function or office it will be permitted to perform. It is only evidence of fact, not of law, in cases where the contract is expressed in language of ambiguous or of doubtful meaning, or is silent upon some material inquiry of fact. To establish such custom, and make it operative in any given case, it must be reasonable, not against the law or public policy, not opposed to any express term of the contract, and must be so general and so known as to justify the presumption the parties knew of it, and contracted in reference to it. Desha v. Holland, 12 Ala. 513; Smith v. Rice, 56 Ala. 417; Railway Co. v. Jay, 61 Ala. 247; Antomarchi v. Russell, 63 Ala. 356; Powell v. Thompson, 80 Ala. 51; Haas v. Hudmon, 83 Ala. 174, 3 South. 302; Herring v. Skaggs, 73 Ala. 446; Railroad Co. v. Johnston, 75 Ala. 596; Wilkinson v. Williamson, 76 Ala. 163. In German-American Ins. Co. v. Commercial Fire Ins. Co., (Ala.) 11 South. 117, we declared it to be "well settled that proof of such local usages will not raise up a presumption of a knowledge of their existence on the part of one engaged generally in the business to which they pertain in a certain city, at least where the domicile of the party sought to be charged is elsewhere; or, in other words, in order to create even a prima facie presumption that a party has knowledge of a usage incident to a particular business about which he is engaged, the usage must be shown to be a general one in that business, in such sort as that it would be unreasonable to suppose he was ignorant of it." The record before us contains no direct testimony of the residence of Buyck & Cain when the acts were done which gave rise to this suit. It was agreed on the trial that the terms of the contract under which, the goods were purchased were correctly set forth in a letter of authority and instructions written by Buyck to Cain, his codefendant. That letter was dated Wetumpka, Ala., and was addressed to Cain at Louisville, Ky. The warehouse in which the goods were stored, and in which they were burned, was the property of Schwing and his partner, and was in Louisville, Ky. The present suit was brought in Montgomery county, Ala., and process was served on Cain in that county, while Buyck was brought in by branch summons executed in Elmore county, Ala., the county in which Wetumpka is situated. The inference these facts would justify would be that Balmforth & Co., the partnership of which Schwing is the surviving partner, resided or did business in Louisville, Ky., that Buyck & Cain resided in Alabama, and that, when the order was given to make the purchase, Cain was in Louisville, Ky. We hold the city court erred in giving the charge copied above. It ignores all inquiry as to the length of time such custom had prevailed, and of defendants' knowledge, or opportunity for acquiring knowledge, of its existence. If it be found, upon proper evidence and a

proper charge, that such custom did exist, and that the defendants in the city court (appellants here) are chargeable with notice of such custom, then it would not necessarily follow, as matter of law, that they are not responsible for any part of the expense of enforcing the liability of the insurance companies for the loss. They are responsible, and should be so held, for their proportion of the expense so incurred, so far, and only so far, as the same was, or appeared to be, reasonably necessary and proper. There was no attempt made, so far as the record informs us, to obtain the authority or sanction of Buyck & Cain that any extraordinary expenditure should be incurred in prosecuting the suits against the insurance companies. The circumstances indicate that correspondence with them would not have been difficult. The itemized account of expenses certainly shows charges that are unusual, alike in their nature, frequency, and amounts. Why it should be necessary to retain witnesses on continuous pay when they had not been subpoenaed, and why incur many other items of expenditure, we are not able, by the aid of anything shown in the transcript, to perceive. Witnesses appear to have been paid monthly, and generally weekly, for about three and a half years. There is only one month-September, 1888-in which no charges of this kind appear. The gross sum claimed to have been so paid appears to have reached between six and eight thousand dollars, of which, it would seem, not one thousand dollars were recovered back in taxed costs, although all the suits that were tried were gained against the insurance companies, while the others were compromised, Schwing realizing nearly all he claimed. Nor can we perceive why it should be necessary for Mr. Schwing to have an office in connection with the prosecution of the suits against the insurance companies. If the authority or sanction of Buyck & Cain was not obtained for incurring these extraordinary expenses, they are not proper charges in the account sued on in this case, so far as we are informed by the record; and it states it contains all the evidence.

Under these principles we hold that charges 1 to 5, inclusive, and charge 7, asked by defendants, were each of them properly refused. Charges 6 and 8 ought to have been given. Charges 9, 10, and 11 were properly refused, for we cannot, on the evidence found in the record, assert as matter of law that those expenditures were not reasonably necessary, and therefore proper. Charge 12 was properly refused. We cannot assert, as matter of law, that all of those items of expense were improper. We have sufficiently indicated our view on this subject. And the same may be said of charge 15. Charges 13, 14, 16, and 17 are in their nature arguments, and were properly refused on that account, without considering any other. Reversed and remanded.

