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sion to induce the little girl to do an immodest and improper act, while there was no testimony of violence, force, or threats used or made by him If there was any intention on his part to cohabit with her, it is left to inference, as his acts, though indecent and improper, did not clearly and unmistakably indicate such purpose. Neither by word nor act of his is it shown that, if such was his desire, his purpose was to accomplish it at all events, regardless of opposition from her. We hold there was no evidence of an intent to ravish which justified the submission of its sufficiency to the jury. The general charge asked for defendant ought to have been given.

The third charge asked by defendant is identical with a charge asked and refused in Carpenter v. State, (Ala.) 13 South. 534. We held the court did not err in refusing that charge. It is obviously obscure, difficult to be understood, and calculated to confuse, if not to mislead, the jury. It was rightly refused. The judgment of the city court is reversed, and the cause remanded. The defendant will remain in custody until discharged by due course of law. Reversed and remanded.

MCLAREN v. ALABAMA M. RY. CO. (Supreme Court of Alabama. Dec. 20, 1893.) INJURY TO PASSENGER BOARDING RAILROAD TRAIN CONTRIBUTORY NEGLIGENCE - RULINGS ON EVIDENCE.

1. In an action for personal injuries sustained in striking against a high platform while boarding a train, evidence that plaintiff stood near by for two minutes while the train was waiting; that the conductor gave the signal "All aboard" before the train started; that when plaintiff attempted to board the train it was moving several miles per hour; that he

knew of the dangerous proximity of the plat form, but did not "have the matter in his mind at the time;" and that the conductor had often warned him not to board a moving train,-shows that plaintiff was negligent.

2. Where, in an action for personal injuries, the evidence shows that plaintiff was negligent. he cannot complain of error in the admission and exclusion of evidence which could not have affected the result.

Appeal from circuit court, Crenshaw county; John R. Tyson, Judge.

Action by John C. McLaren against the Alabama Midland Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

I. H. Parks, for appellant. A. A. Wiley and J. D. Gardner, for appellee.

COLEMAN, J. The action was to recover damages for personal injuries. There are three assignments of error, two of which relate to the ruling of the court upon the admission and exclusion of testimony, and one to the charge of the court, which directed the jury to find the issue for the defendant. The facts show a clear case of contributory negligence on the part of the plaintiff; and

the result would be the same with the evidence excluded, to the introduction of which an objection was reserved, or with the evidence admitted, which was excluded against the objection of the plaintiff.

The negligence complained of was the construction of a platform so near the road track that plaintiff, while upon the steps attempting to board the train as a passenger, was brought violently against the edge of the platform and injured. The complaint also avers that the train did not remain at the depot a sufficient length of time to enable plaintiff to get aboard the train with safety. The evidence is without conflict that the train gave all parties ample time to get aboard; that after plaintiff had completed the delivery of his freight for shipment he stood talking with the witness Campbell, within 20 steps of the train, on his private business, for two minutes,-a longer time than was necessary for him to have safely got on the train; that the conductor gave the signal "All aboard" before the train was moved, and he had ample time then to have taken passage. True, plaintiff says he is hard of hearing, and did not hear the conductor; but a number of disinterested witnesses testified they heard him, including plaintiff's own witness. The witness Campbell, to whom plaintiff was talking at the time, heard the conductor call out, "All aboard." The space between the platform and the car was 934 inches. The injury occurred in the open daylight. Plaintiff testified himself that he "had lived at the station for five years, knew of the location and construction of the platform, of the dangerous proximity of said platform to the road crossing, its nearness to trains when on the track, standing or moving. but did not have the matter in his mind at that time, as it was

occupied with other things." We have italicized a part of plaintiff's evidence, as it brings his case squarely within the rule declared in Railroad Co. v. Hall, 87 Ala. 719, 720, 6 South. 277. The evidence shows conclusively, and plaintiff admits in his own testimony, that at the time he attempted to board the train it was moving forward at the rate of "two or three miles an hour, or faster," while others fix the speed at five or six miles per hour. The evidence shows conclusively that rather than enter the second car, which was convenient, or walk a few steps to where the passenger car was standing, plaintiff voluntarily preferred to wait until the car moved up to where he was standing, feeling confident that he could step. safely on while it was moving forward. It seems that he had pursued this course frequently at other times, against the warning and protest of the conductor. We have no reason to doubt the truth of the statement of the witness who says that, immediately after plaintiff was injured, he said: “I thought I was young and supple enough to board a moving train, but find I am mistak

