Volume 5 — Alabama Appellate Reports

Heard before Hon. D. W. Speake. Will Hosey was convicted of murder in the second degree, and he appeals. William Black, a witness for the state, while being cross-examined was asked by the defendant, “Did you hear the doctor say where he ivas hit?” Objection ivas sustained to the question, and defendant excepted.

Heard before Hon. S. L. Brewer. James Cook, alias, etc., was convicted of manslaughter, and appeals. The facts sufficiently appear in the opinion of the court.

Geneva Circuit Court. Heard before Hon. H. A. Pearce. From a conviction of manslaughter Bascom Parker and another appeal. In legal contemplation the finding of a jury in felony cases is never a verdict until it is received in open court in the presence of the accused and the judge presiding. — Hayes v. The State, 107 Ala. 1; Wells v. The State, 147 Ala. 140.

Heard before Hon. James A. Bilbro. Bob Styles was convicted of homicide and he appeals. The court erred in permitting it to he shown that deceased ivas a deputy sheriff. — Abernathy v. The State, 129 Ala. 88; Maxwell v. The State, 89 Ala. 150. The court erred in permitting the general character of deceased to he shown.— Sanford v. The State, 2 Ala. App. 88; Montgomery v. The State, 2 Ala. App. 25; DeArman v. The State, 7.1 Ala. 352; Rhea v. The State, 100 Ala. 199.

Heard before Hon. James H. Ballentine. Richard Johnson was convicted of homicide and he appeals. The order appears sufficient as it in effect fixed the number of jurors at sixty-two, although not 'fixing it in so many words. — Gresham v. The State, 1 Ala. App. 220; Costello v. The State, 58 South. 202.

Heard before Hon. C. P. Almon. Bart Robinson was convicted of murder in, the second degree and be appeals. Tbe court erred in re-examining tbe juror after be bad been empanelled. Counsel discuss and insist on tbe insertion as they allege of improper matter in tbe bill of exceptions. They also discuss tbe evidence, but without citation of authority.

Heard before Hon. H. A. Pearce. Burrell Grubbs was convicted of murder in the second degree, and he appeals. Tbe facts sufficiently appear in tbe opinion. Tbe bill of exception shows that tbe defendant was arraigned on Saturday, and bis trial set for Friday of tbe following week; that on Sunday following tbe arraignment tbe sheriff served tbe defendant with a copy of tbe indictment and venire; and that no other service was made.

Heard before Hon. Mike Sollie. Will Haisten was convicted of murder and he appeals. The court erred in not quashing the'venire becanse of the names of certain jurors therein contained, and because it was not filed or served upon the defendant until the morning of his trial, although drawn and ordered to he served forthwith two days before the trial. — Allen v. The State, 146 Ala. 61; Acts 1909, p. 305.

Heard before Hon. D. W. Speake. Luther Parker was convicted of murder, and he appeals.

Heard before Hon. S. L. Brewer. Joe Pearson urns convicted of manslaughter, and he appeals. The record sIioays a motion to discharge the defendant, because after the jury was selected and a considerable portion of the evidence had been introduced the jury Avere permitted to separate and go to their various boarding places, and mingle with and converse Avith other people in the tOAvn.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Will W. Powell was convicted of manslaughter, and appeals.

Heard before Hon. D. W. Speake. George Black was indicted for murder in the first degree and convicted of manslaughter, and he appeals.. The facts sufficiently appear from the opinion.

Heard before Hon. D. W. Speake. Thomas McCutcheon was tried for murder, convicted of manslaughter, and he appeals.

Heard before Hon. R. I. Burke. Ernest Malchow was convicted of assault and battery, and appeals.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Charles W. Beason was convicted of assault and battery, and he appeals.

Heard before Hon. E. J. Garrison. Will Davidson was convicted of an assault and he appeals. No venue was proven in this case. — Section 7140, Code 1907. The state should have been compelled to elect upon Avhich count it Avould proceed. — McPherson v. The State, 54 Ala. 221; Bass v. The State, 63 Ala. 108; Orr’s case, 108 Ala. 571.

Heard before Hon. James H. Ballentine. Joe Sldllington was convicted of assault and battery, and he appeals. The witness Trotman showed himself incompetent to testify as a character witness. — 16 Cyc. 1277; 8 Enc. of Evid. 29; Dave v. The State, 22 Ala. 86; Mose v. The State, 86 Ala. 230; Jackson v. The State, 106 Ala. 17. The court also erred in permitting defendant’s general character to he shown, and therefore, erred in its refusal to grant motion for a new trial.

Heard before Hon. Mike Sollie. Alex Williams was convicted of larceny, and he appeals. The motion tó dismiss the appeal should be overruled, as it came too late.— Rule 41, Sup. Ct. Pr; Peters v. Nolan, 57 South. 398; Street v. Street, 113 Ala. 333. Counsel discuss the errors assigned, but without citation of authority. The appeal should be dismissed because not filed at the term to which it was made returnable. — Rule 41, Sup. Ct. Pr.

