that a homicide not specifically designed in the outset might be committed, he would be held as guilty as though he had been present and personally participated in the homicide. This principle is so well understood, and has been so repeatedly and thoroughly considered in this court, as to require no further discussion. It is only necessary to refer to the cases. Williams v. State, 81 Ala. 5, 1 South. 179; Martin v. State, 89 Ala. 115, 8 South. 23; Gibson v. State, 89 Ala. 121, 8 South. 98; Griffith v. State, 90 Ala. 583, 8 South. 812; Tanner v. State, 92 Ala. 1, 9 South. 613. Whether or not there was such a conspiracy formed and petitioner was a party to it, are questions for the determination of the jury, under proper instructions from the court. For obvious reasons, we refrain from a discussion of the evidence, as we find it in this record. On this testimony, if a jury were to find the petitioner guilty of murder in the first degree, a trial judge would sustain the conviction. Bail was properly refused. Ex parte McAnally, 53 Ala. 498; Ex parte Nettles, 58 Ala. 275; Ex parte Sloane, 95 Ala. 22, 11 South. 14. Habeas corpus denied.

1. A demurrer will be presumed, on appeal, to have been waived, if the record does not show a ruling thereon.

2. The statute of frauds is not ground for demurrer to a bill to enforce a vendor's lien unless the bill affirmatively shows that the contract of sale was not in writing.

3. The statute of frauds, if not pleaded, is no defense to a bill to enforce a vendor's lien, though the evidence shows that the contract of sale was verbal.

4. A judgment in ejectment is no bar to a subsequent action by the defeated party to enforce a vendor's lien on the land in controversy in the ejectment suit.

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

Bill by C. D. Campbell against J. B. Harper to enforce a vendor's lien. Decree for plaintiff. Defendant appeals. Affirmed.

The bill alleges that on January 4, 1887, the complainant, through his agent, sold to the respondent, J. B. Harper, three lots in the town of Geneva, which are the lots in controversy, for the sum of $650, to be paid for in two months thereafter; that the said Harper was put in possession of said lots, and occupied the same, under a contract of purchase, until the 18th day of September, 1888, when he pretended to purchase two of the lots from one Dan Powell at the price of $175; that the said Powell and wife executed and delivered to the said John B. Harper their warranty deed to the lands; and that since that time the said Harper has set up an adverse claim to the lots, and refused to com

ply with the terms of the contract made with the complainant's agent for the purchase of the said lots. The bill further alleges that the complainant purchased the three lots in controversy from one Julia A. Fleming and her husband, the lands being a part of Mrs. Fleming's statutory separate estate; that this purchase was made on January 16, 1884, and the said Mrs. Fleming and her husband executed to the complainant their warranty deed for said lots, and the complainant went into possession of the same under said purchase, and occupied them as his homestead until November, 1886. It was further averred in said bill that in August, 1883, these same lots were sold at a sheriff's sale as the property of Mrs. Julia A. Fleming, and were purchased by H. A. Tankard, Mrs. Fleming's son-in-law, he buying them for her benefit at her request, and that the sheriff's deed was executed to the said H. A. Tankard; that the said H. A. Tankard borrowed from one Dan Powell $140 for the purpose of making the payment at the sheriff's sale, and that, in order to secure the payment of the said sum to Powell, H. A. Tankard executed a quitclaim deed to said lots, which, it was agreed, should be considered as a mortgage. On January 18, 1884, the complainant paid to said Powell $100 on said debt, for which amount the said Powell delivered to the complainant his receipt, acknowledging that it was paid on the mortgage debt of H. A. Tankard, and that the said Powell agreed to wait until the complainant could pay the same. It was further alleged in the bill that, within three weeks of said sale, Mrs. Fleming and her husband paid to the said H. A. Tankard $150, the amount he paid for said lots at the sheriff's sale, the said Tankard agreeing to take said amount in full redemption of said lots. The answer of the respondent was a general denial of the material allegations of the bill, but avers that the matters in controversy had been adjudged against the complainant in an action of ejectment he instituted against the defendant in the circuit court for the recovery of said lots. A demurrer was interposed, assigning several causes, among which was the statute of frauds; but this demurrer does not appear to have been ruled upon by the chancellor. The complainant's evidence sustained the averments of the bill, and tended to show that the defendant went into possession of the lot, first as a renter from the complainant's agent, and that, after he had occupied them as a tenant for a short time, he contracted with the said agent of the complainant for the purchase of the lot, agreeing to give $650 therefor, but that none of the purchase money agreed to be paid has ever, in fact, been paid. The defendant denied having purchased the lots from the complainant, but rested his title to the same upon a deed from Powell. On the final submission of the cause the chancellor granted the relief prayed for by the complainant, which decree is here assigned as

error.

