Volume 4 — Alabama Appellate Reports

Heard before Hon. E. J. Garrison. Jim Robinson was indicted for murder in the first degree, convicted of murder in the second degree, and he appeals.

Heard before Hon. L. J. Bugg, Special Judge. James R. Bailey was convicted of homicide and he appeals. Felony charges can only be originated by indictment, and the court whose grand jury finds the indictment is the court with jurisdiction to try the case so originated. — Em parte O’Neal, 45 South. 713; State v. Fuller, 41 South. 990.

Heard before Hon. W. G. McCorvey. Alex Murphy was convicted of manslaughter in the first degree and he appeals. The act creating the county court was violative of the Constitution, section 143, in that it deprived the circuit court of its jurisdiction to try criminal cases.—Adcock v. The State, 142 Ala. 30; Ex parte O’Neal, 45 South. 713; State ex rel. v. Fuller, 41 South. 990.

Heard before Hon. S. L. Brewer. Oscar Baker was indicted for murder in the second degree, and he appeals.

Heard before Hon. John T. Laoicland. Alexander McMurphy was convicted of manslaughter in the first degree, and he appeals. The following charges were refused to the defendant: (2) “The court charges the jury that danger that will excuse one from killing another need not be real or actual.

Heard before Hon. S. L. Brewer. Jim Huguley was convicted of murder in the second degree and he appeals. No brief reached the Reporter. The appellate court will not review the action of the trial court in refusing to grant a new trial in a criminal case. —Dorsey v. The State, 107 Ala. 157; Ferguson v. The State, 149 Ala. 21. Charges 3 and. 12 were properly refused. — Nicholson v. The State, 117 Ala. 32; Lmer v. The State, 124 Ala. 407.

Heard before Hon. A. H. Alston. Cross Pearce was convicted of murder in the second degree, and he appeals. Counsel discuss the testimony introduced and excluded to which objection was interposed, but cite no authority in support of most of their contentions.

Heard before Hon. Travis Williams, Special Judge. Luther Johnson was convicted of murder in the second degree and he appeals.

Heard before Hon. M. Frank Cahalan. Will Harris was convicted of robbery, and he appeals.

Heard before Hon. Mike Sollie. y/illiam McGee was .convicted of assault and battery upon his wife, .and he appeals. The wife was not a competent witness against .the husband. — Robinson v. Robinson, 44 Ala. 227. Having permitted her to be introduced, the court erred in permitting another witness to give testimony in direct. conflict with that given by the wife. — Winston v. M.osely, 2 Stew. 137.

Heard before Hon. Thomas W. Wert. William Johnson was convicted of an assault and battery and he appeals.

Heard before Hon. B. M. Miller, General Moore, Jr., was convicted of assault and battery, and be appeals. The admission of testimony as to tbe defendant’s father was erroneous and clearly injurious, and tbe defendant should have been acquitted. In fact, the court should have given the affirmative charge. — 22 N. W. 895; Ballou v. The State, 24 S. E. 452; Hamilton v. The State, 41 N. E.-528; Wharton’s Crim. Evi., pp. 670-673. No brief came to the Reporter.

Heard before Hon. A. L. Rankin. Jasper Huckabaa and others were convicted of assault and battery, and they appeal.' The court erred in permitting the witness to be questioned as to her conviction in the Mayor’s courts — Gilman v. The State, 165 Ala. 185. There was no error in permitting the witness to state about her conviction in the mayor’s court.— Sections 1222 and 4008, Code 1907.

<p> Assault mid Battery. </p> <p>Appeal and Error; Judgment; Necessity. — Where the record shows a conviction and the assessment by the jury of a. fine and a confession of judgment by accused, and his sureties, but does not show the entry of a judgment- of conviction on the verdict, the appeal cannot be sustained.</p>

Heard before Hon. Armstead Brown. Edmund Carter was convicted of an assault and battery with a weapon, and be appeals. Tbe court erred in not excluding tbe testimony as to cbar-. acter since tbe opinion of tbe witness was formed from wbat he bad beard since tbe shooting. — Griffin v. The State, 90 Ala. 589; Bracken v. The State, 111 Ala. 68; White v. The State, 111 Ala. 92; Smith v. The State, 118 Ala. 120; Buchanan v. The State, 120 Ala. 670; McGuire v. The State, 2 Ala.

Heard before Hon. C. P. Almon. Nat Key was convicted of burglary, and he- appeals. Tbe solicitor in bis argument stated that no one denied that defendant bad tbe bides and sold them to a white man in two or three weeks after tbe place was burglarized.

Heard before Hon. C. P. Almon. John Swope was convicted of larceny, and he appeals. The prosecuting witness had been convicted of selling whisky illegally, and the defendant should have been permitted to show it. — Mitchell v. The State, 94 Ala. 73; Smith v. The State, 129 Ala. 89. This applies to the policeman Atkinson. Counsel discuss other assignments of error relative to evidence, but without citation of authority.

Heard before Hon. John T. Lackland. Green Chaney and others were convicted of larceny, and they appeal. Tbe defendants were entitled to have a verdict directed because of tbe fact that tbe only evidence connecting tbe defendants with the crime was that of accomplices. —Sec. 7897, Code 1907; Davis v. The State, 59 Ala. 104.

Heard before Hon. Thomas W. Coleman, Jr. Jim Williams was convicted of arson, and be appeals. For questions certified to the Supreme Court, and answered in this case* see 176 Ala., 58 South. 921. The ownership must be alleged and must be proven as laid in an indictment for arson. — Marker v. The State, 26 Ala. 72; Graham v. The State, 40 Ala. 659; Smoke v. The State, 87 Ala. 143; Thomas v. The State, 116 Ala. 461.

