Volume 6 — Alabama Appellate Reports

Heard before Hon. W. W. Pearson. Dawes Barker ivas convicted of murder in the second degree, and he appeals. Judgment was entered March 22, 1912, and the transcript was filed in the Court of Appeals September 25, 1912. The bill of exceptions was presented June 12, 1912, and signed the same day. The notice of appeal was signed by the clerk August 17, 1912.

Heard before Hon. Henry B. Foster. Wert Naugher was convicted of manslaughter in the first degree, and he appeals.

Heard before Hon. W. J. McCorvey. Sam Stevens was convicted of assault and battery, and he appeals. The killing was alleged to have been the result of striking Betty Stevens Avith a buggy Avhip.

Heard before Hon. D. W. Speaks. Marion Gibson was convicted of manslaughter, and he appeals. The following charges are refused to the defendant: (13) “Any remarks made by the defendant about the deceased’s wife, if you find such remarks were made, would not be such acts and conduct on the part of the, defendant as to put him at fault in bringing on the difficulty at the time of the killing.

Heard before Hon. J. C. B. Gwin. Carson Robinson was convicted of manslaughter in the first degree, and he appeals. The court erred in the admission of evidence. — Chamhlee v. The State, 78 Ala. 466. The verdict will not support the judgment entered. — Section 7620, Code 1907; Zaner v. The State, 8 South. 698; Ex parte Thomas, 113 Ala. 1; Henderson v. The State, 98 Ala. 45. There is but one error in the record, and that is in the sentence pronounced.

Heard before Hon. Mike Sollie. From a conviction of murder in the second degree, Savannah Williams appeals. Counsel discuss the merits of the case and cite authority in support thereof, but in view of the opinion it is not deemed necessary to set it out.

Heard before Hon. Armstead Brown. C. L. McLendon was convicted of violating the revenue law, imposing license upon those engaged in the practice of law, and he appeals. For answer of the Supreme Court to the question of constitutionality propounded by the Court of Appeals, see 60 South. 392.

Heard before Hon. Samuel B. Browne. Clem Askew was convicted of violating the prohibition law, and he appeals. The motion to quash the indictment is not set out in the record, and therefore, cannot be reviewed. — McQueen v. The State, 188 Ala. 63; Gaines v. The State, 149 Ala. 29; Lacy v. The State, 154 Ala. 65.

Heard before Hon. Mike Sollie. Dave Lampley was convicted of violating the prohibition law, and he appeals. Counsel discusses the merits of the appeal, with citation of authority, but in view of the opinion it is not deemed necessary to set them out. On the motion to dismiss the appeal counsel insists that it came too late, as it was not made- within the time limited by rule 41. — Peters v. Nolan, 57 South. 398; Martin Mach.

Heard before Hon. Bernard Harwood. Douglass Nickerson was convicted of violating the prohibition laAV, and he appeals. The conrt was not in error in overruling the question asked Graham as it called for his uncommunicated motive or intention. — Weaver v. The State, 1 Ala. App. 48, and cases cited. It Avas competent to shoAV that a similar charge for a similar offense was pending against the Avitness. — WilJcerson v. The State, 140 Ala. 165.

Heard before Hou. O. J. Semmes. Jacob J. Hauser was convicted of violating the prohibition law, and appeals.

Heard before Hon. A. E. Gamble. Clem Askew was convicted of violating the prohibition law, and he appeals. The court was not in error .in admitting evidence of other offenses. — Moss v. The State, 58 South. 62; Pugh v. The State, 58 South. 936; Wicard v. The State, 109 Ala. 45; McQueen v. The State, 108 Ala. 54; Sellers v. The State, 98 Ala. 72.

Heard before Hon. J.. C. B. Gwin. Lucy Couch was convicted of violating the prohibition law, and she appeals. Counsel discuss the indictment, but without citation of authority. They insist that the court erred in not excluding the solicitor’s remarks. — B. It. L. d P. Co. v. Drennen, 57 South. 876.

Heard before Hon. M. Fkank Cahalan. Martin E. Gleason was convicted of embezzlement, and he appeals. The following is the indictment omitting the formal charging part.

Heard before Hon. John T. Lackland. Dan Brown was convicted of burglary and he appeals. It was the jury’s province to determine the weight and sufficiency of the evidence, and the court properly denied the affirmative charge. — Kemp v. The State, 89 Ala. 52; Shepherd v. The State, 94 Ala'. 102.