H. L. Martin, for appellant. W. D. Roberts, for appellee.

STONE, C. J. There was a demurrer interposed, assigning, among other causes, that the contract of purchase of the lands was offensive to the statute of frauds; but this demurrer does not appear to have been called to the attention of the chancellor. He made no ruling or decision thereon. The presumption on error is that the demurrer was waived. Corbitt v. Carroll, 50 Ala. 315; Daughdrill v. Helms, 53 Ala. 62. If this presumption was not indulged, the demurrer is bad, obviously. The averment of the contract in the bill is general, not stating whether it was written or verbal. The statute of frauds is not available as a cause of demurrer unless it affirmatively appears from the averments of the bill that the contract or promise was not in writing. Bromberg v. Heyer, 69 Ala. 25; Phillips v. Adams, 70 Ala. 373; Manning v. Pippen, 86 Ala. 357, 5 South. 572. The defense of the statute, if not raised by plea or by the answer, is not available on the hearing, though it may appear from the evidence that the contract was only verbal. Shakespeare v. Alba, 76 Ala. 351, and cases cited.

2. The verdict and judgment in the ejectment suit were not conclusive as to the equitable rights and relations of the parties. That suit could be maintained or defended only on a legal right to the possession, without regard to the equities of the parties. 3 Brick. Dig. p. 324, § 27 et seq. The verdict and judgment are conclusive only that the appellee had not, at the commencement of the suit, the legal right to the possession. We find no error in the record prejudicial to the appellant, and the decree must be affirmed.

Act March 1, 1881, authorizes the parties, by written agreement filed with the clerk of the city court of Montgomery, to transfer their case to the circuit court of the county, and provides that the clerk of the city court shall make a transcript, etc., and deliver the same, and all the original papers, to the clerk of the circuit court; but that no cause shall be transferred until the costs, including the costs of transcript, shall be paid to the clerk of the city court. Held that, where parties agreed to so transfer their case, and that "defendants pay the costs" of certain witnesses named, plaintiff was not entitled to have the case docketed in the circuit court without first paying the costs other than the costs of such wit

nesses.

Petition by Martha Ann Burton for a writ of mandamus, directed to John R. Tyson, judge of the circuit court of Montgomery county, to compel him to reinstate a certain action by petitioner against A. C. Parker & Co. and others, which was by agreement of

parties transferred to such court from the city court of Montgomery, and afterwards stricken from the docket on motion of defendants. Petition denied.

Sayre & Pearson, for petitioner. A. A. Wiley, for defendant.

MCCLELLAN, J. The act of March 1, 1881, relating to the transfer of causes from the city court of Montgomery to the circuit court of Montgomery county, and vice versa, makes it competent for the parties, by agreement in writing filed with the clerk of either of said courts in which their cause is pending, to transfer the same to the other of said courts, etc., and provides, further, as follows: "That upon such agreement being filed with the clerk, it shall be his duty to make a certified transcript of all orders, minute and docket entries in such cause, and to deliver the same, with all the original papers in the cause, to the clerk of the court to which the cause is transferred, provided, that the clerk shall not be required to perform any of the duties prescribed by this section, and no cause shall be transferred, until the costs that have accrued, including the costs of transcript, shall first be paid to the clerk of the court in which the cause is pending." Acts 1880-81, pp. 268, 269. In the case of Martha Ann Burton v. A. G. Parker & Co. et al., which had been commenced, and was at the time pending, in the city court of Montgomery, the parties, on October 17, 1892, entered into the following agreement of transfer: "It is agreed that this case may be transferred to the next term of the circuit court, and that the defendants pay the costs of witnesses Russell, Burton, and Shank Burk in attending court at the present term of the city court of Montgomery." And, upon this agreement, the city court, on the day of its execution, made the following entry: "This day came the parties by their attorneys, and agree in writing that the case be removed and transferred to the next term of the circuit court, and that the defendants pay the costs of witnesses Russell, Burton, and Shank Burk in attending court at present term of this court." It is admitted that this agreement of transfer "was made at the instance of the defendants." Upon the execution of this agreement, and its entry as above on the records of the city court, the plaintiff took the original papers in the cause to the clerk of the circuit court and had the case docketed in that court, but she did not procure from the clerk of the city court, nor file in the circuit court, "a certified transcript of all orders, minute and docket entries" made in the city court, and she did not pay the costs that had accrued in that court, nor have said costs ever been paid. At the January term, 1893, of the circuit court, "the circuit judge, on motion of the defendants, struck the case from the docket and dismissed it from said court" on the ground

