Volume 207 — Alabama Reports

Application by Charley Wade, for' certio-rari to Court of Appeals to review and revise the judgment of said court affirming the appeal of Charley Wade v. State of Alabama, 18 Ala. App. 322, 92 South. 97.

B. Poster, Judge. Action by Sam T. Smith against J. J. Heath, on promissory notes. Prom a judgment for defendant, plaintiff appeals.

Petition by the Pea River Power Company, for certiorari to the Court of Appeals to review and revise the judgment of said court 1 reversing and remanding the appeal of State v. Pea River Power Co., 18 Ala. App. 257, 91 South. 921. Section 2069, Code 1907, exempts from the payment of the taxes here sought to be recovered, notwithstanding the provisions of section 229, Const. 1901. 118 Ala. 143, 22 South. 627, 72 Am. St. Rep. 143; 54 Ala. 354.

C. Wilkinson, Judge. Action by O. L. Jones against tlie Sloss-' Sheffield Steel & Iron Company for damages for personal injury sustained while working in the mine of the defendant. Judgment for $4,000 for plaintiff, and defendant ajipeais. The questions objected to called for an unauthorized opinion of the witness and were invasive of the provinces of the jury. 135 Ala. 504, 33 South. 482; 128 Ala. 621, 29 South. 447; 199 Ala. 676, 75 South. 24; 2 C. J. 264.

J.' Curtis, Judge. Action by Armour & Co. against the Alabama Power Company, for damages for injury to an automobile in collision. Judgment for the plaintiff, and the defendant appealed. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. There were two counts in the complaint, count 1 of simple negligence, and count 2 upon wanton misconduct.

Wilkerson, Judge. Action by Cordelia Brown, as administra-trix' of the estate of Albert Brown, against the Alabama Company for damages for the death of her husband. Judgment for the plaintiff, and the defendant appeals. When a release is executed by an administrator, it is not an individual act, but is done in a representative capacity, for the administrator is the only person that can bring suit for the death of an employee.

B. Smith, Judge. Action by the , Saxon China Company against the Tea Java Coffee Company and others. Judgment for plaintiff and defendants appeal. The complaint declared upon the common counts, and upon a trade acceptance drawn on the 12th day of December, 1919, presented to and accepted by the defendant, payable to the order of the China Saxon Company, 90 days after date.

Jones, Judge. Petition by the State of Alabama, on the relation of W. C. Braswell against John S. Mooring and the other members of the State Tax Commission for mandamus to require the said State Tax Commission to cause a revaluation of all the real estate in the state of Alabama. Prom a judgment overruling demurrers to the petition, respondents appeal. The state was improperly made the mov-ant in this case.

Jones, Judge. Bill by M. P. Hodnett against J. M. How-ie and others. Erom a decree sustaining demurrers to the bill, complainant appeals. The bill alleges that complainant was indebted to the Howies, and in order to secure said indebtedness executed to them a deed to certain land. It seems tha.t soon after the execution of the deed it was recorded, and the Howies went into possession of the land, and later conveyed portions of it to the parties named above.

A. Steele, Judge. Action by George Huddleston against the Age-Herald Publishing Company. Judgment for plaintiff, and defendant appeals. The plaintiff was not entitled to maintain this action in the circuit court of Blount county. Sections 6110, 6112, Code 1907; 140 Ala. 258, 72 South.' 956; 219 TI. S. 1, 31 Sup. Ct. 212, 55 L. Ed. 65, 21 Ann.

L. Longshore, Judge. Suit by J. G. Avant and others against W. T. Avant and others, to enjoin the foreclosure of a mortgage, to redeem, and for an accounting. From a decree denying relief, complainants appeal. Injunction should have been granted. 89 Ala. 493, 7 South. 810; 181 Ala. 263, 61 South. S04; 191 Ala. 248, 68 South. 1. An accounting was prayed for, and the court erred in not granting it. Counsel discuss the facts, but without further citation of authority.

B. Aird, Judge. Action by W. K. Jones against the City of Birmingham for damages for maintaining a nuisance. From a judgment sustaining demurrers to the complaint, plaintiff suffers a nonsuit, and appeals.

B. Foster, Judge. Action by the Owensboro Wagon Company against the Benton Mercantile Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. The contract was completed by the acceptance of the order, and could not be changed or modified by either party. 13 C. J. 264; 197 Ala. 443, 73 South. 43.

Locke, Judge; Bill by the State of Alabama, on the relation of the Solicitor of Jefferson County, to condemn a Buick automobile, because used in the transportation of prohibited liquor, with claim by Mrs. R. W. Cunningham. From a decree condemning the automobile, claimant appeals. Counsel discuss the evidence, with the insistence that the court .was in error in its judgment of condemnation, but they cite no authority. Brief of counsel did not reach the Re-porter.

.Appeal from Circuit Court, Mobile County; Joel W. Gpldsby, Judge. Bill by Edward Chastang and others against John E. Bogan and another to cancel and annul a deed for fraud. Decree for complainants, and respondents appeal. The burden was on the complainants all the way through; they are parties in interest and have not carried the burden. 172 Ala. 065, 55 South. 293.

Goldsby, Judge. Bill by Rolf Seeberg against Claudia I. Bixler, to specifically enforce a contract for the sale of certain lands made with her intestate. From a decree granting relief, respondent appeals. Counsel discuss the assignments of error, with the insistence that the decree is founded in error, but he cites no authority. Counsel discuss the evidence and the decree of the court, with the insistence that same is correct, but they cite no authority in support thereof.

<p>I. Mortgages <&wkey;>!53 — Prior unrecorded deed1 inoperative against mortgagee without notice.</p> <p>Under Code 1907, § 3383, an unrecorded' deed prior to that to mortgagor is inoperative-against the mortgagee in good faith for a valuable consideration, connecting herself with the legal estate and having no notice, actual or constructive.</p> <p>2'. Mortgages <&wkey;l86(3) — Burden of proof of mortgagee having notice of prior unrecorded: deed stated.</p> <p>Respondents, claiming under an unrecorded1 deed to mortgagor’s wife prior to that to mortgagor, on complainant’s showing that she is a mortgagee for valuable consideration in good faith, have the burden of showing that she had actual or constructive notice.</p> <p>3. Appeal and error &wkey;>l008(3) — Determination of question of fact on depositions and; oral testimony not disturbed, unless clearly wrong.</p> <p>Trial court’s determination of a question, of fact on testimony partly by deposition and. partly oral will not be disturbed, unless clearly-wrong.</p> <p>4. Mortgages 186(5) — Finding on mortgagee having no constructive notice of prior-unrecorded deed supported.</p> <p>Evidence held to support finding that mortgagee had no constructive notice of an unrecorded deed prior to that to mortgagor.</p> <p>5. Descent and distribution <&wkey;>l 19(I)— Heirs, not personally liable for deceased’s debt.</p> <p>Heirs of deceased are not personally liable-for his debt.</p> <p><&wkey;>For other eases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes</p>

Greene, Judge. Bill by Tom Miles against Sallie Miles, to sell certain lots and a house for division. From a decree overruling demurrers to the .bill, respondents appeal. Held: and is still holding, complainant’s part of the said money as trust property for your complainant, said amount being $436.-96.

<p>Appeal from Circuit Court, Jefferson County ; C. B. Smith, Judge.</p> <p>Petition by the State of Alabama, on the relation of J. M. Marsh, to quash the order incorporating the Town of Boyles. Erom a judgment denying the petition and dismissing the same, the relator appeals.</p> <p>The following is the description set out in the petition, as well as the description entered in the order of the judge of probate, creating the corporation:</p> <p>“Eor point of beginning start on the boundary line of Boyles at the southeast corner of section six (C), township seventeen (17), range two (2) west, in Jefferson county, Alabama, thence run west along said section line to the I eastern boundary line of the right of way of ; the main line of the Louisville & Nashville Railroad, thenc'e in a northerly direction along said Louisville & Nashville Railroad eastern boundary line to the northerly bank of Eive Mile creek, thence south westerly along the northerly bank of said creek to the northern line of the southeast quarter of the southwest quarter of section six (6), to township seventeen (17), range (2) west, thence west to the northwest corner of forty (40) -acre tract, thence south along the west line of said southeast quarter of the southwest quarter to the northerly or westerly boundary line of the old Birmingham Mineral Railroad grade, thence in a southwesterly direction along said northerly and westerly boundary line of the old Birmingham Mineral grade to the north line of section seven (7), township seventeen (17), range two (2) west, thence west to the northwest corner of said section seven (7), thence south along the west section line of said section seven (7), and of section eighteen (18), township seventeen (17), -range two (2) west, to the city limits of Birmingham, thence east to the southeast corner of northwest quarter of northwest quarter of said section eighteen (18), thence south along the quarter section lines to the north line of south half of north half of said section eighteen (18), thence east along said line to the southwest corner of tho present town of Inglenook, being the southwest corner of the southeast quarter of southeast quarter of said section eighteen (18), thence north along the western boundary line of the town of Inglenook,' to the south side of Louisville street (Bendale survey), thence west to the eastern boundary line of the right of way of Louisville & Nashville Railroad, thence north along said Louisville & Nashville boundary line to the north side of the Birmingham Waterworks Canal right of way, thence in a northeasterly direction along said right of way to the boundary line of the town of Tarrant city, thence west along said boundary line to the west line of section eight (8), township seventeen (17), range two (2) west, thence north to the point of beginning.” ,</p> <p>Below is a plat indicating the territory referred to herein:</p> <p> </p> <p> TowrvsHlP 17, Raííge Z West. </p> <p>The description of the corporate limit contained a patent ambiguity on its face, and is therefore void. 69 Ala. 140; 142 Ala. 698, 39 South. 92, 110 Am. St. Rep. 55; 142 Ala. 698, 39 South. 92; 177 Ala. 204, 58 South. 905; section 1053, Code 1907.</p> <p>■ Absolute accuracy is not required, substantial compliance being sufficient. 107 Ala. 157, 72 South, 391. The court takes judicial knowledge of the boundaries of the city of Birmingham, Inglenook, and Tarrant City, as being in Jefferson county, and judicially 'knows the boundary. 197 Ala. 157, 72 South. 391.</p>

Grayson, Judge. Action by Milton M. Day against Edwin Seymour and another, as individuals and copartners, for damages for injury to his minor child. Judgment for plaintiff, and defendants appeal. There was no -complaint, and heneé nothing to support the judgment, as is apparent from an examination of 'the record. Counsel also-cite authorities to show that the judgment is void because of failure to serve the other defendant. Brief of counsel did not reach the Reporter.

Action by- Harvey W. Brown, as administrator of the estate of Luther I-I. Good, against the Mobile Electric Company, for •damages for the death of his intestate. Judgment for the plaintiff, and the defendant appeals. The court erred in directing a verdict for tlie defendant. 198 Ala. 623, 73 South. 897; 201 Ala. 630, 79 South. 192; 194 Ala. 338, 70 •South. 7; 175 Ala. 194, 67 South. 23; 196 Ala. 67, 71 South. 422.

