The Montgomery advertiser., 1901-08-25
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BUTLER V. THE STATE.

Prosecution for LarC.sny-Appeal rom
 the County Court Of Morgan.
 1. Prosecution for larceny: sufficie:' cy of afidavit-Where. in a prosecn ton commenced before a Justice of the Peace. the affidavit recites that the offense of larceny was. in the opinion of the complainant. commit ted. and that" the defendant was guilty thereof; such affidavit charges no offense and Is substantially defect i've. and will not support a judgment : of conviction by Justice of the Peace. nor a statement filed by the Solicitor in the County Court on appeal properly conviction by the County Court.
 Reversed and rendered
 Opinion by Mcclellan. c. J.
 HOOPER V. WHITAKER.
 Action on promissory note-Appeal
 from the Circuit Court of Marshall
 l.. Promissory note :when inadmis- sible in evidence the cause not con taining a revenue stamp-The fact thai a promissory note sued on is not prop erly stamped as required by the aci of Congress ''to provide ways and means to meet war expenditures. and other purposes" Is not sufficient tc authorize the rejection of such a note as evidence unless 1t be shown that the omission to stamp 1t was with the in- tent to evade payment of revenue.
 2. Sale of chattel: when mfsrepre- sentation by vendor Is fraud-a mis- representation of a material fact by the vendor of personal property made at the time of the sale. or pending the preliminary negotiations. on which the purchaser has a right to rely. and does in :. fact rely. as inducement to the contract. is a fraud, and is available ss a defense to an action upon prom issory note given for the purchase money of the property so sold.
 a.. Same: same-while in the sale of personal property a misrepresentation of a material fact by the vendor on which the purchaser relies as an in- ducement to the contract constitutes fraud available as a defense to an &C., ton for the purchse money. still In such transaction the purchaser cannot refuse to consult his own knowledge or the condition of the subject matter Of the sale and purchase: and. If In the sale of a half interest in a mercantile business the purchaser by reason of his familiarity with the condition Of the business he is purchasing. know the statements made by the vendor as in- ducements to the contract were raise. or had reason to believe they were un-
  sso as to mislead him from consulting His own knowledge of its conditions. such purchaser cannot claim to be de- ceived. and the interpretations made as to the conditions of the busi- ness do not constitute such a fraud as will be available to him as defense in an action to recover the purchase money.
 nzReversed and remanded.
 Opinion by Tyson. J.
 rsAnRRETT ct al. V. CENTRAL BUILD ING AND LOAN ASSOCIATION. Bill in Equity Against Building and
 Loan Associations to have Mort
 gage Declared Usl rious and to En-
 join Foreclosure Thereof.-Appeal
 from the Chancery Court of Talla- a dega.
 1. Demurre? to bill In equity; how considered on appeal.-When de- nurrer to. a bill in equity, assigning several grounds, Is sustained generally, a decree on appeal will be referred to such ground as will support 1t, and If any Of the grounds of demurrer are well taken. the decree will be affirmed.
 5. Usury; equity of bill to have mortgage given to Building and Loan Associa tion declared us1rious and to enjoin foreclosure bill filed by a borrower from Building and Loan As sociation, seeking to have the foreclos- ure of a mortgage giveh by the com plainant to the defendant enjoined, upon the ground that there was usury in the transaction, which fails to set out the note which the mortgage was given to secure, and the certificate of stock subscribed for by the complain ant or the charter or the bylaws of the n A h stance of the same, Is defective and open to demurrer.
 B. Bill in equity to enjoin foreclos- ure of mortgage: repugnancy between averments and exhibit to bill. Where fn a bill filed by a mortgager seeking to enjoin the foreclosure of a mort gage, upon the ground of usury, it Is ayerred that there was no provision in the mortgage as to the time when the mortgage debt would mature but the mortgage which is attached as an ex- hibit to the bill contains a stipulation that the debt shall be paid lon or be- fore the nine years from date" there Is a repugnSncy in the averments of the bill and in the exhibits, which rem ders, the bill subject, to demurrer.
 4. Same; when demurrable for averr- ing conclusion of pleader a bill filed by borrower from a Building and Loan Association, seeking to have mortgage contract declared usurious and the foreclosure of the mortgage en- joined, and said contract by its terms does not purport to bind the mortgagor to pay more than the sum borrowed with legal interest, and the bylaws or charter provisions of the association are set out in the bill and there are no extraneous facts averred in the Dill as existing when the contract was made rendering 1t usurious, and there Is only a general statement on the part or the complainant that it was the in- tention and understanding of the par ties to charge an usurious rate of in- terest, such bill is defective and subject to demurrer; the statements as to the intention to charge usury being a mere conclusion or opinion of the pleader.
 D. Usury; by what laws to be deter mined. When contract is not entered into with the intent and burmese of eVading the usury laws, parties may contract for the payment of interest according to the law of either the nIaca of making the contract, or the nIace CT Its performance. without offendins the usury laws of this State.
 Affirmed.
 Opinion by Dowden, J. ~EN
 McGEHEE ct al, RECEIVERS VIC
 CASHIN. ''' Action by Passenger Against Rayroaa Ye Company to Recover Damages for
 Belng Wrontully Ejected from
 draln'-Appeal fro m the Circuit