Volume 209 — Alabama Reports

Petition of J. B. Helm for certiorari to the Court of Appeals to review and revise the judgment and decision of said court in the case of Helm v. Griffith, 17 Ala. App. 122, 82 South. 570. The list in this case was not certified by the city clerk, and was therefore void. Code 1907, §§ 1319, 1320, 1321; 190 Ala. 569, 67 South. 381; 70 Ark. 326, 67 South. 1014.

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

<p>Appeal fi#im Circuit Court, Mobile County; Joel W. Goldsby, Judge.</p> <p>Petition of the State of Alabama, on the relation of the City of Mobile, for writ of mandamus to the Board of Revenue and Road Commissioners of Mobile County. Judgment denying the writ, and relator appeals.</p> <p>The city ordinance shows on its face that only a nominal charge was ascertained and designated, and said ordinance is void. Acts Sp. Sess. 1921, p. 50.</p> <p>The city, having ascertained and declared the amount of the reasonable charge, and having accepted the same as being reasonable, cannot repudiate that act and force the county into its former position.</p>

P. Agee, Judge. Bill by the Jackson-Tinney Lumber Company against the City of Talladega, and' the officials thereof. From a decree overruling demurrer to the bill, respondents appeal. Held: and the said pretended order was not recorded for more than 10 years after the pretended election was held, and long after his tenure of office had ceased.

B. Poster, Judge. Action on life insurance policies by Lockard H. Morgan and others against the Prudential Insurance Company of America. •Judgment for defendant, and plaintiffs appeal. The beneficiaries had a vested interest, which could not be defeated without their consent, save by a lapse in the payment of premiums for such time as would consume the entire loan value. 25 Cyc. 889; (Tex.

Petition of the Southern Finance Company for certiorari to the Court of Appeals to review and revise the judgment and decision of the Court of Appeals in the case of Southern Finance Co. v. Foster, 95 South. 338.

Suit by W. W. Watts against County Board of Education of Escambia County. A judgment for plaintiff was reversed, and the cause remanded by the Court of Appeals, 95 South. 498, and plaintiff brings certiorari.

<p>1. Infants <&wkey;i68 — Order of probate court re-transferring cause to circuit court under Juvenile Court Law held! not error.</p> <p>Where a boy under 16 years of age was presented in the circuit court under a charge of murder, and- an order entered transferring the cause to the probate court as provided by Juvenile Court Law, § 9, and after hearing the probate court concluded he could not be reformed, there was no error in ordering the cause retransferred to the circuit court on the same day it was set for hearing in that court, rather than awaiting the time for him to be put on probation, which the statute does not require.</p> <p>2. Infants <&wkey;.65 — Juvenile Court Law held not to modify common-law presumption that child between 7 and 14 is incapable of crime.</p> <p>The common-law rule that a child between the ages of 7 and 14 years is presumably incapable of committing a crime has not been modified by the Juvenile Court Law, fixing age for juvenile delinquents at 16 years for míales, and, where a cause is retransferred from the juvenile court to the circuit court thereunder, defendant is tried under the same rules as govern others charged with offenses.</p> <p>3. Criminal law <&wkey;725— Solicitor’s argument held improper. ■</p> <p>Statements in argument of the solicitor that, as defendant “is an interested party, you have a right to weigh what he said in the case, and, in other words, it is a case where you can break Ms neck on the gallows or send Mm to the pen for life,” and that “You know what your duty is; if I was on the jury I would hang him. There are men in this audience watching to see what you are’ going to do who want to do the same thing that” defendant did, was-improper.</p> <p>4. Criminal law <&wkey;823(2) — Charge including-statement “that a crime has been committed” not reversible error.</p> <p>In a murder prosecution, in view of court’s explanation to the jury that it was a “slip of the tongue,” there was no reversible error in a charge: “Remember the serious question you are to investigate — that a crime has been committed.”</p> <p>5. Homicide <&wkey;i286(2) — Instruction on presumption of malice from use of deadly weapon without qualifying phrase held reversible error.</p> <p>Defendant stabbed deceased with a knife, and in the prosecution for murder Ms evidence tended to establish self-defense, and. other evidence was shown which might have reduced the crime to manslaughter in the first degree; an instruction that “The law presumes in a case like this, presumes malice from the use of a deadly weapon,” which failed to use the qualifying phrase “unless the evidence which proves the killing rebuts 'the presumption,” was reversible error.</p> <p>«SExoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Criminal law <&wkey;448(4) — Question objectionable, as seeking conclusion of witness.</p> <p>Question whether one standing in a certain position could shoot through a certain door and hit an object in a certain place is objectionable, as seeking the conclusion of witness; he not having been shown to have personal knowledge of the elements of fact necessary to formation by him of a judgment in the premises.</p> <p>2. Criminal law &wkey;>830 — Requested unintelligible instruction properly refused.</p> <p>A request for instruction, unintelligible as phrased, is properly refused.</p> <p>3. Homicide &wkey;>293 —Requested instruction bad, as requiring acquittal, if facts be reconcilable with unsupported theory that another may have killed deceased.</p> <p>Requested instruction that, no matter how strong the facts may be, in the absence of evidence of conspiracy, if they can be reconciled with the theory that another may have killed deceased, the jury must acquit, is bad, as admitting of avoidance of conclusion of guilt from facts, however strongly supported or veritable, by recourse to mere unsupported theory that another “may” have killed deceased.</p> <p><£=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

