an undivided hair interest in the property in suit, executed on the 14th March, 1890, by J. H. Ross and his wife, the defendant, to secure a note for $600, which was also signed by the same parties. The name of J. H. Ross was signed first to the mortgage and note. This mortgage was on an undivided half interest in said lot, and conveyed, also, the "note and mortgage for $500, made on the 13th of December, 1889, by E. S. Hanes and Sarah Hanes to J. H. Ross." It was also shown that these mortgages were, respectively, foreclosed, after their law day, in accordance with their terms, and that plaintiff became the purchaser of the property for the amount of his debt. As further tending to show that the debt secured by said mortgage was the debt of defendant, and not that of her husband, the plaintiff introduced one Rowan, a mechanic, who aided in building the house,-which was subject to a mechanic's lien, as was claimed, and he testified that when the house was completed the contractors declined to turn it over to defendant and her husband until the balance due on it was paid; that thereupon the husband of the defendant stated to witness, in the presence of defendant, that he would go to plaintiff, and get the money with which to pay that balance; that he went away, and afterwards returned, and again, in the presence of the defendant, told witness that he had procured the money from plaintiff, and then paid it to witness, in her presence. The witness stated, however, on his crossexamination, that the contract for the construction of the house was made with J. H. Ross and E. S. Hanes, and that each was to pay half of the amount due on it. He did not testify that J. H. Ross borrowed the money for his wife, the defendant, that she authorized him to borrow it, or that she knew he was borrowing it for her. The defendant testified she was not present on the occasion testified to by Rowan, when he said her husband stated he would go to plaintiff to get the money, nor was she in the same room when the money obtained by him from the plaintiff to pay on the house was paid to said Rowan; that she knew before he borrowed it that he intended to do so, and knew that he did borrow it, and paid it out on the balance due on said house. But she testifies that she never borrowed any money from, or made any debt with, the plaintiff; that she paid to her husband $500 to go into the house which was built; that she had paid all she owed on the house, and had signed the note and mortgage at her husband's request, knowing that the debt evidenced by them was for the money her husband borrowed from the plaintiff to pay the sum remaining due on the house. The plaintiff introduced other evidence tending to show that defendant made application to the probate court, after her husband's death, to have dower set apart to her out of her husband's lands; that commissioners were appointed, who

went to her house to inquire as to what lands he owned, and his deeds were read over by them, and among them was one purporting to be executed by Elbert Armstrong, conveying the lands in controversy to said J. H. Ross, and that defendant made no claim to the land purporting to be conveyed by it, as part of her statutory separate estate; and that she said the only real estate she did claim as her statutory separate estate was a lot in Leeds, and that to all the other property, including that sued for, she made no such claim. Notice to produce this deed had been given to the attorney of defendant, and she had failed to produce it on the trial. The defendant testified in reply, as to this matter, that she did have in her possession, at the time of her husband's death, a deed purporting to be executed by said Armstrong to J. H. Ross for the land in controversy; that she had taken the deed herself, and had paid Armstrong six dollars for it; that it was to have been made to her, but by mistake it was made to her husband, and that she had said to Armstrong, who was her brother, that it was unnecessary to make the deed at all; that she did not know where it was, at the time of the trial, but supposed it was with her husband's papers. She had not looked for it. It was also shown, defendant could not read or write. The court allowed the admissions of the defendant, that she had accepted said deed from said Armstrong, to be introduced for the purpose of showing, or tending to show, a recognition of the title of said J. H. Ross by the defendant, and the jury were enjoined not to consider them for any other purpose.

It is settled in this state, whatever may be the rule elsewhere, that a parol estoppel cannot operate a transfer of the legal title to land. It is good, alone, in equity. Barker v. Bell, 37 Ala. 359; Nelson v. Kelly, 91 Ala. 575, 8 South. 690; McCarty v. Iron Co., 92 Ala. 468, 8 South. 417. Even where one is seised in fee of land, and induces another to purchase it at execution sale, or stands by and sees it done, without protest, he is not estopped, in a court of law, from afterwards asserting his title against the purchaser. MePherson v. Walters, 16 Ala. 714; Drake v. Glover, 30 Ala. 382; Harden v. Darwin, 77 Ala. 473. Under the statutes of this state, the wife cannot, directly or indirectly, become the surety for the husband. Code, 2349. And a mortgage by the wife of her statutory separate estate to secure the husband's debt is void. Heard v. Hicks, 82 Ala. 484, 1 South. 639; Lansden v. Bone, 90 Ala. 447, 8 South. 65. The execution of a deed, if not acknowledged or probated and admitted to record in the manner required by statute to render it self-proving, must be proved by one or more of the subscribing witnesses. Coker v. Ferguson, 70 Ala. 284; Caldwell v. Pollak, 91 Ala. 354, 8 South. 546; Manufacturing Co. v. Warren, 91 Ala. 533,

