Volume 3 — Alabama Appellate Reports

Heard before Hon. Armstead Br'own. Harwell Crawford was convicted of murder in tlie second degree, and be appeal's. Provo testified as a witness for the state that he saw the difficulty, and that both participants were drunk; that the defendant- was so drunk that every time be would make a pass at deceased be would fall; and that the deceased was also drunk, but did not fall until'be started to run.

Heard before Hon. H. A. Pearce. Ida Clark was indicted for murder in the first degree, convicted of manslaughter in the second degree, and appeals. There is a fatal defect in the venire which will work a reversal of the case. — Jackson v. The State, 171 Ala. 5; Mills v. The State, 1 Ala. App. 76; Welch v. The State, 1 Ala. App. 144. The defendant was improperly sentenced for payment of costs. — Bostoell v. The State, 1 Ala. App. 178.

Heard before Hon. A. E. Gamble. Andrew’ J. Mathes w’as convicted of murder in tbe second degree, and be appeals. Tbe following charges were refused to tbe defendant: (1) “In tbis case tbe proof show’s that the killing was done in a sudden rencounter. Tbe defendant sets up tbe defense that be did tbe killing in bis own necessary self-defense.

Heard before Hon. G. O. Chenault, Special Judge. Will Kirkwood was convicted of murder in tbe second degree, and be appeals. •Tbe matters not sufficiently appearing from tbe.opinion are as follows: Charge requested by and refused to tbe defendant: (23) “I charge you, gentlemen of tbe jury, that if there is one single fact proved to the satisfaction of tbe jury which is inconsistent with the defendant’s guilt, this is sufficient to raise a reasonable doubt, and .the jury…

Heard before Hon. H. A. Pearce. Frank Peacock was convicted of murder in the second degree, and appeals.

Heard before Hon. B. M. Miller. Charlie Wright was convicted of murder in the second degree, and he appeals. The defendant filed a plea in abatement under the circumstances set forth in the opinion, which plea is as follows: “(1) Because the grand jury which found the indictment in this case was not legally drawn.

Heard before Hon. Armstead Brown. Eugene Naftel was convicted of assault and battery, and he appeals. Objections to evidence sufficiently appear in the opinion of the court.

Heard before Hon. Armstead Brown. Fred Lee was convicted of assault with a weapon, and he appeals.

Heard before Hou. A. H. Alston. Ernest McGuire was convicted of an assault with a weapon and he appeals. It was competent to prove the message from Hardaman to the defendant by Layno McGuire and Davis which they delivered to the defendant, and what the defendant said at that time was part of the res gestae of that competent fact and was therefore competent. — Williams vs. State, 105 Ala. 97; Campbell vs. State, 133 Ala. 81.

Heard before Hon. D. W. S'peake. Jake Levens was indicted for an assault with intent to murder, convicted of an assault and battery, and he appeals. No brief reached the Reporter.

Heard before Hon. T. L. S'oweld. Dick Spear was convicted of assault and battery, and he appeals. The evidence as to the abusive language was admissible. — Sec. 6308, Code 1908; Brook v. The State, 155 Ala. 78. The court properly declined to permit the evidence of abusive language to' go to the jury. — Kiser r>.

Heard before Hou. A. E. Gamble. John and Ab Stanfield were convicted of assault and battery, and they appeal. Counsel insist that the verdict was not sufficient to authorize the judgment and sentence of the court. — Secs. 6306 and 7630, Code 1907; G-olson’s ■Case, 86 Ala. 601; Leoni’s Case, 44 Ala. 110; Lacy’s •Case, 58 Ala. 385; Leonard’s Case, 96 Ala. 108.

Heard before Hon. J. H. Ballentine. Elijah' Matthews was convicted of an assault and battery, and be appeals. The verdict showed a conviction of assault and battery, and hence, the judgment was not based upon the verdict, and is improper, and will not support an appeal. — Ayers v. The State, 71 Ala. 11; Oomph ell v. The State, 123 Ala- 72; Bridges v. The State, 124 Ala. 90; Marks v. The State, 131 Ala. 44.

ITearcl before Hon. E. J. Garrison. Irby Collins was convicted of assault with intent to murder, and he appeals. Most of the facts appear in the opinion of the court.

Heard before Hon. Armstead Brown. Clisby Davis was convicted of robbery, and he appeals. The indictment was sufficiently particular. — Garden v. The State, 89 Ala. 130; Gady v. The State, 83 Ala. 51. There was no fatal variance between tbe proof and tbe allegations. — State v. Murphy, 6 Ala. 845; Grant v. The State, 55 Ala. 201; Bates v. The State, 152 Ala. 77.

Heard before Hon. E. S. Lyman. Furman Stinson was convicted of larceny and he appeals. No brief reached the Reporter. The defendant is estopped by his own action from setting up former jeopardy. — Stone v. The State, 160 Ala. 94; Noel v. The State, 161 Ala. 25; Gunter v. The State, 88 Ala. 96. In any event, the plea was subject to the demurrers interposed. — Gross v. The State, 117 Ala. 73; Hollis v. The State, 123 Ala. 74; Black v. The State, 123 Ala. 78.

Heard before Hon. Armstead Brown. Anderson Campbell was convicted of larceny and he appeals. The corpus delicti was not proven, and it is not shown that there was any intent to steal. — Dozier v. The State. 130 Ala. 57; Holbrook v. The State, 107 Ala. 54; Beck-ham. v. The State, 100 Ala. 15. Thp ownership was improperly laid in the foreman. — Underwood v. The State, 72 Ala. 220; Viberg v. The State, 138 Ala. 100.

B. M. Miller. Richard Marsh was convicted of larceny and he appeals. There was a variance between the indictment and proof, and under the facts in this case, charge 16 should have been given. — Watson v. The State, 55 Ala. 150; McClellan v. The State, 121 Ala. 18; McGlerldn v. The State, 105 Ala. 112; State v. Plunkett, 2 Stew. 11; Stollenwerck v. The State, 55 Ala. 142. Counsel discuss other assignments of error, but it is not deemed necessary to here set it out.