Clair Circuit Court. ■ Heard before Hou. John W. Inzer. • Will Turner was convicted of shooting into a car, and he appeals. There was not sufficient evidence of the corpus delicti to corroborate the confession in order to support a conviction of felony. —Matthews v. The State, 55 Ala. 187; Johnson v. The State, 59 Ala. 40; Winslow v; The State, 76 Ala. 47; Bowling v. The State, 98 Ala. 83; Bradford v. The State, 104 Ala. 68; Hcurden r>. The State, 109 Ala.'50.

Heard before Hon. J. H. Ballentine. ' Bruce Campbell was convicted of boisterous and indecent conduct in a church, while in an intoxicated condition, and he appeals. No brief came to the Reporter. The demurrer to the indictment was properly overruled.- — - Roden v. The State, 136 Ala. 89; State v. Moriarty, 74 Ind. 103; State v. Brown, 38 Kan. 390.

Heard before Hon. B. M. Miller........ John, alias Shug Clark, was convicted of violating the prohibition law, and from a judgment taxing him with a stenographer’s fee, he appeals. ■ The provisions of section 5 are not germane or in any manner related to the title of Acts 1909, p. 263. — Ex parte Gayles, 108 Ala. 311; Brown v. The State, 115 Ala. 74; Dowling v. Troy, 56 South. 118.

Heard before Hon. Armstead Brown. William Bonner was convicted of carrying a concealed weapon, and he appeals. No brief reached the Reporter. The demurrers were properly overruled, on the authority of Vines v. The State, 55 South. 1038; Isaiah v. The State, 58 South. 53.

Heard before Hon. E. J. Gilder. Luke Gillespie was convicted of carrying a concealed pistol, and he appeals. No brief reached the Reporter. The demurrers were properly overruled, on the authority of Tines v. The State, 58 South. 1038; Isaiah v. The State, 58 South. 53.

Heard before Hon. A. E. Gamble. George Ward was convicted of carrying a concealed pistol, and he appeals. Counsel discuss the assignments of error relative to evidence, but Avithout citation of authority.

Heard before Hon. T. L. Borum. George Nichols ivas convicted of carrying concealed pistol and he appeals. Counsel insists that • Acts 1909, p. 258, is unconstitutional as violative of sections 22, 45, 105, and 108, Constitution 1901, and in support thereof cites. — 14 Ala. 627; 65 Ala. 193; 73 Ala. 480; 95 Ala. 521; 106 Ala; 501. He further insists that the court erred in directing a verdict against the defendant, hut cites no authority in support thereof.

Heard before Hon- J. G. B. Gwin. Otto Posey was convicted of carrying a concealed pistol, and he appeals. The act is unconstitutional. — Sec. 15, Constitution 1901; Reach v. The State, 94 Ala. 118; Sec. 26, Constitution 1901; State v. Reid, 1 Ala. 612; Ex parte Byrd, 84 Ala. 17; Miller v. J ones, 80 Ala. 89. The intent with which a pistol is carried is immaterial. — Barker’s case, 126 Ala. 83; Fielding’s case, 135 Ala. 56; 101 Am. St- Bep. 215.

Heard before Hon. A. L. Nankin. John Hicks was convicted of carrying a. concealed pistol and he appeals.

Heard before Hon. Charles E. Waller. Will Brown was convicted of vagrancy, and he appeals. The demurrers to the indictment should have been sustained. — McGee v. The State, 115 Ala. 135, and cases there cited. The court should- have discharged the prisoner for insufficiency of the evidence. — Taylor v. The State, 147 Ala. 132.

Heard before Hon. John A. Campbell. Joe Trawick was convicted of vagrancy, and lie appeals.

Heard before Hon. H. A. Pearce. James S. Gardner was convicted of obtaining money under false pretenses, and he appeals.

Macon County .Court- Heard before Hon. M. B. Abercrombie. Shep Richmond was convicted of wantonly or intentionally killing or maiming a cow, and he appeals. No brief came to tbe Reporter. The demurrers to the affidavit Avere properly overruled.— Billingslea v. State, 68 Ala. 486; Bailey v. State, 99 Ala-143; Jones v. State, 136 Ala. 118; Guarreno v. State, 148 Ala. 637; Coleman v. State, 150 Ala. 64.

Heard before Hon. S. L. Weaver. William Lewis and others were convicted of maintaining a criminal boycott, and they appeal.

Heard before Hon. C P. Almon. Isaac Pugh was convicted of knowingly permitting stock to run at large upon lands of another without such other’s consent, and he appeals.

Heard before Hon. Thomas W. Wert. Ellis Wright was convicted of violating the prohibition law, and he appeals.

Heard before Hon. W. W. Haralson. Ben Stearne.was convicted of violating the prohibition law, and he appeals. No brief reached the Reporter. The defendant was properly convicted under the evidence on the indictment. — Winter v. The State, 132 Ala. 32; Bond v. The State, 130 Ala. 117; Darrington v. The State, 162 Ala. 60; Rayfield v. The State, 167 Ala. 94; Section 33, Acts 1909, p. 94.

Heard before Hon. Thomas W. Coleman, Jr. Jack Garner was convicted of violating tbe prohibition law, and he appeals. The court erred in sustaining the state’s objection to the question propounded to the witness as to where he went after purchasing the liquor from the defendant.— Phoenix I. Co. v. Copeland•, 86 Ala. 557; L. & N. v. Hill, 115 Ala. 334; Snell v. Roach, 150 Ala. 469.