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en. I find I am growing old." The truth of this evidence is not disputed. The danger of the attempt was obvious. The risk was assumed voluntarily, without the knowledge of the defendant, when there was no necessity for it, but purely as a matter of preference. Banking Co. V. Miles, 88 Ala. 256, 6 South. 696; Railroad Co. v. Stewart, 91 Ala. 422, 8 South. 708; Ricketts v. Railroad Co., 85 Ala. 600, 5 South. 353. Affirmed.

KNIGHT v. BRADLEY. (Supreme Court of Alabama. Dec. 20, 1893.) PRESUMPTIONS ON APPEAL-DEFECTIVE RECORD.

Where, on appeal in an action on a note, no pleas appear of record, but the judgment entry recites that issue was joined, and it appears that evidence was adduced which was admissible either under a plea of payment or under an issue of set-off, it will be presumed that the pleadings presented the plea of payment alone, that issue being less prejudicial to plaintiff.

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Action on a note by Thomas D. Knight against W. S. Bradley. From a judgment for defendant, plaintiff appeals. Reversed. Arrington & Graham, for appellant.

MCCLELLAN, J. The appellant was plaintiff below, the action being on a note executed by the defendant, Bradley. No pleas appear of record, but the judgment entry recites that issue was joined. On this state of the record, if it does not appear from the bill of exceptions that other defenses than such as may be made under the general issue were mutually, and without objection, litigated, the presumption is that the general issue only was presented. Under our statute, payment is matter for special plea, and cannot be given in evidence under the general issue. In this case, however, evidence of payment was admitted without objection, and payment vel non was really the issue to which both parties addressed themselves, the only litigated issue, indeed, on the trial. Under these circumstances the further presumption will be indulged that that issue was properly presented by plea. Railroad Co. v. Farmer, (Ala.) 12 South. 86; Railroad Co. v. Burton, (Ala.) 12 South. 88. This doctrine proceeds on the idea that by their course on the trial the parties have consented to the litigation of the issue to which the evidence is directed, and thereby waived the formal interposition of a plea. But the presumption will go no further than is necessary to give effect to this implied consent, or, in other words, it will not be presumed that any other plea than such as would render the course of the trial regular and proper was entered; and where the evidence adduced without objection is admissible equally under either of two special pleas, neither of which

appears by the record, and one is broader in its scope, and, if sustained, more prejudicial to the plaintiff than the other, it will be intended that the issue consented to be tried, though not formally presented, was the more restricted and less prejudicial, because the plaintiff may well and consistently insist that his implied consent extended only to the less hurtful of the two, since that, equally with the other, accommodates the evidence which he has allowed to go in by failing to object to it. This case illustrates the proposition we are endeavoring to declare. Here the evidence which was not competent under the general issue, and which was yet adduced without objection by the plaintiff, was pertinent to either of two issues which might have been regularly presented by special plea, namely, payment and set-off. Having failed to object, and having thus, without objection, litigated an issue to which this evidence was relevant, the plaintiff cannot now be heard to say that no such issue was formally made. That would be inconsistency on his part, and to permit him to speculate on the result of the inquiry; to profit by it if found in his favor, and not to be bound if found against him. But he can consistently say that he consented to try the issue of payment vel non without that defense being specially pleaded, and at the same time that he did not consent to try the issue of set-off, or waive the formal tender of that issue. He might well be content to abide the issue of payment, while unwilling to take the chances, unless forced to do so by plea actually and seasonably filed, of a judgment over against him.