Greene, Judge. Action by B. C. Morgan, against the National Hay Company, with garnishment to the First National Bank of Birmingham who answered “indebted,” but suggested the National Bank of Commerce as claimant. Issue was made up between the plaintiff and claimant, and the trial resulted in a judgment for the plaintiff, and claimant appealed. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6.

Petition by the County of Elmore for mandamus to B. K. McMorris, as Circuit Judge, requiring him to strike certain interrogatories propounded to said county. Mandamus is the proper remedy. 203 Ala. 347, 83 South. 71. Elmore county is a municipal corporation, and not subject to the statute providing in general terms for interrogatory to the adverse party. Sections 4049, 4052, Code 1907; Acts 1888-89, p. 121; 109 Mass. 212, 149 App. Div. 491, 134 N. Y. Supp. 50; 175 App.

Application of the State of Alabama, on the relation of its Attorney General, to review and revise the judgment of the said court rendered on the appeal of Ex parte Grady Williams, 18 Ala. App. 297, 91 South. 914. The plea of former jeopardy cannot be raised by writ of habeas corpus. 138 Ala. GS, 35 South. 39; 21 Cyc. 305. Petitioner’s remedy was by appeal. 157 Ala. 1, 47 South. 1025; 140 Ala. 172, 37 South. 250; 112 Ala. 210, 21 South. 371.

K. McMorris, Judge. Suit by Gaston Scott against William Viz-ard and another. Decree for defendants, and complainant appeals. The agreement was sufficient to create an express trust, and it was necessary to make further offer to do equity when the agreement is shown to have been complied with. Section 3412, Code 1907; The statute of limitations applies to suits in equity. Section 3091, Code 1907.

<p>1. Frauds, statute of <&wkey;>159 — Whether materials furnished on credit of building owner or contractor held for jury.</p> <p>Whether a materialman furnished materials for a building on the credit of the owner or of the contractor held for the jury.</p> <p>2. Frauds, statute of &wkey;>23(3) — Promise to see that materialman got his money to be regarded as a promise to pay promisor’s own debt.</p> <p>A promise to one furnishing material to a contractor to see that he got his money and to keep it out of the contract may be regarded as a promise to pay the promisor’s own debt in a particular way, out of a particular fund, and not as a promise to pay the debt of the contractor, obnoxious to the statute.</p> <p>3. Frauds, statute of <&wkey; 152(2) — Statute waived unless specially pleaded.</p> <p>The statute is waived unless specially pleaded.</p> <p>4. Frauds, statute of <&wkey;150(3) — May be pleaded by demurrer in equity when facts appear on face of pleading.</p> <p>In equity, when the facts constituting the defense of the statute appear on the face of the bill, such defense may be made by demurrer.</p> <p>5. Pleading <@=»370 — Cause may be tried on issues not formally made in pleadings.</p> <p>Parties may try their cause on issues not formally made in the pleadings.</p> <p>6. Appeal and error <&wkey;197(1)— Parties trying cause on issues not formally pleaded may not shift ground in Supreme Court. '</p> <p>Where the cause is tried on issues not formally made in the pleadings, the parties may not shift their ground in the Supreme Court.</p> <p>7. Appeal and error &wkey;>!73(6) — Statute of frauds cannot be pleaded for first time in Supreme Court though evidence below was material on such issue.</p> <p>In an action for the price of materials furnished for the construction of a building, where no question was made on the trial as to the statute of frauds, though evidence as to whether plaintiff extended credit to the owner or the contractor would have been relevant and material on such issue, as well as the general issue, had the statute been pleaded, such defense cannot be pleaded in the Supreme Court.</p> <p>8. Estoppel &wkey;>IIO — Must be pleaded.</p> <p>Both in law and equity, an estoppel in pais must be pleaded, where there is an opportunity to plead.</p> <p>9. Estoppel <&wkey;78(5) —Materialman held not estopped from asserting claim against owner's estate by” accepting assignment of contractor’s claim for benefit of lien creditors.</p> <p>One furnishing materials for the construction of a building was not estopped to recover the price thereof from the owner’s estate by accepting an assignment of the contractor’s claim against the owner or building for the benefit of lien creditors and the pro rata product of the assignment as a credit on his claim, even if such arrangement were not made at the pxecutor’s request on the express understanding that it should not prejudice such claim; all the parties having treated the building as their debtor.</p> <p>10. Estoppel <&wkey;>ll9 — Whether materialman was estopped to assert claim against owner’s estate held for jury.</p> <p>Whether one furnishing materials for the construction of a building was estopped from asserting his claim for the price thereof against the executor of the owner’s estate, by the facts that he charged the materials to and accepted a payment from the contractor, accepted an assignment of the latter’s claim against the owner for the benefit of creditors, to whose liens he looked for compensation, and addressed his bid to the contractor after an agreement with the owner as to payment, held for the jury.</p> <p>11. Evidence <&wkey;271 (2) — Materialman’s testimony as to refusal to accept assignment of contractor’s claim against owner if it would affect his claim against latter held not incompetent as self-serving.</p> <p>In an action for the price of materials furnished for the construction of a building on the faith of the owner’s promise to see that plaintiff got his money from the contractor, plaintiff’s testimony that he told a meeting of lien creditors, for whose benefit he accepted an assignment of the contractor’s claim against the owner, that he would not act as trustee thereunder if it would affect his claim against the owner, was not incompetent as self-serving.</p> <p>12. Husband and wife &wkey;»138(2) — Testimony as to building owner’s age and enfeebled condition held admissible in action for price of materials furnished on her husbands order.</p> <p>In an action for materials furnished for the construction of a building on the faith of the owner’s promise, through her husband as her authorized agent, to see that plaintiff got his money, the court did not err in permitting a question as to the owner’s age; the answer, which tended to show she was old and feeble, shedding light on plaintiff’s contention that her husband, who was young and vigorous, acted as her agent.</p> <p><§c^For other oases see same topic and KEY-NÜMBBR in all Key-Numbered Digests and Indexes</p>

Pugh, Judge. Action by J. F. Prickett against the City of Birmingham for damages for maintaining a nuisance. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Most of the facts on which the opinion is rested sufficiently appear therefrom.

<p>Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.</p> <p>Bill by Patrick H. McGlinn against J. K. Kyser and others to sell land for division. From a decree granting the relief prayed, respondents appeal.</p> <p>The facts stated in the bill are as follows:</p> <p>That complainant owns an undivided one-third interest in certain lands described in the bill, and that the respondents Kyser and Waters own an undivided two-thirds interest in a described portion of the land, and that Phillip Lee owns a two-thirds interest in certain other portions of the land. That the land is incapable of division without a sale. The answer sets up that the respondents own in severalty the several tracts of land described in the bill, and denies that complainant has any interest in said land. And it is averred that on the 8th day of June, 1897, George McDonald and his wife, Gertrude McDonald, sold and conveyed all of the land described in the bill of complaint to one G. R. Farnham by deed which purported to convey the entire title thereto. A true and correct copy of said deed, as recorded in Deed Book 49, at page 537, probate records of Monroe county, Ala., marked “Exhibit A,” is hereto attached. That said Farnham, personally or by and through tenants, went into possession of said described lands under said deed and held and claimed the same as his own openly, notoriously, continuously, exclusively, and adversely until, to wit, the 13th day of December, 1904, when he sold and conveyed said land to W. H. Waters by deed which purported to convey the entire title. A true and correct copy of said deed, as recorded in Deed Book 75, at page 452, probate records of said county, marked “Exhibit B” is hereto attached. That the said W. H. Waters personally or by and through tenants went into possession of the said described lands under said deed and held and claimed the same as his own openly, notoriously, continuously, exclusively, and adversely until, to wit, the 27th day of October, 1905, when he sold and conveyed the southeast quarter of the northeast quarter of section 10, and five acres in the northwest % of northwest % of section 11, in township 7 north, range 9 east, to P. W. Waters by deed which purported to convey the entire title to said portion of said land. A true and correct copy of said deed as recorded in Deed Book 59 at page 69, probate records of said county, marked “Exhibit 0,” is hereto attached. That the said I5. W. Waters, who is one of the respondents in this case, went into possession, of said land under said deed and has held 'and claimed the same as his own openly, notoriously, continuously, exclusively, and adversely until this suit was filed, and is still so claiming and holding the same. That he and those under whom he claims title have been in the open, notorious, continuous, exclusive, and adverse possession of said land for the past 25 years.</p> <p>That on, to wit, the 13th day of December, 1902, the said W. H. Waters and wife, M. J. Waters, sold and conveyed the southwest quarter of the northeast quarter of section 10, township 7, range 9, to Monk Lee by deed which purported to convey the entire title. A copy of said deed as recorded in Deed Book 58, at page 379, probate records of said county, marked “Exhibit D,” is hereto attached. That the said Monk Lee went into possession of said land under said deed and held and claimed the same as his own openly, notoriously continuously, exclusively, and adversely until, to wit, during the year 1913, when he sold and conveyed the same to Phillip Lee, who is one of the respondents in this case, by deed which purports to convey the entire title. That this respondent went into possession of said land under said deed and held and claimed the same as his own openly, notoriously, continuously, exclusively, and adversely until this suit was filed, and is still so claiming and holding same. That he (respondent) and those under whom he claims title have been in the open, notorious, continuous, exclusive, and adverse possession of said land for the past 25 years.</p> <p>That on, to wit, the 27th day of October, 1905, the said W. H. Waters and wife, M. J. Waters, sold and conveyed the north half of the northeast quarter of section 10, and five acres in the northwest corner, of the northwest % of northwest % of section 11, in township 7, range 9 east, to L. L. Brantley, by deed which purported to convey the entire title. A true and correct copy of said deed as recorded in Deed Book 59, at page 68, probate records of said county, marked “Exhibit E,” is hereto attached. That the said Brantley personally or by and through tenants went into possession of said land under said deed and held and claimed the same as his own openly, notoriously, exclusively, continuously, and adversely, until, to wit, 1st day of April, 1907, when he sold and conveyed the same to James K. Kyser, one of the respondents in this cause, by deed which purports to convey the entire title. A copy of-said deed as recorded in Deed Book 59, at page 253, probate records of said county, marked “Exhibit E,” is hereto attached. That on, to wit, second day of March, 1917, the said James K. Kyser sold and conveyed said property to P. W. Waters (one of the respondents in this cause) by deed which purports to convey the entire title. A true and correct copy of said deed as recorded in Deed Book 75, at page 236, probate records of said county, marked “Exhibit G,” is hereto attached. That this respondent went into possession of said land under said deed and has held and claimed the same as his own openly, notoriously, exclusively, continuously, and adversely until this suit was filed, and is still so claiming and holding the same. That respondent and those under whom he claims title have been in the open, notorious, continuous, exclusive, and adverse possession of said land for the past 25 years, or from June 8, 1897.</p> <p>Respondents ask that said mentioned exhibits may be taken and considered as a part of this answer and cross-bill.</p> <p>The answer was made a cross-bill with additional averments necessary to constitute a bill for removing cloud from title, etc.,</p> <p>The proof was upon the appellee to show that his father was dead. 49 Ala. 156; 2S Md. 497, 92 Am. Dec. 704-708; 17 O. J. 1167. Where the bar of the statute of limitations has begun to run for the ancestor before his death, it also runs for minors acquiring their right by descent. 175 Ala. 309, 57 South. 720; 112 Ala. 256, 20 South. 524. Twenty years’ continuous possession is not defeated by personal disabilities. 72 Ala. 389. Homestead exemption to the widow in this ease is governed by section 2821, Code 1876, but the manner of allotting it is governed by the law in force at the time of allotment. 81 Ala. 381, 2 South. 443. The homestead was abandoned by the widow. 97 ■ Ala. 560, 11 South. 841; 94 Ala. 481, 10 South. 436; 166 Ala. 395, 52 South. 73; 204 Ala. 50, 85 South. 23.</p> <p>The estate of the widow was a life estate, and after its termination the title and right of possession descended to the heirs of the deceased owner. 123 Ala. 541, 26 South. 285.; 101 Ala. 375, 13 South. 568; 103 Ala. 614, 15 South. 897. Although Jeremiah McGlinn was entitled to possession jointly, so long as he remained a minor, his minority ceased upon his becoming of age. 68 Ala. 365 ; 55 Ala. 322. Between his attainment of his majority and the death of his mother in 1914, his right of possession ceased, and the statute could not run against him until 1914; hence any abandonment by the widow of homestead rights did not start the statute to running against Jeremiah. 118 Ala. 209, 23 South. 698; 127 Ala. 301, 28 South. 713.</p>