Heard before Hon. Lum Duke. Watkins Phelps was convicted of grand larceny, and he appeals. .

Heard before Hon. Ti-iomas W. Davis. Richard Lockhart was convicted of hunting on the lands of another without permission, and he appeals.

Heard before Hon. J. E. Blackwood. Joshua Arden was convicted under an indictment charging burglary and grand larceny, and he appeals. The indictment as to the larceny count was not good. — Grant v. The State, 55 Ala. 208; James v. The State, 115 Ala. 86. The court erred in its admission of evidence and in the oral charge. — Buchanan v. The State, 109 Ala. 7. The court erred in defining reasonable doubt. — Pickens v. The State, 115 Ala. 50; Whittaker v. State, 106 Ala. 30.

Appead from Jefferson Circuit Court. Heard before Hon. E. C. Crowe. Assumpsit by Sarahi F. Hunking, executrix, against Oscar Fulgham. From an order entering a non suit, plaintiff appeals, and from: an order granting plaintiff a new trial, defendant appeals. On plaintiff’s appeal a dismissal is entered, and the order granting a new trial is affirmed on defendant’s appeal.

Heard before Hon. J. W. Mabry. Action by Richard & Thalheimer against R. R. Kornegay, revived on defendant’s death in the name of his executors. From a judgment for plaintiff, defendant appeals.

Heard before Hon'. Hugh D. Merrill. Action by T. A. Hamilton, as executrix, and others against F. M. House for use and occupation. Judgment for defendant, and plaintiffs appeal. The complaint contains several counts for money had and received, for conversion, and for use and occupation.

Heard before Hon. M. Sollie. Assumpsit by R. D. Irby against G. O. Kaigler. Judgment for plaintiff and from an order granting defendant a new trial plaintiff appeals. Tbe bill was not subject to dismissal because violative of rule 32, as tbe evidence is very short, and the whole transcript brief. — Gassenlieimer P. Go. v. Marietta P. Go., 127 Ala. 183. The case at bar was totally different from the one just cited above and that of So. Ry. Go. v. Jaclcson, 133 Ala. 384.

Heard before Hon. Saffold Berne,y. Action in assumpsit by the China Mutual Insurance Company against Hieronymous Brothers. From a judgment for plaintiff, defendants appeal. The complaint is in usual form for declaration on a negotiable instrument.

Heard before Hon. C. C. Nesmith. Action by J. W. Stephenson against the Jebeles & Colias Confectionery Company for damages for breach of contract. Judgment for plaintiff and defendants appeal.

Heard before Hon. H. B. Foster. Action by Annie K. Harris against J. S. Free and others for damages for breach of contract. Judgment for defendants, and plaintiff appeals.

Heard before Hon. Saeeold Berney. Assumpsit and trover by the McDermott Advertising Agency against John T. Cochrane. Judgment for plaintiff and defendant appeals. Construing counts 2 and 3 most favorably to the pleader it must be inferred that the property alleged to have been converted or taken was a part of the freehold and not subject to an action of trover. — Tluoeatt v. Stamn, 67 Ala. 96; Wentz v. Fincher, 55 Ala. Dec. 416.

Heard before Hon. Et C. Crowe. Action by Gus Clark against Agee & Company. Held: the court at a later term (the next succeeding term) granted the motion. Our insistence is that under the Practice Act for the Jefferson Circuit Court, Acts 1888-9, p. 801, and section 3240, Code 1907, the court was without authority to grant or take any other action relative to the motion.

Heard before Hon. Saffold Berney. Assumpsit by the Mobile Electrical Supply Company against the city of Mobilé. Judgment for plaintiff and defendant appeals. The power to make municipal contracts unless otherwise provided by law rests with the council as the general governing body.— Hall v. Cockerell, 28 Ala. 509. In matters of official discretion, the council itself must act. — Jewel B. Co. v. Bertha, 91 Minn. 9;.Seibrecht v. New Orleans.

Appeal 'from Bessemer City Court. Heard before Hon. William Jackson. Action by J. B. F'aulks against tbe Bellview Cemetery Company for work and labor, and on tbe contract. From a Judgment for plaintiff defendants appeal. The court erred in overruling* demurrers to the complaint. — Montgomery Mfg. Go. v. Thomas, 20 Ala. 473; Armour P. Go. v. Young, 39 South. 680; 9 Cyc. 721.

