been the truck that was injured and he had been trying to collect from the insurance company, and referring on objection to the fact that one T. was in the insurance business and went with defendant to the hospital to see plaintiff, was error, and was not excused as beipg used by way of illustration only.</p>

Wilkinson, Judge. Action by J. E. Williams against the National Pyrites & Copper Company, for damages for personal injury. Judgment for the plaintiff. Application for new trial was made, and, pending its hearing, the judge vrho presided at the original trial died, and the motion was heard by his successor in office, and denied, and the defendant appeals.

R. E. Kendrick was convicted of an offense. Conviction reversed by the Court of Appeals (89 South. 395); and the State, on relation of the Attorney General, petitions for certiorari.

Grayson, Judge. Bill by the Mobile Towing & Wrecking Company against Harry T. Hartwell to determine right of property of complainant in certain corporate stocks, and to foreclose a lien on certain other corporate stocks in favor of complainant and against respondent. From a decree denying relief, complainant appeals.

<p>Petition by John Eubank for mandamus directing the Hon. Hugh A. Locke, as one of the Judges of the Tenth Judicial Circuit, to correct an order or decree issued in the case of John Eubank against Myrtis Eubank.</p> <p>Mandamus was the proper remedy. 144 Ala. 414, 39 South. 237; 203 Ala. 204, 82 South. 454. The complainant had a right to proceed with his suit, and the decree staying the same was error. 53 S. E. 630; 201 Ala. 520, 78 South. 874 ; 93 U. S. 274, 23 L. Ed. 914;- 167 ü. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215.</p> <p>Mandamus was not the proper remedy. 52 Ala. 87, 23 Am. Rep. 559; 52 Ala. 98; 5S Ala. 536; 21 Ala. 772; 162 Ala. 2Y2, 50 South. 219; 181 Ala. 642, 62 South. 69. The court had a right to stay proceedings until the order for alimony and counsel fees had been complied with. 85 Wash. 607, 148 Pac. 882, L. R. A. 1915E, 567, and cases there cited in note; 8 Port. 276; 16 Ala. App. 297, 77 South. 447; 140 Ala. 262, 37 South. 96, 103 Am. St. Rep. 30; 6 R. C. L. 526; 85 Wash. 607, 148 Pac. 882, L. R. A. 1915E, 567.</p>

Action by M. C. Vaughn against Maggie Smith. A judgment for plaintiff was affirmed by the Court of Appeals (89 South. 302), and defendant petitions for certiorari.

William E. Stewart was convicted of murder in the second degree, but bis conviction was reversed by the Court of Appeals (89 South. 391), and the State, on relation of its Attorney General, petitions for certiorari.

<p>1. Wills <§=259 — Party interested must file contest before examination of witnesses to prove will; “probate of a will.”</p> <p>Under Code 1907, § 6196, providing that a will, before probate thereof, may he contested by any person interested therein or by any person who, if the testator had died' intestate, would have been an heir or distributee of his estate, the contest must be filed before examination of the witnesses whose testimony would establish the will; as “probate of a will” is the proof before an oflicer authorized by law that the instrument offered to be proved or recorded is the last will and testament of the deceased person whose testamentary act it is alleged to be, and not the mere indorsement on the will of the certificate of probate.</p> <p>[Ed. Note. — For other definitions, see -.Words and Phrases, First and Second Series, Probate.]</p> <p>2. Wills <@=220 — Parties authorized to contest defined; “any person Interested.”</p> <p>Under Code 1907, § 6196, authorizing contest of a will by “any person interested there-! in,” the quoted phrase embraces any person who has an interest in the estate disposed of which would be conserved by defeating the probate of the will or jeopardized or impaired by its establishment.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Any.]</p> <p>3. Wills <@=264 — In contest all parties entitled must join the contest pending.</p> <p>Where one person files a contest of a will, others so entitled must become contestants, if at all, by becoming parties to the contest pending, since the issue is in rem and must be single and complete as to all the parties.</p> <p>4. Wills <@=359 — Appeal from decision in will contest cannot be prosecuted by a person not a party tc the contest.</p> <p>On appeal persons not parties to the proceeding to contest a will in the probate court are not concerned, and the appeal cannot be prosecuted by any person in interest not a party to the record.</p> <p>5. Wills <@=392 — Appeal in will contest is a continuation of the original case, and is conclusive of merits.</p> <p>In a will contest the appellate proceeding is a continuation of the original, leading to a judgment on the merits, which is conclusive of the issue, and a. cause cannot be remanded to let in additional evidence, and under the mandate of the appellate court directing probate nothing remains for the probate court to do except to enter a formal certificate of probate.</p> <p>6. Wills <@=230 — Failure to contest a will in probate court before appeal leaves only remedy in chancery court.</p> <p>Where a person interested in an estate failed to join a will contest in the probate court, after appeal from that court, his only remedy was to contest in the chancery court under Code 1907, § 6207.</p> <p>7. Wilis <@=220 — May be- contested by any person acquiring interest in estate prior to probate of the will.</p> <p>Any person who has acquired an interest in the estate by purchase or descent from an heir or distributee which would be injuriously affected by the establishment of the will may contest it in the probate court, if the interest was acquired prior to the probate of the will.</p> <p>8. Wills <@=229 — Right to contest in chancery held extension of right to contest In probate court.</p> <p>Under Code 1907, § 6207, providing that any person interested in a will who has not contested it under preceding sections may contest the validity of it by a bill in chancery, the right to contest in chancery is only an extension of the right to contest in probate court, and one who was never authorized to become a contestant in the probate court because acquiring his interest by descent pending an appeal in the contest of another party cannot contest in chancery.</p>

C. B. Gwin, Judge. Action by Leo Jones and others against the County of Jefferson. Judgment for plaintiffs. From grant of new trial plaintiffs appeal, and defendant by way of cross-appeal assigns as error rulings on original trial.

Action by Will Alford and others against the Woodmen of the World on beneficial insurance certificate. Judgment for plaintiffs, and defendant appeals.

Action by Luella Abernathy against the National Life Insurance Company of the United States for damages for libel and slander. Judgment for the plaintiff, and the defendant appeals. The cause was submitted to the jury upon amended counts 2 and 6A, which are as follows: Count 2.

Kyle, Judge. Action by Eddie Heidtmueller, as administrator of tbe estate of Theodore Heidtmueller, against the ’ Louisville & Nashville Railroad Company, for damages for the death of his intestate. Judgment for the plaintiff, and defendant appeals.

<p>Certiorari to Court of Appeals.</p> <p>Action by Ruth Cowan against H. D. Pruitt. A judgment of the circuit court for defendant after sustaining demurrers to the complaint was affirmed by the Court of Appeals, and plaintiff petitions for certiorari.</p> <p>The counts referred to in the opinion are as follows:</p> <p>(4) The plaintiff claims of the defendant the further sum of $400, for that, upon, to wit, January 23, 1917, the defendant agreed with the Mobile Tribune Company, Incorporated, to sell, on credit, to the said Mobile Tribune Company, Incorporated, one Hallett & Davis piano valued at $400, to be delivered to the order of the Mobile Tribune Company, Incorporated; that in consideration of the work and labor performed by the plaintiff at the request of the Mobile Tribune Company, Incorporated, the Mobile Tribune Company, Incorporated, delivered to the plaintiff an order on the defendant for one Hallett & Davis piano, valued at $400; that the plaintiff, by her agent, E. J. Cowan, presented the said order to the defendant, and requested the defendant to deliver said piano in accordance with the said order; and that the defendant has wholly failed and refused to deliver said piano — all to the plaintiff’s damage as aforesaid.</p> <p>(5) The plaintiff claims of the defendant the further sum of $400, for that, upon, to wit, January 21, 1917, the defendant agreed with the Mobile Tribune Company, Incorporated, to sell to the said Mobile Tribune Company, Incorporated, one Hallett & Davis piano valued at $400, to be delivered to the order of the Mobile Tribune Company, incorporated; that in consideration of work and labor performed by the plaintiff at the request of the Mobile Tribune Company, Incorporated, the Mobile Tribune Company, Incorporated, delivered to the plaintiff an order on defendant for one Hallett & Davis piano valued at $400; that the plaintiff by her agent presented said order to the defendant; that when said order was presented as aforesaid the defendant then and there stated that the said order was good, and agreed with the plaintiff that upon her request he would deliver to her a piano in accordance with said order; that neither the plaintiff nor her agent had any knowledge of the arrangements betw.een the Mobile Tribune Company, Incorporated, and this defendant, and the plaintiff relied upon the statement of the defendant as aforesaid; that thereafter the plaintiff requested the defendant to deliver to her a piano in accordance with said order, but that the defendant has wholly failed or refused to do so, and then and there stated that the Mobile .Tribune Company, Incorporated, had not paid for said piano; that this was the first knowledge or notice on the part of the plaintiff that said piano had not been paid for; and that the Mobile Tribune Company, Incorporated,' was then and there insolvent — all to the plaintiff’s damage as aforesaid.</p> <p>(6) The plaintiff claims of the defendant the further sum of $400, for the defendant, upon, to wit, January 23, 1917, agreed with the Mobile Tribune Company, Incorporated, to sell to the Mobile Tribune Company, Incorporated, one Hallett & Davis piano valued at $400, to be delivered by the defendant to the winner of the ■ Mobile Tribune Company $5,000 contest of 1917; that the plaintiff was the winner of said contest, and received from the Mobile Tribune Company, Incorporated, an order on the defendant, authorizing him to deliver to the plaintiff one Hallett & Davis, piano valued at $400 in accordance with the said agreement with the Mobile Tribune Company, Incorporated; that said order was presented to the defendant by E. J. Cowan, the agent of plaintiff; that when the said order was presented as aforesaid the defendant then and there stated that the order was good, and agreed to deliver the piano to the plaintiff in accordance with said order; that the plaintiff had no knowledge or notice of the agreement between the defendant and the Mobile Tribune Company, Incorporated, and relied upon the statement of the defendant as aforesaid; that thereafter, upon the expiration of a long period of time, to wit, 30 days, the plaintiff requested the defendant to deliver to her a piano in accordance with said order; that the defendant has wholly failed or refused to deliver the piano as aforesaid; that the Mobile Tribune Company, incorporated, was at the time of said refusal insolvent — all to the plaintiff’s damage as aforesaid.</p> <p>(7) The plaintiff claims of the defendant the further sum of $400, for that, upon, to wit, January 23, 1917, the defendant agreed with the Mobile Tribune Company, Incorporated, to deliver two Hallett & Davis pianos, each valued at $400, one to each of two winners of the Mobile Tribune $5,000 popularity contest of 1917, in consideration of $400 worth of advertising to be furnished by the Mobile Tribune Company, Incorporated, to said defendant and $400 in money to be paid by said Mobile Tribune Company, Incorporated, to the defendant; that the defendant substantially received the said $400 worth of advertising long prior to the filing of this suit; that the plaintiff, at the request of the Mobile Tribune Company, Incorporated, performed work and labor for the Mobile Tribune Company, Incorporated, in said $5,000 popularity contest, and in consideration of which was declared to be one of the said prize winners in the said contest, and was given an order by the Mobile Tribune Company, Incorporated, on the defendant for one Hallett & Davis piano valued at $400; that the plaintiff by her agent, E. J. Cowan, presented said order to the defendant; that when said order was presented, as aforesaid, the defendant then and there stated that the order was good, and offered to deliver said piano in accordance with said order; that neither the plaintiff nor her agent had any knowledge of the arrangements between the Mobile Tribune Company, Incorporated, and the defendant, that the plaintiff-relied upon said statement of the defendant, and, having no use for said piano, arranged \with the defendant that she should not require a delivery of said piano until she had a sale therefor; and that the defendant agreed that when requested by the plaintiff so to do he would deliver to the plaintiff or her order a piano in accordance with said order given to the plaintiff by the Mobile Tribune Company, Incorporated; that the Mobile Company, Incorporated, was then and there a going concern; and that, upon, to wit, two months thereafter, and prior to the filing of this suit, the plaintiff requested the defendant to deliver a piano in accordance with said order; that the defendant then and there refused to deliver said piano, on the grounds that the Mobile Tribune Company, Incorporated, had not paid therefor; that this was the first knowledge or notice on the part of the plaintiff that said I>iano had not been paid for; that the Mobile Tribune Company, Incorporated, was then and there insolvent, and had ceased to be a going concern; all to the damage of the plaintiff as aforesaid.</p> <p>(8) The plaintiff claims of thg defendant the further sum of $400, for that the defendant upon, to wit, January 23, 1917, agreed with the Mobile Tribune Company, Incorporated, to deliver two Hallett & Davis pianos, valued at $400 apiece, one to each of two winners of the Mobile Tribune $5,000 popularity contest of 1917, for which the Mobile Tribune Company, Incorporated, agreed to give to the defendant $600 of advertising matter and $200 in money; that the defendant substantially received the $600 worth of advertising from the Mobile Tribune Company, Incorporated; that the plaintiff performed work and labor for said Mobile Tribune Company, Incorporated, at its request, in said $5,000 popularity contest, and was thereby declared one of the winners of said contest, and received from the Mobile Tribune Company, Incorporated, an order on the defendant, authorizing him to deliver to the plaintiff one Hallett & Davis piano valued at $400, in accordance with said agreement with the Mobile Tribune Company, Incorporated; that said order was presented to the defendant by E. J. Cowan, agent of the plaintiff; that when said order was presented, as aforesaid, the defendant then and there stated that said order was good, and that thereafter and prior to the filing of this suit the plaintiff requested the defendant to deliver to her a piano in accordance with said order; that the defendant has wholly failed to deliver said piano; all to the plaintiff’s damage as aforesaid.</p> <p>Demurrers were interposed to the fifth and sixth counts as follows:</p> <p>It does not show that the Mobile Tribune Company, Incorporated, had paid the defendant for the piano; does not show any valid contract existing between the Mobile Tribune Company, Incorporated, and the defendant, whereby the defendant was obligated to deliver the piano on the order of the Mobile Tribune Company.</p> <p>In the seventh and eighth counts the same grounds of demurrer are assigned as to the fifth and sixth counts, with the additional grounds that said counts do not show any cause of action, as they show no damages for breach of contract, nor do they show any claim for the piano itself, nor do they show any cause of action growing out of conversion or other causes.</p> <p>The beneficiary may maintain a suit in his own name against the promisor for the breach of a valid contract between two parties for his benefit. 14 Ala. 263; 54 Ala. 246 ; 65 Ala. 190. This is true, even if the beneficiary is undetermined when the contract is made. 1 Williston on Contracts, 378. The appellee by his conduct is estopped to deny that the Tribune 'Company had failed to perform its contract at the time appellant presented the order to appellee. Bigelow on Estoppel, 603 ; 43 Ala. 561; 21 Ala. 534; 151 Ala. 249, 44 South. 203; 17 Ala. App. 235, 84 South. 430; 16 Ala. App. 677, 81 South. 197; 201 Ala. 300, 78 South. 77. By telling appellant that the order was good, appellee waived any right to insist, upon payment before delivery. 82 Ala. 233, 2 South. 302; 50 Barb. (N. X.) 258.</p> <p>Each count shows that the promise to deliver the piano was without consideration. 18 Ala. 117; 124 Ala. 536, 26 South. 981; 2 May, 677. No offer was made by plaintiff to pay defendant any sum that the Tribune Company might owe on piano. 61 Ala. 155; 88 Ala. 367, 6 South. 834; 86 Ala. 348, 5 South.' 679, 11 Am. St. Rep. 41. There was no element of estoppel in the case. 95 Ala. 279, 10 South. 757 ; 87 Ala. 385, 6 South. 298; 13 C. J. 315. The order was not negotiable, and, if it was, the acceptance must have been in writing to be binding. Acts 1909, p. 147, § 132.</p>

Judge. Bill by Samuel Zimmern against the Mobile & Ohio Kailroad Company to enjoin it from confiscating coal consigned to complainant over respondent’s road. Prom a decree refusing to dissolve the temporary injunction,'the respondent appeals.

C. R. Gwin, Judge. Action by Virgie Allen against the Sovereign Camp of the Woodmen of the World upon a beneficiary life certificate payable to her and issued to Eugene Allen. Judgment for plaintiff, and defendant appeals. Brief was misplaced and did not reach the Reporter. There was a waiver of any forfeiture. 201 Ala. 687, 79 South. 259; 128 Ala. 242, 29 South. 646; 157 Ala. 553, 47 South. 735.

<p>Appeal from Circuit Court, Morgan County; O. Kyle, Judge.</p> <p>Action by John Almon against the Royal Exchange Assurance of London, England, on a fire insurance policy. Judgment for plaintiff, and defendant appeals.</p> <p>The complaint was in the form prescribed by the Code. Pleas 1 and 2 were the general issue. Pleas 3 and 4 were non est factum. Plea 5 set up the conditions that the entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the interest of the insured be other than unconditional and sole ownership; that the agreement alluded to was not indorsed upon said policy of insurance or added thereto, and that the interest of the insured, the plaintiff, in and to the property insured, was at the time of the issuance of the policy other than unconditional and sole ownership. Plea 6 sets up the same provision, and alleges that the property insured was at the time of the issuance of said policy in part a building on the ground not owned by the insured in fee simple, and the other property burned was situated in this building, and also set up that the agreement referred to was never entered into or indorsed or written on policy. Plea 7 is the same with reference to the barn that was burned alleging that the same was insured separately and divisibly. Plea 8 is practically the same as plea 7. Plea 9 sets up the provisions of policy that if fire occur insured shall within 60 days after the fire, unless such time is extended in writing by the company, signed and sworn to by said insured, stating, etc., and a copy of all the descriptions and schedules of all policies, and defendant avers that plaintiff had not furnished such statement, together with a copy of all the descriptions and schedules in all policies, and the time had not been extended in writing by this defendant so to do. Plea 10 sets up as a part and policy of the insurance the following conditions: “The entire policy shall be void if the interest of the insured in the property be not truly stated”— and avers that the policy contains this statement, that the insured owned, the property covered by the policy of insurance, and that the fact is that, when the policy was issued and the fire occurred, the insured was not the owner of the property. Plea 12:</p> <p>In so far as the complainant seeks to recover judgment of the value of his barn, defendant says said barn was insured separately, and the contract for insurance was divisible, and the defendant avers that plaintiff at the time of the issuance of the policy and at the time of the fire did not own nor did he have an insurable interest in said barn, and all the property rights therein were in another person, who was not a party to the contract of insurance.</p> <p>The replications sufficiently appear from the opinion.</p> <p>For former appeal, see 202 Ala. 374, 80 South. 456. Plea 9 was good. 142 Ala. 650, 39 South. 204. It is against public policy to permit the issuance of policies of insurance to persons having no insurable interest. 72 U. S. (5 Wall.) 509, 18 L. Ed. 524; 46 Ala. 14, 7 Am. Rep. 581; 76 Ala. 183, 52 Am. Rep. 316. The bond was the separate property of the wife. Section 209, Const. 1901; chapter 95, Code 1907 ; 38 Mich. 548, 31 Am. Rep. 326; 81 Me. 373, 17 Atl. 303; 2 Ind. T. 625; 53 S. W. 442; 12 S. W. 498. When the plaintiff accepted the contract as written, it became the sole and only contract between him and the company. Wyatt had no authority to waive these conditions. 134 N. Y; 197, 32 N. E. 31. Plaintiff was not entitled to recover the penalty. 203 Ala. 551, 84 South. 763. Insurance agents had no authority to issue the policy in that community. 130 Ala. 232, 30 South. 614, 55 L. R. A. 547; 89 Am. St. Rep. 30. The defendant was entitled to the affirmative charge. 202 Ala. . 374, 86 South. 456; 84 Neb. 482, 121 N. W. 447, 23 L. R. A. (N. S.) 310.</p> <p>Wyatt & Sons were general agents. 186 Ala. 420. 65 South. 143. Their action in writing the insurance was binding on the defendant. 14 Ala. App. 527, 71 South. 615; 186 Ala. 420, 65 South. 145. The ninth plea was indefinite and uncertain. 124 Ala. 681, 26 South. 252. The insured had an insurable interest. 81 Ala. 320, 8 South. 222, 60 Am. Rep. 162; 77 Wis. 4, 45 N. W. 945, 8 L. R. A. 806; 152 Wis. 637, 140 N. W. 321, 45 L. R. A. (N. S.) 1131, Ann. Cas. 1914C, 609; 55 Ala. 613, 7 South. 379. Wyatt & Sons had authority to waive the stipulations of the policy. 157 Ala. 553, 47 South. 735; 200 Ala. 681, 77 South. 159. The company was subject to the penalty. Acts 1911, p. 317, amending sections 4594, 4595, Code 1907. 203 Ala. 551, 84 South. 765; 204 Ala. 517, 56 South. 379. There was no occasion for the affirmative charge.</p>

Wilkinson, Judge. Action by Elvins Eastis against the Sovereign Camp of the Woodmen of the World, under beneficiary life certificate. Judgment for plaintiff, and defendant appeals. Counsel discuss count A, with the insistence that it was subject to the demurrers, but cite no authority. The defendant was entitled to the affirmative charge. 112 Ya. 678, 72 S. E. 704, 38 L. R. A. (N. S.) 571; 188 111. App. 490; 43 Colo. 489, 96 Pac. 560, 24 L. R. A. (N. S.) 91, 127 Am.

Action by F. G. Alexander against the Fisher Flour Milling Company, with garnishment in aid of suit to the Birmingham Trust & Savings Company. From a judgment discharging the garnishee, the plaintiff appeals. The following is the certificate of deposit: Deposited in the First National Bank, Subject to Conditions Below, by Fisher Flouring Mills Co. Seattle, Wash., March 15, 1917.

Martin, Judge. Ejectment by Josie Johnson, as administratrix of the estate of Tillman S. Boyd, deceased, against John F. Sandlin. Judgment for the defendant, and plaintiff appeals. The administrator was entitled to recover. Section 2618 et seq., Code 1907; 67 Ala. 173; 71 Ala. 594; 73 Ala. 222; 97 Ala. 560, 11 South. 841; 127 Ala. 309, 27 South. 784.

Petition by L. A. Taunton for certiorari to the Court of Appeals to review and revise the judgment of said court, rendered on the apipeal of Tallassee Falls Manufacturing Company v. L. A. Taunton (89 South. 87).

J. Garrison, Judge. Sallie Garner was convicted of murder and she appeals. The pleas in abatement and motion to quash venire should have been sustained. 204 Ala. 232, 85 South. 698; 178 Ala. 412, 59 South. 594. The jury was not properly sworn and should have been discharged. Acts 1909, p. 319; 122 Miss. 19, 84 South. 161; 80 Tex. Cr. R. 588, 192 S. W. 770, L. R. A. 1917D, 391; 128 Ala. 6, 29 South. 614.

P. Alrnon, Judge. Ejectment by Edna L. Pruitt against AYalter W. Hamilton, and upon bis death revived against bis heirs. Judgment for plaintiff, and defendant appeals.

Petition by Bob Lang for certiorari to the Court of Appeals to review and revise a judgment of. such court rendered in the appeal of petitioner in a criminal prosecution (89 South. 164).

Petition by Robert J. Lancaster -for writ of prohibition to be directed to Judges T. L. Sowell and J. J. Curtis to restrain them as such circuit judges of the circuit court’ of Walker county from putting him on trial in said county on an indictment charging murder in the first degree, a similar indictment having been previously returned and the canse transferred from Walker county to Marion county, Ala.

<p>Certiorari to Court of Appeals.</p> <p>The John E. Byers Machine Company petitions for certiorari to review and revise the judgment of the Court of Appeals. 89 South. 88.</p>

<p>Appeal from Circuit Court, Monroe County; John D. Léigh, Judge.</p> <p>Bill by L. L. Hendrix, as a citizen and taxpayer of the county, to restrain M. M. Fountain, Judge of Probate, and Board of Revenue of Monroe county from issuing certain interest-bearing county warrants. Prom a decree dismissing the bill, complainant appeals.</p> <p>Appellant, a taxpayer of Monroe county, filed this bill against appellees as members of the board of revenue of said county, seeking an injunction against the issuance and sale of $75,000 of interest-bearing warrants in settlement of an indebtedness previously incurred, as provided by Acts Sp. Sess. 1920, p. 10. The order of. the board of revenue entered upon the minutes is attached as Exhibit A to the bill, and is as follows:</p> <p>Board of Revenue of Monroe County.</p> <p>Regular Meeting March 8, 1921.</p> <p>Whereas, it is made to appear to the hoard of revenue of Monroe county, that there are a large number of outstanding noninterest-bearing warrants of the county chargeable to or against the general fund of the county, for the payment of which there are no funds in the county treasury at the present time, said warrants evidencing an indebtedness of the county approximating seventy-five thousand dollars incurred in the construction and maintenance of public roads or. other necessary expenses of the county, or for money borrowed for tick eradication; and</p> <p>Whereas, it is further made to appear to the said board of revenue from the records of the board and those of the county treasurer that there are no outstanding interest-bearing warrants of the county heretofore issued for which there is no special and ample funds provided or created for their payment, all of such interest-bearing warrants heretofore issued being especially provided for by special funds for their payment as said warrants shall mature, both principal and interest; and</p> <p>Whereas, it appears to the board advisable, expedient, and desirable for this board'to issue and sell interest-bearing warrants of the coun,ty for the purpose of securing funds for the payment of the debts and obligations evidenced by said noninterest-bearing warrants, as is provided for by acts of the special session of the Legislature of Alabama, approved September 28, 1920; and</p> <p>Whereas, it appears to the board of revenue of said county that the total revenues of the county for the year 1920, exclusive of school funds, and funds especially provided and set apart for the payment of all outstanding interest-bearing warrants of the county heretofore issued, amounted to $35,342.49, the total amount of such revenues for the county for said year being $100,699.02; and</p> <p>A¥hereas, it is made to appear to the board of revenue from the records of said board, and those, of the county treasurer, that the warrants herein authorized to be’ issued, together with the interest thereon, do not exceed forty per centum of the estimated revenues of the county dui’ing the tax year said warrants are payable, and do not exceed forty per centum of the revenue of the county for the preceding year, exclusive, of the special fxinds created and provided for the payment of all outstanding interest-bearing warrants, and also exclusive of the special fund provided for school purposes:</p> <p>Therefore, in conformity with the provisions of said act. this board now declares its intention to issue such interest-bearing warrants in the sum of seventy-five thousand dollars ($75,000.00) for the purposes herein set out and above set forth. Said warrants shall bear interest at the x-ate of eight per cent. (8) per annum, interest payable annually, and the principal and interest of said warrants shall be made payable in the amount and at the time set; out below in the table incorporated in this order, that is to say:</p> <p>Table Showing Amount of Interest-Bearing Warrants to be Issued Under This Order, and the Date When Said Warrants Shall Mature.</p> <p>Date Payable. Amt. of Prin. Int.</p> <p>May 1, 1922 ..........................none $6,000.00</p> <p>May 1, 1923 ..........................$ 2,000.00 6,000.00</p> <p>May 1, 1924 .......................... 5,000.00 5,840.00</p> <p>May 1, 1925 .......................... '6,000.00 5,440.00</p> <p>May 1, 1926 .......................... 7,000.00 4,960.00</p> <p>May 1, 1927 .......................... 9,000.00 4,400.00</p> <p>May 1, 1928 .......................... 10,000.00 3,680.00</p> <p>May 1, 1929 .......................... 11,000.00 2,880.00</p> <p>May 1, 1930 .......................... 12,000.00 2,000.00</p> <p>May 1, 1931 .......................... 13,000.00 1,040.00</p> <p>Total warrants ordered issued............$75,000.00</p> <p>It is further ordered by the said board that the following amounts be, and hereby are, set aside out of the general fund of the county to pay said interest bearing warrants, principal and interest as follows.</p> <p>For the year 1922 ..............................$ 6,000.00'</p> <p>For the year 1923 ............................. 8,000.00</p> <p>For the year 1924 .............................. 10,840.00</p> <p>For the year 1925 ............................. 11,440.00</p> <p>For the year 1926 ............................. 11,960.00</p> <p>For the year 1927 ............................. 13,400.00</p> <p>For the year 1928 ............................. 13,680.00</p> <p>For the year 1929 ............................. 13,880.00</p> <p>For the year 1930 ............................. 14,000.00</p> <p>For the year 1931 .............................. 14,040.00</p> <p>It is further ordered that the above sums of money hereby set aside for the payment of said warrants, principal and interest, is expressly chai-ged with a specific lien for tile payment of said sums of money; and the treasurer of the county is hereby ordered to set aside and segregate said specific sums of money out of said genei-al fund in each of said years above specified as directed in this order and in the aforementioned act of the Legislature and to hold the same for the payment of said warrants as directed in said act, which said act is hereby expressly referred ta and made a part hereof as if fully set out herein.</p> <p>It is further ordered by the board that the judge of probate of the county be, and he hereby is, duly authorized to issue said warrants for and in the name of the county, acting therein in all things as required and prescribed by the aforementioned act of the Legislature, an,d to that end he is empowered and directed to take such steps as may be neeessaiy, at the expense of the county, to procure the printing of said wax-rants, with interest coupons, and to proceed to sell the same not less than par, and at px-ivate sale, at his office in Monroeville. Alabama, on Wednesday June X, 1921, after advertising the time, place and terms of sale in the Monroe Journal for three successive weeks. The judge of probate in preparing said warrants for issuance shall in all things comply with section five of said act, and, as nearly as possible shall make said warrants of uniform amount and denomination, each warrant to be for as much as two hundred and fifty dollars ($250.00), or more, whenever possible to so arrange the same, in order that the expense and trouble of bookkeeping may be minimized.</p> <p>It is further ordered that the treasurer shall govern himself strictly by the provisions of section five of said act in respect to the registration, cancellation, etc., pf said warrants.</p> <p>The theory of the bill is that the issuance of these warrants is not authorized by the act, for that, in the event of their issuance, tlie aggregate amount of warrants outstanding and payable during any tax year will exceed 40 per cent, of the estimated revenues of the county during the preceding year, and during the tax year the warrants are made payable contrary to section 3 of the above-cited act.</p> <p>Paragraph 3 of the bill is as follows:</p> <p>Complainant shows unto your honor that there are now outstanding interest-bearing warrants of the county aggregating $191,282.93, of which $35,935.35 are past due and the remaining warrants are payable as follows, to wit:</p> <p>Date. Principal. Interest.</p> <p>April 1, 1921 ..............$16,101.50 $11,«6.97</p> <p>April 1, 1922 .............. 20.165.08 10,204.89</p> <p>April 1, 1923 .............. 24,421.95 8,856.49</p> <p>April 1, 1924 .............. 22,699.99 7,427.18</p> <p>April 1, 1925 .............. 26,119.66 5,612.13</p> <p>April 1, 1926 .............. 3f>, 156.56 4,288.15</p> <p>April 1, 1927 .............. 4,924.21 2,584.74</p> <p>April 1, 1928 .............. no warrants due 958.91</p> <p>April 1, 1929 .............. 15,748.63 958.91</p> <p>Complainant further shows unto your honor that the total revenues of the county of Monroe for the year 1920 amounted to $100,699.02 said total sum being composed of the following items:</p> <p>Three-mill school tax;........................$24,508,70</p> <p>One-mill school tax............................ 8,160.56</p> <p>Paid in by judge of probate................... 3,033.00</p> <p>Paid in by sheriff.............................. 2,971.00</p> <p>Paid in by circuit clerk...................... 745.00</p> <p>Special road and bridge fund.................. 32,678.27</p> <p>General fund................................... 28,593.49</p> <p>$100,699.02</p> <p>As will appear from the copy of the said order of said board hereto attached, said board of revenue has ordered the issuance of said warrants in the sum of seventy-five thousand dollars under the supposed authority of the Acts of the Legislature of Alabama, Special Session 1920, page 10. Complainant alleges that said act of the Legislature does not authorize and empower said board of revenue to issue warrants in the amounts and in the manner and form as contemplated by said order of said board, but, on the contrary, said proposed issuance of said warrants is illegal and without authority of law in that said act provides that the aggregate amount of warrants outstanding at the time and payable during any tax year shall not exceed forty per centum of the estimated revenues of the county during the tax year the warrants are payable, and shall not exceed forty per centum of the revenue of the year next preceding the date of issuance. That the interest-bearing warrants outstanding at tlie time said order was made and entered, together with the interest thereon, added to the warrants proposed to be issued in said order, including interest, thereon, and payable during said specified years, exceeds forty per" centum of the revenues of the county for the year 1920, and exceeds forty per centum of the estimated revenues of the county during the tax year the said warrants are made payable, after deducting from the total of said revenues the five-mill school tax amounting to $32,678.26 which should not be considered as revenue as the basis for the issuance of warrants under the act. That unless restrained by order of the court the said Board of Revenue, as shown by said exhibits, will through its president, issue and sell said warrants, although not legally authorized so to do, to the great and irreparable damage of this complainant and the other taxpayers of said county.</p> <p>Appropriate assignments of demurrer were interposed, to the bill, and answer also filed setting up a full compliance with the above-mentioned act, and that, in calculating the amount of warrants authorized to be issued by said act, the board of revenue is not required to consider interest-bearing warrants theretofore issued, for which a special fund has already been provided or created, and that all outstanding interest-hearing warrants, as set forth in the bill, have been theretofore specially provided for by the creation of a special fund ample and sufficient for the payment thereof — both principal and interest. The answer further sets up that in determining the amount of issuance of warrants under the act the total revenues of the county are 'to be considered, including the school fund, but that even should such school fund be not considered as a part of the revenue of the county for this purpose, and be eliminated from consideration, and also taking out of consideration those interest-bearing warrants, for which a special fund has been created as previously shown, that, In such event, the warrants now proposed to be issued, and payable as shown in the bill, will not exceed 40 per cent, of the remaining revenue, either for the year 1920 or the estimated revenue for the several years in which said warrants are made payable.</p> <p>There was an agreement in writing of counsel for respective parties filed in the cause, to the effect that the facts set forth in the hill and answer are correct, and that they set np all facts pertinent to the issues involved. It being agreed that the bill and answer set forth all the facts, each being incapable of further amendment, upon submission for final decree thereon, the court rendered a decree dismissing the bill, and this appeal is prosecuted therefrom.</p> <p>Complainant insists that the interpretation of the act as set out in the bill is correct.</p> <p>Counsel cites quite a number of authorities bearing on municipal and the like contracts, and their proper construction, with the insistence that the order made by the hoard of revenue of Monroe county is null and void for failure to follow in all respects the authorities cited.</p> <p>The trial court properly interpreted the act, and its decree should be- affirmed. 154 Ala. 279, 45 South. 89.7; Ex parte Lusk, 82 Ala. 519, 2 South. 140. The amicus curiae has gone out of his way to raise question not in the record. 2 O. J. 1323, 1325; 49 N. E. 797.</p>

