Volume 9 — Alabama Appellate Reports

Samuel It. Browne. Henry Tliomas was convicted in the inferior criminal court upon a plea of guilty, and judgment entered sentencing him to seven months hard labor. Notice of ap- ' peal was given which was denied by the inferior court on tlie ground that no appeal would lie from a plea of guilty.

Heard before Hon. O. J. Seaqies. Matthew Welsh was convicted of manslaughter in the first degree and he appeals. The court erred in admitting the statement of the wife detailed by the witness. — Liles v. State, 30 Ala. 21; 6 Enc' of Evi. 896; 83 Cal. 138. The defendant should have been permitted to show that after the difficulty deceased said that he was all at fault. — Oliver v. The State, 17 Ala. 587; Young v. State, 119 Ala. 16.

Heard before Hon. T. L. Sowell. Tom Hill was convicted of manslaughter, and appeals. The evidence tended to show that all the parties were drinking, or had been drinking, when they met where the difficulty occurred, and that there Avas considerable whisky among them. Evidence for defendant tends to show that he was very drunk when he .fired the shot.

Heard before Hon. D. W. Speake. Doyle Hooten was convicted of murder in tbe second degree, and be appeals.

Heard before Hon. O. J. Semmes. William J. Brown ivas convicted of manslaughter, and he appeals.

Heard before Hon. Armstead Brown. Bernard Tarver was convicted of assault with intent to murder, and he appeals.

Appeal, from Blount Circuit Court. Heard before Hon. J. E. Blackwood. John Doty ivas convicted of assault with intent to murder, and appeals.

Heard before Hon. S. E. Greene. Raymond Boswell was convicted of robbery, and lie appeals. The following is charge 1: “The court charges the jury that you cannot convict defendant in this case unless you believe from the evidence that they followed Lee Franklin, or went along with him to the place where the alleged robbery took place.” The court erred in not permitting it to be shown that defendant ivas discharged on preliminary hearing. — Jones on Evid. 1045.

Heard before Hon. T. L. Sdwell. George Hinktom ivas convicted of an assault and battery, and he appeals. The evidence introduced in support of the affidavit constituted a fatal variance with the allegations of the affidavit, entitling defendant to his discharge. — Wells v; State, 88 Ala. 239; Duvall v. State, 63 Ala. 12; Winter v. State, 90 Ala. 637. The affidavit was sufficient and not subject to misnomer. —Wellborn v. State, 154 Ala. 79.

Heard before Hod. M. Sodlie. Jim Ashmon was convicted of burglary and he appeals. Counsel insists that the affirmative charge should have been, given, first because no breaking was shown, and second because the evidence fails to disclose that there were any goods, wares, merchandise, clothing, things of value in the store, and only money is shown to have been missing.— Jeffries v: State, 67 South. 270) Sanders v. State. 167 Ala. 85.

Shooting Across Public Road. Appeal from Barbour Circuit Court. Heard before Hon. M. Sollie. Buster Holley was convicted of shooting across the public road, and be appeals. ' The shooting was not across the public road, but only across part of it, and hence, not violative of section 7727, Code 1907. — Scott’s Case, 156 Ala. 63. The evidence was not sufficient to show that the offense was committed within twelve months of the finding of the indictment.

Heard before Hon. O. J. Semmes. Chester A. Curtis ivas convicted of forgery and he appeals. Defendant files in this court a- voluminous document pointing out what he conceives to be errors of the trial court, but without citation of authority.

<p> Grand Larceny. </p> <p>1. Trial; Objection to Evidence; Crime. — Where no objection was interposed to the question before it was answered, a motion to strike out the testimony thus elicited will not lie.</p> <p>2. Criminal Lato; Sentence; Time. — That part of a judgment entry in a criminal case specifying the clay of the month and the year on which the sentence of imprisonment shall commence and expire is surplusage and may be stricken and the judgment corrected, especially when rendered inappropriate due to the suspension of sentence pending an appeal.</p>

Heard before Hon. Lum Duke. Taylor Mathis was convicted of arson and he appeals. The matters made the basis for quashing the venire are de hors the record, and can be presented only by bill of exceptions. There is no bill of exceptions in the record.

Heard before Hon. A. E. Gamble. Hop Felder was convicted of arson, and he appeals. A severance may be granted on motion of the state, as well as of the defendant, but when one severance has been granted any further motion is addressed to the discretion of tlie court. — MalacM v. State, 89 Ala. 134; Wilkins v. The^State, 112 Ala. 55.

Heard before Hon. Armstead Brown. Steve Frazier was convicted of having received or concealed stoien goods, and he appeals. The evidence is not sufficient to show that the goods were stolen, and the defendant was improperly convicted. — Perry v. State, 155 Ala. 93. No exceptions are reserved to the ruling o'f the trial court, and no charges requested raising the questions here' sought to be reviewed. It follows that there is nothing for review.

