The Birmingham age-herald., 1904-05-17

evidence?"
 'I would not"
 "we will waive the last statement made by MT. Boon," said Attorney H. K White' representing the state with Assistant so- licitor D. W. Winston, and we will ac- oept MT. Boon" He was also accepted by the defense. and took his seat in the jury box.
 It is quite seldom when anyone, who states in open court that he would not convict on circumstantial evidence, when the qualification questions are being asked by the court, is accepted as juror by the attorneys for the prosecution, unless the challenges on that side have ex- hausted
  nished to the inhabitants of Birming- ham, and for manufacturing purposes, by measurement in all cases, excep, where special provision was otherwise made. The only case where water TUT nished to the inhabitants is not to be charged for by measurement are speci- fled in the first part of section 12, supra, and include only dwellings and then for water closets and bath tubs for private families. For these the contract fixes a definite amount for water fur nished, without regard to measurement
 Construction of Contract.
 "As I construe this contract, the only question which remains to be considered, ia whether the term dwelling as used in the contract includes the lawn and garden surrounding 1t.
 "In 10 Am. & Eng Ency. of Law S5S 1t Is said: Tn it's common acceptation, a mans dwelling house is the house in which he resides-the house of his pres- ' ent abode; the apartments, building or cluster of buildings in which man with his family resides
 Many illustrations are given In the notes on page 354 is said:
 " An act provided that no ground not already used as cemetery should De used for burials within the distance of l one hundred yards from any dwelling house without the consent of the owner, etc. thereof. It was held that the words dwelling house did not for the purposes of the act, include the curtilage, and | therefore that the specified distance must be measured from the walls of the dwell- l ing house. Wright vs. Wallasey, local board, IS Q. B. Div. 7S3.
 Again 1t Is said the term dwelling house, as here used, meant only the house | ana lnCluQeu no part OA thC boidtht VI chard or curtilage. The court said: Tf the word dwelling house have a technical meaning, it has also common meaning such as building inhabited by man l (Bouvier); the house in which one lives, We think the legislature in the enact ment of our statutes must have under stood the term dwelling house as having a common and not peculiar or techni- cal meaning; otherwise burglary may be 1 Fol1 tra Lfn0 and entry in the night time Into a garden or curtilage, or civil process served by leaving copy in the debtors garden or l dooryard, as his last and usual place of | abode Wells vs. Somerset, etc. R. Co' l 47 Me. 34'.
 1 So in Henry vs. the State, S9 Ala. SIS | 1t was held that stealing clothes from the railing or bansters of piazza at- 1 tached to a dwelling house, did not con- stitute the offense of larceny in dwell- ing house.
 ''I gather from the authorities collect ed in the notes to 10 Am. and Eng. Ency. of Law. 363 that the term dwelling IS included in the generic term building, the question in nearly all the instances | being whether the use to which the build- l ing was put made 1t a dwelling.
 'In legal phraseology the term 'curti- I lage' Is used to designate the ground | lying near and used with the house and necessary for it's convenient occupation. I cannot give the word dwelling as em- | ployed in the ordinance contract, mean l ing which it does not have either in It's ordinary or technical use.
 "I do not think that the contract has been violated. and I will make an order | discharging the defendant. l (Signed) 'L. c. LEADBEATER."
 To Higher Courts. City Attorney Edward D. Smith stated last night that he had been furnished with copy of the decision of Special | Judge Leadbeater. and said ...at the matter will probably be carried to the su- preme court. He said. however, that in- asmuch as the Foster case was a criminal proceeding that the city of Birmingham could not carry it to the supreme court in | the present shape. He said, however, that the chancery bill soon to be filed against the Birmingham Water Works company will include the lawn sprink- 1 ling phase of the case.
 At the regular semi-monthly meeting Of the city council tomorrow night 1t Is ex- i pected that authority will be given the city attorney to file the bill in chancery. Just as soon as this is done Capt Smith will immediately prepare the document. 1 An unsuccessful effort was made last night to see Mayor Drennen about the matter.