profits or waste, can only be enforced in equity although the rents
are alleged to have been sufficient to satisfy the mortgage debt; the
mortgagee being the legal owner of the estate, and his accountability
for rents, etc., only an. incident to the right to redeem in equity.—
Harris v. Jones, 633.
Same; Bill to Redeem.-The bill examined and held not to be
a bill to set aside the second mortgage, but to redeem and to compel
an accounting by the mortgagee in possession, and therefore, not
demurrable.-Ib. 633.
MUNICIPAL CORPORATIONS.
For effect of conviction by recorder, see Former Jeopardy.
Municipal Corporation; Ordinances; Presumption.-An ordinance
assuming to exercise a power within the granted powers of the
municipality not void on its face is presumed to be reasonable and
valid until the contrary is shown.-Briggs v. B. R. L. & P. Co., 262.
Same; Reasonableness.-Whether an ordinance of a municipality
is unreasonable is a question to be determined by the court, and not
for the jury.—Ib. 262.
Same; Validity.-The unreasonableness of an ordinance must be
clearly shown before the courts will declare such ordinance void for
unreasonableness.-Ib. 262.
2. Suits Against-Joinder.
Parties; Objection.-Under section 1274, Code 1907, an objection
that some person or corporation should have been joined with the
city as a defendant, but had not been, should be presented by a
motion for non-suit, and not by a demurrer.-City of Bessemer v.
Whaley, 381.
Same; Waiver.-Where the city fails to move for a non-suit for
want of a proper party defendant under section 1274, Code 1907, and
pleads to the complaint instead, it waives its right to object to non-
joinder by parties defendant.-Ib. 381.
Municipal Corporation; Defective Sidewalk; Injury; Evidence.
-Where the complaint alleges that the city officers failed in their
duty relative to the sidewalks, city ordinances relating to such duties
are admissible in evidence.-City of Bessemer v. Whaley, 381.
4. Annexation and Merger.
Municipal Corporations; Annexation and Merger; Effect on
Pending Action.-Under section 1159, Code 1907, where pending a
suit by the city of Elyton, that city became a part of the city of
Birmingham, the court properly ordered on motion that the suit
proceed in the name of the city of Birmingham, although ordinarily
the rule is that where the entire interest of the sole complainant in
a suit passes to another by assignment or otherwise, the assignee
claiming by a title that may be litigated must seek relief by an
original bill in the nature of a supplemental bill, or by bill of revivor.
-Rudolph v. City of Birmingham, 620.
Sume; Streets.-Where a city took a highway in territory incor
porated into a city as it exists within law and fact at the time of
such incorporation, its location in law and in fact was not affected
by an encroachment thereon by an abutting owner.-Ib. 620.
NEGLIGENCE.
1. Proximate Cause.
Negligence; Proximate Cause.-A person guilty of negligence is
responsible for all the consequences which a prudent, experienced
man, acquainted with all the attendant circumstances, would have
foreseen.-Briggs v. B. R. L. & P. Co., 262.
Same.-Unless the evidence clearly shows that the negligence
of defendant was not the proximate cause of the injury complained
of that question is for the jury.-Ib. 262.
New Trial; Successful Party; Grounds.-Where a verdict was
rendered for plaintiff, the only ground on which he could properly
seek a motion for a new trial was that the verdict was inadequate.
-M. & O. R. R. Co. v. Brassell, 349.
Same. Under the facts in this case it was the province of the
jury to determine whether plaintiff had sustained any substantial
damages as the proximate result of the alleged wrong, and hence a
verdict in his favor for nominal damages only should not be set
aside by the court unless the amount allowed was so inadequate as
to plainly indicate that the jury was actuated by passion, prejudice
or other improper motive.-Ib. 349.
Appeal and Error; Review; Damages.-There being credible
evidence and reasonable inferences therefrom upon which the jury
might rest the amount awarded, both as to compensation and exem-
plary damages, the amount of the verdict did not show such passion
or prejudice as to require the setting aside of the verdict.-B. R. L.
& P. Co. v. Nalls, 352.
Nuisance; Private; What Constitutes.-Although a private stable
per se is not a nuisance, it may become so by reason of the manner
in which it is constructed, kept or used, or by reason of the location
being improper or necessarily injurious to a neighbor.-Kyser v.
Hertzler, 658.
