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[Russell v. Jones,]

The notes sued on were given by the defendant below, Russell, to the plaintiff, Jones, and grew out of a transaction of the insurance of the life of defendant by the Mutual Life Insurance Company of Kentucky, a foreign corporation, of which the plaintiff was, at the time, an agent. The defense relied on was, that said insurance company, before beginning business in this State, and previous to the execution of the notes sued on, had failed to comply with the requirements of section 1209 of the Code, prescribing conditions on which foreign corporations may transact business in this State.

The proof shows that the company was a Kentucky corporation; that defendant took out a policy of insurance on his life in the company, paid part of the premium in cash and gave his notes for the balance. If this were all, and the contract were executory, and it were shown the company had failed to comply with the requirements of the section of the Code above referred to, there could be no question, but that, under our adjudications, there could be no recovery on the notes. The plaintiff, however, testified to a state of facts which, if true, takes these notes out from the influence of those decisions and places them under the influence af others, which hold that, where the contract has been executed, there can be no relief granted, because the transaction originated with a foreign company, which had not complied with our laws.-Long v. Ga. Pac. R. R. Co., 91 Ala. 519, 8 So. Rep. 706; Craddock v. Am. Freehold Land Mortg. Co. of London, 88 Ala. 282, 7 So. Rep. 196.

The defendant testified, that these notes were given in extension of his notes previously given for premiums due by him to said company, and that he did not know he was dealing with the plaintiff except as agent of the company. The plaintiff testified, in substance, that he had no interest whatever in the life insurance policy referred to, or in any premiums thereon; that the company had sent out the renewal receipts to be delivered to the defendant on payment by him of his premium notes; that defendant stated he was pressed for money and could not pay the amount due on his insurance policy; that plaintiff proffered to advance the money for defendant, to enable him to pay his premiums, and take his notes, if he was sure he could pay when the notes fell due, which defendant said he could do; that plaintiff

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[Wadsworth v. Williams.]

made inquiry and was satisfied with defendant's financial standing, and, accordingly, he advanced the money to the company for defendant and took his notes, surrendered to him his renewal receipts, and forwarded to the company the amount due from defendant; that the notes taken were not for the benefit of the company, and it had no knowledge of or interest in them, but that the transaction was entirely and exclusively a personal one between the plaintiff and the defendant; that plaintiff discounted said notes at bank, and when they matured defendant claimed to be unable to pay them, and asked an extension of time, whereupon plaintiff, as endorser, paid the bank, the notes were re-transferred to him, and further indulgence was allowed to defendant; that the sole consideration of the notes was the money so advanced by plaintiff individually to defendant, and he had no control over or interest in defendant's policy of insurance.

The defendant denied that this conversation occurred, as to plaintiff's advancing the money for him; but he admitted that in the conversation, about which plaintiff had testified, he agreed to extend the time on the premium, and the notes were accordingly extended. The notes show on their face, that they were payable to the plaintiff individually, and not to the insurance company. The defendant introduced evidence tending to show that the insurance company had not complied with the requirements of the statute.

The trial was had by and before the presiding judge, a jury having been waived as provided by statute in such cases, and a judgment rendered in favor of the plaintiff against the defendant. We fail to We fail to see that the trial court committed any error in the judgment it rendered, and it is accordingly affirmed.

1.

Wadsworth v. Williams.

Action of Trespass for Cutting Timber.

Bill of exceptions; presumption when all the evidence not set out.— When the bill of exceptions does not purport to set out all the evi

[Wadsworth v. Williams.]

dence, this court will, on appeal, presume there was evidence introduced on the trial of the cause which justified the action of the lower

court.

2. Charge to the jury; undue prominence to a part of the evidence.-A charge to the jury which emphasizes and gives undue prominence to any single fact or part of the evidence, is calculated to mislead the jury and should be refused.

3. Abstract charges.-Charges that are abstract should be refused, although they contain correct propositions of law

APPEAL from the Circuit Court of Autauga.
Tried before the Hon. JAMES R. DOWDELL.

This was an action of trespass, brought by the appellee, James R. Williams, against the appellant, W. W. Wadsworth, to recover damages for cutting and carrying away timber and wood from the lands, which were alleged to be the property of the plaintiff; and was commenced on March 7, 1891.