that it had not been properly removed from the city into the circuit court in the manner required by the statute; no transcript being filed, and the costs of the city court not having been paid. The plaintiff, acquiescing in this order, thereupon carried the file back to, and had the cause re-docketed in, the city court, and at the February term, 1893, of said court, the cause was, on motion of defendants, stricken from its docket and dismissed on the ground that it had been discontinued therein. This action appears, also, to have been acquiesced in by the plaintiff, who afterwards procured the transcript contemplated by the statute, and filed it and the original papers in the circuit court, and had the cause again docketed there by a different number; but, as has been stated, the costs which had accrued in the city court were not, and have never been, paid. On this state of case the circuit judge again struck the case from the docket of his court, and this application is for a mandamus to compel its reinstatement thereon.

Conceding, without deciding, that mandamus is plaintiff's remedy if she had the right she is now attempting to assert,—namely, the right to have this case on the docket of the circuit court,—we are constrained to deny the relief prayed, because our conclusion is that the case was never properly on the docket of the circuit court, and, being actually there, the judge of that court properly struck it off. It is not contended but that the payment of the costs which had accrued in the city court would ordinarily have been a condition precedent to any efficacious removal of the case into the circuit court, but it is insisted that, under the particular facts shown here, the duty to pay these costs was on the defendants, because the agreement of transfer had been entered into at their instance, and that, in consequence, they could not be heard to question the validity of the removal on that ground; and it is also insisted that, leaving the duty to pay costs out of view, the defendants are yet estopped to question the removal, because the agreement to that end was entered into at their instance. Both these contentions are emasculated, in our opinion, by the terms of the agreement, even granting that they involve the conclusion sought to be deduced, if they were supported by the facts, which we do not decide. As we read the agreement, it relieves the de fendants from the payment of all cost, except that of certain named witnesses at the current term of the city court, on the maxim, "expressio unius, exclusio alterius." It is stipulated that certain costs were to be paid by the defendant, and, being silent as. to all other costs, all of which had to be paid before there could be a removal,-the only reasonable conclusion is that plaintiff was to pay all other costs; since, had the intention of the parties been otherwise, they would have so expressed it, or, at least, been silent on the subject, instead of stipulating that the

defendants should pay the costs of certain named witnesses at a specified term of the court. And the fact that the agreement to transfer the cause was made at the sugges tion or instance of the defendants loses any importance it might otherwise have had, when considered with reference to the terms of the agreement as we understand them. Their request for a transfer was for a transfer upon the conditions embodied, or clearly implied, in the agreement,-a transfer upon which, or rather as a condition precedent to which, the plaintiff was to pay all the cost which had accrued in the city court, except that incurred on account of the attendance of certain witnesses at the term of the court. They did not request a transfer except upon these conditions, and they cannot be estopped, by their request, to question the validity and efficacy of any transfer attempted without compliance with these conditions. The thing they requested has not been done, and they cannot be holden to acquiescence, because of their request, in the different thing which was done. On these considerations,and there are probably others leading to the same conclusion,-we hold that the judge of the circuit court properly struck the cause from the docket of that court, and decline to command him to reinstate it. Petition denied.

In quo warranto to annul the charter of a water company of a city because it had willfully failed for three years to furnish such city with a sufficient supply of water, an answer by respondent that it had enlarged its works and increased its water supply up to a certain date, and was then negotiating for other wells which would supply all necessary demands, and that it ceased such negotiations because the city had declared its intention to exercise its option to purchase such waterworks, is insufficient to constitute a defense.

Appeal from city court of Montgomery: T. M. Arrington, Judge.

Proceeding in the nature of quo warranto by the state of Alabama, on relation of Gordon McDonald, against the Capital City Wa ter Company to annul defendant's charter. From a judgment for respondent, relator appeals. Reversed.

Gordon McDonald and W. L. Bragg, for appellant. J. M. Falkner, for appellee.

