The testimony of the other witnesses on the part of the defendant tended to show that he did not have a pistol at the time charged. On this state of the evidence the defendant requested the court to instruct the jury that, if the evidence of the state consists in the statements of a witness, the truth of which the jury have a reasonable doubt, they cannot convict on such evidence, although they may not believe the testimony of defendant's witness. In a criminal case, a prima facie case of guilt does not generally rebut the presumption of innocence, or shift the burden of proof. Until the state proves, in the first instance, beyond a reasonable doubt, the facts which constitute the offense, the accused is not required to establish his innocence by exculpatory evidence. The jury are not authorized to find the defendant guilty on the evidence of a single witness, upon whose testimony the question of guilt depends, if they have a reasonable doubt of the truth of his statements. Washington v. State, 58 Ala. 355. The evidence on the part of the defendant being wholly exculpatory, the effect of refusing the charge is to shift the burden of proof, on a prima facie case of guilt being made by the prosecution. This is the only error we discover in the record. Reversed and remanded.

BODIFIELD v. STATE.

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

1. ADULTERY-Evidence.

On a trial for living in adultery, under Code Ala. 1886, § 4012, the jury were properly instructed that occasional acts of adultery do not make out the offense; but if there was adulterous intercourse, and such a condition of the minds of the parties that, when opportunity offered, the act would be repeated, defendant was guilty; and that this condition makes a living in adultery.

2. SAME-INSTRUCTIONS.

They were also properly instructed that they might look to any evidence of the conduct of defendant and his alleged paramour, showing that they had sexual intercourse, or lived together in adultery in 1885 or 1886, to explain their conduct during the time covered by the indictment, viz., from September 29, 1886, to September 29, 1887.

Appeal from circuit court, Coffee county; J. M. CARMICHAEL, Judge.

The indictment in this case charged that the defendant, William Bodifield, and Fanny Caldwell did live together in a state of adultery or fornication. On the trial of the said Bodifield he reserved exceptions to each of the following charges, which were given by the court to the jury: (1) "Occasional acts of adultery between parties do not make out the offense of adultery within the the meaning of the law; but if there had been an act of adulterous intercourse between them, and there was a state or condition of their minds to the effect that, when the opportunity offered, the act would be repeated, and afterwards, in pursuance of such condition of their minds, they repeated the act occasionally, then the defendant would be guilty." (2) "If the defendant, within twelve months before the finding of the indictment, and in this county, had sexual intercourse with Fanny Caldwell, and their minds assented or consented together that they would repeat the intercourse when opportunity offered, then the defendant is guilty as charged. This state or condition makes a living in adultery." (3) "The jury can look to any evidence of the conduct of the defendant and Fanny Caldwell, showing that they had sexual intercourse, or lived together in adultery in 1885 or 1886, to explain their conduct during the time covered by the indictment, namely, from September 29, 1886, to September 29, 1887."

J. D. Gardner, for appellant. T. N. McClellan, Atty. Gen., for the State.

STONE, C. J. To constitute a living in adultery within the statute (Code 1886, § 4012,) a single or occasional act, without more, is not sufficient.

There must be continuation, or an agreement for continuation, coupled with one or more acts, before it can be affirmed that the relation is established. It is a crime of darkness and secrecy, and hence always difficult of direct proof. On this account it is held that when acts and complicating circumstances are proved, it becomes largely a question for the jury to determine whether there was in fact such continuation as amounted to a living together, or, what is equivalent to it, a mutual, guilty consent, express or implied, for such continuation. And the parties need not occupy the same dwelling, if there was a mutual expectation and understanding that the relation was to be kept up, or if in fact it was so kept up as to satisfy the jury beyond a reasonable doubt (or its equivalent, to a moral certainty) that there must have been such understanding.

As the antithesis of this, however, a single act, or occasional acts, not indicating a consentive or prearranged continuation of the illicit conduct, would not be a living together within the meaning of the statute. Collins v. State, 14 Ala. 608; Quartemas v. State, 48 Ala. 269; Hall v. State, 53 Ala. 463; Clarke, Man. Crim. Pr. § 1546; State v. Crowley, 13 Ala. 172.

