The Montgomery advertiser., 1906-08-09

rre.Syi " '.' ooWueH anu bensont ". K. sYsoN TIMBER co V. DICK EMS.
 Trespass--(D Decided April 29, lso6.)- 1 GAO So. Rep. 753.
 l. Pleading; demurrer: pleading over after demurrer: overruied. The and the demurrer overruled; the com plaint was amended afterwards. but | demurrer was not filed to the com plafnt as amended, nor was the orig l inal demurrer filed; Held, that appel iant may not complain of the courts action in overruiing the original de- murrer.
 3. Trespass; pIeadings: issues; proof; variance.-Proof of a trespass \ to boom on a lake where 1t ap- ! pears that the lake was a part of the | creek and that the boom was across | a part of the lake, was not at vari- ance with the complaint for trespass to boom in the creek.
 | 3. Trial; jury question: weight of evidence Where the complaint com piained of trespass to boom by one acting for defendant company, | and the evidence was in conflict as to | whether such person was so acting | 1t became question for the jury, and the defendant was not entitled to the l general charge.
 I~ 4. Trespass; damages-The reason- | able amount expended in using all | proper means to reduce the damage as | much as possible constitutes a proper | part of the damages recoverable in | an action of trespass in breaking a boom and removing timber and logs l therefrom.
 5. Judgment; res adjudicata.-e.A l former recovery of damages in tro- | yer, and satisfaction of such judg- l ment. is a bar to an action of detinue between the parties for the same prop l erty.
 6. Trespass; persons entitled to sue
 -Trespass Is the proper action to re- | cover for a wrong against the pos session. and one having the rightful bpossession of property, although the title be in another may maintain tres pass for wrong dune such property. -ls .. Trespass; defenses; title in third II parfies.--One in possession of per sonal property Is pritna facie the own CT, and the presumption, of ownership therein may not be disputed by a trespasser who does not connect him. self with the true title.
 Appeal from Mobile Circuit Court.
 Heard before Hon Samuel B Browne Reversed and remanded. Opinion by Haralson, J. Weakley. c. j., and Dowdell and Denson, JJ, concur. N
 RAINEs V. STATE.
 Murder -(Decided April 2s. 1908 l--
 (40 So. Rep, 932.)
 l. Indictment and information; mo- tion to quasl; grounds,--It is not good | grounds upon which to quash an in dictment that the minutes failed to show the appointment of foreman, and also failed to show that fifteen persons served upon the grand jury 1 that found the indictment, especially when this omission was supplied at l an adjourned term of the court
 g. Judy; motion to quash venire.-- l Under the act approved February 1g 1897 (Acts. 1s96-s7, p. 124s). a mo- tion to quash the venire filed on the day set for the trial of the case, comes to olate, although defendant had a motion to quash the indictment on file in ttime, and he motion was not dis ] posed of at the time of the filing of the motion to quash the venire
 Criminal law; continuance; dis cretion of court--It is within the sound discretion of the court to grant or refuse an application for contin- uance of a cause.
 4. Same; absent witness; showing. The failure of the defendant to com ply with Rule 16 of Circuit Court practice in the prepaiation of show ing as to the testimony of an absent witness relieves the court from put ting the State upon such a showing
 5. Same; objections to evidence: mo- ton to exclude \ answer-Where a question is asked, part of which may call for relevant and part for irrele- want testimony, an objection that the | question is Illegal and iminateriaP' is too general and properly overruled {: and where motion Is made to exclude the answer, on the same grounds, un- less the entire answer Is patently bad or unresponsive to the question such motion is properly overruled
 s. Witnesses; contradiction.-Whe | a witness admits, on examination, hav- | ing made a statement different from his present testimony, it is not error to refuse to permit questions to such l iwtness with reference to such state | ment for the purpose of Impeachment, nor to refuse to allow fmpeaehlng tes- 1 timony, as it is merely cumulative. and the defendant has the benefit of such evidence under the admission
 T. Homicide; trial; instructions, - It is not error to charge that mere words. however offensive, cannot re- duce the offense of homicide to man | slaughter but only to murder in the secord degree, especially where the conviction was for manslaughter.
 S. Same: same.--A charge asserting that one who did not start the fuss Il and could not retreat without increas- ing his danger was not required to run, was properly refused
 Apeai from Monroe Circuit Court
 Heard before Hon. John T. LpackIand | Afirmed Opinion by Denson, |. . Haralson. Tyson and Dowdell, JJ.. concur.
 COOPER " GAMBILL | Ha.1 "a