Heard before Hon. S. E. Greene. Travis Milton Ramey was convicted of aiding a prisoner to escape, and appeals.

Heard before Hon. O. J. Sbmmes. Hardaway Young was convicted of embezzlement, and be appeals. The precise question here raised was presented in tlie case of Walling v. Morgan County, 126 Ala. 342, and it was there held that a witness could not testify to entries on the books, or to items of the statement of accounts of which he had no personal knowledge.

Heard before Hon. W. W. Pearson. Ernest Garner was convicted of bigamy and he appeals. The court erred in refusing to let the defendant show that his first marriage was contracted before the age of statutory consent, and that he disaffirmed it prior to his second marriage. — Sec. 4879, Code 1907; Beggs v. State, 55 Ala. 108; Gooley’s Oase, 55 Ala. 162.

<p> Bastardy. </p> <p>Bastardy; Appeal; Assignment of Error; Necessity. — Bastardy-being but quasi criminal, it is necessary, on appeal, that errors be assigned and in the absence of such assignment on the record, the appeal will be dismissed.</p>

<p> Adultery. </p> <p>Adultery; Verdict; Related Charges. — The jury is not required to find by their verdict which one of the related charges a defendant is guilty of under an indictment charging adultery or fornication.</p>

Heard before Hon. Samuel E. Greene. Arthur Thomas was convicted of carrying concealed weapons, and he appeals.

Heard before Hon. A. E. Gamble. Terrell McWhorter was convicted of violating the prohibition law, and appeals. The charge refused to defendant referred to in the opinion is the affirmative charge. Counsel discusses errors insisted on in the admission of evidence, and the-refusal to give the affirmative charge for defendant, but without citation of authority.

<p>Appeal from Baldwin Circuit Court.</p> <p>Heard before Hon. A. E. G-amble.</p> <p>William Beiser was convicted of violating the prohibition law, and he appeals.</p>

Heard before Hon. S. L. Brewer. Aaron Howard was convicted of violating the prohibition law, and he appeals. Relationship to counsel is not a cause for challenge in a criminal case, and the court, wa's in error in striking for cause two names from the jury list'because first cousins of counsel for appellant. — Sec. 7276, Code 1907; Acts 1909, p.. 318; Washington v. State, 58 Ala. 355.

Heard before Hon. W. W. Peakson. Joe Foshee was convicted of violating the prohibition law, and he appeals. There was no preliminary testimony to show the corpus delicti, and the court was in error in admitting the alleged conversation between defendant and Edwards. — Smith v. State, 133 Ala. 150; Tolliver v. State, 142 Ala. 1. The evidence was not sufficient to support a conviction. — Old-acre v. State, 5 Ala. App. 187.

Heard before Hon. T. L. Sowell. Alf Wright if as convicted of an unlawful sale of intoxicating liquors and he appeals. Punishment should not be by piecemeal. — Newton v. Stae, 94 Ala. 431; Sec. 22, Acts 1900-1, 117. The judgment was indefinite, and incorrect. — Sec. 7635, Code 1907; Bradley v. Stae, 69 Ala. 318. On the evidence, the defendant should have been discharged. — DuBo.se v. State, 28 South. 656; Gillam v. State, 71 Ala. 10; Summers v. Stae, 70 Ala. 16.

Heard before Hon. A. E. Gamble. Proceedings by tbe State against J. 31. Salley for tbe discovery and seizure of intoxicating liquors illegally kept for sale. Judgment of forfeiture, and Salley appeals. Tbe affidavit is as follows: “State of Alabama, Lowndes County. Before me, J. 31.

Heard before Hon. S. L. Brewer. Click Harris ivas convicted of violating the prohibition law, and he appeals.

Heard before Hon. Armstead Brown. James Adams was convicted of keeping a gaming table, and appeals. Charge 2 referred to in the opinion is as follows: “The court charges the jury that if, after a consideration of all the evidence in this case, you believe that the witness Will Jackson exhibited malice or ill will against defendant, then you may disregard his evidence.”