<p>Appeal from Circuit Court, Mobile County; Oaude A. Grayson, Judge.</p> <p>Bill by Elizabeth G. Zadek and others against the Merchants’ Bank of Mobile and •others, for discovery and an accounting as to the affairs of the E. O. Zadek Jewelry ■Company. Prom a decree overruling demurrers to the bill, respondents appeal.</p> <p>The bill is multifarious, and the demurrers thereto should have been sustained. 203 Ala. 518, 84 South. 715; 204 Ala. 390, 85 ■South. 552.</p> <p>The bill conformed to the former opinion rendered' in this case, and was not subject ■to the demurrer. 1 Brickell’s Dig. 719, 721; authorities cited by appellant. The assignments of error are not sufficient to raise the proposition. 188 Ala. 218, 66 South. 434; 187 Ala. 480, 65 South. 397; 151 Ala. 316, 44 South. 53; 107 Ala. 412, 18 South. 170, 54 Am. St. Rep. 101; 92 Alá. 630, 9 South. 738; 57 Ala. 365; 75 Ala. 285; 85 Ala. 41, 4 •South. 613.</p>

M. Pitts, Special Judge. Banks S. Talmadge, suing as administrator, recovered judgment for the wrongful death of his intestate; and defendants the Alabama Power Company and the Selma Lighting Company, appeal.

Goldsby, Judge. Action by James E. Tamsett against Walker D. Hines, as Director General of Railroads, operating the Southern Railway Company, for damages for failure to deliver a carload of household goods. Judgment' for defendant, and plaintiff appeals. The plaintiff’s special replication No. 2, for defendant’s plea No. 1, was sufficient,- and the court erred in sustaining the demurrers thereto. 120 Ala. 57, 23 South. 793 ; 66 Aia. 167, 41 Am. Rep. 749; 1 Ala.

Clair County; Woodson J. Martin, Judge. Action by Mary Williams, as administra-trix de bonis non of the estate of Mike Harris, deceased, against the Alabama Fuel & Iron Company, for damages for the death of her intestate. Judgment for the plaintiff, and the defendant appeals. The suit was originally begun by Addie Haywood, as administratrix.

M. Miller, Judge. Action by Charles C. Clay against Joseph Cummins, to recover commissions on the sale of real estate. Judgment for the defendant, and the plaintiff appeals. See former appeal in 'this case, reported in 201 Ala. at page 34, 77 South, at page 328.

<p>I. Pleading &wkey;>34(4) — Construed most strongly against pleader.</p> <p>A pleading is construed most strongly against the pleader.</p> <p>'2. Carriers <t&wkey;3l4(1) — Count failing to allege that ear was operated for carriage of passengers, or that plaintiff hoarding it intended to become passenger is defective.</p> <p>In an action for personal injuries to one boarding a car, a count which fails to allege that the car was being operated for the carriage of passengers, that defendant is a common carrier of passengers for hire, or that plaintiff was a passenger or intended to become such, is ■defective, in that it fails to show a relationship between the parties out of which a duty arose to plaintiff.</p> <p>3. Negligence <&wkey;l 10 — Complaint must show duty.</p> <p>In actions for personal injuries, the complaint should state facts from which a duty to plaintiff from defendant follows as a matter of law.</p> <p>4. Appeal and error &wkey;>l 170(5) — Rule-as to affirmance despite omitted averments held inapplicable in absence of clear proof of, or specific instructions as to, facts not averred.</p> <p>In the absence of clear and specific proof ■of, or specific instructions as to, facts on which omitted averments, in an action for injuries to ■one boarding a street car, as to defendant’s breach of a duty owed plaintiff as a prospective passenger, must rest, Supreme Court rule 45 (61 South, is 1) is inapplicable, and a judgment for plaintiff must be reversed, though the relationship of carrier and passenger and the •duty arising therefrom was assumed.</p> <p>(g^Fcr other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

I. Jones, Judge. Bill by W. L. and J. B. Ennis, as executors of the last will and testament of Robert En-nis, deceased, against Lucille E. Little and others, to interpret the will and to ascertain especially if certain items ought to he treated as advancements to Lucille E. Little and deducted from her portion of the estate, and to reinove the administration from the probate to the circuit court.

<p>Appeal from Circuit Court, Jefferson County; R. V. Evans, Judge.</p> <p>Action by the Starr Piano Company against M. Zavelo, in detinue for an automobile. There was a directed verdict for the defendant, which on motion of plaintiff was set aside, and new trial avoided, from which latter judgment the defendant appeals.</p> <p>The court erred in granting a new trial. S4 Ala. 103, 4 South. 235; 87 Ala. 344, 6 South. 122, 5 L. R. A. 100. Counsel discuss other matters not necessary to be here set out, since the opinion does not treat of them.</p> <p>The court exercised a proper discretion in granting the now trial. 18, Ala. App. 78, SO South. 88.</p>

<p>1. Injunction <&wkey;62(2) — Equity will prevent violation of lease in proper case.</p> <p>Equity will intervene in a proper case for the protection of the lessor, or of the lessee, against a violation of the covenants of the lease, thus in effect enforcing specific performance of the contract.</p> <p>2. Injunction <&wkey;62(2) — -Remedy by dispossession for subletting is not adequate.</p> <p>The lessor’s remedy for a subletting of-the premises by forfeiting the lease as permitted by its terms, and dispossessing his lessee, thereby losing the advantages of his lease when perhaps it will be difficult to procure another tenant, is not adequate, so that equity can enjoin the subletting.</p> <p>3. Injunction <§=>62(2) — Equity to restrain subletting is not aided by allegations as to use of the premises.</p> <p>The equity of a lessor to restrain a subletting of the premises contrary to the terms of the lease is not aided by allegations of the bill that the occupant of one portion of the premises under the subletting had engaged in business which competed with that of the occupant of the other portion, thereby diminishing the value of other portion for that business, which did not affect in any way the legal rights of the lessor.</p> <p>4. Injunction <@=1 14(2) — Agent of lessor is not proper complainant to enforce lease.</p> <p>One who acted merely as agent for the lessors in making the lease has no such interest as permits his joinder as party complainant in a bill to enforce the covenant of the lease against subletting.</p> <p>5. Injunction <@=114(2) — Joint lessor is necessary party to bill to enforce lease.</p> <p>Where premises had originally been leased to complainant and another, a bill by complainant to enforce a clause in a sublease of the premises against further subletting, which did not show that complainant had acquired the interest of his colessee under the original lease, was defective for failure to join the colessee as a party complainant.</p> <p>6. Injunction <&wkey;l 18(3) — Subtenant held necessary party to suit to enjoin occupation by others in violation of lease.</p> <p>In a suit to enjoin occupancy of premises by persons under a subtenant of complainants, based on a violation of provision against subletting in the lease to the subtenant, the subtenant was a necessary party defendant.</p> <p><gz=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

B. Aird, Judge. Bill by Mary Lyman Stone Labry against Hattie Lyman Powell, as executrix, and others, for the construction of the will of W. E.. Lyman, deceased, and for removal of the administration of the estate from the probate to the circuit court. Prom a decree overruling the demurrers to the bill as amended, respondents appeal.

Pugh, Judge. Ejectment by the Stacy Land Company .against the Washington Realty Company and others. Judgment for plaintiff, and the defendant named appeals. The court judicially knows of the location of Elyton, Alabama, and therefore is bound to know that these lots could not be in Ely-ton, and that the description is indefinite. 197 Ala. 157, 72 South. 391; 199 Ala. 538, 74 South. 469; 23 C. J. 1875, 1886.

Foster, Judge. Bill by M. C. McAdams & Company against M. V. Smith, Bettie Smith, and J. A. Guin, to declare certain deeds fraudulent and void, and to condemn the property therein conveyed to the payment of a judgment belonging to the complainant. From a decree granting the relief prayed as to the deed to Bettie Smith and denying it as to the deed to Guin, Bettie Smith appeals.

Y. Evans, Judge. Action by the Consolidated Motor Company of Alabama against Maggie Malik, on a sale’s contract. From a judgment for the plaintiff, but without finding a waiver of exemption against the defendant, the plaintiff appeals.

Locke, Judge. Bill by Mennon Tierce, as administrator, against- H. A. Knox, to enforce upon real estate the lien of a recorded judgment. Prom a decree sustaining demurrers to the bill and dismissing it, complainant appeals. The bill contained equity, and the court erred in sustaining the demurrer and dismissing it.

J. Curtis, Judge. Bill by Mattie South and others against Mary E. Pinion and another, to annul a deed, to determine the interests of the party tb the land described, and to sell the land for division. From a decree sustaining demurrers to the bill, complainants appeal.

J. Curtis, Judge. Bill by D. T. Otts against A. It. Sheffield to acquire title to land or to enforce an equitable estoppel. From a decree denying relief and dismissing the bill, complainant appeals. Counsel discusses the evidence with the insistence that it raises an equitable estoppel, but cites no authority in support thereof. Brief of counsel did not reach the Reporter.

