tration of the trust. The district court held this plea insufficient, and overruled the same, and that ruling is assigned as error.

It is the established rule in this state that the assignee in a general assignment, like that in the present case, acquires only such estate, and such rights and powers in reference to it, as the assignor had and the terms of the deed confer. If the interest of the assignor in a given property be that of a mere equity, with the legal title and right of possession outstanding in another, the deed only confers that equity. The assignee acquires no right to the possession as against the legal holder, and, if in possession, it would be his legal duty to surrender it to the owner on demand, or he could be coerced to do so by appropriate legal proceedings. As it would be wrongful in the assignor, at the time of assignment, to withhold from others the possession of property to which they were entitled, so also would it be wrongful In the assignee to do so, who occupies precisely the same relation to the property. In the case before us, Habbeler was the legal owner of the land in question, and entitled to the possession. As vendor, he was also invested with the right, in equity, to condemn the land to the payment of the purchase money, to the complete foreclosure of all equities of the vendee. Moses had no other or higher estate or interest than the mere right to pay the balance of the purchase money, and obtain the title and right of possession. That right, and no other, he conferred upon his assignees. The assignees filed their bill in the chancery court of Montgomery county to obtain the direction and protection of that court in the administration of the trust, and specially to enjoin the invasion of their possession and rights of property by certain attaching creditors, and that court passed a decree assuming the jurisdiction invoked; and it is now contended that the res and entire ownership of any and all property which the assignees possessed themselves of, or in which Moses had any interest or estate whatever, passed, by virtue of that decree, into the possession and under the dominion and control of that court, freed from the authority of all other persons, without regard to the extent and nature of their claims, to assert their rights in any other forum. The proposition is that the assignees, though mere volunteers under Moses, and standing, in relation to property, precisely where he stood, and who have no other or greater trusts or rights than the terms of the assignment itself confer, may of their own volition, in the absence of all other claimants, apply to a court of chancery, and obtain action of that court enlarging their possessory interests beyond any such vested in them by the deed of their creation, and completely foreclosing the assertion of the demands of all other claimants, without regard to the extent or nature of those demands. In other words, although they acv.14so.no.13-40

quired nothing, and the right to administer nothing, from the deed, (from which all they did acquire was derived,) save that which Moses had and gave, yet they are entitled to obtain from the court of chancery, by virtue of a decree for which they voluntarily apply, an enlarged right of possession and administration, beyond the deed, and infringing the rights and remedies of others not parties to the proceeding. We are of opinion that a voluntary assignment cannot lawfully be the means to such ends; and we are unwilling to construe the decree of the chancery court as intending more than an assumption of jurisdiction and control over such property, rights, and interests as the assignees were invested with, and which, by the terms of the deed, they were authorized to administer as a trust. It could not have been intended to give them the power to possess and administer property, or rights of property, which did not belong to Moses, but to others, and to which, therefore, they acquired no shadow of right by the deed of assignment. If the decree in question goes to this extent it was in excess of the court's authority and jurisdiction, violative of the property rights of others, and to it we cannot accord our sanction. We think the legal title of Habbeler to the land, and his right to possession, and to condemn it to the payment of the purchase money, as they existed at the time of the assignment, remained unaffected by that instrument, or by any action the assignees might have obtained at the hands of the court of chancery, based upon their title, in a proceeding to which Habbelerwas not a party, and, had no opportunity to be heard. The case is different from that of a receiver, who is an indifferent person, without title, appointed by the court to take possession of particular property pending the determination of its ownership or disposition by the court. Such a person is the mere officer or agent of the court, and the property in his custody is essentially in the possession and under the dominion of the court, and no other tribunal will exercise its jurisdiction to disturb that possession. We are of opinion the ruling of the district court. was right, and its decree is affirmed.

SMITH et al. v. MUTUAL LOAN & TRUST CO. et al.

(Supreme Court of Alabama. Jan. 17, 1894.) INJUNCTION BOND-SUIT FOR BREACH-PARTIES PLAINTIFF.

1. An action on an injunction bond should be brought in the name of all the payees of the bonds, "for the use of" those beneficially interested.

2. On the breach of an injunction bond, of which the condition is to pay all damages "any person" may sustain by the injunction if it is dissolved, any one of those against whom the injunction was granted, who has been damaged thereby, may sue.

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by A. W. Smith, Fred Sloss, and Maclin Sloss, as executors of J. W. Sloss, deceased, against the Mutual Loan & Trust Company and its sureties on an injunction bond. From a judgment for the defendants, plaintiffs appeal. Affirmed.