Heard before Hou. Bernard Harwood. Proceedings by the State of Alabama against L. D. Jones for search and seizure of prohibited liquors. Judgment for the state, and defendant appeals.

Heard before Hon. A. L. Rankin. J. H. Rose was convicted of violating the prohibition law, and he appeals. The court erred in admitting the letter from the United States revenue collector. — Sections 3983, 7361, and 7383, Code 1907; Black’s Law Dictionary, 1891, p. 871. Counsel discuss other assignments, hut without further citation of authority. The judgment is not sufficient to support an appeal. — Ayers v. The State, 71 Ala. 11.

Heard before Hon. Thomas W. Coleman, Jr. J. W. Loudermilk was convicted of violating the prohibition laws, and he appeals.

Heard before Hon. Armstead Brown. John Gratton was convicted of a violation of tbe local option law, and be appeals. Tbe indictment charges that tbe defendant sold spirituous, vinous, or malt liquors without a license, and contrary to law. Tbe oral charge excepted to was as follows : “If you find tbe defendant guilty under this indictment, it is for you to fix tbe punishment; that tbe court cannot add to it.

Heard before Hon. Mike Sollie. Grady Faulk was convicted of violating the prohibition laAvs, and he appeals.

Heard before Hon. B. M. Miller. Allen Watson was convicted of violating the prohibition law, and he appeals. The question presented is whether the prohibition law of 1909, was superseded by the act known as the Smith Bill, Acts 1911, so far as this case is concerned. Under the former act, the court had authority to sentence for hard labor, under the latter act, no such authority was given for the first offense.

Heard before Hon. S. L. Brewer. F. M. Graham was convicted of violating the prohibition law, and he appeals. No brief reached the Reporter.

Heard before Hon. M. Sollie. Ed Redmond ivas convicted of violating tbe prohibition law, and be appeals.

<p>Intoxicating Liquors; Indictment; Sufficiency. — An indictment for selling liquor without license need not name the party to whom the liquor was alleged to have been sold.</p>

Heard before Hon. M. Sollie. Harry Brannon ivas convicted of violating the prohibition law, and he appeals. The indictment charges that the defendant sold spirituous, vinous, or malt liquors without license and contrary to law. The demurrers were that the indictment charges no offense, and ivas predicated upon a statute ivhich did not exist at the time the indictment Avas returned or at the time when the alleged offense was committed.

Heard before Hon. M. Sollie. Sam Edmondson was convicted of violating the prohibition law, and be appeals. The indictment charges the defendant with selling spirituous, vinous, or malt liquors without license, and contrary to law. The facts in reference to the indictment appear in the opinion of the court.

Heard before Hon. M. Sollie. John A. Jackson was convicted of violating the prohibition law, and he appeals. The evidence showed that Armstrong bought a pint of whiskey from the defendant at his commissary, and paid the defendant 75 cents for it, and that only he and the defendant were present.

Heard before Hon T. L. Borum. J. Scurry Clark ivas convicted of violating the revenue laws of the State. Subdivision 58 of Section 2361, is violative of the Constitution in that it does not conform to the requirement of equality and uniformity.- — 80 Alya. 375.

<p>Appeal from Coffee Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Howard Tbornton was convicted of rape, and lie appeals.</p> <p>The motion to quash preceded the plea, and was, therefore, timely. — 135 Ala. 15. The court erred in sustaining demurrers to defendant’s plea-in abatement. — Spivey v. The State 56 So. 233; Section 35, Acts 1909, p. 316. The caption of the indictment was not sufficient to sustain the same. — Carmichael v. Matthews, 134 Ala. 210.</p> <p>The motion to quash was properly overruled and demurrer sustained to the plea of abatement. — Section 23, Acts 1909, 315. The indictment was sufficient. — Section 7131, Code 1907.</p>

Heard from Hon. Ltjm Duke. From an order discharging Eddie Rowell from a prosecution for bastardy the State appeals. The demurrer came too late. —Wallcer v. The State, 108 Ala. 56; Laney n. The State, 109 Ala. 34. Demurrer was not the proper remedy, as the affidavit was in no sense pleading. — Smith v. The State, 73. Ala. 11. No brief reached the Reporter.

. Heard before Hon. A. H. Alston. Elisha,Smith brought habeas corpus to obtain his discharge. From an order dismissing the petition and remanding petitioner to the custody of the sheriff to he forthwith delivered to the proper authorities of the convict department, he appeals.

. Heard before Hon. C. W. Ferguson. William Hines brings habeas corpus to procure his discharge from detention under requisition proceedings. . From an order remanding petitioner he appeals. No brief came to the Reporter. A p>rima facie case was made out by tbe sheriff’s return and no testimony in rebuttal ivas shown. — Barriere v. The State, 142 Ala. 78; Eco parte State v. Mohr, 73 Ala. 503; Law v. The State, 56 South. 79.

• Appeal from Montgomery City Court. Heard before Hon. Armstead Brown. J. H. Shreve brings habeas corpus for discharge from detention under requisition proceedings. From an order denying the petition, and remanding petitioner, he appeals.

Appeal, from Pike Probate Court. Heard before Hon. Alex C. Edmundson. Petition by Ben Flowers, on habeas corpus to be discharged from custody. From an order denying the writ, petitioner appeals. The- rule is that where the evidence discloses a felony has been committed, the justice or recorder trying the case should commit the defendant to answer to the next term of the circuit or city court, and hence, the judgment here rendered ivas void. — Acts 1907, p. 825; 2 Ala.

Heard before Hon. J. J. Ray. Action by C. W. Phillips and others against Adeline Burton for penalty for failure to enter partial payment upon a mortgage. Judgment for plantiffs, and defendant appeals.