Heard before Hon. Armstead Brown. John Ashley ivas convicted of burglary and he appeals. Counsel discuss errors assigned, but without citation of authority.

Heard before Hon. Mike Sollie. Willie Whitehurst Avas convicted of burglary and he appeals. The court erred in receiving the verdict in the manner indicated. — Harris v. The State, 153 Ala. 19; Hayes v. The State, 107 Ala. 4; Griffin v. The State, 90 Ala. 600; Simmons v. The State, 129 Ala. 47; Sec. 6, Const. 1901; Sec. 7317, Code 1907.

Heard before Hon. A. L. Bankin. Coot Martin was convicted of selling mortgaged property, and he appeals. The motion to quash should have been granted. Acts 1907, p. 237; Sec. 7423, Code 1907. The mortgage was improperly admitted in evidence. Sec. 7423, and 4004, Code 1907. Counsel discuss other assignments of error, but without citation of authority.

Heard before Hon. Armstead Brown. Lee Swint was convicted of disposing of mortgaged property, and he appeals. No brief reached the [Reporter. This Court will correct the error in the sentence for cost.— Doioling v. City of Troy, 56 South. 118. The state had a right on cross examination to show time of delivery of the mortgage. — Dr aloe v. The State, 110 Ala. 9; Wall v. The State, 56 South. 57.

Heard before Hon. T. L. Borum. Dave Hubbard was convicted of embezzlement, and be appeals. Under tbe facts in this case, tbe defendant was entitled to tbe charges requested by him. — Henderson v. The State, 129 Ala. 104; 78 Ala. 81; 77 Ala. 71; 55 Ala. 148. Tbe court properly refused tbe charges requested. — Farriss v. State, 85 Ala. 1; Ramsey v. State, 91 Ala. 29; Mcurx v. JAenkauf, 95 Ala. 453; A. G-.

Heard before Hon. Armstead Brown. Calvin Johnson was convicted of perjury, and he appeals.

Heard before Hon. Armstead Br'own. James Hadnot and another were convicted of burglary and they appeal. The court erred in excluding evidence as to what the dogs had done in the past, and as to whether or not they were ever known to leave the track and hunt rabbits. — -Simpson v. The State, 111 Ala. 6; Richardson v. The State, 145 Ala. 46; Hodge v. The State, 98 Ala. 10; Pedigo v. Commonwealth, 103 Ky. 41; 97 N. W. 598; 129 N. C. 497; Jackson v. The State, 159 Ala. 23.

Heard before Hon. T. L. Boeum. Buster Linton was convicted of enticing away a servant, and appeals. The affidavit was not sufficient as it failed to- aver that the contract was not for a longer period than one year. — Sec. 6850, Code 1907. While an affidavit may be amended, it cannot be amended so as to introduce a new case. — Miles v. The State, 94 Alá. 106; Simpson v. The State, 111 Ala. 6.

Heard before Hon. R. H. Jones. Andrew Hendley was convicted of trespass after warning, and he appeals. The facts sufficiently, appear in the opinion of the court.

Heard before Hon. T. L. Borum. Charlie C. Carter was convicted of practicing medicine without- a license, and he appeals.

Heard, before Hon. E. J. Garrison. Flora Truett Avas convicted of indecent exposure of person, and appeals.

Heard before Hon. James H. Ballentine. Will Bynum was convicted of failure to work tbe road and he appeals. No brief came to tbe Reporter. Tbe indictment was sufficient. — Brown v. The State, 63 Ala. 97.

Heard before Hon. T. L. Borum Garfield Williams was convicted of a misdemeanor and entered into a convict contract with a surety wlio confessed judgment with kirn for the fine and cost, and was convicted of violating this convict contract, from which conviction he appeals. Counsel discuss the assignments of error and conclude that defendant was entitled to the charges requested by him, and that the court erred in refusing them, but he cites no authority.

Heard before Hon. S. L. Weaver. Ernest Lower ivas convicted of carrying concealed weapons and he appeals. The act creating the Birmingham Court of common pleas was a local act, and did not have the notice by publication as required by section, 106, Constitution 1901. — Flood v. Kemoin, 113 Wis. ■ 673; Lyon v: Hunt, 11 Ala. 295; City ■of Ensley v. Simpson, 166 Ala. 366; State ex rel.

Heard before Hon. C. P. Almon. Hez Palmer and another were convicted of an offense,, and they appeal. The following is the plea in abatement: “Defendant Hez Palmer alleges that heretofore, to wit, at the February, 1910, term of the circuit court of Marion county,.

Heard before Hon. J. N. Ham. George Lee was convicted of a misdemeanor, and he appeals.

Heard before Hon. Armstead Bbown. Lee Lewis was convicted of resisting an officer; and he appeals. The indictment, omitting the formal part, was as follows: “Lee Lewis did knowingly and willfully oppose or resist R. L. Sears, an officer or constable of said county, in the lawful arrest of one Dave Robinson, who at the time of said lawful arrest was in the actual commission of a public offense.

Heard before Hon, Armstead Brown. Jacob Isaiali was convicted of carrying a concealed pistol, and he appeals. A1 constitutional question having arisen, it was referred to the Supreme Court under the statute, and in accordance with their answer upholding the constitutionality of the act, the judgment is affirmed after being corrected as to costs. See Isaiah v. The State, 58 South. 33, for the opinion on the constitutionality of the act.

Appeal, from Pike County Law Court. Heard before Hon. T. L. Borum. Eva Wrig’bt was convicted of disobeying a writ of habeas corpus proceedings, and she appeals. No brief reached the Reporter. The complaint embodies the material ingredients of the offense charged under section 7038, Code 1907, and was therefore sufficient.

