mon parlance, as they must be held to have been used in this indictment, and as the former is employed in the statute they cannot be said to mean the same thing. The illustration employed in Allred's Case, supra, demonstrates this. Fermented or "hard" cider and "cane beer" are there referred to as being intoxicating beverages or drinks which yet contain no vinous, spirituous, or malt liquor. It is equally clear that neither of these beverages is "intoxicating bitters." This term, as it was manifestly employed in this statute, is defined as "a liquor (generally, a spirituous liquor) in which bitter herbs or roots are steeped." There is nothing of this sort about fermented cider or cane beer, and these intoxicating beverages are never spoken of as "bitters." As there may be many other intoxicating drinks or beverages which contain no spirituous, vinous, or malt liquors, so there may be many other such beverages which are not "bitters" in any sense of the term. The indictment therefore charges in the alternative an act-the sale, gift, or other disposition of intoxicating drinks-which is not necessarily, and which the court cannot affirmatively know to be, an offense against either the general laws of the state or the special law having operation in some parts of Shelby county. Again, the indictment, while the necessity to allege venue has been obviated by statute, must be taken to aver that the acts charged against the defendant were committed in Shelby county, without reference to the consideration whether they were committed in any one of the several prohibited districts within that county; and its averments would be established by proof that the defendant gave away or otherwise disposed of vinous, spirituous, or malt liquors, or that he sold, gave away, or otherwise disposed of intoxicating bitters in that part of the county which is not embraced in the special act. And, while such proof would support the indictment, it would not make out a case under the general law, because a sale, as contradistinguished from a gift or other mode of disposition, is the gist of the offense under that law; and it would not present a case of guilt under the local law, because the act proved was not committed in a locality to which that law ap plied. This demonstrates, to our minds, that the indictment is bad in this particular also. Every fact laid in some of its alternative averments may be admitted, and it would not follow that the defendant had violated any law, general or specified, of the state of Alabama. If it was intended to charge an offense against the general law, the averments of a gift or other disposition of spirituous, vinous, or malt liquors, and of the sale, gift, or other disposition of “intoxicating bitters or intoxicating drinks," should have been omitted. If it was intended to charge an offense under the local law, the averments of a sale, gift, or other disposition of "intoxicating drinks" should have been omitted, and there should have been a further aver ment to the effect that the act charged in the several disjunctive allegations was committed in a specified territory embraced in the prohibitory statute. The judgment of the court is reversed, and the cause remanded. LAWSON et al. v. STATE. (Supreme Court of Alabama. Feb. 8, 1894.) TRESPASS-CRIMINAL PROSECUTION-EVIDENCE. In a prosecution under Code, § 3874, making it unlawful to trespass on land of another after being warned not to do so, if complainant was in actual possession of the land trespassed on, it is no defense that defendant claimed a superior title thereto. Appeal from criminal court, Pike county; William H. Parks, Judge. James Lawson and others were convicted of trespassing on land of Dennis Ramsey after having been warned not to do so, and appeal. Affirmed. Issue having been joined on the plea of not guilty, the state introduced as a witness Dennis Ramsey, who testified that he took possession of the land in section 19, township 11, range 20, six years before the trial (October, 1893), and built houses and cleared and fenced a field containing about 25 acres; that in the month of February, 1893, while he was in possession of said field, he warned the de fendants not to enter thereon, but that thereafter, before the commencement of this prosecution, the defendants did trespass upon the said field. On cross-examination this wit ness testified that his house was on the N. E. 14 of said section 19, and the land upon which the defendant entered after warning was on the N. W. 4 of said section; that he had no title to the land in said N. W. 4 of said section, "more than that, he was in possession of the 15 acres in dispute." He further testified that both quarter sections were known as the Mobile & Girard Railroad lands, and that under an act of congress they were forfeited to the government, and that he was proceeding in the land department in Montgomery to homestead the N. E. 4 of said section; "that before said warning was given, and after the said 25-acre field was cleared, the county surveyor had run the line between the two said quarter sections, and cut off about 15 acres of said field, which placed it in the said N. W. 4." The defendants introduced as a witness one Linson Lawson, who testified that he was the father of the defendants, who