M. Miller, Judge. Action by Andrew Hargrove against Walker D. Hines, as Director General of Railroads, with substitution of John Barton Payne as defendant, for damages for setting out fire through the operation of a locomotive. Judgment for the plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

<p>1. Injunction <&wkey;110 — Supreme justice could not grant injunction after hearing in circuit court.</p> <p>Where application for injunction was set down for hearing in circuit court, and complainant did not abandon the hearing and renew his application to a judge of the Supreme Court under Code 1907, § 4534, but engaged in the hearing, he has no right to apply to a judge of the Supreme Court for an injunction, and his remedy is by appeal under section 4531, and a judge of the Supreme Court had no authority to order the issuance of said injunction under sections 4519 and 4520; it appearing that the course pursued in circuit court was under section 4528.</p> <p>2. Injunction <&wkey;2IO — Order may be declared a nullity for benefit of parties.</p> <p>If an order made by supreme justice for an injunction was authorized under Code, § 4534, such justice would be without authority to cancel the same; and if it was unauthorized it is void and needs no cancellation, but, the matter being brought to such justice’s attention, there can be no harm in declaring the order a nullity for the benefit of the parties in interest, notwithstanding such an order may be unnecessary.</p>

Foster, Judge. Action by De Witt Crider, by next friend, against the Yolande Goal & Coke Company, for damages for personal injuries, having-been thrown from a truck operated by defendant. Judgment for defendant, and plaintiff appeals. Plaintiff was a passenger, and at least entitled to have that question submitted to the jury. 171 Ala. 300, 55 South. Ill; 194 Ala. 265, 69 South. 875, L. R. A. 1916E, 1190; 198 Ala. 658, 73'South. 956; 10 O. J. 873, 874;' 45 Conn. 284, 29 Am.

S. Thigpen, Special Judge. Bill by Fannie Jefferson against C. B. Sawyer for an accounting and cancellation of a mortgage. From a decree dismissing the bill, complainant appeals. Having repossessed himself of the picture show outfit, and having applied the payments made to the rent, the obligation was satisfied, and the mortgage ought to be canceled. 141 Ala. 378, 37 South. 737 ; 18 Cyc. 803; Miller on Conditional Sales, 62. Tberé was no bailment about it. 56 Ala. 166, 28 Am.

Appeal irom Circuit Court, Jefferson County; A. E. Gamble, Judge. A. W. Cochran appealed from the action of the Board of Revenue of Jefferson County in the fixing of valuation for taxing purposes of his property, and the appeal, on motion of the State, was dismissed, and he appeals. The appeal from the action of the hoard of revenue was taken when the bond was filed with the clerk, and was within the thirty days.

Ferguson, Judge. Action by Jim Freeman against Thomas Worthington. Judgment for defendant, and I>laintiff appeals. The plaintiff stated his case in several counts, the facts alleged in each being that he was employed by the defendant in his mine, and that a rock or other hard substance fell from tbe roof thereof, injuring him.

Locke, Judge. Bill by Riley Byars and others against Milcsy Spencer and others, to review and set aside a former decree, and to sell land for division. From a decree sustaining demurrers to the bill, complainants appeal. Consent of the court to the filing of this bill was not necessary to be procured. 200 Ala. 529, *76 South. 855; 186 Ala. 310, 65 South. 209.

I. Jones, Judge. Action by J. A. McConnell against J. S. Free for the penalty for the cutting of timber. Judgment for the defendant, and the plaintiff appeals. Free had no right to the timber on the' land not included in his contract. 146 La. 584, 83 South. 839; 86 South. 464. Free was liable for the acts of Ms agents, done under his instructions and in the course of their employment. 107 Ala. 640, 18 South. 266; 115 Ala. 277, 22 South. 439, 41 L. R. A. 650, 67 Am.

J. Garrison, Judge. Bill by Julia Gunn against J. L. Henson and wife to foreclose a mortgage. Decree for complainant and respondents appeal. Where the witness to the instrument has died, it must be proven by competent evidence. Sections 4004 and 4005, Code 1907. The burden was cast upon the complainant to prove ownership. 196 Ala. 645, 70 South. 1; section 3967, Code 1907.

Bolts?;* Judge. Report of commissioners appointed to set apart and allot to widow and minor children of decedent, W. C. Poster, the specific exemptions of personal property allowed by law, contested by C. C. Poster, as administrator of the decedent’s estate, and others. Prom an order and judgment disallowing the exemptions, Ellie Poster Blankenbeck and others appeal.

Bill by H. B. Allison against Michael Cody and others to redeem from a redemption from foreclosure. From a decree sustaining demurrers to the bill, complainant appeals.

Petition of C. J. Donald and J. N. Carmicheal, as sureties on a forthcoming bond of the Fairfield Tire Company, for writ of prohibition restraining the judge of the municipal court, the constable and the Cotton States Tire & Rubber Company from executing a fieri facias, on the grounds of want of jurisdiction in the court to render the judgment on which same is based. From a judgment denying the writ, the petitioners appeal.

Kyle, Judge. Action by the Citizens’ Loan & Savings Company against Leo M. Warten upon a promissory note, revived in the name of R. A. Terrell, as trustee in bankruptcy of the original plaintiff. Judgment for defendant, and the trustee appeals.

B. Eoster, Judge. Bill by G. Gibbs against Della Jernigan for partition in kind or for sale for division. Decree for complainant, and respondent appeals. The bill alleges a joint ownership, or tenancy in common, between complainant and respondent, and alleges in the alternative-either that the lands can be partitioned in equity or that they are incapable of equitable partition, and so ought to be sold for division.

W. Haralson, Judge. Action by the Cable Piano Company against W. D. Estes. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. The contract was the usual conditional sales contract retaining title in the seller until the amount due was paid, and providing for retaking the property in case of a failure to pay the notes when due.

<p>Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.</p> <p>Action by Grover C. Pettis against the Louisville & Nashville Railroad Company. Judgment for plaintiff, 'and defendant appeals.</p> <p>Count' 1 is as follows:</p> <p>Plaintiff claims of the defendant the sum of $10,000 for that heretofore, to wit, on the 3d day of March, 1917, while in the employment of the Louisville & Nashville Railroad Company, at Mobile, Ala., he was injured by being struck in the face with a dump wrench, by reason of which [here follows catalogue of injuries alleged to be permanent, together with the damages growing therefrom]. And plaintiff avers that at the time of his said injury the defendant was engaged in interstate commerce in several states in the United States, and the plaintiff was employed in such commerce in and about the repair of the coal car, and was then and there injured by reason of the negligence of one Spiro Argiro, who was then and there in the employment of the defendant'.</p> <p>Count- 2, after stating the employment and the injuries as stated in count 1, avers as follows:</p> <p>And the plaintiff avers that at the time of his said injury the defendant was engaged in interstate commerce in several states in the United States, and the plaintiff was employed in such commerce in and about the repair of a coal car of defendant, and was then and there injured by reason of the defective condition of said coal car in and about the repair of which the plaintiff was working under said employment.</p> <p>Count 3, after stating the employment and damage as in count 1, alleges as follows:</p> <p>And the plaintiff avers that at the time of his said injury the defendant was engaged in interstate commerce in several states of the United States, and the plaintiff was employed in such commerce in and about the repair of a coal car, and was then and there injured by reason of the negligence of one Fred I-Iempfleng, who was the foreman and had superintendence and control of the said Spiro Argiro and of the plaintiff under said employment.</p> <p>The following charges were refused to the defendant:</p> <p>A. The court charges you that plaintiff was not engaged in interstate commerce, if the car .upon which he was working- when injured was being generally overhauled, and was not destined permanently to commerce among the states, and was not destined to anything more definite than such business as it might be needed for.</p> <p>D. The court charges the jury that the nature of the car upon which plaintiff was working when injured, as an instrument of commerce, depended upon its employment at the time, and not upon remote probabilities, or upon accidental later events.</p> <p>E. If you believe from the evidence that the car upon which plaintiff Was working was not at the time destined to anything more definite than such business as it might be needed for, then you cannot find that it was engaged in interstate commerce.</p> <p>The following charges were given at the reguest of the defendant:</p> <p>B. If you believe from the evidence that at the time plaintiff was injured he was working on a car which was not at that time consigned to any future use or trip, and at that time it was uncertain as to what use or what nature of work or business the car would be put to after the completion of the repairs, then you cannot find that plaintiff was engaged in interstate commerce.</p> <p>C. If you believe from the evidence that the car on which plaintiff was working at the time he was injured was not assigned to interstate commerce business, but its future use was uncertain and merely problematical, then you cannot find for' the plaintiff under the counts alleging that plaintiff was engaged in interstate commerce.</p> <p>Before recovery can be had under the federal Employers’ Liability Act it must "be shown that the implement of commerce upon which plaintiff was at work was at the very moment of his injury employed in interstate commerce, and it was not so employed, unless it was assigned to such commerce at the very time of the injury. 242 U. S. 353, 37 Sup. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54; 239 Fed. 713, 152 C. O. A. 547; 195 Ala. 382, 70 South. 655, Ann. Cas. 1917E, 292 ; 200 Ala. 251, 76 South. 17. The court erred in suppressing interrogatory, One injured while engaged in work, not assigned to him by the master, cannot recover of the master for such injuries. 194 Ala. 126, 69 South. 604; 122 Ala. 231, 25 South. 34; 6 Ala. App. 317, 59 South. 311. It is not negligent to fail to warn the employee against danger, where there is no reason to believe that he will be subjected thereto. 164 Ala. 84, 51 South. 385. See, also, 174 Ala. 625, 57 South. 441, and Labatt, M. & S. § 1531. .</p> <p>On rehearing,.counsel insist that the right shall be determined either by the state law or the federal law, and cannot be determined by both. 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139; 244 U. S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662; 244 U. S. 360, 37 Sup. Ct. 620, 61 L. Ed. 1194.</p> <p>The complaint sufficiently set up the cause of action under the federal Employers’ Liability Act. 194 Ala. 94, 69 South. 611; 199 Ala. 377, 74 South. 580. Negligence was sufficiently averred. 57 Ala. 145; 194 Ala. 134, 69 South. 540; 19S Ala. 590, 73 South. 933. The facts alleged show a duty owing. 6 Ala. App. 413, 60 South. 486; 196 Ala. 107, 72 South. 35; 178 Ala. 515, 59 South. 445 ; 200 Ala. 543; 151 Ala. 327, 43 South. 841. The court properly submitted the guestion of liability to the jury. 239 TJ. S. 349, 36 Sup. Ct. 124, 60 L. Ed. 322; 242 U. S. 353, 37 Sup. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54. Charges A, B, and E were fully covered by given charges B and C.</p>

S. Williams, Judge. Bill by the State of Alabama, on the relation of T. M. Patterson, its Solicitor, against Helen Crews and another, to condemn land because of the operation by them, or knowingly permitting the operation, of a distillery for the making of contraband liquors. From a decree of condemnation, respondents appeal. The answers admit the ownership of the land, but deny all the other allegations of the bill.

<p>1. Animals <&wkey;36i/2 — Tick inspector’s negligence in dipping animal held question for jury.</p> <p>In an action against a stock inspector for the death of plaintiff’s cow while being dipped by defendant, evidence held sufficient to take to the jury the questions whether defendant was negligent in permitting the cow to drink of some of the liquid which had flowed from the dipping vat, and whether such negligence was the cause of her subsequent death.</p> <p>2. Appeal and error <&wkey;>24l — Weight of evidence not raised by request for affirmative charge for defendant.</p> <p>A request for the affirmative charge for defendant raises only the question whether there is evidence sufficient to take the case to the jury, but does not raise the question whether the verdict is against the weight of evidence.</p>

<p>1. Mortgages &wkey;>59l (I) — Conveyance to junior mortgagee from purchaser on foreclosure of mortgage given by purchaser at foreclosure of first mortgage is in effect a statutory redemption.</p> <p>A deed from the holder of a title through foreclosure of a mortgage to secure the purchase money bid at foreclosure of the first mortgage against the land, which deed was given to an assignee of the second mortgage executed by the original mortgagor, is in _ effect a statutory redemption from the original foreclosure by the assignee, who was a junior mortgagee under Code 1907, § 5746.</p> <p>2. Mortgages <&wkey;595 — Statutory redemption operates upon title and is against holder of title.</p> <p>Statutory redemption under Code 1907. § 5746, is founded on, its process is governed by, and it operates upon the title so that any statutory redemptioner from the foreclosure of the first mortgage must have recourse to the holder of the title, regardless of intervening foreclosures by which the title was acquired.</p> <p>3. Mortgages <@=3595 — Purchaser at foreclosure of mortgage given by purchaser at foreclosure of first mortgage is vendee of purchaser under first mortgage.</p> <p>Where the purchaser at foreclosure of the first mortgage against the property gave a mortgage to secure the purchase money bid, which was subsequently foreclosed, the purchaser at the subsequent foreclosure sale was a vendee from the purchaser under the original mortgage against whom redemptioiners from the sale under the original mortgage must proceed.</p> <p>4. Mortgages <&wkey;594(5) — Purchaser at first foreclosure cannot redeem from junior mortgagee who in effect redeemed by purchasing title after foreclosure of original purchaser’s mortgage.</p> <p>Where complainant, the purchaser, at foreclosure of the first mortgage against the land gave a mortgage to secure the purchase money, which was subsequently foreclosed by sale, and the assignee of a second mortgage in effect redeemed from the sale under the first mortgage by procuring a conveyance from the purchaser at the foreclosure of complainant’s mortgage, complainant cannot redeem from such assignee on the theory that he was redeeming from the foreclosure of the mortgage given by him.</p>

<p>Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.</p> <p>Bill by Mollie McDonald and others against A. L. McAlily and others, to annul a decree of the probate court and to cancel a deed. From a decree sustaining demurrers to the bill, complainants appeal.</p> <p>The bill was filed December 19, 1919, by the next of kin, of T. J. Dickson, who died in June, 1918, to set aside an order and decree of the probate court of Geneva county, entered on January 11, 1919, setting aside to S. A. Dickson, surviving widow of T. J. Dickson, the homestead of the decedent, as being not in excess in value and arrear of the exemptions allowed by law, and vesting the title thereto absolutely in the said widow. The bill seeks incidentally to cancel the deed to said homestead, executed by the said widow to the respondent McAlilv on January 27, 1919. The gravamen of the bill is the alleged fraud of the said McAlily, who married a niece of the decedent, and thereby occupied a position of great influence over Mi-s. Dickson, and who, having determined to obtain the land for himself, in fraud of Mrs. Dickson and these complainants, and having consulted counsel and been advised as to the law governing homestead allotments, employed counsel to prepare a propter petition and conduct the proceedings to a decree. The bill concedes that the petition, proceedings, and' decree were in due form, and upon their face operated to vest in the nominal petitioner, Mrs. Dickson, the fee-simple title for the homestead. In support of the charges of fraud, the bill alleges the following in paragraph 5:</p> <p>“That the said S. A. Dickson had been very feeble and in bad health, and was old and infirm, and incapable of performing business transactions, or incapable of taking steps in any court proceeding, or of looking after or protecting her rights in and to said property; that she was ignorant, uninformed, unable to read or write, and did not know or understand the nature of the petition presented to her, and did not know or understand that in fact its purpose was to vest in her the legal title to all the lands in question. The complainants aver that the said McAJily, at the time, well knew her condition, and well knew her incapacity to appreciate and understand the nature of the ae.tibri he was asking her to perform, and with such knowledge and with the intent and purpose to benefit himself and to defraud the said S. A. Dickson, and these complainants purposely procured her signature by mark to a petition, the purpose of which has been stated, the said S. A. Dickson, not knowing its contents or its effect. Moreover the complainants charge that said petition was false, in that the land in question was worth at least $5,000 at the date of the death of Dickson, and at the time of the signing of the petition, some of it being well timbered, all of which was well known to the said McAlily and the said widow, ;; * * that it was not the purpose or intent of * * * S. A. Dickson to file in the probate court a petition such as was filed, ,or any petition whose purpose was to vest in her the legal title to the lands in question, or any right therein, to the exclusion of the rights of these complainants in and to the same, and therefore she signed no such petition, and her alleged or purported signature thereto was procured in the manner and form stated for a fraudulent purpose and design on, the part of the said McAlily, who conducted for her and in her name, the proceedings throughout of which, and the effect of which, she was wholly ignorant.”</p> <p>It is further charged that said McAlily, pursuing his scheme to defraud, filed said petition without any authority from Mrs. Dickson ; that one of the commissioners appointed by the court could not sign his name; that they signed a report prepared at the instance of McAlily valuing the land at $2,000; and that the court made its decree without further proof in the matter. It' is further alleged that the decree in question was signed by the chief clerk of the probate office in the name of the probate judge; that the clerk was without legal authority to do so, and that for that reason the decree is void. The demurrers to the bill, original and amended, challenge it for want of equity and for the insufficiency of its allegation to show fraud in the procurement of the decree or to show its validity for any reason.</p> <p>. A court of equity has jurisdiction to relieve against fraud in judicial proceedings. 204 Ala. 133, 85 South. 799, and cases cited. The proceedings are in rem, and the decree 'does not estop the complainants. 103 Ala. 614, 15 South. 897. A decree procured by ^perjury will be set aside at the instance of a .person at interest. 138 Wis. 260, 119 N. W. '865, 19 L. R. A. (N. S.) 1080; 141 U. S. 589, •12 Sup. Ot. 62, 35 L. Ed. 870; (D O.) 180 Fed. 144.</p> <p>If Mrs. Dickson could not attack the probate proceeding, certainly the present complainants cannot. No fiduciary relation is shown. 19 Cyc. 526; 8 Cyc. 564. The fraud is not well pleaded. 16 Cyc. 231; 20 Cyc. 97, 98; 135 Ala. 302, 33 South. 659; 3 Ala. 352; 56 Ala. 340; 52 Ala. 282; 68 Ala. 617; 69 Ala. 40. There was no equity in the bill. 201 Ala. 226, 77 South. 752; 186 Ala. 310, 65 South. 209; 188 Ala. 667, 65 South. 988; 194 Ala. 537, 69 South. 948; 114 Ala. 630, 21 South. 534; 114 Ala. 551, 21 South. 490, 62 Am. St. Rep. 133; 170 Ala. 362, 54 South. 172.</p>

<p>Appeal from Circuit Court, Greene County; R. I. Jones, Judge.</p> <p>Bill by Mrs. S. J. Dimick against Mary E. and M. H. May, to foreclose a mortgage. Decree pro confesso for complainant, which the court refused to set aside, and defendants appeal.</p> <p>Under the showing made, the respondents were entitled as a matter of right to have the decree pro confesso set aside and file answer. Section 3167, Code 1907; Sims, Chan. Prac. § 376. If not a matter of right, it was an abuse of discretion to refuse the request. Authorities supra.</p> <p>The answer as filed would have been of, no avail, and could not have been filed as a matter of right. 118 Ala. 351, 23 South. 703; 168 Ala. 317, 52 South. 949.</p>

<p>Mortgages <&wkey;38(2) — Proof must be clear that absolute deed a mortgage.</p> <p>To have complainant’s absolute deed declared a mortgage, Ms evidence must be clear, unequivocal, and convincing.</p>

Action by .Sarah Crim, as administratrix of the estate of her deceased husband, against the Louisville & Nashville Railroad Company for damages for the death of her intestate. Judgment for the defendant, and plaintiff appeals. Crim, the intestate, and Parrish were dispatchers on the Louisville & Nashville Railroad at a point in Chilton, which was an order point handling orders for intrastate and interstate trains, each working his separate trick.

Greene, Judge. Bill by the State of Alabama on relation of Joseph Tate, solicitor, for the condemnation of one Liberty roadster automobile, because used in the illegal transportation of prohibited liquors, with claim to the same by Mrs. M. I. Glass. From a decree of condemnation, claimant appeals.

Locke, Judge. Bill by Eula R. Morris against Ada May Tucker, as administratrix of the estate of James L. Gilbert, and others, to remove the administration from the probate to the chancery court, for an accounting and the collection of a judgment and another claim against the estate. From a decree overruling demurrers to the bill as amended, respondents appeal.

W. Haralson, Judge. Action by Dora Copeland against J. G. Brown. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. The action was upon a promissory note executed by the defendant to the plaintiff, and the pleas were non est factum and want of consideration.

Locke, Judge. Bill by Frank Williams against Mattie Williams for a receiver, to wind up a partnership, and for* an accounting. From a decree overruling demurrers to the bill, respondent appeals.

P. Almon, Judge. Action by I. S. White against M. C. Camody and another, individually and as partners. Judgment for plaintiff, ahd defendants, appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. The complaint is in two counts, declaring upon a certain written contract between the parties, which is exhibited. The contract shows a joint enterprise for the manufacture of and marketing of cross-ties.

Wilkinson, Judge. Action by Beatrice L. Smith against Lee C. Bradley, as receiver of the Birmingham Railway, Light & Power Company. Judgment for defendant, and plaintiff appeals. The court erred in directing a verdict for the defendant, as many jury questions were presented by the evidence. 67 Ala. 16; 7 Ala. App. 608, 61 South. 42; 90 Ala. 60, 8 South. 86, 24 Am. St: Rep. 761; 92 Ala. 291, 9 South. 410, 13 L. R. A. 95; 57 Hun, 452,10 N. Y. Supp. 636.

<p>1. Telegraphs and telephones <&wkey;>36 — “Promptly” transmit and deliver defined.</p> <p>“Promptly,” within the implied undertaking of a telegraph company, on accepting a message for transmission, to transmit and deliver it promptly, means expeditiously and without undue delay, that is, as quickly as practicable under the circumstances.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, First and Second Series, Promptly.)</p> <p>2. Telegraphs and telephones <&wkey;>65(l) —• Charging negligence in complaint for not transmitting and delivering promptly unnecessary. .</p> <p>The complaint for failure of telegraph company to transmit and deliver a message promptly need not .charge negligence; absence of negligence in respect to such failure being a legal excuse therefor, and so defensive matter.</p> <p>3. Telegraphs and telephones &wkey;>65(I)— Complaint held to sufficiently charge implied undertaking to transmit and deliver promptly and breach thereof.</p> <p>Complaint alleging undertaking of telegraph company to transmit and deliver message, also facts from which the law implies an obligation to transmit and deliver promptly, and charging breach in accordance with the duty assumed, is ■ sufficient.</p> <p>4. Action <&wkey;48(3) — Breach of two implied obligations under contract may be joined.</p> <p>There may be joined in the same complaint in action on contract to transmit and deliver telegram breach of the implied obligation to do. so promptly and breach of the implied obligation, in case of inability to transmit and deliver, to inform sender thereof.</p> <p>5. Pleading &wkey;>204(3) — Complaint good as to one of two causes of action not demurrable as a whole.</p> <p>The complaint for breach of two implied obligations of a contract, being good as to one, is not demurrable as a whole, but demurrer should be to the one defectively pleaded.</p> <p>6. Telegraphs and telephones <&wkey;37(10)— Duty to inform sender of inability to transmit or deliver.</p> <p>It is the duty of a telegraph company to inform the sender of a message, not only of inability to transmit it, but of inability to deliver it after transmission.</p> <p>7. Pleading &wkey;> 193(8) — Recoverability of part of damages cannot be raised by demurrer.</p> <p>Question of recoverability of damages for mental suffering, whether defendant’s liability be governed by state or federal law, cannot be raised by demurrer to complaint seeking, for nondelivery of a- ¡telegram, not only such damages, but recovery of the charge paid for the service undertaken.</p> <p>8. Pleading <&wkey;88 — Recoverability of part of claimed damages cannot be raised by plea.</p> <p>Where complaint for nondelivery of telegram seeks recovery not only for mental suffering but recovery of the charge paid, the question of recoverability for mental suffering cannot be raised by plea that the transmission and delivery was an act of interstate commerce, and governed by the federal Interstate Commerce Act (U. S. Comp. St. § 8563 et seq.).</p> <p>9. Commerce &wkey;>28 — Transmission of telegram between points in srtaie by route through another state held interstate commerce.</p> <p>The transmission of a telegram between points in the state by a route through another state, uniformly adopted and used at the time, is “interstate commerce,” governed exclusively by the federal Interstate Commerce Act, as amended by Act Cong. June 18, 1910, § 7 (U. S. Comp. St. § 8563), so that damages for mental anguish for nondelivery are not recoverable.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p>

W. Haralson, Judge. Detinue for a mule by J. E. Reedy, as administrator, etc., against Bill Kelley. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. A soldier ordered to the seat of war is not in such Imminent peril as to justify the. making of a gift causa mortis. 20 Cyc. 1236. No valid gift is shown. 174 Ala. 166, 56 South. 958; 147 Ala. 189, 41 South. 854; 99 Ala. 447, 12 South. 791; 91 Ala. 243, 9 South. 165.

C. B. Gwin, Judge. Action by H. B. Norton against W. D. Hines, as Director General of Railroads, operating the Alabama Great Southern Railroad, ' for damages ^ for the loss of baggage. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. The plea to the jurisdiction had been waived, and the court erred in permitting it at that stage. 20 Ala. 647, 56 Am. Dec. 227; 26 Ala. 585; 122 Ala. 149, 25 South. 697. 82 Am.

Clyde Little was convicted of assault with intent to' murder, and his conviction was affirmed by the Court of Appeals (89 South. 303), and he petitions for certiorari.

Greene, Judge. Petition of E. Baker Henry for mandamus to compel Wm. J. Waldrop, as Clerk of the Circuit Court of Jefferson County, to register a dog under Acts 1919, p. 1077. From a decree sustaining demurrers to the petition, petitioner appeals. No brief reached the Reporter. No brief reached the Reporter.

Mitchell, Special Judge. Action by Mrs. William B. Bloomburgh against Louis Pizitz for damages for an assault and battery. There was judgment for the defendant, which on motion of the plaintiff was set aside and new trial awarded, from which latter order and judgment defendant appeals. The charge made the basis of the order, granting a new trial was properly given in the first instance, and the order was error.

J. Garrison, Judge. Bill by Coosa County against the J. H. Scruggs Construction Company and others to require the delivery of a sufficient number of warrants to cover damages sustained in the faulty construction of a concrete bridge, or to cancel and annul said warrant. From a decree overruling demurrers to the bill, respondents appeal.

Wilkinson, Judge. Action by A. L. Aldrich, as administrator of the estate of Minnie Aldrich, against the Tyler Grocery Company and J. K. Shook, for damages for the death of plaintiff’s intestate. After demurrer for misjoinder of defendants ■ was sustained, defendant Shook was eliminated by an amended complaint. Judgment for remaining defendant, and plaintiff appeals.