Locke, Judge. Bill by Horace E. Kirk against R. P. MeTyeire, as Mayor of the City of Bessemer, and others. From an order denying temporary injunction, complainant appeals. A private person may maintain a bill for the abatement of a public nuisance. 137 Ala. 523, 31 South. 624; 123 Ala. 292, 26 South. 294; 5 Port. 279, 30 Am. Dec. 564 ; 6 Mayf. Dig. 466; 3 Pom. Eq. Jur. 2078. The temporary injunction should have been granted until final hearing on the bill. 6 Mayf.

<p>Equity <§=3452 — Statute fixing time for filing and calling court’s attention to motion to set aside judgment inapplicable to original bill of review.</p> <p>Act Sept. 22, 1915 (Gen. Acts 1915, p. 708) § 3, requiring that a motion to set aside a judgment be filed and called to the court’s attention within 30 days, is inapplicable to a widow’s petition to vacate a decree if such petition may be regarded as an original bill of review.</p> <p>©nsFor-other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes’</p>

Action by the Alabama Machinery & Supply Company against the Coston-Riles Lumber Company. Judgment for plaintiff, and defendant appeals. The appellee, Alabama Machinery’ & Supply Company, sued appellant, Coston-Riles Lumber Company, in the circuit court on certain promissory notes specifically set up in defendant’s pleading. Both .of said parties were domestic corporations.

C. B. Gwin, Judge. Action by the Simpson Automotive Company against Girdley Vines. From a judgment . granting motion to quash execution, plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Appellant sued Girdley Vines in statutory detinue for an automobile and, damages for the detention thereof. Vines gave a forthcoming bond with Lucinda Vines, L. V. Vines, Maggie M. Sullivan, and Jim Sullivan as sureties.

P. Agee, Judge. Action in ejectment by C. O. McOraw and others against Robert Lindsey. Erom a judgment for defendant, plaintiffs appeal. ’ A claim of adverse possession, by bona fide purchase, must be untainted with fraud, and the purchase made in the honest belief that the vendor had a right to sell. Holt v. Adams, 121 Ala. 664, 25 South. 716; 5 Cye. 719; Black’s Law Diet. 143.

C. B. Gwin, Judge. Action by Sarris & Collas against the Louisville & Nashville Railroad Company. Judgment for plaintiffs, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

<p>Appeal from Circuit Court, Etowah County ; O. A. Steele, Judge.</p> <p>Action for damages by Cliff Garrett against the Gadsden Cooperage Company. Judgment for defendant, and plaintiff appeals.</p> <p>Whatever a corporation does by an agent, it does by itself. Hart v. Jones, 14 Ala. App. 327, 70 South. 206; Bessemer, etc., Co. v. Doak, 152 Ala. 174, 44 South. 627, 12 L. R. A. <N. S.) 389; Highland, etc., R. Co. v. Robinson, 125 Ala. 489, 28 South. 28. Both the superintendent and the corporation were liable for the assault, and there was no misjoinder of them as defendants. Authorities supra. Wanton, willful, and intentional injury is not covered by the Workmen’s Compensation Act. E. T. & Y. v. Johnston, 75 Ala. 596, 51 Am. Rep. 489; W. U. Tel. Co. v. Way, 83 Ala. 542, 4 South. 844.</p> <p>If appellant was entitled to recover at all it was under the Workmen’s Compensation Act. Stegall v. S. S. S. I. & Co., 205 Ala. 100, 87 South. 787; In re McNicol, 215 Mass. 497, 102 JST. E. 697, L. R. A. 1916A, 306; Stasmas v. R. I. O. & M. Co., SO Old. 221, 195 Pac. 762, 15 A. L. R. 576; Minnesota v. Dist. Court, 140 Minn. 470, 168 N. W. 555,' 15 A. L. R. 579; Cranney’s Case, 232 Mass. 149, 122 N. E. 266, 15 A. L. R. 584; Chicago v. Ind. Comm., 292 111. 406, 127 N. E. 49, 15 A. L. R/586.</p>

Action in trespass by R. H. Craft against George R. Craft and William W. Craft. From a judgment for defendants, plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. , The general rule is that set-off is not available as a defense in actions of tort. 34 Cyc. 658; Miarlowe v. Rogers, 102 Ala. 510, 14.South. 790; Rosser .v. Bunn, 66 Ala. 89.

