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The defense set up in plea 7 is that

South. 994; B. R., L & P. Co. V. Ætna A. “The plaintiff in this cause entered into and & L. Co., 184 Ala. 601, 64 South. 44; A. C. was party to the agreement with J. A. Kyle, G. & A. R. Co. v. Kyle, 204 Ala. 597, 87 South. register, to pay him the fund now sued for, and 191; Winter-Loeb Gro. Co. v. Boykin, 203 said funds were paid to said Kyle by consent Ala. 187, 82 South. 437. The complaint alof J. C. Jacobs, plaintiff herein, and he cannot leges the facts; and among other things it now collect same because paid by him, or with is a verred: his knowledge and consent, for use of said fund by the plaintiff or his bank. Plaintiff was in “Said decreal (decretal] order allowed said pari delicto and cannot sue."

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.

well executed in writing an assignment of his Ernest Parks, of Scottsboro, for appellee. right to redeem under said decree to Hamlin

Caldwell, and on the 15th day of August, 1914, THOMAS, J. The trial was bad without a

said E. H. and Hamlin Caldwell assigned their jury on complaint and special pleas—among J. C. Jacobs, the plaintiff in this cause, and

right of redemption under said mortgage to others, No. 7-and resulted in judgment for said deposit was made in pursuance of said deplaintiff. Material testimony was given ore creal (decretal) order. And plaintiff avers that tenus. The register had put in bank at in- said Hamlin Caldwell as a matter of fact borterest funds deposited with that official for rowed said sum of money from this plaintiff, redemption of mortgage. Hackett v. Cash, and that he paid and is to pay plaintiff inter196 Ala. 403, 72 South. 52; Andrews v. Grey, est on said sum, and said Hamlin Caldwell was 199 Ala. 152, 74 South. 62; Gray v. Handy, and is liable to plaintiff for principal and in204 Ala. 559, 86 South. 548. However, since A. Kyle deposited in his name the said sum of

terest on said sum. Plaintiff avers that said J. the evidence is without conflict, there is no $2,407.77 in the J. C. Jacob's Banking Comoccasion for the application of the rule stat- pany's Bank in Scottsboro, Ala., on the 15th ed in the cited cases.

day of August, 1914, where said deposit re[1] It is provided that, if any official mained until the 23d day of January, 1917, named in the statute knowingly converts to when said sum was transferred on the books his own use, or permits another to use, any of said bank from said Kyle's account to that money paid into his office, or received by of said B. F. Shook, register. Plaintiff further

avers that while said sum of money was on him in his official capacity, he is liable to deposit in said bank, to wit, from the 15th day prosecution for embezzlement. Code, § 6838: of August, 1914, to the 23d day of January, Ex parte Cowart, 201 Ala. 55, 77 South, 349; 1917, said J. A. Kyle collected from said bank Gerald v. Walker, 201 Ala. 502, 78 South. $237.77, as interest on said redemption funds 856; State v. Montgomery Savings Bank, so deposited, and when said J. A. Kyle, register 199 Ala. 365, 74 South. 942; Clisby v. Mas- aforesaid, turned the office and all books, papers, tin, 150 Ala. 132, 43 South. 742, 124 Am. St. and moneys belonging thereto to his successor Rep. 64; Alston v. State, 92 Ala. 124,9

South. in office, the said B. F. Shook, he failed to turn

over to said B. F. Shook, register, said $237.77, 732, 13 L. R. A. 659; Lacey v. State, 13 Ala. belonging to plaintiff, or to deliver said sum App. 212, 68 South. 706, certiorari denied to plaintiff or to any one legally authorized to in 193 Ala. 677, 69 South. 1018. It follows receive said sum of money." 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 noted that it is averred in the complaint the legal interest thereon. Clisby V. Mas- that the right of redemption under said tin, 150 Ala. 132, 43 South. 742, 124 Am. St. mortgage in Hamlin and E. H. Caldwell Rep. 64; McPhillips v. McGrath, 117 Ala. was assigned to J. C. Jacobs on August 15, 549, 23 South. 721.

