in said section 28, which he understood to be conveyed to him by said deed, and thereby to make an attempt to make that certain, which we held could not be done. The learned chancellor evidently overlooked, for the time, the fact, that the respondent did not seek a cancellation of the deed and a return of the purchase money, or a reformation of the deed, but that his purpose was, to hold the land under a deed recognized by him to be valid, and claim simply an abatement of the purchase money, and that, under a clause of the deed declared by this court to be void. It is unnecessary to repeat here, what we said on this question in our former opinion. No amount of averment and proof could make said deed certain to that six acres, and the effort to do so, should have fallen on the objections interposed by the complainant. The decree of the court below would have been correct, if no mistake was made in the calculations, except for the abatement of $200, the ascertained value of the six acres of land which was improperly allowed. In the record before us, it is stated that there are 160 acres of land, whereas, the land numbers given show only 120. The answer admits 160 acres. Lest some injustice may be done by rendering a decree here, we will reverse and remand the cause. Reversed and remanded.

RICHMOND & D. R. CO. v. HUTTO. (Supreme Court of Alabama. Feb. 13, 1894.) APPEAL-FROM JUSTICE AMOUNT OF JUDGMENT.

When, after judgment in a justice's court, the cause is taken to the circuit court on certiorari, it is proper, on entering judgment for the same party in the latter court, to add interest on the justice's judgment, though the sum exceed the jurisdiction of a justice of the peace.

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by John Hutto against the Richmond & Danville Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The action was originally commenced before a justice of the peace, and sought to recover $100 on an account for cross-ties. There was a judgment for $100 and costs against the defendant in the justice's court, and afterwards, the cause was taken by writ of certiorari to the circuit court. Subse quently, a judgment nil dicit was rendered against the defendant and the surety on the appeal and supersedeas bond, for $114.66, a writ of inquiry having been duly executed. The appellant assigns as error, the rendition of the judgment nil dicit against defendant in the circuit court, and the rendition of judgment for an amount in excess of the amount claimed by the complaint-$100and of the amount over which the justice of the peace had jurisdiction.

James Weatherly, for appellant. Dan'l A. Greene, for appellee.

HARALSON, J. The only error insisted on is, that "the judgment rendered in this case is void on its face, being in excess of the jurisdiction of a justice of the peace in this state." In Pruitt v. Stuart, 5 Ala. 112, this court held, that where a suit seeking the recovery of money, originates in a justice's court, and is removed by appeal or certiorari into the circuit court, the judg ment there rendered should not exceed the amount for which the justice of the peace had jurisdiction to render a judgment, unless it be increased by the addition of interest, accruing since the rendition of the judgment appealed from. This judgment was rendered in the justice's court, on the 16th of June, 1891, for $100 and costs, and in the circuit court on 2d May, loss, for $114.96, the amount of the original judgment and interest thereon up to the date of the rendition of the judgment in the circuit court,which was the correct amount for which judgment should have been rendered. But, if it had been for a greater amount, if no objection had been raised thereto in the court below, its correctness could not be inquired into in this court. Pruitt v. Stuart, supra; Vaughan v. Robinson, 20 Ala. 229; Hays v. Myrick, 47 Ala. 335, 345; Drake v. Johnson, 50 Ala. 3; Railroad Co. v. Jones (Ala.) 14 South. 786. Affirmed.

TAYLOR v. STATE.

(Supreme Court of Alabama. Feb. 13, 1894.) INDICTMENT-SUFFICIENCY-ELECTION.

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1. An indictment charging an offense against Matt Taylor, "whose Christian name is otherwise unknown," is not bad for repugnance, since the statement that such other name is unknown is unnecessary.

2. A conviction under an indictment good under either of two statutes, one of which is repealed by the other, will be referred to the latter statute.

3. An indictment in two counts, the first of which charges that defendant sold intoxicants without license, and the second that "at another time" he sold intoxicants without a license, presents no case for election on which count to prosecute.

Appeal from circuit court, Sumter county; S. H. Sprott, Judge.

Matt Taylor was indicted, tried, and convicted under the following indictment: "The grand jury of said county charges that, before the finding of this indictment Matt Taylor, whose Christian name is to the grand jury otherwise unknown, sold vinous or spirituous or malt liquors without a license and contrary to law. The grand jury of said county further charges that, before the finding of this indictment, Matt Taylor, whose Christian name is to the grand jury otherwise unknown, at another time sold vinous

or spirituous liquor without a license and contrary to law, against the peace and dignity of the state of Alabama." Affirmed.