<p>Appeal from Circuit Court, Jefferson County ; C. B. Smith, Judge.</p> <p>Action by John W. Spicer against the Tennessee Coal, Iron & Railroad Company, for damages for personal injuries suffered while in their employment. Judgment for plaintiff, and the defendant appeals.</p> <p>The following charges are referred to in the opinion as having been refused to the defendant:</p> <p>(7) If you believe the evidence it was plaintiff’s duty, before going upon the scaffold which fell with him, to see for himself that the scaffold and its supports were properly built, and if you believe from the evidence that plaintiff went upon this scaffold without seeing for himself that the scaffold and its supports were properly built, and as a proximate consequence thereof received his injuries, then your verdict must be for the defendant.</p> <p>(9) If you believe the evidence it was plaintiff’s duty not to enter upon the scaffold which fell with him until he satisfied himself by personal examination that the scaffold was safe; and I further charge you that if you believe the evidence plaintiff was himself guilty of negligence by reason of his violation of this duty.</p> <p>(10) If you believe tbe evidence, it was plaintiff’s duty not to enter upon the scaffold which fell with him until he had first satisfied himself by personal examination that the scaffold was safe; and if you believe from the evidence that plaintiff did enter upon this scaffold without first having satisfied himself by personal examination that the scaffold was safe, and that as proximate consequence of such action on the part of the plaintiff he received the injuries complained of, then your verdict must be for the defendant.</p> <p>(12) If you believe the evidence, the defendant, at and prior to the time plaintiff received his injuries sued for in this case, had in full force and effect for the government of plaintiff and its other employees the following rule, to wit: “Every employee before going upon any scaffold of any description must see for himself that the scaffold and its supports are properly built. Sufficient time at all times will be allowed to each employee to make this examination. He is forbidden to enter upon any scaffold until he has satisfied himself by personal examination that it is safe.” I further charge you as a matter of law that this rule was a reasonable rule, and that if you believe the evidence it was plaintiff’s duty to obey this rule; and if you believe from the evidence that as a proximate consequence of plaintiff’s violation of this rule he received his injuries, then your verdict must be for the defendant.</p> <p>(16) If you believe the evidence in this case it was plaintiff’s duty, before going upon the scaffold which fell with him to inspect this scaffold; and I charge you that if you believe the evidence in this case plaintiff violated this duty.</p> <p>The other facts sufficiently appear.</p> <p>Cause of action predicated upon defects is not properly brought under subdivision 2 of the Employers’ Liability Act. 161 Ala. 397, 49 South. 860; 11 Ala. App. 534, 66 South. 897. A temporary scaffold is not a part of the ways, works, etc. 203 Ala. 450, 83 South. 356. The complaint was not good, under subdivision 2. Alabama P. & I. Co. v. Minyard, 88 South. 145. Violation of rule enacted for safety of employee constitutes negligence as matter of law. 90 Ala. 32, 8 South. 55; 171 Ala. 233, 54 South. 566; 177 Ala. 487, 59 South. 264.</p> <p>The demurrers to count 4 were properly overruled. 159 Ala. 178, 49 South. 302; 13S La. 32, 70 South. 30; 97 Ala. 240, 12 South.' 92. Under the facts of the case plaintiff was entitled to recover on count 4. 16 Ala. App. 227, 77 South. 65; Labatt, M. & S. § 1435;-Dresser, Em. Liability, 290; 144 Alq. 280, 40 South. 211. Whether there is a negligent violation of a rule is always a jury question. 171 Ala. 216, 55 South. 93; 97 Ala. 211, 12 South. 176; 94 Ala. 545, 10 South. 283.</p>

Locke, Judge. Bill by James Ellis against Alberta Drake to restrain dispossessing him under an execution in ejectment, and declare a trust in certain lands, and for general relief. From a decree sustaining demurrers to the bill, complainant appeals.

B. Smith, Judge. Action by John Millonas against the United States Fidelity & Guaranty Company for damages for causing loss of employment. Judgment for the plaintiff, and the defendant appeals. The plaintiff was without cause of action, as the act done or threatened was a lawful act, or such an' act as he has a lawful right to do. 163 Ala. 348, 50 South. 1008; E. R. 1898, App. Cas. 1; 68 Vt. 219, 35 Atl. 53, 33 E. R. A. 225, 54 Am.

C. Brickell, Judge. Bill by R. S. Long and others against Malinda Brown and others for the sale of land for division. From a decree sustaining demurrers to the bill, complainants appeal.

Clair County; O. A. Steele, Judge. Action by S. A. Vaughan against the Alabama Fuel & Iron Company for damages for injury to land by overflow. Judgment for the plaintiff, and the defendant appeals. Transferred from Court of Appeals, under section 6, Acts 1911, p. 449. Count 3 is as follows: Count 3.

Foster, Judge. Statutory ejectment by Miss C. A. Lewis against William D. Johnson. Judgment for defendant, and plaintiff appeals.

Locke, Judge. Bill by Jere G. King against .the E. A. Bradford Undertaking Company, a corporation, and the officers thereof, for mandamus to compel the transfer of certain stock on the boobs of the corporation to the complainant and to issue certificates therefor. From a decree overruling demurrers to the bill, respondents appeal.

Wilkinson, Judge. Action by T. J. Jernigan against the Kop pers Company for damages for personal in. juries sustained wbile in tbe employment o the defendant. Judgment for plaintiff, and defendant appeals.

Locke, Judge. Bill by the State of Alabama against Penelope Jebeles, the Jebeles & Colias Confectionery Company, and the Colias Candy Company, a corporation, seeking to condemn certain real estate situated in the city of Birmingham because used for the housing and operation of a distillery or plant for the manufacture of prohibited liquor. 1-' m a decree denying condemnation, the State appeals.

Action by Luta P. Salter against M. S. Carlisle for damages for injuries growing out of an automobile collision. Judgment for the defendant, and the plaintiff appeals. The following charges were given* at the request of the defendant: (10) If the plaintiff was negligent in the least bit, which contributed proximately to her injuries, then she could npt recover.

<p>1. Divorce &wkey;>l6l — Decree pro confesso held subject to vacation by chancellor.</p> <p>A decree of divorce entered pro confesso reciting, “the defendant * * * not having been personally served, this decree is subject to the provisions of sections 3170 and 3171 of the Code of Alabama of 1907, and does not become absolute except as provided by said law,” was not final or conclusive, but only to become so after the expiration of 12 months, and defendant had such time within which to have Ms day in court, to open the decree and defend upon the merits, and on the filing of a petition by the defendant, the chancellor had the power, and it was his duty, upon sufficient cause shown, to open the decree and hear the cause upon the merits, as if no decree had been rendered.</p> <p>2. Divorce (&wkey;>l6l — Court erred in not opening decree against nonresident.</p> <p>• On petition by nonresident defendant in divorce case, who had not been personally served, and to whom no copy of the bill had been mailed at his true address as provided by Laws 1915, p. 604, held that averments were sufficiently supported by proof to call for an opening of the decree and a hearing upon the merits under Code 1907, §§ 3170, 3171.</p>

Petition by W. C. Shirey for certiorari to the Court of Appeals to review and revise the judgment of said court rendered on the appeal of W. C. Shirey v. State of Alabama, 90 South. 72. Counsel discuss the merits as insisted upon by them; but, in view of the opinion, it is not deemed necessary to here set them out. The petition for certiorari should be dismissed, because violative of rules 38 and 42, Supreme Court Practice (198 Ala. xiii, xiv, 77 South, vii).

Turner, Judge. Bill by Agnes Cox against the Davis-Wilson-Gaillard Commission Company and another to declare a mortgage and foreclosure deed void, and in the alternative to redeem. From a decree dismissing the bill, the complainant appeals. It was unnecessary, under the allegations' of the bill to go further and allege possession in complainant. 131 Ala. 280, 31 South. 603. No demurrer takes this point anyway. 132 Ala. 96, 31 South. 517; 8 Ala. 920, 42 Am. Dec. 669.

K. McMorris, Judge. Action in the nature of quo warranto by the state of Alabama on the relation of T. W. Brunson and others, citizens, etc., against the Town of Tallassee and others, to annul the incorporation of the town and to oust its municipal government. From a decree granting the relief prayed, respondents appeal.

Proceeding by the State, on the relation of W. T. Seibels, as Solicitor, to condemn one Ford sedan, because used by Pete Flynn in transporting prohibited liquor, with claim by Mrs. Ethel B. Farley, as mortgagee. From a decree for claimant, complainant appeals. Under the evidence, the automobile,should have been condemned and sold. The transcript was not filed in time, and the case should he dismissed.. 205 Ala. 112, 87 South. 363.

K. McMorris, Judge. Assumpsit by Charles Phillips against J. M. Langston. Judgment for plaintiff, and defendant appeals. The, court erred in rendering judgment on the facts, as the note was null and void. Section 232, Const. 1901; sections 3651-3653. Code 1907; 15 Ala. App. 675, 74 South. 701; 90 Ala. 549, 8 South. 42; 146 Ala. 513, 40 South. 0S7; 160 Ala. 370, 49 South. 319, 135 Am.

<p>Intoxicating liquors &wkey;>25l — Evidence held sufficient to show seized automobile property of user.</p> <p>In a proceeding to condemn an automobile used in transporting prohibited liquors, where the user’s wife claimed the car, evidence that the husband contributed part of the cash payment, paid for all repairs, generally used the car as his own, claimed it as his at the time of the seizure, and, when the seller refused to sell to claimant, executed the purchase-money notes, held sufficient to show that the car was his, though claimant furnished the remainder of the purchase price from money earned from boarders and money borrowed by her.</p>

<p>1. Insurance <&wkey;8l5(4) — -Proof of death essential.</p> <p>In an action by a beneficiary to recover on a benefit life certificate, plaintiff must prove the death of insured; that being one of the essential averments of the complaint.</p> <p>2. Insurance <&wkey;809— Insurer’s refusal to pay on another ground, not waiver of defense that insured was alive.</p> <p>Refusal by insurer to pay a benefit certificate on the ground that insured became engaged in aviation held not a waiver of defense that insured was still living.</p> <p>3. Pleading <&wkey;93(l)— On trial of one plea, advantage cannot be taken of admissions in another.</p> <p>There may be separate and distinct pleas, setting up different defenses, and plaintiff cannot on trial of the issue on one plea, take advantage of an averment or admission contained in another plea.</p> <p>4. Tender &wkey;s22 — Averments of plea of tender stated.</p> <p>Under Code 1907, vol. 2, p. 1202, form 36, must be used for plea of tender, and it must aver the amount due, that it was tendered before suit, and that the money is in court, or if no tender made before suit, the plea should aver the amount brought into court, and should bring into court a sufficient sum to cover costs to date.</p> <p>5. Tender <&wkey;>22 — -Plea of tender held insufficient.</p> <p>In a suit on a fraternal benefit certificate, a plea of tender by defendant, stating the amount it claimed to be due, that it has been ready, willing, and able to pay it before suit was filed, that plaintiff would not accept it, and gave defendant no opportunity to pay same before action was commenced Jield insufficient, in view of Code 1907, § 5334, to show that a cause of action did not exist when suit was commenced.</p> <p>6. Insurance <&wkey;815(2) — Plea of insurer relating to proof of death held insufficient.</p> <p>In a suit on a benefit certificate, a plea, not verified by affidavit and therefore defective as a plea in abatement, averring that no satisfactory proof of death was received, if considered as a plea in bar, was defective, in view of Code 1907, § 5332, for failure to aver that no proof of death was received.</p> <p>7. Insurance &wkey;?755(2) — Waiver no bar, where prohibited by contract.</p> <p>Where the laws of a fraternal benefit society prohibited waivers by subordinate bodies or officers, as authorized by Acts 1911, p. 713, § 20, and such laws were part of the contract and presumed to be known to insured, waiver of increased rates by acceptance of old rates by clerk of subordinate body held no bar.</p> <p>8. Insurance &wkey;»755(I) — Insurer’s refusal to pay benefit certificate on one ground no estoppel to another defense.</p> <p>That a fraternal benefit society had refused payment of the policy, because insured changed his occupation from teacher to aviator without notice or payment of increased assessments, held, not to estop the society from claiming that the policy was void, because insured changed his occupation from teacher to a soldier in the army without notice or payment of additional assessments.</p> <p>9. Corporations <&wkey;513 (5) — Pleadings held to admit corporate character of benefit society and that it was sued by right name.</p> <p>Where suit was brought against “Woodmen of the World, a corporation, defendant,” failure to file plea of misnomer, or of nul tiel corporation, and filing a plea of general issue and special pleas, held to admit the corporate character of defendant, and that its name was as described in the complaint.</p> <p>¡0. Corporations &wkey;s595 — Name under which corporation is sued presumed its name, in absence of plea of misnomer, or nul tiel corporation.</p> <p>Where defendant was sued as “Woodmen of the World, a corporation, defendant,” and its name as appearing on the certificate was “Sovereign Camp of the Woodmen of the World,” in the absence of plea of misnomer, or of nul tiel corporation, and a plea of general issue being filed, it will be presumed that the corporate name of defendant is “Woodmen of the World,” as described,- and that the certificate was issued by the Sovereign Camp of defendant.</p> <p>il. Pleading &wkey;>29l (2) — Signed instrument sued on, and as to which there was no plea of non est factum properly admitted without proof of execution.</p> <p>•It was not necessary to prove execution of a signed written instrument, which was the foundation of the suit, and as to which no plea of non est factum was filed, and it was properly admitted in evidence, in view of Code 1907, § 3967, providing that every written instrument purporting to be signed must be received in evidence without proof of execution, unless execution is denied by verified plea.</p> <p>12. Evidence &wkey;l79(2) — Parol evidence of papers relating to proof of death held admissible.</p> <p>In a suit on a fraternal benefit certificate, where, after demand of defendant for the original papers relating to proof of death mailed by plaintiff, they were not produced, párol evidence of their contents was admissible in view of Code 1907, § 4058.</p> <p>13. Insurance <&wkey;>8l8(4) — Certificate of War Department records held admissible as proof ' of death.</p> <p>In a suit on a fraternal benefit certificate, a certificate of the records of the War Department, showing that insured died while in military service in the line of duty, and not as a result of his own misconduct, held admissible in evidence under the by-laws of the society.</p>

<p>1. Homicide &wkey;>123 —Officers going on porch without intent to search without warrant not 'trespassers.</p> <p>Officers who went on the porch of accused’s house in a peaceable manner and with lawful purpose, and without intent to search his barn for intoxicating liquors without a warrant, if he objected, were not trespassers, and court properly refused to so charge in a homicide case.</p> <p>2. Homicide <&wkey;>199 — in determining degree of guilt, jury may consider Whether officer entering house without search warrant was a trespasser.</p> <p>. Where some officers went on front porch of accused’s house, and another officer went to the rear of the house and entered there at the wife’s invitation to search for intoxicating liquors, he was not a trespasser; but if he commanded accused’s wife to open the door, and thereupon entered and began a search, he was a trespasser, and accused, in a prosecution for homicide of one of the officers while searching the barn, was entitled to have the jury consider that fact in fixing the degree of his guilt, as giving color to the provocation accused may have had at his barn.</p> <p>3. Homicide <&wkey;>187 — Provocation not admissible on issue of self-defense.</p> <p>Where officers went to defendant's house in the nighttime to search for intoxicating liquors, and one of the officers entered the rear door, where defendant’s wife was in her nightgown, evidence that such officer entered without invitation was not admissible on the question of self-defense, though admissible to show provocation, to be considered by the jury in fixing the degree of his guilt in subsequently killing one of the officers while searching his barn.</p> <p>4. Witnesses <&wkey;>270(2) — Cross-examination of defendant’s witness held improper.</p> <p>In a prosecution for killing of officer while searching barn for intoxicating liquors, it was error to permit the state, on cross-examination of a witness who .testified that on the night of the killing, before the officers went to defendant’s house, they stopped at witness’ house and drank whisky and became drunk, to ask whether or not witness’ husband pleaded guilty to a violation of the prohibition law; purpose of such cross-examination evidently being to contradict testimony of witness that there was no whisky in her husband’s car, the husband not testifying.</p> <p>5. Witnesses <&wkey;>337(6) — Error to require defendant to testify whether he was-under suspended sentence.</p> <p>In a prosecution for killing an officer while searching defendant’s barn without a warrant to discover intoxicating liquors, it was error to allow the state to ask of defendant whether he was at the time of the hearing under a suspended sentence in the federal court for distilling liquor, his answer being “Yes,” since Code 1907, § 4009, must be construed in pari materia with section 4008; distilling of iiquor not involving moral turpitude.</p> <p>6. Witnesses <@=3376 — Witness should not speak of candor of own testimony.</p> <p>Where sheriff testified as witness for state, and did not deny that he had said he would like to have a rope around defendant’s neck, it was error, on redirect examination, to overrule an objection to question: “You speak of not feeling as good toward Mr. L. (defendant). Your feeling is not such as would cause you to bias your testimony?” — since such question was an invasion of the province of the jury to determine to what degree the feeling of the witness had affected his testimony.</p> <p>7. Criminal law <@=3855(6) — Officers should not enter jury room.</p> <p>The presence of a bailiff or deputy sheriff in a jury room for from 10 to 30 minutes should not have been permitted, especially where accused was on trial for killing a member of the sheriff’s official family, and the sheriff was an important witness for the prosecution.</p>

Locke, Judge. Bill by Stephen Bell against R. H. Brown and S. B. King, to enjoin the foreclosure of a mortgage and to redeem. From a decree overruling demurrers to the bill, and declining to dissolve the injunction, respondents appeal. There was no equity in the bill, and the injunction should have been dissolved. 77' Ala. 371.

Bill by the Watters-Tonge Lumber Company against D. R. Knox and others to declare a deed void as against creditors and to subject said property to the debt. From a decree denying relief and dismissing the bill, complairjiant appeals. The bill and prayer is sufficient to authorize relief. 93 Ala. 106, 9 South. 228; 122 Ala. 343, 25 South. 214.

<p>1. Equity <&wkey;>327 — Allegations and proofs should correspond.</p> <p>Allegations of a bill and proof should correspond.</p> <p>2. Insane persons <&wkey;>6l — Deeds void.</p> <p>Deeds to land executed by an insane person are void where the grantee knows of the insanity, under Code 1907, §§ 3847 and 3348.</p> <p>3. Partition <&wkey;46(I)— Grantee son of insani person necessary party to action to set aside and partition the land.</p> <p>Where insane person executes deeds to a son, who sells his interest to a third person, the son is a necessary party to- an action to avoid the deeds and sell the land for distribution, the insane parent having died, and the son being, entitled as an heir to an interest in the property.</p> <p>4. Partition &wkey;>77(4) — Burden on complainant to show land could not be partitioned.</p> <p>In an action to set aside alleged void deeds and for sale of land and distribution of proceeds among heirs of grantor, the burden of showing that the land could' not be equitably partitioned was on the complainant.</p> <p>5. Evidence <&wkey;5(2)— No judicial notice that land cannot be partitioned.</p> <p>The court cannot judicially know that a sale of land is necessary in an action to have a deed set aside and land sold and proceeds distributed among heirs of grantor.</p> <p>6. Partition &wkey;>77 (4) — Evidence insufficient to show necessity for sale.</p> <p>In a partition proceeding, evidence, “I know the Livingston place in question, and there is about 300 acres of this land cleared,” was insufficient to show that it could not be equitably partitioned .among the owners, and court erred in ordering it sold, under Code 1907, §§ 5222 and 5231.</p> <p>7. Stipulations <&wkey;!7(2) — Agreed statement of facts evidence only as between parties signing.</p> <p>In a suit involving a number of persons, an agreed statement of facts was competent evidence only as between the parties signing it.</p> <p>8. Mortgages <&wkey;>!56 — Mortgagee after recordation of deeds executed by insane person has preference over heirs of grantor.</p> <p>Where deeds executed by an insane person were regular on their face, recited cash consideration, and were recorded, mortgages given on the property by the grantee have preference and priority over rights of heirs of the insane grantor, if' the mortgagees had no actual or constructive notice that grantor was insane, and knew of no fact or circumstance sufficient to put them on inquiry; a mortgagee of real estate being regarded as a purchaser, and being entitled to equal protection, under Code 1907, §§ 3347 and 3348.</p> <p>9. Mortgages <&wkey;l86(3)— Burden on mortgagee to show bona tides.</p> <p>The burden is on a mortgagee of land conveyed to mortgagor by insane person to show the bona tides of his debts and mortgages, and then the burden shifts onto an heir of the insane person, seeking to have the deed declared null and void, to prove that mortgagee h,ad actual or constructive notice before the execution of the mortgage that grantor was insane when the deed was executed.</p>

Bondurant, Special Judge. Action by George W. Courson, as constable, against William J. Waldrop, as clerk, to recover certain fees alleged to have been earned by him. Judgment for plaintiff, and defendant appeals.

B. Smith, Judge. Action by I. K. Sorsby against Hattie C. Wilkerson and others, for damages to trespass to land and the conversion of certain lumber Judgment for defendants, and plaintiff appeals. The verdict was clearly contrary to the weight of the evidence and should be set aside.' 116 Ala. 142, 23 South. 53; 171 Ala. 294, 54 South. 626. The burden was on the defendant to show payment of the mortgage debt. The defendants were guilty of conversion. 12 Ala.

Bill by Mary W. Barrington against Richard L. Barrington for divorce. From a decree overruling demurrers to the bill, respondent appeals. The bill is insufficient in the averment of cause. 39 Ala. 349; 1 Bishop on M. & D. § 5; 19 C. J. 108; 200 Ala. 315, 76 South. 81. The statute is arbitrary and unreasonable. 169 U. S. 385, 18 Sup. Ct. 383, 42 L. Ed. 780; 134 U. S. 160, 10 Sup. Ct. 384, 33 L. Ed. 835; 137 U. S. 483, 11 Sup. Ct. 143, 34 L. Ed. 734; 184 U. S. 560, 22 Sup.

Petition of Luther Driver and Enoch Mims for certiorari to the Court of Appeals, to review and revise the judgment of said court rendered on the appeal of Luther Driver and Enoch Mims against the State. The court erred in holding that the taking from a porch of a dwelling house was grand larceny, irrespective of the value. 39 Ala. 680; 201 Ala. 388, 78 South. 450; 193 Ala. 456, 69 South. 545; 186 Ala. 561, 65 South. 333; 70 Ala. 8, 45 Am.

M. Miller, Judge. Action by J. W. Green against the Grand International Brotherhood of Locomotive Engineers and ethers. Judgment for plaintiff, and defendant named appeals. The suit as originally filed was against the defendant named, together with John Nelson, John S. O’Gwyn, John T. M. Riser, Felix McDonald, VY. S. Stone, C. H. Salmon, and W. S. Futch.

Petition of Joseph Patt for certiorari to Court of Appeals to review and revise a judgment of that court rendered on the appeal of said Joseph Patt in an action against R.’ G. Welsch, 89 South. 94. The opinions of the Court of Appeals have been reviewed in the following cases: 201 Ala.'55, 77 South. 349; 201 Ala. 59, 77 South. '353; 201 Ala. 525, 78 South. 879 ; 200 Ala. 378, 76 South. 294; 188 Ala. 1, 66 South. 148; 200 Ala. 496, 76 South. 438; 203 Ala. 5S5, 84 South. 725.

Action by Vernon Merritt against D. H. Haigler and another. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Plaintiff sued to recover bis broker’s commission for selling certain real estate to one S. M. Wehr.

<p>1. Estoppel <§=>94(I) — One who induced another to purchase timber by agreement to use it in sawmill estopped from claiming interest therein.</p> <p>Sawmill proprietor who induced another to purchase the timber on certain land by agreeing to buy it for his sawmill, without intimating that he claimed any right in such timber, was estopped by reason thereof from asserting any claim as against such purchaser. •</p> <p>2. IfStoppel <§=>116 — Burden of establishing defense of estoppel upon defendant.</p> <p>In action to restrain cutting and removal of timber, defendant, claiming that plaintiff was estopped from claiming an interest in the timber, had the burden of proving such estoppel.</p>

M. Miller, Judge. Action by N. E. Jones against the First National Bank of Greensboro. Judgment for defendant, and plaintiff appeals. Two checks were drawn by J. W. Blair, payable to appellant, N. E. Jones, delivered to him, indorsed by him, and placed on deposit by Jones & Blair with the First National Bank of Greensboro in escrow, under the following contract: “This contract made and entered into this day between N. E. Jones, party of the first part, and J. AY.

Bill by M. P. McLain against the Griel Bros. Company and Carew Powell, to enjoin the foreclosure of a mortgage and to annul and cancel same. From a decree granting the relief prayed, respondent appeals. See former report of.this case, 197 Ala. 136, 72 South. 410. The testimony offered in support of the bill fails signally to meet the requirements of the ' opinion in that case. The burden was on the complainant to prove fraud. 53 Ala. 197.

C. B. Gwin, Judge. Action by J. I. Bussell, as the father of Cy Bussell, deceased, against A. L. Jones and others. Judgment for plaintiff, and defendants appeal.

Locke, Judge. Bill by Mary Taylor and others against Kate C. Fulghum and others, to review a decree of the city court of Birmingham, rendered in the cause of Sam Will John, as administrator of the estate of Edwin A. Taylor against Maggie A. Taylor and others, heirs of the decedent. From a decree denying relief prayed, complainants appeal. The deed to the administrator, there being no debts, vested the legal title in the. heirs. Section 3408, Code 1907, and cases cited.

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p> <p>Bill by Annie V- Roche against F. M. Slocumb, her guardian, and others, as purchasers, to vacate and annul a sale of'complainant’s land, made on petition of hex-guardian for the purpose of reinvesting the proceeds moi-e advantageously for his ward. Decree for respondents, and complainant appeals.</p> <p>As tried in the court below, this cause is a consolidation of two independent proceedings in equity, and they are so treated - in this appeal. The petition and the proceedings for the sale of the land were in due form, and on March 19, 1912, the guardian reported that he had sold the land for the sum of $6,000 to Brake Lucas and R. A. Pinkston, and that they hád paid the purchase money in cash, and on April 9, 1912, the probate court entered an order confirming the sale and directing that the deed be made to the purchaser, which was done- and possession .delivered to him. The equity of the bill is based upon the allegations of paragraph 5 as follows:</p> <p>That,the order for said sale and the subse-quent proceedings were not conducted fairly or legally, but fraudulently, and are void, as in violation of the power given by the order to sell for reinvestment. Oratrix avers, on information which she believes to be true, that said land (520 acres) was then well worth $25 per acre, and is now worth $40 per acre, and that the said guardian well knew its value. Oratrix avers that before said sale, to wit, on .the 18th day of December, 1011, said guardian entered into a written agreement with one Brake Lucas to swap said 520 acres of land for a plantation of 445 acres in Macon county, known as the Boyd place, belonging to said Lucas, the terms being as stated in said agreement, a copy of which is hereto attached as part of this bill and is marked Exhibit O. Oratrix avers that said agreement was carried out between said parties thereto; that said guardian filed said petition to sell in pursuance thereof, 'and had said sale made in a way that said land would not bring more than $6,000, the price at which he had agreed to sell it to said Lucas, and that the whole transaction was a corrupt bargain between said guardian and said Lucas to obtain said decree for the sale of said land, and the confirmation of the bid and the conveyance to the purchasers as upon a boria fide sale made in pursuance of the law; that the said contract to swap land with said Lucas on the terms stated in said agreement was a fraud upon oratrix and upon the court innocently making the orders in said matters, whereby the conveyance of oratrix’s land was made to said purchasers; that the result of this contract was to corrupt the said guardian and engage his efforts to obtain said sale, and to limit the price at which said 520 acres might bring to the sum of $6,000,' and thus inspired the terms of the guardian’s petition and of his deposition taken in the proceeding, and doubtless of his conduct in .other ways, to depreciate the. value of the said land, so that it would not bring over $6,000, when it was then well worth more than twice that amount. And oratrix avers that said fraud was outside of and collateral to the judgments pronounced in said proceeding by the probate court in directing and confirming said sale, and prevented a fair presentation of oratrix’s case to th.e court, and rendered the said proceedings void as to oratrix and open as to collateral attack. And oratrix accordingly insists that said judgment, of sale of oratrix’s land be declared null and void as to her, and that the deed made by said guardian to said purchasers, Brake Lucas and Richard Pinkston, be so declared, and that this court will direct a reconveyance of said lands to be made to oratrix, and that she recover from the said Lucas and Pinkston the value of the use and occupation or the rents of said land for the period from and including the year 1912 to the final decree in this cause, and that oratrix be decreed to have a lien upon said 445 acres of land in Macon county conveyed by said Lucas an.d Pinkston to oratrix on said swap, for the payment of the sum found due to oratrix, and that said lands in Macon county be sold for the payment of the decree in favor of oratrix.</p> <p>The bill offers to do equity by reconveying to the proper parties the land acquired from Lucas and to account for the net rents thereof. It is alleged that complainant had no knowledge or information as to the contract between her guardian and Lucas until November, 1918; that she was an infant of tender years, and trusted in the good faith and integrity of her guardian, and never discovered his alleged fraud until said date.</p> <p>The answers of Slocumb and Lucas admit that they entered into the said agreement as to the purchase by Lucas of the ward’s lands for $6,000, and the purchase by the guardian for the ward of the Lucas lands for $5,000, but they deny any fraud or unfairness in their transactions. They assert, on the contrary, that the lands were fairly and reasonably valued by them; that the exchange was beneficent to the ward, and that it was understood between them that Lucas could acquire the ward’s land at said guardian’s sale only by bidding highest for them, and that any higher bid than Lucas’ would secure the land; that the agreement between them was merely to assure a minimum bid of $5,000, and that the sale was fairly conducted, without any suppression of bidding, and that the form of the transaction, as reported to the probate court, was merely a convenient method of handling the sale and the reinvestment of the fund.</p> <p>The other proceeding is a bill for the opening of the final settlement of Slocumb’s account as guardian and the correction of alleged errors therein prejudicial to complain-, ant. Slocumb and his sureties are made parties respondent, and in their answer they deny that there were any errors or mistakes in said account as alleged. No evidence was offered in support of this bill, other than the alleged admission in Slocumb’s answer.</p> <p>The proceeding was in rem. Petitioner ■was acting as guardian, under all the sanctions of that relation. 105 Ala. 618, 16 South. 920, 53 Am. St. Rep. 146; 101 U. S. 417, 25 L. Ed. 1052; 12 R. O. L. 1137. The fifth paragraph show's an unqualified fraud on the infant. 65 Miss. 100, 48 South. 519. 21 Ann. Cas. 1118; 129 IT. S. 80, 9 Sup. Ct. 246, 32 L. Ed. 60S; 85 Ala. 527, 5 South. 209, 6 South. 6Í2; 72 Ala. 1; 81 Ala. 530, 1 South. 217, 60 Am. Rep. 175 ; 29 Ala. 47S; 23 Wash. 132, 62 Pac. 862; 8 B. P. C. 42; 14 Ves. 273; 98 TJ. S. 61, 25 L. Ed. 93; 91 Cal. 129, 25 Pac. 970, 27 Pac. 537, 13 L. R. A. 336, 25 Am. St. Rep. 159. The cestui que trust ought to be restored to his original rights, and the settlement set aside in toto. 54 Ark. 627, 16 S. W. 1052, 13 L. R. A. 490; 95 Miss. 100, 48 South. 519/21 Ann. Cas. 1120 ; S Wheat. 422, 5 L. Ed. 651; 15 Pet. 93, 10 L. Ed. 672; 12!) U. S. 80, 9 Sup. Ct. 246, 32 L. Ed. 008; 3 I-Iow. 333, 11 L. Ed. 622; 11 Wall. 232, 20 L. Ed. 50; 56 Ala. 20$; 61 Ala. 340; 104 Ü. S. 540, 26 L. Ed. 834;. 71 Ala. 240. •</p> <p>The bill is a collateral attack on the judgment of the probate court, which is of equal dignity and as final and as conclusive as the judgment of any other court. 53 Ala. 615; 55 Ala. 590; 106 Ala. 516, 17 South. 666; 85 Ala. 522, 5 South. 209, 6 South. 612. It is as binding on a minor, when properly represented by a guardian ad litem, as upon an adult, and can be impeached in no other way. Authorities supra. The fraud alleged is not sufficient to impeach the decree. 186 Ala. 310, 65 South. 209; 170 .Ala. 362. 54 South. 172; 176 Ala. 390, 58 South. 293; 98 U. S. 61, 25 L. Ed. 93. The position taken in the two cases is as inconsistent as it is unsupported. 80 Ala. 186; 105 Ala. 615, 16 South. 920, 53 Am. St. Rep. 146; 191 Ala. 48, 67 South. 1004.</p>