HEAD, J. The petition must be taken as making a case calling for the forfeiture of the defendant's charter, as a corporation, without investigation by us of the sufficiency of its allegations, or the correctness of the practice pursued, for the reason that the motion to quash and the demurrer to the petition were overruled by the court below, and those rul ings are not before us for review; the verdict

and judgment on the merits having been in favor of the defendant. There is no cross assignment of errors. We are only to pass upon the sufficiency of the defendant's answer or plea, as tested by the relator's demurrer to it. The substance of the relator's complaint is that it was the duty of the defendant, as a corporation, to furnish the city of Montgomery, and the residents thereof, a sufficient supply of pure, wholesome water for their domestic and other uses, which duty it willfully and persistently refused and failed to perform for the space of, to wit, three years. The plea, which the court sustained on demurrer, sets up, as an excuse for its failure to furnish the water as alleged, that it had "from time to time enlarged its works and increased its water supply up to and including the 7th day of October, 1890, when the city council of Montgomery notified it that it (the city council of Montgomery) exercised its option to purchase the works of the defendant, as it had a right to do, under section 17 of the ordinance contract between the said city council of Montgomery and the defendant; and that, at the time of said election by said city council of Montgomery to purchase said works, it was then negotiating with experts to bore a sufficient number of wells to supply all the demands upon defendant for water for the city of Montgomery and its inhabitants; but that, owing to said election, it was advised that it was not authorized to add to the amount in any way which the city council of Montgomery would be compelled to pay as the price of said works, and for this reason alone it did not contract for the boring of additional wells, or for an increased supply of water; and defendant avers that the city council of Montgomery is still insisting on its right to purchase said works under said election, and the question of purchase and sale is still undetermined." The demurrers, with sufficient definiteness, question the sufficiency of these allegations as a defense to the action.

We have no hesitation in affirming that the plea is bad. It shows no lawful excuse whatever for the alleged failure to perform its alleged corporate duty. In the first place, the fact that it had from time to time enlarged its works and increased its water supply, up to the 7th day of October, 1890, and was then negotiating with experts to bore other wells which would supply all necessary demands for water, falls very far short of showing that it had done its duty up to that time. In perfect consistency with these allegations, the defendant's plant may have been, from its original erection, of the most diminutive and inadequate character and extent, and the enlargement of its works and increase of its water supply the most insignificant, involving gross and willful disregard of duty. The plea, to be good, should state facts which show, as a necessary conclusion, that it discharged its duty under the circumstances, or that it was not guilty of such a breach of

duty as is alleged against it. Again, the plea states, by way of assumption, without express averment, that some sort of an ordinance contract had been entered into between the defendant and the city council of Montgomery. When, under what circumstances, what terms, and by what authority, on the part of either of the contracting parties, the contract was entered into, we are not informed, except as to what we got from the statement in the plea that on October 7, 1890, -about a year and a half before this petition was filed, "the city council of Montgomery notified defendant that it (the city council of Montgomery) exercised its option to purchase the works of the defendant, as it had a right to do, under section 17 of the ordinance contract between the said city council of Montgomery and the defendant;" and that defendant "was advised that it was not authorized to add to the amount in any way which the city council of Montgomery would be compelled to pay as the price of said work." We are so devoid of information as to the nature and terms of the contract, and the circumstances under which it was entered into, that we can pass no intelligent judgment upon the power of the city, as a municipal corporation, to make it, or the rights and duties of the parties under it. The contract, without more in reference to it than the plea alleges, exerts no influence on this case. Presumptively, the defendant had no authority to enter into a contract which would disable it to perform the public service for which it was chartered. Its franchise was to furnish water to the city and the residents thereof, -a duty of a public nature,-and, without legislative authority, it could do no act and make no contract which would render it impossible or impracticable to discharge that duty. It must show its authority in the premises. If the defendant desires to plead specially justification or excuse, it must show, by allegation of facts, not the mere assumptions and conclusions of the pleader, but facts from which the court will necessarily draw the conclusion that it did, under all the circumstances, that which its charter engagement reasonably required of it, in such manner and to such extent that the court, in the exercise of a sound legal discretion, ought not to take from it its charter. The plea is bad, and the city court erred in overruling the demurrer to it; for which error the judgment is reversed and the cause remanded. Reversed and remanded.

CRAFT v. WILCOX et al. (Supreme Court of Alabama. Feb. 7, 1894.) FRAUDULENT CONVEYANCEs-Subsequent CredITORS-PLEADING.

1. The bill charged that the debtor's prior mortgage was fraudulent; that the grantee knew and aided the debtor's intent to defraud future creditors; that, after complainant's claim was reduced to judgment, the members of the

debtor firm and others incorporated, and the property was sold to the corporation, subject to the mortgage, for stock subscribed; that nothing was paid by the subscribers, and the transfer was made to defraud complainant, with the knowledge of the others; that the corporation was insolvent, and sold out the property to G. and S., who were now in possession; that G. and S. bought on credit, with knowledge of the corporation's insolvency and its intent to hinder and defraud complainant. Held, that the bill had equity.