Heard before Hon. M. Sollie. Ab. Scott was convicted of violating the prohibition law, and appeals. What transpired as to the first jury was as follows: “Gentlemen, this court does not need your services, and will not use you any longer. You cannot, and I will not permit you to, pollute the streams of justice any further by such verdicts as that you have just rendered.

Heard before Hon. A. H. Alston. Emmett Hollingsworth was convicted of violating the prohibition law, and he appeals. There was not sufficient evidence of the identity of the accused to authorize a conviction in this case, or a submission of the question of his identity to the jury.—Green v. The State, 68 Ala. 514; 14 Wall. 442; 12 Cyc. 594; 6 Enc. P. & P. 678. The evidence was sufficient to require a submission to the jury. — Griffin v. The State, 76 Ala. 29.

Equity Court. Heard before Hon. T. L. Sowell. Lee Johnson was convicted of violating the prohibition law, and he appeals. The prosecuting* witness testified that he bought four bottles of liquid, which in his best judgmnet was lager beer; that he drank the four bottles in about 80 minutes; and the solicitor asked him if he could feel any stimulating effects therefrom.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. A. A. Wilson was convicted of violating the prohibition law, and lie appeals. Tbe following charges were refused to the defendant: (B) “The court charges the jury that the law presumes every man innocent until his guilt is shown, and the minds of the jury are satisfied from the evidence to a moral certainty.

Heard before Hon. A. H. Alston. Jack Garner was convicted of violating the prohibition law and he appeals. The court erred in instructing the jury to find the defendant guilty if he knew that intoxicating liquors were kept for sale at his place. The defendant was not indicted under such a charge. — Acts 1909, p. 68; 69 Is. 124; 15 Atl. 68. The court erred in charging that the witness Smith was corroborated by witness Phillips.

Appeal, from Marion Circuit Court. Heard before Hon. C. P. Almon. Jordan Tice was convicted of manufacturing spirituous, vinous, malt or intoxicating liquors, and he appeals. Motion to exclude state’s evidence because not sufficient should have been granted. — Moore v. The State, 149 Ala. 66. On the same authority, the affirmative charge should have been given.

Heard before Hon. J. N. Ham. Tom Grantham ivas convicted of violating the prohibition la.AV, and he appeals. The only tiling shoivn as to the organization of the court is as folloivs. State of Alabama, Coffee County, 1st Week, July Third, 1911. The sheriff turned into the court, the venire of the jurors regularly drawn for the first week of court, to Añt: (then follows names of jurors, and those ayIio were excused, and those who did not appear).

Heard before Hon. A. H. Alston. Jolm Maxwell was convicted of selling intoxicating liquor, and lie appeals.

Heard before Hon. W. W. Haralson. Ed Wetzell was convicted of violating the prohibition law and he appeals. The evidence was not sufficient to bring the offense within the statute of limitations, and the court improperly denied the defendant the affirmative charge. — Gore v. The State, 58 Ala. 391. The charges were not numbered. — Mav^tin v. The State, 1 Ala. App. 217; Gibson v. The State, 89 Ala. 122.

Heard before Hon. T. L. S'owell. Bill O’Brien was convicted of violating the prohibition law and he appeals. Under the evidence in this case the defendant was entitled to, and should have been given the affirmative charge. — (loiter v. The State, 91 Ala. 94; Reynolds v. The State, 73 Ala. 3; Amos v. The State, 73 Ala. 501; Roberson v. The State, 100 Ala. 63; Roberson v. The State, 100 Ala.37.

Heard before Hon. D. W. Speake. Andrew Boyd was convicted of violating the prohibition law, and he appeals. The original affidavit was made before the judge of the county court, and complained that, before the filing of the complaint, Andrew Boyd sold, offered for sale, bartered, exchanged, or otherwise disposed of spirituous, vinous, or malt liquors.

Heard before Hon. Michael Sollie. Joe Rhodes was convicted of violating the prohibition law and he appeals. Selling has a well known meaning from a legal standpoint.- — Coker v. The State, 91 Ala. 94; Clark v. The State, 167 Ala. 102; 127 Alla. 579.

Heard before Hon. C. P. Alm!on. Rube Martin was convicted of violating the prohibition law, and he appeals.

Heard before Hon. T. L. Sowell. Joe Barrentine was convicted of violating the prohibition law and he appeals. There is no error apparent of record except the judgment and sentence, and this court will correct that or remand for proper sentence. — Dar ring ton v. The State, 87 Ala, 1; Johnson v. The State, 94 Ala. 35; Dowling v. City of Troy, 56 South. 116.

Heard before Hon. A. L. Nankin. Henry Morse was convicted of violating the prohibition law, and he appeals, The affidavit contains a single count in the alternative, and there could be but one conviction for a single separate offense, and the defendant was therefore entitled before opening the defense to have the state elect as to which of the several acts proven it would ask a conviction of. — Sec. 30, Acts 1909, p. 63; Untreinor v. State, 146 Ala. 133; Smith v. State, 52…

Heard before Hou. W. W. Haralson. Pick Rodeu was convicted of violating the prohibition law, and he appeals. The court was in error in permitting the cross examination, and should have protected the witness. — Mitchell v. The State, 94 Ala. G8; Downey v. The State, 115 Ala. 115; Amos v. State, 96 Ala. 120. Counsel discuss other assignments of error, but without further citation of authority.

Heard before Hon. W. W. Haralson. Pick Rocíen was convicted of violating the prohibition law and he appeals. Counsel discusses assignments of error, but without citation except to the provisions of Acts 1909, p. 63. The state was properly permitted to show that the witness was convicted of a felony.' — Sec. 4009, Code 1907; Win-gate v. State, 1 Ala. App. 40; Gordon v. State, 140 Ala. 29; Deal v. State, 136 Ala. 52.

