The decree of the circuit court, in equity, I maintain the bill, moved the court to dismiss is affirmed.

Affirmed.

the same. The court, holding that the matter of Grace Minchener's alleged insanity and of Annie K. Pennington's right to main

ANDERSON, C. J., and SOMERVILLE tain the bill on her behalf should not be deand BOULDIN, JJ., concur.

Ex parte MINCHENER, (Supreme Court of Alabama.

(4 Div. 115.) April 24, 1924.) 1. Equity 32-Bill to set aside conveyance properly filed in county where land situated.

A bill in equity filed on behalf of complainant to set aside a conveyance was properly filed in county where land was situated, under Code 1907, § 3054, though complainant and defendants resided outside of state.

termined on ex parte affidavits, denied the motion, whereupon Grace Minchener applied to this court for its writ of prohibition as aforesaid.

Upon this application the sole question presented for adjudication is whether the cir cuit court of Pike, sitting in equity, has jurisdiction to proceed with the hearing of the bill notwithstanding the motion to dismiss made by the party on whose behalf it was filed. Ex parte Greene, 29 Ala. 57; Ex parte Peterson, 33 Ala. 76; Ex parte Boothe, 64

Ala. 317.

Upon authority and the reason of the matter the court here is of opinion that the trial court is not without jurisdiction in the premises, and that the writ prayed for

should be denied.

2. Prohibition 5(3)-Jurisdiction of bill by next friend not destroyed by motion to dismiss on ex parte affidavits of complainant, A circuit court, sitting in equity, had juris-reside in the state of Florida, but the bill in [1] Grace Minchener, Kent, and Wales all diction of a bill to set aside a conveyance, notwithstanding motion to dismiss on ex parte af- equity filed by Mrs. Pennington involves the fidavits of alleged insane complainant, on whose title to lands in the county of Pike, and, so behalf it was filed by next friend, since court far as concerns the territorial jurisdiction of was under duty to determine for itself mental the court, was properly filed in that county. capacity of complainant, and hence prohibition Code, § 3054. would not lie.

Original petition by Grace Minchener for a writ of prohibition to Hon. W. L. Parks, as Judge of the Circuit Court, Pike County, to prohibit his further proceeding in a cause pending in said court. Writ denied.

A. G. Seay, of Troy, for petitioner. Wilkerson & Brannen and T. L. Borom, all of Troy, and James J. Mayfield, of Montgomery, for respondent.

[2] Whether Mrs. Pennington should be allowed to maintain her suit on behalf of her daughter, Grace Minchener, depends upon the mental capacity of the latter to direct that matter for herself. There has been no inquisition of lunacy; complainant's right as next friend rests thus far upon her own averment that her daughter is non compos mentis. In Beall v. Smith, L. R. 9 Ch. 85 (1873), it was said that—

"The law of the court of chancery undoubt

edly is that in certain cases, where there is a person of unsound mind, not found so by inquisition, and therefore incapable of invoking the protection of the court, that protection may in proper cases, and if and so far as may be necessary and proper, be invoked on his behalf by any person as his next friend."

way of caution and limitation added the following quotation, which it may be well to

repeat:

SAYRE, J. This is an original petition in this court for a writ of prohibition, to be directed to Hon W. L. Parks, as judge of the circuit court of Pike county, prohibiting and restraining him from proceeding further in a cause pending in the said circuit court wherein Annie K. Pennington, suing as next And in Whetstone v. Whetstone's Ex'rs, 75 friend of Grace Minchener, is complainant, Ala. 499, this court followed the law of Beall and W. C. Kent and T. F. Wales are defend-v. Smith as being beyond question, but by ants. Mrs. Pennington, who is the mother of Grace Minchener, alleging her daughter to be non compos mentis, filed her bill against Kent and Wales to set aside a conveyance of property made to them by the daughter on the ground that the same had been procured by of a person of unsound mind does so entirethe fraud and undue influence of the gran-ly at his own risk, and he must be prepared tees. Grace Minchener, undertaking by ex parte affidavits to show to the court that for two years next before the filing of the bill on her behalf and at the time of the execution of the conveyance in question she had resided in the state of Florida, that the averments of the bill were untrue, that she was not of unsound mind, and that her mother, Annie K. Pennington, had no authority to begin or

"Every person so constituting himself officiously the guardian, committee, and protector

to vindicate the necessity and propriety of his proceedings, if they are called in question, and to bear the consequences of any unnecessary and improper proceedings. He takes the risk, moreover, of having his proceedings wholly repudiated by the lunatic, if he should recover his

reason."

