It

his stock of merchandise; that, at the time of the purchase from the plaintiffs, he did not make any statement as to his financial condition, or tell them about asking an extension from one of his creditors. The plaintiffs introduced other evidence showing that the said Bradley, some time after the 1st of November, 1891, made a sale of most of his dry goods to the defendants, B. Scheuer & Bro., at 50 cents on the dollar of the original cost of said goods; that the defendants went into immediate possession of said goods; and that the sale was made at night. was also shown that the goods purchased of the plaintiffs, which were sold by Bradley to the defendants, were reasonably worth 85 cents on the dollar of the original cost. The testimony for the defendants tended to show that the said Bradley offered to sell them the stock of goods at 65 cents on the dollar, after telling them that he wished to go out of the dry-goods business; that in reply to this proposition the defendants offered him 50 cents on the dollar, which was accepted by said Bradley; that the sale was made on Saturday night, and the inventory taken, and the stock of dry goods purchased was taken possession of on the following Monday morning. This being all the evidence, the court, at the request of the plaintiffs, gave the following written charges: (1) "If the jury believe from the evidence in this case that, at the time Bradley purchased the goods from the plaintiffs, he (Bradley) was insolvent, and that he had no reasonable expectation of being able to pay for the goods sold him, and that he intentionally concealed his financial condition from the plaintiffs, then the plaintiffs. had the right to rescind said sale; and if the jury further believe from the evidence that, at the time B. Scheuer & Bro. bought the goods from Bradley, Bradley intended to sell the goods for cash, and use the proceeds from said sale for his own benefit, and to put the goods out of the reach of his creditors, and that B. Scheuer & Bro. knew of that intention, or were in possession of such information as to put them on inquiry, which, if followed, would have led to the discovery of such intention, then such sale to Scheuer & Bro. would be fraudulent in law, although Scheuer & Bro. may have paid full value for the goods. And, if the jury believe all of these facts from the evidence, your verdict will be for the plaintiffs." (2) "The jury can look to the facts, if they be facts from the evidence, that the sale was completed at night, that the doors were closed, that a retail merchant was selling in a lump the bulk of his stock, that the sale was made at 50 cents on the dollar, in connection with all the other evidence in this case, to see whether the sale to Scheuer & Bro. was bona fide, in good faith. And, if the jury believe from the evidence that said sale was not bona fide, then your verdict will be for the plaintiffs, if you further find from the evidence that

Bradley, at the time he purchased the goods from the plaintiffs, was insolvent or in failing circumstances; that he had no reasonable expectation of being able to pay for said goods, or did not intend to pay for them; and that he (Bradley) intentionally concealed from plaintiffs his financial condition." The defendants separately excepted to the giving of each of these charges, and also excepted to the court's refusal to give the following charge requested by them: "Even though the jury may believe from the evidence that Bradley was insolvent at the time of the purchase from the plaintiffs, and had no reasonable expectation of paying for the goods purchased, then they must find for the defendants, unless the evidence reasonably satisfies them that Bradley made some fraudulent representations to the plaintiffs at the time, or intentionally concealed from the plaintiffs, with a fraudulent purpose, his said insolvency, and a want of a reasonable expectation to pay for said goods."

S. H. Dent, Jr., for appellants. G. L. Comer, for appellees.

HEAD, J. The charges given for plaintiffs were clearly erroneous. Plaintiffs claimed title to the goods by reason of an asserted rescission of a sale thereof which they had previously made to Bradley, on account of fraud alleged to have been practiced by Bradley upon plaintiffs, inducing them to make the sale. Bradley had sold and delivered the goods to defendants, who claimed to have purchased without notice of any fraud that may have been committed by him in his purchase from his vendors, the plaintiffs. It is settled law that to entitle a seller of goods to rescind the sale on the ground of fraud practiced upon him by the buyer, inducing the sale, and recover in detinue or trover against a subpurchaser who shows that he paid value for the goods, he (the original seller) must prove, not only the fraud perpetrated upon him by his vendee, by which he was induced to make the sale, but, further, that the defendant (the subpurchaser) had notice of that fraud at the time he paid value for the goods, or of such facts as would put a reasonable man on inquiry which, if followed up, would lead to such notice. The charges in question ignore entirely this essential of notice on the part of the subpurchaser, and substitute therefor, as sufficient to entitle plaintiff to recover, so far as the question of notice is concerned, the hypothesis that the original vendee, Bradley, sold the goods to defendants with intent to defraud his creditors, and that defendants participated in that intent. That is not an issue in this cause. The rights of Bradley's creditors are not involved in the action. Trover presupposes title in the plaintiff, without which there can be no recovery. The rescission, if effectual, divested all title out of Bradley, and reinvested it in plaintiffs by

ors. They also filed a special plea setting up that there was a misjoinder of parties complainant, in that some of the complain. ants were corporations, some of them partnerships, and some of them individuals. The defendants moved the court to dissolve the injunction, which had been granted, on the ground, that the bill was without equity, and upon the denials of the answer. Upon the submission of the cause on this motion, the chancellor was of the opinion that the motion should not be granted, and decrced that said motion be overruled. The decree in this behalf is here assigned as error.

