plant were in proper condition;" or, second, that such defect "had not been discovered or [and] remedied, owing to the negligence of the master or employer, or of some person in the service of the master or employer, and intrusted by him with the duty," etc. There was no demurrer to the complaint, and hence we need not consider its sufficiency as a mere statutory remedy. Should the question be raised, it would probably be safest to aver that the injury complained of was suffered from one of the causes or acts of negligence stated last abové, and as nearly as may be in the language of the statute. We decide nothing, however, in reference to this question, as it is not raised. As we have said, the only question raised is whether it was necessary for plaintiff to prove that the defendant corporation had knowledge or notice that the brake appliances were imperfect, or out of repair. If the only averment had been that the defendant had negligently and knowingly permitted them to remain out of repair, whereby, etc., then, probably, the principle invoked would apply, that, having averred with unnecessary particularity, it thereby became a matter of description, and must be proved with equal particularity. 1 Greenl. Ev. § 63; Railroad Co. v. Dickson, 88 Ill. 431; Railroad Co. v. Johnston, 79 Ala. 436. As we interpret the statement of the gravamen of the complaint it is not made up of one continuous, single ground, but contains several grounds, one following another, which may and should be construed distributively. Thus, the language may be divided into the following separate phrases: 'Caused by the negligence of the defendant in failing to provide good and safe brakes, and appliances connected and used therewith." If the complaint had stopped here, it would have been manifestly good, at least, in the absence of a demurrer. So framed, the question of knowledge of the imperfect condition of the brake and its appliances would not have been raised. Then follows another averment of the cause of the injury, sufficient in and of itself, connected with the former by the conjunction “and,” and thus showing that it was an additional, or cumulative, charge or averment. Its language is, "and by the defendant negligently and carelessly omitting to keep its brakes on said train in good repair.' Then follow the words, "and knowingly allowing the same to remain out of repair." The word "knowingly" would seem to qualify only the second clause of the complaint or grievance charged. It cannot be made to qualify the phrase first copied and commented on above. We regard each of the averments as sufficient in and of itself, at least when issue was taken upon them, and that the second, instead of being a qualification of the first, is a substantive, cumu. lative ground of alleged wrong. Shipman v. Furniss, 69 Ala. 555, 563. What we have said disposes of this case adversely to appellants. None of the charges asked should have been given.

Affirmed.

JONES et al. v. ROPER.

(Supreme Court of Alabama. February 11, 1889.)

HOMESTEAD-CONVEYANCE-MARRIED WOMAN.

In a conveyance of homestead executed prior to act Ala. April 23, 1873, (Code 1886, § 2508,) requiring the signature and separate examination of the wife in conveyances of the homestead, it is sufficient that the wife voluntarily signed the deed, and that it was attested and probated in the form prescribed by statute for ordinary conveyances, without any separate examination of the wife.

Appeal from circuit court, Butler county; JOHN P. HUBBARD, Judge. This was an action of ejectment brought by Annie Roper against Sumpter Jones et al. The evidence tended to show that one Jerry Roper, plaintiff's husband, had purchased the land in controversy in 1868, and remained in possession thereof until 1877. He mortgaged it to W. W. Wilkinson April 5,

1873, his wife joining in the conveyance, but she was not examined separate and apart from the husband respecting her voluntary signature and assent. The mortgage was witnessed by two witnesses, and the signature of the mortgagors was properly certified to before a notary public by one of the subscribing witnesses. Under this mortgage the mortgagors surrendered possession to the mortgagee, Wilkinson, in 1877. He went into possession, and sold the lands to one Kennedy; and by mesne conveyances the title came to defendants. Defendants introduced other mortgages from Jerry Roper and others to W. W. Wilkinson, in which the land in controversy was included. These mortgages were certified as the one made by Jerry Roper and Annie Roper to Wilkinson in 1873, without the wife having acknowledged her voluntary signature separate and apart from the husband, but certified to by one of the subscribing witnesses. On the defendants offering to introduce two of these mortgages covering the lands in controversy, and dated March 27, 1869, and April 6, 1871, plaintiff objected, on the ground that the mortgages were not self-proving, and that the certificate in each case was not such as authorized the instrument to be introduced in evidence, without further proof being given of its authenticity. The court sustained the objection, and excluded the mortgages.

