The Montgomery advertiser., 1906-11-14
mead Notes Of toe Decisions
 Of Alabama Supreme Court

LEvYsTEIN V. GERsoN, sELIGMAN Bill to Declare Mortgage Frauduient
 -(Decided July 6, l0e. Al 20.
 Rep. 7T4.)
 Amendments; partnership; sult against frm:' hill: parties defenoant.- The bill was exhibited against part nershIp composed of three namedepeF- sons. residents; service was had on one of the named partners; con- plainant ofKered to amend by convert ing the suit into one against the part ners individually. and to strike the names of those not served Heid' the amendment should have beAn alloWeu' even conceiing that Sec 70, Cooe. teso' has no application to suits In eQulty.
 Appeal from Montgomery City Court. Heard before Hon. A, D. sayre,
 Reversed and emanded. Opinion by Tyson, ].
 son. JJ,. concur, ss
 BoYETT V. STANDARD. CHEMICAL &
 OIL CO Action on Notes and Common Counts.
 -(Decjded April 10, Isoe.' 4laso.
 Rep. 756-)
 i. Exceptions, bill of; reduction or testimony; court rules; complfance,--- A bill of exceptions will not pc stricken for failure to comply with Circuit Court rule number 3S. supai- vision 5 (Code, 1S96, p. I201) where the testfmonv set ont In extenso relates to a material point in the case, ana was given by several witnesses, and d~could not be condensed into A general state- ment.
 q. Appeal; review: harmless error. The complaint contained counts on notes an1 counts on the common counts for goods sold and delivered. The court gave the general charge In favor of the plaintiff as to the counts on the notes, and the finding Of the jury showed that its verd ct was on these counts. Held, ali ruling as to the common counts. or ths obJectlohs to their being joi'ted In the same com plalnt with counts on theI potess 1T err TOT. was harmless to the defendant appellant here.
 8. Pleading; inconsistent defenses.
 Plaintiffs sold defendants @ certain fertilizers under a void contract; af- forwards the account was closed py several notes. The complaint joined counts on the notes and on the com non counts. The defendant set up payment Of the demand under the conl- mon counts by the execution of the notes, Held, defe dant was not estop- ned to deny the validity of the notes bv this plea interposed to the com mon counts. =
 4. Bills and notes; attorneys fees; nieadings; joinder.-The agreement In each note to pay attorneys fees being additional to tho other obligation of fine note, plaintiff could embodS in one count all his claim for attorney 8 fees provided for in the notes.
 sRehearing denied June 80. 1906.
 Appeal from CovingtOn Circuit Court. /" Reversed and remanded. Opinion by
 Weakiey. c. J.. and Tyson and An- derson. JJ.. concur
 PREsTwoOD V. McGoWIN. ct al. Damages for Breach of Warranty of
 Title-( Decided July 6. isO6-41 so
 Rep 77s.)
 1. Appeal; failure to except In low CT court; exceptions 10 rulings after judgment-Where an exception Is not taken to the ruling of the trial court not is the matter presented by assign ment of error in this court 1t will not be considered on appeal although in- sisted on in brief of counsel
 g. Same; parties agrieved; costs; abatement of administrations 1881 and 1882 are for the benefit of the parties who are discharged. or of the estate of those against whom actions abate by death. and the courts failure to tax costs against piaintin on ac- count of the abatement of the action by death of one of the defendants. where no costs were taxed against his estate cannot be raised by one of the defend ants who was liable for the entire breach of contract and It's attendant costs.
 3. Covenants: breach of warranty Sections 1541 and 1545 are intended to govern in suits for the recovery of real estate, and 1t is not necessary for plaintiff, in an action for damages for breach of warranty title, to show that