basis for a determination in a particular case whether the punishment shall be such as is set against the one or the other of the grades of larceny. It might be averred that the value of the animal was more than $25, and yet there would be no more warrant in the statute for inflicting punishment for grand larceny than if the value were laid at $1, or nothing. And so as to petit larceny. If the value be laid at $10, there is no justification for imposing punishment as in petit larceny, because guilt and punishment go upon the fact of registration, and not upon valuation. All this is illustrated in the case at bar. No value is alleged, nor should it have been. Registration and theft are alleged. There was verdict of guilt. The court imposed punishment as in grand larceny. While there was no warrant for this, there was equally no warrant for the imposition of punishment as for petit larceny. The court was directed by the act to punish as in other cases of larceny; but whether as in cases of petit larceny or grand larceny it did not and could not know. This court cannot and does not know which the legislature intended. It is past all finding out. The act, in other words, creates an offense, but it fails to affix any certain punishment. The court, being unable to certainly impose an authorized punishment, was not authorized to impose any punishment. The motion in arrest of judgment should have been granted. The judgment rendered will be reversed, and held for naught. The motion in arrest will be here granted, and a judgment entered discharging

the defendant. Reversed and rendered.

GREEN v. JONES.

(Supreme Court of Alabama. Jan. 18, 1894.)

JUDGMENT-DEFAULT-PARTIES.

1. A default cannot be entered after defendant has interposed a plea in bar.

2. In an action by one as surviving partner, a judgment in favor of the firm is irregular. Appeal from circuit court, Russell county; J. M. Carmichael, Chancellor.

Action by Rufus Jones, as surviving partner of the firm of Jones Bros., against Cherry Green. Judgment for plaintiff. Defendant appeals. Reversed.

L. W. Martin, for appellant.

MCCLELLAN, J. This action is prosecuted by Rufus Jones, as surviving partner of the firm of Jones Bros. The complaint is in debt, on an open account. Defendant, Green, interposed the following plea: "*

*

And now comes the defendant, and, for plea and answer to the plaintiff's cause of action, says that she is not indebted to the plaintiff in the form and manner complained of, nor is she indebted to the plaintiff in any amount, and of this she puts herself upon the country." This plea was filed October 8, 1892. On October 20, 1892, the

cause was continued by consent. On April 25, 1893, a judgment by default was rendered against the defendant in favor of Jones Bros., with writ of inquiry. The defendant having interposed her plea, it was manifestly erroneous to enter judgment by default against her. Grigg v. Gilmer, 54 Ala. 425.

The judgment was also irregular, in that it was entered in favor of Jones Bros., the suit being in the name of Rufus Jones alone, as surviving partner of the late firm of Jones Bros. Reversed and remanded.

WHARTON v. HANNON. (Supreme Court of Alabama. Jan. 17, 1894.) EASEMENTS-OBSTRUCTIONS-ACTION TO ENJOIN

EVIDENCE-PETITION-SUFFICIENCY.

1. In an action to enjoin the obstruction of an alley granted by defendant to plaintiff's grantor, it appeared that the description in the deed of the alley was so indefinite that its identity could not be ascertained, but that after the grant it was definitely located by the parties, and passed to the possession of the grantee, who continued its use for nine years. Held, that evidence of oral statements of the parties, made

prior to the grant, indicating a purpose by the grantor, at some time, to acquire other land and locate the alley over it, was incompetent.

2. Plaintiff must allege in his bill that such alley was located by the parties after the grant, since the deed alone was void for uncertainty. Stone, C. J., dissenting.

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

Wharton to enjoin the obstruction of an Action by T. W. Hannon against W. G. alleyway. From a judgment and decree for plaintiff, defendant appeals. Reversed.

