in the instant case was in fact a deputy of the superintendent, is not also entitled to the same protection upon the same ground of public policy. That this special agent was in the exercise of the duties for and on behalf of the state is to our minds quite clear. Deriving his authority from appointment by the officer specially authorized by the act of the Legislature, he is in a sense, in liquidating the affairs of the insolvent bank, an arm of the state, engaged in most important services. In such work it is highly essential that the services of the best man obtainable under the circumstances should be secured, and that,in such selection the appointing officer of the state should be unhampered by any consideration of garnishment proceedings. We are therefore of the opinion that the special agent, Patton, was a public officer within the meaning of the rule of law exempting his compensation from garnishment proceedings, because to subject the same would be contrary to the public policy of the state. We have carefully examined the case of Mitchell v. Nelson, 49 Ala. 88, cited by counsel for appellant, but we are not impressed that this authority militates against the conclusion here reached. Nor are we persuaded of the incorrectness of our conclusions by the case of Conrey v. Copland, 4 La. Ann. 307, which dealt with a certain act of the state of Louisiana. It results that the judgment of the court below, discharging the garnishee, was, in our opinion, correct, and will be here affirmed. Affirmed. Jackson & Deloney, of Tuscumbia, for ap pellant. Andrews & Peach, of Sheffield, for appellee. ANDERSON, C. J. [1, 2] This is an action at law in the circuit court, and we find no final judgment in the record which would support an appeal under section 2837 of the Code of 1907, or any other statute. The only judgment that we find is one sustaining the defendant's demurrer to the complaint, and if there is a local law authorizing an appeal from such a ruling before the rendition of a final judgment in the case, the same has not been brought to our attention, nor have we been able to find such a provision. This court therefore is without jurisdiction to consider the rulings assigned as error in the absence of such a judgment as will support an appeal. The appeal is therefore dismissed. Appeal dismissed. MCCLELLAN, SAYRE, and GARDNER, JJ., concur. (201 Ala. 506) KELLEY REALTY CO. v. BOTSFORD. (6 Div. 750.) (Supreme Court of Alabama. April 18, 1918.) 1. LANDLORD AND TENANT 152(3)-DUTY TO REPAIR-ACTIONS FOR DAMAGES. A covenant in a lease of a storehouse, whereby lessor agrees to repair and stop leaks, will support an action by the lessee against the lessor for damages on account of failure to stop leaks, notwithstanding a preceding covenant whereby the lessor is exempted from liability for damages ANDERSON, C. J., and McCLELLAN and on account of defects, or from rain, wind, or SAYRE, JJ., concur. other cause; it being necessary to construe the lease as a whole. 2. APPEAL AND ERROR 1039(1)-HARMLESS ERROR-PLEADING-TIME TO PREPARE. In a lessee's action for damages for lessor's breach of covenant to maintain premises in repair, the action of the court in refusing defendant time to prepare demurrers, and in overruling them when orally stated, and in denying time to prepare written pleas, compelling defendant to plead in short by consent, while irregular, did not injure defendant; he not having shown diligence in preparing pleadings, and having had every advantage he could have had if the pleadings had been written out in full. Appeal from Circuit Court, Jefferson Coun ty; E. C. Crowe, Judge. Action by A. S. Botsford, doing business as the Botsford Grocery Company, against the Kelley Realty Company, before a justice of the peace. From a judgment for plaintiff on appeal, defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911, Appeal from Circuit Court, Colbert Coun- p. 449, § 6. Affirmed. ty; C. P. Almon, Judge. Action by Alex Gibbs against the Southern Express Company. Defendant's demurrer to the complaint sustained, and plaintiff appeals. Transferred from the Court of Ap peals under section 6, Acts 1911, p. 449. Ap peal dismissed. David J. Davis, of Birmingham, for appellant. W. M. Woodall and Edward Jenkins, both of Birmingham, for appellee. MAYFIELD, J. The action is by the lessee of a storehouse, against his lessor, as for breach of a covenant to repair. The cove nant alleged to have been breached reads as follows: "Lessor agrees to repair and build cheap fence in rear of both rooms; also stop leaks, fix window and door glasses where broken, and put locks in good repair." was done. The trial proceeded to conclusion, and resulted in a judgment for plaintiff. While, of course, this proceeding and practice was irregular, it does affirmatively appear that no possible injury resulted. The record does not show due diligence on defendant's part in preparing its pleadings. The case had been once tried in the justice The breach alleged was the failure "to stop leaks." The injury was damage to goods on account of the failure to perform the cov-court, on the identical issues upon which it enant. The main, if