Heard before Hon. A. L. Rankin. Assumpsit by J. A. Mason against J. B. Bullock. Judgment for defendant and plaintiff appeals. The mere subsisting agreement to submit to a common law arbitration is no- bar to a suit brought on the same subject matter, and before final award.— Wright v. City Council, 79 Ala. 481; Ex parte Garlington, 25 Ala. 170. The alleged first award rendered bad no operative effect. — McCran-y v. Harrison, 36 Ala. 577.

Heard before Hon. C. C. Nesmith. Assumpsit by H. G. Woodward against C. C. Nixon. Judgment for plaintiff, and defendant appeals. The action was on a promissory note.

Heard before Hon. H. A. Pearce. Assumpsit by Schloss Bros. & Co., against the Gibson Dry Goods Company. From a judgment for defendant, plaintiffs appeal.

Heard before Hon. H. A. Pearce. Action by J. T. Weeks and others, against the Standard Oil Company, for breach of contract to furnish gasoline. Judgment. for plaintiff and defendant appeals. The court, should have sustained demurrers to the complaint. — 6 Ene. P. & P. 248; I Id. 741; 4 Id. 918; Hooper v. Armstrong, 69 Ala. 344. The court should have granted defendant’s motion for non-suit for failure to answer interrogatories. — Allen v. Lathrop, 90 Ala. 490; Culver v. Ala.

Heard before Hon. J. E. Blackwood. Assumpsit by Bass & Heard against Peter Clements, individually, and as a member of the partnership of George T. Mote. Judgment for defendant and plaintiff appeals. There was error in the judgment rendered finding the issue in favor of the defendant. — Bank v. Rice, 89 Ala. 201; 14 Ala. 303. The evidence does not disclose the existence of a partnership, but rather a loan from defendant to Mote. — 53 Ala. 205; Mayf. 387.

Heard before Hón. C. P. Almon. Action by the Wilson Mercantile Company against J. B. F. Smith. From a judgment for plaintiff, defendant appeals.

Heard before Hon. Samuel B. Br'owne. Action by M. J. Falligant against the Gulf City Boiler Works C'o. on a wage assignment. Judgment for plaintiff, and defendant appeals.

Heard before Hou. W. W. Haralson. Assupmsit by the Peabody School Furniture Company, against F. E. Whitman and another. Judgment for defendants and plaintiffs appeal. The contract was not for a principal and so bound the signers individually. — Richmond L. Whs. v. Montague, 119 Ala. 84; Briel v. Exchange Nat. Bank, 55 South. 81. The addition of the office, etc., does not exempt from personal liability. — Section 4977, Code 1907; Brannen’s Negotia. Inst. Law, 25; 9 Atl. 466.

E. O. Crowe. Assumpsit by tbe McCaskey Register Company, against M. H. Bennett. Judgment for defendant and plaintiff appeals. The' court erred in allowing tbe affidavit to be filed in the circuit court. — Section 3970, Code 1907Bird v. Jones,-84 Ala. 341.

■Heard before Hon. C. P. Almon. Action by the Standard Talking Machine Company against D. O. Matthews Supply Company and others. From a judgment for defendants, plaintiff appeals.

Heard before Hon. John C. Pugh. Action by tbe Jefferson County Savings Bank against J. T. Glover as endorser on a note. Tbe finding was not supported by tbe evidence, and as pleas 4 and 5 were fully proven judgment should have been rendered for tbe defendant. Tbe bill of exceptions does not show sufficiently tbe conclusions and judgment of tbe trial court upon tbe evidence as required by section 7, Acts 1888-9, p. 801; Stevenson v. Allison, 165 Ala. 238.

Heard before Hon. Gaston Gunter. Assumpsit by George W. Holland against the Capital Security Company. From a judgment on the pleadings adverse to it, defendant appeals. A rescission cannot be had even in case of fraud, where there has been a want of common and ordinary diligence. —Steele v. Kimball, 3 Ala. 352; Dean v. Oliver, 131 Ala. 634; Day v. Higdon, 162 Ala. 530; lsí Hat. Bank v. Allen, 100 Ala. 476.

Heard before Hon. C. C. Nesmith. Assumpsit by Susie H. Cole as administratrix, against N. F. Thompson. Defendant appeals from the judgment rendered against him: Counsel discuss the errors assigned, but without citation of authority.

