The petition alleged: “(1) That D. L. Butts, of said county, is in possession of certain personal property, to wit, five bales of cotton which were delivered to said D. L. Butts during the month of November, 1904, by W. W. Devereaux, for which the said D. L. Butts executed his warehouse receipts to the said W. W. Devereaux. The two bales marked ‘ff. D.,’ Nos. 1 and 2, weights 466 and 497, were. delivered to said D. L. Butts on Nov. 13, 1904. ■One bale, marked ‘W. D.,’ No. 3, weight 519, was delivered to said D. L. Butts on Nov. 17, 1904. One bale marked fW. D.,’ No. 4, weight 502, was delivered to said D. L. Butts, on Nov. IS, 1904. One bale marked *W. D.,’ No. 5, weight 517, was de*772liver eel to said D. L. Butts, on Nov. 19, 1904, all of the value of two hundred, ninety-seven and 61/100 dollars ($297.61); to which above-described cotton your petitioner claims title. (2) That although your petitioner has offered to pay and tendered the said D. L. Butts the customary charges for insurance and storage on said cotton on the receipt or delivery of said cotton to the order of your petitioner, which the said D. L. Butts has agreed t'o do, yet the said D. L. Butts refuses to deliver the above-described property to your petitioner.”
R. L. Merritt, for plaintiff. W. H. Burwell, for defendant.The defendant filed the following demurrer: (1) No legal or equitable cause of action is set forth in plaintiffs petition. (2) Paragraph 1 of the petition fails to show by proper allegations-how the title to the cotton sued for got out of W. W. Devereaux and vested in the plaintiff. (3) If the plaintiff, in paragraph 1, means to say that the title to the cotton sued for passed out of W. W. Devereaux into the plaintiff, by an assignment of warehouse receipts issued by the defendant, a copy of the receipts should be attached to or set out in the petition, so as to put defendant on notice of the plaintiff’s claim. (4) Plaintiff fails, in paragraph 2, to state the amount tendered, or to specify the amount for storage, and the amount for insurance, tendered, that the tender was continuous, and how and when made. (5) Paragraph 2 is too vague and indefinite, both as to tender and the character of receipt referred to. The 'court sustained the demurrer, and the plaintifE excepted.