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say this was the question, because the tes- prove a ratification by the defendants of the timony adduced proves it. Neither the plea contract of renting.” Still there are aunor the ratification is shown in the record. thorities, English and American, which susIt is desirable that such issue as this should tain that dictum. There are two lines of be distinctly shown in the pleadings. The decisions bearing on the inquiry of what acts notes and mortgage were given to secure the of ratification of an infant's contract, done repayment of money borrowed. The loan after reaching majority, will preclude him was on five years' time, and one note was from interposing the defense of infancy. given for the principal, made payable at the Following the older dicta on the subject, one end of five years. Coupon interest notes of these lines "holds that an infant's conwere given, payable yearly. The last inter- tract imposes no legal liability on him until est coupon matured March 12, 1890. All the ratified after full age has been attained, and notes were secured by the mortgage. The such ratification must have all the elements mortgagor paid the interest for the first four of a new contract, except a new considerayears on the maturity of the several cou- tion. There must be an express promise, or pons, but refused to pay the principal and such acts, after the infant becomes of age, the fifth coupon. Thereupon the present as practically lead to the conclusion that he suit was instituted.

intended to ratify the contract, and pay the The defendant, Mrs. Wright, testified "that | debt. Such a debt is regarded as standing she paid the plaintiff all of the coupons men- on the same footing as a debt that has been tioned in the mortgage as they matured, with destroyed by a discharge in bankruptcy, and the exception of the one maturing on the not as one that is barred by the statute of 12th day of March, 1890, introduced in evi- limitations." 10 Amer. & Eng. Enc. LAW, dence by plaintiff. That she did not know 614, 645; Edmunds v. Mister, 58 Miss. 765; until January, 1890, when she was so in- Tibbetts v. Gerrish, 25 N. H. 41; Wilcox v. formed by a lawyer, that the mortgage was Roath, 12 Conn. 550. See, also, Tyler, Inf. invalid, and that she could avoid the pay- pp. 84-87, and authorities; Bish. Cont. $ ment of it, because she was a minor when 943; Thrupp v. Fielder, 2 Esp. 628; Thompthe same was executed; and that, after she son v. Lay, 4 Pick. 48; Benham v. Bishop, learned that, she decided not to pay, and 9 Conn. 330; Goodsell . Myers, 3 Wend. never paid anything after she knew she was 479; Hinely v. Margaritz, 3 Pa. St. 428; Ford not bound by the contract." Plaintiff ob- v. Phillips, 1 Pick, 202; Hale v. Gerrish, 8 jected to that part of the testimony of this N. H. 374; Thing v. Libbey, 16 Me. 55; witness in which she stated her want of Turner v. Gaither, 83 N. C. 357. So, there knowledge of the result of her acts in mak- is a strong array of authorities in favor of ing payments on said debt until January, this severer and more exacting rule. "The 1890; the objection was overruled, and an other line of cases lays down the rule that exception reserved. The court gave judg. | the contracts of infants are only suspended ment for defendant, and plaintiff excepted. during minority, and may be ratified on full The contract being entered into by Mrs. age, upon the same principles, and for the Wright before she was 21 years old, the same reasons, as a debt barred by the stat. question arises, was her want of knowledge ute of limitations may be revived. There that she had power to repudiate the obliga- | fore a new promise, positive and precise, tion a sufficient excuse for the payments of equivalent to a new contract, is not esseninterest on the loan, which she testifies she tial, but, as the words 'ratify' and 'confirm made? Does her ignorance of her legal right necessarily import that there is something to renounce the contract on attaining her in existence to which ratification or confirmamajority arm her with the power to exercise tion can attach, any words or acts by the inthat right whenever she is informed she pos- fant after arriving at full age that clearly sesses it; and this, notwithstanding any acts recognize the existence of the contract as she may have done, pointii to ratification a binding obligation, will constitute a ratianterior to receiving such information ? fication." 10 Amer. & Eng. Enc. Law, 645, There are decisions which answer this in- 646. This latter statement of the rule is quiry in the affirmative, and this court, in supported by a respectable array of authorfFlexner v. Dickerson, 72 Ala. 318, speaking ties, and the author expresses his approval of ratification of a contract entered into of it in the following language: "This latduring infancy, said it could be done "only ter rule seems more consonant with principle, by an express confirmation, or new promise and with the tendency of the modern cases voluntarily and deliberately made, by the holding that the infant is sufficiently protectinfant upon coming of age, and with knowl

