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[Southern Railway Company v. Posten.]

it for thirty or forty feet east of where the mare's body was found; and that fresh bones and blood appeared along that part of the track.

It was shown that the track was straight for a distance, between two hundred and three hundred yards, in each direction from where the mare lay. The one other witness examined testified that he did not see any colt tracks east of the place where the mare was found, but did notice some west of that place. His other testimony was substantially the same as that of the plaintiff. The defendant offered no testimony, but requested the general affirmative charge, which the court refused to give. Defendant excepted to this ruling.

Judgment and verdict were rendered for plaintiff. Defendant appeals, and assigns as error the court's refusal to give the charge as requested by it.

SMITH & WEATHERLY, for appellant, cited Railroad Company v. VanEaton, 11 So. Rep. 111.

M. L. LEATH and McCULLOM & MCGREGOR, contra, cited Kansas City, Memphis & Birmingham R. R. Co. г. Watson, 91 Ala. 483; L. & N. R. R. Co. v. Gentry, 103 Ala. 635; L. & N. R. R. Co. v. Davis, 103 Ala. 661; Alabama Great Southern R. R. Co. v. Boyd, 124 Ala. 525; 27 So. Rep. 408.

DOWDELL, J.-This was an action for damages for the negligent killing by defendant's train of plaintiff's mare and for an injury done to a colt. The cause was tried on the plea of not guilty. The only error assigned is that of the refusal of the court to give the general affirmative charge as requested by defendant. The only evidence offered on the trial was that of the plaintiff and one J. P. Casey, who testified in behalf of the plaintiff. The defendant offered no testimony. Without repeating what was said by these witnesses, we think the facts testified to by them made out a sufficient prima facie case to require the court to submit the question of the negligent killing of the mare and the injury of the colt to the jury. The facts in this case are similar to the facts in the case of the Alabama G. S. R'y. Co. v. Boyd, 124 Ala. 525, and what was there said with reference to the giving or refusal of the general affirmative charge is applicable here; and on the authority of that case the judgment of the circuit court will be affirmed. INDEX.

ACKNOWLEDGMENT.

1. Conveyance of homestead; when wife's acknowledgment in-
sufficient. A certificate of the acknowledgment of the wife
and the conveyance of the homestead, that sne signed the
same of her own free will and accord without fear, con-
straint or "persuasion" of the husband, instead of without
"threats" of her husband, as required by the statute regu-
lating the alienation of the homestead, as insufficient to di-
vest title to the homestead. Marx v. Threet, 340.

ACTION.

1. Pleading and practice; plaintiff not entitled to recover when
there is cause of action stated in the complaint. --- Where it is
shown upon the face of the complaint itself, that it contains
no substantial cause of action, the plaintiff is not entitled to
recover, but the court is authorized to render judgment for the
defendant, regardless of whether objection was taken to the
complaint by demurerr. Jordan v. N., C. & St. L. R., 219.

2. Action upon a contract; what necessary to authorize plaintiff's
recovery. In an action of assumpsit, in which the plaintiff
seeks to recover for cross ties furnished to a railroad com-
pany under a special contract, where it is shown that said
contract provided that the defendant was to pay for such
ties as was inspected and accepted by it, and the evidence
shows that the ties, for the delivery of which the plaintiff
seeks to recover, were not accepted by the defendant, the
plaintiff can not maintain his action, and the defendant is
entitled to the general affirmative charge. So. R. Co. v.
Spragins, 319.

3. Damages; mental suffering; relationship. Where the father of
a sick child sends a telegram summoning his brother-in-
law to the child's bedside, and on account of the negligence
of the company the sendee, who is the child's uncle, does
not receive the telegram in time to reach the child before
its death, and the father sues for damages for mental
anguish and suffering, there can be no recovery, because
there does not exist between the sender, the sendee, and the
person concerning whom the message is sent that close de-
gree of relationship from which natural love and affection
are presumed.-W. Un. Tel. Co. v. Ayres, 391.

4. Trover; what necessary to maintain suit. In order to maintain
an action of trover, the plaintiff must, at the time of the in-
stitution of the suit, have either a general or special property
in the personal property alleged to have been converted, and
if the property right claimed by plaintiff is special or quali-
fied, plaintiff must have, in adition thereto, the right of im-
mediate possession. -Henderson v. Pilley, 548.

AD QUOD DAMNUM.

See EMINENT DOMAIN.
ADVERSE POSSESSION.