Heard before Hon. M. Sollie. A. M. Sansberry was convicted of embezzlement, and he appeals. The indictment contained six. counts, the first three charging the embezzlement of money belonging to the corporation named. The last three charged the embezzlement of 12,000 pounds of lint cotton of the value of $1,400, the personal property of the said company, which came into his possession by virtue of his employment as agent of such corporation.

Heard before Hon. John T. Lackland. Ed Hope was convicted of false pretenses, and he appeals. The indictment charges that Ed Hope did falsely pretend to Alex Gunn, with the intent to injure or defraud, that he owned one sorrel horse, named Joe, and 'bv means' of such false pretense obtained from said Alex Gunn $100.

Heard before Hon. W. W. Pearson. Arthur Kirby was convicted of crime, and he appeals.

Heard before Hon. Thomas W. Wert. Gabe Jolley was convicted of fornication, and he appeals. The only question in the record is the sufficiency of the indictment which avers that the name of one of the parties to the offense is unknown to the grand jury.

Heard before Hon. James H. Ballentine. William Witt was convicted of bigamy and he appeals. The court erred in refusing to grant the motion to quash the indictment, and also erred in overruling demurrers thereto. — Parker v. The State, 114 Ala. 690; Griffith v. The State, 90 Ala 583. The certified copies of the record in the Tennessee Court did not comply with the requirements of the United States statutes, and were hence, not admissible.

Heard before Hon. T. L. Sowell. Dan Hannegan was convicted of perjury and he appeals. The provisions of section 7151, Code 1907, are mandatory, and it must appear that the indictment was returned into open court.It is not sufficient that it is presented to the presiding judge. — Scott v. The State, 1 11 Ala 39.

Heard before Hon. Mike Sollie. Joe Powell was convicted of perjury and be appeals. Tbe court erred in permitting tbe original file in tbe civil suit to be introduced in evidence as tbe final record of tbe best proof. — Smith v. The State, 103 Ala. 69; Williams v. The State, 68 Ala. 555.

<p> Violating Prohibition Law. </p> <p>' Intoxicating Liquors; Evidence; Payment of Stamp Tax. — Proof of payment of a retail liquor dealer's special United States revenue stamp tax for the place and period covered by the indictment for a violation of the state liquor law may be made by a copy of the record thereof, required to be kept in the office of the internal revenue collector, when certified by the proper custodian, although the certification is made after the commencement of the prosecution.</p>

Heard before Hon. J. C. B. Gwin. A. Stokes was convicted of violating the prohibition law and he appeals. The court ■ erred in not excluding the evidence of the state’s witness Parker. — Acts 1909, p. 64, section 4.

Heard before Hon. Mike Sollie. Levi Dill was convicted of violating the prohibition law and he appeals. The court erred in refusing to grant a new trial on account of the misconduct of the jury. — K. G. M. & B. v. Philips, 98 Ala. 175; Blotter v. The State, 72 Ala. 179; 12 Cyc. 717-8.

Heard before Hon. Thomas W. Wert. B. F. Strange was convicted, of an offense against the liquor laws, and lie appeals.

Heard before Hon. Mike Sollie. Joe Haynes was convicted of violating the prohibition law and he appeals. The court erred in permitting the affidavit to be amended. — Perry v. The State, 78 Ala. 22. The court erred in putting defendant on trial on the matters shown in the record. — Section 6730, Code 1907; Moss v. The State, 42 Ala. 547; McGhee v. The State, 115 Ala. 138.

Heard before Hon. Mike Sollie. Will Preist was convicted of violating the prohibition law and be appeals. All property is equally sacred in view of tbe Constitution, and in prohibition statutes, it is the abuse or misuse which constitutes the mischief. — Eidge v. City of Bessemer, 164 Ala. 599; Vernon v. The State, 161 Ala. 83. There was no holding or possession or detention in this case. — Cal. 254.

Heard before Hon. Thomas W. Coleman, Jr. Lee Carson was convicted of violating the prohibition law, and he appeals. The payment of the internal revenue tax did not authorize the conviction of the defendant. — Green v. The State, 68 Ala. 541; 12 Cyc. 594; 6 Ene. P. & P. 628. The defendant admitted having procured the internal revenue license and stamp tax covering a part of the period covered by the indictment.

Heard before Hon. A. L. Rankin. W. M. Sheppard was convicted of violating the prohibition law and he appeals. The defendant was entitled to strike from the complete jury panel for the week. —-Section 32, Acts 1909, p. 318. The sentence of three months was a shorter term than Avas provided by law, and Avas hence, void. — Section 3, Acts 1909, p. 95; Ex parte Brown, 102 Ala. 179; Brown’s Case, 47 Ala. 47.

Heard before Hon. Mike Sollie. Jeff Coates was convicted of violating the prohibition law, and be appeals.