Heard before Hon. W. W. Haralson. Pick Roden was convicted of violating the prohibition law and he appeals. For want of proof of some of the necessary elements charged, the defendant was entitled to the affirmative charge — Childs’ case, 55 Ala. 28. The court erred in permitting the revenue license to go to the jury.

Marshall Circuit Court, Heard before Hon. W. W. Haralson. Pick Roden was convicted of violating the prohibition law and he appeals. The argument of the solicitor was not warranted by the facts, was prejudicial and the court erred in not sustaining objections thereto. — Childers v. State, 86 Ala. 87; Coleman v. State, 87 Ala. 17.

Heard before Hon. W. W. Haralson. Pick Roden was convicted of violating the prohibition law and he appeals. The court erred in permitting it to be shown that the witness for the defendant claimed an interest in the liquor found in the defendant’s possession.^-Oramford v. The State, 112 Ala. 1; Martin v. The State, 104 Ala. 72; Stoudenmire v. Williamson, 29 Ala. 558.

Heard before Hon. Thomas W. Coleman, Jr. Will Carson was convicted of violating the prohibition law, and he appeals. Count 1 was the usual count for the sale of spirituous, vinous, or malt liquors without license and contrary to law. Count 2 was for the manufacture, selling, offering for sale, barter, exchange, giving away, or furnishing at public places, spirituous, vinous, or malt liquors, without license and contrary to law.

<p> Violating Prohibition Load. </p> <p>1. Appeal and Error; Harmless Error; Evidence. — Where a witness is subsequently permitted to testify fully as to a matter, no prejudicial error intervened on account of a former exclusion of the evidence.</p> <p>2. Same. — Where a witness answers a question as to whether his employer had a revenue license at the time, by stating that he did not know, he is not prejudiced by a ruling permitting the question and the answer, as it was not unfavorable to him.</p> <p>3. Evidence; Vncommunieated Motive. — The question as to why a witness went to his uncle’s, is properly excluded as calling for an uncommunicated motive for his act</p> <p>4. Witnesses; Recalling; Discretion. — Ordinarily it is within the court’s discretion to refuse to permit a witness to be recalled for further examination.</p> <p>5. Intoxicating Liquors; Nature; Offense. — The illegal sale of malt liquor is a violation of the prohibition law whether the malt liquor was intoxicating or not.</p>

Heard before Hon. A. L. Rankin. L. W. Henley was convicted of violating the prohibition law and he appeals. The court erred in permitting it to be shown that whisky was carried between Andalusia and Falco, as it was not shown that defendant had anything to do with it, or that the whisky alleged to have been sold was a part of this whisky. — Wells Atoms. Go. v. Means, 56 South. 594.

Heard before Hon. H. A. Pearce. William Phillips was convicted of manslaughter and he appeals. The sentence in this case ivas erroneous. — Zaner v. The State, 90 Ala, 653. The court erred in admitting evidence of the statements made by the deceased, as they were hearsay, and not dying declarations.- — 6 Enc. of Evi. p. 11; Welch v. The State. 156 Ala. 112: See also 156 Ala. 11: Id. 62: 139 Ala. 125; 136 Ala. 221; 131 Ala. 603; 130 Ala. 40; 94 Ala. 55; 89 Ala. 69.

Heard before Hon. Gaston Gunter. Habeas corpus by H. F. Brewer to secure his discharge from arrest under extradition proceedings. From an order denying relief petitioner appeals. No brief reached the Reporter. The order of the court should be affirmed on the authority of Ex parte Mohr, 73 Ala. 504; Barrierre v. The State, 142 Ala. 78; Loao v. The State, 56 Sfouth. 79.

Heard before Hou. J. E. Blackwood. Application by Jesse Simpson for a writ of habeas corpus to be discharged from custody. From an order quashing the proceeding, relator appeals. The order of the city court- ivas void, and therefore, could be attacked collaterally in any court. The rule is that the jurisdiction of a committing magistrate when, it once attaches cannot be usurped or ousted by habeas corpus proceedings.. —State v. Humphries, 125 Ala. 110.

Heard before Hon T. L. Boeum. Habeas corpus by Ike Jones, to be discharged from illegal sentence. From a judgment dismissing the writ, petitioner appeals. No brief reached the Reporter.

Heard before Hon. S. J. Petr.ee. Petition by E. T. Felker, for the custody of Edna Gray, a minor child, against Lottie Strickland and another. From a decree denying the prayer, petitioner appeals. Petitioner offered what purported to be a certified copy of an entry made in the minute book of the board of supervisors apprenticing said Edna Gray to W. T. Felker in Prentiss county, Miss.

Heard before Hon. Charles A. S!enn. Action by S. O. Robbins against the Western Union Telegraph Company, for damages for failure to promptly del iver telegram. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear in the opinion.

Heard before Hon. James J. Ray. Action of F. B. Perry against the Western Union Telegraph. Company, for damages for delay in delivery of telegram. Judgment for plaintiff and defendant appeals. Counsel discuss the assignments of error relative to evidence, and insist that a witness may not testify to his uncommunicated motive or intention. — Richardson v. Stringfellow, 100-Ala. 416; Tyson v. Hieronym/us, 127 Ala. 489; Burke v. Bragg, 89 Ala. 201.

Heard before Hou. W. W. Pearson. Action by Prestiss B. Reed against tbe Western Union Telegraph Company, for damages for failure to correctly transmit a message. Judgment for plaintiff and defendant appeals.

Appeal, from Gadsden City Court. Heard before Hon. John H. Disque. Action by Emma Snell against the Western Union Telegraph. Company, for damages for delay in the deliver}'' of two death messages. Judgment for plaintiff and defendant appeals. Counsel discuss rulings on the pleadings, but without citation of authority. They insist that they should have been permitted to show the free delivery limits of Alabama City. — 27 A. & E. Enc. of Law, 1029; W. ü.