Heard before Hon. Saffold Be-rney. Assumpsit by tbe Central Lumber & Timber Company against the Georgia Pine & Lumber Company. Judgment for plaintiff and defendant appeals. Under the-facts in this case, indebitatus assumpsit will not lie. — Mamcell v. Moore, 163 Ala. 490; Smith v. Sharpe, 162 Ala. 433; Papot v. Howard*, 154 Ala. 310; Garlón O. Go. v. Cunningham, 153 Ala. 5-73; Martin v. Massey, 127 Ala. 504; Haas v. Iron Works, 88 Ala. 323.

Heard before Hon. A. H. Alston. Assumpsit by the International Recording Company against the W. A.- Handley Manufacturing Company. Judgment for plaintiff and defendant appeals. The court erred in admitting tbe order signed by Wright, the president, without first proving its execution. — Garrett v. Garrett, 64 Ala. 263; Shrimpton v. Brice, 102 Ala. 655.

Heard before Hon. E. C. Crowe. Action by the North Birmingham Building Association against J. M. and Mattie Woody, begun by attachment to enforce a landlord’s lien, in which Friel and others became sureties on the forthcoming bond. From an order dismissing the motion to stay execution on the bond, the sureties appeal. The judgment was summary and notice should have been given the appellant before it was taken. — 1 Ala. 542; 3 Ala. 287.

Heard before Hou. J. E. Blackw'ood. Assumpsit by C. L. Gunn against Mrs. Thomas Yen-tress. Judgment for plaintiff and defendant appeals. There cannot be an account stated without an original liability as a basis for the account. — Ware v. Manning, 86 Ala. 242; Burns v. Campbell, 71 Ala. 271; Loventhal v. Morris, 103 Ala. 835.

Heard before Hon. C. W. Ferguson. Action by Mrs. Mary Phillips against Joe Marsicano. Judgment for plaintiff, and defendant appeals.

Heard before Hon. E. C. Crowe. .Action by J. S. Ireland against W. A. Brown, begun in the justice court and certioraried to the Circuit Court more than six months after the rendition of the judgment in the justice court. From a judgment in the circuit court annulling the judgment in the justice court, the plaintiff appeals.

Heard before Hou. Samuel B. Browne. Action by Mary A. Pitard against Maude McDowell, and others, to enforce a lien for rent. From an order dismissing the action, plaintiff appeals. The bill of exceptions should be established. — M. & E. R. R. Go. v. Perryman, 7 South. 383. The court erred in refusing the motion to quash the writ. — Section 3259, Oodé 1907; Gray v. So. Ry. Go., 116 Ala. 654; Sellers v. Smith, 39 South. 356; Walsh v. Hill, 53 South. 746.

Heard before Hon. E. C. Crowe. Action by Annie Harvey against the Endowment Department of District Grand Lodge No. 23, of Alabama, of the Grand United Order of Odd Fellows. From a judgment dismissing an application for a rehearing after a default judgment for plaintiff, defendant appeals, and moves for writs of mandamus and certiorari. Motions denied, and judgment affirmed.

Heard, before Hon. E. S. Lyman. Action by Goldberg & Lewis against J. D. Masters and J. H. Stone. Judgment for plaintiffs against defendant Stone, and he appeals.

Heard before Hon. A. L. Rankin. Detinue by J. J. Pelham against J. W. Shreve, wherein the Shreve-Milligan Live Stock & Vehicle Company interposed a claim for the property sued for. Judgment for plaintiff and claimant appeals. The court erred in permitting the plaintiff to prove and recover the reasonable market value of the property from the time of suit until the trial.

Heard before Hon. H. A. Pearce. Detinue by Sidney Willoughby against J. B. Jernigan and others, in which plaintiff recovered certain cumbersome and heavy machinery. On a tender of the property as set out in the opinion, plaintiff refused to receive it, and had the forthcoming bond marked forfeited, whereupon, defendants filed a petition to supersede the execution of the order and from a judgment superseding,, the original plaintiff appeals.

Heard before Hon. J. J. Curtis. Detinue by C. R. Nuckols against Ida Andrews. Judgment for defendant and plaintiff appeals. The statement of counsel was as of a fact and was highly prejudicial to the plaintiff’s cause. — Cross v.- State, 68 Ala. 476; McAdory v. State, 62 Ala. 154; Anderson v. State, 104 Ala. 83; Dollar v. State, 99 Ala. 236; Insurance Co. v. Allen, 80 Ala. 571; Laoie v. State, 85 Ala. 11.

Heard before Hon. W. W. Haralson. H. O. Little and another as execution creditors of John A. Gilbreath had. execution on a recorded judgment levied on certain property as the property of John A. Gilbreath, and S. H. Lature interposed claim thereto under mortgage and sale of the property to him. Judgment for plaintiff and claimant appeals.

