this: "The State of Alabama v. HowardHarrison Iron Company Pipe Works." It is probable that the additional words "Pipe Works" were employed, not as a part of the defendant's name, but as identifying it by this reference to the character of its business. In the summons to show cause against the proposed increased valuation, the defendant is called the "Howard-Harrison Pipe Works." The indorsements on the summons are as follows: "Original. HowardHarrison Iron Works. Executed by mailing a copy of the within notice to the HowardHarrison Pipe Works," etc. It is not denied that this notice did in fact reach the defendant. And the order or judgment of the court entered on the docket, under the caption of the case as set out above, is as follows: "It is ordered by the court of county commissioners that the assessment of the property of the Howard-Harrison Pipe Works in this case, lands, buildings, machinery, etc., be raised from $73,695 to $100,000." The summons or notice was amendable, and so also the return, in respect of the name of the defendant company. Railway Co. v.. Propst, 83 Ala. 518, 3 South. 764; Manufacturing Co. v. Greenleaf, 100 Ala. 272, 14 South. 109. And process which is amendable is not void, but will support a judgment. 1 Freem. Judgm. § 126. Hence we hold that the judgment or order of the commissioners' court was not void for the misdescription or misnomer of the defendant in the notice and return of service. Nor is the judgment or order rendered void by its own misnomer of the defendant. By reference to the assessment made and submitted by the tax commissioner, and to the docket entries preceding the entry of the order, the judgment becomes in its present form essentially one against the Howard-Harrison Iron Company; and, even if that were not true, the record supplies abundant data for its amendment nunc pro tunc, so as to make it speak its rendition against the defendant by accurate statement of the name of the corporation.

was not the bill which was passed by the general assembly, but materially variant therefrom, and that of consequence the act of 1894-95 is still of force. The variances which petitioner supposes to exist between the bill as it passed the senate and house, and the enrolled bill, which was signed by the president of the senate and the speaker of the house and approved by the governor, arose, it is insisted, upon the alleged facts that the senate amended section 15 of the bill as it passed the house by striking out the word "defendant" after the word "court," and inserting in lieu the words "either party"; that this amendment was never concurred in by the house, and thus was never passed by the general assembly, but that it is embodied in the enrolled bill as approved by the governor; and that the following words, "If he has written the book in ink and has entered the names of all taxpayers in those cases where two or more parties pay on the same tract of land," were in section 11 of the bill as passed by the house, and that no amendment striking them out was adopted by the senate, or, if such amendment was adopted by the senate, it was not concurred in by the souse, and that these words are not in the enrolled bill approved by the governor. Of course, the presumption is that the bill signed by the presiding officers of the two houses and approved by the governor is the bill which the two houses concurred in passing, and the contrary must be made to affirmatively appear before a different conclusion can be justified or supported. So here it must be made to affirmatively appear that amendments of the house bill in question were adopted by the senate and were not concurred in by the house. And this must be shown by the journals of the two houses. No other evidence is admissible. The journals can neither be contradicted nor amplified by loose memoranda made by the clerical officers of the houses. To these the courts cannot look for any purpose. Nor will it be presumed, from the silence of the journals on a matter upon which it is proper for them to speak, that either house has disregarded a constitutional requirement in the passage of an act, except in those cases where the organic law expressly requires the journals to show the action taken, as where it requires the yeas and nays to be entered. Walker v. Griffith, 60 Ala. 361; 1 Cooley, Const. Lim. 162; People v. Starne, 85 Am. Dec. 348, and notes; Jones v. Jones, 51 Am. Dec. 611, and notes; Hollingsworth Thompson (La.) 40 Am. St. Rep. 220, and notes (s. c. 12 South. 1).

But it is insisted that the commissioners' court was wholly without jurisdiction of the subject-matter of this proceeding, and that, therefore, of course, the judgment is absolutely void. This conclusion is sought to be rested upon the following considerations: (1) That the revenue act of 1894-95 created county boards of equalization,-bodies distinct from courts of county commissioners,and vested in said boards exclusively all powers in respect of equalizing assessments of property for taxation; and (2) that though this act of 1894-95 was in terms repealed, so far as the constitution and powers of said boards of equalization are concerned, by the act of February 18, 1897, to amend the revenue laws of the state, and all powers of equalization were thereby in terms reconferred upon the commissioners' courts, yet said last-named act is unconstitutional and void, for that the bill approved by the governor

V.

