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Full text of "Report of cases argued and determined in the Supreme court of Alabama"

UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 
LIBRARY 

Faculty Library 



DENNIS & CO.. INC. 

Law Book Publishers 

251 MAIN STREET 

BUFFALO 3. N.Y. 



Digitized by the Internet Archive 

in 2007 with funding from 

IVIicrosoft Corporation 



http://www.archive.org/details/alabamasupreme76alabiala 



REPORTS 

CASES ARGUED AND DETERMINED 



Supreme Court of Alabama, 



DUBING THE 



IDECEiyCBEia TEiaiv^, 1884. 



BY 

JNO. W. SHEPHERD, 

STATE REPOKTEE. 



VOLUME LXXYI. 



MONTGOMERY, ALA.: 
PUBLISHED BY JOEL WHITE. 

1885. 



J 




Entered according to act of Confrress, in the year 18&5, by 

Joel White, 
In the office of the Librarian of Congress at Washington, D. C. 



PRINTED BY BARRETT & CO., MONTGOMERY, ALA. 



OFFICERS OF THE COURT 

X)"CJI«-I3SrQ- THE TI3ytB OIF THESE IDeCISION"S. 



GEORGE W. STONE, Chief Justice, Montgomery. 
H. M. SOMERVILLE, Associate Justice, Tuskaloosa. 
DAVID CLOPTON, Associate Justice, Montgomery. 

THOS. N. McClelland, Attorney-Genkral, Athens. 
JOHN W. A, SANFORD, Clerk, Montgomery. 
JUNIUS M. RIGGS, Marshal, Montgomery. 
STERLING A. WOOD, Private Secretary, Tuskaloosa. 



ERRATA. 



In Carlisle v. The State, p. 77, third line from bottom, for " explained," 
read " employed." 

In Childs v. The State, p. 95, eighth line from bottom, for "have the 
jury," read " leave the jury." 

In Caldwell v. King, p. 157, top line, for "Jill the bill," read "file the 
bill." 

In Melton v. Andrews, p. 587, fourth line from bottom, for " remanded," 
read ' ' rendered. ' ' 



TABLE OF CASES. 



Adatns v. Sayre, 509 

Ala. Great Southern Railroad Co. 

V. Hill, 303 

Ala. Great Southern Railroad Co. 

V. Roebuck, 277 

Alba ats. Shakespeare, 351 

Alford V. Lehman, Durr&Co.,. .526 

Allen ats. Bell, 450 

Anderson ats. Jones, 427 

Anderson, Green & Co. ats. Sand- 

lin, 403 

Andrews ats. Melton,. 586 

Askew Brothers v.Steiner& Lob- 
man, 218 

Baker v. Barclift, 414 

Bank (Eufaula National) ats. 

Watts, 474 

Bankhead ats. Owen, 143 

Barclift ats. Baker, 414 

Beattv ats. Brown, 250 

V. 267 

Bell V.Allen, 450 

Hall, 546 

Blanton ats. Peterson 264 

Booker v. The State, 22 

Bovkin ats. L. & N. Railroad Co., 560 

McPherson, 602 

Brewer ats. M. & M. Railway Co., 135 

Bright V. The State, 96 

Brooks ats. Townsend, 308 

Brown ats. Beatty, 267 

V. 250 

Hamil, 500 

Brunson v. Morgan, 593 

Bryant v. The State, 33 

Bube V. State, 73 

Burns & Co. v. Moore & McGee, . 339 
Burt ats. Foster, 229 

Caldwell v. King, 149 

Callen v. Rottenberry, 169 

Calloway ats. Childress, 128 

Campbell ats. Carlisle, Jones & 

Co., 247 

Carlisle v. The State, 75 

Carlisle, Jones & Co. v. Camp- 
bell, 247 

Carr ats. Central Railroad & 

Banking Co., 389 

Carroll ats. Dickerson, 377 



Carroll it Coleman ats. Hodges 

Brothers, 103 

Cary v. The State, 78 

Central Railroad & Banking Co. 

V. Carr, 389 

Central Railroad & Banking Co. 

V. Lampley, 357 

Central Railroad & Banking Co. 

V. Smith, 572 

Childress v. Calloway, 128 

Childs V. The State, 93 

Clark ats. Guilmartin, r. .204 

Lamb, 406 

Clements v. Hays, 280 

Cleveland ats. Mobile Mutual In- 
surance Co.,. 321 

Cockburn v. Watkins, 486 

Coleman & Carroll ats. Hodges 

Brothers 103 

Comer ats. Espy, 501 

Cosby ats. Wood, 557 

Cox V. The State, m 

Crosby v. Pridgen, 385 

Cunningham v. The State, 88 

Curry & Co. ats. Stringfellow,. .394 

Davis ats. Howze, 381 

Dickerson v. Carroll, 377 

Diggs ats. Hatcher, 189 

Dixon V. The State, 89 

Doe, ex dem. Evans v. Richard- 
son, 329 

Dud lev & McGuire (Ordway) ats. 

McHan, 347 

Duncan ats. Thompson, 334 

Dunklin & Reese ats. Farley, . .520 
Dunlap V. The State, 460 

East Tenn., Va. & Ga. Railroad 

Co. V. Hughes, 590 

Ellis V. The State, 90 

Englehardt v. Yung's Heirs,. . .5.'54 

Enzor A McNeill v. Hurt, 595 

Equitable Life Assurance Society 

v. Vogel, 441 

Equitable Nuptial Benefit Union 

ats. White, 251 

Espy V. Comer, 501 

Eufaula National Bank ats. 

Watts, 474 



VI 



TABLE OF CASES. 



Evans (Doe, exdem.) v. Richard- 
son, 329 

Ex parte Macdonald, 603 

Pearson, 521 

State, in re Tate, 482 

Farley v. Dunklin & Reese,. . . .530 

Felrath v. Schonfield, 199 

Foster v. Burt, 229 

Fowler & Co. ats. Manhattan Fire 
Insurance Co., 372 

Ganey v. Sikes, 421 

Gardner's Adin'r ats. Washburn, 597 

Garrett v. The State, 18 

Glass V. Glass, 368 

Goodall,McLester&Co. v. Lang- 

worthv, 325 

Griffin v. The State, 29 

Gude V. Tlie State, 100 

Guesnard v. L. & N. Railroad 

Co., 453 

Guice V. Thornton, 466 

Guilmartin v. Clark, 204 

Wood, 204 

Hall ats. Bell, 546 

Hamil ats. Brown, 506 

Harrison v. Parmer, 157 

Harsh, McLean & Hardison v. 

Heflin, 499 

Hatcher v. Diggs, 189 

Hatchett v. Molton, 410 

Hays ats. Clements, 280 

Heflin ats. Harsh, McLean & 

Hardison, 499 

Helmetag's Adm'r v. Miller,. . .183 

Hensley v. Rose, 373 

Herr v. Seymour, 270 

Hill ats. Ala. Great Southern 

Railroad Co., 303 

Hinson ats. Steed, ' 298 

Hodges Brothers v. Coleman & 

Carroll, 103 

Horton ats. Jaques, 238 

Howze V. Davis, 381 

HufTman ats. S. & N. Ala. Rail- 
road Co., 492 

Hughes V. EastTenn., Va. & Ga. 

Railroad Co., 590 

Hurst, Miller & Co. ats. Terrell 

& Vincent, 588 

Hurt ats. Enzor & McNeill, 595 

Insurance Co. (Manhattan Fire) 
V. Fowler & Co., 372 

Insurance Co. (Mobile Mutual) 
V. Cleveland, 321 

Jackson v. The State, 26 



Jaques v. Horton, 238 

Jones V. Anderson, 427 

The State, 8 

Jones & Co. (Carlisle) v. Camp- 
bell, 247 

Kemp V. Lyon, 212 

Kilgrow V. The State, 101 

King ats. Caldwell, 149 

Lamb ats. Clark, 406 

Lampley ats. Central Railroad & 

Banking Co., ;357 

Langworthy v. Goodall, McLes- 

ter &Co., 325 

Lehman, Durr & Co. ats. Alford,526 
Leinkauff & Strauss v. Munter, .194 

Leloup ats. Port of Mobile, 401 

Levisohn v. Waganer, 412 

Little V. McPherson, .552 

Louisville & Nashville Railroad 

Co. V. Boykin, 560 

Louisville & Nashville Railroad 

Co. V. Huffman, 492 

Lyon ats. Kemp, 212 

Macdonald, Ex parte, 603 

Maguire ats. Otis, 295 

Mancill ats. Watson, 600 

Mangan v. The State, 60 

Manhattan Fire Insurance Co. v. 

Fowler & Co., 372 

Marcus v. Robinson, 550 

May V. Wilkinson, 543 

McBride ats. Tlie State, 51 

McDaniel v. The State, 1 

McHan v. Ordway, Dudley & 

McGuire, 347 

Mcllwain v. Vaughan & Wife,. .489 

iVIcLeod & Co. ats. Powe, . .418 

McPherson v. Boykin, 602 

ats. Little, 552 

McNeill & Enzor v. Hurt, 595 

Medical & Surgical Society ats. 

Weatherly. 567 

Melton V. Andrews, 586 

Merrill's Heirs v. Morrissett,.. .433 

Meyer & Co Sulzbaclier, . •. 120 

Miller ats. Helmetag's Adm'r,. .183 
Miller & Co. (Hurst) ats. Terrell 

& Vincent, 588 

Mobile Mutual Insurance Co. v. 

Cleveland, 321 

Mobile ^Port of) v. Leloup, 401 

Mobile &. Montgomery Railway 

Co. V. Brewer, 135 

Molton ats. Hatchett, 410 

Moore & McGee ats. Burns & Co., 339 

Morgan ats. Brunson, 593 

Morrissett ats. Merrill's Heirs,. 433 



TABLE OF CASES. 



vn 



Moss ats. Rouey, 491 

Munter ats. Leinkauff & Strauss, 194 

Nuptial Benefit Union (Equita- 
ble) ats. White, 251 

O'Donuell v. Rodiger, 222 

Ordwav, Dudley <& McGuire ats. 

McIIan, 347 

Otis V. Maguire, 295 

Owen V. Baukhead, 143 

Parmer ats. Harrison, 157 

Pearson, E.r pnrte, 521 

Pensacola Railroad Co. v. Schaf- 

fer, 2.33 

Peterson v. Blanton, 264 

Phelan v. Rosenstok, 49 

Pinney ats. AVerborn, 291 

Port of Mobile v. Leloup, 401 

Powe V. McLeod & Co., 418 

Powell V. Robinson & Ledyard, , 423 
Pridgen ats. Crosby, 385 

Railroad Co. (Ala. Great South- 
ern) V. Hill, 303 

Railroad Co. (Ala. Great South- 
ern) V. Roebuck, 277 

Railroad Co. (E. T., Va. & Ga.) 

V. Hughes, 590 

Railroad Co. (L. &N.) v. Boykin,560 
ats. Gues- 

nard, 453 

Railroad Co. (Pensacola) v. 

Schatfer, 233 

Railroad Co. (S. & N. Ala.) v. 

Huffman, 492 

Railroad & Banking Co. ( Central ) 

V. Carr, 389 

Railroad <fe Banking Co. (Central) 

V. Lampley, 357 

Railroad <fc Banking Co. (Central ) 

V. Smith, 572 

Railway Co. (Mobile & Mont- 
gomery) V. Brewer, 135 

Richardson ats. Doe, ex dem. 

Evans, 329 

Robertson's Ex'rs ats. Sharp, . . .343 

Robinson ats. Marcus, 550 

Robinson & Ledyard ats. Powell, 423 

Rodiger ats. O'Donnell, 222 

Roney ats. Moss, 491 

Rose ats. Hensley, 373 

Rosenstok ats. Phelan, 49 

Rottenberry ats. Callen, 169 

Sandlin v. Anderson, Green & 

Co., 403 

Sayre ats. Adams, 509 

Watts & Son, ...397 



Schaffer ats. Pensacola Railroad 

Co., 233 

Schonfield ats. Felrath, 199 

Searcy ats. Wilkinson, 176 

Seymour ats. Herr, 270 

Shakespeare v. Alba, 351 

Sharp V. Robinson's Executors, 343 

Sharp, 312 

Shines v. Steiner, 458 

Sikes ats. Ganev, 421 

Sills V. The State 92 

Smith ats. Central Railroad & 

Banking Co., 572 

Smith V. State, 69 

South & North Ala. Railroad Co. 

V. Huffman, 492 

State ats. Booker, 22 

Bright, 96 

Bube, 73 

Bryant, 33 

Carlisle, 75 

Cary, 78 

Childs, 93 

Cox, 66 

Cunningham, 88 

Dixon, 89 

Dunlap, 460 

Ellis, 90 

Ex parte, in re Tate,. . 482 

Garrett, 18 

Griffin, 29 

Gude, 100 

Jackson, 26 

Jones, 8 

Kilgrow, 101 

Mangan, 60 

V. McBride, 51 

ats. McDaniel, 1 

ex rel. Phelan, 49 

ats. Sills, 92 

Smith, 69 

West, 98 

Winslow, 42 

W^oods, 35 

Steed V. Hinson, 298 

Steiner ats. Shines, 458 

Steiner & Lobman ats. Askew 

Brothers, 218 

Strauss & Leinkauff v. Munter, . 194 
Stringfellow v. Curry & Co.,.. . .394 
Sulzbacher ats. Meyer & Co.,. . .120 

Tate, In re, 482 

Terrell & Vincent v. Hurst, Mil- 
ler &Co., 588 

Thompson v. Duncan, 334 

Thornton v. Guice, 466 

Townsend v. Brooks, 308 

Vaughan & Wife ats. Mcllwain, . 489 



vm 



TABLE OF CASES. 



Vincent & Terrell v. Hurst, Mil- 
ler & Co., 588 

Vogel ats. Ecjuitable Life Assur- 
ance Society, 441 

Waganer ats. Levisohn, 412 

Waldrom v. Waldrom, 285 

Washburn v. Gardner's Adm'r,.597 

Watkins ats. Cockburn, 486 

Watson V. Mancill, 600 

Watts V. Eufaula National Bank,474 

Watts & Son v. Sayre, . .397 

Weatherly v. Med. & Surg. So- 
ciety, 567 



Werborn v. Pinney, 291 

West V. The State, 98 

White V. P^quitable Nuptial Ben- 
efit Union, 251 

Wilkinson ats. May, 543 

V. Searcy, 176 

Williamson, . . . .163 
Williamson ats. Wilkinson, . . . .163 

Winslow V. The State, 42 

Wood V. Cosby, 557 

ats. Guilmartin, 204 

Woods V. The State, 35 

Yung's Heirs ats. Englehardt, . .534 



CASES 

IN THE 

Supreme Court of Alabama, 

DECEMBER TERM, 1884. 



McDaniel v. The State. 

Indictment for Murder. 

1. Judlddl k>ioirled(fe of deadly or dcmyeroiis iround. — That a fracture 
of the skull uiay produce death, but does uot necessarily have thatefi'ect 
in every case, is matter of common knowledge. 

2. Causal relation heiireen hloir or voa ad and xnbsetfiient death. — When 
tile wound is in its nature mortal, or likely to produce death, '' the doc- 
trine is established, that it is sufficient if tiie blow caused the deatli, 
thoujrh the deceased mijiht have recovered if he had taken proper care 
of himself, or had submitted to a surgical operation, which he refused to 
do, or if the surgeon had treated the wound properly ; " and it is a corol- 
lary from this j)rinciple, that if the death resulted partly from a blow 
wrongfully given which might produce death, and partly from neglect or 
unskillful treatment, the assailant is guilty of the homicide in the de- 
gree which the attendant circumstances may assign to the act. 

o. Self-defense ; htirdeu of jiroof. — To establish the plea of self- 
defense, it is enough for the defendant to show that at the time he was, 
either really or to ordinary appearance, in imminent peril of life or limb, 
and had no other reasonable means of escape ; and though he can not 
invoke this defense when he himself provoked or encouraged the diffi- 
culty, the onus is not on him to prove this negative. 

4. Inipeach'nKj and sustaining witness. — It is not permissible to adduce 
evidence to sustain the credibility of a witness, as by showing that his 
testimony before the committing magistrate was substantially the same 
as on the trial, unless an attempt has been made to im{K'ach it. 

5. Foreman's signature, as indorsed nn indictment. — It is not a valid 
objection to an indictiient, that the name of the foreman' of the grand 
jury, as indorsed thereon, is spelled ,/. //. Karter, while in the minute- 
entries it is spelled John II. Carter. 

(). Service of copy of indictment, omitting indorsemoits. — The de- 
fendant can not object to going to trial, on the ground that a copy of the 
indictment had not I)een served on him as reijuired by an order of the 
court (Code, § 4.S72), when the only objection to the copy served is on 
account of the omission of certain indorsements on the original, showing 
the issue of writs of arrest and the names of the witnesses. 
1 



2 SUPREME COURT [De<-. Term, 

[McDaniel v. The State.] 

From the Circuit Court of Cullman. 

Tried before the lion. Leroy F. Box. 

The defendant in this case, Charles McDaniel, was indicted 
for the murder of Benjamin Anderson, " by striking him with 
an iron weight ; '' pleaded not guilty to the indictment, but 
was convicted of manslaughter in the first degree, and sen- 
tenced to the penitentiary for the term of three years and six 
months. A bill of exceptions was reserved on the trial, which 
states that the defendant, before announcing whether he was 
ready for trial, " objected to being put upon his trial, because 
a copy of the indictment had not been served on him or his 
counsel, as ordered by the court; and on this objection being 
made, it was shown to the court that a copy of the iftdictment, 
with some of the indorsements thereon, but without certain 
other indorsements thereon, was properly served, the omitted 
indorsements being as follows " — viz., the issue of several writs 
of arrest, with the dates of each, and the names and residences 
of the several witnesses. " Upon this showing, the court over- 
ruled the defendant's said objection, and required him to an- 
nounce whether he was read}' for trial ; and to this action of 
the court the defendant duly excepted. The defendant also 
moved the court, before entering on the trial, to quash the in- 
dictment, because the name of the foreman of the grand jury, 
as indorsed on said indictment, was J. H. Karter^ while the 
name of the foreman of the grand jury at that term, as shown 
by the minute-entries of the court, was John II. Carter. The 
court overruled this motion, and the defendant duly excepted." 

" On the trial, the State offered evidence tending to pnove 
that the deceased came to his death from the effects of a wound 
caused by an iron weight thrown at him by the defendant; that 
such wound was inflicted in said county of Cullman, about 
January 8th, 1881, and that the death of the deceased occurred 
on or about February 22d, 1881. As to whether the blow with 
the iron weight was the cause of the death, the evidence was 
conflicting throughout. The skull of the deceased was pro- 
duced, showing a fracture of the frontal bone, over and back 
of the left eye, between one and two inches long, and about a 
half inch wide at the widest point. This fracture was com- 
plete, leaving an opening in the frontal bone about one and a 
half inches long, by half an inch _wide. When the skull was 
exhumed, a few days before the trial, the piece of bone from 
the opening was in place, but slightly depressed, or fallen in at 
the upj)er part. At the base of the fracture in the frontal 
bone thei'e was an inward depression in the parietal bone, about 
a quarter of an inch in depth, and half an inch wide. When 
the blow was struck, the deceased, without saying a word, 
walked out of the saloon, in search of a physician, had the 
Vor-. Lxxvi. 



1884.] OF ALABAMA. 3 

[McDaniel v. The State.] 

wound examined by the pliysieian, and then went home, a dis- 
tance of two or throe miles, walking a part of the way, and 
riding a part. On i-eaching home, requesting the friendt^ who 
were with him to go into the house, he cut and gathered up 
some wood, carried it into the house, ate his supper, and laid 
down after awhile. Between this time and his death, which 
occurred five or six weeks afterwards, he was about in the 
woods, cutting wood, and was at the defendant's gin, driving 
his ox-team ; and during this period three physicians were 
called in, or attended him. One of these physicians. Dr. Geo. 
A. Parker, since deceased, whose deposition was taken at the 
instance of the defendant, and read on the trial, testified that 
he first examined the wound, and afterwards visited the de- 
ceased, and that he did not believe said wound caused the 
deatii. Another one. Dr. Burnam, who visited the deceased 
with Dr. Parker and at his instance, and who was examined as 
a witness for the State, testified that he saw the deceased once, 
and that he did not at the time think the wound was calculated 
to produce death. The third physician, Dr. Drennen, exam- 
ined as a witness for the State, testified that he was called in to 
see the deceased on the 2d February, 1881 ; that he probed the 
wound with a silver probe, raised the depressed bone, and gave 
the deceased some medicine; that he sent him medicine on the 
5th February, and visited him on the 6th, when he was much 
better; and on hearing from him on the 9th, discharged him 
as well, and was not called in afterwards. Dr. Drennen testi- 
fied, that he did not at the time think the wound was calculated 
to produce death, and he gave it as his opinion that the wound 
was not sufficient to produce death ; and it was shown that Dr. 
Drennen was the last physician who was called in or attended 
the deceased. The testimony of some of the family and 
friends of the deceased, who were with him, or visited him at 
intervals, before and until liis death, tended to sho\v that the 
deceased, after the infliction of the wound, and until his death, 
at times was, or appeared to be, in a stupor, and complained of 
his head, and of nothing else. The State also examined several 
physicians as experts, as to whether the wound was calculated 
to produce death ; and this testimony tended to show, in part 
that it was, and in part that it was not, calculated to produce 
death.'' 

"As to the circumstances of the difficulty, the evidence 
tended to show that it occurred in a saloon, between sunset and 
dark, about January 8th, 1881 ; that the deceased was seen, be- 
tween twelve and one o'clock that day, near the saloon, stand- 
ing on the steps of McEntepe's store, when he slapped his 
hands on his thighs, and said that he was the best man on the 
ground, and that if McDaniel, the defendant, came on the 



4 SUPEEME COURT [Dec. Term, 

[McDaniel v. The State.] 

ground, he would stick his knife, wliich he then had open in 
his hand, in his heart. The defendant came to the saloon late 
in the evening, the deceased being there at the time. They 
got to quarrelling in the saloon, about railroad land ; but just 
how, or by whom, the quarrel was commenced, was not clearly 
shown, some of the evidence tending to show that it was com- 
menced or encouraged by the defendant, and some tending to 
show that it was commenced by the deceased. After the 
quarrel commenced, the parties went into a back room, and 
were quarrelling in there, when the keeper of the saloon went 
in and ordered them out, and they then went into the saloon. 
As to which of the parties went into the back room first, and 
which returned first into the saloon, the evidence was conflict- 
ing. After the quarrel commenced, the defendant was seen to 
take a weight from the counter, and put it into his pocket; he 
had a large weight in his hand, which he laid down, and picked 
up a smaller one and put it in his pocket. An admission as to the 
testimony of an absent witness was read to the jury at the instance 
of the defendant, tending to show that, while the defendant was 
in the back room, the deceased in the saloon, having an open knife 
in his hand, said that, if the defendant came back into the 
saloon, he would put that knife into his heart; and that this 
was said five or ten minutes before the blow was given. At 
the time the blow was given, the deceased was standing with 
his back to the counter in the saloon, and the defendant was 
six or eight feet away, near the door into the back room. As 
to the exact position of the deceased at the time, and as to the 
words used, the evidence was conflicting; but that there was 
an open knife in the right liand of the deceased was testified 
to by all. The testimony, in part, tended to prove tliat the 
deceased, while leaning against the corner, and having the 
open knife in his right hand, holding it up, and marking on 
the blade with one of his fingers, said to the defendant, ' You 
need this muck of this steel ;- or, ' You need^ and vnll get this 
much of this steel;'' or, ' You need this much of this steely 
and 1 will (jive it to yon!' Some of the testimony tended to 
show that, when this was said, or (as some other testimony 
tended to show) when it was repeated, the defendant took his 
hand from his pocket, threw [the iron weight], or made the 
throwing motion, and the head of the deceased fell back, when 
the lick was heard. 

"The defendant had the benefit of the testimony of one 
McBrear, who was present at the diflicnlty, and was examined 
as a witness for the State on the defendant's preliminary exam- 
ination, but had since died. The testimony of said McBrear, 
as testified to by (reo. II. Parker, tended to show that the 
quarrel was commenced by the deceased, and was followed uj> 

Vol. hxxvi. 



1884] OF ALABAMA. 5 

[McDaniel v. The State.] 

by him ; that while standing at the counter, he said to the de- 
fendant, ' You need this much of this steely and^ with an oath, 
' III give it to you^ and made a motion with tlie open knife 
towards the defendant, who then threw. On cross-examination 
of said Parker, the counsel for the State asked him, if he knew 
what ])r. Dreimen testified to on the preliminary trial; to 
which question the defendant objected, and duly excepted to 
the overruling of his objection. Parker answered, that he did 
recollect; and being then asked what it was, his answer tended 
to show that the testimony of said Drennen on said preliminary 
trial was substantially tlie same as on this trial.'" 

"On the foregoing testimony, in substance all that was 
offered on the trial, so far as material to the points presented 
b}' this bill of exceptions, the court charged the jury in 
writing, at the instance of the State," among other things, as 
follows: 2. "To make out a case of justifiable self-defense, 
the evidence nmst show that the difficulty was not provoked or 
encouraged by the defendants." 3. " To make out a case of 
justifiable self-defense, the evidence must show that the diffi- 
culty was not provoked or encouraged by the defendant ; that 
he M'as at the time, or appeared to be, so menaced as to create 
a reasonable apprehension of danger to his life, or of grievous 
bodily harm, and that there was no reasonable mode of escape 
from such impending peril." 

The defendant duly excepted to each of these charges, and 
then recjuested the following charges, which were in writing : 
(1.) "If the jury believe, from the evidence, that the defendant 
acted in self-defense, and under an impending danger of death, 
or of great bodily harm, from the hands of the deceased, then 
the defendant is not guilty of any offense." (2.) "If the jury 
believe, from the evidence, that improper treatment was the 
immediate cause of the death of the deceased, then they must 
find the defendant not guilty." (3.) "If the jury have, from 
the evidence, a reasonable doubt of the character of the instru- 
ment with which the wound received by the deceased was in- 
flicted, then they must find the defendant not guilty." (4.) " In 
order for the killing of a human being to be murder, it must 
be imllful — which means, on purpose to take the life of the 
one killed ; deliberate — which means, on reflection ; inalicious 
— which means, wickedness or depravity of heart (not enmity) 
towards a single individual, or towards mankind in general; 
and premeditated — which means, determined on beforehand." 
(5.) " If the jury can not find from the evidence what caused 
the death of the deceased, they must find the defendant not 
guilty." (6.) "If the jury, after coTisidering all the evidence, 
are in doubt, even the slightest doubt, as to what in fact caused 
the death of the deceased, thev must find the defendant not 



6 SUPREME COUET [Dec. Term, 

[McDaniel v. The State.] 

guilty as cliarged in the indictment." The court refused each 
of these charges, and the defendant duly reserved exceptions- 
to their refusal. 

Geo. H. Parkkr, and Hamili. & Lusk, for appellant, cited 
the following authorities: 1. As to the insufficiency of the 
copy of indictment served on the defendant, Code, ^ 4872; 
Clark's Manual, Jj 2363; Driskell v. The State, 45 Ala. 21; 
Ezzell ik Walkers case, 54 Ala. 165; Bain v. State, 70 Ala. 
4. (2.) As to charges given and refused, to which exceptions 
were reserved: Taylor v. The State, 48 Ala. 180; Miichell 
V. The State, 60 Ala. 26 ; Cross v. The State, 63 Ala. 40 ; 
Flanagan, v. The State, 46 Ala. 703; Oliver v. The State, 17 
Ala. 587 ; Harrison v. The State, 24 Ala. 67 ; Hill v. The 
State, 73 Ala. 366 ; Walker v. The State, 73 Ala. 171 ; Clark's 
Manual, p. 78, § 490; Clark's Crim. Law, §^ 384, 430; 17 
Iowa, 138. 

T. N. McClellan, Attornev-General. contra, cited Huhhard 
V. The State, 72 Ala. 167; Ezzell v. The State, 54 Ala. 165; 
Undervjood v. The State, 12 Ala. 220 ; Haley v. The State^ 
63 Ala. S3. 

STONE, C. J. — One of the mooted questions in the court 
below was, whether the blow iniiicted by the defendant caused 
the death. On this question, the testimony — ^notably that of 
the experts — was in conflict. There seems to have been no 
dispute of the facts, that the accused struck the deceased in 
the forehead with an iron weight, causing a sei'ious wound, and 
that when the exhumed skull was exhibited on the trial, it was 
found seriously fractured, at or about the part where the blow 
took effect. The contested inquiry was, the causal connection 
between the blow and the death, wliicli occurred some weeks 
afterwards. We feel we are within the domain of common 
knowledge, when we affirm that a fracture of the skull, press- 
ing it upon the brain, is a dangerous wound, which may cause 
death, but which does not necessarily, and in all cases, produce 
that result. Prompt and skillful surgical treatment may, in 
some cases, relieve and save the patient. Nor can it be affii-med 
that, in every such case, death will ensue, even without treat- 
ment. Still it is a dangerous wound, that may produce death. 

When death does not ensue closely upon the infliction of 
the blow, which it is alleged causes it, many contentions have 
arisen, and continue to arise, as to the rule of causal connection 
to be observed in such cases. In some of the phases of this 
question, certain rules have been declared, which seem to I'est 
on impregnable grounds. In 2 Bish. Cr. Law, 7th ed., J$ 638, 

Vol.. LXXVl. 



1884.] OF ALABAMA. 7 

[McDjJiiiel V. The State.] 

it is said : " The doctrine is established, that if tlie blow cansed 
the death, it is sufficient, thon<:;ii the individual might have re- 
covered had he used proper care of himself, or submitted to a 
surgical operation, to which he refused submission, or had the 
surgeon treated the wound properly." This we understand to 
be the rule where the wound is in its nature mortal, or likely 
to produce death. So, we think, it results as a coi-ollary, if the 
death result in part from a blow wrongfully given, which may 
produce death, and partly from neglect, or unskillful treatment, 
then the assailant is guilty of the homicide, in the degree the 
attendant circumstances assign to the act. — McAllister v. The 
State, IT Ala. 434 ; Parsons v. The State, 21 Ala. 300. But, 
where the wound is not of itself mortal, and the party dies in 
consequence solely of the improper treatment, not at all of the 
wound, the result is otherwise. — Parsons v. State, supra; 
2 Bish. Cr. Law, § 639. In 1 Whar. Cr. Law, 8th ed., §§ 157, 
158, the rule is stated thus : " The true test is, whether the 
deceased's death followed as an ordinary and natural result from 
the conduct of the defendant. If so, it is no defense that the 
deceased, under another form of treatment, might have recov- 
ered. . . But, if the result is caused by the malpractice of 
the pliysician, the wound not being in itself mortal, and the 
physician not acting in concert witn the defendant, then the 
defendant is not responsible ; for the wound, though a condi- 
tion of the killing, is not its juridical cause." 

The second and third charges given at the instance of the 
State are faulty. They make it a condition of acquittal, under 
the plea of self-defense, that " the evidence must show that 
the difficulty was not provoked or encouraged by the de- 
fendant.'" This was a misplacing of the burden of proof. 
Enough for defendant, if he showed that he was, really, or to 
ordinary appearance, in imminent peril of life or limb, from 
which he had no other reasonable means of escape. To this 
defense it would have been a full answer, if the testimony had 
shown the defendant provoked or encouraged the difficulty. 
The law, however, does not presume such provocation or en- 
couragement, and does not require disproof of it, unless there 
be testimony tending to prove its existence. P^ven then, it can 
not be affirmed, as matter of law, that it must be disproved. 
The rule is, that its existence, when shown, is an answer to the 
plea of self-defense, but its existence is not presumed, so as to 
impose on the defendant the burden of its disproof. — DeAr- 
man v. The State, 71 Ala. 351 ; Storey v. The State, Ih. 329. 

Of the charges requested by defendant, the lirst was properly 
refused, because it ignored all inquiry whether defendant con- 
tributed to the bringing on of the difficulty. The second was 
properly refused, because it demanded an acquittal, if there 



8 SUPREME COURT [Dec. Term, 

[Jones V. The State.] 

was unskillful treatment, the immediate cause of death, not- 
withstanding the wonnd may have been in its nature mortal, 
and notwithstanding it may have contributed to the death. 
Boioles V. The State., 58 Ala. 835. The third charge was ab- 
stract and misleading, having no testimony to rest on. The 
fourth charge postulates murder in the first degree, but not 
murder in the second degree. It was immaterial, however, as 
the defendant was convicted of manslaughter only, and can 
never again be tried for murder under this charge. The fifth 
charge is misleading, in view of the testimony in this cause; 
and the sixth charge does not assert a correct principle of law. 

The record shows that the witness Parker was allowed, 
against the objection of defendant, to prove that Dr. Drenhen's 
testimony before the committing magistrate, was substantially 
the same as that given on the final trial. If the record showed 
that, in a proper way, attempt had been made to impeach Dr. 
Drennen, by showing his testimony was materially variant from 
that given on the former trial, then Parker's testimony would 
have been admissible. It is not shown in this record that any 
such attempt had been made. It is not permissible to make 
proof sustaining the credibility of one's own witness, until at- 
tempt has been made to impeach it, in some of the forms 
known to the law. 

There is nothing in the objection to the indictment, nor to 
the copy served on defendant. 

Reversed and remanded. Let the defendant remain in cus- 
tody, until discharged by due course of law. 



Jones V, The State. 

Indictment for Murder. 

1. Threats by defewJant ; admhsUnUtu of. — In a prosecution for mur- 
der, the defendant's threat, or declaration — " Damn him, Tain going to kill 
him" — not naming any particular person, is admissible as evidence 
against liim, when it is shown that it was made on the day of the killing, 
and that a few hours previouslj- he had had an altercation with the de- 
ceased ; and it is for the jury to determine whether the threat had refer- 
ence to the deceased. 

2. Impeaching loitnesn by proof of difficultg irith party. — The testimony 
of a witness may be discredited, by showing that he has expressed or 
evinced a feeling of partiality or bias in favor of the party by whom lie is 
Introduced, or of animosity towards his adversary; and this may be 
shown, as to a witness for the defense in a prosecution for murder, by 
proof of an altercation between him and the deceased on the day of the 
killing, and the character of that difliculty as serious or trivial ; butonly 

Vol. lxxvi. 



1884.] OF ALABAMA. 9 

[Jones V. The State.] 

the fact of the difficulty is admissible evidence, and the merits or par- 
ticulars thereof can not he inquired into. 

3. Proof of charorter. — Whenever character is i)roperly in issue, it 
must be proved by general reputation, and evidence of particular acts or 
conduct is not admissible. 

4. SeJf-drfen^e. — When a nnm is attacked in his own dwelling, he is 
not required to retreat from it, in order to invoke the benefit of tlie doc- 
trine of self-defense, and his place of business is deemed, />rf) Itac vice, his 
dwelling; an<l this principle applies as between partners, joint tenants, 
and tenants in common. 

5. Larcenif or trt'xjxiKK, an betivceii partnerx, (ind as I'.rcnue for kilUnij. 
The defendant and the deceased being partners, or joint owners of a bar- 
room, its contents and proceeds, the taking of money from the drawer ))y 
the deceased would be neither a larceny nor a trespass, nor, of itself, 
would it reduce the killing from nmrder to manslaughter. 

6. Self-defoD^e. — To establish the plea of self-defense in a case of homi- 
cide, the defendant must have entertained at the time an honest belief in 
the existence of a present necessitj' on his part to kill, in order to save 
his own life, or to ])revent the infliction of grievous bodily harm ; and the 
circumstances must have been such as to impress the mind of a reason- 
able man, under the same state of facts, with a belief of such imminent 
peril and urgent necessity. 

From the Circuit Court of Ttussell. 

Tried before the ITon. Jas. E. Cohb. 

The defendant in this case, Thomas I). Jones, was indicted 
for the murder of Ivey Doles, by shooting him with a pistol ; 
was tried on issue joined on the plea of not guilty, convicted 
of murder in the second degree, and sentenced to the peniten- 
tiary for the term of eighteen years. A bill of exceptions re- 
served on the trial purports to set out "substantially all the 
evidence bearing on the charges refused," and shows these 
facts : The defendant and the deceased were brothers-in-law, 
having married sisters, and they were joint owners and pro- 
prietors of a bar-room in the town of Scale, in said county ; 
"of which," it is stated, " the deceased had immediate charge 
at the time of the killing, but the precise interest therein of 
each was not proved." The killing occurred in the bar-room, 
about dark, on the evening of April 10th, 1883 ; the only per- 
sons present in the room at the time, besides the parties them- 
selves, being H. B. Ferrell, thesheriff of the county, and George 
Ferrell, his brother, who was also his deputy ; and said H. B. 
and George Ferrell were examined as witnesses on the part of 
the defendant. Several other persons were at the time sitting 
on a bench at the door of the bar-room, who were prevented 
by a screen from seeing what occurred inside of the room. One 
of these persons, Miller by name, who was introduced as a wit- 
ness on the part of the prosecution, testified that he went into 
the bar-room, " about an hour and a half by sun in the even- 
ing of that day," and found the deceased behind the counter, 
and, on going into a back room, where a pool-table was kept, 
they found the defendant lying asleep on a bench ; that II. B. 



10 SUPREME COURT [Dec. Term, 

[Jones V. The State.] 

Ferrell, the sheriff, came into tlie room a few minutes after- 
wards, and laid down on the counter to sleep, the deceased giv- 
ing him something to put under his head ; that the defendant 
fell off the bench while witness and the deceased were playing 
pool, but was not awakened by the fall, and was put up on the 
bench again by them ; that, while lifting him, they discovered 
a pistol in his pocket, which the deceased took from him, and 
put it somewhere behind the counter ; that he (witness) walked 
out of the room when the game of pool was finished, and sat 
down on the bench outside of the dooi- ; tliat he " heard loud 
talking in the bar-room, shortly before the shooting, but could 
not understand what was said, the report of the pistol being the 
first noise that attracted his attention." One Hammond, another 
one of the persons sitting on the bench, testified that he " heard 
loud talking in the bar-room, and saw defendant walking back- 
wards and forwards in front of the counter; did not know who 
was talking until he heard the deceased say, ' You d — d son of 
a h — , you are the cause of all this dispute ;' heard defendant 
say, ' Do you call me a d — dson of a h — f ; heard talking still, 
and heard ' scrimmage,' near to, behind, and against the counter, 
as if some one was ' grabbing the counter,' and at the same time 
heard the shooting." When these witnesses entered the room, 
the sheriff' was lifting up the body of the deceased, who had 
fallen behind the counter, and was dead, being shot in tlie fore- 
head above the left eye. His face was blackened with powder, 
"from the end of the nose downward, but not upward." No 
weapon was found on his body "except an ordinary pocket- 
knife, which was found protruding half way out of his right 
pocket, and was shut.'" His hat was lying on the floor near 
his body, and was perforated with a bullet-hole corresponding 
with tliat in his forehead ; and two silver dollars were found in 
or near his hat, and a iialf-dollar on the floor. The bill of ex- 
ceptions states that " the powder-burns, the hat and the silver 
coins were introduced by the State, to show the attitude of the 
deceased at the time he was shot, and to support the State's 
theory, that the deceased was standing near the money-drawer 
when he was shot, looking down into it, and taking money 
therefrom." 

The State proved, also, " that the defendant applied to one 
Collier, about nine or ten o'clock in the morning on the day of 
the killing, for the loan of a pistol, but did not get it ; and that 
he tried to get a gun at Johnson's store, during the evening of 
that day, but did not get one. The State also introduced Reese 
and Murrell, who testified that, about four o'clock in the after- 
noon of the day of the killing, they saw the defendant, H. B. 
Ferrell aiui (ieorge Ferrell in Johnson's bar-room ; that the de- 
fendant aj)peared to be drunk, and Johnson took him by the 
Vol. i.xxvi. 



1884.] OF ALABAMA. 11 

[JoncH V. The State.] 

arm, and led him into the back room ; tliat, aftei- they l)ad en- 
tered the back room, they (witnesses) heard defendant say, 
' Damn him^ I am going to kill him,'' but he did not mention 
any name." The defendant objected to the admission of this 
evidence, and duly excepted to the overruling of his objection. 
The bill of exceptions states in this connection, " There was no 
evidence showing, or tending to show, any difficulty between 
the defendant and any one except tiie deceased." 

"' The State introduced one A\ illiam Starke as a witness, who 
testified that, as he was passing said bar-room on his way from 
supper, Jones (defendant) called him in, and asked him the 
question, ''Are you my friend f to which he made no reply ; 
that Jones, when witness went in, was standing in front of the 
bar counter, while Doles (deceased) was behind the counter, 
near the water-tank on the counter, and Sheriff Ferrell was 
also behind the counter, near Doles ; that said Ferrell and 
Doles were talking about a lawsuit, and witness understood 
Ferrell to say, ' You are a G — d — rascal /' that he (witness) 
then went out, and in a very few minutes heard a pistol fire. 
To this conversation between said Ferrell and Doles, which is 
a part of the conversation afterwards testified to by said Fer- 
rell, a witness for defendant, the defendant excepted, and moved 
the court to exclude it from the jury ; but the court permitted 
the conversation to go to the jury, and the defendant excepted." 
Another witness for the State testified that, " as l)e passed the 
bar-room, about ten or fifteen minutes before the shooting, he 
heard said Ferrell and the deceased quarrelling about some rent 
money ; that Doles seemed to be mad and excited, and Ferrell 
cool and in good nature." No exception was reserved to any 
part of this testimony. "The State proved, also, that the de- 
fendant could have protected himself from danger, by stepping 
behind the screan, or into the pool-room ; and that, if he was 
standing midway between them, about two steps in the dii'ec- 
tion of either would have placed him under cover, and out of 
daiiirer, without leaving the house." 

Sheriff Ferrell, being introduced as a witness for the defense, 
testified that the pistol used by defendant belonged to him, and 
was lent by him, about ten o'clock in the morning of that day, to 
defendant, who said he wanted to go to Society Hill ; that the 
defendant also asked him for a arun some time during the after- 
noon, "as he wanted to go out to Cooksey's pond a fishing, and 
witness told him the gun was at Johnson's bar." As to the 
occurrences in the bar-room just before and at the time of the 
shooting, he testified, that he was awakened about dark by his 
brother (reorge, who told him it was time to go to supper ; 
that he then awakened the defendant, and asked for his pistol ; 
that the defendant felt abo\it his person for the pistol, and 



12 SUPREME COURT [Dec. Term, 

[Jones V. The State.] 

asked Doles if he had taken it ; and that Doles replied, he did 
not know anything about it. " About this time," as the bill of 
exceptions then continues, " Doles told witness he wanted to see 
him about a matter before he left ; and witness then left Jones, 
and went to where Doles was standing behind the counter, near 
the water-tank. Doles then said, that he had applied to the 
probate judge for some money on an order of the Commission- 
ers Court, and was informed by him that witness had instructed 
him not to pay the money to him (Doles), but to keep it on the 
rent of a house. Witness explained, that he was security for 
Doles for the rent of the house in which Doles and Jones 
lived, and had told the probate judge, if he could do so con- 
sistently, to hold the money due Doles on the order for rent. 
Doles said, ' All right, Ben^ Witness then said to Doles, as 
long as they were explaining, he had something to say in a clever 
way ; that he had heard Doles had employed Col. S. [an attor- 
ney] to sue him for a settlement of their accounts while Doles 
was acting as deputy-sheriff under witness. Doles replied, 
' Wlioever says that, tells a damned lie.' Witness then told 
Doles, that he knew it could not be so, as he (Doles) knew that 
he owed witness at least $215 on a settlement ; and witness 
might have said, ' Any body who would sue me under the eir- 
cmnstances^ would act the damned rascal^ (This is the conver- 
sation testified to by said Starke, as stated above.) Just about 
this time. Doles turned to Jones, who was standing or walking 
in front of the counter, and said, ' You are a damned thief ;'' 
and then stepped up near the money-drawer, and took the pistol 
out from under a muslin cover that hung over the lower shelf, 
and, placing the muzzle near his forehead, said, ' Here, take the 
pistol, and shoot ■tne ; ' and then shoved the pistol across the 
counter, in the direction of Jones, butt end foremost. Jones 
caught the pistol, and held it in his hand, with his arm hanging 
down by his side. Doles then returned to where witness was 
standing, and they passed a few words in a friendly way, when 
Doles, passing witness, went around through the pool-room, 
into the bar-room, in front of the counter, in a threatening 
manner, and said to Jones, ' G — d — you, I can clean you^ 
Jones stepped back one or two steps, but made no motion to 
shoot or strike Doles. Witness then took hold of Doles, and 
told him he ought not to strike Jones, as they were brothers- 
in-law ; and witness and Doles then went back through the 
pool-room, behind the counter, near the water-tank. As they 
were going back, Doles asked witness to take a drink, which he 
declined, but said he would take a cigar in stead. They went 
behind the counter together, when Doles took down a box of 
cigars, and handed them to witness, who took one, and was 
putting it in his vest pocket, sayihg he would not smoke until 
Vol. lxxvi. 



1884.] OF ALABAMA. 13 

[Jonea v. The State.] 

after supper, when Doles said to Jones, ' Vou d — s — of a 
1) — , riljix you ; " and at the same time reached over the coun- 
ter, with his left arm extended, his hand open, slightly shaking 
his hand ; his body leaning forward on the counter, and throw- 
ing his right hand to his right hip pocket. Witness saw some- 
thing shiny in his hand, which he took to be a pistol or knife. 
Just as Doles was leaning over the counter as described, Jones 
tired, when Doles threw up his hands and fell." (leorge Fer- 
rell, the brother of II. B. Ferrell, testified as to these matters 
substantially as above stated. 

Several witnesses for the defendant testified to the character 
of the deceased as a turbulent and dangerous man ; though 
some of them " gave him that character only when drinking, 
and several witnesses for the State testified that he was ordina- 
rily quiet and peaceable. Several witnesses for defendant 
proved his good character. Defendant offered to prove par- 
ticulars in reference to his character ; to which the State ob- 
jected, and the court sustained the objection ; to which defend- 
ant excepted." 

The defendant requested, in writing, fifteen charges, of which 
the following were refused, exceptions being duly reserved to 
their refusal : 

" 1. Whilst the law requires, under some circumstimces, that 
a person assailed shall avail himself of all reasonable means of 
escape from the danger, before he is excused for taking the life 
of his assailant ; yet it is never required that he shall leave l)is 
home, or his place of business, to escape such danger. 

" 2. If the jury believe that the defendant, at the time of the 
killing, was in the building where he was doing business, and 
which was occupied l»y him as his place of business; and that 
he was there assailed by the deceased, under such circumstances 
as to reasonably impress him with the belief that his assailant 
intended to inflict on hitn great bodily harm, and that there 
was imminent danger that such injury would be inflicted upon 
him ; then the defendant had the riglit to repel such assault by 
shooting the deceased, and he must be acquitted, provided he 
did nothing to provoke the assault. 

" 3. If the jury believe, from the evidence, that the defend- 
ant and the deceased were in close proximity to each other at 
the time of the killing; and that the defendant did nothing to 
bring on a difficulty, or to })rovoke an assault on himself by the 
deceased ; and that the deceased assumed a hostile attitude, and 
placed his hand upon, or in the direction of his pistol pocket, 
in such a manner as to indicate to a reasonable mind that he 
intended to draw and fire ; then the defendant had a right to 
fire first, whether Doles was armed or not. 

"4. If the jury believe, from the evidence, that the defend 



14 SUPREME COURT [Dec. Term, 

[Jones V. The State.] 

ant had no formed design to take the life of the deceased, and 
had no malice towards the deceased, but shot him on sudden 
impulse and passion, when he saw the deceased taking the 
money, then the defendant is not guilty of murder, though he 
may be guilty of manslaughter. 

" 5. In considering the guilt or innocence of the defendant, 
the jury can not consider the condition of the finances of the 
county, in report of the grand jury at the present term of the 
court, or the actions of the juries in the trial of other causes." 

W. F. Foster, for the appellant. — (1.) There was no connec- 
tion whatever between the declaration, or threat, said to have 
been made by the defendant at Johnson's bar-room, and the 
subsequent difficulty with Doles ; and the evidence in relation 
to it ought to have been excluded. — Rogers v. The State, 62 
Ala. 170 ; Bedd v. The State, 68 Ala. 492. (2.) Nor was 
there any connection between the conversation between Doles 
and Ferrell and the subsequent difficulty between Doles and 
the defendant ; and although the defendant afterwards ex- 
amined F'errell as to the particulars of this conversation, the 
error in the admission of the evidence was not thereby cured. 
Mitchell V. The State, 60 Ala. 26 ; Rogers v. The State, 62 
Ala. 170 ; Redd v. The State, 68 Ala. 492. (3.) The doctrine 
of self-defense, as applicable to the facts of this case, is cor- 
rectly asserted in the charges asked and refused. — Roberts 
V. .the State, 68 Ala. 156; DeArman v. The State, 71 Ala. 
351. (4.) The correctness of the 4th charge asked and refused 
is sustained by 2 Bish. Crim. Law, 706, notes, and authorities 
there cited. (5.) The principle asserted in the 5th charge can 
not be questioned. The jury ought always to be cautioned 
against extraneous inHuenees. The charge can not be consid- 
ered abstract, since the matters referred to were facts which 
occurred in the presence of the court. 

T. X. McClkli.an, Attorney-General, for the State, cited 
the following cases : (1.) As to the admissibility of the evidence 
objected to : Ford v. The State, 71 Ala. 385 ; Ross v. The 
State, 62 Ala. 224. (2.) As to the charges asked and refused : 
Carroll v. The State, 25 Ala. 35 ; Storey v. The State, 71 Ala. 
337 ; Pond v. The State, 8 Mich. 150 ; I Hale's P. C. 482-3 ; 
Whart. Ilom. 541 ; Wills v. The State, 73* Ala. 362 ; Bain v. 
The State, 70 Ala. 4; Oliver v. The State. 17 Ala. 587 ; Judge 
V. The State, 58 Ala. 406 ; Nutt v. The State, 63 Ala. 180. 

SOMERVILLE, J.— The threat made by the defendant 
against some one not designated or identified by him — in which 
he declared, in general terms, " Damn him, I am going to kill 



1884.] OF ALABAMA. 15 

[Jones V. The State. J 

him" — was clearly admissible in evidence, under the authority 
of Ford V. The State, 71 Ala. 885, 80(1. * This tiireat was made 
but a few hours before the killing of the deceased by defend- 
ant, and after the parties had engaged in a previous altercation 
on the same day. It was a matter of mere inference for the 
jury, whether the threat had reference to the deceased or to 
some other person. 

It was competent to prove that the sheriff, Ferrell, had en- 
gaged in an altercation with Doles, the deceased, a short time 
prior to the killing, for the purpose of impeaching Ferrell's tes- 
timony, he being a witness in the cause for the defendant. The 
order of the introduction of this evidence was immaterial. The 
fact of such difficulty could be shown, and the gravity of its na- 
ture, or the contrary ; but its merits, or details, could not be 
proved, nor any particulars tending to show who was in fault. 
The purpose is to prove such a bad state of feeling towards the 
deceased, as would tend to bias the testimony of the witness. 
2ic Anally v. The State, 74 Ala. 9. It is a common mode of 
discrediting a witness for the prosecution, to ask him, on cross- 
examination, whether he has not expressed feelings of animosity 
or revenge towards the prisoner; and so, of a witness for the 
prisoner, whether he has not previously evinced a feeling of 
partiality or friendliness for him. —1 Greenl. Ev. (14th Ed.) 
<J 450, note h ; 2 Best Ev. ^ 644. There is no reason why the 
fact indicating such bias may not be as well proved in any 
other legal way, because it is the fact, and not its mode of 
proof, which goes to the root of the witness' credibility. 
Whart. Cr. Ev. §§ 485, 477 ; 1 Whart. Ev. §§ 544, 561. * The 
State should have confined the testimony of the witness Starke 
to the fact and time of Ferrell's altercation with the deceased, 
and the language of denunciation used which indicated the na- 
ture of his animosity, and disclosed the strength and degree of 
his prejudices in the main transaction under process of judicial 
investigation. 

While evidence is always admissible to show, generally, 
whether the character of a person is good or bad — when the 
question of character is properly put in issue — it is not compe- 
tent to establish one's reputation or character by mtroducing 
evidence of particular acts, or of speciiied conduct on his part. 
The testimony must be confined to reputation, which has been 
justly said to be " the only mode in which charactei- can be 
exhibited to us."— Whart. Cr. Ev. $^§ 259-60 ; 1 Greenl. Ev. § 55. 
This rule does not conflict with the principle settled in DeAi'- 
man v. The State, 71 i\la. 352, where it was held that a wit- 
ness, who had testified on direct examination to the general 
good character of a defendant, could, on cross-examination, be 
asked whether he had not heard of certain enumerated acts of 



16 SUPREME COURT [Dec. Term, 

[Jones V. The State.] 

defendant which tended to sliow that his character was not 
good. 

It is an admitted doctrine of our criminal jurisprudence, that 
when a person is attacked in his own house, he is not required 
to retreat further. The reason of the rule is said to be, that the 
law regards a man's house as his castle, or, as was anciently 
said, his tutissiimtm refuyium^ and having retired thus far, he is 
not compelled to yield further to his assailing antagonist. — 1 
Hale's P. C. 486 ; Storey v. The State, 71 Ala. 385 ; Carroll v. 
The State, 23 Ala. 28 ; State v. Patterson, 12 Amer. Rep. 212, 
NOTE ; State v. Harinan, 78 N. C. 515. When he has reached 
this refuge, he may stand at bay, and " may turn on and kill 
his assailant, if this be apparently necessary to save his own 
life ; nor is he bound to escape from his house, in order to 
avoid his assailant." An assailed person, as said by Mr. Whar- 
ton, " is not bound to retreat out of his house to avoid violence, 
even though a retreat may be safely made." — Whart. on Homi- 
cide,' § 541. This is adnjitted to be the settled rule, as between 
one who is the exclusive owner of the house, and an aggressor 
who has no right of entrance ; but its application is denied, as 
between joint owners or possessors, or tenants in common witli 
equal rights of possession. We have found no authority for 
this distinction, and we can not perceive any solid basis of rea- 
son by which it can be supported. Why, it may be inquired, 
should one retreat from his own house, when assailed by a part- 
ner or co-tenant, any more than when assailed by a stranger 
who is lawfully upon the premises '. Whither shall he flee, and 
how far, and when may he l)e permitted to return '. He has a 
lawful right to be and remain thei'e, and the legal nature and 
value of this right is not abrogated by its enjoyment in connec- 
tion with another. The law only exacts of each that he shall 
enjoy his property and possession so as not to injure the other. 
It is our opinion that the doctrine of retreat, or of declining 
combat by I'etreat, has no application to cases of this character, 
and that the I'ight of self-defense may be perfect without it, 
where one partner or co-tenant is assailed by another, each be- 
ing equally entitled to possession of the house or premises where 
the attack is n)ade. 

Nor, in our judgment, is there any doubt about the fact that 
a man's place of business must be regarded, pro hac viee, his 
dwelling ; that he has the same right to defend it against intru- 
sion, that he has to defend his dwelling ; and that he is no more 
under the necessity of retreating from the one than the other 
when he is unlawfully or feloniously assailed, being lawfully in 
its occupancy. — Morgan v. Durfee, 69 Misso. 46J). 

The flrst and second charges requested by the defendant 



1884.] OF ALABAMA. 17 

[Jones V. The State.] 

should, in view of tliis principle, have been given, and their 
refusal was error. 

The fourth charge requested by the defendant was errone- 
ous, in assuming that the taking of the money by the deceased 
was a provocation sufficient to extenuate the killing to man- 
slaughter. The deceased had the interest of a partner in the 
bar-room and its proceeds, — certainly of a tenant in common, — 
being in possession, and with e(|ual rights as against the de- 
fendant. He committed no larceny^or even trespass, in taking 
the money ; and even had this been the case, there would have 
been no provocation adequate to reduce the homicide from 
murder to manslaughter, provided the other facts of the case 
were sufficient to constitute the act of killing murder on the 
part of the prisoner. — Storey''s Case, supra ; 1 Bish. Or. L. 
(7th Ed.) §§ 849, et seq. ; Clark's Man. Cr. L. §§ 435, et seq. 

The apparent necessity which will excuse the taking of hu- 
man life under the doctrine of self-defense, in cases of homi- 
cide, involves two considerations : 1st, the defendant himself 
must have entertained an honest belief in the existence of such 
necessity ; and, 2d, the circumstances surrounding him must have 
been such as to impress a reasonable man, under the same state 
of facts, with the belief of his imminent peril, and of the exist- 
ence of an urgent necessity to take the life of his assailant, as 
the only apparent alternative of saving his own life, or else of 
preventing the infliction of grievous bodily harm. — Storey v. 
The State, 71 Ala. 337, and cases cited ; Whart. on Hom. §§ 
617-520. The third cliarge requested by the defendant was 
properly refused, because it entirely ignored all consideration 
of the defendant's honest belief in the existence of a necessity 
which excused the commission of the alleged homicide. — Allen 
V. The State, 60 Ala. 19. 

We see no error in the refusal of the last charge requested 
by defendant, and numbered five. It was abstract, being en- 
tirely unsupported by the evidence, and otherwise objectionable. 

For the error of the court in refusing to give the first and 
second charges requested, the judgment of conviction is re- 
versed, and the cause remanded for a new trial. In the mean- 
while, the defendant will be retained in custody, until dis- 
charged by due course of law. 



18 SUPREME COURT [Dec. Term. 

[Garrett V. Tlie State.] 



Garrett v. The State. 

Indictment for Murder. 

1. GompetKncy of juror opposed to capital punishment on circumstantial 
evidence. — Where the indictment charges a capital ti^lony, a person sum- 
moned as a juror,. who states on hi.s voir dire " that he would convict on 
circumstantial evidence, but would not hang on such evidence" (Code, 
§ 4883), may be challenged for cause by the State. 

2. Proof of former (juarrel, as i<hoiving malice. — The fact of a previous 
altercation or difficulty between the accused and the deceased, is compe- 
tent evidence, as tending to show malice, ill-will, or a motive for the 
killing ; but the particulars or merits of that difficulty can not be inquired 
into. 

3. Same; declarations of third person at former difficulty. — The de- 
clarations of a bystander at the time of the previ(.us altercation or diffi- 
culty, which occurred several hours before the killing, are too remote 
from the homicide to be admissible as a part of the res gesttv, and, if 
illustrating the nature of the former difficulty, would not be toinpeti.nt 
or admissible as e\adence against the defendant; but the derlaration of 
the defendant's wife, made in his presence and hearing at the time of the 
former difficulty, addressing him by name, and telling him not to have 
any difficulty with the deceased, does not relate to the particulars of the 
occurrence, but only tends to prove the fact, and is admissible as evi- 
dence against the defendant. 

4. Proof of identity. — Identity of name is presumptive of identity of 
person, in the absence of evidence showing that the mime is borne by 
two or more persons in the same neighborhood or community. 

5. Same ; implied admission. — When it becomes material to })rove 
the identity of the accused as the person who committed the offense, any 
declaration addressed to him, tending to establisii such identity, and 
admitted by his conduct or silence to be true, is competent evidence. 

Fkom the City Court of Montgomery. 

Tried before the Hon. Thos. M. Akkington. 

The defendant in this ease, Allen Garrett, was indicted for 
the murder of Charles J. Floyd, by shooting him with a gun ; 
and was tried on issue joined on tlie plea of not guilty. On 
the trial, as appears frotn the bill of exceptions, a person regu- 
larly summoned and drawn as a juror, being examined on his 
Doir dire by the court touching his qualiiications as a juror, 
"was asked, if he thought a conviction should not be had on 
circumstantial evidence; to which he answered, that he would 
convict on circumstantial evidence, but that he would not hang 
on such evidence." Thereupon, he was challenged as incom- 
petent by the State, and the challenge was allowed by the 
court ; to which ruling an exception was reserved by the de- 
fendant. 

Vol. lxxvi. 



1884.J OF ALABAMA. 19 

[Garrett v. The State.] 

" The State introduced evidence tending to show tliat the 
defendant killed the deceased, on Friday, March 28, 1884, 
under circumstances which constituted murder in the first de- 
gree ; but there was a conflict in tlie testimony, as to whether 
or not the defendant was the person who committed the crime. 
The State's witnesses testified, that the deceased was killed by 
tiie defendant as aforesaid, about four o'clock on the afternoon 
of that day; that about eleven o'clock on the morning of that 
day, the defendant and wife were on the premises of tlie de- 
ceased, who ordered them oft"; that the defendant and the de- 
ceased then got into an altercation, and defendant was struck 
by the deceased ; and that defendant's wife then exclaimed : 
' Mr. Garrett, donH you and Mr. Floyd have any difficulty, 
Mr. Garrett, yon tal'e me home.'' There was a conflict in tlie 
testimony, as to the identity of the defendant as tlie person 
who M'as on Floyd's place at the time of this difficulty, and 
also at the time of the homicide. The State offered the above 
declarations as part of the res gestw, and to identify the de- 
fendant as the person who did the killing. The defendant ob- 
jected to tlie declarations of the woman, as above stated, and 
moved to exclude them from the jury ; " and he duly excepted 
to the overruling of his motion and objection. The bill of 
exceptions adds : " This was, substantially, all the evidence." 

W. S, TnoKiNGTON, and J. M. Falknek, for appellant, 
(1.) The statute allowing challenges to the State, in criminal 
cases, is in abridgment of the rights of the accused, and must 
be strictly construed. The excluded juror did not come within 
its terms: he did not have a fixed opinion against capital or 
penitentiary punishments, and he was not unwilling to convict 
on circumstantial evidence (Code, § 4883); and to hold him 
incompetent, because he "would not hang on such evidence," 
would greatly enlarge the statutory grounds of challenge. 
(2.) The declarations of the woman, made in the morning, 
four or five hours before the killing, were not admissible as 
part of the res (/estw connected with the killing. — 1 Greenl. 
Ev. § 108, note 2; Gatidy v. Humphries, '^h Ala. 624; Tomp- 
kies V. Reynolds, 17 Ala. 118; Lnos v. Tuttle, 3 Conn. 250; 
Farne^' v. Turner, 1 Clarke (Iowa), 54. Nor were they ad- 
missible to identify the defendant.— 1 Brick. Dig. 843, § 554. 

T. N. McClellan, Attorney- General, for the State, cited 
the following cases: (1.) As to the incompetency of the ex- 
cluded juror: Shnfer v. The State, 7 Texas App. 239; State 
V. West, 61) Ala. 401 ; Thompson on Juries, § 202. (2.) As to 
the admissibility of the declarations which were admitted : 
Lander v. People, 104 111. 256 ; Ordway v. Sanders, 58 N. 



20 SUPREME COURT [Dec. Term, 

[Garrett V. The State. J 

H. 133 ; Baker v. Gausin, 76 Ind. 317 ; Rollins v. Strout^ 
6 Nev. 150 ; People v. Murphy, 45 Cal. 137 ; Mack v. The 
State, 48 Wise. 271. 

CLOPTON, J. — The statutes prescribing qualifications of 
jurors, and causes of challenge, were designed to obtain a trial 
by an intelligent, competent and impartial jury. They were 
enacted, not solely to preserve the rights of the defendant, by 
securing to him a fair trial, but also to procure a due and 
proper enforcement of the law, for the protection of the rights 
and the safety of the community. The purpose of the statutes 
is, to secure to the defendant, and to the State, the right of re- 
jecting unfit persons as jurors. To give to the State the right 
to an impartial jury, and to reject persons who, from conscien- 
tious scruples or otherwise, are incompetent to administer pun- 
ishment for crime, as exacted by the law, section 4883 of the Code 
was enacted. It provides : " On a trial for any offense which 
may be punished capitally, or by imprisonment in the peniten- 
tiary, it is a good cause of challenge by the State, tliat the 
person has a fixed opinion against capital or penitentiary pun- 
ishments, or thinks that a conviction should not be had on cir- 
cumstantial evidence." 

During the selection of a jury for the trial of the defendant, 
who was indicted for murder, a person summoned as a juror, 
on being examined by the court as to his qualifications, an- 
swered, that " he would convict on circumstantial evidence, but 
would not hang on such evidence." To the offense of murder 
in the first degree, the law attaches the penalty of death, or 
imprisonment for life in the penitentiary, at the discretion of 
the jury. The design and policy of the law are, that persons 
convicted of murder in the first degree shall, in a proper case, 
suffer death; but the law-makers, knowing that the circum- 
stances would vary in different cases — in some mitigating the 
guilt, though not suflticient to reduce the degree of the offense 
— and that the death penalty may be too severe, or unnecessary, 
left to the jury, from a tender regard for human life, a wise 
and large discretion as to the punishment. The policy of the 
law, and the purpose of this discretion, would be defeated, if a 
person is permitted to serve as juror w^hose conscience is antag- 
onistic to the utmost penalty prescribed by the law, where the 
facts demand its infliction. A juror who can not conscien- 
tiously aflix the penalt}^ of death, where a conviction is had on 
circumstantial evidence, is not qualified to exercise the discre- 
tion vested in him by the law, and does not possess the fitness 
contemplated by the statute. Under no circumstances could 
his sentence, in such case, be more than imprisonment for life. 

It is insisted that section 4883 must be strictly construed, as 

Vol. lxxvi. 



1884.] OF ALABAMA. 21 

[Garrett V. The State.] 

in abridgment of tlie rights of the defendant ; and that the 
juror meets the requirements of the statute, when lie is willing 
to convict on circumstantial evidence. This construction is too 
narrow. The right of the defendant is a trial by a fair and 
impartial jury. He has no right, secured by the organic or 
any law, to be tried by a jury, who, from scruples or preju- 
dice, will not adtninister the law, or execute its penalties. Con- 
viction of crime and its punishment are, in contemplation of 
law, inseparable. If the construction contended for were 
adopted and acted on, the penalty of death would, in cases of 
circumstantial evidence, be virtually eliminated as a consequence 
of conviction. The legislature, in fixing the disqualifications of 
jurors in criminal cases, had in view the criminal law, which 
attaches different grades of punishment to the same offense, 
and contemplated the punishment, as well as the mere verdict 
of guilty, A judgment of guilty, without consequent punish- 
ment, would be vain and nugatory. The law having enacted 
that murder in the first degree is punishable with death, a person 
who will not affix this penalty, because of his opinion that it 
should not be done when the conviction is on circumstantial 
evidence, is incompetent to serve as a juror, unless the cause of 
challenge is waived by the State. This question was expressly 
decided, in accordance with these views, in Jackson v. State, 
74 Ala. 26. — People v. Tanner, 2 Cal. 258 ; Greenley v. State, 
60 Ind. 141 ; State v. West, 69 Mo. 401 ; Caldwell v. State, 
41 Tex. 86; Sm.itk v. State, 55 Ala. 1; Waller v. StaU, 
40 Ala. 325. 

It is permissible to prove previous altercations or combats 
between the accused and the deceased, as tending to show 
malice, ill-will, or a motive for the killing. The object of such 
evidence is the fact of the previous difficulty, and collateral in- 
quiries into the particulars, details or merits, are not allowable. 
Gray v. State, 63 Ala. QQ ; Mc Anally v. State, 74 Ala. 9. Hes 
gestm consists of such circumstances, or declarations, as arise 
from a main or principal fact, are cotemporaneous with it, so 
as to be regarded a part of the transaction, and serve to ilhis- 
trate its character. The main fact is the homicide. Declara- 
tions of a bystander, made several hours previously, on the oc- 
casion of an altercation between the parties, are not sufficiently 
coincident in point of time with the main fact to form part of 
the res gestw: and if they served only to illustrate the nature 
of the previous difficulty, they would not be admissible, since 
its details or merits can not be made the subject-matter of in- 
vestigation. The declaration of the wife of the defendant, 
made at the time of the antecedent quarrel or combat, do not 
serve to explain the particulars or merits, but tended to prove 



22 SUPREME COURT [Dec. Term, 

[Booker v. The State.] 

the fact^ and having been made in the presence and hearing of 
the accused, were, for this purpose, admissible. 

It also appears that there was a conflict in the testimony, 
whether the defendant was the person who was on the premises 
of the deceased at the time of the altercation during the morn- 
ing of the day of the killing, and, also, who was there at the 
homicide. The identity of the defendant with the person who 
did the shooting was a material question. Identity of name is 
presumptive of identity of person, where there are not two or 
more persons in the same community or vicinity bearing the 
same name. — Gilt v. Watso7i, 18 Mo. 274; 2 Whar. on Ev. § 
1273. In the absence of any showing of the nature and ex- 
tent of the conflict in the testimony, we must presume that the 
name of the defendant tended to identify him as the person 
who had the previous difficulty with the deceased, and who had 
a motive or incentive to do the killing, and as the person who 
committed the homicide. The accused having been addressed 
by his wife, at the time and place of the altercation, by a par- 
ticular name, and his acquiescence, is some evidence that such 
is his name, its sufficiency to be determined, under all the cir- 
cumstances, by the jury. Whenever, on the trial of a cause, 
it becomes material to prove the identity of the accused with 
the person who committed the offense, it is competent to show 
any declaration addressed to the defendant, tending to prove 
such identity, which, by his conduct, he admitted to be true. 

Affirmed. 



Booker v. The State. 

Indictment for Assault mith Intent to Rob or Murder. 

1. Error without injury in giving charge at first refused. — When a 
charge asked is improperly refused, but the jury are afterwards recalled, 
before they have returned a verdict, and the charge is then given to 
them, the judge informing them that he has changed his opinion, the 
error is cured, and can work no injury. 

2. Charge as to sufficiency of proof of identity. — Where the identity of 
the defendant as the criminal agent depends on the testimony of the 
prosecutrix alone, a charge asked, instructing the jury that, "if she 
may be mistaken in his identity, then the jury ought to accpiit him," is 
properly refused; since a mere possibilitj' of mistake, as to his identity, 
is not the equivalent of that insufficiency of i)roof which, as matter of 
law, generates a reasonable douV)t, and recpiires an accjuittal. 

3. Charge as to proof of good character. — A charge asked, instructing 
the jury that proof of good character in a criminal case, if l)elieved by 
them, " is sufficient to genertite a reasonable doubt of the defendant's 

Vol. lxxvi. 



1884.J OF ALABAMA. 23 

[Booker V. The State.] 

guilty" is properly refused ; since, while such evidence is admissible for 
the purpoae of j^'eneratinj; a reasonable doubt of guilt, its sufficiency is a 
question for the decision of the jury. 

From the Circuit Court of T)alla8. 

Tried before the Hon. John Moore. 

The defendant in this case was indicted for an assault on 
Mrs. Ruth Shaddock, with intent to murder her, as alleged in 
the tirst count, or, as alleged in the second count, with intent 
to rob ; and on the trial, issue being joined on the plea of not 
guilty, he was found guilty as charged in the first count. On 
tiie trial, as the bill of exceptions states, Mrs. Shaddock was 
examined as a witness for the State, and testified to the circum- 
stances of an assault upon her, at her store in East Selma, 
about seven o'clock in the evening of Saturday, April 9th, 
1884; and she identified the defendant as the assailant, although 
she had then only seen him once before, when he entered her 
store in the morning of the same day. The defendant, who 
was a young negro about twenty years old, was arrested by a 
policeman, a few days after the commission of the offense, 
from the description given by the prosecutrix. After his ar- 
rest, and while in the mayors office in company with several 
other negroes, the prosecutrix was carried into an adjoining 
room by the city marshal, and asked to point out the assailant ; 
and she testified on the trial that she then pointed out the de- 
fendant, ''whom she recognized by his features, dress, and gen- 
eral appearance." The city marshal, being examined as a wit- 
ness on the part of the defendant, testified that the prosecutrix, 
on the occasion mentioned, "as he understood her, pointed to 
a negro sitting by the defendant; but that soon afterwards, 
said negro being arraigned for trial before the mayor for said 
offense, and Mrs. Shaddock being brought in as a witness 
against him, she said he was not the guilty person, and, point- 
ing to the defendant, said he was the one who did it." The 
defendant adduced proof of an alihi, and also proof of liis 
previous good character up to the time when he left the place 
where he was raised, about two years before the commission of 
the offense. " The court charged the jury, among other things, 
that it was their duty to consider the evidence as to the de- 
fendant's good character, in connection with all the other evi- 
dence in the case, and when so considered, if they had a reas- 
onable donl)t as to his guilt, they must acquit him;" but re- 
fused to instruct them, on the written request of the defendant, 
" that the good character of the defendant, up to his eighteenth 
year, is sufficient to generate a reasonable doubt of his guilt, if 
the jury so believe." An exception was duly reserved to the 
refusal of this charge, and this is the only matter shown by the 
bill of exceptions as reserved. 



24 SUPREME COURT [Dec. Term, 

[Booker v. The State.] 

A motion was entered on the docket in this court, supported 
by affidavits, to amend the bill of exceptions, by making it 
show that a charge was asked by the defendant in writing, and 
refused by the court, in these words : " If the jury believe 
that the only evidence of the defendant's guilt is in the testi- 
mony of Mrs. Shaddock, and that she may be mistaken in his 
identity as the man who assaulted her, then they ought to ac- 
quit him ; " and that an exception was reserved by the de- 
fendant to its refusal. It was admitted that this charge was 
asked in writing by the defendant, and was at first refused by 
the judge, and an exception was duly reserved to its refusal; 
but the presiding judge refused to incorporate these facts in 
the bill of exceptions, because, after the jury had retired about 
twenty or thirty minutes, and while they were considering their 
verdict, he had them recalled into the court-room, informed 
them that he had changed his mind as to this charge, and then 
gave it to them ; and it is stated in the atRdavits that this was 
done in the presence of the defendant and his counsel, "neither 
of them objecting to the court then giving said charge, but not 
waiving in any way their exception to its refusal when asked." 

B. F. Saffold, for the appellant. 

T. N. McClellan, Attorney-General, for the State. 

STONE, C. J. — There is a motion in this case to establish a 
bill of exceptions, or, rather, to amend the one signed by the 
presiding judge and found in the record. The exact motion 
is, to have the record show the judge's ruling on a charge 
asked, and not shown in the transcript. The testimony is, 
that before the jury retired the charge was asked in writing, 
and was refused. Twenty or thirty minutes after the jury had 
retired, and before they returned a verdict, they were brought 
back into court, and the identical charge previously refused was 
given to them, the judge informing them he had changed his 
mind. We do not think the court erred in this. Such rulings 
are not infrequent in practice, and we can not conceive of any 
injury likely to ensue from such practice. — Thompson on 
Charging Juries, §§ 93, 97 ; Hall v. State, 8 Ind. 439. Illegal 
evidence admitted, and afterwards distinctly and clearly with- 
drawn from the jur}', presents no reversible error; and all will 
admit that, in such case, the jury is much more likely to be 
biased, than they would be by an error in charging, but after- 
wards corrected. — State v. Givens, 5 Ala. 747 ; DeGraJfenreid 
V. Thomas, 14 Ala. 681. 

There is another and better reason why the bill of exceptions 
should not be amended as moved for. The charge is at least 
Vol. lxxvi. 



1884.] OF ALABAMA. 25 

[Booker v. The State.] 

misleading, if indeed it is not positively erroneous. The only 
evidence that the accused was tlie guilty party, was that of Mrs. 
Shaddock, on whom the assault was committed. It was con- 
tended that she had not sufficient knowledge to identify the 
prisoner with requisite certainty. The charge asked was, that 
if Mrs. Shaddock " may be mistaken in his identity, then the 
jury ought to acquit him." The most natural import of this 
language is, that the prisoner was entitled to an acquittal, if 
there was a j)ossibility that the witness was mistaken as to his 
identity. This is not the law. The rule is, that if on the 
whole testimony the jury entertain a reasonable doubt, then 
there ought to be an acquittal. Identification was one of the 
necessary facts in proving the guilt; and if the jury entertain 
a reasonable doubt of the establishment of this indispensable 
fact, the prisoner should have been acquitted. A mere possi- 
bility of mistake, however, is not the equivalent of that insuf- 
ficiency of proof, which, as matter of law, generates a reason- 
able doubt, and demands acquittal. — Clark's Manual, § 2490. 
The charge being rightly refused, tlie moveant presents no case 
for amending the bill of exceptions. 

The charge asked and refused, as shown in the bill of excep- 
tions, asserts, as matter of law, that previous good character is 
sufficient to generate a reasonable doubt, if the jury so believe. 
If by tins charge it is meant to assert, that if the jury believe 
the defendant has established a previous good character, then 
that is sufficient to generate a reasonable doubt, this is stating 
the principle too strongly. Sufficiency of oral testimony is 
always a question for the jury. The true rule is laid down in 
Felixes case, 18 Ala. 720, 725, in the following language : "The 
good character of the party accused, satisfactorily established 
by competent witnesses, is an ingredient which ought always to 
be submitted to the consideration of the jury, together with 
the other facts and circumstances of the case. Tiie nature of 
the charge, and the evidence by which it is supported, will 
often render such ingredients of little or no avail ; but the 
more correct course seems to be, not in any case to withdraw it 
from consideration, but to leave the jury to form their con- 
clusion upon the whole of the evidence, whether an individual, 
whose character was previously unblemished, has or has not 
committed the particular crime for which he is called upon to 
answer." The charge asked asserts that previous good char- 
acter, if found to exist, is sufficient to generate a reasonable 
doulit. The rule declared is, that it is but an ingredient to be 
weighed by the jury. The former asserts its sufficiency as 
matter of law. 1" he latter submits its sufficiency to the consid- 
eration of the jury, and allows them to make it the basis of a 
reasonable doubt. — See, also. Hall v. The State, 40 Ala. 698. 



26 SUPREME COURT [Dec. Term, 

[Jackson v. The State.] 

If we are mistaken in our interpretation of the charge, tlien 
it is obscure and calculated to mislead, and for tliat reason was 
properly refused. 

The judgment of the Circuit Court is affirmed. 



Jackson v. The State. 

IndictTYient for Murder. 

1. Objections to special venire. — Under the provisions of the special 
statutes regulating the drawing of jurors in Dallas and other counties 
(Sess. Acts 1882-3, pp. 273, 446), the special venire in a capital case being 
drawn in the presence of the court, by the officers designated by law, 
and a copy thereof served on the prisoner, the failure of the sheriff to 
find one of the persons so drawn is no ground for quashing the venire. 

2. Same ; mistake in natne of juror. — A mistake in the name of a 
person summoned as a juror is not, under the general statute (Code, 
§ 4876), a ground for quashing the venire, " unless the court, in its dis- 
cretion, is of opinion tlu\t the ends of justice so require; but the court 
must, in such case, direct the name of such person to be discarded, and 
others to be forthwith summoned ; " and said sf)ecial statute containing 
no express provision inconsistent with this general law, the court may 
properly follow it, and its action is not revisable. 

3. Repealing statutes. — Repeals by implication are not to be favored, 
and a special statute operates a repeal of the general law only so far as 
their provisions are repugnant. 

From the Circuit Court of Dallas. 

Tried before the Hon. John Moore. 

The defendant in this case was indicted for the murder of 
Rufus Gill, by shooting him with a pistol. On his trial, and 
preliminary thereto, as the bill of exceptions states, "the fol- 
lowing proceedings were had : On INFonday, September 1st, 
1884, the court set the next following Friday, it bein"g the 6th 
day of the month, for the trial of said defendant under said 
indictment, and made an order fixing the number of jurors at 
sixty (60), including the regular jurors impanneled for the 
week, of wliom there were twenty-nine (29) ; and the presiding 
judge, in open court, then drew from the box containing the 
names of the jurors for the county the names of thirty-one 
persons to be summoned as jurors in the cause. Among the 
names of these thirty-one (31) persons so drawn was the name 
of Peter Feulner ; but the clerk of the court, in inserting said 
name in the special venire.^ spelled it Peter Femdner^ and it 
was so spelled in the copy of the venire served on the defendant 
as required by the order of the court. On the day set for the 
trial, when the case was called for trial, the defendant moved 

Vol. i-xxvi. 



1884.] OF ALABAMA. 27 

[Jackson V. The State.] 

the court to qnasli the venire^ because no such person as Peter 
Feunlner had been drawn by the judge. It was admitted that 
J*eter Feulner was the correct name, and that said Peter 
F'eulner iiad been summoned by tlie sheriff, and that he was 
tlien in attendance on tlie court. The court refused to quash 
the venire (to whicli ruling the defendant excepted), and then 
directed the clerk to discard said name from the venire', and 
the presiding judge then drew from the jury-box another 
name, viz., Daniel O'liourke, as a juror in said cause, and or- 
dered the clerk to put his name on the venire^ and directed the 
sheriff to summon him to appear forthwith as a juror; which 
was done, and the defendant excepted, both to the action of 
the court in discarding the name of said Fenlner, and in placing 
the name of said O'Rourke on the venire.'*'' 

"Among the thirty-one names first drawn, as above stated, 
was the name of P. T. Yaughan, which was placed on tlie 
venire furnished by the clerk to the sheriff, and also on the 
list of jurors served by the sheriff on the defendant. When 
the cause was called for trial, as above stated, the defendant 
moved to quash the veni?'e, because the sheriff had not sum- 
moned said Yaughan, while his name was on the list served on 
the defendant, and there was nothing on said list to show that 
said Yaughan had not been summoned ; and this was shown to 
be true. It was admitted that said Yaughan was absent from 
the county when his name was drawn, and had not then re- 
turned so as to be found by the sheriff. The court refused to 
grant said motion, and the defendant excepted. The court 
then examined under oath, separately, each one of said thirty- 
one persons drawn as aforesaid, who appeared and answered to 
their names, including said O'Rourke, and excluding said Peter 
Feulner, and also the twenty-nine regular jurors, to ascertain 
if they ]30ssessed the necessary qualifications of jurors in the 
cause; when forty-two of said jurors, including said O'Kourke, 
were found to possess the necessary qualifications, and were 
held by the court to be competent as jurors. After the names 
of said forty-two persons had been written on lists, as required 
by law, preparatory to selecting twelve jurors to try the case, 
the defendant again objected to being recpiired to select a jury 
from said forty-two names, because said P. T. Yaughan had 
not been found by the sheriff, while his name was on the list 
served on the defendant, and said list did not show that said 
Yaughan had not been found ; which motion the court over- 
ruled, and the defendant excepted. Thereupon, a jury was se- 
lected, the defendant striking two names, and the State one, 
alternately, until only twelve remained; and the said O'Rourke 
was one of the twelve so selected as jurors." 



28 SUPEEME COURT [Dec. Term, 

[Jackson v. The State.] 
J. R. Satterfield, and John White, for appellant. 

T. N. McClellan, Attorney-General, for the State. 

SOMERYILLE, J. — The motion to quash the venire was 
properly overruled. One of the grounds upon which tiiis mo- 
tion was based, was the failure of the sheriff to find one of the 
jurors whose name was on the list of those drawn by the court, 
and ordered to be summoned, in accordance with the provisions 
of the special law regulating the drawing and impanneling of 
grand and petit juries in tlie county of Dallas. — Acts 1882-83, 
pp. 273, 278 ; and amendatory act, on p. 446. 

This precise question was considered by us in McElroy v. 
The State^ at the last term, where we held, that such a motion 
was without merit, the special law under consideration failing 
to provide for the contingency of the sherifE's failure to find 
one or more of this list of jurors. In that case, we observed 
that, ''if the law operated unjustly in some cases, the remedy 
is for the legislative, and not the judiciary department." — 75 
Ala. 9. 

The second ground, upon which the motion to quash was 
urged, was a mistake in spelling the name of one of the per- 
sons, who was summoned as a juror, in both the list prepared 
by the clerk for the sheriff, and in the list served by the sheriff 
on the defendant. 

The special law fails to expressly provide for a case of this 
kind. The general law of the State, however, as embraced in 
section 4876, provides that, in such a case, the venire shall not 
be quashed, " unless the court, in its discretion, is of opinion 
that the ends of justice so require," but that the court must 
" direct the names of such persons to be discarded, and others 
to be forthwith summoned to supply their places; and the 
persons so summoned shall be disposed of in the same manner 
as if they had been summoned in the first instance." — Code, 
1876, § 4876. The court seems to have pursued the course 
required by the general law, and this, we think, was without 
error. The special law repeals the general law, only so far as 
it is repugnant to its provisions. As to all matters where no 
repugnancy exists, we can not infer that there is any legislative 
intention that the one shall be abrogated by the other. Repeals 
by implication are universally held not to be favored. — Joseph 
V. Cawthorn, 74 Ala, 411 ; Ilerr v. Seymmir, at present term. 
The quashing of the venire was purely a matter of discretion 
with the Circuit Court, and we can not review the exercise of 
such discretion. 

There is no error in the record, and the judgment of the 
Circuit Court, with the sentence of death which it has pro- 

VOI.. LXXVI. 



1884.] OF ALABAMA. 29 

[Griffin v. The State.] 

nonnccd upon the prisoner, is affirmed. The day appointed for 
the execution of this sentence liaving passed, this court hereby 
specifies the thirteenth day of February, next, 1885, as the day 
fixed for the execution of said sentence ; and it is ordered and 
adjudged that the said judgment and sentence be executed ac- 
cordingly. 



Griffin v. The State. 

Indictment for Rape. 

1. Complaint by prosecutrix recently after commission of offense. — In 
a prosecution for rape, it is permissible to prove by the prosecutrix, or 
by others, that she made complaint, recently after the commission of 
the offense, to persons to whom it was natural that she should com- 
plain ; but, when sucli complaint is not a part of the res geslx, and is re- 
ceived only as corroborating her testimony, neither the particulars de- 
tailed by her, nor the name of the person accused by her, can be ad- 
mitted as evidence, unless called out on cross-examination, or to sustain 
her testimony when impeached. 

2. Same; evidence impeaching and sustaining prosecutrix. — The de- 
fendant having cross-examined the prosecutrix as to the complaint or 
statement made by her, with a view to impeach her, antl having exam- 
ined some of the persons who were present at the time said complaint or 
statement was made, it is permissible for the prosecutrix, for the purpose 
of sustaining her testimony, to examine other persons who were present 
at the same time. 

3. Error without injury in admission of evidence. — When evidence is 
admitted which is at the time prima facie irrelevant, the error is cured 
by the Subsequent introduction of the evidence necessary to show its 
relevancy. 

4. Province of court and jury, in matters of evidence. — Whether or 
not there is any evidence at all, as to a particular fact, is a question for 
the court, though the sufficiency of the evidence is a question for the 
jury ; and the court may properly state to the jury that there is evidence 
of the fact, when the record shows that the statement was true. 

From the Circuit Court of Pike. 

Tried before the Hon. Jno. P. Hubbard. 

The defen(hint in this case was indicted for a rape, pleaded 
not guilty to the indictment, and was tried on issue joined on 
that plea. A bill of exceptions was reserved on the trial, which 
expressly states that all the evidence adduced on the trial is not 
set out therein, "but only so much as is necessary to present 
the points reserved." It was shown that the prosecutrix, at 
the time of the alleged rape, was living in a house alone with 
her little daughter, a child about eight years old, and the offense 
was committed on Saturday night, July 6th, 1884. She testi- 
fied, in substance, that on that night, about one hour before 



30 SUPREME COURT [Dec. Term, 

[Griffin v. The State.] 

daybreak, wliile she was asleep in bed with hei- daughter, tliey 
were aroused by the noise made by some person ; tliat she ex- 
claimed, ''''Lord have mercy, who is thatf'' To which the 
person replied: ^^ Hush i if you make any noise, I will kill 
you. Do you want to know loho it isf'' She further stated, 
that the person said his name was Wes. Burney, told what he 
wanted, and then forcibly ravished her; that the person had 
entered through the window, but she was not aroused by the 
noise he made in breaking it open, though her bed was within 
a few feet of the window ; that siie gave no alarm, and made 
no outcry, save the words above quoted ; and that she made 
complaint to her father, who lived about a quarter of a niile 
distant, as soon as she could get out of doors after day-light. 
" She said, also, that she had never seen the party before, but 
that the defendant was the man ; that there was no light in 
the house at the time, and that the moon was about going 
down. She testified also, on cross-examination, that she had 
admitted to James Folmar, A. N. Worthy, and H. C. Wiley, 
that she asked the party, during the act, how he got in, and he 
replied that he got in at the window ; that she then said to him, 
'■Suppose you get ine pregnant ;'' to which he replied that he 
could prevent it, or words to that effect; that she also told said 
persons that she got up and let the party out at the door, and 
said to him, as he was going, that she would not have it known 
for a thousand dollars; and that he replied, he would not have 
it known for five hundred dollars, and would kill her if she 
told it. She admitted, also, that slie had told said persons that 
she did (?) know she would be able to identify the party, if she 
was to see him, and that she thought it was a negro* by his 
scent." 

The father of the prosecutrix, a witness for the State, testified 
that she made complaint to him early on Sunday morning, 
"and said that it was a negro, as she knew by his scent, and 
that he had a smooth face, but that she had never seen him 
before, and did not know that she would be able to identify 
him if she was to see him ;" and he stated the facts which led 
to the arrest of the defendant, who went to the house of the 
prosecutrix on the Saturday night next after the commission of 
the alleged rape, and, while walking from one window to 
another in his socks, was shot by the witness, who was lying in 
wait, with a loaded gun. "A predicate had been laid by the 
defendant to impeach the prosecutrix, by showing that she had 
said, in substance, to said Folmar, Wiley, and the witness 
Worthy, in a conversation had with them by her shortly after 
the alleged offense, that she could not tell who the guilty party 
was — that she would not know him, or be able to identify him ; 
and the witness, Folmar and Wiley testified as to what she said 

Vol. lxxvi. 



1884.] OF ALABAMA. 31 

[Griffin V. The State.] 

in that conversation on that subject, and said Wortliy liad been 
cross examined by defendant on tliat subject; and in rebuttal 
of said Worthy's testimony, by the State, he was asl<ed to state 
exactly, as nearly as he could, what she did say ; to which he 
answered, that she said, as near as he could recollect, ' that she 
did not know that she would be able to identify him.' To this 
testimony of said Worthy, as to what the prosecutrix said, tiie 
defendant objected," and duly excepted to the overruling of 
his objection. "Said witness was asked by the State, if the 
prosecutrix made any complaint to him at the time of said 
conversation; to which question the defendant objected, and 
the court sustained the objection. After sustaining said ob- 
jection, something being suggested that there was no evidence 
of any comj)laint having been made by the ]3rosecutrix, the 
court told tiie jury, that there was evidence before them of 
complaint made by the prosecutrix — that she and her father 
had testitied on that subject, but that it was for the jury to 
determine what that testimonj' proved. To all of which de- 
fendant excepted." The defendant afterwards introduced said 
W^iley and Folmar as witnesses, each of whom stated, in sub- 
stance, that the prosecutrix, in the conversation mentioned by 
the witness Worthy, said that she thought she would not be 
able to identify lier assailant; that this conversation took place 
a few days after the commission of the alleged rape, and before 
the shooting of the defendant by the father of the prosecutrix; 
and that the prosecutrix, during the conversation, stated what 
passed between her and her assailant substantially as she had 
testified on the trial. The bill of exceptions then concludes 
thus: ".The rulings of the court on the evidence, as hereinbe- 
fore set forth, are th^ matters of error complained of, and on 
account of which the defendant appeals from the judgment 
and sentence of the court." 

Parks & Son, for the appellant, cited Laet/ v. The State, 45 
Ala. 80; Roscoe's Crim. Ev. 862; 1 Greenl.Ev. § 102; 3 lb. § 
213; 41 N. Y. 265-9 ; 33 Iowa, 420. 

T. N. McClellan, Attorney-General, for the State. 

CLOPTON, J. — On an indictment for rape, it is competent 
to show by tlie prosecutrix, or by another, or by both, that re- 
cently after the alleged rape she made complaint to persons to 
whom complaint, on the occurrence of such outrage, would 
naturally be made. When the complaint constitutes no part of 
the res gesiw, and is received only as corroborative of her testi- 
mony, neither the particulars detailed by her, nor the name of 
the person whom she mentioned as the offender, can be given 



32 SUPREME COURT [Dec. Term, 

[Griffin v. The State.] 

in evidence in the first instance. But the defendant may, on 
cross-examination, inquire into the particulars of the complaint, 
and thus make admissible evidence relating thereto by both 
parties; or, if the defendant introduces evidence to impeach 
the prosecutrix, the prosecution may sustain her by showing 
that her statements in making the complaint, and her testimony 
on the trial, correspond. — Scott v. State, 48 Ala. 420; Nichols 
V. Stewart, 20 Ala. 358 ; Thompson v. State, 38 Ind. 39 ; Baccio 
V. People, 41 K Y. 265; 3 Greenl. on Ev. § 213; 2 Bish. 
Crim. Broc. § 963. 

The defendant, on the cross-examination of the prosecutrix, 
inquired into the particulars of her conversation with Worthy 
and the other persons mentioned, and also laid the predicate 
for her impeachment ; and subsequently the defendant examined 
the others present at the conversation, for the purpose of im- 
peaching the prosecutrix. Some authorities hold, that when the 
defendant inquires into the particulars, and impeaches the pros- 
ecutrix, she may be sustained by evidence that she has stated 
the facts to other persons as she testified at the trial ; but it is 
not necessary for us to express any opinion on the competency 
of such evidence. It will not be disputed, that, in such case, 
it is competent for the prosecution to introduce persons other 
than the impeaching witnesses, who were present and heard the 
same conversation, for the purpose of supporting the prose- 
cutrix. 

If it be conceded that the examination of Worthy was 
irregular, because of the stage of the trial at which it occurred, 
and that his testimony was jprima facie irrelevant, it became 
relevant by the subsequent attempt to impeach by proving 
contradictory statements. It is well settled, that if evidence, 
which is irrelevant at the time offered, becomes relevant after- 
wards during the progress of the trial, its admission is not an 
error for which the judgment will be reversed. — Johnson v. 
State, 29 Ala. 68 ; Bobinson v. Allison, 36 Ala. 525. 

There is no error in the observation made by the presiding 
judge, that there was evidence of complaint having been made 
by the prosecutrix, and that the prosecutrix and her father had 
testified on that subject ; but, what that testimony proved was 
for the jury to determine. The remark seems to have been 
made in reply to a suggestion that there was no such evidence. 
"Whether there be any evidence or not, is a question for the 
judge ; whether it is suflBcient evidence, is a question for the 
jury.']— 1 Greenl. on Ev. § 49. 

Affirraed. 



ls«-^•J OF ALABAMA. 33 

[Bryant v. The State.] 



Bryant v. The State. 

Indictment for Living in Adultery or Fornication. 

1. Living in adulter 1/ or fornication ; conviction of misdemeanor, under 
indictment charging fflonif. — Under an indictment which describes the 
defendants as a negro man ami a white woman, and charges them with 
the statutory felony of Hving together in aduUery or fornication (Code, 
§ 4189), if the evidence fails to prove that the man is a negro, or of negro 
hlood, a conviction may be had of a misdemeanor in living together in 
adultery or fornication (76. ^ 4184); since the misdemeanor is neces- 
sarily included in the felony (lb. § 4904), and a conviction or accjuittal 
of the latter would be a bar to a subsequent prosecution for the former. 

From the Circuit Court of Chilton. 
Tried before the lion. Jas. E. Cobb. 

S. F. Rice, and Colliek, for appellant. 

T. N. McClellan. Attorney-General, for the State. 

STOXE, C. J. — Defendant, with another, was indicted under 
section 4189 of the Code of 1876. That section makes it a 
felony for any white person and a negro, or descendant of a 
negro to the third generation inclusive, to intermarry, or live 
in adultery or fornication with each other. The indictment 
charged, " that Washington Bryant, a negro man, or the de- 
scendant of a negro within the third generation, and Jemima 
Plardeman, a white woman, did live together in a state of 
adultery or fornication." The verdict of the jury was, " We, 
the jury, fail to find Wash. Bryant to be a negro, but find the 
defendants guilty of living together in fornication;" and they 
assessed fines against each, under section 4184 of the Code, 
upon which judgments were rendered against them. The 
section last named constitutes adultery or fornication between 
a man and woman of the same race a misdemeanor, punishable 
with a money fine. This conviction and sentence of the lesser 
offense was in accordance with the ruling of the trial court, to 
which defendant Bryant reserved an exception ; and he brings 
the case to this court for review, on his exception thus 
reserved. 

It is here contended, that under an indictment for this statu- 
tory felony, there can not be a conviction for the lesser offense, 
although every ingredient of the misdemeanor is necessarily 
3 



34 SUPREME COURT [Dec. Term, 

[Bryant V. The State.] 

embraced in the statutory felony. We liold this position un- 
tenable, for the followino^ reasons: Section 4904 of the Code 
declares, that " When the indictment charges an offense of 
which there are different degrees, the jury may find the de- 
fendant not guilty of the degree charged, and guilty of any 
degree inferior thereto, or of an attempt to commit the offense 
charged ; and the defendant may be also found guilty of any 
offense which is necessarily included in that with which he is 
charged, whether it be a felony or misdemeanor." The offenses 
of simple fornication and simple adultery are necessarily in- 
cluded in the crime charged in the indictment in this cause. 

In Sanders v. The State, 55 Ala. 42, the defendant had been 
tried and convicted of maltreatment of a convict sentenced to 
hard labor for the county, by chaining him to a plow. — Code, 
§ 4320. He was a second time indicted for assaulting the same 
convict with a chain. He pleaded the former conviction in 
bar. This court said : "The maltreatment charged in the for- 
mer indictment necessarily involved an assault and battery — 
the infliction of unlawful violence on the person of the con- 
vict. . . Applying the test which generally determines the 
sufficiency of the plea of antrefois convict, or antrefois acqitit 
— whether the facts alleged in the second indictment, if proved, 
would have warranted a conviction on the first indictment — 
the evidence sustained the plea, and the court erred in over- 
ruling it." We held the plea good, and allowed the defense. 
Applying the principles of that case to this, if there had been 
an acquittal under the indictment found, the defendants could 
not have been again indicted for a simple living together in 
fornication, between persons of the same race. 

Under a statute of Massachusetts, the offense of assault and 
battery, if committed on an officer of the law, in hindering 
and opposing him in the due and lawful execution of the dnties 
of his office, was constituted a special misdemeanor. In Com,. 
V. J^trhy, 2 Cusli. 577, the defendant was indicted for assault- 
ing one " Sanderson, being a constable, . . legally author- 
ized and duly qualified to discharge the duties of said office, 
and being then and there in the due and legal exercise and 
performance of said duties of said office, and him then and 
there, while he, the said Sanderson, w^as in the due and lawful 
execution of his said office, unlawfully, knowingly and design- 
edly, did hinder and oppose," &c. The defendant was con- 
victed, but a question was raised whether Sanderson was an 
officer. The court ruled, that if all the averments of the in- 
dictment, charging that Sanderson was an officer, were rejected, 
" there would still remain a full and technical charge of an as- 
sault upon the person of Joseph Sanderson ; and upon this 
charge it would be competent to render judgment on this in- 

VOL. LXXVI. 



1H84.] OF ALABAMA. 35 

[Woods V. The State.] 

dictinent, for the offense of a simple assault. The only doubt, 
then, is, whether upon this indictment a judgment is to be en- 
tered and sentence awarded for a simple assault, or for an as- 
sault with the aj'gravation that it was made upon a constable 
while in the discliarge of the duties of his office, and with the 
design of Iiindering and opposing him in the due execution of 
such official duty.'' 

Assault with intent to murder, maim, rob, or ravish, is a 
statutory felony ; yet it can not be (questioned, that under such 
indictment, the defendant may be acquitted of the felonious 
intent, and convicted of a sin) pie assault. — Mooney v. The 
State, 33 Ala. 419; RichanUon v. The State, 54 Ala. 158; 
Gree7i v. The State, 08 Ala. 539 ; Ifoore v. The State, 71 Ala. 
307; Wilcox v. The State, 40 Amer. liep. 53. See, also. 
Stats V. Stephens, 15 Ala. 554; Henry v. The State, 33 
Ala. 389. 

The question in this case is not one of needless particularity 
in the description of the offense, which, when resorted to, im- 
poses the necessity of particular proof, commensurate with the 
particular charge. That rule does not, and can not apply, 
when, as in this case, the higher offense charged, necessarily in- 
cludes and contains all the elements of a lesser offense. If it 
did, section 4904 of the Code would have no field of operation. 

In Skahis v. The State, 21 Ala. 218, the defendant had been 
convicted of a higher offense, on an indictment charging a 
minor offense, which was included in the offense of which the 
conviction was had. This court rightly reversed the ruling. 
The major includes the minor, but the minor does not include 
the major. Barhour County v. Brunson, 36 Ala.- 362, and 
Walker v. The State, 73 Ala. 17, exert no influence on the 
questions raised by this record. 

Affirmed. 



Woods V, The State. 

Indictmsnt for Grand Larceny. 

1. Competency of wife as viilness against husband's accomplices. 
Where several persons are jointly indicted and tried together, the wife 
of one of them is not a competent witness for or against the others, 
when her testimony affects tiie interest of her husband ; but, when the 
husband is not a party to the record, not having been indicted, or a nolle- 
pros. having been entered as to him, the wife is a competent witness 
against the others, his accomplices in the commission of the crime. 



36 SUPREME COURT [Dec. Term, 

[Woods V. The State.] 

2. JIushand and wife as witnesses against each other. — Where the tes- 
timony of husband or wife, even in a collateral matter, tends to criminate 
the other, it will not be compelled, though it may be received. 

3. Accomplice ; corroborating testimony of. — When an accomplice is 
allowed to testify as a witness in a case of felony, the testimony of his 
wife may be sufficient corroboration to authorize a conviction (Code, 
§ 4895), the weight to be accorded to it being a question for the determin- 
ation of the jury. 

4. General exception to refusal of two or more charges. — A general ex- 
ception to the refusal of two or more charges asked, one of which is er- 
roneous, can not be sustained. 

5. Admissibility of declarations showing motive. — The defendant being 
indicted for the larceny of cotton from a person with whom he had had 
a settlement as his landlord, his declarations of dissatisfaction with that 
settlement — "that he had got nothing out of his cotton, and that he was 
determined to have satisfaction " — tend to show a motive for the larceny, 
and are competent evidence against him. 

From the Circuit Court of Hale. 

Tried before the Hon. John Moore. 

The indictment in this case charged that Patrick Woods, 
Tony Guy, Isaac Taylor, Isaac Jackson, George Hawks and 
Dick Bennett "feloniously took and carried away one bale of 
cotton, of the value of fifty dollars, the personal property of 
Mrs. Eliza Tunstall." On the trial, as the bill of exceptions 
and the judgment-entry each states, " before any evidence for 
the defense was commenced, Dick Bennett was, on motion of 
the State, discharged from the indictment, in order that he 
might be used as a witness for the State." Woods, Guy and 
Jackson being jointly tried, each pleaded not guilty ; and the 
trial resulted in a verdict of guilty against the two former, 
who reserved a bill of exceptions to the rulings of the court, 
in which Ihe facts are thus stated : 

•' Said Dick Bennett, being sworn as a witness for the State, 
testified, and gave a detailed account of the larceny of the 
cotton — that it w^as stolen on the night of December 29th, 1881, 
from the gin-house on the plantation belonging to the estate 
of James L. Tunstall, deceased, in said county of Hale ; that 
he (witness), George Hawks, Patrick Woods, Tony Guy, Ike 
Taylor and Ike Jackson participated in the taking and carrying 
away of two bales of cotton from said gin-house on that night ; 
that it was hauled off in the ox-wagon of said George Hawks, 
who was to receive, and did receive ten dollars for the use of 
it; and that on the next ni^ht, which was Friday, said Woods, 
Guy and Jackson met at his house, and they tliere divided 
among themselves the proceeds of the stolen cotton. The 
State then introduced Milly Bennett as a witness, who was 
shown to be the wife of said Dick Bennett, and who testified 
that, on said Friday night in Christmas week, 1881, she was at 
her house and in bed, but was not asleep ; that her husband, 
Patrick Woods, Tony Guy, and Ike Jackson were there, and 

Vol. lxxvi. 



1H84.] OF ALABAMA. 37 

[Woods V. The State.] 

she lieard tliem talkiiif^, and dividing some money ; and that 
she heard some of them say that ten dollars had been paid to 
George Uawks." The defendants objected to the testimony 
of said Milly Bennett, and moved to exclude it from the jury, 
"because she was the wife of said Dick Bennett, who was 
shown to be an accomplice in the crime, and who had testified 
as such, and therefore she could not corroborate the testimony 
of her husband ; and because the facts had been already testified 
to by her husband." The court overruled the objections, and 
admitted the testimony; and said defendants excepted. 

The State also proved, " having first laid the proper predi- 
cate," the confessions of said Tony Guy as to the larcenj' and 
sale of the cotton, and the division of the money; and his evi- 
dence was admitted without objection. "It was shown, also, 
that said two bales weighed 360 lbs. each, and were worth from 
$30 to $35 each;" that they were part of the crop raised on 
the plantation of said James L. Tunstall, during the year 1881; 
that said James L. died in, July, 1881, and by his last will and 
testament, which was duly probated in said county, bequeathed 
his entire estate to his mother, Mrs. Eliza Tunstall ; that said 
bales were stolen from the gin-house on the 29th December, 
1881, "and that neither Mrs. Tunstall nor her manager on the 
place consented to any one taking them." W. C. Tunstall, a 
witness for the State, testified that, after the death of James 
L., he took control of the plantation as agent for his mother, 
and carried on the farming operations for the rest of the year 
1881 ; that, as such agent, about the 15th December, 1881, he 
made a settlement with all the laborers on the place, including 
Patrick Woods, and paid each of them all that was due them ; 
"that said Patrick Woods received no money on said settle- 
ment, and was not satisfied with it, but, on the contrary, was 
very much dissatisfied and angry at the result." The defendant 
Woods objected to the question calling for this last statement, 
" on the ground that it was illegal, irrelevant, and calculated to 
mislead and prejudice the minds of the jury ; " and he duly 
excepted to the overruling of his objection, though it does not 
appear that any objection or exception was taken to the answer 
of the witness. Banks Washington, another witness for the 
State, testified that, "shortly after said settlement, in Decem- 
ber, 1881, he heard said Pat. Woods express his dissatisfaction 
— saying, ' that he had got nothing out of his cotton, and that 
he was determined to have satisfaction.' " To the question 
calling for this testimony, and to the testimony itself, said 
Patrick Woods duly objected, and excepted to the overruling 
of his objections. " There was other evidence offered by the 
State, tending to connect the defendants with the commission 



38 STJPREME COURT [De.-. Term, 

[Woods V. The state.] 

of the offense charged ; and some testimony on tlie part of said 
Ike Jackson, tending to show his itmocence." 

"This was all the evidence." Thereupon, the defendants 
requested the following charges in writing; (1.) "If a witness 
who has become State's evidence testifies corruptly, or makes 
only partial disclosures, he may then be proceeded against for 
his owm crimes, having failed to perform the condition on 
which he was admitted." (2.) " The jury can not convict the 
defendants, unless the testimony of Dick Bennett is corroborated 
by other evidence connecting the defendants with the commis- 
sion of tlie crime." (3.) "The testimony of the wife of an 
accomplice, to the alleged facts connecting the defendants with 
the commission of the crime, is not corroborative of the testi- 
mony of an accomplice, within the meaning of section 4895 of 
the Code." The court " refused to give either of said charges, 
by writing Refused across the face thereof, and signing the 
judge's name thereto; to which ruling of the court said de- 
fendants then and there excepted." 

Thos. Seay, for the appellants, cited Rex v. Neal^ 7 Car. & 
P. 168; Rex v. JVoakes, 5 Car. & P. 326; State v. Wilson, 31 
K J. 77; 1 Greenl. Ev. § 335; State v. Potoell, 58 Ala. 362. 

T. N". McClellan, Attorney-General, for the State, cited 
1 Wharton's Cr. Law, 769; 8 Car. & P. 284; 1 Leach, 115; 
1 Mete. Ky. 13; 1 Bishop's Cr. Pr. 1170; 1 Texas App. 278; 
25 Iowa, i28 ; 3 Ih. 481 ; Kelsoe v. The State, 47 Ala. 598 ; 
McAdory v. The State, 62 Ala. 154 ; Overstreet v. Tlie State, 
46 Ala. 30 ; Morningstar v. The State, 55 Ala. 148 ; Hudson 
V. The State, 61 Ala. 333 ; Johnson v. The State, 17 Ala. 618. 

SOMERVILLE, J. — It may now be considered as a settled 
rule of criminal evidence, that, where several persons are tried 
together under a joint indictment, the wife of neither of the 
defendants is a competent witness for or against a co-defendant 
of her husband, where her testimony affects the interest of her 
husband.— Whart. Cr. Ev. §§ 391-392 ; 1 Greenl. Ev. § 3:-i5 ; 
Roscoe's Cr. Ev, 124* ; Coin. v. Rohinson, 1 Gray, 555. 

Where, however, the husband is not a party to the record, 
wliether hy reason of a failure to indict him, or of the entering 
of a nolle-prosequi against him, no reason is perceived why the 
testimony of the wife should be held incompetent in the pros- 
ecution of an accomplice of her husband. — 1 Bishop Cr. Proc. 
(3d Ed. 1880), §§ 1019-1020. The proceeding then becomes 
a collateral one, in which the interests of the husband can not 
be judicially affected. And, in such cases, where neither the 
husband nor the wife is a party defendant to the cause, so as to 

Vol, lxxvi. 



1884.] OF ALABAMA. 39 

[Woods V. The State. 1 

be directly interested, the testimony of either may be received, 
althouojh its tendency is to criminate the other. The main 
reason is, that judgment of ac(juittal or conviction can not be 
used in evidence against or in favor of the husband, or wife, as 
the case may be, in the event of their subsequent indictment 
and trial. It would be res inter alios acta as to them. — State 
V. B?-id(/man (49 Vt. 202), 24 Am. Rep. 124; Moffii v. State, 
2 Ilnmph. (Tenn.) 99; 1 Greenl. Ev. § 342; 1 Archbold's Cr. 
Pr. & PI. (Pomerov) 472, [153*], note 1; 3 Russell's Cr. 
(9th Ed.), 630*; Stdte v. Briggs, (9 R. 1. 361), 11 Amer. Rep. 
270. As said in State v. Briggs, supra, its effect, at most, 
would be only as information, and not as evidence against the 
husband, because it could not be used as evidence against him 
in a subsequent direct proceeding. Nor does the wife's admis- 
sion as a witness violate the principles of public policy founded 
in the relation of husband and wife, " because she is not offered 
as a witness for or against him." — Moffit v. State (2 Humph. 
J99), 36 Amer. Dec. 301, 303. The broad rule, indeed, is 
Asserted by Mr. Greenleaf, that where the grounds of defense 
are several and distinct, and in no way dependent on each 
other, no reason is perceived why the wife even of one defend- 
ant should not be admitted as a witness for a co-defendant. 
1 Greenl. Ev. § 335. And this doctrine is supported by Mr. 
Wharton, with the qualification, of course, that it shall not 
apply in cases where the acquittal of one defendant shall 
operate necessarily as the acquittal of the other. — Whart. Cr. 
Ev. §§ 392, 445; United States v. Addate, 6 Blatchf. 76. 
Among the latter class of cases, may be enumerated the 
offenses of riot, conspiracy, adultery, and the like. — Moffit v. 
State, supra. 

The principle seems to be sound, and supported by authority, 
that in all such cases, where any co-defendant is admissible, his 
wife is also admissible, the husband not being a party, nor 
otherwise directly interested. — "Whart. Cr. Ev. (8th Ed.), §§ 
391, 445 ; Bell v. Coiel, 27 Amer. Dec. 448. 

We admit that there is a conflict of authority in reference 
to this question, and there are well considered decisions adverse 
to some of the views which we here express. But the better 
opinion, with the growing tendency of later judicial decisions, 
is believed to be in harmony with the conclusions reached by 
us. We may add, that, where the testimony of husband or 
wife, even in a collateral matter, tends to criminate the other, 
while it will be admitted, it seems that it will not be compelled. 
The more reasonable view is to admit such testimony, in all 
cases " where it can not be used as an instrument of future 
prosecution, provided the witness be not compelled to testify." 



40 SUPREME COURT [Dec. Term, 

[Woods V. The State.] 

1 Whart. Cr. Ev. §§ 432, 425 ; State v. Dudley, 7 Wis. 664; 
State V. Briggs, 11 Amer. Rep. 270, suj^ra. 

The court did not err in admitting the testimony of the 
witness, Milly Bennett. Her husband, although indicted origi- 
nally as a party defendant in the case, was no longer a party 
to the record ; the nolle-jyrosequi which had been entered, for 
the purpose of making a State witness of him, operating to 
discharge him from the prosecution, and as an acquittal, if he 
should testify truly and fairly upon the trial. — Marler v. State,' 
68 Ala. 580 ; Code (1876), § 4893. Tiie husband, although an 
accomplice, was a competent witness, and the wife was equally 
80, she interposing no objection. 

The third charge requested by the defendants, and refused 
by the court, raises the question as to whether the testimony of 
the wife of an accomplice may be legally regarded as a cor- 
roboration of the testimony of the accomplice himself, within 
the meaning of section 4895 of the Code, which prohibits a 
conviction of felony on the uncorroborated testimony of an 
accomplice. It has been held in an English case, comparatively 
modern, that confirmation by the wife is "no confirmation at 
all," the wife and the accomplice being only taken as one.— Rex 
V. Neal, 7 C. & P. 168; 3 Russell Cr.'(9th Ed.) 608. Mr. 
Phillips observes of this case, that its circumstances " might 
have been such as to warrant this decision." " But," he adds, 
" it may often happen, that the evidence of the wife is so free 
from suspicion, so independent of the evidence of the husband, 
80 manifestly unconcerted and uncontrived, and so undesignedly 
corroborative of his evidence, that it might be proper not to 
consider the acccomplice and his wife as one, but to act upon 
her evidence as sufficient corroboration." - 1 Phil. Ev. 33. 
The only ground upon which the rule declared in Rex v. Neal 
can be reasonably sustained, would seem to be, that the interests 
of the husband and wife are so nearly identical, and the domi- 
nation of the former over the latter so powerful and irresisti- 
ble, that she must necessarily be warped in her testimony by 
the potency of these considerations, regardless of the sanctity 
of her oath. There is much force in this view, but it is based 
rather upon theoretical than practical reasons, and finds little 
or no support among the adjudged cases in this country. It is 
a corollary from the proposition of the ancient common law, 
holding to the abrogation of the wife's legal entity by a com- 
plete merger of it into that of her husband, — a theory which 
has been modified by recent legislation, and the changed status 
of the wnfe, as wrought by the refining usage of a more cul- 
tured civilization. The wife, under our laws, may be the 
owner of her separate estate, in a more real sense tiian ever 
before. She may dispose of it by will, so as to cut off tlie 
Vol. lxxvi. 



