impossibility to comprehend this distinction. And when we go to the statement of the alleged grounds attempted by some English judges we are but confirmed and reassured that it does not and cannot exist at all. The case of Atlee v. Backhouse, 3 Mees. & W. 633, is generally cited and put forward as stating the grounds upon which the English courts deny the analogy between money paid and a contract made to obtain the release of goods wrongfully withheld. That was decided by the court of exchequer, composed of five judges. Four of the five made deliverances. The chief baron, Lord Abinger, seems to go upon the theory that, unless goods wrongfully seized are seized for the purpose of enforcing the payment of money, money paid for their release cannot be recovered back, and that in the case in hand the seizure was not made for the purpose of enforcing the payment of money. It requires no argument to demonstrate that this is not, and never was, the law. It is wholly immaterial what actuates the unlawful seizure of another's property. And if it had been the law, it would have had no application in that case, because the seizure was made to enforce the payment of penalties claimed to have been incurred by the owner under the excise laws. Barons Bolland and Gurney did not touch upon the question we have in hand, and it was thus left to Baron Parke to set forth the distinction in question, and the reasons for it; and thus he went about it: "There is no doubt of the proposition laid down by Mr. Erle that, if goods are wrongfully taken, and a sum of money is paid, simply for the purpose of obtaining possession of those goods again, without any agreement at all, especially if it be paid under protest, that money can be recovered back; not on the ground of duress, because I think that the law is clear, although there is some case in Viner's Abridgment to the contrary, that, in order to avoid a contract by reason of duress, it must be duress of a man's person, not of his goods, and it is so laid down in Sheppard's Touchstone (page 61),—but the ground is that it is not a voluntary payment. If my goods have been wrongfully detained, and I pay money simply to obtain them again, that, being paid under a species of duress or constraint, may be recovered back; but if, while my goods are in possession of another person, I make a binding agreement to pay a certain sum of money, and to receive them back, that cannot be avoided on the ground of duress." The lameness and impotency of this statement is painfully obvious. In it the learned judge assumes the validity of the contract which was the question and the only question litigated in the case. Of course, if one, to recover the possession of his goods unlawfully withheld, makes a binding contract, why the contract is binding-that's all; and there is an end of his suit, brought on the theory that the contract is not binding. But this assumption of the judge is a minor, 31 So.-62

and perhaps an inadvertent, infirmity in his argument. In other respects it is inconsistent and self-contradictory on its face, and essentially so in law. He declares that such payment is not a payment under duress at all, but that it is a payment under a species of duress. We are not aware that there are different species of duress apportionable to this or to that act into which a party is illegally coerced, or that that sort of duress which constrains a party to pay money to recover his goods is a different sort of duress from that which constrains him to promise to pay money to recover his goods. We have had and now have the notion that anything done by one party which illegally constrains the other to an act against that other's will is duress; and to say that an act is not avoided by duress, but is avoided because it is not voluntarily done, is a patent contradiction in terms. The learned judge, while undertaking to declare that a payment of money under the circumstances named is not a payment made upon duress of goods, has in fact declared that it is a payment under duress, and for that reason recoverable. All the American courts dealing with this subject have put the ground of such recovery expressly upon duress, actual or threatened, of goods,-this court among them (Raisler v. Athens, 66 Ala. 194); and there is no other ground upon which it can be rested. This doctrine of recovery of money paid under duress being thoroughly established, and proceeding upon a principle which palpably applies fully as well and cogently to contracts made upon duress of goods, cannot logically be excluded from application to such contracts. The supreme court of Pennsylvania, after adverting to the well-established right to recover back money paid under du ress of goods, proceeds: "If, therefore, such be the case, where the money has been actually paid, a fortiori is such a defense available in an action upon a promissory note extorted from the owner of goods unlawfully withheld to obtain possession of them." White v. Heylman, 34 Pa. 142, 145. We fully approve the language of Judge Gaines in Oliphant v. Markham, supra: "Notwithstanding the doctrine of the English courts [that there is no such thing as duress of goods], it is well settled by them that money paid in order to get possession of goods unlawfully detained may be recovered back. The two rules recognized by the courts of England, it seems to us, lead to an obvious absurdity: that is to say, when one pays money in order to obtain possession of his goods unlawfully obtained by another he may recover it back, but if he gives his note under the same circumstances, and for the same purpose, he cannot resist its payment." 79 Tex. 543, 15 S. W. 569, 23 Am. St. Rep. 363.