ed by a right to avoid his contracts, which edge that he is not legally liable." We sup- are valid until avoided." Henry V. Root,

decision had a material bearing in 33 N. Y. 526. Speaking of the alleged printhe decision of the case we have in hand. ciple that to constitute a binding ratification The assertion that to be binding the act it is essential that the promise or act should claimed as ratification must be done “with be given or done with knowledge that he is knowledge that he is not legally liable” was not legally liable on the contract, this audictum, for the opinion had asserted that thor, on page 648, says: "It is not neces"the record contains no evidence tending to sary to the validity of the ratification that

pose thi

the person lately an infant should be aware than the forbearance of that debt. Each of his right to avoid his contract. Ignorance payment was an acknowledgment that the of the law gives him no excuse." To this contract was. binding. Defendant had ratihe cites several authorities, and among them fied the voidable contract, and the judgment Whart. Cont. $ 57, who speaks in strong con- ought to have been in favor of the plaintiff'. demnation of the alleged doctrine. To the We have not the means of rendering a proper same effect, see 7 Wait, Act. & Def. 138; judgment here. Reversed and remanded. Morse v. Wheeler, 4 Allen, 570. A very instructive discussion of this question will be found in Ewell's Leading Cases, note to Hale V. Gerrish, commencing on page 173. In ALABAMA MIDLAND RY. CO. et al. v. Alabama we have not adopted the exacting

MARTIN et al. rule, but have held that all contracts of in

(Supreme Court of Alabama. Dec. 21, 1893.) fants, with a very limited exception, are

TRESPASS-INDEPENDENT CONTRACTORS-DEMURsimply voidable, not void. Jefford v. Ring

RER-EVIDENCE. gold, 6 Ala. 544; Thomason V. Boyd, 13 1. Where a railroad company yield, posAla. 419; West v. Penny, 16 Ala. 186; Shrop- session of its premises to a company which shire v. Burns, 46 Ala. 108; Philpot v. Bing

contracts to build a railroad thereon, and the

latter coinpany lets the contract to a third parham, 55 Ala. 435; Flexner v. Dickerson, 72

ty, the first company is not liable for trespasses Ala. 318; Sharpe v. Robertson, 76 Ala. 343. committed by the last contractor on adjacent We think we better carry into effect the

lands, and it is immaterial that the work is policy declared in our decisions and better

to be done subject to the approval of the first

company's engineer. subserve the purposes of justice by holding, 2. Where a complaint alleges trespasses to as we do, that contracts of infants, such as have been continuous, from day to day, during we have in hand, are simply voidable, not

a certain time, a demurrer on the ground that

it fails to state the time when the several void, by reason of the infancy; that it is

trespasses were committed is properly overa defense he may or may not make, at his ruled. option; that an express promise to pay is

3. In trespass q. c. f. for injuries done by

railroad contractors to lands over which the not the only method by which the defense

railroad company has a right of way, evidence may be precluded, but any other declaration

of injuries caused by constructing defective or act which satisties the trying body that stock gaps, in consequence of which hogs and the liability or contract duty is still binding,

cattle went upon the land adjoining the right and intended to be complied with, if volun

of way, is inadmissible, since the proper remedy

for such negligent acts is case, and not trespass. tarily done, or entered into, completely neutralizes the defense of infancy; and that it

Appeal from circuit court, Dale county; is not necessary to a binding ratification that

J. M. Carmichael, Judge. the party sought to be charged knew, at the

Trespass by W. E. Martin & Bro. against

the Alabama Midland Railway Company time the promise was made, or act done, that be or she had the right to avoid the con

and J. M. Brown & Co. From a judgment tract. All men are presumed to know the

for plaintiffs, defendants appeal. Reversed. law, and no one will be heard to plead igno.