9 South. 384. If the deed is not self-proving by a certificate of acknowledgment, then, "so long as the evidence of the subscribing witnesses can be produced, it is the best, the primary, and the only evidence of its execution. The admissions or declarations of the parties themselves (not made in open court, or in writing, for the purpose of a trial, when they are the parties litigant) are not admissible for this purpose." Russell v. Walker, 73 Ala. 315; Askew v. Steiner, 76 Ala. 221; Coleman v. State, 79 Ala. 50; Railroad Co. v. Jones, 92 Ala. 219, 9 South. 276; 1 Greenl. Ev. § 560.

Applying the foregoing principles to the charges given and refused, and it appears the charges requested by plaintiff and refused (16 in number) are either so plainly opposed to the principles we have announced above, as governing this case, or are otherwise so manifestly illegal, we deem it unnec essary to review them in detail. Charges 1 and 2 given at the request of defendant ignore the plaintiff's title to an undivided half interest in the property sued for, as derived by him under a foreclosure of the mortgage of Hanes and wife to him, which title the defendant recognized, and did not dispute, but which she withholds from plaintiff, and which undivided half interest, as for anything hypothesized in said charges, the plaintiff was entitled to recover. They should have been refused. There was no error in charge 3, given for defendant, nor in that part of the oral charge excepted to, constituting the basis of the twentieth assignment of errors, of which plaintiff can complain. For the error in giving charges 1 and 2 requested by defendant, the cause must be reversed. Reversed and remanded.

1. The statute of frauds, to be available as a defense, must be especially pleaded.

2. The statute of frauds is no defense to an action on an executed contract.

3. Plaintiff's husband, J., as her agent, contracted with defendant for the lease of her premises, the lease being signed by J. and defendant. The rental notes were made payable to J., and, when they fell due, were indorsed in blank, and given to plaintiff. Held, that she could recover thereon, it not being necessary that plaintiff should sign the lease to make the notes binding on defendant.

4. Plaintiff brought attachment for rent in a justice court. On appeal to the city court, plaintiff amended a complaint by counting on three notes executed by defendant, and alleging that they were given for installments of rent for a house belonging to plaintiff. Held not a departure from the original suit.

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

Action by Lura McKie against C. O. Lager

felt on notes given by defendant for the rent of a certain house, the property of plaintiff. There was judgment for plaintiff, and defendant appeals. Affirmed.

The cause was originally instituted in a justice of the peace court, and was commenced by an attachment for rent. Upon the appeal being taken to the city court, the plaintiff filed a complaint, counting upon three promissory notes executed by the defendant. Plaintiff was allowed, against the objection and exception of the defendant, to amend the complaint, by inserting, after the recital of the notes in the complaint, the following words: "Which notes were given for installments of rent for a dwelling house belonging to plaintiff." The defendant demurred to the amended complaint, on the ground that the complaint counted upon several promissory notes, while the original cause of action was for attachment for rent, and the present complaint sets out an entirely new cause of action. This demurrer was overruled, and the defendant excepted. The defendant then interposed two special pleas, in the first of which he averred that the relation of landlord and tenant never existed between him and the plaintiff; and in the other he set up the fact that at the time of the assigning of the lease for rent, and the execution of the notes, the plaintiff was a married woman, and that she did not have the written consent of her husband for her to contract with the defendant for the rent of said premises, and that the relation of landlord and tenant never existed between the plaintiff and the defendant. To each of these pleas plaintiff demurred, on the ground that they set up no defense to the action of the court sustaining the demurrer. To each of these rulings of the court the defendant duly excepted. The plaintiff was allowed by the court, against the objection and exception of the defendant, to amend her complaint by adding a second count, which set out at greater length the execution of the three promissory notes sued on, and that they were given in consideration for the rent of the dwelling house, which was the property of the plaintiff. The defendant then offered to plead in abatement that the cause of action, as shown by the complaint filed in said court, was a departure from the original cause of action before the justice of the peace. This plea in abatement was disallowed by the court, and to this ruling the defendant duly excepted. Upon the trial of the cause, the plaintiff introduced the three promissory notes sued upon, which were executed by C. O. Lagerfelt, the defendant, and made payable to J. D. McKie, who was shown to be the husband of Mrs. Lura McKie. Each of these notes was indorsed in blank by J. D. McKie. To the introduction of each of these notes in evidence the defendant objected, on the grounds that they did not purport to be given to the plaintiff, nor to have been assigned to the plaintiff,