Heard before Hon. Gaston Gunter. Mike Minto was convicted of keeping a gaming table, and lie appeals, and the judgment of the lower court was affirmed. (Bee 8 Ala. App. 303; 62 South. 376.) The attention of this court having been called to the condition of the judgment imposing hard labor, the court modifies its former judgment and

<p>Appeal from Russell Circuit Court.</p> <p>Heard before Hon. M. S'Ollie.</p> <p>Action by A. J. Self against A. Goldstein for breach of contract. Judgment for plaintiff, and defendant appeals.</p> <p>The bill of exceptions with -reference to the charges states as follows: Thereupon defendant requested the court to given the following written charges, following which are charges 1 to 7, inclusive, together with the action of the court thereon. Charge 3 is as follows: “The court charges the jury that if you find for the plaintiff 3’ou can onty assess nominal damages.”</p> <p>Where damages are in the nature of special damages the plaintiffs are not entitled to recover anything which they do not claim in their complaint. — A. G. S. v. Tapia, 94 Ala. 226; Ross v. Malone & Sons, 97 Ala. 530, 13 Cyc. 13. Under these decisions, plaintiff could not recover more than nominal damages. Proof without allegation is as impotent as allegation without proof. — Capital See. Co. v. Holland, 60 South. 498; A. G. S. v. Card-. well, 171 Ala. 274; 11 Enc. of Evid. 210. Counsel discuss charges refused, but without citation of authority.</p>

Heard before Hou. W. W. Haralson. Assumpsit by the J. T. McTeer Clothing Company against the T. L. Farrow Mercantile Company. Judgment for defendant and plaintiff appeals.

<p>Appeal from Montgomery Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Assumpsit by Frank H. Murpbree against I. N. Lichenstein and L. 'Cohen, late partners doing business - under tlie firm name of L. Coben & Co. Judgment for plaintiff, and defendant Liclienstein appeals.</p> <p>Tbe action was for work and labor done, and tbe plea was general issue and payment. There was judgment for plaintiff against defendant, and motion was made for a new trial on tlie ground that there was no evidence that tbe employment of plaintiff by Coben was in tbe line and scope of tbe business of L. Coben & Co., and that'the alleged employment by Coben could not bind Lichen stein without a ratification of employment by said Lichenstein, which motion being overruled, Lichenstein appeals. Plaintiff’s evidence tended to show that be ivas auditor and that be was employed by Mr. Coben, of tbe firm of Coben & Co., to audit tbe books upon an agreed compensation of $154.90, and that he had been paid only $21.40; that the firm of L. Cohen & Co., was composed of L. Cohen and Lichenstein; that Mr. Lichenstein was present while he was at work for the firm; that Mr. Cohen was the active manager of the business; that when he finished he rendered a statement to both gentlemen of his findings; and that Mr. Lichenstein was present when he was paid the $21.40. Cohen’s testimony was practically the same. It appeared further from the testimony that the firm was dissolving, and that the employment of Murphree was by Mr. Cohen, and that Murphree was told at the time that he would have to look to Mr. Cohen for his money.</p> <p>Defendant was entitled to show that he stated to plaintiff before he began work that Cohen had no authority to employ him, and he must look to Cohen. — Johnson & Go. v. Dutton, 27 Ala. 245. Where a partner does an act which is apparently not connected with the firm’s ordinary course of business, the firm is not bound unless such partner, in fact, had authority or unless the act is ratified. — 30 Cyc. 491; Tillis v. McKenna-, 21 South. 465; Abraham v. Hall, 59 Ala. 386;. Ex parte Ageace, 19 Eng. Ruling Cases, 439.</p> <p>We direct the attention'of the court to the following authorities on the question of the power and scope of a partner within the scope of the business of a trading or commercial partnership.- — Woodruff v. Scaife, 83 Ala. 154; 22 A. & E. Enc. of Law, 136; 30 Cys. 590; 110 U. S. 505; 6 Mayf. 701. Cohen was the manager of the business,, and he certainly had authority to employ a competent accountant to take stock, audit the books, and make a statement of the partnership affairs.</p>

Heard before Hon. J. C. B. Gwm. J. A. Jeukins recovered judgment against oue Pettigrew, and had garnishment issued thereon and served upon A. S. Leader. From a judgment discharging garnishee on his answer, plaintiff appeals. On the facts stated, the garnishee was indebted to defendant, and the court erred in rendering judgment discharging the garnishee. — White v. Kahn, 103 Ala. 308; Alexander v. Poliak, 72 Ala. 137; Archer v. Peoples Sew?.

Heard before Hon. Thomas W. Wert. Action by F. B. Orr against B. W. Watson and others for breach of a detinue bond. Judgment for defendants and plaintiff appeals.

Heard, before Hon. M. Sollie'. Action by the Georgia Fruit Exchange against D. C. Turnipseed for breach of contract. Judgment for defendant, and plaintiff appeals.

Heard before Hon. W. W. Haralson. Action by the Globe Tailoring Company against W. Seibold. Judgment for defendant, and plaintiff appeals. The defense was the general issue, payment, and set-off, the facts of which sufficiently appear from the opinion.

Heard before Hon. S. L. Brewer. . Action by Macon County against Milo Abercrombie as probate judge, and the sureties on his official bond to recover money collected by Mm as judge of probate for ex-officio services rendered in relation to public roads. Judgment for defendant and plaintiff appeals.