Same. A private stable emitting offensive odors, located about
thirty feet from the front of plaintiff's residence, is a private nuis-
ance which equity will abate.-Ib. 658.
Same; Abatement and Jurisdiction.-Section 718, Code 1907, con-
fers a concurrent and cumulative, but not an adequate remedy, and
does not affect the original jurisdiction of equity to abate nuisance.
-Ib. 658.
Jones v. State, 174 Ala. 53, by Davis v. State, 59.
Elmwood Cemetery Co. v. Tarrant, 170 Ala. 549, by Ex parte State
v. Lovejoy, 401.
Cox v. M. & G. R. R. Co., 44 Ala. 611, by De Soto Coal Mining &
Dev. Co. v. Hill, et al., 669.
Waters v. Creagh, Ex. 4 Stewart & Porter, 410 by De Soto Coal
Min. & Dev. Co. v. Hill, et al., 669.
Payment; Evidence; Burden of Proof.-The administrator of a
deceased attorney suing for services rendered by the attorney has
the burden of proving that the services were rendered and that they
had not been paid for in whole or in part.-Winter v. Pollak, 153.
Same; Jury Question.-Under the evidence in this case it was
a question for the jury whether the services rendered by the attorney
for which his administrator was suing had been paid.—Ib. 153.
Pensions; Pensioners.-The widow of a pensioner who was
drawing a pension under Acts 1911, p. 690, is a pensioner within
section 27 thereof, authorizing the probate judge to collect the pen-
sion upon a compliance with the provision of the said Act.-Purifoy
v. Teasley, 416.
In particular actions or crimes, see that title; see Appeal and
Error, § 1 (b).
Pleadings; Complaint; Allegation; Conclusion.-Where the facts
set out in a complaint contradict the general conclusion, in determin-
ing the sufficiency of the complaint the conclusion must yield to the
facts alleged.-L. & N. R. R. Co. v. National P. Bank, 109.
Pleading; Striking Plea. It is proper to strike frivolous pleas
on motion made to that end.-Baker v. Britt-C. Shoe Co., 225.
Pleading; Replication; Necessity.-Where the action was against
a corporation for the breach of a contract, and the fact that, not-
withstanding the alleged contract had not been reduced to writing,
signed by its president and countersigned by its treasurer, its valid-
ity was thereafter recognized by a partial execution thereof, was
admissible under the issues made by pleas of non est factum, and
the general issue, replications to that effect were unnecessary; but
the allowance of unnecessary replication was not reversible error.
-Buck Creek L. Co. v. Nelson, 243.
Pleading; Amendment; Right.-An amendment which will not
cure a fatal defect in a pleading will not be allowed; hence, a party
seeking leave to amend must show that the proposed amendment
will make such pleading good.-Watters v. Lyons, 525.
Pleading; Construction.-Pleadings are no stronger than their
weakest alternative averment, and will be so construed.-Union Cem-
etery Co. v. Jackson, 599.
Quieting Title; Mortgage by Insane Persons; Legal Remedy.—
A mortgage by an insane person being absolutely void, a bill to have
the same removed as a cloud on title, is without equity as complainant
has an adequate remedy at law by ejectment.-Harris v. Jones, 633.
RAILROADS.
Railroads; Persons on Track; Unlawful Speed.-Where the re-
covery was sought on the theory of discovered peril alone, the run-
ning of a train which ran down plaintiff's intestate at an unusual
rate of speed, furnishes no basis for liability.-Helms v. C. of Ga. Ry.
Co., 393.
Same; Evidence.-Where it was sought to charge a railroad
with negligence on the theory that it wantonly ran its train at an
unusual rate of speed, evidence that a large percentage of the travellers
use the railroad tracks as a highway, is not admissible for the pur-
pose of showing that the railroad company should have anticipated
the presence of persons on the track; there being no showing as to
the number of travellers in that vicinity.—Ib. 393.
Same; Wanton Negligence.-Where those in charge of a passen-
ger train which ran down a trespasser were not guilty of simple
negligence after discovering his position of peril, they could not be
guilty of willful negligence after discovery of danger.-Ib. 393.
Robbery; Evidence.-Where a prosecutor testified that when
within about three quarters of a mile of town he was robbed by
defendant and five other negroes, it is competent for a witness to
testify that he had seen defendant in town about two hours before
the commission of the offense and that he was with a crowd at that
time. Washington v. The State, 101.