1914, the same day the deposit at interest By reason of the matter set up in special in the bank of J. C. Jacob's Banking Complea No. 7, it is important that we deter-pany was made by J. A. Kyle. The evidence mine from the pleading and evidence who shows that J. C. Jacobs was the president of the real plaintiff was-whether J. C. Ja- the bank, and agreed with Hamlin Caldwell cobs or Hamlin Caldwell.

to furnish said moneys and to redeem the [2] In a suit in the name of a person mere- Caldwell interest in the land for the purly holding the legal title for the use of a pose indicated; and J. C. Jacobs gave therebeneficiary, the latter is regarded the par- for his individual check to Caldwell or Kyle, ty to the record. Code, $ 2490; Smith v. and same was deposited by Kyle in the bank. Yearwood, 197 Ala. 680, 73 South. 384; U. The alleged beneficiary, Hamlin Caldwell, S. S. B. v. Sherman, 208 Ala. 83, 93 South. testified that he "made the arrangements 834; Ex parte Bromberg, 121 Ala. 361, 25 with J. C. Jacobs to furnish the money for

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(100 So.) 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," por did he on account of costs. "authorize J. C. Jacobs to receive any inter

“This the 21st day of Nov., 1917.

"E. H. Caldwell. est on that money deposited"; and that wit

“Hamlin Caldwell. ness was "liable to J. O. Jacobs for the funds

"Filed Nov. 23d, 1917. so deposited" in court.

"B. F. Shook, Register." The plaintiff introduced H. G. Jacobs as a witness, who testified:

[3] When the undisputed evidence is con

sidered, it cannot be said that Hamlin Cald"I am the cashier of J. C. Jacobs Banking well was not the beneficiary in the suit, and Company, and the son of J. C. Jacobs, who was president of the company in 1914 and

a party to the transaction with Jasince. J. A. Kyle, as register deposited the cobs or Kyle in the deposit of the money in Caldwell money shown by the report with J. C. bank at interest. As to Kyle and Jacobs, Jacobs Banking Company in the name of J. A. the contract to pay interest was against pubKyle, register, on or about the 15th of August, lic policy, and as between those parties the 1914. The bank paid Mr. Kyle interest at two law would leave them as found. As stated, different dates on this money, namely, July 27, this is not the case with Hamlin Caldwell 1916, $192, and on January 23, 1917, $45.77. (the real plaintiff), who, after the money On the last date named Mr. Kyle transferred to B. F. Shook, register, the sum of $2,407.93 was paid to J. C. Jacobs as for the order of of this fund."

date November 21, 1917, owed the difference

between the sum so returned and that borThe bill of exceptions then recites:

rowed, with interest.

The judgment of the circuit court is af"Witness further stated that neither he nor

firmed. J. C. Jacobs Banking Company is interested in the result of this suit."

Affirmed.

ANDERSON, C. J., and SOMERVILLE and The witness testified on cross-examination As follows:

MILLER, JJ., concur.

"That was the only fund that J. A. Kyle, reg. ister, had on deposit on savings account. This was carried on the savings account, and we paid interest on it. My best recollection is that

McCORD et al. v. BRIDGES et al. it was agreed between J. A. Jacobs and J. A.

(7 Div. 357.) Kyle at the time the redemption fund was paid to Mr. Kyle that he would leave it with our (Supreme Court of Alabama. April 10, 1924. bank on savings account. My father, J. C. Ja

Rehearing Denied May 15, 1924.) cobs, was to redeem the land for Hamlin Caldwell

. Papa gave his check either to Caldwell of Kyle, I don't know, and that check was de- / .. Statutes Em 148–Subject of amendment by

reference to title must be germane to original posited on savings account to the credit of J.

section. 4. Kyle, register, pursuant to an understanding to the effect. My judgment is that the agree

When section of Code is amended by refer. ment was made contemporaneous with the re

ence to its title, subject added by amendment demption of the land.

It was all planned to- must be germane to, suggested by, and supplegether."

mental to subject-matter of original section. On rebuttal the witness said:

2. Statutes 148Amendment by reference

to title held valid. "I don't remember the arrangements they Act Sept. 29, 1915 (Acts 1915, p. 880), made. If I was present I don't remember it." 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:

to original section. "E. H. & G. B. Caldwell v. D. K. & S. A. 3. Injunction en 248-No misjoinder of parties Caldwell et al.

in suit on injunction bond. "In the Circuit Court of Jackson County, In action on injunction bonds by both parAlabama, in Equity.

ties to contract to log certain premises against "To Hon, B. F. Shook, Register:

one who sued to restrain cutting and removing

of timber, there was no misjoinder of parties "We hereby certify that the funds paid in by plaintiff. J. C. Jacobs on redemption of lot No. 5, of the Caldwell lands, in August, 1914, and which are

