[Phoenix Assurance Co. of London v. McAuthor.] diligent or otherwise. He ought to have shown that he made a bona fide and diligent but unsuccessful search for it in the place where it was most likely to be found. The court erred in admitting and not excluding the evidence.-Bogan v. McCutchen, 48 Ala. 493; Tanner v. Hall, 89 Ala. 628; 1 Gr. Ev. 558. 2. Whether or not the policy was delivered after its issuance depended not upon its manual possession by the assured, after its issuance, but rather upon the intention of the parties as manifested by their acts or agreements; for, as has been well said, "whatever the parties have agreed to as a delivery, or whatever their conduct shows to have been considered as a delivery by them, controls."-11 Am. & Eng. Encyc. of Law, 285, and authorities there cited; Home Ins. Co. v. Adler, 71 Ala. 516, 526. The evidence tended, without conflict, to show that the contract of insurance was completed and put in writing, and the assured was notified by the agent that this had been done, and that the policy was in his possession for the plaintiff. 3. The defendant claimed that the policy had been cancelled under and according to a provision contained in it for the purpose, before the fire occurred. There was a plea setting up a cancellation as a defense, and the proof elicited by defendant from plaintiff's witness showed a condition in the policy which gave the company the right to cancel it, unless the premium was paid within five days after notice. The evidence was in conflict as to whether the premium was paid, and as to whether there was any notice for cancellation. The burden of showing the cancellation, when the undisputed evidence showed there was a completed contract, was on the defendant, and the evidence being in dispute, the question was properly submitted to the jury. The general charge for defendant was rightly refused. Charge 2 requested by defendant was properly refused. Jones v. State, 115 Ala. 67; 3 Brick. Dig. 828, §§ 98100; 29 Am. & Eng. Encyc. of Law, 812. Reversed and remanded. MEMORANDA OF CASES DECIDED DURING THE PERIOD EMBRACED IN THIS VOLUME, WHICH ARE ORDERED NOT TO BE REPORTED IN FULL. Hawthorne v. The State. APPEAL from Tallapoosa County Court. Tried before the Hon. R. A. J. CUMBEE. JOHN TERRELL, for appellant. WILLIAM C. FITTS, Attorney-General, for the State. The appellant was tried and convicted for allowing his stock to run at large in a prohibited district. The judgment of conviction is affirmed on the authority of Hawthorne v. State, ante, p. 487. Opinion by BRICKELL, C. J. Reese v. The State. APPEAL from Jefferson Circuit Court. Tried before the Hon. JAMES J. BANKS. No counsel marked as appearing for appellant. WILLIAM C. FITTS, Attorney-General, for the State. The appellant, John Reese, was indicted, tried and convicted for larceny from a dwelling house. The prop erty alleged to have been stolen was that of J. C. Bartlett. Upon the trial of the cause, J. C. Bartlett, as a witness testified that at the time of the larceny he had a pair of pants stolen from him; that said pants were taken from the outside of a dairy that was attached to his dwelling house; that the pants were hung on the side of said dairy; that said dairy was built at the end of the veranda of said house, and that the roof of the veranda covered the dairy, and the pants could have been reached by a person standing on the ground; that after the loss of said pants he saw the defendant with them The venue of the offense and the time were properly proven. This was substantially all of the evidence. The defendant requested the court to give the general affirmative charge in his behalf, and duly excepted to the court's refusal to give such charge. The judgment of conviction is affirmed. on. Opinion by MCCLELLAN, J. Crowder v. The State. APPEAL from Montgomery City Court. Tried before the Hon. A. D. SAYRE. No counsel marked as appearing for appellant. WILLIAM C. FITTS, Attorney-General, for the State. The appellant was indicted, tried and convicted for forgery. The bill of exceptions not only fails to state that it contains all the evidence, but affirmatively shows that there was other evidence introduced on behalf of the State. The court holds that in this condition of the record, it will be presumed there was other evidence which justified the rulings of the court. The judgment of conviction is affirmed. Opinion by COLEMAN, J. Hardin v. The State. APPEAL from Tuscaloosa Law and Equity Court. Tried before the Hon. J. J. MAYFIELD. No counsel marked as appearing for appellant. WILLIAM C. FITTS, Attorney-General, for the State. The appellant in this case was indicted, tried and convicted for carrying a pistol concealed about his person. The judgment of conviction is affirmed. Opinion by HEAD, J. Curling v. The State. APPEAL from Tuscaloosa Law and Equity Court. Tried before the Hon. J. J. MAYFIeld. No counsel marked as appearing for appellant. WILLIAM C. FITTS, Attorney-General, for the State. The appellant was indicted, tried and convicted of robbery, and sentenced to the penitentiary for 35 years. The defendant pleaded guilty. The defendant requested the court to give to the jury the following written charge, and duly excepted to the court's refusal to give the same as asked: "The court charges the jury that they must convict upon the indictment alone to the exclusion of all else; they must not travel outside of the indictment and rely upon any fact with which they may be personally acquainted in fixing the punishment of the defendant." On this appeal the court holds that the charge asked by the defendant was properly refused. The judgment of conviction is affirmed. Opinion by HARALSON, J. Zivits v. The State. APPEAL from Tuscaloosa Law and Equity Court. Tried before the Hon. J. J. MAYFIED. No counsel marked as appearing for appellant. WILLIAM C. FITTS, Attorney-General, for the State. The appellant was indicted, tried and convicted for selling spirituous, vinous or malt liquors without a license. This appeal, prosecuted from that judgment is dismissed, there being no question reserved for this court. Opinion by BRICKELL, C. J. Martin v. The State. APPEAL from Montgomery City Court. Tried before the Hon. A. D. SAYRE. No counsel marked as appearing for appellant. WILLIAM C. FITTS, Attorney-General, for the State. The appellant was indicted, tried and convicted of murder, and sentenced to the penitentiary for life. The only question presented on this appeal is the overruling of the defendant's motion in arrest of judgment. The facts pertaining to this motion are substantially the same as contained in the case of Hurd v. The State, ante, p. 440, and the judgment of conviction is affirmed on the authority of that case. Opinion by MCCLELLAN, J. |