The

nor the ratification is shown in the record. It is desirable that such issue as this should be distinctly shown in the pleadings. notes and mortgage were given to secure the repayment of money borrowed. The loan was on five years' time, and one note was given for the principal, made payable at the end of five years. Coupon interest notes were given, payable yearly. The last interest coupon matured March 12, 1890. All the notes were secured by the mortgage. The mortgagor paid the interest for the first four years on the maturity of the several coupons, but refused to pay the principal and the fifth coupon. Thereupon the present

suit was instituted.

The defendant, Mrs. Wright, testified "that she paid the plaintiff all of the coupons mentioned in the mortgage as they matured, with the exception of the one maturing on the 12th day of March, 1890, introduced in evidence by plaintiff. That she did not know until January, 1890, when she was so informed by a lawyer, that the mortgage was invalid, and that she could avoid the payment of it, because she was a minor when the same was executed; and that, after she learned that, she decided not to pay, and never paid anything after she knew she was not bound by the contract." Plaintiff objected to that part of the testimony of this witness in which she stated her want of knowledge of the result of her acts in making payments on said debt until January, 1890; the objection was overruled, and an exception reserved. The court gave judgment for defendant, and plaintiff excepted. The contract being entered into by Mrs. Wright before she was 21 years old, the question arises, was her want of knowledge that she had power to repudiate the obligation a sufficient excuse for the payments of interest on the loan, which she testifies she made? Does her ignorance of her legal right to renounce the contract on attaining her majority arm her with the power to exercise that right whenever she is informed she possesses it; and this, notwithstanding any acts she may have done, pointing to ratification anterior to receiving such information? There are decisions which answer this inquiry in the affirmative, and this court, in Flexner v. Dickerson, 72 Ala. 318, speaking of ratification of a contract entered into during infancy, said it could be done "only by an express confirmation, or new promise voluntarily and deliberately made, by the infant upon coming of age, and with knowledge that he is not legally liable." We suppose this decision had a material bearing in the decision of the case we have in hand. The assertion that to be binding the act claimed as ratification must be done "with knowledge that he is not legally liable" was dictum, for the opinion had asserted that "the record contains no evidence tending to

prove a ratification by the defendants of the contract of renting." Still there are authorities, English and American, which sustain that dictum. There are two lines of decisions bearing on the inquiry of what acts of ratification of an infant's contract, done after reaching majority, will preclude him from interposing the defense of infancy. Following the older dicta on the subject, one of these lines "holds that an infant's contract imposes no legal liability on him until ratified after full age has been attained, and such ratification must have all the elements of a new contract, except a new consideration. There must be an express promise, or such acts, after the infant becomes of age, as practically lead to the conclusion that he intended to ratify the contract, and pay the debt. Such a debt is regarded as standing on the same footing as a debt that has been destroyed by a discharge in bankruptcy, and not as one that is barred by the statute of limitations." 10 Amer. & Eng. Enc. Law, 644, 645; Edmunds v. Mister, 58 Miss. 765; Tibbetts v. Gerrish, 25 N. H. 41; Wilcox v. Roath, 12 Conn. 550. See, also, Tyler, Inf. pp. 84-87, and authorities; Bish. Cont. § 943; Thrupp v. Fielder, 2 Esp. 628; Thompson v. Lay, 4 Pick. 48; Benham v. Bishop, 9 Conn. 330; Goodsell v. Myers, 3 Wend. 479; Hinely v. Margaritz, 3 Pa. St. 428; Ford v. Phillips, 1 Pick, 202; Hale v. Gerrish, 8 N. H. 374; Thing v. Libbey, 16 Me. 55; Turner v. Gaither, 83 N. C. 357. So, there is a strong array of authorities in favor of this severer and more exacting rule. "The other line of cases lays down the rule that the contracts of infants are only suspended during minority, and may be ratified on full age, upon the same principles, and for the same reasons, as a debt barred by the statute of limitations may be revived. There fore a new promise, positive and precise, equivalent to a new contract, is not essential, but, as the words 'ratify' and 'confirm' necessarily import that there is something in existence to which ratification or confirmation can attach, any words or acts by the infant after arriving at full age that clearly recognize the existence of the contract as a binding obligation, will constitute a ratification." 10 Amer. & Eng. Enc. Law, 645, 646. This latter statement of the rule is supported by a respectable array of authorlties, and the author expresses his approval of it in the following language: "This latter rule seems more consonant with principle, and with the tendency of the modern cases holding that the infant is sufficiently protected by a right to avoid his contracts, which are valid until avoided." Henry v. Root, 33 N. Y. 526. Speaking of the alleged principle that to constitute a binding ratification it is essential that the promise or act should be given or done with knowledge that he is not legally liable on the contract, this author, on page 648, says: "It is not necessary to the validity of the ratification that