4. Action 50(1)-No misjoinder of causes of still deposited in court to be returned to the action because suit brought on several in. owner, is the money of the said J. C. Jacobs. junction bonds. It appearing that by the final decree of January, There was no misjoinder of causes of action 1917, you are ordered to return these funds to because suit was brought on several bonds for the complainant. Now, this is to authorize and suing out and reinstating injunction,

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

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5. Injunction om 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 One enjoined from cutting and hauling logs August 4, 1920, defendant filed in the cirunder a contract was entitled to recover in cuit court his, bill seeking to restrain plainaction on bood reasonable value of hire of his tiff from cutting and removing or disposing outfit and reasonable attorney's fees, etc., such of the timber in question, entered into a bond, damages not being remote.

and procured a temporary restraining order; 6. Injunction Om 251-Evidence admissible in that on August 13, 1920, defendant executed action on bond.

another bond and procured a continuance of In action on injunction bond given when the restraining order; that on August 19, plaintiff was restrained from cutting timber un- 1920, defendant entered into another bond der contract, plaintiff was properly permitted and procured a further continuance of the to testify that his “teams” “were trained to restraining order. haul logs," tbat he had competent and expe

It is a verred that on final hearing defendrienced men and cutters, and to state "the reasonable rental value of the logging outfit,” and ant's bill was dismissed and the restraining also facts as to reasonable cost of feeding, his order dissolved. efforts to minimize his damages, and compensa

D

As special damages plaintiff claims an tion received by other work.

amount incurred as attorney's fees in the

litigation, and a stated sum per day during 7. 'Appeal and error cm 1050(1) -Admission of the time his teams were idle. evidence held not reversible error.

Count B is the same as count A, with the In action on bond given to obtain injunction added averment to the effect that defendant against cutting and hauling logs on premises took an appeal from the decree of the cirunder contract, there was no reversible error in allowing plaintiff to testify that before he cuit court dismissing his bill, pending which cut any of that timber there was "something like appeal he procured an order from a justice a million feet," to show he would have been of the Supreme Court reinstating the incutting and hauling during the period for which junction, executing an additional bond theredamages were claimed, and to testify that he for; that the decree of the lower court was, had bis teams and outfit ready.

affirmed, and the injunction dissolved; that 8. Evidence Ow523–Testimony of qualified wit. defendant failed to pay plaintiff for the dam

ness as to reasonable attorney's fee admissi. ages caused by the injunction. ble.

The witness Stringer, after counsel had Where counsel hypothesized various steps hypothesized the various steps in the litigain litigation between parties, nature thereof, tion between the parties, the nature thereof, and average work that plaintiff could have done and the average work that could be done by if not forced to remain idle by defendant's in- Hawkins and the time he was forced to rejunction suit, witness, a practicing attorney main idle, was asked what would be a reashown to be qualified, was properly permitted to sonable attorney's fee for Hawkins' solicitor. state what would be a reasonable attorney's fee.

These charges were refused to defendants: 9. Injunction om 253_Requested charges held

"(12) The court charges the jury that, with. properly refused in action on bond.

out the plaintiff has reasonably satisfied them In action on injunction bond by one re- from the evidence that the plaintiff has suffered strained from cutting and hauling timber under some damage on account of the suing out of contract, there was no error in refusing defend said injunction wrongfully, either on account of ants' requested charges seeking to extend in- | the loss in the carrying out of his contract with quiry to lost profits, court having stated that Bridges or for expenses in keeping his teams only elements submitted were reasonable attor- in order to carry out said contract, then the ney's fees and market value of hire of plaintiff's plaintiff cannot recover any damages other than idle teams and outfit.

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.

junction suit."

(18) The court charges the jury if they beAction on injunction bonds by J. U. Bridg- lieve the evidence plaintiff can only recover es and Cleve Hawkins, for the use of Cleve for such amount as damages as was the value Hawkins, against Z. D. McCord, W. H. Mc- of said contract during the time the same was Cord, and Jeff McCord. Judgment for plain- suspended under said injunction, and, if they tiffs, and defendants appeal. Affirmed.

believe from the evidence that said contract had

no value or there would have been no profits if Count A alleges that in April, 1920, plain the same had been carried through, the plaintiff Hawkins entered into a contract with tiff cannot recover under his complaint as to Bridges to cut into logs and haul to a saw this element of damage. mill timber located on lands described, at "(19) The court charges the jury that, if they and for a stipulated price; that there was

believe from the evidence that the plaintiff in about 1,000,000 feet of timber on the lands; suspended during said injunction suit would

his alleged contract with Bridges which was that plaintiff immediately provided himself have lost money in carrying out the same, he with wagons, oxen, horses, etc., and entered cannot recover any damages for the said inter

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

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

al Surety Co. v. Citizens' L., H. & P. Co., 201 Knox, Acker, Dixon & Sims, of Talladega, Ala. 456, 78 South, 834; Williams v. Ragan, for appellants.