The ground of the demurrer was that the rance of it.

complaint failed to aver that plaintiffs were According to Mrs. Wright's testimony, her

in possession at the time of the alleged first husband, Griffin, died on June 13, 1883,

trespass, and that it failed to aver the time only three or four days before she reached

when the several trespasses were committed. her majority. He died in Florida. She tes- Borders & Carmichael, for appellants. H. tified further that the expense of the trip to L. Martin, for appellees. Florida, together with the removal of his remains to this (Etowab) county, and the in. HARALSON, J. 1. This is an action by terment of them here, consumed the $500 the plaintiffs against the defendants for alborrowed from plaintiff. Now, it would be leged trespasses to their lands begun on the very extraordinary if she paid all these 15th of October, 1889, and continued "on funeral expenses, or any part of them, with- divers other days between that and the in the few days before she became 21 years bringing of this suit," on the 16th of June, old. If she did not, then she utilized and 1890. The Alabama Midland Railway Comconverted a part of plaintiff's money after pany, one of the defendants, as the proofs she attained ber majority. The record is si- show, contracted with the Alabama Terlent as to when she paid out the money. minal & Improvement Company to build and She does, however, testify that she paid all equip its railroad, and the latter company the interest coupons save the last, when they contracted with J. M. Brown & Co. to build matured. They matured severally, four of the road, and they, in turn, contracted with them, on December 1, 1885, 1886, 1887, 1888, Louis McLean to build it. It was shown and the last, or unpaid, one, on March 12, 1890. that under these arrangements the Midland Each represented the amount of accrued in- | Company yielded possession of the road and terest on the $500 borrowed up to the times its building—or that part of it where the they severally matured. If she did not owe injuries complained of in this action are the $500, she did not owe the interest cou- said to have occurred to the terminal compons, for they had no other consideration pany, and it to Brown & Co., and they to

v.14so.no.9426

CON

said McLean, and that at no time in the so negligently do so that they permitted catyear 1889, nor thereafter, before the 21st tle to go through." One of the plaintiffs, of May, 1890, did the Midland Company have on cross-examination, also testified "that op possession of said railroad, or were in any the 5th of October, 1889, and after the right manner engaged in the construction of 'the of way had been granted to the defendant same, and that said McLean, under contract corporation, and the contractor had with said Brown & Co., of date of 14th of structed the stock gaps, and after the acts December, 1888, undertook the building of were committed which occasioned the damthe same under the supervision and direction age, one Craig, chief engineer and agent of of said Brown & Co. There can be no ques- the Alabama Terminal & Improvement Comtion that the position of J. M. Brown & Co. pany, paid plaintiffs the damages which had towards the Midland Company was that of accrued to said 5th day of October, 1899; but an independent contractor. The fact that after that time said hogs and cattle conthe work was to be done subject to the ap- tinued to get into the field and destroy the proval of the chief engineer of the railway crops growing thereon, through the defective company did not alter this relation. For stock gaps and over the fence so thrown Brown & Co.'s negligence, or for that of down by the hands of the parties doing the their subcontractor, Louis McLean, who did work of constructing the road." The defendthe work for them, under their supervision ants moved to exclude the evidence that the and direction, the Midland Company is not stock gaps built on said railroad were deliable. Scarborough v. Railway Co., 94 Ala. fective, on the ground that this suit was 499, 10 South. 316; Railroad Co. v. Chasteen, not in case, for defectively constructing stock 88 Ala. 591, 7 South. 94.

gaps, but was an action quare clausum fre2. The demurrer to the complaint was git; but the court overruled the motion and properly overruled. It alleges the possession allowed the evidence. They also moved to and ownership of the land, which the de- exclude that portion of the plaintiffs' evi. murrer questions; and the trespass com- dence as to the negligence of the boys in plained of was continuous, from day to day, guarding the entrance to the field where as alleged, between the dates mentioned, so the fence was let down, because it was irthat the injury done on any particular day relevant. The plaintiffs' own evidence clearcould not be distinguished from that done ly shows that the injuries complained of on any other day, and what is averred as to arose "after the acts were committed which the injury to the crops must be regarded occasioned the damages," after the stock as in aggravation of the damages. Gould, gaps had been constructed, and after the Pl. c. 111, 88 87, 89; Bonnelli V. Bowen, fences had been let down and not properly (Miss.) 11 South. 791.