The proof of adulterous cohabitation within 12 months before the indictment was found was not very full; but, considered in connection with their proven, previous conduct, it was sufficient to authorize its submission to the jury.

There was a separate exception reserved to three charges given at the instance of the state. The circuit court in each of these rulings stated the law correctly, as we have declared it above. Affirmed.

CLARK v. DUNHAM LUMBER CO.

(Supreme Court of Alabama. February 21, 1889.)

1. STATUTE OF FRAUDS-REPRESENTATIONS AS TO CHARACTER.

In an action based on false representation made by defendant as to the credit and business of a lumber company of which defendant was president, by which representation credit was given to said company by plaintiff, the representation was that the company had already negotiated for the sale of such large quantities of lumber that it was unable to fill these sales without obtaining lumber from other mills, and that the lumber proposed to be purchased from plaintiff would be appropriated to filling these sales. Held, that this representation was within the purview of Code Ala. 1886, § 1734, providing that no action can be maintained to charge any person by reason of any representation concerning the character, ability, or trade of any other person, when such action is brought by the person to whom such representation was made, unless the same was in writing, signed by the party sought to be charged.

2. SAME-REPRESENTATIONS FRAUDULENTLY MADE.

This rule has no application where the representations were fraudulently made, but plaintiff's complaint was demurrable in not alleging that defendant knew that his representations at the time were untrue.

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD, Judge. This action was brought by the Dunham Lumber Company against H. W. Clark, for damages on account of defendant's alleged false representations, whereby plaintiff was induced to sell, and did sell, on credit, to the Wetumpka Lumber Company, a private corporation, of which the defendant was president, a large quantity of lumber, which had never been paid for, and which was wholly lost to plaintiff; said Wetumpka Lumber Company being insolvent. Defendant demurred to the complaint, assigning 12 grounds of demurrer, among which were "(11) that it is not alleged that defendant knew that any alleged fact which he represented to be true was at the time untrue; (12) that said alleged misrepresentation does not constitute a fraud in law.” The demurrer was overruled. On the trial the defendant requested the court to give the following charges in writing, and duly excepted to the refusal of

each: "(1) If the jury believe from the evidence that Clark believed what was stated was true, then, though the statement was false in fact, plaintiff' cannot recover. (2) Though the jury may believe that the Wetumpka Lumber Company was in fact insolvent, yet, if they believe that Clark, when he made the statements, believed them to be true, then the plaintiff cannot recover. (3) If the jury believe from the evidence that the statements made by Clark were true, or that Clark believed them to be true, then the plaintiff cannot recover. (4) Though the jury may believe that the Wetumpka Lumber Company was insolvent, yet, unless they are satisfied that it was in fact insolvent, and that Clark knew it was insolvent, and misrepresented its condition to plaintiff, then plaintiff cannot recover." The several rulings of the court to which exceptions were reserved are here assigned as error. Tompkins, London & Troy, for appellant. Roquemore, White & Long, for appellee.

SOMERVILLE, J. The action is one based on an alleged false representa tion made by defendant as to the credit and business of the Wetumpka Lumber Company, a corporation of which the defendant was president, by which representation credit was given to said company by the plaintiff, resulting in the loss of certain goods sold. The substance of the alleged representation is that the Wetumpka Lumber Company had already negotiated for the sale of such large quantities of lumber that it was unable to fill these sales, thus contracted to be filled, without obtaining lumber from other mills, and that the lumber proposed to be purchased from plaintiff would be appropriated to filling these sales. It is alleged that this representation was false; that the company of which the defendant was president did in fact consign the lumber thus purchased to lumber brokers, to be sold on its account, in pursuance of a previous intention to do so, which intention was known to defendant. The insolvency of the defendant corporation is also alleged.

