Volume 7 — Alabama Appellate Reports

Habeas Corpus. Aiteae from Conecuh Probate Court. Heard before I-Ion. F. J. Dean. Application of Martin Carter to be allowed bail. From a decree granting bail and fixing the amount, the .state appeals. No brief reached the Beporter. The transcript shows no exceptions reserved to any action or ruling of the court- below or to the judgment, and hence, there is nothing presented for review. — Hurd. v. City of Troy, 54 South. 495.

Murder. Appeal from Montgomery City Court. Heard before Hon. ARM stead Brown. Lewis Jamison was convicted of manslaughter and he appeals. Counsel •discuss the errors assigned, but without citation of authority.

Murder. Appeal from Walker Law and Equity Court. Heard before Hon. T. L. Sowell. John Swain was convicted of murder in tbe second degree and be appeals. Counsel discuss tbe case on its merits, but in view of tbe opinion, it is not deemed necessary to bere set it out. On tbe question of tbe time of taking tbe appeal, and of tbe action of the court in dismissing tbe same, counsel cite sections 2870, 6255, 3019, Code 1907; Powell v. The State, 59 South. 328.

Murder. Appeal from Jefferson Criminal Court. Heard before Hon. S. E. Greene. Eldridge Parker was convicted of manslaughter in the second degree and he appeals. Counsel discuss the action of the court in excusing certain jurors on account of alleged physical infirmities, and their motion to quash the venire on account of such excuses, but without citation of authority.

Murder. Appeal from DeKalb Circuit Court. Heard before Hon. W. W. Haralson. John Keef was convicted of manslaughter in the first degree and he appeals. Charge 2 given for the state was error for failing to require that the false testimony should be willfully false. Charg'd 3 was faulty for the same reason. — Prater v. State, 107 Ala. 28; Gillespie v. Hester, 160 Ala. 449.

Murder. Appeal from Pike Circuit Court. Heard before Hon. I-I. A. Peaeoe. Mark Powell was convicted of murder in the second degree and be appeals. There was no sufficient order fixing the number of jurors before the drawing of said jury. — Section 82, Acts 1909, p. 318; Morris v. The State, 146 Ala. 86; Allen v. The State, 145 Ala. 11; Brown v. State, 115 Ala. 8; Washington v. State, 81 Ala. 37.

Murder. Appeal from Anniston City Court. Heard before Hon. Th'omas W. Coleman, Jit. Judge Brown was convicted of manslaughter in the first degree, and lie appeals.

Murder. Appeal from Henry Circuit Court. Heard before Hon. M. Sollie. Isaac Gibbs was convicted of murder in tbe second degree and be appeals. It must affirmatively appear that the judge drew the jury in open court. — 145 Ala. 11; 160 Alá. 6; 115 Ala. 1. Counsel discusses other assignments of error, but without citation of authority.

Murder. Appeal from Elmore Circuit Court. Heard before Hon. W. W. Pearson. Bud Redden was .convicted of murder in the second degree and he appeals. The trial judge erred in his definition of malice. — rGribbs v. State, 86 Ala. 613; Patterson v; State, 146 Ala. 39; s. o. 156 Ala. 67; 5 Words & Phrases, 4298-4300'. The remarks of the court relative to the proof of threats was error. — Griffin v. State, 90 Ala. 600; 127 Ala. 33.

Murder. Appeal from Pike Circuit Court. Heard before Hon. H. A. Pearce. Holland and Koberfc Spivey were convicted of murder in tlie second degree, and appeal. After the evidence was in, the defendant requested the court to permit the jury, under the escort of the sheiiff, to go to the scene of the difficulty and view the situation, which request was declined.

Murder. Appeal from Lamar Circuit Court. Heard before Hon.’ Bernard Harwood. Morris Livingston was convicted of murder in tbe second degree, and be appeals. For opinion of tbe Supreme Court on several questions involved see Ex parte State, 61 South. 58.

Murder. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. George R. Guffey was convicted of manslaughter, and appeals. On cross-examination of witness Rice he was asked: “Do you know Avhose pistol it was?” Having reference to the pistol handed witness by the sheriff, the witness having testified that he did not see it at the time of the difficulty; that it may have been two or three days af-terwards when he saw it.

Murder. Appeal from Russell Circuit Court. Heard before- Hon. M. Sollie. Ed Smith was convicted of manslaughter, and appeals. The entire charge of the court is set out, and the exception is as follows: “To that portion thereof which submitted to the jury the inquiry of whether or not Samantha Givens entered the difficulty and fight and aided and abetted her husband, Jake Givens, therein.

Assault and Battery. Appeal from Coosa Circuit Court. Heard before Hon. Hugh B. Merrill. Willis Marberry and others were convicted of assault and battery and they appeal. The jurisdiction of the court at Goodwater is territorially limited to precincts 3, 4, 5 and 12. — Acts 1907, p. 216. Hence, there was no sufficient proof of venue. — Pearson v. Tlie State, 59 South. 526; Thomplcins v. The State, 1 Ala. App. 258.

Assault and Battery, Appeal from Montgomery City Court. Heard before Hon. Armstead Brown. A. Axelrod, etc., was convicted of assault ivith a weapon, and lie appeals.

Assault and Battery. Appeal from Pike County Law Court, Heard before Hon. T. L. Borum. Tom Wilson was convicted of assault and battery, and he appeals. The following are the charges referred to:; “(1) The burden is- upon the state to prove the charge it makes against the plaintiff; so, in this case, the state charges that defendant assaulted and beat Bob Harvey with a knife.

Assault and Battery. Appeal from Pike County Law Court. Heard before Hon. T. L. Borum. Bertha White was convicted of an assault and battery with a weapon, and she appeals. The plea in abatement set up that defendant is not known and called Bertha White, and that that was not her name, but that she was known and called Bert White, and that was her real name.

