The defense set up in plea 7 is that“The plaintiff in this cause entered into and was party to the agreement with J. A. Kyle, register, to pay him the fund now sued for, and said funds were paid to said Kyle by consent of J. C. Jacobs, plaintiff herein, and he cannot now collect same because paid by him, or with his knowledge and consent, for use of said fund by the plaintiff or his bank. Plaintiff was in pari delicto and cannot sue."

South. 994; B. R., L. & P. Co. v. Etna A. & L. Co., 184 Ala. 601, 64 South. 44; A. C. G. & A. R. Co. v. Kyle, 204 Ala. 597, 87 South. 191; Winter-Loeb Gro. Co. v. Boykin, 203 Ala. 187, 82 South. 437. The complaint alleges the facts; and among other things it is averred:

"Said decreal [decretal] order allowed said E. H. Caldwell to assign in writing his right to redeem under said mortgage, and on the

D. P. Wimberly, of Scottsboro, for appel- 10th day of December, 1912, said E. H. Caldlant.

Ernest Parks, of Scottsboro, for appellee.

well executed in writing an assignment of his right to redeem under said decree to Hamlin Caldwell, and on the 15th day of August, 1914, said E. H. and Hamlin Caldwell assigned their right of redemption under said mortgage to J. C. Jacobs, the plaintiff in this cause, and said deposit was made in pursuance of said decreal [decretal] order. And plaintiff avers that said Hamlin Caldwell as a matter of fact borrowed said sum of money from this plaintiff, and that he paid and is to pay plaintiff interest on said sum, and said Hamlin Caldwell was and is liable to plaintiff for principal and in

THOMAS, J. The trial was had without a jury on complaint and special pleas-among others, No. 7-and resulted in judgment for plaintiff. Material testimony was given ore tenus. The register had put in bank at interest funds deposited with that official for redemption of mortgage. Hackett v. Cash, 196 Ala. 403, 72 South. 52; Andrews v. Grey, 199 Ala. 152, 74 South, 62; Gray v. Handy, 204 Ala. 559, 86 South. 548. However, since the evidence is without conflict, there is no occasion for the application of the rule stat-pany's Bank in Scottsboro, Ala., on the 15th ed in the cited cases.

terest on said sum. Plaintiff avers that said J. A. Kyle deposited in his name the said sum of $2,407.77 in the J. C. Jacob's Banking Com

day of August, 1914, where said deposit remained until the 23d day of January, 1917, when said sum was transferred on the books of said bank from said Kyle's account to that of said B. F. Shook, register. Plaintiff further avers that while said sum of money was on deposit in said bank, to wit, from the 15th day of August, 1914, to the 23d day of January, 1917, said J. A. Kyle collected from said bank $237.77, as interest on said redemption funds so deposited, and when said J. A. Kyle, register aforesaid, turned the office and all books, papers, and moneys belonging thereto to his successor in office, the said B. F. Shook, he failed to turn over to said B. F. Shook, register, said $237.77, belonging to plaintiff, or to deliver said sum to plaintiff or to any one legally authorized to receive said sum of money."

[1] It is provided that, if any official named in the statute knowingly converts to his own use, or permits another to use, any money paid into his office, or received by him in his official capacity, he is liable to prosecution for embezzlement. Code, § 6838; Ex parte Cowart, 201 Ala. 55, 77 South, 349; Gerald v. Walker, 201 Ala. 502, 78 South. | 856; State v. Montgomery Savings Bank, 199 Ala. 365, 74 South. 942; Clisby v. Mastin, 150 Ala. 132, 43 South. 742, 124 Am. St. Rep. 64; Alston v. State, 92 Ala, 124, 9 South. 732, 13 L. R. A. 659; Lacey v. State, 13 Ala. App. 212, 68 South. 706, certiorari denied in 193 Ala. 677, 69 South. 1018. It follows that, if a register deposit the moneys paid him in his official capacity as a deposit on It is insisted that, although the suit is interest account in a bank, without the au- brought by J. C. Jacobs for the use of Hamthority of the court having jurisdiction of lin Caldwell, it was in truth and fact for that fund, while the same creates the re- his own benefit, and that he was particeps lation of debtor and creditor between the criminis with Kyle in so depositing the speparties, such deposit amounts to a conver-cial or trust fund in question. It will be sion, and he is liable for the amount, with the legal interest thereon. Clisby v. Mastin, 150 Ala. 132, 43 South. 742, 124 Am. St. Rep. 64; McPhillips v. McGrath, 117 Ala. 549, 23 South. 721.

noted that it is averred in the complaint that the right of redemption under said mortgage in Hamlin and E. H. Caldwell was assigned to J. C. Jacobs on August 15, 1914, the same day the deposit at interest in the bank of J. C. Jacob's Banking Com

By reason of the matter set up in special plea No. 7, it is important that we deter-pany was made by J. A. Kyle. The evidence mine from the pleading and evidence who the real plaintiff was-whether J. C. Jacobs or Hamlin Caldwell.