Heard before Hon. H. A. Sharpe. Assumpsit by the American Cement Plaster Company against the Ewart Lumber Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. J. Cuktis. Assumpsit by tlie B. F. Boden Grocery Company against H. P. Gipson. Judgment for defendant, and plaintiff appeals.

Heard before Hon. E. C. Crowe. Action by Lizzie G. Howell against J. H. Roll to recover rent of a storehouse. Judgment for plaintiff, and defendant appeals.

y City Court. Heard before Hon. Gaston Gunter. Assumpsit by Sophia Hertz against the Montgomery Journal Publishing Company on the common counts, and under a special contract. Judgment for defendant and plaintiff appeals'.

Heard before Hon. Cecil Browne. Action by J. H. Pepper against the American Central Insurance Company. Judgment by default for failure to answer interrogatories, and defendant appeals.

Heard before. Hon. Edward J. Gilder. Action by the Southern Railway Company against Q. S. Adams as Tax Collector, to recover taxes paid under legal compulsion under a special road tax levy allegal to be invalid. Judgment for defendant, and on motion of plaintiff the court set aside such judgment, and defendant appeals.

Heard before Hon. Hugh D. Merrill. Assumpsit I)}’ J. Iv. Birmingham against N. E. Bell. Judgment for plaintiff and defendant- appeals. The marginal figures were no part of the note, and the Avriting in the body controls. — Prim, et al. v. Ha-mill, 134 Ala. 652; 58 Am. Dec. 333; 53 Am. Dec. 652; 8 Am. St. Rep. 164; 4 A. & E. Enc. of LaAV, 130.

Heard before Hon. C. C. Nesmith. Assumpsit by Savannah Shields against the General Accident, Fire & Life Insurance Company, as beneficiary in a policy issued by appellant to William E. HoAvard. Judgment for plaintiff and defendant appeals.

Heard before Pión. E. C. Crowe. Action by William Hill against tlie United States Health & Accident Insurance Company. From a judgment for plaintiff, the defendant appeals. Reversed and remanded.

Heard before Hon. Bernard Harwood. • Assumpsit by Pickens County against L. C. Hudgins, Judge of Probate, and tbe sureties on his bond to collect tbe balance due tbe county for a certain mortgage tax. Judgment for- plaintiff, and defendant appeals. On tbe original brief counsel discuss tbe merits of tbe case.

Heard before Hon. John C. Pugh. Assumpsit by George 0. Oliver against John T. Camp. From a judgment for defendant, plaintiff appeals.

Heai’d before Hon. J. J. Curtis. Action by N. W. Davis against tbe Barney Coal Company, for breach of contract. Judgment for plaintiff, and defendant appeals.

Heard before Hon. W. W. Haralson. Action by Etha M. Decker against James T. Decker and others,-sureties on the appeal bond executed by George S. Decker, to obtain an appeal from the decree of the chancery court awarding the custody of a child to the plaintiff. Judgment for defendants and plaintiff appeals. While the bond is not in the form prescribed by the Code, it is good as a common law obligation. — Babcock v. Garter, 117 Ala. 575; Hughes v. Hatchett, 55 Ala. 539.

Heard before Hon. John H. Miller. Assumpsit by C. P. Parsons against the E. I. Du Pont De Nemours Powder Company. Judgment for plaintiff, and defendant appeals.

Heard before Hou. E. C. Crowe. Assumpsit by the First Avenue Coal & Lumber Company against W. J. Hite, begun in the Birmingham Court of Common Pleas, and taken by appeal by plaintiff to the Circuit Court, where the cause was dismissed because it appeared that the appeal was by the party in whose favor judgment was rendered.

Heard before Hon. C. P. Almon. Action by J. E. Moyer against tlie Ryerson Grain Company, for a breach of warranty in the sale of hay. Judgment for plaintiff and defendant appeals.

■ Appeal from Limestone Circuit Court. Heard before Hon. D. W. Speake. W. K. Walker was employed by the Commissioners Court of Limestone County to assist in a criminal prosecution involving the validity of a county road law, and a warrant ivas issued to him for his services. The County Treasurer declined to pay the warrant, and Walker moved for a summary judgment against him and his official bond. From a judgment denying the motion, plaintiff appeals.

Heard before Hon. John IT. Disque. Attachment suit by A. J. Callan against W. C. Wilson and others to enforce a lien for rent and advances. From a judgment for plaintiff, defendants appeal. The writ was levied on the 12th day of October, 1911, upon certain property, and notice given the same day. On the 17th day of October, 1911, a replevy bond was executed by defendant.

Heard before Hon. C. P. Almon. Action by the Northern Alabama Railway Company against the Wilson Mercantile Company. From a judgment for defendant, plaintiff appeals.