1884.] OF ALABAMA. 41 

[Woods V. The State.] 

claims of her liusband, thus rendering her, to a great extent, 
financially independent of him. She may i)e declared a " free- 
dealer" by a court of chancery, so as to invest her with im- 
portant powers over her own property, whenever her interests 
require it. She may procure the removal of her husband 
from the trusteeship of her property, when his conduct shows 
him to be unfit for its management. So, she may be divorced 
from her husband upon the grounds of his cruelty to, or aban- 
donment of her. Nor is the husband's power of corporal 
punishment over her now recognized, as it seems to have been 
in the early history of the common law. The American 
authorities generally support the view, that the testimony of 
the wife may be a satisfactory and sufficient corroboration of 
her husband, who testifies as an accomplice, within the discre- 
tion of the jury, so as to warrant a conviction, in cases where 
such corroboration is requisite. The fact of the relationship, 
and the danger of marital doniination on the part of the hus- 
band, go, it is true, largely to assail the credibility of the wife, 
but not to her competency ; and the degree of weight which 
should be accorded to her testimony must be left to the juiy. 
It may sometimes constitute a very weak corroboration, yet it 
can not justly be said to be absolutely no corroboration at all. 
The case bears no similitude to that of an accon)plice, whose 
testimony, it has been held, can not confirm that of another 
accomplice in the same crime. — 1 Greenl. Ev. § 380 ; 3 Russell 
Cr. 609 ; Rex v. Noakes, 5 Car. & P. 326. The reason is, that 
each is contaminated by the turpitude of the same guilt, and 
the same infirmity therefore attaches alike to the testimony of 
both. This view is taken generally by the American courts, 
where the question has been considered and decided. — Dill v. 
The State, 1 Tex. Ct. App. 278 ; State v. Mmie, 28 Iowa, 128; 
Haskins v. The People, 16 N. Y. 314; 1 Bish. Cr. Proc. (3d 
Ed. 1880) § 1170. 

We need not consider the other two charges which were 
requested by the defendant, and refused by the court. The 
exception taken is a general exception to the refusal of the 
court to give the three charges requested. One of these 
charges being erroneous, and properly refused, -the general 
exception can not be sustained. — Stovall v. Fowler, 72 Ala. 77; 
Elliott V. Stocks, 67 Ala. 336. 

Tlie testimony of the witness Washington, as to the declara- 
tions made by the defendant Woods, was, in our opinion, ad- 
missible to show a motive for the commission of the offense 
charged. He declared his dissatisfaction with the settlement 
made between himself and Tunstall, involving the identical 
cotton which is the subject of the larceny ; saying that " he 
liad (/ot nothing out of his cotton, and that he was determined 



42 SUPREME COURT [Dec. Term, 

[Winslow V. The State.] 

to have satisfaction.''^ This language is susceptible of such 
construction as to announce a covert threat of reparation by 
means dishonest as well as honest. Its meaning was for the 
determination of the jur}'. The testimony of the witness Tun- 
stall, touching the same subject, though weaker than that of 
the witness Washington, had a like tendency to prove motive, 
and was also corroboi'ative of Washington's statement, and for 
this reason was admissible. — Morningstar v. The State, 55 Ala, 
148; Hudson v. The State, 01 Ala. 333. 

We find no error in the rulings of the court, and the judg- 
ment must be affirmed. 



Winslow V. The State. 

Indictmenl for Arson. 

1. Sufficiency of confessions, tvithout proof of corpus delicti. — In a 
criminal case, a conviction can not be had on the extra-judicial confe.s- 
sions of the defendant, without proof aliunde oi the corpus delicti ; but 
direct and positive proof of that fact is not indispensable. 

2. Same ; province of court and jury. — The sufficiency of the proof of 
the corpus delicti is not a question of law for the decision of the court, 
but a question of fact for the jury to decide ; and while the court must 
decide in the first instance, whether the evidence adduced is prima facie 
sufficient to go to the jury, the jury are not bound to hold it sufficient be- 
cause the court has admitted it. 

3. Arson ; ivhat is corpus delicti. — In a prosecution for arson, the 
corpus delicti is not the fact that a liouse was burned down, but that it 
was burned by the willful act of some person criminally responsible for 
his acts, and not by natural or accidental causes. 

4. Same ; sufficiency of preliminary proof. — Evidence showing that 
the fire occurred about midnight, at a part of the house in which no fire 
had been used during the day or night, and, when first discovered, was 
burning on the outside of the house; and that a fresh track was discov- 
ered the next morning, in a lane leading from the public road to the 
house, which track corresponded with the defendant's, is prima facie 
sufficient proof of the corjms delicti to render the defendant's confes- 
sions admissible as evidence. 

5. Defendant's threats and declarations ; when admissible as evidence 
against him. — The defendant's threats, or declarations in the nature of 
threats, before the commission of the offense charged, are admissible as 
evidence against him. 

6. Evidence tending to show motive ; proof of collateral fact. — If there 
was a controversy between the defendant and the occupants of the house 
burned, as to the ownership of the property, and it was shown that the 
defendant knew the occupants had a certificate of entry for the land, 
which certificate was in the house at the time of the alleged burning ; 
proof of these facts would be admissible, as tending to show a motive 
for the burning; but the fact being only collaterally and incidentally in 
issue, it would not be necessary to prove the entry by a certified tran- 
script. 

Vol. lxxvi. 



1884.] OF ALABAMA. 43 

[Winslow V. The State.] 

7. Charges asked and refused ; when revisahle. — Tlie refusal of charj^es 
asked, wliieh are not shown to have l)een asked in writin<^, is not a re- 
versible error; but, where the elerk certifies that the charges are on file 
in his office, and are marked Refused in the haiidvvritinj; of the presiding 
judge, this makes them a part of the record (Code, ^ 8109), and enables 
this court to revise their refusal, altiiough the bill of exceptions does not 
state that they were asked in writing. 

8. Char(/e on sufficiency of evidence. — A charge asked, which asserts 
that if, from the evidence, there is a probability of the defendant's inno- 
cence, he is entitled to an acquittal, asserts a correct legal proposition, 
and its refusal is error. 

9. Polling jury. — The statute secures to the defendant, in a criminal 
case, a right to poll the jury (Code, § 4920), in order to ascertain 
whether the verdict is unanimous; but, in polling them, inquiry can 
not be made into tlieir several reasons or motives for assenting to the 
verdict. 

From the Circuit Court of Pilce. 

Tried before the Hon. Jno. P. IIi'rbard. 

The indictment in this case charged tliat the defendant, 
Charles Winslow, " willfully set fire to or burned, in the night- 
time, a dwelling-house of Fred. Collins and Newberry Collins, 
in which there was at the time a human being." Issue was 
joined on the plea of not guilty. On the trial, a bill of ex- 
ceptions was reserved by the defendant, which purports to set 
out "substantially all the evidence in the case, so far as neces- 
sary to show the points reserved." It was proved that the 
house burned belonged to Fred, and Ts^ewberry Collins, witli 
their sister Fanny, all of whom lived in it ; and that it was 
destroyed by fire on the night of the fourth Saturday in June, 
1883. The house was thus described by said Fred. Collins, the 
first witness introduced by the prosecution : "The house was 
situated on the west side of the public road, and there was a 
lane, about thirty feet wide, leading from the road up to within 
a few yards of it. The main room was fronting the road, and 
was built of logs, and had a chimney in the north end. On 
the back of this room there was a shed room, built of planks, 
with a door entering it from the front room. This room was 
used as a bed-room, and its roof was lower than the front room. 
At the north end of the shed room was another room, built of 
logs, with a chimney on the north, built of sticks and dirt ; 
and these two rooms were connected by a door." Fred. Collins 
and his sister slept in the house the night on which it was 
burned, occupying two beds in the front room. He testified, 
that he retired about nine o'clock that night, leavinjj his sister 
still sitting up, with a lamp burning; that he was aroused by 
his sister between twelve and one o'clock, and found the house 
on fire; "that the fire was burning on the south end of the 
front room, near the south-west corner, and was entirely on the 
outside ; that he saw it through the cracks in the wall ; that it 
seemed to conimence about six feet from the ground, on the 



44 SUPREME COURT [Dec. Term, 

LWinslow V. The State. ] 

outside, and tlie blaze extended to the boards on the roof ;" 
that the roof of the shed-room soon fell in, and the entire house 
was consumed ; that there was no fire in either of the chimneys 
that night, and the family ate a cold supper. He testified, also, 
that it rained tiiat night, slowly, " until about eleven o'clock ;" 
that he found, on the next morning, " a bare-foot track in said 
lane, near the road, and on the south side of the lane ; that there 
were two tracks, that of the left foot being heavier on the out- 
side ; that he measured the length of the other track ; that 
there was sand on the grass in the lane, having the appearance 
of being left there by some person's feet ;" and that after the 
defendant's arrest, several weeks subsequent to tlie fire, being 
required to make his track in the sand, it corresponded in 
length with the measure so taken. At this point in the ex- 
amination of the witness, the prosecuting attorney asked him, 
" if he had in the house a paper purporting to be a certificate 
of entry to his father from the United States, and if it did not 
get burned in said fire ; to which question the defendant 
objected, for irrelevancy, and because there was higher evi- 
dence ;" and he reserved an exception to the overruling of his 
objections. " The witness answered, that there was such a 
certificate in the house, and it was burned up in the fire. It was 
in evidence, also, that such a certificate had been held by the 
father of said Collins, and that it was bnrned up in the fire ; 
also, that the defendant set claim to the forty acres on which 
the house was situated, and had procured a certificate of entry 
to it from the Government, and controverted the said Collins 
claim ; and that there was a contention as to who legally owned 
the land." 

Miss Fanny Collins, the next witness introduced on the part 
of the State, testified substantially as her brother had, as to the 
discovery of the fire, and the circumstances attending it ; and 
she further stated, that there was no fire in the house later than 
twelve o'clock in the day — that she did not cook supper that 
night, but made coffee on the live coals left in the fire-place, 
and lighted the lamp from the coals ; that she did not smoke a 
pipe just before going to bed that night, as was her habit at 
times ; and that she had not made any contradictory statements, 
as to these matters, to John Lane and others. Newberry Col- 
lins was also examined as a witness on the part of the State, 
and testified as to the measurement of the track on the morning 
after tlie fire, and its correspondence with the track subsequently 
made by the defendant ; but he stated, on cross-examination, 
that he left the house on foot, at nine o'clock on the niglit of 
the fire, through the lane, and returned on foot the next morn- 
ing ; and in this statement he was corroborated by his sister, 

Vol.. hxxvj. 



1884. J OF ALABAMA. 45 

[Winslow V. The State.] 

while Fred. Collins swore that he went and returned on horse- 
back. 

The State then introduced one Siler as a witness, who testi- 
fied to threats, or declarations, which he had heard the defend- 
ant make in June, 1883, a few weeks befoi'e the house was 
burned, to this effect : " The Collins hoys haveixH got Jim 
Winslow to fool with now,^' — it being shown that said Jim 
Winslow i)ad set up a claim to the land on which the house was 
built, but had afterwards abandoned his claim ; and, " Tlieir 
papers shmit cut against mine.''' The defendant objected to the 
admission of this evidence, " because the same was irrelevant 
and illegal, a!id because the corpus delicti had not been proved ;" 
and he excepted to the overruling of his objections. One An- 
drew Carlisle, a freedman, was afterwards introduced as a wit- 
ness on the part of the State, and testified that, in April, 1884, 
while he and the defendant were working together, the defend- 
ant "admitted to him that he had burned the house, and said 
that he took a gourd of kerosene oil, and went to the back end 
of the house that night, and ' gave a splllthroio, and touched a 
match to it., and it went hellwards!' " The defendant made the 
same objections to the admission of this evidence, and duly ex- 
cepted to the overruling of his objections. Other confessions 
and inculpatory declarations, said to have been made by the 
defendant subsequently to the burning of the house, were ad- 
mitted in evidence against him by the court, against similar 
objections, and exceptions were duly reserved by him to their 
admission. 

John Lane, a neighbor, who first reached the house on the 
night of the fire, was introduced as a witness by the defendant, 
and testified that, " while he was approaching, and when he got 
to the house, the whole of the cook-room was burning, and the 
top of the shed and the front room was burning ; that he asked 
Miss Fannie Collins, after he had been there awhile, how it 
caught on fire ; and that she replied, that she did not know, 
and that she cooked supper that night, and smoked her pipe 
before going to bed." This conversation, the witness said, was 
had in the presence of Fred. Collins ; but Fred. Collins and his 
sister, each, being interrogated, denied that she had made any 
such statements. The witness further stated " that he went to 
the fire bare-footed, and passed through the lane in a run ;" 
while Fred. Collins had testified, that said Lane " was wearing 
shoes when he came to the fire." Another witness for the de- 
fendant testified, that while he was at the place, on the day 
after the house was burned, '* he asked Miss Fannie Collins, 
how the house came to be burned ; and that she replied, ' site 
did not Ti'noio — that she zvas lying on the hed smoking that night, 
and went to sleep with the pipe in her mouth, and when she 



46 SUPREME COURT [Dec. Term, 

[Winslow V. The State.] 

awoke the house was on fire^ near the hed^ and it might have 
cavght from her p^jyeP This conversation was said by the 
witness to have taken place in the presence of Fred, and New- 
berry Collins, and it was denied by each of them. "After all 
the evidence was closed, the defendant again moved the court 
to exclnde from the .jury as evidence all declarations or confes- 
sions made by him, on the ground that the corpus delicti had 
not been proved ;" and he duly excepted to the overruling of 
his motion. 

The defendant asked numerous charges to the jury, which 
are not stated to have been asked in writing ; but, after the 
sul)mission of the cause m this court, and after the court had 
delivered an opinion affirming the judgment, and refusing to 
consider the charges refused, because the bill of exceptions did 
not show that they were asked in writing, the appellant sub- 
mitted the affidavits of his attorney and the clerk of the court, 
to the effect that the charges were asked in writing, were 
marked Refused by the presiding judge, and were on tile in 
the clerk's office. One of the charges was in these words : 
" 5. If there is a probability of the defendant's innocence from 
the evidence, the jury must acquit the defendant." An excep- 
tion was duly reserved to the refusal of each of the charges 
asked. 

The jury having retired to consider of their verdict, as the 
bill of exceptions further shows, and having returned into 
court on the next day with their verdict, " the defendant asked 
that the jury be polled, and it was done ; when one J. D. 
Smith, one of the jurors, being asked, ' Is this your verdict^ 
2iX\&\vere^, '■ Not exactly.'' The court then instructed the jury 
to retire again to consider their verdict ; to which the defend- 
ant objected," and he excepted to the overruling of his objec- 
tion. " The jury again returned into court, with the same ver- 
dict, and the defendant again asked that they be polled, which 
was done. Said Smith, being asked, ' Is this your verdict f 
answered, ' I agree to it.'' The defendant objected to the ver- 
dict being received, and asked the court to require said Smith 
to answer Yes, or No ; but the court refused to permit the 
juror to be further interrogated, and the defendant excepted." 

M. N. Carlisle, and Parks & Son, for the appellant, cited 
Mattheivs v. Th€ State, 55 Ala. 187 ; Burr. Cir. Ev. 119-20, 
722-3 ; Code, § 4910. 

Tiios. N. McClellan, Attorney-General, for the State. 

CLOPTOJ^, J. — The American authorities, generally, main- 
tain the principle, that a conviction should not be had on the 
Vol. lxxvi. 



1884.] OF ALABAMA. 47 

[Winslow V. The State.] 

extra-judicial confessions of tlie defendant, unsupported by any 
corroborating facts and circumstances ; proof aliunde^ of the 
corpus delicti^ is required. Our decisions are in harmony with 
tliis rule. — Mose v. State,, 36 Ala. 211 ; Matthews v. State, 55 
Ala. 187 ; Johnson v. State, 59 Ala. 87. While great caution, 
founded on experience in the administration of the criminal 
law, should be observed, that a person charged may not i)e 
punished for an alleged crime not actually committed, direct and 
positive evidence of the corpus delicti is not indispensable. 
Like any other fact, the sul)jectof judicial investigation, it may 
be proved by circumstantial evidence. — State v. Keeler, 28 lo. 
551 ; State v. Davidson, 30 Vt. 377 ; 1 Bish. Cr. Pro. § 1057 ; 
3 Greenl. on Ev. § 30. 

We can not assent to the proposition insisted on, that the 
sufficiency of the proof of the corpus delicti is a question for 
the court, and not for the jury. Greenleaf, in the section cited, 
observes : " The proof of the charge, in criminal causes, involves 
the proof of two distinct propositions : first, that the act itself 
was done ; and, secondly, that it was done by the person 
charged, and by none other — in other words, proof of the 
corpus delicti, and of the identity of the prisoner T The ascer- 
tainment that an offense has been committed, is as essential to 
conviction, as that the defendant is the guilty agent. Both of 
these essential propositions are for the determination of the 
jury, and both must be proved beyond a reasonable doubt. To 
hold that the court must decide ultimately either of these 
propositions, would be tantamount to a denial of the constitu- 
tional right of trial by jury. 

In Matthews v. State, supra, no evidence was offered by the 
prosecution, other than the uncorroborated confessions of the 
defendant ; and, as on these alone a conviction should not be 
had, it was held that they should have been excluded. Some 
preliminary testimony, tending to show the corpus delicti, 
should precede the admission of the confessions. The suffi- 
ciency of the preliminary proof of the voluntary character of a 
confession, which the law requires, is that it appear, prima 
facie, that the confession was voluntary. — Mose v. State, supra ; 
King v. State, 40 Ala. 314. And to render the acts, declara- 
tions and conduct of each person, in promotion of, and in rela- 
tion to the purpose of a conspiracy, admissible against a co-con- 
spirator, "a foundation must be laid, by proof sufficient, in the 
opinion of the presiding judge, to establish, prima facie, the 
existence of such conspiracy." — McAnally v. State, 74 Ala. 9. 
It is the province of the judge to determine, whether there is 
testimony sufficient to make it appear, prima facie, that a 
crime has been committed. The evidence on which the judge 
acts, may not necessarily establish the corpus delicti. It may 



48 SUPREME COUltT [Dec. Term, 

[Winslow V. The State.] 

be, and often is, conflicting and contradictory. In sncli case, 
the credibility of the witnesses, and the sutticiency of the entire 
evidence, are for the ultimate decision of the jury. In arson, 
the corpus delicti consists, not alone of a building burned, but 
also of its having been willfully lired by some responsible per- 
son. Burning by accidental and natural causes must be satis- 
factorily excluded, to constitute sufllicient proof of a crime 
committed. This degree of proof, though requisite to a con- 
viction, is not, however, antecedent and necessary to the admissi- 
bility of confessions. 

In this case, there was evidence tending to show a fresh track 
in the lane leading from the road to the house ; that this track, 
and the track of the defendant, corresponded ; that the fire, 
when first discovered, was burning on the outside, about six 
feet from the ground, at a part of the house in which there had 
been no fire during the night ; that the fire occurred about 
midnight, and spread so rapidly that only one bed and bedding 
were saved. While there was some conflict in tlie testimony, 
and there was evidence tending to show that the burning may 
have been accidental, the evidence tending to show the corpus 
delicti is sufiicient to lay a foundation on which to rest the ad- 
missibility of the confessions. 

The previous threats of the defendant, and his declarations 
in the nature of threats, were, on the same principle, properly 
admitted. While they are not, of themselves, convincing of 
guilt, from them, in connection with the other circumstances, 
if believed by the jury, guilt may be a logical sequence. 

The certificate of entry was collaterally and incidentally in 
issue, and was shown to have been burned. Its real existence 
was immaterial. If there was a controversy in respect to the 
entry and ownership of the land, and the defendant was pre- 
viously informed and believed that the occupants had a certifi- 
cate of entry in the house, such evidence is admissible, and 
may be considered, as tending to show a motive. — Woods v. 
State, at the present term ; ante p 35. For this purpose, a 
certified transcript of the certificate is not requisite. 

On the record, as first certified, we could not consider the 
charges asked by the defendant, and refused by the court, be- 
cause the bill of exceptions did not show the}- were in writing. 
The clerk has certified, that the charges copied in the bill of 
exceptions are in writing, and on file in his office, and each is 
indorsed Refused by the presiding judge. This made the 
charges a part of the record. — Mohile Sav. Bank v. Fry, 69 
Ala. 348. 

In Sain v. State, 74 Ala. 38, it was held, that a charge re- 
quested, in these words, " A probability of the defendant's 
innocence is a just foundation for a reasonable doubt of his 

Vol. lxxvi. 



1884.J , OF ALABAMA. 49 

[Phelanv. The State, ex rel. Rosenstok.] 

guilt, and, therefore, for his acquittal," asserts a correct legal 
proposition, and its refusal will work a reversal of the judg- 
ment. Williams v. State, 52 Ala. 411, which asserts a con- 
trary rule, was overruled. The fifth charge requested by the 
defendant, which asserts, if there is from the evidence a prob- 
ability of the innocence of the defendant, he is entitled to an 
acquittal, should have been given. The other charges are either 
in conilict with the rules we have above stated, or, from their 
phraseology, are calculated to mislead. 

Section 4920 of Code provides: "When a verdict is ren- 
dered, and before it is recorded, the jury may be polled, on 
the requirement of either party; in which case, they must be 
severally asked, if it is their verdict ; and if any answer in the 
negative, the jury must be sent out for further deliberation," 
The law secures to the defendant a unanimous verdict, and 
polling the jury is the means provided by the statute of ascer- 
taining that each juror agrees to the verdict. The motives 
which influenced, or the reasons that governed the juror, can 
not be inquired into. The statute authorizes the jury to be 
sent out for further deliberation, only when one or more answer 
in the negative. The answer of the juror expressed his agree- 
ment to the verdict, and thus it was shown to be the joint ver- 
dict of the entire jury. — State v. John, 8 Ired. 330. 

For the error mentioned, the judgment is reversed, and cause 
remanded. 



Phelan v. The State, ex rel. Rosenstok. 

Mandamus to Secretary of State. 

1. Public records; right to inspect and take copies of. — The books kept 
in the several public offices of the executive department of the govern- 
ment are open to inspection by any person having an interest therein, 
iiis lawful agent or attorney, except when some reason of public policy 
re(]uire8 that any particular matter, though of record, should not be made 
public for a time ; but a person who has i)een employed by a county sur- 
veyor, at a stipulated compensation, can not claim the right to make 
copies of the field-notes of the government survey of the lands in the 
county, from the l>ooks kept in the office of the Secretary of State. 

Appeal from the City Court of Montgomery. 

Tried before the Hon. Tiros. M. Arrtngton. 

This was an application by IT. E. Rosenstok, by petition, 
asking for a mandamiis directed to Ellis Phelan, as Secretary 
of State, requiring him to permit the petitioner to have access 
4 



50 SUPKEME COURT [Dec. Term, 

[Phelan v. The State, ex rel. Rosenstok.] 

to the public records kept in liis office, and to copy from the 
books containing^ the field-notes of the govern tnent survey the 
field-notes of all the lands in Crenshaw county, which, as « the 
petitioner alleged, he was employed to make by the county 
surveyor of that county, at an agreed compensation of $5(), 
and which the secretary refused to allow him to make. The 
respondent demurred to the petition, and moved to quash it ; 
and his motion and demurrer being overruled, he tiled an 
answer, admitting his refusal, and denying the petitioner's right 
to make the copies demanded. A demurrer was interposed to 
this answer, w^hich, as the judgment is copied in the transcript, 
was overniled, and a peremptory inandatnus awarded. The 
overruling of the demurrer to the petition, the sustaining of 
the demurrer to the answer, and the judgment ordering a per- 
emptory tnandamus to issue, are now assigned as error. 

H. C. Tompkins, and T. N. MoClellan, for appellant. 

Smith, Macdonald & Marks, contra. 

STONE, C. J.— In Brewer v. Watson, 61 Ala. 310, this 
court, after stating that any citizen has the right to inspect the 
records of judicial proceedings in the courts of the country, 
added, that "books kept in the public offices of the executive 
department are not — at least all of them — equally open to ex- 
amination." — 1 Greenl. Ev. §§ 471, 475. The qualification of 
the rule is, that no person can demand this right, save those 
who have an interest in the record, their lawful agents, or at- 
torneys. The uses lor which public records are kept, the wel- 
fare of the public, and the nature of our institutions, all go to 
show that this right of free inspection should not be withheld, 
unless there be some reason of State policy which ma}', for a 
time at least, render it proper that some matter, even of record, 
be not made public. — 1 Greenl. Ev. §^ 250. 475-6; King v. 
Shelley, 3 T. R. 141 ; King v. Allgood, 7 T. R. 746. The 
record in question is not of this class. 

The tract-books of the public lands, containing the field- 
notes of the authorized, public survey, are very important to 
the whole people, as furnishing the means of identifying, de- 
termining and preserving the boundaries of the many landed 
estates, into which the public domain is divided. There are, 
probably, no public records in which so many of the State's 
inhabitants have an interest. Of these, any one having an in- 
terest has, and should have, a right of inspection, without :fee 
or charge. Whether the right extends beyond the mere right 
of looking at the record, we liave found no adjudged ease that 
determines. It would seem, however, that no reasonable argu- 

VOL. LXXVI. 



1884.] OF ALABAMA. 61 

[The State v. McBride.] 

inent can be urged, wliy persons having an interest in a par- 
ticular tract, or tracts, should be denied the privilege of making, 
or having made, memoranda for his own uses. This question 
is not raised by this record, and we need not decide it. 

The relator in this case claimed the right to copy from said 
books all the field-notes of survey of all the lands in Crenshaw 
county. This claim was based, not on any right or interest he 
had or claimed in the lands, nor in the right of any other per- 
son claiming an interest in the lands. His claim is rested on 
the fact, that the county surveyor of Crenshaw county hired 
him to make the copy, for a stipulated compensation. The 
length of time that would be required to make such copy, we 
have no means of knowing. It would probably i-equire many 
days, if not several weeks. There is no authority, under the 
law, for removing the records from their rightful custody. 
The law places them in the keeping of the Secretary of State, 
and there they must remain, for more reasons than one. He 
alone is responsible for their safe custody, and in his office the 
public have the clear right to have them kept, so as always to 
know where they can be found for inspection. And the de- 
mand on the Secretary of State, for certified copies from such 
books, may be of daily occurrence. There being, then, no au- 
thority to remove the books of record, can it be that the Secre- 
tary of State is required to furnish such copyist for private 
emolument house and desk-room, for performing the work this 
contract contemplated ? In considering this question, we 
should bear in mind that, if one have such right, many may 
claim it at the same time, and thus fill the rooms allotted to 
the Secretary with incumbering copyists having no connection 
with the office, nor with its official duties. 

We hold, that the right claimed does not fall within that 
beneficent, yet narrower right of inspection, and that the City 
Court erred in granting the relief prayed for. 

The judgment of the City Court is reversed, and a judgment 
here rendered, dismissing relator's petition. Let the costs of 
this proceeding, both in the court below and in this court, be 
paid by the relator. 



The State v, McBride. 

Bill in Equity hy State^ against Defaulting Tax- Collector' and 
Sureties on Official Bond. 

1. Summary judgment against defaulting tax-collector and his sureties ;» 
repeal of statutes omitted from Code of 1876 ; exception as to existing ac- 



52 SUPREME COURT [Dec. Term, 

[The State v. McBride.] 

tions, rights, and remedies. — The statutory provisions givin<r a summary 
remedy by notice and motion, in the Circuit Court of ^Montgomery 
county, against a defaulting tax-collector and the sureties on his official 
bond (Rev. Code, §§ 3059-60), having been omitted from the Code of 

1876, are no longer in force ; but, bj' express exception (§ 10), this repeal 
not affecting " any existing right, remedy, or defense," as to which the 
former statutes are continued in force, the summary remedy may be 
pursued where the default occurred before the Code of 1876 became 
operative. 

2. Same ; conclusiveness of judgment. — A judgment by default, in a 
summary proceeding against a tax-collector and the sureties on his 
official bond, ia conclusive as to the amount then due from the collector 
to the State; and neither he nor his sureties can, in any subsequent liti- 
gation with the State, claim credits which might have been set up in de- 
fense of that suit. 

3. Interest against tax-collector ; burden of proof as to credits. — The 
tax-collector being required to make a final settlement with the auditor 
on or before the first day of May, for the taxes of the preceding year 
(Code, § 414), he and his sureties are liable for intere.st on the amount 
due from that day ; and being prima facie chargeable with the full 
amount of taxes shown by the assessment-books, tl^e onus is on him to 
show credits to which he was entitled, but which were not allowed on 
the ex-parte statement of his accounts by the auditor. 

4. Credits for errors and insolvencies ; equitable relief against statutory 
requirements. — The statute having prescribed the mode and the time at 
and in which the collector must present and claim credits, or an abate- 
ment of the amount of taxes with which he stands prima facie charge- 
able, on account of errors and insolvencies (Code, § 241) ; if he fails to 
comply with this requirement, he can not afterwards claim these credits, 
when sued in equity, because the assessor's books were not delivered to 
him in sufficient time to enable him to comply with it. The general 
principle applies, that a court of equity can not grant relief against an 
express statutory provision, involving a matter of public policy. 

5. Exceptions to register's report. — P^xceptions to the register's report 
under a reference, not accompanied with proper references to those parts 
of the evidence relied on to sustain them, as required by the rules of 
practice (Rule No. 93; Code, p. 174), are properly overruled. 

Appeal from the Chancery Court of Lawrence. 

Heard before tlie Hon. Thomas Cobbs. 

The bill in this case was filed, on the 26tii August, 1881, in 
the name of the State of Alabama, against J. K. McBride, tax- 
collector of Lawrence county during the years 1875, 1876 and 
1877 ; and against the sureties on his official bond as such col- 
lector, and several other persons who held or claimed property 
which, as the bill alleged, was liable for the default charged 
against said McBride ; and it sought a discovery from the sev- 
eral defendants as to those different pieces of property, an ac- 
count against the collector and his sureties for alleged defaults 
in the payment of taxes collected or due for the years 1876 and 

1877, and a decree condemning the property to the satisfaction 
of the amount ascertained to be due. For the alleged default 
as to the taxes for the year 1876, a judgment by default, in a 
summary proceeding by notice and motion, was rendered in the 
Circuit Court of Montgomery, on the 3d June, 1878, in the 

Vol. lxxvi. 



1884.] OF ALABAMA. 53 

[The State v. McBride.] 

name of Willis Brewer, as auditor of public accounts, for tlie 
use of the State, against the said McBride and the sureties on 
his official bond, for s4,(l44,27, " with interest and damages 
thereon," amounting in all to $5,515.87; and a copy of this 
judgment, as "Exhibit B," was made a part of the bill. Certi- 
fied statements of the collector's account with the State for the 
years 1876 and 1877 respectively, as made out by the auditor 
from the records of his office, were also appended to the bill, 
as exhibits "G" and "D" resjiectively ; the balances thereby 
shown against him being $4,044.27 for the year 1876, and 
$2,659.71 for the year 1877. 

Answers were filed by the several defendants, denying the 
validity of the said judgment, and alleging that, on a full and 
fair statement of the collector's accounts, a balance would be 
found in his favor; and they specified various items for which 
credits were claimed, but which were not allowed in the 
auditor's statements of the accounts. Among the items so 
specified were the following : $3,500 paid to the county school 
superintendent, at different times, on the warrants of the 
auditor, instead of $2,000 as allowed by the auditor; $324.96, 
as "errors in account for 1875," which was alleged to have 
i)een entered by the auditor as a debit, instead of a credit ; 
$365.66, for interest on State obligations received in payment 
of taxes ; $212.40, on account of insolvent poll taxes ; the 
several items for the year 1876 aggregating $4,228.75, and 
showing a balance of $184.48 in favor of the collector. Of 
the taxes for the year 1877, a credit was claimed for $2,950.50, 
" turned over by said McBride, at the end of his term, to S. 
D. Houston, his successor in the office of tax-collector ;" 
$280.50, paid to D. C. White, county school superintendent, 
on warrants of the auditor ; and other items, aggregating 
$3,468.21, and showing a balance of $555.54 in favor of the 
collector. In excuse of any apparent neglect or default, the 
answer of McBride contained the following allegations : " The 
trouble in respondent's said official term has grown, mainly, out 
of two circumstances, which he could not control, and in 
respect to which the complainant, through her officers, has 
been in default. These are — 1st, that the tax-books for the 
year 1876 were not furnished to him as soon as the law con- 
templates and directs, and, by reason of this default, respondent 
did not have sufficient time to make his collections, and ascer- 
tain the list of insolvencies, in time to have the saine allowed 
by the court of County Commissioners ; and, 2d, that said 
books were so deficient, imperfect, and inaccurate, that the full 
taxes could not be collected by them." 

The cause being submitted for a decretal order of reference, 
by consent, the register was ordered to state the account for 



54 SUPREME COURT [Dec. Term, 

[The State v. McBride.] 

the year 1876 " in a double aspect" — that is, 1st, assuming the 
judgment to be valid and conclusive; and, 2d, disregarding it, 
" charging the collector with all proper charges, as shown by 
the report of the auditor and other legal testimony, and cred- 
iting him with all proper credits;" and in stating the account 
for the year 1877, he was ordered to " charge said McBride 
with all proper charges, and credit him with all proper credits." 

Under this order of reference, the register reported — Ist, as 
to the taxes for the year 1876, assuming the judgment to be 
valid, the balance against the collector, after deducting credits 
to which he was entitled, was $1,413.95, and, disregarding the 
judgment, a balance of $475.20 resulted in his favor ; and as 
to the taxes for the year 1877, a balance of $629.05 was due 
to the collector. To the report and account as thus stated, the 
complainant reserved the following (with other) exceptions : 

1. For that the register allowed said McBride a credit of 
$3,650, as paid to D. C. White, school superintendent, being 
$2,150 more than was allowed by the auditor on the settlement 
for the taxes of 1876 ; " whereas he should only have allowed 
$1,500 as a proper and legal credit. — See Exhibits C and D to 
bill, and depositions of McBride and White." 

3. For that the register allowed a credit for $189.96, 
" amount of supplemental tax not allowed by the auditor (see 
3d item in statement of account for 1876) ; whereas said sum 
should not have been allowed, nor any other sum in lieu 
thereof." 

4. For that the register allowed a credit for $413.50, " excess 
of polls assessed and given said McBride for the year 1876, and 
mentioned in the 4th item of the statement of account for 
1876; whereas he should not have allowed said sum, nor any 
part thereof. — See Exhibits C and D to bill." 

5. In allowing said McBride a credit for $212.40, "in- 
solvent polls, for which no credit was allowed on settlement 
with auditor, mentioned in 5th item of statement of account 
for 1876 ; whereas said sum should not have been allowed, 
nor any other sum in lieu thereof. — See Exhibits C and D to 
bill." 

6. In allowing McBride a credit for $91.94, "as mentioned 
in the 6th item of the statement of the account for 1876 ; 
whereas he should not have allowed said sum, nor any other 
sum in lieu thereof. — See Exhibits C and D to bill." 

7. In allowing McBride a credit for $649.92, "excess of 
credit over debit for 1875, mentioned in 8th item of statement 
of account for 1876; whereas said sum should not have been 
allowed as a credit, nor any other sum in lieu thereof. — See 
Exhibits C and D." 

9. In allowing a credit for $140.72, " mentioned in 10th 
Vol. lxxvx. 



1884.J OF ALABAMA. 55 

[The State V. McBride.] 

and last item of statement of account for 1876 ; wliich said 
sum ought not to have been allowed, nor any other sum in 
lieu thereof. — See Exhibits C and 1) to bill." 

10. In allowing a credit for .$2,950.50, " tax-list turned 
over to S. D. Houston, and mentioned in 1st iten) of statement 
of account for 1877; whereas said sum should not have been 
allowed, nor any part thereof. — See Exhibits C and D to bill, 
and McBride's testiniony." 

11. In allowing a credit for §116.21, " mentioned in 2d item 
of account for 1877; also, to allowance of $39, in third item 
of said account ; also, to credit for $280.50, mentioned in 4th 
item of said account ; also, to allowance of $82 as credit, men- 
tioned in 5th item of said account ; also, to allowance of $148.51, 
mentioned 'in 6th item of said account. The register should 
not have allowed a credit for any of said sums. — See exhibits 
to bill." 

12. "In the statement of the account of 1876 by the reg- 
ister, making said judgment the basis of his report, complain- 
ant excepts to the allowance of a credit for $2,150, with interest 
thereon, as shown in 1st item of said account ; also, to credits 
allowed for $365.66 and $23.29, with interest thereon, $125.12, 
as shown in 2d item; also, to allowance of credit for $189.96, 
with interest thereon, as shown in 3d item ; also, to allowance 
of credits for $413.50 and $212.40, with interest thereon, as 
shown in 4th item ; also," to credits shown by 5th and 6th 
items, in similar words. " The register should not have allowed 
any of said items as credits, nor any sum in lieu thereof ; and 
complainant excepts to the action of the register in going be- 
hind the judgment, and in allowing any of said credits." 

13. For that the register "failed to charge said McBride 
with interest on the amount shown to be due by the certified 
transcript from the books of the auditor — to- wit, $4,044.27 
for the year 1876, and $2,975.71 for 1877. — See exhibits to 
bill." 

The chancellor overruled these exceptions, and confirmed 
the register's rulings ; and he further held that the judgment 
was void. The account being re-stated, discarding the judg- 
ment entirely, the register reported a balance of $655.15 in 
favor of said McBride ; and this report being confirmed, the 
chancellor rendered a final decree dismissing the bill. 

The overruling of the complainant's several exceptions above 
set out, the decree holding the judgment void, and the final 
decree, are now assigned as error. 

Thos. N. McClellan, Attorney-General, and C. C. Harris, 
for appellant. — (1.) The repeal of the statutory provisions giving 
a summary remedy by notice and motion, in the Circuit Court 



56 SUPEEME COURT [Dec. Term, 

[The State v. McBride.] 

of Montgomery, against a defaulting tax-collector and his sure- 
ties, by their omission from the Code of 1876, does not affect 
the validity of the judgment rendered against McBride and his 
sureties. The default occurred prior to the repeal of these 
provisions, and the right to pursue this summary remedy was 
expressly reserved by the 10th section of the Code. As to 
vested rights, this section was entirely unnecessary, since they 
are within the constitutional guaranty against subsequent ad- 
verse legislation ; but it expressly applies to existing remedies 
for existing rights, and, as to them, continues the former laws 
in force. As to the construction and effect of similar statutory 
provisions, see Brothe7'tonv. Brotherton, 4:\ Iowa, 114 ; Woj'ds- 
worth V. Wordsivorth, 40 Iowa, 450 ; 41 N. J. Law. 45S ; 10 
Wendell, 98 ; 11 Wendell, 167 ; 4 Denio, 374 ; 2 Sandf. 231, 
636 ; 10 Kans. 115 ; 11 Kans. 52 ; 77 Indiana, 227 ; Hart v. 
Jioss, 64 Ala. 96. (2.) The judgment being valid, it is con- 
clusive as to all items of debt and credit entering into the 
account for the year 1876 ; and the court below erred in allow- 
ing or inquiring into any items embraced in that account. (3.) 
The allowance of a credit to McBride for $2,950.50, " amount 
of tax-lists turned over to Houston," his successor in office, is 
a palpable disregard and violation of the statutory provisions 
regulating the duties and liabilities of tax-collectors. A col- 
lector is chargeable, 'prhna facie^ with the full amount of taxes 
shown by the assessor's books. — Lott v. The State, 69 Ala. 147 ; 
Timberlake v. Brewer, 59 Ala. 118. The manner in which he 
may relieve himself and his sureties from this liability, on ac- 
count of " errors and insolvencies," is particularly prescribed. 
Code, § 421. The fact that the books were not delivered to 
him by the assessor, in time sufficient to enable the County 
Commissioners to pass upon these matters, can not excuse him 
or his sureties. He might have had a mandamus against tlie 
assessor, or might maintain an action on his bond ; and his 
failure to resort to these remedies is negligence, which can not 
excuse his own default. As to any hardship he or his sureties 
may suffer on account of these taxes turned over to his succes- 
sor, a special remedy has been given to him by act of the 
General Assembly. — Sess. Acts 1878-9, p. 485. (4.) The 
judgment being conclusive as to all matters of account included 
in the taxes of 1876, the only remaining items are in the ac- 
count for 1877; and tlie complainant relies, as to tliem, on tlie 
several exceptions to the register's report. 

W. P. Chitwooi), contra. 

SOMERVILLE, J.— The chancellor erred, we think, in 
holding the judgment recovered in the Circuit Court of Mont- 

VOI,. LXXVI. 



1884.] OF ALABAMA. 67 

[The State v, McBride.] 

goinery county, against McBride and the sureties on his official 
bond as tax-collector, to be a void judicial proceeding. The 
case of Carmichael v. Hays, 66 Ala. 548, is authority, it is 
true, for the proposition, that sections 3059-3060 of the 
Ilevised Code of 1867, under which this summary judgment 
was recovered, are no longer a part of the general code of 
laws of the State ; the omission to incorporate them in the 
Code of 1876, at the time of its adoption, operating to repeal 
them. The case of Ulmer v. The State, 61 Ala. 208, cited by 
appellees' counsel, goes no further. 

The question now before us was not considered or decided 
in either of those cases, because it was not involved. The 
rights of the State in this cause accrued prior to the adoption 
of the Code of 1876, and, therefore, prior to the repeal of 
these sections of the Code of 1867. The inquiry now is, 
whether the remedy afforded the State by these sections is not 
preserved by section 10 of the present Code, which reads as 
follows : " This Code shall not affect any existing right, 
remedy, or defense ; nor shall it affect any prosecution now 
commenced, or which shall be hereafter commenced, for any 
offense already committed. As to such cases, the laws in force 
at the adoption of this Code shall continue in force. Local, 
private, or special statutes, and those public laws not of a 
general and permanent nature, and those relating to the militia, 
are not repealed by this Code. But, subject to the foregoing 
provisions, all statutes of a public, general and permanent 
nature, not included in this Code, are repealed." 

This section is so plain in meaning, as scarcely to admit of 
any room for construction. It means, most obviously, that 
past transactions, both civil and criminal, must be governed by 
past laws, or such laws as were in force at the adoption of the 
present Code ; that, as to existing cases, whether in suit or not, 
existing laws should be continued in force, as if they had never 
been repealed. Not only is the legislative intention thus clearly 
expressed, but it is emphasized, as if from abundant caution, by 
the declaration, that the new order of things should "not affect 
any existing right, remedy or defense." The effect of this 
section was to preserve to the State the benefit of the remedy 
resorted to in this case, as conferred by sections 3059 and 3060 
of the Ilevised Code of 1867 ; the rights against the defend- 
ants having accrued prior to the repeal of these sections as a 
part of our general code of laws adopted in the year 1877. — 
Hart V. Ross cfe Garner, 64: Ala. 96. 

It was not permissible for the register to go l)ehind this 
judgment, in order to allow to this collector any payments, or 
deductions, not allowed him by the Auditor in his statement of 
the account for taxes collected for the year 1876. The judg- 



58 SUPREME COURT [Dec. Term, 

[The State v. McBride.] 

ment was conclusive as to all these matters of defense, involving 
credits of every description. The collector was required by 
statute to make a tinal settlement with the Auditor, on or be- 
fore the first day of May, of all his tax transactions of the year 
preceding.— Code, 1876, § 414. In this final accounting, the 
collector x's, jyriiaa facie chargeable with all the taxes shown by 
the assessment-book to be due the State ; and whatever credits 
he may be entitled to under the statute — whether for payments 
already made, for fees and commissions, for errors and insol- 
vencies, for lands bought in for the State, or for any authorized 
expenses incurred for advertisements or otherwise — he is re- 
quired to present and claim as credits at this time, and to pay 
over to the Treasurer the balance of the State taxes which he 
may have collected, after the allowance of such credits as he 
may be entitled to by law. 'I'he settlement would be partial, 
not final, if this were not so. — Code, 1876, §§ 414, 421 ; State 
V. Zott, 69 Ala. 147 ; Timberlake v. Brewer, 59 Ala. 108. 

The evidence shows that the defendant McBride failed to 
make the settlement with the Auditor on or before the first .day 
of May, which he was thus required to do by law. Hence, a 
suit was commenced against him and his sureties, by summary 
motion, in which the judgment in controversy was recovered in 
June, of the year 1878. The purpose of this legal proceeding 
was to coerce by law the making of the final settlement which 
McBride had neglected to make voluntarily, and thus to bring 
him and his bondsmen to an accounting with the State. If he 
or they had appeared, they might, by making proper defense, 
have secured the benefit of all credits, perhaps, to which they 
would have been entitled had the accounting have been with 
the Auditor in the manner required by law. No appearance 
was made, however, and a judgment of default was suffered by 
all of the defendants. This precludes the defendants from all 
credits, not allowed by the Auditor, which it would have been 
the duty of the collector to have claimed in the voluntary set- 
tlement. The judgment is res adjudicata as to all these, be- 
cause they would iiave been necessarily involved, if the case 
had been litigated, and a failure to present them is an estoppel 
against now asserting any right to them in this proceeding. 
Bohe V. Stickney, 36 Ala. 482 ; Freeman on Judg. §§ 286, 272 ; 
2 Brick. Dig. 145, § 205, The determination of these credits 
being required by law to be involved in the settlement, or ac- 
counting, which was necessary in order to ascertain the balance 
due by the collector, and upon which the judgment was based, 
it was immaterial whether they were actually claimed, or were 
litigated or not, — Baker v. Cleveland, 19 Mich. 230. 

What we have said above disposes of the consideration of all 
the tax transactions involved between the State and the defcnd- 

VOL. LXXVI. 



1884.] OF ALABAMA. 59 

[Tlie State v. McBride.] 

ant McBride, for and during the year 1876. We proceed fur- 
ther to consider tlie principles which seem to govern the ac- 
count for the ensuing year, 1877. 

The tax-collector and the sureties on his official bond would 
be liable to the State for lawful interest on the balance due by 
him on the first day of May, 1878, which was the last day 
allowed by law for liis final settlement of tiie tax'es of the pre- 
ceding year ; the collector being chargeable, prima facie, as 
we have before said, with all taxes shown by the assessment- 
book to be due to Ihe State. The burden is thus cast on the 
collector to prove all credits which the Auditor may have failed 
to allow him, and to which he is lawfull}' entitled. This was 
settled in the case of The State v. Lott, 69 Ala. 14:7 ; and in 
Timherlake v. Brewer, 59 Ala. 108 ; Code, 1876, § 414. 

No credit, in our opinion, should have been allowed the col- 
lector, as was done i)y the chancellor, for the amount due for 
uncollected taxes turned over by him to his successor in office. 
This sum is shown to be two thousand nine hundred and fifty 
50-100 dollars. The statute prescribes the only authorized 
mode, in which the collector can relieve himself from his lia- 
bility to collect such taxes, whether occasioned by the insol- 
vency of the persons assessed, or errors in assessment. Section 
421 of the Code requires, that the collector should report a list 
of insolvents, and of errors in assessment, to the court of 
County Commissioners, at the April term of each year, which 
must be under oath. This report is required to be subjected to 
"a rigid and searching examination" by this tribunal, which, 
after making proper corrections, is authorized to credit the col- 
lector with the taxes due the county, as they appear on such 
corrected lists ; and the probate judge is then required to cer- 
tify such lists to the Auditor, '' who shall allow the collector 
credit therefor on his final settlement for the State taxes due 
thereon." — Code, 1876, § 421. After these proceedings, the 
authority of the collector to collect the taxes due upon such 
lists is abrogated, and the probate judge is required to place 
them in the hands of notaries public and justices of the peace 
in tiie various beats of the county, who are thus constituted as 
to such lists, j/ro hac vice, tax-collectors, and clothed with all 
necessary powers for this purpose. — Code, § 421. 

It is not insisted that the tax-collector has conformed to the re- 
quirements of this statute. The contrary is shown by the evi- 
dence, and is candidly admitted. The argument made, however, 
is, that the tax-assessor of Lawrence county failed to turn over 
the assessment-books in sufficient time for the collector to dis- 
charge the duties required of him by law, so that he could not 
make a report of such list of insolvencies, or errors of assess- 
ment, under oath, to the April term of the Commisioners 



60 SUPREME COURT [Dec. Term, 

[Mangan v. Tlie State.] 

Court. This affords no fifronnd upon which a court of chancery 
can grant the desired relief to the party in default. The pen- 
alty complained of is visited by the statute ; and the rule is 
well settled, that " a court of equity has no power to disregard, 
or set aside, the express terms of statutory legislation, however 
much it may interfere with the operation of common-law rules." 
1 Pomeroy's Eq. Jur. § 458. Such courts, in other words, have 
no power to grant relief which is repugnant to both the policy 
and terms of an express statute. The exercise of such a juris- 
diction might lead to the abrogation of any statute, by except- 
ing supposed " hard cases" from the operation of conditions or 
penalties imposed by its provisions, and would thus be, to use 
the language of Mr. Story, '' in contravention of the direct ex- 
pression of the legislative will." — 2 Story's Eq. Jur. (12tli Ed.) 
§ 1326. 

We do not consider the other exceptions to the register's re- 
port, which were overruled by the chancellor. They were 
properly overruled, if for no other reason, on the ground that 
the appellant failed to note the evidence, or parts of evidence, 
relied on in support of these exceptions, " with such designa- 
tion, and marks of reference, as to direct the attention of the 
court to the same," as required by the 93d Rule of Chancery 
Practice. — Code, 1876, p. 174 ; Mooney v. Walter, 69 Ala. 75 ; 
Mahone v. Williams, 39 Ala. 202 ; Crump v. Crump, 69 
Ala. 156. 

The decree of the chancellor, being erroneous in the particu- 
lars above pointed out, must be reversed, and the cause re- 
manded. 



Mangan v. The State. 

Indictment under Local Statute for Buying Seed-Cotton. 

1. Legislative power ; local laws. — Except as restrained by constitu- 
tional provisions, State and Federal, the General Assembly has the same 
plenary power of legislation as the British Parliament, subject to the 
(jualification that the power is purely legislative in its character; and 
there is no constitutional inhibition upon the power to enact laws opera- 
ting only within certain designated boundaries or counties, different 
from the general laws operating in other portions of the State. 

2. Local lavi prohibiting transportation of seed-cotton bij night. — The 
secoUd section of the special statute approved February 1st, 1879 (Sess. 
Acts 1S78-9, p. 20G), prohibiting the transportation by night, within the 
counties and boundaries specified, of "any cotton in the seed," is a 
legitimate exercise of the police power, is not an unauthorized interfer- 
ence with the rights of private property, and is not violative of any con- 

VOL. LXXVI. 



1884.] OF ALABAMA. 61 

[Mangan v. The State.] 

stitutional provision. (Re-affirining Davis v. The State, 68 Ala. 58-65.) 
3. Local law prohibiting sale of seed-cotton. — The first section of said 
special statute, which makes it " unlawful for any person to sell, or ofier 
for sale, haiter, exchange or buy," within the counties and boundaries 
specified, •' any cotton in the seed," or elsewhere to buy, sell, &c., any 
cotton in the seed raised within said counties, is also a legitimate exer- 
cise of the police power, is not an unauthorized interference witli the 
rights of private property, and is not violative of tlie Fourteenth Amend- 
ment to the Federal constitution, nor of the 37th section of the Declara- 
tion of Rights in the State constitution. 

From the Circuit Court of Lowndes. 

Tried before Hon, John Moore. 

Tlie indictment in this case charged, in the first count, that 
the defendant '' did Icnowingly buy, in said county of Lowndes, 
cotton in the seed, the property of J. C. Light ;" in the second 
count, that lie " did knowingly buy, in said county of Lowndes, 
from Frank Wright, cotton in the seed, the property of J. C. 
Light;" in the third, that he did " knowing]}' buy, in said 
county of Lowndes, from Frank Wright, cotton in the seed, 
which said cotton was produced in Lowndes county, and was 
the property of J. C. Light ; " and in the fourth, that he " did 
knowingly buy, from Frank Wright, cotton in the seed, which 
was produced in the county of Lowndes, and was the property 
of J. C. Light." There was a demurrer to the indictment, on 
the ground that the special statute under which it was framed 
is unconstitutional ; but the record does not show any action of 
the court upon it. After conviction, the defendant moved in 
arrest of judgment, " on the ground that the indictment charges 
no offense ;" and the overruling of this motion is here urged 
as error. 

The statute under which the indictment was found is enti- 
tled " An act to prevent, in certain cases, the sale, exchange, 
and transportation of cotton, in the counties of Montgomery, 
Bullock, Dallas, Russell, Lowndes, Wilcox, Sumter, Autauga, 
and in beats Nos. one, two, three, four, five, six, seven, eight 
and nine of Hale, and of cotton produced in said counties," 
approved February 1st, 1879; the first section of which is in these 
words : " Be it eiiacted" &c., " that it shall not be lawful for 
any person to sell, or offer for sale, barter, exchange or buy, in 
the counties of Montgomery, Bullock, Dallas, Russell, Lowndes, 
Sumter, Autauga, and in beats Nds. one, two, three, four, five, 
six, seven, eight and nine of Hale, any cotton in the seed, or, 
buy any cotton in the seed which is produced in the counties 
of Montgomery, Bullock, Dallas, Russell, Lowndes, Wilcox, 
Sumter, Autauga, and in beats Nos. one, two, three, four, five, 
six, seven, eight and nine of Hale ; pt'ovided, this section shall 
not be construed to apply to any sale of cotton made under any 
legal process, or under the order of any court, nor to any sale 



62 SUPREME COUET [Dec. Term, 

[Mangan v. The State.] 

of cotton at public auction in any mortgage or deed of trust, 
nor to the delivery or surrender of cotton by any tenant to his 
landlord in payment of his rent or advances, nor to cotton de- 
livered by one tenant in common or joint tenant to another on 
division of the crop."— Sess. Acts 1878-9, pp. 206-7. 

E. M. Williamson, and W. C. Griffin, for appellant. — The 
first section of the local law, under which this indictment was 
framed, contains two restrictions upon the right to dispose of 
cotton in the seed : Ist, its sale, barter, &c , within the desig- 
nated districts, no matter where it was raised ; 2d, tlie sale, &c., 
elsewhere, of any cotton in the seed raised within those par- 
ticular boundaries ; and each of these inhibitions, it is insisted, 
is a palpable violation of the citizen's right to dispose of his 
property. The right to enjoy his property' goes far beyond 
the mere possession or personal use of it, and necessarily in- 
cludes the right to sell and dispose of it. Cotton is raised, as 
the court judicially knows, almost exclusively for sale ; and to 
take away the right to sell it affects its marketable value, and 
amounts to confiscation. " The sole object and only legitimate 
end of government is to protect the citizen in the enjoyment 
of life, liberty, and property; and when the government as- 
sumes other functions, it is usurpation and oppression." — Const. 
Ala. 1875, art. i, § 37. The case of Dorrnan v. The State, 34 
Ala. 216, if it can be justified under the constitutional provi- 
sions then in force, can not stand the test of the more cautiously 
worded provisions since adopted, and the additional safeguards 
thrown around private rights by the Fourteenth Amendment 
to the Federal constitution. — Railroad Co. v. Morris., 65 Ala. 
193 ; Green v. The State, 73 Ala. 26 ; Joseph v. Randolph, 71 
Ala. 499 ; Cooley's Const. Lim. 576, top. 

T. N. McClellan, Attorney-General, for the State, cited 
Davis V. The State, 68 Ala. 61; Dorinan v. The. State, 34 
Ala. 216. 

CLOPTON, J. — The defendant was indicted under the first 
section of " An act to prevent, in certain cases, the sale, ex- 
change, and transportation of cotton in the counties of Mont- 
gomery, Bullock, Dallas, Eussell, Lowndes, Wilcox, Sumter, 
Autauga, and in beats Nos. one, two, three, four, five, six, 
seven, eight and nine of Hale, and of cotton produced in said 
counties."— Acts 1878-9, 206. In Davis v. State, 68 Ala. 58, 
where the constitutionality of the second section of the act was 
in question and considered, it was held, that the legislature of 
the State has the same plenary power of legislation as the 
British Parliament, except as restrained by the Federal and 

Vol. i.xxvl 



1884. J OF ALABAMA. 63 

[Mangan v. The State.] 

State constitutions, subject to the qualification, tiiat the power 
is purely legislative in its character ; that there is no constitu- 
tional inhibition upon the power to pass laws operating in cer- 
tain designated counties or localities, different fi'oni the general 
laws operating in the other parts of the State; and that the 
second section of the act is not an unauthorized interference 
with the rights of private property, is a police regulation, and 
a legitimate exercise of legislative power. Witli the conclu- 
sions there attained we are content, and being satisfied with the 
reasoning, as equally applicable to the question presented in 
the present record, would have deemed further discussion un- 
necessary, were it not seriously insisted, that the lirst section 
of the act violates the Fourteenth Amendment to the constitu- 
tion of the United States, and section 37 of the Declaration of 
Rights. 

It is not urged that the section is prohibited by the provision 
of the amendment that forbids any State to deprive any person 
of life, liberty or property, without due process of law. This 
was determined adversely to appellant in the cases of Dorman 
V. State^ 34 Ala. 216, and Davis v. State, supra, as respects 
this limitation upon the legislative power by the State consti- 
tution. And in Mimn v. Illinois, 94 U. S. 113, C. J. Waite, 
after considering the term "due process of law," as previously 
understood, observes : " From this it is apparent that, down to 
the time of the adoption of the Fourteenth Amendment, it 
was not supposed that statutes regulating the use, or even the 
price of the use, of private property, necessarily deprived an 
owner of his property, without due process of law. TTnder 
some circumstances they may, but not under all. The amend- 
ment does not change tlie law in this particular; it simply pre- 
vents the State from doing that which will operate as such 
deprivation." 

The proposition pressed by counsel is, that the first section 
of the act is obnoxious to the inhibition of the amendment, 
that "no State shall make or enforce any law, which shall 
abridge the privileges or immunities of citizens of the United 
States." Without reference to the history of the amendment, 
the circumstances under which, and the special purpose for 
which it was adopted, it is manifest that it does not create or 
confer any new or additional privileges or immunities. It 
operates on those already existing, and whicii may be conferred 
or recognized by the States — the privileges and immunities 
meant and embraced by the same terms as elsewhere and pre- 
vioufily used in the constitution. In Bartemeyer v. Iowa, 18 
Wall. 129, Miller, J,, said : "But the most liberal advocates 
of the rights conferred by that amendment have contended for 
nothing more, than that the rights of the citizen previously 



64 SUPREME COUET [Dec. Term, 

[Mangan v. The State.] 

existing, and dependent wholly on State laws for their recogni- 
tion, are now placed under the protection of the Federal gov- 
ernment, and are secured by the Federal constitution." The 
privileges and immunities guaranteed to the citizens of the 
United States are fundamental, and belong of right to the 
citizens of every free government — life, liberty, property, and 
the pursuit of happiness. Mr. Justice Washington said, they 
" may all, however, be comprehended under the following 
general heads : protection by the government, with the right 
to acquire and possess property of every kind, and to possess 
and obtain happiness and safety, subject, nevertheless, to such 
restraint as the government may prescribe for the general 
good of the ^Aw\e:'—CorJieldv. 'Corgell, 4 Wash. C.C. R. 371. 
These fundamental privileges and immunities are inherent in 
the citizenship of every well organized republic, and are be- 
yond the object and end of government, other than for pro- 
tection. This principle is expressed in our Declaration of 
Rights as follows : " That the sole object and only legitimate 
end of government is to protect the citizen in the enjoyment 
of life, liberty and property ; and where the government 
assumes other functions, it is usurpation and oppression." In- 
dependent and irrespective of the Fourteenth Amendment, 
the States are without legislative power to abridge these vital 
and fundamental privileges and immunities, though they may 
confer and withdraw other and additional ones. 

It must not be supposed, however, that the State government 
is without power to give the adequate protection, which is its 
" sole object and only legitimate end." The constitution does 
not inliibit the police power, as generally received and under- 
stood, without which the government would be powerless to 
perform its proper and legitimate functions. This power is 
necessary for the protection of the lives, health and comfort 
of persons, and for the protection of property. Every mem- 
ber of the community, over which there is an established and 
organized government, assumes the obligation to so use his 
property as not to interfere with or injure the enjoyment of 
their property by other members, having equal rights. "Rights 
of property, like all other social and conventional rights, are 
subject to such limitations in their enjoyment, as shall prevent 
them fronj being injurious, and to such reasonable restraints 
and regulations established by law, as tlie legislature, under the 
governing and controlling power vested in them by the con- 
stitution, mav think necessary and expedient." — Commonwealth 
V. Alger, 7 6u&\\. 53. 

We will not undertake, what others have found difficult, to 
fix the boundaries and define the limits of the police power. 
The line of demarcation between the legitimate exercise of the 

Voii. Lxxvi, 



1884.] OF ALABAMA. 65 

[Mangan v. The State.] 

power, and unauthorized interference with the rights of per- 
sons and of private property, is often dim and shadowy. A 
large discretion must necessarily he left with the legislature. 
In his very ahle dissenting opinion in Mimnv. Illinois^siipra, 
Mr. Justice Field said : " It is true, that the legislation wTiich 
secures to all protection in their rights, and the equal use and 
enjoyment of their property, embraces an almost infinite variety 
of subjects. Whatever affects the peace, good order, morals 
and health of the community, comes within its scope; and 
every one must use and enjoy his property subject to the re- 
strictious which such legislation imposes. What is termed the 
police power of the State, which, from the language often used 
respecting it, one would suppose to be an undefined and irre- 
sponsible element in government, can only interfere with the 
conduct of individuals in their intercourse with each other, and 
in the use of their property, so far as may be required to secure 
these objects." And in Bartemeyer v. loioa, supra, he said : 
" I have no doubt of the power of the State to regulate the 
sale of intoxicating liquors, when such regulation does not 
amount to the destruction of the right of 'property in them. 
The right of property in an article involves the power to sell 
and dispose of such article, as well as to use and enjoy it. Any 
act which declares that the owner shall neither sell it, nor dis- 
pose of it, nor use and enjoy it, confiscates it, depriving him of 
his property without due process of law. Against such arbi- 
trary legislation by any State the Fourteenth Amendment 
affords protection. But the prohibition of sale in any way, or 
for any use, is quite a different thing from a regulation of the 
sale or use so as to protect the health and morals of the com- 
munity. All property, even the most harmless in its nature, 
is equally subject to the power of the State in this respect with 
the most noxious." 

The right to dispose of property is not an absolute and un- 
qualified right. It had its origin in the needs and exigencies 
of organized societies, and is subject to such restraints and 
regulations as may be necessary to the general peace and good 
order. — Dorman v. State, mipra; Davis v. State, supra. On 
this principle is based the validity of all laws regulating the 
sale of spirituous or vinous liquors, the alienation and convey- 
ance of property, establishing markets and market hours, regu- 
lating the sampling and weighing of cotton, prohibiting the 
carrying on business without a license, and many others, un- 
necessary to mention. The first section of the act under con- 
sideration does not destroy the property in the cotton, nor 
does it deny the right to sell, use, and enjoy it. It leaves 
unimpaired and unabridged the substantial right of sale and 
enjoyment. The prohibition is restricted to ^'■cotton in the seed.'''' 
5 



66 SUPREME COURT [Dec. Term, 

[Cox V. The State.] 

We know that " cotton in the seed," is not the marketable 
condition of the article. The laws of trade and commerce 
require that it should be manipulated and converted into 
what is commonly known as " lint cottony In this condition 
it is most saleable, useful and enjoyable. The act does no 
more, and goes no farther, than to regulate the sale, and re- 
quires the owner to put it in a vendible condition. We quote 
and reaffirm what was said in Davis v. State : " The primary 
object of this law is not to interfere with the rights of prop- 
erty, or its vendible character. Its object is to regulate traffic 
in the staple agricultural product of the State, so as to. prevent 
a prevalent evil, which, in the opinion of the law-making power, 
may have done much to demoralize agricultural labor, and de- 
stroy the legitimate profits of agricultural pursuits to the 
public detriment, at least witiiin the specified territory. This 
the legislature had the power to do." The constitutionality 
of the act is founded on the police power of the State ; the 
necessity of such legislation, its propriety, justice and wisdom, 
being a matter for legislative determination. 

Affirmed. 



Cox V. The State. 

Indictment for Abusive or Obscene Language used near 
Dwelling house, in pi'esence of Female. 

1. When witness may testify negatively, as to words used or charged. 
A person who was present on the particular occasion inquired about, or 
near enough to hear what was said by the parties, may state tliat fact, 
and, further, that he did not hear them use the language imputed to 
them. 

2. Using abusive, insulting, or obscene language, in presence of female ; 
joint indictment against two, and acquittal of one. — The statutory oflTense 
of using abusive, insulting, or obscene language, in or near a dwelling- 
house, in the presence of a femile (Code, § 4203), can not be committed 
by two or more persons jointly, thou'^h each might use the. same unlawful 
words in an altercation ; but, when two are jointly indicted, and one is 
acquitted, the judgment against the other being reversed on error, a 
nolle-pros. may be entered against the one who was acquitted. 

From the Circuit Court of Pike. 

Tried before the Hon. John P. IIuubard. 

The indictment in this case charged, in a single count, 
"that James Cox and All>ert Martin entered into the dwelling- 
house of T. L. Head, or went sufficiently near thereto to be 
heard by the inmates thereof, and then and there, in the pres- 

VOL. LXXVI. 



1884.] * OF ALABAMA. 67 

[Cox V. The State.] 

ence of the family of said Head, or a member of said family, 
or of a female, made use of abusive, insulting, or obscene lan- 
guage, against the peace," &c. A demurrer to the indictment 
was overruled, and the defendants then pleaded not guilty; 
and issue being joined on that plea, a verdict of guilty was 
rendered against Cox, while Martin was acquitted. 

On the trial, as the bill of exceptions states, said T. L. Head 
testified on behalf of the State that, a short time before the 
finding of the indictment, the defendants passed his store-house 
in said county, driving rapidly in a buggy along the highway ; 
that a horse and buggy belonging to one Cargile was at the 
time standing hitched near the store, and the horse broke loose 
as the defendants passed, and ran up the road after them ; that 
he called the attention of Cox to the loose horse, and the latter 
thereupon got out of his buggy, caught the horse, and held him 
until Cargile came up, \v\\o then used some angry words 
towards the defendants, got into his buggy, and drove off up 
the road ahead of the defendants ; that he, witness, purposely 
detained the defendants, in order to give Cargile time to pass 
the dwelling-house of witness, distant about half a mile up the 
road, before they could overtake him ; that the defendants, pur- 
suing their journey, overtook Cargile " from sixty to seventy- 
five yards beyond the house," when an altercation ensued be- 
tween them which was the foundation of the prosecution ; Cox 
using profane and abusive language to Cargile, and Martin, 
while held by a by-stander, threatening to whip Cargile. " The 
defendant Cox moved the court to exclude said evidence [as to 
the words used] from the jury, because it was irrelevant, 
illegal, and tended to show two separate offenses committed by 
the defendants separately ;" and he reserved an exception to 
the overruling of his objections. The witness Head further 
stated, that his wife was on the front porch of the house when 
the parties passed, heard the altercation, and shut herself up 
in the house from fear. Cargile was also examined as a witness 
for the prosecution, "and testified substantially as above, ex- 
cept that" he imputed to Cox the use of other abusive words, 
in addition to those stated by Head ; and an exception was duly 
reserved by Cox to the overruling of his objections to this tes- 
timony. " One McCall was then introduced as a witness for 
the State, who testified, that he was present when the difficulty 
occurred between the defendants and said Cargile ; that Cox, 
when he rode up to Cargile, said to him, 'Get out of that 
buggy, and I will whip you,' but neither of the defendants 
used any profane or indecent words. Defendants' counsel then 
asked said witness, ' Were you present, and near enough to see 
and hear what transpired between the parties i ' The State ob- 



68 SUPREME COURT [Dec. Term, 

[Cox V. The State.] 

jected to this question, and the court sustained the objection ; " 
to which ruling the defendants duly excepted. 

This being the substance of the evidence adduced, all of 
which is set out in the bill of exceptions, the defendants re- 
quested the court, in writing, to charge the jury, " that they 
must find the defendants not guilty, if they believed the evi- 
dence;" and an exception was duly reserved to the refusal of 
this charge. 

N. W. Griffin, for appellant. 

T. N. McClellan, Attorney-General, for the State, cited 
Elliott V. The State, 26 Ala. 78 ; Walton v. The State, 62 Ala. 
200; 1 Wiiarton's Grim. Law, 433; 1 Bish. Or. Pr. § 470; 
2 Hale, P. C. 173 ; 10 Mo. 440. 

STOiS^E, C. J. — This case will have to be reversed, because 
of a ruling on the admission of evidence. The question to 
the witness McCall, whether or not he was present, or near 
enough to hear what words were used by the defendants, was a 
material factor in determining whether the defendants used the 
profane language imputed to them. If near enough to hear 
and understand what was said, testimony by him that he did 
not hear such language, though negative in its character, the 
law allowed him to lay before the jury for their consideration. 
It may have weighed but little, but that was for the jury, 
Harris v. Bell, 27 Ala. 520 ; 1 Brick. Dig. 872, § 068 ; Ward 
V. /Reynolds, 32 Ala. 384. A witness may always testify to his 
means of knowing facts about which he gives evidence, either 
to strengthen or weaken what he says. Means of knowledge 
is one of the tests of the weight and credibility of testimony. 

The question of the joinder of the two defendants in one 
indictment, may be cured on another trial, by a nolle-prosequi 
as to Martin, who was found not guilty. — Berry v. The State, 
65 Ala. 117. 

The defendants were indicted jointly, in one count, in such 
terms as to import a joint guilt of one and the same offense. 
The offense charged is the use, in the presence of a female, of 
" abusive, insulting, or obscene language." — Code of 1876, § 
4203. It would seem that, ex vi terminoruin, this offense can 
scarcely be committed by two or more persons conjointly. It 
is made up of speech — perverted speech — which is necessarily 
a personal, individual act; and if two should employ the same 
abusive or obscene language, it would seem this could not 
amount to a joint act. Each might be guilty, but we can not 
perceive how the guilt could be joint. Possibly, one might 
procure another to use language interdicted by the statute ; 
Vol. lx.vvi. 



1884.J OF ALABAMA. 69 

[Smith V. Tlie State.] 

and possibly such offense, so procured to be committed, would 
present a case of joint criminality. That is not this case. 
There is neither proof, nor ground for inference, that eitlier 
of these defendants procured the other to use the language the 
testimony tends to show was uttered by that other. No joint 
offense was shown, and, under our rulings, it was error to in- 
dict them jointly, as having participated in the commission of 
one and the same misdemeanor. — Elliott v. The State, 26 Ala. 
78 ; Johnson v. The State, 44 Ala. 414 ; Lindsey v. 2 he State, 
48 Ala. 169; Walton v. 'The State, 62 Ala. 197; Young v. 
The King, 3 T. R 98, 103 ; Stephens v. The State, 14 Ohio, 
386 ; Gay's case, 10 Mo. 441 ; Com. v. McChord, 2 Dana, 242. 

There are some authorities which hold that, when two or 
more persons commit separate offenses of the same grade, and 
subject to the same punishment, they may be separately charged 
in one and the same indictment ; and that in such case, the 
judge presiding, having regard to the matter of convenience, 
will exercise a sound discretion in quashing the indictment, or 
permitting the prosecution to proceed. — The King v. Kingston, 
8 East, 41 ; 1 Bish. Cr. Proc. §| 873-4-5 ; Johnson v. The 
State, 13 Ark. 684 ; State v. Nail, 19 Ih. 563 ; Lewellen v. 
The State, 18 Texas, 538. We need not express our opinion 
of such practice, further than to say it is hazardous, and 
should not be encouraged. 

Reversed and remanded. The accused to remain in custody, 
until discharged by due course of law. 



Smith V. The State. 

Indictment for Negligent Escape. 

1. Negligent escape, by hirer of county convict ; form of indictment. 
An indictment for a negligent escape may be maintained against the 
hirer of a county convict ; and the indictment is sufficient, if it pursues 
substantially the form prescribed for a negligent escape by an officer. 
Code, p. 996, Form No. 44. 

2. Bond of hirer of county convicts ; admissibility as evidence, and 
conclusiveness of recitals ; error without injury in charge to jury. — The 
bond executed by the hirer of a county convict, reciting therein the 
terms of the contract of hiring, the name and sentence of the convict, 
itc. (Code, I 4470), is admissible as evidence against him, when indicted 
for a negligent escape, to prove the fact of hiring as therein recited, 
although a record of those facts is required to be kept ; and although he 
may not be concluded by such recitals, he is not injured by a charge as- 
serting that he is thereby estopped, when it appears that he adduced no 
evidence assailing their correctness, and when, on the uncontroverted 



70 SUPREME COURT [Dec. Term, 

[Smith V. The State.] 

facts, the court might have given, on request, a general charge against 
him. 

From the Circuit Court of Pike, 

Tried before the Hon. Jno. P. Hubbard. 

There was no demurrer to the indictment in this case, and 
the cause was tried on issue joined on the plea of not guilty. 
On the trial, as the bill of exceptions states, '" the venue was 
properly proved, and that the act was done within twelve 
months before the indictment was found ;" and the State then 
offered in evidence the bond executed by the defendant, as the 
hirer of William T. Owens, the county convict with whose 
negligent escape he was charged. This bond, which was dated 
the 13th November, 1883, and approved by the probate judge, 
recited the conviction and sentence of said Owens, and that he 
liad, "under the order and direction of the court of County 
Commissioners, been hired to T. L. McCullough, and with his 
consent to Samuel F. Smith, for the said term ;" and then set out 
the terms of the contract of hiring. The defendant objected 
to the admission of this bond as evidence, but on what grounds 
is not stated, and reserved an exception to the overruluig of his 
objection. The State also read in evidence, " in connection 
with said bond," the following orders of the Commissioners 
Court, as shown by its records : " It is ordered by the court, 
that W. J. Hilliard and W. C. Murfee be, and they are hereby, 
appointed a committee to hire the convicts of the county, with 
discretionary powers as to bids ; and it is further ordered, that 
sealed bids may be received by them up to 17th December, 
1881, and that notice thereof be given four times in each of 
the county papers." Said W. J. Hilliard, who was the probate 
judge, and by whom the execution and approval of the defend- 
ant's bond was proved, testified, on cross-examination, " that 
said court had made a contract with T. L. McCullough for the 
hiring of all the county convicts for the time covered by the 
term " of said Owens. The judgment of the conviction and 
sentence of said Owens was read in evidence; "and the evi- 
dence showed that his sentence had not expired, and that 
defendant took control of him under said contract. The State 
introduced, also, evidence tending to show that, after said 
Owens was turned over to defendant under said contract, he 
was seen, at different times, going about tlie town of Troj', not 
chained or manacled in any way, not at anj^ kind of labor, and 
not attended by any guard. This being all the evidence, the 
court charged the jury, that 'if said Owens was turned over to 
defendant under said contract, and he executed it, and he per- 
mitted said Owens to go at large, and did not keep him safely 
confined, or attended by a sufficient guard, he was guilty under 

Vol. lxxvi. 



1884. J OF ALABAMA. 71 

[Smith V. The State.] 

the indictment ;' and further, 'that the defendant, in signing 
said bond, or instrument of writing, if he did execute it, be- 
Ciune the hirer of said Owens, and he was estopped in this case 
from denying that he was the hirer of said Owens as a county 
convict.' " To each of these charges the defendant duly ex- 
cepted. 

Watts & Soxs, and Jno. D. Gardner, for the appellant, 
made these points: 1. The indictment is defective, in not 
describing the defendant as an officer, or stating the facts 
which showed, as a legal conclusion, that he had the " legal 
custody " of Owens. 2. Tiie bond was not the highest and 
best evidence of the fact that Owens was a county convict, or 
the fact that the defendant had hired him, since the law re- 
quires a record of these facts to be kept. — Sess. Acts 1882-3, 
p. 139, § 18. 3. The bond itself shows that the defendant was 
only a sub-hirer under McCullough, who had hired all of 
the county convicts; and the facts proved did not justify a 
conviction. 4. A conviction could not be had under the 
statute of 1882-3, since the indictment was not founded on 
that statute. — Skains v. The State, 21 Ala. 218 ; Harris v. 
The State, 50 Ala. 127 ; Ilirschf elder v. The State, 18 Ala. 
112. 

T. N. McClkllan, Attorney-General, for the State. 

SOMERVILLE, J.— The indictment charges that the de- 
fendant, " having the legal custody of one William T. Owens, 
who was convicted of embezzlement, and duly sentenced to 
hard labor for Pike county, negligently suffered the said Owens 
to escape." It substantially pursues the language of section 
4126 of the Code (1876), which applies to any officer or person 
having the legal custody of a convict, and strictly follows the 
form of indictment prescribed for such cases by the statute, as 
found on page 996 of the Code, and numbered 14. 

The statute requires that the court of County Commissioners 
shall determine whether convicts shall be employed in laboring 
on the public works of the county, or shall be let to hire to 
some other person or corporation ; and this decision is required 
to be entered on the records of the court. — Code, 1876, § 4469. 
And if the court determine to let the convicts, or any of them, 
to hire, they are empowered to "do so by tiiemselves, or by 
some member of their body, or other person to be appointed by 
them."— Code, § 4469. 

Tlie records of the Commissioners Court, wliich were intro- 
duced in evidence upon the trial of this cause, show with suffi- 
cient certainty a substantial, if not strict compliance with this 



72 SUPKEME COURT [Dec. Term, 

[Smith V. The State.] 

requirement of the law, and specify the names of the agents 
selected to carry out the order of the court by taking bids for 
the hiring. This we conceive to be the only jurisdictional re- 
quirement. We can perceive no reason why the bond, signed 
by the defendant and his sureties, should not be admitted in 
evidence against him, to establish all of the facts recited in it. 
This bond is one which the statute required to be taken, paya- 
ble to the county, and to be signed by the hirer, with two good 
and sufficient sureties. — Code, § 4470. It is, therefore, an ad- 
mission, of the facts recited in it, of a most solemn character. 

It is said that there is better evidence of these facts than this 
written admission under seal made by the defendant, be- 
cause the act approved February 22d, 1883, regulating the 
hiring and treatment of convicts, provides for the keeping of a 
record of these facts. Section 18 of this act makes it the duty 
of the Probate Judge to keep a well-bound book, in which he 
shall " enter the name of each convict sentenced to hard labor 
for the county, the date of hire, the name of the hirer, the 
place where the convict is to labor, the length of the sentence, 
and the sum for which said convict was hired." — Acts 1882-3, 
p. 139, § 18. It is manifest that the act pf hiring does not de- 
rive any legal validity from the entering of this memorandum 
upon the record, nor would such hiring be vitiated by its entire 
omission from the record. The entry is intended as a mere 
memorial of antecedent facts, being open to inspection by the 
public for their convenient information. It is no part of the 
facts to be proved, but collateral and subsequent to them. 
Where this is the case, the facts may be proved by any other 
legal medium of proof besides the record. — 1 Greenl. Ev. § 86. 
The statute, in like manner, requires all marriage licenses to 
be recorded in a book kept in the Probate Court, with a certi- 
fied statement of the names of the parties, and of the time and 
place of the celebration of the marriage ceremony ; yet it has 
never been supposed that the fact of marriage, with its inci- 
dents, can not be established by oral or other legal evidence than 
the record, or a certified copy of it. — Code, 1876, § 2680 ; 
Langtry v. State, 30 Ala. 536 ; 2 Brick. Dig. p. 70, § 24 ; 1 
Greenl. Ev. 107. 

There was no error in admitting in evidence the bond exe- 
cuted by the defendant, which was at least lyrima facie evi- 
dence of tlie facts stated in it. The charge of the court, that 
the defendant was estopped from denying these recitals, if er- 
roneous, was without prejudice to the defendant, inasmuch 
as he introduced no evidence seeking to controvert them, or 
assail their truth ; and the uncontroverted facts of the case 
would have justified the court in charging the jury to find the 
Vol. lxxvi. 



1884.] OF ALABAMA. 73 

[Bube V. The State.] 

defendant guilty, if tliey believed the evidence, if this charge 
had been requested by the State. 

The facts in evidence showed a clear case of escape, and we 
can discover no error in the charges or otlier rulings of the 
court. 

The judgment must be affirmed. 



Bube V. The State. 

Indictinent for Violation of Revenue Law. 

1. Limitation of prosecution for misdemeanor. — The statutory bar to a 
^)ro8eeution for a misdemeanor is twelve months (Code, § 4644), unless 
tacts are affirmatively shown which take the particular (lase out of the 
operation of the general statute, and bring it within some one of the 
specified exceptions. 

2. Same ; exception as to new indictment preferred after abatement of 
first. — When a prosecution is commenced by warrant issued by a justice 
of the peace, returnable into the County Court, for an offense of which 
that court has no jurisdiction, and the proceedings are removed by the 
defendant, after conviction, into the Circuit Court, where they are abated 
and quashed, and an order made allowing an indictment to be preferred 
(Code, §§ 4817-20) ; these facts do not avoid the statutory bar, if the in- 
dictment is not found until after the expiration of twelve months from 
the commission of the offense. 

From the Circuit Court of Jefferson. 

Tried before Hon. S. IT. Sproti\ 

The statute of limitations was pleaded to the indictment in 
this case. On the evidence adduced, all of which is set out in 
the bill of exceptions, and the material parts thereof stated in 
the opinion of the court, the court charged the jury, on the 
request of the solicitor, " that, if they believed the evidence, 
the offense was not barred by the statute of limitations, and 
they must find the defendant guilty ; " to which charge the de- 
fendant duly excepted. 

R. H. Pearson, for the appellant. 

T. N. McClellan, Attorney-General, for the State. 

CLOPTOIST, J. — The indictment under which the defendant 
was tried and convicted, was found in December, 1882. The 
offense is engaging in, or carrying on the business of keeping 
a jenny-lind table, without a license; and was committed in 
June, 1881, more than twelve months before the finding of the 



74 SUPREME COURT [Dec. Term, 

[Bube V. The State.] 

indictment. The oflFense was barred by limitation, unless the 
record atiirms a state of facts which bring the case within the 
purview and influence of sections 4816 to 4820, inclusive, of 
the Code, 1876. 

The record discloses the following facts: On June 27, 1881, 
a warrant was issued by a justice of the peace, commanding 
the arrest of the defendant, and to have him before the judge 
of the County Court, on the third Monday in July, 1881, to 
answer the charge of keeping a jenny-lind table without 
license. The defendant was tried, convicted and sentenced by 
the judge of the Countj- Court ; and he appealed therefrom to 
the Circuit Court. When the case was called for trial in the 
Circuit Court, the defendant interposed a plea to the jurisdic- 
tion of the County Court ; to which the State demurred. The 
Circuit Court overruled the demurrer, and made an order, that 
the writ of arrest and complaint be abated and quashed, and 
that the judgaient of conviction and sentence thereon be ar- 
rested and held for naught. Thereupon, the court made an 
order, that an indictment be preferred against the defendant 
for the same offense, and that he be recognized to answer an 
indictment, should one be found. 

Sections 4816 to 4820, inclusive, of the Code, are innova- 
tions on the common law ; and while they are liberal in their 
provisions, they are not entitled to a liberal construction, or, at 
least, should not receive a construction beyond the plain import 
of the terms used. In Coleman v. The State, 71 Ala. 312, 
alluding to these sections, it is said : " All those sections relate 
to errors and imperfections in indictments, how they may be 
amended and cured, and the effect of the amendment when 
made." The statutory definition is : "An indictment is an ac- 
cusation in writing, presented by the grand jury of the county, 
charging a person with an indictable offense."- Code, § 4782. 

The County Court of Jefferson county was without jurisdic- 
tion to try the offense, with which the defendant was charged. 
By an act approved March 19, 1875, violations of the Revenue 
Law were expressly excepted from the jurisdiction of the 
County Courts of certain counties therein named ; and the 
provisions of the act were, by a subsequent act of March 1, 
1881, extended to Jefferson county. — Acts 1874-5, 235 ; Acts 
1880-1, 144. The proceedings in the County Court were 
coram non judice. They were adjudged to be void by the 
Circuit Court, and after such adjudication, which terminated 
that prosecution, they could not operate as a foundation for a 
further continuance of the prosecution. The indictment, on 
which the defendant was tried and convicted, was a new and 
independent prosecution. 

Section 4820 provides: "When a new indictment is pre- 

VOL. LXXVI. 



1884.] OF ALABAMA. 76 

[Carlisle v. The State.] 

ferred under the provisions of any one of the three preceding 
sections, the time which elapsed between the finding of the 
first and the subsequent indictment must be deducted from the 
time limited by law for the prosecution of the offense." By 
the provisions of tlie three preceding sections, the Circuit 
Court is authorized to order another indictment, when the de- 
fendant refuses to consent to the amendment of the indictment, 
the name of the defendant being incorrectly stated therein, or 
any person, property, or other matter incorrectly described ; or 
when the indictment is lost, mislaid, or destroyed; or when the 
judgment is arrested, or the indictment quashed, on account of 
any defect therein, or because it was not found by a grand jury 
regularly organized, or because it charged no offense, or for 
any other cause. 

The exception provided by the statute is the time which 
elapses " between the finding of the first and the suhsequeiH 
indictment." The statutory exception applies, only, in such 
case, the subsequent indictment having been preferred under 
the provisions of one of sections 4816, 4817, 4818 and 4810. 
To hold that the facts stated in the record bring this case 
within the influence of section 4820, will be to imply an ex- 
ception, restrictive of the operation of the statute of limita- 
tions, not found in tlie statute. — Harwell v. Steel, 17 Ala. 372. 

Reversed, and an order will be entered discharging the de- 
fendant. 



Carlisle v. The State. 

Prosecution for Obtaining Money hy False Pretenses. 

1. Statement of offense hy solicitor, in appeal cases ; agreement dis- 
pensing with. — When a criminal prosecution is commenced before a 
justice of the peace, and removed by appeal into the Circuit Court, the 
parties may, by consent, dispense with the filing of a statement by the 
solicitor (Code, § 4729), and substitute for it the affidavit on which the 
warrant of arrest was issued. 

2. Obtaining money hy false pretense ; criminal intent. — To authorize 
a conviction for the statutory ofTense of obtaining money or property " bv 
any false pretense or token, and with the intent to injure or defraud 
(Code, § 4370), the criminal intent must be proved ; hut the word injure, 
as used in the statute, means neither more nor less than is implied in the 
word defraud. 

From the Circuit Court of Pike. 

Tried before the Hon. Jno. P. Hibbarb. 

This prosecution was commenced before a justice of the 



76 SUPREME COURT [De(^ Term, 

[Carlisle v. The State.] 

peace, before wlioin an affidavit was made by one Mitcliell 
Stringer, to this effect : " that he has probable cause for be- 
lieving, and does believe, that the offense of obtaining money 
under false pretenses has been committed in said county by 
Andrew Carlisle; that said Carlisle, about the 11th or 12th 
October, 1883, obtained from affiant one dollar in United 
States silver coin, by delivering a violin to affiant, to be held 
by him one day, and if said dollar was not paid at the expira- 
tion of said time, said violin was to become the property of 
affiant ; and falsely representing to affiant that said violin was 
his property, when in fact it was the property of Frank Ruffin 
and others, and said Carlisle had no property therein. Said 
false representation was made with intent to defraud affiant." 
On appeal to the Circuit Court, as the bill of exceptions states, 
" the cause was tried, by consent, on the original papers from 
the justice ;" and said Stringer, the prosecutor, testilied to the 
facts substantially as stated in his affidavit, except that the de- 
fendant's promise, at the time he obtained the money by a 
pledge of the violin, was, " to pay the dollar and twenty cents 
back that night, if witness would lot him have the dollar, and 
to pay twenty cents each day he failed to pay said amount." 
lie further testilied, that the defendant offered him several 
pieces of money that night, which he refused to receive, be- 
cause, though he did not count it, he was satisfied that it was 
less than a dollar. Another witness for the State, who was 
present on each of these occasions, testified to the same facts, 
and to the defendant's declaration, when asking for the loan, 
that the violin belonged to him ; "and it was admitted by the 
defendant," as the bill of exceptions states, " that the violin 
was not his, and that he told Stringer it was his before getting 
the money." The defendant introduced one Cotton as a wit- 
ness, who testified that, " some days after the money was loaned," 
the defendant asked him for a loan of one dollar and twenty 
cents to redeem the violin from Stringer, and brought Stringer 
to him to get the money ; " that he pulled out the money 
($1.20), and told Stringer he would pay it, but Stringer ap- 
peared not to want to take it, and got into a conversation with 
defendant and went away, saying that he would get the fiddle; 
that he (witness) then gave the money ($1.20) to the defendant, 
and never saw Stringer again until to-day." The defendant 
himself made a statement to the jury, in which he said, among 
other things, that the money which he offered to Stringer, on 
the night of the day on which he obtained the loan, was $1.10; 
and that on the day Cotton let him have $1.20, "he waited all 
day for Stringer to come back, so that he could get the fiddle, 
and he never came back any more that day." This being all 
the evidence, the defendant asked the court, in writing, to 
Vol. lxxvi. 



1884.] OF ALABAMA. 77 

[Carlisle v. The State.] 

charge the jury, among otlier things, as follows: "2. The in- 
tent to defraud Stringer is a necessary ingredient of the offense; 
and if the jury believe, from the evidence, that the defendant 
did not intend to defraud said Stringer, they must acquit him, 
although the evidence further shows that he made a false repre- 
sentation as to the ownership of the violin." The court refused 
this charge, and the defendant excepted to its refusal. 

N. W. Griffin, for appellant. 

T. N. McClellan, Attorney-General, for the State. 

STONE, C. J. — This prosecution was commenced, and the 
defendant convicted, before a justice of the peace. He appealed 
to the Circuit Court, and was tried de novo. No statement 
was filed by the solicitor, but the record informs ns the case 
was tried, by consent, on the affidavit for warrant of arrest. 
The affidavit is very full, and sets forth every ingredient of 
this statutory crime. We know no rule of law, which will 
deny to parties the power to dispense with the statement the 
solicitor is required to file in cases of appeal, and to substitute, 
by consent, the affidavit for the warrant of arrest, when such 
affidavit is sufficiently specific in its averments. — Code of 1876, 
§ 4729. 

Intent to injure or defraud is made an ingredient of the 
offense, of which the defendant was convicted. Without this 
intent, there is no guilt. Intent is rarely shown by direct 
proof, but is inferred from facts in evidence. Still, to authorize 
a conviction, the jury must be affirmatively convinced such in- 
tent existed; convinced by that measure of proof required in 
criminal cases. Our statute employs, disjunctively, the two 
words, " injure or defraud." Either intent is sufficient to con- 
stitute the corrupt motive, if the words are employed in a 
different sense. Are they so employed ? The only injury 
that can be inflicted, " by any false pretense or token," by 
which one person "obtains from another any money or other 
personal property," is the deception which imposes on the con- 
fidence of that other. This is a fraud ; and we can not think 
the legislature, in employing the word injure., intended to ex- 
press, or, considering the connection, could express, more or 
less than is implied in the word defraud. And this interpre- 
tation is fortified by the fact, that in prescribing a form of 
indictment for this offense, the same legislature which declared 
the ingredients of the crime, explained the phrase " with in- 
tent to defraud," and omitted the word injure. — Form 48, 
Code of 1876, p. 996 ; Mack v. The State, 63 Ala. 138 ; Wood- 



78 SUPREME COURT [Dec. Term, 

[Gary V. The State.] 

hury V. The State, 69 Ala. 242. The second charge asked by 
defendant should have been given. 

Reversed and remanded. The defendant to remain in 
custody, until discharged by due course of law. 



Cary v. The State. 

Indictment f&r Assault with Intent to Murder. 

1. Oath of petit jury. — A recital in the judgment-entry, in a criminal 
case, that the jury " were sworn well and truly to try the issue joined," 
without more, does not show a substantial compliance with the statute 
(Code, § 4765), but negatives the idea that the proper oath was adminis- 
tered ; and the error will work a reversal of the judgment. 

2. Notary public ; term of office of. — Of the two classes of notaries 
public whom the governor is authorized to appoint, those " having the 
jurisdiction of justices of the peace hold their offices three years from 
the date of their commissions" (Code, § 1325), while the others hold, 
after the expiration of the three years, "until their successors are 
qualified." 

3. Judicial notice of public officers. — Courts are required to take 
judicial notice of the various commissioned officers of the State, and to 
know their official signatures, the extent of their authority, the dates 
of their commissions, and the expiration of their respective terms of 
office. 

4. Warrant of arrest, issued by notary public as justice of the peace 
after expiration of term of office. — A warrant of arrest issued by a notary 
public, as e.c officio a justice of the peace, after the expiration of his term 
of office, has no legal validity, and does not authorize an arrest by an 
officer in whose hands it is placed, unless facts are shown which are 
sufficient to uphold the acts of the notary as an officer de facto. 

5. Officer de facto. — The official acts of an officer d^/acfo are just as 
valid for all purposes, so far as the public and third persons are con- 
cerned, as those of an officer de jure ; but, to constitute an officer de facto, 
color of election or appointment must be shown, or else an exercise of 
the office, and an acquiescence therein on the part of tlie public, for a 
length of time which would afford a strong presumption of at least a 
colorable election or appointment. 

6. Same ; notary public whose commission has expired. — An expired 
commission is not color of title to the office of a notary public ; yet a re- 
appointment may be presumed from facts which would not justify the 
presumption of a popular election, and he may be held an officer de facto 
after the expiration of his commission. 

7. Self-defense. — When a man is attacked in his own dwelling-house, 
he is not required to retreat, in order to invoke the benefit of the doctrine 
of self-defense ; and his place of business is deemed, pro hac vice, his 
dwelhng-house, within this principle. 

8. Arrest by private person. — An arrest may be made by a private 
person, for any public offense committed in his presence, or where a 
felony has been committed, and he has reasonable cause to believe that 
it was committed by the person arrested (Code, § 4668) ; but it is his 
duty to carry the arrested person before a magistrate, " without unneces- 



1884.] OF ALABAMA. 79 

[Gary V. The State.] 

sary delay" (lb. § 4671), or to deliver him to an offif^er liaving lawful 
nuthority to arrest him ; and it is no excuse for his failure to do so, that 
he was engaged in examining the prisoner when demanded by the 
ofhcer. 

9. Charge on evidence, invading province of jnrif. — When a question 
of fact is involved, dependent on oral testimony, the credibihty of the 
evidence must be submitted to the jury ; and a charge which assumes its 
credibility is erroneous, although the evidence may be clear and undis- 
puted. 

From tlic Circuit Conrt of Shelby. 

Tried before the Hon. S. II. Spkoti'. 

The iiidictinent in this case charged, in a single count, 
" that Walters. Gary, unlawfully and with malice aforethought, 
assaulted Henry 0. Reynolds with intent to murder him." 
The defendant pleaded not guilty, and was tried on issue joined 
on that plea. On the trial, a bill of exceptions was reserved 
by the defendant, which purports to set out all the evidence 
adduced, and states the following (with other) facts : 

The evidence tended to show that, in July, 1882, several 
burglaries and larcenies were committed in Montevallo by a 
freedman named Frank Wells ; and W. S. Gary, the defendant 
in this case, who was a practicing attorney in Montevallo, was 
employed by R. II. Little to arrest said Wells for trial on 
charges of those offenses committed on Little's property. 
Gary procured the arrest of Wells at Galera, seven miles from 
Montevallo ; but Wells succeeded in escaping, and fled to the 
city of Montgomery, where he was again arrested by the police, 
at the instance of Gary, who then went to Montgomery, and 
brought him back to Montevallo handcuffed and tied. " In 
this matter Gary acted as a private person, and had no written 
authority for the arrest of Wells. On his arrival at Monte- 
vallo, Gary informed Frank Nabors, who was then acting notary 
public and justice of the peace, that he had arrested said Wells 
under verbal charges of burghiry and larceny committed at 
Montevallo, and desired said Nabors, as such notary public and 
justice of the peace, to investigate said charges agaitist Wells; 
and thereupon said Nabors told Gary to carry Wells to his 
(Gary's) office, and to keep him there until he (Nabors) gave 
other directions what to do with him. On receiving these in- 
structions, Gary carried Wells to his office, handcuffed and 
tied, and guarded by persons acting in concert with Gary. At 
that time, there was a prevailing opinion among the people of 
Montevallo and its vicinity, that other persons, residing there, 
were accomplices of Wells in said burglaries and larcenies. 
Gary, when he carried said Wells into his oflice, told him that 
he desired him to make a full disclosure as to these matters, 
and to give the names of his accomplices. This was in the 
afternoon of the day on which Gary had arrived at Montevallo 

Vol. lxxvi. 



80 SUPEEME COURT [Dec. Term, 

[Gary v. The State.] 

with Wells, as above stated, about one o'clock. Thereupon, 
Wells commenced making a statement as to these offenses, and 
giving the names of his accomplices ; and as he made his state- 
ments, Gary wrote down what he said. This business continued 
until after sunset of that day. While Gary thus had Wells in 
his office, said R. H. Little made an affidavit in writing before 
said Frank Nabors, charging said Wells with burglary, which 
affidavit was made for the purpose of procuring the arrest of 
said Wells, for a preliminary investigation before said labors ;" 
and said ISTabors thereupon issued a warrant of arrest for said 
Wells, and, by indorsement thereon, authorized and appointed 
H. G. Reynolds to execute it. The affidavit, warrant of arrest, 
and indorsement appointing Reynolds to execute it, were each 
in the usual form, dated July 29th, 1882, and signed by said 
Nabors, with the additions of the letters and words, " JV. P., 
(& ex officio J Py The bill of exceptions states, that " there 
was no evidence offered of the appointment, or the time of the 
appointment of said Nabors, as notary public and justice of 
the peace ;" but said Nabors himself testified, without objection, 
"that he issued the warrant, and made the indorsement appoint- 
ing Reynolds to execute it, as shown by the papers themselves, 
and was a N. P. and ex off. J. P. at the time." The defendant 
objected to the admission of each of these papers as evidence, 
and duly excepted to the admission of each. 

The assault on Reynolds, with which Gary was charged, grew 
out of his attempt to execute this warrant of arrest ; and the 
circumstances attending it are thus stated in the bill of excep- 
tions : "When the warrant was delivered to Reynolds, he put 
a pistol, of the kind called a revolver, on his person, concealed 
by his clothes, and went to Gary's office, entered, sat down on 
a desk near the front door, and told Gary he had the warrant, 
and had come to arrest Wells, and to carry him before Nabors ; 
and he handed the warrant to Gary. Gary took the warrant, 
and read it, with the indorsement thereon, and made no objec- 
tion because of any illegality or irregularity in either, but said, 
''All right j as soon as I get through, you can have him, ^ or 
words to that effect. At this time, Gary was interrogating 
Wells, as above stated, and writing down his answers. When 
it became known in Montevallo that Gary had arrived with 
Wells, there was considerable excitement, and threats were 
made to form a mob and lynch Wells ; and this was known to 
Gary before Reynolds went to his office to arrest Wells. When 
Reynolds informed Gary that he had come to arrest Wells 
under the warrant, Gary said to Reynolds, that he could not get 
Wells until lie got through with him. At this time, Reynolds 
was standing inside of the office, near the front door, and Gary 
was' writing at a table in the rear of the room ; Wells sitting 



1884.] OF ALABAMA. 81 

[Gary v. The State.] 

nearly between tliein, liatidcuffed, with a rope tied around his 
neck or arm. The room was about twelve by fourteen feet, 
having a door and two windows in the end fronting on the 
street. When Gary told Reynolds that he could not get Wells 
until he got through with him, one Shortridge came in, and 
asked Reynolds why he did not take Wells out ; and Reynolds 
then took hold of the rope, and said that he would carry Wells 
before ISTabors. To this Gary replied, cursing Reynolds, and 
saying, that Reynolds could not carry Wells out of his office 
except over his dead body, and that he would kill any one who 
tried it. At this time, Gary was holding a cocked pistol, of 
the kind called a repeater, in his hand. There had been evi- 
dence before this time, by two witnesses, that Reynolds had a 
pistol in his right hand, and near his hip, with the muzzle 
pointing towards Gary ; but the evidence on the part of the 
State tended to show that this was not true. When Gary made 
this statement to Reynolds, the latter advanced one or two 
steps towards Gary, and as he advanced, holding open the left 
lapel of his coat, his right hand down towards his side, said, 
' Walter Cary, if you want to shoot me, I am at your mercy : 
now shoot i"* his manner, tone and movements being quick, 
short, excited, and angry. When Reynolds advanced to about 
two paces, as above stated, Gary shot him in the left side of 
his breast, the ball passing through the upper lobe of the left 
lung, and inflicting a serious, but not necessarily fatal wound ;" 
and while Reynolds, who fell to the floor, seemed to be endeav- 
oring to cock and present his pistol, Gary shot him a second 
time, inflicting a wound in his right arm which caused a per- 
manent stiffness of the elbow joint. " The general character 
of Reynolds," it is added, " in the military service of the Gon- 
federate States, and in time of peace, is that of a cool, deter- 
mined, brave man. The defendant stated, that, as Reynolds 
advanced on iiim, he saw a pistol in the right hand of said Rey- 
nolds ; but there was evidence tending to show that this was 
not correct." 

The court charged the jury in writing, among other things, 
as follows : " It is not denied that Gary shot Reynolds. Was 
it necessary for him to do so, in order to save his own life, or 
to prevent the infliction of great bodily harm by Reynolds? or 
was he impressed with a reasonable belief that it was necessary 
to shoot, in order to prevent the taking of his own life, or great 
bodily harm to himself ? A man has a right to strike in self- 
defense, -even to the taking of life, where it is necessary to do 
so in order to save his own life, or to prevent great bodily 
harm ; but, before the law of self-defense can be invoked, the 
defendant must be without fault in bringing on the difficulty, 
or provoking it, and there nmst have been no other reasonable 
6 



82 SUPREME COURT [Dec. Term, 

[Gary v. The State.] 

mode of escape. . . . A private person may arrest anotlier, 
for any public offense committed in his presence; or where a 
felony has been committed, though not in his presence, by the 
person arrested ; or when a felony has been committed, and he 
has reasonable cause to believe that the person arrested com- 
mitted it. The evidence shoves that the defendant arrested the 
negro charged with hurglary^ without a warranty or capias / 
that he took him to Montevallo^ and there Tcept him in his cus- 
tody for several hours i that a warrant was sworn out hefore a 
justice of the peace^ and Reynolds lawfully authorized to exe- 
cute it ; that said Reynolds, in attempting to execute the war- 
rant, was shot hy the defendant, and this after he had seen and 
read the warrant. Reynolds had a right, and it was his duty 
under the vmrrant, to take the negro into his custody ; and the 
defendant had no right to refuse to deliver him up, or to shoot 
Reynolds in order to prevent his taking him • and if he shot 
Reynolds in order to prevent him from taking the negro into 
his custody under the warrant, then he vjould he guilty as 
charged in the indictment.'''' 

The defendant excepted to the italicized portion of this 
charge, and also to nine other charges given by the court on 
the request, in writing, of the counsel for the State. Among 
the charges so given were the following : (1.) " There is no evi- 
dence before the jury that the defendant had the custody of 
the prisoner except as a private person." (2.) "If the jury 
believe that Nabors was a justice of tlie peace, and, as such 
justice, issued the warrant for the arrest of Wells, and in 
writing appointed Reynolds to execute the warrant; that ap- 
pointment constituted Reynolds a lawful officer to execute the 
warrant, and it was the duty of the defendant to have sub- 
mitted to such officer in the legal performance of his duty 
under the warrant." (3.) " The warrant for the arrest of 
Wells, and the appointment of Rejmolds to make the arrest, 
was legal, and authorized Reynolds to take Wells into his cus- 
tody, from the custody of the defendant; and Reynolds had a 
right to use force, if it was necessary, to make the arrest ; and 
if the defendant shot him to prevent him from making the 
arrest, then the defendant would be guilty as charged." 

The defendant requested numerous cliarges in writing, of 
which the court refused thirteen ; and among those refused 
were the following: (13.) *'If the jury believe all the evidence 
in the case, the writing purporting to be a warrant of arrest, 
and the indorsement thereon appointing Reynolds to execute it, 
conferred no authority on said Reynolds." (20.) " When one 
is attacked in his own house, he is never required to retreat ; 
for it is his castle, and the law permits him to protect its sanc- 
tity from every unlawful invasion." (22.) " When one is at- 

VOL. LXXVI. 



1884.J OF ALABAMA. 83 

[Gary v. The State.] 

tacked in his own office where he does business, he is not re- 
quired to retreat; for the law permits him to protect it from 
any unlawful invasion," To the refusal of each of these 
charges exceptions were duly reserved by the defendant. 

S. F. Rice, for appellant. (No briefs on file.) 

T. N. McClellan, Attorney-General, for the State. 

SOMERYILLE, J. — The judgment must be reversed, on the 
authority of Storey v. The State^ 71 Ala. 330, and other cases 
there cited, for a defect in the administration of the oath to the 
jury. The recital is, that the jury " were sworn well and truly 
to try the issues joined," thus omitting the phrase, "and a true 
verdict render according to the evidence, so help you God," 
which is expressly made an essential ingredient of such oath 
by statutory requirement. — Code, 1876, § 4765 ; Johnson v. 
the State, 74 Ala. 537. 

There are two classes of notaries public in this State, each of 
which is appointed by the Governor. The duties of the first 
class include the administration of oaths, taking acknowl- 
edgments of certain instruments of writing, the protesting of 
bills of exchange, and other like powers, such as are expressly 
prescribed by statute, or authorized by general commercial 
usage. — Code, §§ 1325, 1329-1331. These are notaries public 
in the common acceptation. The second class, in addition to 
these powers, possess also the jurisdiction of justices of the 
peace, civil and criminal, and are therefore judicial officers. The 
Governor is authorized by the constitution to appoint one no- 
tary of this class for each election precinct in the several coun- 
ties of the State, and one for each ward in cities of over five 
thousand inhabitants, who are ex officio justices of the peace 
within their respective wards or precincts. While the statute 
expressly declares that the first class shall "hold office for three 
years from the date of their commissions, and until their suc- 
cessors are qualified," it is equally clear in the declaration that ^ 
the second class shall " hold their office three years from the 
date of their commissions," thus, by obvious implication, ex- 
cluding a construction which would permit them to hold 
for a single day after the expiration of their commissions. 
Code, § 1325 ; Const. 1875, Art. IV, § 26. 

Courts are authorized and required to take judicial notice of 
the various commissioned officers of the State, and to know the 
extent of their authority, their official signatures, and their re- 
spective terms of office — when such terms commence, and 
when they expire. — Graves v. Anderson, Green c5 Co., at 
present term ; Coleman v. The State, 63 Ala, 93 ; 1 Greenl. 



84 SUPREME COURT [Dec. Term, 

[Gary v. The State. 1 

Ev. (14th Ed.) § 6. '' This cognizance," as observed in Gordon 
V. Tweedy^ 74 Ala. 237- 8, " may often extend far beyond the 
actual knowledge, or even the memory of judges, who may 
therefore resort to such documents of reference, or other au- 
thoritative sources of information as may be at hand, and may 
be deemed worthy of confidence." The dates of these com- 
missions are matters of public record in the executive depart- 
ment of the State government, being accessible to inquiry by 
all who may be concerned, and the law fixes the duration of 
each official term. 

Under these principles of law, the Circuit Court was required 
to take judicial cogizance of the fact that French Nabors, who 
issued the warrant sought to be excluded from evidence, was 
commissioned b}' the Governor of Alabama as a notary public 
and ex officio justice of the peace, on the fifth day of May, 
1879, and that his term of office expired on the fifth day of 
May, 1882, three years from the date of his commission, and 
several months before the issue of the warrant, which is shown 
to have been issued the twenty-ninth day of July, 1882. Nabors 
was not, therefore, an officer de jure when he assumed to do 
this official act ; and unless he was an officer de facto, the paper 
must be held to have no legal validity as a warrant, and, con- 
sequently, to confer no authority upon Reynolds to make an 
arrest under it. — N'oles v. The State, 24 Ala. 672. In this as- 
spect of the case, excluding from consideration all inquiry as to 
its de facto character, — a point which we propose next to con- 
sider, — the paper should have been excluded from evidence as 
a legal and valid warrant, although admissible as a part of the 
res gesim, if shown to have been exhibited and read to the de- 
fendant, at or about the time of the difficulty between the par- 
ties, which resulted in the alleged shooting of Reynolds. 

Was Nabors, however, a de facto officer at the time he isued 
the paper in question, — an act which was done within some- 
thing less than three nionths after the expiration of his official 
term. The general statement is made, that he was an acting 
notary public at this time ; but there is no proof of any other 
official act being peformed by him within this period of time. 
It may be proper to consider the rules of law governing tliis 
feature of the case, in view of the fact that the cause must nec- 
essarily be remanded for a new trial, and additional evidence 
may be offered on this point. 

The rule is well settled, that the official acts of an officer de 
facto are just as valid, for all purposes, as those of an officer 
de jxire, so far as the public and third persons are concerned. 
Joseph V. Cawthoi'n, 74 Ala. 411, and cases cited. As observed 
by Sutherland, J., in Wilcox v. Smith, 5 Wend. 231, " the affairs 
of society could not be carried on upon any other principle." 

Vol. lxxvi. 



1884.] OF ALABAMA. 85 

[Gary v. The State.] 

It is sometimes very difficult to determine whether one claim- 
in<:; to exercise the duties of an office, is an officer de facto^ or 
a mere usurper. The distinction is sometimes said to be, that 
the former claims to hold under color of election or appoint- 
ment, while the latter claims no authority or color of authority 
for his intrusion into possession of the office whose functions 
he undertakes to usurp. — People v. Statmi (73 N. C. 546), 21 
Amer. Kep. 479. The better and more modern view, however, 
is, that no color of election or appointment is needed to consti- 
tute one an officer de facto. While it is sufficient for such 
purpose, it is not a necessary pre-requisite. The true principle 
is, that there must be either some color of election or appoint- 
ment, or else "an exercise of the office, and an acquiescence on 
the part of the public, for a length of time which would affoi'd 
a strong presumption of at least a colorable election or appoint- 
ment."— Wilcox V. Smith (5 Wend. 231), 21 Amer. Dec. 213 ; 
i^tate V. Carroll (38 Conn. 449), 9 Amer. Rep. 409, 425. Or, 
as we find the rule stated elsewhere, "the mere exercise of the 
functions of an office will not be sufficient to make a person a 
de facto officer, where there is no claim to the office under 
color of an election or an appointment, unless the exercise 
thereof has been open, notorious, and continued for such a 
length of time, without the public having interfered, as to jus- 
tify the presumption that the party was duly appointed." 
Hildreth v. Mclntii^e^ 19 Amer. Dec. 61, and Note on p. 68. 
In Rex V. Bedford Levels 6 East, 356, Lord Ellenborough de- 
fined an officer de facto as " one who has the reputation of 
being the officer he assumes to be, and yet is not a good officer 
in pomt of law," thus adopting the definition of Lord Holt in 
Parker v. Kett^ 12 Mod. 467, which was decided as far back as 
the year 1693. The detinition is one now fully recognized in 
England, and has been generally adopted by the American 
courts in its broadest and most liberal sense. — Wilcox v. Smithy 
21 Amer. Dec. 213 ; Hildreth v. Ifclntire, 19 Amer. Dec. p. 
63, Note ; State v. Carroll, 9 Amer. Rep. 409. 

To constitute Nabors a 'de facto notary, within the above 
principles, he must either have acted under color of appoint- 
ment and claim of official right, or he must have continued to 
exercise the duties of his office, by public acquiescence, for such 
length of time and by such frequency of repetition as to afford 
reasonable presumption of his holding over under a re-appoint- 
ment. The first commission having expired, without any right 
in law to hold over, it could not, in our judgment, lend color 
for any length of time beyond its expiration. 

As observed by Butler, C. J., in State v. Carroll, 38 Conn. 
449 (s. c, Amer. Rep. 426, supra), it seems " absurd to say that 
color from election or appointment can extend beyond the dis- 



86 SUPREME COURT [Dec. Term, 

[Gary v. The State.l 

tinct and independent term for which the officer was elected or 
appointed — beyond the term when the election or appointment 
could be made operative, if legal." Yet, although an expired 
commission is not color of title to office, still, if an elected or 
appointed public officer continues, without break, and without 
question by the public, to exercise the functions of the office 
after the expiration of his commission, this is a continued exer- 
cise of the duties of the office by acquiescence, and, under the 
modern rule, constitutes the person thus acting an officer de 
facto. In Brown v. Lunt, 37 Me. 423, a justice of the peace, 
who held, over without legal right or re-appointment, continued 
to act, and took an acknowledgment of a deed about two years 
after the expiration of his term of office. In Gilliam v. Red- 
diek, 4 Ired. (N. C.) 368, where an officer elected to hold for 
four years, without any right to hold over, continued to exer- 
cise the duties of tiie office for about nine years, without re-ap- 
pointment or re-election, an official act performed by him was 
sustained upon the ground that he was an officer de facto, act- 
ing openly and notoriously in the exercise of the office for a 
considerable length of time, and his act in the particular case, 
which was recording a deed, concerned the rights of third per- 
sons or the public, and was therefore deemed to be as valid as 
the similar act of a rightful officer. 

It is manifest, moreover, that an appointment may often be 
presumed upon evidence which would fail to justify presump- 
tion of a popular election, because it is an investiture of office 
less public in its nature, and the whole doctrine imparting 
validity to the unauthorized acts of de facto officers is one 
based on justice, necessity and public policy, and is intended 
chiefly for the protection of an innocent public who may be 
ignorant of the officer's defect of official title. — Joseph v. 
Uawthorn, 74 Ala. 411. 

These general rules will probably be sufficiently speciflc for 
the guidance of the court below upon another trial, and wo 
need not, therefore, be more detinite. 

It is a familiar rule of our criminal law, that no man who is 
attacked in his own dwelling-house, is compelled to retreat, in 
order to invoke the benefit of the doctrine of self-defense. 
In Jones v. The State{ante, p. 12), at the present term, we held 
that one's place of business is deemed his dwelling, ^>ro hao vice, 
and falls within the influence of the same principle. The de- 
fendant, Gary, being in his own law-office and place of business, 
was under no legal duty to retreat from any attack shown to 
have been made upon him by his adversary. 

A private person may arrest another, where a felony has 
been committed, and he has reasonable cause to believe that 
the person arrested committed it, or for any public offense 

Vol. hxxvi. 



1884.] OF ALABAMA. 87 

[Cary v. The State.] 

coiniiiitted iti liis presence. — Code, 1876, § 4668. And lie may 
arrest one for felony, on any day, and at any time. Upon 
making such arrest, it becomes every citizen's dnty to take the 
alleged offender, " without nnnecessary delay," before a magis- 
trate, or to deliver him to a sheriff, constable, or other officer 
who may be authorized to make a lawful arrest, whose duty it 
is to "forthwitii take him before a magistrate." — Code, 1876, 
§ 4671. Conceding that the defendant had lawfully arrested 
the man Wells, upon reasonable cause to believe that he was 
guilty of a felony, it was his duty to take him before a magis- 
trate without unnecessary delay, or to deliver liim to Reynolds, 
who was a deputized constable, provided that it had been made 
to appear, under the rules above stated, that Nabors M'as a 
de facto officer at the time he issued the warrant. The former 
course he did not distinctly elect to pursue, having retained the 
prisoner in his custody for an entire day after his arrival at 
Montevallo. It was no excuse for his failure to deliver to the 
constable, that he was engaged, from about one o'clock in the 
afternoon until sun-set, in examining the prisoner, with the 
view of inducing him either to criminate others or himself in 
the alleged burglaries. Under the facts set out in the record, 
if the warrant was legal and valid, the constable had the right 
to have the custody of the prisoner ; but otherwise, if the war- 
rant was void for want of a de facto official status in Nabors at 
the time he issued it. 