not the sole, defense relied upon, was another covenant of the lease, which is claimed by the lessor to exempt him from the damages here sought to be recovered. This covenant reads as follows: "It is further understood and agreed that the lessor shall not be liable for any damage which may accrue on account of any defect in said building or premises, or from rain, wind, or other cause." [1] If this covenant stood alone, the contention would probably be valid; but it being followed by the covenant sued on, and construed in the light of the conduct of both parties to the lease, and this court being required to construe the contract as a whole, we are of the opinion that the trial court correctly construed the lease as holding the lessor liable for failure "to stop leaks," and for the damages wholly consequent upon such breach. The covenant sued upon is the last covenant in the lease, and forms a separate and distinct clause thereof. To hold that this clause would not support this action would be to wholly ignore it, and certainly it was not intended by the parties to be a wholly meaningless, useless appendix to the lease contract, to be cut off, should it ever cause trouble. The case was originally brought in a justice court, where the trial resulted in judgment for the plaintiff. Defendant appealed to the circuit court, where the case was tried by the judge without a jury, and judgment was rendered for plaintiff. From the judgment rendered in the circuit court, defendant appealed to the Court of Appeals, and under existing rules and practice of this court the appeal comes by transfer to this court. [2] We find no error which has resulted in injury to appellant. When the case was called for trial in the circuit court, plaintiff filed a complaint, which he had a right to do. Defendant insisted upon time within which to prepare demurrers to the complaint. The circuit judge declined to postpone or pass the case for this purpose, but said to counsel for defendant that he could state to the judge the ground of his demurrers, and the court would pass upon them as if in writing. This was done, and, the court overruling the demurrers, the defendant thereupon insisted upon time wherein to prepare written pleas, which request was denied; the court stating that defendant could set up any availing defense, and plead it in short by consent, which was tried in the circuit court, and on a complaint not materially different from the one last filed. There was no duty resting on the plaintiff to submit his complaint to the defendant before filing the same in the circuit court. The complaint was simple, being practically in code form; and it was not subject to demurrer. It also affirmatively appears that defendant had every advantage which it could have had if its pleadings had been written out in full. In fact and in law, it appears, it had no defense to the action. The only defense attempted to be asserted, meriting consideration, is its construction of the lease contract as to whether or not defendant was liable for failure to make repairs, claimed in the suit. We find no error which will warrant a reversal of this judgment. Affirmed. ANDERSON; C. J., and SOMERVILLE and GARDNER, JJ., concur. GIDLEY et al. v. GIDLEY. (Supreme Court of Alabama. (201 Ala. 507) (7 Div. 899.) April 4, 1918 On Rehearing, May 9, 1918.) 1. VENDOR AND PURCHASER 308(8) AcTION ON PURCHASE-MONEY NOTE-DEMURRER TO PLEA. In suit on a note, plea that the consideration for which the note was given had failed, in that it was given by defendant to plaintiff for the price of land, and plaintiff had no title and failed and refused to deliver possession to defendant, was not subject to demurrer invoking the doctrine that a purchaser cannot resist an action at law on a note given for purchase money so long as he remains in possession under the contract. 2. PLEADING 34(4)—DEMURRER TO PLEAS --CONSTRUCTION. 3. On demurrer, pleas must be construed against defendant, the pleader. VENDOR AND PURCHASER AcTION ON PURCHASE-MONEY NOTE PLEADING. 314(2) of land, the allegation in defendant's plea that In an action on a note given for the price plaintiff was insolvent, and could not be made to answer in damages for failure to deliver the land to defendant, was not the equivalent of an allegation that defendant was not in possession, supporting his plea of failure of consideration. On Rehearing. 