the person lately an infant should be aware of his right to avoid his contract. Ignorance of the law gives him no excuse." To this he cites several authorities, and among them Whart. Cont. § 57, who speaks in strong condemnation of the alleged doctrine. To the same effect, see 7 Wait, Act. & Def. 138; 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 we have not adopted the exacting rule, but have held that all contracts of infants, with a very limited exception, are simply voidable, not void. Jefford v. Ringgold, 6 Ala. 544; Thomason v. Boyd, 13 Ala. 419; West v. Penny, 16 Ala. 186; Shropshire v. Burns, 46 Ala. 108; Philpot v. Bingham, 55 Ala. 435; Flexner v. Dickerson, 72 Ala. 318; Sharpe v. Robertson, 76 Ala. 343. We think we better carry into effect the policy declared in our decisions and better subserve the purposes of justice by holding, as we do, that contracts of infants, such as we have in hand, are simply voidable, not void, by reason of the infancy; that it is a defense he may or may not make, at his option; that an express promise to pay is not the only method by which the defense may be precluded, but any other declaration or act which satisfies the trying body that the liability or contract duty is still binding, and intended to be complied with, if voluntarily done, or entered into, completely neutralizes the defense of infancy; and that it is not necessary to a binding ratification that the party sought to be charged knew, at the time the promise was made, or act done, that he or she had the right to avoid the contract. All men are presumed to know the law, and no one will be heard to plead ignorance of it.

According to Mrs. Wright's testimony, her first husband, Griffin, died on June 13, 1885, only three or four days before she reached her majority. He died in Florida. She testified further that the expense of the trip to Florida, together with the removal of his remains to this (Etowah) county, and the interment of them here, consumed the $500 borrowed from plaintiff. Now, it would be very extraordinary if she paid all these funeral expenses, or any part of them, within the few days before she became 21 years old. If she did not, then she utilized and converted a part of plaintiff's money after she attained her majority. The record is silent as to when she paid out the money. She does, however, testify that she paid all the interest coupons save the last, when they matured. They matured severally, four of them, on December 1, 1885, 1886, 1887, 1888, and the last, or unpaid, one, on March 12, 1890. Each represented the amount of accrued interest on the $500 borrowed up to the times they severally matured. If she did not owe the $500, she did not owe the interest coupons, for they had no other consideration v.14so.no.9-26

than the forbearance of that debt. Each payment was an acknowledgment that the contract was. binding. Defendant had ratified the voidable contract, and the judgment ought to have been in favor of the plaintiff. We have not the means of rendering a proper judgment here. Reversed and remanded.

ALABAMA MIDLAND RY. CO. et al. v. MARTIN et al.

(Supreme Court of Alabama. Dec. 21, 1893.) TRESPASS-INDEPENDENT CONTRACTORS-DEMUR

RER-EVIDENCE.

1. Where a railroad company yields possession of its premises to a company which contracts to build a railroad thereon, and the latter company lets the contract to a third par ty, the first company is not liable for trespasses committed by the last contractor on adjacent lands, and it is immaterial that the work is to be done subject to the approval of the first company's engineer.