E. Port, Judge. Price Hutchens, alias, etc,, was convicted of murder in the second degree, and he appeals.

C. B. Gwin, Judge. Bill by Z. Cross and others against W. L. Martin and T. J. Martin individually and J. T. Martin, as administrator, and others, to prohibit the carrying out of certain decrees and to enjoin and restrain the respondents from enforcing said decrees. From a decree dismissing the bill, complainants appeal.

Greene, Judge. Action by M. V. Henry, as Treasurer of Jefferson County, against William J. Wal-drop, as Clerk, to recover of him the dog tax fees received and retained by the clerk. Judgment for the plaintiff, and the defendant appeals. Hie fees retained were the xiroperty of the clerk of the circuit court. Acts 1919, p. 1077; 10 Ala.-App. 639, 65 South. 706 ; 63 Ela. 425, 58 South. 785; 4 Ala. App. 279, 58 South. 944 ; 5 Ala. App. 259, 59 South. 737; 61 Ala. 232; 62 Ala. 39.

C. B. Gwin, Judge. Lon Tyler was convicted of murder in the first degree, and he appeals. The objection to and motion to quash the indictment was based first on the insufficiency of legal testimony for the grand jury to authorize the finding in the same, but this ground was abandoned.

<p>Appeal from Circuit Court, Lowndes County; A. E. Gamble, Judge.</p> <p>Bill by A. R. Wild against W. B. Crtim to purge a transaction of usury and to redeem from mortgage foreclosure. From a decree dismissing the bill, complainant appeals.</p> <p>The original mortgage was .usurious and void. Section 4623, Code 1907; 204 Ala. 93, 85 South. 375; 201 Ala. 462, 78 South. 840; 200 Ala. 672, 77 South. 46. The renewal mortgage was usurious and void. 79 Ala. 76; 83 Ala. 323, 3 South. 854; 39 C'yc. 994; 206 Ala. 611, 91 South. 258.</p> <p>There was no usury in the mortgages. 200 Ala. 129, 75 South. 577; 200 Ala. 619, 76 South. 977 ; 201 Ala. 462, 78 South. 840; 196 Ala. 230, 72 South. 87. If the original mortgage was free from usury, it will not become tainted by a subsequent agreement to pay more than the legal rate. 201 Ala. 262, 77 South. 675; 143 Ala. 234, 38 South. 916, 5 Ann. C(is. 55.</p>

Leigh, Judge. ‘ Action by L. R. James against John Barton Payne, as Director General, operating the Louisville & Nashville Railroad Company, for damages to a carload of peaches. Judgment for the plaintiff, and the defendant appeals. The following are the charges referred to as having been refused to the defendant: (2) I charge you, gentlemen of the jury, that William James was not overseeing the loading of the car in question as the agent of the defendant.

Jones, Judge. Bill by A. G. Alstork, as beneficiary and executor of the estate of John Wesley Al-stork, deceased, against Frank Curry and others, to remove the administration from the probate court to the circuit court in equity, and. for the construction of a will. From a decree rendered, complainant appeals. Chancery has none other than statutory jurisdiction to order a sale of decedent’s land. 159 Ala. 555, 18 South. 798; 164 Ala. 390, 51 South. 389; Sim’s Chan.

<p>1. Deeds <&wkey;94, 99 — Ordinarily deed merges contract; in view of recitals in a deed of trust subsequent to conveyance, held that the court should look to contract, trust deed, and deed in arriving at parties’ rights.</p> <p>Ordinarily, in the absence of fraud or mistake, when a contract to convey has been consummated by execution and delivery of a deed, the contract becomes functus officio, and the deed becomes the sole memorial of the agreement; however, where a deed of trust between the parties subsequent to the conveyance reiterates the relevant stipulations of the contract, in arriving at the rights of the parties, the court may look to the three instruments.</p> <p>2. Covenants <&wkey;i93— Term “failure of title” used in contract held to mean either total or partial failure.</p> <p>In conveyance of a large tract of land providing per acre rates for settlement in case of “failure of title,” held that the term “failure of title” means either a total or partial failure.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Failure.]</p> <p>3. Covenants t&wkey; 140 — Purchaser’s recovery of purchase money works rescission and estops purchaser from setting up deed.</p> <p>Recovery of purchase money works a rescission, and if the purchaser recovers damages for breach of the covenants of seisin or on the ground that the vendor had no title, it es-tops the purchaser from afterwards setting up the deed of conveyance against the grantor.</p> <p>4. Covenants <&wkey;38 — Purchaser’s right to an unbroken tract held merged in agreement fixing per acre value in settlement on failure of title.</p> <p>Purchaser’s right to have his land in one unbroken tract was merged into an agreement that each acre would be valued at a fixed sum for purposes of settlement in case of failure of title.</p> <p>5. Covenants <&wkey;>l07 — Purchaser held not entitled to total purchase price without offering to return land on partial failure of title.</p> <p>Where a conveyance provides for a refund of the entire purchase money in the case of “each acre of land the title to which shall fail,” meaning prima facie at least a total failure, purchaser was not entitled to recover the entire purchase price for partial failure without offering to return the land.</p> <p>6. Covenants <&wkey;!24 — On partial failure of title, measure of damages held to be diminished value because of incumbrances, notwithstanding provision as to value in ease of failure of title.</p> <p>On demurrer to purchaser’s bill for abatement of price, held that in case of incumbranc-es or defects less than total failure of title, purchaser was remitted to its remedy on the covenant unaffected by provisions as to value to be placed in settlement upon each acre for purposes of settlement in case of failure of title, and recoverable damages must be measured by the diminished value of the title conveyed on account of the incumbrance or defect averred.</p> <p>7. Covenants &wkey;>III6 — Purchaser’s bill for abatement of price for failure of title held maintainable to recover for defects while retaining such title as received.</p> <p>On demurrer to purchaser’s bill for abatement of price for failure of title to some of the land and for an accounting, though purchaser misconceives the proper measure of damages, it may maintain its bill to recover compensation for defects in the title while retaining such title, as it has received, where the bill supports such theory, especially where it is averred that defendants are nonresidents scattered through several states, an averment serving in a case of this sort all purposes of an averment of grantor’s insolvency.</p> <p>8. Covenants <&wkey;>39 — Purchaser’s knowledge or opportunity to know of defects averred held not to prevent set-off.</p> <p>On demurrer to purchaser’s bill for abatement of price for failure of title, the fact that the purchaser knew or had full opportunity to know the defects averred will not prevent the establishment of a set-off.</p> <p>9. Appeal and error <&wkey;!93(6) — Formal defect cannot be availed of where not taken in trial ✓ court.</p> <p>On demurrer to purchaser’s bill for abatement of price for failure of title, an objection that in an action on covenant of warranty of title breach must be set forth with particularity, being a formal defect, cannot be availed of on appeal, where not taken in the trial court.</p> <p>®=sPor other casos see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Bill by Frederick G. Bromberg, trustee, against Sarah E. Hoffman and others, for compensation as trustee in the handling of certain bonds. From the decree, plaintiff appeals. Bill by appellant against appellee, seeking to have the court of equity appoint a trustee for six railroad bonds held’ by him, and to deposit the same into court, and to be allowed compensation as trustee in connection therewith.

Bill by the State of Alabama, on the relation of Ludlow Elmore, City Attorney for the City of Montgomery, against W. Snyder, for the condemnation of a Buick automobile, because used in transporting prohibited liquor, with claim thereto interposed by Sinn Cohen. Erom a decree condemning the automobile, claimant appeals. The court erred in the judgment rendered. 203 Ala. 90, 82 South. 104. Brief of counsel did not reach the Reporter.

B. Smith, Judge. Bill by Atkis Cesar and others against Jennie W. Virgin and others to enjoin an attempted forfeiture of a lease and a dis-possessory action. From a decree denying relief, complainants appealed.

Leigh, Judge. Bill by Jasper W. Fowler against Millie E. Stacey to perform a deed. From a decree dismissing the bill, complainant appeals. Complainant was not guilty of laches as mere lapse of time does not constitute lach-es, and complainant, being in possession of the property, need not take action until his right of possession is disputed. 34 Cyc. 954; 21 C. J. 221; 122 Ala. 297, 25 South. 216; 129 Ala. 619, 30 South. 34, 87 Am. St. Rep.

<p>I.Criminal lav; <&wkey;>l035(6) — Objection to order for venue not raised in court below not reviewed.</p> <p>Where no complaint was made in the court below that the venire for the trial was fixed at “65 persons, being 50 persons drawn as regular jurors for the fourth week of February term, and 15 persons -whose names are now drawn by the court from the jury box of the county,” was not as required by Gen. Acts 1919, p. 1041, amending Gen. Acts 1909, p. 317, § 32, under Supreme Court Rule 27 (198 Ala. xv, 77 South., vii), the objections will be considered waived.</p> <p>2. Homicide <&wkey;>l66(IO) — Evidence tending to-show motive relevant.</p> <p>In a murder prosecution, where defendant testified that he went to his barn and found’ that it had been broken into, and went to search for the person who did it, there was no error in, overruling defendant’s objection to the state’s question, “You went there after some beer, didn’t you?” the question indicating that defendant by going to the barn discovered the beer was gone, and his disappointment in not finding- it may have increased or caused his aggravation and produced a motive for the alleged' offense.</p> <p>3. Homicide <@=>156(1) — Evidence indicating animus, contradicting defendant, properly admitted.</p> <p>Where the state’s theory was that the homicide was intentional and malicious under circumstances constituting murder, and the defendant’s theory was that the killing was unintentional and accidental, there was no error in submitting to the jury evidence of transactions indicating defendant’s animus closely connected in time with the shooting, contradicting defendant’s evidence.</p> <p>4. Criminal law <&wkey;829(l) — No error in refusing charge when covered by court’s oral, charge.</p> <p>Where the oral charge in a murder pro's-ecution covered all the principles and rules of law applicable to the testimony, in view of' Oode 1907, § 5364, as amended by Gen. Acts-1915, p. 815, no error could be predicated on a refused written charge if it stated a correct rule of law applicable to the case.</p> <p><®=>For other eases see samé topic and KEY-NUMBEIi in all Key-Numbered Digests and Indexes</p>