It follows that, when its jurisdiction is challenged on the ground the complainant on

(100 So.)

whose behalf the bill is filed is competent to care for his own interests, the court has the right and is under duty to determine for itself the question of the mental capacity of the beneficial complainant by a report from the register, by submitting the question to a jury, or otherwise as the court may direct. The courts and text-writers so hold. Whetstone v. Whetstone's Ex'rs, supra; Isle v. Cranby, 199 Ill. 39, 64 N. E. 1065, 64 L. R. A. 513, note; Holland v. Riggs, 53 Tex. Civ. App. 367, 116 S. W. 167; Dan. Ch. Pl. & Pr. (6th Ed.) star p. 83; Story', Eq. Pl. (10th Ed.) § 66. The reason for the rule is stated in substance as follows: To require the dismissal of a bill filed on behalf of a person alleged to be incompetent at the mere dictation of the latter would permit serious wrong to him or his property without remedy-would practically destroy the power of the court to care for the interests of persons who are unable to care for themselves.

Appeal from Circuit Court, Walker Coun-
ty; Ernest Lacy, Judge.

Petition of Mrs. J. W. Christian for writ
of mandamus to Lucian Jones, as Superin-
tendent of the Jasper Public Schools. From
a judgment dismissing the petition, petition-
er appeals. Transferred from court of Ap-
peals under Acts 1911, p. 449, § 6. Affirmed.
W. F. Finch, of Jasper, for appellant.
A. F. Fite, of Jasper, for appellee.

GARDNER, J. Appellant filed this petition for mandamus against appellee, who is superintendent of the public schools of the city of Jasper, Ala., for the reinstatement of her child in said school. Respondent's demurrer to the petition was sustained, and to review such ruling petitioner has prosecuted this appeal.

Relator's daughter was a pupil in the public school of Jasper. It was also desired A music We have said enough to determine the that she be given music lessons. question of the trial court's jurisdiction teacher is provided in the school building, against the contention of petitioner. The though music is not a part of the course, and court had jurisdiction to proceed with the cause, and the writ of prohibition must be denied.

the patrons pay tuition therefor to the teach-
er. Relator, however, preferred another
teacher (a Mrs. Cheatham), not connected
with the school, and whom she had previous-

We will not be understood as holding that an appeal from a final decree against the de-ly patronized. Mrs. Cheatham's studio was fendants in the equity cause will afford adequate relief against error in its determination of the mental capacity of Grace Minchener, or that mandamus, serving the purpose of an emergency appeal, will not lie to review such ruling in advance of a final decree, the evidence being properly presented. As the case stands, the court had jurisdiction to determine the issue of lunacy or other incompetency vel non, and its determination cannot be reviewed by the writ of prohibition or otherwise on the record before us. Writ denied.

only a few hundred feet from the school, and
petitioner desired her daughter to be per-
mitted to leave the school during school
hours and go to Mrs. Cheatham's studio for
musical instructions. The board of educa-
tion of the city would not permit this, and
the rule was established that pupils should
not leave the school grounds for instructions
during school hours. Petitioner, in violation
of this rule, had her daughter to leave the
school during school hours, and attend her
music lessons at Mrs. Cheatham's studio.
Respondent, the school superintendent, sus-
pended petitioner's daughter on account of

ANDERSON, C. J., and GARDNER and the violation of this rule and leaving school MILLER, JJ., concur.

CHRISTIAN v. JONES, Superintendent of
Public Schools. (6 Div. 109.)
(Supreme Court of Alabama. April 24, 1924.)
Mandamus 79-Schools and school districts

172-Board of education did not abuse discretion in rule against pupils leaving grounds; and mandamus would not lie to compel reinstatement of pupil suspended by such board.

Board of education did not abuse the discretion vested in it under Acts 1919, p. 567, in adopting rule forbidding pupils to leave school grounds during school hours to receive instruction elsewhere, and hence mandamus will not lie to compel reinstatement of pupil suspended for violating it.

without permission, hence this litigation.

The Legislature (Acts 1919, p. 567) has clothed the city board of education with authority to prescribe rules and regulations for the conduct and management of the schools, and the superintendent is the executive officer of the board, who is to exercise supervision and control over the schools, and the duty is enjoined upon the superintendent to see that the rules and regulations of the board are carried into effect. Section 6 of article 8 of the above-cited act reads as follows:

"The city board of education is hereby vested with all the powers necessary or proper for the administration and management of the free public schools within such city subject to the provisions of this act."

It thus appears that a very broad discretion is vested in the city board as to the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

management and conduct of the public [ as to market conditions, inducing defendant not schools. to exercise a contractual right to cancel and We quote with approval the following rescind, held insufficiently established to warfrom Wilson v. Board of Education, 233 Ill. rant denial of the affirmative charge as to such 464, 84 N. E. 697, 15 L. R. A. (N. S.) 1136, 13 Ann. Cas. 330:

ANDERSON, C. J., and SAYRE and MIL- ing, and upon defendant protesting, induced LER, JJ., concur.