On these considerations, we hold that the plea of payment is to be taken as having been regularly filed in this case, but that it cannot be presumed that set-off was pleaded at all; and there is the more reason for this conclusion in the fact that set-off is in the nature of a cross action, and must, in strictness, be stated with the same particularity essential to a complaint in an original suit. There being no issue of set-off in the case, no cross action seeking a recovery over against the plaintiff,-the trial court erred in giving charge 3, which authorized the jury to return a verdict for excess of payments over the debt claimed. We discover no error in the other instructions excepted to. The judgment is reversed, and the cause remanded.

MORRIS v. GIDDENS. (Supreme Court of Alabama. Dec. 21, 1893.) EJECTMENT-DESCRIPTION OF LAND-FATAL VA

RIANCE.

1. In ejectment to recover "41 acres of land set off of the N. W. 4 of the S. W. 4 of section 2, township 11, range 19," proof that plaintiff is the owner of "41 acres off of the N. and W. side of the N. half of the S. W. 4 of" said section, does not entitle plaintiff to recover.

2. An exception, in a mortgage, of "41 acres off of the N. and W. side of the N. 1⁄2 of S. W. 4 of section 2, township 11, range 19," is void for uncertainty.

Appeal from circuit court, Pike county; John R. Tyson, Judge.

Statutory ejectment by J. C. Giddens against Josiah Morris & Co. and others. From a judgment for plaintiff, defendants appeal. Reversed.

E. P. Morrisett, for appellants. R. L. Harmon and John D. Gardner, for appellee.

MCCLELLAN, J. This is a statutory action in the nature of ejectment. The complaint seeks the recovery of "forty-one (41) acres of land off of the northwest quarter of the southwest quarter of section (2,) township (11,) range (19,) nineteen, lying and being situated in Pike county, Alabama." The judgment follows the complaint, being that "plaintiff have and recover of the defendants the following described lands, to wit, forty-one acres off of the N. W. 4 of S. W. 4 of section 2, township 11, range 19, lying and being situated in Pike county, Alabama." On the trial there was evidence offered by the plaintiff himself, which tended to show that the land of which he had been in the adverse possession, through which he derived the title relied on in the action, was "forty-one (41) acres off of the north and west side of the north half of southwest quarter of section 2, township 11, range 19, in Pike county." The jury might have believed this evidence. They had a right to do so. If they had found that the only title shown by plaintiff by adverse possession or otherwise was of 41 acres off the N. 2 of S. W. 4 section 2, township 11, range 19, their verdict should have been for the defendant. Forty-one acres off the N. 1⁄2 of S. W. 4 of section 2, etc., whatever it may be, is certainly not the same as 41 acres off of N. W. 4 of S. W. 14 of section 2, etc. The latter description would have reference alone to a certain sixteenth of a section, and no land beyond that is embraced. The former has reference to a certain eighth of a section embracing the sixteenth named in the complaint and judgment, and also another sixteenth lying immediately east. The complaint calls in reality for all of the N. W. 4 of S. W. 4, and no more, even though that contains only 40 acres. The evidence to which we have adverted called for a strip of land of uncertain and unascertainable width, extending along the north side of the N. 1⁄2 of S. W. 4, embracing, of course, a part of the N. E. 4 of S. W. 4, and along the west side of said half quarter section, embracing a part, and only a part, of the N. W. 4 of S. W. 4. There was, therefore, upon this evidence, which the jury were authorized to believe, and which, indeed, does not appear to have been controverted, a fatal variance between the averment and the proof. The claim was of the whole of a cer

tain sixteenth of a section, and no more. The evidence tended at least to show that the only title plaintiff had or attempted to assert pertained to an indefinable and uncertain part of a certain one-eighth of a section, embracing some part, and only a part, of the N. W. 4 of S. W. 14, sued for, and some part, and only a part, of the N. E. 14 of S. W. 4, which is not sued for. On this state of case it was error to direct the jury to return a verdict for the plaintiff if they believed the evidence. Leaving out of view the uncertainty of the description of the land which plaintiff really claimed as shown by the evidence, the effect of this charge was to make the jury find for plaintiff in respect of the land sued for and all the land described in the complaint, though they might well have concluded from the evidence that plaintiff had no claim whatever to a large part of the land so described and sued for.

