transfer from the corporation and from Myers were without consideration. The bill has equity, and is not objectionable on the ground of multifariousness. Reversed and remanded.

MCMILLER, Judge, v. BERRY. (Supreme Court of Alabama. Jan. 16, 1894.)

STATUTES-TITLES-CONSTITUTIONAL LAW.

Act Feb. 9, 1893, entitled "An act to declare inoperative an act entitled 'An act to change the boundary lines between the counties of Talladega and Clay, in this state,' approved January 10, 1877, and to provide for the location of the lines between said counties," violates Const. art. 4, § 2, providing that no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only.

Appeal from city court of Talladega; John W. Bishop, Judge.

Petition by Ann Berry for mandamus to G. K. McMiller, as judge of probate. Granted. Respondent appeals. Affirmed.

The petition in this case was addressed to the judge of the city court of Talladega county, and prayed that a peremptory writ of mandamus be issued to Hon. G. K. McMiller, judge of probate of Talladega county, Ala., to compel him to receive and file as an office paper, and to transmit to the auditor of the state of Alabama, together with his certificate that he believes the statements therein were entitled to credit, if he does so believe, the petitioner's application for the benefits conferred under the act of the general assembly entitled "An act for the relief of Confederate soldiers and sailors, residents of Alabama, who, from wounds or other causes, are now unable to earn a livelihood, and for the widows of such as were killed, or who have died in such war, and have not since remarried," approved February 13, 1891. Acts 1890-91, p. 624. The allegations of the bill set forth that the petitioner, Ann Berry, was the wife of one John Berry, who was a soldier in the service of the Confederacy, and who died during the war, while in such service, from disease contracted in said service; that she had never remarried; that she was a resident citizen of Talladega county, Ala.; that her taxable property does not exceed $400 in value, and she is now physically unable to make a livelihood by labor; and that she holds no office; and that her gross income does not exceed $400 per annum. was further made to appear in said petition that she had filed her application with G. K. McMiller, as judge of probate of Talladega county, which was duly sworn to before him, by which she asked for the benefit of the act of the general assembly approved February 13, 1891, the title of which is copied above; that said G. K. McMiller, as judge of probate of Talladega county, had refused to file her said application as an office paper, and transmit a copy of the same to the auditor of the state of Alabama with the statement that he

It

believes the said certificate entitled to credit; that this refusal was solely upon the grounds that the said petitioner did not reside in Talladega county, and that, under the provisions of the act of the general assembly of Alabama entitled "An act to declare inoperative the act entitled 'An act to change the boundary lines between the counties of Talladega and Clay in this state,' approved January 10, 1877, and to provide for the location of the lines between said counties," approved February 9, 1893, (Acts 1892-93, p. 343,) the petitioner was a resident of Clay county. It was also alleged in said petition that the petitioner resided in section 4, township 20, range 6 east, in the Coosa land district. In answer to the rule nisi, which was issued upon the filing of the petition, the respondent admitted that the petitioner was in all respects entitled to the benefits of the act for the relief of the Confederate soldiers and sailors, residents of Alabama, etc., (Acts 1890-91, p. 624;) but it was denied that she was a resident of Talladega county, it being set up in such answer that she had become a resident of Clay county under the provisions of the act of February 9, 1893, (Acts 1892-93, p. 343.) The cause was heard upon the pleadings, and upon an agreed statement of facts, in which the facts alleged in the petition were agreed to be substantially the same in all respects, except that the petitioner was a resident of Talladega county; but it was admitted that the section on which the petitioner dwelt in the Coosa land district was in Talladega county, unless said section was merged into Clay county under the act of the general assembly of Alabama approved February 9, 1893, above referred to. The court, in its judgment, decreed that the act of the general assembly approved February 9, 1893, was unconstitutional, as violative of section 2, art. 4, of the constitution, and ordered that the peremptory writ of mandamus be issued to G. K. McMiller, judge of probate of Talladega county, in accordance with the prayer of the petitioner. This judgment is appealed from, and the same is assigned as error.

G. K. McMiller. in prò per. C. C. Whitson and Knox & Bowie, for appellee.

HEAD, J. The act entitled "An act to declare inoperative an act entitled 'An act to change the boundary lines between the counties of Talladega and Clay in this state,' approved January 10, 1877, and to provide for the location of the lines between said counties," approved February 9, 1893, (Pamph. Acts 1892-93, p. 343,) is violative of so much of section 2 of article 4 of the constitution as provides that no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length. Rogers v. Torbut. 58 Ala. 523; Stewart v. Commissioners, 82

Ala. 209, 2 South. 270; Judson v. City of Bessemer, 87 Ala. 240, 6 South. 267; Road Co. v. O'Donnell, 87 Ala. 378, 6 South. 119; Stewart v. State, (Ala.) 13 South. 943. The act is of such character that no part of it can stand and be administered without the rest. There was no error, therefore, in the ruling of the circuit court, and its judgment is affirmed. Affirmed.