Heard before Hon. Sappord Bernby. Action by tbe Dixie Lumber Company against Genevieve Copeland and Karl Graf, to enforce a mechanics’ and material-man’s lien. From a judgment for paintiff, the defendant-owner Copeland appeals. The plantiff was not entitled to a personal judgment against the owner, as it was shown that no contract was made with her.

Heard before Hon. John C. Pugh. Certiorari by George Tribble to review a. judgment rendered by a justice of the peace in favor of Ellen Hines against him. From a judgment quashing the justice’s judgment, the defendant in the writ appeals. The judgment of the inferior court was defective merely, and not void, and hence, the petitioner was not entitled to a common law writ. — Clemm v. Wise, 133 Ala. 408; Rose v. Pearson, 41 Ala. 692; Jones v. Pullen, 66 Ala. 310.

Original petition in the Court of Appeals. Petition by M. W. Graham and others, for mandamus to the judge of the Circuit Court of Coffee County, to require him to strike a cause from the docket of his court brought there by appeal from a justice court.

Heard before Hon. H. B. Foster. Habeas corpus by Basil K. Montgomery for the possession of his child against M. B. Hughes and others. From a judgment for defendants, plaintiff appeals. Reversed and rendered on original hearing in the Supreme Court. On application for rehearing, the case was transferred to the Court of Appeals under the statute, where the application was denied. A parent cannot dispose of a child as chattel.- — Morris v. Lowe, 4 Stew. 123.

Heard before Hon. W. W. Pearson. Action by Joseph Thompson against Leo Klein for damages for disturbing his possession as tenant. Judgment for defendant and plaintiff appeals. The plaintiff became the tenant of the defendant until the happening of a future contingent event, and that event had not occurred when the defendant evicted and damaged the plaintiff, and hence the plaintiff was entitled to recover. — Eubanks v. May & Thomas Hcko. Go., 105 Ala. 629; 122 Ind. 3; 21 Mo.

Heard before Hon. G. J. Sorrell. Petition for habeas corpus by Whit Rowe. • From an order denying tbe petition, petitioner appeals.

Heard before Hon. B. M. Miller. Charley Clark was convicted of violating an ordinance of tbe town of Uniontown, and appeals. Tbe ordinance was invalid because not recorded and certified to by tbe clerk and because tbe mayor was present and did not vote. — Section 1252, Code 1907; 4 Cyc. 1075; Section 1258, Code 1907. Tbe court should have quashed tbe affidavit. — Sections 1222 and 1228, Code 1907; 17 A. & E. Enc. of Law, 248.

Heard before Hon. Armstead Brown. Julius Dreyfus was convicted of violating an ordinance of the city of Montgomery, and he appeals. The ordinance is void because unfair and discriminatory, unreasonable, partial and prejudiced. — Town of Greensboro v. Ehrenreioh, 80 Ala. 579; Cuba v. Mississippi Oil Co., 150 Ala. 359; City of Montgomery v. West, 149 Ala. 313.

Heard before Hob. H. A. Pearce. G. W. Bouyer was convicted of violating a municipal ordinance, and he appeals.

Heard before Hon. E. J. Gilder. The city of Demopolis prosecuted Charles A. Atkeison for a violation of its ordinance, and from an adverse judgment the city appeals. Couhsed discuss the errors assigned, together with citation of authority to sustain their contention, but in view of the opinion it is not deemed necessary to here set them out, as they do not brief the point decided.

Heard before Hon. E. C. Crowe. Gr. S. Baranco was convicted in tbe Recorder’s court for a violation of a prohibition ordinance enacted in conformity to the prohibition law of 1909. On appeal to the circuit court, the prosecution was dismissed and the proceedings quashed, because of certain ordinances passed, since the commission of the offense, repealing the ordinance under which prosecution was begun, and from this judgment, the city appeals.

Heard before Hon. James A. Bilbro. W. B. Little was convicted of violating an ordinance of tbe city of Attalla, probibiting gaming, and be appeals. The ordinance was invalid as being beyond the power of the municipality. —Mayer v. Stonewall I. Co., 53 Ala. 570; Mayor v. Wetu/mpka Wharf Co., 63 Ala. 611; Dunn v. Wileov County, 85 Ala. 144; Section 89, Constitution 1901; Black on Interpretation of Laws, 313; 108 U. S. 110.

Heard before Hon. H. A. Pearce. George Bouyer urns convicted of violating a prohibition ordinance of the city of Enterprise, and he appeals. No brief reached the Reporter.

Heard before Hon. H. A. Pearce. Charley Buckhalt was convicted of violating an ordinance of the city of Enterprise, prohibiting the business of retail liquor dealing, and lie appeals.

Heard before Hon. A. E. Gamble. Action by tbe Haigler Mercantile Company against R. S. McWhorter and another. Judgment for plaintiff, and from an order overruling motion for a new trial, defendants appeal. There ivas a variance between the complaint and the proof, and it was not upon the defendant to raise this in the lower court. —Jones v. Egelhart, 78 Ala. 505; Lee v. Wimberly, 102 Ala. 539; Gobbs v. Keith, 110 Ala. 614; Redmond v. L. cG N., 154 Ala. 311.

Heard before Hon. Bernard Harwood. Detinue by S. and J. T. Clark, against Peter Weir, and others. Judgment for plaintiffs and defendants appeal. The court erred in rendering judgment for the plaintiffs without a trial on the merits, and in refusing to permit the introduction of evidence that the claimant was the owner of the property. — 36 Ore. 307; 121 N. C. 12; Montgomery & Wetumplca P. II. Go. v. Persee, et al., 25 Ala. 536.

