any appropriate relief that can be carved out of the land thus conveyed. The land being acquired on the faith of such promise, equity will charge it with a trust in the nature of unpaid purchase money, for the indemnification of the vendor, to the extent he has suffered from her breach of promise. Marks v. Cowles, 53 Ala. 499; Moore v. Worthy, 56 Ala. 163; Sterrett v. Coleman, 57 Ala. 172; Norman v. Harrington, 62 Ala. 107; Carver v. Eads, 65 Ala. 190. The promise of Mrs. Manning being only to make a will, she had her life-time to do it in, and there was no actionable breach until she died without having complied with her promise. It follows that the statute of limitations did not begin to run until her death. It opposes no bar in this case if the complainant is otherwise entitled to relief. Bolman v. Lohman, 80 Ala. 451, 2 South Rep. 624. If the agreement was such as is set out in the bill, then the conveyance of land made by complainant to his wife was a valuable consideration, which would uphold and bind her promise to make the alleged will; and her promise was a valuable consideration, and the consideration on which his deed to her was executed. This, if true, takes the transaction without the category of a voluntary conveyance or gift by the husband to his wife, and constitutes it a deed of bargain and sale on valuable consideration. The consideration of the deed being on its face valuable, that clause was open to parol proof of any other valuable consideration, because such proof would not change the legal effect of the conveyance as a muniment of title. The promise of the wife, if made, was a valuable consideration, and there is no incompatibility between it and any other valuable consideration which the deed may recite. McGehee v. Rump, 37 Ala. 651; Railway Co. v. Wilkinson, 72 Ala. 286; Stringfellow v. Ivie, 73 Ala. 209. The court of chancery being without power to compel the execution of a will, specific execution of the agreement could at no time have been enforced. But the complainant is not without remedy. True, if Mrs. Manning had property other than the land, her promise, she being a married woman, could not bind it unless it was an equitable estate. Having acquired the land, however, on the faith and consideration of the promise she made, chancery will seize upon it, fasten a trust upon it as for unpaid purchase money, and, as far as its value will extend, will secure to the complainant what he lost by his wife's failure to keep her promise. The third of the land can be secured to him in kind. If at her death she possessed other property, or property interests, which would have inured to him under the will, if made as per alleged agreement, then, as far as the residue of the land will furnish the means, this should be made good to him. In what we have said above we have treated this case as if Mrs. Manning's agreement to make a will in the terms alleged was in writing, and signed by her. Presented as the question is, we are bound to so treat it. The demurrer, alike to the original and amended bill, ought to have been overruled. It is possible, if not probable, that Mrs. Manning's promise to make a will was oral, and, if so, when the case returns to the chancery court, it will be necessary to consider it in the light of the statute of frauds. To prevent its returning upon us in that aspect, we will declare rules for the guidance of the chancellor. The bill and its amendment present the question we are approaching in two phases: First, as a mere promise, in consideration of the deed, to make the alleged will, and a breach of that promise. The second phase, shown in the amendment, charges that when Mrs. Manning made and utilized her promise to make a will as an inducement to the execution of the deed, of which it thereby became the alleged consideration, she did it with the fraudulent intent not to comply with her promise, and that she carried that intent into execution by persistently refusing to comply, until her death rendered a compliance impossible. These phases of the question depend on different principles. If we treat the alleged promise of Mrs. Manning as simply a contract to receive and hold the land, in express trust to compensate the grantor by making the averred compensatory will, then such promise would be inopera tive under the statute of frauds. Patton v. Beecher, 62 Ala. 579; White v. Farley, 81 Ala. 563. The amended bill presents a different question. If there was a fraudulent intent in obtaining the deed without intention to make the will, and pursuant to it the will was not made, then the question of the statute of frauds