2. Where a complaint alleges trespasses to have been continuous, from day to day, during a certain time, a demurrer on the ground that it fails to state the time when the several trespasses were committed is properly overruled.

3. In trespass q. c. f. for injuries done by railroad contractors to lands over which the railroad company has a right of way, evidence of injuries caused by constructing defective stock gaps, in consequence of which hogs and cattle went upon the land adjoining the right of way, is inadmissible, since the proper remedy for such negligent acts is case, and not trespass. Appeal from circuit court, Dale county; J. M. Carmichael, Judge.

Trespass by W. E. Martin & Bro. against the Alabama Midland Railway Company and J. M. Brown & Co. From a judgment for plaintiffs, defendants appeal. Reversed.

The ground of the demurrer was that the complaint failed to aver that plaintiffs were in possession at the time of the alleged trespass, and that it failed to aver the time when the several trespasses were committed. Borders & Carmichael, for appellants. H. L. Martin, for appellees.

HARALSON, J. 1. This is an action by the plaintiffs against the defendants for alleged trespasses to their lands begun on the 15th of October, 1889, and continued "on divers other days between that and the bringing of this suit," on the 16th of June, 1890. The Alabama Midland Railway Company, one of the defendants, as the proofs show, contracted with the Alabama Terminal & Improvement Company to build and equip its railroad, and the latter company contracted with J. M. Brown & Co. to build the road, and they, in turn, contracted with Louis McLean to build it. It was shown that under these arrangements the Midland Company yielded possession of the road and its building-or that part of it where the injuries complained of in this action are said to have occurred-to the terminal company, and it to Brown & Co., and they to

said McLean, and that at no time in the year 1889, nor thereafter, before the 21st of May, 1890, did the Midland Company have possession of said railroad, or were in any manner engaged in the construction of the same, and that said McLean, under contract with said Brown & Co., of date of 14th of December, 1888, undertook the building of the same under the supervision and direction of said Brown & Co. There can be no question that the position of J. M. Brown & Co. towards the Midland Company was that of an independent contractor. The fact that the work was to be done subject to the approval of the chief engineer of the railway company did not alter this relation. For Brown & Co.'s negligence, or for that of their subcontractor, Louis McLean, who did the work for them, under their supervision and direction, the Midland Company is not liable. Scarborough v. Railway Co., 94 Ala. 499, 10 South. 316; Railroad Co. v. Chasteen, SS Ala. 591, 7 South. 94.

2. The demurrer to the complaint was properly overruled. It alleges the possession and ownership of the land, which the demurrer questions; and the trespass complained of was continuous, from day to day, as alleged, between the dates mentioned, so that the injury done on any particular day could not be distinguished from that done on any other day, and what is averred as to the injury to the crops must be regarded as in aggravation of the damages. Gould, Pl. c. 111, §§ 87, 89; Bonnelli v. Bowen, (Miss.) 11 South. 791.

3. It is the general rule, well settled by the decisions of this court, that if a tort be intentionally committed, with force, the immediate consequence of which is injury, trespass is the appropriate remedy; that trespass lies to recover damages for an injury which is the direct and primary and inevitable result of gross or reckless carelessness, but if the injury proceeds from mere negligence, and is not the immediate consequence of the tort, and, though proximate, is secondary and consequential, and is not the necessary result of the negligence, an action on the case, and not trespass, is the proper remedy. Railroad Co. v. Harris, 67 Ala. 6; Pruitt v. Ellington, 59 Ala. 454; Railroad Co. v. Webb, 49 Ala. 240; Bell v. Troy, 35 Ala. 184; 3 Brick. Dig. 773. The evidence of the plaintiffs showed that a right of way had been granted by the owner of the lands, under whom plaintiffs were holding possession, to the Alabama Midland Railway Company, over and through the lands described in the complaint, and that said railway was built on said right of way. And the plaintiffs themselves "testified that in constructing the road along the right of way, which had been granted to the railroad company, the parties engaged in building it were obliged to let down the fence, and that they placed boys to guard the entrance to the field, where the fence was let down, and that they would

