The Montgomery advertiser., 1906-04-14
Head-Notes ef the Decisions
 Of Alabama Supreme Court
wELLDEN V. WITT.

wELLDEN V. WITT.
 peti,,ue Dec. Fl, 1905.)--(4o
 So. Rep. 126).
 FAnneal: Harmless Error: Ruling on pleadings-where the defense set up by pleas, which were stricken or 70 which demurrers were suseainSu' was available to defendant under the ~arsrai issues if error, to strike or to sustain demurrer thereto, 1t was narm- less. r. for Purchase Money.-while it might De rood grounds for correcting the con tract in a court of equity, if there was an agreement between the parties to the sale to pay interest, and Tn oSa"ihs E up the note for the purchase prce oI the mule the seller omitted to p3ovide sar the nayment of interest, yet the seller cannot maintain detinue Tor the mute until the note matured and there was default in it's payment. because or a failure to insert a provision TOT in- terest. ax,.,aJ 3. Contracts: Modification; Mutual Assent.-Contracts may be modineo. oi even rescinded by mutual ia without any new or aoditionai 'o eration. o.,.s,on {. Sales: Conditional Sales; Recisslon' Iurv ouestion.-whether or not con tract of conditional sale had been ie sciuded so as to entitle the seaer o recover the property. was duestloh io. the iury. where there was connict III the testimony on that subject
 5. Same: Recission of Contract Son aitions Precedent; Return of ConsioerA- tinn wThe seller claiming a recession of a contract of the conditional sale or mnIe. by mutual consent, sought to recover the mule by detinue, ana or. fered to return thef note TOT same a' time of trial. Held sufficient, espe ciallv as 1t appeared the maker woui' not have received 1t before. Appeal from Limestone Circult Soui Heard before Hon. W. D. Speake.
 Rehearing denied Jan. 30, lso6.
 payersed Opinion by Denson, J.
 Tvson. Dowdell and Anderson, JJ' concur.
 STATE FIX REL HANNA EFT AL vs
 TUNSTALL.
 Quo warranto to Try Right to Holo
 OAice of Solicitor.-(Decided June
 30, 1905.) GAO So. Rep. l3o.)
 1. statutes; local acts; notice Of ap- olication: suficiency.-Notice that ap- plication would be made to the Lesis- Iature to amend an act so as to pro vide that the solicitor, at the explra, ton of his term. should be appolnteu by the Governor or elected by the peo- nia was suficient to support an amend ment changing the name of the omce from "solicitor of the City Court of Anniston" to "Solicitor of Calhoun County" and providing that the solici- tor should be appointed by the GOV ernor to hold office until the next gen sral election for solicitors ana then hecome elective by the people. Mc- C,IeIIan c. J.. and Denson, J., dissent.) 9 Quo warranto: exercise of pub lie ofnce: powers not exercised.-The exercise of the power to appoint dep uty solicitor not being necessary tc the right to hold the office of solicitor of Calhoun county. and 1t not belne shown that such power Is attempted to be exercised, it Is unnecessary tC consider that feature of the statue up on quo warranto proctedings challeng, ing the right to hold such omce; aho if not being a matter of substanct need not appear in the notice
 g. Statutes; local acts; form ol enactment notice of application.-l' not being a matter of substance, it is unnecessary for notice required by Sec tion 1O6 Constitution of 1901, to state whether the new enactment shall be in the form of an act amending a sectIon of the original act or not.
 Appeal from Calhoun Circuit Court Heard before Hon. John Pelham.
 Rehearing denied January 30, 1906 Affirmed. Opinion by Simpson, U. Tyson, Dowdell and Anderson, con- eur.
 Mcclellan, C. J., and Denson. dis sent.
 DRUM & EZEKIEL ct al, vs. BRYAN
 ct al.
 (Decided January 30. 1906.) C4O So
 Rep, 131.)
 1. Quieting title; removal of cloud possession of plaintiff.-One not in possession of lands cannot maintain a lt1i .A -o~,n,rn a cl...ld or nniat tit1e