<p>1. Shipping <&wkey; 108 —Quotation of rate for transportation by barges and shipper’s acceptance held to make a binding contract.</p> <p>Where Director General of Railroads in letter to shipper of coal quoted certain rate for transportation of specified amount of coal by barges between two points, and the shipper by letter to railroad stated that rate so quoted was satisfactory, and that the railroad would •he advised in due time when shipper would be ready for its barges, there was a complete con-. tract requiring the railroad to furnish the barges, though shipper inquired in its letter as to the through rate from the mine to the: point of destination involving transportation by rail to point where coal was to be loaded on barges, such inquiry not constituting a counter offer as a rejection of the original offer, since the rate by rail was fixed by law, and the only proper subject of special contract being the transportation of the coal by the barges.</p> <p>2. Shipping <&wkey;>l08 — Performance of contract to furnish barges within a reasonable time implied in absence of stipulation fixing time.</p> <p>Where a contract to furnish barges for the transportation of coal did not fix the time within which the service was to he performed, the law contemplates performance within a reasonable time.</p> <p>3. Shipping <&wkey; 108 —Carrier contracting to transport coal from Mobile without specifying place of loading was required to take cargo at any reasonable place in the harbor.</p> <p>Where a contract to transport specified amount of coal by barges from Mobile to specified point did not specify the place for loading, it was the carrier’s duty to take the cargo at any reasonable accessible place in the harbor of Mobile that might be designated by the shipper.</p> <p>4. Railroads t&wkey;5|/2, New, voi. SA Key-No. Series-Director General subject to act to regulate commerce.</p> <p>The Director General of Railroads was subject to the act to regulate commerce (U. S. Gomp. St. § 8563 et seq.), and all the rules and regulations of the Interstate Commerce Commission, except in so far as inconsistent with the Federal Control Act (U. S. Gomp. St. 1918, U. S. Oomp. St. Ann. Supp. 1919, 3115%a-3115%p).</p> <p>5. Shipping &wkey;>3(/2, New, voi. 8A Key-No. Series-Federal manager appointed by Director General of Railroads held authorized to make contract for transportation of specified amount of coal by barges.</p> <p>Under Federal Control Act, § 6 (U. S. Comp. St. 1918, U. S. Oomp. St. Ann. Supp. 1919, § 3115%f), and General Order of the Director General of Railroads, No. 35, appointing a federal manager of Mississippi and Warrior AVaterways for the United States Railroad Administration to have charge of the construction and acquisition of equipment for use upon -the Warrior river between the Alabama coal fields and Mobile and upon the Mississippi Sound and connecting waters between Mobile and New Orleans, the federal manager so appointed had authority to make contract for the transportation of coal from Mobile to Ft. Morgan by barges.</p> <p>6. Shipping <&wkey;> 108 — Measure of damages for Director General of Railroad’s breach of contract to transport specified amount of coal by barges stated.</p> <p>Shipper suing Director General of Railroads for breach of contract to transport specified amount of coal by barges at agreed rate could recover the difference between the cost of transporting the coal at the agreed rate and the cost reasonably incurred in procuring a substitutionary performance.</p> <p>7. Shipping <&wkey;l08— In shipper’s action for failure to transport specified amount of coal by barges, carrier could show contract for delivery of coal had been canceled as to coal not delivered.</p> <p>In shipper’s action for breach of contract to transport specified amount of coal by barges, in which the shipper testified that he had procured a postponement of the delivery of a portion of the coal until certain time, but that no delivery had ever been made, the carrier was entitled to show that the shipper’s contract had been canceled as to the coal not so delivered, and that no delivery could ever be made under the contract.</p> <p>8. Shipping <&wkey;188 — Shipper suing for breach of contract to transport coal by barges could not recover for coal not transported by other means without showing that by reasonable diligence such coal could not he delivered.</p> <p>In shipper’s action for breach of contract to transport specified amount of coal by barges at specified rate, where only a portion of the specified amount of coal liad been delivered by other means, the shijjper couid not recover damages for breach of contract to transport the coal not so transported ,by other means, in. the absence of a showing that the shipper had been unable, by the exercise of reasonable diligence, to deliver the balance of such coal not transported, since in the absence of such a showing such damages were speculative.</p> <p>ig^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Brickell, Judge. Action by William B. Wood against D. Carson Finney, brought originally to the law docket, and on motion of the defendant carried to the equity docket, because the accounts were mutual, complicated, and of an equitable nature. Final decree was rendered, which on motion of the respondent was later set aside, and from the decretal order setting aside the final' decree the complainant appeals.

A. Grayson, Judge. Action by Mary ID. McDonnell against the Mobile Light & Railroad Company, for damages for injuries to an automobile. Judgment for the plftintiff, and the defendant appeals. As a common averment to each count of complaint, and as a part thereof, plaintiff avers as follows: “On, to wit, the 7th day of June, 1920, the defendant owned a street railroad, some of the tracks whereof were built upon and along the public streets of the city of Mobile.

Goldsby, Judge. Action by Zimmern’s Coal Company against the Southern Railway for conversion of coal in transit. Judgment for the plaintiff for an insufficient amount, and be appeals. The measure of damages was the value of the coal at Pensacola at the time of the conversion, less the freight. 191 N. Y. 392, 84 N. E. 295, 15 L. R. A. (N. S.) 1126, 323 Am. St. Rep. 600; 101 Mo.

<p>1. Appeal and error <&wkey;l058(2) — Refusal to admit competent testimony made harmless by admission of similar evidence.</p> <p>In an action for damages against a railroad for causing fire by sparks from engine, the error, if any, in refusal to admit evidence as to whether the engine was emitting more or less sparks than usual trains was rendered harmless by subsequent testimony of same witness that sparks were of unusual size and amount.</p> <p>2. Evidence <@=o558(6) — Sustaining objections to hypothetical questions not based on evidence on cross-examination held not error.</p> <p>Hypothetical questions should be based on evidence or tendency of evidence in the case, and, when they are not, the court will not be put in error when objections to such questions, even in cross-examination, are sustained.</p> <p>3. Trial <&wkey;>41 (5) — Admission of evidence of experts present in courtroom against exclusion order not error.</p> <p>Where rule required all witnesses to remain out of the courtroom during the examination of witnesses, and six expert witnesses who knew nothing of the facts in issue for the defendant were in the courtroom and heard the witnesses for plaintiff testify, and subsequently were permitted to testify, held that, where the record does not show any fact indicating an abuse of the discretion of the court and any injury to the plaintiffs, the court’s ruling was not error.</p> <p>4. Witnesses <©=3379(4) — Assessment sheet admissible to contradict owner’s testimony as to value of buildings destroyed by fire.</p> <p>Where, in an action for damages against a railroad for the burning of buildings caused by sparks from a passing engine, one of plaintiffs testified as to the value of buildings, an assessment sheet showing the assessed valuation of the building’s and sworn to by him was admissible as tending to contradict his direct testimony.</p> <p>5. Evidence <&wkey;>358 — Map showing location of buildings destroyed by fire with reference to railroad track held admissible.</p> <p>In an action against a railroad for the burning of buildings caused by a spark from a passing engine, a map shown to be a correct copy of the surveyor’s map on record of the land on which the burned buildings had been located and the location of the property burned, with reference to a railroad track of defendant being identified by witnesses on tbe map as being correct,, was admissible.</p> <p><S=3ffor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>6. Evidence <&wkey;>353(2) — Deeds conveying property opon which buildings burned by railroad located held admissible.'</p> <p>In an action against a railroad for damages for burning of buildings caused by a spark from a passing engine, a deed describing certain lands and stating that the ginhouse and machinery were reserved, when properly executed, acknowledged, and recorded, is admissible in evidence for the purpose of identifying- the property described in the assessment sheet.</p> <p>7. Railroads <&wkey;>480(2) — Instructions held erroneous as misplacing burden of proof of negligent fire.</p> <p>In an action for damages by fire caused by sparks from a passing locomotive, charges to the effect that plaintiff could not recover unless the jury found that the sparks were due to the negligent operation, equipment, or construction of defendant’s locomotive held erroneous as misplacing the burden of proof; the correct rule being that, when' plaintiff proves ownership of property, its value, and its destruction by fire from sparks from a passing engine, a prima facie case of negligence is* made out, entitling him to recover, unless defendant shows to the reasonable satisfaction of the jury that it was not guilty of negligence.</p> <p><g^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Locke, Judge. Bill to quiet title to certain lands by D. A. Brock and others against Virginia Huey and others. Decree for complainants, and defendants appeal.

B. Aird, Judge. Action by the Preston Motor Sales Company, a corporation, against the Preston Motor Corporation, for damages for breach of contract. From a judgment overruling demurrers to pleas, plaintiff takes a nonsuit and appeals.

L. Longshore, Judge. Bill by M. B. Grace against W. H. Montgomery to redeem land or foreclose a second mortgage on the land. From a decree sustaining demurrers to the bill and also sustaining pleas 1 and 2, the complainant appeals.

P. Heflin, Judge. Tom Lambert was convicted of murder in the first degree, and sentenced to death, and he appeals. Counsel cite the following authorities as showing that the court erred in its actions relative to the admission and exclusion of nonexpert evidence of insanity. 125 Ala. 12, 27 South. 983; 139 Ala. 16, 36 South. 1012; 140 Ala. 87, 37 South. 81; 174 Ala. 4, 56 South. 913; 181 Ala. 63, 61 South. 434; 193 Ala. 55, 69 South. 569, Ann. Cas. 1918B, 119; 15 Ala.

S. Williams, Judge. Ejectment by the Seaboard Air Line Railway against Mrs. Mary Lou Banks and another. Judgment for defendants, and plaintiff appeals.

Court of Appeals. Petition by John T. Farrow for certiora-ri to the Court of Appeals to review and revise the judgment of said court affirming the appeal of John T. Farrow v. Thomas S. Burns, 18 Ala. App. 350, 92 South. 236. The action is to recover on a quantum meruit for services which were contracted for under the contract rendered void by the statute of frauds.

Locke, Judge. Bill by the Birmingham Realty Company against Ida H. Tyler and others to enforce a mechanic’s or materialman’s lien. From a decree overruling demurrers to bill, respondent Tyler appeals.

Q. Smith, Judge. Action by John H. McCaa against John H. Thomas for damages for personal injuries sustained in an automobile accident. Judgment for defendant, and plaintiff appealed. The collision was between a new Studebaker car, being driven by Thomas, and a motorcycle, being driven by McCaa.

, Judge. Action by the Alabama Chemical Company against Mrs. M. E. Brown upon a promissory note. Judgment for the plaintiff, and the defendant appeals. Court erred in sustaining demurrers to the defendant’s plea in abatement. 84 Neb. 735, 121 N. W. 957, 50 L. R. A. (N. S.) 501; Chitty on Contracts, 6-25; section 5324, Code 1907; 223 Mass. 8, 111 N. E. 678, L. R. A. 1916D, 696; 94 U. S. 535, 24 L. Ed. 148; 5 Gray (Mass.) 174.

B. Foster, Judge. Bill by Mrs. Oda Taylor against J. F. Taylor and the First National Bank to redeem from foreclosure sale. From a ■ decree overruling demurrers to bill, respondents appeal.

Petition by Fred H. Greek for compensation under the Workmen’s Compensation Act, opposed by the Sloss-Sheffield Steel & Iron Company, employer. Judgment for petitioner, and the employer petitions for writ of certiorari. The statement of facts contained in, the record is not so specific as required by section 28 of the Compensation Act. 110 Ala. 115, 20 South. 57; 71 Ala. 461; 87 Atl. 86; 84 ISÍ.

