It is, of course, not such uncertain, speculative, and remote pecuniary interests as those just referred to that will disqualify a witness to testify as to transactions with or statements by a deceased person whose estate is interested in the result of the suit, but, to disqualify, the interest must be pecuniary, and it must be involved in the suit so as to be affected by the judgment to be rendered therein. "A case cannot arise for the application of the exception unless it involves a direct, immediate conflict of interest between the dead and the living." Insurance Co. v. Sledge, 62 Ala. 566; Howle v. Edwards, 97 Ala. 649, 11 South. 748. "A mere suggestion of a remote and contingent interest, of the existence of which there is no evidence, does not warrant the exclusion of a statement by one not a party to the suit." Cromwell v. Horton, 94 Ala. 647, 10 South. 358. So far as Watts being shown to have a pecuniary interest in the result of this suit opposed to the interest of the administratrix against whom he was called as a witness, it would seem that, if he can be said to have had any such interest, it was in line with the interests of the plaintiff, and opposed to those of the party calling him; since if, as plaintiff asserts, he made a contract of insurance, which was binding on defendant, he was entitled to a certain share of the proceeds of the note given by Manegold for the amount of the first premium, and, if defendant succeeded in the action, this would be lost to him. But we do not rest our conclusion that he was competent to testify as to what passed between him and Manegold on the suggestion just made. He was clearly competent on the broad ground that he was not shown to have any pecuniary interest in the result of the suit. There is no disqualification of any witness by the statute because of any relation he may sustain to the parties to the action so long as his relations are not such as renders him a beneficial party, though not named on the record. The statute does not proceed on the idea that because A. was the agent of B. in a transaction with C., since deceased, A., in a suit involving the interests of B. and C.'s estate, growing out of that transaction, would presume upon the seal death had impressed upon the lips of C. to testify falsely for B.; but it does proceed upon the theory that there is danger of false | swearing on the part of A. in the case supposed when he has a pecuniary interest opposed to a's estate in the result of the suit, a danger which arises from the two facts that C. cannot contradict him and that the situation offers a reward for his perjury. And, so long as A. has no such incentive to false swearing as is supplied by a pecuniary interest to be subserved by it in the particular suit, he is a competent witness against C.'s estate as to any transaction with or statement by C. in his lifetime, whether in that matter he was the agent of the party calling him, and, if so, whether such party be an individual or a corporation. Watts-and Smith, too, for that matter-being a competent witness to prove what occurred between him, as agent for defendant, and Manegold, with reference to the rejection of the latter's application for insurance, it was regularly and properly and beyond controversy proved in the case that, if any contract of insurance at any time existed between Manegold and defendant, it had been absolutely and completely annulled and avoided prior to the death of Manegold; and the city court was right in giving the affirmative charge, with hypothesis, for the defendant. It is plain, also, that, had the demurrer to the second count of the complaint been overruled, instead of being sustained, and that count had remained in the case, the defendant, on all the facts of the case, would still have been entitled to the affirmative charge; so that whether the ruling on the demurrer to that count was correct or not is immaterial. Affirmed. BLUTHENTHAL et al. v. TOWN OF HEADLAND. (Supreme Court of Alabama. Dec. 20, 1901.) MUNICIPAL CORPORATIONS ULTRA VIRES AND ILLEGAL CONTRACT. Under Acts 1898-99, p. 108, § 9, providing that the dispenser shall buy and sell spirituous, vinous, and malt liquors for cash only, a purchase of such liquors on credit is illegal, and an action will not lie either against the city on the contract itself or in assumpsit on an implied contract for said liquors, though they were received and used by the city. Appeal from circuit court, Henry county; John P. Hubbard, Judge. Action by Bluthenthal & Bickert against the town of Headland. From a judgment for defendant, plaintiffs appeal. Affirmed. Espy, Farmer & Espy, for appellants. Pearce & Pace, for appellee. HARALSON, J. An ultra vires contract is one that is wholly and manifestly outside of the charter or constituent act of the corporation or some valid legislative act applicable to it, and contracts in this sense ultra vires, import in general no corporate liability directly upon the contract. 