Same. Where it was shown that the robbery was committed
while it was raining, it was competent to show by a witness that he
saw defendant about three hours after the robbery, and that his
clothes were wet and his shoes muddy.—Ib. 101.
Same. Where defendant had had ample time and opportunity
since the crime and before his arrest to dispose of the gun and
money, it was proper to exclude evidence that when defendant was
arrested neither a gun nor money was on his person.-lb. 101.
Sales; Construction; What Constitutes.—Where a seed company
consigned seed to retail dealers under an agreement for the sale of
the seed on commission with a return of the unsold seed when called
for, to be taken back at the invoice price, and the amount due for the
seed sold paid at that time, the transaction constituted a sale, the
title passing to the dealers, and hence, defendant was not liable
for the payment of taxes upon the seed; it further appearing that
defendant did not fix the price of the seed, and the retailers were
not required to account after each sale, but were only entitled to a
deduction for the amount of the seed returned unsold.-D. M. Ferry
& Co. v. Hall, 178.
Sales; Passing Title; Order Notify.-Goods shipped with bill
of lading attached, order notify, remain the property of the seller
after they have reached the station of the buyer until the draft is
paid which is attached to the bill of lading.-Sessoms Gro. Co. v.
Inter. S. F. Co., 232.
Sales; Delivery; Reasonable Time; Option.-Where time for
delivery of goods sold is at the option of the buyer, he must exercise
his right within a reasonable time, and the seller is entitled to a
reasonable time to make delivery after notice.--Brunner v. Mobile-
G. P. L. Co., 248.
Same; Pleading.-The pleadings considered, and it is held that
the allegations that plaintiff demanded delivery of the lumber within
a reasonable time was a mere conclusion and insufficient, and that
the allegation was also defective for failure to allege that defendant
failed to make delivery within a reasonable time after demand.—
Tb. 248.
Trespass; Evidence; Possession.—The evidence examined and
held not sufficient to show that plaintiff was in actual possession of
certain unenclosed, swampy woodland at the time defendant cut tim-
ber therefrom.-Ib. 385.
Trial; Inspection of Papers.-It was not error for the court to
refuse to require the state's counsel to turn over to counsel for de-
fendant a slip of paper in the possession of the state's counsel on
which defendant had written his name, but which was not sought to
be introduced in evidence.-Spicer v. The State, 9.
2. Objections to Evidence.
Trial; Objections to Evidence; Necessity.-Where defendant
made no objection to evidence of the res gestæ of the offense of rob-
bery against another, he could not complain of its admission on
appeal.-Washington v. The State, 101.
Same; Reception of Evidence; Objections.-Where the objection
to a question states no ground, such objection is properly overruled.
-McCray v. Sharpe, 375.
3. Sufficiency of Evidence.
Trial; Sufficiency of Evidence; Objection; Form.-The suffi-
ciency of plaintiff's evidence to make out a prima facie case after he
has rested his case, can only be presented by a demurrer to the evi-
dence, or by a request for the affirmative instruction for defendant,
and not by motion to exclude all of plaintiff's evidence.-McCray v.
Sharpe, 375.
Trial; Argument of Counsel.-Where the son of deceased had
testified to facts showing that the company was free from liability for
the death of his father, it was not error for counsel of the company
to ask in his argument what the administrator was endeavoring to
do, although the intimation was that he was attempting to recover
a money judgment against the company; such being the obvious pur-
pose of the administrator.-Helms v. C. of Ga. Ry. Co., 393.
TROVER AND CONVERSION.
Trover; Demand; Necessity.-One who takes possession of chat-
tels belonging to another, even under a bona fide belief of a right to
do so, takes them wrongfully and is guilty of a conversion thereof,
and no demand is necessary before suing in trover.-Meador v. Evans,
229.
Vendor and Purchaser; Rescission; Time; Laches.-Laches is
grounded upon the assertion of adverse rights and unreasonable de-
lay, to the prejudice of the adverse party, and acquiescence involves
actual or imputable knowledge; hence, a complainant is not guilty
of laches where, within eight months after discovering a false rep-
resentation in a sale of land, it filed its bill for a cancellation of the
conveyance and a rescission of the contract of purchase, the respond-
ents' position having in no way changed except that one of the
respondents had died in the interim.-Union Cemetery Co. v. Jack-
son, 599
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