and because they did not purport to be given for rent. The court overruled this objection, and the defendant duly excepted. After proof of the execution of the lease executed by J. D. McKie, as agent for Mrs. Lura McKie, the plaintiff, and C. O. Lagerfelt, by which C. O. Lagerfelt agreed to rent the premises in question, the plaintiff offered to introduce the said lease in evidence. The defendant objected to this, because the lease did not purport to have been executed by the plaintiff, nor to be a conveyance by her. The court overruled this objection, and the defendant duly excepted. J. D. McKie, as a witness for the plaintiff, testified that he was the husband of the plaintiff; that he acted as her agent in the renting of said premises to the defendant, and in executing the lease, and taking the notes introduced in evidence. There were certain other objections to the rulings of the court upon the evidence which it is not deemed necessary to set out in detail. The cause was tried by the court, without the intervention of a jury, and, upon the introduction of all the evidence, the court rendered judgment for the plaintiff. Chas. B. Powell, for appellant. Houghton, for appellee.

W. R.

The

COLEMAN, J. This was an action to recover rent, and began in a justice court, by the issue of an attachment to enforce payment of several installments past due. defense set up is purely technical, and is without any merit. The contract of lease was in writing, made by J. D. McKie, agent for Lura McKie, and Lagerfelt, the defendant in attachment, and was signed by J. D. McKie and Lagerfelt. The several rental notes were made payable to J. D. McKie. The contract of lease was not signed by Lura McKie. The rental notes were indorsed in blank by J. D. McKie. The affidavit for the attachment averred that the rental claim was the property of the plaintiff, Lura McKie. There was no plea denying plaintiff's ownership of the notes, and her right to the claim was not in issue. Moreover, the proof showed the rented property belonged to her, and that the defendant occupied it during the entire term of the lease unmolested, and that he failed to pay the rent notes, upon which the attachment issued, upon demand made, after they were due. The statute of frauds does not arise in the case, for the following reasons: First. The defense of the statute of frauds, to be available, should be specially pleaded. Second. The rental contract was in writing, signed by the tenant, and also the rental notes. It was not necessary that Lura McKie should sign, to make them binding on him. See Nelson v. Improvement Co., (Ala.) 11 South. 695. Third. The contract was fully executed as to these notes. The statute of frauds is not available as a defense when the suit is upon an executed contract.

The defense attempted to be set up under the plea that the suit in the circuit court was a departure from the character of the action in the justice court is equally destitute of merit. On appeal the trial must be de novo. The only departure in pleading which is not permissible on appeal from justice court is that the form of action shall not be changed, and there shall not be an entire change of parties plaintiff or defendant. Smith v. Railroad Co., (Ala.) 13 South. 784; Railroad Co. v. McKellar, 59 Ala. 460. In the present case, however, there was no departure from the original suit. In both courts the action was ex contractu, to recover rent, for the same dwelling, and by the same party. The changes made were mere amendable defects. There is no error in the record. Affirmed.

GEORGIA PAC. R. CO. v. ROSS. (Supreme Court of Alabama. Dec. 4, 1893.) WANTON NEGLIGENCE-PLEADING-Evidence.

1. A complaint alleging that an injury to plaintiff was the result of the wanton and reckless negligence of defendant charges more than simple negligence.

2. Where a trespasser on a railroad bridge is run into, the facts that the view from that point was unobstructed for 150 yards, that the train might have been stopped within 80 to 150 feet, and that the fireman was looking out of the engine along the track towards the trespasser do not show wanton and reckless negligence, as, if the fireman did not see him, it would be but simple negligence.

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

HARALSON, J. The averment of negligence in the first count of the complaint is that at the time specified, in the town of Stockton, "the defendant company so carelessly, negligently, and recklessly moved, handled, and operated a steam engine, and tender attached, that plaintiff was struck or run against by said engine," and injured, and the injury he received is averred to have been "the result of the wanton and reckless negligence of the defendant company in the handling and moving of said engine," etc. The averments of the second count are that the engine and tender were moved "at such a high and negligent and reckless rate of speed, to wit, 40 miles an hour, in the town aforesaid, that the plaintiff was struck by said engine with such force and violence" that he received the injuries specified; "and plaintiff avers that said injuries were the result of the wanton and reckless negligence of the defendant company in moving, han

