facie, at least, want of his authority. The proceeding may be by motion to vacate the appearance, to dismiss the action, or for an order requiring authority to be shown: Turner v. Caruthers, 17 Cal. 431; Bonnifield v. Thorp, 71 Fed. 924. An objection to the right of an attorney to appear for a party must always be made by motion: People v. Lamb, 85 Hun, 171, 32 N. Y. Supp. 584; and the authority of an attorney to appear for a party to an action in a court of record may be controverted while the action is pending. This question may be raised upon due notice by sworn petition, or by motion supported by proper affidavit to vacate the appearance for want of authority, and if an issue is made upon such petition, or motion, it may be tried and determined by the court as other issues of fact: Dillon v. Rand, 15 Colo. 372, 25 Pac. 185. If a statute provides that the court may, on motion of either party, require the attorney for the adverse party to produce and prove authority under which he appears, and until this is done may stay all proceedings by him in behalf of the party for whom he assumes to act, it provides the exclusive method of testing the authority of the attorney to act: State v. Beardsley, 108 Iowa, 396, 79 N. W. 138. An order granted on motion to compel au attorney of the plaintiff to produce his authority for using the plaintiff's name must direct that the authority be produced to the court granting the order, and state the time and place at which it is required to be presented: Turner v. Davis, 2 Denio, 187, 2 How. Pr. 86. If it is desired to question an attorney's authority to appear, an affidavit with a request for the proper rule in the court where the action is pending is one method which may be adopted: Williams v. Butler, 35 Ill. 544.

If an action is brought in the name of a town, and it is shown that the pendency of the action was known to its inhabitants, and had been reported at a town meeting without opposition, the plaintiff's proceedings will not be stayed on motion of the defendant made on the ground that the attorney had no authority to bring the action: Town of Delhi v. Graham, 3 Hun, 407.

In case it appears from the affidavits that the attorney appearing for a party may not have been invested with authority to represent him in the action, it is error to deny a motion to compel such attorney to disclose his authority: Hollins v. St. Louis etc. R. R. Co., 57 Hun, 139, 25 Abb. N. C. 93, 11 N. Y. Supp. 27.

C. Authority must be Denied Under Oath.-The attorney's authority to appear must always be denied under oath: Kelly v. Benedict, 5 Rob. 138, 39 Am. Dec. 530; Postal Tel. Cable Co. v. Louisville etc. Ry. Co., 43 La. Ann. 522, 9 South. 119; City of New Orleans v. Steinhardt, 52 La. Ann. 1043, 27 South. 586. If a person repudiates the authority of an attorney at law, who acted for him, it is necessary that it should be supported by his own oath and not that of an agent: Boykin v. Holden, 6 La. Ann. 120. But in Louisiana it is not absolutely necessary that an affidavit be first made as a condi

tion precedent to the admission of evidence of the want of the authority in an attorney to appear for a party, as it is permissible for such party to first go on the stand and testify on the subject: Bender v. McDowell, 46 La. Ann. 393, 15 South. 21.