Heard before Hon. Thomas W. Wert. Chester Oldacre was convicted on an indictment charging him with selling, offering for sale, keeping for sale or otherwise disposing of, prohibited liquors contrary to law, and he appeals. The defendant’s motion to exclude the evidence should have been granted. — Randolph v. The State, 100 Ala. 139; Griffin v. The State, 76 Ala. 29; 1 Greenl. sec. 19. The affirmative charge should have been given. — O’Brien v. The State, 57 South. 1028.

Heard before Hon. W. W. Haralson. John Wiggs was convicted of violating the prohibition law, and he appeals. The first ground of demurrer to the replication should have been sustained. — McKenzie v. Forbes, 155 Ala. 259-; Owensboro W. Co. v. Hall, 149 Ala. 210. The other grounds of demurrer to the replication should have been sustained. —Henry v. The State, 33 Ala. 389; Cochran v. The State, 89 Ala. 43; Wesson v. The State, 109 Ala. 61-.

Heard before Hon. Thomas W. Coleman, Jr. Will Carson was indicted for violating the prohibition laws. From, a judgment making absolute a forfeiture of his undertaking of bail, he appeals.

<p>Appeal from Dallas Circuit Court.</p> <p>Heard before Hon. B. M. Miller.</p> <p>Sam Rosenberg was convicted of violating the prohibition law, and he appeals.</p> <p>The indictment charges that before the finding of this indictment Sam Rosenberg sold spirituous, vinous, or malt liquors, without a license and contrary to law. The following charges were refused to the defendant:</p> <p>(31) “The court charges the jury that, unless you believe from the evidence in this case beyond all reasonable doubt that the defendant participated in the act of selling the bottle of beer by the negro to the witness Russell, then you must acquit the defendant.”</p> <p>(34) “The court charges the jury that the mere knowledge of the sale of beer by the negro to the witness Russell, of the defendant, Sam Rosenberg, is not sufficient evidence to convict this defendant upon.”</p> <p>(16) “The court charges the jury that the innocence of the accused is presumed until his guilt is established by evidence in all material aspects, of the case beyond a reasonable doubt to a moral certainty, and it may also be said that the evidence of guilt must be strong and cogent, and unless it is so strong and cogent as to show that the defendant was guilty to a moral certainty he should be acquitted, and it is your duty to acquit him.”</p> <p>(20) “I charge you, gentlemen of the jury, that if there is one single fact proven to the satisfaction of the jury which is inconsistent with defendant’s guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit.”</p> <p>(22) “The court charges the jury that if the jury,upon considering all the evidence, have a reasonable doubt about defendant’s guilt arising out of any part of the evidence, they should find the defendant not guilty.”</p> <p>The court erred in sentencing the prisoner at forty cents per day. — Pugh v. The State, 56 South. 748; Dowling v. City of Troy, 56 South. 116. Counsel discusses the statutes relative to motion to strike from the bill of exceptions, and from the transcript of the bill of exceptions certain portions thereof, because the charge moved for by the defendant is not the oral charge of the court, and the general charge of the court should not have been incorporated in the bill.- — Tuscaloosa Gounty v. Logan, 50 Ala. 503; A. G. S. v. Dobbs, 101 Ala. 219; Orr v. The State, 117 Ala. 69. The demurrer to the indictment should have been sustained. — Harris y. The State, 50 Ala. 127; Hirschfelcler v. The State, 18 Ala. 112. Counsel cites authorities from foreign jurisdictions to the point that where a statute imposes additional punishment for repeated offenses, the indictment should allege whether it was the first or other offense. — 44 S. E. 873; 163 Mass. 226; 64 N. H. 440; 64 Hun. 72; 50 Ohio Stat, 428; 78 Pa. St. 490; 36 Tex. 6. The evidence was not sufficient to authorize or justify the conviction of the defendant. —Cook v. The State, 55 South. 269. Charge 14 should have been given. — Daniels v. The State, 149 Ala. 44. Counsel discusses other charges refused, but without citation of authority.</p> <p>The judgment for costs should be corrected. — Doioling v. City of Troy, 1 Ala. App. 508. The words, “without license” in the indictment were mere surplusage. — Po%o-ell v. The State, 69 Ala. 10; Bogan v. The State, 84 Ala. 449; Williams v. The State, 91 Ala. 14; Mitchell v. The State, 141 Ala. 90; Ab Scott v. The State, in MSS. The court imposed no additional punishment, and admitted no evidence of other convictions, and hence, it is not necessary to allege that this was a first offense. The court properly admitted evidence of other violations, of law. — Allison v. The Stale, 1 Ala. App. 206; Guarreno v. The Slate, 148 Ala. 673. Counsel discuss charges refused, but without citation of authority.</p>

Heard before Hon. Thomas W. Wert. M. E. Woodward was convicted of violating the prohibition laws,' and he appeals. The court erred in permitting it to be shown that the beverage found Avas colored like whisky.- — Wright v. The State, in MSS. The court erred in admitting the certified record of the stub kept in the U. S. Internal Revenue Office.— Sec. 2340, U. S. Rev. St.; Sec. 3983, Code 1907; 10 Enc. of Evi. 875; 1 Greenl. 498; Earl v. The State, 77 S. W. 376.