The exigencies of this case do not require us to decide whether, in all cases where a contract is made to recover possession of goods unlawfully withheld from the owner, such contract may be avoided for duress.

But upon the authorities and considerations to which we have adverted we do hold, confining ourselves to the case before us, that when the possession of one's goods is unlawfully held against him, and he has such an important, urgent, and immediate occasion for their possession and use as cannot be subserved by a resort to the courts to recover them,-"such an immediate want of his goods that an action of trover [or detinue] would not do his business" (Astley v. Reynolds, 2 Strange, 916),-he may avoid any contract he enters into with the wrongdoer in order to regain possession of them. The bill of complaint brings this case within this ruling. It shows an equity in the complainants to have the note and mortgage executed by them to the respondent to regain possession of their horses and wagons canceled and avoided, and the chancellor erred in dismissing it for want of equity. The bill is perhaps faulty in some respects,-as, for instance, in not positively averring with more particularity the immediate injury that would have ensued to complainants' business from the longer detention of their property by the respondent,-but it is not open to any of the objections taken by the demurrer. That should have been overruled.

The decree of the chancery court is reversed, and a decree will be here entered overruling the demurrers and denying the motion to dismiss for want of equity. versed and rendered.

Re

MARKS et al. v. WOOD. (Supreme Court of Alabama. April 24, 1902.) EXECUTIONS-INDORSEMENT OF COSTS-ITEMS --CLAIMANT OF THIRD PARTY-DIRECTION OF VERDICT.

1. Under Code, § 1883, providing that on every execution the clerk must state the several items composing the bill of costs, and that without such copy of the bill of costs the execution is illegal, where, after two execu tions have been issued and returned unsatisfied, a third is issued, on which the clerk's and sheriff's fees on the prior executions are stated in gross, and not itemized, the execution is void, and will not support a levy.

2. Where a third party claims property levied on by a sheriff under execution, and on the trial of an action to determine the ownership of the property the court refuses to admit the execution in evidence because it is void, a verdict should be directed for the claimant.

Appeal from circuit court, Lowndes county; J. C. Richardson, Judge.

Action by S. C. Marks and another against Clemen Wood to determine the ownership of property levied on under an execution against G. T. Wood and claimed by defendant. From a judgment for defendant, plaintiffs appeal. Affirmed.

In August, 1897, Marks & Gayle, a partnership, recovered a judgment against one G. T. Wood in the circuit court of Lowndes county. Upon this judgment an execution was issued on September 10th, and was re

turned "No property found." In April, 1899, an alias execution was issued upon said judg ment, and in August, 1899, it was returned "No property found." On October 30, 1899. a pluries execution was issued upon said judgment. This execution was levied upon certain personal property on November 1, 1899. On November 3, 1899, the appellee, Clemen Wood, made an affidavit claiming the property levied upon as hers, and gave bond as required by law. Thereupon a suit was instituted for the trial of the right to the property levied upon between the plaintiffs in execution and the claimant. Upon the trial of the claim suit thus instituted the plaintiffs in execution introduced in evidence a judgment rendered in their favor against G. T. Wood, and the original and alias execution issued upon said judgment, and which were returned into court "No property found.” Upon plaintiff offering to introduce in evidence the pluries execution under which the levy was made upon the property in controversy, the claimant objected to the introduction of such execution, upon the following grounds: (1) Said execution was void on its face. (2) Said execution failed to set forth the itemized statement of the several items composing the bill of costs named therein. (3) Said execution contained as a part of the bill of costs, under the head of "Clerk's Fees," the statement, "Fees on former fi. fa., $5.75,” and failed to set out the items composing said fees on the former fi. fa. (4) Because said execution contained as a part of the bill of costs, under the head of "Sheriff's Fees," the statement, "Fees on former fi. fa., $2.05." and failed to set out the items composing such fees on the former fi. fa. The court sustained the claimant's objection, and refused to allow plaintiff to introduce in evidence said pluries execution. To this ruling of the court the plaintiff duly excepted. The statement of the costs attached to the execution is sufficiently stated in the opinion. The plaintiffs then introduced in evidence the affidavit and claim bond made and given by the claimant, and introduced testimony showing separately the value of the articles of property levied on under the execution, and that said property was found in the possession of G. T. Wood. The claimant introduced no evidence. The plaintiffs requested the court to give to the jury the general affirmative charge in their behalf, and duly excepted to the court's refusal to give such charge as asked. The court, at the request of the claimant, gave the general affirmative charge in her favor, and to the giving of this charge the plaintiffs duly excepted.