W. Haralson, Judge. Action for damages by Ab. H. McKinney against James H. Hilburn. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6.

<p>I. Partition <&wkey;63(!) — Each grantee presumed to have paid equal share of price in absence of averment and proof of how much was paid by each.</p> <p>In an action for partition, the court, in the absence of averment and proof as to how much of the consideration was paid by each of the two grantees to whom the land had been conveyed by deed of purchase reciting a cash consideration, will presume that each paid an equal amount of the purchase price and that each is equally interested in the land.</p> <p>2. Deeds &wkey;>l32 — -Under deed conveying iand to two grantees for life with remainder to their heirs, the heirs of grantee dying were entitled to possession of their half interest.</p> <p>Where land was conveyed to two grantees “during their natural' lives and after their decease to their heirs at law in fee simple,” the heirs of a grantee given a life estate took the fee of an undivided one-half interest in the land on the death of such grantee during lifetime of other grantee and was entitled on the death of their ancestor to the immediate possession thereof, under Code 1907, § 3403; the. right to possession not being postponed until death of both life tenants.</p> <p>3. Descent and distribution <&wkey;II — Life estates <&wkey;i23 — Rights of life tenants’ heirs, under deed conveying life estate to two grantees with remainder to their heirs, on death of one life tenant during lifetime of other, stated.</p> <p>Where deed conveyed land to two named grantees for life with remainder to their heirs at law in fee simple, and each of the life tenants conveyed his life interest in different portions of the property to the other, the children of one of the named grantees, a married woman, on her death during lifetime of other, became owners in fee of an undivided one-half interest in all the land, with a right after death of their-father to the life estate o'f other named grantee conveyed to their mother by other grantee, should other grantee survive the father, under Code 1907, §§ 3404, 3765.</p> <p>4. Partition &wkey;>)2(5)— Heirs of life tenant who acquired remainder on his death in undivided one-half interest of property entitled to partition during lifetime of other life tenant.</p> <p>Where deed conveyed land to two grantees for life with remainder to their heirs, the heirs of one of the life tenants on her death during lifetime of other, who by reason of such death became owners of an undivided one-half interest in the land, were entitled to a partition of the property or to a sale for such purpose if the land was incapable of equitable partition, under Code 1907, § 5231, since the court in the event of a sale could protect the interests of the other life tenant and his heirs as remaindermen by loaning the money and paying the interest to life tenant during his life and preserving the principal for his heirs at his death.</p> <p>5. Partition <&wkey; 12(5) — Remaindermen heirs of one life tenant entitled to partition on such life tenant’s death during lifetime of other life tenant, though other life tenant had sold parts of land.</p> <p>Where deed conveyed land to two grantees for life with remainder to their heirs, and one of the life tenants sold parts of the land to third persons, the heirs of the other life tenant on her death during the lifetime of the first, having on such death become owners of an undivided one-half interest in the land, were entitled to partition or to a sale of the land if it could not be equitably partitioned, since the third persons merely acquired a life estate for the life of life tenant faho sold them the land, and the court, in the event of a sale, could protect their interests by providing for the sale of the land of each separately and keep one-half of the proceeds and pay interest thereon to the third persons and the principal, on death of life tenant who sold them the land, to the heirs of such life tenant.</p> <p>©=For other cases see sanje topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>6. Partition <&wkey;46(I) — Owner of life estate jn land held a necessary party.</p> <p>Where deed conveyed land to two named persons for life with remainder over to their heirs and the life tenants thereafter conveyed to each other their life estates in different portions of the land, the husband of one of the life tenants acquired on the death of his wife the life estate conveyed to his wife by other life tenant, and should therefore have been made a party to partition suit by the children of deceased life tenant against the other life tenant and his heirs.</p>