This representation is one relating to the conduct, ability, trade, or dealings of the Wetumpka Lumber Company, within the meaning of section 1734 of the Code, which is a part of our statute of frauds, and provides as follows: "No action can be maintained to charge any person by reason of any representation or assurance made concerning the character, conduct, ability, trade, or dealings of any other person, when such action is brought by the person to whom such representation or assurance was made, unless the same is in writing, signed by the party sought to be charged." Code 1886, § 1734; Code 1876, § 2123. The representation is made by the defendant, not as to his own credit, but concerning the credit of a corporation or third person, for whose obligations he is in no manner responsible, apart from such representation. The incidental interest which the defendant has in the matter as president of the defendant corporation does not alone take the case out of the operation of the statute of frauds. A well-recognized and solid distinction exists between contractual guaranties and fraudulent representations as to the credit of another person. "Every special promise to answer for the debt, default, or miscarriage of another" is void, under the statute of frauds, unless reduced to writing, and the consideration is therein expressed. Code 1886, § 1732... The established doctrine of the English courts, however, has always been, since the case of Pasley v. Freeman, 3 Term R. 51, (decided by the king's bench in 1789,) that an action would lie for a false and fraudulent representation, knowingly made, as to the solvency or credit of a third person, acted on by the plaintiff to his damage. That case settled the doctrine, based on broad principles of honesty and commercial morality, that a false affirmation, made by the defendant with intent to defraud the plaintiff to his damage, is the ground of an action on the case in the nature of deceit. 2 Smith, Lead. Case. (8th Ed.) pt. 1, *66, and note, *88, *96. This rule was followed by Chief Justice KENT in Upton v. Vail, 6 Johns. 181, (decided in 1810,) and has v.5so.no.21-36

generally prevailed in this country. The effect of the statute of frauds was by these decisions confined to cases of contract, and the statute was held not to include causes of action based on fraud; for, as has been well observed, "it would be a manifest perversion of the statute of frauds to make it a shield for a deliberate wrong done." 2 Smith, Lead. Case. pt. 1, note 104.

Section 1734 of our Code, which constituted section 1553 of Code of 1852, is substantially in the same language as Lord Tenterden's act, (9 Geo. IV. c. 14, § 6.) Its object seems to have been to put ordinary misrepresentations in mercantile transactions upon the same footing with guaranties, and it has accordingly been construed to embrace every incorrect or untrue misrepresentation unaccompanied by a fraudulent intent, and no other. 3 Reed, St. Frauds, § 1113. In other words, no representation made by a defendant as to the character, conduct, ability, trade, or dealings of a third person, even though false, can be made the basis of an action, unless reduced to writings and signed by the party sought to be charged, or unless it is fraudulently made. In the latter case, such right of action exists outside of and independently of the statute of frauds; the restriction of the statute having no reference to such cases. And a representation as to a third person's credit, within this rule, to be fraudulent, must be as to some alleged fact which the party making knows to be false, or of the truth of which he has no knowledge or well-grounded belief. In the latter case, the assertion is reckless, and implies bad faith. If at the time of making it, however, he believes it to be true, it is not fraudulent, and cannot be made the basis of an action against him in the nature of deceit. Baker v. Trotter, 73 Ala. 277; Einstein v. Marshall, 58 Ala. 153; Upton v. Vail, 5 Amer. Dec. 210, note, 212; Young v. Covell, Id. 316; 2 Smith, Lead. Cas. (8th Ed.) pt. 1, notes, 88–104.

The rule is announced in Munroe v. Pritchett, 16 Ala. 785; Jordan v. Pickett, 78 Ala. 331, and other cases, that an action of deceit will sometimes lie for a misrepresentation made by a defendant as to a material fact, although he did not know it to be false. In Ball v. Farley, 81 Ala. 288, 292, 1 South. Rep. 253, that class of cases is distinguished from the present one. They involve representations made inter partes, between vendor and vendee, or other parties contracting, either personally or by agents, concerning their own affairs, or some other matter than the character, credit, conduct, ability, trade, or dealings of a third person, for whose debts, defaults, and miscarriages they are not ordinarily liable, unless made so by their own fraud, accompanied by damage.