Assault unth Intent to Murder. Appeal from Sbelby County Court. Heard before Hon. E. S. Lyman. Oreóla Chestnut was convicted of assault with intent to murder, and she appeals. The assault is alleged to have been made on Alleen Denson by shooting at her, and the witness Denson was permitted to state that the shot missed her, but hit her daughter.

Shooting■ Into Dwelling House. Appeal from Pike County Law Court. Heard before Hon. T. L. Borum. George Sellers was convicted of shooting into a dwelling house and he appeals. Counsel discusses the demurrers to the indictment with the insistence that they should have been sustained, but cites ho authority in support thereof.

Violating Prohibition Lmo. Appeal from Montgomery City Court. Heard, before Hon. Armstead Brown. R. L. Bartlett was convicted of vagrancy in unlawfully selling intoxicating liquors, and be appeals. No brief reached the Reporter. It is competent to introduce evidence of the sale of liquor.— Moss v. The State, 58 South. 62. The evidence of conviction of former offense was admissible in rebuttal.— Pugh v. The State, 59 South. 936; Ingram v. The State, 36 Ala. 247.

Aiding an Escape. Appeal from Shelby County Court. Heard before- I-Ton. E. S. Lyman. Julius Johnson appeals from a conviction for aiding a felon to escape.

Perjury. Appeal from Montgomery City Court. Heard before Hon. Armstead Br'own. Otto T. Barr was convicted of perjury and be appeals. The variance was fatal and was properly raised. — Jacobs v. The State, 61 Ala. 448; Walker v. The State, 96 Ala. 58; Monkers v. The State, 87 Ala. 94; Merlett v. The State, 100 Ala. 42. The court erred in its oral charge.-^-Peterson v. The State, 74 Ala. 84.

Embezzlement. Appeal from Montgomery City Court. Heard before Hon. Armstead Brown. Otto T. Barr was convicted of embezzlement, and he appeals. The embezzlement charged was that of funds of the White Company, a corporation organized under the laws of the state of Ohio, which came into defendant’s possession, as agent of said company.

False Pretense. Appeal from Covington Circuit Court. Heard before 1-Ion. H. A. Pearce. Earley Feagin was convicted of obtaining money and property bv false pretenses, and be appeals.

Permitting Animals to Run at Large. Appeal from Lawrence County Court. Heard before Hon. John P. Kumpe. John Williams ivas convicted of permitting animals to run at large in a stock law district, and he appeals.

Violating Prohibition Law. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Henry Simmons was convicted of violating the prohibition law, and he appeals.

Violating Prohibition Law. Appeal from Houston Circuit Court. Heard before Hon. H. A. Pearce. Mack Shivers was convicted of violating the prohibition law, and he appeals.

Violating Prohibition Law. Appeal from Franklin Circuit Court. Heard before Hon. C. P. Almon. Bob Hammock was convicted of violating tbe prohibition law and he appeals. A defendant is entitled to have the time of an offense fixed as near as a witness can do so, and hence, the court erred in declining to permit the defendant to ask witness if he was positive it was in February. — Stevens v. The State, 1 Ala. App. 164.

Violating Prohibition Laity. Appeal from Henry Circuit Court. Heard before Hon. M. Soluto. Sam Wilks was convicted of violating tbe prohibition law, and he appeals. Charge 2, as shown by the bill of exceptions, is as follows: “If there is a reasonable supposition of defendant’s innocence, they must acquit him.” The court erred in refusing-charge 2. — Johnson v. The State, 102 Ala. 1; Balclmn v. The State, 111 Ala. 11; 25 Wash. 416.

Violating Prohibition Law. Appeal from Bullock Circuit Court. Heard before Hou. M. Sollie. Jolm Henry Snead was convicted of violating the prohibition law, and he appeals. Counsel discusses and analyzes the evidence and insists that defendant was entitled to the affirmative charge, but cites no authorities in support of his contention.

Violating Prohibition Load. Appeal from Perry Circuit Court. Heard before Hon. B. M. Miller. George Doss ivas convicted of violating the prohibition laiv, and appeals.

Violating Prohibition Law. Appeal from Geneva County Court. Heard before Hon. John A. Campbell. Bachael Davis was convicted of violating the prohibition .law, and appeals.

Violating Prohibition Law. Arpead from Elmore Circuit Court. Heard before Hon. W. W. Pearson. George Williams ivas convicted of violating the prohibition law, and he appeals.

Violating Prohibition Law. Appeal from Morgan Law and Equity Court. Heard before Hon. Thomas W. Wert. Joe Wilder was convicted of violating the prohibition law and he appeals. For answer of Supreme Court to questions propounded, see 60 South. 928.

Burglary. Appeal from Colbert Circuit Court. Heard before Hon. C. P. Alm'on. Willie Gunn was convicted of burglary, and be appeals. Idle evidence showed that the bouse of Mr. Walker ivas entered by way of a window, and a lady’s gold watcb and a'razor were found missing.

Larceny. Appeal from Colbert Circuit Court. Heard before Hon. C. P. Almon. Tom Wilson, alias Pepper Dick, was convicted of ■larceny, and appeals.

Larceny. Appeal from Cleburne Circuit Court. Heard before Hon. A. I-I. Alston. Oliver Farlow and another were convicted of grand larceny, and they appeal. The bill of exceptions recites that, after the question was asked and answered by the witness Arbie Taylor, the defendant objected. The court overruled the objection, and the defendant excepted.

Burglary. Appeal from Bullock Circuit Court. Heard before Hon. M. Sollie. George Thompkins was convicted of burglary and he appeals. The evidence of the accomplice was not so corroborated as to authorize a finding of defendant guilty, and hence, the affirmative charge should have been given. — Section 1897, Code 1907; Lindsey v. The State, 54 S'outh. 516.

Larceny. Appeal from Hale County Law and Equity Court. Heard before Hon. Charles E. Waller. Charley Jeffries ivas convicted of the larceny of a cow and he appeals. The evidence does not sufficiently show the corpus delicti, and hence, the charge requested by defendant should have been given. • — 8 Enc. of Evid. 99; Sanders v. The State, 167 Ala. 85.