<p>Appeal from Circuit Court, Marshall County; W. W. Harralson, Judge..</p> <p>Suit by J. Henry Davidson against W. B. Rice and others to temporarily enjoin trespass upon land until a suit to try title can be settled and determined. Prom a decree overruling the motion to dissolve the temporary injunction, respondents appeal.</p> <p>The court erred in overruling demurrers to the bill. 4 May. Dig. 502, and authorities there cited. The court erred in overruling the motion to dissolve the temporary injunction. Section 4526, Code 1907; 138 Ala. 185, 35 South. 48; 138 Ala. 148, 35 South. 113; 138 Ala. 221, 34 South. 1019; 140 Ala. 523, 37 South. 361; 140 Ala. 462, 36 South. 1024; 147 Ala. 28, 41 South. 973; 152 Ala. 320, 44 South. 471; 159 Ala. 595, 48 South. 675; 158 Ala. 231, 48 South. 489.</p> <p>The decree of the chancellor should be affirmed. 180 Ala. 338, 60 South. 919 ; 188 Ala. 658, 65 South. 967; 189 Ala. 181, 66 South. 50.</p>

<p>Appeal from Circuit Court, Fayette County; Henry B. Foster, Judge.</p> <p>Bill by Savannah Poe against Sarah E. Kemp to specifically enforce a contract. From a decree sustaining demurrers to the bill., complainant appeals.</p> <p>Tbe case made by the bill is that, after tbe death of John Kemp, Sarah E. Kemp procured Savannah Poe to leave her home and come to the home of Sarah E. Kemp to look after and care for her. Complainant did this, and Sarah E. Kemp erected a small cottage, staked off the lot, putting Savannah Poe in possession thereof and later delivered to complainant an instrument in the form of a will, which respondent represented to complainant as a deed to the house and lot in question. Complainant alleges that for more than five years she has cared for and looked after respondent, but that without fault on her part respondent lias abrogated the contract and refused to let complainant live with her and has ousted her or is endeavoring to oust her of possession of the premises and has made and executed a will leaving the property to another. The demurrers pray the question of complete and adequate remedy at law, that the contract was indefinite and personal, had not been wholly performed, and that the court is without jurisdiction to enforce it specifically.</p> <p>The bill contains equity, and the court ered in sustaining demurrers to it. 80 Ala. 451, 2 South. 624, 60 Am. Rep. 107; 200 Ala. 458, 76 South. 390; 36 Cye. 78; 202 Ala. 525, 81 South. 27.</p> <p>Rights under a will cannot be asserted until tbe will bas been properly probated. 108 Ala. 366, 18 South. 831; 85 Ala. 345, 5 South. 83; 65 Ala. 305; 2 Ala. 152. Tbe contract is not such as ‘the court can specifically enforce. 200 Ala. 276, 76 South. 43, and cases cited; 36 Cyc. 621, 622, and notes. 164 Ala. 329, 50 South. 1025; 157 Ala. 298, 47 South. 1007.</p>

<p>Appeal from Circuit Court, Jefferson County; Pinkney Scott, Special Judge.</p> <p>Bill by F. R. and P. M. Mathews against Bettie Goodenough, individually and as guardian of certain minors, to review said probate proceedings, to confirm the same, and quiet title to land. Decree for respondent, and complainants appeal.</p> <p>The case made by the pleadings and the proof is: That one Reuben Goodenough owned 15 acres of land near Bessemer, Ala., and died, leaving said land as his only estate, and leaving surviving him certain minor heirs, hut no widow. His death occurred in the year 1910. After his death, one of the minor heirs died without issue, that in March, 1913, Virginia Brown, one of the heirs, Bettie Goodenough, another of the heirs, and Glenn Goodenough, another heir, each for a valuable consideration, executed conveyances to F. R. Mathews and P. M. Mathews to their respective undivided one-seventh interest in the said 15 acres of land. That later Bettie Goodenough, as guardian of certain minors, desiring to dispose of said land to effect a division thereof, and complainants desiring to purchase all of said land, and offering a fair and adequate price therefor, agreed with complainants to sell the same and to give title by conveyance under article 3, chapter 121, Code of 1907, to a nominal purchaser through proceedings in the probate court of Jefferson county, which was done with the understanding that such nominal purchaser was to reconvey to complainants. Carrying out this agreement, a petition and report of sale was made to Hon. J. P. Stiles, judge of probate of Jefferson county, proper and orderly proceedings were had upon said petition, and a deed was executed by Bettie Goodenough as guardian to J. C. B. Gywnn, the agreed nominal party, who in turn executed'a conveyance to complainant, who paid to the said guardian the agreed sum of $755, whereupon complainants went into possession of the land, have since held possession, and are now in possession. The allegation then is that the proceedings above referred to were voidable, and that the respective one-seventh interest in the land is still subject to said minors. Complainants offered to submit themselves to the jurisdiction of the court and to do whatever is just, equitable, and right in the premises.</p> <p>Neither a non compos, nor a minor, nor any one under disability will be allowed to retain the proceeds of a judicial or other sale, even though void, and at the same time retain or recover the property sold. 64 Ala. 437, 38 Am. Rep. 13; 193 Ala. 368, 69 South. 574; 199 Ala. 150, 74 South. 243; 122 Ala. 609, 26 South. 139, 82 Am. St. Rep. 103; 72 Ala. 605. The decree of the probate court was final and binding, notwithstanding whatever meaning may be ascribed to sections 4196 or 4198. Certainly it was not open to collateral attack. 186 Ala. 313, 65 South. 209; 114 Ala. 633, 21 South. 534; 78 Ala. 206; ' 23 Cyc. 1055-1061. The probate court is a court of general jurisdiction as to the e,states of minors. 32 Ala. 676; 77 Ala. 521; 68 Ala. 107; 182 Ala. 631, 62 South. 170, 46 L. R. A. (N. S.) 274. The trial court misconstrued the plain intent and purpose of section 4196 as construed in connection with section 4198, Code 1907. 181 Ala. 219, 61 South. 264; 201 Ala. 574, 78 South. 918; 203 Ala. 110, 82 South. 124.</p> <p>Being all the real estate left by decedent and being of less value than $2,000, the proceedings for the sale, etc., were void. Sections 4196,- 4198, Code 1907. The doctrine of estoppel does not apply here. 59 Ala. 441, 31 Am. Rep. 20; 184 Ala. 223, 63 South. 159, 47 L. R. A. (N. S.) 543, Ann. Cas. 19J5B, 672; 113 Ala. 131, 20 South. 999; 105 Ala. 249, 16 South. 704. The sale was void and conferred no rights on any one. 98 Ala. 426, 13 South. 744; 59 Ala. 441, 31 Am. Rep. 20; 59 Ala. 532; 75 Ala. 213; sections 5254-5256, Code 1907; 191 Ala. 168, 67 South. 1008.</p>

Clair County; O. A. Steele, Judge. Bill by B. S. White against Pauline White, for divorce. From a judgment granting relief, respondent appeals. The allegations of the bill were insufficient, and this was brought to the court’s attention by the sworn plea in abatement. 173 Ala. 106, 55 South. 632; 200 Ala. 489, 76 South. 431; 174 Ala. 315, 56 South. 585; section 3801, Code 1907; 72 Ala. 345. On these authorities the court erred in neglecting to consider the plea.

Wilkinson, Judge. Bill by Wm. A. Bagley against John W. Bagley and others to redeem certain land, with cross-bill by respondents for reformation, etc. From a decree granting the relief prayed under the cross-bill, and denying relief under the original bill, complainant appeals. The effort to redeem or to buy was within the time fixed by the contract, and was sufficient. 200 Ala. 382, 76 South. 298.

Wilkinson, Judge. Action by T. L. Baker against Mary Lou Dancy and another in assumpsit. Judgment for plaintiff, and defendants appeal. In 1912 by a written contract plaintiff was authorized by defendants to find a purchaser for their land at the price of $100,000.

<p>1. Corporations <@=>52, 654 — Corporation must dwell in state in which created; powers and limitations of charter same in other states in which corporation does business.</p> <p>A corporation must dwell in state in which created, and though it may do business where-ever its charter permits, provided the right is not denied by the local law, the "powers and limitations of its charter are the same in other states in which it does business as in the state of its creation.</p> <p>2. Corporations <&wkey;665(3)— State courts cannot interfere in foreign corporation’s man-, •agement of its internal affairs.</p> <p>State courts have no jurisdiction to interfere by injunction, mandamus, or otherwise in the management of the internal affairs of a for- ] eign corporation, at the suit of a resident 1 stockholder, even though the corporation may maintain,an office and place of business in the state, and may expressly or impliedly agree to submit to the jurisdiction of the court in suits against it.</p> <p>3. Corporations <@=>665(3) — Court cannot compel foreign corporation to issue stock to stockholder of other foreign corporation on theory that there has been a merger in foreign state.</p> <p>The Circuit Court has no jurisdiction in a suit by a resident stockholder of a foreign corporation, required under the laws of the foreign state to keep.its records in such state, to compel other foreign corporation, incorporated in same state, to issue stock in such other corporation to such stockholder, on theory that there has been a merger of the two foreign corporations, since the court cannot exercise visitorial powers and interfere in the internal affairs of the foreign corporations, notwithstanding Code 1907, § 3054.</p> <p>4. Corporations <@=>174 — Stockholder, in assuming the relation, subjects himself to corporate laws of state in which corporation was created.</p> <p>A stockholder in assuming the relation subjects himself to the general corporate laws of the state in which the corporation was created as affecting the corporation’s powers, obligations, and merger or consolidation with other corporations organized under the laws of such state, and is presumed to have contracted with reference to the laws of such state.</p> <p>5. Corporations &wkey;665(3) — Situs of stock for purpose of transfer is in state where corporation is required to keep its registry of transfers, as shown by plea to the jurisdiction in suit to compel issue.</p> <p>The principal situs of stock for the purpose of its transfer on the books is in the state in which the corporation is incorporated, merged, or consolidated, and where it is required under the law to keep its records or registry of transfers, as shown by a plea to the jurisdiction in a suit to compel issue of stock in a foreign corporation to a complainant.</p>

H. Moody, Judge. Contest between E. W. Arendale and Sallie A. Johnson and M. L. Johnson and E. IC Mann as to the appointment of a special administrator. Prom a decree appointing M. L. Johnson and Mann, Arendale and Sallie A. Johnson appeal.

<p>Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.</p> <p>Bill by tbe Ceylon Company against James P. Hawkins, as Tax Collector, etc., to enjoin tbe collection of taxes assessed against tbe capital stock of said corporation. From a decree sustaining demurrers to tbe bill, complainant appeals.</p> <p>The bill attacks the validity of an assessment of all tbe shares of stock of Ceylon Company made by the board of tax adjusters of Jefferson county, the point of the attack being the valuation of all these shares pursuant to section 12 of the Revenue Act (Laws 1919, p. 290), made by the board of tax adjusters instead of by the assessor, as it is provided it shall be made by section 12. and on other grounds that will be referred to in tbe argument. A tax of $2,018.81 was assessed against these shares, and it is charged that, unless restrained, the tax collector will proceed under section 211 of the Revenue Act, and levy on the shares of stock. The shares of stock are owned by 18 different persons, and the equity of the bill is that plaintiff has no adequate remedy at law, and in fact no remedy, to recover said taxes if it pays them, and to avoid a multiplicity of suits.</p> <p>The court erred in sustaining demurrers and denying the injunction. Section 12, p. 290, Acts 1919; subdiv. 9, § 2082, Code 1907; 172 Ala. 242, 55 South. 623; 25 R. C. L.. 1010. Complainant had no other recourse. 162 Ala. 171, 50 South. 394. The bill was also good to prevent multiplicity of suits. 196 Ala. 240, 72 South. 48.</p> <p>The bill was without equity. Sections S3, 85-88, p. 290, Acts 1919. The notice was sufficient, and tbe complainant had his remedy in sections 89 to 180, inclusive, of the Revenue Act. 26 R. C. L. 245; Cooley on Taxation, pp. 59 to 64; 202 Ala. 85, 79 South. 561; 188 Ala. 401, 66 South. 1; 170 Ala. 549, 54 South. 48, Ann. Cas. 1912D, 815; 253 U. S. 325, 40 Sup. Ct. 558, 64 L. Ed. 931. The complainant wholly misconceived the purposes and intentions of section 12 of said act. 118 Ala. 151, 22 South. 627, 72 Am. St. Rep. 143; 160 Ala. 396, 49 South. 404. The taxpayer must resort to his statutory remedy, before availing himself of equity jurisdiction. 59 Ala. 219; 200 Ala. 287, 76 South. 53; 54 Ala. 499; 102 Ala. 556, 15 South. 275; 145 Ala. 159, 41 South. 296, 117 Am. St. Rep. 26; 173 Ala. 209, 55 South. 803; 195 Ala. 572, 71 South. 100. The statute gave the taxpayer his day in court.</p>

C. Brickell, Judge. ; Action by John D. Humphrey against Thomas T. Terry for damages for libel. From an adverse ruling on the pleadings, plaintiff took a nonsuit, and appealed. The libel is based upon the alleged act of the defendant in appending to the public records of the mayor’s court of Huntsville the following statements, falsely and maliciously appended to a judgment entry showing a conviction of the plaintiff for a misdemeanor and a fine.

<p>Appeal from Probate Court, Jefferson County; J. P. Stiles, Judge.</p> <p>Contest of the probate of the will of Lizzie Howard; Laurena Pierson and others being- the proponents, and Richard Bowe, by guardian, and others, being contestants. From a decree admitting' the will to probate contestants appeal.</p> <p>Counsel discuss the errors assigned, with citation of authority; but, in view of the opinion, it is not deemed necessary to here set them out. They cite no authority against the motion to dismiss.</p> <p>The appeal was not taken in time. Section 2S55, Code 1907; 74 Ala. 364. No proper issue was tendered. Sections 2856 and 6196, Code 1907.</p>

Action of ejectment by Sophia Still against A. C. McGuire, as tenant, and defended by E. I. Simon, as landlord. Judgment for the plaintiff, and the defendant appeals.

<p>1. Constitutional law ®=^48 — One attacking statute has burden of proving it unconstitutional.</p> <p>One who attacks the constitutionality of a statute must prove it unconstitutional.</p> <p>2. Constitutional law <&wkey;l4 —• Constitutional provisions asi to life, liberty, and property construed liberally in favor of citizen.</p> <p>Constitutional provisions designed for the security of tbe elementary rights of life, liberty, and property should be construed liberally in favor of the citizen.</p> <p>3. Corporations <&wkey;60 — Corporate “stock” defined. ,</p> <p>Corporate stock is evidence of the right of the bolder or owner to share in the proceeds of the corporation’s property, and typifies an aliquot part of the corporation’s property, or the right to share in its proceeds to extent indicated when distributed according to law and equity.</p> <p>[Ed. Note.' — Eor other definitions, see Words and Phrases, First and Second Series, Stock.]</p> <p>4. Corporations <&wkey;38 — Can change capital stock only in method provided for by statute.</p> <p>A corporation has no implied power to change its capital stock provided for in its charter as originally granted or amended, under Code 1907, § 3446, subd. 4, and can effect such change only by compliance with section 3480.</p> <p>5. Corporations &wkey;>7l, 99(2) — Act authorizing charter amendment to issue nonpar stock held not to violate constitutional prohibition as to issue of stock without consent of two-thirds of stockholders, or except for money, labor done, etc.</p> <p>Acts 1919, p. 699, §§ 2, 3, authorizing corporations to amend charters so as to provide for issuance of stock with no par value in lieu of existing stock with par value held not violative of Const. 1901, § 234, prohibiting a corporation from issuing stock except for money, labor done, or property actually received, or section 237, prohibiting issuance of preferred stock without consent of owners of two-thirds of tbe stock.</p> <p>6. Corporations &wkey;>!97 — Statute providing for amendment of charter so as to restrict voting power of preferred stock held constitutional.</p> <p>Acts 1919, p. 699, §§ 2, 3, authorizing amendment of charter of corporation so as to restrict voting power of preferred stock except as to matters designated in section, and repealing Acts 1909, p. 321, and Code 1907, § 3479, relating to voting rights of stockholders, held constitutional under Const. 1901, § 229, in view of sections 234 and 237.</p> <p>7. Corporations <&wkey;>70 — Charter amendment, providing for issuance of nonpar stock, not a violation of constitutional rights of nonassenting stockholder.</p> <p>Amendment of a charter under Code 1907, § 3462, and Acts 1920, p. 136, providing for issuance of nonpar stock under Acts 1919, p. 698, to existing stockholders in place of existing stock of the par value of $100 on vote of two-thirds of the stockholders, held, not violative of any constitutional right of nonassenting stockholder.</p> <p>8. Corporations i&wkey;>35 — Rule as to commencement of corporate existence stated.</p> <p>If a corporation is created by special charter in present terms not imposing conditions precedent, the corporate existence commences as soon as the act takes effect, and is expressly and impliedly accepted, but if the act requires organization or the performance of conditions precedent, corporate existence commences only when there has been substantial performance.</p> <p>9. Corporations &wkey;>38 — Legislature may authorize amendment of charter in compliance with constitutional and statutory requirements.</p> <p>Under Const. 1901, §§ ¿29, 238, the Legislature may authorize corporators or members to amend the charter or articles in compliance with constitutional and statutory requirements.</p> <p>10. Corporations &wkey;>38 — Statutory requirements as to amendment must be substantially complied with if working material change in nature and purpose of corporation.</p> <p>If proposed amendment works a material change in the nature and purpose of a corporation, the statutory requirement as to amendment musí be substantially complied with, and amendment must be of such character as is authorized by law.</p> <p>11. Constitutional law (&wkey;>l26 — Constitutional provision as to amendment of charter a part of contract of stockholder in corporation organized subsequent to adoption of constitutional provision!</p> <p>Const. 1901, § 229, making the charter of a corporation subject to amendment, alteration,- or repeal under general laws, is a part of the contract of the holder of stock of the corporation organized after the adoption thereof.</p> <p>12. Corporations <&wkey;38 — Filing and recordation of fundamental amendment necessary before corporation may act thereunder.</p> <p>Under Code 1907. § 3448, Acts 1919, p. 698, qnd Acts 1920, p. 136, a corporation cannot act under amendment to charter working a fundamental change, until the change in the charter has been effected by filing and recordation of amendment, but if the change is not fundamental, the formalities are merely directory.</p> <p>13. Corporations &wkey;>38 — Charter amendment to issue nonpar stock to be filed and recorded before acting thereunder.</p> <p>Amendment to charter providing for issuance of nonpar stock to existing stockholders in place of existing stock ¡held a fundamental change, requiring the corporation to file and record the amendment before acting thereunder.</p>

Locke, Judge. Bill by George C. Harris against N. A. Barrett and others, as Commissioners of the City of Birmingham and the Ohief of Police, to enjoin the enforcement of a certain ordinance. From a decree sustaining demurrers to the bill, complainant appeals. The ordinance attacked is as follows: Be it ordained by the board of commissioners of the city of Birmingham, Ala., as follows: Section 1.

I. Jones, Judge. Bill by Martin T. Sumner against Rosemary Bingham, to settle and quiet title to land, and incidentally to construe a will. Prom a decree holding that respondent had no right, title, or interest in said land, respondent appeals. Tile will referred to in the opinion is as follows: In the name of God, Amen.

<p>1. Names &wkey;>!8 — Receipt for express delivered to J. F. P. not proof of delivery to Josie P.</p> <p>In an action for failure to deliver an express package, a receipt purporting to be from J. E. P. was not proof of delivery to Josie P., the consignee.</p> <p>2. Carriers <&wkey;94(3) — Notice to consignee that express was on hand heid contradictory to claim of delivery before notice.</p> <p>A notice sent to a consignee by an express company in January, 1919, that express package was at its office was contradictory of a claim of delivery in October, 1918.</p>

I. Jones, Judge. Petition by A. L. Hasty, County Judge of Marengo County, for a writ of mandamus to the Marengo County Bank, County Depository, to pay certain warrants on the county. Prom a decree sustaining demurrers to the petition, petitioner appeals. Thirty-three warrants were issued and are attached as exhibits to the petition, and show that they were drawn monthly on the last day of each month, beginning on January 31, 1917, and running to September 30, 1919.

F. Hobbs, Judge. Bill by Anna Young and another against J. D. Capíes and others, to enjoin trespass to land and growing crops, by building a road thereon. From a decree granting relief, respondents appeal. The bill is without equity, and will not support an injunction. 204 Ala. 691, 87 South-81; 147 Ala. 280, 41 South. 832; 35 Ala. 601; 51 Ala. 434; 32 Fla. 344, 14 South. 4, 22 L. R„ A. 233, 37 Am. St. Rep. 101.

A. Pearce, Judge. I Bill by Sarah A. Harrison against Mrs. A. E. Sollie and others. Decree for respondents, and complainant appeals. The facts involved in this litigation will be found stated in the opinion and statement of facts in 204 Ala. 522, 86 So. 380, and in the opinion and statement of facts in Sollie et al v. Outlaw et al. (4 Div. 929) post, p.-, 89 South. 561, together with the opinions in this case.

A. Pearce, Judge. Babe Whitehead was convicted of murder in the second degree and he appeals. The pleas in abatement referred to will be found fully set out in the report of the Case of Dan Whitehead, post, p. 399, 90 South. 356.

M. Miller, Judge. Suit by Fairbanks, Morse & Co. against the Town of Camden for sale of certain property or its restoration to complainant and for general relief. From a decree granting the relief prayed, defendant appeals. The duplicate originals were not properly authorized for execution. Section 1183, Code 1907; Acts 1909, p. 205; Acts 1911, p. 632; 45 Ala. 237; 28 Cyc. 664, 686.

Jones, Judge. Grant Cooper was convicted of murder in the first degree, and sentenced to be hanged, and he appealed. The charges requested by and refused to the defendant were: First, the general affirmative charge; second, affirmative charge as to murder in the first degree; third, same as to murder in the second degree; and, fourth, same as to manslaughter.

Bill by Cora P. Little against William L. Little for alimony, temporary and permanent, and for the custody of an infant child. From a decree denying relief, the complainant appeals. Primarily the prayer is for the custody of the infant child born of the marriage, a son 4 years old, with permanent alimony for their maintenance. There is also a prayer for temporary alimony and counsel fees, and for complainant’s provisional enjoyment of the society of the child.

<p>1. Exemptions <§=74 — Claim not allowed in action ex delicto.</p> <p>There can be no claim of exemption, against an execution issued upon a judgment in an action ex delicto.</p> <p>2. Homestead <§=100 — Homestead preserved to widow not exempt as against judgment for tort.</p> <p>The omission of the words “from debts contracted,” in Const. 1901, § 208, preserving exemption of homestead to the widow where decedent leaves no children is without significance on the question of exemption as to a judgment for tort, since the homestead referred to in section 208 is the one previously declared exempt in sections 205 and 208.</p> <p>3. Homestead <§=135 — Statute construed as - not enlarging former exemptions.</p> <p>Code 1907, § 4196, prohibiting the sale of a homestead of a deceased man except under certain circumstances for reinvestment, without the consent of the widow, is not an enlargement of previous homestead exemptions.</p> <p>4. Homestead <@=91 — Statute construed not to change rule -as to exemptions in tort actions.</p> <p>Although in Code 1907, § 4197, the words, “and in no case, and under no circumstances, shall the widow and minor children, or either of them, be deprived of the homestead or two thousand dollars in lieu thereof,” are included for the first time, this provision was not intended to work any change of rule as to allowance of exemptions in judgments founded on torts.</p> <p>5. Homestead <§=91 — Omission of words In revision of statute held not to change the rule as to exemptions in tort actions.</p> <p>In the exémption statute of the Code of 1907, the omission of the words “contracted since the 13th day of July, 1868,” following the word “debt” has no significance as to the exemption of the homestead from levy of execution in a judgment founded on a tort, since the omitted words were originally intended to mark the date of the beginning of the operation of the first exemption statute.</p> <p>6. Judgment <§=801 — Recording of judgment created lien on land and filing of bill held proper procedure after judgment debtor’s death.</p> <p>Where recording of judgments created a lien . under Code 1907, § 4157, during the lifetime of the judgment debtor, the filing of a bill in equity is proper course to enforce the lien after the judgment debtor’s death.</p>

Green, Judge. Will Morton was convicted of robbery, and sentenced to death, and he appeals. The evidence showed that the defendant was in the office of the solicitor, and that the solicitor and three others were present, whereupon the solicitor stated to the defendant that any statement he might make would be used for or against him, as the case might he, and that if, under those circumstances, he desired to make a .statement, he might do so.

Leigh, Judge. Quo warranto by the State of Alabama, on the relation of H. D. Moorer, against Wm. S. Anderson, to prevent the exercise bj' him of the office of County Solicitor. From an order of ouster; respondent appeals. The act relied on by respondent is a general .act, and not unconstitutional. 145 Ala. 128, 40 South. 1016; 153 Ala. 648, 45 South. 175; 195 Ala.

Brickell, Judge. Bill by the Louisville & Nashville Railroad Company against Pearl E. Holmes to enjoin the prosecution of suits in Alabama and Georgia alleged to have grown out of the same accident. Prom a decree- dissolving a temporary injunction dismissing the bill, complainant appeals. The bill has equity and is filed by the proper party. 250 U. S. 135, 39 Sup.

Leigh, Judge. Petition by H. S. Hagood, Tax Assessor, for mandamus to the First National Bank of Evergreen, as depositary for Conecuh County, to compel said depositary to pay warrant drawn under the orders of the commissioners’ court for assistance in the office of the tax assessor. From a decree overruling demurrer setting up unconstitutionality of the act under which warrant was issued, respondent appeals.

<p>Sheriffs and constables <@=>159 — Limitation applicable to motion for summary judgment on bond,‘stated.</p> <p>The limitation applicable to motion under Code 1907, § 5910, for summary judgment against a sheriff and the surety on his official bond for failure to execute a process in garnishment, is that prescribed by sections 4834 and 4835, for motions and other actions against sheriffs and their sureties for nonfeasance in office, ten years for the sheriff, and six years for the surety, and not section 4840, prescribing a limitation of one year for actions qui tam or for a penalty given by statute; section 5900 not preventing a different limitation as to the sheriff and his sureties.</p>

Locke, Judge. Bill by Mary Ann iSnow against the Montesano Land Company and others to redeem land from execution sale. From a decree sustaining demurrers to the bill, complainant appeals. The court erred in sustaining the demurrers. 142 Ala. 590, 39 South. 174. It was not necessary, under the circumstances of this case, to allege a tender of the money to the original purchaser and its vendees. Section 5748, Code 1007; Acts 1911, p. 391.

<p>Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.</p> <p>Bill by-T. S. Turk, individually and as administrator of the estate of Labon Turk, against G. C. Turk and others, to sell lands to pay debts and for division, seeking also to merge this suit with a petition heretofore filed by another heir of Labon Turk to sell said lands, and have both considered together. From a decree sustaining demurrers to the bill, complainants appeal.</p> <p>Administration by an heir desiring it is a matter of right. .29 Ala; 278; 52 Ala. 124. An administrator may sell for division, although there are no debts. Section 262Í, Code 1907. It is the duty of the court to ascertain and enforce the intention of the conveyancer. 65 Ala. 602; 200 Ala. 176, 75 South. 924; 160 Ala. 276, 49 South. 312; 205 Ala. 230, 87 South. 6S4; 200 Ala. 126, 75 South, 574; 18 O. J. 263, note 64. The instrument is a deed. 40 Gyc. 1085; 35 Ala. 628; 68 Aia. 216; 106 Ala. 131, 18 South.. 60. Referring to the partition deed, the instrument is not void for uncertainty, and can in all respects be made certain. 18 C. J. 281; section 3424 et seq., .Code 1907; 143 Ala.. 446, 39 South. 325; 108 Ala. 278, 19 South. 354; IS C. J. 162.</p> <p>The appellant relies upon section 3356, Code 1907, and says that the deed under that section conveyed the legal title to Labon Turk, but the supposed intention of the parties cannot overcome the express terms of the conveyance. 18 C. J. 25A-256; 13 Gyc. 606. A senseless nullity cannot he made by statute a binding conveyance. 73 Ala. 580: 78 Ala. 111.</p>

L. Sowell, Judge. Petition by the Winona Coal Company for mandamus to be directed to E. W. Long, as Judge of Probate of Walker County, requiring him to receive and record certain certificates amending the charter of .the corporation which had been filed with him, but which he had refused to receive. From the order set out in the opinion, the respondent appeals.

L. Longshore, Judge. Quo warranto by tbe State, on tbe relation of Henry W. Pond, to inquire into the right of John W. Batson to hold the office of Register of the Circuit Court for Coosa County. From a decree overruling demurrers of respondent, and ousting him, he appeals. The presiding judge was disqualified to try the case. 61 Ala. 169; 144 Ala. 497, 39 South. 354.

B. Foster, Judge. Action by the J. S. Carroll Mercantile Company against, the Atlantic Coast Line Railroad Company for damages to live stock in transit. Judgment for the plaintiff, and defendant appeals. Transferred from Gouit of Appeals under section 6, Acts 1911, p. 450. The court erred in refusing the charges requested by the defendant. 75 Ala. 596, 51 Am. Rep. 489; 91 Ala. 340, 8 South. 649; 97 Ala. 341, 11 South. 781.

F. Hobbs, Judge. Bill by A. J. Hook against J. J. Horton, S. G. Swain, and the First National Bank of Reform for damages for breach of contract, rescission of deeds and mortgage, and to enjoin the foreclosure of the mortgage. •From a decree sustaining certain demurrers to the bill and dissolving the temporary injunction, complainant appeals, and from a decree overruling demurrers, respondents Horton and others take a cross-appeal.

Jones, Judge. Bill by the Louisville & Nashville Railroad Company against the Alabama Public Service Commission, and the individual members thereof to enjoin the enforcement of an order requiring complainant to furnish telegraphic communications between certain towns in Alabama, and to annul and vacate the order. Prom a decree granting the relief, respondents appeal.

A. Steele, Judge. Unlawful detainer by J. A. White against B. H. Rutledge. From judgment for defendant, plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Verbal notice was sufficient to terminate the tenancy, 190 Ala. 589, 67 South. 284; 96 Ala. 555, 12 South. 397. The court erred in not admitting the written notice. Section 4263, Code 1907. No brief reached the Reporter.

<p>1. Appeal and error @=>356 — No jurisdiction on appeal from decree sustaining demurrer to bill unless taken in 30 days.</p> <p>Unless appeal from decree sustaining demurrer to bill is taken in the 30 days limited by Code 1907, § 2838, as amended by Acts 1915, p. 137, there can be no review of the decree.</p> <p>2. Appeal and error @=>100(2) — Order vacating injunction fiat for noncompiiance with condition not appealable.</p> <p>An order vacating, annulling, and holding for naught an injunction fiat, granted by the judge, because of noncompliance with its condition that complainant give bond, is not one sustaining, dissolving, or discharging an injunction, injunction not having been issued, and so not appealable under Code 1907, § 2839.</p> <p>3. Appeal and error @=>78(3) — Decree held not final for purpose of appeal.</p> <p>Decree, not settling merits of the case or dismissing the bill, but merely sustaining demurrers to the bill, and vacating injunction fiat for noncompliance with condition, is not a final decree, as regards review of merits on appeal.</p> <p>4. Appeal and error @=>339(2)— Special provision as to time for appeal from decree on demurrer not controlled by general provision.</p> <p>The general provision of Acts 1915, p. 711, as amended by Acts 1919, p. 84, fixing six months as time for appeal, does not control the special provision of Code 1907, as amended by Acts 1915, p. 137, fixing a period of 30 days for appeal from decree on demurrer.</p>

A. Pearce, Judge. Bill by Susie Outlaw and others against Mrs. A. E. Sollie and others. • From a decree denying a motion to strike, and overruling demurrers, respondents appeal. The case was here on former appeal, and will be found reported in 204 Ala. 522, 86 South. 380, where a partial history of the case will be found.