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.

against cosurety); City Nat. Bank v. Jeffries,

73 Ala. 183; and Durr v. Jackson, 59 Ala. THOMAS, J. The suit is bàsed upon a 203 (action on attachment bond). Appellants' complaint originally numbered 1, and that counsel insist that there was error in overcount was eliminated by adding counts A ruling demurrer to the complaint on the and B. The trial was upon the complaint as ground (1) that it fails to show such a conamended and the plea of the general issue.

tract between Hawkins and Bridges as would Preliminary rulings assigned as error are bind Hawkins to perform the contract, and the sustaining of demurrers to pleas in (2) fails to show that such contract was inabatement Nos. 1, 2, 3, and 4. These pleas terfered with by this injunction being sued sought to set up the fact that when the suit out. was first brought on the injunction bond the

[3, 4] There was no misjoinder of parties. case was on rehearing in this court; that the real party to the record is Hawkins, who there was pending another suit for damages had the beneficial interest under the contract for breach of the contract; and that the resi-and was restrained in the execution thereof dence of defendants were in the county of by the preliminary writ, and the suit is for Coosa rather than that where the suit was his use. Smith v. Yearwood, 197 Ala. 680, brought.

73 South. 384; Moody v. Jacobs (Ala. Sup.) [1,2] The act of September 29, 1915 (Gen. 100 South. 467; Alabama Power Co. v. HamActs, p. 880), sought to amend section 2967 ilton, 201 Ala. 62, 77 South. 356; National of the Code of 1907, and provided, among Surety Co. v. Citizens' L., H. & P. Co., 201 other things, that suit may be maintained Ala. 456, 460, 78 South. 834. Nor was there upon an injunction bond in the county where a misjoinder of causes of action by reason the injunction was sued out, operated, etc. of the fact that the suit is rested on the sevThe venue of the suit and operation of the eral bonds for suing out and reinstating the injunction was Talladega county. It is in- injunction. National Surety Co. v. Citizens' sisted that the amendment of section 2967 of L., H. & P. Co., supra. The count was not the Code in respects indicated was unconsti- subject to the grounds of demurrer directed tutional. The cases of State ex rel. Troy v. thereto. Smith, Auditor, 187 Ala, 417, 65 South. 942,

[5] The lower court on the trial held to and Ex parte Cowert, 92 Ala. 91, 100, 9 the view that the measure of the plaintiff South. 225, are cited by appellants as indi- Hawkins' damages embraced only the items cating the rule of amendment of statutes by of reasonable attorneys' fees and market val. reference to their titles. It is true that when ue or reasonable hire of his teams and equip. the section of the Code is sought to be ment during the time they were idle and amended by reference to its title the subject unable to be given employment by him by added by way of amendment must be ger- reason of the injunction being sued out. mane to, suggested by, and supplemental to Appellees' counsel insist that since the trial the subject-matter of the original section. court required Hawkins to show that he Dodd v. Commissioners' Court, 203 Ala. 271, sought to minimize the damage by trying to 82 South. 521; Ex parte Johnson, 203 Ala. obtain employment for his outfit and teams 579, 84 South. 803; Smith v. Birmingham (see Webb v. McFarlin & Co., 177 Ala. 531, Realty Co., 208 Ala. 114, 94 South. 117. The 58 South. 453; Cato v. Williamson, 209 Ala. subject-matter of the original statute (Code, 477, 96 South. 321), the loss Hawkins may | 2967) was "venue of suits on bonds," and have sustained in the execution of the conis contained in chapter 56, art. 5, “Attach- | tract had he not been restrained in that exements."

