The Montgomery advertiser., 1906-08-09

the first degree "A charge asserting l that if defendant went with his gun | for the purpose of killing deceased. waited until deceased came and then killed him, defendant was guilty of ] murder in the first degree. provided I the jury had fixed conviction of these facts, from the evidence. cor l rectly states the law. 8. Criminal law: agreement of jury; instructions.-~A charge asserting that
 all the jury must agree before the de- fendant could be acquitted or. convict | ed is. proper.
 ! 44. Same; ,. reasonable doubt--A I doubt to acquit must be an actual substantial doubt. not mere possi- | ble doubt; and 1t must grow out or I the evidence after considering all the 1 evidence
 5. Same: instructions argumenta- | tive; emphasizing portions of the evf- dence.--Charges intended merely as an answer to argument of the solicitor, I and charges singling out or empira- | sizing portions of tie evidence are | properly refused.
 6. Homicide: self defense; instruc- tions.-CharEes invoking the doctrine | of self defense which ignore freedom | from fault in bringing on the difficult 1 ty. not hypothesizing danger. real or apparent, or the duty to retreat are N T. Same; question of law and fact; deadly weapon-The question of 1 whether a weapon is deadly or not is generally question of law for the court; but whether a rock is deadly weapon or not is a mixed question ! of law and fact proper to be submit- ted to the determination of the jury 1 under proper instructions from the | court
 s. Same: instructions: self-defense. IA charge that ''the law will justify \ the taking of human life to prevent a felonious assault on the person." is bad and properly refused Appeal from Limestone Circuit | Court.
 Heard before Hon. D. ". speake. Affirmed. Opinion, by Haralson. J. | weakley. c. J and powdeli and Dem
 son JJ.. concur . | WILSON V. LOUISVILLE AND NASH. VILE R. R. co.
 Action for Damages for Personal In jury (Decided April 20, 1906) (4t So. Rep 941.)
 Railroads; frightening animals; mu- nieipal ordinances; complaint; sufficien- cy--A complaint which alleges the vio- lation by the defendant railroad of an l ordinance prohibiting the blocking oi any public streets for more than five
 minutes at time. wheteby pIaintiff's team, when near the crossing, became Enlightened and ran away injuring plain. tiff. was demurrable as showing no cas- ual connection between the injuries
 sustained and the violation of the orli- nance.
 Appeal from Chiffon Circuit Court Heard before Hon. s. L. Brewer. Reversed and Remanded. Opinion hy
 wsakIey. c. J. Dowdell and Dcnson.
 JI-. concur
 WILLIAMS ct al V. NEAL, ct sl !, Bin to Abate Purchase Price for Fraud and Misrepresentation and to Com pei Conveyance.-(Decide April f9. 1S06--(40 So. Rep. 943l i. Equity; pleading: motion to dis miss bill for want of equity--A motion | to dismiss a Dill for want of equity
 does not raise question as to the
 suficiency of the bill This Is the offlce i of demurrerer. The question present | ed by motion to dismiss Is, granting all amendable defects cured. does the
 bill on the facts stated therein contain | equityf
 2. Vendor and purchaser; abatement | of price; misrepresentation-A purchas- CT in possession under contract to con vey may have an abatement of the | purchase price for fraud or misrep- resentation by the vendor fin the sale
 of the land, and compel conveyance by bill
 Appeal from Pike chancery Court
 Heard before Hon. W. L. Parks. Afirmed Opinion by Dowdell, , Weakley. c. J, Haralson and Denson
 U. concur.
 DANIEL BROS V. JORDAN & SON. Detinue--(Decided April 20, 1905. ) -(40 So. Pep. s41.)
 1. Detinue; demand; damages for -detention.-Where one who holds prop | ertv by virtue of a recovery of the same in suit of detinue. such one IS not a trespasser in his possession as
 to subsequent mortgagee, and before said subsequent mortgagee can re- cover damages for detention of the property as. against such prior mort | gagee in possession, demand is mecca sary before service of the writ 2 Judgement; conclusiveness; parties
 Where a second mortgagee of chattels was not a party to a suit in detinue
 by a prior mortgagee against strang- ! CT for their recovery, Judgement in
 favor of the first mortgagee for the chattels does not conclude nor affect the rights of the second mortgagee.
 B. Chattel mortgages; renewal; pay i ment---It is a question of fact in the | intention of parties, whether second
 mortgage given in renewal of a prior
 mortgage operates as a payment and 1 satisfaction of the prior mortgage or not
 Appeal from Cherokee Cipcuit Court Heard before Hon. W. w. Haral son
 Reversed and remanded. Opinion hy
 Dowdell. J Weakley, c. J.. Haralson
 and Denson. JJ.. concur
 BIBB V. GAsToN, JUDGE OF PRO BATE.
 Mandamus.-(Decided April IT, 1906. ] 40 so Rep. 937)
 | 1. Madamus; nature or remedy: discretion of court.--Mandamus Is not
 a writ of right. and its granting or denial rests largely in the discretion
 of the court. It will not be granted
 where 1t would work injustice. or con-
 fusion and disorder, or where its is-
 suance would prove unavalling. g. Wills: probate; hearing; con-
 tinuance.-Where there was a pending | application for the probate of a prior will, from which application an appeal