HOLMES et al. v. STATE. (Supreme Court of Alabama.

Nov. 29, 1893.) ACTIONS AGAINST STATE-SCHOOL LANDS-SELECTION-POWERS OF INTERIOR DEPARTMENT-CANCELLATION OF ENTRY.

1. Const. art. 1, § 15, providing that the state cannot be made a defendant in any court of law or equity, applies to a cross bill seeking affirmative relief against the state.

2. In an action to enjoin the mining and selling of coal from school lands, defendants cannot question the legality of the statute under which an agent was employed by the state to select lands in lieu of lost school lands, nor the regularity of proceedings with the federal government whereby a selection of the land in controversy was approved by the department of the interior and certified to the state.

3. A decision of the department of the interior to cancel inchoate rights acquired by homestead entry, is prima facie correct; and a party who assails the correctness of such a decision must show affirmatively that it is illegal and unauthorized.

4. Where a party commutes his homestead entry into a cash entry, and the final receipt for the price is issued to him by the receiver, and the certificate is signed by the register, such receipt and certificate may entitle him prima facie to a patent, but do not conclude the land department from investigating the truth of the facts on which they were issued, and the bona fides of the homestead claim, and from canceling the same if found untrue and insufficient.

5. Where a bill avers that a pre-emption claim was canceled by the proper department, and contains a copy of a letter from the assistant secretary notifying the claimant of the order of cancellation, the averment of the bill is admitted by an answer which nowhere denies it, but avers that "the claim was never legally canceled," and "that, if such cancellation was made, it was not only without sufficient authority, but on insufficient proof.'

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

Bill by the state of Alabama against Mack Holmes and others to enjoin defendants from digging, mining, or selling coal from certain lands described in the bill, and from cutting timber from, or in any way impairing the value of, said lands. On the final submission of the cause a temporary injunction, which had been previously issued, was made perpetual, and defendants appeal. Affirmed.

The bill alleges that the state had title to the lands in controversy from the United States as school indemnity lands, as is shown by a certified list made an exhibit to the bill, in which the selection of said lands by a duly-appointed agent for the state of Alabama was approved by the department of the interior at Washington. The bill further averred that the defendants had no title to the land, either legal or equitable; that an attachment suit had been commenced to try the title to said lands; and that the defendants were mining and selling coal therefrom, and were insolvent. A motion was made by the defendants to dismiss the bill for the reason that the bill appears to have been filed without any legal authority for so doing. On the hearing of this motion there was submitted a letter

from Thomas G. Jones, governor, addressed to Hon. John Caldwell, in which he was authorized and directed "to bring all such suits, either at law or in equity, as in your [his] judgment may be deemed advisable to recover the possession of school indemnity lands." The bill showed that it was filed by John Caldwell with other counsel. This motion was overruled by the court. The defendant then interposed a demurrer, assigning several grounds, which demurrer was overruled by the court.

The defendant Mack Holmes then filed his answer, denying that he was a trespasser, but alleged that he held a legal title to said lands by virtue of having entered the same as a homestead, and commuting said homestead entry to a cash entry, upon which a final receipt or certificate had been issued to him from the land office at Montgomery, which final receipt or certificate is still in force, and has never been canceled. The answer further denies that the state has any legal title to the land in controversy for the reasons: (1) That they were selected for the state by one John H. Caldwell, who was appointed for that purpose under an agreement to give him onefourth of the land secured by him; that this agreement and appointment were void, and therefore the selections were void. (2) That one of the tracts of land was selected in lieu of a tract in township 17 N., range 7 W., Huntsville meridian; but there was no such township in the state of Alabama, and that the selection of the former tract in lieu of the latter was therefore void. (3) Because, as shown by the bill of complaint, the lands in question were valuable coal lands, and, being such, could not be selected as indemnity school lands. (4) That the law required these selections to be made from the most contiguous vacant lands, but that the state did not do this. This answer was prayed to be taken as a cross bill, and that upon the final hearing thereof the title of the state be canceled; that title be vested in the defendant; and that the complainant's ejectment suit be perpetually enjoined.