<p>1. Judgment <§^3106(1) — Defendant must answer within statutory time, though demanding jury trial.</p> <p>Defendant in law action, by demanding jux-y trial, is not relieved from obligation to plead,' answer, or demur within 30 days from service of process, as required by Code 1907, § 5346, amended by Acts 1915, p. 825, and after such time is in default and subject to judgment, although the next jury session has not yet arrived.</p> <p>2. Appeal and error <@^>901 — If facts warranting default judgment were not existent, bill of exceptions should so show.</p> <p>AVhere the complaint is on an itemized and verified account alleged to be on file, and the appeal is on the record only, and there is nothing to contradict the allegation of the complaint, judgment on the account, with interest, without resort to a writ of inquiry, is expressly authorized by Code 1907, § 3971, and if the conditions prescribed by a statute for judgment by default were not in fact existent, the bill of exceptions should so show.</p>

<p>Appeal from Circuit Court, Pike County; A. B. Foster,.Judge.</p> <p>Bill by Lester Kelley against Verbie Kelley for divorce, with cross-bill by Verbie Kelley, seeking divorce and alimony. From-a decree granting the respondent a divorce on her cross-bill, but without alimony, complainant appeals.</p> <p>The bill alleged that Lester Kelley was compelled to marry Verbie Kelley at the point of a pistol by her father and an uncle, and that as soon as he could he escaped, and had not lived with his wife at all. Cross-bill denies the duress, sets up abandonment, and asks for alimony in support of the wife and a child, alleged to be the child of the-complainant by the respondent.</p> <p>Counsel insist that the bill has equity, and the decree is not authorized by the facts proven, which they discuss at some length, but without citation of authority.</p> <p>No brief came to the Reporter.</p>

Wilkinson, Judge. Bill by Mrs. Monnie Blackburn Moore against J. W. Blackburn'and others to modify a former decree awarding the custody of the child and for the custody of the child. From a decree granting the relief prayed, respondents appeal.

C. Brickell, Judge. Bill by A. P. Howell and others, as simple contract creditors, against the Hartsell Oil & Fertilizer Company and C. O. Jaggers to dissolve a corporation, and for the appointment of a receiver for the collection of the company’s assets and their distribution among the creditors. From a decree overruling the demurrers interposed by Jaggers, he appeals.

L. Brewer, Judge. Action by Luther Lewis against R. E. Taylor for damages for the death of his son caused by being struck by an automobile. Judgment for plaintiff, and defendant appeals.

I. Jones, Judge. Action by Wiley Charlton against the Alabama Great Southern Railroad Company for damages suffered in a collision at a crossing with a train of cars of the defendant. Judgment for the defendant, and the plaintiff appeals.

J. Martin, Judge. Action by W. C. Wilson against Mrs. Susan N. McKleroy, for damages for breach of contract. Judgment for the defendant on the pleading, and plaintiff appeals. Held: and the plaintiff is entitled to a review of the rulings as to both the original and the amended pleading. 184 Ala. 272, 63 South. 567. The contract was not invalid on the ground of public policy. 2 Ala. App. 444, 57 South. 75.

Bill by the State of Alabama on the relation of Joseph R. Tate, as Solicitor of the Tenth Judicial Circuit, against Nora J. Ridge, to abate a nuisance. From an order overruling demurrers to the bill and granting the writ, respondent appeals.

C. Brickell, Judge. Bill by the State of Alabama, on the relation of T. C. Almon, against Walter Carey and others, to condemn an automobile because used in transporting prohibited liquors. From a decree overruling demurrers fo the bill as amended, respondents appeal.

Clair County; O. A. Steele, Judge. Ejectment by Mrs. H. C. Smitbson against J. H. Plandley. Judgment for . the defendant, and plaintiff appeals. The court should not have assumed that there was an agreement, and erred in charging as he did relative thereto. 9 C. J. 234; 24 N.' E. 596; 5 Mete. (Mass.) 478, 39 Am. Dec. 694; 10 Yt. 33, 33 Am. Dec. 172; 12 Wend. (N. Y.) 127, 27 Am. Dee. 120; 4 R. C. L. 131. No brief came to the Reporter.

Application by the State Tax Commission for mandamus, directed to the Tennessee Coal, Iron & Railroad Company and its governing officers, to compel them to submit certain books, papers, and other documents to the State Tax Commission or its duly authorized agents. From a decree sustaining demurrers to the petition, petitioners appeal.

<p>1. Easements <®=>30(I)— Essence of inquiry of abandonment is the intention of the owner.</p> <p>The essence of abandonment of an easement by the owner is his intention.</p> <p>2. Easements <@==>36(3) — Lapse of time and nonuser evidentiary of intention to abandon an easement.</p> <p>In absence of other evidence going to show an intention to abandon a right of easement, mere lapse of time and nonuser will not serve to justify a finding of abandonment, but they are evidentiary of an intention to abandon, and, when considered with other evidence of the intention to abandon, may be entitled to great weight according to the circumstances.</p> <p>3. Telegraphs and telephones 11 — Abandonment of easement in railroad right of way shown.</p> <p>Where an easement for running telegraph lines along a right of way on a railroad was not used for 40 years, and during this time the telegraph company had accepted an exclusive lease of rights for its lines, and had later started condemnation proceedings to take part of the right of way for its lines, the nonuser, coupled with the acceptance of the lease and condemnation proceedings, sufficiently evidence an abandonment of the easement.</p>

W. Harralson, Judge. Quo warranto proceeding by the State, on the relation of W. L. Fox, against A. B. Hooper, Jr. From a decree holding him ineligible to hold the office of jury commissioner, he appeals. The case is not on all fours with that of Johnson v. Craft, 205 Ala. 386, 87 South. 375, but in this case the Legislature did appoint a day for the election. Section 2S4, Const. 1901, and sections 2 and 3 of the act opposing the amendment.

<p>Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.</p> <p>Action by the Western Union Telegraph Company against the Louisville & Nashville Railroad Company. From a decree for defendant, plaintiff appeals.</p>

P. Agee, Judge. Bill by the State of Alabajna, on the relation of J. B. Sanford, against W. E. Clements and one Ford automobile, to condemn said automobile because used ifi illegally transporting prohibited liquors. From a decree for condemnation, defendants appeal. The provisions of Acts 1919, p. 6, does not authorize the conclusion reached in the Merrill Case reported in 203 Ala. 686, 85 South. 28.

A. Pearce, Judge. Bill by Dorothy Carlisle, by next friend, against J. L. Crawford and R. D. Crawford, as executor, and others, to remove and administer the estate in the chancery court, to construe a will, and for other purposes. From the decree rendered, the respondents appeal. - The following is the will, leaving out preliminary matters: “Item 2.

Certiorari tó Court of Appeals. Action by the State of Alabama, on the relation of Harwell G. Davis, Attorney General, against the Crane Company. Judgment for plaintiff was reversed, and the cause was remanded, on appeal, by the Court of Appeals (90 South. 873) and the State, on the relation of the Attorney General, brings certiorari.

Petition by the First National Bank of Montgomery for certiorari to the Court of -Appeals to review and revise a judgment, affirming a judgment for plaintiff in action by Amanda AVilliams against said bank (90 South. 339). Count A was demurrable, and the overruling of the demurrer was not without injury. 202 Ala. 422, 80 South. 806; 126 Ala. 535, 28 South. 517; M. L. & AV. P. Co. v. Tliombs, 204 Ala. 678, S7 South. 205; 165 Ind. 162, 74 N. E. 987, 112 Am. St. Rep. 214, 6 Ann.

Locke, Judge. Bill by Lucile 'Nation against Wesley Nation, her former husband, to set aside and annul a decree of divorce granted by the circuit court of Jefferson county in favor of Wesley Nation on the ground of marital infidelity on the part of the wife, and to have a decree of divorce rendered in her own favor on the ground of statutory cruelty. From a decree overruling demurrers to the bill, defendant appeals.

A. Pearce, Judge. Dan Whitehead was convicted of murder in the first degree and he appeals. The case here is appealed on the record, and the only question presented is as to whether or not the plea in abatement interposed by the defendant is good.

<p>1. Carriers <gc^>7 — May contract in different capacity to perform services which they may refuse to perform.</p> <p>Where a service or act is of such a nature that a common carrier has a right to refuse to perform it, it has a right to contract for the performance thereof, if not ultra vires, in a different capacity from that resting on it as a common carrier.</p> <p>2. Carriers <®=»l 2(7) — Evidence as to reasonable charge and reasonable expense thereof held erroneously excluded in suit to recover back charges for parking showman’s cars.</p> <p>In an action to recover back an amount paid a railroad company by a showman for parking his cars on its tracks for a period of 45 days, where it had filed no schedule of charges for such service with the Railroad Commission, evidence that the charge made was a reasonable charge, and evidence as to the reasonable expense of moving the cars from place to place during 'the 45 days, was erroneously excluded.</p> <p>3. Carriers <g=s>l2(l) — Not required to file schedule of charges in order to recover for parking showman’s cars.</p> <p>Code 1907, § 5522, requiring the schedules of a common carrier filed with the Railroad Commission to contain all charges for track and car service or rental, and for switching, demurrage, terminal, and transfer service, and for rendering any other service in connection with the transportation of passengers and property, refers to such rental and service as are to be performed in its capacity, as a common carrier,, and does not extend to a charge made to a showman for parking his cars on the carrier’s tracks for a period of 45 days, and it is entitled to make such charge, though not contained in its schedules.</p>

E. Gamble, Judge. Action by Carrie K. Currie, doing business as tbe Atmore Milling & Elevator Company, against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. The trial court erred in overruling demurrers to plea Z. 17 Ala.

Application by. the Tennessee Coal, Iron & Railroad Company for certiorari to the Court of Appeals to review and revise the judgment of said court, rendered on the. appeal in Tennessee Coal, Iron & Railroad Company v. Zaek Perolio, 90 South. 875. City lots are exempt from the general rule of subserviency to the natural flowage of unchanneled waters. 72 Ala. 277, 47 Am. Rep. 412; 75 Ala. 91, 51 Am.

<p>1. Statutes <§=»I6I(I)— Later acts repeal by implication former where of same nature and on same subject in the same field of operation.</p> <p>If two acts are of the same nature and on the same subject, the later repeals the former by implication if there is no different field of operation; that is, if it is obvious from the legislative proceedings and purport of the two acts that neither branch of the Legislature conceived a conflict, or entertained any purpose other than their harmonious co-operation within their respective fields.</p> <p>2. Counties <S=>182 — Act relating to bonds held not repealed by subsequent act.</p> <p>Act Oct. 8, 1920 (Gen. Laws Sp. Sess. 1920, p. 116), prescribing the rate of interest on bonds and requiring them to be sold for not less than par with accrued interest, held not to impliedly repeal Act Oct. 6, 1920 (Gen. Laws Sp. Sess. 1920, p. 166), relating to the sale and disposition of bonds in certain counties; the purpose and field of operation of the acts being different.</p> <p>3. Statutes <§=¿109 — What are the requirements as to subject and title stated.</p> <p>Under the requirements of Const. 1901, § 45, as to subject and title of statutes, it does not matter how numerous the subjects stated in the title and however numerous the provisions in the body of the act may be. if they can by fair intendment be considered as falling within the general subject-matter, the act is not in violation of the provision.</p> <p>4. Statutes <§=3|20(4) — County bond act field sufficient as to subject and title.</p> <p>Act Oct. 6, 1920 (Gen. Laws Sp. Sess. 1920, p. 166). relating to the manner of sale of county bonds and to reimbursement of contractors who have advanced money to the county, held not to violate Const. 1901, § 45, relating to subject and title.</p> <p>5. Statutes <§=>4 — What statutes subject to curative acts stated.</p> <p>A statute intended by the Legislature to give legal effect to a past act, contract, conveyance, transaction, or the exercise of power, which is ineffective because of failure of compliance with a necessary requirement, may be validated when the Legislature originally had authority to confer the powers or to authorize the act or transaction, provided the curative statute does not impair vested or contract rights, or validate an unconstitutional statute or proceeding, or take away a cause of action or destroy' an existing defense to a cause of action after suit has been commenced, or revive a right or- remedy barred by time or statute.</p> <p>6. Municipal corporations <§=>72 — Legislature may compel payment of debts not binding, but which are just and supported by moral obligation.</p> <p>As tb ratification or validation of invalid bonds and obligation of financial interest, the general rule is that, though the Legislature cannot compel a municipal corporation to make a mere gratuity, it may compel such body to pay debts not binding in law, but which are just and equitable and supported by moral obligation.</p> <p>7. Statutes <§=263 — Statute not construed to be retroactive unless such intent clearly appears.</p> <p>The courts will not construe an enactment to control or affect past transactions or matters, unless the Legislature expresses a clear and indisputable intention to give it retroactive operation.</p> <p>8. Counties <§=178 — Retroactive statute for sale of bonds at less than their face value and for reimbursement of contractors making advances for differences between market and face vaiue held invalid.</p> <p>Act Oct. 6, 3920 (Gen. Laws Sp. Sess. 1920, p. 166), providing for the sale of county bonds at less than their face value and for reiihbursement of contractors who had advanced to the county the difference between the market and face value of the bonds, violates Const. 1901, § 222, requiring a majority of electors to authorize a bond issue under a general law, in that it changes the material conditions or authority given by an election as to bonds already authorized on different conditions under the general law (Code 1907, §§ 158-174).</p>

Pugh, Judge. Action by S. Pentecost, as administrator of the estate of Pauline Pentecost, deceased, against Richard W. Massey. Judgment for the plaintiff, and defendant appeals. The following is the complaint: “Count 1.

B. Foster, Judge. Jim Thomas and another were convicted of murder in the first degree and sentenced to imprisonment in the penitentiary for life, and they appeal. The man assaulted and killed was Bud Reeves.

Bill by I. O. Anderson and others against Algernon Blair. From a decree dismissing the bill complainants appeal. The equity of the bill has been settled. 202 Ala. 209, SO South. 31. The agreement was not contrary to public policy. 187 App. Div. 774, 175 N. Y. Supp. 881; 147 Fed. 51, 77 O. C. A. 315; 117 Ü. S. 569, 6 Sup. Ct. 870, 29 L. Ed. 940; 118 U. S. 235, 6 Sup. Ct. 1049, 30 L. Ed. 173; 202 Ala. 209, 80 South. 31; 224 Fed. 28, 139 C. C. A. 492 ; 233 U. S. 705, 34 Sup.

<p>1. Carriers &wkey;>196 — Whether a car was delivered at place accessible for unloading pursuant to statute held for the jury.</p> <p>In an action for demurrage for a car remaining unloaded in excess Of the free time allowed by Code 1907, § 5614, whether the car was delivered at a place reasonably accessible for unloading, pursuant to section 5605, held for the jury.</p> <p>2. Trial <&wkey;l 12 — Refusal to permit attorney of railroad company to argue purpose of demurrage charges before jury held not erroneous.</p> <p>In a suit by a railroad company for demurrage charges, refusal of the trial court to permit plaintiff’s attorney to argue the purpose of demurrage charges, while unduly fastidious, was not erroneous.</p>

<p>I. Gifts &wkey;>47(3) — Parent’s gift presumed free from undue influence.</p> <p>Though the relation of parent and child is per se confidential, the law recognizes that gifts and bequests flow naturally from parent to child, and presumes that the parent is the dominant spirit, so that, in the absence of evidence other than the mere voluntary gift and confidential relationship, the presumption is that the transaction was free from undue influence.</p> <p>2. Gifts <&wkey;47(3) — Presumption parent is dominant may be rebutted.</p> <p>The presumption that the parent is the dominant spirit in transactions between parent and child is rebuttable; and, where it is shown that the child, and not the parent, is the dominant spirit, the burden is upon the child to establish the fairness of a gift from the parent to the child.</p> <p>3. Gifts &wkey;>49(2) — Evidence held to- show son was dominant party, and not to establish fairness of gift.</p> <p>Evidence that a gift to a son was made when the mother was past 80 years of age, feeble and bedridden, and that it depleted her estate so as to prevent payment of pecuniary legacies iheld to show that the son, and not the mother, was the dominant spirit in the transaction, and not to sustain the burden thereby placed upon the son of showing the fairness of the gift and its freedom from undue influence.</p> <p>4. Appeal and error <&wkey;843 (2)— Expression of court as to future course to be pursued' not erroneous.</p> <p>In a decree charging an executor with the amount of a gift procured by him by undue influence, and making such amount a lien on the real estate devised to him, a provision that if the amount was not paid within a stated time the court would remove the executor and direct the sale of the property devised to him was merely an expression of the mind of the court as to the course to be pursued iu the future, and. the executor cannot complain thereof on appeal before an attempt is made to pursue that course.</p>

Locke, Judge. Bill by tbe Sixteenth Street Baptist Church, a corporation, against R. A. Blount and others, to enjoin interference with the Church property and prohibit certain parties from governing the Church. From a decree declining to discharge the injunction and overruling pleas in abatement, defendants appeal.

L. Sowell, Judge. Action by A. S. Wilson against R. V. Wind-ham for trespass, trover, and detinue. Judgment for the defendant, and the plaintiff appeals. Wilson brought the suit originally against L. C. and J. W. Coleman for the possession of certain cotton and corn covered by a mortgage executed by the Colemans to Mm on February 15, 1915.

<p>Appeal from Circuit Court, Clarke County; Ben D. Turner, Judge.</p> <p>Attachment by W. H. Miles against Robert J.. Gillespie, with claim by the Gulf Coast Lumber Company to the property attached. Judgment for the plaintiff in attachment, and the claimant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.</p> <p>Counsel discuss the errors assigned, but they cite no authority in support of their contentions.</p> <p>The following authorities demonstrate that the judgment of the lower court was correct. 157 Ala. 91, 47 South. 226; 16 Ala. App. 605, 80 South. 179; 204 Ala. 144, 85 South. 397; 201 Ala. 527, 78 South. 881; 129 Ala. 424, 30 South. 667; 103 Ala. 260, 15 South. 611; 119 Ala. 27, 24 South. 458; 174 Ala. 190, 56 South. 726, L. R. A. 1918B, 924; 134 Ala. 259, 32 South. 664; 17 Ala. App. 233, 84 South. 423.</p>

<p>1. Railroads <&wkey;339( I) — Wanton injury depends on frequency of travel at time of accident.</p> <p>Proof as to frequency of travel over railroad crossing to establish wantonness on the part of trainmen should be limited to testimony as to frequency of travel at the same time of day as the accident, since proof of travel at one time of the day would not necessarily show a populous crossing at some other hour.</p> <p>2. Evidence &wkey;al44 — Testimony as to number of persons using crpssing held admissible, though indefinite.</p> <p>In an action for damage to an automobile struck by a train at a crossing, admission of testimony as to the frequency of travel at the crossing that “there are a good many that cross there going to work” held not error, though indefinite, since opposing attorney could have cross-examined witnesses as to what was meant.</p> <p>3. Evidence <&wkey;492, 568(6) — Nonexpert witness could testify as to,speed of train; objection held to go to weight, rather than competency, of evidence.</p> <p>In action for damage to automobile struck by train at a crossing, a witness who had worked as a section hand for several months, and who had seen trains run all of his life, could testify as to the speed of a train though he was not an expert, and had never worked on trains, and had had no opportunity to’observe the speed of trains, and to form an idea as to how fast they were running; the objection to his testimony going to its weight and sufficiency, and not to its competency.</p> <p>4. Evidence &wkey;>67(4) — Production of ordinance book in use at time of injury held prima facie evidence of existence of ordinance shown therein at such time.</p> <p>The production of an ordinance book in use at time of injury with certificate of city clerk as to enactment of ordinance printed therein, held prima facie evidence of the continued existence of the ordinance at time of the injury under Code 1907, § 1258, as amended by Acts 1911, p. 632, and sections 1259 and 3989, without proof that it had not been repealed prior to the injury.</p> <p>5. Evidence >&wkey;>i8 — Court judicially knows legal per diem payable to witness.</p> <p>The Supreme Court judicially knows that the $4 a day paid to witness was in excess of the legal per diem.</p> <p>6. Witnesses <§^>376 — Defendant could show that amount shown by plaintiff to have been paid witness by him was paid to reimburse him for what he would have earned by regular employment.</p> <p>Where plaintiff had shown by defendant’s witness that defendant had paid witness an amount in e'xcess of the legal per diem, the defendant should have been permitted to show by sueh witness that the amount so paid him merely reimbursed him for what lie would have earned under his regular employment.</p> <p>7. Witnesses <&wkey;267, 287(2) — Court has discretion as to cross-examination but cannot deny to a party the right to explain discrediting facts brought out by opposite side.</p> <p>Trial courts are given considerable discretion as to the cross-examination of witnesses but this discretion does not go to the extent of authorizing a denial to a party of the right to explain discrediting facts brought out by the opposite side.</p> <p>8. Railroads &wkey;s350(7) — Negligence in omitting signals held for jury.</p> <p>In an action for damage to an automobile struck by a train at a crossing, in which the railroad’s evidence showed that the bell was rung and the whistle blown, testimony'of plaintiff’s witnesses that they did not hear the bell nr whistle, though negative evidence, made the question whether the bell was rung -or the whistle blown a question for the jury.</p> <p>9. Railroads &wkey;s350(32) — Proximate cause of automobile driver's injury held for jury.</p> <p>In an action for damage to an automobile struck by a train at a crossing, in which there was evidence that the engine of the automobile choked, and that the automobile stopped dead right on the crossing, and that but for such fact the automobile could have crossed the question of whether plaintiff’s failure to stop, look, and listen before attempting to cross tracks was the proximate cause of the injury held for the jury.</p> <p>10. Railroads • 4&wkey;350(33) — Negligence after discovery of danger held for jury.</p> <p>In an action for damage to an automobile struck by a train at crossing, whether the engineer made every reasonable effort to stop the train after becoming conscious of the danger held for the jury.</p> <p>11. Railroads <&wkey;>350(34) — Wantonness of trainmen held for jury.</p> <p>In an action for damage to an automobile which had stopped dead on the track, in which there was evidence from which it could be inferred that the engineer did not make every reasonable effort to stop the train after discovery of the danger, and that the train approached a populous crossing, without signals, at a high rate of speed, the question of whether trainmen were guilty of wantonness held for the jury.</p> <p>12. Trial &wkey;>253(9) — Special charge precluding recovery if flagman signaled plaintiff to stop and signaled engineer to proceed held properly refused.</p> <p>In action for damage to automobile struck by train at crossing after automobile had stopped dead on track, refusal of special charge precluding recovery if plaintiff failed to stop after being warned to so do by flagman, and if flagman signaled engineer to proceed across track, held not error, in that it pretermitted the engineer’s duty to resort to or use all preventive means to avoid collision after discovery of plaintiff’s car on the track, which, under the evidence, was a question for the jury, and in that it acquitted engineer of wantonness regardless of the rate of speed at which train approached crossing.</p>

A. Pearce, Judge. Action by J. A. Gilmore against Curtis Hayes and another. From a judgment against him, the named defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. It appears from the evidence that plaintiff lived for awhile on the Tudd Hayes place and had the hogs for which the suit was brought on that place; that when he left the place he left the hogs there, and when he went to get them he found them in the pasture of.

<p>Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.</p> <p>Bill by the United States Fidelity & Guaranty Company against A. E. Singleton and others. From a decree sustaining demurrers to the bill, the complainant appeals.</p> <p>Complainant has the right of subrogation, and this can be enforced only in a court of equity. 195 Ala. 506, 70 South. 169; 117 Ala. 348, 23 South. 193; 115 Ala. 682, 22 South. 468; 80 Ala. 547, 2 South. 526, 60 Am. Rep. 124. A junior incumbrancer is not required to pay off prior liens, but may go into equity to have his lien established and enforced, subject to prior incumbrances. 4 Ala. 477; 34 Ala. 95; 65 Ala. 617; 78 Ala. 201; 99 Ala. 607, 12 South. 796; 109 Ala. 430, 20 South. 136; 168 Ala. 404, 53 South. 71.</p> <p>The .British-American Mortgage Company is not a proper party. S6 Ala. 199, 5 South. 298. No right is shown in complainant to compel the senior mortgagee to foreclose its mortgage. 130 Ala. '234, 30 South. 614, 55 L. R. A. 547, 89 Am. St. Rep. 30; 195 Ala. 506, 70 South. 169; 115 Ala. -682, 22 South. 468. Complainant’s remedy is to redeem from prior mortgage. 78 Ala. 203.</p>

J. Curtis, Judge. Byron Leith was convicted of murder in the first degree, sentenced to life imprisonment, and he appealed.

B. Foster, Juclge. Bill by M. O. Galloway against the Southern Investment Company, for the specific performance of a contract to convey land and to enjoin an unlawful detainer suit. Decree overruling demurrers to the bill, and respondent appeals. The bill was defective, and subject to the 'demurrers. 39 Gye. 1336; 13 O. J. 525. Equity- will uphold the forfeiture provisions of the contract. 185 Ala. 71, 64 South. 55; 39 Cyc. 1605.

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwynn, Judge.</p> <p>Petition by the Woodward Iron Company for common-law certiorari to review and revise the decisions and findings in proceedings by Irene Bradford under the Workmen’s Compensation Act against the Woodward Iron Company, in which James Bradford was made a party claimant, or, in the alternative, an appeal from the decision. Appeal dismissed.</p> <p>There is a right of review, either by appeal or by certiorari, and, if reviewed on certiorari, with the evidence set out by bill of exceptions, then the court would decide all questions, including the findings of the trial court, rulings on evidence, etc. Acts 1919, p. 224, §§ 21 and 28; 1 Honnold on Workmen’s Compensation, 835; 128 Minn. 221, 150 N. W. 623; 11 C. J. 205; 132 Minn. 209, 156 N. W. 120; 5 R. C. L. 264; 182 Mich. 564, 148 N. W. 769, L. R. A. 1916B, 474; 181 Iowa, 1052, 165 N. W. 367, L. R. A. 191SB, 627; 282 111. 316, 118 N. E. 767; 179 Cal. 764, 178 Pac. 960, 7 A. L. R. 1291; 84 Wash. 473, 147 Pac. 35; 123 N. E. 28; 186 Iowa, 657, 173 N. W. 23; 180 Cal. 423, 181 Pac. 784; 289 111. 538, 124 N. E. 525; 42 N. D. 599, 174 N. W. 87, 9 A. L. R. 1. This decision is rested on hearsay or improper or insufficient evidence, and should be reversed. Authorities supra. A lump sum settlement cannot be forced under the Alabama Compensation Act. Acts 1919, p. 225, § 23; 1 Honnold on Workmen’s .Compensation, 661; 134 Minn. 16, 158 N. W. 713, L. R. A. 1916F, 95L The court was in error in the amount and way of allowing attorney fee. Authorities supra. Counsel discuss the marriage, with the insistence that Irene Bradford was not the wile of the deceased, and therefore not entitled to anything.</p> <p>The only way to review is by certiorari, and such limitation is not unconstitutional. Section 140, Const. 1901; 176 Ala. 631, 58 South. 315 ; 48 Ala. 412. The conclusions on matters of fact and the admission of evidence will not be reviewed by certiorari. 196 Ala. 655, 72 South. 259. That remedy is excluded here. 1 Honnold, Workmen’s Compensation, 242; 38 R. I. 145, 94 Atl. 717; 128 Minn. 221, 150 N. W. 623. This statute expressly provides, in section 7, t'hat the court may fix the fee for the attorney and the manner of its payment. Counsel discuss other matters not necessary to be here set out.</p>

A. Pearce, Judge. Bill by M. E. Strickland against C. G. Strickland and the Bank of Gordon to cancel a deed and mortgage or in the alternative to cancel the deed and redeem from the mortgage. From a decree overruling demurrers to the bill, respondents appeal. The bill alleges the execution to C. G. Strickland by M. E. Strickland on August 31, 1917, of a warranty deed to 80 acres of land for an express consideration of $1,000.

S. Williams, Judge. The estate of George H. Dent was removed by one of tbe heirs from the probate to the circuit court, the bill praying that certain real estate be sold for distribution.

Leigh, Judge. • Bill by Alfred C. Steenberg, as trustee, against Charlotte S. Myers and her husband to foreclose a mortgage or deed of trust. Decree for complainant, and respondent, Charlotte S. Myers, appeals. There is no debt and the mortgage is wholly'void under the facts in this case; but, should the court not take that view of the case, then it is apparent from the fact that the husband is the principal obligor and the wife is surety.

E. Gamble, Judge. Bill by Celia Smith and others against E. M. Rhodes and others, in which a cross-bill was filed. Erom a decree overruling demurrers to the cross-bill, complainants appeal. The cross-bill was multifarious. 147 Ala. 239, 41 South. 474; 149 Ala. 71, 43 South. 352; 182 Ala. 266, 62 South. 96. The cross-bill introduces a change of parties. 165 Ala. 189, 51 South. 757; 104 Ala. 599, 16 South. 527; sections 3129, 3130, Code 1907; 132 Ala. 148, 31 South. 469.

A. Steele, Judge. • The Farmers’ Savings Bank brought detinue against one Luther Bailey for certain property, and Farrell & Blanton, a partnership, interposed claim thereto. There was judgment for plaintiff, and claimants appeal. Transferred from Court of Appeals under Acts 1911, ,p. 449, § 6.

<p>1. Cancellation of instruments &wkey;o43 — Allegata and probata as to description of lot must correspond.</p> <p>In an action to cancel a deed to lot 7 as a cloud upon title and because obtained by fraud in that defendant represented that the deed was an option to purchase, plaintiff could not recover where his testimony referred to lot 5, instead of lot 7, as averred.</p> <p>2. Appeal and error 1009 (6) — Evidence to be weighed on appeal in equity.</p> <p>Where the evidence in an equity case is taken by depositions, and not ore tenus, no weight will be given the decision of the trial judge upon the facts on review in the Supreme Court, under Code 1907, § 5935.</p> <p>3. Deeds <@=>211(3) — Evidence held to show deed not obtained by fraud.</p> <p>In an action to set aside a deed as a cloud upon title, evidence held to show that the deed was not obtained by fraud.</p> <p>4. Reformation of instruments <&wkey;16 — Equity will make instrument conform to agreement.</p> <p>When a written instrument or deed does not recite the exact agreement by mutual mistake, or by mistake of one party accompanied by fraud of the other party, and the contract is shown by clear, strong, and convincing proof, a court of equity will make the written instrument or deed conform to the agreement.</p> <p>5. Appeal and error <&wkey;I72(3)~No reformation in action for cancellation.</p> <p>Where bill was to cancel a deed, and there was nothing in the pleadings to indicate a desire on the part of the complainant to reform the deed, appellate court should not put the court below in error and the defendant in default, simply because of a prayer for general relief, by reforming the instrument.</p> <p>6. Joint adventures <&wkey;4( I) — Plaintiff and defendant held to each have interest in land under deed.</p> <p>Where complainant and defendant entered into an agreement whereby complainant deeded a lot to defendant and received $5 consideration, and defendant agreed to perfect the title and to sell the lot and divide the net proceeds with the eomxfiainant, each of the parties had some interest in the lot, and the complainant cannot insist that the deed should he canceled because defendant has had more than a reasonable time to sell the lot after perfecting title.</p>

<p>Appeal and error t&wkey;544(2), 699(2) — In absence from record of bill of exceptions and oral charge, refusal to give requested charges is not ground for reversal.</p> <p>Under Code 1907, § 5364, as amended by Acts 1915, p. 815, providing that a general charge should be in writing or be taken down by the court reporter, where there is no bill of exceptions, and the court’s oral charge is not set out in the record, reversible error cannot be affirmed on court’s refusal of requested charges.</p>

Ivyle, Judge. Assumpsit by A. O. Smith and 'another against J. A. Marcrum, as administrator. Transferred from Court of Appeals, under section 6, Acts 191.1, p. 449. Judgment for plaintiffs, and defendant appeals.