Heard before Hon. J. J. Curtis. Lee Dority was convicted of maliciously shooting' at or into a locomotive or car on a railroad train in or on which was a human being, and appeals.

Heard before Hon. P. J. Jarman. J. W. McCarty was charged with violating the State Live Stock Sanitary 'Board’s regulations relative to stock quarantine. A demurrer was sustained to the warrant and affidavit on constitutional grounds, and the state appeals. The Appellate Court is limited to a consideration of the constitutional questions involved. — State v. Street, 117 Ala. 203; Section 6246, Code 1907.

<p> Permitting Stock to Run at Large. </p> <p>Indictment and Information; Sufficiency. — The indictment is in the language of section 1, Acts 1909, p. 41, which creates and defines the offense, of permitting stock to run at large, and is therefore. sufficient.</p>

Heard before Hon. O. J. Semmes. Joseph Parker was prosecuted under a complaint charging a failure and refusal to pay a tax of three cents per barrel on three hundred barrels of oysters taken from the public reefs or private bedding grounds of the state of Alabama, for packing, canning, etc., or for sale. Demurrers were sustained to the complaint on account of the unconstitutionality of the statute,, and the State appeals.

Heard, before Hon. W. W. Haralson. Pick Koden was convicted of bribery, and he appeals. The following charges were refused the defendant: (11) “The court charges the jury that initials are not names; and if the letters W. B., before the name of Stallings, are not in fact his name, then your verdict should be not guilty.” (12) Same as 11.

Heard before Hon. J. W. Mabry. Law Lamar, Jr., was arrested upon a warrant and affidavit charging a violation of the fertilizer law, whereupon, he brought habeas corpus, and from an order discharging him, the State appeals. In an opinion handed down by the Supreme Court on May 9, 1912, 59 South. 473, the judgment of the Court of Appeals ivas reversed and petitioner discharged.

Heard before Hon. J. C. B. Gwin. Walter Dixon was allowed bail in the sum of $1,000 on a petition therefor by habeas corpus, and the State appeals. Section 6245, Code 1907, authorizes the state to appeal from an. order granting bail in a homicide case, and the appeal was taken within the time prescribed by section 6247. — Eos parte Sloan, 14 South. 15; Eco parte Nettles, 58 Ala. 275. By his own acts petitioner brought on the difficulty, — Beeves v. The State, 135 Ala. 14.

Heard before Hon. H. T. Benton. Application of Elbert Key for bail under an indictment charging him with murder. From an order denying bail, petitioner appeals. .The dying declarations were not admissible. — Justice v. The Sbate, 99 Ala. 180 v. The State, 95 Ala. 5; Blackburn v. The State, 98 Ala. 53; 4 Enc. of Evid. 925; Sanders v. The State, 56 South. 69; Sims v. The State, 139 Ala. 74; Hussey v. The Slate, 87 Ala. 121; Willis v. The State, 74 Ala. 21.

Heard before Hon. Thomas W. Coleman, Jr. Will Carson was indicted for violating the prohibition law, and failing to appear for trial, a forfeiture was entered against him and his bail. From an order rendered on a day set for hearing the same, making the forfeiture final and absolute, defendant appeals.

Heard before Hon. Thomas W. Coleman, Jr. Will Carson was indicted for violating the prohibition law and, failing to appear, his bond was declared forfeited. From a judgment rendered, on a day set for the hearing, forfeiture ivas declared final and absolute and defendant appeals. The finding of the court on the facts is the equivalent of the verdict of the jury, and not subject to review on appeal. —Mayhall v. The State, 146 Ala. 124; Boyd v. The State, 88 Ala. 169.

<p> Habeas Corpus. </p> <p>1. Appeal and Error; Review; Rinding of Trial Court. — Unless it Is clear that the trial court erred in its judgment admitting the defendant charged with murder in the first degree to bail,-this court will not disturb the finding of the trial court.</p> <p>2. Bail; Murder. — The evidence in this case examined and it is held that the finding of the court admitting the defendant to bail was not erroneous.</p>

Heard before Hon. S. L. Weaver. Charley Barlew, alias, etc., was convicted of murder in the second degree, and he appeals. The exceptions to evidence sufficiently appear from the opinion. The following charges were refused to the defendant: “(1) If the jury believe that the defendant had reasonable apprehension to believe that his life or limb was in danger at the time he fired the fatal shot, then you must acquit the defendant.