Heard before Hon. John W. Inzer. Detinue by Mrs. C. W. Morrow against Frank Gossett and others. Judgment for. plaintiff, and defendants appeal.

Heard before Hon. H. A. Pearce. Contest of creation of private road across lands of B. R. Ballard. From judgment awarding damages, Commissioners’ Court of Coffee County appeals. Appeal dismissed.

Heard before Hon. W. W. Haralson. Action by Ernest Howie against the Butler-Kyser Oil & Fertilizer Company and others, in case, for destruction of lien. Judgment for plaintiff, and defendant named appeals. The following charges were refused to the defendant : (1) “The court charges the jury that the plaintiff has no landlord’s lien on the mule sued for.” (2) Affirmative charge to find for the defendant.

Heard before Hon. Gaston Gunter. Action by B. F. Bowdoin, by next friend, against the Montgomery Cotton Mills for personal injuries. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. 0. Lane. Action by J. C. Triplett against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. For answer of Supreme Court to certified question, see 176 Ala., 58 South. 108.

Heard before Hon. A. H. Alston. Action by Barney Brown against the Republic Iron & Steel Company. From a judgment for plaintiff, defendant appeals. The amended count 2 is as follows: “Plaintiff claims of defendant $5,000 as damages, for this: That heretofore, to wit, on the 27th day of October, 1908, the defendant was engaged in and about the following business in Jefferson county, Alabama, to wit: The operation of a furnace.

Heard before Hon. William Jackson. Action by Robert Kilgore against the New Connellsville Coal & Coke Company, for personal injuries. Judgment for plaintiff, and defendant appeals. By reference tp a former report of this case, in 162 Ala. 612, 50 South. 205, counts 3, 1, 5, and 6 will be found substantially stated.

Heard before Hon. E. C. Crow. Action by B-. C. Barrett against the Birmingham Bailway Light & Power Company, for damages for loss of services of his wife by reason of injuries inflicted upon her by the defendant carrier while she was a passenger on one of its cars. Judgment for plaintiff and defendant appeals.

Heard before Hon. William Jackson. Action by Thomas Mason against the Louisville & Nashville Railroad Company, - for damages for being ejected from one of its passenger trains.- Judgment for plaintiff and defendant appeals. The court erred in overruling demurrers to the 1st count. — McGhee ■& Fmfo v. Reynolds, 117 Ala. 419; L. & N. v. Beale, 160 Ala. 588; Sí. S. & B. R. R. Oo. v. Campbell, 158 Ala. 438; St. L. & S. F. R. R. Oo. v. Pearce, 159 Ala. 144.

Clair Circuit Court. Heard before Hon. John W. Inzer. Action by'Malissa F. Norris against the Birmingham & Atlantic Railroad Company. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear from the opinion. The following charges were refused the defendant: Affirmative charge as to the first count.

. Eleard before Hon. E. F. Ellsberry. Action by the Strickland-Metcalf Grocery Company against the Central of Georgia Railroad Company, for damages for delay in delivery of freight. Judgment for plaintiff and defendant appeals. Counsel insists tliat the action of the court urns erroneous in not permitting plaintiff to file its plea. — Jones v. Ritter, 56 Ala. 270; Woolsey v. R. R. Go., 28 Ala. 356.

Heard before Hon. Mike Sollie. Action by J. A. Ward against the Atlantic Coast Line Railroad Company for damages for failure to deliver goods. Judgment for plaintiff and defendant appeals. The grounds of demurrer were not sufficient to invoke the provision of the Act of Congress held valid in the case of A. C. L. R. R. Go. v. Riverside Mills, 219 U. S. 186, and hence, the court erred in sustaining them.

Appeal, from Birmingham City Court. Heard before Hon. C. W. Ferguson. Action by the Greek-American Produce Company against the Illinois Central Railroad Company, for damages for delay in delivering goods. Judgment for defendant and plaintiff appeals.

Heard before Hon. C. P. Almon. Action by W. T. Burleson against the Illinois Central Railroad Company for damages for failure to deliver freight. Judgment for plaintiff and defendant appeals.

Arrear from Birmingham City Court. Heard before Hon. Charles W. Ferguson. Action by C. A. Robertson against the Southern Railway Company for damages for failure to deliver certain household goods. Judgment for defendant and plaintiff appeals. Counsel discuss the errors assigned, but without' citation of' authority. The goods Avere shoAvn to have been returned by Avay of the Seaboard Air Lino, and there Avas a variance betwen the allegation and the proof. — 8. & N. A. Ry.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Action by William T. Jones against John A. Duncan, for damages to crops caused by tbe defendant permitting bis ducks and turkeys to run at large. Judgment for defendant and plaintaiff appeals. The court erred in sustaining demurrers to tbe complaint. — 143 Ala. 222; Sec. 5889, Code 1907. Domestic fowls are animals. — 1 Addison on Torts, 398 and 938; 66 N. C. 618.

Heard before Hon. H. B. Foster. Action by F. M. Norwood against the Yolande Coal • & Coke Company, for injury to person and property. Judgment for plaintiff and defendant appeals. The court erred in overruling demurrer to count M. — City D. C’o. v. Henry, 139 Ala. 161; Mayer Go. v. Thompson, 104 Ala. 611. The count should have been stricken. — Ala-. G. G. & I. Go. v. Heald, 45 South. 691.

Heard before Hon. John T. Lackland. Action by John S. Graham against the Southern Railway for injury to stock. From a judgment quashing the writ of certiorari to bring up tbe case from the justice to the Circuit Court, the defendant appeals. The court erred in quashing the writ. — Hines v. Tribble, 57 South. 265; Gray v. Dean, 3 Ala. 716; Boyd v. Woodfin, 3 Stew. 357; Section 3259, Code 1907.