The facts of the case as shown by the evidence were that John H. Caldwell was duly appointed agent for the state to select the school indemnity lands as approved by the act of congress; that in the discharge of his duties as such agent he selected the lands involved in this suit, certified the same to the department of the interior, where his selection was approved, as shown by his certificate thereof, vesting the title to said lands in the state of Alabama. The evidence for the defendant was to the effect that the defendant holds and entered the lands in controversy as a homestead at the land office in Montgomery, Ala., in August, 1881; that thereupon he built a house on the lands, and cleared and cultivated a part of it, and resided thereon until 1884, when he

made application to the register in the land office in Montgomery to commute his homestead entry into a cash entry; that the register gave proper notice of this application, and that the said Holmes made proof in support of same; that thereafter, on June 17, 1884, the application was allowed by the register and receiver, who received the commission price to be paid by the defendant at $1.25 per acre, and that there was issued to him a final receipt therefor, signed by the receiver, and a certificate, signed by the register, that said Holmes was entitled to a patent on the lands.

Some time in the year 1886 a contest of Holmes' right under his interest was commenced by one Maxwell before the register and receiver at Montgomery, and proof was submitted to them upon said contest, but the register and the receiver were divided in their judgment, and on that account certified the contest to the commissioner of the land office for his decision thereon. The commissioner of the land office rendered a decision on October 16, 1888, and decreed that the homestead entries of the defendant Holmes should be canceled. On the final hearing of the cause, on pleadings and proof, the court dismissed the answer of the defendant as a cross bill, and decreed that the injunction theretofore granted against the defendants should be made perpetual.

Lea & Bell and Jo. G. Crews, for appellants. Smith & Lowe and John H. Caldwell, for the State.

COLEMAN, J. Upon the filing of the bill by the state an injunction issued to restrain Mack Holmes et al. from mining and selling coal from certain lands which are described in the bill, and which are claimed as school lands, certified to the state in lieu of other school lands which had been lost. The bill was answered, and the answer prayed to be taken as a cross bill, and relief prayed against the state. The cause was submitted on the pleadings and evidence, and by final decree the injunction perpetuated. Many questions have been argued by appellant which require no more than a passing notice. By the express provision of the constitution the state' cannot be made a defendant in any court of law or equity. Code, p. 22, § 15. This rule is as applicable to cross bills seeking affirmative relief against the state as to original bills. The state is not required to give bond or security, or cause affidavit to be made, though the same might be required if the suit was be tween individuals; and the written direction of the governor of the state to the attorney of record is a sufficient authority for bringing the suit. Id. p. 573, § 2573.

The legality or policy of the statute under which John H. Caldwell was employed by 'Const. art. 1, § 15.

the state to secure lands in lieu of lost school lands cannot be questioned by respondent in this proceeding; nor are mere irregularities, if any exist, in the proceedings with the general government, by which the land in controversy was certified to the state of Alabama, available to respondent. The bill avers, and the proof shows, that the tract of land in controversy was selected, and the selection approved, and the list duly certified to. Under the law, until canceled or annulled, this was sufficient to vest in the state whatever of right and title the general government held and owned. Rev. St. U. S. § 2449; McCreery v. Haskell, 119 U. S. 327, 7 Sup. Ct. 176; Wisconsin Cent. R. Co. v. Price Co., 133 U. S. 496, 10 Sup. Ct. 341.

The vital question is whether the state, by virtue of the selection and approval and certified list, acquired a title superior to that of respondent. To determine this question it becomes necessary to inquire into the right and title of the respondent acquired by an alleged homestead entry, and whether the same, if any were acquired, were subsequently canceled by the general government prior to the time when the land was certified to the state. We do not doubt the power of the interior department to cancel inchoate rights acquired by homestead entry in all proper cases, and that in arriving at and declaring its conclusions it exercises in some respects a quasi judicial power. Its judgments are not conclusive as res adjudicata upon the courts of the country, but are entitled to great consideration. Railroad Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112Knight v. Association, 142 U. S. 178, 12 Sup. Ct. 258; Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. 249. We are of opinion that the conclusions of the land department upon a question before it, apparently within the scope of its authority, are prima facie correct, and the party who assails their correctness must show affirmatively that they are illegal and unauthorized. U. S. v. Steenerson, 1 C. C. A. 557, 50 Fed. 504; Aldrich v. Aldrich, 37 Ill. 32; Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. 249; Quinby v. Conlan, 104 U. S. 420; Steel v. Refining Co., 106 U. S. 447, 1 Sup. Ct. 389.