<p> Larceny. </p> <p>Larceny; Lvi donee. — Where the evidence tended to show fhal the defendant, who was a small trader, stole a hack and took it to town and sold it, it was error to admit the testimony of an accomplice, that at the same time they took saddles to town which came from a certain place, and harness which came from another place, in the absence of proof that these articles were stolen. Such testimony considered in connection with the testimony of a subsepuent witness regarding other circumstances from which it might be inferred that the defendant undertook to get the witness to steal articles for him to sell, and that the persons living at the two places were also thieves in defendant’s employment, tended to arouse in the minds of the jury a prejudice against the defendant, based on merely suspicious circumstances.</p>

Heard before Hon. E. J. Garrison. Len Barney was convicted of larceny, and he appeals.

Heard before Hon. Armstead Brown. Daniel Jackson, alias, was convicted of larceny and lie appeals. Tbe court improperly permitted evidence of tbe fact that tbe prosecutor found out that tbe defendant bad gone away from there. — Green v. The State, 98 Ala. 31. It is always competent to show bias of a. witness by showing that be sustained such a relation to a party as Avould likely influence bis testimony. — Hall v. The State, 137 Ala. 46; So. Ry. v. Morris, 143 Ala. 631.

<p>Appeal from Pike County Law Court.</p> <p>Heard before Hon. T. L. Borum.</p> <p>Alex Burney was convicted of obtaining money under false pretense, and he appeals.</p>

Heard before Hon. Armstead Brown. Action by tlie Boyal Exchange Assurance Corporation of England against the City of Montgomery to recover $400 paid under protest, as a privilege or license tax for doing business in the city. Judgment for plaintiff and defendant appeals.

Heard before Hon. John H. Disque. Action by the Alabama Consolidated Coal & Iron Company against L. L. Herzberg as judge of probate of Etowah County, to recover a license tax paid said judge under protest. Judgment for defendant and plaintiff appeals.

<p> Detinue. </p> <p>3. Mortgages; Foreclosure; Rights of Pwchaaer. — When purchasing at a mortgage foreclosure sale, the purchaser acquires only such title as the mortgagee has.</p> <p>2. Same; Right of Mortgagee; Prior Purchase. — Where a mortgage is taken simply in reliance upon the mortgagor’s statement that he owns and is in possession of the property to be mortgaged, a mortgagee is not in position to claim that a prior sale of such property by the mortgagor was invalid because the mortgagor was left in possession.</p> <p>3. Same; Act-ion for Possession of Property. — Where a chattel mortgage is not shown to have been recorded, and is not introduced in evidence it cannot be made the basis of recovery of the mortgaged property, at the instance of the purchaser at the foreclosure sale, from a subsequent bona fide purchaser from the mortgagor, though such mortgage is mentioned in another alleged to have been a renewal thereof made subsequent to the purchase.</p> <p>4. Fraudulent Conveyance; Validity; Retention of Possession. — The retention of the property by the seller if unexplained is prima facie evidence of fraud as to existing creditors of the seller; but, it explained so as to ue consistent with good faith, and an absolute sale, it is valid.</p> <p>5. Detinue; Documentary Evidence; Admissibility. — Where the purchaser of an engine at a mortgage foreclosure sale, brings detinue against one claiming title by purchase from the mortgagor prior to the giving of the mortgage, and 'the defendant asserts that part of the purchase price paid by his predecessor in title, since deceased, was a debt due from the mortgagor on certain notes, the notes given by the mortgagor and found among the effects of the deceased were admissible on evidence.</p> <p>6. Evidence; Declaration as to Possession. — Where a purchaser brought detinue for an engine purchased at mortgage foreclosure sale, it was competent to admit declarations of the mortgagor, made while in possession of the engine, and before the mortgage was executed, that he had sold the engine to another, and had rented it back.</p> <p>7. Same; Admissibility. — Where there was nothing in the question or answer indicating that the witness did not testify as to collective facts within his knowledge, it was not error to permit him to testify that the sale of the engine in controversy was made between other parties.</p> <p>8. Appeal ancl Error; Presentation; Objection. — The trial court will not be put in error for declining to exclude a responsive answer when no objection was interposed to the question calling for the answer.</p> <p>9. Same; Curing Error. — Where the same facts were subsequently-brought out without any objection, any error in previously admitting the same improper testimony, is cured.</p> <p>10. Same; Harmless Error; Evidence. — Where the verdict was for defendant in an action of detinue, the admission of evidence as to the value of the hire or use of the engine was harmless, if erroneous.</p> <p>11. Same. — Where throughout the trial and in the instructions the. property was treated as' personal, if it was error to exclude evidence that 'the property was not a fixture, it was harmless.</p> <p>12. Same; Instructions. — Where the charge of the court correctly stated the law applicable to the evidence, when read as a whole, technical inaccuracy in parts thereof are harmless.</p> <p>38. Trial; Objection to Evidence; Sufficiency. — When part of a witness’s testimony is relevant and competent, an objection going-to the whole of the testimony is not sufficient to present error in the admission of that part that was improper.</p>

Heard before Hon. E. J. Garrison. Detinue by W. D. Smith against C. C. Shadix. Judgment for defendant and plaintiff appeals. It is the wrongful detention and not the original taking that gives a cause of action in detinue. — Pruitt v. Gunn, 158 Ala. 123; Wittick v. Traun, 27 Ala. 562.