[2] In a suit in the name of a person merely holding the legal title for the use of a beneficiary, the latter is regarded the party to the record. Code, § 2490; Smith v. Yearwood, 197 Ala. 680, 73 South. 384; U. S. S. B. v. Sherman, 208 Ala. 83, 93 South.

shows that J. C. Jacobs was the president of the bank, and agreed with Hamlin Caldwell to furnish said moneys and to redeem the Caldwell interest in the land for the purpose indicated; and J. C. Jacobs gave therefor his individual check to Caldwell or Kyle, and same was deposited by Kyle in the bank. The alleged beneficiary, Hamlin Caldwell, testified that he "made the arrangements

(100 So.)

"This the 21st day of Nov., 1917.

the redemption and he paid it into court"; | direct you to return all said funds to the said that witness did not "receive any interest J. C. Jacobs, less such deductions as were made upon the money so deposited," nor did he on account of costs. "authorize J. C. Jacobs to receive any interest on that money deposited"; and that witness was "liable to J. C. Jacobs for the funds so deposited" in court.

The plaintiff introduced H. G. Jacobs as a witness, who testified:

"I am the cashier of J. C. Jacobs Banking Company, and the son of J. C. Jacobs, who was president of the company in 1914 and since. J. A. Kyle, as register deposited the Caldwell money shown by the report with J. C. Jacobs Banking Company in the name of J. A. Kyle, register, on or about the 15th of August, 1914. The bank paid Mr. Kyle interest at two different dates on this money, namely, July 27, 1916, $192, and on January 23, 1917, $45.77. On the last date named Mr. Kyle transferred to B. F. Shook, register, the sum of $2,407.93

of this fund."

The bill of exceptions then recites: "Witness further stated that neither he nor J. C. Jacobs Banking Company is interested in the result of this suit."

The witness testified on cross-examination as follows:

"Filed Nov. 23d, 1917.

1

"E. H. Caldwell.
"Hamlin Caldwell.

"B. F. Shook, Register."

[3] When the undisputed evidence is considered, it cannot be said that Hamlin Caldwell was not the beneficiary in the suit, and was a party to the transaction with Jacobs or Kyle in the deposit of the money in bank at interest.

As to Kyle and Jacobs, the contract to pay interest was against public policy, and as between those parties the law would leave them as found. As stated, this is not the case with Hamlin Caldwell (the real plaintiff), who, after the money was paid to J. C. Jacobs as for the order of

date November 21, 1917, owed the difference between the sum so returned and that borrowed, with interest.

The judgment of the circuit court is affirmed.

Affirmed.

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

McCORD et al. v. BRIDGES et al. (7 Div. 357.)

Rehearing Denied May 15, 1924.)

"That was the only fund that J. A. Kyle, register, had on deposit on savings account. This was carried on the savings account, and we paid interest on it. My best recollection is that it was agreed between J. A. Jacobs and J. A. Kyle at the time the redemption fund was paid to Mr. Kyle that he would leave it with our bank on savings account. My father, J. C. Ja-(Supreme Court of Alabama. April 10, 1924. cobs, was to redeem the land for Hamlin Caldwell. Papa gave his check either to Caldwell or Kyle, I don't know, and that check was de-. posited on savings account to the credit of J. A. Kyle, register, pursuant to an understanding to the effect. My judgment is that the agreement was made contemporaneous with the redemption of the land. It was all planned together."

On rebuttal the witness said:

"I don't remember the arrangements they made. If I was present I don't remember it."

Statutes 148-Subject of amendment by reference to title must be germane to original section.

When section of Code is amended by reference to its title, subject added by amendment must be germane to, suggested by, and supplemental to subject-matter of original section. 2. Statutes 148-Amendment by reference to title held valid.

Act Sept. 29, 1915 (Acts 1915, p. 880), amending Code 1907, § 2967, relative to venue of suits on bonds by reference to title, held The defendant offered in evidence, among constitutional, its subject-matter being germane other things, the following:

"E. H. & G. B. Caldwell v. D. K. & S. A. Caldwell et al.