Borders & Carmichael and Graham & Steiner, for appellants. Roberts & Martin, for appellees.

HARALSON, J. The bill in this case contains all the necessary averments to give it equity. It is not distinguishable in principle from the case of Cartwright v. Bamber ger, 90 Ala. 405, 8 South. 264, where the merits of a bill of this character are fully discussed and passed on, and we deem it unnecessary to repeat here what was said there. See also Bamberger v. Voorhees, (Ala.) 13 South. 305. There is no merit in the special plea filed, that the names of the individuals composing the several complainant firms were not properly set out in the bill. In each instance, the names of the individuals composing the respective firms were given, and in a manner fully meeting the requirements of the rules of chancery pleading. Reid v. McLeod, 20 Ala. 577; Ortez v. Jewett, 23 Ala. 662; Couch v. Atkinson, 32 Ala. 633; Landford v. Patton, 44 Ala. 584; Sims v. Jacobson, 51 Ala. 186; Moore v. Watts, 81 Ala. 265, 2 South. 278; Foreman v. Weil, (Ala.) 12 South. 816. The answers very fully denied the allegations on which the equities of the bill rested; but, there were several ex parte affidavits read on the trial of the motion, without objection, in support of the allegations of the bill. Whether they were properly admissible or not, if they had been objected to, it is unnecessary to decide.

We are not satisfied that the chancellor erred in denying the motion to dissolve. We apprehend he chose the wiser course in not granting the motion. We have repeatedly held, that on a motion to dissolve an injunction, when the answer contains a full and complete denial of the material allegations of the bill, the court is invested with wide discretion in passing on the question, in the exercise of which, it will consider and balance the probable resulting damages to the respective parties, and if it appear that greater injury may thereby result to the complainant than to the defendant, from continuing the writ until the final hearing, it will be retained. Such seems to have been the case here. Harrison v. Yerby, 87 Ala. 189, 6 South. 3; Kinney v. Ensminger, 87 Ala. 341, 6 South. 72; Whitley v. Lumber

1. An execution should be received in evidence to support a sale under it after levy, though it varies in some respects from the judg ment, where it appears from the whole writ, and other facts, that it was enforced as an execution on such judgment.

2. An execution issued after 10 years from the date of the last preceding execution is voidable only, and a sale thereunder will be sustained.

3. Parol evidence is admissible to explain any immaterial variance between an execution and the judgment on which it was issued.

4. The execution docket of the clerk is admissible to identify a judgment, and to connect with it an execution issued thereon.

5. A sheriff's sale, when made under two executions, either of which is valid, is sufficient to transfer to the purchaser the execution debtor's title to property sold.

Appeal from circuit court, Monroe county; James T. Jones, Judge.

Statutory real action, in the nature of ejectment, by John De Loach against T. J. Robbins. From a judgment for defendant, plaintiff appeals. Reversed.

The plaintiff proved, that he, as administrator of John Black, at the fall term, 1868, of the circuit court of Monroe county, recovered a judgment against the defendant, T. J. Robbins, for the sum of $684.95, besides costs of suits; that at the spring term of said circuit court, 1873, one John B. Colly recovered a judgment against defendant, for the sum of $239.53; that executions were duly issued on each of these judgments, returnable to the next term of the court, after their rendition, respectively. The date of the first-named judgment was mentioned in the original execution as the 15th of October, 1868, and that of the Colly judgment, in the first execution issued on it, as of the 24th of April, 1873. These executions were numbered, respectively, 2,774 and 4,573. Alias executions, Nos. 5,713, 5,853 and 423, issued on said first-named judgment, on the 25th October, 1876, the 15th May, 1877, and the 9th June, 1885, respectively. In Nos. 5,713 and 5,853, the date of the judgment is given as the 13th October, 1868. In No. 423, issued on the 9th June, 1885, the judgment is correctly described in all respects, except its amount is stated to be $684, and its date, as the 20th April, 1871. Before offering the lastnamed execution, with its indorsements, showing a levy on the lands in question, and their sale by the sheriff and its return to the clerk, the plaintiff, in order to identify the judgment in evidence as the one men