2 Dill. Mun. Corp. § 969. Incorporated companies have no powers except those which their charters confer upon them either expressly or as incidental to their existence. Beach v. Fulton Bank, 3 Wend. 583; Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. Ed. 629; Alabama Gold Life Ins. Co. v. Central Agricultural & Mechanical Ass'n, 54 Ala. 73; Taylor v. Association, 68 Ala. 235; 2 Dill. Mun. Corp. 969; Green's Brice, Ultra Vires, 28. While it is true that no corporate liability is imposed on the corporation when sued on such a contract, it is well established, that "persons who have in any way advanced money to a corporation, which money has been devoted to the necessaries of the corporation, are considered in chancery and at law, in the equitable action for money had and received as creditors of the corporation to the extent to which the loan has been so expended" (Green's Brice, Ultra Vires, 724); and the corporation is liable in an action of implied assumpsit. 1 Dill. Mun. Corp. § 126, note 1. The rule is thus stated by Mr. Tiedeman, quoting Field, C. J., in Argenti v. City of San Francisco, 16 Cal. 252, 282: "The doctrine of implied municipal liability applies to cases where money or other property of a party is received under such circumstances that the general law, independent of express contract, implies an obligation upon the city to do justice with respect to the same. If the city obtain money of another by mistake, or without authority of law, it is her duty to refund, nct from any contract entered into by her on the subject, but from the general obligation to do justice which binds all persons whether natural or artificial * * The money must have gone into the treasury or been appropriated by her, and when it is property other than money, it must have been used by her, or be under her control." Tied. Mun. Corp. § 164. The evidence in this case shows, that the goods purchased were received and sold and the money paid into its treasury or appropriated to its uses. If the defense rested wholly on the ultra vires character of the transaction in the purchase of the liquors, it would be unavailing. This question was fully discussed and settled in the case of Allen v. Intendant, etc., 89 Ala. 641, 8 South. 30, 9 L. R. A. 497. A distinction, however, exists between acts or contracts simply ultra vires, and those which are illegal because made in violation of a positive provision of statute. When contracts are prohibited by statute to be made, they are, if made, illegal, and not simply ultra vires, and are subject to the rules governing the action of courts in respect to illegal contracts. It is well understood, that a corporation can make no contract which is prohibited by its charter or by the statute law of the state; and if such a contract is entered into by the municipality or its officers, and money or other property is furnished under it, the city is not bound, although the money or property may have been used by it. 1 Dill. Mun. Corp. §§ 133, 447; Thomas v. Richmond, 12 Wall. 349, 20 L. Ed. 453. A promise to pay will not be implied from a contract which is void, because of the disregard of a plain statutory requirement. Tied. Mun. Corp. § 164; Woods v. Armstrong, 54 Ala. 150, 25 Am. Rep. 671. In considering these questions, on an examination and citation of authorities, this court in the case of Allen v. Intendant, etc., supra, formulated the following rule: "Municipal corporations are liable to actions of implied assumpsit with respect to money or | property received by them and applied beneficially to their authorized objects, through contracts which are simply unauthorized, as distinguished from contracts which are prohibited by their charters, or some other law bearing upon them, or are malum in se, or violative of public policy." The act to authorize the establishment of dispensaries by municipal and other subdivisions of this state, approved Feb. 18, 1899 (Acts 1898-99, p. 108), in section 9, provides, that "the dispenser shall buy and sell (spirituous, vinous and malt liquors) for cash only." This was a prohibition of his buying or selling on credit. Tied. Mun. Corp. § 165; Black, Interp. Laws, 64, 65; 15 Am. & Eng. Enc. Law (2d Ed.) 935, 936. The evidence was without conflict, that the plaintiffs sold, and the dispensers bought the liquors, for