davidaulloa/AmericanStories huggingface dataset:
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
cARwILE v. cARwILE.


Action Of Detinue-Appcal from the City
Court of Bessemer.
i. Action of detinue: hearsay evidence
inadmissible.-In an action of detinue to
recover a COW and calf alleged to have
been taken from the plaintiffs farm by
the defendant the testimony of the plain
tiff as to. statements made to him
by his tenant regarding the taking of the
stock sued for by the defendant, and
that the defendant told him that after
50 taking them the defendant refused to
surrender the possession of the stock. is
inadmissible in evidence, such testimony
being hearsay.
Q. Evidence; when error not shown in
the exclusion of answers: appeals
Where. in the trial of a civil case excep-
tons are reserved to the rulings OF the
court in excluding the answers to GER
tain questions on motion of the defend
ant. and the bill of exceptions shows said
questions but not the excluded answers.
II can not be affirmed on appeal that the
court committed an error for excluding
such answers. since the rulings in the
trial court must be presumed to be cor
rect until error is affirmatively shown.
8. Action Of detinue; charge of court
to jury.-In an action of detinue to re-
cover a COW and calf. alleged to have
been taken from the plaintiffs farm by
the defendant. who was his WIFE where
there is evidence tending to show that
In the settlement OF their respective
claims to crtain property. 1t was agreed
| that the defendant should have the COW
| and calf sued for. and that in accord
ance with the terms OF the agreement
the defendant took possession of said
property. charges requested by the plain
| tiff which iguore this phase of the testi-
| mOny are DrOperlv refused
Affirmed.
Opinion by Tyson. Z
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
UNITED STATES FIDELITY AND
GUARANTY CO. ". CHARLES
Opinion by HARRISON, ].

GUARANTY CO.. v. CHARLES
ct al
Action upon a pro nissory note-Appeal
from the City Court of Montgomery
/. Promissory note; illegal considera-
tion.-Where an oath Is given, upon a
consideration that the payee therein will
abstain from. criminal prosecution OF the
principal maker, such. promise on the part
of the payee g against public policy and
the note is founded upon an illegal con
sideratson and is unenforceable. (Bibb
asserts a principle contrary to the on.
here announced, overruled).
2. Same; same. sufficiency of plea
In an action upon a promissory note,
brought by the pay-e against the sure
ties on said note, special plea which
sets up that said note was given in con-
sideration OF an agreement and promi Sc
made by the payee not to prosecute the
prin ,ipal maker on said note for the
embezzlement committed by him, sets up
good defense. since the considerati ton
of such note was against public policy,
illegal and rendered the note unenforce-
able. .
8. Charge of court to Jury In civil case;
sufficiency of evidence.-In the trial of
civil case a charge requested by one OF
press the jury. that a greater measure
of proof was necessary In order to au-
thorize verdict than that the jury
should be reasonably satisfied from the
evidence. is properly refused as being
misleading.
T. Action upon promissory note; charge
OF court to jury.-ln an action upon a
promissoiy note. where the defendant sets
up that the note was founded upon an
illegal consideration a charge requested
by the plaintiff which instructs the jury
that IF the agreement between the
plaintiff and the defendants. which in
duced the signing of the notes sued on in
equally capable of two constructions. one
legal and the other criminal, the turv
should rather hold TO the construction
making the agreement legal. than to the
construction making the agreement Grim
inal,' Is properly refused.
Affirmed.
Opinion by Dowdell, ].
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
Opinion by Mcclellan, C.
BLUTHENTHAL & BICKERT V. Nc
WHORTER.


Action upon a promiCsory note.-Appeal
from the Circuit 'ourt of I.owndes.
l. Int OXIcatlng liquors; lrregularity
of sale.A dealer in liquors doing bust
ness outside OF a prohibition district. wn)
there sells liquoI knowing that the pur-
chaser is buying it for resale within the
prohibition district, may, nevertheless
recover the purchase price of the liquor,
If the liquor Is no. sold by The purchaser
within the district as intended.
=. Same same.-Mere knowledge ON
the dealers part that the purchaser IS
buying the liquor for the purpose of
selling it in the prohibition district,
coupler with the sale by the purchaser IN
such district, does not render the trans
action illegal. but to nuke 1t illegal
there must ne IN addition some particI
patton by the dealer in the illegal pur-
chase and act by the purchaser
3. Same; same; action for price of
liquor sold; sufficiency of plea.-In an
action On a promissory note. plea by
the defendant which AYERS that the con-
sideration for the note was spirituous,
vinous and malt liquors sold by plaintiff
to the defendant, that at the time Of
said sale there was a law in force pro-
hibiting the sale of such liquors in the
country where the purchaser lived, that
said liquors were bought by defendant
for the purpose OF selling the same in
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
Opinion by Mcclellan. c. J.

