formed. In the oral argument it was stated | briefs and argument of counsel for the respec that one of the objects of the suit in the federal court was to enforce an asserted lien against the property, and that an order enjoining its sale or disposition had been entered prior to the attachment in this action. Accepting as true, as we must, the finding of fact of the trial court, an application of the principle announced requires an affirmance of the judgment. Affirmed. WHITFIELD, P. J., and TERRELL, J., concur. tive parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said decree. It is therefore considered, ordered, and adjudged by the court that the said decree of the circuit court be and the same is hereby affirmed. TAYLOR, C. J., and ELLIS and BROWNE, JJ., concur. TAYLOR, C. J., and ELLIS and BROWNE, Sarah S. DEAN, Appellant, v. John W. DEAN, JJ., concur in the opinion. Appellee. (Supreme Court of Florida, Division B. May 14, 1924.) Appeal from Circuit Court, Brevard County; Irene WARE, E. A. Ware, Her Husband, and J. J. Dickinson, Judge. A. L. Durrance, Appellants, v. J. V. (Supreme Court of Florida, Division B. Jan, 7, 1924. Rehearing Denied James L. Mitchell, of Titusville, for appellant. Butt & Collins, of Melbourne, for appellee. PER CURIAM. This cause having heretofore been submitted to the court upon the Coun-transcript of the record of the decree herein and briefs and argument of counsel for the re Appeal from Circuit Court, Highlands ty; George W. Whitehurst, Judge. R. E. Brown, W. D. Bell, and Treadwell & spective parties, and the record having been Treadwell, all of Arcadia, for appellants. Leitner & Leitner, of Arcadia, for appellee. PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the decree herein and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said decree. It is therefore considered, ordered, and adjudged by the court that the said decree of the circuit court be and the same is hereby affirmed. WHITFIELD, P. J., and WEST and TER advised of its judgment to be given in the RELL, JJ., concur. premises, it seems to the court that there is no error in the said decree. It is therefore considered, ordered, and adjudged by the court that the said decree of the circuit court be, Lucile PERO, Plaintiff in Error, v. Chas. J. and the same is hereby, affirmed. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur. Harry A. DENMAN, Appellant, v. Caroline (Supreme Court of Florida, Division A. CORLEY, Defendant in Error. (Supreme Court of Florida, Division B. May 7, 1924.) Error to Circuit Court, Dade County; H. F. Atkinson, Judge. James M. Carson and John M. Murrell, both of Miami, for plaintiff in error. Gautier & Neeley, of Miami, for defendant in error. PER CURIAM. The declaration herein does Appeal from Circuit Court, Duval County; not wholly fail to state a cause of action; Daniel A. Simmons, Judge. therefore the demurrer thereto should have been overruled. See Wertz v. Tampa Electric Co., 78 Fla. 405, 83 South. 270; Peterson v. Oscar Daniels Co., 83 Fla. 29, 90 South. 621. The judgment rendered on the demurrer is reversed. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur. Robert E. MOORE, Appellant, v. H. H. HOLDER, Jr., Appellee. (Supreme Court of Florida, Division B. May 7, 1924.) (100 So.) Appeal from Circuit Court, Lake County; J. C. B. Koonce, Judge. J. R. Bedgood, of Eustis, for appellant. PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the order herein and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment, to be given in the premises, PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the decree herein and briefs and argument of counsel for the respec-. tive parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said decree. It is therefore considered, ordered, and adjudged by the court that the said decree of the circuit court be and the same is hereby affirmed. TAYLOR, C. J., and WHITFIELD, ELLIS, BROWNE, and WEST, JJ., concur. TERRELL, J., disqualified. THOMAS et al., Defendants in Error. it seems to the court that there is no error in K. S. PARRISH, Plaintiff In Error, v. Joe the said order. It is therefore considered, ordered, and adjudged by the court that the said order of the circuit court be and the same is hereby affirmed. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur. (Supreme Court of Florida, Division В. May 24, 1924.) T Error to Circuit Court, Manatee County; M. A. McMullen, Judge. John B. Singeltary, of Bradentown, for plaintiff in error. Mabry, Reaves & Carlton, of Tampa, for de Patrick BANNON et ux., Appellants, v. TOWN fendants in error. (Supreme Court of Florida, Division B. 7 Appeal from Circuit Court, Polk County; John S. Edwards, Judge. Patrick Bannon, for appellants. R. B. Huffaker, of Bartow, for appellee. PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the decree herein and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said decree. It is therefore considered, ordered, and adjudged by the court that the said decree of the circuit court be and the same is hereby affirmed. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur. Freeman SHELDON, Appellant, v. DADE DRAINAGE DIST., a Drainage District Organized and Existing under the Laws of the State of Florida, and E. R. Graham, A. E. Sargent, and J. E. Lummus, as the Board of Supervisors of sald Dade Drainage District, Appellees. PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the judgment herein and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said judgment. It is therefore considered, ordered, and adjudged by the court that the said judgment of the circuit court be and the same is hereby affirmed. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur. (Supreme Court of Florida. May 29, 1924.) transcript of the record of the judgment herein considered, ordered, and adjudged by the court that the said judgment of the circuit court be and the same is hereby affirmed. See Friedenwald Co. v. Warren, 195 Mass. 432, 81 Ν. E. 207; Ronnoe Grove Co. v. Coe-Mortimer Co., 83 Fla. 370, 91 South. 265; section 4098, Revised Gen. Stats. En Banc. Appeal from Circuit Court, Dade County; H. F. Atkinson, Judge. Norris McElya, of Miami, for appellant. Evans & Mershon, of Miami, for appellees. and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said judgment. It is therefore Affirmed. it was not error to admit such memorandum as true copy, together with plaintiff's testimony. Appeal from Morgan County Court; W. T. Lowe, Judge. Action for conversion and wrongful taking of cotton by Clyde Sharpe and Ernest Weinmann, doing business as Clyde Sharpe & WHITFIELD, P. J., and WEST and TER- Co., against A. Polytinsky and Sam PolytinRELL, JJ., concur. Fulton SAUSSY, etc., Appellant, v. UCITA (Supreme Court of Florida, Division A. May sky. Judgment for plaintiff against A. Polytinsky, and he appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed. Wert & Hutson, of Decatur, for appellant. Sample & Kilpatrick, of Hartsells, for appellees. GARDNER, J. This suit arose from the purchase by appellant of certain cotton from Appeal from Circuit Court, Duval County; one Parker who had previously executed a Daniel A. Simmons, Judge. Cromwell Gibbons and Paul D. McGarry, both of Jacksonville, for appellant. C. M. Cooper and Chas. P. & J. J. G. Cooper, all of Jacksonville, for appellees. PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the decree herein and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said decree. It is therefore considered, ordered, and decreed by the court that the said decree of the circuit court be and the same is hereby, affirmed. mortgage to appellees embracing these crops. The case of A. Polytinsky versus Johnston arose likewise, and we find that many of the assignments of error here urged are answered by the opinion in that case, and need no further consideration here. See A. Polytinsky v. Johnston (Ala. Sup.) 99 South. 839. [1] One of the questions not ruled upon in the above authority relates to the action of the court in sustaining objections of the plaintiff to defendant's proffered proof to the effect that at the time of the suit and prior thereto the mortgage under which plaintiffs claim title had been placed by plaintiffs with the First Mortgage Company as collateral security. Plaintiffs had the mortgage and produced it at the trial. This question was con TAYLOR, C. J., and ELLIS and BROWNE, sidered by the Court of Appeals in Fairbanks JJ., concur. POLYTINSKY v. SHARPE et al. (Supreme Court of Alabama. May 22, 1924. v. Chunn, 2 Ala. App. 642, 56 South. 847, where it was held that, under circumstances as here appear, the fact of a transfer of the mortgage as collateral security did not affect the plaintiff's right to recovery. We approve the conclusion of the court in that case, and consider that it fully answers the question here presented. 1. Pledges-37-Transfer of mortgage as We are of the opinion that while the evicollateral security does not preclude mort. dence was not of a positive and direct chargagee's recovery from purchaser from mort-acter, it was sufficient for submission to the gagor. That fact that a mortgagee of cotton has transferred the mortgage as collateral security does not affect its right to recover from purchaser from the mortgagor, 2. Evidence 186(6)-Admission of memorandum as true copy of defendant's books not produced by him held not error. In mortgagee's action against purchaser of cotton from mortgagor, where defendant admitted that he kept book entry showing purchases made and that he failed to produce same upon demand because they were lost, thus rendering secondary evidence thereof admissible, and plaintiff testified that he had previously examined such entries and made a copy show jury that the cotton purchased was embraced within the mortgage and its value, and that the affirmative charge was therefore not due to be given in behalf of defendant for a total lack of such proof. [2] In Polytinsky v. Johnston, supra, it was held the trial court committed no error in permitting plaintiff to testify that he inspected defendant's cotton book which was shown him, and that it disclosed the purchase of the bale of cotton there in question. Demand had been made on defendant to produce the book, and it was held his failure or refusal to comply therewith rendered secondary evidence of its contents admissible. The ing "just what his (plaintiff's) book showed," | evidence was admissible as an admission. 