were minors, and who were working under him at the time of the alleged trespass; that he was living on the N. W. 4 of section 19 at the time of the alleged trespass, took possession of the same four or five years previously, and was living there when said Ramsey fenced in the 25 acres; that the line between the two quarter sections was run by the county surveyor, at his instance, after notice to said Ramsey; that at the time of said survey, and before the warning, he had made application to homestead the said N. W. 4, as provided by an act of congress. He thereupon offered to introduce a certificate of a homestead entry, signed by the register in the land office at Montgomery, but on objection by the state the court refused to allow said certificate to be introduced in evidence, and the defendants duly excepted. On motion of the state, the court excluded all of the testimony of said Linson Lawson in reference to his claim to the 15 acres upon which the trespass is alleged to have been made, and to this ruling the defendants duly excepted. M. N. Carlisle, for appellants. Wm. L. Martin, Atty. Gen., for the State. MCCLELLAN, J. This is a prosecution for trespass after warning, under section 3874 of the Code.' The evidence is free from conflict to the effect that the prosecutor had actual possession of the land upon which the trespass is alleged to have been committed at the time of the warning to defendants, and from thence to, and at, the time when the defendants entered upon it; that he warned the defendants not to enter upon the land, and that within 6 months after said warning, and within 12 months before the commencement of the prosecution, and in Pike county, the defendants did enter upon said land. This evidence, none of which, as we have indicated, was at all controverted, fully and perfectly made out the case for the state. Bohannon v. State, 73 Ala. 47; Goldsmith v. State, 86 Ala. 57, 5 South. 480; 3 Brick. Dig. p. 251, § 1068. The defendants, not denying or controverting in any way the prosecutor's actual possession, were allowed to introduce evidence which tended to show that the prosecutor had at some past time admitted inferentially that the defendants had a superior claim to a certain quarter section adjoining that claimed by him, and that upon a survey the land entered upon was found to be in the quarter section claimed by the defendants. The prose cutor's actual possession, however, continued notwithstanding the survey, and he continued to claim and exercise the right to exclusive possession of the premises. This admission could not have justified defendants' entry upon prosecutor's actual adverse possession against the warning subsequently given them by the prosecutor, and the defendants certain. ly got all they were entitled to because of it when the court confined its influence in the case to the mitigation of punishment. A per The section provides: "Any person, who, without legal cause or good excuse, enters into the dwelling-house, or onto the premises of another, after having been warned, within six months preceding, not to do so, must, on conviction, be fined not more than one hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than three months; and the fine goes to the party injured." fect legal title in the defendants would not have justified their entry upon the land after warning, under the facts of this case. The court did not err, therefore, in excluding the certificate of homestead entry offered by the defendants. Nor could the defendants have been prejudiced in respect of the punishment imposed by the jury by the exclusion of this evidence, since the lowest possible fine one cent-was assessed against them. We find no error in the record, and the judgment of the criminal court is affirmed. ANDERSON et al. v. JONES. (Supreme Court of Alabama. Feb. 13, 1894.) ORDER FOR MONEY-NEED OF ACCEPTANCE. An order for a definite sum, not drawn on any particular fund, is not an assignment, but is a "bill of exchange," within Code, 1766, providing that no person must be charged as the acceptor of a bill of exchange unless his acceptance is in writing, signed by himself or agent. Appeal from city court of Montgomery; T. M. Arrington, Judge. Action by S. J. Anderson & Co. against James Otey and C. F. Harmon, garnishee. F. M. Jones appeared, and claimed the funds in the garnishee's hands. From a judgment denying plaintiff's motion for judgment, plaintiff appeals. Reversed. E. P. Morrisett, for appellant. Arrington & Graham, for appellees. COLEMAN, J. Anderson & Co. having sued James Otey, upon a demand for $186, garnished C. F. Harmon. The garnishee answered indebtedness to Otey in the sum of $72, but, by his answer, gave notice that F. M. Jones claimed to be the owner of the debt or demand. Notice issued to Jones to appear and contest with plaintiff the right to the debt or demand, as provided in the statute. Code, 2984. In accordance with the notice, Jones appeared, and propounded his claim in writing, under section 2985 of the Code. The plaintiff demurred to the claim as propounded by Jones, which demurrer was overruled by the court, and, the plaintiff declining to take issue, judgment was ren dered, discharging the garnishee. The appeal is prosecuted from the judgment of the court. The