The court, upon this evidence, charged the jury that, if they believed the evidence, they should find for plaintiff for 80 acres of the lands, being that part of the 200 acres sued for on which was situated the homestead of Jerry Roper on April 5, 1873. The defendants excepted to the giving of this charge, and asked the court in writing to give the following charge: "If the jury believe the evidence, they must find for the defendants." The court refused to give this charge, and the defendants thereupon excepted. The defendants appeal, and assign the rulings of the court on the evidence, and the giving of the affirmative charge for the plaintiff, and the refusal of the court to give the affirmative charge for the defendants, as error.

John Gamble and J. C. Richardson, for appellants. J. F. Stalling, for appellee.

SOMERVILLE, J. The defendants are shown to hold the land for the recovery of which the suit is brought by privity of title with Wilkinson. If Wilkinson, therefore, could not have been ejected by reason of the superiority of his title, neither can the defendants. Wilkinson's title was clearly good against the plaintiff by virtue of the mortgage executed to him by the plaintiff and her deceased husband, Jerry Roper, bearing date April 5, 1873, and duly attested and probated. The mortgage being executed prior to the statute of April 23, 1873, and the wife having joined in the execution of the conveyance, and it being attested and probated in the form prescribed by statute for ordinary conveyances, the requirements of the constitution of 1868 were fully satisfied as to the wife's voluntary signature and assent to the alienation of the homestead. The mortgage, therefore, conveyed the land upon which the homestead was situated without any examination of the wife separate and apart from her husband, certified to as required by the act of April 23, 1873. Code 1876, § 2822; Code 1886, § 2508, and cases there cited; Cahall v. Association, 61 Ala. 232; Miller v. Marx, 55 Ala. 322; Lyons v. Connor, 57 Ala. 181; 3 Brick. Dig. p. 497, § 113, and cases cited. A mortgagor cannot recover in ejectment against a mortgagee who is in adverse possession after the law-day of the mortgage. No more can one who claims under the mortgagor recover against one holding by privity of title with the mortgagee, unless the conveyance is void.

Conceding that the other mortgages sought to be introduced in evidence by the defendants were properly ruled out, the defendants were nevertheless entitled to a recovery under the title conveyed to Wilkinson by the mortgage of Roper and wife, executed April 5, 1873.

The court erred in giving the general affirmative charge to find for the plaintiffs if the jury believed the evidence. The defendants would have been entitled to such a charge had it been properly requested. Reversed and remanded.

MCNEILL et al. v. KYLE.

(Supreme Court of Alabama. February 20, 1889.)

1. APPEAL-ASSIGNMENT OF ERRORS.

An appeal from a judgment will not be considered, where no errors are assigned. 2. SAME-IN ATTACHMENT.

A defendant in attachment proceedings, in which judgment has been rendered in favor of plaintiff, cannot appeal from a judgment in a suit instituted by an intervening claimant.

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.
Parks & Son, for appellant.