Wilkinson, Judge. Bill by Lovick AV. Phillips against the Birmingham Industrial Company to set aside a foreclosure or for an accounting and redemption from foreclosure. Prom a decree for complainant, respondent appeals.

O. Chenault, Special Judge. Action by W. F. McGuire against the H. & L. M. Warten Cotton Company, a partnership, for damages for breach of • contract. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

<p>1. Brokers <&wkey;57(2)— Broker held not entitled to a commission on trade of an Interest in lots listed made by the owner independently on different terms.</p> <p>Where the owner of lots listed with a broker for sale at a fixed price agreed conditionally with a purchaser procured to trade the lots for an automobile as a satisfactory equivalent, and then by mutual consent they withdraw therefrom, and thereafter, on discovering that be had only a one-fifth interest in the lots, they traded automobiles, the owner conveying his interest in the lots to boot, the broker, having nothing to do with the last-mentioned trade, which was entirely separate from the first, was not entitled to a commission since the contract was not performed according to its terms, and, the broker having no exclusive right in the premises, the owner had the right, without reference to him or his claim, to deal in good faith with bis property on terms not involving an appropriation of what the broker did.</p> <p>2. Brokers <&wkey;57(2)— Principal answerahle in quantum meruit if, accepting benefit of broker’s services, he continues negotiation but consummates radically different trade.</p> <p>If a principal without boua fide interruption continues a negotiation in the way of which he has been put by a broker, and thus accepts the benefits of the broker’s services, but consummated a trade radically different from that contemplated by the parties, he is answerable to the broker in a quantum meruit.</p> <p>3. Brokers &wkey;384(l) — Burden on broker to establish value of services on basis of quantum meruit.</p> <p>Where a principal is answerable to a broker in quantum meruit, the broker as a condition to recovery has the burden of proving the amount of compensation reasonably deserved by him for Ms labor.</p> <p>4. Brokers <©=386(8) — Contract contemplating comp<ensation for a definite service not evidence of value of service actually rendered to principal negotiating a different trade from that contemplated.</p> <p>A contract with a broker to pay a fixed commission for a certain definite service is not sufficient evidence of the value of the services actually rendered by a broker where the principal continues negotiations and arrives at a trade radically different from that contemplated.</p>

B. Foster, Judge. Suit by J. E. Henderson against Lizzie Wilson, relative to the title to certain land, out of which grew a decree of sale. From the decree confirming the register’s report of sale, Lizzie Wilson appealed. The court will review the report of the register, without presumption of the correctness of the finding in the lower court. 105 Ala. 240, 16 South. 720.

Leigh, Judge. Suit by Anna L. Demming against Mary E. Etheridge to foreclose a mortgage, with cross-bill by Mary E. Etheridge setting up payment of the mortgage and asking to redeem from a mortgage to Francis G. Caffey. From a decree foreclosing both mortgages, defendant Etheridge appeals.

<p>1. Fraudulent conveyances &wkey;>277(3), 278(2) —Wife has burden of showing good faith and of establishing consideration! for conveyance to her by insolvent husband.</p> <p>In a suit to set aside a conveyance by an insolvent husband to his wife, the burden is on respondents to overcome clearly and specifically the presumption of bad faith and to show a valuable consideration for the conveyance.</p> <p>2. Evidence <&wkey;80(2)— Common law presumed to prevail in other state.</p> <p>The common law is presumed to have prevailed in another state where the contract in suit was made, in the absence of any evidence to the contrary.</p> <p>3. Fraudulent conveyances <&wkey;95(9) — Husband and wife <&wkey;IO(5), 47(3) — Proceeds of wife?s realty passed to husband at common law, and therefore not consideration for conveyance by husband to wife.</p> <p>At common law the right and title to personal property of a wife passed to the husband, and the proceeds of the sale of the wife’s realty made with the husband’s assent constituted personal property unless different status therefor was defined by settlement or contract directing its further use, so that the use of such proceeds by the husband was not consideration for his conveyance to the wife.</p> <p>4. Fraudulent conveyances <&wkey;95 (8) — Prenuptial promise held not consideration for post-nuptial conveyance.</p> <p>A promise made before marriage to repay to a wife the sums advanced by her to the husband out of the estate of the husband’s fa- ' ther, who was then alive, which was not shown to have been based at all on the consideration of marriage, and was not reduced to writing, and under which only small advances were made, was not a consideration sufficient to support a conveyance by the husband, who was insolvent, of property derived from his father’s estate to reimburse her for transferring to her husband substantially all her property after the marriage.</p> <p>5. Descent and distribution <@=72 — Fraudulent conveyances &wkey;>77 — Release of beneficiary’s interest held supported by consideration!.</p> <p>Where the beneficiary of an undivided one-fifth interest in an estate, which interest was worth not above $5,000, released or transferred his interest to' the executrix in exchange for $1,'700 cash, a good note for $1,600, and a cancellation of his indebtedness of $1,000 to the estate, the release or transfer was supported by adequate consideration and was valid, so that a creditor of the beneficiary could not set aside, that transfer and a subsequent transfer by the executrix and the beneficiary to the beneficiary’s. wife.</p>

E. Gamble, Judge. Action by H. D. Finlay against Vinson Bros, and others. Frcpn judgment for plaintiff, defendants appeal. The defendants were entitled to the affirmative charge under the evidence in this case. 188 Ala. 389, 66 South. 460; 16 Ala. App. 649, 81 South. 141; 4 Ala. App. 603, 58 South. 789; 156 Ala. 341, 47 South. 280, 19 L. R. A. (N. S.) 910, 130^ Am. St. Rep. 102; 1 Ala.

<p>1. Evidence <&wkey;44l(5) — Contemporaneous parol agreement inadmissible to vary writing.</p> <p>Where mortgage was unambiguous, court did not err in rejecting evidence offered by the mortgagor of a contemporaneous parol agreement, made at the time the mortgage was executed, and not carried therein, that it was to draw interest from the date' of' its execution, and not from date of maturity as therein written.</p> <p>2. Payment <&wkey;85(4) — When overpayment may be recovered.</p> <p>In order to prevent a party to a contract from recovering from overpayment of moneys, he must have overpaid with full -knowledge of all the material facts, and an overpayment of interest by mistake of fact on a note can be .recovered, though maker had means of knowing the fact®.</p> <p>3. Payment <@=»85(4) — Overpayment of interest on mortgage held not recoverable; “mistake of fact.”</p> <p>Where mortgagor knew that mortgage was written for $1,000 due January 1, 1919, but erroneously supposed that its proper construction imposed upon him the payment of interest from date of execution, and by reason of this construction made an overpayment of interest, he is not entitled to recover the overpayment, since it was made under mistake of law, and not by reason of mistake of fact, a mistake of fact existing when some existing fact is unknown or a supposed fact does not exist, such as the terms of the instrument and calculation of interest made thereon.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Mistake of Fact.]</p> <p>4. Payment <&wkey;89(5)— Burden of proof.on defendant to establish counterclaim for overpayment by mistake.</p> <p>In an action by mortgagee to recover certain expenses and interest claimed to be due on a mortgage, the burden of proof was on defendant under a plea of recoupment to establish a counterclaim based on an alleged overpayment of interest by mistake of fact.</p>

K. McMorris, Judge. Action by the Virginia-Carolina Chemical Company, a corporation, against G. W. & C. T. Cherry on the common counts. Judgment for the plaintiff, and the defendants appeal. Transferred from the Court of Appeals under section 6 of the Acts of 1911, p. 450.

Merrill, Special Judge. Suit by the Alabama Mineral Land Company against G. G. Burkhalter. Decree for complainant, and respondent appeals. Counsel agree that the only disputed question was whether the possession of complainant was peaceful and quiet, or whether it was an uncertain, scrambling possession. Complainant must be in possession. Sections 5443, 5444, Code 1907.

<p>Appeal from Circuit Court, Blount County; Woodson J. Martin, Judge.</p> <p>Bill by J. Wash Shelton against Susie May Shelton for divorce, and bill by Susie May Shelton against J. Wash Shelton and another for divorce, alimony, and other purposes. Prom a decree denying relief to J. Wash Shelton under his bill, and granting relief to Susie May Sbelton under her bill, J. Wash Shelton appeals.</p> <p>The court erred in granting alimony in gross, without making it the duty of the wife to support the children. 49 South. 998: 9 R. C. L. 296; 132 Ga. 712, 64 S. E. 1092, 131 Am. St. Rep. 229. The amount allowed is greatly excessive. 113 Ala. 319, 21 South. 34; 36 Ala. 391; 44 Ala. 447; 196 Ala. 167, 71 South. 661; 54 Colo. 57, 129 Pac. 226, 44 L.’ R. A. (N. S.) 998. The alimony should have been kept under the control of the court. 203 Ala. 167, 82 South. 417; 200 Ala. 489, 76 South. 431; 199 Ala. 228, 74 South. 338. Attorney’s fees were not allowed as a matter of right. 198 Ala. 225, 73 South. 473.</p> <p>Permanent alimony may be awarded in gross. 185 Ala. 86, 64 South. 96; section 3805, Code. 1907; 36 Ala. 391; 2Q3 Ala. 167, 82 South. 417; 19 C. J. 264; 183 Ala. 659, 62 South. 775. The wife was entitled to reasonable counsel fee. 201 Ala. 519, 78 South. 873; 195 Ala. 608, 71 South. 413; 71 South. 601.</p>

<p>Sunday <&wkey;12— Lessor could recover for use and occupancy, though consent to assumption of lease by lessees assignee was given on Sunday.</p> <p>That lessor’s consent to assumption of lease by lessee’s assignee was given on Sunday did not preclude lessor from recovering from assignee for use and occupancy of premises, notwithstanding Code 1907, § 3246, making Sunday contracts, with certain exceptions, void.</p>

E. Gamble, Judge. Petition by the W. T. Smith Lumber Company for a common-law writ of certiorari to review the action of the circuit court of Butler county in a proceeding by H. IT. Burkett to recover from said Lumber Coxupany under the Workmen’s Compensation Act for damages for the death of plaintiff’s son.

A. Steele, Judge.' Action by J. E. Stallings against H. J. Savage, doing business as the Etowah Motor Company, for damages for a breach of an agreement to equip an automobile. Judgment for the defendant, and the plaintiff appeals. Transferred front Court of Appeals under section 6, p. 450, Acts 1911.

Evins, Judge. Action by Mrs'. Emma Mae McGhee, as administratrix, against the Birmingham News Company for damages for the death of her intestate, her husband. Judgment for the defendant, and the plaintiff appeals. Plaintiff’s intestate was run over by a motor truck operated by the defendant in its business and suffered injuries which caused his death. The complaint was laid in four counts.

C. B. Gwin, Judge. Application by Sallie Steagall for compensation under the Workmen’s Compensation Act, for the death of her husband, Alpha Steagall, while in the employ of the SlossSheffield Steel & Iron Company. From the amount awarded, and judgment thereon rendered, Sallie Steagall appeals. ■The defendant’s answer was subject to the demurrers interposed. 103 Ala. 497, 15 South. 741;- 41 Ala. 310; (Ala. Sup.) 31 South/ 109; Gen. Acts 1919, p. 228.

J. Martin, Judge. Bill by Rena Griffin and another against Jerry Griffin. Decree for plaintiffs, and defendant appeals. The bill charges that the complainants are respectively the widow and minor child of J. M. E. Griffin, who died intestate in Etowah county, leaving no property other than that herein described, and that complainants are his sole heirs at law, that there are no debts, and that no administration has been had on the estate.

L. Longshore, Judge. Bill by IV. F. Saxon against G. B. Parson to enjoin the violation of a contract. From a decree dissolving temporary injunction, complainant appeals. The following is the contract referred to in the opinion: “State of Alabama, Olay County. “Know all men by these presents that this contract made and entered into on this day by and between IV.

Greene, Judge. Bill by Mrs. B. P. Davidson against J. F. Davidson for review of decree denying complainant divorce and alimony. From a decree denying relief the complainant appeals. The evidence raised ‘the presumption of a valid common-law marriage between the parties. 175 Ala. 532, 57 South. 714; 201 Ala. 482, 78 South. 388; 119 Ala. 627, 24 South. 374; 159 Ala. 254, 48 South. 713; 50 La. Ann. 587, 23 South. 540; 18 It. O. L. 429.

<p>1. United States <&wkey;l25 — Conditions governing bringing suit against sovereign stated.</p> <p>A sovereign may prescribe' tbe terms on which the right to be sued is granted, and the maimer in which the suit shall be conducted, and modify such conditions or consent, or withdraw the same whenever it' is supposed that justice to the public requires.</p> <p>2. Evidence <&wkey;20(2), 34, 45, 46 — Judicial knowledge taken of federal statutes, President’s proclamations^ appointment of and orders by Director General of Railroads, and of governmental control.</p> <p>Courts take judicial knowledge of federal statutes having application, the President’s proclamations, the appointment of and orders by the Director General of Railroads, the President’s designation of an agent against whom suits might be brought within two years from the date of the passage of act putting carriers under federal control, and that government had control of, and was operating, pursuant to law, the transportation facilities and properties of railroads September 15, 1918.</p> <p>3. Evidence <&wkey;>52 — Pleading <&wkey;>6 — Facts judicially known need not be pleaded or proved.</p> <p>Facts judicially known need not be pleaded or proved.</p> <p>4. Railroads <&wkey;5!/2, New, vol. 6A Key-No. Series — Venue of suit for injuries during federal control held improper.</p> <p>Under General Orders 18-A and 26, regulating venue of suits against carriers under federal control, held error to sustain a demurrer to a plea in abatement in a suit against a railroad company for personal injuries showing that it was begun in a county other than that in which the plaintiff resided and in- which the injury occurred.</p> <p>5. Railroads <&wkey;>5'/a, New, vol. 6A Key-No. Series — Company not suable for injuries during government control.</p> <p>A suit against a railroad company for personal injuries received during federal control, terminated by Transportation Act of February 28, 1920, held subject to dismissal as to the company.</p> <p>6. Railroads <&wkey;5,i/2, New, vol. 6A Key-No. Series-Substitution of federal agent as defendant held properly refused.</p> <p>In a suit for personal injuries sustained during federal control, brought against a railroad company before the termination of federal control by Transportation Act of February 28, 1920, defendant cannot complain that it was error "to refuse to permit the agent designated by the President under section 206 of the act to be substituted as defendant after the termination of federal control.</p> <p>7. Railroads &wkey;>5,|/2, New, voi. 6A Key-No. Series-Government party defendant in suit for injuries arising under federal control.</p> <p>In a suit for .personal -injuries sustained during federal control brought against a railroad company before the termination of federal control by the Transportation Act of February 28, 1920, failure to make the government a party defendant was error.</p> <p>8. Appeal andl error <&wkey;435 — Failure to serve summons on codefendant held not to invalidate appeal, in view of appearance of codefendant.</p> <p>Under act of April 21, 1911 (Law's 1911, p. 589), providing for an appeal by a party defendant without taking it in the name of co-defendants by serving summons on the non-appealing party to appear and unite in the appeal, where a carrier appealed from a judgment .and.had a citation of the appeal left with plaintiff’s attorneys of record, but the summons of appeal was not served upon its eodefehdant, an indorsement in the transcript that the codefendant appealed and adopted the assignments of error made by the appealing defendant cured the defect, if any.</p>

L. Longshore, Judge. Suit by A. E. Hester against R. G. Rowland and others. From a decree overruling demurrers to the bill, respondents appeal. The bill is as follows (omitting the description of the parties): (2) That J. W. Hester is a son of oratrix.

B. Foster, Judge. Action by C. T. Davidson and others against the Alabama Power Company. Judgment for plaintiffs, and defendant appeals. Count A appears in the former report of this case. 203 Ala. 77, 82 So. 91.

Wilkinson, Judge. Action by Varnéll T. Brown against Jeff M. Yielding and others. Judgment for defendants, and plaintiff appeals. The counts were for simple negligence and for wanton- injury by running an automobile against plaintiff in a public street in the city of Birmingham. The main facts of the case are that plaintiff was standing on the street with one foot on the running board of a stationary car, engaged in conversation with the occupants of the car.

P. Agee, Judge. Action by A. H. Arnold against the Alabama Power Company for damages for cutting- his lights off. From adverse rulings on the complaint, plaintiff takes nonsuit and appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450. The following is the complaint: “Count 1.

P. Agee, Judge. Bill by J. M. Steverson against George R. Burton for an injunction to restrain cutting, boxing, or otherwise interfering with standing timber, to reform contract and for other relief. Erom a decree overruling demurrers to the amended bill, defendant appeals.

Foster, Judge. Action by T. N. Ryan against the Western Union Telegraph Company for damages for negligence or failure to deliver a telegram. Juclgment for plaintiff, and the defendant appeals. Transferred from Court of Appeals uuder section 6, Acts 1911, p. 449.

<p>1. Appeal and error <&wkey;76(l) — Test of finality of judgment to support appeal stated.</p> <p>The test of finality of a judgment to support an appeal is not whether the cause remains in fieri awaiting further proceedings to entitle- the parties to their acquired rights, but whether the judgment ascertains and declares such rights embracing the substantial merits of the controversy and the material issues litigated or necessarily involved.</p> <p>2. Appeal and error &wkey;>77(2) — Denial of petition to set aside estate to petitioner as deceased’s widow is a “final decree.”</p> <p>A denial of a petition to set apart a decedent’s estate to petitioner as his widow is a final decree as to her within Code 1907, § 2837, the effect thereof being to determine that she was not deceased’s widow.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, Ifirst and Second Series, Pinal Decree or Judgment.]</p> <p>3. Appeal and error <&wkey;l008(l), 1009(1) — Judgment of court before whom testimony is taken orally has weight of verdict.</p> <p>Where testimony is taken orally before the court as prescribed by Acts 1915, p. 705, whether in equity or at law, the court’s judgment or decree has the weight of a jury’s verdict, and will not be disturbed unless plainly erroneous.</p> <p>4. Marriage c&wkey; 13 — Essentials of “common-law marriage” stated.</p> <p>To constitute a common-law marriage it is sufficient that there be a mutual consent to be husband and wife, followed by cohabitation as such, without regard to what the parties consider the legal effect of such relation.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Common-Law Marriage.]</p> <p>5. Marriage &wkey;?54 — Common-law husband’s abandonment of wife and attempt to marry another held not to destroy former marriage.</p> <p>That a common-law husband abandoned the relation and attempted to contract marriage with another, and they mutually agreed to be husband and wife and cohabited together for many years, did not destroy the former valid common-law marriage; the parties thereto not being free to marry others without a divorce.</p>

<p>1. Master and servant &wkey;>259(7) — Count held demurrable for failing to allege unnamed fellow servant was within employment and name was unknown.</p> <p>A count, seeking to recover for the death of a railroad car repairer, which alleged that the injuries to plaintiff’s intestate were caused by the negligence of an unnamed employee of defendant company in failing to give warning before moving the cars on the repair track, was demurrable for failing to allege that the name of such employee was unknown, and that he was acting in the scope of his employment when he committed the negligent acts alleged.</p> <p>2. Master and servant <&wkey;202 — -Injury by moving cars in obedience to signal held not wanton.</p> <p>The engineer in charge of an engine which moved cars upon a repair track without warning to those who might be working .upon or passing between them is not chargeable with wantonly injuring a car repairer, where he moved the cars in obedience to a signal given him, and there was no evidence that he could refuse to heed or obey such signal.</p> <p>3. Negligence <&wkey;>II — Wanton injury implies knowledge or reckless indifference.</p> <p>Willful or wanton misconduct cannot be imputed to a person unless he has knowledge at least that his act will inflict injury, or is recklessly indifferent to the consequences of a known relation between his act or omission and the peril of the injured person.</p> <p>4. Master and servant <&wkey;287(4) — Wanton injury by signalman held question for jury.</p> <p>Where the allegations of a count, charging that plaintiff’s intestate was killed by being crushed between two cars on the repair track, which were moved together without any warning being given, as was required by general custom before such cars were moved, and that the movement resulted from the willful and wanton recklessness of the employee who gave the signal to move the cars without warning, wore. sustained by evidence, the question of wanton injury was one which should have been submitted to the jury, so that a directed verdict on the ground of contributory negligence was improper.</p> <p>5. Master and servant &wkey;>236(!5) — Stop, look, and listen rule inapplicable to railroad employees.</p> <p>The duty to stop, look, and listen before crossing the railroad track does not apply to shop employees of a railroad company, whose duties required them to work about and under the cars on the repair track.</p> <p>6. Master and servant <&wkey;289 (26) — Contributory negligence in going between cars on repair track held for jury.</p> <p>A railroad car repairer may rely upon a-general custom to give warning to those working about the cars on a repair track before such cars are moved, so that he is not chargeable with contributory negligence as a matter of law in going between the ears' on such track at a time when no warning had been given.</p>

W. Ilarralson, Judge. Action by the Bank of East Chattanooga against O. W. Clayton. Judgment for' defendant, -.and plaintiff appeals. Action was on negotiable promissory note executed by O. W. Clayton, payable to his own order, and contemporaneously indorsed by him to the Southern Pharmaceutical Company, by whom it was in turn indorsed to the plaintiff bank.

<p>Appeal from Circuit Court, De Kalb County; W. W. Harralson, Judge.</p> <p>Ejectment by John F. Cooper and: others against Joseph Cooper and others. Judgment for the plaintiffs for part of the land, and for the defendants for part of the land, and plaintiffs appeal.</p> <p>William Cooper owned about 200 acres of land in DeKalb county, and died leaving a wife, but no children. About a year later the wife died, and the land descended to the eight brothers and sisters, five of whom were living and the other three being dead, but leaving heirs. The plaintiffs are the heirs and children of Francis Cooper,, who died in 1915. It seems from the record that J. H. Cooper and W. K. Cooper procured power of attorney from all the heirs in the latter part of 1910 to sell the land, Joseph Cooper in his power of attorney by restricting the' sale of the land to a sum not less than $1,-600, unless it was sold to all the legal heirs jointly. The land was put up and advertised for sale, and Joseph Cooper bought the land, but the Coopers, holding the power of attorney, refused to deliver the deed after making it, and sold the land to Francis Cooper at a private sale in 1913. Francis Cooper’s heirs, or plaintiffs, are claiming under the private sale, while the defendants are claiming under the first sale.</p> <p>The objection to the introduction of the deed from Mrs. Cheney to Joseph Cooper should have been sustained. 31 Cyc. 1304, 1305, 1039; 219 Pa. 113, 67 Atl. 999; 122 Mass. 484. The deed from J. A. Cooper to Joseph Cooper should not have been admitted in evidence. 202 Ala. 477, 80 South. 861; 125 Ga. 153, -53 S. E. 1008; 6 ICy. Law Rep. 657. Francis Cooper was within the limitation of the power of attorney. 9 Cyc. 586; 39 Ala. 461; 26 Ala. 272. Francis Cooper was a liona fide purchaser, without knowledge of the revocation. 202 Ala. 477, 80 South. 861; 135 Ala. 622, 33 South. 832, and authorities supra.</p> <p>The defendants attempt to cross-assign errors,'and on this base their argument; but they cite no authority.</p>

<p>Appeal from Probate Court, Jackson County; A. H. Moody, Judge.</p> <p>Petition by Lowe Johnson and E. K. Mann to iirobate the will of J. F. Washington, deceased, with contest by Sallie Johnson and others. From a decree admitting the will to probate, contestants appeal.</p> <p>The following are the grounds of the contest to which demurrers were sustained:</p> <p>'(4) The signing- of said instrument, by said J. P. Washington, and purporting to be his last will and testament, was procured through the undue- influence of persons adversely interested to the contestants herein (naming them).</p> <p>(5) The said instrument purporting to be the last will and testament of the said J. F. Washington was procured through the undue influence of persons interested in the beneficiaries named in the said will, and adversely to the contestants herein.</p> <p>The contestants offered to show that Billy and J. F. Washington were in business «p.t the time Billy Washington died, and that J. P. Washington became his administrator and acquired his estate or a considerable portion thereof. Dr. McQuillen testified that he was an expert in mental diseases, and contestants offered to show by him that from a medical standpoint it would be erratic to leave out- collateral kin, and that the medical profession regard it as erratic to give property to illegitimate children as against collateral kin.</p> <p>The following charges were refused to the contestants:</p> <p>(1) If the jury find from the evidence that the said Washington had a syphilitic disease of a number of years’ standing which would im-" pair his health and could destroy Ms mind, and that such disease had made inroads on his health and mind, then the jury may determine whether the said Washington had really the capacity to make a will.</p> <p>(10) If the jury believe from the evidence that the paper propounded as tlie last will of J. P. Washington was written by E. K. Mann, one of the executors named therein, and that ho was active in procuring the execution thereof, naming himself as one of the executors, and that at the time, and for a long time theretofore, there had existed confidential relations between Washington and said E. K. Mann, by reason of which confidential relation said E. K. Mann had influence over the said J. P. Washington; that at the time of the writing of the will the said E. K. Mann was the manager of the Tennessee Valley Bank at Stevenson, Ala., which bank was largely tlie depository of the funds of the estate, which is a large estate of personal property; that the instrument thus written by the said E. K. Mann gives to him and his joint executors the possession and management of this large estate for a period of years, after the death of testator, then, and under these circumstances, the law raises the presumption that the instrument thus written was the result of undue influence exercised by the said E. IC. Mann and casts upon the proponents of the will the burden' of proving, by evidence satisfactory to tlie jury, that the instrument speaks the intention of said Washington, as Ms last will, and of showing a severance of the relation and the interposition of competent and independent advice before the final execution of the will.</p> <p>. (14) If the jury find from the evidence that E. K. Mann is named in the instrument offered for probate as one of the executors, and that he on the settlement of the estate would receive large compensation for Ms services as such executor; that he copied the instrument from a will written a number of years before and certain provisions therein, which already had been accomplished and could not thereafter be a matter of consideration; and that he called upon the persons witnessing the will to come into the rear room of the bank when he and the deceased and the two witnesses alone were present and no ■ one else knew of the transaction — the law would presume that said instrument now offered for probate was signed through the undue influence of the said E. K. Mann.</p> <p>(16) If the jury find from the evidence that E. IC Mann, one of the proponents of the instrument now offered for probate, and who wrote the same, and is named as an executor therein, and that by the terms of, said instrument he would continue his financial relationship with the estate of the decedent to a period of years in connection with the bank of which he is manager, then the presumption of undue influence exists, and the verdict of the jury should be for the contestants.</p> <p>Exception was reserved to the following part of the oral charge:</p> <p>“That the testator would have sufficient mental capacity if, among other things, ho knew the persons to whom he wished to will it; also, that the influence which would amount in law to undue influence must be such influence as is equivalent to force, which he was not able to resist.”</p> <p>The other facts sufficiently appear.</p> <p>Tlie court erred in not admitting the testimony of the expert, and in admitting the testimony of a nonexpert. 80 Ala. 129; 100 Ala. 157, 14 South. 685, 46 Am. St. Rep. 33; 127 Mass. 414; 344 Iowa, 400, 120 1ST. W. 1044, 122 N. W. 928; 21 Mich. 123. The oral charge of the court was error. 40 Cyc. 1144; 131 Ala. 606, 31 South. 94; 119 Ala. 641, 24 South. 459. Charge 1 should have been given. 62 111. 196, 14 Am. Rep. 79. Charge 10 should have been given. 131 Ala. 606, 31 South. 94; 52 Ala. 430 ; 82 Ala. 129, 2 South. 753; 96 Ala. 596, 11 South. 036. Charges 14 and 16 should have been given. Authorities supra.</p> <p>The court properly sustained demurrers to 4th and 5th grounds of contest. 114 Ala. 623, 22 South. 17; 119 Ala. 641, 24 South. 459: 195 Ala. 471, 70 South. 148. The court did not err in refusing to admit testimony as to the source of title of property devised. 169 Ala. 416, 53 South. 750. Evidence of Dr. Mc-Quillen. was properly excluded. 28 Ala. 100. The hypothetical question was not (supported by the facts in evidence. 139 Ala. 16, 36 South. 1012; 195 Ala. 397, 70 South. 763; 22 C. J. 710. Mann was guilty of undue influence and occupied no confidential relations. 172 Ala. 295, 55 South. 314; 95 Ala. 486, 11 South. 204, 36 Am. St. Rep. 227; 106 Ala. 84, 17 South. 187, 54 Am. St. Rep. 22; 88 Ala. 462, 7 South. 250; 91 Ala. 279, 8 South. 286, 24 Am. St. Rep. 904; 119 Ala. 663, 24 South. 459 ; 31 Ala. 59, 68 Am. Dec. 150; 197 Ala. 239, 72 South. 500.</p>

L. Brewer, Judge. Action by John Eausett against Emma T. Carroll and another. Judgment for plaintifl, and the named defendant appeals.

<p>Principal and agent <&wkey;l 16(I) — Authority of agent measured by that actually conferred as to principal, but measured as to that apparently conferred as to other parties.</p> <p>As between the principal and the agent, the scope of authority is that actually confei'red, and may be limited by secret instructions and restrictions, but, as between principal and third persons ignorant of the extent of the authority, the scope of the authority is that which the principal has held out the agent as possessing, or which he has permitted the agent to represent that he possesses.</p>

Petition by John Brown for a writ of certiorari to review the action of the Court of Appeals (89 South. 862) in reversing an order of the circuit court of Jefferson county awarding a writ of habeas corpus ad testificandum to the State Warden General to produce the petitioner before the circuit court to testify as a witness in a civil action by petitioner.

W. Godbey, Special Judge. Assumpsit by W. A. Weaver against R. L. Henderson. Judgment for defendant, and plaintiff' appeals. Transferred from Court of Appeals, under section 6, p. 449, Acts 1911. The action was on a negotiable promissory note executed by R. L. Henderson to the Hartselle Oil & Fertilizer Company, and transferred by said company to the plaintiff, Weaver.

Brickell, Judge. Bill by the Chattanooga Savings Bank against Baxter Crawford and others for reformation of a mortgage and its foreclosure. From the decree rendered, complainant appeals. The bank still has the legal title and is the real party in interest, and the respondents would be protected by recovery by or payment to the bank. 106 Ala. 636, 17 South. 628; 130 Ala. 613, 29 South. 194; 30 Cyc. 78.

P. Almon, Judge. Assumpsit by Robert Saint, as administrator of the estate of Nancy Sugg, against B. E. Britnell. Judgment for defendant, and the plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, page 449.