Heard before Hon. A. O. Lane. Motion by W. M. Fields against E. L. Higdon as sheriff, and tbe sureties on his official bond, for a summary judgment for failure of the sheriff to levy an attachment writ, coming into his hands as such officer. From a judgment granting the motion defendant appeals.

Clair Circuit Court. Heard before Hon. James E. Blackwood. Supersedeas by Lee Byers and others against A. O. Campbell. From a judgment granting the petition, defendant appeals.

Heard before Hon. J. T. Stokely. Action by Mrs. M. C. Klassen against the Kates Transfer & Warehouse Company, and others. Judgment for plaintiff: and defendants appeal. Under the authority of Flalce v. The State, 56 South. 47, on the facts as presented, the bill of exceptions should be established.

Heard before Hon. James E. Blackwood. Action by Alf Frederick against tbe Coosa Pipe & Foundry Company, for damages for personal injury sustained while engaged in his employment. Judgment for defendant and plaintiff appeals. The court erred in sustaining demurrer to count 1. — Jaclcson L. Co. v. Cunningham,, 141 Ala. 537; Conrad v. Cray, 109 Ala. 130.

Heard before Hon. H. A. Si-iarpe. Action by Charles C. Moore against the Sloss-Sheffleld Steel & Iron Company. From a judgment for plaintiff, defendant appeals. The complaint is as follows: “Count 1.

Heard before Hon. A. O. Lane. Action by Mattie E. McDaniel against the Birmingham Railway, Light & Power Company for damages to her as a passenger by putting her off at the wrong place. Judgment for plaintiff, and defendant appeals. The complaint is as follows: “Count 1.

Perry Circuit Court. Heard before Hon. B. M. Miller. Action by Carlos Veitch against the Western Union-Telegraph Company, for damages for failure to promptly transmit and deliver a message. Judgment for defendant and plaintiff appeals. The loss suffered in cases of this character is the difference between the contract price, and the-marekt price at the time and place of delivery. — Young v. Cure-ton, 87 Ala. 727; Penn v. Smith, 104 Ala. 405.

Heard before Hou. S. L. Brewer. Actiou by Ella Brown against the Western Union Telegraph Company for damages for failure to deliver a telegram. Judgment for plaintiff and defendant appeals.

Heard before 1-Ion. W. W. Haralson. Action by the Albertville Canning Company against the Western Union Telegraph Company, for failure to deliver a message. Judgment for plaintiff and defendant appeals.

Heard before Hon. Thomas W. Coleman, Je. Action by tbe Anniston Cordage Company against the Western Union Telegraph Company, for damages for error in transmission and delivery of a telegram. Judgment for plaintiff and defendant appeals. The doctrine that a third party although not primarily a party to the contract, may sue for a breach, is an intrenchment upon fundamental principles and must be kept strictly within limits. — Fraser v. W. U. T. Go., 2 A. & E. Ann.

Heard before Hon. John T. Lackland. Detinue by J. S. Ryall against Pearson Brothers. Judgment for defendants and plaintiff appeals. The pleas are defective and demurrers should have been sustained thereto. — Gilbraith v. J ones, 60 Ala. 129; 3 Brick. 406. The evidence was hearsay and should have been excluded. ■ — Moon v. Maxwell, 155 Ala. 299.

Heard before Hon. Thomas W. Wert. Action by Mary A. Thomason against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear in the opinion.

Heard before Hon. E. C. Crowe. Action by Willie Gilbert pro ami, against A. G. S. R. R. Co., for. damages for injuries received while a passenger.

Heard before Hou. E. C. Crowe. Action by W. F. Cornelius against the Louisville & Nasliville Railroad Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. E. C. Crowe. . Action by Major Willis against the Birmingham Coal & Iron Company for damages for injuries while in its employ. Judgment for plaintiff and defendant appeals.

Heard before 1-Ion. E. C. Crowe. Action by G. W. Redd against the Sloss-S'heffield Steel & Iron Company for damages for injuries received while in its employ. Judgment for plaintiff and defendant appeals. The court erred in refusing the affirmative charge. — Tabler v. Pioneer M. cG M. Go., 52 South. 95; M. cG O. v; George, 94 Ala. 218; Bir. F. & M. Go. v. Gross, 9.7 Ala. 255; Ala. G. G. cG I. Go. v. Hammond, 156 Ala. 225.