CLOPTON, J. On December 30, 1886, an attachment was sued out by appellees against the estate of appellant, on an indebtedness claimed to be due. Judgment was rendered in the attachment suit, November 10, 1888, in favor of the plaintiffs in attachment. The attachment was levied on goods and merchandise, to which a claim was interposed by C. M. Gardner & Co., to whom the property was delivered on the execution of a claim-bond. On November 10, 1888, the claimants having declined to further prosecute, and having withdrawn their claim, judgment was rendered that the property was liable to the attachment. On the same day, it being made to appear to the court that the defendant in attachment had filed with the officer levying the attachment a claim of exemption to a portion of the property, and that, no contest of the claim having been inaugurated, the sheriff had discharged the levy on such property, the court made an order discharging the levy as to the property claimed as exempt. The record shows that the appeal is taken from the judgment in the attachment suit, but, by agreement of counsel, it is to be considered and treated as an appeal from another and different judgment. We do not wish to be understood as recognizing that agreement of counsel can give this court jurisdiction of an appeal not taken as provided by the statute. Consent cannot give jurisdiction of the subject-matter. This, however, is immaterial in the present case. If the appeal is taken from the judgment in the attachment suit, as shown by the record, the judgment must be affirmed, because no errors relating to it are assigned. If the appeal should be regarded as taken from the judgment in the claim suit, as to which errors are assigned, it must be dismissed. The appellant is not a party to such judgment, has no right to appeal therefrom, and can complain of no errors intervening in the claim proceedings or judgment. Whether the appeal be taken from the one judgment or the other, the result is the same. Affirmed.

LUNSFORD v. DEITRICH.

(Supreme Court of Alabama. February 18, 1889.)

1. APPEAL-REVIEW-PRESUMPTIONS.

Proof of identity of the affidavit, warrant of arrest, and docket in a criminal prosecution used in evidence in a subsequent action for malicious prosecution, will be presumed to have been made where nothing to the contrary appears in the bill of exceptions and want of such proof is not specified as a ground of objection. 2. MALICIOUS PROSECUTION-EVIDENCE-CUSTOM AND USAGE.

Plaintiff, an architect, when prosecuted at the instance of defendant, for larceny from the latter of plans for a building, could show, in an action for malicious pros

ecution, that the property of the drawings was in him by a universal custom, and that the builder was entitled to them only during the time of construction; and that defendant had erected buildings by such plans.

3. SAME-MALICE-WANT OF PROBABLE CAUSE.

The inference of malice drawn from want of probable cause may be rebutted by proof that the prosecutor, though not able to show probable cause, instituted the prosecution under an honest belief that plaintiff was guilty of the offense charged; provided such belief is founded on facts and circumstances, which would produce in the mind of a reasonable and prudent man such serious suspicion of plaintiff's guilt as to repel the idea that the prosecutor was actuated by malice.

4. TRESPASS-WHAT CONSTITUTES.

The court improperly refused to instruct that if, after an unconditional delivery of the drawings by plaintiff to defendant under the contract of employment, plaintiff, before a completion of the building, and while the drawings were in defendant's possession, took and carried them away without his consent, he thereby committed a trespass.

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by Carl Deitrich against George Lunsford for malicious prosecution. Judgment for plaintiff, and defendant appeals.

Ward & Head, for appellant. R. H. Pearson, for respondent.

CLOPTON, J. Appellant instituted a criminal prosecution against appellee, by causing a warrant for his arrest to be issued by a justice of the peace, on the charge of larceny of the drawings for a building. The criminal proceedings having been terminated and appellee discharged, he brings the action for malicious prosecution. For the purpose of proving that the prosecution was instituted by the defendant, and its termination, the original affidavit made by him, the warrant of arrest, and the docket of the justice, were introduced in evidence against the objection of the defendant. The ground of objection is that the original papers and docket are not self-proving instruments, and should be authenticated by the certificate of the magistrate. It may be conceded that the original papers and docket are not self-proving, and must be sustained by proof of identity. The docket was identified, and that such proof in respect to the affidavit and warrant was made is presumable from the bill of exceptions, especially as the want of proof of identity is not specified as a ground of objection. Section 3319 of Code 1886, which makes a statement of any judgment rendered by a justice of the peace, made and certified by him or by his successor in possession of his docket, presumptive evidence of the fact, has been construed as having reference only to judgments in civil cases. In the absence of a statute, a certified transcript of the papers and judgment of a court, not a court of record, is not legal evidence. The proceedings in such courts must be proved by the production of the original papers and docket, accompanied by proper proof of identity and verity, or by sworn copies. Also, in civil causes, section 3319 is merely cumulative, and does not abrogate the former mode of proof. Burns v. Campbell, 71 Ala. 271; Blackman v. Dowling, 57 Ala. 78.