so negligently do so that they permitted cattle to go through." One of the plaintiffs, on cross-examination, also testified "that on the 5th of October, 1889, and after the right of way had been granted to the defendant corporation, and the contractor had constructed the stock gaps, and after the acts were committed which occasioned the damage, one Craig, chief engineer and agent of the Alabama Terminal & Improvement Company, paid plaintiffs the damages which had accrued to said 5th day of October, 1889; but after that time said hogs and cattle continued to get into the field and destroy the crops growing thereon, through the defective stock gaps and over the fence so thrown down by the hands of the parties doing the work of constructing the road." The defendants moved to exclude the evidence that the stock gaps built on said railroad were defective, on the ground that this suit was not in case, for defectively constructing stock gaps, but was an action quare clausum fregit; but the court overruled the motion and allowed the evidence. They also moved to exclude that portion of the plaintiffs' evidence as to the negligence of the boys in guarding the entrance to the field where the fence was let down, because it was ir relevant. The plaintiffs' own evidence clear. ly shows that the injuries complained of arose "after the acts were committed which occasioned the damages," after the stock gaps had been constructed, and after the fences had been let down and not properly guarded; that these damages had been settled for and paid to plaintiffs up to the 5th of October, 1889, before which date the acts of trespass on said lands, if done at all, had been committed. The complaint in this case is for damages accruing to said crops from the 15th day of October, 1889, to the 16th day of June, 1890,-the date of the commencement of this suit. From this evidence it appears that the acts of forcible trespass alleged to have been committed occurred prior to the 5th of October, 1889; that plaintiffs had been compensated for these; that this suit is for other damages, alleged to have accrued on and after the 15th of Oc tober of that year, and which were not the immediate, direct, and primary result of the alleged tort, but the remote, secondary, and consequential result thereof. It further appears, also, that defendants, or such of them as constructed said roadbed, had the right of way on and through said lands, to construct said roadbed; that they committed no forcible trespass on going thereon for such purposes, and none other are shown; and that the damages to plaintiffs' crops, if any were committed, arose from a breach of duty which the parties entering on said lands owed to plaintiffs,-to exercise their right of entry in a manner not to injure them. It is a plain case of alleged injury arising from a breach of duty while in the exercise of a lawful right. Authorities supra; Wil

kinson v. Moseley, 18 Ala. 288; Insurance Co. v. Randall, 74 Ala. 170. The evidence introduced against defendants' objection tended to support an action on the case, and not trespass, and ought to have been excluded. And it may be said of the evidence, generally, this action being in form for a forcible trespass,-that it does not sustain it, but it does show that, if the plaintiffs have any cause of action, it is in case.

4. We have already stated that it appears the defendant corporation, the Alabama Midland Railway Company, was not in the the possession of the road during the time of its building, nor engaged in any manner in its construction. If plaintiffs have any cause of action for the grievances complained of, it is against said J. M. Brown & Co. and Louis McLean, one or both. It ought to be stated in this connection, also, that there is an entire absence in the record of any proof tending to show the value of the crops alleged to have been injured and destroyed.

From the view we have felt constrained to take of the case, we are of opinion the general charge, as requested for defendants, should have been given, which renders it unnecessary to pass on the other charges refused. Reversed and remanded.

TOULLEE v. STATE. (Supreme Court of Alabama. Dec. 1, 1893.) ATTEMPT TO RAPE-INDICTMENT-EVIDENCE.

1. Under Crim. Code 1886, § 3739, providing that any person who "abuses" any female under 10 years of age. "in an attempt to have carnal knowledge of her," must be punished, etc., an indictment charging that defendant "assaulted" a girl under 10 years of age "with the intent to carnally know her" is fatally defective.

