The Montgomery advertiser., 1906-11-04

ROSE MAYOR vs. LAMPLEY, JUDGE. Mandamus Decided June D. i'o''
 4l So Rep. 5210
 l. Intoxicating liquors; dispense ries; conflicting statutes.-The act authorizing the creation of dispensa ries (Acts 1s9S-99. p. 1lO), does hot authorize the establishment or such dispensaries at places where. at the ,i,1e off it's. passage, the sale of liquor was restrained or prohibited.
 Statutes; extension by reference &o tftle.-Local Acts 1S9S-99. ?. l63:' declaring that the Moody Bill. in US provisions. should be operative i'll the town of Georgiana Is unconstitutional. as violative of Section i5, Constitu- tion of 1901. in attempting to extend the provisions of d law by reference to its title.
 a Intoxicating liquors; dispensary act; application--The dispensary act is not brought into operation by the re- neal. after it's passage. of law which prohibits the sale of liquor in cer- tain locality.
 4. Statutes: express repeal; appli- cation of repeating act:-Whilc the act of February 23. 1899 Local Acts 1s3S-99 p. 1632), repealed by express terms the prohibition act of February 26. 1884,, so far as the same relates to the town of Georgiana, such act did not repeal the act of February 20. 1899 Acts 18SS-s9. p. 512). prohibit ing the sale of liquor in Butler coun- ty.
 g. Mandamus compelling official action; interest of relator.--The may or of a town cannot compel by man damus the judge of probate to per form duties imposed upon him by statute, he showing no right to have such duty performed, although tho mil
 Appeal from Butler Circuit Court
 Heard before Hon. J. c. Richard son.
 Affirmed. Opinion by Tyson. J.,
 Simpson, Anderson and Denson' 1o. concur
 SMITH vs. MccUTCHEN. JUDGE. Mandamus. Decided May 31, l9o".
 41 So. Rep. 619o
 i. Mandamus; county warrants; ls- kuance; judge of probate; ministerial duty-The issuance of a warrant up on a claim against the county, which has. been properly allowed, Is mn : fsteriAl duty under Section 141b, Code 1S96, the performance of which by the judge of probate may be compelled by mandamus.
 2. Countless; claim: audit.-The mere entering into a contract by and between an architect and the court Of county commissioners. and the entry of the contract upon the minutes or the court, was not such an audit or allowance of the claim of the architect for services. under Section 1i17, Code 1896, as will authorize the judge of probate to draw a warrant therefor under Section 1416, Code 1S96. or give grounds for mandamus to compel him to do so
 5. Mandamus; county warrant Sections 1416 and I417l Code 1896, re- ouire that a claim against county must have been audited and allowed for a definite sum, which must De shown by the minutes of the court before the judge of probate Is author ized to draw his warrant thereror. or before he can be compelled so to do by
 Appeal from Jackson Circuit Court.
 Heard before Hon. w. W. liar alson.
 Affirmed. Opinion by Denson. J.,
 weakley. c. J., Haralson and DOW dell JJ., concur.
 GILLILAND & SON V. MARTIN. Troyer and Case.-(Dccided June 20
 1906. 42 So. Rep. 7o
 1. Trespass; pleading; form.-Where counts in a complaint in trespass dt bonis asportatis were substantially IT the form prescribed by Code. lS9e. a47 form 23. they were not demurra b!e.
 g. Appeal; prejudice; rulings or or nleadines Where defendants had the benefit under the general issue of al matters If defense contained in plea to which a demurrer was sustained the ruling. if error. was harmless.
 B Witnesses: examination; respon sjve answers.--Where. in trespass TOT the taking of certain goods. one of the defendants was asked to state the CIT cumstances under which he got the stuff" an answer that the witness told D. to collect debt secured by the property taken anG to take possession of the property under legal proceedings was properly stricken not respon- sve.
 4. Trial: affirmative charge.-Where in trespass for the taking Of certair goods, plaintiff joined issue on a plea filed by defendants to the entire cause of action .and the plea was proved without any conflict in the evidence, Il was error to refuse defendant an afnr' native charge based thereon.
 d. Chattel mortgages; foreclosure power to take possession: revocation The power in a chattel mortgage given to mortgagee to take posses sion and sell the property Is power coupled with an interest. creating license in favor of the mortgagee whicl is irrevocable without his consent
 S. Same: possession: force.--Th' power given to d chattel mortgagee to take possession of the mortgaged prop erty, though an irrevocable power coupled with an interest. does not au thorize the mortgagcc to take sucl possession, when to do so any force whatever involving the slightest as sault or breach of the peace is required
 :. Trial; instructions; ignoring evi dence-Wbere, ill trespass for the talk ing of certain goods, defendants justi fled under d chattcl mortgage, bu there was evidence that defendants took property not embraced in thu mortgage, instructions nretermttini consideration of such evidence were properly refused. ""