In support of the issue of want of probable cause, it was competent for the plaintiff to prove that the property of the drawings was in him; for it is an essential element of larceny that the goods taken belong to some person other than the taker. For this purpose it was permissible for the plaintiff to prove a universal custom that the drawings for a structure remain the property of the architect, and that the builder is only entitled to the use of them during the time of the construction, to be returned when the building is completed, and also that the defendant had erected buildings by plans and specifications drawn by architects, in order to trace knowledge of the custom to him. But, though the plaintiff may have been the general owner of the drawings, the defendant might also have had a special property in them, and the plaintiff be guilty of larceny if he fraudulently and clandestinely took them from the possession of the defendant, with a felonious intent to convert them to his

own use, or to deprive defendant of his ownership. Under the custom, as proved by plaintiff, the defendant was entitled to the use and possession of the drawings during the time the building was in course of construction, and this vested in him a special property.

Larceny ordinarily includes a trespass. Every direct and forcible invasion of another's right, which causes injury to his possession, any interference with the goods of another by taking them from the possession of the owner without his consent, and without excuse or justification, is a trespass. An interference by the general owner with goods in the possession of one who has a special property and right of possession is an injury to such possession, and having the general property is not an excuse or justification. A bailor may commit a trespass by taking goods from the possession of his bailee. A landlord may wrongfully invade the possession of his tenant. If, after an unconditional delivery of the drawings by the architect to the defendant under the contract of employment, the plaintiff, before the completion of the building, and while they were in the possession of the defendant, took and carried them away without his consent, he thereby committed a trespass, and the court should have so instructed the jury at the request of the defendant. The plaintiff, however, may have been a trespasser, and yet not have committed the offense of larceny. To constitute the offense, the wrongful act must be secret or fraudulent, and done with felonious intent to convert the property to the taker's own use, or to deprive the owner of his property. If done openly, in the presence of the owner, or of other persons known to him, the taking and carrying away of the drawings is a mere civil tort. Johnson v. State, 73 Ala. 523.

To maintain an action for a malicious prosecution, two essential elements must concur,-malice and a want of probable cause. The inference of malice may be drawn from a want of probable cause; but such inference is subject to be rebutted by proof that the prosecutor, though not able to show probable cause, instituted the prosecution under an honest belief that the plaintiff was guilty of the offense charged; provided such belief is founded on facts and circumstances which would produce in the mind of a reasonable and prudent man such serious suspicion of the plaintiff's guilt as to repel the idea that the prosecutor was actuated by malice. Such is the settled rule. Long v. Rodgers, 19 Ala. 326; Ewing v. Sanford, 21 Ala. 157; McLeod v. McLeod, 73 Ala. 42. We discover no error in the charge of the court relating to the measure of damages.

Reversed and remanded.

COLUMBUS & W. Ry. Co. v. Wood.

(Supreme Court of Alabama. February 18, 1889.)

1. RAILROAD COMP NIES-INJURY TO PERSONS ON TRACK.

Plaintiff's intestate was lying drunk outside of defendant's railroad track, at right angles therewith, and with his head between the ends of two ties in a depression, so that an approaching engineer could only see part of the body, and could not tell that it was a human being till he should lift his head. When defendant's train was so near that it could not stop before striking him, he raised his head and was killed. Had he not raised his head he would not have been injured. Held, that plaintiff could not recover of the railroad company.

2. TRIAL-INSTRUCTIONS.

Where defendant sets up a particular defense, and plaintiff, without questioning its legal sufficiency, takes issue on it, and the proof fully sustains the defense, defendant is entitled to a general charge in his favor.

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge. Action by F. A. Wood, as administratrix, against the Columbus & Western Railway Company for damages for the death of plaintiff's intestate. Judgment for plaintiff, and defendant appeals.