Larceny. Appeal from Marshall Circuit Court. Heard before I-Ion. W. W. Haralson. Will West was convicted of larceny and be appeals. Tbe record fails to show a proper submission of tbe cause. — 1 Freeman on Judgments, sec. 50-D. Tbe witness could only express an opinion that tbe bides be got were tbe bides taken from tbe depot. — Walker v. The State, 58 Ala. 398; Mitchell v. The State, 94 Ala. 68.

Violating Automobile Lmo. Appeal, from Montgomery City Court. Heard before Hon. Armstead Brown. Robert H. Bozeman was convicted of violating the automobile law in that he operated a motor vehicle upon the public highway without license, and he appeals. Section 7 of the Motor Vehicle Law is in direct conflict with section 221, Constitution 1901. Counsel quote from the proceedings of the Constitutional Convention to show the construction to be given that section.

Resisting Officer. Appeal from. Mobile City Court. Heard before Hon. O. J. Semmes. John Finley ivas convicted of resisting an officer,- and be appeals. Counsel discuss errors relative to tbe admission and exclusion of evidence, but without citation of authority. Counsel insist that there was no error in the record, and that the cause should be affirmed. They cite no authority.

Arson. Appeal from Colbert Circuit Court. Heard before Hon. C. P. Almon. Will Cooley was convicted of arson and he appeals. Motive must be proven as a fact and not as a mere hearsay through the declaration of others. — Faire v. The State, 58 Ala. 74; Stone v. The State, 105 Ala. 60; Sanders v. The State, 105 Ala. 5; s. o. Ill Ala. 26.

Permitting Minor to Loiter About Poolroom. Appeal from Chilton Circuit Court. Heard before Hon. W. W. Pearson. Newton Riggins was convicted of permitting a minor to loiter about a poolroom, and,he appeals. The evidence did not warrant a conviction under section 6292, Code 1907, and the court erred in refusing to direct a verdict for defendant.

Carrying Concealed Pistol. Appeal from Marshall Circuit Court. Heard before Hou. W. W. Haralson. Cooper McNaron was convicted of carrying a concealed pistol and he appeals. The court erred in permitting it to be shown that certain offensive language was used by the defendant on the occasion when it is alleged he had a pistol concealed. — 139 Ala. 144.

Removmg or Destroying Boundary Marks. Appeal from Morgan Law and Equity Court. Heard before Hon. Thomas W. Wert. D. P. Robinson was convicted of crime, and lie ap: peals. Tbe facts sufficiently appear from the opinion.

Failure to Work the Road. Appeal, from Baldwin Circuit Court. Heard before Hon. A. E. Gamble. Walter Jones was convicted of failing to work on the public roads after notice, and lie appeals. It appears from the evidence that, at tbe time Jones was warned to work tlie road, be ivas over 18 years old. It was further attempted to be shown by defendant that Walter Jones’ father forbade him to go and work upon the road after the warning, and for that reason he declined to do so.

Violating Revenue Law. Appeal from Barbour Circuit Court. Heard before Hon. A. H. Alston. G. A. Miller ivas convicted of violating the revenue law and he appeals. The defendant was engaged in interstate business, and was not subject. to the provisions of subdivision 58, section 2361, Code 1907, and bence, tbe demurrers to the indictment should have been sustained. — Earns v. The State, 50 Ala. 127; Davis v. The State, 52 Ala. 357.

Assumpsit. Appear from Clarke Circuit Court. Heard before Hon. John T. Lackxand. Assumpsit by M. J. Elkan & Company against E. P. Forwood, revived on the death of defendant in the name of C. A. Coats, sheriff, as administrator. From a judgment for plaintiff, defendant appeals. The appeal is on the record from a judgment by default.

Assumpsit. Appeal from Barbour Circuit Court. Heard before Hon. A. H. Alst'on. Action by the town of Clayton against the sureties on the bond of the town marshal to recover taxes and fines alleged to have been collected by the marshal and not paid over. Demurrers were sustained to the complaint on the theory that no ordinances had been provided creating the office of marshal, and that in truth and in fact there was no such officer in the town.

Assumpsit. Appeal from Hale Law and Equity Court. Heard before Hon. Charles B. Waller. Assumpsit by tbe City National Bank of Selma against EL T. Bledsoe. Judgment for plaintiff, and defendant appeals. Tbe note sued on is as follows: “$250, Selma, Ala., June 8, 1910. For value received I promise to pay on or before tbe 15tb day of December, 1910, to tbe Siegel Automobile Company, Selma, Ala., or order, the sum of $250, with interest until paid, at 8 per cent, from date.

Assumpsit. Appeal from Anniston City Court. Heard before Hon. Thomas W. Coleman, Je. Assumpsit by the Jackson 'Woolen Mills against H. C. Henderson. Judgment for plaintiff by default and plaintiff appeals. While courts take judicial knoAvledge of officers commissioned by the state, they do not take judicial knowledge of deputy sheriffs. — Russell v. Huntsville Go., 13T Ala. 631; Ryan v. Young, 147 Ala. 669; Land v. Patterson, Minor 14; 7 Enc. of Evi. 980.

Assumpsit. Appeal from Baldwin Circuit Court. Heard before Hon. A. E. Gamble. Assumpsit by Cobb & Marston against S. F. McKenzie. From a judgment for plaintiff awarding insufficient relief, plaintiff appeals. The Avord “sold” includes a contract or obligation to sell. — 7 Words & Phrases, '6540; 20 Am. Dec. 670. A vendee in possession under a contract of sale, is the owner of land.— Oom I. Go. v. Byals, 169 Ala. 517; Loventhal v. Home I. Go., 112 Ala. 108.

