
    (87 South. 876)
    SIMPSON v. E. C. PAYNE LUMBER CO.
    (8 Div. 598.)
    (Court of Appeals of Alabama.
    Feb. 24, 1921.)
    Appeal from Circuit Court, Morgan County; O'. Kyle, Judge.
    Action by the E. C. Payne Lumber Company against Mary D. Simpson, in assump-' sit. Judgment for plaintiff, and defendant appeals.
    Affirmed in accordance with mandate of Supreme Court, 87 South. 876.
    Callahan & Harris, of Decatur, and Tennis Tidwell, of Albany, for appellant.
    The contentions made by petitioner are fully answered by the opinion of the court of appeals as well as the following authorities: 8 Port. 268, 33 Am. Dec. 289; 3 Ala. 585, 37 Am. Dec. 714; 49 Ala. 281; 64 Ala. 2S, 38 Am. Rep. 1. The mere drawing, delivery and presenting did not constitute an assignment and therefore no liability was fixed oil the defendant. 5 C. J. 916; 70, N. Y. 279; 56 N. J. Eq. 187, 38 Atl. 955;' 151 Mass. 383, 24 N. E. 210, 21 Am. St. Rep. 456.
    •E. W. Godbey, of Decatur, for appellee.
    The appellate court erred in holding that the suit against the executrix was admissible contrary to the ruling of the Supreme Court. 203 Ala. 668, 85 South. 9; 148 U. S. 228, 13 Sup. Ct. 611, 37 L. Ed. 432; 178 Ala. 636, 59 South. 462. Court erred in holding ejunt seven subject to demurrer. 64 Ala. 28, 38 Am. Rep. 1, 118 Ala. 572, 23 South. 798; 18 Wis. 196, 86 Am. Dec. 759; 5 Wheat. 277, 5 L. Ed. 87; 98 Fed. 701, 39 C. C. A. 241; 165 U. S. 645, 17 Sup. Ct. 439, 41 L. Ed. 855; 12 Cal. 92, 73 Am. Dec. 523; 58 Miss. 5, 38 Am. Rep. 311; 86 Ala. 490, 5 South. 867; 196 Ala. 417, 72 South. 89. On these authorities the court was in error in holding counts 8 and 9 were subject to demurrer.
   PER CURIAM.

Under the decision of the Supreme Court in Ex parte Lumber Co., 87 South. 876 (petition for certiorari, 8 Div. 308), the judgment of the lower court must be“affirmed.

Affirmed.  