Heard before Hon. C. C. Nesmith. Assumpsit by H. H. McFerren .against the Edgewood Highlands Laud Company. Judgment for plaintiff and defendant appeals.

Heard before Hon; E. S. Lyman. Assumpsit by W. G. Parker against Columbus Francis. Judgment for plaintiff and defendant appeals. There were differences in the inferences which could he .drawn from the evidence, and the court was.in error in directing a verdict for the plaintiff. — Drew v. Western 8. & F. Go., 55 South. 997.

Heard before- Hon. H. A. Pearce. Assumpsit by Minerva Weeks against B. P. McDuffie & Sons. Judgment for plaintiff, and defendant appeals from an order of tlie court denying them a motion for new trial. Counsel discuss the facts in the case, and insist that they were such as to require a setting aside of the verdict, and the granting of defendant’s motion for new trial.

Heard before Hon. A. E. Gamble. Assumpsit by A. D. Slaughter against George Martin. Judgment for defendant, and plaintiff appeals. A debt to be a subject of set off must be a subsist- ■ ing demand at the time the suit' was brought. — Foul & Go. v. Foy-Hays Const. Co., 159 Ala. 453; Drennen v. Gilmore, 132 Ala. 246; Bt. L. & T. R. P. Co. v. McPeters, 124 Ala. 451; Lawton v. Ricketts, 104 Ala. 430; Collms v. Green, 67 Ala. 211; Johnson v. King, 20 Ala. 270.

Heard before Hon. W. W. Haralson. Assumpsit by R. E. Herring against J. F. Hooper. Judgment for plaintiff, and defendant appeals. The causes of action stated are separate and distinct and should not be joined. — 5 Cyc., and note; Sec. 5329, Code 1907. The complaint was demurrable for uncertainty, and the court was in error in overruling demurrers. There was a variance and the affirmative charge should have been given as to counts 1 and 2.

Heard before Hon, Joi-in H. Disque. Assumpsit by Ella Slioaf against J. T. Hagin. Judgment for plaintiff and defendant appeals. The court erred in its judgment and findings on the fact. — Harrison v. Hicks, 1 Port. 423. The wife has no estate or vested interest in the homestead during the life of the husband. —21 Cyc. 460; Witherington o. Mason, 86 Ala. 349. The ' wife may pay the husband’s debt. — Hollingsworth v. Hill, 116 Ala. 184.

Heard before Hon. S. L. Brewer. Assumpsit by Alice Kelley and others against Albert Kelley. Judgment for plaintiff, and defendant appeals. The allegation as to the transfer was insufficient as it must be sliOAvn how the transfer was made. — Cobb v. Bryant, 86 Ala. 316; Sec. 4985, Code 1907. .To be a holder, one must have the legal title. — Sec. 2489, Code 1907.

City Court. Heard before Hon. Charles W. Ferguson. Assumpsit by George Pappas against the Greek-American Produce Company and the individuals composing the firm. Judgment for plaintiff and defendants appeal. , The first count sufficiently appears from the opinion.

Heard before Hon. D. W. Speake. Assumpsit by the Lerman Milling Company against J. R. Hale & Son, with garnishment to the Farmers & Merchants Bank of Athens, and claim by the Stones River National Bank to the funds .garnished. There was judgment for plaintiff condemning the fund, and claimant appeals.

Equity Court. Heard before Hon. Thomas W. Wert. Action by Tbomas E. Pride against the Commercial Union Insurance Company, Limited, of London, England, for money had and received. Judgment for defendant, and plaintiff appeals.

Heard before Hon. Saffold Berney. Assumpsit by tbe German-American National Bank against James A. Lewis. Judgment for defendant and plaintiff appeals. Tbe court erred in overruling plaintiff’s demurrer to defendant’s second plea. — Secs. 5012 and 5014, Code 1907. Tbe court erred in rendering judgment for defendant, first, because no sworn plea was filed as required by section 5332, Code 1907. — Payne v. Broadfoot, 100 Ala. 610.

Heard before Hon. Travis Williams, Special Judge. Action by tbe Tennessee Yalley Bank against tbe firm of S. M. Avery & Sons and its members. From a judgment, for defendants, plaintiff appeals. Tbe facts sufficiently appear from tbe opinion.

Heard before Hon. Hugh D. Merrill. Action by Vassar L. Allen against A. C. Smith and others, upon a note. Judgment for plaintiff and defendant appeals. The account was not an account stated.- — Zacharine v. Pallotti, 49 Conn. 36; Glare v. Glare, 10 Neb. 54; 1 Oyc. 364; 15 Am. Dec. 181; 34 Am. Rep. 435. The burden correctly lies on the plaintiff in an action on a stated account. — Rice v. Bloss, 90 Ala. 416; Ware v. Manning, 86 Ala. 238; Loventhal v. Morris, 103 Ala. 335.