Assumpsit. Appeal from Jefferson Circuit Court. Heard before Hon. E. C. Ceowe. Action by L. Jaffe against the Alabama Fidelity & Deposit Company on a garnishment, bond. Judgment for defendant and piaintiff appeals. The remedy provided by section 4313, Code 1907, is not exclusive, and a common law action may be maintained on the bond. — Carpenter et al. v. Miller, 2 Ala. App. 373.

A ttachment. Appeal from Colbert Circuit Court. Heard, before Hon. C. P. Almon. Attachment by S. N. Sherman against John Swope for the recovery of certain property alleged to have been taken. Judgment for plaintiff by default on writ of inquiry and defendant appeals. The counsel fees and court costs incurred in another litigation are not recoverable in this action.— 13 Cyc. 170; 4 Pac. 994; 13 Barb. 663; Hale on Damages, p. 87, note 194.

Assumpsit. Appeal from Jefferson Circuit Court. Heard before Hon. H. A. Coleman. Action by the Jebeles & Colias Confectionery Company against T. W. O’Byrne. Judgment for defendant, and plaintiff appeals.

Breach of Contract. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Action by J. R,. Thomas against D. P. Bohanan and another, for breach of contract, revived in the name of Osceola Darden, as administrator of said Thomas. Judgment for plaintiff and defendants appeal.

Assumpsit. Appeal from Walker Circuit Court. Heard before Hon. J. J. Curtis. Assumpsit by Goodall Brown & Co. against J. A. Key. Judgment for plaintiff and defendant appeals. The verified account was not applicable to two of the counts, and hence, the court erred in admitting it in evidence. — Comer v. Way, 107 Ala. 302; Moore v. Holloway, 138 Ala. 448. The court improperly allowed the amendment.' — Steiner Bros. v. Stewart, 134 Ala. 568.

Assumpsit. Appeal from Mobile Law and Equity Court. Heard before Hon. Saffold- Berney. Assumpsit by the Roche Undertaking Company against P. H. DeBardelaben, as administrator. Judgment for. defendant and plaintiff appeals.

Assumpsit. Appeal from Jefferson Circuit Court. Heard before Hon. John C. Pugh. Assumpsit by R. H. Wright against J. M. Dupuy. From judgment for plaintiff, defendant appeals. The action was on a promissory note. The plea referred to was that the suit was brought out of the precinct of plaintiff’s residence, and that the debt was not created, and the cause of action did not arise in the precinct where the court was located.

Assumpsit. Appeal from Marion Circuit Court. Heard before I-Ion. C. P. Almon. Action by the W. T. Kawleigh Medical Company against Emit I. Wilson and others for breach of contract-. From a judgment for defendants, plaintiff appeals.

Assumpsit. Appeal, from Marshall Circuit Court. Heard before Hob. W. W. Haralson. Action by Isliam A. Wright against the Woodmen of the World on a benefit certificate. ' Judgment for plaintiff, and defendant appeals. Affirmed.

Assumpsit. Appeal from Birmingham City Court.' Heard before Hon. C. C. Nesmith. Assumpsit by J. W. Donnelly against E. W. House, and others. Judgment for plaintiff and defendants appeal.

Assumpsit. Appeal from Winston Circuit Court. Heard before Hon. J. J. Curtis. Action by J. C. Cochran against Burdick Bros. From a judgment for defendants, plaintiff appeals.

Assumpsit. Appeal from Birmingham City Court. Heard before Hon. H. A. Sharpe. Action by John D. Hanby against the Oahaba Coal Company in assumpsit. Judgment for plaintiff, and defendant appeals.

Assumpsit. Appeal from Birmingham City Court. Heard before Hon. C. C. Nesmith. Action by the Bessemer National Bank against George B. Tarrant, Tax Collector, to recover taxes paid. From a judgment for plaintiff, defendant appeals.

Assuonpsit. Appeal from Coosa Circuit Court. Heard before Hon. S. L. Brbweír. Assumpsit by the American Sales Book Company against S. H. Pope and R. O. Richards, individually, and as partners. Judgment for defendants, and plaintiff appeals. The first count claims for balance due on goods, Avares, and merchandise sold. The second count claims for balance due for certain goods sold, naming them specifically.

A'ssimpsit. Appeal from Houston Circuit Court. Heard before Hon: H. A. Pearce. Assumpsit by the McCaskey Register Company against the Nix Drug Company. Judgment for defendant and plaintiff appeals. Parol evidence was not admissible to vary the terms of the contract. — Town of Brewton v. Glass, 116 Ala. 633; Barnard Mfg.

Assumpsit. Appeal from Pike Circuit Court. Heard before Hon. H. A. Pearce. Action by the Western Union Telegraph Company against the city of Troy, to recover a license tax paid under protest. Judgment for defendant and plaintiff appeals. The ordinance is unreasonable and therefore void. — Town of Marion v. Chandler, 6 Ala. 899; Ex parte Byrd, 84 Ala. 12; Hendrix v. The State, 142 Ala. 43; 26 Am. Rep. 642; 58' Am. Rep. 447;-72 Am. Dec. 89; 13 Am. St. Rep. 468; 24 Am.

Assumpsit. Appeal from Mobile Circuit Court. Heard before Hou. Samuel B. Bkowne. Action by N. B. Borden & Co. for breach of contract against the Vinegar Bend Lumber Company. Judgment for defendant, and plaintiff appeals.

Assumpsit. Appeal from Coffee Circuit Court. Heard before Hon. IT. A. Pearce. Assumpsit by tlie Federal Discount Company against J. S. Wooten. Judgment for plaintiff and defendant appeals. The court erred in permitting the acceptances to be admitted in evidence in view of the plea of non est factum. — Section 3967, Code 1907; Kirksey v; Kirksey, 41 Ala. 642; Bonner v. Young, 68 Ala. 35; Ledbetter v, Vinton, 1.08 Ala. 644; Ala.

Assumpsit. Appeal from Wilcox Circuit Court. Heard before Hon. B. M. Miller. Assumpsit by P. M. Creagh against Walter R. Alford. From a judgment for plaintiff defendant appeals. The letter without more, was not a contract, and hence, is not binding on defendant. — Martin v. Black, 21 Ala. 721; 7 A. & E. Enc. of Law, 126. The contract was not enforceable because violative of the statute of frauds. — Section 4289, Code 1907.