The defendant introduced parol evidence which tended to show that the sale of this alleyway was negotiated with the defendant by one Anderson for Hannon & Co., and that there was an understanding between the defendant and the said Anderson that the defendant was to buy the remainder of lot 1, if he could, and that after such purchase he was to give a right of way across the rear of lot 1, to Tallapoosa street, and that it was for this reason the deed, although it defines the right of way across lot No. 2, does not define it across lot 1, or designate the street across which the outlet was to be given. It was shown by the evidence that the defendant, Wharton, did purchase the remainder of lot 1, and that he opened an alleyway across its rear to Tallapoosa street, and that, for many reasons, this alleyway was much more convenient than the one which had been used by the complainant, and which the said Wharton closed up after the opening of the alleyway to Tallapoosa street.

Tompkins & Troy, for appellant. Wilkinson, for appellee.

Chas.

HEAD, J. On the 18th day of May, 1882 Hannon & Co. acquired by deed from W.

It is

G. Wharton and wife an easement thus described: "The privilege and right of way to use and pass over, with their horses, mules, wagons, teams, drays, trucks, carriages, employes, or persons, for all mercantile or business purposes, a lane or alleyway at least eighteen feet wide on and through the rear part of lot number two in square number eight, East Alabama plat, and a lane or alleyway of at least twelve feet wide on and through lot number one in square number eight, East Alabama plat," in the city of Montgomery, Ala.; "and for all time to come said right of way over and through said lots is hereby conveyed, for the purpose of giving the owners, occupants, or tenants of buildings of store No. 57 Commerce street an approach and outlet free and open at all times from the rear of said premises to the street." The appellee, one of the firm of Hannon & Co., afterwards acquired the rights of his copartner in this easement. There is no controversy in reference to the 18-foot way, the grantee being in the undisturbed enjoyment of it; but the complaint of Hannon, the grantee, is that Wharton, the grantor, has obstructed and denied him the use of the 12-foot way; and he prays for, and obtained in the lower court, injunction of that obstruction. observed that the deed is indefinite as to the particular location of the 12-foot way,so much so that the identity of the way intended to be granted could not be ascertained from it alone. The evidence, however, very clearly discloses that immediately after the grant the way intended to be conveyed was definitely located and marked by the parties, and passed to the actual possession and enjoyment of the grantees, who continued therein unmolested until the happening of the grievances complained of in the present bill,-a period of some nine years. Such a location and delivery of possession aids the deed, and secures to the grantee a good title and right to the possession of the way so located, as fixed and irrevocable as if the deed itself were perfect. Bannon v. Angier, 2 Allen, 128; Osborn v. Wise, 7 Car. & P. 761; Kraut's Appeal, 71 Pa. St. 64; Jennison v. Walker, 11 Gray, 426; Jones v. Percival, 5 Pick. 485; Wynkoop v. Burger, 12 Johns. 222. The right of way being thus secured and defined by the deed and location, and the possession and enjoyment of the grantees thereunder, it is not permissible to introduce prior oral statements of the parties indicating a purpose on the part of the grantor, at some time in the future, to acquire other adjacent land, and make a location of the way different from that which was made, and over the land so to be acquired. Nor is it material that a better way of ingress and egress has been opened by the grantor, and offered to the grantee. The latter's rights are such as he acquired by his contract, and it is for him to determine whether he will surrender them, and accept

some other benefit in their stead. It is very clear that the fact that the use of complainant's alleyway involves the crossing with his teams, etc., of the sidewalk on Commerce street, does not make a case of such public detriment or inconvenience as justified defendant in closing the alley, or will induce the court to withhold the exercise of its remedial powers, otherwise properly invoked, to secure to the grantee the enjoyment of his easement.

Upon the evidence, therefore, as we find it in the record, we would have no hesitation in affirming the decree of the city court, but there is an omission in the bill which must work a reversal. As we have seen, the deed, in itself, is imperfect, in that it fails to identify the particular land intended to be covered by the easement. It required location under it. In order to obtain relief, the complainant was required to allege, as well as prove, that the location was made, and describe the way so located. Proof without allegations is not sufficient. McDonald v. Insurance Co., 56 Ala. 468; Goldsby v. Goldsby, 67 Ala. 560. The bill fails to show the location. For this omission, the decree is reversed, and the cause remanded.