While a court has power to state admitted facts to the jury, 
in charging them, and, where the testimony is all in writing, 
to charge directly upon it, without referring its credibility to 
them ; yet, " when a question of fact is involved, dependent on 
oral testimony, the credibility of the evidence must be referred 
to the jurj' ; and a charge assuming the credibility of the testimo- 
ny is erroneous, though it is clear and undisputed." — Tidicell v. 
The State, 70 Ala. 33 ; Bain v. The State, lb. 4; 1 Brick. 
Dig. p. 336, §§ 8-9. In view of this principle, it was an inva- 
sion of the province of the jury, for the court to state what 
was shown or proved by the evidence in any of its phases. 

We can not see that a discussion of the other rulings of the 
court would facilitate proceedings upon another trial of this 
cause, which necessarily follows its remandment. The phase 
of the case, and the bearing of the charges, may be greatly 
changed by the evidence, and many of the principles involved 
are familiar in view of their repeated discussion. — Storey v. 
Th^ State, 71 Ala. 329; DeArman v. The State, Ih. 351; 
Clark's Cr. Dig. p. 4, § 26. 

The judgment of the Circuit Court is reversed, and the 
cause is remanded. The defendant must, in the meanwhile, be 
retained in the custody of the law, until discharged by due 
process. 



88 SUPKEME COURT [Dec. Term, 

[Cunningham v. The State. 1 



Cuiiniiigliani v. The State. 

Indictment for Carrying Concealed Weapons. 

1. Carrying concealed weapons; constituents of offense. — Under the 
statute against carrying deadly weapons " concealed about the person " 
(Code, §4109; Sess. Acts 1880-81, p. 38), a conviction can not be had 
on proof that the defendant, while riding on horseback along a public 
road, had a pistol in his saddle-bags. 

From the Circuit Court of Shelby. 
Tried before the Hou. S. 11. Sprott. 

No counsel appeared in this court for the appellant, as far as 
the record and the dockets show. 

T. N^. McClellan, Attorney-General, for the State. 

STONE, C. J. — The statute provides, that " any person who 
carries concealed about his person . . a pistol," ifec, "must 
be lined on conviction," &c. — Code of 1876, § 4109, as 
amended by act approved February 19th, 1881. — Sess. Acts, 38. 
The present case requires us to construe the phrase, " concealed 
about his person.^'' The testimony on which tlie conviction 
was had, showed that, "in the year 1882, the defendant was 
riding on one of the roads in said county, on horseback, and 
that he carried on the horse a pair of saddle-bags, and that in 
the saddle-bags he carried a pistol." The court, at the written 
request of the solicitor, charged the jury, if they believed the 
evidence, they must find the defendant guilty. In this the 
Circuit Court erred. "About the person," must mean, that it 
is so connected with the person, as that the locomotion of the 
accused will carry the deadly weapon with him. This is the 
plain import of the words, in common pai-lance. The per- 
nicious practice the legislature intended to interdict, was the 
facility it furnishes for prompt use of a deadly weapon, so 
concealed as to give no notice of its presence, and yet so 
accessible as to afford immediate use, when wanted. Possibly, 
the conduct proved was reprehensible ; but it does not fall 
within the language of the statute, as its words are generally 
understood. — Owen v. State., 31 Ala. 387. . 

Reversed, but not remanded. Let the accused go hence 
without day. 

Vol. lxxvi. 



ISM.] OF ALABAMA. 89 

[Dixon V. The State.] 



Dixon V. The State. 

Indictment for Keeping Open Store on. Sunday. 

1 . Kcrping open store on Sunday; constituents of offense. — A conviction 
niay be had for keeping open store on Sunday (Code, § 4443), on proof 
of a single sale on that day, and even without proof of an actual sale, 
when the evidence satisfactorily shows that the defendant manifested, by 
word or deed, a willingness to aflbrd access to customers, and to do bus- 
iness on that day ; but a single sale, made in an emergency, and for a 
specific purpose, would not he a violation of the statute ; nor can it be 
affirmed, as matter of law, that a single sale, without other evidence of 
criminal intent, would be a violation of the statute. 

2. Same; evidence explaining sale. — A single .sale of liquor being the 
only act proved against the defendant, he may show, as illustrating his 
intention, that he sold the li(iuor because of sickness in the family of the 
purchaser. 

From the Circuit Court of Covington. 
Tried before the lion. Jno. P. IIuhbard. 

Jno. D. Gardner, for the appellant. 

T. N. McClellan, Attorney-General, for the State, cited 
Snider v. Tlie State., 59 Ala. 64; Coin. v. Harrison, 11 Gray, 
308 ; 34 Ark. 447 ; 33 Mich. 279 ; Bish. Stat. Cr. 1070a. 

SOMERVILLE, J. — The defendant is indicted for keeping 
open store on Sunday, in violation of section 4443 of the 
present Code (.1876) of Alabama. The court, in effect, charged 
the jury, that the making of a single sale of merchandise 
without regard to the circumstances of the case, if done on 
Sunday, constituted a violation of the law. 

The design of the statute is to prevent the traffic of mer- 
chandise as a business on the Sabbath, excepting only the sale 
of drugs. By keeping "open store " we are to understand the 
keeping of a store accessible to such as desire to enter for the 
purpose of traffic*. — Commonwealth v. Harrison, 11 Gray, 308; 
Bishop Stat. Crimes (2d Ed.), § 1070a. It is immaterial 
whether the doors of the building are kept open or closed, save 
as an index of intention, or as affording a medium of proof; 
or whether entrance is gained through a front or back door. 
It is sufficient, if the defendant discloses, by words or acts, his 
willingness to afford admittance to those who apply for the 
purpose of buying, or trading in merchandise, and keeps his 



90 SUPREME COURT [Dec Term, 

[Ellis V. The State.] 

store in such condition tliat access to it may he had on the Sab- 
hath day. — Kroer v. The Peojyle, 78 III 294. This being so, 
as said in Snider v. The State, 59 Ala. 64, one sale wonld con- 
stitute the offense. It might have been added, that the offense 
conld be consummated without the making of any actual sale, 
although the making of satisfactory proof, in such a case, 
would be very difficult. 

We are of opinion, however, that a single sale does not, in 
all cases, violate the statute ; for it may be made in an emer- 
gency, and for a specific purpose, without a keeping of open 
store. It was competent for the defendant to prove tliat he 
sold the liquor to the witness, Clark, because of sickness in the 
family of the purchaser; in view of the fact that it illustrated 
his intention, in the absence of any evidence of other act of 
sale, or of his keeping his store open for access to other cus- 
tomers. The court erred in excluding this evidence, and also 
in the charge that a single sale, without other evidence of 
criminal intention, as matter of law, would constitute a viola- 
tion of the statute. 

Reversed and remanded. 



Ellis V, The State. 

Indictment for Larceny of Hog. 

1. Wife^s statutory estate; increase of domestic animals. — The natural 
increase of domestic animals, belonging to the statutory estate of a mar- 
ried woman (Code, ^ 2705-06), forms a part of the corpus, and does not 
belong to the husband. 

2. Larceny; ownership of properly stolen. — In an indictment for the 
larceny of a domestic animal belonging to the statutory estate of a mar- 
ried woman, the ownership may be laid in the husband, who has a 
special property, or in the wife, who has the general ownership. 

From the Circuit Court of Dallas. 

Tried before Hon. John Moorp:. 

The indictment in this case charged that the defendant 
" feloniously took and carried away a hog, the personal prop- 
erty of Tilda Davenport." On the trial, as the bill of excep- 
tions states, issue being joined on the plea of not guilty, the 
State introduced Tilda Davenport as a witness, " who testified 
in substance, among other things, that the hog alleged to have 
been stolen was her property ; that she was a married woman 
at the time it was stolen, then and now living with her husband, 

Vol. lxxvi. 



1884.] . OF ALABAMA. 91 

[Ellis V. The State.] 

Zack Davenport; that she liad bought and paid for a sow be- 
fore her marriage, and owned it at the time of her marriage; 
that after her marriage said sow had pigs, and the hog stolen 
was one of said pigs. This was, in substance, ail tlie testimony 
as to the ownership of the hog;" and the court thereupon 
charged the jury, in substance, that the hog belonged to the 
statutory estate of the said Tilda Davenport, and the ownership 
was properly laid in her; to which charge an exception was 
duly reserved by the defendant. 

No counsel for the appellant appeared in this court, so far as 
the record and the dockets show. 

T. N. McOlellan, Attorney-General, for the State, cited 
Gans V. Williams^ 02 Ala. 41 ; Davis v. The State, 17 Ala. 
416 ; Lavender- v. The State, 60 Ala. 61 ; 44 Ind. 469 ; 6 Vroom, 
N. J. 64. 

CLOPTON, J. — At common law, the wife could have no 
personal property in possession. Her personal property in pos- 
session, and that in action, on reduction to possession, became 
the property of the husband. Therefore, at common law, an 
indictment for larceny must allege the ownership in the hus- 
band. By our statutes, tiie right and title to her separate statu- 
tory estate is secured to the wife ; she has the general owner- 
ship. An action for damages to the property itself, as distin- 
guished from its use, must under the statute be brought in her 
name alone. — Lee v. Tanenhau7n, 62 Ala. 501 ; Pickens v. 
Oliver, 29 Ala. 528. The natural increase of domestic animals, 
forming part of the corpus of her statutory separate estate, is 
the property of the wife. — Gans v. Williams, 62 Ala. 41. 

It has been held that ownership may be laid in the Imsbaud, 
if he has possession, because he has a special property. — Davis 
V. State, 17 Ala. 416; Lavender v. State, 60 Ala. 60. The 
case made by the record is one where the general ownership is 
in one person, and a special property is in another. In such 
case, the pleader may lay the ownership in either, at his elec- 
tion. — 2 Bish. on Crim. PrQ. § 728; 1 Whar. on Crim. Law, 
§ 932a; Petre and Hodden v. State, 35 N. J. L. R. 64. 

Affirmed. 



92 SUPKEME COURT [Dec. Term, 

[Sills V. The State.] 



Sills V. The State. 

Indictment for Retailing Spirituous Liqu&rs without License. 

1. Svfficiencij of indictment. — In an indictment for retailing liquors 
without a license (Code, § 4806), it is sufficient to cliarge that the de- 
fendant " sold vinous or spirituous litjuors, without a license, and con- 
trary to law." 

2. Exculpatory declarations of defendant. — The declarations of the 
defendant himself, at the time of the sale of the liquor, speaking of it as 
medicine, do not tend to prove that it was anything else than intoxicating 
liquor; and do not justify a charge based on the assumption that there 
was evidence tending to show that it was medicine. 

From the Circuit Court of Covington. 

Tried before the Hon. II. D. Clayton. 

"On the trial of this cause," as the bill of exceptions states, 
"issue being joined on the plea of not guilty, the State intro- 
duced W. C. Loftin, as a witness, who testified that, within 
twelve months before the finding of the indictment, and in 
said county, he met the defendant, who was driving a buggy, 
selling pills, liniments, and other things, and asked him for 
some whiskey ; that defendant replied, ' he had some medicine 
that would do him good^ and thereupon produced from his 
buggy a bottle containing some liquid, out of which he (witness) 
took two drinks, or doses, drinking it from the bottle; that the 
bottle had no label on it, but was just such a bottle as is ordin- 
arily used for keeping whiskey in ; that the liquid tasted just 
like whiskey, was in all respects like whiskey, and had the same 
effect upon him as whiskey ; that no particular quantity was 
prescribed, or recommended to be taken ; that he treated a 
friend at the same time to a drink, or dose, out of the bottle, 
and paid the defendant thirty cents for the three drinks, or 
doses; that he had been in the habit of drinking whiskey for 
many years, and was familiar with its taste, smell, and effects ; 
that the liquid sold to him by the defendant was whiskey, and 
contained no other material or ingredient that he could dis- 
cover. This being all the evidence, the defendant asked the 
court, in writing, to charge the jur}^ ' that unless the evidence 
satisfied them, beyond all reasonable doubt, that the article sold 
by the defendant to said witness was not a compound of whiskey 
and other articles of medicine, and that it was a vinous or 
spirituous liquor, then the defendant is not guilty ;' and further, 
' that if the jury believe, from the evidence, tliat the defendant, 

Vol. lxxvi. 



1884.J OF ALABAMA. 93 

[Chikls V. The State.] 

while lie was in possession of said article sold Uy him to the 
witness, stated that it was medicine, and that there is no evi- 
dence that it was a vinous or spiritnous liquor, then they should 
find the defendant not guilty.' The court refused each of 
these charges," and the defendant duly excepted to their 
refusal. 

W. 1). TloBEUTS, for the appellant. 

T. N. McClellan, Attorney-General, for the State. 

SOMERYILLE, J.— The indictment charges, that the de- 
fendant "sold vinous or spirituous liquors, without a license, 
and contrary to law ;" and this was sufficient, under the express 
provisions Of section 4806 of the Code (1876). — Powell v. The 
State, 69 Ala. 10 ; Vlmer v. The State, 61 Ala. 208. The de- 
murrer was, therefore, properly overruled. 

The evidence had no tendency to prove that the liquor sold 
by the defendant to the witness, Loftin, was anything else than 
whiskey, or other spirituous liquor of like taste and effect. 
There was no evidence that it was a medicine other than mere 
whiskey. The declarations of the defendant at the time of the 
sale, characterizing it as such, had no tendency to prove the 
fact. The charges requested were, for this reason, abstract, 
because they were unsupported by any evidence. They were, 
therefore, properly refused. 

Judsnient affirmed. 



Childs V. The State. 

Indictment J^or Carrying Concealed Weapons. 

1. Charge as to credibility of witness, u'hen testimony is conflicting. 
The credibility of witnesses is entirely a question for the jury, under 
certain rules for weijj;hing it which may be given them in charge ; and in 
a criminal case, where the testimony of a witness for the pi'osecution is 
in conflict with the testimony of two witnesses for the defense, as to the 
same conversation or occurrence, a charge requested, instructing the 
jury thiit, if the three witnesses "are of e(jual credibility and weight, 
and the two latter conflict with the former on the facts of the case, they 
may disregard the evidence of the former," " lays down a confusing and 
emi)arras8ing standard for weighing the testimony," and is properly re- 
fused. 

2. Charge as to testimony of witness partly false. — A charge requested, 
instructing the jury that, if they find the testimony of a witness false as 
to certain facts stated by him, or false in i)art, tliey "may discard all 



94 ; SUPREME COURT [Dec. Term, 

[Childsv. The State.] 

his evidence," is properly refused, since a false statement by a witness, 
though it may affect his credibility, does not require that his entire testi- 
mony should be discarded by the jury, unless it was known by him to 
be false, or was made with intent to deceive or mislead. 

From the Circuit Court of Limestone. 

Tried before the Hon. H, D. Clayton. 

The defendant in this case was indicted for carrying a pistol 
concealed about his person, and pleaded not guilty to the in- 
dictment. "On the trial," as the bill of exceptions states, 
" the State introduced one Bill Redus as a witness, who testified, 
that at a church supper at Athens in said county, in September, 
1883, he saw the defendant draw a pistol from his pocket, 
change it a moment from one position to another, and put it 
back in his pocket ; that he, witness, while this handling of the 
pistol was going on, called the attention of Sip. David and Sam. 
Wright to it, and they three then talked about it. The de- 
fendant then introduced said Sip. David as a witness, who 
testified, that he was not at the church on the occasion spoken 
of; that he saw no pistol in the hands, or upon the person of 
the defendant, and that no such conversation took place as that 
stated by said Bill Redns. The defendant further introduced 
said Sam, Wright as a witness, who testified that, on the oc- 
casion named by said Bill Redus, he saw no pistol on or about 
the person of the defendant, nor did he have any such conver- 
sation as that narrated by said Redus. The defendant then 
offered some other evidence, tending to show that he was not 
guilty. This was all the evidence in the case. Thereupon, 
the defendant requested the court, in writing, to charge the 

i'ni-y as follows: 1. 'If you should find that Bill Redus, Sip. 
)avid and Sam. Wright are of equal credibility and weight, 
and the two latter conflict with the former on the facts of the 
case, you may disregard the evidence of Bill Redus.' 2. ' If 
you find that Bill Redus' evidence was false, as to his conver- 
sation at the church, about the pistol, with Sip. David and Sam. 
Wright, you may discard all his evidence.' 3. ' If you find 
that Bill Redus' evidence, as to Sip. David being at the church, 
or seeing the pistol, is false, you may disregard all his evidence.' 
The court refused each of these charges as asked, and the de- 
fendant duly excepted to the refusal of each;" and these 
rulings are the only matters here presented for revision. 

No counsel appeared in this court for the appellant, so far as 
the record and the dockets show. 

T. N. McClellan, Attorney-General, for the State. 

STONE, C. J. — The first charge asked by defendant would 
Voii. i.xxvi. 



1884.] OF ALABAMA. 95 

[Childs V. The State:] 

liave required tlie jury to compare the testimony of one wit- 
ness with tliat of others, supjiosed to be in contiiet, if tlie jury 
found them to be of " equal credibility, or weight," and in- 
structed them, that in such event, they might disregard the 
evidence of the criminating witness. The credibility of wit- 
nesses is entirely a question for the jury, under certain rules 
for weighing it, which may be given them in charge. The 
charge asked would have laid down a confusing and embarrass- 
ing standard for weighing the testimony. In IJargaii v. Tlie 
State^ 72 Ala. 173, we said, speaking of two charges requested, 
they " were certainly misleading, if not -erroneous, and were 
properly refused. They are each obnoxious to the construction, 
that where one witness swears to the existence of a fact, and 
another witness, of equal credibility, or equally worthy of be- 
lief, swears to the non-existence of the same fact, the fact is 
not proved, unless there is other satisfactory proof of it, which, 
standing alone, would of itself be sufficient to establish the 
probability of its truth. In such cases, a very slight circum- 
stance, or fact, might be sufficient to corroborate the one witness 
or tiie other, so as to produce a rational conviction of the truth 
or falsity of t\\Q factum proband um, when, standing alone and 
disconnected, it might weigh very little with the jury, and be 
totally inadequate for this purpose." 

The second and third charges asked and refused, present 
substantially the same proposition. The language of the second 
charge is, "If you find that Bill Redus' evidence was false, as 
to his conversation at the church, about the pistol, with Sip. 
David and Sam. Wright, you may discard all his evidence." 
The vice of these charges is, that they do not predicate enough. 
A statement made in mistake may be false, and yet it would 
not justify a disregard of all the witness might say. The 
principle invoked is the niAxim ^falsus in uno^falsus in omni- 
bus. In Grimes v. The State., 03 Ala. 166, this court, speaking 
of this maxim, said its true explanation was, that to justify the 
exclusion of entire testimony, because it is false in part, "its 
falsity must result from design, and not from mere mistake, or 
infirmity, which affects only the character of the witness for 
accuracy." We said further: "There are so many considera- 
tions affecting the credibility of a witness, that it is far better, 
and more promotive of the ends of justice, to have the jury 
free in each case to determine, in view of all the evidence, the 
witnesses whom they will credit, or the parts of the evidence 
of any witness which they will credit, and which they will 
discredit, than to fetter their judgment by inflexible rules, 
which may compel them to conclusions they would not other- 
wise reach." It is certainly true, as shown by our every-day 
experience, that artificial, or arbitrary rules for determining 



96 SUPREME COURT [Dec. Term, 

[Bright V. The State.] 

the truth or falsity of testimony, must be unsatisfactory and 
misleading. To warrant the application of the maxim, the 
alleged false statement must have been made knowingly, in- 
tentionally, or with a design to deceive, or mislead. Unless 
the jury believe such was, or must have been the case, then an 
erroneous statement does not, in and of itself, require by any 
absolute rule that the whole testimony must be disbelieved. 
The Circuit Court did not err in refusing these charges. 
Affirmed. 



Bright V. The State, 

Indictment for Carrying Concealed \Veapo9is. 

1. Misnomer; requisites of plea. — A plea in abatement on account of 
a misnomer must not onlj' state the defendant's true name at the time the 
plea is filed, but must also allege that he has hitherto been called and 
known by that name, although il is not necessary to aver that he was 
baptized by that name. 

2. SpeciJicatio7i of ground of demurrer ; presumption in favor of judg- 
ment. — When a demurrer is sustained to a plea which is defective, the 
grounds of demurrer specially assigned not being shown by the record, 
this court will presume that the particular defect was specially assigned. 

3. Amendment of plea ; trlten exception is iiecessary. — The refusal of 
the primary court to allow an amendment of a plea is not revisable, in 
the absence of a bill of exceptions (Code, § 4978) ; and the proposed 
amendment must be set out, or so described as to show that it was not 
demurrable. 

Fkom the Circuit Court of St. Clair. 

Tried before the Hon. Lekoy F. Box. 

The defendant in this case was indicted, by the name of 
Jasper R. Bright, for carrying concealed weapons ; and he filed 
a plea in abatement, duly verified by afiidavit, as follows : " Now 
comes the defendant, Jasper R. Bright, as he is in said cause in- 
dicted and called, and says that his name is not now, nor ever 
was, Jasper R. Bright ; and that he is not now, nor ever was, 
known or called by the name of Jasper R. Bright, but that his 
name is Robert Bright." The judgment on this plea is in these 
words: "Comes the State," &c., '"and the defendant pleads 
in abatement to said indictment a misnomer of his christian 
name, as set forth in said plea ; to which plea the solicitor for 
the State demurs, on the grounds in said demurrer set forth. 
The defendant thereupon asked leave to amend said plea, which 
is refused by the court ; and to which the defendant excepts. 
Thereupon, it is ordered by the court, that the said demurrer be 

Vol,. i/X.xvi. 



1884.] OF ALABAMA. • 97 

[Bright V. The State.] 

sustained ; " and the defendant thereupon pleaded not guilty. 
The record contains a memorandum by the clerk, stating that 
the demurrer " was not written out, or, if it was, it is not with 
tlie file." A motion for a new trial was afterwards made, on 
the ground of alleged error in the ruling on the demurrer; and 
in this motion it is stated, that the ground of demurrer was, 
" that said plea does not state that defendant's name had always 
been Kobert Bright, but simply states it now to be Robert 
Bright." The court overruled the motion. There is no bill of 
exceptions in the record. 

No counsel appeared in this court for appellant, so far as the 
record and dockets show. 

T. N. McClellan, Attorney-General, for the State, cited 
Craiy v. Blow^ 2 Stew. 448 ; Mahoney v. O'Leary^ 34 Ala. 97 ; 
Jarman v. McMahon, 37 Ala. 431. 

SOMERVILLE, J. — The plea in abatement, interposed to 
the indictment by the defendant, is insufficient as a plea of mis- 
nomer. It should not only aver what the defendant's name is 
at the time of the issue joiued, but that he has always, or at 
least has hitherto, been called and known by such name. It is 
common practice to state that the defendant was baptized by 
such name, if such be the fact, but this is not now deemed neces- 
sary.— 1 Bish Cr. Proc. (3d Ed.) §§ 792, 686 ; 2 Wharton's 
Precedents, '1142. 

The demurrer to the plea was properly sustained. The rec- 
ord fails to disclose the particular grounds upon which it was 
based ; but these must be assumed to have been sufficient, as 
the plea was defective for the reason above assigned, and this 
court will make all proper presumptions to sustain the correct- 
ness of the rulings made by the lower court. 

The refusal of the court to allow the defendant to amend his 
plea is not revisable, in the absence of a bill of exceptions from 
the record. The point is one which could be reserved only in 
this manner. — Code, 1876, § 4978 ; Jarman v. McMahorCs 
Adm'r, 37 Ala. 431 ; Ex parte Knight, 61 Ala. 482; PmveUv. 
Asten, 36 Ala. 140 ; 1 Brick. Dig. 71, § 8. The record, more- 
over, fails to disclose the nature of the amendment proposed to 
be made by the defendant ; and the action of the court in re- 
fusing to allow it can not be assumed to be erroneous, because 
the amendment may have been demurrable, and there is no 
error in refusing to allow an amendment to which a demurrer 
would be sustained. — Beavers v. Hardie, 59 Ala. 570. 

Judgment affirmed. 



98 SUPREME COURT [Dec. Term, 

[West V. The State.] 



T\^est V. The State. 

Indictment for Murder. 

1. Dying declarations. — Under the evidence stated in the bill of ex- 
ceptions in this case, the declarations of the deceased, which were ad- 
mitted as dying declarations, were made imder a sense of impending 
death, and were properly received as evidence. 

2. Admission or confession by third person. — The admission or confes- 
sion of a third person, that he committed the offense with which the 
accused is charged, not made under oath, though on his death-bed, is 
mere hearsay, and is not admissible as evidence for the accused. 

3. Charge as to circumstantial evidence. — A charge instructing the jury, 
in a criminal case, " that circumstantial evidence is as good as any other 
kind of evidence ; that, like positive evidence, it must produce in their 
minds conviction of guilt beyond a reasonable doubt, and that some 
text- writers hold it to be better than any other kind of evidence," — is 
free from error. 

4. Proof of venue. — In a criminal case, a judgment of conviction will 
not be reversed, because the bill of exceptions does not show that the 
venue was proved, when it does not appear that any question as to the 
venue, or as to the sufficiency of the proof, was raised or presented in 
the court below. 

From the City Court of Montgomery. 

Tried before the Hon. Tiios. M. Akrixgton. 

The defendant in this case, John West, was indicted for the 
murder of Claiborne Wilson, by shooting him with a gun ; 
and being tried, on issue joined on the plea of not guilty, he 
reserved a bill of exceptions, as follows : 

" The State introduced Morgan Gilmer as a witness, who 
testified as follows : In October last, witness went to the house 
of Claiborne Wilson, the deceased, and found him suffering 
from a gun-shot wound, from the effects of which he subse- 
quently died. Deceased said, repeatedly, that he was going to 
die. This was before a physician had been sent for. Witness 
said to him : ^Claib, you are going to die f and witness then 
sent for a physician, who examined the wound, and told Wilson 
he could not recover; to which Wilson replied, '■IJcnow I am 
going to die."* Witness told said Wilson, repeatedly, that he 
was going to die. Thereupon, the State offered to prove the 
dying declaration of said Wilson, to the effect that John West, 
the defendant, had shot him. The defendant objected to the 
admission of said declaration as evidence, but the court over- 
ruled his objection ; to which ruling the defendant duly excepted. 

" The defendant offered to prove by a witness, that he heard 
Vol. lxxvi. 



1884. J OF ALABAMA. 99 

[West V. The state.] 

one Dellick Jones say, on his death-bed, that he had killed said 
Claiborne Wilson, the deceased ; to the admission of which 
evidence the State objected, and the court sustained the ob- 
jection ; to which ruling of the court, excluding said evidence, 
the defendant excepted. 

"The court charged the jury, among other things, that cir- 
cumstantial evidence was as good as any other kind of evidence ; 
that, like positive evidence, it must produce in their minds con- 
viction of guilt beyond a reasonable doubt ; and that some text- 
writers hold that circumstantial evidence is better than any 
other kind of evidence. To this portion of the court's charge 
the defendant duly excepted." 

This is the entire bill of exceptions. 

No counsel appeared in this court for the appellant, so far 
as the record and tlie dockets show. 

T. N. McClellan, Attorney-General, for the State, cited 
Kilgore v. The State, 74 Ala. 1 ; Reynolds v. The State, 68 
Ala. 502 ; Snow v. The State, 58 Ala. 372 ; State v. Fitzhugh, 
2 Or. 233 ; Iludsm v. The State, 3 Cold. Tenn. 355 ; 1 Greenl. 
Ev. § 156 ; Banks c& Wood v. The State, 72 Ala. 522 ; Hub- 
hard V. The State, 72 Ala. 164. 

STONE, C. J. — There is clearly no error in this record. It 
is fully proved that the declarations of the deceased, offered 
and given in evidence, were made under a sense of impending 
death. The case is brought directly within the rule. — Kilgore 
V. The State, 74 Ala. 1. 

Nor was the unsworn confession by another, that he had 
committed the crime, competent evidence for the accused. It 
was but hearsay. — Snow v. The State, 58 Ala. 372. 

The charge given and excepted to, was free from error. 
Banks V. State, 72 Ala. 522. 

No question of venue was raised in the court below, nor is 
such question presented by any ruling of the court. — Hubbard 
V. The State, 72 Ala. 164. 

There is no error in the record, and the judgment of the 
City Court must be affirmed. 

The day appointed for the prisoner's execution having passed, 
it is ordered, that the sentence pronounced by the City Court 
be executed, in the jail-yard of Montgomery county, Alabama, 
between the hours of 10 o'clock a. m. and 2 o'clock p. m., on 
the thirteenth day of March next ; and the sheriff of Mont- 
gomery county aforesaid is charged with the execution of this 
sentence, in the manner prescribed by law. 



100 SUPREME COUET [Bee. Term, 

[Gude V. The State.] 



i Gude V. The State. 

Indictment for Ohstrujcting Public Road. 

1. Obstructing public road; constituents of offense. — Although circum- 
stances might be shown which would authorize a conviction for obstruct- 
ing a public road, by placing a train of cars on or across it, and allowing 
them to remain for an unreasonable length of time (Code, § 4249) ; yet a 
conviction can not be had against the superintendent of a railroad com- 
pany, on account of such obstruction, when the evidence shows that it 
Avas done, not only without his assent or participation, but in violation 
of his express orders, by subordinate servants of the company, whom 
heiHinished for their disobedience of such orders. 

From the Circuit Court of Jefferson. 

Tried before the Hon. S. H. Sprott. 

The bill of exceptions in this case purports to set out all the 
evidence adduced on the trial, the substance of which is stated 
in the opinion. On this evidence, the defendant requested the 
court, in writing, to charge the jury, " that, if they believed 
the evidence, they must find the defendant not guilty." The 
court refused this charge, and the defendant excepted to its 
refusal ; and this is the only matter here presented for revision. 

M. A. Porter, for the appellant, cited Potter's Dwarris on 
Statutes, 278, 281 ; Johison v. The State, 32 Ala. 583 ; Patter- 
son V. The State, 21 Ala. 571 ; J^all v. The State, 34 Ala. 262 ; 
Seibert v. The State, 40 Ala. 60; 71 Ala. 271. 

T. N. McClellan, Attorney-General, for the State, cited 
Tho7n])son V. The State, 20 Ala. 54; Prim v. The State, 36 
Ala. 244. 

SOMERVILLE, J.— The defendant is indicted for willfully 
obstructing a public road, by placing, or causing to be placed, 
a car or train of cars across said road, contrary to the provi- 
sions of section 4249 of the Code, of 1876. 

If the question were necessary to be decided, we can not see 
that we would encounter any difficulty in arriving at the con- 
clusion, that there are circumstances under which one could be 
convicted of violating this statute, who willfully obstructs a 
public road by placing a train of cars across it, and allows such 
obstruction to remain there an unreasonable length of time. 

Vol. lxxvi. 



1884.] OF ALABAMA. 101 

[Kilgrow V. Tlie State.] 

Prim V. The State, 36 Ala. 244 ; Thompson v. The State, 20 
Ala. 54. 

In this case, however, there is no need for us to consider this 
question, because the record fails to disclose any evidence au- 
thorizing the jury to infer the participation or complicity of 
the defendant in the act which is alleged to constitute the 
offense charged. It is shown that the defendant was superin- 
tendent of an incorporated railroad company, the track of 
which crossed a public road. It is shown that the road was 
obstructed by cars, which were placed across it, and allowed to 
remain for some time, either by the subordinate agents of this 
company, or else of some other railroad which furnished cars 
to be loaded with coal and coke. The evidence shows, how- 
ever, not only that this was done without authority of the 
defendant, but in apparent disregard of his express orders to 
the contrary, and that he had punished such of these agents as. 
violated these orders, by discharging or suspending them from 
the service of the conipany. The jury would not be author- 
ized to conclude from the facts in evidence that the defendant 
ever gave authority to any one to violate the statute. — Russell 
V. The State, 71 Ala. 348. 

The court, in our judgment, erred in refusing to give the 
charge requested by the defendant. 

Ke versed and remanded. 



Kilgrow V, The State. 

Scire JpOGias against Bail, on Forfeited Recognizance. 

1. Prucccdings against bail on forfeited recognizance. — The several 
statutory provisions prescribing the prot-eedings for the forfeiture of un- 
dertakings of bail In criminal cases (Code, ^§ 4863-68), construed in con- 
nection with the provision which declares that the undertaking "binds 
the parties thereto jointly and severally (If>. § 4852), authorize the 
taking of forfeitures against the sureties, or one or more of them, with 
or without their principal. 

Appeal from the Circuit Court of Butler. 

Tried before the Hon. Jno. P. Hubbard. 

The record in this case sets out, 1st, a bond executed by 
Henry Morrison as principal, and B. F. Kilgrow and M. S. 
Bargauieras his sureties, conditioned for the appearance of said 
Morrison at the next term of the Circuit Court of Butler, " and 
from term to term thereafter until discharged by law, to answer 



102 SUPREME COURT [Dec. Term, 

[Kilgrow V. The State. J 

indictment preferred against him in said court for burglary ;" 
which bond is in the penaltj'of $400, and was approved by the 
sheriff on the 26th April, 1879. The record next sets out a 
judgment rendered in said court during its November term, 
1880, which recites the execution of this bond, and the default 
of said Morrison to appear, and then proceeds, "It is therefore 
considered by the court, that the State of Alabama, for the use 
of Butler county, recover of the said B. F. Kilgrow and M. S. 
Barganier, on such undertaking, the sum of $400, unless they 
appear at the next term of the court, and show cause why this 
judgment should not be made absolute." On this judgment a 
scii'e facias was issued, which is in regular form, and which 
was returned duly executed on said Kilgrow and Barganier. 
At the ensuing May term, 1881, as the minute-entry recites, an 
" alias scire facias as to the defendant" was ordered, and the 
cause was " continued by the bail." After several continuances 
" by the defendants," the following judgment was rendered at 
the November term, 1883, the cause being entitled " The State 
V. Henry Morrison^ B. F. Kilgrow^ A[. S. Barganier :" " Comes 
the solicitor for the State, and it appearing to the satisfaction 
of the court that, at the Fall term of this court, 1880, a condi- 
tional judgment of $400 was entered against the defendants in 
this case, as defaulting defendant and bail ; and it further appear- 
ing that notice of said conditional judgment has been duly 
served upon B. F. Kilgrow and M. S. Barganier, two of the 
defendants in this case ; now, on this day, it is ordered by the 
court, that the forfeiture in this case be made linal in the sum 
of $250 ; it is therefore considered by the court, that the State 
of Alabama, for the use of Butler county, recover of B. F. 
Kilgrow and M. S. Barganier the sum of $250, the amount of 
the undertaking made final by the court in this case, together 
with the costs," &c. The appeal is sued out by said Kilgrow 
and Barganier jointly, and they here assign the judgment nisi 
and the linal judgment as error. 

Gamble & Riciiakdson, for the appellants. — The record 
shows that, after the principal defendant's failure to appear, the 
State abandoned all proceedings against him, and pursued his 
sureties only. There was no forfeiture against him, no condi- 
tional judgment against him, and no notice to him of the pro- 
ceeding against his sureties. The remedy against bail is a civil 
proceeding, and the statutory forms must be followed. — Code, 
§§ 4863-68 ; Dover v. The State, 45 Ala. 252 ; IJatch v. The 
State, 40 Ala., 720 ; State v. Lloyd, Minor, 34 ; Hammoiis v. 
State, 59 Ala. 170. On the facts shown by the record, the 
criminal prosecution against Morrison has been discontinued. 
DrinTcard v. The State, 20 Ala. 9 ; Jlinson v. The State, 4 Ala. 

Vol. lxxvi. 



1884.] OF ALABAMA. 103 

[Hodges Brothers v. Coleman & Carroll.] 

671 ; Oliver v. Jlutto, 5 Ala. 211 ; Uall v. The State, 47 Ala. 
()()(). The principal beini^ discharfrctl, the sureties can not be 
lield liable.— 2 Stew. 63 ; 3 Stew. U ; 9 Ala. 42 ; 34 Ala. 673 ; 
9 Wall. 21. 

T. N. McClellan, Attorney-General, for the State. 

SOMERVILLE, J.— Sections 4863-4868 of the present 
Code prescribe the form of procedure for the enforcement of 
forfeitures of undertakings of bail in criminal cases. A condi- 
tional judgment is authorized to be taken, under certain cir- 
cumstances, " against the parties to the undertaking," the form 
of which is given ; and this may be made final by notice of its 
rendition to each of the defendants, or two returns of " not 
found " by the sheriff, which ate made equivalent to personal 
service.— Code, 1876, §§ 4866-67. If these sections stood 
alone, we would be disposed to construe them to authorize only 
joint proceedings against all of the obligors to the undertaking 
of bail. Being purely statutory in their origin, and summary 
in their character, they would be subject to a strict construc- 
tion. 

We are of opinion, however, that the effect of section 4852 
of the Code, w^hich is a part of the same subject-matter, and in 
juxta-position as a part of the same context, materially modifies 
this construction. This section provides that " the undertak- 
ing of bail binds the parties thereto jointly and severally " for 
the appearance of the defendant, which is the essence of every 
such undertaking under our statute. The purpose and effect 
of this declaration, we think, is to authorize the taking of for- 
feitures against any one or more of the obligors, including or 
excluding the principal. — Keipp v. The State, 49 Ala. 337. It 
was not error, therefore, to allow judgment to be taken against 
the sureties, without including the defendant himself, for 
whose failure to answer the forfeiture was taken. 

Judgment affirmed. 



Hodges Brothers v. Coleman & Carroll. 

Attachment and Garnishment^ Contest of Garnishee's An- 
swer. 

1 . Garnishment against purcJiaser from fraudulent grantee. — When an 
at'achment is sued out against a merchant who has transferred his stock 
of goods, and a suh-purchaser is summoned as garnishee, but denies any 



104 SUPKEME COUKT [Dec. Term, 

[Hodges Brothers v. Coleman & Carroll.] 

indebtedness or assets; his answer being contested, on the ground that 
the original sale by the debtor was fraudulent, that the garnisliee bought 
with knowledge or notice of the fraud, and that he owes a balance on 
the price agreed to be paid by him ; it is questionable whether a garnish- 
ment at law can reach such indebtedness ; and if it can be sustained, the 
rights of the intermediate purchaser can not be adjudicated in his ab- 
sence as a party. 

2. Same ; sufficiency of issue tendered. — In contesting the answer of 
such sub-purchaser and garnishee, an averment that he owes a balance 
for the agreed price of the goods, without more, does not show an indebt- 
edness to the defendant in attachment, and is demurrable as a specifica- 
tion on which issue may be joined. 

3. Burden of proof , and evidence of fraud. — Issue being joined on an 
allegation by the contesting creditor that the original sale was fraudulent, 
and that the sub-purchaser and garnishee had notice of such fraud, the 
burden of proof as to each of these facts, fraud and notice, is on the 
plaintiffs ; and any evidence tending to show either fact is relevant and 
admissible. 

4. Notice of fraud ; constructive. — To charge a party with notice of 
fraud, it is not necessary that he should have actual notice, if he is 
chargeable with constructive notice ; and this may be inferred from the 
knowledge of suggestive facts, which, if followed up, would have led to 
a discovery of the fraud ; that is, facts of unusual or suspicious nature, 
having reference to the transaction sought to be impeached, and so 
related to it that, if faithfully pursued, and inquired into, they would 
have discovered its true character. 

6. Same ; information and inquiry. — As to the sufficiency of informa- 
tion to stimulate inquiry, the character of the person from whom it 
comes must be considered — that is, his relations and intimacy with the 
parties from whom direct information might naturally be expected, his 
connection with the particular transaction, his facilities for obtaining in- 
formation, and the degree of knowledge displayed by him ; and the infor- 
mation itself, whatever may be its source, must amount to something 
more than a vague and general statement that the title of the party pro- 
posing to sell is defective, or is subject to an equity. 

6. General rumor, or notoriety of notice. — General knowledge of a fact 
in a community is evidence tending to show notice of such fact, its exist- 
ence being otherwise shown; but general rumor that a particular sale 
was fraudulent, does not amount to general knowledge, or notoriety, and 
does not tend to show notice of fraud in the sale ; nor is a general state- 
ment that a sale is fraudulent sufficient to put a purchaser on inquiry. 

7. Fraudulent sale of goods ; facts putting sub-purchaser on inquiry. 
Unusual circumstances, outside of the ordinary routine of commercial or 
mercantile business — such as great haste in consummating the sale; the 
unusual time, night; the fact that the sale embraces the entire stock in 
trade of an old house; the fact that the purchaser offered, on the next 
morning, to re-sell the entire stock at a price greatly below the invoice 
rates — if known to the sub-purchaser when proposing to buy, should 
have suggested inquiry into the bona fides and validity of the sale ; and 
that inquiry should have been directed, not simply to the question 
whether the transaction was fair and free from fraud, but whether it was 
supported by a just and sufficient consideration, and whether any bene- 
fit was reserved to the vendor or grantor. 

8. Sale by failing debtor to creditor ; validity as against other creditors. 
Suspicious circumstances — such as great haste, consummating the sale 
by night, selling the entire stock in trade, etc. — do not necessarily prove 
fraud in the sale, but may be explained away by satisfact(jry proof that 
the vendor owed the purchaser an honest debt, and that the agreed 
price was not greatly less than the value of the goods, it not appearing 
that any benefit was reserved to the vendor beyond what the law allows. 

Vol. lxxvi. 



1884.] OF ALABAMA. 105 

[Hodges Rrothers v. Coleman & Carroll.] 

Within these limits, the law permits a creditor to be diligent in securing 
his debt from a failing debtor, though nothing be left for other creditors. 

9. Fraudulent sale of goods ; valid Uy of resale to sub-purchaser. — If 
the sub-purchaser and garnishee, having knowledge or notice of suspi- 
cious circinnstances attending the original sale by the debtor, made 
honest and diligent inijuiry into them, and was satisfied that the sale 
was fair, supported by a suthcient consideration, and reserved no benefit 
to the grantor, his j)urchase will be protected, although the original sale 
mav be declared fraudulent; and, on the other hand, if the original sale 
be held not fraudulent, no inquiry can arise as to the sutliciency of his 
inquiry into any suspicious circumstances attending it. 

10. Proof of sub-purrhaiier's knowledge of suspicious circumstances ; 
objection to (/uestlon and answer. — A witness may be asked, if the sub- 
purchaser knew, at the time he bought the goods, of certain specified cir- 
cumstances attending the original sale ; and if it is not shown that he had 
the requisite opportunities of ascertaining the extent of the sub-pur- 
chaser's knowledge, a motion to exclude his answer is necessary. 

11. Charge as to validity of re-sale to sub-purrhaser. — A charge which 
instructs the jury that, if the original transaction was fraudulent, and if 
the sub-purciiaser bought with knowledge of facts sufficient to put him 
on incjuiry, then the jury should find for the attaching creditor, is errone- 
ous, since it dispenses with all necessity for inquiry, and holds the sub- 
purchaser liable without regard to the result of imfuiries honestly prose- 
cuted. 

12. Sufflciency of inquiry by sub-purchaser. — The sub-purchaser can 
not be re(iuired to make in(iuiry of the defrauded parties, since he can 
not be presumed to know who they were, and, if known, they would not 
best understand the facts to be inquired about — that is, the fact a,nd con- 
sijleration of the alleged sale ; and if the sub-purchaser exercised the 
necessary diligence and good faith in making inijuiry, and was reasona- 
bly convinced that the transaction was fair and honest, it is not neces- 
sary to his protection that his informants should have known " all the 
facts in evidence tending to show fraud." 

13. Same ; advice of attorney. — When a party is put on inquiry, by 
knowledge or notice of suspicious circumstances, he can not safely rely 
on mere opinions that the transaction " is free from fraud," or that he 
" will get a good title;" and when the transaction consists of matters 
en pais, the advice of an attorney is worth nothing, unless based on a 
knowledge of the facts such as he could testify to. 

14. Charge requiring explanation, or tending to mislead. — A charge 
which asserts a correct legal proposition, though expressed in language 
which has a tendency to mislead, is not a reversible error: the party 
complaining of it should ask an explanatory charge limiting its operation. 

15. Sale by debtor to creditor ; validity as against other creditors. 
When a debtor, although insolvent, or in failing circumstances, makes 
an absolute sale of his property to a creditor, in payment of an antece- 
dent debt, by way of preference over other creditors, the debt being hon- 
estly due, the price or consideration received being fair and adequate, 
and no interest being reserved by the grantor, his mere fraudulent intent 
does not vitiate the conveyance, because the act itself is legal, and fraud 
without damage gives no right of action. These concurrent facts al)so- 
lutelv rebut all inferences that might be drawn from attendant badges of 
frauci, and impart validity to the conveyance as an allowable preference 
of the particular creditor. 

Appeal from the Circuit Court of Pike. 
Tried before the lion. John P. IIubb.\ki). 
The appellants in this case, as partners, sued out an attach- 
ment on the 9th December, 1881, against Jackson & Brother, 



106 SUPREME COURT [Dec. Term, 

[Hodges Brothers v. Coleman & Carroll.] 

a mercantile partnership doing business at Troy in said county 
of Pike ; and summoned Coleman & Carroll, the appellees, by 
process of garnishment, as the debtors of said Jackson & 
Brother. Tiie garnishees answered, and denied any indebted- 
ness on their part to said Jackson & Brother, or any assets in 
their possession or under their control ; but the answer was 
contested by the plaintiffs, and an issue was thereupon 
made up between the parties, as stated particularly in the 
opinion of this court. On the trial of this issue, a bill of ex- 
ceptions was reserved by plaintiffs, in which the facts are thus 
stated : 

" T. H. Jones, a witness for the plaintiff, testified, in sub- 
stance, that on some night in December, 1881, between eleven 
and twelve o'clock, he was called on, at his residence in Troy, 
to assist in invoicing the stock of goods then in the store of 
said Jackson & Brother, and found, on his arrival at the store, 
that S. Bruner, H. Strassburger, E. Jackson, L. Jackson, II. 
Lyon, IT. D. Green, and L. M. Baslinsky were there, and the 
invoicing had commenced ; that they worked all night, and 
completed the invoice about six or seven o'clock in the morn- 
ing ; that he was called on, after the invoice was completed 
and footed up, and did witness two bills of sale of said 
stock of goods — one from said Jackson & Brother to S. Bruner., 
for a part, and the other from said Jackson & Brother to J. 
Loeb & Brother, for the other part ; that said Strassburger was 
acting as agent for said Loeb & Brother, and that said stock 
invoiced, at cost, between $8,000 and $10,000. On cross-ex- 
amination of said Jones, counsel for tiie garnishees asked him, 
whether Coleman & Carroll knew, at the time of their pur-^ 
chase, that said stock had been invoiced at night, or anything 
about it. Plaintiffs objected to this question, on the ground 
that it sought to obtain a negative answer from the witness, as 
evidence to show that Coleman & Carroll had no notice of the 
taking of said invoice at night. The court overruled said ob- 
jection, and plaintiffs excepted. The witness answered, that 
Coleman & Carroll, so far as he knew, did not know that said 
invoice was taken at night. 

" W. L. Wilson, a witness for plaintiffs, testified that he was 
in business in Troy, two or three doors from Jackson & 
Brother, for two or three years before December, 1881 ; that 
it was generally known in Troy, in the year 1881, that the 
financial condition of Jackson & Brother was not good ; that 
they bought a verj' heavy stock iti the fall of 1881, apparently 
about three times as large as previous stocks ; that he saw, in 
the fall of 1881, several loads of goods leave their store in 
wagons, — one by a Mr. Hughes, at McDade's Pond, Florida, 
and others by parties unknown to witness; that said goods were 
Vol. lxxvi. 



1884.] OF ALABAMA. 107 

[Hodges Brothers v. Coleman & Carroll.] 

packed in boxes, and not in the usual way when they sold in 
the usual course of trade ; and tliat it was generally rumored in 
Troy, on the morning after said invoice was taken, that Jack- 
son had sold to Bruner and Loeb & Brother, and that J^runer 
had employed counsel. It was admitted that IL C. Bailey, 
agent of the Mobile & Girard Railroad Company at Troy, 
would testify, if present, that said Jackson t% Brother, during 
the fall and early winter of 1881, shipped goods over said road 
from Troy, at various times — some consigned to one Bern- 
heimer, at Union Springs, Ala. ; some to one Lyon, llatche- 
chubbee, Ala. ; and some to one Harris, at Columbus, Ga. — 
that said shipments agregated about 9,000 lbs., and extended 
over a period of several months ; and that it was not usual for 
merchants at Troy to make shipments of goods from that place 
to points along said road. H. I). Green, a witness for plaintiffs, 
testified that, in the year 1.881, he was cashier of the Pike 
County Bank, and is now ; that S. Bruner came to Troy, a few 
days before the transfer of said stock of goods, and came into 
said bank, and inquired of witness as to Jackson's condition ; 
that witness told him, he thought Jackson could get over his 
troubles, if he could get some help; that Jackson had been 
rather embarrassed for the year 1881, his paper having gone to 
protest a short while before said transfer, and also a year or 
two before ; that Jackson had accepted several drafts through 
said bank not long before the transfer ; that he (witness) was 
present a part of the time when the invoice was taken, and 
signed the bills of sale as a witness ; and that said Bruner and 
Strassburger came in on the nine o'clock train that night. Said 
witness stated also, on cross-examination, that he went with S. 
Bruner, in the evening after the transfer by Jackson & Brother, 
over to the store of Coleman & Carroll, and introduced him to 
W. S. Colman, of said firm, to whom Bruner then made propo- 
sitions to sell said stock to him ; and that he (witness) told said 
Coleman, in the conversation, that he thought Jackson owed 
Bruner a good deal of money. Plaintiffs objected to this last 
statement made by said witness," and excepted to the overrul- 
ing of their objection. " Said witness testified, also, that he 
told Coleman he thought it would be all right, and that he 
would get a good title ; also, that Bruner had loaned Jackson 
some four or six thousand dollars." 

Several other exceptions were reserved by the plaintiffs to 
rulings on evidence, which the opinion of this court renders it 
unnecessary to state. The plaintiffs introduced other evidence, 
also, tending to show fraud on the part of Jackson <fe lirother 
in the transfer of their stock of goods, to l^runer and Loeb & 
Brother, but a statement of tins evidence is not necessary to an 
understanding of the points decided by this court. It was ad- 



108 SUPREME COURT [Dec. Term, 

[Hodges Brothers v. Coleman & Carroll.] 

mitted tliat, at the time said transfer was made, Jackson & 
Brother owed about $15,000, which was yet unpaid. It was 
proved that their debt to plaintiffs, amounting to about $1,300, 
was contracted for goods sold and delivered to them during the 
months of Jul}', August, and October, 1881 ; and that in reply 
to inquiries as to their circumstances, at the time these pur- 
chases were made, they represented verbally to plaintiffs' agent, 
and to plaintiffs themselves in writing, that they were doing a 
good business, and that their financial condition was better than 
it had been for several years. 

The defendants introduced said Strassburger as a witness, 
who testified, in substance, that Jackson & Brother owed Loeb 
& Brother, at the time of said transfer, about $3,900, for goods 
sold and delivered, as shown by the books of Loeb & Brother, 
who were merchants in Montgomery, and that the goods were 
taken in payment of this indebtedness. The bill of exceptions 
further states, " The garnishees then introduced the deposition 
of said S. Bruner, which is as follows ; " but the deposition is 
not set out. " W. S. Coleman testified, on behalf of the gar- 
nishees, that he bought said goods from said S. Bruner and 
Loeb & Brother, for liis firm, on the evening of 2d December, 
1881 ; that he paid sixty cents on the dollar for the groceries, 
and seventy cents for the dry-goods, on the invoice prices from 
said Jackson & Brother to them ; that the purchase was con- 
summated about sunset that evening, and all the purchase- 
money was paid except about $1,700, which balance was paid 
about a month afterwards ; that said Bruner told him, 
during the negotiations, that Jackson & Brother owed him, 
and he took said goods in payment of this indebtedness, and 
that Strassburger made the same statement as to the goods he 
got for Loeb & Brother ; that said Bruner also stated, during 
said negotiations, that he had a letter written by Rice & Wiley, 
attorneys, at Montgomery, stating that any person who would 
buy said goods would get a good title, and that the bills of sale 
had been drawn by said Rice & Wiley after a full investiga- 
tion, and that he would be safe in making the purchase ; that 
he also inquired of E. B. Wilkerson, president of said bank, 
and of U. D. Green, cashier of said bank, and of W. C. Wood, 
if they thought there was any fraud in the transfer from Jack- 
son & Brother to Bruner ami Loeb <fe Brother, or if he would 
run any risk in buying the goods from said Bruner and Loeb 
& Brother, and that each told him they thought there was no 
danger in buying said goods ; and that this was all the inquiry 
he made. There was other evidence, also, that Bruner and 
Loeb & Brother, during the day of the purchase by Coleman 
& Carroll, publicly tried to sell to other merchants in Troy, 
who bid upon the goods ; and that they (Coleman & Carroll) 
Vol. lxxvi. 



1884.] OF ALABAMA. 109 

[Hodges Brothers v. Coleman & Carroll.] 

were advised by others that a purchase by them would be safe 
and all right." 

On the evidence adduced, all of which the bill of exceptions 
purports to set out, and the substance of which is above stated, 
the plaintiffs asked the following charges to the jury : 

"1. If the transfer of the goods by Jackson & Brother to S. 
Bruner and Loeb & Brother was made with the intent on the 
part of all of them to hinder, delay or defraud the creditors of 
said Jackson & Brother, and Coleman &; Carroll afterwards 
bought the goods from said Bruner and Loeb & Brother with 
knowledge of the fraud, or knew of facts sufficient to [put] 
tiiem on inquiry, then Coleman vfe Carroll are liable as gar- 
nishees, and the jury must find for the plaintiffs. 

" 2. If the jury believe there was fraud, and that Coleman 
& Carroll knew of the fraud, or had knowledge of facts or 
circumstances sufficient to put them upon inquiry; then the 
law makes it their duty to have made iiKjuiry from the proper 
sources; and if the jury believe that they, or either of them, 
did make inquiry, but the same was made only from parties 
connected with the fraud, such in(jniry does not protect them, 
but they should have gone to the parties defrauded. 

" 3. If the jury believe, from the evidence, that either 
Coleman or Carroll had knowledge of facts or circumstances 
sufficient to put them on inquiry of the fraudulent intent, that 
was notice to them. 

" 6. If the jury believe, from the evidence, that Coleman 
& Carroll had knowledge sufficient to put them upon inquiry 
that there was fraud, and that they, or either of them, made 
incjuiries of E. B. Wilkerson, or II. D. Green, although the 
evidence may show that, from the information they obtained 
from said Wilkerson or Green, there was no fraud, yet this in- 
formation will not protect them, unless the jury believe, from 
the evidence, that said Wilkerson or Green knew all the facts 
in evidence tending to show fraud." 

The court refused each of these charges, and the plaintiffs 
duly excepted to their refusal ; and they also excepted to the 
following charge, which was given by the court on the re- 
quest of the garnishees : " If the jury believe, from the evi- 
dence, that on the 3d December, 1881, at the time Coleman & 
Carroll purchased the stock of goods from Strassburger and 
Bruner, they took the precaution to make an honest inquiry as 
to the right of said Bruner and Strassburger to sell said goods; 
that, in making the purchase, they acted upon the advice of 
Rice & AViley, who had been of counsel for Loeb & Brother 
and Bruner, and had prepared bills of sale from Jackson &, 
Brother to them respectively ; that they also sought the advice 
of Col. E. B. Wilkerson and Capt. II. D. Green, who at that 



110 SUPREME COUET [Bee. Term, 

[Hodges Brothers v. Coleman & Carroll.] 

time were connected with the only bank in Troy, and were ad- 
vised that they (Coleman & Carroll) would get a good title, 
and tliat there was no risk in making the purchase ; and that 
Coleman & Carroll made said purchase in good faith, and paid 
a valuable consideration therefor, and had no purpose to hinder, 
delay or defraud, or to aid Jackson & Brother in hindering or 
defrauding their creditors, then the jury must find for the gar- 
nishees." 

The sustaining of the demurrer to one of the specifications 
in the issue tendered by the plaintiffs, the several rulings on evi- 
dence to which they reserved exceptions, the charge given, and 
the refusal of the several charges asked, are now assigned as 
error. 

M. N. Carlisle, for appellants. — (1.) It was immaterial to 
the plaintiffs, in this contest, whether they subjected the goods 
in the hands of the garnishees, or the unpaid balance due on 
their purchase ; and they ought to have been allowed to contest 
each denial of the answer. If the garnishees still owed a bal- 
ance on their purchase, and tliere was fraud in the original sale 
by Jackson & Brother to Bruner and Loeb & Brother, the gar- 
nishees could not set up the defense of innocent purchasers 
without notice as to that balance. If there was fraud in the 
original sale, the title to the goods remained in Jackson & 
Brothers ; and if the garnishees had no notice of that fraud, 
they are entitled to protection only to the extent of the pur-_ 
chase-money paid before notice,' or before service of the gar- 
nishment. — Thames <& Co. v. Rembert, 63 Ala. 561 ; Bnfm'd 
V. McConnick, 57 Ala. 428 ; Wells v. Morroio, 38 Ala. 125 ; 
Moore v. Clay, 7 Ala. 742; Story's Equity, § 1502; Story's 
Eq. PI. § 805. (2.) That goods in the hands of a fraudulent 
grantee may be reached by garnishment, see Henry v. Murphy 
i& Co., 54 Ala. 246 ; Price v. Masterson, 35 Ala. 483 ; JJaz- 
zard V. Franklin, 2 Ala. 347 ; 1 Stew. & P. 189 ; 41 Ala. 242. 
(3.) Where the issue of fraud is involved, great latitude is al- 
lowed in the range of evidence. — Snodg7'ass v. Br. Bank, 
25 Ala. 161; Bump on Fr. Conv. 560-61. (4.) The first 
charge asked and refused asserts a correct proposition, and was 
justified by the evidence. — Kelly v. Lehman, Dui^ & Co., 68 
Ala. 192; Lomax v. LeGrand, 60 Ala. 543; Boggs v. Price, 
64 Ala. 517 ; Wade on Notice, §§ 27, 30. (5.) If the gar- 
nishees had notice of suspicious circumstances in the original 
sale, the extent of their inquiries for information became ma- 
terial ; and it is submitted that they could not protect them- 
selves, as the court allowed them to do in its rulings on the 
cliarges, by showing that they made inquiries of Green, or Wil- 
kerson, or any other person not cognizant of all the material facts. 

Vol. lxxvi. 



1884.J OF ALABAMA. Ill 

[Hodges Brothers v. Coleman & Carroll.] 

(tauoner & Wiley, contra. — (1.) The plaintiffs could not as- 
sail the validity of the transfer of the goods, and at the same 
time condemn the unpaid balance due from the garnishees. 
Godden v. Piersoji, 42 Ala. 370 ; Sheppard v. Buford, 7 Ala. 
90. If they could do so, Brnner and Loeb vfe Brother should 
liave been brought in by notice. — Moiton v. Ktfcott^ 50 Ala. 77 ; 
Bayd v. Cohhs, 50 Ala. 82 ; Simpson v. Tippin, 5 Stew. & P. 
208. (2.) The bill of exceptions purports to set out all the 
evidence, and fails to show fraud in the purchase by Bruner 
and Loeb & Brother from their common debtor. — Orav)ford 
V. Kirhsey, 55 Ala. 282; Uhman v. Kelly, 08 Ala. 192. That 
transaction being valid, inquiry on the part of the garnishees 
was entirely unnecessary. It would be vain and useless for 
creditors to take property from their debtor in settlement of 
their just demands, if they were not allowed to dispose of it. 

STONE, C. J. — Hodges Brothers were creditors of Jackson 
& Brother, and sued out attachment against them. The ground 
of the attachment was, that Jackson & Brother had fraudu- 
lently disposed of their property. Tiie only levy of tlie attach- 
ment was a service on Coleman & Carroll as garnishees. Cole- 
man & Carroll, being partners, made a joint answer to the gar- 
nishment, in which they say, that they were not indebted to 
the said defendants, Jackson & Brother, at the time of the ser- 
vice of the garnishment, nor at the time of making the answer, 
and would not be indebted to them in future by contract then 
existing, and that they had riot in their possession, or under 
their control, personal nor real property, nor things in action, 
belonging to the defendants, nor did they have at the time of 
the service of the garnishment. This answer was controverted 
by the oath of plaintiffs' counsel, that he believed it to be 
untrue. 

Plaintiffs in attacliment tendered an issue, in which they 
averred that the answer was untrue, " in this : that at the time of 
service of the writ of garnishment, the said Coleman «fe Carroll 
were in possession of a stock of goods, wares and merchandise, 
which they claim to have bought from one Bruner and J. Loeb 
& Brother, who claimed to have bought from defendants. But 
plaintiffs aver that, in fact, there were no sales of said goods, 
either b}- Jackson & Brother to said Simon Bruner and J. 
Loeb & Brother, nor by said Simon ]>runer and J. Loeb 
& Brother to said Coleman 6c Carroll ; but, if there were 
such sales, then said plaintiffs [aver] that the transfer of said 
stock of goods, &c., to said Bruner and said J. Loeb ife Brother 
was for the purpose of hindering, delaying, or defrauding the 
creditors of said Jackson cfe Brotlier, and that said W. S. Cole- 
man and J. S. Carroll had notice of the same. Plaintiffs aver 



112 SUPEEME COUKT [Dec. Term, 

[Hodges Brothers v. Coleman & Carroll.] 

that, at said time, there was a balance due said Bruner and J. 
Loeb & Brother by said Coleman & Carroll." Garnishees 
took issue on the first of the above specifications, and demurred 
to the second. The Circuit Court sustained the demurrer, and 
that ruling presents one of the errors assigned. 

It will be observed that the first of the specifications relies 
for recovery on the averment, that there was either no sale 
from Jackson to Bruner and Loeb, and from Bruner and Loeb 
to Coleman & Carroll, or that the sale from Jackson to Bruner 
and Loeb was fraudulent, and that Coleman & Carroll pur- 
chased with knowledge of that fact. Each of these phases of 
the averment seeks to show that the merchandise itself, in the 
hands of Coleman & Carroll, was subject to be seized and sold 
under plaintiffs' attachment. If the plaintiffs succeeded in 
making good that averment, then it would have been the duty 
of the court to render judgment of condemnation, and that 
the goods be delivered up on demand, and sold by the sheriff 
in satisfaction of plaintiffs' claim. — Code of 1876, §§ 3295 et seq. 
Such proceeding seeks no money judgment against the gar- 
nishee, in the first instance. It seeks to discover property, and 
make it liable. Not so the second specification. If sufficient 
in its averments, it seeks to show that Coleman & Carroll are 
indebted, and seeks to recover a money judgment against them. 
In other words, that they are, in effect, indebted to Jackson & 
Brother. 

It is contended for garnishees, that garnishment at law is 
not the proper process for reaching a liability, such as plaintiffs 
seek here to establish. The argument is, that inasmuch as 
plaintiffs, to maintain their claim, must set aside and avoid the 
sale from Jackson to Bruner and Loeb, for fraud, thus leaving 
the ownership of the goods in Jackson, and converting Cole- 
man & Carroll into purchasers from the latter, this would be 
to claim both against and under the alleged sale to Bruner and 
Loeb. Against it, in this, that it passed no title to them ; 
under it, in this, that it enabled them to sell the goods to Cole- 
man & Carroll, and thus create a debt from the latter to 
Jackson, whom they did not know in the transaction. It is 
questionable if garnislnnent at law is flexible enough for such 
redress as this. — Godden v. Pierson, 42 Ala. 370. And it is 
equally questionable, whether such proceeding will withstand 
the test, that garnishment at law can condemn only such lia- 
bility as will support debt, or indehitaUis assum^ysit, by the 
defendant debtor against the garnishee. — 1 Brick. Dig. 175, 
§§ 313, 314; Simpson v. Tijrpin, 5 Stew. <fe For. 208; Jones 
V. Crews, 64 Ala. 368. And if such proceeding could, in any 
case, be maintained, the rights of the intermediate party — 
Bruner and Loeb in this case — could not be pronounced upon, 

Vol. lxxvi. 



1884.] OF ALABAMA. 113 

[Hodges Brothers v. Coleman & Carroll.] 

without first bringing tliem in by notice. — Moore v. Escott^ 60 
Ala. 77 ; Bcryd v'. Cobhs, lb. 82. 

We need not, liowever, consider or decide the question last 
above raised. The entire averment is, that "there was a bal- 
ance due said Bruner and Loeb & Brother from Coleman & 
Carroll." Not a word said as to the consideration, or occasion 
of snch balance of indebtedness. That the garnishees were 
indebted to Bruner and Loeb, certainly would not, without 
more, show that such indebtedness should be condemned for 
the payment of Jackson's debt. This averment, to be good, 
should have been made sufficient in itself. The demurrer to 
this specification was rightfully sustained ; and by that ruling, 
this case, in the court below, was narrowed to the inquiry, had 
Coleman & Carroll, when summoned as garnishees, merchan- 
dise in their possession, which should be condemned to the 
payment of Jackson's debt to plaintiffs. This inquiry made it 
necessary to determine, first, whether the sale to Bruner and 
Loeb was bonajide, or fraudulent; and, second, if fraudulent, 
were Coleman & Carroll bona fide purchasers for value, without 
notice. On each of these issues — fraud, or mala fides in the 
sale by Jackson to Bruner and Loeb, and notice of such fraud 
traced to Coleman & Carroll — the burden of proof was on the 
attaching plaintiffs. 

Notice, to be sufficient, need not always be actual. On the 
contrary, it is sufficient if it be constructive, or if it be shown 
tha,t the party sought to be charged had knowledge of sug- 
gestive facts, which, if followed up, would have led to a dis- 
covery of the fraud. T j come within the clause last expressed, 
the known fact or facts must be of unusual or suspicious nature, 
must have reference to the transaction sought to be impeached, 
and must so relate to it as that, if faithfully pursued and in- 
quired into, they will lead to a knowledge of the fraud com- 
mitted. Bear in mind, we are dealing now with the second 
phase of the inquiry — the question of notice to Coleman & 
Carroll, of a fraud perpetrated by Jackson and Bruner and 
Loeb on Hodges Brothers — the proof of which fraud is an en- 
tirely different matter, dependent on entirely different testimony. 
"We are dealing with tliis question, as if fraud in the sale from 
Jackson to Bruner and Loeb was conceded. It follows, that 
any testimony, lawful in form, tending to prove either of these 
disputed facts, ought to have been admitted. 

On the question of information, sufficient to stimulate in- 
quiry, two questions arise : first, the character of the person 
from whom the information comes — namely, his relations and 
intimacy with the parties from whom direct information might 
naturally be expected to come ; his connection with the trans- 
action, and his facilities for obtaining information, as well as 
8 



114 SUPREME COURT [Dec. Term, 

[Hodges Brothers v. Coleman & Carroll.] 

the degree of knowledge he displays, should all be considered, 
before the party contemplating a purchase can venture with 
safety to utterly disregard his advice. Notice coming from a 
friend or relation of the adverse claimant may be sufficient, 
while the vague reports of mere strangers have been adjudged 
not enough to charge the conscience of the purchaser. — Wade 
on Notice, § 28. 

Whatever be the source of information, to be ejffectual as a 
substitute for actual notice, it must amount to something more 
than a vague statement that the vendor's title is subject to an 
equity. Coming even from the guardian of an equitable 
claimant, the mere warning to the proposed purchaser that he 
will purchase at his peril, has been decided to be insufficient. 
Wild or general statements like these could not put the party 
upon inquiry, for the reason that they do not tend to direct his 
attention to any specilic source of knowledge ; and it is con- 
trary to reason and common sense, that one should be prevented 
from purchasing, by what he might fairly regard as the idle 
gossip of busy bodies.— /J. § 29 ; 2 Brick. Dig. 520, §§ 183, 
190. 

In this case, it would seem that Coleman & Carroll did in- 
stitute inquiry, before they made their purchase. The ques- 
tion raised in the charges is, mainly, that they did not prosecute 
the inquiry far enough, nor trace it to the proper source of 
obtainable information. The notice of circumstances, which 
it is claimed should have put them on inquiry, is predicated 
mainly of the time of the alleged sale by Jackson Brothers, 
and of the haste and other circumstances attending it. To 
these must be added, the unusual sale and shipment of consid- 
erable parts of their stock of merchandise, before the final sale. 
It was also attempted to be proved that, on the morning after 
the alleged sale at night, it was rumored in the town that the 
sale was fraudulent. General knowledge of a fact in a com- 
munity may be proved, as evidence tending to trace notice of 
such fact, its existence being otherwise shown. — 1 Brick. Dig. 
847, §§ 616, 617, 618, 619. General rumor that a particular 
sale was fraudulent, does not amount to general knowledge, or 
notoriety, and is not legal evidence tending to show notice. 
Nor is the mere general statement that a transaction is fraudu- 
lent sufficient to put a contemplated purchaser on inquiry, for , 
the reason that such notice does not tend to direct attention to 
any specific source of knowledge. 

We do not mean, in what we have said, to announce, as mat- 
ter of law, that there were no circumstances attending this 
transaction, which should have put Coleman & Carroll on in- 
quiry. The haste with which the transaction was gotten up 
and consummated ; the time chosen ; the fact that a mercantile 
Vol. lxxvi. 



1884.] OF ALABAMA. 115 

[Hodges Brothers v. Coleman & Carroll.] 

firm of some years standing should cease to exist by a sweeping 
sale of its entire merchandise in the night time ; the additional 
fact, that the purchasers did not propose to continue the busi- 
ness, but offered to resell the goods in a lot, at a price greatly 
bebw invoice rates; these, together with any other circum- 
stances outside of the usual, mercantile routine, to the extent 
they may be shown, or fairly presumed to have been linown to 
Coleman & Carroll, should have suggested inquiry. Inquiry, 
not in the brief formula, 'Is this transaction fair, and free 
from fraud?' but inquiry as to the consideration upon which 
the sale was rested. If, in such inquiry, fairly and honestly 
conducted, the transaction appear to be fair — seem to rest upon 
a just and sufficient consideration, and reserve no benefit to the 
grantor, other than what the law would secure to him, then he 
may purchase with safety, although the original transaction 
may be afterwards shown to be fraudulent. The law exacts 
of him honesty of purpose, and reasonable diligence, not infal- 
libility. 

Nor do we intend to intimate that, in the original sale from 
Jackson to Bruner and Loeb, there was necessarily fraud. All 
the attending circumstances of suspicion may be explained 
away, if there be satisfactory proof that Jaclison in good faith 
owed the alleged debts to Bruner and Loeb, that in payment 
thereof he sold the merchandise to them at not greatly less 
than their value, and it be not shown that he reserved or se- 
cured a benefit to himself. Within these restrictions, the law 
allows a creditor to be diligent — extra-diligent, if he will — to 
secure his own just claim against a failing debtor, even though, 
in doing so, he leave nothing with whicn to pay other debts. 
But, to maintain their purcliase, the burden was on Bruner 
and Loeb, and if they had notice, under the rules above, on 
Coleman & Carroll, to prove the existence of such debts from 
Jackson to Bruner and Loeb. We do not mean to say that, in 
all conditions, this duty would rest on Coleman & Carroll. 
Their liability and duty would depend on the diligence and 
fidelity with which they prosecuted inquiry, as declared above. 
Of course, if they prove that Jackson owed the alleged debts, 
that in payment of them he sold the merchandise, at a price 
not materially below its value, and there is not shown to have 
been reserved a benefit to Jackson, beyond what the law secures 
him, then the title of Bruner and Loeb was good, and the title 
of Coleman & Carroll is placed beyond the reach of Jackson's 
creditors. — Crawford v. Kirksey^ 55 Ala. 282 ; Thames v. Rem- 
hert, 63 Ala. 561 ; Lehman v. Kelly,^ 68 Ala. 192. 

It only remains to apply these principles to the several rul- 
ings of the court to which exceptions were reserved. 

The question put to the witness Jones was not objectionable 



116 SUPREME COURT [Deo. Term, 

LHodges Brothers v. Coleman & Carroll.] 

in itself. It may have been more naturally a question that 
should have come from the other side, if the witness knew, or 
was supposed to know, any thing in reply to it. Coleman & 
Carroll's knowledge of suspicious circumstances was within 
the issue being tried by the jury, and any lawful testimony 
tending to prove it, no matter by whom offered, was compe- 
tent. Hence, the question was not objectionable. The admis- 
sibility of tlie answer was a different question, which could 
have been raised only by a motion to exclude it from the jury. 
It is not shown the witness had ample opportunities of knowing 
the extent of knowledge Coleman & Carroll had, of the matter 
inquired about. — Wm'd v. Reynolds^ 32 Ala. 384. The answer 
given falls within the rule declared in Gilhert v. Gilbert, 22 
Ala. 529. But, as there was no motion to reject the answer as 
evidence, there is nothing for us to review. 

Defendants were permitted to prove that, while Bruner and 
Loeb's agent were making proposals to sell the goods to Cole- 
man & Carroll, Green, cashier of a bank in the place, informed 
them "that he thought Jackson owed Bruner a good deal of 
money." This was objected to. Offered, as it was, for the 
purpose of showing that Coleman & Carroll were making in- 
quiry as to the fairness of the transaction, this was competent 
evidence. Its sufficiency was for the jury. It was not legal 
evidence that such debt in fact existed. There was no error in 
the other rulings on evidence. 

The first and third charges asked by plaintiffs, and refused, 
present substantially the same question. Each of them affirms, 
that if the sale from Jackson to Bruner and Loeb was fraudu- 
lent, and if Coleman & Carroll bought the goods with knowl- 
edge of sufficient facts to put them on inquiry, then the jury 
must find for the plaintiffs. If these charges are correct, then 
it would seem that parties, thus notified of suspicious circum- 
stances, need not pursue the inquiry, as it can accomplish noth- 
ing. Pursuing the inquiry can not benefit them, because, ac- 
cording to the language of the charges, having knowledge of 
facts sufficient to put them on inquiry, their liability is fast- 
ened, no matter what discoveries the inquiry might lead to. 
Such is not the rule, as we have shown above. The sense and 
policy of the rule are, that parties having notice of such sus- 
picious facts or circumstances, must not blindly or recklessly 
disregard them. They must honestly and diligently make in- 
quiry — inquiry of persons best calculated to give information 
— before hazarding a purchase. And if upon such inquiry, 
lionestly and diligently made, the transaction seem to be fair 
and upon a proper consideration, then the purchase may be 
safely made, even though it be afterwards shown that the first 
sale was in fact fraudulent. It is only when known suspicious 
Vol. hxxvi. 



IH84.] OF ALABAMA. 117 

[Hodges Brothers v. Coleman & Carroll.] 

facts and circumstances are entire!}' disregarded — facts and cir- 
cumstances M'hicli, if followed up, would probably lead to a 
discovery of the fraud ; or, when such suspicious facts and cir- 
cumstances followed up, lead to confirmation of the fraud, or 
the inquiry is conducted so heedlessly and imperfectly as to 
lead to no satisfactory explanation of the attendant suspicious 
facts and circumstances, tliat notice of facts sufficient to put 
one on inquiry is the equivalent of notice of the fraud itself. 
We are speaking now of suspicious matters in jpais, and not of 
such defects as will necessarily be discovered, in tracing a chain 
of title backward. The hypothesis of the charges is not broad 
enough. The known facts must not only be such as to put on 
inquiry, but they must so relate to the transaction as to point 
to its true nature, and must be such as, if honestly and dili- 
gently pursued, will lead to a discovery of the fraud. As sug- 
gested above, the most important inquiry in this case was, the 
fact and amount of indebtedness from Jackson to Bruner and 
Loeb, and whether the transaction was a real sale, on fair con- 
sideration, reserving no benefit to Jackson. The charges as 
asked were misleading, and were rightly refused. — Crawford 
V. Kirksey, 55 Ala. 282; Lehman v. Kelly, 68 Ala. 192. 

The fault of the second charge is, that it reqiiired Coleman 
& Carroll to inquire of the parties defrauded. It could not be 
presumed they would know who were the parties defrauded, 
nor that such defrauded parties would best understand the 
factum and consideration of the alleged sale. These, as we 
have shown, were the proper subjects on which Coleman & 
Carroll should have made inquiry. 

Diligence and good faith were what the law required of 
Coleman & Carroll, in making inquiry. If they come up to 
this standard, and were reasonably convinced the transaction was 
fair and honest, it was not necessary to their protection that 
their informants should know " all the facts in evidence tending 
to show fraud." The sixth charge was properly refused. 

In what we have said above, we have simply pronounced on 
the various rulings of the court. The sufficiency of the in- 
quiry was sought to be raised by some of the charges, but, in 
such case, the charge was burdened with something else, which 
forbade its being given. 

The charge given at the instance of the garnishees presents 
the only remaining question. We have stated above what are 
the main inquiries in this case. First, was the sale from Jack- 
son to Bruner and Loeb hanajidel In other words, did Jack- 
son in fact owe them, as is claimed, and did he sell them the 
goods at a price not materially below their value, in payment 
of such indebtedness \ If this be so, notwithstanding the cir- 
cumstances attending the sale, if no benefit, other than the 



118 SUPREME COURT [Dec. Term, 

[Hodges Brothers v. Coleman & Carroll.] 

payment of his debts, was secured to Jackson, then the trans- 
action was fair in law, and Coleman & Carroll ought to recover, 
no matter how suspicious the transaction looked, or what knowl- 
edge they had of it. Such actual sale, on such consideration, 
although a preference of two, at the expense of all other cred- 
itors, the law allows. If such sale, on such consideration, be 
found to exist, then the jury need inquire no further, but 
should find for the garnishees. 

Suppose, however, this part of the transaction is not suf- 
ficiently shown to the satisfaction of the jury. Then the good 
faith with which Coleman & Carroll purchased becomes a 
material inquiry. The charge we are considering presents this 
question. Said charge asserts the right of Coleman & Carroll 
to a verdict, on the following hypothesis of facts : " That Cole- 
man & Carroll took the precaution to make an honest inquiry 
as to the right of Bruner and Strassburger to sell said goods ; 
that in making the purchase they acted on the advice of R. & 
W., who had been of counsel for Loeb & Brother and Bruner, 
and had prepared bills of sale from Jackson & Brother to them 
respectively; that they also sought the advice of Col. E. B, 
Wilkerson and Capt, H, D, Green, who at that time were con- 
nected with the only bank in the city of Troy, and were ad- 
vised that they (Coleman & Carroll) would get a good title, 
and there was no risk in making the purchase ; and that said 
Coleman & Carroll made said purchase in good faith, paid a 
valuable consideration therefor, and had no purpose to hinder, 
delay or defraud, or to aid Jackson & Brother in hindering or 
defrauding their creditors." 

We were, at first, inclined to hold this charge faulty, in that 
its recital of advice sought and obtained, was not of the facts 
which constituted the transaction. Mere opinions that a trans- 
action is free from fraud, or that a purchaser will get a good 
title, is not the sort of information one must seek, when the 
facts and circumstances put him on inquiry ; and when the 
transaction consists of matters in pais, as this did— when con- 
sideration and motive are the tests by which legality is de- 
termined — an opinion on the whole case, even by an attorney, 
that it is valid or legal, is worth nothing, unless based on a 
knowledge of the facts, such as he could testify to. We do 
not wish to underrate the value of legal advice. When given 
on undisputed facts, or on facts stated as true, then it should 
have its due weight. It is professional, or skillful knowledge. 
When, however, the validity of the sale depends primarily on 
the consideration it rests on, and, secondarily, whether any 
benefit is thereby secured to the insolvent seller, no one, not 
having personal knowledge of the actual consideration, and of 
the entire terms of the agreement of sale, can pronounce on 

Vol. lxxvi. 



1884.] OF ALABAMA. 119 

[Hodges Brothers v. Coleman & Carroll.] 

its validity. That is but a legal determination, after the facts 
are ascertained, and can not, before such ascertainment, become 
the subject of unqualified professional advice. The hypothesis, 
however, goes farther, and predicates honest inquiry and good 
faith, as elements of the defense. The charge may have been 
misleading to the average mind. If so, it presented a case for 
an explanatory charge, explaining and limiting its operation. 
1 Brick. Dig. SU, § 129 ; Callan v. McDaniel, 72 Ala. 96. 

We said above that the first inquiry in this case was, the 
question of indebtedness from Jackson & Brother to Bruner 
and Loeb, whether it was reasonably commensurate with the 
value of the goods purchased, and then, rebuttingly, whether 
any benefit was reserved to Jackson beyond what the law would 
secure to him. We said further, if the first two of these in- 
quiries be found affirmatively, and the last negatively, then the 
title of Bruner and Loeb was unassailable, and necessarily 
the title of Coleman & Carroll is good. We said this, with 
the intention that it shall be understood, and become a rule, to 
the full extent it imports. The law gives to a failing debtor 
the right to prefer one or more creditors, to the entire exclusion 
of all others, provided he keeps himself within the boundaries 
above prescribed. All he does, then, is lawfully done ; and 
the omitted creditors have no right to complain, so far. While 
he is paying an honest debt with his own effects — all of them, 
if you please — at a reasonably fair valuation, and reserving to 
himself no benefit, he wrongs no one — takes from no one any 
thing he has a right to claim. Can any unpaid creditor com- 
plain of this, simply because the seller may have had a secret 
motive for doing it, which did not benefit the seller pecuniarily ? 
What injury can such secret motive do to a non-preferred 
creditor? The act, we have seen, is lawful. Can human 
tribunals set aside a transaction, lawful in itself, because the 
actors had an evil mind in doing it? Can there be fraud in 
doing a lawful act, even thougli it be prompted by an evil 
motive, or badges of fraud, which injures no one and can in- 
jure no one, and withholds from no one any thing that he can 
lay claim to ? " Fraud does not consist in mere intention, but 
in intention carried out by hurtful acts. — Bump Fraud. Con., 
3d ed., 19. "Acts which are done in pursuance of a statute, 
can not be deemed fraudulent." — Ih. 29. "An assignment for 
the benefit of creditors, may be made for the express purpose 
of defeating an execution. The creditor may be baffied, or 
even eventually lose his debt, but there is no obstacle interposed 
between him and any property which belongs to the debtor." 
Ih. 21. " Fraud without damage is not sufficient to support 
an action, nor is it ground for relief in equity. Fraud can 
never, in judicial proceedings, be predicated of a mere emotion 



120 SUPREME COURT [Dec. Term, 

[Meyer & Co. v. Sulzbacher.] 

of the mind, disconnected from an act occasioning an injury 
to some one." — 3 Wait Ac. & Del 442, 453, and authorities 
cited ; 1 Bouv. Law Die, Fraud, 614, § 9 ; Pasley v. Freeman, 
2 T. R. 23 ; Lehman v. Kelly, 68 Ala. 192 ; Seaman v. Nolen, 
Ih. 463 ; Chamherlain v. Dorrance, 69 Ala. 40 ; Crawford v, 
Kirkmy, 55 Ala. 282 ; Holhird v. Anderson, 3 T. R. 235 ; 
Cavanhovan v. Hart, 21 Penn. St. 495 ; Wood v. Dixie, 7 
Adol. & Ellis (53 Eng. Com. Law), 892 ; Ilovntz v. Ellinger, 
31 Md. 492 ; Gassett v. Wilson, 3 Fla. 235 ; Wheaton v. 
Neville, 19 Cal. 42. 

There is no error in the record, and the judgment of the 
Circuit Court is affirmed. 

SOMERYILLE, J. — There has been some confusion hereto- 
fore in the statement of the rule by which the validity of 
alleged fraudulent conveyances made by debtors to their cred- 
itors should be tested. I understand this rule, as stated in the 
opinion of the Chief-Justice in this case, to be substantially as 
follows : When a debtor, although insolvent, or in failing cir- 
cumstances, makes an absolute sale of his property to a creditor, 
in payment of an antecedent debt, by way of preference over 
other creditors, the debt being honestly due, and the price or 
consideration received being fair and adequate, and no interest 
being reserved by the grantor, his mere fraudulent intent does 
not vitiate the conveyance, because the act itself is legal, and 
fraud without damage gives no right of action. These con- 
current facts absolutely rebut all inferences that might be 
drawn from attendant badges of fraud, and impart validity to 
the conveyance as an allbwable preference of the particular 
creditor. 

I am of opinion that this is the sound rule on this subject, 
and is sustained by both principle and authority ; and a clear 
understanding of it will obviate much confusion in the admin- 
istration of justice in our courts, by imparting to the verdicts 
of juries, in cases of this character, less of caprice, and more 
of tixed principle and uniform impartiality. 



Meyer & Co. v. Sulzbacher. 

Trial of Right of Property in Goods, between Attaching 
Creditors of Husband, and Wife as Claimant. 

1. Relieving married women of disabilities of coverture ; collateral as- 
sailmenl of proceedings. — When a decree of the chancellor, relieving a 
Vol. lxxvi. 



1884.J OF ALABAMA. 121 

[Meyer & Co. v. Sulzbacher.] 

married woman of the disabilities of coverture (Code, § 2731), is collat- 
erally assailed, all mere (luestions of pleading, which could have been 
raised by demurrer, or other direct mode of attack, must be considered 
as conclusively adjudicated ; and a liberal construction will be j>laced on 
the language of the petition, if necessary to sustain the validity of the 
decree. 

2. Same ; averments of petition as to character of estate. — An averment 
in the petition that, at the time of the petitioner's marriage, she was 
seized and possessed of certain money and property, as " her separate 
estate under the laws of Alabama," and that she lias since ac<juired 
other property, which she claims to hold as " her separate estate," is 
sufticient to sustain the decree on collateral attack, although it appears 
that the property involved is held by her as an equitable estate. 

3. Same ; decree conferring power " to contract and he contracted imth," 
in addition to statutory powers. — If the decree, going beyond the words 
of the statute, confers not only the powers particularly designated, but 
also the additional power " to contract and be contracted with as afemme 
sole," these words will be regarded as mere surplusage on a collateral 
attack, and their insertion will not affect the validity of the decree. 

4. When married woman may maintain statutory claim suit. — A mar- 
ried woman who has been relieved of the disabilities of coverture under 
this statute, being authorized " to sue and be sued as a,femme sole," may 
maintain a statutory claim suit in her own name,alone, for property seiz- 
ed under attachment against her husband. 

5. Sale and conveyance of goods by husband to wife; when valid as 
against his creditors. — A sale and conveyance of goods by a husband to 
his wife will not bo held fraudulent at the instance of his creditors, not- 
with.standing "many badges of fraud and circumstances of suspicion 
and bad faith on his part," when the evidence fails to implicate the wife 
in any of these transactions, or to charge her with notice of the husband's 
fraudulent intent ; and even if she participated in his fraudulent intent, 
but took the goods in absolute payment of an honest debt, at a fair and 
adequate price, no benefit whatever being reserved to him, the inference 
of fraud is rebutted, and the transaction will be sustained against the 
creditors of the husband. 

From the City Court of Selma. 

Tried before the Hon. Jona. Haralson. 

This was a statutory trial of the right of property in and to 
a stock of goods, between M. Meyer & Co., attaching creditors 
of George Sulzbacher, as plaintiffs, and Mrs. Bertha Sulzbacher, 
the wife of said defendant, as claimant. The plaintiff's' attach- 
ment was sued out on the 2d December, 1882, on the ground 
that the defendant " has money, property or effects, liable to 
satisfy his debts, which he fraudulently withholds, and has 
fraudulently disposed of his property ;" and it was levied by 
the sheriff, on the same day, " on stock of goods belonging to 
said George Sulzbacher, in store-house recently occupied by 
him, in the city of Selma, consisting of dry-goods, groceries, 
&c." The stock of goods was claimed by Mrs. Sulzbacher 
under a bill of sale from her husband, which was dated December 
2d, 1882, attested by two witnesses, and in these words : 
" Whereas I am justly and lawfully indebted to my wife, Ber- 
tlia Sulzbacher, who is a free-dealer, in the sum of $2,450, as 
is evidenced by my note to her for that sum, dated Sept. 8, 



122 SUPKEME COUKT [Dec. Term, 

[Meyer & Co. v. Sulzbacher.] 

1878, and due one day after date ; andwhereasl am unable to 
pay said debt in cash, but have agreed to convey and transfer 
to her the goods, wares and merchandise shown by the inven- 
tory here attached, and now in my store on Water street in the 
city of Sehna, at the prices shown in said inventory ; and 
whereas my said wife has agreed to receive such goods in part 
payment of said note, to the amount of $1,498.57, and to sur- 
render and cancel said note, and to receive from me, for the 
balance due thereon, my note for the sum of $951,43, payable 
twelve months after date, with interest thereon from date: 
Now, therefore, in consideration of the surrender of said note, 
the receipt of said goods for said sum in part satisfaction there- 
of, and the extension of the balance due from me, I have, and 
by these presents do grant, bargain, sell and convey all the goods, 
wares, merchandise, furniture and fixtures, in the store now 
occupied by me, and shown by the said schedule and inventory. 
Witness my hand," &c. 

On the trial, as appears from the bill of exceptions, the 
claimant offered in evidence, for the purpose of establishing 
her right to maintain the action in her own name, a 
decree in chancery removing her disabilities of coverture, 
together with the petition on which said decree was founded. 
The petition was filed in the name of Mrs. Bertha Sulzbacher, 
" who is the wife of George Sulzbacher. by her next friend, 
Solomon Lehman ;" was addressed to Hon. Jona. Haralson, 
" judge of the City Court of Selma, sitting as chancellor,"" and 
contained these allegations : " That in the year 1874 she inter- 
married with the said George Sulzbacher ; that your petitioner, 
at the time of her said marriage, was over the age of twenty- 
one years, and was possessed of certain money and other prop- 
erty, which was her separate estate under the laws of Alabama ; 
that since said time your petitioner has acquired other money 
and property, which was and is her separate estate as aforesaid ; 
that her said husband has, for many years past, been engaged 
in merchandising in the city of Selma, but, owing to the finan- 
cial troubles to which the country has been subjected since the 
year 1873, by which many persons who were largely indebted 
to him have become insolvent, he has become unable to pay his 
debts, and is now wholly insolvent ; that your petitioner wishes 
to employ her said separate estate in merchandising, as her 
husband is experienced in that business, and can in this way 
best employ her said means. Your petitioner therefore prays, 
that she may be decreed, for the purposes aforesaid, to be de- 
clared Q.fem.me sole^ and that she may be relieved of the disa- 
bilities of coverture, as to her statutory and other separate es- 
tates, and that she may be invested with the right to buy, sell, 

Vol. lxxvi. 



1884.] OF ALABAMA. 123 

[Meyer & Co. v. Sulzbacher.] 

hold, convey and mortgage real and personal property, and to 
sue and be sued as a femme sole.'''' 

The petition was filed in vacation, on the 22d August, 1877, 
and the written consent of the petitioner's husband was indors- 
ed upon it. The decree was rendered on the same day, and, 
after stating the filing of the petition, and the husband's assent 
thereto, proceeded thus : " Having considered said petition, I 
am of the opinion that the prayer thereof should be granted. 
It is therefore ordered, adjudged, and decreed, that Bertha 
Sulzbacher, the wife of George Sulzbacher, of Dallas county, 
Alabama, be, and she is hereby, relieved of the disabilities of 
coverture, as to her statutory and other separate estates; and 
she, the said Bertha Sulzbacher, is hereby invested with the 
right to buy, hold, sell, convey and mortgage real and personal 
property, and to contract aiid be contracted with, to sue and be 
sued, to plead and be impleaded as a femme sole^ 

" The plaintiffs objected to the introduction in evidence of 
said petition and decree, on the ground that the same were and 
are null and void on their face ; and on the further ground, 
that said proceedings did not operate to remove the disabilities 
of coverture of the claimant, as to her statutory separate estate ; 
and on the further ground, tliat said proceedings did not operate 
to remove said disabilities of coverture, as to the claimant's 
equitable separate estate." The court overruled these objec- 
tions, and admitted the evidence ; and the plamtiffs excepted. 

The plaintiffs sought to impeach the transfer of the stock of 
goods by said George Sulzbacher to his wife, on the ground of 
fraud ; and for this purpose they introduced evidence showing 
that, on said 2d December, 1882, he owed them about $775, 
and also owed other debts amounting to between $2,500 and 
$3,000 ; that these debts were contracted, in great part, in the 
preceding months of September, October and November; that 
one of the plaintiffs called at his store on the morning of De- 
cember 2d, demanded payment of their debt, and told him they 
had been informed that he had transferred his stock of goods 
to his wife on the previous night ; and that Sulzbacher then 
denied that he had made such transfer, or contemplated making 
any, and promised payment in a few days. It was admitted 
that said Sulzbacher had no other visible property than that 
which was in his said store. On the part of the claimant, her 
answer as garnishee was taken as her testimony in the cage, in 
which she stated, substantially, that her father had given her, 
in Bavaria, Germany, $1,500 in United States currency, which 
her husband afterwards borrowed from her, but subsequently 
returned ; and again borrowed it in September, 1877, "to buy 
goods for her and carry on the drug business ;" that he took 
the goods on hand from her^ in September, 1878, when she 



124 SUPREME COURT [Dec. Term, 

[Meyer & Co. v. Sulzbaclier.] 

qnit business, and gave her his note for $2,450 as the price, 
wliicli note was produced ; that when she took the transfer of 
the goods, in part payment of the note, she did not know that 
he owed any other debts ; that the inventory was made out by 
him and his clerks, during the niglit of December 1st, and the 
bill of sale was signed on the morning of December 2d. On 
all the evidence adduced, which it is unnecessary to state at 
length, the case having been submitted to the decision of the 
court without the intervention of a jury, the court found the 
issue in favor of the claimant, and rendered judgment accord- 
ingly ; to which ruling and judgment the plaintiffs duly ex- 
cepted. 

The judgment of the court, and its rulings on the evidence, 
as above stated, are now assigned as error. 

Bkooks & Roy, fqf appellants.— (1.) The proceedings set up 
as removing the claimant's disabilities of coverture are void, 
both for the want of jurisdictional facts apparent on the face 
of the petition, and because the chancellor's decree exceeds his 
jurisdiction. The averments of the petition relate to a statu- 
tory estate, while the property here involved, if it belongs to 
the claimant, is her equitable estate. — Meyer tfc Co. v. Sulzhachei\ 
at last term ; Pollak <& Co. v. Graves, 72 Ala. 350 ; Block 
Bros. V. Maas <& Block, 65 Ala. 211. That the proceedings 
are void, see Cdhen v. WoUner, 72 Ala. 238 ; Ashford v. Wat- 
kins, 70 Ala. 160 ; Dreyfus v. Wolfe, 65 Ala. 496. (2.) If 
the proceedings are valid, they did not disrupt the marital rela- 
tion, nor destroy the trusteeship of the husband. — Cook v. 
Meyer Bros., 73 Ala. 582. The wife's estate being equitable, 
the legal title was in her husband, and she could not maintain 
the action in her own name. — Meyer <& Co. v. Sulshacher, at 
last terra ; McMillan v. Peacock, 57 Ala. 127 ; Helmetag v. 
Frank, 61 Ala. 69 ; Ooodlett v. Hansell, m Ala. 161. (3.) There 
was no legal consideration for the sale and conveyance of the 
goods ; the sale by the wife to her husband, in September, 1878, 
and the re-sale by him to lier, were expressly prohibited by law, 
and were illegal and void. — Code, § 2709 ; Sajitmarsli v. Tut- 
hill, 13 Ala. 410 ; Shipley v. Eastwood, 9 Ala. 200 ; Pollak <& 
Co. V. Graves, 72 Ala. 350. (4.) The sale and conveyance 
were fraudulent and void as against the creditors of the hus- 
band. His fraud was patent and flagrant, and the facts proved 
establish the wife's knowledge, connivance, and participation 
in the fraud of her husband. 

W. R. Nelson, contra. — (1.) The question of fraud, as now 
presented by the record, is the same as on tiie former appeal, 
when the judgment was reversed solely on the ground that the 

Vol. lxxvi. 



1884. J OF ALABAMA. 125 

[Meyer & Co. v. Sulzbacher.] 

claimant, not having the legal title, could not maintain the 
action in her own name. On the undisputed facts, no fraud 
can be imputed to Mrs. Sulzbacher, who was simply obtaining 
the payment of an honest debt. — Crawford v. Kirksey^ 55 Ala. 
282 ; (Jrommelin v. McCauley, 67 Ala. 542 ; Smith v. Spencer,. 
73 Ala. 301 ; Otis v. Maguire, at present term, (2.) The 
chancellor's decree expressly confers on Mrs. Sulzbacher the 
right to sue and be sued as ?i femme sole ^ and her right to 
maintain the suit depends upon the validity of that decree. 
The petition contains tiie necessary averments to give the court 
jurisdiction, and any superfluous averments will be rejected as 
surplusage. — King v. Boiling, at last term ; Wj'ight v. Ware, 
54 Ala. 549 ; 29 Ala. 542. The decree may go beyond the 
words of the statute, and may be void as to the excess of 
power attempted ; but it is here collaterally assailed, and the 
only question arising under it is as to the grant of power to 
sue and be sued as a femme sole. — King v. Boiling, at last 
term ; Wilson v. Wils&n, 18 Ala. 176 ; Wolff e v. Eherlein, 74 
Ala. 99 ; Freeman on Judgments, § 45 ; Gray^s Admh's v. 
Cruise, 36 Ala. 563. 

SOMERVILLE, J. — The rulings of the court in this case 
necessarily raise the inquiry as to the validity of the chancery 
proceedings, by which, in August, 1877, Mrs. Sulzbacher was 
decreed to be relieved of her disabilities of coverture, under 
the provisions of section 2731 of the Code (1876). It is urged 
by the appellants' counsel, that these proceedings should be 
adjudged void, for one or more reasons apparent upon their face. 

The first objection taken is, that the petition to the chancellor 
failed to make a case within his jurisdiction, as conferred by 
the statute, which gives him, either in term time or in vaca- 
tion, authority " to relieve married women of the disabilities 
of coverture, as to their statutory and other separate estates, so 
far as to invest them with the right to buy, sell, hold, -convey 
and mortgage real and personal property, and to sue and be 
sued 2i^fernnfies sole.'''' This jurisdiction can be exercised only 
upon a petition filed by the wife, through her next friend, con- 
taining the requisite jurisdictional allegations, the truth of 
which must be proved as in other chancery cases, or else as- 
sented to by the husband in writing. — Code, § 2731. The 
particular defect suggested in the petition is, that it fails to 
aver that the wife had any eqnitahle separate estate, which is 
the kind shown to be involved in this suit. There is an aver- 
ment, however, in tiiis petition, that the wife was seized and 
possessed of certain money and property, at the time of lier 
marriage in 1874, which is alleged to have been " her separate 
estate under the laws of Alabama," and that she had also ac- 



126 SUPREME COURT [Dec. Term, 

LMeyer & Co. v. Sulzbacher. J 

quired other money and property which she claimed to hold 
as " her separate estate." The prayer of the petition is, that 
she may be relieved of the disabilities of coverture, *■' as to her 
statutory and other separate estates," and that she may be 
invested with "the right to buy, sell, hold, convey and mort- 
gage real and personal property, and to sue and be sued as a 
femiine sober 

We can entertain no sort of doubt that, under the averments 
of the petition, the chancellor acquired jurisdiction. In Cohen 
V. Wollner, 72 Ala. 233, we decided, that the wife's petition 
must aver that she has some sort of separate estate, statutory 
or equitable; and this being a jurisdictional allegation, the 
omission of it would render the entire proceedings void. In 
that case, there was no averment that the petitioner owned any 
kind of property whatever — either a statutory or an equitable 
separate estate, one of which it must necessarily have been. 
In the present case, there is no such defect. There is an aver- 
ment of the wife's ownership of property, which is character- 
ized to be " her separate estate under the laws of Alabama," 
and also of other property, designated simply as "her separate 
estate." Whether either of these averments was the subject 
of criticism, as a mere matter of pleading, we need not inquire. 
That would have been a proper question, if the petition had 
been assailed on direct appeal ; and upon its consideration, all 
intendments would have been made against the pleader. But, 
upon a collateral attack, like the present, after the petition has 
matured into a decree, under which rights of property have 
attached, a different rule is held to prevail. "Then, every 
reasonable intendment, in the construction of the language of 
the petition, must be in favor of the validity of .the paper. 
Under a different rule, designing persons might withhold ob- 
jections for amendable defects, until after the proceedings had 
terminated, and rights had attached, and then vitiate the whole 
proceeding, thus converting a court of justice into a snare." 
King V. Kent, 29 Ala. 542 ; Bibh v. Bishop Cohhs Orphans^ 
Home, 61 Ala. 326. All mere questions of pleading, which 
could have been raised by demurrer, or other direct mode of 
attack, must be considered as conclusively adjudicated ; and a 
liberal construction, if necessary, will be placed upon the 
language of the petition, in order to maintain the validity of 
the judgment which has been pronounced upon it by a court 
of competent jurisdiction. — Wright v. Ware, 50 Ala. 549 ; 
King V. Boiling, 75 Ala. 306. 

A correct application of these well-settled principles forbids 
that we should hold these proceedings to be void, on account 
of this alleged defect of averment, and in a case where the 
record is made an object of collateral assailment. 

Voii. LXXVI. 



1884.] OF ALABAMA. 127 

[Meyer & Co. v. Sulzbacher.] 

It is further contended, that the decree of the cliancellor is 
void, because it goes further than tlie statute authorizes, by 
conferring upon the petitioner, not only the appropriate " right 
to buy, hold, sell, convey and mortgage" her separate estate, 
with the right " to sue and be sued as a fevtme sole^'' but also 
the inappropriate power " to contract and he contracted with^^ 
of which the statute makes no designation. In Hatcher v. 
Diggs, decided at the present term, we held, that the attempt 
to confer the general power "to contract and be contracted 
with," in a case of this character, was unavailing, and that the 
decree was void, at least to that extent. This is manifest, be- 
cause the chancellor has no jurisdiction, which can alone be 
derived from the statute, to confer such a right upon a married 
woman, under any possible state of circumstances. — Dreyfus 
V. Moljfe, 65 Ala. 496. As said in Ashford v. Watkins, 70 
Ala. 156, 162, "a general capacity to contract is carefully with- 
held." In the latter case, a decree was held void, which 
attempted to confer upon a married woman the power to mort- 
gage a particular piece of property, in order to obtain an addi- 
tion to a stock of merchandise with which she was carrying on 
the business of a sole trader — " a capacity," it was said, " she 
has not at common law, or under the statute creating separate 
estates." The underlying principle of that decision is, that 
the powers authorized by the statute to be conferred must be 
all conferred, or withheld together, as an entirety, and that 
this jurisdiction can not be exercised by piece-meal. There are 
manifest objections to placing any other construction upon this 
statute, which readily suggest themselves without presentation 
by argument. The decree in this case is not subject to such a 
criticism. It confers upon the petitioner each and every 
power which is authorized to be conferred by law. The power 
conferred is commensurate with the statute creating it, and is 
entire and not fractional. The additional right of contracting 
and heing contracted with, which was not prayed for in the 
petition, and which the chancellor had no power to grant, being 
void, must be deemed mere surplusage, and can not be held to 
affect that portion of the decree which would be confessedly 
good without it. There is no sufficient reason why the maxim 
should not apply, Utile der inutile non mtiatur — the useful is 
not vitiated by the useless. — Wolfe v. Eherlein, 74 Ala. 99, 
106-107 ; Freeman on Judg. (3d Ed.), § 135, and note 1 ; Chase 
V. Christ ia7ison, 41 Cal. 252. 

The wife was clearly the only proper party to the present 
claim suit, which was instituted in her name alone. The de- 
cree, removing her disabilities of coverture, expressly author- 
ized her " to sue and be sued as a fem,ine sole^'' and this right 
was conferred pursuant to the very words of the statute. — Code, 



128 SUPEEME COURT [Dec. Term, 

[Childress v. Calloway.] 

1876, § 2731 ; Warren v. Wagner, 75 Ala. ; Coolc v. Meyer 
Bros., 73 Ala. 580, 586. 

We do not feel authorized to pronounce the sale of the goods 
in controversy, made by Sulzbacher to his wife, to be fraudu- 
lent. There are many badges of fraud in the case, with cir- 
cumstances of suspicion and bad faith on the part of the 
grantor ; but the evidence fails to implicate the grantee in any 
of these transactions, or to charge her with notice of the alleged 
fraudulent intention of the grantor. Moreover, the sale of the 
goods being shown to be in absolute payment of a debt, proved 
to be due by Sulzbacher to his wife, and the price paid being 
fair and adequate ; and no interest being reserved by the 
grantor, the preference was one authorized by law, and the 
fraudulent intent of one or both parties would not vitiate the 
transaction, because, the act of preference itself being legal, 
fraud without damage would give no right of action. This is 
the rule announced in Hodges Bros. v. Coleman (& Carroll, 
at the present term ; ante, p. 103. In that case we said, " These 
concurrent facts absolutely rebut all inferences that might be 
drawn from attendant badges of fraud, and impart validity to 
the conveyance as an allowable preference of the particular 
creditor." 

We find no error in the record, and the judgment of the 
City Court is aftirmed. 



Childress v. Calloway. 

Statutory Heal Action, in nature of Ejectment. 

1. Sale of lands for taxes ; certificate and deed to ptirchaser or assignee. 
Under the provisions of the Revenue Law of 1868, which was in force in 
1870-71, when lands were sold for unpaid taxes, and purchased by the 
State, the certificate of purchase was transferrable only by the auditor 
of public accounts, though a certificate of redemption was required to be 
made by the probate judge; and a conveyance executed by the probate 
judge to a person who is not the original purchaser, and to whom the 
certificate of purchase has not been assigned by the auditor, being with- 
out legislative authority, is a mere nullity. 

2. Color of title, and adverse possession. — A conveyance which, though 
invalid, may operate as color of title, does not draw to it constructive 
possession, and does not, of itself, tend to prove adverse possession ; 
though, where there is title, or color of title, and no antagonistic posses- 
sion is shown, actual possession of a part of the land will be regarded as 
possession of the entire tract within the boundaries specified. 

3. Adverse possession invalidating conveyance. — Cutting and removing 
timber from wild lands, unfit for any other use, may amount to a posses- 
sion, and, when done under color of title, may constitute a disseizin ; 

Vol. lxxvi. 



1884.] OF ALABAMA. 129 

[Childress v. Calloway. 1 

but cutting a small quantity of timber on two occasions, at an interval of 
one year between the two, when the land is shown to be good for grazing 
and farming purposes, and suitable for a'' homestead, " is not an act so 
distinct, notorious and continuous" as will invalidate a conveyance by 
the owner of the legal title. 

4. When recovery may be had on tax-title. — The plaintiff in ejectment, 
or the statutory action in the nature of ejectment, must recover on the 
strength of his own title ; and when he claims under a tax-title, at a sale 
made prior to the 12th January, 1879, he must show a compliance with 
all the provisions of law antecedent to and authorizing the sale, no pre- 
sumptions being made in favor of its regularity. 

5. Possession as evidence of title ; outstanding title in third person. 
Prior peaceable possession, under claim of ownership, is, ordinarily, 
sufficient to authorize a recovery against a mere trespasser; and he can 
not defeat it by showing an outstanding title in a third person, with 
which he does not connect himself ; but, where plaintiff's prior posses- 
sion had ceased before the defendant entered, the latter may show the 
outstanding title of his vendor at the time of such prior possession. 

Appeal from the Circuit Court of Baldwin. 

Tried before the Hon. Wm. E. Clarke. 

This action was brought by William Childress against Rufus 
B. Calloway, tenant in possession, to recover the possession of 
certain parcels of land, which were described in the complaint 
as subdivisions of sections eleven (11) and two (2), township 
nine (9), range four (4), east; and was commenced on the 29th 
March, 1883. William R. Orrell was let in to defend, as land- 
lord of the defendant ; and he entered a disclaimer as to some 
portions of the land described in the complaint, defending o*ily 
as to three parcels, containing 320 acres; and as to these parcels 
he pleaded not guilty, adverse possession for five years, and ad- 
verse possession for three years with a suggestion of the erec- 
tion of valuable improvements. On the trial, as appears from 
the bill of exceptions, the plaintiff deduced title to the lands 
under a conveyance executed to him by the probate judge of 
said connty, dated August 20, 1874, and a subsequent deed ex- 
ecuted for the purpose of correcting some inaccuracy in the 
first; and he reserved exceptions to the rulings of the court 
excluding these deeds as evidence. As these deeds are suffi- 
ciently described in the opinion of the court, it is unnecessary 
to state their contents. Orrell claimed the lands under a con- 
veyance to himself from the widow and children of John V. 
Wallace, deceased, who died in 1864; and he offered in evi- 
dence said conveyance, which was dated the 13th June, 1877, 
and a patent from the United States to said Wallace, which 
was dated December 1st, 1860. The plaintiff objected to the 
admission of the deed to Orrell as evidence, " because the evi- 
dence shows that defendant had admitted plaintiff's title, and 
because plaintiff was, at the date of said deed, in adverse pos- 
session of the land therein described ;" and he excepted to the 
overruling of these objections. 
9 



130 SUPREME COURT [Dec. Term, 

[Childress v. Calloway.] 

Before the introduction of tlie defendant's deeds, the plaintiff 
had testified, as a witness in his own behalf, " that under his 
said deeds" [from the probate judge], he went, to the best of 
his judgment, into possession of the lands now in controversy, 
and walked across and all over them ; that he got possession of 
the iirst deed on the 29th August, 1874; that in June, 1875, 
and perhaps in the fall of 1876, he cut a small quantity of pine 
timber from said lands ; that said Orrell went upon the land in 
the latter part of May, 1877, built upon it, and commenced to 
possess and live on it ; and that said Orrell has, since his said 
entry, and during his occupancy, cut and used from the land 
timber to the value of S350." He testified, also, on cross- 
examination, "that he did not at any time cultivate, inclose, or 
build on any part of said land, but had, in the fall of 1875, 
and he believed in the fall of 1876, cut a small number of pine 
logs from each of said parcels, but not more than one hundred 
in all ; that he did not cut any timber in any other years ; that 
on sundry occasions, in passing across the land, through which 
a road ran, he saw other persons standing on it, or traversing 
it; that he built a log camp, in 1875, on other lands he owned 
near the lands sued for, but not on said lands ; that he took no 
possession of the land after getting the second deed from the 
probate judge, nor did any act thereon whatever, save to tra.vel 
across it. He testified, also, that said lands were partly pine, 
partly hammock, black-jack, water-oak and hickory land, and 
were in fact principally valuable for the pine timber; that it 
was well suited for a homestead, was good grazing land, and 
moderate farming land ; that in May, 1877, hearing that Orrell 
had gone on the lands, he went there, and found Orrell getting 
boards on some land near this, and conversed with him, and 
told him not to buy the land, as he (witness) claimed it, and 
forbade him to build on it ; that said Orrell answered, ' he 
thought there must be some mistake about it, but he would go 
and see the parties he bought from ; ' that he (witness) went 
immediately to Judge (lasque" [probate judge], "and got him 
to make said corrected deed ; that said Orrell, as witness 
learned, moved on the land within fifteen days after said con- 
versation, and, with those claiming under hiin, has continued 
to occupy, cultivate and live on said land, claiming it adversely 
as his own ; that he (witness) had no more to do with said land 
after getting said corrected deed, save in court by suing de- 
fendant, and relied on his supposed right of action against 
Orrell for damages; that bethought his deed gave him the 
possession of the land, and did nothing further on the land, 
nor further disturbed Orrell's possession, though he afterwards 
crossed over a portion of it." 

This was all the evidence in reference to the plaintiff's alleged 

Vol. lxxvi. 



1884.] OF ALABAMA. 131 

[Childress v. Calloway.] 

possession of the land, and was all the evidence before the 
jury, on the part of the plaintiff, when he moved to exclude 
the defendant's deeds, as above stated. Said Orrell testified, on 
behalf of the defendant, " that lie went upon said lands in the 
year 1877, just a few days before or after the execution of said 
deed to him by the Wallaces, made improvements, and built 
thereon, under said deed ; and that if he entered before getting 
the deed, it was on the promise of said grantors to make said 
deed, which they did make shortly afterwards." To this por- 
tion of said Orrell's testimony, " about his niaking the improve- 
ments on the promise of said Wallaces to make him a deed, 
plaintiff objected, because no bond for title, or other written 
contract, was shown ;" and he duly excepted to' the overruling 
of the objection. Orrell further testified, " that he built a 
dwelling and other houses, stables, fences and inclosures, and 
planted orange and apple orchards, and cultivated the lands 
named in his plea, in the year 1877, and lived on the lands 
until a recent .period, when he placed said E.. B. Calloway on 
the land as his tenant, who had occupied the land under him 
ever since ; that the lands were suitable in part for cultivation, 
and for orange culture, and in bulk were mainly suitable for a 
stock-range and for stock-raising ; and that his iraprovements 
are now worth $600." 

This was all the evidence ; and the court thereupon charged 
the jury, at the request of the defendant, that they must find 
for him, if they believed the evidence. The plaintiff excepted 
to this charge, and he now assigns it as error, together with 
the several rulings of the court in the admission and exclusion 
of evidence, as above stated. 

Ja8. Cobbs, for the appellant. — It was material for the 
plaintiff to show his prior possession, and the extent thereof ; 
and whether his tax-deeds were good or bad, they were color of 
title, and were competent as evidence to show the extent of his 
possession. — Dillingham v. Brmon, 38 Ala. 311 ; Allen v. Kel- 
lam.^ 69 Ala. 447 ; Ilerhertv. HanricTc, 16 Ala. 596 ; Bancum 
V. Jenkins^ 65 Ala. 268 ; Hum v. Fuller, 54 Ala. 145 ; Wil- 
son V, Glenn, 68 Ala. 386 ; Bell v. Benson, 56 Ala. 448 ; Elli- 
cott V. Pearl, 10 Peters, 412. The evidence shows that Orrell 
had not purchased the land, when plaintiff first found liim on 
it, and forbade him to build, and that he then left it, thereby 
admitting plaintiff's possession and right. His subsequent entry, 
made fifteen days afterwards, was a trespass, and he could claim 
nothing, as against plaintiff, under his deed from the Wallaces. 
Rivers v. Thompson, 43 Ala. 640 ; Ladd v. Buhroca, 61 Ala, 
28 ; Bridges v. McLendon, 56 Ala. 327 ; Bernstein v. Humes, 
60 Ala. 602 ; Brad^haw v. Mnory, 65 Ala. 208 ; Bussell v. 



132 SUPREME COURT [Dec. Term, 

[Childress v. Calloway.] 