Heard before I-Ion. E. C. Crowe. Action by Frank P. Barker against the Tennessee Coal, Iron & Railroad Company. From a judgment for plaintiff, defendant, appeals.

Heard before Hon. Gaston Gunter. Action by J. C. Kendrick against tbe Citizens’ Light,, Heat & Power Company for damages for personal injnries. From, a judgment for plaintiff, defendant • appeals. The allegations of the complaint.and the facts in the case’ sufficiently appear from the opinion.

Heard before Hon. E. C. Crowe. Action by Dan-Hunt against the St. Lonis & San Francisco Railroad Company in tort and assumpsit, for breach of contract. Judgment for plaintiff and defendant appeals. The demurrers should have been sustained to the four counts of the complaint. — 38 Cyc. 418-427; L. & N. v. Hines, 121 Ala. 234; W. ü. T. Go. v. Krislibaum, 132 Ala. 539; Mobile L. I. Go. v. Randall, 74 Ala. 170; Heioton v. Brooks, 134 Ala. 269.

Heard before Hon. Charles E. Waller. Action by Noah Ellis against tbe Southern Railway Company for damages from being hit by defendant’s train. From a judgment for plaintiff, defendant appeals. The facts and pleadings sufficiently appear.

Heard before Hon. John C. Pugh. Action by Blufus Fuller against the Republic Iron- & Steel Company. From a judgment for plaintiff, defendant appeals.

Heard before Hou. W. W. Haralson. Action by N. L. Latham against W. A. Elrod for damages for the death of a mule. Judgment for defendant, and plaintiff appeals.

Heard before Hon. W. W. Haralson. Action by H. C. Cobb against tbe Southern Bailway Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. J. Curtis. Action by W. G. O’Rear against tbe Manchester Lumber Company, for damages for injury to live stock. Judgment for defendant, and plaintiff appeals. Under tbe evidence in this case tbe question of defendant’s liability was one for tbe jury, and tbe court erred in taking tbe case from them. — K. O. M. & B. v. Wag and, 134 Ala. 391; L. & N. v. Lancaster, 121 Ala. 471; So. Ry. v. Posten, 131 Ala. 671; A. G. S. v. Boyd, 124 Ala. 525; So.

Heard before Hon. John T. Lackland. Action by Goerge Still against the Tombigbee Valley Railroad Company, for damages for killing stock. Judgment for plaintiff and defendant appeals. There was not sufficient evidence to connect defendant with the injury or to show what was the amount of the damages. —13 Cyc. 149; 33 Cyc. 1293; Alley v. Daniel, 75 Ala. 403.

Heard before Hon. John T. Lackland. Action by Willis Wilks against the Tombigbee Valley Railroad Company, for damages for killing stock. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Saffold Berney. Action by the Zimmern’s Coal Company for the use of the Mobile Electric Company, against the Louisville & Nashville Railroad Company, for the loss of freight in transit. Judgment for defendant and plaintiff appeals. The court erred in ruling out all of the evidence introduced by the plaintiff upon the theory that the plaintiff was not entitled to maintain the action under the proof. — Walter v. A. G-. S. R. R. Oo., 142 Ala. 474; So. Fx.

Heard before Hon. J. E. Blackwood. Action by L. L. Hearn against the Louisville & Nashville Railroad Company, for damages for the loss of goods. Judgment for defendant, and plaintiff appeals. There was no delegation of power to Rhodes by appellant, and no assumption of poAver by Rhodes, and hence,’ no agency. — 1 A. & E. Enc. of LaAV, 937; 31 Cyc. 1189.

Thomas W. Coleman, Jr. Action by J. C. Hill against the Southern Railway Company for treating a shipment of horses for injuries received. There was judgment for plaintiff, which on motion was set aside and a new trial entered. From an order granting a new trial plaintiff appeals. Affirmed.

Heard, before Hon. M. Sollie. Action by E. M. Patterson against the Central of Georgia Railway Company for damage for loss or injury to goods by fire. Judgment for plaintiff and defendant appeals. Reversed The contract set up by replication No. 2, is violative of the Elkins and the Interstate Commerce Acts, and hence, the demurrers to the replications should .have been sustained. — G. of Get. v. Sims, 169 Ala. 295; Gastle v. B. é O. R. R. Go., 8 I. C. C. R. 333.