STONE, C. J., (dissenting.) Under the facts set forth in this record, I do not think the remedy by injunction should be allowed. There is no averment that the grantor of the easement is insolvent, and Hannon can obtain ample redress in an action at law for damages. I base my opinion on the fact that another and better outlet is tendered in lieu of the one sought to be obstructed; and to grant injunction in a case like the present one has the appearance of operating a great hardship on Wharton, while the injury to Hannon, if any is suffered, is very slight, in comparison with it. The granting or withholding injunction, in such a case, is discretionary, and I think the complainant should be left to his action at law. Chambers v. Iron Co., 67 Ala. 353; Davis v. Sowell, 77 Ala. 262; McBryde v. Sayre, 86 Ala. 458, 5 South. 791; Iron Co. v. Dye, 87 Ala. 468, 6 South. 192.

BATES et al. v. VANDIVER et al. (Supreme Court of Alabama. Jan. 16, 1894.) FRAUDULENT CONVEYANCE-Preferring Cred

ITOR.

An insolvent may prefer a creditor by sale of goods in payment of a pre-existing debt, though they know it will prevent other creditors collecting their debts; the only conditions being that the debt be bona fide, that the goods be taken at a fair and adequate price, and that no benefit be reserved in behalf of the debtor.

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

Statutory claim suit between Bates, Kingsberry & Co., as plaintiffs, and W. F. Vandiver

& Co., as claimants. Judgment for claimants. Plaintiffs appeal. Affirmed.

Bates, Kingsberry & Co. sued out an attachment on a stock of goods which had been formerly owned by one J. B. Grant. The attachment was based on an affidavit alleging that the said Grant was about to fraudulently dispose of his goods. The ground of the plaintiffs' claim was three promissory notes executed to them by said Grant. Upon the levy of said attachment, W. F. Vandiver & Co., after making affidavit and executing bond, instituted a claim to said property so levied upon. Upon the trial of the issues involved in this claim suit, the plaintiffs, after offering in evidence the promissory notes which were the foundation of the suit, introduced evidence tending to show that at the time the judgment was levied the goods, wares, and merchandise so levied upon were in the storehouse owned and occupied by said Grant, and in the possession of said Grant. In rebuttal to this testimony, the claimants offered testimony tending to show that prior to the levy of said attachment the claimants had purchased and received the goods claimed by them in this case from said J. B. Grant in payment of an antecedent debt due them by Grant, and that the value of the goods was not greatly disproportionate to the amount of said debt. The plaintiffs offered a bill of sale made by said Grant to the claimants in evidence, and offered testimony tending to show that said bill of sale was drawn by A. H. Thomas, Esq., and under his direction, several days before the sale was made; that it was left blank, with the understanding that it should be filled in if Grant could not arrange his debts, and if it should be necessary for Grant to discontinue business. There was further evidence for the plaintiffs tending to show that numerous other bills of sale to various other creditors were drawn, in substance and form the same as the bill of sale to the claimants, as introduced in evidence, and that these several other bills of sale were held by said Thomas, as was the bill of sale in this case; that said Thomas during this time was acting as the retained attorney of the said Grant, and also of the claimants in this suit, as well as the various other preferred creditors. It was shown that the sales to the preferred creditors were made at night, after 10 o'clock. There was also evidence introduced for the plaintiffs tending to show that, at the time said bills of sale were drawn, it was understood by said Thomas and the said Grant that he, the said Grant, should continue his business in the regular way, and that when he was able to continue no longer, on account of the pressure of debts, the bills of sale were to be filled in and executed. There was also evidence introduced tending to show that on the night of the sale to the preferred creditors, when Thomas and Grant were in the store with the attorney of the attaching creditors, Thomas said that it was understood that the