In respect of the act under consideration, the house journal shows that the bill originated in that body, was passed by it, and sent to the senate, where many amendments were adopted, and was returned to the house, which refused to concur in the senate amendments, and asked a conference upon them, appointing its members of a committee to

that end; that the senate granted the request for conference, and appointed its members of the conference committee; that the conference committee met, and agreed upon a report to the effect that the house should concur in senate amendments numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 15, 16, 162, 17, 18, 19, 20, 21, 23, 27, and 28, and that the senate should recede from its amendments numbered 11, 14, 24, 25, and 26; and that this conference report was adopted by the house. The senate journal shows that that body adopted quite a number of amendments to the house bill, and, among others, two amendments to section 15; that the house refused to concur in the senate amendments; that a conference committee was asked and appointed; that said committee reported that the house should adopt the amendments designated by the numbers as shown above in the report to the house, and that the senate should recede from its amendments numbered 11, 14, 24, 25, and 26; and that this report was adopted by the senate. It is not shown by either of the journals what were the amendments adopted by the senate, nor what were their numbers, respectively, nor what the amendments which the house concurred in, nor those from which the senate receded. It does appear from the senate journal, as we have seen, that two amendments to section 15 were adopted, and it also appears that amendments were adopted to several other sections by reference to the section numbers, and that "various other amendments were adopted," no reference to sections being made; but the journal utterly fails to show the nature of these amendments or their numbers. It may well be, for aught that the journals show or we can know, that the words which petitioner insists should have been in the enrolled bill when it was signed by the president of the senate and the speaker of the house, and approved by the governor, were not in the bill as it passed the house originally, or, if they were, that they were stricken out by one of the "various amendments" adopted by the senate, and that the amendment to this effect was one of those which was concurred in by the house on the report of the conference committee. And so in respect of the words "either party," which now appear in section 15 of the bill as enrolled, signed, and approved. The journals do not show, and we cannot know, but that these words were in the bill when and as it passed the house; or, if it be conceded they were not, it does not appear from the journals but that they were put into the bill by one of the two amendments made by the senate to that section, and that this amendment was one of those which were concurred in by the house in its adoption of the report of the conference committee. It therefore does not affirmatively appear that the bill signed by the presiding officers of the houses of the general assembly, and approved by the governor, is materially or at all variant from the bill that was passed by the general assembly, and the

objection urged against the act of February 18, 1897, "To amend the revenue laws of the state of Alabama," in this connection, is wholly unsupported by competent evidence. It follows that the commissioners' court of Jefferson county had jurisdiction of the subject-matter involved in this proceeding,-the equalization of the assessment of the property of the Howard-Harrison Iron Company for taxation.

It is further insisted, however, that, conceding the general jurisdiction of the commissioners' court to increase assessments, it yet has no power to act upon increased assessments made and submitted by the tax commissioner, since the act we have been considering takes no account of, nor makes any provision with reference to, the latter officer, and that, of consequence, the judgment or order of the court increasing the assessment of the petitioner is void. This position is untenable. It is true the act makes no mention of the tax commissioner, his powers or duties, but under it any citizen may enter such objection to any assessment as is requisite to put into operation the powers of the court as conferred by section 15 of the act, and the court, of its own motion, may proceed to increase an assessment, as in this case. Moreover, the act of February 3, 1897, "To provide for the more efficient assessment and collection of taxes in the state of Alabama," is to be taken in pari materia with the act of February 18, 1897, and section 11 of the former act expressly makes it the duty of the tax commissioner to make and submit to the commissioners' court additional assessments of property which he considers is undervalued in the original assessment.

But, aside from this, the act of February 3d, in and of itself, and without reference to the act of February 18th,-except as reconferring powers of equalization upon commissioners' courts,-confers complete authorization upon the tax commissioner and the commissioners' court to do and perform all that has been done in this case, including the appeal taken by the commissioner in the name of the state to the circuit court; and this, whether the provision of said act with reference to section 512 of the Code of 1886 be sustained or not. Section 11 confers the power and makes it the duty of the commissioner to submit additional assessments to the commissioners' court, and makes it the duty of the commissioners, if they are reasonably satisfied that undervaluation exists, to give notice "and try and dispose of such assessments as in other cases of undervaluations." This provision is complete in itself, and capable of perfect execution, without the succeeding provision, "and as provided for in section 512 of the Code of 1886," and is to be upheld, though the reference to section 512 of the Code should be stricken down as an attempt to revive a law by reference to its title only, which we do not decide. And while the act of February 3d does not, in express terms,

provide for an appeal from the action of the commissioners' court, section 16 thereof does so provide by the clearest implication.

