The Montgomery advertiser., 1904-05-15
STATE SUPREME COURT
HEADNoTEs OF DECISIONS.
WESTERN UNION TELEGRAPH e
 .x rnryxErrnN

WESTERN UNION TELEGRAPH co.
 V. CRUMPTON.
 Action Against Telegraph Company for
 Failure to Promptly Transmit ana
 Deliver Message.-Appeal from the
 Circuit Court of Conecuh.
 1. Plea in abatement; pendency ot suit; when nsuficient---Where two separate suits are brought against telegraph company to recover for the breach of contract to promptly trans nit and deliver messages, ana the mes sages counted upon in each suit was sent from a different place, the fact that the character of the damases claimed was the same ana tnas tne messages were sent within rev nouIs of each other, concerning the same mat ter. Is not sufficient to make the pen dency of one of the suits bar to the maintenance of the other. and piea m abatement setting up the pendency or one of the suits presents no par to the maintenance of the other.
 Ea. Pleading and practice; how objec- tion to amendment should Dc raiseo.- The appropriate way to raise the aues- ton as to the propriety Of allowing an amendment to a compialhl s.x x demurrer to the complaint as amenoed' but by objection and exception to the allowance of the amendment, or by motion to strike.
 8. Same; when no misjoinder by ad- ding counts setting forth different form oc action; telegraph company Where, in an action brought against telegraph company to recover damages for the alleged breach of contract 10 promptly transmit and deliver mes sage. the complaint is amended by ad- ding thereto counts which seek to re-, cover similar damages for the breach of a contract to transmit and deliver message, sent from a different place than the message, counted upon in the original complaint was alleged to have been sent from. such amendment does not constitute misjoinder (Code. Sec. 3292).
 {. Suit against telegraph company; when action ex contractu,-Where. in an action against a telegraph company for the failure to promptly transmit and deliver message, each of tho counts of the complaint claims dam ages flor the breach of contract made by the plaintiff and the defend. ant" by which the defendant under took to transmit and deliver the mes sage which is set out at length. and ayers that the contract was broken by the defendant in that it "negligently failed to transmit and deliver" said message, or failed to transmit and de- liver said messages. and that 'by req son of tho negligent failure of duty, or "by reason of the failure of duty. on the part of the defendant, the plain tin suffered the injuries complained Of, state a cause of action ex contractu, and the averments of negligence are merely descriptive of the mode In which the contract was broken.
 5. Action against telegraph company; authority of agent to bind company, in disregard of regulation.--In an action against telegraph company to recov- er damages for the breach sof a con- tract, by failing to promptly transmit and deliver a message, when the evi- dence shows that the transaction be- tween the plaintiff and the defendants agent involved an agreement for tho prompt transmission of a message, 1t will be presumed, nothing appearing to the contrary, that such agent had authority to bind the telegraph com pany to promptly transmit and deliver tbe massage, even though such trans mission and delivery could have been accomplished only by dfsregarding a regulation as to the hours of opening and closing the defendants office at the terminal point of the message.
 6. Action against telegraph company; when special damages for mental an- guish recoverable.-When. in an action against a telegraph company to recover damag ges for the breach of contract to deliver a message it is shown that the telegram relates to the sickness or death of parent of the sender, if the plaintiff Is entitled to recover the damages resulting directly and proxi- mately from the breach complained of. ne is also entitled to recover such spe- cial damages for mental suffering and anguish as, in the determination of the jury, he may be shown to have sus- tained.
 Affirmed.
 Opinion by Sharpe. J.
 PATTON V. MONROE, ADMR. EFT
 AIS.
 Bill in equity to have administration
 of estate moved into Court of
 Chancery. Appeal from the City
 Court of Birmingham, in equity.
 1. Equity jurisdictions; transfer of jurisdiction of estate from probate to chancery court.-Where a proper case is presented for the removal of the ad- ministration of an estate from the pro- bate into the chancery court, such ad- ministration can be removed only into the court of chancery of the county in whose probate court such administra- tion was pending; the chancery court of no other county in the State having jurisdiction thereof.
 Affirmed.
 Opinion by Haralson, J.
 HAYNESWORTH & CO, V. ADLER. Action of assumpsit. Appeal from the
 Circuit Court of Jefferson.
 1. Contract; conditions precedent must be performed.-Where a contract requires the performance by one of the parties of certain acts as a condition precedent to the enjoyment of his rights under the contract, such condi- tions precedent must be strictly and specifically and literally performed, and when there is more than one con- dition precedent, or such conditions are copulative, and the act to be performed consists of doing several particulars, all of the conditions or all of the sev- eral particulars must be performed be- fore any rights under the contract can arise.
 Affirmed.
 Opinion by Haralson. J.
 STATE FIX REL. GARRETT V. SAW
 YER.
 Quo warranto proceeding. Appeal from
 the City Court of Anniston.
 1. County precincts or beats; Legis- lature has power to create and abolish same.-The Legislature having the authority to create or establish pre- cincts of a county by or through the court of County Commissioners or by direct legislative enactment, it is like wise within the legislative power to