1. Relation of mortgagee and mortgagor; right of mortgagor to
set up adverse possession after foreclosure of mortgage.
While a mortgagor does not hold adversely, but holds in
subordination, to the title of the mortgagee, and an alienee
ADVERSE POSSESSION-Continued.

of the mortgagor holds in the same right and can assert
no higher or independent title, still, after the foreclosure
of the mortgage under the power of sale contained therein,
the mortgage becomes functus, and as against a purchaser
at said foreclosure sale, or his alienee, the mortgagor re-
maining in possession, or his alienee, may hold said lands
adversely from the date of said sale, and can set up such
adverse possession as a defense to a subsequent action of
ejectment; and it is immaterial, in the application of this
principle, that the mortgagee became the purchaser at the
foreclosure sale, he being authorized thereto by the mort-
gage. Garren v. Fields, 304.

2. Claim suit; when title vested by adverse possession.-In
a claim suit growing out of an action of detinue brought
by the assignee of a vendor in a conditional sale against
one claiming under his vendee, to recover the possession
of a piano, testimony showing that after default in the
payment of one of the installments of the price of the
piano, which gave the vendor the right to re-take the prop-
erty, the vendee mortgaged the property to a third person,
who thereafter foreclosed said mortgage and became the
purchaser of said property, and that the claimant derived
title from such purchaser under the mortgage, and more
than six years had elapsed since the foreclosure sale be-
fore the institution of the action of detinue, and the pur-
chaser and those claiming under him had claimed to own
the property, is admissible in evidence; since under such
facts the ownership of the property sued for became divested
out of the original vendor in the conditional sale and be-
came vested in the claimant. Grunewald Co. v. Copeland, 345.

3. Ejectment; adverse possession. The possession by a co-termin-
ous owner up to the line believed to be the true line, is not
presumably adverse, but may become so if the claimant
claims it as a true line and holds the property up to it,
claiming it as his own.-Barrett v. Kelly, 378.

4. Same; same. -Actual possession of a part of the tract under
cover of title extending to the whole, is sufficient posses-
sion as to the whole tract, to ripen into title by lapse of
time; and this possession may be held by and through a
tenant. Ib. 378.

AGENCY.

1. Agency; when sufficiently shown to be binding upon principal.
Where a loan is negotiated through an agent, who declares
himself to be the agent of the principal, and the principal
accepts the note and mortgage and subsequently forecloses
the same, the agency of the representative is sufficiently
shown, and knowledge and notice acquired by him in negoti-
ating the loan with the wife that the wife was the surety of
her husband, is binding upon his principal. Russell v. Peavy,
563.

2. Fire insurance; agency; power to waive; condition. An insur-
ance agent with authority to write insurance, collect prem-
iums, and act generally as the company's agent for such pur-
poses, and to make insurance contracts, has power to waive
a condition in a policy written by him providing that any
change in the title or possession of the property would avoid
the policy unless an agreement that such change might be
made was indorsed on the policy. Con. F. Ins. Co. v. Brooks,
614.

3. Same; same; termination of agency. Where a general insur-
ance agent, with authority to waive a condition in a fire
policy forbidding a change in interest or possession, ceased

AGENCY-Continued.

to be the company's agent, a waiver by him of such condi-
tion, after the termination of the agency is binding on the
company, where the insured in good faith relied on his auth-
ority, and had no notice or knowledge of the termination of
the agency.-Ib. 614.

4. Principal and agent; responsibility of agent for loss by burg.
lary of money collected.-Where, in the absence of any spe-
cial agreement to act as the insurer of monies collected by
him, an agent for the collection of money, who not being able
to remit it the day it was collected, locked it up in an iron
safe which belonged to his principal, and which he found in
the principal's office when he took charge thereof as agent,
and then fastened the doors and windows of the office and
left it for the night, such agent is not lacking in the exercise
of ordinary diligence, so as to make him responsible for the
loss of the money that night by burglary; and such facts pre-
sent a defense to the recovery by the principal of such money
from said agent.-L. & N. R. R. Co. v. Buffington, 620.

ALTERATION OF INSTRUMENTS.

1. Deed; alteration after delivery invalid.-When a deed has been
fully executed and delivered, it passes the title to the grantee
therein, which can not thereafter be divested by mere change
in the deed itself, with or without the consent of the grantee.
Gulf Red Cedar L. Co. v. O'Neal, 117.

ALIMONY.

1.