The amendment was of matter ger- cution was not properly the subject of inmane to, suggested by, and supplemental to quiry. Such is the law of this case, in view the subject of the "venue of suits on bonds,” of such rulings of the trial court as to the and extended the same to suits on attachment measure of damages. The reasonable value or injunction bonds, and those of petitioning of the hire of the outfit in question was an creditors, etc. Gen. Acts 1915, p. 880. The

element of damages that resulted naturally act violated no provision of organic law in

and 80 amending this statute.

proximate consequence of the There was no error committed in sustaining demurrers to wrong done the plaintiff Hawkins in the su. pleas in abatement.

as

a

ing 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 pugrowing 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 l on evidence, that the witness Cleve Haw.

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kins was properly permitted to testify that, tervened in the oral instructions to the jury. his “teams” in question “were trained to [9] There was no error to refuse defendhaul logs"; that he had competent and expe- ants' requested charges Nos. 12, 18, and 19, rienced men and cutters to handle them and which sought to extend the inquiry of plain. to prepare the timber for hauling at the time tiff's damages to profits he might have made the injunction was sued out; and that "the or failed to realize under the contract. The reasonable rental valu of the logging outfit,” court had stated to the jury that the only including his own services, was "$25 dollars elements of damages submitted for their cona day-the other fellow to feed them." The sideration were reasonable attorneys' fees witness was further properly permitted to and the market value of the hire of plainstate the facts as to the reasonable cost per tiff's idle teams and outfit for the period inday to him to feed the teams, and to state dicated. the time he was permitted to work; that he There was no error in overruling the mo tried to minimize his damages by getting tion for a new trial. The evidence supported other hauling to do for the period pending the complaint, and authorized the verdict. the injunction or reinstatement thereof; to The judgment of the circuit court is afstate the amount of such work he did and firmed. the compensation received therefor; and to Affirmed. state the difference in the work contracted to be done, in the execution of which he was ANDERSON, C. J., and SOMERVILLE enjoined, and that he was forced to do in and BOULDIN, JJ., concur. 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 TROST V. BECK. (6 Div. 73.) any of that timber off of that 320 acres, in your judgment how much saw timber was (Supreme Court of Alabama. May 22, 1924.) there on it?" and to answer “Something like Husband and wife em 159—Wife's note in pay. a million feet.” This tended to show the

ment of husband's debt held void under stat. amount of time that would be required in the ute. execution of his contract for cutting and haul Wife's note to husband's creditor in paying, had he not been enjoined, and that he ment of husband's notes to creditor held void would, in reasonable probability have been en- under Code 1907, § 4497, prohibiting wife from gaged in cutting and hauling for the time for becoming husband's surety directly or indirectly. which damages were claimed and allowed by the verdict. It was also competent to allow Appeal from Circuit Court, Jefferson Counthe witness to testify that at all times, within ty; Richard V. Evans, Judge. the period indicated, he (Hawkins) bad kept Action on promissory note by Emmitte and held his teams and outfit ready "to log Trost against Mora S. Beck. Judgment for the mill any minute the injunction was dis- defendant, and plaintiff appeals. Affirmed. solved."

Morris Loveman, of Birmingham, for ap: [8] The hypothetical question to the wit

pellant. ness Stringer, a practicing attorney, and

Tillman, Bradley & Baldwin and John S. shown to be qualified, was sufficient and au- Coleman, all of Birmingham, for appellee. thorized the giving of opinion evidence of the value of services rendered. Miller v.

GARDNER, J. Suit by appellant against Whittington, 202 Ala. 406, 80 South. 499; appellee upon a promissory note. The de Pullman Co. v. Meyer, 195 Ala. 397, 70 South. feridant is the wife of A. W. Beck, and her 763; Burnwell Coal Co. v. Setzer, 191 Ala. | defense is rested upon the theory that the 398, 67 South. 604.

note sued upon was given as security for the The matters sought to be set up by defend- debt of the husband in violation of section ants as to the character of lumber cut by 4497 of the Code of 1907, which provides Hawkins, and how much McCord paid Bridg- that "the wife shall not, directly or indirectes, were beside the issues being submitted ly, become the surety for the husband." to the jury.

The cause was tried before the court withIt is not necessary to further discuss the out a jury. Plaintiff rested his case upon evidence, or rulings on the introduction of the introduction of the note, and did not We find no error.

offer other proof or himself testify during The portions of the oral charge to which the progress of the cause.

The defendant exceptions are reserved are not available to and her husband testified orally before the appellants, when the other portions of that court, and upon conclusion of the evidence charge defining and limiting the measure of the court entered judgment for defendant, plaintiff's damages are considered. No er- from which plaintiff has prosecuted this apror for which defendants could complain in- peal.

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

same.

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