the recovery of the value of which this suit is brought, on open account on 30 days' time or credit. This was a transaction prohibited by the statute, on that account illegal and void, and no cause of action arises from it for recovery, either on the contract itself, or in assumpsit on an implied contract, although the city received and got the benefit of the goods sold. There was no error in the general charge given for defendant. Affirmed. AMERICAN BUILDING, LOAN & TONTINE SAVINGS ASS'N v. HALEY et al. (Supreme Court of Alabama. Dec. 17, 1901.) FOREIGN CORPORATIONS-RIGHT TO DO BUSINESS IN THE STATE-BILL TO FORECLOSE MORTGAGE-DEMURRER-NECESSARY ALLEGATIONS COMPLIANCE WITH STATUTEDOMESTIC TRANSACTION-USURY. 1. Although a bill by a foreign building association to foreclose a mortgage on lands in the state fails to allege compliance with Code, § 1316 and the following sections, providing that a foreign corporation, before doing business in the state, must file a statement designating an agent and place of business in the state, it is not demurrable, unless it shows upon its face that the mortgage was executed, or the transaction giving rise to it occurred, in the state. 2. A bill which shows that the land subject to the mortgage is in the state, and that the mortgagor resides therein, is not demurrable as showing a transaction occurring in the state, since there is no law forbidding a foreign corporation to make loans in the course of business done in its home state on security of lands in Alabama. 3. Where a bill to foreclose a mortgage is framed for foreclosure as to unpaid principal of the sum secured, as well as for charges claimed to be usurious, a demurrer to the whole bill will not raise the question of usury. Appeal from chancery court, Colbert county; Wm. H. Simpson, Chancellor. Suit by the American Building, Loan & Tontine Savings Association against Mark R. Haley and others. From a decree sustaining a demurrer to petitioner's bill, it appeals. Reversed. Cooper & Foster, for appellant. SHARPE, J. In Sullivan v. Vernon, 121 Ala. 394, 25 South. 600, it was held that a foreign building and loan association was not entitled to relief upon a bill to foreclose a mortgage taken in the transaction of its corporate business in this state, without alleging its compliance with the conditions as to appointing here a place of business and an agent prescribed by the statute. Code, § 1316 et seq. The absence of such allegation does not, however, subject such a bill to demurrer where the bill does not show on its face that the transaction was had in this state. The principle governing is the same as that which in Collier v. Davis, 94 Ala. 456, 10 South. 86, was applied in condemnation of a plea which set up a similar statute in bar of a suit growing out of a loan by a foreign corporation, and failed to show atfirmatively that the contract for the loan was made in this state. The present bill does not, as in the Case of Sullivan, supra, disclose that the mortgage sought to be foreclosed was executed here, or that the transaction giving rise to it was in any part had in this state. That it evidenced an Alabama contract is not presumable merely from the facts that the land was here and the mortgagor resided here, and there is no law which prohibits a foreign corporation to make loans, in the course of business done in its home state, on security consisting of lands in Alabama. Lighting Co. v. Rust, 117 Ala. 680, 23 South. 751. The demurrer was not appropriate to raise the question of usury, for the reason that it was directed to the bill as a whole, and the bill was framed for foreclosure as to unpaid principal of the sum secured, as well as for charges claimed to be usurious. The decree sustaining the demurrer will be reversed, and one will be here rendered overruling the demurrer, and allowing 30 days within which the bill may be answered. Let the cause be remanded for further proceedings. Reversed and remanded. HANNIGAN v. STATE. (Supreme Court of Alabama. Dec. 19, 1901.) ARSON-OWNERSHIP-OCCUPANCY-CIRCUM STANTIAL EVIDENCE-CONFESSION. 1. Where an indictment for arson laid the ownership of the building in a corporation, and the evidence showed that the house was owned by such corporation, and was used by it at the time of the fire, it was not error to refuse to instruct that, if the state failed to prove, by evidence of title, ownership of the property as alleged, defendant could not be found guilty, as proof of rightful possession was sufficient. 