The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1906-09-28

N G. a ST. J.. RX.. ct al. vs. VALLEY,
ct al
Tresspass and Trover-- decided April
2sth, 1906. Al So. Rep. I34.)
/. Trespass--Acts constituting-Tak-
ing of personal property.-Where a
shipper loaded wood on railroad cars,
and the railroad company was not a
party to the taking 1t did not become a
trespasser,, though subsequently noti-
fled by the owners of the wood not to
ship II.
2. Appeal-review-har error
--instructfons.-In an action of tres
pass, where the error In sustaining a
replication was not insisted on and
the replication was proved, plaintiff
was entitled to the affirmative charge,
and hence the court committed no err
ror in refusing charges requested by
the defendant.
+ 3. Trover and conversion owner
| ship of property-burden of proof
In an action for the conversion of wood
where plaintiffs proved ownership and
that the wood was taken without their
consent the burden was ON defendant
to prove that the particular wood TAX
en- had been paid for by him.
Z. Trial--abstract instruction.-In
an action of trover. a charge that IL
the parties had been putting wood
along a railroad, and the defendants
had been taking 1t up In parcels, then
the defendant and the right to act on
this plan, and taking up the wood
paid for by the defendants would not
make them liable in trover was abb
stract. and was properly refused.
5. Trover and Observation-Disclosures
4ions.--In an action of trover, where
there was evidence tending to show
that money advanced by a defendant
70 plaintiffs was in payment for the
wood taken, the court should have
- kA
4 for the wood. and plaintiffs accepted
the pay. and defendant accepted tina
measurements of the wood by plaintiffs
{ or paid for 1t ON their statement as
TO the amount, the plaintiffs could not
recover.
Appeal from Marshall Circuit Court
Heard before Hon. w. w. HARRISON
Reversed and Remanded. Opinion by
Anderson, J.
! HARRISON, Dowden and benson. ~.
concur.
NOBLE VS.. ADMISSION NAT. BANK.
ACKNOWLEDGEMENTS April 2Sth, 1906.
Al. So. Rep. 1869
/. Frauds, statute of-promise to
answer for debt of another-pleading
--suff1ciency.-A plea, in an action on
a note which alleges that the note is
void under the statute of frauds. be-
cause the same was given DOR the debt
! of another, a person named, is sufficient
as against a demurrer based on the
ground that the plea does not state for
whose debt the note was given.
2. Principal and surety--collaterals
given by principal-right of surety as
against creditor.-A surety is not en-
titled to set off the amount collected
on collaterals given by the principal
against the creditors demand.
! 8. Bills and notes-actions-defen
es-failure OF consideratfon-plea-
sufiiciency.--A plea in an action on
purchased certain property, relying on
the representation of the payee that
the same belonged TO him, that the
ipayee did not own the property which
constituted a large part of the value
of the note, and that the consideration
for which the note was given failed,
is demurrable.
4. Same-fraudulent representations
lea-sufficiency.-A plea, in an ac-
ton on a note. which alleges that the
maker purchased property from the
payee in reliance on his representation
that he was the owner thereof. that
the representation was untrue, and by
reason of the untrue statements as to
the ownership of the property for
which the note was given the same Is
void, is demurrable.
8. Same--set off--plea -suficiency
"A plea. in an action on note. which
alleges that the payee is indebted to
the maker in a specific sum as dam
ages for breach of a contract where
in the payee guaranteed that it would
collect and realize on and for certain |
interest in the stock of a company a |
right to property and other stock |
which the payee transferred TO the |
maker at the time OF the execution of |
the note. that the payee for a sufficient |
consideration guaranteed to the maker |
the receipt by him of such sum, where |
fore the maker claims that the 7ayee |
is Indebted to him in a specific sum.
with interest thereon from the
day of -, 1s9-." which the max
ler offers TO set off, etc. is demurrable |
because it contains blanks. and falls |
10 sufficiently set out the contract, and |
fails to show that there was any con- |
Isideration for the guaranty.
6. Same--A plea In an action on a
note, which alleges that the payee
let 10 the maker a safety deposit box
IN which he deposited valuable papers.
that the box was broken open and the |
,papers lost, by reason Of which he suf-