Erwin, 38 Ala. 48 ; Ftigh v. Younghlood, 69 Ala. 296. Being 
himself a trespasser, defendant could not set up an outstanding 
title in a third person ; nor could he, in any event, set up the 
outstanding title of the Wallaces, who were barred, before he 
purchased, by the expiration of five years from the tax-sale. 
Lassiter v. Lee, 68 Ala. 290 ; Pugh v. Younghlood, 69 Ala. 
296 ; 15 La. Ann. 76. 

CLOPTON, J.— The appellant brought the statutory real 
action to recover the possession of lands, to which he claimed 
title under two deeds, executed by the probate judge — one, 
August 29, 1874, and the other. May 21, l'^77 ; the latter deed 
having been made to correct a misdescription of the lands in 
the first deed. 

From the recitals of the deeds it appears, that the lands in 
controversy were sold by the tax-collector, in May, 1871, for 
taxes due for the year 1870, and were bid off in the name of 
the State. By the Revenue Law in force at the 1;ime of this 
sale, the tax-collector was required, when real property was sold 
for taxes, aiid purchased by an individual, to make out and de- 
liver to the purchaser a certificate of purchase, which was as- 
signable by indorsement, and the assignment thereof vested in 
the assignee and his legal representatives all the right and title 
of the original purchaser. If the real property- was bid off in 
the name of the State, the tax-collector was required to make a 
certificate of purchase to the State, which was transferable by 
the Auditor, the same as a certificate of purchase made to an 
individual. 

Real property, sold for taxes, and purchased by the State, 
was subject to the same rules of redemption as when purchased 
by individuals. The right to redeem was conferred upon "the 
owner, his heirs, or legal representatives ;" and upon the appli- 
cation of any party to redeem, the probate judge, being satisfied 
of his right, upon payment of the amounts required by the law, 
issued a certificate of redemption, which was countei'signed by 
the treasurer, and was not evidence of such redemption, with- 
out the signature of the treasurer. If the real property was 
not redeemed within the time allowed by law, all the right, 
title and interest of every person whomsoever, in and to such 
real property, were transferred to, and vested absolutely in the 
State. 

These provisions of the Revenue Law show, that if real 
property, sold for taxes, and purchased by the State, was re- 
deemed, the probate judge issued a certificate of redemption, 
and, if not redeemed, the mode of transferring the title of the 
State, provided by the law then in force, was by an indorsement 
of the certificate of purchase by tlie Auditor. — Acts 1868, pp. 

Vol. lxxvi. 



1884.] OF ALABAMA. 133 

[Childress v. Calloway.] 

3J 9-321. By tlie act of March 8, 1876, the Auditor was au- 
thorized, when one or more parcels, or a large parcel of land is 
included in one certificate of purchase, instead of transferring 
such certificate to any person paying out a portion of the lands, 
to give such person a certificate, showing such payment, and in- 
cluding a description of the lands so p^id out. — Acts 1875-6, 
p. 100. 

A conveyance, made by the probate judge, without legisla- 
tive authority, does not pass the title of the owner of lands 
sold for taxes. The only authority conferred upon the probate 
judge, in this respect, by the llevenue Law of 1868, or the law 
of 187-1, was, to make a deed to the purchaser, or the assignee 
of the certificate of purchase, after the expiration of the time 
for redemption, the land remaining unredeemed. The plaintiff 
was neither the purchaser, nor the assignee of the certificate of 
purchase. The deeds offered to be introduced in evidence are 
inoperative as muniments of title — are mere nullities. 

The defendant was, at the commencement of the suit, in 
possession of the lands as the tenant of William Orrell, who 
claimed under a conveyance from the widow and heirs of John 
Wallace, who was the patentee, and who died in 1864. The 
patent and conveyance were in evidence. It is insisted, that 
the deeds of the probate judge constituted color of title, al- 
though invalid, and are admissible in evidence to show posses- 
sion in the plaintiff, and the extent of his possession, at the 
time the conveyance to Orrell was executed. A conveyance 
which is invalid, but may, under proper circumstances, operate 
as color of title, does not draw to it constructive possession, 
and, by itself, does not tend to prove adverse possession. 
While color of title is not an essential element of adverse pos- 
session, it is necessary that the possession be actual, visible and 
notorious. Where there is title, or color of title, possession of 
every part of the land is not required ; for, in such case, if 
there be no antagonistic possession, a possession of a part will 
be regarded as a possession to the boundary specified. " The 
possession must always be as definite as the character of the 
land is susceptible of, and must be evidenced by public acts, 
such as a party would exercise over his own property, and 
would not exercise over another's ; must be continued, and so 
notorious, that the owner may reasonably be presumed to have 
notice of the possession, and of the claim of title." — Farley v. 
jSmith, 39 Ala. 38. The cutting and removing of timber from 
wild lands, unfit for any other use, may amount to a posses- 
sion, and, if accompanied by color of title, may constitute a 
disseizin. But the cutting of a small quantity of timber on two 
occasions in 1875 and 1876, from land which, although princi- 
pally valuable for the pine timber, is good grazing, and moderate 



134 SUPREME COURT [Dec. Term, 

[Childress v. Calloway.] 

farming land, well snited for a homestead, and possession is 
not continued, is not an act so distinct, notorious and continuous, 
as the rule requires, to vitiate a conveyance. — Farley v. Smith, 
8V{pra I Rivers v. Thompson, 46 Ala. 335. Unless accom- 
panied by evidence from which an inference may properly be 
drawn, that the plaintiff was in the actual, visible possession 
of the lands at the time the conveyance to Orrell was executed, 
the deeds are not admissible to show the extent of possession. 

It is sufficient, however, to sustain the ruling of the court, 
that the deeds were offered, not as an element of an adverse 
possession, but as a muniment of title, and as such are inopera- 
tive. — Boykin v. Smith, 65 Ala. 295. 

To maintain the statutory real action, there must exist a 
present right of entry and of possession on the part of the 
plaintiff, and a wrongful possession by the defendant. — Callan 
V. McDaniel, 72 Ala. 104. " The general and well established 
rule, in cases of ejectment, is, that the plaintiff is required to 
recover, if at all, upon the strength of his own title, and not 
upon the mere weakness of his -adversary's." — Wilson v. 
Glenfi, 6S Ala. 383. If his right to recover depends upon a 
tax-title, having its origin in a sale made prior to the passage 
of the act of February 12, 1879, he must show that all the 
provisions of the law, antecedent to, and authorizing the sale, 
nave been substantially complied with. No presumption can 
be raised to cure any substantial defect in the proceedings, and 
the proof of regularity devolves upon the party who claims 
under such title.— Oliver v. Iiobinso7i, 58 Ala. 46. 

As against a mere trespasser, " a bare peaceable possession by 
an actual occupant, under claim of ownership, is ordinarily 
sufficient to authorize a recovery ; and such trespasser can not 
defend successfully by showing an outstanding title, with 
which he in no way connects himself." Actual occupancy, 
and the fact that the defendant is a mere trespasser, must 
concur, to preclude the defendant from showing paramount 
title in a third person. Prior possession, if sufficient to create 
a presumption of title, may be rebutted, by showing title in the 
defendant, or an outstanding title in another where the defend- 
ant is not a mere trespasser. — Wilson v. Glenn, supra. Al- 
though the plaintiff had prior possession, with a claim or color 
of title, if his possession had ceased, and he was not in the 
actual adverse occupancy of the lands, at the time the convey- 
ance to Orrell was executed, the defendant may show such 
outstanding title to defeat a recovery. 

The legal title was in Orrell, and the only inference that can 
be properly drawn from the evidence, as set out in the bill of 
exceptions, is, that when the plaintiff ceased to cut timber off 

Vol. Lxxvi. 



1884.] OF ALABAMA. 135 

[Mobile & Montgomery Railway Co. v. Brewer.] 

tlie lands, his actual possession ceased, and he was not in the 
actual possession at any time tiiereafter. 

Tiiere is no error in the charge of the court, and the judg- 
ment is affirmed. 



Mobile & Montgomery Railway Co. v. 

Brewer. 

Action against Surety on Penal Bond^ for Default of 

Principal. 

1. AppoiiUment of agent ; duration of appointment, and liability of 
sureties for difault. — When an agent of a private corporation is appointed 
for a specified term, and gives bond for the faithful performance of his 
duties under his appointment, his sureties are not liable for defaults 
committed after the expiration of that term, and while he was acting 
under a re-appointment; but, where the appointment is temporary and 
experimental, a right to revoke it being expressly reserved, and no term 
is specified for its duration, while the bond is conditioned for the faithful 
discharge of the duties of the office " during the time he holds said ap- 
pointment, and until he is relieved therefrom," the liability of the sureties 
continues until the appointment is revoked, either expressly, or by the 
acceptance of a new appointment. 

2. Discharge of surety, by extension of debt without his assent. — Any 
extension of the debt by the creditor, for valuable consideration, without 
the consent of the surety, di.'scharges the latter from liability ; but taking 
the principal debtor's note for a debt past-due, payable one day after 
date, is not an extension of the debt ; and taking a mortgage to secure 
the payment of su(;h note, does not postpone the day of payment, affect 
the right to sue on the note, or discharge the surety. 

Appeal from the Circuit Court of Mobile. 

Tried before the Hon, Wm. E. Clakke. 

This action was brought by the appellant, a domestic corpora- 
tion, against Thomas P. Brewer, and was founded on a penal 
bond executed by the defendant as surety for one E.. P. Priester, 
which was dated June 1st, 1877, and conditioned as follows : 
" Whereas the above-bound II. P. Priester has been, by said 
Mobile & Montgomery Railway Company, appointed freight- 
agent at Mobile Station, which appointment has been accepted 
by said P. P. Priester ; now, then, if the said P. P. Priester 
shall, during the time he holds said appointment, and until he 
is relieved therefrom, well, truly and faithfully discharge all 
the duties of his said appointment, and account for and pay 
over all moneys or property that may come into his possession, 
to or for the use of said Mobile & Montgomery Railway Coni- 



136 SUPREME COURT [Dec. Term, 

[Mobile & Montgomery Railway Co. v. Brewer.] 

pany, and faitlifully obey all the rules and regulations of said 
company, and all orders issued by authority of said company ; 
then, and in that case, these presents, and all contained therein, 
shall be null and void ; otherwise to remain," &c. 

The original complaint contained a single count, which 
averred, as a breach of the bond, that the said Priester " did 
not account for, and pay over to plaintiff, $10,000 of money, 
which came to his possession, to or for the use of said plaintiff ;" 
but an amended complaint was afterwards filed, containing four 
special counts, which averred, as breaches of the bond, said 
Priester's failure to pay over money which he had collected as 
plaintiff's agent, his failure to account for property which went 
into his possession as such agent, his failure to collect bills 
which went into his hands for collection, whereby the freight 
and charges due, as therein specified, were wholly lost to 
plaintiff, &c. Eleven pleas were filed by the defendant, which 
presented in substance, though differing in form, three defenses : 
Ist, a general denial of any default committed by Priester, 
during the period covered by the bond ; 2d, an averment that 
Priester's appointment as agent, during the time covered by 
the bond, was only temporai-y, and was terminated and revoked 
by a subsequent re-appointment at a higher salary ; and, 3d, an 
extension of the debt or default, by plaintiff's acceptance of a 
note and mortgage from Priester, after the default had oc- 
curred, without the defendant's knowledge or assent. De- 
murrers were filed to several of these pleas, and special 
replications to others ; and the rulings of the court on these 
special pleadings, adverse to the plaintiff, are made the founda- 
tion for eleven of the twenty-two assignments of error; but a 
full statement of the pleadings is not necessary to an under- 
standing of the points decided by this court. 

It was shown that said Priester was appointed freight-agent 
at Mobile for the plaintiff, by E. L. Tyler, the vice-president 
and acting superintendent, in the latter part of May, or the 
first of June, 1877, and that he continued in the discharge of 
the duties of the office, until the 10th or 11th October, 1879, 
when a " shortage " of over ten thousand dollars was discovered 
in his accounts, and he fled from the State. As to the terms 
of his appointment, said Tyler, whose deposition was taken by 
the defendant, thus testified : " I was appointed vice-president 
of said railway company in April, 1877, the duties of general 
superintendent also devolving on the vice-president; and I 
held the position until March, 1880. I became acquainted 
with him [Priester] when I took charge of the road, and my 
acquaintance with him was the same as with the other employees 
of the road. Some time in or about May, 1877, I appointed 
him freight-agent at Mobile. The office was about to become 
Vol. lxxvi. 



1884.] OF ALABAMA. 137 

fMobile & Montgomery Railway Co. v. Brewer.] 

vacant by the resignation of Mr. Pegram, the former agent. 
Tiie resignation too]< effect the same day as Priester's appoint- 
ment, and he was appointed for the purpose of relieving Pe- 
gram. He had been worl<ing in the freight-office at Mobile, 
under Pegram ; and I sent for him to come to Montgomery, 
and said to him, as nearly as I can recollect, that I would ap- 
point him Pegram's successor, but with the understanding that 
the appointment should be considered an acting one, until such 
time that I was thoroughly satisfied he was competent to fill 
the position. I had full authority to fill the position, without 
reference to the president or board of directors. . . I have 
no recollection of any conversation with him as' to his'salary, 
and do not remember how much he got, or was to get ; but the 
pay-rolls of the company will show, as all salaries were paid up 
in full monthly. . . I have no recollection of any conver- 
sation with him relative to his giving a bond. It was the rule 
of the road, that all agents should give bonds, graduated in 
ainount according to the business expected to be transacted at 
the station. 1 he bond was prepared by either the auditor or 
the treasurer. I do not know who handed it to Priester or his 
sureties, and can not say how long he retained it. It was 
eventually returned to me, and handed by me to the auditor 
for safe-keeping ; but was never laid before the board of direc- 
tors, so far as I know. I was authorized to accept it." 

Priester himself, whose deposition was twice taken by the 
defendant, thus testified : " During the latter part of May, 
1877, 1 was notified to report to Capt. E. L. Tyler, vice-president 
of said railway company, at Montgomery. I did so, and was 
told by him that Mr. Pegram, the agent at Mobile, had re- 
signed, and that I had been suggested as a suitable person to 
fill the vacancy. He then told me that he would appoint me 
temporary agent, or acting agent, until such time as he was 
satisfied that I was fully competent to fill the position, when 
he would make the appointment permanent. After some 
further talk, about wages, &c., I left him. I took charge of 
the office. I think, on the 1st June, 1877. . . I told Mr. 
J3rewer and Mr. Ilurst, at the time they signed the bond, that 
it was only for a temporary appointment, but that I expected 
to be appointed permanently after awhile, and thought it would 
be necessary for me to give a new bond. . . As to the 
amount of salary I received at first, I am not positive, but it 
was at the rate of ^1,500 or $1,600 per annum ; and it re- 
mained at that figure until July, or August, when I was paid 
at the rate of $2,000 per an?ium. I think it was in July, 1877, 
that I had a talk with Capt. Tyler, regarding my position, and 
the amount I was to receive. I remember distinctly telling 
him, that if I was competent, an(^ gave satisfaction, I wanted 



138 SUPREME COURT [Dec. Term, 

f Mobile & Montgomery Railway Co. v. Brewer.] 

as much money for my services as was paid to Mr. Pegram — 
that is, $2,000. lie answered, ' We will tnake that all rights 
or words to that effect. I never wrote to Capt. Tyler regarding 
the changing the nature of my appointment, nor did he write 
to me on the subject. On or about the 15th of the month fol- 
lowing [said conversation], and afterwards, I was put down on 
the pay-roll at $166.66, and received that amount monthly." 

Priester was arrested in New Orleans, on the day after his 
flight, and was brought back to Mobile ; and on the 13th Octo- 
ber, 1879, while under arrest, he executed to the plaintiff a 
mortgage of a house and lot in the city of Mobile, in which 
his wife joined wnth him, and which contained tiie following 
condition : " Whereas the said R. P. Priester is indebted to the 
said Mobile & Montgomery Railway Company in a large sum, 
the amount of which has not been ascertained with accuracy, 
but which is admitted to be greatly in excess of the value of 
the above-described property ; now, therefore, should the said 
R. P. Priester make good his said debt in ten days from date 
hereof, then this instrument to be void ; otherwise, the said 
Mobile & Montgomery Railway Company maj', through its 
agents, enter and take possession of said property, and sell the 
same, at public or private sale, and credit the proceeds thereof 
upon the account of said R. P. Priester. Witness our hands," 
&c. On the same day, Priester also executed to the plaintiff a 
mortgage of certain personal property, as follows : " Whereas 
I am indebted to the Mobile & Montgomery Railway Company 
in a large sum, not now accurately ascertained ; now, for repay- 
ment of said sum in part, I hereby sell and convey to said Mo- 
bile & Montgomery Railway Company all my household furni- 
ture now in my dwelling; said property to be taken on the 
same conditions as my house has this day been conveyed on ; 
also, all the money now in the hands of Wm. H. Williamson, 
belonging to and taken from me, except $1,200 which he is to 
hold subject to further action ; also, all monej's due to me and 
in the People's Savings Bank ; also, my two drays and mules, 
and my large double wagon. All said property to be taken by 
said company, and converted into money, and credited on my 
said debt to said Mobile & Montgomery Railway Company." 

Exceptions were duly reserved by the plaintiff to several rul- 
ings of the court below in the rejection of evidence, and these 
several rulings are here assigned as error ; but, as they are not 
specially noticed by this court, it is unnecessary to state them. 

In the general charge to the jury, the court used this lan- 
guage : ^'' Defendant says, that Priester gave plaint'iff a con- 
veyance, to which this condition was annexed^'' quoting the 
words of the condition of the mortgage. " Defendant says, 
that was an extension of the deht. This is for you to sayP 

Vol. lxxvi. 



1884.] OF ALABAMA. 139 

[Mobile & Montgomery Railway Co. v. Brewer.] 

•To tin's portion of the cliarge an exception was reserved by the 
plaintift", and also to the refusal of a charge asked, which in- 
structed the jury that the conveyances above set out "do not 
give time to said Priester for the payment of such amount as 
he may have owed said company, so as to discharge the sureties 
from any liability they may have been under to said company 
at the time by reason of the bond now in suit; nor does either 
of said conveyances liave that effect." 

Exceptions were also duly reserved by the plaintiff to several 
charges given l)y the court at the instance of the defendant, 
among which were the following : 

" If the jury believe, from the evidence, that Priester was 
appointed plaintiff's acting agent at Mobile Station, and was to 
hold such aj)pointment until E. L. Tyler, the vice-president of 
said company, became thoroughly satisfied that he was compe- 
tent to fill the place; and if they tind, from the evidence, that 
he did become thoroughly satisfied with the competency of said 
Priester at the time his salary was raised, and that the bond 
was given for that appointment only ; then the liability on said 
bond ceased from the time the evidence shows that his wages 
were raised." 

" If the jury believe, from the evidence, that Priester was 
appointed plaintiff's acting feight-agent at Mobile Station, until 
such tiuje that E. L. Tyler, vice-president of said company, was 
thoroughly satisfied he was competent to fill the position ; and 
if they further believe, from the evidence, that said Tyler after- 
wards became satisfied that he was competent to fill the posi- 
tion ; and that defendant signed said bond for said Priester as 
acting agent only ; and that the j^laintiff afterwards raised the 
salary of said Priester, and intended thereby to make said ap- 
pointment permanent, and to terminate said appointment of 
acting agent ; then they must find for the defendant, unless the 
evidence satisfies them that the alleged default occurred during 
such acting appointment." 

The adverse rulings of the court on the pleadings and evi- 
dence, the charges given, and the refusal of the charges asked, 
to which exceptions were reserved, are now assigned as error. 

G. L. Smith, for appellant. — (1.) The condition of the bond 
binds the defendant as surety for Priester's faithful perform- 
ance of the duties of freight-agent at Mobile, "during the time 
he holds said appointment, and until he is relieved therefrom ;" 
and whether the appointment was temporary or permanent, the 
surety is estopped from denying his liability for defaults com- 
mitted during the time covered by the condition. — Williamscyn 
cfe Mc Arthur v. Wool/, 37 Ala. 303. (2.) It was the duty of 
the court to construe tlie mortgages executed by Priester to the 



140 SUPREME COURT [Dec. Term, 

[Mobile & Montgomery Railway Co. v. Brewer.] 

plaintiff, and to instruct the jury as to their legal effect ; and 
the court erred in subinitting this question to the jury, as wds 
done in the general charge given. — Price v. Jfasange, 31 Ala. 
701; Taylor v. Kelly, 31 Ala. 59. (3.) The error of this 
charge can not be said to be error without injnrj", on the ground 
that the court ought to have construed the mortgages against 
the plaintiff ; for they do not extend the payment of the debt, 
though giving time before the property can be sold, the value 
of which is stated and shown to be much less than tlie amount 
of the debt ; and the acceptance of such an instrument does not 
discharge the surety, though made without his consent. — Brandt 
on Sureties, § 320 ; Burke v. Kruger, 8 Texas, 66 ; Pendexter 
V. Vernon, 9 Humph. 84 ; Bank of Penn. v. Potius, 10 Watts, 
148 ; Morgan v. Martein, 32 Mo. 438 ; Oxley v. Storer, 54 111. 
159 ; WilliaTns v. Townsend, 1 Bosw. N. Y. 411 ; Brengle v. 
Bns/iey, 40 Md. 141 ; Thurstan v. James, 6 R. I. 103 ; Ilead- 
lee V. Jones, 43 Mo. 235 ; Scankmd v. Settle, Meigs, Tenn, 169 ; 
Twopenny v. Young, 3 B. & C. 208. 

L. H. Faith, and Overall & Bestor, contra. — (1.) The 
sureties on the bond were only bound for Priester's acts under 
his " said appointment," the term or duration of which, not 
being stated in the bond, might be shown by parol. — Kitson v. 
Julian, 4 El. & Bl. 854 ; Insurance Co. v. Clark, 33 Barb. 
196 ; TIassell v. Bong, 2 M. & S. 370 ; Montgomery v. Ihighes, 
65 Ala. 201 ; Rapier v. Insurance Co., 57 Ala. 100; Holland 
V. Bea, 9 Exch. 430 ; Railway Co. v. Whinray, 10 Exch. 77 ; 
Commonwealth v. Faii'fax, 4 H. & M. 208 ; So. Car. Society 
V. Johnson, 10 Amer. Dec. 644; Brevier v. King, 63 Ala. 511. 
The temporary appointment being terminated by the perma- 
nent appointment at an increased salary, the liability of the 
sureties ceased before any default occurred. (2.) The convey- 
ances executed by Priester give time for the payment of the 
debt, and, being executed without the assent of the sureties, 
discharged them. — 0-ray^s Executors v. Brown, 22 Ala. 262 ; 
White V. Life Association, 63 Ala. 419 ; Insurance Co. v. Ran- 
dall, 71 Ala. 220 ; Comegys v. Cox, 1 Stew. 262 ; Ellis v. Bihh, 
2 Stew. 63 ; Inge v. Br. Bank, 8 Porter, 108 ; Cox v. Rail- 
road Co.. 37 Ala. 320 ; Pyke v. Searcy, 4 Porter, 52 ; Iladen 
V. Brown, 18 Ala. 641; Carpenter v. Devon, 6 Ala. 718; 
Boxdthee v. StuMs, 18 Yesey, 20 ; Pucker v. Rapp, 67 N. Y. 
464 ; Place v. McUvain, 38 N. Y. 96 ; Smarr v. Schnitter, 38 
Mo. 478; Lea v. Dozier, 10 Humph. 447 ; Smith v. Clapton, 
48 Miss. QQ ; 14 Gray, 528 ; 3 Allen, 14 ; 5 Gush, 43 ; 10 
Paige, 11; 78 111. 257. 



Vol. lxxvi. 



1884.] OF ALABAMA. 141 

iMobile & Montgomery Railway Co. v. Brewer.] 

STONE, C. J. — We have examined the evidence in this 
cause with great care, and we fail to find any thing which 
tends, in the least, to show that Mr. Priester received more 
than one appointinejit as freight agent of the appellant corpo- 
ration. Giving to Priester's testimony the extremest interpre- 
tation, the appointnient was experimental, with a reserved right 
to revoke, of which notice was given at the time. The experi- 
ment proved satisfactory, and there was no revocation and no 
reappointment. The bond, therefore, stands as a guaranty that 
he will faithfully discharge the duties of the office, or trust 
committed to him, "during the time he holds the said appoint- 
ment, and until he is relieved therefrom." We w\\\ not gain- 
say the position contended for, that the appointment might 
have been for a specified time, or term. The charter, or by- 
laws of the corporation, might have required that, or the ap- 
pointing power might have elected to fix a term to its duration ; 
or a second appointment might have been made, which would 
necessarily have terminated the first. Nor will we deny that 
such fact, or facts, if they existed, might be shown by oral 
])roof. In either of the categories supposed,, the sureties on a 
first bond w'ould not be liable for a default under a second ap- 
pointment. — Rapier v. Louisiana Eq. Life Lns. Co., 57 Ala. 
100; Kitson v. Julian, 4 Ellis & BI. 854; Ilassell v. L^mg, 
2 M. & S. 3t)8 ; N. W. Raihoay (Jo. v. Whinray, 10 Exch. 
77; Holland v. Church-warden, 9 Welsby, H, & G. 430; 
Brexoer v. L{ing, 63 Ala. 511; So. Car. Soc. v. Johrison, 10 
Amer. Dec. 644 ; Com. v. Fairfax, 4 Hen. & Munf. 208. 

The Circuit Cgurt should have ruled, that there w^as no evi- 
dence before the jury tending to show that the liability of 
Priester and his sureties on their bond ceased before his ap- 
pointment was revoked, October 11th, 1879. 

In Sweeney v. Bixhr, 69 Ala. 539, the question arose, 
whether Bixler, who had received a n)ortgage from one Smith, 
was a purchaser, in that sense which would override a latent 
equity asserted by Sweeney. Bixler's claim was past-due, and 
Smith gave him his note for it, due at one day, which we held 
to be no extension of the time of payment. On the same day. 
Smith executed a mortgage to Bixler, conveying to him the 
property in controversy, as security for the payment of the 
note. Bixler was bound by the mortgage not to enforce it, if 
the Smith note was paid by a named day, some four months 
afterwards. Bixler, at tins time, had no knowledge of 
Sweeney's equity. If the postponed day of foreclosure pro- 
vided for in the mortgage had the effect of postponing the 
maturity and collectibility of the debt, then there was a new, 
contemporaneous consideration, which would constitute Bixler 
a purchaser as against Sweeney. We said : " The extension of 



142 SUPREME COURT [Dec. Term, 

[Mobile & Montgomery Railway Co. v. Brewer.] 

time, within which the mortgage might be foreclosed, was no 
suspension of the right to collect the debt." We held that 
Bixler was not a purchaser, and gave effect to Sweeney's 
equity. 

In Brandt on Suretyship, § 320, it is said : " It has been re- 
peatedly held, that the mere fact that the creditor takes from 
the principal a mortgage, or trust-deed of property, as collateral 
security for the debt for which the surety is liable, which ma- 
tures after the maturity of such debt, does not, of itself, in 
the absence of an agreement to that effect, extend the time, or 
discharge the surety." In support of this view the authorities 
are overwhelming. — U. 8. v. Hodge^ 6 How. 379; Pendexter 
V. Vernon, 9 Humph. 84; Bnrke v. Cruger, 8 Texas, QQ\ 
Bank of Penn. v. Potius, 10 Watts, 148; Morgan v. Martien, 
32 Mo'. 438 ; Twopenny v. Young, 3 Barn. & Cress. 208 ; 
Thurston v. James, 6 R. I. 103 ; Scanland. v. Settle, Meigs, 169. 

There is a single Tennessee decision — Lea v. Dozier, 10 
Humph. 447 — which holds the contrary doctrine. That court 
did not, however, note the fact, that it was overruling Pen- 
dexter V. Yernon, in the volume immediately preceding. 

The authorities are uniform, that any extension of the debt 
of the principal — any disabling of the creditor's right to sue, 
no matter for how short a time — granted on a valuable consid- 
eration, and without the assent of the surety, discharges the 
latter. — Inge v. Branch Bank of Mobile, 8 Por. 108; Car- 
penter V. Devon, 6 Ala. 718; Iladen v. Brown, 18 Ala. 641 
Cox V. M. & O. R. R. Co., 37 Ala. 320; MoUle Life Ins. Co 
V. Randall, 71 Ala. 220; Boulthie v. Stuhhs, 18 Yes. 20 
Pucker v. Rapp, 67 N. Y. 464 ; Chase v. Brooks, 5 Cushing, 
43 ; Carkin v. Savory, 14 Gray, 528 ; Yeazie v. Carr, 5 Allen 
14 ; Smarr v. Schnitter, 38 Mo. 478 ; Headlee v. Jones, 43 Mo 
235. This case does not fall within the principle, as there was 
no agreement binding the creditor not to institute suit for the 
recovery of Priester's indebtedness. 

It was the duty of the Circuit Court to construe Priester's 
conveyance of the personal property, and his mortgage of the 
homestead ; and he should have told the jury, that neither of 
them tended, in the least, to absolve the sureties from liability 
on the bond, further than they diminished the default. 

We need not apply these principles to the various rulings 
excepted to. We have detected no error in the rulings on tes- 
timony. 

Reversed and remanded. 



Vol. i-xxvi. 



1884.] OF ALABAMA. 143 

[Owen V. Bankhead.] 



OTven V. Bankhead. 

Bill in Equity to enforce Vendor's Lien on Land. 

1. Decree, enforcing vendor's lien; when not binding on heirs of deceased 
purchaser, nor ivaiver of lien as against them. — A vendor of lands having 
iiled a bill in etiuity to enforce Iiis lien, making the widow of the de- 
ceased purchaser a party, both personally and as administratrix, but not 
bringing in the heirs, in whom the legal title was vested; having ob- 
tained a decree subjecting the lands to sale, and becoming himself the 
purchaser at the sale under the decree ; the proceedings are void as 
against the heirs, but can not be construed as an intentional waiver of 
the vendor's right to enforce his lien against them in another suit. 

2. Same; fling claim against insolvent estate. — The note for the unpaid 
purchase-money having been reduced to judgment by the decree rendered 
in the suit against the widow and administratrix, the filing of this decree 
as a claim against the insolvent estate of the deceased purchaser, within 
the time allowed by law, is sufficient to preserve the claim as a subsist- 
ing demand. 

3. Who are proper parties plaintiff. — The vendor having sold and con- 
veyed the land, with covenants of warranty, after his purchase at the 
sale under his abortive decree, and his grantee being evicted by the 
heirs of the deceased purchaser, he (or his ])ersonal representative) and 
his grantee may join as complainants in a bill to enforce the lien against 
the heirs. 

Appeal from the Chancery Court of Lawrence. 

Heard before tlie Hon. Thos. Cobhs. 

The bill in this case was filed on the 13th August, 1878, by 
Mrs. Martha H. Owen and Edward P. Schackelford, the latter 
suing as the administrator of the estate of M. W. Mayes, de- 
ceased, against Wm. S. Bankhead and others, as the personal 
representatives and heirs at law of George M. Garth, deceased ; 
and sought to enforce an alleged vendor's lien on land for the 
unpaid purchase-money, under the following state of facts, as 
alleged in the bill, and shown by the exhibits thereto : 

The land was sold and conveyed by said M. W. Mayes to 
said Garth on the 3d December, 1859, at the agreed price of 
$3,000 ; for which sum said Garth executed his two promissory 
notes to said Mayes, for $1,950 each, payable on the 1st Janu- 
ary, 1861, and 1862, respectively, with interest from the 1st 
January, 1860. Garth died in April, 1862, never having paid 
either of said notes ; leaving his widow, who afterwards became 
the wife of said Wm. S. Bankhead, and two infant children, as 
his heirs at law and the distributees of his estate. Letters of 
administration on Garth's estate were granted to his widow, on 
the 23d April, 1866 ; and said notes for the purchase-money 



144 SUPKEME COURT [Dec. Term, 

[Owen V. Bankhead.] 

were duly presented to her, within eighteen months afterwards, 
as claims against his estate. The first of said notes, maturing 
on the 1st January, 1861, was transferred by said Mayes, for 
valuable consideration, at what time does not appear, to Isaac 
'N. Owen. Afterwards, on the 5th April, 1867, said Mayes 
filed his bill in equity against the widow and administratrix of 
said Garth, and against said Isaac IST. Owen as the holder and 
owner of the first note, alleging the non-payment of the notes, 
the transfer of the first note to said Owen, and asking that the 
lands be sold in payment and satisfaction of the two notes. 
The bill alleged, by mistake, that Mayes had never executed a 
conveyance of the lands to said Garth, but had retained the 
legal title in himself, and had given a bond for titles to be made 
on the payment of the purchase-money ; and the heirs of Garth 
were not made parties to the suit. At the May term of the 
court, 1868, a decree was rendered in favor of the complainant, 
ascertaining that the amount due him, principal and interest, 
on the note which he had retained, was $3,258.23 ; and order- 
ing a sale of the lands by the register, unless this amount 
should be paid by the administratrix within ninety days. The 
lands were sold by the register, under this decree, in Septem- 
ber, 1868 ; said Mayes becoming the purchaser, at the price of 
$100, and afterwards receiving a deed frou) the register, on the 
confirmation of the sale by the court. 

The estate of said Garth was reported insolvent by the ad- 
ministratrix, and was so declared by the Probate Court on the 
17th August, 1868; and a copy of said decree in chancery, 
duly verified by affidavit, was filed as a claim against the estate, 
as the dates are copied in the transcript, on the 12th May, 1869. 
(It is said in the brief of appellees' counsel, that this is a mis- 
take, and that the claim was in fact filed on the 20th August ; 
and reference is made to an agreement, which does not appear 
in the record, that the error may be corrected.) Mayes entered 
into possession of the land under his purchase, and, in Decem- 
ber, 1868, sold and conveyed it to Mrs. Martha Owen, who was 
his daughter, and put her in possession ; and she purchased the 
other note from said Isaac N. Owen, about the same time. In 
November, 1872, Mrs. Garth having married said W. S. Bank- 
head, they, as the personal representatives of said Garth, with 
his infant heirs, filed their petition in said chancery cause, 
which was by amendment converted into a bill, seeking to set 
aside the sale and purchase of the lands under the decree in 
favor of Mayes; alleging the inadequacy of the price, the tiling 
of the decree as a claim against Garth's estate, and the fact 
that the heirs were not parties. In answer to this petition, or 
bill, Mayes filed a disclaimer, alleging his sale and conveyance, 
with covenants of warranty, to Mrs. Owen ; and he having 

Vol. lxxvi. 



1884.] OF ALABAMA. 145 

[Owen V. Bankbead.] 

afterwards died, the cause was revived against E. P. Shackel- 
ford as his administrator. An answer was also filed by Mrs. 
Owen and l»er husband, demurring to the bill, for want of 
equity, and claiming protection as purchasers. The cause be- 
ing submitted for decree on pleadings and proof, the chancellor 
dismissed the bill for want of equity, but without prejudice ; 
this decree being rendered on the 9th February, 1874. The 
heirs then brought an action of ejectment for the land, and re- 
covered a judgment in 1876, Mrs. Owen then filed a bill in 
equity, as the assignee of the note transferred to her by said 
Isaac N. Owen, asserting a vendor's lien on the land for its 
payment ; but, on appeal to this court, her bill was dismissed. 
Bankhead v. Owen^ 60 Ala. 457-68. 

On these facts, as alleged in the bill and shown by the ex- 
hibits, the bill prayed that an account be taken to ascertain the 
amount of purchase-money still due and unpaid, and that the 
lands be sold for the payment of the amount as ascertained ; 
" or, if complainants have mistaken the relief to which they 
are entitled, that the court will decree that the said heirs of 
said George M. Garth have no interest, as against complainants, 
in and to said lands, and that the said sale by the register in 
chancery may be held good as against said heirs ; or, if com- 
plainants are mistaken in the specific relief herein asked," then 
for otiier and further relief under the general prayer. 

A joint answer to the bill was filed by Bankhead and wife, 
in which they incorporated a demurrer, assigning the following 
as grounds of demurrer : 1st, " there is a misjoinder of com- 
plainants, because the bill shows that Mrs. M. H. Owen has no 
interest in the subject-matter of the suit ;"' 2d, " there is a mis- 
joinder of complainants as to said E. P. Shackelford as admin- 
istrator of said Mayes, because the bill shows that the cause of 
action in tiiis suit has been adjudicated in said suit of Mayes 
against said Catherine, as the administratrix of said Garth's 
estate, and said Isaac N. Owen, and that the decree of this 
court in that suit is res adjudicata, and a bar to any relief in 
this suit ;" 3d, " the bill shows that the vendor's lien sought to 
be enforced was waived, abandoned and lost by said Mayes on 
16th December, 1872." 

The chancellor overruled the demurrer, on the grounds 
specifically assigned, but nevertheless dismissed the bill, on the 
ground that there was a misjoinder of complainants ; and his 
decree is now assigned as error. 

WArrs & Son, and John Phelan, for appellants. — (1.) There 

is no misjoinder of coiiiplainants. — Gunter v. Williams, 40 

Ala. 561 ; Iliie/wock v. U. S. BanJc, 7 Ala. 386 ; Blachwell v. 

Blackwell, 33 Ala. 57; Blevins v. Buck, 26 Ala. 202 ; Laiii&i- 

10 



146 SUPREME COURT [Dec. Term, 

[Owen V. Bankhead.] 

V. Hill, 25 Ala. 554 ; Hair v. Avery, 28 Ala. 267 ; Gerald v. 
McKenzie, 27 Ala. 166 ; Gannard v. Eslava, 20 Ala. 732 ; 
Ploicman v. Riddle, 14 Ala. 169 ; Auerhach v. Pritchett, 58 
Ala. 451. (2.) Mayes certainly liad a vendor's lien on the land, 
as against Garth, his widow, and his heirs. — Hightower v. 
Rigsby, 56 Ala. 126; Simpson v. JfcAllister, 56 Ala. 28 ; Bu- 
ford V. McCoTinick, 57 Ala, 428 ; Bankhead v. Owen, 60 Ala. 
457. This lien has never been satisfied ; and it must still 
exist, unless it has been waived, abandoned, or foi'feited. (3.) 
The proceedings in the former suit were fruitless, because the 
heirs of Garth, in whom the legal title was vested, were not 
parties to the suit ; and the decree was, as to them, a nullity. 
Hunt V. Acre, 28 Ala. 580, The legal title is yet in them, but 
they can not claim to be purchasers for value. The decree 
obtained in that suit has been regularly filed as a claim against 
Garth's insolvent estate. — Thornton v. Moore, 61 Ala. 347, 
The validity of the decree being thus preserved, and the estate 
of Mayes being liable under his covenants of warranty to Mrs, 
Owen, she is entitled to enforce the lien against the heirs, 
without regard to the transfer of the note by Isaac N, Owen. 

Cabaniss & Ward, contra. -(1.) Mrs. Owen and the per- 
sonal representative of the estate of Mayes can not, with 
propriety, unite as complainants in this suit, since any theory 
of the case which sustains the right of either one of them to 
relief necessarily excludes the right of the other. If the bill 
is to enforce the vendor's lien for the unpaid purchase-money, 
the administrator of Mayes is the only proper complainant, be- 
ing the owner and holder of the unpaid note ; and if to enforce 
an equitable estoppel against Garth's heirs, Mrs. Owen is the 
only proper complainant. If the bill is to be regarded as filed 
in a double aspect, the two aspects are inconsistent and repug- 
nant. — Ashnrst v. Micou, 55 Ala. 607. Mrs. Owen's right to 
relief is based on the breach of the covenants of warranty con- 
tained in Mayes' deed to her, for which she has an adequate 
remedy at law ; and a court of equity has no jurisdiction to 
apply the assets of his estate in discharge of this liability. — 
uill V. Armistead, 56 Ala. 118, (2.) The decree in the suit 
of Mayes against the widow and administratrix of Garth is 
conclusive as a bar in this case. By that suit and decree, 
Mayes split his cause of action, and he can not now (nor can 
his administrator) sue for the residue ; else he might maintain 
a separate suit against the widow and each of the heirs, though 
there were twenty, and obtain a decree in each case for the 
balance of the debt after exhausting his lien. — 1 Brick. Digest, 
26, § 89 ; 2 Ih. 145, § 203, (3.) Mayes waived his lien on the 
land — Ist, by claiming the benefit of the decree for the balance 
Vol, lxxvi. 



i«84.] OF ALABAMA. 147 

[Owen V. Bankhead.] 

of liis debt, after applying net proceeds of sale, as a claim 
against the insolvent estate of his debtor; 2d, by his disclaimer 
of record, in answer to the petition to set aside the sale ; 3d, 
by electing to claim the benefits of his decree and purchase, 
nnder which he entered into possession, and received the rents 
and profits of the land for eight years. His decree was for 
$3,258.23, bearing interest, and was for the balance of his debt 
after exhausting his lien on the land (Code, § 3908) ; and claim- 
ing the benefit of this decree, he is estopped from denying that 
his lien is extinguished. (4.) The claim is barred by the statute 
of non-claim. The unpaid note has never been filed as a claim 
against Garth's insolvent estate, and the chancery decree was 
not tiled until after the expiration of the time allowed by law. 
Half man v. Ellison^ 51 Ala. 243 ; Watson v. Rose, 51 Ala. 
292 ; Sharp v. Flerrin, 32 Ala. 502 ; Bell v. Andrews, 34 Ala. 
538 ; Owen v. Co7'bitt, 57 Ala. 92. If the decree was filed in 
time, it would not help the complainants, since it is only for 
the balance of the debt after extinguishment of the lien, and 
is conclusive as to the extinguishment of the lien. 

SOMERVILLE, J. — It is not contended that a vendor's lien 
on the land in controversy did not exist in favor of Mayes, the 
original owner, after the sale made by him to Garth, on the 3d 
December, 1859. This lien certainly existed without any 
specific agreement, as an incident to the contract of sale, and 
was enforceable, not only against the vendee, but all others 
who were not purchasers for value without notice, unless it had 
in some way been lost by waiver or abandonment. 

It is our opinion that this Hen was not waived, or abandoned, 
by the unsuccessful attempt to enforce it in the chancery suit 
commenced in April, 1867. The legal title of the land was at 
this time vested in the heirs of George M. Garth, the vendee, 
he having died since the sale. By some oversight, or other- 
,wise, they were not made parties to this proceeding. The only 
parties defendant were the widow of Garth, who was ^so his 
personal representative, and one Isaac Owen, who was assignee 
of one of the notes for the purchase-money. The legal title of 
the land, therefore, was not before the court, no one being 
made a party who had any ownership in it. The widow's only 
interest was a right of dower, which, without actual assignment, 
was no estate in the land, either legal or equitable, but a mere 
right action, not the subject either of sale or transfer, but only 
of release to the terre-tenant by way of extinguishment. — Salt- 
marsh V. Smith, 32 Ala. 404 ; 1 Brick. Dig. p. 615, § 42. The 
decree of the Chancery Court, seeking to condemn the land to 
the payment of the purchase-money, was, for this reason, una- 
vailing. It reached no interest in the land which was the snb- 



148 SUPREME COURT [Dec. Term, 

•I 
[Owen V. Bankhead.] 

ject of condemnation or sale. When Mayes purchased under 
the decree, therefore, he obtained no title to this land whatever. 
The whole proceeding was entirely void as against the heirs, 
who were no parties to it in any way. As to them, the 
attempted condemnation, sale and purchase of the lands, were 
as if they had never been — an absolute legal nullity, — Hunt v. 
Aere^ 28 Ala. 580. The whole question of waiver is one of 
fact, or legal intention deducible from ascertained facts ; and 
if this intention remains in doubt, the vendor's lien must be 
held to attach.— 2 Story's Eq. § 1224 ; Tedder v. Steele, 70 
Ala. 347. We can perceive no reason why the inadvertent 
omission of material parties to a suit, who are the exclusive 
owners of the title of land sought to be subjected, should be 
construed into an intentional waiver of a valuable right against 
them, when the proceeding does not bind them, and is as to 
them a nullity. It does not present the case of an attempt to 
subject a fractional part of the entire land. It is an abortive 
attempt to subject the whole, rendered unsuccessful by a mis- 
taken omission of necessary parties. 

The note having been reduced to judgment, by the rendition 
of the decree in favor of Mayes against the administrator of 
Garth, it was legally merged in said judghient ; and the iiling, 
therefore, of a transcript of the judgment against Garth's insol- 
vent estate, was clearly sufficient. The record shows that this 
was done within the time required by statute. — Thornton v. 
Moore, 61 Ala. 347. 

There does not seem to us to be any misjoinder of parties com- 
plainant to the present bill, as the chancellor has adjudged to 
exist in his opinion and decree. The two parties who unite as 
complainants are Shackelford, the administrator of Mayes, and 
Mrs. Martha Owen, who purchased these lands from Mayes in 
his life-time by a deed warranting the title. The legal effect 
of this conveyance was to pass to Mrs. Owen, as vendee, not 
only any interest which the vendor had at that time in the lands,, 
but also any title which he might afterwards acquire, whether 
by enforcement of his vendor's lien in the suit or otherwise. 
Chapman v. Abrahams, 61 Ala. 108. It is shown by the 
record that Mrs. Owen had been ejected from these lands by 
the heirs of Garth, in an action at law. This was a breach of 
the warranty, operating to create a liability upon Mayes and his 
administrator. The vendor, therefore, had jin interest in the 
enforcement of a lien, which was superior to the title of the 
heirs, and his estate might sustain injury if it remained unpaid. 
The liability over, created by the warranty, is held to be the 
vital principle which preserves from forfeiture a vendor's lien, 
where a note for the purchase-money of land has been assigned 
by indorsement by the holder, and tlirough wiiich is worked out 

VoK, LXXVI. 



1884.] OF ALAIUMA. 140 

[Caldwell v. King.] 
the equity of the assignee's subrogation to the original rights 
of tiie assignor. — Preston dh Co. v. Ellingto?i^ 74 Ala. 133. 
Tiie legal title of the deerce, or the note, as we may choose to 
consider it in reference to the heirs, is in Shackefford, as ad- 
ministrator, but the fruits of the vendor's lien enure to the 
benefit of his co-complainant, JVIrs. Owen. The practice, in such 
cases, is to allow a joinder of the trustee of the legal title and 
the beneficiary as co-complainants in the same suit, where there 
is no conflict between their interests. — Guntsr v. Williains, 40 
Ala. 561 ; Saioyer v. Baker, 72 Ala. 49 ; Pitts v. Powledge, 
56 Ala. 147 ; Blevins v. Buck, 26 Ala. 292. 

The decree is reversed, and the cause remanded, that a decree 
may be rendered in accordance with the principles announced 
in this opinion. 

CLoi-roN, J. not sitting, having been of counsel. 



Caldwell v. Kiii^. 

Creditor's Bill in JTquity, to set aside Conveyance as Fraud'w- 
lent, and for Discovery of Equitable Assets. 

1. Effect of decree on pleadings. — Though the court may suggest, or 
even direct an amendinent, it can not, ex inero motu, amend the plead- 
ings, or eliminate any part thereof; nor can a decree, rendered at any 
stage of the cause, operate to eliminate any part of the pleadings as they 
then stood. 

2. Filing hill in double aspect. — A Inll may be filed in a double aspect, 
or in the alternative ; but each aspect or alternative must entitle the 
complainant to the same relief, and the same defenses must be applicable 
to each ; and the same rule applies to an amended bill, or matter intro- 
duced by amendment. 

3. Same, in creditor's hill. — When the bill attacks the validity of a 
conveyance l)y the complainant's debtor on the ground of fraud, and 
seeks to reach and condemn the property to the satisfaction of the com- 
plainant's demand, he can not ask, in the alternative, to have the unpaid 
purchase-money, or the proceeds of sale, condemned to the satisfaction 
of his debt; and, on the other hand, if he seeks to condemn the money, 
or proceeds of sale, be thereby affirms the change of title effected by the 
sale, and can not impeach the validity of the transaction. In other 
words, he can not claim, in the alternative, under and against the con- 
veyance. 

4. Fraudulent conveyances; actual and constructive fraud. — A volvm- 
tary conveyance is fraudulent and void, as against existing creditors, 
without any inquiry into the motives or condition of the parties ; and if 

f)artly voluntary, or supported by an insufficient consideration, it is 
raudulent as to the excess of the value of the property above the con- 
sideration, though, unlike a conveyance fraudulent in fact, it will be per- 
mitted to stand as security for the consideration actually paid, if the 



150 SUPREME COURT [Dec. Term, 

[Caldwell v. King.] 

grantee did not participate in any fraudulent intent. But a conveyance 
which is founded on full and adecjuate consideration, the grantee not 
participating in any fraudulent intent, will not be held constructively 
fraudulent, because the stipulated purchase-money is unpaid, or to the 
extent that it is unpaid. 

Appeal from the Chancery Court of Mobile. 

Heard before the Hon. John A. Fostek. 

The original bill in this case was filed on the 15th December, 
1883, by Mrs. Mary Ann King and her husband, Henry W. 
King, as judgment creditors of Josephine Martin, against the 
said Josephine Martin and one Thomas Conboy ; and sought to 
set aside, on the ground of fraud, a conveyance of a house and 
lot in the city of Mobile executed by the said Josephine to her 
co-defendant, and a discovery from the said Josephine of 
equitable assets belonging to her. The complainant's judg- 
ment was rendered, after protracted litigation, on the 23d May, 
1883; the action having been commenced in December, 1877, 
and the case twice brought to this court by appeal. — 67 Ala. 
177 ; 72 Ala. 354. The deed to Conboy, a copy of which was 
made an exhibit to the bill, was dated the 30th N6vember, 1881, 
and recited as its consideration the present payment of $2,000. 
The bill alleged that the consideration of this deed was simu- 
lated and fictitious — that no money was in fact paid by said 
Conboy, or, if paid, that it was paid with knowledge on his 
part of the fraudulent intent of the said Josephine to put her 
property beyond the reach of legal process, and to defraud, 
hinder and delay the complainants, in the collection of their 
demand then in suit ; that the plan of a nominal sale was con- 
trived and arranged by Oliver Caldwell, acting as the friend 
and agent of the said Josephine, but who was not made a party 
to the bill ; and that Conboy, in becoming the purchaser, was 
fully informed of the plan and its purpose. The bill alleged, 
also, " that the said Josephine has money, property or effects, 
which are liable to the payment of complainants' said judg- 
ment debt, and is able to answer, under oath, what property 
she has, the nature thereof, in whose hands it is, and where 
situated." On these allegations, the bill prayed, that the court 
would " decree that said deed is null and void as against com- 
plainants' said judgment debt; and that the said Josephine 
Martin may be required and compelled to discover and set forth 
by answer what property, money or effects she owns, the nature 
thereof, in whose hands it is, and where situated ; and that the 
same may be decreed to be liable to the payment of complain- 
ants' said judgment debt ;" and the general prayer, for other 
and further relief, was added. 

A decree pro oonfesso was regularly entered against Josephine 
Martin, and no further proceedings were taken against her. 

Vol. lxxvi. 



1884.] OF ALABAMA. 151 

[Caldwell v. King.] 

An answer to the bill was filed by Conboy, denying the charges 
of fraud, fully and explicitly ; alleging ignorance on his part 
of any fraudulent intent on the part of said Josephine Martin, 
with whom he wjls not acquainted, and of the pending litiga- 
tion between her and the complainants; that he bought the 
property, together with another house and lot (which belonged 
to Almira Martin, against whom complainants had a similar 
suit pending), in good faith, from said Oliver Caldwell, who 
acted as the agent of said Josephine and Almira, at the price 
of S^4,050, of which $2,000 was the agreed price of the house 
and lot involved in this suit, and executed his note for that 
sum, payable to his own order, and indorsed by him, due Jan- 
uary Ist, 1882, and delivered said note, with the note for the 
other property, to said Caldwell, on his delivery of the deeds 
for the property ; that he paid $500 on this note, in January, 
1882, and gave a new note for the balance; and that he did 
not know to whom this note belonged, or who held or claimed it. 

The cause being submitted for decree on pleadings and proof, 
the chancellor held and decreed, "that the complainants are not 
entitled to any relief as to the allegation and charge of fraud 
in the conveyance of said property by said Josephine Martin 
to said Conboy, and, so far as any relief is prayed for in the 
bill based on the fraud or invalidity of said conveyance, the 
same is refused and denied. But it is further ordered and ad- 
judged, that the complainant is entitled to relief, in so far as 
the bill seeks to discover what property the said Josephine 
Martin has, out of which to make satisfaction of said debt; 
and it appearing that, although no answer has been tiled by 
said Josephine Martin, making discovery of said property, the 
answer of said Conboy, and the testimony of other witnesses, 
show that a note or notes for a large sum have been given by 
said Conboy to said Josephine Martin, which is still her prop- 
erty, and liable to the satisfaction of complainants' said debt, 
if still in her hands ; it is therefore ordered and decreed, that 
the register ascertain and report how much is due on complain- 
ants' said judgment, including principal and interest, and how 
much is due on said note or notes given by said Conboy ; that 
the said Josephine Martin shall forthwith surrender said note 
or notes to the register, if in her hands ; and if she shall not 
be able to surrender it, by reason of having assigned, trans- 
ferred, or otherwise disposed of the same, then the register 
will ascertain and report who is the present claimant and holder 
of said note, and when, how, from whom, and under what cir- 
cun)stances said claimant now holds the same." 

On the reference before the register, it does not appear that 
Josephine Martin was examined, or appeared ; but said Oliver 
Caldwell, being examined as a witness, claimed the note of 



152 SUPREME COUHT [Dec. Term, 

[Caldwell v. King. [ 

Conboy as his absolute property, under an assignment by said 
Josephine Martin in January, 1883, in payment of her note 
for money loaned by him; and the register so reported. The 
bill was then amended, by leave of the re'gister, by making 
Caldwell a party defendant ; alleging that he claimed to be the 
owner and holder of said note, but was not in fact a ho7\a fide 
holder for value in the due course of trade — that he acquired 
the possession in furtherance of the fraudulent scheme charged 
in the original bill, or held the same in secret trust for the said 
Josephine ; and praying that the note be surrendered to the 
register of the court, that Conboy be required to pay the money 
into court, and that the same be applied to the payment and 
satisfaction of complainants' said judgment. 

Caldwell appeared, and filed a demurrer to "the amendment 
to the original bill," on the ground that it was repugnant to, 
and inconsistent with the original bill. The chancellor over- 
ruled the demurrer, holding that, although the original bill was 
demurrable for multifariousness, in asking a discovery of assets 
as well as seeking to set aside the conveyance on the ground of 
fraud, the objection was waived by tiie failure to demur; that 
the bill, on the hearing on pleadings and proof ," was sub- 
stantially dismissed as a bill to vacate and set aside the convey- 
ance as fraudulent, and retained only as a statutory bill of 
discovery ;" that "one of its alternative aspects, that charging 
the deed to be fraudulent and void, has been eliminated by the 
decree of the court, as effectually as if the complainants had 
struck it out by amendment, leaving nothing in the bill except 
as a statutory bill for a discovery of assets." The decree over- 
ruling the demurrer is now assigned as error. 

K. H. Clarke, for appellants. — If the amendment had been 
incorporated in the original bill, there can be no doubt that its 
allegations and prayers for relief would have been inconsistent 
and repugnant with each other. — Cases cited in 1st Brick. 
Digest, 177, § 337. The amendment is not the commencn)ent 
of a new suit, but a continuation of the original suit ; and its 
averments and prayer for relief must be consistent with the 
original bill. — Winter v. Quarles, 43 Ala. 692 ; Cain v. Gimon^ 
36 Ala. 168 ; 1 Brick. Digest, 707, §§ 968-9. 

R. Inge S\nTH, contra. — The alleged inconsistency, or repug- 
nancy, if any, is not between the amended and the original bill, 
but in the original bill itself ; and it was waived, because not 
taken by demurrer, — Ray's Adiri^r v. WmnUe, 56 Ala. 36 ; 
Alabama Warehouse Co. v. Jones, 62 Ala, 550 ; Lockett v. 
Hurt, 57 Ala, 198. The decree rendered on the pleadings and 
proof, before Caldwell was brought in as a party, eliminated 
Vol. lxxvi. 



1884.] OF ALAIJAMA. 153 

[Caldwell v. King.] 

from the bill all but one aspect of the bill ; and this appeal does 
not relate to that decree. It is too late for Caldwell, a new 
defendant, to raise objections wliich M'ere waived by the origi- 
nal defendants, and which do not relate to the single issue pre- 
sented against him. The fraudulent intent of the grantor, as 
alleged in the original bill, is admitted by the decree j^o con- 
fesso ; and Caldwell's connection with it was established by his 
own testimony, on the reference before the register. Con boy 
is relieved of the charge of fraud, and is protected as a bona 
fide purchaser for value, to the extent of the purchase-money 
paid ; and the transaction being constructively fraudulent, as 
against the complainants, to the extent of the purchase-money 
unpaid, the court will prevent the consummation of the fraud, 
and appropriate this balance as prayed by the biil. — Lyne v. 
Wann^ 72 Ala. 43 ; Gordon, RankimSs Co. v. Tweedy, 7 1 Ala. 
202 ; Be?Ty v. Sowell, 72 Ala. 14 ; 58 Ala. 224 ; Kitchell v. 
Jackson, 71 Ala. 556. 

CLOPTON, J. — We can not concur with the chancellor, 
that the averments of the original bill, assailing the conveyance 
by Josephine Martin to Con boy for fraud in fact, were elimi- 
nated therefrom by the decree denying relief in this aspect of 
the bill, as elfectnally as if they had been struck out by amend- 
ment. A decree, of itself, can not operate to change or amend 
the pleadings. This must be done by the application of the 
party, and leave of the court. The court may suggest, or even 
direct, an amendment ; but, in such case, it remains with the 
party to amend or not, as he may elect. It is beyond the power 
of the court, exmeromotu, to amend the pleadings, or eliminate 
any part thereof ; nor can a decree on the merits have such 
effect. In all proceedings subsequent to the decree, the pleadings 
must be taken as they were at the time it was made. The 
character and effect of the amendment, made subsequently to the 
rendition of the decree, must, therefore, be considered, in re- 
spect to its consistency with the original bill, as if no decree 
had been rendered. 

That a complainant, as a general rule, may file his bill with 
a double aspect, or in the alternative, is too well settled to be 
controverted, or doubted. If he is in doubt, whether, upon the 
case stated in the bill, he is entitled to one kind of relief or 
another, he may frame the prayer in the alternative, so that 
the court may grant the relief to which he is entitled under 
either alternative. If his title to relief depends upon either 
the existence or the non-existence of a particular fact, or 
whether it is one way or another, of which he is ignorant, lie 
may make alternative statements, so as to obtain relief if either 
statement is confessed, or found to be true. 



154 SUPREME COURT [Dec Term, 

[Caldwell v. King.] 

The liraitatious upon the general rnle are as well defined as 
the rnle itself. Each alternative statement must entitle the 
complainant, not only to relief, but to precisely the same relief ; 
and the same defenses must be applicable. The alternative 
statements must not be inconsistent, or repugnant, and must 
present consistent titles to relief, so that, if a decree jpro con- 
fesso be taken, the court, looking at the alternative statements 
and the confession, will not be left in doubt, or to conjecture, 
as to the relief to be granted. — Moog v. Talcott^ 72 Ala. 210 ; 
Lehman v. Meyer, 67 AL^. 396 ; City of Eufaula v. McNah, 
67 Ala. 588 ; Pdves, Battle & Co. v. Walthall, 38 Ala. 329 ; 
Shields V. Barrow, 17 How. 130; Lloyd v. Brewster, 4 Paige, 
537. A statement of the rule and its limitations will suffice, 
without illustrating them by a reference to the various cases in 
which they have been sufficiently and repeatedly applied, and 
with which the profession is familiar. The rules themselves 
are not controverted. The contention is as to their applica- 
bility to this case. 

The complainants, having obtained a judgment against Jose- 
phine Martin, upon which execution was issued, and returned 
"' No property," filed their bill for two purposes, or in two as- 
pects — one attacking a conveyance of real property by her to 
Conboy, as having been executed on a pretended and simulated 
consideration in fraud of complainants' rights, and to have 
the property condemned to the satisfaction of their judgment ; 
and the other, to compel a discovery, under section 3882 of 
Code 1876, of money, property or effects belonging to her, 
which are liable to the complainants' demand. Josepheae Mar- 
tin not having answered, a decree fro confesso was taken, and 
no proceedings were instituted to compel her to answer. 

The chancellor, on hearing, decreed that complainants were 
not entitled to relief in the aspect of the bill charging the con- 
veyance to Conboy to be fraudulent, and denied any relief based 
on its fraud or invalidity ; but that they were entitled to 
relief in the other aspect. It appearing from the testimony 
that Conboy had given Josephine Martin a note for a part of 
the purchase-money of the property, which was outstanding, a 
reference by the register was ordered, to ascertain the amount 
due complainants on their judgment, the amount due on Con- 
boy's note, and who held the note. No reference was ordered 
to ascertain any other property belonging to Josephine Martin, 
or held in trust for her. 

On the reference, it was disclosed that the note of Conboy 
was held and claimed by Caldwell ; and thereupon the com- 
plainants amended the bill. The amendment states, that Con- 
boy gave a note for two thousand dollars, with interest from 
date, for the purchase-money of the property, upon which he 
Vol. lxxvi. 



1884.J OF ALABAMA. 155 

[Caldwell v. King.] 

had paid five hundred doHars, in January, 1882, or 188.3; and 
at tliat time, gave another note for the balance oiF the purchase- 
money, vvhicii was in the possession of Caldwell, who had given 
no consideration for it, and who took possession of, and holds 
tiie note, in furtherance of the scheme to defraud con)plainants, 
charged in the original bill, or holds it on some secret trust for 
Josephine Martin. The prayer of the amendment is, that Cald- 
well surrender the note to the register, and that the proceeds 
thereof l)e applied to the, payment of complainants' judgment. 

By the original bill, the complainants affirm the invalidity 
of the conveyance to Conboy, and on its invalidity base their 
title to relief. By the amendment, they aflirm the validity of 
the conveyance, and base their title to relief on its validity, 
and the fraudulent transfer of the note to Caldwell. " When 
a creditor pursues and seeks to condemn money, or a debt, 
which is the product of a fraudulent sale, he can only claim 
the money as a debt, and will not be permitted to dispute the 
rightful change of title to the property." — Price v. Masterson, 
35 Ala. 483; Godden v. Pierson, 42 Ala. 370. The converse 
proposition is equally true ; that when a creditor pursnes, and 
seeks to condemn the i^Toperty, on the ground of fraud in tiie 
sale, and, of consequence, no rightful change of title, he will 
not be permitted to affirm there is a rightful change of title, 
and condemn the product of the sale. Inconsistent and repug- 
nant titles to relief are presented by the original bill and the 
amendment, founded on inconsistent and repugnant state- 
ments, "The effect, in the one case, is to claim a^a«w*^ the 
conveyance, and in the other, to claim under it." 

The complainants, under the alternative claims of the bill as 
amended, are not entitled to precisely the same relief. In 
Moog V. 2alcott, supra, it is said : " There is one sense, in 
which the relief prayed for, in every possible aspect of the 
bill, is remotely the same — tJie collection of the coinplainanf s 
demand out of the defendants property. But the rule under 
consideration contemplates the immediate relief, which is the 
foundation and source of this remote relief." The imn)ediate 
relief, in respect to the property conveyed to Conboy, to which 
the complainants are entitled on the statements of the original 
bill, is, that the property be sold for the payment of their 
judgment, and the removal of the conveyance as an oV)8truction 
or impediment to the sale. By such relief, Conboy forfeits all 
right to the property, and is divested of all ownership, or 
claim. On the statements of the amendment, the immediate 
relief is the condemnation of a portion of the product of the 
sale to Conboy, as a debt, to the payment of their judgment. 
The result of such relief is, to leave the title of Conboy un- 
impaired, and to permit him to remain in full ownership and 



156 SUPREME COURT [Dec. Term, 

[Caldwell v. King.] 

undisturbed enjoyment of the property ; he being required to 
pay only the agreed purchase-money, and perform his contract 
of purchase. IS^ot only are the titles to relief, but also the re- 
sults, inconsistent and repugnant. 

Had there been no intervening decree, and a decree ^o con- 
fesso been taken on the bill as amended, by what rule, or on 
what principle, would the court determine what relief ought to 
be granted? Would the court, in such case, set aside the con- 
veyance to Conboy, as fraudulent and invalid, and order the 
property sold ; or would it condemn Conboy's note for the un- 
paid purchase-money to the complainants' judgment? The 
case would be placed in sucli condition as to make it a " mere 
matter of speculation and conjecture as to which of the titles 
should be made the foundation for relief?" If the court 
adopted either, it could not be certain that it was granting the 
relief to which the complainants M'ere entitled. 

It is contended, however, that to the extent of the unpaid 
purchase-money, the conveyance to Conboy is constructively 
fraudulent; that he is a voluntary grantee jf>ro tanto ', and that 
the amendment, maintaining in a varied mode the impeach- 
ment of the conveyance for fraud, is consistent with this aspect 
of the original bill. We can not assent to this proposition. 
The amendment does not, in any possible aspect, impeach the 
conveyance for any fraudulent intent on the part of the grantee, 
or for his participation in any guilty intent of the grantor. As 
against existing creditors, the law, in this State, declares a con- 
veyance wholly voluntary to be fraudulent, without inquiring 
into the motives or condition of the parties ; and fraudulent 
to the extent it is voluntary, when an inadequate consideration 
has been paid, and there is an absence of participation in any 
guilty intent of the grantor, on the part of the grantee. When 
a conveyance is constructively fraudulent, by reason of inade- 
quacy of consideration, and the financial embarrassment of the 
grantor, the grantee not participating in any fraudulent intent, 
it may be permitted to stand as security for the consideration 
actually paid ; but, when the deed is fraudulent in fact, it will 
not be allowed to stand for the purpose of reimbursing the 
grantee. — Gordon^ Rankin i& Co. v. Tweedy, 71 Ala. 202; 
Potter V. Grade, 58 Ala. 303. A conveyance on sufficient 
consideration can not be avoided by creditors because of the 
fraudulent intent of the grantor, in which the grantee did not 
participate; and when a full and adequate consideration has 
been agreed to be paid, the conveyance will not be held con- 
structively fraudulent, because and to the extent the considera- 
tion is unpaid, the grantee not participating in any fraudulent 
intent. 

We do not mean to be understood as holding that a creditor 

Vol. lxxvi. 



1884.J OF ALABAMA. 157 

[Harrison v. Parmer. 1 

can not fill a bill with a double aspect — in one aspect, attacking 
a deed made by his debtor for the fraud in fact of both parties 
to the transaction ; and in the other, attacking it as voluntary, 
in whole or in part. The relief, in such cases, is the tsanie, al- 
though there may be a difference in extent. What we do de- 
cide is, that a creditor can not file a bill in the alternative — by 
one alternative statement, charge actual fraud by both grantor 
and grantee, and, for this reason, seek to have a conveyance of 
his debtor declared invalid, and to have the property sold for 
the satisfaction of his demands; and by the other, admit the 
adequacy of the consideration, and, without alleging the par- 
ticipation of the grantee in the fraudulent intent of the grantor, 
seek to condemn the unpaid purchase-money ; and that this 
can not be done by an amendment to the original bill. 

It is further insisted, that the amendment is consistent with 
the aspect of the original bill, wherein it is filed for a discovery 
of money, property or effects, as provided and authorized by 
section 3882 of Code. It will not be seriously contended, thai, 
in this aspect of the bill, there was an attempt or expectation 
to condemn a note, the product of a sale, which, by the other 
alternative statement of the bill, had been attacked as fraudu- 
lent in fact. The allegations of fraud in the sale and convey- 
ance of the property to Conboy, and the effort to condemn the 
property to the complainants' debt, repel the proposition, that 
his outstanding note for the purchase-money was, as against 
them, property belonging to Josephine Martin. It is a suffi- 
cient answer to this proposition, however, that the amendment 
is inconsistent with, and repugnant to one of the alternative 
aspects of the original bill, as it remained at the time the 
amendment was made. 

The demurrer should have been sustained. 

Reversed and remanded. 



Harrison v* Parmer. 

Statutory Action, in nature of Ejectment. 

1. Legal titleK only available. — In a statutorj^ action in the nature of 
ejfectinent, the legal title must prevail against an eijuitable title, no mat- 
ter how perfect the equity may be. 

2. As between lessor and lessee, whose title will prevail. — If the de- 
fendant entered under an executory agreement for a lease, he has no 
legal title which will defeat the plaintifF's recovery, though he may main- 
tain an action at law for damages, or a bill in etiuity for specific perform- 



158 SUPREME COUPwT [Dec. Term, 

[Harrison v. Parmer. ] 

ance; but, if he entered under an executed lease, and the term has not 
expired, he may successfully defend the plaintiff's action. 

3. Whether contract is lease, or executory agreement for lease. — A 
writing having been drawn up and signed by both parties at their lirst 
interview, duly attested, describing the premises to be let, the com- 
mencement and duration of the term, and the annual rent to be paid, 
this is sufficient to satisfy the requisitions of the statute of frauds (Code, 
§§ 2121, 2145), and to make a binding contract; but the addition of these 
words, "Notes and papers to be drawn up as soon as convenient," 
shows that the parties considered the transaction as incomplete, and the 
writing is only an executory agreement for a lease. 

4. Same. — A writing having been drawn up at the second interview 
between the yjarties, which specified particularly the duties and obliga- 
tions of the lessee, was signed by him, and delivered, with his notes 
for the rent as specified, to the lessor, who thereupon surrendered to him 
the original writing ; this, without more, would amount to an executed 
lease, and the lessor would be held to have waived any stipulations not 
contained in the writing. But, it being further shown that the parties 
separated with the understanding that they were to meet a third time, 
when a duplicate of the writing signed by the lessee was to be prepared 
and signed by tlie lessor, and the first writing was to be then surrendered 
by the lessee, and that this was not done at the third meeting ; these 
facts show that the parties considered the transaction as still incomplete, 
and the writings operate only as an executory agreement for a lease. 

5. Error ivithout injurij in rulings on evidence. — Where the uncontro- 
verted facts clearly establish the plaintiff's right to recover, erroneous 
rulings on evidence adverse to the defendant, which would not vary the 
result, are error without injury. 

Appeal from the Circuit Court of Montgomery. 

Tried before the Hon. Jno. P. Hubbard. 

This action was brought by John T. Parmer against William 
M. Harrison, to recover the possession of a plantation, which 
was described in the complaint as the "Old Calloway place;" 
and was commenced on the 2Sth January, 1884. Tlie de- 
fendant pleaded "not guilty, in short by consent;" and the 
cause was tried on issue joined on that plea. 

On the trial, as appears from the bill of exceptions, it was 
shown that the defendant claimed and held possession of the 
lands sued for, under a contract made between him and the 
plaintiff, which the defendant insisted was a lease for five 
years, while the plaintiff contended that it was only an execu- 
tory agreement for a lease, which had never been consummated. 
At the first interview between the parties, on the 9th August, 
1883, a writing was drawn up for them by E. R. King, which 
was, as King testified, in these words: "Agreement between 
Mr. John T. Parmer and William M. Harrison, colored. The 
said Parmer agrees to rent or lease his Calloway placfe (that 
portion purchased by him of Dan. Flinn) to Wm, M. Harrison, 
for five years, at $300 per year, payable annually, from Jan- 
uary Ist, 1884 ; notes and papers to be drawn up as soon 
as convenient;" and this was signed by both of them, Har- 
rison only making his mark, and attested by said E. R. King. 

Vol. Lxxvr. 



1884.] OF ALABAMA. 159 

[Harrison v. Parmer.] 

At tlie second interview between them, in September, or Octo- 
ber, 1883, said King wrote five notes for the annual rent 
as agreed, which were signed by said Harrison, by mark only, 
and delivered to said Parmer; and he drew up another instru- 
ment of writing, in these words: "Agreement between John 
T. Parmer and W. M. Harrison, colored. The said John T. 
Parmer agrees to lease his place known as the ' Old Calloway 
place' (the portion of said place I purchased of Daniel Flinn), 
for live years from the 1st day of January, 1884, at $300 a 
year; the rent to be paid annually ; the first note due October 
15th, 1884," ifcc, describing the others. "The said W. M. 
Harrison agrees to take good care of tlie place, and, at the 
expiration of live years, to turn the place back to said Parmer, 
in the same condition it was when he took possession. In case 
the said W. M. Harrison fails to pay his rent annually, the 
lease expires. In witness whereof, I have hereunto set my 
hand and seal, this August 9th^ 1883^ This writing was signed 
by said Harrison, by mark only, and was attested by said King ; 
and annexed to it were two memoranda, or stipulations, to the 
effect that Harrison was to have the control of the gin, that the 
other " renters " were to be allowed to gin their cotton free, 
and that one room in the house was reserved by Parmer for 
iiis own use; but these memoranda were signed only by said 
King, and not by the parties. This writing, and Harrison's 
five notes for the rent, were delivered to Parmer, and the orig- 
inal writing, signed by both parties, was then delivered to said 
Harrison ; and the parties then separated, as King testified, 
with the understanding that they were to meet again, " for the 
purpose of drawing up a duplicate of said paper signed by 
Harrison, to be given to him, and the original writing was to 
be kept by him until the duplicate could be drawn up for him." 
A third meeting was held between the parties, on the night 
of December 3l8t, when, as King testified, "plaintiff told de- 
fendant that he must give up said original paper, signed by 
both parties, before he would give defendant a lease ;" that de- 
fendant thereupon sent for the paper, and delivered it up to 
plaintiff; and King having then furnished a duplicate of the 
writing signed by defendant alone, it was delivered to the de- 
fendant, and the interview terminated. The original writing, 
signed by both parties, was afterwards destroyed by plaintiff ; 
and its contents, as above copied, were stated by King from 
memory. In October, or November, after the second inter- 
view, the defendant entered into possession under the contract, 
and continued in possession up to the bringing of the suit. 
On the 1st January, 1884, or a few days afterwards, plaintiff 
made a written demand of possession, claiming that there was 
no valid lease, and offered to surrender the defendant's notes ; 



160 SUPKEME COURT [Dec. Term, 

[Harrison v. Parmer.] 

and his demand not being complied with, he brought this suit. 

Plaintiff, testifying as a witness for himself, stated that there 
were several stipulations, or reservations on his part, which 
were not expressed in the second writing drawn up by King, 
to which defendant's name was signed ; tliat he objected to 
said writing, on that account, at said second interview, and that 
King said he did not then have time to change it, but it would 
be all right. This evidence was admitted by the court, against 
the defendant's objections, and he duly excepted. King, testi- 
fying as a witness for defendant, stated that, according to his 
recollection, nothing was said about any stipulations omitted 
from the writing, until at the third interview between the 
parties ; and that the second writing was dated August 9th, 
the date of the original agreement signed by both parties, " be- 
cause they were one transaction." On all the evidence, the 
substance of which is above stated, the court charged the jury, 
at the request of the plaintiff, that they must find for him, if 
they believed the evidence ; to which charge the defendant 
excepted. 

The charge of the court, and its rulings on the evidence, are 
now assigned as error. 

Shaver & Hutchkson, for appellant. — (1.) The original 
writing, which was signed by botii parties, and the second 
writing, signed only by Harrison, are to be construed as parts 
of one transaction, and, according to the testimony of King, 
were so understood by the parties ; and being thus construed, 
they take the case out of the statute of frauds. — Thayer v. 
Luce i& Fuller, 22 Ohio St. 74. It was unnecessary that plaintiff 
should sign the second writing, which contained no stipulations 
on his part ; and the execution of that writing by the defend- 
ant, with the delivery and acceptance of his notes for the rent, 
fullfilled the intention of the parties, as expressed in the first 
writing, " notes and papers to be drawn up as soon as con- 
venient." If, on the face of the papers, the intention of the 
parties was doubtful, their subsequent conduct, in giving 
and taking possession, shows that they considered the contract 
executed. — Chitty on Contracts, 313, 6th Amer. ed.; Danforth 
V. Laney, 28 Ala. 274. (2.) But the first writing, signed by 
both parties, was in itself a lease, operating a present demise. 
Chitty on Contracts, 314-15 ; Taylor's Landlord & Tenant, 
41-43, 6th ed.; Pearson v. Rice, 8 Bing. 182; Poole v. Bent- 
lei/, 12 East, 168. (3.) The destruction of this paper by 
plaintiff, after he had obtained possession of it under the cir- 
cumstances shown by the testimony, did not annul the contract, 
nor affect the defendant's rights under it. (4.) The rulings of 
the court on the evidence were erroneous. — Taylor's L. & T., 44. 

Vol. lxxvi. 



1884.] OF ALABAMA. 161 

[Harrison v. Parmer.] 

Troy & Tompkins, contra^ cited Jackson v. Myers^ 3 John. 
388 ; Taylor's Landlord & Tenant, §§ 37-42. 

STONE, C. J. — This is a statutory real action, brought by 
the appellee, Parmer. In such action, only legal titles can be 
looked to. No matter how complete an equity may be shown, 
it will neither maintain the action, nor defeat it, against a 
claimant under a legal title. Only a court of chancery can 
recognize and enforce equitable claims to lands. — Yon v Flinn^ 
34 Ala. 409 ; Tuhoil^r v. Munford, 73 Ala. 308 ; Slaughter 
V. McBride, 69 Ala. 510. 

The defendant derived all the claim he asserts from ^he 
plaintiff. He went into possession under an alleged contract 
of letting, which he claims secures to him a lease-hold term of 
five years duration, commencing on January 1st, 1884. The 
writings and all the testimony show this to have been the rela- 
tion of the parties. This is conclusive of plaintiff's right to 
recover, unless defendant can show a paramount legal title 
which dominates it. — Bishop v. Salouette, 67 Ala. 197 ; Hous- 
ton v. Farris, 71 Ala. 570; Otis v. McMillan, 70 Ala. 46. 

The inquiry in this case is, whether there was a lease, or only 
an executory agreement for a lease. If the former, then plaintiff 
has no right to recover in this action. If the latter, then de- 
fendant can not defend this suit, but will be left to his action 
for damages, or to a bill for specific performance, if he com- 
plies with the terms of the contract on his part. Parmer can 
not invoke the statute of frauds, as a defense to any attempt to 
charge him, no matter whether the writing be treated as an 
executed lease, or merely as an executory agreement. He ad- 
mits the paper was signed by him, and it has one attesting wit- 
ness. -Code of 1876, § 2145 ; Ilejflin v. Milton, 69 Ala. 354 ; 
Phillij)s V. Adams, 70 Ala. 373 ; Cooper v. Tlomshy, 71 Ala. 
62 ; Browne Stat. Frauds, § 397. 

The parties to this suit had three interviews in reference to 
the alleged lease. At the first two of those interviews, the 
witness King was alone present. At the first meeting, in Au- 
gust, 1883, an agreement was drawn up, signed by both parties, 
and witnessed by King. This agreement described the premises 
to be let, the commencement and duration of the leasehold 
term, and the annual rent to be paid. It was not an executed 
lease at that time, for it contains the clause, " Notes and papers 
to be drawn up as soon as convenient." This paper was left 
with Parmer until the second interview, and during that time 
the contracting parties took no action under the agreement. 
The second interview was late in September, or early in Octo- 
ber. At that time a paper was drawn up, specifying particu- 
larly the duties and obligations to be incurred by Harrison, the 



162 SUPREME COURT [Dec. Term, 

[Harrison v. Parmer. ] 

proposed tenant. This paper was sij^jned by Harrison only, 
witnessed by King, and both it and Harrison's notes for rent 
were delivered to, and received by Parmer, Parmer then sur- 
rendered the agreement first entered into, and it was handed to 
Harrison, who retained it until December 31st — the time of the 
third interview. The testimony of King is, that after Harri- 
son executed the notes and the paper at the second interview, 
"the plaintiff [Parmer] took the said five notes, and also the 
said instrument then drawn up and signed by Harrison alone, 
and plaintiif gave up the original paper signed by both plaintiff 
and defendant, and said original paper was given to defendant ; 
that he. King, did not have time, at that meeting, to draw up 
for Harrison a duplicate of the paper drawn up and handed to 
Parmer ; and that the original paper, executed August 9th, was 
handed to Harrison, to be kept until the duplicate could be 
drawn up for him ; and it was understood they (the witness, 
plaintiff and defendant) were to meet again, for the purpose of 
drawing up a duplicate of said paper, to be given to Harrison." 
Plaintiff testified as a witness, that he received said notes and 
said paper signed by Harrison ; that he then gave up the origi- 
nal contract signed by him and Harrison, and that Harrison 
took the same. He testified that, when he did this, he insisted 
that certain named stipulations and reservations should be put 
in the contract, which were not put in ; but, in this, he was 
contradicted by King and by Harrison. He, Parmer, offered 
no explanation of his conduct, in receiving and carrying off the 
notes and contract signed by Harrison alone. True, the notes 
were signed by defendant's mark, and have no witness. The 
agreement, however, accurately describes the notes, and that 
was both signed by Harrison, and witnessed. 

If this transaction had closed with the acts done at the second 
meeting, there can be no question it would have been an exe- 
cuted lease, — not a mere agreement to give a lease. The instru- 
ment signed by both parties, and then delivered to defendant, 
was so executed by Parmer, the party sought to be charged in 
this suit, as to be binding on him under the statute of frauds. 
Code, § 2145 ; Pro. Stat. Frauds, § 397. That instrument de- 
scribed the premises and the parties, and specified the rent re- 
served, and the commencement and duration of the lease. The 
second paper, and the notes executed by Harrison at the second 
interview, would fill the requirement in the original agreement, 
"Notes and papers to be drawn up as soon as convenient." 
The original agreement being delivered to Harrison, in the 
presence of Parmer, and without his dissent, these writings evi- 
denced every element of an executed contract of lease. If, as 
Parmer contends, certain stipulations and reservations were 
omitted from the writing, he must be held to have waived 
Vol. lxxvi. 



1884. J OF ALABAMA. 163 

[Wilkinson v. Williamson. 1 

them, when he accepted Harrison's notes and obligation, which 
made no mention of them. Such is the fate of all oral nego- 
tiations, not carried into the written contract afterwards exe- 
cuted and accepted. — Pettus v. McKinney, 74 Ala. 108. 

What occurred, however, at the second interview, shows that 
the parties did not then consider the transaction closed. They 
were to have a third meeting. The expressed purpose of that 
third meeting was, that a duplicate, or counterpart of the paper 
executed by Harrison alone, was to be prepared and given to 
him ; and when so prepared and delivered, Harrison was to 
surrender the original joint agreement. Now, this agreed 
duplicate, or counterpart — the original agreement being sur- 
rendered up — would be incomplete and worthless, without the 
attested signature of Parmer, the plaintiff. Neither the parties, 
nor King, the draughtsman, considered the writings complete ; 
and hence we must hold there was not a compliance with the 
stipulation in the original agreement, that the notes and papers 
were to he drawn up as soon as convenient. We feel con- 
strained to hold there was only an agreement for a lease, which 
can only become a legal holding, by a lease executed, or a bill 
for a specific performance. — Taylor, Landlord t% Tenant, § 40 ; 
Doe V. Ashburner, 5 T. R. 163 ; Goodtitle v. Way, 1 T. R. 
735 ; Boe v. Clare, 2 T. R. 739 ; Doe v. Smith, 6 East, 530 ; 
Weld V. Traip, 14 Gray, 330. 

Some testimony given by plaintiff, of conversations pre- 
ceding the first writing, may have been illegal. It could not, 
however, vary the result of the trial. Under no circumstances, 
according to the rules above declared, can the defendant resist 
a recovery in this suit. 

Affirmed. 



Wilkinson v. \^illiamson. 

Action on Common Counts, for Price of Timber sold. 

1. Evidence of custom, or usage ; v^hen admissible. — Under an express 
contract for the sale of timber, all the terms being agreed on at the time, 
and a controversy afterwards arising as to the price agreed on, evidence 
of custom or usage can not be received to determine it. 

2. Contract of sale ; agreement as to price. — On a sale of personal 
property, the contract may be complete, without specifying the price to 
be paid ; as where it is not stated, or is left open for future adjustment 
by consent, the property being delivered with the intention to complete 
the Bale. But, where the price is not left open by consent, and is not 
fixed by the concurring assent of the parties — the vendor intending to 



164 SUPREME COURT [Bee. Term, 

[Wilkinson v. Williamson.] 

sell at one price, and the purchaser intending to buy at a different 
price — though the property is delivered, there is no complete contract; 
and either party may rescind, on discovering the mutual mistake, by 
offering to return the money, or the proj^erty, as the case may be. 

3. Same; liability of purchaser, on loss or destruction of property. 
If the property is delivered to the purchaser under such incomplete con- 
tract, and is afterwards lost, consumed, or otherwise placed beyond his 
control, by his own fault, so that, on a rescission of the contract, the 
parties could not be placed in statu quo, the purchaser would, it seems, 
be liable for a reasonable price, as upon a quantum valebat. 

4. Credibility of witness, as affected by illiteracy or learning. — The 
illiteracy of one witness, or the learning of another, does not affect the 
credibility of either, " at least where the facts testified to are equally 
within the comprehension of the two classes of persons." 

5. Retention of money by vendor. — Under such incomplete contract, 
the seller's retention of money paid by the purchaser, being equally con- 
sistent with each version of the contract, can not be considered a ratifi- 
cation of the contract at the price insisted on by the purchaser. 

Appeal from the Circuit Court of Butler. 

Tried before the Hon. Jno. P. Hubbard. 

This action was brought by Jatnes Williamson, against W". 
W, Wilkinson, to recover the sum of $141.32, which the 
plaintiff claimed as the balance due him for the price of 
timber sold and delivered by him to the defendant, on or about 
February 15th, 1882. The complaint contained only the com- 
mon counts ; the defendant pleaded, " in short by consent, the 
general issue and payment ;" and the cause was tried on issue 
joined on these pleas. On the trial, as the bill of exceptions 
shows, the plaintiff testified in his own behalf, " that he made 
a contract with defendant to get out timber for him, of certain 
class and average, at the price of eight cents per cubic foot, 
upon a basis of 100 feet average ;" that he got out eighty pieces 
of timber under this contract, but allowed it to remain " in the 
woods and water" until it was damaged ; that he had it carried 
down to Pensacola, where it was to be delivered, and where, 
after inspection by the proper officer, he offered it to defend- 
ant's agents ; that they declined to receive it under the con- 
tract, being classed by the inspector as " sap-damaged," but 
offered him six cents per foot for it ; that he accepted this 
price, after trying the market, and said agents then made out 
" a specification of the timber and a calculation, for him to 
come to Greenville and get the money." The material ques- 
tion in the case was as to the agreed price to be paid for the 
timber ; the plaintiff insisting that it " was six cents per foot, 
and not on a basis of six cents per foot ;" while the defendant 
insisted, and said agents testined as witnesses for him, " that 
the agreed price was on a basis of six cents per foot." The 
bill 01 exceptions states, that it was shown by the testimony of 
men engaged in the timber business, " that, according to the 
rules and customs of the men engaged in tlie business, when a 

Vol. lxxvi. 



1884.] OF ALABAMA. 165 

[Wilkinson v. Williamson.] 

contract was made for the sale of such timber at so much ' per 
foot on a basis,' the term meant ' on a basis of one hundred 
feet average,' while so much ' per foot ' meant without an 
average ; so that ' six cents per foot on a basis ' meant ' on a 
basis of one hundred feet average,' and 'six cents per foot ' 
meant ' without reference to any average ; ' and the difference 
between the two prices, as thus expressed and calculated, was 
the sum in controversy." 

A witness for the plaintiff, who had been engaged in the 
timber business at Pensacola for ten or fifteen years, and who 
saw the plaintiff's said timber, testified, " that it was the custom 
to sell sap-damaged timber, of the character of the timber in- 
volved in this suit, at so much per cubic foot, without reference 
to a basis ;" and to the admission of this evidence the defend- 
ant objected and excepted. The plaintiff was an illiterate man, 
and could neither read nor write ; and he testified that, on that 
account, "he trusted defendant's said agents to make the cal- 
culation, and accepted payment according to that calculation, 
under the belief that it was at six cents per foot." A witness 
for the plaintiff, who was present at the interview between 
him and the defendant's agents, but who could neither read 
nor write, testified to the plaintiff's version of the contract ; 
while t\}e defendant's agents, by whom the contract and the 
calculation were made, testified that the price offered and 
accepted was " six cents a foot on a basis, or average of one 
hundred feet ;" and the defendant's agent in Greenville, by 
whom the money was paid on settlement of the account, testi- 
fied that, when plaintiff insisted that he had not been paid the 
full amount due him, " witness proposed to him, if he would 
give back all the papers, and pay back all the money he had 
received, witness would let him have back the timber ; and 
plaintiff said, that he would not do it." ' 

"The court thereupon charged the jury, among other things, 
that if they found, from the evidence, that a contract of sale 
for the timber was made, and that, as to the price, the expres- 
sion ' at six cents per foot ' was used in fixing the price, and 
thus agreed on as the price, then the amount of plaintiff's re- 
covery, if entitled to recover, so far as said contract is concerned, 
is the sum resulting from making the calculation at six cents 
per foot, without reference to any average ; and this is the case, 
although the defendant may have intended or thought that said 
expression meant six cents per foot on a basis, a^d did not 
design to give more than that ; and from said sum should be 
deducted all payments made ;" also, " that if there was no 
stipulation as to price, if there was a contract of sale, and the 
timber was received by the defendant under the contract and 
ffiade (?) by defendant, then plaintiff would be entitled to the 



166 SUPREME COURT [Dec. Term, 

[Wilkinson v. Williamson.] 

reasonable market value of the property at that time, so far ae, 
the price is concerned." To these portions of the general 
charge of the court exceptions were reserved by the defendant. 
" One of the defendant's counsel, in his argument to the 
jury, commented strongly on the fact that two of plaintiff's 
witnesses could not read nor write. The court further in- 
structed the jury, in its general charge, that the fact a witness 
can not read or write does not render him incompetent to tes- 
tify, and is no circumstance against his honesty ; and as to 
such witness, the jury should look carefully through his testi- 
mony, just as they would that of any other witness, and give 
such weight to him as they believe him entitled to. ' /So, as 
to this witness, loho can not read or write : you should give his 
testimony tlie same weight, neither more nor less than you would 
give to tlie testimony of any other ivitness, after you have fully 
considered it and all the evidence ' you should treat him as you 
would any other witness.'' To this part of the charge" (the 
words italicized) the defendant duly excepted. 

The defendant asked the following charges, which were in 
writing, and each of which was refused by the court : (1.) " If 
the jury believe, from the evidence in the case, that there was 
a sale of the timber by plaintiff to said Vinson, as defendant's 
agent ; and that there was a dispute, after the sale, ,as to the 
price agreed to be paid ; and that the defendant [plaintiff], 
after being fully advised as to this dispute about the price, 
received and retained the price on a basis of six cents, and 
refused and declined to surrender the money received, after 
proposition made to cancel the trade, on a full knowledge of 
all the facts ; then the jury may conclude that he ratified the 
trade on a basis of six cents, and, should they thus find from 
all the evidence, then the plaintiff can not recover." (2.) " The 
plaintiff can not hold on to the fruits or proceeds of the sale of 
timber on a basis of six cents, and at the same time repudiate 
the sale ; and if the jury believe, from the evidence, that the 
plaintiff retained and held on to the proceeds of the sale on a 
basis of six cents, after full knowledge that this was the price 
the defendant understood he was to pay, after defendant had 
proposed to turn back the timber to him, and plaintiff to return 
the money and papers he had received, and plaintiff refused, 
then plaintiff could not recover." (3.) " If the jury find that 
the timber was delivered under wiiat the parties supposed to be 
an open cpntract, but further find that the plaintiff understood 
and consented to one proposition, and Vinson (defendant's 
agent) assented to another and different proposition ; then such 
supposed contract would not be a valid contract in law, and 
there can not be a sale unless there was a contract between the 
Vol. Lixvx. 



1884.] OF ALABAMA. 16T 

[Wilkinson v. Williamson.] 

parties." The defendant duly reserved exceptions to the refusal 
of each of these charges. 

The admission of the evidence objected to, the charges given, 
and the refusal of the several charges asked, are now assigned 
as error. 

J. C. Richardson, for apj>ellant. 

BuELL & Lane, contra. (No briefs on file.) 

SOMERVILLE, J.— Tlie contract for the sale of the timber 
in controversy in this case is shown to have been express, the 
terms being fully stated between the contracting parties at the 
time of the transaction. The controversy is as to which one 
of the two alleged prices, differing from each other in amount, 
was agreed upon by stipulation. Under this state of facts, it 
was not competent to determine the matter by evidence of cus- 
tom, or usage. " The true office of mercantile usage," as said 
by Mr. Parsons, " is to interpret the otherwise indeterminate in- 
tentions of parties, and to ascertain the nature and extent of 
their contracts, arising not from express stipulation, but from 
mere implications and presumptions, and acts of a doubtful or 
equivocal character ; or to ascertain the true meaning of par- 
ticular words in an instrument, when these words have various 
senses." — 1 Parsons on Contr. (6th Ed.) 547*. Evidence of 
usage and custom is not permitted, in other words, " to prevail 
over and nullify the express provisions and stipulations of the 
contract." — 1 Add. Cont. § 244. " It may be," as said in a late 
case, " that the very object of the contract was to avoid the 
effect of such usage, and no evidence of usage can be admitted 
to contradict the [express] terms of a contract, or control its 
legal interpretation and effect." — Brown v. jFoster, 113 Mass. 
136 ; Lawson on Usages & Oust. p. 371, § 187 ; p. 417. The 
evidence admitted by the court shDuld have been excluded, on 
the objection taken by the appellant, and this error must oper- 
ate to reverse the judgment. 

It is a familiar rule of law, that there can be no contract 
without a concurrence of the minds of the contracting parties, 
by which their mutual assent is given to some particular thing. 
This assent must be entire and adequate, comprehending uncon- 
ditionally the whole, and not merely the part of the proposi- 
tion suggested as the basis of the contract. — 1 Parsons Cont. 
476-7*; 1 Whart. Cont. § 4. This principle is, of course, just 
as applicable to sales of personal property, as to contracts of any 
other nature. Unless all the terms of the proposed contract of 
sale, including the m'ice when specified, are agreed to, the con- 
tract can not be said to be complete. It is true, that a contract 



168 SUPREME COURT [Dec. Term, 

[Wilkinson v- Williamson.] 

of sale may be complete and execnted, without specifying the 
price of the article sold. This is the case where the price is either 
not stated, oris left open for future adjustment by consent, the 
property being delivered with the intention to complete the sale. 
If there is a failure to agree, a fair and reasonable price maybe 
recovered on a quantum valebat^ by verdict of a jury. — Shealy v. 
Edwards, 73 Ala. 175 ; 1 Benj. Sales, § 85. But, where the in- 
tention of the vendor is to sell at a specified price, and the in- 
tention of the vendee is to buy at another and different price, 
which was specified by him at the time of delivery, and the 
minds of the contracting parties, through mutual misunder- 
standing, have failed to agree upon the same proposition as to 
price, there can manifestly be no legal contract of sale, because 
each has assented to a separate and distinct contract, and not to 
one and the same. It follows that, in cases of this character, 
either party may rescind, upon the discovery of the mistake, 
by offering to return the price on the one hand, or the property 
on the other, within a reasonable time. 

Where the thing delivered to the vendee, upon the supposi- 
tion of a sale, has been lost, consumed, or otherwise placed be- 
yond his control by his own fault, so that the parties can not 
be put in stat^i quo, it would seem that the vendee would be 
liable for a reasonable price. This would be upon an implied, 
and not upon an express contract, however, as upon a quantum 
valebat.—l Benj. Sales (Corbin's Ed. 1884), § 85, note 1 ; 
WittJcousky v. Wasson, 71 N. C. 451. 

An application of these principles makes it clear, that 
the first and second parts of the charge of the court, to which 
exceptions was taken, are misleading, and should not have been 
given, in the exact form in which they appear. 

Tliere was no error in the charge of the court, as to the influ- 
ence which the illiteracy of a witness should exert upon his 
credibility. The fact that a witness can not read or write cer- 
tainly does not detract from or impugn his honesty. The fact 
that he is learned in letters does not, of itself, add anything to 
the probability of his veracity. Such, at least, is the rule where 
the facts testified to are equally within the comprehension of 
the two classes of witnesses. 

The mere retention by the plaintiff, of the price paid him for 
the timber, can not be construed into a ratification of any other 
contract than such as was actually made, or may be implied by 
law in the absence of an express agreement. The act of reten- 
tion is perfectly consistent with the defendant's theory of the 
contract of sale, as well as with the plaintiff's. If there was no 
sale, because of a failure to agree upon any price, then no title to 
the timber vested in the vendee ; and upon his offer to rescind, 

Vol. lxxvi. 



1884.] OF ALABAMA. 169 

[Callen v. Rottenberry.] 

the plaintiff would be liable to him for the money received on 
an implied assmripsit. 

The first two charges requested by the defendant were prop- 
erly refused. The third should liave been given, under the rule 
which we have announced above. 

Reversed and remanded. 



Callen v. Rottenberry. 

Statutory Action in nature of Ejectment. 

1. Judgment and execution against married woman; liability of statutory 
estate to sale under. — Property belonging to the statutory estate of a mar- 
ried woman is not subject to levj' and sale under execution on a judg- 
ment at law, rendered against her during coverture, and founded on a 
personal contract which she had no power to make. 

Appeal from the Circuit Court of Bibb, 

Tried before the Hon. James E. Cobb. 

This action was brought by H. J, Callen, against John M. 
Rottenberry and Emily J., his wife, to recover the possession 
of a tract of land particularly described in the complaint; and 
was commenced on the 4th October, 1882. On the evidence 
adduced, the court- charged the jury, on request, that they must 
find for the defendants, if they believed the evidence ; and 
this charge, with other rulings on the pleadings and evidence, 
to which the plaintiff excepted, is now assigned as error. The 
opinion of the court states all the material facts. 

A. C. IIakgkove, for the appellant. 

Smith & Peiers, and Watts & Son, contra. 

CLOPTON, J.— On October 20, 1869, Thomas Lawrence 
recovered, in the Circuit Court of Bibb county, a judgment 
nil dicit against Emily J. Rottenberry and Jordan Risinger, 
for fourteen hundred and ninety-four 57-100 dollars. The 
cause of action, upon which the judgment was rendered, was 
a promissory note made by Emily Rottenberry, Charles J. Rot- 
tenberry, and Jordan Risinger, At the time of the making of 
the note, of the commencement of the suit, and of the rendi- 
tion of the judgment, Emily Rottenberry was a married woman, 
the wife of John M. Rottenberry, her co-defendant in this case. 
An execution was issued on the judgment, and levied upon the 



170 SUPKEME COURT [Dec. Term, 

[Callen v. Rottenberry.] 

lands in controversy, as the property of Etnily J. Rottenberry ; 
and they were sold by the sheriff, in Marcli, 1882. At this 
sale, the lands were purchased by the appellant, to whom the 
sheriff executed a deed. The interest of Emily Rottenberry in 
the lands was her statutory separate estate. This suit was 
brought by the appellant to recover the lands, deriving his title 
from the sheriff's sale and deed. 

As to the validity of a judgment against a married woman, 
upon a personal contract made during coverture, there is much 
conflict of authority. In several of the States, such judgment 
is held to be void, and the doctrine maintained, that a married 
woman may assert the defense of coverture against any judg- 
ment thus rendered, the same as it was available before the 
rendition of the judgment. In many other States, a judgment 
against a married woman is held to be valid and conclusive, 
until reversed and set aside by some proper mode. In Freeman 
on Judgments, § 150, it is said: ''The preponderance of au- 
thority is in favor of the rule, that a judgment against a mar- 
ried woman is not void ; and that when erroneous, because 
based upon a contract which she was not competent to make, 
or from any other reason, it is still binding upon her until set 
aside on appeal, or by some other appropriate method." Al- 
though presented by the argument of counsel, we do not pro- 
pose to decide, at this time, which is the correct doctrine, as 
from the view we take of this case, the determination of that 
question is not necessary to its decision. 

As a general rule, a judgment is conclusive upon all pre- 
existing defenses, and upon all facts actually litigated and 
decided, or necessarily involved in the issue — upon all matters 
antecedent to, and authorizing its rendition ; but not upon 
matters extrinsic, or which may subsequently occur, unless such 
subsequent matters are included therein. A judgment on a 
promissory note is conclusive that the amount adjudged is due 
to the plaintiff by the defendant ; but the methods and pro- 
ceedings for the enforcement of its collection are provided and 
formulated, and the property liable to seizure and sale for its 
payment is prescribed, by either the common law, or legislative 
enactments, and not by the judgment. To provide other 
means and modes by the judgment is judicial legislation. 

Notwithstanding, then, a judgment m personam was rendered, 
the question remains, is the separate estate of femms covert, as 
created and regulated by the statutes of this State, subject to 
levy and sale under execution on a judgment upon a personal 
contract, which she was incompetent to make ? 

In the consideration of this question, we receive but little, 
if any, aid from the decisions in other States upon their re- 
spective " Married Women's Acts." In those States in which 

Vol. lxxvi. 



1884.] OF ALABAMA. 171 

[Callen v. Rottenberry.] 

a married woman is made capable of contracting, and of suing 
and being sued, generally, it is held that the same judgment 
may be rendered against her, upon a personal contract, with 
the same process for its enforcement, as if she were •A.femme 
soU. — Patrick v. Littell, 36 Ohio St. 79. In those States in 
which she is authorized to make contracts, specially, in relation 
to her separate estate, or her trade or business, it is held, that 
judgment at law may be recovered against her, and her separate 
estate taken on execution, as if she were unmarried, if the con- 
tract is within the special cases provided by the law. — Williard 
V. Kastham, 15 Gray, 328. So far as we have ascertained, our 
statutes are unlike those of any other State, creating a separate 
estate sui generis. 

Section 3179 of Code of 1876 provides: "For the satisfac- 
tion of judgments, the party in whose favor a judgment is ren- 
dered, whether for debt, damages or costs, may, within a year 
thereafter, have a writ of Jieri facias against the lands and 
goods of the party against whom the judgment is rendered ;" 
and section 3209 prescribes the property, real and personal, 
upon which executions may be levied. The words of these 
sections are broad enough to include judgments against married 
women, and the levy of executions upon their separate estate. 
General provisions, however, do not override special provisions 
in the same act. If special provisions are made in reference 
to particular property, they must be construed as exceptions 
from the general provisions. The Code was adopted b}^ a 
single act of the legislature. Its different parts became law at 
the same time, and must be construed together, as if one act. 
Some effect must be given to every section. If special provi- 
sions, relating to the separate estates of married women, are 
contained therein, that make inapplicable the broad words of 
sections 3179 and 3209, these special provisions must be con- 
strued as exempting such separate estates from the operation 
of the general provisions of these sections ; upon the same 
rule, that those sections which exempt certain property from 
levy and sale under legal process are exceptions from the same 
general provisions. 

In Freeman on Executions, § 110, after quoting the expres- 
sion — " the general rule of law is, that all chattels, the property 
of the debtor, may be taken in execution " — the author says : 
"Perhaps it would be more accurate to say, that all kinds of 
personal property of the debtor, which can, at law, be by him 
njade the subject of a voluntary transfer of title, can by exe- 
cution be made the subject of an involuntary transfer." 
Whether property can be taken in execution rests upon the 
power of disposition, and of the capacity to charge it with 
debt. If the debtor has no power of disposition, or a power 



172 SUPREME COUET [Dec. Term, 

[Callen v. Eottenberry.] 

limited and restrained as to mode and ptirpose, other than for 
the paynient of debt, there can be no involuntary and compul- 
sive transfer of the title by execution, — Howell v. Hale, 5 Lea 
(Tenn.), 406. If the property is not liable for the debt upon 
vi^hich judgment is rendered, if there be no power thus to 
charge it, the rendition of judgment can not create a liability. 
The debt is merged in the judgment, which determines its 
amount, and validity as a personal charge ; but the judgment 
has no force to defeat the operation of statutes, that exempt 
the property from being made liable for the debt. 

The application of these principles involves a consideration 
of the statutes creating and regulating the separate estates of 
married women. 

By the statutes, all the property of the wife, held by her 
previous to the marriage, or to which she may become entitled 
after the marriage, in any manner, is her separate estate, and 
is not subject to the debts of her husband. The rigiit and 
title to the property is secured to the wife, but it vests in the 
husband as trustee, with the right to manage and control it, 
and to receive the rents, income and profits, without liability 
to account to the wife, her heirs, or legal representatives. A 
substantial and valuable interest in the estate is vested in the 
husband. — Seals v. Eohinsoji, 75 Ala. 363. By no act done or 
suffered by the wife alone, or jointly with another, without the 
concurrence or consent of the husband, can he be removed 
from his trust, and divested of his right to manage and control 
her separate estate, and to receive the rents, income and profits. 
He may renounce the trusteeship of the legal estate of his 
wife, and all rights and privileges incident thereto ; in which 
event, the estate remains the property of the wife, but her 
separate estate. — Harris v. Harris, 71 Ala. 536. 

The only mode, provided by the statutes, to remove the hus- 
band from the trust, otlier than as the effect of a divorce, is by 
bill in chancery, filed by the wife against the husband, alleging 
his unfitness or incapacity for the discreet and proper manage- 
ment of her estate. If a decree is made removing him, the 
wife thereafter has the same control over her estate, and the 
rents, issues and profits thereof, as if she were 2^feramesole, and 
may sue and be sued in her own name. 

The right of the husband to manage and control the estate, 
and to receive the rents, income and profits, entitles him to its 
exclusive possession. In Goode <& U brick v. Longmire, 35 Ala. 
668, it was held, that a vested remainder in personal property 
can not, either by the common law, or under the statutes of 
this State, be seized under execution during the continuance of 
the life-estate, while the property is in the possession of the 
tenant for life. A levy upon personal property necessarily im- 

VOL. LXXVI. 



1884.J OF ALABAMA. 173 

[Callen v. Rottenberry.] 

plies a seizure, and no property is subject to levy which the 
sheriff can not lawfully take into possession. If a levy can 
be made upon the separate estate of the wife, the sheriff may, 
by virtue of an execution a<j;ain8t the wife alone, take her per- 
sonal property from the possession of the husband, without his 
consent ; which, if done, would be a trespass. 

The statutes further provide, that the property of the wife 
may be sold by the husband and wife, and conveyed by them 
"jointly, by instrument in writing, attested by two witnesses. 
It has been uniformly held by tliis court, that a sale of the 
corpus of the statutory separate estate is void, unless it is in 
writing, signed by both husband and wife, and attested, or ac- 
knowledged, as required by the statute. A joint conveyance 
in writing by both husband and wife, and thus attested or ac- 
knowledged, is the only mode of disposing of her property, by 
voluntary transfer, that will operate to divest her title. The 
purpose of the sale is the re-investment of the proceeds in other 
property, which becomes the separate estate of the wife, or 
they may be used by the husband in such manner as is most 
beneficial for her. The wife can not execute a valid mortgage 
on her property, as security for her own debt, or the debt of 
her husband, or of any other person. A deed executed by the 
wife alone, when the husband signs another instrument under 
seal, on the same paper and at the same time, expressing his 
consent to, and approval of the sale and conveyance, has been 
held to be the deed of the wife alone, and is not a compliance 
with the requisitions of the statute. — Ilamtnond v. Thovt.pson., 
56 Ala. 589 ; McDonald v. Mobile Life Ins. Co., 56 Ala. 468 ; 
Williams v. Auerhach, 57 Ala. 90 ; Pollak & Co. v. Graves., 
72 Ala, 347. Any conveyance, other than in the mode, and 
for the purpose prescribed by the statute, is forbidden by law, 
and is void. — Northington v. Faher., 52 Ala. 45. The wife's 
power of disposition is limited and restrained, both as to mode 
and purpose. 

The separate estate is liable for " all articles of comfort and 
support of the household, and for tuition of the ciiildren of 
the wife, suitable to the degree and condition in life of the 
family, and for which the husband would be responsible at 
common law." This liability must be enforced in the form 
provided by the statute; and if by death, or otherwise, the 
statutory remedy can not be pursued, the separate estate can 
not be charged. The estate existing at the date of the contract 
-is liable — not subsequently acquired property ; and if the suit 
is against husband and wife jointly, the judgment against the 
wife must specify the property liable. " A general judgment, 
or a judgment wliich pretermits the ascertainment of the estate 
of the wife condemned to its satisfaction, can not be rendered." 



174 SUPREME COURT [Dec. Term, 

[Callen v. Rottenberry. | 

McCravey v. Todd, 6Q Ala. 315 ; Hinson v. Oamhle <& Boil- 
ing, 65 Ala. 605 ; Ravisies v. Stoddart, 32 Ala. 599 ; Lee v. 
Ryall, 68 Ala. 354. Upon no other contract, and in no other 
mode, when the suit is upon a contract, is she suable at law, 
except upon debts contracted before the marriage. 

The statutes, as construed by numerous decisions of this 
court, relieve from and modify the disabilities of coverture, 
only to the extent expressed in them. The wife is not sui 
juris I her estate is not a separate estate in its broadest import; 
nor has she capacity to contract beyond the express provisions 
of the statutes. "The uniform construction of the general 
statute has been, that while it enlarged the capacity of the 
wife to take and hold property, owned by her at the time of 
the marriage, or accruing to her subsequently, it did not en- 
large her capacity to contract, even in reference to her separate 
estate, except in the mode and for the purposes pointed out 
and prescribed." Beyond a contract for articles of comfort 
and support of the household, and for tuition of the children 
of the wife, neither the husband, nor the wife, nor both jointly, 
can make the separate estate liable for any debt. — Ashford v. 
Watkins, 70 Ala. 156 ; Zee v. Tannenhaum^ 62 Ala. 501. The 
prohibitory rules of the common law, upon the power of the 
wife to contract, are in force, except to the extent displaced by 
the express provisions of the statutes. — Warjield v. Ravisies, 
38 Ala. 518. 

Her husband is not a party to the judgment against Mrs. 
Rottenberry. If a sale of her separate estate, under execution 
on tlie judgment, operates to pass her title, the results are, 
that by a general and personal judgment of the Circuit Court 
against the wife, without her husband being a party, he is re- 
moved from his trust, deprived of his right to manage and 
control her estate, without his consent, or a renunciation of 
his rights, and divested of his interest in the estate ; the wife 
is divested of her right and title to the property, which she 
has no power to dispose of for the purpose of paying the judg- 
ment, and which she could not charge with the debt before or 
after judgment ; and this, by means other than those provided 
by the statute ; and a more effectual and reaching charge upon 
her separate estate is given to a contract that she was incom- 
petent to make, and wliich is absolutely void, than is possessed 
by a contract for which the statute declares expressly the 
separate estate is liable; forasmuch as property acquired subse- 
quently is subject to levy and sale under execution and personal 
judgment for money. 

We are not unadvised, that in Freeman on Executions (§ 128) 
the author says: "When a personal judgment for money is 
entered against a married woman, either alone or in connection 

Vol. lxxvi. 



1884.] OF ALABAMA. 175 

[Callen v. Rottenberry.] 

witli other defendants, it is commonly conceded that execution 
may be issued, under which tiie sheriff may seize and sell her 
separate property." This statement needs qualification. Its 
correctness may be conceded, when the statutes I'emove the 
disabilities of coverture altogether, or enlarge the capacities of 
a married woman to contract, dispose of property, and to sue 
and be sued, as if she were unmarried; but not when the 
statutes, like ours, strictly limit the power to charge and 
alienate. 

In Ilaygood v. Harris, 10 Ala. 291, it was held, that as the 
wife " could not be sued separately, a fortiori, an execution 
can not issue against her individually, either on a judgment 
obtained l)efore or after marriage." This decision was made 
prior to the enactment of any statute creating separate estates, 
and was based upon principles of the common law. Although 
referred to, by the author above quoted, as standing alone, the 
same rule, as to judgments obtained after marriage, even for 
debts contracted before marriage, is virtually declared in 
Crocker c§ Wife v. ClemenU, 23 Ala. 296. Cnn/roN, C. J., 
says: "It appears to be well settled by the authorities, that 
aside from the statutes exempting the person of the wife from 
arrest, upon civil demands, both she and her husband might be 
taken in execution, and, when so taken, she was not entitled to 
her discharge, unless it was made to appear to the court that 
she had no separate property out of which the demand could 
be satisfied. . . . These authorities show, that even at 
common law, the separate property of the wife was made liable 
to satisfy her prior debts, in cases where it was in the power of 
that court to reach it. But our statute, exempting the wife 
from imprisonment for debt, effectually takes away the power 
of the common-law forum thus to afford relief." According 
to this decision, and the authorities cited in the opinion, the 
method by the common law by whicli the separate property of 
a married woman can be reached to satisfy a civil demand, is 
not by execution to be levied upon her separate property, but 
by arresting and detaining lier person, until satisfaction of the 
judgment is made out of her separate estate. 

A married woman is regarded in equity, as to her equitable 
separate estate, a femme sole, with power to bind it for any 
contract she may make, where the instrument creating it con- 
tains no restraint upon her power; and a court of equity will 
subject it to her debts, upon the ground, that her capacity not 
being limited by the creating instrument, she "has a stains in- 
dependent of, and separate from that which, at law, coverture 
imposes." But, where the instrument creating it contains a 
restraint upon her power, it can not be subjected to her debts, 
beyond the extent of her power to charge or alienate. — Baker 



176 SUPKEME COURT [Dec. Term, 

[Wilkinson v. Searcy.] 

V. Gregory, 28 Ala. 544 ; Turner v. Masson and Kelly, 70 Ala. 
85 ; Hume v. Tenant, 1 Bro. Ch. R. 46 ; Morgan v. Elam, 
4 Yerger, 375 ; Noyes v. Blakeman, 2 Sel. 567. The power of 
the court to sell, and the power to charge, or dispose of, must 
co-exist, and are co-extensive. 

On the foregoing principles we hold, that the statutory 
separate estate of a married woman can not, under the statutes 
of this State, be reached by a legal execution, other than for 
debts contracted before marriage. No title to the lands in con- 
troversy passed to the plaintiif by the sheriff's sale and deed. 

It is unnecessary to pass on the other rulings of the court 
raised by the record ; for, if erroneous, they are errors without 
injury. 

Affirmed. 



TVilkinson v. Searcy. 

Trespass for taking Personal Property. 

1. Possession as evidence of title ; sufficiency of plea. — Possession of 
property, thougii presumptive evidence of ownership, is not title, nor the 
equivalent of title ; and where the defendant, in trespass for taking per- 
sonal property, justifies under a mortgage executed to him by a third 
person, a plea averring that the mortgagor was, at the time, in posses- 
sion of the property, claiming it as his own, does not show title or 
ownership in him, and is demurrable. 

2. Vindictive damages ; tvhen recoverable. — To authorize the recovery 
of vindictive, punitive, or exemplary damages, something more must be 
shown than a " mere disregard of the rights of others," which is in- 
volved in every trespass, except those committed in honest mistake, or 
by accident, or, possibly, by misadventure. 