This conclusion will operate a reversal of the case. We need not pass upon the other assignments of error further than may be involved in the expression of our opinion that the attempted exception of "forty-one acres off of the north and west side of the N. 1⁄2 of S. W. 4 of section 2, township 11, range 19," in the mortgage executed by Giddens to Morris & Co.'s vendor, Bolling, is void for uncertainty, and, of consequence, the whole of the N. 2 of said quarter section passed by that instrument. Frank v. Myers, (Ala.) 11 South. 832.

Reversed and remanded.

WEBB v. HAWKINS LUMBER CO. (Supreme Court of Alabama. Dec. 21, 1893.) STATUTE OF FRAUDS-PROMISE TO PAY ANOTHER'S DEBT.

A lumber dealer had an arrangement to furnish lumber to his landlord in payment of the rent. The landlord ordered a certain kind of lumber of the tenant, who, not having it, gave the order to another lumber dealer. The latter refused to send the lumber till the tenant guarantied payment therefor. The seller charged the lumber to the landlord, and, on failing to collect from him, sued him and the tenant. Held, that the promise of the tenant was a contract to answer the debt of another, and void, because not in writing.

Appeal from circuit court, Jefferson county; W. R. Houghton, Special Judge.

Action by the Hawkins Lumber Company against B. T. Webb to recover the price of lumber. From a judgment for plaintiff, defendant appeals. Reversed.

Albert E. Barnett, for appellant. John H. Miller and F. E. Blackburn, for appellee.

MCCLELLAN, J. This cause was heard and determined by a special judge of the circuit court, on its merits, without the intervention of a jury. Judgment was rendered for the plaintiff, to which the defend

ant excepted, and the propriety of the court's action in that respect is now presented for our consideration by a bill of exceptions; and it becomes our duty to review that conclusion and judgment on the evidence, "without any presumption in favor of the court below," and, if we find error, to render such judgment in the cause as the court below should have rendered, or to reverse the judgment of the trial court, and remand the cause for further proceedings, as to this court may seem right. Acts 1888-89, p. 800, § 7.

The action is on an account for goods sold. The appellant and one Vann were joined as defendants. Vann made default, and judgment went against him accordingly. Webb pleaded the general issue and the statute of frauds. The latter plea presented the real issue in the case. Under it the theory of the defense was that Webb's promise to pay the amount to plaintiff was a promise to answer for the debt of Vann, and, not being in writing, was avoided by the terms of that statute, as embodied in the Code, § 1732, subd. 3. On the trial it was shown that both Webb and the plaintiff were timber dealers or manufacturers. Vann sent an order to Webb for certain lumber, which the latter did not have, and which was of a class not manufactured or dealt in by him. Webb was acquainted with Vann, had had dealings with and furnished him lumber before; and at this time there was an arrangement between them, by the terms of which Webb was to supply Vann lumber in payment of the rent of a house which the former had leased from the latter, and was occupying, at a rental of $25 per month. Some rent was due at the time of this transaction. Webb, not being able to fill the order, carried it to plaintiff for the purpose of having it filled by the latter. He had no authority to get the lumber from plaintiff and have it charged to Vann. When the order was presented to plaintiff, with Webb's request that he fill it, plaintiff told Webb that he did not know Vann, and inquired if he was good. To this, Webb replied in the affirmative. Plaintiff again stated that he did not know Vann, "and Webb then said he would guaranty the bill, and pay for it." Plaintiff then shipped the lumber to Vann, according to Webb's directions. The account was charged to Vann on plaintiff's books, and the bill was mailed to him. It was afterwards first presented to him for payment. "He said Webb would pay it, as there was an arrangement between Webb and himself by which Webb was to furnish him lumber in settlement for rent of a house. Plaintiff then saw Webb, who said he was renting a house from Vann, and would make Vann pay the bill, and that Vann had bought the lumber from him. Plaintiff afterwards saw Webb and Vann together, and Webb repeated his statement that the bill should be paid." Plaintiff testified that he looked to both Vann and