T. Lowe, Judge. Detinue by W. J. Wood against Estella Sykes. Judgment for the plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. The court gave at the request of the appellant, the following charge: (3) If the jury believe from the evidence that, when Dr. Wood sent Miss Sykes the ring, they were not engaged, but that Dr. Wood was merely trying out his luck, then the verdict will be for the defendant.

S. Williams, Judge. Suit by the First National Bank of Enterprise against the American Central Life Insurance Company. Judgment for plaintiff, and defendant appeals. The court erred in overruling demurrers to plaintiff’s replication, and in sustaining demurrers to the rejoinders thereto, since the entire contract was the policy in the application therefoi1. 171 Ala. 438, 55 South. 166; 10 Ala. App. 446, 65 South. 449.

M. Miller, Judge. Bill by Mrs. Annie F. Boyd against E. D. H. Spiva and others to set aside and annul a deed. From a decree granting the relief prayed, respondents appeal. Mrs. Boyd filed her bill in August, 1920, to set aside a deed executed by her in October, 1908, by which she conveyed to E. D. H. Spiva and his sister, Annie Spiva Oxford, a certain farm of 600 acres in Wilcox county, in which she expressly reserved a life interest for herself.

<p>Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.</p> <p>Action by James M. Hanby against W. J. Dominick for damages for trespass to land by cutting timber therefrom. ’Judgment for the defendant, and plaintiff appeals.</p> <p>Appellant sued appellee to recover damages for trespass on a certain tract of land situated in Bibb county described in the complaint, alleged to be the property of the plaintiff and for cutting the timber thereon. The court gave the general affirmative charge with hypothesis for the defendant, and from the judgment following the plaintiff prosecutes this appeal.</p> <p>It js without dispute that the plaintiff showed a good title in him to the lands described, but his title was subject to a prior-deed, conveying certain timber on the land to one U. S. Hodges. Plaintiff’s deed was executed in November, 1915, and at the time of his purchase Hodges’ deed to the timber, which was duly and regularly executed, was on record in Bibb county. ’ Under the provisions of the timber deed the time for cutting the timber expired March 1, 1918. All rights of Hodges passed by mesne conveyances to defendant Dominick on February 26, 1916. The following memorandum agreement was entered into, but never recorded:</p> <p>•‘Memorandum Agreement Between J. M. Han-by and U. S. Hodges.</p> <p>“It is agreed that I, James M. Hanby, extend three years from the date of this memorandum of agreement to U. S. Hodges to cut and remove all the timber formerly held by E. L. Hatter, which timber right was conveyed from said Hatter to said Hodges.</p> <p>“It is further agreed that the said Hodges is to cut and remove all timber as expediently as possible. This extension is given to U. S. Hodges individually, and is not transferable, and shall become null and void in case said timber rights are transferred by him.</p> <p>“Witness our hands and seals, this the 26th day of February, 1916.</p> <p>“[Signed] J. M. Hanby.</p> <p>“U. S. Hodges.”</p> <p>The entry upon the lands and the cutting of the timber by the defendant was after March 1, 1918, and prior to March 1, 1920. There was offered in evidence by the defendant written agreement between Hodges and plaintiff in the following language, which agreement was duly executed by the parties and acknowledged before an officer, was filed for record in the probate office of Bibb county, and was on record when the defendant •bought the timber:</p> <p>“Know all men by these presents: That whereas the undersigned, James M. I-Ianby, did heretofore grant and sell unto U. S. Hodges the right to cut and remove all timber 10 inches and above at a point 16 inches from the ground upon the following described lands situated in Bibb county, Alabama, to wit: The west half of the northeast quarter and the northeast quarter of the northeast quarter of section 17, township 21, range 5 west; and the south half of section, and the east half of the northeast quarter and northeast quarter of the northwest quarter of section 18, township 21, range 5 west; and the east half of section and the east half of the west half of the section, and the southwest quarter of the southwest quarter of section 24, township 21, range 6 west, formerly known as the J. W. Miller and E. Lyle Hatter timber. And whereas, the said U. S. Hodges desires an extension of the time within which he is to cut and remove said timber, which extension is agreeable to the said James M. Hanby: “Now, therefore, in and for consideration of the sum of four hundred dollars in cash in hand paid by U. S. Hodges to the said James M. Hanby, the receipt whereof is hereby acknowledged, I, the said James M. Hanby, do hereby agree that the time for the cutting and removal of said timber from said mentioned land shall be and the same is hereby extended until the 1st day of March, 1920, at which time the rights of the said Hodges shall end and expire. Said Hodges shall have sixty days after the above daté within which to remove all timber, machinery and buildings, after which date all such right shall be lost. And as a further consideration for this extension the said U. S. Hodges does agree that said timber is to be cut cleanly upon each forty-acre tract as he goes along with the cutting, and that the surface of each forty-acre tract is to be released to said James M. Hanby, as fast as the timber is removed therefrom.</p> <p>“In witness whereof, we have hereunto set our hands and seals, on this, the 27th day of April, 1918.</p> <p>“[Signed] James M. Hanby. [Seal.]</p> <p>“U. S. Hodges. [Seal.]”</p> <p>It is without dispute that the defendant had no notice of any kind of the contract between plaintiff and Hodges of the 26th of February, 1916, above set out, when he purchased the timber, and that he was in fact a bona fide purchaser of said timber.</p> <p>Counsel insists that the court erred in directing a verdict for the defendant, but they cite no authority in support of their contention.</p> <p>The court properly directed a verdict for the defendant. Section 8383, Code 1907; 173 Ala. 368, 56 South. 224; 64 Ala. 187; 140 Ala. 37S, 37 South. 275, 1 Ann. Cas. 319: 160 Ala. 276, 49 South. 312; 180 Ala. 416, 61 South. 341; 13 Cyc. 687-6S9.</p>

<p>1. Waters and water courses c&wkey;i7l(l) — Liability for obstruction or diversion not matter of negligence.</p> <p>The liability for obstruction or diversion of flow of water is not a matter of negligence vel non, as it touches one cutting ditches and making waterways on his own land, to ascertain whether he will divert or cause water to flow upon the lands of -a neighbor to the latter’s injury, ordinarily or in times of high water.</p> <p>2. Waters and water eoursés &wkey;>l79(l) — -Complaint for damages for overflowing land held demurrable.</p> <p>A complaint, in an action against a railroad for damages for overflow of lands, alleging that “on said day said-culvert was insufficient” was subject to demurrer by reason of its failure to aver that on said day the culvert “as maintained by defendant” was insufficient, etc.</p> <p>3. Waters and water courses <&wkey;l7l(l) — Railroad not liable for flooding caused by clogging of culvert without its knowledge.</p> <p>If culvert on railroad’s right of way was sufficient to take care of a stream, and became obstructed without its knowledge, fault, or notice to it, it was not liable for damage to a landowner from overflow, unless it was negligent in not knowing thereof, or in not removing the obstruction.</p>

Golsby, Judge. Bill by Mary A. O'Connor against Mrs. E. II. Morriss and another to cancel mortgage because giveu to secure her husband’s debt aud because obtained under duress and coercion. From a decree granting the relief prayed, the respondent Morriss appeals.

K. McMorris, Judge. Bill by J. Bice & Son against W. G. Robinson, for the specific performance of a contract to convey lands, and for an accounting, wherein defendant filed an answer and cross-bill. From a decree overruling demurrers to the original bill as amended, and sustaining demurrers to the cross-bill, defendant appeals.

Petition by the State of Alabama, on the relation of Harwell G. Davis, as its Attorney General, for certiorari to the Court of Appeals to -review and revise the judgment of said court .reversing and remanding the appeal of Jimmie Brown v. State, 90 South. 278. The Court of Appeals was wrong in holding that the evidence was improperly admitted. Sections 21, 23, 29%, and 37, p. 17 et seq., Acts 1915. Brief of counsel did not reach the Reporter.

Locke, Judge. Bill by Felix M. Drennen against Joseph D. Cooper and others for the rescission of parol contract to purchase stock. From a decree overruling the demurrers and transferring tlie cause to the law docket of the circuit court, respondents appeal. The demurrers should have been sustained. 200 Ala. 328, 76 South. 94. Counsel discuss the other assignments of error, but without further citation of authority. Brief of counsel did not reach the Re-1 porter. i

<p>1. Equity <&wkey;84 — Laches of one complainant held not a bar against others.</p> <p>Even if one of the wards was guilty of laches after attaining Ms majority which precluded recovery by him from the surety on the guardian’s bond, his laches would not bar recovery by the other wards, since the liability of the surety was several as well as joint, and since Code 1907, § 3212, expressly authorizes the chancery court to grant relief in favor of one or more complainants as they may be entitled.</p> <p>2. Guardian and ward <&wkey;l82(4) — Administrator of deceased insolvent guardian not necessary party to bill against surety.</p> <p>The administrator of the estate of a deceased guardian, which estate was insolvent, . though a proper, is no't a necessary, party to .a bill by the wards against the surety of the , guardian to fix the surety’s liability.</p> <p>3. Equity <&wkey;87(!) — Amended bill against surety joining guardian’s administrator held not new cause of action.</p> <p>An amended bill against the surety of a guardian to fix its liability, filed after a demurrer to the original bill was sustained, hut Which sought the same relief and was based on the' same facts, does not state a new cause of action, though the guardián’s administrator was ■ for the first time joined as respondent therein, so that the filing of the original bill prevented the bar of laches by analogy to the statute of limitations.</p> <p>4. Guardian and ward <&wkey;!80 — Decree against deceased guardian’s estate is not binding on surety.</p> <p>A decree of the probate court settling the account of a deceased guardian is not binding upon the guardian’s surety who was not a party thereto.</p> <p>5. Guardian and ward &wkey;ol82(5) — Allegation of decree against guardian’s estate does not invalidate bill against surety.</p> <p>In a bill to fix the liability of the surety of the deceased guardian; an allegation of the decree in the probate court settling the guardian’s' account, made merely as an allegation of fact and not on the theory that the surety was bound thereby, does not make the bill demurrable.</p>

, Appeal from Circuit Court, Etowah County ; O. A. Steele, Judge. Action by J. A. Yaughn against the Dwight Manufacturing Company, a corporation, and another. Judgment for the named defendant, and the plaintiff appeals. On the second trial W. T. Christopher was eliminated as a party defendant.

L. Martin, Judge. Assumpsit by the Garland Company against G. D. Leverett. Judgment for the plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

<p>Appeal from Circuit Court, Autauga County; E. Loyd Tate, Judge.</p> <p>Ejectment by the Marbury Lumber Company against John B. Wainwright and others for the recovery of certain land. Judgment for jffaintiff, and defendants appeal.</p> <p>The court erred in giving the affirmative charge. 38 Cyc. 1533, 1567, 1570; 134 Ala. 641, 33 South. 16; 5 Ala. 29; 205 Ala. 35, 88 South. 139. The court erred in admitting the deeds, as they were void as to appellants. 73 Ala. 537*; 122 Ala. 323, 25 South. 204; 190 Ala. 566, 67 South. 234; 192 Ala. 188, 68 South. 353; 47 Ala. 637 ; 60 Ala. 582, 31 Am. Rep. 52; 151 Ala. 482, 44 South. 375. Adverse possession was sufficiently shown to require its submission to the jury. 98 Ala. 198, 13 South. 495; 16 Ala. 581; 54 Ala. 147; 159 Ala. 615, 4$ South. 1033; sections 2476 and 2482, Code 1852.</p> <p>The adverse possession is limited to the lands actually occupied. 153 Ala. 493, 45 South. 159; 60 Ala. 332; 141 Ala. 451, 37 South. 799,109 Am. St. Rep. 45; 128 Ala. 5S9, 29 South. 596. No acts of adverse possession are shown. 76 Ala. 12S; 180 Ala. 109, 60 South. 139, Ann. Gas. 1915C, 1058; 84 Ala. 500, 3 South. 475, 5 Am. St. Rep. 393; 174 Ala. 137, 57 South. 377; 61 South. 299; 125 Ala. 391, 28 South. 84; 122 Ala. 367, 24 South. 999; 98 Ala. 81, 12 South. 782 ; 78 Ala. 61. The court did not err in admitting the deeds. 60 Ala. 582, 31 Am. Rep. 52; 71 Ala. 260.</p>

Petition by the State of Alabama, on the relation of Harwell G. Davis, Attorney General, for certiorari to the Court of Appeals, to review and. revise a judgment of conviction. Petition by the State of Alabama, on the relation of Harwell G. Davis, Attorney General, for certiorari to the Court of Appeals, to review and revise the judgment of said court rendered on the appeal of Dannie Dillehay v. State, 90 South. 332. Writ denied.

Locke, Judge. Bill by Emma E. Kent against Thomas L. Brennen to rescind an executed contract for the mutual exchange of certain real property. Decree for complainant, and respondent appeals. The right to rescind was not shown by the character of evidence required. 95 Ala. 389, 11 South. 15; 112 Ala. 581, 20 South. 929; 162 Ala. 476, 50 South. 227.

C. B. Gwin, Judge. Action by Ethel D. Tucker against the Sovereign Camp, Woodmen of the World, for the beneficiary life certificate issued upon the life of her husband. Judgment for the plaintiff, and the defendant appeals. Plea 7 was good, 80 Miss. 546, 32 South. 4. There was no waiver. Sov. Camp W. O. W. v. Allen, ante, p. 41, 89 South. 58. Under these authorities, defendant was entitled to the affirmative charge.

<p>1. Detinue &wkey;>l8 — Burden is on plaintiff to prove general or special property in goods, and their value.</p> <p>In detinue, where defendants pleaded the general issue, and thereby admitted possession of the property under Acts 1911, p. 33. § 1, the burden is on plaintiff to prove a general or special property, giving the right to immediate possession of the goods and their value.</p> <p>2. Detinue &wkey;>18 — Plaintiff’s prima facie case casts on defendant burden of proving superior claim.</p> <p>Where plaintiff in detinue had established a prima facie case by proving a mortgage covering the goods, which was unpaid, and the value of the goods, the burden shifted to the defendants, who had admitted possession, to show a prior claim on or superior title to the goods, and that burden was not sustained by proof of a subsequent mortgage on the goods.</p> <p>3. Landlord and tenant 4&wkey;248(2) — Landlord’s iien applies to advances by third party only if tenant knew of promise to pay them.</p> <p>The preference given to advances for which the landlord promised to pay, by Code 1907, § 4734, does not arise unless the tenant knew of the landlord’s promise to pay the advances at the time he secured them, or thereafter ratified the landlord’s act.</p> <p>4. Landlord and tenant &wkey;s262 (4) — Evidence held to show landlord was not liable for advances to tenant.</p> <p>Evidence that the tenant bad no knowledge of any promise made by bis landlord to secure advances to the tenant, which were represented by a note and second mortgage on the crop executed by the tenant alone, and that the landlord’s only promise was to see that the advances were paid to the extent of the crop made by the tenant, did not show that the landlord became liable to pay the advances so as to entitle them to preferences over a prior crop mortgage.</p> <p>5. Appeal and error <&wkey;IOIO(l) — Finding of judge on oral evidence not disturbed.</p> <p>The findings by the court in an action at law based on,evidence will not be disturbed on appeal, since the judge who saw the witnesses and heard them testify was better able to judge their credibility than the Supreme Court.</p>

Kyle, Judge. Action in trover by H. P. Biggers against Griffith & Warren for the conversion of one bale of cotton. Judgment for the plaintiff, and defendants appeal. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. The facts sufficiently appear from the opinion of the court. The court erred in judgment rendered}.

Pugh, Judge. Detinue by Nicholas Brooks against N. F. Cornett for a Ford automobile. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

Locke, Judge. Bill by J. P. Stone against Katie B. Stone. Erom a decree for plaintiff, defendant appeals. The bill was based upon the statutory grounds of voluntary abandonment. Respondent’s answer denied that she voluntarily abandoned complainant, and asserts that she left him under the compulsion of cruel and inhuman treatment and threats of violence.

<p>f. Sales <&wkey;2Q2(2,3) — Facts held to show sale was for cash represented by check.</p> <p>Evidence that plaintiff offered to sell his mules for cash, and that when a prospective buyer tendered a check for the price he refused to accept it until assured by others that the check was good, shows that the sale was for cash and that delivery was conditioned upon the check being honored.</p> <p>2. Sales <&wkey;202(4) — -Title does not pass where delivery is conditioned on payment.</p> <p>Though title chattels is transferred when the seller makes delivery with intention to pass title, even if the sale was procured by fraud, no title passes where delivery and payment were intended to be concurrent acts, even though possession is transferred to the buyer before payment.</p> <p>3. Sales <&wkey;234(8) — Seller parting with possession on condition of payment in cash on dishonor of check can recover goods from innocent purchaser.</p> <p>Where the seller parted with possession of goods with the intention that the sale was to be for cash and that title was not to pass until the check for the purchase money was honored, he can, after the dishonor of the check, recover the goods even from an innocent purchaser.</p> <p>4. Sales &wkey;>225(4) — Bogus checks given in payment of purchase money held admissible.</p> <p>In detinue to recover from a subsequent purchaser two mules which plaintiff sold for cash- and delivered on receiving a check wnich he was told was good but which in fact was bogus, the check with the indorsements thereon was admissible in' evidence.</p> <p>5. Sales &wkey;o225(4) — Sufficiency of protest of admittedly bogus check is immaterial.</p> <p>Where it was admitted that the check given for the purchase of plaintiff’s property was bogus, it was immaterial, in an action to recover the property, whether the protest was in proper form.</p> <p>6. Sales <@=»225(4) — Evidence of authorship of bogus check for purchase money is admissible.</p> <p>In detinue to recover two mules sold for cash and delivered on receipt of a check, where it was undisputed that the buyer was introduced to plaintiff under an assumed name by those who intended thereby to secure the mules from plaintiff, evidence that one of those who introduced the buyer wrote out the check given for the purchase money was admissible.</p>

W. Harralson, Judge. Ejectment by Elizabeth Perkins against William B. Perkins. Judgment for the plaintiff, and defendant appeals. The deed was never delivered from appellant to appellee. 65 Ala. 336; 71 Ala. 295; 47 Neb. 399, 66 N. W. 439, 53 Am. St. Rep. 540; 4 J. J. Marsh. (Ky.) 572, 20 Am. Dec. 230; 102 Ala. 274, 14 South. 663, 48 Am. St. Rep. 37; 158 111. 567, 41N. E. 1007, 49 Am. St. Rep. 176; 106 Mo. 313, 17 S. W. 319, 27 Am.

<p>Brokers &wkey;s75 — Broker held entitled under contract to commission only on cash payments on sale of land as received.</p> <p>Where a broker was given an option to purchase land at a given price payable in cash when conveyance was made, and the owner by a separate contract agreed that, if the broker sold the property and exercised, his option, to pay him 10 per cent, of the amount realized, but that, if the terms of the option were modified and the price reduced or the owner agreed to accept part cash and the remainder on time, he should be paid 10 per cent, “of the whole amount so sold for in cash,” the words quoted, when interpreted in the light of the provisions of both instruments show an intention to graduate the payment of commissions on the basis of cash received by the owner under a contract of sale, and the broker, on sale of the property on installments, could recover commissions only on the cash payments, as received.</p>

A. Steele, Judge. Action by John W. King against A. A. Weston. Judgment for plaintiff, and defendant appeals. Transierred from Court of Appeals under section 6, Acts 1911, p. 449. The judgment in ejectment and the writ of possession awarded A. A. Watson had the same effect as to John W. King that it had as to W. J. King. 89 Ala. 329, 6 South. 756, 6 L. R. A. 617; 25 Ala. 126; 4 Ala. 592, 39 Am. Rep. 307; 120 Ü. S. 337, 7 Sup. Ct. 568, 30 L. Ed. 669; 9 R. C. L. p. 924.

Petition by the State of Alabama for certiorari to tbe Court of Appeals to review a judgment of such court on the appeal of the State of Alabama against the White Furniture Company, 90 South. 895. Personal property is assessable to tbe legal owner. Acts 1919, p. 298, §§ 44 to 89, inch; 162 Ala. 469, 50 South. 117; 93 Ala. 4, 9 South. 425 ; 26 R. C. L. 358; 139 Mass. 266, 1 N. E. 419; 84 Ky. 502, 2 S. W. 164.

<p>Appeal from Circuit Court, Marshall County; W. W. Harralson, Judge.</p> <p>Action by J. P. Davis, as administrator of E. G. Williamson, against H. J. Morgan, in detinue, trespass, and trover. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.</p> <p>Having attacked the identical papers on the same grounds in both suits, and having lost the first, Morgan was estopped in the second. 8 Am. Dig. Key-Nos. 712 and 713; 203 Ala. 205, 82 South. 455; 184 Ky. 638, 212 S. W. 442; Morgan was a party to the records. 164 Ala. 298, 51 South. 390; 45 Ala. 362: 102 S. E. 178; 23 Cyc. 1215. Prior possession would be sufficient, regardless of title. 12 Ala. 678; 2 Stew. 54; 32 Cyc. 667-78; 35 Cyc. 37, 187-191.</p> <p>The court did not err in refusing to permit the plea. The instrument in writing was not admissible. Jones on Evidence, p. 376. The mortgage was not void because of the description. S3 Ala. 391, 3 South. 774; 135 Ala. 297, 33 South. 41. The case was properly presented to the jury, and no injury occurred.</p>

L. Brewer, Judge. Action by J. F. Robertson against tlie Central of Georgia Railway Company, for damages for injuries suffered while a passenger. Judgment for the plaintiff; defendant appeals. The court erred in excluding the expert testimony. 202 Ala. 317, 80 South. 401. The question of negligence vel non was for the court, and the defendant was entitled to the affirmative charge. 203 Ala. 358, 83 South. 102; 113 Ala. 267, 22 South. 182.

P. Almon, Judge. Ejectment by E. M. Perry against Lee Pippin. Judgment for plaintiff and defendant appeals.

P. Agee, Judge. Action by R. W. Drane and another against J. G. .Wells and another. Judgment for plaintiffs, and defendants appeal. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. It was competent to show by parol evidence partial failure of consideration for the note. 192 Ala. 16, 68 South. 261; 185 Ala. 206, 64 South. 40; 6 Ala. 146; 11 Ala. 489; 19 Ala. 203; 41 Ala. 187; 57 Ala. 444 ; 72 Ala. 286; 118 Ala. 369, 24 South. 405.

O. Brickell, Judge. Action by Sallie Normer Overton, against the Sovereign Camp, Woodmen of the World, on a beneficiary certificate issued by the defendant order to plaintiff’s husband, D. A. Overton, upon his admission to membership therein, in the year 1905. Judgment for the defendant, and the plaintiff appeals.

<p>1. Sales <&wkey;472(2) — Conditional seller’s title Under unrecorded contract good against one not claiming under conditional purchaser.</p> <p>Notwithstanding- Code 1907, § 3394, declaring contracts for the conditional sale of personal property void against purchasers, etc., unless in writing and recorded, the title of the seller under a conditional contract which was not recorded was valid as against a purchaser from one the source of whose title was not shown, and who, so far as appeared, did not claim title under or through the conditional vendee.</p> <p>2. Tender &wkey;>24 — Rescinding party who tendered difference in price not required to pay it into court.</p> <p>Where a party, attempting to rescind an exchange of automobiles for failure of title to the car received by him, on two different occasions tendered back the cash difference in price paid him, he did all within his power to place the parties in statu quo, and his failure to pay the money into court, in an action of detinue to recover Ms car, did not prevent judgment in his favor.</p>

<p>Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.</p> <p>The Visible Measure Gasoline Dispenser Company applied to the circuit court of Geneva county for common-law of certiorari, to annul and vacate the judgment rendered by them in the justice court in which the McCarty Drug Company was plaintiff, and, the circuit court declining to grant the writ after a hearing on the merits, the petitioner appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.</p> <p>The justice court judgment was void, and should have been vacated and annulled. 173 Ala. 599, 5-8 South. 203; 1 Ala. App. 448, 55 South. 266; sections 2931 and 2962. Code 1907; Acts 1915, p. 604; 126 Ala. 168, 28 South. 711, 85 Am. St. Rep. 17; 151 Ala. 639, 44 South. 688.</p> <p>Brief of counsel did not reach the Reporter.</p>

<p>1. Railroads t&wkey;344(9) — Complaint held to charge wanton injury.</p> <p>Count alleging that, while plaintiff was crossing a railroad track at a public crossing, defendant’s servants wantonly ran a locomotive against his automobile with reckless disregard of consequences and as a result plaintiff was injured, held sufficient as a wanton count.</p> <p>2. Railroads <&wkey;5l/2, New, vol. 6A Key-No. Series-Government not liable for punitive damages.</p> <p>The Director General of Railroads representing the federal government is not liable for punitive damages for wanton negligence in the operation of trains.</p> <p>3. Damages <&wkey;9l(3) — Under count for wanton negligence, compensatory as well as punitive damages recovered.</p> <p>Under a count for wanton negligence, plaintiff may recover compensatory as well as punitive damages.</p> <p>4. Railroads <&wkey;5!/2, New, vol. 6A Key-No. Series-Substituting name of successor of Director General authorized by Transportation Act.</p> <p>In an action against a Director General of Railroads, an amendment substituting the name of his successor, was authorized by Transportation Act Feb. 28. 1920, §§ 206a and 206d, and did not work a change of the party defendant.</p> <p>5. Trial t@=^260(8) — Refusal of charge requested harmless where covered by oral charge.</p> <p>In an action for damages for injury at a railroad crossing where plaintiff alleged wanton negligence', the error in refusing an instruction that there could be no recovery for simple negligence was without prejudice, as the jury were so instructed in the oral charge.</p> <p>6.Railroads <&wkey;>339(l) — Instruction on wanton misconduct held proper.</p> <p>An instruction that neither a failure to blow the whistle nor ring the bell, nor the speed of the train before the peril of plaintiff at a crossing became manifest, or ought to have been manifest, is evidence of wanton, reckless, or intentional misconduct, held proper.</p>

W. Harralson, Judge. Action by the Citizens’ National Life Insurance Company against W. S. Duff, for whom Iola Duff, as his administratrix, was substituted. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. The pleadings did not put in issue the continued existence of the corporation, but simply put in issue its ownership of the note. 1 Ala. 241, 34 Am.

<p>Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.</p> <p>Bill by Samuel W. Catts against E. Jack Phillips and others to recover royalty under contract. Decree for complainant, and respondents appeal.</p> <p>The court erred in overruling appellant’s demurrers to the bill of complaint. 154 Ala. 355, 45 South. 658; 200 Ala. 276, 76 South. 43; 197 Ala. 395, 73 South. 46; 51 La. Ann. 699, 25 South. 423 ; 22 111. 320, 74 Am. Dec. 155; 13 C. J. 556 ; 36 Oyc. 587, 588, 597. The court erred in rendering final judgment for the complainant. 69 Ala. 86; 109 Ala. 602, 20 South. 51; 101 Ala. 554, 14 South. 630; 95 Ala. 172, 10 South. 225.</p> <p>Complainant had performed his part of the contract, and there could be no want of mutuality. 101 Ala. 446, 14 South. 072 ; 121 Ala. 542, 25 South. 704 ; 79 Ala. 180; 89 Ala-402, 8 South. 114, 18 Am. St. Rep. 126; 36 Cyc. 624; 9 Cyc. 333. The complainant could not have and control an adequate remedy at law. 16 Cyc. 41; 15 Wall. 211, 21 L. Ed. 43. The contract could be specifically enforced. 70 Ala. 493; 128 Ala. 608, 30 South. 543. The contract was sufficiently definite. 106 Ala. 124, 17 South. 352; 103 Ala. 644, 16 South. 35; 108 Ala. 429, 19 South. 781. The court could and did grant proper relief. 90 Ala. 103, 7 South. 440 ; 90 Ala. 502, 8 South. 52; '88 Ala. 335, 6 South. 913; 84 Ala. 611, 4 South. 742 ; 81 Ala. 525, 8 South. 212.</p>

.T. Garrison, Judge. Action by A. R. Lauderdale against T. L. Neighbors and others, upon a promissory note. Judgment for the plaintiff, and the defendants appeal.

Lloyd Tate, Judge. Action by Emma Arnold against the Little Oahaba Coal Company, for damages for the death of her husband. Judgment for the plaintiff, and the defendant appeals. Plaintiff’s husband, 23 years of age, was a coal miner of several years’ experience, and while at work in defendant’s mine, where he was employed in driving a dip heading, was killed by a fall of rock from the roof of the-mine. The complaint as originally drawn up contained four counts.

A. Pearce, Judge. • Action by the Dothan National Bank against the Central of Georgia'Railway Company, for a breach of contract, in failing to deliver or in delivering without… Held: on or before the next succeeding rule day after it is entered; and the clerk shall file a certificate of the fact in the papers of the ease; but the court, or the judge thereof in vacation, may, in any case, if the court or judge deem it proper, dispense with such publication in a newspaper. “2.

B. Smith, Judge. Action hy the Birmingham Tailoring Company against the American Cast-Iron Pipe Company upon an assignment of wages. Judgment for the plaintiff, and the defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

Jones, Judge. Action by W. Nash Read against the Elaketown Graphite Gompany on a promissory note. From a judgment overruling demurrers to the plea, plaintiff takes a non-suit and appeals.

E. Gamble, Judge. Assumpsit by Jesse L. Hattemer, as executrix, against C. M. Davis. Judgment for defendant, and plaintiff appeals.

Assumpsit by the Virginia-Carolina Chemical Company against J. W. Abercrombie. From a judgment sustaining demurrers to the special plea, defendant, declining to plead further, suffered judgment and appealed. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

Greene, Judge. Action by C. W. Swiney against the Robinson Mining Company for personal injuries while in its employment. Judgment for plaintiff, and defendant appeals.

Foster, Judge. Action by E. Rockwood Berry and another against Jacob Marx. From a judgment for defendant, plaintiffs appeal. The court was in error in its rulings oii the evidence, as set out in the various assignments covering that phase of the case. 163 Ala. 511, 50 South. 917; 162 Ala. 433, 50 South. 381, 136 Am.

P. Almon, Judge. Action by Frank Cook against the Sheffield Company for damages for injuries resulting from falling into a ditch. Judgment for the plaintiff, which on motion was set aside, and plaintiff appeals.