There is nothing in the contention of petitioner that the judgment of the commissioners' court was not rendered at a term at which the court is authorized to equalize tax assessments. If the acts of February 3d and February 18th are to be taken together, the proceedings authorized by section 11 of the former act are to be had at the July term of the court. These proceedings were begun at that term, and concluded on a day in August to which they were adjourned, as provided in the act. If the act of February 3d is to stand apart without its provision with reference to section 512 of the Code of 1886, then no particular term of the court for action on the commissioners' assessments is prescribed. And if section 512 of the Code is to be taken as a part of it, then the term of the court which acted on the matter here involved, on August 13th, of necessity was the August term prescribed in that section. We find nothing in the case made before us to authorize either of the writs prayed in the petition, and the application for mandamus and prohibition is denied.

Plaintiff received similar shares of stock, belonging to defendant and two others, to negotiate a sale thereof. Said others testified that the insertion in the receipts to them for the stock of a condition requiring plaintiff to pay for the stock, if he did not return it within a specified time, was a mistake. Plaintiff sued to reform a similar receipt given to defendant, and testified that the insertion of such a condition was a mistake, and that defendant knew that plaintiff took his stock under the same conditions as those under which the stock of the others was taken. Defendant denied that the transaction with the others had any connection with the transaction with him, and denied that there was any mistake. Held not sufficiently clear and convincing to sustain reformation.

Appeal from chancery court, Madison county; William H. Simpson, Chancellor.

Bill by John Hertzler, Jr., against James R. Stephens to enjoin the collection of a judgment and to reform a contract. Decree for plaintiff, and defendant appeals. Reversed.

R. W. Walker and Tancred Betts, for appellant. Humes, Sheffey & Speake and Francis G. Caffey, for appellee.

HARALSON, J. On the 8th January, 1894, Henry P. Turner, James R. Stephens, Jr., William Burritt, H. & C. L. Toney, a partnership, and John Hertzler, Jr., the appellant, each owning 49 shares of the stock of the Hagey Hospital Association of Texas, a corporation organized under the laws of that state, agreed with, and obligated themselves

to James R. Stephens, that they would, at any time within three months from that date, sell, transfer and deliver to him, their respective shares of stock in said association, at and for the sum of $25.92 per share, stipulating, that in the event the said James R. Stephens should not avail himself of the option within the time specified, then the contract was to be void, and all parties to it discharged from any liability on account thereof.

This contract was plain and unambiguous. It was a mere option in said James R. Stephens to buy said stock, from each of the said shareholders, at the price named, at any time within three months from its date. He was under no obligation to give notice within the time, whether he would exercise the option or not. If he failed to do so, the contract by its own terms was abrogated. If he exercised the option, and paid the stipulated price, the stock became his. If he made money by purchasing, it belonged to him, and he was at liberty to exercise the option, as to any one or all the stockholders, at any time he chose to do so, within the three-months limitation for its exercise.

On the 16th of January, 1894, said Stephens executed the following receipt to the appellant: "Huntsville, Ala., January 16th, 1894. Received of John Hertzler, Jr., (49) forty-nine shares of the capital stock of the Hagey Hospital Association of Texas, to be paid for as per terms of a contract duly signed by said Hertzler, Jr., dated January the 8th, 1894, or the said forty-nine shares of stock to be returned by me to said Hertzler, within the time specified in said contract. J. R. Stephens. Witness: Erskine Mastin."

This writing was plainly an exercise of said option by said Stephens to purchase appellant's said stock on the terms therein specified, viz., that he should pay for it or return it to said Hertzler, Jr., within three months from the 8th day of January, 1894, the date of the contract of option. The option contract was thereby changed between said parties, and by the terms of the last agreement, Stephens was to do an affirmative act within the time specified,-either pay the specified amount for the stock, or return it to Hertzler. He failed to do either. Hertzler sued him at law, and recovered a judgment. He appealed to this court, and the judgment was affirmed. Stevens v. Hertzler, 109 Ala. 423, 19 South. 838.

Thereupon, Stephens filed the present bill, to enjoin the collection of said judgment, and to reform said contract of the 16th January, 1894, alleging in substance, that at the solicitation and request of said parties signing said option contract, including Hertzler, the complainant, without consideration, agreed to try and effect a sale of their stock for them on a visit he was contemplating making to Texas for the purpose; that he took said option contract as an accommodation to said parties, and in the interest of his son, J. R.