2. On an indictment under Crim. Code 1886, § 3751, which provides that any person who commits an assault on another with intent to ravish must be punished, etc., evidence that defendant took a girl under 10 years of age by the hand, and led her into the woods, and laid her down, indicates no intent to ravish, and is insufficient to go to the jury.

Appeal from city court of Mobile; O. J. Semmes, Judge.

Louis Toullee, alias Louis Toulet, was convicted of an assault with intent to ravish, and appeals. Reversed.

W. S. Reese and Sam Brown, for appellant. Wm. L. Martin, Atty. Gen., for the State.

STONE, C. J. The third count of the indictment in this case charges that the defendant assaulted "Mamie Riley, a girl under the age of 10 years, with the intent to carnally know her." It contains no averment that the defendant succeeded in having carnal knowledge of her, or that he abused her in an attempt to have such carnal knowledge. Our statute bearing on the question which may

be supposed to have given rise to this count is section 3739 of the Criminal Code of 1886, and is in the following words: "Any person who has carnal knowledge of any female under ten years of age, or abuses such female in the attempt to have carnal knowledge of her, must, on conviction, be punished by death, or by imprisonment in the penitentiary for life." The count is wholly insufficient under this section of the Code. We may be pardoned for saying, in passing, that, when the indictment is under this section of the Code, neither violence used or threatened, nor the consent of the female, vel non, is a material ingredient of the offense. A child under 10 years of age is incapable of giving consent, as this section clearly treats the subject. Moreover, the proof entirely failed to establish such case. He neither had carnal knowledge of the child, nor did he abuse or injure her in any attempt to have such carnal knowledge.

Section 3736 of the Code declares the punishment for rape to be the death penalty, or life imprisonment in the penitentiary. Section 3737 defines what is sufficient proof of the consummation of the act to constitute rape, the other essentials being shown. The first and second counts of the indictment 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 another, with intent to * * ravish * must, on conviction, be punished by imprisonment in the penitentiary for not less than two, nor more than twenty years." The indictment conforms to the form prescribed by the Code, (No. 13.) The sole question is whether there was testimony sufficient to go to the jury on the inquiry whether, in the assault the testimony tends to prove the defendant made, he intended to commit the crime of rape. The defendant requested the court to charge the jury "that under the evidence in this case the jury cannot find the defendant guilty of assault with intent to rape." This charge was asked in writing, was refused by the court, and defendant excepted. Although a child under 10 years of age is incapable of giving her consent to cohabitation, and, as a consequence, any cohabitation or attempted cohabitation with such child must be treated as if it were perpetrated or attempted without her legal consent, yet we do not think it was the intention of the law-making power to constitute the same a rape, in the absence of force or violence in the act done or attempt made. In other words, if the act done or attempted be not against consent,-that is, be not accomplished or attempted against consent, and with violence, actual or constructive,then the case falls within section 3739 of the Code, and must be governed by its provisions. It is not an assault with intent to commit a rape, under section 3751 of the Code. Our statute, section 3739 of the Code,

was evidently intended to take the place and cover the ground of English statutes which have long been of force, and have been many times construed. It has been uniformly held that if the girl consents, even though she be under 10 years of age, the act is not a rape. It is only a statutory crime,-a felony or misdemeanor, as the statute may prescribe. Queen v. Read, 1 Denison, Cr. Cas. 385; Reg. v. Martin, 9 Car. & P. 213; Reg. v. Mehegan, 7 Cox, Crim. Cas. 145; Reg. v. Johnson, Leigh & C. 632; Queen v. Beale, L. R. 1 Cr. Cas. 10; 4 Bl. Comm. marg. p. 257. The authorities on this question, however, are not entirely uniform. See 19 Amer. & Eng. Enc. Law, 948, 949. But the question of consent is not the turning point in this case.