Heard before 1-Ion. C. P. Almon. Assumpsit by R. IT. Lay against S. T. Williams. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. C. B. Gwin. Assumpsit by P. H. Roy against the Louisville & Nashville Railroad Company. From a judgment of non suit, plaintiff appeals. The appellant is entitled to have the court pass upon the ruling of the trial court in sustaining demurrers to his general and special replication to the pleas. — Richard v. Sweeney, 109 Ala. 651; Bank v. Baker Hill, 108 Ala. 635. Counsel then insists, with citation of authority, that these several rulings were incorrect.

Heard before Hon. William M. Walker. Action on the common count by the Louisiana Lumber Company against the J. W. Farrior Lumber Company. From a judgment for defendant, plaintiff appeals.

Heard before Hou. S. L. Brewer. Action by W. C. Agee & Co. against J. M. Steverson. From a judgment for plaintiffs, defendant appeals.

Heard before Hon. J. J. Curtis. Assumpsit by W. J. Kendrick against E. O. Cunningham. Judgment for defendant, and plaintiff appeals.

Heard before Hon. Samuel B. Browne. Action by John Craft against Haas Bros., and the members of the firm. Judgment for plaintiff, and defendant appeals. The complaint is based on the common counts, on a count for use and occupation, and for rent.

Heard before Hon. Ti-iomas W. Coleman, Jr. Assumpsit by Krohn, Fecbbeimer & Co. against John T. Wheeler, upon bis contract of guaranty. Judgment for plaintiff and defendant appeals. To charge a guarantor it is necessary that be should be notified within a reasonable time of its acceptance, and that credit be given within a reasonable time. — Lawson v. Tenon, 2 Ala. 373; Fay v. Hall, 25 Ala. 704; Walker v. Forbes. 25 Ala. 147; Davis 8. M. v. Richards, 115 U. S. 524.

Heard before Hon. C. C. Nesmith. Assumpsit by the Central of Georgia Bailway Company against the Birmingham Sand & Brick Company. From a judgment for defendant, plaintiff appeals.

Heard before Hon. J.C. B. Gwin. Action by Mark E. Knight against the Supreme Forest Woodmen Circle on an insurance policy on the life of William L. Knight, in which plaintiff was named' as beneficiary. Judgment for plaintiff and defendant appeals.

Heard before Hon. Hugh D. Merrill. Detinue by W. C. Gallaliar against Ingram & Company, for a mule. Judgment for defendant and plaintiff appeals. Counsel discuss the errors assigned, and cite authorities to sustain their contention that the court was in error in granting'defendant a new trial, but in view .of the opinion it is not deemed necessary to here set them out.

Heard before Hon. Thomas W. Coleman, Je. Detinue by tlie Lanford & Co. Live Stock Corporation against C. W. Mathis, and others, to recover a mare. Judgment for defendants on the special finding of the facts, and plaintiff appeals.

Heard before Hon. A. H. Alston. Detinue by J. E. Butler & Co., against G. P. Moon. Judgment for plaintiff and defendant appeals. Counsel discusses tbe errors attempted to be assigned with citation of authority in support of bis contentions, but in view of tbe opinion, it is not deemed necessary to here set them out.

Clair Circuit Court. Heard before Hou. James E. Blackwood. Detinue by A. W. Willard against L. E. Cox. Judgment for defendant under direction of the court, and plaintiff appeals. • Under the facts in this case the relation of hirer and laborer existed, and the legal title to the crop vested in the landlord. — Sec. 4743, Code 1907. The court, therefore was in error in instructing for the defendant.

<p> Detinue. </p> <p>Detinue; Right of Action; Prior Possession. — Where a defendant’s subsequent possession is unconnected with the true ownership, a plaintiff’s prior possession of personal property entitled him to recover it in detinue although he be not the owner.</p>

Heard before Hon. Saffold Bernex. Detinue by the Haas Bros. Packing Company against Harvey B. Page and Boy Page. Judgment for plaintiff and defendant Boy Page appeals. The suit seemed to be for the fixtures and furniture connected with a meat or market business located at a certain point in Mobile.

Heard before Hon. Henry B. Foster. Detinue and trover by W. B. Kyle against U. S. Hodges. Judgment for plaintiff, and defendant appeals. The following charges were given at the plaintiff’s request: “(1) The court charges the jury that the burden of proof is on the defendant to reasonably satisfy you from the evidence of the correctness of any item charged to the plaintiff by the Iron City Lumber Company, which was not authorized by the mortgage in evidence.