17 1 (100 So.) Сус. 397. Upon original consideration of this cause we were of the opinion all questions not further treated in the original opinion had been decided in the Johnston Case, supra, including the question as to admissibility of this secondary evidence. ROUNTREE et al. v. SATTERFIELD. (8 Div. 604.) (Supreme Court of Alabama. May 15, 1924. Rehearing Denied June 19, 1924.) 453-Bill for foreclosure held to seek accountings against three defendants as incident to foreclosure. Bill to foreclose mortgage held to seek respective accountings against three purchasers of timber for the several wastes committed and conversions of timber with notice of mortgage, and to charge each respective defendant with his separate and respective liability as incident to the relief of foreclosure. 2. Mortgages 427 (4) 497(2)-Mesne purchaser with notice of mortgage is a proper but not a necessary party to foreclosure proceedings. Upon application for rehearing, however, 1. Mortgages counsel for appellant insist such is not the case. We find a point of differentiation which escaped our notice. In the instant case plaintiff, as in the Johnston Case, examined defendant's cotton book, showing from whom he purchased the cotton, the amount, and price. It was admitted by defendant that he kept such book, and that demand had been made for its production, and that it had been lost. Plaintiff then testified that he found in these books entries showing the purchase of certain bales of cotton from R. H. Parker, with date of purchase and weight of each. He then testified that he made a copy of that part of the book showing the purchase of cotton from Parker, and that the copy he made "shows just what his book showed." This memorandum was admitted in evidence over defendant's objection, and this is insisted on as error. Counsel refer to those authorities that hold memoranda inadmissible when used to refresh recollection of the witness. Calloway v. Varner, 77 Ala. 541, 54 Am. Rep. 78; Acklen v. Hickman, 63 Ala. 494, 35 Am. Rep. 54. These authorities are not applicable. The memorandum was not one merely to refresh the memory of the witness, but a true copy, made by the witness, of defendant's book, as to which secondary evidence was admissible. The distinction is drawn in the Acklen Case, supra, where the court says (citing 1 Greenleaf on Evidence, § 436): "If, however, the witness go further and testify that, at or about the time the memorandum was made, he knew its contents, and knew them to be true, this legalizes and lets in both the testimony of the witness and the memorandum. The two are the equivalent of a present, positive statement of the witness, affirming the truth of the contents of the memorandum." See, also, Bolling v. Fannin, 97 Ala. 619, 12 South. 59. In Foster & Rudder v. Smith, 104 Ala. 248, 16 South. 61, a memorandum of the account, which the witness testified was correct, was permitted to go to the jury as an aid to them in recollecting the testimony of the witness as to what were the correct items of the account. The court did not err in admitting the memorandum. The application for rehearing will be denied, and the judgment stand affirmed. Affirmed. A mesne purchaser of mortgaged premises, with notice of the mortgage, having parted with his title thereto, is not a necessary party to the foreclosure, but is a proper party against whom the action may be prosecuted, and may defend action, and will be bound by the decree. 3. Equity 148(3)-Bill seeking damages for waste against purchasers of timber held not multifarious. Bill to foreclose mortgage, seeking as incident to recover for the several wastes committed and conversions of timber by purchasers thereof, with notice of mortgage, held not multifarious, under Code 1907, § 3095. 4. Mortgages427(2) - Original mortgagee held not necessary party in foreclosure proceeding by assignee. Where foreclosure bill of mortgagee's assignee alleged that assignee had purchased notes and mortgage, and that he was legal owner and holder thereof, the original mortgagee was not a necessary party. 5. Mortgages 445 Foreclosure bill need not show insolvency of mortgagors. Mortgage foreclosure bill seeking to charge purchasers of timber with liability need not show insolvency of mortgagors. 6. Mortgages 380-Remedies of mortgagee stated. Mortgagee or assignee may either bring bill to foreclose equity of redemption and sell property for satisfaction of debt and have deficiency decree against mortgagor, or may maintain an appropriate action for the possession of the property, and in a proper action get possession of the rents and profits, or may bring suit for debt on the bond. Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge. Bill in equity by J. B. Satterfield against Columbus W. Kyle, Martha Kyle, J. H. Holt, Charles Rountree, and the Rountree Lumber Company, to foreclose a mortgage and to recover the value of timber cut from the ANDERSON, C. J., and SOMERVILLE and mortgaged premises. From a decree overTHOMAS, JJ., concur. ruling their demurrer to the bill, Charles For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Rountree and the Rountree Lumber Company amount of the value thereof received by each appeal. Affirmed. Tennis Tidwell, of Albany, for appellants. Mallory & Mallory, of Selma, and G. O. Chenault and Eyster & Eyster, all of Albany, for appellee. of said persons. Complainant further prays that said mortgage be foreclosed and the land therein conveyed be sold, for the payment of the balance due on said mortgage, to date, together with interest thereon, and that, as a part of said mortgage debt, a reasonable fee for complainant's solicitors be ascertained THOMAS, J. The bill was for foreclosure and decreed." of a mortgage on land. The agreement and appearance of counsel bring all necessary parties before the court under General Acts 1911, p. 589, amending section 2884 of the Code of 1907. L. & N. R. R. Co. v. Shikle, 206 Ala. 494, 90 South. 