3. Same ; averment of. — Exemplary damages are not special damages, 
and may be recovered although not specially alleged and claimed in the 
complaint. 

4. Sufficiency of evidence ; charge as to. — In civil actions, the evidence 
is sufficient to authorize a recovery, if it " satisfactorily convinces " the 
jury; "clearly and satisfactorily convinced from the evidence," when 
the words are used in a charge requested, reguires too much. 

5. Charge invading province of jury. — A charge to the jur}"^ in these 
words, "If you find, from the evidence, that the defendant testified he 
took the corn under the honest belief that it was 13. 's under the mort- 
gage, and you find, from the evidence, that the acts and conduct of the 
(iefendant in the transaction speak louder than the words thus testified 
by him, and show that the taking was not under such honest belief," 
&c., invades the province of the jury. ' 

Appeal from the Circuit Court of Butler. 
Tried before the Hon. Jno. P. IIuubard. 
This action was brought by J. A. Searcy, against W. W. 
Vol. lxxvi. 



1884.] OF ALABAMA. 177 

[Wilkinson v. Searcy.] 

Wilkinson. The complaint contained a single count, wliicii 
claimed $150 as " damages for wrongfully taking the following 
goods and chattels, the property of the plaintiff, viz., fifteen 
bushels of corn in the ear." The defendant pleaded not 
guilty, and a special plea whicli averred that the corn was con- 
veyed by a mortgage executed to him by one Simon (lolson, 
and was taken by him, with the consent of said Golson, under 
and by virtue of said mortgage, after the law-day and default. 
The court sustained a demurrer to this plea, and it was then 
amended, by leave of the court, by adding an averment that, 
at the time the mortgage was executed, "said Golson was in 
possession of said property, claiming it as his own." A de- 
murrer was sustained to the plea as thus amended, and it was 
then again amended, by leave of the court, by alleging that said 
Golson, at the time the mortgage was executed, " was the 
owner of said property ; " and issue was then joined on both 
of the pleas. 

On the trial, as appears from the bill of exceptions, it was 
shown that the defendant, on or about the 27th February, 1883, 
sent a nutn with a wagon out to the plaintiffs plantation, and 
took about twelve or thirteen bushels of corn out of a crib near 
the house occupied by one Simon (toIsou, who was a tenant of 
the plaintiff, no one being present at the time except a daughter 
of said Golson, who, as defendant's agent testilied, told him 
that the corn belonged to her father. The plaintiff testified, 
in his own behalf, that the corn was his, and was sent down by 
him to Golson to feed a mule which Golson was using, because 
Golson had no corn ; and he further testified that he Jiad in- 
formed defendant, on several occasions, before the taking of 
the corn, in answer to inquiries, that Golson had no corn on 
the place. The defendant claimed to have taken the corn under 
a mortgage executed to him by said Golson, which was dated 
January 9th, 1883, and purported to be given to secure ad- 
vances made to raise a crop during the year 1883 ; but it 
recited that the mortgagor then had on hand, of the crop of 
1882, over one hundred bushels of corn ; and the defendant, 
testifying as a witness for himself, stated that said Golson told 
him, at the time, that he owed plaintiff nothing, and was will- 
ing that defendant should then take some of the corn in part 
payment of the debt, " and that he took the mortgage to vest 
title to the corn in himself." The defendant testified, also, 
" that he took the corn under and by virtue of said mortgage, 
believing that it was the property of said Simon Golson ;" and 
that when the plaintiff afterwards claimed the corn, and spoke 
to him about it, " he said he would investigate the matter, and 
pay for it if it was plaintiff's." As to this interview, plaintiff 
testified, that he " told defendant he must send the corn back, 
12 



178 SUPREME COITIIT [Dec. Term, 

[Wilkinson v. Searcy. J 

or pay for it ;" and that defendant replied, "if he (phiintilf) 
got the corn, he would have to do so at the end of the law." 
Golson, who was examined as a witness for the plaintiif, sus- 
tained the plaintiff's own testimony, and contradicted that of 
the defendant. 

''The court charged the jury, among other things, that a man 
is cliarged with the duty of exercising ordinary care, in taking 
property to which he is entitled, so as to get the right property ; 
and if a man, in thus taking property, had no title to, or right 
to take it, and takes another person's property hy not using 
ordinary care, so as to get his own, or that which he is entitled 
to, he is liable for the damages that result from taking such 
other property, to the owner thereof; one can not carelessly 
take another's property, and thereby not be liable. To this 
portion of the general charge the defendant duly excepted." 

The plaintiff asked the following charges, in writing: 1. 
" Exemplary damages mean damages given by way of punish- 
ment for the commission of a wrong willfully or recklessly 
[done] ; and if the jury find, from the evidence, that the 
property was wrongfully taken, and that it was done under 
such circumstances, or in such manner, as to show a disposition 
on the part of the defendant to wantonly possess himself of 
such property, regardless of the plaintiff's rights thereto, then 
the jury may, in addition to the value of the property taken, 
assess such exemplary damages, by way of })unishment to the 
defendant, as to them shall seem just and proper, in view of 
all the evidence in the case, not to exceed $150." (2.) " If the 
jury find, from the evidence, that the property was wrongfully 
taken by the defendant, and that the act of taking was done 
under such circumstances as to show a disregard of the rights 
of the plaintiff, or an intention to set at defiance his legal 
rights, or the ordinary obligations of society, then they are 
authorized, in addition to the value of the property taken, and 
interest thereon, to assess such further damages as they may 
deem just and proper, in order to punish the defendant for his 
willful wrong, and to prevent others from committing like 
offenses, but not to exceed $150 in all." To each of these 
charges the defendant duly excepted. 

The following charges were asked in writing by the defend- 
ant, and refused by the court, exceptions being duly reserved 
by him to the refusal of each : (1.) '"Under the averments of 
the complaint, vindictive damages can not be given to the 
plaintiff." (2.) " Unless the jury are. clearly and satisfactorily 
convinced, from the evidence in the case, that the defendant 
committed a trespass upon the plaintiff's property maliciously, 
or in a wanton and aggravated manner, and with the desire to 
vex and iiarass the plaintiff, exemplary damages should not be 
Vol. lxxvi. 



1884. J OF ALAP>AMA. 179 

[Wilkinson v. Searcy.] 

allovvL'd." (0.) " To authorize the jury to give exemplary or 
vindictive damages, either malice, violence, oppression, or 
wanton recklessness to plaintiff must mingle in the contro- 
versy. The act complained of must partake of a criminal, 
wanton nature, else the amount to be recovered will be confined 
to compensation." (12.) ''Vindictive damages should not be 
giv^en, unless the wrong or injury proved is of a grievous 
nature, done with a high hand, or is accompanied with a 
deliberate intention to injure, or with words of contumely and 
abuse, and by circumstances of aggravation." 

The rulings of the court on the demurrer to the special plea, 
the charges given, and the refusal of the charges asked, are now 
assigned as error. 

Gamblk & RiciiAUDSON, for appellant. — (1.) The court erred 
in sustaining the demurrer to the special pleas which averred 
possession by the mortgagor, default, and taking possession 
under a power in the mortgage. Possession is jjr'ima facie 
evidence of title. — Hohhs v. Bihh, 2 Stew, 54 ; Governor v. 
Camphell, 17 Ala. 566; 1 Brick. Dig. 806, §§ 37-39. As to 
the mortgagee's right to take possession after default, see Street 
V. Sinclair, 71 Ala. 110; Burns v. Camphell, 71 Ala. 271 ; 
Jones on Mortgages, § 434. The plea averred facts on which 
an issue might be taken ; while an averment of title, as assigned 
in the demurrer, would have been the averment of a legal con- 
clusion.— 2 Brick. Dig. 330, § 3 ; Ih. 347, §§ 277-80. The 
amended plea, after demurrer sustained, averred ownership in 
the mortgagor, and imposed on defendant the burden of proving 
it ; while the complaint averred ownership in the plaintiff, and 
imposed on him the burden of proof. (2.) No phase of the 
evidence authorized a recovery of vindictive damages, and the 
court erred in its rulings on the question, both in the charges 
given, and in the refusal of the charges asked. — Leinkauf v. 
Morris, 66 Ala. 406 ; Burns v. CampbeU, 71 Ala. 291 ; Tlair 
V. Utile, 28 Ala. 236 ; Boherts v. lleim, 27 Ala. 678 ; Parker 
V. Mise, 27 Ala. 480 ; Durr v. Jackson, 59 Ala. 210 ; Rail- 
road Co. V. McLendon, 63 Ala. 266. Charge No. 6, as re- 
quested, is copied literally from Sedgwick on Damages, 538 ; 
and the 12tli charge is copied from Addison on Torts, vol. 2, 
p. 646. 

BuELL & Lank, contra. — (1.) The special plea tendered an 
immaterial issue, and the demurrer to it was properly sustained ; 
and even if the ruling was erroneous, it could have worked no 
injury, since the defendant had the full benefit of the facts on 
which he relied, under the general issue. — 1 Brick. Dig. 788, § 
71. (2.) If there be error in any part of the general charge, 



180 SUPREME COURT [Dec. Term, 

[Wilkinson v. Searcy.] 

it is not in that portion to which an exception was reserved. 
(3.) To authorize a recovery of exemplary damages, it was not 
necessary that they should be specially averred in the com- 
plaint. — Sedg. Dam. 682, note, 5th ed. (4.) Exemplary 
damages were not claimed on the ground that there was any 
evidence of malice, or injury to the person, feelings or reputa- 
tion of the plaintiff, but on the ground that the trespass was a 
willful and wanton disregard of the rights of others, and showed 
an intention on the part of the defendant to take the law into 
his owp hands ; and for such trespasses the law authorizes the 
imposition of punitive damages, not as compensation to the 
plaintiff, but as a punishment to the defendant. — Devaughn v. 
Heath, 37 Ala. 395; Welch v. Durand, 36 Corm. 182 ; Sedg. 
Dam. 529, 531 ; 2 Add. Torts, § 1392, notes. (5.) The second 
charge asked required too high a measure of proof, and was 
calculated to mislead.— 1 Brick. Dig. 871-2, §§ 964-67. The 
6th and 12th charges, though quoted from the cases cited in 
Sedgwick and Addison, and properly used there, unduly restrict 
the standard of liability in a case like this. 

STONE, C. J. — It is very true that possession is prima 
facie evidence of the ownership of property. Such is the pre- 
sumption, when one is found in possession of property. So, if 
one be sued for property, and the plaintiff proves prior posses- 
sion, antedating that of defendant, accompanied with customary 
acts of ownership, this authorizes a recovery by the plaintiff, in 
the absence of countervailing proof. — 1 Brick. Dig. 572, §§ 
10, 11 ; TIare v. Fuller, 7 Ala. 717 ; Nelson, v. Bondurant, 26 
Ala. 341 ; Tarrij v. Broxon., 34 Ala. 159. So, title, with a 
right to the immediate possession, will maintain the action 
against a wrongdoer. — Nelson v. Bondurant^ svjyra. 

While, however, possession will maintain or defeat an action 
against a wrongdoer, and is, to that extent, evidence of title, it 
is not title, nor the equivalent of title. It is but evidence of 
title, which may be rebutted and over-turned. Title is a fact. 
Possession is only testimony tending to prove it. Pleading is 
made up of matters averred as facts, and not of testimony which 
merely tends to prove them ; unless, perhaps, in cases where 
the evidence averred as itself the fact, or its equivalent. The 
averment of a written contract executed, may be of this class. 
The second plea as originally filed, and as first amended, was in 
each case insufticient, and the demurrer to it was rightly sus- 
tained. 

Only one clause in the general charge was excepted to, and 
we find no error in that. 

In Barbour County v. Ilorn^ 48 Ala. 566, 576, the following 
language is found, declaratory of the rule for exemplary dama- 

VOL. LXXVI. 



i««4.j OF ALABAMA. 181 

fAVilkinson v. Searcy.] 

ges in actions of trespass : " Where there is no malice connect- 
ed with tlie wrong conipUiiiicd of, or such gross negligence or 
oppression or fraud as amounts to malice, the compensation, or 
amount of damages, should be confined to the actual injury and 
its immediate effects." In S. d) JV. Railroad Co. v. McLendon, 
63 Ala. 266, we quoted this language without dissent. In that 
case, after quoting the rule as declared in many adjudged cases, 
we in effect said, there could be no punitive or exemplary 
damages, in the absence of fraud, malice, oppression, willful- 
ness, wantonness, recklessness, or gross carelessness, as distin- 
guished from mere carelessness. In reference to carelessness, 
or negligence, in the coimection here considered, we said it de- 
pends on the degree, whether simple or gross. In the later 
case of Lienkauff V. Morris^ ^^ Ala, 406, we again considered 
tiiis question, and reviewed many authorities. The sum of 
what we said and approved in that case is, that to authorize 
punitive, exemplary, or vindictive damages (different names 
for the same thing), there must be "gross negligence within 
the strictest signification of the phrase, which must be con- 
strued to mean such entire want of care as to raise a presump- 
tion that the person in fault is conscious of the probable conse- 
quences of his carelessness, and is indifferent, or worse, to the 
danger of injury to the persons or property of others ;" or that 
the act complained of " was done willfully [in its strong sense], 
or was the result of that reckless indifference to the rights of 
others, which is equivalent to an intentional violation of them ;" 
or " where the injury has been wanton, or malicious, or gross ; " 
or •' where fraud, malice, or oppression appears ; " or, we may 
add, where the taking is accon)panied with violence, or insult- 
ing or contemptuous language or demeanor. A reason for this 
rule which requires more than a mere disregard of the rights of 
others, to authorize the assessment of vindictive damages 
against a trespasser, is found in the fact, that that element 
exists in every trespass, except those committed in honest mis- 
take, or by accident, or, possibly, by misadventure. So, if 
every trespass committed in disregard of the rights of another, 
entitles the injured party to vindictive damages, there are few 
conceivable trespassers on whom such punishment may not be 
infiicted. 

The second charge given at the instance of plaintiff, is in 
the following language: "If you find from the evidence that 
the property was wrongfully taken by the defendant, and that 
the act of taking was dojie under such circumstances as show 
a disregard of the rights of plaintiff, . . . then you are 
authorized, in addition to the value of the property and interest 
thereon, to assess such further damages as you may deem just 
and proper, in order to punish the defendant for his willful 



182 SUPREME COUllT [Dec. Term, 

[Wilkinson v. Searey.] 

wrong, and to prevent others from committing like offenses." 
In giving this charge, tlie court was not without authority. 
See 2 Add. on Torts, Wood's ed., § 1392, note 1. We hold, 
however, that it does not assert the true rule, and that the 
Circuit Court erred in giving this charge. There is similar 
language, somewhat qualified, in the first charge given at plain- 
tiff's request. Such language should be avoided on another 
trial. 

The charges asked by defendant were properly refused. 
Exemplary damages are not special damages, which need be 
claimed in the complaint, as a condition of their recovery. 
This disposes of charge 1. The measure of proof postulated 
in the second charge asked, is too high. " Satisfactorily con- 
vinced," meets the requirement in a civil suit. There are 
other objections to this charge, not necessary to be here re- 
peated. Charges 6 and 12 are both faulty, and not in accord- 
ance with the rule laid down above. 

As this case must go back for another trial, we feel it our 
duty to notice an objectionable clause found in the general 
charge, which does not appear to have been excepted to. We 
do this in the fear the case may return upon us, presenting 
this question. One question in the court below raised the 
incjuiry, whether Wilkinson, when he took and carried the corn 
away, had been notified that Searcy claimed it as his own. 
On this, Searcy and Wilkinson wei'e directly at issue. The 
court charged on this question as follows: "If you find from 
tlie evidence that defendant in his evidence testified he took 
the corn under the honest belief it was Simon's under the 
mortgage, and you find from the evidence the acts and conduct 
of the defendant in the transaction speak louder than the words 
thus testified by him, and show that the taking was not under 
such honest belief," &c. This was not the statement of a mere 
legal principle, to aid the jury in weighing the testimony. If 
it had been, we would find in it nothing to criticise. It is fi-e- 
quently the court's duty to furnish such rules for the guidance 
of the jury. Beyond such rules, however, the duty of weigh- 
ing the testimony, and of determining its credibility iind what 
it proves, falls exclusively within the province of the jury. 

Ileversed and remanded. 



J8«^J OF ALABAMA. 183 

{Ilelmetag's Adm'r v. Miller.] 



Heliiietag's Adin^r v. Miller. 

BiU in Equity hy Administrator of Assured, against Assignee 
of Policy of Life Insurance. 

t. Life insurance ; insf arable interest ncccssarii to uphold policij. — A 
{)oli(;y of iii^uram-e tukeii out by one i)er8on on the life of another, in 
which he has no insurable interest, is illegal and void on grounds of 
public policy. 

2. Assignment of policy ; rights and interest of assignee. — An assign- 
ment of a policy, taken out by a person on his own life, is within the 
l)rinciple and reason whicli render void an original policy on the life of a 
periion in whom the person taking out tlie j)olicy has no insurable in- 
terest; and whether it be absolute or conditional (as collateral security), 
it is only valid in the hands of the assignee to the extent of the money 
paid by him, with interest thereon. 

Ai'J'KAi- from the Chancery Court of Mobile. 

Heard before the Hon. John A. Fostkk. 

The bill in this case was filed on the 27th Xoveniber, 1883, 
by Mrs. Amelia Helmetag, as the administratrix of the estate 
of her deceased husband, Frederick W. Helmetag, afj;aiust 
John W. Miller; and sought an account from tlie defendant of 
moneys which he had received on a policy of life-insurance 
assigned to him by said decedent in his life-time, and a decree 
in favor of the complainant for the balance which might be 
found in his hands, after allowing the amount which he might 
be entitled to retain. The policy was for $.5,000, and was dated 
October 1st, 1867; being taken out by said Helmetag. on his 
own life, in the Equitable Life Assurance Society of the United 
States. The annual premium was ^134.80, payable in quar- 
terly installments; and tlie policy was, by its terms, made 
payable " to said Frederick W. Helmetag, his executors, admin- 
istrators, or assigns." The bill alleged that said Helmetag paid 
the premiums on the policy, (juarterly as stipulated, until some 
time in May, 1877, when, being hard pressed for money, he 
liypothecated it to the defendant for a loan of money, about 
$100, and afterwards obtained, from time to time, additional 
loans on its security, all amounting to about $750; that the 
defendant took a written assignment of the policy, which, 
though absolute in its terms, was intended only as collateral 
security for said loans ; that the defendant, some time in the 
summer of 1880, taking advantage of the absolute terms of the 
assignment, and abusing his trust created by said hypotheca- 
tion, sold and surrendered the policy to said insurance company, 



184 SUPREME COURT [Dec. Term, 

[Helmetag's Adm'r v. Miller.] 

for $2,500 in hand paid ; that said F. W. Ilehnetag died on 
the 2l8t March, 1883, and tliat the defendant had never ac- 
counted with him, nor with the complainant as his administra- 
trix, for tlie money so received on the sale or surrender of the 
policy. The complainant olBPered, in her bill, "to credit said 
defendant, upon a settlement of the matters arising out of the 
sale of said pledge, with ail the amounts received from him by 
said Ilelmetag in the way of loans, with interest thereon, and, 
further to abide l)y and perform any and all orders of the court 
in the premises." The prayer of the bill was, "that said de- 
fendant may be compelled to render a true and full account of 
the proceeds in money by him received from the unauthorized 
sale of said policy ; that he be charged with interest on the 
same from July 3d, 1880," the day on which he received the 
money; "that he be credited, on the taking of said account, 
with all loans by him made on the faith and security of said 
pledge, with lawful interest, whenever entitled to the same ; 
that complainant be decreed to be entitled to the balance which 
may appear due to her as the personal representative of said 
F. W. Ilelmetag ; and that she may liave such other and further 
relief as tlie nature of the case may require," &c. 

The defendant answered the bill, and admitted that the policy 
was at first delivered to him by Ilelmetag as collateral security 
for a loan, and that he afterwards made other loans on the faith 
of it; but he alleged that there was no written assignment of 
the policy until March 3l8t, 1877, when his loans amounted to 
about $250, and he then purchased the policy absolutely, l\v 
paying the additional sum of $525 for it. As to this assign- 
ment, the answer contained these allegations: "Respondent 
had advanced for said Ilelmetag, in paying his rent-notes and 
premiums, about $250, or more, with accrued interest, when, 
in March, 1877, he was informed that an agent of said insur- 
ance company wds then in Mobile, and was trying to buy said 
policy from said Ilelmetag. Respondent then went to said 
Ilelmetag, and told him that, if he intended to sell said policy, 
he ought to give the preference to respondent, who had aided 
him, and had advanced money to him, not only to keep him 
from being turned out of his house, but to keep the policy 
alive ; that the policy would have been forfeited and valueless, 
but for his advancing the premiums. He admitted the force 
of these allegations, and said that, if he sold it, he would give 
respondent tne preference ; and he further stated, that the 
iigent had offered him $500 for it, but that he would not take 
it. He came to respondent, a few days after this, to negotiate 
for the sale; which negotiation resulted in respondent's buying 
said policy from liim for the sum of $783.24, which included 
the amounts so advanced, with the interest thereon. The exact 

Vol. lxxvi. 



1884.] OF ALABAMA. 185 

[Helmetag's Adin'r v. Miller.] 

ii^urcs respondent does not recollect, but he paid said Ilehnetag 
>{^525 in cash, besides payin^j and extinguishing said sums so 
advanced." The assignment, which was made an exhibit to 
the answer, is dated March 31st, 1877, and uses these words : 
'• For value received, I hereby transfer, assign and set over, 
unto John W. Miller, all and singular my right, title and 
interest in and to policy," describing it. 

On tinal hearing, on pleadings and proof, the chancellor dis- 
missed the bill ; and his decree is now assigned as error. 

IIannis Taylok, and Henry St. Paul, for the ajipellant. 
The equity of the bill rests on the right of a })ledgor to go 
into equity for a redemption and account, and is undoubted. 
Story's Equity, § 1032; Tyler on I'snry, P. tfc L., 648; Piuje 
V. Burnstein^ 12 Otto, 664. The original pledge, or hypotlu- 
cation as collateral security, is admitted by the defendant; and 
the alleged absolute purchase, at a subsequent time, is new 
matter in avoidance, the burden of proving which rests on him. 
I*hn'c'st V. Eobinson, 2 Ala. 215; Green v. Casey, 70 Ala. 418. 
Hut the assignment, though absolute in its terms, is shown to 
have been intended only as collateral security, and the court 
will so declare it. — Robinson v. Farelly, 16 Ala. 472 ; EUand 
V. Radford, 7 Ala. 724. Whether it l)e absolute or conditional 
is immaterial, as the rights of the parties are the same in either 
case — the defendant can only retain the amount of his advances, 
with interest, and must account to the plaintiff for the residue. 
Cammack v. Lewis, 15 Wallace, 643; Life Lnsarance Co. v. 
Schaefer, 4 Otto, 457; Page v. Burnstein, 12 Otto, 664; 
Warnoek v. Davis, 14 Otto, 775. In this case last cited, the 
court refers to the cases on which the appellee here relies, and 
expressly dissents from them. That the complainant may have 
the appropriate relief, under the general prayer, see ICelly v. 
Payne, 18 Ala. 371 ; Driver v. Fortner, 5 Porter, 10; Stramje 
V. Watson, 11 Ala. 234. 

OvKRALL & Bestok, contra. — The policy was, by its express 
terms, made assignable ; and it was assigned, for valuable con- 
sideration, in proper form. The assignment being absolute in 
terms, the onus was on the complainant to show that it was in 
fact conditional. — Turner v. Wilkinson,72 Ala. 361. But the 
proof shows that the transaction was an absolute sale, and was 
so regarded and treated by all the parties to it ; that the assured 
himself, though he lived several years afterwards, never asserted 
any interest whatever in the policy ; and that the assignee, 
after paying the premiums for three years, surrendered the 
policy at its agreed cash valuation, as authorized by its terms. 
The administratrix now attenipts, on grounds of public policy, 



18G SUPREME COUET [Dec. Term, 

[Helmetag's Adm'r v. Miller.] 

to iiii peach a transaction which her intestate had full authority 
to make, and in which he acquiesced as long as lie lived ; 
though the bill was filed on the idea that the assignment was 
conditional. The principle of public policy invoked, as to 
wager contracts, has no application to such a case as this, 
'' The essential thing is, that a policy shall be obtained in good 
faith, and not for the jjurpose of speculating upon the hazard 
of a life in which the insured has no interest." — Life Ins. Co. 
V. Schaefer, 4 Otto, 457. No taint of fraud, speculation, or 
other immorality, attended the inception of this policy, or at- 
tached to it during the ten years before its assignment ; and 
the assignment, expressly authorized by its terms, contravenes 
no principle of public policy. — Cunningham v. Smith, 70 
Penn. 450; Eq. Life Asso. v. Patterson, 41 Geo. 338; Stvick 
V. Home [nsiiranoe Co., 2 Dillon, 160 ; Ashley v. Ashley, 3 
Sim. 149 ; St. John v. IJfe InsuranceCo., 2 Duer, 419 ; s. c, 
13 N. Y. 31 ; Valton v. Nat. F. Life-insurance Co., 20 N. Y. 
32 ; 1 5 C. B. 365 ; 1 Kay & J. 223 ; Rawls v. Life Insurance 
Co., 36 Barb. 357 ; s. c, 27 N. Y. 282 ; _ Campbell v. A\ E- 
Mutual Ins. Co., 98 Mass. 381 ; Prov. Life Ins. Co. v. Baum., 
29 Ind. 236. 

SOMEIIYILLE, J.— No principle of the law of life-insur- 
ance is at this day better settled, than the doctrine, that a policy 
taken out by one person upon the life of another, in which he 
has no insurable interest, is illegal and void, as repugnant to 
public policy.— 3 Kent's Com. (11th Ed.) 462 63. Such con- 
tracts are aptly termed " wager policies," and are entitled to no 
higher dignity, in the eye of the law, than gauibling specula- 
tions, or idle bets as to the probable duration of human life. 
There is no limit to the insurable interest which a man may 
have in his own life ; but there are forcible reasons why a mere 
stranger should not be permitted to speculate upon the life of 
one whose continued existence would bring to him no expecta- 
tion of possible benefit or advantage. All wagers, at common 
law, were not illegal, but only such as were contrary to good 
morals or sound policy. — Chitty. Contr. 468. The statutes of 
this State makes all contracts by way of gaming or wagering 
void.— Code, 1876, § 2131; Hawley v. Bibh, 69 Ah. 52. 
However this may be, wager policies, or such as arc procured 
by a person who has no interest in the subject of insurance, 
are undoubtedly most pernicious in their tendencies, because in 
the nature of premiums upon the clandestine taking of human 
life. As observed in llusev. The Mutual Benefit Ins. Co.,2'S 
N. Y. 516, "such policies, if valid, not only afford facilities 
for a demoralizing system of gaming, but furnish strong tempta- 
tions to the party interested to bring about, if possible, the event 
Vol. lxxvi. 



l««4.j OF ALABAMA. 187 

[Hehnetiig's Adm'r v. Miller.] 

iiiisnrt'ii against." It lias been sairl l)y aiiotlier court, in a com- 
paratively recent case, that of "all waj^ering contracts, those 
concer?iing the liv^es of human ijeings should receive the 
etrongest, the most emphatic, and the most persistent condem- 
nation." — Missouri Valley Life Ins. Co. v. Sturges^ 26 Amer. 
Rep. 761 ; s. c, 18 Kans. 93. 

What will constitute an insurable interest in the life of an- 
otlier, such as will rescue such contracts from tlie imputation of 
being regarded as wager policies, it is not easy to define by a 
general rule It has been held, in some cases, that the inteivst 
must be, in some sense, a pecuniary one, not predicated merely 
upon the fact of existing relationshij). — Guardian Mut. Life 
Ins. Co. V. Tloyan, 80 111. 35; s. c, 22 Amer. Rep. ISO; Mis- 
souri Vat. Life Ins. Co. v. Siurges, supra. In other eases, a 
contrary view has been intimated, which does not, however, 
seem to be sustained by the weight of authority. — Warnoek v. 
Davis, 104- r. S. 775 ; Continental Life Ins. Co. v. Volger^ 
89 Ind. 572; s. c, 46 Amer. Rep. 185; May on Ins. § 107; 
Lord V. Dall, 12 Mass, 115; s. c, 7 Amer. Dec. 38, and N(rrE, 
p. 42. 

This contrariety of view, however, is of no importance here, 
as it is not denied that tlie appellee. Miller, had an insurable 
interest in the life of Ilelmetag, the decedeiit, to the extent of 
the value which he paid for the policy claimed to have been 
])urchased by him. The bill recognizes this interest, and offers 
to refund to him this amount, estimated at about seven hundred 
and fifty dollars, with lawful interest. The point of contentioii 
is, that, admitting the assignment of the policy to Miller to bo 
an absolute purchase, and not a collateral security, it was never- 
theless void in his hands for the excess, over and above the amount 
which lie paid for it. It is urged, in reply, that a policy taken 
out by a party on his own life, and thus valid in its inception, 
can not become a wager policy by the mere fact of its assign- 
M)ent. It is true that there are cases which sustain this view, 
but they do not, in our opinion, either accord with sound reason, 
or harmonize with the weight of authority. The reason of the 
law which vitiates wager policies, is the pecuniary interest which 
the holder has in procuring the death of the subject of insur- 
ance, thus opening a wide door by which a constant temptation 
is created to commit for profit the most atrocious of crimes. 
This reason applies, with exactly the same force, to holding a 
policy l)y purchase, or assignment, as to holding one originally 
by direct issue from the insurance company. Otherwise the 
law would permit that to be done by indirection, which it pro- 
hibits from being done directly, and the end sought to be 
accomplished could practically be evaded with both facility and 
impunity. The evil of wager policies would rather be aggra- 



18S SUPREME COURT [Dec. Term, 

[Helmetag's Adm'r v. Miller.] 

vated than otherwise by such a rule, because speculators, desiring 
to indulge this species of gambling in human life, could more 
easily purchase from embarrassed policy-holders than procure 
the issue of such policies directly to themselves upon the lives 
of strangers. " In either case," as observed by a recent author 
in treating of this subject, "the holder of such policy is inter- 
ested in the death, rather than the life of the insured." — May 
on Insurance, § 398. Tiiis view is fully supported i)y the au- 
thorities, which, being directly in point, we cite without any 
attempt to discuss them.— Missouri Valley Life Ins. Co. v. 
Sturges, 18 Ivans. 93 ; s. c, 23 Amer, Rep. 761 ; FranMin Fire 
Ins. Co. V. Ilazsard, 41 Ind. 116; s. c, 13 Amer. Rep. 313; 
Stevens ?•. Warren, 101 Mass 564; Wa?moGk v. Davis, 104 U. 
S. 775 ; May on Insur. § 398. 

A policy which is purchased for any specific sum can be con- 
sidered a wager policy^, under these principles, only for the 
excess of the amount realized on it by the purchaser over and 
above the purchase-money, with interest. To this extent, the 
holder has an insurable interest, and thus far a court of e(|uity 
will protect him. So far as concerns the surplus, the policy is 
just as mucli a contract of wager as if it covered only this par- 
ticular excess. In Warnook v. Davis, 104 U. S. 775, this 
principle was decided ; Mr. Justice Field observing, that " to 
the extent in which the assignee stipulates for the proceeds of 
the policy beyond the sums advanced by him, he stands in the 
position of one holding a wager policy." The assignment, he 
said, was '' only invalid as a transfer of the proceeds of the 
policy beyond what was required to refund those sums, with 
interest. To hold it valid for the whole proceeds, would be to 
sustain speculative risks in human life, and encourage the evils 
for which wager policies are condemned." The same rule had 
been previously announced in Cammaok v. Lewis, 15 Wall. 
643. It is also fully indorsed by the Supreme Court of Illinois 
in the case of Guardia7i Mutual Life Ins. Co. v. Ilogan, 80 
111. 35 ; s. c, 22 Amer. Rep. 180. 

It is immaterial, in this aspect of the law, whether the policy' 
of insurance on the life of Ilelmetag was assigned to Miller as 
collateral security for the amount admitted to be due, or whether 
it was assigned by absolute sale. The result is exactly the same 
in either case. Equity will regard it, in legal effect, as collat- 
eral security in the one case, as well as in the other. The facts 
stated in the bill entitled the complainant to relief under the 
general prayer ; and these facts are fully sustained by the 
proof. 

The chancellor erred in dismissing the bill ; and his decree 
is reversed, and the cause remanded. 

Vol. lxxvi. 



1884.] OF ALABAMA. 189 

[Hatoher v. Diggs.] 



Hatcher v. Diggs. 

Statutory Action in nature of Ejectment. 

1 . Relieving married women of disahililies of coverture ; decree con- 
strued, 118 to power to contract and mortgage. — Under the statute which 
confers upon tliesevenil chancellors jurisdiction " to relievo married wo- 
men of the disabilities of coverture as to their statutory and other sepa- 
rate estates, so far as to invest them wi!h the right to buy, sell, hold, 
convey and mortgage real and personal projjcrty, and to sue and be sued 
asfemmes aole " (Code, § 2731) ; a decree declaring that the petitioner, a 
married woman, " is relieved from the disabilities of coverture, so tar as 
to invest her with the right to buy, sell, hold and conveg real and per- 
sonal property, contract and be contracted ivith, sue and be sued as a 
femme sole," is void, so far as it confers a general power to " contract and 
1)6 contracted with ; " and it does not confer the specific pow'er to mort- 
gage her property. 

Appeal from tlie City Court of Selina. 

Tried before tlie Hon. Jona. Haralson. 

This action was brought by B. E. Diggs, against Thomas J, 
Hatcher and Julia E. Barnes, to recover the possession of a cer- 
tain tract of land in Dallas county, containing about 340 acres, 
with damages for its detention ; and was commenced on the 
2()th September, 1883. The cause was tried before the court, 
without the intervention of a jury, on issues joined on the plea 
of not guilty, and a suggestion of adverse possession for tnore 
than three years, and the erection of valuable improvements. 
The plaintiff claimed under a purchase at a sale under a power 
contained in a mortgage executed by George A. Beach and 
Mary C, his wife, to Woodruff & North as partners, which was 
dated the 22d March, 1878, and was given to secure the pay- 
ment of a promissory note for $800 ; which note was signed by 
said P>each and wife, was of even date with the mortgage, and 
payable on the 1st November after date. The said note not 
being paid at maturity, the mortgage was foreclosed by a sale 
under the power, on the 9th January, 1883 ; the plaintiff in this 
suit becoming the purchaser, and receivinor a conveyance from 
the mortgagees. The defendants claimed the premises under 
a conveyance to them l)y said Beach and wife, dated in Decem- 
ber, 1878 ; and the}' proved the payment of the purchase-money 
by them, their entry into possession under said purchase, and 
the erection of valuable and permanent improvements. 

The defendants having proved that the lands were conveyed 
to Mrs. I^each, by the register in chancery at Selma, as the pur- 



190 SUPREME COURT [Dec. Term, 

[Hatcher v. Diggs.] 

chaser at a sale made under a decree of the Chancery Court on 
December 6th, 1875 ; the plaintiif then offered in evidence, for 
the purpose of showing the validity of the mortgage under 
which he claimed, a petition filed by Mrs. Beacli, on the 18th 
December, 1876, asking to be relieved by the decree of the 
chancellor of the disabilities of coverture, and the chancellor's 
decree thereon, which was dated " at chambers, December 19th, 
1876," and in these words : " Mary C. Beach, M'ife of Geo. F. 
Beach, of Dallas county, having tiled her petition by her next 
friend, C. Cadie. Jr., praying to be relieved of the disabilities 
of coverture, as provided I)y the act approved April 15, 1873, 
and the act amendatory thereof, approved February 10th, 1875 ; 
and her said husband, George F. Beach, having filed his con- 
sent in writing ; it is ordered, adjudged and decreed, upon con- 
sideration thereof, that the said Mary C. Beach be, and she is 
hereby, relieved from the disabilities of coverture, so far as to 
invest her with the right to buy, sell, hold and convey real and 
personal property, contract and be contracted with, sue and be 
sued as a femme sole ' and it is further ordered," that her next 
friend pay the cost. 

This being all tiie evidence, the court held the mortgage 
valid, and rendered judgment against the defendants ; to which 
they duly excepted, and which they now assign as error. 

White & White, for appellant. 

W. R. Nelson, contra. 

CLOPTON, J.— The right of the plaintiff to recover the 
land in controversy depends upon the validity of the mortgage, 
executed March 22d, 1878, by Mrs. Beach and her husband, to 
Woodruff & North. The mortgage was given to secure a 
promissory note made by her and lier husband, and conveys the 
statutory separate estate of Mrs. Beach. The consideration of 
the note is not disclosed by the record ; but, whether it is her 
own debt, or the debt of her husband, her power to make a 
valid mortgage rests upon the force and effect of the decree 
made by the chancellor, upon her petition, removing her disa- 
bilities of coverture. 

The act of April 15th, 1873, as amended by the act of Feb- 
ruary 10th, 1875, which constitutes section 2731 of Code 1876, 
has received construction by this court. It is held to be a 
partial delegation to the chancellor, not to the Chancery Court, 
of the power theretofore reserved by the General Assembly, and 
is bounded by the express terms of the statute. It is the grant 
and the limitation of the chancellor's jurisdiction and power. 
It is said : " The power he can exercise, is the power conferred 

Vol. lxxvi. 



1.S84.] OF ALABAMA. 191 

[Hatcher v. Diggs.] 

by tlie statute — no greater or less power, wliatevcr may be the 
wislies or ])nrposes of suitors, or the real or seeming exigencies 
and necessities of particular cases." The intention was, not to 
confer on married women all the powers of a feiuinc note — not 
to constitute them free-dealers — but to relieve from the disa- 
bilities of covei'ture as to their statutory and other separate 
estates; and the relief, as to these, is limited by the statute. 
There can be no relief as to a part of the separate estate. 
Dreyfus v. Wollfe, 65 Ala. 496 ; Cohen v. Wollncr, 72 Ala. 
23:?; Ashfordv. Wntkiiis, 70 Ala. 156. 

The petition of Mrs. Beach avers the jurisdictional fact, that 
" she is possessed of a separate statutory estate, cotisisting of 
both real and personal property ;" and prays that a decree be 
made, "declaring her a. fe/nnie sole, so far as to authorize and 
empower her as such to buy, sell, hold and convey real and per- 
sonal property, contract and be contracted with, and generally 
to do and perform all acts which she could lawfully do if she 
^'Qve a. feinme soley The petition, which was tiled after the 
enactment of the amendatory act of February 10th, 1S75, seeks 
the exercise of a power with which the chancellor is not in- 
vested, and invokes relief that he is without authority to grant 
— that she be invested with all the powers of a femine sole. Its 
scope and purpose far exceed the prayer of the petition as 
prescribed by the statute ; which is, " that she be decreed, for 
the purposes aforesaid, to be declared a feiarne sole ; " the pur- 
poses aforesaid b^ing, " to invest them with the right to buy, 
sell, hold, convey and mortgage real and personal property, and 
to sue and be sued as femmes sole^'' as to their statutory and 
other separate estates. 

The chancellor, after reciting, that Mrs. Beach had " filed 
her petition praying to be relieved from the disabilities of cov- 
erture, as provided by the act approved April 15th, 1873, and 
the act amendatory thereof, approved February 10th, 1875," 
and the consent in writing of her husband, decrees, that she be 
and is relieved from the disabilities of coverture, " so far as to 
invest her with the right to buy, sell, hold and convey real and 
personal property, contract and be contracted with, sue and i)e 
sued as wfemme soleP The decree, in the respect that it invests 
Mrs. Beach with the right to contract and be contracted with, 
exceeds the power of the chancellor ; he had no jurisdiction 
over the subject-matter. — Authorities supra. It will not be 
seriously controverted, tliat, as to tiiis right, the decree is 
invalid and inoperative. A general capacity to contract, al- 
though relating to her separate estate, the statute does not au- 
thorize. The only contracts authorized are such as concern the 
buying, selling, holding, conveying and mortgaging real and 
personal property. 



192 SUPREME COURT [Dec. Term, 

[Hatcher v. Diggs.] 

As this provision of the decree, being inoperative, does not 
empower Mrs. Beach to make a valid mortgage, does the decree 
otherwise invest her with this right ? It will be observed, that 
the decree does not, in express terms, invest her witli the power 
to mortgage ; but it is insisted that the power to convey is 
broad enough to include the power to mortgage — upon the 
maxim, ormie major continet in se minus. It may be true, 
that a general power to convey, without any thing limiting or 
prescribing the mode, may be executed by any of the recognized 
modes of conveyance, consistent with the purposes of the power, 
and applicable to the kind of property that is the subject-mat- 
ter of conveyance. Where, however, the statutory words are em- 
ployed in the decree, the validity of which rests upon legisla- 
tive authorization, and its legal operation and effect depend 
upon the construction of the words, their construction, as used 
in the statute, will control their meaning and effect in the 
decrees ; the presumption being, that the chancellor did not in- 
tend they should have any greater force, or broader signification. 
Was it, then, the intent that the power to convey, authorized 
by the statute, shall contain the power to mortgage? 

For the purpose of relieving, in certain respects, the disa- 
bilities which the common law imposes upon married women, 
the act of April 15th, IST-'i, was enacted.— Acts 1872-3, p. 93. 
The several Chancery Courts were authorized and empowered 
to relieve all married women from the disabilities of coverture, 
so far as to invest them with the right to buj', sell, hold or con- 
vey real and personal property, and to sue and be sued a.s,fe>nm£s 
sole^ in two specified cases. This statute was conceived in the 
spirit and policy of protecting married women ; and in inter- 
preting it, it is significant,, that the power to mortgage is 
omitted ; when it was well known, that although the statute 
creating and regulating the separate estates of niarried women, 
authorized her to sell and convey, in the mode prescribed, her 
statutory separate estate, the judicial construction was, that she 
was not authorized to mortgage it for her own or her husband's 
debt. 

For sufficient reasons, this statute was considered impolitic — 
too broad in some respects, and too narrow in others ; and 
lience was amended in material matters by the act of February 
10th, 1875, under which the proceedings in the case of Mrs. 
Beach were had. — Acts 187-1-5, p. 194. The authority was 
taken from the Chancery Courts, and delegated to the chancel- 
lors ^ the relief to be granted was expressly restricted, ''as to 
their statutory and other separate estates;" and in addition to 
the capacities enumerated in the original act, the same words 
being employed in both acts, the authority to invest them with 

Vol. IvXXVi. 



1884.] OF ALABAMA. 193 

[Hatcher v. Diggs.J 

tlie right to mortgage was given in terms. Was this accidental, 
or from deliberation ? 

Where, in a statute, the legislative intent, the ascertainment 
of which is the primary, and, it may be said, the only purpose 
of construction, is expressed in words which, when taken in 
their general and ordinary import, are clear and unambiguous, 
there is no occasion for resort to other means of interpretation. 
Some effect must be allowed to every word, or phrase, and such 
interpretation adopted, if reasonable, that no word or phrase 
will be repugnant to any other provision, or be unnecessary 
and superfluous. Says Lord Coke: "The good expositor 
makes every sentence have its operation to suppress all the 
mischiefs ; he gives effect to every word in the statute ; he does 
not construe it so that any thing should be vain and superfluous, 
nor yet makes exposition against express words." A word or 
expression which has precedence in the order of use shall be 
taken to have reference to things of a greater or different 
meaning and effect. It will not be intended, that the legisla- 
ture used different words in the same sentence, in the same 
sense, and with no other or different effect. The presumption 
is, that the law-maker intended a difference. And especially 
is this true, where, in an amendatory act, the words of the 
original act are used, and in the same order, to express the 
same ideas, and immediately following, in the same sentence, 
another word is inserted, relating to the same subject-matter. 
Such word, thus inserted, must be taken to express a different 
idea, and to have a different operation. — Pot. Dwar. on Stats. 
188, 198. Whatever might have been the judicial construction 
of the act of April 15th, 1873, it is manifest that the legisla- 
tive intent in the enactment of the amending act of February 
10th, 1875, was, that each word used should express a different 
capacity, which the chancellors were authorized to enlarge, as 
to statutory and other separate estates. — Lehman, Durr c& Co. 
V. Robinson, 59 Ala. 219. 

Without statutory authority, the chancellor has no jurisdic- 
tion or power to relieve married women from any of the disa- 
bilities of coverture. The chancellor is the officer designated 
by law, who may grant the relief. A decree upon a proper 
petition is necessary ; and if the decree omits either of the 
rights authorized to be invested, such right is not invested, 
notwithstanding the statute authorizes it. 

Whether a decree, which invests a married woman with some 
only of the rights authorized by the statute, and invests her 
with others not authorized, is absolutely void, presents a grave 
question, which we need not decide ; for, conceding that the 
decree, construed in reference to its recitals and the petition, is 
valid so far as it goes, we are constrained to hold, that it does 
13 



194 SUPREME COURT [Bee. Term, 

[Leinkauff ct Strauss v. Miinter.] 

not empower Mrs. Beach to make a valid mortgage on her 
statutory separate estate. 
Judgment reversed, and cause remanded. 



LeinkauflF <& Strauss v, Munter. 

Contested Claim of Exemption to Personal Property. 

1. Execution against partnership and partners. — An execution issued 
on a judgment aganist A. and B., composing the firm of A. & B., may 
be levied on property belonging to the partnership, or to either of the 
partners individually. 

2. Estoppel by judgment. — An execution against A. and B., comiwsing 
the firm of A. & B., having been levied on a stock of merchandise, to 
which a statutory claim was interposed by the wife of one of the partners, 
a judgment against the claimant conclusively establisties that the prop- 
erty is not hers, and that it is subject to the lien of the execution ; but 
it does not decide whether the propertj^ belongs to the partnership, or to 
one of the partners individually ; and it does not estop the husband of 
the claimant from afterwards claiming it as exempt property belonging 
to himself. 

3. Estoppel by acts en j^ais. — Such partner is not estopped from assert- 
ing his individual claim of exemption, because he was active in the as- 
sertion of his wife's claim, whereby plaintiflTs were compelled to execute 
a bond of indemnity to the sheriff, and to engage in the trial of the 
claim suit; nor because he testified as a witness for her, on the trial of 
that suit, that the property belonged to her. 

Appeal from the Circuit Court of Montgomery. 

Tried before tlie Hon. John P. IIubhart). 

Tlie appellants in this case recovered a judgment in said 
Circuit Court, on the 13th June, 1879, against M. Munter & 
Brother, described as "a late partnership composed of Marcus 
Munter and Solomon Munter;" and an execution on tiiis 
judgment, which was issued on the 10th October, 1883, and 
commanded the sheriff to make the money out of " the goods 
and chattels, lands and tenements of Marcus Munter and Solo- 
mon Munter, composing the firm of M. Munter & Brother," 
was levied by him, on the 15th October, on a stock of goods 
in a storehouse in Montgomery. A claim to the stock of goods 
was thereupon interposed by Mrs. Bertha Munter, the wife of 
said Marcus Munter, and bond given for the trial of the right 
of property ; and an issue being then made up between the 
parties, the jury returned a verdict in these words: "We, the 
jury, find for the plaintiffs, and assess the value of the goods at 
$800 ; " on which verdict a judgment was rendered, on the 
12th January, 1884, "that the property so claimed be con- 

VOL. LXXVI. 



1884.] OF ALABAMA. 195 

[T^inkaufF<fe Strauss v. Munter.l 

deiDtied as liable for the satisfaction of plaintiffs' demand." 
On tiie 15th January, 1884, a claim of exemption to the stock 
of goods was Hied with the sheriff bv said Marcus Munter, al- 
leging that the goods belonged to him individually ; and this 
claim being contested by plaintiffs, an issue was thereupon 
made up between the parties, under the direction of the court, 
which, as stated in the judgment-entry, was, " whether the 
property in contest is exempt as claimed." 

()n the trial of this issue, as the bill of exceptions shows, 
the plaintiffs read in evidence the execution, with its levy, and 
then introduced as a witness W. Bellinger, the sheriff who 
made the levy, and who testified, " that when he received said 
execution, and went with it to the store in which the goods 
were kept, he there saw said Marcus Munter, and informed 
him that he held said execution against M. Munter & Brother; 
and that said Munter then told him that said goods did not be- 
long either to himself or to said firm, but was the property of 
Mrs. Bertha Munter, his wife. Plaintiffs then offered to prove 
by said Bellinger that, in conseijuence of the declaration and 
conduct of said Marcus Munter, he refused to levy cm said 
goods as the property of said defendants in execution, unless 
plaintiffs would give him a bond of indemnity, as provided by 
the statute, to save him harmless against damage by reason of 
said levy; that plaintiffs did thereupon execute to him such 
bond of indemnity, in order to induce him to levy said execu- 
tion on said stock of goods ; and that they were subjected to 
other trouble, inconvenience and expense incident thereto, 
which would have been avoided but for the declarations and 
conduct of said M. Munter in relation to said goods." The 
court excluded this evidence, on the claimant's objection, and 
the plaintiffs excepted. 

" rlaintiffs further proved by said Bellinger that, after he had 
levied said execution on said stock of goods, said Marcus Mun- 
ter requested him to prepare an affidavit for his wife (Mrs. 
Bertha Munter) to swear to, and also a claim bond for the trial 
of the right of property to said goods ; that he did so, and de- 
livered the same to said Munter, who returned them to him 
after they were signed ; and that he approved said claim bond, 
though he did not see either of the obligors sign the same. 
Plaintiffs then read in evidence said affidavit and bond," and 
also the claim and issue as made up in that suit, and the judg- 
ment therein rendered, as above stated. " Said Bellinger, being 
again introduced as a witness for tiie plaintiff, testified that he 
was present on the trial of said claim suit, and heard said 
Marcus AFunter examined as a witness for his wife ; and that 
said Munter then testified, ' that said stock of goods did not 
belong to himself, nor to said M. Munter & Brother, but be- 



196 SUPREME COURT [Dec. Term, 

[Leinkauff& Strauss v. Munter.] 

longed to his said wife ; that he liad received about $S00 from 
the administrator of the estate of one J. A. Abraliam, in con- 
sideration of her dower interest in certain lands which he (said 
Munter) had sold to said Abraham ; that he, as the husband of 
the said Bertha, had purchased a stock of goods with this 
money, and replenished said stock, from time to time, from 
the sales of said goods ; and that said store, in which said goods 
were kept, was conducted in the name of said Bertha Munter, 
and a sign having her name was over the door.' It was ad- 
mitted, also, that the goods here claimed as exempt were apart 
of the stock of goods which was in controversy in said claim 
suit. 

" This was all the evidence ; and the court thereupon charged 
the jury, on the request of the defendant, that they must find 
the issue in his favor, if they believed all the evidence. The 
plaintiffs excepted to this charge, and requested the court, in 
writing, to instruct the jury that, if they believed the evidence, 
they must find the issue in favor of the plaintiffs ; which cliarge 
the court refused to give, and the plaintiffs excepted to the re- 
fusal." 

The exclusion of the evidence offered, the charge given, 
and the refusal of the charge asked, are now assigned as 
error. 

Rice & Wiley,' for appellants. — (1.) The judgment on the 
trial of the claim suit adjudged the property to be liable to 
the plaintiffs' execution, and that judgment is conclusive in 
this case. — Clemens v. Clemens^ 37 N. Y. 59. An exemption 
can not be claimed by a partnership, nor can a partner claim an 
exemption in partnership property. — Giovanni v. First Nat. 
Banh, 51 Ala. 177. (2.) Even if the judgment is not con- 
clusive, the acts and conduct of the defendant at the time of 
the levy, and in connection with his wife's claim suit, amount 
to an estoppel en pais Against him. — Bigelow on Estoppel, 
478 ; Gill v. Denton, 71 N. C. 341 ; Randolph v. Little, 62 
Ala. 396 ; Dezell v. Odell, 3 Hill, 215. Ihe evidence was ad- 
missible to show that the claim suit was, in fact, instituted by 
M. Munter in his wife's name ; and if so, the judgment was 
conclusive on him. — Tarleton d& Pollard v. Johnson, 25 Ala. 
310. (3.) The general charge in favor of the defendant was 
an invasion of the province of the jurv. — Railroad Co. v. 
Williams, 52 Ala. 278 ; Davidson v. 'The State, 63 Ala. 435 ; 
1 Gall. 400; 2 How. U. S.496.; 24 How. 224. 

Sayre & Graves, apd Watts & Son, contra. — (1.) The 
judgment in the claim suit only decided that the property was 
subject to the execution ; and whether it belonged to the part- 

VOL . LXXVI, 



1884.] OF ALABAMA. 197 

[Leinkanff & Strauss v. Munter.] 

nersliip, or to either partner individually, it was equally liable. 
(2.) The plaintiffs were in no wise misled, to their prejudice, 
by any act or declaration of the defendant; and no estoppel 
can arise from his conduct. — llunley v. Ilunley^ 15 Ala. 91 ; 
Pound? V. Richards, 21 Ala. 424; Smith v. Mundy, 18 Ala. 
182. (3.) The defendant had the right to claim an exemption 
at any time before the property was sold under the execution. 
Daniels v. liainilton, 52 Ala. 105. (4.) On the contest of a 
claim of exemption, the plaintiffs are the actors, and the burden 
of proof is on them. — McCrary v. Chase tfe Co., 71 Ala. 540 ; 
Code, §§ 2831, 2836, 2838. (5.) The defendant introduced no 
evidence, and there was no conflict in the evidence introduced 
by the plaintiffs. 

STONE, C. J. — The merchandise in controversy was levied 
on under execution in favor of Leinkauff & Strauss, against M. 
Munter & Brother, composed of Marcus Munter and Solomon 
Munter. The mandate of the writ was, that the sum of the 
judgment should be made of the goods and chattels, lands and 
teneinents of the defendants ; and only property which be- 
longed to the firm, or to one of its members, could be seized 
under it. The levy itself was an admission and assertion by 
the plaintiffs, that the merchandise seized belonged either to 
the firm, or to one of the partners. That fact being the very 
foundation on which all the right they assert must rest, they 
can not be heard to gainsay it in this proceeding. 

An issue had been tried in a claim suit, in which Leinkauff 
& Strauss asserted the property was subject to their execution, 
and Mrs. Munter, wife of M. Munter, asserted the property 
was hers. That issue was determined in favor of the plaintiffs, 
and it was thus decided that Mrs. Munter did not o^vn the 
property. It was not, and could not be decided, in that suit, 
whether the property belonged to M. Munter & Bro., to Marcus 
Munter, or to Solomon Munter. Belonging to either of the 
partners, or to the partnership itself, it would be alike subject 
to the execution ; and hence no issue could be formed which 
raised that question. It would have been adjudged immaterial. 
The result of this principle is, that Leinkauff & Strauss can not 
deny, in this proceeding, that the merchandise was the property 
of the firm of M. Munter & Brother, or of one of the members, 
because such denial would be incompatible with the asserted 
right to have it sold under their execution. 

It is contended for appellants that Munter is estopped from 
asserting claim to the property in controversy, for the follow- 
ing reasons : When the sheriff was about to levy on the 
merchandise under the execution against M. Munter & Bro., 
he, Munter, informed the officer that the property did not be- 



IDS SUPREME COURT [De.-. Term, 

[Leinkauff & Strauss v. Munter.] 

long to M. Munter & Bro., nor to either member thereof ; but 
that it belonged to Mrs. Munter, iiis wife. Thereupon the 
sheriff required a bond of indemnity, which the plaintiffs gave, 
and the levy was then made. Mrs. Munter interposed her 
claim, gave bond, and a trial of the right of property was had, 
and the property vv'as adjudged subject to the execution. M. 
Munter was active in having this claim interposed, and testified 
on the trial that the property belonged to his wife. This con- 
duct of his, it is contended, made it necessary for the plaintiffs 
to give the indemnifying bond, and to incur the trouble aiid 
expense of the trial of the right of property ; and therefore 
lie should not be now heard to claim the property as his own. 
This would be a strange application of the doctrine of estoppel. 
The plaintiffs would entirely defeat their suit, by showing that 
the goods are the property of Mrs. Munter ; and they are pre- 
cluded bj the exigencies of their case from denying the owner- 
ship of the Munter Brothers, or one of them. And the argument 
is that Munter is estopped from asserting that the goods are his 
property. One estopped from denying the fundamental fact 
on which his claim rests; his adversary from asserting the truth 
of the same fundamental fact. The goods the pi'operty of 
Munter, for the purpose of making them liable for his debts, 
but not his property, to enable him to claim exemptions 
therein. 

But there is another and conclusive reason why the doctrine 
of estoppel en pais can not apply to this case. That doctrine 
rests on the stern purpose of the law, to maintain good faith 
between man and man. Its usual presentation is, when one 
person by his words, acts, conduct, or silence, induces another, 
on the faith thereof, to pledge his credit, incur a liability, or 
part with something valuq,ble. — 6 Wait Ac. & Def. 679. To 
come within the principle, the representation, whether spoken, 
acted, or implied from silence, must be credited as true, and 
the valuable thing must be parted with, the credit given, or 
liability incurred, as a consequence of such representation, and 
on confidence in its truth. It rests at last, for its vindication, 
on the manifest idea, that to allow such representation to be 
gainsaid, would be a fraud on him who had thus acted, believ- 
ing it to be true. In the present case, Munter's acts and 
declarations were neither credited nor acted on. On the con- 
trary, they were disbelieved, and every subsequent stej) was 
taken in disregard of them. The plaintiffs were not induced 
to act, nor deceived, nor defrauded by them. 

The testimony on this trial was simple. None of it tended 
in the slightest degree to show that the firm of M. Munter & 
Bro., or Solomon Munter, owned, or ever had owned any in- 
terest in the merchandise. An issue had been tried, whether 

Vol. lxxvi. 



1884.J OF ALABAMA. 199 

[Felrath v. Schonfield.] 

or not it was the property of Mrs. Miinter, and that issue had 
been determined against her-. All the testimony on the trial 
in this case tended to show it was the property of M. Mnnter, 
and no one else. The Circuit Court did not err in the charge 
given to the jury, nor in any other ruling brought to our 
notice. 
Affirmed. 

Clopton, J., not silting. 



Felrath v, Sclionfleld. 

Cre(iitor\'i BiU in Exjuity, to set ciside Fraudulent Conveyances 
hij Deceased Dehtot\ and subject Proceeds of Policies of 
Life Insurance. 

1. Life-insurance hi/ huKlnuid, fur henejil of irife. — The statute allow- 
ing a married woman k> insure the life of her husband for her benefit, 
free from the claims of his creditors, provided that not more than $500 
shall be {)aid out of the husband's funds in annual premiums (Code, 
§ 2733), is in the nature of an exemption law, and is to be liberally con- 
strued to effect its jjurpose and policy ; and whether the insurance is 
taken out by the wife herself, with moneys furnished by the husband, or 
by the husband himself without the agency or knowledge of the wife, it 
is within the protection of the statute, and can not be reached by his 
creditors, unless the annual premiums paid exceed $500. 

Appeal from the Chancery Court of Mobile. 

Heard before the Hon. John A. Foster. 

The original bill in this case was filed on the 8th December, 
1883, by Joseph Felrath, as a creditor of Siegmund Vogel, 
deceased, against Mrs. Henrietta Vogel, his widow, Mrs. Caro- 
line Sehontield (who was the mother of Mrs. Vogel), Henry 
Bernstein (who was the brother of Mrs. Schonfield), the Mobile 
Life Insurance Company, and several other corporations in the 
nature of insurance associations. Its object and purpose was, 
to set aside two conveyances of property, wliich had been exe- 
cuted by said S. Vogel to Mrs. Sciionfield and said Bernstein, 
on the ground that they were given and accepted with the 
intention, on the part of both the grantor and the grantees, to 
hinder, delay and defraud the complainant and other creditors 
in the collection of their debts, and to subject the property to 
the satisfaction of said del)ts ; and, also, to reach and subject, 
in the hands of the several defendant insurance compapies, the 
amounts due on policies of insurance, which the said Vogel 



200 SUPREME COURT [Dec. Term, 

[Felrath v. Schonfield.J 

had effected on his own Kfe, for the benefit of his wife, on the 
ground that they were fraudulent, in fact and in law, as against 
his creditors. 

The complainant's debt was evidenced by three promissory 
notes, which were given for borrowed money, dated September 
26th, October 15th, and November 5th, 1883, respectively, and 
aggregating $4,300 ; which notes purported to be indorsed by 
said Bernstein and Mrs. Schonfield, but, as the bill alleged, they 
denied their liability, and insisted tliat their indorsements were 
forged. The bill alleged, also, that at the time these notes were 
given, and for a series of years before, said Vogel was hope- 
lessly insolvent, but was apparently engaged in carrying on a 
prosperous business as a merchant in Mobile, obtaining money 
and goods, from time to time, with the connivance and assist- 
ance of said Bernstein and Mrs. Schonfield, by repeated 
forgeries and false pretenses ; that he died by suicide, in De- 
cember, 1883, leaving a last will and testament, of which his 
widow was appointed the executrix, but which had not been 
admitted to probate when the bill was filed ; and that his estate 
was hopelessly insolvent. 

As the case is here presented, it is only necessary to state the 
allegations of the bill as to the policies of insurance, which 
were in these words: "Your orator further showeth, that said 
S. Vogel was largely in debt in April and May, 1874, and has 
continued in debt ever since; that with the actual intent of 
hindering, delaying and defrauding his creditors out of the 
means that he had, and intending to leave his wife rich in the 
event of his death, and to leave his creditors without any 
means whatever from which to collect their debts, he insured 
his life, in large sums, for the benefit of his wife, said Henrietta 
Yogel ; that in this way, and with this intent, on the 29th May, 
1874, he took out a policy on his own life, for $5,000, in the 
Mobile Life Insurance Company, and paid thereon an annual 
premium of $168.50, until May 29th, 1880, when he surren- 
dered said policy, and took a paid-up policy in said company 
for the sum of $3,000, payable to his said wife. In the same 
way, and with the same intent and purpose, said S. Vogel ob- 
tained a policy of insurance on his life, for $5,000, in the Man- 
hattan Life Insurance Company, and paid thereon large sums 
for a long time as annual premiums, but what exact amount 
your orator is not informed, and can not state ; and said policy 
was likewise converted into a paid-up policy for the benefit of 
tlie said Henrietta Vogel, but your orator is not informed as 
to the amount or date of said paid-up policy. With a Hke 
purpose and intent, said S. Vogel joined and became a member 
of several incorporate orders, in which a mutual insurance of 
the lives of the members is maint^iined, and in which each 

Vol. lxxvi. 



1884.] OF ALABAMA. • 201 

[Felrath v. Schonfield.] 

member is assessed to pay tlie insurance upon tlie lives of each 
of the members who dies during his membership; and said 
Voffcl, as a member of said several orders, paid out large sums, 
as dues and assessments, the exact amount of which is unknown 
to your orator. The said orders are the following : The 
Knights of Honor, in which the insurance due on his life is 
$2,000; me Knights of Pythias, \n which the insurance due 
is supposed to be $2,000 ; the American Legion of Honor, in 
which the insurance is supposed to $3,000 ; the Knights of 
Honor Mutual Aid Associckion, in which the insurance due is 
supposed to be $5,000; and the Independent Order of B'nai 
Brith, in which the insurance due is supposed to be $2,000. 
All of said insurance was made payable to said Henrietta 
Vogel, the wife of said S. Vogel, though the premiums, dues, 
ifec, were paid by said S. Vogel out of his own means, and 
while he was entirely insolvent, and with the intent to hinder, 
delay and defraud your orator and his other creditors. And 
your orator shows that, while said S. Vogel probably committed 
suicide, and several of said corporations ought not to be liable 
for the amount his life was insured for, tlie fact that he did 
commit suicide can never be sufficiently proved to enable said 
companies to defend against the same ; and if said money is 
not condemned to the payment of your orator's debt, it will 
have to be paid to the said fraudulent grantees as aforesaid." 
The prayer of the bill, as to the policies of insurance, was, 
"that the said several sums, due as insurance upon the life of 
said S. Vogel, by the respective corporations made defendants 
hereto, may be condemned, and ordered to be paid to your 
orator on his said debt;" and for other and further relief, under 
the general prayer. 

A. demurrer to the bill was filed by Mrs. Henrietta Vogel, 
in which the following (with other) grounds of demurrer were 
specially assigned: (5.) ''Because said bill does not show or 
charge that this respondent, by herself, or by any third person, 
caused said insurance, or any of it, to be issued on the life of 
her said husband, or that he ever paid over $500 as premiums 
thereon." (6.) '' Because said bill does not allege that more 
than $500 had been paid out annually by said S. Vogel, as 
premiums on policies of insurance issued on his life for the 
benefit of his said wife, this respondent." The chancellor 
overruled the demurrer, on all the grounds specifically assigned ; 
but, afterwards, on motion of "the several defendant insurance 
companies," dismissed the bill as against them. From this 
decree the complainant now appeals, and here assigns as error 
the dismissal of his bill as against the several insurance com- 
panics; and by consent indorsed on the transcript, there is a 
cross-assignment of errors in the name of " Caroline Schonfield 



202 SUPREME COURT [Dec. Term, 

[Felrath v. Schonfield.] 

et al.y'' based on the decree overruling tlie demurrer to the bill 
on the 5th and 6th grounds specifically assigned by Mrs. Vogel. 

J. L. *& G. L. Smith, for appellant. (No briefs on file.) 

R. II. Clakki^^ and Overall & Bestok, contra. 

SOMERVILLE, J.— The bill is filed by the appellant, Fel- 
rath, as a creditor of one Vogel, to reach the proceeds of certain 
])olicies of insurance taken out by him on his own life, and paya- 
ble to his wife as beneficiary. The theory of the suit is, tliat 
the investment by the deceased husband was a fraud on the ap- 
pellant and otlicr creditors. 

The main inquiry, upon which the case depends, is, as to 
whether these policies can be j)roperly construed to come within 
the inriuonce of section 2733 of the present Code. This section 
declares, that " any married woman, by herself and in her name, 
or in the nairie of an}' third person with his assent as her trus- 
tee, may cause to be insured, for her sole use, the life of her 
husband ; " and that the proceeds of the policy, or policies, shall 
be payable to her, if she survives him, to her own use, free from 
the claims of creditors of the husband. The amount of premiums 
allowed to be invested in this manner, however, from the moneys 
of the liusband, is not permitted to exceed the sum of five hun- 
dred dollars annually. 

The facts, as admitted, show that the policies were obtained 
at the instance of the husband, and that the wife hnd no agency 
in procuring them ; and it is insisted that, for this reason, they 
do not come within the statute. This construction of the statute 
is, in our opinion, entirely too narrow and rigid. The policy 
of such legislation finds its origin in the duty of maintenance 
and protection which every husband owes to his family, and 
the importance to the State that as few widows and orphans as 
possible should be cast as paupers upon the public charity. 
Continental Life Ins. Co. v. Webb, 54 Ala. 68S ; /Stone v. 
Knickerbocker Life Ins. Co., 52 Ala. 589. In Fe-arn v. Ward, 
65 Ala. 33, we said, that this statute was " in the nature of a law 
exempting property from liability to execution." It has been 
uniformly held in this State, that exemption laws are to be lib- 
erally construed ; and the application of this principle forbids 
the strict construction contended for by the counsel of the ap- 

Sellant. A similar statute prevails in the State of Illinois and 
[issouri, each, like our own, being copied substantially from 
the New York statute of 1840. So far as affects the question 
l)efore us, the phraseology of these various laws seems to be 
essentially the same. The courts of these States have held, that 
the statute is remedial in its character ; that it is founded on 



1884.] OF ALABAMA. 203 

[Felratli v. Si-lionfield. 1 

charity, and intended to subserve a beneficent purpose ; atid tliat 
it is in the nature of, though not strictly, an exemption law ; 
and, for these several reasons, that it should be lil)erally con- 
Btrned to effect the legislative policy contemplated in its pas- 
sage. — Cole V. Marple, 98 111. 58 ; Charter Oak Life Ins. Co. 
V. Brant, 47 Mo. 419 ; B rummer v. Cohn, 86 N. Y. 11. 

We do not think it was ever contemplated that a policy of 
insurance should have been taken out by the wife exclusively, 
or through her agency, in order to receive the protection of the 
statute. Under the rules of the common law, the wife was dis- 
abled to make, or cause to be made, a contract of this nature ; 
and even to any contract made i)y a third person, for the benefit 
of the wife, the assent of the husband was required. — 1 Pars. 
Contr. (Oth Ed.) 309. The statute must be construed, therefore, 
to be en'al)ling in its purposes, designed to remove from the wife 
the shackles of coverture iniposed by the common law, which 
served to paralyze her independent authority to contract — so far, 
at least, as this particular subject-matter is concerned. When the 
husband undertakes to procure for her a policy of insurance on 
his own life, in accordance with its provisions, he acts for her, 
as her self-constituted agent ; and in as much as he is conferring 
a benefit upon her, in the nature of a gift, her a(;ceptance of it 
will be presumed, especially in view of her subsequent assertion 
of claim to it. The creditors of the husband are no more in- 
jured where the husband acts for the wife, than where the wife 
acts for herself. The injury, if any, lies in the a|)propriation 
of the husbalid's money to the use of the family. It would be 
a narrow view of the law to say, that it authorizes the husband 
to hand over money for premiums to the wife, and that she 
could lawfully take out the policy, but that, if he should take 
the same money, and procure the issue of the policy for her 
use, a!id in her name, it would be vitiated by reason of her 
ignorance of, or want of agency in the negotiation. There can 
be no more fraud against creditors in the one case than in the 
other. 

The policies, in our judgment, are within the equity and 
spirit of the statute, if not strictly within its letter, and were 
issued in substantial compliance with the provisions of the 
statute. Beneficial statutes, especially when enabling or reme- 
dial in their nature, have always been expounded by what is 
called an equitable construction — so as to be either enlarged or 
restrained in their letter ultra the strict letter, but not, as well 
said, contra the letter.— Potter's Dwar. Stat. 230, 237. 

In construing this statute in Fearn v. Ward, supra, it was 
not necessary for the purposes of that case that we should go to 
this extent. 

Unless the husband is shown to have invested more than the 



204 SUPREME COURT [Dec. Term, 

[Guilmartin v. Wood.l 

sum of five hundred dollars annually in premiums on the 
policies, no part of the proceeds conld be reached, by creditors. 
Fearnv. Ward, 65 Ala. 33; Code, 1876, § 2733.' This fact 
the bill fails tu allege, and the chancellor erred in not sustain- 
ing the demurrer based on this ground. The cause must be 
reversed, for this reason, and remanded on the cross-appeal 
taken by Caroline Schonfield and others. The decree dismiss- 
ing the bill for want of equity, however, as to the several de- 
fendant insurance companies on the main appeal taken by the 
complainant, Felrath, is without error. 
Reversed and remanded. 



Guilmartin v. W^ood. 
Guilmartin v. Clark. 

Statutory Actions in nature of Ejectment. 

1. Parol evidence ; admissibility in aid. of writing. — In the construc- 
tion of written instruments, the general rule exchides any direct evi- 
dence of the intention of the parties, except such as is furnished by the 
writing itself, when considered in the light of the surrounding facts 
and circumstances ; and while parol evidence is admissible to explain an 
ambiguity which is not apparent on the face of the writing, or to point 
out and connect the writing with the subject-matter, and to identify the 
object proposed to be described, such oral evidence must not be incon- 
sistent with the writing itself. 

2. Same; descriiitio a of premises in conveyance. — In the construction 
of a conveyance, an ambiguity in the description of the premises 
may be explained by parol evidence ; and where the description is by 
metes and bounds, evidence of the situation and locality of the premises, 
and of their identity, according to the description in the conveyance, is 
admissible ; but parol evidence can not be received to show a mistake in 
the description of the premises, or to alter or vary the boundary as speci- 
fied, or to establish another and different boundary for that expressed in 
the deed. 

3. Same ; same. — When the premises conveyed are described as 
being situated on a specified street or road, parol evidence would be ad- 
missible to show on which side of the street or road they lie ; but, when 
they are described as bounded (m the east by the street, parol evidence 
can not be received, at law, to show that the street is in fact the western 
boundary; unless it shows a change in the location of the street since 
the execution of the deed, whereby the street has become the western 
instead of the eastern boundary. 

4. Description of premises in conveyance. — Where the premises con- 
veyed are described by definite metes and bounds, from which the 
boundaries can be readily ascertained, such description must prevail 
over any general words of description also added. 

5. Presumption in favor of judgment. — To justify a reversal, the record 
Vol. lxxvi. 



1884.] OF ALABAMA. 205 

[Guilmartin v. Wood.] 

must affirmatively show error, else the presumption of correctness will 
be indulged in favor of the judgment. 

6. When defendant may show outstanding title. — In ejectment, or the 
statutory action in nature of ejectment, if the defendant entered under 
the plaintiH", or if he is a mere trespasser on the plaintiff's i)rior posses- 
sion, he can not defeat a recovery by showing an outstanding title in a 
third person; but, in all other cases, his possession will defeat a recov- 
ery by any other person than the true owner, and he niay show the out- 
standing title of the true owner. 

Appeals from tlie Circuit Court of Pil<e. 

Tried before the Hon. Jno. P. IIuhhakd. 

These two cases, involving substantially the same facts, were 
argued and submitted together; each being a statutory action 
in the nature of ejectment, commenced on the 15th December, 
1882, by Mrs. Minnie Guilmartin, a married woman. The de- 
fendant in one case was John H. Wood, and in the other James 
A. Clark and wife, tenants in possession. In the first case, the 
premises sued for were described in the complaint as a lot in 
tiie city of Troy, "situated on the west side of North Three- 
notch street, bounded on the north by Orion street, on the west 
by lot of J. C. Jolly, soutli by lot where Wallace Nail now re- 
sides, and east by said North Three-notch street;" and in the 
other, as a lot in said city, "bounded on the north by lot upon 
which Wallace Nail now resides, on west by lot of J, C. Jolly, 
on south by lot of Lowndes Hendricks, and on east by North 
Three-notch street." The plaintiff claimed the property as the 
sole heir at law of her deceased father, Beasant Holly, who 
died on the 12th January, 1863 ; and the defendants were in 
possession, in each case, claiming under the heirs of H. S. Ur- 
quhart, who were made parties defendant. 

In the case against Wood, as the bill of exceptions states, 
" the evidence on the part of the plaintiff showed that she was 
the only heir of Beasant Holly, deceased, who died in the year 
1863; that said Holly resided on said lot, from the year 1860, 
or 1861, up to the time of his death, claiming it as his own, 
having built a dwelling-house on it, and exercised other acts of 
ownership during said time; that said lot is on the west side of 
Three-notch street, and south of Orion street, and in the corner 
made by the intersection of the two streets ; and that the rent 
is worth $125 per year. Plaintiff having rested, defendants 
introduced, in connection with the deed from plaintiff and her 
husband to H. S. Urquhart, evidence tending to show that the 
lot sued for was known as the Beasant Holly lot ; to which 
evidence plaintiff excepted, after objection was made by 
plaintiff. The defense then introduced, against the objection 
of plaintiff, the said deed from plaintiff and her husband to 
said Urquhart;" which was in form a qiiit-claim, was without 
date, and purported to be attested by K. C. King and W, E. 



206 SUPEEME COUKT [Dec. Term, 

[Guilmartin v. "Wood.] 

Ilancliey as witnesses, the date "Octo. 24th, 1882,'' bein^ 
written above their names. Tlie premises thereby conveyed 
were thus described : "The following real estate, situated in 
the city of Troy, in said State and county, to-wit : on street 
leading in the direction of Union Springs, known as the Beasant 
Holly lot^ bounded on the north and west by a vacant lot of 
Ira Hobdy, on the icest by street leading to Union Springs, on 
south by lot of said H. S. Urquhart." The plaintiff's objec- 
tions to the admission of this deed as evidence, as specified in 
the bill of exceptions, M^ere : " 1st, because said deed was with- 
out consideration, and was not made upon a sale of said prop- 
erty, she being a married woman at the time of its execution ; 
and, 2d, because said deed does not convey the property sued 
for." In support of her first objection, the plaintiff proved 
by said Hanchey, one of the subscribing witnesses, the circum- 
stances attending the execution of the deed, which it is unne- 
cessary to state ; and in support of her second objection, she 
adduced evidence showing that the description of the premises 
sued for, as given in the complaint, was an accurate description 
of them at the time of the execution of the deed ; while the 
defendant introduced evidence, which was admitted against the 
objection of the plaintiff, "that the lot sued for was known as 
the Beasant Holly lot^ and that there was no other lot known 
to the witnesses by that name.,' The court overruled the ob- 
jections, and admitted the deed ; and the plaintiff excepted. 

The plaintiff further insisted, against the validity of this 
deed, that she was not twenty-one years of age when it was 
executed ; and the evidence introduced by each party, as to the 
exact day on which the deed was executed, was contradictory. 

The defendant offered in evidence a patent from the United 
States to one John Caskrey, for the forty acres of land which 
embraced the premises sued for, dated March 15th, 1837, and 
mesne conveyances, from said Caskrey to W. J. McBryde, and 
from said Mcliryde to Irallobdy; the latter conveyance being 
dated February 23d, 1856. These several conveyances were 
admitted in evidence by the court, against the plaintiff's objec- 
tions, and she duly reserved exceptions to their admissioTi. 
" Evidence was introduced, in connection with said deed, tend- 
ing to prove that said Ilobdy went into possession under it, and 
was in possession when said Holly went into possession. The 
defendant introduced in evidence, also, a deed from plaintiff's 
mother, the widow of said B. Holly, to Robert Baugh, executed 
in 1864: (or 1865), conveying her interest in said lot; and a deed 
from said Baugh to II. S. IJrquhart, dated January 19th, 1867, 
in which the premises conveyed were thus described : ' A cer- 
tain improved lot in the town of Troy, containing two acres, 
more or less, lying west of the street leading in the direction 

Vol. lxxvi. 



1884.] OF ALABAMA. 207 

[Guilmartin v. Wood.] 

of ITiiioii Si)rin<ijs, known as the Beasavt UoJhj lot., homulcd 
north and west by a vacant lot of Ira IJobdy, on tlie west by 
street leading to Union Springs, on the south by a lot of said 
II. S. Urquhart.' The defendant introduced evitlence, also, 
that said llr(|uhart went into possession of said lot, under said 
deed, in 1867, and held and improved it, claiming it as his own, 
by himself and his tenants, ever since. Evidence was intro- 
duced, also, tending to show that Orion street had been estab- 
lished after the deed from said Baugh [was executed], and that 
said original lot, known as the Beasant Holly lot., had been sub- 
divided after the execution of said Ikugh's deed to Unjuhart, 
but before the execution of plaintiff's deed to said Ur(pihart; 
and that when said ITrquhart received the deed from plaintiff, 
he was in possession, and had been holding adversely to 
plaintiff." 

On this evidence, the plaintiff asked the court to charge the 
jury — Ist, " that the plaintiff's right to recover in this case can 
not be defeated by any outstanding title in Ilobdy or any one 
else ;" 2d, " that the jury will find for the plaintiff, unless they 
find from the evidence that she was twenty-one years of age 
when her deed to Urquhart was signed and delivered ;" 3d, 
"that if the evidence is equally balanced, as to whether said 
deed to ITrquhart was delivered before or after plaintiff at- 
tained her majority, then the jury will find for the plaintiff on 
that point." The court refused each of these cliarges, and the 
plaintiff duly excepted to their refusal ; and she also excepted 
to several charges given by the court at the instance of the 
defendant, among which were the following: "9. If the de- 
fendants' ancestor was in possession, under color of title, hold- 
ing in good faith, he was not a mere trespasser." " 11. If the 
jury believe, from the evidence, that Ur(|uhart went into pos- 
session of said lands under a deed from a party who was at the 
time in possession under color of title, then Urquhart was not 
a trespasser." 

In the case against Clark and wife., as tlie bill of exceptions 
shows, " the plaintiff's testimony tended to show that the title 
to the property sued for was in her, and that it was a part of 
her statutory separate estate ; that said property was a part of 
a lot in the city of Troy, which was bounded on the north by 
Orion street, on the east by Three-notch street, on the south by 
a lot formerly owned by II. S. Urquhart, deceased, and west 
by a residence lot of J. C. Jolly. The defendants offered in 
evidence a deed signed by plaintiff and her husband, to II. S. 
Urquhart, defendants' vendor, as follows," setting out the same 
deed above referred to. "Parol evidence was admitted, tend- 
ing to identify the lot in said deed with the one sued for; to 
which plaintiff reserved exceptions. Plaintiff objected to the 



208 SUPREME COURT [Dec. Term, 

[Guilraartin v. Wood.] 

introduction of said deed as evidence ; which objection the 
court overruled, and the plaintiff excepted." After stating the 
other evidence in the case, substantially as in the former case, 
the bill of exceptions further states, that the evidence showed 
that plaintiff and her mother removed from the lot in 1861, or 
1862, soon after said Holly went into the army, and that neither 
of them was ever afterwards in actual possession ; and it then 
adds: " Urqnhart and his tenants sought to defeat plaintiff's 
recovery, by showing that there was an outstanding title in the 
heirs of said Hobdy, who was dead, and offered evidence as to 
that. Plaintiff's contention was, that Ilobdy's title was barred 
by Urqu hart's adverse holding, and therefore could not be used 
to defeat her ; and she contended that she could avoid and de- 
feat her deed in a court of law, because the property was her 
statutory estate, the consideration was only nominal, and was 
in fact never intended to be paid. There was no pretense that 
any fraud had been actually practiced on her by any one pro- 
curing the deed, or that it was given in payment of the husband's 
debt, or to secure his debt. Tliere was evidence, also, as to 
the boundaries of the Holly lot; it being insisted that no part 
of the lot sued for was a part of the Holly lot, but that the lot 
sued for was an adjoining lot, plaintiff claiming only about 
twenty-six (26) feet as a part of said original Holly lot. The 
court thereupon charged the jury, that the deed of plaintiff and 
her husband estopped her from recovering the property sued 
for, if she was over the age of twenty-one years at the time she 
signed said deed, unless the grantee or his agent practiced a 
fraud upon her, by which she was induced to sign the same." 
To this charge the plaintiff excepted, as also to the refusal 
of several charges asked by her, which it is unnecessary to 
state. 

In each case, the several rulings of the court on the evi- 
dence, the charges given, and the refusal of the charges asked, 
were assigned as error. 

Gartiner & Wiley, for appellant, cited Sinims v. Kelly, TO 
Ala. 429; 1 Greenl. Ev. § 301, note 4; Hartt v. Rector, 13 
Mo. 497 (53 Amer. Dec. 157) ; Hughes v. Wilkinson, 35 Ala. 
453; Gantt v. Cowan, 27 Ala. 582; Adams on Ejectment, 32, 
notes; 4 Greenl. Cruise, tit. 32, ch. 21, sec. 31; Jackson v. 
Hudson, 3 John. 375 ; 4 Dana, 562 ; Whitesides v. Jackson, 1 
Wendell. 

N. W. Griffin, contra, cited Chamhers v. liingstaf', 69 Ala.. 
140; WiUiams v. Higgins, 69 Ala. 517; King v. Stevens, 18 
Ala. 475 ; Wilson v. Glenn, 68 Ala. 383 ; 4 Ala. 300. 

Vol. i-xxvi. 



1884.] OF ALABAMA. 209 

iGuilmartin v. Wood.] 

CLOPTON, J. — In the construction of written instruments, 
the general rule excludes any direct evidence of the intention 
of the parties, except such as is furnished by the writing itself, 
when considered in the light of the surrounding facts and cir- 
cumstances. Parol evidence is admissible, to exphiin an ambi- 
guity that does not appear on the face of the writing, but 
arises from some extrinsic, collateral matter — to point out, and 
connect the writing with the subject-matter, and to identify 
the object proposed to be described. "Such evidence is re- 
ceived, not for the purpose of importing into the writing an 
intention not expressed therein, but simply with the view of 
elucidating the meaning of the words employed ; and in its 
admission, the line which separates evidence which aids the 
interpretation of what is in the instrument, from direct evi- 
dence of intention independent of the instrument, must be 
kept steadily in view ; the duty of the court being, to declare 
the meaning of what is written in the instrument, not of what 
was intended to be written." — Hughes v. Wilkinson^ 35 Ala. 
453. The oral evidence must not be inconsistent with the 
writing. 

In construing a deed, an ambiguity in the description of the 
premises conveyed may be explained by parol evidence; and 
where the description is by metes and bounds, evidence of the 
situation and locality of the premises, and of their identity, 
according to the description in the conveyance, is admissible. 
But such evidence is not admissible to sliow a mistake in the 
description, or to alter or vary the boundary, or to substitute 
another and different boundary for the one expressed in the 
conveyance. 

The defendants, for the purpose of showing that the plaintiff 
had conveyed the land sued for to Urquhart, offered a deed 
executed by her and her husband. In the deed, tlie premises 
conveyed are described as situate "on street leading in the 
direction of Union Springs, known as the Beasant Holly lot^"* 
bounded on the north, west and south by the lands of co-ter- 
minous proprietors, and "on the loest by street leading in the 
direction of Union Springs." The premises sued for are situate 
on the west side of North Three-notch street, and bounded on 
the east by said street. It is conceded^ that the "street leading 
in the direction of Union Springs" is the North Three-notch 
street. From these descriptions, the premises sued for are on 
the voest^ and the premises conveyed by the deed are on the 
east side of Three-notch street. 

It may be conceded, that this part of the description is a 
mistake of the draughtsman of the deed. If so, a court of law 
is without power to reform it ; and without having been re- 
formed by a court having jurisdiction, it is inoperative to pass 
14 



210 SUPKEME COURT [Bee. Term, 

[Guilmartin v. Wood.] 

the legal title to land situate on tlie west side of the street. 
Humes V. Bernstein, 72 Ala. 546, 555. The deed having been 
offered as a muniment of title, the admission of evidence 
aliunde, to show sucli mistake, is to ascertain and declare what 
was intended to be written, and not the memiing of what is 
written, in the conveyance. 

If the description had stopped with the general words, 
''situate in the city of Troy, and said State and county, to-wit, 
on street leading in the direction of Union Springs, known as 
the Beasant Holly lot,^^ witliout giving a specific description 
of the boundaries, parol evidence may have been admissible to 
show the definite location of the ^'■Beasant Holly lot,''' and to 
identify it with the land in controversy. — Baueum v. George, 
55 Ala. 259. But general words can not overide a particular 
description. It is a principle long and well settled, that where 
a conveyance describes the premises by clear and definite metes 
and bounds, from which the boundaries can be readily ascer- 
tained, such description shall prevail, and determine the boun- 
daries and location, over general words of description. — McCoy 
V. Gallaway, 3 Ohio, 283 ; Spiller v. Scrihner, 36 Y t. 247 ; 
Frost V. Spaulding, 19 Pick. 445 ; 3 Wash, on Real Prop. 424. 
The presumption is, the grantor intended to convey the land 
thus particularly and clearly designated. This presumption 
may be rebutted in a court of equity, but is conclusive in a 
court of law. Any general words of description, and courses 
and distances, although expressed, yield to a description by 
marked trees, by water-courses, mountains, or other natural 
objects, or by a street permanently located and well defined. 
Mclmr V. Walker. 9 Cr. 173 ; Clements v. Pearce, 63 Ala. 284. 

In the case against Wood, the rulings on the admissibility of 
the deed, and the parol evidence in connection with it, and the 
charges in respect thereto, are in conflict with tliese rules. 

In the case against Clark, however, the bill of exceptions 
recites, that "parol evidence was admitted, tending to identify 
the lot in said deed with the one sued for." The evidence 
thus admitted is not set out. The party alleging error, must 
show it affirmatively. It is not sufficient to authorize a reversal, 
that this court can not ascertain from the record that the pri- 
mary court acted correctly. The error must clearly appear, or 
the presumption of correctness will support the judgment. If 
any parol evidence is admissible for the purpose of identifying 
the land conveyed with the land sued for, we can not reverse. 
Evidence, not inconsistent with what is written in the deed, is 
admissible for this purpose — such as, of a change, since the 
execution of the deed, of tiie location of the street from the 
west to the east side of the lot. 
But the court instructed the jury, that the deed of plaintiff 
Vol. lxxvi, 



1884.] OF ALABAMA. 211 

fGuilmartin v. Wood.] 

to Urquhart estopped her from recovering the property, if slie 
was over twenty-one years of age at the time she signed it, and 
was not induced to sign it by the fraud of the grantee or his 
agent. This cliarge is based upon tlie assumption and ascer- 
tainment, hy the courts that the deed, without the aid of any 
evidence aliunde^ identified the premises conveyed with the 
premises in controversy. This instruction is inconsistent with 
the views we have expressed. As we have above said, the deed, 
upon its face, did not pass the legal title to the land mentioned 
in the complaint. • 

If a defendant enters into possession under the plaintiff, or 
by his permission, or is an intruder upon the possession of the 
plaintiff, having no claim or color of title, he is estopped from 
setting up, in an action of ejectment, an outstanding title. In 
all other cases, he may destroy the plaintiff's right to recover, 
by showing an outstanding title, with which he in no way con- 
nects himself; his possession being good against all others, ex- 
cept the true owner. — Wihon v. Glenn, 68 Ala. 383 ; Tyler on 
Ejectment and Ad. Poss. 564. 

It appears that Ira Ilobdy, who derived title from the 
patentee by successive intermediate conveyances, was in pos- 
session of the premises at the time Holly, who was the father 
of plaintiff, and from whom she claimed title as his only heir, 
went into possession. It does not appear that Holly had any 
title, or claim of title, and no account is given of the manner 
in which he acquired possession. In such case, the possession 
is referred to the title, and the presumption is, that he held in 
recognition of, and in subserviency to the true title. — Dothard 
V. Denson, 72 Ala. 541. 

Urquhart went into posession in 1867, under a deed from 
Robert Baugh, to whom the widow of Holly (and the mother 
of the plaintiff) had conveyed the premises in 1864, or 1865, 
improving the lot, and claiming and holding possession, by 
himself and tenants, to the commencement of the suit. He 
was in possession under a claim, if not color of title. Taking 
and iiolding possession under this claiin of right, Urquhart was 
not a nure trespasser^ and the defendants, holding under him, 
may defeat the plaintiff's action [)y showing a paramount legal 
title in a stranger. — Snedecor v. Freeman, 71 Ala. 140. 

There is no question of adverse possession, or estoppel, raised 
upon the facts stated in the record. 

For the errors mentioned, the judgment in each case is re- 
versed, and the cause remanded. 



212 SUPKEME COURT [Bee. Term, 

[Kemp V. Lyon.] 



Kemp V. Lyon. 

Petition for Writ of Assistance, hy Purchaser at Register'' s 

Sale. 

1. Amendment of decree nunc pro tunc. — A decree in chancery can 
not be amended, nunc pro tunc, at a subsequent term, except upon evi- 
dence which is matter of record, or (/wasi-record. 

2. Conclusiveness of recitals in decree. — Recitals in a decree, as to 
matters admitted, or done by consent, are conclusive in this court, being 
considered as facts judicially ascertained. 

3. Confirmation of sale, and execution of deed to purchaser; burden of 
proof as to compliance with terms of sale. — When lands have been sold 
under a decree, the plaintiff (or complainant) becoming the purchaser, 
the sale confirmed by the court, and the register ordered to execute a 
conveyance to the purchaser, on his entering a credit on the decree for 
the amount of the purchase-money ; the execution of a deed to the pur- 
chaser by the register, being presumed to have been rightfully done, 
casts on the defendants, resisting an application for a writ of assistance, 
the onus of proving that the credit was not entered as ordered. 

4. Writ of assistance to purchaser. — The customary and better prac- 
tice, possibly, requires that an order for the surrender of possession 
should be made, before a writ of assistance is granted ; but, where the 
record shows that such an order would have been unavailing, the de- 
fendants resisting the purchaser's right to be let into possession, such 
preliminary order may be dispensed with. 

5. Election between action at laxo and writ of assistance. — If the pur- 
chaser has brought an action at law to recover the possession, and the in- 
stitution of such action furnishes good cause for compelling an election 
between it and a writ of assistance ; that is defensive matter, in the na- 
ture of confession and avoidance, and must be proved by the defendants 
setting it up. 

Appeal from the Chancery Court of Choctaw. 

Heard before the Hon. John A. Foster. 

The appeal in this case is taken from an order and decree 
granting a writ of assistance to Josepli M. Lyon, on his peti- 
tion, to put him in possession of certain lands, of which he 
claimed to be the purchaser at a sale made by the register of 
said court; which petition was resisted by John W. Kemp, E. 
T. Kemp, James M. Kemp, and Robert W. Kemp, who were 
in possession of the land, and were also defendants to the suit 
in which the decree of sale was rendered. The decree, under 
which the register sold said lands, was rendered on the 22d 
January, 1878, in a cause then pending in said court, wherein 
Edward McCall, as the administrator of Joseph Kemp, de- 
ceased, was complainant, and the defendants to said petition, 
with others, were defendants. The bill was filed by said ad- 

VOL. LXXVI. 



1884.] OF ALABAMA. 213 

[Kemp V. Lyon.] 

ininistrator, on tlie 14tli October, 1875, for the purpose of ob- 
taining a judicial construction of the decedent's will, the re- 
moval of the administration from the Probate Court, the in- 
structions of the court in the further administration of the 
estate, and an injunction of an action at law instituted against 
the administnjtor by Mrs. M. A. Gaboon, one of the defendants 
to the bill, to recover the arrears of an annuity bequeathed to 
her by the will. By the decree rendered in the cause on said 
22d January, 1878, the chancellor removed the administration 
into the Chancery Court, enjoined Mrs. Cahoon's action at law, 
and further decreed as follows: " It is ordered and decreed, 
that the lands in the possession of E. T. Kemp, John W. 
Kemp, James M. Kemp and Robert W. Kemp are justly 
chargeable with said annuity of $150" [in favor of Mrs. Ca- 
hoon] "up to the majority of said Robert W. Kemp, and a 
lien is hereby declared to exist on said real estate, in favor of 
Mrs. M. A. R. Cahoon, for the arrearages of said annuity ; and 
it is decreed that, in case said sum of $450, with the interest 
due thereon, be not paid on or before November 1st, 1878, it 
is hereby made the duty of the register to sell a sufficient quan- 
tity of the lands of said E. T., John W., James M. and Robert 
W. Kemp, to pay off said claim, together with the costs of this 
suit." 

On the 10th November, 1879, a petition was filed in the 
cause by the administrator, alleging that the numbers of the 
lands, as designated in the government survey, were incorrectly 
stated in the bill, and praying that the mistake might be cor- 
rected by the substitution of the proper numbers in the bill, 
and that the decree might be amended, nunc jpro tunc^ by the 
insertion of these numbers in describing the lands. On the 
14th November, 1879, the chancellor granted leave to amend 
the bill and decree as prayed ; but the record does not show 
that any of the defendants to the bill were notified of the pro- 
posed amendment. At the June term, 1881, the register re- 
ported that he had sold the lands under the decree, on the 5th 
April, 1880, and that Mrs. M. A. Cahoon became the pur- 
chaser, at the price of $1,160, and the report then added: 
"The said decree in this cause has been transferred by Mrs. M. 
A. R. Cahoon to one Joseph M. Lyon, by whom the court costs 
have been paid." The report was read on the 14th June, 1879, 
and ordered to lie over for one day ; and the following decree 
was rendered : " By consent of the parties, it is ordered by the 
court, that the report of the register of the sale of the land be, 
and it is hereby confirmed ; and Joseph M. Lyon being substi- 
tuted, by consent of all parties, for Mrs. Cahoon, the pur- 
chaser, it is ordered by the court, that the register make to him 
a deed to the lands sold under the decree in this cause, and bid 



2U SUPKEME COURT [Dec. Term, 

I Kemp V. Lyon.] 

off by Mrs. M. A. R. Cahoon, npoti his crediting the decree 
with the amount of the pnrchase-tnoney of the land." 

The petition for the writ of assistance was tiled by said 
Joseph M. Lyon on the 11th Jane, 1883, and alleged the ren- 
dition of said decree on the 22d January, lft78, the sale of the 
lands under it by the register, the purchase by the petitioner, 
the confirmation of the sale by the court, the execution of a 
deed by the register to the petitioner, and the possession of the 
lands by said E. T., John W., James M. and Robert W. Kemp, 
who, it was added, " withhold the same from your petitioner, 
and have had notice of this application." An answer to the 
petition was filed by said E. T. Kemp and the other defendants 
named, in which they set up the following defenses to the re- 
lief prayed by the petition : 1st, that the amendment of the 
decree nunc pro tunc, under whicii the lands as therein de- 
scribed were sold, wa^ void, and was rendered without notice 
to them ; 2d, that the purchase-money had never been paid to 
the register, nor entered as a credit on the decree; 8d, that the 
court had never made an order requiring the defendants to 
surrender the possession of the lands to said Lyon as the pur- 
chaser; 4th, that the decree was not authorized by the plead- 
ings and proof in the cause; and, 5th, that Lyon had instituted 
an action at law to recover the possession of the lands, which 
they pleaded in bar of the relief sought by the petition, or as 
ground to compel an election by him. 

The cause being submitted to the chancellor, on the petition 
and answer thereto, he rendered a decree awarding a writ of 
assistance as prayed ; and his decree is now assigned as error. 

L. H. Faith, with whom was F. L. Pettus, for appellant. 
(1.) The court had no jurisdiction to make the amendment 
nunc pro tunc. — Trawick v. Trawiek, 67 Ala. 271 ; Van 
Dyke V. The State, 22 Ala. 57; Buchanan v. Thomason, 70 
Ala. 401; Whorley v. Railroad Co., 72 Ala. 20; Jonnson v. 
Glasscock, 2 Ala. 539; Ansley v. Robinson, 16 Ala. 793; 
Watt V. Watt, 37 Ala. 547; Lilly v. Larkin, QQ Ala. 122; 
Thompson v. Miller, 2 Stew. 470. (2.) The decree being 
void, it may be collaterally assailed, and the sale under it is 
equally void.— 2 Brick. Digest, 157-8, §§ 17-21 ; Freem. Void 
Jud. Sales, 17-18. (3.) The court will not lend its assistance 
to carry into execution an erroneous or unjust decree. — 3 Ainer. 
Eq. Digest, 358, § 4. (4.) By the established practice of the 
court, an order for the surrender of possession must be made, 
and a copy of that order must be served on the defendant, be- 
fore a writ of assistance will be awarded against him. — Creighton 
V. Paine, 2 Ala. 158; Trammel v. Simmons, 8 Ala. 271; 
Thompson v. Campbell, 57 Ala. 183; Hooper v. Yonye, 69 
Vol. lxxvi. 



i«84.] OF ALABAMA. 215 

[Kemp V. Lyon.] 

Ala. 484; Kershaw v Thompson, A: Johns. Ch. 609; 2 Dan. 
Cli. Pr. 1062, 5th ed. (5.) The hipse of time is fatal to the 
relief sought by the petition. — Hooper v. Yoiuje, 69 Ala. 484; 
Bartan v. Beatty, 28 N. J. Eq. 412; Van Meter v. Brovyn^ 
25 N. J. Eq. 414; 2 Dan. Ch. Pr. 1063. 

W. F. Glover, and J. J. Altman, contra. — (1.) The court 
had power to amend its own decrees, nunc pro tunc, at a sub- 
8e(pient tern), on proper evidence ; and it was not necessary to 
set out the evidence authorizing the amendment. An appeal 
from the decree being now barred, its validity can not be as- 
sailed collaterally.— 29 Ala. 542; 41 Ala. 26; 53 Ala. 152; 
50 Ala 557 ; 52 Ala. 55 ; IS Ala. 694. (2.) The sale was con- 
firmed, by consent, to Lyon as the purchaser ; and this consent 
decree operates as an estoppel against impeaching its validity. 
(3 ) The petitioner was entitled to a writ of assistance to en- 
force his purchase. — Richardson v. Jones, 3 Gill & J. 163 ; 69 
Ala. 484; 70 Ala. 108; 2 Dan. Ch. Pr. 1280, 1st ed. by 
Perkins. 

STONE, C. J. — In two respects, it is possible the rulings of 
the chancellor would have been reversed, if there had been an 
appeal, prosecuted in time. Those rulings are — ■first, the char- 
acter and extent of the relief granted, considered in connection 
M'ith the pleadings on which it was granted. The object of 
the bill was, to obtain a construction of the will of Joseph Kemp, 
deceased, and instructions for the administration of his estate, in 
its changed condition brought about by the emancipation of 
slaves, which constituted a large part of his estate. The bill, 
framed only for these objects, was, perhaps, wanting in neces- 
sary averments to justify- the decree tliat the lands should be 
sold for the payment of the unpaid balance of Mrs. Gaboon's 
annuity. 

The second, possibly, faulty ruling, was in allowing the 
amendment 7m7?c jt>?'0 tunc. The bill set forth certain lands, 
described by government-survey numbers, as belonging to the 
estate of the testator. The decree ordered a sale of the lands, 
by numbers corresponding to those stated in the bill. The de- 
cree was rendered and enrolled. At a subsequent term of the 
court, the complainant moved the court, on written application, 
for leave to amend his bill and the decree, by striking from 
each the numbers of the land therein described, and inserting 
other numbers. It would seem to be clear, that this motion 
proposed to effect a very material change in the relief prayed 
for and obtained. Defendants might have been willing that 
the lands described in the original bill should be sold, and un- 
willing to have their rights to the substituted lands passed on 



216 SUPKEME COURT [Dec. Term, 

[Kemp V. Lyon.] 

in that proceeding. Yet the motion was granted, without any 
notice to the defendants, so far as this record discloses. It is 
even questionable if the motion should have been granted, even 
if there had been notice. Such orders are granted, only on 
evidence which is matter of record, or quasi-record. — 1 Brick. 
Dig. 78-9, §§ 138, 139, 145, 147. The transcript in this case 
discloses no record, nor any thing having the properties or na- 
ture of a record, which could have authorized the amendment. 
No appeal, however, was taken from these rulings, and the 
time for such appeal has long since expired. 

After the decree was rendered, and after the amendment 
nunc pro tunc was petitioned for and allowed, the register 
advertised and sold the lands, and Mrs. Gaboon was set down 
as the highest bidder and purchaser. Before the sale was re- 
ported to the chancellor, an agreement was made and reported 
to the register, by which Lyon, the present appellee, was sub- 
stituted for Mrs. Gaboon as the purchaser. The register 
thereupon reported the sale, and, among other things, said : 
" The said decree in this cause has been transferred by Mrs. M. 
A, R. Gaboon to one Joseph M. Lyon, by whom the court 
costs have been paid." The report of sale, after having been 
read, lay over one day by order of the court, and was then con- 
firmed. In the order of confirmation is this language: " By 
consent of the parties, it is ordered by the court, that the report 
of the register of the sale of the land be, and it is hereby con- 
firmed ; and Joseph M. Lyon being substituted, by consent of 
all the parties, for Mrs. Gaboon, the purchaser, it is ordered by 
the court, that the register make to him a deed to the land sold 
under the decree in this cause, and bid off by Mrs. M. A. R. 
Gaboon, upon his crediting the decree with the amount of the 
purchase-money of the land." 

Lyon filed his petition in the court below, for a writ of 
assistance, or to be let into the possession of the land. The will 
of testator had devised the lands in controversy to his four 
grandsons, and the petition alleged they were in possession. 
The petition, after setting forth petitioner's purchase, averred 
further, that "said sale, having been complied with, was con- 
firmed by said court ; whereupon the register executed to peti- 
tioner a deed to the lands," which had been described in a pre- 
vious part of the petition. The four grandsons, devisees, had 
been made parties to the suit, and they were made parties to 
the petition by service of notice. They resisted the relief prayed 
for in the petition, and set forth several grounds why the prayer 
should not be granted. They did not deny any thing set forth 
in the record as having been done. 

They resisted, first, on the ground that the decree of sale was 
outside of the scope and purview of the bill, and that the amend- 

VOL. LXXVI. 



1884.J OF ALABAMA. 217 

[Kemp V. Lyon.] 

ment of the bill and decree nunc pro tunc was unauthorized. 
We think the consent decree of substitution and confirmation 
cured these irregularities. In the case of Tillman v. Spann, 
an attempt was made to ijet around the force of recitals of facts, 
found in the chancellor's decree. The facts recited did not 
otjjerwise appear in the record, jet they were material to the ex- 
tent of relief granted. We said : " We feel bound by the 
statement of the chancellor. . . If the chancellor fell into 
error, as to the nature and scope of the agreement, that should 
liave been corrected in the court below." — 68 Ala. 10'*2. So, 
recitals in judgment-entries, of material matters not otherwise 
appearing, have always been regarded by this court as facts ju- 
dicially ascertained. Nothing less than this can uphold the 
absolute verity of records. — Gilbert v. La7ie, 8 Por. 267 ; Mo(m 
V. Crowder, 72 Ala. 79 ; Beam v. The State, 62 Ala. 218 ; Lee 
V. Sims, 65 Ala. 248 ; 2 Brick. Dig. 145, |§ 206, 209 ; Dedonde 
V. Darrington, 29 Ala. 92 ; Colbert v. Daniel, 32 Ala. 314 ; 
Catlin V. Gilder, 3 Ala. 536 ; Sloan v FrotJdngham, 65 Ala. 
593 ; and s. c, 72 Ala. 589. 

The second objection urged was, that the purchase- money 
had not been paid by Lyon. In the decretal order con- 
firming the sale, the chancellor directed the register to make 
title to Lyon, the purchaser, " upon his crediting the decree 
with the amount of the purchase-money of the land.-' The 
petition for writ of assistance avers, that the register had made 
a deed to Lyon as purchaser. This the register had no au- 
thority to do, until the credit was entered. The answer does 
not deny that the deed was made, but impliedly admits it. 
Presuming, as we must, that the register obeyed the chancel- 
lor's instructions and did his duty, we hold this made a prima 
facie case of compliance by the purchaser, and cast on Mie de- 
fendants the burden of disproving it. No proof was offered on 
the subject, and the prima facie cRse is thereby left unrebutted. 
There is nothing in this objection. 

It was further urged, that the chancellor should not award 
the writ of assistance in the first instance, but should first have 
made an order, requiring defendants to surrender possession of 
the land. Possibly, that is the customary and better practice. 
2 Dan. Ch. Pr. 1062; Kershaw v. T/iornpson, 4 Johns. Ch. 609; 
Thompson v. Campbell, 57 Ala. 183 ; Hooper v. Yonge, 69 Ala. 
484 ; Johnson v. Smith, 70 Ala. 108. This, however, must be 
largely a matter of discretion, dependent on the facts of each 
particular case. It would be harsh to issue the order in the 
first instance, unless it appear that the defendant in possession 
refuses to vacate the premises. It is, however, made to appear 
in this case, that the defendants in possession resist Lyon's as- 
serted right to be let into the occupancy. This shows that pre- 



21S . SUPREME COURT [Dec. TcM-m, 

[Askew Brothers v. Steiner & Lobman.J 

liminary orders would probably have been nnavailing, and dis- 
pensed with any supposed necessity of invoking them. 

It was urged in defense of the petition, that Lyon had insti- 
tuted his action of ejectment to recover possession, and that said 
suit was still pending. Defendants moved that complainant be 
put to his election, which remedy he would pursue. It is a 
sufficient answer to this, that we find in the record no evidence 
in support of this averment. This was defensive matter, in the 
nature of confession and avoidance, the proof of which was on 
the party who set it up. Failing to prove it. defendants can 
take nothing by it. 

The decree of the chancellor is affirmed. 



Askew Brothers v, Steiner & Lobinan. 

Trover for Conversion of Mule, with Counts in Case. 

1. Proof of execution of mortgage. — When the plaintiff claims the 
personal property in controversy under a mortgage, or other written in- 
strument, which is attested by sul)scribing witne.sses, its execution must 
be proved by one or both of them, or a proper predicate must be laid 
for the introduction of secondary evidence ; and the grantor's admission 
of its execution, not made injudicio, or in open court, does not dispense 
with this proof. 

2. Payment of mortgage debt. — Wlien a mortgage conveys personal 
property, payment of the mortgage debt satisfies and extinguishes the 
mortgage, and the mortgagee can not afterwards maintain an action at 
law founded on it. 

3. /Saw. — A mortgagee of personal property holds it in trust for the 
paymeht of the mortgage debt; and when he takes possession, and sells 
or converts it to his own use, applying the proceeds of sale, with the 
consent of one only of two joint mortgagors, to the payment of another 
debt, the mortgage is satisfied so far as the rights of the other mortgagor 
are concerned . 

Appeal from the Circuit Court of Wilcox. 

Tried before the Hon. John Moore. 

This action was brought by the appellants, suing as partners, 
to recover damages for the defendants' alleged conversion of a 
mule called Cricket; and was commenced on the 24th October, 
1882. The complaint contained a count in trover, and several 
counts in case; and the cause was tried on issue joined on the 
plea of not guilty. The plaintiffs claimed the mule, as the 
l>ill of exceptions shows, under three mortgages, as follows : 
Ist, a mortgage executed to them by W. 11 McClendon and W. 
F. Hopkins, which was dated February 18th, 1880, was given 
to secure statutory advances to make a crop during the year 

Vol. lxxvj. 



1884.] OF ALABAMA. 219 

(Askew Brothers V. Steiner & Lobman.J 

1880, and conveyed the mule here in controversy, witli another 
!nnle called John., and other personal property ; 2d, a inort^a^ijo 
executed to them by said W. B. McClendon alone, which was 
dated February 10th, 1881, conveyed the same mules, with 
other persnnal property, and was given to secure the payment 
of statutory advances to make a crop during tiie year 1881 ; 
and, 3d, a mortgage executed by said McClendon and one G. 
W. Wright to Steiner tfe Lobnian, the defendants in this suit, 
and by them transferred to the plaintiffs. This last mortgage 
was dated January 7th, 1880; was given to secure the payment 
of statutory advances to make a crop, to the amount of $S7 ; 
conveyed the same two mules, with other personal property, 
and was sold and transferred by said Steiner ife Lobman, by 
written transfer dated September 3d, 1881, to plaintiffs, in 
consideration of $95 in hand paid. Each of these mortgages 
was executed in Marengo county, w-here the property conveyed 
then was, and each was attested by one or two subscribing wit- 
nesses. When the plaintiffs offered in evidence tiie two mort- 
gages to themselves, they offei-ed to prove the execution thereof 
by TI. Askew, one of said plaintiffs, who was present when 
said mortgages were signed and attested ; " and plaintiffs' at- 
torney stated to the court, that Geo. L. Hawkins, the attesting 
witness to said instruments, had just recovered from a severe 
spell of sickness, and was unable to travel from Dayton, in 
Marengo county, to Camden, in said county of Wilcox." On 
objection by the defendants, the court excluded this evidence, 
and the plaintiffs excepted. The third mortgage, transferred 
by defer. dants to plaintiffs, with the transfer and other indorse- 
ments thereon, " was permitted to goto the jury without objec- 
tion ; " but, when the plaintiffs offered in evidence the note 
which it was given to secure, and which was signed by said 
McClendon and G. W. Wright, and attested by two witnesses, 
the defendants objected to its admission as evidence, withont 
proof of its execution by the testimony of the subsci'ibing 
witnesses ; which objection was sustained by the court, and 
the plaintiffs duly excepted. 

The mule John^ conveyed by said several mortgages, was 
delivered to the plaintiffs by said McClendon, at the agreed 
price of $12.^, which was applied, by his direction, as a partial 
payment on their mortgage debt ; but it was shown that the 
mule Cricket., here in controversy, which was claimed by said 
G. W. Wright as his individual property, was sold by him to 
the defendants, in January, 1882, at the agreed price of $110, 
and was sold by defendants to some person unknown. As to 
this mule, one of the defendants, testifying as a witness for 
them, stated that, on the 7th January, 1880, when defendants 
took said mortgage from McClendon and Wright, they had a 



220 SUPEEME COURT [Dec. Term, 

[Askew Brothers v. Steiner & Lobman.] 

claim on the other mnle {John), which McClendon wished to 
remove from Wile )X to Marengo county, to which removal 
they objected ; that Wright thereupon proposed, if they would 
consent to the removal, " to put the mule Cricket (which he 
claimed as his own property), and also his wages into the mort- 
gage, and to sign the mortgage with said McClendon, who was 
his brother-in-law ;" that they consented to this arrangement, 
and the mortgage was executed in pursuance of its terms ; that 
the mule Cricket was brought back into Wilcox county by said 
Wright, in June or July, 1881, and there remained in his pos- 
session until January, 1882, when they, " believing that Askew 
Brothers had had every opportunity to make their money on 
the transferred mortgage out of the property named therein, or 
from the crop of 1881," bought said mule from Wright, at the 
agreed price of $110. 

On this evidence, the plaintiffs asked the court to instruct 
the jury, " that unless they are satisfied, from the evidence, 
that the mule John belonged to said Wright, he was not au- 
thorized to give any direction as to the money derived from, or 
the value placed upon said mule." The court refused this 
charge, and the plaintiffs excepted to its refusal ; and they also 
reserved exceptions to the following ciiarges, which were given 
by the court on the request of the defendants : (1.) " If the 
jury believe, from the evidence, that at the commencement of 
this suit, on the 24:th October, 1882, there was in law nothing 
due on the mortgage in evidence, then the plaintiffs can not 
recover in this action." (2.) " If the direction as to the appli- 
cation of the proceeds arising from the sale of the mule John, 
named in said mortgage, was made by McClendon alone, and 
said Wrigiit, the co-itiortgagor, had nothing to do with said ap- 
plication, and never ratified it ; then the law applies the pay- 
ment to the mortgage debt, and, if the amount realized from 
the sale was as mucli as the amount due on the mortgage, then 
the mortgage was satisfied, and plaintiffs can not recover in this 
action." (3.) "If the jury find, from the evidence, that Steiner 
& Lobman, at the time they purchased the mule from said 
Wright, knew that said mortgage had been satisfied, and if said 
mortgage was in fact then satisfied, then the mere existence of 
said mortgage on the record, after it had been satisfied, wou4d 
not interfere with the defendants* right to purchase ; and if 
they did so purchase, they got a good title." 

The exclusion of the evidence offered, the charges given, and 
the refusal of the charge asked, are now assigned as error. 

R. Gaillakd, for appellants, cited Bickley v. Keenan cfe Co.^ 
60 Ala. 293 ; Morrow v. Turn^y, 35 Ala. 131 ; Brewer v. Mc- 
Crary, 52 Ala. 154; Ala. Warehouse Co. v. Lewis, h% AXsl. 

Vol. lxxvi. 



1884.] OF ALABAMA. 221 

[Askew Brothers v. Steiner & Lobman.] 

514; Steiner <& Bro. v. McCall, 61 Ala. 413; Jones on Chat. 
Mort. §§ 89, 64, 505, 493, 481, 516; McCravey v. lieTuson, 19 
Ala. 430; Pool v. Harrison, 18 Ala. 514; Lang v. Wilkinson, 
67 Ala. 259. 

S. J. CuMMiNO, conit'a, cited KUerson v. The State^ 69 Ala. 1 ; 
Meyer v. Mitchell, 75 Ala. 475 ; Jones on Chat. Mort. § 646 ; 
Levy stein v. Whitman^ 59 Ala. 345 ; Sanders v. Ivnox, 57 Ala. 
81 ; Webster v. Singley, 53 Ala. 208. 