The defendants demurred to the complaint on the grounds: (1) That is appears from the allegations of said complaint that the bond sued on in this section was made payable to others than the plaintiffs, to wit, A. W. Smith, Fred and Maclin Sloss, individually, and such others are not joined as parties plaintiff. (2) Because it appears from said complaint that the injunction has never been dissolved, so as to authorize this action by the plaintiffs. (3) There is not shown any breach of the bond sued on. These demurrers were sustained, and, the plaintiffs declining to amend or plead further, judgment was rendered for the defendants.

W. R. Houghton, for appellants. R. H. Pearson, for appellees.

COLEMAN, J. This was an action by appellants, as plaintiffs, upon an injunction bond. The suit is by plaintiffs in their representative capacity, as executors of James W. Sloss, deceased. The bond is made payable to plaintiffs as executors, and to them individually. The fiat of the court enjoined them both in their individual and representative capacity. The condition of the bond is "to pay or cause to be paid all damages which any person may sustain by the suing out of said injunction, if the same is dissolved by the city court of Birmingham," etc.

One count of the complaint avers that the injunction was wholly dissolved, and in another count it appears that the injunction was made perpetual against the plaintiffs, in their individual capacity, and dissolved only as to their interest as executors. The instrument, the foundation of the suit, is not a promissory note, bond, or other contract for the payment of money, within the class of cases in which it is declared, in section 2594 of the Code, that actions on such instruments must be prosecuted in the name of the party really interested, nor is the suit within the provision of section 2575 of the Code, which declares that suits "for any breach of an official bond or undertaking of any officer of this state, executor, administrator or guard'ian or of any bond or undertaking given in an official capacity to the state, or any officer thereof, the person aggrieved may sue in his own name, assigning the appropriate breach." The rule at common law, and which has not been changed by statute, as to actions upon such bonds, required that the suit be prosecuted in the name of the owner or holder of the legal title, and for the use of such persons as were the beneficial owners. Gayle v. Martin, 3 Ala. 593; Boyd v. Martin, 10

Ala. 700; Sprowl v. Lawrence, 33 Ala. 674; Masterson v. Phinizy, 56 Ala. 336; Morrow v. Wood, Id. 1. We are therefore of opinion that the suit should have been brought in the name of all the payees of the bond, "for the use of," etc.

It is next contended that, as the injunction was dissolved only as to a part of the obligees, there has been no breach of the condition of the bond, and, further, that as all the obligees of the bond, against whom the injunction was made perpetual, have no cause of action, none can sue; in other words, that, unless all are entitled to recover, none of the parties can maintain the action. We think there is a wide difference between the legal effect of a breach of the condition of the bond under consideration, and the breach of a bond conditioned to pay all such damages as the obligee or obligees might sustain. The condition here is to pay "all damages any person may sustain by the suing out of said injunction, if the same is dissolved," etc. The right of action is given to "any person" who may be damaged by the suing out of the injunction, if the same is dissolved. Section 3524 of the Code reads as follows: "In other cases the party must give bond, with surety in such sum, as the officer granting the application directs, payable to and approved by the register, and conditioned to pay all damages and cost which any person may sustain, by the suing out of such injunction, if the same is dissolved." This section was amended by the act of 1888-89, p. 116, but the only change made by the amendment is that the bond is made "payable to the party against whom the application is granted." The condition of the bond is precisely the same. If the section of the Code had remained in force, there is no doubt that, upon the dissolution of the injunction, suit could be brought in the name of the register for the use of "any person" sustaining damage. The fact that the amendment requires the bond to be made "payable to the party against whom the application is granted" does not change the legal effect of a breach of the condition. Upon the dissolution of the injunction, "any person" who has sustained damage is entitled to recover. If the action was on an official bond, under section 2575, supra, it is expressly provided that "the person aggrieved may sue in his own name;" and so, if on certain instruments, under section 2594, the person beneficially interested must sue. These are statutory provisions, regulating the pleadings in such cases; but, when the suit is brought on an instrument like the one at bar, there being no statutory provision, the common law governs, and the suit must be brought in the name of the payees, for the use of “any person" who may have been damaged. The provision in favor of any person authorizes the bringing of the action for the use of such persons, one or more, against whom the injunction was granted, upon its dissolution as to such person.

We do not see that the change made in the section of the Code by the act of 1888-89, supra, amending it, in any manner simplified the law of pleadings, or promoted the ends of justice. Our duty is to construe the law

as we find it.