becomes immaterial. The fraud will vitiate the transaction, and remit the complainant to the rights he had before the execution of the deed, and the conduct of the wife after the execution of the deed may be looked to as aids in determining what her intention was when she obtained the deed. Equity, in such case, and to accomplish its ends, declares the grantee to be a trustee ex maleficio, and divests the title for the fraud in acquiring it. White v. Farley, supra; 1 Pom. Eq. Jur. § 430; 2 Pom. Eq. Jur. §§ 807, 1053, et seq. Another question may arise in the further progress of this case, but it is surrounded with difficulties. We will not consider it unless it becomes necessary. Rake v. Pope, 7 Ala. 161; Browne, St. Frauds, § 117 and notes; Shindler v. Houston, 49 Amer. Dec., note, 326, 327; Christy v. Barnhart, 53 Amer. Dec. note, 540, 541; Coyle v. Davis, 20 Wis. 564; McClellan v. Sanford, 26 Wis. 595. Reversed and remanded. TATE v. STATE. (Supreme Court of Alabama. March 1, 1889.) PERJURY-WITNESS-CROSS-EXAMINATION. On a trial for perjury, alleged to have been committed on a trial for larceny, a witness having stated on re-examination that a hog killed and cleaned at the house of the alleged thief was the stolen hog, was properly asked on cross-examination, as to how he knew it was the stolen hog. Appeal from circuit court, Marengo county; W. E. CLARK, Judge. Sallie Tate was indicted for perjury, alleged to have been committed on the trial of one Josh Cade, under an indictment for the larceny of a hog, the property of Stephen Boggus. On the trial the prosecution adduced evidence showing the testimony given by the defendant, and evidence showing that her testimony was false, Stephen Boggus, a witness for the state, testified that, on the night his hog was stolen, he saw Josh Cade and Billy Turner cleaning a hog at defendant's house, which hog was his. After the argument to the jury had commenced, the defendant's counsel called the attention of the court to the fact that the prosecution had not proved that the hog cleaned at the defendant's house was the hog alleged to have been stolen by Josh Cade. Stephen Boggus was thereupon again put on the stand, against the objection of the defendant, and said that the hog killed and cleaned at defendant's house was his hog, and the hog alleged to have been stolen by Josh Cade. The defendant's counsel then asked the witness, "How he knew that it was the hog?" The state objected to this question on the ground that it was irrelevant. The court sustained the objection, and the defendant excepted. John C. Anderson, for appellant. T. N. McClellan, Atty. Gen., for the State. STONE, C. J. The constitution (article 1, § 7) secures to every one, on trial for a public offense, the right "to be confronted by the witnesses against him." This constitutional right would lose half its value if the kindred right of cross-examination were denied. That right is probably and generally the most effective instrumentality for eliciting the witness' "means of obtaining correct and certain knowledge of the facts to which he bears testimony." 1 Greenl. Ev. § 446. It is only by virtue of it, and of its presumed exercise, that testimony once given may be proved after the death of the witness, in a subsequent trial between the same parties, concerning the same subject-mat ter. Marler v. State, 67 Ala. 55; 3 Brick. Dig. p. 441, § 523 et seq. The circuit court erred in denying to the accused the right to cross-examine the witness Boggus on his re-examination. It was clearly permissible to ascertain the grounds or sources of his knowledge of that which he had testified to as a fact. There is nothing in the other objections urged. Reversed and remanded. DIFFEY . State. (Supreme Court of Alabama. March 1, 1889.) CARRYING WEAPONS-EVIDENCE-SUFFICIENCY. Evidence that defendant carried a pistol concealed in a hand-basket, which he carried in his hand, or on his arm, from his residence to a street-railway station, a distance of three or four hundred yards, and that when he entered the car he put the basket on the seat beside him, is sufficient to convict of carrying a weapon "concealed about his person." Appeal from criminal court, Jefferson county; SAMUEL E. GREENE, Judge. Oliver Diffey appeals from a conviction for carrying a concealed weapon. T. N. McClellan, Atty. Gen., for the State. CLOPTON, J. The evidence on which the defendant was convicted of carrying a concealed weapon was that he had a pistol concealed in a hand-basket, which he carried in his hand, or on his arm, from his residence to a station on the street railway, a distance of three or four