d. Sufficiency of Affidavit.—The authority of an attorney in a suit may always be questioned by an affidavit and on the production of sufficient proof, and he may be required to show his authority, but an affidavit stating that the party was informed and believed, and had good reason to believe that the attorney had no authority to appear, is not sufficient foundation for a rule against the attorney to show his authority: Valle v. Picton, 16 Mo. App. 178, 91 Mo. 207, 3 S. W. 860; People v. Mariposa Co., 39 Cal. 683; Robinson v. Robinson, 32 Mo. App. 88; Staudefer v. Dowlin, Hempst. 209, Fed. Cas. No. 13,284a. Such an affidavit is not sufficient to overcome an affi davit by the attorney that he has such authority: Bonnifield v. Thorp, 71 Fed. 924. The affidavit must state circumstances rendering it probable that the action was unauthorized, and it is not enough to swear to a mere impression or belief: Bonnefoy v. Landry, 4 Rob. 23; and an affidavit by plaintiff that he believed that neither the person who employed defendant's attorney nor the attorney himself had authority to appear in the cause is insufficient to require the attorney to make proof of his authority: Wright v. Allen, 26 Wis. 661. To the same effect is Savery v. Savery, 8 Iowa, 217. As a general rule, a court ought not to entertain a motion for a rule against an attorney to show his authority to prosecute a suit if the motion is made at the term when the case is to be tried and the issue has been made at a former term, and if allowed at such a stage of the proceedings, the affidavit on which the rule is based must at least state facts which render it highly probable that the attorney is prosecuting the case without authority: Low v. Settle, 22 W. Va. 387; and in order to invoke the exercise of the power of the court to question an attorney's authority to appear, the party must show by his affidavit facts at least tending to show that such attorney does not possess the authority assumed. A mere affidavit by opposing counsel, who moves to dismiss for want of authority in the attorney to appear, on an affidavit that he is informed and believes that the attorney was not authorized to appear on the trial, when unsupported by other evidence, is insufficient to overcome the presumption of such attorney's authority to appear: People v. Mariposa Co., 33 Cal. 683. But on a motion to dismiss an action commenced by an attorney without authority, allegations in the moving affidavits as to lack of authority, not contradicted or explained, must be taken to be true: Commissioners of Excise v. Purdy, 13 Abb. Pr. 434. IX. Authority of Attorney cannot be First Questioned on Appeal. So far as can be discovered, it is a universal rule that the question as to whether one of the attorneys of one of the parties to a suit was unauthorizd to appear for him cannot be first raised on ap

peal, and this is especially true when no objection to his appearance was first made in the court below: Moon v. Easley, 18 Ala. 619; Cochran v. Leister, 2 Root, 348; Sanderson v. Town of La Salle, 117 Ill. 171, 7 N. E. 114; Ryors v. King, 48 Ind. 237; McGarry v. New York County Supervisors, 31 N. Y. Super. Ct. (1 Sweeney), 217; Abernathy v. Latimore, 19 Ohio, 286; Bingham's Trustees v. Guthrie, 19 Pa. 418; Fowler v. Morrell, 8 Tex. 153. The question of the authority of an attorney who signed and filed a pleading in a cause cannot be raised for the first time on appeal: McIlhenny v. Binz, 80 Tex. 1, 26 Am. St. Rep. 705, 13 S. W. 665. The appellate court cannot originate an inquiry as to the authority of an attorney to appear for a party in the lower court upon an appeal from the judgment thereof: Talbot v. McGee, 4 T. B. Mon, 375.

FLEMING v. WALKER.

[152 Ala. 386, 44 South. 536.]

EXECUTORS AND ADMINISTRATORS Coexecutors-Devastavit-Liability.-A devastavit by one of two or more executors or administrators does not charge his coexecutor unless he has intentionally or otherwise contributed to it, or made himself liable by the execution of a bond. (pp. 46, 47.)

EXECUTORS AND ADMINISTRATORS-Coexecutors or Trustees-Devastavit-Liability.-If funds in the hands of an executor have never been transferred from himself as such executor to himself and another as coexecutors or cotrustees, the latter is not liable for a devastavit of such fund committed by the coexecutor. (p. 47.)

Action against one Fleming and one Billing, as cotrustees for one W. Alsop, for an accounting by them as trustees of said Alsop, and as the executors of the estate of Sarah Alsop, and to charge Fleming for a devastavit committed as to the funds of W. Alsop. Judgment against defendants charging them as trustees, but not as executors, with a devastavit committed by Billing. Fleming appealed from such judgment, and the plaintiffs prosecuted a cross-appeal from the decree discharging the defendants as executors.

Rushton & Coleman, for the appellants and cross-appel

lees.

Gunter & Gunter and T. W. Martin, for the appellees and cross-appellants.