SOUTHERN IRON WORKS v. CEN
TRIAL OF GEORGIA RAILWAY co.
Statutory Action of Ejectment.-Appeal
from Montgomery Circuit Court.
l. Ejectment; admissibility in evidence
of declarations of deceased owner as to
boundary Evidence of declarations of
deceased officers of corporation owning
real estate as to the location of the boun-
Diary lines thereof. not shown to have
been made when the declarent was point
ing out or marking the boundaries or
discharging some duty in reference there
to, is hearsay and inadmissible in be-
half of the grantee of said corporation in
an action of ejectment. brought by a
third party, wherein said boundary is in
volved.
g Boundaries; when street used as a
boundary.-Whe-e a street is named in
a deed as a boundary of the land con-
veyed, it will be considered in the alb
sence OF evidence to the contrary. to
mean the street as actually open and in
use.
2. Ejectment; disclaimer: sufficiency of
verdict and judgment.-Where in an ac-
ton of ejectment the defendant files a
plea disclaiming title to a specifically de-
scribed portion of the land sued for. and
no issue is raised thereon, a verdict re-
citing that the jury find for plaintiff for
the lands sued for, which are not in
cluded in the plea of disclaimer. Is not
void for uncertainty; and a judgment
rendered upon said verdict in favor of
the plaintiff, describing the lands not
included in the plea of disclaimer and
declaring plaintiff entitled thereto is
valid.
Affirmed.
Opinion by Tyson, ].
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
CONTINENTAL FIRE INSURANCE co.
V hRUUkS.

Action upon fire insurance policy.-Ap-
peal from the Circuit Court of Pike.
/. FIRE insurance policy; insuraD'e
in,erest.-W mere the owner after having
taken out a lire insurance policy upon a
muse, MAKES contract or sale of the nh
sured property, agreeing to denver the
deed wnen the entlre purchase money Is
paid ana after Sucn contract OF sale ana
while there remained oue more Of the
purchase money tnan the amount OF the
insurance, the insured property was de-
slroyed ny nre, tne insured retained an
Insp:aple interest In the property so DC
stroyed.
same; pleading and practice: when err
ror without lnJury.-ln an action on \
fire Insurance poiicy, where the detenI-
ant pleads the preach or one OF the con-
ditlons OF the policy ana the piainti.t
tiles a replication IN when he alleges that
a certain person VINO was the defendant 3
general agent agreed to waive SAID con-
aiticn, anu the defendant niles rejoinder
iii which he denies tnat sucn person WAS
the defendant general agent at the time
referred to- it .dnnot be said to be pre-
ju 1iciaI error for the court to strike out
SUCH rejoinder, when 1t appears that the
case was afterwards tried on issue join
ed on the replication.
5. Fire insurance; power to waive; con-
diuon.-An insurance agent with au-
tnority to write insurance. collect premI-
ums, and act generally as the company 5
agent for sucn purposes, and to make
insurance contracts. mas power to waive
condition in policy written by him
providing that any, change in the title or
possession of the property would avoid
the policy unless an agreement that suca
change might be made was Endorsed OIL
the policy.
l. Same; same termination of agency.
-Wtere a general insurance agent. with
authority to waive a condition In fire
policy torbidding \ change in interest
or possession, ceased to be the company q
agent, a waiver by him of such condi-
ton after the termination of the agency
is binding on the company, where the in
sured in good faith relied on his author
ity, and had 10 notice or knowledge of
the termination of the agency.
Affirmed.
Opinion by HARRISON, ]. g.
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24