Assumpsit. Appeal from Mobile Law and Equity Court. Heard before Hon. Saffold Berney. Action by T. J. Gladwell against the Mobile Terminal & Railway Company, for breach of contract. Judgment for plaintiffs, and defendant appeals.

Assumpsit. Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Action by Neil Armstrong against the Order of Ca-lanthe. Judgment for plaintiff by default- and defendant appeals. Tbe judgment was by default and fails to show that the service was made upon a person authorized to receive it, or that the court ascertained that the person served was the proper person to receive service.

Assumpsit. Appeal from Mobile LaAv and. Equity Court, Heard before Hon. Saffold Beiiney. Assumpsit by George J. Clausen against Charles N. Davis. Judgment for plaintiff, and defendant appeals. ■ Uncommunicated motives or intentions of a witness are not admissible.— Smith v. The State, 145 Ala. 17; Richardson v. String-fellow, 100 Ala. 416; Ball v. Farley, 81 Ala. 288.

Assumpsit. Appeal from Birmingham City Court. Heard before Hon. John H. Miller. Assumpsit' by the McQuiddy Printing Company against Ben T. Head and others. Judgment for defendant, and plaintiffs appeal. There was no de facto corporation. — Snider Sons Go. v. Troy, 8 South. 658; Owensboro W. Go. v. Bliss, 31 South. 81; A. & M. Assn. v. A. G. L. I. Go., 70 Ala. 120.

Assumpsit. Appeal from Coosa Circuit Court. Heard, before 1-Ion. Hugh D. Merrill. Action by L. P. Nelson against David Rothschilds and others, for breach of a garnishment bond. Judgment for defendants on the pleading, and plaintiff appeals. The complaint is entirely sufficient and not subject to demurrer. — Dothard v. Shield, 69 Ala. 135; Sharp v. Hunter, 16 Ala. 765.

Assumpsit. Appeal from Coffee Circuit Court. Heard before Hon. J. N. Ham, Special Judge. Action by W. J. Moore begun by attachment against Wise & Williams, in Avhich the Planters’ Trading Company interposed as claimants. Judgment for plaintiff and claimants appeal.

Assumpsit. Appeal from Clay Circuit Court. Heard before Hon. Hugh D. Merrill. Action by Vassar L. Allen as trustee transferee of tbe effects of a bank, against A. C. Smith and another, individually and as former partners. Judgment for plaintiffs, and defendants appeal. The court gave effect to evidence to which it was not entitled, and rendered judgment on an account stated, which was not supported by the evidence. — 49 Conn. 36; 10 Neb. 54; 15 Am. Dec. 181; 34 Am.

Assumpsit. Appeal from Lamar Circuit Court. Heard before Hon. Bernard Harwood. Assumpsit by H. L. Plott against E. B. Foster. Judgment for plaintiff, and defendant appeals.

Breach of Contract. Appeal from Lee Law and Equity Court. Heard before Hon. John D. Denson, Special Judge. Action by A. B. McKinney against W. L. Carmack, for breach of warranty. From a judgment sustaining demurrer to his plea, defendant appeals. The court erred in sustaining demurrers to defendant’s plea. — Bishop on Contracts, sec. 784. By refusal to accept the horse offered, plaintiff waived whatever rights he had under the contract. — 9 Cye. 436.

Detinue. Appeal from Henry Circuit Court. Heard before Hon. P. A. McDaniel,, Special Judge. • Detinue by Mary W. Garner and others, against Hutto & Arnold. Judgment for plaintiffs, and defendants appeal.

Detmue. Appeal from Monroe Circuit Court. Heard before Hon. John T. Lackland. Detinue by W. J. Nettles against N. J. McMillan in which H. E. McMillan interyenes as claimant. Judgment for plaintiff, and intervenor appeals. The judgment is improper, in the first place, because the complaint or issue sets out no cause of action. — St. Glair County v. Smith, 112 Ala. 347; Pullen v. Schimpf, 109 Ala. 182.

Detinue, Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. Detinue by William H. Monk, Jr., against Jessie Case. Judgment for plaintiff, and defendant appeals. The pleas state a good defense to the action and the court was in error in sustaining demurrers thereto. — Ramsey r„ Smithy 35 South. 325; Lea v. Classen, 61 Ala. 312; Ware v. Jones, 61 Ala. 288; Hill v. Freeman, 73 Ala. 201; Addison on Contracts, 252; Bishop on Contracts, 458.

Search and Seizure Proceedings. Appeal from. LoAvndes Circuit Court. Heard before Hon. A. E. Gamble. Search and seizure proceedihgs for prohibited liquors instituted by the state on the relation of A. R. Wild and others against E. P. Coleman. Judgment for plaintiff, and defendant appeals. The warrant and affidavit were insufficient because general, covering more than one place to be searched. — Toole v. The State, 170 Ala, 41; Gheeh v. State ex rel. Metcalf, 57 South. 108.

Motion to Retax Costs. Appeal from Birmingham City Court. Heard before Hon. C. C. Nesmith. Motion to retax costs made by James A. Friddle and directed to Lewis Braun and others. From an order overruling the motion to retax, movant appeals. When costs are taxed contrary to law the party aggrieved may move the court for re-taxation setting forth the particulars wherein the costs have been erroneously taxed.- — - Code, sec. 3684.

Mandam us. Original petition in the Court of Appeals. Petition by J. J. Dew for mandamus directed to Hon. Bernard Harwood, judge of the 6th judicial circuit.

Failure to Satisfy Mortgage. Appeal from Walker Circuit Court. Heard before Hon. J. J. Curtís. Action by G. B. Frost against D. F. Pickett to recover tbe statutory penalty for failure to enter satisfaction of mortgage on tbe margin of tbe record. Judgment for plaintiff and defendant appeals. Tbe statute prescribes tbe penalty and must be strictly construed. — Groons v. Haamon, 59 Ala. 510; Jarett v. Mc-Cabe, 75 Ala. 325; Scott v. Fields, 75 Ala. 419.

