The Montgomery advertiser., 1908-11-04

W v - showing that the property was listed In the name of Stodenmelr.
 5. Witnesses; impeachment; cross examination-Where one testified as to his marriage and co-habitation with defendant, 1t was competent, on cross examination. to inquire of him if he had not held himself out to others as an unmarried man. and, on proper predicate laid, to show any transactions in which he had held himself out as being unmarried.
 6. sEstoppel in pals: legal title to land.-The equitable doctrine of estop- pei. in n4pais has no application to the legal title to land in a court of law.
 Appeal from Jefferson Circuit Court Heard before Hon. A. A. Coleman.
 Reversed and remanded. Opinion by
 Dowell J.
 Tyson.ec.- J. Simpson and Anderson. J J. concur
 SIMS VI MOBILE J. & K. c. R. R. tt .ge COMPANY.
 Ejectment.-(Decided April 23 1908.
 46 South. 494.)
 1. Judgment; conclusiveness: par ties concluded. The recitals in a chancery proceeding that the parties therein named. are the parties com posing a certain firm, etc, are not ev- idence of the facts therein recited as against other parties not parties to the suit. Jsss
 2. Judiciar sale: validity of deed under Where a decree made fifty years ago, which did not order a deed to be made. but simply barred T the equity of redemption and ordered that the purchaser be let into possession, a deed made hereunder is invalid and nt Qd frs ing.
 3. Same; deed to supposed heirs.- A deed made by a register in chancery, fifty. years after the date of the de- cree. to the supposed heirs of the pur- chaser under the decree, is invalid. as 1t could only be executed by order of the court after judicial determination as, to. who are the heirs of the pur- chaser. :. s
 Appeal from Mobile Circuit Court.
 Heard before Hon.. Samuel B. Browne. s-s
 Affirmed. Opinion by Simpson, J.
 Tyson, c. J.. and Dowdeli and Mo. Clelan. U ,, concur.
 CAMPBELL V. THE STATE. Violating Contract. Decided April
 23. 1908. AS South: 520.)
 l. False pretense; violating written contract; evidence Where the pros- ecution was had under Section 4730, Code, 1896, as amended by General Acts, 1903, page 34S. and the affidavit charged the defendant with having ob- tained suit of clothes of a named value and a watch and chain of named value. the contract under which they were obtained was properly admit ted in evidence, although 1t recited that defendant was at hard labor with one B and had served out his sent ence, and the other party to the con- tract had paid up the costs, amounting to a giveE sum, none of which was charged in the affidavit; the contract being an entire instrument no part of it could be properly excluded
 2. Same.-Where the affidavit al- legged a refusal to perform the ser- vices required by the contract on the part of defendant, 1t Is not supported by proof of the mere failure to per~ form.
 8. Same; instruction.-A charge as- serting that unless the jury believe from the evidence that defendant had the intention of defrauding his em- ployer at the time he made the con- tract. the jury could not convict, re- gardless of what purpose or intent he afterwards formed. correctly sttaes the law.
 Appeal from Wilcox Circuit Court.
 Heard before Hon. William H. flaw kins, Special Judge.
 Reversed and remanded. Opinion by Haralson. ].
 JJ., concur. -. BRYANT V ALABAMA GREAT
 SOUTHERN RAILROAD co.
 Damages for Death of Employe. (De-
 cided April Is. 19OS.-46 South.
 4e4,l ,... office of a demurrer Is to point out specifically the defects in a pleading to which 1t is addressed, so as to in- form the other party of such defects and given him an opportunity of cur ing the same. rt 25ti
 2. Master and servant; liability for injury to servant; complaint; negli- Kence.-A complaint alleging that fn- testates death was caused by. the of defendant, by wantonly, wiIlfully or intentionally using an engine for switching with pilot In front and without a footboard. with the know ledge that intestate would probably be injured thereby, and with reckless diregard of the consequences was not subject to demurrer in that 1t failed to state facts showing negligence re- sulting in plaintiffs injury, or in that the use of the locomotive for switching purposes with pilot in front and with out a foot board was not negligence
 3. Same; assumption of risk: plea; sufflciency.-As an answer to a count framed under subdivision 1. section 1749. Code 1896. counting for a re- covery on a failure to provide a switch engine with a footboard on the engine. or other safe means for protecting switchmen, a plea alleging that the defect complained of and the danger arising therefrom were at and prior to the injury obvious to intestate. and could have been seen or known by a man of ordinary care, in intestate's position, and that the latter, under the circumstances, assumed the risk of in- jury thereform, sufficiently states that the defects and danger were obvious and existed prior to and up to the injury and that knowing this plaintiff remainded in defendants em- ployment, so as to assume the risk, and was not subject to demurrer that 1t did not state facts showing an assumption of risks. and that 1t was not an assumption of risk
 4. Same; contributory negligence; sufflciency of proof.-As an answer to a count charging negligence after dis covery of peril. a plea alleging that Intestate's injuries were caused by his own negligence in going upon the pilot of the moving engine when 1t was not his duty to do so. whereby he