said county in violation &C said law, ana
that plaintiff sold said liquors to de-
PENDANT with the knowledge that trey
were to be sold by defendant In VIOLA
ton of said law. 10 insufficient as de-
Tense to the maintenance of the suit, In
that 1t does not aver that the liquors
were sold by the defendant In the dis
trict where the prohibition relied on OBJ
tanned, and does not aver the participa-
ton by the plaintiffs in the alleged ilie-
gal purpose Of the de-:ndant.
4. Same; same: same.--In an action on
a note. a plea averring that 1t was given
for liquors sold by plaintiffs to defend
ant; that at the time there was a law
prohibiting the sale ow liquor In l.
County: that said liquor was bought BY
defendant for the purpose of selling the
same in l. County. in violation Of said
law; that there was also in force a law
furnishing any person who, within the
limits of any profibitory district solicit
ted or received any orders for liquors; and
that said orders we've received for said
liquors by plaintiffs through their agent,
within the prohibition district above
nan ed, in vioi ton of said law-is pad.
because not ayerring that the orders
taken by said agent were for liquor to be
shipped or sent into such district.
B. Same; same: by what law rShtS of
parties observation-disclosures the act Of
Congress known as the Wilson act,
providing that all liquors transported In
to any. State shall, on arrival there, ne
subject to its laws. and shall not be ex.
empt because in original packages, the
rights of a Georgia liquor dealer shipping
liquors into Alabama pursuant to orders
there obtained by a travelling salesman
are determinable under Alabama laws.
g. Action for price of liquors; admis-
sibility of evidence.-In an action on a
note which was given for the purchase
price Of spirituous, vinous or malt liquors
sold by plaintiff to the defendant. where
defendant seeks to set up as defense
that the liquors were sold by the plain
tiff In violation of the prohibition law.
letter written by the plaintiff to defend
ant stating I'VE notice that the grand
jury reported prohibition failure In your
county. No doubt this will lead to your
obtaining license" was admissible as
tending to- show knowledge on plaintiffs
part that defendant was selling the liquor
they were supplying him in violation Of
law, not only at its date. but also at the
time the liquor was sold.
Reversed and remanded.
Opinion by Mcclellan. c. J.
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
CURES DYSPEPSIA
instant Relief for Collie, Sour stom-
ach, Heartburn, Etc.
HELPS Digest FOOD, CURES
SICK HEADACHE.

II has remained for an Atlanta (cal
doctor and specialist to find a real cure
for chronic dyspepsia. and that Ia DR.
Tyner's Dyspepsia Remedy. Taken In a
glass OF very hot water. after each meal
Tyner's Dyspepsia Remedy will greatly
ala digestion-especially the digestion of
the lower bowels-and II this treatment
a persisted in for two or three weeks n
will positively cure the worst dyspepsia
Me Kind that has hung on the victim for
aars. Tyner's Dyspepsia Remedy Is
lrfectiy harmless. and a delightful tonic.
ZEN for very young children. For sum
nler complaints. collie and teethinK
Tyneris Dyspepsia Remedy Is superior to
any other medicine. For sour stomach
ana heartburn 1t gives instant relief. and
4. anal perfect cure Is promised If Tyner's
nvspepsia Remedy Is used long enough.
Try this cure. 1t has been used by DR..
Tyner for past Is years in Private Prac-
lice. ana always with the happiest re-
cults. Cost so cents bottle at all Drug
stores. Trial bottle free for s cents to
nay for postage. TYNER'S DYSPEPSIA
REMEDY CO.. Atlanta, Ga
% eu-Wed
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
THE LEGISLATURE.
The Senator'S and Members Who
Were Nominated.
"a Commerce St.


The Legislature meets on the second
Tuesday in January and below VIII be
found a list Of Senators who hold over In
the odd districts and the Democratic
nominees In the even districts and the
nominees for the House Of Representa-
fives:
First District, Lauderdaie and Lime
uforc--H r. Kennedy, Florence.
Second District, Lawrence and Morgan
O. A.. Lynn. Decatur.
Third District Blount. cullman and
w1nston-R. l.. Hipp. Hanccville
Fourth District. Ma iison-R. e. Sprag-
eins. Huntsville.
Fifth District. Jackson and Marshall
r. A. Bostick. Guntersvilie.
sixth District, Etowah and st. Clair
Not nominated
Seventh District. Calhoun--F. l.. BLACK
mon. Admission.
Eighth District. TaIladega-w. B. Cas-
tieberry. Talladega.
Ninth District, Chambers and Ran
doiph--J. d. Norman, Lanette
Tenth District. Tallapoosa and Elmore-
w. l.. Lancaster. Wetuhnpka.
Eleventh District Tuscaloosa-George
ID. Johnston. Tuscaloosa.
Twelfth District, Fayette, Lamar and
Walker--C. C. NeSmith. Vernon.
Thirteenth District, Jenerson-Hugh r.
Morrow. Birmingham.
Fourteenth District. Pickens and Sum
eer--John Al Rodgers Gainesville.
Fifteenth District, Autauga. Chiffon
ana shelby--W. r. Oliver. Calera.
Sixteenth District. Lowndes-Joseph
Norwood. Fort Deposit.
Seventeenth District. Butler, Conecuh
and Covington--D. NJ. Powell, Greenville.
Eighteenth District. Bibb and Perry
w. r. Hogue. Marion.
Nineteenth District, Choctaw. Clarke
ana washington-W. d. Dunn. Grove
xziil.
twentieth District, Marengo-S. G.
fyolff, DemopoNs.
Twerty-first District, Baldwin, Escam-
bia and Monroe-D. d. Hall. Montgomery
|. x1iil
Twenty-second District, wilcox-W. C.
Jones. Camden.
Twenty-third District, Dale and &C.
nera-- Walter U. AGREE. Newton.
Twenty-fourth District. Barhour-E. p.
Thomas. Clayton.
Twenty-fifth District, Coffee. Crenshaw
and Pike-R. H. Arlington. Elba.
Twenty-sixth District. Bullock and Ma
cont. g. Fraser. Union Springs.
Twenty-seventh District. Lee and Rus
eeli--George p. Harrison. Opelika.
Twenty-eighth District, Montgomery
D. II. Screws, Montgomery.
Twenty-ninth District-Cherokee and
DeKalb--L. B. Stone, Centre.
rhirtieth District, Dallas-W. b Craig.
Selma
Thirfy-fi.st District-Colbert. Franklin
and Marion-W. I. Bullock. Russellville.
Thirty-second District. Greene and Hale
Wv. e. Spencer, GALLON.
Thirty-third District. Mobile-Joel w.
Goidsby. Mobile.
Thirty-fourth District. Cleburne. Clay
ana Coosa-Moore and Smith to run of.
Thirty-Afth District. Henry-W. o.
Long
The House.
Autauga-J. A. Wilkinson, Prattville.
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
STEPHENSON v. HARRIS.