Heard before Hon. C. W. Ferguson. • Action by H. F. Ozburn against the Birmingham Railway, Light & Power Company for damages to an automobile caused by a collision with one of its electric cars at a public crossing. Judgment for plaintiff and defendant appeals. The provisions of section 5473, Code 1907, have no application to interurban railroads operated by electricity. — Jacobs v. Birin. Min., 92 Ala. 187.

Heard before Hon. W. W. Pearson. Action by S. J. Rutland against the Central of Ga. Railway Company for damages for failure to deliver a bale of cotton claimed to have been shipped over its line. Judgment for plaintiff and defendant appeals. The court erred in permitting the witness to he examined concerning declarations and statements made some four or six months subsequent to the alleged loss of the cotton. — Western N. Ü. v. Judson, 1 Ala. App. 615; Moore v. Ry.

Heard before Hou. B. M. Miller. Action by Mack Hobson against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. C. W. Ferguson. Action by George Green against the Birmingham E. L. & P. Company, for damages to a horse and vehicle in a collision a.t a road crossing with an interurban electric car operated by the defendant. Judgment for plaintiff and defendant appeals. The provisions of section 5473, Code 1907, have no application to cars propelled by electricity, and the court erred in its charge to the jury. — -BirmingJimv B. L. '& P. Go. v. Ozburn, in MSS.

Heard before Hon. W. W. Haralson. Action by W. N. Bain and another against Mont. G-. Hodges, for damages for the destruction of cotton seed by setting out fire. Judgment for defendant and plaintiffs appeals. A witness cannot be impeached by showing specific habits singled- out for. that purpose. — Bweatt v. The State, 156 Ala. 85; 5.A-. & E. Enc. of Law, 85.

Heard before Hon. Mike Sollie. ■ Action by J. W. Pippin against the Farmers’ Warehouse and E. R. Phillips for the conversion of a bale of cotton. Judgment for plaintiff and defendant appeals. Counsel insist that because the mortgage was recorded in the deed record instead of the mortgage record, that it was not notice to the defendant of its existence.

Heard before Hon. Gaston Gunter. Action by Winter-Loeb Grocery Company against the Mutual Warehouse Company, in trover and conversion. Judgment for defendant and plaintiff appeals. A prima facie case was made out by appellant. — Bolling v. Kirby, 90 Ala. 215; Henderson v. Foy, 96 Ala. 205. The question presented was whether or not, an estoppel was raised by the testimony of Mr. McNeel, as to a conversation had with him by Winter.

Heard before Hon. M. R. Sowell, Special Judge. Action by the Farmer’s Union Warehouse Company against Thomas J. Murphy. From a judgment for plaintiff, defendant appeals. The plaintiff claimed under a mortgage executed by J. B. Morris to it, conveying all his crops grown on the Carter old place during that year, together with other personal property.

Heard before Hon. H. A. Pierce. Action by A. J. Smith against G. W. Pilcher and others for the conversion of a horse. Judgment for plaintiff and defendants appeal. No brief reached the Reporter. No brief reached the Reporter.

Heard before Hon. J. T. Stoklby, Special Judge. Action by Janies Sayre against C. C. Sulser. From a judgment for plaintiff, defendant appeals. Counts 1 and 2 were in the statutory form for deceit in the sale of a mule. Count 3 was in breach of warranty of contract for sale of a mule.

Clair Circuit Court. Heard before Hon. J. E. Blackwo'od. Action by J. L. Newton against J. L. Maddox and others for libel and slander. Judgment for plaintiff and defendant Maddox appeals. If it can be said that the handing out of the papers by Maddox was a techincal publication, it ivas a separate and distinct publication from the publication of the paper, and Avould constitute a separate and distinct offense. — Underwood v. Smith, 42 Am. Rep. 946; 0: of Ga. By.

Heard before Hon. J. T. Stoiceley. Action by Dave Clayton against Ed Hall, for damages for assault and battery. Judgment for plaintiff and defendant appeals. A careful review of the record will disclose that the preponderance of the evidence against the verdict is so decided as to authorize this court to reverse the action of the trial court in refusing a motion for new trial for that reason. — Shepherd v. Dowling, 103 Ala. 563; Birmingham Wat.

Appear from Etowah Circuit- Court. Heard before Hou. John W. Inzer. Action by James J. Sampley against, the Alabama City, Gadsden & Attalla Railway Company for assault and battery. Judgment for plaintiff, and defendant appeals. The assault alleged was committed by the conductor in charge of the car on which plaintiff had taken passage, and the disputed facts were whether the assault took place while plaintiff was on the car, or after he had left and gone some distance away.

Heard before Hon. Saff'old Berney. Action by Jane Hughes against the City of Mobile, revived in the name of Fannie Webster as administratrix, for damages for injury caused by defective sidewalks. Judgment for plaintiff and defendant appeals. The evidence ivas not sufficient to support the allegations of the complaint so as to render the defendant liable under section 1273, Code 1907. — .Parrish v. P. & A. It.

Heai'd before Hon. J. J. Curtis. Action by Annie McCrary against L. C. Spearman, for damages caused by the negligent operation of an automobile. Judgment for plaintiff and defendant appeals. The court erred in overruling the demurrers to the complaint. — Bloimt v. W. U. T. Co., 126 Ala. 105. The court erred in permitting it to be shown that the plaintiff fainted’or became sick after the alleged accident, as this was not an element of damage. —13 Cvc. 42.