2. A bill to reach property fraudulently conveyed by the debtor in the hands of a subsequent grantee is not multifarious if it join as defendants the debtor and all persons through whom his title has been conveyed, as well as the present holders.

Appeal from chancery court, Conecuh county; Jere N. Williams, Chancellor.

Bill by John Craft against G. W. Wilcox & Co. and others to subject to his judgment against said Wilcox & Co. certain property formerly owned by them. Demurrer sustained, and bill dismissed. Complainant appeals. Reversed.

Richardson & Reese, for appellant. Farnham & Crum, for appellees.

COLEMAN, J. The case comes up from a decree sustaining a demurrer to the bill. The bill was filed by John Craft as a creditor of G. W. Wilcox & Co., and it seeks to have set aside and annulled a mortgage of certain property, executed by the debtor to W. D. Brown & Co., and several subsequent grants of the same property. All of said grantees are made parties defendant. The mortgage to W. D. Brown & Co., which is assailed as fraudulent and void, was executed and duly filed for record on the 5th of June, 1890. On the 5th of August, 1890, two months subsequent to the execution of the mortgage and its registration, complainant's debt was contracted. The bill is filed in the name of John Craft, and on behalf of all other creditors who may come in and make themselves parties complainants. It is averred, generally, that there were existing creditors at the date of the mortgage; but no particular debt is mentioned, and no creditor named, and none have come in and requested to be made parties complainant. The bill must be considered, at present, without reference to any other creditors, if there be such. Voluntary conveyances, or where entered into with a fraudulent intent, are valid between the parties, and can be avoided by a subsequent creditor only upon averment and proof of actual fraud,-that it was executed with fraudulent intent, and for the fraudulent purpose of defeating subsequent creditors in the collection of their claim. Seals v. Robinson, 75 Ala. 363; 3 Brick. Dig. p. 515, par. 119. The bill charges that the mortgage was "without valuable consideration, false, simulated, and fictitious; that the grantee had knowledge of the fraudulent intent of the grantor, and aided the purpose and the intent to defraud future creditors." The averments are sufficient on this point. There is a statement in

the bill not altogether in harmony with the averment, and that is that the mortgagors "have paid on said indebtedness an amount exceeding three thousand dollars, but that W. D. Brown & Co. claim there is a large balance yet due, which claimants deny;" but we are not called upon to consider this question, if it merits consideration. Complainant's claim was reduced to judgment October 15, 1890. Subsequent to this, 16th of November, 1890, G. W. Wilcox, John White, and Caroline White, who compose the firm of G. W. Wilcox & Co., and David Corbett and Charles Cummins, were incorporated as the Peach Bloom Lumber Corporation. The bill avers that, "subject to the mortgage to W. D. Brown & Co., the mortgaged property was sold and transferred to the corporation in payment of the stock subscribed; that in fact nothing was paid for it by any of the subscribers to stock or corporators or corporation, and that this was done to hinder, delay, and defraud complainant by the members of the firm of Wilcox & Co., which was known to the other subscribers for stock and corporators; that they participated in the fraud, and aided in the fraudulent purpose." The bill avers that the corporation was insolvent and ceased to do business, and sold out the property to Wallis Glover and W. H. Stewart & Son, and that Glover and Stewart are now in the possession of the property, controlling and claiming it. The bill avers that neither Myers, nor Glover and Stewart & Son, nor Stewart, "paid any valuable consideration to said corporation; and that said purchase was on credit, with the knowledge of the insolvency of the corporation; and that the sale was made to hinder, delay, and defraud complainant. It does not charge that the grantees from the insolvent corporation participated in the fraudulent intent. A voluntary grantee from a fraudulent grantee cannot claim to be an innocent purchaser. The fraud of his grantor will be visited upon him. The rights of an innocent grantee in property, who purchased from a fraudulent grantor upon a credit, and becomes bound for the purchase money, is not raised by the demurrer, nor is the want of consistency in these averments presented. See Pickett v. Pipkin, 64 Ala. 520; Seals v. Robinson, 75 Ala. 371; McGhee v. Bank, 93 Ala. 192, 9 South. 734. The specific grounds of demurrer are (1) that the bill is multifarious; (2) there is no equity in the bill, inasmuch as it appears that the mortgage was executed prior to the contract of the debt of the complainant. The whole purpose of the bill is to reach and condemn certain property conveyed by the debtor to the satisfaction of complainant's debt. The property is traced through several successive grantees to the present holders. The conveyance to the mortgagees and to the corporation and corporators are charged to have been made with fraudulent intent, in which the grantees participated. Actual fraud is averred. The bill avers that the sale or