EDINBURGH AMERICAN LAND MORTG. CO., Limited, v. PEOPLES et al. (Supreme Court of Alabama. Jan. 16, 1894.) MORTGAGE OF HOMESTEAD ACKNOWLEDGMENT- EMBEZZLE

JUSTICE OF PEACE- JURISDICTION
MENT BY AGENT-LIABILITY OF PRINCIPAL.

1. A mortgage of a homestead was void, where the certificate of the wife's acknowledgment stated that it was made in H. county, before a justice of the peace of H. county, whereas such justice took the acknowledg ment and made the certificate at the homestead, in G. county.

2. An applicant for a loan, who agreed to pay M., as his attorney, a reasonable fee for taking the application, conducting the correspondence, making an abstract of title, and securing and paying over the money, was liable for the amount of the loan where M., on receiving it, embezzled it, and fled the country.

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

Bill by the Edinburgh American Land Mortgage Company, Limited, against John W. Peoples and others, to foreclose a mortgage. Cross bill to set aside the mortgage. From a judgment dismissing the bill, and setting aside the mortgage, complainant appeals. Modified.

The mortgage sought to be foreclosed by the bill was one executed by John W. Peoples and his wife, Martha A. Peoples, and was given to secure a loan of money made by the complainant to the said John W. Peoples. The land contained in the mortgage was the homestead of the mortgagor, contained 160 acres, and was worth less than $2,000. The defendants answered the bill, alleging the fact that the mortgage was null and void as a conveyance of the homestead in that the officer before whom the acknowledgment of the wife was made was an officer of Henry county, while the acknowledgment was taken and made in Geneva county; and the defendants prayed that their bill be taken as a cross bill, and that the mortgage be declared null and void, and the notes canceled.

M. E. Milligan, for appellant. T. M. Espy, for appellees.

STONE, C. J. The present litigation originated in a bill filed by the appellant to foreclose a mortgage having the signatures of John W. Peoples and Martha A. Peoples, his wife. Other persons were made parties defendant, on the allegation that they, too, claimed to be mortgagees, or asserted some interest in, or lien on, the land which the appellant sought to have sold in the foreclosure

proceedings; and two cross bills were filed, each of which prayed relief antagonistic to that claimed by appellant. There was a decree on all the issues presented, denying all relief to complainant in the original suit, but granting some relief under the cross bills. From that decree the Land Mortgage Com pany alone appealed to this court, and alone assigns as error that "the court below erred in rendering the final decree in said cause.” We will consider the questions presented only to the extent the decree affects the interests of the Edinburgh American Land Mortgage Company, Limited.

The real estate described, and claimed to have been conveyed, in the mortgage, is situated in Geneva county, and contains 160 acres, -neither more nor less. It is clearly proved, and nowhere denied, that, at the time the mortgage was executed,-May 26, 1891,-Peoples resided on the lands as his home, that he

was a married man, and that the tract was worth less than $2,000. The certificates of acknowledgment of the execution of the mortgage declare on their face that each of them was made in Henry county, and before a notary public and ex officio justice of the peace of that county. This was, and is, the only certificate of acknowledgment of the execution of the mortgage, either by John W. Peoples or Martha A. Peoples, his wife. The certificate of acknowledgment is in the exact form prescribed by the statute for the execution of the conveyance of a homestead by husband and wife. Code 1886, § 2508, and form. The language employed is above criticism. The proof is full and uncontradicted that the acknowledgment was taken and certified at the home of Peoples, in Geneva county, the justice of the peace of Henry county going into Geneva county for that purpose. It is contended for appellant that, the certificate being in statutory form, and by an officer having authority to take such acknowledgment,-in other words, being free from imperfection on its face,-testimony will not be received to contradict the recital that Mrs. Peoples, being examined separate and apart from her husband, appeared before the officer, was known, or made known, to him, and "acknowledged that she signed the same of her own free will and accord, and without fear, constraint, or threats on the part of the husband." This is certainly the general rule, and, to a certain extent, is unquestionably sound. Miller v. Marx, 55 Ala. 322; Moses v. Dade, 58 Ala. 211; Rogers v. Adams, 66 Ala. 600; Moog v. Strang, 69 Ala. 98; Vancleave v. Wilson, 73 Ala. 387; Downing v. Blair, 75 Ala. 216; Dent v. Long, 90 Ala. 172, 7 South. 640; Shelton v. Aultman & Taylor Co., 82 Ala. 315, 8 South. 232. It is equally well settled that when there is no certificate of such acknowledgment by the wife, or there is a substantial defect in the acknowledg ment, or, rather, in the certificate thereof, such conveyance of the homestead is absolutely ineffectual. Scott v. Simons, 70 Ala.