Without determining whether the facts averred in the answer of Holmes, if sustained by the proof, present a case in which the land department had no authority to cancel his certificate, it is very clear the proof adduced falls far short of sustaining the averments of the answer. It is not averred in the answer that respondent was not duly notified to appear and show cause why his entry should not be canceled, nor that he did not have full opportunity to appear and contest the motion to annul and cancel it; nor is any reason given, if he did not, why he failed to do so. Although it is averred in the answer that respondent made the necessary permanent improvements and con

tinuously resided upon the land from the date of his entry (to wit, 1881) to April, 1884, when the same was commuted from a homestead entry to a cash entry, and the payment of the cash entry, there is no proof in the record of the truth of these averments, other than such as may be inferred from the register's and receiver's certificate and receipt. The government had not issued to him a patent to the land; and while the certificate and receipt may have entitled him prima facie to the patent, they did not conclude the land department from investigating and determining the truth of the facts upon which the certificate and receipt were issued, and the bona fides of his homestead claim, and, if found fraudulent or untrue and insufficient, to cancel the same. The burden resting upon the respondent in these respects has not been met or overcome. It is contended in argument that there is no sufficient proof of the judgment or order of cancellation. Under the pleadings we do not consider this an open question, dependent upon extraneous proof.

The bill charges directly that his pre-emption claim was canceled by the proper department, and contains what purports to be a copy of a letter from the assistant secretary to Holmes, informing him of the order of cancellation. The answer nowhere denies that the order of cancellation as averred in the bill was made. Its response to this averment is "that, if any such cancellation was made, it was not only without authority, but upon insufficient proof;" that "his claim was never legally canceled." The answer does not call for proof on this point. By the terms of the answer the averment is admitted, and under the law, as we have declared it, the respondent assumed the burden of showing that the order of cancellation was unauthorized and illegal. In this he has wholly failed. We find no error, and the decree is affirmed.

BALKUM et al. v. STRAUSS et al. (Supreme Court of Alabama. Nov. 29, 1893.) GARNISHMENT-BOND FOR DISSOLUTION-CONSTRUCTION OF ACT.

Act Feb. 12, 1891, provides that the principal defendant may "dissolve a garnishment and have the same dismissed," on filing a bond payable to plaintiff for the payment of any judgment rendered against the garnishee, and the plaintiff may have judgment on such bond against the defendant and sureties. Held, that the effect of the bond is to release the garnishee's debt from the lien created by the attachment, and to dissolve the attachment pro tanto; that no judgment can be rendered against the garnishee after the attachment is dissolved as to him; and that a judgment in fact against the garnishee is not necessary before plaintiff can "have judgment on such bond against the defendant and sureties."

Appeal from circuit court, Dale county; J. M. Carmichael, Judge.

Action by Joseph Strauss and others against J. A. Balkum. Certain persons were summoned as garnishees, and defendant filed a bond, whereupon the garnishment proceedings were dismissed. From a judgment against defendant and his sureties on the bond, they appeal. Affirmed.

The act to dissolve garnishments in cases where the defendant executes a bond to plaintiff was approved by the general assembly of Alabama, February 12, 1891, and was in the following language: "Section 1. Be it enacted by the general assembly of Alabama, that in all cases where garnishments are issued, when suits pending a judgment has been obtained, the defendant may dissolve such garnishment and have the same dismissed, upon filing in the clerk's office of the court where suit is pending, or judgment was obtained, or with the justice of the peace where suit is pending or judgment obtained, in such court a bond with sufficient security, payable to the plaintiff for the payment of the amount of such judgment as may be rendered against the garnishee in such proceedings, and the cost thereon; and the plaintiff may have judgment on such bond against the defendant and sureties, as judgment may be obtained against sureties upon appeal bonds." The appellees instituted an attachment suit against J. A. Balkum. The writ of attachment was executed by serving writs of garnishments on several insurance companies. As provided by the act of the general assembly approved February 12, 1891, the defendant, on the coming in of the answer of the garnishees, executed bond conditioned to pay such judgment as may be rendered in favor of the plaintiffs against the said garnishees, and the costs thereon. Upon the execution of this bond and the approval thereof, the clerk of the court dissolved the writ of garnishment. When the case was called for trial, the defendant not appearing, a judgment by default was rendered against him, and it further appearing to the court that the garnishees were indebted to the defendant in a sum greater than the amount claimed by the plaintiffs, and that a judgment could have been entered against them for the amount claimed by the plaintiffs, the court rendered judgment against the defendant and his sureties on the bond given in order to have the writ of garnishment dissolved. This appeal is from this judgment, and the rendition thereof is assigned as error.

A. E. Pace, for appellants. Roberts & Martin, for appellees.

STONE, C. J. This case presents for our interpretation the act "to dissolve garnishments in cases where the defendant executes bond to plaintiff," approved February 12, 1891. Sess. Acts, 590. After the attachment was served on the garnishees, the de

fendant Balkum, together with others as his sureties, executed a bond made payable to plaintiffs, and in proper penalty and condition, which was approved by the clerk of the court and filed in his office, and which bond conforms to the statute. On approving and filing this bond, the clerk made an order dissolving the garnishments.