tioned in said execution, and to explain its date as given in said alias execution, testified that he was the clerk of the court at the time said judgment was rendered, and for about 20 years afterwards; that he, neither as administrator nor personally, had ever recovered or had or controlled any other judgment, at that, or any other term of said court, against the defendant, T. J. Robbins, other than the one offered and admitted in evidence; that all the executions in evidence, and the one then offered,-No. 423,-he directed the clerk of the court, J. W. Leslie, to issue at their respective dates; that he was present at the sale made by the sheriff, under said last-named execution, of the lands described in the levy indorsed thereon, and became the purchaser thereof, at the price stated in the return on said execution. Said J. W. Leslie testified, that he had been the clerk of said court for many years before, after, and at the time of the issuance of said execution, No. 423, and that he issued it at the instance of said De Loach, on his said judgment, as administrator of John Black, deceased, against said T. J. Robbins, and on no other; that he was acquainted with, and had frequently examined the records and minutes of said court, and there was no other judgment therein or thereon, in favor of said John De Loach, administrator, against said defendant, Robbins, (except this one.) The defendant objected to the introduction of said execution with its indorsements, in evidence, on the ground of a variance in the date of the judgment described in the execution, and the judgment. In order to further identify said execution as having been issued on said judgment, and to explain the variance as a clerical mistake, the plaintiff offered to introduce in evidence the execution docket of the clerk of said court to show the entries thereon, of all the executions and returns issued on said judgment, showing that from the first execution to the last offered, they were on the same judgment, as appeared by the references from one to the other, and by their marginal numbers. The defendant objected, as before. The court sustained the objection and would not allow said docket to be introduced for the purposes specified, and also sustained defendant's objection to the introduction of said execution, to each of which rulings the plaintiff separately excepted. The plaintiff then offered in evidence, in connection with the foregoing evidence, to sustain the admissibility of said execution, the deed of the sheriff in due form, properly executed and with appropriate recitals, to show the conveyance to plaintiff, as purchaser under said judgment, execution and levy, of all the right, title, interest and estate of the said T. J. Robbins, defendant, in and to the lands therein described, and which are included in the complaint. But, upon the same objection as was raised by defendant to the introduction of said execution, and against the

exception of plaintiff, the court excluded it. Afterwards, the plaintiff introduced another alias execution, No. 47, purporting to have been issued on said judgment, on the 14th May, 1891, in which said judgment is correctly described as in the original execution, with the exception of a variance of one day in the date of the judgment, the original reciting, that it was rendered on the 15th, and the alias, that it was rendered on the 14th October. In connection with this offer the plaintiff offered the same proof that had been made for the introduction of the former execution, No. 423, but the court would not admit it, and the plaintiff excepted. To the introduction of this last-named execution, with its indorsements of levy and sale, the defendant objected, "on the single ground," that no other execution had issued on said judgment within 10 years before the date of the issuance of said execution, and it was therefore void, and the sale under it invalid. This objection was sustained by the court, against the exception of the plaintiff, and the evidence excluded. But the record shows, the deed of the sheriff, founded on a sale under said execution, was admitted in evidence without objection. Recurring to the Colly judgment and executions: The record shows, that several executions after the first, were issued on said judgment, at different dates, from 1873 to 1891, and the last one, No. 46, issued on the 14th of May, 1891,the same date of the issuance of the alias in the other case,-describes the judgment in evidence accurately, and which, coming to the hands of the sheriff, was levied upon the lands in question, being the same lands, on which the execution No. 47 in the case of Mr. De Loach as administrator of John Black was levied, both executions having been received by the sheriff on the same day, levied on the same property, which was sold on the same date, under both executionsNos. 46 and 47. At said sale the plaintiff became the purchaser, at the highest and best bid, and the sheriff executed in due form, reciting all the considerations and facts necessary to convey "all the right, title, interest and estate of the said T. J. Robbins in and to said lands" under execution sale, to the plaintiff as such purchaser. There were some inaccuracies of description in several of the aliases on the Colly judgment. In three of them, the judgment was described as having been recovered on the 26th, instead of the 24th April, 1873. In all the others, and in the last, the date of the judgment was properly given. In two of the intermediate aliases the judgment was de scribed as having been recovered by John De Loach, as administrator of the estate of J. B. Colly, deceased; but in the last alias under which the sale was made, the judgment is accurately described, as to date and amount, and as having been recovered by John Colly in his lifetime, of whose estate, said John De Loach is recited to be the administrator, to

whom, the money when collected, was to be paid. In the Colly case there is a judgment, execution, levy, sale and sheriff's deed to the plaintiff as purchaser, all admitted by the court as evidence for plaintiff. In the De Loach, administrator, case, there is a judgment, execution, levy, sale and sheriff's deed to the plaintiff as purchaser, but the execution was excluded and the deed admitted. The defendant being sworn as a witness, in his own behalf, testified that he resided on the land in controversy, and had resided thereon for 31 years, with the exception of two years when he rented it out, and that he made improvements on said land. At the request of the defendant, the court charged the jury "If they believed the evidence they must find a verdict for the defendant." To the giving of this charge the plaintiff duly excepted, and also excepted to the court's refusal to give the charge in his behalf.