Heard before Hon. T. L. S'owell. Action by B. E. Bennett against the Western Union Telegraph Company for damages for negligence in the transmission of a death message. Judgment for plaintiff and defendant appeals. Mental suffering is not recoverable under the facts in this case. — W. ü.

Heai’cT before Hon. H. A. Pearce. Trover and conversion by Y. J. Forrester & Brother, for the nse of Grimsley Brothers, against the J. A. May Company. Judgment for defendant and plaintiff appeals. All rights under a contract are forfeited when the conditions o'f the contract are broken, or are not waived. — Riley v. Dillon, 148 Ala. 283; Davis v. Millings, 141 Ala. 380; Benjamin on Sales, 301.

Heard before Hon. Mike Sollie. Trover by C. W. Sellers against S. T. Frazer for tbe conversion of a mule. Judgment for plaintiff and defendant appeals. Tbe defendant was entitled to tbe affirmative charge. —Conner et ad. v. Allien et erf.,'33 Ala. 516; Davis é Son v. Hurt, 114 Ala. 150; Johmon v. Wilson cG Co., 137 Ala. 470; Corbitt v. Reynolds, 68 Ala. 379; Heflin v. Slay, 78 Ala. 183; Bollmg v. Kirby, 90 Ala. 222.

Heard before Hon. John H. Disque. Trover by Harvey Wright against F. N. Hudson. Judgment for plaintiff and defendant appeals. Counsel discuss the rulings on the pleading, but in view of the opinion it is not deemed necessary to set them out. It is insisted that the landlord had a lien superior to plaintiff and hence, is entitled to the affirmative charge. — Sec. 4743, Code 1907; Hudson v. Wright, 1 Ala.

Heard before .Hon. H. P. Merritt, Special Judge. Trover by D. H. Riddle against George Blair. Judgment for plaintiff and defendant appeals. A laborer cannot convey any title whatever by executing a mortgage on a crop as the title is in the owner of the land. — Farrow v. Wooley, 149 Ala. 373; Jorckm v. Lindsey, 132 Ala. 576; Turlton v. Kimbrough, 150 Ala. 618; Vandegrift v. Hawkins, 164 Ala. 430. Therefore, the plaintiff acquired no title to the crop.

Appeal- from Geneva Circuit Court. Heard, before Hon. H. A. Pearce. Trover by C. D. Chapman & Co., against the Henderson-Mizell Mercantile Company. Judgment for plaintiff and defendant appeals. If any conversion occurred Pinckard was tbe only.one liable. — Dent é Cade v. Childs, 5 S'. & P. 392.

Heard before Hon. Ti-iomas W. Wert. Action by M. F. Patterson & Son against Abrabam Polytinsky for several acts of conversion and for money bad and received to tbe use of tbe plaintiffs. Judgment for plaintiffs, and defendant appeals. It appears that C. H. Morgan was indebted to Patterson & Sbn in tbe sum of $240, wbicb was secured by' mortgage, and this is tbe mortgage, tbe indorsement on which is spoken of in the opinion.

Heard before Hon. C. W. Ferguson. Action by Mrs. M. M. Bruce, against the Birmingham Railway, Light & Power Company for damages for creating and maintaining a nuisance. From a judgment for plaintiff, defendant appeals.

Heard before Hon. John Pelham. Action by J. M. Steverson against the Central of Georgia Bailway Company for creating and maintaining a nuisance. Judgment for plaintiff, and defendant appeals. In an action for damages, a party cannot recover for damages that he might have avoided by due diligence. — L. & N. v. Sullivan, 138 Ala. 379; Mitchell v. Sloss-S. S. é I. Oo., 49 South. 851; Lilly v. Fletcher, 81 Ala. 234; 12 South. 447; 22 Am. St. Bep. 441.

Heard before Hon. E. C. Crowe. Action by W. M. Fields against E. L. Higdon, and others, for damages for failure to levy an attachment. Judgment for plaintiff and defendant appeals.

Heard before Hou. S'. L. Brewer. Action by F. L. Parker against tbe Gramling-Spaulding Company, and others, for damages for tbe wrongful suing out of an attacbment, and tbe levy upon or sale of certain lands. Judgment for plaintiff in tbe sum of $465.00, and defendants appeal. Evidence of collateral facts wliicb sbed no light on tbe issues should not be received. — 1 Gr. Ev. (14 ed.) No. 52; Jeffersou Gotmty Saving Bank et al. v. Ebern, 84 Ala. 529.

Appeal, from Montgomery City Court. Heard before Hon. William H. Thomas. Action by Adelaide Scott against the Bigbee Fertilizer Company, for damages for maintaining a nuisance' resulting in injury to ber crops and land. Judgment for plaintiff and defendant appeals.