SOMERVILLE, J. — The several written instruments which 
were offered in evidence bv the plaintiffs, and excluded by the 
court, were properly excluded. They were all attested by 
subscribing witnesses, one or more of whom should have been 
produced to prove the execution of the writings to which they 
had respectively affixed their attesting signatures. This rule is 
a familiar and fundamental one, and applies in all cases where 
the instrument necessary to be proved is the foundation of the 
party's claim, or he is privy to it, or where it purports to be exe- 
cuted by his adversary ; but not where it is merely collateral, 
or inter alios under or from whom neither party seeks to claim 
any right, title or interest. It is well settled, that the mere 
admission of the grantor of a deed, or of the maker of any 
instrument, that he executed it, does not dispense with the 
necessity of producing an attesting or subscribing witness, un- 
less such admission be made in judicio, or in open court. — 1 
Greenl. Ev. § 569; Russell v. Walker, 73 Ala. 315 ; Jenks v. 
Terrell, adm!r, Ih. 238 ; Ellerson v. State, 69 Ala. 1 ; Patter- 
son V. Kicker, 72 Ala. 406. The writings in question came 
within this rule, and not within the influence of section -036 of 
the Code, which authorizes the admission in evidence, without 
any proof of execution, on!}- of written instruments which pur- 
port to be signed by the defendant, his agent or attorney, and 
constitute the foundation of the particular suit, and the execu- 
tion of which is not denied by plea under oath. — Code, 1876, 
§ 3036. 

The plaintiff's only title to the mule in controversy, so far as 
shown by the evidence, was the mortgage executed by Mc- 
Clendon and Wright, on January 7th, 1880, to the defendants, 
and assigned by the mortgagees to the plaintiffs. It is clear 
that, if the mortgage debt was discharged, prior to the com- 
mencement of the suit, the lien of the mortgage would be ex- 
tinguished, and the action must necessarily fail, because no 
title to personal property can be shown under a satisfied 
mortgage. — Bums v. Campbell, 71 Ala. 271 ; Herman on 
Chat. Mortg. § 168 ; Pryer v. Lewis, 57 Ala. 551. The first 



222 SUPREME COURT [Dec. Term, 

[O'Donnell v. liodiger.] 

charge given at the request of the defendants was a mere as- 
sertion of this principle, in substance, if not in language. 

The undisputed evidence, the ci'edibillty and weight of 
wliich was submitted to the jury, shows that the mortgage was 
satisfied. Tiie plaintiffs are sliown to have received other 
property covered by the same mortgage, admitted to be of a 
valuatiun greater than the mortgage debt. It makes no differ- 
ence to which of the mortgagors, McClendon or Wrigiit, this 
property belonged. The plaintiffs had no light to apply it to 
any other than the mortgfige debt, without the consent of both 
of the mortgagors. The rule is a just one, that a mortgagee 
holds the mortgaged property in trust for the payment of the 
mortgage debt, and where he takes possession of it, and sells or 
converts it to his own use, the law satisfies the debt. — Levy stein 
V. Whitman, 59 Ala. 345. In Steele v. Mealing, 24 Ala. 285, 
it was held, that a mortgage given to a surety, to indemnify 
him against a particular debt, so far enured to the benefit of a' 
co-snrety, as to prevent the mortgagee from applying the pro- 
ceeds of the mortgaged propci'ty to any other than the mort- 
gage debt, to the prejudice of his co-surety. Admitting that 
the mule Johti belonged to McClendon, he and the plaintiffs 
had no right to dispose of the property, without the consent of 
Wright, so as to appropriate it to the satisfaction of any other 
debt than the particular one for the security of which it had 
been mortgaged. 

The charges of the court are free from error, and the judg- 
ment is affirmed. 



O'Donnell v, Rodiger. 

Contested Probate of Will. 

1. Construction of charges. — Charges wliich are reconcihible witli, 
and explanatory of each other, must be construed in connection ; and if, 
when so construed, they are correct, though erroneous as universal 
propositions, they are not cause for a reversal of the judgment. 

2. Charges ohjectionablr for generality, or obscurity, or misleading 
vnthout explanation. — A charge which asserts a correct legal proposition, 
but is objectionable on ac('onnt of its generality or obscurity, or because 
it is calculated to mislead the jury, is not cause of reversal ; the adverse 
party should protect himself by asking a qualifying or explanatory 
charge. 

3. RigJd of married iDoman to make will; charge as to. — A married 
woman has the right, under constitutional and statutory provisions 
(Const. Ala., Art. .\, § 6; Code, § 2713), to dispose of her separate prop- 
erty by will, without the consent of her husband ; and when the will of 

Vol. lxxvi. 



1884.] OF ALABAMA. 223 

rO'Donnell v. Rodiger.l 

a inarrit'd woman is contestt^d by lier surviving husband, for whom it 
made no provision, on the ground of mental incapacity, a charge assert- 
ing that " the deceased had the lawful right to make her will, and thereby 
dispose of her property as she wished, without thf consent f>f her hus- 
band, and without leaving him anything," construed in connection with 
other charges, which stated the law correctly as to mental capacity and 
the proof thereof, asserts a correct legal jiroposition, does not assume 
the mental capacity of the testatrix, and is not a charge on the effect of 
the evidence; and if objectionable for generality or obscurity, or calcu- 
lated to mislead the jury, it is not cause of reversal. 

4. PreKuniption of sanity; hurden of proof. — Sanity being the normal 
condition of the human mind, the law presumes that every person, of 
full age, has sufficient mental capacity to make a will, and casts on the 
contestant, in the first instance, the onus of proving mental incapacity at 
the time the will was exeduted ; but, when the contestant has estab- 
lished habitual and fixed insanity, at a time prior to the making of the 
will, the burden of proof is then sliifted to the proponent, and he is re- 
quired to show that the will was executed during a lucid interval. 

5. Same. — Mental aberration, when caused by an acute disease, or 
other temporary cause, will not be presumed to have continued for any 
particular time; and proof of the fact that, on the day the will was exe- 
cuted, the testatrix " was sick and flighty — that during part of the time 
she knew what she was doing, and a part of the time she did not know 
what she was doing " — is not sufficient to cast on the proponent the onus 
of proving that she was sane at the particular time when the will was 
made. 

6. Testnmt'ntary capacity. — The test of testamentary capacity is, not 
whether there was a total deprivation of reason, but whether tiiere was 
mind and memory enough to understand tiie business in hand-*— " power 
to collect and retain the elements of the business to be performed, for a 
sufficient time to perceive their obvious relation to each other." 

Appeal from the Probate Court of Mobile. 

Tried before the Hon, Price Williams, Jr. 

In the matter of the probate of a paper whicii was pro- 
pounded as the last will and testament of Mrs. Agnes O'Don- 
nell, deceased, by Aima B. Rodiger, who was therein made 
sole legatee and devisee, nominated as executrix, and relieved 
of giving bond ; and the probate of which was contested by 
Michael O'Donnell, the surviving husband of said decedent, ou 
the ground of mental incapacity on her part to execute a will. 
The paper was dated the 11th April, 1884; was signed by the 
testatrix, by mark only, and was attested by two witnesses. On 
the trial of the contest, a bill of exceptions was reserved by 
the contestant, in whicli the facts are thus stated : 

"The proponent offered testimony tending to show that said 
Agnes O'Donnell was of sound mind before the day on which 
said instrument was written, and from and including that day 
until her death ; that she told the attorney writing it, on the 
day of the writing of the instrument, that she wanted to make 
a will, and what disposition she desired to make of her prop- 
erty, and he wrote it out in accordance with her instructions ; 
that the will was then read over to her, and she signed it by 



224 SUPEEME COURT [Dec. Term, 

[O'Donnell v. Rodiger.] 

making her mark thereto, and tliat at her request, in lier pres- 
ence, and in the presence of each other, said Cloud and Wack- 
ernah, whose names are signed to tlie instrument as witnesses, 
subscribed their names thereto as such witnesses ; that she was 
not on good terms with her husband, who had often ill-treated 
her; that she had no other relations, and that she had often 
said, before her last illness, that she was going to give her prop- 
erty to the proponent. The contestant offered evidence tend- 
ing to show that the proponent, to whom all the property was 
given in the instrument offered for probate, was of no kin to 
the said Agnes O'Donnell ; that he was her husband, and was 
living with her at the time she was taken sick, but was away 
from home at work that day ; that when he came home he 
could not find where his wife had gone ; that he looked for 
her several days, and finally found her at the house of the pro- 
ponent, who would not allow him to see his wife, or to go in 
the house ; that he and his said wife lived together on friendly 
terms, and he was not abusive of her ; that she always said 
that she intended to leave the property to him ; that a large 
part of the property, though in the name of his wife, was the 
product of their joint labors ; that on the day said instrument 
was made, and only two or three hours before it was made, the 
said Agnes was flighty, and out of her head, and did not know 
what she was doing ; that she did not recognize any one, and 
thought that she had been going around the country, and spoke 
of people annoying her the night before who had in fact been 
dead for years; that she was in the same condition the evening 
of the day on which the instrument was written, and on the 
day following, and continued in that condition up to a few 
days before she died, and during these few days was speechless; 
that prior to the day of the making of the instrument, and 
during the entire time of her sickness, she was flighty, and a 
part of the time out of her head, and unable to know and re- 
cognize those around her, but at other times would seem to be 
rational enough," 

" This was all the evidence tended to show ; " and thereupon 
the court gave the following charge to the jury, at the request 
of the proponent : (1.) " That the deceased, Agnes O'Donnell, 
had the lawful right to make her will, and thereby dispose of 
lier property in such manner and to such person as she wished, 
without the consent of her husband, and without leaving him 
any thing." (2.) "The burden of proving mental incapacity to 
make a will, or undue influence in the making of the will, is on 
the contestant, Michael O'Donnell ; and unless he has satisfied 
the jury by the evidence that the deceased was so unsound in 
mind at the time she made the will as not to know what she 
was doing, or that undue influence was exercised over her to 
Vol. Lxxvi. 



1884.] OF ALABAMA. 225 

[O'Donnell v. Rodiger.] 

such a degree as to amount to moral coercion, which she was 
unable to resist, and that such coercion or influence produced 
the will, then they sliould find the issue against the contestant, 
and in favor of the proponent." (3.) " If tlie jury believe, from 
the evidence, that the deceased dictated to the witness Cloud 
how she wanted the will written, and the way she wished to 
will or dispose of her property, and requested him to write out 
her will for her, and to write her name to it ; and that he did 
60 in her presence, and then read it over to her, and she then 
and there made her mark to it as her will, and requested said 
Cloud and Wackernah to witness it ; and that they then and 
there wrote their names to said will as witnesses, in the presence 
of the testatrix, and in the presence of each other ; then said 
will was legally and properly signed and executed, within the 
meaning of the law of Alabama." 

The contestant excepted to each of these charges as given, 
and also to the refusal of the following charge, which was asked 
by him in writing : " If the jury believe, from the evidence, 
that on the day the will was signed Mrs. O'Donnell was 
sick and flighty ; that during part of the time she knew what she 
was doing, and a part of the time she did not know what she 
was doing ; then the burden is upon the proponent to establish 
to the satisfaction of the jury that she was sane at the particu- 
lar time when the will was signed ; and if the proponent fails 
in this, the jury should find against the validity of the will." 

The charges given, and the refusal of the charge asked, are 
now assigned as error. 

H. T. SMrrn, and J. L. & G. L. Smith, for appellant. — (1.) 
The first charge given was erroneous, because it assumed the 
sanity of Mrs. O'Donnell, which was a disputed question of fact, 
the decision of which should have been left to the jury. — Clarke 
(& Co. V. Goddard, 39 Ala. 164 ; Pritchett v. Munroe, 22 Ala. 
501 ; Newton v. Jackson^ 23 Ala. 335 ; Jones v. Fart., 36 Ala. 
449 ; Watei's v. Spencer, 22 Ala. 460 ; Brooks v. HUdreth <& 
Mosely, 22 Ala. 469 ; Whitsettv. Slater, 23 Ala. 626 ; McKen- 
zie V. Br. Bank, 28 Ala. 606 ; Knight v. Vardeman, 25 Ala. 
262 ; Brmon v. Newman, QQ Ala. 275. It is erroneous, also, 
because it is a charge on the effect of the evidence. — Stanley 
V. Nelsmi, 28 Ala. 514 ; Flollingsworth v. Martin, 23 Ala. 591 ; 
Dill V. The State, 25 Ala. 15 ; Smoot v. Railroad Co., 67 Ala. 
13; Walker v. Walker, 4:1 Ala. 353; Foust v. Yielding, 28 
Ala. 658. (2.) The second charge was erroneous, because it mis- 
placed the burden of proof, and because it does not assert a cor- 
rect test of testamentary capacity. — Saxon v. Whitake7\ 30 Ala. 
237. (3.) The third charge was erroneous, because it assumes 
the credibility of the evidence. — Cases cited in Brickell's Di- 
15 



226 SUPREME COURT [Dec. Term, 

rO'Donnell v. Rodiger.l 

gest, 342, § 98. (4.) The charge asked asserts a correct legal 
proposition, and it ought to have been given. Saxon v. Whita- 
ker, 30 Ala. 237. 

L. H. Faith, and Cloud & Cloud, contra. — (1.) The first 
charge given assei'ts a correct legal proposition. — Burton v. 
Holly, 18 Ala. 408 ; Lewis v. Hudson, 6 Ala. 463 ; Wells v. 
Bransford, 28 Ala. 200 ; Mosser v. Mosser, 32 Ala. 551. (2.) 
The will was properly signed and executed ; and the charge to 
this effect, which was based on the evidence before the jury, 
was correct. — Bailey v. Bailey, 35 Ala. 687. (3.) As to the 
burden of proof, where a will is contested on the ground of 
mental incapacity, and as to the test of testamentary capacity, 
the rulings of the court are sustained by the following authori- 
ties : Stiibhs V. Houston, 33 Ala. 563 ; Saxon v. Whitaker, 30 
Ala. 237; Clark v. Ellis, 9 Oregon, 128; Harden v. Hays, 
9 Barr, 151 ; Clark v. Sawyer, 3 Sanf. CIl 351 ; Jackson v. 
Van Dusen, 5 John. 159 ; Stevens v. Va7iGleve, 4 Wash. C. C. 
262 ; 91 Penn. St. 236; 58 Maine, 453 ; 94111. 560 ; Black v. 
Elli.^, 3 Hill, S. C. 68 ; 27 N. Y. 9 ; 38 Barb. 77 ; 18 111. 282 ; 
29 Penn. St. 298. 

CLOPTON, J.— Charges which are reconcilable with, and 
explanatory of each other, must be construed in connection ; 
and if, when so construed, they are correct, although erroneous 
as universal propositions, a reversal of the judgment is not vc^v- 
runted.— Insurance Co. v. Goodman, 32 Ala. 108. 

Construing the first charge given at the request of the pro- 
ponent, in connection with the charges which present the ques- 
tion of the mental capacity of the testatrix, and interpreting it 
as we have no doubt the court intended it to be understood by 
the jury, we do not think it is obnoxious to the criticism made 
by counsel. The objective proposition of the charge, to which 
the minds of the court and jury were evidently directed, is the 
right of a married woman to make a will, without the peronis- 
sion of her husband, and without any pi'ovision for hitn. It 
does not assume, as a fact, the mental capacity of the testatrix, 
which the law presumes ; it is not a charge on the effect of evi- 
dence, nor does it give the jury any direction as to their ver- 
dict. If a charge were expressed in the words of the" constitu- 
tion — that " the real and personal property of any female in 
this State . . may be devised or bequeathed by her, the same 
as if she were 'a. femme sole',''' or in the terms of the statute — 
that " married women may, by last will and testament, dispose 
of their separate estates," its correctness would not be contro- 
verted.— Con. Art. 10, § 6 ; Code, § 2713. The charge under 
consideration asserts the same general proposition, and not in 
Vol. lxxvi. 



1884.] OF ALABAMA. 227 

[O'Donnell v. Rodiger.] 

broader or tnore general phraseology. If tiie contestant sup- 
posed liiniseU injured bj the generality of the charge, or that 
it was calculated to mislead the jury, he should have requested 
a qualifying, or explanatory charge. A charge which asserts a 
correct legal proposition, but is objectionable on account of gen- 
erality, or obscurity, or because it is calculated to mislead the 
jury, will not operate a reversal. — Jones v. Fort^ 36 Ala. 449 ; 
Ahrahmn v. Nunn, 42 Ala. 51. 

The same observations are applicable to the third charge re- 
quested by proponent, which merely instructed the jury, that 
the will was legally and i^roperly signed and executed^ if they 
believed from the evidence the hypothetical facts stated in the 
charge. Construed in connection with the evidence, the charge 
is unobjectionable. — Riley v Riley^ 30 Ala. 496. 

Sanity is the normal condition of the human mind ; and there- 
fore the presumption is, whether a presumption of law, or of 
fact, or of n)ixed law and fact, that every person, of full age, 
has sutiicient mental capacity to make a will. This competency 
is presumed to continue, until the contrary is shown. When 
a will is propounded for probate, no general duty devolves on 
the proponent to make proof, in the first instance, of the sanity 
of the testator at the time of making the will. Whatever may 
be the conflict in the decisions of different courts, it may be re- 
garded as too well settled in this State, to be controverted or 
doubted, that when a will is contested on the ground of mental 
incapacity, the onus of proof is on the contestant. The time to 
which the inquiry must be directed, is the particular pieriod 
when the will is ujade ; but, for this purpose the mental con- 
dition of the testator, before and subsequently, may be shown. 

The contestant fulfills this requirement as to the onus of 
proof, when he establishes lunacy at a time prior to the making 
of the will. As the presumption is that lunacy, once estab- 
lished, continues, if it is alleged, in such case, that the will was 
made during a lucid interval, " the burden of proof attaches to 
the part}i alleging such lucid interval, who must show sanity 
and competency «^ the particular i^^riodr — Saxon v. Whitaker^ 
30 Ala. 237 ; Jackson v. Dvsen, 2 John. 144 ; Gruhhs v. Mc- 
Donald, 91 Penn. St. 236. 

In order, however, to have effect to shift the burden of proof 
on the proponent, to show that the will was made during a 
lucid interval, the contestant must establish habitual and fixed 
insanity. Occasional fits, or aberrations of mind produced by 
temporary causes, are not sufficient. There is no presumption 
in favor of the continuance of any thing temporary, or 
ephemeral in its nature. Tlie disease of the mind must be of 
such general and jiermanent character, as human experience 
shows generally continues. Where the insanity is produced by 



428 SUPKEME COURT [Dec. Term, 

[O'Donnell v. Rodiger.] 

an attack of some acute or violent disease, it is not sufficient 
for the contestant merely to show its existence, under such cir- 
cumstances, at a time, short or distant, preceding the making of 
the will. He must also show its continuance to the time when 
the will is made. —Brown v. Riggin^ 94 111. 560 ; Clarice v. 
Sawyer^ 3 San. Ch. 351 ; Hix v. Whittemore^ 4 Met. 545. 

In Saxon v. Whitaker, supra^ it is said : "As a lucid inter- 
val is temporary in its nature, and uncertain in its duration, the 
law will not presume its continuance for a month, a day, or an 
hour ;" this is when usual or habitual insanity has been once 
established. The converse of the proposition is equally true: 
the continuance of a temporary delusion or delirium caused by 
disease will not be presumed " for a month, a day, or an hour." 
In Staples v. Wellington, 58 Me. 453, it is said : " If the de- 
lusion or delirium is that caused by disease, it is obviously 
temporary in its character. It will continue only during the 
continuance of the fever, in which it originated. If a fever is 
shown to exist at a given date, the law does not presume its 
continuance, as in the case of fixed insanity. So, there is no 
presumption of law as to the continuance of the temporary 
hallucination or delusion resulting from disease. The party 
claiming to avoid a contract, by reason of temporary hallucina- 
tion or delusion, must show its existence at the time of the 
contract sought to be avoided for such cause, and that it was 
of a character affecting his capacity to make the contract 
sought to be avoided." 

The second charge requested by the proponent put the onus 
of proof, in the first instance, on the contestant, and, in this 
respect, is in accord with the principles we have stated. The 
predicate of the charge requested by the contestant does not 
answer the rule. That on the day the will was signed, the 
testatrix " was sick and flighty ; that during part of the time 
she knew what she was doing, and part of the time she did not 
know what she was doing," is not sufficient to cast on proponent 
the burden to show that she was sane at the particular time 
when the will was made. The hypothesis stated is not a con- 
dition of fixed or habitual -mental derangement or flightiness. 
The clear implication from the hypothetical facts is, that the 
flightiness or delirium was temporary, and subsided and ceased, 
as the operating cause subsided and ceased. 

"A total deprivation of reason is not requisite to destroy tes- 
tamentary capacity. Dementia and idiocy are not the only 
forms of incapacity. A competent testator must not only have 
mind and memory, but mind and memory enough to under- 
stand the business in which he is engaged." A disposing 
memory is requisite — not mere weakness of understanding, 
bat " power to collect and retain the elements of the business 
Vol. lxxvi. 



1884.] OF ALABAMA. 229 

[Foster v. Burt.] 

to be performed for a sufficient time to perceive their obvious 
relation to each other." The testatrix should have had capacity 
to know what she was doing. — Stiihhs v. Houston^ 33 Ala. 555 ; 
Taylor v. Kelly, 31 Ala. 59; Converse v. Converse, 21 Vt. 168. 
This is the test of testamentary capacity applicable to this and 
similar cases. 
Affirmed. 



Foster v, Burt. 

Application for Mandamus to Probate Judge, refusing to 
grant License for Retailing Spirituous Liquors. 

1. License tax on retailers of spirituous liquors, under revenue law of 
1876. — Under the provisions of the revenue law approved March 6th, 
1876, imposing a license tax on retailers of spirituous, vinous, or malt 
liquors (Sess. Acts 1875-6, pp. 79-i0), the price of the license in the city 
of Mobile, outside of certain designated limits, is reduced to $75 ; but the 
other provisions contained in the paragraph declaring this limitation, as 
transcribed into the Code (§494, subd. 2), apply to the entire subdivision 
of the section, and are not confined to the portions of the city of Mobile 
in which a reduced license is imposed. 

2. Same. — Under this construction of the statute, when a license for 
retailing liquors is taken out after the first day of January, the full price 
for the whole year must be paid, though a license for any other business 
or occupation, if taken out after the first day of July, is only one half the 
price for the whole year. 

Appeal from the Circuit Court of Lawrence. 

Tried before the Hon. H. C. Speake. 

In the matter of the petition and application of Richard W. 
Burt, a citizen of said county, for the writ of 7nandamus, ad- 
dressed to the Hon. E. H. Foster, the probate judge of said 
county, requiring him to issue and grant to the petitioner a 
license for retailing spirituous liquors in the town of Court- 
land, for the period intervening between September 1st, and 
December 31st, 1884, on the payment of $37.50 as the price. 
The petition alleged that the petitioner had made application 
in due form to the probate judge, had tendered the $37.50, and 
complied with all the prescribed prerequisites for obtaining a 
license ; and that the probate judge refused to grant a license, 
except upon the payment of $75, the price of a license for the 
whole year. An answer was filed by the probate judge, ad- 
mitting the facts as alleged, and insisting upon his construction 
of the law. 

The question presented involves the construction of parts of 



230 SUPREME COURT [Dec. Term, 

[Foster v. Burt.] 

tlie 5th and 7th sections of tlie 9th chapter of the Revenue 
Law approved March 6, 1876; and a proper understanding of 
it requires that the section should be set out as printed, both in 
the Session Acts of 1875-6, and in the Code of 1876. They 
are as follows : 

" Sec. 5. Be it further enacted, that all licenses shall ex- 
pire on the thirty-tirst day of December in each year, and shall 
be for one year, unless the business licensed shall commence 
after the first of July, in which case the price of the license 
shall be one half the amount of the year's license." 

" Sec. 7. Be it further enacted, that the price of licenses 
shall be as follows, to-wit : 

" 1. For each public race-track, . , , 

" 2. For retailers in spirituous, vinous, or malt liquors, on 
any steamboat or water-craft, one hundred dollars; in any (;ity, 
town or village, of less than one thousand in abitants, or any 
other place, fifty dollars ; and in any city, town or village, of 
more than one thousand and less than five thousand inhabitants, 
one hundred dollars ; in any city over five thousand inhabitants, 
one hundred and twenty-five dollars. 

" Any person who shall sell or dispose of spirituous, vinous or 
malt liquors, or intoxicating bitters, in any quantity less than 
one quart, shall be deemed a retail dealer ; promded^ that each 
retailer of spirituous, vinous or malt liquors, outside the follow- 
ing described boundaries in the city of Mobile, to-wit : 

" Right bank of Mobile river on the east, Church street on 
the south, Joachim street on the west, St. Michael street on the 
north, including those settled on the north side of St. Michael 
street, on the west side of Joachim, and on the south side of 
Church street, shall be charged a State license of seventy-five 
dollars; provided further, that dealers in lager beer exclusively 
shall be charged one-fourth the rate charged for license for sell- 
ing ardent spirits; provided further^ that any person who takes 
out and pays for a retail license, as herein provided, shall not 
be required to take out a license as a wholesale dealer; prrovided 
further, that when a retail license is taken out after the first of 
January, the license shall be the same as for a license for twelve 
months." — Sess. Acts 1875-6, pp. 79-80. 

These sections are incorporated into the Code of 1876, thus: 

" § 494. License for one year j expires Decemler 31 j after 
July first half price of licenses, and for what required. — All li- 
censes shall expire on the thirty-first day of December in each 
year, and shall be for one year, unless the business licensed shall 
commence after the first of July, in which case the price of the 
license shall be one-half the amount of a year's license. The 
prices of licenses shall be as follows, to-wit : 

"1. P\)r each race-track, * * * 
• Vol. lxxvi. 



KS84.] OF ALABAMA. 231 

[Foster v. Burt.] 

"2. F'or retailers of spiritnoue, vinous or malt liquors, on any 
steamboat or watercraft, one linndred dollars; in any city, town 
or village, of less than one thousand inhabitants, or any other 
place, fifty dollars; and in any city, town or village, of more 
than one thousand and less than five thousand inhabitants, one 
hundred dollars; in any city of over five thousand inhabitants, 
one hundred and twenty-five dollars. 

"Any person who sells or disposes of spirituous, vinous or 
malt li(]U()rs, or intoxicating bitters, in any quantity less tly^ 
one quart, shall be deemed a retail dealer; but each retailer of 
spirituous, vinous or malt li(|uors, outside the following de- 
scribed boundaries in the city of Mobile, to-wit : 

"Right bank of Mobile river on the east, Church street on 
the south, Joachim street on the west, St. Michael street on the 
north, including those settled on the north side of St. Michael 
street, on the west side of Joachim, and the south side of 
Church street, shall be charged a State license of seventy-five 
dollars; but dealers in lager beer exclusively shall be charged 
one-fourth the rate charged for license for selling ardent spirits; 
and any person who takes out and pays for a retail license, shall 
not be required to take out a license as a wholesale dealer ; and 
when a retail license is taken out after the first of January, the 
price of the license shall be the same as for a license for twelve 
months." 

The circuit judge awarded the mandamus as prayed, and 
his order to that effect is now assigned as error. 

T. N. McClellan, Attorney-General, for appellant. 

STONE, C. J. — The present case requires a construction of 
chapter 9, section 7, subd 2, of the Revenue Law of 1875-6, 
approved March 6, 1876.— Sess. Acts, pp. 79-80; Code of 
1876, § 494, subd 2. That section (494) relates exclusively 
to occupation licenses, and subdivision 2 relates to licenses for 
retailing spirituous, vin(Uis, or malt liquors. This statute was 
not transcribed literally in the Code, but the spirit and sub- 
stance of it were retained. What are stated as provisos in the 
original statute, are expressed as exceptional clauses in the 
Code. In the original act are four provisos to this sub-section 
two; and the question is, how far shall their qualifying infiu- 
ence extend ? — are they, each and all, limitations on the powers 
conferred in said sub-section 2, or are the last three of said 
provisos further restrictions of the limitation imposed by the 
first? To hold the latter, would be to declare that the last 
three are provisos to the first proviso, — a rather unusual form 
of legislative expression. We think each of these provisos, or 
reservations, has the same scope and operation, and that each 

Vol. lxxvi. 



232 SUPKEME COURT [Dec. Term, 

[Foster v. Burt.] 

is a limitation on the authority to license retailers of spiritu- 
ous, vinous and malt liquors. The first proviso declares, that 
all of the city of Mobile, except a described part, shall not be 
governed by the general law declared by the tirst paragraph of 
t!i;it sub-section. Mark the language : " Each retailer, 

outside the following described boundaries m the city of 
Mobile, . . . shall be charged a State license of seventy- 
five dollars." This phrase is clumsily expressed. Properly 
transposed, it should read, " Each retailer in the city of Mobile, 
outside the following described boundaries," &c. We know 
from census reports, and in many other ways, that Mobile is a 
city of more than five thousand inhabitants ; and hence, in the 
absence of this legislative reservation or exception, a license to 
retail anywhere within the limits of the city would cost the 
applicant one hundred and twenty-five dollars, as the State's 
assessment for the privilege. This proviso reduced the assess- 
ment for the privilege, to be exercised in the city, outside the 
designated limits, to seventy-five dollars. We should not only 
do great violence to the language employed, but we would prac- 
tically repeal all the provisions of the first paragraph of said 
sub-section 2, if we held this proviso applied to any locality, 
other than the city of Mobile, outside of the described limits. 

The three other provisos relate to the whole field covered by 
the first paragraph of sub section 2, in section 494 of the Code ; 
and they override section 5 of chapter 9 of the act — first para- 
graph of section 494 of the Code — so far as retailers are con- 
cerned. That paragraph — (§ 5, art. 9 of the act — ) is the gen- 
eral rule for taking out licenses. The last of the four provisos, 
or exceptions, declares, " that when a retail license is taken out 
after the first of January, the price of the license shall be the 
same as for a license for twelve months." This prohibits the 
issue of a license to retail spirituous, vinous, or malt liquors, at 
a fractional rate, while it leaves all other occupation licenses 
under the rule as declared in said section 5. Any other con- 
struction than this, would be to withhold the benefit of re- 
duced cost of license from dealers "in lager beer exclusively," 
save those so employed in such traffic in the city of Mobile, 
outside of the prescribed limits; and it would also withhold, to 
the same extent, that other privilege of selling at wholesale, 
secured, by the third proviso, to all persons who take out and 
pay for a license to retail, according to the provisions of the 
act. These provisions were manifestly intended, not as a boon 
to a fraction of the city of Mobile, but to operate co-extensively 
with the State. These provisos in the statute are placed before 
the one under special discussion, and we know of no rule of 
interpretation which would authorize us to give to the latter 
Vol. lxxvi. 



1884.] OF ALABAMA. 233 

[Pensacola Railroad Co. v. Schaffer.] 

one a narrower meaning, in the absence of all langnage point- 
ing in that direction. 

The judgment of the Circuit Conrt is reversed, and a judg- 
ment here rendered, denying all relief, and dismissing relator's 
petition. Let the costs of this suit, and of the appeal, both in 
the court below and in this court, be paid by the appellee. 

Reversed and rendered. 



Pensacola Railroad Co. v, Schaffer. 

Statutory Action to enforce Contractor's Lien on Building. 

1. When substituted contractor may enforce statutory lien. — When a 
contract for the construction of a house is transferred by the contractor, 
with the consent of the employer, after the commencement of the work, 
to another person, wilh whom the empl-iyer then agrees to deal in future 
'•as if he was the original contractor," and who afterwards completes 
the work according to the stipulations of the contract ; the person thus 
substituted may enforce the statutory lien given to original contractors 
(Code, §§ 3440-47), and the employer is estopped from denying that he 
is the original contractor. 

2. Secondary evidence of telegram. — When an original telegram is 
shown to be in another State, beyond the jurisdiction of the court, a copy 
thereof is admissible as evidence. 

3. Judgments against contractor by workmen , and against employer as 
garnishee; admissibility as evidence against substituted contractor. — Judg- 
ments recovered before a justice of the peace, against the original con- 
tractor, in favor of workmen employed by him, and against the employer 
as garnishee, are res inter alios actse as against the substituted con- 
tractor, and neither binding on him, nor admissible as evidence against 
him, when he was not made a party to the proceedings. 

4. Who is properly plaintiff, as party really interested. — The substi- 
tuted contractor, with whom the employer agrees to deal in future "as 
if lie were the original contractor," may maintain a statutory action to 
enforce the lien in his own name, as "the party really interested" 
(Code, 4 2890), although he has agreed to pay over to the original con- 
tractor a specified part of the profits he might realize by the contract. 

Appeal from the Circuit Conrt of I^scambia. 

Tried before the Hon. John P. Hubbard. 

This action was brought by John W. Schaffer, against the 
Pensacola Railroad Company, a domestic corporation, to en- 
force an alleged statutory lien, in favor of the plaintiff as 
original contractor, upon and against a building erected and 
used as a hotel, at Pensacola Junction in said county ; and was 
commenced on the 16th April, 1878. The original contract 
for the erection of the building was made between Rudolph 
Beuz, as contractor, and the defendant railroad corporation, 



234 SUPREME COURT [Dec. Term, 

[Pensacola Railroad Co. v. Schaffer.] 

actiiio; throngli W. D. Chiplcy as its agent and manager, and 
was reduced to writing, and signed hy both parties, on the 2d 
June, 1877. By tlie terms of this contract, tlie work was to 
be completed by the 1st August, 1877, and the agreed price 
was $1,400, with $250 in addition for changes made by the 
railroad compan}- ; and it was stipnlated that payments should 
be made, every ten days, to the extent of seventy per cent, of 
the work done. On tiie 24tli July, 1877, the work not being 
comj)leted, and some complications having arisen between the 
parties, aud with the workmen employed, another agreement 
was then entered into between said Beuz and said Chipley, 
which, as reduced to writing, and signed by both parties, was 
in these words: " Wher'eas we, the undersigned, have hereto- 
fore, to-wit, on the 2d June, 1877, entered into articles of agree- 
ment, whereby the said R. Beuz was to erect and finish the 
new building at the junction of the Mobile and Montgomery 
and the Pensacola railroad, agreealily to the drawings, ifec, of 
Chas. H. Overman, ai-chitect, for same* terms aiid payments 
therein stipulated; a7id noherean the said Beuz has notified the 
said Chipley that he has made due transfer of the said contract, 
with its obligations and immunities, to one John Schaffer, and 
asked acquiescence in and to said transfer : It is therefore 
hereby agreed between said Beuz and Chipley, that the latter 
agrees to said transfer, and, without releasing said Beuz from 
said contract and its obligations, in all future transactions in 
reference to same, to deal with said Schaffer as if he were the 
original contractor; the said Beuz hereby authorizing said 
Chipley to make all payments, due or to become due by virtue 
of said contract, either in regular stipulated installments, or for 
extras as per contract, to said Schaffer ; the said Beuz hereby 
agreeing, that the receipt or receipts of said Schaffer to said 
Chipley shall be good against him, for any claims he may or 
might have by virtue of said contract against the said Chiple}', 
either individually or in his capacity of manager of said Pen- 
sacola Railroad Company, or agahist the railroad company it- 
self. In witness whereof," tfec. 

A minute-entry by the clerk states that the papers in the 
cause were destroyed by fire, in September, 187i), when the 
court-house of Escambia county was burned ; and the record 
contains no order for the substitution of the papers. The com- 
plaint, as copied in the transcript, contained the common counts 
for work and labor done, and a special count which averred the 
making of the original contract between Beuz and Chipley, the 
subsequent agreement by which Schaffer was substituted as the 
contractor instead of Beuz, the performance of the work by 
Schaffer, and the registration of the contract by him within 
six months after the completion of the work, &c., whereby he 

Vol. lxxvi. 



1884.] OF ALABAMA. 235 

[Pensactila Railroad Co. v. Schafler.] 

claimed a statutory lien. There was a demurrer to the special 
count, l)eeause it showed on its face that Schaffer was not the 
original contractor; but the record does not show the rulino: of 
the court on the demurrer. The defendant iiled a special plea, 
which averred that the work on the building was done by cer- 
tain jiersons named, who were employed by said Benz, and 
who, on the 31st August, 1877, having duly filed their, claims 
as mechanics and laborers, instituted tiieir several suits to en- 
force their statutory lien on account of the work and laiK)r 
done by them on sai(i building, and summoned the defendant 
by garnishment, as the debtor of said Beuz, the original con- 
tractor; that the defendant tiled an answer in each case, admit- 
ting indebtedness to said Beuz to the amount of $398.28 ; that 
on the hearing of the several cases, judgments having beeti 
rendered against said ]^euz in favor of tiie several plaintiffs, 
judgments were also rendered against the defendant as gar- 
nishee, for amounts aggregating $398.28, as due to said Beuz 
before the transfer atid change in the contract ; and that de- 
fendant had paid these several judgments. Tlie court sus- 
tained a demurrer to this plea, and the cause was tried on issue 
joined on three i)leas: Ist, the general issue; 2d, payment ; 
3d, that plaintiif was not the party really interested in the con- 
tract sued on, and had no right to maintain the action in his 
own name alone ; and this last plea was duly verified by affi- 
davit. 

On the trial, as the bill of exceptions shows, the plaintiff 
offered in evidence the two contracts above tnentioned, and the 
court admitted them against the objections of the defendant; 
to which rulings exceptions were duly reserved by the de- 
fendant. Beuz and Schaffer each testified, as witnesses for the 
plaintiff, that he performed the woi'k under the contract, and 
completed the building according to the plans and specifications 
of the architect, but not until about the 1st September ; and 
that the delay was caused by Chipley's failure to furnish lumber 
and materials as needed, and by changes made l)y said Chipley 
in the plan of the building, the greater part of the amount 
sued for being the cost of these changes and additions In 
this connection, said Beuz testified that, on the 15th August, 
1877, "he gave a message to the telegraph operator at the 
'Junction,' where the building was being erected, to be sent to 
said Chipley at Pensacola, Florida, where he then lived; and 
that afterwards, on the same day, said operator handed him the 
following telegram, which was produced and offered in evi- 
dence;" said telegram being dated at Pensacola, August 15, 
signed by said Chipley, addressed to said R. Beuz, and in these 
words: '"Will have car load of lumber in a few days, and as 
soon as possible." The defendant objected to the admission of 



236 SUPKEME COURT [Dec. Term, 

[Pensacola Railroad Co. v. Schaffer.J 

this telegram as evidence, but without stating any particular 
ground of objection, and dul)' excepted to the overruling of 
the objection. Schaffer and Beuz each testified, also, that by 
the agreement and undei-standing between them, when Schaffer 
undertook to complete the work under the second contract, 
"he was to pay over to Beuz two-thirds of the profits received 
from said railroad company under the contract, and was to re- 
tain the remaining one-third for hitnself." 

" The court charged the jury, among other things, that under 
the written agreement between the raih'oad company and said 
Beuz, substituting the plaintiff for said Beuz, if the jury believe 
that such contract was executed between said defendant and 
Beuz, and that plaintiff assented to said change and substitu- 
tion, and assumed control and management of the work, then 
he is entitled to maintain this action ; provided the evidence 
also reasonably satisfies the jury of the existence of other facts 
necessary to a recover}^ under the rules and instructions alreadj' 
laid down by the court ; and that, in sUch case, the fact that 
plaintiff had agreed to pay said Beuz two-thirds of the profits, 
or net amount received from the railroad company under the 
contract (if such be the fact), would not prevent the plaintiff 
from recovering in this action ; but, if he had no interest in the 
suit, he could not recover." 

The defendant excepted to this charge, and then requested 
the following charges, which were in writing : (1.) " If the jury 
believe the evidence, they should find for the defendant." (2.) 
" If the evidence shows that Schaffer was not the original con- 
tractor for the erection of the buildings and structures named 
in the complaint, but that Beuz was the original contractor, and 
transferred his contract to Schaffer, such transfer did not con- 
stitute Schaffer the original contractor, and he would have no 
right to enforce a lien on the buildings as the original contrac- 
tor." The court refused each of these charges, and the defend- 
ant excepted to their refusal. 

The several rulings of the court on the pleadings and evi- 
dence, the charge given, and the refusal of the charges asked, 
are now assigned as error. 

Stallwokth & Burnett, for appellant. 

John Gamble, contra. 

SOMERVILLE, J. — The action is one for the enforcement 
of a mechanic's lien, under the provisions of our statute. — Code, 
1876, §§ 3440, et seq. 

The first point raised is, whether the plaintiff, Schaffer, can 
be properly regarded as an " original contractor," within the 

Vol. lxxvi. 



1884.J OF ALABAMA. 237 

[Pensacola Railroad Co. v. Schaffer.l 

meaning of the statnte. The record shows that one Bcuz was 
the party witli whom the defendant made tlie first contract for 
the construction of tlie hotel building, in reference to which 
the present controversy arises. Tiiis was in June, 1877. Dur- 
ing the latter part of the ensuing month, tiiis contract was 
transferred by Beuz to the plaintiff, who, b}' consent of the de- 
fendant, proceeded to carry out its provisions by the completion 
of the work. If this transfer had been made without the con- 
sent of the defendant — the Pensacola Railroad Company — there 
might be much force in the argument, that the transferree could 
not enforce the lien claimed ; because it is purely statutory, and 
the statute confers the remedy only on the original contractor, 
and not on one claiming by assignment or transfer from him. 
But such is not the status of the case. It is shown that Beuz, 
after collecting nearly all that was due him under his contract, 
had abandoned it ; and the agreement of July 26th, 1877, 
evinces an intention to substitute the plaintiff in his stead, so 
far as all future transactions were concerned. The agreement 
of the railroad company expressly declares, that they will in the 
future deal with Schaffer, " as if he were the original con- 
tractor" — making all payments to him, as the only authorized 
person whose receipt was to be recognized as good. It does 
not affect the case, that Beuz was not released from liability for 
his breach of contract in the past. The plaintiff entered upon 
the performance of his agreement, upon the faith of the promise 
that he was to be dealt with as " the original contractor." 
Having completed the work, upon the assumed truth of the 
defendant's covenant in this particular, nothing can now be as- 
serted to the contrary, which would operate to the prejudice of 
the plaintiff. The defendant is clearly estopped from now de- 
nying that the plaintiff is an original contractor. 

2. The original of the telegram from Cliipley was shown to 
be in Florida, beyond the jurisdiction of this State. This fact 
rendered the copy admissible, as secondary evidence of its con- 
tents, upon a principle often decided and now well settled. 
Gordon, Rankin & Co. v. Tweedy, 74 Ala. 232 ; Whilden v. 
Mer. cfe PL Nat. Bank, 64 Ala. 1. 

The proceedings before the justice of the peace, in which 
judgments were rendered against Beuz, and also against the 
railroad company as garnishee, in favor of certain employees of 
the former party, were clearly without any binding force on 
the plaintiff, who was no party to the suits. The claims of em- 
ployees are made a- lien by the statute, only on any unpaid bal- 
ance due by the proprietor, or owner, to the contractor who 
employed them. — Code, § 3449 ; Childers v. City of Greenville, 
69 Ala. 108. The railroad company, as garnishee, should have 
protected themselves, by seeing to it that no greater sum was 



238 SUPEEME COURT [Dec. Term, 

[Jaques v. Horton.] 

condemned in their hands than the unpaid balance due bj them 
to Beuz. Schaffer, as we have said, was no party to tiiese pro- 
ceedings, and could not, therefore, be prejudiced by them. 
This is not only the rule of the common law, but is expressly 
declared, in plain terms, by the statute under wliich the pro- 
ceedings are authorized. — Code, 1876, § 3447. It is needless, 
in this view, to consider whether the complaints tiled in the 
justice's court set out the facts necessary to give the court juris- 
diction according to the requirements of section 3446 of the 
Code. 

The action was properly brought in the name of Schaffer, as 
" the party really interested," within the meaning of section 
2890 of the Code. He was not only the transferree of the con- 
tract, which was one for the payment of money, but he pos- 
sessed the exclusive right to collect and receipt for the money ; 
so that payment to no other person would be valid, without his 
order or assent. — Leonard v. Starrs, 31 Ala. 488. The case is 
unchanged by the agreement of the plaintiff to pay Beuz a cer- 
tain part of the profits which he might realize fi-om the trans- 
action. This conferred on Beuz no claim to any portion of the 
specific money that might be collected, but merely made the 
plaintiff his debtor for a fixed per-centage of the profits, in the 
contingency that any shonld be realized, of which there is no 
proof contained in the record. ^ 

The various rulings of the court were clearly free fronv error, 
in the light of the foregoing principles. 

Affirmed. 



Jaques v, Hortou. 

Contested Probate of Will. 

1. Probate of u'ill ; in ivhat county granted; lost vnll. — By statutory 
provision (Code, §2304), the Probate Court of a county in whicli a per- 
son dies, leavin^r assets tlierein, has jurisdiction to take proof of and ad- 
mit to probate his last will and testament, although his domicile was in 
another State, and his will was never probated there ; and if the will has 
been lost or destroyed, without the knowledjie or consent of the testator, 
remaining uncancelled at his death, it may be admitted to probate on 
competent evidence of its execution and contents. 

2. Decision on facts ; when and how revisable on appeal. — When a con- 
test of fact, properly triable before a jury, is by consent submitted to the 
decision of the presiding judge, his decision stands as the verdict of a 
jury, and is not revisable on error or appeal; but, when the law au- 
thorizes a disputed question of fact to be tried by the court without a 
jury, and it is so tried, on testimony delivered viva voce in the presence 

VOL. LXXVI, 



1884.] OF ALABAMA. 239 

[Jaques v. Horton.] 

of the court, while the det'ision is revisable by this court, it will not be 
re versed, unless so manifestly against the evidence that a judge at nisi 
prius would set aside a verdict rendered on the same testimony. 

3. Trial byjunj, in Probate Court. — The Pro])af(> Court, iinHke the 
Cliancery Court, has no power, ex inero molii, to suunnon a jury to deter- 
mine disputed questions of fact, but the right to a trial by jury is given, 
with few excentions, only on the application of eitlier party; and if 
neither demands a jury, the court can not order and summon one. 

4. Contested probate of will ; how tried, and Innv decision revised. 
Under the statutory provision of force prior to 1853 (Clay's Digest, 304, 
§ 35), when the validity of a will was contested, or doubts arose as to its 
validity, it was made the imperative duty of the judge to summon a jury 
to try the issue; but, under the statutes since of force (Code of 1853, § 
1634 ; Rev. Code, § 1953 ; Code of 1876, § 2317), a trial by jury is not im- 
perative on the court, but is given " on the application of either party." 

5. Same ; same. — If, in such case, a jury is demanded and summoned, 
but is afterwards dispensed with by consent, and the issue submitted to 
the decision of the court, the case stands as if no jury had been demanded : 
the decision of the court is revisahh; by this court on appeal, but it will 
not be reversed, under the rule above stated, unless clearly contrary to 
the evidence. 

6. Refreshing memorif of witness by memorandum or entry. — A witness 
may, during his examination, assist or refresh his memory by reference 
to a memorandum or entry made at or about the time of the occurrence 
of the facts, whether made by himself or another person, if he knows it 
to be correct, and can, after referring to it, testify from indepen<lent rec- 
ollection ; and it is immaterial whether the paper referred to be the 
original memorandum, or a copy thereof known by him to be correct. 
But the rule is subject to the limitation, that the witness must be able to 
testify that the original, when made, was a true statement of the facts, 
and the copy must be verified; and he can not be allowed to inspect a 
paper which purports to be a copy, but which is not known or recognized 
by him, nor verified as a true copy of the original. 

7. Same ; copy of lost will. — On application for the probate of a lost 
will, a paper purporting to be a literal copy thereof being made an exhibit 
to the proponent's petition, the person who made it not being produced, 
nor his absence accounted for, another witness, who had seen or read the 
will, can not inspect the alleged copy, for the purpose of refreshing his 
recollection of the contents of the original. 

8. Specific objection to evidence. — An objection to the admission ot evi- 
dence, on grounds particularly specified, is an implied waiver of all 
other grounds; and this court, in reviewing the overruling of the objec- 
tion, will consider only the grounds specified. 

9. Burden of proof as to lost will. — On application for the probate of a 
will alleged to have been lost, which is shown to have been in the posses- 
sion of the testator at one time, but is not found after his death, tlie pre- 
sumption is that he destroyed it (uiimo re.rocandi ; but this presumption 
may be rebutted, and the onus of rebutting is on the proponent. 

10. Proof of lost will. — Although a will is required to be attested by 
two witnesses (Code, § 2294), a lost will may be proved by a single wit- 
ness, who read it, and who remembers its contents ; but his testimony 
must be clear and positive, and of such a character as to leave no rea- 
sonable doubt as to the substantial parts of it. 

11. Degrees of secondary evidence. — When secondary evidence is ofll'ered 
which, e.i- natura rei, supposes a higher degree of secondary evident-e, the 
best should be produced; as, a certified or examined copy of an instru- 
ment required to be recorded, or a letter-press copy of a writing, if shown 
to be in existence ; but, where there is no ground for legal presumption 
that better secondary evidence exists, any proof is received which is not 



240 SUPREME COURT [Dec. Term, 

[Jaques v. Horton.] 

inadmissible by the rules of law, unless the party objectinj; can show that 
better was known to the other, and might have been produced. 

12. Proof of lost mill by copy, or by oral evidence. — When the propo- 
nent of a lost will produces, and annexes as an exhibit to his petition, a 
paper which purports to be a literal copy of the will, but fails to prove its 
correctness as a copy, he may abandon the attempt, and prove the con- 
tents of the lost paper by competent parol evidence ; but the failure to 
prove the alleged copy, under such circumstances, would be a circum- 
stance to be considered by the jury in determining the credibility and 
sufficiency of the other evidence. 

1.1 When exception is necessary ; revision of probate decree on fads. 
On a contest of the probate of a will, tried before the court without the 
intervention of a jury, a bill of exceptions is necessary (Code, §§ 3957-60) 
to enable this court to revise the decision on the facts. 

Appeal from the Probate Court of Morgan. 

Tried before the Hon. E. M. Russell. 

In the tnatter of the probate of a paper which was pro- 
pounded as a copy of the last will and testament of Dr. Jacob 
Y. Cantwell, deceased, who died in said county of Morgan, on 
or about the 11th February, 1883, as the proponent's petition 
alleged, leaving assets therein. T\\q, petition was filed on the 
18th July, 1883, by Mrs. R. D. Hortou, who was a niece of 
said decedent, and to whom certain real estate in the town of 
Decatur was devised by the will ; and the probate was contested 
by Mrs. Margaret Jaques, who was a sister of said decedent. 

The paper which was set out with the petition, as a copy of 
the will, was without date, and purported to be attested by H. 
G, Thomas and S. P. Rather as subscribing witnesses , and it 
contained eight items, as follows : 1st, a direction for the 
payment of debts and funeral expenses ; 2d, a legacy of $200 
to Mrs. Margaret Jaques, the contestant ; 3d, a legacy of $300 to 
Mrs. Scott, another sister of the testator; 4th, a legacy of $500 
to Mrs. Startsman, another sister ; 5th, a devise of certain real 
estate in Decatur to Mrs. R. D. Horton, "free from the debts, 
control or manageuient of her husband ;" 6th, a devise of a 
storehouse and lot in Decatur to the infant son of Mrs. Eiorton ; 
7th, a residuary devise and bequest to Thomas J. Cantwell, a 
nephew of the testator ; and 8th, the nomination of said Thomas 
J. Cantwell as executor. The probate of the paper as a will 
was contested on these grounds : 1st, " because said paper is 
not in fact the last will and testament of said Cantwell ;" 2d, 
" because said supposed will was not duly executed ;" 3d, " be- 
cause said paper is but an abstract of an original will, if one in 
fact was ever made, and the original was revoked and cancelled 
by said Cantwell during his life ;" 4th, " because said J. Y. 
Cantwell was, at the time of his death, a resident citizen of 
Mansfield, Oliio, and said supposed will has never been ad- 
mitted to probate in Ohio, and this court (to-wit, the Probate 
Court of l^^organ county, Alabama) has not, and can not 

Vol, ; xxvi. 



1884.] OF ALABAMA. 241 

[Jaques v. Horton.] 

acquire, jurisdiction to probate the same in the first instance ;" 
5th, " because there are but two attesting witnesses to said 
supposed will, whereas the law of Ohio, where the testator was 
domiciled at the time of his death, requires three witnesses." 
The proponent demurred to the 4tli and 5th specifications, but 
the record does not show any action by the court on the de- 
murrer. The contestant demanded a trial by jury, and a jury 
was regularly summoned ; but afterwards, by written consent 
of both parties, entered of record, a jury was dispensed with, 
and the case was submitted to the decision of the presiding 
judge. On the evidence adduced, all of which the bill of ex- 
ceptions purports to set out, the court admitted the paper to 
probate, except the 4th item, as the last will and testament of 
said Cantwell ; holding that the proof showed its due execution 
by the testator, its subsequent loss, and that it was not revoked 
or destroyed by the testator himself. 

On the hearing, as the bill of exceptions states, the propo- 
nent introduced said 11. G. Thomas as a witness, one of the 
subscribing witnesses to the paper propounded as a will, who, 
after testifying to his acquaintance and intimacy with said 
Cantwell, the proponent's relations with him (said C.,) and his 
death on the 11th February, 1883, then stated: "I did wit- 
ness a will for Dr. Cantwell, in 1880; it was in Decenjber, 
1880, between the 5th and the 20th day. It was written in 
my office by Dr. Cantwell." The proponent then proposed, 
" the above being all the evidence then before the court, to 
hand to said witness the paper purporting to be a copy of the 
last will and testament of said Cantwell, the same not being 
written by said witness, and to have him read it, solely for 
the purpose of refreshing his recollection of the contents of 
the will ; stating to the court, at the same time, that after the 
witness had read the paper, for the purpose aforesaid, propo- 
nent would ask him this question : ' Now, independent of the 
instrument read by you, purporting to be substantially a copy 
of the will of Dr. Cantwell, state, if you can, the substance of 
the will which, at Dr. Cantwell's request, you witnessed in De- 
cember, 1880.' Contestant objected to the witness reading the 
paper," and duly excepted to the overruling of his objection ; 
and the paper being then read to him, and the said question 
propounded to him, the witness proceeded to state his recollec- 
tion of the contents of the will wliich he had attested. Several 
other exceptions were reserved by the contestant to the rulings 
of the court in admitting evidence ; and these several rulings, 
together with the decree admitting the paper to probate, are 
now assigned as error. 



16 



242 SUPKEME COURT [Dec. Term, 

[Jaques v. Horton.J 

D. p. Lewis, C. C. Haeeis, and Cabaniss & Waed, for 
the appellant, 

Walkee & Walkee, and R. C. Beickell, contra. 

CLOPTON, J. — By the express terms of the statute, the 
Court of Probate of Morgan county iiad jurisdiction to take 
proof, and to admit to probate the will of the testator, it being 
shown that he died in that county, leaving assets therein, though 
his domicile may have been in another State, And if the will 
has been lost, or destroyed, without the consent or knowledge 
of the testator, and remains uncancelled at his death, the court 
may admit it to probate on competent evidence of its execu- 
tion and contents, — Code, 1876, § 2304; Appe?'807i v. Cottrell, 
3 Port. 51 ; McBeth v. McBeth, 11 Ala. 596, 

In Nooe v. Garner., 70 Ala, 443, it was held, as the result of 
the previous decisions, that when a contest of fact, properly 
triable before a jury, is, by consent, submitted to the judge 
presiding for decision, this court will not review the finding of 
the judge on the facts, any more than it would tlie finding of a 
jury. It is not assignable as error. When the law authorizes 
the disputed question to be tried, and it is tried, by the court 
without a jury, on testimony viva voce in the presence of the 
court, the rule is, not to reverse the finding unless it is so mani- 
festly against the evidence, that a judge at nisi ])rius would 
set aside the verdict of a jury, rendered on the same testi- 
mony. 

Section 702 of Code of 1876 gives judges of probate author- 
ity " to cause jurors to be impanneled and sworn, in any mat- 
ter of fact pending before them, in which the riglit to a jury 
trial is given by law." Wlien a jury is impanneled and sworn, 
under authority of the statute, it becomes, j!?n> hac vice., a constitu- 
ent of the court ; and the judgment of the court in such cases is 
revised in the same manner as the judgment of a court where a 
jury is a constituent of the court itself. Where the statute 
authorizes a jury, only on the application of either party, it is 
the duty and function of the judge to hear the evidence, and 
determine the issues, without the aid and intervention of a 
jury, if neither party requires one. With few exceptions, a 
trial by jury in the Court of Probate is given by law, only on 
the application of either party. If such application is not 
made, the effect is to dispense with a jury trial, and the court 
is without power to summon and impannel a jury. Unlike 
the Chancery Court, it can not, ex mero motu., invoke the aid 
of a jury to determine disputed questions of fact. 

The statute, in force prior to the Code of 1852, made it im- 
perative on the judge, before awarding any judgment or de- 

VOL, LXXVI, 



1884.] OF ALABAMA. 243 

[Jaques v. Horton.] 

cree, to snintnon and iinpannel a jury to try the issues, when 
the validity of a will was contested, or doubts arose as to its 
validity. Clay's Dig. 304, § 35. Under the operation of this 
statute, the decisions in the case of Driver v. IJndspeth, 16 
Ala. 348, and in previous cases, were declared. A material 
change, in this respect, was introduced by section 1634 of 
the Code of 1852, which constitutes section 2317 of Code 
1876; from being imperative, a trial by jury is left to the op- 
tion of either party. The statute now provides, that when 
there is a contest of the validity of a will, properly instituted, 
" an issue must be made up, under the direction of the court, 
between the person making the application as plaintiff, and the 
person contesting the validity of the will as defendant ; which 
issue must, on the application of either party, be tried by a 
jury." Section 2320, which authorizes the judge to direct the 
sheriff to summon such number of persons as a jury, to sit upon 
such trial, as may be necessary, or, on the demand of either 
party, to cause fifteen persons to be sworn and summoned, in 
the same maimer as jurors are drawn and summoned for the 
Circuit Court, must be construed in its relation to, and in 
pari materia with section 2317. It is not made the impera- 
tive duty of the judge to cause a jury to be summoned, in 
every case of a contested will, only to be discharged, if neither 
party should require a jury. The duty does not arise, until 
one of the parties makes application for the trial of the issues 
by a jury. 

On the application of both parties, a jury was drawn and 
summoned. On the day first appointed for the trial, the par- 
ties in writing dispensed with trial by jury, and consented to 
try the case before the judge. Dispensing with a trial by jury, 
restored the case to the position in which it would have been, 
if neither party had made application, in the first instance, for 
a jury. The judge, in hearing the evidence and determining 
the issues, performed a duty which is imposed on him by law, 
constituting him judge of the facts and the law. His finding 
on the facts is revisable, but will not be reversed, unless so 
clearly opposed to the evidence, that a new trial would be 
granted, if the verdict of a jury had been rendered on the same 
evidence. — Nooe v. Garner^ 70 Ala. 443; Blankenship v. 
Nimmo, 50 Ala. 506. 

In Acklen v. Hickman, 63 Ala. 494, we held, that a witness 
had a right to consult a memorandum in aid of his recollection, 
when, after examining a memorandum made by himself, or 
known and recognized by him as stating the facts truly, his 
memory is thereby so refreshed, that he can testify to the facts 
as matter of independent recollection ; and if the witness, after 
examining the memorandum, can not state the facts from in- 



244 SUPREME COURT [Dec. Term, 

[Jaques v. Horton.] 

dependent recollection, but can testify that he knew the contents 
of the memorandum at or about the time it was made, and knew 
them to be true, both the memorandum and the testimony of 
the witness are admissible. And in Calloway v. Va?"ner (present 
term), we held, that a witness should be allowed, for the pur- 
pose of refreshing his memory, to inspect a copy, made and 
verified by him, of original entries, which he had made in a 
book at or about the time of the occurrence of the facts, and 
which he knew to be true. We said : " The rule is subject to 
the limitation, that the witness must be able to testify that the 
original entry, when made, was a true statement of the facts, 
and the copy must be verified." The purpose of the rule is, 
to assist, for the ascertainment of truth, a recollection which 
the witness, by invoking or requiring the aid of a memo- 
randum, admits is indistinct or uncertain. An untrue or inac- 
curate memorandum, instead of affording aid in recollecting 
thefacts^ to which the witness must testify as matter of inde- 
pendent recollection, tends to suggest what is not true, and to 
mislead the memory of the witness. While the tendeiicy has 
been to relax the rule to some extent, we apprehend that no 
court has so far relaxed it, as to allow a witness, for the purpose 
of refreshing his memory, to inspect a paper purporting to be 
a copy, but which is not known or recognized by the witness, 
nor verified as a true copy of the original. 

A paper, purporting to be a copy of the lost will, was ex- 
hibited to the witness, Thomas, for the avowed purpose of 
refreshing his recollection of its contents. It professes to set 
out the contents of the will in exact phraseology, as drafted in 
due form, and executed with due formalities. The effect of 
inspecting such a paper, on the mind of the average witness, is 
to obscure, or confuse, or warp the memory. The alleged copy 
accompanied the application of the proponent to probate the 
will, and was produced by her on the trial. If it is a true 
copy, it was prepared by some one, who had the original before 
him. The proponent has the power to give information in 
what manner, and from whom it was obtained. When she 
presented it to the Court of Probate as a copy of the will, and 
prayed that, "after proper proceedings and proof, it may be 
probated, and admitted to record as the true will," she avouched 
its correctness, and asserted her readiness to establish it sub- 
stantially ; yet no evidence was offered, or proposed to be 
offered, to show by whom it was made, or from whom orwhen 
procured. To allow a witness, under such circumstances, to 
inspect such paper, for the purpose of refreshing his memory 
of the contents of the original, would impair the reliability of 
testimony, endanger the rights of litigants, and obstruct the 
due administration of the law. 
Vol. lxxvi. 



1884.] OF ALABAMA. 245 

[Jaques V. llorton.] 

Had the appellants stated, as one of the grounds of objection 
to the introduction of the copy of the will, the insufficiency or 
absence of evidence to establish its correctness as a copy, it may 
be conceded, that the ol)jection would have been sustained ; 
but, having specified particular grounds of objection, they must, 
in this court, be confined to theni, and be held as having im- 
pliedly waived all other grounds. — King v. Pope^ 28 Ala. 601. 
The same grounds of objection could have been as well pre- 
sented, if the truthfulness of the copy had been proved by a 
single witness, and to these alone was the attention of the 
primary court called. 

A will, attested by two witnesses, is effectual, under our 
statutes, to pass real or personal property ; and admission to pro- 
bate in the State of the domicile is not a condition precedent 
to the probate of the will, where the testator leaves assets in 
this State.— Code, 1876, §§ 2294, 2304. Sufficient search ap- 
pears to have been made for the original will, to let in secondary 
evidence of its contents, after proof of its execution and exist- 
ence ; and whether the will was destroyed by the testator aw mo 
revocandi, or by some one else without his consent or knowledge, 
or lost by accident, is a question not going to the admissibility 
of a verified copy, but a fact to be determined by the jury, if 
there be one, and if not, by the judge, on a consideration of 
all the circumstances proved. Where the will is shown to have 
been in the possession of the testator, and is not found at his 
death, the presumption arises that he destroyed it for the pur- 
pose of revocation ; but the presumption may be rebutted, and 
the burden of rebutting it is on the proponent. The ascertain- 
ment of this fact will cast no light on the authentication of the 
copy, and is not preliminary to its introduction. The question, 
in such case, is, whether the will, of which the proposed paper 
is a copy, was revoked, or did the testator, at the time of his 
death, believe and intend it to be in existence as a valid will. 
Suyden v. St. Leonards, 1 Prob. Dec. 217 ; 1 Whar. on Ev. 
§ 138 ; Holland v. Ferris, 2 Brad. 334. 

It is observed by Swinburne, if a will be made, and lost by 
casualty, two unexceptionable witnesses, who did see and read 
it, and remember its contents, are sufficient for proof thereof in 
form of law. We can conceive no valid reason, why there 
should be any difference in the quantum of proof necessary to 
establish the contents of a lost will, and the contents of a lost 
deed, or other written instrument. In either case, the proof 
must be satisfactory, and probably more caution should be 
observed in the case of a lost will, as the testator can not be 
heard in respect to the disposition he has made of his estate, 
and as a will is required to be attested by two witnesses. 

While the doctrine, that there are no degrees in secondary 



246 SUPREME COURT [Dec. Term, 

[Jaques v. Horton.] 

evidence, has not prevailed to its fullest extent, in this State, 
we are not prepared to adopt a stringent extension of the rule, 
which excludes all secondary, until the absence of the primary 
evidence is accounted for, to secondary evidence. Where the 
secondary evidence offered, ex natura rei, supposes a higher 
degree of secondary evidence, the best should be produced. 
"But, where there is no ground for legal presumption that 
better secondary evidence exists, any proof is received, which 
is not inadmissible by other rules of law, unless the objecting 
party can show that better evidence was previously known to 
the other, and might have been produced ; thus subjecting him, 
by positive proof, to the same imputation of fraud, which the 
law itself presumes when primary evidence is withheld." 
When a certified or examined copy of a paper required to be 
recorded, or a letter-press copy of a writing, is shown to be in 
existence, it is better evidence than the memoriter statements 
of a witness, and its production should be demanded. — 1 Green, 
on Ev. § 84, n. ; Cornett v. Williams, 20 Wall. 226. 

Although the proponent produced a paper purporting to be 
a copy, and it may be expected that she was prepared to estab- 
lish it, if she is unable to do so, she may abandon the attempt, 
and prove the contents by competent parol evidence. The 
failure to prove the copy, under such circumstances, is a matter 
to be considered in weighing the evidence, and determining its 
credibility and sufficiency. The testimony of a single witness, 
who has read and remembers the contents of the will, may be 
sufficient. Such evidence, however, should be clear and posi- 
tive, — not vague or uncertain recollection, — and of such char- 
acter, " as to leave no reasonable doubt as to the substantial 
parts of the paper." — Dickey v. Malechi, 6 Mo. 177; 3 Red. 
on Wills, 15 ; Renner v. Bank of Columbus^ 9 Wheat. 581 ; 
SJwrter v. Sheppard, 33 Ala. 648. 

Neither of the specified grounds of objection to the intro- 
duction of the copy is well founded. We find nothing in the 
other objections to evidence necessary to be considered. 

We are precluded from revising the finding of the court on 
the facts, there not appearing to have been any objection made, 
or exception taken. The statute provides, that '' a bill of ex- 
ceptions may be tendered to the probate judge of the court 
trying the validity of the will, specially setting ft)rth the mat- 
ters objected to, and the evidence in relation to the same, with 
such other matters as will present points raised fully and fairly 
before the appellate court." — Code, 1876, § 3959. The pro- 
vision of the statute, that "a bill of exceptions shall not be 
re(juired. where the error con)plained of appears on the record," 
does not apply when the error can be made apparent only by a 

Vor,. Lxxvi. 



1884.] OF ALABAMA. 247 

[Carlisle, Jones & Co. v. Campbell.] 

hill of exceptions. — Tapp v. Cox^ 56 Ala. 553 ; Jones v. Jones^ 
42 Ala. 218. 

If there was sufficient competent evidence to sustain the 
finding of the court, tiie error in allowing the witness, Thomas, 
to refresh his memory by inspecting the copy, would not 
operate a reversal. But, as his was the only testimony tending 
to prove the contents of the will, for this error the judgment 
of the court must he reversed. 

Reversed and remanded. 



Carlisle, Jones & Co. v, Campbell. 

Action on Written Contract for Delivery of Cotton. 

1. Statute of frauds; promise to paij debt of (mother. — When a creditor 
accepts from a third person, in payment and satisfaction of liis debt, tlie 
written note or obligation of such third jierson, the new contract is an 
original undertaking, and is not within the statute of frauds (Code, 
§ 2121, subd. 3) ; and l)eing supported by a sufficient consideration as 
against the i)erson signing it as principal, it is also supported by a suffi- 
cient consideration as against another person who, at the same time, 
signs it as surety. 

2. Execution of written contract; signature by mark. — When a note, or 
other written contracit, is signed by the maker or promisor by mark only, 
his name being written for him by tlie payee or promisee, this is not a 
valid execution of the instrument. 

Appeal from the Circuit Court of Blount. 

Tried before the lion. L?:uoy F. Box. 

This action was brought by the appellants, suing as partners, 
and as the assignees of James M. Wooten, against A. W. 
Perry and J. R. Campbell ; and was founded on the defend- 
ants' written promise "to pay to J. M. Wooten or order, on the 
first day of November, one thousand pounds of low-middling 
cotton, for value received." This instrument was dated at 
Blountsville, February 5th, 1881, and the names of both of the 
defendants were signed to it ; but Campbell's signature was 
made by mark only, and there was no attesting witness to it. 
The case was tried, as the bill of exceptions states, "on issue 
joined on the pleas of non est factum and the statute of frauds; 
which latter })lea was pleaded in short by consent, and was 
founded on tiie 3d subdivision of section 2121 of the Code." 
On the trial, the plaintiffs introduced evidence tending to show 
that, on and prior to the said 5th Fei)ruary, 1881, the date of 
said instrument sued on, "said J. M. Wooten, the payee of said 



248 SUPREME COUET [Dec. Term, 

[Carlisle, Jones & Co. v. Campbell.] 

instrument, held and owned a note against one A. J. Cainpl)ell ; 
tliat the said instrument sued on was given therefor, and foran 
extension of the time of payment thereon, from the date of 
said instrument to its maturity ; that said instrument was given 
in consideration of said Wooten's surrender of said note on A. 
J. Campbell, which was in fact surrendered, or a receipt given 
against the same; and that said instrument was assigned by said 
Wooten, before its maturity, to these plaintiffs. The evidence 
on the part of said J. R. Campbell tended to show, that he was 
a surety of said A. W. Perry, and that the obligation of said 
A. J. Campbell, or the receipt given against tlie same, was 
delivered by said Wooten to said A. W. Perry. Said defend- 
ant Campbell, in his examination as a witness in his own behalf, 
stated, that he did not execute the said instrument sued on, nor 
authorize said Wooten to execute it for him, either in his 
presence, or otherwise ; but said Wooten testified, that he signed 
the name of said Campbell to said instrument, by said Camp- 
bell's direction, and in his presence; and said Wooten was sup- 
ported in this by the testimony of another witness, tending to 
corroborate his statement as to the signing of said Campbell's 
name. Said Wooten stated, also, on cross-examination, that he 
knew, at the time he signed said Campbell's name to said in- 
strument, that he was only the surety of Perry." 

"Upon this evidence, without more upon the issues named," 
the plaintiffs requested the following charges to the jury: 1. 
"Under the evidence in this cause, if believed by the jury, as 
to the plea of the statute of frauds, they must find the issue in 
favor of the plaintiffs." 2. "If tlie jury believe, from the 
evidence, that Wooten agreed, for and in consideration of the 
paper sued on, to surrender a debt held by him on another 
Campbell, then they must find the issue on the statute of frauds 
in favor of the plaintiffs." 3. "Under the evidence in this 
case, the undertaking on the part of said defendant Camp- 
bell is an original undertaking, and not an undertaking to 
answer for the debt of another under the statute of frauds." 
4. "If the jury believe, from the evidence, that the name of 
said Campbell was signed to said instrument by Wooten, in the 
presence, and by the direction of said Campbell, then the sig- 
nature of said Campbell's name, under such circumstances, was 
really Campbell's signing, and was not within or void b}' the 
statute of frauds." These several charges were refused by the 
court, and exceptions were duly reserved by the plaintiffs to 
their refusal ; and this refusal is now assigned as error. 

IIamill & Lurk, for the appellants, cited Browne on Statute 
of Frauds, § 193 ; Underwood v. Lovelace, 61 Ala. 155 ; Thorn- 
to)i 0. Crulce, 73 Ala. 321 ; Lehman v. Levy, 69 Ala. 48; Liui- 
Vor,. i.xxvi. 



1884.] OF ALABAMA. 249 

[Carlisle, Jones & Co. v. Campbell.] 

ledge V. Toictisend, 38 Ala. 706; Carey v. Brabasfm, 10 Abb. 
Pr. 368; Bates v. Starr, 6 Ala. 697; Merrill v. Smith, 12 Ala. 
569; Martin v. Black, 21 Ala. 721; SummerhilL v. Tapp, 
52 Ala. 227; Br. Bank v. James, 9 Ala. 949. 

L. R. Hanna, contra, cited Bickley v. Keenan (& Co., 
60 Ala. 293 ; 3 Parsons on Contracts, 10, and cases cited ; 
37 Amer. Dec. 148; 31 75. 612; 49 Ih. 347, 637. 

STONE, C. J. — This case appears to have gone off in the 
court below on the defense of the statute of frauds. The tes- 
timony tends to show, that another Catnphell, father of the one 
sued, was indebted to Wooten, and that the contract sued on 
was executed by Perry and the younger Campbell, in payment 
and substitution of the debt of the elder Campbell. If this be 
80, and if, by virtue of the new agreement, the debt of the 
elder Campbell was extinguished, or ceased to be a binding, 
subsisting indebtedness, then the substituted contract became 
an original undertaking based on a 8ufli(Ment corisideration, and 
the statute of frauds has nothing to do with the case ; and if 
on such surrender, or cancellation of the debt of the elder 
Campbell, Perry signed the new agreement as principal, and 
Campbell, as part of the agreement, signed contemporaneously 
as his surety, then the consideration on which Perry's promise 
was based, etjually upheld that of the younger Campbell, his 
Burety. — Rutledge v. Toimisend, 38 Ala. 712; Underwood v. 
Lovelace, 61 Ala. 155; Dunbar v. Smith, 66 Ala. 490; Tham- 
ton V. Guice, 73 Ala. 321. 

Under the principles above declared, charges numbered two 
and three ought to have been given. 

The testimony tends to show, that Wooten, the payee of the 
contract sued on, executed the paper declared on, so far as 
Campbell's name appears thereto. Campl)ell filed a sworn 
plea, denying its execution. We have shown that the cancel- 
lation of the elder Campbell's indebtedness would uphold the 
promise of Perry, which it is not denied he made. We have 
shown, also, that this consideration would equally uphold a 
promise made by Campbell as his surety. But, to have that 
effect, Campbell's promise must have been in the form of a 
co-maker of the contract, signed thereto bef<»re it was consum- 
mated by delivery. — Jackson v. Jackson, 7 Ala. 791. Any 
contract not so signed by him, or by his authority, would not 
bind him. The testimony tends to show, that Wooten, the 
promisee, signed the name of Campbell to the contract declared 
on, and which purports to be signed by Campbell's mark. Can 
a promisee become the agent of the promisor for such a service ? 
We think not. — Wright v. Dannak, 2 Carapb. 203 ; Rayner v. 



250 SUPREME COURT [Dec. Term, 

[Brown v. Beatty.] 

LintJwrnc\ 2 C. & P. 124 ; Far ehr other v. Simmons, 5 B. & Aid. 

333 ; Shaw v. Finney, 13 Mete. 453 ; 3 Pars, on Contr. 6th Ed., 

10. and notes, Tlie fourth cliarge asked was rightly refused. 

Reversed and remanded. 



Bi'OAvn V. Beatty. 

Statutory Action for Unlawful Detainer. 

1. When (tctlon lies. — The vendor of lands can not maintain an action 
of unlawful detainer (Code, § 3697) against a purcliaser, who, having 
originally entered as tenant under a lease, which was afterwards abro- 
gated, has continued in possession under an executory agreement for the 
purchase of the lands, and has failed to comply with the stipulations of 
said contract, whereby lie has forfeited all rights under it. 

Appeal from the Circuit Court of Tuskaloosa. 

Tried before the lion. John Mookk. 

This was a statutory action for the unlawful detainer of land, 
commenced in a justice's court on the 1st September, 1883, by 
Randall R. Brown against Wm. M. Beatty, and removed by 
appeal, at the instance of the plaintilf, into the Circuit Court. 
The complaint alleged, that the defendant entered into the pos- 
session of the premises, on the 6th November, 1880, under a 
contract (»f lease from plaintiff ; that this contract was abro- 
gated and annulled, by mutual agreement of the parties, on the. 
23d July, 1H81, by which plaintiff agreed to sell, and the de- 
fendant and another agreed to purclrase the premises, on certain 
terms then agreed on between them, as evidenced by the con- 
tract then reduced to writing and signed by i)oth parties, which 
was set out in the complaint; that defendant and his co-pur- 
chaser failed to comply with the stipulations of said contract 
on their part, whereby they forfeited all rights under it; that 
plaintiff thereupon notified them that he rescinded the con- 
tract, and made a written demand of possession ; that defendant 
refused to surrender the possession, though his co-purchaser 
disclaimed possession, and consented that plaintiff might enter, 
ifec. The court sustained a demurrer to the complaint, and its 
judgment is now assigned as error. 

A. C. Hargrove, for appellant. 

Jno. M. Martin, contra. 
Vol. lxxvi. 



1884.J OF ALABAMA. 251 

[Wliite V. Equitable Nuj)tial Benefit Union.] 

SOMERVILLE, J. — An action of unlawful detainer can 
not he maintained in the present case. The defendant is shown 
to have been placed in possession of the premises sued for, 
under a contract oi purchase from the plaintiff, and is claiming 
ownership, presumptively, under this written evidence of title. 
It may be tiiat the legal title of the lands is in the plaintiff, 
and that he is entitled to recover possession of them, by reason 
of the defendant's forfeiture of his right of possession and 
title, under the express stipulations in the contract of sale and 
purchase. But, in the absence of all relationship of landlord 
and tenant, the (piestion involved is necessarily one as to the 
merits of the title. There is no invasion by the defendant of 
the prior actual possession of the plaintiff, made wrongful by 
an unlawful detention after demand in writing. The interest 
acquired by defendant, under his contract of purchase, was 
more than a mere " possessory interest," within the meaning of 
the statute defining an unlawful detainer. — Code, 1876, § 3697. 
It was an equitable title, capable of being perfected into a legal 
one, by the performance of certain specified conditions. 
Whether these conditions have been performed, and whether, 
therefore, tiie title has become invested in defendant under the 
contract, may be the very issue for trial in the cause. This 
would involve a direct inquiry into " the estate, or merits of 
the title^'' which is expressly prohibited by statute, being more 
properly the subject of investigation in an action of ejectment. 
Code, 1876, § 3704; Houston v. Fariss & McCurdy, 71 Ala. 
570; Beck v. Glenn, 69 Ala. 121; Womack v. Powers, 50 
Ala. 5 ; Russell v. De.^)lous, 29 Ala. 308 ; Trial of Title to 
Land (Sedgw. & Wait), § 94. 

The demurrer to the complaint was properly sustained, and 
the judgment of the Circuit Court is affirmed. 



White V, Equitable Nuptial Benefit 
Union. 

Action on Policy of " Marriage Insurance.^'' 

1. Contract of marringe-hrokoge. — A marriage-brokage contract is 
an agreement for the payment of money, or other compensation, for the 
procurement of a marriage; and it is held void on grounds of public 
policy, although there may be no fraud on either party. 

2. Contracts in restraint of marriage. — Subject to modifications and 
limitations by the application of special rules, all contracts, whether ex- 
ecuted or executory, creating a general prohibition of marriage, are con- 
trary to public policy, and are void ; but conditions in partial restraint of 



252 SUPREME COURT [Dec. Term, 

[White V. Equitable Nuptial Benefit Union.] 

marriage, in respect to time, place, or person, if reasonable in them- 
selves, not materially and practically creatinjj an undue restraint upon 
the freedom of choice, nor operating in terrorem, are valid. 

4. Contract or policy of marriage insurance. — Under the charter of 
the defendant in this case, a private corporation, the object of which is 
declared to be " to unite acceptable young people in such a way as to 
endow each with a sum of money, not to exceed $6,000, to be paid at 
marriage or endowment, according to the regulations adopted ; " a cer- 
tificate of membership containing these provisions, "that no member 
will be entitled to any benefit whatever, who marries in less time than 
three months from the date of his certificate," and tliat " every member 
who shall have been in good standing, for at least three months prior to 
his marriage, shall be entitled to $40 per month upon each $1,000 named 
in his certificate, for each whole month of his membership, provided that 
the same shall never exceed $3,000, or so much thereof as shall be 
realized from one marriage assessment of all the members of this class," 
— is not a marriage- brokage contract, but is void on grounds of public 
policy, as operating an undue restraint of marriage, by offering an in- 
ducement for its indefinite postponement. 

4. Same; wager-policy. — Such certificate being procured for the benefit 
of a third person, who was not related to the member by consanguinity 
or affinity, but who was to pay the dues and assessments, and was to re- 
ceive two-thirds of the proceeds when collected, the contract is in the 
nature of a wager policy of insurance, and is void on principles of public 
policy. 

5. Action against corporation, and individual corporators ; discontinu- 
ance. — In an action commenced by attachment against three persons by 
name, who are described in the affidavit and writ as constituting a pri- 
vate corporation, and who are so named and described as defendants in 
the margin of the complaint ; while the complaint declares against the 
corporation, describing it as composed of the persons so named ; going 
to trial on such complaint, without objection, operates as a discontinu- 
ance of the action against the individuals, and converts it into an action 
against the corporation as sole defendant. 

6. Action on illegal contract. — The courts will not lend their aid to en- 
force an executory illegal contract ; and if a contract has been executed 
which contravenes good morals or public policy, the parties being in pari 
delicto, the courts will not interfere at the instance of either party with 
rights acquired by tin; other. 

Appeal from the Circuit Court of Madison. 

Tried before the Hon. II. C. Speake. 

This action was brought by Alex. L. White, and was com- 
menced by original attachment, which was siiod out on 27th 
November, 1882. In the affidavit for the attachment, and in 
the writ of attachment, the defendants were described as 
" Oscar R. Hundley, William A. McNeely, and Alexander Ers- 
kine, jr., constituting the Equitable Nuptial Benefit Union, 
organized under the laws of Alabama;" and in the original 
statement of the parties' names, in the complaint, the 
same three persons were named as defendants, with the 
addition of the words, " who constitute the Equitable 
Nuptial Benefit Union;" while, in the body of the com- 
plaint, the plaintiff declared against " the Equitable Nuptial 
Benefit Union, a corporation composed of the defendants, Oscar 

Vol. lxxvi. 



1884.] OF ALABAMA. 263 

[White V. Equitable Nuptial Benefit Union. J 

E,. Hundley, William A. McXeely, and Alexiinder Erskine, jr.> 
and duly incorporated under the laws of Alabama." 

The action was founded upon a contract, called in the com- 
plaint " a certain marriage insurance policy," which was dated 
August 14th, 1882, under the corporate seal of said association, 
signed by its president and secretary, and in these words : 
"In consideration of the representations, agreements, covenants 
and warranties, as stated in an application bearing even number 
herewith, and of a membership fee of nine dollars, the receipt 
of which is hereby acknowledged, we do receive as a member 
George B. Vanderventer, of Birmingham, Alabama. The said 
membership, and this certificate, is granted by virtue of au- 
thority vested in said Union by the State of Alabama, and is 
accepted by said member, subject to the following rules, regu- 
lations, and conditions : 1. Assessments shall be collected of 
members for the purpose of paying marriage benefits. 2. As- 
sessments shall be due and payable at the office of the Uniou, 
in lluntsville, Alabatria, on the 14th day of each month subse- 
quent to the date of this certificate. 3. It shall be the duty of 
the officers to mail to each member, as often as may be neces- 
sary to keep them advised of the times at which assessments 
are due, the coupon notices adopted by this Union, and also to 
furnish full information as to all disbursements of the Benefit 
Fund ; giving names of beneficiaries, postoffice address, and 
amount paid each. 4. The monthly assessment due on this cer- 
tificate is thirteen dollars and twenty cents ($13.20), which 
amount shall never be increased, except by a majority vote of 
all the policy-holders. 5. The annual dues on this certificate 
shall be eight dollars ($8), which must be paid on the 14th 
day of September of each year of membership, at the office in 
Huntsville. 6. It shall be the duty of the officers of the Union 
to notify each member, by mail or otherwise, of the date when 
this annual due is payable, at least thirty days previous to the 
time of the payment of the same. 7. The mailing of notices 
[of] dues and assessments, at the postoffice in Huntsville, shall 
be considered legal and sufficient notice. 8. A member failing 
to pay annual dues and assessments, on or before the days on 
which they fall due, shall forfeit his membership, and his cer- 
tificate becomes null and void, and all moneys paid thereon, or 
because of his membership, shall be forfeited to the Union. 
9. Marriage benefits are to be paid out of the Benefit Fund, 
which is a trust fund held sacred for the purpose. This fund 
shall be created by monthly assessments, collected from the 
members, and deposited, subject only to checks drawn in favor 
of beneficiaries, signed by the treasurer, and countersigned by 
the president. Within ten days after the receipt of satisfactorv 
proof of the marriage of the above-named member (this certifi- 



254 SUPREME COUET [Dec. Term, 

[White V. Equitable Nuptial Benefit Union.] 

cate being then in force), and upon the surrender of tliis cer- 
tificate, proper!}^ receipted, the Equitable Nuptial Benefit 
Union will pay to the legal holder thereof, at its office in 
Hnntsville, such a sum of money as shall be due thereon, ac- 
cording to the laws, rules and regulations governing such pay- 
ments; provided that, in no case, shall there be paid an amount 
exceeding $3,000. This certificate is issued by the Equitable 
Nuptial Benefit Union, and accepted by the above-named mem- 
ber, on the following expressed conditions and agreement : The 
person to whom this certificate is issued agrees to pay, at the 
office of the Union in Huntsville, Ala., an annual due of eight 
dollars ($8), with such marriage assessments as may be required 
under the laws, rules and regulations governing the Union ; 
and if the statements made in the application for the certificate, 
which, it is hereby agreed and understood, shall form tiie basis 
of, and become a part of this contract, should be untrue in any 
respect, or if the annual dues and assessments be not paid as 
hereinbefore provided, then this certificate shall be null and 
void, and all moneys paid thereon shall be forfeited to the 
Union. Within ten days after receipt of satisfactory proof of 
the marriage of said member, properly made out on the blanks 
furnished for the purpose by officers, the Union shall pay, at 
their bank of deposit in Huntsville, a sum to be ascertained as 
follows : No member shall be entitled to any benefit whatever, 
who marries in less time than three months from tiie date of his 
certificate. Every member who shall have been in good stand- 
ing as a member, for at least three months prior to his marriage, 
shall be entitled to forty dollars (l-iO) per month upon each one 
thousand dollars named in his certificate, for each whole month 
of his membership ; provided that the sum paid on this certifi- 
cate shall never exceed three thousand ($3,000), or so much 
thereof as shall be realized from one marriage assessment on all 
the members of this class. In witness whereof," 

The complaint contained the common money counts, each 
claiming $360, and two special counts on the contract above 
set out. One of the special counts set out the contract at 
length, and the other the substance of its provisions ; each 
claimed the sum of $360 as due by its provisions, alleging the 
regular payment of dues and assessments against said Vander- 
venter, his marriage on the 14th November, 1882, that due 
proof of his marriage was furnished to the defendant, and pay- 
u)ent of the money was demanded and refused ; and each fur- 
ther alleged that the plaintiff was the beneficial holder and 
owner of the contract, or policy, and was entitled to the money 
due by its terms. The defendant demurred to each of the 
special counts, specially assigning as grounds of demurrer, that 
the contract declared on was contrary to public policy and void, 

Vol. lxxvi. 



1884.] OF ALABAMA. 255 

[White V. Equitable Nuptial Benefit Union.] 

because it was a niarriage-brokage contract, and because it was 
in restraint of marriage, and because it was in tbe nature of a 
gambling contract. The court sustained the demurrers, and 
the cause was tried on issue joined on the common counts, 
" with leave to the defendant to give in evidence an}' matter 
which, if specially pleaded, would be a good plea in bar." 

On the trial, as appears from the bill of exceptions, the 
plaintill testified as a witness for himself, and stated that he 
procured from the defendant corporation the said policy, or 
special contract, which was produced, and read to the jury with- 
out objection ; that he paid to said defendant, when said policy 
was delivered to him, tlie sum of $14.20, as therein sjiecitied, 
and afterwards paid other dues and assessments, as evidenced 
by receipts which he produced, and which were read in evidence 
without objection. " He further testified, also, that shortly 
before the last payment made by him, which was on the 13th 
November, 1882, he had an interview with said O. li. Hundley, 
who then stated to him that said extra assessment was made in 
order to have all the policy-holders paid in full their demands 
which had accrued ; that witness need feel no hesitancy in pay- 
ing it, as he assured him (witness) that he would receive his 
money in full ; that there was then on hand in bank, in his 
custody, and under his control, ample funds to pay witness ; 
that he had $220, which witness' claim was then worth, ready 
to pay over to him ; that he would insure witness against any 
loss in the premises, and that he would certainly be repaid the 
amount which he had paid to said company." As to the sub- 
stance of this conversation with Hundley, the plaintiff's testi- 
mony was corroborated by John S. Reed, who was present at 
the time. 

"Said plaintiff, on his cross-examination as a witness, was 
asked, if it was not his understanding, when he took out said 
policy, that it was a speculation, or gauibling transaction ; and 
he answered, tliat it was a speculation, but not a ' brace game' 
— a speculation in marriage futures ; that he did not at the time 
understand it as a gambling investment, but now it seems that 
it was; that he belonged, then and now, to other endowment 
associations conducted upon the scheme of assessments, and did 
not regard this as less meritorious, because its risk was marriage, 
than other insurance companies whose risk was death ; that he 
iiad been informed, when he took out said policy, that said 
Vanderventer was to l)e married on the 14th November, 1882, 
and he agreed with said Vanderventer that he (V.) should have 
one-third of the proceeds of said policy when received, after 
deducting expenses ; that lie was not related to said Vander- 
venter, by either blood or marriage, and had no business rela- 
tions with him, either as partner or otherwise ; that said Van- 



256 SUPREME COURT [Dec. Term, 

[White V. Equitable Nuptial Benefit Union.] 

derventer was married on the 14th November, 1882, and he 
immediately made out the requisite proofs, furnished them to 
tlie defendant, and demanded payment after M^aiting ten days ; 
and that payment was refused, on the alleged ground, that the 
defendants were not able to pay." 

In the course of his cross-examination, plaintiff identified 
and proved the application for the policy in favor of Yander- 
venter, which, after stating his name, age, residence and 
occupation, gave the name of the plaintiff as the person to 
whom notice should be sent, and to whom the money should be 
paid in the event of marriage ; and this was read in evidence 
without objection. It was admitted that said Hundley, Mc- 
Neely and Erskine, named as defendants in the attachment, 
held the offices of president, secretary and treasurer of the 
corporation, and were the successors in oftice of the persons 
wlio signed the policy ; and that they had control of its funds, 
and the general management of its affairs, at the time of the 
conversation with Hundley, and when payment of the policy 
was demanded. The plaintiff then offered in evidence the 
charter of said defendant corporation, or articles of incorpora- 
tion, which were acknowledged by the persons named as cor- 
porators, before the probate judge of Madison, on the 24th 
June, 1882, and were in these words: "We, the undersigned," 
naming them, " hereby declare tiiat, in accordance with the 
statute in such cases made and provided, we hereby organize 
and constitute a corporation, which shall be known as the 
Equitable Nuptial Benefit Union. The object of the associa- 
tion is to unite acceptable young people in such a way as to 
endow each with a sum of money, not to exceed six thousand 
dollars, to be paid at marriage or endowment, according to the 
regulations adopted. The association shall be under the man- 
agement of a board of directors elected by these incorporators. 
It shall be the duty of these directors to elect officers every two 
years, according to a constitution and by-laws adopted by them, 
and perform snch other duties as are therein prescribed. The 
officers shall be a president, vice-president, secretary, treasurer, 
and manager. The association shall have power to make and 
use a corporate seal. No failure of the board of directors to 
elect oflicers, according to the constitution, shall work any for- 
feiture of our charter." "The defendants objected to the 
admission of said charter as evidence, because the same was a 
nullity, contrary to law, conferring no authority or power, and 
because against public policy." The court sustained the ob- 
jection, and excluded the charter as evidence; and the plaintiff 
excepted. 

This being all the evidence, the court charged the jury, ex 
mero motu^ and also on the written request of the defendants, 

Vol. lxxvi. 



1884.] OF ALABAMA. 257 

[White V. Equitable Nuptial Benefit Union. ] 

" that they must find a verdict for the defendants, if they be- 
lieved the evidence ;" to which charge plaintiff duly excepted. 
The rulings of the court on the pleadings and evidence, and 
the charge to the jury, are now assigned as error. 

Hi'MKS, Gordon & Shefkey, for appellant. — fn determining 
the validity of the contract, as assailed on demurrer, or as shown 
by the evidence, the court will inquire into the whole transac- 
tion from its origin, and will not be embarrassed by any particu- 
lar expressions used in the writing. — liohertson v. JioMtison, 65 
Ala. 610. Tlie avowed object and purpose of the association, 
as declared in its charter, is a laudable one ; and while operat- 
ing a temporary postponement of marriage, from prudential 
considerations, manifestly tends to promote and encourage 
marriages, by providing an endowment fund. Conditions in 
partial restraint of marriage, founded on prudential considera- 
tions, and not in themselves unreasonable, are not invalid. 
Story's Equity, §§ 280, 283 ; Coppage v. Alexander's Heirs, 38 
Amer. Dec. 157, Note ; Commonwealth v. Stauffer^ 51 Amer. 
Dec. 489 ; Ilogan v. Ctirtin, 42 Amer. Rep. 244 ; Collier v. 
Slaughter, 20 Ala. 263. The contract has none of the elements 
of a marriage-brokage contract, and it is no more in the nature 
of a gambling contract than the policies issued by other lawful 
insurance companies, w-hose risk is death instead of marriage. 
If it be a gambling contract, then the plaintiff was entitled, at 
least, to recover back the money which he had paid. — Code, § 
2131; Jacques v. Goliqhtly, 2 Wm. 131a. 1073; Mcmnt c& 
Wardell v. Waile, 7 John. 433. The suit is not against the 
corporation alone, but certain stockholders are joined as de- 
fendants, who are made liable in proportion to tlieir stock, or 
as partners, if the association was not lawfully organized. 
Code, §§ 1959-61. An express and direct promise is proved 
against Hundley, on the faith of which the last payment was 
made to him ; and a recovery may be had under the common 
counts. — 2 Greenl. Ev. § 109, note ; Walke?' v. Kremer, 5 Rep. 
389 ; Lea v. Cassen, 61 Ala. 312. If there be anything illegal 
or immoral in the transaction, the mischief has already been 
perpetrated, and the defendants will not be allowed to take 
advantage of their own wrong. — Huhnan v. Johnson, Cowp. 
343 ; taikey v. Reynoxis, 4 Burr. 2069 ; GiUiani v. Brown, 
43 Miss. 642 ; DeLeon v. Trevino, 49 Texas, 88 ; Brooks v. 
Martin, 2 Wall. 70 ; Planters' Bank v. Union Bank, 16 Wall. 
483 ; Owen v. Davis, 1 Bailey, 315. 

Walker & Walker, Jno. D. Brandon, and L. Cooper, 
contra. — (1.) The contract is in the nature of a marriage-brok- 
age contract, and is void on that account. — Add. Contr. 102, 
17 



258 SUPREME COURT [Dec. Term, 

[White V. Equitable Nuptial Benefit Union.] 

2d Amer.-ed.; Craioford v. Russell, 62 Barb. 92; Boynton v. 
Hubbard, T Mass. 112; Story's Equity, § 261. (2.) It is 
against public policy and void, because it is in restraint of mar- 
riage. — 2 Parsons on Contracts, 73; Add. Contr. 102; Cliitty 
on Contracts, 680 ; Sterliiig v. Sinnickson. 2 South. N, J. 871 ; 
Hartley v. Rice, 10 East, 22 ; Lowe v. Peers, 4 Burr. 2225 ; 
Baker V. PTAifo, 2 Vern. 215 ; Vaughan v. Lovejoy, 34 Ala. 
437. (3.) Under the evidence, if not on its face, it is in the 
nature of a gambling contract, and falls within the principle 
which governs wager policies of insurance. —2 Parsons on Con- 
tracts, 477-81, 6th ed.; Chalfant v. Payton ,91 Ind. 202. (4.) 
The contract being illegal and void, no recovery can be had 
under the common counts. — Armstrong v. Toler, 11 Wheaton, 
258; Leavittv. Blatchford, 5 Barb. 21; Aidjert v. Maze, 2 
Bos. & P. 371 ; Lea v. Cassen, 61 Ala. 312 ; Scheiblev. Bacho, 
41 Ala. 423 ; 1 Wait's Ac. & D. 386 ; Broom's Maxims, 350 ; 
8elter v. Alvey, 15 Kansas, 157. (5.) The policy was forfeited 
by its express terms, Yanderventer having married on the 14th 
l^ovember, one day before the expiration of three months from 
the date of the policy. — Code, § 11 ; Dickson v. Frisbie, 52 
Ala. 165. (6.) iS^o recovery can be had on account of any sup- 
posed liability of Hundley et at., either as corporators or as 
partners, because the action is not founded on the statute. 
Blackburn v. Baker, 7 Porter, 284 ; 6 Cowen, 290 ; 1 Chittv's 
PI. 106, 143; 2 East, 333; 3 Wendell, 494 ; 1 Atk. 126 ; ifar- 
ris V. Brooks, 56 Ala. 388. 

CLOPTON, J. — The special counts of the complaint declare 
on a contract, called a " marriage insurance policy," issued by 
the "Equitable Nuptial Benefit Union," which is averred to 
be a corporation, duly incorporated under the laws of this 
State. The question of the validity of the contract was made 
by demurrer to the special counts ; the causes assigned being, 
that it is in the nature of a marriage-brokage contract, is in 
restraint of marriage, and is in the nature of a gambling con- 
tract. 

A marriage-brokage contract is an agreement for the pay- 
ment of money, or other compensation, for the procurement of 
a marriage. Although they may not be a fraud on either 
party, such contracts are held to be void, and a public mischief, 
forasmuch as they are calculated to bring to pass mistaken and 
unhappy marriages, to countervail parental inriuence in the train- 
ing and education of children, and to tempt the exercise of an 
undue and pernicious influence, for selfish gain, in respect to 
the most sacred of human relations. An essential element in 
such contract is the procurement of a marriage, oftentimes 
without regard to the wishes of friends or parents, or to the 
Vol. lxxvi. 



1884.J OF ALABAMA. 259 

[White V. Equitable Nuptial Benefit Union. J 

happiness of the parties most deeply interested. There is no 
such element in the contract sued on ; nor is there anything in 
its nature that contemplates compensation for the negotiation 
or procurement of any particular marriage. By the contract, 
it is agreed to pay an amount of money upon the contingency 
of marriage, but leaves the party in the exercise of entire free- 
dom as to the person with whom he may propose to contract 
nuirriage. While, in view of the conclusions at which we have 
arrived, it is unnecessary to decide this question, we have said 
this much, it being presented by the record, to exclude any in- 
ference, that in our opinion the contract is obnoxious to this 
objection. 

Without extending this opinion by an unnecessary attempt 
to consider the different and varied applications of the rules 
determining the illegality of contracts, and of conditions an- 
nexed to gifts or testamentary dispositions in restraint of mar- 
riage, we shall refer to those rules that have been generally ac- 
cepted and recognized. Subject to modifications and limita- 
tions by the application of other special rules, dependent upon 
the facts, whether the condition be precedent or subsequent, or 
whether there is a gift over, or whether the property be real or 
personal, all conditions in deeds or wills, and all contracts, ex- 
ecutory or executed, that create a general prohibition of mar- 
riage, are contrary to public policy, and to " the common weal 
and good order of society." The rule rests upon the proposi- 
tion, that the institution of marriage is the fundamental sup- 
port of national and social life, and the promoter of individual 
and public morality and virtue ; and that to secure well- 
assorted marriages, there must exist the utmost freedom of 
choice. Neither is it necessary there shall be positive prohibi- 
tion. If the condition is of such nature and rigidity in its re- 
quirements as to operate as a probable prohibition, it is void. 

On the other hand, conditions in conveyances, or annexed to 
legacies and devises, in partial restraint oi marriage, in respect 
to time, or place, or person, if reasonable in themselves, and 
do not materially and practically create an undue restraint 
upon the freedom of choice, are not void. Says Judge Story : 
"But the same principles of public policy which annul such 
conditions, when they tend to a general restraint of marriage, 
will confirm and support them, when they merely preserve 
such reasonable and prudent regulations and sureties, as tend 
to protect the individual from those melancholy consequences, 
to which an over-hasty, rash, or precipitate match would prob- 
ably lead."— 1 Story Eq. Jur. § 281. 

The want of harmony in the adjudged cases does not arise 
from any ambiguity in the rule itself, but from its comprehen- 
sive terms, inasmuch as the application of the rule to each 



260 SUPREME COURT [Dec. Term, 

[White V. Equitable Nuptial Benefit Union. J 

particular case is submitted to the sound discretion and judg- 
ment of the court. The courts apply it according to their 
estimation of the relative necessity and importance of preserving 
the largest liberty in the formation of marital alliances, on the- 
one hand, and on the other, of upholding the prerogative of 
the dispenser of bounty to dictate the terms, upon which its 
enjoyment shall commence or continue, and of the right of 
persons competent to contract to fix the terms of their agree- 
ment so far as may be consistent with the public weal. — 2 Lead. 
Cas. in Eq. 420; Maddox v. Maddox, 11 Grat. S04; Moiiey 
V. Rennoldson^ 2 Hare, 571 ; Williams v. Williams, 13 Mo. 
211; 2 Com. Eq. Jur. § 933; Co-ppage v. Alexander, 38 Am. 
Dec. 156, (note). Under the operation of this rule, conditions 
restraining marriage, without consent of parents, guardians, or 
executors, or under twenty-one, or other reasonable age, or 
with particular persons, are held to be valid ; and conditions 
not to marry a man of a particular profession, or that lives in 
a named town or country, or who is not seized of an estate in 
fee, are held to be general and void. — Collier v. Slaughter, 20 
Ala. 263 ; Stackpole v. Beaumont, 3 Ves. 88 ; 1 ounge v. 
Furse, 8 D., M. & G. 756 ; Scott v. Tyler, 2 Bro. C. C. 488. 

It is true, these instances of the application of the rule are 
in cases of conditions annexed to gifts, devises, or legacies ; 
but illustrate that the condition will be sustained, when it is 
the exercise of due and reasonable precaution against rash and 
imprudent marriages. But, if it is an evasion of the law, or a 
cover to restrain marriage generally, or is in terrorerii, the con- 
dition will be declared void. The present is the case of a con- 
tract, and these illustrations are helpful only to the extent that 
contracts in restraint of marriage are dependent upon the same 
principles. 

The charter of "the Equitable Nuptial Benefit Union" 
declares, " The object of the association is to unite acceptable 
young people in such a way as to endow each with a sum of 
money, not to exceed six thousand dollars, to be paid at mar- 
riage or endowment, according to the regulations adopted." 
It proposed to accomplish this ostensibly laudable object, by 
the issuance of certificates of membership. The one issued in 
this case contains, among others, the following provisions : 
"No member will be entitled to any benefit whatever, who 
marries in less time than three tnonths from the date of his 
certificate. Every member, who shall have been in good 
standing as a member for at least three months prior to, his 
marriage, shall be entitled to forty dollars per month, upon 
each one thousand dollars named in his certificate, for each 
whole month of his membership; provided that the sum shall 
never exceed three thousand dollars, or so much thereof as 
Vol. lxxvi. 



1884.] OF ALABAMA. 2G1 

[White V. Ktiuitablo Nuptial Bonelit Union.] 

shall be realized froin one marriage assessment of all the mem- 
bers of this class." 

The restraint of marriaj^je is partial. The counsel for plaintiff 
insist, that the restraint is reiisonable, not forbidding marriage, 
but postponing it with the consent of the apj)licant for mem- 
bership, to a period when it can presumably be made to greater 
advantage ; and therefore should be held valid, hy analogy to 
similar provisions in gifts, or testamentary dispositions. No 
circumstances are proved, to show the reasonal)lenes8 of the 
restraint. This must i)e ascertained from the certificate of 
membership, without the aid of extrinsic and surrounding facts 
and circumstances. Looking at the certificate, we are forced 
to the conclusion, that the restraint of ujarriage for three 
months is not for the benefit or advantage of the applicant, 
but to enable the association to realize a benefit fund, and to 
keep the applicant in a condition to contribute thereto, by the 
payment of dues and assessments. 

In Hartley v. Rice, 10 East, 22, Lord Ellenborough, C. J., 
says: "On the face of the contract, its immediate tendency is, 
as far as it goes, to discourage marriage ; and we have no 
scales to weigh the degree of effect it would have on the 
human mind. It \s said, however, that the restraint is not to 
operate for an indefinite period, but only for six years, and 
that there might be reasonable grounds to restrain the party 
for that period. But no circumstances are stated to us to show 
that the restraint was reasonable ; and the distinct and imme- 
diate tendency of the restraint stamps it as an illegal ingre- 
dient of the contract." And in Sterling v. Smnickson^ 2 South. 
756, where the action was on a sealed bill to pay one thousand 
dollars, provided the obligee was not lawfully married in six 
months, Kirkpatrick, C. J., after stating the general principle, 
that all obligations to restrain marriage generally are void, 
says: "And I find no case, but in that of legacies (with one 
exception of a gift), that gives validity to an instrument, when 
made in contradiction to the principle first mentioned. And 
the principle of time, place, and person, appears to apply to 
legacies only, unless for a good consideration^ 

It is not stated that there existed any relation between the 
applicant and the plaintiff, or the association, that would or 
could have moved either the plaintiff or the association to im- 
pose the restraint from prudential motives in favor of the 
applicant. A person having an interest, arising from relation- 
ship or close friendship, may, by conditions of partial restraint 
in gifts or legacies, guard and protect inexperienced vouth 
against rash and improvident marriages ; and the husband may 
restrain his widow, in the interests of his children ; but, as is 



262 SUPREME COURT [Dec. Term, 

[White V. Equitable Nuptial Benefit U^ion.] 

added in some of the cases, " this could not be done by a 
stranger." 

In Chalfant v. Payton^ 91 Ind. 202, a certificate of mem- 
bership, issued by the "Immediate Marriage Benefit Associa- 
tion," was held to be contrary to public policy, and illegal, — 
the contract being to pay a sum of money, on condition that 
the member does not marry within two years, and on marriage 
thereafter to pay a certain sum per day during the time he 
shall remain unmarried. It may be said, that the time of 
restraint by the contract sued on is for a much shorter period. 
By what rule, in the absence of special facts and circumstances, 
can the reasonableness of the time of restraint be measured? 
By what scales, can the degree of its effect upon the mind of 
the applicant be weighed ? When a parent restrains the mar- 
riage of a child, or a friend prohibits it, without the consent 
of parents or guardian, until an age at which the child is com- 
petent to contract without such consent, the restraint does not 
violate, but is in furtherance of the policy of the law. But, 
when a stranger, without any interest or motive, except for self- 
ish gain, enters into a contract, restraining the marriage of 
another for a definite period of time, the contract, pro tanto, 
violates public policy. 

If there were no provision, other than the restraint for three 
months, a doubt as to its illegality might reasonably be enter- 
tained ; but the restraint for three months is not the full scope 
of the contract. To obtain a clear comprehension of its nature 
and tendency, another provision must be observed. The cer- 
tificate not only makes the payment of the money conditioned 
on not marrying in less than three months, but provides that, 
upon marriage after the expiration of three months, the mem- 
ber shall be entitled to receive forty dollars, on each one thous- 
and dollars named in the certificate, for each whole month of 
his membership; that is, during the time he remains single. 
Thus, the contract contains an inducement to postpone marriage 
indefinitely, although the member contemplates its consumma- 
tion at some future uncertain time; for the longer the marriage 
is postponed, the larger is the sum to be paid. The amount 
which the member will be entitled to receive is conditioned on 
the length of time marriage is deferred. This inducement, in 
connection with the restraint for three months, may have the 
effect to operate an indefinite postponement; and, as there is no 
limit, within which the member shall marry, it may operate to 
occasion a general restraint. 

Insurance, being an indemnity against loss or risk, fs not in- 
tended for the benefit of persons having no concern in the 
subject-matter, nor any interest in the event. In Hdmetag v. 
Miller, at the present term, it is said : "No principle uf the 

Vol. lxxvi. 



1884.] OF ALABAMA. 263 

[White V. Equitable Nuptial Benefit Union.] 

law of life-insurance is, at this day, better settled, than the doc- 
trine, that a policy taken out by one person upon the life of 
another, in which he has no insurable interest, is illegal and 
void, as repugnant to public policy. . . Such contracts are 
aptly termed 'wager policies,' and are entitled to no higher 
dignity, in the eye of the law, than gambling speculations, or 
idle bets on the probable duration of human life," The same 
principle, that where there is no insurable interest, the policy 
is invalid, pervades the law of all kinds of insurance. At an 
early period, marine-insurance policies, without interest, were 
considered iimocent wagers ; but now such policies are held to 
be void, as contravening tlie cardinal object of insurance — in- 
demnity against loss — and as being dangerous and demoralizing, 
by tempting the insured, having nothing to lose but everything 
to gain, to bring to jiass theevent upon the happening of which 
the insurance becomes payable. — May on Ins. § 75. Although 
the certilicate is not properly a policy of insurance, an applica- 
tion of these principles will enable us to arrive at a satisfactory 
conclusion as to the character of the contract, when considered 
in the light of the attendant circumstances. 

Vanderventer, at the time of making the application,, in 
response to questions propounded, named the plaintiff as the 
person to whom the benetit should be paid, and to whom 
notices of dues and assessments should be sent for payment. 
There was also an agreement, that plaintiff would pay all dues 
and assessments, which he did, and Vanderventer should receive 
one-third of the proceeds of the certificate when collected, after 
deducting expenses. It is manifest that, while Vanderventer 
made the application personally, and is the nominal member, he 
was the mere instrument to procure the certificate, and that the 
contract was made really for the benefit of the plaintiff. It 
must be regarded as, virtually and substantially, a contract with 
him. 

The plaintiff, not being related to Vanderventer by affinity 
or consanguinity, and having no business relations with him 
whatever, had no personal interest in his marital relations. It 
was speculation on the part of the plaintiff, without interest, upon 
the probability of Vanderventer's marriage, — as the plaintiff 
tersely characterized it, in his testimony, ''a speculation in 
marriage futures." Such contract is disfavored and disapproved 
by the law, in the interests of the common weal, of good order 
and general public policy. It subjects the plaintiff to a temp- 
tation, for pecuniary advantages, to promote and procure the 
marriage of Vanderventer, at some future period, by which the 
plaintiff has nothing to lose. Upon analogous principles in 
cases of insurance, such contract is, in its nature, a wager con- 
tract. — Chalfant v. Payton, supra. 



26-1: SUPREME COURT [Dec. Term, 

[Peterson V. Blanton.] 

It is further contended, that if the contract is illegal, then 
the plaintiff is entitled to recover, under the common counts, 
the sum of the dues and assessments paid bj him ; especially 
from Hundley, by virtue of a special promise. The action was 
commenced originally by process of attachment against three 
named individuals, among whom is Hundley, who are described 
in the affidavit preceding the issue of the writ, as "constituting 
the Equitable Nuptial Benefit Union, organized under the laws 
of Alabama." In the margin of the complaint, subsequently 
filed, the parties are stated in the same mannei-; but the body 
of the complaint reads, "The plaintiff, Alexander L. White, 
claims of the defendant, the Equitable Nuptial IJenetit Union, 
a corporation composed of the defendants, Oscnr R. Hundley, 
William A. McNeely, and Alexander Erskine, Jr., and duly in- 
corporated under the laws of Alabama." The individuals, 
named in the margin as defendants, are mentioned in the body 
of the complaint, which controls the marginal statement, merely 
as composing the alleged corporation, — -descriptio permnm. 
Filing such complaint, and going to trial thereon, operated a 
discontinuance of the suit against them as individuals, and con- 
verted it into an action against the corporation as the sole de- 
fendant. 

The court will not lend its aid to either party, for the enforce- 
ment of an illegal executory contract, in an action to recover for its 
non-execution ; and when a contract, contravening good morals 
or public policy, has been fully and voluntarily executed^ and 
the parties are in pari delicto.the court will not interfere with 
the acquired rights of either at the instance of the other. — Hill 
V. Freeman^ 73 Ala. 200. The claim of the plaintiff to re- 
cover the dues and assessments paid falls within this rule. 

Affirmed. 



Peterson v. Blanton. 

Bill in Equity for relief against Judgment at Law. 

1. Equitable relief against judgment at larv, on ground of fraud, acci- 
dent, mistake, &c. — By the long-established rule governing bills in equity 
for relief against judgments at law founded on legal demands, the party 
c Jinplaiiiing must show that he had a meritorious demand (or defense, 
as the case may be) ; that he was prevented from establishing it by sur- 
prise, accident, mistake, or the fraud of his opponent, and that there 
was no negligence or other fault on his own part. 

2. Same. — Under this rule, a mortgagee of personal property, having 
been defeated in an action at law founded on the mortgage, on the ground 

Vol, i,.\xvi. 



1884.] OF ALABAMA. 265 

[Peterson v. Blanton.] 

that the mortgage (leV)t was satistied in full, can not obtain equitable re- 
lief against the judgment, by averring that, when the cau.se was called 
for trial, ihc defendant asked a continuance, and .submitted an affidavit 
as to the testimony of an absent witness, who would, if present, swear 
that he saw and heard a settlement between the parties at which the 
mortgage debt was fully paid ; that plaintiff, not .supposing that the affi- 
davit was false, admitted the statement to avoid a continuance; that the 
verdict of the jury wa.s founded on this statement and admission ; and 
that i>laintiff aftei wards discovered that the affidavit was entirely false, 
and thereupon moved for a new trial, which was refused. 

Appeal from the Chancery Court of Pickens. 

Heard l)efore tlie Hon. Thomas Cobbs. 