389 ANDERSON, J. "The rule is that a devastavit by one of two or more executors or administrators shall not charge

his companion, provided he has not intentionally or otherwise contributed to it," and, of course, upon the further fact that he has not made himself liable by the execution of a bond: Turner's Exrs. v. Wilkins, 56 Ala. 173; Knight v. Haynie, 74 Ala. 542; Williams v. Harrison, 19 Ala. 277; 2 Woerner's American Law of Administration, sec. 738; Hinson v. Williamson, 74 Ala. 180. It appears from the evidence. that the entire fund left by the testatrix, Mrs. Alsop, had been loaned Billing, and he held it as her debtor up to the time of her death. Conceding that Billing, who was in possession of the fund through his bank, an institution owned and controlled by him, became chargeable as executor, upon assumption of office as such (Seawell v. Buckley's Distributees, 54 Ala. 592), there was no proof that his coexecutor, Fleming, ever acquired the control or custody of the fund, or in any way directed the management or control thereof as coexecutor, and was not, therefore, liable for the devastavit of Billing, if committed in his executorial capacity and not as trustee.

It is insisted that the same rule of liability for the devastavit of a coexecutor or coadministrator does not apply to cotrustees, and that they are charged with a greater degree of care as to the trust fund than the former, and that they may be made liable for a mere acquiescence 390 or neglect to bring their cotrustee to a speedy account. Whether this be a recognized distinction or not we need not determine, for the reason that Fleming cannot be held liable as a cotrustee unless the devastavit by Billing was committed while the fund was held by him as trustee for Walter Alsop, and not as one of the executors of the estate. In order to establish this liability the partial settlement by the executors with some of the legatees, other than Walter, in which the larger portion of the personal assets of the estate was distributed, is relied upon as showing that the fund belonging to Walter was in legal effect transferred from Billing as executor to Billing as trustee. The proof, according to our finding, establishes no more than a mere retention of the fund belonging to Walter by Billing along with the other personal assets belonging to the estate not distributed to the other legatees; and clearly the mere retention by Billing, in the absence of an affirmative act showing his intention to hold it as trustee, did not operate to terminate his liability as executor and impose a liability upon him in his capacity as trustee, for the obvious reason that his holding may be as well referred to his representative capacity as executor as that of trustee. Indeed, the retention must be

referred to Billing's executorial capacity, unless it be made to appear "by some plain and unequivocal act" that he elected to hold the fund in his capacity as trustee: Governor v. Read, 38 Ala. 252; Perkins v. Moore, 16 Ala. 9; Davis v. Davis, 10 Ala. 299.

The judge of the city court erred in holding Fleming liable as a cotrustee, but correctly held that he was not liable as coexecutor. The decree of the city court is reversed, and one is here rendered dismissing the bill as 391 to Fleming on the original appeal, and affirming the decree on cross-appeal. Reversed and rendered on original appeal, and affirmed on cross-appeal.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.

One Executor is not Liable, as a rule, for waste committed by a coexecutor, nor for assets which the latter received and misapplied without his knowledge or consent: Municipal Court v. Whaley, 25 R. I. 289, 105 Am. St. Rep. 890, and see cases cited in the cross-reference note thereto.

MCDANIEL v. SLOSS-SHEFFIELD STEEL AND IRON COMPANY.

[152 Ala. 414, 44 South. 705.]

ADVERSE POSSESSION-What Constitutes.--To constitute an adverse possession, there must be an actual occupancy, clear, definite, positive and notorious, and it must be continued, adverse, and exclusive during the whole period prescribed by the statute, with an intention to claim title to the land occupied. (pp. 49, 50.)

ADVERSE POSSESSION-Defective Right or Title.-Possession of land, to be adverse, must be under claim of right or title if the occupant knows his title to be defective. (p. 50.)

ADVERSE POSSESSION-Character of. If one enters upon land, with knowledge that he has no title thereto, but thinking that it belongs to the United States government, he does not hold adversely to the true owner though he cuts timber on the land at various places and times, and cultivates a field for an indefinite time. (p. 50.)

J. D. Strange and J. D. Cruse, for the appellant.

Percy & Benners and Tillman, Grudd, Bradley & Morrow, for the appellees.

416 SIMPSON, J. These two cases were tried together and submitted here together by agreement. The bills were filed by the appellant, and sought to quiet the title as against both