only question for review is as to the sufficiency of the claim propounded by Jones, the claimant. It is as follows: "That the said Otey, previous to the commencement of the garnishment proceedings herein, and previous to the service of the writ of garnishment, gave him [claimant] a written order on the garnishee for two hundred dollars, which said order was presented to garnishee, and which was left with him for payment, and which he agreed to pay after he had paid out other orders which had been given to other persons in advance of that given to him, but his said agreement to pay was not in writing," etc. This order, as here described, was not upon any special fund, but was for the payment of $200 generally. It is not distinguishable from any other written order given by one person upon another for the payment generally of a definite amount of money. Section 1766 of the Code is as follows: "No person within this state must be charged as the acceptor of a bill of exchange, unless his acceptance is in writing, signed by himself or agent." It is contended by appellees that the order for the payment of the money shows that it was not a "bill of exchange," within the meaning of the statute. Neither the authorities cited nor the argument made sustains the contention. The order is in writing. It was drawn by one person upon another, payable in money to a designated payee, not out of any special fund, but generally, for a specific amount, and, in law, was payable on demand. It has every characteristic of a bill of exchange, and, we think, comes within the provision of the statute. This was the view taken of a similar order in the case of Harris v. Russell, 93 Ala. 59, 65, 9 South. 541. See, also, 1 Rand. Com. Paper, § 3; 1 Am. & Eng. Enc. Law, 836, 837; Teague v. Le Grand, 85 Ala. 493, 5 South. 287; Sands v. Matthews, 27 Ala. 399; Whilden v. Bank, 64 Ala. 1; Bank v. Miller, 77 Ala. 168; Auerbach v. Pritchett, 58 Ala. 451, 457; Palmateer v. Gatewood, 4 J. J. Marsh. 504. An order to be paid out of a special fund, or from a special source, or for the delivery of goods or chattels, would not be a bill of exchange. Such was not the character of the order under consideration, as disclosed in the answer of the garnishee. The demurrer was well taken, and should have been sustained. Reversed and remanded. YOUNG v. STATE. the right to such use and occupancy, are sufficient to justify the laying of the ownership in the husband. Though the legal title is in the wife, it is also his dwelling house. State v. Trapp, 17 S. C. 467. The ownership might have been laid in the wife also. The case is different when a party is charged with larceny. The possession of personal property belonging to the wife is referable to the ownership or legal title, and is distinct and entire, independent of the husband. Rollins v. State (Ala.) 13 South. 280; Johnson v. State, Id. 377. Affirmed. NORTON V. ALABAMA NAT. BANK. (Supreme Court of Alabama. Feb. 13, 1894.) ASSIGNMENT FOR BENEFIT OF CREDITORS-POWER OF PRESIDENT OF CORPORATION-RATIFICATION. 1. The president of a corporation, without authority from the board of directors, cannot convey the corporate property for the benefit of creditors. 2. Where the president of a corporation makes an unauthorized assignment of the cor porate property for the benefit of creditors, the subsequent ratification thereof by the board of directors is insufficient as against creditors levying an attachment in the mean time. Appeal from city court of Birmingham; H. A. Sharpe, Judge. Action by the Alabama National Bank against the Lee Jordan Grocery Company. F. F. Norton interposed a claim to property attached. From a judgment for plaintiff, claimant appeals. Affirmed. J. W. Bush and Chas. G. Brown, for appellant. Mountjoy & Tomlinson, for appellee. COLEMAN, J. The National Bank sued out an attachment against the Lee Jordan Grocery Company, a corporation, which was levied upon a stock of groceries and merchandise. F. F. Norton, assignee of the corporation, interposed a claim to the property, and the present action was to try their re (Supreme Court of Alabama. Feb. 13, 1894.) spective rights. The case was tried by the court, without a jury, which found the issue for the plaintiff in attachment. The claimant, Norton, appealed, and assigns as error the judgment of the court. The only ques tion is whether the evidence justified the conclusion of the trial court. The evidence shows that on the 5th day of December, 1892, about 12 o'clock, the deed of assignment for the benefit of all its creditors was signed and delivered to the assignee, Norton, who accepted the trust. It is signed: "Lee Jordan Grocery Company, by L. B. Jordan." It is not signed officially by L. B. Jordan, as the president of the corporation, although the proof shows he was the president. It purports to convey all the property of the corporation, "the same being contained in the storehouse now occupied by the party of the first part [the grantor], located on the north side of First avenue, * and more fully and particularly described in a schedule, to Gibson v. Goldthwaithe, 7 Ala. 281; Code 1886, § 1664. The case of Simon v. Asso ciation (Ark.) 14 S. W. 1101, in many respects was similar to the case at bar, in which it was held that a subsequent ratification, if