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.</p> <p>Action by Virgie Allen against Sovereign Camp of the Woodmen of the World.</p> <p>The insured took out the policy in 1906, and the act of 1911 is not retroactive as to said contract. W. O. W. v. Alford, 206 Ala. 18, 89 South. 528; Supreme Ruler, etc., v. Darwin, 201 Ala. 687, 79 South. 259; B. of L. F. & E. v. Milner, 193 Ala. 68, 69 South. 10. The knowledge of an agent, obtained while acting within the line and scope of his employment, is considered the knowledge of the insurance company. Nat. L. & A. Ins. Co. v. Jackson, 18 Ala. App. 347, 92 South. 201; N. W. Aid Ass’n v. Bodurtha, 23 Ind. App. 121, 53 N. E. 787, 77 Am. St. Rep. 414; Goodwin v. Provident, etc., Ass’n, 97 Iowa, 226, 66 N. W. 157, 32 L. R. A. 473, 59 Am. St. Rep. 411; Carroll v. Charter Oak Ins. Co., 10 Abb. Prac. (N. S.) 166.</p> <p>No brief reached the Reporter.</p>

<p>1. False imprisonment &wkey;>20(I)— Complaint held to state cause of action.</p> <p>A complaint in two counts, each averring a wrongful arrest and imprisonment caused by defendant's agent acting within the scope of his employment, one averring imprisonment in a jail and the other outside of jail, and each averring an injury to plaintiff as a proximate consequence thereof, held to state a cause-of 'action in each count; á wrongful arrest and imprisonment even for a moment of time, whether based on a criminal charge or not, whether in or out of jail, giving a complete cause of action, and it was unnecessary for the counts to disclose the offense charged against plaintiff.</p> <p>2. False imprisonment <&wkey;27 — Evidence of condition of freight car broken into held admissible.</p> <p>In an action for wrongful arrest and imprisonment on a charge of stealing apples from a car in defendant’s train, it was not error to permit a witness for plaintiff to testify that the car, when inspected several hours before the arrest, showed signs of having been tampered with.'</p> <p><&wkey;For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes</p> <p>3. Appeal and error &wkey;>1051 (2‘) — Admission of testimony as matter shown by other evidence held not error.</p> <p>In an action for wrongful arrest and imprisonment on a charge of stealing apples from a car in defendant’s’ train, it. was not error to permit plaintiff’s witness to refer to “this car of apples,” when the evidence as a whole clearly indicated that all the witnesses were referring to the' same car, the one from which plaintiff was charged with stealing.</p> <p>4. Witnesses <S&wkey;236(2) — Preliminary questioning to witnesses to identify time and place held not error.</p> <p>In an action for wrongful arrest and imprisonment, ■ permitting plaintiff to ask his witness if he “recalled the day on which” plaintiff “was arrested for going in a car of apples” held not error; the question being simply preliminary for the purpose of identifying the time and place of the subject-matter of the suit, and being limited to that purpose, and not for the purpose of showing plaintiff’s arrest, of which the witnesses have no knowledge.</p> <p>5. Trial &wkey;>54(l) — Admission of testimony for limited purpose held not error.</p> <p>In an action for wrongful arrest and imprisonment on a charge of stealing apples from a car in defendant’s train, the admission of testimony for plaintiff that one of defendant’s employees had called attention of the witnesses “to this car being open” held not error; the evidence being admitted and limited for the purpose of making a report which the employee was required to make, and not for the purpose of showing that the car had been opened.</p> <p>6. Appeal and error <&wkey;!05l (2) — Error in admission of testimqny held harmless. .</p> <p>Error in the admission of testimony as to a fact shown by undisputed evidence is without injury.</p> <p>7. Evidence &wkey;>l23(8) — Questions by defendant’s agent after arrest held part of res gestee and admissible.</p> <p>In an action against a railroad for false imprisonment by their agent, a special policeman, based o.n an arrest1 of plaintiff and another about a car of apples, where plaintiff was shown to have been on top of the car and his companion inside of the bunker, and that after the arrest of plaintiff defendant’s agent had shut up the bunkers of the car, leaving plaintiff’s companion inside, testimony that defendant’s agent thereafter asked plaintiff’s companion “How he was making out” — that is, if he could get air — held part of the res gestee and admissible.</p> <p>8. Evidence &wkey;>l23(8) — Testimony held part of res gestee and admissible on question of length of imprisonment.</p> <p>In an action for damages for false imprisonment against a railroad company, testimony that after plaintiff’s arrest by defendant’s agent, while about a car of apples, defendant’s yardmaster had requested the agent having plaintiff in his custody to release him so that plaintiff might complete his work, stating that he could be thereafter apprehended, held a part of the res gestae and admissible aá tending to show how long plaintiff was detained.</p> <p>9. Witnesses <&wkey;>268(l) — Cross-examination held. legitimate as showing innocence of person arrested.</p> <p>In an action for wrongful arrest and imprisonment on a charge of stealing apples from a freight car, where defendant’s agent causing the arrest testified that plaintiff had apples in his pockets when arrested, but that they were not taken from him, and the plaintiff had testified that he had no apples, it was not error to permit plaintiff on cross-examination to .ask the witness the question, “Isn’t it customary for a police officer to take the evidence when he arrests a man? to which the witness replied, “Yes, sir;” such cross-examination being legitimate as tending to. show plaintiff had no apples on his person.</p> <p>10. False imprisonment <&wkey;39 — Agency with; authority to arrest held for jury.</p> <p>In an action against a railroad for wrongful arrest and imprisonment, evidence held sufficient to go to the jury on the question whether the person making the arrest was defendant’s special police agent at the time with authority to make arrests.</p> <p>11. Trial &wkey;>260(I)— Denial of charges covered by others given not error.</p> <p>Denial of requested charges which are covered by other charges given is not error.</p> <p>12. Trial <&wkey;25I (2) — Denial of instructions relating to count of complaint previously stricken not error.</p> <p>In an action for false imprisonment, denial of requested charges relating to a count which had been withdrawn or stricken is not error.</p> <p>13. Appeal and error <&wkey;1078(4)— Assigned errors not argued in brief will not be considered.</p> <p>Assignments of error in the court’s refusal of requested charges will not be. considered on appeal where such errors are not argued in appellant’s brief. ■</p> <p>14. False imprisonment &wkey;>35 — Punitive damages may be recovered.</p> <p>Punitive damages may he recovered for a wrongful arrest and imprisonment when based' on evidence that there was no probable cause-for the defendant to believe plaintiff guilty,. ,.and, though the lack of probable cause does not in itself establish malice, it may justify the jury in concluding that the motive prompting, the arrest was malice.</p> <p><S=»For other eases see same topic and KEY-NUMBER ip all Key-Numbered Digests and Indexes</p>