guarded; that these damages had been set3. It is the general rule, well settled by tled for and paid to plaintiffs up to the 5th the decisions of this court, that if a tort be of October, 1889, before which date the acts intentionally committed, with force, the im- of trespass on said lands, if done at all, had mediate consequence of which is injury, tres- been committed. The complaint in this case pass is the appropriate remedy; that trespass is for damages accruing to said crops from lies to recover damages for an injury which the 15th day of October, 1889, to the 16th is the direct and primary and inevitable re- day of June, 1890,-the date of the comsult of gross or reckless carelessness, but it mencement of this suit. From this evidence the injury proceeds from mere negligence, it appears that the acts of forcible trespass and is not the immediate consequence of the alleged to have been committed occurred tort, and, though proximate, is secondary prior to the 5th of October, 1889; that plainand consequential, and is not the necessary tiffs had been compensated for these; that result of the negligence, an action on the this suit is for other damages, alleged to case, and not trespass, is the proper remedy. have accrued on and after the 15th of OcRailroad Co. v. Harris, 67 Ala. 6; Pruitt v. tober of that year, and which were not the Ellington, 59 Ala. 454; Railroad Co. v. Webb, immediate, direct, and primary result of the 49 Ala. 240; Bell v. Troy, 35 Ala. 184; 3 alleged tort, but the remote, secondary, and Brick. Dig. 773. The evidence of the plain- consequential result thereof. It further aptiffs showed that a right of way had been pears, also, that defendants, or such of them granted by the owner of the lands, under as constructed said roadbed, had the right of whom plaintiffs were holding possession, to way on and through said lands, to construct the Alabama Midland Railway Company, said roadbed; that they committed no forciover and through the lands described in the ble trespass on going thereon for such purcomplaint, and that said railway was built poses, and none other are shown; and that on said right of way. And the plaintiffs the damages to plaintiffs' crops, if any were themselves “testified that in constructing committed, arose from a breach of duty the road along the right of way, which had which the parties entering on said lands been granted to the railroad company, the owed to plaintiffs,-to exercise their right parties engaged in building it were obliged of entry in a manner not to injure them. to let down the fence, and that they placed It is a plain case of alleged injury arising boys to guard the entrance to the field, where from a breach of duty while in the exercise the fence was let down, and that they would of a lawful right. Authorities supra; Wil

com

kinson v. Moseley, 18 Ala. 288; Insurance Co. be supposed to have given rise to this count v. Randall, 74 Ala. 170. The evidence in- is section 3739 of the Criminal Code of 1886, troduced against defendants' objection tend- and is in the following words: “Any person ed to support an action on the case, and not who has carnal knowledge of any female untrespass, and ought to have been excluded. der ten years of age, or abuses such female And it may be said of the evidence, gen- in the attempt to have carnal knowledge of erally,this action being in form for a for- her, must, on conviction, be punished by cible trespass,-that it does not sustain it, death, or by imprisonment in the penitenbut it does show that, if the plaintiffs have tiary for life." The count is wholly insuffany cause of action, it is in case.

cient under this section of the Code. We 4. We have already stated that it appears may be pardoned for saying, in passing, that, the defendant corporation, the Alabama when the indictment is under this section of Midland Railway Company, was not in the the Code, neither violence used or threatened, the possession of the road during the time nor the consent of the female, vel non, is a of its building, nor engaged in any manner material ingredient of the offense. A child in its construction. If plaintiffs bave any under 10 years of age is incapable of giving cause of action for the grievances

consent, as this section clearly treats the subplained of, it is against said J. M. Brown & ject. Moreover, the proof entirely failed to Co. and Louis McLean, one or both. It ought establish such case. He neither had carnal to be stated in this connection, also, that knowledge of the child, nor did he abuse or there is an entire absence in the record of injure her in any attempt to have such carnał any proof tending to show the value of the knowledge. crops alleged to have been injured and de- Section 3736 of the Code declares the punstroyed.