preferred creditors were not to take the goods received by them from Grant, but that Mrs. Grant, the wife of J. B. Grant, was to purchase said goods, and continue the business in said store in her own name, to pay said preferred creditors the amount of their several debts; but that in four days after said sales and said levy the goods were claimed by said creditors, through said Thomas, and all of the entire stock was turned over to Mrs. Grant. She went into possession of the same, and afterwards paid the claimants and the other preferred creditors the amounts due them, without reference to the value of the goods; she having purchased the goods from the several preferred creditors, through said Thomas, at a price fixed by said J. B. Grant and Thomas, in the sale by said Grant to said creditors. The claimants introduced evidence to show that the date filled in the bill of sale to claimants was wrong, and that the date should have been August 26, instead of August 31, 1891.

Upon the introduction of all the evidence in the case, the plaintiffs requested the court to give the following charges: (1) "If the jury believe from the evidence in this case that the bill of sale made by Grant to W. F. Vandiver & Co. was drawn by Thomas several days before August 26, 1891, and that it was agreed between the parties that the bill of sale should be held by Thomas, as attorney for W. F. Vandiver & Co., until Grant was forced to close up and quit business, and that in the mean time Grant was to be allowed to remain in possession of the entire stock, including the goods intended to be included in said bill of sale, selling them for his (Grant's) own benefit, then the bill of sale is fraudulent, and your verdict will be for the plaintiffs." (2) "If the jury believe from the evidence in this case that, at the time the bill of sale was made, Grant and W. F. Vandiver & Co. fixed the value of the goods conveyed thereby at $218, then the claimants are estopped from denying that said goods were not worth $218." (3) "If the jury believe from the evidence in this case that some time between August 15, 1891, and August 26, 1891, A. H. Thomas, an attorney for the claimants at the time, had an interview with J. B. Grant in respect to his mercantile business, and that Grant hired said Thomas as his attorney, and that at that time the said Thomas was the attorney for the claimants, and also of Grant, and if the jury further believe from the evidence in this case that, while Thomas was so acting as attorney for said claimants and said Grant, he (Thomas) advised said Grant to sell said claimants enough goods out of his stock to pay said debt due claimants, and said Grant agreed to do so, and that they (said Grant and Thomas) agreed to have a bill of sale written up, with the understanding between said Thomas and Grant that said bill of sale was not to be thus executed, but was to be held by said Thomas until Grant

found out he could not continue business longer, and then the bill of sale was to be dated, and the goods conveyed thereby delivered to said Thomas as said attorney for claimants, and that said Grant still remained in possession of all of his stock of goods, selling them in the usual way, for his own benefit, up to August 26, 1891, then said transaction is fraudulent and void, and you will find for plaintiffs." The court refused each of these charges. The plaintiffs separately excepted to the refusal of the court to give said charges, and also separately excepted to the court's refusal to give the following written charges requested by the claimants: (1) "The fact, if it be a fact, that Thomas was a willing tool for Grant, does not affect the title of Vandiver & Co. If it be shown from the evidence that Grant owed Vandiver & Co. the sum of $144; that he paid the same by the sale of goods mentioned in the bill of sale; that the sale was absolute, at a fair price, and not greatly disproportionate to said amount of $144; and that he (Grant) reserved no use or benefit therein,-the verdict will be for the claimants." (2) "The fact, if it be a fact, that Grant ordered goods a few days before he failed, does not affect the claimants in this case. If it be shown from the evidence that Grant owed Vandiver & Co. the sum of $144, and in payment thereof sold and delivered to them goods, wares, and merchandise not greatly disproportionate in value thereto, and reserved no benefit to himself, then, if these facts be shown, the jury will find for the claimants." (3) "The court charges the jury that if J. B. 'Grant sold the goods to W. F. Vandiver & Co. in payment of a just debt, past due, at a price not materially less than the value of the goods, and reserved no interest or benefit to himself in the goods so sold to Vandiver & Co., the jury will find a verdict for claimants, W. F. Vandiver & Co., even if there was a fraudulent intent on the part of one or both of the parties to the transaction." (4) "Before the jury can find for the plaintiffs in this case, they must show a state of facts which not only casts a suspicion on the sale of the goods by Grant to W. F. Vandiver & Co., but must show a state of facts which are not fairly and reasonably reconcilable with fair dealing and honesty of purpose; otherwise, they must find for the claimants, W. F. Vandiver & Co." (5) "Even if the sale of the goods was made hurriedly, in the night, and Mr. Grant sold the goods to W. F. Vandiver & Co. for the purpose of defrauding his other creditors, and W. F. Vandiver & Co. knew of that purpose, yet if they bought the goods at a reasonable price, to pay an honest debt, past due, from Grant to Vandiver & Co., reserving no use or benefit in the goods to Grant,-they not participating in Grant's fraudulent intent or purpose, then the jury must find a verdict for the claimants, W. F. Vandiver & Co." "It makes no odds how many other debts