Webb for payment, and this is relieved from all doubt by the fact that he has sued them both, and recovered a judgment against both. On the foregoing, which we find to be the facts of the case, though there is some conflict in the evidence, we, of course, cannot hesitate to declare that the credit upon which the lumber was sold was in some degree, at least, that of Vann, and that, unless there is something in the attitudes sustained to each other in this transaction by Webb and Vann to bring the case within an excep tion to the operation of the statute referred to, the debt was that of Vann, since he received the property, which, as between him and plaintiff, constituted the sole consideration for the indebtedness, and Webb's promise was to answer for the debt of another, within the terms of the statute, and hence voidable at his election, because not in writing expressing a consideration, and signed by him; for the rule is that where any credit is extended to the party to whom the consideration moves,-where he is looked to at all for payment, though the other party may be in much greater degree relied on,-the debt is his, and the other party's obligation is that of guarantor, which, to be binding, must be in writing. 8 Amer. & Eng. Enc. Law, p. 674, note 6; Id. pp. 678, 679, notes; Foster v. Napier, 74 Ala. 393; Boykin v. Dohlonde, 37 Ala. 577; Marx v. Bell, 48 Ala. 497; Clark v. Jones, 87 Ala. 474, 6 South. 362.

We do not think the facts in respect of the relations between Vann and Webb take the case out of the statute. Conceding that Webb was under some sort of obligation to supply lumber to Vann, it does not appear that this transaction was intended as a performance of that obligation. On the contrary, the judgment rendered in this case against Vann demonstrates, in a way to conclude the plaintiff on that point, that Vann did not receive this lumber in payment of Webb's indebtedness to him, and that by its receipt that indebtedness was in no degree lessened; so that there is no accommodation in the case for the doctrine that a contract, though in form to answer the debt of another, is original, and not within the statute, when there is a valuable consideration for the special promise moving directly to the promisor. Upon like considerations, it is manifest that there is no merit in appellee's position that, as the testimony of Vann shows that Webb was without authority to make the purchase from plaintiff for him, he did not bind Vann thereby, but on a familiar, general rule, having acted as agent without authority to bind the person for whom he assumed to act, he bound himself as in an original, and not collateral, undertaking. This contention, also, is forever closed against the appellee by the judgment against Vann, which is a conclusive determination that he was bound by the contract made for him with the plaintiff, either because of original authorization to

Webb, or because of subsequent efficacious ratification of Webb's acts. We are therefore constrained to a different conclusion than that reached by the court below as to Webb's liability, and to hold that his promise was within the statute of frauds, and was avoided on the trial by his plea, and the proof of it. The judgment of the city court is therefore reversed, and a judgment will be here entered for the defendant, Webb.

MCLEOD v. AMERICAN FREEHOLD
LAND MORTG. CO. OF LONDON,
Limited.

(Supreme Court of Alabama. Dec. 21, 1893.) FOREIGN CORPORATIONS-CERTIFICATE FILED WITH SECRETARY OF STATE.

Under Const. art. 14, § 4, and Sess. Acts 1886-87, giving force thereto, which require foreign corporations to file with the secretary of state an instrument designating at least one known "place of business" in the state, and an agent or agents residing thereat, the certificate need not designate the store or office of such agent, but is sufficient if it designates the city where he resides.