Marks & Sayre, A. D. Pitts, and C. A. Whitten, for appellants. Powell & Middleton, for appellee.

MCCLELLAN, C. J. Section 1364 of the Code provides that clerks of courts and sheriffs must keep fee books, and that each such

officer "must enter therein, in the form of a regular account opened for that purpose, every fee charged by him for every distinct service rendered by him." Section 1365 provides that "no clerk, register or sheriff shall demand or receive a fee for any service by him performed not justified by a charge entered in his fee book." And section 1883 is as follows: "At the foot, or on some part of the execution, the clerk must state, in intelligible words and figures, the several items composing the bill of costs; and without such copy of the bill of costs, the execution is illegal, and shall not be levied." There is no warrant in this language, and no reason outside of it, for saying that this section applies to original executions only, and not to alias and pluries writs. It applies alike to all executions issued by the clerk of the circuit court. Looking alone to the letter of this section, it would seem to be fairly certain that it requires the charge for each act of service performed by the clerk and sheriff, etc., to be separately stated on the execution, but any doubt that might be supposed to exist as to this is dissipated when its requirement that the statement on the execution shall be a copy of the bill of costs is considered along with the requirement of section 1364, supra, that on the bill of costs shall be entered every fee charged by the officer for every distinct service rendered by him. Now, it is clear, and not questioned by counsel in this case, that with reference to the issuance and return of an execution both the sheriff and the clerk perform several acts of distinct service, for each of which a fee is allowed by law, and required by section 1364 to be separately entered on their respective bills of costs in their fee books, and that there is no one act of service on the part of the clerk in that connection which can amount to the sum of $5.75, nor any one act of service on the part of the sheriff for which a fee of $2.05 is allowed. The execution issued in this case on the 30th day of October, 1899, and levied on the property involved in the claim of Clemen Wood, was the second or third to issue; the other or others having been returned "No property." In the statement of the costs attached to this execution are the following entries: "Clerk's Fees. * Fees on former fi. fa., $5.75. Sheriff's Fees. * * Fees on former fi. fa., $2.05." Each of these statements is in form an "omnium gatherum," and accurately so. Each is in fact a lump statement of the aggregation of the fees allowed for several distinct acts of service rendered by the respective officers. Neither of them is a copy of the bill of costs in reference to said service, and neither of them is a statement "of the several items composing the bill of costs." By the very letter of section 1883, therefore, the execution of October 30, 1899, was illegal, and by that section its levy was and is unequivocally and mandatorily interdicted and forbidden. It

*

was void upon every elementary principle obtaining in the premises. The levy was void. The court properly excluded this waste paper from the evidence. The burden being upon the plaintiffs on the issue made on Clemen Wood's claim to show a valid execution and a valid levy on property in the possession of defendant in execution, and they having failed to carry this burden, the circuit court properly gave the affirmative charge for the claimant. Affirmed.

BIRMINGHAM SOUTHERN R. CO. v. CUZZART.

(Supreme Court of Alabama. April 23, 1902.) MASTER AND SERVANT-RAILROADS-PERSONAL INJURIES-FELLOW SERVANTS-PLEADING-CONSTRUCTION EVIDENCE - DISEASE -JUDICIAL KNOWLEDGE-INSTRUCTIONS.

1. Code, 1749, subd. 2, gives an employé an action for damages for injury from negligence of an employé who has superintendence intrusted to him, and subdivision 5 gives such action for the negligence of an employé who has charge or control of an engine. Held, that a complaint alleging that an employé "who was in charge and control and superintendence of defendant's engine" negligently moved it, injuring plaintiff, clearly alleged charge of an engine, and was not demurrable as indefinite, and as attempting to join the two causes of action.

2. Where a complaint against a master alleged that "a coupling pin was thrown with great force into plaintiff's face, striking him near his eyes, whereby serious injury was inflicted on plaintiff, his right eye being permanently impaired, disfigured, and injured, and from which plaintiff has suffered great mental and physical pain and anguish," the clause "and from which plaintiff has suffered," etc., referred back to the averment as to the pin striking him; and plaintiff's testimony that from this blow he suffered pain was competent.

3. In an action for personal injuries, one alleged result of which was weak and inflamed eyes, it was not error to exclude questions asked plaintiff on cross examination, as to whether members of his family did not have weak eyes, as the court could not take judicial notice that the disease might be inherited, but evidence to that effect should have been offered.

4. Where, in an action for personal injuries, a physician testified that the inflamed and weak condition of plaintiff's eyes was not the result of the blow received by him, but resulted from granulation of the lids, but plaintiff testified that it resulted from the blow, it was not error to refuse to instruct that if the jury believed that plaintiff's trouble consisted of a granulation of the lids they could not find for him.