Habeas Corpus. Appeal from Monroe Law and Equity Court. Heard before Hon. W. G-. MoOoevey, Judge. Petition by J. W. Brown and another for a writ of habeas corpus directed to C. C. Huxford. From a decree granting the writ, defendant appeals.

Malicious Prosecution. Appeal from Birmingham City Conrl. Heard before Hon. IT. A. Siiakpe. Action by M. W. Alexander against W. A. Brown. Judgment for plaintiff, and defendant appeals.

Malicious Prosecution and False Imprisonment. Appeal from Walker Circuit Court Heard before Hon. J. J. Curtis. Action by J. A. Devaney against tbe Sloss-Sbeffield Steel & Iron Company, for malicious prosecution and false imprisonment. Judgment for plaintiff, and defendant appeals.

<p>1. Parties; Amendment; Misnomer. — Where the action was begun against the King Land Company, a corporation, and the King Land & Improvement Company,. the party intended to be sued, was served with process, appeared and defended the case on its merits, it was proper to permit an amendment describing it as the King Land & Improvement Company, although there was in existence a corporation by the name of King Land Company.</p> <p>2. Evidence; Judicial Notice; Corporate Existence. — Where the record did not show that fact, the appellate courts cannot take judicial notice that there was a corporation known as the King Land Company, where the action was originally brought against that company, and was amended to designate defendant as the King Land & Improvement Company.</p> <p>3. Water and Water Courses; Surface Water; Pleading. — A count alleging that plaintiff! was in possession of certain described land, and that defendant wrongfully caused large quantities of water to overflow said land to plaintiff’s damage, and another alleging that defendant’s servant or agent wrongfully caused the water to overflow the land, and another alleging that defendant negligently caused it to overflow the land, was sufficient without specifying the particular acts or omissions complained of.</p> <p>4. Same. — In an action for causing surface water to overflow plaintiff’s land, an allegation that plaintiff was in possession of the land, was sufficient to show defendant’s duty not to wrongfully or negligently cause water to flow thereon; possession embracing the conception not only of a physical occupancy and control but of the right to occupy and control.</p> <p>5. Same; Drainage. — An owner of higher land may ditch and drain his land as he pleases so long as he does not thereby increase the burden on the adjoining land; he may not increase that burden by causing more water to flow on the lower land than it otherwise naturally would receive, through artificial means, although he may, under extraordinary circumstances, increase the burden at a particular point by concentrating the water into one channel, but must exercise such a right with a prudent regard for the welfare of the lower owner.</p> <p>6. Same; Jury Question. — Ordinarily it is a question for the jury to determine whether exceptional circumstances and conditions exist upon which to predicate an owner’s right to concentrate surface water into one channel, thus depositing it on adjoining land iu unusual volume, and with unusual rapidity, and whether such •conditions and circumstances are sufficient to give rise to sucia right, and whether defendant exercised such right, if such conditions and circumstances exist, with a prudent regard to the servient tenement and cause no more damage or injury than was reasonably necessary.</p> <p>7. Same; Evidence. — Where the action was by a lessee for damages for overflowing the lands with surface water, it was not competent to' ask him if he did not leave the place, and 'forfeit his contract because delinquent in his rents, since whatever .his:reasons for leaving were, they would not deprive him of his. right to recover damages sustained prior thereto.</p> <p>8. Same; Damages. — Where the action was for. causing surface waters to overflow plaintiff’s land, an allegation that he was put to great trouble and expense and inconvenience in his efforts to use the land for the purpose of raising a crop, did not justify a recovery for the value of fertilizers distributed over the land, and lost or rendered valueless by reason of the overflowed condition, such allegation referring only to those expenses incurred after the overflow as a proximate consequence thereof, and not to such as were previously incurred and rendered valueless by the overflow.</p> <p>9. Same. — It was proper to refuse an instruction to find for defendant if plaintiff, by the exercise of ordinary care and diligence, could have prevented any damage to his property from such overflow, for although plaintiff could not recover such damages as he could have prevented, by the exercise of such care and diligence, yet his failure to exercise, the same would not prevent the recovery of those damages which he could not have prevented.</p> <p>10. Damages; General; Special. — General damages are such as naturally and necessarily flow from the wrongful act, while special damages are such as naturally but not necessarily flow therefrom.</p> <p>11. Same; Pleading; Necessity. — Since a defendant is supposed to know the damages necessarily resulting from his wrongful act, general damages are recoverable, although not pleaded; special damages, however, must be claimed or pleaded that defendant may have proper notice thereof and an opportunity to meet the same by proof.</p> <p>12. Same; Special. — In an action for causing surface water to overflow plaintiff’s farm land, the value of fertilizer distributed over the land and lost or rendered valueless by the overflow constituted an item of special damages, and was required to be pleaded to- be recoverable.</p> <p>13. Charge of Court; Preventing Damages. — A charge asserting that if the jury could possibly see from the evidence that the plaintiff by the existence of ordinary care and diligence, could have prevented the damages sued for, was misleading, as it apparently assumed that plaintiff could have prevented damages, and required a verdict for defendant to be predicated not on a finding from the evidence that plaintiff could have prevented the damages, but on the ability of the jury to see from the evidence, and assumed the truthfulness of the fact that the plaintiff could have done so.</p> <p>14. Appeal and Error; Assignment; Joint. — Where an assignment of error contains more than one proposition, it is not sustained if one ruling was correct.</p> <p>15. Witnesses; -Examination. — It is not error to exclude a leading question upon objection interposed thereto.</p>

Damage from Defective Street. Appeal from Jefferson Circuit Court. Heard before Hon. John C. Pugh. Action by Lucy Sutton against the city of Bessemer for damages for injuries received from a defect in one of. the streets. . Judgment for defendant and plaintiff appeals.