Heard before Hon. Thomas W. Coleman, Jr. Detinue by the members of the firm of Smith Bros. & Co., against S. E. Logan and others for certain mules. Judgment for plaintiffs and defendants appeal. The court was in error in sustaining demurrers to appellant’s special pleas 2, A. and E. —Fuller v. Econes, 108 Ala. 464; Thomason v. Lewis, 103 Ala. 426; HieJcman v. Riehburg, 122 Ala. 638; Cox v. Harris, 62 Am. St. Rep. 187; Thompson v. Howard, 31 Mich. 312; 59 Am.

Heard before Hon. Gaston Gunter. T. E. Lovejoy was convicted of violating a municipal ordinance of the city of Montgomery, prohibiting* the engaging* in the banking business without first obtaining a municipal license therefor, and he appeals. Section 6 of the Acts of 1911, p. 54, places a limitation upon municipalities as to licenses imposed upon hanking institutions, .such as the bank here involved.

Heard before Hon. J. C. B. Gwin. T. J. Ridgeway was convicted of violating an ordinance of tbe city of Bessemer, and -be brings babeas corpus to be discharged from tbe custody of tbe city authorities. From a judgment denying bis petition and remanding him to tbe custody of tbe municipal authority he appeals. Habeas corpus is tbe proper remedy to test tbe validity of the ordinance. • — Ex parte Patterson, 51 L. B. A. 654.

Heard before Hon. Bernard Harwood. Action by the town of Eutaw against Mattie Y. Webb, to enforce the collection of an' assessment made for street and sidewalk improvements. Judgment for plaintiff and defendant appeals. The judge should have recused himself on motion as he was interested in the cause then coming up for hearing. — Sec. 4626, Code 1907; Ex parte Cornwell, 144 Ala. 497; Crook v. JSeiaborg, 124 Ala. 481; Pegues v. Baker, 110 Ala. 251.

Heard before Hon. A. H. Alston. Action by W. L. Ellsberry against the Royal Lumber Company for the penalty for failure to enter on the margin of the record a satisfaction of a mortgage. From a judgment directed for plaintiff defendant appeals.

Heard before Hon. John H. Disquel Action by Charles McClendon against the Henderson Land & Development Company, for the statutory penalty for a failure to satisfy the record of the mortgage. Judgment for defendant and plaintiff appeals.

Heard before Hon. T. L. Sowell. R. H. Palmer had judgment against J. H. Elliott, and had execution thereon levied upon certain property, to which the Jasper Land Company interposed a claim alleging that it was the property of the land company under a sale to Elliott in which the land company retained title until the purchase price was fully paid.

Heard before Hon. H. A. Pearce. Action by C. M. Coureey against the Jackson Lumber Company. Judgment for plaintiff, and defendant appeals. The following are tlie counts referred to in the opinion : (5) Plaintiff claims of defendant the further sum of $5,000 as damages for injuries to him at or near defendant’s sawmill in Covington county, Ala., on, to wit, February 1, 1912.

- Heard before Hon. W. W. Pearson. Action by Will Jones against tbe Atlantic Coast Line Bail way, for injuries while in its employment. Judgment for plaintiff, and defendant appeals.

Heard before Hon. C. P. Almon. Action by W. E. Metbvin against tbe Alabama Northern Railroad Company, for injuries received while in its employment. Judgment for plaintiff, and defendant appeals. The oral charge was .erroneous in authorizing a recovery on negligence of Whitlock in failing to notify plaintiff that he was going to uncouple the cars, and allowed a too wide range of discretion in the assesment of damages under the complaint in this case. — Seaboard Mfg.

Heard before Hon. William M. Walker. Action by Jim Dunn against the Sloss-Sheffield Steel & Iron Company for damages for personal injuries suffered while in their employ. Judgment for plaintiff, and defendant appeals.

Heard before Hon. C. C. Nesmith. Action -by E. A. Morris against the Birmingham Southern Railroad Company for injury to stock by frightening so as to cause the stock to jump and be killed. Judgment for plaintiff, and defendant appeals. The court erred in charging the jury ex mero motu .that defendant had the burden of acquitting itself of any negligence proximately contributing to the death of the animals.

Heard before Hon. W. W. Haralson. Action by A. M. Hinds against the Nashville, Chattanooga & St. Louis Railway, for damages for injury to a shipment of cattle. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Charles W. Ferguson. Action by H. Kennedy against the city of Birmingham, and others, for damages to realty by the construction and enlargement of a highway. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. C. B. Gwin. Action by M. H. Cabaniss against the Taxicab & Touring Car Company for damages for injury alleged to have resulted from a collision between plaintiff on Ms bicycle, and an automobile of defendant. Judgment for plaintiff, and defendant appeals.

Heard, before Hon. E. C. Ckowe. Action by Mrs. Tippie Coffman against T. M. Henderson for damages for placing cloud upon title. Judgment for defendant on demurrer, and plaintiff appeals. The following is the complaint: “Count 3.