"In the Circuit Court of Jackson County, Alabama, in Equity.

"To Hon. B. F. Shook, Register:

"We hereby certify that the funds paid in by J. C. Jacobs on redemption of lot No. 5, of the Caldwell lands, in August, 1914, and which are still deposited in court to be returned to the owner, is the money of the said J. C. Jacobs. It appearing that by the final decree of January, 1917, you are ordered to return these funds to the complainant. Now, this is to authorize and

to original section.

3. Injunction 248-No misjoinder of parties in suit on injunction bond.

In action on injunction bonds by both parties to contract to log certain premises against one who sued to restrain cutting and removing of timber, there was no misjoinder of parties plaintiff.

4. Action 50(1)—No misjoinder of causes of action because suit brought on several injunction bonds.

There was no misjoinder of causes of action because suit was brought on several bonds for suing out and reinstating injunction.

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

5. Injunction 252 (4)-Damages recoverable upon the execution of his contract, handling in action on injunction bond.

about 225,000 feet of the timber; that on August 4, 1920, defendant filed in the circuit court his bill seeking to restrain plaintiff from cutting and removing or disposing of the timber in question, entered into a bond, and procured a temporary restraining order; 251-Evidence admissible in that on August 13, 1920, defendant executed

One enjoined from cutting and hauling logs under a contract was entitled to recover in action on bond reasonable value of hire of his outfit and reasonable attorney's fees, etc., such damages not being remote. 6. Injunction action on bond.

In action on injunction bond given when plaintiff was restrained from cutting timber under contract, plaintiff was properly permitted to testify that his "teams" "were trained to haul logs," that he had competent and experienced men and cutters, and to state "the reasonable rental value of the logging outfit," and also facts as to reasonable cost of feeding, his efforts to minimize his damages, and compensation received by other work. 7. 'Appeal and error 1050 (1)—Admission of evidence held not reversible error. In action on bond given to obtain injunction against cutting and hauling logs on premises under contract, there was no reversible error in allowing plaintiff to testify that before he cut any of that timber there was "something like a million feet," to show he would have been cutting and hauling during the period for which damages were claimed, and to testify that he had his teams and outfit ready.

8. Evidence 523-Testimony of qualified witness as to reasonable attorney's fee admissible.

Where counsel hypothesized various steps in litigation between parties, nature thereof, and average work that plaintiff could have done if not forced to remain idle by defendant's injunction suit, witness, a practicing attorney shown to be qualified, was properly permitted to state what would be a reasonable attorney's fee. 9. Injunction 253-Requested charges held properly refused in action on bond.

In action on injunction bond by one restrained from cutting and hauling timber under contract, there was no error in refusing defendants' requested charges seeking to extend inquiry to lost profits, court having stated that only elements submitted were reasonable attorney's fees and market value of hire of plaintiff's idle teams and outfit.

another bond and procured a continuance of the restraining order; that on August 19, 1920, defendant entered into another bond and procured a further continuance of the restraining order.

It is averred that on final hearing defendant's bill was dismissed and the restraining order dissolved.

As special damages plaintiff claims an amount incurred as attorney's fees in the litigation, and a stated sum per day during the time his teams were idle.

Count B is the same as count A, with the added averment to the effect that defendant took an appeal from the decree of the circuit court dismissing his bill, pending which appeal he procured an order from a justice of the Supreme Court reinstating the injunction, executing an additional bond therefor; that the decree of the lower court was affirmed, and the injunction dissolved; that defendant failed to pay plaintiff for the damages caused by the injunction.

The witness Stringer, after counsel had hypothesized the various steps in the litigation between the parties, the nature thereof, and the average work that could be done by Hawkins and the time he was forced to remain idle, was asked what would be a reasonable attorney's fee for Hawkins' solicitor.

These charges were refused to defendants:

"(12) The court charges the jury that, without the plaintiff has reasonably satisfied them from the evidence that the plaintiff has suffered some damage on account of the suing out of said injunction wrongfully, either on account of the loss in the carrying out of his contract with Bridges or for expenses in keeping his teams in order to carry out said contract, then the plaintiff cannot recover any damages other than for such liability as they may determine that the defendant should pay to the plaintiff for the

Appeal from Circuit Court, Talladega attorney's fees in representing him in said inCounty; A. P. Agee, Judge.

Action on injunction bonds by J. U. Bridges and Cleve Hawkins, for the use of Cleve Hawkins, against Z. D. McCord, W. H. McCord, and Jeff McCord. Judgment for plaintiffs, and defendants appeal. Affirmed.