lawful, was inoperative against an intervening creditor. In the case of Wood v. McCain, 7 Ala. 800, the general rule is recognized that a ratification refers back to the inception of the transaction, but it is said that an exception to the general rule prevails where third parties acquire rights after the act is done, and before its ratification by the principal. The exception was applied in favor of a garnishing creditor. The case is not distinguishable in principle. Godwin v. McGehee, 19 Ala. 468; 1 Am. & Eng. Enc. Law, p. 436, note. Read Pollock v. Cohen, 32 Ohio St. 514. The authorities seem conclusive on this point, and render it unnecessary to consider any other questions. The Affirmed. be hereto annexed, and marked 'Exhibit A.'" In the afternoon of the same day, the attachment was levied, while Jordan and Norton were taking an inventory of the property in the storehouse, and before schedule A was completed and annexed to the assignment. We think the evidence satisfactorily shows that, in making the assignment, L. B. Jordan acted upon his own judgment and individual responsibility, without being lawfully authorized to execute the deed of assignment. It is undisputed that L. B. Jordan was president and a director; that A. Jordan, his wife, was secretary and a director, and L. C. Jordan, a brother of the president, was a director; and that these three persons were the sole corporators and stockholders. The corporation had no by-laws. The minutes of the meetings of the board of directors were introduced in evidence, and these showed that the last meeting of the directors was held in April preceding, at which meeting | judgment of the city court must be affirmed. the officers were elected, and showed nothing more. It is not pretended that the assignment was authorized at any meeting of directors held before it was made. L. B. Jordan testifies that on the morning of the 5th of December, before leaving home, he told his wife (A. Jordan, who was secretary and a director) that, unless he could borrow money that day, he would be compelled to make a sale or assignment, and that she replied, "Do the best you can." The other director, L. C. Jordan, was absent from the city, and it appears knew nothing of the matter of the assignment. The claimant contends that the execution of the assignment was subsequently ratified by the directors. On this point L. B. Jordan testified that on the 12th of December, seven days after the execution of the assignment and the levy of the attachment, his brother returned, and a verbal reso lution was adopted by the three directors ratifying the assignment made by him. The resolution was never reduced to writing or any minute entry made of it. It is a generally recognized principle of law that the president of a corporation, or its general manager, without authority of its board of directors, cannot make a valid conveyance or assignment of the property of the corporation. In the case of Goodyear Rubber Co. v. George D. Scott Co., 11 South. 370, 96 Ala. 440, in which it appeared that Scott was the general manager, this court used the following language: "The amended bill, as we have seen, charges that Scott alone conveyed to the bank, without the authority or sanction of the board of directors. If this be so, the sale did not vest a good title in the bank. Sales of that kind could be made only by the board of directors, and not every sale by them would be valid," -citing Cook, Stock, Stockh. & Corp. Law, § 712; 1 Mor. Priv. Corp. §§ 511-513. porting the same conclusion, see Tennessee & C. R. Co. v. East Alabama Ry. Co., 73 Ala. 445; Standifer v. Swann, 78 Ala. 88; As sup LOUISVILLE & N. R. CO. v. GERSON et al. (Supreme Court of Alabama. Feb. 13, 1894.) ACTION AGAINST CARRIER-PLEADING-GROSS NEG LIGENCE. 1. In order to recover against a common carrier, as such, for failure to deliver in safety property transported under a contract, express or implied, the complaint must aver that defendant is a common carrier. 2. The delivery of freight to a carrier, and its acceptance, and transportation thereof according to directions, without payment or promise of reward, make the carrier liable only for damage caused by its gross negligence. Appeal from circuit court, Montgomery county; John R. Tyson, Judge. Action by A. Gerson & Sons against the Louisville & Nashville Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed. Following is the complaint in full: "A. Gerson, Samuel Gerson, and Nathan Gerson, partners under the firm name of A. Gerson & Sons, claim of the L. & N. R. R. Co., a corporation, fifty dollars damages, for the negligent injury by the defendant of an iron-gray mare, on or about the last of October, 1890, the property of plaintiffs, which the defendant refuses on demand to pay." Chas. P. Jones and J. B. Jones, for appellant. Lomax & Ligon, for appellee. HARALSON, J. This is not an action against the defendant corporation as a common carrier, for a failure to deliver the animal to the consignee, in safety, free from injury to it, in its transportation. The defendant is not referred to at all, in the complaint as a carrier, common or private. All carriers without hire may be said to be private carriers. Compensation in some form, either by the payment of its price, or a promise express