4. APPEAL AND ERROR 1040(7)—PREJUDICIAL ERROR-DEMURRER TO PLEA. of land, error in sustaining, as against defendIn an action on a note given for the price ant's plea setting up that consideration had failed, in that plaintiff had no title and failed to deliver possession, demurrer invoking the doctrine that the purchaser cannot resist an action at law on a note given for the purchase money so long as he remains in possession under the contract, was not harmless to defendant on the ground that under another plea, alleging that the note sued on was without consideration, defendant, had he gone to trial on the facts, would have had the full benefit of all evidence under the plea demurrer to which was sustained. Appeal from Circuit Court, Etowah County; John H. Disque, Judge. Suit by Elizabeth Gidley against J. T. Gidley and others. From judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed, and cause remanded. Motley & Motley, of Gadsden, for appellants. Dortch & Allen and Inzer & Inzer, all of Gadsden, for appellee. SAYRE, J. [1] Plaintiff (appellee) sued defendant Gidley on a promissory note. In plea 7 defendant, in substance, set up that the consideration for which the note was given had failed, in that the same was given by defendant to plaintiff for the purchase of certain 40 acres of land and plaintiff had no title and failed and refused to deliver possession of the land to defendant. This plea obviously was not subject to the demurrer which invoked the doctrine--we state it in its most general form-that the purchaser cannot resist an action at law on a note given for the purchase money so long as he remains in possession under the contract. Gillham v. Walker, 135 Ala. 459, 33 South. 537. It is not suggested in argument that any other of the assigned grounds of demurrer were well taken. Prima facie, therefore, the trial court committed reversible error in sustaining the demurrer to this plea. And this appellee seems to appreciate, for the burden of the argument advanced by her counsel goes to the proposition that the action of the court on plea 7 was error without injury. To state this contention more specifically in one of its aspects, appellee contends that under plea 6 defendant, had he gone to trial on the facts, would have had the full benefit of every particle of the evidence admissible under plea 7. Plea 6, which was not questioned by demurrer, alleged "that the note sued on is without consideration." We think the contention should be sustained. Under plea 6, as framed, evidence would have been admissible to prove either an original total lack of consideration or a total failure of consideration. Under it defendant would have been permitted to prove the facts alleged in plea 7. There should be, therefore, no reversal for the ruling on demurrer. scinded contract of sale, and in no position ANDERSON, C. J., and MCCLELLAN and GARDNER, JJ., concur. On Rehearing. SAYRE, J. [4] The court upon rehearing considers that the doctrine of error without injury cannot be applied to the case shown by the pleadings, and hence orders that the judgment be reversed and the cause remanded for further proceedings-this for reasons which are disclosed in the cases of Kolsky v. Enslen, 103 Ala. 97, 15 South. 558, and Car melich v. Mims, 88 Ala. 335, 6 South. 913, where the difference between a plea setting up an original total lack of consideration and one of a failure of consideration in respect of the necessity for particularity of allegation is pointed out. The court also holds that the doctrine of error without injury cannot be applied to save a reversal on any other theory suggested by the brief for appellee. Without overlooking the difference in the nature of the two pleas, I have thought that there was a material difference between the plea considered in Kolsky v. Enslen and the one considered in Giles v. Williams, 3 Ala. 316, 37 Am. Dec. 692, cited as authority in the first-named case, and that the plea shown by the record, with its peculiar language, should, in the absence of demurrer taking the point that it did not appear whether the plea was a plea of want of consideration or a plea of failure of consideration, be held to serve the purpose of either plea, and that therefore appellant suffered no injury by the erroneous ruling as to plea 7. However, the question is not one of great importance, and I have acquiesced in the views entertained by other members of the sitting section of the court. Application granted, judgment of affirmance set aside, judgment reversed, and cause remanded. (201 Ala. 508) ALLOWING DAVIDSON et al. v. RICE. (8 Div. 79.) (Supreme Court of Alabama. April 11, 1918.) DEMURRER EQUITY 247 AMENDMENT. Acts 1915, p. 279, merging the chancery [2, 3] There was no error in sustaining the court into the circuit court, and Acts 1915, p. demurrers to pleas 8 and 9. On demurrer the 708, declaring the circuit court open for the pleas must be construed against the pleader, transaction of any and all business or judicial proceedings of every kind during the whole and, for aught appearing, defendant was year, do not change the rule that it is error to in possession of the land under an unre-sustain a demurrer to an original bill in vaca tion without according the complainant an op- It has been decided that the filing of anportunity to amend to meet an amendable de-swer in which demurrer is incorporated does fect. not waive the demurrer. Ray v. Womble, 56 Appeal from Circuit Court, Marshall Coun- Ala. 32, 40. ty; W. W. Haralson, Judge. Bill by J. Henry Davidson and others against W. B. Rice to determine title to land. Decree for respondent, and complainants appeal. Reversed and remanded. The decree is as follows: The cause was submitted and held for decree in said case upon the pleadings and proof as noted by the register, and now upon consideration thereof, the court is of the opinion that the demurrers filed by the respondent to the original