The bill in this case was filed on the 14th July, 18N4, by 
Albert J. Peterson, a<)^ain8t J. N. Blanton ; and sought e(|nitable 
relief, in the nature of a new trial, against a judgment at law, 
which had Iteen rendered against the complainant in the Cir- 
cuit Court of said county, in an action at law therein instituted 
by him against said Blanton, under the following circumstances, 
as alleged in the bill, and shown by the exhibits thereto : 
Blanton was indebted to complainant for advances made during 
the years 1881 and 18S2, and, to secure said indebtedness, had 
executed to complainant a mortgage on his crop to be raised 
during the year 1882, and also on several horses and njules. 
Default having been made in the payment of the mortgage 
debt at maturity, complainant instituted an action at law on 
the 2d February, 1883, to recover the mules and horses con- 
veyed by the mortgage. The action was regularly continued 
until the February term. 1884, when tiie defendant applied for 
a continuance, and submitted an affidavit as to the testimony of 
an absent witness, as follows: "W. H. Ilearrin, if here, would 
prove that he casually heard a conversation between plaintiff 
and defendant, after the delivery of the cotton embraced in 
the mortgage, which cotton paid in full the debt secured by 
mortgage and crop-lien on the cotton delivered; that defendant 
at the time demanded his account for the years the advances 
were made ; in which conversation plaintiff expressed a desire 
to apply the cotton to an old debt not secured by the mortgage, 
but defendant refused to allow such an application, and insisted 
that the cotton delivered was in full of all liens held by plaintiff 
against defendant.'' On this application for a continuance, 
" which complainant required said Blanton to make under oath, 
complainant was forced, for the sake of obtaining a trial of his 
said cause, to admit that said Ilearrin, if present in court, 
would swear to the matters as set out in said affidavit of said 
Blanton ; and confiding in the api)eal of said Blanton for truth 
and honesty, supported by the solemnity of an oath voluntarily 
taken by said Blanton, and having no idea that he would, in 
open court, thus endeavor to perpetrate so base a fraud on your 



266 SUPREME COURT [Dec Term, 

[Peterson V. Blanton.] 

orator, your orator went into the trial of said cause, as required 
by the court, and said affidavit went into the hands of the jury 
trying said cause, and was weighed and considered by them in 
making up their v^erdict; and the cause turning upon the facts 
set out in said statement and affidavit, and by and through the 
influence thereof, said Blanton procured a verdict and judgment 
in his favor in said cause." The bill further alleged, that the 
complainant discovered, a few days afterwards, that said affi- 
davit was false, and that said Ilearrin would not swear to the 
facts therein stated ; that he thereupon procured from said 
Hearrin a certificate, made before a justice of the peace, in 
these words : " This is to certify, that I never heard any con- 
versation between A. J. Peterson and J. N. Blanton, and was 
never present on any of their settlements in regard to their 
business;" that he thereupon entered a motion for a new trial 
in said cause, and submitted said certificate in aid of his mo- 
tion, and that the motion was overruled by the court. 

The chancellor sustained a demurrer to the bill, for want of 
equity ; and his decree is now assigned as error. 

W. F. Johnston, for appellant, contended that the bill con- 
tained equity on the ground of fraud, and cited the following 
authorities:' Bump's Kerr on Fraud, 42, 293-4, 352, 385; 
"■1 Story's Equity, §§ 187, 192; Kennedy v. Kennedy, 2 Ala. 
571 ; Chambers v. Crook. 42 Ala. 171 ; 56 Ala. 198, 202 ; 
HuTTvphreysv. Burleson, 1'i, Ala. 4; Crommelin v. McCauley, 
67 Ala. 547; Kelly v. McGrath, 70 Ala. 79; 71 Ala. 324; 
Freeman on Judgments, § 489. 

E. D. WiT-r.Err. and D. C. Hono, contra, cited Norman v. 
Bums, 67 Ala. 248; Freeman on Judgments, §§ 485-87, 
502-08. 

STONE, C. J. — When there is a judgment at law on a legal 
demand, obtained according to the rules which govern law 
courts, there can be no relief in the Chancery Court for mere 
reversible errors, nor for any other wrong or injury done or 
suffered, unless the party complaining shows that he had a valid 
subsisting demand which lie can establish, or a valid, merit- 
orious defense which he can prove ; and that he was prevented 
from establishing his right, or maintaining his defense, as the 
case may be, by surprise, accident, mistake, or the fraud of the 
opposite party, without any fault or negligence on his part. 
This rule has been long established, and is without exception. 
French v. Garner, 7 Por. 549 ; Beadle v. Graham., 66 Ala. 
102 ; Collier v. Falk, Ih. 223 ; Broda v. Greenwald, Ih. 538 ; 
1 Brick. Dig. 666, § 376. 

Vol. lxxvi. 



1884.] OF ALABAMA. 26T 

[Beatty v. Brown.] 

Tliecase made by the present bill falls far below the required 
stniidard. 

The decree of the Ch'aiieery Court is affirmed. 



Beatty v. Brown. 

Action f 01' Statutory Penalty for Cutting Trees. 

1. Whrn action /?Vs. — The owner of lands can not maintain an action 
of trespass, or an action to recover the statutory penalty (Code, § 3551), 
against a purchaser under an executory contract of sale, who, while in 
possession under the contract, and after nf)tice by plaintiff that the con- 
tract was rescinded i)ecauseof his failure to comply with its stipulations, 
cut and removed trees from the land. 

Appkal from the Circuit Court of Tuskaloosa. 

Tried before the Hon. John Mo<^)Rp:. 

This action was brought by Randall R. Brown, against Wni. 
M. Beatty, "to recover two hundred dollars," as alleged in the 
complaint, "as damages for willfully and knowingly, and with- 
out the consent of the i)laintilf, and in violation of section 
3551 of the Code, cutting down twenty pine-trees, on, to-wit, 
the 18th, 20th, 21st, and 22d days of August, 1883, on the fol- 
lowing described lands," &c.; " which said lands were not at 
said time, and are not now the [)roperty of said defendant, but 
were and are the pro))erty of the plaintiif ;" also, " two hundred 
dollars as damages for willfully and knowingly, and without 
the consent of plaintiff, and in violation of section 3551 of the 
Code, taking away, on, to-wit," &c., from said lands described 
as before, "twenty pine-trees, which had already been cnt down, 
and were then lying on said lands." The defendatit pleaded 
" the general issue, in short by consent, with leave to give in 
evidence any matter which might be specially pleaded ; and 
the cause being tried on issue joined on that plea, there was a 
verdict and judgment for the plaintiff, under the rulings of tlie 
court, for $200. 

On the trial, as appears from the bill of exceptions, the 
plaintiff proved that he purchased the land described in the 
complaint, in 1854, and in November, 1880, leased it to the de- 
fendant ; that the contract of lease was rescinded, by mutual 
agreement, and an executory contract of sale entered into, on 
the 23d July, 1881, by which he agreed to sell and convey the 
lands to said defendant and another, as partners under the name 
of W. M. Beatty & Co., who agreed to pay the stipulated price 



268 SUPREME COURT [Dec. Term, 

[Beatty v. Brown.] 

($11,700) in montlily installments ; and he produced tiie written 
contract, which coiitained the following (with other) provisions: 
" If the said amount is all promptly paid, without default in 
the several installments, as ahove provided, then the said party 
of the first part hereby agrees and covenants with the parties of 
the second part that he will, at the end of the said thirty-six 
months, make them a fee-simple title, with covenants and war- 
rant}'. But, if they fail to pay any monthly installment, on 
the first day of the month, as above provided, they shall cease 
to cut any timber from any of said lands, without the written 
consent of the party of the first part, till all past-due payments 
are made ; and if the said parties of the second part are de- 
faulters b}' the 20th day of any month, the party of the first part 
shall have the right and power to terminate and nullify this con- 
tract, and to take possession of said lands, and to treat the parties 
of the second part as trespassers, by giving them, or either of 
them, written notice to that effect." The plaintiff testified, as 
a witness for himself, that the said defendant and his partner 
failed to make their monthly payments as stipulated, until they 
had fallen in arrears, up to August, 1882, to the amount of 
$2,000 or more; that he thereupon notified them in writing 
(which was produced), on the 18th August, 1882, that the said 
contract was terminated and nullified, that he would prosecute 
them as trespassers if they cut down or removed any more 
timber, and that he demanded possession of the lands ; and 
that they refused to surrender the possession, and afterwards 
cut down and removed a large number of pine-trees. On these 
facts, the court charged the jury, in substance, that the defend- 
ant was liable to the plaintiff for ten dollars, for each tree cut 
down or carried away after plaintiff's written notice and demand 
of possession. The defendant excepted to this charge, and also 
to the refusal of several charges asked by him in writing ; and 
these rulings of the court are now assigned as error. 

Maktin & Martin, and Mc^'^achin & McEAcnm, for appel- 
lant, cited Cooper v. Watson, 73 Ala. 255 ; Bosioell dh Woolley 
V. Carlisle, Jones cfe Co., 70 Ala. 247; Brothers v. Hurdle, 10 
Ired. 490. 

A. C. Hargkove, contra. (No brief on file.) 

SOMERYILLE, J.— The principle settled in Coojyer v. Wat- 
son, 73 Ala. 252, is conclusive, in our opinion, against the 
plaintiff's right of recovery in the present action. The suit 
there was one of detinue, brought by the owner of the fi'ee- 
liold of certain lands, for timber which had been converted 
into chattels by the defendant, who, being in possession, had 

Vol. lxxvi. 



1884.] OF ALABAMA. 269 

[Beatty v. Brown.] 

severed trees from tlie freehold. The plaintiff had, at tiie 
time, no possession of the lands, actual or constructive, but the 
defendant was in occupancy of them, holding adversely. It 
was decided that the action could not be maintained, the court 
using the following language : " The doctrine seems well set- 
tled, upon principle and anthorit)', that if the owner of the 
land be not in the actual possession — if he can show title to 
things severed from it, only by showing title to the land — a 
personal action for the taking, conversion, or detention of such 
things, will not lie. If he have the possession at the time of 
the severance, the rule is different. But, if his possession is 
divested — if his right lie in entry, and the adverse possessor 
gathers a crop in the course of husbandry, or severs a tree or 
other thing from the land, the things severed are converted into 
chattels. But they do not become the property of the owner 
of the land ; he is out of possession, and has no right to the 
immediate possession of such things ; nor can he bring any 
action to recover them, nntil he regains possession." The 
owner of land, out of possession, can not, in other words, be 
permitted to bring his title in dispute, in a personal or transi- 
tory action, against one who holds possession of such land 
adversely. Otherwise, an actual occupant, although honajide 
claiming ownership in himself, might be harassed by a multi- 
plicity of suits, for innumerable alleged trespasses, all of which 
should more properly be embraced in one action for mesne 
profits, after or during recovery in ejectment. This is not, and 
should not be allowable. — 1 Smith's Lead. Cases (7th Amer. 
Ed.), 660 ; Brotfters v. Hurdle, 10 Ired. (L.) 490 ; Powell v. 
Smith, 2 Watts (Penn.) 126; Cooper v. Watson, 73 Ala. 252, 
s^ipra. 

The present action is for damages for destruction of trees, 
under the provisions of section 3551 of the Code. The title of 
the lands w-as in the plaintiff, but the defendant was in posses- 
sion, holding them adversely, at the time the trees were cnt 
and removed from the freehold. Under the principle above 
stated, the action would not lie, until the plaintiff had first re- 
covered possession of the land by ejectment, or, at least, by way 
of mesne profits in such an action. The judgment of the 
court must be reversed, in view of these principles, and the 
cause remanded. 



270 SUPREME COURT [Dec. Term, 

[Herr v. Seymour.] 



Herr v. Seymour. 

Action on Official Bond of County Treasurer. 

1. State witness certificates ; how certified and paid. — The claims of 
State witnesses in criminal cases, whether for attendance before the 
court or the grand jury, must be authenticated by the certificate of the 
clerk of the court, before they become proper charges on the fund aris- 
ing from fines and forfeitures (Code, §§ 4459-60) ; though the foreman of 
the grand jury is required to give certificates to witnesses attending be- 
fore that body, showing the number of days' attendance, the distance 
travelled, &c. (Sess. Acts 1882-3, p. 158), on which, when compared 
with the certified book which he is required to file with the clerk, the 
latter issues the necessary certificate to the witness. 

2. Same ; sufficiency of certificate ; statute construed as remedial. 
Although the -statute requires that the certificate of the clerk shall state 
" therein the amount of conipensation to which the witness is entitled, 
and the facts which make it a good claim against the county " (Code, § 
4460) ; yet, being a remedial statute, it must be liberally construed ; and 
being so construed, if the certificate states on its face the amount of com- 
pensation, and an indorsement on it, signed at the same time, states the 
facts which make it a good claim against the county, this is a substan- 
tial compliance with the statute. 

3. Repeal of statutes by implication. — The repeal of statutes by impli- 
cation is only allowed when the two statutes are in irreconcilable conflict, 
and a reasonable field for the operation of each can not be found ; and if 
eff"ect can be given to a part of the old statute, without violating any of 
the provisions of the new, the repeal by implication is only partial. 

4. Fees of officers of court, and witness certificates ; priority of payment, 
wAder general and special statutes. — By the general law (Code, § 4461), the 
registered claims of State witnesses are entitled to priority of payment, 
out of the fund arising from fines and forfeitures, over claims for the fees 
of officers of the court ; and while the special statute approved February 
24th, 188], applicable to Sumter county (Sess. Acts 1880-1, p. 280), makes 
the latter claims, when certified as required, a charge on said fund, and 
receivable in payment of anj' debt due the county, " the same as State 
witnesses' certificates are now received," there is nothing in it which de- 
stroys or impairs this right to priority of payment given to registered 
witness certificates. 

5. Same. — Under the special statute applicable to Sumter and other 
counties, approved February 22d, 18-'3, further regulating the payment 
of claims against this said fund (Sess. Acts 1882-3, p. 523), which was 
intended to prevent the fund lying idle in the county treasury, regis- 
tered claims not being presented for payment within one month after ad- 
vertisement by the clerk, he is required to apply the money on hand to 
the payment of succeedingclaims due and registered ; and if such claims, 
not being so presented, are not re-registered within six months, they are 
declared barred ; and to this extent, but no further, the general law is 
repealed. 

Appeals from the Circuit Court of Sumter. 
Tried before the Hon. S. H. Sprott. 
Vol, lxxvi. 



1884.] OF ALABAMA. 271 

[Herr v. Seymour.] 

This action was brought b}' It. H. Seymour, against Benj. 
F. Herr, county treasurer of said county, and the sureties on 
his official bond as sucli treasurer ; and was commenced on the 
11th January, 1884. The complaint alleged, as a breach of the 
defendants' bond, the failure and refusal of said Ilerr, as county 
treasurer, to pay certain witness certificates held by plaintiff, 
which had been duly presented and registered, as claims against 
the fund arising from fines and forfeitures, when, as the com- 
plaint alleged, there was money in the county treasury belong- 
ing to that fund, which was liable to the payment of said claims, 
and was sufficient to pay them in full. The certificates were 
164 in number, aggregated $()63.15, and were of three kinds : 
1st, certificates issued by the clerk of the Circuit Court ; 2d, 
certificates issued by the judge of the County Court ; 3d, cer- 
tificates issued by the foreman of the grand jury. The com- 
plaint stated the numbers of the several certificates, and their 
aggregate amount, and set out one of each kind. The certifi- 
cate of the clerk of the Circuit Court, as copied, stated the 
name of the case, and the term of the court, and then certified 
to the fact that the witness had proved his attendance on the 
part of the State, the number of days, the distance travelled, 
and tlje amount to which he was entitled ; and on it were in- 
dorsed these words . " Defendant convicted^ and sentenced to 
penitentiary. Execution issued, and returned ' No property 
found ; ' " to which the clerk's name was signed. The certifi- 
cate of the judge of the County Court was in the same form, 
and on it were indorsed the words, " State failed ; " to which 
the name of the judge was signed. The certificate of the fore- 
man of the grand jury was in the same form, and on it were 
indorsed these words, '■'• State failed',^'' to which the name of 
the clerk was signed. 

The defendants demurred to the complaint, assigning as 
grounds of demurrer— 1st, that it showed no cause of action ; 
2d, that the certificates sued on, as set out in the complaint, 
were not legal charges against the fund arising from fines and 
forfeitures ; 3d, that the certificates issued by the foreman of 
the grand jury were not legal charges against said fund. The 
court sustained the last ground of demurrer, but overruled the 
others ; and the defendants then filed two special pleas, alleg- 
ing that, at the time payment of plaintiff 's claims was demanded, 
there was not money enough in the treasury, arising from fines 
and forfeitures, to pay said claims and certain other claims for 
fees of the officers of court, which had been registered before 
plaintiff's said claims, and which were entitled to be paid out 
of said fund, under the provisions of two special acts of the 
General Assembly, which were set out in each plea, and the 
material parte of which are stated in the opinion of the court. 



272 SUPREME COURT [Dec. Term, 

[Herrv. Seymour.] 

The court sustained a demurrer to the special pleas, and the de- 
fendants then pleaded the general issue ; and the cause was tried 
on issue joined on that plea. 

On the trial, as appears from the bill of exceptions, the 
plaintiff offered in evidence tiie certificates sued on, " and proved 
by T. B. Wetmore, that these certificates, as issued by the cir- 
cuit clerk and foreman of the grand jury, were in the usual 
form of such certificates, and that this form had been in use in 
said county, with such indorsements, for thirt}^ or forty years." 
The court admitted the certificates in evidence, against the de- 
fendants' objection, and they excepted. The defendants then 
read in evidence, without objection, said two special acts of the 
General Assembly. " It was agreed, that there was not enough 
money in the county treasury, belonging to the fine and for- 
feiture fund, at the time said demand was made, to pay said 
certificates and the claims for officers' costs which had been 
registered prior to Said certificates ; but enough to pay said cer- 
tificates, by postponing payment of the officers' costs as afore- 
said. This being all the evidence, the court charged the jury, 
at the request of the plaintiff, that, if they believe the evidence, 
they must find in favor of the plaintiff, on all tlie certificates 
sued on issued by the clerk ; to whicii charge the defendants 
excepted." 

The defendants appeal, and iiere assign as error — 1st, the 
overruling of their demurrer to the complaint, as above stated ; 
2d, the sustaining of the demurrers to their special pleas ; 3d, 
the admission of the certificates as evidence ; 4th, the charge of 
the court. 

The plaintiff also appeals, and assigns as error the ruling of 
the court in sustaining the demurrer to the complaint, so far as 
it claimed a recovery on the certificates issued by the foreman 
of the grand jury. 

A, G. Smith, and J. J. Altman, for the defendants. 

R. C. Chapman, for the plaintiff. (No briefs on file.) 

CLOPTON, J.— This is a suit on the official bond of the 
county treasurer. The breach of the bond assigned is, the 
failure and i-efusal of the treasurer to pay, on demand, some 
State witnesses' certificates, which were chargeable against the 
fine and forfeiture fund, and which had been registered ; the 
treasurer having money, belonging to that fund, sufficient to 
pay them. Potli parties took an appeal. The two appeals 
were submitted together, and are decided as one case. 

Section 4459 of Code 1876 provides : " If the defendant is not 
convicted, and the costs are not imposed on the prosecutor; or, 

Vol. lxxvi. 



1884.J OF ALABAMA. 273 

[Herr v. Seymour.] 

if the indictment be withdrawn and filed ; or the prosecution 
abated by the death of the defendant ; or, if the costs are im- 
posed on either the defendant or the prosecutor, and an execu- 
tion against him for the same is returned 'no property found ;' 
or, if no indictment is found by the grand jury, before whom 
the witnesses appear ; or, if a nol-pros. be entered ; in each of 
these cases, the fees of witnesses on the part of tlie State, ap- 
pearing either before the grand jury or the court, must be paid 
by the county, in the manner specified in the next section." 
The next section (4460) makes it " the duty of tlie clerk of 
the court, to issue a certificate to each witness appearing on the 
part of the State, stating therein the amount of compensation 
to which he is entitled, and the facts which, under the provis- 
ions of the preceding section, make it a good claim against the 
county ; which certificate is receivable in payment of any debt 
due to the county for fines and forfeitures, and payable by the 
treasurer out of any fines and forfeitures in the county treas- 
ury." 

The Legislature having provided for a fine and forfeiture 
fund, these sections of the Code prescribe what witnesses, ap- 
pearing on the part of the State in criminal cases, are entitled 
to have their compensation paid out of such fund, and the man- 
ner in which they shall be paid. This fund does not arise from 
taxation. It is a special fund, created for special purposes. 
The sources from which it is derived, and the claims to be paid 
out of it, are prescribed by special legislation. The claims are 
filed, registered and paid, without being previously audited 
and allowed by the Court of County Commissioners. — Palmer 
V. Fitts, 51 Ala. 489, The authentication of such claims, upon 
which the treasurer is authorized to pay them, is the certificate 
of the clerk of the court. Tlie foreman of the grand jury is 
required to give each witness a certificate of his attendance, 
showing the case in which, and the number of days he attended, 
the number of miles travelled, and amount due such witness, 
and to enter the same in a book ; which book, certified by him 
to be correct with a list of all such witnesses, he must return 
to the court, and which must be filed as a record by the clerk. 
Acts 1882-3, 158. This act does not authorize the foreman 
to certify the facts which make it a claim against the county. 
A certificate, issued to a witness by the foreman, is no authen- 
tication or verification to the county treasurer of the amount 
of compensation to which the witness is entitled, and of the 
facts which make it a good claim against the county, payable 
out of the fines and forfeitures in the county treasury. The 
treasurer is under no legal duty to pay such certificates, and a 
refusal to pay them is no breach of the condition of his bond. 

Section 4460 is a remedial statute, and should be liberally 
18 



274 SUPEEME COURT [Dec. Term, 

[Herr v. Seymour.] 

and beDeficially construed. The language of the statute is : 
" It is the duty of the clerk of the court, to issue a certificate 
to each witness appearing on the part of the State, stating 
therein the amount of compensation to which he is entitled, 
and the facts which, under the provisions of the preceding sec- 
tion, make it a good claim against the county." A construc- 
tion that makes it indispensable for the clerk to state in one 
certificate, and upon its face, both the amount of compensation, 
and the facts which make it a good claim against the county, is 
too strict and narrow, A certificnte by the clerk, of the 
amount of compensation, and the indorsement thereon of a 
certificate stating the facts which make it a good claim against 
the county, is a substantial compliance with the statute, and 
comes within its reason and spirit. The two certificates, having 
been simultaneously made in respect to the same subject-mat- 
ter, and connected by a reference of the one to the other, may 
be considered as constituting but a single certificate, in the same 
manner as if embodied in one. 

The principal defense relied upon is, two special acts of the 
Legislature. The first is, " An act to make the fees of the 
officers of court of Sumter county receivable in payment of 
debts due said county for fines and forfeitures," This act was 
approved February 24, 1881, and provides : " That in all crimi- 
nal cases, in the Circuit and County Courts of Sumter county, 
in which the fees of the officers of court are a proper charge 
upon the fine and forfeiture fund of said county, it shall be the 
duty of the Commissioners Court of said county, to issue cer- 
tificates to said officers for the amounts due them, upon proof 
made before them ; which certificates shall be a charge upon 
the fine and forfeiture fund of said county, and shall be regis- 
tered as presented to the county treasurer against said fund, and, 
after such registration, shall be receivable in payment of any 
debt due to said Sumter county, the same as State witnesses' 
tickets are now received." — Acts 1880-1, pp. 280. 

The other is, " An act to further regulate the payment of 
the fine and forfeiture scrip of Sumter, Pickens and Ilandolph 
counties," which was approved February 22, 1883. This act 
makes it the duty of the treasurer, when there is any money in 
his hands, with which he can pay the outstanding scrip of 
fines and forfeitures, to advertise the registered number of said 
fund to which he is able to pay, and persons who hold the 
scrip numbered for payment by such advertisement, are re- 
quired to present it for payment within one month after such 
advertisement. If such claiins are not presented within one 
month, the treasurer is to apply the money to the payment of 
succeeding claims due ; and claims not presented within one 
month after such advertisement, are to be re-registered if pre- 

VOL. LXXVI. 



1884.] OF ALABAMA. 276 

[Herr V. Seymour.] 

sented within six montlis ; and if not presented within that 
time, are forever barred. 

This defense was set up by special pleas, to which a demurrer 
was sustained, and these acts were afterwards offered in evi- 
dence under the general issue. The bill of exceptions shows 
that there was not enough money in the treasury, belonging to 
the line and forfeiture fund, to pay the witnesses' certificates 
held by the plaintiff, and to pay the claims for the fees of the 
officers of the court, which had been registered prior to the 
certificates ; but enough to pay the certificates, by postponing 
payment of the claims of the officers of court. 

By the general law (Code 1876, § 4461), the fees of officers 
of court, arising from specified criminal cases, must be paid, 
" whenever there shall be a surplus of the fund arising from 
fines and forfeitures, in the county treasury of any county, 
over and above the sum required to pay the registered claims 
of State witnesses." This provision of the general statute 
requires the payment of all registered certificates of State wit- 
nesses, whether registered prior or subsequent to the registra- 
tion of the claims of officers of court, before any money 
accruing from fines and forfeitures can be applied to the pay- 
ment of the claims of officers of court, which are to be paid 
only when a surplus remains. The purpose was to provide a 
mode and means for the payment of the compensation due to 
State witnesses, as speedily as practicable ; and the effect of 
the statute is, to give all their registered certificates a priority 
of payment over the claims of officers of court. 

It is insisted, however, that this provision of the general law 
is repealed, as to Sumter county, by the special acts referred 
to ; and that the effect of these acts is, to require the payment 
of registered claims against the fine and forfeiture fund of 
that county, in the order of their registration. There are no 
express words of repeal. " The law does not favor the repeal 
of statutes by implication ; and only declares such repeal, when 
all efforts at reconciliation have failed. Only when there is a 
real repugnance in the provisions, does the earlier enactment 
yield to the later ; and if part of the provisions of an older 
statute can be given effect to, without violating any of the pro- 
visions of the newer one, the repeal by implication is only 
partial, and pro tanto. — Enloe v. Reike^ 56 Ala. 500 ; Parker 
V. Huhbard, 64 Ala. 203. If there is not an irreconcilable con- 
flict between the two statutes — if there can be found a reason- 
able field of operation for the later statute, without displacing 
the provisions of the previous law — the conclusion results, that 
the legislature intended both statutes should stand. If it can 
be reasonably done, a construction should be given that will 



276 STJPKEME COURT [Dec. Term, 

[Herr v. Seymour.] 

prevent the provisions of a later from colliding with the pro- 
visions of an older statute. 

The special act of February 24, 1881, makes the certificates, 
issued by the Court of County Commissioners to the officers 
of court, for the amounts of the fees due them, after having 
been registered, receivable in payment of any debt due to the 
county for lines and forfeitures, the same as State witnesses' 
certiiicates are receivable by the general law. The intention 
was to place both classes of certificates upon an equality, so 
far as being receivable in payment of fines and forfeitures. 
This, as expressed in the title, is its scope, and is an ample, 
and the only field of operation. There is nothing in the act 
that refers to the order in which registered claims against the 
fine and forfeiture fund shall be paid by the treasurer, or that 
conflicts with the provision of the general law, which makes 
registered vs;'itness certificates preferred claims upon the fine 
and forfeiture fund. 

The purpose of the act of February 22, 1883, is to prevent 
the fund remaining uneinployed in the county treasury, be- 
cause of registered claims not being presented for payment. 
It requires the appropriation of the fund to the payment of 
"succeeding claims due," notwithstanding there may be prior 
registered claims, whether witness certificates or others, unpaid, 
on account of the failure of the holders to present them, 
within one month after notice by advertisement; and to bar 
such claims, if not presented and re-registered within six months 
thereafter. To the extent that the statute provides for the 
payment of " succeeding claims due " in a specified contingency, 
although there may be registered witness certificates unpaid, it 
repeals the general law — a repeal 'pro tanto. The pleas do not 
aver, nor does the evidence show, the facts necessary to bring 
the claims of the officers of court within the provisions of this 
statute. To entitle them to payment in preference to regis- 
tered witness certificates, there must be averment and proof 
of the facts, showing that the contingency provided for by the 
statute has happened. 

Affirmed. 



1884.] OF ALABAMA. 277 

[Ala. Great Southern Railroad Co. v. Roebuck.] 



Ala. Great Southern Railroad Co. v. 
Roebuck. 

Action against Railroad Company, for Injuries to Stock. 

1. Proof of presentntion of claim to radrond agent. — In an action 
ajrainst a railroad company, to recover damaijes for injuries to stock 
(Code, § 1711), it being proved tliat piaintilF's claim was presented, 
within six months after the injury, to an agent of the company, who 
promised to forward it to the proper officer or department, and after- 
wards told plaintitf that he had forwarded it, and that he would pay it on 
his return trip ; and the evidence showing, also, that other similar claims 
had been presented to said agent, and had been paid by him, and that 
he held himself out as the agent to whom such claims could properly be 
presented ; this is suHituent evidence of due presentation to authorize 
the submission of the question to tiie jury, although the defendant's evi- 
dence tended to show that said agent had no authority to receive the 
presentation of claims, but was only authorized to adjust and pay claims 
referred to him by the higher officers of the company. 

2. Charge as to presentation of claim, invading province of jury. — 
A charge which asserts that, if plain tiff's claim was presented in writing, 
within six months after it accrued, to a named agent of the railroad 
company, " who was on the defendant's train, and was often known to 
settle such claims," &c., the words quoted not being stated hypothetic- 
ally, is an invasion of the province of the jury. 

3. Liability of railroad company for injuries to stock; general charge 
on evidence. — The engineer in charge of the train being the only witness 
who testified as to the circumstances attending the killing of plaintifT's 
horse, and his testimony negativing all negligence on the part of the 
railroad company and its servants ; his testimony, not being impeached 
or contradicted, justifies a general charge in favor of the defendant. 

Appeal from tbe Circuit Court of Jefferson. 

Tried before the Hon. S. II. SpRorr. 

Tins action was brought by James Roebuck against the ap- 
pellant, a domestic corporation, to recover damages for injuries 
to two horses, which were run over by a train of cars on the 
defendant's road, about daylight on the morning of April 
16th, 1882, one being killed, and the other injured; and was 
commenced on the 30th October, 1882. The cause was tried 
on issue joined, but the record does not show what pleas were 
tiled. On the trial, as the bill of exceptions shows, the plain- 
tiff testified in his own behalf, as to the value of his horses and 
the amount of injuries sustained, "but that he knew nothing 
of the circumstances of the killing, as he didn't see it." The 
plaintiff testified, also, " that he had never made any demand 
in writing, for damages to said stock, to the president, treas- 
urer, superintendent, or any depot agent of the defendant, but 



278 SUPKEME COURT [Dec. Term, 

[Ala. Great Southern Railroad Co. v. Roebuck.] 

did make a claim in writing to a man named Smith, whom he 
saw on one of the defendant's trains, and who, as he had heard, 

{)aid for damages to stock for the company ; that said Smith 
lad charge of the defendant's supply train, and held himself 
out as the agent to whom claims for damages to stock were to 
be presented ; that said Smith told him he could not then pay 
him, but that he would do so the next time he came around ; 
that he did not know anything about Smith's authority to re- 
ceive the presentation of such claims, except of having heard 
of his paying for such damages for the defendant ; that Smith 
took the claim, and said that he would forward it to headquar- 
ters, and would pay it when he came around again. Other 
witnesses for plaintiff testified, that said Smith who run on the 
supply train, known as ' Gov. Smith,' had received presenta- 
tion of claims for damages to stock, and paid the same ; but 
none of them knew of his having authority from the defendant 
to do so, or that any of the officers of the company knew of his 
having done so, but that he held himself out as the agent for 
receiving and paying such claims, and had received and paid 
other like claims for the defendant. One of the witnesses, a 
former attorney of the defendant, stated, that he was acquainted 
with the course of the defendant's business, in regard to dama- 
ges to stock, and that said Smith only had authority from the 
defendant to adjust and pay claims therefor after the same had 
been referred to him by the superior oflicers of the company 
for settlement ; and that he never knew of said Smith having 
authority from the defendant to receive the presentation of 
such claims. No testimony was offered, tending to show that 
plaintiff's claim was ever mentioned, presented, or forwarded 
by said Smith, to the president, superintendent, treasurer, or 
any depot agent of the defendant, or that said claim was in any 
way brought to the knowledge of any of them, before this suit 
was brought, except as above stated." 

" Some witnesses for the plaintiff stated, that they saw the de- 
fendant's train, at or near the time when and where the plain- 
tiff's horse was killed, and heard no whistle blow for stock, 
which, had one been blown, they thought they would have 
heard. This was all the evidence offered by tlie plaintiff ; and 
the defendant then introduced H. W. Lynch as a witness," who 
was the engineer in charge of the train at the time the horses 
were injured, and who testified, in substance, that the accident 
occurred at or near daybreak, when the train was running at 
the rate of twelve or fifteen miles per hour ; that the horse 
killed was lying down on the track, and was not perceived by 
him until too late to reverse his engine, or stop the train ; and 
that he used all the means known to skillful engineers to check 
Vol. lxxvi. 



1884.] OF ALABAMA. 279 

[Ala. Great Southern Railroad Co. v. Roebuck.] 

liis train and avoid tlie injury. " Tliis was all the evidence 
offered by the defendant." 

" The court charged the jury, among other things, that if the 
plaintiff presented his claim, in writing, for the damage done 
to his stock, within six months after it was done, to the ' Gov. 
Smith' mentioned by the witness, who was on the train of the 
defendant, and was often known to settle such claims, and said 
Smith told him that he could not then settle the claim, but 
would take and forward it to headquarters, and afterwards told 
plaintiff that he had forwarded it to headquarters, and would 
pay it soon ; and if they believed that said Smith did so for- 
ward said claim to headquarters, before the expiration of six 
months from the time of the damage, and said claim was re- 
ceived at headquarters by the officers of the company ; this 
would be a good presentation of the claim, and the plaintiff 
need not prove presentation to any one else." 

The defendant excepted to this charge, and then requested 
the following charges, which were in writing : 1. " If the jury 
believe the evidence, they must lind for the defendant." 2. 
" Inasmuch as the plaintiff's claim was not presented, in writ- 
ing, to the president, treasurer, superintendent, or some depot 
agent of the defendant, within six months after the injury 
complained of, and this suit was not brought within six months 
after said injury, the jury must find for the defendant." The 
court refused each of these charges, and the defendant excepted 
to their refusal. 

The charge given, and the refusal of the charges asked, are 
now assigned as error. 

Samuel F. Rice, for the appellant, cited Railroad Co. v. 
KUlian, 69 Ala. 277 ; Lehman, Durr (& Co. v. Warren <& 
Burch, 53 Ala. 535. 

STONE, C. J. — The testimony of plaintiff, in the court 
below, tends to show that, in less than six months after the 
injury was done, he made out his claim in writing, and pre- 
sented it to one Smith, who was known as " Governor Smith ;" 
that Smith received it, and promised to forward it to head- 
quarters; that he. Smith, subsequently told witness lie had for- 
warded the said claim to headquarters, and that he would, on 
his next trip, pay plaintiff for the horse the train had killed. 
There was testimony tending to show that Smith had charge of 
the railroad's supply-train ; that he held himself out as the 
agent of the road, to whom claims for damage to stock should 
be presented ; and that he had received presentation of claims 
for damage to stock, and had paid the same. There was testi- 
mony, on the other hand, tending to prove that Smith had no 



280 SUPREME COURT [Dec. Term, 

]Clements v. Hays.] 

antliority to receive presentation of claims, but that his only 
authority was to adjust and pay claims which were referred to 
him by higher officers of the railroad company. If the ver- 
sion of the plaintiff and his witnesses be the true one, then 
this was sufficient evidence to be left to the jury, whether or 
not there had been a presentation in writing made to the rail- 
road within six months after the injury was done. — S. cfe N. R. 
R. Co. V. Brown, 53 Ala. 651; K t , Va. cfe Ga. R. R. Co. 
V. Bayliss, 74 Ala. 150. The second charge asked by defend- 
ant was properly refused. 

Tliat portion of the affirmative charge which was excepted 
to, has this language: "If the plaintiff presented his claim, in 
writing, for the damage done to his stock, within six months 
after it was done, to the 'Gov. Smith' mentioned by the wit- 
ness, who was on the train of defendant., and was often known 
to settle such claims,^'' &c. The italics are our own, and are 
simply intended to call attention to that part of the charge. 
The words italicised are not stated as hypotliesis, nor was the 
inquiry of their truth submitted to the jury. A charge given 
in this form, where the testimony is oral, and only tends to 
prove the facts, can not be sustained. — McDougald v. Ruther- 
ford, 30 Ala. 253 ; Jones v. Fort, 36 Ala. 449 ; Ross v. The 
State, 74 Ala. 532. 

The only witness who spoke of the circumstances attending 
the killing of the horse, was the engineer in charge of the 
train. If his testimony be true, there was no negligence on 
the part of the railroad company, or its employees. If there 
was not other testimony bearing on this question, the general 
charge — the one first asked bj' defendant— ought to have been 
given.— Ala. Gt. So. R. R. Co. v. Mc Alpine, 75 Ala. 113. There 
was testimony, however, tending to show that Smith was the 
agent of the company for the adjustment of claims of this class, 
and that he admitted its justness, by promising to pay it. This 
was the testimony of the plaintiff, and it does not appear to 
have been contradicted. Whether contradicted or not, it justi- 
fied the refusal to give the first charge asked. 

Reversed and remanded. 



Clements v. Hays. 

Action for Forcible Entry and Unlawful Detainer. 

1. Whal j)08sesswn vrill support action. — To maintain an action of 
forcible entry and detainer, the plaintiff must show his prior actual pos- 

VOL. LXXVI. 



1884.1 OF ALABAMA. 281 

[Clements v. HavH.] 

session, as (listinjrnisliod from the constructive possession which the law 
attachcH to tlie legal titlti. 

2. PusscHsioH, actual aiid constructive. — When a person is in actual 
possession of a part of a tract of land, his possession does not extend hy 
construction to the other portions, unless he holds under a deed, or other 
color of title to the whole, and there is no antagonistic possession to any 
part. 

3. What posscssloji will support action. — Where the plaintiff shows no 
deed, or other color of title, the fact that he had made a partial survey of 
the lands, running certain lines, but without staking ofl' the land, is not 
sufficient proof of actual possession; and the fact that he had given per- 
mission to other persons, on several occasions, to burn lime on an unde- 
scribod portion of the lands, with wood obtained elsewhere, is not suffi- 
cient to show actual possession of any particular part of the land ; but a 
recovery may be had for the portion of land covered by an uncompleted 
log-house, on proof that it was erected by a workman employed by him, 
notwithstanding a temporary suspension of the work before the comple- 
tion of the house. 

4. Presumption as to continuance of posspssion. — Possession being a 
fact continuous in its nature, when its existence is once shown, it will be 
presumed to continue until the contrary is proved. 

Appeal from the Circuit Court of Bibb. 

Tried before the Hon. James E. Com?. 

This action was brought by the appellants, as the executors 
of the last will and testament of Rufus II. Clements, deceased, 
against Elisha T. Hays, to recover the possession of a tract of 
land containing 320 acres, which was part of section sixteen 
(10), township twenty-two (22), range seven (7) west; and was 
commenced before a justice of the peace, on the 22d June, 
1882. The complaint in the justice's court contained only a 
count for forcible entry and unlawful detainer, but in the Cir- 
cuit Court, to which the case was removed by the plaintiffs, a 
count for unlawful detainer was added. On the trial in the 
Circuit Court, as the bill of exceptions recites, " it appeared 
that the lands sued for were uncleared, and were not inclosed 
by a fence or other inclosure. The plaintiffs offered to prove, 
by parol, that they, as such executors, were in possession of 
certain lands in said county, holding and cultivating the same 
by their tenants ; and that the lands here sued for were adjoin- 
ing to the said lands so held and cultivated by them, and con- 
stituted a part of the same tract of land. The defendant ob- 
jected to the admission of this evidence, and the court sus- 
tained the objection ; to which ruling and decision the plaintiffs 
excepted." 

The plaintiffs proved, also, "that in the life-time of their 
testator, and by his permission, certain parties had gone on a 
portion of the lands now in controversy — viz., the north-east 
quarter of the north-west quarter of said section — and had 
burned lime there, from rocks found thereon, and had paid 
said testator a part of the lime so made for the privilege of so 



282 SUPREME COURT [Dec. Term, 

f Clements v. Hays.] 

burning it; also, that during the years 1876, 1877, and 1878, 
by their permission as such executors, parties had in Hke man- 
ner burned lime on said lands, and had paid them for such 
privilege a part of the lime so made ; but no wood for this 
purpose was taken from the said lands, but only the rocks were 
gathered and burned on the land with wood gotten elsewhere; 
that the signs of these burnings remained ; also, that said 
plaintiffs, about three years ago, procured a surveyor to run 
certain lines, as follows: commencing at the north-west corner, 
and running south one-half mile, then commencing at said 
north-west corner, and running east one-half mile to a corner, 
and then some'distance south from said east corner; that there 
was an interruption by rain in running these lines, and the 
work was not completed, but stakes were driven at the said 
corners above mentioned ; that said east line was afterwards 
run far enough south to determine that a certain house, herein- 
after mentioned, was on the south-west quarter of the north- 
east quarter of said lands; and that defendant at one time told 
plaintiffs, while they were going to look after the lands in con- 
troversy, that he would tell them if he saw any one trespassing 
on their lands. The plaintiffs proved, also, that in November, 
1881, they employed one Mink to build a house on the south- 
west quarter of the north-east quarter of said section ; that said 
Mink went on said land under said employment, and com- 
menced to erect a log-house on said land, and put up the body 
of the house, and a frame for dirt chimney, and put down a 
plank floor, and nearly covered the same, and put boards enough 
in the house to complete the covering ; that he quit working 
thereon because of sickness in his family, and returned to the 
house, some six or eight weeks afterwards, to resume his work, 
but found that some one had flnished the same, and had put 
things in the house, and had fastened up the door ; and it was 
afterwards ascertained that this was done by the defendant. 
The plaintiffs proved, also, that the defendant was in possession 
of said house before and at the commencement of this suit, 
claiming to hold and own the whole of the land in controversy ; 
and that they had served on said defendant, before the com- 
mencement of this suit," a written notice and demand for the 
surrender of possession. 

The plaintiffs asked the following charges to the jury : 
(1.) "If the jury believe, from the evidence, that the plaintiffs 
were exercising habitual and continuous acts of ownership over 
the north-east quarter of the north-west quarter of said sec- 
tion, by having lime burned thereon, showing a disposition to 
control it, and that such acts were open, notorious, and demon- 
strative of their adverse intention ; then plaintiffs are entitled 
to recover said tract of land in this action." (1.) "That the 

Vol. lxxvi. 



1884.] OF ALABAMA. 283 

[Clements v. Hays.] 

plaintiffs can prove by parol that the lands sued for in this 
action were part of a body or tract of land, a part of which was 
cleared and in cultivation ; and that if the jury believe, from 
the evidence, that the lands here sued for are a part of such a 
body or tract of land, of which the plaintiffs had the possession, 
and which was in part cultivated by them ; then the plaintiffs 
are entitled to recover in this action." (3.) " Whenever it is 
clearly established that a person is in possession, in a contest 
over the possession, the law presumes that possession continues 
until it otherwise appears from the proof in the case." The 
court refused each of these charges, and the plaintiffs duly ex- 
cepted to their refusal. 

The refusal of the several charges asked, and the exclusion 
of the evidence to which exception was reserved, as above 
stated, are now assigned as error. 

J. M. Martin, with Suttle & Peters, for appellant, cited 
Lecatt V. Stewart, 2 Stew. 474 ; Singleton v. Finley, 1 Porter, 
144; Jackson v. Porter, 1 Paine, C. C. 458; Anderson v. 
Darby, 1 N. & McC. 396 ; Brandon v. Grimke, 1 N. tfe McC. 
357 ; 1 Ser. & R. Ill; Davidson v. Beatty, 3 liar. & McII. 
621 ; Hammond v. Ridgeley, 5 Har. & J. 264; Machin v. 
Geortner, 14 Wend. 239; Penn v. Preston^ 2 Rawle, 14; 
Ladd V. Dithroca, 45 Ala. 421; Plank-road Co. v. Webh, 27 
Ala. 618 ; Powell v. Knox, 16 Ala. 364 ; Garner v. Green da 
Elliott, 8 Ala. 96. 

Wood & Wood, contra, cited Russell v. Desplous, 29 Ala. 
308; Irion v. Lewis, 56 Ala. 190; House v. Camp, 32 Ala. 
541 ; Townsend v. Van Aspen, 58 Ala. 572 ; Spear cfe Thorn- 
ason V. Zomax, 42 Ala. 576 ; 9 Ala. 507 ; 3 Ala. 127. 

SOMERVILLE, J — The action of forcible entry and de- 
tainer can be sustained only by proof of an actual possession of 
the premises sued for, held by the plaintiff prior to the unlaw- 
ful entry made by the defendant. It can not be sustained by 
showing a mere constructive possession, or such as the law im- 
putes to the owner of the legal title. — Houston v. Farris, 71 
Ala. 570 ; Womack v. Powers, 50 Ala. 5 ; Russell v. Desplous, 
29 Ala. 308. The forcible entry, therefore, of the owner him- 
self, may constitute an unlawful invasion of the actual possession 
of a stranger who is a trespasser. — Trial of Titles to Land 
(Sedgw. & Wait), § 94. 

The tract of land, for the possession of which this action was 
instituted, embraces about two hundred acres, which is shown 
to have been unimproved, uncultivated, and uninclosed. The 
plaintiffs showed no written evidence of title, or color of title. 



284 SUPKEME COURT [Dec. Term, 

I Clements v. Hays.] 

They showed title and actual possession, however, of adjoining 
lands, and proved certain facts which, they insisted, are suffi- 
cient evidence, in connection with their claim of title, to raise 
a presumption of actual possession by them of the particular 
tract sued for in this action. 

We may observe, in advance, that there is no room in this 
case for the application of the principle, that where one is in 
actual possession of a portion of a given tract of land, he will 
sometimes be held in law to be in possession of the remainder. 
This rule never applies, unless the occupant holds under deed, 
or other color of title, and there is no antagonistic or adverse 
possession. The deed, or other paper title, is important to 
-deiine the extent or boundaries of his claim and possession. 
Bell V. Denson, 56 Ala. 444 ; Bohannon v. The State, 73 Ala. 
47, and cases cited, p. 50 ; Trial of Title to Land (S. &. W.) §§ 
728, 768 ; Farley v. Sinith, 39 Ala. 38. 

In the absence of any color of title (5li the part of the plaintiffs, 
it is very clear that actual occupancy by them, or their agents, 
was not shown by the fact that they had previously made a par- 
tial survey of these lands, which was providentially interrupted 
before completion. This was done by running certain lines, 
without staking off the land. — Sanky v. Noyes, 1 Kev. 68 ; 
Thompson v. Burhaus, 79 N. Y. 93 ; Crosby v. Pridgen, at 
present term ; Childt'ess v. Calloway, ante, pp. 128-32. The 
same may be asserted as to the permission given by plaintiffs, 
and their testator, to certain parties, three or four different 
times, to burn lime on an undescribed portion of these lands, 
the wood used in the burning being obtained elsewhere. If 
these acts should be held to show actual occupancy, or posses- 
sion, it could not be held to cover the whole of the tract in 
controversy. How far we should limit such alleged possession, 
we have no means of knowing from the evidence, nor could the 
jury know with any degree of certainty. 

It is our opinion, however, that the plaintiffs showed actual 
possession of the log-house which was in process of construction 
on these lands. The workman who was employed to build this 
house must be regarded as the servant of the plaintiffs for this 
purpose, and his possession was their possession, just as fully as 
the possession of the tenant is that of the landlord ; or of an 
agent, authorized to occupy, is that of his principal. The tem- 
porary cessation of the work by the builder was not an aban- 
donment of his possession. In this aspect of the case, the last 
charge requested by the plaintiffs was improperly refused by 
the court. Possession is a fact ordinarily continuous in its na- 
ture, and when once established by proof, it must be presumed 
to continue until a different presumption is raised by contrary 
proof.— 1 Greenl. Ev. (14th Ed.) § 41, and note h; M. c& W. 

Vol. lxxvi. 



1884.] OF ALABAMA. 285 

[Waldrom v. AValdrom.] 

Planh-road Co. v. Webb, 27 Ala. 618; Powell v. Knox, 16 
Ala. 364. The evidence tended to show that the plaintiffs were 
entitled to recover the log-house, and the land upon which it 
immediately stood, and the jury were authorized to award them 
this recovery under the complaint. The refusal of the charge 
in (juestion was, therefore, error. The other rulings of tlie 
court are, in our opinion, free from error. 
Reversed and remanded. 



Waldrom v. Waldrom. 

Bill in Equity for relief against Probate Decfree rendered on 
Settlement of (xuardian's Account. 

1. Conclusiveness of probate decree, and equitable relief against. — A de- 
cree of the Probate Court, rendered on settlement of a guardian's ac- 
count, has the same dignity, force and conclusiveness as a judgment at 
law ; and while a court of equity has juris(ii(;tion to open it on a proper 
application, the same special grounds for equitable interference must be 
shown as in ca!?e of a judgment at law — that is, the party complaining 
must show that wrong or injustice has been done to him, and that it was 
caused by accident, surprise, fraud, or the act of his adversary, and 
without fault or neglect on his own part. 

2. Policy of life-inanrance; interest of beneficiaries on surrender; guar- 
dianship of children by father. — When a policy of insurance is taken out 
by a husband and father on his own life, for the benefit of his wife and 
children, a present interest vests in the beneficiaries on the delivery of 
the policy , and if he afterwards surrenders the policy on payment of its 
cash value, receiving the share of his infant children as their guardian, 
under a regular appointment, he is liable to them for the amount so re- 
ceived, witliout regard to the parental relation, as any other guardian 
would be. 

3. Allowance to father out of child's estate. — When an infant has an es- 
tate, and his father is unable to maintain and educate him in a manner 
authorized by it, a court of etjuity will make an allowance to the father 
out of the infant's estate, to supplement the father's inability, benefit to 
the infant being the controlling consideration in each case. 

4. Allowance to guardian out of ward's estate. — When a father, being 
also the guardian of his infant child, has expended uioneys belonging to 
the child's estate in his sujjport and education, under circumstances 
which would have justified a court of etiuity in decreeing it, he will be 
allowed a credit for such expenditures on settlement of his accounts as 
guardian, subject to a set-off for the value of any services rendered to him 
by the child ; but, when he seeks to establish an allowance for such ex- 
penditures, as an eipiitable set-off against a j)robate decree rendered 
against him on settlement of his accounts as guardian, his claim to relief 
must appear by clear and definite averments, showing that the expendi- 
tures were maSe under such circumstances as would have entitled him 
to a credit on that settlement. 

5. Service of citation less than ten days before settlement. — The fact that 
the citation from the Probate Court was served on the guardian less than 



286 SUPREME COUET [Dec. Term, 

[Waldrom v. Waldrom.] 

ten days before the decree on settlement was rendered against him, 
while the decree recites due service (Code, §§ 2793, 2526), neither ren- 
ders the decree void, nor, of itself, authorizes equitable relief against it. 

6. Equitable relief against probate decree ; averments not negativing 
negligence. — General averments of " sickness, bad roads, bad weather, 
personal attention to other business, and a message sent to the probate 
judge, through the deputy-sheriff, that he could not be present on the 
day appointed for the settlement," are not sufficient to negative fault or 
negligence on the part of the guardian, when it does not appear that he 
made any effort to employ counsel, to procure a continuance, to bring 
his condition or defenses to the attention of the court, or to obtain a re- 
hearing. 

Appeal from the Chancery Court of Marengo. 

Heard before the Hon. Thomas Cobbs. 

The bill in this case was filed on the 8th July, 1884, by Henry 
M. Waldrom, against his children, Marvin Waldrom, Frederick 
Waldrom, Bettie Wilkinson and her husband ; and sought to en- 
join a decree which had been rendered against the complainant, 
as guardian of his said children, by the Probate Court ot said 
county, on the 14th January, 1884, or to establish an equitable 
set-off against it, on account of moneys alleged to have been 
expended by complainant in the support and education of his 
said children. The said probate decree, a copy of which was 
made an exhibit to the bill, recited that said 14th January was 
appointed, by an order made and entered on the 10th Decem- 
ber, 1883, " to examine the account then stated by the court 
against Henry M. Waldrom, as guardian of the estate of Marvin 
Waldrom ei al., minors, and to audit and restate the same, if it 
should be found necessary," and the appearance of said Marvin 
et al. by their attorney, and then proceeded thus : ''And it ap- 
pearmg to the satisfaction of the court, by due proof, that a 
citation has been regularly issued and served upon said H. M. 
Waldron), at least ten days before this day, in all respects ac- 
cording to law, and as directed by said former order of the 
court ; and said H. M. Waldrom having wholly disregarded the 
said citation and order of court, and having failed to appear ; 
and no objection or exception to said account, as heretofore 
stated by the court, having been filed, and none being made to 
the court ; and it being shown to the court that each of said 
wards has attained the age of twenty-one years ; it is ordered, 
adjudged, and decreed by the court, that said account, so stated 
against said H. M. Waldrom as aforesaid, be, and the same is 
hereby, passed and allowed ; and that said Marvin Waldrom, 
Frederick Waldrom and Bettie Waldrom, each, have and re- 
cover of said H. M. Waldrom, as guardian aforesaid, the sum 
of $265.84, being the amount now adjudged by the court to be 
due from said II. M. Waldrom, guardian as aforesaid, to said 
Marvin, Fred, and Bettie respectively, besides the costs," &c. 

Vol. lxxvi. 



1884.] OF ALABAMA. 287 

[Waldrom v. Waldrom.] 

The bill alleged, as grounds of relief against this decree, 
that the only estate belonging to said children which ever came 
into the complainant's hands as their guardian, was their inter- 
est in the money ($1095.50) which he had received on the 
surrender of a policy of insurance for $5,000 on his own life, 
for the benefit of his wife and children ; that he effected this 
settlement with the insurance company, as the cash value 
of the policy, in January, 1878, and had himself appointed 
guardian of his children, at the instance of the attorney of the 
company, representing their interest to be $900, and gave a 
receipt for the money as their guardian ; that he supposed this 
was mere matter of form, and would not have assumed such 
guardianship, if he had known that he thereby incurred any 
liability towards his children ; that he had derived no profit 
from the money, but had expended the entire h mount, and 
more, in the support and education of his said children ; and 
he insisted that, if he was liable at all to them, he should be 
credited with the amount of such expenditures, as an equitable 
set-off. 

In excuse of his failure to appear and make defense in the 
Probate Court, the bill contained these allegations : " Your 
orator shows that, during the year 1883, he received a citation 
to settle his guardianship in said Probate Court ; but, being in 
such bad health, confined to his bed, and knowing also that said 
judge who issued the citation knew of the nature, character, 
and circumstances of the guardianship, he sent a note to said 
judge, stating his ill-health, and also that he did not consider 
the matter binding on hiui ; and he heard nothing more of any 
proceedings therein, until about the 10th of Janiiary, 1884, 
when, your orator being sick in bed, his wife received, at the 
hands of Mr. Tom Sharpe. an envelope, which she opened, and 
told your orator that he had to go to Linden on Monday about 
the guardianship. Your orator then ascertained that it was a 
citation ; but he did not read it, because he was sick, and for 
the following other reasons :" namely, that a writ of possession 
was then in the hands of the deputy-sheriff, under which com- 
plainant was to be dispossed of his home and plantation on the 
following Monday ; " and the deputy-sheriff was executing this 
judgment against your orator al)0ut the 12th and 14th January, 
1884, while he was suffering with pneumonia, and during an 
unprecedented cold spell of weather, and while he had been 
unable to make any provision for himself or his family, and 
which so })re-occui)ied his atttention as to prevent him from 
giving the case in the Probate Court the personal attention it 
seems to have required. Besides, your orator was eighteen miles 
from the court-house, the weather was freezing, and the roads 
in such condition that he felt it would be unsafe for him, in his 



288 SUPEEME COURT [Dec. Term, 

[Waldrom v. Waldrom.J 

critical state of health, to travel over thein ; and he had neither 
ability or funds to employ an attorney to appear for him." It 
was alleged, also, that the complainant sent a verbal message to 
.the probate judge, by the deputy-sheriff, "notifying said judge 
that your orator could not be present on Monday," and that said 
deputy-sheriff failed to deliver the message ; also, that a peace- 
warrant was sworn out against him, under which he was 
arrested, "and hauled to Linden in a wagon, to-wit, on the 17th 
January, 1884, and there imprisoned in jail ; and he knew not 
that a final decree had been rendered against him in the Probate 
Court until it was too late to take any steps in said court to 
remedy the matter." It was alleged, also, as errors and irregu- 
larities in the probate decree, that the original citation to the 
complainant did not state whether the settlement was to be 
partial or final; that it purported to require a settlement of his 
guardianship of his five children, while the decree rendered 
related only to the estate of two of them ; that the second 
citation was in fact served on him less than ten days before the 
decree was rendered ; and that Bettie Waldrom, named in the 
decree and citation, was then a married woman, and her hus- 
band was not made a party. 

The chancellor sustained a demurrer to the bill, on the 
ground that its allegations did not relieve the complainant of 
the imputation of negligence; and his decree is now assigned 
as error. 

W. W. DuGGER, for appellant. — (1.) If the children took 
any vested interest in the policy, which is denied, their guar- 
dian could not compromise or destroy it by a surrender of the 
policy; and they yet have their action at law against the insur- 
ance company. (2.) The recitals of the decree import verity, 
and would bo conclusive on appeal or supersedeas. — Marshall 
V. Candler, 21 Ala. 490. (3.) The Chancery Court has express 
statutory authority to correct errors of law or of fact, which 
have occurred in the settlement of guardians' accounts (Code, 
§§ 3837-39) ; and the errors and irregularities specified in the 
bill make a proper case for its intervention. (4.) The allega- 
tions of accident, ignorance, and equitable set off, are sufficient 
to sustain the equitv of the bill. — Story's Equity, vol. 1, §§ 
121-30, 542; vol. 2,''§ 1144. 

W. H. Tayloe, contra, cited Drake v. Stone, 58 Ala. 133; 
Bliss on Life Insurance, 525 ; Freeman on Judgments, §§ 97, 
487; Collier v. Falk, QQ Ala. 223; Beadle v. Graham, 60 Ala. 
102; Waring v. Lewis, 53 Ala. 615; Bowden v. Perdue, 59 
Ala. 409. 

Vol. lxxvi. 



1884.] OF ALABAMA. 289 

[Waldrom v. Waldrom.] 

CLOPTON, J.— A decree of the Probate Court, on the 
final settlement of a guardian, possesses the same dignity, and 
has the same force and conclusiveness, as the judgment of 
any court of record. While a court of equity has origi- 
nal jurisdiction to open such settlement, when it is aj)- 
pealed to, and its jurisdiction invoked for such purpose, 
the same special grounds of equitable interference must be 
shown, as in case of a judgment at law. — Waring v. Lewis, 
53 Ala. 615. A proper and due regard for the peace and in- 
terests of society requires strictness and caution in exercising 
the power to disturb the decrees and judgments of other courts 
of competent or concurrent jurisdiction, and re-opening con- 
troversies, which it is the policy of the law to quiet. The court 
will not interfere on account of irregularities in the proceedings, 
or merely to review and correct errors, or when tiiere is a plain 
and adequate remedy at law. To successfully invoke the inter- 
position, it is not sufficient that wrong has been done, but it 
must be manifest that the wrong occurred because of accident, 
surprise, fraud, or the act of the opposite party, and without 
fault or neglect on the part of the party complaining. A con- 
currence of injustice committed, and freedom from fault and 
negligence, is an indispensable condition to the exercise of this 
jurisdiction. — Humphreys v. Btirlesofi, 72 Ala. 1 ; Beadle v. 
Graham, 66 Ala. 102 ; Bowden v. Perdxte, 59 Ala. 409. 

2. The policy of insurance mentioned in tiie bill, having 
been made payable to the wife and children of the complainant, 
and having been issued for their benefit, vested an interest in 
them. In Drake v. Stone, 58 Ala. 133, it is said : "We hold 
that, under an ordinary life-policy, an interest vests in the per- 
son for whose benefit it is taken out, when the policy is delivered, 
subject to be devested on forfeiture upon non-payment of the 
premium, as the policy may prescribe ; and on the death of the 
beneficiary, either before or after the death of the assured, the 
fund arising therefrom goes by bequest or succession, as other 
personal assets of the beneficiary." — Williams v. Williams, 
68 Ala. 405. Whether the complainant, being the assured, 
surrendered the policy, and received its cash value, according 
to its terms, which are not set out, or whether he did so without 
authority, then, on his action being ratified by the beneficiaries 
having capacity, their shares of the sum received vested in 
them, and their right relates to the time of its reception. To 
obtain the money from the insurance company, the complain- 
ant procured the appointment of guardian, and received it in 
that capacity. The complainant was under the same legal 
duty to preserve and manage the portions of the fund belong- 
ing to the estate of his minor children, as guardians, not sustain- 
19 



290 SUPREME COURT [Dec. Term, 

[Waldrom v. Waldrom.] 

ing the parental relation, are in respect to the property of their 
wards. 

3. The injustice, of which the complainant complains, is, 
that he expended during their minority, in maintaining and edu- 
cating the children, who have recovered decrees against him, 
more than the sum of their shares of the fund ; and he insists, 
that he should be allowed a set-off against his liability as guar- 
dian. The duties, arising from the relation of parent and child, 
are reciprocal. The father owes his minor child care, protec- 
tion, nurture and education — nurture and education, suitable to 
his estate and condition in life — and is entitled to the services 
and obedience of the child. When the child has an estate, 
and the father is unable to maintain and educate him in a 
manner authorized by such estate, a court of equity will, 
under such circumstances, make an allowance out of the infant's 
estate, to supplement the father's inability. "Benefit to the 
infant is the controlling consideration ; but the circumstances of 
the father may be inquired of, to determine whether or not he 
is able to properly maintain such child." — Barnes v. Barnes, 
64 Ala. 375. 

4. When a father, being also guardian, has expended money 
of the estate of his child, in his support and education, the father's 
means being inadequate, and tlie expenditures being necessary, 
and suitable to the estate of the infant, and such as a court of 
equity would have decreed, he will be allowed a credit for such 
expenditures, on a settlement of his accounts as guardian, sub- 
ject to a set-off to the value of any services which the child has 
rendered the father. — Calhoun v. Calhoun, 41 Ala. 369. If a 
decree has been rendered by the Probate Court, and the guar- 
dian appeals to a court of equity to open such decree, his title 
to relief must be made manifest by clear and definite averments, 
showing that tlie expenditures were Uiade under such circum- 
stances, as would have entitled him to a credit on the settle- 
ment in the Probate Court. The averments of the bill are 
vague, uncertain, and insufficient. Had all the facts averred in 
the bill been proved, the Probate Court would not have been 
authorized to credit the complainant with the disbursements. 

5. The decree recites, that a citation was regularly issued, 
and served on complainant ten days before the day of the set- 
tlement, in all respects according to law, and as directed by a 
former order of the court. It may be conceded, that the 
recital is not conclusive, and can be controverted in any direct 
proceeding attacking the decree. And it may be further con- 
ceded, that the citation was received by complainant less than 
ten days before the rendition of the decree. This does not 
make the decree void, and is insufficient to authorize the inter- 
ference of a court of equity. In Dunklin v. Wilsoti, 64 Ala. 

Vol. lxxvi. 



1884.] OF ALABAMA. 291 

[Werborn v. Pinney.] 

162, we said: "Want of notice or knowledge is not enough. 
He must go further, and show, both in averment and proof, 
that he had and has a defense good in law, and in what that 
defense consists. The court must be put in possession of the 
facts; for the sufficiency of the defense is an indispensable 
element of the issue." 

The excuse assigned by complainant, for his failure to pre- 
sent his defenses in the Probate Court, is sickness, bad 
roads, bad weather, personal attention to other business, and a 
message sent by the deputj'-sheriff to the judge of probate, 
that he could not be present. No effort was made to employ 
counsel, or to procure a continuance. Ko adequate means were 
used to bring his defenses or his condition to the attention of 
the court. So far as appeared to the court, he was indifferent 
to the settlement. And when he was carried to Linden, three 
days after the settlement, no inquiries concerning the matter 
were made, and no application for a new trial. It is the com- 
plainant's misfortune, if, owing to his supineness and inatten- 
tion, he did not hear of the rendition of the decrees in time 
to have any injustice rectified. He did not exercise the due 
diligence exacted of those who address a court of equity, for 
relief against a judgment at law. The complainant is not 
without fault or negligence. — French v. Garner^ 7 Por. 549 ; 
Pharr v. Reynolds, 3 Ala. 521 ; Stinnett v. Br. Ba7ik, 9 Ala. 
120. 

Affirmed. 



Werborn v. Pinney. 

Motion to vacate and annul, in part. Probate Decree rendered 
on Pinal Settlement of Executor'' s Accounts. 

1. Motion to qtiash execution; what grounds available. — On motion to 
quash an execution, issued on a probate decree rendered on the final set- 
tlement of an executor's accounts, evidence dehors the record, showing 
that the court had no jurisdiction of the settlement, "probably comes 
too late." 

2. Merger of judgment by affirmance. — When a judgment or decree is 
affirmed by this court on appeal, the decree or judgment of the court 
below is merged in the judgment of affirmance ; and that court can not 
afterwards make any order modifying or altering it. 

Appeal from the Probate Court of Mobile. 
Tried before the Hon. Price Williams, Jr. 
On the tinal settlement of the accounts of George F. Wer- 



292 SUPREME COURT [Dec. Term, 

[Werborn v. Pinney.] 

born, as executor of the last will and testament of Adolph M. 
Solomon, deceased, a decree was rendered by said Probate 
Court, on 11th July, 1881, by which a balance of $203.37 was 
ascertained to be due from the executor; and the decree then 
proceeded thus : " And the said executor is hereby directed to 
pay the said halance of $203.37 over to said Amanda M. Pin- 
ney'''' [the widow of the testator, she having married again], 
" U) he hy her received^ held and applied^ as directed by the will 
of said testator' and to enforce the payment thereof execution 
may issue in her favor against the said We?'horn, if necessary. 
The court finds and decrees, also, that the said Amanda M. 
Pinney is entitled to have and receive from the said executor 
all the property of said estate not disposed of in course of ad- 
ministration ; and thereupon the executor shows to the court, 
that he turned over and delivered to the said Amanda M. 
household furniture and a gold watch, amounting to the sum 
of $534, which is admitted by the said Mrs. Pinney ; and it 
appearing that the only property now remaining is the follow- 
ing," specifying some shares of railroad stock, "a lot of land 
in the city of Mobile, and goods on hand originally appraised 
at $973 ; it is therefore ordered, that said executor dehver and 
give possession of said lot of land., goods, shares of stock and 
assets, to her, the said Amanda M. Pinney, to be received, held 
and applied by her, as directed in the will of the said testator', 
and, upon compliance therewith, that he be and is hereby dis- 
charged. And this decree is entered as a final settlement of 
all matters for which said executor is chargeable." 

On appeal to this court by Mrs. Pinney, this judgment and 
decree was affirmed, as shown by the report of the case — Pin- 
ney V. Werborn, 72 Ala. 58, An execution was afterwards 
sued out on the decree, which the executor moved to quash ; 
and on the hearing of this motion, he reserved a bill of excep- 
tions to the judgment overruling his motion, and to the exclu- 
sion of the evidence offered in support of it; but the judgment 
was affirmed on his appeal. — Werbor7i v. Pinney, 74 Ala. 590. 
Afterwards, the executor submitted a motion to " vacate, annul 
and set aside so much of the said decree rendered on the 11th 
July, 1881," as is shown by the italicized words above, "be- 
cause said order is null and void, and in excess of the jurisdic- 
tion conferred upon said court by law." The grounds of the 
motion were thus stated : " That by the last will and testament 
of said Solomon, on the files and records of this court, it ap- 
pears that said balance of $203.37 is trust funds in petitioner's 
hands, under the terms of said will ; and because it further ap- 
pears from said records and files that 13. L. Tim (or Timer), 
who was named as co-executor in said will, declined to accept 
said nomination, and declined to qualify as such executor." 
Vol. lxxvi. 



]«84.] OF ALABAMA. 293 

[Werbom v. Pinney.] 

"That by the last will and testament of said Solomon, in the 
files and records of this court, it appears that said lot of land, 
jijoods, shares of stock and assets are trust funds in petitioner's 
hands, under the terms of said will ; and because it further ap- 
pears from said tiles and records that B. L. Tin) (or Timer), 
who was named as co-executor in said will, declined to accept 
said nomination, and declined to qualify as such executor." 
"That it appears from the files and records of said court, in 
said cause, that said Amanda M. Pinney is a femme covert^ 
having a husband (John Pinney) living, and they do not show 
that she was ever made a free-dealer, by any law, or by any de- 
cree of any court." The court overruled and refused the mo- 
tion, and its judgment thereon is now assigned as error. The 
judgment itself recites that the executor "excepted to the 
ruling of the court," but there is no bill of exceptions in the 
record. 

F. Ct. Bkombero. for the appellant. — When a judgment or 
decree is partly valid, and partly void, the good part stands, if 
it can l)e separated from the bad, and the latter is treated as 
surplusage, so that a formal order vacating it is not necessary. 
Horn V. Lockhart^ 17 Wall. 579 ; Bradley v. Fisher, 13 Wall. 
351 ; Ex parte Lange, 18 Wall. 175 ; Windsor v. Mc Vei(/h, 
93 U. S. 282 ; Yonlef/ v. Lavender, 21 Wall. 280. But a void 
judgment or decree may at any time be set aside by the court 
which rendered it ; and the most judicious course is to assail it 
there by motion, since an appeal does not lie from a void de- 
cree. — Hays V. Cockrell, 41 Ala. 87; Buchanan v. Thmnason, 
70 Ala. 402; Johnson v. Johnson, 40 Ala. 251 ; Summersett v. 
Snmmersett, 40 Ala. 598; Moore v. Easley, 18 Ala. 623; Bah- 
Gock V. Williams, 9 Ala. 152 ; Ansley v. Pearson, 8 Ala. 437. 
The decree here assailed, or the part sought to be vacated, is 
not only irregular on its face, but void for want of jurisdiction ; 
and the facts showing its invalidity atRrmatively appear from 
the tiles and records of the court, in the matter of this final 
settlement. 

STONE, C. J. — Werbom was executor of the will of Adolph 
M. Solomon, deceased, and was brought to a final settlement of 
his administration, at the instance of Amanda M., the widow, 
who had intermarried with one Pinney. The settlement was 
had in the Probate Court. In filing his account for settlement, 
the executor had set forth, as the persons entitled to share in 
the estate, Mrs. Pinney, testator's surviving wife, and Adolpha, 
his ouly child, an infant over fourteen years of age. A 
guardian ad litsm was appointed to represent the interests of 
the infant, who filed exceptions to the account filed by the ex- 



294 SUPREME COURT [Doc Term, 

[Werborn v. Pinney.] 

ecutor. On the motion of the executor, the Probate Court 
ruled that Adolpha had no interest in the settlement, revoked 
the order appointing a guardian ad litem^ dismissed her as a 
party, and rejected the exceptions to the executor's account, 
which had been filed for her. The settlement was then had on 
the executor's account filed, and Mrs. Pinney's exceptions 
thereto. A decree was rendered, that the executor pay to her 
a fraction over two hundred dollars, and that he surrender to 
her certain property of the estate, which remained in specie. 
Adolpha, the infant, had excepted to the action of the court, in 
disallowing her as a party ; and Mrs. Pinney sought to raise 
certain questions for revision in this court, in which she com- 
plained that the Probate Court had ruled to her prejudice. An 
alleged misunderstanding caused delay in the preparation and 
execution of a bill of exceptions, taken in the interest of Mrs. 
Pinney, who appealed from the Probate Court to this court. 
When the case reached this court, Werborn, the appellee, 
moved to strike the bill of exceptions from the transcript, on 
the ground that it was not signed in time ; and that motion 
prevailed. This case then came before us as an ordinary ap- 
peal from a decree of the Probate Court, rendered in an execu- 
tor's final settlement. 

As a general rule, the Probate Court has jurisdiction of the 
settlements of executors and administrators. There are excep- 
tions to the rule, but they rest on special circumstances. When 
there is no invocation of powers which the Probate Court is 
incompetent to exercise, its jurisdiction is plenary. After the 
bill of exceptions in this case was struck out, there was nothing 
to show the Probate Court had not jurisdiction of every ele- 
ment of the contention, or that there had been error in any of 
its rulings. We affirmed the ruling of the Probate Court. 
Pinney v. Werhorn, 72 Ala. 58. 

After the affirmance in this court, an execution was issued 
from the court below, for the enforcement of the affirmed de- 
cree. Werborn thereupon moved to quash the execution, upon 
the alleged ground that the Probate Court had no jurisdiction 
to render the decree in the first instance. He offered evidence 
dehors the record proper, to show the want of jurisdiction. 
Having failed to produce the evidence in the first trial, it )s 
probable the offer came too late. The execution pursued the 
decree, and the record, considered as truth, showed the court 
had jurisdiction of the subject-matter. The parties are con- 
cluded, for they are shown by the record to have i)een before 
the court. 

We need not, however, decide this question. When the de- 
cree was affirmed in this court, the judgment of the lower 
court became thereby so merged in the judgment of this court. 

Vol. lxxvi. 



1884.] OF ALABAMA. 295 

[Otia V. Maguire.] 

that tliat court could make no order, altering or modifying the 
terms of its rendering. — Wiswell v. Munroe^ 4 Ala. 9, 19; 
Stevens v. Norrls, 15 Ala. 79 ; Norris v. Cotirell, 20 Ala. 304; 
Mc Arthur v. Dane, 61 Ala. 539. 

Possibly Adolpha, the daughter, who has an interest in re- 
mainder, can, by a proper proceeding, prevent the personal 
property remaining in specie from going into the hands of her 
mother. — Mason, v. Pate, 34 Ala. 379. 

The decree of the Probate Court is affirmed. 



Otis 1?. Maguire. 

Bill in Equity hy Creditors, to have Conveyance declared 
General Assignment. 

1. Absolute sale mid co)ireyance ; not declared general assignment. 
An absolute, unconditional sale and conveyance of his property by a 
debtor, free from all reservation, in payment and satisfaction of antece- 
dent debts, can not be declared a general assignment, enuring to the 
benefit of all his creditors ecjually (Code, ^ 2126; Sess. Acts 1882-3, p. 
189), although it may embrace all his property, and he is insolvent. 

Appeal from the Chancery Court of Mobile. 

Heard before the Hon. John A. Foster. 

The bill in this case was filed on the 10th November, 1884, 
by William Otis, a creditor of John Maguire, on behalf of him- 
self and all other creditors who might come in and make them- 
selves parties complainant with him, against the said John Ma- 
guire and several other persons ; and sought to have a certain 
conveyance, which said Maguire had executed to his co-defend- 
ants, declared and established as a general assignment, enuring 
to the beneiit of all of the grantor's creditors e(|ually. The 
conveyance, a copy of which was made an exhibit to the bill, 
was dated October 13th, 1883, and contained recitals and stipu- 
lations as follows : 

" Whereas the undersigned. John Maguire, of the city of 
Mobile, Ala., is justly indebted as is set forth in the schedule 
hereto attached, the whole of said indebtedness being this day 
the sum of $52,800, computing interest to date on such part 
thereof as is past due, and abating interest from this date to the 
maturity of such part thereof as is not yet due : And whereas 
Peter Burke, also of said city, and mentioned in said schedule, 
has agreed and undertaken, in consideration of the interest iu 
real and personal property hereinafter sold and conveyed to 



296 SUPREME COURT [Dec Term, 

[Otis V. Maguire.l 

him, to accept such interest in full satisfaction and discharge of 
said Magnire's indebtedness to him, asset forth in said schedule, 
amounting to $1,175 ; and to fully pay and satisfy the whole 
of each of the promissory notes upon which he is the sole in- 
dorser, and the bill of exchange of which he is the acceptor, as 
set forth in said schedule, amounting to $11,210.4:9 ; and to 
hold the said Maguire safe and harmless against paying any 
part of said promissory notes and bill of exchange ; and to fully 
pay and satisfy one-half of each of the promissory notes upon 
which he is one of the indorsers, as set forth in said schedule, 
the whole of the one-half to be so paid by him amounting to 
the sum of $6,844.42, and to hold the said Maguire safe and 
harmless against paying each of said promissory notes, to the 
extent of one-half thereof : Now therefore, in consideration of 
such undertaking and agreement on the part of said Burke, the 
said Maguire does by these presents grant, bargain, sell, convey, 
transfer and set over, unto the said Peter Burke, an undivided 
interest in all the property, real and personal, liereinafter de- 
scribed ; such undivided interest being such proportionate share 
of the whole thereof, as is the proportion of the aggregate 
amount of the indebtedness to him so satisfied, and that of 
which he has so assumed the payment, to the whole amount of 
the indebtedness set forth in said schedule." 

The conveyance contained similar recitals and stipulations as 
to the debts due to each of the other grantees, ten in all, or the 
debts assumed by them, and for which they were liable as surety 
or indorser for the said Maguire. The property conveyed con- 
sisted of certain real estate in the city of Mobile, a dredge-boat 
and snag-boat, with their furniture, tackle and appliances, the 
stock of goods then on hand belonging to said Maguire as a 
merchant, with all the debts then due to him, whether by note, 
bill of exchange, account, or otherwise ; and this property was 
conveyed to the said grantees, " to have and to hold as their own 
absolute property, in the several proportions in which the same 
has hereinbefore been conveyed to them." The bill alleged that 
Maguire was utterly insolvent at the time of the execution of 
this conveyance, and that it embraced all his property of every 
description, and was in legal operation and effect a general as- 
signment, though claimed by the grantees to be an absohjte sale 
and conveyance ; and it prayed that the conveyance be declared 
a general assignment, and for an account and general relief. 

The chancellor sustained a demurrer to the bill, for want of 
equity, on the ground that the conveyance was an absolute and 
unconditional sale, and could not be declared a general assign- 
ment ; and his decree is now assigned as error. 

Jambs Bond, for the appellants. — The demurrer admits the 
Vol, i^xxvi. 



1884. J OF ALABAMA. 297 

fOtis V. Maguire.J 

insolvency of the debtor, and that the conveyance embraces all 
of his property ; and the conveyance shows on its face that it 
18 an attempt to provide for the payment or security of certain 
preferred creditors, to the exclusion of all others. No valua- 
tion is placed on the properly, and no particular portion or in- 
terest is conveyed to each grantee, but only an undivided inter- 
est proportioned to his debt or liability. It is an attempt to 
accomplish by evasion and indirection what the law prohibits 
when done directly; and it can not receive the sanction of a 
court of equity, which looks to the substance rather than the 
form of things. Such a conveyance is not declared void, but 
it is in legal effect a general assignment. — Holt v. Chambers, 
30 Ala. 193 ; Price v. Mazange, 31 Ala. 701 ; Warren v. I^e, 
32 Ala. 440 ; Lm\gndre i). Goode tfe Ulrick, 38 Ala. 577 ; 
Murphy V. Caldwell, 50 Ala. 461 ; Teal v. /Shirley, 67 Ala. 
449 ; Danner v. Brewer, 69 Ala. 191. The consideration mov- 
ing from some of the grantees is their promise to pay certain out- 
standing debts, for which they were already liable ; and this 
might be enforced by the creditors, as a trust for their benefit. 
Toulndn v. Hamilton, 7 Ala. 362 ; Ohio Life Ins. cfe Tr. Co. 
V. Ledyard, 8 Ala. 866 ; Moses v. Murgatroyd, 1 John. Ch. 
129. Whenever a general assignment is executed for the benefit 
of preferred creditors, the statute engrafts upon it, whatever 
may be its form, a trust for the benefit of all creditors. — 69 
Ala. 199. 

R. H. Clarke, and J. L. & G. L. Smffh, contra, cited Craw- 
ford V. KirJesey, 55 Ala. 294 ; Danner v. Brewer, 69 Ala. 200 ; 
Johnson v. McGrew, 11 Iowa, 151 ; 47 111. 521 ; 23 Ind. 285 ; 
57 Penn. St. 221 ; Anderson v. Anderson, 64 Ala. 405 ; Lock- 
ardv. JVash, 64 Ala. 385 ; Bibb v. Freeman, 59 Ala. 612 ; 
Eshridge v. Abrams, 61 Ala. 139 ; Ilarkinsv. Bailey, 48 Ala. 
376 ; Com. Bank v. Brewer, 71 Ala. 574 ; Iluckabee v. May., 
14 Ala. 263. 

SOMKRVILLE, J, — The question presented in this case is, 
whether an absolute and unconditional sale of a debtor's prop- 
erty to his creditors, for a valuable consideration, can be de- 
clared an assignment, within the meaning of section 2126 of 
the Code. This section, as amended by an act approved Feb- 
ruary 23, 1883, provides, that "every general assignment made 
by a debtor, by which a preference or priority of payment is 
given to one or more creditors over the remaining creditors of 
the grantor, shall be and enure to the benefit of all the creditors 
of the grantor equally ; but this section shall not apply to, or 
embrace mortgages, given to secure a debt contracted contem- 
poraneously with the execution of the mortgage, and for the 



298 SUPREME COURT [Dec. Term, 

[Steed V. Hinson.] 

securit}' of wliich the mortgage was given." — Acts 1882-83, 
p. 1S9. 

The case of Danner & Co. v. Brewer cfe (7«9., 69 Ala. 191, is 
an authority directly in point upon the question before us. It 
was there decided that an absolute sale, unconditional and free 
from all reservation, which is executed in payment or satisfac- 
tion of antecedent debts, is not an assignment, and does not 
come within the statute. The species of transaction, against 
which the statute is levelled, is distinguishable from a mere 
sale. It involves the transfer by a debtor of property by mort- 
gage, deed of trust, or other conveyance intended as a semirity 
for, and not in payment or satisfaction of a debt due his creditor. 
It therefore implies the idea of a trust, under the operation of 
which there is the possibility of a reversion to the debtor of 
some interest in the proceeds of sale of the property assigned. 
When the debts intended to be secured are paid, tlie surplus, 
after deducting lawful expenses, goes back to the debtor. Such 
an assignment does not, ipso facto, like a sale, satisfy the claims 
of the creditors to any extent, but only " provides a method 
for raising the means with which to pay them." — Burrill on 
Assign. (4th Ed.) § 4 ; Behh v. Preston, 1 Iowa, 400 ; Blank v. 
German, 5 Watts & Serg. 36; Danner v. Brewer, supra j 
Shirley v. Teal, 67 Ala. 449 ; Corn.. Bank v. Brewer, 71 Ala. 
574; Bump on Fraud. Conv. (3d Ed.) 329-30. 

The decree of the chancellor, sustaining the demurrer to the 
bill, is free from error, and must be affirmed. 



Steed V. Hinson. 

Action hy Lessor, on Wiitte7i Contract for Rent. 

1. Rent as incident to reversion. — Rent is an incident of the reversion, 
and passes with it to an assignee, unless expressly reserved or severed. 

2. Parol evidence, as to consideration of deed. — The consideration 
clause of a deed is alwaj's open to inquiry or explanation, and the true 
consideration may l)e shown by parol, except when different in character, 
or inconsistent with that recited or expressed. 

3. Same. — Where rented lands are sold and conveyed by deed, on a 
recited consideration of money in hand paid, it is competent for the 
lessor and vendor, in a subsequent action against the tenant on the rent- 
contract, to show by parol that, by the terms of the contract of sale, the 
note for rent was reserved and retained by him, as a part of the consid- 
eration, in addition to the sum specified in the conveyance. 

Ai'i'KAL from the Circuit Court of Lowndes. 
Tried before the Hon. John Mooke. 
Vol. lxxvi. 



18S4.J OF ALABAMA. 299 

[Steed V. Hinson.] 

TliiB action was hronglit by Mrs. Mary E. Steed (formerly 
Ray), aojaiiist J. L. Ilinson ; and was founded on the defend- 
ant's written contract for tlie payment of rent, whicli was dated 
Nov. 14tli, 1881, and in tiiese words: ''On or by the first day 
of October, 1882, I promise to pay M. E. Ray twelve hundred 
ar)d fifty lbs. lint-cotton, to be packed in jnerchantable form, 
and delivered at Fort Deposit; the same being for rent of her 
entire plantation and premises near Mount Willing, Lowndes 
county, Alabama." The defendant pleaded not guiliy, pay- 
ment, failure of consideration, and a special plea which averred 
that, in June, 1882, before the rent became due, plaintiff sold 
and conveyed the rented lands to one Favors, and by virtue 
thereof the right to the rent passed to and vested in said Favors. 
There was a demurrer to this special plea, which was overruled 
by the court ; and the plaintiff then filed a special replication 
to it, averring " that the note now sued on was part of the con- 
sideration money paid by said P'avors to plaintiff on the pur- 
chase of said lands, and defendant had full knowledge of that 
fact i)efore tiie said rent became due." There was a demurrer 
to this replication, which the court overruled ; and issue was 
then joined on it, as on the other pleas without objection. 

On the trial, a bill of exceptions was reserved by the plaintiff, 
as follows: "The plaintiff read in evidence the written contract 
described in the complaint, and introduced evidence showing 
that the defendant had rented certain lands from her for the 
year 1882, and had given her the said writing in consideration 
of the said renting; and the plaintiff" here rested. The de- 
fendant then offered evidence tending to show that, in June, 
1.S82, plaintiff sold and conveyed, by warranty deed, to one 
Favors, the said rented premises ; that said deed purported to 
be upon the consideration of $000, and mentioned no other 
consideration, and made no reservation of the rent of said lands 
for the year 1882; and that he (defendant) had paid and de- 
livered to said Favors the rent due by said contract, but after 
he had notice that plaintiff still claimed and held said written 
contract given for the rent. The plaintiff then offered parol 
evidence tending to prove that the real coTisideration of the 
said sale of the lands was $600 and the said rent-note described 
in the complaint; which said note, or written contract, by the 
consent of said Favors, and in pursuance of the said terms of 
sale between them, plaintiff retained as her own, upon the de- 
livery of the deed for said lands. On objection by the defend- 
ant, that said evidence was illegal and inadmissible, because it 
was of a parol nature, and tended to vary or contradict the 
legal effect of the said conveyance, the court refused to allow 
said evidence to be introduced ; to which ruling of the court 
the plaintiff duly excepted." 



300 SUPKEME COURT [Dec. Term, 

[Steed V. Hinson.] 
The exclusion of this evidence is now assigned as error. 

GuNTER & Blakey, for tlie appellant, cited Driver v. Huds- 
peth, Ifi Ala. 348; McKeagg v. CoUehan, 13 Ala. 828; Ki7'h- 
sey V. Bates, 1 Ala. 303 ; Gayle v. Handle, 1 Stew. 529 ; Pat- 
ton v. Gihner, 42 Ala. 548; Mead v. Steger, 5 Porter, 498; 
Shmmton. v. /Steele, 1 Ala. 357 ; LitGhfield v. Falconer, 2 Ala. 
380; CntJthert v. Bowie, 10 Ala. 163; La Rogue v. Russell, 
7 Ala. 798 ; Brown v. Isbell, 11 Ala. 1009 ; MoGeheev. Ramp, 
37 Ala. 654; Woola7n v. Beam, 2 Lead. Cases, 946, 4th Ainer. 
ed., and cases cited in note; Terry v. Wheeler, 25 N. Y. 520; 
Filkins V. Whylan, 24 N. Y. 338; Potter v. HopUns, 25 
Wend. 417; Barker v. Bradley, 42 N. Y. 316; Crane v. 
Library Co., 5 Dutcher, 302 ; Whitheck v. Waine, 16 N. Y. 
532. 

Houghton & Tyson, contra, cited English v. Key, 39 Ala. 
113; Tubh v. Fort, 58 Ala. 277; Hand v. Liles, 56 Ala. 143; 
Westmoreland v. Foster, 60 Ala. 448; Lovelace v. Webb, 
62 Ala. 271 ; Gaylx v. Randall, 71 Ala. 469 ; Otis v. Mc- 
Millan, 70 Ala. 46 ; 4 Wait's Ac. & Def. 198 ; Davis v. Las- 
siter, 20 Ala. 561 ; Melton v. Watki7is,24: Ala. 433; Huffman 
V. Hummer, 17 N. J. Eq. 269 ; French v. Griffin, 18 N. J. 
Eq. 279 ; Williams v. LTiggins, 69 Ala. 517 ; Goodlett v. Han- 
sell, QQ Ala. 151; Flint v. Sheldon, 13 Mass. 443; 2 Ililliard 
on Torts, 342 ; 32 N. J. Eq. 222, 233 ; 1 Brick. Digest, 865, 
§§ 866-7 ; Green v. Casey, 70 Ala. 417 ; Bank v. Railroad Co., 
69 Ala. 305. 

CLOPTOI^, J. — " Rent is incident to the reversion ; and the 
lessor's transfer of the reversion, though without the tenant's 
attornment to the assignee, or any express mention of the rent, 
carries with it the rent falling due thereafter. The holder 
of the reversion may, indeed, sever the rent from the rever- 
sion ; but, unless it is specially severed, the rent follows the 
reversion as a part of the realty." — Fnglish v. Key, 39 Ala. 
113. Whether there may be a parol reservation of the rent, 
where the lessor absolutely conveys the reversion, and the 
grantee pays the full consideration otherwise, is a question not 
involved in the record, and which we leave undecided. The 
contention is, whether it is competent to show, by parol evi- 
dence, that the real consideration of the sale of the lands was 
the sum of six hundred dollars — the consideration expressed 
in the conveyance — and the defendant's written contract for 
the rent, which the plaintiff, on the delivery of the deed, 
retained with the consent of her grantee, in pursuance of the 
terms of sale. 

Vol. XXVI. 



1884.] OF ALABAMA. 301 

[Steed V. Hinson.] 

The consideration clause of tlie deed is not conclusive. The 
validity of the conveyance does not depend on the amount of the 
consideration expressed therein, and it is not presumable that 
the attention of the parties was specially directed to the sub- 
ject. The recitals of the consideration, general or special, are 
always open to inquiry, and the true consideration may be 
shown, to sustain, vary, or defeat them. It is not permissible 
to prove a consideration different in character, or inconsistent 
with the one expressed ; but, when the consideration recited is 
valuable, the amount may be lessened or enlarged by extrinsic 
evidence. Parol evidence, for this purpose, is not regarded 
as tending to vary or contradict the terms or legal effect of the 
deed. The amount of the consideration, or whether it was 
money or some other property, or both, is not deemed an essen- 
tial element of the contract ; and an additional consideration to 
that shown in the deed may be shown by parol. — McGehee v. 
Rump, 37 Ala. 651 ; Wilksrson v. Tillman, 66 Ala. 532 ; 
Stringfelloio v. Ivie, 73 Ala. 209. 

Section 2099 of the Code makes all contracts and writings 
for the paj'ment of money or other thing, or for the perform- 
ance of any act or duty, assignaiile by indorsement, so as to 
authorize an action thereon by each successive indorsee. This 
statute was intended to provide a mode of assignment by which 
the assignee may bring suit in his own name. Independent of 
the statute, such contracts are transferable by delivery; and the 
only limitation is, that an action thereon, if the contract be not 
for the payment of money, shall be brought in the name of 
the party having the legal title, for the use of the transferree. 
Smith V. Wooding, 20 Ala. 324 ; Phillips v. Sellers, 42 Ala. 658 ; 
Henly v. Bush, 33 Ala. 611. There is nothing in the form or 
nature of the contract sued on, that defeats its assignability, 
unless it be the particular consideration, — rent of land. 

In Thompson v. Spinks, 12 Ala. 155, it was held, that the 
effect of the statute then in force, giving a landlord a lien, was, 
"that rent in arrears, or falling due, is merely a debt due from 
the tenant to the landlord, for the payment of which the latter 
has a lien on the crop grown on the premises." And in West- 
moreland V. Foster, 60 Ala. 448, it was held, that the lien ex- 
ists independent of the remedy by attachment, given to the 
landlord to enforce it, and passes by assignment of the rent- 
note. The statute at that time not extending the remedy by 
attachment to the assignee, the lien was enforced in his favor 
by bill in equity. The claim of the landlord for rent was 
assignable, previous to the enactment of section 3470, and the 
assignment carried with it the lien of the landlord. Such 
claims were not exceptions from other contracts for the pay- 
ment of money or other thing. 



302 SUPREME COURT [Dec. Term, 

[Steed V. Hinson.] 

But, however this may have been, snch claims are made 
assignable by section 3470, which provides : " The claim of the 
landlord for rent, and advances and property obtained, with 
values advanced, may be assigned by the landlord ; and the 
assignee shall be invested with all the rights of the landlord, 
and be entitled to all his remedies to enforce them." It is 
manifest that the effect of the statute is, to authorize a sever- 
ance of the claim for rent from the reversion ; and this may 
be shown by parol evidence, where such evidence does not 
tend to contradict or vary the terms or legal effect of the deed. 
In Quvtnhy v. Stehhins, 55 I^. H. 420, parol evidence was ad- 
mitted to prove a contract, that the vendor should occupy the 
premises sold for a designated term thereafter, as part of the 
consideration of the conveyance. Gushing, C. J. said : " But 
the defendant, not denying the plaintiff's right to the posses- 
sion of the lands, and not denying that he would liable to pay 
for it, and not denying the receipt of the consideration so far 
as is necessary to support the deed, proposed to show that a 
part of the consideration of the deed was, by agreement, to be 
applied in payment of this rent. If so much of the consider- 
ation of the deed had been left in the plaintiff's hands unpaid, 
the defendant might have maintained an action to recover the 
balance. He may equally well show, that so much of the con- 
sideration money of the deed has been paid by the plaintiff 
and received by him, by its being appropriated to the payment 
of this YQWty—Kent v. Kent, 18 Pick. 569 ; Prchh v. Bald- 
win, 6 Gush. 649. 

The plaintiff does not controvert, that by the grant her 
grantee acquired an equitable right to the rent-contract, ds an 
incident to, and as following the reversion. But, conceding 
this, she proposed to provx a fact independent of the terms or 
legal effect of the conveyance, — a collateral agreement inci- 
dentally connected with its stipulations. — Davenport v. Mason, 
15 Mass. 85. If a part of the consideration money had been 
left unpaid, and some time afterwards, the rent-contract having 
been previously delivered, her vendee had re-delivered it to her 
in payment of such unpaid balance, her right to recover from 
the defendant would not be questioned. What difference, in 
principle, does it make, that, instead of the mere form of an 
instantaneous manual delivery and re-delivery, the plaintiff was 
allowed to retain the contract in part payment of the consider- 
ation of the conveyance \ No indorsement, or other written 
assignment, was necessary to vest the legal title. The contract 
being payable to her, tiie legal title was, and remained in her; 
and the retention of the note as part payment, with the con- 
sent of the vendee, and in pursuance of the terms of sale, re- 
united in l)er the legal and equitable title. 

Vol.. LXXVI. 



1884.] OF ALABAMA. 303 

f Ala. Great Southern Railroad Co. v. Hill.l 

For the purpose for which it was offered, the parol evidence 
sliould have been admitted. 
Keversed and remanded. 



Ala, Great Southern Railroad Co. v. 

Hill. 

Action for Wages^ by Agent against Principal. 

1. Appointment of agent by corporation; when implied. — The appoint- 
ment of an agent by or for a corporation, as by a natural person, may be 
implied from a confirmation of his acts, or an acceptance of his services 
without objection ; and after such confirmation, or acceptam-e, the cor- 
poration can not evade payment for his services by denying the validity 
of his appointment. 

2. Extent of agent's authority. — Authority to do an act includes authority 
to do every thing necessary and usual to its accomplishment; and au- 
thority to employ an agent or servant includes, in the absence of restrict- 
ive words, authority to make a complete contract, definite as to tiie 
amount of wages, as to all other terms. 

3. Contract of employment ; compensation agreed on. — A contract of 
employment may be express and definite as to all its terms, or it may be 
partly exjiress and partly left to implication ; and when services are per- 
formed under an express contract of employment, the wages or compen- 
sation not being specified, a recovery may be had under a gnanttim 
meruit. 

4. Declarations of agent ; when admissible as evidence against princi- 
pal. — A depot-agent in the employment of a railroad company being no- 
tified by the superintendent to report for instructions to the assistant su- 
perintendent, and, on so reporting, being informed that the latter desired 
to transfer him to another station on the road ; the transfer being made, 
and the depot-agent afterwards suing the railroad company for increased 
compensation, as prfimised by the assistant superintendent; held, that 
the statements and declarations of the assistant superintendent, while 
negotiating for the transfer, and up to the completion of the contract, 
were competent evidence against the railroad company. 

Appeal frotri the Circuit Court of Greene. 

Tried before the Hon. S. H. Sprotf 

This action was brought by John R. Hill, against the appel- 
lant, a domestic corporation, to recover an alleged balance due 
plaintiff for wages, or compensation, as defendant's depot-agent 
and telegraph operator at Eutaw, on the line of the defendant's 
road, from December, 1878, until June 1st, 1883, under a spe- 
cial contract of employment at the salary of $75 per month. 
The plaintiff had received payment, at the end of each month, 
to the amount of $50 per month, except for the months of 
April and May, 1883 ; and he claimed in his complaint his 
wages for each of those months, at the rate of $75 per month, 



304 SUPREME COURT [Dec. Term, 

[Ala. Great Southern Railroad Co. v. Hill.] 

and an unpaid balance of $25 per month for eacli of the prece- 
ding months. The record does not show what pleas were iiled, 
but there was a judgment on verdict for the plaintiff, for 
$1,752.23, the full amount claimed. 

On the trial, a bill of exceptions was reserved by the defend- 
ant, which purports to set out all the evidence ; but the opin- 
ion of this court, which states tiie material facts as to plaintiff's 
appointment as depot-agent at Eutaw, renders a full statement 
of the facts unnecessary. Several exceptions were duly reserved 
by the defendant to the rulings of the court in admitting as 
evidence, against the defendant's objections, conversations be- 
tween plaintiff and one Wadsworth, who was assistant superin- 
tendent of defendant's road, and by whom, as plaintiff claimed 
and testified, he w^as placed at Eutaw as depot-agent, and his 
salary fixed at $75 per month ; which conversations, as testified 
to, took place while said Wadsworth and plaintiff were on the 
cars going to Eutaw, and at different times afterwards ; and in 
which Wadsworth stated, in reply to plaintiff 's inquiry, that 
his salary would be $75 per month, and repeatedly promised to 
have his salary so specified on the monthly pay-roll. Similar 
declarations on the part of Wadsworth were proved by other 
witnesses, and were admitted as evidence by the court against 
the objection and exception of the defendant. The court 
charged the jury, on the request of the plaintiff, " that if Wads- 
worth had authority to put Hill in charge of the depot as agent 
at Eutaw, and to establish him as such agent at that place, then 
such authority carried with it the power to agree with Hill as 
to the amount he should be paid for his services." The defend- 
ant excepted to this charge, and requested, among others, the 
following charge : (10.) " Unless the general superintendent of 
said defendant company had notice of the amount agreed by 
Wadsworth to be paid to plaintiff, per month, then it was no 
ratification of said contract to allow plaintiff to remain as agent 
at Eutaw, if the jury believe, from the evidence, that the pay- 
rolls for each month were made out for said services as agent 
at $50 per month." The court refused this charge, and the de- 
fendant excepted to its refusal. 

The several rulings of the court admitting as evidence the 
declarations and statements of Wadsworth, the charge given, and 
the refusal of the charges asked, are now assigned as error. 

S. F. Rice, Wood & Wood, and J. P. McQueen, for appel- 
lant. — Railroad companies are not responsible for the declara- 
tions or admissions of their servants, beyond the immediate 
sphere of their agency, and during the transaction of the busi- 
ness in which tliey are employed. — Railroad Co. v. Stults, 15 
Amer. & Eng. Railroad Cases, 97; Dozier v. Freeman^ 47 

Vol, lxxvi. 



1884.] OF ALABAMA. 305 

[Ala. Great Southern Railroad Co. v. Hill.l 

Miss. 747 ; Rives v. Plank-road Co.^ 30 Ala. 92 ; Ready V 
Mayor, 6 Ala. 327 ; Raihoay Co. v. Jones, 22 Wise. 194 ; 1 
Brick. Digest, 63, § 160. When a person deals with an agent, 
he is bound at his peril to ascertain the extent of the agent's 
authority. — 1 Brick. Dig. 55, § 35 ; Gullett v. Lewis, 3 Stew. 
23 ; Fisher v. Campbell, 9 Porter, 210 ; Railroad Co. v. Suits, 
supra ; Cummins v. Beaumont, 68 Ala. 204 ; Van Eppes v. 
Smith, 21 Ala. 317; Powell v. Henry, 27 Ala. 612; IJowe 
Machine Co. v. Ashley, 60 Ala. 496. To avoid the act of the 
agent, when he has exceeded his authority, the principal is not 
bound to give notice of his dissent. — Wright v. Evans, 33 Ala. 
104 ; Pmjoell v. Henry, 27 Ala. 612. The fact that a person 
acts as the agent of another, does not prove the agency : that 
must be proved by other evidence, before it can be assumed. 
Scarborough v. Reynolds, 12 Ala. 252 ; McDougald v. Daw- 
son, 30 Ala, 553 ; Kidd v. Cromwell, 17 Ala. 648. The acts or 
declarations of a person who assumes to act as the agent of an- 
other, are not admissible as evidence against his supposed prin- 
cipal, without some independent proof of his authority or 
agency. — Wailes v. Neal, 65 Ala. 59 ; Bynum v. So. Pump 
Co., 63 Ala. 462 ; Womack v. Bird, 63 Ala. 500 ; Railroad 
Co. V. Hawk, 72 Ala. 112. As to what notice is necessary to 
charge the principal, see Reidv. Bank of Mobile, 70 Ala. 199 ; 
Hinton v. Insurance Co., 63 Ala. 488 ; Railroad Co. v. Ma- 
ples, 63 Ala. 601 ; Railroad Co. v. Stephenson, 2 Duer, 341. 
When it is proposed to hold the principal liable for the unau- 
thorized act of his agent, on the ground that he did not disown 
it, it must be shown that he had knowledge of it. — Clark v. 
Taylor <& Co., 68 Ala. 453 ; Chapman v. Lee, 47 Ala. 143 ; 
Miller v. Board of Education, 44 Cal. 166; Smith v. Tracy, 
36 N. Y. 79 ; L^st^ v. JCinne, 37 Conn. 9 ; Abbott v. May, 
50 Ala. 97 ; Hortons v. Townes, 6 Leigh, 47 ; Croker v. Apple- 
ton, 25 Maine, 131 ; Howe Machine Co. v. Ashley, 60 Ala. 498. 

J AS. B. Head, contra. — The several exceptions to the ad- 
mission of evidence showing that Wadsworth made the con- 
tract, are not well taken, if, in the plaintiff's whole case, there 
is evidence tending to show that he was so authorized. — RJiodes 
V. Lowery, 54 Ala. 4. Authority to do an act necessarily 
carries with it authority to do all things essential to its accom- 
plishment. — Story on Agency, §§ 58, 85, 97 ; 1 Brick. Dig. 56, 
I 44 ; Angell & Ames on Corp., §§ 238, 284. Under the cir- 
cumstances of the case, plaintiff was justified in contracting 
with Wadsworth, whether the latter was specially authorized 
or not. — 44 Amer. Dec. 665, 669 ; Story on Agency, §§ 
126-28 ; Baldwin v. Ashley, 54 Ala. 82 ; Wharton on Agency, 
§ 159 ; 35 Amer. Dec. 358. No question of estoppel arises. 
20 



306 SUPREME COURT [Dec. Term, 

[Ala. Great Southern Railroad Co. v. Hill.] 

If there was an express contract for $75 per month, tlie right 
of the parties are to be determined by it. 

STONE, C. J. — The ancient rule, wliich bound down cor- 
porations to very strict observance of forms in the execution of 
powers conferred upon them, has been greatly relaxed. This 
has grown, in part, out of the vast increase of their numbers, 
and their adaptation to the growing wants of commerce. In 
the case of Ala. & Tenn. Rivei^s R. R. Co. v. Kidd., 29 Ala. 
221, this court said : " The doctrine is now well settled, at least 
in the United States, that the appointment of an agent by a 
corporation need not Ije evidenced by the written vote of its 
functionaries ; but that it may be inferred from the adoption 
of the acts of the agent by such functionaries, or b}' the cor- 
poration." And in Angell and Ames on Corp. § 84, it is said : 
" The vote of appointment may, as an appointment of an agent 
by a natural person, be implied from the permission or accept- 
ance of his services, from the recognition or confirmation of 
his acts, or, in general, from his being held out as an authorized 
agent of the corporation. ... If a person be employed 
for a corporation, by one who professes to act for it, and renders 
service under the agreement with the knowledge of the cor- 
porate officers, without notice from them of the employer's 
want of authority, payment for the services can not be evaded 
by the corporation." The rule is different, however, if the 
contract has not been executed by either party. The sauic 
author, and in the same section, says: " The same presumptions 
are applicable to corporations, as to natural persons." 

Hill, the plaintiff, was depot-agent of the defendant railroad 
company at Attala. Ball was superintendent of the railroad, 
having his office at Chattanooga, its north-eastern terminus. 
Wadsworth was assistant superintendent, having his office at 
Birmingham, which is near the center of the line. Attala is 
between Chattanooga and Birmingham. Hill received notice 
from Ball, superintendent, notifying him to report to Wads- 
worth. He did so, when Wadsworth informed him he wished 
to transfer him to the office at Eutaw, a station lower down the 
road, and to place him in charge of the depot there. Accom- 
panying him to the latter station, he placed him in charge, 
where he remained, performing the duties of station agent, for 
more than four years. The testimony tends to show, and the 
jury must have so found, that while proceeding to Eutaw, and 
after reaching that place, Wadsworth, in answer to a question 
by Hill as to what his salary or wages would be, informed him 
it would be seventy-tive dollars per month. It is not shown 
that Ball, the superintendent, ever fixed the salary, or said any- 
thing on the subject. The corporation paid Hill monthly at 
Vol. lxxvi. 



1884. J OF ALABAMA. 307 

[Ala. Great Southern Railroad Co, v. Hill.] 

the rate of fifty dollars per month, which he received, and gave 
therefor customary receipts in full, on the pay-rolls. There is 
testimony that he sometimes protested, and he frequently 
claimed that an additional sum of twenty-five dollars was due 
him for each month ; but the corporation never conceded it to 
him. We may as well say here, as elsewhere, that the present 
record raises no legal question on the effect of these receipts 
and acquittances, nor on the effect of Hill's continuance in the 
oflice, after he knew the corporation denied his right to the 
extra twenty-five dollars, monthly compensation. It was a 
mooted question of fact, whether Wadsworth promised Hill 
seventy-five dollars per month for the service he was to render 
at Eutaw. I'ulings of the court bearing on this question, and 
on the connected question, whether, if he made such promise, 
the corporation was bound thereby, are the only legal questions 
this record presents. 

It is not controverted, that Wadsworth alone made the ar- 
rangement and agreement with Hill, by which the latter sur- 
rendered the service at Attala, and took upon himself the duties 
of depot-agent at Eutaw. Neither is it, nor could it, under 
the testimony, be controverted, that in this service, Wadsworth 
was acting under the authority and command of Ball, the su- 
perintendent. There is no testimony tending to show, nor is 
it pretended, that the railroad corporation had authority over 
Hill, to transfer him from one station to another, without his 
consent. We must, then, presume that he left one station, and 
took charge of another, in virtue of a contract made. That 
contract may have been express in all its terms, or it may have 
been left to implication in part. If Hill took upon himself the 
duties of the new service, at the request of the corporation, 
and performed the service, that constituted a contract, on which 
he could recover a quantum meruit^ even thougli nothing was 
said about compensation. And it is not denied that Wadsworth, 
under Ball's instructions, made this contract, and had authority 
to do so. Thus far, the corporation, receiving the benefit of 
Hill's services without objection, must be held to have ratified 
Wadsworth's act in employing him. 

The precise question sought to be raised is, not that Wads- 
worth had no authority to employ Hill, but that he had no au- 
thority to agree on the amount of his wages. We can not 
agree to this. Authority to do an act, includes the power to do 
every thing necessary and usual to its accomplishment. Power 
to employ an agent or servant, if there be no restrictive words, 
includes the authority to make a complete express contract, 
definite as to the amount of wages, as upon all other terms. 
Skinner v. Gunn^ 9 Por. 305 ; Gaines v. McKinley^ 1 Ala. 



308 SUPREME COURT [Dec. Term, 

[Townsend v. Brooks.] 

446; Cocke v. Campbell, 13 Ala. 286; Story on Agency, §§ 58' 
85, 97, 102. 

Under the foregoing principles, there is no error in this 
record. What Wadsworth said and promised while negotiating 
with Hill, and up to the completion of the appointment, was 
clearly legal, as furnishing evidence of the terms of the con- 
tract declared on. And the charge of the court, given and 
excepted to, lays down t^ie law precisely as we have declared it 
above. 

The tenth charge asked, in view of the principles of law de- 
clared above, was inapplicable and misleading, and was rightly 
refused on that account. — Callan v. McDaniel, 72 Ala. 96, 

Affirmed. 



Townsend v. Brooks. 

Statutory Trial of Right of PropeT'ty in Cotton. 

1. Form and sufficiency of verdict; assessing value of property in con- 
troversy. — On the trial of a statutory claim suit, the issue being found 
against the claimant, tiie statute requires that the jury must, " as far as 
practicable, assess the value of each article separately at the time of 
trial" (Code, § 3343) ; and where the property consists of several bales 
of lint-cotton, and several thousand pounds of seed-cotton, the value of 
each kind should be assessed separately, though it is not necessary that 
each bale should be assessed separately, when no difference in the qual- 
ity of the cotton is shown. 

2. Form of judgment. — The judgment, following the verdict, should 
specify the separate value of the several articles; and where the claim 
was interposed to property on which an attachment had been levied, the 
judgment should declare the property " subject to tlie levy of the attach- 
ment, and that it be condemned to the satisfaction of the judgment, if 
one is obtained ; " but, when the levy is made under an execution, it is 
sufhcient if the judgment declares that the property be "condemned to 
the satisfaction of the {)laintiff 's debt." 

3. Statutory lien of agricultural superintendent, as against purchaser 
of crops. — The statutory lien of an agricultural superintendent, on the 
crops raised under his supervision during the year (Code, § 3482), must 
prevail against any purchaser with notice, actual or constructive; and if 
the purchaser has knowledge of the relation or employment of the super- 
intendent, and of the fact that the crops were raised under his super- 
vision during the year, he is chargeable with constructive notice of the 
lien. 

4. Sale in payment of debt; delivery, and agreed price. — A delivery 
of personal property, in absolute pavinent of a debt, may pass the title, 
anci consummate the contract, if so intended by the parties, although no 
specific price was agreed on ; the law assuming that the price was to be 
fair and reasonable, or that it was to be the amount of the specific debt. 

Vol. lxxvi. 



1884] OF ALABAMA. 309 

[Townsend v. Brooks.] 

Ai'rp:AL from the Circuit Court of Liuiestone. 

Tried before the lion. II. C. Steakk. 

The record in this case shows that, on the 17th February, 
1883, Edward H. Brooks, the appellee, sued out an jittachnient 
against the crop of cotton raised under his supervision, during 
the year 1882, as superintendent of two plantations in said 
county, belonging to John B. McClellan ; that this attachment 
was levied by the sheriff, on the same day, on seventeen bales 
of cotton ami about 4,800 pounds of cotton in the seed ; that 
a claim to this property was thereupon interposed by B. M. 
Townsentl, claiming under a purchase from said McClellan, and 
bond given for a trial of the right of property; and that an 
issue was thereupon made up between the parties, under the 
direction of the court, and submitted to a jury, who returned 
a verdict in these words : " We, the jury, find the issues in 
favor of the plaintiff, and assess the value of the property at- 
tached at the sum of eight hundred dollars;" whereupon the 
court rendered judgment, "that the said property, to-wit, the 
cotton levied on under the attachment, be, and the same is 
hereby, condemned to the satisfaction of plaintiff's debt." The 
plaintiff claimed $500 as his wages under the contract with 
McClellan, but the record does not show that he had recovered 
a judgment in the attachment suit. 

On the trial of the claim suit, a bill of exceptions was re- 
served by the claimant, which purports to set out all the evi- 
dence adduced. There was no dispute as to the plaintiff's 
contract of employment with McClellan, nor of the fact that 
the cotton in controversy was raised under his management 
and supervision, during the year 1882, on McClellan's planta- 
tion. Said McClellan, being introduced as a witness for the 
plaintiff, thus testified, on cross-examination by the claimant : 
"I sold my entire crop of cotton, produced upon said planta- 
tion in 1882, to Maj. 13. M. Townsend, in payment of a debt of 
$6,000, or $7,000, which I owed him. I turned the crop over 
to him in October or November, 1882, and notified plaintiff 
that I had done so." The witness further testified, on re-exam- 
ination by plaintiff : "I don't know whether you would call it 
a sale or not. I owed Townsend the debt. He had furnished 
the money with which to make the crop, and held a mortgage 
upon it. I found, in the fall of the year, that I could not 
gather my crop ; and I turned it over to said Townsend, in 
liquidation of the debt I owed him, and for which he held the 
mortgage. No price was agreed on at the time the crop was 
delivered to Townsend, and 1 do not now remember when he 
gave me credit for the cotton. Something was said about my 
owing Brooks, but I do not remember exactly what." A wit- 
ness tor the claimant, who, as his agent, took charge and control 



310 SUPREME COURT [Dec. Term, 

[Townsend v. Brooks.] 

of the crop on the plantation, in October, or November, 1882, 
under an order from McClellan, testified : "Plaintiff surren- 
dered everytliing to me, without objection, and said nothing 
about McGlellan owing him, nor about his having a lien on the 
crop for unpaid wages." 

The claimant asked the following charges to the jury : 1. 
"If the jury find, from the evidence, that plaintiff delivered 
the cotton on McClellan's place, including the cotton now in 
controversy, to the claimant or his agent, without disclosing 
the fact that he had or claimed a lien upon it, then they should 
find for the claimant." 2. "If the jury find, fron> tlie evi- 
dence, that the cotton had been delivered by said McClellan to 
Townsend, prior to the levy of the attachment, in satisfaction 
of a debt due from said McClellan to said Townsond, then 
their verdict should be for the claimant." The court refused 
each of these charges, and the claimant excepted to their 
refusal. 

The refusal of the charges asked, the insufficiency of the 
verdict and judgment, and other matters, are now assigned as 
error. 

W. R. Francis, for the appellant, cited Code, § 3343; 2 Brick. 
Digest, 171, § 129; 2 Ih. 481, § 102; Seamans v. White, 8 
Ala. 656; Shealy & Finn v. JEdwards, 73 Ala. 179; Tattle v. 
Walker, 69 Ala. 174. 

Jas. Benagii, contra, cited Hussey v. Peebles, 53 Ala. 435; 
Bosioell (& Woolley v. Carlisle, Jones <& Co., 55 Ala. 554; 
Hudson, Kennedy i& Co. v. Vaughan, 57 Ala. 612; Lehman, 
Durr (& Co. v. Warren ds Burch, 53 Ala. 538 ; Dyer v. Aher- 
crombie, 57 Ala. 497 ; Crosby v. Hutcheson, 53 Ala. 5 ; 1 Brick. 
Digest, 796-7, §§ 11, 13, 19, 50, 54. 