Heard before Hon. Thomas W. Coleman, Jr. Action by the City of Anniston against J. H. Duke to enforce sidewalk improvement assessment. Judgment for plaintiff' and defendant appeals. Under sections. 1361 and 1362, Code 1907, defendant was entitled to show that he protested to the city council and offered evidence showing that the work was not done in a good workmanlike manner, and also to show that fact on this trial. — Garner v. City of Anniston, in MSS.

Heard before Hon. Thomas W. Coleman, Jr. F. M. House became surety for one Bales on his appeal from the Recorder’s Court under a conviction for violating the city ordinance. From a judgment conditionally forfeiting the bond, House appeals.

Appear from Jefferson Circuit Court. Heard before Hon. E. C. Crowe.. Assumpsit by the Interstate Savings Bank against tlie Jefferson County Savings Bank. Judgment- for plaintiff, and defendant- appeals.

Heard before Hon. Gaston Gunter. Action by Lou. Jones against tbe District Grand Lodge of Alabama, upon a mutual benefit insurance certificate. Judgment for plaintiff and defendant appeals.

Heard before Hon. E. C. Crowe. Assumpsit by L. H. Harrison against A. C. Howe with garnishment in aid of suit to the Grand Lodge United Brothers of Friendship and Sisters of Mysterious Ten. From a judgment charging the garnishee, it appeals. As to the requirements before a judgment may be entered against garnishee on his answer, see. — Jefferson County 8. Bank v. Nathan, 138 Ala. 342.

Heard before Hon. W. W. Haralson. Action by Mattie Mason against John Mason and others for breach of the conditions of a bond. Judgment for plaintiff and defendant appeals.

Heard before Hon. C.. C. Nesmith. Action in assumpsit by James Bailey and J. W. Howard, copartners under the firm name of Bailey & Howard, against W. R. Mabry. Judgment for plaintiffs, and defendant appeals.

Heard before Hon. H. A. Pear.ce. Action by the Hirsck & Spitz Manufacturing Company against the City of Enterprise on a note. Judgment for defendant and plaintiff appeals. The goods were actually sold to the city and the proceeds utilized by the municipal government, and hence, the city was liable.— Allen v. LaFayette, 89 Ala. 641. The contract was made out of the state, and hence, the Moody Bill has no application. — 69 Ala. 111; 92 Ala. 163; 44 Am. St. Rep. 509; 35 Cyc. 93.

Heard before Hon. H. A. Pearce. Action by Meyer Lavine against tbe Liverpool & London & Globe Insurance Company to recover the face of the policy. Judgment for plaintiff and defendant appeals. The court erred in sustaining demurrer to plea 4. — Kelly v. St. P. F. & M. I. Co., 47 South. 748, and authorities there cited. The conditions mentioned in the policy refer to physical risks rather than moral hazard. — Ins. Go. v. Sorrell, 1 Baxter 352.

Heard before Hon. John H. Bisque. Assumpsit by E. C. Wallace against G. H. Myrick. Judgment for plaintiff, and defendant appeals. Tlie complaint was in tlie common counts.

Heard before Hon. E. C. Crowe. Action by August Weiman, doing business as Aug. Weiman & Co., on the common counts against J. W. Lindsay, T. M. Walker, and R. D. Goss, formerly doing business as the Alabama Couch Manufacturing Company, and the Alabama Couch Manufacturing Company. Judgment for plaintiff, and defendant appeals. The complaint was amended by striking out -1.

Heard before Hou. Lum Duke. Action by the W. T. Bawleigh Medical Company against W. L. Tarpley and others, on a contract of guaranty. Judgment for defendants and plaintiffs appeal. The distinction between a contract of suretyship and one of guaranty is stated in Saint v. Wheeler & Wilson, 95 Ala. 363, and 32 Cyc. 20.

Heard before Hon. C. P. Almon. Assumpsit by tbe Chattanooga Medicine Company against J. F. Taylor. From a judgment bolding defendant’s plea in abatement for naught, be appeals. Tbe court erred in overruling and bolding for naugbt defendant’s plea in abatement. — Section 6110, Code 1907; Montgomery I„ Wits. v. Eafaula O. & F. Go., 110 Ala. 395.

<p>Appeal from Marshall Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Assumpsit by John T. Graden against John W. Buford. Judgment for plaintiff and defendant appeals.</p>

Heard before Hon. W. W. Haralson. Action by E. H. Caldwell against the Tennessee Valley Bank with the suggestion that D. K. Caldwell claimed title to the money sued for. Judgment for plaintiff and D. K. Caldwell appeals.