2. Where the evidence against accused showed a positive confession by him, it was not error to refuse instructions asserting that the evidence was circumstantial. Appeal from Tuscaloosa county court; J. J. Mayfield, Judge. Dan Hannigan was convicted of arson, and appeals. Affirmed. TYSON, J. The defendant was indicted for the offense of arson in the second degree. The indictment laid the ownership of the store charged to have been willfully set fire to and burned by defendant in the Alabama Consolidated Coal & Iron Company, a corporation. The evidence tended to show that the house set fire to was the property of that corporation, and was used by it as a general merchandise storehouse, and that it contained at the time property worth more than $500. There was no other evidence of ownership. The following charge in writing was refused to defendant, to wit: "The court charges the jury that, if the state failed to prove by evidence of title ownership of the property fired as charged in the indictment, the jury cannot find the defendant guilty." This charge is a copy of the one which the court held in Boles v. State, 46 Ala. 207, was good, and should have been given. The reason assigned was: "The form of the indictment requires this allegation. These are the forms prescribed by law. What they contain is required to be alleged; and what is required to be alleged must be proven." It is true, ownership must be alleged. "But at common law and under the statutes the offense is against the possession, rather than the property. * The possession, not the tenure or interest in the property, must be described. *** Therefore, at common law, the offense reaching only the dwelling house, the indictment must not have averred it was the house of him in whom the fee resided, if in fact another had the actual occupancy, even though the occupancy was wrongful." Adams v. State, 62 Ala. 177; Heard v. State, 81 Ala. 55, 1 South. 640; May v. State, 85 Ala. 14, 5 South. 14. In Davis v. State, 52 Ala. 357, the indictment was in the Code form, as here, and the ownership of the house was laid in Jennie Pharr, a servant of the owner of it, who was occupying it as her dwelling when the offense was committed. The court said: "In the case of People v. Van Blarcum, 2 Johns. 105, it is held, if one be indicted for burning the dwelling house of another, it is sufficient if it be in fact the dwelling house of such person. The court will not inquire into the tenure or interest which such person has in the house burned. It is enough that it was his actual dwelling at the time. In 1 Bish. Cr. Proc. 573, the rule is stated to be that the house must be laid to be the dwelling house of the real occupier." For aught appearing in Boles' Case, the state relied exclusively upon title to the property to support the ownership laid in the indictment, and not upon possession. Indeed, in that case it does not appear there was any evidence of actual possession by the alleged owner, or any one else, of the property charged to have been set fire to. While the charge should have been given under the facts of that case, it was, to say the least of it, manifestly misleading, when applied to the facts of this one, and was properly refused. The evidence discloses a positive confession by defendant of having committed the crime. This is not circumstantial evidence, but direct. Burrill, Circ. Ev. 495; Wills. Circ. Ev. 16, 68; Greenl. Ev. (16th Ed.) §§ 13, 14; Dennis v. State, 118 Ala. 79, 23 South. 1002; Green v. State, 97 Ala. 63, 12 South. 416, 15 South. 242. Charges 5 and 7 assert that the evidence against defendant was circumstantial, and for that reason were properly refused. Cotton v. State, 87 Ala. 75, 6 South. 396; Green v. State, supra; Dennis v. State, supra. Affirmed. DRENNEN v. GILMORE et al. (Supreme Court of Alabama. Dec. 20. 1901.) SET-OFF AND COUNTERCLAIM-PARTNERSHIP DEBTS. Under Code, § 3728, providing that mutual debts subsisting between the parties at the commencement of the suit may be set off, a partner, sued individually for a partnership debt, cannot set off a debt owed by the plaintiff to the partnership, Id. § 40, making a partner individually liable for the partnership debts. Appeal from city court of Jefferson; Chas. A. Senn, Judge. Action by Gilmore Bros. against W. M. Drennen. From a judgment for plaintiffs, defendant appeals. Affirmed. E. J. Smyer, for appellant. James E. Webb, for appellees. HARALSON, J. It is neither pleaded nor shown, that the set-off attempted, existed in defendant's favor, as a claim owned by him individually, at the time of the institution of this suit. For aught appearing, he could not at that time have successfully maintained an action on it in his own name and for his own benefit. "A set-off, to be available, must be owned by defendant in absolute right, at the time suit is brought. It is not enough that, together with another partner, the defendant owns the claim. It must be such demand as that he, in his own name, or in the names of defendants sued, without bringing in the name of a stranger to the suit may maintain an action of debt or indebitatus assumpsit upon it, against the party, or all the parties suing, as the case may be. Less than that is not mutuality. Ownership at the time of suit brought is of the very essence of the right." Jones v. Blair, 57 Ala. 457; Wood v. Steele, 65 Ala. 436; Manning v. Maroney, 87 Ala. 563, 6 South. 