Damages for Loss of Goods. Appeal from Lauderdale Circuit Court. Heard before Horn C. P..;Almon,' ■ Action:,by -Bessie Foster against the Southern -Railway Company for loss of baggage. Judgment for plaintiff, and,’defendant appeals. Merchandise or other valuables are not baggage although cárried in- trunks of - passengers. — 8 Hutchison ..on Carriers, secs. 1242-1249 of Ga. v. Joseph, 125 Ala.-818; 102 Am.. St Rep. 316; 148 U. S. 627.

Damage to Live Stock. Appeal.from Birmingham City Court. Heard before Hon. Charles A. Senn. Action by H. H. Shepherd against the Louisville & Nashville Kailroad Company. Judgment for plain tiff, and defendant appeals. The cómpláint contains three counts, alleging damages to certain cattle while being shipped by freight, owing' to the negligence of the defendant.

Destruction of Judgment Lien. Appeal from Geneva Circuit Court. Heard before Hon. H. A. Pearce. Action by Johnson & Lattimer against J. R. Clark and another. There was a judgment directed for de-' fendant, and from a judgment granting plaintiff a new trial, defendants appeal.

Damage for Injury .to Passenger. ; Appeal from' Birmingham City Court. Heard before Hon. Charles W.-Ferguson. Action-by R. 0. -Tate against the Birmingham Railway,. Light & Power -Company for damages sustained by him while a passenger. From a judgment for plaintiff, defendant appeals.

Damage for. Injury to Passenger. Appeal from Birmingham City Court. Heard before Hon. H. A. Speak®. Action by Virgie Arnold against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals.

Damage for Injury to Passenger. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Action by Alice Blackmon against the Nashville, Chattanooga & St. Lonis Railway, for damages for injury suffered while a passenger. Judgment for plaintiff and defendant appeals. The plaintiff was not entitled to punitive damages, and the court erred in refusing to so charge. — G. of G. v. Morgan, 161 Ala. 483; Cook v. So.

<p> Damages for Injury to Passenger. </p> <p>Appeal from Montgomery Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Action by M. T. Liles against the Montgomery Traction Company, for adamages for injuries sustained while a passenger. Judgment for plaintiff awarding insufficient damages and he appeals.</p> <p>The damages were inadequate, and the court should set them aside. — 13 Cyc. 135; 68 Miss. 336; 52 Ill. App. 346; 40 N, Y..551; 2 Ed. Smith, 349; 53 S. W. 897; 88 Hun. 109; 58 N. J. L. 426; 33 Atl. 950. That the verdict was inadequate, see the folloAving cases. — 49 South. 704; 53 South. 532; 55 South. 732 ; 55 South. 741; 54 South. 963; 52 South. 1025; 122 Mo. App. 529.</p> <p>The matter of assessment of damages where there is no exact pecuniary standard, is within the discretion of the jury, and their verdict will not be set aside merely because the court thinks them too large or too small. — Mosely v. Jamison, 8 South. 745; Nat. Sur. Go. v. Mabry, 139 Ala. 217; V. of (fa. v. White, 56 Ala. 574. Under the evidence and these authorities, the court will not disturb the verdict, but will affirm the case.</p>

Damage for Injury to Passenger. Appeal from Anniston City Court. Heard before Hon. Thomas W. Coleman, Jr. Action by J. N. Sanders against tbe Louisville & Nashville Railroad Company, for damages for injury consequent upon being carried beyond his destination. Judgment for plaintiff and defendant appeals. The damages assessed were excessive in view of the evidence in this case. — 0. of G. v. Stevenson, 3 Ala. App. 13; G. G. & S. Ry.

Injury to Passenger. Appear from Birmingham City Court. Heard before Hon. Charles W. Ferguson. Action by Cobb Poiincey against the Alabama Great Southern Railroad Company, for damages for an alleged injury arising from abusive or insulting language used towards him by an employee of defendant. Judgment for plaintiff and defendant appeals.

<p> Damages for Improperly Transporting Corpse. </p> <p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. Robert N. Bell.</p> <p>Action by J. H. Still against the Birmingham Transfer & Traffic Company, for damages growing out of a breach of contract to transport the body of his child from one’ station to another. Judgment for plaintiff and defendant appeals.</p> <p>The fact that a'charge for services rendered was greatly in excess of the usual charge would not give the plaintiff the right to recover any part of the money he paid for such service. — Judge ■a. Wilkins, 19 Ala. 765; Maull v. Vaughan, 45 Ala. 134; Wood v. Graft, 85 Ala. 260. Therefore, plaintiff was without right to recover damages for mental anguish, and the motion to strike such claim from the complaint should have been granted.- — Blount v. W. ü. T. Go., 106 Ala. 155; W. U. T. Go. v. Blocker, 138 Ala. 485; W. U. T. Go. v. Waters, 139 Ala. 652. There are no property rights in a dead body, and hence, defendant was not subject to an action of law as here attempted. — Bessemer L. <& I. Go. v. Jenkins, 111 Ala. 135; Long v. G. R. I. & P. Go., 82 Pac. 289; see also 74 S. W. 222; 114 N. W. 353; L. R. A. 475. Punitive damages could not be recovered. — Bir. W. W. Go. v. Ferguson, 51 S'outh. 150; Goins v. Wes. Ry., 68 Ga. 190; 75 Am. Dec. 628; 24 S. W. 1125; 25 Ark. 570; 26 Ill. App. 502; 46 S. W. 209; 13 Oyc. 113. The court erred in admitting the ordinance showing the charge fixed for the carriage of trunks and ordinary baggage from one point to the other.</p> <p>Even if the motion to strike was well grounded, its refusal does not constitute reversible error. — G. of Ga. v. McNabb, 150 Ala. 332; So. Ry. v. Golemmv, 153 Ala. 266. The question of right of recovery of damages for mental anguish in the case here presented has been settled against appellant’s contention. — W. U. T. Go. v. Merrill, 144 Ala. 618; Same v. Krichbaum, 145 Ala. 409; Same v. Long, 148 Ala. 202; Same v. Westmoreland, 150 Ala. 654; Postal T. Go. v. Beall, 159 Ala. 249. There are certain rights attaching to a dead body which the law will protect, such as the- right to care for it, watch over it and bury it. — 2 Black. 429; 4 Id. 235; 3 A. & E. Enc. of Law, 51; 149 S. W. 849; 2 Den. O. C. 325; 8 A. & E. Enc. of Law, 839; 12 L. R. A. (N. .S.) 534. Under these authorities plaintiff: was entitled to damages for mental suffering. — W. ü. T. Go. v. Long, supra; W. 17. T. Go. v. McMorris, 48 South. 350; Same v. Growley, 48 South. 381. Punitive damages were allowable as the evidence supported a finding of wanton or willful neglect of duty.- — W. U. T. Go. v. Grotoley, supra; Same v. Stokes, 54 South. 181; Same v. Seed, 115 Ala. 674; Same v. Cunningham, 99 Ala. 314. It was incumbent on plaintiff to lay all his damages in one action.- — Bir. So. v. Lintner, 141 Ala. 428; B. B., L. & P. Go. v. Norris, 2 Ala. App. 618, and the telegraph cases cited above.</p>