dling, or running said engine over and along said line of road, at such a high and reckless rate of speed aforesaid." In neither count is it shown whether the plaintiff was a passenger or employe, or had any connection with the railroad company, and it will be presumed he was a trespasser, who can recover only for injuries caused by the reckless, wanton, or intentional negligence of defendant. The demurrer questioned the sufficiency of each of the counts, on the ground that it was not averred in either "that the injury to plaintiff was inflicted wantonly or intentionally," and "because the counts show that the defendant, if guilty of any negli gence at all, was guilty of only simple negligence." The complaint is not amenable to the criticism made, and the demurrer was properly overruled. Railway Co. v. Chewning, 93 Ala. 24, 9 South. 458; Railroad Co. v. Jacobs, 92 Ala. 187, 9 South. 320; Stringer V. Railroad Co., (Ala.) 13 South. 80; Glass V. Railroad Co., 94 Ala. 582, 10 South. 215. The plaintiff, it is not denied, was a trespasser on defendant's track at the time he received his injuries. He attempted to cross a long trestle under circumstances of manifest peril to himself. The trestle was shown to have been within the yard limits of the defendant, in the village of Stockton, which is not shown to be incorporated, and not in a thickly-settled or populous district of the village. On the contrary, it appears that but few people resided about there. As such trespasser, the railroad company owed plaintiff no duty except the exercise of reasonable care and diligence to avoid injuring him, if and when his peril became apparent to the company's employes. The company was under no obligation to maintain a special lookout in order to prevent injuring him; the necessity for such a lookout having been caused by his own wrongful act, which the company was not bound to anticipate. Railroad Co. v. Blanton, 84 Ala. 155, 4 South. 621; Banking Co. v. Vaughan, 93 Ala. 210, 9 South. 468; Glass v. Railroad Co., 94 Ala. 582, 10 South. 215. To entitle such a plaintiff to recover, notwithstanding his own contributory negligence, it must be made to appear that the defendant's employes, after discovering his peril, failed to exercise due care and diligence to avert the injury, constituting wanton, reckless, or intentional negligence on their part. The only facts in evidence from which it could be inferred that the employes of the company knew of plaintiff's peril were that the accident happened in the daytime; that the road at that point was nearly straight, and the view unobstructed for about 150 yards above the trestle; that the engine, as the proof tended to show, might have been stopped within from 80 to 150 feet; and that the fireman on the engine was seen by a witness, at the time, to be looking out of the window of the engine down the track towards plaintiff. In Nave . Railroad Co., (Ala.) 11 South. 391, a case

very similar to this, it was held that such facts as these do not imply a knowledge on the part of the employes of the train of the plaintiff's peril. It was there said: "The evidence does not show that defendant's employes in charge of the train actually knew, or were guilty of reckless or wanton negligence in not knowing, the perilous position of deceased in time to avert the danger by the use of any possible diligence. Failing to see him, under the facts proven, at most would be nothing more than simple negligence, and this will not authorize a recovery when the plaintiff himself was guilty of contributory negligence." The foregoing and other adjudications of this court, when applied to the facts of this case, bring us to the conclusion that the defendant was not guilty of "wanton and reckless" negligence, as averred in the complaint, and therefore that the plaintiff was not entitled to recover. The general charge, as requested, should have been given for the defendant. This view of the case makes it unnecessary to notice the other assignments of error. Reversed and remanded.

benefit of creditors the assignee interposed a 1. In attachment against an assignor for claim to the attached property. Held, that the statement of a witness that "it seems" the assignor was in control of the business after the assignment was inadmissible.

2. It was not error to refuse to allow a witness to give his opinion as to whether certain figures in pencil on books of an assignor, which were used also by the assignee, were made by the assignor, before it was shown that the witness knew his handwriting.

3. But testimony of such assignor that he made the assignment after taking legal advice, that he ascertained on the night before he made it that it would be necessary, and detailing the circumstances under which it was made, was properly admitted.

4. The assignee had been a clerk in the assignor's store, and after the assignment he gave to tenants on the plantation of the assignor's wife orders for goods contained in a warehouse, and consigned to the assignor, on which were the initials of such tenants. The assignor testified that he shipped all of his and his wife's cotton in his name, but the goods in the warehouse were shipped in the name of his wife's tenants to him; that they were her goods, and were for tenants on her place. Held, that plaintiff should have been permitted to show that the goods were purchased for him.

5. Evidence as to how much the wife of such assignor was worth was properly excluded, in the absence of evidence that she had received anything from her husband in fraud of his creditors.

8. Evidence of the "commercial rating" of an assignor for benefit of creditors is not competent to show that he has not embraced all his property in the assignment, and that it is therefore void.

7. The fact that in the deed of assignment a power of attorney is formally given to the assignee, and that he is in terms ap