343, 13 Am. St. Rep. 67. In order to sustain a set-off under the statute, the debts must be mutual, and the demands must be subsisting causes of action, such as will give to the plaintiff and defend ant a simultaneous cause of action, the one against the other, at the time the suit is brought. Packet Co. v. McPeters, 124 Ala. 455, 27 South. 518; Lawton v. Ricketts, 104 Ala. 430, 16 South. 59; Wat. Set-off, § 25. Section 40 of the Code, existing substantially, since 1818, and carried into the Code of 1852, provides for the several as well as joint liability of two or more persons associated together as partners, and that any one of the associates, or his legal representative, may be sued for the obligation of all. Clay, Dig. 323; Code 1852, § 2142. Section 3728 provides, that "mutual debts, liquidated or unliquidated demands not sounding in damages merely, subsisting between the parties, at the commencement of the suit, may be set off one against the other by the defendant or his personal representative, whether the legal title be in the defendant or not," etc. The debt of Drennen & Co. to plaintiffs, for the collection of the draft by them for $500 belonging to plaintiffs, and left by plaintiffs with them for collection, was, under the statute, the individual debt of the defendant, W. M. Drennen, who was a member of that partnership, and for which he was personally liable, just as much so, as if his partnership had not existed, and he had personally collected said draft. When sued individually on this debt by plaintiffs,-as they were authorized by statute to proceed against him, he attempted to plead a debt the plaintiffs owed his firm, without pleading or proving that he was the owner of the set-off at the time the suit was commenced. This he could not do. The debts were not mutual, for the reason that plaintiffs owned the debt sued on, and Drennen & Co. owned the setoff. A right of set-off, to diminish or defeat a recovery, did not exist at common law, but is a creature of the statute, under which it does not exist, unless, as has been stated, the plaintiff and defendant have subsisting causes of action, such as will give them simultaneous right to sue, the one against the other, at the time the suit is brought. Authorities supra. If the rule invoked is a harsh one, as contended by the appellant, the reply is, that he has no statutory right to plead the set-off, and must stand where he stood, without any statute on the subject. The statute cannot be construed to meet cases not specially included within its terms. Our own adjudications heretofore substantially settle the case. Pierce v. Pass, 1 Port. 232; Von Pheel v. Connally, 9 Port. 452; Hoyt v. Murphy, 18 Ala. 316; Duramus v. Harrison, 26 Ala. 326; Evans v. Sims, 37 Ala. 710; Fancher v. Furnace Co., 80 Ala. 484, 2 South. 268; Cannon v. Lindsey, 85 Ala. 198, 3 South. 676, 7 Am. St. Rep. 38; Fertilizer Co. v. Pollock, 104 Ala. 402, 16 South. 138. The plaintiffs did not claim interest further than from June 30, 1894, a period of six years and seven months from that date to January 30, 1901, the date of the judgment. The debt and interest to that date amounted to $763.33 for which amount the judgment should have been rendered, instead of for $790 as found by the judge. The judgment will be corrected so as to make it for $763.33, and as corrected, it will be affirmed. Corrected and affirmed. JONES v. JONES. (Supreme Court of Alabama. Dec. 19, 1901.) DIVORCE ALIMONY-ENFORCEMENT-COURT DECREE-MODIFICATION-RESERV- 1. In an action for divorce the court can, in its decree, reserve the right to control the collection of future payments of alimony, and to modify such allowance as justice may require. 