Appeal from chancery court, Montgomery county; John A. Foster, Chancellor.

Action by Sidney McLeod against the American Freehold Land Mortgage Company of London, Limited. From a judgment for defendant, complainant appeals. Affirmed.

Arrington & Graham, and A. A. Wiley, for appellant. Jas. E. Webb and C. Bradshaw, for appellee.

HARALSON, J. As stated by counsel for appellant, the only question in this case is whether the instrument in writing filed with the secretary of state by the appellee, the New England Mortgage Security Company, is a sufficient compliance with the act of the legislature requiring corporations to file with the secretary of state an instrument "desigcating at least one known place of business in this state, and an authorized agent or The certificate agents residing thereat."

filed was to the effect that, in order to comply with the requirements of the constitution in reference to foreign corporations doing business in this state, the company had appointed (quoting the language) "William E. Hooper, Esq., of the city of Birmingham and state of Alabama, their [its] agent, under the said provisions of said constitution, giving unto him all such powers, rights, and privileges, and imposing on him such duties, as the said clause of the constitution requires. And the said Hooper is authorized and required to keep an office or place of business in the city of Birmingham."

The contention of appellant is that this certificate is insufficient, only, in that it does not designate the place of business-storehouse or office of said agent-in the city of Birmingham, and therefore does not designate "one known place of business, and an

authorized agent or agents therein," as required by the constitution and the act of the legislature to give it force and effect. Const. art. 14, § 4; Acts 1886-87, p. 102. Said act requires that such a company, before doing business in this state, shall file an instrument in writing, under its seal, signed officially by its president and secretary, "designating at least one known place of business in this state, and an authorized agent or agents residing thereat." The point is too technical, and is without merit. The words "agent or agents therein," as used in the constitution, or "agent or agents residing thereat," as in the act of the legislature, surely do not mean merely a store, office, or business house in a city or town. These words do not imply that the agent must reside in his office or place of business. The terms employed plainly mean "one known place of business," such as a town or city or other known place, in which or at which the agent resides, and where he may be found. The designation of the particular office or other place of business, if in a city or town, where the agent may be generally found in business hours, might be convenient for those desiring to find him, but not necessary to come within the requirements of the law. Security Co. v. Ingram, 91 Ala. 337, 9 South. 140; Nelms v. Mortgage Co., 92 Ala. 159, 9 South. 141; Mortgage Co. v. Sewell, 92 Ala. 163, 176, 9 South. 143; McCall v. Mortgage Co., (Ala.) 12 South. 806. In the Sewell Case referred to supra, the certificate was identical with the one in this case, and was held sufficient, though the report of the case does not set out the certificate. Affirmed.

PRINCE v. STATE. (Supreme Court of Alabama. Dec. 21, 1893.) MURDER-EVIDENCE-EXPERT TESTIMONY-INSTRUCTIONS-ALIBI-BURDEN OF PROOF.

1. On a murder trial, a charge that, "if the defendant has failed to establish his alibi through the perjury or through the want of recollection of his witnesses, it is a circumstance against him," is error, since it is open to the construction that, if the witnesses perjured themselves to disprove the alibi, it was a circumstance against defendant.

2. An instruction that "the burden of proof was on defendant to establish his alibi, and that it must be done to your satisfaction," exacts too high a degree of proof.

3. It is proper to refuse to charge that, "if there is a probable doubt of the guilt of the defendant, the jury must acquit."

4. It is error to refuse to charge the jury that, "if there is a probability of the defendant's innocence, they must acquit.'

5. On a trial for murder caused by a bullet wound, a physician who testifies that he could not by any means, by looking at the wound, tell whether it was made by a rifle ball or a pistol ball, is incompetent to give his opinion that the wound was caused by a rifle ball. 6. A witness testified that, when he entered defendant's house soon after the killing, "defendant was perspiring freely, and seemed much excited." Held, that an objection to the whole of this evidence was too broad, since evidence

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