Greene, Ju.dge. Action by H. A. Wisdom against the Motor Sales Corporation. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. The measure of damages in an action for the conversion of a chattel is the fair market value of the chattel at the time and place of conversion, with interest to date of trial.' Howton v. Mathias, 197 Ala. 457, 73 South. 92;' Miller v. Millstead & Hill, 17 Ala..

C. B. Gwin, Judge. ■ Action for damages by O. Smitherman against James C. Davis, as Director General of Railroads. Judgment for plaintiff, and defendant appeals.

P. Almon, Judge. Bill .of T. B. Little against Mrs. R. A. Richardson and others. Decree for complainant, and respondents appeal.

W. Haralson, Judge. Bill of D. O. Austin against the Town of Scottsboro, J. D. Snodgrass, as Mayor, and others as councilmen thereof. Decree for respondents, and complainant appeals. Held: resulting in the approval of the proposed bond issue. The town council on this supposed authority was, at the time of the filing of the bill, proceeding to advertise for bids and negotiate a sale of the bonds.

B. Smith, Judge. Action by W. J. Wood against the Hanover Fire Insurance Company. From a judgment for plaintiff, defendant appeals. The action is on a fire insurance policy by which defendant insured plaintiff’s stock of merchandise and store furniture and fixtures for one year for $2,000. It is alleged that the policy was issued on June 27 or 29, 1919, and that the insured property was destroyed by fire on December 5, 1919.