Heard before Hou. J. C. B. Gwin. Action by D. W. Houston against tbe Jefferson Fertilizer Company for damages for tbe death of a beifer. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. O. W. Ferguson.</p> <p>Action by R. C. Keith against Stanley, Son & Co., for damages to a piano while undertaking to remove same for hire. Judgment for plaintiff, and defendants appeal.</p> <p>The third plea is as follows: “That the plaintiff was guilty of negligence which proximately contributed to the injury of the said piano in this, to wit: That the plaintiff consented to an insufficient number of men attempting to move or load the said piano on the wagon of defendant.” Plea 4; “That plaintiff himself was guilty of contributory negligence which proximately contributed to the injury of the said piano, in this, to wit: That the plaintiff was himself superintending the moving and loading of the said piano, and that the same was loaded and moved according to his instructions.”</p> <p>The following is charge 1: “I charge you that the burden of proof is on the plaintiff in this case to show that the defendant or his agents or servants failed to use due care in handling the piano.”</p> <p>The following charge was refused to defendant, and made the basis of the sixteenth assignment of error. “I charge you that, if you believe from the evidence that plaintiff agreed with the manager of the defendant company that household furniture, and not a piano, was to be hauled, and that the defendant never ratified the act of Jim Maynard and Will Clements, in accepting said piano for transportation, then you must find for the defendant.</p> <p>The complaint was demurrable for not stating whether the defendant was a partnership or a corporation. — Reid ■& Go. v. McLeod, 20 Ala. 576; Moore ’& McGhee v. Burns, 60 Ala. 269; Bolling & Son v. Speller, 96 Ala. 269; 30 Cyc. 98. Counsel discuss the other assignments of error, hut without citation of authority.</p> <p>The name fairly imports a partnership or corporation, and as it is not necessary to allege corporate existence when suing a corporation, and as section 2506, Code 1907, authorizes a suit against a partnership in its common name, the demurrer was not well taken because of the designation of the party defendant. — B. L. & A. v. First Fat. Bank, 100 Ala. 251; Wymm, et al. v. Stewart, 42 Ala. 166; Conner & Trapp v. Reid, 93 Ala. 392. Process, was served and defendant answered by attorney, and hence, defendant cannot say that there was uncertainty as to its identity. — Authority supra. Counsel discuss other assignments of error, but without citation of authority.</p>

Heard before Hon. Charles A. Senn. Action by Tom Demmins against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. S. L. Brewer. Action by N. B. McPherson against the Western Railway of Alabama for damages to a cow. Judgment for plaintiff and defendant appeals.

Heard before Hon. Gaston Gunter. Action by M. C. Scott against the Bigbee Fertilizer Company for damages for maintaining a nuisance to the injury of plaintiff’s lands and crops. Judgment for plaintiff and defendant appeals. The court erred in sustaining demurrers to pleas 2, 3, 4, 5, 6 and 7. — McTamsh v. Carroll, 61 Am. Dec. 353; Coolidge v. Hager, 5 Am.

Heard before Hon. E. C. Crow. Action by F. B. Daniel against the Birmingham Railway, Light & Power Company, for damages for injury to a horse. Judgment for plaintiff and defendant appeals. Counsel discuss the complaint as amended and insist that it was subject to the demurrer-interposed, hut cite no authority in support of their contention.

Heard before Hon. Charles A. Senn. Action by W. B. Grant against the Taxicab Company for damages for breach of contract of carriage. From a judgment for plaintiff, defendant appeals.

Heard before Hon. Thomas W. Wert. Actions by R. G. Cortner and others against the Southern Railway Company for failure to deliver certain cotton. Judgment for plaintiff and defendant appeals. The court erred in ■directing a verdict for plaintiff. — B. R. L. & P. Co. v. Enslen, 144 Ala. 343; So. Ry. v. Nelson, 148 Ala. 88. The court was in error in striking the motion for a new trial. — Sec. 5372, Code 1907.

Heard before Hou. A. E. Gamble. Action by C. W. Massingill against J. L. Edwards for setting out a fire and destroying a fence; From a judgment for plaintiff, defendant appeals. The first count is for punitive damages.

Heard before Hon. W. W. Haralson.. Action by B. F. Proctor against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. The complaint as amended was as follows: “(A) Plaintiff claims of the defendant $150.00 damages for injury to one car load of cattle shipped by the defendant as a common carrier for hire for the plaintiff from Scottsboro, Ala., to Atlanta, in the state of Georgia, on or about the 8th day of July, 1907.

Heard before Hob. C. W. Fergiisou. Actiou by Wiuuie Audersou agaiust the Birmiugham Railway, Light & Power Oompauy for damages for refusiug to trausport her. Judgmeut for plaiutiff aud defeudaut appeals. Tlie complaint did not sufficiently disclose such relation between the plaintiff and defendant as to raise the duty on defendant to carry her as a passenger*. — N. Bir. By. Co. v. Liddicoat, 99 Ala. 546; Pullmcm Ccur. Co. v. Kraus] 145 Ala. 395; 4 St. By. Bep. 571; 107 Am.

Heard, before Hon. D. W. Speak®. Action by Daniels against t-be North Alabama Traction Company for damages for carrying him past his destination. Judgment for plaintiff in the sum of f1,000, and defendant .appeals.

Heard before Hon. A. O. Lane. Action by Alice Knight against the Central of Georgia Railway Company for damages for delay in transportation and breach of contract. Judgment for plaintiff in the sum of $400, and defendant appeals. The oral charge complained of is as follows: “If you find that they did not agree to furnish a stateroom, you will find for the defendant, unless you should find that it was impracticable for her to travel on the boat without a stateroom.

Heard before Hon. E. C. Crow. Action by Amelia Mindler against the Birmingham Railway, Light & Power Company for damage to her as a passenger, received while alighting from one of its cars. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. C. B. Gwin. Action by John Hunnieutt against tbe Birmingham Railway, Light & Power Company for damages for injury to him while a passenger. Judgment for plaintiff, and defendant appeals. The pleadings sufficiently appear from the opinion, as do the exceptions to evidence.

Appear from Morgan Law and Equity Court. Heard before Hon. Thomas W. Wert. Action by Laura Taylor against the North Alabama Traction Company for damages for injury while a passenger. Judgment for plaintiff, and defendant appeals. The two- questions propounded to Zella Coleman on-cross-examination were: “(1) She- started to get off while it was not running slow enough for a woman to get- off in safety, is that right?

Heard before Hon. T. L. Sowell. Assumpsit by W. P. Cooper & Son against the Carbon Hill & Lost Creek Coal Company. Judgment for plaintiff and defendant appeals. Counsel discuss assignments of error in a general way, but without citation of authority. No such insistence is made in brief as to require this court to consider the errors assigned. — Harper v. Raisin F. Go., 148 Ala. 360; Fitts v. Phoenix A. Go., 153 Ala. 635; Hodges v. Ranibo, 155 Ala. 175.