The representations made by the defendant, Clark, involved by implication the credit of the Wetumpka Lumber Company. It was an implied assertion of extensive business, large sales, and correspondingly great commercial prosperity in business. Its falsity, accompanied by the purchase and sale of the plaintiff's goods to meet its own want of cash, especially by an insolvent company, if true, would tend to prove the reverse. Such, at least, might reasonably be inferred by the jury to have been implied by the representation in question. The tendency of the representation, if believed, would, moreover, be to procure credit for the company, which might not otherwise have been extended. It was material, if interpreted as above suggested, and may have proximately contributed to the loss sustained by the plaintiff by inducing the desired credit. It follows from these principles that the eleventh and twelfth grounds of demurrer to the counts of the complaint should have been sustained, and were improperly overruled. There was no error in overruling the other grounds of demurrer. The first five charges requested by the defendant were, for like reasons, erroneously refused. We discover no other errors in the rulings of the circuit court.

Reversed and remanded.

WESTERN RY. Co. v. LITTLE.

(Supreme Court of Alabama. February 28, 1889.)

CARRIERS-OF GOODS-LIMITING LIABILITY-TERMINATION OF CARRIAGE.

A stipulation in a bill of lading that the carrier will not be "liable for damages (either from fire or other cause) as common carriers for any article after it has been transported to its place of destination, and been placed in the depot of the company," is valid, and, upon the storage of the goods in the depot at their destination, the carrier's responsibility as carrier ceases, and thereafter it is that of warehouseman.1

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge.

Action by C. E. Little against the Western Railway Company of Alabama, for goods destroyed by fire while in the company's depot. Judgment for plaintiff, and defendant appeals.

George P. Harrison, Jr., for appellant. W. J. Samford, for appellee.

CLOPTON, J. The goods, to recover the value of which this action is brought by appellee, were transported by defendant, October 9, 1886, from Montgomery to Auburn, Ala., the latter being the place to which they were consigned. They arrived at the point of destination, and were stored in the company's depot, by 11 o'clock of the same day. During the night of the next day the depot was burned, and the goods destroyed. The bill of lading under which they were shipped contained a stipulation that the company will not "hold themselves liable for damages (either from fire or other cause) as common carriers for any article after it has been transported to its place of destination, and been placed in the depot of the company." The court, though holding that the stipulation is not opposed to public policy, also held that it did not operate to terminate the company's responsibility as carrier until plaintiff had been allowed a reasonable time to remove the goods after their arrival and storage.

In Railroad Co. v. Oden, 80 Ala. 38, we ruled that a special contract by which the company's liability as a common carrier was terminated on the arrival of the freight at the depot, and the failure of the consignee to receive and remove it as soon as ready for delivery, without notice, was unjust and unreasonable; but pretermitted an expression of opinion (a decision of the question not being required by the case) whether a railroad company may, by special contract, terminate its liability as carrier at a time earlier than that fixed by law for its continuance. The question is now directly presented, both by demurrer to pleas and instructions to the jury. Appellee contends that the provision in the bill of lading comes within the rule which forbids a common carrier to contract for exemption from liability for damages caused by his own negligence. We do not so interpret the stipulation. It does not purport to release the company from any risk whatever, ordinary or extraordinary, attached by law to the employment of a common carrier while the goods are in transit. The intention and effect are to fix a period after the transportation is complete when the goods pass from the custody of the company as a carrier to their keeping as warehousemen.

The principles involved, and on which the solution of the question now coming before the court for the first time depends, are neither new nor difficult. They have been heretofore considered and settled in analogous cases. It has has been held that in the case of a carrier by water the general rule governing the delivery of the goods may be varied by contract, or by a reasonable, wellestablished, and generally known local custom, constituting an implied term

1As to how far a common carrier of goods may limit its liability by contract, see Railroad Co. v. Thomas, (Ala.) 3 South. Rep. 802, and note; Railway Co. v. Fagan, (Tex.) 9 S. W. Rep. 749, and note.