Heard before Hon. S. L. Brewer. Action by Mrs. R. S. Robinson against J. O. King and another. Judgment for plaintiff and defendant appeals. The court erred in giving the affirmative charge for the plaintiff.— Rhodes F. Go. v. Weedon & Dent, 108 Ala. 252. The affirmative charge should never be given where there is a conflict in the evidence on material facts, as in this case. — L. & N. R. R. Go. v. Lancaster, 121 Ala. 471.

Heard before Hon. J. E. Blackwood. Assumpsit by the Glenn Refining Company against P. O. Webster. Judgment for defendant and plaintiff appeals. Under the evidence in this case defendant is bound by the contents of the paper and cannot be heard to say that he did not read it, or know what it contains. — 9 Cyc. 391; 35 Cyc. 63. The evidence was not sufficient to show fraud in the sale.— Wicldo v. Johnson Laboratory, 132 Ala. 269.

Heard before Hon. J. W. Mabry. Action by Carlos Yeitcb against V. B. Atkins Grocery & Commission Company for breach of contract. Judgment for defendant, and plaintiff appeals.

Heard before Hon. O. C. Nesmiti-i. Assumpsit by George McCleery against J. W. Rankin and another. Judgment for plaintiff and defendants ' appeal. The writing set out and upon which recovery was had does not constitute a contract as to Morris, hut is merely written evidence of a state of facts.

Heard before Hon. W. W. Haralson. Action by Bertha B. Dorsey against A. It. Hooper. Judgment for plaintiff, and defendant appeals.' It seems from the record that A. R. Hooper had judgment against J. L. Dorsey, and on execution issued thereon levied upon 21 dogs alleged to be the property of said J. L. Dorsey. The dogs were sold, and Bertha, B. Dorsey brings this action to recover for the same, claiming that the dogs were her property, and not that of J. L. Dorsey.

Heard before Hon. A. O. Lane. Action by Mrs. W. J. Garrett against E. L. Higdon,, as sheriff, in trespass and trover. Judgment for plaintiff, and defendant appeals.

Heard before Hon. John H. Disque. Action by Hood & Johnson against Sitz & Company in case for the destruction of a lien upon three bales of cotton. Judgment for defendant and plaintiff appeals. The homestead inures jointly to the widow and minor, and the minor is equally interested with his mother in the crop.— Section 4196, et seq., Code 1907. Under the facts in this case, a minor could mortgage his part of the crop for supplies. — Hooper v. Payne, 94 Ala. 228.

Heard before Hon: A. O. Lane. Action by William T. Bailey against the Birmingham Water Works for damages for cutting off his water supply. Judgment for plaintiff for |400.

Heard before Hon. W. W. Haralson. Action by W. M. Cardwell against W. P. Hall. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. H. Alston. Case by J. W. Wright against A. A. Gibbs. Judgment for plaintiff and defendant appeals. Tlie contract was not a deed but only a license, and passed no title to the timber. — Riddle v. Brown, 20 Ala. 412; Heflin v. Bingham, 56 Ala. 566; Hieles v. Swift Greek Mill Go., 133 Ala. 411. Growing trees are a part of the realty, and are within the statute of frauds. — Heflin v. Bingham, supra; 17 Am. Rep. 595; 19 L. R. A. 721.

Heard before Hon. J. C. B. Gwin. Action by J. R. Dudley against C. L. Stansberry and others for damages for extorting money by legal process. Judgment for defendants,, and plaintiff appeals.

<p> Breach of Covenant. </p> <p>1. Covenant; Breach; Damages. — The measure of damages for breach of covenant of warranty against encumbrances in a deed conveying land abutting on a street, but conveying no part of the street, based on the allegation that the grantor had previously released the railroad company from liability for damages to the abutting property arising by reason of the construction and operation of the railroad in the street, is the difference in the market value of the land before and after the construction and operation of the railroad; and where the construction and operation of the railroad enhanced the market value of the land, but decreased the rental value thereof for a particular use, the grantee could only recover nominal damages.</p> <p>2. Same; Evidence. — Evidence. that the rental value of the tenement houses on the land was decreased by reason of the construction and operation of the railroad, was admissible for the purpose of showing the market value of the property before and after the construction and operation, but was not admissible to show the difference in the rental value as an element of recoverable damages.</p> <p>3. Appeal and Error; Harmless Error; Evidence. — Where, under the evidence, only nominal damages were recoverable, the refusal to give instructions on the measure of damages was not prejudicial.</p> <p>4. Same; Evidence. — Where the only damages recoverable was the difference in the market value of the land before and after the construction and operation of the railroad, and the evidence showed that the value had been enhanced by-the railroad, and none of the evidence offered by the plaintiff and excluded, and none admitted for the defendant over plaintiff’s objection showed anything different, if error was committed, it was harmless,</p> <p>5. Courts; Dismissal; Nominal Damages.- — Where an action was brought for an amount of which the city court of Birmingham had jurisdiction, and a verdict was returned for nominal damages, and plaintiff was entitled to no more than nominal damages, the verdict for nominal damages was properly set aside 'and the action dismissed under section 5355, Code 1907, the plaintiff not being entitled to full costs although recovering nominal damages.</p>