(6)

Grant owed. It makes no odds how many of his creditors he preferred. It makes no odds how many goods he sold to other creditors to pay their respective debts, nor the effect these sales may have had in defeating the payment of other creditors, nor the great amount of goods he had and was buying. If the jury believe from the evidence that he owed the debt to W. F. Vandiver & Co., and paid it by a sale of goods not greatly disproportionate in value to the amount of the debt, and reserved no interest in the goods sold to W. F. Vandiver & Co., then the jury will find for the claimants, W. F. Vandiver & Co., though these plaintiffs may never realize anything upon their claims." (7) "The jury, in deciding whether the goods taken by W. F. Vandiver & Co. from J. B. Grant in satisfaction of the debts alleged to be due from Grant to W. F. Vandiver & Co., were worth more than the amount alleged to be due from Grant to W. F. Vandiver & Co., were worth more than the amount of the alleged debt, must take into consideration the condition the goods were in at the time they were so taken; and if the jury find from the evidence that the goods were shopworn, or were injured in the usual course of legitimate trade, the jury must take that fact into consideration, in arriving at the actual value of the goods so taken." George W. Peach, for appellants.

COLEMAN, J. This action was for the trial of the right of property between Bates, Kingsberry & Co., as attaching creditors of J. B. Grant, and W. F. Vandiver & Co., claimants. All the assignments of error arise upon charges given and charges refused by the trial court. No new questions are involved. No principle of law is better settled by the adjudications of this court than that an insolvent debtor may, by a sale of goods in payment of a pre-existing debt, prefer one or more of his creditors to other creditors. The conditions upon which such preference is upheld are that the bona fides of the debt must be established, that the goods accepted and received in payment of the debt were taken at a fair and adequate consideration, and that no benefit was reserved or contracted for in behalf of the debtor. Where these conditions exist, there is no room for fraud. The fact that the parties knew the effect of the transaction would be to prevent the other creditors from collecting their debts does not affect the validity of such a transaction. The reasons for these conclusions have been given in many decisions. We will not repeat them. See Pollock v. Meyer, (Ala.) 11 South. 385, where the decisions are collected and cited. All the charges given for claimant, framed in different language to meet the varying phases of the evidence, assert the principle declared above. Those requested by the plaintiffs assert a contrary conclusion, and were properly refused. There is no error in the record. Affirmed.

TRAYLOR et al. v. STATE.

Feb. 1, 1894.)

(Supreme Court of Alabama. VAGRANCY-COMPLAINT-SUFFICIENCY-EVIDENCE. 1. A complaint alleging that affiant believes that defendant, "having no visible means of support, or being dependent on his labor, lives without employment," is sufficient, (Code, § 4047;) it not being necessary to aver, in addition, that he was able to work. Boulo's Case, 49 Ala. 22, overruled.

2. Where no objection was made to an improper question, the answer will not be excluded as inadmissible.

Appeal from criminal court, Pike county; William H. Parks, Judge.

Jere Traylor and Coleman Dangerfield were convicted of vagrancy, and appeal. Affirmed.