There can be no question, if the testimony of the little girl, Mamie Riley, be believed, that the defendant committed an assault upon her. Taking her by the hand and leading her into the woods, laying her down, etc., constituted an assault. The attendant circumstances must determine its aggravation, or the contrary. The graver inquiry is, had he the intent to commit a rape upon her, and was there any evidence of such intent? "Without force, actual or constructive, there can be no rape. It must be shown that the prisoner intended to gratify his passion at all events, and notwithstanding the utmost resistance on the part of the woman. The force used must be sufficient to accomplish his purpose, but need not be such as to create a reasonable apprehension of death. If the woman submits from terror, or the dread of greater violence caused by threats, the intimidation becomes equivalent to force." 19 Amer. & Eng. Enc. Law, 950. In the case of Charles v. State, 11 Ark. 389, the defendant was indicted and convicted of an assault with intent to ravish a young girl within the age of puberty. The girl was sleeping on a bed spread out on the floor, in company with other young girls. We will state what took place in the language of the witness: "There were two doors to the room. About 4 o'clock next morning I was awakened by some one who took hold of my shoulder and tried to turn me over. I was lying with my face to my bed mates. The person made an effort to get over me; I threw my hand over the person, and found him to be a man partly undressed. I found the portion of the undressed person to be that portion of which I cannot decently speak. I then raised the alarm and called for help. * * 2j When the person took hold of my person it was not in a rough, but rude, manner. In attempting to turn me over, the person took hold of my knee, when he attempted to get over me and do violence." It will be noted that, if this testimony be believed, it presented a strong case of intention to cohabit with the young girl. In commenting on it, the court said: "The question now to be determined is whether, admitting all these facts to be

fully proven, he is guilty of the offense charged against him. In the case of Rex v. Lloyd, 32 E. C. L. 633, it was held that, in order to find a prisoner guilty of an assault with intent to commit rape, the jury must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. *** It is certain that the accused in this case used no force, nor is it probable, from all the surrounding circumstances, that the idea of force entered into his original design; and, in case his intention was to effect his purpose while she was asleep, the authority cited shows that he is not guilty of the offense charged against him. We do not think that the testimony evinced that settled purpose to use force, and to act in disregard of the will of the prosecutrix, which the law contemplates as essential to constitute the crime." It was added: "We are satisfied, from a full view of the whole case, that the judgment of the circuit court was erroneous, and that it ought to be reversed." The effect of the ruling was that there was no testimony to submit to the jury on the inquiry of intent to ravish the prosecutrix, because there was no testimony of any attempt or intent to employ violence or force to accomplish his object. In Sanford v. State, 12 Tex. App. 196, it was decided that "a conviction of assault with intent to commit rape by force is not warranted by proof that the defendant, against the will of the female, indecently fondled her person with the intent to induce her thereby to submit to his embrace. It must appear that his intent was to accomplish his purpose by force and against her will." The intended victim in that case was a child 12 years old, and the liberties taken with her person were much greater than were taken in the case we have in hand. The facts were held to be insufficient to uphold the conviction. In State v. Massey, 86 N. C. 658,-a trial for assault with intent to commit a rape,-"it appeared that the prosecutrix, while going from her home to her mother-in-law's, about a mile distant, was carrying with her a child in a baby carriage and accompanied by a boy six years of age. Soon after passing defendant's house, she heard defendant, (who was about seventy-five yards off,) say, 'Halt! I intend to ride in the carriage. If you don't halt, I'll kill you when I get hold of you.' She ran and called for her mother-in-law, defendant running after her, and telling her to stop, until she got to the gate, where she met another woman, to whom she related the matter. Held, that the evidence is not sufficient to warrant a conviction of the intent charged." See, also, Rex v. Lloyd, 32 E. C. L. 633; Rex v. Nichol, Russ. & R. 130; Com. v. Fields, 4 Leigh, 648. In the case we have in hand the accused employed persua