bill are well taken, but it is true that in the note of submission the demurrers are not made. Upon consideration of all the evidence, however, the court finds that complainants are not entitled to recover as the bill is now framed, for the very reasons specified in said demurrers, to wit, all of the complainants are not in possession of all of the land, all of the complainants do not have title to all of the land, according to complainants' own testimony each complainant claims to have title to and be in possession of a separate and distinct part of the land; therefore they cannot recover under this bill. It is therefore ordered, adjudged, and decreed by the court that defendant's demurrers be, and the same are hereby, sustained, and the bill of complaint is dismissed out of this court, but without prejudice to each complainant to bring his appropriate bill to quiet the title to his individual land if he sees proper to do so. It is further ordered, adjudged, and decreed that complainants be taxed with the costs of this suit, for which let execution issue. Rayburn & Wright, of Guntersville, for appellants. D. Isbell, of Guntersville, for appellee. MCCLELLAN, J. The report of this appeal will contain the decree under review. It is to be observed that the decree proper sustained demurrer to the original bill, and In the view of the cause prevailing with this court, it is unnecessary to consider the question, pressed in brief for appellant, whether rule 75, when read in connection with rules 72 and 73, quoted ante, forbids the consideration by the courts of a demurrer not listed on the note of testimony filed upon the submission of the cause. In any event the general practice is to list demurrers; and an observance of this custom would avoid any question in the premises. The decree recites that the "cause was submitted and held for decree in vacation." The recital's reference to vacation must be attributed to a period intervening between calls of the docket, when the particular circuit court is not in session, as contemplated by section 2 of the act approved September 22, 1915 (Gen. Acts 1915, p. 708). By the act approved August 16, 1915 (Gen. Acts 1915, p. 279), the chancery court was merged into the circuit court (Const. 1901, § 148), and by the act approved September 22, 1915, noted above, the circuit court, with this augmented jurisdiction, was declared to be "open for the transaction of any and all business or judicial proceedings of every kind" during practically the whole year, thus, in substantial effect, imposing on the enlarged circuit court, certainly its equity side, the similar, in the main, provisions of the act (previously) approved March 17, 1915 (Gen. Acts 1915, p. 135), prescribing that the chancery court should be always open for the transaction of any business therein. Acts of 1915 it was held to be error to susBefore the enactment of the above-cited finally dismissed the bill without prejudice, tain a demurrer to an original bill in vacaomitting the preservation to the complain- tion without according the complainant an ants of the right to amend to meet the ob- opportunity to amend to meet an amendable jection justified by the court's judgment. defect or deficiency. Gilmer v. Wallace, 75 The demurrer to the original bill was filed Ala. 220, 222, 223. The reasons inducing this "along with this full answer," from which conclusion are fully stated in that case. Aftwe conclude that the demurrer was incorpo- er careful consideration of the rule so long rated in the answer, as Code, § 3128, contem-recognized, of the reasons, statutory and othplates. Rule 72 of Chancery Practice (Civil Code, p. 1550) provides: "All demurrers, whether contained in the answer or not, are to be disposed of on the calling of the cause, without waiting for the cause to be ready on the proof; but when the cause is ready for hearing on the pleadings and proofs, it must be heard, without waiting for a separate decision on a demurrer contained in the answer." erwise, for its acceptance, and of the conse quences to attend a departure from it, all in the light of the general terms employed in the Acts of 1915, pertinent to the inquiry, our conclusion is that the legislative purpose in either or both of the cited Acts of 1915 did not contemplate the abolition of the rule announced in Gilmer v. Wallace, supra. The recent decision in Hale v. Hale, 75 South. Rule 73 of chancery practice (Civil Code, 150, was controlled by these considerations, p. 1550) provides: "All exceptions to bills, answers, reports, or testimony, whether coming before the court in the first place for consideration, or by way of appeal or review, must be heard in connection with the equity of the bill, unless that question has been previously decided or admitted: also, if there is a demurrer undisposed of in the case, it must be considered by the court at not present in the cause at bar, viz.: The allowance of repeated opportunities to amend, and an agreement for submission for final decree. The decree appealed from is therefore reversed on the authority of Gilmer v. Wallace, supra; it being apparent that the origi to avert the criticism set down as the ground | advance of the commissioner's certificate thereon which the demurrer was sustained. Reversed and remanded. for is a demand for an official fee not legally due, and is within the spirit, if not the terms, of Code 1907, § 3693, providing that fees must be held penal and no fee must be demanded or C. J., and SAYRE and received except in cases expressly authorized by law. ANDERSON, GARDNER, JJ., concur. (201 Ala. 510) UNITED BROTHERS OF FRIENDSHIP AND SISTERS OF MYSTERIOUS TEN et al. v. C. S. HUFFMAN AUDITING CO. (6 Div. 627.) (Supreme Court of Alabama. Jan. 24, 1918. On Rehearing, April 25, 1918.) 