Alimony; petition for collection under a former decree.—Where
a court of equity having granted a decree for divorce and
alimony, reserving the power to control the enforcement and
execution of its decree, renders a decree for unpaid alimony,
upon which decree execution is issued, and the decree, on ac-
count of the poverty of the defendant, provides that no other
or further execution shall be issued until the further order
of the court, and complainant files a petition for collection
of unpaid alimony, and the petition does not aver any change
in the financial condition of the defendant since the rendi-
tion of the last decree, or that he is able to further pay ali-
mony, and the answer of the defendant shows a continuation
of his poverty-stricken condition, it is proper to dismiss the
petition. Jones v. Jones, 443.

AMBIGUITIES.

See DESCRIPTION OF PROPERTY.

AMENDMENTS.

1.

2.

3.

Amendment of complaint.-Where a statutory action in the na-
ture of ejectment is brought to recover ands held adversely
by defendant, the complaint, if brought in the name of the
grantee, cannot be amended by adding as parties plaintiff the
grantors in deed under which plaintiff claims title.-Reese v.
Reaves, 195.

Complaint; amendment.-In an action for forcible entry and
unlawful detainer, where the premises are described in the
complaint by giving the fractional parts of the section,
township and range, the same may be amended by setting
out the metes and bounds, in order to make more specific
and certain the description of the premises involved in the
suit. Bibby v. Thomas, 350.

Amendments; when not authorized;

discontinuance.-While
our statute of amendments is exceedingly liberal in its

AMENDMENTS-Continued.

terms, it has never been held to authorized the striking out
of a sole party plaintiff and the substitution of another; and
upon this being done such substitution will work a discon-
tinuance of the cause. Vinegar Bend L. Co. v. Chicago T.
& T. Co., 411.

4. Same; same; what a departure and not allowed.-Where a
suit is brought in the name of a corporation as party plain-
tiff, the amendment of the complaint by substituting for
the plaintiff corporation the name of another as assignee of
said corporation, is a departure and can not be allowed;
since it introduces an entirely new party plaintiff. Ib. 411.

APPEALS.

1. Trial and its incidents; when finding upon facts will not be
reviewed on appeal. -Where a criminal case is tried by a
court without a jury and there is no agreed statement of
facts or any special finding of the facts by the judge, and
no request for such finding, the conclusions of the judge
upon the facts stand as a verdict of the jury and will not
be revised on appeal. Norille v. State, 35.

2. Appointment of receiver; appeal will lie to Supreme Court
from decree of the chancellor revoking an order by the regis-
ter appointing receiver.-An appeal will lie to the Supreme
Court from a decree rendered by the chancellor on appeal
to him, revoking and annulling the order of the register ap-
pointing a receiver without notice. Meyer v. Thomas, 111.
3. Appointment of receiver; Supreme Court will not modify a de-
cree of chancellor annulling erroneous appointment of re-
ceiver.-Where upon the filing of a bill asking for the fore-
closure of a mortgage and the appointment of a receiver, the
register erroneously appoints a receiver as prayed for with-
out notice, and on appeal to the chancellor such order of the
register is annulled and vacated and the receiver is directed
to restore the possession of the property to the defendants
from whom he received it, on an appeal to the Supreme
Court from the decree of the chancellor vacating and annul-
ling the order of the register making the appointment, this
court will not modify the decree of the chancellor directing
the receiver to restore the property of the defendant, so as
to order the receiver to sell and apply the proceeds first to
the payment of the defendant, and the balance, if any, to
the complainant in the bill. Ib. 111.

4. Pleading and practice; when error in sustaining demurrer with-
out injury and will not work a reversal.-Where the facts
alleged in a special plea can be introduced in evidence under
the plea of the general issue, the erroneous sustaining of a
demurrer to a special plea is error without injury, and will
not work a reversal of a judgment rendered in favor of the
plaintiff. (TYSON, J., dissenting, holds that in such case it
must affirmatively appear from the record that the defend-
ant, under the plea of the general issue, had the full benefit
of the facts alleged in his special plea to which the demurrer
was improperly sustained.-L. & N. R. R. Co. v. Hall, 161.

5. Bill of exceptions; when properly stricken from the file. - Where
a bill of exceptions contains a statement of everything that
was done on the trial, and sets forth every word uttered by
witnesses, attorneys, and judge, while the cause was being
tried, and no effort is made to present the statements of the
testimony or of its tendencies, but it is given verbatim as
testified to by the witnesses, and the rulings against the party
in whose favor the judgment was rendered is given, as well

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