<p>Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.</p> <p>Action by George Crossett against the Nor-wood Transportation Company for damages for permanent personal injuries, suffered in an automobile collision. There was judgment for the plaintiff in the sum of $10,000, and the defendant appeals.</p> <p>Appellee was in the employ of the city of Birmingham as a fireman. He was known as the “plugman,” and in answering the fire alarm he was supposed to ride on the rear of the fire truck, and attach the hose to the plug in case of a large fire. He had nothing whatever to do with the speed, control, or operation of the truck.</p> <p>In December, 1917, while at his post of duty he was injured in a collision between the fire truck, on which he was riding and a passenger truck operated by appellant company. The collision occurred at a public thoroughfare in thé city of Birmingham; the two vehicles approaching the intersection at right angles to each other. The evidence for the plaintiff tended to show the lights of the fire truck were burning, and the bell with which it was equipped ringing, before and at the time it reached the intersection, and that the truck was running at a speed of 30 to 35 miles per hour. The ordinance of the city of Birmingham provides that all vehicles of the fire department shall have a prior right of way upon all streets and avenues of the city, and imposes a penalty upon any one operating any other kind of vehicle who carelessly, wantonly, or maliciously detains the fire department. The evidence for the plaintiff further tended to show that the passenger truck operated by the defendant approached the intersection of these streets and continued on its course without in any manner reducing its speed until the collision occurred. There is evidence tending to show that the lights, with which the truck was equipped, could be seen for more than a block, and that the bell could be heard under any circumstances for a distance of three blocks.</p> <p>The evidence for the defendant (appellant here) tended to show that the driver of the automobile bus operated by the defendant was exercising due care, looking and listening for other vehicles, and he did not see or hear the fire truck, and that the speed of the bus was in fact lessened at the time of the collision. The windows of the bus were down, and it was dark; that just previous to the accident the driver of the bus had brought his car almost to a stop on account of a colored boy darting ahead of him on a bicycle.</p> <p>The record discloses there has been three mistrials of the cause, and at the time of this trial the plaintiff exhibited his injuries to the jury, and the evidence offered tended to show he was permanently injured; and that in fact there was much likelihood of his leg which was crushed having to be amputated; and that he had incurred much expense and suffered great pain — one physician testified he had suffered excruciating pain during the first two months he had treated him. Plaintiff was 25 years old, and married at the time of the accident. There was verdict and judgment for $10,000 in favor of plaintiff, from which defendant prosecutes this appeal.</p> <p>The cause was tried upon count 1 as amended. This count showed the employment of plaintiff by the city in the fire department, and that he was being transported on a truck of said department in the discharge of his duties as such employé; and that while the truck was' proceeding along the public highway in the city on an official trip it came in contact with an automobile bus operated by defendant) on the public highway, the collision occurring át the intersection of Twenty-Second street and Avenue F in the city of Birmingham; and as the result of said collision the plaintiff’s leg was broken and other injuries not necessary to note, including loss of time, expense, etc. It was then alleged that the injuries and damages aforesaid were proximately caused by the negligence of the defendant, in this: Defendant negligently operated said automobile bus at the time and place of collision. Demurrer to this count was overruled.</p> <p>There were a number of charges given for the defendant, and a large number refused to the defendant. The refused charges are not separately argued, and will not therefore be separately set out.</p> <p>One Walton, a witness for the plaintiff, had been a city fireman for 7 years, and was such at the time of this accident. He testified the truck was going the practical way to the destination at that time; that the fire bell on the truck was a regulation fire bell, and was making a loud noise. He wás asked the question, “Do you know how far it can be heard when there is no other disturbance? ” The objection by defendant was overruled, and witness answered, “Well, it is hard to answer, but it could be heard several blocks under most any conditions — -I will say that.” Defendant moved to exclude the answer, which was overruled. The witness detailed the size of the bell, the clapper,, and the material of which both are made. One witness testified the fire engine was making an unusual noise and the bell ringing loud.</p> <p>Tlie fact that a fire wagon has a right of way does not excuse or exempt its driver from the duty to exercise due care in driving .upon or across a popular street crossing. 120 Ala. 135, 28 South. 87; 198 Ala. 113, 72 Souih. 16. The defendant was entitled to tlio general affirmative charge. The court erred in refusing the group of charges beginning with No. 2 and ending with No. 53. 128 Ala. 255, 29 South. 040; 97 Ala. 196, 11 South. 894, 21 Ir. R. A. 316, 38 Am. St. Rep. 179. The court erred in refusing the group of charges beginning with No. 16 and ending with No. 45. 164 Ala. 82, 51 South. 365, 137 Am. St. Rep. 25; 17 Ala. App. 25, 81 South. 361; 1 C. J. § 5, note 37; (Tex. Oiv. App.) 219 S. W. 241; 135 Md. 208, 108 Atl. 570; 110 Va. 310, 66 S. E. 86. The court should have charged that the pension received should be taken into consideration in determining the plaintiff's damages. Acts 1915, p. 898; 92 Ala. 209, 9 South. 363. Count 1 of the complaint was defective. 80 South, 798.</p> <p>Errors are not so assigned as to require separate consideration by the court, and if any of the assignments are not justified the case will not be reversed. 3 Ala. App. 456,' 57 South. 146; 188 Ala. 218, 66 South. 434; 16 Ala. App. 130, 75 South. 722; 173 Ala. 675, 55 South. 1001. The complaint was in all matters sufficient. 125 Ala. 199, 27 South. 1006; 162 Ala. 609, 50 South. 292; 175 Ala. 49, 56 South, 731. It was competent for the witness to state that the bell could be heard several blocks under any sort of conditions. 169 Ala. 213, 53 South, 315, 32 L. R. A. (N. S.) 889; 138 Ala. 614, 35 South. 701 136 Ala. 126, 34 South. 349; 100 Ala. 110, 14 South. 862.</p>

<p>1. Corporations <&wkey;517 — Plea denying that plaintiff is a corporation must be verified by affidavit.</p> <p>A plea that “this defendant denies that plaintiff is a corporation” is a plea nul tiel corporation and under Code 1907, § 3969, must be verified by affidavit.</p> <p>2. Corporations <&wkey;5l4(l) — Pleading <&wkey;8(6) —Plea denying plaintiff corporation was legally authorized under law to sue, held subject to demurrer as stating conclusion of pleader. ‘</p> <p>A plea that “this defendant denies that the plaintiff is legally authorized under the laws of this state to maintain this suit” was subject to a demurrer as being a conclusion, since the plea should have referred its denial to the time when the action was commenced, or should have alleged such a subsequent dissolution as operated to abate the action.</p> <p><Sss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes'</p>

N. Rowe, Judge. Contest of homestead exemption between Dossie Thompson and Mary Butts. From a judgment denying the exemption, Dossie Thompson appeals. Section 4211, Code 1907, requires the appointment of a guardian ad litem, and this was not done in this instance. 107 Ala. 364, 18 South. 108; 62 Ala. 222. Chambers not a person in interest in such a sense as to entitle him to contest. 74 Ala. 271. Brief of counsel did not reach the Reporter.

Petition by Lee P. George for mandamus directed to Board of Revenue and Road Commissioners of Mobile County to require the entry of an order for the construction of a line fence. From a decree denying the writ, petitioner appeals.

W. Haralson, Judge. Bill by C. H. McCartney against the Court of County Commissioners of De Kalb County, Ala., and the Judge of Probate of said County, to enjoin them from issuing and selling certain warrants. From an order granting the injunction, the respondents appeal. The court had the authority to pass the order, make the contract, and issue and sell its warrants.

Y. Evans, Judge. Action by W. C. Bickell, as the administrator of the estate of Mrs. Bickell, for damages for the death of his wife, filed against the Norwood Transportation Company. Judgment for the plaintiff, and the defendant appeals.

Foster, Judge. Action by Temmie Mandelbaum against the Mutual Life Insurance Company of New York, upon a policy issued on the life of Solly Mandelbaum, in which she was named as beneficiary. Judgment for the plaintiff, and the defendant appealed.

<p>Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.</p> <p>Bill by M. A. Sewell, as administrator, etc., against L. F. Sewell and others, to remove the administration of the estate from the probate to the circuit court, to enjoin the prosecution in the probate court of a ■ petition to sell lands for division and for other purposes. From a decree granting the injunction, overruling demurrers to the bill and entering an order of removal, respondents appeal.</p> <p>Under the facts in this case, the administrator had and has no rights in or to the lands as against the heirs, and must ground his right of relief upon other things, that of alleged improvements, and the presumption is that these repairs and improvements were for his own benefit. 107 Miss. 273, 65 South. 246; 21 C. J. 953. The hill must-possess equity to authorize a hearing, and cannot be aided by any presumption that amendable defects'may be cured. 201 Ala. 535, 78 South. 889; 173 Ala. 182, 55 South. 793. The jurisdiction to sell the land for division vested exclusively in the probate court when the petition was filed there. 146 Ala. 644, 41 South. 819, 9 Ann. Oas. 1026. The allegations of the improvements cannot, therefore, give the bill equity. 105 Ala. 637, 17 South. 109. The allegation of valuable improvements is insufficient to entitle complainant to compensation. 155 Ala. 556, 46 South. 981; 203 Ala. 312, 82 South. 668.</p> <p>The administrator was entitled to compensation for money expended for improvements on the nroperty, and this gave the bill equity. 17 Ala. 175; 9 Ala. 734; 11 A. & E. Ency. Law, 1274 ; 7 A. & E. Ency. Law, 353-i 358. The court properly made the orders objected to. 155 Ala. 554, 46 South. 981; Acts 1919, p. 40; 124 Ala. 698, 27 South. 513; 86 Ala. 337, 5 South. 465; 57 Ala. 472.</p>

<p>1. Criminal law <&wkey;635 — Courts and Legislatures cannot enlarge exceptions to right to public trial.</p> <p>The right granted guaranteed by Const. 1901, § 6, to a public trial, subject only to exception under section 169, in prosecutions for rape or assault with intent to ravish, cannot be subjected by either courts or Legislature to other exceptions, regardless of the opinion of the court as to the public necessity for such action.</p> <p>2. Criminal law <§==3635 — Record held to show accused was denied public trial.</p> <p>A record reciting that, after the jury was impaneled, the court stated that it was to the public interest to exclude all persons except attorneys, officers of the court, and parties and their relatives, and that he would have to require all other parties to be excluded during the taking of testimony, was sufficient to show a denial of the right to a public trial, it being unnecessary that a formal order excluding the public be entered.</p> <p>3. Criminal law <&wkey;>l 144(10) — Not presumed court’s direction to exclude public was disobeyed.</p> <p>Where the court stated he would require all of the public, with certain exceptions, to be excluded during the taking of testimony, and no withdrawal of that statement appears of record, it will not be assumed that the direction was not obeyed, even though the record fails to’ show that any persons were actually required to leave the courtroom or prevented from entering by the statement.</p> <p>Sayre and Gardner, JJ., dissenting.</p> <p>c§£=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Petition of Yirgil Thomas for certiorari to Court of Appeals to review and revise the judgment and decision of said court (92 South. 2411), rendered on the appeal in Virgil Thomas v. State of Alabama.