2. A decree of divorce directed monthly payments of alimony to plaintiff, and retained the cause for such further orders as should be required. A subsequent order directed execution to collect the amount then due, but that there should be no further execution until further order, for which plaintiff might apply when she could show that the condition of defendant was so changed that he could pay. Plaintiff's petition for further execution did not show any change in defendant's condition, and it appeared that he was unable to pay. Held, the petition should be dismissed. Appeal from chancery court, Fayette county; John C. Carmichael, Chancellor. Action by Josephine E. Jones against William W. Jones. From an order dismissing plaintiff's petition that a former decree be set aside, and for execution to collect delinquent installments of alimony, she appeals. Affirmed. George A. Evans, for appellant. Daniel Collier, for appellee. DOWDELL, J. The appellant filed her petition in the chancery court, praying that, under a former decree of said court in the case of Josephine E. Jones against William W. Jones, an order be made awarding her an execution under said decree for the collection of alimony which had accrued to her, and further praying for a reference to the register to ascertain the amount of alimony then due her by the defendant in the petition under said former decree of the court. This petition was answered by the defendant, William W. Jones, and proof was taken, and the cause submitted on petition, answer, and proof, and a decree rendered dismissing said petition. From this decree the present appeal is prosecuted. The only question involved in this litigation is as to whether, under the facts of the present case, the chancery court had the right and power to control its process for the enforcement of its former decree, and, further, the right to deny to petitioner an execution on said decree. The following facts are shown by the record: On the 3d day of July, 1891, the court rendered a decree, on a bill filed by the pe titioner against the defendant, divorcing both parties from the bonds of matrimony, and further decreed to the complainant in said cause temporary alimony and attorney's fees, and also decreed to the complainant permanent alimony, fixed in the sum of $25, payable by the defendant on the 3d day of each succeeding month thereafter. This decree further provided that, "upon the failure to pay such monthly installment, the court reserves the right to make the necessary orders for the coercion of the defaulting installments; and the court will retain the case on the docket for such orders as may be necessary in the premises." An appeal was taken from this decree to this court, and the same was by this court affirmed, with the modification that the permanent alimony fixed by the chancery court be reduced to $15 per month. 11 South. 11, 18 L. R. A. 95. It will be observed that this decree did not award an execution, but, on the contrary, reserved to the court the right to make the necessary orders for the collection of the installments as fixed, as well as necessary orders in the premises. Under this decree the defendant paid monthly installments of alimony up to the year 1894, when default was made. In 1895 the petitioner filed her petition in said chancery court, praying for an execution to issue for the collection of the alimony which had accrued and was then due her under said decree. The record recites that an answer and cross petition were filed to this petition by the defendant, and that the cause was then submitted upon the petition, cross petition, and proof then taken. A decree was rendered on this petition on the 23d of September, 1896, in which an execution was awarded to the complainant for the collection of alimony which had accrued to her under the former decree up to the date of filing said petition, amounting to the sum of $270. It was provided in this decree of September 23d, among other things, as follows: "And the court being satisfied from the proof that defendant, W. W. Jones, is, by reason of his poverty, unable to make other payments, it is therefore ordered, adjudged, and decreed that the register of this court be, and he is hereby, directed to issue an execution in favor of Mrs. Josephine E. Jones against said W. W. Jones for said sum of $270 and the costs of this proceeding. It is further ordered that no other or further execution for alimony shall be issued until the further order of this court, but that said Mrs. Josephine E. Jones shall have the right to make application to this court for further execution for the allowance of alimony heretofore accrued, and alimony hereafter to accrue, whenever she shall show that the condition of said W. W. Jones is so changed as that he can and ought to pay said alimony. It is further ordered that this cause be retained in court for the purpose of considering and adjudicating such further ap plication when made, but until such applica |