FRIBUSH et al. v. FRIEDMAN. (6 Div. 96.) (Supreme Court of Alabama. April 24, 1924.) The gravamen of this plea is that the 1. Sales 53(3)-Seller's fraud inducing pur- plaintiffs fraudulently deprived the defendchaser not to rescind held not established. ant of his contract right to rescind or canIn action for purchase price of merchan- cel the order for goods, and that the defenddise, seller's alleged fraudulent representations ant was induced to forbear the exercise of

(100 So.)

such right by reason of plaintiffs' fraudulent, have been given, as requested by the plainrepresentations.

It is insisted by counsel for appellants that as a matter of fact the defendant did, under the undisputed evidence in the case, exercise his right of cancellation and make changes in the orders. Upon cross-examination the defendant does state (speaking of these orders and the changes made in reference thereto) that "he canceled out some of them, and some of them I [he] increased some orders were enlarged and some cut out entirely, and some reduced."

It may be questioned, however, that the affirmative charge was due the plaintiff upon this plea upon the theory that defendant exercised his right of cancellation, for the reason that it might be open for the jury to find the defendant would have exercised the right more freely and to a greater extent.

Under this plea, however, the fraudulent representations of the plaintiffs constituted its very foundation. We are persuaded on examination of this record that this charge of fraud depends for its proof upon a letter written by plaintiffs to the defendant from Baltimore on June 18, 1920, in which the plaintiffs insisted that the coats bought could not be purchased "any cheaper-in fact, some of them had advanced, and that

tiffs.

Plea 4a is a plea of set-off. It sets up, in substance, the sale of certain goods by plaintiffs to the defendant in March, 1918, the sale being by sample and an implied agreement that the goods would correspond with the sample in quality, style, and workmanship; that about half the quantity of goods was delivered, but that said goods did not correspond with the sample in quality, style and workmanship, being greatly inferior, to defendant's damage. This plea was not subject to any assignment of demurrer interposed thereto. McCaa v. Elam Drug Co., 114 Ala. 74, 21 South. 479, 62 Am. St. Rep. 88.

We are of the opinion the evidence was sufficient for submission of the issue of fact there presented to the jury for determination, and that the affirmative charge was properly refused as to said plea.

Plea 5a is also a plea in set-off, and rests upon the transaction of March, 1918, alleging a failure to deliver a large portion of the goods ordered and an advance in price, to the defendant's damage. The observations as to plea 4a are likewise applicable to this plea.

[2] The only criticism as to plea 6a by but a plea of general issue, and clearly counsel for appellants is that in fact it is plaintiffs suffer no injury by the court overonly presents the general issue. ruling the demurrer to such a plea, which

it was only newspaper talk that caused people to believe merchandise had declined; that there had in fact been no decline in piece goods and labor, and that labor was advancing." To revert to the allegations of For the error indicated, in refusing the afthe plea, it is to be noted that the right offirmative charge as to plea 2a, the judgment cancellation was a contract right, and one to will be reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.

EDWARDS v. BEARD. (7 Div. 466.)

(Supreme Court of Alabama. April 17, 1924. Rehearing Denied May 15, 1924.)

1. Sales 434-Complaint against seller on warranty of title held to show claim litigated by buyer with third person was title superior to seller's.

Complaint of buyer against seller on im

be exercised by the defendant at his own
option. It bore no relation to a rescission
of the order for cause a right which would
arise by law-and it is expressly averred
that it related to the right to cancel the or-
der at any time prior to May 15th and June
1st, which were to be the dates of shipment.
Clearly, the fact that a large portion of the
goods were prematurely shipped could have
no effect upon this contract right, either lim-
iting or extending the same. During that
period no fraudulent representations on the
part of the plaintiffs are shown, and in the
very nature of things the fraud relied upon
cannot be rested upon the letter of June 18th.
[1] The argument of counsel for appellee
in regard to the right of defendant to return
the goods after their receipt within a rea-
sonable time evidently rests upon the doc-
trine of rescission above referred to. It is
no answer, however, to the question here un-
der consideration, which relates solely to a
contract right to cancel the order by a given
date. We are therefore of the opinion that
the defendant has failed to show any fraud-
ulent representations inducing him to aban-
don the contract right set up in plea 2a, and
that affirmative charge as to this plea should
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

plied warranty of title held to sufficiently show
that what had been litigated on the merits by
buyer with third person, with seller's knowl-
edge and consent, was such person's claim of
title paramount to seller's.
2. Sales

263-Implied warranty of title, where seller in possession.

In the absence of anything to the contrary, there is an implied warranty of title, at least where seller is in possession of chattel. 3. Sales 263-Implied warranty of title, where seller in apparent possession.

There is an implied warranty of title of corn, where seller is in apparent possession of

Appeal from Circuit Court, Talladega Mrs. Sailors, the defendant in detinue, deCounty; A. P. Agee, Judge.