ishment for rape to be the death penalty, or From the view we have felt constrained to life imprisonment in the penitentiary. Sectake of the case, we are of opinion the gen- tion 3737 defines what is sufficient proof of eral charge, as requested for defendants, the consummation of the act to constitute should have been given, which renders it rape, the other essentials being shown. The unnecessary to pass on the other charges re- first and second counts of the indictment fused. Reversed and remanded.

contain the charge under which defendant was convicted. They are framed under section 3751 of the Code, which declares that

"any person who commits an assault on anTOULLEE v. STATE.

other, with intent to * * ravish * (Supreme Court of Alabama. Dec. 1, 1893.)

myst, on conviction, be punished by imprisATTEMPT TO RAPE-INDICTMENT-EVIDENCE.

onment in the penitentiary for not less than 1. Uoder Crim. Code 1886, 8 3739, providing

two, nor more than twenty years." The inthat any person who "abuses" any female un

dictment conforms to the form prescribed by der 10 years of age. “in an attempt to have car- the Code, (No. 13.) The sole question is Dal knowledge of her," must be punished, etc.,

whether there was testimony sufficient to go an indictment charging that defendant "assaulted" a girl under 10 years of age "with the

to the jury on the inquiry whether, in the intent to carnally know her" is fatally de assault the testimony tends to prove the fective.

defendant made, he intended to commit the 2. On an indictment under Crim. Code 1886, $ 3751, which provides that any person who

crime of rape. The defendant requested the commits an assault on another with intent to court to charge the jury “that under the eviravish must be punished, etc., evidence that dence in this case the jury cannot find the defendant took a girl under 10 years of age by

defendant guilty of assault with intent to the hand, and led her into the woods, and laid her down, indicates no intent to ravish, and is

rape.” This charge was asked in writing, insufficient to go to the jury.

was refused by the court, and defendant ex

cepted. Although a child under 10 years of Appeal from city court of Mobile; O. J.

age is incapable of giving her consent to coSemmes, Judge.

habitation, and, as a consequence, any co Louis Toullee, alias Louis Toulet, was con

habitation or attempted cohabitation with victed of an assault with intent to ravish,

such child must be treated as if it were perand appeals. Reversed.

petrated or attempted without her legal conW. S. Reese and Sam Brown, for appel- sent, yet we do not think it was the intenlant. Wm. L. Martin, Atty. Gen., for the

tion of the law-making power to constitute State.

the same a rape, in the absence of force or

violence in the act done or attempt made. STONE, C. J. The third count of the in- In other words, if the act done or attempted dictment in this case charges that the defend- be not against consent,—that is, be not acapt assaulted "Mamie Riley, a girl under the complished or attempted against consent, age of 10 years, with the intent to carnally and with violence, actual or constructive, --know her.” It contains no averment that the then the case falls within section 3739 of the defendant succeeded in having carnal knowl- Code, and must be governed by its proedge of her, or that he abused her in an at- visions. It is not an assault with intent to tempt to have such carnal knowledge. Our commit a rape, under section 3751 of the statute bearing on the question which may Code. Our statute, section 3739 of the Coue.

was

was evidently intended to take the place and fully proven, he is guilty of the offense cover the ground of English statutes which charged against him. In the case of Rex have long been of force, and have been many v. Lloyd, 32 E. C. L. 633, it was held that, times construed. It has been uniformly held in order to find a prisoner guilty of an asthat if the girl consents, even though she be sault with intent to commit rape, the jury under 10 years of age, the act is not a rape. must be satisfied that the prisoner, when It is only a statutory crime,-a felony or he laid hold of the prosecutrix, not only misdemeanor, as the statute may prescribe. desired to gratify his passions upon her perQueen v. Read, 1 Denison, Cr. Cas. 385; Reg. son, but that he intended to do so at all v. Martin, 9 Car. & P. 213; Reg. v. Mehegan, events, and notwithstanding any resistance 7 Cox, Crim. Cas. 145; Reg. v. Johnson, Leigh on her part. • It is certain that the & C. 632; Queen v. Beale, L. R. 1 Cr. Cas. accused in this case used no force, nor is it 10; 4 Bl. Comm. marg. p. 257. The author- probable, from all the surrounding circumities on this question, however, are not en- stances, that the idea of force entered into tirely uniform. See 19 Amer. & Eng. Enc. his original design; and, in case his in. Law, 948, 919. But the question of consent tention was to effect his purpose while she is not the turning point in this case.