Balkum v. Reeves, 13 South. 524, was deIcided at the last term of this court. The facts in that case were identical with those in the present record, and the question was whether the circuit court erred in awarding judgment against Balkum and his sureties, after first rendering judgment against Balkum in the principal suit. We affirmed the judgment, declaring there was no error in the record of which appellants could complain. That decision is decisive of the present appeal, and leads to the affirmance of the judgment. The statute is somewhat awkwardly framed. It is, however, remedial in its character and purpose, and must be liberally construed. Statutes must be so construed, if possible, as to give effect to every clause, and not to place one portion in antagonism to another.

Lehman v. Rob

inson, 59 Ala. 219; Ex parte Dunlap, 71 Ala. 73. If we adopt the construction contended for by appellants, we are led to most absurd results. The purpose and effect of the bond in such cases is to release the garnishee's debt from the lien created by the service of the writ upon him, and to dissolve the attachment pro tanto. After this, no judgment can be rendered against the garnishee, for the attachment is dissolved as to him. The effect of holding that there must be a judgment in fact against the garnishee before the plaintiff is entitled to "have judgment on such bond against the defendant and sureties" would be to declare that under no circumstances could a judgment be rendered against the bondsmen. This would be to give an effect to one portion of the statute which is irreconcilably antagonistic to another, and thus to deprive the plaintiff of all remedy on the bond. We cannot and will not suppose the legislature intended to furnish the means of depriving plaintiffs of all remedial benefit the law had secured to them under the garnishment law. Affirmed.

ADAMS v. CREEN, Justice of the Peace, (two cases.)

(Supreme Court of Alabama. Nov. 28, 1893.) CONSTITUTIONAL LAW- IMPAIRING OBLIGATION OF CONTRACTS-GARNISHMENT ACT 1893-VALIDITY.

1. Act Feb. 21, 1893, (Acts 1892-93, p. 886,) provides that any party desiring to sue out process of garnishment shall make affidavit that the debt is for necessary food for the support of defendant and his family, or for house rent, and it shall be unlawful for any justice of the peace to issue a garnishment on any claim when exemptions have not been waived in writ

ing, and that such waiver shall only be given for such necessary food, or for house rent. Held that, so far as such act relates to contracts waiving exemptions made by such defendant before it took effect, it is in conflict with Const. art. 4, § 56, prohibiting any law impairing the obligation of contracts.

2. Such act is not a restraint on the exercise of the constitutional right to waive exemptions, but is a limitation only on the right of garnishment in justices' courts to cases where defendant has waived his exemptions, and the consideration of the contract was for bread and meat or house rent, and is valid as to contracts made after it took effect.

Appeal from city court of Anniston; James W. Lapsley, Judge.

Two petitions by James G. Adams for writs of mandamus to compel James F. Creen, as justice of the peace of Calhoun county, Ala., to issue a writ of garnishment in each of two separate actions, wherein said Creen, as such justice, rendered judgment in favor of plaintiff against W. H. Baker. From a judgment in each case denying a writ of mandamus, petitioner appeals. Affirmed as to one case, and reversed as to the other.

These appeals bring before the court for consideration the act of the general assembly approved February 21, 1893, entitled "An act to regulate the issue of garnishments and the proceedings thereon in the counties of Jefferson, Dallas, Calhoun, Escambia and Cleburne." The first section of this act, which is the only one having reference to the issue in hand, is in the following language: "Section 1. Be it enacted by the general assembly of Alabama, that any party desiring to sue out process of garnishment, in addition to the affidavit now required by law, shall make affidavit that the amount sought to be made is for necessary bread and meat for the support of defendant and his family, or for house rent, and it shall be unlawful for any justice of the peace or notary public to issue a garnishment on any claim when exemptions have not been waived in writing, and that such waiver shall only be given for necessary bread and meat for support of defendant and his family, or for house rent; provided, however, the provisions of this act shall not apply to garnishment for poll tax, or other tax." This proceeding was commenced in Calhoun county before a notary public and ex officio justice of the peace. In the case numbered 32, James G. Adams, as petitioner to the judge of the city court of Anniston, alleged in his petition that one W. H. Baker was indebted to him in the sum of $10, evidenced by a promissory note waiving exemptions to personal property, which was executed in Alabama on the 23d day of January, 1892, and made payable on demand; that on June 1, 1893, petitioner brought his suit on said note before James F. Creen, a notary public, and ex officio justice of the peace; that summons and complaint were issued thereon; that the petitioner also made bond and affidavit as required by statute to obtain a writ of garnishment against Noble Bros. & Co., and filed said affi

as