Heard before Hon. W. W. Harals'on. Action by D. E. Barclay against the Southern Railway Company for damages for injury to goods. Judgment for defendant and plaintiff appeals. Under the complaint as amended and the evidence, the court was in error in giving the affirmative charge for the defendant, and in refusing a like charge for the plaintiff. — Barclay v. So. By., 1 Ala. App. 348; 1 Words & Phrases, 611; Wood’s case, 66 Ala. 167; Tallassee Falls Mfg. Co. v. Wes.

Appead from Jefferson Circuit Court. Heard before Hon. E. C. Crowe. Action by Emma Dement against tbe Union Painless Dentists, a partnership, for damages for extracting a tooth. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Sapfold Bbrney. Trover and detinue by the Brunswick-Balke-Col'lender Company against Frank Peters. Judgment for plaintiff and defendant appeals.

Heard before Hon. Bernard Harwood. Action by S. W. Hankins against J. M. Black for damages for backing water over his lands and crops. Judgment for plaintiff and defendant appeals. Where plaintiff takes issue on an immaterial plea, the defendant is entitled to a verdict on the plea when it was established by the evidence. — Gerald v. Tunstall, 109 Ala. 567; L. & N. v. Brinlcerhoff, 119 Ala. 606; Agnew v. Walden, 84 Ala. 502; Williams v. Mc-Kissach, 125 Ala.

Heard before Hon. Thomas W. Wert. Action by S. E. Stewart & Bros, against Harris, Cortner & Company, for damages for the conversion of certain cotton alleged to have been mortgaged to plaintiff for advances to make a crop. Judgment for defendant and plaintiff appeals. Counts 1 and 2 are in Code form, and therefore, sufficient. The others were in Code form, as near as may be and were sufficient.

Heard before Hon. S. L. Brewer. Trover by S. N. Porch against E. A. Lewis and others for the conversion of a bale of cotton claimed by plaintiff under a mortgage executed to him by Lewis, and alleged to have been sold by Lewis to the other named defendants. Judgment for defendants and plaintiff appeals.

Heard, before Hon. W. B. Oliver, Special Judge. Trover by Theodore Plummer against L. B. Hardison and others. Judgment for defendants and plaintiff appeals. The court erred in giving the charge requested by the defendant, as it was not shown that the statute of limitations had run against all the defendants. As to what constitutes the conversion see Trueman v. S curlock, 27 Ala. 407; Bolling v. Kirby, 90 Ala. 221.

Heard before Hon. T. L. Sowell. Action by Shannon & Co. against J. E. Kilgore .& Son for conversion.

Heard before Hon. H. A. Pearce. Trover by tbe Hotlian Mule Company against G-. W. Pilcher. Judgment for plaintiff, and defendant appeals. The complaint declared for tbe conversion, of one mouse colored mare -mule about twelve years old, and tbe mortgage referred to was given by one Moates to tbe Dothan Mule Company, and conveyed all tbe horses, cattle, mules and bogs, or other live stock owned by tbe maker.

Heard before Hon. S. L. Brewer. Action by T. J. Mann against John A. Darden and others for trespass and trover. Judgment for defendants, and plaintiff appeals. For former proceedings in this cause see Darden et al. v. Mann, 163 Ala. 297, 50 South. 1033, and Mann v. Darden et al., 171 Ala. 142, 54 South. 504.

Heard before Hon. W. P. Pearson. Action by Mary H. McCabe against the City of Montgomery and Sallie B. Janney, for injuries received from an obstruction in the street. Judgment for plaintiff against the city of Montgomery from which, the city appeals.

Heard before Hon. Marvin West, Special Judge. Action by Velma Hacelip by next friend against John E. Shelton, for malpractice. Judgment for plaintiff, and defendant appeals.

Heard before Hon. E. S. Lyman. Action by Baline Burnett against the Southern Railway Company for damages for an alleged assault upon him while a passenger. Judgment for plaintiff and defendant appeals. Counsel insist that under the case of City Del. Co. v. Henry, 139 Ala. 161, the demurrers should have been sustained to the complaint.

Heard before Hon. Mike Solute. Action by Y. M. Newberry against A. J. Bethune. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Thomas. W. Wert. Action by Joe Stephenson against the Louisville & Nashville Railroad Company, for damages for an alleged malicious prosecution. Judgment for plaintiff and defendant appeals. Evidence of the-guilt of the accused or any statement made by him going to prove probable cause is admissible. — 8 Enc. of' Evid. 396, 398; 26 Cyc. 93 and 96. The court erred in. giving charge B requested by plaintiff. — Cooley on.