J. W. Posey, for appellant. J. N. Miller, for appellee.

HARALSON, J. 1. While it is true, that an execution should follow and correspond with the judgment on which it issues, yet, justice and reason do suggest, that mere clerical errors or failures to recite the judgment with strictness ought not to avoid the execution, and, it is everywhere, so far as we have observed, so decided. And, when an execution is offered in evidence to support a sale made under it by a sheriff, after levy, and it varies from the judgment in some respects, the question then before the court is, "Did this execution issue on this judgment? If from the whole writ, taken in connection with other facts, the court feels assured that the execution offered in evidence was intended, issued and enforced, as an execution upon the judgment shown to the court, then we apprehend the writ ought to be received and respected. * Where sufficient appeared on the face of the execution to connect it with the judgment, courts have frequently disregarded variances in the names of parties, in the date or in the amount of the judgment." Freem. Judgm. § 43, p. 113, note 3, and authorities there cited; 7 Am. & Eng. Enc. Law, 123, 124, note 13; Samples v. Walker, 9 Ala. 726; McCollum v. Hubbert, 13 Ala. 282; State v. Tutwiler, 68 Ala. 110; Sandlin v. Anderson, 76 Ala. 403; Davis v. Kline, 76 Mo. 310. In the case last named, two executions and the sheriff's deed thereon, recited judgments in the year 1875, while the minutes of the court showed they were rendered in 1876. There being other evidence to show that the executions were in fact issued on these judgments, it was held that the variance was a clerical misprision and would not invalidate the execution.

2. Where an execution has prematurely issued on a valid judgment, as we have held, it is not on that account void, but only irregular and voidable, and not having been

set aside in a direct proceeding for that purpose, a sale under it cannot be collaterally impeached; and, where execution has issued after the lapse of 10 years from the date of the last preceding one, it is merely irregular and voidable, and a sale under it, as for such an irregularity, as we have repeatedly held, will be sustained. Perkins v. Coal Co., 77 Ala. 403; Leonard v. Brewer, 86 Ala. 390, 5 South. 306; Waldrop v. Friedman, 90 Ala. 157, 7 South. 510; Olmstead v. Brewer, 91 Ala. 124, 8 South. 345.

3. Parol evidence is always admissible to point out and connect the writing with the subject-matter, and identify the object proposed to be described. And so, such evidence is admissible to explain away any mere immaterial and not substantive variations between an execution and the judgment, on which it issued. Guilmartin v. Wood, 76 Ala. 204; Corbitt v. Reynolds, 68 Ala. 378; Doe v. Pickett, 51 Ala. 584. And, on still higher grounds, the execution docket of the clerk is admissible, in such connections, to identify and unite a judgment and executions which issued on it, for, this is record evidence, such as the law requires to be kept, for such purposes, among others. Code, § 768, subd. 7.

4. Let the foregoing principles be applied to this case. The two judgments on which the executions issued, were, so far as appears, in all respects regular and valid, one in favor of the plaintiff, John De Loach, as administrator of John Black, at the fall term of the circuit court of Monroe county, 1868, against defendant, T. J. Robbins, for $684.95, besides costs; and the other, in favor of John B. Colly, against the defendant, at the spring term of said court, 1873, for $239.53, and costs. Executions issued, as was shown, on each of these judgments, returnable to the next term of the court after their rendition, respectively. The plaintiff in the second judgment, John B. Colly, died after its rendition, and plaintiff, De Loach, became his administrator, and on proof of these facts by affidavit of plaintiff, the clerk of the court, thereafter, issued execution on said judgment in favor of the plaintiff, as administrator of said Colly, under which the land in question was sold by the sheriff, and plaintiff became the purchaser, the sale having been made under this and the other executions issued in the Black administration case, at the same time. In the other case,—that of De Loach, administrator of Black, against the defendant,-after the issuance of the original execution, aliases were issued on the 25th of October, 1876, 15th May, 1877, and 9th June, 1885. In some of these there were irregularities, some slight and others of a graver character. It is unnecessary to mention them. A sale of the property levied on was made by the sheriff under the last-named execution, but when it was offered, and the sheriff's deed with it, objection was made on account of a variance between the judgment