was asleep, the authority cited shows that There can be no question, if the testimony he is not guilty of the offense charged against of the little girl, Mamie Riley, be believed, that him. We do not think that the testimony the defendant committed an assault upon

evinced that settled purpose to use force, her. Taking her by the hand and leading and to act in disregard of the will of the her into the woods, laying her down, etc., prosecutrix, which the law contemplates as constituted an assault. The attendant cir- essential to constitute the crime.” It was cumstances must determine its aggravation, added: “We are satisfied, from a full view or the contrary. The graver inquiry is, had of the whole case, that the judgment of the he the intent to commit a rape upon her, and

circuit court was erroneous, and that it ought there any evidence of such intent? to be reversed." The effect of the ruling “Without force, actual or constructive, there was that there was no testimony to submit can be no rape. It must be shown that the to the jury on the inquiry of intent to ravish prisoner intended to gratify his passion at all the prosecutrix, because there was no testievents, and notwithstanding the utmost re- mony of any attempt or intent to employ sistance on the part of the woman. The violence or force to accomplish his object. force used must be sufficient to accomplish In Sanford v. State, 12 Tex. App. 196, it his purpose, but need not be such as to was decided that "a conviction of assault create a reasonable apprehension of death. with intent to commit rape by force is not If the woman submits from terror, or the warranted by proof that the defendant, dread of greater violence caused by threats,

against the will of the female, indecently the intimidation becomes equivalent to force.” fondled her person with the intent to induce 19 Amer. & Eng. Enc. Law, 950. In the her thereby to submit to his embrace. It case of Charles v. State, 11 Ark. 389, the de- must appear that his intent was to accomfendant was indicted and convicted of an plish his purpose by force and against her assault with intent to ravish a young girl

will." The intended victim in that case within the age of puberty. The girl was was a child 12 years old, and the liberties sleeping on a bed spread out on the floor, in taken with her person were much greater company with other young girls. We will than were taken in the case we have in state what took place in the language of the

hand. The facts were held to be insufwitness: “There were two doors to the ficient to uphold the conviction. In State v. room. About 4 o'clock next morning I was Massey, 86 N. C. 658,-a trial for assault awakened by some one who took hold of my with intent to commit a rape,-“it appeared shoulder and tried to turn me over. I was that the prosecutrix, while going from her lying with my face to my bed mates. The home to her mother-in-law's, about a mile person made an effort to get over me; I distant, was carrying with her a child in a threw my hand over the person, and found baby carriage and accompanied by a boy six him to be a man partly undressed. I found years of age. Soon after passing defendant's the portion of the undressed person to be house, she heard defendant, (who was about that portion of which I cannot decently seventy-five yards off.) say, 'Halt! I intend speak. I then raised the alarm and called to ride in the carriage. If you don't halt, for help.

When the person took I'll kill you when I get hold of you.' She hold of my person it was not in a rough, ran and called for her mother-in-law, defendbut rude, manner. In attempting to turn ant running after her, and telling her to me over, the person took hold of my knee, stop, until she got to the gate, where she when he attempted to get over me and do met another woman, to whom she related violence.” It will be noted that, if this the matter. Held, that the evidence is not testimony be believed, it presented a strong sufficient to warrant a conviction of the case of intention to cohabit with the young intent charged." See, also, Rex v. Lloyd, 32 girl. In commenting on it, the court said: E. C. L. 633; Rex v. Nichol, Russ. & R. 130; "The question now to be determined is Com. v. Fields, 4 Leigh, 618. In the case we whether, admitting all these facts to be have in hand the accused employed persua

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