There was a demurrer to the complaint as a whole, and to each count of the complaint, for that the suit was not brought in the name of all the obligees of the bond. The court did not err in sustaining this ground of demurrer. The other grounds of demurrer were not well taken. The plaintiffs declined to amend their complaint in any respect, and the judgment sustaining the demurrer must be affirmed. Affirmed.

JEFFERSON v. STATE. (Supreme Court of Alabama. Jan. 16, 1894.) LARCENY FROM STOREHOUSE-Evidence.

To constitute the crime of larceny from a storehouse, under Code, § 3789, it is not sufficient that the building in which the crime was committed was built for a storehouse, but it must at the time of the offense have been used for that purpose.

Appeal from city court of Montgomery; T. M. Arrington, Judge.

Henry Jefferson was convicted of larceny, and appeals. Reversed and remanded.

The testimony for the state tended to show that the defendant was guilty of stealing money from a storehouse. The testimony for the state tended further to show, however, that the building from which the money was taken was originally constructed as a storehouse, but, at the time of the larceny, was occupied as an office of a real-estate and insurance firm, and by a building and loan association, and as an office of a lumber company, and that there were, at the time, no goods, wares, merchandise, or grains kept in said building for use, sale, or deposit. Upon the introduction of all the evidence, the court, at the request of the solicitor, instructed the jury as follows: "If the jury believe the evidence, they must convict the defendant." The defendant excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following charges requested by him: (1) "If the jury believe the evidence, they must find the defendant not guilty." (2) "The court charges the jury that the indictment is for larceny from a storehouse, and if the proof shows that the larceny was committed from an office, and not from a storehouse where goods, wares, and merchandise are kept for sale or deposit, the defendant cannot be found guil ty."

John G. Finley, for appellant. Martin, Atty. Gen., for the State.

Wm. L.

STONE, C. J. Defendant was indicted under section 3789 of the Code of 1886. The indictment has two counts, each charging larceny of money from a storehouse. "Store

house" is "a house in which things are stored; a building for the storing of grain, food stuffs, or goods of any kind; a magazine; a repository; a warehouse; a store." Cent. Dict.; Webster, Dict.; Worcest. Dict. This is, in substance, the definition given to the word "storehouse" in State v. Sandy, 3 Ired. 570, and in Ray v. Com., 12 Bush, 397. Johnson v. State, 19 Ala. 527, is not opposed to this view. The house or building in which it is charged the defendant committed the larceny for which he was indicted, whatever may have been the use for which it was constructed, was in no sense a storehouse when the alleged crime was committed. The statute aggravated the offense, and increased the punishment, because of the place of its commission; and, to justify a conviction of the higher grade of the crime, it was indispensable that, at the very time it was committed, the building should have been in use as a storehouse. The general charge asked by defendant that, if the jury believed the evidence, they must acquit him, ought to have been given. There can be no conviction under the indictment as framed, on the testimony shown in this record. Reversed and remanded.

JOHNSON v. STATE. (Supreme Court of Alabama. Jan. 17, 1894.) LARCENY INDICTMENT OWNERSHIP OF STOLEN PROPERTY-EVIDENCE-MISCONDUCT OF JUDGESENDING INSTRUCTION TO JURY ROOM.

1. An indictment for the larceny of corn which was unsevered from the land properly laid the ownership in a married woman, who held the title to the land, and not in the husband, who raised the crop. 13 South. 377, followed.

2. On the trial for the larceny of an outstanding crop of corn, the property of E., it is not error to permit the husband of E. to testify that the title to the land is in his wife.

3. Where no instruction involves an inquiry into the sufficiency of the evidence, or as to the proof of venue, the failure of the bill of exceptions to show that the venue was proved will not work a reversal of a judgment of conviction, though the bill of exceptions purports to contain all the evidence.

4. Instructions must be given in open court in the presence of the accused, and of his counsel if practicable; and an instruction sent to the jury room in answer to a written question by an individual juror is erroneous.

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Eugene Johnson was convicted of larceny, and appeals. Reversed.