Heard before Hon. John H. Disque. Trover by G. T. Fox against W. L. Sampey, for the conversion of two bales of cotton. From a judgment for defendant, plaintiff appeals: The court was in error in holding plea 4 a plea of res ad judicata, and that plaintiff was estopped from asserting title to the crop in question. — Elmore-Quillan & Co. v. Henderson, et al., 60 South. 821; Comm. Ct.

Heard before Hon. W. W. Pearson. Action by Mariab P. Deas as administratrix and as widow against L. Lasseter in trover, trespass and case. Judgment for plaintiff and defendant appeals. This cause was dismissed on a former appeal for want of jurisdiction, and tbe case stands in tbe trial court tbe same as if no appeal bad been taken. — 3 Cyc. 200; Deas v. Lasseter, 2 Ala. App. 469. Under these conditions only the lower court had the right to revive. —2 Cyc. 779; 2 Code Rep.

Heard before Hon. E. C. Crowe. Action by Amanda Summerville against- P. J. Puffin and others on a bond. Judgment for plaintiff, and defendants appeal.

Heard before Hon. Thomas W. Coleman, Jr. Action by James R. Draper against John H. Wilson. Judgment for plaintiff, and defendant appeals. Plaintiff claims for the conversion of two bales of cotton in the first count, for money had and received in the second count, and in the third count for destroying plaintiff’s lien on said cotton.

Heard before Hon. William M. Walker. Action by Irene Jackson and another as administrators, against the Birmingham Railway, Light & Power Company, for death of their intestate. Judgment for plaintiffs, and defendant appeals.

Heard before Hon. W. W.. Haralson. Action by Mike Brewster against the Southern Railway Company for the value of a bale of cotton, judgment for plaintiff, and defendant appeals. The complaint as originally filed named Mike Brewster as plaintiff and the Southern Railway Company as defendant, and was in code form for suits on bills of lading for loss of goods.

Heard before Hon. John C. Pugh. - Action by Mrs. P. G. Harrison against tbe Binning ham Water Works Company for damages for cutting off water.

Heard before Hon. T. L. Sowell. Trover by W. H. Bridgman against J. A. Doss and others. Judgment for defendants, and plaintiff appeals. Counsel discuss the assignments of error with citation of authority in support of their contention, but it is not deemed necessary to here set them out.

Heard before Hon. T. L. Sowell. Sliit by W. Worthington against T. L. Long for damages for destroying his landlord’s lien upon certain cotton. Judgment for defendant and plaintiff appeals. Want of notice of the landlord’s lien will not protect the defendant in this case. — Lomax v. Legrand, 60 Ala. 537; Manassas v. Dent, 8 South. 108; Waite v. Corbin, 19 South. 505; Bush v;. Willis, 30 South. 443; McClelland v. Robinson, 55 South. 99.

Heard before Hon. Saffold Berney,, Trespass by Georgia 0. McCracken against C. J. Ewton and others. Judgment for plaintiff, and defendants appeal. The action was against the defendant Ewton and the sureties on his bond as constable for levying upon and taking away a lot of household goods alleged to belong to plaintiff, under an execution issued against her husband.

Bessemer City Court. Heard before Hon. J. C. B. Gwin. Action by Joe C. Coleman against P. F. Murphy for assault and battery. Judgment for plaintiff, and defendant appeals.

Heard before Hon. C. C. Nesmith. Action by George W. Taylor against the Seaboard Air Line Railway Company, for damages for personal injuries and to property. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Charles W. Ferguson. Action by Martha T. Sanders against the Central of Georgia Railway Company for damages for directing plaintiff to take the wrong train. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Charles W. Ferguson. Action by Kobert A. McLeod against the Birmingham Bailway, Light & Power Company. Judgment for plaintiff, and defendant appeals.

Appear from.Geneva Circuit Court. Heard before Hon. H. A. Pearce. Action by Ella Mathis against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals.

Action by W. B. Leedy & Co., against Charlie’s Transfer Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. J. Cuutis. Action by George W. Gravlee against tbe Empire Coal Company, for damages for injuries received on one of its trains. Judgment for plaintiff and defendant appeals. The court erred in permitting the physician to state that when he called on Gravlee he told him he got hurt on the train. — Pitts v. State, 140 Ala. 70; Jernigan v. Ciarlo, 134 Ala. 315; Harloness v. State, 129 Ala. 71; Bir. D. R. R. Co. v. Hale, 90 Ala. 8.

<p>Appeal from Eandolph Circuit Court.</p> <p>Heard before Hon. S. L. Brewer.</p>

<p>Appeal from Morgan Law and Equity Court.</p> <p>Heard before Hon. Thomas W. Wert.</p>

<p>Appeal from Pike County Law Court.</p> <p>Heard before Hon. T. L. Borum.</p>