Heard before Hon. A. H. Alston. Action by the Albertville Mercantile Company against J. W. Hughes and another. Judgment for plaintiff and defendants appeal.

Heard before Hou. W. W. Peakson. Assumpsit by the Chilton Warehouse and Manufacturing Company against J. C. Lewis. Judgment for defendant and plaintiff appeals. The question presented involves a construction of sections of the Code relating to the sale of fertilizers. — Secs. 37 to.48 especially.

Heard before Hon. A. O. Lane. Action by the National Aniline & Chemical Company against the National Chemical Company and others, a partnership. From' a judgment for plaintiff, defendants appeal. The action was on the common counts for goods sold and delivered.

Heard before Hon. A. O. Lane. Assumpsit by Goldstein & C'o., against B. Zavello. Judgment for plaintiff and defendant appeals, and requests mandamus. Where there is neither a statement of cause of action shown in the record or a complaint in either court, there is nothing to support the judgment. — Arenclale v. Moore, 42 Ala. 482; Steel-man v. Owen, 8 Port. 562; Gayle v. Turner, Minor 204; Ritter v. Hoy, 55 South. 1034.

Heard before Hon. W. W. Peabson. Action by Annie Hill against the District Grand Lodge No. 23, United Order of Odd Fellows in America. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion of the court. The following portions of the oral charge were excepted to: (1) “But- it is insisted here by the plaintiff that Pines was financial, in that he was entitled to certain sick benefits, and that these sick benefits paid the premium.

Appear from Morgan Circuit Court. Heard before Hon. Marvin West, Special Judge. Action by Charles S. McCauley against J. E. Penney on a due bill. From a judgment for plaintiff, defendant appeals.

Heard, before Hon. W. W. Pearson. Action by McQueen Smith against J. L. Alexander. From a judgment for plaintiff, defendant appeals. The substance of the contract appears in the opinion of the court.

Heard before Hon. C. P. Almon. Action by W. P. Lowery against the Northern Alabama Bailroad Company, for commission on judgment. Judgment for plaintiff and defendant appeals. Counsel insist that the act under which the court was held was repealed by the adoption of the Code of 1907, and that the court was held at a time not authorized by law, and that hence, the judgment is void. — State u. Towery, 143 Ala. 48; Hodo v. The State, 156'Ala. 43; Johnson v. The State, 141 Ala. 7.

Heard before Hon. S. L. Brewer. Assumpsit by John Spratling against John Hughes and another. Judgment for plaintiff and defendant appeals. The instrument introduced. in evidence was not a sealed instrument. — Breitling v. Marks, 128 Ala. 222. A bond is not a promissory note. — Phillips v. Am. G-. Oo., 110 Ala. 521. A variance is properly raised by- a request for the general charge.— N. Y. L. I. Oo. v. McPherson, 137 Ala. 119. No brief reached the Reporter.

Heard before Hon. T. L. Sowell. Assumpsit by W. P. McElroy against Shannon & Company, and another. Judgment for plaintiff and defendant appeals. The 3rd plea is as follows: There is no consideration for the account sued on. The court erred in striking plea 3. — Olosky v. Enslen> 103 Ala. 97; 3 Ala. 316. It set up a defense which was required to be specially pleaded. — 4 Mayf. 484. The court erred in failing to grant defendant’s motion for a new trial.- — S'O; Ry.

Heard before Hon. O. J. Síemmes. Assumpsit by Haas. Bros. Packing Company against Florence M. Cameron. Judgment for plaintiff and defendant appeals. The promise, if made, was within the statute of frauds. — Poke v. Wilson, 127 Ala. 240. The party has the right to request instructions to the jury based upon hypotheses which the evidence in his favor tends to establish.- — Oriol v. Marks, 51 Ala. 566; Bibb v. Mitchell, 58 Ala. 657; Bates v. Hart, 124 Ala. 427.

Heard before Hon. J. J. Curtis. Action by J. M. Herron against Long-Richardson Mercantile Company. From a judgment for plaintiff, defendant appeals. Plaintiff was a farmer, and bad a tenant named Abel, to whom be gave an order, directed to J. M. Cranford, bookkeeper for tbe Cranford Mercantile Company, directing them to let Abel have $40 or $50 worth of goods, and to take bis note for same, and be would come in and take up tbe note, or sign it himself.

Heard before Hon. Gaston Gunter. Assumpsit by tbe Corn Products Defining Company against Dreyfus Bros. Plaintiff took a. nonsuit with bill of exceptions and appealed. Counsel set out and discuss the pleadings and the action of the court thereon with citation of authority, but in view of the opinion it is not deemed necessary to here set them out.

Heard before Hon. W. W. Haralson. Action by W. H. Sells against I. N. Price. From a judgment for defendant, plaintiff appeals. Tbe facts sufficiently appear, in the opinion of the court.

Heard before Hon. A. A. Coleman. Action by Sam Gingold against tbe Cosmopolitan Fire Insurance Company on two fire policies. Judgment for plaintiff, and defendant appeals. Tbe complaint is in tbe usual Code form, with tbe averment additionally that tbe policies were originally issued to one David Caplan, and on, to wit, October. 17, 1907, so transferred and assigned as to cover tbe property belonging to Bosen & Caplan.

Heard before Hon. A. H. Alston. Assumpsit by B. W. Sherrod against E. L. Bickley. Judgment for plaintiff and defendant appeals. The court, erred in giving the affirmative charge as it should never be given where there is conflict' in the evidence or reasonable inferences may be drawn therefrom unfavorable to the right of recovery. — Peters v. Railroad Go., 135 Ala. 537; 5 Ma.yf. 150.

Heard before Hon. M. Sollie. Action by J. W. McLeod against J. M. Flournoy on tbe common counts, and on a special contract for the price of certain cross-ties. Judgment for defendant, and plaintiff appeals.