Damage to Realty. Appeal from Birmingham City Court. Heard before Hon. William M. Walker. Action by diaries L. Long against tbe Birmingham Railway, Light & Power Company for damages for excavating. Judgment for plaintiff, and defendant appeals.

Damage to Pedestrian. Appeal from Jefferson Circuit Court. Heard before Hon. E. C. Crowe. Action by C. H. Norton against the Birmingham Railway,'Light & Power Company for damages for injuries received in a crossing accident. Judgment for plaintiff, and defendant appeals.

Damages for Killing Dog. Appeal from Tuscaloosa County Court. Heard before Hon. D. W. McQueen, Special Judge. Action by A. N. Taylor against the Alabama Great Southern Railway Company, for damages for killing dog.. Judgment for plaintiff and defendant appeals.

Injury to Servant. Appeal from Birmingham City Court. Heard before Hon. William M. Walker. Action by Robert AYhittaker against the Sloss-Shef-field Steel & Iron Company. Judgment for plaintiff, and defendant appeals.

Injury to Licensee. Appeal from Montgomery City Court. Heard before lion. Gaston Gunter. Action by W. L. Mayson against the Virginia-Carolina Chemical Company for damages for injury suffered while on their premises by invitation. Judgment for plaintiff and defendant appeals. The 2nd count was fatally defective in that no causal connection was shown between the negligence alleged and the injury stated.

Damage for Automobile Collision. Appeal from Jefferson Circuit Court. Heard before Hon. Ti-iomas W. Wert. Action by J. F. Lewis against E. H. Colley, for damages sustained in an automobile collision. Judgment for plaintiff and defendant appeals. The statement of Joseph made to plaintiff was inadmissible to prove the relationship of principal or agent, or master and servant. — L. L. Lumber Co. v. Ohatchie L. Go., Ill Ala. 453; Gambil v. Fuqua, 148 Ala. 448.

Damages for Furnishing Tainted Food. Appeal from Birmingham City Court. Heard before Hon. H. A. Shakpe. Action by Eugene N. West against Charles D. Pan-taze. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion. The following charges were given at the instance of the plaintiff: “(1) If any member of the jury has business or other relations with the defendant, then that juror has no right to be biased by such relations.

Trover and Conversion. Appeal, from Montgomery City Court. Heard before Hon. Gaston Gunter. Trover and conversion by J. A. Hines as commander of a company of the National Guard of the state, against the Crescent News & Hotel Company, for a failure to deliver certain rifles delivered to its under a contract of bailment. Judgment for plaintiff and defendant appeals.

Trover and Conversion. Appeal from Walker Circuit Court. Heard before Hou. J. J. Curtis. Trespass and trover by Sallie E. Windham against John T. Banks and others. Judgment for plaintiff and defendant appeals. Where time of conversion is alleged in an action of trover it must be proven as alleged. — Williams v. Mc-Kissack, 27 South. 922. A mere right to charge property with a lien will not support an action of trover.— Corbett v. Reynolds, 68 Ala. 378; 5 Mayf. 928.

Trover and Conversion. Appeal from Bibb Circuit Court. I-Iearcl before Hou. B. M. Miller. Trover by W. A. Thomas against E. M. Stamps for tlie conversion of a half interest in a lot of blacksmith tools. Judgment for plaintiff and defendant appeals. The court erred in sustaining demurrers to the special pleas. — Cotton u. TYard, 45 Ala. 359; Sec. 5331, Code 1907.

Trover and Conversion. Appeal from Morgan Circuit Court. Heard before Hon. Tennis Tidwell, Special Judge. Action by Mattie L. Young against John L. Brock and others for conversion of certain drugs, etc. Judgment for plaintiff, and defendants appeal. For former facts and rulings in this case, see 147 Ala. 660, 41 South. 954, and 164 Ala. 288, 51 South. .315.

Failure to Correctly Deliver Message. Appeal from Coosa Circuit Court. Heard before Hon. S. L. Brewer. Action by tbe Farmers’ & Merchants’ Bank against tlie Western Union Telegraph Company, for an erroneous transmission of a message. Judgment for plaintiffs, and defendant appeals.

Damage for Erroneous Transmission of Message. Appeal from Geneva Circuit Court. Heard before Hon. H. A. Pearce. Action by tbe Jackson Lumber Company against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals.

Damages for Failure to Deliver Message. Appeal fvom Tuscaloosa County Court. Heard before Hon. H. B. Foster. Action by Janie Sledge against tbe Western Union Telegraph Company for damages for failure to deliver telegram promptly. Judgment for plaintiff, and defendant appeals.