Bill in Equity to correct Misdescription
of Property.-Appeal from the Chan
Gerry Court of Morgan.
l. Reformation of description of prop
erty; when bill can not be maintained
therefor.-When a mortgage misdescribes
the property intended to be mortgaged.
the mistake may be corrected by a prop
er proceeding before a judicial foreclos-
ure; but If the mistake has been carried
into a bill filed for the purpose of fore
closing said mortgage. into the decree
ordering the foreclosure, into the adver-
tisement and registers deed and into the
order confirming the sale by the court.
the purchaser at such foreclosure sale
cannot maintain bill in equity to cor
rect the misdescription of the land as
contained in the mortgage. in the decree
In the subsequent proceedings, and In the
registers deed.
Reversed and remanded.
Opinion by HARRISON, J.
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
DEAN v. OLIVER.

DEAN v. OLlN En-
Bill in Equity to Cancel Deed for Fraud:
Appeal from the Chancery Court OF
Perry.
l. Equity Jurisdiction; cancellation OF
deed for fraud. right must be asserted
promptly.-Befo5e a court of equity will
rescind a contract or cancel a deed be-
cause of fraud or fraudulent representa-
ton in Its procurement, there must be
established by clear and convincing evil
dence and the party seeking relief must
be diligent In the entertainment of the
fraud and must assert the right to the
rescission or cancellation with prompt
ness after such ascertainment.
2. Same: same; same: case at bar. =
Complainant decided land to defendant
tntestate in November. 1895. and filed a
bill to cancel the game in January. 1893
alleging that the sole consideration was
the vendee's promise to convey certain
other land to him, and that he did not
intend at the time to do so. and had
never done So 1t did not appear that
complainant had ever requested deed
from the vendee up to the time Of his
death, over two years later. or that he
ever made known to the vendee's admin
istrator his claim against the estate UNI
til November, 1898, when the land was
sold to pay the vendees debts. The
complainant did not show when COM
plainant fist ascertained that his vendee
did not intend to execute the deed as
promised. Held: That in such case the
complainant had failed to make 1t appear
that he acted with reasonable diligence
to ascertain the alleged fraud and was
prompt to avail himself Of the rescission
or cancellation in consequence thereof.
and that. therefore. he was not entitled
to the relief prayed.
Reversed and rendered.
Opinion by HARRISON. J.
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
CLEWIS V. MALONE.