5. In an action for personal injuries it was not error to refuse to instruct that plaintiff had been able since his injury to earn approximately as much as before, even if the evidence was without conflict to that effect.

6. An instruction that "the jury, in considering the evidence as to the extent of plaintiff's injuries, can consider, along with all the balance of the evidence, the fact, if it be a fact, that plaintiff went to work three days after the accident, and continued to work till last Saturday. This must be considered by the jury along with all the other evidence,"-was properly refused, as the instruction gave undue prominence to a single fact.

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by James P. Cuzzart against the Birmingham Southern Railroad Company. From a judgment for plaintiff, defendant | appeals. Affirmed.

This was an action brought by the appellee, James P. Cuzzart, against the Birmingham Southern Railroad Company, to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant. In the complaint the plaintiff claimed $8,000 damages, and it was averred that at the time of the accident complained of the plaintiff was in the employ of the defendant as a switchman, it being his duty, under such employment, to couple cars together and couple defendant's locomotive to cars. The complaint then averred as follows: "That while plaintiff was so engaged in the performance of his duty, and standing upon the footboard of defendant's engine, ready to couple a car thereto, when said car should be reached, defendant's engineer, one Ike Veitch, who was in charge and control and superintendence of said engine, negligently moved the said engine at a very high, extraordinary, and dangerous rate of speed up to and against a car on the track of defendant, whereby a coupling pin in or on said car was thrown with great force into plaintiff's face, striking him near his eyes, whereby serious injury was inflicted upon plaintiff, his right eye being permanently impaired, disfigured, and injured, and from which plaintiff has suffered great mental and physical pain and anguish." The defendant demurred to the complaint upon the following grounds: "(1) For that there is a misjoinder of actions, in this: that plaintiff seeks to join in the same count actions under subdivisions 2 and 5 of section 1749 of the Code; (2) for that said complaint is uncertain and indefinite, in that it does not allege or show whether the plaintiff relies on an action under subdivision 2 or subdivision 5 of section 1749 of the Code; (3) for that said complaint alleges that the accident complained of resulted proximately from the negligence of one who had superintendence intrusted to him, but it does not allege or show that the act or negligence complained of was committed whilst in the exercise of such superintendence." This demurrer was overruled, and the defendant duly excepted. Thereupon the defendant pleaded the general issue and a special plea, setting up the contributory negligence of the plaintiff. The undisputed evidence showed that at the time of the accident the plaintiff was in the employment of the defendant as a switchman, and it was his duty to assist in switching the cars and to couple and uncouple the cars to one another and to the engine; that he was riding on an engine that was moving towards a car for the purpose of making a coupling with it, which coupling was to be

Dr.

made by the plaintiff; that when the engine and car came together, the coupling pin flew out and up and struck the plaintiff on the frontal bone, just over his right eye. The plaintiff, as a witness in his own behalf, testified that the result of the accident was the practical loss of his right eye from this lick. The other evidence for the plaintiff tended to show that the engine was running at an unusual rate of speed, and struck the car with which the coupling was to be made very hard, and with a great deal of force. and that this blow was the cause of the coupling pin flying up and hitting the plaintiff. It was also shown by the undisputed evidence that the plaintiff returned to work for the defendant three days after the accident, and worked for the defendant about 2 months thereafter at the same wages; that after leaving the employment of the defendant he worked with other companies, and had been continuously employed up to a few days before the trial, and that the plaintiff had earned approximately the same wages after the accident as before it. Dr. S. L. Ledbetter, as a specialist in diseases of the eye, testified that he had examined the plaintiff, and that the condition of the plaintiff's eye was not caused by the blow received from the coupling pin; that the plaintiff's eyes were diseased, but that the disease was caused from granulation of the lids. J. C. Berry, a practicing physician, testified that he dressed the wound of the plaintiff when he was hurt in the accident for which the suit was brought; that the wound was a small laceration above the eye in the edge of the eyebrow; but that the eye was hurt in no way by the blow received. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe all the evidence in this case, they must find a verdict for the defendant.” "The court charges the jury that, under the evidence in this case, they cannot find a verdict for plaintiff for any alleged injury to his eye." (6) "If the jury believe from the evidence that the trouble to plaintiff's eye consists of granulation of the lids and a flattening of the eye, and a cloudiness of the cornea of the eye, then they cannot find a verdict for plaintiff on account of any alleged injury to his eye." (7) "The court charges the jury that in this case the evidence shows that the plaintiff, since the accident happened to him, has been able to earn approximately as much money, by his work, as he did before the accident." (8) "The court charges the jury that even if they should find a verdict for the plaintiff, they cannot allow him any damages on account of any inability on his part to earn as much money