Count A alleges that in April, 1920, plaintiff Hawkins entered into a contract with Bridges to cut into logs and haul to a sawmill timber located on lands described, at and for a stipulated price; that there was about 1,000,000 feet of timber on the lands; that plaintiff immediately provided himself with wagons, oxen, horses, etc., and entered

junction suit."

"(18) The court charges the jury if they believe the evidence plaintiff can only recover for such amount as damages as was the value of said contract during the time the same was suspended under said injunction, and, if they

believe from the evidence that said contract had no value or there would have been no profits if the same had been carried through, the plaintiff cannot recover under his complaint as to this element of damage.

"(19) The court charges the jury that, if they his alleged contract with Bridges which was believe from the evidence that the plaintiff in suspended during said injunction suit would have lost money in carrying out the same, he cannot recover any damages for the said inter

(100 So.)

ference with carrying out said contract in re- (injunctions, etc., are to be found in Nationgard to hauling said logs and lumber."

Knox, Acker, Dixon & Sims, of Talladega, for appellants.

al Surety Co. v. Citizens' L., H. & P. Co., 201 Ala. 456, 78 South. 834; Williams v. Ragan, 153 Ala. 397, 45 South. 185; Britt v. Pitts,

Riddle & Riddle, of Talladega, for appel- 111 Ala. 401, 20 South. 484 (action on case lees.

THOMAS, J. The suit is based upon a complaint originally numbered 1, and that count was eliminated by adding counts A and B. The trial was upon the complaint as amended and the plea of the general issue. Preliminary rulings assigned as error are the sustaining of demurrers to pleas in abatement Nos. 1, 2, 3, and 4. These pleas sought to set up the fact that when the suit was first brought on the injunction bond the case was on rehearing in this court; that there was pending another suit for damages for breach of the contract; and that the residence of defendants were in the county of Coosa rather than that where the suit was brought.

[1, 2] The act of September 29, 1915 (Gen. Acts, p. 880), sought to amend section 2967 of the Code of 1907, and provided, among other things, that suit may be maintained upon an injunction bond in the county where the injunction was sued out, operated, etc. The venue of the suit and operation of the injunction was Talladega county. It is insisted that the amendment of section 2967 of the Code in respects indicated was unconstitutional. The cases of State ex rel. Troy v. Smith, Auditor, 187 Ala. 417, 65 South. 942, and Ex parte Cowert, 92 Ala. 94, 100, 9 South. 225, are cited by appellants as indicating the rule of amendment of statutes by reference to their titles. It is true that when the section of the Code is sought to be amended by reference to its title the subject added by way of amendment must be germane to, suggested by, and supplemental to the subject-matter of the original section. Dodd v. Commissioners' Court, 203 Ala. 271, 82 South. 521; Ex parte Johnson, 203 Ala. 579, 84 South. 803; Smith v. Birmingham Realty Co., 208 Ala. 114, 94 South. 117. The subject-matter of the original statute (Code, 2967) was "venue of suits on bonds," and is contained in chapter 56, art. 5, "Attachments." The amendment was of matter germane to, suggested by, and supplemental to the subject of the "venue of suits on bonds," and extended the same to suits on attachment

against cosurety); City Nat. Bank v. Jeffries, 73 Ala. 183; and Durr v. Jackson, 59 Ala. 203 (action on attachment bond). Appellants' counsel insist that there was error in overruling demurrer to the complaint on the ground (1) that it fails to show such a contract between Hawkins and Bridges as would bind Hawkins to perform the contract, and (2) fails to show that such contract was interfered with by this injunction being sued out.

[3, 4] There was no misjoinder of parties. The real party to the record is Hawkins, who had the beneficial interest under the contract and was restrained in the execution thereof by the preliminary writ, and the suit is for his use. Smith v. Yearwood, 197 Ala. 680, 73 South. 384; Moody v. Jacobs (Ala. Sup.) 100 South. 467; Alabama Power Co. v. Hamilton, 201 Ala. 62, 77 South. 356; National Surety Co. v. Citizens' L., H. & P. Co., 201 Ala. 456, 460, 78 South. 834. Nor was there a misjoinder of causes of action by reason of the fact that the suit is rested on the several bonds for suing out and reinstating the injunction. National Surety Co. v. Citizens' L., H. & P. Co., supra. The count was not subject to the grounds of demurrer directed thereto.