Action of Trespass. 1-Appeal from the
Circuit Court of Henry.
l. Action of trespass; admissibility of
evidence.-In an action of trespass to re-
cover damages for the wrongful taking
of personal property, where one of the
principal issues involved is whether the
property sold by the sheriff under at
tachment brought its fair value. It is
competent for the sheriff to testify how
many times such property was offered
for sale under the attachment before 1t
was Sold
2 Same: same-In such a case the
fact that the attorney for the plaintiff
in attachment was present at the sale
of the property levied upon. and allowed
such property to be sold for the price
bid by strangers, is immateral. irrele-
want and inadmssible, it not being shown
that such attorney had authority to bid
at the sale for his client.
g. Evidence; when error in ruling
thereon considered prejudicial.-Where
the court errs in refusing to allow a
proper question to be asked a witness,
such ruling will be held to he prejudicial
to the opposing party, unless the con-
trary affirmatively appears.
e. Action OF trespass; charge to the
jury.-In an action of trespass to recover
damages for the wrongful taking of prop
erty under writ of attachment. where
the plaintiff claims to have been the pur-
chaser of property which was exempt
TO the seller. a charge requested by the
defendants which instructs the jury that
IL they should ascertain from the evil
dence that the goods involved in this
suit are worth more than $1,000. then the
plaintiff can not recover in this case,
unless they are reasonably satisfied that
the seller owed plaintiff an honest and
fair debt of $1,000. and what 1t consisted
of and how 1t was due, and that the
goods were sold at their fair and ade-
quate value, and that the seller reserved
no interest in said goods" is erroneous,
misleading and properly refused.
Reversed and remanded.
Opinion nv Mcclellan c. ],
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
SCOTT. EXEC. v. REEVES.

SCOTT, EXEC. v. REEVES.
Bill in Equity against Guardian ard his
Sureties for an ccounting.-Appeal
from the Chanccry Court of Mont
gomery.
I. Guardian and ward; proper parties
to bill by ward against guardian.-A blu
by a ward seeking an accounting and to
recover for the INSTRUMENTATION by
the guardian of the wards estate and
Tor the breach of the trust by wrong
full investment of the property received
by the guardian, seeks decree against
the guardian as an individual. and Is
properly exhibited against him In that
capacity and not as guardian: and the
sureties on his bond are properly joined
as respondents with the guardian.
. Same: breach OF trust.-Where a
guardian uses the entire corpus OF his
wards estate to MAXI partial payment
upon real property purchased, obtaining
therefor a bond for title and agrees to
nav the other instruments of the pur-
chase price before the deed should be
delivered, such investment is beyond the
power of the guardian and renders him
and his sureties liable for the unauthor-
lied expenditure.
Affirmed.
Opinion nv Mcclellan c. ].
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
opinion by Dowdell. j.

SMITH ct al. " PHILLIPS ct al
Statutory action of ejectment-App9a cal
from the Circuit Court of Macon
1. VIII: construction thereof.-under a
devise Of a will, wherein the testatrix
,ave and beaueathed to her beloved hus-
band my present residence as
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
LOUISVILLE & NASHVILLE RAIL
ROAD CO. v. SHARP.

ROAD co, V. SHARP.
Statutory trial of the right of property
Appeal from the Circuit Court of
Montgomery.
!. Garnishment; interposition of claim
by third person: defense.-Where dept
has been garnished and claim thereto
Is interposed by third person as pro-
vided by section 22O0 of the Code, an
issue is made up in the claim suit as pro-
vided by statute Code, Sec. 4l22) the
plaintiff. on whom is placed the burden
Of proof, after showing a prima facie
case. may, without special plea show In
rebuttal TO the case made by claimant,
any facts which would be a good defense
to the claim of the claimant, whether
by estoppel or otherwise.
Affirmed.
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
Opinion by Tyson, ].
LOUISVILLE & NASHVILLE RAIL-
ROAD CO. Y. BURLINGTON.

LOUISVILLE & NASHVILLE RAIL-
ROAD CO., " BURLINGTON.
Action of ssumpsit.-Appeal from the
Circuit Court of Conecuh
/. Principal and agent; responsibility
of agent for loss by burglary Of money
collected-Where, in the absence of any
special agreement to act as the insurer of
monies collected by him, an agent for
the collection of money, who not being
able to remit it the day 1t was collected
locked it up in an iron safe which be-
longed to his principal, and which he
found in the principals Office when he
took charge thereof as agent and then
fastened the doors and window of the
office and left it for the night. such
agent is not lacking in the exercise of or
binary diligence, so as to make him res
ponsible for the loss of the money that
night by burglary; and such facts pre-
cent defense to the recovery of such
money from said agent,
Affirmed
Opinion by Tyson. j.
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
And Gizzard, TooP

Atchison Globe.
good guest to entertain is one who
likes every part of the chicken, from the
neck to the backbone.
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24

II your food does not digest we'll, a
few doses OF Priekly Ash Bitters will set
matters right. II sweetens- the breath,
stimulates the stomach and digestion, Gre
ates appetite and cheerfulness.
adv-wed- fri-sun,
The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-09-24
Consumers
= 50
Gas for Cooking
Purposes

who will make a change in
residence on aboutOctober
lst next will please notify
this office giving Street and
Number of new location.
We desire this information in
order to enable us to make
promptly, and ahead of time
if possible, such changes in
connections as may be
necessary, and to avoid the
inevitable rush and crowding
at that time.