(4)

now or in future, as he was able to earn before the accident." (9) "The court charges the jury that in this case the evidence shows that plaintiff is able to earn as much money now as he was earning before the happening of the accident." (10) "The court charges the jury that, in considering the evidence in this case as to the extent of the injuries received by the plaintiff, they can consider, along with all the balance of the evidence in the case, the fact, if it be a fact, that plaintiff went to work three days after the accident, and continued to work till last Saturday. This must be considered by the jury along with all the other evidence in the case." There were verdict and judgment for the plaintiff, assessing his damages at $750. The defendant moved the court for a new trial, upon the ground that the verdict of the jury was excessive; that the verdict was contrary to the evidence; and that the evidence in the case was not sufficient to support the verdict. This motion was overruled. To this ruling the defendant duly excepted. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Smith & Weatherly and E. D. Smith, for appellant. Arthur L. Brown and Sumter Lea, for appellee.

MCCLELLAN, C. J.

There is no merit in the demurrer to the complaint. An averment that A. "was in charge and control and superintendence of said engine," is no more than to aver that he was in charge of the engine; and the averment is supported by evidence that A. was the engineer operating the engine at the time in question. There was such evidence here. The court was, therefore, not in error, either in overruling the demurrer or in refusing the general charge request by defendant on the theory that the complaint averred one thing and the evidence went to prove another in this connection. The complaint alleges that, by reason of certain stated negligence of the engineer, "a coupling pin was thrown with great force into plaintiff's face, striking him near his eyes, whereby serious injury was inflicted upon plaintiff, his right eye being permanently impaired, disfigured, and injured, and from which plaintiff has suffered great mental and physical pain and anguish." The clause "and from which plaintiff has suffered," etc., naturally refers back to the averment as to the pin striking him with great force near the eyes. Plaintiff's testimony that from this stroke of the pin he had suffered pain in having headache a great deal, and in having had pains darting through his head in the region of the eyes, was relevant to the case so presented by the complaint, and was properly received.

The plaintiff testified that since the hurt described in the complaint his eyes, or one

of them, had, in consequence, been inflamed and weak. The theory of defendant was that this condition had existed before the injury was received. On cross-examination of the plaintiff, counsel for defendant propounded these questions to him: "State whether your father or mother, or some of your brothers and sisters, have got weak eyes?" and, "State whether your father has not got eyes that are inflamed and weak?" The court sustained an objection to each of these questions. Very high authority,-none other, indeed, than the Good Book itself,-is cited by counsel for appellant in support of his exceptions to these rulings of the court. They say: "There is no truer saying in the Bible than that the sins of the fathers shall be visited upon the children unto the third and fourth generations. This is a law of heredity, promulgated by the Almighty, and is known of all men." We have acquaintance with this sacred text; but we are not prepared to admit its application in the premises here. We do not know that inflamed or weak eyes is a sin within its terms, nor are we prepared to say that these infirmities have customarily such a descendible quality as that proof of them in the sire accounts for their existence in the son. The matter lies beyond our judicial ken. If the fact be as counsel insist it is in this connection, there should have been evidence of it. We do not judicially know it to be a fact. We do not think the city court erred in its rulings on the questions.

The sixth charge requested by the defendant proceeds on the assumption of the absolute truth of the testimony of Dr. Ledbetter and the absolute correctness of his opinion as to the causes of the condition of plaintiff's eyes. There was other evidence,-that of the plaintiff himself,-in conflict with his as to the causes of the condition in question, and the giving of this charge would have denied the jury's undoubted right to find in line with such other evidence.

Charges 7, 8, and 9 were properly refused to the defendant. The court was under no duty to tell the jury that the plaintiff has been able since his injury to earn approximately as much money as he did before, even if the evidence was without conflict to that effect. And there was evidence tending to show that he could not now earn as much as he did before the injury.

Charge 10, refused to the defendant, is bad for singling out and giving undue prominence to a particular fact of which there was evidence, and the infirmity is not relieved by the direction for this fact to be considered "along with all the balance of the evidence in the case."

We are not prepared to say that the ver. dict of the jury is so plainly against the weight of the evidence or unsupported by the evidence that a new trial should have been granted by the city court. Affirmed.