Brickell, Judge. Petition of C. M. Sherrod, as Deputy Solicitor for Lawrence .County, for mandamus commanding W. R. Jackson, as Clerk of the Circuit Court of Lawrence. County and ex officio Clerk of the County Court, to pay over to him certain fees alleged to have been earned as Deputy Solicitor. From an order-granting the writ respondent appeals. The act offends section 105 of the Constitution of 1901. 17 Ala.

<p>1. Sheriffs and constables <&wkey;29 — Subsequent local act controls provisions of general act.</p> <p>Though Gen. Acts 1915, p. 382, approved September 10, 1915, applied to Jefferson county, the subsequent local act of September 14, 1915 (Loc. Acts 1915, p. 374), relating to that county, must prevail in so far as there may be any conflict.</p> <p>2. Sheriffs and constables &wkey;>70 — Payment of salary only from receipts does not apply to deputy’s salary.</p> <p>The provision of Loc. Acts 1915,-p. 375, § 4, restricting the amount to be paid an officer by way of salary to the amount of fees earned and collected less the cost of conducting the office, applies only to the salary of the officer himself, as distinguished from the salaries of his deputies, which are included in the costs of conducting the office, so that a deputy sheriff is entitled to payment of his salary under the preceding provisions of the statute; even though the fees earned are insufficient to meet it.</p> <p>3. Sheriffs and constables &wkey;>70 — Payment of deputies’ salaries is to be made from general fund after sheriff’s fund consolidated with it.</p> <p>The provisions of Gen. Acts 1915, p. 384, §§ 614 and 7, relating to payment of salaries, and providing for a sheriff’s fund, do not prevent the payment of the salaries of the deputy sheriff from the general fund in a county in which, under Loc. Acts 1915, p. 374, the sheriff’s fund goes into the general fund of the county, especially in view of Act Sept. 3, 1919 (Gen. Acts 1919, p. 258).</p> <p>Sayre, J., dissenting.</p> <p><S&wkey;Eor other cases see same to£ic and KEY-NUMBER in. all Key-Numbered Digests and Indexes</p>

Clair County; O. A. Steele, Judge. Bill by W. F. Donohoo against M. M. Smith and others to quiet title to a certain 40 acres of land. Decree for respondents, and complainant appeals.

E. Gamble, Judge. Original bill by Lena Giddens and another against J. Claude Iieddoch, the Winter-Loeb Grocery Company, and others for the sale of land for division among joint owners, with cross-bill by the Bank of- Luverne to subject the interest of complainant to a mortgage held by the Bank. From the decree rendered, complainants appeal, and the Bank of Luverne files a cross-appeal.

Bill by J. M. Simpson for an accounting under a 'contract with the Grand Bay Land Company, by which Simpson undertook to act as the sales agent of the land company for a commission, payable at a certain rate, upon collections of the purchase money on sales made by him. Prom the decree rendered on the report of the register and the statements of the account, the Grand Bay Lumber Company appeals, and J. M. Simpson files a cross-appeal.

Jones, Judge. Action by John Quick against the Western Railway of Alabama for damages for personal injuries. From an adverse ruling on the pleading plaintiff took nonsuit and appealed. Affirmed. The statute which declares a convict civilly dead is unconstitutional and void. Sections 10, 13, and 19, Const. 1901. The court ruled correctly under the statutes. Section 7637, Code 1907; 4 Johns.

<p>Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.</p> <p>Edgar Pynes was convicted of murder in the first degree, and he appeals.</p> <p>The following charges are noted as refus-1 ed to the defendant:</p> <p>“(6) I charge you that if the testimony shows elements of self-defense on the part of Searcy Pynes, the burden is on the state to satisfy you that Searcy Pynes was not free from fault in bringing on the difficulty before you can convict the defendant.”</p> <p>(7) Same as 6, with this addition:</p> <p>“And that defendant either fired the fatal shot or hided or abetted Searcy Pynes at the time of or prior to the firing of the fatal shot before you can convict the defendant.”</p> <p>“(13) The doctrine of a person assailed in his dwelling not being required to retreat applies to the curtilage, and if Searcy Pynes was within the curtilage of his own home at the time of the killing he owed no duty to retreat if attacked by the deceased; and in such case you cannot convict defendant, even though you believe he aided or abetted Searcy Pynes in the killing.”</p> <p>(24) Practically the same as 13.</p> <p>(D) Practically the same as 13 and 24.</p> <p>Charges 14 to 24 have reference to an acquittal if any juror entertain any reasonable doubt as to whether the killing was done by Searcy Pjmes with malice aforethought so far as murder in the first degree is concerned; also, as to murder in any degree if any juror entertained any reasonable doubt ■ as to whether the killing was done with malice; also, if any juror entertains any reasonable doubt as to whether or not defendant aided or abetted Searcy Pynes at the time of or prior to the fatal shot.</p> <p>The court erred in overruling the motion to quash the indictment. Minor, 28; 40 Ala. 24; 126 Ala. 40, 28 South. 619. The court erred in admitting the testimony of Dr. Matthews regarding the wound. 15 Ala. App. 245, 73 South. 122; 15 Ala. App. 497, 73 South. 992 ; 62 South. 977; 186 Ala. 5, 65 South. 42. The court erred in admitting to the confessions of the defendant. 179 Ala. 27, 60 'South. 908; 202 Ala. 65, 79 South. 459 ; 204 Ala. 6S5, 87 South. 183. The court 'erred in refusing the charges requested by the defendant. 13 Ala. App. 91, 69 South. 345; 16 Ala. App. 396, 78 South.’312; 16 Ala. App. 505, 79 South. 266 ; 201 Ala. 441, 78 South. 819; 201 Ala. 512, 78 South. 866; 16 Ala. App. 433, 78 South. 463; 78 South. 317.</p> <p>Brief of counsel did not reach the Reporter.</p>

Jones,. Judge. Action in assumpsit by W. C. Ozier against T. J. Gray. Judgment for plaintiff, and defendant appeals. The court erred in admitting the daybook in evidence. Section 4003, Code 1907; 204 Ala. 186, 85 South. 510; 203 Ala. 280, 82 South. 530; 184 Ala. 460, 63 South. 987. Thé court erred in permitting the witness to state his conclusion as to the amount due. 2 Ala. App. 488, 56 South. 850.

Jones, Judge. Bill by James D. Roy against Adolph Abraham and others to enforce the judgment lien on an undivided interest in real estate and; for the sale of same for partition or division. From a decree sustaining Abraham’s demurrers and dismissing the bill as to the other defendants, complainant appeals.

<p>Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.</p> <p>Bill by C. J. Brock and another against the Clio Banking Company to enjoin the foreclosure of mortgage, to purge it of usury, and to redeem. Efom the decree rendered, complainants appeal.</p> <p>The court erred in not permitting the amendment to be filed that was offered to he filed in July, 1920. 50 Ala. 561; 64 Ala. 486; 186 Ala. 574, 64 South. 960. The effect of reversing the decree on former appeal was to vacate it in toto, and to leave the parties just as if it had not been rendered. 20 Ala. 373; 173 Ala. 272, 55 South. 1011; IS Ala. 405 ; 22 Ala. 425 ; 90 Ala. 252, 7 South. 805; 199 Ala. 594, 75 South. 6; 98 Ala. 534, 11 South. 600; 104 Ala. 92, 15 South. 939. The court erred in not going back of the settlement of January, 1910, and permitting the claimants to show the payment by mistake of more than $4,000. 88 Ala. 309, 7 South. 150; 59 Ala. 264; 119 Ala. 534, 24 South. 561; 84 Ala. 4, 7 South. 98; 12 Ala. App. 596, 68 South. 556; 88 Ala. 300, 7 South. 150; 75 Ala. 572.</p> <p>The report of the former appeals in this case concludes complainant from going back of the settlement of January, 1910, and hence the court properly denied the right to make the amendment, ordered in July, 1920. And on these same authorities counsel contend that the decree is in all respects correct and should be maintained.</p>

A. Pearce, Judge. Searcy Pynes, alias, was convicted of murder in the first degree, and he appeals. The court should have quashed the indictment. Minor, 28; 40 Ala. 24; 26 Ala. 40, 62 Am. Dec. 711. Counsel discuss other assignments of error, with citation of authority, but, as they are not treated by the court, they are not here set out. Brief of counsel did not reach the Reporter.

L. Sowell, Judge. Action by J. C. Willingham against the Corona Coal Company. Prom an order refusing to set aside a judgment for plaintiff, defendant appeals. The court erred in overruling motion for a new trial. 206 Ala. 156, 89 South. 624; 105 Ala. 5S9, 17 South. 182; 205 Ala. 537, 88 South. 663; 18 Ala. App. 23, 88 South. 454; 148 Ala. 491, 42 South.'749 ; 205 Ala. 59, 87 South. 596.

<p>Appeal from Circuit Court, Tallapoosa County ; Lum Duke, Judge.</p> <p>Action by Alberta G. Conine and another, as the personal representatives of the estate of W. M. Oonine, 'deceased, against the Alabama Power Company, for the death of their decedent. Judgment for plaintiffs, and defendant appeals.</p> <p>The court erred in overruling demurrers to counts 1, 2, 3, and 4 of the complaint. 186 Ala. 92, 64 South. 614; 26 Cyc. 1525; 145 Ala. 664; 104 Ala. 611, 16 South. 620; 196 Ala. 670, 72 South. 305. On these same authorities, count 5 was demurrable. Counts 6,-7, and 8 were subject to the demurrers interposed. 117 Ala. 367, 23 South. 231; 114 Ala. 492, 22 South. 279, 62 Am. St. Rep. Í16; and authorities supra. The defendant was entitled to the affirmative charge as'requested. 166 Ala. 482, 52 South. 86; 150 Ala. 440, 43 South. 481; 91 Ala. 487, 8 South. 552. The doctrine of error without injury is without application here. 204 Ala. 539, 86 South. 394, 12 A.' L. R. 251; 136 Ala. 537, 33 South. 835, 96 Am. St. Rep. 38; 184 Ala. 420, 63 South. 992. Counsel discuss other assignments of error not necessary to be here treated.</p> <p>General demurrers will not be considered, nor will general assignments of error. 150 Ala. 659, 43 South. 796. There was no room for the affirmative charge under the evidence in this case. 144 Ala. 343, 39 South. 74; 156 Ala. 108, 47 South. 201. Any error committed by the trial court was without injury. 139 Ala. 462, 36 South. 40; 125 Ala. 178, 27 South. 781.</p>

V. Evans, Judge. Petition by the State of Alabama, on the relation of W. S. Dunston, for mandamus directed to the Birmingham News, a corporation, and its officers, to require an examination of its books and papers. From a judgment granting the writ, respondents appeal.