The indictment alleged: "The grand jury of said county charge, that before the finding of this indictment, Eugene Johnson feloniously took and carried away two bushels of corn, part of an outstanding crop of corn, the property of Cornelia Merriwether," etc. The evidence introduced on the part of the state, tended to show, that within 12 months before the finding of the indictment, the defendant feloniously took and carried away five ears of corn from an outstanding crop

of corn, growing on the land of Cornelia Merriwether. W. T. Merriwether, the husband of Cornelia Merriwether, testified, that he lived with his wife on the land on which the corn grew, and used the crop in support of his family; that the title to the land was in his wife; that he furnished the labor and teams to make the crop, and cultivated the land on which it was raised, and the crop of corn was his. The defendant objected to this testimony of W. T. Merriwether, and duly excepted to his objection being overruled. Mrs. Merriwether, was introduced by the state, and testified, that the title to the land on which the corn alleged to have been stolen grew, was in her. This was all the evidence introduced touching the ownership of the crop. The defendant asked the court to charge the jury: (1) "If the jury believe the testimony, they must find the defendant not guilty;" (2) "if the jury find from the testimony, that the corn was the property of Mr. Merriwether, they must find the defendant not guilty;" (3) "the mere fact that Mrs. Merriwether owned the land, and lived on it with the husband who cultivated the land, claimed the crop as his own and used it in the support of the family, without more, would not make the crop the property of the wife;" (4) "if the jury believe from the testimony, that the time that Merriwether rode to the defendant's house, or near his house and talked with him about the corn, was the last of August, or the first of September, and not the last of July, then they must discard altogether that part of the testimony of Merriwether relating to corn taken the morning that be was at the house of the defendant, or the day prior to that time, provided the jury also find that the corn, Wade Dillard testified he saw taken, was taken, if at all, on the last of July." The court charged the jury orally, that under the testimony the corn alleged to have been stolen was the property of Mrs. Merriwether. The defendant excepted to the giving of this charge, and to the refusal to give the foregoing charges as requested by him. After the jury had been charged and retired to their room to consider the case, one of the jurors sent to the court a note in writing, as follows: "I, C. L. Doll, want to know whether it makes any difference, if the corn was taken in July or the latter part of August." The court wrote upon the note as follows: "If the corn was taken as alleged in the indictment, it makes no difference whether it was done in July or August," and returned it, thus indorsed, to the said Doll in the jury room, by the deputy sheriff. To this action of the court the defendant excepted.

Sayre & Pearson, for appellant. Wm. L. Martin, Atty. Gen., for the State.

HARALSON, J. 1. When this case was here, on another appeal, the ownership of the corn alleged to have been stolen was laid in

W. T. Merriwether, and on substantially the same evidence as that presented in this record, the court held that the ownership was improperly laid in him, but should have been laid in Mrs. Merriwether. Johnson v. State, 13 South. 377. We adhere to our former ruling, and hold that the ownership was properly laid in Mrs. Merriwether. The statement of Mr. Merriwether, that the corn was his, was the mere expression of an opinion, accompanied by a statement of the facts on which he based it, which show that the ownership of the land and the unsevered crop thereon, as a part of the land, was properly laid in Mrs. Merriwether.

2. There was no error, therefore, in refusing the three first charges requested by defendant, nor in giving the charge, "that under the testimony, the corn alleged to have been stolen, was the property of Mrs. Merriwether." No corn is alleged to have been stolen, other than that which was a part of an outstanding, unsevered crop, on the land of Mrs. Merriwether. Corn, while on the stalk, and not severed from the realty, partakes of the realty, and by the common law was not the subject of larceny. It is only made so by statute. But, at the mo ment it is severed from the realty, it becomes and continues to be, personalty, and is not the subject of grand larceny, under the statute which prohibits the stealing of a part of an outstanding crop, nor under an indictment for stealing a part of such a crop, can one be found guilty of petit larceny; yet, if the stolen corn or cotton has been previously severed from the realty by a separate act, and is afterwards stolen by the defendant, he may be prosecuted for larceny, either grand or petit; and in prosecutions of this character, a count may properly be added for larceny in the common form, so as to meet any case the proofs may develop. Smitherman v. State, 63 Ala. 26; Pinckard v. State, 62 Ala. 167; Gregg v. State, 55 Ala. 117. There is evidence in this record tending to show, that the corn which was stolen, if any, consisted of "ears that had been blown down and torn from the stalks." If this were true, and the other facts in the case showed a felonious taking, the defendant could not be convicted under this indictment.

3. We will not consider the fourth refused charge, based on other phases of the evidence, since it is confused and incomplete, and was for that reason, if for no other, properly refused.

4. There was no error in allowing the witness, Merriwether, to testify that the title to the land was in his wife. This was but another form of stating the collateral and collective fact, of the ownership of the land, which was properly admissible. Iron Co. v. Roberts, 87 Ala. 437, 6 South. 349; Daffron v. Crump, 69 Ala. 77; Elliott v. Stocks, 67 Ala. 291.