Heard before Hon. J. C. B. Gwin. Action by W. R. Russell against tbe Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Samuel B. Beownb. Action by William H. Louisell against the Western Union Telegraph Company, for damages for failure to properly transmit a telegram. Judgment for defendant and on motion the judgment was set aside and a new trial ordered. From this judgment defendant appeals. The verdict was plainly and palpably supported by the evidence. — W. U. T. Co. v. Louisell, 161 Ala. 237.

Heard before Hon. William H. Thomas. Action by the Hubbell Publishing Company against Gustave F. Mertins for breach of contract and for an account. Judgment for plaintiff, and defendant appeals. The defendant filed several pleas setting up that plaintiff was a foreign corporation doing business in the State of Alabama without having filed with the Secretary of State the necessary papers required in order for it to do business within the State.

Heard before Hon. Safford Berney. Action by Albert S. Towle against tbe City of Mobile to recover money paid out for a rodman for 34% months, at the rate of $25 per month, during the second term of plaintiff as City Engineer of the City of Mobile. Judgment for defendant, and plaintiff appeals.

<p>Appeal from Greene Gircnit Court.</p> <p>Heard before Hon. Bernard Harwood.</p> <p>Assumpsit by James O. Banks against B. E. Mobley, clerk of the circuit court, accompanied by petition for mandamus to compel the clerk to certify to certain claims as a charge against the county fine and forfeiture fund. Judgment dismissing the petition and plaintiff appeals.</p> <p>Mandamus is the proper remedy in this case. The duty of certifying the facts in question is by statute placed upon the Clerk. The duty being purely ministerial he may be required by mandamus to perforin that duty.— Code, Sects. 6663, 6666; Grider v. Talley, 77 Ala. 426; Jachson v. Mobley, 157 Ala. 411. The statute of limitations is a defense personal to the debtor. The clerk is in no sense the debtor so far as these witness claims are concerned, and he can not plead the statute. Neither can he plead the statute as against the'petition for mandamus. — Stouts v. Huger, 107 Ala. .248; Code, Sect. 4832; Duhe v. Turner, 204 U. S. 623; 51 Law Ed. 652; Chinn v. Trustees, 32 Ohio St. 236. Neither of the pleas present a good defense to the proceeding, and the lower court erred in overruling the demurrer to each. — Basco v. Jefferson, 38 South. Bep. 247; N. C. & St. L. By. v. Hill, 146 Ala. 240; Briggs v. Coleman, 51 Ala.; Carville v. Reynolds, 9 Ala. 969; Brown & Street v. Parris, 93 Ala. 312; Jackson County v. Derrick, 117 Ala. 348; Palmer v. Fitts, 51 Ala. 489; Board of Revenue v. State, 54 So. Rep. 995; Scruggs v. Underwood, 54 Ala. 186; Sanders v. Elmore County, 117 Ala. 543; Ridgeivay v. Me Alpine, 31 Ala. 458; Bailey v. Butler, 138 Ala. 153.</p> <p>The proceeding was by an individual, and the court was justified in its action on that ground alone. — High’s Extraordinary Legal Rem. 320. Their right was lost by laches if it ever existed. Same Authority, Sec. B and 355; Barnes v. Turner, 10 L. R. A. (N. S,) 478; 26 Cyc. 392; State ex rel. Phillips, v, Benners, 55 South. 298; Montgomery L. & P. Co. v. Lahey, 121 Ala. 136.</p>

H. A. Pearce. Action by W. L. Casey & Co. against J. T. Ellis for breach of contract of sale of a stipulated number of bales cotton. Judgment for plaintiff and defendant appeals. Tbe court erred in permitting it to be shown that the contract was made with reference to the custom and usage fixing the weight of a bale of cotton at 500 pounds. — 150 Ala. 126; 54 South. 204. The witness ivas not competent to testify as to the market price of cotton. — 169 Ala, 229.

Heard before Hon. William H. Thomas. Assumpsit by Mrs. A. N. Gissendaner against the Southern Loan & Trust Company, for a sum of money paid on a contract alleged to have been obtained by misrepresentations or fraud. Judgment for plaintiff and defendant appeals.

Heard before Hon. D. W. Speake. Action by W. B. Fuller for the use, etc., against Wheeler and others, upon an appeal bond for the damages sustained by taking an appeal. Judgment for plaintiff and defendant appeals. The demurrers to the complaint should have been sustained, and the court erred in not ruling upon the evidence and in giving the charge for the plaintiff. — Montgomery L. Go. v. Merrick, 61 Ala. 534; Ex parte Sibert, 67 Ala. 349.

Heard before Hoc. J. C. B. Gwin. Action by A. J. Letson against J. W. Hall, as surviving partner. From a judgment for defendant, plaintiff appeals. The action was upon eight notes executed by Sanders & Hall to the plaintiff, and the other facts will be found reported in Letson v. Hall, 1 Ala. App. 619, 55 South. 944.

Heard before Hon. W. W. Pears'on. Action by tbe Bank of Cartersville against W. A. Gunter. From a judgment for defendant, plaintiff appeals. Tbe action was on a promissory note alleged to have been executed by Gunter to one J. T. Norris, receiver, etc., which note before maturity was indorsed to plaintiff.

Heard before Hon. A. O. Lane. Action by Mrs. S. P. Beecber against Arlington L. Henderson and others, obligors on a constable’s bond. From a judgment ordering a discontinuance, plaintiff appeals. The court erred in holding that the action taken amounted to a filing of the amendment and its allowance.—Phillips v. Dean, 38 Ala. 248; 3 Words & Phrases.

ttiíiaru before Hon. Samuel B. Browne. Action by.R. C. Avent against James J. Feore for. breach of contract to purchase stock.. Judgment for plaintiff and defendant appeals. Neversed and remanded.