On the trial of the case the defendant moved to quash the indictment on the following grounds: "That this defendant is indicted under the general revenue laws of the state for a violation of the revenue law thereof, and that said general law does not apply to nor obtain in Sumter county; that the last prohibition law passed for Sumter county (found in Acts 1890-91, p. 312) repealed all laws and parts of laws in conflict therewith, thereby repealing the general revenue law, so far as the same applies to Sumter county; that the special prohibition law of said county left the grand jury no discretion in finding true bills for violations of said law, and especially set out the fact that the grand jury shall find indictments in all prima facie cases of violations of said special law, and the only law under which this defendant can be indicted for the offense with which he stands charged would be under the provisions of the special prohibition law of said county; wherefore he moves the honorable court to quash the said indictment." This motion to quash was overruled, and the defendant excepted. Thereupon the defendant demurred to the indictment on the following grounds: "(1) That the indictment alleges that the Christian name of the defendant is Matt Taylor, and at the same time alleges that his Christian name is to the grand jury otherwise unknown, thereby creating a variance. (2) That the allegations of the indictment as to the defendant's name are repugnant. (3) That the second count of the indictment is defective in that it is not definite, and does not allege at what specified time said act was committed, but simply says 'at another time.' (4) That the defendant is indicted under the general revenue law of the state, which law does not apply to the said county." Each ground of this demurrer being overruled, the defendant duly excepted, and then filed his plea in abatement, alleging a variance and irregularity in reference to the name of the defendant, as set out in the first two grounds of the demurrer. The state demurred to this plea in abatement, and, the court having sustained the demurrer, the defendant duly excepted. Issue having been joined on the plea of not guilty, the state introduced a witness whose evidence tended to show that the ⚫defendant had, within 12 months before the finding of this indictment, sold said witness a pint of whisky in said county, for which he paid defendant 50 cents. This being all the evidence, the defendant moved the court to require the solicitor to elect upon which count of the indictment he would ask for a conviction, which motion the court overruled, and the defendant duly excepted.

Smith, Van De Graaff & Travis, for appellant. Wm. L. Martin, Atty. Gen., for the State.

HEAD, J. The law recognizes but one Christian name of a person. It was sufficient to indict the defendant by the name of Matt Taylor, without reference to any other name. It was wholly immaterial whether the grand jury knew his other Christian name or not, if he had any, and the statement in the indictment that such other name was to that body unknown was unnecessary, and will be rejected as surplusage. It is not a case of an immaterial averment, descriptive of the defendant, which it is necessary to prove because alleged. The rulings of the circuit court on this subject were free from error.

There is no merit in the objection to the indictment which supposes it was presented under section 4036 of the Code, and that that section was repealed by the prohibition act for Sumter county. Acts 1890-91, p. 312. The form of indictment pursued in this case is good, either under section 4036, supra, or the prohibition act. See Code, § 4037. If there was anything in the point that the latter repealed the former, the conviction would be referred to the latter.

There was no case presented for an election by the solicitor of which count of the indictment he would ask for a conviction under. We find no error in the record, and the judgment is affirmed. Affirmed.

WALLER v. JANNEY et al. (Supreme Court of Alabama. Feb. 13, 1894.) VENDOR'S LIEN-ASSUMPTION OF CHARGE ON LAND BOUGHT.

Where, as a part of the price of certain property, the grantees agreed to satisfy a charge upon the property due plaintiff's intestate, and failed to do so, equity will enforce a vendor's lien for that amount in favor of such intestate.

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

Suit by William W. Waller, administrator de bonis non of Julia B. Micou, deceased, against Janney & Cheney, to have an indebtedness due her declared a lien on certain property. From a decree refusing to grant the relief prayed, complainant appeals. Re versed.