5. The bill of exceptions purports to set

out all the evidence. There was no proof that the offense was committed in Montgomery county. No instruction was given or refused, which involved an inquiry into the sufficiency of the evidence to authorize a conviction, or as to the proof of venue. The failure of the bill of exceptions to show that the venue was proved, will not, under such a presentation of the record, work a reversal of the judgment of conviction. Hubbard v. State, 72 Ala. 164; Clarke v. State, 78 Ala. 477; Bowdon v. State, 91 Ala. 61, 8 South. 694.

6. It may be stated generally, as a sound legal principle and as correct practice, that instructions by the court to the jury, should be given in open court in the presence of the parties to the suit. A judge should never have any private communication, either ver bal or written, with the jury, after they have retired. He may, in the exercise of proper discretion, recall them into open court, for the purpose of explaining instructions already given, or to give other and further instructions, or to allow other evidence, which has been overlooked in the progress of the trial, to be given in, or to answer any proper questions about the case which the jury for their satisfaction or enlightenment may desire to propound to the court; but, in all such instances, what is done, should always be done in the presence of the prisoner, and also of his counsel, if practicable. Cooper y. State, 79 Ala. 54; McNeil v. State, 47 Ala. 498; Hawkins v. State, 33 Ala. 433; Proff. Jury, § 348; 2 Thomp. New Trials, § 2361; 11 Am. & Eng. Enc. Law, 257. In having the written communication with the juryman, Doll, without the consent of the defendant, the court committed an error for which the cause must be reversed. Reversed and remanded.

JOHNSTON v. STATE. (Supreme Court of Alabama. Jan. 17, 1894.) PENAL STATUTE-INDEFINITENESS-STEALING DOGS.

Act Feb. 12, 1887, § 3, providing that one who shall take away with intent to steal, or hold for a reward, a dog registered under that act, "shall be punished on conviction as in other cases of larceny," is void for uncertainty, since it does not make dogs property, or give them any value, nor does it state whether the punishment of grand or petit larceny shall be imposed.

the office of the judge of probate by their owners, on the payment of certain fees and a tax of one dollar. Section 3, under which this indictment is drawn, declares "that any person who shall take and carry away with the intent to steal, or with the intent to hold for a reward, any dog registered under the provisions of this act, shall be punished on conviction as in other cases of larceny;" and section 4 appropriates the taxes collected under the act to the use of the public schools "in the county where collected." These are, in substance, all the provisions of the act. Acts 1886-87, p. 805. Whether this enactment is violative of section 2, art. 4, of the constitution, because the subject of its provisions, the protection of the possession or ownership of dogs, is not expressed in its title, "For the Protection of Dogs," we need not and do not decide in this case; though, guided by the doctrine that "the requirements" of the constitution in this regard "are not to be exactingly enforced, or in such manner as to cripple legislation," (Ballentyne v. Wickersham, 75 Ala. 536,) we should probably hold, if the question had now to be passed on, that the act is not offensive to the organic provision referred to. Leaving that question wholly out of view, this conviction cannot stand. The third section of the act, the penal section, for a violation of which this defendant was indicted and convicted, is obviously void for uncertainty. Dogs are not property. There is no presumption,. therefore, that any dog is valuable. Not being property, the prima facie presumption in any case is that the animal has no value. It is, of course, competent for the legislature to make dogs property, and a status thus given them would, we may concede, without deciding, carry with it a presumption of value. This act does not do this even in respect of dogs registered under its provisions; and the mere fact of registry does not imply either the attributes of property or the incident of value. It is also competent for the legislature to make the taking and carrying away of dogs from their masters a crime of any nomenclature or degree. It might be declared a misdemeanor or a felony, and be denominated "grand larceny" or "petit larceny" or called by any name that might suggest itself to the lawmakers; and all this whether dogs be declared or considered property or not. Neither has the legislature done this by the enactment before us. All that this statute

Sing Johnston was convicted of stealing a dog, under Act Feb. 12, 1887, (Acts 1886-87, p. 805,) and appeals. Reversed and rendered. John Gindrat Winter, for appellant. Wm. L. Martin, Atty. Gen., for the State.

MCCLELLAN, J. The title of the act brought under review in this case is "For the Protection of Dogs." In the body of it, provision is made for the registration of dogs in

of a registered dog, though he be of little or great or no value, shall be punished on conviction as in other cases of larceny. The punishment is in no wise dependent upon value, but alone upon registration, whether the particular animal has any value or not. The act does not provide that the offender shall be guilty of grand larceny or petit larceny, or that on conviction he shall be punished as in cases of other grand larcenies or other petit larcenies; nor does it afford any