Heard before Hon. Saefold Berney. Action by Cunningham Hardware Company against the Gama Transportation Company and another. From a judgment upon a nonsuit after the sustaining of demurrers to the complaint, plaintiff appeals.

Heard before Hon.' S. L. Brewer. Assumpsit and trover by W. A. Varner against W. P. McEwen. Judgment for plaintiff and defendant appeals. Charge 2 ought to have been given, as no estoppel was established, and defendant’s lien was paramount to plaintiff’s mortgage. —Weaver v. Bell, 87 Ala. 385; Clanton v. Scruggs, 95 Ala. 279; Hicks Bros. v. Swift Creek Milling Co., 133 Ala. 411; Crawford v. Engram, 159 Ala. 315.

Court. Heard before Hon. Charles A. Senn. Action by C. L. Browning against Jacob Fies and another for damages for breach of contract. From a judgment granting insufficient relief, plaintiff appeals.

Heard before Hon. H. A. Sharpe. Action by the Scientific American Compiling Department against T. O. Gillespie ior breach of contract. Judg-ment for plaintiff which was set aside on motion for new trial, from which order plaintiff appeals.

Heard before Hon. W. W. Haralson. Action by J. L. Vaught against W. A. Buckner and others, sureties on an injunction bond. Judgment for plaintiff and defendant appeals. Motion to strike from the complaint and request for written instructions to the jury not to find for illegal damages is proper. — r92 Ala. 399. Counsel’s fees were not allowed. — 124 Ala. 614; 109 Ala. 377; 100 Ala. 286; 65 Ala. 417.

Charles A. Senn.- Action by Frank E. Brammer against the individuals composing the partnership of J. B. Anderson & Co., on the common counts and a special contract. Judgment for plaintiff, and defendants appeal.

Heard before Hon. W. W. Haralson. Action by W. P. Hall, against Reuben Young, revived on bis death in the name of the administrator, for money bad and received, and for the destruction of a mortgage lien. Judgment for plaintiff and defendant appeals.

Heard before Hon. J. H. Ballentine. Action by Ed. Hartsell against H. C. Turner to recover for work done in digging a well. Judgment for plaintiff and defendant appeals. No brief reached the Reporter. No brief reached the Reporter.

Heard before Hon. Th'omas W. Wert. Action by the Schwartzchild & Sulzsberger Company of America against W. H. Aycock, doing business, etc., on an itemized and verified account. Judgment for plaintiff, and defendant appeals.

Heard before Hou. M. Sollib. Assumpsit by W. B. Burton against D. C. Turnipseed. Judgment for plaintiff and defendant appeals. The second count does not state a cause of action, and will not support a judgment even though there was no demurrer to the count, and hence, the court erred in giving the affirmative charge as to the count. — St. Clair County v. Smith, 112.

Heard before Hon. James J. Bay. Assumpsit by J. K. Henson against the Thomas Frazer Lumber Company and others.

Heard before Hou. C. P. Almon. Action by J. A. Pate against A. M. Lamb. From a judgment for plaintiff, defendant appeals.

Heard before Hon. H. A. Pearce. Action by the Burroughs & Taylor Company against J. T. Beasley and W. H. Holloway on a bond. Judgment for plaintiff, and defendants appeal. The facts sufficiently appear from the opinion.

Heard before Hon. D. W. Speaice. Action by E. O. Williamson against M. J. Greene. Judgment for defendant and plaintiff appeals. As developed by the evidence, the statute of frauds had nothing to do with the case, and the court erred in refusing to withdraw that issue from the consideration of the jury. Counsel discusses other assignments of error, but in view of the opinion it is not deemed necessary to here set them out. This appeal is from a motion denying a new trial.

Heard before Hou. John T. Lackland. Action by the Choctaw Bank against J. A. Scott upon a promissory note. Judgment for plaintiff and defend- and appeals. Misrepresentaion of a material fact is fraud. — 16 Ala. 785; 22 Ala. 501. The charge requested should have been given, as notice will be imputed to the bank officer. — 29 L. R. A. (N. S-.) ’558 and note; Morris v. 1st Nat. Bank, 50 South. 136. The facts presented a question for the jury. — 8 Cyc. 287.

Circuit Court. Heard before Hon. A. E. Gamble. Action by Elmore, Quillan & Co., against William Cunningham for breach of contract. Judgment for defendant, and plaintiff appeals.

Heard before Hon. Saffold Berney. Action by tbe Mobile & Ohio Railroad Company against the.Bailey Iron Works Company. From a judgment for plaintiff, defendant' appeals. - The paper on which the suit is brought is as follows: “Mobile, Ala., March 81, 1909.

Heard before Hou. M. Sollie. Action by L. Lasseter, doing business as tbe L. Lasseter & Co., against W. B. Stewart, administrator of Mary Streeter, deceased. From a judgment for plaintiff, defendant appeals. Tbe defendant pleaded in short, by consent, the general issue, the statute of limitation for three years, statute of limitations for six years, and the statute of nonclaim and also filed an affidavit, denying the correctness of the verified account.

Circuit Court. Heard before Hon. H. A. Pearce. Action by Bessie B. Jones against the Woodmen of the World on a beneficial life insurance policy, issued to plaintiff’s husband. Judgment for plaintiff and defendant appeals. Under the rules of the order Jones could not be reinstated while in ill health, and under the facts in this case, no action of Mr. Yates after Jones died would have been binding on the defendant. — Drum v. Benton, 13 B. C. Apellant cases, 245.

<p>Appeal from Russell Circuit Court.</p> <p>Heard before Hon. Mike Sollie.</p>