The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1903-03-20
Opinions Rendered
By Supreme Court

Sharp. ct al. vs. Marcus,-Bill In Equity
TO EnJoin Obstruction Of an Alleyway;-
Appeal from the city Court of Mont
gomery, IN Equity.
l. Easement; how established by pre-
seription.-In order for an easement to be
established by prescription, the use and
enjoyment and the right claimed must
have been adverse to the owner OF the
estate from which the easement Is claim
ed under the claim of right adverse, ex-
elusive, continuous and uninterrupted.
and with knowledge and aequiescence by
the person against whom it is claimed;
and the user of right which is merely
permissive or held under an implied Ii
eense from the owner of the estate can
never ripen into a title by prescription.
Affirmed. Opinion by HARRISON, J.
Wooten, ct al Us. Hecker, Register, &c.
Proceedings in Chancery Court to Tax
Costs Appeal From the Chancery
Court of Marengo.
l. Appeal; effect of decree rendered in
Supreme court: subsequent proceedings
as to costs.Where from a decree of the
chancery court an appeal is taken, and
the Supreme court reverses the decree
of the chancellor and renders a decree
Diminishing the appeal and directing that
the complainants shall pay all the costs.
such appeal and final disposition of the
suit does not take away from the Chan
Gerry court jurisdiction to subsequently
entertain petition of the register setting
out that the execution for costs against
the complainants had been returned no
property found and asking for an order
directing that the defendants be taxed
with the costs incurred by them in said
suit, in accordance with Rule Ill of
chancery practice. Code, p 122O; and 1t
is not error for the Chancery court to
grant the order as prayed for in such pc
tition.
Affirmed Opinion by Sharp, J.
Mansur & Tebbetts Implement Co. VS..
The Tissier Arms & Hardware Co..
Action to Recover Damages for the
Breach of a ract;-Appeal From
the City Court of Selma.
l. Damages; when stipulated damages
constitute penalty and not liquidated
damages.-Where a merchant in ordering
goods from manufacturer enters into
an agreement to pay 20 per cent. of the
invoice price of the goods ordered If he
should eountermand the order in whole
or any part or delay the order beyond
the then season, the amount so stipulated
in the contract to be paid is a penalty
and not liquidated damages.
Affirmed Opinion by Dowdell. J.
Peck-Hammond Company vs. Heifner:-
Action Upon Breach of Contracts APP
peal From the City Court of Montgom-
cry.
!. Breach of contract; damages re-
coverable.-Where a manufacturing COM
pany and builder enter into contract
by the terms of which the former is to
furnish and put in place heating appar-
atus in house which the latter was I'M
der contract to build. and the latter was
to pay therefor a stipulated sum. ana
this contract is subsequently repudiated
by the builder and it's performance by
the manufacturer Is prevented. though
the manufacturer was at all times ready,
able and willing to perform his part of the
contract: for such breach of the contract
by the builder. the manufacturer is en-
titled to recover the profits that would
have accrued to him from the fun per-
Torrance of the contract.
Reversed and remanded. Opinion by
Mcclellan, c. j.
Mobile & Ohio Railroad Co. VS.. Logan,
Admir-; : Action by Administrator
Against Railroad Company to Recover
Damages for the Killing of Intestate;-
Appeal From the Circuit Court of Bib.
l. Pleading and practice; right OF
amendment-Where a complaint as orig
inally filed proceeds in the name of l..
as administrator of Casper Rosenalger.
deceased" and claims damages for the
death of the intestate, and 1t develops
on the trial that the dead mans name
was Casper Rosenllanger," and that l..
the plaintiff. had been appointed admin
istrator of Casper Rosenlanger, and
that the cause of action for which the
suit was brought and which was being
tried was the alleged wrong of the de-
PENDANT resulting in the death of Rosen-
Hanger. and that l.. had not been APP
pointed administrator of Casper Rosen-
Hanger, it is proper for the court on mo-
ton of the plaintiff. to allow him to
amend the complaint by striking out the
name of Casper Rosenllanger wherever 1t
appears, and inserting In lieu thereof the
name of Casper Rosenllanger.
Affirmed. Opinion by Mcclellan, C. J.
Davis VS.. The State;-Indictment for
Murder Appeal From the Circuit Court