900; Sherrod v. McGruder, 209 Ala. 260, 96 South. 78; New Morgan County B. & L. Ass'n v. Plemmons, 210 Ala. 16, 97 South. 46; Smith v. Collier, 210 Ala. 23, 97 South. 101. Was the bill as amended, excepting, as it does, defendants Charles Rountree and Rountree Lumber Company from the claim for attorneys' fees, free from the grounds of demurrer assigned by said Charles Rountree and Rountree Lumber Company on their appeal? The bill was by a mortgagee or an assignee of the mortgagee for foreclosure and discovery and accounting for waste alleged to have been committed by the mortgagor with the other named defendants by cutting and selling timber; that is to say, the Kyles gave the mortgage to Boynton, who transferred to complainant, and after record of the mortgage the Kyles cut and sold the timber to Holt, Rountree, and the Rountree Lumber Company. The averments are: "Complainant further alleges that a large quantity of timber that was growing upon said lands, at the time of the execution of the mortgage, has been cut and removed therefrom, not for ordinary use, but that the same was sold by the mortgagors to respondents J. H. Holt, Charles Rountree, and Rountree Lumber Company, for the amount of several hundred dollars, and respondents Charles Rountree, Rountree Lumber Company, and J. H. Holt, after the record of said mortgage, and after the same became the property of complainant, obtained timbers and lumber cut from said land of the value of several hundred dollars, and converted the same to their own use; they, at the time, having actual, or constructive notice of the existence of said mortgage upon said land." The prayer of the bill contains, among other usual averments and prayer for general relief, the specific prayer: "* * That the court, by reference to the register, or other proper way, ascertain what timbers, if any, were cut from the mortgaged property, and were obtained by J. H. Holt, Charles Rountree, and Rountree Lumber Company, after the transfer of said mortgage to this complainant, and the value of the same that was received by each of said defendants, and that a judgment be rendered against each of said parties, as and for a tort, for the conversion of said timber and lumber, to the full [1] When the bill is taken most strongly against the pleader, it may be said to seek respective accountings against the three de fendants for the several wastes committed and conversions of the timber from the mortgaged lands with notice of the mortgage, and to charge each respective defendant with his or its separate and respective liability as incident to the relief of foreclosure of the mortgage. In the case of Hitt Lumber Co. v. Cullman Property Co., 189 Ala. 13, 66 South. 720, the bill was to enjoin trespass and for the re covery of damages for cutting timber from the lands of complainant; held that, in seeking injunction to prevent repeated trespasses in the cutting of timber and for damages for the timber already cut by defendant corporation, and by the partnership before its incorporation, and by its individual members, the bill is multifarious, and not cured by section 3095 of the Code. That opinion concluded with the admission that it is often impossible to declare any fixed or abstract rule that will determine in all cases as to whether or not a bill is multifarious. Webb v. Butler, 192 Ala. 287, 68 South. 369, Ann. Cas. 1916D, 815. In Sims Chancery Practice, § 236, pp. 145, 146, the author says: "Chief Justice Brickell's definition.-Few other definitions of multifariousness seem to have been given by the Supreme Court, until Chief Justice Brickell in 116 Ala." (Truss v. Miller, 116 Ala. 494, 505) "paraphrasing Story, said: 'It is said that multifariousness, as an objection to a bill, is not capable of accurate definition. It is described generally, as the joinder of distinct and independent matters, thereby confounding them; or the uniting in one bill of several matters, perfectly distinct and unconnected against one defendant; or the demand of several matters of a distinct and independent nature against several defendants in the same bill.' By comparison with the paragraph cited from Story's Equity Pleading" (section 271 et seq.) "it is apparent that the definition was intended to cover all three kinds of multifariousness. "Since Chief Justice Brickell's classification, none seems to have been attempted. But each of the three kinds of multifariousness has been recognized by many of our Supreme Court decisions. So we may conclude that in general multifariousness in Alabama and multifariousness in England were the same prior to the enactment of the new Alabama Code of 1907." See, also, Burford v. Steele, 80 Ala. 147. |