1. INSURANCE 691-COMMISSIONER OF INSURANCE-EXAMINATION OF INSURANCE SOCIETY-PAYMENT OF EXPENSE. Where, upon request of the Grand Master of an insurance society, the state insurance commissioner directed plaintiff to examine the society's books under Acts 1911, p. 717, § 24, providing that the expense of examination shall be paid by the society upon certificate therefor by the commissioner, until issue of such certificate the society cannot be compelled to make payment therefor. 3. INSURANCE 691-EXAMINATION OF INSURER-CONTRACTS. Where an insurance society requested examination of its books and the state commissioner appointed plaintiff examiner, the society's relations were solely with the commissioner, and it did not incur contractual liability to the examiner, who was merely an agent of the insurance department, but was liable only upon certificate of expense from the commissioner. 4. OFFICERS 94—FEES-LAW OF CONTRACTS -APPLICATION. The principles of law governing contractual relations and obligations in ordinary cases cannot be accorded their ordinary operation and effect in dealings between public officers or their deputies and individuals with respect to fees and compensations provided by law. 8. INSURANCE 691-EXAMINATION FEESILLEGAL DEMAND-DEFENSES. It is no answer to the objection that an examiner's demand against an insurer for his fee prior to the commissioner's certification of its amount, is an unlawful demand for a fee, to say that the commissioner would fix some amount, a quantum meruit, since the special deputy commissioner had no right to fix his fee. Appeal from Circuit Court, Jefferson County; J. J. Curtis, Judge. Action by the C. S. Huffman Auditing Company against the United Brothers of Friendship and Sisters of Mysterious Ten and another. Judgment for plaintiff, and defendants appeal. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded. W. P. McCrossin and Geo. E. Bush, both of Birmingham, for appellants. Leader & Ewing, of Birmingham, for appellee. SOMERVILLE, J. The action is on several promissory notes executed by one J. S. Jackson, and by the United Brothers of Friendship, etc., a corporation, by said Jackson, as Grand Master of the state branch of said society, which was engaged in the business of insuring its members. The payee brings the action against Jackson and the society as makers of the notes. [1] In January, 1915, pursuant to the request of one Howze who was then Grand Master of the society, the state insurance commissioner, proceeding under section 24 of the act of April 24, 1911 (Acts 1911, p. 700), directed the plaintiff to examine said society, which he did by an examination and audit of their books and records. Said act provides that: "The expense of such examination shall be paid by the society examined, upon statement 5. INSURANCE 695-EXAMINATION OF IN- furnished by the commissioner (italics supSURERS EXPENSE FIXATION BY COMMIS-plied)." SIONER-WAIVER. - It cannot be presumed that the Grand Master of an insurance society had authority, nor that he was specially authorized, to waive the fixation of the amount of expense for its examination by the insurance commissioner as provided by law. 6. INSURANCE SURER-EXPENSE. 691-EXAMINATION OF IN Where the Grand Master of an insurance society was not authorized to request the state insurance commissioner for its examination or bind the society by any contract in its name, the society could not become liable to the examiner independent of the commissioner's certificate of costs of the examination authorized by statute. 7. INSURANCE DEMAND. 691-EXAMINATION-FEES A demand by an examiner appointed by the state insurance commissioner under Acts 1911, § 24, providing that the insurer pay costs of examination, upon an insurer for compensation in No such statement has ever been made or furnished by the commissioner, but in June, 1915, the plaintiff made claim upon said Jackson, who had become Grand Master of the society, for $700 as compensation for said examination, and obtained from him the notes sued on, which were founded solely upon that consideration. One of the special defenses pleaded is that the notes sued on were without consideration. It is clear that neither of the defendants were under any sort of obligation to pay the private demand of the plaintiff. The society was liable for the payment of such an amount as might be fixed and certified to it by the insurance commissioner, and its authorized notes for that obligation would have been founded upon a legal consideration. But un |