<p>1. Pleading <®r=>8(2) — Averment that defective street was public highway held not a mere conclusion.</p> <p>In an action for personal injuries sustained by a pedestrian due to stepping into a hole or depression in a public street, an averment that the street where the injury occurred “was then and there a public highway in said city” was not insufficient as a mere conclusion.</p> <p>2. Highways <®=ol05(2) — A/)t as to maintaining highways across county intersecting near county courthouse in incorporated town or ■ city construed.</p> <p>Acts'1915, p. 106, making it the duty of the court of county commissioners'to maintain one public highway running in an easterly and westerly direction across the county, and one public highway running in a northerly and southerly direction across the county, so as to pass the courthouse, and providing that, where such highways pass through any incorporated town or city it “shall maintain the same-within the corporate limits thereof,” Hield not to require the selection of two streets in the city wherein the county courthouse was located, but contemplates that within reasonable limits the convenience and suitability of the two intersecting highways might be consulted, and any ' two streets selected in the reasonably near neighborhood of the courthouse would be suf- ' ficient.</p> <p>3. Damages <@=»I68(2) — Evidence as to later injury to right .ankle properly excluded where action was for injury to left ankle by defect in street.</p> <p>In an action against a city for injuries sustained by a pedestrian, consisting of a sprain of the left ankle due to stepping into a depression > in a street, it was not error to exclude evidence as to later injuries to plaintiff’s right ankle; such injury having nothing to do with the accident.</p> <p>4. Municipal corporations <®=38I2(7) — Notice to city held sufficiently to specify element of loss of time due to personal injuries.</p> <p>In an action by a woman against a city for injuries to the ankle caused by stepping into a 'hole in a defective street, it was not error to refuse to instruct that plaintiff was not entitled to recover any damage for loss of time, for, while plaintiff may not have been entitled to compensation for household services rendered to her family within Code 1907, § 4487, still, under Acts 1915, p. 298, § 12, relating to the filing of claims for injuries with the city clerk, she specified the amount of damages claimed and that she had “lost time from her household duties,” and the claim was therefore sufficient to put the city upon notice as to damages for loss of time.</p> <p>other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Appeal and error &wkey;>l040(7) — Sustaining demurrer to plea held not prejudicial, where same defense available under another plea.</p> <p>Error cannot be predicated on the sustaining of a demurrer to a plea, where the complaining party had advantage of practically the same defense under another plea.</p> <p>2. Counties <&wkey;49 — In suit against treasurer defense of unrecorded settlement with county commissioners acting individually held without merit.</p> <p>In action by a county against its treasurer, there is no merit in a defense based on a settlement purporting to have been made between defendant and three members of the commissioners’ court acting individually and not as a court, no memorial of which was at any time entered on the records of the court by which only it could speak.</p> <p>3. Counties <&wkey;223 — In action to recover money of county treasurer, admission in evidence of checks to him from tax collector held proper.</p> <p>In an action by a county to recover money from its treasurer received from the county tax collector, there was no error in admitting checks and receipts showing payments to defendant as treasurer by the tax collector.</p> <p><S=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>4. Trial <&wkey;253(8) — Instruction in action by county to recover money from its treasurer held not to ignore evidence.</p> <p>In an action by a county to recover of its treasurer money allegedly received by him from the tax collector and wrongfully retained, an instruction, “If you conclude from the evidence that defendant * * * in his individual and private capacity borrowed from” the tax collector the money involved, “it would not make any difference whether the money was county money or not unless” defendant “knew it was county money,” but that if he knew the money borrowed was county money in the custody of the tax collector, then he would be liable, 'held not erroneous as ignoring evidence adduced to show it was a private loan and to establish a settlement with the commissioners’ court,</p> <p>5. Counties <&wkey;>224 — Instruction in action by county to recover money of treasurer held properly refused as confusing and misleading.</p> <p>In an action by a county to recover from its treasurer money received from the tax collector and improperly appropriated, defended on the ground that the money so received was a private loan, an instruction, “Unless you are reasonably satisfied from the testimony in this ease that defendant * * * received * * * the $1,000 check as taxes, which belonged to the plaintiff and state of Alabama, you must find the issues in favor of defendant,” held properly refused as confusing and misleading; it being unnecessary that the county should show that the state had an interest in the money.</p> <p>6. Trial &wkey;260( I) — Denial of instruction covered by others given not error.</p> <p>Where the court’s oral charge thoroughly stated the issues of the case, under Code 1907, § 5364, as amended by Laws 1915, p. 815, error cannot be predicated on denial of a charge covering in part the' same ground.</p> <p>®=s>For other cases see same topic and KEY-NUMliER in all Key-Numbered Digests and Indexes</p>

<p>' I. Equity <&wkey;275 — Bill and amended bill construed together as constituting one pleading.</p> <p>An original and amended bill are to be regarded simply as an entire bill, consisting in fact of but one record, and where the complainant fails to evidence his purpose to proceed entirely upon the amended bill, his pleadings will be taken as constituting but one bill of complaint.</p> <p>2. Equity &wkey;j275 — Amendment not abandoning original bill calls for construction of both as one pleading.</p> <p>Where there was nothing in either the introductory recital or in the substance' of an amendment to a bill of complaint in equity to indicate any purpose to abandon the original bill and proceed upon the amendment alone, the allegations of the original and amended bills i will be construed together as constituting one bill.</p> <p>3. Equity <&wkey;d 17, 275 — Amendment bringing in new parties not subject to objection by parties to original bill, nor an abandonment of it.</p> <p>An amendment to a bill in equity to- set aside certain conveyances, bringing in new parties with the allegations that they claim an interest- in the land alleged to have been fraudulently conveyed, in order that they may propound their claim and have it adjudicated, is not an abandonment of the original bill as previously amended, and any failure of such last amendment of the bill to sufficiently allege that such new parties -are interested in the subject-matter of the suit and therefore proper parties, is an 'objection available to such new parties alone, and cannot be complained of by the original parties.</p> <p>4. Appeal and error <&wkey;880(2) — Appellants cannot complain of error affecting exclusively another party.</p> <p>On appeal by defendants from an order overruling their demurrers to a bill in equity as amended, appellants cannot complain that the bill as amended shows no right to relief as against a codefendant, who prosecutes'no appeal from the order overruling her demurrer.</p> <p>@c*For other oases see same topic tind KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

A. Pearce, Judge. . Action in ejectment by Margaret'Harris, against the Geneva Mill Company. Judgment for defendant, and plaintiff appeals.