hundred yards, and when he entered the car he put the basket on the seat beside him. The language of the statute is, "carries concealed about his person." In Cunningham v. State, 76 Ala. 88, where it was held that a person did not commit the offense who had a pistol in his saddle-bags, while riding on horseback along the public road, about the person, was defined to mean "that it is so connected with the person as that the locomotion of the accused will carry the deadly weapon with him." The purpose of the statute is to interdict carrying a weapon in a manner so connected with the person that it may be easily and promptly used, and yet others not discover its presence. About the person does not mean necessarily on the person. All the essential elements of the offense exist, if an interdicted weapon is carried near the person, and so connected therewith that the locomotion of the body necessarily carries the weapon, and so that it may be promptly used when desired; as in the pocket of an overcoat carried on the arm, or in a hand-basket, or other receptacle held by the hand. Such carrying one of the forbidden weapons concealed comes within the letter and purview of the statute, and constitutes the offense denounced. State v. McManus, 89 N. C. 555. Affirmed. TARTT v. STATE. (Supreme Court of Alabama. March 2, 1889.) MASTER AND SERVANT-INDICTMENT FOR ENTICING SERVANT TO LEAVE HIS EMPLOYER. Code Ala. §§ 3757, 3758, provide that where a laborer has entered into a written contract of service for a period not exceeding one year it shall be a criminal offense to knowingly induce such laborer to leave his employer before the expiration of his time of service, without the consent of the employer; and that the fact that such laborer, having so contracted, is afterwards found in the service of another before the termination of the contract shall be prima facie evidence of such offense. Held, that it was a defense to a prosecution under such statute that the defendant had, prior to the written contract entered into between the prosecuting witness and the laborer, verbally employed the latter for a period which had not expired, although the contract with the defendant was voidable under the statute of frauds, the parties to it electing to treat it as valid. Appeal from county court, Sumter county; W. R. DELOACH, Judge. CLOPTON, J. The defendant was indicted and convicted under section 3757 of the Code of 1886. The evidence on which he was convicted establishes the following facts: In October, 1887, the accused hired by a verbal contract Gus Travis, who is the laborer alleged to have been interfered with, to work for him from the date of the employment until January 1, 1889. He was working for the accused under this contract when the indictment was found in August, 1888. In December, 1887, Gus Travis and Morgan Lynn entered into a written contract by which Travis was to work for Lynn during 1888; and in January, 1888, Lynn informed the defendant that Travis was under a written contract with him to work during that year, and that he wished him to discharge Travis, which the accused did not do. The evidence was in conflict as to what was said at this time, but this is immaterial. Section 3757 makes it a criminal offense for any person to knowingly interfere with, hire, employ, entice away, or induce to leave the service of another, any laborer or servant who has contracted in writing to serve such other person for any given time not to exceed one year, before the expiration of the time contracted for, without the consent of the party employing, given in writing, or in the presence of some credible person. By the next succeeding section the fact that any laborer or servant, having contracted as provided in section 3757, is afterwards found in the service or employment of another before the termination of such contract, is prima facie evidence that such person is guilty of a violation of that section, if he fail and refuse to forthwith discharge such laborer or servant, after being notified and informed of such former contract or employment. On proof of the written contract, and the failure of the accused to discharge Travis on being informed of such contract, the jury, in the absence of rebutting or explanatory evidence, would have been authorized to find the defendant guilty. But the prima facie case thus made may be overcome and disproved. The evidence clearly shows that Travis had been employed by the defendant prior to the making of the written contract with Lynn, for a term unexpired at the time he was informed of such written contract. It is true, the contract with the