H. C. Semple held the legal title to certain property. He had no personal interest in it whatever beyond his charges as trustee, all of which was known to Moses Bros. The sum of $4,250 was charged on this property in favor of Lucy B. Micou. Moses Bros., proposing to buy a portion of this property, and knowing of the charge in favor of Lucy B. Micou, offered Semple $10,000 for certain lots, and agreed to satisfy the purchase money as follows: By accounting with him (Semple) for the sum of $6,050, and by accounting with Lucy B. Micou, for Semple, for the sum of $3,950. These terms were accepted by Semple, and Moses Bros. paid him, or accounted to him for, the $6,050, and brought to him, from Lucy B. Micou, a re

Appeal from circuit court, Pike county; John R. Tyson, Judge.

question the defendant objected. It was a proper question. It did not call for an independent fact, but for what the witness had heard, having a direct bearing on the value of the testimony of the witness touching rep

The state introduced evidence tending to connect the defendant with the crime for which he was indicted, while the defendant's evidence was in conflict with this testimony for the state. After proving by one Starke, that he was a justice of the peace in 1887, and entered the judgment entry in his docket, which showed that Ran Hartsfield and Amos Thompson were convicted of petit larceny in 1887, the state offered to introduce the said docket. The defendant objected, and the state tried to identify the defendant by said Starke, as the person named in the judgment entry, but failed to do so. The solicitor then called the defendant as a witness, against his objection, and asked him if he was the person named in the judgment entry. To which he answered that he did not know. He was then asked by the solicitor "if he was not tried with Ran Hartsfield in Judge Starke's court for stealing meat?" To which he answered, "that he remembered having been arrested and brought before Judge Starke once, and he thought Ran Hartsfield was tried for something at the same time, or on the same day, but that his recollection was that he, the defendant, was not convicted; and that he was never tried by Judge Starke but once in his life." The defendant objected to each of the above questions separately when asked-First, because the state had no authority to call the defendant as a witness, to testify against his objection, after he had been cross-examined, and had retired from the witness stand; second, because it was requiring the defendant to furnish evidence against himself; third, because the evidence sought was illegal.

R. L. Harmon, for appellant. Wm. L. Martin, Atty. Gen., for the State.

HARALSON, J. 1. It is well settled, that character, whether good or bad, can only be proved by general reputation, and evidence of particular acts or conduct is inadmissible, both on the direct and cross-examination, though in the latter, a greater latitude is allowed than in the former, and a witness may sometimes be asked irrelevant questions to test his accuracy, veracity or credibility. Moulton v. State, 88 Ala. 116, 6 South. 758; Morgan v. State, 88 Ala. 223, 6 South. 761; Moore v. State, 68 Ala. 360.

2. Nall, a witness for the defendant, testified as to the general character of defendant, -that he knew it, and it was mixed; that some people said it was good, and some that it was bad. On cross-examination by the solicitor, the witness was asked if he had ever heard of the defendant stealing meat

v. State, 67 Ala. 67; Baker v. Trotter, 73 Ala. 281; Jackson v. State, 78 Ala. 471; Lowery v. State (Ala.) 13 South. 498.

3. On the cross-examination of the defendant as a witness, the solicitor was allowed to ask him, if he had not been convicted of petit larceny by a justice of the peace, in the fall of 1887. If the defendant had been convicted, as was proposed to be proved by him,-under section 2766 of the Code, that fact was competent to be shown as affecting his credibility. Pryor v. State (Ala.) 13 South. 681. But, if convicted the record of the court where convicted, was the best evidence, and it was not competent to show it by oral testimony. Baker v. Trotter, 73 Ala. 281; Burns v. Campbell, 71 Ala. 275; 1 Greenl. Ev. §§ 372, 375. The question, however, was answered in the negative, and the ruling of the court need not be considered, as it affirmatively appears that the defendant was not injured. Perry v. State, 91 Ala. 83, 9 South. 279, and authorities cited.

4. There was no error in allowing the docket of the justice of the peace to be introduced tending to show that defendant had been convicted of petit larceny in the fall of 1887. That was a fact which the statute authorized to be proved as affecting defendant's credibility as a witness. Code, § 2766. Nor was there error, as preliminary to the introduction of this docket, to allow the state to recall the defendant who had already been examined as a witness in his own behalf, and examine him touching his identity with the person who had been convicted before the justice of the peace. This was merely recalling him for the purpose of further cross-examination, a matter always within the discretion of the court. Williams v. State (Ala.) 13 South. 333; Thomas v. State (Ala.) 14 South. 621. The judgment and sentence of the court below are affirmed.

1. In an action on a note, a plea that since the execution and delivery thereof to plaintiff she has, without the knowledge and consent of the defendant, an indorser, erased and changed the same, for the purpose of releasing another indorser, whereby he was released, is demurrable, as being too general and indefinite.

2. In an action against an indorser, a plea setting up the release of another indorser, which does not aver a consideration for the release, is demurrable.

3. Under Code, §§ 2341, 2348, a married woman, without the intervention of an active