Action in ejectment by Nesbit Hambaugh against Jim McGraw and Jeff Scott. From a judgment for defendants, plaintiff appeals. The action is statutory ejectment.

<p>1. Appeal and error <§=>1048(5) — Overruling objection to question harmless where question was afterwards, modified before answer.</p> <p>It might be held that there was no reversible error in overruling a general objection to a question, because it was not answered; it, after the overruling of the objection and before answer, having been eked out by additional words of the interrogator, and the objeetiofl not having been renewed.</p> <p>2. Evidence <§=>130 — Tax adjuster’s valuation under agreement with owner not res inter alios acta in condemnation proceeding by county.</p> <p>The tax adjuster representing the county as well as the state, his valuation, under agreement with owner, of land the year before proceeding by the county to condemn part of it, is not in sueli proceeding open to objection of being res. inter alios acta.</p> <p>3. Evidence <@=>555 — Hypothesis in question to witness held supported by evidence.</p> <p>Property being taxed at 60 per cent, of its value, and M., the owner of land sought to be condemned, having testified that the value placed on it the year before by the tax adjuster under agreement with him was $30 an acre, the hypothesis, in a question to another witness, that “1U. had an agreement with the tax adjuster on a $50 valuation” (meaning $50 an aere), h'ad support in the evidence.</p> <p><2=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>4. Evidence &wkey;»558(9) — 'Witness may be cross, examined as to grounds of opinion and degree of conviction.</p> <p>On cross-examination of a witness, the grounds of his opinion as to value and the degree of conviction with which it was entertained may be inquired into.</p> <p>5. Eminent domain <&wkey;262(5)— Refusal to exclude answer held not appreciably injurious.</p> <p>Any error in refusal to exclude answer, “I don’t know; I think, if I had been the tax adjuster, I would have agreed with him on it,” of witness who, having testified in the condemnation proceedings that the value of M.’s land sought to be condemned was $35 to $40 an acre, was asked on cross-examination, “If you knew that M. had an agreement with the tax adjuster on a $50 valuation (for taxation for the previous year), would that change your idea of the value of that land in any way?” held not appreciably injurious.</p> <p>8. Evidence f&wkey;474(9) — No error in admitting opinion that new fencing would be required.</p> <p>There was no error in admitting testimony, in proceeding to condemn a right of way for a road through defendant’s land, that the road would require defendant to build two miles of fence; witness testifying to his familiarity with the lan'd, the proposed location of the road, the arrangement of defendant’s buildings with reference to the old and new roads, and generally to the reasons for his opinion that new fencing would be required.</p> <p>7. Appeal and error <&wkey;248 — Reservation of exceptions to rulings necessary.</p> <p>Rulings cannot be reviewed where exceptions were not reserved thereto.</p> <p>¿S^For other cases see same topic and KEY-NUMBER in all Key-Numb.ered Digests and Indexes</p>

F. Hobbs, Judge. ■Action by L. M. Grauer, as administrator of the estate of Hylton Grauer, deceased, against tbe Alabama Great Southern Railroad Company, for damages ■ for wrongful death of intestate. From a judgment for defendant, plaintiff appeals. Plaintiff’s intestate was killed, while walking on defendant’s track, by 'a local freight train, which was backing a short distance to a spur track.

K. McMorris, Judge. Action by the General Ordnance Company against E. L. Bowen. Erom a judgment for defendant, plaintiff appeals. Counsel argue the points raised, but in view of the decision it is not necessary to set out the brief. Where the appeal is from the original judgment and the bill of exceptions was not presented to the trial judge within 90 days, the appeal presents nothing for review.