Wm. L. Martin, Atty. Gen., for the State.

COLEMAN, J. The defendants were convicted of vagrancy. The court overruled a demurrer to the complaint, and also overruled the motion of the defendants to exclude certain testimony. These are the two questions presented by the record for our consideration.

That portion of section 4047 of the Code under which the defendants were prosecuted reads as follows: "Any person, who, haying no visible means of support, or being dependent on his labor, lives without employment, or habitually neglects his employment

* must on conviction, for the first offense be fined," etc. The complaint follows the statute, charging that affiant "has probable cause for believing, and does believe, that, within twelve months before making this affidavit in said county, Jere Traylor, having no visible means of support, or being dependent on his labor, lives without employment, against the peace and dignity of the state of Alabama," etc. The demurrer is "that said warrant fails to allege, substantially, that the defendants were ablebodied, or physically able to follow some employment for support." The facts stated as ground for demurrer might constitute a defense to the prosecution, but, certainly, it is not necessary to aver these in the complaint. The general rule is that when a statute creates an offense, prescribing its constituents, it is sufficient, in an indictment, to pursue the language of the statute. Grattan v. State, 71 Ala. 344; Danner v. State, 54 Ala. 127; and many others cited in note to section 4370 of the Code. The complaint conforms to this rule, and the facts averred in the demurrer are merely such as might be offered in defense. We think the principle declared in Boulo's Case, 49 Ala. 22, not in conformity with the general rule; and its adoption would lead to the proposition that it is necessary to aver, affirmatively, not only the commission of the offense, but that the person charged was capable of committing the offense.

The state introduced testimony that de

fendants said they were fortune tellers, and some witnesses testified that defendants told their fortunes, but made no charges for telling fortunes. This evidence seems to have been brought out in response to questions calculated to elicit such answers. There was no objection to the questions, but, after the witnesses had answered the questions, the defendants moved to exclude the answers "on the ground that said testimony was inad missible." The law will not allow a party to wait, without dissent, until the witness answers an improper question, and, if favorable, claim the advantage, but, if prejudicial, then move to exclude it. He cannot thus speculate upon the answer to an improper question. McCalman v. State, 96 Ala. 98, 11 South. 408; Railway Co. v. Kimbrough, 96 Ala. 126, 11 South. 307. Moreover, we are not prepared to say such testimony did not tend to support the charge of vagrancy. Affirmed.

PAUL v. STATE.

(Supreme Court of Alabama. Jan. 18, 1894.) WITNESS-CREDIBILITY-INSTRUCTIONS-CRIMINAL LAW-CHARACTER OF DEFENDANT.

1. Where a witness is impeached by proof of contradictory statements, an instruction that such proof should "weigh heavily" against the witness invades the province of the jury. evidence, the jury have no reasonable doubt of 2. A charge that if, after weighing all the defendant's guilt, the evidence of his good character can generate a reasonable doubt, is er

roneous.

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

Jim Paul was convicted of carnally knowing, or of abusing in the attempt to carnally know, a girl under 10 years of age, and appeals. Affirmed.

On the trial, as is shown by the bill of exceptions, the state introduced evidence tending to show that the defendant did attempt to have carnal knowledge of Maggie Belle Robinson, and injured her in such attempt. It was shown that the said Maggie Belle Robinson was a girl under 10 years of age. Sarah Drake, one of the state's witnesses, who testified that she saw the defendant attempting to carnally know the said girl, was asked if she did not whip the said Maggie, and answered, "No." Upon being asked "if she had not stated to Sallie Goodwin, the morning before the preliminary trial of the defendant, that 'I intend to testify that I saw the whole thing,' and laughed," she answered, "No." Upon being asked "if she had not said to Sallie Goodwin, on the day the offense is said to have been committed, that, if I had gotten to the house where Jim Paul was, I would have whipped him instead of having him arrested,'" she answered "No." The testimony for the defendant tended in some respects to show that the defendant was not guilty as charged in the indictment, by the evidence of different