Stephens, Jr., who owned a block of the stock, and with no view of making money out of it himself; that it was with this purpose he consented to try to effect a sale of said stock in Texas and accepted said option with this understanding; that in pursuance of this suggestion made by the said parties who signed the option, he received said stock, agreeing that he would take it with him to Texas, and if he was enabled to make sale of it, he would account to them for the proceeds of the sale, and if he failed to make sale of it, he would return the stock to them; that to carry out this intention and understanding, and as an evidence of the receipt of it by him, he gave the defendant, Hertzler, the receipt for the stock copied above, with the understanding between him and Hertzler, that he was to be liable for the stock only in the event of his making a sale of it during his visit to Texas, but that through a mistake the paper he executed did not express the agreement and understanding between them, etc.

The bill was demurred to on various grounds, and a motion was made to dismiss for want of equity. The court sustained the demurrer, and granted the motion to dismiss. On appeal, we reversed that decree, and rendered one, overruling the demurrer and motion to dismiss, and allowed defendant 30 days in which to answer. Stevens v. Hertzler, 114 Ala. 563, 22 South. 121.

Hertzler answered, making positive denial of the material allegations of the bill. He denied that there was any contract other than that evidenced by the writings.

The chancellor on final hearing, granted the relief prayed for, and this decree is assigned as error. It is altogether a question of fact, therefore, as governed by the rules of law in such cases, whether the decree of the court shall be affirmed or not.

It is important for the proper determination of the cause, to make reference to the well-established principles governing the reformation of contracts on account of alleged mistakes in their execution.

In Campbell v. Hatchett, 55 Ala. 551, it was said: "The court in the exercise of its jurisdiction (to reform written instruments on account of mistake or fraud in their execution) proceeds with the utmost caution, as it involves the invasion of a salutary rule of evidence prevailing at law and in equity. In all cases, unless the mistake is admitted, it must be proved by clear, exact, and satisfactory evidence, that the mistake exists, -that the writing deviates from the intention and understanding of both parties at the time of its execution,-or the court will decline to interfere." Ohlander v. Dexter, 97 Ala. 476, 12 South. 51.

In Guilmartin v. Urquhart, 82 Ala. 571, 1 South. 897, the court said: "To authorize the reformation of a contract which has been reduced to writing and signed, the proof must be clear, exact and satisfactory,-First, that

the writing does not express the intention of the parties that on which their two minds had agreed; and second, what it was the parties intended the writing should express."

The burden in such cases is always on the complainant to show by evidence that is clear, exact, convincing and satisfactory, that the written contract does not express the true agreement between the parties. Moore v. Tate, 114 Ala. 582, 21 South. 820. If the proof "is uncertain in any material respect, it will be held insufficient; and while the courts may feel a great wrong has been done, they can grant no relief by reason of uncertainty." Alexander v. Caldwell, 55 Ala. 522; Berry v. Sowell, 72 Ala. 17.

"The authorities," says Mr. Pomeroy, "all require that the parol evidence of the mistake, and of the alleged modification, must be most clear and convincing, or else the

mistake must be admitted by the opposite party; the resulting proof must be established beyond a reasonable doubt. Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of the evidence, but only upon a certainty of the error." 2 Pom. Eq. Jur. § 859.

"Until beyond reasonable controversy, the mistake is made to appear, the writing must remain the sole expositor of the intent and agreement of the parties." Hinton v. Insurance Co., 63 Ala. 488; Smith v. Allen, 102 Ala. 406, 14 South. 760.

If the case were tried alone upon the evidence submitted by appellee, it may be the proof would authorize the relief prayed. Touching the alleged mistake in the execution of said receipt to Hertzler for the stock, of date 16th January, 1894, complainant testified, that in a conversation he had with defendant at the time he gave the receipt, he stated that his object in taking the stock with him to Texas was, to be able to deliver it promptly in the event of a sale, and if he could not do anything with it, could not make any sale of it, he would return it to defendant, and that the object in giving the receipt was to show that he had the stock and what he was to sell it at, if he found a buyer. Erskine Mastin, who witnessed the signature of Stephens to the receipt, testified that he knew nothing about the contract between the parties in regard to a sale of the stock; that he knew nothing of the transaction between Stephens and Hertzler; was too far off and paid no attention to what they were saying, but that when he came to witness the signature, he casually heard Stephens say, that when he returned from Texas, he would bring the money or return the stock.