<p>I. Carriers <s&wkey;3l4(l) — Facts alleged held to entitle plaintiff to protection of on© in act of becoming a passenger on invitation.</p> <p>A count alleging that car was signaled to stop, that it'overran the regular stopping place about two car lengthy, where it stopped to take on passengers, and that, while plaintiff was in the act of boarding, the conductor suddenly closed the entrance door, thereby injuring plaintiff’s band, held to sufficiently allege facts which entitle plaintiff to tbe care owing by tbe carrier to one in tbe act of becoming a passenger by carrier’s invitation, so that a demurrer on the ground that it did not appear that the plaintiff owed the defendant any duty was properly overruled.</p> <p>2. Carriers <&wkey;247(3) — invitation to become passenger on inierurban car not limited to the one giving signal to stop.</p> <p>When a carrier by electric interurban car manifested 'its purpose to receive passengers at a point where the car was stopped, its invitation was not limited to those who sigiialed the car to stoo.</p> <p>3. Carriers <&wkey;>287(5) — Must exercise care to prevent injury to one accepting invitation to become passenger.</p> <p>Where an invitation is extended by a carrier to take passage on its car by stopping the car for that purpose, it is a primary duty of the operatives in charge of the car to exercise reasonable care and diligence to see that no person in the actual process of accepting the invitation is in such position as to be injured if the ear without warning moved, or the entrance thereto, without notice, closed.</p> <p>4. Pleading &wkey;>'8 (I) — Averment of conclusion is not faulty if facts supporting it are alleged.</p> <p>A count is never faulty as averring a conclusion of the pleader if from the facts whi h are alleged the law itself ascribes the duty alleged as a conclusion.</p> <p>5. Appeal and error &wkey;>232(U/2) — Only grounds of demurrer assigned are to be considered on appeal.</p> <p>The review of the court’s ruling in overruling a demurrer to a count of tbe declaration is confined to the grounds of demurrer interposed to tbe count.</p> <p>6'. Limitation of actions &wkey;>l27(5) — -Count defectively alleging cause- of action can be amended after period has run.</p> <p>Where a count of a' declaration for personal injuries had been held on a former appeal bad because it defectively stated a cause of action", and not because it failed to state any ^ cause of action, it could be amended to cure the defects after the statute of limitation bad run against tbe cause of action.</p> <p>7. Appeal and error &wkey;>263(l) — Assignment of error in charge not considered in absence of exception thereto.</p> <p>An assignment of error to the oral charge of the court presents nothing for review where no exception appears to have been reserved to the matter referred to therein.</p> <p>8. Trial <&wkey;253 (4) — Requested charge denying recovery for want of proof of minor matter held misleading.</p> <p>In an action for injuries' to plaintiff when the door of electric car was • closed upon his band as be was attempting to enter the car, where there was no claim that the car had not stopped to receive passengers before plaintiff attempted to enter, a requested charge that, unless the customary signal was given to stop the car at a regular stopping place, the jury could not find for plaintiff, was misleading, as predicated on a minor, relatively remote matter averred in the complaint 'and as excluding any references to the gravamen of plaintiff’s cause of action.</p> <p>sz — -.T?nr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes</p> <p>9. Appeal and error <&wkey;l 170(9) — Refusal of requested charge denying recovery on minor issue held not prejudicial.</p> <p>Where plaintiff sought to recover for the injury to his hand caused by the conductor closing the entrance in an interurban car as he was attempting to board it after it had stopped, and alleged incidentally that the proper signal had.been given to stop the ear, the refusal of a requested instruction denying recovery if the jury found no signal to stop the car had been given was not substantially prejudicial, and a judgment for plaintiff will not be reversed therefor under rule 45 (175 Ala. xxi, 61 South, ix).</p> <p>Id. Trial &wkey;>85 — Court need not separate legal from illegal part of writing offered.</p> <p>Where plaintiff on cross-examination of defendant’s witness offered in evidence a written statement signed by the witness to impeach his testimony, and the only objection interposed was that it was an unsworn statement, and irrelevant, incompetent, and immaterial, it was not the duty of the court to separate the legal material in the writing from the illegal, if any.</p> <p>II. Witnesses &wkey;s379(4) — Statement contradicting material testimony of witness is admissible to impeach him.</p> <p>An unsworn written statement signed by a witness which was inconsistent with or contradicted material portions of the witness’ testimony is admissible as affecting the credibility of the witness.</p> <p>(S^oEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

K. McMorris, Judge. Action for damages by J. T. Stanley against J. T. Daniel. From a judgment for defendant, plaintiff appeals.

.Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge. Action by A. J. Williams against the Columbia Motors Company. Prom a judgment for plaintiff defendant appeals. Counts 1 ánd 4 are as follows: “1.

Circuit Court, Houston County; H. A. Pearce, Judge. Action of ejectment by William C. Oates against Dan Williams, witb D. C. Carmichael > and B. F. Cummings intervening to defend. From a judgment for plaintiff, defendants appeal. The source of plaintiff’s title is a deed from H. A. Powell and B. G. Farmer and their wives. Plaintiff did riot pay taxes on the property for the year 1910.

Appeal ’from Circuit Court, Barbour County; J. S. Williams, Judge. Petition of the State of Alabama, on the relation of T. M. Patterson, as Solicitor of the Third Judicial Circuit, to condemn a house and lot, the property of Joe Crews, Helen Crews, Jim James, and Charity James. Erom the decree, Helen Crews appeals. Affirmed.