<p>Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.</p> <p>Assumpsit by the Wagner Grocery Company, a corporation, against the Dodd-Cooner Mercantile Company, a partnership, alleged to be composed of the persons named in the opinion, together with the individuals composing the partnership. Judgment for the defendants and the plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.</p> <p>The following is plea 9 directed to be set out:</p> <p>“(9) For further special plea to each count of this complaint separately defendants each separately say: That on, to wit, August 2, 1919, B. G. Dodd, doiug business under the firm name of Dodd-Cooner Mercantile Company, filed a petition in the District Court of the United States of the Northern District of Alabama; that said petition by said party under said name prayed to be adjudged a bankrupt; that, if the other named defendants in this case are liable to this plaintiff, they are liable on account and because of the fact that they were partners in the Dodd-Cooner Mercantile Company; that B. G. Dodd, doing business under the firm name of Dodd-Cooner Mercantile Company, was on, to wit, August 2, adjudged a bankrupt; that said court was a court of jurisdiction over this matter, and had jurisdiction to force each member of said partnership into said court, and to adjudge each member of said partnership a bankrupt, and compel him or them to turn over their property to this said court for distribution among the creditors of the said Dodd-Cooner Mercantile Company; that any ex-editor of said concern could have forced any member to turn over Ms assets to said court for distribution; that the plaintiff in this case, as a creditor of said concern, filed his or its claim in the said bankrupt court; that it was scheduled as one of the creditors of said concern, filed its claim, was paid a dividend out of all the proceeds that were distx-ibuted among said creditors, and shared in said distribution; that no action whatsoever was taken against any of the defendants in this case in said court, which had jurisdiction to determine who were the partners of the said Dodd-Cooner Mercantile Company, and in the adjudication of the partners of said concern, none of the defendants, except B. G. Dodd, was found to be a partner of said concern; that on, to wit, May 4, 1920, B. G. Dodd, doing business under the firm name of Dodd-Cooner Mercantile Company, was discharged from all debts which existed against him, prior to August 2, 1919, including the debt sued on in this case, and all matters pending in this court were tried and determined and adjudicated in the said federal court, and plaintiff cannot now recover in this court.”</p> <p>Appellant demurred to each of the said pleas 4, 5, 6, 7, 8, and 9 as follows:</p> <p>“Comes the plaintiff in this cause and demurs to the defendant’s pleas 4, 5, 6, 7, 8, and 9 separately and severally on the following grounds:</p> <p>“(1) Said plea is no answer to the complaint.</p> <p>“(2) The facts stated in said plea do not constitute a defense to the cause of action in this,ease.</p> <p>“(3) The defendant, in said plea, neither confesses and avoids nor traverses the allegations of the complaint.</p> <p>“(4) The facts set up therein do not show or aver that the matters and things involved in this action have been adjudicated by a court of competent jurisdiction.</p> <p>“(5) The facts set up therein show that the court in which the alleged adjudication was had did not have jurisdiction to adjudicate the matters and things involved in this action.-</p> <p>“(6) The facts set up in said plea do not show that said defendant has been adjudged a bankrupt and has been discharged from this debt.</p> <p>“ (7) The facts set up therein do not, in law, constitute an estoppel against the plaintiff.</p> <p>“(8) The facts set up therein are merely a conclusion of the pleader, and no facts are alleged to show as a matter of record that the matters and things involved in this action have been adjudicated by a court of competent jurisdiction.</p> <p>“(9) The said trustee, for aught that appears, was without authority to bind this plaintiff in any negotiations regarding the indebtedness.</p> <p>“(10) Nothing appears therein to show that any of the defendants, except B. G-. Dodd, was adjudged a bankrupt and was discharged from liability on the account sued on.</p> <p>“(11) The facts stated therein as a matter of law show that the said bankrupt court was without authority or jurisdiction to adjudicate the cause of action involved in this cause.</p> <p>“(12) It is not shown therein that the said trustee in bankruptcy made any of the defendants, except B. G. Dodd, a party to the bankrupt proceeding as it is alleged he could and should have done.</p> <p>“(13) It is not averred therein that any of the defendants, except B. G. Dodd, consented to have their individual property administered by the trustee in bankruptcy.”</p> <p>The court sustained the demurrers to pleas 4, 5, 7, and 8, and overruled them as to 6, and 9.</p> <p>Each member of a partnership, is individually liable for partnership debts. 162 Ala. 304, 50 South. 137. Partnership creditors may pursue the adjudicated partners before, during, and after bankruptcy against the partnerhip, and a discharge of the partnership, or either one of the partners, when the other partners are not adjudicated bankrupt, does not discharge the other partners from liability for partnership debts. (D. O.) 184 Fed. 144; 157 Fed. 363, 85 O. G. A. 61, 17 L. R. A. (N. S-.) 886, 13 Ann. Cas. 986; 50 South. 281. The bankrupt court could not, under the pleadings, administer the property of the other partners without their consent. 228 TJ. S. 695. 33 Sup. Ct. 701, 57 L. Ed. 1029, L. R. A. 1915E, 706, and authorities supra.</p> <p>The Bankruptcy Act settles this question. See Bankruptcy Act, § 5, pars, “a” and “c.” 228 U. S. 695, 33 Sup. Ct. 701, 57 L. Ed. 1029, L. R. A. 1915E, 706.</p>

<p>Appeal from Circuit Court, Clay County; W. L. Longshore, Judge.</p> <p>Action by Mrs. E. B. Manning against the Atlanta, Birmingham & Atlantic Railway Company, for damages for injury to property. Judgment for defendant, and plaintiff appeals.</p> <p>Counsel discuss the legal phases of the case, with citation of authority, but, in view of the opinion, it is not deemed necessary to here set them out. On the proposition that a new trial should have been granted, because of the conduct of the jury and the party while viewing the site, counsel cites the following: 29 Cyc. 797 ; 204 Ala. 2, 85 South. 402;. 187 Ala. 458, 65 South. 402 ; 24 Cyc. 280.</p> <p>If there was any improper conduct, both parties were guilty, and the courts leave them where they find them. 200 Ala. 258, 76 South. 24; 119 Ala. 547, 24 South. 548; 187 Ala. 490, 85 South. 528, Ann. Cas. 1910E, 505; 99 Ala. 236, 13 South. 575; 183 Ala. 273, 61 South. 80, Ann. Cas. 1916A, 543; 196 Ala. 401, 72 South. 28. It is open to parties to try their cases on illegal evidence, or with illegally constituted juries. 192 Ala. 354, 68 South. 291; 17 South. 387; 138 Ala. 472, 35 South. 469, 100 Am. St. Rep. 45; 112 Ala. 344, 20 South. 644; 109 Ala. 454, 20. South, 303; and authorities supra.</p>

K. McMorris, Judge. Action by W. J. Fiquett against the Wade Electric Light & Power Company. Judgment for the defendant, and the plaintiff appeals. Transferred from 'Court of Appeals, under-section 6, Acts 1911, p. 450. The trial court erred in rendering judgment for the defendant. 246 Pa. 141, 92 Atl. 124; 251 Pa. 79, 96 Atl. 135; 135 ICy. 611,117 S. W. 278, 22 L. R. A. (N. S.) 1169: 108 Ky. 224, 56 S. W. 153, 53 L. R. A. 147.

Action by J. A. Kirkland against the Laumer Lumber Company on the common counts. Judgment for the defendant, and the plaintiff appeals.

<p>Appeal from Circuit Court, Limestone County; O. Kyle, Judge.</p> <p>Bill by Price Alexander Hamilton and others against James H. Tolley and others to review and reverse a decree for fraud and for a sale of lands for division. From a decree overruling demurrers to the hill, respondents appeal.</p> <p>The case made by the bill is that Martha Hamilton, now deceased, left a last will and testament creating for her son, Yancy Hamilton, a spendthrift trust; testatrix’s brother, Charles A. Arnett, being named as trustee, with power to sell the trust property, and reinvest the proceeds of sale in other property in or out of the state of Alabama, to be held, subject to the same trust, and providing further that said net incomes, rents and profits are not to be enjoyed by him by anticipation before they become due and are paid over to him. The will was duly probated and a copy thereof attached to the bill. The testatrix left a large, landed estate, among which was certain land included in the bill for partition filed in the chancery court of Limestone county by the said Charles A. Arnett against Yancy P. Hamilton and his wife and other defendants, which land was awarded to said trustee, as coining under the terms of his trust; said lands being awarded to Arnett to be held under the power of said will. The said Arnett administered the said trust until some time in 1905, when under an order of the register of the chancery court, W. T. Yarbrough was appointed trustee and entered upon and performed the duties of said trust on December 12, 1905, to February 19, 1909. The said Yarbrough, having conceived the idea of absorbing and acquiring the trust estate for his own individual use and benefit, filed a bill in the chancery court, setting up that the said spendthrift, for whose primary protection the said spendthrift trust was created, had reached an agreement with some one, name not given, to sell said lands for the sum of $8,000, which the said Yarbrough, as trustee, had declined; but he set up in the same bill! that he, himself, jointly with C. E. Frost, was ready and willing to absorb the subject-matter of his trust, at and for the sum of $9,500, upon condition that he and Frost would give their notes as individuals for $9,000 payable 10 years after date, together with 10 notes for $720, payable annually, and provided that these said notes be made nonnegotiable, and that no party, whether trustee or beneficiary, shall have the right or power to anticipate the notes or hypothecate the same, in order to raise money thereon. Here follows the substance of the bill filed by the trustee to effectuate this purpose.</p> <p>Decree was duly entered, ordering a sale of the land, and Yarbrough and Frost became the purchasers. Five days after the modified decree waa entered, Frost relinquished to Yarbrough all his interest in said land by deed dated April 14, 1909, on the recited consideration of $5. Handerson Legg was appointed _to succeed Yarbrough as trastee. Then follows a statement of the deeds of conveyance, executed by Yarbrough, showing a conveyance through various sources to the present respondents. The bill also alleges that a certain part of the land was left out of the decree. Various reasons are stated why the decree ordering the sale of the land and permitting the trustee was void and ought to be vacated, most of which appear from the opinion of the court.</p> <p>The trustee became a stranger to the trust by buying and going into a court of competent jurisdiction, and having the sale ratified and confirmed, and, in the absence of fraud in the rendition or procurement of the decree, the decree is binding. 74 Ala. 604; 205 Ala. 230, 87 South. 349. In any event the purchase was only voidable,- and, if allowed to remain for a long time after knowledge, will be held to have been acquiesced in. 143 U. S. 224, 12 Sup. Ct. 418, 36 L. Ed. 134; 41 Ala. 693 ; 4 Port. 293, 30 Am. Dec. 525; 5 Ala. 90; 9 Ala. 059; 14 Ala. 147; 23 Ala. 219; 36 Ala. 354; 128 Ala. 209; 55 Ala. 525; 29 Ala. 367; 36 Ala. 433; 105 N. Y. 167, 11 N. -E. 380. Some of the defendants to the former suit are barred by the statute of limitations to seek relief now, and the infant defendants cannot be granted relief. 84 Ala. 349, 4 South. 182. In the absence of collusion with the trustee by the purchaser, or knowledge of his intentions to waste the trust fund, the remainderman is bound by one who purchases in good faith from the trustee, having the power to sell. 162 Ala. 448, 50 South. 223. The remaindermen are bound to do equity. 80 Ala. 11; 111 Ala. 188, 18 South. 292, 56 Am. St. Rep. 38; 130 Ala. 502, 30 South. 517; 169 Ala. 648, 53 South. 830. The present attack is a- collateral attack. 117 Ala. 454. 23 South. 821; 182 Ala. 376, 62 South. 706. The bill does not make out a case of fraud sufficient to vitiate the decree. 40 Ala. 155, 88 Am. Dee. 757; 175 Ala. 299, 57 South. 754; 10 Wall. 308, 19 L. Ed. 931; 216 111. 354, 75 N. E. 108, 108 Am. St. Rep. 219; 108 Ala. 29, 18 South. 801; 182 Ala. 376, 62 South. 706; 182 Ala. 622, 62 South. 176, 46 L. R. A. (N. S.) 274; 203 Ala. 683, 85 South. 25; 74 Ala. 334. Persons of the same class were before the court, and hence those not of the same class are bound. 201 Ala. 248, 77 South. 838; 187 Ala. 165, 65 South. 381; 190 Ala. 461, 67 South. 417; 144 Ala. 437, 39 South. 506, 113 Am. St. Rep. 53; 145 111. 573, 33 N. E. 853, 24 L. R. A. 492, 36 Am. St. Rep. 514; 214 111. 113, 73 N. E. 409, 105 Am. St. Rep. 98, 2 Ann. Cas. 787; 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015; 66 S. C. 155, 44 S. E. 564, 97 Am. St. Rep. 757. The bill was not sufficient as a bill for review. 203 Ala. 650, 84 South. 820; 203 Ala. 502, 83 South. 600; 201 Ala. 99, 77 South. 393; 61 Ala. 354; 97 Ala. 451, 12 South. 48.</p> <p>The bill and decree attacked failed to aver jurisdictional facts justifying the sale, and rendered all the proceedings void thereunder. 108 Ala. 651, 18 South. 520; 16 Ala. 411; 18 Ala. 232; 30 Ala. 419;. 29 Ala. 372. The former decree and bill proposed a violation of the trust, and the subsequent or modified decree authorized anticipations of income expressly interdicted by the will. Lew-in on Trusts (1st Am. Ed.) § 588; 8 Misc. Rep. 660, 80 N. Y. Supp. 178; 11 Pick. (Mass.) 120; 125 Mass. 138; 174 Gal. 366, 163 Pac. 206; 189 Ky. 370, 225 S. W. 48; 2 Grat. (Va.) 471, 44 Am. Dec. 395; 179 N. Y. 352, 72 N. E. 242. A former decree authorizing a conversion of the land into choses in action perverted the trust power. 67 Miss. 234, 7 South. 225; 189 Ky. 370, 225 S. W. 48; 2 Perry on Trusts, § 777; 104 Wis. 500, 79 N. W. 766, 81 N. W. 367, 48 L. R. A. 812; 89 Ala. 381, 8 South. 72; 65 Ala. Ill; 13 C. J. 853. Until the father died, these complainants took no estate at all, hut only the prospects of one. 23 Ala. 814; 39 Ala. 528; 178 Ala. 117, 59 South. 58; 139 Ala. 614, 36 South. 775; 90 Ala. 262, 7 South. 836; 130 Mass. 441; 136 N. C. 1S7, 48 S. E. 633, 67 L. R. A. 443 ; 89 Ala. 381, S South. 72. Until the death of the father and the ascertainment as to whether these complainants were to one of the class to whom distribution was to be made, and then only, could it be said that they had any other estate except that in expectancy. 28 Ala. 497 ; 25 Ala. 292; 24 Ala. 669; 139 Ala. 614, 36 South. 775; 136 N. O. 187, 48 S. E. 633, 67 L. R. A. 443; and authorities supra. The doctrine of representation therefore could not apply. 34 Ala. 430, 73 Am. Dec. 461; 74 N. O. 434 ; 264 111. 219, 106 N. E. 262 ; 92 Md. 591, 48 Atl. 145, 52 L. R. A. 406, 84 Am. St. Rep. 524. The power of sale under the will rendered the court proceedings unnecessary, confiscatory and void. 30 Oyc. 354; 33 Wash. 392, 74 Pac. 577, 63 L. R. A. 815, 99 Am. St. Rep. 952. A purchase by a trustee is voidable, irrespective of good faith and adequacy of consideration. 169 Ala. 648, 53 South. 830; 238 Eed. 1007, 151 O. O. A. 663; 143 Ala. 93, 39 South. 366; 149 Iowa, 690, 126 N. W. 942, 128 N. W. 932; 10 N. Y. 402, 61 Am. Dec. 752; 9 Wend. (N. Y.) 571, 24 Am. Dec. 179. The bill and the decree were filled with grave errors, rendering it vulnerable for error apparent, and subject to attack by this bill of review. 203 Ala. 544, 84 South. 739; 130 Ala. 85, 30 South. 728 ; 64 Ala. 364; 97 Ala. 451, 12 South. 48; 185 Ala. 179, 64 South. 312; 80 Ala. 115; 69 kla. 71; 21 C. J. 702, 733. This is a direct attack. 86 Conn. 546, 86 Atl. 10, Ann. Cas. 1914B, 82; 136 Iowa, 128, 113 N. W. 492, 12 L. R. A. (N. S.) 891, 125 Am. St. Rep. 229; 28 Cyc. 1062.</p>

<p>1. Trial <&wkey;252(8) — Instruction not warranted by evidence properly refused.</p> <p>In an action for assault and battery, a requested instruction that plaintiff was a trespasser was properly refused, where the evidence showed he was either an invitee or a licensee.</p> <p>2. Assault and battery <§=39 — Award of punitive damages held within discretion of jury.</p> <p>In an action for assault and battery, it was within the jury’s discretion' to award punitive damages, where there was testimony that defendant had insulted, cursed, threatened to shoot, pointed a pistol at, and kicked plaintiff.</p> <p>3. Assault arid battery <@=38 — Damages recoverable for injuries to feelings.</p> <p>In an action for assault and battery, damages may be recovered for insults, indignities, and injuries to feelings.</p> <p>4. Assault and battery <§=5 — A kick from which no pain results constitutes physical injury.</p> <p>A kick constitutes a physical injury for which recovery can he had. in an action for assault and battery, though no pain and but momentary sensation resulted therefrom.</p> <p>5. Assault and battery <&wkey; 13 — Self-provoked assault er battery actionable, where more force used than necessary for self-defense.</p> <p>Recovery may he had for an assault or battery provoked by plaintiff, -if defendant used greater force than was necessary for self-defense.</p> <p>6. Assault and battery <§=42 — Whether greater force used than necessary for self-defense held for jury.</p> <p>In an action for assault or battery provoked by plaintiff, whether defendant used greater force than necessary for self-defense is a jury question.</p> <p>7. Appeal and error <&wkey;1004(1) — Verdict not set aside as excessive, unless evidence clearly warrants.</p> <p>In an action for assault and battery, a verdict will not be set aside as excessive, unless clearly shown excessive by the evidence.</p> <p>8. Appeal and error &wkey;l004(l) — Reasonable assessment of punitive damages not set aside.</p> <p>The assessment by a jury of punitive damages, as for a highly aggravated assault, will not be set aside if reasonable.</p>

Jones, Judge. Bill by the American Bonding Company of Baltimore against the Fourth National Bank of Montgomery for subrogation and to hold the said Bank as trustee for certain funds. From a decree, sustaining demurrers to the bill, complainant appeals.

Foster, Judge. Action by L. E. Parsons, as administrator, against the Yolande Coal & Coke Company, for damages for the death of his intestate. There was verdict for the plaintiff, which on motion was set aside, and plaintiff appeals.

<p>Appeal from Circuit Court, Calhoun County; A. P. Agee, Judge.</p> <p>Detinue by T. L. Smith against S. H. Howell, for the recovery of two mules. Judgment for the plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.</p> <p>The following are the charges’ given for the plaintiff:</p> <p>(1) The court charges the jury that, if there is anything due on the mortgage belonging to the plaintii'f, and the defendant has not a set-off equal to or greater than the, amount due on the mortgage, then your verdict should be for the plaintiff.</p> <p>(2) The court charges the jury that the burden of proof is on the defendant, S. II. Howell, to establish his set-off to the reasonable satisfaction of the jury, and, unless the jury is reasonably convinced of this issue from the proof, then the jury cannot find for the defendant on this issue.</p> <p>(3) The court charges the jury that the burden of proof is on the defendant, S. H. Howell, to show that the mortgage was paid under the plea of payment, and, unless this is proven to your reasonable satisfaction, then you cannot find for the defendant on this issue.</p> <p>(4) The court charges the jury, if S. H. Howell did not pay the mortgage belonging to •■the plaintiff, or he has not a set-off equal to or greater than the amount due on said mortgage, then your verdict should be for the plaintiff.</p> <p>(5) The court charges the jury that, unless the defendant paid the mortgage debt, or his set-off is equal to or more than $312.23, the verdict should be for the plaintiff.</p> <p>(G) The court charges the jury that, unless at the time the mortgage sued on was transferred to the plaintiff, the same had been paid, or the defendant had a set-off equal to or greater than the amount due on said mortgage, then your verdict should be for the plaintiff. •</p> <p>(7) The court charges the jury that, if you find the issue in favor of the plaintiff, the form of your verdict may be as follows: “We, the jury, find the issues in favor of the plaintiff for the mule Mag and the mule Nell, and we find the value of Mag to be $-— and of the mule Nell to be $-, and the value of the detention to he $-, and we find the balance of mortgage debt to be $ — --.</p> <p>Tlie following are the charges refused to the defendant:</p> <p>(2) The court charges the jury that the evidence offered in this ease as to store transactions between Jim Howell and S. H. Howell that the evidence proper to be considered is that bearing upon the automobile sold by Jim Howell, the $50 note given by Jim Howell to fc!. H. Howell, and the cotton seed turned over by S. H. Howell to Jim Howell.</p> <p>(3) The court charges the jury that, if you believe from the evidence that the cotton and cotton seed money testified about in this case was turned over to Jim Howell to be paid on Border’s debt, and Jim Howell did not apply same on the Border’s debt, but did apply same on the note involved in this suit, it would be your duty to find the issues in favor of defendant, S. H. Howell.</p> <p>Counsel discuss the various assignments of error, but without citation of authority.</p> <p>The burden was on the defendant to establish his plea of set-off in the court. Ill Ala. 194, 20 South. 514. Counsel discuss of other assignments of error, but without citation of authority.</p>

<p>1. Evidence <&wkey;458 — Proof of surrounding facts and circumstances must relate to time of execution of conveyance.</p> <p>Parol and other proof as to surrounding, facts and circumstances must relate to the time of the execution of the conveyance.</p> <p>2. Evidence 4&wkey;452, 461 (I) — Parol evidence admissible to explain ambiguity but not to import unexpressed intentioh.</p> <p>Parol evidence is admissible to explain an ambiguity that does not appear on the face of the writing, but not to import into the writing an intention not expressed therein.</p> <p>3. Deeds <§=»! !8-~Extrinsic evidence held insufficient to impute intention to convey inchoate right to subsequently patented land.</p> <p>In ejectment by one claiming under á patent to representatives of a former owner, a report of the General Land Office confirming their claim to land, the description of which was indefinite and the quantity and length of occupancy unknown, and a land office map showing a survey thereof, held insufficient in connection with Act Cong. May 8, 1822, §§ 3, 4, authorizing grants of land actually inhabited or cultivated on or before April 15, 1813, by-persons whose claims thereto were comprised in the lists reported by the registers, to impute to the heirs of such former owner an intention to transfer, by an ordinary warranty deed purporting to convey two tracts of land for a recited consideration, an inchoate right to whatever land the government might thereafter grant to grantees; such deed, though void for uncertainty of description, disclosing an intent to convey a specific body of land with a present title thereto.</p> <p>4. Adverse possession &wkey;>7(3) — Public lands <&wkey;U4(6) — No prescription as to grant prior to issuance of patent; proof of adverse possession prior to issuance of patent held inadmissible.</p> <p>In ejectment by one claiming under a patent issued in 1911, proof of adverse possession by defendants since 1870 was inadmissible, as .the issuance of a patent rebuts any presumption that one was issued prior thereto, and prescription does not run against a grant of land, title to which was in the government during the period of prescription.</p> <p>5. Pleading <i&wkey;l27(2) — Allegation that parents, though “living together as man and wife,” were never married, held not an admission they were not man and wife.</p> <p>In ejectment by one claiming under the heirs of a former owner, where defendant offered in evidence proceedings for the sale of land belonging to such owner’s son, who the petition alleged died without lawful heirs, for the purpose of proving that his father’s children were illegitimate, the answer of deceased’s brothers and sisters consenting to the sale, if, their parents having never married, “though they lived together as man and wife,” they were heirs, did not admit that their parents were not man and wife; the'expression “living together as man and wife” indicating more than mere cohabitation and including a recognition by each of the relationship of common-law marriage.</p> <p>6. Evidence <©=»208(4) — Unsworn answer signed only by counsel held inadmissible admission.</p> <p>In ejectment, where defendant to prove the illegitimacy of a former owner’s children, under whom plaintiff claimed, offered in evidence a proceeding for the sale of land belonging to his son, who the petition alleged died without lawful heirs, an unsworn answer, signed only by counsel for deceased’s brothers and sisters, stating that their parents, though living together as man and wife, never married, was not admissible as an admission of illegitimacy.</p>

Lloyd Tate, Judge. Ejectment by J. A. Pair against N. C. Euller. Judgment for plaintiff, and defendant appeals. The original bill of exceptions contains the following: Plaintiff then offered in evidence the deed of Robert Sanderson and wife to J. A. Pair, of date October 18, 1910. * * * The plaintiff then introduced the deed in evidence.

AVilkinson, Judge. Action by Celia Norris, as beneficiary, against the New York Dife Insurance Company, upon a life insurance policy issued to her husband, now deceased. Judgment for the plaintiff, and the defendant appeals. The following'are the defendant’s pleas: “3.

E. Gamble, Judge. Bill by Rosanna Gardner and another against J. B. Ruffner and others for an accounting and the cancellation of certain mortgages and for an injunction restraining foreclosure of said mortgage. From a judgment for the defendants, plaintiffs appeal. The bill as originally filed sought an accounting and cancellation because of payments and usury, havingjfully paid the mortgage.

K. McMorris, Judge. Action by Josephine Jones, as administratrix of the estate of A. D. Jones, deceased, against the Marbury Lumber Company. Judgment for plaintiff, and defendant appeals.

A. Pearce, Judge. Bill by J. D. Chason, as executor of the last will and testament of the estate of J. A. B. Sykes, against Annie C. Blackshear and another, to declare a deed a forgery, or in the alternative, to declare a vendor’s lien under the deed. The executor having died, the cause was revived in the name of H. C. Bell, as administrator de bonis non. There was judgment for the respondents, and complainant appeals.

P. Almon, Judge. Suit by the City of Florence against Mrs. G. M. Darrow and others to foreclose an improvement lien and distribute the prqceeds, after payment, among the owners. From the decree rendered, Mrs. Darrow appeals. The bill alleged that, under the will of J. K. Swoope, Mrs. Darrow took only a life interest, and that certain other of the heirs of Swoope naming them, were remaindermen.

Locke, Judge. Bill by S. L. Lacy against T. O. Fowler and another to redeem land from mortgage foreclosure sale. From a decree sustaining demurrers to the bill, complainant appeals. The mortgage was executed to complainant by O. S. Scott and Betty Scott, and foreclosed by him on May 20, 1916.

<p>Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.</p> <p>Action by Max Roseman against the Southern Express Company and another for damages for tlie death of his minor son. Judgment for the plaintiff, and defendants ap>peal.</p> <p>The jury assessed the damages at $15,000. The other facts sufficiently appear from the opinion of the court.</p> <p>The child was under duty to look and listen for automobiles, and his capacity was to be judged with reference to his experience as to the particular danger from which his injury resulted. 166 Ala. 519, 52 South. 52; 190 111. 156, 60 N. E. 216, 52 L. R. A. 652, S3 Am. St. Rep. 123; 74 Kan. 606, 87 Pac. 747 ; 24 S. W. 869. Before subsequent negligence can be recovered for, it is essential that the peril of the injured individual be discovered in time to avoid the accident or injury. 81 Ala. 200, 8 South. 216, 60 Am. Rep. 152; 121 Ala. 227, 25 South. 609; 163 Ala. 213, 50 South. 110; 131 Ala. 279, 30 South. 827; 57 Ala. 478. While the damages are punitive under the I-Iomicide Act, yet the discretion of the jury is not unbridled. 12 Ala. App. 477, 67 South. 801; 165 Ala. 29, 50 South. 967 ; 97 Ala. 294, 11 South. 800; 16 Ala. App. 414, 78 South. 408 ; 48 Ala. 33. There was error in the oral charge of the court. 81 Ala. 200. 8 South. 216. 60 Am. Rep. 152; 121 Ala. 227, 25 South. 609; and a thorities supra. The verdict of the jury is excessive. Authorities supra.</p> <p>There was no duty on the boy to stop, look, and listen. 170 Ala. 115, 59 South. 597; 190 Ala. 281, 67 South. 283; 5 Ala. App. 538, 59 South. 775; 177 Ala. 304," 58 South. 277. Notwithstanding the negligence of the child, recovery may be had. 187 Ala. 622, 65 South. 985; -201 Ala. 141, 77 South. 565; 129 Ala. 336, 30 South. 600; 115 Ala. 395, 22 South. 135; 166 Ala. 608, 52 South. 49. The damages were not excessive. 204 Ala. 478, 86 South. 32.</p>

<p>Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.</p> <p>Action hy Edward Coe against the Birmingham Infirmary for damages for personal injuries while being treated. Judgment for the plaintiff, and defendant appeals.</p> <p>The complaint charges that, while the. plaintiff was a pay patient in the defendant’s hospital and under his care, he was severely burned and injured by contact with a bottle as a result of the negligence of defendant’s servants, who were then engaged in their employment of caring for and attending plaintiff, which negligence consisted in negligently allowing said bottle to come in contact with the plaintiff. The evidence tended to show that plaintiff underwent an operation for appendicitis, and while still under the influence of ether was taken into a room, placed in a bed previously prepared for him, and committed to the care of the nurses in charge. It was shown without dispute that in major operations it is proper and usually necessary to apply external warmth to the patient, whose vitality is more or less enfeebled by the shock suffered, and that this was properly provided for in this instance by placing a bottle containing hot water in the patient’s bed, the temperature of which was 110 degrees Fahrenheit. It is further shown that hot water bottles at that temperature are capable of burning and injuring a patient more or less seriously, according to the point of application and the degree of the patient’s vital depression and lack of resistance.</p> <p>According to the testimony of the nurse in charge and of the head nurse, the rubber water bottle Was wrapped twice around with a towel, and, when the patient was placed in the bed', the bottle was placed about 18 inches from his lower body, which was usual and proper, and. that the nurse in charge remained in attendance about two hours until he came from under the influence of ether, and became conscious, when she left the room, in which were plaintiff’s wife and mother-in-law, and thereafter she was informed by one of them that he was burned by the bottle, which event the nurse testifies occurred only after she left the room. On the other hand, plaintiff and his relatives testify that, when he came from under the influence of 3ther, he complained that his leg was burning; that he complained of it several times to the nurse, who ignored it, and that after about 10 minutes, at plaintiff’s request, his mother-in-law examined him; and found his leg burned and blistered by the bottle, during all of which time the nurse was present.</p> <p>Among other things the court in its oral charge said to the jury:</p> <p>“It does not make any difference what the temperature was, if in fact it burned the plaintiff in this case; and the placing of the water in the bed of the plaintiff at that temperature, which did result in his burn, was an act of negligence on its part, whether it was 110 or 210 degrees.”</p> <p>The defendant excepted to the charge. Immediately following that statement, the trial judge further said:</p> <p>“Under all the evidence in this case, you are simply to decide, whatever the temperature of the water was, whether or not the defendant exercised the ordinary precautions demanded of them, at this time, in view of the condition of the patient, also keeping in view the generally approved customs and methods of other hospitals of like character.”</p> <p>The court refused the following charge requested by the defendant:</p> <p>“It was not negligence on the part of the defendant to place that hot water bottle, containing water heated at 110 degrees, in plaintiff’s bed, if properly protected.”</p> <p>The court erred in its oral charge, and in refusing the charges requested by the defendant. Counsel cite no authority in support of their contention.</p> <p>Counsel discuss the errors assigned, but cite no authority in support of their contention.</p>

Appeal rrom Circuit Court, Jefferson County; Richard V. Evans, Judge. Action by Tony Cusimano, by next friend, against the Louis Pizitz Dry Goods Company, a corporation, for damages for jiersonal injuries suffered in an automobile accident. Judgment for the plaintiff, and the defendant appeals.

Kyle, Judge. Ejectment by Robert E. Spragins' against Kick Fitcheard. Judgment for the defendant, and plaintiff appeals. Where both claim from a common source, estopped to deny or dispute title of that source, and neither need trace title beyond that source. 73 South. 197; 75 South. 908; 190 Ala. 597, 67 South. 403. Plaintiff was entitled to show that defendant claimed from the same common source. 190 Ala. 597, 67 South. 403.

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

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

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

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

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

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

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

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

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

<p>Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.</p>

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

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

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

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

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

<p>Original Petition in Supreme Court.</p>

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

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

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

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

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

<p>Original Petition in the Supreme Court.</p>

<p>Appeal from Circuit Court, Lawrence County; W. C. Brickell, Judge.</p>

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.</p>

<p>Appeal from Circuit Court, Jefferson County; A. B. Foster, Judge.</p>