<p>Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.</p> <p>Bill by J. B. Powell and another against the Perrine Sawmill Company and others, to declare and enforce a lien under a contract for the sale of certain property. From a decree overruling demurrers to the bill, and granting the relief prayed, respondents appeal.</p> <p>The bill should have been dismissed for want of equity. The court was in error in its decree against either of these appellants, and was in error in decreeing the complainants to have a lien upon or a beneficial interest in the property in question. 54 Ala. 486; 68 Ala. 114; 66 Ala. 64; 54 Ala. 320; 70 Ala. 434; 107 Ala. 321, 18 South. 258; 60 Ala. 239; 59 Ala. 609; 93 Ala. 543, 9 South. 256 ; 224 Mass. 1, 112 N. E. 493; 106 Ala. 205, 17 South. 525, 28 L. R. A. 707, 54 Am. St. Rep. 31; 168 Ala. 404, 53 South. 71; OR. C. L. 921.</p> <p>Equity has exclusive jurisdiction to enforce an implied trust, and, having acquired jurisdiction for that purpose, will do complete equity. 74 Ala. 546; 157 Ala. 41, 47 South. 251. The bill makes a case entitling a court of equity to .pursue and lay hold of the property at the request of creditors. 59 Ala. 139; 103 Ala. 369, 15 South. 618;. 202 Ala. 469, 80 South. 853; 145 Ala. 196, 41 South. 143; 112 Mich. 70, 70 N. W. 413; 95 Cal. 524, 30 Pac. 705, 29 Am. St. Rep. 149. The reservation of ■stock in the Perrine Sawmill Company for the Ensign Company or its shareholders rendered the conveyance void, under section 4287, Code 1907, regardless of the intention. 203 Ala. 397, 83 South. 139; 187 Ala. 189, 65 South. 53S; 75 South. 387. The rescission of the contract could not affect the right of third parties which had accrued thereunder. 14 La. 43, 33 Am. Dec. 573; 9 Cyc. 636; 166 Ala. 308, 51 South. 964; 170 Ala. 504, 54 South. 203; 13 C. J. 541.</p>

Jones, Judge. ’ Mandamus by the Federal Land Bank of New Orleans to require D. W. Crosland, as Judge of Probate, Montgomery County, to record a certain mortgage without the payment of the usual privilege or license tax therefor. From a decree granting the writ, respondent appeals.

<p>1. Death <&wkey;33r-l nstruction on liability of persons present at killing held proper.</p> <p>In an action for the death of plaintiff’s intestate, shot by one of the defendants in the presence of the other defendants, who introduced evidence showing they had entered into no conspiracy with the one who fired the shot and did not aid or abet in the killing, instruction that the “mere presence of any of defendants at the time and place of said killing is not sufficient to make him responsible for said act, nor liable to the plaintiff,” held proper.</p> <p>2. Death <&wkey;104(I) — Instruction on self-defense held not reversible error.</p> <p>Where there was evidence that plaintiff’s intestate brought on the difficulty by making a felonious and unlawful assault, and that there was no reasonable avenue of escape open to any of the defendants, the giving of a charge that plaintiff could not recover if the intestate “was about to unlawfully and feloniously shoot one or more of the defendants with a pistol,” and one of the defendants shot the intestate in order to prevent him from shooting defendants, held not reversible error, though it did not hypothesize the different elements of self-defense, or state that defendants must have been entirely free from fault, since such elements must have been understood by the jury as being embraced within the language of the charge, especially in view of other charges given.</p> <p>3. Trial t&wkey;!33(2) — Remarks of counsel to jury as to detention of jurors held not ground for new trial, in view of charge.</p> <p>Statement of counsel in argument that he approached his argument at a time when the jury were tired out, after having been kept at the courthouse in the custody of officers for two days and nights, held not ground for new trial, in view of instruction that the court, and not the parties, was responsible for the detention of the jury.</p> <p>,@^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>4. Trial &wkey;>!33(2) — Statement of counsel In argument to jury as to venue held not ground for new trial.</p> <p>In action for death of plaintiff’s intestate, shot by one of the defendants, statement of counsel for defendants in argument that, in the absence of certain evidence characterized by counsel as unworthy of belief, the defendant who did the shooting would have to be tried in a certain county, held not ground for new trial, in view of instruction that the question of jurisdiction was one to be decided by the court, and that the jury should not be influenced in their decision on the facts by any ruling the court might make upon the law.</p> <p>Sayre, X, dissenting.</p> <p>¿^5For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Appeal, from Circuit Court, Jefferson County; J. B. Aird, Judge. Action for damages by Mary Pauline Al-dridge against the Dye-Washburn Hotel Company. Judgment for plaintiff. From an order denying a motion for new trial, defendant appeals. The charges covered by assignments of error 6, 7, 8, and 9 read as follows: “Charge 7.

Jones, Judge. Bill by J. C. Crowson against Michael Cody and others for accounting and discovery. From a decree sustaining demurrers to the bill, complainant appeals. The appellant as pledgor was entitled to maintain this bill. 2 Black, 619, 17 L. Ed. 309; Jones on Pledges, §§ 1-14; 14 Wis. 687; 41 Eng. Rep. 990; 200 Mass. 414, 86 N. E. 777, 16 Ann. Cas. 123; 19 R. C. L. 243.

Evans, Judge. Motion by J. Chris. Hartsfield, Sheriff of Jefferson Counts', for a summary judgment against M. V. Henry, Treasurer of Jefferson County, on a warrant issued to him for his salary as such officer. Prom a judgment for movant, Henry appeals. Transferred from Court of Appeals, under Acts 1911, p. 449, § 6. The right to compensation of a public officer is created by law, and not by contract, and no compensation can be recovered, unless provided by law. Mechem on Pub.

<p>1. Taxation <&wkey;>486 — Scope of trial de novo on appeal from adjusters’ valuation stated.</p> <p>The trial de novo on taxpayer’s appeal to county board of revenue or court of county commissioners from valuation of his property by county tax adjuster or board of tax adjusters, under Revenue Law 1919, §§ 99', 104, 107, includes, initially, the inquiry presented and determined by the adjuster, or board of adjusters; that is, that initiated and instituted by the “objection” of the taxpayer.</p> <p>2. Taxation <&wkey;493(8) — Scop© of trial de novo on appeal to circuit court from property valuation stated.</p> <p>On appeal, by either the state or the taxpayer-, to the circuit court from the action of the court of county commissioners or board of revenue on property valuation appeal, the same procedure, process, and inquiry is designed by Revenue Law 1919, § 108, as in case of appeal to the county board of revenue or the court of county commissioners; the trial there being de novo, and referable to the original status, without regard to the judgment of the court of county commissioners or board of revenue in the premises.</p> <p>3. Trial <&wkey;256(6)— Charge omitting statement that determination must rest on evidence before jury not erroneous, in absence of requested explanatory charge.</p> <p>In trial of correctness of valuation of property for taxation under Revenue Law 1919, a charge that the jury must fix the value of the property at 60 per cent, of the reasonable cash value of the property on the preceding October 1st was not erroneous, as omitting to refer the duty’s discharge to the evidence before the jury, since, if it was apprehended that the charge might mislead, an explanatory instruction should have been requested.</p> <p>4. Evidence <§s^i568(4), 571(7) — Opinion evidence as to value not conclusive.</p> <p>Testimony respecting value being but opinion evidence, neither the judgment of experts nor of others is conclusive or binding on the jury, or the court trying the issue of value without jury.</p> <p>5. Taxation <§^493(8) — Valuation of adjusters raises no evidential presumption of correctness on appeal.</p> <p>Under the system provided by Revenue Law 1919, there is, on appeal and trial de novo, no evidential presumption of the valuation made by the adjusters, although that valuation is made by the system’s provisions an element of the inquiry raised by the taxpayer’s objection.</p> <p>6. Trial d&wkey;296(2) — Instruction held cured by later instruction.</p> <p>In trial of the correctness of valuation of property under Revenue Law 1919, a charge that the jury, after considering all the evidence in the case, could disregard “the presumption of the board of tax adjusters as to the assessed value of the property,” while faultily constructed in respect of the quoted phrase, was not prejudicial to the state, where a charge was given for the state that “the final assessment on the defendant’s property, made by the county board of tax adjusters, as contained in the official record submitted to you, is presumptively correct, and the burden is on the defendant to show to the contrary.”</p> <p>7. Evidence d&wkey;I42(4) — Valuation of adjoining lots not admissible.</p> <p>In trial of correctness of valuation of property for taxation under Revenue Law 1919, objection was properly sustained to a question to a chairman of the county board of adjusters, “What was the value fixed by the board of adjusters on each of the lots adjoining said” property, “without the improvements?”</p> <p>8. Evidence &wkey;3l547 — Market value of adjoining lots, not shown to be similarly situated, held inadmissible.</p> <p>In trial of correctness of valuation of property for taxation under Revenue Law 1919, objection was properly sustained to a question to a witness for the state, who was chairman of the county board of adjusters, and shown to be qualified to testify as to real estate values in the city where the property was, “What,' in your opinion, was the reasonable market value •on October 1st * * * of eacb one of said lots adjoining said” property “without the im-profoments?” the question containing no reference to similitude in situation, etc., of the adjacent lots to the lot in question, and it not appearing that the state offered to show the essential likeness.</p> <p><§=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

A. Greene, Judge. Action by J. B. Tomme against the Pullman Company and the Southern Railway Company for damages. Prom a judgment for defendants, plaintiff appeals. The plaintiff, J. B. Tomme, brought his action against the defendants for damage» for injuries sustained by his wife while a passenger.

L. Brewer, Judge. Action of ejectment by William Collins Gachet and others against F. C. Owens. From a judgment for plaintiffs, defendant appeals. Plaintiffs must recover on the strength of their own title, and not on the weakness of that of the defendant. 62 Ala. 365; 151 Ala. 482, 44 South. 375; 137 Ala. 278, 34 South. 850;'148 Ala. 247, 41 South. 822 ; 205 Ala. 105, 87 South. 351.

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

<p>Appeal from Circuit Court, Blount County;</p>

<p>Appeal from Circuit Court, Montgomery County;</p>

<p>Appeal from Circuit Court, Cullman County;</p>

<p>Cer-tiorari to Court of Appeals.</p>

<p>Cer-tiorari 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>Cer-tiorari to Court of Appeals.</p>

<p>Cer-tiorari to Court of Appeals.</p>

<p>Appeal from Circuit Court, Elmore County;</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>Cer-tiorari to Court of Appeals.</p>

<p>Appeal from Circuit Court, Jefferson County;</p>

<p>Appeal from Circuit Court, Jefferson County;</p>

<p>Cer-tiorari to Court of Appeals.</p>

<p>Appeal from Circuit Court, Jefferson County;</p>

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

<p>Appeal from Circuit Court, Jefferson County;</p>