SOMERVILLE, J.— Upon a trial involving the right of 
property which is levied on by execution or attachment,, the 
statute provides that, if tlie jury subject the property to the 
payment of the execution or debt, "they must, as far as prac- 
ticable, assess the value, at the time of trial, of each article sepa- 
rately.^'' — Code, 1876, §3343. The statute is the same in refer- 
ence to actions of detinue, involving the recovery of property in 
specie. — Code, § 2944. These provisions are manifestly for the 
mutual benefit and protection of the parties litigant, in the 
event of a failure to produce any portion of the property which 
is condemned, or recovered in specie, as the case may be. The 
assessment of values must, as far as practicable, be sufficiently 
certain to enable the court to fix the liability of the party, who, 
being in possession of the property, makes default by failing or 
Vol. lxxvi. 



1884.] OF ALABAMA. 311 

[Townsend v. Brooks.] 

refusing to liave any part of it forthcoming in obedience to 
his legal dnty. 

We are of opinion that, under this rule, the verdict of the jury 
should have assessed separately the vahie of the ^m^cotton, 
shown to be seventeen bales in number, and of the s^6fi?-cotton, 
shown to have been about forty-eight hundred pounds in weight. 
The various bales of cotton need not have been separately 
valued at so much per bale, unless the quality was of dif- 
ferent classifications, and this is not shown to be the case by 
the evidence. — Ilaynes v. (Jriitc/tjield^ 7 Ala. 1S9; Backner v. 
Flagyin, 3 Monr. Rep. 5'J ; Bell v. Pharr, lb. 807. The judg- 
ment, following the verdict, is necessarily erroneous in the 
foregoing particular, and it must be reversed. 

It is proper to add, that the form of the judgment, more- 
over, as shown by the record, is not precisely cerrect. It ad- 
judges that the property levied on be "condemned to the 
satisfaction of the plaintiff's debt." If the levy had been 
under execution, where the amount of the debt was already 
reduced to judgment, no objection, perhaps, could be sustained 
to the judgment in its present form, so far at least as concerns 
this defect. It should properly have declared the property in 
controversy "subject to the levy of the attachment, and that it 
be condemned to the satisfaction of the judgment, if one is 
obtained." — Seamans v. White, 8 Ala. 656; Lang worthy v. 
Ooodall, McLester (& Co., at present term. 

The principles of law which are to govern this case upon 
another trial, if the evidence remains unchanged, are few and 
simple. 

If the plaintiff was a superintendent of defendant's planta- 
tion, having been employed by him for the current year, 1882, 
he would have a lien upon the crops grown or raised on such 
place during that particular year, in and about which he was 
employed, to the extent of his hire or wages due for services 
rendered during the current year in the capacity of an agri- 
cultural superintendent. — Code, § 3482. And this lien, which 
is given by statute, will prevail against any purchaser of such 
crops, unless it be a purchaser for value without notice of such 
lien. — Scaife v. Stovall, 67 Ala. 237. 

Actual knowledge of the lien is unnecessary to charge such 
purchaser with notice. It is sufficient if he have knowledge 
of facts calculated to put him upon inquiry. And a knowledge 
by the purchaser of the relation between the landlord and 
superintendent — as employer and employee for the current 
year — and of the further fact that the cotton purchased was 
raised or grown upon the particular premises where the plain- 
tiff was employed as such superintendent — a knowledge, we 
repeat, of these two facts, would be sufficient to charge the 



312 SUPREME COURT [Dec. Term, 

[Sharp V. Sharp.] 

purchaser with constructive notice of tlie existence of plain- 
tiff's Hen, as well as the extent of it. — Lomax v. LeGrand & 
Co., 60 Ala. 537. 

The evidence tends to show that the cotton was delivered to the 
claimant, Townsend, in absolute payment of a debt due to him 
by the defendant, McClellan. If the intention of the parties 
was, that this act of delivery should pass the title, the sale 
might be complete, although no absolute price was agreed on 
between them. The law would assume, that the price was to 
be a fair and reasonable one ; or, if the delivery was in pay- 
ment of a specified debt, the amount of this debt would consti- 
tute the price. — Shealy <& Finn v. Edwards, 73 Ala. 175. 
This sale, however, as we have before indicated, would avail 
nothing as against the plaintiff, if Townsend bought with 
notice, either actual or constructive, of the plaintiff's lien, as 
given hira by the statute. 

We need not criticize the charges of the court, in the light 
of these principles. The judgment must be reversed, for the 
error first suggested, which is accordingly done ; and the cause 
is remanded. 



Sharp V. Sharp. 

Bill in Equity hy Ward, against Personal Representatives and 
Heirs of Deceased Surety on Guardian'' s Official Bond. 

1. Decedent's estate; removal of administration into equity, and sale of 
lands. — The Chancery Court, when it takes jurisdiction of the adminis- 
tration of a decedent's estate, takes the estate in its condition at that time, 
and is governed by the laws regulating the administration of estates in 
the Probate Court; and following its own practice, it will decree a sale 
of lands when necessary, and when, in similar cases, the Probate Court 
would have had jurisdiction to order a sale. 

2. Sale of decedent' s lands for payment of debts. — The Probate Court 
has jurisdiction to order a sale of an intestate's lands in two cases only — 
(1st) for the payment of debts, and (2d) for distribution ; and a sale for 
the payment of debts can only be ordered on averment and proof that the 
personal property is insufiicient for that purpose. 

3. Same; averments of petition {or bill) as to insufficiency of personal 
property. — An averment in the petition asking a sale (or a bill in e<]uity 
lor the same purpose), that the petitioner " is not informed as to whether 
the property of which said S. died possessed will be sufficient to pay her 
said claim, but believes that, after the expenses of administration have 
been deducted, it will not be sufficient, and that it will be necessary to 
sell said lands," is not equivalent to an averment that the personal prop- 
erty is insufficient (Code, § 2447), and does not authorize an order to sell 
the lands for that purpose. 

4. Payment of debts ; bill by creditor. — A decedent's entire estate, over 
Vol. I. XX VI. 



1884.] OF ALABAMA. 313 

[Sharp V. Sharp. J 

and above the exemptions allowed by law, is charged with the payment 
of his debts; and cre<litor8 who have not acquired a lien in his life-time, 
or whose debts are not made preferred claims, stand on an ecjuality, and 
must be pnid ;>ari ;>as.sM, if their claims are presented within Mie time 
allowed by law (Code, H 2429-30) ; hence, one creditor can not maintain 
a bill in his own name, for the payment of his debt alone, nor otherwise 
acquire preference over other creditors of equal degree. 

5. Subjecting lands descended or devised to payment of debts, under bill 
by creditor. — When a guardian has died insolvent, not having made a set- 
tlement of his guardianship, a bill in equity by the ward, seeking to es- 
tablish and enforce her chiim, against the estate of a deceased surety on 
his oflicial bond, doea not fall within the principle declared in Scott v. 
Ware (04 Ala. 174), as to the averment and i)roof neces.sary to sustain a 
bill by a creditor seeking to subject lands descended or devised to the |)ay- 
ment of his debt; but, under such a bill, the complainant can not 
have a decree for the sale of lands, until her debt has been ascertained 
and established by a decree conclusive on the heirs ; nor is she entitled 
to exclusive payment out of the legal assets, over preferred claims, or 
creditors standing on an equality with her. 

6. Fraudulent conveyance; when creditor without lien may impeach. 
A creditor without a lien, or by simple contract only, can not maintain a 
bill in equity to reach and subject property fraudulently conveyed by his 
deceased debtor, without averment and proof of a aeficiency of legal 
assets. 

7. Lands purchased by husband, for and in name of wfe ; liability to 
his debts. — W here lands are purchased by the husband entirely on credit, 
and a conveyance taken in the name of the wife, with a mortgage on the 
lands to secure the payment of the agreed price ; and the purchase-money 
is afterwards paid, partly with the proceeds of crops raised on the lands 
by tenants, and partly by the wife after the death of the husband ; the 
lands can not be subjected by creditors to the payment of his debts. 

Appeal from the Chancery Court of Montgomery. 

Heard l)efore tlie lion. Jno. A. Foster. 

The bill in this case was filed on the 10th September, 18^1, by 
Lueiiida J. Shar|), who was a daughter of William M. Sharp, de- 
ceased, against the personal representative of her deceased guar- 
dian, Josephus P. Sharp, and against the personal representa- 
tive, widow and children of Samuel M. Sharp, deceased, who 
was a surety on the official bond of said guardian. Its object and 
prayer was — 1st, to remove the guardianship from the Prol)ate 
Court, and compel a settlement of the accounts in the'Chancery 
Court ; 2d, to condemn the money and property in the hands 
of the administrator of said Samuel M. Sharp, so far as neces- 
sary, to the payment and satisfaction of the amount which, on 
the settlement of the guardian's accounts, might be found due to 
the complainant ; 3d, if any balance should remain unpaid, to 
sell for its satisfaction a tract of land containing eighty acres, 
which was claimed as a homestead by the widow and children 
of said Samuel M. Sharp ; and, 4th, if any balance still remained 
unpaid, to subject to its satisfaction, by a sale under the decree 
of the court, a tract of land which said Samuel M. bought, in 
the name of his wife, from W. P. Vanderveer, and which said 



314 SUPREME COURT [Dec. Term, 

[Sharp V. Sharp.] 

Vanderveer conveyed to Mrs. Sharp after the death of her 
husband. 

The complainant's father died in October, 1857, and letters of 
administration on his estate were duly granted to said Josephus 
P. Sharp ; and on the settlement of the accounts of said admin- 
istrator, two decrees were rendered against him in favor of the 
complainant — one for $S0, rendered on 2d October, 1880, on the 
settlement of his first administration ; and the other for $309.40, 
rendered on the lOtli March, 1870, on final settlement of his 
accounts under a second appointment. On the 14th June, 
1870, said Josephus P. Sharp was appointed, by the Probate 
Court of said county, guardian of tlie complainant ; and he gave 
bond for the faithful discharge of his duties, with Samuel M. 
and Wade H. Sharp as his sureties. Said Josephus P. died, as 
the bill alleged, "in the early part of the year 1871, insolvent 
and intestate," never having settled his guardianship, nor ac- 
counted to the complainant in any manner for the money due 
on said two decrees in her favor. Letters of administration on 
his estate were granted on the 29th March, 1871, to Wade H. 
Sharp and W. J. Wilson ; the latter of whom was still acting 
as administrator when the bill was filed, and was made a de- 
fendant as such representative ; while it was alleged that said 
Wade H. Sharp, who was also a surety on the guardian's official 
bond, "died since the 29th March, 1871, intestate and insolvent, 
and no administration has ever been granted on his estate." 
Samuel M. Sharp, the other surety on the guardian's bond, 
died in October, 1879, intestate, leaving a widow and two in- 
fant (5t)ildren ; and letters of administration on his estate were 
granted on the 1st September, 1881, to Frank A. Hall, who was 
made a defendant to the bill in his representative capacity. 

The bill alleged that said Samuel M. Sharp owned, at the 
time of his death, personal property of value less than $1,000, 
and a tract of land containing eighty acres, on which he did not 
reside ; that the widow collected and retained the personal 
property, 'claiming it as her own, and none of it had gone into 
the possession of the administrator. As to the lands purchased 
from Vanderveer, and conveyed to Mrs. Martha Jane Sharp, 
the wife of said Samuel M., the bill averred that the purchase 
was made by said Samuel M., in the name of his wife, with the 
intent to defraud the complainant, and to prevent her from 
subjecting the lands to the payment of her demand ; and that 
the purchase-money was paid by him, or was paid out of the 
proceeds of the crops raised on the lands. The bill contained, 
also, an allegation in these words : " Your oratrix is not in- 
formed as to whether the property which the said Samuel M. 
Sharp died possessed of will be sufficient to pay her said claim, 
but believes that said property, by itself, after the expenses of 
Vol. lxxvi. 



1884.] OF ALABAMA. 315 

[Sharp V. Sharp.] 

administration have been deducted, will not be sutficient to sat- 
isfy her claim, and that it will be necessary that the property 
now claimed by the said Martha Jane, and by the said Mary 
Ann Sharp, shall be sold, and subjected to the payment of lier 
said claim." 

Wilson, the administrator of Josephus P. Sharp, filed an 
answer, in which he pleaded the statute of non-claim as a de- 
fense against the complainant's demand. Ilall, the adnn'iiis- 
trator of Samuel M. Sharp, filed a formal answer, requiring 
proof of the allegations of the bill, and alleging that he did 
not know whether his intestate's estate was solvent or insolvent. 
An answer was filed by Mrs. Martha Jane Sharp, in which she 
claimed a homestead in said eighty acres of land of which her 
husband died seized and possessed, and also claimed the per- 
sonal property as exempt to her and her children ; and she 
claimed the lands conveyed to her by Vanderveer, alleging that 
the purchase was made, on credit, for her and in her name, and 
that the purchase-jnoney was paid in cotton raised on the lands. 
She pleaded the statute of non-claiu), insisting that the complain- 
ant's demand was discharged, as against her lands and her hus- 
band's estate, by the failure to make due presentation to the 
administrator of losephus P. Sharp; and she demurred to the 
bill, because of the failure to aver such presentation, and be- 
cause of the failure to aver that the estate of Samuel M. Sharp 
was insolvent, and because it was multifarious. Mary Ann 
Sharp adopted the answer, demurrer and plea of said Martha 
Jane Sharp. 

The chancelhtr overruled the demurrer and the plea, and, on 
final hearing on pleadings and proof, rendered a decree for the 
complainant, granting relief as prayed in the bill. 

The ap})eal is sued out by Mrs. Martha Jane Sharp, who here 
assigns as error the overruling of her demurrer to the bill, and 
the final decree ; and the other defendants below join in her 
assignments of error. 

Troy & Tompkins, with whom were Shaver & Hijtcheson, 
and H. H. Hall, for appellants. — (1.) The claim asserted by 
the bill is not only barred, as against the estate of the deceased 
guardian, by the failure to present it to his personal representa- 
tive within the time allowed by law, but it is thereby extin- 
fuished. — Code, § 2568; Fretwell v. McLemore^ 52 Ala. 139. 
f it is still a subsisting demand against the estate of the surety, 
then, on being paid by the surety, or out of his estate, it may 
be again presented as a valid claim against the estate of the 
principal, and the purpose of the statute be thereby thwarted. 
The cases decided under the old statute, which only barred the 
remedy, have no application. The creditor has lost his demand 



316 SUPREME COURT [Dec. Term, 

[Sharp V. Sharp.] 

by his owti laches. — ^Brandt on Suretysliip, § 384 ; Gillesine v. 
Darwhi, 6 Heisk. 21 ; 2 La. Ann. 427. (2.) The bill is multi- 
farious. It seeks to remove the guardianship from the Probate 
Court, and to compel a statement and settlement of the guar- 
dian's accounts by his administrator, against whom no decree 
can be rendered; to compel payment of the amount found due, 
out of the assets belonging to the estate of the surety, and, if 
necessary, to sell his lands for that purpose ; and to set aside al- 
leged fraudulent conveyances. That such a bill is multifarious, 
see Felde?' v. Davis^ 17 Ala. 418 ; State Banh v. Ellis, 30 Ala. 
478 ; Quarles v. Grigshy, 31 Ala. 172 ; Johnson v. Parkinso7i, 
62 Ala. 456 ; Story's Eq. PI. §§ 280-81. (3.) The bill is with- 
out equity, in seeking to enforce payment of a debt out of 
lands descended, w^ien it is not averred that the estate is in- 
solvent, or that the complainant has exhausted his legal remedies. 
/Scott V. Ware, 64 Ala. 174. It is filed, too, against an admin- 
istrator, nine days after the grant of letters to him ; and a 
decree is rendered against him before the expiration of eighteen 
months. — Code, § 2614. (4.) The lands sold and conveyed by 
Yanderveer belong to the statutory estate of Mrs. Sharp, and 
can not be subjected to the payment of her husband's debts. 
Co^des V. Marks, 53 Ala. 499 ; Prout v. Boge, 57 Ala. 28 ; 
Wimhish v. B. <& L. Association, 69 Ala. 575. 

Watts & Sons, contra. — (1.) The liability of the obligors on 
the guardian's bond is joint and several, and the surety is not 
discharged by the failure to present the demand as a claim 
against the estate of the deceased principal. — McBroom v. 
Governor, 6 Porter, 33; Cawthorn v. Weisinger, 6 Ala. 716; 
Inge v. Br. Bank, 8 Porter, 108 ; Evans v. Evans, 16 Ala, 
465 ; Minter <& Gayle v. Br. Bank, 23 Ala. 762 ; Chapin v. 
Livermore, 13 Gray, 561; Ashhy v. Johnston, 23 Ark. 163; 
Johnson v. Bank, 4 Sm. & Mar. 165 ; Marshall v. Hudson, 
9 Yerger, 63 ; Roberts v. Calvin, 3 Grat. 358 ; Kerr v. Bran- 
don, 2 How. Miss. 910; People v. Jansen, 7 Johns. 331; 
Humphreys v. Crane, 5 Cal. 173. (2.) The bill is not multifa- 
rious. — Kennedy v. Kennedy, 2 Ala. 573 ; Allen v. M. c& W. 
P. Railroad Co., 11 Ala. 437. (3.) The right of a" simple 
contract creditor to file a bill to set aside a fraudulent convey- 
ance, and subject the property to the payment of his antecedent 
debt, is well established. — Code, § 3886 ; Zelnickerv. Brigham 
i& Co., 74 Ala. 598 ; Evans v. Welsh, 63 Ala. 250. (4.) The 
complainant being a creditor of Samuel M. Sharp at the time 
he bought the lands from Yanderveer, they are liable for her 
debt, unless it was clearly shown (what is not pretended) that 
the money of Mrs. Sharp was used in paying for them. —Pat- 
terson V. Campbell, 9 Ala. 933 ; Rives v. McGintry, 10 Ala. 

Vol. lxxvi. 



1884.] OF ALABAMA. 317 

[Sharp V. Sharp.] 

138; Simerson v. BanTc, 12 Ala. 205; Pickstt v. Pipkin^ 64 
Ala. 520; Sims v. Gaines^ 64 Ala. 392; Harrell v. Mitchell^ 
61 Ala. 278 ; Huhhard v. Allen, 59 Ala. 283 ; Horn v. Wyatt, 
60 Ala. 297. This principle is recognized hy other courts, in 
the following cases : Scitz v. Mitchell, 4 Otto, 580 ; Gamhei' v. 
Gamher, 18 Penn. St. 363 ; Black v. Nease, 37 Penn. St. 433 ; 
Connors v. Con7iors, 4 Wise. 131 : Elliott v. Bentley, 17 Wise. 
591 ; Duncan v. Roselle, 15 Iowa, 501 ; Cramer v. Baiford, 
17 N. J. Eq. 367 ; Boyd v. Montague, 73 N. Y. 498 ; Keeney 
V. Good, 21 Penn. St. 349; Gerry v. Gerry, 11 Gray, 381; 
Bayt V. White, 46 N. H. 45. 

CLOPTON, J. — When a court of equity takes jurisdiction 
of the administration of an estate of a decedent, the court 
takes the estate in its condition at the time of taking jurisdic- 
tion, and is governed by the laws regulating and controlling 
the sales of propert}', payment of debts, and settlement of ad- 
ministrations, which are applicable to the administration of 
estates in the Probate Court. Following its own practice, the 
court will decree a sale of lands, when necessary, and when, in 
similar cases, a court of probate would have had jurisdiction to 
order a sale. — Bragg v. Beers, 71 Ala. 151 ; Hall v. Wilson, 
14 Ala. 295; Wilson v. Crook, 17 Ala. 59. The Probate 
Court has jurisdiction to order a sale of the lands of an intes- 
tate, in only two cases — for the payment of debts, and for dis- 
tribution ; and an order of sale for the payment of debts can 
not be made, unless there is an averment and proof that the 
personal estate is insufficient therefor. — Code, §§-2447, 2448, 
2449. These statutory provisions govern a court of equity, 
when it has taken jurisdiction of an estate, and it is being ad- 
ministered in that court. 

The averment of the bill is, that complainant "is not in- 
formed as to whether the property, which the said Samuel M. 
Sharp died possessed of, will besufKcient to pay her said claim," ^ 
but believes it is insufficient. This is not an averment, nor the 
equivalent of an averment, that the personal estate is insuffi- 
cient to pay the debts. The bill was filed ten days after the 
appointment of the administrator of Samuel M. Sharp, and in 
less than eighteen months thereafter a decree was rendered, by 
which the administrator was ordered to pay to the register, for 
the use of the complainant, any moneys of the estate he may 
have in his possession, not exceeding the amount ascertained to 
be due complainant, after deducting the costs and the expenses 
of the administration ; provided the debt of complainant is the 
only debt presented to him within eighteen months after his 
appointment; and for any balance due to complainant, the reg- 



318 SUPREME COURT [Dec. Term, 

[Sharp V. Sharp.] 

ister was ordered to sell the lands admitted to belong to Samuel 
M. Sharp. 

Tiie decree was made before the expiration of the time in 
which creditors are required to present their claims, and of the 
time allowed an administrator to ascertain the condition of the 
estate, or before he can be compelled to make settlement, and 
without an ascertainment of the debts of the estate, or of its 
condition, or what amount, if anything, is due to complainant. 
The validity of the claim of complainant is dependent on a 
settlement of the guardianship of Josephus P. Sharp, as her 
guardian. If, on fhe reference ordered, the register should 
find an amount due, his report remains subject to exceptions, 
and is not final until confirmed. A decree of sale was made, 
without a judicial finding of either of the facts preceding and 
necessary to a sale of lands for the payment of debts — the ex- 
istence of debts^ and the insufficiency of the personal estate for 
their payment. 

By our statutes, all the estate of a decedent, whether real or 
personal, other than the exemptions provided by the law, is 
charged with the payment of his debts. The only restriction 
is, that resort must be first had to the personal estate. Cred- 
itors, not having a lien created in the lifetime of the deceased, 
or whose claims are not founded on the considerations for 
which a preference is given by statute, ^i^w A pari passu. One 
can not, by any proceedings, acquire a preference; his right 
being to participate in the assets, real and personal, equally 
with the other creditors. The corollary from these statutory 
provisions is, that the rule in the English Court of Chancery 
— that a single creditor of an estate can bring a bill for the 
payment of his own debt onl}', and for this purpose have a 
discovery of assets — -does not prevail in this State. The bill, 
in such case, must be a creditors' bill, on which the assets may 
be marshalled and applied for the benefit of all, a due admin- 
istration of the estate had, and a final settlement made, — 
thus preventing a multiplicity of suits, and unnecessary and 
expensive litigation. — Scott v. Ware, 64 Ala. 174. The bill is 
brought by a single creditor for the payment of her debt only, 
without allegation that there are no other claims, entitled to 
share equally, and no claims for funeral expenses, expenses of 
last sickness, or other considerations, for the payment of which 
the statute provides a preference; and a decree is made for the 
payment of complainant's debt, without regard to the existence 
of any such preferred claims, except the costs and expenses of 
administration. 

The bill is filed for the purpose of subjecting to the com- 
plainant's demand, not only the personal estate, but also the 
land descended to tlie heirs. It may be conceded that the case 

Vol. lxxvi. 



1884.] OF ALABAMA. 319 

[Sharp V. Sharp.] 

does not fall within the principle held in Scott v. Ware, supra, 
where it is said : " Before a creditor can obtain the assistance 
of a court of equity, to subject lands descended, or lands de- 
vised, to tne satisfaction of his deinaiid, he must have estab- 
lished his debt by a judgment at law, and exhausted his legal 
remedies; and there must be averment and proof of a want of 
personal assets, and of the insolvency of the personal repre- 
sentative, and the sureties on his bond, if any he has given." 
Tier demand being founded on the liability of a surety on the 
official bond of her guardian, who died insolvent, the com- 
plainant had a right to come into a court of equity to establish 
it; and the jurisdiction having attached, the court will grant 
all the relief to which she is entitled, and settle the entire liti- 
gation between the parties, notwithstanding she may have a 
remedy at law as to a part. But this does not entitle her to an 
order for the sale of the land, until her debt has been estab- 
lished by a decree of the court, conclusive on tiie heirs; nor 
does it entitle her to exclusive payment out of the legal assets, 
if there are preferred claims, or other creditors having a right 
to an equal participation. 

By the bill, the complainant seeks, also, to subject lands, 
alleged to have been fraudulently conveyed to his wife, by the 
procurement of the deceased debtor. Before a simple-contract 
creditor can come into a court of equity, to subject property 
fraudulently conveyed by a debtor, who has since deceased, 
there must be averment and proof of a deficiency of legal, 
assets to satisfy his demand. Without such averment, the bill 
is without equity. Such a case belongs to that "class of cases 
dependent upon the jurisdiction of the court over the adminis- 
tration ajid marshalling of the estate of deceased persons, in 
which the court was accustomed to intervene for the relief of 
creditors, though judgments at law had not been obtained, if a 
necessity existed ; and the necessity existed, when there was a 
deficiency of other assets for the payment of debts." — State 
Bank v. Ellis, 30 Ala. 478 ; Lehjnan v. Meyer, 67 Ala. 390 ; 
Cawthom V. Jones, 73 Ala. 82. There is an absence of both 
averment and proof of a deficiency of legal assets, real and 
personal, for the payment of the debt. 

The lands, claimed to have been fraudulently conveyed, were 
purchased from Vanderveer by the deceased debtor, for and in 
the name of his wife, entirely on a credit. A conveyance was 
made to the wife, and a mortgage was taken on the lands to 
secure the payment of the consideration, wiiich was payable, in 
several annual installments, in cotton. Our attention has been 
specially called to the case of Keeney v. Good, 21 Penn. St. 
349. That case involved a question of fraud in fact, and the 
court held the arrangement between the husband and wife "too 



320 SUPEEME COURT [Dec. Term, 

[Sharp V. Sharp.] 

unsubstantial, and too easily shammed, to be at all satisfactory." 
The real estate, on which there was a distillery, was purchased 
by the wife on a credit, except a small amount, and by agree- 
ment the wife appointed the husband her agent to manage the 
farm and the distillery, for which she was to pay him twenty 
dollars per month. There was no evidence that the purchase- 
money was paid wjth funds of the wife. The court held that, 
"no agreement of the husband and wife about the property of 
either, whether it be made in writing or by parol, can avail 
against creditors, without proof which will render the fact in- 
dubitable, that it was hers independent of all agreement be- 
tween themselves." We are not prepared to disagree to this 
legal proposition, if it were applicable to the case before us. 

We do not understand that any question of actual fraud is 
really involved, other than it is insisted the lands were paid for 
with the earnings of the husband and wife. It clearly appears 
that the payments for the land were made with cotton, grown 
on the premises by tenants principally, and some of the pay- 
ments were made by Mrs. Sharp after the death of her husband. 
No funds or earnings of his assisted in paying for the lands. 
The question raised on these facts is, are the lands, by law, the 
property of the wife, or of the husband ? This is not an open 
question. At common law, the wife, during coverture, could 
make a valid purchase, and accept a valid conveyance of real 
estate. If she purchased an estate in fee, the conveyance was 
good, unless it was avoided by the husband in some mode de- 
claring his dissent, or disagreed to by the wife after the hus- 
band's death. If the estate was purchased with the concur- 
rence of the husband, the purchase and conveyance remained 
valid during coverture, and could be disaffirmed only by the 
wife, and after her coverture. The husband, having once 
given, his consent, could not revoke it, and the wife was inca- 
pable to disaffirm during coverture. The husband consented 
to the purchase by Mrs. Sharp. The conveyance to her, and 
the mortgage to secure the consideration agreed to be paid, be- 
ing contemporaneously executed, created in her an estate on 
condition, which became absolute on the payment of the full 
consideration. These principles are clearly and distinctly held 
in Marks v. Cowles, 53 Ala. 449. And in Front v. Iloge^ 57 
Ala. 28, it is said : "The original agreement for the purchase 
of the premises provided for a conveyance to the wife, on the 
payment in full by her of tiie purchase-money. This agree- 
ment certainly created in the wife an equity. This equity of 
the wife was her statutory separate estate, incapable of aliena- 
tion, except in the mode prescribed by the statute." — Wirnbuh 
V. Montg. M. B. cfe Z. Asso., 69 Ala. 575. 

By our statutes, " all property of the wife, held by her pre- 

VOL. LXXVI. 



1884.J OF ALABAMA. , 321 

[Mobile Mutual Insurance Co. v. Cleveland.] 

vious to the marriage, or which she may become entitled to 
after the marriage in any manner, is her separate estate." " In 
any manner'^'' includes any purchase and conveyance valid in 
law, and sufficient to vest in her an estate. The creditors of 
the husband suffer no loss or damage. The property in the 
hands of the wife's vendor was not subject to their demands. 
The labor and attention of the husband, bestowed in its man- 
agement, was the discharge of a duty, imposed by the statute 
upon him as trustee; and the rents, income and profits were 
not subject to the debt of complainant. The lands purchased 
from Vanderveer became the property of Mrs. Sharp, and are 
not subject to her husband's debts. 
Reversed and remanded. 



Mobile Mutual Insurance Co. v. Cleve- 
land. 

Application for Mandamus to Circuit Clerk^ on refusal to 
accept Attachment Bond. 

1. Waiver of defects in appeal or transcript. — After a joinder in error, 
and a submission of the cause, without objection to the appeal or the 
transcript, this court will not consider any question raised in the briefs 
of counsel, as to the regularity of the appeal, or of the certified tran- 
script. 

2. When mandamus lies to clerk, in matter of approving attachment 
bond. — In approving an attachment bond, the clerk to whom it is ten- 
dered acts in a quasi judicial capacity ; and when he refuses to approve 
it, either because he considers the sureties insufficient, or for no assigned 
reason, his refusal will not be controlled or reviewed by mandamus; but, 
when he refuses to act on the bond tendered, or bases his refusal to ac- 
cept it on a specified reason which is insufficient in law, mandamus will 
lie, not to compel his approval, but to require him to pass upon the suffi- 
ciency of the bond without regard to the supposed defect. 

3. Sureties on attachment bond; residence in county not required. — There 
is no statutory provision which requires that the sureties on an attach- 
ment bond shall be residents of the county in which the bond is 
taken ; and the clerk has no authorty to reject a bond, because the sure- 
ties are not residents of the county. 

Appeal from order and judgment rendered by Hon. Wm. E. 
Clarke, presiding judge of the first judicial circuit, sustaining 
a demurrer to a petition filed by the appellant, asking for a 
mandamus to C. B. Cleveland, as clerk of the Circuit Court of 
Marengo county, requiring him to approve an attachment bond, 
which had been tendered by the appellant for his approval, in 

21 



322 SUPKEME COURT [Dec. Term, 

[Mobile Mutual Insurance Co. v. Cleveland.] 

a case pending in said court, wherein said appellant and peti- 
tioner was plaintiff, and Askew Brothers were defendants. 

On the filing of the petition, an order was made by Judge 
Clarke, dated "at chambers, St. Stephens, Washington county, 
April 7th, 1884," requiring the said Cleveland to appear before 
him, " at the court-house in Mobile, on Monday, May 12th, 
1884, at 12 o'clock, m.," and show cause why a writ of man- 
damus should not issue as prayed. The defendant appeared on 
the day specified, and demurred to the petition, on the ground 
that his action in refusing to approve the bond was not subject 
to review or control by the court ; and the demurrer was sus- 
tained by Judge Clarke, in an order which purports on its face 
to have been made " at the court-house in Mobile, May 12th, 
1884." The petitioner appealed from this order (Code, § 3923), 
and here assigns it as error ; and there was a joinder in error 
by the appellee. The material facts of the case are stated in 
the opinion of the court. 

Geo. G. Lyon, for appellant, made these points : (1.) There 
is no statutory provision which requires that the sureties on an 
attachment bond shall be residents of the county in which the 
bond is taken, and the clerk has no authority to impose such 
qualification. (2.) The clerk admits the sufficiency of the bond 
in all other respects, and places his refusal to accept it on the 
single ground that the sureties are not residents of the county ; 
and this action deprives the appellant of a clear legal right, for 
which mandamus is the appropriate remedy. — 36 Ala. 260 ; 
52 Ala. 98 ; 14 Ind. 93 ; Moses on Manda7nus. 42 ; 50 How. 
Pr. (N. Y.) 500. (3.) The transcript is properly certified by the 
defendant, as clerk of the Circuit Court of Marengo ; and any 
defects in it, or in the appeal, are waived by the joinder in 
erYor.— Thompson v. Lea^ 28 Ala. 453. 

R. E. Clarke, contra. — (1.) The record shows that the ap- 
plication was heard and decided in Mobile, while the transcript 
is certified by the circuit clerk of Marengo. The statute re- 
quires that it shall be made up and certified by the clerk of the 
court where the application is heard. — Code, § 3924. (2.) The 
order of the Circuit Court of Marengo, under which the bond 
is said to have been tendered, is not made an exhibit to the pe- 
tition, nor otherwise made a part of the record ; and this court 
can not, in its absence, know that any such order existed. (3.) 
If the case is properly presented here, the petitioner is not, on 
the facts stated, entitled to a mandamus. The approval of the 
bond is the exercise of a judicial function. — Stevenson v. 0^ liar a, 
27 Ala. 362 ; Matthews, Finley & Co. v. Sands d; Co., 29 Ala. 
136 ; £^ parte Harris, 52 Ala, 87 ; Vann cfe Waiigh v. 
Vol. lxxvi. 



1884.] OF ALABAMA. 323 

[Mobile Mutual Insurance Co. v. Cleveland.] 

Adama^ 71 Ala. 475. When mandamus is invoked in regard 
to tlie exercise of a discretionary power, the court can only order 
its exercise, but can not direct the manner or result of its exer- 
cise. — Hk parte Echols, 39 Ala. 698 ; Ex parte Ilai'ris^ 52 Ala. 
87; Jachv. Moore, ^^ Ala. 184; Comer v. BanJchead, 70 Ala. 
143 ; Ec parte Redd, 73 Ala. 548. (4.) Although the statute 
does not require that the sureties on a bond, when tendered for 
the approval of a clerk, shall be residents of his county, it is 
submitted that the defendant had the right to refuse to accept 
a bond, when all the sureties were and are non-residents of the 
county. The law charges him with the duty of taking good 
and sufficient sureties, and makes him responsible for injury re- 
sulting from taking insufficient sureties without proper investi- 
gation. It can not be expected that he shall go or send to a 
distant county, for the purpose of examining into the financial 
condition of parties proposed to him as sureties, the amount 
and nature of their taxable property, and the incumbrances on 
it ; and to require him to accept the ex-parte certificates, or 
affidavits even, of third persons selected by the applicant him- 
self, is to substitute their judgment for his, in a matter which 
involves no personal liability to them, as it does to him. The 
same reasons apply to the acceptance of such bonds, as to the 
approval of the bonds of county officers, which are subject to 
examination bv the grand jury. — Ex parte Buckley, 53 Ala. 
42-54. 

STONE, C. J. — There is, in this case, a joinder in error, and 
a submission of the cause on briefs of counsel, without any mo- 
tion to dismiss the appeal, or to reject the transcript. We will 
not consider any question of the regularity, either of the appeal, 
or of the certified record sent up for review. — 1 Brick. Dig. 
103, §§ 289, 290. 

An application was made in the Circuit Court for a man- 
dcumus, to compel the clerk of Marengo Circuit Court to 
approve an amended attachment bond, tendered in the case of 
appellant v. Askew Brothers. The clerk had refused to ap- 
prove the bond tendered. There was a demurrer to the peti- 
tion for inandarrms, which the circuit judge sustained. From 
that ruling the present appeal is prosecuted. 

It is contended for appellee, that, in refusing to approve the 
bond tendered, he acted in a quasi judicial capacity — did only 
what was confided to his judgment and discretion — and that 
his judgment and decision can neither be controlled nor re- 
viewed in the manner here proposed. If this record presented 
only the question of a bond tendered to the clerk for his ap- 
proval, and his refusal to approve it because he deemed the 
sureties insufficient, or for no assigned reason, the argument 



324 SUPKEME COURT [Dec. Term, 

[Mobile Mutual Insurance Co. v. Cleveland.] 

would be unanswerable. — Ex parte Harris^ 52 Ala. 87; Kr 
parte Thompson^ Ih. 98; Sims v. Jacoljson, 51 Ala. 186; Mc- 
Dujfie V. Cook, 65 Ala. 430; High on Extraordinary Leg. 
Rem. §§ 42, etseq.; Moses on Mandamus, 47. et seq. 

If, however, the clerk refuses to consider the sufficiency of a 
bond tendered for his approval, either for no reason, or for an 
assigned insufficient reason, mandamus will lie; not to compel 
him to approve the bond ; that is a matter for his own enhght- 
ened judgment: it will lie, to compel him to consider and pro- 
nounce on the sufficiency of the bond. This involves an 
inquiry into its form, whether it is in proper penalty and con- 
dition, and whether the sureties tendered are sufficient. This 
is a duty cast on him, which he alone can perform, and suitors 
who may be required to give such bonds, have the clear legal 
right to demand its exercise. — Gulick v. New, 14 Ind. 93 ; 
Moses on Mandamus, 61. 

The bond required in this case was in a suit pending in 
Marengo Circuit Court. The sureties offered were residents of 
Mobile county in this State. The petition for mandamus avers, 
that, after the clerk had considered the matter for several days, 
he "declined and refused to approve the said bond, solely be- 
cause the said bond is not signed by a solvent resident of Ma- 
rengo county, and [the clerk] admits that in all other respects 
he considers said bond sufficient." The case was tried in the 
court below on the written admission of the clerk, that the 
averments of the petition were true, with certain exceptions, 
not at all imj)airing or affecting the averment copied above. 
There is no law in this State, requiring that sureties on an 
attachment bond shall be resident in any particular county ; 
sufficient if they reside in any part of the State, if otherwise 
sufficient. The clerk, therefore, was not authorized to make 
residence in Marengo county one of the conditions of his ap- 
proval of the bond. It follows that the clerk has not consid- 
ered, but has declined to consider the sufficiency of the bond, 
in the sense the law contemplates and allows. The petitioner 
is entitled to a mandatory order, requiring the clerk to consider 
and pass upon the sufficiency of the bond offered, without 
reference to the county or counties of this State, in which the 
bondsmen reside ; and if, upon being properly certified of this 
order, the clerk refuses or fails to consider and pass upon the 
sufficiency of the bond, in the manner above directed, a mxin- 
danius will be awarded, directing and requiring him to do so. 

The special prayer for relief in this case is, that the clerk be 
commanded to approve said bond. This we can not grant. 
There is, however, a prayer for general relief, under which we 
make the order above set forth. 

Vol. lxxvi. 



1884.] OF ALABAMA. 325 

[Langworthy v. Goodall, McLester & Co.] 
Reversed and rendered. Tlie clerk will certify this order, 
and a copy of this opinion, to the Circuit Court of Marengo 
county. 



Langworthy i7. Goodall, McLester & Co. 

Statutory Trial of Right of Property in Organ. 

1. Form of judgment. — In a statutory claim suit to try the right to 
property on which an execution has been levied, the issue being found 
against the claimant, judgment should be rendered declaring the prop- 
erty liable to the satisfaction of the execution ; and it is erroneous to 
render a jmlgment, in the first instance, against the claimant and his 
surety, for the assessed value of the property, before the bond has been 
returned forfeited. 

2. Evidence of financial standing of purchaser, as relevant to question 
whether sale was absolute or conditional. - The issue being whether the 
claimant had sold the property absolutely to the defendant in execution, 
or had made a conditional sale, retaining the legal title until the purchase- 
money was paid, evidence as to the financial credit and standing of the 
defendant at the time of the sale, the amount of property then owned 
by him, &c., is. not relevant or admissible for any purpose. 

3. Evidence of terms of other sales, as relevant to same question. — The 
fatrt that the claimant made sales of similar property to other persons, 
without retaining the legal title in himself until the purchase-money was 
paid, is not relevant to the question whether the legal title was retained 
m the particular sale to the defendant ; but, a printed form of contract 
being used, with blank names and dates to be filled in writing, and the 
particular contract in controversy being lost, the court is "not prepared 
to say" that its printed contents might not be proved by other contracts 
in the same form, being in the nature of duplicate originals. 

Appeal from the Circuit Court of Blonnt. 

Tried before the Plon. Leroy F. Box. 

The record in this case shows that, on the 16th November, 
1883, an execution was issued on a judgment of said Circuit 
Court in favor of Goodall, McLester & Co., suing as partners, 
against J. M. Wooten, for $263.23, and was levied by the 
sheriff on the 19th January, 1884, on a parlor organ, described 
as a " Wilcox & White organ ;" that a claim to the organ was 
interposed by C. W. Langworthy, who made the statutory 
affidavit, and gave bond, conditioned that he " have the said 
property forthcoming for the satisfaction of the judgment, if 
it be found liable therefor, and pay such costs and damages as 
may be recovered for putting said claim in for delay;" that an 
issue was thereupon made up between the parties, under the 
direction of the court, and submitted to a jury, who returned 
a verdict in these words : " We, the jury, find the issues in 



326 SUPKEME COURT [Dec. Term, 

[Langworthy v. Goodall, McLester & Co.l 

favor of the plaintiffs, and assess the vahie of the organ at the 
sum of iifty dollars;" and that the court thereupon rendered 
judgment, " that the plaintiffs have and recover judgment 
against the said claimant for the sum of fifty dollars, the value 
of said organ by the jury so assessed, together with the costs 
in this behalf expended, and against the said H. H. Barclift 
[surety on the claim bond], for so much thereof as does not 
exceed the said sum of one hundred and fifty dollars," the 
penalty of the bond. 

On the trial, as the bill of exceptions shows, the plaintiffs 
having proved, by the sheriff, the levy of the execution on the 
organ in the possession of said Wooten, the defendant in exe- 
cution, and his declarations, at the time of the levy, that the 
organ belonged to his little daughter ; said Wooten was intro- 
duced by the claimant as a witness, and testified, in substance, 
that he bought the organ from the claimant, in October, 1881, 
at the price of $85, for which he executed his note, payable 
twelve months after date, and took a receipt from the claimant, 
which recited " that the organ was bound for the purchase- 
money ;" that he failed to pay the note at maturity, and after- 
wards surrendered the organ to the claimant, who cleaned it up, 
and left it in his possession until another sale could be effected, 
with the understanding that, as he had already paid $25 on it, 
he was to have another opportunity to buy it. The defendant's 
note for the price of the organ, as the claimant afterwards 
testified, was not surrendered to him until after the levy of the 
attachment; and on proof of, the loss of the note and receipt, 
the witnesses were permitted to testify as to their contents. 
Said Wooten was asked by plaintiffs, on cross-examination, "if 
he was not getting credit in market at the time he purchased 
said organ from claimant ;" to which question he answered, 
"that he then had good credit." Objections were duly made 
by the claimant to this question and answer, and except ons 
duly reserved to the overruling of each objection. The claim- 
ant, while testifying as a witness, stated that said Wooten, at 
the time of the sale of the organ to him, " was in business in 
the town of Blountsville ," and he was thereupon asked by 
plaintiffs, "What were Wooten's goods then worth?" The 
claimant objected to this question, and reserved an exception 
to its allowance by the court ; but the record does not state the 
answer of the witness. 

The claimant stated, while testifying as a witness for himself, 
that the receipt which he had given to said Wooten "was in 
substance as follows : 'Blountsville, Ala., Oct. 8 1881. Re- 
ceived of J. M. Wooten one note, amt. $85, due 12 months 
from date, and bearing interest at 8 per ct., for one Wilcox & 
White organ, now at Bangor, Ala., for which an order for the 

Vol. lxxvi. 



1884.] OF ALABAMA. 327 

[Langworthy v. Goodall, McLester & Co.] 

same is now given to said Wooten, and it is agreed 
and understood by said Wooten, that tlie legal title to the 
organ now purchased, and for wliich said note is given, shall 
remain in C. W. Langworthy until said note is paid in full, 
with the interest.' " On cross-examination of the claimant, 
the plaintiffs asked these questions : '' How many other persons 
in this neighborhood did you sell organs to?" "Did you give 
them the kind of receipt you gave Wooten?" The claimant 
objected to each of these questions, and duly excepted to their 
allowance; but the record does not state the answers of the 
witness. Plaintiffs also asked said witness, "if he had not sold 
an organ to J. L. Montgomery, who resided in Blountsville, 
and if he gave Montgomery the same kind of receipt he gave 
Wooten ;" to which he answered, " that he had sold an organ 
to said Montgomery, taking his note for the price, and giving 
him a receipt whicli, according to his best recollection, was 
substantially the same as that given to Wooten, and recited 
that the legal title to the organ was reserved by the said Lang- 
wortliy." To each of these questions, and to the answers 
thereto, the claiuiant duly objected and excepted. Said J. L. 
Montgomery was' afterwards introduced as a witness by plain- 
tiffs, and testified that the receipt given to him did not contain 
any recital as to the retention of the legal title to the organ by 
said claimant; exceptions being duly reserved by the claimant 
to each portion of his testimony. 

The several rulings of the court on evidence to which excep- 
tions were reserved by the claimant, and the judgment rendered 
on the verdict, are now assigned as error. 

Hamill & LiTSK, for appellant. 

T. N. McClellan, and L. R. TIanna, contra. 

SOMEKVILLE, J. — The judgment is manifestly erroneous. 
When an execution is levied upon personal property claimed 
by a stranger, and such propert}^ is restored to the claimant, 
upon his making affidavit that he has a just claim to it, the 
bond which he is required by the statute to execute is condi- 
tioned "to have tfie proj^erty forthcoming ior the. satisfaction of 
the judgment, if it be found liable therefor," and for the pay- 
ment or costs, and damages for delay. — Code, 1876, §334L The 
judgment against the claimant, therefore, in the first instance, 
must be one of condemnation of the property, declaring it 
liable to the satisfaction of the execution, as the property of 
the defendant in such execution. Where the levy is under an 
execution, and not a mere attachment unreduced to judgment, 
a judgment directing the property to be sold, to satisfy the 



328 SUPREME COURT [Dec. Term, 

[Langworthy v. Goodall, McLester & Co.] 

execution, has been held not to be erroneous. — Tyler v. Dennis, 
2 Ala. 144. A moneyed judgment for the assessed value of 
the property, or for the amount of plaintiff's execution, can not 
be rendered against the claimant and his sureties, until the 
bond is declared forfeited for failure to deliver the property to 
the sheriff, in the manner required by section 3344 of the Code. 
The judgment, in this case, is a moneyed judgment rendered 
against the claimant and his surety, without any forfeiture of 
such bond, and not a judgment of condenmation of the prop- 
erty in the hands of the claimant, as it should have been. 

The issue submitted to the jury in the case was, wliether the 
claimant, Langworthy, when he sold the property in contro- 
versy to the defendant in execution, Wooten, retained the legal 
title in himself by way of conditional sale. Upon the trial of 
this issue, it was entirely irrelevant to enter into an investiga- 
tion of Wooten's financial standing, the amount of property 
owned by him, and other collateral matters, touching the ques- 
tion of his good or bad credit. The inference that the sale was 
absolute, and not conditional merely, because of the vendee's 
reputed solvency, is too remote, the financial condition of the 
vendee being a matter purely collateral, and affording no rea- 
sonable presumption as to the principal matter in dispute, which 
was one of legal title alone. 

It was equally irrelevant, to prove that the claimant had sold 
similar articles of property to other persons, without retaining 
the legal title. This evidence was also collateral to the matter 
in dispute, and tended to draw away the minds of the jury 
from the real question at issue, — probably to excite some pre- 
judice in their minds, and to mislead them. If the rule were 
otherwise, as observed by Mr. Green leaf, " the true merits of 
the controversy might be lost sight of, in the mass of testi- 
mony to other points, in which they would be overwhelmed ; 
the attention of the jury would be wearied and distracted ; 
judicial investigation would become interminable ; the expenses 
might be enormous, and the character of witnesses might be 
assailed by evidence which they could not be prepared to repel." 
1 Green. Ev. §§ 448, 52 ; Singleton v. Thomas, 73 Ala. 205. 

If the evidence in question showed that the forms of con- 
tracts used in sales made to third parties were identical with 
the lost one which is sought to be proved, by reason of being 
printed from the same forms of type — thus being in the nature 
of duplicate originals, with the exception of dates and parties — 
we are not prepared to say that the contents of the one could 
not be proved by showing the contents of the other. This is 
not the case before us. 

The judgment is reversed, and the cause remanded. 
Vol. lxxvi- 



1884.] OF ALABAMA. 329 

[Doe, ex dem. Evans v. Richardson.] 



Doe, ex dem. Evans v, Ricliardsou* 

Ejectment. 

1. Amendment of complaint; take effect when. — An amendment of 
the comphiint, when properly allowed, relates back to the commencement 
of the suit, as to all matters within the lis pendens and issue between the 
parties ; but, when introducing any new matter, which is barred by the 
statute of limitations, or to which any other legal defense then exists, it 
takes effect only from the time of its introduction and allowance. 

2. Same. — \Vhere the action was brought against a married woman 
alone, by her name before marriage, and she filed a plea of coverture and 
misnomer; after which the complaint was amended, by leave of the 
court, by correcting the mistake as to her name, and by bringing in her 
husband as a defendant, who was summoned by an alias ; held, on a plea 
of the statute of limitations, interposed by the defendants jointly, that 
the statute run only to the commencement of the suit, and not to the 
allowance of the amendment, or to the issue of the alias summons. 

3. Joint plea by two, of defense good as to one only. — When two de- 
fendants join in a plea, which is sufficient for one of them only, it is bad 
as to both. 

4. Attestation and acknotvledgment of conveyance. — A conveyance of 
lands, signed by the grantors by mark only, without attesting witnesses, 
and acknowledged before the clerk r)f a Probate Court in Mississippi, 
where it was executed, whose certificate is not in the form prescribed by 
law (Code, ^ 2145-46, 2156-58), is inoperative as a conveyance of title. 

Appeal from the Circuit Court of Mobile. 

Tried before the Hon. Wm. E. Clarke. 

This action was brought by Abe Evans, to recover an undi- 
vided half interest in a certain lot or parcel of land in the city 
or Mobile. Mahala Loughridge was named as tenant in pos- 
session, in the original notice; and a summons was issued 
against her on the 23d January, which was served on the 28th 
January, 1878. She appeared, and Hied a plea averring that, 
at the commencement of the suit, and when her plea was filed, 
she was the wife of Joseph Richardson, and her name was 
Mahala Richardson. Thereupon, by leave of the court, at the 
Fall term, IbSl, the complaint was amended, "by making the 
name of the defendant Mahala Richardson (instead of Lough- 
ridge), and by adding the name of Joseph Richardson, her 
husband, as a party defendant." On the 20th May, 1882, as the 
minute-entry recites, "came the parties, by their attorneys, and 
it is ordered that an alias &nmmr>n6 be issued for the defendant, 
Joseph Richardson ; and the cause is continued by the plain- 
tiff." A summons was thereupon issued on the 13th Septem- 
ber, 1882, against Mahala and Joseph Richardson, which does 



330 - SUPREME COURT [Dec. Term, 

]Doe, ex dem. Evans v. Richardson. 1 

not on its face appear to be an alias i and this summons was 
served on said Joseph Richardson, on the 14th September, 
1882. The defendants jointly pleaded not guilty, the statute 
of limitations of ten years, and adverse possession for three 
years, with a suggestion of the erection of valuable improve- 
ments; and issue was joined on these several pleas. 

On the trial, as the bill of exceptions shows, the plaintiff read 
in evidence a deed executed by Alfred Palmer and wife, dated 
December 12th, 1868, by which the land in controversy was 
conveyed to Mahala Loughi-idge and Clarissa Evans ; and he 
claimed a half interest in the lands, as the surviving husband of 
said Clarissa Evans, who was his wife at the time said deed was 
executed, and by whom he had children. The plaintiff, testify- 
ing as a witness for himself, stated that the premises were occu- 
pied by said Mahala and her husband, Wash. Loughridge, and 
by hinjself and his wife, jointly, Trom the date of said deed, 
until ^^arch, 1869, when he removed to Mississippi, where he 
remained until 1873 ; that on his return to Mobile, in 1873, he 
and his wife again occupied the premises jointly with said 
Wash, and Mahala for several months, and quit the house be- 
cause said Clarissa and Mahala quarreled ; and that said 
Clarissa died, intestate, in April, 1875, leaving one child living. 
The defendants claimed said Clarissa's half interest in the prop- 
erty, under a deed executed by said Clarissa and her husband 
(the plaintiff), which was dated March 6th, 1869, and purported 
to be signed by them by mark only ; was without any attesting 
witnesses, but was acknowledged by the grantors, on the 19th 
March, 1869, before the clerk of the Probate Court of Lowndes 
county, Mississippi, whose certificate, appended to the deed, 
stated that the grantors appeared before him on that day, " and 
severally acknowledged tliat they signed, sealed and delivered 
the within deed, on the day and year, and for the purposes 
therein expressed ; " and further, " that the said Clarissa, on 
private examination separate and apart from her husband, ac- 
knowledged that she signed, sealed and delivered the same, as 
her act and deed, freely and voluntarily, and without any fear, 
threats or compulsion of her said husband." This deed recited 
a consideration of $300 in hand paid, and purported to convey 
the grantors' undivided interest in the property to said Wash. 
Loughridge ; and it was proved that said Wash, died in 1875, 
ti»e said Mahala claiming his interest as his surviving wife. 
The plaintiff objected to the admission of this deed as evidence, 
"because the same was not attested, nor acknowledged in the 
form prescribed, nor before an authorized officer, as required 
by law. The defendants then stated, that it was offered as color 
of title, and that they expected to show adverse possession of 
the interest claimed by plaintiff in this suit. The court there- 

VOL. LXXVI. 



1884.] OF ALABAMA. 331 

[Doe, ex dem. Evans V. Richardson.] 
upon ruled, that said deed, in connection with the deposition 
oi Baldwin " [the clerk by whom the certificate was made], 
" was competent evidence as color of title," and allowed it to be 
read in evidence for this purpose ; to which ruling the plaintiff 
excepted. The plaintiff testified, in rebuttal, that tiie consid- 
eration recited in said deed was never paid, and that the deed 
was executed and sent to said Wash. Loughridge, at his request, 
only for the purpose of enabling him to sell and convey the 
property for the joint benefit of the parties. 

"The defendants contended, before the court, that the statute 
of limitations continued to run in their favor down to the issue 
of the writ of September 18th, 1882 ; while the plaintiff con- 
tended, that said writ was only a continuation of the original 
suit, under the amendment allowed at a former term, as shown 
by the record ; but the record of the suit against Mahala 
Loughridge was not introduced as evidence. The court deter- 
mined, on inspection of the pleadings (there being no evidence 
offered on this question, on either side, except that the deputy- 
sheriff testified that the defendants were in possession of the land 
in September, 1882, when he served the summons and com- 
plaint on them, and that said Mahala had been living there, to 
his knowledge, since 1868, or 1869), that the process issued on 
the 13th Septijmber, 1882, must be held to be the commence- 
ment of an original suit, and that the statute of limitations 
would continue to run down to that date;" and so instructed 
the jury, in substance. The plaintiff excepted to this ruling and 
charge, and he now assigns it as error, together with the rmings 
of the court on the evidence. 

Jas. Bond, with whom was D. C. Anderson, for appellant, 
(1.) The instrument admitted as evidence, being signed by 
mark only, was inoperative as a conveyance, unless attested by 
two witnesses, or acknowledged in the form prescribed by law ; 
and the certificate appended to it is neither in proper form, 
nor made by an officer authorized to take and certify acknowl- 
edgments.— Code, §§ 2156, 2158; Stewart v. Beard, 69 Ala 
470 ; Dugger v. Collins, 69 Ala. 328. (2.) Being imperfect and 
ineffectual as a deed>, it can not operate as color of title. 
Allen V. Kellam, 69 Ala. 447 ; Callender v. Sherman, 5 Ired. 
711 ; Mocyre v. Brown, 11 How. U. S. 414 ; 8 Cowen, 589 ; 11 
Mart. La. 75 ; 4 Mart. N. S. 224 ; 25 Geo. 178 ; 21 Texas, 97. 
(3.) The husband of the original defendant was properly 
brought in as a party by amendment (Code, §§ 2892, 3156) ; 
and the amendment related back to the commencement of the 
suit, and avoided the plea of the statute of limitations. — Dow- 
ling V. Blackman, 70 Ala. 303 ; Stringer v. Waters, 63 Ala. 



332 SUPREME COURT [Dec. Term, 

[Doe, ex dem. Evans v. Richardson.] 

361 ; King v. Avery, 37 Ala. 169 ; Reed v. Scott, 30 Ala. 640 ; 
Long V. Patterson, 51 Ala. 414. 

CLOPTON, J.— Section 3156 of Code 1876 authorizes the 
amendment of the complaint, bj striking out or adding new 
parties defendant, upon such terms and conditions as the jus- 
tice of the case may require. The amendment, when allowed, 
relates to the date of tiling the original complaint. The limi- 
tation upon this doctrine of relation to the commencement of 
the suit is, that the amendment will not be permitted to de- 
prive the defendant of any rightful and legal defense. When 
any new matter or claim, not within the lis pendens and the 
issue between the parties, is introduced by amendment during 
the progress of a suit, and the statute of limitations operates a 
bar to such new matter or claim at the time of its introduction, 
the defendant may insist upon the benefit of the statute, as if 
the amendment were a new and original suit ; but, if the amend- 
ment introduces no new matter or claim, and simply varies the 
averments as to a subject already in issue, the statute will run 
only to the filing of the original complaint. — King v. Avery, 
37 Ala. 169 ; Mohr v. Lemle, 69 Ala. 180 ; Bowling v. Black- 
man, 70 Ala. 303. 

In Agee v. Williams, 30 Ala. 636, it was said : " " The de- 
fendant had held the adverse possession of the slave in contro- 
versy, under claim of title, from August, or September, 1848. 
His adverse possession had not continued long enough, at the 
commencement of the suit, to give him title ; but had continued 
long enough at the time the amendment was made to give him 
title, if no suit had previously been brought. The charge 
which he requested the court to give, assumes it to be law, that 
80 far as the adverse possession of the defendant is concerned, 
the amendment of the complaint is to be regarded as the com- 
mencement of the suit. But that assumption is not authorized 
by law. The amendment was not the beginning of a new suit, 
but the correction of a fault in the pending suit — the suit com- 
menced in October, 1853 ; and if, at the commencement of that 
suit, the adverse possession of the defendant had not continued 
for six years, it could not bar a recovery under the amended 
complaint." 

The date of the filing of the original complaint is not shown 
by the record ; but the summons was issued January 23, 1878. 
The notice given by the casual ejector to the tenant in posses- 
sion, to appear and defend, was directed to Mahala Loughridge, 
who appeared at the Spring term, 1878, and filed a plea of 
misnomer, averring therein that before, and at the time of the 
commencement of the suit, she was a married woman, the wife 
of Joseph Richardson, and ever since her marriage had been 

Vol. I.XXVI. 



1884.] OF ALABAMA. 333 

[Doe, ex dem. Evans v. Richardson.] 

known and called by the name of Mahala Kicliardson, and by 
no other name. Upon the filing of this plea, the plaintiff 
asked leave of the court to amend the complaint, so as to make 
the name of the defendant consistent with the name suggested 
in the plea. On May 16, 1881, the court granted the plaintiff 
leave to amend the complaint; and at the Fall term, 1881, the 
complaint, by leave of the court, was amended bj making the 
name of the defendant Mahala Richardson, instead of Mahala 
Loughridge, and also by n)aking Joseph Richardson a party 
defendant. On May 20, 1882, tlie court ordered that an alias 
summons i)e issued for Joseph Richardson, which was issued 
and served September 14, 1882. At the Fall term, 1882, both 
the defendants appeared, and iiled several joint pleas, among 
them the statute of limitations of ten years. 

The court charged the jury, "that if they should find from 
the evidence that Wash. Loughridge, from March, 1869, up to 
his death in 1875, and Mahala Loughridge, now Richardson, 
after his death, as his heir, had and held adverse possession for 
ten years prior to the 13th day of September, 1882, tiien the 
plaintiff can not recover." This charge assumes it to be law, 
that the alias summons which was issued, by order of the 
court, is to be regarded as the commencement of a new suit, so 
far as the adverse possession of the defendants is concerned. 
This assumption iserroneous. All the proceedings were had — 
the amendment, by which Joseph Richardson was added as a 
party defendant, was made, and the alia^ summons was issued 
— in a pending suit, that had been commenced in 1878. The 
suit was certainly commenced at the date of the filing of the 
original complaint, as to Mahala Richardson ; and if, up to that 
time, her adverse possession, and that of her former husband, 
Wash. Loughridge, had not continued for ten years, the statute 
of limitations can not bar a recovery. 

It is not necessary to inquire, what would have been the 
right of Joseph Richardson to insist upon the benefit of the 
statute, if he had filed a separate plea. If " two defendants 
join in a plea, which is sufficient for one, but not for the other, 
the plea is bad as to both." — Ooerdeer et al. v. Wiley ^ Banks 
c& Co., 30 Ala. 709. 

The deed from Abe and Clarissa Evans to Washington 
Loughridge, being without subscribing witnesses, and without 
acknowledgment as required by the statute, is inoperative as a 
conveyance of 'title. — Lord v. Polmar, 57 Ala. 615; Stewart v. 
Beard, 69 Ala. 470. We do not deem it necessary to consider 
the admissibility of the deed as evidence of color of title, as 
the question, probably, will not arise on another trial. 

Judgment reversed, and cause remanded. 



334 SUPEEME COURT [Dec. Term, 

[Thompson v. Duncan.] 



Thompson v. Duncan. 

Action for Damages on account of Personal Injuries^ hy Pas- 
senger against Receiver of Railroad. 

1. Contributory negligence; charge ignoring part of evidence. — In an 
action to recover damages for personal injuries sustained by a passenger 
on a railroad, contributory negligence being pleaded as a defense, and 
some evidence being adduced to support it, a charge asked which ignores 
that evidence, making the defendant's liability depend only on the care 
and diligence exercised by its servants, is properly refused. 

2. Standing near open door of car; notice or warning of danger. — "If 
there be any danger in standing near an open side-door of a car, when 
the train is starting or in motion, it is not an unreasonable presumption 
that persons of ordinary prudence are aware of it; " and when a person, 
so standing, is thrown from the car by the shock attendant on its coiip- 
ling with the train, and thereby injured, he can not complain that he was 
not notified of his danger, nor warned of the coming shock. 

3. Contributory negligence; burden of proof as to. — Contributory neg- 
ligence is defensive matter, which the plaintiff is not required to nega- 
tive in the first instance ; and a charge which asserts that, " before the 
plaintiff can be entitled to recover, the jury must be satisfied from the 
evidence (1) that the defendant, his agents or servants, have been guilty 
of fault or negligence, (2) that plaintiff has been 'thereby injured, and 
(3) that this damage has been without the lack of any reasonable care 
on his part," misplaces the burden of proof, and is erroneous. 

4. Same; luhen available as defense.— ^e^Wgence on the part of the 
plaintiff himself, to be available as a defense to an action, " must have 
contributed proximately to the injury;" "contributed in any way to 
tVie happening of the injury," is not an accurate expression, and is prob- 
ably misleading. 

Appeal from the Circuit Court of Mobile. 

Tried before the Hon. "Wm. E. Clarkp:. 

This action was brought by Joseph W. Thompson, against 
William B. Duncan, receiver and trustee of the Mobile & Ohio 
railroad, who was operating said road under the appointment 
of the United States Circuit Court at Mobile, to recover dam- 
ages for personal injuries sustained by plaintiff, by being thrown 
violently to the ground, from and through the open door of a 
''caboose car," in which he was a passenger from Mobile to 
Whistler, a station about live miles distant from "the city. The 
defendant pleaded the general issue, and a special plea averring 
contributory negligence on the part of the plaintiff; and the 
cause was tried on issue joined on these pleas. 

It appeared that the "caboose car" was part of a freight 
train, which carried passengers at the usual rates, and which 
left Mobile at twelve o'clock m., daily. The plaintiff was in the 

Vol. lxxvi. 



1884.] OF ALABAMA. 335 

[Thompson v. Duncan. 1 

habit of travelling on the train, and he entered the car while it 
was standing on the track, several minutes before it was coupled 
to the train. As to the circumstances attending the accident, 
the plaintiff thus testified as a witness in his own behalf: "I 
got on the caboose car before the same had been attached to 
the main train. I knew that the train had to back down, and 
couple the caboose to it before it started. When I entered the 
caboose, the only vacant seat I observed was something that 
looked like the half of a cot, that was standing against the 
side of the car, and the end of which was about six inches 
from the floor. I took my seat upon this cot, which placed me 
about two feet from the door of the car. While sitting in this 
position, the main part of the train backed down, a brakeman 
called for a long link, and some one handed him one, and I 
thought the coupling had been made; but, shortly afterwards, 
the main part of the train backed down against the caboose, 
with such force and violence that I lost my balance, and slid 
along the side of the car until I came to the door. The force 
was such that I struck my shoulder and hip against the further 
side of the door-facing as I fell out, and thence to the ground ; 
and nothing to catch hold of, I fell out on my neck and 
shoulders, which hurt me seriously. Some one assisted me up 
on my feet, but I got back in the car without assistance, look 
the same position I occupied before, and went on to Whistler." 

It was shown that the train consisted of about twenty cars ; 
that the "caboose" was about forty feet long, but only the 
central part was used for the accommodation of passengers, 
the two ends being used as a cook-room and conductor's room ; 
that the central part was only about iifteen feet in length, and 
there was on each side a door about six feet wide ; that several 
boxes, in which tools were kept, were used as seats for the pas- 
sengers, and there were several chairs. Some of the witnesses 
testified that the seats were all occupied when the plaintiff en- 
tered the car, but others said that several seats were then va- 
cant. As to the severity of the shock, the witnesses differed 
in their testimony ; some describing it as unusually severe, while 
others said that it was not more violent than usual in coupling 
a long train of cars. The brakeman who coupled the " caboose " 
with the other cars, testifying as a witness for the defendant, 
said that the coupling was effected by him without difficulty 
or danger, and that the shock was not any greater than usual ; 
though the plaintiff's testimony showed that two other persons, 
besides himself, were thrown from their seats. 

The above being the substance of the evidence, the plaintiff 
asked the following charges, which were in writing, and which 
the court refused to give: 1. "If the jury believe, from the 
evidence, that the plaintiff was a passenger on the railroad car 



336 SUPEEME COURT [Dec. Term, 

[Thompson v. Duncan.] 

of the defendant when the injury occurred, and that lie was 
injured by an accident occurring while such passenger; and if 
they further find that such accident could have been avoided 
by the use of very great care and diligence by those in charge 
of the movement of the cars, then the defendant would be 
liable." 2. " If the plaintiff was injured while a passenger on 
the defendant's railroad cars, by the negligence and want of 
care of the employees of the defendant having control of the 
cars, the defendant would be liable, although the jury may be 
satisfied that the negligence was not gross, but slight in its 
character." 3. ''If the jury should find from, the evidence 
that, from the number of passengers on board of the car, and 
from the lack of seating accommodation, plaintiff was obliged 
to stand up in the car ; and if they further find, from the evi- 
dence, that the shock which would necessarily result from 
bringing the other cars against the caboose, for the purpose of 
coupling it, would be so great as to throw down a passenger 
who was standing, if such stock should come without warning ; 
then it would be the duty of the officers of the train, having 
knowledge of these facts, to warn the passengers before giving 
such shock ; and if, under such circumstances, no warning was 
given, and the plaintiff was not otherwise made aware of the 
coming of such shock, and was in fact taken unawares, then 
the defendant would be guilty of negligence in not giving 
notice or warning." 

The plaintiff duly excepted to the refusal of each of these 
charges, and also to several charges given by the court at the 
instance of the defendant, among which were the following : 
6. " Even if the jury should be satisfied, from the evidence, 
that there was misconduct or negligence on the part of the de- 
fendant, his agents or employees, and that the plaintiff sustained 
injury in consequence of it; still, if the jury should also be 
satisfied, from the evidence, that there was any want of 
ordinary care on the part of the plaintiff, and such lack of 
ordinary care contributed in any way towards the happening 
of the injury, then the jury must find for the defendant, unless 
the evidence shows to their satisfaction that the injury was 
wantonly or intentionally caused by the defendant." 9. " Be- 
fore the plaintiff can be entitled to recover in this case, the 
jury must be satisfied from the evidence (1) that the defendant, 
his servants or agents have been guilty of fault or negligence, 
(2) that the plaintiff has been thereby injured, and (3) that this 
damage has been without the lack of any reasonable care on his 
part ; unless the jury are also satisfied, from the evidence, that 
the alleged damage was wantonly or intentionally caused by the 
defendant, his servants or agents." 

Vol. lxxvi. 



1884.] OF ALABAMA. 337 

[Thompson v. Duncan. 1 

The refusal of the cliarges asked, and the charges given to 
which exceptions were reserved, are now assigned as error. 

Jas. Bono, for the appellant. — Wiien passengers are carried 
regularly or habitually on freight trains, the degree of care 
and diligence required of the railroad company is the same as 
on regular passenger trains. — Edgerton v. Railroad Co.^ 39 N. 
y. 227 ; Dunn v. Railroad Co., 58 Maine, 187 ; Railroad Co. 
V. Il&rst, 3 Otto, U. S. 291 ; Thompson on Carriers of Passen- 
gers, 234, 328, 343. The degree of care and diligence required 
in such cases is correctly stated in tlie first and second charges 
asked and refused. — Brown v. Railroad Co., 34 N. Y. 404 ; 
Tanner V. Railroad Co., 60 Ala. 621 ; Railroad Co. v. Gothard, 
67 Ala. 116 ; Thomp. on Carriers, 200, 201. It was not necessary 
that these charges should negative contributory negligence on 
the part of the plaintiif, since that was defensive matter. — Rail- 
road Co. V. Clark, 74 Ala. 443. But there was no proof of 
any contributory negligence, and charges in reference to it 
were abstract. The plaintiff was in no fault — he was inside 
of the car, and in a lawful position, which neither caused nor 
contributed to the injury. — Willis v. Railroad Co., 34 N. Y. 
670 ; 8. c, 32 Barb. 399 ; Carroll v. Railroad Co., 6 Duer, 415 ; 
ITahey v. Earle, 30 N. Y. 208 ; Farlow v. Kelly, 108 U. S. 
288; 2 Redf. on Railways, § 177. That the third charge asked 
should have been given, see Laing v. Colder, 8 Penn. St." 479 ; 
Railroad Co. v. Ogier, 35 Penn. St. 60. If it be held that 
there was evidence which justified the court in submitting to 
the jury the question of contributory negligence, then it is in- 
sisted that the court erred in the charges given, Ist, in mis- 
placing the burden of proof; and, 2d, in not limiting the 
in(juiry to negligence which proximately contributed to the 
injury, instead of "contributed in any way." — Tanned' v. Rail- 
road Co., supr'a; Railroad c5 Banking Co. v. Letcher, 69 Ala. 
107 ; Railroad Co. v. Copeland, 61 Ala. 376. 

T. A. Hamilton, contra. — The first and second charges 
asked ignored the question of contributory negligence, which 
the evidence tended to prove, and were properly refused for 
that reason.— 66 Ala. 275 ; 68 Ala. 267 ; 23 Ala. 17 ; 51 Ala. 
394; 54 Ala. 123. That the plaintiff could not recover, if his 
own negligence, or want of ordinary care and prudence, con- 
tributed to the injury, is shown by numerous authorities, 
Wiiarton on Negligence, §§ 130-33, 300 ; 95 IT. S. 697 ; 14 
Allen, Mass. 431 ; 3 Allen, 18 ; 25 111. 373; 53 Ala. 70; 23 
Penn. St. 147; 62 Ala. 500; 1 Biss. 506. When the plaintiff 
entered the car, he knew that it must be attached to the train ; 
he was in the habit of travelling on the train, and must liave 
22 



338 SUPREME COURT [Dec. Term. 

[Thompson v. Duncan.] 

known that a shock, more or less severe, always attends the 
coupling of cars; and he can not complain that he was not 
notified of that fact when the coupling was made. As to the 
correctness of the 9th charge, see Whart. Neg. § 421 ; Shear. 
& Redf. Neg. §§ 11, 12; 2 Kernan, N. Y. 236 ; 95 U. S. 442, 
and 702 ; 28 Ala. 412 ; 61 Ala. 376 ; 67 Ala. 118 ; 69 Ala. 106 ; 
14 Allen, 429. 

STONE, C. J. — We can not say there was no evidence in 
this case tending to show contributory negligence on the part 
of the plaintiff. Hence we hold the Circuit Court was justified 
in submitting that question to the jury. 

The first and second charges asked by plaintiff were rightly 
refused. They ignored the question of contributory negli- 
gence, upon which there was some testimony. Nor do we 
think the third charge of plaintiff should have been given. It 
is not shown any ofiicer or employee of the railroad had any 
knowledge that plaintiff liad taken a dangerous position in the 
" caboose," nor indeed is it shown there was any officer or em- 
ployee in the car. Persons entering the "caboose" would be 
apt to observe whether or not it was attaclied to the train ; and 
if there be danger in standing near an open side door in a car, 
when the train is starting, or in motion, it is not an unreasonable 
presumption, that persons of ordinary prudence are aware of 
it. In transitions from rest to motion, or from motion to rest, 
there is ordinarily some disturbance of the equilibrium, the 
result of inertia. This is common knowledge. 

In the ninth charge given at the instance of the defendant 
the Circuit Court erred. True, before plaintiff could recover, 
it was incumbent on him to satisfy the jury that the defendant, 
his servants or agents, had been guilty of fault or negligence, 
and that he, plaintiff, had been thereby damaged. It was not 
his duty to prove that this damage had been done through no 
want of reasonable care on his part. Nor was it necessary that 
the jury should, by their verdict, afiirm that plaintiff had not 
contributed to the injury. Contributory negligence is in its 
nature defensive, the disproof of which does not rest on 
plaintiff, unless in rebuttal of defensive testimony tending to 
establish it. Like the defense of payment, or set-off, when 
pleaded, a general verdict for the plaintiff is simply an asser- 
tion, or finding, that the defense had not been proved. The 
error of the charge is, that it tnisplaced the onus^ in the matter 
of contributory negligence. — Ind. i& St. L. R. R. Co. v. Ilorst, 
93 U. S. 291. 

The sixth charge given is also subject to criticism. "Con- 
tributed in any way to the happening of the injury," is prob- 

V^OL. LXXVI. 



1884.] OF ALABAMA. 339 

(Burns & Co. v. Moore & McGee.] 

ably misleading. To come witliin the rule, plaintiff's negligence 
must contribute proximately to the injury inflicted. 
Reversed and remanded. 



Burns & Co v. Moore <& McGee. 

Action on Promissory Note^ hy Payees against Makers. 

1. Judgment against one of several defendants, in action on note. — In an 
action against two or more persons as joint makers of a promissory note, 
or other contract made joint and several by statute (Code, §§ 2905, 2919), 
judgment on verdict may be rendered against one, and in favor of the 
others. 

2. Date of promissory note ; admissibility of parol evidence as to. 
The date of a promissory note is only prima facie evidence of the day on 
which it was executed, and parol evidence is admissible to show that it 
was in facfexecuted on another day. 

3. When note takes effect as contract. — A note takes effect as a con- 
tract, not from the day on which it is dated or signed, but from the day 
on which it is delivered ; and if it was not delivered on Sunday, its 
validity is not affected by the fact that it was dated or signed on that 
day. 

4. Contracts made on Sunday; exception "in case of necessity." — ^A 
contract made on Sunday, if ma^e " in case of necessity," is not void 
(Code, § 2/38) ; and when there is any evidence whatever tending to 
show that the contract sued on was made in a " case of necessity," as 
the words are used in the statute, the sufficiency of that evidence should 
be submitted to the jury. 

5. Same. — The necessity which will bring a case within this excep- 
tion to the statute, if not physical, must involve, at least, a moral 
emergency which will not reasonablv admit of delay, and which resfcues 
the act from the imputation of a willful desecration of the day; and the 
inconvenience which might ordinarily result from a day's delay in 
travelling is not such an exigency as tends to establish a case of neces- 
sity, or requires that the sufficiency of the evidence should be submitted 
to "the jury. 

Appkal from the Circuit Court of Madison. 

Tried before the Hon. II. C. Speake. 

This action was brought by Burns & Co., a mercantile part- 
nership doing business in Nashville. Tennessee, against R. R. 
Moore and Henry McGee, as joint makers of a promissory note 
for $264.50, which was dated "Nashville, Tenn., August 7th, 
1875," and payable six months after date, to the order of said 
Burns & Co., at the bank of Fordyce & Rison, in Huntsville, 
Alabama, " with interest after maturity at ten per-cent. per 
a?inurn.^^ The defendants jointly pleaded, " in short by con- 
sent," that the note was void because executed on Sunday, and 
several other special pleas ; and the defendant McGee separately 



340 SUPEEME COURT [Dec. Term, 

[Burns & Co. v. Moore & McGee.] 

pleaded several other defenses. Issue was joined, without ob- 
jection, on all of these pleas ; and under the evidence adduced, 
and the charges of the court, the jury returned a verdict 
against said R. R. Moore, and in favor of said Henry McGee. 
On this verdict, the court, having overruled a motion in arrest 
of judgment, rendered judgment in favor of plaintiffs against 
said Moore, for the principal of the note sued on (the defense 
of usury being admitted), and in favor of said McGee, for 
costs. 

On the trial, as the bill of exceptions shows, the plaintiffs 
read in evidence the deposition of M. Burns, a member of 
their firm, by whom the note was taken and accrepted, and who 
testified, in substance, that he went from Nashville to Hunts- 
ville for the purpose of effecting a settlement of an old debt 
which Moore owed his house, and for part of which McGee 
was bound ; that he made a settlement with Moore, at his 
business house in Huntsville, on Saturday, August 7th, 1875, 
and then sat down and wrote out the three notes which he had 
agreed to take, the last being the note now sued* on; that 
Moore then signed the notes, and delivered them to him, and 
said that McGee would become surety for him on the last note; 
that he then gave the note i)ack to Moore, in order that he 
might procure the signature of McGee, which Moore promised 
to obtain, and to return the note to him that night ; that Moore 
did not return the note to liim, with McGee's signature, until 
the next da}^ which was Sunday, and then told him that Mc- 
Gee had signed it on Saturday niglU. Said McGee, testifying 
as a witness for the defendants, stated, that said Burns came to 
his hotel in Huntsville on Friday night, and remained until four 
o'clock on Sunday afternoon; that said Burns, "a few hours 
before he left on the train, persuaded him (witness) to sign said 
note, saying that it would be an accommodation to liis iiouse in 
Nashville, and would enable them to raise money on the note ; 
that he refused to sign said note when presented to him, be- 
cause it was Sunday, and said it would be of no account ; and 
that Burns thereupon said, ' We never expect you to pay it, hut 
we want your name, so we can raise money on it /' " and that 
this occurred after dinner on Sunday, before the four o'clock 
train left. 

The court, in its general charge to the jury, instructed 
them, among other things, as follows: " You may find the 
issues in favor of the plaintiffs, against one of the defendants; 
in which case, your verdict will be, ^ We, the jury, find the 
issues in favoi' of plaintiffs, against the defendant,^ nunnug^ 
him, 'and assess their damages af the amount of the princi- 
pal of the note sued on. And you may find in favor of the 
other defendant ; in which case, your verdict should be, ' We, 
Vol. lxxvi. 



1884.] OF ALABAMA. 341 

[Burns ik Co. v. Moore & McGee.] 

the jury, find the issues in favor of the defendant,'' naming 
him." To this part of the general charge the plaintiffs ex- 
cepted. 

The court also gave the following charges to the jury, on 
the re([ue8t of the defendants : (1.) " If Burns reached Ilunts- 
ville on Friday, for the purpose of having the debt against 
Moore settled, and obtained McGee's signature on Sunday, and 
it was delivered to Burns on that day, no question of necessity 
for tlie execution of the note on Sunday arises in the case." 
(2.) " The execution of a note consists in the signing and de- 
livery. If the note here was signed on Sunday, August 8th, 
it could not be delivered on Saturday, August 7th ; and if the 
jury believe that McGee signed the note on Sunday, and that 
Burns left lluntsville on Sunday, they will consider from these 
facts, whetiier Burns obtained the note from said McGee." (3.) 
" The facts of this case do not show a case of necessity for the 
execution of the note on Sunday." (4.) " If the jury believe 
that said Burns gave the note to Moore on Saturday night, for 
the purpose of obtaining McGee's signature ; and that Moore 
then signed it, and carried it to McGee, who signed it, and de- 
livered it on Sunday, this would be an execution of the note on 
Sunday, and it would be void as against McGee." The plain- 
tiffs excepted to each of these charges, and they then requested 
five charges in writing, each of which was given by the court. 

The plaintiff's now assign as error that portion of the general 
charge of the court to which they excepted, as above stated, 
and also the live charged given as " requested hy appellants^'' 

Jno. D. Brandon, for appellants. 

L. Cooper, contra. 

SOMKRYILLE, J. — It can be no ground of sufficient ob- 
jection, that judgment was rendered, upon the note sued on, 
against only one of the two defendants who were parties to the 
suit, and that judgment was rendered, on a proper verdict, in 
favor of the other defendant. The statute expressly provides, 
that " when suit is instituted against several defendants, the 
plaintiff may recover against one or more, but is liable to costs 
to those against whom he does not obtain judgment." — Code, 
1876, §§ 2919, 2905 ; Steed v. Barnhill, 71 Ala. 157. 

The main question raised by the rulings of the court is, 
whether the note is void as to the defendant McGee, as a con- 
tract executed in violation of the Sunday law. The statute 
declares, that " all contracts made on Sunday, unless for the 
advancement of religion, or in the execution, or for the per- 



342 SUPREME COURT [Dec. Term, 

[Burns & Co. v. Moore & McGee.] 

formauce of sorne work of charity, or in case of necessity, are 
void."— Code, 18Y6, § 2138. 

The note bears date on Saturday ; but this was only prima 
facie evidence of the true date of execution, which could be 
shown by parol proof. — Aldridge v. Br. Bank at Decatur, 17 
Ala. 45. 

So, it is clearly immaterial, whether the note was signed on 
Saturday, and delivered on Sunday, or was both signed and de- 
livered on the latter day. The mere writing and signing a note 
on Sunday, unless it be then delivered, will not avoid it.^ — Flana- 
gan V. Meyer cfe Co., 41 Ala. 132 ; Love v. Wells, 25 Ind. 503. 
The date of the making of such a contract, within the meaning 
of the statute, is, therefore, necessarily the day of its delivery, 
for the reason that it can have no efficacy or binding force until 
the act of delivery is performed. — King v. Fleming (72 111. 
21), 22 Amer. Rep. 131 ; Butler v. Zee, 11 Ala. 885 ; C lough 
V. Davis, 9 New Hamp. 500 ; 2 Parsons Cont. 763. 

The rulings of the court are in strict harmony with these 
views. 

It will be observed that all contracts, of whatever nature, are 
rendered void by the statute, if made on Sunday, unless they 
fall within one of the classes of cases specially excepted. The 
law is, therefore, more sweeping in its vitiating effects than the 
former statute in this State, known as the act of 1803, or the 
English statute of 29 Charles II, being on the same subject- 
matter. — Saltmarsh v. Tuthill, 13 Ala. 390. 

It is insisted that the evidence tended to show, that the mak- 
ing of the note in controversy was a case of necessity, and that 
the court should have submitted this issue to the jury, as mak- 
ing a case within one of the exceptions of the statute. If there 
was any evidence introduced on the trial, from whicii such an 
inference could be drawn, the question of the sufficiency of this 
evidence should have undoubtedly been left to the jury for their 
determination. — Hooper v. Edwards, 18 Ala. 280 ; Feital v. 
Middlesex Railroad, 109 Mass. 398. But the facts of the case 
tended to establish no such conclusion. The term necessity, as 
used in such statutes, means more than physical necessity. It is 
universally construed by the court to involve also considera- 
tions of moral fitness and propriety under the peculiar circun)- 
stances of the particular case. The design of the law is to pre- 
serve, to some extent, the sanctity of the Christian Sabbath, by 
discouraging indulgence in certain kinds of business of a secu- 
lar nature. — Smith v. Boston R. R. (120 Mass. 490), 21 Amer. 
Rep. 538; Johnson v. People, 31 111. 469; Code, 1876, §§ 
4443-44. The necessity which will excuse, if not a physical 
one, must, at least, be a moral emergency which will not rea- 
sonably admit of delay, but is so pressing in its nature as to 

Vol. lxxvi. 



1884.] OF ALABAMA. 343 

[Sharp V. Robertson's Executors. | 

rescue the act done froti) the imputation of a willful desecration 
of a day made sacred for certain purposes in morals as well as 
in law. To this class belongs, as it has been held by this court, 
a contract by which a creditor secures an indemnity from an 
absconding debtor, who was pursued and overtaken on Sunday. 
Hooper v. Edwards, 18 Ala. 2S0. And an undertaking of bail 
which is entered into on Sunday. — Hammons v. The State, 59 
Ala. 164. Such, too, it has been said, is the act of repairing a 
defect in a public highway which constantly endangered the 
safety of travellers. — Elagy v. InhaJntantfi of MiUhury, 4 Cush. 
(Mass.) 243. And the loading of a vessel where there is 
danger of navigation being closed. — McGatrick v. Wason, 
4 Ohio St. 560. Not so, however, it has been said, with the 
execution of a promissory note on Sunday, made to procure the 
discharge of the principal maker, who had been arrested on a 
charge of bastardy. — Shippy v. Eastwood, 9 Ala. 198. Or the 
clearing out of a wheel-pit on the Sabbath, for the purpose of 
preventing the stoppage, on a week day, of mills which em- 
ployed a large humber of hands. — McGrath v. Mervin (112 
Mass. 467), 17 Amer. Rep. 117. 

We see in this case no elements of either physical or moral 
necessity. No emergency is shown which excuses the taking 
of the note on Sunday. The plaintiff. Burns, who took the 
note from McGee, is shown to have arrived at Iluntsville on 
Friday, and remained there until Sunday afternon. No excuse 
is shown for delaying the act until a short time before his de- 
parture M'hich bears the appearance of a moral exigency. No 
excuse is shown for not postponing the act another day, except 
the mere inconvenience of an ordinary delay in travelling. The 
court properly charged the jury, that the case did not present 
one of " necessity " within the contemplation of the statute. 

Affirnud. 



Sharp V, Robertson's Executors. 

Statutor'y Action in nature of Ejectment. 

1 . Contracts of infants ; hy whom avoided. — The contracts of an infant, 
whether executed or executory, are voidable at his election — subject to 
be affirmed or disaffirmed by him on attaininj; his majority ; and while 
this privilege is personal, not being transferable, nor capable of exercise 
by any third person during the life of the infant, it may be exercised, in 
the event of his death during minority, by his legal representatives, who, 
where the contract is a sale or conveyance of lands, are his heirs, or 
privies in blood, succeeding to his estate, 



344 SUPREME COURT [Dec Term, 

[Sharp V. Robertson's Executors.] 

2. Conveyance of lands adversely held. — A conveyance of lands which 
are at the time in tlie actual occupancy of a third person, claiming ad- 
versely to the grantor, though without color of title, is void as against 
such adverse holder ; as where he holds and claims under a parol con- 
tract of sale, which is voidable. 

3. General exception to charge. — A general exception to a charge as- 
serting several separate and divisible propositions, one of which is cor- 
rect, can not be sustained. 

4. Errors assigned, but not insisted on. — Assignments of error, not in- 
sisted on in the brief or argument of counsel, will be regarded as waived. 

Appeal from the Circuit Court of Fayette. 

Tried before E. A. Poavell, Esq., an attorney of the court, 
selected by the parties on account of the incompetency of the 
presiding judge. 

This action was brought by Mrs. D. J. Sharp, against the 
executors of John C. Robertson, deceased, to recover an undi- 
vided one-sixth interest in a tract of land particularly described 
in the complaint; and was commenced on the 10th January. 
1882. The defendants pleaded not guilty, the statute of limi- 
tations of ten years, and adverse possession by their testator at 
the time of execution of the deed under which plaintiif claimed ; 
and issue was joined on all of these pleas. On the trial, as 
appears from the bill of exceptions, it was shown that the lands 
sued for had belonged to W. O. Strickland, and were in his 
possession at the time of his death, which occurred prior to the 
year 1860 ; that the heirs-at-law of said Strickland were his four 
daughters, Rowena (the wife of S. A. McGinnis), M. A. 
McGrinnis (the wife of L A. McGinnis), Louisa Perkins, and 
Jane Strickland ; and that said Jane Strickland died on the 20th 
October, 1866, at about the age of seventeen years, leaving no 
descendants. Plaintiff then read in evidence a deed dated May 
6th, 1868, by which said Rowena and M. A. McGinnis and 
their respective husbands conveyed to her their entire interest 
in the lands, and rested her case. "Defendants then read to 
the jury a deed dated January 20th, 1865, by which said 
Rowena McGinnis and her husband conveyed to said John C. 
Robertson, defendants' testator, their entire interest in the lands 
sued for ; and offered in evidence another deed, dated May 18th, 
1866, which purported to be made by said M. A. McGinnis and 
her husband, but was signed and acknowledged by her only, 
and which recited that it conveyed to said testator all their ir»- 
terest in said lands;" which last deed was admitted by the 
court, against plaintiff's objection and exception, 'Miot as evi- 
dence of title, but to show color of title ; " and they also read 
in evidence a third deed, dated March 17th, 1873, by which 
said Louisa Perkins and her husband conveyed to said testator 
their interest in said lands. " Defendants then offered evidence 
tending to show that their testator went into possession of said 

Voii. LXXVI. 



1884.] OF ALABAMA. 345 

[Sliarp V. Robertson's Executors.] 

land in 1866, and liad continued in the open, notorious, (|uiet 
and uninterrupted possession of the same, accompanied witjj 
acts of ownership, up to the coinmenceinent of this suit ; also, 
that tlieir said testator purchased of said Jane Strickland, in 
1866, her entire interest in said lands, and paid her for the same 
in money, goods, ifec. ; that nu deed was execMited, but their 
testator had possession of said land at the time ; and they offered 
no written evidence of title to the share of said Jane Strick- 
land. Plaintiff objected to the introduction of this evidence, 
because said contract was violative of the statute of frauds, and 
because the same was voidable, being a transaction with a 
minor;" which objections were overruled by the court, and 
exceptions duly reserved by plaintiff. " Plaintiff' then stated to 
the court, that she sued only for the shares of said Rowena and 
M. A. McGinnis in the interest of said Jane Strickland, or one- 
sixth interest in the lands." 

"This was all the evidence offered or given, Thereu])on, 
the court charged the jury, among other things, that if they 
should believe, from the evidence, that defendants' testator 
bought from Jane Strickland her interest in her father's lands, 
and paid for the same, and was put in possession by her, said 
transaction was not void, but voidable only, even if she was a 
minor at that time; and that she alone could repudiate said 
trade; and if she died during minority, without having repu- 
diated such trade, that the same must stand. The court charged 
the jury, also, that if defendants' testator, through whom they 
claimed possession, was in open, notorious, and adverse posses- 
sion of the land, exercising acts of ownersliip over it, at the 
time plaintiff purchased from said McGinnises and their wives, 
then plaintiff can not recover in this action, because there was 
an adverse possession by another at the time of her purchase. 
To the giving of these charges plaintiff excepted." 

The court also gave the following (with other) charges, on 
the request of the defendants: 1, "If the jury believe, from 
the evidence, that the defendants and their testator, through 
and from whom they claimed possession, have been in continu- 
ous, actual occupancy of the lands sued for, independently, 
and under claim of right, for ten years, this is equivalent to a 
legal title, on which tliis action may be defeated ; and neither 
title, nor color of title, is necessary to perfect this right." 
4. " If the jury believe, from the evidence, that defendants' 
testator was in adverse possession of the lands sued for, before 
and at his death, and that such possession was continued by de- 
fendants, through their testator, either under paper title or 
otherwise, for ten years before the commencement of this suit, 
then plaintiff can not recover in this action." To each of these 
charges exceptions were reserved by the plaintiff. 



346 SUPREME COURT [Dec. Term, 

I Sharp V. Robertson's Executors.] 

Tlie several charges given, to which exceptions were re- 
served, are now assigned as error. 

Garrett & Phelan, for appellant, cited Ewell's Leading 
Cabes, p. 90, and authorities there referred to. 

Ne Smith & Sanford, with H. C. Tompkins, contra, cited 
liiggs V. Fuller, 54 Ala, 141 ; Ryan t. Kiljjatrick, 66 Ala. 
332 ; Eureka Co. v. Edwards, 71 Ala. 248 ; Jones v. Davis, 
2 Ala. 230; Insurance Co. v. Goodman, 32 Ala. 108; Ilam- 
rnett v. Brown, 60 Ala. 49 s ; Humes v. Bernstein, 60 Ala. 582 ; 
Smith V. Roberts, 62 Ala. 83 ; \Yilson v. Glenn, 68 Ala. 383. 

CLOPTON, J. — The contracts, executory or executed, of an 
infant are voidable, subject to be affirmed or disaffirmed at his 
election, on arrivhig at full age. The privilege of avoiding 
the contract is personal, conferred on the infant himself. 
During his life, no other party can avoid the contract. Inter- 
ference by strangers, wrong-doers, or persons having no interest 
in the subject-matter, will not be tolerated or permitted ; and 
the privilege not being transferable, can not be exercised by 
assignees, or privies in estate. Although the privilege is said, 
generallj', to be personal, it extends to his legal representatives, 
who may, after his death, affirm or disaffirm the contract of 
the infajit, in regard to matters where they succeed to his in- 
terest, or represent him. — Jefford v. Ringgold, 6 Ala. 544. 
And it may be regarded as settled, that an infant's contracts, 
in reference to the sale or conveyance of land, may be avoided 
by his heirs, or privies in blood, who succeed to his estate. 
Ferguson v. Bell, 17 Mo. 348; Breclcenh ridge v. Ormsby, 1 J. 
J. Marsh. 248; Levering v. Reighe, 2 Md. Ch. Dec. 88; Smith 
V. Mays, 9 Mass. 62; Ewell's Lead. Cas. 89. The court erred 
in instructing the jury, that if the infant died without having 
repudiated the contract, it must stand ; it having been shown 
that she died during infancy. 

It has been uniformly held in this State, that a conveyance 
of lands which are, at the time of the conveyance, in the ad- 
verse possession of a third person, under claim of right, is 
void as against the adverse holder, and will not sustain an 
action of ejectment against him to recover possession. — Bern- 
stein V. Humes, 60 Ala. 580. That the adverse possession may 
have this effect, there must be actual occupancy ; but color of 
title is not requisite. The fact that the adverse holder claims 
under a parol contract of sale, which conveys no title, and is 
voidable, is immaterial. It is sufficient as a claim of right or 
ownership. — Vandiveer v. Stickney, 75 Ala. 225. The charge 

Vol. lxxvi. 



1884.J OF ALABAMA. 347 

[McHan v. Ordway, Dudley & McGuire.] 

of the court on this subject asserted a correct proposition of 
law. 

'J he exception to the general charge of the court, wliich as- 
serts separate and divisible propositions, is general; and one 
of them being correct, the error above mentioned can not work 
a reversal. 

Tie only other errors insisted on in the argument of counsel, 
are as to the first and fourth charges given at the request of 
defendants. We find nothing objectionable in these charges, 
when considered in connection with the evidence. The charges 
state, hypothetically, the facts requisite to complete the bar of 
the statute of limitations; which, when complete, gives to the 
party, in whose favor it has run, a right on which he may pros- 
ecute or defend an action of ejectment. — FaT7ner'8 Heirs v. 
Eslava, 11 Ala. 1028. 

We do not consider the other assignments of errors, as, not 
having been insisted on in argument, they will be regarded as 
waived. — Robertson v. Bradford, 73 Ala. 110. 

Atiir.med. . 



McHaii V. Ordway, Dudley & McGuire. 

BiU in Equity hy Mortgagee as Purchaser at Mortgage Sale. 

1. Pnrchaite by mortgagee at sale under power; equitable relief to him. 
When a morigagee becomes the purchaser at his own sale under a power 
in the mortgage, he does not thereby acquire any title beyond that vested 
in him as mortgagee; buf; being bound by the sale, he may come into 
equity to have it confirmeci and his title perfected, unless the mortgagor 
makes a seasonable application to set aside the sale and be let in to re- 
deem ; and he may offer in his bill to have the lands resold, at the option 
of the mortgagor, although the latter has, by his laches, lost the right to 
ask a resale. 

2. Allegations of fraud in concealment, cancellation and destruction of 
deed. — General averments of fraud, not stating* the particular facts in 
which it consists, are not sufficient. Thus, where a mortgagee, being 
defeated in an action at law for the recovery of the lands, files a bill in 
equity against the mortgagor and the defendant in possession, alleging 
that, prior to the execution of the mortgage, they had effected an ex- 
change of lands, by which the mortgagor had obtained the lands con- 
veyed by the mortgage ; " that said defendants, since the execution of 
said mortgage have fraudulently cancelled the trade which they had 
previously made, and have fraudulently withheld from record said deeds 
which they had executed to each other, and now liave said deeds in their 
possession, or under their control, or liave destroyed the same, and, by 
such false and fraudulent conduct, are trying to defeat complainant from 
recovering the possession of said lands;" these averments, as charges 
of fraud, are not sufficiently definite and specific to autliorize relief. 



348 SUPREME COURT [Dec. Term, 

[McHan v. Ordway, Dudley & McGuire.] 

Appeal from the Chancery Court of Blount. 

Heard before tlie Hon. Thomas Cobbs. 

The original bill in this case was filed on the 5th November, 
1883, by the appellees, suing as late partners, against William 
Conant and James McHan, and sought a discovery and relief, 
but, by an amendment of the bill, the prayer for discovery was 
stricken out. The facts on which the prayer for relief was 
founded, briefly stated, w^ere these: On the 13th February, 
1878, said William Conant conveyed to complainants, by mort- 
gage, a tract of land therein particularly described, to secure the 
payment of a note of that date ; copies of which note and mort- 
gage were made exhibits to the bill. The note not being paid 
at maturity, the complainants foreclosed the mortgage, by a 
sale under the power therein contained, and became themselves 
the purchasers at the sale. At the time the mortgage was ex- 
ecuted, Conant was in possession of the lands, claiming them 
as his own, and exercising acts of ownership over them ; having 
previously obtained them from said James McHan in exchange 
for another tract of land, and having at least a perfect equity to 
them ; while the i)ill further alleged, also, that they had executed 
conveyances to each other, which had not been recorded. On 
the 17th June, 1879, after the sale under the mortgage, the 
complainants brought an action of ejectment for the lands 
against the said James McHan, who was then in possession ; 
but they were defeated in that action, because, as they alleged, 
they could not prove that the legal title to the lands was in said 
Conant at the time of the execution of the mortgage. The 
bill then alleged and charged a fraudulent cancellation of the 
contract of exchange by and between tiie defendants, and the 
concealment or destruction of the conveyances which they had 
executed to each other. These allegations are copied in the 
opinion of the court. The prayer of the bill was, "that the 
legal title to said lands be devested out of said defendants, or 
either of them, and that compla'inants be invested with the 
same; that the sale made by cojnplainants under said mortgage 
be in all things confirmed, or, if agreeable to the desire of the 
said Conant, a resale be made under the order and decree of 
the court, and complainants be put in possession of the lands; 
that it be referred to the register to take and state an account 
of the annual value of the rents of said lands since the sale 
under said mortgage, and the said McHan be required to ac- 
count to complainants for the same;" and for other and further 
relief. 

The defendants moved to dismiss the bill, as amended, for 
want of equity ; and the decree overruling that motion is now 
assigned as error. 

Vol. lxxvi. 



1884.] OF ALABAMA. 349 

[McHan v. Ordway, Dudley & McGuire.] 

C. F. IlAMrLL, for appellants. — The prayer for discovery 
having been struck out by amendment, the bill can only be 
maintained as asking relief in one of two aspects : Ist, as a 
bill by the mortgagor, having purchased at his own sale, to have 
the sale either confirmed or set aside ; 2d, as a l>ill for relief 
against fraud. In the former aspect, it is without ecjuity, i)e- 
cause, on the facts stated, the moi'tgagor has never objected to 
the sale, and he is now barred by his own laches from setting it 
aside. Robinson v. Cullom. cfc Co., 41 Ala. 693 ; McLean v. 
Presley^ 56 Ala. 211 ; Harris v. Miller, 71 Ala. 26. As seek- 
ing relief on the ground of fraud, if the allegations are sutti- 
ciently specific, they do not impart equity to the bill, but show 
that the con)plainants have a full, complete and adequate 
remedy at law. — 1 Story's Equity, i}§ 72 to 74 «, inclusive ; 
Story's Eq. PI. §§ 473, 476, 478 ; Insurance Co. v. Webb, 54 
Ala. 697 ; Dickinson v. Lewis, Garthwaiie (& Co., 34 Ala. 
638 ; cases cited in 1st Brick. Digest, <om, § 386. 

WArrs & Son, and C. C. Wxmui^, contra. — The complainants 
had an undoubted right to come into equity, asking to have the 
sale confirmed, and their title as purchasers established ; or, if 
it was repudiated by Conant, to have their mortgage foreclosed. 
McLean v. I^resl^y, 56 Ala. 211 ; McGeheev. Lehman, Durr 
cfe Co., 65 Ala. 316 ; Harris v. Miller, 7 \ Ala. 26 ; Yarborongh 
V. Avant, 66 Ala. 526. The alleged fraudulent concealment, 
cancellation or destruction of the unrecorded conveyances, 
gives additional e<]uity to the bill. The mortgage having been 
duly recorded, as shown by the exhibit to the bill, McHan was 
chargeable with notice of the complainants' rights under it, and 
could acquire no right or title from Conant which would over- 
ride theirs ; while the destruction or cancellation of the deeds 
prevented the complainants from establishing the legal title at 
law. 

STONE, C. J. — If the complainants have shown any right 
to recover the land sued for, it may be conceded they could 
come into equity, and have their title perfected. Purchasing, 
as they did, at their own sale, they did not, by such purchase, 
acquire any legal title beyond what they held under their mort- 
gage. True, they were bound by their purchase, and could not, 
by any proceeding instituted by them, be heard to disaftirni it. 
They bound themselves, but did not bind the mortgagor, if he 
seasonably moved to have the sale disafhrmed, and to be let in 
to redeem. — Garland v. Watson, 74 Ala. 323. It may also be 
conceded, that Conant had slumbered too long, to be allowed to 
disaffirm and redeem. Still, complainants are without a perfect 
title ; and, as we have said, if there is no other obstacle in the 



350 SUPREME COURT [Dec. Term, 

[McHan v. Ordway, Dudley & McGuire.] 

way, they may come into equity, and have all the equities of 
Conant converted into a legal title in them ; and, inasmuch as 
they are the actors praying relief, it was their privilege, if not 
their duty, to offer to the mortgagor the option of having the 
lands resold. — MoLsan v. Presley, r.6 Ala. 211 ; McGehee v. 
Zehrnan, 65 Ala. 316 ; Yarhorough v. Avant, 6G Ala. 526 ; 
Harris v. Miller, 71 Ala. 26. 

In February, 1878, Conant, by mortgage, conveyed the lands 
in controversy to complainants, as security for the payment of 
his note under seal, for the sum of twelve hundred and seventy 
dollars. McHan, after the mortgage sale, being in possession 
of the lands, was sued by complainants for their recovery, in a 
statutory real action. There was verdict and judgment for de- 
fendant. One verdict and judgment, in such action, are not 
conclusive. — Code of 1876, § 2969 ; Jo7ies v. DeGrqf^enreid, 
60 Ala. 145. The present bill was filed by Ordway, Dudley 
and McGuire, who had failed in tlie ejectment suit, and Co- 
nant and McHan were made defendants. The bill avers that, 
when the mortgage was made, Conant was in possession of the 
lands. It then avers that the lands had belonged to McHan, 
but that before the mortgage was made, Conant and McHan 
had exchanged lands, and Conant had become the owner of the 
lands in suit, in exchange for other lands which had previously 
belonged to him ; and that he, Conant, had at least acquired 
"a perfect equity; the said James McHan, to whom they pre- 
viously belonged, having received a full, valuable, adequate, 
and all the consideration for the same agreed upon between him 
and the said Conant." The bill then charges, " that at tlie time 
of the exchange of lands between the said Conant and McHan, 
as above set forth, and previous to the execution of said mort- 
gage of date 13th February, 1878, the said McHan had made a 
deed to said Conant, to the said lands embraced in the said 
mortgage, conveying to him the full legal title, and at the same 
tinie the said Conant conveyed by deed to McHan the lands 
near Huntsville, which he had previously owned ; . . . that 
since the execution of said mortgage by the said Conant to 
complainants, the defendants have fraudulently cancelled the 
trade which they had previously made by an exchange of lands, 
and have fraudulently withheld said deeds from record, which 
they had executed the one to the other in said exchange of 
lands, and now have said deeds in their possession, or under 
tiieir control, or iiave destroyed the same, and, by such false 
and fraudulent conduct, are trying to defeat complainants from 
recovering the possession of said lands." We have now copied 
all of said bill, material to the question we propose to consider. 

The allegations of fraud are wholly insufficient. — Flewellen 
V. Crane, 58 Ala. 627 ; Flckeit v. Pijjkin, 64 Ala. 520. The 

Vol. lxxvi. 



1884.J OF ALABAMA. 351 

[Shakespeare v. Alba.] 

facts should have been averred, co?istitutin(j the fraud ; enoujrh 
facts to show a case of fraud against some right of coinphiiiiant, 
set forth in tlie pleadings. It is not averred nor shown that 
McIIan, before the alleged re-exchange and suppression or can- 
cellation of the deeds, had notice, actual or constructive, of the 
mortgage to complainants. And, if this be not the particular 
ground of fraud invoked, no other requisite facts are set forth, 
— such as, that the re-exchange was simulated, and the mort- 
gage property held by McHan in secret trust for Conant. 

The bill, in other respects, is subject to criticism. The note 
and mortgage are averred to be given to secure thirteen hundred 
and seventy dollars. The exhibits show them to be for twelve 
hundred and seventy dollars. The bill, in une place, avers that 
Conant's title was a " perfect equity." If this be so, then com- 
plainants were without remedy as to any part of their claim, 
save in equity. In another place, it is averred that Conant had 
a legal title. These apparently repugnant averments ought to 
be so modified, as to leave them in harmony. 

It is possible the bill can be so amended as to give it equity, 
and, to that end, we will leave it for the chancellor to j)as8 on 
any motion to amend the complainants may make. In cases 
circumstanced as this is, we deem it the better practice to make 
no order of dismissal in this court. 

Reversed and remanded. 



Shakespeare v. Alba. 

Bill in Eqtiity for Specific Performance of Agreement for 

Lease. 

1. Statute of frauds ; agreement for lease ; part performance. — A verbal 
agreement to make a lease for the term of five years is within the statute 
of frauds (Code, § 2121, subd. 5) ; but, if possession is delivered under the 
contract, and installments of rent are paid and accepted, the case is, by 
the express words of the statute, taken out of its influence and opera- 
tion. 

2. Waiver of statute, as defense to hill for specific performance. — The 
statute of frauds, as a defense to a bill for the sjjecific performance of a 
contract, is waived, unless specially pleaded ; an<l the contract being ad- 
mitted, or satisfactorily proved, it will be enforced, although it may be 
obnoxious to the statute. 

3. When assignee of lessor can not plead statute. — When the lessor 
waives the benefit of the statute of frauds as a defense, by failing to 
plead it, a purchaser of the estate subject to the lease, becoming assignee 
of the uncollected rents, can not set up the statute in defense oi a bill for 
specific performance of the agreement. 

4. Agreement not to be performed within one year. — An agreement 



352 SUPREME COURT [Dec. Term, 

[Shakespeare v. Alba.] 

which is capable of performance within one year is not " an agreement 
which, by its terms; is not to be performed within one year from the 
making thereof " (Code, § 2121, subd. 1) ; and an agreement to make a 
lease for five years, or for any term of years, is not within this clause of 
the statute. 

5. Parties to hill ; assignor and assignee. — When the lessee has as- 
signed unconditionally his interest in the lease, he would still be a proper 
party to a bill filed by his assignee to comjiel a specific execution of the 
agreement to make a lease ; but, the validity of the assignment not be- 
ing assailed, and the lessor not alleging the insolvency of the assignee, nor 
otherwise showing the necessity of bringing in the lessee as a party, he 
is not a necessary party. 

Appeal from the Cbancery Court of Jefferson. 

Heard before the Hon. Thomas Cobbs. 

The bill in this case was Hied on the 2d November, 1883, by 
Peter F. Alba, in the name of himself and one Carmelick 
(whose name was afterwards struck out by amendment), against 
J. A. Shakespeare, J. M. Lewis, John T. Hardie, and the Elyton 
Land Companj', a private corporation ; and sought to enforce 
the specific execution, by said corporation, of an agreement to 
lease certain real estate in Birmingham, for the term of five 
years, to one W. F. Orr. The lease, according to the original 
agreement, as averred in the bill, was to commence on the 14th 
December, 1881, and continue for the term of live years, at an 
annual rent of $200, payai)le monthly ; but, by a new agree- 
ment, made in March, 1882, another lot was included, at an 
additional rent of $50, payable monthly as the first; and the 
lessee was to have the privilege of erecting buildings and other 
improvements, and of removing them. The bill alleged, also, 
that said Orr was placed in possession of the premises under 
this contract, paid the monthly rent as stipulated, and erected 
a brick stable and other improvements, at a cost of over $2,000, 
and continued in possession until some time in July, 1882, 
when he sold and conveyed his interest in the lease and the 
premises to Mrs. Sallie E. Stokes, and placed her in possession ; 
that Mrs. Stokes continued in possession, paying the monthly rent 
as stipulated, until the 27th September, 1883, when she sold and 
conveyed to the complainant, and placed him in possession of 
tlie premises; that on the 29th September, 1883, complainant 
made a tender to the agent of said corporation of tlie amount 
then due for rent, which offer and tender was refused by said 
agent, because the corporation had sold the property to said 
Shakespeare, Lewis and Hardie ; that said purchasers " bought 
said property with full notice and knowledge of said agreen)ent 
of lease," but repudiate it, and have made a written demand of 
possession, and threaten to bring suit. 

An answer to the bill was filed by the Elyton Land Company, 
in which the making of the alleged agreement, the delivery of 

Vol. 1 XXVI. 



1884.] OF ALABAMA. 353 

[Shakespeare v. Alba.] 

possession under it, and the payment of tlie rent were ad- 
mitted ; and the answer then added : " But this respondent 
avers, in addition, that said agreement of lease was not in 
writing, and no inemoranduin thereof was reduced to writing, 
except tlie memorandum of the president, entered in pencil on 
the books of the company about the time, a copy of which is 
hereto attached as a part of this answer. Moreover, the sale 
by this respondent, of the real estate named in the bill, to said 
Shakespeare, Ilardie and Lewis, was made subject to the lease 
agreement with Orr, and to the carrying out by them of the 
terms and conditions of the Orr lease, at the same time invest- 
ing them with a right to have and collect the rents under said 
lease, accrued and thereafter accruing. Respondent has re- 
ceived from said Shakespeare and others, said purchasers, the 
whole of the purchase-money for said real estate, and is ready 
to make conveyance to them, subject to their carrying out said 
Orr contract of lease as fully as respondent was thereby l)ound 
to do. As this respondent does not know the truth of the 
other statements contained in said bill, the same are required 
to be proved." 

A joint and several answer to the bill was also filed by the 
other defendants, in which they denied the making of the al- 
leged agreement, denied all knowledge or notice of it on their 
part, and insisted that, if made, it was void under the statute of 
frauds; and they incorporated in their answer a demurrer to 
the bill, specifically assigning eighteen causes or grounds of de- 
murrer. The principal causes of demurrer so assigned were : 
Ist, want of equity ; 2d, the statute of frauds ; 3d, the failure to 
make Orr a party to the bill. The bill was afterwards amended, 
by consent, by adding averments the same in substance as the 
allegations contained in the answer of the Elyton Laud Com- 
pany, as above copied. 

The cause being submitted for decree on the demurrer, the 
chancellor overruled it on all the grounds specially assigned ; 
and his decree, from which this appeal was taken, is now assigned 
as error. 

Smith &; Bkadford, for appellants. — Originally, terms for 
years were created without writing. — Browne on Stat. Frauds, 
§§ 6, 7. If this contract is not within the statute of frauds, 
then the verbal agreement is as valid and effectual as if re- 
duced to writing, and there is no necessity for a specific per- 
formance. — Fitzpatrick v. Featherstone, 3 Ala. 40. J^ut leases 
are within the statute, and are void unless reduced to writing, 
when they are not to be performed within one year. — Cromme- 
lin V. Theiss, 31 Ala. 412 ; Treadway v. Smithy 56 Ala. 345 ; 
Derrick v. Brown, 66 Ala. 166; NeUm v. Wehb, 54 Ala. 436; 
23 



354 SUPREME COURT [Dec. Term, 

[Shakespeare v. Alba.] 

Hefiin v. Milton^ 69 Ala. 356. If an agreeinent is within the 
statute, no part performance can justify a court of equity in 
decreeing its specific execution. — Heflin v. Milton^ 69 Ala. 
356 ; Flinn v. Barbei\ 64 Ala. 199. A lessee remains liable 
on his express agreement to pay rent, notwithstanding he may 
have assigned his lease, with the assent of the lessor, and the 
latter has accepted rent from the assignee. — Lodge v. White^ '^0 
Ohio, 569; 27 Amer. Rep. 492; 2 Piatt on Leases, 355; 
Washb. Real Property, 493, 4th ed. To grant the relief 
prayed in this case, would be to substitute one debtor for 
another, which a court of equity has no power to compel a 
party to accept. — 1 Piatt on Leases, 629 ; Parsons Contr. 577, 
note a. 

E. L. Clarkson, and Hewitt & Walker, contra^ cited 
Eaton V. Whitaker, 18 Conn. 222, or 41 Amer. Dec. 586; 2 
Story's Equity, §§ 759, 761, 763, 771 ; Taylor's Land. & Tenant, 
§§ 32, 49 ; Brewer v. Brewer (& Logan^ 19 Ala. 481 ; Morgan 
V. Morgan, 3 Stew. 383 ; Ilaj/s v. Hall, 4 Porter, 374 ; Barrell 
V. Hanriek, 42 Ala. 60; Mo Morris v. Qraioford, 15 Ala. 271 ; 
Seaman v. Aschertnan, 51 Wise. 678, or 37 Amer. Rep. 849 ; 
4 Kent's Com. 451 ; Add. Contr. § 497; Adams' Equity, § 86, 
note 1 ; Broch v. Cook, 3 Porter, 464 ; 47 Cal. 138 ; 9 Texas, 
385 ; 19 K J. Eq. 102 ; 14 Geo. 683; 21 Ark. 110 ; 1 Pars. 
Sel. Cases, 422. 

SOMERYILLE, J.— The bill is one filed for the specific 
enforcement of a verbal contract to make a lease for a term of 
five years. It is brought by the complainant, Alba, as assignee 
of the leasehold estate, against the Ely ton Land Company and 
the other appellants, who claim by privity of estate from this 
corporate company. 

It is insisted tha