The complainant examined, also, Harris and Charles Toney and Henry P. Turner, parties in Alabama, who, besides Hertzler, signed the option contract, and to whom complainant, afterwards, gave receipts, the one to the Toneys, on the 18th January, 1894, and the other to Turner, on the 22d January, 1894, in

each of which it was specified, that the stock was to be taken at the price named in the option contract signed by them, or said stock returned in the time specified. The proof showed that Turner's stock was returned to him on the 12th May, 1894; and the Toneys' at some time after the expiration of the 90 days mentioned in the option. As to these parties, proof was admitted, whether properly or not, we need not decide, that as to them, they understood the transaction to be as the complainant construed it. The defendant's receipt for his stock, however, from Stephens, was given at a different time, and this transaction between Stephens and the other parties, if admissible for any purpose against Hertzler, was not necessarily the same transaction as the one with Hertzler, unless it were shown, they all agreed beforehand, that they would deliver their stock to Stephens, for the same purposes and on the same terms, and the receipts were afterwards given in execution of this common understanding; or, in other words, that the contract between each and all of them with Stephens was the same. Defendant's receipt from Stephens specified, by its terms, that his stock should be paid for as per terms of the option contract, or returned within the time therein specified. It is proper to state, in this connection, that Stephens' own evidence tends to show that he made, and defendant understood him as making, the same contract with him, that he made with these other parties. But the defendant denies that he had any connection with the other parties as to this matter, and he deposes that he made no other contract with Stephens than the one disclosed on the face of the papers. It reasonably appears he did not solicit Stephens to take an option on said stock for his (defendant's) benefit as is averred in the bill, but that he gave it at the solicitation of Stephens, who had the option drawn up by an attorney, and presented it as drawn to defendant for execution. And, as for the receipt afterwards given by Stephens to defendant for his stock, it is plainly enough shown, that defendant did not propose its giving or dictate its terms. Stephens himself testified: "I wrote the receipt without any suggestion as to the wording of it from John Hertzler, Jr., and intended it to read the same as the other receipts given (to the Toneys and Turner), as the condition that I took the stock was the same as that when I took the stock of Henry Turner and the Toneys, and without thinking of the legal bearing the words of the receipt gave it." We have seen that the only difference between Hertzler's receipt and the ones given to the other parties is, that in Hertzler's, the stock was to be paid for by Stephens at a certain price, or returned to Hertzler within, the time specified in the option; and in the others that the stock was "to be taken at the price named in the (option) contract signed", by the parties to it. respectively, or the stock was to be returned in the time specified therein. The words

"taken" and "paid for," as employed in the different receipts, amount to the same in legal effect. If the paper to defendant had read, that Stephens should, within the time specified, take the stock or return it to defendant, and he failed to return it within the 90 days, his obligation, on the face of the paper, to pay for it at the stipulated price, would have been complete, but not less so than when he employed the words "paid for" therein. This much of Stephens' evidence tends to show that he made no mistake in drafting his receipt to defendant.

If we accord to complainant, as we do, an honest intention in executing said paper, as he alleges it in his bill, and to his proof, all he claims for it, yet on the other hand, we are confronted with a denial in defendant's answer of the alleged mistake, and by his clear and unmistakable testimony, that no such mistake as that set up was made in the execution of said contract, but that the real and only understanding between him and complainant was that imported on the face of said papers. This leaves us,-conceding to the respective parties equal honesty of intention and purpose,-without that clear, exact, convincing and satisfactory evidence upon which the relief sought may be properly granted. This conclusion is inevitable, if we do not discard the defendant's evidence, and adopt that of complainant as true, which we are not permitted to do. We prefer to accord equal veracity to each of the parties, and believe there existed an honest difference of understanding between them, which is fatal to the bill.

The complainant and defendant differ in their testimony as to some details respecting the time and place of the execution of the option contract, and in some other particulars not of controlling importance, all reconcilable on the score of infirmity of memory on the part of one or both of them, and which it would serve no good purpose to discuss at length, as counsel have done.

A decree will be here rendered, dissolving the injunction granted, reversing the cause and dismissing the bill.

Reversed and rendered.

(119 Ala. 101)

McKISSACK v. VOORHEES et al. (Supreme Court of Alabama. Oct. 29, 1898.) APPEALABLE ORDERS-EQUITY-PLEADING-Suffi CIENCY OF BILL-DISCOVERY OF ASSETS -RECEIVERS-Contempt.

1. An order granting a rule nisi is not appealable.

2. Creditors prosecuting a bill under Code 1896, § 819, for the discovery of assets, are not entitled to an order requiring their debtor to pay to a receiver more than the amount of their claims, though the bill was brought in behalf of all creditors who might come in.

3. A bill is not demurrable for containing a blank in that part of the caption which sets out complainants' names, where their names are given in the body of the bill.

4. A bill brought under Code 1896, § 819, for