defendant, being for a term of service extending beyond one year, was void under the statute of frauds, but a mere stranger to the contract cannot question its validity. The parties may treat it as valid, and perform it. In such case, other persons cannot avail themselves of the objection, when the parties have waived it. Had Travis, upon making the contract with Lynn, quit the service of defendant, this would have been an avoidance of the contract with the accused; but he treated it as valid, and continued to render service under it. to a case where the accused had a prior valid, the laborer, the term of which had not expired. v.5so.no.22-37 The statute does not apply though verbal, contract with Turner v. State, 48 Ala. 549. It having been clearly shown that defendant had a prior contract with Travis, the term of which had not expired, and which he was performing, the court should have given the affirmative charge in favor of defendant. Reversed and remanded. KNOX et al. v. CHILDERSBURG LAND Co. (Supreme Court of Alabama. March 1, 1889.) 1. HUSBAND and Wife-WIFE'S POWER TO CONTRACT-EXECUTORY CONTRACTS. Code Ala. § 2348, provides that a married woman cannot alienate her lands, or any interest therein, without the assent and concurrence of the husband; manifested by his joining in the alienation in the mode prescribed by law for the execution of conveyances of land. Section 2346 gives her full capacity to contract in writing, as if she were sole, with the assent of the husband. Held, that an agreement to sell land, executed by the wife in writing, with the assent of the husband expressed in writing, is as binding, and may be enforced in the same manner, as if she were unmarried. 2. SAME-SPECIFIC PERFORMANCE-PLEADING. A bill for the specific performance of a married woman's contract, which fails to aver that it was in writing, signed by herself and husband, is demurrable. 3. CORPORATIONS-AGREEMENT TO SUBSCRIBE BEFORE INCORPORATION. An agreement was entered into by several persons to convey designated lands to a trustee, and to form a land company, to which, when incorporated, the lands should be conveyed by the trustee, and stock issued to each subscriber to an amount equaling the land conveyed. At that time stock could be made payable in money, or in property at its money value. Code Ala. 1876, § 1805. Prior to the incorporation of the company, by Code 1886, § 1662, it was declared that all subscriptions to capital stock of such a corporation must be payable in money, which might be discharged by a conveyance of property at a reasonable value. Held that, as the agreement to subscribe had become illegal before it was accepted by the act of incorporation, it could not be enforced. Appeal from chancery court, Talladega county; S. K. MCSPADDEN, Chancellor. Bill by the Childersburg Land Company against Knox and others, for specific performance of a contract to convey lands. The fifth and sixth grounds of demurrer referred to are as follows: "(5) The bill shows that the agreement was to make subscriptions payable in lands, and said corporation, when organized, had no authority to take such subscriptions. (6) The bill avers that said corporation was organized in January 23, 1888, in conformity to the law, by filing a declaration with the probate judge of Talladega county, as a land and improvement company. Said company cannot, therefore, enforce any subscription or agreement to subscribe to its capital stock, which was to be payable in land, which the bill seeks to do." The chancellor overruled all the grounds of demurrer, and the defendants appeal. Cecil Browne, for appellants. Knox & Bowie, for appellee. STONE, C. J. The present bill was filed for the specific enforcement of an agreement to convey lands. The complainant, the Childersburg Land Company, claims to have succeeded to the right to have the agreement specifically performed. There was a demurrer to the bill, assigning grounds which the chancellor overruled, and from that ruling the present appeal is prosecuted. The demurrer admits the truth of every averment that is well pleaded. Flewellen v. Crane, 58 Ala. 627; Railway Co. v. Rand, 83 Ala. 294, 3 South. Rep. 686. The agreement this bill seeks to enforce is alleged to have been entered into May 21, 1887. Over 20 persons are charged to have been parties to it, several of them married women. The purport of the agreement, as set forth, was that the several contracting parties agreed together each to convey designated lands to a named trustee, for purposes presently stated. The stipulations were that a land company should be formed and incorporated, and, when |