or implied to pay it, is essential to constitute a common carrier. If one un dertakes to carry goods for another gratuitously, he is a mere mandatory, and liable only, for gross negligence. It is not necessary, however, that there should be an express contract with a railroad company or any other common carrier, for the transportation of freight, to render it liable for failure to deliver in safety. Proof of delivery of goods, with directions as to their carriage, and of the acceptance of them by the carrier, would give rise to an undertaking on its part, to carry them according to directions. No such implication will be indulged to fix a liability on a private person. Hence, when a common carrier is proceeded against at law, on a contract express or implied, and especially, if implied, for a failure to deliver in safety, it should be averred in the complaint, that the carrier is a common carrier. Hutch. Carr. §§ 16, 17, 19, 35, 763; Ang. Carr. 17-41; Story, Bailm. § 174; Knox v. Rives, 14 Ala. 257; Haynie v. Waring, 29 Ala. 265; Railroad Co. v. Lampley, 76 Ala. 364; Railway Co. v. Kolb, 73 Ala. 396; Melbourne v. Railroad Co., 88 Ala. 449, 6 South. 762; 19 Am. & Eng. Enc. Law, 903. In this case, the action is not on a contract, express or implied. It is not averred, even, in the complaint, that the defendant is a common carrier, nor is any fact averred from which it can be implied, that the mare was delivered to defendant to be transported, or that there was a relation of bailment of any kind between the plaintiffs and defendant in respect to the animal. The action is one in case on the naked averment, without stating any of the facts, that the mare was "negligently injured" by defendant. There was no objection, in any form, made to the complaint. The case was tried, as would appear from the evidence introduced on both sides, as though the mare had been transported by defendant as a common carrier, but there was no proof of any contract of affreightment, express or implied, further than that the defendant transported the animal from St. Louis to Montgomery, nor was it shown that any thing was paid or promised to be paid for such a service. If the suit were against the defendant as a common carrier, on an implied contract, the bare fact of the delivery of the freight to the defendant, its acceptance and transportation according to directions, without proof of any reward paid or promised, or which could be inferred to be promised, would have made it liable for damage to the mare occasioned by its gross negligence. If treated in this light, as the course the trial took indicated the parties were disposed to treat and try it, and as is most favorable to plaintiffs, the evidence, without conflict, is wanting to show any such negligence on the defendant. The plaintiffs failed to establish their case. Railroad Co. v. Grant (Ala.) 13 South. 602; Railway Co. v. Harwell (Ala.) 11 South. 781. But, if tried on the complaint made, the plaintiffs have no standing under the evi Defendant, in a suit to enforce a vendor's lien on land, is not entitled to an abatement of the price as to a part thereof which is merely described as a "portion" of a stated quarter section, though in his answer he attempts to identify such "portion" intended to be conveyed, there being no attempt on his part to cancel the deed and secure a return of the purchase price, or to procure a reformation of the deed. Appeal from chancery court, Dale county; Jere N. Williams, Chancellor. Action by James Bottoms against James E. Dykes. From the judgment partially in favor of defendant, plaintiff appeals. Reversed. Borders & Carmichael, for appellant. H. H. Blackman, for appellee. HARALSON, J. This case was here on a former appeal. 13 South. 582. The bill was filed to have a vendor's lien on land declared and enforced. The entire defense was to have an abatement of the purchase money, to the extent of the value of 11 acres of the land sold, 5 acres in one section, 29, and 6 acres in another,-section 28. The facts on this appeal are not materially different from those presented on the former, and on which, this court decided all that is now, on the present record, presented for review. We then held, that as for the five acres in section 29, the respondent was entitled to an abatement of the purchase money, to the extent of its value; and, that as to the six acres in section 28, the deed of the complainant to the respondent was void for uncertainty of description; that it simply described it as "a portion of the N. W. 4 of N. W. 4. and a part of S. W. 4 of N. W. 1⁄4 of Sec. 28" in township 17, range 25, without specifying any number of acres; that the particular parts of said section 28 intended to be sold could not be ascertained; that they had no landmarks, which would enable a surveyor to find the land; and that it did not come within the maxim, "Id certum est, quod certum reddi." Dykes v. Bottoms (Ala.) 13 South. 582; Black v. Railroad Co., 93 Ala. 109, 9 South. 537; Railroad Co. v. Boykin, 76 Ala. 560; Wilkinson v. Roper, 74 Ala. 141. When the cause, on reversal, returned to the chancery court, the court allowed the re spondent to file an amended answer in the nature of a cross bill, in which he undertook to identify the particular six acres of land |