Heard before Hon. E. J. Garrison. Action by C. L. Steed against W. D. Staples for damages for injury to a horse, causing its death. Judgment for plaintiff, and defendant appeals. For a statement of facts and the pleadings in the case, see former appeal in 167 Ala. 241, 52 South. 646, Ann. Cas. 1912A, 480.

Heard before Hon. J. C. B. Gwin. ■Action by P. H. Murphy against the Bessemer Water Works for damages for cutting off his ' water supply. Judgment for plaintiff and defendant - appeals. Demurrers should have been sustained to the 1st count of the complaint. — City Council v. Halsey, 40 South. 665; Lovejoy v. Bessemer W. Whs., 41 South. 76; Birm. W. Whs. Co. v. Vinter, 51 South. 356; Same v. Ferguson, 51 South. 150.

- Heard before Hon. E. C. Crowe. Action by L. L. Stephenson and another against M. W. Parsons, constable, and the sureties on his bond for damages for returning a replevy bond forfeited. Judgment for defendants and plaintiffs appeal. Appellant complains of the sustaining of demurrers to the original counts of his complaint and cite authorities in support of his contention, but in view of the opinion it is not deemed necessary to here set them out.

Heard before Hon. J. W. Mabry. Action by T. U. Jones against the Louisville & Nashville Railroad Company for breach of contract to transport live stock. Judgment for plaintiff and defendant appeals. The special contract alleged is violative of section 5540, Code 1907, and the Federal Statutes covering that subject, and hence cannot be made the basis of a claim for damages. — Chicago & Alton Ry. Co. v. Kirby, U. S. Sup. Ct. July 1, 1912; 3 Fed. St. Ann. 816.

Heard before Hon. W. W. Pearson. Action by-tlie Monogram Hardwood Company against the Louisville & Nashville Railroad Company, for damages for failure to deliver certain freight, and for a conversion. Judgment for defendant and plaintiff appeals. The only question to be determined on this appeal under the agreed statement of facts is whether the shipment should be classified as logs as contended by the plaintiff, or as cord-wood as contended by defendant.

Chilton. Circuit Court. Heard before Hon. W. W. Pearson. Action by Thomas B. Minor against the Mobile & Ohio Railroad Company, for damages for injury to stock. Judgment for plaintiff and defendant appeals. In its original brief, appellant discusses the errors assigned with citation of authority, but in view of the opinion, it is not deemed necessary to here set them- out.

Heard before Hon. C. W. Ferguson. Action by J. T. Walsh against the Birmingham, Railway, Light & Power Company for damages for assault and battery and ejection. Judgment for plaintiff, and defendant appeals. The complaint ¿lieges the relation of passenger and carrier to have existed between plaintiff and defendant, and in some counts alleges a wrongful ejection, and in other counts an assault and battery committed by the agent of defendant.

Heard before Hon. E. C. Crowe. Action by Walter Brice against the Birmingham Coal & Iron Company, for damages. Judgment for plaintiff and defendant appeals.

Heard before Hon. J. T. Stokely. Action by T. Jones Abbott against the Birmingham Railway, Light & Power Company for trespass. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. H. Alston. Action by Mildred Elmit, pro ami, against the Birmingham Railway Light & Power Company, for damages, for being carried beyond her destination. Judgment for plaintiff and defendant appeals. For a summary of the pleadings not set out in the opinion, see the companion case of Birmingham Railway, Light & Poioer Company v. Hoioard Elmit, infra, 60 South. 982.

Heard before Hon. A. H. Alston. Action by Howard Elmit, by next friend, against the Birmingham Railway, Light & Power Company, for damages sustained while a passenger. Judgment for plaintiff, ' and defendant appeals. The following is the complaint: “Count 1.

Heard before Hou. E. C. Crowe. Action by Jobnnie Taylor against the Birmingham Bailway, Light & Power Company, for damages for injury to him as a passenger. Judgment for plaintiff and defendant appeals. The court should have sustained the demurrers to count 2. — Gity Del. Go. v. Henry, 139 Ala. 161. The evidence did not justify a submission of the question of punitive damages to the jury.- — Parker’s Case, 156 Ala. 253; Merrill v. Sheffield Go., 169 Ala. 252.

Heard before Hon. H. A. Sharpe. Action by Mrs. Lulu Ginzler against the city oE Birmingham for damages to realty. From a judgment granting defendant a new trial, plaintiff appeals.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. Gaston Gunter.</p>