The Birmingham age-herald., 1903-03-10
Opinions Rendered
 By Supreme Court
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 eel Deed and Mortgage-Appeal from
 the City Court of Montgomery, in
 Equity
 1. Transaction Between Parties De- eupyng Fiduciary Relation Towards Each Other; when Such Relation Shown to Exist; Burden of Proof,-The general practice which a court of equity applies to transactions between persons occupy ing fduciary relations towards each oth- CT is not confined to cases such as guard ian and ward, parent and child, etc., in which there is any formal or technical fiduciary relations, but extends to cases in which confidence is reposed by one party in another, and the trust or conf dence is accepted under circumstances which show that it was founded on int mate, personal or business relations ex- isting between the parties, which gave the one advantage or superiority over the other; and such burden is on the party in whom confidence Is reposed, to show that no fraud, undue influence or other improper motive entered into the transaction.
 2. Same; Same Case at Bar.-An illt- crate negro woman about ID years old who was unable to read and write, upon being threatened by one of her race that he would take from her small piece Of property upon which she lived and which belonged to her husband prior to his death, consulted white man who was her neighbor and was intelligent, and in whom she had great confidence The per son so consulted advised her to have such lands allotted to her as home stead and further advised that after this was done she could give him a mort gage on said land. which though a bogus or false mortgage would pro- tect her against the claim of the person who had threatened suit. Acting upon his advice and counsel she had said land allotted to her as a homestead, said per- son SO consulted being active therein. Knowing the confidence and trust re posed in him the old woman. he in- duced her to execute to him mortgage on said lands. which should purport to secure a pretended indebtedness evidenced by promissory note. He had, however. never paid her any money. Subsequent ly, by playing upon the fears of the old woman, the person whom she had so consulted induced her to execute deed to him conveying said lands upon recited considera tion of the indebtedness stated in the mortgage, though neither that sum nor any other had been paid by him to her, and the decd was wholly without consideration. Held: That upon such facts there was a breach of tho fduciary relations existing between the parties, and the old woman, by bill in eolIitv. could have said mortgage and deed cancelled.
 Affirmed. Opinion by Haralson, J. Mobile Light and Railroad Company vs.
 Characterization against Street Railway
 Company for Killing a Horse-Appeal
 from the Circuit Court of Mobile.
 1. Non-sut; Setting Aside Order not Granting New Trial.-A non-suit taken by a plaintiff because of adverse rulings of the court, does not constitute trial or decision of the issue of fact involved in the pending suit; and therefore, the setting aside hy the court of an order of non-suit is not the granting Of new trial under the statute. Code, sec. 4S4).
 g. Non-suit; Order Setting 1t Aside Will not Support Appeal.-The order or trial court setting aside non-suit taken by plaintiff by reason of adverse rul- ings is not such an order as will sup port an appeal to the Supreme court.
 Appeal dismissed. Opinion by Tyson, J. Bashinsky & Co. vs. Seals. Action Against warehouseman to recover damages for loss of cotton. Appeal from the Circuit court of Pike.
 1. Action Against Warehouseman for Loss of Cotton; Sufficiency of Complaint. In an action against warehouseman to | recover damages for the loss of six bales | of cotton, it was averred In the com | plaint that during the season beginning l September 1, 1899, plaintiff was engage<