Heard before Hon. A. O. Lane. Action by Fannie W. Smith against the Chattanooga Brewing Company to recover for use and occupation of a storehouse and for rent. Judgment for plaintiff, and the defendant appeals, and assigns as error the rulings of the court on the pleadings and the evidence. The plaintiff also filed a cross-assignment of error as to the deniel by the court of lier right to recover attorney’s fees.

Heard before Hon. E. O. Crow. Action by Fannie W. Smith against the Chattanooga Brewing Company. Judgment for plaintiff, and defendant appeals.. Counsel makes the same contentions and cites the same authorities as in the case between the same parties next above reported. Counsel makes the same contentions and cites the same authorities as in the case between the same parties next above reported.

Heard before Hon. H. A. Pearce. Assumpsit by G. E. Boland against M. S. Davie. Judgment for plaintiff and defendant appeals. The court erred in permitting the plaintiff to refresh bis memory by reference to the book. — Jacques v. Horton, 76' Ala. 238; Galloway v. Varner, 77 Ala. 541; Stoudenmire v. Harper, 81 Ala. 241; Anderson v. English, 121 Ala. 272.

Heard before Hon. J. N. Ham. Assumpsit by the Elba Drug Company against Pate Lee. Judgment for defendant and plaintiff appeals. The judgment was rendered by a court that has been abolished by an act of the legislature prior to the filing of the complaint in that court. This was a court of statutory creation and the legislature could abolish it without conferring its functions or jurisdictions on any other court. — State ex rel.

Heard before Hon. A. E. G4MBL®. Assumpsit by the J. Zimmern’s Company against the Magnolia Shingle Company and others. Judgment for plaintiffs and defendants appeal. The Magnolia Shingle Company was a de facto corporation. — Snider Sons Go. v. Troy, 91 Ala. 228; Morawetz, Private Corporations, sec. 777; 10 Cyc. 253; 7 A. & E. Enc. of Law, '655; Cook on Corporations, sec. 234. Its existence as a corporation could not be collaterally inquired into.— G. A. & M. Assn. v. Ala.

Heard before Hon. O. C. Nesmith. Action by M. E>. Brandes against Speilberger Bros, upon an assignment of wages contract. Judgment for plaintiff, and defendants appeal. The contract declared on is as follows: “State of Alabama., Jefferson County.

Heard before Hon. H. A. Pearce. Detinue by the Faircloth Byrd Company against J. T. Stinson, with Sarah Stinson as claimant. Judgment for plaintiff, and defendant appeals. The following charges were refused to the claimant: (1) “If the jury are not reasonably satisfied from the evidence in this case that, at the time the levy was made upon the property involved in this suit, J..

Equity Court. Heard before Hon. Thomas W. Wert. Detinue by J. W. Wilhite and another against J. A. Hartselle & Company. Judgment for plaintiff, defendants appeal. Counsel discuss the errors assigned as shown by the bill of exceptions, and insist upon the authorities cited that the judgment should be reversed, hut in view of the opinion it is not deemed necessary to here set them out.

Heard before Hon. B. M. Miller. Detinue by the Selma National Bank against L. H. Moseley.. Judgment for plaintiff and defendant appeals.

Heard before Hon. John Pelham. Detinue and conversion by Avery & Co., against W. M. Turner. Judgment for defendant and plaintiff appeals. Under tbe statement of the judgment entry, the court will hold on error that' the pleadings were waived, and that the parties elected to try the cause on the issue joined as shown by the judgment entry. — Fagin v. Pearson■, 42 Ala. 322; Deering v. Smith, 4 Ala. 432.

Heard before Hon. D. W. S'peai-ce. Detinue by tbe Broyles Furniture Company against J. Lynn. Judgment for plaintiff and defendant appeals. When the property was removed from Jefferson to Cnllman county, its disposition and transfer of title was subject to the laws in force in Cullman county. — Weinstein v. Freyer, 93 Ala. .261; J ones v. J ones, 18 Ala. 248.

Heard before Hou. S. L. Brewer. Detinue and assumpsit by G. P. Nolen against E. M.. Peters. Judgment for plaintiff and defendant appeals. Submitted on motion to dismiss the appeal and on the merits.

Heard before Hon. E. C. Crow. Proceedings by the state of Alabama on the relation of W. L. Metcalf against F. C. Cheek, for a search and seizure of prohibited liquors, as provided by the Fuller Bill. From a judgment condemning the liquors, the claimant Cheek appeals. The court ■erred in overruling the motion to quash the affidavit.— Acts 1909, p. 74. The court erred in admitting testimony of the witness Chew.

Heard before Hon. J. C. B. Gwin. Sam Bell was convicted of violating an ordinance of the town of Jonesboro, and he appeals.

Heard before Hon. M. Soma Contest of exemptions between T. W. Chaffin as judgment creditor and SI R. Pilcher as judgment defendant. Judgment for plaintiff and defendant appeals. Chaffin had recovered judgment in the circuit court of Dale county against Pilcher upon a debt.

Heard before Hon. E. C. Crow. Action by Mrs. Mary E. Elmit against the Birmingham Railway, Light & Power Compay, for damages suffered while a passenger. Judgment for plaintiff and defendant appeals. The court overlooked sec. 5362, Code 1907, and infringed its prohibitive provisions, when he directed a verdict for-the plaintiff.

Heard before Hon. C. P. Almon. Action by Ella Masterson and others against P. O’Reilly for the statutory penalty for cutting or destroying trees. Judgment for plaintiff in a sum less than $50, and defendant appeals. The Court below erred in taxing the costs of the case to the defendant, if the case should be held to be in tort. — Code of Alabama, Sec. 3663; Quttery v. Boshell, 132 Ala. 596; Harden v. Maddox, 141 Ala. 506.