not allege the existence of the relation of landlord and tenant," and duly excepted to the court's overruling his objection. The plaintiff was then asked if the said McVay was in possession of the same property prior to 1890, to which question the defendant objected because it was illegal and irrelevant, and duly excepted to the court's overruling his objection. The witness answered that he was. The defendant objected, and moved to exclude this answer, and duly excepted to the court's overruling this objection and motion. The plaintiff was then asked "if the defendant, Kelly, paid the plaintiff, McVay, rent for the years 1888 and 1889." The defendant objected to this question, and excepted to the court's overruling his objection. The witness answered that he did. The defendant duly excepted to the court's overruling his motion to exclude this answer from the jury. This last question was prefaced with the statement made to the court that the plaintiff "expected to show by the witness that there had been no change in the possession of the premises in the year 1890, and that the defendant knew this fact." The plaintiff, on being asked if he told the defendant that McVay was under contract with him for the rent of the premises during 1890, answered that he had; and to this question and answer the defendant separately objected, and separately excepted to the court's overruling each of his objections. The court permitted the plaintiff, against the objection and exception of the defendant, to introduce in evidence a note purporting to have been given by the said McVay to the plaintiff for the rent of the lands in 1890. On the cross-examination as a witness, the plaintiff was asked if the defendant "was owner of the said lands rented to said McVay in the year 1890, and, if not, what interest he had in said lands." The court sustained the plaintiff's objection to this question, and the defendant duly excepted. The defendant, being introduced as a witness, offered in evidence a mortgage purporting to be duly executed and acknowledged by said L. C. McVay, Jr., to the defendant, "to secure an indebtedness to the defendant from said McVay of $700, which said mortgage conveyed the place on which the said McVay lived, together with the crops raised by him and others in the year 1890." The plaintiff objected to the introduction of the said mortgage in evidence because it was irrelevant and immaterial, and because the defendant did not connect it with the cotton received by him. The court sustained the objection, and the defendant duly excepted. At the request of the plaintiff, the court gave the following written charges, and to the giving of each of them the defendant separately excepted: (1) "If you believe from the evidence that Kelly did not know that Eyster had a lien for rent upon the cotton raised upon the rented premises, and at the same time had notice of facts which, if he had pur

sued, would have enabled him to have ascertained its existence, he could not claim protection against said lien." (2) "I charge you that, under the evidence in this case, that McVay was Eyster's tenant, and that Kelly knew that he was such tenant." Upon the return of the verdict of the jury, the defendant moved in arrest of judgment, on certain specified grounds, which motion was overruled by the court. Thereupon, the defendant moved the court to grant a new trial, on the grounds (1) that the verdict was contrary to the evidence; (2) that the verdict was contrary to the law as given in the court's charge to the jury; (3) the verdict was contrary to the law and the evidence; (4) that the court erred in giving the charge numbered 1, requested by the plaintiff. This motion was overruled, and the defendant duly excepted.

O. M. Sherrod and Thos. R. Rouehac, for appellant. John C. Eyster, for appellee.

MCCLELLAN, J. The complaint in this cause claims damages for that the defendant, Kelly, removed or caused to be removed, and converted to his own use, certain five bales of cotton, on which plaintiff had a lien for rent and advances, by which said removal or conversion, it is averred, said lien was destroyed, and the remedy for its enforcement was lost; the defendant having, it is further alleged, notice or knowledge of said lien. It is not averred that the cotton was the property of plaintiff, or that the defendant converted any property of the plaintiff. It is therefore not conceivable that the complaint could be reasonably construed to be in trover. On the other hand, its averments present a case for damages consequent upon the wrongful deprivation of power to assert a right. The wrong done was in the removal of the cotton, but this did not, per se, inflict the injury. resulted mediately and consequentially from the further fact that plaintiff had a lien on the property. The appropriate action was case. The only action stated is case. If the statement is defective at all, the insufficiency lies in the manner of it, and not in the matter, -in the statement of the existence of a lien as a conclusion of law, instead of a statement of the facts upon which the lien arose and exists; and this infirmity, demurrer being pretermitted, was waived by the plea of not guilty. As the issue was made, the complaint, for all practical purposes, was a perfectly good one in case.

That

Under the general issue, upon which the case was tried, it was entirely competent for the plaintiff to prove the relation of landlord and tenant between himself and McVay, and knowledge or notice of that fact on the part of the defendant, as going to show that the latter knew of the existence of the plaintiff's lien on cotton raised by McVay on the rented land. The lease and McVay's note for the rental of 1890 were properly received to show the rela