The bill of exceptions in this case was as follows: "The plaintiff introduced for the purpose of showing possession of certain land, the following deeds, one from Marity Mire to H. W. Clark & Co.-a timber deed-exexecuted on the 26th day of May, 1883, and filed in the probate office of Autauga county for record April 22d, 1891, and recorded July the 10th, 1891. And one deed from Marity Mire to Albert Mire, executed the 27th day of November, 1888, which deed was filed for record in the probate office of Autauga county, February 2, 1891, and recorded July 14, 1891. During the progress of the trial, the defendant introduced evidence tending to show that he came into the possession of the lands in controversy in this case under a deed executed to him by W. C. Howell and wife, Kate T. Howell, May 29th, 1879. Thereupon the defendant asked the court to give the following charges which were in writing: (1.) The jury, in investigating the question of possession of the lands, the subject of contention in this suit, may look to the fact, if it be a fact, that some of the deeds introduced by the plaintiff were not recorded in the probate court of Autauga county until the commencement of this suit in this court. (2.) That the jury, in investigating the facts of this case and weighing the testimony, may look to the fact, if it be a fact, that the Mire's deed and the timber right deed to Clark & Co., introduced by the plaintiff, were not recorded in the probate court until the

[Wadsworth v. Williams.]

commencement of this suit; and if the jury believe from the evidence that the defendant entered into the possession of the lands in controversy, in good faith and under color of title, and held the same without notice of the plaintiff's title, then he would not be liable for the alleged trespass, and a verdict can not be rendered in favor of the plaintiff. The court refused each of the charges above mentioned, and to the refusal of each of said charges the defendant excepted."

There was judgment for the plaintiff. The defendant appeals, and assigns as error the refusal of the court to give the charges requested by him.

J. M. FALKNER, for appellant.

No counsel marked for appellee.

COLEMAN, J.-This was an action to recover damages for trespass upon lands. The assignments of error are based upon the refusal of the court to give two several charges requested in writing by the defendant. No briefs have been filed by either party.

The bill of exceptions is very meagre, and does not purport to set out all the evidence. When this is the case this court will presume there was evidence introduced on the trial which justified the action of the court. Evansville, Paducah & Tennessee River Packet Company v. Slater, ante, p. 245, and authorities collected.

The first charge requested directed the attention of the jury to a single fact. There may have been other facts in evidence, controlling or qualifying the fact thus singled out. Moreover, it is not error to refuse a charge which emphasizes and gives undue prominence to any single fact. Such charges are calculated to mislead the jury, and generally are regarded as argumentative, and for this reason may be properly refused.-Bell v. Kendall & Co., 93 Ala. 489; A. G. S. R. R. Co. v. Sellers, Ib. 9; Jackson v. Robinson, Ib. 157; Eastis v. Montgomery, Ib. 293.

From all that appears in the record the second charge refused was abstract.-Bostic v. The State, 94 Ala. 45; Smith v. Collins, Ib. 394.

There is no error in the record.

Affirmed.

[Kellar v. Bullington.]

Kellar v. Bullington.

Bill in Equity to enjoin the Commission of Trespass.

1. Injunction; when granted to enjoin trespass.-A court of equity will not grant an injunction to prevent the commission of trespasses, unless the complainant shows a satisfactory title to the locus in quo; and if the title be denied or in doubt, the injunction will be refused against the defendant who is in possession, until the title is established at law. "

2. Same. An injunction will not lie in favor of a complainant not in possession of the actual property trespassed upon, to restrain the removal of stone from lands of which the defendants had possession under a claim of ownership, when the complainant obtained title thereto from the Government by his entry as a homestead, until the disputed question of title has been adjudicated.

APPEAL from the Chancery Court of Colbert.
Heard before the Hon. THOMAS COBBS.

The facts of the case are sufficiently stated in the opinion.

L. B. COOPER, and ROULHAC & NATHAN, for appellant. The commission of the trespass vel non by the respondents in this case depended upon the validity of their claim of title to the property upon which the trespass was alleged to have been committed. A court of chancery had no jurisdiction to determine the issue, and the parties should have been remitted to a court of law for its determination. The case made by the averments of the bill was not such a one as would justify the granting of the injunction prayed for.-Hambrick v. Russell, 86 Ala 199, 5 So. Rep. 289; Hooper v. S. & M. R. R. Co., 69 Ala. 537; Armstrong v. Gilchrist, 2 Johns. Cas. 424, 430-1; People v. Chicago, 52 Ill. 424, 428; 1 Pomeroy Eq. Jur., § 176; 1 High on Inj., (3d. Ed.), § 650; Bell v. Chadwick, 71 N. C. 329; Sullivan v. Rabb, 96 Ala. 442, 5 So. Rep. 746; Jerome v. Ross, 7 Johns. Ch. 315.

J. B. MOORE, contra, cited 9 Ala. 289; 21 Ala. 288; Oaksmith v. Johnson, 92 U. S. 343; Farley v. Smith, 39

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