Heard before Hon. Charles W. Ferguson. Action by Mrs. Sarah Long against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. C. P. Almon. Action by Killis Campbell against Dan Johnson for false imprisonment. Judgment for defendant and plaintiff appeals. The warrant was hot sufficient to afford a defense to an action of false imprisonment based upon an arrest under such a warrant. — Duckworth v. Johnson, 7 Ala. 538; Thrash v. Bennett, 57 Ala. 161; Rhodes v. King, 52 Ala. 272; Fields v. Ireland, 21 Ala. 240.

Heard before Hon. O. B. Cornelius, Special Judge. Action by Tom Collins against J. M. Hawkins for damages for malicious prosecution. Judgment for plaintiff and defendant appeals. The evidence without conflict showed that defendant in the prosecution had failed and refused to perform the duties required of liim by subdivisions 3 and 4, section 5797, Code 1907, which is made a misdemeanor by section 7736, Code 1907.

Heard before Hon. A. O. Lane. Action by Tom Ellis, by next friend, against tbe Birmingham Railway, Light & Power Company, for damages for malicious prosecution. Judgment for plaintiff and defendant appeals. Counsel discuss the exceptions to the evidence, but without citation of authority. They insist that the court erred in refusing the third charge requested in writing. — So.

Appear from Anniston City Court. Heard before Hon. Thomas W. Coleman, Jr. Action by L. D. Steele against James White. From a judgment for plaintiff, defendant appeals.

Heard before Hon. Saffold Berney. Action by Geneva Walker against J. D. Terrill for injury from collision witli her of an automobile. Judgment for plaintiff and defendant appeals.

Heard before Hon. C. C. Nesmith. Action by William C. Leacb against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Thomas W. Wert. Action by John R. Lowery against Tom Bowles for damages for frightening a horse by automobile. Judgment- for plain tiffj and defendant 'appeals.

Heard before Hon. H. A. Sharpe. Action by Lida Riley against the Pullman Company for failure to transport, her according to contract. Judgment for plaintiff, and defendant appeals.

Heard before Hon. John W. Inzer. Action by R. M. Wells against the Louisville & Nashville Railroad Company, for damages for killing a horse and injuring buggy and harness in a railroad crossing accident. Judgment for defendant and plaintiff appeals. Under the cases of O. of G. Ry. Go. v. Fuller, 164 Ala. 196, and A. G. 8. R. R. Go. v. Fulton, 144 Ala.. 332, plaintiff was entitled to recover under section 5473, Code 1907, on the theory advanced by his second count.

Heard before Hon. E. A. Tutwiler, Special Judge. Action by C. C. Gewin & Son, against the Alabama Great Southern Railway Company, for damages for injuries to stock in transit. Judgment for plaintiff and defendant appeals.

Heard before Hon. W. W. Haralson. Action by A. M. Hinds against the Nashville, Chattanooga & St. Louis Bailway for loss of cattle while being transported. Judgment for plaintiff, and defendant appeals. For decision of Supreme Court in answer to certified questions, see 59 South. 669. The pleas will be found set out in the report of this case as certified, to the Supreme Court.

Heard before Hon. J. C. Richardson. Action by J. Ms McKenzie against the Louisville & Nashville Railroad Company, for damages for loss of freight. Judgment for plaintiff and defendant appeals. A common carrier is not liable for loss or damage to goods occasioned by the act of God, where without fault itself. — A. G. 8. v. Thomas, 89 Ala. 294; Smith v. Western Ily., 91 Ala. 455; Ooosa Stemiboat Go. v. Barclay, 30 Ala. 120; Bridges’ Oase, 86 Ala. 452.

Heard before Hon. Armstead Brown. Action by J. J. Williams and another against the Louisviile & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. The complaint was as follows: “1.

Heard before Hou. Gaston Gunter. Action by C. L. Butli & Sous against the Southern Express Company, for damages for the wrongful delivery of goods. Judgment for plaintiff and defendant appeals. The demurrers to the pleas were too general. — Ryall v. Allen, 143 Ala. 222; Moore v. Hein eke, 119 Ala. 627. Where the demurrer does not specify the objections it should be overruled, although the pleading is not good. — Turk v. State, 140 Ala. 110; Wilke v.. Johnson, 132 Ala. 268.

Heard before Hon. C. P. Almon. Action by G. E. Bidgood against the Northern Alabama Railway Company. Judgment for plaintiff and defendant appeals.

Heard before Hon. A. E. Gamble. Action by the L. & N. R. R. Co. against John S. McMullen, to recover freight charges. Judgment for defendant and plaintiff appeals.