[5] The lower court on the trial held to the view that the measure of the plaintiff Hawkins' damages embraced only the items of reasonable attorneys' fees and market value or reasonable hire of his teams and equipment during the time they were idle and unable to be given employment by him by reason of the injunction being sued out. Appellees' counsel insist that since the trial court required Hawkins to show that he sought to minimize the damage by trying to obtain employment for his outfit and teams (see Webb v. McFarlin & Co., 177 Ala. 531, 58 South. 453; Cato v. Williamson, 209 Ala. 477, 96 South. 321), the loss Hawkins may have sustained in the execution of the contract had he not been restrained in that execution was not properly the subject of inquiry. Such is the law of this case, in view of such rulings of the trial court as to the measure of damages. The reasonable value of the hire of the outfit in question was an element of damages that resulted naturally and as a proximate consequence of the wrong done the plaintiff Hawkins in the suing out of the injunction. Such damages, The several decisions of this court as to and also those included as reasonable atthe character of actions that may be main- torneys' fees, etc., are not remote, but are tained against the principal and sureties the direct and proximate result of the sugrowing out of the breach of duty under an ing out and reinstatement of the injunction. official bond or that given as a condition [6] We may say, however, of the rulings precedent to suing out or reinstatement of on evidence, that the witness Cleve Haw

or injunction bonds, and those of petitioning creditors, etc. Gen. Acts 1915, p. 880. The act violated no provision of organic law in so amending this statute. There was no error committed in sustaining demurrers to pleas in abatement.

[9] There was no error to refuse defendants' requested charges Nos. 12, 18, and 19, which sought to extend the inquiry of plaintiff's damages to profits he might have made or failed to realize under the contract. The court had stated to the jury that the only elements of damages submitted for their consideration were reasonable attorneys' fees and the market value of the hire of plaintiff's idle teams and outfit for the period indicated.

kins was properly permitted to testify that | tervened in the oral instructions to the jury. his "teams" in question "were trained to haul logs"; that he had competent and experienced men and cutters to handle them and to prepare the timber for hauling at the time the injunction was sued out; and that "the reasonable rental value of the logging outfit," including his own services, was “$25 dollars a day-the other fellow to feed them." The witness was further properly permitted to state the facts as to the reasonable cost per day to him to feed the teams, and to state the time he was permitted to work; that he tried to minimize his damages by getting other hauling to do for the period pending the injunction or reinstatement thereof; to state the amount of such work he did and the compensation received therefor; and to state the difference in the work contracted to be done, in the execution of which he was enjoined, and that he was forced to do in order to minimize his damages.

[7] There was no reversible error in allowing the witness to be asked, "At the time that sawmill was put down and you made that contract with Bridges, before you cut any of that timber off of that 320 acres, in your judgment how much saw timber was there on it?" and to answer "Something like a million feet." This tended to show the amount of time that would be required in the execution of his contract for cutting and hauling, had he not been enjoined, and that he would, in reasonable probability have been engaged in cutting and hauling for the time for which damages were claimed and allowed by the verdict. It was also competent to allow the witness to testify that at all times, within the period indicated, he [Hawkins] had kept and held his teams and outfit ready "to log the mill any minute the injunction was dissolved."

[8] The hypothetical question to the witness Stringer, a practicing attorney, and shown to be qualified, was sufficient and authorized the giving of opinion evidence of the value of services rendered. Miller v. Whittington, 202 Ala. 406, 80 South. 499; Pullman Co. v. Meyer, 195 Ala. 397, 70 South. 763; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 South. 604.

The matters sought to be set up by defendants as to the character of lumber cut by Hawkins, and how much McCord paid Bridges, were beside the issues being submitted to the jury.

It is not necessary to further discuss the evidence, or rulings on the introduction of same. We find no error.

There was no error in overruling the motion for a new trial. The evidence supported the complaint, and authorized the verdict. The judgment of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.

GARDNER, J. Suit by appellant against appellee upon a promissory note. The de fendant is the wife of A. W. Beck, and her defense is rested upon the theory that the note sued upon was given as security for the debt of the husband in violation of section 4497 of the Code of 1907, which provides that "the wife shall not, directly or indirectly, become the surety for the husband."

The cause was tried before the court without a jury. Plaintiff rested his case upon the introduction of the note, and did not offer other proof or himself testify during the progress of the cause. The defendant and her husband testified orally before the court, and upon conclusion of the evidence the court entered judgment for defendant, from which plaintiff has prosecuted this ap

The portions of the oral charge to which exceptions are reserved are not available to appellants, when the other portions of that charge defining and limiting the measure of plaintiff's damages are considered. No error for which defendants could complain in- peal.